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Hood, J.
Appellant brothers of Mary Agnes Fitzpatrick, deceased, appeal as of right from an opinion and order which construes the decedent’s last will and testament. The probate court judge found that the testatrix’s deceased brothers, Lloyd and Frank Fitzpatrick, were within the class of persons entitled to take under the residuary clause, and thus in accordance with the antilapse statute, MCL 700.134; MSA 27.5134, their children, the appellees, would take by representation in their place. We affirm._
There is no dispute between the parties as to the factual background and no testimony was offered by the parties below to aid in the interpretation of the will because no witnesses were known to either party who had any relevant information. The decedent executed her will on July 8, 1961. At that time she had four living brothers: appellants Robert Fitzpatrick and Emmet Fitzpatrick, and also Frank Fitzpatrick and Irving Fitzpatrick. A fifth brother, Lloyd Fitzpatrick, died in 1956 before the will was executed. At the time of her death in 1985, her only living brothers were the appellants. Irving predeceased the decedent, leaving no issue, and Frank left one child, appellee Colleen Wolfe. Lloyd left four children who survived the decedent and are the remaining appellees in this case.
The will is partially typewritten and partially handwritten. The pertinent provision for our inquiry states:
Third: All the rest, residue and remainder of my estate, real, personal and mixed, of whatever nature and wherever situated, which I now own or may hereafter acquire, and to which I may be legally or equitable [sic] entitled at the time of my death, I give, devise and bequesth [sic] as follows:
My share of the farm of which I am co-owner with my brother Irving to my Brother Irving solely.
My car and whatever cash I possess to my Brother Irving.
After all my funeral expenses, and any other debts I may have are paid, I request the remainder of the money be divided among my remaining Brothers. My diamonds are to be sold, and the cash to be divided among my Nieces and Nephews. The remainder of my personal things divided [?- illegible] among my sister-in-laws [sic].
It is not disputed that since Irving predeceased the testatrix without issue, his specific devise and bequests lapsed and became part of the residuary estate. The central issue in this case revolves around the interpretation of the sentence, "after all my funeral expenses, and any other debts I may have are paid, I request the remainder of the money to be divided among my remaining Brothers.” Appellants contend that by the use of the phrase "remaining Brothers” the testatrix meant "surviving brothers.” Accordingly, they claim, since Robert and Emmet Fitzpatrick were the only two brothers to survive the decedent, all of the residuary bequest belongs to them to the exclusion of the children of Lloyd and Frank.
On the other hand, appellees argue that by the use of the phrase "my remaining Brothers” the decedent meant to give her residuary estate to her "other brothers,” that is, her brothers other than Irving. Reading the will this way, the appellees contend that Lloyd and Frank were within the class of persons entitled to the residuary estate and therefore, in accordance with Michigan’s antilapse statute, their issue take in their place by representation.
The probate court judge accepted the position of the appellees. The judge reasoned that under Michigan law the antilapse statute will be applied unless the testatrix makes evident by clear and unequivocal language in the will that she desires to dispose of her property in a manner different from that contemplated by the antilapse statute. In this case, while the word "remaining” could reasonably mean brothers other than Irving, it could also reasonably mean surviving brothers. Since the will presents a reasonable doubt as to the testatrix’s intent, the court found that the application of the antilapse statute was not avoided. The judge also concluded that the anti- lapse statute operated to save the bequests of Lloyd Fitzpatrick, who died prior to the execution of the will, and Frank Fitzpatrick, who died after the execution of the will but before the testatrix, and to pass those bequests by representation to the appellees.
Findings of the probate court, sitting without a jury, are to be reversed by this Court only when clearly erroneous. In re Burruss Estate, 152 Mich App 660, 663-664; 394 NW2d 466 (1986); In re Wojan Estate, 126 Mich App 50, 53; 337 NW2d 308 (1983), lv den 418 Mich 873 (1983). While the cardinal rule of interpretation of testamentary instruments is that the intent of the testatrix governs if it can be discovered, where the intent of the testatrix is uncertain, courts must apply rules of construction. In re Hund Estate, 395 Mich 188, 196; 235 NW2d 331 (1975), reh den 395 Mich 923 (1976); In re Dodge Trust, 121 Mich App 527, 542; 330 NW2d 72 (1982), lv den 418 Mich 878 (1983). In this case the will creates a class gift, but the meaning of the phrase "my remaining Brothers” makes the composition of the class ambiguous. The current Michigan antilapse statute, MCL 700.134; MSA 27.5134, explicitly applies to class gifts and states:
Sec. 134. (l)If a lineal descendant of a grandpar ent of the testator who is designated as a devisee or would have been a devisee under a class gift had the descendant survived the testator, fails to survive the testator, whether the devisee dies before or after the execution of the will, or is deemed to have predeceased the testator, the issue of the deceased devisee who survive the testator by 120 hours shall take in place of the deceased devisee by representation. A person who would be a devisee under a class gift if that person survived the testator is treated as a devisee for purposes of this section whether that persons’s death occurred before or after the execution of the will.
(2) Except as provided in subsection (1), if a devise other than a residuary devise fails for any reason, it becomes a part of the residue.
(3) Except as provided in subsection (1), if the residue is devised to 2 or more persons and that share of 1 of the residuary devisees fails for any reason, his or her share passes to the other residuary devisees in proportion to their interests in the residue.
The rules for the construction of a will in light of the antilapse statute are to be applied "unless a contrary intention is indicated by the will.” MCL 700.133(2); MSA 27.5133(2); In re Burruss Estate, supra at 665.
As the probate judge stated, the antilapse statute will be applied unless the testator makes evident by "clear and unequivocal language” in the will that he desires to dispose of his property in a manner different from that contemplated by the antilapse statute. Rivenett v Bourquin, 53 Mich 10, 12; 18 NW 537 (1884) (applying the predecessor version of the current antilapse statute). If there is "any reasonable doubt” about whether the testator intended to avoid the application of the statute, the "statutory construction must prevail.” Id. The antilapse statute was in tended to remedy the common law situation where a devise/bequest to a close relative of the testator lapsed because the relative predeceased the testator and the testator had made no provision for such a contingency. Strong v Smith, 84 Mich 567, 571-572; 48 NW 183 (1891) (explaining purpose of the former antilapse statute). Rather than intending to allow the gift to lapse, it was assumed by the Legislature that the desire of the typical testator would be that the issue of the deceased relative should take in the relative’s place if this unforeseen death occurred. Id. Accordingly, the current statute supplies a substitute taker (the issue of the deceased relative) where the relative would have taken under the will had he survived the testator even if the relative dies before or after the execution of the will.
In interpreting the will in the instant case it is evident that the probate court was faced with two plausible explanations of the meaning of the phrase "my remaining brothers.” Appellants present several arguments suggesting that the phrase means "my surviving brothers.” Most persuasive is their argument that it is not logical to conclude that by using the phrase "remaining Brothers,” the decedent meant her "other brothers,” especially if the court interpreted "other brothers” to include Lloyd, who was not living at the time the will was executed. They credibly argue that in drafting a will a testator would not use the phrase "remaining brothers” to include a brother already deceased.
The limited case law construing the word "remaining” is of little assistance. In LaMere v Jackson, 288 Mich 99; 284 NW 659 (1939), overruled on other grounds in In re Brown Estate, 362 Mich 47, 52; 106 NW2d 535 (1960), our Supreme Court despaired of giving a definite meaning to a para graph in a will containing the phrase "remaining brothers and sisters” and declared the paragraph void. Decisions in other jurisdictions have reached results which would support the positions of both sides. Cf. Smith v Myers, 212 Pa 51; 61 A 573 (1905) (interpreted phrase "the remaining children” to mean "other children” rather than "surviving children”) and Union National Bank v Bunker, 232 Mo App 1062, 1066; 114 SW2d 193 (1938) (interpreted phase "remaining legatees in this paragraph” to mean "other legatees listed in the paragraph,” not "surviving legatees”) with Henderson v Henderson, 131 Md 308, 311-313; 101 A 691 (1917) (interpreted "remaining son” to mean "surviving son,” not "other son”) and Marbury v Bouse, 187 Md 106; 48 A2d 582 (1946) ("remaining children above named” interpreted to mean "surviving children”). This case law tends to prove only that the word "remaining” lacks the solid technical meaning attached to other words in the law of decedent’s estates (e.g., "surviving”).
Appellants also argue that, because the "remainder of the money” was to be divided among the "remaining Brothers” after the funeral expenses and other debts were paid, the testatrix only intended to leave property to people who survived her. They assert that the class is ascertained at the time of the testatrix’s death and that the antilapse statute is inapplicable until the class is specifically identified at that time. Appellants point to Eberts v Eberts, 42 Mich 404; 4 NW 172 (1880), where our Supreme Court stated that a devise of property to the surviving children of brothers of the testatrix is to be construed as meaning those surviving at her death, and not those who were alive when the will was made. See also Sturgis v Sturgis, 242 Mich 52; 217 NW 771 (1928) (remainder to life tenant’s sons, "if any shall survive him,” vested in sons surviving testator and not merely in sons surviving life tenant). Indeed, citing these two cases, 23 Michigan Law & Practice, § 194, p 500 states:
Under an immediate gift to a class, unless there is a manifestation of a different intention on the part of the testator, membership in the class is to be fixed as of the time of the testator’s death, so as to comprehend all answering the class description at that time.
However, 96 CJS, Wills § 695(l)(a), p 35 states that determination of members of a class may also be referable to the date of the will and adds that "[t]he ascertainment of any class which is described in a will should be referred to the earliest possible period consistent with a fair interpretation of the will.”
Appellants’ other argument, that interpreting "remaining Brothers” to mean brothers other than Irving would result in an unintended and unequal distribution of decedent’s estate among her brothers’ families, is not so persuasive. As the appellees urge, interpreting "remaining Brothers” to mean brothers other than Irving would likely result in a more nearly equal distribution of the decedent’s estate among the brothers’ families than would the appellants’ proposed testamentary scheme. Assuming the children of the brothers would normally inherit some of their fathers’ estates, a roughly equal distribution of the decedent’s estate would be achieved because the nieces and nephews would each share in the portions of the decedent’s estate which would filter down through their fathers’ estates the specific bequests given to them in the will. As appellants would have it, just two of the brothers would receive the entire residuary estate. Thus, assuming the appellants’ children will inherit from their fathers, only some of the nieces and nephews would have the benefit of sharing in the portion of the testatrix’s estate which they presumably would have inherited from their fathers.
Moreover, as the appellees state, the law favors the construction of a will which will make a distribution most nearly in accordance with the statutes of descent and distribution as the language will permit. In re Horrie Estate, 365 Mich 448, 454; 113 NW2d 793 (1962); Gardner v City National Bank & Trust Co, 267 Mich 270, 279; 255 NW 587 (1934); Rivenett, supra at 14. Under the law of descent and distribution, had the decedent died intestate, her residuary estate would have passed to the parties in this appeal in the same manner that it passed by applying the antilapse statute as the probate court did. MCL 700.106(c); MSA 27.5106(c). Thus, the probate court’s construction is favored and the appellants’ proposed construction is disfavored.
In summary then, faced with almost equally plausible arguments on each side, we cannot conclude that the probate court’s construction of the will was clearly erroneous. Having determined that brothers Lloyd and Frank were properly within the class of persons entitled to share the residuary estate, the probate court correctly decided that the antilapse statute prevented their bequests from lapsing. Accordingly, the probate judge properly ruled that the appellees took in place of their fathers.
Affirmed.
Regarding class gifts, the statute is similar to §2-605 of the Uniform Probate Code, see 8 ULA Master Edition, p 144, where the comment explains:
The section is expressly applicable to class gifts, thereby eliminating a frequent source of litigation. It also applies to the so-called "void” gift, where the devisee is dead at the time of execution of the will. This, though contrary to some decisions, seems justified. It still seems likely that the testator would want the issue of a person included in a class term but dead when the will is made to be treated like the issue of another member of the class who was alive at the time the will was executed but who died before the testator. | [
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Per Curiam.
Following a jury trial defendant was convicted of first-degree murder, MCL 750.316; MSA 28.548, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Defendant was sentenced to life imprisonment and appeals as of right contending that he was denied effective assistance of counsel by trial counsel’s failure to seek suppression of evidence of a photographic identification of defendant made without defendant’s counsel present and by trial counsel’s failure to impeach a witness with his preliminary examination testimony. We find both allegations of error to be meritless and affirm defendant’s convictions.
Defendant contends that his trial counsel was ineffective under Michigan constitutional standards. Const 1963, art 1, § 17. In People v Gareia, 398 Mich 250, 264; 247 NW2d 547 (1976), the Michigan Supreme Court adopted the test formulated by the Sixth Circuit Court of Appeals in Beasley v United States, 491 F2d 687 (CA 6, 1974), as its standard of review of the effectiveness of assistance of counsel. As adopted, the standard requires that defense counsel "perform at least as well as a lawyer with ordinary training and skill in the criminal law” and conscientiously protect his client’s interest undeflected by conflicting considerations. The test was further interpreted to provide that, where a defense counsel fails to perform at this minimum level of competence, harmless error tests are not applied and it is unnecessary to affirmatively establish prejudice. People v Jenkins, 99 Mich App 518, 519; 297 NW2d 706 (1980). The Garcia Court further found that even where defense counsel’s performance satisfies the Beasley test, the defendant might nevertheless be entitled to a new trial if the defendant could show that his counsel had made a "serious mistake” but for which the defendant would have had a "reasonably likely chance of acquittal.” Garcia, supra. We find that defense counsel’s performance afforded defendant effective assistance of counsel under the Garcia standard.
First, defense counsel’s failure to move to suppress the photographic identification of defendant did not amount to ineffective assistance of counsel since the photographic line-up procedure was not defective. In People v Anderson, 389 Mich 155; 205 NW2d 461 (1973), a panel of this Court stated that, subject to certain exceptions, identification by photograph should not be used where the accused is in custody, and that where there is a legitimate reason to use photographs for identification of an accused in custody, the accused has a right to have counsel present during the identification procedure. In People v Lee, 391 Mich 618, 624-625; 218 NW2d 655 (1974), the Court said it was the fact of custody which required the implementation of the rules in Anderson. The Court specifically declined to extend Anderson to precustody or prequestioning phases of the criminal investigation. When the photographic line-up herein took place defendant was neither in custody nor was he readily available for a corporeal line-up. Moreover he had not become the focus of the investigation. See People v Harrison, 138 Mich App 74, 76; 359 NW2d 256 (1984), lv den 421 Mich 864 (1985).
"Readily available” has been strictly construed to mean subject to legal compulsion to appear at a line-up. Harrison, supra, and the cases cited therein. We do not find that, in this case, defendant was "readily available” for a corporeal lineup. No warrant had been issued for defendant’s arrest and thus the police had no means by which defendant could have been compelled to appear. Up to the time of the photographic identification, probable cause for defendant’s arrest was still lacking.
Nor do we find that defendant was the focus of the investigation. Other than the fact that defendant had been arrested and released there is no other evidence tending to show that defendant had become the clear focus of the investigation at the time that the photographic line-up was conducted. Simply because defendant was under investigation did not make it necessary for counsel to be present at a photographic line-up. Lee, supra; People v Hoerl, 88 Mich App 693; 278 NW2d 721 (1979); Harrison, supra, p 77. Hence, we conclude that the photographic identification procedure was proper and that trial counsel performed at least as well as a lawyer with ordinary training and skill in deciding not to move to suppress evidence of the identification. Nor do we find that defense counsel made a serious mistake but for which defendant would have had a reasonably likely chance of acquittal. Garcia, supra.
Defendant also contends that trial counsel’s failure to impeach Cornell Johnson by use of Johnson’s preliminary hearing testimony constituted ineffective assistance of counsel. We disagree. A review of the lower court record reveals that Johnson was the subject of rigorous cross-examination in an attempt to impeach his testimony with respect to the events which he witnessed on the morning that the victim was killed. Furthermore, defense counsel attempted to impeach Johnson’s credibility by pointing out Johnson’s prior convictions. We find that counsel’s performance was equal to that of a lawyer with ordinary training and skill and that he conscientiously protected his client’s interests. Moreover we do not find that failure to impeach Johnson on all contradictory aspects of his preliminary examination and trial testimony was a serious mistake but for which defendant would have had a reasonably likely chance of acquittal. Garcia, supra. Rather, his decision not to delve into all the differences constituted a matter of trial strategy for which this Court will not substitute its judgment. People v Harris, 133 Mich App 646, 654; 350 NW2d 305 (1984).
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Shepherd, P.J.
Plaintiff’s complaint alleged that she was fired in retaliation for reporting various safety law violations, contrary to the protections provided by the Whistleblowers’ Protection Act MCL 15.361 et seq.; MSA 17.428(1) et seq. The trial court granted summary disposition pursuant to MCR 2.116(C)(8), concluding that plaintiff’s exclusive remedy was an administrative action for wrongful discharge under the Michigan Occupational Safety and Health Act, MCL 408.1001 et seq.; MSA 17.50(1) et seq. We reverse and hold that an employee who reports a public health or safety violation to appropriate local authorities may maintain an action under the whistleblowers’ act notwithstanding the fact that the employer’s wrongful conduct also violates miosha.
We have examined the facts set forth in plaintiff’s complaint. Plaintiff was hired on October 8, 1984, to implement an accounting system for defendant Adamo Inc., and its three subsidiaries: Adamo Equipment Rental, Inc., Adamo Construction Co., Inc., and Adamo Wrecking Company, Inc. She was hired by defendant John Adamo, Sr., president and co-owner of Adamo, Inc. Shortly after she began working, plaintiff developed a variety of health problems. At some point, a problem became evident in defendants’ furnace, so that it would not shut off automatically and became very hot. Plaintiff could smell fumes in her work area which she determined came from the furnace. Plaintiff called the repair company which had recently repaired the furnace. The company refused to make further repairs, indicating that the furnace needed to be replaced. Another repair person stated that the furnace had a cracked block and was causing the fumes.
On February 26, 1985, plaintiff learned that her sister, who also worked for defendants in the same office, had been diagnosed as having carbon monoxide poisoning from breathing the furnace fumes. Plaintiff shut off the furnace and it remained off through February 27, 1985, while John Adamo was out of the office. When he returned on February 28, he apparently turned it on again and fumes were again present in plaintiff’s work area. Plaintiff complained to Adamo, but he refused to shut the furnace off or replace it, insisting instead that it be left on to "take the chill out of here.”
After working on March 4, 1985, plaintiff felt ill enough to visit the emergency room at Wyandotte General Hospital. Dr. Donald Reusink gave the following diagnosis and recommendation:
Accute [sic] chemical (carbon monoxide) intoxication with cerebral dysfunction. Positively advised not to re-enter the confines of her present position of employment until there is documented proof that she will no longer be exposed to carbon monoxide fumes.
During late February and early March, 1985, plaintiff called the Dearborn Health Department to complain about the furnace. On March 5, 1985, a Dearborn Fire Marshal and a sanitarian from the Dearborn Health Department inspected defendants’ premises. They found several problems with the furnace and concluded that the gas company should disconnect it until the furnace was repaired or replaced. The sanitarian shut off the furnace on March 6, 1985. The Dearborn Building and Safety Department subsequently inspected the furnace and issued a violation notice to defendants.
Plaintiff returned to work on March 18, 1985, after a new furnace had been installed. She submitted to John Adamo documentation of her medical expenses as a result of breathing carbon monoxide fumes. Plaintiff did not realize that, on the back of one sheet, she had written the names, numbers, and addresses of her doctor, the Dear-born Fire Marshal, and the Dearborn Health Department sanitarian. John Adamo fired plaintiff on March 21, 1985.
Plaintiff alleged that this was in retaliation for her report to the Dearborn Health Department. In addition to the whistleblowers’ claim, plaintiff’s complaint also contained a second count alleging defendants’ violation of public policy in firing her for exercising her right to speak out freely in protection of herself and other citizens. Defendants contend on appeal that plaintiff was fired for an unsatisfactory job performance.
Defendants moved for summary disposition pursuant to MCR 2.116(C)(8), alleging that plaintiff had failed to state a claim upon which relief could be granted. Defendants’ supporting brief urged that plaintiffs only recourse was an administrative action under miosha rather than the whistle-blowers’ act. In response, plaintiff stated that she was pursuing an administrative claim under miosha, but was also entitled to pursue her whistle-blowers’ claim. The trial court granted summary disposition on October 26, 1985, finding that miosha provided plaintiff with her exclusive remedy for alleged employment discrimination resulting from complaints under miosha.
A motion for summary disposition under MCR 2.116(C)(8) tests the legal basis of the complaint, not whether it can be factually supported. The factual allegations of the complaint are taken as true, along with any inferences or conclusions which may be fairly drawn from them. Unless the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover, the motion should be denied. Sponkowski v Ingham Co Road Comm, 152 Mich App 123, 126-127; 393 NW2d 579 (1986).
The whistleblowers’ act, MCL 15.362; MSA 17.428(2), provides:
An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because the employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, a violation or a suspected violation of a law or regulation or rule promulgated pursuant to law of this state, a political subdivision of this state, or the United States to a public body, unless the employee knows that the report is false, or because an employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action.
Miosha provides for an extensive body of regulations governing safety in the work place. The miosha provision relevant to this case is found at MCL 408.1065(1); MSA 17.50(65X1):
A person shall not discharge an employee or in any manner discriminate against an employee because the employee filed a complaint or instituted or caused to be instituted a proceeding under or regulated by this act or has testified or is about to testify in such a proceeding or because of the exercise by the employee on behalf of himself or herself or others of a right afforded by this act.
It appears that the trial court found miosha to be plaintiffs exclusive remedy under the facts of this case. As a result, the court apparently concluded that the whistleblowers’ act was unavailable to plaintiff and, thus, plaintiffs complaint failed to set out a claim upon which relief could be granted.
Defendants cite Ohlsen v D S T Industries, Inc, 111 Mich App 580; 314 NW2d 699 (1981), to support the conclusion that miosha provides plaintiffs exclusive remedy. In Ohlsen, the plaintiff claimed that his discharge was in retaliation for his protesting an unsafe place to work, a right afforded him under miosha. The circuit court granted summary judgment for failure to state a claim, concluding that plaintiff had no right to bring a civil action since miosha's provision for an administrative action provided the plaintiffs exclusive remedy. Finding no common-law right to refuse to work upon alleging an unsafe work place, this Court held that "the remedies provided in the miosha statute are exclusive and not cumulative.” 111 Mich App at 583.
We do not find Ohlsen determinative, however. The whistleblowers’ act was not involved in that case, since the Ohlsen plaintiff was fired in 1977 and the whistleblowers’ act did not become effective until 1981. The instant plaintiff is not seeking to enforce common-law rights, but statutory rights granted under a separate act. It is apparent that an overlap exists between the statutes and the protections they afford an employee. Miosha provides a remedy to an employee terminated in retaliation for filing a complaint or instituting a proceeding under miosha. MCL 408.1065; MSA 17.50(65). The whistleblowers’ act, on the other hand, provides a remedy to an employee terminated for reporting to any public body a violation of any law or regulation of this state, a political subdivision, or the United States. MCL 15.362; MSA 17.428(2).
Miosha relates to safety in the work place only. The whistleblowers’ act relates to all laws and regulations. Miosha encourages reporting to miosha officials. The whistleblowers’ act encourages reporting to all agencies responsible for enforcement. In the instant case both plaintiff and the City of Dearborn had an interest, independently of miosha considerations, to have the defective furnace reported immediately so that it could be corrected immediately for the protection of plaintiff and the general public. Therefore, the instant plaintiff’s complaint regarding the defective furnace apparently satisfies the requirements of both statutes. We hold that the Legislature has provided overlapping remedies for an employee whose employment is terminated in retaliation for such reporting. The Legislature has not provided that the employee must pursue only one statutory remedy.
The whistleblowers’ act is a relatively new statute. This Court analyzed it in some detail in the recent case of Hopkins v City of Midland, 158 Mich App 361; 404 NW2d 744 (1987). We held that the act "seeks to protect the integrity of the law by removing barriers to employee efforts to report violations of the law” and also "to protect the public by protecting employees who report violations of laws and regulations.” 158 Mich App at 374.
In Hopkins, the question was whether the Legislature intended the whistleblowers’ act to be judicially enforceable in a situation where the plaintiff also had arbitrable claims. Hopkins noted that the whistleblowers’ act specifically creates a "civil action.” MCL 15.363; MSA 17.428(3). It provides a full panoply of legal and injunctive remedies including reinstatement, payment of back wages, full reinstatement of fringe benefits and seniority rights, actual damages, as well as costs including reasonable attorney and witness fees. MCL 15.364; MSA 17.428(4). The whistleblowers’ act also creates a civil fine for violators of the act. MCL 15.365; MSA 17.428(5). Hopkins noted that these provisions exceed the typical scope of arbitration relief. 158 Mich App at 374.
The remedies provided by the whistleblower’s act also differ somewhat from the scope of relief under miosha. That act creates an administrative action within the Michigan Department of Labor, which can order all "appropriate relief, including rehiring or reinstatement” to the employee’s former position with back pay. MCL 408.1065(2); MSA 17.50(65)(2). The safety, health, and general welfare of employees is a primary public concern under miosha. By it, the Legislature intended "that all employees shall be provided safe and healthful work environments free of recognized hazards.” MCL 408.1009; MSA 17.50(9). These goals do not conflict with the goals of the whistle-blowers’ act outlined in Hopkins, and we see no reason, without further legislative direction, that plaintiff should not be able to pursue a cause of action under both statutes. Therefore, we do not share the trial court’s view that plaintiff could not proceed under the whistleblowers’ act.
Because it so held, the trial court did not determine whether plaintiff stated a prima facie claim under the whistleblowers’ act. From Hopkins, it appears that a prima facie case of retaliation in a discharge case requires proof (1) that plaintiff was engaged in protected activities as defined by the act, (2) that plaintiff was subsequently discharged, and (3) that a causal connection existed between the protected activity and the discharge. Taking the facts alleged in plaintiff’s complaint as true, we believe plaintiff has stated a claim upon which relief could be granted. Plaintiff reported the unsafe furnace to an appropriate public body, the Dearborn Health Department. This conduct was protected under the whistleblowers’ act, as it is clear plaintiff was reporting a public health violation. Defendants discharged plaintiff. The causal connection can be inferred from the fact that plaintiff complained to John Adamo about the furnace and he refused to act and the fact that plaintiff was then fired three days after her employer received documents from her bearing the phone numbers of various public agencies after defendants had been cited for work place safety violations.
Accordingly, we reverse the grant of summary disposition on plaintiff’s whistleblower claim and remand for further proceedings.
Reversed and remanded._
On appeal, plaintiff also states that she complained to the Michigan Occupational Safety and Health Bureau. We do not find such an allegation in her complaint, however. Moreover, while plaintiff’s complaint states that she called the Dearborn Board of Health, it appears from the remainder of her complaint that she in actuality called the Dearborn Health Department.
Plaintiff does not appear to argue on appeal that the court erred in granting summary disposition as to her second count alleging a violation of public policy. This count appears to be rather similar to plaintiff’s whistleblower claim. As plaintiff has not appealed the dismissal, we do not address the issue. | [
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Per Curiam.
Under the name of Raleigh Ezell Lewis, defendant, Larry Garvin, pled guilty to one count of breaking and entering a building, MCL 750.110; MSA 28.305, before Recorder’s Court Judge Donald Hobson on September 18, 1981. He escaped from custody on September 22, 1981, which was prior to his sentencing. Although incarcerated several times under, various aliases following the escape, defendant was not sentenced for the breaking and entering conviction until December 20, 1985. The sentence was for from six years, eight months to ten years, to be served consecutively with the term defendant was serving at that time. Defendant was given 1,324 days credit for time served on the offenses he was convicted of after the plea. Defendant appeals as of right. We affirm and remand for resentencing.
Defendant was back ip custody on December 13, 1981, charged with breaking and entering a business place. He was using a different name at the time of the offense. Defendant was convicted by a jury of entering without breaking and sentenced in Detroit Recorder’s Court to a term of from three to five years. Defendant escaped again on March 4, 1983. He was apprehended on June 18, 1983, and pled guilty to escape in Jackson Circuit Court. He was sentenced to a term of from nine months to five years. Defendant was paroled on November 4, 1984.
Defendant’s freedom was short lived. On January 16, 1985, he was once again in custody. Under the name of Larry Garvin, he was charged with assault with intent to do great bodily harm and possession of a firearm in the commission of a felony. Defendant was found guilty as charged in Detroit Recorder’s Court and sentenced to a term of from six years, eight months to ten years on December 6, 1985.
At this point, the state discovered that defendant was the same person who had escaped after the September, 1981, guilty plea. As a result, defendant was brought before Judge Hobson on December 20, 1985, and initially sentenced to a term of from four years to ten years. No reason for the sentence was stated, nor was it indicated whether the sentence was concurrent with or consecutive to the December 6, 1985, sentence. Then the following dialogue took place:
Court: Very well. That is the judgment of this court.
Defendant: Your Honor, can I speak?
Court: Yes?
Defendant: I thought my plea bargain was . . .
Court: Your plea bargain with whom? You have no plea bargain. That was back in 1981. That is all out the window, when you escaped.
Defendant: When you called me over here week before last, you told me ...
Court: (Interposing) I told you it would have to be consecutive because you were in an escape status. You have 1981, and you escaped on something else. Those plea bargains are out the window a long time ago, young man.
Do you understand that?
Defendant: No. I don’t.
Court: You do not understand?
Defendant: No.
Court: Well, you tell that to the appellate court when you appeal.
Defendant: I am going to try to.
Court: Make sure it is indicated consecutive.
Mr. Garvin, do you want to come back?
Defendant: Yes, I do.
Court: Make it six years, eight months to ten years, and make that consecutive to Judge O’Brien.
Now, you take that to the appellate court.
Defendant: I am going to do that, too.
Court: You have a constitutional right to.
That will close the record in this matter.
Defendant’s first argument is that he should have been allowed to withdraw his guilty plea when the trial court refused to sentence him in accordance with a plea agreement which included a sentence recommendation.
In the present case, after the court announced defendant’s sentence, defendant attempted to withdraw his plea stating that the sentence was longer than the plea agreement recommendation. The court stated that the agreement went "out the window” when defendant escaped and refused to allow defendant to withdraw his plea.
The leading case in this area is People v Killebrew, 416 Mich 189; 330 NW2d 834 (1982). In that case, the Supreme Court clearly stated that a defendant has the right "to withdraw his guilty plea if the judge rejects the proffered bargain or chooses not to follow the prosecutor’s sentence recommendation.” Id., pp 194-195. Therefore, at first glance, it appears that defendant is entitled to withdraw his plea. However, the right to withdraw a plea is not absolute. People v Wilkens, 139 Mich App 778, 785; 362 NW2d 862 (1984). See also People v Henderson, 144 Mich App 801; 377 NW2d 319 (1985).
The present case lies outside the parameters of Killebrew. Here, defendant implicitly waived his right to withdraw the guilty plea when he escaped. The sentence recommendation contemplated that no intervening factors would occur between the plea and the sentencing. Thus, had defendant pled guilty and remained for sentencing and the court failed to follow the recommended sentence, we would have no problem remanding this case to allow defendant the opportunity to withdraw the plea. Killebrew, supra. However, this is not the case. Instead, we have an intervening event caused by defendant; he escaped prior to sentencing. Defendant implicitly waived his right to withdraw his plea by escaping and also provided a justification for a longer sentence than originally recommended. Thus, the court did not abuse its discretion in denying defendant’s motion to withdraw his plea.
A case that supports this reasoning is People v Acosta, 143 Mich App 95; 371 NW2d 484 (1985), remanded 425 Mich 883; 392 NW2d 1 (1986). In that case, the defendant failed to appear to enter his guilty plea and was arrested eight months later. This Court declined to enforce the original plea agreement stating that the prosecution was not bound by the agreement until defendant entered and completed his plea. We noted:
Under this agreement, the prosecution was not bound until defendant entered and completed his plea. Although strict contract analogy may not be applicable to a plea agreement, People v Reagan, 395 Mich 306, 318; 235 NW2d 581 (1975), defen dant did not live up to his part of the bargain when he absconded and failed to enter his plea. We decline to accept defendant’s position that the bargain should be enforced irrespective of defendant’s bad faith in failing to comply with the bargain by failing to appear. Although there was no explicit time limit or condition as to when or under what circumstances defendant could enter a plea, the requirement that defendant enter and complete his plea contemplated defendant’s appearance to enter that plea. Defendant knew of the pending charges and the plea bargain, yet failed to appear on the date of the plea proceeding and was a fugitive for eight months. Under these circumstances, the court did not err in granting the prosecution’s motion to void the plea agreement. [Id., 99.]
The difference between Acosta and the present case is that here defendant’s failure to "live up to his part of the bargain” did not void the guilty plea. Rather, it waived his right to withdraw the plea because the sentence recommendation was not followed. However, the reasoning in Acosta supports the proposition that a defendant must abide by the contemplated terms of a plea agreement in order to seek enforcement of the agreement. Accordingly, we find that defendant has waived his right to withdraw his guilty plea in view of the fact that he escaped and committed subsequent crimes prior to sentencing.
Defendant’s second argument is that he has been deprived of his constitutional right of appeal and he should be allowed to withdraw his guilty plea because the transcript of the plea proceeding has been lost.
The most recent Michigan case involving a lost transcript similar to the present case is People v Iacopelli, 141 Mich App 566; 367 NW2d 837 (1985). In that case, the defendant failed to appear for sentencing following a jury conviction. Approximately nine years later he was arrested in a foreign jurisdiction, extradited and sentenced. The transcripts of his lower court record were lost. Defendant contended that the loss of those records required a peremptory reversal. This Court noted that there is a presumption of regularity of court proceedings. The Court then stated:
While we agree that a defendant has a constitutional right to appeal where, as here, he has compromised his position by his own misconduct, that right must be balanced. The state’s responsibility for lost transcripts should diminish as the defendant-caused delay lengthens. When the delay is as extreme as it is here, and only the right to appeal is alleged ..., we cannot reward defendant for being a fugitive for nine years. [Id., p 569.]
Iacopelli is applicable to the instant case. Defendant had been before the courts and had been incarcerated during a good portion of the time between his plea and sentencing. Thus, he had ample time and opportunity to secure production of the guilty plea transcripts. However, he made no attempt to do so until four years had elapsed. The state cannot be held primarily at fault, as defendant’s use of multiple aliases impeded its ability to identify defendant. Finally, defendant makes no specific allegation of error with respect to the guilty plea proceeding other than that there was a sentence recommendation as part of the agreement. It is admitted that the recommendation existed; however, as stated above, the lower court is not required to follow it. Therefore, defendant does not have a right to withdraw his guilty plea simply because the record of the guilty plea proceeding has been lost.
Defendant’s next argument is that his sentence should be vacated because he was denied his right to a speedy trial.
Sentencing is included within the speedy trial guarantee. People v McIntosh, 103 Mich App 11, 20; 302 NW2d 321 (1981).
In determining whether a defendant’s right to a speedy trial is violated a four-part balancing test is utilized. The four factors considered are: (1) length of delay; (2) reason for the delay; (3) defendant’s assertion of his right; and (4) prejudice to the defendant. People v Chism, 390 Mich 104, 111; 211 NW2d 193 (1973); Barker v Wingo, 407 US 514, 530; 92 S Ct 2182; 33 L Ed 2d 101 (1972).
The length of the delay was over four years. Absent an explanation, this is excessive. However, a lapse of time in and of itself does not cause a court to lose jurisdiction to sentence a defendant.
The reason for the delay provides some justification. Following defendant’s September 18, 1981, plea, he escaped. Defendant was incarcerated on other offenses several times between the escape and the December 20, 1985, sentencing. However, he was using at least ten different aliases. Therefore, correct identification was difficult. Additionally, he escaped from custody again during this time period. The delay was due to defendant’s actions and he cannot use it now to his advantage.
Furthermore, defendant did nothing to demand a more prompt sentencing. In fact, if anything, he hindered the process by escaping and using several aliases.
Finally, the delay caused no prejudice to defendant. Defendant was given credit for all the time he served between the 1981 plea and the 1985 sentence, on the subsequent offenses he was convicted of, even though he was not entitled to such credit. People v Prieskorn, 424 Mich 327, 340; 381 NW2d 646 (1985).
Balancing these four factors, we find that, while the delay in sentencing was exceedingly long, it was almost entirely due to defendant’s actions and he was not prejudiced thereby.
As to defendant’s other arguments concerning resentencing, the prosecution concedes that resentencing is mandated for failure to articulate the reasons for the sentence, People v Coles, 417 Mich 523; 339 NW2d 440 (1983), and due to the increase in the sentence following defendant’s objection, People v Day, 127 Mich App 426; 339 NW2d 204 (1983).
The only question we are left with then, is whether the resentencing should be before a different judge. Resentencing before another judge is required when: (1) the original judge would have substantial difficulty in putting out of his or her mind the previously expressed view determined to be erroneous; (2) reassignment would preserve the appearance of justice; and (3) reassignment would not entail waste or duplication out of proportion to any gain in preserving the appearance of fairness. People v Evans, 156 Mich App 68, 72; 401 NW2d 312 (1986).
Viewing the present case in light of these considerations, we conclude that resentencing should be before a different judge. It would be unreasonable to expect the original judge to be able to put out of his mind his previously expressed views, Furthermore; the advancement of the interests pf preserving the appearance of justice and fairness outweigh considerations of waste and duplication. For these reasons, the matter is remanded to another judge for resentencing.
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Carr, J.
Plaintiffs in this proceeding seek to compel the setting aside of an order transferring an ejectment case to the equity side of the court. The defendants in said case, which was instituted in August, 1957, were George Begg and Cora V. Begg. The declaration filed averred, in substance, that the plaintiffs were the owners of certain described premises in Newaygo county, and that they were in possession thereof from June 14, 1951, to June 4, 1957, when defendants entered the premises and unlawfully withheld possession from plaintiffs. The plaintiffs asked judgment for possession of the land described and also damages in the sum of $5,000. Attached to the pleading was a copy of a land contract naming plaintiffs as vendees, specifying payments in the sum of $20 per month, including interest, until the total purchase price of $2,000 had been, paid with interest at 6% per annum, and granting to the purchasers the right of possession so long as they were not in default.
Defendants Begg filed answer to the declaration denying that plaintiffs were the owners in fee of the land and asserting that they had merely an equitable title as contract vendees. The answer admitted that defendants claimed the rig’ht to possession of a portion of the premises, denying, however, that they had entered upon the entire parcel as described in the declaration. With the answer was filed a motion to transfer the action to the equity side of the court, asserting on their part a right to possession of a described portion of the'land involved and averring that on September 15, 1956, they had contracted to purchase such portion from plaintiffs for the sum of $1,750, the memorandum of agreement being signed by defendants and by plaintiff Martin Bowerman. It was further claimed that a down payment in the sum of $500 was made by check payable to both plaintiffs, which was accepted and indorsed. The motion was predicated also on the general allegation that defendants had equitable defenses which they should be allowed to raise, and that they could not do so in the ejectment action.
Plaintiffs in their reply to defendants’ answer denied that they had contracted to sell to Mr. and Mrs. Begg the land in dispute or any part thereof. The circuit judge came to the conclusion that the motion should be granted and entered an order reading, in part, as follows:
“It is ordered that the within cause be and is hereby transferred to the equity side of this court, provided the defendants file a bill of complaint within 10 days setting forth an equitable cause of action, in accordance with the allegations in the aforesaid motion, and with the understanding that plaintiffs may have 15 days to answer said bill of complaint and if, after a hearing on the merits, it appears that there exists no just cause for the application of the principles of equity, the cause may be retransferred to the law side of the court for suitable action, and with the prosecution of the ejectment suit heretofore started by the plaintiffs.
“Costs shall await the final disposition of the cause.”
The proceeding now before the Court has resulted, plaintiffs claiming that the circuit judge was in error in transferring the case and that they will be deprived of certain rights granted by law unless permitted to prosecute the action of ejectment as instituted by them. On behalf of defendants Begg it is insisted that they have certain rights ánd defenses that can properly be presented only in a suit in equity. In accordance with the order, above quoted in part, they filed their bill of complaint seeking therein specific performance of their alleged agreement with plaintiffs as evidenced by the memorandum above mentioned. The writing described the subject matter of the agreement as “land located in Ashland township, Newaygo county, Michigan, located in the southwest corner of Government Lot One (1) fronting on Muskegon river for approximately 350 east and west and extending north to the county road commission surveyed line for gravel rights.” The consideration specified was $1,750, with $500 down payment, a like amount when the “papers” were ready to be executed, and the balance within 30 days from the date of the memorandum.
As before noted, the writing was signed by defendants Begg and by Martin Bowerman. It contained no provision granting to said defendants any right of possession of the premises in question. The rule is well settled in this State that an executory agreement for the sale of land transfers no right of possession to the vendee unless the writing so provides. Spaulding v. Wyckoff, 320 Mich 329, 335, and prior decisions there cited. Whether Mrs. Bowerman can be held estopped to deny that she was a party to the agreement is a question not before the Court at this time. In passing’, however, we call attention to the fact that a somewhat analogous question was presented in Shipman v. Campbell, 79 Mich 82.
From the record before us it clearly appears that plaintiffs were at the time of the institution of their ejectment case entitled to possession by virtue of the' land contract in which they were vendees. They were entitled to assert such right against anyone dispossessing them, and the remedy by way of ejectment was available to them. Olin v. Henderson, 120 Mich 149, 155; Kuite v. Lage, 152 Mich 638 (125 Am St Rep 421). It .also appears that the defendants in the ejectment action did not have at the time the case was brought against them any right to the possession of the property in question, or to any part of it. They seek to acquire such right by invoking the aid of equity in a suit for specific performance of the memorandum of agreement above considered. Why they did not pursue such remedy rather than entering into possession of the premises does not appear. The practical situation now is that they seek to prevent plaintiffs from proceeding with their action in ejectment until-they are in position, if they can attain that result, to interpose by way of defense a right of possession in themselves. The fact that the vendors in the land contract under which plaintiffs were entitled to possession had given defendants Begg a deed of the premises, subject to plaintiff’s contract, does not alter the situation.
This brings us to the question whether, in view of the'factual situation disclosed by the record here,the order of transfer of the ejectment case should have been made. The statute authorizing such ac tion in- certain cases (CL 1948, § 611.2 [Stat Ann § 27.652]) reads as follows:
“If at any time it appear that a suit commenced in equity should have been brought as' an action on the law side of the court, or if it appear that an action commenced on the law side of the court should have been brought in equity, it shall be forthwith transferred to the proper side, and be there proceeded with, with only such alteration in the pleadings as shall be essential.”
The interpretation and application of the statute were considered in Lake Superior Brass Foundry Co. v. Houghton Circuit Judge, 209 Mich 380. It was there held that an order transferring a law action to the equity side of the court, based on the claim of the defendant that the note sued on was merely one item in partnership accounts, was improperly entered and should be set aside. It was pointed out also in the opinion that the making of such an order is not a discretionary matter. A like conclusion was expressed in Christian v. Porter, 340 Mich 300, 303, citing Commissioner of Insurance v. Lapeer Circuit Judge, 302 Mich 614.
The conclusion follows that in any case involving the question whether an action, or suit, should be transferred, the answer depends on whether the situation presented falls within the purview of the statute. In other words, such a transfer may not be made, as counsel implies by his argument, as a matter of convenience or to expedite the work of the court. The object of the statute was to obviate the necessity of dismissing a meritorious cause of action because not instituted on the proper side of the court.
Plaintiffs in the instant case, claiming that they had been unlawfully deprived of the possession of their premises, a possession to which they were entitled as vendees under their land contract, had the right to bring an action of ejectment. Defendants were not in position to ask that the case be transferred to the equity side of the court in order to permit them to acquire, if possible, a right of possession in themselves. Any right so obtained would obviously not be retroactive nor would it have any tendency to establish that the conduct of defendants Begg in dispossessing plaintiffs, was either equitable or legal. The fact that defendants Begg may at some future time establish a right to possession cannot bar plaintiffs from protecting the right that they now have. Also involved in the case is the question of damages based on the alleged improper conduct of defendants Begg. These are issues that may properly be tried in the ejectment case.
The order of transfer should be set aside. If necessary, the writ will issue.
Dbthmers, C. J., and Kelly, Smith, Black, Edwards, Voelker, and Kavanagh, JJ., concurred. | [
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Carr, J.
Plaintiff brought this action in the circuit court of Wayne county to recover damages for injuries claimed to have resulted from the negligence of the defendant. The declaration in the case, filed May 27,1957, alleged that plaintiff was a resident of Jackson county, that the defendant corporation was a common carrier, and that on April 20, 1956, it was the owner and proprietor of a certain railroad extending from the city of Pontiac to the city of Jackson. It was further set forth that on said date plaintiff was operating a truck on State trunk-line highway M-36, in Livingston county, which highway crossed the railroad at the village of Gregory, in said county.
While attempting to drive over the railroad track plaintiff’s vehicle was struck hy a locomotive operated by defendant’s employees, resulting in serious physical injuries to plaintiff. The pleading averred that said employees were negligent in the operation of defendant’s train, and that defendant was also negligent in failing to provide proper safeguards at the crossing for the protection of traffic on the highway. A second count in the declaration was predicated on the theory of subsequent negligence.
Defendant entered a special appearance in the case and filed a motion to dismiss on the ground that under the provisions of the statute (CLS 1956, § 610.1 [Stat Ann 1957 Cum Supp § 27.641]), relating to the venue of actions and suits, plaintiff’s action should have been brought in the circuit court of Jackson county, and that the Wayne county court did not have jurisdiction thereof. Objections to said motion were submitted on behalf of plaintiff. Following a hearing an order was entered dismissing the cause of action, without costs and without prejudice to plaintiff’s right to sue for his damages in Jackson county. From such order of dismissal, plaintiff has appealed.
Insofar as material to this case the section of the statute above cited provides, in subdivision 2 thereof, that actions founded upon wrongs and contracts, “except as herein otherwise provided,” shall be com menced and tried in the county where one of the parties resides at the time of commencement of action, and subdivision 3, which relates specifically to actions against transportation lines reads, in part, as follows:
“Suits may be commenced against any street railway or railroad company in any county where the principal office of such company within the State may be situated, or in any county traversed by a line of railroad, owned or operated by such company, or in any county in which such company shall be the owner or lessee of a right of way for a line of road: Provided, That if such line of road traverses the county of the plaintiff’s residence, suit shall be brought in such county.”
Like provision is made with reference to the venue of actions against individuals, motor bus, and transportation companies operating lines for the transportation of passengers or freight, subject to the proviso that if the route traverses the county of plaintiff’s residence the action must be brought in such county.
It is the claim of the defendant that the proviso as set forth in the language of the statute, above quoted, is mandatory, that inasmuch as plaintiff is admittedly a resident of Jackson county, and that defendant’s line of railroad operates within that county, the proviso is applicable in the instant case and precludes the maintenance of the action in Wayne county. On behalf of plaintiff reliance is placed on the general provision of the statute, above referred to, requiring, subject to exceptions contained in the act, that actions be commenced and prosecuted in the county of residence of one of the parties at the time of commencement of action. It is also claimed that the proviso relating to actions against street railway companies and railroad companies should not be con strued as precluding plaintiff from bringing his action for damages in Wayne county in view of the fact, as it is claimed, that defendant’s principal office is located therein. It is suggested that the residence of the corporation should be determined accordingly, and that under the statute it is subject to an action for damages in the county of its domicile.
Counsel for plaintiff further argue that the word “traverse” as used in the proviso should be construed as implying that the railroad of a defendant must cross the county of plaintiff’s residence in order to mate said proviso applicable,' that such is not the situation with respect to defendant’s railroad here involved, the western terminal thereof being within said county, and that, in consequence, the declared restriction as to venue does not control. The contention is also advanced that the proviso limits merely the clause immediately preceding it, and hence is confined to cases in which the railroad company owns or leases “a right of way for a line of road.”
The determination of the issues presented in the case rests on the interpretation of the pertinent statutory provisions, and particularly on the scope of the proviso. The language of the proviso is not ambiguous. On the contrary, it is clear and specific. It is a fair inference that the legislature deemed it expedient to require that in certain cases the venue of an action for damages against a railroad company should be limited to the county of plaintiff’s residence. As suggested in Amyot v. Wayne Circuit Judge, 221 Mich 256, the venue provisions of the statute recognized the theory that in such cases the carrier should be deemed to have a corporate residence in each county within which it operates a railroad. The proviso, in substance, declares that when such residence is within the same county as that of the plaintiff the action shall be brought and tried therein. In other words, the underlying thought seems to be that if both parties can be said to be residents of the same county the venue is fixed accordingly.
This brings us to a consideration of plaintiff’s argument that the word “traverse” as used in the proviso must be construed as applying only to instances in which the railroad passes entirely through and across the county of plaintiff’s residence. We think that such an interpretation is not consistent with the obvious legislative intent. In Pollock v. Detroit United Railway, 168 Mich 581, the action was brought in Oakland county for damages suffered by plaintiff as a result of a collision between electric cars operated by defendant within said county. Plaintiff was a resident of Missaukee county, and the defendant’s principal place of business was in the county of Wayne. It was contended by defendant that the circuit court of Oakland county did not have jurisdiction. It was held that inasmuch as its lines of road extended into said county the defendant might properly be regarded as a resident thereof. The holding with reference to the matter was summarized as follows:
“For purposes of jurisdiction the corporation is deemed a resident of any county where the road is operated or corporate powers exercised, and of each county, where it has an office, agency, or agent for service of process.” (Syllabus 2.)
It will be noted that, under the venue statute then in force, residence within the county of Oakland for purposes of jurisdiction of the case rested on the basis of defendant’s operations therein. So in the case at bar defendant’s residence in Jackson county for purposes of action against it by a resident of said county to recover damages rests on the fact that it operates its road within the county. The matter of residence is not determined by the extent of such operation. The fact that the western terminal of the road is within the county is not material. Having in mind the apparent theory on which the proviso in question here rests, we are unable to agree with the contention of counsel for the plaintiff that the proviso is limited in its application to instances where the road passes entirely through the county of plaintiff’s residence. The word “traverse” was clearly intended to refer to the operation of the carrier’s railroad within the county of plaintiff’s residence, and not as necessarily requiring the complete crossing of such county.
Having in mind the purpose of the statutory provisions involved in the instant case, it is apparent that the proviso was adopted to modify and limit preceding provisions of the enactment. Such is ordinarily the purpose of a proviso, and its application must be determined accordingly. 82 CJS, Statutes, § 381, p 888; United States v. Morrow, 266 US 531 (45 S Ct 173, 69 L ed 425); Erdelyi v. Erdelyi, 279 Mich 282; People v. Wolfe, 338 Mich 525. In the instant case it applies to a situation existing when both parties to the action are residents of the same county within the purview of statutory provisions relating to venue. In practical effect it makes an exception to the preceding clauses of subdivision 3 of the section of the statute above cited, and, likewise, to the general provision of subdivision 2, which expressly recognizes that it is subject to exceptions provided for by other provisions of the act. In Pere Marquette R. Co. v. Slutz, 268 Mich 388, the plaintiff corporation brought suit to enjoin defendant Slutz from prosecuting in Illinois an action for damages for personal injuries. The accident occurred in Berrien county and Slutz was a resident of Van Burén county, through which defendant’s road passed. It was held that plaintiff was entitled to injunctive relief, and that the statute required the action to be brought in the county where defendant Slutz resided.
Limiting the venue of plaintiff’s action to the county of his residence does not deprive him of any right or privilege granted by either the Constitution of the State or by the Constitution of the United States. It is within the power of the legislature to prescribe where actions may be brought and to impose reasonable limitations with reference thereto. The trial court was not in error in granting the motion to dismiss, and the order entered is affirmed.
Dbthmers, C. J., and Kelly, Smith, Black, Edwards, Voelker, and Kavanagh, JJ., concurred. | [
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Dethmers, C. J.
On July 23, 1952, plaintiff, sole stockholder of Midway Transit Company, a trucking concern, agreed to sell its interstate commerce permits to defendant, a common carrier, and defendant paid plaintiff $25,000 and gave him a 10-year contract of employment as regional manager at a salary of $6,500 per annum, to commence upon approval of the sale and transfer of the permits by the interstate commerce commission and consummation of the sale, which occurred on July 7, 1953. In the interim, defendant operated the Midway business under a lease and temporary permits, employing plaintiff in its business operation. On July 6, 1954, after the contract of employment had been in effect for 1 year, defendant terminated it, discharged plaintiff and refused to pay him further. There was then due him for back wages $368.27 and the unpaid balance of the contract, which would become due to him during its remaining 9-year period, totalled $58,500. At time of trial, June 22, 1956, two of those 9 years had passed. Plaintiff, therefore, claimed judgment for said sum of $368.27 in back wages, plus $13,000 for the 2 years between his discharge and date of trial, and the then present worth of the remaining $45,500 which would become due him during the nest 7 years, which he figured to be $36,400, for a sum total of $49,768.27. The jury returned a verdict for plaintiff for $9,400 less, or $40,368.27. Defendant appeals.
Defendant claimed the right to terminate the contract and to discharge plaintiff because of his alleged prior breach of the contract’s terms. Its contention is that under the contract it was plaintiff’s duty to (1) solicit business for defendant, (2) effect timely deliveries of inbound freight for .defendant, (3) make daily reports and remittances to defendant, (4) coordinate defendant’s terminals and supervise their employees in his region, (5) take instructions from defendant’s home office, and (6) exert his best ■efforts to continue, develop and maintain for defendant the business previously enjoyed by Midway; that plaintiff failed in the performance of each of these duties, thus breaching the contract, and that he engaged in business in competition with defendant, •causing it to lose the business previously enjoyed by Midway and occasioning defendant great financial losses. The only duty of plaintiff expressly stated in the contract was as follows:
“4. Ogden agrees to devote such time as may be necessary to properly perform the duties incident to such employment (as regional manager), and to exert his best efforts to continue, develop and maintain for Alger the business previously enjoyed by Midway Transit Company, Inc.”
No other duties were alleged in defendant’s answer and notice of affirmative defense.
Plaintiff denies material breaches of the obligations assumed by him under the contract, says that ■defendant never complained to him of such breaches before discharging him, that defendant, from the ■very outset, sent into his region other employees to perform and be in charge of activities for which it mow claims plaintiff was responsible under the contract, that most, if not all, of defendant’s mentioned loss of business occurred while it operated under the temporary permits and before the term of plaintiff’s contract of employment had commenced, and that such loss was the result of the business having been taken away by defendant’s district sales manager when the latter was discharged by defendant; further, that defendant knew at the time of negotiations between them that plaintiff owned many pieces of trucking equipment which he was in the business of leasing to others for trucking operations, and that anything which he thereafter did in that respect having a competitive effect on defendant’s business was contemplated by the parties when they contracted with each other.
Defendant says that plaintiff has not specifically denied all of defendant’s claims with respect to plaintiff’s duties under the contract and breaches thereof. While the testimony and proofs of the opposing parties may not have clashed head-on as to every detail of the parties’ respective claims and contentions, we are satisfied from an examination of the pleadings, testimony and entire record that plaintiff did put in issue defendant’s claims of plaintiff’s breach of obligations assumed under the contract. There was such conflict of testimony on the material issues that defendant was not entitled to a directed verdict as-claimed. The determination of those issues by the jury we do not consider to have been against the great weight of the evidence.
Defendant claims error in the court’s reception of' plaintiff’s testimony that defendant’s secretary on 2. occasions offered to pay plaintiff sizeable sums for the surrender of his contract of employment, citing' cases which hold evidence of offers of compromise to be inadmissible as admissions of liability. (Sanderson v. Barkman, 272 Mich 179; Olshove v. Pere Marquette R. Co., 263 Mich 579; Crane v. Ross, 168 Mich 623, and cases therein cited.) Such holdings are in furtherance of the policy of the law to favor peaceable settlements of controversies. In the instant case, both parties say that at the time the offers were alleged to have been made no controversy had as yet arisen between them. Receipt of the testimony in question did not, therefor, run afoul of the mentioned holdings inasmuch as it did not relate to an offer of compromise settlement of a disputed liability nor an attempt to make peace in a controversy. The offer, if made, did constitute an admission that at the time it was made, prior to the controversy, defendant owed a contract obligation to plaintiff. As such, it was admissible in a suit brought to enforce it.
Defendant assigns error on the court’s failure to strike plaintiff’s testimony that the sale price of Midway’s business to defendant was $90,000, of which .$25,000 was to be paid for permits and $65,000 in a working permit, or. some permit of some kind to spread it over a 10-year period. Defendant fails to show the respect in which it constituted prejudicial error to allow the jury to know that both the $25,000 cash payment and the $65,000 employment contract were part of the transaction resulting in a sale and transfer of Midway’s permits and business to defendant and we discern no such error therein, particularly in view of the fact that the question of defendant’s liability to plaintiff on the employment contract, on which alone the suit was brought, went to the jury on testimony and under instructions which required determination thereof to depend upon the jury’s findings with respect to plaintiff’s obligations under the contract and his performance thereof, with nothing to allow the jury to conclude that plaintiff might recover without performance and after breach of his contract obligations.
Defendant claims the verdict excessive. As indicated, it was for $9,400 less than the amount claimed by plaintiff as due on the contract after deduction for present worth of future damages. Defendant stresses in this connection plaintiff’s duty to mitigate damages and defendant’s right to credit for wages which plaintiff might reasonably be expected to earn in the future in other employment, complaining that this was disregarded by the jury. This claim in mitigation of damages was not pleaded by defendant nor did defendant support it by any offer of proofs. The burden of proof in this regard rested upon defendant. Edgecomb v. Traverse City School District,, 341 Mich 106. Under the circumstances, we cannot hold the verdict excessive.
Affirmed, with costs to plaintiff.
Carr, Kelly, Smith, Black, Edwards, Voblker, and Kavanagh, JJ., concurred. | [
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Kavanagh, J.
Plaintiff, a general contractor, filed his bill to foreclose a claimed lien for materials and labor .furnished defendant Keller-Koch, Inc., original lessee of the defendant Nu Markets, Inc. Defendant, Massachusetts Mutual Life Insurance. Company holds a prior recorded mortgage. Defendant Jess McNeal, Inc., is'the present lessee.
Plaintiff entered into a contract with the lessee,. Keller-Koch, Inc., to alter and improve a certain warehouse building owned by defendant Nu Markets, Inc., to adapt it to the use of an automobile sales and service agency. The building had been formerly occupied by Wrigley Stores.
The contract called for the removal of several doors and partitions and installation of larger doorways. Construction was to begin January 30, 1956, and was to be completed March 16th of the same year. In accordance with section 3 of the lease between Keller-Koch, Inc., and Nu Markets, Inc., dated December 17, 1955, all plans, specifications, and designs were prepared by a competent, regisr tered architect and submitted to the owner for apr proval before any alterations were made. Keller-Koch, Inc., paid the cost of improvements with the exception of $5,261.70. Plaintiff’s claim was -reduced to judgment in the law case of Sewell v. Keller-Koch, Inc., which judgment was taken September 14, 1956. Efforts to collect that judgment failed.
The last of the materials and labor were furnished on March 16, 1956, to defendant Keller-Koch, Inc. On April 6, 1956, a verified statement of the number and names of all subcontractors, materialmen and laborers, together with the amount due each and statement of account and lien, both verified by affidavit, were served personally upon the lessee and filed in the office of the Oakland county register of deeds. The statement of account. and lien, when filed with the Oakland county register of- deeds, specifically named only the lessee as the . person against whom the lien was then being claimed.: Appellee Nu Markets, Inc., was not named in the claim of lien. However, on the back of the form, below the sworn claim of lien, the owner’s name and address were given. Subsequently, on April 13, 1956, proof of service was filed in the ■ office of the register of deeds. The owner,, defendant Nu Markets, Inc., was served by registered mail on April 16, 1956, in the city of Detroit, "Wayne county, Michigan. Defendant Keller-Koch, Inc., vacated the premises in the latter part of March, 1956.
On September 18, 1856, Nu Markets, Inc., entered into a supplemental agreement with Keller-Koch, Inc., which did not terminate the lease but turned over possession to the lessor for the purpose of re-letting the premises in order to mitigate damages and apply any rentals received against the obligation of the existing lease. Defendant Nu Markets, Inc., then subleased to defendant Jess McNeal, Inc., for a shorter term than the original lease and at a reduction in rental of $300 per month.
On April 5, 1957, this action was brought, and named as defendants all persons and corporations exhibiting any interest in said premises. It was stipulated that any lien established by plaintiff is subject to prior rights of the Massachusetts Mutual Life Insurance. Company, which holds a mortgage-from the owner.
On May 14, 1957, defendant Nu Markets, Inc.r filed a sworn answer and a motion to dismiss. The motion to dismiss was noticed for Monday, May 20, 1957. On May 29, 1957, answer to motion to dismiss was filed by plaintiff. Judge Holland ruled on the-motion to dismiss on June 11, 1957, and on the same-day he entered an order denying the motion to dismiss. On June 27, 1957, a motion for rehearing of order denying motion' to dismiss and notice of hearing was filed. On July 30, 1957, a stipulation of facts was entered on the record and the case was submitted on briefs. On November 18, 1957, a decree-dismissing the bill of complaint was entered. Plaintiff" appeals to this Court.
The pertinent provisions of the 10-year lease, at a rental of $2,100 per month, having to do with the-alterations in the building were as follows:
“The tenant shall have the right to make all alterations, additions, and improvements that it deems' necessary for the conduct of its business at its own cost and expense, provided any architectural changes shall be designed by a competent registered architect and shall be in conformity with the general colonial architecture of the existing building. Said plans and specifications shall be approved by the landlord in writing. Landlord will not unreasonably withhold his approval of the plans and specifications provided that the above intent is carried out.
‘“It is understood and agreed that in the event that this lease shall be terminated because of default of tenant, tenant shall, at the option of landlord, restore the building to its original form, at its own cost and expense, but that otherwise there shall be no such obligation of restoration.”
Plaintiff in the lower court, as it does here, claimed the right to impress a lien against the premises of the defendant Nu Markets, Inc., for the alterations and improvements ordered and procured by the lessee. The claim is premised upon the theory that the property of the lessor is subject to a mechanic’s lien for the improvements contracted by the lessee in that the lessor, as a part of the consideration for the lease, made the lessee his agent and conferred upon him the requisite authority to make the improvements which were to become a part of the real estate and revert to the lessor.
Defendant Nu Markets, Inc., denies any such agency, and claims that it merely consented to and permitted alterations and improvements, and claims the lease requirement- for submitting plans and specifications for its approval was solely to insure preservation of the architectural design of the building. Defendant also contends that plaintiff’s claim of lien as to Nu Markets, Inc., is further barred because of its failure to comply with the statutory requirements with reference to service of a nonresident owner, for failure to file any proof of service as to the owner with the register of deeds either before or after suit.
We answer first the question as to whether plaintiff in this action can impress a lien against the premises of defendant-owner, lessor, for the alterations and improvements ordered and procured by the lessee.
The language set out in the lease with reference to alterations and improvements of the premises indicates that the cost is to be at the expense of the tenant. The request for approval of the plans by the lessor so as to make sure lessee does not alter the architectural design of the building is reasonable and understanding in this regard. Note should be made of the provision whereby the landlord could not withhold approval of reasonable plans and specifications' within the intent of use. The landlord was not required unconditionally to accept the altered building at the termination of the lease. The tenant contracted at the option of the landlord to restore the building to its original form at its own cost and expense.
It is further worthy of note that the original statement of lien did not claim a lien against defendant Nu Markets, Inc., and that the law action, based upon contract, is solely against Keller-Koch, Inc.
The Michigan mechanics’ lien statute is predicated upon contract, express or implied, between the claimant and the person to be charged for the improvements claimed. The contract may be express or implied, written or unwritten, and with the owner, part owner, or lessee, but the statute grants the lien only to the extent of the interest of the owner, part owner, or lessee with whom the claimant has contracted (CLS 1956, § 570.1 [Stat Ann 1957 Cum Supp § 26.281]). These rules have been recognized and applied in the Michigan decisions. Wagar v. Briscoe, 38 Mich 587; Peninsular General Electric Co. v. Norris, 100 Mich 496; Restrick Lumber Co. v. Wyrembolski, 164 Mich 71; Merrill v. Brant, 175 Mich 182; John Wallace Sons Co. v. Wilkinson, 181 Mich 693; Johnson v. Russell, 243 Mich 64; Winkworth Fuel & Supply Co. v. Bloomsbury Corp., 266 Mich 298.
All of the Michigan cases have clearly distinguished between those situations where the landlord merely consents to or permits alterations or improvements, and those where the landlord requires the tenant either to erect a valuable structure or make extensive and valuable additions or improvements as a part of the consideration for the lease. Where such construction or improvement is made obligatory, the lessee has been deemed the agent of the lessor for the purpose of effecting the improvements which the lessor has insisted upon having, and the contract has been deemed in essence to be the lessor’s contract, with the lessee acting as lessor’s agent in making it.
In the instant case it is obvious that the plaintiff had no oral or written contract with defendant-Nu Markets, Inc., and none is claimed. The statement and claim of lien indicates its arrangement was with Keller-Koch, Inc. The law cáse of plaintiff herein v. Keller-Koch, Inc., significantly is against Keller-Koch, Inc., only. Nu Markets, Inc., is not joined as a defendant. If it was contended that Keller-Koch, Inc., was only the agent of Nu Markets, Inc., then the action would certainly have been brought against Nu Markets, Inc., rather than the agent. All arrangements with reference to the furnishing of materials were carried on with Keller-Koch, Inc. The lessor was not a party to these arrangements, did not order them, took no part in the supervision of the labor, nor directed its program, and at no time did lessor discuss the cost of the work, and no reductions were allowed the lessee on the rental of the premises for the improvement. The language of the lease merely-permitted the alterations and improvements if lessee desired to malee them and prohibited alterations which changed the architectural design of the building. Under these circumstances certainly no implied contract existed, and, therefore, no liability was established against Nu Markets, Inc.
Plaintiff relies upon Hart v. Reid, 243 Mich 175. In that case the contract of lease between the owners and lessee which provided for lessee constructing and erecting a building to cost not less than $500,000 was more than a lease. The contract there contemplated the construction and erection of a building, and, impliedly, the lessee was acting as the agent of the owners in having the building constructed. Under these circumstances the Court correctly upheld the claimed liens.
Plaintiff further relies on Merithew v. Bennett, 313 Mich 189 (163 ALR 988). In that ease this Court said (pp 192, 193):
“We believe, however, that the Hart v. Reid Case, supra, is controlling, in view of the fact that in that case there was not merely a contribution toward the improvements but, as in the instant case, the entire cost was to be paid from the rentals. The improvements consisted not only of a new furnace but a 25-foot addition to the old building for the dance floor. The building undoubtedly was made far more valuable. In Ward v. Nolde, 259 Mo 285, 301 (168 SW 596), the court said:
“ ‘The rule is very generally recognized and established that where the landlord binds the tenant to make substantial improvements upon the property he thereby constitutes the latter his agent within the meaning of the mechanic’s lien law, and his property is subject to the lien for labor performed and material furnished in making such improvements under the contract with the tenant.’ ”
On page 194 the Court continued, saying:
“It may be properly claimed that all these cases differ somewhat in the facts hut the general rule remains the same. In the instant case, there was not merely a contribution or donation toward making the improvements, there was an agreement that the owner was to pay for the entire improvements, by the tenant’s applying the rentals toward such payment. Under the facts in the case, we hold that the tenant was the agent for the owner to enter into the contract, and the owner is liable.”
Each of these cases are distinguishable on the fact situation from the instant case. The circuit court properly dismissed plaintiff’s bill of complaint. Having disposed of the matter on the merits, we will not discuss the other claims with reference to the failure to meet the statutory requirements.
The decree of the lower court dismissing the bill of complaint is affirmed. Costs in favor of defendant Nu Markets, Inc.
Dethmers, C. J., and Carr, Kelly, Smith, Black, Edwards, and Voelker, JJ., concurred.' | [
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'Kelly, J.
(concurring). Plaintiff’s husband’s death (January 12, 1952) was caused by a truck owned by defendant L. E. Myers Company and driven by its employee, Kenneth Gosso. Employee Gosso’s negligence is beyond question. Plaintiff’s husband was not guilty of contributory negligence in any way.
The circuit court for the county of Mason, at the close of all proofs, granted defendant L.- E. Myers Company’s motion for a directed verdict, stating* that plaintiff had failed to sustain the burden of proof that employee Gosso was operating the truck with the permission or consent of defendant Myers Company, or with its knowledge, express or implied. The only question presented in this appeal is whether the court erred in granting defendant’s motion for directed verdict.
Appellant’s brief and appendix names both Gosso and L. E. Myers Company as defendants and appellees. Myers’ brief lists Gosso merely as defendant and Myers Company as defendant and appellee. Gosso was not represented by himself or by Myers Company at the trial. The appeal is as to both defendants and Gosso has never been dismissed as a party hereto.
Defendant L. E. Myers Company is a Delaware corporation with its principal offices in the city of Chicago. It constructs and repairs power lines in many States and maintains a division office in the ■city of Jackson.
For a period of time previous to the day of the accident, an electrical construction crew consisting ■of Gosso and 2 other employees had worked in the Ludington area under the direction of defendant’s foreman, James Robert Young. This crew’s work week started on Monday morning at 8 o’clock and finished on Friday night around 4 or 4:30 o’clock.
The collision between defendant’s truck, driven by Gosso, and plaintiff’s decedent’s car occurred on a bridge on US-31 south of Ludington, on a Saturday afternoon about 4 p. m. On the Friday night preceding the collision, Gosso was instructed by foreman Young to drive the truck the next day (Saturday) to a garage for welding repairs. Gosso followed instructions on Saturday morning and drove to the designated garage, but was there informed that no one was available on that Saturday to do the welding work. Gosso then started out to visit friends, driving the truck. He visited at least 3 bars, 1 in Ludington and 2 in Pentwater, where he consumed either beer or liquor. He was driving on the wrong side of the highway as he struck plaintiff’s decedent’s car.
In directing verdict for defendant, the court stated that there was not a scintilla of evidence that Gosso had permission from his foreman Young, or from defendant company, to use the truck as he was using it for hours preceding the fatal accident and at the time of the accident.
The record sustains the trial court’s opinion in this regard, unless appellant’s contention should be sustained — namely, that previous to the day of the collision Gosso’s foreman (Young) had allowed Go.sso to take the truck for his personal use and needs and that such permission made defendant company liable under the statute.
Gosso was called for cross-examination by plaintiff and testified that for a period of time before the accident he, with foreman Young’s consent and knowledge, drove the truck back and forth to his home; that his foreman, Young, told him he could use the truck and that he did use the truck on “quite a few occasions” for personal purposes, such as picking up his laundry and dry cleaning; that he was with foreman Young when the truck was used (on company time) for putting up an antenna for a friend who ran a bar who was “always good for a friendly beer;” that he used the truck, with Young’s knowledge, to pick up his daughters at the railroad station, and that at no time did he ever read any rules to the effect that employees were prohibited from using the truck for personal purposes, nor did Mr. Young ever at any time advise him that he could not use the truck for such purposes. Gosso was shown an employment card, which he had signed, containing a clause prohibiting the use of the truck for personal purposes and he admitted his signature but stated he did not read the provisions of the card before signing.
Gosso testified in regard to his actions on the day of the accident as follows: He said that he arose about 9:45 a. m. on that day and picked up the truck at the Ford garage at about 10:45 that morning. From there he went to Motyka’s garage (on US-10 south of Ludington) to have the welding done and,, finding no one there to do the work, he left. It was then approximately 11 a. m. He went downtown in Ludington, picked up his laundry and dry cleaning, and went to his room. He then went to a tavern in Ludington, using the truck, after which he proceeded to Pentwater, a distance of 11 or 12 miles from Ludington, arriving in Pentwater about 2 p. m. After visiting 2 bars there he left Pentwater at about 3:30 or 3:45 p. m., and drove toward Ludington on US-31. The accident occurred at approximately 4 ■o’clock in the afternoon on US-31 a few miles south ■of the city of Ludington.
Defendant called witnesses to prove that the company restricted the use of motor vehicles by employees to company purposes. Mr. Forester, vice-president and treasurer of defendant company, •stated he was responsible for preparing the employment cards and that “the company policy is that no •employee is permitted to use, and that includes officers and directors of the corporation, any vehicle for personal use and business;” that said rule had been in existence in excess of 25 years; that said rule is promulgated to agents and officers periodically 'by letters; that the foremen have no authority to allow any employee to use company equipment for ■other than company purposes, but did admit on -cross-examination that every once in a while the company obtained information that its orders were not followed.
V. E. McEoy, who was the superintendent of the western half of the lower peninsula, testified that a Mr. Ludlow was general foreman of the Ludington job, and that Ludlow understood that “the use •of company equipment was always prohibited for personal use.” McEoy was asked the following questions in regard to foreman Young:
“Q. And do you know that Mr. Young was informed?
“A. Mr. Young was informed.
“Q. Prior to January, 1952?
“A. Yes.
“Q. You testified under oath that Mr. Young had knowledge of the rule?
“A. I am sure he had.”
Ludlow testified that he visited the job once or twice a week and that he would talk to the foreman of the district he visited, informing the foreman of company policies, safety rules and, also, giving assistance and laying out work. He stated in regard to Young: “I didn’t have today out Robert Young’s work. He was one of our best foreman.”
Robert Young died before the trial of this case and his deposition was not taken previous to his death.
Appellant calls attention to section 401 of the motor vehicle code (PA 1949, No 300) being CLS 1956, § 257.401 (Stat Ann 1952 Rev § 9.2101), which provides:
“The owner of a motor vehicle shall be liable for any injury occasioned by the negligent operation of such motor vehicle whether such negligence consists of a violation of the provisions of the statutes of the State or in the failure to observe such ordinary care in such operation as the rules of the common law requires. The owner shall not be liable, however, unless said motor vehicle is being driven with his or her express or implied consent or knowledge.”'
The court in directing its verdict stated that Anderson v. Schust Co., 262 Mich 236, was controlling, and appellee in its brief agrees with the court and stresses this case.
In the Schust Case the company’s employee was charged with negligent driving as he proceeded from Grand Rapids, where he was employed, to Pincon ning, approximately 150 miles away, where he intended to visit his father. He drove defendant’s vehicle with defendant’s foreman’s consent bnt contrary to defendant’s orders.
The Sch/ust Case differs from the present case because there was no evidence in that case that on occasions previous to the day of the accident defendant’s foreman had allowed said employee the use of defendant’s vehicle for his own personal use. This Court, in affirming a directed verdict for defendant in the Schust Case, stated (p 240):
“There is no question but that Mr. Rohring (branch manager) had instructions the motor vehicles of defendant were to be used only in the business of the defendant, and were not to be used for private purposes.”
In directing verdict in the present case, the trial court stated:
“Both Gosso and Young under the proofs were aware defendant company policy and rules prohibited the use of the motor vehicles belonging to defendant company by their employees for their personal or private use.”
Nothing in this record sustains the trial court’s conclusion in this regard. Officers and executives of the defendant company testified as to the company’s policy and rules, but none testified of ever having so personally informed Gosso. The same witnesses expressed conclusions that foreman Young knew he was disobeying policy and rules in allowing Gosso the use of the truck for personal purposes, but none testified as to any conversation with Young in this regard.
Viewing the testimony in the light most favorable to plaintiff, as we must do in this kind of an appeal, we can only conclude that on the Saturday morning when Gosso found the truck could not he welded and repaired, he was of the opinion he would not be violating' company rules and policy to use said truck for his 11-mile jaunt to a nearby village to visit friends.
Defendant company was engaged in construction work in many States and had to meet the problem of obtaining the services of employees who worked and lived at a distance from their homes. Foreman Young was described by his superior officers as “one of our best foremen.” Young did not on this day of the fatal accident give the truck to Gosso to drive over 150 miles for his own personal needs and pleasure, as were the facts in the Anderson v. Schust Co. Case. There is no testimony connecting Young in any form, shape or manner with the Saturday episode, except Young’s instructions on Friday night to Gosso to do that which Gosso tried to do on Saturday morning plus Young’s previous approval of Gosso using said truck for his own personal use when such use did not interfere with defendant’s need of the truck for its business.
In Reitenga v. Kalamazoo Creamery Co., 288 Mich 161 (8 NCCA NS 28), defendant’s employee delivered an ice cream mixture over an established route north and west of Kalamazoo; defendant company operated a fleet of 28 trucks, parking said trucks in a lot near the creamery, with keys kept in the vehicles. On the day preceding the accident the employee finished his work about 1:30 p. m. and, with his foreman’s consent, took one of defendant’s vehicles to move his mother’s household effects. He accomplished this mission and returned defendant’s truck to the parking lot about 9:30 that night; he then proceeded to visit several taverns and later that night returned to defendant’s lot taking one of defendant’s vehicles and proceeded to drive toward his home. It was on this trip that the accident occurred.
Defendant’s employee testified he had been given permission by defendant’s sales manager and by its wholesale route supervisor to use defendant’s truck to drive to his home at night so that he might arrive at the creamery early enough mornings to begin deliveries. Defendant’s sales manager and, also, its route supervisor denied this testimony and denied having given the employee consent to such use of the trucks. Each further testified that neither had the authority to authorize the personal use of trucks by employees.
This Court in the Reitenga Case affirmed the judgment for plaintiff, and commented upon the testimony of defendant’s witnesses that they did not give consent for the use of the truck and had no authority to do so, by stating (p 163): “There runs through the testimony of defendant creamery company’s witnesses, however, evidence of loose control over the use of trucks that stood in the parking lot as well as permissive use by Northrup (employee) and others on certain occasions.”
Our Court in this Reitenga Case held that the question was not one for the trial court but rather for the jury and further commented upon Anderson v. Schust Co., supra, as follows (pp 164, 165):
“Appellant argues that Anderson v. Schust Co., 262 Mich 236, is controlling and that a verdict for defendant should have been directed. In the Anderson Case the consent was given by defendant’s agency manager, who was not acting at the time within the apparent scope of his authority or in furtherance of the business of defendant but in violation of its positive orders and instructions.”
In Kerns v. Lewis, 246 Mich 423, 425, 426, this Court dealt with the question as to whether the own er of a vehicle must know that it was being driven by a particular person, and stated:
“Does the essential consent mentioned in the statute relate to the driver, or to the vehicle ‘being driven’ ? The statute makes the owner liable if the ‘motor vehicle is being driven with his or her express •or implied consent or knowledge,’ and we cannot read into it the restriction that the particular driver must be known by and his driving consented to by the owner. The statute may be drastic, but we cannot render it less so by any permissible construction.”
In Wingett v. Moore, 308 Mich 158, this Court ■stated that implied consent may be gathered from a consideration of all the facts and circumstances and it is usually a question of fact for the jury and the jury has the right to draw reasonable inferences from the disclosed facts and circumstances.
We are not dealing in this appeal with the respondeat superior doctrine and, as we stated in the recent case of Peyton v. Delnay, 348 Mich 238, 248, the statute we interpret here is not a derivative of the respondeat superior doctrine. It is a measure adopted by the legislature to promote public safety by holding automobile owners accountable for certain negligent acts of the persons to whom they entrust their automobiles.
We agree with appellant’s contention that “defendant’s testimony as to company policy, letters to ■superintendents and safety meetings of supervisors and foremen merely raise an issue of fact. The trial judge erroneously accepted defendant’s proofs as being conclusive and overcoming any implied authority arising out of the course of conduct, thus watering the favorable-to-plaintiff testimony.”
The case should have been submitted to the jury for determination. The directed verdict and judg ment is set aside and the ease remanded for new trial. Costs to appellant.
Dethmers, C. J., and Carr, J., concurred with Kelly, J.
Edwards, J.
In this case we deal with a granted motion for a directed verdict. Hence, we .view the facts from the light most favorable to the plaintiff. Hulett v. Great Atlantic & Pacific Tea Co., 299 Mich 59; Anderson v. Kearly, 312 Mich 566; Peyton v. Belnay, 348 Mich 238.
Talcing such a favorable view of the facts, it appears plain that there was evidence from which the jury could have found that defendant Gosso frequently drove defendant Myers Company’s truck on personal business with the full knowledge and implied consent of defendant Myers’ agents. There is also evidence from which the jury could have found such, implied authority extending to the Saturday trip which resulted in this fatal accident. The recitation of the facts set forth in Mr. Justice Kelly’s opinion amply sustains these conclusions.
This case was tried before a circuit judge before this Court’s decision in Moore v. Palmer, 350 Mich 363, had been handed down.
Relying principally upon Anderson v. Schust Co., 262 Mich 236, the circuit judge felt compelled to direct a verdict. Anderson was one of a long list of cases wherein this Court modified the owner liability statutory test of the owner’s actual or implied consent or knowledge of the driving, by the additional test, in employee driver situations, of scope of employment.
In Moore v. Palmer, supra, 4 members of this Court voted to overrule this judicial modification of the owner liability statute for reasons set forth in full in the writer’s opinion therein.
We concluded (p 394) :
“The Michigan owner liability act, CLS 1954, § 257.401 (Stat Ann 1952 Rev § 9.2101), is an enactment founded upon the police power of the State. Its obvious purpose is to make owners of automobiles liable for the negligent acts of those to whom they entrust their vehicles. Liability under the statute is not limited by the common-law tests applicable to the master-servant relationship. The fact that a common-law action under the master-servant doctrine preceded the statute (and still exists) does not create any exception from the terms of the statute in favor of employers as a class.
“The statute carries within it its own test as to owner liability: whether ‘said motor vehicle is being driven with his or her express or implied consent or knowledge.’ CLS 1954, § 257.401 (Stat Ann 1952 Rev §9.2101).”
We will not repeat here the lengthy analysis of previous cases in this and other jurisdictions which led to this conclusion in the Moore Case.
On the reasoning of the Moore opinion referred to, this case is reversed and remanded for new trial as to both defendants.
Smith, Black, Voelker, and Kavanagh, JJ., concurred with Edwards, J. | [
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The certification by the Court of Appeals pursuant to Administrative Order No. 1984-2 that its decision in this case is in conflict with its decisions in People v Coyle, 104 Mich App 636; 305 NW2d 275 (1981), lv den 415 Mich 851 (1982), and People v Nieto, 122 Mich App 695; 333 NW2d 11 (1982), lv den 417 Mich 1052 (1983), is considered. In light of the fact that no application for leave to appeal has been filed and the fact that the Court has granted leave to appeal in People v Prieskorn, Docket No. 75370, ante, 859, in which this same issue is to be argued, the Court declines to take any further action. Court of Appeals No. 71094. | [
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Moore, J.
The chancellor who heard this case filed a written opinion therein which so clearly states the questions involved that we reproduce it here:
“At the time the Ferry Farm Addition to the city of Pontiac was platted the lots were sold subject to the following uniform restrictions:
“ ‘No building shall be built within twenty feet of tbe front line of tbe lot. Said lot shall not be occupied by a colored person, nor for tbe purpose of doing a liquor business thereon.’
“Defendant Morris and Anna Morris, his wife, both colored, have entered into a contract to purchase a lot in the subdivision, and the bill of complaint was filed by plaintiffs, who are owners of lots on the same subdivision and residents of the neighborhood, to restrain defendants from violating the restriction by occupying the premises in question. The record presents the sole question as to whether or not the restriction against the occupancy of the premises by a colored person is void as contravening the provisions of the 13th and 14th Amendments to the Constitution of the United States, while plaintiffs insist that the provisions of the Federal Constitution have no application and that the restriction is a matter of a purely personal action of the owner of the premises and is valid and enforceable.
“Every owner of land in fee is invested with full right, power and authority, when he conveys a portion away, to impose such restrictions and limitations on its use as will in his judgment prevent the grantee, or those claiming under him, from making such use of the premises conveyed as will impair the use or diminish the value of the part which he retains. The only limitation on this right is the requirements that *the restrictions be reasonable; not contrary to public policy and not create an unlawful restraint on alienation. These rights have been repeatedly recognized by our Supreme Court, and in a recent case the following quotation from 7 R. C. L. p. 1114 is cited with approval:
“ ‘A person owning a body of land, and selling a portion thereof, may, for the benefit of his remaining land, impose upon the land granted any restrictions not against public policy, that he sees fit, and a court' of equity will -generally enforce them.’ Davison v. Taylor, 196 Mich. 605, 611.
“The reasons urged on behalf of defendants, why these general rules are not decisive of the issue, are:
“(1) Because the restriction contravenes rights granted to defendants by the 13th and 14th Amendments to the Constitution of the United States.
“(2) Because the restriction is contrary to public policy.
“These reasons will be discussed in their order.
“1. Since the days of the civil rights cases the law has been regarded as settled that the provisions of the 13th and 14th Amendments applied to legislative acts of the State rather than the actions of individuals. In the Civil Rights Cases, 109 U. S. 3 (3 Sup. Ct. 18), the United States Supreme Court, in passing upon the scope of these amendments, said:
“‘It is State action of a particular character that is prohibited. Individual invasion of individual rights is not the subject-matter of the amendment. It has a deeper and broader scope.’
“And again in United States v. Cruikshank, 92 U. S. 542, it is said:
“‘The inhibition of the 14th Amendment applies exclusively to actions by the State, and has no reference to actions by individuals.’
“In an exhaustive opinion in Plessy v. Ferguson, 163 U. S. 537 (16 Sup. Ct. 1138), the court said:
“ ‘The object of the Amendment (14th) was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish the distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the State legislatures in the exercise of their police power.’
“It is interesting to note that in the foregoing case the Supreme Court of the United States sustained the validity of a statute of' Louisiana providing for the separation of races in passenger ears as not being repugnant to the provisions of the 14th Amendment.
“It would seem settled by the foregoing decisions of the highest court of our land that the provisions of the 13th and 14th Amendments cannot be invoked in the present case. The issue presented arises out of individual rather than State action and is to be determined wholly as a domestic issue. The case of Gandolfo v. Hartman, 49 Fed. 181 (16 L. R. A. 277), cited by defendants, has but little bearing on the issues presented. In that case a covenant not to rent property to a Chinaman was held to be void and unenforceable. The effect of the 14th Amendment was discussed by the court, but the case appears also to have turned upon the provisions of the treaty with China which guaranteed its citizens the equal protection of our laws.
“2. Is the restriction contrary to public policy?
“It has been said that certain acts are contrary to public policy so that the law will refuse to recognize them when they have a mischievous tendency so as to be injurious to the interests of the State. This brings up the question as to what interests of the State are likely to be injured if an owner of property, for reasons which are satisfactory to himself, refuses to sell himself, or permit his assignors to sell to certain persons who may be distasteful to him as neighbors. Are there any interests of the State which will be promoted or advanced compelling the creation of such a condition in the community? The law is powerless to eradicate racial instincts or to abolish distinctions which some citizens do draw on account of racial differences in relation to their matter of purely private concern. For the law to attempt to abolish these distinctions in the private dealings between individuals would only serve to accentuate the difficulties which the situation presents.
“The precise issues presented have been squarely before the courts of last resort of several States, and have been decided adversely to the contentions of defendants.
“In Los Angeles Investment Co. v. Gary, 181 Cal. 680 (186 Pac. 596, 9 A. L. R. 115), the court distinguished between a restriction against the sale and one against the occupancy of certain property by persons other than of the Caucasian race. The former was held invalid, as an unlawful restraint on alienation, while the latter was upheld.
“In Koehler v. Rowland, 275 Mo. 573 (205 S. W. 217, 9 A. L. R. 107), the supreme court of Missouri held that a condition in a deed against the transfer, lease or renting of the property in question to negroes was one which the vendor had a right to make and was not void on the ground of public policy. The same court in Keltner v. Harris (Mo.), 196 S. W. 1, also held that where an owner of real estate made a contract of sale of the same to a white man, and after making the deed discovered that it was made to a colored man for whom the white man was merely an agent, that the conveyance would be voided on the ground of fraud, saying:
“ ‘If it was distasteful to plaintiff to have a colored man as his adjoining neighbor he had a legal right to refuse to sell to him or his agents the property in question. In other words, no man is bound to sell his property to a proposed purchaser whose presence is unsatisfactory to him as a neighbor, whether he be white, black or of some other color.’
“The same question was also before the supreme court of Louisiana in Queensborough Land Co. v. Cazeaux, 136 La. 724 (67 South. 641, L. R. A. 1916B, 1201, Ann. Cas. 1916D, 1248), where it was held that a condition in a deed that the grantee should not sell to a negro did not violate the provisions of the 14th Amendment and was not against public policy.
“One of the purposes of the restriction in the instant case was apparently to preserve the subdivision as a district unoccupied by negroes. Whether this action on the part of the owner was taken to make the neighborhood more desirable in his'estimation or to promote the better welfare of himself and his grantees is a consideration which I do not believe enters into a decision of the case. So far as I am able to discover there is no policy of the State which this action contravenes. Were defendants’ claim of rights based upon any action taken by the authority of the State an entirely different question would be presented.
“Defendant’s motion to dismiss the bill of complaint will therefore be denied. The injunction heretofore issued is however broader than warranted by the provisions of the restriction. The restriction covers the occupancy of the property by a colored person only. In terms at least it would not be violated by leasing the same to a colored person so long as such person did not occupy it. The temporary injunction heretofore issued will therefore be modified to the extent of prohibiting defendant from occupying the premises himself, or from permitting the same to be occupied by a colored person, and as so modified, will be made permanent.
“Glenn C. Gillespie,
“Circuit Judge.”
A decree was made in accordance with the opinion.. The case is brought here for review by appeal.
Counsel urge the same defenses that were urged in. the court below. The following cases are cited by counsel for the appellant: Title Guarantee & Trust Co. v. Garrott, 42 Cal. App. 152 (183 Pac. 470); Buchanan v. Warley, 245 U. S. 74 (38 Sup. Ct. 16) Ferguson v. Gies, 82 Mich. 358 (9 L. R. A. 589, 21. Am. St. Rep. 576); Gandolfo v. Hartman, 49 Fed. 181 (16 L. R. A. 277); Windemere-Grand, etc., Protective Ass’n v. American State Bank, 205 Mich. 539; 18 C. J. pages 397-399, and other authorities. Some of these authorities do not sustain the contention of counsel.
We quote 18 C. J. p. 397, as follows:
“While restrictions against the use of property held in fee are not favored, yet where the intention of the parties is clearly manifested in the creation of the restrictions, they will be enforced in equity. Any use in contravention of the terms and objects of such covenants will constitute a breach for which relief may be obtained. Covenants restraining the use of real property afford an instance of that class of cases in which equity will charge the conscience of a grantee of land with an agreement relating to the land, although the agreement neither creates an easement nor runs with the land. The jurisdiction is not confined to cases in which an action at law can be maintained, but such covenants, although not binding at law, may be enforced in equity provided the grantee has taken with notice of the covenants.” Citing many cases in the notes.
In Windemere-Grand, etc., Protective Ass’n v. American State Bank, supra, it was held the restrictions would not be enforced in equity where the character of the locality had changed.
In Ferguson v. Gies, supra, this court gave effect to the plain provision of a statute. A reference to the other cases will show them easily distinguishable from the instant case.
Counsel say in the brief:
“Under the theory of our American democracy and citizenship, negroes, or any other race or class, ought not now to be forced to stand and plead for right, justice and equity which ought to be the common heritage of all men by virtue of their citizenship and domicile within, the jurisdiction of the United States. If the opinion of the learned trial judge is affirmed it will open a wedge to all kinds of discrimination, wrongs and injustice to a vast number of American citizens of African descent. Slavery was once defended by church and statesmen, but who today would want to be classified as an upholder of such a vile institution?
“Such a restriction as the one referred- to, if upheld, would place the negro and people of other sects and creeds in the same category as slaughter houses, livery stables, tanneries, garages, etc., and brand them as a nuisance, loathsome and undesirable in neighborhoods. * * *
“Would the learned trial judge’s decision stand the test of time? Will there always exist in this country conditions whereby judicial decision will band ten millions of people, as it affects the negro, three millions as it affects the Jew, and about thirty millions, as it affects the foreigner, and equally as many as it affects the Catholic, thus placing all of these classes in the list of undesirables? * * *
“We think the learned trial judge’s decision in this case, if affirmed, would in a short period of time take the course of the Dred Scott decision written by Mr. Justice Taney.”
We think the counsel has entirely misapprehended the issue involved. Suppose the situation was reversed, and some negro who had a tract of land platted it and stated in the recorded plat that no lot should be occupied by a Caucasian, and that the deeds that were afterwards executed contained a like restriction, would any one think that dire results to the white race would follow an enforcement of the restric tions? In the instant ease the plat of land containing the restriction was of record. It was also a part of defendant’s deed. He knew or should have known all about it. He did not have to buy the land and he should not have bought it unless willing to observe the restrictions it contained.
The issue involved in the instant case is a simple one, i. e., shall the law applicable to restrictions as to occupancy contained in deeds to real estate be enforced or shall one be absolved from the provisions of the law simply because he is a negro? The question involved is purely a legal one and we think it was rightly solved by the chancellor under the decisions found in his opinion.
The decree is affirmed, with costs to the appellees.
Fellows, C. J., and Wiest, McDonald, Clark, Bird, Sharpe, and Steere, JJ., concurred.
validity and enforceability of contract or covenant in relation to real property which discriminates against persons because of race, color or religion, see note in L. R. A. 1916B, 1208.
On provision in deed discriminating against persons on account of race, color, or religion, see note in 9 A. L. R. 120. | [
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Moore, J.
The plaintiff is the husband of Corilla A. Burns. Mrs. Burns brought suit against the defendant to recover' damages for injuries she received which were she claims the result of a defective highway. She recovered a judgment of $2,500. Mr. Burns also brought suit and recovered a judgment against the same township in the sum of $800 for the accident. Both cases were brought into this court by writ of error and upon the same record. An opinion was handed down at this term of court in the case of Mrs. Burns. A reference to that opinion {ante, 40) will make a long statement of facts in the instant case unnecessary.
The decision in the case of Mrs. Burns is decisive of all the questions involved in this case except one. Mr. Burns incurred liability for doctors’ and hospital bills and other expenses in excess of $300, and it is claimed those items should be the limit of the judgment, and that the judgment of $800 is excessive. This contention ignores the fact that Mr. Burns was deprived of the help and companionship of his wife while she was in the hospital. It also overlooks the fact that there was testimony that Mrs. Burns has, received permanent injuries which have made her less, efficient as a housewife during the more than three years that have passed since the accident, and that her lessened efficiency is likely to continue in the future. We do not think that upon this record the damages, are excessive. See Berger v. Jacobs, 21 Mich. 215; Tunnicliffe v. Railway Co., 102 Mich. 624 (32 L. R. A. 142).
¡The judgment is affirmed, with costs to the appellee.
Fellows, C. J., and Wiest, Clark, Bird, Sharpe, and Steere, JJ., concurred.
The late Justice Stone took no part in this decision.
excessiveness of verdicts in actions for personal injuries other than death, see note in L. R. A. 1915F, 30. | [
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Wiest, J.
Plaintiff hired out to defendants Wicks and Weltin for a day, to aid them in their light truck ing business, and while about such work, riding on one of their trucks driven by defendant Weltin, going north on Cass avenue in the city of Detroit, they approached a place where a wagon belonging to the defendant United Fuel & Supply Company was backed up to or just over the curb on the west side of the street with the team facing- the center of the street, and just as the truck was about to pass, the team was suddenly started and the wagon tongue struck and overturned the truck and plaintiff was injured. In the declaration filed it was charged in the first count that the accident was wholly caused by the negligence of the defendant United Fuel & Supply Company; in the second count it was charged the accident was wholly the result of the negligence of defendants Wicks and Weltin in driving the truck, and in the third count defendants were jointly charged with negligence. At the close of plaintiff’s proofs the trial judge directed a verdict of not guilty as to the United Fuel & Supply Company, on the ground the eount against defendants Wicks and Weltin was an admission that the driver of the truck was guilty of negligence, and such negligence was imputable to plaintiff. Thereupon plaintiff offered further proof against defendants Wicks and Weltin, and recovered a verdict against them for $1,000.
The case is here on writ of error sued out by plaintiff, and he asks that the judgment in his favor and the verdict and judgment in favor of the United Fuel & Supply Company be reversed and the case sent back for* a new trial.
Plaintiff insists he had a right to frame the declaration with inconsistent counts and to have such relief as the facts warranted at the trial. In support of this position he invokes Circuit Court Rule No. 21, § 7, which provides:
“Inconsistent causes of action or defenses are not objectionable, and when the party is in doubt as to which of two or more statements of fact is true, he may in separate counts or paragraphs allege or charge facts although the same may be inconsistent with other counts or paragraphs in the same pleading, and will be entitled to such relief as the facts may warrant, under either count or paragraph ”
The rule mentions inconsistent causes of action and the question arises as to what this term means. In Post v. Campau, 42 Mich. 90, it was held:
The elements of a cause of action are (1) a breach of duty to another, and (2) a damage to the latter resulting from it.
The use of the term in the rule does not have reference to the right of the plaintiff to institute an action; but to the state of facts which give him a right to sustain an action. See 1 C. J. p. 987.
This provision in the rule is new and intended to avert the former risk of a pleader determining at his peril which of two or more statements of fact is true. If such is its purpose, and the pleader in separate counts alleges and charges inconsistent facts, the charge in one count cannot be taken as an admission against the charge in another count. If that is done then the rule is a snare instead of an aid. If the United Fuel & Supply Company could invoke the charge of negligence in the count against Wicks and Weltin as an admission absolving it from liability, then Wicks and Weltin had the same right to claim the charge against the United Fuel & Supply Company constituted an admission of their non-liability, and plaintiff.would “fall between two stools.”
We are of the opinion that, where the pleader is con-i fronted with an uncertainty as to which of two defendants concerned in an accident occasioning injury to a plaintiff should be charged to respond in damages, he may charge both defendants, but should employ separate counts, and any inconsistency in statements in doing so is saved from defeating his action by the court rule mentioned. The pleader should, however, intimate the uncertainty leading him to employ counts inconsistent in their statements.
The learned circuit judge was in error in considering the charge against Wicks and Weltin as an admission of negligence on the part of the driver, of the truck and imputable in law to plaintiff and a bar to his right to maintain his suit against the United Fuel & Supply Company. The error in so directing a verdict in favor of the United Fuel & Supply Company was not cured by the verdict subsequently rendered against Wicks and Weltin. The plaintiff now has a right, on account of such error, to go back with his case to the point where he was erroneously turned from the course he had a right to pursue.
The case is somewhat complicated by the fact that the plaintiff proceeded under the second count and recovered judgment against the defendants Wicks and Weltin. In doing this, however, he did not waive his right to have a review of the judgment of the trial court discharging the defendant United Fuel & Supply Company.
It is urged the judgment against Wicks and Weltin has determined the non-liability of the defendant United Fuel & Supply Company, because, if the accident happened by reason of the negligence of the driver of the truck, such negligence, in law, is imputed to the plaintiff who was riding on the truck.
It appears that plaintiff at the time of the accident was in the employ of the defendants Wicks and Weltin, and he was riding on the truck in pursuance of his employment, and it is claimed in his behalf that the rule imputing the negligence of the driver to one riding with him does not apply in case of employer and employee when the employer is driving. '
Our attention is called to Lundergan v. Railroad, Co., 203 Mass. 460 (89 N. E. 625), holding that the negligence of the master in driving is imputable to the servant riding with him. In that case the servant actively participated in judging whether the vehicle could safely proceed, and it was held both the employer and employee failed to exercise due care.
It is stated in 20 R. C. L. p. 159:
“If the relation of master and servant exists between the passenger and the driver — that is to say, if the passenger is the master and the driver is his servant — and the latter’s negligence contributes to the injury the former suffers through the negligence of a stranger, the driver’s negligence is imputable to the passenger, and the stranger is not liable.”
This, we think, is the true meaning of the expression so often encountered in the books, to the effect that the relation of master and servant makes the driver’s negligence imputable to the passenger. But this does not mean that an employee riding on a truck driven by his employer and while about the business he is hired to do, and has no charge of the truck and cannot direct its operation, is imputable with the negligence of his employer.
It is stated in a foot note in 8 L. R. A. (N. S.) 638:
“While the negligence of a servant driving is imputable to his master riding in the vehicle, the negligence of the master driving is not imputable to the servant. The servant, has no control over the master.”
In 29 Cyc. p. 545, it is said:
“The negligence of the master will not be imputed to a servant so as to prevent recovery by the latter for injuries sustained by a third person,” citing cases, including Philip v. Heraty, 135 Mich. 446.
In Lake Shore, etc., R. Co. v. Miller, 25 Mich. 274, the court stated that defendant in error was guilty of negligence in fact, and while it is also stated she was in the employ of the driver of the wagon struck by the train, there is nothing’ to show whether she was with him in the course of such employment or merely on her way to town for her own convenience. We have examined the original record in the office of the clerk and find the following testimony was given upon that point:
“Q. Did you live with Mr. Eldridge some time?
“A. No, sir.
“Q. How long?
“A. I had just went there to help them clean house. I was to work in Coldwater. * * *
“Q. Where were you going at that time?
“A. Coming to Coldwater to Mr. Kibbes.
“Q. Where were you going?
“A. I was coming from the Black Hawk mills and going to Coldwater.”
Upon consideration of the cases bearing upon the question, we hold the negligence of the master, in driving, is not, as a matter of law, imputable to the servant riding with the master in the course of his employment. Circumstances may be such, however, by way of participation by the servant in the driving or degree of care exercised, as to constitute the negligence of the master as well the negligence of the servant riding with him.
The judgment in favor of defendant United Fuel & Supply Company and the judgment against defendants Wicks and Weltin are both reversed and a new trial granted, with costs to plaintiff against defendant United Fuel & Supply Company.
Fellows, C. J., and Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.
The late Justice STONE took no part in this decision. | [
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Sharpe, J.
The defendant was convicted and sentenced under section 15483, 3 Comp. Laws 1915. The complaint charged that he—
“was guilty of disorderly conduct, for that the said defendant then and there was making and assisting in making a noise, disturbance and improper diversion by which the peace and good order of the neighborhood was disturbed.”
The only witness sworn was Police Officer Roche. He testified that while near the corner of Griswold street and Michigan avenue in Detroit he noticed the defendant and another man among a number of people standing in the safety zone waiting to board a street car; that they “seemed to be moving around;” that as the car stopped they—
“began to push and jostle unnecessarily, and at that time I ran from the sidewalk out to where they were;”
that they each had a light overcoat on their arms. Over objection of defendant’s counsel, he was permitted to indicate how they apparently jostled one person, the inference being that they were getting ready to pick his pocket. He attempted to arrest both of them, but the man other than the defendant broke away and fled and was not afterwards apprehended.
The court charged the jury that there was no evidence of any noise having been made, that they must confine their deliberations to “disturbance and improper diversion.” He further instructed the jury:
“Reference has been made here to a charge of larceny from, the person. Now, there is no evidence here, there is no charge or claim here by the people, that the defendant was committing the crime known as larceny from the person, but men who are engaged in that activity, sometimes in the practice of their vocation, will get into a crowd, — the crowd boarding a street car, we will say, — two men working together; one gets in front, the other gets behind, and the victim is in between the two; the man in front jams back, the man behind jams forward. Now, it may be that they do not accomplish their purpose of taking any property from the person under these circumstances; it may be that their victim is entirely unaware of the fact that an attempt has been made to take from him his property, but a disturbance of the’ peace has been created because the right of the citizens to use the streets and the public places in a proper and lawful manner has been infringed upon, and such conduct as that would constitute a disturbance of the peace.”
The assistant prosecuting attorney, in his closing' argument, said “something to the effect that perhaps] a pocketbook was what the defendant was after.” An objection and exception was taken to this remark, but. it was evidently not deemed improper by the court. He further said:
“I will say one more thing, gentlemen of the jury? In my opinion, under the circumstances of the case and as you ought to know them to exist from what Officer Roche told you, that a verdict of not guilty in this ease would comprise in itself a nice invitation for every dip and every pickpocket in the United States to come to Detroit and ply their trade.
“Mr. Nichols: I take an exception to that.
“The Court: Very well.
“Mr. Moll: (Continuing) And with safety and with official sanction.
“Mr. Nichols: I ask at this time that this be declared a mistrial.
“The Court: I don’t think the prosecutor is going beyond the deductions he is entitled to draw from the testimony.
“Mr. Nichols: For disturbing the peace?
“The Court: From the testimony, I say, not from the charge.
“Mr. Nichols: I want an exception.”
It seems apparent to us that the defendant was tried and convicted by the jury of an attempt to commit a larceny from the person. We do not think the elements necessary to establish an offense under this statute were proven.
The statute has long been on our books. It reads, in part, as follows:
“If any person shall make or excite any disturbance or contention in any * * * street, * * * he shall be deemed guilty of a misdemeanor.”
As first enacted, the limit of punishment was 10 days. This has, by amendment, been increased to 90 days. In the language of the statute, there must be a “disturbance or contention.” It does not appear that any person other than the officer was “disturbed” or that there was any “contention” until he sought to make the arrest. It seems clear to us that the offense charged was not proven and that defendant's motion for a directed verdict of “not guilty” should have been granted. The language of Mr. Justice Campbell in Ware v. Branch Circuit Judge, 75 Mich. 488, will be found illuminating on the question presented. See, also, 9 C. J. p. 386, and cases cited.
We are frequently asked to reverse cases for improper argument of prosecuting officers. That here complained of had no justification. If the testimony tended to show that the defendant was guilty of an attempted larceny, he should have been so charged. Counsel had the right to draw all reasonable inferences from the proofs submitted which tended to show guilt of the offense charged, but had no right to infer or challenge the attention of the jury to the fact that defendant was committing a crime with which he was not charged.
The conviction and sentence are set aside and the defendant discharged.
Fellows, C. J., and Wiest, Clark, Bird, Moore, and Steere, JJ., concurred.
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Bird, J.
Defendant was informed against and convicted in the Newaygo circuit court for having violated Act No. 338 of the Public Acts of 1917, as amended. The information charged him with selling and keeping for sale, giving and furnishing and having possession of intoxicating liquors on July 4, 1921. The first witness for the people testified, under objéction, that defendant sold him liquor on July 3d. The second witness gave evidence of a sale to him on July 4th. Subsequently the court struck out the testimony of the first witness with reference to the sale on July 3d, and the case went to the jury on the sale made on July 4th. Defendant assigns error on the admission of the testimony of the sale of July 3d as giving testimony of another and distinct offense. The allegation of “time” was made under a videlicet, and had there been no proof of a sale on the 4th it would have supported the allegation in the information. 3 Comp. Laws 1915, § 15746; Keator v. People, 32 Mich. 484. The question of “time” was not of the essence of the offense, but the court subsequently struck out all the evidence pertaining to the sale on July 3d, and at the close of the case charged the jury as follows with reference to it:
“Respondent’s counsel calls my attention to a transaction alleged to have taken place on the 3d and the evidence in relation thereto. I think the record is clear on that. You recall I instructed you you should not consider that for any purpose whatsoever, and for fear I have not, I again instruct you that you should not pay any attention to that testimony whatsoever. This respondent has nothing to do with that charge, and you should not weigh it in connection with this case at all, the transaction whereby it is claimed liquor was sold to Shippy on the 3d of July. That should be eliminated from your mind.”
In view of this admonition just at the close of the case we think the error was cured, if it can be said to have been one under the rules of evidence, and the count charging possession of intoxicating liquors.
Complaint is made of a statement made by the prosecutor while examining one of his witnesses. Defendant’s counsel kept insisting that the prosecutor was asking leading questions. These had been objected to several times and some of them excluded on that ground. Finally the prosecutor said:
“Now, just a minute, witness, I insist that this is a hostile witness and I have a right — I have a statement in a John Doe proceeding. I know what I am up against in liquor cases and I am not going to stand for it at all.
“Mr. Turner: I object to the statement of counsel before a jury.
“The Court: Mr. Prosecutor, that is an improper statement and the jury will disregard it.”
As the court instructed the jury, the statement was an improper one and should not have been made by the prosecutor. But if errors of this character were always reversible error, seldom would a case be tried without reversible error. We are unable to see that the defendant’s case was seriously prejudiced by the incident.
Counsel insists that the trial court was in error in refusing to direct a verdict in behalf of the defendant at the close of the trial. The testimony of the second witness sworn by the people, if believed, would justify the jury in finding defendant guilty of the offense charged. We think no error was committed in this respect.
Complaint is made of the following instruction to the jury:
“It has been argued you should not separate this man from his wife and send him to a felon’s cell. You are not concerned in that; you are not concerned in the penalty, that is a matter for the discretion of this court, and if you were informed in any way as to the penalty that might be handed out, you should not be influenced thereby.”
This instruction was not error. If counsel insists upon making appeals of that character to the jury he must be content to have them corrected by the trial court. We find no reversible error assigned.
The judgment of conviction is affirmed.
Fellows, C. J., and Wiest, Clark, Sharpe, Moore, and Steere, JJ., concurred.
The late Justice Stone took no part in this decision.
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Wiest, J.
This isi a contest over the will of Anna L. Carlson, who at the time of her death was 87 years of age. Proponent and contestants are daughters, of mature years, of the testatrix. June 5, 1920, the will was executed, and July 14th following the testatrix died from pleurisy. She came to this country with her husband from Sweden about 45 years ago, and they acquired a small farm upon which they lived at the time of the death of her husband, February 1, 1920. The inventory of the estate shows the value of the real estate to be $4,500 and personal property $415. The will was duly allowed in the probate court, and an appeal taken to the circuit court where contestants claimed their mother was mentally incompetent and the will was the result of undue influence practiced by proponent. The issues came on for trial, and at the close of the proofs counsel for proponent moved the court to direct a verdict sustaining the will, on the ground that no evidence had been given justifying the submission of the issues of mental incom petency and undue influence to the jury. The learned trial judge expressed some doubt at that time, but left the issues to the jury with permission to proponent to renew the motion, if necessary, for judgment non obstante veredicto. The jury returned a verdict against the will and, in answer to special questions submitted by contestants, found the testatrix was mentally competent but undue influence was practiced in obtaining the will. Thereupon the trial court, on motion of proponent, entered judgment sustaining the will, holding there was no evidence to go to the jury upon the issues presented by contestants. The contestants bring the case here and ask that the judgment so entered be set aside and judgment ordered entered in accordance with the verdict.
The verdict of the jury may be considered as ending the contest as to the mental competency of the testatrix, and we will consider the question of whether there was evidence to go to the jury upon the issue of undue influence, and upon this we must have in mind the fact that the testatrix was mentally competent to make the will. There was no direct testimony showing any acts of undue influence practiced by proponent or any one else in her behalf, but it is claimed there was opportunity for undue influence while testatrix lived at the home of proponent and the will shows that it was contrary to the former expressed intention of testatrix. There must be a showing of something more than mere opportunity and unequal distribution of the property, to constitute undue influence. But it is said that the father had expressed the wish to have the children equally remembered and the testatrix agreed with him and the will departs from such intention and this is some evidence of undue influence exercised by the chief beneficiary. In Re Haslick’s Estate, 195 Mich. 432, we held:
“Evidence that a testator had repeatedly told his neighbors hpw he was going to dispose of his property and a disposition of his property not in accordance with such statements is not sufficient proof of undue influence.”
Out of her little property testatrix willed proponent about $3,300 and contestant Emma Broman $1,000, and contestant Tillie Barrett $100, and at the time of executing the will explained her reasons for doing so. She first told the person who drew the will that she wanted to give Emma $800 and Tillie $1, but at the solicitation of proponent, who was with her, she finally increased the amounts as fixed in the will. This attitude of proponent bears no stamp of undue influence unless it be reasoned that it was a cunning-attempt to hide her machinations. We may reasonably infer that one intent upon dictating the terms of a will in her favor and with power to do so would not be likely to so insist.
The record is too long to be reviewed in detail, and it would be of no benefit to do so. It is sufficient to say that it has been carefully examined and we find the disposition of her little property by the testatrix was not so unnatural as to admit of the inference that it was the result of undue influence practiced upon her by proponent. The disposition of the property appears to have been moved by a motherly consideration and the testatrix had in mind the relations with her daughters and their several claims upon her bounty.
We have not overlooked the fact that, at the time the will was made, the testatrix was living in the home of the proponent, and had been there several weeks, but this was a matter of necessity and agreeable to contestants, and the kindness of proponent in furnishing her old mother with a home must not be lost sight of. The relation so established was not a fiduciary one militating against the bequest to proponent. Severance v. Severance, 90 Mich. 417. We find no evidence that the relation was abused by proponent, and no facts and circumstances from which it may reasonably be inferred that the will was the result of undue influence practiced by proponent or any one in her behalf.
The circuit judge was right in entering judgment sustaining the will and the same is affirmed, with costs to appellee.
Fellows, C. J., and Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.
The late Justice Stone took no' part in this decision. | [
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Sharpe, J.
The first count in the information filed against defendant charged him with unlawfully selling one quart of whisky to William L. Waltman at the township of Grass Lake in the county of Jackson on June 24, 1921. Two other counts were added, but withdrawn, and need not be considered. He seeks review of his conviction on exceptions before sentence.
From the testimony it appears that certain officers, having suspicion that defendant was violating the prohibition law, went to the summer hotel conducted by him on Mack Island and registered as guests. Mr. Bresler was a Federal agent. Waltman was connected with the food and drug department of the State. They were accompanied by relatives of Waltman. They had provided themselves with several small bottles of whisky. They sought to gain defendant’s confidence by drinking in his presence and in the presence of a man in his employ. One of them intentionally dropped a small bottle from his pocket on the floor of the porch of the hotel on which they were sitting. The second day they were there Bresler testified he asked defendant for liquor and defendant expressed a willingness to sell him a quart for $17. Bresler asked defendant to bring it to his room, to which he and Waltman then went. Defendant soon after appeared with a bottle of old American whisky. He was handed a $20 bill, went out and soon after returned with the change.
The defendant was called as a witness in his own behalf. In his testimony, as set forth in narrative form, appears the following:
“Bresler says to McIntyre ‘Any chance of getting any liquor around here?’ McIntyre kind of hesitated, but thought they were pretty good fellows and said ‘Well, I have got two or three bottles of pretty good stuff. I am not crazy about disposing of it, but if you want to pay the price for it I will let you have one of the bottles.’ Bresler asked him what the price would be and he said $17, and Bresler says ‘All right, go and get it.’ McIntyre had two or three bottles in his room and. he went upstairs and got one of them which was old American whisky; that he brought it down in a newspaper and took it into the room where Bresler and Waltman was; that Waltman was slightly under the influence of liquor, that he swooned over on the bed and fell back asleep like and that Bresler had to kick him on the foot to kind of revive him; and Bresler asked Waltman if he wanted to get in on this. He said yes, and Bresler gave McIntyre $20 and McIntyre later gave him back the change. But just before this, McIntyre said to Bresler and Waltman: ‘Now, this bottle shows evidence of being tampered with, but it has not been; it hasn’t been out of my presence since I have had it some time, but it is probably too hot where I had it in my room. Take a drink of it and see if it is all right. I would not want you to pay for it, if you didn’t think it was all right.’ That they each had a drink out of this bottle, that is, the two officers did but was feeling kind of good; had two or three drinks before that, referring to the drinks out of other bottles before, so he took a drink out of the bottle just to please them. McIntyre was asked why he furnished Bresler this quart of liquor and his answer was T presume it was the way they used me; they had plenty of liquor and gave me all I wanted of it, and I was feeling pretty good.’ He said he did not have the liquor there for sale; that he told them so at the time and that was the reason he put the price on it of $17, that is, that he did not care to let it go; that they told him they would have to leave, would have to break up there if they did not get some more liquor. * * * He admitted that he knew the price of whisky and that he was not so drunk but what he knew that and that he knew enough to make the change of the money and that he was sane and conscious and knew it was a violation of the law, except he says he did not know it in fact right then, just what he was doing. * * * • McIntyre swore that he supposed he was, violating the law when he sold the whisky to Bresler and Waltman and knew that it wasn’t right, but he didn’t know in fact right then just what he was doing, that they, found some whisky in his hotel afterwards.”
In view of this admission on the part of the defendant, the trial court was fully justified in instructing the jury that it was their duty to convict him. They retired and promptly did so.
Defendant’s counsel urges that the testimony of the people’s witnesses should have been “stricken from the case for the reason that officers have no right to decoy with people or connive with people for the violation of the law.” He calls attention to the decisions of this court in Saunders v. People, 38 Mich. 218; People v. McCord, 76 Mich. 200, and People v. Pinkerton, 79 Mich. 110. In those cases the court in no uncertain terms characterized the acts of officers in conniving with or persuading people to commit crimes and then prosecuting them therefor. The record in this case presents no such facts. It is true that the officers sought to gain the confidence of the defendant and to satisfy him that it would be all right to sell them the whisky, but their acts did not constitute an unlawful inducement. The rule is well stated in People v. Liphardt, 105 Mich. 80, 83:
“We know of no case that holds that one who has committed a criminal act should be acquitted because induced to do so by another. It is merely when the criminality of the act is shown to be absent by the fact of the inducement that such proof justifies acquittal.”
See, also, People v. Everts, 112 Mich. 194, and cases cited; People v. Lalonde, 171 Mich. 286.
The exceptions are overruled. The trial court may proceed to judgment on the verdict.
Fellows, C. J., and McDonald, Bird, Moore, and Steere, JJ., concurred.
Wiest and Clark, JJ., concurred in the result. | [
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Clark, J.
Plaintiff, an adult deaf-mute, on Hill street crossing in Ann Arbor, in the day time, was struck by a passenger train of defendant and injured. There was no gate or flagman at the crossing which is about 2,000 feet south of the station, from which the train was proceeding at the rate of 12 miles per hour. Counsel agree upon the rate of speed, although the testimony on the subject is not harmonious. Plaintiff was familiar with the locality. He walked along Hill street on the sidewalk which ended some 30 or 40 feet from the track. The intervening space was wet and muddy. He picked his way across, claims to have looked before going upon the track and that in attempting to cross, the crossing being wet and muddy, his foot became fast between a rail and the planking of the crossing and that while so situated he was struck by defendant’s train. He testified:
“Q. When did you first see the train?
“A. When was the track.
“Q. When who was on the track?
“A. About a one-fourth off the track I was inside, cannot come back. I made one step more to go out, my foot caught and turn back. I saw the about 7 steps long. There was time no to hurt if my foot no caught.
(Intermission for view by jury)
“Q. What do you mean by 'about seven steps?’
“A. I mean that after my foot caught I saw the train 7 steps away.
“Q. How long was your foot caught before you were hit by the train ?
“A. About 10 to 14 seconds.”
There was testimony of obstruction to the view of the track from a point on the sidewalk, but we find no evidence that the approaching train might not have been clearly seen a distance of several hundred feet from points within the 30 or 40 feet between the track and the end of the sidewalk. The engineer said he had a clear view of the crossing for a distance of 1,000 feet, that he saw plaintiff near the track at the crossing, that when the engine was about 10 feet from the crossing, plaintiff went upon the tracks, that the air brakes and the emergency were at once applied and that he did all he could to avoid injuring plaintiff. The train was stopped within the space of about 75 feet. A witness for plaintiff who saw the accident said that plaintiff went upon the tracks immediately, 10 feet, in front of the train.
An averment of negligence of defendant is defective construction of the crossing: “that the planking between the rails of said tracks was so laid that a pedestrian could have his feet caught between the rails and said planking.” Subsequent or discovered negligence is also averred. Defendant offered no evidence, made a motion for a directed verdict that it was not negligent and that plaintiff was guilty of contributory negligence as a matter of law. The trial judge submitted the questions of defendant’s negligence, plaintiff’s contributory negligence, and defendant’s subsequent negligence to the jury. Plaintiff had verdict and judgment for $1,000. Defendant brings error, and presents the three questions above set forth.
Subsequent negligence. As we read this record, plaintiff’s testimony is contradictory. In the first part of Ms testimony quoted, plaintiff states that he saw the train when he was entering upon the tracks, “one-fourth off the track” but “inside” and “cannot come back,” the train being “7 steps” distant. He then made a step “to go out,” out of the danger as we read it, but his foot caught. In the latter part of his testimony quoted, given after the intermission for a view by the jury, he states that his foot was caught 10 to 14 seconds before he was hit by the train. At the rate of 12 miles per hour, the rate would be 17.6 feet per second, and under this part of his testimony therefore the train would be at least 176 feet from him when his foot was caught, and upon such latter testimony alone a question of gross or subsequent negligence appears under the holding in Fike v. Railroad Co., 174 Mich. 167, and cases there cited.
But under the testimony of plaintiff, first above quoted, there is no room for the claim of subsequent or gross negligence. Plaintiff’s statement that he went upon the tracks but “7 steps” in front of the train is substantially the same as that of the engineer. And plaintiff’s witness who saw the accident fixes such distance at 10 feet. Upon a motion to direct a verdict for defendant, the evidence must be viewed in the light most favorable to plaintiff and when so viewed the portion of his testimony sustaining the theory of subsequent negligence made an issue of fact for the jury. It was for the jury to say what weight shall be given to his testimony as a whole. See Emery v. Guarantee Co., 209 Mich. 295; Parnell v. Pungs, 190 Mich. 638; Piehl v. Piehl, 138 Mich. 515; Kelly v. Freedman, 56 Mich. 321; Watson v. Watson, 58 Mich. 507; People v. Hansen, 183 Mich. 565; Burtch v. Child, Hulswit & Co., 207 Mich. 205; King v. Lumber Co., 93 Mich. 172; Pelton v. Schmidt, 104 Mich. 345 (53 Am. St. Rep. 462); Gardiner v. Courtright, 165 Mich. 54.
A province of the court is, upon proper motion, to exercise control if in its judgment the verdict is against the great weight of the evidence. Piehl v. Piehl, supra.
Contributory negligence. If defendant is chargeable with subsequent negligence, the fact that plaintiff’s danger arose in the first instance because of his own negligence does not prevent recovery. See Fike v. Railroad Co., supra. Nor can we say as a matter of law that the plaintiff was negligent in attempting to walk across the track in front of a train, 176 feet distant, approaching at the rate of 12 miles per hour. There being evidence to that effect, this question was properly submitted to the jury.
defendant’s negligence. We think the declaration as quoted averred defective construction of the crossing. The evidence is not positive and is lacking in detail, but we cannot say that from all the evidence the jury might not fairly infer such defect in construction and that defendant was negligent.
The charge taken as a whole fairly and concisely submitted the issues to the jury. That the verdict is against the great weight of the evidence and that the motion for a new trial therefore should have been granted are not discussed in the briefs and therefore are not considered.
Judgment affirmed.
Fellows, C. J., and Wiest, Bird, Sharpe, Moore, and Steere, JJ., concurred.
The late Justice Stone took no part in this decision. | [
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Sharpe, J.
The parties are the heirs at law of Johanna Baas, who died at the city of Holland in Ottawa county on January 29, 1917, leaving a last will and testament. Objections to the probate of the will were filed by the defendants. Pending the hearing, a conference of all the parties was arranged for by the plaintiff Nick Baas. It was held on March 31, 1917, in the office of Diekema, Kollen & Ten Cate, the attorneys who had filed the objections on behalf of the defendants. Derk J. Te Roller, who had drawn the will and was named as executor therein, was present at Nick’s request. The conference lasted several hours. Mr. Kollen (since deceased) and Mr. Ten Cate took part in the discussion. An agreement was finally reached, reduced to writing by Mr. Kollen, and the several conveyances necessary to give it effect prepared by him, and all were executed and delivered in conformity therewith. The objections to the will were then withdrawn and it was admitted to probate.
On March 16, 1920, nearly three years' later, this bill of complaint was filed to set aside this agreement and these conveyances. It is alleged that their execution by Nick Baas was procured-
“through fraud, deceit and misrepresentation and mistake, practiced upon him by the defendants; that he is uneducated and unable to read, write or understand the English language to a very great extent; that he entered into said contract on the understanding and agreement by said defendants that he would receive a deed from them of their interest”— <
in certain property owned by the testatrix at the time of her death.
The trial court found that:
“These instruments were all read over and explained to the several parties and were fully understood by them at the time the same were executed,”
and dismissed the bill of complaint. The plaintiffs appeal. It is their claim that the settlement gave the defendants “an inequitable or unconscionable advantage over the plaintiffs,” that it was made under a “mutual mistake of fact,” and “does not represent the true intent of the parties.”
Settlement of family difficulties or controversies arising out of the distribution of estates are favored, both at law and in equity, if at all reasonable and entered into understandingly. The termination of the controversy or a promise to forbear the .contest of a will is a valid and sufficient consideration for such an agreement. Conklin v. Conklin, 165 Mich. 571, 580; Layer v. Layer, 184 Mich. 663, 671. Such a settlement will, however, be set aside where there is affirmative proof that it was procured by fraud. But fraud is not lightly to be presumed, and the burden is on those alleging it to prove it. Donnelly v. Lyons, 173 Mich. 515; A. E. Wood & Co. v. Standard Drug Store, 192 Mich. 453; Torrent v. Torrent, ante, 381. Ordinarily, in order to entitle a party to relief by way of reformation of a contract on the ground of mistake, it must appear to have been mutual. Schlossman v. Rouse, 197 Mich. 399. But a mistake of one party of such a character that the minds of the parties cannot be said to have met, if clearly established, is ground for rescission in equity McGraw v. Muma, 164 Mich. 117; Sutherland v. Sutherland, 69 Ill. 481; Dulany v. Rogers, 50 Md. 524; Douglas v. Grant, 12 Ill. App. 273; Bancharel v. Patterson, 64 Minn. 454 (67 N. W. 356). See, also, note to Dolvin v. American Harrow Co., 28 L. R. A. (N. S.) 785 (125 Ga. 699, 54 S. E. 706), and 12 C. J. p. 350 et seq.
There is no proof sustaining the charge of fraud. The claim of mistake is based on the allegation that the settlement agreement was not read over to or understood by the plaintiffs and is said to be supported by the fact that under it Nick Baqs would not receive a fair share of the estate, though he was the principal beneficiary under the will. The record is very convincing that the written instruments were all read over and carefully explained by Mr. Kollen, both in English and in Dutch, before their execution. It is not apparent from the proofs that any advantage was taken of the plaintiffs. There is no evidence of the values of the respective properties and no comparison of the rights conveyed or surrendered can be fairly made. The delay of the plaintiffs in seeking relief is not satisfactorily explained. • In the meantime, the defendants withdrew their objections to the probate of the will and some of them made substantial improvements in reliance on the conveyances. We feel constrained to agree with the conclusion reached by the trial court.
The decree dismissing the bill is affirmed, with costs to defendants.
Fellows, C. J., and Wiest, McDonald, Clark, Bird, Moore, and Steere, JJ., concurred.
relief from mistake of law as to effect of- instrument, see note in 28 L. R. A, (N. S.) 785.
On effect of mistake as to legal rights, as affecting compromise and settlement, see note in 28 L. R. A. (N. S.) 841.
On compromise and settlement of controversy over will as changing nature of interest or estate under will, see note in 5 A. L. R.. 1384. | [
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Bird, J.
Defendant is a manufacturer of wooden wares in the city of Escanaba. C. Fred Hulswit was employed by defendant in the fall of 1918 to sell its wares. A part of his territory lay in Michigan and a part in Indiana. In January, 1919, he made a new contract with defendant to go to the west coast and represent defendant in the States of California, Oregon, and Washington. In pursuance of this contract he went to those States and began his work. Upon at least a portion of his territory he used an automobile. While so traveling in November, 1920, he met with an accident in which he lost his life. Defendant being subject to the Michigan workmen’s compensation law, plaintiff, his widow, and his two children by a former wife, made an application for a death award. After the usual proceedings the department of labor and industry granted plaintiffs’ petition. Defendant has removed the proceedings to this court by writ of certiorari, and raises the question
“that the department of labor and industry has no jurisdiction, or authority, under the statute in force at the time of this accident, to award compensation to the dependents of the deceased employee, who did not perform any services in the State of Michigan, and whose contract of employment did not contemplate any services to be performed in this State.”
While there is a slight difference in the facts of this case and those involved in Crane v. Leonard, Crossette & Riley, 214 Mich. 218, we think it must be controlled by the conclusions therein reached. In the case cited the work of the servant was partially performed in this State and partially in other States. In the case we are considering the services contracted for were entirely performed outside of the State. In Crane v. Leonard, Crossette & Riley, it was held that, as our compensation act was voluntary the relation was one of contract, and that the provisions of the act must be read into the contract between the employer and employee. This being the ground upon which our conclusions were reached in that case it must follow that the relations of the parties in this case must rest upon contract. If they do, the act would cover a case where none of the services were performed within this State, as well as a case where! they were partially performed within the State. It would hardly be consistent to hold that by reason of the contract relations the act would apply to services partially performed outside of the State, but would exclude cases where the services were entirely performed outside of the State. There are in the provisions of the act no limitations or restrictions which would oppose this view. The contracting parties were both residents of Michigan, and the contract which they made was a Michigan contract, and we see no reason why it should not be enforced by the Michigan tribunal.
The courts are not in unison on this question but the weight of authority is decidedly in favor of this view. The authorities are cited and the questions involved here are so thoroughly discussed in the opinion of Mr. Justice Fellows in the case of Crane v. Leonard, Crossette & Riley that it is unnecessary to repeat them here.
Another point made by counsel is that C. Fred Hulswit was violating his master’s instructions while traveling in an automobile instead of by train. The board found that there was no competent proof showing that Hulswit was given such instructions. We are satisfied with this conclusion.
Our views are in accord with those reached by the department of labor and industry and its award will be affirmed, with costs to plaintiff.
Fellows, C. J., and Wiest, McDonald, Clark,. ;Sharpe, Moore, and Steere, JJ., concurred.
constitutionality of provisions of workmen’s compensation acts which are limited to residents of the State, see note in 12 A. L. R. 1207. | [
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Sharpe, J.
On October 31,1890, plaintiff conveyed two lots in the city of Howell to the defendant William, her son, the other defendant being his wife. There was at that time a small residence on these lots. They were worth about $725 and subject to a mortgage of $88. William was at that time about 16 years of age. Plaintiff was then ill and at the home of a daughter, Mrs. Burden, in Howell. The deed was drawn by Mr. Montague, an attorney of Howell, since deceased. It contains no reservations. The property conveyed was all that plaintiff then owned. William continued to live with her in the home and contributed to her support until 1919, when he. married the other defendant. The plaintiff and her other children were much opposed to such marriage. It resulted in litigation between him and his sister, Mrs. Meyers, which reached this court. Meyers v. Gearey, 212 Mich. 449. Plaintiff refused to let the defendants come to her home, whereupon they mortgaged the property for $700 and went to live in Grand Rapids. In the meantime, William had improved the property to the amount of about $2,000 and had paid the taxes and provided for insurance thereon. At the time of the hearing it was said to be worth upwards of $4,000.
The bill of complaint herein is filed to set aside this conveyance from the mother to William. It is, alleged therein that she was importuned to execute the deed to him and consented on his promise to support and maintain her during the remainder of her life and that he now declines and refuses to do so. In the alternative it is prayed that the expenses of her support and maintenance and her burial be decreed to be a lien on the property conveyed. In the opinion filed the trial court said:
“The court is not of the opinion that this boy under age at that time agreed as a consideration for the deed to support his mother during the period of her natural life, and it appears to the court that if there had been such an agreement made at the time of the executing of this deed, that Mr. Montague would have placed it in the deed as one of its conditions.”
He refused to set aside the conveyance, but decreed that William must thereafter pay, during plaintiff’s lifetime, the taxes assessed against the property, the expense of keeping the buildings thereon insured, provide sufficient fuel to comfortably heat the house, pay for any medical services and nursing needed by plaintiff, pay the expense of her burial, and pay her $200 in cash per year beginning January 1, 1921, so long as she may live. All such payments were decreed to be a lien on the property. From this decree the defendants appeal.
We agree with the trial court that the deed was executed by plaintiff without any such promise on the part of William as is alleged. We find no proof in the record of any importunity on Ms part that his mother should make the deed. She was at that time ill and, as her other children were all then grown, she conveyed this property to secure it to him in case of her death. There was talk thereafter of its re-conveyance to her, and we are satisfied that he was willing to do so, but she declined to have it done. Had he not married, or had he married a woman of plaintiffs choice as well as his own, we have no doubt that he would have continued to support her in the home as he had theretofore done.
Considering the sum he has expended in improving the property, with her knowledge and consent, he has equities the court is also bound to respect and protect. Her possession of the home has not been interfered with by him. Her daughter, Mrs. Meyers, has lived with her in the home for the past 11 years. She has employment in the city.
While this court has always exercised its equitable power to protect the interests of aged people against improvident disposition of their property, we should not unduly do so at the expense of one child whose moral or legal obligation to support an aged parent is no greater than any of her ‘other children. Plaintiff, at the time of the hearing in April, 1921, was 87 years of age. In the ordinary course of events, her remaining years are few. Defendants’ counsel insists that should she live the expectancy of life, 2.47 years, he will, under the decree, be compelled to expend over $1,300, besides losing the interest on his investment in the property, estimated at nearly $400.
We are loath to disturb the conclusion reached by the trial court. The defendants express their willingness to submit to the terms of the decree in so far as it provides for payment of taxes and insurance on the property. Her necessities seem to require that he should do more than this. With some reluctance we conclude that he should also pay to her $100 per year and $100 toward the expenses of her burial. The payments provided for shall begin as of January 1, 1921.
A decree may be here entered in accordance with, this opinion. No costs of this appeal will be allowed. The plaintiff will recover her taxable costs in the trial court.
Fellows, C. J., and Wiest, Clark, Bird, Moore, and Steere, JJ., concurred.
The late Justice Stone took no part in this decision. | [
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Sharpe, J.
On August 22, 1921, the city of Grand Rapids adopted an ordinance “Providing for and Regulating the Operation of Taxicabs” in that city.- The plaintiffs, who “are persons operating motor vehicles for hire,” seek to restrain its enforcement by injunction. In section 1, the word “taxicab” is defined to “mean and include any motor vehicle engaged in the business of carrying persons for hire.” Section 2 makes it unlawful to operate a taxicab on the streets of the city without first obtaining a license to do so. An application for a license on a form provided must be filed with the city clerk. Certain information regarding the applicant and the type of car must be set forth therein. It is provided that the city clerk shall refer all applications to the city manager—
“who shall cause an investigation to be made of the fitness of the applicant as to character and ability, and shall transmit the application with his recommendation to the city commission. If in the opinion of the city commission the person making the application is a proper person, both by experience and character, they may authorize the granting of a license,” etc.
Section 4 contains somewhat similar provisions regarding the granting of permits to drivers of such vehicles. These sections are claimed to be invalid because they attempt “to confer upon the city commission, the arbitrary power to grant or refuse a license according to its whim or caprice.” The trial court sustained this claim and his decree declaring the ordinance void was largely based thereon.
The apparent confusion in the authorities is, in part at least, due to a lack of consideration of the subject-matter sought to be controlled and the source of such control. There are many occupations and kinds of business which, under the police power and the authority delegated by the legislature, may be regulated by the city authorities. Such regulation is permitted in the interest of the public peace, health, morals and general welfare of the city. While an individual has an inherent or natural right to engage in any lawful business on his own property, yet the nature of the business sought to be carried on may be such as to render it subject to regulatory control. Ordinances regulating slaughter houses, pawnbrokers, junk dealers, livery stables, pool rooms, places where articles of food liable to infection are kept for sale, and the like, have been sustained as a valid exercise of such power. Nuisances may also be abated. As to some of these, the power must be cautiously and sparingly exercised. As to others, there exists a greater control. As to still others, the business may be suppressed or prohibited, wholly or conditionally, as the particular facts may justify. Further discussion of this power seems unnecessary as the rules of law governing it seem well established. It is sufficient to say that the regulation must be reasonable, without discrimination, and fair to all alike.
The subject-matter of the ordinance here considered is the use of the public streets. Section 28 of article 8 of our State Constitution reads as follows:
“No person, partnership, association or corporation operating a public utility shall have the right to the use of the highways, streets, alleys or other public places of any city, village or township for wires, poles, pipes, tracks or conduits, without the consent of the duly constituted authorities of such city, village or township; nor to transact a local business therein without first obtaining a franchise therefor from such city, village or township. The right of all cities, villages and townships to the reasonable control of their streets, alleys and public places is hereby reserved to such cities, villages and townships.”
The power conferred upon a city by this section was considered by this court in People v. McGraw, 184 Mich. 233, and in Brennan v. Recorder of Detroit, 207 Mich. 35. In the former case it was said:
“By giving the language of the whole section its ordinary and natural meaning, public utilities were placed under control of the local authorities, and the local authorities may control within reason the use of their streets for any purposes whatsoever not inconsistent with the State law.”
It was also held that any attempt on the part of the State legislature to take away from cities such reasonable control was unconstitutional and void.
Taxicabs as defined in the ordinance are common carriers. Mr. Thompson, in his work on Carriers of Passengers, page 26, note 1, says:
“A common carrier of passengers is one who undertakes for hire to carry all persons indifferently who may apply for passage. To constitute one a common carrier it is necessary that he should hold himself out as such. This may be done not only by advertising, but by actually engaging in the business and pursuing the occupation as an employment.”
A public moving van was held to be a common carrier in Lawson v. Judge of Recorder's Court, 175 Mich. 375 (45 L. R. A. [N. S.] 1152), and in Terminal Taxicab Co. v. Kutz, 241 U. S. 252 (36 Sup. Ct. 583; Ann. Cas. 1916D, 765). One who holds himself out as a cartman, drayman or truckman, ready to carry goods for hire for all who may wish to employ him, was held to be a common carrier in Lloyd v. Haugh, 223 Pa. 148 (72 Atl. 516, 21 L. R. A. [N. S.] 188).
“A taxicab company following the business of transporting persons for hire and holding itself out to carry one and all is a common carrier of passengers, and is subject to all the liabilities of such a carrier.” Syllabus, Van Hoeffen v. Columbia Taxicab Co., 179 Mo. App. 591 (162 S. W. 694).
The authorities are collected and discussed at length in Cushing v. White, 101 Wash. 172 (172 Pac. 229, L. R. A. 1918F, 463), and note to the latter.
The streets of the city belong to the public. For ordinary use and general transportation and traffic, they are free and common to all, and any control sought to be exercised over them must be such as will not defeat or seriously interfere with their enjoyment. The plaintiffs, however, as common carriers have no right to such use for private gain without the consent of the city. Their use is accorded as a mere privilege, and not as a matter of inherent or natural right. City of Memphis v. State, 133 Tenn. 83 (179 S. W. 631, L. R. A. 1916B, 1151, P. U. R. 1916A, 825, Ann. Cas. 1917C, 1056); Desser v. City of Wichita, 96 Kan. 820 (153 Pac. 1194, L. R. A. 1916D, 246); Greene v. City of San Antonio (Tex. Civ. App.), 178 S. W. 6; Hadfield v. Lundin, 98 Wash. 657 (168 Pac. 516, L. R. A. 1918B, 909, Ann. Cas. 1918C, 942); Ex parte Dickey, 76 W. Va. 576 (P. U. R. 1915E, 93, 85 S. E. 781, L. R. A. 1916F, 840); In re Hoffert, 34 S. D. 271 (148 N. W. 20, 52 L. R. A. [N. S.] 949); Huston v. City of Des Moines, 176 Iowa, 455 (156 N. W. 883).
The distinction between the use by the public in the usual way for pleasure or business and as a place or instrumentality for business for private gain is fundamental. While as to the former the power to regulate must be sparingly exercised and only when necessary in the public interest, as to the latter the right to use may be given or withheld. This distinction is made clearly apparent when the decision in Matter of Frazee, 63 Mich. 396 (6 Am. St. Rep. 310), on which plaintiffs strongly rely, is read in connection with Love v. Judge of Recorder’s Court, 128 Mich. 545 (55 L. R. A. 618). In the Frazee Case, the right to the use of the streets for the purpose of a parade was in question. This was said to be a natural or inherent right, subject only to reasonable regulation, and it was held that the by-law which left “the power of permitting or restraining processions, and their courses, to an unregulated official discretion” was invalid. The Love Case involved an ordinance prohibiting the use of the streets or public places for the purposes of public addresses “except in accordance with a permit from the mayor, such permit to designate the time and place” when an address might be made. The Frazee Case was relied on as controlling. The ordinance was held to be valid and the distinction here sought to be made between permissive use and use as a matter of right wasi pointed out.
The only restriction on the control which the city may exercise over its streets under the constitutional provision is that it must be reasonable. The authority to grant a license must be conferred upon some person, body or commission. When the regulation affects private rights, it is held as a general rule that the requirements for obtaining a license must be so specifically pointed out in the ordinance as to permit all applicants who comply therewith to secure a license as a matter of right and that an arbitrary discretion to grant or refuse may not be conferred. In cases where the public health or safety is involved, this rule has been relaxed and a provision conferring discretionary power has been sustained. Lieberman v. Van De Carr, 199 U. S. 552 (26 Sup. Ct. 144), and Fischer v. City of St. Louis, 194 U. S. 361 (24 Sup. Ct. 673). In the former, an ordinance providing that-
“No milk shall be received, held, kept, either for sale or delivered in the city of New York, without a permit in writing from the board of health,”
was attacked because it conferred “absolute and despotic power to grant or withhold permits to milk dealers.” It was held that these were questions which arise in the administration of the law but do not affect its validity and that an arbitrary exercise of the discretionary power conferred was subject to review by courts in a proper proceeding. In the Fischer Case, the ordinance regulated the keeping of cow stables and dairies within the city limits. The court said:
“It would be exceedingly difficult to make exceptions in the ordinance itself without doing injustice in individual cases, and we see no difficulty in vesting in some body of men, presumed to be acquainted with the business and its conditions, the power to grant permits in special cases.”
In City of Grand Rapids v. Braudy, 105 Mich. 670 (32 L. R. A. 116, 55 Am. St. Rep. 472), an ordinance regulating junk dealers which conferred discretionary power on the common council to grant or refuse a license was held valid. It was said:
“Courts cannot interfere with legislative discretion, and are slow to declare ordinances invalid because unreasonable, when the power to legislate upon the subject has been conferred upon the common council. The council’s discretion, and not the court’s, must control. In such matters the city authorities are usually better judges than the courts.”
Where, however, the subject-matter sought to be controlled is one to which an applicant has a permissive right only, many courts have gone far in holding that the validity of the provisions under which such right may be attained cannot be questioned. Davis v. Massachusetts, 167 U. S. 43 (17 Sup. Ct. 731); Hadfield v. Lundin, supra; State v. Mayo, 106 Me. 62 (75 Atl. 295, 26 L. R. A. [N. S.] 502, 20 Ann. Cas. 512). (See quotation from the Davis Case in Love v. Judge of Recorder’s Court, supra.)
The provisions in sections 2 and 4 are, we think, well within the power conferred on the city under the constitutional provision. The criticism of counsel that section 2 does not provide that the information secured by the city manager shall be communicated by bim to the commission is over-technical. The manager is the servant of the commission. The reference of the application to him is for the very purpose of securing information on which the commission may act. It cannot be doubted that the commission could require him to lay before it the information on which his recommendation is based and we think it may fairly be said that the provision requires him to do so. The nature of the business licensed is such that its reasonable control necessitates the exercise of a wise discretion in deciding who shall be permitted to engage in it. The dangers incident to the use of the streets by automobiles for pleasure or business, if driven carelessly, have been many times pointed out by this court. Colborne v. Railway, 177 Mich. 139, 149; Patterson v. Wagner, 204 Mich. 593, 600. Such dangers and the inconvenience to traffic from taxicabs are even greater than from electric cars, which are confined to well-defined courses and move on metal rails. Provisions in the State law and municipal ordinances containing safety regulations have been upheld. People v. Dow, 155 Mich. 115; People v. McGraw, supra; Daugherty v. Thomas, 174 Mich. 371 (45 L. R. A. [N. S.] 699, Ann. Cas. 1915A, 1163). These regulations, applying as they do to persons using the streets as a matter of right, are general in their nature and apply to all alike.
Here, however, the plaintiffs seek to use the streets as a place in which to carry on a private business for personal gain. Their right to do so may be granted upon considerations outlined in the form of the questions to be answered in the application blank and may be made dependent upon their answers thereto and the information secured as to their character, fitness or other determining facts. Should the number of applications exceed the reasonable demands of the city for such service, the power to limit must be vested somewhere. Such demands may so vary from time to time, dependent upon the growth of the city, the use or non-use of the streets by street car lines and other considerations, that it would be impractical to express such limitations in an ordinance. The de termination of such questions must be left to some agency of the city. And, as was said by Mr. Justice Moore in the Love Case (applying the language to the commission):
“Under such circumstances, what can be more reasonable than to lodge the power of deciding when and where one may occupy this public space in one having sufficient intelligence and so possessing the confidence of his fellow citizens that they have placed him at the head of the municipal government?”
In Huston v. City of Des Moines, supra, the ordinance in question contained a provision quite similar to that in section 2. It provided for the form of the application and that when presented to the city clerk he should refer it to the superintendent of public safety, “who, at the next regular meeting of the council * * * shall present the same to the council with his recommendation thereon,” and that the council might grant the application as presented, or grant it with modifications, or deny it. The discretion imposed was held to be within the power conferred. In Ex parte Dickey, supra, the validity of an ordinance regulating “jitney busses” was in question. The court very carefully distinguishes between vocations which do not involve the use of public property and those requiring the use of the public streets. It is said:
“But when a citizen claims a private right in public property, such as a street or park, a different situation is presented. * * * Such, rights are in the nature of concessions by the public, wherefore the legislature may give or withhold them at its pleasure. It may give them for some purposes and withhold them for others and, in the case of those given, it may upon considerations of character, quality and circumstances, discriminate, permitting some things of a general class or nature to be done and refusing to permit others of the same general class to be done, or extending the privilege to some persons and denying it to others because of differences of character or capacity.”
The cases relied on by the trial court (Devereaux v. Genesee Township Board, 211 Mich. 38; City of Portland v. Traynor, 94 Or. 418 [183 Pac. 933, 6 A. L. R. 1410]; Makris v. Superior Court, 113 Wash. 296 [193 Pac. 845, 12 A. L. R. 1428]; State v. Mahner, 43 La. Ann. 496 [9 South. 480]; County of Los Angeles v. Hollywood Cemetery Ass’n, 124 Cal. 344 [57 Pac. 153, 71 Am. St. Rep. 75]; Yick Wo v. Hopkins, 118 U. S. 356 [6 Sup. Ct. 1064]; City of Seattle v. Gibson, 96 Wash. 425 [165 Pac. 109]; Garrabad v. Dering, 84 Wis. 585 [54 N. W. 1104, 19 L. R. A. 858, 36 Am. St. Rep. 948]), are not, in our opinion, controlling. The ordinances there considered were all regulatory of the classes of business which may be engaged in as a matter of right, to which, as already stated, a different rule applies. The Devereaux Case involved an ordinance providing for the issuing of permits “to public billiard and pool rooms, dance halls, bowling alleys and soft drink emporiums;” in the Traynor Case the subject of attempted regulation was “a food establishment or soft drink establishment;” the Makris Case involved the regulation of the sale of candy and soft drinks; in the Mahner Case it was sought to regulate certain dairies within the limits of the city; the Hollywood Case involved the right to establish cemeteries without the consent of the boards of supervisors; the Yick Wo Case, the regulation of laundries; the Garrabad Case was similar to Matter of Frazee, supra; and the Seattle Case reviewed an ordinance for the licensing of druggists.
Two other cases specially relied on by plaintiffs are Smith v. Hosford, 106 Kan. 363 (187 Pac. 685), and Cicero Lumber Co. v. Town of Cicero, 176 Ill. 9 (51 N. E. 758, 42 L. R. A. 696, 68 Am. St. Rep. 155). The Smith Case involved the grant of a permit to build a garage, the Cicero Case a prohibition to use certain streets by certain classes of vehicles.
In the annotation following Makris v. Superior Court, 12 A. L. R. 1435, the writer says:
“The validity of the grant of discretion depends largely upon the nature of the business or thing with respect to which it is to be exercised, and as to whether or not the proper regulation and control thereof require that a! discretion be vested in one or more public officials in order properly to control the conduct of the business, or the use, etc., of the article or thing in question.
“It should also be remembered that the fact that a court has laid down one rule in one case, as, for instance, than a municipal ordinance granting arbitrary and uncontrolled discretion to city officials as to the granting of licenses or permits to carry on what is generally regarded as a useful and ordinarily lawful business is invalid does not necessarily preclude the reaching of a contrary conclusion as to the validity of a grant of arbitrary power with respect to the licensing of a business such as dealing in intoxicating liquors, the right to carry on which is generally regarded as a mere privilege, subject to arbitrary control or absolute prohibition.”
Section 3 provides for an annual license fee of $25 for the first taxicab and $10 for each other. These are said to be “unjust, unreasonable and discriminatory;” that they “are not for the purpose of regulation, but are for the purpose of revenue.” Such fees may include the cost of issuing the license, the cost of inspection and any expense incident to a reasonable supervision of the use of the streets by taxicabs. In fixing them, consideration may also be given to any consequences likely to subject the city to cost by reason of their use for the purpose permitted. We agree with the trial court that the fees fixed are not so large as to be subject to the objections stated. Vernor v. Secretary of State, 179 Mich. 157 (Ann. Cas. 1915D, 128); City of Grand Rapids v. Braudy, supra; People v. Grant, 157 Mich. 24, and cases cited; Huston v. City of Des Moines, supra.
Subsection (b) of section 5 makes it unlawful for any person “To procure or transport or to aid or abet in the procuring or transporting of any intoxicating liquor.” It was doubtless the intention to limit this provision to the owner or driver of the taxicab, but such intent is not so clearly expressed as to permit its enforcement as a penal provision.
Subsection (c) of this section makes it unlawful:
“To allow any taxicab to be used for immoral purposes, or to procure or aid in procuring any woman or women for immoral purposes, or to allow women in any taxicab while the same is at any stand or upon any street waiting for customers.”
The latter part of this subsection is so clearly an invasion of private rights that it cannot stand.
Subsection (f) of this section provides for the furnishing of an indemnity bond in the sum of $5,000. Such requirement is clearly within the power of the city authorities. City of Grand Rapids v. Braudy, supra.
Section 14 provides for the punishment of any person refusing to pay his fare after having received the service. This is clearly in violation of section 20, article 2, of the Constitution, which reads, in part, as follows:
“No person shall be imprisoned for debt arising out of, or founded on contract, express or implied, except in cases of fraud or breach of trust." * * *
The provision does not attempt to limit the punishment to the exception which we have italicized. This the legislature very carefully did in the act for the protection of hotel keepers (2 Comp. Laws 1915, § 6968). This section may not be enforced.
Section 18 provides that violations of the ordinance shall be deemed misdemeanors and may be punished by “a fine not to exceed $500 and costs of prosecution or imprisonment in the common jail of Kent county for a period of not more than ninety days, or both,” in the discretion of the court. The maximum fine and punishment provided for is said to be unreasonable. We do not think so. It is within the limit permitted by the statute. 1 Comp. Laws 1915, § 3307, subd. e. There is no presumption that an unreasonable penalty will be imposed for a violation of any of the provisions of the ordinance. Individual cases may be disposed of as they arise. It is said that the provision as to costs is unauthorized .under the statute. While the power herein exercised by the city flows from the Constitution, and not from the statute, we feel constrained to agree with counsel for plaintiffs that costs may not be imposed. The statute does not permit it and the Constitution merely provides for reasonable control. We think the statute determinative of the penalty which may be imposed under the ordinance.
The title is attacked because the provision for a penalty contained in section 18 is not included in it. In People v. Wagner, 86 Mich. 594, 597 (13 L. R. A. 286, 24 Am. St. Rep. 141), it was held—
“that the constitutional provisions relating to the title of laws passed by the legislature do not apply to ordinances enacted by a common council of a city.”
We think the title sufficient. See 28 Cyc. p. 378.
Except as herein pointed out, we think the provisions of the ordinance are valid and enforceable. The sections or parts of sections which are invalid are distinctly separable from the remainder. Those held valid constitute in themselves a complete enactment, and may be enforced. City of Detroit v. Railway Co., 95 Mich. 456 (20 L. R. A. 79, 35 Am. St. Rep. 580); People v. Armstrong, 73 Mich. 288 (2 L. R. A. 721, 16 Am. St. Rep. 578); 28 Cyc. p. 372.
The following cases in which ordinances containing somewhat similar provisions were considered will be found instructive: Ex parte Counts, 39 Nev. 61 (153 Pac. 93); Hazelton v. City of Atlanta, 147 Ga. 207 (93 S. E. 202); Hadfield v. Lundin, supra; Commonwealth v. Slocum, 230 Mass. 180 (119 N, E. 687); City of Memphis v. State, supra; Ex parte Cardinal, 170 Cal. 519 (150 Pac. 348, L. R. A. 1915F, 850); State v. Howell, 85 Wash. 294 (147 Pac. 1159, Ann. Cas. 1916A, 1231); Greene v. City of San Antonio, supra; Ex parte Dickey, supra; Auto Transit Co. v. City of Fort Worth (Tex. Civ. App.), 182 S. W. 685; Wilson v. Eureka City, 173 U. S. 32 (19 Sup. Ct. 317); Mehlos v. City of Milwaukee, 156 Wis. 591 (146 N. W. 882, 51 L. R. A. [N. S.] 1009, Ann. Cas. 1915C, 1102).
The decree rendered is reversed and set aside and the bill of complaint dismissed, but without costs.
Fellows, C. J., and Claek, Bied, Mooee, and Steeee, JJ., concurred. Wiest, J., concurred in the result.
The late Justice Stone took no part in this decision.
validity of excise or license tax upon automobiles, see 37 L. R. A. (N. S.) 440; 52 L. R. A. (N. S.) 949; L. R. A. 1915D, 322.
As to whether person or company operating passenger automobile is a common carrier, see note in L. R. A. 1918F, 468.
On power of municipalities to license and regulate vehicles operating upon streets, see note in 45 L. R. A. (N. S.) 1153. | [
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Bird, J.
Market street, in the village of Orion, extends north and south. Plaintiff lives on the west side of Market street. Defendant constructed its double track line on the westerly side of Market street in front of plaintiff’s house, and at the same time constructed a planked crossing 16 feet wide over its tracks, so that plaintiff could drive from the street onto his own premises. On May 31, 1916, defendant’s servants were repairing this planked crossing. When plaintiff drove out of his yard in the morning with his automobile to go to his farm he used the planked crossing a little to the north of the one in question. When he returned at night this crossing was also torn up so he passed on to his own crossing. Before driving onto the east track he looked and saw that the crossing had been smoothed down and had the appear anee of having been repaired. When he got onto it, and before he had passed the “devil’s strip,” he discovered one piece of planking, 8 feet long, was out from between the rails of the west track. He directed his front wheels away from the hole, but his rear ones dropped into it, and at the same time his front wheels ran up onto a pile of rubbish left near the traveled way and his machine stalled. Coincident with this, one of defendant’s freight cars came around the curve just north of his place and ran into and badly damaged his automobile. It cost plaintiff $234 to get it repaired and he recovered this sum in the Oakland circuit court.
The sole question raised by defendant is the failure ■of the trial court to direct a verdict for defendant on the ground that plaintiff was guilty of contributory 'negligence, as a matter of law. Defendant argues that plaintiff was familiar with the situation; that he knew that repairs were being made at his crossing, and had he looked as he should before going- onto the track, he would have avoided the hole and the collision. The plaintiff replies that while he knew repairs were going on it was nearly night and the crossing had the appearance of having been finished, or, at least, smoothed down. That the crossing he went over in the morning was torn up and he had no other way to reach his premises. That he looked as he was driving on the east track, but did not discover it until he had got onto the track; that when he did discover it it was too late to stop his automobile. That he looked to the south and also to the north before driving on to see if a car was approaching. He could see only three or four rods to the north because the track turned abruptly to the west, and the bend was skirted with willow trees whose branches extended out to the track, which interfered with his view, and that the •car came around the bend from the north and collided with his car without giving any warning of its approach.
The conduct of plaintiff on this occasion must be measured by what the ordinarily prudent man would do under like circumstances. Taking plaintiff’s conduct in its entirety and the considerations which influenced it, the court cannot say it was, as a matter of law, negligent. He was approaching, and attempting to get onto his premises, in the only way that was open. It was night,, or nearly so. The crossing had been smoothed off and had the appearance of being finished. Whether, under these and all the other circumstances, he should have observed the missing plank and the approaching car, are questions involving many considerations. We think the trial court rightly determined that the question of plaintiff’s negligence was one for the jury.
The judgment is affirmed.
Fellows, C. J., and Wiest, McDonald, Clark, Sharpe, Moore, and Steere, JJ., concurred.
driving across street railway where view of approaching car is obstructed, as contributory negligence, see note in 32 L. R. A. (N. S.) 266. | [
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Fellows, C. J.
The plaintiff was organized by the consolidation of several laundry companies. Defendant was in its employ from its organization until January 15, 1921. He had worked for the predecessors of plaintiff. He was employed by plaintiff as a driver and had as his territory route 8. He collected the soiled clothes from customers and from agencies of plaintiff located in his territory, brought the packages to the laundry and returned the laundered articles, and collected and turned in the pay for the work. He solicited business and was notified and given the business of all persons in his territory who by telephone, through solicitors sent out by plaintiff, or otherwise requested plaintiff to do their work. He was paid a salary and commission on the business in his territory. Each parcel brought in by him had a slip provided in blank by the company which was filled out and attached to the package, giving the name and address of the customer. From this and other sources a list of the customers in his route was made up by plaintiff. Plaintiff also had a “master route book” made up of all the routes. These lists were kept secret by plaintiff and are a valuable asset.
On January 15, 1921, defendant quit the employ of ■the plaintiff and accepted employment with one of plaintiff’s competitors. Shortly thereafter this bill was filed seeking to restrain defendant from calling for or delivering laundered or unlaundered goods of plaintiff’s customers in route 8 or from soliciting patronage for his new employer in that territory or from divulging to plaintiff’s rival in business information gained by defendant from plaintiff’s route lists. The case was promptly tried on its merits and the bill was dismissed.
The testimony does not establish that plaintiff furnished defendant a list of the customers on his route or that defendant obtained or had a copy of the route list made by plaintiff of route 8, or that defendant had any knowledge that a master route book existed. When defendant commenced to work on route 8 the business there was small. At the time the parties severed their relations the route furnished several hundred dollars’ worth of business weekly. The testimony fairly discloses that this was due to the character of plaintiff’s work, combined with the personality of the driver and his success in soliciting and keeping business. Plaintiff’s counsel contends for the broad doctrine that the plaintiff having taken all necessary precautions to keep its lists secret, and the defendant having obtained information as to whom plaintiff’s customers were through his employment, such information so received was a trade secret of great value to plaintiff, was, in fact, property of great value which may and should be protected by the injunction of a court of equity. Plaintiff’s counsel can not contend, and we do not understand him to contend, that this court has not spoken on the question here involved in the case to which we shall presently refer. He has shown great diligence in bringing to our attention cases from other jurisdictions which sustain his contention, and he insists that the great weight of authority supports his claim and that we should overrule or at least modify our former holding. On the other hand defendant’s counsel calls our attention to holdings from other States in accordance with our holding; other cases are to be found along the same line. We shall not discuss the authorities from other jurisdictions as we are satisfied that the question is foreclosed in this' jurisdiction and unless we disregard the doctrine of stare decisis the decree must be affirmed.
In the case of Grand Union Tea Co. v. Dodds, 164 Mich. 50 (31 L. R. A. [N. S.] 260), the method of doing business was quite similar to that employed in the instant case. This court there recognized the property right of the employer in his lists of customers which had been given to and used by the employee, and inhibited by injunction the use thereof or the use of a copy surreptitiously obtained by the employee for the benefit of a competitor and required the employee to furnish the employer with lists , he had withheld. But upon the question here involved we declined to restrain the defendant from earning a living by soliciting business from his former employer’s customers. Mr. Justice Hooker, who wrote for the court, said:
“We are of the opinion, however, that he cannot be restrained from selling his commodities, for himself or for any employer, in any part of the city, or to any person, so long as he does not use any property belonging to the complainant, or copies thereof that were surreptitiously made.”
The relief here sought is the relief denied in the Dodds Case. The cases can not be distinguished. Unless we overrule that case plaintiff is not entitled to the decree here asked. We are not disposed to overrule it. We think it sound in principle, and that it protects the property rights of the employer without destroying the right of the employee to pursue a lawful occupation.
We are not here dealing with a contract made pursuant to the provisions of Act No. 171, Pub. Acts 1917, as the defendant in the instant case declined to enter into such a contract.
The decree of the court below will be affirmed, with costs to defendant.
Wiest, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.
The late Justice Stone took no part in this decision. | [
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Sharpe, J.
The plaintiff is the son of Adam Alt-father and Augusta Altfather. The father died on February 14,1918. The mother was committed to the Wayne county insane asylum at Eloise on December 6,1897. She was afterwards transferred to the Michigan farm colony for epileptics at Wahjamega. Soon after such commitment, Pauline Altfather, a cousin of Adam, came to live at his home and thereafter was apparently recognized and treated as his wife. The plaintiff and his two sisters, Anna and Helena, are children of Adam and Augusta. They were minors at the time Pauline came to the home. They resided there until their marriage.
It is plaintiff’s claim- that his father was in poor health and that he and his sisters began to work for others at an early age; that their earnings were turned over to' Pauline, who handled all moneys and provided for the home and its inmates. In his' testimony he speaks of Pauline as his “stepmother.” In 1904 a house and lot on 31st street in Detroit was purchased under contract from William J. Gray, trustee, the father being named as vendee therein. He and Pauline resided there until his death. In April, 1908, Adam borrowed $700 from Dr. Charles Gottman. With this money the land contract was paid up and the deed taken in Dr. Gottman’s name as security for the loan. It is plaintiff’s claim that his earnings and those of his sister Anna were used to repay this loan. On May 29, 1911, Dr. Gottman conveyed the property to Adam and Pauline, “to be held as joint tenants and not as tenants in common.” On November 1, 1913, Adam executed a quit-claim deed of the premises to Pauline. On November 6, 1919, Pauline conveyed the property to the defendants Michael Novack and Mary Novack, his wife, who immediately entered into possession thereof. While the consideration expressed in this deed is one dollar, it is their claim that they paid $3,500 therefor. The bill alleges that Pauline was induced to sign this deed by the defendant Augusta Bloom. The bill alleges that after Adam’s death the sisters of plaintiff were about “to take proceedings to secure their rights in the said estate” and that plaintiff at the request of Pauline induced them to refrain from doing so, on her promise to make a will devising and bequeathing all her property to him and on his promise to divide it equally among the three of them. On February 28, 1918, fourteen days after Adam’s death, Pauline executed a will, apparently pursuant to this agreement, whereby she devised and bequeathed all her estate to the plaintiff, subject to a bequest of five dollars to each of his sisters. After his father’s death in 1918, plaintiff continued to reside in the home with Pauline until August 30, 1919, when he married. He and his wife remained there about a month and then took rooms out Woodward avenue nearer to his work at the Ford plant. Prior to this, and in 1916, plaintiff purchased a lot in the Taylor subdivision in Detroit, paying $650 therefor. Being desirous of purchasing an automobile, in September of that year he borrowed $250 of Pauline and deeded this lot to her as security for such loan. Plaintiff claims to have paid back this loan except $50 before he left the home in 1919. About 20 years before her death, Pauline took out a fraternal policy of insurance in which the plaintiff was named as a beneficiary. It provided for a death benefit of $500. Plaintiff claims to have paid the assessments on this policy for many years. The defendant Augusta Bloom lived near the Altfather home. It is her claim that she rendered considerable service to Pauline and in the home and that after plaintiff left, and in November, 1919, Pauline asked and was granted permission to live with her; that Pauline was then ill, had fainting spells, and needed attention; that she offered to and did turn over to Mrs. Bloom the fraternal insurance certificate, the proceeds to be used in paying the expenses of Pauline’s last illness and burial. These amounted to $424.40, some of which had been paid. Pauline died on January 25, 1920. On January 10th of that year, she conveyed the lot which had been deeded by plaintiff to her to Mrs. Bloom. It is the claim of Mrs. Bloom that this conveyance was made in consideration of the service she had rendered Pauline and her promise to “take care of her grave” so long as she lived. This conveyance was subject to a contract for the sale of the lot executed by Pauline in October, 1919, to Charles Sternberger. The consideration named was $1,200. Three hundred and ten dollars had been paid prior to the death of Pauline and after her death he paid Mrs. Bloom $500 in cash and conveyed to her his equity in another lot and received a deed therefor.
We have stated the claims of the parties as disclosed by the bill of complaint and the testimony submitted at the hearing. The relief sought is:
(1) An accounting by Augusta Bloom of all money and property of Pauline that has come into her hands, “and requiring her to surrender up the same to this plaintiff.”
(2) An injunction restraining her from claiming or receiving the death benefit under the fraternal certificate “until the true ownership of the same shall be judicially determined by this court.”
(3) The setting aside of the deed of the home to the Novacks and “that same may be decreed to be the property of this plaintiff * * * in trust for himself-and his two sisters” and the deed to Mrs. Bloom of the other lot and that it be decreed to be the property of plaintiff.
We consider these claims in the inverse order to that stated. The trial court found:
“I have heard no attack made upon Novack’s title as being fraudulently secured. No one has even intimated that he was not an innocent purchaser for value.”
It is plaintiff’s claim that when the father, Adam, was named as vendee in the land contract executed by Mr. Gray and the family moved therein the premises became a homestead and subject to the law applicable thereto; that as the family continued to reside thereon, the subsequent conveyances, in none of which Augusta Altfather, the wife of Adam, joined, were ineffectual to transfer the property and void. He relies on McKee v. Wilcox, 11 Mich. 358 (83 Am. Dec. 743); H. Stern, Jr., & Bros. Co. v. Wing, 135 Mich. 331, and Allen v. Crane, 152 Mich. 380 (16 L. R. A. [N. S.] 947), to support this claim. The widow of Adam is not here asking for relief against these transfers. The plaintiff and his sisters had knowledge of them when made. Proceedings to set them aside were contemplated by them soon after the father’s death in 1918. Reliance was placed on the promise of Pauline to protect plaintiff’s rights in a will which she promised to and did make. Plaintiff knew that Pauline was regarded as Adam’s wife. He also knew that in the deed from Adam to Pauline, executed In 1913, he was described as her husband. It would be a grave injustice to now permit him to attack the conveyance to the Novacks, for which they apparently have paid full value, for the reason stated. The record of conveyances showed a perfect title in Pauline at the time the deed was made and the Novacks pur chased in reliance thereon. We think plaintiff has no standing in a court of equity to attack the Novack conveyance.
Mr. Sternberger is not a party to this suit and his interest in the lot deeded to him by Mrs. Bloom cannot be adjudicated.
It appears that Adam was named as the beneficiary in the fraternal insurance policy when first issued. On December 28, 1918, it was surrendered and a new one issued in which plaintiff was named as beneficiary. On November 18, 1919, this policy was surrendered and a new one issued to Augusta Bloom. Neither the policy nor the by-laws of the company appear in the record. The grand secretary testified:
“Under the by-laws of our organization, the person is permitted to change the beneficiary at will any time they shall so desire.”
Plaintiff claims that blood relatives only could be named as beneficiaries unless it appeared that the member had no such relative (2 Comp. Laws 1915, § 9393). On this record we feel unable to determine the merits of the claim made by plaintiff. We have not the policy before us and cannot assume, as does plaintiff’s counsel in his argument, that it was issued pursuant to the provisions of this statute. It would appear that its purpose was to provide for the expenses of the last illness and burial of the member. The expenses thereof almost equal the amount payable under the policy. We feel unable on this record to make any decree .involving the rights which have accrued thereunder.
Plaintiff as an individual is not entitled to an accounting on the part of Mrs. Bloom of any moneys in her hands belonging to Pauline at the time of her death. Such moneys would clearly belong to Pauline’s estate and be subject to the provisions of the will made by her, which has been duly admitted to pro bate. The record does not disclose what, if any, further proceedings have been taken to administer the estate.
We agree with the trial court that the record affords no ground for granting equitable relief to plaintiff. The decree dismissing the bill of complaint is affirmed. The defendants not having filed a brief in this court, no costs are allowed.
Fellows, C. J., and Wiest, McDonald, Clark, Bird, Moore, and Steere, JJ., concurred.
rights of child in parent’s homestead, generally, see note in 56 L. R. A. 33. | [
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Bird, J.
This controversy arose over a contract which was made by the following telegrams:
“Delaware, Ohio.
Aug. 28, 1918.
“McClintick & Co.,
“Evansville, Ind.
“Wire price of melons, twenty pound variety.
“Dinovo Fruit Co.”
“Evansville, Ind.
Aug. 28, 1918.
“Dinovo Fruit Co.,
“Delaware, Ohio.
“Car between 18 and 20 average 35c.
“McClintick & Co."
“Delaware, Ohio,
Aug. 28, 1918.
“McClintick & Co.,
“Evansville, Ind.
“Ship car at your offer, if good stock.
“Dinovo Fruit Co."
“Evansville, Ind.,
Aug. 28, 1918.
“Dinovo Fruit Co.,
“Delaware, Ohio.
"“Will ship the car.
“McClintick & Co."
The melons were shipped and arrived at Delaware in due season. Defendant consigned the melons to itself, indorsed the bill of lading, attached it to a draft for $603.75 and sent it to the bank at Delaware with instructions to notify plaintiff. It also provided for inspection of the melons before acceptance and payment. Upon the arrival of the melons plaintiff went to the car arid examined them. The top tier seemed to be satisfactory and no further examination was made. Plaintiff paid the draft and secured the bill of lading. Two days later when they were unloaded plaintiff claims that they found a large portion of them were green and unfit for use. Notwithstanding this it sold a quantity of them, receiving therefor $187.50. The balance of them it claims was a total loss. It began this suit to recover its damages.
Counsel were unable to agree upon the trial whether the contract contained an express or an implied warranty as to quality. The plaintiff insisted that the contract contained an express warranty, while the defendant insisted that the warranty was an implied one. The trial court was of the opinion that the warranty was an express one and so instructed the jury. This is complained of as error and it is practically the only question of importance in the case.
If we are going to hold that this contract contained an express warranty as to quality, we should be able to point out, with some certainty, the particular statement or affirmation of defendant which makes it so. Neither in defendant’s first message nor second one is there any statement or affirmation with reference to quality. Plaintiff adds to its second telegram that “if good stock” to ship the car. Defendant replies, “will ship car,” but makes no reference to quality. We, therefore, are to deal with a contract wherein defendant makes no express statement or affirmation with reference to the quality of the fruit. So it is not a question of the construction of the language used but whether anything was said or done which raised an express warranty on defendant’s part. But plaintiff’s counsel argue that when defendant shipped the car in response to plaintiff’s instructions to ship “if good stock,” an express warranty arose in regard to the quality. We think this is going further than the language of the contract will permit. The effect of this was no different than as though plaintiff had wired defendant to send it a car of melons “if good stock” and defendant had sent the car without making any reply. It requires something more than this to create an express warranty.
We are of the opinion, however, that when defendant shipped the car of melons in response to the order, an implied warranty arose that the melons should be of the kind plaintiff ordered, namely — “good stock.” This being true, it was the duty of plaintiff to inspect the melons upon their arrival, and if in accordance with the contract it was its duty to accept and pay for them. If they were not “good stock” then it had a right to. reject them and advise the defendant of the fact. Farrington v. Smith, 77 Mich. 550; Talbot Paving Co. v. Gorman, 103 Mich. 403 (27 L. R. A. 96); Williams v. Robb, 104 Mich. 242; Buick Motor Co. v. Manufacturing Co., 150 Mich. 118; Remy, Schmidt & Pleissner v. Healy, 161 Mich. 266 (29 L. R. A. [N. S.] 139, 21 Ann. Cas. 74); Columbus, etc., Iron Co. v. See, 169 Mich. 661; Gill & Co. v. Gas Light Co,, 172 Mich. 295.
But it is argued that the quality of the melons was not discovered until they were unloaded a day or two after acceptance and payment. Plaintiff was given permission to inspect the melons before acceptance and payment. If they were not inspected sufficiently before acceptance to discover the quality it was Dinovo’s fault, due to his disinclination to dig down to the bottom of the car. But this question is not very important in this case because after plaintiff was fully advised as to the defects it sold a portion of the melons, receiving therefor $187.50. This plaintiff had no right to do unless it intended to keep and pay the contract price therefor. In Farrington v. Smith, supra, this question was considered in a case where certain teas had been sold after knowledge that they were not in accordance with the sample from which they were purchased. This court said:
“The defendant had the duty laid on him of finding out, with no unreasonable delay, the quality of the teas. As soon as complaints arose it was his duty to investigate at once, and to make up his mind what he would do. He had no right to offer them for sale thereafter, and at the same time repudiate the bargain. What he sold before being led to suspicion would not affirm the purchase for the remainder; but it was his business to make no further sales except on his own account, and it was his duty to notify plaintiffs at once of his decision.”
The proofs in the present case show that plaintiff had ample opportunity to inspect the melons before accepting and paying for them. If it made only a partial inspection, it was its own fault. It certainly had no right to repudiate its bargain after it had sold a portion of the melons with knowledge that the balance of them were defective.
The judgment must be reversed and a new trial ordered, with costs to defendant.
Steere, C. J., and Moore, Wiest, Fellows, Stone, Clark, and Sharpe, JJ., concurred. | [
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Moore, J.
Plaintiff is a resident of Montana. He sold to defendant, a resident of Clinton county, Michigan, 50 head of cows at $75 per head, f. o. b. Columbus, Montana. The plaintiff sued defendant and recovered a judgment. The case is brought here by writ of error.
The case calls for the construction of a letter and a telegram. The letter reads:
“Heart Bar L Ranch,
Fishtail, Montana,
January 1, 1920.
“Mr. W. H. Winfield,
“Shepardsville, Mich.
_ “Dear Mr. Winfield: The cows which we advertised are high-grade, four-year-old, dehorned Herefords, bred to registered bulls for spring calves. Due to a bad summer and a very early and severe winter, we think it well to cut down somewhat in the number of cattle that we will run, and so offer these two cars. The cattle are all right in every way, and are sold through no fault. They are thin now, but not poor, and can be shipped anywhere with safety. In good condition I believe that they will weigh about 1,200 pounds. These cows are of unusual quality and breeding, as they are the same breeding and brand that raised the grand champion carload of fat steers at the 1918 International. We are asking $75.00 per head for these cows f. o. b. Columbus, Montana, which is our railroad station on the Northern Pacific R. R. Considering the quality and breeding, and the fact that they should double their number in a few months, we consider the price very reasonable.
“Yours truly,
“Ralph W. Selkirk.”
The telegram reads:
“Shepardsville, Mich. 15.—
“To Ralph Selkirk,
“Columbus, Montana.
“Order cars. If you have to use common stock cars, pad cracks up and bed good. Am trying to get cattle insured while in transit. Can’t. Will wire fifty dollars tomorrow night. Draw on me through Bank of Ida here. Billing will follow. Do not load heavy.
“W. H. Winfield.”
Because of the claim of appellant which will be stated more at length later, we think it desirable to quote portions of the charge to the jury as. follows:
“The defendant claims that the cattle which he received were not the kind of cattle which he expected that he was buying; and he claims further that in that letter the plaintiff in this case represented to him, or made some statements which he relied upon, and warranted to him, that the cattle would be of certain size, or within certain size, within reasonable range. No particular number, nor no particular weight, but they should be reasonably within certain weights; and he claims when they arrived they were not of that weight; and he also claims that at the time they were loaded on the cars at Columbus, Montana, they were not of that weight; and he claims that by reason of that, and this warranty, which he claims this letter contains, he has suffered damages as the evidence here shows. That is practically the issue, boiled down, in this case, as I will point out to you later on. * * *
“The defendant claims that he is entitled to recoup damages growing out of this same contract, whatever you gentlemen would find his damages to be. And if you find that he has suffered some damages under the rule I will give you — you could set off those damages. * * *
“Now in the first place, gentlemen of the jury, as' I understand it, there is no issue made upon the question of the physical condition of these cattle. * * * Defendant makes no claim as to the health of the cattle, or as to the breeding; but the only issue is as to the size; and he claims that 'in this letter there was a warranty that these cattle were to be of a certain weight. Now the only thing in this case upon which the warranty can rest is this letter; and the court holds that the statements made that the cows advertised are ‘high grade four-year-old dehorned Herefords, bred of registered bulls for spring calves/ is merely a representation as to the breeding. There is no 'issue upon the condition of the weather there and the bad summer as a reason why they should sell. There is a statement that ‘the cattle are all right in every way and are sold through no fault. They are thin, but not poor, and can be shipped anywhere with safety. In good condition, I believe that they will weigh about 1,200 pounds/ I will refer to this statement a moment later. ‘These cows are of unusual quality and breeding/ The court holds that that is merely, if anything, a representation — or, if it would be a warranty, it would be a warranty as to the quality and breeding of the cattle; not as to size.
“Now before you can hold the plaintiff liable upon a warranty, the burden is upon the defendant here to show that the statements made in that letter are_ positive statements, an affirmation of fact, not of opinion, as to the quality and condition of the cattle sold, made by the seller, and that they were in the course of negotiations, and naturally and fairly importing that the plaintiff intended to bind himself to the truth of them, and that they were understood and relied upon by the defendant here, the buyer; and that this induced him to buy. You must find those facts before you can find these statements in this letter to constitute a warranty.
“Now the statements ‘in good condition I believe that they will weigh about 1,200 pounds,’ in and of itself is a mere expression of opinion, and that plaintiff would not be liable upon that alone. That is merely his opinion. And if you find that he honestly and fairly, intending to tell the truth, expressed that opinion, he could not be held liable in this case upon that question of_ weight. But the only question I submit to you is this: Were the statements made that ‘the cattle are all right in every way,’ — does that constitute a warranty upon the question of the weight of these cattle? * * * Was it fairly within the contemplation of both of these parties, and not one of them — was it fairly within the contemplation of both of these parties, and did the plaintiff here intend to warrant when he said that the cattle are all right in every way, did he intend to warrant — taken in connection with the other statements that those cattle at that time could later on be in condition so that they would weigh that, much? Now, unless you are able to find that to be the fact, the defendant here would not be entitled to recover any damages by way of recoupment in set-off against the claim of the plaintiff. So that is the question for you to determine. Was there a warranty made? Was it within the contemplation of both of these parties • — not at Shepardsville when the cattle were unloaded— but was there a warranty made and was it untrue at the time these cows were placed upon board of the train in Montana? That was the place of delivery. Under this contract, delivery in Montana f. o. b. Columbus, was delivery to defendant in this case. It narrows down to a very narrow issue in this case, gentlemen, under this letter. What was the contemplation of the parties at the time this stock was purchased? Was there a warranty made, under the rules I have given you? And does that warranty apply to size and weight of the cattle or does it apply to something else?
“If you find, and the defendant has satisfied you by a fair preponderance of the evidence, that that was a warranty, and that it had reference to the weight of the cattle, and that by reason of it — that it is not true —and that by reason of that he has suffered damages, then you will take up the question of damages. If you find that it is not such a warranty, then he would not be entitled to recover any damages whatever in set-off against the claim of the plaintiff. * * *
“Now if you find that the defendant has established the fact that there was a warranty, and that it was fairly within the contemplation of the parties that that warranty was a warranty as to the weight of these cattle in Montana, and that there has been a breach of that warranty, then you will take up the question of what damages has the defendant suffered by reason of the breach of that warranty, if you find that there was such a warranty. And the measure of damages would be what would be the difference, in value of these cattle from what they were and what they would have been if they had been as warranted or represented by the plaintiff. If you find that the defendant has suffered some damage, whatever that damage is, then you will take that amount and deduct it from the amount which the plaintiff is entitled to recover, or from the established claim of the plaintiff, and deduct that amount from the plaintiff’s claim, and your verdict would be, We find for the plaintiff and assess his damages at so much.”
Counsel say:
“The defendant makes no claim regarding the representations in the letter of January 1, 1920, so far as the representations relate to the grade, age or breeding of the cattle. The defendant insists that the letter of January 1, 1920, consists of statements of material facts furnished the defendant in response to the specific inquiry contained in his letter of December 20, 1919. Defendant had no opportunity for inspecting the cattle in question, but was obliged to rely upon statements made to him by the plaintiff in answer to his letter of inquiry. * * *
“The trial court in instructing the jury, limited the deliberations of the jury to the clause, ‘the cattle are all right in every way,’ contained in the letter of January 1, 1920, and expressly withheld from the jury the statement ‘in good condition I believe they will weigh 1,200 pounds,’ characterizing the last quoted statement as a mere expression of opinion and instructed the jury that plaintiff would not be liable upon this statement alone. It is submitted that the trial court erred in so instructing the jury. It is submitted that the trial court should have instructed the jury to take the letter of January 1, 1920, and consider it in all its parts, and taking the letter as a whole should have considered' the testimony upon the question of the weight of the cattle and should have determined whether or not the plaintiff was guilty of a breach of warranty. * * *
“We believe the rule as stated in Mechem on Sales and other authorities should be applied in this case:
“ ‘The decisive! test has been, said to be whether the vendor assumes to assert a fact of which the buyer is ignorant, or merely states an opinion or judgment upon a matter of which the vendor has no special knowledge and on which the buyer may be expected also to have an opinion and to exercise his judgment. In the former case, there is a warranty, in the latter not.’ 2 Mechem on Sales, § 1243.”
It was the claim of the plaintiff and is now that:
“The contract in the case at bar was made by the letter of plaintiff of January 1, 1920, and the telegram in reply thereto from defendant. The construction of the language used in plaintiff’s letter was a question for the court, it being well settled that where there is no ambiguity in the terms of a written contract it is the province of the court and not of the jury to determine its meaning. Dudgeon v. Haggart, 17 Mich. 273; McKenzie v. Sykes, 47 Mich. 294; Wagner v. Egleston, 49 Mich. 218; Gage v. Meyers, 59 Mich. 800; Hayes v. Cummings, 99 Mich. 206; Wenzel v. Kieruj, 168 Mich. 92; Dowagiac Manfg. Co. v. Schneider, 181 Mich. 538; Cutler v. Spens, 191 Mich. 603; Township School Dist. of Wakefield v. MacRae, 198 Mich. 693.”
In view of what was done we do not need to decide whether the plaintiff is right in the contention that the judge should have construed the contract and held there was no warranty, and directed a verdict for the plaintiff. As a matter of fact the court left the case to the jury to decide whether there was a warranty or not.
It should not be overlooked that these animals were sold f. o. b. Columbus, Montana. There was testimony of a veterinary surgeon that on January 21, 1920, the cows weighed between 900 and 1,000 pounds on an average.
A reference to the charge of the court will show that the court, after mentioning certain expressions in the letter, said:
“And did the plaintiff here intend to warrant when he said that the cattle are all right in every way, did he intend to warrant — taken in connection with the other statements that those cattle at that time could later on be in condition so that they would weigh that much? Now, unless you are able to find that to be the fact, the defendant here would not be entitled to recover any damlages by way of recoupment in set-off against the claim of the plaintiff.”
A consideration of those portions of the charge we have quoted leads us to the conclusion that if any one has occasion to complain of the charge it is not the defendant.
Judgment is affirmed, with costs to the plaintiff.
Steere, C. J., and Wiest, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred. | [
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Clark, J.
Following personal service of summons with copy of the bill of complaint containing a petition for temporary alimony with notice of hearing, and after hearing thereof on April 24, 1920, William H. Bowman, defendant in the cause, was. ordered' to pay to the clerk of the Wayne circuit court as temporary alimony for the support of plaintiff, his wife, and their two children the sum of $20 per week in advance commencing with the date of the order, and he was also ordered to pay an attorney’s fee of $50. A certified copy of the order was served upon William H. Bowman personally at Detroit on April 30, 1920. On June 28, 1920, said defendant Bowman having paid nothing toward the weekly allowance nor the attorney’s fee, motion for attachment under the provision of Act No. 379, Pub. Acts 1913 (3 Comp. Laws 1915, § 11443 et seq.), was filed and order for attachment of the said defendant William H. Bowman sought, and denied. A motion to set aside the order denying the attachment was also denied.
We are asked to compel by mandamus the issuance of the attachment. As reasons for denial aforesaid the circuit judge returns:
“That the provisions of section 2 of Act No. 379 of the Michigan Public Acts of 1913, being section 11444 of the Michigan Compiled Laws of 1915, are directory merely and not mandatory, and should be so construed as to permit the circuit judge to exercise his discretion as to whether a writ of attachment to show cause should issue or not.”
The important sections of the act are:
“Section 1. In all suits for divorce and separate maintenance where an order or decree for the payment of temporary or perm-anent alimony has been made, and where the party, whether complainant or defendant, has appeared in person or by solicitor or has been personally served with process within the jurisdiction of the court making such order or decree for the payment of alimony, the court making such order or decree shall have power to punish by fine and imprisonment or both, any neglect or violation of said order, upon the petition of the party whose rights thereunder may have been impaired, impeded or prejudiced by such neglect or violation of said order.
“SEC. 2. When any decree or order shall have been made for the payment of temporary or permanent alimony to be paid in certain ^stipulated payments directed to be made in said order to the register of the court, and any of such payments shall be in default, the party prejudiced thereby may make a motion before the court making such order showing by the records in the register’s office that such default has been made, and thereupon the court shall forthwith issue an attachment to arrest such party in default and bring him immediately before the court to answer for such neglect.
“Sec. 3. No demand of any kind or notice of the making of the order for the payment of such alimony shall be necessary in the cases enumerated in the first section of this act.
“Sec. 4. When said attachment shall be issued it shall be executed by the sheriff of the county, or by any officer authorized to make such arrest, who shall arrest the party named therein and keep him in actual custody and bring him forthwith before the court issuing such attachment, and shall keep and detain him until the court shall make some further order in the premises.
“Sec. 5. The party arrested on such attachment shall be discharged therefrom upon executing and delivering to the register of the court issuing such attachment, a bond with two sufficient sureties in a penal sum to be fixed by the register, conditioned for the immediate and faithful performance of the terms of said order for the payment of alimony, or said party may be discharged from arrest by such other order in the premises as the court may enter therein after a full hearing thereon.”
“May” has sometimes been treated as mandatory, and “shall” in some cases has. been held to be permissive or directory. These words should be given that effect necessary to carry out the intention of the legislature under the ordinary rules of construction. See 5 L. R. A. (N. S.) 340; 36 Cyc. p. 1160; Freud v. Wayne Circuit Judge, 131 Mich. 606; Village of Durand v. Shiawassee County Sup'rs, 132 Mich. 448.
The title of the act “An act to facilitate the col lection of temporary- and permanent alimony ordered to be paid in suits for divorce” indicates a legislative intention that orders and decrees for payment of alimony should be enforced with less difficulty and with greater freedom from delays and impediments than had attended former methods. And the legislature sought to make its meaning plain by using with the words “shall issue” the adverb “forthwith” which is defined: — directly, immediately, without delay.
The words “shall, forthwith issue an attachment” must be held to be) mandatory.
That section 2, Act No. 379, Pub. Acts of 1913 (section 11444, 3 Comp. Laws of 1915),
“has been repealed by the repealing section of the judicature act (section 14465, 3 Comp. Laws 1915) by providing a method for the punishment of con-tempts inconsistent with that provided by the judicature act (being chapter 5 thereof) and section 12268 and those following of the Compiled Laws of 1915.”
We do not agree with this contention. Chapter 5 of the judicature act of 1915 (3 Comp. Laws 1915, § 12268 et seq.), provides, for proceedings for contempt. Act No. 379, Pub. Acts of 1913 (3 Comp. Laws 1915, § 11443 et seq.), is not strictly a statute respecting contempts. The purpose of the act was to provide a summary and effective method of enforcing the orders and decrees of courts respecting alimony. In Whitman v. Branstrom, 202 Mich. at page 462, it is said of the statute under consideration:
“It is apparent that this whole proceeding is a court proceeding, and not a matter that could be initiated, or heard before the circuit judge. The statute contemplates that the party is not yet in contempt, and could not be, under óur statutes and decisions, until he had had a hearing in court.”
See In re Merrill, 200 Mich. 249; Dwyer v. Wayne Circuit Judge, 197 Mich. 383; Oxford v. Berry, 204 Mich. 197; Ex parte Merrill, 245 Fed. 780.
That said act (Act No. 379, Pub. Acts 1913)
“is unconstitutional and in conflict with section 16 of article 2 of the State Constitution as depriving a party of his liberty without due process of law, and in conflict with section 10 of article 2 of the State Constitution as authorizing an order for arrest without any showing of probable cause under oath.”
There has been due process of law. The said defendant William H. Bowman was personally served at Detroit with summons, copy of the bill of complaint, petition for alimony and notice of hearing thereof. And. the plaintiff took the precaution of serving him with a certified copy of the order for payment of alimony.
Of a similar statute (section 13765, 3 Comp. Laws 1915) respecting the issuing of warrants by a judge of probate where the same objection was made, this court, In re Merrill, supra, said:
“There is therefore no force in the objection of the petitioner that said warrant was issued without an order to show cause, or a preliminary hearing. Petitioner was well advised of every step in the proceedings antecedent to the issuance of said warrant. He contested the making of the order, requiring the payment of the trust fund, in the probate court, in the circuit court, and in this court, and after the remittiturs were filed in the probate court, a demand was made upon him to comply with said order. This he refused to do in wilful defiance of the law as it had been established after the most exhaustive examination in the court of last resort in this State. In the light of the history of this litigation, the contention of the petitioner that the statute and the proceedings had thereunder do not afford petitioner equal protection of the law and is not due process of law within the 14th Amendment of the Constitution of the United States, is untenable. Cooley on Constitutional Limita tions (7th Ed.), p. 496; Miedreich v. Lauenstein, 232 U. S. 236 (34 Sup Ct. 309).”
And from an opinion in the same cause, Ex parte Merrill, 245 Fed. 780, we quote with approval:
“The arguments of petitioner, based on the contention that his imprisonment is without due process of law and contrary to the United States Constitution, are necessarily founded upon the idea that the issuance of such warrant is in the nature of a proceeding to punish for contempt of court, rather than in the nature of process to enforce an order of the court. With this contention, however, I am unable to agree. It seems to me that the purpose of the statute authorizing such warrant was to provide an effective, if somewhat summary, method of enforcing the orders of the probate court, and that the warrant so authorized is in the nature of a body execution. This construction of the statute is, I think, fortified by the fact that in another subdivision of the same section of the statute, following the provision already considered, the probate judge is empowered ‘to punish any contempt of his authority, in like manner as such contempt may be punished in the circuit court.’ It seems clear that the specific granting of the power to punish for contempt of court, following the granting of the power to issue the warrant in question, indicates an intention to confer two separate and distinct powers; the one being the power to enforce the orders of the court, and the other the power to punish for contempt of court.”
And upon the contention that the issuing of the attachment without notice, hearing or order to show cause offends the constitutional requirement of due process of law, it was correctly said in Ex parte Audet, 38 R. I. 43 (94 Atl. 678):
“TO state the matter of the petitioner’s claim more specifically, he contends that the statute in question does not provide for a hearing upon the question as to whether payment of the allowance under the decree had been made; that in the present case he had had no hearing in fact; and that such question was adjudi cated in his absence. The petitioner, as the respondent in the divorce proceeding, had full knowledge of the entry of the decree providing for the weekly allowance to his wife, and that, upon his failure to meet such payments, the same would ripen into a judgment, upon which an execution might be issued against him, and upon which he would be liable to be committed to jail. If he was of insufficient ability to pay the allowance he had the opportunity of presenting testimony and argument to that effect to the court at the time when the decree was entered. If he became so impoverished at some later period as to be unable to continue such payments, he could have represented that fact to the court, and sought a modification of the decree or the annulment of that portion which related to allowance. The petitioner does not now allege that he has paid the allowance or that he has failed to pay it through lack of means, and it may therefore be assumed that he has neither paid nor become too poor to pay. With full knowledge of the judgment that was maturing against him, under the statute and the decree of the court, and that execution would become issuable thereon, the petitioner made noi effort to modify or annul the decree, so far as the matter of allowance is concerned, but remained quiescent until he was committed to jail, and then asks for a writ of habeas corpus upon the ground that an execution was issued upon the judgment against him without a hearing. His position is no different from that of any other judgment debtor, who might contend that an execution was issued against him without his being accorded a hearing as to whether he had already paid the judgment. We see nothing unconstitutional in the act of the general assembly in question, nor that the petitioner has been in any way deprived of his liberty or property without due process of law.”
See L. R. A. 1918F, 424; Judd v. Judd, 125 Mich. 228; People v. Dickerson, 164 Mich. 148 (33 L. R A. [N. S.] 917, Ann. Cas. 1912B, 688); Parsons v. Russell, 11 Mich. 113 (83 Am. Dec. 728); High v. Bank of Commerce, 95 Cal. 386 (30 Pac. 556).
Section 10, article 2, of the State Constitution is:
“Section 10. The person, houses, papers and possessions of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things shall issue without describing them, nor without probable cause, supported by oath or affirmation.”
What has been said disposes of the contention respecting this section. But it may be added that upon motion the court records as provided by the statute are grounds for issuing the attachment. But before it issues must there be a showing of probable cause supported by oath or affirmation that said defendant had not paid the alimony as ordered? It might be urged with equal force that before an execution, shall issue to seize the goods of a judgment debtor there must be a showing of probable cause supported by oath or affirmation that the judgment had not been ;paid.
And, finally, it is urged that the act providing for an attachment for nonpayment of alimony violates section 20 of article 2 of the State Constitution which reads:
“Section 20. No person shall be imprisoned for debt arising out of, or founded on a contract, express or implied, except in cases of fraud or breach of trust, or of moneys collected by public officers or in any professional employment. No person shall be imprisoned for military fine in time of peace.”
The defendant circuit judge with good reason relies upon an opinion of this court written in 1872 by Justice COOLEY, Steller v. Steller, 25 Mich. 159. There as here the showing was that payment of temporary alimony as ordered had not been made and defendant claimed the benefit of the constitutional provision inhibiting imprisonment for debt, that he was liable to the commitment by way of punishment only and that he was entitled first to show cause against it under section 4077, 2 Comp. Laws 1857, and it was held:
“Whatever may have been the proper construction of this statute, we are clear that, with imprisonment for debt forbidden, a party can not be imprisoned for noncompliance with such an order, except on the ground of contempt of the authority of the court. There must be in the case something of wrong beyond the mere failure to pay money.” * * *
Our attention is called to and our own investigation reveals no case in this court where this precise point has been followed or overruled. It was held in Re Merrill, supra, where there had been neglect and refusal to pay a sum of money as ordered by the probate judge that the imprisonment therefor “is not imprisonment for debt within section 20, article 2.” See, also, Carnahan v. Carnahan, 143 Mich. 390 (8 Ann. Cas. 53); In re Wood, 82 Mich. 75. The great weight of authority now is that alimony is not a debt within the contemplation of the constitutional inhibition. It is said in 19 C. J. p. 301, § 692:
“While there is authority to the contrary, the general and better rule is that alimony is not a ‘debt’ within the meaning of statutes or constitutions which prohibit imprisonment for debt.”
See cases cited in the foot notes to this section.
' And it is said in 2 Nelson on Divorce and Separation, p. 904:
“It has frequently been insisted that a decree for alimony is in fact a debt, and therefore payment should not be enforced by attachment for contempt where the constitution prohibits imprisonment for debt. But it is uniformly held, and such is the true doctrine, that the decree for alimony is an order of the court to the husband compelling him to support his wife by paying certain sums, and thus perform a public as well as a marital duty. Such decree is something more than an ordinary debt or judgment for money. It is a personal order to the husband,, similar to an order of the court to one of its officers or to an attorney. The imprisonment is not alone to enforce the payment of money but to punish the disobedience of a party; and the order is not, therefore, a debt, within the meaning of the constitution.”
Doubts as to the constitutionality of the act should be resolved if possible in its favor. The trend of more modern opinion, the weight of authority, and the apparent wisdom of the legislation impel us to depart from the said holding quoted from Steller v. Steller, supra, and to hold that Act No. 379, Pub. Acts 1913, does not offend said section 20, article 2.
The writ will issue as prayed. Plaintiff will recover costs against William H. Bowman, defendant in the principal cause.
Steere, C. J., and Moore, Wiest, Fellows, Stone, Bird, and Sharpe, JJ., concurred. | [
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Moore, J.
The garnishee defendant and appellant has brought a writ of error to review the refusal of the circuit judge to set aside a default judgmient. On the 26th of April, 1919, a garnishee summons was issued and the same day it was duly served. On the 28th day of April the garnishee defendant wrote a letter which was subscribed and sworn to before a notary public, and sent it to the circuit judge. In this letter it was stated that the garnishee defendant did not owe the principal defendant anything. This letter was attached to the writ of garnishment dated April 26, 1919, and both were placed in the files of the court. On the 30th day of April a second writ of garnishment was taken out, which was returnable on the 31st of May. By a clerical mistake this writ was dated May 30th instead of April 30th. On April 30th, it was personally served on the garnishee defendant and due return thereof was made and filed. Later judgment was taken against the principal defendant. The garnishee defendant paid no attention to the second garnishee summons which had been served on it. June 7, 1919, the default of the garnishee defendant was duly entered. One year, one month and six days later a judgment was taken against the garnishee defendant. This proceeding is instituted to set aside said judgment, it being the claim of the garnishee defendant that because the second writ of garnishment was dated May 30th, instead of April 30th, it was misled thereby and did not think it necessary to pay any attention to it.
It is its further claim that it was not indebted to the principal defendant and that the entry of the judgment works a great hardship to the garnishee defendant.
This litigation involves a construction of that portion of section 4, of Circuit Court Rule No. 32, which reads:
“In all cases where personal service shall have been made upon a defendant, and proceedings taken after default on the strength thereof, his default shall not be set aside unless the application shall be made within six months after such default is regularly filed.”
Counsel say.:
“This default should be set aside and held void and of no effect. Circuit Court Rule No. 32; § 4, provides for entering defaults in general; and in the case of Turner v. Ottawa Circuit Judge, 123 Mich. 617, this court held that the rule applied only to defaults “duly entered” so that this default was not duly “entered.” The second summons in garnishment was absolutely void.
“It was said by Mr. Justice Campbell in Weimeister v. Manville, 44 Mich. at p. 410:
" ‘We, however, feel, bound to suggest that this remedy is a harsh and peculiar one and ought not to be resorted to without sufficient reason.’
“The proceedings in garnishment must be strictly followed as remarked by Justice Sherwood, in Iron Cliffs Co. v. Lahais, 52 Mich. at p. 396.
“ ‘Statutes of garnishment at best give a “harsh and peculiar remedy” and ought not to be resorted to when the redress sought may be .obtained through common-law proceedings’
—citing several cases.”
The question presents itself, Was the second garnishee summons void because it was wrongly dated? Chapter 28, section 1, of the judicature act (3 Comp. Laws 1915, § 13122), provides that “a writ of garnishment shall be issued, sealed and tested in the same manner as writs of summons.” In chapter 13, sections 2 and 3 of the judicature act (3 Comp. Laws 1915, §§ 12405 and 12406), we find provisions relating to summons, but no mention is made, of the date as being a prerequisite to the issuance of any writ. Section 3 provides that the general rule of court shall fix the form of the summons. Circuit Court Rule No. 18, § 1, fixes the time for the return of an original writ as not exceeding three months from the date “when issued.” There is nothing in Rules 18 or 19 requiring that the original writ shall be dated although the form of writ contained in section 3 of Rule 18 has a blank for the insertion of the date of issuance.
It has been said:
“The date of the writ is not a material part of it and may be entirely omitted without invalidating the writ.” 32 Cyc. p. 439, notes 59, 60. Citing many cases.
Again:
“The date also is no part of the form of a summons.. Hence where a summons is properly issued within the. time allowed by law the fact that it was erroneously dated does not render it void.” 21 R. C. L. p. 1266.
A similar question was recently before this court in the case of Neidhold v. Henry, 210 Mich. 598. Justice Sharpe, speaking for the court, said in part:
“The errors in the dates of issuance and return day of the subpoena were mere irregularities. The plaintiff was in no way misled thereby. He was notified by the subpoena that he must enter his appearance within 15 days after its service on him.”
In the instant case the return day of the second writ of garnishment was correctly stated. The garnishee defendant if he had paid any attention to the writ was advised by it that he had 31 days in which to make his disclosure. We think no such irregularity is shown as to take the case out of the provisions of Circuit Court Rule No. 32, which we have quoted. See the many cases cited in Searl’s Michigan Court Rules, in the notes under Rule No. 32.
The judgment is affirmed, with costs to the appellee.
Steere, C. J., and Wiest, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred. | [
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Steere, C. J.
Chapter xiii, tit. iv, of the Detroit city charter, makes provision for acquisition and operation! of a municipal street railway system by the city, and the issuance of public utility bonds.to purchase or construct the same when authorized by an affirmative vote of three-fifths of the electors of said city. Such charter provision is authorized by the so-called home rule act (Act No. 279, Pub. Acts 1909, as amended [1 Comp. Laws 1915, § 3304 et seq.]) and Article 8 of the State Constitution.
On January 27, 1920, the common council of Detroit adopted an ordinance relative to the city acquiring, owning and operating a street railway upon certain of its designated thoroughfares, declaring the same a necessary public improvement, and providing for submitting the proposition, including authority to borrow not exceeding $15,000,000 upon credit of the city by issuance of public utility bonds therefor, to the electors of the city at a special election to be held April 5, 1920. At the election duly called and held on that date for such purpose the proposition prevailed by a vote of over three-fifths of the electors.
On April 13, 1920, the board of street- railway commissioners of the city requested the common council to issue $100,000 worth of the $15,000,000 public utility bonds authorized by said election of April 5th, and on the same date the council authorized the city controller to advertise for sale that amount of said bonds, bearing interest at 5 per cent, per annum payable semiannually on sealed proposals and receive bids therefor up to April 20, 1920. On the latter date the'controller reported to the council he had received three bids for said $100,000 public utility bonds, all at par and accrued interest, the bidders being the Bank of Detroit, the Joseph H. Berry Estate and the treasurer of the city of Detroit, recommending that the bid of the city treasurer be accepted. On the same date the council acted favorably on said recommendation, accepted the city treasurer’s bid and directed the controller to prepare said issue of bonds, dated May 1, 1920, cause the same to be duly executed and recorded in his office, and “transmit the same in manner and form required by the city charter to the city treasurer to the end that said treasurer may deliver said bonds to the parties entitled thereto, and report the delivery thereof to this body.”
On April 21,1920, preparatory steps for actual work in construction of a portion of the authorized system were taken by the street railway commission. Sealed bids were invited by advertisement, to be presented on or before April 29, 1920, for construction of a stretch of concrete double track roadbed with requisite manholes, drains, back fill, etc., along Charlevoix avenue between the east line of Connors avenue and west line of Alter road. Defendant John A. Mercier was the successful bidder, at a price of $51,446.40. Award of the contract to him was confirmed by the common council on May 4, 1920, followed by a written contract, dated May 12, 1920, executed by him and the railway commission in behalf of the city, which was approved by the council on May 26, 1920.
In the meantime two injunction suits had been commenced by the Detroit United Railway against the city to restrain it from taking steps to carry out the provisions of the proposition for a municipally owned street railway voted upon April 5, 1920. The first was commenced by a bill filed in the Federal district court, eastern district of Michigan, on April 10, 1920, alleging at length on constitutional and other grounds that the proceedings taken for adoption and approval by the electorate of said ordinance and loan were invalid and that to carry the proposition into effect would be in violation of plaintiff’s constitutional rights, praying “that said proposition and said ordinance be declared invalid and void for any and all purposes,” and asking both a temporary and permanent injunction.
The second suit is the instant case, and was commenced on May 12, 1920, in the circuit court of Wayne county, in chancery, by a bill to enjoin the city, certain of its officers and Mercier, the contractor, from proceeding with the proposed construction of the portion of the contemplated municipal street railway along Charlevoix avenue to the west line of Alter road, and from using to that end any funds of the city in payment for public utility bonds purporting to be authorized by electors of the city at the election on April 5, 1920, and sold to the city treasurer. The bill also-attacks the validity of the whole proceeding, alleging; that “there is no lawful authority for the issue by the city of any bonds or for the expenditure of any money for the acquisition or construction of street railways by the city of Detroit.” The bill also charges on various grounds that the Mercier contract of May 12th for work on Charlevoix avenue and sale of public utility bonds by the city to itself to finance the same were in violation of various charter provisions and void. Both a temporary and permanent injunction are. prayed for.
No temporary injunctions, were granted in either of these cases, nor in the companion case of Detroit United Railway v. Wayne Circuit Judge tried jointly with the instant case and before this court on application for mandamus to compel the trial court to grant a temporary injunction after ordering the bill dismissed (212 Mich. 230). The opinion of the trial court printed in this record, dated September 3, 1920, states, referring to that case by number, that “the court rendered the following opinion covering both cases” and in conclusion directed that “a decree be entered dismissing the bill.” A decree, dated November 17th, was filed November 20, 1920, sustaining the validity of the election authorizing the city to issue public utility bonds to acquire a municipal street railway system as proposed, and the course pursued in contracting with defendant Mercier, which was held to create a valid obligation against the city. This appeal followed in due course.
In the meantime a motion in the nature of a demurrer had.been made to dismiss the earlier commenced suit in the Federal district court for lack of jurisdiction and want of equity in the bill. The district court held that a Federal question was involved, but. dismissed the bill for want of equity in its allegations by decree rendered July 9, 1920. From that decree appeal was taken to the United States Supreme Court, where it was pending when the instant case was appealed to this court.
On February 28, 1921, an opinion was handed down by the United States Supreme Court (Advance opinions April 1, 1921, No. 10, p. 356) affirming the decision of the district court on both the questions of jurisdiction and lack of equity, and reviewed the legal issues tendered by plaintiff’s bill on their merits; amongst other things sustaining the validity of the municipal election of April 5, 1920, and concluding:
“We find nothing in the allegations of this bill establishing that the' city of Detroit, in proceeding by its officials in the manner alleged, has done things which are subversive of the rights of the city to establish its own municipal system of street railways and to issue bonds for that purpose, or which would amount to deprivation of rights secured to the plaintiff by the 14th Amendment to the Federal Constitution.”
That decision is clearly res adjudicata not only upon the question of jurisdiction but the validity of the election of April 5th authorizing the city to establish a municipal system of street railways and “to borrow money upon the credit of the city of Detroit to an amount not exceeding fifteen million ($15,000,000) dollars by the issuance of its public utility bonds therefor.” Upon that question plaintiff had contemporaneously invoked the aid of both courts by injunction bills, asking of each at the same time temporary and permanent injunctions. The paramount issue disposed of by the Federal courts basically attacking the validity of the entire municipal railway proposition is also plainly raised by plaintiff’s bill in this case and argued at length in its briefs, although its counsel express doubts on, the question of jurisdiction and urge that the important question for this court is “the power of the city to convert money raised by taxation to the construction of its street railway system,” referring particularly to the purchase of its own bonds with available funds in the city treasury which had been raised by taxation.
It appears that the city treasurer purchased the authorized issue of $100,000 public utility bonds by direction of the council, at a time when there was on hand over $3,000,000 cash in the city treasury, acting under the concluding provision of section 11, chap, v, title vi, p. 127, of the city charter, as follows:
“The city treasurer shall, when directed by the council, bid in behalf of the city, at par and accrued interest, for any bonds offered for sale' by the city, pay therefor out of available balances in the city treasury, and resell the same at any time at not less than par and accrued interest.”
Plaintiff’s counsel urge that this provision does not apply to public utility bonds issued by authority of the April 5th election for municipal railway purposes, while counsel for defendant contends that it does.
As applied to this injunction suit, which involves only the Mercier contract of May 12th, that question now is, and was when the case came on for hearing in the lower court, in its nature academic since the court could not by injunction restrain what had already been done. The contract price for the work to be done was $51,446.40. On May 29, 1920, the city controller certified on the contract, which had been approved by the council, “that an appropriation has been made to cover the expense incurred under this contract.” At that time there remained in the street railway fund the sum of $57,490.24 cash, being the unexpended balance of an appropriation for the street railroad commission in the budget of 1919, besides the available proceeds of the $100,000 bond sale to the city treasurer, not then, however, credited to the railway fund.
The only relief asked in plaintiff's bill was injunctive. No temporary injunction was ever granted. Work appearsi to have proceeded promptly under this contract and the testimony of the chief engineer of the municipal railway system shows that the contract had been completed and paid for before the time this case was heard. It was, therefore, then beyond the power of the court to grant the injunctive relief asked for in relation to such contract.
The decree dismissing plaintiff’s bill is affirmed, with costs.
Moore, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.
The late Justice Brooke took no part in this decision. | [
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Clark, J.
The county of Lapeer contracted with Middleditch to furnish certain labor and materials for erecting a county building. Vosburgh and Haller were the sureties on his bond to the county for the performance of the contract and the payment of the laborers and the materialmen. A. Harvey’s Sons Manufacturing Company (hereinafter called the company) furnished materials. After the completion of the work and before settlement with the county the company notified the sureties of the amount due for materials and threatened suit. Upon the settlement with the county there was found due Middleditch a balance of $1,150. Vosburgh on May 22, 1918, filed his bill of complaint against Middleditch and against Dickerson, county clerk, and Bohnsack, county treasurer, to restrain the payment of the money to Middleditch and to apply it to the payment of the account of the company, setting forth substantially the facts aforesaid and that Middleditch- had said he would not pay the claim of the company but would leave it for the sureties to pay, and upon information and belief that Middleditch was about to leave the State. A temporary injunction .was issued and served on the defendants.
Nothing further was done until May 28, 1919, when it was stipulated by counsel that upon the filing of a bond
“conditioned to pay any judgment or decree that the said Cuthbert L. Vosburgh and John G. Haller may recover against the said Bert F. Middleditch in the above entitled cause, the injunction issued in the above entitled cause be and the same is hereby dissolved and the said county clerk and county treasurer may issue an order for and pay to the said Bert F. Middle-ditch whatever money is now due him on his said contract with the county of Lapeer.”
A bond so conditioned was filed and the money was paid to Middleditch.
On June 4, 1919, Vosburgh and Haller filed an amended bill of complaint praying the same relief and repeating substantially the allegations of the bill including an allegation that said money was still held by the county and further alleging that Middleditch was financially irresponsible. September 8, 1919, the company upon petition was permitted to intervene and to file answer and cross-bill by which an indebtedness of $1,098.63 against Middleditch for said materials was claimed, and in, which it was prayed that the said sum of $1,150 be decreed to be paid to the company.
The amended bill of complaint was answered by the defendants and Haller’s becoming a plaintiff was not questioned. The cross-bill was answered. Defendant Middleditch moved to dismiss the bill of complaint chiefly on the ground that the bill did not state a case for equitable relief and that there was an adequate remedy at law. The motion was denied. The court found that the county officers upon a valid stipulation had paid the sum of $1,150 to Middleditch, found that there was due the company from Middleditch including interest $907.55, and decree for the payment of the amount so found due was entered against defendant Middleditch and the sureties, Vosburgh and Haller, all three of whom have appealed.
It is claimed that by the making and filing of the stipulation dissolving the temporary injunction a discontinuance of the cause was accomplished.
After the stipulation above quoted and the accompanying bond had been made and the money paid by the county officers to Middleditch, two of the appellants, the plaintiffs, alleged in their sworn amended bill of . complaint that the money was still held by the county, and the remaining appellant, Middleditch, in answering the amended bill of complaint admitted such allegation. It was the intention of the appellants that the bond and stipulation should be substituted temporarily for the money pending decree in the cause and that in case of need the money would be forthcoming. The stipulation did not discontinue; it avoided such thought and recognize i that a decree might later be entered in the cause. ' Appellants may not complain because the trial court accepted their view of the situation.
Citing McElroy v. Hatheway, 44 Mich. 399, and Nash v. Burchard, 87 Mich. 85, it is said that the bill does not state a case for equity, that there is an adequate remedy at law, and that the sureties before appealing to equity must perform their obligation and then sue at law for indemnity. But it is said in McElroy v. Hatheway, supra:
“There may be cases no doubt when the court, proceeding in accordance with its own maxims and keeping within the limits given to it in this State, would find some way for relieving the surety by hastening the principal and preventing him from using his opportunity to oppress and defraud his surety.”
The rule in most jurisdictions is stated in 32 Cyc., p. 248:
“After maturity of the debt, although the surety has not been troubled by the creditor, he has the right, before payment, to go into a court of equity, at any time, to compel payment of the debt by the prin cipal, or from the estate of the principal, or to be secured against loss. The doctrine in such cases rests upon the simple right, as between the principal and surety, that the surety has to be protected by the principal.”
The case at bar is distinguishable from the cases cited. We think the amended bill states a case for equitable relief.
It is urged that the temporary injunction was not prayed for in the bill and was void and that therefore the stipulation dissolving it and the bond 'were likéwise void. There is no merit in this contention. No motion to dissolve was made. The stipulation treated the temporary injunction as valid. And this is unimportant because, as we have seen, the appellants, sureties, alleged in their amended bill, after the bond and stipulation, that the money was still held by the county and Middleditch admitted the allegation.
It is contended that the bond signed by the appellants, sureties, and appellant Middleditch as principal is void as not following statutory requirements and in naming as obligee the county of Lapeer instead of the people of the State. See 3 Comp. Laws 1915, § 14827 et seq. A sufficient answer to this is that in the amended bill of complaint of the appellants, sureties, and in the answer thereto of appellant Middleditch the validity of the bond and the liability thereon are admitted. It may be added that the bond was sufficient under the statute and was not invalid for the naming of the county as obligee. See Board of Education v. Grant, 107 Mich. 151.
When the furnishing of the materials was begun Middleditch owed the company about $800 on old account, and this item with items for materials furnished for the county building, and it seems, some other items, were charged into one general account. It was claimed that certain payments by Middleditch should have been applied to the payment of charges for materials for the county building. The trial court found correctly that Middleditch had directed that one payment be applied toward payment for such materials but that there had been no direction for application of the other payments and that the company had the right, which was exercised, to apply such payments, and in support of this the court cited People v. Powers, 108 Mich. 339, where it was held, quoting from syllabus:
“The liability of the sureties on such a bond is not affected, as against the claim of a materialman, by the fact that the latter has received payment for an antecedent indebtedness against the contractor out of funds realized by him under his contract.”
And the claim as to the application of payments, urged for the benefit of the sureties, is here of doubtful merit for Middleditch owed the company, as the court found, but $907.55, while there was impounded of the funds due Middleditch from the county the sum of $1,150 with which to pay it.
The decree is affirmed, with costs to the company against appellants.
Steere, C. J., and Wiest, Fellows, Stone, Bird, and Sharpe, JJ., concurred. Moore, J., did not sit. | [
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Clark, J.
Condemnation proceedings under 1 Comp. Laws 1915, § 2784 et seq.- The jury summoned by the justice of the peace found the taking necessary and awarded defendant $600. In the circuit court there was a like result. Defendant, upon appeal here, contends that the justice of the peace was without jurisdiction because of section 16, article 7, of the Constitution, which gives justices of the peace exclusive jurisdiction to the amount of $100 and concurrent jurisdiction to the amount of $300, and which provides that the same may be increased to $500. The contention has no merit. The justice of the peace formed no part of this special tribunal. His duty was to set the proceedings in motion by organizing the jury. His functions were at the most advisory. The jury were judges of both law and fact, a jury of inquest, not a court. The award is the award of the jury, although the justice of the peace must affirm or vacate it. See Grand Rapids, etc., R. Co. v. Chesebro, 74 Mich. 466; Toledo, etc., R. Co. v. Dunlap, 47 Mich. 456, and City of Detroit v. Fidelity Realty Co., 213 Mich. 448, where this subject is fully considered.
With this claim of appeal to the circuit court defendant set forth a special objection (section 2798, 1 Comp. Laws 1915) that the officer, designated by the justice of the peace for that purpose, did not furnish a list of 24 freeholders, that certain of those listed as freeholders were not in fact such, that certain of such persons sat as jurors, that the two talesmen were not freeholders, and that one of the list of 24 was an officer of the plaintiff village. On the day set for the inquest in the circuit court, and. before impaneling the jury, defendant offered in support of the special objection the testimony of witnesses, including some of the jurors who had been summoned by the justice of the peace. Complaint is made of the refusal of the offer. On July 26, 1920, from such list defendant, in person, struck 6 names and plaintiff struck 6 names, including the name of its officer. The 12 remaining were summoned to appear on August 2, 1920. They were subject to challenge for cause. Not being a freeholder was ground for challenge. The record'shows no inquiry on the subject. No challenge was made. On the day but 10 appeared. The panel was filled by talesmen, plaintiff and defendant in person consenting. Both parties announced satisfaction with the jury and the oath was administered. The objection was waived. See Mansfield, etc., R. Co. v. Clark, 23 Mich. 519; Smith v. School District, 40 Mich. 143; Chatterton v. Parrott, 46 Mich. 432; Johr v. People, 26 Mich. 427; Detroit, etc., R. Co. v. Crane, 50 Mich. 182; Palmer v. Highway Commissioner, 49 Mich. 45; 20 C. J. pp. 1006, 1008.
In the circuit court the judgment of confirmation was entered on the same day the verdict was rendered. This is said to be void because of section 2809, 1 Comp. Laws 1915.
“Sec. 26. The verdict of the jury may be set aside by the circuit court and a new trial ordered as in civil actions at law. Said court may allow amendments either in form or substance as may be necessary and in that behalf exercise all the powers hereinbefore granted. Motions for a new trial or to arrest the proceedings shall be made within two days after the rendition of the verdict unless further time is allowed by the court, and if no such motion is made, or being made, is overruled, the court shall enter an order or judgment confirming the verdict of the jury, and such judgment of confirmation unless reversed by the Supreme Court, shall be final and conclusive as to all persons interested therein.”
No motion for a new trial or to arrest the proceedings was made. There is no showing of prejudice to the defendant because of the early entry of the judgment, and without it there is no merit in the contention.
We have considered the other questions raised. We find no error.
Affirmed, with costs to plaintiff.
Steere, C. J., and Moore, Wiest, Fellows, Stone, Bird, and Sharpe, JJ., concurred. | [
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Moore, J.
The plaintiff while in the employ of the Isle Royale Copper Company received an injury to his left leg on the 28th day of March, 1918. An agreement for compensation was entered into between him and his employer, which received the approval of the industrial accident board. The plaintiff received com pensation at the rate of $10 a week from the< time of the injury to November 2, 1918. At a hearing of the industrial accident board held June 17, 1920, the board made an order by which the plaintiff received compensation for partial disability from January 1, 1919, up to and including July 31, 1920, at the rate of $5 a week. The industrial accident board entered an' order December 9, 1920, that the plaintiff had been partially disabled since July 31, 1920, and that the difference between his present earnings: and his earnings prior to the accident amounted to $5.64 ger week, and that he was entitled to $2.82 a week during such partial disability not to exceed 300 weeks from January 1, 1919, or until proofs are filed showing that conditions have changed or disability has ended.
The attorneys for the defendant company say:
“The only question the respondent seeks to have reviewed in this case is the. construction [to be] placed upon the law by the industrial accident board in regard to the date from which compensation shall run in cases of partial disability.”
The attorneys for the appellee say:
“It seems to us that the real question in issue is: What is the period of compensation for partial disability provided for under part 2, § 10, of the compensation law (2 Comp. Laws 1915, § 5440).”
The industrial accident board seemed to be in doubt about the propriety of the order entered. The appellant’s counsel cite section 5440, 2 Comp. Laws 1915, and Limron v. Blair, 181 Mich. 76, while counsel for appellee, in addition to these, cite section 5439, 2 Comp. Laws 1915, and the cases of Schimmel v. Detroit Pressed Steel Co., 206 Mich. 449, and Addison v. W. E. Wood Co., 207 Mich. 319. No one of the cases cited deals with the precise question at issue here. We think the applicable statute is section 5440, supra. The provisions which are important in the instant case read:
“While the incapacity for work resulting from the injury is partial, the employer shall pay or cause to be paid as hereinafter provided, to the injured employee, a weekly compensation equal to one-half the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter, but, not more than ten dollars a week; and in no case shall the period covered by such compensation be greater than three hundred weeks from the date of injury.” * * *
This language is simple, clear and unambiguous, and we think is controlling.
Counsel argue and give illustrations that are persuasive that this construction of the statute may in certain instances work a great hardship. If it be conceded that the argument is true, still we think it one to be addressed to the legislature and not the court. The' order should be changed so that the 300-week period should begin at the date of the injury.
The case is remanded. The appellant will recover costs.
Steere, C. J., and Wiest, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred. | [
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Sharpe, J.
In this case an injunction is sought by plaintiffs, who are taxpayers of the county of Alger, to restrain the defendant board from expending money in causing a tract index or set of abstract books to be compiled in that county. It presents a .similar question to that decided in Thomas v. Board of Sup’rs of Wayne Co., ante, 72, and is ruled thereby.
The decree entered is reversed, and one may be entered here dismissing the bill of complaint, with costs of both courts to defendants.
Steere, C. J., and Moore, Stone, Clark, and Bird, JJ., concurred with Sharpe, J.
The late Justice Brooke took no part in this decision. | [
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Steere, C. J.
This case is before us on éxceptions before sentence to review the conviction of defendant under an information charging him with haying a quantity of intoxicating liquor unlawfully stored in a certain room of a business block in the city of Holland, “for the purpose of being unlawfully sold, given away and furnished in this State, contrary to the statutes,” etc., Act No. 338, Pub. Acts 1917, being the statute contrary to which the alleged misconduct is charged. The proceedings were initiated hy a search warrant issued pursuant to section 25 of said statute. The evidence essential to conviction was obtained by means of said search warrant. The facts and law under which defendant was convicted parallel in essentials those in People v. De La Mater, 213 Mich. 167.
In that case it is held that section 25 of said Act No. 338 is unconstitutional, and evidence secured by means of a search warrant issued under it is incompetent. The conclusions there reached upon that question are decisive of the instant case, unless the prosecution is right in the contention that the question of constitutionality of the law under which the search warrant issued was not properly raised by defendant in the trial court. It is true that it was not pressed as a paramount issue, like it was in the De La Mater Case, but we think it was fairly raised.
Defendant had been running a hardware business in the block where the liquor seized was located. He owned an interest in the building and had general charge of it. Rooms on the second floor were rented for offices and other purposes. When the officers went to search the premises they showed him the search warrant and advised him of their mission, telling him they desired to search upstairs. He acquiesced, took a bunch of keys and went upstairs with them. While up there the officer who had the search warrant said he wanted to get into a certain room, to which defendant replied he had no key to or control over the room which was rented to a Mr. Saunders who was absent. The officers then gained entrance to the room without his assistance and found a quantity of liquor there which they seized. Complaint was then made against defendant and this prosecution followed.
On preliminary examination before the magistrate defendant’s counsel moved for his discharge, claiming that no evidence had been produced pointing to defendant’s guilt under the provisions of Act No. 338, and for other reasons immaterial here. He was bound over to the circuit court for trial. Customary return was made by the magistrate, which included the initial search warrant and affidavit therefor, made under the provisions of the statute, based only on affiant’s statement that he had “good reason to believe and does believe,” etc. When arraigned in circuit court defendant stood mute and his counsel moved to quash the information and all proceedings in that connection on the same grounds urged before the magistrate. This motion was overruled and defendant’s plea of not guilty entered by order of the court.
In his opening statement to the jury of the facts he proposed to prove the prosecuting officer stated among other things that the officers had a right to search the room with the search warrant as they were proceeding to do and defendant’s counsel took exception “to the remark that they had a right to search that room with the search warrant.” The first witness called was the officer who served the search warrant. After he had testified that he was armed with a search warrant when he went to the place, which he. identified and the prosecution offered it in evidence, counsel for defendant objected on the ground that it was issued under an unconstitutional law, as had been held, which the prosecuting attorney contradicted, saying it was issued under Act No. 338. The trial court sustained the objection but allowed the officers to testify as to what they did and found under their search warrant. At the request of the prosecution they produced in court and identified the liquor they then seized, to which counsel for defendant objected and the objection was overruled. Objections were consistently made during the trial to the admission of such evidence. No testimony was offered by the de fense. A directed verdict was asked for defendant because of no competent evidence to show that the liquor seized under the search warrant belonged to or was kept by him where found for the unlawful purpose charged. We conclude that the question of the validity of the search warrant and competency of evidence obtained by means of it were fairly and timely raised in the trial court.
In view of defendant’s insistent disavowal of any control over, interest in, or knowledge of, the seized liquor, which he and his counsel impute to the yet absent and thus far mysterious Mr.. Saunders, no question of its return to the owner is involved here.
The conviction must be set aside and defendant discharged.
Moore, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.
The late Justice Brooke took no part in this decision. | [
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Steere, C. J.
On April 28, 1919, Philip Gee, Jr., a lad 17 years of age, while working as an “off-bearer” on defendant’s portable saw-mill in the township of Deerfield, Lenawee county, fell against the saw which entirely cut off his left leg above the knee and' injured his left arm' at the elbow so as to permanently cripple it. Imputing the' accident to defendant's negligence this action was brought to. recover damages for such injuries. Numerous grounds of negligence are charged in plaintiff’s declaration, amongst which are failure to provide a safe place in which to work, failure to protect the machinery as required by law, failure to instruct plaintiff as to the safe and proper method of doing his work and warning him of the dangers attending it, employment of incompetent fellow-servants and setting plaintiff, a minor under 18 years of age, to work at hazardous employment, in violation of Act No. 255, Pub. Acts 1915 (2 Comp. Laws 1915, § 5330 et seq.), which in section 11 provides, amongst other things, “No male under the age of eighteen years shall be * * * employed * * * in any hazardous employment,” with a proviso that a male over 16 and under 18 years of age may be employed except in certain specified occupations if his employment is first approved by the department of labor as not being unduly hazardous. Defendant pleaded the general issue under which he made total denial of all grounds of negligence charged against him and also contended plaintiff was not at the time of the accident in his employ but had simply volunteered his help.
It was undisputed that defendant had not elected to come under the workmen’s compensation law nor obtained from the department of labor approval of plaintiff engaging in any hazardous employment. Plaintiff recovered verdict and judgment for $6,000 and defendant removed the case to this court for review on various assignments of error, three of which are argued in appellant’s brief. They in substance involve but two contentions, first, that a verdict should have been directed for defendant because it appeared there was a safe and unsafe way to do the work in which plaintiff was engaged and he was guilty of negligence as a matter of law in adopting the dangerous method; and second, reversible error was committed by the court in charging the jury upon the measure of damages.
Defendant was a farmer, owning a large amount of land in Deerfield township upon a portion of which there was considerable timber. He had purchased a second-hand portable saw-mill made by the Port Huron Manufacturing Company. The mill had been upon his place about a year, operated a part of the time by the party from whom he purchased it. Plaintiff was injured about two weeks after defendant bought the mill and ran it with his own crew, while he was doing a job of sawing material for bridges. On the morning of the accident before they commenced work plaintiff who lived near by came over and defendant asked him to take the place of one of his sons who had been working but was then away, and he did so. Defendant told him to help roll up logs when wanted and when they were sawing to help carry away the sawed material, or “off-bear” as it is termed. He worked during the forenoon and until he was injured about the middle of the afternoon.
Plaintiff was a normal, able bodied boy raised on a farm, who had attended district school until he finished the sixth grade, had no experience or training in any calling except work on a farm for his father and neighbors, or knowledge of machinery aside from agricultural implements in common use, had seen portable saw-mills in use but never worked on one before.
On the day plaintiff was injured he and defendant’s son .Frank, a man of mature years, worked as off-bearers. Defendant was around the mill and occasionally helped at that work. During the forenoon they sawed posts and lumber. Some of those pieces one man could carry. Shortly before the accident they commenced sawing 8-inch oak plank requiring two men, one at each end.
Of the situation, his work, and the accident plaintiff testified in part as follows:
“This was a portable saw-mill and the saw was placed in what was called the husk, and the husk was made of planks on three sides, the east, west and south sides, and the saw was on the north side, and there was a track on which the carriage ran on the north side of the saw. and this track was made with little iron strips with three corner rail on which it ran, and these were laid oh boards resting on blocks on the ground. * * * There was a pulley on the other end of the shaft to which the belt was attached, which ran to the engine which was located east of the mill. The engine was on the south side of the track, and about 30 or 35 feet away, and about five feet from the end of the track. * * * The log was brought up to the saw by the carrier and after the board or slat) was sawed off it would run back to the west and when the board was first sawed off it would drop' on the ground about a foot from the saw, and we would pick it up and carry it away. * * * I was told to pile this stuff on the north side of the track by Mr. Brunt; That is. where he piled it. In order to pile it there we had to carry it across the track. * * * One of us would be at each end of the plank or board, and I was instructed to carry the end next the saw, and .as I stood there to pick up the board the saw would be at my left and the belt would be back of me four feet, and the track would be in front of me, and the cable would be running in the center of the trade a part of the time and the saw would be running part of the time when we were picking up this lumber and carrying it away * * * We carried boards in the forenoon and plank in the afternoon, and some posts. * * * Mr. Brunt’s son, Frank, was at the other end assisting me. He is about 40 years old. * * * When we started to pick up this plank Mr. Brunt’s son, Frank, and I picks up the plank, and I was watching Frank and thought he might drop it the first tíme I was watching him, and when he goes to drop it I drops mine at the same time. Then I tells Frank, ‘you hang on to your plank now, I am pretty close to the saw.’ He says, ‘All right.’ We got hold of the plank and just as I stepped up on the track he lets his end drop and throws it out of my hands, and It strikes me about five inches above my right knee, and throws me right backwards right into the saw. As I was going into the saw I throws my arm like that to save from getting me into the saw, and it gets my arm and throws my leg in between the roller and the saw and cuts my leg off, * * * This plank was heavier and larger than any plank we had sawed before that. This was the first one of the large heavy plank, heavy oak plank. It was about 14 feet long, 14 inches wide and 3 inches thick.”
The testimony of other witnesses to the accident though varying in details is in general to the same effect. George Pieh, an old acquaintance of defendant who was then working for him as “setter,”— riding the carriage and setting the log to the saw for each new cut, — described the mill which had a 54-inch saw as set east and west, explained its operation, work of the crew, etc., in greater detail, and said in part:
“The engine was about 35, feet east, and it was 32 feet from the saw end of the husk to the northeast end of the track. It was about 5 feet from the south rail of the track to the drive belt, and the off-bearers as they came to get a plank would go between the belt and the track. The board after it was sawed off would be between the belt and the track. At the time of the accident the plank was 3x12x14, white oak. Frank Brunt and Philip Gee were doing the off-bearing. Philip was working next to the saw. I saw them pick up this plank. I was down in the pit getting some sawdust out from under the saw, * * * and as I stepped out Philip dropped his end of the plank. I got up to set the next plank up and as I turned around they were starting out with it again. I was just going to set the other plank up when he dropped his end the second time and started stumbling backwards toward the saw, and fell with his left leg between the lumber guide and the saw. He throwed Eis arm over the saw some way. It was done so quick. * * When Philip fell into the saw it cut his leg off, it threw it a hundred feet or better and he exhibited signs of pain and suffering. * * * He was going in a northeast direction, and dropped his end and stumbled backwards and fell into the saw.”
Clyde Harrison, plaintiff's' head sawyer, testified of the accident in part as follows:
“Well, Frank Brunt took the plank. He had hold of the end of the plank and pulled it off from the end of the husk and it dropped down. * * * Frank Brunt picked up' the end of the plank and pulled it out. * * * Then this Gee boy came in there and got hold of the end of the plank at the end of the husk. They both picked the plank up and dropped it. Then Frank picked up his end and the boy picked up his end and got it up a little ways, and dropped it and staggered back towards the saw; in fact went into the saw in some shape or other.”
Mrs. Agnes Tucker, who lived across the road from where they were sawing, testified to seeing Frank Brunt and the Gee boy working there that afternoon and said:
“I just happened to go to the window as Philip Gee’s leg flew some four or five rods, and I saw Frank was holding the end of the plank, and the Gee boy, when he got hurt.”
Off-bearing from a veneer saw in a mill has been held hazardous employment as a matter of law, Unnewehr Co. v. Insurance Co., 99 C. C. A. 490, 176 Fed. 16. There was certainly sufficient evidence in this case tending to show plaintiff’s employment was hazardous to carry the question to a jury, and, if so, his employment at such work without approval by the department of labor was in violation of law, constituting actionable negligence. Sterling v. Union Carbide Co., 142 Mich. 284; Braasch v. Michigan Stove Co., 147 Mich. 676; Syneszewski v. Schmidt, 153 Mich. 438; Sargent Manfg. Co. v. Insurance Co., 165 Mich. 87, 93 (34 L. R. A. [N. S.] 491); Radic v. Jackson & Co., 178 Mich. 618; Great Lakes Laundry Co. v. Insurance Co., 184 Mich. 294; Kruczkowski v. Publishing Co., 203 Mich. 211.
An examination of those cases shows it has been held that the causal connection between the minor’s injury and his wrongful employment will characterize the latter as a proximate cause, and when the question of unlawfully engaging the minor in hazardous employment has been determined adversely to defendant assumption of risk and negligence of a fellow-servant are no longer available defenses; although in the instant case the court favored defendant by squarely submitting those two claimed defenses to the jury also, without contingency.
In charging the jury the court put the burden of proof on plaintiff as follows:
“The plaintiff must satisfy you by a preponderance of the evidence on all the following propositions:
“(1) That he was in the employ of the defendant at the time of his injury; (2) That the employment was of a hazardous nature; * * * that defendant was negligent; (3) Defendant’s negligence was the proximate cause of plaintiff’s injury; (4) That plaintiff’s injury was not an assumed risk; (5) That plaintiff’s injury was not caused by the negligence of a fellow-servant; (6) That plaintiff was not himself guilty of contributory negligence that contributed to the injury; (7) The amount of damages.”
Defendant’s testimony that plaintiff was hired by him only for the forenoon and was not in his employ when injured is met by direct testimony to the contrary and was properly left by the court to the jury.
Determination by the jury that the employment was hazardous would dispose of the assumed risk, fellow-servant’s negligence, proximate cause and, prima facie át least, defendant’s negligence, although there was further testimony in the case which raised issues of fact on those questions.
There was testimony to go to the jury upon the question of plaintiff’s- contributory negligence. Defendant contends that he was guilty of contributory negligence- as matter of law because he selected an unsafe way when a safe one was known and open to him. (Citing cases.) Under certain circumstances the courts have held such conduct contributory negli gence. The claim is predicated mainly on plaintiffs admissions in answer to leading questions on cross-examination, the strongest of which are as follows:
“Q. Now, if you had taken that plank and gone right straight east—
“A. We didn’t go straight east.
“Q, If you had, there was not any danger, was there?
“A, No.
“Q, Not a bit.
"A. No.
“Q. You knew that, didn't you?
“A. Why, I didn’t know that. * * *
“Q. If you had picked that plank up, or when you picked it up, if you had gone right straight east with the plank, there would not have been any danger, would there?
“A. Why, no.
“The Court — If you want to explain you can.
“A. Mr. Brunt when he off-bore with me, didn’t go to the east. We just took it from the saw and went right straight across the track. * * *
“Q. When you picked it up you went right in front of the saw, you knew that was a dangerous way to go?
“A. Yes.”
If plaintiffs testimony is to be believed there were no two ways by which they off-bore plank to the piling place north of the track. He was stationed at the east, closest to the saw with a man of mature years and experience at the other end of the plank presumably in charge who would naturally control this inexperienced boy in the course they took. If the accident befell him by reason of going across the track instead of around the east end of it he must at that time have gone on or across the track to the east and north of the saw and when the accident happened fallen to the southwest to come in contact with it. Defendant and his son both testify positively that plaintiff fell northwest in to the saw. If so, crossing the track had nothing to do with the accident. De fendant was interrogated upon that subject and answered as follows:
“Q. Now, did he carry the plank away, so far as you saw?
“A. No, I don’t think they carried it a foot.
“Q. He picked it up and dropped it, then he picked it up a, second time?
“A. Yes, sir, and the plank laid right there on top of the other one after it occurred.
“Q. And the boy in order to get into the saw went over to the—
“A. Over to the northwest into the saw. * * *
“Q. There has been some testimony here that they started to go and had gone across and gotten partly over onto the track?
“A. It was no such thing. How could they? There was a big pile of saw-dust, as high.as my head if it hadn’t been leveled off.”
Defendant’s son Albert, who saw the accident, testified:
“At the time he picked this plank up he was standing southeast from the saw, and fell over backwards to. the northwest toward the saw. * * * They were about a foot and a half south of the track. * * * He didn’t start carrying this plank across the track going north. * * * Philip was facing the east when he picked up the plank.”
Defendant’s son Ralph, in describing the accident, said:
“They picked it up and they both dropped it, and then they picked it up again, and Philip dropped his end and commenced staggering back and fell into the saw.”
Under defendant’s version of the event the boy was to the southeast of the saw and fell northwest against it. If he had not started across the track with the plank, as defendant and his son Albert both positively testify, there was no question of a safe or unsafe way involved. There is a conflict in the testimony as to just where he was and what direction he fell when injured. There is testimony that defendant himself when assisting to off-bear carried directly to the north across the track and not only showed by example but instructed plaintiff to do the same. He was an inexperienced. boy working with and under the direction of experienced men of mature years. We think the court properly submitted the question of his contributory negligence to the jury; and when doing so he also left to them the determination of whether or not there were two ways by which the carrying away could be done, one safe and one unsafe, and if so' whether plaintiff—
“used ordinary care and prudence or not, considering what he knew or could see, his location at the work, whether he had been warned or not, and whether he knew and appreciated the dangers or not; in fact the question of contributory negligence is to be determined by you from all the facts and circumstances of the case.”
The charge was very full and complete upon the subject of contributory negligence, and fair to defendant.
Defendant’s objections to the charge of the court as to damages are directed against the manner of computing rather than the measure of damages. It is urged that in the portion of the charge relating to computing future damages the court ignored the true rule “that the loss would be the difference between what this boy might have earned and what the jury find he would have earned in his disabled condition;” and attention is particularly called to a paragraph of the charge in part as follows:
“For instance, the first thing you do, if you come to the question of damages, you would say: How much should we allow plaintiff for damages for pain, suffering and humiliation from the time he was in jured up to now? Then next, how much shall we allow him for future pain and suffering, and in determining that you will arrive at it in this way: How much will his damages be for the next year for pain and suffering? If you should find that would be $300 or $500 or $200, or whatever it might be, or it might not be anything; but if you find any sum for next year, you would divide that sum by 1.05, and that will give you the present worth of his suffering for next year. Then you will say, what will he suffer the second year from now? * * * Whatever amount, you will divide that by 1.10. If you find he will suffer the third year, you will divide that by 1.15, and for the fourth year by 1.20, and so on for each year.. The same rule applies to his earning capacity. Whatever sum you find he would earn the first year after he is 21, you will divide that by 1.20, because it is 4 years before he is 21.” * * *
It may be conceded the charge at that point is not happily worded and standing alone might be understood as indicating that what he would earn in the future uninjured should he taken as the basis in determining damages for loss of earnings, regardless of anything he might probably be able to earn; but a charge is to be considered in its entirety, as the jury heard it, and each part considered and construed in connection with all said upon the subject. The court instructed the jury very fully upon the question of damages in its various aspects. That portion of the charge devoted to damages covers nearly seven pages of the printed record. As a whole it fully and correctly states the law of damages as applied to the case in hand. After discussing present damages the jury was told, just preceding the portion complained of,—
“and also determine what his loss will be for decrease in earning power after arriving at the age of 21 years. You will then determine the present worth of all future damages you may allow him. . * * * And you will then determine the present worth of such sum as you may allow him for decrease of earning power or loss of income in the future.”
Closely following the portion of the charge complained of the court told the jury:
—“you are instructed you have a right to take into consideration the ability of this plaintiff to fit himself for lines of work which he might be able to do in order to earn a living. I instruct you that under the proof in this case plaintiff might be able to fit himself for a clerical position so he might earn sufficient sums of money to replace any loss by reason of impairment for performance of manual labor; and you have a right to take all the evidence into consideration, considering the age of the plaintiff, his knowledge or lack of knowledge, and determine whether in the future he will be deprived of earning a livelihood because of the injuries received in this accident, or whether his damages will be reduced in any way.”
The court also discussed' plaintiff’s expectancy and cautioned the jury in that connection to consider its uncertainties, saying:
“You should also consider such contingencies as sickness, and his inability to earn money, and his inability to labor from other causes than from this injury at this time, or will in the future suffer in any Other way than from this injury; also the fluctuations in value and demand for his services, and make full deductions for all these contingencies.”
Plaintiff was mutilated and crippled for life by a lost leg and stiffened arm. Heavy damages were claimed, to the extent of $30,000 in plaintiff’s declaration. Appropriate to the situation the court cautioned the jury against being influenced in their duties by sympathy, etc. No motion for a new trial was made and it is not complained the verdict was excessive, if defendant’s liability was legally established.
Viewing the charge as a whole, we cannot conclude it contains prejudicial error, nor even if there was technical error in the excerpt complained of that it misled the jury or is reflected in the verdict.
The judgment is affirmed.
Moore, Wiest, Fellows, Stone, Clark, and Sharpe, JJ., concurred. Bird, J., did not sit. | [
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Clark, J.
On Brush street in Detroit an automobile in which plaintiff was a passenger collided with another motor vehicle, skidded, stalled, and stopped standing diagonally across the street car tracks of defendant, where, as plaintiff claims, about 8 o’clock in the evening of August 22, 1916, the street being lighted, it was struck by one of defendant’s street cars and she was injured. Defendant claims that there are errors in the trial which resulted in a judgment for plaintiff.
The negligence charged against defendant in substance was that the motorman ran his car in a careless and reckless manner regardless of the safety of plaintiff, when, had he been careful, he could have seen plaintiff and stopped his ear or slackened its speed sufficiently in time to avoid injuring her. At the conclusion of plaintiff’s proofs defendant made a motion that a verdict be directed in its favor, contending that there was no evidence of negligence on its part in that plaintiff showed neither the speed of the car nor the, distance within which it could have been stopped or its speed slackened to avoid the accident.
The denial of the motion, is said to be error. Testimony in plaintiff’s behalf was that at the time she was put in the place of danger as aforesaid the street car was “260 feet less its length away,” “a block away,” “about a block away.”
Plaintiff, as to what happened after the automobile stopped on the car tracks, testified:
“I saw the street car about a block away and a,t that time we were in a stationary position; but I cannot say for how long; I can’t judge; I would not say that it was a minute. The car was a block away. I judge that to be. the distance from looking down the street. I was in full view of the car all of the time and the automobile was in full view of the motorman. After we were stalled on the track it came all that distance and smashed right into our machine. I don’t know how fast the car was going when it struck us. It was moving slowly; it was moving along, I don’t know how fast.
“Q. About as fast as a person would walk?
“A. I don’t know, it was just moving, I don’t know how fast or how slow.
“Q. You said it was moving slowly?
“A. Yes, I said that.
“Q. What do you mean by slowly?
“A. Street cars generally go pretty fast.
“Q. This one was going very slow?
“A. It was going slow; yes.”
Another witness testified:
“The street car was coming fast. It was running at a speed street cars generally run. It didn’t stop up at all before it struck us. It came right on towards us at the same speed all of the time on that track for a minute or more. It kept coming down Brush and smashed right into us. It had not come to a stop. I said it had plenty of time to stop. He kept coming down as fast as cars usually run with us in full view and ran right into the side of our machine.” * ' * *
There was testimony that the motorman had seen the collision between the motor vehicles and of a considerable interval of time, “two or three minutes,” “one-half minute,” “about a minute,” between the stalling of the automobile and its being struck by the street car which was an open car.
For the purpose of the motion the evidence adduced by plaintiff must be viewed in the light most favorable to her, and when so viewed it appears that an issue of fact as to defendant’s negligence was presented.
Regardless of the testimony as to speed and the. testimony of the witness received without objection that the motorman had plenty of time to stop, and the facts as claimed on behalf of plaintiff, counsel for defendant insist that the jury was permitted to assume that in operating the car with reasonable prudence and care it could have been stopped or its speed slackened sufficiently in time to avoid injury to plaintiff, and that the car could have been so stopped or its speed so slackened was treated as a matter of common knowledge, citing Kotila v. Railway Co., 134 Mich. 314. A reading of that case will show that the facts differ from those of the case at bar. Whether the jury may assume or determine as a matter of common knowledge that a street car operating on a city street in the exercise of prudence and reasonable care may be stopped or its speed sufficiently slackened in time to avoid injury to one situated ás was plaintiff, within the distance of a city block, within 260 feet, is a question which, if it required discussion, need not be here considered.
Complaint is made that the court in the charge gave undue emphasis to plaintiff’s claim and theory in the case and failed to instruct as to the theory of the defense. The testimony of defendant’s witnesses tended to show that the automobile in which plaintiff was riding came upon the car tracks so closely in front of the car that the accident was unavoidable and there was also testimony that the automobile ran into the street car after the motorman had brought it to a full stop or as it was being stopped. The motorman testified that along the block in question the speed of the street car was 8 miles per hour at which speed with power off it could be stopped in about 10 feet. Defendant’s claim, which its testimony supports, was that it was free from negligence and that the accident was due to the negligence of the driver of the automobile.
The court stated to the jury the claims of the parties and said:
“The only question of negligence claimed by the plaintiff is the fact that after the car in which she was riding was placed in a perilous position that the motorman then had ample time in which to stop the car, and that he negligently failed to do so, and therefore, if you find for the plaintiff, you must find these facts to be true, and I will say to you, gentlemen of the jury, that the mere happening of an accident which has been detailed by the witnesses in this case does not raise any presumption of negligence, and it is upon the plaintiff to show by a preponderance of the evidence, that the defendant, through its agents and employees and representatives, was guilty of negligence in the manner detailed by her, and I will charge you, gentlemen of the jury, that if you find that the automobile and street car collided at a time when the automobile was still moving, or that the automobile while moving ran into the street car, then there can be no recovery in this case, because of the fact that the plaintiff plants her case upon the theory that the automobile had come to a dead standstill and was in that position for several minutes, as detailed by her witnesses, and if you find the fact to be that the automobile was not in that position for a sufficient length of time prior to the accident to enable the motorman to stop the car, then in that event there can be no recovery.”
We find no error in the charge which as a whole fairly submitted the issues to the jury.
Defendant offered in evidence a written list of witnesses made by the conductor of the car at the time of the accident with testimony of its inability to produce certain of the witnesses which was refused. Plainly the purpose of the offer was to create the impression that the testimony of these persons, if produced, would be favorable to defendant. The refusal was not error.
The other assignments of error have been considered, and, no reversible error appearing, the judgment is affirmed.
Steere, C. J., and Moore, Wiest, Fellows, Stone, Bird, and Sitarpe, JJ., concurred. | [
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Sawyer, J.
Plaintiff instituted an action under the Freedom of Information Act (foia) to compel defendants to disclose a consultant’s report prepared by an independent consultant for defendants. The trial court granted disclosure and defendants now appeal.
Plaintiff was awarded a contract by the State of Michigan for construction work at Saginaw Valley State College. Problems developed during the project and cost overruns were incurred. Plaintiff has not been compensated for costs over the contract price. The state retained the construction consult ing firm of Wagner-Hohns-Inglis, Inc., to conduct an independent inspection and evaluation of the construction project.
Plaintiff was requested by the state to cooperate with Wagner in the investigation and plaintiff was allegedly promised a copy of Wagner’s report. However, the report was not furnished, leading to the present foia proceeding. The attorney general denied the foia request, citing the exemption contained in MCL 15.243(l)(n); MSA 4.1801(13)(l)(n).
We are presented with a question of first impression, namely, whether § 13(l)(n) of the foia provides for exemption from disclosure of an outside consultant’s report to a public body. That section provides in pertinent part:
(1) A public body may exempt from disclosure as a public record under this act:
(n) Communications and notes within a public body or between public bodies of an advisory nature to the extent that they cover other than purely factual materials and are preliminary to a final agency determination of policy or action. This exemption shall not apply unless the public body shows that in the particular instance the public interest in encouraging frank communications between officials and employees of public bodies clearly outweighs the public interest in disclosure.
In determining whether the consultant’s report comes within the above exemption as a communication with or between a public body or bodies, we must begin with the definition of a public body. Section 2(b) of the act defines it as follows:
"Public body” means:
(i) A state officer, employee, agency, department, division, bureau, board, commission, council, authority, or other body in the executive branch of the state government, but does not include the governor or lieutenant governor, the executive office of the governor or lieutenant governor, or employees thereof.
(ii) An agency, board, commission, or council in the legislative branch of the state government.
(iii) A county, city, township, village, inter-county, intercity, or regional governing body, council, school district, special district, or municipal corporation, or a board, department, commission, council, or agency thereof.
(iv) Any other body which is created by state or local authority or which is primarily funded by or through state or local authority.
(v) The judiciary, including the office of the county clerk and employees thereof when acting in the capacity of clerk to the circuit court, is not included in the definition of public body.
The definition does not include outside consultants employed by the state.
Exemptions to the foia are narrowly construed and the burden of proof is on the party claiming exemption from disclosure. The Evening News Ass’n v City of Troy, 417 Mich 481; 339 NW2d 421 (1983); Milford v Gilb, 148 Mich App 778; 384 NW2d 786 (1985). Defendants urge us to follow the decision of the New York Supreme Court, Appellate Division, in Sea Crest Construction Corp v H D Stubing, 82 AD2d 546; 442 NYS2d 130 (1981), which interpreted the analogous New York foia exemption provision as including communications from independent consultants to a public body.
Defendants advance strong public policy arguments as to why the reports of independent consultants to a public body should be accorded the same status as reports generated within the public body itself. However, the statute does not provide for such an exemption. While we would urge the Legislature to take up this issue and consider an appropriate amendment to the foia, for us to interpret this statute as providing for an exemption in this case would be to ignore the clear directive of the Supreme Court to narrowly construe the exemption provisions of the act and to abandon the role of the judiciary in order to usurp the prerogatives of the Legislature. This we will not do.
Accordingly, we interpret the provisions of § 13(l)(n) as not providing for exemption from disclosure of communications of independent consultants to a public body.
Affirmed. No costs, a public question.
We are not faced with the question of the equity of the state’s refusing to deliver a copy of the report to plaintiff after promising to do so in exchange for plaintiffs cooperation in Wagner’s investigation. We decline to speculate on whether this could give plaintiff a basis for relief outside of the foia.
MCL 15.232(b); MSA 4.1801(2)(b). | [
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J. P. Swallow, J.
On January 13, 1984, defendant pled guilty to larceny in a store, MCL 750.360; MSA 28.592, and attempted larceny in a store, MCL 750.360; MSA 28.592 and MCL 750.92; MSA 28.287. On February 6, 1984, defendant was placed on five years probation. As a condition of his probation, defendant was ordered to the Rubicon/Odyssey House, a state-licensed residential drug rehabilitation program. He entered the Rubicon/Odyssey House in Detroit on March 1, 1984, and was subsequently transferred to the Rubicon/ Odyssey House in Flint, where he left without proper authorization on August 6, 1984. Subsequently, defendant was ordered to maintain his residence at Bay Fresh Start, a halfway house, and comply with all the rules, regulations and requirements of that program. On February 12, 1985, a violation of probation petition was initiated alleging violation of the rules of the Bay Fresh Start program for failing to return to the facility on February 12, 1985. On February 28, 1985, defendant was found in violation of the probation order and was resentenced on June 4, 1985, at which time his probation was reinstated and he was released from Bay County Jail.
On July 30, 1985, a petition and bench warrant for violation of probation was signed by the circuit court. The petition alleged that defendant had been involved in criminal activity, to wit: indecent exposure and larceny from a store. On September 6, 1985, defendant was sentenced for both convictions for which probation was imposed, from thirty-two to forty-eight months for larceny in a building, and from sixteen to twenty-four months for attempted larceny in a building. The sentencing judge ordered that the 277 days defendant spent in jail be credited towards his sentence, but refused to give credit for additional time defendant spent in Rubicon/Odyssey House and Bay Fresh Start.
Defendant raises two issues on appeal. One, defendant claims that the sentences imposed should shock the conscience of this Court. See People v Coles, 417 Mich 523, 550; 339 NW2d 440 (1983). Second, defendant contends that he had a statutory right to credit for time served at Rubicon/Odyssey House and Bay Fresh Start.
The sentences imposed do not shock the conscience of this Court. As reasons for the sentences imposed, the trial court took note of the unsuccessful attempts to reform defendant through probation, the need to protect society, and the need to deter others from like conduct. Given defendant’s record of convictions for larceny offenses, defendant’s long-standing substance abuse problem, and defendant’s failure to complete the Rubicon program, we concur in the trial court’s judgment that defendant was in need of rehabilitation. Defendant’s prior record and inability to reform through means other than incarceration justified substantial incarceration. The sentences imposed by the trial court do not evidence an abuse of discretion which shocks the conscience of this Court.
This Court finds much more troublesome defendant’s contention that he is entitled to credit for time spent at the Rubicon House and Bay Fresh Start program. At the heart of the present controversy lie this state’s probation statutes, most particularly MCL 771.3; MSA 28.1133, which provides in relevant part:
(2) As a condition of probation, the court may require the probationer to do 1 or more of the following:
(a) Be imprisoned in the county jail for not more than 12 months, at the time or intervals, which may be consecutive or nonconsecutive, within the probation as the court may determine. However, the period of confinement shall not exceed the maximum period of imprisonment provided for the offense charged if the maximum period is less than 12 months.
Q)) Pay immediately or within the period of his or her probation, a fine imposed at the time of being placed on probation.
(c) Pay costs pursuant to subsection (4).
(d) Pay restitution to the victim or the victim’s estate.
(e) Engage in community service.
(4) The court may impose other lawful conditions of probation as the circumstances of the case may require or warrant, or as in its judgment may be proper. If the court requires the probationer to pay costs, the costs shall be limited to expenses specifically incurred in prosecuting the defendant or providing legal assistance to the defendant and probationary oversight of the probationer.
Defendant contends that he is entitled to credit for any court-ordered confinement, whether that confinement is in the county jail pursuant to subsection (2)(a) or as an "other condition” of probation pursuant to subsection (4). Defendant relies on the sentencing credit statute, MCL 769.11b; MSA 28.1083(2), and People v Stange, 91 Mich App 596; 283 NW2d 806 (1979), in which this Court held that time spent at Rubicon House prior to sentencing must be credited pursuant to the sentencing credit statute. Alternatively, defendant cites People v Winchell, 143 Mich App 164; 371 NW2d 514 (1985), lv den 424 Mich 878 (1986), in which this Court held that time spent in Bay Fresh Start as a condition of probation was required to be credited against defendant’s ultimate sentence.
The people counter that the jail credit statute has no application to the instant case, and that defendant’s proffered construction would work against the rehabilitative purpose of the probation statutes by limiting a trial judge’s alternatives with regard to rehabilitative programs and removing incentives for probationers to successfully complete probation programs.
Initially, we agree with the people that the sentence credit statute has no application to the instant case. The statute, MCL 769.11b; MSA 28.1083(2), provides: "Whenever any person is hereafter convicted of any crime within this state and has served any time in jail prior to sentencing . . . the trial court in imposing sentence shall specifically grant credit against the sentence for such time served in jail prior to sentencing.” Defendant’s court-required residency in Rubicon House and Bay Fresh Start was subsequent to sentencing in the instant case. For that reason, People v Stange, supra, cited by defendant, is distinguishable. In Stange, the trial court specifically delayed sentencing pursuant to MCL 771.1(2); MSA 28.1131(2) and ordered the defendant to Rubicon House in the interim.
In People v Winchell, supra, this Court held that time spent at Bay Fresh Start as a condition of probation must be credited against a defendant’s ultimate sentence under the sentence credit statute as time served "in jail” under that statute. See also People v Greene, 145 Mich App 580; 378 NW2d 553 (1985), lv den 424 Mich 873 (1986). As outlined above, we believe the sentence credit statute has no application to the facts here or in Winchell. To the extent it might be argued that court-required residency as a condition of probation prior to a sentence imposed following a probation violation is time served prior to sentencing, we must conclude that the Legislature did not intend credit for such time served.
MCL 771.4; MSA 28.1134 provides:
It is the intent of the legislature that the granting of probation to one convicted shall be a matter of grace conferring no vested right to its continuance, if, during the period of probation it shall appear to the satisfaction of the sentencing court that the probationer is likely again to engage in an offensive or criminal course of conduct, or that the public good requires revocation or termination of probation previously granted. ... In case such probation order is terminated or revoked the court may proceed to sentence such probationer in the same manner and to the same penalty as it might have done if such probation order had never been made. [Emphasis added.]
Clearly the statute evinces a legislative intent to permit, upon revocation of probation, the imposition of full punishment absent consideration of any previously imposed condition of probation. That MCL 771.4; MSA 28.1134 should control over the sentence credit statute cannot be disputed. When two statutes encompass the same subject matter, one being general and the other specific, the latter will control. People v Shaw, 27 Mich App 325, 326; 183 NW2d 390 (1970), lv den 385 Mich 760 (1971).
The Legislature’s pronouncement that sentencing subsequent to probation violation may proceed "in the same manner and to the same penalty as it might have been if such probation order had never been made” is not without stricture, however. In People v Sturdivant, 412 Mich 92; 312 NW2d 622 (1981), the Michigan Supreme Court, relying on the double jeopardy clause as construed in North Carolina v Pearce, 395 US 711; 89 S Ct 2072; 23 L Ed 2d 656 (1969), held that time spent in the county jail as a condition of probation, MCL 771.3(2)(a); MSA 28.1133(2)(a), must be credited against a defendant’s sentence upon sentencing following probation violation.
In North Carolina v Pearce, the United States Supreme Court held that multiple prison sentences for the same crime placed a defendant in double jeopardy by twice punishing him for a single crime, and that defendants must be credited for any jail time exacted for the same offense.
The larceny statute under which defendant was prosecuted provides a maximum sentence of "imprisonment” upon conviction. Neither the Pearce Court nor the Sturdivant Court addressed whether required residency at a rehabilitative center constituted a jail or prison term which requires credit under the double jeopardy clause.
We conclude that where our Legislature has evinced an intention that restrictive conditions of probation need not be considered upon subsequent sentencing of a probation violator, required residency at rehabilitative centers need not be credited against a subsequent sentence of imprisonment under the double jeopardy clause. In short, no double punishment has been imposed under the statutes. Rehabilitative centers are not jails. Their purpose is structured rehabilitation and treatment, not incarceration.
In the instant case, defendant’s ordered residency at the state-licensed Rubicon/Odyssey House was clearly rehabilitative. By defendant’s own admission, he was a longtime substance abuser and was also professionally diagnosed as alcoholic and cannabis dependent with a recommendation of placement in a residential treatment facility. The fact that the intensive nature of the program offered at Rubicon/Odyssey House requires residency does not entitle defendant to credit. Such a construction would effectively turn the obvious rehabilitative purpose of the probation statutes on its head. A defendant in need of intensive rehabilitation in a residential program would have little incentive to complete the program and, therefore, trial judges would have little incentive to utilize such programs as an alternative to prison. Defendant is entitled to no credit for time spent at Rubicon/Odyssey House.
The present record, however, is not sufficient for us to assess whether defendant’s confinement to Bay Fresh Start was for structured rehabilitation and treatment, or mere incarceration. Accordingly, on this issue, this Court remands this matter to the circuit court for development of a record if the trial court is inclined to deny credit for time spent at Bay Fresh Start, detailing the purpose of the Bay Fresh Start program, especially as applied to defendant, the restrictions which were placed on defendant there, and the trial court’s intended purpose in ordering defendant’s residence there. In determining whether defendant is entitled to credit for time spent at Bay Fresh Start, the trial court shall weigh the above factors and determine whether Bay Fresh Start offered defendant structured rehabilitation and treatment or a mere substitute for incarceration.
Defendant’s sentence without credit for time spent in Rubicon/Odyssey House is affirmed, but we remand for resentencing. Upon resentencing, the trial court, in accordance with this opinion, may either grant or deny credit for time spent at Bay Fresh Start. We retain no further jurisdiction.
MacKenzie, J., concurred. | [
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M. E. Kobza, J.
Defendant and her former husband, James Raleigh, applied to plaintiff on March 12, 1973, for issuance of a Visa credit card. A joint account was subsequently opened with a $500 credit limit. Defendant and her former husband were twice approved for increases in credit to a limit of $2,000. On April 30, 1978, a judgment of divorce dissolved the marriage between defendant and James Raleigh. The outstanding balance on the Visa account was $3310.14.
James Raleigh’s obligation to plaintiff was discharged in bankruptcy on July 15, 1980. Plaintiff filed suit on June 4, 1984, seeking to recoup the principal and interest on the account, which then totaled $5892.60.
The matter was tried before a jury in the district court. On defendant’s ^request and over plaintiffs objection, the trial court instructed the jury that defendant was liable only to the extent her separate estate received benefit from the Visa indebtedness. See MCL 557.52; MSA 26.182, MCL 557.53; MSA 26.183. The jury rendered a verdict of no cause of action. The circuit court affirmed the district court.
Plaintiff sought leave to appeal to this Court, contending that defendant was personally liable on the entire debt as cosignor of the Visa application. We granted leave to appeal.
This case involves three issues dealing with the limited liability formerly granted married women entering into joint obligations with their husbands, instructed on by the trial court below. MCL 557.52; MSA 26.182 and MCL 557.53; MSA 26.183, repealed by 1981 PA 216, MCL 557.21 et seq.; MSA 26.165(1) et seq., effective March 31, 1982. The parties present three issues as alternative means of resolving this appeal:
(1) whether Const 1963, art 10, § 1 abolished the limited liability granted married women entering joint obligations with their husbands by the former act,
(2) whether the new act, 1981 PA 216, MCL 557.21 et seq.; MSA 26.165(1) et seq., which treats the property of married women the same as any other person in all respects, may be given retroactive effect to make defendant liable on the joint obligation entered with her husband, and
(3) whether defendant’s entering into an obligation of joint liability at a time when this Court had held that married women were not liable from their separate estates for joint obligations with their husbands prevents retroactive application of a ruling to the contrary. We address the above issues in order.
We do not address an issue of first impression to this Court when we seek to determine whether Const 1963, art 10, § 1 abolished the limited liability granted married women entering joint obligations with their husbands by MCL 557.52; MSA 26.182, MCL 557.53; MSA 26.183. However, we do hope to put to rest the confusion surrounding the issue, evidenced by a split in this Court. Compare City Finance Co v Kloostra, 47 Mich App 276; 209 NW2d 498 (1973) (limited liability retained by 1963 Constitution), and Michigan National Leasing Corp v Cardillo, 103 Mich App 427; 302 NW2d 888 (1981), lv den 412 Mich 857 (1982) (limited liability enjoyed by married women abolished by 1963 Constitution).
MCL 557.52; MSA 26.182 and MCL 557.53; MSA 26.183, 1917 PA 158, §§ 2, 3, as amended by 1929 PA 287, provided:
Hereafter married women shall be possessed of the power and capacity, and it shall be competent for them to bind and makes [make] themselves jointly liable with their husbands upon any written instrument as hereinafter provided. Said liability to extend, however, only to the property described in the following section.
Hereafter the real estate of the husband and wife owned by them as tenants by entirety, or the real estate acquired by either as survivor of the other, or in the event of divorce the interest of either in real estate which was previously owned by them as tenants by the entirety, shall be liable to seizure and sale on execution, and all personal property and choses in action owned by husband and wife jointly with right of survivorship therein, shall be subject to writ of garnishment and all other process provided by law, in satisfaction of any judgment which has been recovered against the persons who were at the time of the execution of such written instrument signed by both. In case the wife is the survivor, or in case the husband and wife have been divorced prior to the recovery of the judgment, a judgment against the wife may be satisñed only out of such property. [Emphasis added.]
Article 10, § 1 of the 1963 Constitution provides:
The disabilities of coverture as to property are abolished. The real and personal estate of every woman acquired before marriage and all real and personal property to which she may afterwards become entitled shall be and remain the estate and property of such woman, and shall not be liable for the debts, obligations or engagements of her husband, and may be dealt with and disposed of by her as if she were unmarried. Dower may be relinquished or conveyed as provided by law. [Emphasis added.]
Plaintiff contends that the limited liability instructed on by the trial court is a "disability of coverture” abolished by the 1963 Constitution. Defendant responds that the limited liability instructed on is not a disability of coverture, as contemplated by the 1963 Constitution, but is a "defense of coverture” granted to married women by the Legislature.
At common law, by her coverture (marriage), a woman ceased to have control of her actions or her property, which became subject to the control of her husband. Kloostra, supra, pp 282-283. Through legislative enactments the control of a woman’s earnings and personal property were placed in her. Kloostra, pp 283-284, quoting Sierra v Minnear, 341 Mich 182, 186-187; 67 NW2d 115 (1954). Part of the distinct treatment of a woman’s property was retained in the statutes at issue, which nowise limit a woman’s control of her property, but limit her liability for obligations jointly undertaken with her husband.
Because Kloostra, supra, is the only precedential authority from this Court analyzing in detail the effect of Const 1963, art 10, § 1 on the statutes at issue, our analysis begins there.
In Kloostra, the Court examined the comments of five delegates to the constitutional convention during the debate regarding a constitutional provision to abolish the disabilities of coverture. Kloostra, 47 Mich App 285-289. The Kloostra Court then concluded that the constitutional provisions sought to grant married women the full right to control their property, i.e., abolished the "disabilities” of coverture, while protecting a woman’s separate estate from joint obligations in case of her husband’s death, incapacity, or abandonment of family responsibility, i.e., retained for married women a "defense” of coverture.
Our review of the comments which the Kloostra Court found to endorse the "protection” of a married woman’s separate estate leaves us unconvinced that the delegates commenting thereon intended any greater protection of women than the total abolition of coverture, i.e., abolition of the common law as it related to a woman’s control of her separate estate. See Kloostra, pp 287-288. Nor do we believe that the comments the Kloostra Court found evidence the delegates’ intent to electioneer in regard to the interests of women, 47 Mich App 285-286, and to render the above statutes constitutional, 47 Mich App 289, necessarily endorse the extra protections the Kloostra Court found they did.
More importantly, constitutional debates are illuminating, but not decisive with regard to the meaning of constitutional provisions. It is the constitutional language and "Committee Comments” by the delegates which voters have before them when voting upon a new constitution. Comments made during the constitutional debate thus must be placed in perspective, as mere individual expressions of concepts as the individual speakers perceive them. See Regents of the University of Michigan v Michigan, 95 Mich 52; 235 NW2d 1 (1975). A court should resort to the constitutional debates only in the absence of guidance in constitutional language and convention comments, as when a court finds in the debates a recurring thread or explanation binding together the whole of a constitutional concept. Id.
As outlined above, we have found no common thread in the debates. We move to the language of the constitutional provisions at issue.
Courts construe constitutional language within its "common understanding” by considering the circumstances surrounding its adoption. Butcher v Dep’t of Treasury, 141 Mich App 116; 366 NW2d 15 (1984). Every statement in the constitution must be interpreted in light of the whole document. Each provision is of equal integrity and none must be construed so as to nullify or substantially impair another. People v Blachura, 390 Mich 326; 212 NW2d 182 (1973).
When addressing the former rule of construction, the trial court concluded that the term "disabilities of coverture” had no meaning discernible by those adopting the 1963 Constitution, the electorate. While we are inclined to agree, attempted construction of the provision should not have ended there.
Of special significance here, the 1963 Constitution guaranteed for the first time equal protection of the laws. Const 1963, art 1, § 2. The gender-based classification contained in MCL 557.52; MSA 26.182, MCL 557.53; MSA 26.183, which exempted a married woman from liability for joint obligations with her husband to the extent she held properties separate from her husband was of dubious utility in its manifest purpose of protecting that class of persons from the predations of their husbands and their husbands’ creditors.
To the extent this Court recognizes that the former statutes operated to favor needy women who, as a general rule, earn less than their male counterparts, or oftentimes do not work outside the home, we find that purpose an insufficient reason to support a gender-based classification that denigrated the efforts of women who contributed to family finances and denied equal protection to husbands. See Weinberger v Weisenfeld, 420 US 636, 645; 95 S Ct 1225, 1232; 43 L Ed 2d 514, 523 (1975).
We believe the debate oratory by delegate Ann Donnelly, quoted by the Kloostra Court, 47 Mich App 287, supports our conclusion that art 10, § 1 was perceived by the delegates to advance equal protection of the laws. We conclude that art 10, § 1, abolishing the disabilities of coverture, sought merely to enhance a married woman’s right to get credit; it did not constitutionalize or preserve that statute providing married women an opportunity to avoid liability normally arising from the undertaking of a joint obligation.
This Court need not discuss the issue of retroactivity of 1981 PA 216 since, by our decision in interpreting art 10, § 1 of the Constitution, the retroactivity of that statute is irrelevant. Giving effect to a constitutional provision adopted earlier than the statute, which provision could obligate the defendant from the time of the adoption of the Constitution, makes reference to any later adopted statute unnecessary. The Constitution obviously prevails. The issue of retroactivity of the above statute will not change the outcome.
Lastly, we confront defendant’s claim that, even were we to hold, as we have, that art 10, § 1 of the 1963 Constitution abolished the limited liability granted married women in MCL 557.52; MSA 26.182, MCL 557.53; MSA 26.183, our holding should not affect defendant’s liability as construed below since Kloostra, supra, was the law announced by this Court when defendant entered into the joint obligation with her husband.
Constitutional provisions dealing with the impairment of contracts have no application here. Trust Lake Shooting & Fishing Club v Louisiana, 224 US 632; 32 S Ct 577; 56 L Ed 924 (1912). Rather, the proposition defendant posits limits courts from affecting, on principles of equity and justice, contractual or other rights obtained in reliance on prior court decisions. See Gentzler v Constantine Village Clerk, 320 Mich 394, 398-399; 31 NW2d 668 (1948). We believe that rule has no proper application here.
Initially, we note that Kloostra, supra, was not appealed to the Supreme Court. The rule asserted by defendant normally applies only to rules of law announced by courts of last resort. Gentzler, supra. Otherwise, a party is generally entitled to adhere to what it believes to be the correct interpretation of a statute, contrary interpretations of intermediate appellate courts aside, and to reap the benefits of that adherence if it proves to be correct, except when bound to the contrary by a final judgment in a particular case. United States v Donnelly, 397 US 286; 90 S Ct 1033; 25 L Ed 2d 312 (1970).
Second, while perhaps reliance may be presumed in the absence of proof to the contrary, defendant’s testimony at trial reveals that she placed no reliance on the limited liability of married women when she entered into the joint obligation at issue with her husband. Rather, defendant was under the impression that her husband, as the only employed person in the household signing the application and as head of the household, was solely liable on all charges to the account. Contrary to the statutes on which defendant seeks to rely, defendant felt that only her husband was liable for charges made to the account. Her reliance did not depend on the distinction between a "disability” and "defense” of coverture carved out by the Kloostra Court.
Reversed and remanded for new trial.
We choose not to reproduce the remarks of delegates to the constitutional convention quoted in Kloostra. However, those quotations are incorporated herein by reference. | [
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M. R. Knoblock, J.
Plaintiff appeals as of right from an order granting summary disposition in favor of defendants and awarding defendants costs and attorney fees.
Pursuant to a written contract, on September 5, 1978, plaintiff sold to defendants certain personal business property and a route list. By the terms of the sales agreement, defendants were obligated to make monthly payments on the unpaid balance of the purchase price totaling $235,200, with the unpaid principal balance to bear interest at the rate of nine percent per annum until January, 1980, then ten percent per annum until July 1, 1981, and then ten and one-half percent per annum until fully paid. Defendants signed an affidavit on the date of the sale stating that they acknowledged the Michigan usury laws, that they were making the promissory note for "business purposes” and acknowledging their understanding that an exemption existed pursuant to which the promissory note would be exempt from the usury limitations. Defendants made regular payments in accordance with the agreement until on or about March 11, 1985, at which time the principal balance then owing plaintiff was $104,492.91. At that time, defendants advised plaintiff that the agreed-upon interest rate provided for in the promissory note was usurious and declined to make any further payments.
In November, 1985, plaintiff commenced suit in circuit court seeking an affirmation by the court as to the balance due on the promissory note and a declaration that the note did not violate the usury statute. The complaint also sought a judgment against defendants for the balance due on the note and a foreclosure of plaintiffs lien on the personal property. On May 21, 1986, the trial court granted defendants’ motion for summary disposition and, pursuant to MCL 438.32; MSA 19.15(2), awarded defendants costs and attorney fees totaling $4,263.75.
The general usury statute provides for a maximum lawful rate of interest of seven percent per annum. MCL 438.31; MSA 19.15(1). Plaintiff claims on appeal that the general usury statute is inapplicable to the note in question because it falls under the "business entity” exceptions contained in MCL 438^61; MSA 19.15(71) which provides:
(1) As used in this act "business entity” means: (a) A corporation, trust, estate, partnership, cooperative, or association; or (b) A natural person who furnishes to the extender of the credit a sworn statement in writing specifying the type of business and business purpose for which the proceeds of the loan or other extension of credit will be used, but the exemption provided by this act does not apply if the extender of credit has notice that the person signing the sworn statement was not engaged in the business indicated.
(2) Notwithstanding the provisions of the Act No. 326 of the Public Acts of 1966, as amended, being sections 438.31 to 438.33 of the Michigan Complied Laws, but subject to any other applicable law of this state or of the United States which regulates the rate of interest, it is lawful in connection with an extension of credit to a business entity by a state or national chartered bank, insurance carrier, or finance subsidiary of a manufacturing corporation for the parties to agree in writing to any rate of interest.
(3) Notwithstanding the provisions of Act No. 326 of the Public Acts of 1966, it is lawful in connection with an extension of credit to a business entity by any person other than a state or nationally chartered bank, insurance carrier, or finance subsidiary of a manufacturing corporation for the parties to agree in writing to any rate of interest not exceeding 15% per year.
The trial court, focusing on subsections (1) and (2) of the statute concluded that, although defendants qualified as a "business entity” as defined in section (1), the exemption was inapplicable because plaintiff was not one of the institutions enumerated in section (2). Apparently neither counsel nor the trial court were aware of the 1983 amendment to the statute which added subsection (3), which, in our view, is clearly applicable to the note in question. The amendment was enacted some five years after the note was executed but two years prior to defendants’ assertion that the interest rate was usurious and three years prior to the trial court’s grant of summary disposition.
In Michigan Mobile Homeowners Ass’n v Bank of the Commonwealth, 56 Mich App 206; 223 NW2d 725 (1974), lv den 393 Mich 809 (1975), this Court held that the defense of usury is not a vested right and, accordingly, may be extinguished by statute after it arises and before it is asserted. In that case, plaintiffs had commenced a class action suit on behalf of themselves and other purchasers of mobile homes, who financed their purchases by means of a sales contract bearing interest at a rate greater than seven percent per annum and held by the defendant financial institutions, alleging that the interest rates were usurious. During the pendency of the action in the trial court and prior to entry of judgment, 1972 PA 191 was enacted, effective June 21, 1972, which changed certain statutory language and clearly brought the retail sales of mobile homes within the provisions of the Retail Installment Sales Act, MCL 445.851; et seq.; MSA 19.416(101) et seq., and thereby exempt from the general usury statute. In affirming the trial court’s grant of summary judgment in favor of defendants, this Court held that any rights held by plaintiffs under the general usury statute were extinguished by the amendment to the Retail Installment Sales Act. Quoting from Lahti v Fosterling, 357 Mich 578, 588-589; 99 NW2d 490, 495 (1959), this Court stated:
The question of determining what is a vested right has always been a source of much difficulty to all courts. The right which defendants claim sprang from the kindness and grace of the legislature. It is the general rule that that which the legislature gives, it may take away. A statutory defense, or a statutory right, though a valuable right, is not a vested right, and the holder thereof may be deprived of it. [56 Mich App 219-220.]
Similarly, we hold that any defenses under the general usury statute that may have been available to defendants prior to the amendment were extinguished thereby and were unavailable to defendants in this litigation. The order of summary disposition is reversed and the order awarding costs and attorney fees is vacated. In light of our holding we find it unnecessary to address the remaining issue raised by plaintiff on appeal. This case is remanded to the trial court for further proceedings consistent with this opinion.
Reversed and remanded. No costs, public question being involved. | [
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Per Curiam.
Plaintiff appeals from an order of the Roscommon Circuit Court which held that defendant, Equitable Life Assurance Society, was entitled to deduct from the group disability benefits it was paying plaintiff the nonmedical recovery amount plaintiff had received from the redemption of his worker’s compensation claim.
Plaintiff is an insured under a group disability policy with defendant. Sometime in 1981, plaintiff suffered a disability and began collecting periodic group disability benefits from defendant. In July, 1981, plaintiff also filed a workers’ compensation claim. However, as plaintiff states in his appellate brief, he was concerned that he would be unable to prove that his disability arose out of and in the course of his employment. Plaintiff therefore agreed to redeem his claim and settled for a lump sum payment of $50,000. The redemption agreement was approved by the hearing referee and the proceeds were allocated as follows: $6,421 to plaintiff’s attorney, $30,000 for medical expenses and $13,579 "directly to the plaintiff, being the balance.”
After plaintiff redeemed his workers’ compensation claim, defendant reduced the amount of plaintiff’s monthly benefit until a setoff was achieved of the $13,579 which the redemption order had allocated to nonmedical recovery. Defendant asserted that the setoff was permitted undér the terms of plaintiff’s group disability policy, which provided in part:
Your maximum monthly benefit will be reduced by any benefits you are eligible to receive:
(d) As a periodic benefit for disability under:
(ii) Any governmental agency or program or coverage required or provided by law.
If a single sum payment is made as a commutation of, or substitute for, any periodic benefits or payments referred to under "Income from other sources”, such payment shall be deemed to have been made in the amounts ánd for the period which would have been applicable in the absence of such single sum payment.
On January 14, 1985, plaintiff filed a complaint in Roscommon Circuit Court seeking recovery of the funds defendant had setoff. Defendant filed a motion for summary judgment based upon the policy language of the group disability plan. The circuit court granted defendant’s motion in an order entered January 24, 1986. Plaintiff appeals.
On appeal, plaintiff raises essentially two arguments. First, plaintiff argues that the $13,579 amount he received as nonmedical recovery does not fall within the policy exclusion upon which defendant relies. Plaintiff argues that the redemption agreement is neither a finding of fact nor an admission of liability, citing Solo v Chrysler Corp (On Rehearing), 408 Mich 345; 292 NW2d 438 (1980). In other words, plaintiff argues that there has never been a decision that plaintiff was entitled to receive workers’ compensation benefits because there was no factual determination that his injury arose out of or in the course of his employment. Therefore, plaintiff argues that there was no evidence that the redemption money was "provided by a 'governmental agency or program.’ ”
This argument is without merit. The benefits plaintiff received were authorized by the Bureau of Workers’ Disability Compensation and therefore were received under a government "program or coverage required or provided by law.” The contractual language does not require that the benefits be for an injury which arose out of or in the course of his employment. The contract states only that the recipient be "eligible” to receive benefits under a government program. The fact that plaintiff received benefits under the workers’ compensation program is sufficient proof that he was "eligible” to receive such benefits. The fact that plaintiff received benefits as a result of a redemption agreement, rather than as a result of an administrative hearing in which liability was determined factually, does not mean plaintiff did not receive benefits under a government prograna. The redemption provision, MCL 418.835; MSA 17.237(835), is located within the Workers’ Disability Compensation Act and is an integral part of it.
Next, plaintiff argues that the contractual language "[a]ny governmental agency or program or coverage required or provided by law” is ambiguous and ought to be construed against the insurer. We find no ambiguity. Workers’ compensation clearly falls within this provision.
Affirmed. | [
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Per Curiam.
Plaintiff Susan Pomranky filed this suit in Midland Circuit Court alleging sex discrimination in violation of the Civil Rights Act, MCL 37.2202; MSA 3.548(202), and two counts of breach of contract. A bench trial was held April 1, 1985. At the close of plaintiff’s proofs, defendant moved for involuntary dismissal pursuant to MCR 2.504(B)(2). The trial court found for defendant on all counts. Plaintiff appeals as of right, raising as error only the trial court’s decision on the discrimination claim.
Plaintiff was hired by defendant as a billing clerk in the fall of 1979. Defendant is a subcontractor to Bechtel Company, the principal contractor in the construction of a nuclear electric generating plant in Midland. Plaintiff requested, and was granted, a ninety-day maternity leave to begin in May, 1980. Two women were hired to do the secretarial and payroll work, and plaintiff trained them before she left. A day or so before her leave she asked her supervisor, Russell McCarley, whether the women were permanent employees. McCarley said they were, but assured her that there would be a job for her when she returned. He told her she would have other duties, including supervising the other secretaries and office manager duties. According to plaintiff, McCarley told her that the pay for an office manager was $8.50 per hour.
Plaintiff returned two months .early from her maternity leave and spoke with McCarley regarding the office manager job. McCarley told her that the office was under a stop-work order and that no promotions could be given at that time. After her return, plaintiff supervised the other two secretaries and her duties changed, although her title did not. According to plaintiff, McCarley never mentioned any special qualifications or requirements for the office manager’s position.
Later that summer, Joseph Sheehan came to the office and interviewed with McCarley. McCarley told plaintiff that Sheehan was interested in a billing clerk job. McCarley gave her a letter to type which submitted Sheehan’s name to Bechtel for the billing clerk job; Bechtel had to approve hiring decisions. Later McCarley gave the letter to another secretary to change the offer to office manager.
When plaintiff saw the revised letter, she was upset and asked McCarley which position Sheehan would have. McCarley told her that Sheehan would be office manager. Plaintiff asked why Sheehan was hired instead of her, and McCarley said it was felt that the job needed "the firm hand of a man” so there would not be any pettiness or bickering in the office. He also indicated that plaintiff would train Sheehan for the position. The conversation grew heated and McCarley told plaintiff that if she did not like it she could go; plaintiff understood McCarley to mean she was fired.
McCarley’s memory of the events was "fuzzy.” He did not remember any conversation with plaintiff about becoming an officer manager. McCarley testified that he had interviewed Sheehan for the manager position, not a billing clerk position, and he did not remember the letter which proposed Sheehan for a billing clerk position, even after the letter was admitted into evidence. He did not remember telling plaintiff that he hired Sheehan because he needed a man for the job; he stated that he hired Sheehan because of his accounting background. McCarley testified that he did not look into plaintiff’s qualifications for the job and did not know whether she had any accounting experience. He never compared plaintiff’s and Sheehan’s qualifications before hiring Sheehan.
Ralph Usinger, McCarley’s assistant, testified at trial that plaintiff was a good employee and that he and McCarley had discussed plaintiff as a candidate for the officer manager position because she was effectively doing that job already. McCarley never indicated to Usinger that plaintiff was not qualified for the job, nor did McCarley mention any particular requirements.
At the close of plaintiffs proofs, defendant moved for involuntary dismissal pursuant to MCR 2.504(B)(2). That court rule allows the judge, in an action tried without a jury, to determine the facts and render a judgment against the plaintiff after the presentation of plaintiffs proofs. The judgment must include findings of fact and conclusions of law and is considered a judgment on the merits.
In the instant case the trial judge concluded that the facts were not seriously in dispute. He found plaintiff did have conversations with McCarley about the office manager position. He accepted plaintiff’s testimony regarding the preparation of the letters about Sheehan and he found that Mc-Carley did make a statement to the effect that the office needed the "firm hand of a man” to control pettiness and bickering. Turning to his conclusions of law, the trial judge found that McCarley’s statement was evidence of discrimination, but also that it was not sufficient evidence, and he found for defendant.
On appeal plaintiff claims that the trial court erred in concluding that she had not proven sex discrimination in violation of the Civil Rights Act. We agree.
The findings of fact made by the trial judge were supported by the evidence and were not clearly erroneous. We disagree, however, with the court’s legal conclusions.
The Civil Rights Act provides in pertinent part:
(1) An employer shall not:
(a) Fail or refuse to hire, or recruit, or discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status. [MCL 37.2202; MSA 3.548(202).]
The act defines "employer” for purposes of the act as "a person who has 1 or more employees, and includes an agent of that person.” MCL 37.2201(a); MSA 3.548(201)(a).
To establish a prima facie case of sex discrimination, a woman must show that she is a member of a class protected under the statute, and that, for the same or similar conduct, she was treated differently than a man. Slayton v Michigan Host, Inc, 144 Mich App 535, 541; 376 NW2d 664 (1985); Jenkins v Southeastern Michigan Chapter, American Red Cross, 141 Mich App 785, 793; 369 NW2d 223 (1985). After a plaintiff has established a prima facie case by a preponderance of the evidence, the burden of proof shifts to the defendant employer to articulate a legitimate, nondiscriminatory reason for its actions. Slayton, p supra, 541; Jenkins, supra, p 793. If the defendant carries this burden, the plaintiff then has the opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons for rejecting the plaintiff, but were merely a pretext for discrimination. Slayton, supra, pp 541-542; Clark v Uniroyal Corp, 119 Mich App 820, 825; 327 NW2d 372 (1982):
A plaintiff may succeed in establishing that the defendant’s proffered reason was a pretext — that is, establishing that he was actually the victim of intentional discrimination — either directly by persuading the trier of fact that a discriminatory reason more likely motivated the employer or, indirectly, by showing that the proffered reason is not worthy of credence.
In the instant case plaintiff did carry her burden. "An initial prima facie case of discrimination is established when the plaintiff proves by a preponderance of the evidence that [s]he applied for an available position for which [s]he was qualified but was rejected under circumstances giving rise to an inference of unlawful discrimination.” Clark, supra, pp 824-825; Anspach v Livonia, 140 Mich App 403, 407; 364 NW2d 336 (1985). Plaintiff is a member of a protected class under the Civil Rights Act and she testified that she requested the same job offered to Sheehan. Plaintiff also offered proof that she was told she was not given the job because she was female. Plaintiff offered evidence that the hiring agent of defendant employer said that she was not hired because the job needed the "firm hand of a man” to control pettiness and bickering in the office.
While plaintiff must show by a preponderance of the evidence that she was denied the promotion because of gender, she need not show that gender was the exclusive factor. Jenkins, supra, p 794. "Discrimination, whether based on race, religion, sex, or age, cannot be tolerated in a free society regardless of whether the objective sought thereby could be partially justified for other, legitimate reasons.” Gallaway v Chrysler Corp, 105 Mich App 1, 6; 306 NW2d 368 (1981), lv den 413 Mich 853 (1982). Plaintiff may recover if sex discrimination played a significant role in the decision to deny plaintiff the promotion, notwithstanding the presence of other, lawful considerations that also may have contributed to the decision. Gallaway, supra, p 6.
Accepting the trial court’s findings of fact, and after a review of the applicable law, we find that the trial court’s conclusions of law were erroneous. We reverse the trial court’s grant of involuntary dismissal on plaintiff’s discrimination count and remand for further proceedings.
Reversed in part and remanded. | [
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Shepherd, J.
This is a workers’ compensation appeal. The hearing officer awarded plaintiff compensation benefits for the closed periods April 23, 1983, to May 1, 1983, and June 19, 1983, to July 17, 1983. The Workers’ Compensation Appeal Board reversed. This Court originally denied plaintiff’s application for leave to appeal on July 25, 1985. The Supreme Court remanded the case on March 5, 1986, for consideration as on leave granted. Berger v General Motors Corp, 424 Mich 893 (1986). We reverse.
Plaintiff filed two appeals to the wcab, which were considered jointly. Only the second appeal is at issue.
Plaintiff filed his second petition for a hearing on May 13, 1983, alleging that on April 22, 1983, plaintiff developed a disabling condition caused by the constant repetitive use of his hands in gripping rails at his work. A hearing was held on January 24, 1984.
Plaintiff testified that "on and off” for ten years he installed stabilizer bars in trucks. When production requirements declined, however, plaintiff was assigned to various other jobs. Eventually he was placed in frame assembly. Plaintiff’s job was to pick up and drop rails on a hook with the assistance of another employee. Two rails were used for each frame. Each rail weighed 125 to 150 pounds and was approximately eight feet long. After the rails were dropped on the hook, plaintiff riveted metal parts to the rails in four places. Plaintiff had difficulty keeping up with the production line speed of fifty-two per hour. He com plained that his co-worker would drop the other end of the rail on the hook before plaintiff was ready, sending vibrations up the rail to plaintiffs hands.'He also had difficulty lining up the brackets to be attached to the rails. Plaintiff stated that the foreman would yell at him when he was too slow in performing his task because it slowed down or stopped the production line.
After a week and a half, plaintiff "started having trouble” with his hands. He would wake up in the middle of every night and "have to pound against the wall to get feeling in them.” He went to first aid at work two or three times and his hands were treated by being placed in a whirlpool. He was told after the third visit to file a claim for workers’ compensation benefits. Plaintiff received a medical evaluation from his family physician, Dr. House, who recommended that plaintiff not return to the rail pin-up job. Plaintiff also received a medical evaluation from the plant physician, Dr. Benkirk, who recommended that plaintiff be restricted to jobs requiring limited gripping for two weeks. Plaintiff ultimately went on sick leave from April 23, 1983, to May 2, 1983, because his hands were bothering him. While on sick leave, Dr. House treated plaintiff with some unspecified medication.
When plaintiff returned to work, he was assigned to a "prop shaft job,” which required installing and tightening two bolts on a shaft with an air gun. After six to seven weeks, plaintiff again started waking up in the middle of the night with a numbness in his hands. He also developed a stomach problem and came close to passing out on the assembly line. He took sick leave from June 19, 1983, to July 17, 1983. Plaintiff eventually returned to the stabilizer job and had not gone on sick leave up to the time of the hearing. He testified, however, that he still had trouble with his hands on occasion, resulting in a tingling feeling or absence of feeling and that he still pounded them on the wall in the night to return feeling to them.
Numerous documents were admitted by both parties with no objections. Included were Dr. House’s medical evaluations. These were introduced by defendant and consisted of responses on claim forms for accident and sickness benefits. In the April 25, 1983, evaluation, Dr. House stated "yes” in response to the question "In your opinion, is the patient’s disability caused by his work for General Motors or any other employer?” As explanation, Dr. House noted that the problem was from vibrations and gripping. In the section requesting diagnosis, Dr. House described a decrease in nerve sensation and "numbness in hands from use of vibrating tool grips.” On the June 22, 1983, evaluation, Dr. House again answered yes to the question regarding the cause of plaintiff’s disability and explained that the problem was from vibrations. He repeated his earlier diagnosis. On July 6, 1983, Dr. House also diagnosed acute anxiety reactions and hypoglycemia in a supplementary report on plaintiff’s claim for sickness and accident benefits.
The hearing officer awarded plaintiff benefits for both closed periods. The wcab reversed in a two-to-one decision. The majority indicated that, in the absence of medical depositions, all it had to evaluate was plaintiff’s testimony:
We do not doubt that plaintiff at one time had a problem with numbness in his hands but the testimony that he gave at trial does not convince us that it was related to his work. Just because its occurrence [sic] was contiguous with his job of picking up the rails does not show by a preponderance of the evidence that it was caused by this work. Moreover, the numbness was still present off and on during the time he was returned to the prop shaft job. There were no objective findings by the medical personnel at the plant and the treatment by Dr. House, whatever it was, was minimal to say the least. We believe the closed awards granted by the Administrative Law Judge were incorrect based on our review of his record and we hereby reverse. All benefits are denied.
Dissenting member Phelps would have affirmed on the basis of Dr. House’s statements in the evaluation, admitted into the record without limitation.
A claimant must prove his or her entitlement to workers’ compensation benefits by a preponderance of the evidence. Aquilina v General Motors Corp, 403 Mich 206, 211; 267 NW2d 923 (1978). The standard of appellate review of wcab decisions, however, is provided for by Const 1963, art 6, § 28. See Aquilina, supra, p 213, n 4. Fact-findings made by the wcab are conclusive in the absence of fraud if there is any competent evidence in the record to support them. Schaefer v Williamston Community Schools (After Remand), 150 Mich App 186, 190; 387 NW2d 856 (1986).
Where the wcab rejects undisputed controlling testimony in making its findings, this Court must reject those findings and apply the law to the evidence presented in the record. Cornish v Jackson & Tindle, Inc, 285 Mich 566, 569; 281 NW 329 (1938); Gacesa v Consumers Power Co, 220 Mich 338, 341; 190 NW 279 (1922). The wcab cannot draw inferences contrary to undisputed evidence. White v Revere Copper & Brass, Inc, 383 Mich 457, 462-463; 175 NW2d 774 (1970).
The evidence presented at the hearing consisted of plaintiffs testimony and the parties’ exhibits, including plaintiffs medical evaluations. No objections were made to the latter. As such, it was proper for the trier of fact to consider this evidence. Holford v General Motors Corp, 116 Mich App 488, 490-491; 323 NW2d 454 (1982). This evidence indicated that plaintiffs injury was caused by his employment and the gripping involved. The wcab never found that Dr. House’s evaluations or opinions, however cursory, were unworthy of belief. The wcab only indicated that his treatment of plaintiff was "minimal” and that plant medical personnel made no objective findings. Such findings by plant personnel and more substantial treatment by Dr. House were not requirements for recovery and were irrelevant to the issues before the wcab. As the wcab never rejected Dr. House’s evidence, at least for a proper reason, we are inclined to regard it as undisputed and controlling.
This is thus not a case such as Kido v Chrysler Corp, 1 Mich App 431; 136 NW2d 773 (1965), where the plaintiffs evidence was unrebutted but also unsupported. We recognize that the wcab is not "obliged to accept or extend verity to any expert opinion.” Fergus v Chrysler Corp (After Remand), 67 Mich App 106, 111-113; 240 NW2d 286 (1976), lv den 406 Mich 870 (1979). Had the wcab said that Dr. House’s evidence was not believable, our result would be different and we would defer to that finding. If the wcab disbelieved such evidence, however, it should have expressly said so, rather than leaving this Court to infer a rejection. If the wcab rejected the evidence, it apparently did so because of a preference for a different source of evidence (plant medical personnel) and a feeling that Dr. House’s subsequent treatment was insufficient. We do not believe the wcab should reject the evidence for such improper reasons. A strong presumption should exist in favor of evidence relied upon by both sides when the wcab does not expressly reject that evidence. Furthermore the wcab’s concern that the absence of evidence from plant medical personnel was of crucial importance is not well placed in light of the fact that it was the defendant employer who introduced the report of plaintiffs physician into evidence.
We therefore believe the wcab erred in reversing the decision of the hearing officer. We reverse and remand for reinstatement of the hearing officer’s award of workers’ compensation benefits.
Reversed and remanded.
D. L. Hobson, J., concurred. | [
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ON REMAND
Before: Danhof, C.J., and J. H. Gillis and M. J. Kelly, JJ.
Per Curiam.
The facts in this case are set forth at 140 Mich App 755; 366 NW2d 38 (1985) and at 427 Mich 447; 398 NW2d 343 (1986). We originally reversed the defendant’s convictions of possession with intent to deliver cocaine, MCL 333.7401(1) and (2)(a)(iv); MSA 14.15(7401X1) and (2)(a)(iv), and possession with intent to deliver marijuana, MCL 333.7401(1) and (2)(c); MSA 14.15(7401X1) and (2)(c). A majority thought that the warrantless ruse entry by a confidential police informant into defendant’s home violated defendant’s reasonable expectation of privacy and we therefore suppressed the fruits of the warrantless search. The Supreme Court, agreeing with Judge Gillis’ dissent, found that the warrantless ruse entry did not violate either the Fourth Amendment of the United States Constitution or Michigan Const 1963, art 1, § 11,for reasons which need no repeating here. The Court then remanded the cause to this Court for "consideration of the remaining issues”. The remaining issues are four and our examination of them finds no error requiring reversal.
i
Did the trial court err in finding the first search warrant valid?
The magistrate in this case issued the search warrant based upon a document entitled "Affidavit and complaint for the search warrant,” signed by Daniel P. Peppel as "affiant.” There are two pages to this document, only the first of which is signed. However, included on the first page are two sections in which Peppel directs the reader to an "attached affidavit,” in obvious reference to the second page. We conclude that, if the document is viewed as a whole and read in its entirety, the term "affiant” as used on both pages refers to the same individual whose signature has, in fact, been provided. Moreover, we conclude that the affidavit in question adequately establishes informant credibility and reliability of information. See People v Sherbine, 421 Mich 502; 364 NW2d 658 (1984). The trial court thus did not err in concluding that the first search warrant was valid.
n
Did the trial court err in finding items seized pursuant to the authority of the invalid second warrant admissible under the plain view doctrine?
Although the affidavit and complaint for the second search warrant are sufficiently detailed, the search warrant itself is blank. The trial court determined that the second search warrant was invalid but nevertheless held that the items seized under authority of the second warrant were admissible pursuant to the plain view doctrine. We agree. The police were justified in searching defendant’s closets and drawers under the authority of the first search warrant and thus had "prior justification for intrusion into the otherwise protected area” when they observed the items listed on the second warrant. Coolidge v New Hampshire, 403 US 443; 91 S Ct 2022; 29 L Ed 2d 564 (1971); People v Blackburne, 150 Mich App 156, 165; 387 NW2d 850 (1986), lv den 425 Mich 869 (1986).
hi
Did the trial court abuse its discretion in denying the motion to suppress statements made by defendant after he stated he did not understand his Miranda rights?
Detective William Tucker testified that, after he discovered a tray which contained a substance believed to be marijuana, he read defendant his Miranda rights from a card. Defendant said he did not understand his rights and Tucker told him the best thing he could do was not to say anything because anything he said could be used against him. Thereafter the officer asked him no more questions. Defendant then subsequently volunteered that he had some marijuana or grass in his bedroom. The trial court did not err in refusing to suppress defendant’s voluntary statements.
IV
Did the trial court err in denying defendant’s motion for a directed verdict?_
Defendant’s possession of the controlled substances was clearly established at trial and an intent to deliver may be inferred from the amount of controlled substance possessed. The court did not err in denying defendant’s motion for a directed verdict on this basis. See People v Ferguson, 94 Mich App 137, 151; 288 NW2d 587 (1979), and Wayne Co Prosecutor v Recorder’s Court Judge, 119 Mich App 159, 162-163; 326 NW2d 825 (1982).
Affirmed.
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). | [
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Per Curiam.
Defendant was charged with possession of cocaine with intent to deliver, second offense, MCL 333.7401(1) and (2)(a)(iv); MSA 14.15(7401)(1) and (2)(a)(iv). Defendant filed a pretrial motion to suppress evidence obtained from him pursuant to a search conducted without a warrant. That motion was denied by the trial court, after which defendant pled guilty to possession of less than fifty grams of cocaine, MCL 333.7403(1) and (2)(a)(iv); MSA 14.15(7403X1) and (2)(a)(iv). We affirm.
Defendant argues two issues on appeal. The first issue raises the constitutionality of the evidence against him; the second issue involves whether defendant’s guilty plea waived appellate review of the trial court’s decision denying defendant’s motion to suppress that evidence.
The second issue is dispositive of this matter and precludes this Court from rendering a decision as to the first issue. We hold that defendant’s unconditional guilty plea waived his right to appeal the denial of his motion to have evidence suppressed. People v New, 427 Mich 482; 398 NW2d 358 (1986).
The Michigan Supreme Court’s opinion in New was decided subsequent to defendant’s appeal to this Court. Thus, a third issue was raised at oral argument as to whether the New decision can be retroactively applied.
As a general rule decisions of Michigan appellate courts are to be given full retroactivity unless limited retroactivity is preferred where justified by (1) the purpose of the new rule, (2) the general reliance upon the old rule, and (3) the effect of full retroactive application of the new rule on the administration of justice. Tebo v Havlik, 418 Mich 350, 360-361; 343 NW2d 181 (1984); King v General Motors Corp, 136 Mich App 301, 306; 356 NW2d 626 (1984), lv den 422 Mich 871 (1985); People v Longwish, 109 Mich App 15, 18-19; 310 NW2d 893 (1981), lv den 413 Mich 887 (1982).
In applying the three-step analysis to the decision in New it should first be recognized that the Michigan Supreme Court did not establish a new rule of law. The New decision was a reaffirmation and clarification of an existing rule of law first announced in People v Alvin Johnson, 396 Mich 424; 240 NW2d 729 (1976), which stated that a plea of guilty waives all nonjurisdictional defects in the proceedings. Appellate decisions subsequent to Alvin Johnson, supra, have applied the rule, holding that a claim of unlawful search and seizure is waived by a plea of guilty. People v Blackburne, 150 Mich App 156; 387 NW2d 850 (1986); People v Kline, 113 Mich App 733; 318 NW2d 510 (1982); People v Ferrigan, 103 Mich App 214; 302 NW2d 855 (1981); People v Hill, 86 Mich App 706; 273 NW2d 532 (1978); People v Riley, 88 Mich App 727; 279 NW2d 303 (1979).
There was no old rule of law upon which the defendant could have relied. Defendant cites Alvin Johnson, supra, and People v Reid, 420 Mich 326; 362 NW2d 655 (1984), as an established rule of law that he could appeal an evidentiary ruling following his guilty plea. Commenting upon its decision in Alvin Johnson the Michigan Supreme Court stated:
Hence, the statement that the defense of the failure to suppress illegally obtained evidence and the defense of insufficient evidence at the preliminary examination are examples of claims which survive a guilty plea is obiter dictum. [New, supra, pp 489-490.]
Likewise, the Michigan Supreme Court commented upon its decision in Reid:
Reid did not modify the essential holding of Alvin Johnson, but rather provided a procedure (conditional guilty plea) in which a defendant may admit to a criminal act but challenge the state’s ability to present its case against him because of an alleged illegal search and seizure. [New, supra, p 491.]
Finally, in considering the third factor as to whether New should be retroactively applied, this Court has indicated that a purpose of clarifying existing law is sufficient for the retroactive application of a rule of law. People v Slager, 105 Mich App 593; 307 NW2d 376 (1981); People v Szymanski, 102 Mich App 745; 302 NW2d 316 (1981).
We hold that New is to be retroactively applied and that defendant by unconditionally pleading guilty, has waived his right to appeal the denial of the motion to suppress evidence.
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Per Curiam.
Plaintiff, Allen C. Ingle, appeals as of right from a judgment entered in favor of defendant Lillian E. Schurig in his action to quiet title in the estate of Clifford Matthews. Defendant Schurig cross-appeals an order entered July 30, 1985, in which the trial court denied her motion for attorney fees and costs. Defendant Thomas Musgrave is not a party to this appeal. We affirm both orders.
On January 24, 1984, plaintiff filed this action to quiet title in his capacity as administrator of the estate of Clifford Matthews, who died April 30, 1983. It is undisputed that from 1945 to her death in 1966 Clifford Matthews had been living with one Lillian Musgrave, also known as Lillian Matthews, and that the two had held themselves out to be husband and wife. Lillian Musgrave had married Thomas Musgrave, who left Lillian early in the marriage (late 1930’s) and was not heard from again until 1966. Lillian and Thomas Mus-grave had one daughter, Lillian Schurig. Defendant Schurig was eight years old when her mother took up residency with Clifford Matthews. Defendant Schurig testified that she had always considered Matthews to be her father inasmuch as she never knew her natural father. Defendant Schurig believed that Matthews, who had four natural children, viewed her as his daughter.
While they were together, Lillian Musgrave and Clifford Matthews acquired two parcels of property, one in Florida and one in Farmington, Michigan. The Florida property is deeded to "Clifford H. Matthews and Lillian E. Musgrave (now known as Lillian Matthews, wife of Clifford Matthews),” while the Michigan property is deeded to "Clifford H. Matthews and Lillian E. Matthews, his wife.” In February of 1966, Lillian Musgrave and Clifford Matthews contacted plaintiff in his capacity as an attorney and informed him that Thomas Musgrave was alive and residing in Canada. The two decided to draw up wills in order to defeat any claims on the part of Thomas Musgrave. Lillian Musgrave died intestate on February 6, 1966, only a few days after her visit to plaintiff.
Lillian Musgrave’s estate was filed in Oakland County Probate Court on June 13, 1966, and was closed by an order dated February 27, 1973. It is undisputed that a "Statement in Lieu of Final Account” had been filed by defendant on January 24, 1973, in which she stated:
That at the time of said appointment, it was your petitioner’s opinion that the decedent had an interest in a piece of real estate in Farmington; That your petitioner has since determined, along with the advice of counsel, that the possibility of proving that decedent had any interest in the property is so remote that it is not felt worthy of pursuing, and there are no other assets in the estate to be administered.
Clifford Matthews died ten years later, at which time his will, dated August 7, 1968, was submitted to the Oakland County Probate Court. Plaintiff was appointed personal representative of the estate, which was devised to Clifford Matthews’ four children. Lillian Schurig was not named in Matthews’ will. Shortly thereafter, plaintiff filed in circuit court this separate action to quiet title in favor of Matthews’ estate, asserting that Clifford Matthews had obtained clear title to both properties by adversely possessing them from February 6, 1966, until his death in April of 1983. Plaintiff thereafter filed two separate motions for summary judgment asserting that: (1) defendant had abandoned all claim to her mother’s property when she closed her mother’s estate; (2) defendant was precluded from asserting any interest in the property under a fifteen-year statute of limitations; and (3) defendant was barred under the statute of frauds from enforcing an alleged promise made to her by Clifford Matthews to devise real property. Defendant Thomas Musgrave executed a document entitled "Acknowledgment of Service and Consent to Entry of Judgment by Defendant Thomas Mus-grave Only,” in which he stated in relevant part "[t]hat he consents to the entry of a Judgment granting the relief prayed for in said complaint.” A consent judgment was entered in favor of plaintiff as against defendant Thomas Musgrave on December 11, 1984.
The case was submitted for mediation on October 30, 1984, resulting in an evaluation in favor of defendant. The panel recommended that defendant receive $5,000 from the Matthews’ estate. Defendant accepted the award and plaintiff rejected it. A bench trial was conducted resulting in the judgment in favor of defendant.
None of the issues raised by plaintiff on appeal merit reversal of the judgment entered by the trial court in this case. An action to quiet title is equitable in nature and is reviewed de novo. Stinebaugh v Bristol, 132 Mich App 311, 316; 347 NW2d 219 (1984). Plaintiff carries the burden of proving clear title to the property at issue, and it is only after plaintiff has made out a prima facie case that the burden of showing superior title shifts to the defendant. Id.; Boekeloo v Kuschinski, 117 Mich App 619, 628-629; 324 NW2d 104 (1982); 65 Am Jur 2d, Quieting Title, § 78, p 208. Where the case revolves around questions of fact, this Court gives due regard to the opportunity of the trial judge to assess the credibility of the witnesses, and we reverse findings of fact only where they are clearly erroneous. Stinebaugh, supra, citing Dunlop v Twin Beach Park Ass’n, Inc, 111 Mich App 261, 266; 314 NW2d 578 (1981).
The trial court made the following findings of fact at the conclusion of trial in this matter. Although defendant Schurig was aware of her mother’s interest in both parcels of property prior to 1973, she nevertheless closed her mother’s estate without properly disposing of these assets. Defendant Schurig was prompted to do so at the urging of Clifford Matthews, who said that he would devise the properties to defendant Schurig and his four children and in that way protect the interests of defendant Schurig. The trial court found that Clifford Matthews’ representations to defendant Schurig were false and that he knew them to be false when he made them, since he had already executed a will, after Lillian Musgrave’s death, devising all of his property to his natural children only. Based on Clifford Matthews’ false representations, however, defendant Schurig acquiesced in Matthews’ possession of the realty and made no effort to pursue her property interests as heir to Lillian Musgrave.
Contrary to plaintiff’s arguments on appeal, the trial court’s factual findings are adequately supported by the evidence developed at trial. Plaintiff introduced only the testimony of defendant Lillian Schurig and the testimony of plaintiff Allen Ingle. The import of Ingle’s testimony was that defendant Schurig knew of her mother’s interest in the properties before she closed the estate. On the basis of plaintiff’s proofs, we are not persuaded that the trial court clearly erred in its findings of fact as we are not convinced that we would have reached a different result had we been in the position of the trial court. Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976).
Plaintiff has simply failed to make out a prima facie case of clear title. There is no dispute that as of February, 1966, both properties in question were jointly owned by and deeded to Matthews and Lillian Musgrave, as cotenants. In order for Matthews to have obtained the cotehant’s interest in the property under a theory of adverse possession, he must have possessed that property in a manner openly hostile to the interest of defendant. The only evidence introduced at trial on this point reveals that Matthews’ possession was anything but hostile. Plaintiff failed to prove the adverse possession claim.
Plaintiff’s alternative theory is that defendant Schurig is somehow prevented from defending this action to quiet title by reason of the probate court order closing Lillian Musgrave’s estate. That probate court proceeding did not determine proper title to the lands in question inasmuch as those assets were never identified as part of Lillian Musgrave’s estate. Nor, as far as we can tell from the record before us, was Clifford Matthews ever a party to the probate court proceedings. Since title has never been judicially determined, the doctrines of res judicata and collateral estoppel do not bar defendant Schurig’s right to assert her interest in defending against this separate action to quiet title. See Dep’t of Transportation v Brown, 153 Mich App 773, 783; 396 NW2d 529 (1986) (collateral estoppel bars only issues actually litigated in a prior action), and Thomas v Michigan Employment Security Comm, 154 Mich App 736, 741; 398 NW2d 514 (1986) (res judicata bars subsequent action only where prior action was between the same parties and the same matter was litigated). To the extent that plaintiff relies upon general principles of fairness and equity in arguing that defendant Schurig should be estopped in this case because of her failure to pursue her interests in the probate matter, his reliance is misplaced in light of Clifford Matthews’ false repesentations to defendant Schurig.
Plaintiff’s remaining arguments are likewise without merit. In defending against this action to quiet title, defendant Schurig does not seek to enforce a promise by Clifford Matthews to convey realty by devise. Rather, defendant Schurig asserts her interest in property as heir to Lillian Mus-grave. The statute of frauds thus does not apply. MCL 566.106; MSA 26.906.
Since plaintiff failed to make out a prima facie case of clear title, we need not concern ourselves with the length of time Matthews occupied the property or with the merits of defendant Schurig’s claim regarding fraudulent concealment. Defendant Schurig relied on MCL 600.5855; MSA 27A.5855, a tolling provision, to defeat plaintiff’s reliance on a statute of limitations. Since we have already determined that Clifford Matthews never possessed the properties in question in an open and hostile manner, the duration of his possession is irrelevant.
To the extent that the trial court erred in excluding a copy of a letter written by plaintiff to defendant Schurig in the probate matter, apprising her of Lillian Musgrave’s interest in the two parcels of property, we find the error harmless beyond a reasonable doubt. Defendant Schurig has at all times admitted that she knew of her mother’s interest in the properties when she closed the estate. That issue is not in dispute. Moreover, plaintiff eventually testified as to the contents of the excluded letter.
The trial court construed Thomas Musgrave’s statement of consent as a disclaimer rather than a conveyance of interest, if any, in the properties in question. Thomas Musgrave consented to the entry of a judgment granting the relief prayed for in the complaint. The relief sought by plaintiff in his complaint is a judgment of "quiet title in the name of Clifford H. Matthews.” We think that the question of Thomas Musgrave’s intent cannot be determined on the face of the documents before the trial court and before us and we therefore find that plaintiff has failed to carry his burden of proving clear title to Thomas Musgrave’s interest.
Finally, while plaintiff’s allegations of perjury may support a criminal prosecution against defendant Schurig, MCL 750.423; MSA 28.665, we are not persuaded that defendant Schurig’s admittedly false statement in probate court, of which the trial court was well aware, constitutes a basis for reversing the lower court’s judgment.
We now consider defendant Schurig’s cross-appeal challenging the trial court’s refusal to order costs and attorney fees under MCR 2.403(0). Application of the mediation court rule is limited to "any civil action in which the relief sought consists of money damages or division of property.” MCR 2.403(A). Plaintiff in this case did not seek either remedy, since the purpose of an action to quiet title is to determine the existing title to property by removing any cloud therefrom. 19 Michigan Law & Practice, Quieting Title, § 1, p 159. MCR 2.403(0) does not apply and the trial court did not err in denying defendant Schurig attorney fees.
Affirmed.
We question the authority of the personal representative of an estate to maintain an action to quiet title on behalf of the estate. However, because this issue has never been raised by the parties, we will not address it here. | [
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ON REMAND
Before: D. E. Holbrook, Jr., P.J., and R. B. Burns and Hood, JJ.
Per Curiam.
This case is before this Court for the third time, now on remand by the Supreme Court. The factual history of this case has been fully set out in the prior opinions and need not be repeated in depth here. Briefly, defendant’s daughter, then a minor, was injured in an automobile accident while a passenger in her grandfather’s car, being driven by her boyfriend. The other vehicle fled the scene of the accident.
Defendant eventually sought recovery for both herself and her daughter, under the uninsured motorist coverages of the separate insurance policies issued by daiie to both Clarence Perkins, the grandfather, and defendant. Both policies had $20,-000/$40,000 limits. The matter was submitted to arbitration, which resulted in an award of $35,000 to the daughter and $5,000 to defendant. The circuit court affirmed the award. On the first appeal, this Court affirmed the circuit court. DAIIE v McMillan, 97 Mich App 687; 296 NW2d 147 (1980). Thereafter, the Supreme Court reversed:
Pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, the judgment of the Court of Appeals is reversed and the case is remanded on April 19, 1983, to the Wayne Circuit Court for entry of a judgment conforming with Detroit Auto mobile Inter-Ins Exchange v Gavin and Detroit Automobile Inter-Ins Exchange v Standfest, 416 Mich 407 (1982). [DAIIE v McMillan, 417 Mich 946; 332 NW2d 149 (1983).]
In Gavin, the Court concluded that the arbitrators involved in that case exceeded their authority in disregarding the anti-stacking provisions of the insurance policies involved. Thus, the effect of the Supreme Court’s initial remand in this case was to reject the awards made to defendant and her daughter since they involved the stacking of both defendant’s policy and the grandfather’s policy.
On remand, the trial court reduced the daughter’s award to $20,000, to conform to policy limits. However, the trial court confirmed the $5,000 award to defendant, concluding that plaintiff had failed to raise the issue on the initial appeal and, therefore, plaintiff could not now argue that defendant’s own injury was not a separate bodily injury. Thus, defendant received, for her own injury and for her daughter’s injuries, a total of $25,000.
Both parties then appealed to this Court. Plaintiff argued that the Supreme Court’s decision was a final decision and the trial court had no authority but to enter a judgment totalling $20,000. Defendant argued that the $5,000 award could not now be attacked and that her own policy was primary and, therefore, plaintiff’s prior $20,000 payment under the grandfather’s policy constitutes an "irremedial error of law,” entitling defendant to an additional $20,000 payment under her own policy. We agreed with plaintiff and vacated the $5,000 award. DAIIE v McMillan (After Remand), 149 Mich App 394; 388 NW2d 284 (1986).
Defendant then sought leave to appeal to the Supreme Court. In lieu of granting leave, the Supreme Court summarily reversed this Court:
In lieu of granting leave to appeal, the Court of Appeals judgment of February 19, 1986, is vacated and the case is remanded to that Court for consideration of the issues raised by defendant. The Court of Appeals erred in finding that questions concerning the award to Patricia McMillan were determined by the prior order of this Court. MCR 7.302(F)(1). [426 Mich 876 (1986).]
Although the Supreme Court’s order is not explicit, apparently the Court rejects our law of the case analysis in DAIIE v McMillan (After Remand), supra. Accordingly, we now address the merits of the case concerning the award to Patricia McMillan.
i
The first question for our consideration is whether the Perkins policy or defendant’s own policy is primary. Defendant argues that her own policy is primary, citing MCL 500.3114(1); MSA 24.13114(1). However, the provisions of § 3114(1) clearly apply to personal protection or personal injury benefits, not to uninsured motorist benefits. Since this case involves uninsured motorist benefits, we must look to the insurance contract language to determine which policy is primary.
Uninsured motorist benefits are payable under the Perkins policy since Tamara McMillan was occupying the Perkins automobile at the time of the accident. The uninsured motorist coverage provisions of the Perkins policy provide coverage for any passenger in an "owned automobile,” which is the automobile listed in the declarations section of the policy.
However, uninsured motorist benefits are not available under defendant’s own policy. Since Ta mara was defendant’s relative and a member of defendant’s household, she was insured under defendant’s policy. However, the following exclusionary clause appears in defendant’s policy:
The insurance afforded by this [uninsured motorist] coverage does not apply:
(1) to bodily injury to an insured sustained while occupying any automobile, other than an owned automobile, except a non-owned automobile to which there is applicable and available to such insured no insurance similar to that afforded by this coverage.
Thus, to be covered under the uninsured motorist coverage of defendant’s policy, Tamara must have either (1) been occupying an "owned automobile” under defendant’s policy, or (2) been occupying a "non-owned automobile” for which there were available no uninsured motorist benefits covering Tamara.
With respect to condition (1) above, Tamara was not occupying an "owned automobile” at the time of the accident. As noted above, to be an "owned automobile,” the automobile must be listed in the policy declarations. Since the Perkins automobile was not listed in the declarations of defendant’s policy, it is not an "owned automobile” under defendant’s policy. Turning to condition (2), neither requirement is met. First, the Perkins automobile is not a "non-owned automobile” under defendant’s policy. To be a "non-owned automobile,” an automobile cannot be "owned by . . . [a] relative or other resident of the same household of such named insured ... .” Since the Perkins automobile is owned by a relative who resides with the named insured, defendant, it is not a "non- owned automobile” under defendant’s policy. Furthermore, even if the Perkins automobile were to be considered a "non-owned automobile” under defendant’s policy, as discussed above, Tamara is eligible for benefits under the uninsured motorist coverage of Perkins’ own insurance policy. Thus, the second requirement of condition (2), that the insured not be covered by uninsured motorist coverage of the "non-owned automobile,” is not met here.
Accordingly, not only is the Perkins policy primary, it is the only policy applicable. Thus, all of defendant’s arguments based upon her own policy being primary are without merit.
ii
The next issue for our consideration is whether defendant’s individual award for $5,000 was for a separate bodily injury or is a derivative loss of services claim. We conclude that defendant’s individual award must be for loss of services as she could not recover, as a matter of law, for her own mental anguish.
This Court has permitted a parent to recover for mental anguish where he or she either witnessed the child’s accident or arrived at the accident scene "fairly contemporaneously” with the accident. See Gustafson v Faris, 67 Mich App 363; 241 NW2d 208 (1976); Toms v McConnell, 45 Mich App 647; 207 NW2d 140 (1973). However, another panel of this Court strictly required that the parent actually witness the accident. Perlmutter v Whitney, 60 Mich App 268, 273; 230 NW2d 390 (1975).
In the more recent case of Henley v Dep’t of State Highways & Transportation, 128 Mich App 214; 340 NW2d 72 (1983), this Court followed Gustafson and applied the "fairly contemporaneous” rule. The Henley Court found that the parents in that case did not satisfy the rule where they learned of their son’s accident five hours later and first saw him in the hospital. 128 Mich App 219.
We need not decide whether to apply the strict "actually witnessed” rule of Perlmutter or the more lenient "fairly contemporaneous” rule of Gustafson as we conclude that neither rule was satisfied.
Defendant admits in one of her briefs that she did not actually witness the accident. Rather, she arrived at the accident scene over an hour later. Her daughter had already been removed from the car. She apparently did not see her daughter until sometime thereafter. We conclude that this does not satisfy the "fairly contemporaneous” rule. Accordingly, defendant’s claim is merely derivative and not a separate bodily injury. Therefore, both defendant’s individual award and the award for Tamara’s injuries must conform to the single $20,000 policy limit.
m
Finally, we reach the question of the appropriate remedy. We believe that, since the arbitration award was exactly twice the available policy limit, the most appropriate remedy would be for the award to be reduced by fifty percent. Accordingly, this case is remanded to the trial court with instructions to enter a judgment of $17,500 on the minor’s claim and $2,500 on defendant’s individual claim.
Remanded for further proceedings consistent with this opinion. Jurisdiction is not retained. Costs to plaintiff.
While it appears illogical to say that the Perkins automobile is neither "owned” nor "non-owned,” the policy obviously creates a third category, automobiles owned by other members of the household, in which the Perkins automobile falls.
We note that it appears that the arbitration panel viewed this as one injury, rather than two. By stacking the two insurance policies, the arbitrators erroneously believed that there were policy limits of $40,000 per injury and $80,000 per occurrence. Since the arbitrators awarded $40,000, it is very likely that they viewed this as one injury and conformed their award to what they thought policy limits were for one injury. | [
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Per Curiam.
This is an appeal from an order of the Newaygo Circuit Court ordering the reinstatement of the petitioner’s restricted driver’s license under MCL 257.323; MSA 9.2023. We reverse the judgment of the trial court and vacate the order for reinstatement of the petitioner’s restricted driver’s license, dated January 21, 1986.
On February 21, 1980, petitioner was convicted of operating a motor vehicle while under the influence of drugs in violation of MCL 257.625; MSA 9.2325.
On September 19, 1983, petitioner was convicted of operating a motor vehicle while under the influence of intoxicating liquor in violation of MCL 257.625; MSA 9.2325.
On March 26, 1984, petitioner was again convicted of operating a motor vehicle while under the influence of intoxicating liquor. MCL 257.625; MSA 9.2325. Petitioner’s sentence upon this most recent conviction for operating under the influence included an order to the Secretary of State to revoke petitioner’s driver’s license. Petitioner was subsequently convicted of driving without a license on at least three occasions._
On December 3, 1985, petitioner filed a petition for restoration of driving privileges in the Newaygo Circuit Court pursuant to MCL 257.323; MSA 9.2023. Petitioner requested very limited driving privileges at a show cause hearing on January 21, 1986. As noted above, the circuit court ordered the reinstatement of a restricted license for the petitioner.
The Secretary of State argues on appeal that the circuit court was without jurisdiction to order restoration of a restricted license under MCL 257.323; MSA 9.2023. We agree.
Subsection 3 of MCL 257.323; MSA 9.2023 allows a circuit court to modify a restriction, suspension, revocation or denial of a driver’s license imposed by the Secretary of State. However, subsection (5) provides:
This section shall not apply to a denial, revocation, suspension, or restriction imposed pursuant to a court order issued as part of the sentence for of [sic] a conviction of a violation of section 625 or 625b, or a local ordinance substantially corresponding to section 625(1) or (2) or 625b. [MCL 257.323(5); MSA 9.2023(5).]
We believe that the Secretary of State properly revoked the petitioner’s license for a period of five years following his March 26, 1984, conviction. Section 303 of Michigan Vehicle Code provides in pertinent part:
(1) The secretary of state shall not issue a license under this act:
(d) To a person whose license has been revoked under this act until the later of the following:
(i) The expiration of not less than 1 year after the license was revoked.
(ii) The expiration of not less than 5 years after the date of a subsequent revocation occurring within 7 years after the date of any prior revocation. [MCL 257.303; MSA 9.2003.]
Petitioner’s license was or should have been revoked after his second conviction for driving under the influence. MCL 257.625(4); MSA 9.2325(4). Since petitioner’s license had previously been revoked less than a year prior to the March 26, 1984, conviction and revocation, the Secretary of State had no choice but to revoke petitioner’s license for a period of not less than five years.
Section 323 of the Michigan Vehicle Code clearly and unambiguously withholds authority from the circuit court to modify the revocation of petitioner’s license. We therefore reverse the judgment of the trial court and vacate the order of January 21, 1986.
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M. J. Kelly, P. J.
Plaintiff brought this action against Dominic Ginell, doing business as The Front Page News Center, under the Michigan public nuisance abatement statute, MCL 600.3801; MSA 27A.3801. Defendant brought a motion to dismiss based on this Court’s decision in State ex rel Oakland Prosecuting Attorney v Alray North-crest Plaza, 146 Mich App 595; 381 NW2d 731 (1985), lv den 424 Mich 896 (1986). The trial court subsequently granted defendant’s motion and dismissed the case. Plaintiff appeals as of right. We affirm.
This case arose out of an ongoing investigation of The Front Page News Center by Oakland County investigators. The Front Page News Center operates as an adult book and video store and has individual viewing booths where patrons can view adult video entertainment.
Plaintiff argues that the operation of this busi ness was in violation of MCL 600.3801; MSA 27A.3801, the public nuisance abatement statute, which provides in relevant part:
Any building, vehicle, boat, aircraft or place used for the purpose of lewdness, assignation or prostitution or gambling, or used by, or kept for the use of prostitutes or other disorderly persons ... is hereby declared a nuisance . . . Any person, or his servant, agent or employee who shall own, lease, conduct or maintain any building, vehicle or place used for any of the purposes or by any of the persons above set forth or where any of the acts above enumerated are conducted, permitted or carried on, is guilty of a nuisance.
Plaintiffs first claim is that its complaint was sufficient to sustain this action under the public nuisance abatement statute based on the allegations in the complaint of prostitution-related activities occurring on the premises. Therefore, plaintiff claims that the trial court erred in dismissing the case.
Plaintiffs claim is without merit. Nowhere in plaintiff’s first amended complaint does plaintiff claim that prostitution, perpetrated by either males or females, took place on the premises. The complaint merely asserts that the premises are visited by "disorderly persons who gather and engage in indecent or obscene conduct and/or who engage in acts of gross indecency and/or who solicit or accost others to do lewd or immoral acts . . . .” Plaintiffs investigators related how they were invited to engage in sexual activity by male patrons of defendant’s establishment; however, these invitations were for consensual activity and not for sex in exchange for monetary compensation.
"[T]he public nuisance statute was designed to eliminate the use of property for or in connection with prostitution, gambling and the illicit possession or transfer of intoxicants, not to eliminate obscenity.” State ex rel Oakland Prosecutor v Alray, supra, pp 602-603. See also, People ex rel Wayne Prosecuting Attorney v Sill, 310 Mich 570, 575; 17 NW2d 756 (1945); State ex rel Saginaw Prosecuting Attorney v Bobenal Investments, Inc, 111 Mich App 16; 314 NW2d 512 (1981), lv den 414 Mich 951 (1982), and State ex rel Wayne Co Prosecuting Attorney v Levenburg, 406 Mich 455; 280 NW2d 810 (1979).
Since plaintiff has failed to allege that The Front Page News Center was used by persons engaging in activities related to prostitution, gambling or intoxicants, consistent with Alray, plaintiff has failed to state a claim.
Next plaintiff invites this panel of the Court of Appeals to reach a conclusion inconsistent with this Court’s conclusion in Alray on the definition of disorderly persons, as that term is used in the public nuisance abatement statute. We decline. As stated in Alray, the interpretation of the phrase "disorderly persons” offered by plaintiff would lead to absurd results inconsistent with the aforementioned purposes of the public nuisance abatement statute. "If places used for purposes of obscene conduct are to be subject to abatement as public nuisances, it is the Legislature’s function to enact or expand such provisions, taking care that they pass constitutional muster.” Alray, supra, p 603, n 7. As of this decision, the Legislature has not taken action to expand the public nuisance abatement statute to include obscene conduct.
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Per Curiam.
Defendant appeals as of right from the child support provision of a divorce judgment entered March 17, 1986. We reverse in part and remand for modification of the final judgment.
The sole issue on appeal is whether the trial court exceeded its authority in ordering the defendant to pay support for his two minor children, born May 6, 1969, and August 28, 1973, until they reach the age of majority or graduate from high school, whichever occurs later. Defendant did not agree to pay child support beyond the eighteenth birthday of either of his children and contested this issue below, specially preserving it for appellate review.
This Court has previously held that the enactment of the Age of Majority Act, MCL 722.51 et seq.; MSA 25.244(51) et seq., effective January 1, 1972, eliminated a parent’s obligation to pay support beyond his or her child’s eighteenth birthday and deprives the circuit court in divorce actions of the right to order support beyond the eighteen-year age of majority. See Parrish v Parrish, 138 Mich App 546; 361 NW2d 366 (1984); Arndt v Kasem, 135 Mich App 252, 258-259; 353 NW2d 497 (1984); Boyd v Boyd, 116 Mich App 774, 786; 323 NW2d 553 (1982); Garrett v Garrett, 108 Mich App 258; 310 NW2d 355 (1981); Sumerix v Sumerix, 106 Mich App 7; 307 NW2d 727 (1981); and McNames v McNames, 93 Mich App 477; 286 NW2d 892 (1979).
The circuit court’s jurisdiction in divorce proceedings is defined by statute, Parrish v Parrish, supra at 549, and not by court rule. Jurisdiction over children and child support matters in such proceedings is limited as expressly stated in § 17a of the Michigan divorce statute:
The court shall have jurisdiction in making such order or judgment relative to the minor children of such parties as authorized in this chapter to award custody of each child to 1 of the parties or a third person until each child has attained the age of 18 years and may require either parent to pay such allowance as may be deemed proper for the support of each child until each child shall have attained that age and may in case of exceptional circumstances, require payment of such allowance for any child after he attains that age. [MCL 552.17a; MSA 25.97(1).]
At the time this statute was enacted and at the time it was amended in 1970, the age of majority in Michigan was twenty-one years. Thus, § 17a allowed a court to provide for a minor child’s support (though not custody) beyond that child’s eighteenth birthday. Pursuant to case law, however, the court in no event had authority to order support beyond the age of majority. See Johnson v Johnson, 346 Mich 418, 423-426; 78 NW2d 216 (1956).
With the enactment of the Age of Majority Act, a person attaining the age of eighteen years now becomes "an adult of legal age for all purposes whatsoever,” incurring "the same duties, liabilities, responsibilities, rights and legal capacity as persons heretofore acquired at 21 years of age.” MCL 722.52; MSA 25.244(52). Since circuit court jurisdiction in divorce proceedings is defined by statute, plaintiff’s argument that MCR 3.209(B)(1)(b) expands the circuit court’s jurisdiction over child support matters is without merit. The same argument was rejected by this Court with regard to the former court rule, GCR 1963, 729.2(1), which had language virtually identical to the rule currently in effect. See McNames v McNames, supra; Price v Price, 51 Mich App 656; 215 NW2d 756 (1974), rev’d on other grounds, 395 Mich 6; 232 NW2d 630 (1975).
With the enactment of the Age of Majority Act, a person attaining the age of eighteen years now becomes "an adult of legal age for all purposes whatsoever,” incurring "the same duties, liabilities, responsibilities, rights and legal capacity as persons heretofore acquired at 21 years of age.” MCL 722.52; MSA 25.244(52). The circuit court’s authority to order child support in this matter is clearly limited to the defendant’s minor children. The court thus exceeded its authority in ordering child support beyond the eighteenth birthday of each child.
Reversed in part and remanded for modification of the judgment of divorce in accordance with this opinion. | [
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Black, J.
These cases, originally assigned to a Brother Justice, were reassigned to the writer February 27,1958.
Before us are consolidated actions for negligence in which it is alleged that the defendant motorist inflicted actionable injury to the person of plaintiff Judy Pritchett. Judy — aged 9 years plus at the time — attended the Hile school. The school premises are situated on the west side of highway US-31, a short distance south of Muskegon Pleights. School had let out some 20 minutes prior to the events we are to consider. Judy stayed for the interval to help clean erasers. She then attempted crossing the highway, in front of the main school building and from west to east toward her home, as the defendant’s car approached from the north. According to her favorably-viewed testimony, Judy was struck by the car after she had crossed the west half of the paved portion of the highway and was on the easterly half of the pavement. Defendant did not see the little girl until, according to his ■ testimony, “she was right in front,” no more than 2 feet away. No question as to sufficiency of proof of causal negligence on his part is presented. Further details will appear later by quotation from the “trial judge’s opinion.
Trial to court and jury resulted in verdicts and judgments for the respective plaintiffs. Defendant appeals.
First: The Question of Contributory Negligence.
Defendant insists that his motion for directed verdicts should have been granted, with bench-declared imputation to Judy of contributory negligence. We •cannot agree.
There is no need for review of recent relevant decisions, the essence of which we apply to this case with declaration that “the prudence of the party injured (Judy) must be estimated in view of what he (she) had a right to expect from such other person (the defendant),” and with eorollarial declaration that the trial judge properly refused to hold this child-pedestrian guilty of contributory negligence in view of her undoubted right to rely on fair performance of the defendant’s duty to enter and proceed through this school zone — especially considering the time of day — at reduced speed and with increased vigilance. See to the point Steger v. Blanchard, 350 Mich 579, 586 (rehearing, 353 Mich 140). If such a rule is applicable in proper case to an adult pedestrian, it must in circumstances as here be applied to the case of a 9-year-old school pupil.
In this case a large school had just let out. Motorists approaching the vicinity were plainly and precedently warned by proper traffic control signs of the imminence of a school zone. The testimony of a motorist defendant overtook and passed (“a big block” north of the school premises), tended to prove that defendant was proceeding at an excessive rate of speed as he entered and proceeded through the school zone. True, and as defendant vehemently contends (with both feet planted firmly on Denman v. Youngblood, 337 Mich 383), the oncoming car was there to be seen by Judy — through and by means of “further observation” — prior to her attempted crossing. But that fact alone is not decisive in favor of an instructed verdict. Pedestrians in these days of crowded highways must on occasion — such assuredly is the case when a school is letting out or has recently released its pupils — cross in front of visibly approaching motor traffic. We judge their conduct on motion for directed verdict not by what could have been seen and done but by the standard of care the law exacts of them under the particular circumstances of their criticized action or inaction (Normand v. Thomas Theatre Corporation, 349 Mich 50); in other words, by a constantly variable standard which depends for its ascertainment on such circumstances. To this we need but add that the motoring-speed-of-approach factor, and the dis-stance-away factor, as a child assumes to cross his marked school zone during or shortly after school hours, constitute a vital part of “the circumstances under which he acts.” (Quotation from Flynn v. Kramer, 271 Mich 500, 505, followed in Normand, supra.)
While the question whether Judy was walking or running- at the time was sharply disputed, we cannot on review of motion for directed verdict look at the record other than favorably to her. We accordingly arrive at agreement with the trial judge’s disposition of the question of contributory negligence, quoted from the record as follows:
“This court has carefully considered the question of whether Judy Prichett was guilty of contributory negligence as a matter of law and concludes that under the facts of this case such issue was properly-submitted to the jury.
“This accident occurred on XJS-31, south of the city of Muskegon in front of the Hile school. US Highway 31 is a heavily-travelled highway, the paved portion of which is 20 feet wide. The area surrounding the school is a heavily-populated suburban community with some commercial buildings interspersed with homes. The school zone is plainly marked and was admittedly well-known to the defendant. A straight sidewalk extends from the entrance of the school to the berm of the highway at which a crosswalk for children exists. Defendant commenced passing another automobile at about the time he entered the marked school zone.
“The injured child was approximately 9-1/2 years old at the time of the accident. She testified she walked to the edge of the pavement and waited for a line of cars to pass in front of her traveling in a northerly direction; that she looked and saw no other cars approaching; that she proceeded to walk across the highway; that she crossed the westerly-half of the highway and had proceeded 25 inches beyond the center line when defendant’s auto, traveling in a southerly direction, struck her.
“Under the above circumstances the question of the child’s contributory negligence was submitted to the jury. They apparently believed her version of the accident. The question of proximate cause was also submitted to the jury. The court is of the opinion that the contributory negligence of the plaintiff was a question of fact under all of the circumstances to be determined by the jury.”
Second: The Question of Future Damages.
Relying on the general rule, first announced in Michigan when Brininstool v. Michigan United R. Co., 157 Mich 172, was handed down, defendant insists that the trial judge reversibly erred in giving the following instruction to the jury:
“Now, if you find for the plaintiff, the plaintiff, Judy, will be entitled to receive damages for pain and suffering. You will also award her such sums as you find from the evidence will be fair and reasonable to compensate her for the pain and suffering to date, and for such pain and suffering which, under the evidence, she .is reasonably certain to undergo in the future, or for such disfigurement, by a shortening of the leg or otherwise.”
Judy was grievously hurt. The principal injury with which we are concerned was a splintering— comminuted — fracture of the left femur extending “from the level of the hip downwards for a distance of about 6 inches.” Such fracture was first reduced through surgical installation of a metal plate and screws. When the fragments had apparently knit to the surgeon’s satisfaction, the plate and screws were removed. This second operation was performed December 6,1952, a little over 9 months after the date of accident and injury. January 6, 1953, Judy slipped and refractured the femur at the point of original fracture. The cause of the second fracture was attributed by the surgeon to “the atrophy of the bone, the weakness of it.” Such fracture was reduced by a third operation, this time through installation in the femur of what is medically known as an intramedullary rod. The rod is made of stainless steel. It is usually introduced at the upper end of the femur and is then driven down through the marrow canal to and beyond the point of fracture, thereby and in lay parlance splinting the fracture inside the bone itself. Later, and when healing is judged satisfactory, a final operation is performed, that of withdrawing the rod at the point of introductory surgery.
We turn from this background to the testimony disclosing surgical result and disability as found at the time of trial. The surgeon testified:
“We removed the intramedullary rod once healing was sound, as one always likes to do in children, because it does interfere with normal growth, and that was done in August of 1954, and she has been seen subsequently, and on our final examination on this child she was walking well, with a very mild stiffness of gait. She had normal range of motion in both hips, knees and ankles. She had normal growth, with a leg length discrepancy — shortness on the one side — of approximately 1/2 inch, and this will vary as she grows during the next few years.
“Q. Would you anticipate, doctor, that this difference in leg length will be a permanent condition, or is that something that will have to adjust itself?
“A. It frequently adjusts itself. Sometimes it may stay on permanently, in which event it’s sometimes necessary, if it’s more than an inch, or more than a half inch, actually, for a good gait it may be advisable to slow up the growth in the other side, so the other side can catch up. * * *
“Q. Doctor, in your opinion, will this child suffer any permanent impairment of the use of this leg?
“A. At her age, she should suffer little, if any.
“Q. Do you anticipate that this child, in the future, might suffer any pain or discomfort from the fracture of her leg, doctor?
“A. Since she is a child, she shouldn’t.”
Before us is a typical question of judgment of the legal sufficiency of evidence. There being no other. testimony to the point, the issue is whether the surgeon’s opinions quoted above, and the facts distinguished from opinions as related by him, call for ruling here that Judge Fox erred in submitting to the jury, for its determination, Judy’s claimed right to damages for future pain and disability.
We start with the attested fact that Judy, at the time of trial, was suffering from a definite shortening of her left leg and the necessity of limping “when I get tired.” We proceed from this to the experience related by the surgeon that it is sometimes necessary “to slow up the growth” of the normal leg “so the other side can catch up.” Finally, and as is readily apparent from the surgeon’s testimony, no one can tell with fair accuracy whether the definite fact of partial disability, known at present, will correct itself; whether in the years ahead Judy will be required to undergo treatment to retard growth of her normal leg, and whether if given such treatment a sound and normal pair of limbs will result. These facts — irrespective of presence or absence of a professional opinion attesting permanent injury— warranted submission to the jury of the question of Judy’s claimed right to damages for future pain and disability (McDuffie v. Root, 300 Mich 286; Toman v. Checker Cab Co., 306 Mich 87 [14 NCCA NS 202]).
Brininstool, incidentally, did not on its facts hint that it was improper to submit the question of apprehended future consequences to the jury. On the contrary the question was held one for decision by “the twelvers” and the case was reversed — for new trial — for want of more specific instructions to the point. In Brininstool this is what the Court found, ■by way of summary, from the extended medical testimony as quoted (pp 179, 180):
“Beading this testimony, it seems to us to amount, in effect, to this: No one could predict which, if any, of the severally enumerated disorders would supervene; but a condition had been created, an effect produced, by the injury permanently impairing the normal health of the plaintiff, manifesting itself in present nervousness, and likely to manifest itself in more serious nervous disorder, at some time during the probable life of the plaintiff.”
It is apparent that counsel misapprehend the place (courtroom or juryroom) as well as the circumstances in which BrininstooVs said rule — of “reasonable certainty” — is usually and of right applied to the testimonial facts. Depending on the proofs of the given case, the rule warrants either peremptory instruction that no damages for apprehended future consequences can be allowed or appropriate instruction that the question of right to such damages must be determined by the jury. In this case Judy’s counsel submitted fact evidence from which the jury could have found, within scope of the rule (see King v. Neller, 228 Mich 15, 22), that Judy will suffer future pain and disability as a result of the original fracture and the surgical treatment she has necessarily received. We accordingly hold that the question of future damages was for the jury and not the court.
It is only where there is a complete want of proof, showing or tending to show “such a degree of probability of such consequences as to amount to reasonable certainty that they will result from the original injury,” that the trial judge is justified either in refusing a request addressed to allowance of claimed future damages or in granting a request that damages for claimed future consequences cannot be allowed. Here, and if defendant had so requested, he would have become entitled to an instruction conforming in detail with Brininstool's said rule. He preferred no such request and is in no position to assert that more detailed instructions to the point should have been given.
Third: Instruction On Contributory Negligence.
The final question of apparent moment is advanced by defendant’s stated question 4, which question tests paragraph 47. of the jury charge as given. The Chief Justice, having quoted said paragraph 47 in his opinion (post, p 164), writes that on account of concluding language of the paragraph — “unless, however, the plaintiff had successfully negotiated the right hand portion of the highway and crossed the center line of the highway” — the trial judge “in effect” charged that, if Judy successfully crossed the center line before being struck, she was free from contributory negligence as a matter of law. Such reasoning, as I view it, arrives at its “in effect” conclusion for want below of rounding out said paragraph 47 by adding: “in which event the question of her contributory negligence is to be determined by the jury in accordance with my general instructions on that score” (or words to such effect). The unfinished discourse of the trial judge admittedly was unfortunate, if not technically erroneous, yet he did not thereby say or instruct that the little girl was free from contributory negligence if it be found that she “made it” (see Mr. Justice Smith in Bartlett v. Melzo, 351 Mich 177, 178) over the center line. Rather, he approached — yet left unsaid — that which defendant draws by inference from the mentioned paragraph. For our part, the sickening cost and untoward delay of necessary and unnecessary retrials in mind, we refuse to read — with reversible result — into the language of a jury charge that which is not plainly and instructionally there. Instead, it is suggested that we should pursue our sound and matured practice of looking at a jury charge in its entirety to find whether isolated and context-lifted portions constitute error and, if so, whether such error is reversible.
Considered with the remainder of this lengthy charge, containing as it does repeated and presently unopposed declarations of the law of contributory negligence as applied to the facts of the case and the plaintiffs’ burden of disproof thereof, we cannot agree that the quoted qualifying words of said paragraph 47 eliminated from jury consideration (“to all practical intents and purposes” if there he jury finding of safe passage to and beyond the center line) the entire remainder of the charge on the subject of contributory negligence.
The charge consists of 19 printed pages. It is a model job in general and, save only in this considered instance, was more favorable to defendant than he might reasonably have insisted upon. When it was concluded the trial judge inquired “Anything else?”, to which defendant’s counsel responded with request that the defendant’s claim in the case be stated and with objection that the court had instructed to the subject of future damages “although the mortality tables are not in evidence.” Nothing was said about the point now viewed. Surely, and if counsel had then attributed to the criticized words of instruction (they were “alive” in the courtroom at the time) the prejudicial effect he now urges with respect thereto, it is fair to assume that he would have called the judge’s attention to such words, in open court or at chambers, in order that opportunity for corrective instruction be given.
In the recent case of Kaminski v. Grand Trunk W. R. Co., 347 Mich 417, 429, this Court found occasion to consider an assignment directed to another context-lifted technical error of jury instruction. We need not repeat what was said on the occasion. Applying rules quoted from Labar v. Crane, 56 Mich 585; and Robertson v. Hayes, 261 Mich 200, it is held — in paraphrase of Robertson — that if defendant’s counsel, present at the time, observed the “in effect” error now pressed upon us, such counsel doubtless would have then called it to the trial judge’s attention for correction. On the other hand, and if counsel did not then notice or comprehend the presently-claimed prejudicial effect thereof, it would appear farfetched to assume that the jury took from the criticized words a controlling instruction that Judy was not guilty of contributory negligence if its members found she “crossed the center line” prior to impact.
Assignments of error aimed at a doubtful or erroneous small island of an otherwise proper jury charge are consistently approached in this Court. Quoting from Provost v. Brueck, 110 Mich 136, we said in Bouma v. Dubois, 169 Mich 422, 434:
“Where the charge of the court, taken as a whole, correctly states the law as applicable to the particular case; and clearly defines the issue, the fact that sentences are objectionable, when considered inde pendent of the context, does not constitute reversible error.”
On at least a score of occasions this Court has since so affirmed. Examples appear in Hayes v. Coleman, 338 Mich 371 ; Bathke v. City of Traverse City, 308 Mich 1; Stehouwer v. Lewis, 249 Mich 76 (74 ALR 844); Holmes v. Borowski, 233 Mich 407; Hall v. City of Flint, 195 Mich 638; and Sloman v. Credit Guarantee Co., 112 Mich 258. In Max v. City of Detroit, 337 Mich 674, 678, Mr. Justice Butzel, writing for a unanimous Court, found occasion to declare the ruling with vigor and care of citation. And in Eger v. Helmar, 272 Mich 513, 517, we find what well may be said in disposition of defendant’s said question 4:
“In the instant case, as sometimes happens, certain portions of the charge to the jury when isolated from the general context are somewhat indefinite and possibly inaccurate. But as a whole we think the charge advised the jurors of the law applicable to the case in such a manner as enabled them to make an intelligent and just disposition of the controverted issues.”
"We promptly would agree with the Chief Justice had the trial judge actually told the jury that Judy should be judged free from contributory negligence if it be found that she successfully and prior to impact crossed the west half of the pavement. However, since no such instruction was given other than “in effect,” if at all, and since this otherwise informative charge submitted the presented issues properly and in detail, we find that the error as claimed, if indeed it rise to the dignity of reviewable error, is not reversible.
We vote to affirm, with costs to plaintiff."
Smith, Edwards, and Voelker, JJ., concurred with. Black, J.
Quotation from Detroit Milwaukee R. Co. v. Van Steinburg, 17 Mich 99, 119.
The rule, quoted from Brininstool into In re Boyer’s Estate, 282 Mich 552, 556, and Kellom v. City of Ecorse, 329 Mich 303, 308, reads as follows:
. “It is the generally aeeepted rule that to entitle a.plaintiff to recover damages presently for apprehended future eonsequenees of an injury, there must be such a degree of probability of such consequences as to amount to reasonable certainty that they will result from the original injury.”
The nature of such treatment, hy which the growth of one leg is retarded, is not explained in the record.
Judy’s injuries were sustained February 25, 1952. The cases were tried July 11,1956.
The condensed essence of defendant’s briefed claim in such regard is that “In effect the trial judge thus told the jury that even though Judy was negligent in not seeing defendant’s car, she could recover if she had crossed the center line of the highway.”, and that “This instruction permitted Judy to recover, despite any finding by the jury that she was negligent.”
We do not intimate that counsel must except to tlie charge either as to parts or the whole thereof. Neither must objection be made to save for review that which fairly amounts to reversible error of instruction or failure of instruction. We do suggest, following Labar, Robertson and KaminsM, that counsel will do well — preferably at chambers after the jury has retired — to call up for immediate repair as indicated any apparent inadvertence or possibly confusing ambiguity of language the trial judge has isolatedly employed. We judge the importance of errors of such nature, and their consequent effect as being either reversible or harmless, in part by the attitude of. counsel toward same when time yet remains to set things right in the jury room. | [
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Carr, J.
The plaintiffs herein are members of the fire department of the city of Detroit. On behalf of themselves and others similarly situated they filed suit in the circuit court of Wayne county seeking a ■declaratory decree, under the statute, determining their seniority and promotional rights. The bill of complaint avers that in accordance with charter provisions of the city of Detroit the plaintiffs made applications for positions in said department and ■otherwise complied with the provisions of the charter. Thereafter they were duly certified and placed on the eligible list by the civil service commission of the city. In the meantime this country became engaged in World War II and at the time of certification plaintiffs, with the exception of Piontek, had been inducted into the armed forces. Piontek was likewise so inducted prior to receiving notice to appear for the required physical examination.
Following discharge from the military service plaintiffs were duly appointed as members of the fire department and began active service therein. It is their claim that under charter provisions relat ing to the civil service commission, rule 14 of said commission, and ordinance 38-E of the city of Detroit, they have seniority and promotional rights based on the dates of certification. It was further alleged by plaintiffs in their bill of complaint that the defendant board of fire commissioners had refused to recognize such rights, and, in making promotions, were giving priority to other members of the-department who were certified subsequent to plaintiffs but who entered actual service as members of' the department before plaintiffs did so. It thus appears that the actual contest is between plaintiffs and other members in the department. The Detroit Firefighters Association intervened as a party defendant, denying the right of plaintiffs to preferential treatment and upholding the position of the board of fire commissioners.
The defendants in their answers to the bill of complaint denied that plaintiffs were entitled to the seniority and promotional rights asserted by them, averring that title 4, chapter 15, § 12, of the charter is controlling and that in accordance therewith promotions in the fire department must be made on the basis of length of actual service, without reference to date of certification to the eligibility list. The trial court sustained defendants’ claim and entered a decree accordingly, reciting that the said charter provision prevails over the ordinance of the city and the rule of the civil service commission, above cited. Plaintiffs have appealed.
Plaintiffs direct attention to title 4, chapter 2, of the charter, by which a system of civil service for municipal employees is established. Said chapter is comprehensive in its provisions and in terms applies generally to municipal offices, departments and commissions of the city. Specific emphasis is placed •on section 15 of said chapter, which reads, in part, ■as follows:
“The head of any department or office in which a position classified under this chapter is to be filled shall notify the commission of that fact and the commission shall certify to the appointing officer the name and address of the candidate standing highest upon the eligible list for the class or grade to which such position belongs. In regard to positions involving common or unskilled labor, the commission shall adopt and publish rules and regulations outlining practices and procedure with respect to such employment not inconsistent with the provisions of this charter relative to civil service. The appointing officer shall notify said commission of each position to be filled separately, and shall fill such position by the appointment of the person certified to him by the commission therefor, which appointment shall be on probation for a period to be fixed by the rules. At or before the expiration of the period of probation, the head of the department or office in which a candidate is employed may, with the consent of said commission, based upon the written reasons submitted to it, discharge him, or the commission may transfer him to another department with the consent of such department. If not discharged prior to the expiration of the period of probation, his appointment shall be deemed complete.”
Pursuant to authority granted by the charter the ■civil service commission adopted rule 14, above mentioned, which provided that persons certified to the classified service of the city after having been inducted into the armed forces of the country should be entitled to seniority rights from the date of certification, on compliance with the conditions prescribed for actual entrance into municipal employ ment. Ordinance 38-E of the city of Detroit, effective September 20, 1945, likewise provided seniority for veterans, commencing with date of certification into the classified service contemplated by the pertinent provisions of the charter. On behalf of appellees it is insisted that snch provisions of rule 14 and ordinance 38-E are repugnant to title 4, chapter 15, § 12, of the charter, and that the trial court was correct in so holding.
In the adoption of rules pursuant to charter authority the civil service commission is bound by the provisions creating it and defining its powers and duties. In the adoption of ordinances -the council is likewise limited. Mayor of City of Dearborn v. Dearborn Retirement Board, 315 Mich 18, 24. In the event of a conflict the requirements of the charter as adopted by the people of the municipality are controlling. In consequence, the issue in the case resolves itself into the interpretation of charter provisions.
In construing provisions of the fundamental law of the city the general rules recognized in cases involving the interpretation of statutes are applicable.. The inquiry must be directed to ascertaining the intention of the people of Detroit in the adoption of their charter. Provisions pertaining to a given subject matter must be construed together, and if possible harmonized. It may not be assumed that the adoption of conflicting provisions was intended. One provision may not be construed in such manner as to render another of no effect if such result can be avoided. It is also true that under ordinary circumstances general provisions must yield to a specific mandate. City of Grand Rapids v. Crocker, 219 Mich 178; People v. Wolfe, 338 Mich 525, 536; People v. Babcock, 343 Mich 671.
The situation presented in the interpretation of statutes where the claim is advanced that general and specific provisions are contradictory is well summarized in 50 Am Jur, Statutes, § 367, pp 371, 372, as follows:
“It is an old and familiar principle, closely related to the rule that where an act contains special provisions they must he read as exceptions to a general provision in a separate earlier or subsequent act, that where there is in the same statute a specific provision, and also a general one which in its most comprehensive sense would include matters embraced in the former, the particular provision must control, and the general provision must be taken to affect only such cases within its general language as are not within the provisions of the particular provision. Additional words of qualification needed to harmonize a general and a prior special provision in the same statute should be added to the general provision, rather than to the special one. Under these rules, where there is, in the same statute, a general prohibition of a thing and a special permissive recognition of the existence of the same thing under regulation, the particular specified intent on the part of the legislature overrules the general intent incompatible with the specific one. The general rule is, of course, applicable only as an aid in ascertaining and giving effect to the legislative intent; positive and explicit provisions, comprehending in terms a whole class of cases, are not to be restrained by applying to those cases an implication drawn from subsequent words, unless that implication be very clear, necessary, and irresistible. The rule cannot be applied where the effect will be to override and render almost useless express words in the statute.”
The foregoing statement of the generally recognized rule may properly be applied in the instant case. Title 4, chapter 15, § 12, of the charter of Detroit, on which appellees rely, is clear and specific in its direction to the board of fire commissioners. It is limited in its application to promotions in the fire department. Said section reads as follows:
“Sec. 12. Promotions in the fire department shall be based on length of service therein. The officers or employee thereof having served the longest period in any position shall be advanced to fill any vacancy in the next higher position, if he shall have the qualifications therefor.”
The language of section 12 is not ambiguous in any respect. The reference to length of service in the department can be taken in no way other than as meaning actual service as an employee of the city. One who is merely on the eligible list may not be considered as in actual service. The observance of certain conditions is prescribed prior to actual appointment of an employee. In other words, the charter requirement is that promotions are to be based on length of service rather than on the date of certification to the eligible list.
As before noted, title 4, chapter 2, providing for the establishment of a civil service system, is general in its terms. We have, in consequence, the not uncommon situation of general provisions of a law, in this case a municipal charter, to which the enacting power has made a specific exception. Recognition of such exception does not involve nullifying any part of the chapter relating to civil service. On the other hand, sustaining the claim of the plaintiffs in this case would result in nullifying section 12, above quoted. Reading said section as an exception to title 4, chapter 2, gives effect to both and is wholly consistent with the indicated purpose and intention of the people of Detroit in the adoption of their charter. We are in accord with the conclusion reached by the trial judge. Title 4, chapter 15, § 12, of the charter of the city is controlling.
The decree is affirmed. In view of the nature of the question at issue, no costs are allowed.
Dethmers, C. J., and Kelly, Smith, Black, Edwards, Voelker, and Kavanagh, JJ., concurred.
Eor provisions cited in tliis opinion, see Municipal Code, City of Detroit (1954), as follows:
Charter, title 4, eh 15, § 12 . . charter section, p 89.
Charter, title 4, eh 2,...... charter section, p 35 et seq.
Charter, title 4, eh 2, § 15 . . charter section, p 39.
Ordinance 38-E .. ordinance section, eh 23, p 37 et seq_.—Reporter.
PA 1929, No 36 (CL 1948, § 691.501 et seq. [Stat Ann § 27.501 ■et seq.J), | [
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Carr, J.
It does not appear that there is any substantial dispute as to the material facts involved in this case. During the summer of 1954, and for some time prior thereto, the defendant Zephyr Awning-Corporation was engaged in business at Muskegon, Michigan, as a manufacturer and distributor of aluminum doors, windows, and awnings. Its selling-activities were conducted in western Michigan, the northern part of Indiana, and in northwestern Ohio. At the time in question the Ace Industries Company, an Ohio corporation, was engaged in manufacturing windows and doors at Youngstown, Ohio.
Desiring to obtain a further source of supply for materials that it was handling, defendant, through its president. and general manager, wrote to Ace Industries for the purpose of instituting negotiations leading to a possible business arrangement. A telephone conversation followed, and defendant’s president was invited to visit the office and factory of Ace Industries, which invitation was accepted. The result was an oral agreement whereby, for a period of 3 years, defendant was to have an exclusive franchise for the selling of Ace Industries’ doors and windows, and possibly other manufactured products. The agreement was exclusive as to such sales, and defendant agreed not to handle any competing line. The territory covered by the so-called franchise was western Michigan, a part of Indiana, and the Williams county area in Ohio.
In accordance with the oral contract defendant placed certain orders for doors and windows with Ace Industries and the first of such orders were filled. Thereafter, however, some difficulties were encountered in obtaining prompt deliveries and in January, 1955, Ace Industries ceased to fill any orders from defendant and went into bankruptcy. It appears that the last shipment made was received by defendant on January 3d of said year.
Prior to the negotiations between defendant and Ace Industries which later culminated in the oral contract, the latter corporation, in December, 1953, entered into an agreement with the plaintiff in the instant case, a New York corporation, for the sale and purchase of accounts receivable. In accordance with this arrangement plaintiff became the owner of obligations on the part of defendant to Áce Industries resulting from the sale and delivery of merchandise pursuant to the oral agreement. Negotiations for payment having failed, plaintiff brought action in the circuit court of Muskegon county to recover on the accounts receivable, representing in the aggregate indebtedness for merchandise ordered by defendant and received by it, for which payment had not been made. There is no dispute in the case as to the total amount of said accounts.
Plaintiff’s declaration in the case did not refer to any contractual arrangement between defendant and Ace Industries for the purchase and sale of doors and windows, it apparently being plaintiff’s theory that each shipment made and received pursuant to order therefor constituted an independent transaction. Defendant by answer denied indebtedness to plaintiff and interposed a counterclaim, by way of recoupment, for damages claimed to have been sustained because of the failure on the part of plaintiff’s assignor to perform the contract with defendant. Defendant further alleged in its pleading that as a result of such failure it had sustained losses in the conduct of its business, and that the breach of contract on the part of Ace Industries prevented it from filling orders received by it and from obtaining new business, all to its serious detriment. It was also claimed that defendant was left with a stock of merchandise on hand that could not be disposed of without serious loss because of the failure of Ace Industries to supply doors and windows ordered which were essential to a balanced inventory.
Plaintiff filed its reply to defendant’s answer and claim of recoupment, raising certain objections to defendant’s right to plead a counterclaim, and also pleading by way of affirmative defense that the alleged contract on which defendant relied was void under the statute of frauds. On the trial of the case before a jury it was conceded by counsel for defendant that the merchandise represented by the invoices on which plaintiff relied had been received, and that payment therefor had not been made. As of the time of the trial it was stipulated in open court that the amount of the obligation of the defendant was $10,344.99. Under the plea of recoupment as amended defendant claimed damages in the sum of $12,000, but did not ask for an affirmative judgment for any excess of such damages over the aggregate of the amount of the obligations represented by the invoices covering shipments from Ace Industries to it.
At the conclusion of its proofs plaintiff moved for a directed verdict in its favor, which motion was denied. Following the closing of proofs the motion was renewed on various grounds, including the claim that the contract on which defendant’s alleged right to recoup damages was based was void under the statute of frauds. This motion was also denied, and the cause was submitted to the jury by which a verdict was returned in favor of defendant. Judgment was entered on said verdict, and plaintiff has appealed.
As before noted, defendant’s counterclaim rests on the theory of a valid contract between it and Ace Industries, the breach of said contract by the latter corporation, and resulting damage to defendant. The proofs in the case fully substantiate the finding of the jury, under the instructions of the trial judge, that the oral agreement was made as claimed. As averred in the plea of recoupment, it was for a 3-year period. Plaintiff insists that such contract was void under the statute of frauds, reliance being-placed in this regard on OL1948, § 566.132 (Stat Ann 1953 Rev § 26.922), which, insofar as material in the instant case, reads as follows:
“In the following cases specified in this section, every agreement, contract and promise shall be void, unless such agreement, contract or promise, or some note or memorandum thereof be in writing and signed by the party to be charged therewith, or by some person by him thereunto lawfully authorized, that is to say:
“1. Every agreement that, by its terms, is not to be performed in 1 year from the making thereof.”
Since the oral agreement was for a 3-year period it is obviously within the terms of the statutory provision quoted unless the proofs disclose a written note or memorandum, signed by the party to be charged or by a duly authorized representative thereof. On behalf of defendant it is asserted that correspondence between the Ace Industries and defendant may properly be regarded as a memorandum of the contract. Assuming- that the letters referred to may be considered together for the purpose of determining the matter of sufficiency to comply with the statute, the question is presented whether the essential provisions of the oral agreement are incorporated therein.
In discussing the matter of sufficiency under the statute of .frauds of a memorandum of an oral contract, it is said in 49 Am Jur, Statute of Frauds, §§ 353, 354, p 663 et seq.:
“The general rule is that the memorandum, in order to satisfy the statute, must contain the essential terms of the contract, expressed with such cer tainty that they may be understood from the memorandum itself or some other writing to which it refers or with which it is connected, without resorting to parol evidence. A memorandum disclosing merely that a contract has been made, without showing what the contract is, is not sufficient to satisfy the requirement of the statute of frauds that there be a memorandum in writing of the contract. * * *
“It is not sufficient that the note or memorandum express the terms of a contract; it is essential that it completely evidence the contract which the parties made by giving all of the essential terms. The writing must be such that all of the contract can be collected therefrom; resort cannot be had to the terms of the oral contract to supply deficiencies in the memorandum. A memorandum which refers to an essential term of the contract as one to be agreed on subsequently does not meet the requirements of the statute. A contract in writing which leaves some essential term thereof to be shown by parol is only a parol contract, and is, therefore, not enforceable under the statute of frauds.”
The general rule is stated in similar terms in 37 CJS, Frauds, Statute of, §§ 181, 182, p 666 et seq., and has been repeatedly recognized by this Court. In Palmer v. Marquette & Pacific Rolling Mill Company, 32 Mich 274, plaintiff brought an action for damages for breach of an alleged contract of employment which by its terms was not to be performed within 1 year from the date that the agreement was made. In discussing the situation Justice Cooley, who wrote for the Court, said:
“As he had counted upon a contract not to be performed within a year from the time it was made, it was incumbent on the plaintiff to show that the contract, or a memorandum thereof, was reduced to writing and signed by or on behalf of the defendants. And a memorandum, when the contract is not written out, must embrace all its substantial terms (except the consideration.—CL § 4702), and cannot he aided by parol evidence when essentially defective.—Hall v. Soule, 11 Mich 494; Abell v. Munson, 18 Mich 306 (100 Am Dec 165). It is impossible to say that the telegram contains all the essential terms of a contract. It fixes no time for the continuance of the employment, and it does not name the employment itself. The plaintiff insists that the use of the word ‘salary,’ in a sense evidently implying a year’s compensation, indicates that it was to continue a year at least, but if the bargain was thought by defendants to be favorable to their interest, it must be as much open to them to show that a term of years was agreed upon, as for the plaintiff to insist upon a single year. The one is just as consistent with what appears in the writing as the other.
“Then as to the employment: the plaintiff says the telegram engaged him in service as dock superintendent. But it is just as consistent with the dispatch, that Mr. Burt had in mind the position of private watchman, or master of one of the company’s vessels, if they have any. It is manifest that on some such matters, which are of the very essence of the contract, the telegram settles nothing.”
In Gault v. Stormont, 51 Mich 636, the Court considered the sufficiency of a memorandum of a sale of real estate in the form of a receipt for a part of the purchase price of the property, the total consideration being mentioned therein. It was held that such memorandum was insufficient under the statute because of failure to express the time of payment of the balance. The Court, speaking through Justice Cooley and citing prior decisions, declared that (p 638):
“A memorandum, to be sufficient under the statute, must be complete in itself, and leave nothing to rest in parol.”
Later decisions are in accord with the general rule announced in the early cases cited. In Benedek v. Mechanical Products, Inc., 314 Mich 494, plaintiff’s declaration was based in part on an oral agreement not to be performed within a year. Reliance was placed on a letter as constituting a sufficient memorandum to satisfy the statute of frauds. Said letter contained a statement to the effect that defendant had acquired from plaintiff exclusive manufacturing rights of a line of industrial and aeronautical high pressure hydraulic pumps. It recognized the existence of a contractual relation between the parties, but did not specify the terms of the contract. Commenting thereon, it was said (pp 503, 504):
“No mention is made in the memorandum of defendant’s agreement to sell, to pay royalties, the option to purchase patent rights, the length of term of the alleged agreement, that it covered transmissions and hydraulic pitch propeller hubs and accessories as well as high pressure hydraulic pumps. The memorandum is silent as to all the essential terms of the alleged contract claimed by plaintiff in count 1, on which plaintiff relies for recovery under that count.”
In support of the conclusion reached the Court cited and discussed a number of prior decisions, further emphasizing the position of this Court with reference to the contents of a memorandum essential to the validity of an oral contract otherwise void under the statute of frauds. In the case at bar defendant’s counterclaim rests wholly on an alleged right to recover damages for breach of the oral contract. No claim is asserted with reference to a recovery based on the quantum meruit theory, rather than on an express contract, as in Ordon v. Johnson, 346 Mich 38.
An examination of the correspondence between the parties leads to the conclusion that taken in the aggregate there is no memorandum of the oral contract containing the terms and conditions of the agreement with such certainty as to obviate the bar of the statute of frauds. Without discussing in detail the letters sent by Ace Industries to defendant, it must be said that they do no more than to indicate the existence of a contractual relation between the parties with reference to the sale and distribution of the manufactured products of Ace Industries. They contain expressions with reference to cooperation between the parties, the putting on of an energetic campaign in the fall of 1954, and the hope that the business association between the parties would result to the advantage of each. In one such letter we find an assurance to defendant that whatever it ordered would be furnished to it. The claim of counsel for plaintiff that the correspondence is made up very largely of “sales talk” is substantially accurate. Letters addressed by defendant to Ace Industries were preliminary to the making of the oral arrangement.
We do not find in the correspondence any material aid in determining what the oral agreement was. There is no mention of the specific territory within which defendant should exercise the so-called franchise, no statement as to the date when the contract would become effective, no declaration that the franchise granted to defendant should be exclusive or that defendant should not take on any competing line, no specification as to the length of time for which the agreement should continue, and nothing with reference to the terms of payments to be made for merchandise ordered and delivered. Further discussion of the contents and omissions of the correspondence between the parties is not required.
The letters to which counsel for defendant refer in their brief are not sufficient to constitute a memorandum of the oral contract under the provision of the statute of frauds above quoted. The conclusion cannot be avoided that the statute applies and renders void the oral contract for the breach of which defendant seeks to recoup damages. The conclusion follows that the claim of recoupment was' not well-founded, and that plaintiff was entitled to a directed verdict in accordance with its motion therefor at the conclusion of the proofs. The consideration of other questions argued by counsel in their briefs is unnecessary.
The judgment of the trial court entered on the verdict of the jury is reversed, and the cause remanded for entry of judgment in accordance herewith, with costs to appellant.
Dethmers, C. J., and Kelly, Smith, Black, Edwards, Voélker, and Kavanagh, JJ., concurred.
CL 1871, § 4702, now CL 1948, § 566.136 (Stat Ann 1953 Rev § 26.925).—Reporter. | [
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Voelker, J.
Once again we must face the perennially vexing problem posed by an elderly and usually ailing plaintiff who has conveyed his or her property to others in return for their promise to provide support and a home and later has repented of the bargain and sought to set the transaction aside.
In March, 1950, the plaintiff Millie Maxted was a wid'ovl over 70; she lived alone on a run-down 60-acre farm in Napoleon township some 10 miles from Jackson; her husband (and father of the woman defendant by an earlier marriage) had died the previous December and their children had long since' grown up and left the old home. Millie Maxted was ■lonely and not well. Besides her own 3. scattered children, she' had a stepdaughter, the defendant Mabel Workman, then in her late forties and married to Frank Workman, the other defendant, some 2' years'Mabel’s senior. The Workmans had had their ups ,and downs and Millie prevailed upon Mabel and Frank, who were renting furnished rooms, to‘come and live with her on the farm and take care of her ahd: the place -upon an informal arrangement, that this would thus pay for their rent. Thereafter she felt a little better and that spring and summer took occasional trips visiting her other children in various Michigan communities.
In Juñe, 1950, while visiting one of her children in Mt. Clemens-she became desperately ill from a stranghlatéd hernia df 'loilg standing. Peritonitis set in and she Was rushed to the hospital ft>r surgery.. For days she hovered between life and death. She was--convinced slie was gbiilg to die. She did not. The hospital ultimately needed her bed and her own children had their problems and were not in a position to take her in. She sent for Mabel and Frank to come take her home. They came... She remained' gravely ill for many weeks during which Mabel and Frank waited on her hand and foot, practically 24 hotírs' a day; ■ She kept a bell by her bed and used it often. Gradually she rallied, responding to their care, .and, still thinking her end was near, had them call an attorney to draw papers implementing the' transaction presently'described. The attorney. canie: and tiltiniately prepared a quitclaim deed of the farm-. and other necessary papers conveying the furniture and furnishings and an old automobile, all of which she signed. A life estate was reserved to the grantor in the deed. She and Mabel and Frank also signed an accompanying' agreement, pertinent paragraphs of which provided:
“Second parties in consideration of said agreement and transfers hereby agree to give and maintain a home for first party during the balance of her 'life, and to look after her, care for her, and see that her needs are taken care of so that she will have a home and be able to spend the balance of her remaining years in said home with good care to be furnished by second parties. •.
“Second parties further agree to take care of the necessary funeral expenses, if same have not already been taken care of, and to bury first party.at the place of her request.”
Millie Maxted underwent another , operation in November, 1950, and she was again hospitalized in January and February of 1951, where she had still other corrective operations, and again was brought back to the farm and again cared for by the defendants, Frank and Mabel Wortman.
Despite her age and repeated surgery, Millie Maxted made a remarkable recovery. By the early spring of 1951 she had so far recovered that in April she left the farm and took several housekeeping jobs • — staying at the farm briefly between jobs — eventually keeping house for a widower at Ellsworth for nearly 2 years, for which she was paid a salary in addition to her keep. She liked her last job and there are plain indications in the record that she also liked her employer and that they even considered matrimony. In any case she said she preferred to stay there rather than return to the farm. She worked for her last employer from November, 1952, until August, 1954. Jn the' meantime the defendants lived on at the farm, keeping it np and waiting for Millie’s return. When Millie’s employer died the Workmans wrote her to come home.
Our record grows a little dim concerning the activities of the plucky Millie following the dashing of her matrimonial hopes by the death of the old gentleman for whom she had last kept house, but it is clear that on May 17, 1955, she filed her bill of complaint in this case. In it she alleged that she was living with a daughter in Mt. Clemens. She related the agreement with and conveyances made to the Wort-mans. She then alleged nonperformance of their promises by the defendants in 3 particulars: that they had failed to provide her a home or support; had failed and refused to provide her needed medical attention; and had failed to keep the property in repair and pay the taxes. She alleged that she was destitute and was forced to live with a daughter in Mt. Clemens. She prayed for an injunction against conveyance by defendants, which was forthwith issued. She then prayed as follows:
“That the said deed to the said Frank Wortman and Mabel Wortman, husband and wife, dated July 25, A. D. 1950 and recorded in liber 532 of deeds at page 172, Jackson county records, be set aside, annulled and held for naught and that the defendants be required to surrender up the same to be canceled ; and that they be forever restrained and enjoined from setting up or claiming any estate, right or interest in or to the premises described in said deed, and that plaintiff be decreed to be the owner thereof and entitled to the possession of the same.”
This specific prayer was followed by the usual general prayer “That plaintiff have such other and further' relief as is agreeable to equity and good conscience.”
The defendants answered at length alleging, in substance, that they had performed their promises and had always made a home for the plaintiff and still stood ready to do so; more quaintly, that when she was sick they had nursed her like a baby night and day and had doubtless saved her life; that during their stay they had improved the property in excess of $2,500; and that they were now 55 and 53 years of age and had forsaken gainful years of employment and the possible acquiring of a home elsewhere in changing their lives to come and take care of and make a home for the plaintiff when she was without care and near death.
A full-dress hearing was had before the chancellor below. In her testimony the plaintiff related a series of small bickerings and minor misunderstandings that had crept into her relations with Mabel and Frank. It was her claim, in part of her testimony, that she felt that they ought to have paid all her medical and doctor and other bills; that the Wortmans quarrelled and bickered between themselves and made her nervous; that Frank seemed to have a permanent grouch and sometimes drank and occasionally came home “tight;” that at one time defendants’ married daughter and her husband had used plaintiff’s bed; that in April of 1951 she needed new teeth and glasses and had to go out to work so as to pay for them; and that she last stayed at the fai’m in February of 1952. At one point, referring to the deed and other papers, she said she did not know what she was signing, but this was not seriously urged below or here and is no factor in this case, other testimony and the balance of her own testimony being completely at variance with any such claim, which was not pleaded in any case.
It is evident from a fair reading of her testimony that the gallant Millie’s heart was not in her lawsuit. It seemed almost as though someone stood behind her driving her forward. (We may here anticipate a little and note that plaintiff’s daughter from Mt. Clemens was substituted as fiduciary plaintiff in Millie’s place following the latter’s death at or just prior to the changed decree, of which more presently-)
Thus, regarding her pleaded claim that the Wort-mans had breached their agreement in failing and refusing to support her and provide needed medical attention, she had this to say: “The Wortmans
didn’t have any money, so why — why say anything about it?” The fact that she knew from the start that the Wortmans had no money and that she never really expected them to pay her medical and other personal bills is clearly spelled out elsewhere in her testimony. In fact it seemed rather to bewilder and irritate her that the lawyers should ask her such obvious questions.
Aside from her general categorical claim that the Wortmans sometimes bickered between themselves and made her nervous, she had little or nothing adverse to say regarding their deportment toward her. At one point she said of her stepdaughter’s husband: “I never had any trouble with Mr. Prank Wortman.” At other places she spoke of how well she got on with the Wortmans. At no place did she question their devoted care of her when she was so ill.
Regarding her reasons for leaving the farm she had this to say: “I did not leave because I was going to get married. There was talk about marriage, but I didn’t leave on that occasion [for that reason?]. * # * The Wortmans' wrote a letter and said I could [come?] back if I wanted to, but I liked this place where I was working at that time and wanted to remain there. That was after he died that they wrote, but up until then, I preferred to stav there.”
Plaintiff’s own daughter had this, in part, to say:
“My mother was in a very had condition and she wanted to go home, and I asked her if she meant going home back out to Jackson, and she said, ‘Yes’. And so I called Mabel and I explained to her the exact condition my mother was in and find out if she felt able to take care of my mother to come home. She wanted her to come home, and she was perfectly willing and able to take care of my mother.”
Among other things, defendant Mabel Wortman had this to say:
“My husband and I have paid all of the taxes, all except the last one, and I have been tied up by an injunction since a suit was started. I was concerned in having her get well. I honestly believe that -my husband and I religiously looked after her. I "certainly never asked her to leave the farm. I begged her to come back. I asked her to come back. We drove her up north and she went up to see this man. 1 took her at her request to Mt. Clemens. Her 2 daughters and her son had other obligations, and it was her request to live at home, and we lived there, and I felt that it was her home and her place to be, and I still do. I don’t know whether I ever told her that I would use my own good judgment in calling a doctor, hut I did call a doctor whenever I saw fit, whether it was the middle of the night, or any time. There was times when she laid unconscious — perhaps she don’t remember it — and the doctor was there. I couldn’t give any person any better care than I gave her.
“She was in bed in a critical condition. The first 2 days she was home she did wait on herself, and then for several weeks after that, she didn’t. That care involved 24 hours a day, and my husband and I gave her night-and-day care at home. I certainly never told her never to come home and I tried to get her to come, yes, and I have got letters where she said she knew I wanted her to come home, hut she didn’t want to. She wanted to be independent and work, and she didn’t want to be put on the shelf. She never said anything about paying for her teeth, and she went to work and bought new teeth, and she bought lots of things, lots more than I could buy for myself, that’s for sure. She certainly did pay for having the papers drawn. She did make the statement that that was her home. She wanted it that way. She wanted to be free to come and go, and lots of times she left when I didn’t feel she was in condition to be traveling. I certainly would like her back today, and I certainly would do everything possible to help her. I don’t think she and I have ever had any cross words. She is my stepmother.
“We paid for very nearly all of the prescriptions that were filled, and there were many prescriptions filled. I did not pay the doctor. That was her doings. We didn’t have an opportunity to pay them. I called the doctor when I saw fit. I figured she needed a doctor. We paid $70.78 for taxes for the year 1950 on March 1, 1951, as soon as we got the money from the income tax. The first 3 months she was there after the papers was signed, she was bedridden, and then she was in the hospital.”
Frank Wortman testified, in part, as follows:
“Well, I never kept track of the material I put into the property, but I sure put a lot of material into it, and a lot of work. I bought the lavatory and made it easier for her. Whatever I done, I done for her. I put new linoleum on the kitchen floor, painted the inside and outside, fixed the back porch, which was falling down when I got there, put in a new dry well, fixed the plumbing, and improved the property by more than $2,500.”
A daughter of defendants had this to say:
“I have been in the home, and she kept, grandma kept her pretty busy. I have seen mother cooking the meal and grandma would ring the bell and hurry her up if she didn’t come right away. Mother would have to attend her and serve her her meals, and get the meals, and so forth. Mother was there constant ly. Her health was very had when I went there. My grandma never complained to me that my mother wasn’t doing everything for her. I never heard any complaint of any kind.”
After briefly reviewing the facts and testimony the trial court dismissed the case and in its accompanying opinion had this, in part, to say:
“Now the sole question, as the court sees it, is: Should the Workmans reimburse her for the doctor and hospital hills that she voluntarily paid herself? She knew her condition when she came to the Wort-mans, and asked them to come and stay on the farm and make a home there for her. And, nothing was ever said that they should be required to pay these doctor and hospital bills. Nothing was ever shown that they had the means to do that. * * *
“Under all of the circumstances of this case, the court does not feel that at the time the instrument was drawn, the plaintiff ever expected the defendants to pay for the hospital bills that she undoubtedly knew that she would have to pay, and which she voluntarily paid, herself. While she was at the farm Mrs. Wortman gave her good care and she regained her health so that she could go out and go to work, which was all her own doing.
“Under the circumstances of this case, the court denies the relief asked, and, therefore, the bill of complaint may be dismissed.”
Thereafter the plaintiff moved for rehearing on the ground that alternative relief should have been granted under its prayer. Thereafter the court filed another opinion as follows:
“This is a motion to reconsider the matter of allowance to the plaintiff. The plaintiff moved away from the farm and the defendants have not had her support. She has lived apparently in various places, and contract for her support, of course, could not be fully complied with. There is no question but what the defendants have been ready and willing to help her, but apparently, she, being an old lady, and having ideas to go elsewhere, left the farm.
“Now the question before the court is whether the-decree that was heretofore entered dismissing the bill should be reconsidered and amended.
“The court has given this matter a great deal of attention and feels that, under all of the circumstances, it should be changed to help pay for the care, funeral expenses, et cetera, of the plaintiff, so the court is ordering that a new decree may enter making this farm in the name of the plaintiff and the defendants, with an undivided equal share to the plaintiff and defendants. This will provide for compensation for all the defendants have been to, and also provide for the support of the plaintiff and for her last sickness and funeral expenses. '■ , ,-',
“A decree may enter accordingly.”
Thereafter the court vacated the old decree and entered 'a new decree in conformity with its last opinion. This appeal has resulted.
We think the learned chancellor was right the 'first time and that the bill of complaint should have remained dismissed. In our view this result could and should have been reached on either of 2 grounds. The first is that the plaintiff neither alleged nor prayed for the kind of relief ultimately given. In this connection we note that our court rule (Court Rule No 21, § 2 [1945]) provides that “The prayer of every bill of complaint shall be divided into paragraphs numbered consecutively, and shall specify the particular relief which the plaintiff shall conceive himself entitled to, and may also contain a prayer for general relief.” We assume that this rule ¿leans what it says, yet we seem to remark a growing tendency among certain segments of the profession to ignore the forepart of this rule and instead lean heavily on the last phrase as a presumably easy •substitute for excessive cerebration or careful pleading.
It is true tbat tbere is some authority in this State for the proposition that in a proper situation equitable relief may occasionally be granted although not specifically prayed for. Sometimes we have granted it here on our own motion. But more often we have held that the relief granted should be limited to that supported by specific allegation and prayer of the bill (see discussion and cases cited in Callaghan’s Michigan Pleading and Practice, §§ 23.13 and 42.42). One of our latest utterances and holdings on this subject is found in Shell Oil Company v. Mammina, 353 Mich 9 at page 18.
In our present case the plaintiff chose to rest her «ase on the theory and allegations that the defendants had “wilfully” breached their agreement to provide her a home. Aside from her specific prayer for an injunction against alienation she asked for uothing less (or more) than that the deed be can-celled and set aside. The chancellor found — and properly, we think — that there was no showing of breach by defendants. He accordingly dismissed the bill. As noted, the plaintiff then moved for rehearing on the ground that the decree “should have provided for the alternative relief prayed for by the plaintiff.” We find no such prayer for alternative relief, nor any amendment either to the body or prayer of the bill, and we do not think this case presents one of those comparatively rare situations where alternative relief should be granted despite the lack of a specific prayer therefor. This area of ■the law does not lend itself to dogmatism, but we think that those who seek equity may fairly be expected to give the chancellor and the other side at least a moderately adequate clue of precisely what it is they seek and why.
We prefer, however, to rest our decision on the larger ground that the chancellor below should not have given the plaintiff the relief he ultimately granted even had she specifically alleged her right to and prayed for the same. In saying this we are aware, as appellee suggests, that we have occasionally held that even where the setting aside of a deed in consideration of support for life is refused, because of lack of proof of breach, the decree in a proper case might nevertheless award alternative relief, such as a lien on the property as security for the performance-by the grantee of his agreements. (See, generally, test and footnotes to 11 Callaghan’s Michigan Pleading and Practice, § 85.39.) But it is not true, asappellee avers in her brief, that “Where the court found that, as a matter of fact, the grantees had not breached their agreement, the transactions were not cancelled or set aside, but the court, in every instance, required the grantees to pay for the support and maintenance of the grantors from the time the-parties separated.” (Emphasis added.)
In the first place it is unthinkable that it is the law of this State that a chancellor must in every case-abandon all judicial discretion and out of hand grant such alternative relief to all plaintiffs who have-otherwise failed to prove their main case. It is not only unthinkable but it happens not to be the law. Indeed in the usual case where no breach is proved no relief whatever is granted. Our reports teem with such cases. Alternative relief of any kind is granted only where there remain compelling- and disturbing equities despite the lack of clear breach. The McKnight Case (McKnight v. McKnight, 212 Mich 318), and related cases cited by appellee for affirmance, in our opinion present residual and lingering plaintiff equities — which we do not here propose to calibrate — which are clearly not present in this case. Only recently we have held (Latowitz v. Tomazzewski, 353 Mich 441) that upon our finding that no breach was shown below the entire relief there granted plaintiff had to be set aside. In that case the equity of the plaintiff’s situation was arguably every bit as strong if not stronger than that presented here.
In the second place, even if the rule were that ■enunciated by appellee, that is not what the ehan■cellor did in this case; instead he undertook to award the plaintiff a half interest in the farm. The question is: was he warranted in doing so? "We think not. If he took this action in order to give the plaintiff security for future performance of the agreement — as has sometimes been done — we think she already had adequate protection and security under the life estate reserved to her in her deed. Further, it appears plain from her testimony that she did not want or ever intend to go back to the farm. Moreover, since she appears to have died at or just prior to the time of the new decree, her need for future earthly security appears to have fled, and the net result of the changed decree was to present strangers to the transaction with the gift of a half interest in the farm despite the chancellor’s finding and declaration that the defendants had faithfully performed their undertakings. In effect it was to penalize the defendants for their devotion and diligence in having saved Millie’s life and to reward those who had no part in that worthy enterprise. In fairness we should add that the record is not clear whether the chancellor was aware of plaintiff’s death when he made the new decree. In any case we are reluctant to agree with the result.
We are aware that we usually, and properly, allow the chancellor a broad discretion in reaching his ■decision in cases of this nature. He is there on the firing line and we are not. He sees and hears things that we can but sense. But here there is no dispute-whatever on the moving facts. The chancellor properly found no breach by defendants. In essence the-decision below boils down to this: despite performance by the grantees the reformation of a deed will be decreed simply because the grantor changed her mind. This strikes us as possessing dubious equity and as being equally dubious from the point of view of the soundness and security of conveyances and land titles. With all due respect to the obvious effort of the learned chancellor to be fair and just to all concerned, we cannot bring ourselves to agree with the result.
The decree appealed from must accordingly be set aside and the injunction dissolved. A decree tíiáy be entered here dismissing the bill of complaint,, with costs to the prevailing parties.
Smith, Black, Edwards, and Kavanagh, JJ., concurred with Voelker, J.
Dethmers, C. J., and Carr and Kelly, JJ., concurred in the result. | [
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Voelker, J.
An action of trespass on the case was brought by plaintiff, Willie Taylor, a laborer, to recover damages against the defendant and appellant, Dr. Samuel B. Milton, a practicing physician, resulting from his alleged negligence arising out of an operation performed on March 25, 1952, and his alleged concealment of that negligence from the plaintiff.
Plaintiff being unable to pass his urine went to see the defendant doctor, who inserted a catheter, to which was attached a filiform, through plaintiff’s urethra for the purpose of relieving a stricture and thus giving plaintiff relief. During the operation a portion of the filiform broke off from the catheter and ultimately passed into plaintiff’s bladder.
The trial court ruled that defendant was not negligent in performing the operation, but submitted to the jury the question of whether defendant concealed from plaintiff his knowledge of the filiform in plaintiff’s bladder, and the further question of whether he neglected and failed to continue proper treatment after the mishap. The jury returned a verdict in favor of the plaintiff in the sum of $2,500. The trial court denied defendant’s motions for judgment notwithstanding the verdict and for a new trial and entered judgment on the verdict. The case is here on appeal from that judgment.
We observe that defendant in his appeal alleges 52 separate grounds of error, most of which are irksomely repetitious. While this scatter-gun approach may possess a certain primitive effectiveness when a man seeks to persuade another to marry his daughter, it scarcely persuades this Court. Such time-consuming and vexingly repetitious matter not only fails to persuade us but could very well have been a serious ground for dismissal of this appeal had we felt disposed or had the appellee made a timely mo tion to that end. (Court Rule No 70, § 5, as added October 30,1956. ) "We will accordingly not burden this opinion by undertaking to discuss all of the allegations of error submitted by the appellant, but only those possible grounds of error which we have painstakingly been able to dredge from appellant’s endlessly repetitious presentation. -
Appellant’s first allegation of error, as thus boiled down, is that he was not apprised of the crucial question of concealment before the trial. This allegation is unfounded, as the question is clearly set out in paragraphs 7 and 9 of the declaration and the pretrial statement also takes cognizance of the question by referring to “negligence and unprofessional conduct.” Further evidence of the fact that defendant was fairly apprised of the question of concealment is found in the defendant’s own answer to the declaration and his extensive proofs on the precise subject in the trial court.
Appellant also claims error by the trial court in not granting him a continuance to enable him to prepare special questions and directions to the jury on the claimed surprise issue of concealment. Having already decided that the defendant had adequate notice of the question of concealment, further discussion of the trial court’s failure to grant a continuance would be irrelevant. There having been adequate notice, there were no grounds therefore on which to grant a continuance, and we find no abuse of discretion by the court.
Appellant’s next claim of error concerns the admission in evidence of the filiform that had been removed from the plaintiff’s bladder. Appellant claims this was error because the plaintiff had not preceded his offer with a proper foundation, supporting this claim by an'extensive quotation from Wigmore’s learned treatise on evidence concerning the necessity of laying a proper foundation for the admission of chattels into evidence. It was the ruling of the trial judge, with whom this Court agrees, that the sworn statement of the plaintiff that the offered filiform was the same one that his subsequent doctors at.the University of Michigan hospital had shown him immediately after operating to remove it from his body, coupled with the fact that defendant had in his possession the other end of the broken filiform, with which we assume he could easily have refuted the authenticity of the offered one, was an adequate foundation for its admittance. In any case even if there had not been an adequate foundation laid for the admission of the broken filiform, its admission could scarcely have been prejudicial error because the defendant had already admitted leaving a filiform in plaintiff’s bladder. The crucial question put to the jury was not whether he had left this or some other filiform in plaintiff’s bladder but rather, having concededly done so, had he or had he not thereafter concealed from the plaintiff the fact that it was there. We think the jury was entitled to see what kind of object it was that had been left there, and under the circumstances we think any similar filiform would have been equally adequate and properly admissible.
Appellant further urges several grounds of error by the trial court in not requiring expert testimony on the subject of the type and degree of care that should have been administered to the plaintiff after the defendant learned of the filiform being in his bladder. These allegations of error can best be answered by quoting the relevant instructions to the jury:
“Now, in the majority of cases, as I told you, where malpractice is before a jury or a court, the profes sional standard of practice is necessarily involved .and requires testimony of competent experts, and that would have been true insofar as that which happened on March 25th is concerned, but in this case I charge you that there is no question of skill or judgment, no question of practice beyond the knowledge of laymen, because you are only considering the one question: Did he or did he not conceal the presence of this filiform in the bladder of this plaintiff.”
This statement finds square support in LeFaive v. Asselin, 262 Mich 443. We are concerned here with a broken needle-like steel-capped object some 12 inches long admittedly left in a man’s bladder. To borrow Mr. Justice Wiest’s much-quoted phrase in Ballance v. Dunnington, 241 Mich 383, 387 (57 ALR 262), even the “merest tyro” might know that a doctor’s concealment of such a state of affairs from a patient was impropér.
Having perused the 52 points of error as set out by the appellant we feel that the possibly meritorious subject matter therein has been fairly and adequately covered in the digested form presented in this opinion. Appellant’s bombardment having ceased, we perceive through the lifting haze that none of the 52 pellets fired from his blunderbuss has hit the target. The judgment of the trial court must accordingly be affirmed, with costs to appellee.
Smith, Black, Edwards, and Kavanagh, JJ., concurred with Voelker, J.
Dethmers, C. J., and Carr and Kelly, JJ., concurred in the result.
347 Mieh xxx.—Reporter. | [
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Williams, C.J.
I. Introduction
The issue in this case is whether inculpatory statements deliberately elicited from a defendant by sheriffs detectives immediately after sentencing and in the absence of retained or appointed counsel are admissible under Const 1963, art 1, § 20 for impeachment purposes in a subsequent trial of the same cause. For purposes of this case, we do not decide whether the inculpatory state ments were involuntary or not. This is an issue of first impression in this Court and has not been ruled on by the United States Supreme Court.
The above issue arises from a situation where the defendant, after being sentenced on a plea-based conviction which was later overturned, was prodded into accompanying two sheriffs detectives to retrace his route on the night of the killing he was accused of having committed. The defendant had requested consultation with his counsel, but the officers told the defendant that counsel had given them permission to speak with him. It is unclear whether the detectives were mistaken or prevaricated about the permission from counsel. The evidence shows that defense counsel did not give the detectives permission to talk with the defendant. During his trip with the detectives, defendant made certain inculpatory statements.
We hold that under Const 1963, art 1, § 20 the defendant had the right to counsel when the inculpatory statements were elicited from him. Since these statements were elicited in the absence of counsel, defendant’s right to counsel was violated unless the prosecution can show that defendant waived his right. In this regard, we hold that the prosecution did not meet its burden of proving that the defendant knowingly, intelligently, and intentionally relinquished his right to counsel. Finally, we hold that, under Const 1963, art 1, § 20, the inculpatory statements in question elicited in violation of defendant’s right to counsel are inadmissible for impeachment, as well as for substantive purposes. We reverse the judgment of the Court of Appeals and remand for a new trial.
We note that the defendant also argues that the inculpatory statements in question were inadmissible for impeachment purposes on three other grounds: first, because the statements were invol untary; second, because the statements were taken in violation of Edwards v Arizona, 451 US 477; 101 S Ct 1880; 68 L Ed 2d 378, reh den 452 US 973; 101 S Ct 3128; 69 L Ed 2d 984 (1981); and third, because the admission of the statements was more prejudicial than probative, see MRE 403. In light of our resolution of the art 1, § 20 right to counsel issue, we find it unnecessary to address any of these arguments. In addition, the defendant raises three separate issues. The first concerns the admissibility of certain rebuttal testimony. The second concerns alleged errors in the prosecutor’s closing argument. The third deals with the sentencing judge’s failure to consider a portion of a presentence psychiatric evaluation. We do not consider these three alleged errors inasmuch as they would not be dispositive and are unlikely to occur on retrial.
II. Facts
On October 30, 1980, the defendant, Jerry E. Gonyea, was convicted of second-degree murder following a jury trial in Alpena Circuit Court. On February 20, 1981, the defendant was sentenced to life imprisonment. The Court of Appeals affirmed. We granted leave to appeal.
The defendant was convicted of having shot Leslie Herron. It seems that in the early morning hours of February 12, 1976, Ms. Herron left an Alpena bar in her car. The defendant followed her to a driveway on Catherine Street. At that point Ms. Herron entered the defendant’s car, either through force or voluntarily. The two proceeded to a point several miles away on Hamilton Road, where Ms. Herron was shot. The prosecutor attempted to show that defendant intentionally shot Ms. Herron because she had continually spurned his advances.
The defendant argued that the shooting was accidental as hereinafter set forth. He testified that he was having an affair with Ms. Herron and that when he informed her that he was breaking off their relationship, she became extremely upset. As they were driving around in defendant’s car, Ms. Herron complained that her toe had been injured. The defendant stopped the car and got out. He went around to the passenger side and opened the door. He then opened the glove compartment to obtain some tissue for Ms. Herron’s toe. Ms. Herron, while still in the car, placed her feet outside the car on the pavement. She saw a gun in the glove compartment; and while defendant was leaning over her, she grabbed the gun. The two struggled over the gun and it discharged. The defendant indicated that he did not know who was holding the gun when it went off.
On November 5, 1976, the defendant pled guilty to second-degree murder in connection with the shooting death of Ms. Herron. He was sentenced on November 10, 1976, to life imprisonment. After sentencing, the defendant was taken to a separate room for holding purposes. The defendant was approached by two sheriff’s detectives who asked the defendant to go with them so that they could clear up certain unresolved matters in their investigation regarding the killing. They reminded the defendant that he had earlier promised to accompany them when it was all over. The defendant asked, "What about my attorney? Shouldn’t he be present?” The detectives advised the defendant that they had spoken with his attorney and that counsel had given them permission to talk with him.
It seems that the detectives had approached defense counsel several times seeking permission to talk to the defendant. The testimony indicated that defense counsel at no time gave them permission to talk to the defendant.
In any event, following the above representations made to defendant, he agreed to accompany the sheriffs detectives. The three men, in a sheriff’s car, then retraced the route defendant took on the night of the killing. Among other things, the defendant told the detectives that when the shooting occurred, both he and Ms. Herron were standing outside the car, and that he was holding the gun.
After a lengthy appellate process, the defendant’s plea-based conviction was reversed. In the subsequent trial, defendant filed a pretrial motion to suppress for impeachment purposes the use of the statements defendant made to the detectives on November 10, 1976. The prosecution conceded that the statements were inadmissible in its case in chief. Following a hearing, the trial court denied defendant’s motion. The defendant moved for reconsideration and filed an application for leave to appeal to the Court of Appeals. Both were denied.
During trial, the trial judge ruled that of the November 10, 1976 statements sought to be used for impeachment, only defendant’s statements concerning the position of Ms. Herron and the defendant, and those indicating that defendant was holding the gun, were inconsistent with defendant’s trial testimony. Therefore, only those statements could be used for impeachment. On rebuttal, the prosecutor admitted evidence in accordance with the trial judge’s ruling.
III. Waiver of Counsel: Admission as Direct Evidence
The Sixth Amendment of the United States Constitution, inter alia, guarantees a defendant the right "to have the Assistance of Counsel for his defence.” US Const, Am VI. This right was adopted in those very same words in Const 1963, art 1, § 20, where it is stated that "the accused shall have the right ... to have the assistance of counsel for his defense . . . .”
While both of the above provisions guarantee the right to counsel, in rendering our decision today, we rely solely upon the Michigan Constitution. Const 1963, art 1, § 20. Since Const 1963, art 1, § 20 provides an adequate state ground for our decision, we find it unnecessary to address the issues before us under the United States Constitution. Although we do not reach the federal question, we will, however, look to cases construing the Sixth Amendment. Inasmuch as Const 1963, art 1, § 20 and the Sixth Amendment are identical in language insofar as the right to counsel is concerned, a review of relevant federal cases can guide us in interpreting our constitution.
There are certain rules associated with the art 1, § 20/Sixth Amendment right to counsel that simply cannot be questioned. A person is entitled to the assistance of counsel at least "at or after the time that judicial proceedings have been initiated against him . . . .” Brewer v Williams, 430 US 387, 398; 97 S Ct 1232; 51 L Ed 2d 424, reh den 431 US 925; 97 S Ct 2200; 53 L Ed 2d 240 (1977), quoting Kirby v Illinois, 406 US 682, 689; 92 S Ct 1877; 32 L Ed 2d 411 (1972). Any interrogation after that date without the presence of an attorney constitutes a violation of the defendant’s right to counsel, unless the defendant has waived his right. Brewer v Williams, supra, pp 401-404; Massiah v United States, 377 US 201, 204-206; 84 S Ct 1199; 12 L Ed 2d 246 (1964). "[T]he right to counsel does not depend upon a request by the defendant. . . Brewer v Williams, supra, p 404.
In the instant case, there is no question that the inculpatory statements were deliberately elicited from the defendant after judicial proceedings had been initiated against him. The only question might be whether the judicial proceedings had ended, because the inculpatory statements were not elicited until after sentencing. In this regard we agree with the Court of Appeals that the "right to counsel is applicable to post-trial statements when appeal is not final. See Cahill v Rushen, 501 F Supp 1219 (ED Cal, 1980) [aff'd 678 F2d 791 (CA 9, 1982)].” People v Gonyea, 126 Mich App 177, 183; 337 NW2d 325 (1983). If the right to counsel is to remain appropriately meaningful, the right must extend until the appeal is final. An attorney’s advisory role does not end at sentencing. See Cahill v Rushen, 678 F2d 794-795; Cahill v Rushen, 501 F Supp 1223. This is especially true in light of the fact that the appellate process is not the end of a defendant’s prosecution, and may very well be just a new beginning, in that frequently trial errors result in the ordering of new trials on appeal. See Cahill v Rushen, 678 F2d 794-795; Cahill v Rushen, 501 F Supp 1223. Thus we hold that the defendant here did have the right to counsel after sentencing when he was with the detectives.
Since the defendant had the right to counsel at the time when the inculpatory statements were deliberately elicited from him, the only real issue is whether he waived this right. In Johnson v Zerbst, 304 US 458, 464; 58 S Ct 1019; 82 L Ed 1461 (1938), the Court stated:
"A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.”
This basic test was reaffirmed in Brewer v Williams, 430 US 387, 404; 97 S Ct 1232; 51 L Ed 2d 424 (1977):
"[I]t was incumbent upon the State to prove 'an intentional relinquishment or abandonment of a known right or privilege.’ Johnson v Zerbst, 304 US at 464.
"[C]ourts indulge in every reasonable presumption against waiver, e.g., Brookhart v Janis [384 US 1, 4; 86 S Ct 1245; 16 L Ed 2d 314 (1966)]; Glasser v United States, 315 US 60, 70 [62 S Ct 457; 86 L Ed 680 (1942)]. This strict standard applies equally to an alleged waiver of the right to counsel whether at trial or at a critical stage of pretrial proceedings. Schneckloth v Bustamonte, 412 US 218, 238-240 [93 S Ct 2041; 36 L Ed 2d 854 (1973)]; United States v Wade, 388 US [218, 237; 87 S Ct 1926; 18 L Ed 2d 1149 (1967)].”
From the foregoing it is clear that the Brewer/ Zerbst waiver rule requires that for a valid waiver, defendant must know of his right and must intelligently and intentionally relinquish it. This was illustrated by Justice Marshall in his dissenting opinion in Wyrick v Fields, 459 US 42, 54; 103 S Ct 394; 74 L Ed 2d 214 (1982):
"The State must show that the defendant intelligently and knowingly relinquished his right not to be questioned in the absence of counsel. The State can establish a waiver only by proving 'an intentional relinquishment or abandonment’ of the right to have counsel present. Brewer v Williams, supra, at 404, quoting Johnson v Zerbst, 304 US 458, 464 (1938).”
Finally, in Adams v McCann, 317 US 269, 279; 63 S Ct 236; 87 L Ed 268, reh den 317 US 713; 87 L Ed 568 (1942), the Court explained the importance of the fact that the defendant’s choice be made with open eyes:
"The right to assistance of counsel and the correlative right to dispense with a lawyer’s help are not legal formalisms. They rest on considerations that go to the substance of an accused’s position before the law. The public conscience must be satisfied that fairness dominates the administration of justice. An accused must have the means of presenting his best defense. He must have time and facilities for investigation and for the production of evidence. But evidence and truth are of no avail unless they can be adequately presented. Essential fairness is lacking if an accused cannot put his case effectively in court. But the Constitution does not force a lawyer upon a defendant. He may waive his Constitutional right to assistance of counsel if he knows what he is doing and his choice is made with eyes open. Johnson v Zerbst, 304 US 458, 468-69.”
The above principles established in Zerbst, Adams, and Brewer were, in fact, noted in my separate opinion in People v Leonard, 421 Mich 207, 219-227; 364 NW2d 625 (1984), in relation to Const 1963, art 1, § 20. On the facts of this case, we are not convinced that there was a valid waiver under the standards set forth above.
While there is some indication in the record that at some point the defendant stated that he did not need his attorney, the record is clear that when the detectives asked the defendant to accompany them and retrace the events that took place on the eve of the killing, defendant specifically asked about his attorney. More importantly, the detectives responded to defendant’s inquiry by telling him that defense counsel had given them permission to question him, when in fact defense counsel had refused such permission. Thus it was impossible for the defendant to have any sort of informed choice. Therefore, we hold that the defendant did not intentionally and intelligently waive his known right to counsel.
In accordance with the above discussion, since the inculpatory statements in question were deliberately elicited from the defendant at a time when he had the right to counsel, and since the defendant did not waive his right to counsel, we hold that the statements were taken in violation of his art 1, § 20 right to counsel.
IV. Confession in Violation of Defendant’s Right to Counsel for Impeachment
Now that we have concluded that the defendant’s inculpatory statements were taken in violation of his right to counsel, we determine whether the trial court erred in admitting those statements to impeach the defendant’s testimony. The prosecutor urges us to extend the reasoning of Harris v New York, 401 US 222; 91 S Ct 643; 28 L Ed 2d 1 (1971), and hold that while statements taken in violation of defendant’s right to counsel may not be used for substantive purposes, they may be used to impeach the defendant. The defendant, on the other hand, urges us to reject the analogy of the Harris Fifth Amendment decision to a Sixth Amendment violation of counsel situation, and to adopt an approach under Const 1963, art 1, § 20, which would render statements taken in violation of defendant’s right to counsel inadmissible for either substantive or impeachment purposes. We find the logic of the defendant’s position more compelling.
Initially, we repeat that there is no question here as to the inadmissibility of defendant’s statements for substantive purposes. At trial, the prosecutor conceded that the statements were not ad missible for substantive purposes and only sought their admission as impeachment evidence. The trial judge’s ruling focused solely on that issue and ruled the statements admissible.
In Harris v New York, supra, the defendant was impeached on cross-examination with statements he made to the police immediately following his arrest. The prosecutor had conceded that such statements were inadmissible in his case in chief under Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966), and defendant made "no claim that the statements made to the police were coerced or involuntary.” Harris, supra, p 224. The United States Supreme Court held that statements taken in violation of Miranda, while not admissible in the prosecution’s case in chief, could be used to impeach the defendant:
"Some comments in the Miranda opinion can indeed be read as indicating a bar to use of an uncounseled statement for any purpose, but discussion of that issue was not at all necessary to the Court’s holding and cannot be regarded as controlling. Miranda barred the prosecution from making its case with statements of an accused made while in custody prior to having or effectively waiving counsel. It does not follow from Miranda that evidence inadmissible against an accused in the prosecution’s case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards.
* * *
"The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.” Harris, supra, p 226. See Oregon v Hass, 420 US 714; 95 S Ct 1215; 43 L Ed 2d 570 (1975).
We embraced Harris rationale in People v Graham, 386 Mich 452; 192 NW2d 255 (1971), which, like Harris, involved an alleged violation of Fifth Amendment rights. We refuse, however, to embrace Harris here. Harris is distinguishable on two grounds. First, Harris involved Fifth Amendment rights, not art 1, § 20/Sixth Amendment rights as we are faced with here. Secondly, we note that Harris is factually inapposite. The Harris police misconduct was not nearly as flagrant as is present in this case. In Harris, the prosecutor sought to impeach the defendant with voluntary statements made to police immediately after his arrest. Although the defendant hád not been properly advised of his Miranda rights, there was no indication that defendant was rushed or prodded into making the statements. By contrast, in this case, the detectives without permission of counsel, approached the defendant in a psychologically vulnerable condition after receiving a life sentence and, in response to his inquiry about counsel, told him erroneously that they had defense counsel’s permission to talk to him and then proceeded to coax defendant into retracing with them the events that transpired on the night of the killing.
The Harris line of cases involves a balancing of "the incremental deterrence of police illegality against the strong policy against countenancing perjury.” New Jersey v Portash, 440 US 450, 458; 99 S Ct 1292; 59 L Ed 2d 501 (1979). The Harris line of cases concluded that the balancing weighed in favor of admitting the inculpatory statements for impeachment. In the instant case, while we still do not condone perjury, we think that the violation of the defendant’s right to counsel by the detectives was so egregious that it tips the scale against admissibility of the evidence.
While all constitutional rights are important, the right to counsel has always been elevated to a particularly lofty status, because without this right the defendant may be denied the practical enjoyment of his other rights. People v Leonard, 421 Mich 219-224. See United States v Mohabir, 624 F2d 1140, 1149 (CA 2, 1980). In Johnson v Zerbst, 304 US 458, 462-463; 58 S Ct 1019; 82 L Ed 1461 (1938), the United States Supreme Court stated:
"The Sixth Amendment guarantees that 'In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.’ This is one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty. Omitted from the Constitution as originally adopted, provisions of this and other Amendments were submitted by the first Congress convened under that Constitution as essential barriers against arbitrary or unjust deprivation of human rights. The Sixth Amendment stands as a constant admonition that if the constitutional safeguards it provides be lost, justice will not 'still be done.’ It embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel. That which is simple, orderly and necessary to the lawyer, to the untrained layman may appear intricate, complex and mysterious.”
In light of the particular importance of the right to counsel, we are hesitant to tolerate any transgression. To permit law enforcement officers to obtain statements from the defendant in violation of his right to counsel, and to use those statements to attack the defendant and his case, would be to permit an attack on the very foundation of our criminal justice system. When the police are permitted to commit such a violation, the effect is to gnaw at the very pillars of democracy. The United States Supreme Court in Spano v New York, 360 US 315, 320-321; 79 S Ct 1202; 3 L Ed 2d 1265 (1959), made the following comments with respect to involuntary confessions:
"The abhorrence of society to the use of involuntary confessions does not turn alone on their inherent untrustworthiness. It also turns on the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves. Accordingly, the actions of police in obtaining confessions have come under scrutiny in a long series of cases. Those cases suggest that in recent years law enforcement officials have become increasingly aware of the burden which they share, along with our courts, in protecting fundamental rights of our citizenry, including that portion of our citizenry suspected of crime. The facts of no case recently in this Court have quite approached the brutal beatings in Brown v Mississippi, 297 US 278 (1936), or the 36 consecutive hours of questioning present in Ashcraft v Tennessee, 322 US 143 [64 S Ct 921; 88 L Ed 1192] (1944). But as law enforcement officers become more responsible, and the methods used to extract confessions more sophisticated, our duty to enforce federal constitutional protections does not cease. It only becomes more difficult because of the more delicate judgments to be made.”
Justice Brandéis, dissenting in Olmstead v United States, 277 US 438, 485; 48 S Ct 564; 72 L Ed 944 (1928), echoed a similar sentiment:
"Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means — to declare that the Government may commit crimes in order to secure the conviction of a private criminal— would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.”
Although the above quotations were made with reference to involuntary confessions, we find the reasoning particularly compelling here, where a right so important as the right to counsel is at stake. As previously noted, the right to counsel both ensures the defendant an adequate defense against all the forces of the state, and ensures the practical enjoyment of many other rights accorded a defendant. Thus any transgression of this right not only leaves the defendant vulnerable or helpless against the system but jeopardizes the realization of other rights. A right so important to the sound maintenance of our system of justice must be protected with the broadest prophylactic measures possible. Therefore, we must hold that a confession extracted in violation of defendant’s right to counsel is not only inadmissible for substantive purposes, but inadmissible for impeachment purposes.
In support of the position we have just taken, we note that the right to counsel has also been argued to be of such fundamental importance that it was unnecessary for us to even balance the violation of this right against condoning perjury. In other words, regardless of other considerations the right to counsel is so important that it must automatically be accorded the greatest protection. Support for this position can be derived from the Fifth Amendment case of New Jersey v Portash, 440 US 450, 458-459; 99 S Ct 1292; 59 L Ed 2d 501 (1979). In Portash, the defendant testified at a grand jury proceeding with the understanding that under New Jersey law, neither his statements nor any evidence derived from them could be used in subsequent criminal proceedings against him. Defendant was later charged with misconduct in office and with extortion by a public official. At trial, the trial judge ruled that the defendant’s grand jury testimony could be used to impeach him. As a consequence, the defendant refused to take the stand and was found guilty.
On appeal, the state, inter alia, argued that the rationale of Harris should be applied to the facts therein. In rejecting the prosecutor’s argument and upholding the reversal of defendant’s conviction, the Portash Court stated:
"But the State has overlooked a crucial distinction between those cases and this one. In Harris and Hass the Court expressly noted that the defendant made 'no claim that the statements made to the police were coerced or involuntary,’ Harris v New York, supra, at 224; Oregon v Hass, supra, at 722-723. That recognition was central to the decisions in those cases.
"The Fifth and Fourteenth Amendments provide that no person 'shall be compelled in any criminal case to be a witness against himself.’ As we reaffirmed last Term, a defendant’s compelled statements, as opposed to statements taken in violation of Miranda, may not be put to any testimonial use whatever against him in a criminal trial. 'But any criminal trial use against a defendant of his involuntary statement is a denial of due process of law.’ (Emphasis in original.) Mincey v Arizona, 437 US 385, 398 [98 S Ct 2408; 57 L Ed 2d 290 (1978)].
"Testimony given in response to a grant of legislative immunity is the essence of coerced testimony. In such cases there is no question whether physical or psychological pressures overrode the defendant’s will; the witness is told to talk or face the government’s coercive sanctions, notably, a conviction for contempt. The information given in response to a grant of immunity may well be more reliable than information beaten from a helpless defendant, but it is no less compelled. The Fifth and Fourteenth Amendments provide a privilege against compelled self-incrimination, not merely against unreliable self-incrimination. Balancing of interests was thought to be necessary in Harris and Hass when the attempt to deter unlawful police conduct collided with the need to prevent perjury. Here, by contrast, we deal with the constitutional privilege against compulsory self-incrimination in its most pristine form. Balancing, therefore, is not simply unnecessary. It is impermissible.”
By analogy, we are here confronted with the constitutional right to counsel "in its most pristine form.” Consequently, it may be argued that no balancing is permissible, and the confession must be held inadmissible for both substantive and impeachment purposes. The United States Court of Appeals, Second Circuit, applied exactly this rationale to a situation involving the admissibility for impeachment purposes of a confession taken in violation of a defendant’s Sixth Amendment right to counsel in United States v Brown, 699 F2d 585 (CA 2, 1983).
In light of the foregoing discussion, we conclude that whether, on the basis of a balancing approach or not, any inculpatory statements extracted from a defendant in violation of his Const 1963, art 1, § 20 right to counsel are inadmissible for both substantive and impeachment purposes.
In section II, part A, we determined that the inculpatory statements made to the sheriffs detectives by the defendant after sentencing, were taken in violation of defendant’s Const 1963, art 1, § 20 right to counsel. In this section, section II, part B, we concluded that any such statements were inadmissible for impeachment as well as for substantive purposes. The trial court here ruled that the prosecutor could impeach the defendant with the statements taken in absence of counsel. In this ruling, the trial court erred. Defendant’s statements are not admissible to impeach him.
V. Conclusion
The defendant had the right to counsel when the inculpatory statements were elicited from him. This right was unconstitutionally denied him. These statements, taken in violation of defendant’s right to counsel, are inadmissible for impeachment purposes as well as for substantive purposes under Const 1963, art 1, § 20. The trial judge and the Court of Appeals rulings were to the contrary. In this regard, their rulings were erroneous.
We reverse the judgment of the Court of Appeals and remand for a new trial.
Kavanagh and Levin, JJ., concurred with Williams, C.J.
Some members of this Court adopted the Harris rationale in People r Esters, 417 Mich 34; 331 NW2d 211 (1982). Esters, like Harris and Graham, involved a violation of Fifth Amendment rights, not Sixth Amendment rights.
We note that this Court distinguished Harris in People v Reed, 393 Mich 342; 224 NW2d 867 (1975), cert den Michigan v Reed, 422 US 1044, 1048; 95 S Ct 2660, 2665; 45 L Ed 2d 696, 701 (1975), on the ground that Harris involved a violation of Fifth Amendment Miranda warnings, whereas the Court there was confronted with an involuntary confession. Reed held that involuntary confessions are inadmissible for impeachment as well as for substantive purposes. Here we are confronted with an issue concerning the art 1, § 20/Sixth Amendment right to counsel, and do not address the issue concerning the alleged Fifth Amendment involuntary nature of defendant’s statements. | [
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Fellows, C. J.
On September 1, 1921, defendant was arrested for violating an ordinance of the city of Battle Creek. She pleaded guilty and was sentenced by the justice of the peace to pay a fine of $50 and costs, and to be confined in the county jail for a period of 30 days. The following day she appealed from the judgment of the justice to the circuit court of Calhoun county where she was permitted to withdraw her plea of guilty and enter one of not guilty. In the circuit court the proceedings were assailed on numerous grounds. A trial there resultéd in her conviction, and she brings the case here relying upon some, but not all, of the objections there urged. We shall consider those relied upon in their order.
The complaint contained the following language:
“That heretofore, to-wit, on the 1st day of September, A. D. 1921, at the city of Battle Creek, in the county aforesaid, and for three months preceding that day at the city of Battle Creek in said county, one Nettie Prine was a disorderly person, by keeping a house resorted to for the purpose of prostitution and lewdness.” * * *
It is first urged that this complaint did not give the justice jurisdiction in that it did not allege that the offense was committed in the city of Battle Creek, the specific point being that it ia not alleged that the house was located in Battle Creek. We think this is too narrow a construction of the language used. Adding to the words “keeping a house” the words “at the city of Battle Creek,” or preceding them with the words “then and there” was unnecessary. In the case of State v. Harris, 106 N. C. 682 (11 S. E. 377), it was held (we quote from the syllabus):
“When each count in an indictment alleges in the beginning that ‘on the 1st day of January, 1888, in said county of Granville,’ the defendant, etc., this applies to the whole count, and is a sufficient allegation that the crime charged in said count was committed in the county of Granville, and it is needless to repeat it at the beginning of each sentence or paragraph in the same count.”
In Joyce on Indictments, § 318, it is said:
“It has been said that if taking the indictment as a whole, a day is specified as to an issuable averment, the objection will not be fatal because the day is not repeated with every issuable fact; and that if time and place are stated in the beginning of a sentence and may be grammatically read as applying to facts subsequently averred they need not be again averred or referred to by the use of the words ‘then and there.’ So the omission of the words ‘then and there’ in a clause describing the uses of a tenement which it is charged is maintained as a nuisance has been held to be of no importance.”
There is no merit in this objection.
The city of Battle Creek has an ordinance, approved August 21, 1883, entitled:
“An ordinance to suppress and prevent houses of ill-fame and to punish the keepers and inmates thereof.”
It also has an ordinance, approved March 12, 1900, and later amended, entitled:
“An ordinance to prevent and suppress disorderly houses and assemblages and to punish disorderly persons.”
Section 1 of this ordinance is as follows:
“Be it ordained by the common council of the city of Battle Creek, that it shall not be lawful for any person knowingly to permit or suffer any house, building or place owned or occupied by him to be a resort of noisy, boisterous or disorderly persons, nor permit or suffer to remain therein any noisy, boisterous or disorderly person.”
Defendant was prosecuted under this ordinance. The proof showed beyond question that she kept a bawdy house at 15 Short street in the city of Battle Creek, that she kept prostitutes who there plied their trade. While not claiming that defendant could not be convicted under the ordinance of 1883, it is strenuously urged by counsel that she could not be convicted under the ordinance of 1900. This court has recognized the right of the prosecuting officers to use their discretion in determining under which of applicable statutes the prosecution shall be instituted. People v. Mire, 173 Mich. 357.
Under the terms of section 1 of the ordinance of 1900 the occupant of a house who knowingly permits “disorderly persons” to resort there, or permits or suffers “disorderly persons” to remain there violates its provisions. Prostitutes are disorderly persons. They are so defined by our statute. 2 Comp. Laws 1915, § 7774. The New York court in People v. Miller, 38 Hun (N. Y.), 82, tersely said:
“The keeper of a house of ill-fame is a disorderly person and his conduct tends to disturb the peace of the community where the brothel is located and it did not need legislation to declare him such.”
In Cheek v. Commonwealth, 79 Ky. 359, it was said:
“A disorderly house, in its restricted sense, is a house in which people abide, or to which they resort, disturbing the repose of the neighborhood; but in its more enlarged sense it includes bawdy-houses, common gaming-houses, and places of like character, to which people promiscuously resort for purposes injurious to the public morals, or health, or convenience, or safety. Nor is it essential that there be any disorder or disturbance in the sense that it disturbs the public peace or the quiet of the neighborhood. It is enough that the acts there done are contrary to law and subversive of public morals, and the result is the same whether the unlawful acts are denounced by the common law or by statute.”
In State v. McGregor, 41 N. H. 407, it was said:
“The nuisance consists in drawing together dissolute persons engaged in unlawful and injurious practices, thereby endangering the public peace and corrupting good morals. The gist of the offence is the keeping or managing such a house to the public detriment, and, under a general charge, particular instances may be proved. That notoriously reputed prostitutes and libertines were in the habit of frequenting the house during the time laid in the indictment, had a direct tendency to support the allegations of the indictment and establish the guilt of the defendant, if the house were managed or controlled by him at the time.”
See, also, State v. Williams, 30 N. J. Law, 102; Price v. State, 96 Ala. 1 (11 South. 128). The court did not err in holding that the prosecution could be maintained under the ordinance of 1900.
The defendant did not take the stand. The trial judge of his own motion gave the jury the following instruction:
“In this case the defendant has not taken the witness stand in her own behalf. In fact, it is obvious to you, gentlemen, that she is not even here in court. Her presence here in court is not necessary, it being a trial for an alleged misdemeanor, and so far as her not having taken the witness stand as a witness in her own behalf, that does not raise any presumption of guilt against her. It is a right any defendant may exercise under our Constitution and does not in any way raise a presumption of guilt. You should pass upon her guilt or innocence in the light of the testimony given here in open court and decide it under the rules of law as the court has stated them to you.”
The giving of this instruction sua sponte is assigned as error. This question is foreclosed in this jurisdiction. People v. Provost, 144 Mich. 17, followed in People v. Murphy, 145 Mich. 524. In the Provost Case the authorities from other jurisdictions were fully reviewed and the propriety of such instructions by the court of its own motion sustained.
The conviction will be affirmed.
Wiest, McDonald, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred. | [
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Bird, J.
Plaintiff recovered a judgment for $500 against defendant in the Wayne circuit court for having run his automobile into her as she was attempting to cross Lafayette street. Counsel contends that defendant should have had a. directed verdict because of plaintiffs failure to show his negligence, and upon the further ground that she herself was guilty of negligence. Under our view of the case it will be necessary to discuss only the latter contention.
The accident happened at or near the intersection of Griswold and Lafayette streets, in the city of Detroit. Griswold street extends north and south. Lafayette extends east and west, and its eastern terminus is Griswold street. Plaintiff, on the day in question, was proceeding north on the west side of Griswold street. When she reached the south curb of Lafayette, she claims she looked for approaching vehicles but saw none, and also observed that the semaphore was turned against east and west traffic. She started across, and when about 20 feet from the south curb she was struck by defendant’s automobile and thrown to the pavement and dragged for a short distance. As a result her clothing was badly torn and she. was bruised more or less, but not otherwise seriously injured.
Plaintiff was of the opinion that she was struck by the side of the automobile. Shet was confused at the time and her memory of just how the accident happened appeared to be somewhat hazy. A pedestrian by the name of Curtis, who was traveling in the same direction, and was at her left, gives a very clear account as to what happened. He says he was traveling north on Griswold street and when he reached Lafayette street he was at her left; that he saw the car and waited for it to pass and saw it strike her. That she was struck by that part of the car where the fender joins the running board. That when the collision took place she was thrown to the pavement. That he went to her' aid and assisted her in getting up and helped to arrange for sending her home. No one else appears to have seen just what happened except the defendant.
It is exceedingly difficult to read the record evidence of this accident and avoid the conclusion that plaintiff was unmindful of her surroundings and ran into the automobile. It is obvious that the car occupied that part of the street immediately in front of her before she did, and had she been making the use of her eyes that most people do. when traveling in a busy section of the city, she would have seen the car in season to have stopped before it struck her. Had she been struck by the front of the machine there would be room for her to contend that she occupied the street first but could not avoid the on-coming car, but when she was struck by the side of the car no such contention can reasonably be made. There is some conflict in the testimony as to whether the semaphore was turned against the east and west traffic, but if we concede that it was, that fact did not wholly relieve plaintiff of exercising ordinary care and using her eyes in the ordinary way to protect herself from collisions. We are of the opinion that the evidence, as it appears in the record, was such that the trial court should have directed a verdict for the defendant on the ground that plaintiff herself was guilty of negligence, as a matter of law.
The judgment is reversed and a new trial granted. Defendant will recover his costs.
Fellows, C. J., and Wiest, McDonald, Sharpe, and Steere, JJ., concurred.
duty of pedestrian to look out for automobiles, see notes in 3 L. R. A. (N. S.) 345; 20 L. R. A. (N. S.) 232; 38 L. R. A. (N. S.) 488; 42 L. R. A. (N. S.) 1179.
On duty of pedestrian before crossing street to look for vehicles approaching on intersecting street, see note in 9 A. L. R. 1248. | [
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Moore, J.
The defendant was convicted of selling moonshine whisky on the fourth day of July, 1921. The case is here on exceptions before sentence.
The assignments of error are discussed by counsel under four heads:
(1) Errors of the court in limiting attorney for the defendant in his questions to Clyde Hutchinson.
(2) Errors in permitting the prosecuting attorney to pursue, over objection of counsel for defendant, a course of successive leading questions in his examination of witnesses for the people.
(3) Error of the court in permitting Noble McKinley, a witness for the people, to testify as to results of an examination made of defendant’s home and adjacent premises, over objection of defendant’s counsel, on Saturday, following Monday, July 4th, the time at which the alleged offense occurred.
(4) That the verdict of the jury was against the great and overwhelming weight of the evidence in this cause.
We will discuss the errors in the order in which counsel presents them:
Did the court err in limiting the cross-examination? Counsel was allowed great latitude in the cross-examination of Mr. Hutchinson. Nearly six pages of the printed record are filled with this cross-examination. Counsel took no exception to the ruling of the court. We do not think any abuse of discretion or harmful error in this regard is shown.
Did the court err in permitting leading questions? Counsel does not call attention to any particular question, but contents himself with saying in the brief:
“A brief survey of the record shows the type of questions put to these witnesses.”
This is too vague to require this court to discuss the question.
Did the court err in not limiting rebuttal proof? An examination of the record shows that the testimony about which complaint is made was limited to the period of time, and to the situation about which his counsel had examined the defendant in great detail. There was no error under this head.
Was the verdict against the great weight of the evidence? We quote some of the testimony:
“Witness (continuing): Pie had a car there and I went to the car and got the liquor. It was wrapped up in paper. It was in the can that I let him have in the morning or one that I thought looked like it. I paid him $4 for it. I drank the liquor and it was intoxicating. I got intoxicated. Mr. Horton drank some of it.”
Mr. Horton testified substantially the same. There was other testimony along that line. It is true defendant and his witnesses denied that he made any sale, but this made a question for the jury. There was no motion for a new trial. We discover no reversible error.
The verdict is affirmed.
Fellows, C. J., and Wiest, Clark, Bird, Sharpe, and Steere, JJ., concurred.
The late Justice Stone took no part in this decision. | [
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Sharpe, J.
On September 3, 1919, the defendant Schubiner entered into an agreement with the Auto Collapsible Rim Manufacturing Company, of Illinois, whereby he acquired the sole and exclusive right to “make, use and vend and control” a certain invention for converting rims for automobiles into collapsible ones (for which letters patent had been theretofore secured) in the States of Michigan, Ohio and New York. On November 20, 1919, Schubiner entered into a contract with Howard Hatch, Robert A. Keele and George Zangelin, whereby he leased to them certain machinery theretofore installed by him for a period of 6 months at a rental of $300, with an option to purchase same for the sum of $2,500. In addition to the rental provided for the lessees agreed to pay the lessor 10 cents as a royalty on each rim converted by them. In the event of the purchase of such machinery, the rights of the lessees to convert rims under the patent was to be exclusive within the county of Wayne. The attention of the plaintiff was called to the business conducted by these lessees by reading an advertisement in a newspaper. After several conferences he, on January 13, 1920, purchased the interest of Zangelin in the lease, paying therefor $500. Soon after plaintiff purchased another third interest from Howard Hatch, paying therefor an additional $500. Before doing so, he called on the defendant Schubiner. He claims Mr. Schubiner told him he owned the patent and that if he purchased it would be all right to strike off the names of Zangelin and Hatch in the lease and insert his, and this was done. Soon after, the defendant Manning called on plaintiff at the shop and, as claimed by plaintiff, represented to him that he had purchased the patent from Schubiner and wanted to purchase plaintiff’s rights in the lease. Plaintiff claims that he again called on Mr. Schubiner, who told him “if I had any more dealings to do I would have to do them with Manning as he was disinterested;” that after some negotiations with Manning he turned over to him his rights under the lease and secured therefor a subscription contract for 10 shares (non-assessable) of the capital stock in a company to be organized by Manning to carry on the business. A meeting of the subscribers to this stock was held in March, and plaintiff claims he then learned that Manning was not the owner of the patent; that he again saw Schubiner, who also so stated to him. Manning had been to see Schubiner, and on January 29, 1920, had secured from him an agreement to sell to him his interest in the patent and the machinery, but this agreement was not carried out by Manning.
The claim, as set forth in plaintiffs declaration, is, first, that he was induced to make the purchase of the second one-third interest in reliance upon the false and fraudulent representations of the defendant Schubiner, and, second, that Schubiner and Manning fraudulently conspired together to secure the transfer by him of his interest in the lease to Manning. Before the trial in the circuit, plaintiff executed a release to Manning in consideration of the payment of $400.
The motion of defendant Schubiner for a directed verdict was reserved under the Empson act (3 Comp. Laws 1915, § 14568). The plaintiff had verdict for $600. Afterwards, defendant’s motion for judgment non obstante veredicto was granted and a judgment entered for him. In granting such motion, the’trial court filed an opinion in which the claims of the plaintiff as set forth in his declaration and the testimony tending to support such claims are reviewed at length. With the conclusion reached by him we agree. The record discloses no actionable misrepresentation to plaintiff by the defendant Schubiner. No matter whether or not Schubiner owned the patent, he had the right to grant the privilege secured to the lessees in the lease. Plaintiff’s rights thereunder were in no way interfered with until he disposed of them to Manning. As found by the trial court, there is no sufficient evidence to support the charge of conspiracy. Schubiner was doubtless anxious that Manning should succeed in the organization of a company which would enable him to carry out his agreement to purchase. But plaintiff’s proofs fall far short of showing a design or intent on Schubiner’s part to join with Man ning in a fraudulent effort to deprive plaintiff of his property without compensation.
The judgment is affirmed.
Fellows, C. J., and Wiest, Clark, Bird, Moore, and Steere, JJ., concurred.
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Moore, J.
The learned trial judge stated the questions involved in this litigation so clearly that we quote from his opinion, as follows:
“This is a bill to quiet title. The land involved is situated in Delta county, is described as the east half of the southeast quarter of section 2, in township 43 north of range 19 west, and is said to be worth about $200. _ As originally filed the bill claimed title in the plaintiff under a tax deed issued by the auditor general, upon a sale of the land for taxes in 1895, pursuant to a decree of this court, but by amendment of the bill the government title is also claimed.
“The tax title is void. Upon the filing of the auditor general’s petition the usual order of hearing was made and entered. The day appointed for the hearing was October 22, 1895, which was the first day of the term. The matter of the petition was heard and the decree was made and entered that day. The court remained in session on the 23d, 24th, 25th, and 26th days of October, when it adjourned sine die. It was in session but four days after the day appointed for the hearing and for that reason the decree was void as were all sales made under it. Peninsular Savings Bank v. Ward, 118 Mich. 87; McGinley v. Mining Co., 121 Mich. 88.
. “The tax deed was duly recorded and the' taxes levied on the property for the year 1895 and all subsequent years down to the present, were paid by the plaintiff or by its predecessors in the tax-title chain, and the further position of plaintiff’s counsel is, that the record of the tax deed and the payment of the taxes entitled it to invoke both the five-year (1 Comp. Laws 1915, § 4070) and the ten-year (3 Comp. Laws 1915, § 12311, subd. 2), statutes of limitation. Neither the plaintiff or any grantor in the tax title chain, entered into actual possession under the tax deed or otherwise. It is conceded the property has been vacant and unoccupied since 1899. The benefit of the five-year statute of limitations is by its terms limited to those who enter under a tax deed and remain in 'accual and undisputed possession’ for the five-year period. Actual entry is also necessary to set in motion the ten-year statute and to create a bar under that statute an actual, continued, visible, notorious, distinct and hostile possession under the tax deed for ten years, must be shown. Yelverton v. Steele, 40 Mich. 538; Sparrow v. Hovey, 44 Mich. 63.
“At the sale of 1895 the property was bid to the State. The State bid was sold and the land deeded by the auditor general in the chain of titles to the plaintiff on October 11, 1897, which was after Act No. 229, Pub. Acts 1897, providing for service by the tax purchaser of notice to redeem, took effect. The service of a notice to redeem was not shown and is not claimed. If there had been actual entry under the tax deed followed by adverse possession for five years or ten years, the rights of the owner of the government title would not be cut off by either the five or ten year statute of limitations in the absence of a notice to redeem. Cook Land, etc., Co. v. McDonald, 155 Mich. 175; Holmes v. Soule, 180 Mich. 526. That there was any entry or occupancy sufficient to set in motion the fifteen-year statute of limitation is not asserted by the plaintiff.
“The controversy regarding the ownership of the government title arises in this way. The land was patented to the defendant Card under the homestead laws of the United States. The patent was issued March 2, 1892, and was recorded on May 12th of that year. About six years before he obtained his patent, and on April 13,1886, Card deeded with full covenants of warranty, to one Edwin R. Burrows, now dead. He was the husband of the defendant, Clarinda C., and the father of the defendants, Enola R. and Ferry P. Burrows, who now claim the title under the Card deed to the husband and father. The Burrows deed was recorded in Delta county on May 26, 1886. On the day the patent to Card was recorded (May 12,- 1892), he mortgaged the property to one Gamble. Under foreclosure of the mortgage, the regularity of which is unquestioned. the property was deeded to Gamble who later deeded in the chain of title to the plaintiff. It appears that Card was living on an adjoining 80-acre tract and inferentially claiming the land in question as included in his homestead entry, in August, 1887. But that he made his homestead entry, or that he was in actual occupancy, as a trespasser or otherwise, of the land in question, or even of the adjoining 80, in April, 1886. when he deeded to Burrows, does not appear. When Gamble loaned his money and took his mortgage Card was in actual possession. Gamble did not have actual notice of the deed to Burrows and did not have notice or knowledge of any fact or circumstances calculated to awaken in him, or in any person of ordinary prudence, a suspicion that Burrows had or claimed any right, title or interest in the land through or under Card or otherwise. And so the question is presented whether, because of the record thereof, a subsequent purchaser is chargeable with constructive notice of a warranty deed executed by his grantor when he was not in possession and at a time when he had no right, title or interest whatsoever, legal or equitable, in the land so deeded.
“That the record of a deed or mortgage by the holder of an equitable title in possession, is constructive notice to a subsequent purchaser from the common grantor, is the Michigan rule. Edwards v. McKernan, 55 Mich. 520; Balen v. Mercier, 75 Mich. 42. But the question arising under the facts of this case was not involved in those cases and seems not to have been decided in this State.
“While the opposite is held by important courts (Ford v. Unity Church, 23 L. R. A. 561, and cases in note [120 Mo. 498, 25 S. W. 394]), it is thought reasonable and more in accord with the common understanding of the effect of our recording laws, to hold subsequent purchasers to constructive notice of all recorded instruments affectino- the title to the lands purchased which were executed by the common grantor before the acquisition of the legal title, whether, when he executed the prior conveyance or incumbrance, he was possessed of an equitable title or not, or was in actual occuoancy or not. Bernardy v. Mortgage Co., 17 S. D. 637 (98 N. W. 166, 106 Am. St. Rep. 791); Warburton v. Mattox, Morris (Iowa), 367. Whether there is on record a deed or mortgage executed by the common grantor is information oasily obtained by a subsequent purchaser. It is needful only that he in spect the index book which the register of deeds is required by law to keep and does keep. To require a subsequent purchaser to do what every prudent purchaser does is no hardship. The prior purchaser or mortgagee who, notwithstanding his grantor or mortgagor is not in possession and has no title of record, may be, as he commonly is, a good faith purchaser for a valuable consideration, has done all that he can do for hisi own protection and for the protection of subsequent purchasers, when he places his instrument on record and it is neither unjust or unreasonable to insist that, for his own protection the subsequent purchaser be at the very mild trouble, inconvenience or expense attending an inspection of the index book in the office of the register of deeds.
“The deed from Card to Burrows was also signed by Mrs. Card but it was not acknowledged by her and there was but one witness to her signature. _ The deed was duly acknowledged by Card and to his signature there were two witnesses. The point is made that because the execution by Mrs. Card was not properly witnessed and acknowledged, the deed was not entitled to record and therefore did not operate as constructive notice. That an instrument not executed so as to entitle it to record is not constructive notice to anyone is elementary.. But where an instrument is executed by two or more persons but by one only in the manner and form required by the recording laws, it is constructive notice of the conveyance by the person who properly executed it but not of a conveyance by the other or others. Hall v. Redson, 10 Mich. 21; Rayner v. Lee, 20 Mich. 384. The record of the deed to Burrows was constructive notice of the conveyance by Card and what he had conveyed to Burrows was what he attempted to mortgage to Gamble. The mortgage which describes Card as a widower was executed by'him alone.
“In the event a decree quieting title in the plaintiff is refused, a decree is asked requiring the defendants to repay the plaintiff the amounts paid for the State bid and for taxes, aggregating about sixty dollars. While it is proper in certain cases, where the owner of the government title applies to a court of equity for the relief of his title from the cloud of a void tax deed to require, as a condition of the granting of such relief, the repayment of taxes, the jurisdiction of equity to decree such repayment against a defendant who is not before the court seeking any form of affirmative relief, is not apparent.
“The bill will be dismissed but without prejudice to any remedy the plaintiff may have at law, for the recovery of the taxes paid. The defendants will recover their costs to be taxed.”
The first claim of appellant requiring our attention is that the tax sale of 1895 is valid. Counsel concedes that the following cases seem to support the opinion of the circuit judge: Peninsular Savings Bank v. Ward, 118 Mich. 87; Youngs v. Clark, 120 Mich. 528; Wait v. McMillan, 121 Mich. 95; Aztec Copper Co. v. Auditor General, 128 Mich. 615; Platz v. Englehardt, 138 Mich. 485.
We now quote from the brief:
“It is plaintiff’s contention that the decision in the ease of Peninsular Savings Bunk v. Ward, which the other decisions follow without any discussion or consideration of the questions involved, was brought about by misapprehension on the part of counsel and the leading of the court, because of this misapprehension, into an erroneous conclusion as to the language and interpretation of the statute in question. The Ward Case was decided upon the assumption that the statute requires the court to be in session for at least six days. * * *
“We here attack that decision and the cases following it not because the decision was not correct upon the premise upon which it was based but because that premise was a false one imposed upon the court by the erroneous assumption of counsel as to the construction of the statute, and our contention, is that the statute is not susceptible properly and particularly in view of later decisions of the court, of the accepted construction in that case and the one contended for in this.”
Counsel cites Wolverine Land Co. v. Davis, 141 Mich. 187; Goodell v. Auditor General, 143 Mich. 240 (114 Am. St. Rep. 646), and quotes at length from the last named case. A reference to these cases will show that they are in harmony with Peninsular Savings Bank v. Ward, supra, and with the contention of the chancellor in the instant case in his construction of the statute.
Another claim of counsel requiring our consideration is stated by counsel as follows:
“We rely in this case on the five-year statute (1 Comp. Laws 1897, § 3896 [1 Comp. Laws 1915, § 4070]), and the ten-year statute of limitations (Act No. 314, Pub. Acts 1915, chap. 9, § 1 [3 Comp. Laws 1915, § 12311, subd. 2]). Plaintiff contends under the decisions reference to which will be made shortly, that the record of the auditor general’s deed to McIver and Bosworth was a disseizin of the claimants under the government title and that the payment of taxes by the purchasers of a tax title continued for more than ten years, was a sufficient possession. The decisions on this point are: Rayner v. Lee, 20 Mich. 387, in which it was held that the payment of taxes by plaintiff or by someone in his chain of title is very significant of plaintiff’s adverse possession, and Murray v. Hudson, 65 Mich. 670, holding that the recording of the tax deed is disseizin and paying taxes shows adverse possession.”
Rayner v. Lee was decided in 1870 and the opinion states that in every year since 1842 some one under whom complainant claimed had assumed to be owner and had exercised public and notorious acts of ownership.
The case of Murray v. Hudson, supra, was an action of trespass tried before a jury which answered a special question reading as follows:
“Had Bryce and the Hudsons before the alleged trespass, open, visible, continuous, notorious possession of the land in question for ten years and upwards?
“A. Yes.”
The court held in that case that the jury were properly instructed upon the subject of adverse possession and that there was evidence upon which to base their findings.
In the case before us; the bill of complaint avers:
“Your orator further shows unto the court that said lands are vacant and unoccupied as your orator is informed, and have been so vacant since the year 1892; that no buildings or fences or other improvements have ever been made on said premises. * * * Your orator further shows unto the court that said premises are vacant, unoccupied timber land, and that the only possession taken or claimed by any person' for 25 years and upwards has been an occasional visit to said lands by the predecessors in title of your orator.”
We think the chancellor was right in his ruling upon the subject of adverse possession. The other contentions of counsel for the appellant have had our careful consideration, but will not be discussed.
The decree is affirmed with costs in favor of the appellees.
Fellows, C. J., and Wiest, Clark, Bird, Sharpe, and Steere, JJ., concurred.
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Steere, J.
Plaintiff’s husband, Leo J. Quinn, was killed by a passing taxicab as he was leaving a street car on which he had ridden to a regular stop- at the corner of Lake and Addison streets near his home in the city of Muskegon. He held a life insurance policy issued by defendant for $4,000 with plaintiff as beneficiary, which contained a so-called double indemnity clause, providing for payment of double the face of the policy ($8,000) if death of the insured “was caused directly by accident while traveling as a passenger on a street car” or other named public conveyance operated as a common carrier. Defendant paid the straight life insurance of $4,000 on proof of death, but denied double liability under the accident clause in the policy on the ground that deceased had reached the end of his ride, left the street car and started for the curb when struck by the taxicab, and the relation of a passenger and carrier had ceased at the time of the accident. The case was tried by jury on that issue. At the close of plaintiff’s testimony a motion for a directed verdict in defendant’s favor was made and denied. After defendant had introduced its testimony and both parties rested the motion for a directed verdict in defendant’s favor was renewed and argued, after which the court adjourned for the day. On the following morning, May 26, 1921, defendant’s motion for a directed verdict- was denied and the court directed the jury to render a verdict in plaintiff’s favor for $4,177.80. Verdict was taken without the jurors leaving their seats. Judgment for that amount was rendered thereon by the court and duly recorded. The next day defendant moved for a new trial on various grounds. The motion was argued and submitted. On July 19, 1921, the court filed an opinion denying said motion for a new trial, but concluding that an error had been committed in directing a verdict for plaintiff and entering judgment thereon. In his opinion the judge made reference to section 14568, 3 Comp. Laws 1915, called the Empson act, saying in conclusion:
“Inasmuch as that section provided that a motion for judgment notwithstanding the verdict can only be entertained before judgment, the motion for a new trial will be denied, the judgment heretofore rendered upon the verdict will be set aside, in order that defendant will have the opportunity to make a motion under' section 14568, above cited, for a judgment notwithstanding the verdict rendered, if it desires to do so.”
Defendant thereafter made a motion for judgment non obstante and after hearing argument the court set aside its former judgment on a directed verdict in favor of plaintiff, and rendered a judgment for defendant of no cause of action non obstante veredicto.
Counsel for plaintiff contends that the only action the court could have taken as the record then stood was to grant or deny defendant’s motion for a new trial, and the course pursued was prejudicial error. The statute/ under which the court assumed to act (§ 14568), provides that:
“* * * If either party shall at the close of the testimony, and before the case is submitted to the jury, request the court for a directed verdict in his favor, the court may reserve decision thereon, and submit the case to the jury under proper instructions as to the law applicable to such case. After the case is thus submitted to the jury, or after receiving and recording the verdict of the jury and before judgment is entered in said case, the court may hear arguments of counsel for and against said request, but in all such cases shall, receive and record the verdict of the jury as rendered.. If the court shall then decide as a matter of law,, that the party requesting the directed verdict was. entitled thereto, and if the verdict of the jury is adverse-, to the party making such request, the court shall enter its decision on the record and order judgment in-, accordance with such decision notwithstanding the; verdict entered, and the party against whom such, judgment is entered shall have an exception,” etc.
So far as the record discloses no mention was made ofl the Empson act by court or counsel at the time of the trial nor until nearly two months after the trial had ended in a final judgment on directed verdict for plaintiff. When the trial was in progress and defendant requested a directed verdict in its favor at close of the testimony, the court did not reserve decision thereon nor submit the case to the jury for their verdict under instructions as to the law which should guide them in their deliberations and take their verdict upon the claimed issues of fact as to which testimony had been introduced, but unconditionally and without any suggestion of reserved decision from any source denied defendant’s motion, directed an apparently unrequested verdict for plaintiff and entered judgment accordingly. As the record then stood with final judgment against defendant, its only rights thereafter were an appeal to this court for review by writ of error or motion in that court for a new trial, which it timely made. No right to move for a verdict non obstante was reserved to or claimed by it, nor had anything in the nature of consent by counsel or intimation by the court during the trial given ground for so claiming.
Both sides introduced testimony as to the circumstances of the accident, directed to the question of whether deceased was when struck by the taxicab yet a passenger on the street car. Plaintiff claimed there was testimony showing he was killed while in the act of alighting, while defendant contended that he had "then safely left the car and as a foot traveler on the 'highway was walking or running towards the curb. 'There was evidence to that effect and, in any aspect <of the case, plaintiff was not entitled to a directed verdict. The trial court rightly so concluded after hearing defendant’s motion to set aside the directed verdict and judgment thereon, and grant a new trial.
The motion should have been granted. The general rule is that: “When a verdict is directed, the judgment entered thereon is final; when one is set aside, a new trial is granted.” Randolph v. Railway, 213 Mich. 100. The Empson act does not contemplate a directed verdict in the first instance. Its manifest intent and purpose is a reserved verdict of the jury on the claimed issues of fact as the case stands at the close of the testimony, available for judgment thereon in case the court being in doubt as to the propriety of the motion for a directed verdict desires to reserve judgment and take further time for consideration of the evidence and legal questions involved, being by the act given authority to render judgment on said verdict, if the court later determines after hearing counsel that there was an issue of fact to go to the jury, or to ignore it if the case only involves issues of law and render judgment accordingly.
The judgment is therefore reversed and a new trial granted, with costs to plaintiff.
Fellows, C. J., and Wiest, McDonald, Clark, Bird, Sharpe, and Moore, JJ., concurred. | [
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Clark, J.
The information charged defendant with larceny of an automobile and in a second count that he received it knowing it to be stolen. During the trial the first count was abandoned. Defendant was convicted. During three months in the spring of 1920 defendant conducted a garage in Birmingham and was a dealer in used cars. The complaining witness, Rosseau, owned a car which was stolen from him in Detroit on May 2d of that year. About a month later he saw the car on a street in Detroit. Kroschinsky claimed to be the owner, having purchased it from the defendant May 28th. Kroschinsky returned the car to Rosseau and went to Birmingham to see defendant. The garage had been sold. Defendant was en route to Italy. A warrant was issued. His arrest in New York followed.
Kroschinsky testified that when he purchased the car he asked defendant as to the license plates and was told that there were none and that the car was a demonstrating, car which he himself had been using. Plumstead was defendant’s bookkeeper at the garage and testified that the books showed nothing as to purchase and payment of this car. This, he said, was true of other cars sold by defendant. He further testified of his unsuccessful efforts to get from defendant information for the purpose of proper bookkeeping as to purchase and cost of these cars. Over defendant’s objection evidence was admitted showing the sale by him of three other stolen cars. On May 5th he sold to McKinley a car which had been stolen on March 29th. On May 17th he sold to Mason a car which had been stolen in Detroit. On May 24th he sold to Peabody a ear which had been stolen April 27th. Warner, defendant’s salesman, testified that defendant told him that the McKinley car had been bought from a lady who lived near Monroe. Defendant told Peabody that the car sold to him had been purchased in Toledo, nearly a new car, bought as a service car. He told Mason that-the former owner of the car sold to him had disposed of it because he had purchased a new sedan.
Cobb was cashier of the bank in Birmingham with which defendant had an account. When defendant was arrested in New York he gave a friend written instructions from which we quote:
“Tell Bill Warner and Chuck Plumstead not to disclose the amount of cars sold or to whom they were sold.
“Tell Cobb not to disclose any of cars sold on time so there would not be any more delay.”
Defendant claimed to have purchased the car in question from Michals whom he had known and from whom he claimed to have bought other cars; that the car was purchased at the garage of the Modem Sales Company in Detroit; that he received from Michals the claim cheék for the car which he surrendéred to the said.company and received the car. The claim check when surrendered was stamped “Paid.” It was produced by defendant. The people had. testimony that the number and náme of the car had been written on the claim check over the stamp and that erasures had been made. Defendant’s counsel, during, the cross-examination of Plumstead, to show "defendant’s dealing with Michals, produced a check by defendant, afterwards offered in evidence by the prosecution and received, dated April 15th, 1920, payable to Michals for $600,. indorsed by Michals. Another later indorsement had been erased. The check after having been paid was returned by the bank to the defendant. An officer of the bank called by the people in rebuttal testified that when the check was paid it bore the indorsement of Michals- and also of one Castillon. The prosecution offered testimony tending to connect Castillon with the theft of certain automobiles but the offer was refused.
Halliday, the owner of the car sold by defendant to Peabody, was permitted to testify that on the day his car was stolen it was parked on a street in Detroit, that when he left his car defendant and others were seated in an adjacent car and upon his return both cars were gone. This testimony was later stricken out and the jury was instructed to. disregard it.
Defendant insists that the testimony as to the sale of cars other; than the one in question was .inadmissible. Evidence of another independent crime could not be admitted to establish the guilt of defendant of thei crime charged. But the evidence was adduced under an exception to this general rule to show that the having by defendant of the car in question was not mistake, an innocent business transaction, but a part of a scheme or plan of having and dealing in stolen cars, and to show guilty knowledge. The jury was instructed o'f the' purpose, of receiving this testimony and it was not error under the circumstances to receive it. In a recent case where this; exception was fully . considered and. the authorities reviewed, People v. Rice, 206 Mich. 644, it is said:
“The underlying reason for the exception lies in the fact that a man may be honestly mistaken, have no fraudulent intent if the transaction stands alone, is single; but that the probabilities of an honest mistake diminish as the number of similar transactions indicating a scheme or system increases. Thus a man may honestly offer a counterfeit bill, and the one transaction standing alone has little force in proving guilty knowledge, in proving intent to defraud. But if he successively offers 5 or 25 counter feit bills, as such offers increase in number the probabilities of an honest mistake diminish, and the probabilities of guilty knowledge, of intent to cheat, increase. As was said by Lord. Coleridge in Reg. v. Francis, 12 Cox Cr. Cas. 612:
“ ‘It seems clear upon principle that, when the fact of the prisoner having done the thing charged is proved, and the only remaining question is whether, at the time he did it, he had guilty knowledge of the quality of his act, or acted under a mistake, evidence of the class received must be admissible. It tends to show that he has been pursuing a course of similar acts, and thereby it raises a presumption that he was not acting under a mistake. ' It is not conclusive; for a man may be many times under a similar mistake or may be many times the dupe of another. But it is less likely he should be so oftener than- once, and every circumstance which shows that he was not under a mistake on any one of these occasions strengthens the presumption that he was not on the last.’ ”
Receiving the check for $600 in evidence is said to be error. It was produced and used by defendant in the cross-examination of the witness Plumstead. Defendant claimed to have bought the car in question from the payee of the check. . It was not. shown to have been in payment of the car in question. But for the erasure of the name of the last indorser the check had little significance in the case. Michals was not found. Defendant denied knowledge of the erasure which must have occurred after the check had passed through the bank. Under the evidence as to dealing in cars between defendant and Michals and because of the question of the guilty knowledge of the defendant, it was not error to receive the check in evidence. Nor do we think it was error to receive from the prosecution rebuttal testimony respecting the erasure.
Receiving the testimony of the witness Halliday, above mentioned, was unfortunate and we.think the testimony was incompetent for any purpose. The trial judge very carefully instructed the jury to disregard it. The defendant insists that the error could not be cured by such instruction.. But we have read the record with care. ' We have heard the earnest arguments of counsel. The case is well briefed. We think the verdict just and that the conviction was not a miscarriage of justice. Entertaining this view, under the statute (3 Comp. Laws 1915, § 14565; and People v. Smolkiewicz, 206 Mich. 1; People v. Mandell, 209 Mich. 154), the conviction will not be set aside because of the admission of such testimofly.
We find no reversible error.
Affirmed.
Steere, C. J., and Moore, Wiest, Fellows, Stone, Bird, and Sharpe, JJ., concurred. | [
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Sharpe, J.
Emmaus G. Owen, a, farmer who had lived for many years near Grand Blanc, in Genesee county, died on August 28, 1882. He left a last will and testament, made on April 23, 1878, the material portions of which read as follows:
“And first, I do give, devise and bequeath unto my beloved wife, Cynthia M. Owen,- the use of one-third of all the real and_ personal estate of which I shall die possessed and seized (after the payment of all my just debts and funeral expenses) to have and to hold the same for the term of her natural life, and after her to revert to Charles C. Owen, my son, and it is hereby declared to be my will that my daughter, Mary E. Hebbard, have one thousand dollars, as follows, to wit: two hundred dollars to be paid her at one year after my decease and two hundred dollars annually thereafter (without interest) until it is paid.
“I give and bequeath to the children of Martha E. Hadley (my daughter deceased) as follows, to wit: Arthur O., Bertha and Edward Hadley one dollar each to be paid at my decease.
“And I hereby bequeath all the real and personal estate of which I may die possessed; except that hereinbefore mentioned, to my son, Charles C. Owen, and his heirs. If in case the said Charles C. Owen dies without issue, it is my will that the above property be disposed of as follows, to wit:
“I will to my daughter, Mary E. Hebbard, three thousand dollars, and my sister, Susan E. Henderson, two thousand dollars, and to my niece, Alice Henderson, one thousand dollars, and the residue, if any there be, to the Home Missionary Society, to be applied in helping the said society in the State of Michigan.”
Cynthia M., the wife, died prior to the death of the testator, as did also the sister, Susan E. Henderson. Mrs. Henderson left her surviving three daughters, Marion J. Henderson, Ida Henderson (two of the defendants herein), and Alice Henderson, who died in February, 1918, unmarried and intestate. Mary E. Hebbard died in May, 1909, testate. Under her will, whatever interest passed to her under her father’s will now belongs to the plaintiffs in this case. Charles C. Owen, the son, died March 3, 1916,, unmarried, intestate, and without issue. The bill in this case is filed to obtain a construction of the will. The questions presented are thus stated in the brief of counsel for appellant:.
1. Did the title to the one-third of the estate, the use of which was given by the testator to his wife for life, pass at her death to Charles C. Owen free from the gift over in the third paragraph of the will ?
2. Did the legacies to Mary E. Hebbard, Susan E. Henderson and Alice Henderson lapse by reason of their death before that of Charles C. Owen and thus pass to the residuary legatee?
3. Was the legacy to Susan E. Henderson saved to « her issue by the provision in section 13793, 3 Comp. Laws 1915?
The trial court held, first, that on the death of the testator an absolute estate in fee vested in Charles C. Owen to the one-third interest in the estate and now belongs to plaintiffs as his heirs at law; second, that the legacies to Mary E. Hebbard, Susan E. Henderson and Alice Henderson vested at the testator’s death, subject to be divested in case Charles should leave issue him surviving, and were subject to alienation or descent to the heirs of such legatees; and, third, that the legacy to Susan E. Henderson was saved by the statute and passed to the two individual defendants under her will. He further found that any residue passed to the defendant the Michigan Home Missionary Society. From the decree entered, the missionary society appealed.
The bequest to his wife was just what she would have taken had no will been made. The bequest to his daughter, Mrs. Hebbard, was payable in small annual amounts, the payment of which would not probably affect the corpus of the estate. It is apparent that he desired his son Charles to have his entire property, subject to the bequests to his wife and Mrs. Hebbard, as an estate in fee, should he marry and have children. The trial judge found that at the time the will was made, in 1878, the son Charles “was somewhat along in years, beyond the average time that men take to themselves a wife.” The testator deemed it necessary for him to consider the probability that Charles would die without issue and to provide for the disposition of the estate bequeathed to him in such event. The residuary clause is thus accounted for. We are impressed from these considerations that there was no intent on his part to make any bequest to Charles which he might convey or dispose of by will. There was no apparent reason why he should provide for him an estate in fee in a one-third interest and a life estate in the remaining two-thirds. Such a construction should not be given to the bequest to him, unless rendered imperative by the language employed. The purpose of the first paragraph was to provide for his wife. This he did by securing to her the use of one-third of his entire estate during her lifetime. What should become of this one-third interest after her decease? He desired it to go to Charles and provided that after her death it should “revert” to him. Stress is laid upon the use of this word “revert.” It is suggested that as used it simply means to “go to,” “pass to,” or “become the property of.” The usual legal definition is “to return to the proprietor after the termination of a particular estate granted by him.” Had his wife survived the testator, as he no doubt expected she would at the time the will was made, Charles, on the death of his father, would have taken the entire estate, at least for his lifetime, subject to the life interest of his mother in the one-third thereof, which would “revert” to him at her death. We feel that no violence is done in so construing this bequest and that on testator’s death the entire estate passed to Charles, subject to the remainder over in the event that he died without issue.
Charles having died without issue, the will provides for payment of three specific legacies and that the residue, if any, shall go to the missionary society. The first of these legacies was to Mary E. Hebbard. She died in 1909, before the death of Charles. It is the claim of the plaintiffs that this legacy vested on the death of the testator, subject to being divested on Charles’ leaving issue him surviving, and, having vested, it was descendible, devisable and alienable in the same manner as estates in possession, while the appellant claims that the legacy was contingent, did not vest during the lifetime of the legatee and therefore lapsed and became a part of the residuary estate.
We must first look to the will for guidance. The bequest is to the individual, with nothing to indicate an intention that on the death of the legatee before Charles the legacy should pass or be payable to her heirs, assigns or personal representatives. We must therefore apply the rules of construction applicable to such bequests. Much has been written on the subject of vested and contingent estates and interests. The difficulty is in applying the rule of determination, on which there is perhaps less disagreement than would be expected, to the particular language in the will. Mr. Rood in his work on Wills, § 581, says:
“An estate vests when and as soon as there is a person in being and ascertained who has an unconditional right to enjoyment upon the termination of the preceding estates which are all sure to terminate or on the happening of any event that is sure to occur; but till these requirements concur no estate can vest.”
See, also, 2 Redfield on Wills (3d Ed.), p. 217. This is but in effect the provision of our statute (3 Comp. Laws 1915, § 11531):
“Future estates are either vested or contingent:
“They are vested when there is a person in being who would have an immediate right to the possession of the lands, upon the ceasing of the intermediate or precedent estate;
“They are contingent whilst the person to whom, or the event upon which they are limited to take effect; remains uncertain.”
(The italics in both of these quotations are ours.)
Applying the rule thus stated, we feel constrained to hold that the legacy to Mrs. Hebbard did not vest during the lifetime of Charles, owing to the uncertainty as to whether he would die without issue. The bequest to her was only made “in case the said Charles C. Owen dies without issue,” and until that event occurred she had but a contingent interest whose existence was wholly dependent upon an uncertain event which did not occur during her lifetime. The death of Charles was not the time fixed for payment of the legacy to her, but his death without issue was the uncertain event on which her right to the enjoyment of the legacy depended. A legacy may vest though the enjoyment be postponed, but it can not vest until that upon which its right of enjoyment depends actually does occur. It is the uncertainty as to whether the time will ever arise at which she will be entitled to receive that prevents the vesting. Under the will, at the death of his mother Charles became possessed of the fee in all his father’s property, defeasible at his death without issue. But until his death, the entire estate was vested in him and. the interest of Mrs. Hebbard in the legacy bequeathed to her was but a contingent one which could, not vest until his. death and then only in the event that he died without issue.
We think the conclusion reached is well supported by oúr own authorities. In Fitzhugh v. Townsend, 59 Mich. 427, the will provided that the income of the. estate of the testatrix should be paid to her grand-daughter Elizabeth, and further:
“If, at her decease, she leaves -lawful issue surviving her, I devise and bequeath the whole of my said residuary estate to such issue.”
In the event of her death without issue certain other, bequests were made and the residue was to be—
“equally divided among all my brothers and sisters, and the children of such of them as shall be no longer living, so that the children of each of the deceased shall take the share, to be equally divided among them, if there be more than one, to which the deceased parent would have been entitled if living.”
The testatrix died in 1869 and Elizabeth in 1884 without issue. Samuel, a brother of testatrix, died before her, leaving a son, William, who died before Elizabeth. William left a will devising “his prospective and contingent share” and his executors made claim under it. The court held that—
“There was no vested estate until the death of the granddaughter. I No interest'passed to William Addison Fitzhugh by the terms df the will, except a contingent estate that perished with him, if he died before the granddaughter.”
It was there urged that under the statute (now 3 Comp. Laws 1915, § 11553) which provides that “Expectant estates are descendible, devisable and alienable, in the same manner as estates in possession,” William’s expectant interest or estate was properly disposed of by him by his will. In answer to this claim the court said:
“Granted; yet it is equally true that William Addison Fitzhugh could grant or devise no better or greater estate than he himself held; and any alienation or devise made by him would be defeated and destroyed 'by the same contingency which would have defeated !his interest had he not disposed of it.
“The only effect of the statute is this: It enabled William Addison Fitzhugh, by his. will or deed, to put another in his place, so that if the contingency arose by which William Addison would himself have taken had no transfer been made by him, then, in such case, the party standing in his place would take in his stead.
“The estate taken by William Addison Fitzhugh was a contingent one, liable to be defeated by the happening of either one of two events, to wit, the death of the granddaughter, Elizabeth Fitzhugh Birney, with issue surviving her, or his own death before the decease of the said granddaughter.”
,
In Mullreed v. Clark, 110 Mich. 229, the testator devised his real estate to his son James with the provision:
“If James Phillips should die without heirs, then my real and personal estate is to go to my two daughters Mary Phillips and Jane Phillips; but if Mary or Jane should die without heirs, then their share to go to the other sister.”
The court held:
“James therefore took the fee, defeasible at his death without issue living at that time. At his death the fee, by the terms of the will, was cast upon the sisters Mary and Jane. They having died without issue, ‘the other sister’ named in the will was Elizabeth Clark, who was the only sister of Mary and Jane living at the time the will was made, and she consequently took the fee.”
See, also, Markham v. Hufford, 123 Mich. 505, 510 (48 L. R. A. 580), wherein, in holding that a bequest had not vested, it was said:
“The provision cannot be distinguished in principle from any other bequest depending upon the happening of an uncertain event.”
We feel constrained to hold that on the death of Mrs. Hebbard the legacy, provided for her in the will, lapsed and became a part of the residuary estate. What has been said relative to the legacy to Mrs. Hebbard applies with equal force to that to Alice Henderson.
Susan E. Henderson died before the testator. Counsel for the defendants Marion J. Henderson and Ida Alban, her daughters, insist that, even if the above rule be applied, the legacy to her is saved to them by the provision in section 13793, 3 Comp. Laws 1915, then in force, which reads as follows:
“When a devise or legacy shall be made to any child or other relation of the testator, and the devisee or legatee shall die before the testator, leaving issue who shall survive the testator, such issue shall take the estate so given by the will, in the same manner as the devisee or legatee would have done, if he had survived the testator; unless a different disposition shall be made or directed by the will.”,
The language of this statute is plain and we think easily understood. Fairly interpreted, it provides that the issue of the deceased devisee or legatee shall stand in his or her place or stead and be entitled as though themselves named as • beneficiaries in the will itself. They are to take the estate, in this case legacy, in the same manner as Mrs. Henderson would have taken it had she survived the testator. On her death the statute reads into the will a legacy to her daughters'as though they had been specifically named therein. The legacy did not become a part of her estate, but her issue became direct beneficiaries. Strong v. Smith, 84 Mich. 567; Rivinett v. Bourquin, 58 Mich. 10; Mann v. Hyde, 71 Mich. 278. We have not overlooked the case of Eberts v. Eberts, 42 Mich. 404. No construction of this statute was there involved. As these children of Susan survived Charles, the legacy to their mother vested in them at his death and they are entitled thereto under the terms of the will.
The trial court found that the legacy of $1,000 to Mary E. Hebbard had been paid and so decreed. The decree also provides that the residue or remainder of the estate, after payment of the debts and legacies, passed to the appellant, the Michigan Home Missionary Society. No appeal was taken by the plaintiffs or the individual defendants. We are not at liberty to change or modify the decree in their favor. Kellogg v. Kellogg Corn Flake Co., 212 Mich. 95, and cases cited.
It follows from the conclusions reached that the son Charles took the entire estate for his lifetime upon the death of his father. That the legacies to Mrs. Hebbard and Alice Henderson lapsed. That the legacy to Susan E. Henderson is payable to her daughters, the defendants Marion J. Henderson and Ida Alban. That, subject to the payment of such legacy, the residue of the estate belongs to the Michigan Home Missionary .Society.
As thus modified, the decree will be affirmed. The costs on the trial below and on this appeal will be paid out of the estate of Emmaus G. Owen.
Steere, C. J., and Moore, Stone, Clark, and Bird, JJ., concurred with Sharpe, J.
The late Justice Brooke took no part in this decision. | [
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Bird, J.
This bill was filed to determine the title to a strip of land about 10 feet wide and about 120 feet long, which lies between lands owned by the parties-hereto in the city of Grand Rapids. After hearing the matter the chancellor decided that defendants h'ad the title thereto and dismissed plaintiffs’ bill. It appears that in the year 1898 Sluman S. Bailey was the owner of two lots, numbers 16 and 17 (Coit and Curtis Partition plat), situate on the northwest corner of Fulton street and North Union avenue in the city of Grand Rapids. The lots at that time were 152 feet long and each was about 60 feet wide. The long way of the lots was north and south along North Union avenue. In 1893, Mr. Bailey gave his niece, Helen R. Gardner, the privilege of erecting a house on the north end of these lots, facing North Union avenue. The next year he conveyed to her the north 28 feet from off and across these lots. Miss Gardner erected the dwelling and moved into it and occupied it until 1912 when these plaintiffs purchased it. Miss Gardner, however, sold the premises, in 1904 to her brother-in-law, Elmer E. Stephenson, and when he died in 1909 he left the premises to his wife, Ida Stephenson, who, in turn, conveyed them to plaintiffs. During the occupancy of the premises by Miss Gardner she used a strip 8 or 10-feet wide of her uncle’s land immediately adjoining her premises on the south for the purpose of cultivating flowers. Her house was constructed to within one. foot of her south line. The balance of her uncle’s lots, was unimproved and was open as commons.. Miss Gardner continued to cultivate flowers and vines on the strip' and drove 2x4 posts and strung cords and wires on them to sustain the flowering vines. Later she erected chicken fence along the strip to support the vines. It is the claim of plaintiffs that Miss Gardner erected a fence enclosing the disputed strip and occupied it as her own. When plaintiffs acquired the land they enclosed the strip with a substantial fence. It is the claim of plaintiffs that Miss Gardner’s occupancy of the strip, together with their occupancy, .gives them title thereto by adverse possession. The defendants, who are now the owners of the balance of lots 16 and 17, deny that plaintiffs have acquired any rights therein.
The chancellor appears to have been impressed that while plaintiffs, might have occupied and claimed title to the disputed strip; their predecessors in title, Helen Gardner and the Stephensons, never made any such claims. We think the proofs fully support this view. The testimony makes it reasonably clear to us that Miss Gardner’s lot was narrow. Her house set within one foot of her south line. She asked for and got her uncle’s permission to use the disputed strip south of the house upon which to cultivate flowers and vines. There was considerable testimony introduced by both parties as to the use she made of this strip and the character of the erections, thereon. Some of the witnesses thought the strip used by her ran the entire length of the lot. Others thought it extended only the length of the house. A few thought the. fence or erections were of a permanent nature, but most of them testified that they were temporary affairs. We think it appears to be established by the proofs that whatever the erections were they were placed there by Miss Gardner for the purpose of' assisting in the cultivation of her flowers. Stakes were driven and wires and cords were strung from stake to stake to support the flowers and vines. Later chicken wire or poultry fencing was used, and nearly all of the witnesses connect its use with the cultivation of flowers and not for the purpose of asserting any ownership to the strip so used. Several witnesses', among them some of the relatives of Miss Gardner, and also members of her household, testified that Miss Gardner told them she got permission from her uncle to use the strip in the cultivation of flowers. The testimony fails to show any claim of adverse possession or ownership either upon the part of Miss Gardner or the Stephensons, to whom she conveyed the title. Of course, if there was no such claim by them plaintiffs’ contention must fail as they had not occupied the premises for a period of 15 years.
But if we were to assume that Miss Gardner and her grantees occupied the strip claiming to own it, plaintiffs would still be prevented from claiming title in these proceedings. They purchased only 28 feet. They saw it before purchase. They did not purchase the title to the disputed strip. The defendants have the paper title. Unless plaintiffs’ grantors convey their right to the disputed strip plaintiffs could not tack their adverse possession to theirs, which they would have to do in order to establish their title by adverse possession. This question was before the court in Sheldon v. Railroad Co., 161 Mich. 503, and it was there said:
“It seems to us to be very clear that the complainant cannot rely upon his deed to show privity of estate, because the disputed premises are not mentioned in the deed. Where the grantee relies upon the deed to show privity of estate, he cannot have the benefit of the grantor’s possession of lands which are not mentioned in the deed. 1 Am. & Eng. Enc. Law (2d Ed.), p. 845, and cases cited in note 4. The general rule is that possession cannot be tacked to make out title by prescription where the deed under which the last occupant claims title «does not include the land in dispute. It must clearly appear in the deed that the particular terms were embraced in the deed, or transfer, in whatever form it may have been made. 1 Cyc. p. 1007, and note.”
This rule was applied in that case and later applied in Lake Shore, etc., R. Co. v. Sterling, 189 Mich. 366, and again in Wilhelm, v. Herron, 211 Mich. 339.
Another barrier in the way of plaintiffs’ acquisition of title by adverse possession suggests itself. The undisputed testimony is that Miss Gardner’s occupancy began in favor, that she occupied the disputed strip by consent of her uncle, and if this were so the statute of limitations would not begin to run in her behalf at least before she had notified her uncle, or his grantee, that she was claiming title adversely to him. Standard v. Jewell, 206 Mich. 61, and cases cited.
After examining this record with considerable care we are of the opinion that the conclusions arrived at by the chancellor are well taken, and should dispose of the case.
The decree is affirmed.
Steere, C. J., and Fellows, Stone, Clark, and Sharpe, JJ., concurred with Bird, J.
Moore, J., concurred in the result.
The late Justice Brooke took no part in this decision. | [
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Bird, J.
The prosecuting attorney of Lapeer county filed an information in the nature of a quo warranto, questioning the validity of defendants’ election as trustees of the school board for the township of Hadley, in Lapeer county. The interveners question the validity of their election on the ground that the township school district was not legally organized. The matters were tried out and the trial court held the organization of the township school district was illegal and a judgment of ouster followed.
In the latter days of May, 1920, a petition was presented to the township board of Hadley township by certain school electors praying for an election to determine whether the school electors of the township desired a township school district. The petition was acted upon favorably and an election was called and held on June 28, 1920. The votes cast'in favor of the proposition were 202. Those against 175. It is claimed by the interveners that the election was not legally called and that the election itself was illegal because certain resident school electors of the township of Hadley were prevented from voting.
The trial court took the view that the election called for the purpose of determining whether the unit system should prevail was illegal because no notice of the election was posted as the statute requires in the fractional school districts whose schoolhouses were situate outside of the boundaries of the township, and because school electors residing in such fractional dis tricts were excluded from voting. These questions depend, upon a construction of the statute which was passed for the organization of township school districts. The attorneys for the trustees insist it was not contemplated by the statute that school electors residing in fractional districts whose schoolhouses are located outside of the boundaries of the township should have the right to vote. This is based upon the following proviso of the law:
“Provided, That if in such township, or as a part of such township, there are fractional school districts already organized, the schoolhouse of which is within the boundaries of the township, such fractional districts shall be considered a part of the township for school purposes, and qualified school electors residing anywhere in such fractional school district shall be qualified to sign the petition for or vote upon the question of the organization of the township district.” 2 Comp. Laws 1915, § 5909.
It is argued from this proviso that in fractional districts where the schoolhouse is outside of the boundaries, school electors in the township of Hadley were not entitled to vote; that those electors will have an opportunity of voting when the township in which the other part of the district is situate votes on the same question. The point is made that if this is not the proper construction of the statute then those electors residing in the township of Hadley in a fractional district where the schoolhouse is outside of the boundaries will get two votes. They will have a right to vote in the township of Hadley and then again in the township in which the other part of the district is situate when it votes upon the same question. It is answered by the attorneys for the interveners that these electors would not get two votes on the same question, that they are voting upon different questions. It is argued by the interveners that if you hold the school electors in such districts to be excluded from voting they may be forced into a township school system without having any voice as to whether or no they will go, and they cite the following proviso:
“Provided further, That in any case where a fractional district has been organized^ heretofore, such territory may be divided so that the township school district boundary lines shall conform to the township boundary lines, such division being made in their discretion by the township boards of the township in which the territory may be located, said boards meeting in joint session for such purpose.” 2 Comp. Laws 1915, § 5910.
It is said that by virtue of this'-proviso after the election is passed and carried the township boards of the townships in which the fractional district is situate may get together and place the voters of the district living in Hadley township within the township school system and the voters have nothing to say about it. Opposing counsel say the legislature has the right to consolidate school districts without asking the voter and that it is not an inherent right of the voter to have a voice in the formation of the district.
The statute for the creation of township school districts is Act No. 117, Pub. Acts 1909. A slight amendment was added by Act No. 143, Pub. Acts 1911. The enacting clause provides in part that:
“Whenever a majority of the' qualified school electors in any organized township votes in favor of organizing such township into a single school district, such township shall, after the second Monday in July thereafter, be a single school district and shall be governed by the provisions of this act. * * * The question of changing any organized township info a single school district to be governed by the provisions of this act, shall not be submitted to the qualified school electors of said township until a petition therefor, signed by one-fourth of the qualified school electors of said township, requesting the submission of such proposition, shall be filed in- the office of the township clerk.” Act No. 148, Pub. Acts 1911, § 1 (2 Comp. Laws 1915, § 5909).
There is no express provision in the act prohibiting the school electors residing in fractional districts in which the schoolhouse is outside of the boundaries of the township from voting. That idea is born of inference from the affirmative language of the proviso making the school electors in fractional districts where the schoolhouse is situated within the township participants in the election.
The trial court was of the opinion that the proviso was inserted for the purpose of enlarging the class that could vote and not for the purpose of limiting the class that the enacting clause declares may vote. It is not at all clear just what the legislature meant by these provisions, but I am impressed that the trial court’s solution of the admixture is as reasonable a solution as can be suggested.
The enacting clause provides:
“Whenever a majority of the qualified school electors in any organized township votes in favor,” etc., and
“The question of changing any organized township into a single school district to be governed by the provisions of this act shall not be submitted to the qualified school electors of said township until a petition therefor, signed by one-fourth of the qualified school electors of said township, requesting the submission of such proposition, shall be filed in the office of the township clerk.”
It will be noticed that throughout the entire act it speaks of the school electors of the township and in no place does it restrict the right of any class residing within the township to vote. The idea back of the act is to change from the smaller to the larger unit — to the township unit. In view of this, Can the courts inject a prohibition into the act which would.deny to a large class of voters, residing in the township the right to vote at such an election? Counsel argue that the legislature has the right to change the boundaries of a district without the consent of those affected. This is quite likely true, but here is an act, the whole purpose of which is to give the voter — the person who will be affected — a voice in the proceedings. It would not only be at variance with the terms of the act but with the spirit of it to deny tliem that right. It is quite true, as counsel say, that one may, under the construction contended for by defendants, become a member of a district without having any voice in the matter. It is quite evident that_the legislature never intended any such result. Such a result is possible only because the law was very carelessly prepared. The question of construction is a very difficult one. Both constructions are open to criticism, but this does not authorize the court to legislate or to disfranchise voters in the township where there is nothing in the act to justify it. To give the act the construction contended for by defendants would compel, us to read into the act an amendment disfranchising a certain per cent, of the voters of nearly every towniship in the State. This we have no right to do whether the law is workable or not. For these reasons I am in favor of affirming the judgment of the trial court. It being a public question no costs will be allo'wed either party.
Steere, C. J., and Stone and Clark, JJ., concurred with Bird, J. Moore and Brooke, JJ., did not sit. | [
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Fellows, J.
Defendant Minnie McAuliff appeals from a decree granting the prayer of plaintiff’s bill to foreclose a lien for material furnished in the erection of a two-family flat on premises owned by her. De fendant Modern Construction Company was the contractor and was regularly defaulted. Defendant Wayne County & Home Savings Bank holds a mortgage on the premises and has not appealed. The affidavit filed in the office of the register of deeds and served on defendant, about which the legal questions are raised, is as follows:
“Statement of Account and Lien.
“State of Michigan, ) “County of Wayne, f ss.
“Gustav F. Scheurman, secretary of Acme Lumber Company, being duly sworn, says that he furnished certain materials, in and for the erection of a certain two-family dwelling, situated on the land hereinafter described, in pursuance of a certain contract with the Modern Construction Company, the contractors. That the furnishing of such material' was begun on the 14th day of September, A. D. 1911, and that the last of such material was furnished on the 5th day of October, A. D. 1917, and that there is justly and truly due to the Acme Lumber Company, therefor from the said Modern Construction Company over and above all legal set-offs, the sum of six hundred and thirty-nine and 04/100 dollars, for which amount Acme Lumber Company claims a lien on said land and building of which Minnie McAuliff is the owner of record, which premises are described as follows: Lot 132, McGregor subdivision of lots 3, 4, 5, 12 and part of lots 2, 6, 11 quarter section 54, 10,000 acre tract as recorded in liber 30, page 39, of plats, Wayne county records.
“Gustav F. Scheurman,
“Subscribed and sworn to before me, this 30th day of November, A. D. 1917.
“Fred T. Scheurman,
“Notary Public,
“Wayne Co., Michigan.
“My commission expires January 8, 1921.”
Counsel for plaintiff is correct in his contention that the statute makes sworn bills to enforce the lien evidence of the matters therein charged “unless denied by answer under oath” which was not done in the instant case, 3 Comp. Laws 1915, § 14805; Knowlton v. Gibbons, 210 Mich. 547. But to the sworn bill filed in this case plaintiff’s counsel attached and made a part thereof a copy of the above affidavit. Under these circumstances with a copy of the affidavit set out and made a part of the bill, it was in evidence and the fact that defendant’s answer was not sworn to does not preclude her from questioning the validity of the sworn statement which was in evidence as a part of the bill. We shall, therefore, proceed to examine the objections made by her counsel to it. In such consideration we shall be guided by the rule that the proceedings are statutory, that the essential requirements of the statute leading up to the attaching of the lien must be complied with and the provisions of the statute in that regard must be strictly construed. Smalley v. Terra-Cotta Co., 113 Mich. 141. But this does not mean that such provisions shall be “strangled by technicalities,” or that a forced or a strained construction should be indulged in order to defeat the lien.
The affidavit literally follows the form prescribed in section 5 of the act (3 Comp. Laws 1915, § 14800), including the word “he” found in the first line thereof. The material here furnished was furnished by the plaintiff, the corporation, and it is insisted by defendant’s counsel that by the use of the word “he” instead of the word “it” or otherwise designating the corporation as the one furnishing the material, the affidavit is bad. But the áffidavit must be considered from its four corners. All of it miust be taken into consideration. When so considered it can not be doubted that its recitals show that the materials were furnished by the company, that the amount of $639.04 was due to the company over and above all legal set-offs for materials furnished by it, and that it was claiming a lien for that amount for materials so furnished by it. Mr. Scheurman recites in the affidavit that he is secretary of the company. Manifestly if “he” furnished any material he did so as secretary of the company, and as its agent and for its benefit. We are not persuaded that even applying the strict rules of construction to this section we should say that an affidavit is bad which literally follows the wording of the statutory form when other words would be more appropriate where the affidavit as a whole shows that the essential requirements of the statute have been complied with. This objection is untenable.
Nor do we think there is any force in the contention that the affidavit is defective because it does not recite that the Acme Lumber Company and the Modern Construction Company are corporations: Kleinert v. Knoop, 147 Mich. 387. There is no claim that they are not corporations and upon their incorporation they became possessed of this corporate name, could sue and be sued in such name and could transact business in such name. While a recital that a party is a corporation organized under the laws of the State is not infrequent, the use of the corporate name goes to the corporation as one of its rights and such recital is not imperatively necessary to the conduct of its business.
The case of Lacy v. Piatt Power & Heat Co., 157 Mich. 544, is not in point. There in the statement of lien the name of the contractor was given as the Hydro-Electric Development Company. As a matter of fact one Frank McKean was the contractor. This court held that the notice to the owners served no purpose because it conveyed no information to them that the complainant was furnishing material to any one with whom they had contract relations. There a wrong party was named as contractor.
The description of the premises was sufficient. Jossman v. Rice, 121 Mich. 270; Hannah & Lay Mercantile Co. v. Hartzell, 125 Mich. 177. The house was built for Mrs. McAuliff by the construction company and was the only one built for her by it and, so far as the record discloses, it was the only one built for her by any one, nor did she own any other property so far as the record discloses, the failure to name the State in the body of the affidavit although it appeared in the caption was not such a defect as to render the affidavit a nullity. Defendant’s objections to the affidavit áre too technical. They are overruled.
We now come to the remaining question which is one of fact. Plaintiff claims to have seasonably served the notice required by section 14796, 3 Comp. Laws 1915; Defendant denies this. To sustain its contention plaintiff produced a copy of the notice claimed, to have been served and the bookkeeper then in its employ who testified that she served it and identified the defendant Mrs. McAuliff in court as the person upon whom she made service. The ledger of plaintiff showing notation of service of the notice appearing on the page where this account was kept was also produced. Plaintiff’s secretary also testified to a conversation with defendant in which she admitted service of the notice. Defendant denied the service of the notice and denied the conversation. She claimed to have turned over to the bank all her papers relating to building the house when she gave the mortgage, and the mortgage clerk of the bank said no súch paper was among the ones so received. The contractor gave the bank for Mrs. McAuliff an affidavit in which he swore that all material and labor had been paid for, but it would appear that he was also requested to furnish a release from plaintiff. He furnished what purported to be such release but there is no doubt but that it is a forgery. Upon this testimony the trial judge, who saw the witnesses, concluded that the notice was served and sustained the lien. We are satisfied that he was right in his conclusion. We do not intimate that defendant’s testimony is wilfully false but the lapse of time has rendered her memory uncertain and we think she is mistaken.
It follows that the decree should be and it is affirmed. Plaintiff will recover costs of this court.
Steere, C. J., and Wiest, Stone, Clark, Bird, and Sharpe, JJ., concurred. Moore, J., did not sit. | [
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Bird, J.
Plaintiffs are residents and taxpayers of the city of Monroe. They filed their bill in equity to restrain the city from purchasing the Monroe water works, on the theory that to do so would violate the statutory and charter provisions against incurring indebtedness beyond the legal percentage of the assessed valuation of the property of the city. The case was heard upon stipulation as to the facts involved, there being no disagreement as to them. The chancellor refused the relief prayed and the plaintiffs have appealed.
It appears from the stipulation that in pursuance of a special election called for and held on August 31, 1920, the electors of the city of Monroe voted to purchase the Monroe water plant for $125,000, subject to an existing bond issue thereon of $175,000, which the city is to assume and pay at maturity. In order to provide means for making this purchase and increasing the efficiency of the plant they voted to raise, by loan, $550,000. It further appears that the assessed valuation of the city for the year 1920 was $12,551,954, and that its indebtedness at that time was the sum, of $224,507.09.
Acting under the authority voted the city commission has provided, by resolution, to borrow $200,000 of the amount authorized. It is provided this sum is to cover the cash payment of $125,000 for the water works, and $75,000 to be used in making extensions, additions and improvements thereto.
Sections 133 and 297 of the city charter appear to. be material. They are:
“The commission is hereby prohibited, except as herein otherwise provided, from borrowing any money or authorizing the creation of any liability or indebtedness against the city in any. one year, exceeding in the aggregate the amount of five per cent, of the assessed valuation of the property in said city, nor shall it be lawful for said city to ever create an indebtedness existing from time to time to exceed eight per cent, of the assessed valuation of the property of the preceding year.” * * * Section 133.
“The city commission may borrow money on the credit of the city and issue bonds therefor in a sum not to exceed eight per centum of the assessed value of the real and personal property in the city for the purpose of purchasing parks and public grounds and the construction and the erection of all public buildings, libraries, hospitals, almshouses, electric light, gas, heat, water and power plants and other public utilities (except transportation facilities), bridges, sewers and any other public work authorized by this charter whenever approved by the electors voting thereon at any general or special election, provided, that at no time shall the bonded indebtedness of the city exceed eight per centum of the assessed valuation of all real and personal property in the city.” * * * Section 297.
It is argued by plaintiffs that the $550,000 which the electors authorized to be borrowed', plus the $175,000 of water works bonds, payment of which is assumed by the city, makes a total of $725,000 indebtedness, and that this sum is in excess of 5 per cent, of the assessment roll for the year 1920 and, therefore, in violation of charter provision 133. It is also argued that the $725,000 plus the present indebtedness of the city of $224,507.09 is in excess of the 8 per cent, and, therefore, in violation of section 297 of the charter. Plaintiffs conclude that by reason of these sums being in excess of the percentages allowed by the charter they cannot be raised by loan, and further that no part of the amount authorized can be raised.
Defendants do not accept all of plaintiffs’ conclusions as to the figures, but they say that even if the electors authorized more money to be raised than could be legally borrowed in any one year the commission has a right to issue obligations for such part of it as is legal under the law. That there has been no attempt upon the part of the commission to incur the full amount of the indebtedness authorized, but only the $200,000, and that they have, under the law, a clear right to raise this amount because the same is within the 5 per cent, limit as well as within the 8 per cent, limit.
The question, therefore, presented is whether the limitation of 5 per cent, and 8 per cent, applies to the vote authorizing the issue of bonds or to their actual issuance. This precise question came before this court in Stockdale v. School District, 47 Mich. 226. The School district, at an annual meeting, voted to, raise $730.81 by issuing bonds therefor. It was subsequently discovered by those opposed to the appropriation that the legal limit of borrowing by the district was $3,000, and suit was filed to restrain the issue of the bonds. In passing upon the question this court said:
“There seems, however, to have been a statutory limit to the amount of bonds which the district might issue; and this was overlooked at the first meeting. The limit for districts having more than 100 and less than 200 children within the school ages — as this district had — is $3,000. (Public Acts 1877, p. 169.) The district was already bonded to the amount of $2,700, and if the vote had been limited to $300 it would have been valid. Having exceeded that sum, it is claimed to be void. In McPherson v. Foster Bros., 43 Iowa, 48, involving substantially the same question, the vote was held valid to the extent that would have been admissible had the limited sum been proposed and voted; and we agree in this view. See, also, Grand Gulf Bank v. Archer, 8 Smedes & M. (Miss.) 151. The injunction should therefore have been restricted to the excess above $300.”
This appears to have been one of the early cases on the subject and has been followed and cited since by many authorities. A more elaborate statement of the rule appears in 28 Cyc. p. 1584:
“Where municipal bonds have been already issued to the amount authorized by law, all bonds issued thereafter are void; but where the limit has not been previously reached, bonds which in the aggregate exceed the limit are void only to the extent of the excessive issue. Where an issue of bonds is only partially éxcessive if the bonds are delivered at different dates those first delivered up to the amount of the debt the municipality can lawfully create should be! paid and the others should be treated as nullities; but if the bonds were delivered at the same time so that none has priority over the others each bond is valid to the extent of its proportionate share of the debt lawfully contracted.”
Instances of the application of this rule are: Daviess County v. Dickinson, 117 U. S. 657 (6 Sup. Ct. 897); Everett v. School District, 109 Fed. 697; City of Columbus v. Woonsocket Institution of Savings, 52 C. C. A. 118, 114 Fed. 162; Truman v. Inhabitants of Town of Harmony, 198 Fed. 557; Turner v. Commissioners of Woodson County, 27 Kan. 314; Crogster v. Bayfield County, 99 Wis. 1 (74 N. W. 635, 77 N. W. 167); McKinney v. School District, 144 Ky. 85 (137 S. W. 839); Citizens Bank v. City of Terrell, 78 Tex. 450 (14 S. W. 1003).
Plaintiffs have cited several cases in support of their contention but we think an examination of the facts involved therein will show them to be easily distinguished from the present one. Some of the exceptions are where the limitation is applied to the vote of the electors instead of to the issuance of the bonds, or where the legislative power is contemplating or threatening to issue bonds in excess of the percentage limitation. These and other distinctions have caused another rule to be applied.
In the present case, if the electors of the city of Monroe have voted sums in excess of the power to borrow this would not, under the well established rule, prevent them from borrowing up to their percentage limit. If the city commission were taking steps to or threatening to issue the entire amount authorized, or an amount which would be in excess of the 5 per cent, in any one year or a sum in excess of the .8 per cent, plaintiffs would have some reason to complain, but such is not the case. The commission disclaim any intention of violating either the charter or the statute in this respect. They have determined; 'by resolution, that they will borrow $200,000 of the sum, which was authorized by the people. We think the commission was well within its power to do this and we will not assume that even though the electors have authorized a sum in excess of what can be lawfully issued the commission will borrow more than the statute and charter permit. As defendants have disclaimed any intention of going beyond what the law permits in the matter we think the filing of plaintiffs’ bill was premature and should be dismissed. This was the view of the chancellor.
The decree will be affirmed. As the matters involved pertain to a public matter no costs will be allowed either party.
Steere, C. J., and Wiest, Fellows, Stone, Clark, and Sharpe, JJ., concurred. Moore, J., did not sit. | [
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Bird, J.
On July 18, 1917, the parties hereto entered into the following written contract:
“This memorandum of contract made and entered into this 18th day of July, 1917, between A. E. Beebe & Sons, of Mendon, Michigan, copartners, parties of the first part, and Michael M. Cullinane, of the city of Dowagiac, Michigan, party of the second part, witnesseth as follows:
“That the said parties of the first part have sold to said party of the second part and said party of the second part has purchased of said parties of the first part, 4,000 bushels of potatoes of this fall’s crop to he delivered, by said, first parties to said second party in due and seasonable time upon his order and direction in freight cars on the railroad track at Mendon.
“Said potatoes so purchased shall first be run over a regulation grader of 1% screen mesh by said first parties and all potatoes eliminated thereby to be rejected from this purchase.
“Said party of the second part is to pay said parties of the first part for such potatoes so purchased at the rate of 75 cents per bushel.
“Either party to this agreement as preliminary to its execution may require the other to put up a deposit with some competent stakeholder a guaranty fund of $1,000 and upon such demand both parties shall make the deposit and the respective funds so deposited shall be a source for the satisfaction of any judgment for damages by either party for a breach of this contract.
“Witness the hands of the parties in duplicate, the date and year first above written.
“M. M. Cullinane,
“A. E. Beebe & Sons,
Per A. E. B.”
In the month of October, the month in which potatoes are usually harvested, the ground was so wet that plaintiff could not dig the potatoes. The rainfall in that month was about 6.30 inches,.as shown by the proofs. The latter part of the month the weather cleared up and plaintiff finished digging the potatoes on November 6th. He at once notified defendant of the fact and defendant requested him to order some cars at the station at Mendon. Plaintiff complied with this request, but no refrigerator cars were obtainable. Two ordinary freight cars were obtained about the 20th of November and soon thereafter one car was shipped. Later, on December 20th, another car went forward. The weather at this time had become so cold that no further attempt was made to ship the balance of them. This left a balance of 1,700 bushels in plaintiff’s hands. When dug they were placed in piles in the field and later were covered with straw and dirt, but they were not covered sufficiently to prevent them from freezing in the cold weather, and upwards of 1,000 bushels were wholly lost. Plaintiff called upon defendant in the spring to take them. Defendant went and examined them and found them so badly frozen and, decayed that he refused to take any of them. This suit was brought by plaintiff to recover damages by reason of defendant’s failure to accept the potatoes in accordance with the terms of the contract. A trial resulted in a judgment for plaintiff in the sum of $899.40.
Defendant has assigned several errors on the conduct of the trial. We have examined them and are of the opinion that the serious question raised by them was the refusal of the trial court to give the following request suggested by defendant’s counsel:
“Even if the defendant was negligent by reason of which he did not take and ship the potatoes in the fall of 1917, this does not mean that he could be held for damages in this case as it became and was the duty of the plaintiff in digging and pitting the potatoes to properly protect them from frost so that he would be able to tender and deliver to the defendant the kind of potatoes contracted for free from frost, and when he found that winter was approaching it became and was his duty to further cover them so that they would withstand the freezing, and if he failed to do so he cannot recover in this case.”
Upon this phase of the case the trial court instructed the jury that:
“If you find that the contract in question, together with the construction placed upon it by the parties, contemplates and shows that when it was executed it was intended by both parties that the potatoes were to be delivered that fall, then it was not necessary for the plaintiff, upon the digging of the potatoes in question, to put them in pits and cover them so they would not freeze during the winter. Plaintiffs duty, therefore, in such an instance, was to protect the potatoes against ordinary weather of that time of the year and until they shall be delivered in due and seasonable time.”
This was proper as far as it went, but the court should have gone further and instructed the jury that it was the duty of plaintiff to use reasonable care and diligence to protect the potatoes from freezing and damage during the winter, and if he failed to do this the loss would be his own. Of course, in the fall, plaintiff was bound to take such reasonable care to protect them as is usual at that season of the year, but as the days went by and it got into December and defendant did not take them and it became apparent to plaintiff that defendant could not ship them in the ordinary box cars without great hazard, it was plaintiff’s added duty to still further protect the potatoes against damage and frost, and if he failed in that duty he must bear the loss himself. A statement of the general rule is that:
# “It is a fundamental rule that one who is injured in his person or property by the wrongful or negligent acts of another, whether as the result of a tort or of a breach of contract, is bound to exercise reasonable care and diligence to avoid loss or to minimize the resulting damage, and that to the extent that his damages are the result of his active and unreasonable enhancement thereof, or are due to his failure to exercise such reasonable care and diligence, he cannot recover.” 8 R. C. L. p. 422, and cases.
“It is a well-established rule of law that in case of a breach, of contract the injured party must make every reasonable effort within his power to diminish the damages suffered.” Sauer v. Construction Co., 179 Mich. 629.
“The doctrine is well settled that, when' there has been a breach of contract the injured party must do all in his power to diminish the damages suffered, or which he may suffer. If he has an opportunity to protect himself from loss and does not do so, he cannot be heard therefor to complain. 13 Cyc. p. 72; Chandler v. Allison, 10 Mich. 460; Hopkins v. Sanford, 41 Mich. 243; Dennis v. Huyck, 48 Mich. 620 (42 Am. Rep. 479); Talley v. Courter, 93 Mich. 473; Tradesman Co. v. Manufacturing Co., 147 Mich. 702.” Harrington-Wiard Co. v. Manufacturing Co., 166 Mich. 290.
The failure of the court to recognize that it was the duty of plaintiff to protect the potatoes against winter, as well as against fall weather, if defendant were to be charged with damages, and his failure to so instruct the jury, affected the vital- part of the case. If the jury had been instructed to this effect, and further that this rule would obtain whether defendant was in fault or not in failing to accept delivery of the potatoes in the fall, the result might have been different. The question was one for the jury. It was for them to determine whether plaintiff used reasonable care and diligence to protect the potatoes against the frost of winter. If he did he would be entitled to recover if they further found that defendant was in fault in not accepting them when tendered. If plaintiff did not use the care required by the rule then he must suffer the loss himself.
So far as the other issues were concerned they appear to have been fairly tried and without error except as they may have been affected by the question we have discussed.
For the error indicated the judgment must be reversed and a new trial ordered. Defendant will recover his costs of this court.
Steere, C. J., and Moore, Fellows, Stone, Clark, and Sharpe, JJ., concurred.
The late Justice Brooke took no part in this decision. | [
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Sharpe, J.
On August 22, 1907, plaintiff procured a deed of conveyance to be drawn, executed it and caused it to be recorded, of a house and lot in the city of Mt. Clemens to her brother, Edward W. Lawton. It was returned to her, after being recorded, and has since remained in her possession. She testified relative to the transaction:
“I had heard stories around that my brother’s family were trying to hurry me up and get me out of the way that they could get possession of it, of what I had, and. went to the attorneys in Detroit to find out if they were going to be the only heirs or the first ones to receive what little I had; I made up my mind if I died; I wasn’t very well for a long time and had been very miserable and I made up my mind if I did die that they would not get any of my property ; that I would leave it to my brother and I made a deed to that effect, and I didn’t know but what I could go any day and recall that deed any time I wanted to.”
While the deed stated the residence of Edward to be in Honolulu, she testified that he was then in Parel, Mexico; that she had not then heard from him for a good many years; that in 1911 she heard that he was dead and has not heard from him since that time. The heirs at law of Edward are the plaintiff, a sister, Catherine Ryan, and the defendants, who are the children of a deceased brother, Stephen.
The plaintiff in her bill of complaint asks that the deed made by her “be canceled, set aside and held for naught, and the record thereof in the said register of deeds’ office be canceled.” Catherine has quitclaimed to plaintiff. The defendants, answering, deny that plaintiff is entitled to the relief prayed for, allege on information and belief the death of Edward, claim to be tenants in common with plaintiff, and by way of cross-bill ask for a partition or sale of the property and an accounting of the rents and profits thereof.
The trial judge in his findings says:
“I find from the evidence that this deed was never delivered to Edward W. Lawton, and that he never knew of it. * * *
“The evidence shows that Edward W. Lawton has not been heard from for 20 years. This raises a presumption that he is dead.
“Plaintiff is entitled to the relief for which she . prays.”
A decree was made accordingly, from which the defendants appeal.
At the opening of the case defendants’ counsel asked that a jury be called “to pass upon the question of the sanity of the plaintiff.” Their counsel insist that they were so entitled as a matter of right. As the relief granted plaintiff was in no way dependent upon her mental incompetency, we do not feel at liberty to consider this question.
Was there such a delivery of the deed as passed title thereunder to Edward? A presumption of delivery arises when a deed is shown to have been executed, acknowledged and recorded by the grantor. Stevens v. Castel, 63 Mich. 111; Compton v. White, 86 Mich. 33; Glaze v. Insurance Co., 87 Mich. 349; Fenton v. Miller, 94 Mich. 204; Hogadone v. Insurance Co., 133 Mich. 339; Griffin v. Hovey, 179 Mich. 104; Sprunger v. Ensley, 211 Mich. 103; 18 C. J. p. 207. Such presumption may, of course, be rebutted by proof. The object of delivery is to indicate an intent on the part of the grantor to give effect to the instrument. It seems clear to us, as it did to the trial judge, that the plaintiff did not intend to convey a present interest in the property to her brother, but only desired to provide for the title passing to him at her death. Such intent is, we think, evident from what she did and the circumstances surrounding the transaction.
The decree is affirmed, with costs to plaintiff.
Steere, C. J., and Moore, Wiest, Fellows, Stone, Clark, and Bird, JJ., concurred. | [
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Clark, J.
Assumpsit upon the common counts and upon a contract made by plaintiff and defendant, corporations. Defendant reviews here on error a judgment for plaintiff. The first question presented is, May the vice-president of the plaintiff company testify to matters which, if true, would be equally within the knowledge of the deceased vice-president of the defendant corporation? Plaintiff’s vice-president was permitted to testify to such matters. Appellant says this was erroneous under section 12553, 3 Comp. Laws 1915, quoting in part:
“And when any suit or proceedings is prosecuted or defended by any corporation, the opposite party, if examined as a witness in his own behalf, shall not be permitted to testify at all in relation to matters which, if true, must have been equally within the knowledge of a deceased officer or agent of the corporation, and not within the knowledge of any 'surviving officer or agent of the corporation.”
The language quoted became a part of our statute law by Act No. 245, Public Acts of 1881.
It is contended by appellee that under the holding in Rust v. Bennett, 39 Mich. 521, decided in 1878, the vice-president of plaintiff corporation is not an opposite party, that the plaintiff corporation is the opposite party, and that such officer is not within the prohibition of the statute. Of the case cited and of the amendment of 1881 it is said in Perkins on Evidence by Survivor, pages 161, 162:
“The passage of this amendment was necessary to meet the strict construction given to the original act and to prevent the defeat of the purpose of that act in those cases in which a corporation was a party. In an early case decided before the amendment, the court (Cooley, J.) had said:
“ ‘We Lave no doubt the corporators may so testify. It is only parties to the suit the statute renders incompetent, and a corporator and the corporation are distinct persons, not in a legal sense identical at all.’”
Several interesting cases from other jurisdictions are cited by counsel but we need not consider them. This statute was before this court in People’s National Bank v. Wilcox, 186 Mich. 567 (4 Ann. Cas. 465), where it was held (quoting from syllabus) :
“A suit by a bank to foreclose a mortgage, brought against the mortgagor alone, was heard in connection with a suit by another corporation against the mortgagor and the bank to postpone the mortgage to complainant’s execution levy. Held, that, under 3 Comp. Laws, § 10212, neither the mortgagor nor the managing officer of the execution creditor could testify to conversations with a deceased officer of the bank, not in the presence of any surviving officer, having a tendency to impair the validity of the mortgage.”
And it was also said:
“The statute is also intended to protect the interests of corporations when the testimony relates to matters within the knowledge of a deceased officer of a corporation.”
It follows that defendant’s objection to the testimony of plaintiff’s vice-president relating to matters equally within! the knowledge of defendant’s deceased vice-president not shown to have been within the knowledge of any surviving officer of defendant corporation, should have been sustained.
The other question raised is not likely to arise upon a new trial.
Judgment reversed, with costs, and a new trial granted.
Steere, C. J., and Moore, Wiest, Fellows, Stone, Bird, and Sharpe, JJ., concurred. | [
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Steere, C. J.
On April 30, 1918, defendant entered into a contract with the city of Alma to drill for it a sufficient number of wells to supply the city with a stated quantity of water, the drilling to be done upon a described block of land belonging to the city. The essential provisions of said contract are as follows: (Paragraphs numbered for reference.)
(1) — “the said contractor for and in consideration of the price named herein, to be paid by the city and under the penalty expressed therein, agrees and binds himself to furnish all the machinery, tools, labor, material, equipment, fuel, electric current, water, service piping, weir measuring box and all special connections for temporary use in determining capacity of each well drilled and everything necessary in the premises, which may be required for drilling, casing and testing a sufficient number of wells to furnish the city with safe drinking water, said wells to produce at least two thousand (2,000) gallons of water per minute at not to exceed fifteen (15) inches vacuum at elevation eighty-eight (88) city datum, and said contractor guarantees to produce the same for the sum of forty thousand ($40,000) dollars.
(2) “When individual wells are drilled, the contractor shall put the same through a standard weir. The flow of water shall be measured by a standard weir. When the individual wells,.as measured individually, produce at least two thousand (2,000) gallons of water per minute for all of them, they shall be combined and measured in one volume so ;there shall be at least two thousand (2,000) gallons of water per minute from all of them combined.
(3) “The wells are to be eight (8) inches to ten (10) inches in diameter and shall be cased with a standard black drive pipe and the screens to be used shall be manufactured by the Johnson Screen Company of St. Paul, Minn.
(4) “The laws of the State and the ordinances of the city must be observed by the contractor; good order must prevail; the engineer for the city is authorized to reject defective materials or workmanship; contractor will assume all responsibility for accidents and casualties and hold the city harmless and insure all men employed under this contract against injury.
(5) “The payments to be made by the city as follows : When each well is completed and the flow thereof is measured, the contractor shall be entitled to a payment of seventy-five (75) per cent, of the pro rata on the total amount coming to him under the entire contract of not less than two thousand (2,000) gallons per minute. The two thousand (2,000) gallons being used as a basis of computing the amount due him in each instance.
(6) “Upon the completion of said wells and the contractor has demonstrated to the common council and their engineer that he has produced the amount of water required under this contract and that he has paid all claims for material, labor, accidents and damage and fulfilled all the covenants of this contract, he shall be entitled to fifteen per cent. (15%) of the contract price; but this shall not be paid until the final test of all wells combined which is to be deferred as to this payment until the city has installed its pumping machinery and the necessary suction pipes leading to the well.
(7) “The remaining ten (10) per cent, of the contract price shall be paid one year from the date of the final testing of the wells providing that the wells are producing the above amount of water under the above conditions which test shall be satisfactory to the common council of said city all as heretofore set forth in this contract. Otherwise said amount shall not be paid until the contractor shall demonstrate to the common council of said city and its engineer, that the wells are furnishing the amount heretofore specified as required under the conditions set forth in this contract.
(8) “All of the wells put in under this contract shall be upon block No. 17 of the original plat of the village, now city of Alma, Michigan, according to the recorded plat thereof and adjoining property thereto now owned by the city. The exact place where each well shall be put down shall be determined by the contractor.
(9) “Said contractor shall complete and finish everything to be done under this contract on or before December first, A. D. 1918.
(10) “During the time that the contractor is performing under and completing this contract, the title and possession of two well drilling machines and his entire equipment used in said work which shall belong to him and be free from encumbrance and not be encumbered by him, shall remain in the possession of said city and in case of the nonfulfilment of said contract, the right, title and interest of all of said specified property as a penalty for the nonperformance of the guaranty under this contract and the loss the city has sustained in the premises, becomes the property of said city, the same as if sold to said city by bargain and sale with full consideration paid and said city may dispose of said property and give a good and clear title to same as it shall see fit.
(11) “In case the contractor shall not fulfill said contract by producing the amount of water required or otherwise, the city shall have the benefit of what he has done and he shall have no right, title or interest in the wells drilled and the seventy-five (75) per cent, of the contract price which he has . received for the wells he has drilled shall be in full payment for all that he has done and everything he has furnished in the premises and he shall lose all the machinery and equipment as heretofore set forth.
(12) “Both parties hereto agree to complete their several parts of this contract by December first, 1918, as hereto stated, excepting in case of inability to get delivery on certain materials by causes beyond their control, but either party must use their best efforts to obtain the materials as quickly thereafter as possible.”
Soon after entering into the contract defendant commenced drilling at such spots on the designated property as he selected, and drilled 14 wells by December 1,1918, which by separate tests made as each well was claimed completed produced in the aggregate the flow of water specified in the contract. The individual test of each well was made by measuring the flow put through a standard weir by defendant, the then city engineer measuring and taking data of its flowage, which was preserved by the city. These records of the wells separately tested as claimed completed by defendant showed when compiled an aggregate flow of 2,038 gallons per minute. No tests were made in the meantime to determine whether one well took water from another, as was shown to sometimes be the case, defendant claiming he could tell by observation as the individual tests were made whether any well “decreased this so-called flowage,” and that it did not. He never measured nor combined for measurement the flow of the 14 wells in one volume, nor demon strated a flow of at least 2,000 gallons of water per minute from all of them combined. Neither did he ever offer to co-operate, with or aid the city in doing so. Claiming his duties were ended when the total flow by separate tests of individual wells showed in the aggregate a flow of not less than 2,000 gallons per minute, he quit, on December 2, 1918, leaving the wells uncapped and uncared for, never, as he admitted, requested of the city council a combined test or sent them any written communication on the subject, and “never went back and did anything about having a combined test.”
On November 9, 1918, before he claimed to have completed his well digging, defendant secured from the then city council a resolution permitting him to remove one of the two drilling machines he had been using on the Alma contract to Howell, on condition that $3,500 of his next estimate be retained “until he fulfills the provisions of his contract with the city providing for 2,000 gallons per minute.” He was paid 75% of the contract price provided for on individual tests, and was also successful in securing from the city 15% more on warrants issued by the city clerk and authorized by the city authorities, as is claimed. When trouble arose over testing the wells in combination, following a change of city administration in the spring, of 1919, he had received all but $4,000 of the contract price and taken his' other drilling machine and equipment away with him to St. Louis, Michigan, without permission of the city.
Claiming right under the contract to retain possession of this drilling machine so taken without authority, plaintiff after proper demand brought this action of replevin to recover its possession in the circuit court of Gratiot county where trial by jury was had, .resulting in a directed verdict for plaintiff with nominal damages of 6 cents, and judgment thereon.
The questions raised and argued under defendant’s assignments of error involve a construction of the contract in relation to the so-called penalty provision, whether any duty devolved on defendant to make a combined test of the wells or to co-operate with plaintiff in so doing, and refusal of the court to permit defendant to show what was meant by 8 or 10-inch wells.
The city had not completed the erection and equipment of a pumping station when defendant quit on December 2, 1918. The land where the wells, were drilled lies near the Pine river and is comparatively low. Early in the spring of 1919 the river rose with its spring flood until it overflowed the land where the wells were for several days. Defendant claimed that this carried silt, or mud, into the uncapped and uncared for wells, for which he was not responsible, and accounted for the failure of the wells on combined test to produce a sufficient flow to meet his guaranty on the two theories that they had been impaired by the flood and the combined test by city, in which he declined to participate, or to recognize, was not properly made.
That the spring flooding by the river impaired the efficiency of the wells is a questioned theory but, be that as it may, by a fair construction of this contract defendant had possession of the wells he drilled and was responsible for them until a combined test was made as the contract specified, or until he had given notice and made demand of the city for such test within a reasonable time, after which, if not complied with, he might treat the contract as breached. This contract, though inartistically drafted in certain particulars, is fundamentally such that neither party could absolutely default the other without notice. Its comprehensively expressed ultimate object was that defendant would drill a sufficient number of wells for the city at a stated price, which should produce in combination a specified flow of water as shown by a combined test. By paragraph 7 of the contract he was given possession of the tract of land where the wells were to be drilled for All purposes essential to performance on his part, with the right to put down as many wells as he wished wherever he thought best. He had the right to their possession and control until they were combined and tested, and the implied, if not expressed, right to drill more if found necessary to carry out his agreement. Time was not made of the essence of their contract by the date for performance stated in paragraph 12, which contemplated possible delays by reason, of inability to get material, or for other causes beyond their control.
Turning to the contract, we find its first four paragraphs devoted to detailing what defendant contracts to do. In them no obligations on the part of the city, direct or inferential, are found, beyond the implied agreement to pay him the stated price for full performance of his contract.
The first paragraph distinctly obligates him to furnish adequate machinery, labor, etc., including “everything necessary in the premises,” and to drill a sufficient number of wells to furnish the city with safe drinking water therefrom to the amount of 2,000 gallons per minute, and he “guarantees to produce the same” for the $40,000. This unqualified guaranty underlies his whole contract, which makes plain that the separate flow of individual wells measured at different times to that amount is not the accepted test of the guaranty. The second paragraph provides that the Wells must all be combined, and their combined flow must reach that amount before the guaranty is fulfilled. Unless modified by subsequent provisions, as is claimed, it is plain the duty of producing and proving that guaranteed amount of water by the method prescribed is placed upon defendant. This he has never done or offered to do, nor requested plaintiff to do, nor offered to assist or co-operate with it in so doing.
The third and fourth paragraphs specify the size of wells, material to be used, his duty to observe State laws and city ordinances, furnish good material and workmanship and protect the city from liability for casualties.
The fifth, sixth and seventh paragraphs deal with and are primarily devoted to payments, providing times when to be made, amounts and conditions. In paragraph 5, subordinate and directed to the paramount provision' as to payment, appears a qualifying, and not in all respects lucid, provision, relating to the city installing its pumping machinery, etc., which, it is contended for defendant, modifies the previous paragraphs prescribing his obligations and in effect ended his active duties when the aggregate of individual tests of wells he claimed completed, made at different times, summed up to a flow of 2,000 gallons per minute.
Defendant’s estimates furnished under paragraph 5 for separate wells appear in the aggregate to have exceeded the minimum requirement by 38 gallons, and the 75% of the entire contract price it entitled him to has been paid. Paragraph 11 takes care of the situation so far as that transaction is concerned, in the event he thereafter fails to fulfill “said contract by producing the amount of water required, or otherwise.”
Claiming that sufficient wells were drilled on December 2, 1918, he was then at liberty under the first provision of paragraph 6 to demonstrate in such manner and as soon as he-saw fit, “to the common council and their engineer that he has produced the amount of water required under the contract and that he has paid all claims for material, labor, accidents, and dam ages,” etc., which as it reads entitled him to 15% more, leaving but 10% of the full contract- price contingent on further demonstrations under the provisions of paragraph 7; but the concluding sentence of paragraph 6 defers the time for payment of that 15% to a final test after “the city has installed its> pumping machinery and the necessary suction pipes leading to the wells.” This manifestly inapt and beclouding modification is based on the assumption of things to be done by the city not otherwise mentioned or provided for. Nowhere else in this contract is any mention made of the city having pumping machinery, or intimation that it is required to get and install the same in a pumping station or elsewhere. But assuming, as these parties seem to have done, that such is to be inferred from this clause and that it devolved upon the city to build a pumping house near by with pumping machinery installed in it by which the final combined test should be made, such requirement does not relieve defendant of his guaranty to produce from the combined flow of the wells he drilled the volume of water. If the concluding provision in paragraph 6 as to time of payment modified what went before and relieved him of alone preparing for and making a combined test, relegating it to a station and machinery to be built and installed by plaintiff, his duty yet remained to make the test, or at least to co-operate with plaintiff in making it, and demonstrate as required in paragraph 6, “that he has produced the amount of water required under his contract,” etc., unless he had previously given notice and made demand as before stated.
As to the questioned provisions of paragraph 10 providing for penalty and forfeiture, it is not necessary in this replevin action at law involving only the right of possession to pass upon how or to what extent they may be ultimately enforced. The word “penalty” is of such, elastic meaning that it may signify more or less according to the subject-matter and connection in which it is used. No bond appears to have been required in this case as is usual in contracts with municipalities and, as a quasi substitute therefor, we see nothing illegal in the stipulation that possession of this machinery should remain in the city as security for faithful performance. To that extent paragraph 10 is valid and enforceable in a possessory action where nonperformance is shown.
It appears that in the spring of 1919 a city manager named Reynolds who had experience in city engineering and other duties in such service was employed by plaintiff. When he took charge, on May 13, 1919, he found on the water works property the unconnected piping of the wells sticking above the ground and a completed concrete station building, 40x60 feet, but the pumping machinery not yet installed. He proceeded to install the machinery and communicated on the subject by letter with defendant who was then at Jackson. They met at Alma in June and visited the wells together where Reynolds interrogated him about the depth, flow and number given to each well, length and size of screens and other matters preparatory to connecting them up for test and use. Defendant said he had the information at Jackson and would get it for him but failed to do so, as Reynolds claimed, only bringing him a small plat showing the place and number of each well. While there he explained something of his manner of constructing the wells, piping, casing, strainers at the bottom of a four-inch pipe, etc., and said that all the wells were cut off at uniform depth below the surface of the ground. Amongst other things, Reynolds asked him why he installed a 4-inch pipe in a 10-inch well. His explanation was apparently questioned by Reynolds. He remained about an hour and left without making any offer to co-operate or assist in a combined test or, as Reynolds claimed, furnishing the information desired as to the wells for test purposes.
The wells were connected up by Reynolds, followed by both tentative and final tests with metered flow and the flow of all the wells by such test did not exceed 750 gallons per minute. Defendant was sent for after the first test. The mayor of Alma and Reynolds went over the situation with him, told him they wanted no trouble but did want water and asked his opinion as to how to get it. He denied any responsibility, claimed the wells were stopped by silt from the spring freshet and said the way for them to get more water was to put down more wells. On their insisting that he was yet obligated under his- contract to demonstrate that' he had produced the combined flow as specified, he declined in emphatic language to further advise or assist them.
Plaintiff introduced proof that it had installed adequate pumping machinery with requisite suction pipe leading to and connected with the wells and by proper methods measured their flow in one volume, which proved to be less than half the guaranteed amount. To meet this defendant introduced testimony tending to show that the wells were not properly connected with the suction pipe to correctly measure the flow, and no true test was ever made, which it is urged at least raised a question of fact for the jury. If that issue had been submitted to the jury and determined in defendant’s favor it would not .show that the wells if properly tested in combination would meet his guaranty. When called upon to do so he refused to cooperate with the plaintiff in making the test. Had the city refused to co-operate with him or to make the connections and conduct the test as he directed it should be done, another question would be presented; but he made no offer, request, or demand in that particular, so far as shown, and flatly refused to advise or participate in the prescribed method of proving whether or not he had fulfilled on his part.
The controlling question here is plaintiff’s right to possession of the equipment when replevied. Upon that issue the trial court rightly found under the undisputed facts disclosed by this record that defendant had not fulfilled all the covenants of his contract, which provided that until he did such equipment should remain in the possession of said city.
The judgment will stand affirmed.
Moore, Wiest, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred. | [
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Moore, J.
The trial judge stated the issues involved in this- case in his charge to.the jury as follows:
“1. Gentlemen of the jury: Katie. Redmon presents the claim against the estate of her uncle, Anthony Sieber, for services which she claims to have rendered for him front June 15, 1912, to’ April 28, 1915. You are to determine this case not according to the standard of whether you think the claimant equitably ought or ought not to have the claim allowed. You are to determine it on the theory of whether or not as a matter of law, as; the court gives the law to you, she is entitled, as a matter of law, to have her claim in whole or in part.
“2. Unfortunately we are not to have the benefit of the evidence of the two parties who know about the transaction and could tell you just what the arrangement was. Anthony Sieber’s lips have been closed and sealed by death, and Kate! Redmon’s |ips are just as effectively closed and sealed, so far as this case is concerned, by the statutes of this State, which provide that when one party to a controversy is dead and that matter comes into litigation, the living party may not testify to any fact equally within the knowledge of the one who is dead. So that Kate Redmon cannot give you her version of what the arrangement was, if any, between her and Anthony Sieber because Anthony Sieber is not here to give his version, and as Anthony Sieber- must remain silent, in that regard, so Kate Redmon must remain silent, and you are to determine the case without the testimony of either of them.
“3. Kate Redman was born in the home of Anthony Sieber and his mother, and lived there in the family until she was some fifteen years old, when she went to live at North Branch where she remained for a few years and then returned to the home of her grandmother and uncle Anthony Sieber. What induced her to return or why she returned does not appear from the evidence. She remained a member of her uncle’s family from June 15, 1912, to April 28, 1915, and during that time rendered services to members of the family for which she claims the estate of Anthony Sieber is indebted to her, and that is the claim in controversy before you here.
“4. Now I charge you that the courts regard with suspicion and disapproval claims brought against a decedent’s estate for personal services rendered by relatives, especially when the latter are members of his immediate family, as the presumption is that such services between persons occupying such relations are intended to be gratuitous. They are different from services rendered by a stranger who works for another, and as I have said the presumption is that such services were gratuitous, and before the claimant can recover for such services she must satisfy the jury by a preponderance of the evidence that the services were not gratuitous on her part ; that they were rendered, by her, expecting at the time the services were rendered that she would be compensated therefor, and they were not received by her uncle as gratuitous services, but with the expectation on his part that he would pay for them.
“5. Now you will notice that I have said that at the time the services were rendered the claimant must have intended to charge for them in order that she may recover. If at the time these services were rendered she did not intend to charge her uncle for those services, she cannot afterwards for any reason, even if she thinks she ought to have pay for her services, she would not have a right and could not recover unless at the time she rendered the services she expected pay for them, and if she subsequently changed her mind to the effect she ought to have or should have pay for her services, that would not entitle her to recover.
“6. I charge you that in order to entitle claimant to recover in this case it is not necessary that you find that there was any express! agreement on the part of Anthony Sieber to pay her for her services, and an express agreement oh her part to work for him for wages. I charge you that there is no evidence in this case of any express contract on the part of Anthony Sieber to pay Kate Redmon for her services, but if you find that Anthony Sieber intended to pay Kate Redmon — if you find that Anthony Sieber expected to pay Kate Redmon for her services and she rendered the services expecting at the time she .would receive pay for them, then so far as that feature of the case is concerned a liability would arise on the part of Anthony Sieber to pay her for such services. A contract may be implied from circumstances, but the circumstances must be such as will overcome the presumption that the services were gratuitously rendered. She must, in order to enable her to recover, overcome that presumption by a preponderance of the evidence-. Anthony Sieber had no children when he died. He had a sister and two nieces. I charge you the mere fact that he may have expressed an intention that his sister and two nieces should share his property equally, or that Kate Redmon should receive some of his property, would not be evidence that he was indebted to her for her services. It could with the same propriety be said that it was evidence that he was indebted to his sister and the other niece for services.
“7. In this case it is not essential to a recovery that a formal contract be established in reference thereto, but before claimant can recover she must prove facts and circumstances attending the performance of the work and its acceptance sufficient to rebut the presumption that the services were gratuitous, and to authorize the inference that both parties agreed and understood that they were to be paid for.
“8. Unless you find that at the time the services were rendered that Anthony Sieber and Kate Redmon both understood that Anthony Sieber would pay Kate Redmon for her services your verdict will be for the estate, disallowing the claim.
“9. Statements of Anthony Sieber that he expected to do something for Kate Redmon which go no further than to indicate he expected to make provision for her to share in his estate, will not warrant you in allowing her claim, or any part of it, and you will not be justified in allowing her claim or any part of it, on the theory that you think Anthony Sieber should have made some provision for Kate Redmon, and unless you find that the services were rendered with the understanding on the part of Anthony Sieber that he was to pay for them, and with the understanding on the part of Kate Redmon that Anthony Sieber would pay her for them, you will disallow the claim.
“10. Now, gentlemen of the jury, in a nutshell then, the law of the case is this: If you find from the testimony that at the time these services were rendered, Kate Redmon expected to receive pay for them, and Anthony Sieber expected to pay her for them, then she is entitled to receive whatever the services were reasonably worth.
“11. If on the other hand you find that at the time the services, unless you find that at the time the services were rendered Kate Redmon intended to charge for them and Anthony Sieber expected to pay for them, your verdict will be in favor of the estate.
“12. If you find for the claimant you will simply say that you find a verdict for the claimant in whatever amount you find. If you find for the defendant or for the estate, you will simply say, that we disallow the claim, and your verdict will be put in form by the clerk.”
The jury rendered a verdict for the claimant and assessed the damages at $1,768 and judgment was rendered thereon. The case is brought here by writ of error.
The assignments of error are grouped by counsel as follows:
(1) The question of defendant's right to a directed verdict.
(2) The conduct of counsel in placing claimant on the stand, asking her questions which he knew to be incompetent for the purpose of requiring defendant to object.
(3) Improper argument to the jury by plaintiff’s counsel.
Appellant insists that the court should have directed a verdict in favor of the estate, citing Decker v. Kanous’ Estate, 129 Mich. 146, and other cases. In this connection we quote some of the testimony given on the part of the plaintiff. One witness testified in part:
“Well, I was there one time when the old lady was very, bad and Anthony was^alone there with her in the room and I heard of her being bad again, and I went up there to see how they were getting along as usual, and went into the bedroom where they were. Anthony was sitting there, and the old lady was bolstered up in bed and through the conversation she. said to me, ‘John, I have often told; Anthony that he ought to fix something for Katie for her services, but he will just let it go and let it go, just that way, until it.will be too late, I am afraid;’ and the old lady said that to me, to the two of us.
“Mr. Halpin: I ask that that be stricken out, and I think that counsel ought to be reprimanded for bringing that in after the ruling of the court this morning.
“The Court: Yes.
“Mr. Reed: We haven't got it all.
“Q. What did Anthony say?
“A. Anthony says ‘I will have to take care of that, Mother;’ just what he said to his mother. ‘I will have to take care of it.’ ”
Another testified in part:
“Mrs. Sieber has talked with me about her services in Anthony’s presence. She has said to me time after time, ‘How bad I want Anthony to go and draw up papers so Katie would have something. I see my time is short, and worried and worried about it; I do wish he would go and do something for Katie.’
“Q. What did Anthony say?
“A. Anthony says, ‘Mother, I will do just as you want me to do.’
Another witness said in part:
“I never heard Anthony make the statement that if it wasn’t for her they would require a girl and nurse as well. I never heard him say what he was going to do for Katie for her services. I have heard him state that Katie was to receive a share of his property for the services that she performed. He did not tell me that she worked there and stayed there under that arrangement, expecting a share of his estate for the work that she done. He expected to pay her for her services. He said she was a good girl. * * *
“About the time of her marriage he told me he was to give her something for her services.”
We think the court did not err in refusing to direct a verdict. In re Williams’ Estate, 106 Mich. 490; Sammon v. Wood, 107 Mich. 506; Weessies v. VanDyke’s Estate, 159 Mich. 180; Ashley v. Smith’s Estate, 152 Mich. 197; Maynard v. Schrumpf’s Estate, 192 Mich. 494; In re Scully’s Estate, 199 Mich. 181; In re Hoffman’s Estate, 200 Mich. 464.
The record shows as follows:
“Kate Redmon was called as a witness:
“I am the claimant in this case and I am thirty years old. Anthony Sieber was my uncle and his mother was my grandmother. I couldn’t just say but I was around 14 or 15 when I went to North Branch and I was away from there about eight years. I came down to my uncle’s in 1912. I had been living at North Branch the eight years prior to that with Mrs. Sohn.
“Q. When you came back there in 1912 what time of the year did you come back?
“A. Why, the 1st of June.
“Mr. Halpin. I object to this as incompetent.
“The Court: Wouldn’t that be incompetent under the statute, Mr. Reed?
“Q. You may state, Mrs. Redmon, who sent for you to come back.
“Mr. Halpin: I object to that as incompetent and I object to the calling of this witness and the offer of this testimony, requiring us to make this objection. It is error for him to do so and I make that objection.
“The Court: You understand the effect of the statute?
“Mr. Reed: They can waive it.
“The Court: What?
“Mr. Reed: He can waive it.
“Mr. Hatpin: I submit the position he has taken in the case, putting it in shape so we must object is error, and I take exception to it.
“The Court: I will exclude the testimony, Mr. Reed. That is all I can do.
“Q. When were you married Mrs. — ?
“A. 1915, the 28th day of April.
“Q. You may state whether or not you were ever paid anything by Anthony Sieber for your services that you rendered there?
“Mr. Hatpin: To that we object.
“The Court: Have you any question about what the ruling of the court ought to be, Mr. Reed ?
“Mr. Reed: I want to make the record.
“The Court: That isn’t the question I asked you. Don’t you know that testimony is not admissible under •the statute?
“Mr. Reed: I thought, therefore, they would object and the court would rule on it.
“The Court: Do you think you ought to offer testimony that you know is incompetent under the statute? I will exclude the testimony.
“Mr. Reed: Step aside; step aside. We rest.”
Counsel for appellee expresses regret at what occurred, but insists it is not reversible error. The trial judge not only sustained the objection of counsel to the offered testimony but-correctly charged the jury, as will be seen by a reference to the charge, as to the status of Kate Redmon as a witness. We do not think the case should be reversed for what occurred in this connection. See Zimmerman v. Whiteley, 134 Mich. at page 44.
Was the argument of counsel reversible error? An inspection of the record shows it was in reply to the argument of counsel for appellant.
The case was carefully and fairly submitted to the jury by the trial court.
-Judgment is affirmed, with costs to the appellee.
Steere, C. J., and Wiest, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred. | [
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Bird, J.
John. Nolan, the plaintiff, and Rosetta Nolan, one of the parties defendant, were married in February, 1917. They resided at Walker station, a suburb of Grand Rapids. At the time of the marriage John Nolan was a bachelor, 62 years of age- Rosetta was a widow, 54 years of age. The parties lived together until March, 1918, when John went elsewhere and left Rosetta in possession of the homestead. The claim made by John in his bill of complaint is that defendant was guilty of extreme cruelty toward him, and that he was unable to live with her. Defendant Rosetta denies the extreme cruelty charge in the bill and sets up affirmative matter charging plaintiff with extreme cruelty, and also charging that he was in a conspiracy with his two brothers and sister to defraud her out of her alimony rights. As a result of these latter charges plaintiff’s brothers, William and Thomas, and his sister, Mary Harmon, were brought into the case. They answered and the matters went to a hearing. After a somewhat protracted, hearing the chancellor was of the opinion that plaintiff’s charges of extreme cruelty had been sustained and a divorce was accordingly granted to him, with alimony of $2,000 to defendant; also the furniture which had been purchased by them. Defendant’s cross-bill was dismissed. Defendant was dissatisfied with this result and has the case here on appeal for review.
1. The principal items of extreme cruelty relied upon by plaintiff were:
(а) That defendant attempted to poison him and refused to care for him in sickness.
(b) That defendant nagged him for a conveyance of some of his property or for a joint deed thereof.
(c) That defendant was a nagger and was profane, vulgar and abusive.
(d) That she insisted upon quarreling with his relatives and attempted to alienate him from them.
When the parties were married plaintiff was engaged in the business of farming. He had been a farmer all his life on the farm upon which he then lived. After the parents died the plaintiff and his brothers and sister continued to live on the old farm, and as the years went by they added a considerable acreage thereto. The title to all the property was in plaintiff. When plaintiff was married his sister with her three children moved a short distance away. It naturally made some ill feeling in the family to have their living relations interfered with and a new person brought into the family. There was some proof of ill feeling, but nothing of a serious nature took place, although it was shown that latterly Mrs. Harmon, the sister, did not speak to defendant. The record is somewhat voluminous but after going over it carefully I am not impressed that any of these complaints are sustained. The principal testimony given In support of them came from plaintiff, but his testimony was weak and contradictory and at times appeared to be given in a reckless spirit and most of all it lacks corroboration. If all the misdeeds of defendant testified to by plaintiff are to be accepted as true I seriously doubt whether it could be said that his allegations are sustained. A reading of the entire testimony gives one the impression that plaintiff’s brothers and sister were very much disturbed over plaintiff’s marriage, that they did not like defendant for this reason, and that plaintiff under this influence grew tired of defendant and of the new mode of living, and made up his mind to get rid of defendant and restore the status quo.
2. We agree with the conclusion reached by the chancellor that the parties should be legally separated, but we are of the opinion that defendant should be given the decree on her cross-bill. Along early in the fall of 1918, plaintiff evidently made up his mind to get rid of defendant if, he could. From that time on his conduct toward her changed and he began to be disrespectful to her and criticize her. Along the forepart of October his brothers and sister commenced separate suits against him for services. It appeared to be their claims that they were entitled to three-fourths of the property, which was valued at between $40,000 and $45,000, but instead of attempting to get: a three-fourths interest they sued for the value of their services, making claims which would equal: about three-fourths of its value. Plaintiff made no mention of these suits to defendant until the evening before they were to be tried, on January 11th. Then he invited defendant to go down to Grand Rapids with him to the trial on the following day. While there the suits were amicably settled by plaintiff conveying to them three-fourths of the estate, or just what they claimed. Plaintiff retained the homestead and as this was regarded as worth more than one-fourth of the estate he gave them a mortgage thereon for $2,000. After these matters were arranged plaintiff commenced to nag defendant about settling with her, and repeatedly raised the question with her and desired to know whether she would settle for $2,000. She advised him she would not, that she was not asking for any money. From this time on plaintiff’s conduct became more insolent. He urged- defendant to get a divorce from him and sought in many ways to make life a burden for her. He discovered that defendant took some pleasure in talking over the telephone to her friends in Grand Rapids, and he had the telephone taken out. When he refused to have it reinstated, defendant arranged with the Bell telephone people to install one, but, when a man came to do so, plaintiff would not permit it. Plaintiff charged defendant with ¡attempting to poison him, when, so far as the proof shows, there was nothing to it. This, however, became a matter of neighborhood gossip and greatly chagrined and embarrassed the defendant. He charged, her with attempting to choke him at night while they were in bed, but the proof does not show that there was anything to this. Finally he refused to room with defendant and refused to cohabit with her and afterwards deserted her. The record shows she bore the taunts and repeated insults of plaintiff and endeavored to get along and live peaceably with him, but in this respect She was not successful. Plaintiff’s conduct, especially after getting his property matters arranged, was that of a man who was attempting, by his insolent and abusive conduct, to drive his wife to desperation and divorce. We think the decree should be granted to her.
3. It is not our intention to discuss to any considerable length the question of the conspiracy charged against plaintiff and Ins brothers and sister, or to disturb the conclusion which was reached by the chancellor in that regard, except in one particular which will be referred to later. Our views on the amount of alimony that defendant should have render a discussion of that question unnecessary. We might say, generally, that we are convinced the settlement and conveyances were not made in good faith. It is true the testimony shows that Thomas and William assisted plaintiff more or less on the farm and that Mary did the work in the house,, but the record also shows that they were compensated in part as they went along for so doing. We are not prepared- to say they were not entitled to some equitable interest in the property but we feel quite certain that they received more than they were entitled to, and that they would not have received so large a share had it not been for the prospective divorce proceedings, and that a settlement would not have been made when it was had it not been for an attempt upon their part to embarrass defend ant in obtaining her alimony rights when the question of divorce should arise. We think defendant, Rosetta Nolan, should have a decree of divorce on the ground of extreme cruelty. That the allowance to her by the chancellor should be increased from $2,000 to $2,500, and that her attorney fees should be increased from $300 to $500, and that these sums should be made a lien upon the homestead where defendant is now living until the same are paid. We are further of the opinion that this lien should be made prior to the lien of the mortgage which John gave them at the time their settlement «was made. Aside from this the decree may stand as made by the chancellor. Defendant will recover costs' of this court.
Steere, C. J., and Moore, Wiest, Fellows, Stone, Clark, and Sharpe, JJ., concurred. | [
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Stone, J.
The applicant herein, called the plaintiff, claims compensation as a dependent of her son, John Wessala, who sustained an accidental injury while in the employ of the defendant H. G. Christman Company, in the city of Detroit on May 17, 1920, and died the same day as the result of said injuries. It was conceded on the part of the defendants that the decedent was earning. $35.10 per week at the time of the injury. The only question in controversy is whether the plaintiff was a dependent within the meaning of the compensation law, and, if so, the extent of her dependency. The matter was heard on arbitration in November, 1920, and plaintiff was awarded compensation at the rate of $4.22 per week for a period of' 300 weeks for partial dependency. From this award! defendants appealed to the industrial accident board» basing their claim upon the following grounds:
(1) The committee of arbitration erred in ruling that there was any dependency and that plaintiff was a dependent under the terms of the compensation law.
(2) The committee erred in its computation of the basis of dependency, and the extent thereof.
The evidence before the committee and the board tended to show that decedent, who was 34 years of age, and unmarried, had lived in the home of his mother and stepfather in Houghton county for a period of more than a year immediately preceding March, 1920- The family consisted of the plaintiff, her husband, this decedent and two children of the plaintiff’s husband by a former marriage, aged 15 and 18 years respectively, who were not working; also another son of the plaintiff, named George, lived with the family part of the time. The decedent, his brother George, and two strangers boarded with the family, and each paid board at the rate of $27 per month. The plaintiff testified that during the time the decedent lived with the family in Houghton county, he paid her regularly considerable money in addition to his board'. She estimated the amount of his contributions to her at not less than $33 per month, over and above board of $27 peri month; that he had been assisting her in that way “fifteen months consecutively.” There was other testimony tending to place the amount of decedent’s contributions to his mother at $33 per month.
As to the use to which this money was put, and the necessity for the same, plaintiff testified, in part, as follows:
“Q. Now you said a little while ago that the board money you received together with your husband’s salary prior to the time he had been laid off work, was sufficient to buy all the necessities. In that board money did you include the assistance of this extra $33 that you were getting from John? In other words, was that' also necessary? Was it necessary that you received that $30 in addition to the board money from John?
“A. Yes, that was necessary, too.
“Q. That is $33 you had to get that from John to get along?
“A. Yes, sir.”
,
The defendants submitted the deposition of John Kostamo, husband of the plaintiff, and stepfather of the decedent. He testified that decedent, in common with the other boarders, paid $27 per month to him for his board, and that he paid the bills -and running expenses of the home; that decedent made some contributions to his mother, but he did not know the amount, and that these contributions were used by the mother to buy herself clothing. It also appeared that the plaintiff and her husband owned a house and lot at South Range, in Houghton county, but that no payments had been made thereon during the past year, and that the entire income of the family had gone to its support, and that the contributions made by decedent to his mother were necessary.
It appeared that decedent left the home in Houghton county the latter part of March, 1920. The plaintiff testified: “He left in the last days of March.” He gave his mother $51 before leaving home and had contributed nothing for her support thereafter. He was killed on May 17, 1920, probably about seven weeks after he left home. It was agreed that he was earning $5.85 per day at the employment in which he was engaged at the time of his death. The report filed by the defendant company with the board contained the statement: “How long employed? 2 days.”
Aside from this> statement in the report there was no evidence before the board as to what, if anything, the decedent earned after he left the home. He did earn $90 per month during the period of the year, or more, prior to leaving home.
Section 5 of part 2 of the compensation law (2 Comp. Laws 1915,, § 5435) provides:
“If the employee leaves dependents only partly dependent upon his earnings for support at the time of his injury, the weekly compensation to be paid as aforesaid shall be equal to the same proportion of the weekly payments for the benefit of persons wholly dependent as the amount contributed by the employee to such partial dependents bears to the annual earnings of the deceased at the time of his injury.”
After quoting the above provision of the statute the board concludes its findings as follows:
“(11) During the year immediately preceding his death, decedent lived in the home of his stepfather and his mother, the applicant, substantially ten and one-quarter months. During the remaining one and three-quarter months of the year, he was not living at home. During the period of ten and one-fourth months that decedent lived in the home, he contributed, according to the testimony, at the rate of $33 per month, or contributed a total of $338.25, which constitutes decedent’s contribution to the support of his mother during the year preceding his deáth, as he made no contributions after leaving home. His earning, during this period of ten and one-fourth months which he lived at home and earned $90 per month, amounted to $922.50. There is no testimony that he earned any money after leaving home, except as indicated by the report that he worked two days, which, at the rate of wages given in the record, would amount to $11.70, making his total earnings, under the proofs, $934.20.
“(12) Under the provisions of the statute, above quoted, applicant’s dependency, if she was dependent, should be computed as follows:
C:44::338.25:934.20.
According to this computation, applicant would be entitled to compensation at the rate of $5.07 per week.
“(13) We are satisfied from the proofs before us that plaintiff was dependent. The respondents have filed no briefs with this board and we are not advised as to their theory but it is shown by the- record before us that the decedent contributed to his mother at the rate of $33 per month, during the time when he remained at home; $51 of this he gave her upon leaving home. It appears from the testimony presented by the respondents, that the running expenses of the home, exclusive of the claimant’s clothing and personal necessities, were provided for by the husband out of his wages and the proceeds received from the boarders. It appears from the testimony before us that it required all of the earnings of the husband and the proceeds from the boarders, together with the contributions made by the decedent to meet the running expenses of the household and family, and provide the applicant with clothing.
“(14) It does appear that the decedent had not sent money to his mother during the seven weeks preced ing his death. However, he had left his home and acquaintances in Houghton county and gone to the city of Detroit; where he was. presumably among strangers. There is no evidence before us that he had received any money after he left the home. It is probable that it was difficult or impossible for the parties to furnish proof as to his earnings during this period. It would have been of advantage to the respondents to have shown, if possible,, what he earned during this interval, as the greater the amount of his annual earnings in relation to the amount contributed, the less the amount of their liability.
“(15) The decedent was 34 years of age. He had been contributing to his mother’s support regularly. There is nothing in the record, and nothing in the circumstances of this 'case, which would naturally lead to the conclusion, that he had changed his established policy of contributing to the support of his mother, who is shown by the proofs to have needed the support. In fact, it appears from the proofs that the applicant’s husband had become incapacitated for work because of the infirmities of age, after the decedent left home, and the necessity for his contributions to her support had become greater.
“(16) After a careful consideration of all the testimony, and records before us, we find upon the only material questions at issue in this case:
“ (a.) That the applicant, Maggie W. Kostamo, was partially dependent upon the decedent, John Wessala, for support at the time of the accident which caused his death;
“(b) That the annual contribution of said decedent to the support of the applicant, his mother, during the year immediately preceding his accidental death, amounted to $338.25;
“(c) That the decedent’s annual earnings during the years immediately preceding his death, amounted to $934.20;
“(d) That the applicant is entitled to receive and recover compensation from both of said respondents in the sum of $5.07 per week for a period of 300 weeks, as partial dependent.
“(17) It therefore follows that the award on arbi tration should be modified, and an order will be duly entered in conformity with the above findings.”
The defendants in their petition for certiorari assign error as follows:
(1) The committee of arbitration and the industrial accident board each erred in its finding that there was any testimony in the record that disclosed any dependency of the applicant upon the deceased employee under the terms of the compensation law.
(2) That each erred in its computation of the basis of dependency, and the extent thereof.
(3) That the committee and the board, and more especially the latter, erred in failing to allow to the respondents the amount of $226.50 paid out by the respondents for funeral and burial expenses, agreement for which allowance was stipulated by the parties.
(4) The committee and the board erred in entering any award in any form whatsoever, except that respondents were not liable in any manner to the applicant.
Upon the first two points urged, we are unable to agree with the contention of defendants. We do not think that the record is barren of any testimony from which a conclusion can be drawn that after decedent left home the mother was in any way dependent upon him. We think there was evidence that she was partially dependent upon him. That evidence we shall not weigh. Because decedent had not contributed anything for a period of seven weeks it is urged that there was no dependency at the time of the accident. It should be borne in mind that he gave his mother $51 before leaving home. What inference should be drawn from this circumstance?
In Turner v. Miller & Richards, 3 B. W. C. C. 305, a workman who had been a sailor had been accustomed to send money home to his parents. On taking up work on shore for his father he gave a certain amount to his mother each week. On going to sea as a sailor again he was drowned, not having at that time sent anything home. It was held that there was evidence to support a finding that the deceased had been a contributor for years, and would have continued as such had he lived, and that the family was therefore dependent upon him.
The evidence upon which the board may act need not be direct, but may be circumstantial. Meyers v. Railroad Co., 199 Mich. 134.
In proceedings to recover compensation, the facts required to establish a dependent’s claim to compensation need not necessarily be proved by direct evidence, but may be established by reasonable inferences drawn from facts shown to exist. Murphy’s Case, 230 Mass. 99 (119 N. E. 657).
In the case of Miller v. Storage & Cartage Co., 189 Mich. 360, the injury was received September 2, 1914. The claimant, a sister, at the time of the injury was in Colorado. While she was there she had received no aid from her brother, but she had received some before she left. We affirmed the award, holding that the test of dependency is not whether the members of the family could support life without the contributions of decedent, but whether they depended on him for part of their income, or means of living. Other cases might be cited to the same effect. We are of the opinion that the basis of dependency adopted by the board was, in view of the evidence, and the statute above quoted, the correct one.
We notice that plaintiff’s attorney claims in his brief that the plaintiff was wholly dependent on her son and that it should be so held. The plaintiff not having assigned error, or asked for a writ of certiorari, is in no position to claim more than was awarded by the board.
The third assignment of error is well taken. The parties agreed before the committee of arbitration that in case of dependency the sum of $226.50, paid by defendants for funeral expenses, should be allowed, and deducted. The committee allowed $200 only. The former sum will be deducted from the first payment due. To that extent the award will be modified. As so modified the award of the board will be affirmed,, with costs to plaintiff.
Modified and affirmed.
Steere, C. J., and Moore, Wiest, Fellows, Clark, Bird, and Sharpe, JJ., concurred. | [
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Bird, J.
These parties reside in Pontiac and both deal in real estate. Plaintiff secured an option on certain real estate on Saginaw street, described as lot No. 3 and the south 31 feet of lot No. 2, of Hammond’s addition to the city of Pontiac. The lots were owned by different parties. , After securing the option he sold them to defendant on the following agreement:
“We agree to purchase South Saginaw street frontage as per agreement with Dinnan and agree to pay therefor $9,100 as per said agreement.
“Bloomfield Hills Land Company,
“J. E. Tillson, Secretary.”
The following was made soon thereafter as a part of the agreement:
“South 31 feet of lot 2, north 10 feet of lot 3 and remainder of lot 3, Pontiac, Michigan, Hammond addition.
“Re part of lot 2: All of lot 3 as per above, Hammond addition, being 81 foot frontage, South Saginaw street, Pontiac, same width to railway as per deeds and'abstracts showing perfect title.
“Being third and fourth properties south of land owned by American Savings Bank as per description on top of sheet.
“Dinnan offers to cause above to be conveyed at purchase price to Dinnan of $8,965, plus a profit to Dinnan of commission, etc., making the sale price to Bloomfield Hills Land Company, or order, $9,100. Terms to be not to exceed $2,500 cash and balance $60.00 per month, including! interest.
(Reverse side)
“June second, 1919.
“Property on reverse side being 81 feet South Saginaw sold to Bloomfield Hills Land Company according to terms reverse side — and $50.00 received this date on consideration of $9,100, deal to be closed as soon as abstract delivered and examined not exceeding thirty days,
(Signed); “P. W. Dinnan.”
It appears to have been understood that plaintiff wasi getting a commission of $135 on the sale. A few days after this agreement was made plaintiff came to defendant and'informed him that it would have to pay more down on the property or he could not consum mate the deal. He explained to defendant that he had money tied up' in the deal and that he was very desirous of releasing it and that if defendant would make a larger payment which would satisfy the parties he would reduce his commission from- $135 to $11. In pursuance of this agreement the following was indorsed on the contract:
“Pried reduced $124, purchaser to pay down to $2,000 mortgage on Gamble place and Heitsch place down to unpaid amount on contract.
“P. W. Dinnan.”
After the purchases were made defendant learned for the first time that plaintiff did not pay $4,600 for one lot, but instead paid $4,100. When defendant settled with plaintiff it refused to pay him any more than he had paid for the lots and plaintiff brought this suit to recover a claimed balance of $351. Defendant pleaded the general issue and set up its agreement with plaintiff in which it claimed that it had overpaid plaintiff in the sum of $266 by reason of plaintiff’s misrepresentation as to the purchase price. The matter was heard by a jury and a verdict rendered for plaintiff for his entire claim. Subsequently this verdict was set aside by the trial court and a judgment rendered for the defendant for the sum of $266. Plaintiff insists this was error upon the part of the trial court.
It was the claim of plaintiff on the trial, that he did not read the agreement by which he agreed to sell the property to defendant; that the agreement was drawn up by an agent of the defendant and was read to him, but that it did not contain any provisions that he should sell the lots at cost plus his commission; and if the agreement contained this provision defendant’s agent did not read it to him. He further said he was a man of limited education, but did not claim he could not read it. This contention furnished the question of fact which was submitted to the jury by the trial court. After an examination of the record we are convinced that this was the only material contested question there was in the case and we incline to the opinion that this question was one of fact for the jury unless the following occurrence made it one for the court. Plaintiff testified upon cross-examination that the first knowledge he had of this provision in the contract which required him to sell the lots at cost was when he came to get defendant to make a larger advancement upon the purchase price. At that time he testified he was acquainted with its provisions. Conceding, for the sake of the argument, that this question was one for the jury under the original agreement as to whether he understood its contents, he testified he did know of it later and with that knowledge in his possession he dealt with defendant again and persuaded it to advance more moneys on the purchase. Under these circumstances, we think plaintiff waived whatever rights he had to complain that he did not understand the agreement and that he was deceived and defrauded thereby. His act in dealing with defendant as though the contract were valid after he knew of its infirmity amounted to a waiver of the fraud and an affirimation of the contract. 39 Cyc. p. 1292; Wylie v. Gamble, 95 Mich. 564; Draft v. Hesselsweet, 194 Mich. 604; Parkyn v. Ford, 194 Mich. 184. In the face of this admission by plaintiff the trial court was justified in controlling the verdict.
In the event that this court should arrive at the conclusion which it has on this question plaintiff has assigned certain errors on the conduct of the trial which he asserts entitle him to a retrial.
(a) It is insisted that the trial court was in error in refusing to admit the first contract, Exhibit A, without admitting at the same time the balance of the contract, which was Exhibit B. Both were parts of one contract which, it was conceded were made with reference to the purchase and sale of the property. The trial court held that both exhibits be read together. We think no error was. committed in this holding. This holding did not prevent plaintiff from showing that a certain part of Exhibit B, with reference to selling the property at cost, was not read to him.
(b) Plaintiff was prevented from cross-examining defendant’s witness as to the values of real estate in the vicinity of this property. Plaintiff claims this testimony was competent to show whether defendant was deceived. We do not think the judgment of the witness on the question of values was material. The parties were dealing with a contract which had a fixed consideration, and it was of little moment what either of the parties thought on the question of values after the contract was made and signed.
We have examined the remaining assignments, but we find nothing in them which calls for a reversal of the case.
The judgment is affirmed.
Steere, C. J., and Moore, Wiest, Fellows, Stone, Clark, and Sharpe, JJ., concurred. | [
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Bird, J.
On March 15, 1919, plaintiffs purchased on contract the following described real estate in the city of Detroit for the sum of $51,500: Lot 4 north of Warren avenue; and lots 5, 6 and 7, Williams and DesNoyers sub-division of lots 2, 3 and 4 of sub-division of outlot 192, L. Beaubien farm. On June 24th of the same year they sold the premises on contract to defendants, Cohen, for $67,500. Plaintiffs recéived from the Cohens $8,000 in cash and a four-months note for $2,000, which the contract provided should be twice renewed upon payment of interest. The balance of the contract price to be payable in monthly installments of $450 each, including interest. The whole purchase price to be paid on or before 10 years from March 15, 1919.
Defendants went into possession of the premises upon which was situated a 16-apartment building. They made several payments, but soon thereafter fell into a dispute with plaintiffs over certain interior decorations which they had promised to make in the apartments, and refused to make further payments until plaintiffs made them. On September 4, 1919, plaintiffs served defendants with a notice of intention to forfeit their contract because of their failure to pay the August installment, and on October 24, 1919, they served a notice of forfeiture of the contract based upon the failure of defendants to make the August, September and October payments. On November 22d they commenced this suit in ejectment to oust defendants from the premises. It was the claim of the plaintiffs on the trial that defendants had forfeited all their right to the premises under the contract and that they were entitled to the possession thereof and were entitled to retain all that had been paid thereon. These claims are based upon the following paragraph of the contract:
“It is mutually agreed between said parties that the said parties of the second part shall have possession of said premises on and after this date while they shall' not be in default on their part in carrying out the terms hereof, taking and holding such possession hereunder, and shall keep the same in as good condition as. they are at the date hereof until the said sum shall be paid as aforesaid; and if said parties of the second part shall fail to perform this contract, or any part of the same, said parties of the first part shall, immediately after such failure, have a right to declare the same void, and retain whatever may have been paid hereon, and all improvements that may have been made on said premises and may consider and treat the parties of the second part as their tenants holding over without permission, and may take immediate possession of the premises, and remove the parties of the second part therefrom.”
After plaintiffs had made their case in the ejectment suit defendants offered several reasons why plaintiffs could not recover. Among them were the following:
(1) That plaintiffs had waived their notice of forfeiture by accepting payments on the consideration after giving such notice, and because they dealt with defendants with reference to taxes and other matters as though they still regarded the contract in force.
(2) That plaintiffs had not paid the tax on their contract under 1 Comp. Laws 1915, § 4268 et seq., when the notice of forfeiture was given. Therefore, under the statute, the notice of forfeiture was of no force.
It was also shown that defendants had, during the progress of the trial, paid into court the amount due upon the contract.
The trial court concluded the case in favor of defendants on the ground that plaintiffs could not forfeit the contract while the tax on the land contract was unpaid, and on the further ground that their dealings with defendants after the service of the notice of forfeiture was a waiver of it.
It is contended by defendants that the acts of plaintiffs with reference to the contract after the notice of forfeiture was served amounted to a waiver of it, and in support of this they point to the following acts: On October 24, 1919, plaintiffs renewed the $2,000 note and accepted the interest thereon. On February 21, 1920, plaintiffs notified defendants of the maturity of the note on February 24, 1920. On February 24, 1920, the $2,000 note was again renewed and interest paid. On June 24, 1920, the $2,000 note was paid together with the interest thereon. These payments were all received after notice of forfeiture and were made in pursuance of the terms of the contract. In addition to these acts defendants paid the taxes in December, 1919, and in July, 1920, with the knowledge and consent of the plaintiffs.
The rule has often been applied that any attempted forfeiture or rescission by notice may be waived and is waived by subsequent acts clearly inconsistent with an intent to exercise the right. 39 Cyc. p. 1396. The rule has been applied in this State as the following cases will show: Old Second National Bank v. Savings Bank, 115 Mich. 548, 553; Maday v. Roth, 160 Mich. 291; Barber v. Stone, 104 Mich. 90; Patterson v. Carrel, 171 Mich. 296.
We are impressed with, defendants’ contention that plaintiffs’ acts in accepting these payments on the note and renewing it in accordance with the contra.ct indicated an intention to be bound by its terms. It would be difficult to conceive how honest men could have accepted these payments unless they had, at the same time, intended to waive the notice of forfeiture, and it is morally certain that defendants would never have made the payments had they understood that plaintiffs were going to insist upon their notice. At any rate, the law must assume that plaintiffs intended what their acts clearly indicated, namely: That they were going to abide by the contract.
But it is argued by plaintiffs that the acceptance of payment of the $2,000 note has no bearing upon the question as the note was a negotiable instrument and was a complete and separate contract in itself. It is perhaps, true that it was a separate obligation, but it grew out of and was a part of the consideration of the land contract and, if it remained, as it did, in the hands of the original parties it could not be enforced after forfeiture or rescission. If plaintiffs had intended to insist upon its notice of forfeiture they should have tendered the note to defendants (Comstock v. Brasseou, 65 Ill. 39), and under all equitable rules should have refused payment thereon. We think the trial court was unquestionably right in its conclusion on the question of waiver.
The trial court was in no error in permitting plaintiffs to pay the land contract tax imposed by the statute (1 Comp. Laws 1915, § 4268 et seq.), and after doing so it was proper to admit the contract in evidence. Nelson v. Breitenwischer, 194 Mich. 30; Rodenhouse v. DeGolia, 198 Mich. 402. Upon the question whether plaintiffs could legally forfeit the contract while they were in default in payment of the tax, we express no opinion. We prefer to rest our decision solely on the ground of waiver.
The judgment of the lower court is affirmed, with costs of both courts to defendants.
Steere, C. J., and Moore, Wiest, Fellows, Stone, Clark, and Sharpe, JJ., concurred. | [
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Steere, C. J.
Plaintiffs by a bill in chancery seek to compel specific performance of an alleged oral agreement by defendants May to pay them a commission of 3 per cent, of the total income received from a lease they had negotiated as brokers for defendants. Defendants made a motion in the nature of a demurrer to dismiss said bill, urging as a principal ground that the alleged contract was void under the statute of frauds, because not in writing as required by 3 Comp. Laws 1915, § 11981, subd. 5, also no question for equity jurisdiction is involved and plaintiffs have a complete and adequate remedy at law, if any. The trial court overruled said motion and defendants may appeal therefrom, having obtained permission as provided by statute.
The bill of complaint demurred to alleges that plaintiff George D. Bradley was engaged in the business of buying, selling, leasing, etc., real estate in the city of Flint, having associated with him as parties in interest plaintiffs Ellis Bradley and William L. Christner who were duly licensed to pursue the calling of real estate agents. The substance of the alleged oral contract for which specific per formance is asked is thus stated in paragraph 3 of the bill:
“That on or about said 19th day of January, the said plaintiffs, or some of them, learned that the defendants were desirous of selling or leasing certain real estate in said city of Flint, of which said defendants, Frederick E. and Minnie E. May, were in control, and which they assumed to own, and so far as plaintiffs know, are informed and believe, did and do own, viz., lot 16, block 18 of Oak Park subdivision of the city .of Flint, according to the recorded plat thereof, which property was suitable for hotel and restaurant purposes; whereupon, the said plaintiffs, William L. Christner and Ellis Bradley, interviewed said defendant Frederick E. May, and ascertained that said defendants, Frederick E. and Minnie E. May, were desirous of either selling or renting said real estate; whereupon it was then and there agreed between said plaintiffs and said Frederick E. May that the plaintiffs might undertake the selling or leasing of said premises, and that if they secured a sale thereof, at $50,000, the plaintiffs should have 3 per cent, for their services, and if they secured a lease on said property for $500 per month, and sufficiently long to aggregate $60,000, that they should have 3 per cent, on that sum; that said defendants, Frederick E. and Minnie E. May, through said Frederick E. May, specifically agreed that they would pay said plaintiffs 3 per cent, if they procured a sale at $50,000, or 3 per cent, on $60,000 if they procured a lease of said property at $500 per month, and long enough so the aggregate rent would be $60,000.”
The bill further alleges that in performance of said agreement plaintiffs found a lessee of the premises for a term of 10 years at a monthly rental of $500 per month, receiving thereon a payment down of $500, and afterwards had a written lease drawn up embodying the terms of the agreement which was signed by the parties and the deal consummated by putting the lessees. in possession; that defendant Xsadore Himmelhoch by subsequent assign ment became the lessee of said premises, is now in occupation of the same, paying the rents to defendants May according to the terms of the lease; that the first month’s rent of $500 was kept by plaintiffs as part of their commission, $25 of which was paid by them to an attorney for drawing up the papers, but defendants May have since failed to perform on their part and refuse to pay any further commission to plaintiffs for their services in that connection. The bill.asks in customary phraseology specific performance of said agreement to pay the 3 per cent, commission on the total income from said lease, and for a temporary injunction impounding the rent as paid.
Since the amendment of our statute of frauds in 1913, requiring that “every agreement, promise or contract to pay any commission for or upon the sále of any interest in real estate” must be in writing to be enforceable (3 Comp. Laws 1915, § 11981, subd. 5), its construction and application have several times been before this court. Paul v. Graham, 193 Mich. 447; Slocum v. Smith, 195 Mich. 281; Cochran v. Staman, 201 Mich. 630; Greenberg v. Sakwinski, 211 Mich. 498; Webert v. Roberts, 211 Mich. 692; Purdy v. Law, 212 Mich. 275.
In avoidance of the statute it is contended for plaintiffs that the contract relied upon by them is not an agreement for the sale of land or any interest therein, neither is it an agreement “for the leasing,” but only “an agreement to procure a lease to be made in the future and that was done,” for which reasons counsel state in their brief “it is axiomatic that we could recover at law.”
It is also urged in support of this bill that the two remedies are concurrent under the facts in this case; that the equity proceeding affords a complete and immediate remedy in one suit, which is not available in an action at law, and the statute cannot preclude plaintiffs from appealing to a court of chancery, because section 11979, 3 Comp. Laws 1915, leaves with the equity court jurisdiction to compel specific performance of agreements in cases of part performance thereof and there has' been performance in this case, both by services rendered and part payment of compensation therefor, the agreement now being a fully executed contract on plaintiffs’ part.
In any aspect of the case we think this bill for specific performance of an oral contract to pay a stated sum of money for services claimed to have been performed in full is demurrable. If, as counsel contend, the statute of frauds has no application to the transaction as stated in their bill, they have an adequate retrpedy at law and there is no impelling reason for equitable interference. Plaintiffs emphasize full and precise performance on their part, for which they claim an agreed money compensation. In other words, a liquidated indebtedness owing them which the debtors refuse to pay.
As distinguished from such a situation it is said fin Waterman on Specific Performance, § 1:
“A main ground of the jurisdiction of courts of equity in specific performance, is that they are capable of affording relief not obtainable at law; the latter requiring the plaintiff to show precision, on his part, in complying with all the terms of the agreement; while the former sometimes relieve, notwithstanding defects or failure to perform at the day. So a court of equity, having regard to the substance of the agreement and the object and intention of the parties, will not permit terms that are not essential to be set up as a reason for refusing to fulfill.”
If the statute does apply, the following reflections are pertinent:
“But the rule which requires a plaintiff to show a present subsisting right of action is equally regarded in equity as at law. Although a court of equity will supply a remedy where none exists at law, yet it will not create a right of action where the law gives none.” Waterman on Specific Performance, § 18.
“Demands for commissions by real estate brokers are not usually made or pressed until the contract is performed. This being so; a recovery could be had, in nearly every instance, either at the contract price or under the quantum meruit. In order to give the act the effect which the legislature evidently intended it should have, we have decided to hold that no recovery can be had under this section unless the agreement therefor is in writing. This is in accord with the holding of other courts which have construed similar statutes.” Paul v. Graham, 193 Mich. 447.
The decree overruling defendants’ motion in the nature of a demurrer is reversed, and plaintiffs’ bill dismissed with costs.
Moore, Wiest, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred. | [
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Weaver, J.
Respondents appeal as of right from a probate court order terminating the parental rights to their minor child Sabrina Elaine Pars-hall. We affirm.
Respondents DeWayne and Hope Parshall were the parents of three children: Nicholas, born September 12, 1979; Benjamin, born January 12, 1981; and Sabrina, born February 7, 1985. Benjamin died on July 28, 1981, due to head injuries inflicted by his mother from severe shaking and beating. Thereafter, parental rights as to Nicholas were terminated in June of 1983 when he was found to have two broken arms consistent with severe twisting. At issue in this appeal is the termination of parental rights as to Sabrina.
These proceedings began the day after Sabrina was born, when a Department of Social Services worker filed a petition requesting juvenile court jurisdiction pursuant to MCL 712A.2(b)(2); MSA 27.3178(598.2)(b)(2). The petition alleged that after Benjamin died, rights to the ParshalFs second child Nicholas were terminated for physical abuse. At the preliminary hearing before a referee pursuant to MCL 712A.11; MSA 27.3178(598.11), authorization was given to remove Sabrina from the home and place her in Coldwater, Michigan, and the Branch County Probate Court assumed temporary jurisdiction. After the pretrial conference, a dispositional hearing was held on March 14, 1985, pursuant to MCL 712A.18; MSA 27.3178(598.18).
At the dispositional hearing there was testimony by two clinical psychologists, a dss children’s protective worker, and the Branch County Juvenile Court caseworker. On respondents’ behalf there was also testimony by Hope’s sister and five of respondents’ church friends. The psychologists evaluated Hope as impulsive, unable to handle frustration, suffering emotional impairment from her own history as an abused child, and so domineering that her husband would be unable to intervene on a child’s behalf, leaving the child at risk in the home. Hope’s sister and respondents’ church members, on the other hand, all testified to seeing respondents progress in their behavior, and believed that Sabrina would be safe with them.
The hearing was adjourned until March 27, 1985. A psychiatrist recommended intensive individual psychotherapy for a minimum of six months to a year. A clinical psychologist, who had seen Hope during the termination proceedings for Nicholas and was currently seeing respondents on a weekly basis, was optimistic about their improvement. Both respondents indicated their willingness to cooperate with the court, although Hope indicated that she would drop therapy if the child was not returned.
The court found that the dss had not presented clear and convincing evidence of necessity to terminate respondents’ parental rights, and ordered Sabrina to remain in foster care and respondents to continue in counseling, allowing the dss to file another petition if respondents made no progress. A review hearing was set for October 1, 1985.
On filing of the petition for rehearing, the review hearing was rescheduled for October 25, 1985, to allow proper notice to the parties. Although it is unclear whether respondents were sent only a copy of the order adjourning the date from October 1 to October 25, or whether they received both the order of adjournment and a copy of the petition for rehearing, respondents did receive a timely summons for the October 25 rehearing.
At the rehearing, the psychologist who had seen respondents during the previous six months diagnosed both as suffering from personality disorders which are very difficult to cure. He described Hope as antisocial and DeWayne as passive-aggressive/ dependent, each party’s behavior bringing out the worst in the other: DeWayne’s passivity increased Hope’s anger; Hope’s anger increased DeWayne’s passivity. The psychologist believed any child to be at risk in their home: Hope could not control her anger, DeWayne was too passive to prevent violence, and neither party was really willing to change — DeWayne because he was afraid of his wife, and Hope because she liked having her way. Over a period of three years, he had seen no substantial change in Hope; she still tended to project onto others the blame for Benjamin’s death, first onto the dss for not removing the child, second onto DeWayne for not protecting him, and most recently onto her alleged premenstrual syndrome. A second psychologist also testified that because there was no substantial change in respondents during their six months of counseling, any child would be at risk with them.
Persuaded by the dss’s argument and testimony, on January 22, 1986, the court issued a memorandum opinion and order terminating respondents’ parental rights on the ground of neglect, MCL 712A.19a(e); MSA 27.3178(598.19a)(e). Respondents appeal as of right.
On appeal, respondents argue that: (1) the court’s termination of their parental rights for neglect is not supported by clear and convincing evidence; (2) the court erred in terminating DeWayne’s rights because it was only his wife who had abused children; and (3) the court lacked jurisdiction over respondents because it did not originally issue a summons. The dss responds that the court’s actions are supported by case law and clear and convincing evidence, and that whatever defect many have existed was waived or otherwise cured. We agree with the dss and affirm.
i
The probate court found both parents unable to provide a fit home for Sabrina due to neglect under MCL 712A.19a(e); MSA 27.3178(598.19a)(e), which states in pertinent part:
Where a child remains in foster care in the temporary custody of the court following the initial hearing . . . the court may make a final determination and order placing the child in the permanent custody of the court, if it finds any of the following:
(e) The parent or guardian is unable to provide a fit home for the child by reason of neglect.
Findings of fact which support termination of parental rights' will not be reversed unless they are clearly erroneous. In re Cornet, 422 Mich 274, 277; 373 NW2d 536 (1985). A finding is clearly erroneous when, despite evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made. Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976). We do not believe that a mistake was made here.
Real evidence of longtime neglect or serious threats to the future welfare of a child will justify termination of parental rights on the basis of neglect. Fritts v Krugh, 354 Mich 97, 116; 92 NW2d 604 (1958); In re Moore, 134 Mich App 586, 593; 351 NW2d 615 (1984). Abuse of one child is probative of a parent’s proclivity to abuse other children, and may justify a change in custody. In re LaFlure, 48 Mich App 377, 392; 210 NW2d 482 (1973), lv den 390 Mich 814 (1973); In re Dittrick Infant, 80 Mich App 219, 222; 263 NW2d 37 (1977).
In this case, two dss caseworkers recommended that respondents’ parental rights be terminated. Two psychologists testified throughout the hearing process that their evaluations showed Hope to be highly impulsive with very low tolerance for frustration, and that even with long-term therapy it was uncertain whether any child would ever be safe with her. One of Hope’s children had already died because of Hope’s violent rages, and another child had been severely abused and subsequently removed from the home. Even the psychiatrist who testified for respondents acknowledged Hope’s low frustration tolerance and recommended intensive therapy for six months to one year.
The burden is upon the petitioner to prove by clear and convincing evidence that termination of parental rights is warranted. LaFlure, supra, p 386. Once grounds for terminating parental rights have been established by clear and convincing evidence, the trial court considers the best inter ests of the child. In re Schejbal, 131 Mich App 833, 836, 346 NW2d 597 (1984). The court should then enter findings of fact. In re Slis, 144 Mich App 678, 688; 375 NW2d 788 (1985).
Here, the petitioner met its burden of proof, causing the probate court to find by clear and convincing evidence that termination of rights was warranted pursuant to MCL 712A.19a(e); MSA 27.3178(598.19a)(e) by reason of neglect. The court then entered detailed findings of fact and conclusions of law. The probate court’s findings of fact are not clearly erroneous and will not be reversed.
ii
Respondents next argue that the court clearly erred when terminating DeWayne’s rights, because it was only Hope who abused children. This argument is without merit. Parental rights may be terminated on the basis of neglect where, although one parent does not personally abuse the child, that parent permits an environment to continue where children will likely be abused. In re Rinesmith, 144 Mich App 475, 483; 376 NW2d 139 (1985), lv den 424 Mich 855 (1985).
In this case, DeWayne was diagnosed as passive-aggressive/dependent. He admitted doing nothing about Benjamin’s abuse, and at the time Nicholas was removed could not explain why the child had two broken arms. Therefore, it is reasonable to conclude that he permitted the continuance of an abusive environment dangerous to children, and would likely continue to do so unless his personality disorder could be cured by therapy. Since such therapy would require at least one year, during that year Sabrina would remain at risk. Hence the court did not clearly err in terminating DeWayne’s parental rights as to Sabrina.
m
Finally, respondents argue that the probate court lacked jurisdiction because it did not initially issue a summons. We disagree.
Respondents rely on In re Brown, 149 Mich App 529; 386 NW2d 577 (1986), for the proposition that the court needed to issue a summons if it did not dismiss the petition, and therefore the termination proceeding was void for lack of notice. Id., p 537, 542. However, Brown only interprets the statutory language of MCL 712A.12; MSA 27.3178(598.12) to require a summons in the case of a dispositional hearing or a hearing for termination of parental rights. Further, Brown acknowledged that a respondent may waive notice of hearing. Id., p 542.
In this case, the termination proceedings were not void for lack of notice in contravention of Brown. First, Brown did not require a summons for either the prehearing or a pretrial conference. Second, respondents at their pretrial conference waived any notice defects for the March 14, 1985, dispositional hearing by signing a "Waiver of Notice of Hearing,” such a waiver being specifically allowed by Brown. Third, respondents received a summons, which was personally and separately served on each of them, for the October 25, 1985, rehearing, at which their parental rights were terminated. Therefore, respondents should not be heard to complain of inadequate notice, since the proceedings covered by the reasoning in Brown— namely the dispositional hearing and the hearing for termination of parental rights — were proceedings of which they had notice.
In conclusion, we note that the probate court’s termination of parental rights on the basis of neglect is supported by clear and convincing evidence; that because DeWayne permitted the continuance of an abusive environment dangerous to children, the court did not err in terminating his rights; and that the termination proceedings were not void for failure of notice.
Affirmed.
After a petition shall have been filed and after such further investigation as the court may direct, in the course of which the court may order the child to be examined by a physician, dentist, psychologist or psychiatrist, the court may dismiss said petition or may issue a summons reciting briefly the substance of the petition, and requiring the person or persons who have the custody or control of the child, or with whom the child may be, to appear personally and bring the child before the court at a time and place stated. [Emphasis added.] | [
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Shepherd, P.J.
Defendant appeals from the May 19, 1985, decision of the Workers’ Compensation Appeal Board affirming the hearing referee’s decision finding that plaintiff had suffered a job-related injury on October 7, 1975, and ordering defendant to pay workers’ compensation benefits of $112 per week from August 18, 1977, until further order of the Bureau of Workers’ Disability Compensation (bureau), plus unpaid medical expenses. We affirm and remand for further proceedings.
Plaintiff, a fire fighter employed by defendant, was retired at age fifty-four when granted a duty disability retirement effective August 18, 1977. Pursuant to Saginaw Administrative Code, ch 5, art 1, § 124.2 (SAC § 124.2), plaintiff was entitled to a biweekly duty disability pension of $512.63. Plaintiff petitioned for workers’ compensation benefits on May 4, 1978, alleging a work-related injury which occurred on October 7, 1975. At the hearing, the parties stipulated that plaintiff continued to be disabled as a result of the injury. On January 27, 1981, the hearing officer ordered benefits paid from August 18, 1977, at the rate of $112 per week, until further order of the bureau, plus unpaid medical expenses. In making his determination, the hearing officer found that plaintiff’s duty disability pension did not constitute "like benefits” prescribed by the municipal charter. Accordingly, plaintiff was not barred from receiving workers’ compensation benefits under the election provision of MCL 418.161; MSA 17.237(161) (§161). The wcab affirmed on May 29, 1985, relying on Bannan v Saginaw, 420 Mich 376; 362 NW2d 668 (1984), reh den 421 Mich 1202 (1985).
i
The first issue is the applicability of § 161 to plaintiff’s pension. At the time plaintiff petitioned for workers’ compensation benefits, § 161 provided in part:
Policemen, firemen, or employees of the police or fire departments, or their dependents, in municipalities or villages of this state having charter provisions prescribing like benefits, may waive the provisions of this act and accept in lieu thereof like benefits as are prescribed in the charter but shall not be entitled to like benefits from both. Nothing contained in this act shall be construed as limiting, changing, or repealing any of the provisions of a charter of a municipality or village of this state relating to benefits, compensation, pensions, or retirement independent of this act, provided for employees.
The Supreme Court interpreted § 161 and Saginaw’s duty disability ordinance in Bannan, supra. The Court found that § 161 did not apply to the duty disability pension plan because the plan was provided for by ordinance rather than city charter and that the plaintiffs were entitled to both the pension benefits and workers’ compensation benefits.
Section 161 was amended by 1983 PA 162 to remove the references to benefits prescribed by charter:
Police officers, fire fighters, or employees of the police or fire departments, or their dependents, in municipalities or villages of this state providing like benefits, may waive the provisions of this act and accept like benefits that are provided by the municipality or village but shall not be entitled to like benefits from both the municipality or village and this act; however, this waiver shall not prohibit such employees or their dependents from being reimbursed under section 315 for the medical expenses or portion of medical expenses that are not otherwise provided for by the municipality or village.
The amendment was effective July 24, 1983.
Unless we are willing to apply the amendment retroactively, it can have no effect on plaintiff’s receiving both pension benefits and workers’ compensation benefits prior to July 24, 1983, given the holding in Bannan. Bannan expressed no opinion as to the amendment’s applicability. 420 Mich at 386, n 4.
Although this issue is one of first impression, we find the Supreme Court’s decision in Franks v White Pine Copper Division, 422 Mich 636; 375 NW2d 715 (1985), reh den 424 Mich 1202 (1985), instructive. In Franks, the Court examined the applicability of the coordination of benefits provision in MCL 418.354; MSA 17.237(354) and the unemployment compensation setoff provision in MCL 418.358; MSA 17.237(358) to workers’ compensation claimants whose injuries predated the effective date of the amendments containing those sections. After examining the language of the provisions, the Court found that the amended sections were applicable to workers whose injuries preceded the effective dates of the amendments. The holding, however, was limited to workers’ compensation benefits payable after the effective date for periods of disability after that date. 422 Mich at 664, 669, 674.
By analogy to Franks, we do not believe the amendment presently under our consideration should apply to payments prior to July 24, 1983, for periods of disability prior to that date. Defendant apparently concedes this. In its request for relief, defendant has only asked that this Court reverse the decision of the wcab "insofar as it awards plaintiff any benefits after the July 24, 1983 effective date of 1983 PA 162.” Accordingly, we hold that Bannan controls as to benefits paid before that date and that plaintiff was entitled to receive both his duty disability pension benefits and workers’ compensation benefits without election.
The next question is whether amended § 161 should apply to benefits paid after July 24, 1983. Again by analogy to Franks, we hold that it does. In Franks, the Court found the statute clear and unambiguous, requiring coordination for all compensable periods subsequent to its effective date regardless of when the injury occurred. 422 Mich at 651. The Court held that such application of the amended provisions did not constitute retroactive application of those provisions. Compensation ben efits were not being retroactively coordinated or reduced; rather, the benefits of all disabled workers were being prospectively coordinated after the effective date of the amendments regardless of when the workers were injured. 422 Mich at 652-653.
As was true of the sections considered in Franks, amended § 161 is clear and unambiguous, requiring certain workers to elect between workers’ compensation benefits and other "like benefits” provided by a municipality. The statute’s language does not limit its application to those workers injured after the effective date of the amendment, nor does it make an exception for workers injured prior to that date.
Plaintiff argues that application of § 161 to a governmental pension such as his raises a constitutional problem. Plaintiff relies on a footnote to the Franks opinion:
Income-maintenance benefits payable under a legislatively mandated social welfare program are not property protected by the Due Process Clause, the Contract Clause, or the Takings Clause from substantive change by subsequent legislation irrespective of whether the recipient contributed to the cost of funding the benefit or of whether the program replaces a tort remedy which has been abolished.
We do not find that the election posed by § 161 would diminish or impair plaintiff’s rights in his pension if the section were applicable. It does not act to deny a pension; at issue is a worker’s right to receive both a pension and the benefits of a social welfare program such as workers’ compensation.
n
Having concluded that § 161 applies to plaintiff’s workers’ compensation benefits after July 24, 1983, the question remains whether plaintiff’s duty disability pension benefits are "like benefits” so as to require an election of benefits. We hold that they are not.
Our review of the record indicates that plaintiff has not waived this issue. Neither the hearing officer nor the wcab made a determination of whether these are "like benefits,” having found § 161 completely inapplicable. We recognize that the wcab is exclusively empowered to make factual determinations in workers’ compensation cases and that no exception to this rule is made for considerations of judicial economy. Williams v Lang (After Remand), 415 Mich 179, 183; 327 NW2d 240 (1982). The question of whether these are "like benefits,” however, is one of law rather than fact. This Court has authority to review questions of law involved in a final order of the wcab. Aquilina v General Motors Corp, 403 Mich 206, 213; 267 NW2d 923 (1978). Accordingly, we consider the issue on the merits.
The Supreme Court’s disposition of Bannan, supra, made it unnecessary for the Court to determine if the duty disability pension benefits presently before us are "like benefits” within the meaning of § 161. Our interpretation of the relevant provisions of the Saginaw Administrative Code convinces us that the pension benefits are not "like benefits” once a recipient has attained age fifty-five.
SAC § 123.1 permits duty disability retirement for Saginaw police officers and fire fighters who become totally incapacitated in the course of their employment. A pension upon retirement is provided for in SAC § 124.1. SAC § 124.2 provides:
A member who retires prior to his attainment of age 55 years on account of disability, as provided in Section 123, shall receive a disability pension computed according to subsection 118.1 and 118.3. For the exclusive purpose only of computing his disability pension his credited service shall be increased by the numbers of years, and fraction of a year, in the period from the date of his disability retirement to the date he would attain age 55 years. Upon his attainment of age 55 years his disability pension shall be recomputed using a final average salary determined according to the salaries at the time he attains age 55 years for the ranks used in computing his final average salary at the time of his disability retirement. In no event shall such recomputed disability pension be less than the disability pension he received prior to his attaining age 55 years. Upon his retirement he shall have the right to elect, in lieu of a straight life disability pension, to receive his disability pension under an option provided for in Section 120. To his attainment of age 55 years his disability pension shall be subject to Sections 128 and 129.
SAC § 129.1 requires that any workers’ compensation benefits payable be offset against any pension benefits payable. In Bannan v Saginaw, 120 Mich App 307, 320; 328 NW2d 35 (1982), aff'd 420 Mich 376, 382; 362 NW2d 668 (1984), this Court held that the SAC § 129 offset does not apply to disabled retirees after they reach age fifty-five.
Under the disability pension provided for by SAC § 124, workers’ compensation benefits paid to a disabled worker must be offset against pension payments until the disabled worker reaches age fifty-five. We conclude that the duty disability retirement pension benefits paid to a disabled worker who is not fifty-five years old constitute "like benefits” under § 161. We note, however, that the offset requirements of the Saginaw Administrative Code eliminate the need to apply § 161 to benefits received before age fifty-five.
The disabled worker’s pension is recalculated when the worker reaches fifty-five. At the time of the instant plaintiff’s retirement, fifty-five years corresponded to the age at which a Saginaw fire fighter could voluntarily retire, SAC § 102.1(u). This pension is no longer subject to the workers’ compensation offset provision of SAC § 129. Although the pension is still referred to as a "disability pension,” the worker who attains age fifty-five is actually receiving retirement benefits to which the worker would be entitled regardless of disability. We believe that once a disabled worker attains age fifty-five the pension should be considered a retirement rather than disability pension. As the pension benefits must be considered retirement benefits, they are not "like benefits” under § 161. See Teddy v Dep’t of State Police, 102 Mich App 412, 421-422; 301 NW2d 876 (1980). Plaintiff was not subject to the election provision of § 161 after he attained age fifty-five.
Although both Bannan opinions ultimately turned on the inapplicability of § 161 rather than whether "like benefits” were involved, our holding is consistent with language in both opinions. This Court characterized the disability benefits as "primarily retirement benefits.” 120 Mich App at 323. The Supreme Court, in analyzing the SAC § 129 offset, noted that defendant’s pension system is funded in part by mandatory wage contributions and that members of the pension system do not participate in the federal social security system. "We agree with the plaintiffs’ contention that to deprive duty disabled retirees of their earned retirement income, after they have become 55 years of age, is contrary to the underlying purpose of the pension ordinance.” 420 Mich at 385. Defendant’s characterization of plaintiff’s benefits would appear to deprive plaintiff of a pension plan he had paid into before becoming disabled.
We are aware that an apparently opposite conclusion was reached by a panel of this Court in Johnson v Muskegon, 61 Mich App 121; 232 NW2d 325 (1975). In Johnson, the plaintiff was receiving a duty disability pension provided for by the city charter. The opinion indicated that, at age fifty-five, the plaintiff "would be entitled to retirement pension benefits for the remainder of his life.” Id. at 123. The Johnson Court apparently concluded that it had before it "periodic payments for disability.” It is not clear from the opinion if the plaintiff had yet reached age fifty-five and thus whether the plaintiff’s benefits had yet assumed the character of retirement pension benefits. To the extent that Johnson holds that retirement pension benefits are "like benefits” under § 161, however, we disagree with the holding.
hi
Defendant argues that if we find that plaintiff’s duty disability pension benefits are not "like bene fits,” other offset provisions must necessarily come into play. We agree in part.
Defendant first argues that the SAC § 129 offset provision must apply if plaintiff’s benefits are construed not to be disability benefits. While we find that plaintiff’s benefits after age fifty-five are primarily retirement benefits, plaintiff nonetheless receives them pursuant to § 124 of the Saginaw ordinance. The clear wording of that ordinance and both Bannan opinions preclude operation of the SAC § 129 offset after the retiree attains age fifty-five.
We agree with defendant, however, that MCL 418.354; MSA 17.237(354) (§ 354) may be applicable. Section 354 provides in part:
(1) This section is applicable when either weekly or lump sum payments are made to an employee as a result of liability pursuant to section 351, 361, or 835 with respect to the same time period for which old-age insurance benefit payments under the social security act, 42 U.S.C. 301 to 139f; payments under a self-insurance plan, a wage continuation plan, or a disability insurance policy provided by the employer; or pension or retirement payments pursuant to a plan or program established or maintained by the employer, are also received or being received by the employee. Except as otherwise provided in this section, the employer’s obligation to pay or cause to be paid weekly benefits other than specific loss benefits under section 361(2) and (3) shall be reduced by these amounts:
(e) The proportional amount, based on the ratio of the employer’s contributions to the total contributions to the plan or program, of the after-tax amount of the pension or retirement payments received or being received by the employee pursuant to a plan or program established or main tained by the same employer from whom benefits under section 351, 361, or 835 are received, if the employee did contribute directly to the pension or retirement plan or program. Subsequent increases in a pension or retirement program shall not affect the coordination of these benefits.
(14) This section does not apply to any payments received or to be received under a disability pension plan provided by the same employer which plan is in existence on March 31, 1982. Any disability pension plan entered into or renewed after March 31, 1982 may provide that the payments under that disability pension plan provided by the employer shall not be coordinated pursuant to this section.
We concluded in part ii that plaintiffs pension benefits are in the nature of retirement benefits. As such, § 354(l)(e) allows coordination of the pension benefits and workers’ compensation benefits. Because of this retirement nature of plaintiffs pension benefits, § 354(14) does not remove plaintiffs pension from coordination even though it is termed a disability pension. Plaintiff cannot have it both ways. Our holding that after age fifty-five plaintiffs pension was primarily a retirement pension was to plaintiffs advantage. Since we do not view such benefits as "like benefits,” § 161 does not apply to plaintiffs pension. Plaintiff cannot now argue that § 354 also does not apply because his pension is for disability. Section 354 represents a legislative enactment to remedy compensation abuses. See Franks, supra at 655-658. We will not thwart the Legislature’s purpose by a disingenuous application of the exception to coordination found in § 354(14).
As discussed above in part i, the Supreme Court in Franks, supra at 651, permitted the application of § 354 to workers’ compensation payments made after the section’s March 31, 1982, effective date, even though the employee was injured prior to that effective date. We disagree with plaintiff’s assumption that the Supreme Court created an exception for governmental pension plans. 422 Mich 654, n 9. Coordination of workers’ compensation benefits reduces only those benefits. Coordination has no effect on a claimant’s pension benefits.
It appears that the applicability of § 354 may have been first raised in defendant’s reply brief to this Court. MCL 418.354(9); MSA 17.237(354)0) provides that receipt of pension benefits and the like after March 31, 1982, during a period in which the employee received unreduced workers’ compensation benefits is considered to have created an overpayment of compensation benefits subject to reimbursement. On remand, the wcab may determine the applicability of coordination pursuant to § 354.
Plaintiff has indicated to this Court that he is also entitled to supplemental workers’ compensation benefits pursuant to MCL 418.352(1); MSA 17.237(352)(1). On remand, the wcab may also determine plaintiff’s entitlement to such benefits. We note that these benefits are not subject to the § 161 election or the SAC § 129 offset. Nor are they subject to coordination under § 354. Franks, supra at 660.
In summary, plaintiff’s duty disability pension is provided for by ordinance rather than charter. Prior to July 24, 1983, § 161 of the workers’ compensation act was inapplicable to such benefits. While § 161 applies to payments made after that date, plaintiff’s pension became primarily a retirement benefit when he reached age fifty-five. As such, the pension benefits plaintiff receives are no longer "like benefits” within the meaning of § 161, and plaintiff need not elect between benefits. As they are duty disability pension benefits, the payments may not be offset against plaintiff’s workers’ compensation benefits under SAC § 129. After March 31, 1982, plaintiff’s workers’ compensation payments were subject to the coordination provision of § 354. The exact application of that section remains for the wcab to decide.
Accordingly, we affirm the wcab’s decision and remand to the wcab for further proceedings consistent with this opinion.
The Michigan Constitution provides, however, that "[t]he accrued financial benefits of each pension plan and retirement system of the state and its political subdivisions shall be a contractual obligation thereof which shall not be diminished or impaired thereby.” Const 1963, art 9, § 24. [422 Mich 654.]
SAC § 102.1(u) also provides that the voluntary retirement age for police officers is fifty-two years. According to defendant, the ordinance has now been amended to provide for a voluntary retirement age of fifty-two years for fire fighters. This does not change our result. The key factor is not that recalculation of the disability pension corresponded to the fire fighter voluntary retirement age, but that at age fifty-five police officers and fire fighters can voluntarily retire. The recalculation thus comes at a time when those workers could be receiving retirement benefits but for their disability. | [
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M. J. Kelly, P. J.
Defendant appeals as of right from a judgment of $10,000 and an award of costs in the amount of $60 and attorney fees in the amount of $1,000. We modify the order of summary disposition, reverse the award of attorney fees and remand for further proceedings consistent with this opinion._
The parties were divorced on August 26, 1980, after a marriage of nineteen years. The judgment of divorce, entered by Judge Hilda R. Gage in Oakland Circuit Court, action No. 79-194547 DM, expressly bars the right of either party to receive "regular alimony.” However, under a provision in the judgment of divorce captioned "Alimony In Gross,” defendant was ordered to pay plaintiff the sum of $211,000 at the rate of $666.67 per month for a period of two years following judgment and at a rate of $1,250 per month for an additional thirteen years or until the total amount of $211,-000 was paid. Plaintiff’s right to receive these payments was unconditional for the first five years but was thereafter terminable upon her remarriage. Death of either party was not addressed, though plaintiff was designated irrevocable beneficiary of a $125,000 life insurance policy "to secure the unpaid support as well as the alimony in gross provisions . . . .”
Apparently, defendant made his last payment in June of 1985. He claims five full years were paid, but we are unable to verify that on this record. He informed plaintiff that he considered himself relieved of any further obligation under the divorce judgment because plaintiff was cohabiting with another man. Plaintiff thereupon filed this independent action in Oakland Circuit Court, seeking entry of a money judgment for the balance remaining on the sum of $211,000, as well as costs and attorney fees. The case was assigned to Judge James S. Thorburn, action No. 85-301071 CK. Defendant answered plaintiff’s complaint, citing her cohabitation as his only defense. Plaintiff then filed a motion for summary disposition under MCR 2.116(C)(9), which the trial court granted by order entered March 26, 1986. Plaintiff was awarded $10,000 as the amount owed by defendant in ar rears. By separate order entered the same day, the court awarded plaintiff costs and attorney fees.
Defendant argues on appeal that the trial court erred in refusing to conduct an evidentiary hearing in order to determine whether plaintiff’s needs and circumstances had changed sufficiently to allow modification of the alimony award. However, the trial court in this case had no jurisdiction to entertain such a modification request, since jurisdiction rests solely with the judge who originally entertained this divorce action, Judge Hilda Gage. Unlike any of the cases cited by defendant in his brief on appeal, this is an independent action for a money judgment on a property settlement and not a petition to enforce in the original action.
If the award of alimony issued in the original divorce judgment represents alimony in gross, that award is enforceable by plaintiff in an action at law. Corley v Corley, 79 Mich App 499, 504; 261 NW2d 65 (1977), citing Bartholomae v Stellwagen, 277 Mich 618; 270 NW 159 (1936). To the extent, if any, the award of alimony entered in 1980 is periodic, plaintiff’s only avenue of enforcement would be through the continuing jurisdiction of the court in the original divorce action. Generally, the moving party petitions to have any arrearage reduced to a money judgment, at which time the court ascertains whether the original award should be modified. Id.; see also Landy v Landy, 131 Mich App 519; 345 NW2d 720 (1984), and cases cited therein. Because the relief available to plaintiff in this action is determined by the nature of the alimony award she seeks to enforce, we must first determine whether the 1980 alimony award constitutes alimony in gross or periodic alimony.
In Michigan, an award of alimony which constitutes a sum certain and is payable either in one lump sum or by periodic payments of a definite amount over a specific period of time is considered alimony in gross and is nonmodifiable. See Couzens v Couzens, 140 Mich App 423; 364 NW2d 340 (1985); Oknaian v Oknaian, 90 Mich App 28; 282 NW2d 230 (1979), and Firnschild v Firnschild, 67 Mich App 327; 240 NW2d 790 (1976). The situation presented in this case is nearly identical to that presented in Oknaian, supra, where the provision of alimony obligated plaintiff husband to pay defendant wife $500 per week for the first five years following entry of the divorce judgment "not . . . modifiable for remarriage, employment or any other cause,” and $500 per month thereafter until remarriage or further order of the court. We held that the award of alimony constituted alimony in gross for the first five years following entry of the divorce judgment but, because of the remarriage provision, became modifiable periodic alimony thereafter. A similar holding is warranted in the instant case.
The 1980 award of alimony constitutes nonmodifiable alimony in gross for the first five years following entry of the divorce judgment and plaintiff may pursue an action at law to collect any arrearage as to that amount. Plaintiff may not, in this action, recover any arrearage in alimony payments due after the award became contingent on her marital status. Since defendant has no defense to plaintiff’s right to recover the award of alimony in gross, we affirm the judgment in favor of plaintiff to that extent. We remand, however, for modification of the judgment, which must be limited to the amount of arrearage accumulated during the first five years after entry of the divorce judgment. We do not retain jurisdiction. Further claims must be presented to Judge Gage in the divorce action.
Defendant also challenges the award of $1,000 in attorney fees. Although plaintiff requested attorney fees as though this were a divorce action, we have no transcript of any evidentiary hearing establishing plaintiff’s need. Zecchin v Zecchin, 149 Mich App 723, 732; 386 NW2d 652 (1986). Assuming, without deciding, that attorney fees are available, we reverse the award in this case on the basis of inadequate proofs.
Affirmed in part, reversed in part, and remanded. | [
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Per Curiam.
This appeal involves consideration of the method adopted by the Tax Tribunal to assess the value of two low-income, government-subsidized housing projects for property tax purposes.
Petitioners, Pinelake Housing Cooperative and Forest Hills Housing Cooperative, are both located in the City of Ann Arbor, which is the respondent in this matter. Pinelake contests its tax assessments for 1981, 1982, and 1983. Forest Hills disputes its assessments for 1981, 1982, 1983, and 1984. Respondent contends that the true cash value of the projects is roughly three times the amount which the petitioners assert is the proper valuation for each of the tax years in question.
Pinelake and Forest Hills received separate hearings before a Tax Tribunal hearing officer. With the exceptions of the values derived, the hearings were virtually identical. The attorneys, the experts, and their propounded theories were the same. By agreement of all of the parties, the hearing officer authored a single proposed judgment. From that point, the cases have been consolidated.
i
Pinelake is a federally-regulated low-income housing cooperative, consisting of 129 units. When built in 1975, the original mortgage balance was $2,871,900, payable at seven percent interest over forty years, and represented one hundred percent of the property’s cost. The mortgage was guaranteed by the federal government through the Department of Housing and Urban Development pursuant to §236 of the National Housing Act of 1959, as amended, 12 USC 1715z-l. The most significant aspect of hud’s participation in the project is an "interest-reduction” subsidy, which pays all except one percent of the interest due on the mortgage note.
The cooperative association contracted for the construction of the complex and owns the buildings and the land. Residents gained the right to possess units by purchasing membership certificates. To qualify as a member, an individual’s income must be below limits set by hud.
A membership certificate conveys some indicia of ownership to the occupants. The conveyed interest is analogous to owning a share in a corporation; a member does not own the specific unit in which he lives, but rather an intangible portion of the whole.
When a member leaves the co-op, he may transfer his interest to another person who meets the income requirement and other requirements of the co-op. However, members are not free to set their own price. Rather, the bylaws of the cooperative establish the "transfer value.” Originally, the transfer value was to have increased annually at a fixed rate after the fourth year of the project. However, sometime between 1979 and 1981, hud granted Pinelake’s request to freeze the transfer value at a range between $688 and $820, depending on apartment size.
Another indicium of ownership is that the members gain some measure of control in the management of the cooperative. They can vote for directors and can run for such offices. The board of directors makes management and administrative decisions within the limits of the regulatory agreement with hud. However, control ultimately lies in the hands of hud, which reviews the co-op’s budget line by line and has power to reject any portion of it, to increase the percentage of income which a member must pay as monthly "carrying charges” (what the members pay instead of rent), to freeze the transfer value of a membership, and to require the co-op to make increased payments to reserves and so forth.
The carrying charges are applied to the co-op’s operating expenses and the mortgage. The carrying charges are adjusted annually and are set at a level sufficient to cover the operating expenses and the co-op’s obligation on the one percent mortgage. The charges are not designed to generate any "profit.” If expenses increase or decrease, the carrying charges are adjusted in the following year’s budget.
Despite the substantial federal subsidy, Pinelake is not without problems. As previously mentioned, the transfer value of its memberships was frozen sometime between 1979 and 1981 at the request of the cooperative at a range of between $688 and $820. The freeze was necessitated by the fact that Pinelake was having trouble finding low-income individuals to fill vacancies who had sufficient cash on hand to pay both the membership fee (transfer value) and the first month’s carrying charge. Together . these amounts were over $1,000 in all cases. In 1980, Pinelake lost between two percent and three percent of its potential income due to vacancies. In 1981, vacancy loss rose to 9.5 percent. In 1982, vacancy loss represented 11.8 percent. Pinelake also experienced collection problems during those years. However, collection losses were smaller than vacancy losses.
Verna Spath, the co-op’s president, testified that "very, very frequently” the residents do not give the required sixty-days notice of their intention to leave but instead simply stop paying the monthly carrying charge. By the time the residents move, the past due carrying charges plus the amount charged for damage to the unit "almost always” exceeds the transfer value of the membership.
Brady Caputo, the co-op’s manager, testified that it costs an average of $1,500 to rehabilitate a unit after a member moves out. He also testified that, since the project was nine years old, it was beginning to require large maintenance expenditures. The tile floor and carpeting in the units needed to be replaced. The porches and sidewalks were in need of repair. The exterior needed repainting. Refrigerators were beginning to wear out.
Laurence Allen, petitioners’ appraiser, testified that Pinelake was "generally in poor condition.”
Steven Breshgold, the co-op’s accountant, testified that the co-op was one month behind in paying bills.
ii
Forest Hills is a similar but larger (306 units) cooperative housing project, subject to the same regulations. It was developed in five phases. The first occupants moved in in 1971. The original amount of the five mortgages totaled $6,477,800.
The makeup of Forest Hills’ member population is somewhat different than that of Pinelake’s. While eighty percent of the units at Pinelake were occupied by single-parent families, Forest Hills has a "high rate of couple occupants.” Laurence Allen, petitioners’ appraiser, testified that he considered Forest Hills to be superior to Pinelake in both location and "property.”
Unlike Pinelake, at the time of the hearing, Forest Hills had not frozen the transfer value of its membership. However, Forest Hills permits new members to initially pay only fifty percent of the membership fee, with the balance being paid off in installments. Even so, Forest Hills found that the high initial cash payment was burdensome and was in the process of seeking approval from hud to freeze the transfer value. Forest Hills’ vacancy losses for both 1980 and 1981 were less than one percent. Vacancy losses were 5.9 percent for 1982 and 4.5 percent for 1983.
Terry Lewis, Forest Hills’ president, testified that the co-op repurchases the membership when a resident leaves. She testified that repurchases were necessary because the co-op had a one-third annual turnover rate. She did not believe memberships would be marketable if new members were not guaranteed a buyer at resale.
Like Pinelake, Forest Hills is undergoing a period where extensive repairs are becoming necessary due to the increased age of the project. There was no testimony that Forest Hills was behind in paying its creditors. However, there was testimony that, because of the increased vacancy loss problem, the co-op did have to hold off on a preventa tive maintenance program and the replacement of appliances.
hi
At the hearings before the Tax Tribunal hearing officer, both petitioners’ appraiser and respondent’s appraiser testified that valuation of the subject properties was made more difficult because, except for foreclosures, they were unaware of any such property which had ever been sold.
Laurence Allen, petitioners’ appraiser, presented two approaches. In the first, which he called the "cooperative approach,” Allen theorized that the value of a § 236 cooperative is equal to the value of the outstanding mortgage plus the total value of the membership fees. Adding these two amounts together, Allen concluded that the properties’ true cash values for the years in dispute were:
YEAR PINELAKE FOREST HILLS
1981 $ 914,732 $2,140,000
1982 780,539 1.920.000
1983 1,023,203 2.440.000
1984 2.550.000
The second approach Allen employed was the "Congresshills” approach. Using the actual income and actual expense experience of the projects, Allen calculated net income for each property, which he multiplied by overall capitalization rates of 13.38 percent, 14.46 percent, 11.66 percent, and 11.66 percent for 1981 to 1984 respectively. To the overall capitalization rate, Allen added a tax capitalization rate to arrive at total capitalization rates of 16.63 percent, 17.56 percent, 14.65 percent, and 14.81 percent, for 1981 to 1984, respectively. Allen testified that the Congresshills approach indicated the following values:
YEAR PINELAKE FOREST HILLS
1981 $1,070,000 $1,275,000
1982 880,000 2.065.000
1983 1,260,000 2.545.000
1984 2.770.000
Allen’s final conclusion was that the cooperative approach more accurately represented the true cash values of the subject properties than did the Congresshills approach.
Respondent’s appraiser, David Geragosian, presented a cost approach and three variations of the income approach. In the cost approach, Geragosian used the Marshall Valuation Service Manual and determined that the value for Pinelake under a cost approach was $3,029,200 and the value for Forest Hills was $8,630,600. In Geragosian’s opin ion, the regulatory agreement did not affect economic obsolescence and the value under the cost approach would be the same whether or not the regulatory agreement was in place.
Because of the lack of sales of comparable properties, Geragosian was unable to provide a traditional market approach.
Geragosian relied principally upon the income approach, of which he presented three variants. However, Geragosian did not use actual income and actual expenses in his computations, but rather used "normalized” figures. The "normalized” income and expense figures were used in all three variants of the income approach.
In Geragosian’s first variation (Variant i), Geragosian included the interest reduction subsidy as part of petitioners’ income. For total capitalization rates, Geragosian used 15.30 percent, 16.08 percent, and 14.95 percent for tax years 1981 to 1983. Under this approach, Geragosian concluded that the true cash values for the years in question were:
YEAR PINELAKE FOREST HILLS
1981 $2,136,000 $4,660,500
1982 2,068,000 4,172,400
1983 2,264,000 5,051,000
In Variant n, Geragosian used the same net income figures, i.e., he again included as income the interest-reduction subsidy. However, he employed a different total capitalization rate. For Pinelake he used 10.7 percent and for Forest Hills he used 10.99 percent. He applied the same rate to all years in dispute. Using this approach, Geragosian gave only a range of values for the tax years 1981 to 1983:
PINELAKE FOREST HILLS
$3,050,000 to $6,488,200 to
$3,160,000 $6,871,000.
Geragosian acknowledged that his Variant i and Variant n valued the federal subsidy. However, he asserted that Variant m did not value the subsidy. In that approach, Geragosian deducted the interest-reduction subsidy from the income amount. However, Geragosian used much lower total capitalization rates: 6.134 percent, 6.024 percent, 6.187 percent, and 6.187 percent for tax years 1981 to 1984. Although it is unclear, it appears that Geragosian used a mortgage-equity formula to derive these capitalization rates because he wrote in his appraisals that the rate was based on a one percent mortgage, forty-year term, zero down payment, and one hundred percent financing. See Northwood Apartments v Royal Oak, 98 Mich App 721; 296 NW2d 639 (1980). Under this approach, Geragosian gave the following conclusions of value:
YEAR PINELAKE FOREST HILLS
1981 $3,030,000 $6,562,200
1982 3.183.000 5,987,900
1983 3.196.000 7,196,800
1984 7,433,400
Geragosian testified that he did not use the Congresshills approach and that he didn’t "know what the Court of Appeals is purporting to do in determining value with that approach.”
Geragosian’s final conclusion was that the cost method was a meaningful approach and a strong indicator of value, but that Variant iii most accurately reflected true cash value.
The hearing officer rejected the appraisal submitted by the petitioners and adopted Geragosian’s final conclusions of value. With one minor exception not relevant here, the Tax Tribunal adopted the proposed judgment of the hearing officer.
IV
Petitioners claim on appeal that the Tax Tribunal committed an error of law or adopted a wrong principle by accepting respondent’s method of valuation. Petitioners also claim that the Tax Tribunal erred by rejecting their valuation approach.
V
The Michigan Tax Tribunal has exclusive and original jurisdiction to review final decisions relating to assessments under the property tax laws. MCL 205.731; MSA 7.650(31). A proceeding before the tribunal is independent and de novo. Consolidated Aluminum Corp v Richmond Twp, 88 Mich App 229, 232-233; 276 NW2d 566 (1979); MCL 205.737(1); MSA 7.650(37X1). The tribunal may not simply accept a respondent’s assessment, but must make its own findings of fact and arrive at a legally supportable conclusion of true cash value. Consolidated Aluminum Corp, supra.
This Court’s standard of review of tribunal decisions is set forth in Const 1963, art 6, § 28:
All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decision, findings, rulings, and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record. Findings of fact in workmen’s compensation proceedings shall be conclusive in the absence of fraud unless otherwise provided by law.
In the absence of fraud, error of law or the adoption of wrong principles, no appeal may be taken to any court from any final agency provided for the administration of property tax laws from any decisions relating to valuation or allocation.
The Legislature is charged with the duty of providing a uniform system of real property taxation based on assessment of true cash value. Const 1963, art 9, § 3. "Cash value” means "usual selling price,” meaning the price which could be obtained at a private, not forced sale. MCL 211.27; MSA 7.27. "True cash value” and "fair market value” are synonymous. CAF Investment Co v State Tax Comm, 392 Mich 442, 450; 221 NW2d 588 (1974).
Generally, there are three accepted methods of valuation: the capitalization-of-income approach, the cost-less-depreciation approach, and the market approach. These approaches are briefly described in Antisdale v Galesburg, 420 Mich 265, 276-277, n 1; 362 NW2d 632 (1984). It is the duty of the Tax Tribunal to accept the approach which provides the most accurate valuation under the circumstances of each case. 420 Mich 277. Any method for determining true cash value which is recognized and reasonably related to the fair market value of the property is an acceptable indication of true cash value. Presque Isle Harbor Water Co v Presque Isle Twp, 130 Mich App 182, 190; 344 NW2d 285 (1983).
Regardless of the valuation method employed, the value determination must represent the amount for which the subject property would sell. 130 Mich App 192-194; Safran Printing Co v Detroit, 88 Mich App 376; 276 NW2d 602 (1979), lv den 411 Mich 880 (1981). In other words, the valuation must be based on current market conditions. CAF Investment Co, supra, p 455. If the property is burdened by some restriction, such as a below-market long-term lease, CAF Investment, supra, or a deed restriction, Lochmoor Club v Grosse Pointe Woods, 3 Mich App 524; 143 NW2d 177 (1966), the impaired value of the property cannot be ignored and the property must be valued as restricted. More specifically, federal restrictions on rental income must be considered in determining the true cash value of the property. Congresshills Apartments v Ypsilanti Twp, 102 Mich App 668; 302 NW2d 274 (1981) (Congresshills I). Also, when considering subsidized housing, the subsidy itself may not be considered as part of the real property and the subsidy value may not be included as part of the property value. Congress-hills Apartments v Ypsilanti Twp (After Remand), 128 Mich App 279; 341 NW2d 121 (1983) (Congresshills II).
Three reported appellate decisions which have reviewed the valuation of § 236 properties, Congresshills I, supra, Congresshills II, supra, and Antisdale, supra. All three cases deal with §236 "limited dividend” projects not §236 cooperatives. Nevertheless, these cases are helpful in understanding the characteristics of federally subsidized properties and the applicable valuation principles. Also, the cases are relevant because the appraisal which the Tax Tribunal accepted treated the subject properties as rental properties, disregarding their cooperative form.
In Antisdale, supra, pp 283-284, the Supreme Court explained that a cost approach to valuation is generally an inappropriate method to value low-income, government-subsidized housing projects:
The Tax Tribunal seemed startled at the possibility that the subject property might be worth less than 70 percent of the principal balance of its mortgage. Together, petitioners and the federal government spent $1,718,325, to build the complex on the subject property. Using the cost of reproduction less depreciation method, respondent’s as sessor valued the property at over $1,700,000. Nevertheless, if the market method to valuation is used, and the non-market mortgage is discounted, the property might reflect a value even less than half its cost immediately upon completion. Upon further analysis, however, such a result is not improbable.
Without the federally subsidized mortgage such properties would be nearly worthless. Evidence showed that such projects are typically constructed in areas where rents, if at market rates, would be beyond the financial capability of the local population to afford. Furthermore, evidence was introduced which showed that the quality of construction in such projects was greater than usually seen in non-federally subsidized projects, thus increasing their cost, but adding little value which would command greater rents if the market could bear them. As stated in Meadowlanes Limited Dividend Housing Ass’n, [unpublished opinion of the Tax Tribunal, decided January 6, 1984 (Docket No. 55933)]:
"Without the federal subsidy, neither [the owner] nor any other prudent investor could have been induced to invest in the project. The cost to build these units would require rental income far in excess of what could be obtained in the marketplace (and still generate sufficient profit so as to be economically viable). In fact, without the subsidy, debt service would be so high, there would be substantial negative cash flow which could reduce the tax shelter benefit to a point where the shelter was no longer an incentive to purchase.”
Even the most desirable structure, if, for example, placed in an undesirable location, may be immediately worth much less than its cost to construct. Other factors can lead to the same result.
That is not to say that these subsidized properties, nearly guaranteed by federal rent ceilings to generate no income, have no value. The market approach, when properly used, demonstrates that there is a value to these properties, although considerably less than their cost to construct. [420 Mich 283-284.]
In Congresshills I, this Court held that when the income approach is used to value § 236 limited-dividend property, the computation should not be based on hypothetical rental income and expenses or market averages, but rather upon actual income and actual expenses. In Congresshills II, supra, p 286, this Court reviewed the six percent capitalization rate which had been employed and held that it was absurdly low and erroneous as a matter of law, suggesting that a market capitalization rate should have been employed. By requiring that actual income and actual expenses be used, the Congresshills approach values the property’s actual income experience rather than the property’s potential capacity for earning income, the focus of more traditional income approaches.
The appraisers of both parties have testified that the Congresshills approach does not accurately reflect value. Respondent’s appraiser did not really explain his objection, but simply stated that he did not understand what the approach was meant to value. Petitioners’ appraiser’s chief complaint was that the Congresshills approach fails to recognize the effect of the government regulation which prohibits § 236 cooperatives from generating cash flow, i.e., income above the amount necessary to meet the obligations of such property.
The monthly carrying charges which residents of the subject properties pay are adjusted once a year during a budgetary process in which estimates of the succeeding year’s income and expenses are made. The carrying charges for the next year are then based on this estimate. No allowance for "profit” is figured into the charges. The fact that revenues are tied to expenses in this manner and the fact that "profit” is not sought must be considered in conjunction with the concept of net income.
To determine net income under the income approach, operating expenses are subtracted from gross income. However, mortgage payments are not considered to be an operating expense, but rather an expense of financing the property. Because the annual budget process makes gross income a function of expenses so that the project generates no cash flow, the result is that when actual expenses are subtracted from actual income, all that is basically left are the annual payments on the mortgage. The concern is that the capitalization of the total annual mortgage payment has no relationship to the property’s value.
However, it is our opinion that such a result nevertheless represents the values that such properties possess. Such projects, when solvent, are able to generate sufficient income to retire the mortgage debt at the one percent effective rate. The ability of a property to generate sufficient income to pay off its underlying financing is value. The fact that "net income” under the Congress-hills approach represents little more than the annual debt service is simply an expression of our belief that under the regulatory restrictions such projects have little other value. _
VI
We conclude that the Tax Tribunal did not err as a matter of law by adopting a method of appraisal which analogizes the subject properties to income-producing properties and by employing an income approach. There was substantial evidence that the membership fees were in essence nothing more than large security deposits. It was shown that memberships were not transferred to third parties by the members but were merely reclaimed by the cooperatives when residents left.
However, for the following reasons, we conclude that the Tax Tribunal committed several errors of law by accepting respondent’s conclusions of true cash value;
(1) The valuation approach which thé Tax Tribunal accepted did not use actual income and actual expenses as required by Congresshills I.
(2) The valuation approach which the Tax Tribunal accepted used a total capitalization rate of approximately six percent, which this Court held in Congresshills II, supra, p 286, was absurdly low and erroneous as a matter of law. Use of such a low capitalization rate is at least equally absurd given the facts of the instant case. Respondent’s own appraiser wrote in both of his appraisals:
In a federally subsidized, nonprofit cooperative there is no cash flow dividend (prohibited by the ■ agreement). There is no tax shelter to the nonprofit cooperative association, and a very uncertain and unknown possibility of a capital gain at the end of the regulated holding period (40 year mortgage).
Given the total lack of attractiveness of the prop erties, it cannot be seriously argued that a hypothetical investor would be willing to purchase either property at a price which assumes such a low capitalization rate, especially during tax years when the prevailing rate of interest was extremely high. A six percent capitalization rate is totally at odds with the uncontroverted premise that the subject properties lack the ability to transfer any substantial benefit of ownership.
(3) Respondent’s appraisals, upon which the Tax Tribunal relied, are internally inconsistent on their face and unreliable as a matter of law. Geragosian testified that Variant I and Variant n valued the subsidy while Variant iii excluded the subsidy’s value. Yet Variant m generated values substantially the same as Variant n and Variant i produced values which were substantially lower than Variant iii. It is not logical that the interest-reduction subsidy, which generated income equal to thirty percent to thirty-eight percent of the income which the projects generated from carrying charges (depending upon the project and the year) had either no value or a negative value.
(4) Contrary to Geragosian’s testimony, Variant iii did value the subsidy. While Geragosian subtracted the amount of the interest-reduction subsidy from the income amount in Variant iii, he offset the subtraction by lowering the capitalization rate. Geragosian justified selection of a lower capitalization rate on the basis that this approach relied upon an analysis which assumed a one percent mortgage, which was the "actual mortgage of the subject properties.” However, the one percent mortgage is the subsidy. To derive a capitalization rate based on the assumption of a one percent mortgage is to value the subsidy. The interest subsidy is an intangible asset and is not a proper subject to be taxed under Michigan’s property tax laws. Congresshills II, supra, p 283.
VII
As to petitioners’ argument that the Tax Tribunal erred as a matter of law in rejecting the appraisals of their expert, this Court’s standard of review does not permit it to hold that the Tax Tribunal committed an error of law by not accepting petitioners’ appraisals. Other methods which have not been presented here might better reflect true cash value. It is the duty of the Tax Tribunal to make its own finding of true cash value. MCL 205.737(1); MSA 7.650(37X1); Consolidated Aluminum Corp, supra, pp 232-233.
VIII
Having considered the arguments of the parties, we note that our decision was not reached without concern. Philosophically, we adhere to the belief that everyone should pay their fair share. We realize that the possibility exists that this decision might result in the petitioners’ paying less in property taxes than necessary to supply the services which they require. The fact that the federal government subsidizes such projects does not seem to be a sufficient reason to require the cities and townships in which such projects are located to bestow an additional subsidy in the form of reduced property taxes.
However, our conclusion is compelled because under our ad valorem system of taxation, a property owner’s level of taxes is determined by the property’s fair market value. The market value of § 236 properties is severely impaired because the federal government restricts the rents or carrying charges which may be charged, permits only low-income tenants to occupy the units, and builds such projects in areas which are not optimally attractive. The value of § 236 limited dividend projects is specifically impaired for the additional reason that the federal government limits the return which the owner of such projects may realize. In short, § 236 property is designed to keep revenues (rents and carrying charges) low, not to maximize profitability. Thus, a serious question arises whether market principles of valuation are appropriate in situations where, as here, federally-regulated properties operate largely outside the forces of the marketplace. However, the solution is best left to the Legislature and we abide by what we perceive to be the current state of the law.
Reversed and remanded for further proceedings consistent with this opinion.
To determine the total value of the membership fees, Allen simply added together the transfer value of each unit. For Pinelake the aggregate value of the membership fees was $97,692 for each year in dispute. For Forest Hills, values were $292,940, $325,090, $373,770, and $442,450 for tax years 1981 through 1984 respectively.
To determine the value of the mortgage of each property, Allen assumed a twenty-year holding period and discounted the principal balance on each tax day to present value, using as a discount rate the yield rates for hud mortgages as of December of each year. The discount rates that were used were 13.08 percent, 15.45 percent, 11.80 percent, and 11.51 percent for the tax years 1981 through 1984 respectively. Under this technique, Allen determined that the value of Pinelake’s outstanding mortgage balance for the 1981 to 1983 tax years was $914,732, $780,539, and $1,023,203. For Forest Hills, the value of the outstanding mortgage balance for 1981 to 1984 was determined to be $1,817,921, $1,565,282, $2,036,826, and $2,099,874.
The Congresshills’ approach is the product of this Court’s decisions in Congresshills Apartments v Ypsilanti Twp, 102 Mich App 668; 302 NW2d 274 (1981), and Congresshills Apartments v Ypsilanti Twp (After Remand), 128 Mich App 279; 341 NW2d 121 (1983).
The net income was determined without a deduction for property tax expense, which is typically considered to be an operating expense. The property tax expense is not included in the computation because that amount is the subject of the instant dispute, and obviously cannot be determined until this litigation is finally resolved. To offset the artificially high income amount, a tax capitalization rate is added to the overall capitalization rate.
For Pinelake, Geragosian determined actual income for 1981 to 1983 was $540,776, $527,044, and $571,581, respectively. Because he "felt” the income for 1982 "did not fit in,” Geragosian "normalized” that year’s income by substituting for it the average of the incomes of that year, the preceding year, and the following year, a process which resulted in an adjusted income figure of $556,178 for 1982. Geragosian did not adjust the 1981 and 1983 figures downward to offset the upward adjustment of the 1982 figure.
Geragosian also "normalized” Pinelake’s expenses for 1982 downward from $246,276 to $223,575.
In adjusting expenses for Forest Hills, Geragosian used a slightly different method. Rather than comparing the total yearly expenses, as he had done in his Pinelake appraisal, Geragosian compared Forest Hills’ individual accounts. For example, in 1982 Forest Hills spent $56,931 for appliances. In 1980, the project had spent only $30,894. Because he felt the 1980 experience was "more normal,” Geragosian substituted the lower 1980 figure for the 1982 figure. Geragosian also "normalized” other expense accounts with downward adjustments of approximately $70,000.
The effect of each adjustment was to increase Geragosian’s final appraisals of true cash value.
Geragosian derived the above capitalization rates from a table, the source of which he described only as "data from life insurance companies.” It was Geragosian’s opinion that these rates were based on "actual experience,” i.e., "the consensus of 20 life insurance companies accounting for 68% of non-farm mortgages held by U.S. life insurance companies.”
Because of time restraints, Geragosian did not present Variant i in his appraisal of Forest Hills for the 1984 tax year.
Geragosian did not explain how he arrived at these capitalization rates other than to write in his appraisals that they were "based on a 7 % mortgage interest rate (actual) with an average amortization period remaining” of thirty-four years for Pinelake and thirty years for Forest Hills.
Again, because of time restraints, Geragosian did not present this approach in his appraisal of Forest Hills for the 1984 tax year.
See also cases cited in footnote 13.
Limited dividend property is investor-owned and bought and sold primarily, if not solely, as tax shelters. However, investors in such projects are restricted from withdrawing more than six percent of their original investment per year from the project’s revenues and then only if the funds are available and approval is gained from hud. Hence the name, "limited dividend.”
Note that there are other necessary (but nonoperating) expenses besides the mortgage payment (mainly payments to reserves) that will be derived through application of the Congresshills approach. However, these expenses are relatively minor. While the appraisers for the parties disagreed below as to how payments and withdrawals from reserves should be treated, the issue has not been raised on appeal.
The net income derived through use of the Congresshills approach will vary slightly from year to year from the exact amount of the yearly mortgage payments. However, the variation is due in large part to the inability to precisely forecast the following year’s income and expenses during the budgeting process when the annual carrying charge schedules are established. Any error in forecasting would appear to be compensated for in the succeeding year’s budget.
Recently, a panel of this Court released Meadowlanes Limited Dividend Housing Ass’n v City of Holland, 156 Mich App 238; 401 NW2d 620 (1986). This decision suggested that the interest subsidy should be considered as part of the value of a limited dividend project. This suggestion was recently criticized by another panel of this Court in Tradewinds East Associates, LDHA v Hampton Charter Twp, 159 Mich App 77, 88, n 1; — NW2d — (1987). As stated infra, n 15, in the instant case, the parties have assumed in their arguments that the interest subsidy should not be valued.
For example, if the interest subsidy were subtracted from the income variable and if the income and expense figures had not been "normalized,” respondent’s Variant i would appear at this juncture to be an adequate representation of true cash value.
The "market value” for property tax purposes is further reduced by our decision in Congresshills II, supra, that the interest-reduction subsidy should not be considered as income to the project and should not form a part of the property’s taxable value. Neither party has asked this Court to reconsider that holding, and neither has briefed the issue.
MCL 125.1415a; MSA 16.114(15a), which permits federally regu- ‘ lated housing projects to pay ten percent of annual shelter rents as an annual service charge for public services in lieu of all taxes, is inadequate. A municipality, as respondent has here, may opt not to accept the service charge in lieu of property taxes. More importantly, the service charge may not exceed "the taxes that would be paid but for this act.” Thus, there is still a need to obtain appraisals which purport to determine "market value.” Moreover, there is evidence in the instant case which suggests that many times the "true cash value” of such property would be less than the ten percent service charge, rendering the statute without effect. | [
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Per Curiam.
Defendant Eugene S. Bonds appeals by leave granted from a March 12, 1986, order of the Detroit Recorder’s Court denying his motion to quash the information following his bindover on charges of felony murder, MCL 750.316; MSA 28.548, and burning a dwelling house, MCL 750.72; MSA 28.267. We affirm.
On September 30, 1985, defendant’s sister died in a fire which burned another sister’s house on Lindsey in the City of Detroit. At the preliminary hearing, an arson investigator testified that the house burned because gasoline was ignited by the pilot light on a space heater. Defendant made a statement indicating that he drove his sister to the house, that he kicked in the front door to make it look like a breaking and entering and carried gasoline inside, and that his sister poured gasoline throughout the house which ignited, resulting in his sister’s death.
We review the decision of a magistrate to bind a defendant over for abuse of discretion, People v Gentry, 138 Mich App 225, 232; 360 NW2d 863 (1984).
In People v Aaron, 409 Mich 672, 728-729; 299 NW2d 304 (1980), the Supreme Court examined the felony-murder doctrine, and concluded:
Accordingly, we hold today that malice is the intention to kill, the intention to do great bodily harm, or the wanton and willful disregard of the likelihood that the natural tendency of defendant’s behavior is to cause death or great bodily harm. We further hold that malice is an essential element of any murder, as that term is judicially defined, whether the murder occurs in the course of a felony or otherwise. The facts and circumstances involved in the perpetration of a felony may evidence an intent to kill, an intent to cause great bodily harm, or a wanton and willful disregard of the likelihood that the natural tendency of defendant’s behavior is to cause death or great bodily harm; however, the conclusion must be left to the jury to infer from all the evidence. Otherwise, "juries might be required to find the fact of malice where they were satisfied from the whole evidence it did not exist”. Maher v People. [10 Mich 212 (1862)] [Emphasis added.]
A jury may properly infer malice from evidence that a defendant intentionally set in motion a force likely to cause death or great bodily harm. Aaron, supra, p 729. While a jury may consider the nature of the underlying felony and the circumstances surrounding its commission, it may not find malice from the mens rea required to commit the underlying felony, Aaron, supra, p 730. In many situations the commission of a fel ony, especially one involving violence or the use of force, will indicate an intent to kill, an intent to cause great bodily harm, or wanton and wilful disregard of the likelihood that the natural tendency of defendant’s behavior is to cause death or great bodily harm, Aaron, supra, p 730.
We conclude that the magistrate did not abuse his discretion when he bound defendant over on the felony-murder charge. In Aaron, the Supreme Court made it clear that some intent other than the mere intent to participate in a felony must be shown. The jury could infer that defendant’s actions in driving his sister to the premises to be burned and carrying the gasoline inside evinced a wilful and wanton disregard for human life, and could conclude that, by assisting in setting a house on fire, defendant set in motion a force likely to cause death or serious bodily harm. We conclude that the trial court did not abuse its discretion in denying defendant’s motion to quash the information relative to felony murder. See People v Anderson, 147 Mich App 789, 792-793; 383 NW2d 186 (1985).
Affirmed- | [
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Shepherd, J.
This case involves a declaratory action in Wayne County seeking insurance coverage for a lawsuit in Oakland County. Plaintiffs appeal from a grant of summary disposition in favor of defendant. We affirm.
On February 11, 1981, plaintiffs Edward M. Freeman and Michael H. Henry, both minors, were apparently passengers on a snowmobile driven by Eric Button, also a minor, when their snowmobile was struck by a second snowmobile driven by Dean Teschendorf, another minor. Freeman sustained multiple fractures to his right femur, resulting in growth stoppage and deformity of the leg. Henry ultimately had his right leg amputated above the knee. According to deposition testimony, the snowmobile driven by Dean Teschendorf was owned by his brother-in-law, who had left it for storage and did not give permission for its use.
Cleo Teschendorf, Dean’s father, had an automobile insurance policy from defendant covering a 1974 Chrysler New Yorker. Plaintiffs sued Cleo and Dean Teschendorf in Oakland Circuit Court on some unspecified date. According to plaintiffs’ complaint, the instant defendant repeatedly refused to assume the defense of that suit, asserting no liability coverage for a snowmobile. The Teschendorfs apparently engaged their own counsel. According to plaintiffs’ brief, Edward Freeman received a mediation award of $50,000 against Dean Teschendorf, which is apparently unsatisfied. Also according to plaintiffs’ brief, Michael Henry’s claim was "discontinued without prejudice.”
The instant action was filed in Wayne Circuit Court on June 28, 1985, seeking a declaratory judgment that defendant provide liability coverage on the Teschendorf policy. Plaintiffs moved on September 24, 1985, for summary disposition on the liability issue, alleging defendant’s failure to state a valid defense and asserting that no genuine issue of material fact existed. Defendant also moved for summary disposition pursuant to MCR 2.116(C)(10), no genuine issue of material fact, and a hearing was held.
The Wayne Circuit Court granted summary disposition for defendant, concluding that a snowmo bile was not a motor vehicle within the meaning of the Michigan no-fault act. The court relied on Schuster v Allstate Ins Co, 146 Mich App 578; 381 NW2d 773 (1985), and McDaniel v Allstate Ins Co, 145 Mich App 603; 378 NW2d 488 (1985), both cases holding that injuries arising out of the operation, use, or maintenance of snowmobiles are not compensable under Michigan no-fault policies.
Plaintiffs apparently concede that the so-called no-fault act, Chapter 31 of the Insurance Code, MCL 500.3101 et seq.; MSA 24.13101 et seq., is not applicable to their claim, as they are not seeking no-fault benefits but are pursuing a tort claim. Although difficult to follow, plaintiffs’ argument appears to be that defendant’s alleged liability under the policy arises instead from the requirements of Chapter 30 of the Insurance Code, specifically MCL 500.3009; MSA 24.13009 (§ 3009).
The Legislature has abolished certain aspects of tort liability for accidents involving motor vehicles except in specific instances, such as those involving death, serious impairment of body function, or permanent serious disfigurement. MCL 500.3135; MSA 24.13135. The snowmobiles involved in this accident do not meet the definition of motor vehicles under the act, MCL 500.3101(2)(c); MSA 24.13101(2)(c) (§ 3101[2][c]). See Schuster, supra pp 581-582, and McDaniel, supra, pp 607-609. Consequently, we agree with plaintiffs that the no-fault act is irrelevant to their tort claim against the Teschendorfs. It seems clear that the Teschendorfs face the possibility of tort liability for their allegedly negligent conduct under traditional tort principles. We cannot agree, however, that § 3009 requires insurance coverage by defendant simply because the Teschendorfs may be liable.
Section 3009 provides in part:
(1) An automobile liability or motor vehicle liability policy insuring against loss resulting from liability imposed by law for property damage, bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall not be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless such liability coverage as is provided therein is subject to a limit, exclusive of interest and costs, of not less than $20,000.00 because of bodily injury to or death of 1 person in any one accident, and, subject to said limit for 1 person, to a limit of not less than $40,000.00 because of bodily injury to or death of 2 or more persons in any one accident, and to a limit of not less than $10,000.00 because of injury to or destruction of property of others in any accident.
Plaintiffs insist that the term "motor vehicle” in § 3009 is broader than the definition in the no-fault act, § 3101(2)(c). Plaintiffs cite MCL 500.3004; MSA 24.13004 (§ 3004) and the motor vehicle code, MCL 257.33; MSA 9.1833, to support their contention that a snowmobile is a "motor vehicle” for purposes of applying § 3009.
We initially note that § 3009 makes no reference to MCL 257.33; MSA 9.1833. Section 3004 does not define "motor vehicle,” but lists several sorts of liability insurance policies which may be issued and requires that they contain provisions relating to bankruptcy and notice. Sections 3009 and 3004 appear to allow the issuance of policies covering liability for the use, operation, or maintenance of snowmobiles. Assuming for the sake of argument that the meaning of "motor vehicle” in § 3009 is as broad as plaintiff argues, however, § 3009 would at best require minimum coverage limits on such a policy. Nothing in § 3009, or the rest of Chapter 30 of the Insurance Code, requires coverage of snow mobiles, particularly under the instant automobile policy.
It appears that plaintiffs seek to require all no-fault insurers to cover snowmobiles as a matter of public policy (mistakenly assumed to be reflected in § 3009) whenever an insured takes out a no-fault policy on an automobile or other motor vehicle. Plaintiffs seem to assume that, because the Teschendorfs may have tort liability, they must also be covered by some sort of insurance for this liability. We do not believe that public policy requires potential tortfeasors to carry insurance save in narrowly defined situations, such as those covered by the no-fault act. MCL 500.3101; MSA 24.13101 requires owners or registrants of motor vehicles to maintain insurance or other security for payment of certain benefits. A snowmobile is not such a motor vehicle. Schuster, supra; McDaniel, supra. A similar provision applies to motorcycles. MCL 500.3103; MSA 24.13103. The insurance required in those instances must also conform to the requirements of § 3009 in terms of the policy limits.
The instant policy appears to meet the statutory requirements for Cleo Teschendorfs automobile, the motor vehicle covered by the policy. We are able to locate nothing in the statutes or cases cited by plaintiffs requiring Cleo Teschendorf to obtain insurance coverage on any snowmobile he may own or operate. Nothing in the policy at issue suggests that such optional coverage was offered or obtained.
We find unpersuasive plaintiffs’ reliance on Woods v Progressive Mutual Ins Co, 15 Mich App 335; 166 NW2d 613 (1968). Woods involved an accident between an automobile and a bulldozer. The plaintiffs sought recovery under an automobile policy issued to plaintiffs which covered loss from accidents involving uninsured motor vehicles. This Court held that such coverage was statutorily required to include accidents involving bulldozers. This result was accomplished by reading the motor vehicle code definitions of "motor vehicles” and "uninsured motor vehicles,” MCL 257.33; MSA 9.1833 and MCL 257.1102(d); MSA 9.2802(d), in pari materia with the applicable provision of the Insurance Code requiring uninsured motorists coverage. That provision, MCL 500.3010; MSA 24.13010, has since been repealed. Woods was decided prior to the no-fault system, which has addressed similar concerns through different solutions, so the applicability of the case is questionable. See St Bernard v Detroit Automobile Inter-Ins Exchange, 134 Mich App 178, 187-188; 350 NW2d 847 (1984), noting the limited utility of Woods. It should also be noted that at least one automobile was involved in Woods.
We sympathize with plaintiffs. The owners of snowmobiles, however, are not required by the law to carry insurance. While such may be a desirable policy, it is up to the Legislature to require such insurance as it has done for motor vehicles and motorcycles under the no-fault act.
Affirmed. | [
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Kelly, J.
Plaintiff sued to obtain realtor’s commission allegedly earned by sale of real estate. Plaintiff appeals from a directed verdict for defend.ants.
The property in question is located in Muskegon, Michigan. The history of the title shows that on December 4, 1922, legal conveyance of the premises was made to Paul J. Schlossman, Frank Hubbard Smith, Henry A. Bauknecht and Jesse G-. Bauknecht, composing the Paul J. Schlossman Company, a co-partnership.
Under date of March 9,1927, the partnership articles were amended and said amendment placed on record. This amendment provided:
“It is agreed between the parties hereto that all lands and other interests in realty now held or hereafter acquired by said partners shall be held by them as tenants in common and not as.tenants in copartnership ; that said partners shall have the interest in said land and realty set opposite their respective names, vis: Paul J. Schlossman, an undivided 1/3; Frank Hubbard Smith, an undivided 1/3; Jesse O. Bauknecht, an undivided 1/6; Henry A. Bauknecht, an undivided 1/6. It is further agreed that if for any reason this article shall be held insufficient to constitute said parties tenants in common in said land and realty, then said parties, their heirs, legal representatives and assigns shall execute such instruments of conveyance as shall be required in or der to constitute' said parties tenants in common, having undivided interests in said land and realty in the proportions above mentioned.”
As .the. original partners died, their heirs succeeded to their interest so that title was in the present defendants on July 1, 1950, when another partnership agreement was executed. This agreement followed the death of Paul J. Schlossman, and provided, in part:
“Article 11 — It is agreed between the parties hereto that all realty now held or hereafter acquired by the copartners shall be held by them as tenants in common, and not as tenants in copartnership, but that the income from said real estate shall, subject to the provisions of article 7 hereof, be deemed, treated and dealt with as copartnership assets.”
■ Article 7, above referred to, is not important to this litigation as it only provided for the respective interests of Ruth Bauknecht McNiff and Nynah Bauknecht.
Notice of dissolution of the partnership was filed on February 19, 1953, by the executor of the estate of Paul J. Schlossman. The real estate involved comprised 6 pieces of valuable commercial property, including the parcel referred to as the “Kresge building,” which is the subject of this litigation.
After receiving the notice of dissolution, the various individuals, who held as either partners or as tenants in common, agreed to partition or division of moneys obtained through sale of the property.
The defendant bank, as trustee under the will of Henry A. Bauknecht, contacted several realtors, including plaintiff, advising them that the Kresge property was. for sale.
Plaintiff was well-acquainted with the Kresge property, as he was the realtor who. consummated the long-term lease between the partnership and the Kresge Company. Thiip lease provided for a right of purchase by the Kresge Company matching the highest bona fide offer of purchase, if defendants decided to sell.
Between July 10, 1953, and March 27, 1954, several letters were exchanged between plaintiff and the hank as trustee, in regard to this property. The interest defendant hank represented was merely 1/6, and plaintiff did not, directly or indirectly, have contact with the several owners of the remaining 5/6 interest.
On January 11, 1954, plaintiff went to the Muskegon hank and informed its officers that he had an offer for $220,000. A letter was prepared by the hank, signed by plaintiff, which read:
“January 12, 1954
“The Hackley Union National Bank
“Muskegon, Michigan
“Gentlemen:
“Trustee under the will of
Henry A. Bauknecht
“In your capacity as trustee in the above-captioned estate you own a 1/6 interest in property located at 261-263 West Western avenue which is leased to S. S. Kresge Company. This property is for sale and I have procured a hid from Norman Barnes & Company, Chicago, Illinois, of $220,000 for the property. Under the terms of the S. S. Kresge lease they have the option of meeting any bid for the property within 30 days.
“On occasions in the past as well as in correspondence the Hackley Union National Bank as trustee has stated that they would not approve the payment of 2 commissions on the sale of this property. Should claims for 2 commissions arise, the real-estate brokers involved shall themselves settle the question without implicating the sellers in any way whatsoever.
“I agree to pay the expenses of an appraisal of the-land and building to be made by an appraiser, the legal services of Paul Lathan, 310 South Michigan avenue, Chicago, Illinois of $500 and such other reasonable expenses as may be incurred not to exceed, $125, enabling the sellers to net $209,000 from this, sale.
“Yours very truly,
“Westleigh H. Voth.” '
The bank notified the Kresge Company of the offer, and on February 10,1954, Kresge elected to purchase for the same amount as the offer,. namely, $220,000.'
A commission of 5% was paid by defendants to the real-estate agent who represented the Kresge Company. The record does not show what services that real-estate agent performed to consummate the $220,000 deal, but it is conceded that said realtor could not have successfully demanded and prosecuted an action against defendant bank for said commission.
In determining that a judgment of no cause for action should be entered, the Honorable Archie D. McDonald, circuit judge, filed a written opinion in which he stated: • ■
“It is the theory of the plaintiff that the interest represented by the bank as a partner was in process of liquidating the partnership and thereby had authority to bind the partners in an agreement to pay commission. ■
“It is also a theory of the plaintiff that if the foregoing principle does not apply, that the parties were engaged in a joint venture.
“The following questions therefore must be considered :
“Question 1. Was the property owned by the respective parties as tenants in common a part of the partnership being liquidated?
“Question 2. Has there been sufficient memoranda in writing to take the case out of the statute of frauds ?
“Question 1. Was the property owned by the rep-respective parties as tenants in common a part of the partnership being liquidated? It would appear from the discussion of this question that both parties are in agreement that the question of whether or not the property in question owned by the respective parties as tenants in common is part of the partnership assets is a matter of intent. Reference is made to article 3 of the articles of copartnership which'provides as follows: ' / .
“ ‘The object of this copartnership is to own,: run, conduct and operate theaters, exhibits, shows, entertainments, and other amusements'; to buy, purchase, lease, option or otherwise acquire or exchange, sell, or otherwise dispose of, mortgage or deal in real estate, lands, or buildings for the erection and establishment of theaters, halls, offices, stores and warehouses.’
“Even though the property owned by the parties at the time of the inception of the copartnership was held on the books as partnership property, it would appear that this was for the purpose of using the property to its best advantage, and the other purposes of the partnership were as set forth in'said copartnership articles. In this case we have no intervening rights of creditors, and as this court views the testimony the meeting in March, amongst other things, was, so far as property held in common was concerned, pertaining to a partition thereof. This is pretty strongly evidenced in the case of the Schlossman estate represented by Mr. Rogoski.
“A review of the entire evidence would indicate to this court that the liquidation as to the partnership involved profits or any other acquisition of assets in the operation of the copartnership. The holding of the property as tenants in common determined their interest in the partnership, hut each owned his property separately.’ As stated above, no rights of creditors are involved, and the evidence indicates a partition of their respective properties in the manner agreed upon.
“Plaintiff has presented a challenging claim to his postition, but the court is of the opinion that on all the evidence is not tenable. The court has concluded, therefore, that at the time, of sale the parties were not copartners but merely tenants in common of certain properties.
“Question 2. Has there been sufficient memoranda in writing to take the case out of the statute of frauds ?
“The court having decided that the property of the respective defendants is owned by them as tenants in common, and only part of the partnership for tax purposes, et cetera, this question would seem to be disposed of by discussion of the question already discussed. * * *
“The record does not support plaintiff’s claim that the sale of this property was a joint venture.
“There is no written authority to the bank to bind the other owners to the payment of a commission, and the bank not being a partner in the ownership of said land could not bind the others.
“A judgment of no cause for action may be entered.”
It is not necessary in this opinion to set forth the entire section of the Michigan statute of frauds (CL 1948, § 566.132 [Stat Ann 1953 Rev § 26.922]), which provides in part that any “agreement, promise or contract to pay any commission for or upon the sale of any interest in real estate” shall be void unless such agreement “be in writing and signed by the party to be charged therewith.”
We agree with the-trial court that defendants held as tenants in common; that this litigation does not sustain appellant’s conclusion that this was a joint: venture; that there was no written authority to the bank to bind the owners of thé property to the payment of a commission and that the provisions of the Michigan statute of frauds, above cited, requiring that an agreement be in writing and signed by the parties to be charged therewith in order to make it a binding agreement to pay commission for the sale of real estate, was not complied with.
Affirmed. Costs to appellees.
-Dethmers, C. J., and Carr, Smith, Black, Edwards, Voelker, and Kavanagh, JJ., concurred. | [
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Kavanagh, J.
Ollie G. Anderson died December 8,1955, at tbe age of 77, leaving a last will and testament dated August 15, 1938. She had lived all of her life in Hillsdale county. Her husband, Fred Anderson, died on December 24, 1937. They had 1 child, the contestant, Floyd Anderson, age 49 at the time of the trial. The will was prepared by attorney Paul Chase of Hillsdale, who was named executor therein, but who predeceased testatrix. Grace Hall, proponent of the will, drove testatrix to see attorney Chase about 1 week after July 4, 1938. Proponent was not present when testatrix discussed the drafting of the will with attorney Chase, nor was she present when the will was executed on August 15, 1938.
At the trial contestant admitted formal execution of the will. Contestant objected to the admission of the will to probate on the grounds that testatrix lacked mental competency or capacity to make a valid will; that the will did not represent the will or desire of said deceased, but was induced by fraud and undue influence practiced upon said deceased by the proponent of the will. The matter was brought on for trial in the circuit court of Hillsdale county and tried before a jury.
Mrs. Anderson and her husband had acquired during their lifetime a farm consisting of 107 acres in Hillsdale county, Michigan, and the usual personal property incident to the operation of a farm of this size. By the terms of the relatively simple will of testatrix, the only child, Floyd, was given the personal property and the life use of the farm. At his-death it was devised to Grace Hall, a grandniece of the decedent. In the event Grace Hall did not sur vive Floyd, then the farm was devised to 2 of Grace Hall’s children.
At the close of contestant’s proof, motion for directed verdict was made hy proponent and decision thereon reserved under the Empson act. At the close of all proofs, proponent renewed the motion for directed verdict, decision again being reserved. After verdict for contestant, motions for judgment notwithstanding the verdict and for new trial were made and denied.
So far as the question of undue influence is concerned, contestant’s only evidence on this subject is the fact that shortly after the death of testatrix’s husband, proponent, Grace Hall, frequently visited testatrix, and that proponent drove testatrix to the office of the attorney (who later drew her will) at the time of the original interview. There is no direct testimony of undue influence.
This Court has stated on several occasions that where there is no evidence of undue influence, it is erroneous to submit the question to the jury. Black-man v. Andrews, 150 Mich 322; In re Calhoun Estate, 346 Mich 227.
Undue influence exercised upon one who makes a will may become the basis for finding the will invalid, if by reason of that influence the right of the testator to freely exercise his discretion in disposing of his property has been taken away from him. Such influence is not to be presumed, but must be proved by the person seeking to have the will declared invalid. The mere fact that the opportunity existed for the exercise of such influence is not sufficient. It exists as a matter of law only when it is executed in such a fashion that the free will of the testator to dispose of his property as he sees fit is restrained in such a fashion that the will is not his own but that of the person who influences him. In re Reed’s Estate, 273 Mich 334; In re Hannan’s Estate, 315 Mich 102.
The second ground of contestant’s ease is that the decedent lacked mental competency or capacity to make a valid will. This is a far more difficult question. This Court has had this question in all of its aspects before it many times in the past. It is apparent from reading the numerous cases that have been presented to this Court that it is not unusual for contestants of a will to attempt to relive the life of the testator through testimony of neighbors, relatives, and friends to show the peculiarities of the testator: personal likes and dislikes, grief over the loss of loved ones, confusion and bewilderment on occasions with respect to business matters, attachment to pets, tendency to have as a part of his human makeup those frailties which are the lot of fallen man, such as temper, jealousy, harboring of grudges, inability to agree with daughters-in-law, and the innate desire to see his property descend only to his side of the family, rather than to that of an in-law. In the instant case, these and many other peculiarities similar in nature were the subject of testimony by relatives, friends, neighbors, and even individuals who were not acquainted with the testatrix, over the period from December, 1937, (the date of her husband’s death) to December, 1955, the time of the death of testatrix.
Not satisfied with the appendices, we have reviewed the entire record. We do not find in it any facts that substantiate the charge of incompetency or incapacity to make a valid will.
To illustrate the type of testimony we have reference to, Anna Corey, a neighbor who had known Mrs. Anderson for 40 years, stated that in 1938, after Mr. Anderson died, there was a marked change in Ollie; that there was an unusual amount of weeping on her part; that when talking with her, she noticed that there were breaks in her conversation, and that Mrs. Anderson complained of pressure pains in her head.
Rex Curey testified that Mrs. Anderson would not allow him to return a machine which had been borrowed from the Anderson farm before Fred Anderson died, claiming that the machine did not belong to her.
Earl Hoyt testified that Mrs. Anderson did not have the mental capacity to make a will. He testified that he had interviewed her with reference to increasing the insurance on her buildings and she stated that the amount carried was sufficient.
Floyd Anderson, the contestant, testified that his mother, during her lifetime, did not handle the farm business matters, and after his father’s death she referred the matters to him. He further testified that after his father’s death his mother was in a great state of grief and shock; that she stated that she had an awful pressure in her head; that on 1 occasion she became incensed because his wife had bought him an electric razor and had purchased an $800 piano; that she complained to him that she believed that her daughter-in-law was a spendthrift; that she stomped on the flowers in her daughter-in-law’s garden; that on 1 occasion she had decorated the graves of some of the farm animals previously buried; that on the death of her pet dog she had him make a casket and vault for the same; that she would constantly call him on the telephone any time of the day or night when she wanted something; that on 1 occasion she returned to the house during a minor fire, where he found her in bed with her dog, and where she thought she was perfectly safe, even though he had previously removed her from the house before calling the fife department.
All such matters have been before this Court on numerous occasions in will contest cases, and each has been held to have no bearing on the mental capacity of the deceased to make a will. Spratt v. Spratt, 76 Mich 384; Prentis v. Bates, 88 Mich 567; Page v. Beach, 134 Mich 51; Hibbard v. Baker, 141 Mich 124; Blackman v. Andrews, 150 Mich 322; Leffingwell v. Bettinghouse, 151 Mich 513; In re Murray’s Estate, 219 Mich 70; In re Littlejohn’s Estate, 239 Mich 630; In re Johnson’s Estate, 308 Mich 366; In re Calhoun Estate, 346 Mich 227.
It is significant to note that the son, Floyd Anderson, contestant, was the recipient of a deed for an acre of land, upon which land his home was built in the year 1954, at which time he did not know the contents of his mother’s will, and at a time when it was not convenient for him to allege her incompetency to make a deed.
The Court has said on several occasions that where a testator goes to an attorney and directs the drafting of a will disposing of his property in a fashion that indicates that he knows the property of which he is possessed and the objects of his bounty, and has sufficient reason for disposing of the property in the fashion he does under the will, such a testator has a mental capacity to make a will. In In re Little-john’s Estate, 239 Mich 630, 634, this Court quoted with approval from In re Ver Vaecke’s Estate, 223 Mich 419, 425, as follows :
“ ‘When a man goes to an attorney, and, without aid or suggestion, directs the provisions of his will, and furnishes specific descriptions of all the property he owns, it is a waste of time to discuss the question as to whether he was mentally competent to dispose of his property as he did.’ ”
In the instant case the record discloses that testatrix knew that her son and daughter-in-law would not be able to have any children; that she had a concern about what would happen to the property acquired by testatrix and her husband in the event subsequent to her death and that of her son Floyd the property descended to her daughter-in-law. She therefore went to a practicing attorney, and without anyone present she directed that the personal property should be left to her son outright and that he would have the use of the farm during his lifetime; that on her son’s death it would not go to the daughter-in-law and her family, but that it would go to a grandniece of testatrix or to the 2 children of the grandniece in the event the grandniece did not survive Floyd. This will speaks eloquently of the fact that she could and did provide for the object of her bounty, her son Floyd. It also indicates that she had knowledge of her property, and that considerable thought had been given to the disposition of it. Her directions to her attorney to draft a will along these lines indicate that she had the mental capacity to make a will. The fact that she waited from about the 11th of July to the 15th of August indicates that it was not something that was done on the spur of the moment and without reflection.
This Court has several times held that if a testator was competent when the will was executed, it is valid, irrespective of his temporary condition before or after. In re Cottrell’s Estate, 235 Mich 627. The following cases were cited with approval therein: Pierce v. Pierce, 38 Mich 412; In re Weber’s Estate, 201 Mich 477; In re Cochrane’s Estate, 211 Mich 370.
It should be noted that this case was tried before the effective date of new section 16 of Court Rule No 37 pertaining to hypothetical questions.
Only 1 more bit of testimony requires discussion, that is the question of the submission of a hypotheti cal question to Dr. Bunnell, psychiatric expert for contestant. The facts upon which the hypothetical question was based were not entirely supported by the evidence, and certainly the facts upon which the question was based had no tendency to show incompetency or incapacity of the testatrix at the time of the making of the will. In In re Marx’s Estate, 201 Mich 504, this Court said:
“In proceedings to contest a will, a hypothetical question, propounded to a physician, which assumed facts not testified to, and omitted material facts which had been testified about, was properly rejected by the court below.” (Syllabus 4.)
In Mapes v. Berkowitz, 304 Mich 278, this Court said:
“A hypothetical question may not embrace facts not supported by evidence.” (Syllabus 2.)
In In re Doty’s Estate, 212 Mich 346, this Court said:
“A hypothetical question as to testator’s insanity, at the date of making his will, largely made up of the substance of incompetent testimony, which covered a period subsequent to that date, held, objectionable, and the answer thereto incompetent.” (Syllabus 3.)
In the early case of Prentis v. Bates, 88 Mich 567, this Court said:
“A hypothetical question which, while mentioning some things which would possibly be evidence of some mental derangement, refers to facts which, standing alone or in connection with other things, have no tendency to show insanity or incompetency in a testator at any time, is incompetent.” (Syllabus 9.)
The hypothetical question placed to Dr. Rennell was objectionable under all of these cases. Proponent’s objection should have been sustained.
The motion for a directed verdict at the conclusion of all proofs should have been granted. The judgment of the lower court is hereby reversed and the matter is remanded to said court, with directions to enter judgment for proponent on the reserved motion, notwithstanding the verdict, with costs to proponent.
Dethmers, C. J., and Smith, Black, Edwards, and Voelker, JJ., concurred with Kavanagh, J.
CL 1948, § 691.691 et se%. (Stat Ann § 27.1461 et seg.).
See 349 Mich xiii.—Reporter. | [
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Carr, J.
This case involves the question whether an instrument purporting to he the last will and testament of Charles Fay, a resident of Lenawee county at the time of his death, is entitled to probate. Said instrument was executed on July 26,1955. Mr. Fay was at the time 75 years of age, and actively engaged in conducting his business affairs. He so continued until a short time before his death, which occurred April 15, 1956.
The will was prepared by an attorney, C. Ralph Kohn, of Morenci, Michigan, who had been Mr. Fay’s legal advisor for approximately 2 years. Provision was made for the payment of certain obligations and for the creating of a trust embracing all remaining assets of the estate, with payments therefrom, during their lifetime, to 2 named beneficiaries. On the death of the survivor of said beneficiaries or on the lapse of 20 years, whichever should be later in time, 1/2 of the principal and undistributed income remaining in the trust was directed to be paid to a suitable charitable organization, to be used for the erection and maintenance of a home, in the Morenci area, for aged people. The balance of the trust fund was bequeathed to Mr. Fay’s 2 sisters, a brother (the contestant herein), and the heirs of a deceased brother, one nephew being excepted from the class of beneficiaries created by the will. The attorney who prepared the will was designated as trustee thereunder, and he and Ralph Moine were nominated as coexecutors.
Following the death of Charles Fay the will was offered for probate by the executors named therein. Objections were filed by testator’s brother, Mark D. Fay, and the contest was certified to the circuit court for determination. On behalf of contestant it was claimed that, the instrument was not entitled to probate because not executed in accordance with statutory requirements, that undue influence was exerted against the testator, and that on the 26th of July, 1955, he lacked mental capacity to make a valid will. On the pretrial hearing counsel for contestant claimed that the witnesses to the will (C. Ralph Kohn and his wife, Lorraine Kohn) were not competent witnesses for the reason that Mr. Kohn, as trustee and as executor, was a beneficiary under the will, that his interest was such as to disqualify him as a witness, and that Mrs. Kohn was also disqualified. This objection was submitted to the circuit judge on motion and arguments of counsel, the parties recognizing that the question should be determined in advance of trial.
In disposing of the matter the court concluded that under the common law a person receiving a direct pecuniary interest under a will was incompetent to witness it, but that the statutes of this State have changed the rule with reference to the right to testify in a judicial proceeding notwithstanding an interest in the subject matter, that, likewise by statute, beneficial devises, legacies and gifts to a subscribing witness are void unless there are 2 other competent witnesses to the will, and that avoiding the beneficial interest, if such existed, renders the witness competent. Contestant’s motion was, in consequence, held to be without merit, and an order was entered setting the ease for trial. The circuit judge further pointed out in his opinion that it was unnecessary to determine whether Mr. and Mrs. Kohn, or either, did receive a beneficial interest under the will.
On the trial of the case before a jury counsel for contestant renewed the objection based on the alleged incompetency of the witnesses to the will, also claiming that a presumption of undue influence arose because of the relationship between the testator and his attorney, that such presumption was not met by proof, and that the testator at the time he executed the will lacked sufficient mental capacity to do so. Following the introduction of proof counsel for proponents moved for a directed verdict in their favor, sustaining the validity of the will and the right to have it probated. The motion was granted. From the judgment entered on the verdict an appeal has been taken. Contestant having died during the pendency of the litigation, his estate is represented in this Court by the administratrix.
On behalf of appellant it is contended that the trial court was in error in holding that the witnesses to the will were competent to act in that capacity. Our attention is called to decisions from other States under statutes at variance with those of Michigan, based on specific provisions of said statutes or on recognition of the common-law rule. The practical situation suggested is discussed in 94 CJS, Wills, § 185, pp 998, 999, where it is said:
“By the common law, interest rendered a person incompetent as a witness to a will, and such is the rule except where it has been abrogated or modified by statute; and the rule is particularly applicable in those jurisdictions in which it has been incorporated into statute. A witness, incompetent by reason of interest, it has been said, is not ‘credible.’
“On the other hand, by statute in some jurisdictions, incompetency by reason of interest has been abolished as to all classes of interested witnesses, or the effect of the statutes is to render subscribing witnesses to a will competent irrespective of any ‘interest in the event’ which might disqualify such witness in another type of proceeding. Where this is true, a creditor of the testator has been held competent to act as subscribing witness; and in many jurisdictions, as appears infra subdivision c of this section, statutes avoid a bequest or devise to a witness and render him a competent witness. * * *
“In accordance with the principles considered supra subdivisions a and b of this section, it has very generally, but not universally, been held, in the ab sence of statute providing otherwise, that devisees or legatees, because of their interest, are incompetent to act as witnesses to wills and that a will attested by legatees or devisees is void unless, excluding them as witnesses, there are a sufficient number of competent witnesses to satisfy the statutory requirements. This situation, however, was remedied by the English parliament by the enactment of legislation which rendered void devises or legacies to witnesses to wills and made them competent subscribing witnesses, thus avoiding the sacrifice of the will except as to the devises or legacies to the witnesses. Accordingly, in many States a witness to a will who is also a devisee or legatee is now a competent subscribing witness to a will, although prevented from taking any benefit thereunder, either by reason of the adoption of the English statutes as a part of the common law of the State or the enactment of statutes of a similar import; and such is now also the rule in the Philippines by virtue of express statutory provision.”
The rule of the common law pertaining to the disqualification of a witness because of an interest in the subject matter has been substantially modified in this State by statute. CL 1948, § 617.63 (Stat Ann § 27.912) reads as follows:
“No person shall be excluded from giving evidence in any matter, civil or criminal, by reason of crime or for any interest of such person in the matter, suit, or proceeding in question, or in the event of such matter, suit or proceeding, in which such testimony may be offered, or by reason of marital or other relationship to any party thereto; but such interest, relationship, or conviction of crime, may be shown for the purpose of drawing in question the credibility of such witness, except as is hereinafter provided.”
Citing the statutory provision quoted, it was said in In re Ferguson’s Estate, 295 Mich 576, 579, that:
“The common-law exclusion of a witness on account of interest is abrogated by statute in this jurisdiction.”
Such declaration is in accord with decisions from other States cited in CJS in support of the conclusions set forth in the summarization above quoted.
It is apparently the position of counsel for appellant that in the instant case Mr. and Mrs. Kohn were not competent witnesses to the will within the meaning of CL 1948, § 702.5 (Stat Ann 1943 Rev § 27.3178[75]), which reads as follows:
“No will made within this State, except such nuncupative wills as are mentioned in the following section, shall be effectual to pass any estate, whether real or personal, nor to charge or in any way affect the same, unless it be-in writing and signed by the testator or by some person in his presence, and by his express direction, and attested and subscribed in the presence of the testator by 2 or more competent witnesses; and if the witnesses are competent at the time of attesting the execution of the will, their subsequent incompetency, from whatever cause it may arise, shall not prevent the probate and allowance of the will, if it be otherwise satisfactorily proved.”
Said section must be read in the light of the provision of the statute, above quoted, rendering witnesses competent to testify, notwithstanding an interest in the subject matter, and, also, in conjunction with CL 1948, § 702.7 (Stat Ann 1943 Rev § 27.3178 [77]), which reads as follows:
“All beneiicial devises, legacies and gifts whatsoever, made or given in any will to a subscribing witness thereto, shall be wholly void, unless there be 2 other competent subscribing witnesses to the same; but a mere charge on the lands of the devisor for the payment of debts shall not prevent his creditors from being competent witnesses to his will.”
As suggested in 94 CJS, pp 998, 999, supra, the avoidance of a beneficial devise or legacy to a witness destroys the basis for a claim of disqualification to act as such witness. Such conclusion is in accord with prior decisions of this Court, among which may be cited In re Baldwin’s Estate, 311 Mich 288. There a provision in a codicil attached to the will in dispute gave the sum of $10,000 to 1 of the 2 witnesses to such codicil, who was also 1 of the executors. It was held that the bequest was void but that, with the exception thereof, the will (p 296) “fulfilled all of the legal requirements for validity.”
In Parrish v. Van Domelen, 335 Mich 23, the testatrix directed in her will that after the payment of a legacy to her brother the residue of the estate should be divided equally among 6 beneficiaries, 2 of whom were the witnesses to the will. It was conceded that the provision for the witnesses was void under the statute. The validity of the will, however, was not questioned. In In re Dalton Estate, 346 Mich 613, a legacy of $5,000 was given to 1 of the 2 witnesses to the will. Such provision was held void but the validity of the will was recognized, and the order of the circuit court holding it entitled to probate was affirmed. These decisions and others of like import may properly be regarded as indicating the interpretation that has been given in Michigan to the statutory provisions above quoted. Such provisions are applicable under the facts in the instant case. The common-law rule must be regarded as modified thereby and, in consequence, the trial court was not in error in holding that the witnesses to the will of Charles Fay were competent within the meaning of the statute. Neither was disqualified from testifying on the ground of any interest or interests, if such there were, given thereto by the will. Whether any beneficial interest within the meaning of the statute was given to Mr. Kohn is not before us on this appeal. We are here concerned solely with the question whether the will is entitled to probate.
It is claimed by appellant that the relation between testator and his attorney was such as to raise a presumption of undue influence, and that such presumption was not rebutted by proofs. That such presumption is rebuttable is not open to question. As pointed out in Hill v. Hairston, 299 Mich 672, 679, the existence of the presumption does not operate to throw the burden on the defendant of establishing that the transaction was free from undue influence. The Court there quoted with approval from In re Bailey’s Estate, 186 Mich 677, 692, as follows:
“ ‘It is true that a presumption is raised that calls for an explanation, but the burden of proof to show undue influence is not thereby shifted.’ ”
The following language from the opinion of the Court in Gillett v. Michigan United Traction Co., 205 Mich 410, 414, was also quoted:
“ ‘It is now quite generally held by the courts that a rebuttable or prima facie presumption has no weight as evidence. It serves to establish a prima facie case, but if challenged by rebutting evidence, the presumption cannot be weighed against the evidence. Supporting evidence must be introduced, and it then becomes a question of weighing the actual evidence introduced, without giving any evidential force to the presumption itself.’ ”
The decision in In re Jennings’ Estate, 335 Mich 241, is in accord with the above cases. It was there held that the prima facie case resting on the presumption was rebutted by evidence, and that the presumption could not be weighed against evidence. In the case at bar it is shown by undisputed testimony that the testator was a man of strong will and Inclined to follow his own ideas. He had been sue eossful in his business, which he was engaged in carrying on at the time the will was executed. In the preparation of the will it was natural for him to consult his attorney, but the record is wholly devoid of any indication that he was induced by his attorney, or by anyone else, to make provisions in his will that were not in accord with his own wishes. There is no proof to dispute the testimony that the provisions of the will were explained to testator, that he understood them, and expressed his satisfaction therewith when the will was finally put in the form that he desired.
Apparently Mr. Fay- was greatly interested in the establishing of a home for aged people, although in so doing he did not neglect to make reasonable provision for his relatives. Under the circumstances it may not be said that the will in question was an unnatural one, or that the act of the testator in naming his attorney as trustee for the purpose of carrying out the provisions of the will indicated the exercise of undue influence. It is also apparent from the proofs that testator was not in an enfeebled condition, either physically or mentally. Without discussing the testimony in detail, it fairly appears therefrom that what the attorney sought to do was to ascertain the wishes of Charles Fay and to express them in proper form. Any inference that might arise from the relations of the parties is met by affirmative proof that no undue influence was in fact exerted, and there is no evidence to the contrary.
On the trial in circuit court contestant called as a witness a former employee of Charles Fay, who was questioned with reference to a conversation had with Mr. Fay in April or May, 1955, preceding the execution of the will on July 26th of that year. She was asked to repeat what Mr. Fay had said with reference to a trust. Objection to the question was interposed and sustained. The court was not advised as to the purpose of the testimony nor does it appear that there was any foundation laid therefor. No request was made by counsel for permission to take the answer to the question on a separate record. Under the circumstances we cannot say that there was prejudicial error in excluding the answer of the witness. It will be noted that the conversation occurred some 2 or 3 months prior to the execution of the will. If the purpose was to show undue influence it was clearly incompetent. No testimony had been introduced before the jury tending to show that such influence had been exerted. In In re Allen’s Estate, 230 Mich 584, 591, it was said:
“The exercise of undue influence must be established by testimony wholly independent of statements or declarations of the testator. "When undue influence is shown to have been exercised, its effect may be disclosed by the state of mind of the testator and such state of mind may be shown by his statements and declarations.”
Of like import is In re Brady’s Estate, 295 Mich 472, 476.
It is also argued that the trial court erred in not submitting the question of mental competency of the testator to the jury on the basis of the testimony of a medical witness who first treated Charles Fay on June 2, 1952. It was the opinion of the witness that at the time Mr. Fay was suffering from hardening of the arteries, which condition affected, to some extent, his heart. The witness again saw the testator in March, 1955, at which time he formed a general impression that the patient had “degenerated as far as his personality was concerned,” indicating also that he thought his mental condition was somewhat affected as a result of the arteriosclerosis. The witness further indicated that Mr. Fay’s con dition was “somewhat worse” when he examined him on May 23, 1955.
The doctor was not asked to express an opinion as to the capacity of the testator to make a will on July 26th following his last examination. Apparently he did not see Mr. Fay during the interval or at the time the will was executed. The question was propounded, however, as to whether Mr. Fay could understand “complicated provisions” of a will. Objection to the question was sustained, whereupon counsel for appellant read at some length from the provisions of the will relating to the creating of the trust, the administration thereof, and the powers and duties of the trustee, and requested the opinion of the witness as to whether Mr. Fay would understand such provisions. Objection to the question was sustained. ' Complaint is made that the ruling was erroneous. However, the undisputed testimony indicated that the testator had repeatedly talked over the provisions of the will with his attorney, and that they had been explained to him to his satisfaction. Without reference to other objections to the form of the question, it omitted any reference ■ to the fact that the language used had been explained. Quite possibly the ordinary layman unfamiliar with the legal terminology customarily used in creating a trust would not fully comprehend the meaning of all expressions employed by the drafting attorney. However, Charles Fay was a man of somewhat extended business experience, and there is nothing in the record to suggest that he was incapable of understanding the explanation made to him by Mr. Kohn. In view of appellant’s claim of error based on the ruling of the court the holding in In re Ferguson’s Estate, 239 Mich 616, is in point. In that ease Justice Wiest, who wrote the unanimous opinion of the Court, said, in part, in commenting on the testimony of expert medical witnesses (p 626)
“Evidently neither one of these experts had in mind the true rale with reference to legal capacity to make a will. Both experts had read the will and seemed to think the terms employed therein were beyond the comprehension of testatrix. The technical wording of the will was the exercise of professional art by an attorney, and it was not at all essential that the testatrix comprehend the legal phraseology with the eye of a lawyer, bnt sufficient if she fully comprehended what was accomplished thereby. Few people understanding the technical language of a deed, and were the understanding of its technical words the test of mental capacity of the grantor few deeds could stand. Underlying the words employed by the lawyer in the will is the simple meaning readily understandable by a layman. No expert can he allowed to consider the technical words in considering the mental capacity of the testator.”
As suggested, appellant’s medical witness did not express an opinion as to the testamentary capacity of Charles Fay on July 26, 1955. As before noted, he did not see testator on that date or within the preceding 2 months’ period. Assuming that Mr. Fay was affected to some extent, both physically and mentally, by the ailment from which he was suffering, the record before us furnishes no basis for a finding that he did not have sufficient mentality to know what property he possessed, of which he was making testamentary disposition, to know who were the natural objects of his bounty, and to understand the disposition of his property that he was making. In re Walker’s Estate, 270 Mich 33.
In In re Ferguson’s Estate, supra, 627, it was said:
“If Mrs. Ferguson, at the time she executed the will, had sufficient mental capacity to understand the business in which she was engaged, to know and understand the extent and value of her property, and how she wanted to dispose of it, and to keep these facts in her mind long enough to dictate her will without prompting from others, she' had sufficient capacity to make the will. A testator may be suffering physical ills and some degree of mental disease and still execute a valid will, unless the provisions thereof are affected thereby.”
Among other cases of like import is In re Johnson’s Estate, 308 Mich 366.
Measured by the tests that have been repeatedly applied, it may not be said under the proofs in the instant case that Charles Fay, on July 26, 1955, lacked sufficient mental capacity to make a will. Apparently witnesses in close contact with him had no question as to his ability in that respect. He was conducting his business affairs at that time, and continued to do so for several months thereafter. We find no error in the case. The trial judge properly directed a verdict for the proponents and the judgment entered on such verdict is affirmed, with costs to appellees.
Dethmers, C. J., and Kelly, and Kavanagh, JJ., concurred with Carr, J. | [
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Voelker, J.
On August 24, 1953, at about 3 a. m., the plaintiff, Billie Cole, .was operating a tractor, a flat-bed trailer and a four-wheeler (pup) at a speed of approximately 40 miles an hour south on US-24, approaching the city limits of Monroe. This is a 3-lane paved highway. The night was clear but dark and there were no highway or city lights. The highway was straight, and there was no approaching traffic. Plaintiff’s truck was lighted and in good working order. Plaintiff was in the center lane, passing a loaded freight van that was traveling in the same direction at a lesser speed in the west lane. When plaintiff .had completed or had almost completed the pass he saw a large black unlighted object moving across the highway in front of him, whereupon he pulled the steering wheel hard to the right and dove to the floor to save his life.
Defendant Lorenzo Barber, on the business of G. L. Allen Company, was driving a tractor, oil trailer and a four-wheeler (pup), both tankers loaded with reclaimed oil. Defendant was in the process of pulling his rig across the highway from a dark parking area on the east side of the highway to the western lane so that he might likewise proceed in a southerly direction. Plaintiff’s rig collided with defendant’s at some point near the center of the highway, as a result of which plaintiff suffered multiple permanent injuries.
At this point the facts become less clear. The evidence is in dispute as to precisely where the accident happened, where the debris from the accident was located, whether defendant had lights on his truck or not, and the position of defendant’s rig on the highway at the time of the accident. There were no other eyewitnesses.
The jury returned a verdict of $17,500 and, on motion for judgment non obstante veredicto, the jury verdict was set aside and a judgment of no cause for action was entered by the trial judge.
The question before this Court is: was the plaintiff guilty of negligence as a matter of law, so as to give the trial judge the right to enter the judgment non obstante veredicto? Put another way the question narrows down to this: did the defendant enter plaintiff’s lane of travel in advance of the plaintiff’s “assured clear distance ahead” or did he enter that lane of travel at some intermediate point within such assured clear distance ahead?
In the light of the extreme conflict in the evidence presented and the total absence of disinterested eyewitnesses, and taking the evidence in the light most favorable to the plaintiff, as we must, we question whether the learned trial judge could be so certain that this was not a case of one vehicle intersecting another vehicle’s assured clear distance ahead so as to invoke the rule that plaintiff was negligent as a matter of law. Prom the evidence presented it seems that the minds of reasonable men might have differed on this issue. (Detroit & M. R. Co. v. Van Steinburg, 17 Mich 99 at 123.) Such being the case we must conclude that the learned trial judge was in error in taking the verdict from the jury. As long as there is competent evidence on which the jury may reasonably hang its verdict, it lies without the province of the trial judge to grant a motion for a judgment non obstante veredicto. (Gapske v. Hatch, 347 Mich 648.) On favorable view we think there was such competent evidence in this case.
In regard to defendants’ request for a new trial, in the event that the judgment non obstante veredicto should be vacated, based upon a claimed erroneous and misleading charge concerning the assured clear distance ahead rule, it is our opinion, after reviewing the charge to the jury in its entirety, that although it may not be phrased exactly as we might have phrased it, it is neither misleading nor erroneous.
The assured clear distance ahead rule says, in essence, that a driver shall not operate his vehicle so fast that he cannot bring it to a complete stop within that distance ahead of him in which he can clearly perceive any object that might appear in his path. If a motorist drives faster than his perception and braking ability safely permit him to do, and an accident results because of it, he is negligent as a matter of law. Conversely, a motorist is not necessarily negligent as a matter of law if another vehicle or other moving object suddenly intersects his lane of travel or line of vision at some intermediate point within his assured clear distance ahead. In such a case his negligence or lack of it are properly questions of fact for the jury to determine. {Meehl v. Barr Transfer Co., 296 Mich 697; Barner v. Kish, 341 Mich 501.)
Accepting this as an accurate statement of the rule, the charge of the court below, when considered in its entirety, cannot reasonably be interpreted as erroneous or misleading. The judgment non obstante veredicto is accordingly reversed, the request for a new trial denied, and the case is remanded to the trial court for entry of judgment on the verdict of the jury. Costs to plaintiff.
Dethmers, C. J., and Carr, Kelly, Smith, Black, Edwards, and Kavanagh, JJ., concurred.
See PA 1949, No 300, § 627 (CLS 1956, § 257.627 [Stat Ann 1952 Rev § 9.2327]). | [
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Edwards, J.
The question presented by this case is set forth thus by appellant:
“May the city of Muskegon enact and enforce an ordinance declaring that ‘Any person who drives any vehicle upon a highway without due caution and circumspection and at a speed or in a manner so as to endanger any person or property, shall be guilty of careless driving,’ when the Michigan vehicle code-has declared the same conduct to be ‘reckless driving’ and provided similar penalties therefor?”
The facts essential to our consideration have been agreed upon:
“On September 20, 1955, a complaint was filed with, and a warrant issued by the municipal judge of the city of Muskegon, charging the defendant and appellee, Louis F. Drost, with operating a vehicle on a public street of the city of Muskegon ‘without due caution and circumspection and at a speed and in a manner so as to endanger other persons and property, in that he did operate same during the-hours of darkness and at a time of heavy vehicular traffic, to-wit, 12:30 a.m. on said date, operating said vehicle at a speed estimated between 40 and 45 miles per hour in a 25-mile-per-hour speed zone,, between the intersection of Western avenue with Third street and Fourth street, turning off the lights on his vehicle and passing another vehicle between Fourth street and Fifth street at a speed of 45 miles-per hour and upwards, turning the lights of his vehicle back on as he crossed Eighth street, contrary to the provisions of section 40, subd A’ of the street traffic ordinance of the city of Muskegon. ■
“Trial was had before the municipal court on December 8, 1955. Appellee moved to dismiss for the reason the 'traffic ordinance pursuant to which appellee was charged was invalid, it being in conflict with the State statute, CLS 1954, § 257.626 (Stat Ann 1953 Cum Supp § 9.2326), which provides as follows :
“ ‘Sec. 626. (a) Any person who drives any vehicle upon a highway or a frozen public lake, stream or pond carelessly and heedlessly in wilful or wanton disregard of the rights or safety of others, or without due caution and circumspection .and at a speed or in a manner so as to endanger or be likely to en danger any person or property, shall be guilty of reckless driving and upon conviction shall be punished as provided in paragraph (b) of this section.
. “‘(b) Every person convicted of reckless driving under paragraph (a) of this section shall be punished by imprisonment in the county or municipal jail for a period of not less than 5 days nor more than 90 days or by fine of not less than $25 nor more than $100, or by both such fine and imprisonment, .and on a second or subsequent offense shall be punished by imprisonment for not less than 10 days nor more than 6 months or by a fine of not less than $50 nor more than $1,000, or by both fine and imprisonment.’
“The court heard the proofs and took the motion under advisement.
“Section 40 of the traffic ordinance provides:
“ ‘A. Any person who drives any vehicle upon a highway without due caution and circumspection and at a speed or in a manner so as to endanger any person or property, shall be guilty of careless driving.
“ ‘B. Any person who drives any vehicle upon a highway carelessly and heedlessly in wilful and wanton disregard of the rights or safety of others shall be guilty of reckless driving.’
“The penalty provided in the ordinance is a fine of any amount not exceeding $100 for each offense ór imprisonment in the county jail for a term not exceeding 90 days, or both in the discretion of the ■court. * * *
“The municipal judge, following the trial, filed an opinion in which he stated, ‘After hearing the proofs I am satisfied respondent is guilty as charged if the ordinance is valid.’ However, the judge found the ordinance invalid, it being; in conflict, he stated, with the section above mentioned of the Michigan motor vehicle code, for the following reasons:
“ ‘1. The ordinance purports to reduce what is gross negligence under the State law to ordinary negligence under the ordinance.
“ ‘2. The ordinance contemplates a penalty not to exceed $100 and/or 90 days in the county jail, while the statute requires a minimum of not less than 5 days in jail or not less than $25 fine, with the maximum penalty being 90 days in the county jail and/or a $100 fine.’
“On May 2, 1956, the municipal judge entered an order dismissing the complaint and warrant and discharging the defendant.
“An appeal was taken to the Muskegon county circuit court by appellant, city of Muskegon, on May 5, 1956, and a return was filed in the latter court on May 9, 1956.
“By stipulation, the circuit court took the question of law raised in the municipal court under advisement, and after the legislature failed during its 1957 term to amend the section of the motor vehicle code above mentioned, the court filed an opinion acquiescing in the opinion of the municipal judge.
“On June 11,1957, an order was entered in the circuit court, without hearing or trial, dismissing the appeal from the municipal court and discharging appellee.
“On June 28, 1957, plaintiff and appellant filed an application for leave to appeal, and on September 4r 1957, an order was entered granting the application.
“Thereafter a timely appeal was taken in the nature of mandamus by leave granted and the case is submitted upon the foregoing • agreed statement of facts.”
Under the Constitution of the State of Michigan, “reasonable control” of the streets and alleys is reserved to the cities and villages of this State (Const 1908, art 8, § 28); and section 21 of the same article grants municipalities power to pass ordinances relative to municipal concerns.
This constitutional authority is, of course, not denied but it apparently is the position of the trial judge and the circuit judge in this matter that since the ordinance terms “careless driving,” acts which by the statute are termed “reckless driving,” there is a direct conflict which invalidated the ordinance.
A portion of the very words of the statute have been incorporated in the prohibitory portion of the ordinance. It is true that the ordinance describes driving “without due caution and circumspection and at a speed or in a manner so as to endanger any person or property” as “careless driving,” where the statute includes such acts under the term “reckless driving.” Since, however, the maximum penalties provided are identical, it may well be argued that a rose by any other name would have as many thorns.
The general rule in relation to this matter is stated thus in People v. McGraw, 184 Mich 233, 238:
“Taking the sections together, they should be so construed as to give the power to municipalities to pass such ordinances and regulations with reference to their highways and bridges as are not inconsistent with the general State law. In other words, the municipality retains reasonable control of its highways, which is such control as cannot be said to be unreasonable and inconsistent with regulations which have been established, or may be established, by the State itself with reference thereto. This construction allows a municipality to recognize local and peculiar conditions and to pass ordinances regulating traffic on its streets, which do not contravene the State laws.”
We do not believe that this ordinance contravenes the State statute referred to. People v. Hanrahan, 75 Mich 611 (4 LRA 751); Surtman v. Secretary of State, 309 Mich 270; City of Dearborn v. Sugden & Sivier, Inc., 343 Mich 257. In the words of this last case, this ordinance (pp 265, 266) “does not assume to authorize conduct by those using its streets and highways of a character forbidden by general State law.”
The order dismissing this case and discharging the defendant is set aside and the case is remanded to the trial court.
Dethmers, C. J., and Carr, Kelly, Smith, Black, Voelker, and Kavanagh, JJ., concurred. | [
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Kelly, J.
Plaintiff (wife) obtained a jury verdict of $5,084 sustaining her claim that her husband’s death was caused by defendant’s violation of the Michigan liquor act_ (CLS 1956, §436.22 [Slat Arm 1957 Rev § 18.993]) prohibiting the furnishing or sale of liquor to an intoxicated person. The trial court, upon defendant’s motion, entered judgment for defendant non obstante veredicto.
April 18, 1956, plaintiff’s deceased husband, a sailor (in uniform), met John Carroll, a marine (in uniform), and Garrette DeBack, a police officer (in plain clothes), ait a Grand Rapids bar, which was known as Vinney’s Bar. Carroll had been there since 8:30 or 9 o’clock that evening and had been in and out of the bar about 3 times, each time having 1 or 2 beers. DeBack came in about 9:30 and plaintiff’s husband at about 11 o’clock. Plaintiff’s husband had 4 or 5 eight-ounce draft beers and DeBack drank pop for a while and then had 4 or 5 gin and squirts. All 3 left Vinney’s Bar about 12 o’clock and proceeded to defendant’s bar, known as the Oasis. The 3 men, Grinstead, Carroll and DeBack, remained at defendant’s bar until about 1:45 a.m. (April 19th), at which time they left said bar and entered an automobile ■ owned by Carroll. As they drove north on Division street they passed a Grand Rapids traffic officer, driving in the opposite direction, who turned and followed them but did not catch up with them before the accident. This officer testified they were traveling more than 60 miles an hour.
The Carroll car struck a light pole, skidded between the sidewalk and curb for a distance of 104 feet, struck another light pole and then struck the abutment of an underpass. The total skid marks were more than 300 feet. All 3 men were thrown out of the car and Grinstead and DeBack were killed. There is no testimony as to who was driving the car at the time of the accident, but it was Carroll’s car and the presumption that he was the driver was not rebutted.
Carroll’s body was found 30 feet from the automobile. No further reference is made in the record before us in regard to Carroll, other than that he was taken from the scene of the accident to the hospital.
Blood was drawn from the hearts of Grinstead and DeBack, and the alcoholic content was revealed to be .19% for Grinstead and .22% for DeBack. Dr. Clarence Muehlberger testified that a person with more than .15% alcoholic content would definitely be intoxicated.
There is no direct proof that defendant, or his agents, or employees, sold, gave, or furnished intoxicants to the presumed driver of the car (marine Carroll).
The jury verdict could only be justified by the presence of sufficient circumstantial evidence.
While at defendant’s Oasis all 3 were seated at the bar. Two of defendant’s employees, namely, the manager and bartender, Frank Bogard, and Bennie Durkowski (also a bartender) were working behind the bar.
Bogard testified he did not see the sailor and the marine or the policeman at the bar, and stated his main duty was to take care of orders brought to him by waitresses who served patrons at the tables.
Bartender Durkowski did not testify, and the only reference to him in the record is Bogard’s testimony, as follows: “I do not know where he is now, I understand he is working for a construction company.”
A waitress, Valerie Durham, stated she saw all 3 men seated at the bar. She testified:
“Q. Did you notice anything in front of them?
“A. There were glasses there.
“Q. Was there anyone behind the bar at that time?
“A. Yes, 2 men.
“Q. Was there anyone, near them doing anything with them?
“A. At one time I saw a man giving them change.
“Q. Who was that man?
“A. Frank.
“Q. Who is Frank?
“A. The manager now (Frank Bogard).
“Q. Did you notice the men following that time, during the evening at any time ?
“A. Once when they went to the rest room.
“Q. Did you have any reason to notice them particularly any time after that?
“A. Not particularly.
“Q. Did you notice them any time after that?
“A. Well just as you glance at a person.
“Q. Whenever you glanced, did they have anything in front of them?
“A. That I wouldn’t know all the time, sometimes.
“Q. What did they have in front of them at times ?
“A. I didn’t at all times happen to look at what they were drinking. I didn’t see them very much, really.
“Q. Did you see them up to the time they left?
“A. I don’t know when they left.
“Q. You are not sure of that?
“A. That is right.
“Q. Sometimes you say. What was in front of them sometimes?
“A. Glasses. What they contained, I don’t know.”
Waitress Durham admitted that on the next night after the automobile accident she was informed by the owner (Anscer) and the manager (Bogard) “That we shouldn’t say anything about (the accident), not to talk about it, not to tell anybody we had seen the men.”
In this regard Anscer testified that the night the marine, the sailor, and the policeman, came to his place of business he was not there, as he “was not in attendance and was not working the place.” The following question was asked Anscer on direct examination by his attorney:
“Q. Mr. Anscer, did you ever instruct any of your employees that they were to say nothing at all about the offense that has been described in this case ?'
“A. I don’t remember saying that myself.”
On cross-examination Anscer testified:
“Q. Mr. Anscer, you say you don’t remember. So it is possible you might have and forgotten?
“A. There may be one point. A marine came in and questioned me — I don’t know how long after the accident — and it may be I said you don’t have to answer that marine. That is as far as it could have been.”
Waitress Popma testified that she saw the marine in the bar, but not the sailor; that he passed her once on the way to the men’s room and she noticed nothing unusual in his walk and that there was no loud talk. On cross-examination she testified:
“Q. You still work for the Oasis Bar, don’t you?
“A. Yes, I do.
“Q. Do you remember being told that you weren’t, I don’t remember the exact words, but something to the effect not to admit they were in there?
“A. No. The only thing I was told there was a marine investigating and I was told I didn’t have to talk to him because his investigation was not official.
“Q. There was nothing else said?
“A. No.
“Q. You say you don’t recall the sailor or anything else?
“A. The reason I noticed the marine he was the first man at the bar and because he spoke to me when he passed.
“Q. Do you know how long he was in there?
“A. No, I really don’t know what time he came in. I know he was not there at 1:30 when the music stopped.
“Q. You didn’t see him drinking anything at all?
“A. No.
’ “Q. You don’t know how long he was in there and you didn’t see him drinking anything?
“A. No.
“Q. Nothing in front of him?
“A. Saw a couple of glasses. I didn’t notice. I noticed him sitting at the bar. He had his back to me.”
Grand Rapids police department’s patrolman Bolhouse stated that after finishing duty he went to defendant’s bar about 1 a.m. He testified:
“I walked in, I was standing at the bar and DeBack came up in back of me, tapped me on the shoulder and I talked to him a few minutes. He had old clothes on.
“Q. Did he say anything to you?
“A. Yes. He said he was out with a crazy marine and sailor. They were really whooping it up.
“Q. When he said that, did that direct your attention to anybody?
“A. Yes, a marine in dress uniform and a sailor, in dress blues.
“Q. Where were they?
“A. On the other end of the bar, back of the bar.
“Q. What were they doing?
“A. They were talking loud and moving around from table to table.
“Q. Were they carrying anything, either the sailor or the marine?
“A. The marine was the closest to DeBack and he was carrying a bottle of beer. I couldn’t tell for sure what the sailor was carrying.
“Q. Did you notice anything about their manner?
“A. They were loud and staggered quite a bit, especially the marine.
“Q. What about DeBack?
“A. Well his speech was really slurred, he staggered, he didn’t act like he would normally act if he wasn’t under the influence of intoxicating liquor.”
On cross-examination Bolhouse stated:
“Q. At that time you say officer DeBack offered to buy you a beer but you didn’t see any one of thése 3 gentlemen purchase any beer or whiskey or anything else yourself, did you?
“A. No, I didn’t.
“Q. None of them, while you were there for 45 minutes, did you see purchase any alcoholic beverages ?
“A. No.
“Q; So you can’t tell from your own knowledge and testimony whether what they had in their hands was a gift of someone else there? Could have been a gift from some friend?
“A. Couid have been.
“Q. You didn’t see them purchase anything in the Oasis Bar during the time you were there ?
“A. That is right.”
Plaintiff’s witness, Gene Goforth, a married man with a family, said he stopped about 1.1:15 p.m. at Vinney’s Bar after finishing work at St. Mary’s hospital and that .he saw'the 3 men seated at the bar drinking; that he again saw these men at the Oasis shortly after 1 o’clock. He testified:
“Q. Did you notice what the men were doing at the Oasis?
“A. Well, they were having a few.
“Q. Could you describe their condition?
“A. Well, they were having a good time. I would say enjoying themselves.
“Q. Could you describe your condition?
“A. Well, I was feeling all right.
“Q. What do you mean by feeling all right?
“A. Well, I had a few myself.
“Q. Could you describe those men with relation to you? .-
“A. Well, I would say they were feeling better than me.
“Q. Did you observe the men leave the Oasis?
“A. Well, I know approximately what time they left.
“Q. About what time did they leave ?
“A. It was near a quarter of 2.
UQ. What did you do ?
“A. Well, I went out myself shortly after that.
“Q. When did you see the men again?
“A. At the scene of the accident.
“Q. How soon after you had left the Oasis was this?
“A. This was about 5 minutes after I left.”
On cross-examination Goforth testified:
“Q. And they were in normal condition?
“A. Well, they were feeling pretty good, I would say.
“Q. Well, is there anything abnormal about that?
“A. Well, I wouldn’t say it was so abnormal, but they had been drinking.
“Q. But you are not going to say they were intoxicated ?
“A. I would say they were having a good time and feeling no pain, as I would describe it.
“Q. That is the way you would describe it?
“A. Yes.
“The Court: You say feeling no pain?
“A. Yes.”
The question presented is: Is this circumstantial evidence sufficient to submit to the jury the issue of whether defendant gave, sold, or furnished intoxicants to Carroll while he was in an intoxicated condition?
In 33 CJ, Intoxicating Liquors, §§ 330, 338, pp 651, 653, we find the following:
“Although an action under the civil damage laws is penal in its nature, and hence the allegations of the complaint must be fully proved, it is not a criminal proceeding, and therefore it is not necessary that the evidence should exclude all reasonable doubt. Plaintiff may recover on a mere preponderance of the evidence, and circumstantial, as well as direct, evidence may he sufficient. In civil damage cases for injury from the sale of intoxicating liquors, as in ordinary damage suits, the evidence must afford a basis, reasonably certain, from which the jury may find compensation for the loss suffered from the injury proved. * * *
“As in other civil actions, in actions under civil damage laws, questions of law are for the determination of the court, while questions of fact or mixed law and fact are ordinarily to be determined by the jury under proper instructions from the court. In such an action, it is for the jury to determine: "Whether there was a sale, gift, or furnishing of liquor by defendant; whether intoxication was produced by the liquor so sold or furnished; whether the liquor sold or furnished by defendant caused or contributed to the injury complained of.”
In Cebulak v. Lewis, 320 Mich 710 (5 ALR2d 186), we held:
“Circumstantial evidence in support of or against a proposition is equally competent with direct and, as against each other, their relative convincing power is for the jury.” (Syllabus.)
In Cuttle v. Concordia Mutual Fire Ins. Co., 295 Mich 514, this Court held:
“Circumstantial evidence in support of or against a proposition is equally competent with direct.” (Syllabus.)
In Baessler v. Foster, 159 Mich 513, we held:
“No error was committed by the trial court, in an action for the death of plaintiff’s husband, under, the law regulating the sale of intoxicating liquors, in submitting to the jury as a question of fact whether liquor was sold by the defendant to the deceased on the night he was killed, where the testimony showed that he was drinking in the defendant’s saloon at the time, and the witness and defendant might have seen the deceased from the position in which both were situated, although the facts were disputed.” (Syllabus.)
This Court in Maldonado v. Claud’s Incorporated, 347 Mich 395, considered the question of whether there was competent evidence to show an illegal sale, in a case similar to the one now before us. In the Maldonado Case we made a statement which applies to the present case (p 401):
“While the testimony in this respect was such as might well raise doubts with reference to the matter, it was for the jury to determine the weight to be given to it. In determining whether the motion for judgments notwithstanding the verdicts was properly granted, we have in mind the generally accepted rule that the testimony is to be construed in plaintiff’s favor.”
The trial court properly instructed the jury:
“Now I realize that the testimony of the witnesses on each side of this case differs, and because of that fact you are the judges of the credibility of the witnesses, and by that I mean their right to be believed. You alone are the judges of that.
“If you find by a preponderance of the evidence that liquor, intoxicating liquor was sold to the one of these 3 men that drove this car at a time when he was intoxicated and that his intoxication brought about the accident which resulted in the death of plaintiff’s husband, then your verdict will be for the plaintiff; otherwise your verdict will be no cause of action.”
We find no merit in appellant’s contention that the court committed error in its charge to the jury in regard to damages and deny appellant’s request that “a new trial be granted on tbe grounds of damages only.”
Reversed and remanded to tbe trial court for entry of judgment upon tbe verdict of tbe jury. Costs to appellant.
Dethmers, C. J., and Carr, Smith, Black, Edwards, Voelker, and Kavanagh, JJ., concurred.
CL 1948, § 436.29 (Stat Ann § 18.1000). | [
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Edwards, J.
James A. Bentley died as a result of metastasized cancer at 59 years of age. He left behind a divorced wife who is the plaintiff here as guardian of deceased’s 2 minor children.
Prior to his lengthy last illness, Bentley had worked for 10 years for Doehler-Jarvis Corporation in the traffic department, bringing materials from the storeroom to the plant.
It is undisputed on this record that Wilson’s death was caused by squamous-cell cancer which infiltrated and developed a large tumor in the area of the sub-maxillary gland below his left jaw. It appears apparent that it was this tumor which caused Bentley’s disability from work in August of 1952 and, after failure of radiological and operative treatment, led to his death on February 18, 1955.
The medical reports agree, however, that the site of this “explosion” of the cancer was not the primary site of cancer in Wilson’s body. Plaintiff’s claim is based on the identification of a small hard area located just below Bentley’s lower lip which was biopsied in the search for a primary site for cancer.
Bentley’s testimony at trial identified the spot of this small hard area as the site at which he had suffered a blow to the lower lip in January, 1951, 1-1/2 years before his disability. The company first-aid records were brought in to prove that such a blow indeed did take place. But the record submitted indicated merely that the injury was to Bentley’s “face below the nose,” and was dated August 18, 1950.
These 4 disputed issues of fact are argued to us with plaintiff claiming, and defendant denying, the truth of each assertion below:
1. That the small inactive hard place-described on Bentley’s lower lip was squámous-cell cancer;
2. That the squamous-cell cancer in the area of 'the submaxillary gland which caused Bentley’s death was occasioned by metastasis from the primary site described above;
3. That Bentley suffered an injury to his lower lip during January, 1951; •
4. That the’blow to Bentley’s lip in January, 1951, plus subsequent réinjury thereto, either caused or precipitated the squamous-cell cancer which eventually led to his death.
As to all of these factual issues, the workmen’s compensation appeal board found for the plaintiff:
“From the record before us we find as follows: deceased was a 58-year-old divorced man, paying more than 50% of the support of 2 of his children (Ronald and Sharon), in January, 1951. He was first employed on March 17,1943, and last worked on June 2, 1953. On or about January, 1951, deceased worked in the traffic department. His job required him to fill orders for supplies for the shop. As he was tipping off a bundle of cardboard cartons from .the top of a pile, 1 of the cartons fell and struck him against the left side of his lower lip cutting the lip ■and causing it to bleed. He then notified his foreman, Joe Pieckiel, of his injury. Subsequently he bumped the lip on other occasions sufficient to open the bump of the unhealed wound but in a manner and extent that could have been unnoticed had the lip been fully healed. The cut failed to heal for about 6 months and then after healing a white spot appeared and was noticeable for about 3 months. Thereafter a numbness was noted in the area. A bump developed which deceased thought was a boil or carbuncle and he sought medical attention. A biopsy of tissue taken from the injured lip was made. The tissue showed , leukoplakia with apparent regeneration of the squamous epithelium, with marked •' chronic inflammation and definite islands of neoplastic tissue showing evidence of squamous cell carcinoma. A biopsy of tissue of the submaxillary area shows squamous cell carcinoma. Deceased was unable to work from July, 1952, to November, 1952. After returning to work in November, 1952, his condition grew worse and he had to cease work on June 2,1953. He subsequently died on February 18, 1955, from an metastasized squamous cell carcinoma. The primary source of the squamous cell cancer was the lip lesion with metastasis downward and deeper. The medical testimony establishes a causal relation between the trauma received in January, 1951, during the course of decedent’s employment with defendant company and the resulting metastasized cancer which ultimately caused death. . The evidence establishes a cause and effect relationship between the injury received and the death on February 18, 1955.” (Emphasis supplied.)
Our review of disputes of fact in workmen’s compensation proceedings is, as we have repeatedly noted, distinctly limited; and these findings are, of course, binding upon the court if the record contains evidence to support them. CL 1948, § 413.12 (Stat Ann 1950 Rev § 17.186); Hood v. Wyandotte Oil & Fat Co., 272 Mich 190; Thornton v. Luria-Dumes Co-Venture, 347 Mich 160; White v. Michigan Consolidated Gas Co., 352 Mich 201.
The crucial finding of fact of the appeal board accepted plaintiff’s testimony that he had suffered a blow in January, 1951, and that it had been to his lower lip. The appeal board likewise accepted plaintiff’s medical testimony to the general effect that the hard place on plaintiff’s lower lip was cancerous and was the primary site from which the fatal spread of the cancer occurred.
All of these findings are in conflict with substantial testimony presented by the defendant; but our review of this record indicates that there was like wise competent evidence from which, these findings of fact could have been made.
The crucial finding of the appeal board, however, is contained in these 2 sentences:
“The medical testimony establishes a causal relation between the trauma received in January, 1951, during the course of decedent’s employment with defendant company and the resulting metastasized cancer which ultimately caused death. The evidence establishes a cause and effect relationship between the injury received and the death on February 18, 1955.”
The record contains the testimony of plaintiff’s expert witness, Dr. Gabriel Steiner, who is identified as a specialist in neuropathology and pathology.
Dr. Steiner was asked to answer a hypothetical question containing these facts, which we have reviewed against this record and found supported there:
“Mr. James Bentley, born in approximately January of 1896, was an employee of the Doehler-Jarvis Corporation. While so employed, in approximately January of 1951 while working in a narrow area, he cut his lip.
“During his lifetime he testified for us and stated that the lip did not completely heal for 5 or 6 months, and that during that time and because of the tightness of the place in which he had to work, between 2 narrow vertical walls in which material was stored, he had bumped his lip many times. He stated that he didn’t lose any time because of it and when it finally healed, which was 5 or 6 months later—
“A. You said 5 to 6 months later?
“Q. Five to 6 months later, the white spot over the site of the trauma was still there. That went away, but a numb spot remained there, and, as he said, never went away.
“In May of 1952 lie noticed a lump in the sub-maxillary area and during a vacation period he consulted a Dr. Bruggema. It was in August of 1952 that we have the first biopsy of the submaxillary area, which has been referred to by yourself and read, being exhibit H.
“He was then referred to Dr. Fellows, a radiologist at Grand Bapids, as of August of 1952 for further care. He instituted a further search, and in September of 1952 a biopsy of the lip was had which has been identified as exhibit K.”
After some discussion of the difficulty of the problem, Dr. Steiner’s answer was:
“It is my firm belief that in the case of this man, the repeated injuries produced or were an essential factor in the production of his squamous cell carcinoma of the lip.” (Emphasis supplied.)
“Q. Then you previously stated that your opinion was that the area in the submaxillary region was secondary to the lip, and that death resulted from the entire—
“A. Spread of the cancer.
“Q. Would it then follow that this man’s disability and death from the cancer was related in your opinion or could reasonably be related to these injuries as described?
“A. Yes.
“Q. Doctor, what medical significance is there to the testimony that the lip never healed for approximately 5 or 6 months? What does that indicate to you?
“A. That could indicate already the cancerous character of this lesion. I think it is probable, but I have no definite proof for that.”
Dr. Steiner had previously testified that the slide taken on biopsy of the lip lesion showed squamous-cell carcinoma, and that, on the medical history given, the lip lesion was the probable primary site of the cancer which resulted in Bentley’s death.
There is direct disagreement with Dr. Steiner’s testimony in this record, particularly that contained in the testimony of defendant’s expert witness, Dr. A. James French, pathologist of the University of Michigan hospital. Dr. French stated that he could not make a diagnosis of carcinoma on the material' contained in the slide taken from the first biopsy of the lip lesion suffered by Bentley. Dr. French also-expressed skepticism about trauma having a relationship to lip cancer. But having identified the-condition he saw in the slide of the lip lesion as possibly pre-cancerous, he concluded in answer to plaintiff’s hypothetical question:
“I think that there is no reason to state that there isn’t a relationship between possible repeated trauma, and the changes I found in the lip.”
Neither of these expert witnesses, however, had ever seen Bentley or had any part in his treatment while alive. One of the doctors, the radiologist, who-did have responsibility for the treatment of Bentley, apparently was the first to formulate the theory upon which this claim is based. His testimony makes evident that he believed it sufficiently to base his treatment thereon.
Dr. Kenneth E. Fellows, who took his training, both as to general medicine and his specialty, radiology, at the University of Michigan, first saw Bentley August-11, 1952, and took a history for the purpose of aiding diagnosis:
“The patient gives a history of having bumped his lip to the left of the' midline. That is the lower lip, to the left of the midline approximately 1 year ago, which was followed by a small area that healed but persisted in being numb. He has bumped it from time to time since.
“In May of this year, that is 1952, he developed a small nodule beneath the mandible in the region of the submaxillary gland, slightly anterior to same, which has progressively increased in size so that the mass now reaches approximately to 9 centimeters in diameter.”
Dr. Fellows detailed his examination of the major tumor in the submaxillary area and gave his opinion that this tumor was metastatic. His testimony continues :
“Well,, after searching his morith and. pharynx as 1 stated in the history, we found nothing except this little area in the buccal mucosa opposite this tartar deposit, just very innocuous, but aside from that, we found this thing in the lip and this was the only thing that we could really attach any significance to. In fact, we were a little bit suspicious that that wasn’t anything, but I went on and advised a biopsy.”
' After receiving the first and negative report on the •biopsy of the lip lesion, Dr. Fellows asked for a second study and report which was returned with a finding of “leukoplakia possibly malignant.” After detailing his examination of Bentley to seek other possible primary sites, Dr. Fellows was asked his opinion about the lip lesion:
“Well, obviously, because we went under the assumption all the time that this was the most suspicious area and this would be the most common drainage site, and there would be an obvious drainage there. That happens every once in a while, you find a low-grade skin cancer, an epithelioma, and that also is more common around the lip, particular in the vermilion border, to' undergo auto-sterilization, I guess is the best way to put it. In other words, for some unknown reason, it slows down and the cells don’t grow, and become benign, healing over the crater so that it looks innocuous, but actually it is still there.”
On the basis of this diagnosis, Dr. Fellows testified he treated the site of the lip lesion with over 5,000 roentgens to seek to sterilize it. On vigorous cross-examination pertaining to whether or not the lip-lesion was the primary site, Dr. Fellows said “we-were pretty certain,” and “it is the only source we-could find.”
Dr. Fellows, in answer to plaintiff’s attorney’s hypothetical question as to trauma causing the lip-lesion, carefully qualified his answer:
“That it is possible that the trauma might play a part or be a factor. I am not saying it produced it. I am saying that it may be a factor in the production of this lesion.”
This record is replete with medical assertions of lack of positive knowledge about the cause of cancer.’ And yet, with all this uncertainty, the patient was diagnosed and was treated. The appeal board had the task assigned by statute to make findings of fact, if the proofs warranted, as to what caused Bentley’s death. We cannot say that its decision is unsupported by competent evidence, particularly when it accords with the testimony of the doctor who had the patient’s life in his hands.
As to the procedural errors claimed by defendant,, we find much less reason for extensive discussion in this opinion.
Obviously, from what has been recited, defendant knew of the original injury, and of the cancer which Bentley subsequently developed. Defendant complains with vehemence that it was deprived of notice- and claim of industrial causation of the cancer condition. The answer, of course, is that Bentley was, too.
The record makes clear that Bentley’s first knowledge of possible relationship between the lip blow and lesion of 1951 and the submaxillary tumor of 1952 came from Dr. Fellows in August of 1952 and the biopsy of the lip done by a Dr. Wurz in that month. Bentley testified that he discussed the relationship of the blow and the subsequent lip lesion to the tumor with defendant’s insurance man within that same month. No report either of the original injury or this subsequent notice as to compensable causation was ever filed by defendant company. Bentley returned to work in November of 1952 and worked until June of 1953. Formal claim was filed first May 13, 1954. The guardian’s claim was filed March 28,1955.
We have previously dealt with the question of whether or not in such a set of circumstances the notice and claim provisions of the statute (CL 1948, § 412.15 [Stat Ann 1950 Rev § 17.165]) bar compensation.
In Hayes v. Detroit Steel Casting Co., 328 Mich 609, 614, 615, this Court said:
“It is, we think, reasonably apparent that plaintiff was not aware that he was suffering from psychoneurosis. It cannot he said that such condition was manifest immediately following the injury. It does not appear that a medical diagnosis of the condition was made until after plaintiff’s disability had continued for an extended period of time.
“The practical situation is that the injury to the plaintiff resulted in (1) the loss of an eye, and (2) a disabling psychoneurosis, the existence of which was not immediately determined. Under the circumstances we cannot agree with defendants’ contention that the failure on plaintiff’s part to give notice, and file claim for compensation, within the periods therefor prescribed by the statute, above quoted, bars the recovery of compensation. The facts here are somewhat analogous to those in Palchak v. Murray Corporation of America, 318 Mich 482, in which an award of compensation was affirmed as against the objection that the claim had not been seasonably filed. See, also, Jelusich v. Wisconsin Land & Lum ber Co., 267 Mich 313; Rowe v. Consumers Power Co., 268 Mich 162; Wilson v. Tittle Brothers Packing Co., 269 Mich 501.”
Further, defendant’s failure to file a compensable accident report after deceased’s notice of August,. 1952, barred its recourse to the limitation provisions of the statute. Shaw v. General Motors Corporation, 320 Mich 338.
As to appellant’s objection to the referee’s admission of Bentley’s testimony and his failure to strike same after Bentley’s death prevented completion of cross-examination, we adopt the reasoning of the appeal board:
“We find the hearing referee’s denial of defendant’s motion proper and hold defendants were given ample opportunity to cross-examine deceased, and did in fact, exhaustively cross-examine at length. The major portion of the testimony of deceased being elicited under cross-examination. Defendant’s rights have not been shown to be prejudiced by termination of deceased’s testimony.”
A review of the cross-examination conducted leaves us puzzled as to what purpose additional cross-examination would have served. We do not believe defendant’s rights to adequate cross-examination were prejudiced, or that the referee abused his discretion. 5 Callaghan’s Michigan Pleading & Practice, § 37.169.
Nor do we find error in the admission, over objecttion, of Dr. Steiner’s deposition. The appeal board noted:
“The deposition of Dr. Steiner was taken for the reason that he resided more than 50 miles from the place of trial.”
We believe this reasoning is consistent with the purposes of the statute. CL 1948, § 617.6 (Stat Ann §27.854). '
Finally, we have reviewed the numerous questions appellant has advanced relative to the exclusion of evidence or appeal board findings claimed not supported by same. Taken as a whole with the argument developed therefrom in appellant’s brief, we believe these questions really sought to place the essential and disputed findings of fact of the appeal board before this Court. As a consequence, we began this opinion with a review of the evidence which we feel sustains those findings.
We should, however, comment that each such question has been reviewed separately also and that we have been unable to find any prejudicial error contained therein. Indeed, to our surprise, several of the claimed material facts which appellant asserts were improperly excluded by the referee -we have found present in the record.
Affirmed. Costs to appellee.
• Dethmers, C. J., and Carr, Kelly, Smith, Black, Voelker,-and Kavanagh, JJ., concurred.
See Maxman, Trauma and Cancer, Medical Trial Technique Quarterly, Vol 4, No 4, June, 1958, p 23. | [
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Dethmers, C. J.
Plaintiff had been the wife of John Moore until they were divorced on December 6,1955. He was a subscriber of the Blue Cross Plan of defendant corporation, with family coverage under a contract entitling him, as subscriber, and his “spouse, and any unmarried children under 19 years of age legally residing with them,” (defined therein as members) to specified hospital service. His subscription rate for family coverage had been paid by him through the period ending January 31,1956. On December 23, 1955, 17 days after the divorce, plaintiff was injured in an automobile accident and admitted to a hospital, where she remained for about 2 months and received hospital care to the value of $967.50. She would be entitled to be reimbursed in that amount by defendant, if, during the period of her hospitalization, she was covered by the benefit provisions of the contract between her former husband and defendant. For that, she brought this suit, had judgment in the common pleas court' of Detroit which was reversed in circuit court, and from judgment, in the latter, of no cause for action she appeals here.
The contract between John Moore and defendant provided, inter alia, “Family coverage for children under this contract shall terminate upon marriage or at the end of the calendar year in which the age of 19 is attained.” “No person other than a member is entitled to any benefits under this contract.” “Tbe subscriber must notify tbe remitting agent or tbe service association, within 30 days, of changes in status of members under the contract resulting from marriage, divorce or death.” The contract contained no express provision as to termination in the event of the divorce of a member. John Moore notified defendant of the divorce on or about January 23, 1956, whereupon the latter notified plaintiff that she was not eligible for coverage under her former husband’s contract. It is defendant’s custom to issue a single subscriber certificate to a divorced spouse, if application therefor is made within 30 days after divorce, but no such application was made by plaintiff.
It is plaintiff’s position that she continued to be covered by the provisions of the contract and to be entitled to hospital service thereunder for a period of at least 30 days after her divorce. She says this follows from the fact that the contract makes no express provision for terminating coverage of a member-spouse upon divorce, while it does expressly specify that family coverage for member-children shall terminate upon marriage or at the end of the calendar year in which the age of 19 is attained. Such reasoning overlooks the fact that the contract -extends coverage to the subscriber’s spouse and -children and that the latter continue to be his children after their marriage or after their attainment of age 19 years, with continued benefits of coverage until the end of the calendar year when that age is •attained, and with respect to whom it is, therefore, necessary to incorporate into the contract an express provision as to when they cease to be entitled to benefits, while, on the other hand, in the case of his onetime spouse, she is no longer his spouse after the divorce and, hence, no longer within the con tract’s definition of “member” or its provisions for coverage.
Plaintiff contends that the law does not favor forfeitures, that provisions therefor should be strictly construed against the party seeking to invoke them, and that, the question of the meaning of the contract with respect to the rights of a divorced spouse of a subscriber being in doubt, it should be resolved in plaintiff’s favor. The question here is, however, not one of forfeiture but of the extent of the coverage. The meaning of the contract’s language in that respect is not doubtful. Coverage is extended to a subscriber’s spouse. "When plaintiff ceased to be a spouse she was no longer within the contract’s definition of a member or its terms of coverage.
Plaintiff points to the contract’s provision that the subscriber must notify defendant, within 30 days, of changes in status of members resulting from divorce as indicative of an intent that coverage would be continued to the member-spouse for 30 days after divorce; and she contends that the same conclusion is to be drawn from the fact that it is defendant’s custom to issue a single subscriber contract to a divorced spouse of a subscriber, if application therefor is made within 30 days after the divorce. The fact that the contract requires notice to the defendant from the subscriber within 30 days of the change of status of a member resulting from divorce, enabling defendant to keep its records current as to who are members and subject to coverage and thus protect itself against payments in behalf of those not covered, evidences no intent to extend coverage for 30 days to one who does not come within the contract’s definition of those included in the coverage. On the contrary, it confirms what the coverage provision of the contract plainly spells out, that a spouse of a subscriber is included and, a fortiori, that one who is not such spouse is not covered. Likewise, the fact that it Is defendant’s custom to issue a single subscriber contract to a divorced spouse of a subscriber, if applied for within 30 days after the divorce, is in nowise indicative of an intent to extend coverage to one who is not a spouse and who has not applied for such single subscriber contract.
The contract, by express terms, covered John Moore and his spouse. At the time in question plaintiff was not his spouse, was not a member under the definition of the contract, was not covered by its terms, and was, therefore, entitled to no benefits thereunder.
Affirmed, with costs to defendant.
Carr, Kelly, Smith, Black, Edwards, Voelker,. and Kavanagh, JJ., concurred. | [
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Carr, J.
Plaintiff brought this action in circuit court to recover damages for injuries, sustained by her in an automobile accident, which she claimed resulted proximately from the negligence of defendant Duane Neuenfeldt. Liability on the part 'of- the other defendants was asserted on the basis that one of them was the owner of the vehicle driven by Duane. On the trial of the cause in circuit court a motion to dismiss as to defendant Tessin was made and granted, and the jury returned a verdict against defendants Neuenfeldt. Motions for judgment notwithstanding the verdict and for a new trial were denied, and defendants Neuenfeldt have- appealed from the judgment entered on the verdict.
The accident in question occurred on August 9, 1950, between 8:30 and 9 o’clock in the morning. Defendant Duane, who was the minor son of Fred Neuenfeldt, was driving a Ford automobile in a southerly direction on North Gleaner road in - Saginaw county. Plaintiff was riding as a passenger in a Chevrolet car driven by her brother in a west erly direction on an intersecting highway. The vehicles came in forcible contact in the intersection, and the driver of the Chevrolet lost control thereof. In consequence said car traversed a distance of 85 feet or more following the impact, rolling over at least once while so doing. Plaintiff was thrown out and sustained serious injuries to her person. The Ford car driven by Duane proceeded across the intersection, stopping on the highway.
At the time of the trial plaintiff was unable to recall the accident or incidents pertaining thereto. There were no immediate witnesses other than the driver of the car in which she was riding and the driver of the Ford. Their versions of the occurrence, and responsibility therefor, differed widely. Duane Neuenfeldt testified, in substance, that as he approached the intersection he observed the Kube automobile, that he slowed down to a speed of between 10 and 15 miles per hour, and came to a full stop approximately 1-1/2 feet from the traveled portion of the intersecting road. He claimed further that the driver of plaintiff’s car was proceeding at a speed between 50 and 60 miles per hour, that the Chevrolet “hooked” the left end of the front bumper on the Ford, pulling that car across the road and leaving it headed in a southwesterly direction. It was his testimony that the Ford was pulled between 20 and 25 feet.
The driver of the car in which plaintiff was a passenger claimed that when he was 25 feet from the intersection the Ford was approximately 75 feet therefrom on North Gleaner road, that he concluded that he had time to pass safely through the intersection, and that he accelerated his speed somewhat in the attempt to do so. He insisted that when he •observed the Ford its rate of speed was 40 to 50 miles per hour. He stated that he expected it to slowdown but, according to his testimony, it did not do so. It was the claim of the witness that the Ford struck the Chevrolet with such force as to deflect it from its course and to cause the subsequent events.
In moving for a directed verdict on the ground that plaintiff' had failed to establish negligence on the part of the driver of the Ford, it was argued that the physical facts were such as to indicate that the collision could not have occurred in the manner claimed by plaintiff. A like argument was made in support of the motion for judgment notwithstanding the verdict, and the claim is renewed on the appeal to this Court. With reference to such facts emphasis is placed on the condition of the front bumper of the Ford following the accident. The bolt securing the left end of said bumper was broken. It is appellants’ theory that this condition resulted from the Chevrolet hooking the bumper as it passed in front of the Ford.- However, the bumper apparently was bent in rather than being pulled out, and it was a matter for the jury to consider, in determining responsibility for the accident, if the Ford car could have been pulled for a distance of between 20 and 25 feet in the manner claimed by defendants without doing greater damage to the front bumper than the proofs indicate. One of the exhibit's returned to this Court with the record is a picture of the Ford taken following the collision. From the situation thus disclosed different inferences are quite possible. In view of the conflicting testimony in the case the questions as to the negligence of defendant Duane Neuenfeldt and the proximate cause of the accident were properly left to the jury for determination.
The decisions in Blair v. Consolidated Freight Company, 327 Mich 167; and Carlson v. Brunette, 339 Mich 188, are not of controlling significance here. The facts involved in those cases are readily distinguishable from the situation in the case at bar. On the record before us it may not be said that the physical facts necessarily negatived plaintiff’s right to recover damages, or that such facts render incredible the testimony of the driver of the Chevrolet and of other witnesses who, to a certain extent, corroborated the claim of said driver as to the place where the impact occurred within the intersection.
On behalf of defendant Fred Neuenfeldt it is insisted that the motion for a directed verdict in his favor should have been granted on the ground that plaintiff had failed to establish that he was the owner of the car driven by Duane within the meaning of the Michigan vehicle code. The testimony relating to this phase of the controversy is not materially in conflict. On the 10th of July, 1950, defendant Otto Tessin was admittedly the owner of the Ford. Prior thereto, according to the testimony of Tessin on the trial, defendants Neuenfeldt had come to his home and negotiated for the purchase of the car for the «um of $75. On the date mentioned Duane and his mother came to Tessin’s home, the agreed purchase price was paid, and the car was taken by them. Tessin further testified that it was agreed that the title should be transferred to Fred Neuenfeldt, Duane being a minor. Tessin took the certificate to a notary public who filled out the assignment thereon, whereupon he mailed the instrument to the department of State at Lansing together with -the license plate registration certificate. The witness further claimed that at the time payment for the car was made he handed the certificate of title to Duane’s mother who signed her husband’s name thereon and returned it to him so that he might forward it to the State department.
It is not disputed that Tessin forwarded to Lansing the certificate of title and the registration certificate. It is likewise undisputed that the papers were received by tbe department of State. For some reason, however, not clearly established by the proofs in the case, a new certificate of title was not issued to Fred Neuenfeldt who was, as Tessin testified, designated in the assignment as transferee. The document was not returned to Tessin but was forwarded to Neuenfeldt and received by him. According to his testimony, he assumed that the envelope contained a proper certificate of title of the Ford car, issued to him by the State. The actual fact was not discovered until the latter part of October, following the occurrence ■ of the accident, when the Neuenfeldts undertook to sell the Ford. The envelope was then opened and it was discovered that it contained the certificate originally issued to Tessin. It was taken to a notary public who presumably corrected whatever error or irregularity ■existed in the document as sent in by Tessin, and returned it to the department of State. Thereupon a new certificate was issued to Fred Neuenfeldt and the sale of the car to the purchaser was completed. It is apparent from the proofs in the case that during the period within which the accident occurred said defendant considered that he was the registered owner of the Ford and that he held a properly issued certificate of title. It is his claim on appeal, however, that because no such certificate was actually issued by the department of State prior to the accident he was not the owner of the car at that time and, therefore, not liable in the present case.
The formalities prescribed by the Michigan vehicle code which must be observed by an owner transferring title to a motor vehicle are specified in CLS 1956, § 257.233 (Stat Ann 1952 Bév § 9.1933). The registration certificate must be indorsed by’ the transferor, and the name and address of the transferee-stated, with the date of transfer. AYhen so filled out the seller is required to immediately forward it to the State department. The certificate of title must likewise be indorsed with an assignment, duly notarized, and delivered to the transferee at the time possession of the motor vehicle is given. Under the ensuing section it becomes the duty of the transferee, within a period of 10 days, to present the certificate of title to the department of State, accompanied by the required fee, whereupon he is entitled to a new certificate. As before stated, Tessin forwarded the certificate, with the required fee, on behalf of the purchaser. Had the latter opened the communication to him by the department of State at the time it was received he might, and undoubtedly would, have remedied the defect preventing the issuing of a new certificate. Instead of doing so he relied on the assumption that the transfer of title to him had been effected in a proper manner, and that such transfer was indicated by a new certificate. Under the circumstances he was not entitled to a directed verdict on the ground that he was not the owner of the car driven by his son.
The action of the State department in returning the certificate of title indorsed by Tessin to Neuenfoldt, rather than to Tessin, suggests that the assignment was considered effective. Quite possibly the irregularity, or defect, was in the application by the transferee for the issuance of a new title. It is unfortunate that the record does not disclose the exact situation in this regard. However, based on the facts that are established, it would appear that the case of Fleckenstein v. Citizen’s Mutual Automobile Insurance Company, 326 Mich 591, is in point. Involved there was an attempted transfer by the plaintiff to his son of the title to an automobile. Originally such title had been taken in plaintiff’s name because the son was a minor. After the son became of age, plaintiff assigned to him the certificate of title and made dne delivery thereof. The ear at the time was in the possession of transferee. The document was then sent to the department of State, but no new certificate was issued to the son because he had neglected to sign the provision printed on the hack of the certificate requesting the issuance of a new title to him. For that reason the certificate of title was returned to the transferee, as in the case at bar. It was not again forwarded to the department of State. Commenting on the situation presented, it was said (p 597) :
“If the testimony in behalf of plaintiff is accepted, in 1942 plaintiff transferred the title of the Chevrolet automobile to his son Delmar. There is nothing-in this record indicating- that such title was ever retransferred to plaintiff. It follows that plaintiff was not the owner of the Chevrolet automobile at the time of the 1946 accident.”
The holding in the case on the point in question is summarized as follows:
“When a properly assigned certificate of title of a motor vehicle is delivered by the owner to the vendee in possession, title passes, notwithstanding there is delay in forwarding the certificate to the secretary of State.” (Syllabus 1.)
“Where minor son purchased a car with title taken in name of plaintiff, and after son reached majority, title was properly assigned to son although new title was not issued to him because of his failure to execute application therefor properly but the title was not retransferred to the father, the latter was not then the owner of the car (CL 1948, § 256.103).” (Syllabus 3.)
In the case at bar the testimony of Tessin as to the transfer and delivery of the certificate of title is not in dispute. In forwarding said certificate with the registration certificate to the department of State lie was acting on behalf of the transferee, to whom said certificate was returned. At the time of the accident defendant Fred Neuenfeldt had such certificate in his possession. The delay in issuing a new certificate was chargeable to him. Under the undisputed facts in the case the conclusion follows that Tessin made a valid transfer of his title to defendant Fred Neuenfeldt, who was in consequence the owner at the time of the accident. Seppala v. Neal, 323 Mich 697, is not in point because of testimony there introduced tending to show that the certificate of title was not delivered to the transferee until after the accident involved in the case.
The motion for a new trial was predicated, in part, on the claim of newly-discovered evidence coming to the knowledge of appellants after the determination of the case in circuit court. On the trial one of plaintiff’s witnesses, who reached the scene shortly after the accident, claimed to have overheard a conversation between Duane Neuenfeldt and a deputy sheriff investigating the occurrence, in which Duane undertook to deny that he had struck the Kube car. In support of the claim of newly-discovered evidence, there was attached to the motion the affidavit of John Spindler in which deponent stated that the witness in question could not have overheard any conversation between the deputy sheriff and the drivers of the automobiles involved, and that he at no time saw the witness and Duane engaged in any conversation. It thus appears that the purpose of the newly-discovered evidence is to impeach the testimony of one of plaintiff’s witnesses, and perhaps to contradict another. Duane testified at some length in the case, and covered the matters referred to in the affidavit. Thus if Spindler had been a witness his testimony would have been merely cumulative to that of Duane and, as noted, offered solely to impeach the testimony of .plaintiff’s witness. Under these circumstances the trial court was not in error in denying the motion.
We conclude that the trial court did not commit prejudicial error in any of the respects claimed by appellants. In consequence the judgment entered on the verdict of the jury is affirmed. Plaintiff may have costs.
Dethmers, C. J., and Kelly, Smith, Black, Edwards, Yoelker, and Kavanagh, JJ., concurred.
PA 1949, No 300 (CLS 1954, § 257.1 et seq., Stat Ann 1952 Bev § 9.1801 et seq.). | [
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Voelker, J.
During the depression of the 1930’s the plaintiff Max Latowitz owned a mortgaged house in Detroit. By 1934 he had fallen 2 years behind in his mortgage payments and he sought out and prevailed upon the defendant and her husband to buy the property so that he would not lose it by foreclosure. At the time plaintiff was about 55 years old and in good health and lived in an unfinished, unheated attic room, renting the remainder of the house to others.
Plaintiff executed a warranty deed in the usual form to the defendants, Edward (deceased at time of this action) and Bernice Tomaszewski, who were then approximately 22 and 20 years of age, respectively. The deed was promptly recorded by Edward. At the same time a separate agreement was executed by Edward and Bernice wherein they agreed to provide plaintiff with a room in the attic as long as he lived (or in their own home if they sold the property), and to pay his burial expenses when he died. The deed made no mention of the separate instrument or of any of the promises made therein. This agreement was not recorded with the register of deeds until the plaintiff did so on September 29, 1949, some 15 years after the execution and recording of the deed.
After the transfer of the property to them the defendant and her deceased husband paid up the mortgage and made substantial improvements to the property. They rented a portion of the property to others until 1944 when they themselves moved into it. In the meantime the plaintiff lived in his attic until 1945 when he left and moved into his sister’s home. He later returned to his attic for a short while but left again, keeping his furniture and other personal effects therein until about 1951.
In this action plaintiff claims that there had been a breach of the agreement by the defendant and her late husband, and therefore a failure of consideration, and, hence, that the deed executed in 1934 should be cancelled and set aside and defendant should reimburse plaintiff for moneys spent for lodging elsewhere since defendant and her deceased husband breached the agreement by ousting him from his attic. The trial court found and ruled that there was such a breach of the agreement and gave money damages to plaintiff to the extent of $5,700 (including burial expenses), plus $300 attorney fees and costs.
In review of this case we deem the first and primary question to be answered is whether there was any breach of the agreement. In order to answer that question we must find the answer to a further question: did the evidence below support the plaintiff’s claim of an eviction upon which his claimed breach of the agreement rested 1
The only evidence supporting plaintiff’s claim of eviction is his own unsupported testimony that the defendant Bernice Tomaszewski asked or ordered him out of the house. That was his story and he stuck to it. This was denied, however, by the defendant, and still other witnesses who appeared for the defendant (some of whom were related to plaintiff) testified that he was asked to stay. There was also affirmative testimony that the real reason plaintiff left defendant’s attic and moved to his sister’s house was largely at the request of his sister and her daughter, so that the sister would not be left at home alone in the evenings following the daughter’s planned early departure from the State.
For the purpose of this decision we may assume, without deciding, that plaintiff’s unsupported testimony is true, and that he was in fact ordered to leave the premises by the defendant, Bernice Tomaszewski, as he claims and she denies. Even if true, this is not sufficient to support his claim of eviction. We have held in Michigan that a mere request that one leave the premises does not constitute an eviction. Donald v. Faulds, 302 Mich 331, citing an earlier case. This view also finds sunport in an annotation in 14 ALR2d 1450, 1451, citing Faulds and the earlier case, as follows:
“There is some authority to the contrary, but the prevailing view would seem to be that a mere notice to the tenant to quit, followed by his vacation of the premises, is not of itself sufficient to constitute an eviction.”
The case cited in Faulds (Lawrence v. Rapaport, 213 Mich 358) holds that an admitted order to quit the premises by the landowner to the tenant which is rescinded before the tenant has in fact vacated is not an eviction. Although we recognize that the lease in the Rapaport Case represents the more normal landlord-tenant arrangement, we think the situation in the ease before us, in which the plaintiff, in effect, was given a lease on the attic room for life in return for the consideration stated in the written agreement, is no different in principle and is thus subject to the same rule of law.
In the present ease the proofs show that, whatever may have happened before, when the defendant and her deceased husband had just returned from the hospital — Edward paralyzed from an industrial accident (from which he later died) and Bernice with a newborn baby — they implored the plaintiff to continue to stay and live with them. Instead he left, that very night, and in these circumstances we do not think his departure was the result of an eviction under Michigan law. Thus .there was no breach of the agreement on this score.
As noted, the trial judge in his decree included an allowance for the claimed partial breach of the agreement to bury the plaintiff — this doubtless on the generally sound theory that when equity once assumes jurisdiction it will proceed to do what it must to accord complete equity and finally conclude the controversy. In view of our decision on the eviction, however, we are afraid the entire award must be set aside. Taken alone as a ground for relief, there can scarcely be any breach of the condition to bury the plaintiff until he dies, and we suspect that the police might become a little curious if the defendant undertook to perform this condition before the plaintiff expired.
In this case the plaintiff’s proofs simply fail to support his case for equitable relief, and the added factors of elapsed time and the substantial improvements made by the defendant do little to change our view. We are aware that in some cases of this type equity has nevertheless allowed some measure of relief even though no actual breach was found to exist. A careful reading of those cases, however, will disclose residual and compelling equities which do not exist in this case. Here the plaintiff sought and got help when times were tough, and we do not think that years later he should be permitted to escape his own undertakings partially or completely on the slender proofs submitted. For a more complete discussion of this area of our problem, see McLean v. Wortman, 353 Mich 458.
The decree below must, therefore, be reversed and set aside and a decree dismissing the bill entered here, with costs to the defendant.
Smith, Black, Edwards, and Kavanagh, JJ., concurred with Voelker, J.
Dethmers, C. J., and Carr and Kelly, JJ., concurred in the result. | [
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Edwards, J.
This proceeding is a collateral attack in chancery in the circuit court for Kalamazoo county upon a guardianship order entered in the probate court for the county of Kent.
The circuit judge dismissed the bill of complaint holding that it failed to state a cause of action. In our review, we accept as true all well-pleaded facts contained therein. Schantz v. Ruehs, 348 Mich 680; Witt v. Tourn-A-Grip Co., 330 Mich 151; Stone v. Yost, 319 Mich 323.
These allegations include the following:
On October 21, 1955, plaintiff was committed to the Kalamazoo State hospital by an order of admission signed by the judge of probate of the cóunty of Kent. Thereafter and on November 8, 1955, the probate court for the county of Kent determined the plaintiff; to be mentally incompetent, and appointed plaintiff’s son, the defendant here, guardian both of the person and of the estate of the plaintiff.
In subsequent habeas corpus proceedings in the circuit court of Kalamazoo county the order of commitment of October 21,1955, was declared to be void.
In the instant suit, also brought in the circuit court for Kalamazoo county, plaintiff prays that the court decree that the order appointing the defendant Emerson as guardian on November 8, 1955, is void, and that such order should be vacated and set aside. The plaintiff also prays that the defendants be directed to render an accounting to the plaintiff.
The plaintiff claims present residence in Kalamazoo and asserts a strong distaste for litigating in Kent county.
Additionally, it should be stated that plaintiff attaches to his bill of complaint a portion of the transcript of testimony of defendant Jack R. Emerson at the guardianship hearing before the Kent county probate judge in which Emerson said that he had seen his father twice since his commitment to the hospital, that he was quieter, but that he still tallied irrationally.
The circuit judge who dismissed this appeal did so on the following grounds:
“It is my opinion that the amended bill of complaint falls short of stating a cause of action.
“It is my further opinion after a careful consideration of this matter and listening to the arguments of counsel and considering the briefs filed that there can be no question but that the plaintiff has an adequate remedy at law and does not need to resort to a chancery action in this court to have his rights accorded him.
“It is my further considered opinion that he fails to plead or show that he will suffer any loss. It should be noted in this regard that in the order which he attacks the guardian is required to file a bond in the amount of $10,000. He is amply protected from any wrongful actions that he may suffer at the hands of his guardian. I am firmly convinced that this court has no jurisdiction in this action in this circuit to review the order of the probate court for the county of Kent determining the plaintiff to be incompetent and appointing on his behalf a guardian. * * * The order appointing the guardian does not appear on the face of the pleading to be irregular, void or otherwise improper. If the plaintiff has an action, his entire action is based upon an allegedly void or improper order adjudging him-to be incompetent and his pleading with the documents attached thereto indicate a proper order rather than an improper order. There would appear to be a basis for the order made by the probate court that the plaintiff is incompetent. It would appear that he took testimony.”
This Court had occasion recently to affirm dismissal of a hill of complaint stating a somewhat similar situation in Schantz v. Ruehs, supra. It should he noted that in the 8chants Case the commitment order had not been, as here, successfully attacked in habeas corpus proceedings. In the instant proceedings, however, the bill of complaint and exhibits attached show that the guardianship order was regular on its face, and was entered at a hearing where testimony bearing on competence was taken. From what has been said to this point, it is obvious that the probate court of Kent county had jurisdiction of the person and the subject matter, and authority to enter the guardianship order. CL 1948, §-7.01.19 (Stat Ann 1943 Kev §27.3178 [19]); CL 1948, § 703.1 (Stat Ann 1957 Cum Supp §27.3178 [201]).
Appellant relies upon certain eases wherein chancery courts have set aside orders of the probate courts, held void for lack of jurisdiction or fraud. Prince v. Clark, 81 Mich 167; Lothrop v. Duffield, 134 Mich 485; Babcock v. Babcock, 150 Mich 558. The answer to this contention is, of course, that the circuit judge in this instance (and we think properly) held that the bill of complaint made no showing that the probate court order was void. The probate court had jurisdiction, and no fraud is alleged.
Probate court orders, regularly entered and unappealed, are res judicata as to the issues there disposed of. Such orders, generally, are not subject to collateral attack. Chapin v. Chapin, 229 Mich 515; Snyder v. Potter, 328 Mich 236; Burnett v. Goodyear, 329 Mich 214.
Further, plaintiff has an adequate remedy at law in a petition for discharge of the guardian. CL 1948, § 703.23 (Stat Ann 1943 Rev § 27.3178[223]); In re Swisher’s Estate, 324 Mich 643.
The probate court of Kent county having assumed jurisdiction of the subject matter in controversy retains it until the guardianship is terminated. CL 1948, §701.21 (Stat Ann 1943 Rev § 27.3178[21]): Schultz v. Carlson, 313 Mich 432: Second National Bank & Trust Co. v. Wayne Circuit Judge, 321 Mich 28; 1 Callaghan’s Michigan Pleading and Practice, § 14.21. This includes hearing the petition for discharge of the guardian. Full rights of appeal are provided in the event of any abuse of the probate court’s discretion. CL 1948, § 701.36 et seq. (Stat Ann 1943 Rev § 27.3178[36] et seq.).
Affirmed. Costs to appellees.
Dethmers, C. J., and Carr, Kelly, Smith, Black, Voelker, and Kavanagh, JJ., concurred. | [
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Boyle, J.
I
In these cases we are asked to construe the Michigan kidnapping statute. MCL 750.349; MSA 28.581 provides:
"Any person who wilfully, maliciously and without lawful authority shall forcibly or secretly confine or imprison any other person within this state against his will, or shall forcibly carry or send such person out of this state, or shall forcibly seize or confine, or shall inveigle or kidnap any other person with intent to extort money or other valuable thing thereby or with intent either to cause such person to be secretly conñned or imprisoned in this state against his will, or in any way held to service against his will, shall be guilty of a felony, punishable by imprisonment in the state prison for life or for any term of years.” (Emphasis added.)
In form, the statute describes various types of conduct which must be done "wilfully, maliciously and without lawful authority” to constitute kidnapping. After listing the various forms of conduct, the statute describes several forms of intent.
The issue before us is whether the language of the statute emphasized above (the "intent section”) applies to all of the forms of conduct which precede it or applies only to the form of conduct which immediately precedes it, i.e., "forcibly seize or confine, ... or inveigle or kidnap.”
We hold that the "intent section” of the statute applies only to the form of conduct which immediately precedes it.
Thus, a person can be convicted of kidnapping if it is proven beyond a reasonable doubt that he or she wilfully, maliciously, and without lawful authority,
(a) forcibly or secretly confined or imprisoned any other person within this state against his will, or
(b) forcibly carried or sent such person out of this state, or
(c) forcibly seized or confined, or inveigled or kidnapped any other person
(1) with intent to extort money or other valuable thing thereby, or
(2) with intent either
(A) to cause such person to be secretly confined or imprisoned in this state against his will, or
(B) [to cause such person to be] in any way held to service against his will.
Interpreted in this manner, we conclude that the statute includes several forms of "kidnapping” within its definition.
A
The portion of the statute contained in (a) above actually contains two separate descriptions of punishable conduct: forcible confinement or imprisonment and secret confinement or imprisonment. The forcible confinement section of the statute in (a) above, taken by itself, describes the common-law misdemeanor offense of false imprisonment:
"False imprisonment, sometimes called false arrest, is the unlawful confinement of a person. It results from any unlawful exercise or show of force by which a person is compelled to remain where he does not wish to remain or go where he does not wish to go. It is a common-law misdemeanor.” Perkins, Criminal Law (2d ed), p 171.
It is the forcible confinement section of the statute which formed the basis for the charge in People v Otis Adams, 34 Mich App 546; 192 NW2d 19 (1971). As Justice Levin there carefully noted: "the people do not charge that the victim was secretly confined.” In forcible confinement, "an asportation or movement. . . is an essential element; [in secret confinement] movement is not an element, but secrecy of the confinement is required,” 34 Mich App 551.
The distinction between false imprisonment (forcible confinement) and secret confinement kidnapping is that the former describes an unlawful seizure of a person against his will; the latter is an unlawful seizure and detention of the person secretly against his will.
A forcible confinement kidnapping charge presents the most difficulties for several reasons. First, by its inclusion in the statute, it elevates a common-law misdemeanor to an offense punishable by life imprisonment. Second, as Justice Levin correctly pointed out while serving on the Court of Appeals:
"It is obvious that virtually any assault, any battery, any rape, or any robbery involves some 'intentional confinement’ of the person of the victim. To read the kidnapping statute literally is to convert a misdemeanor, for example, assault and battery, into a capital offense.” Otis Adams, 34 Mich App 560.
Third, because of the first two factors, this section of the kidnapping statute could be used by prosecutors as a vehicle for overcharging a defendant:
"A literal reading of the kidnapping statute would permit a prosecutor to aggravate the charges against any assailant, robber, or rapist by charging the literal violation of the kidnapping statute which must inevitably accompany each of those offenses.” Id.
In order to preserve the forcible confinement section of the kidnapping statute from a charge of unconstitutionality, this Court has interpolated the element of asportation in connection with it. People v Adams, 389 Mich 222, 237-238; 205 NW2d 415 (1973).
The Court in Adams held that in connection with forcible confinement, asportation must be more than merely incidental to a lesser underlying crime. In other words, if the movement of the victim, the asportation, was merely incidental to the underlying crime, for example, of felonious assault, it would not be sufficient asportation to support a conviction of kidnapping.
In People v Barker, 411 Mich 291, 301; 307 NW2d 61 (1981), this Court applied the Adams asportation requirement in the context of a charge of first-degree criminal sexual conduct, MCL 750.349; MSA 28.581, a crime which involves punishment equal to that imposed for kidnapping. The Court said:
"In all cases where the charge is kidnapping, except as noted in Adams, in order to find defendant guilty, the factfinder must be satisfied that there was movement sufficient to satisfy the asportation requirement or its equivalent. Where applicable, the asportation element is crucial, regardless of the length of punishment mandated by the Legislature.” (Emphasis added.)
The Court did not, however, overrule or disapprove of the following statement found in People v Adams, 389 Mich 238:
"If the underlying crime involves murder, extortion or taking a hostage, movement incidental thereto is generally sufficient to establish a valid statutory kidnapping.”
See Barker, 411 Mich 300, fn 5. Thus, Barker did not stand for the proposition that movement incidental to a crime involving murder is not sufficient asportation to support a statutory kidnapping conviction.
This interpretation is entirely consistent with the underlying rationale for the asportation requirement. As detailed by this Court in Adams, 389 Mich 230-235, the asportation element was necessary to distinguish "true kidnapping” from other crimes which carry less punishment and to protect against overcharging by prosecutors. See also People v Levy, 15 NY2d 159; 256 NYS2d 793; 204 NE2d 842 (1965), and People v Lombardi, 20 NY2d 266; 282 NYS2d 519; 229 NE2d 206 (1967).
But the asportation requirement was not designed to be applied indiscriminately to situations which do not present the evils which ought to be prevented:
"Moreover, the rule has no purpose of ignoring as independent crimes alternative or optional means used in committing another crime which, by the gravity and even horrendousness of the means used, constitute and should constitute a separately cognizable offense. Nor was the Levy-Lombardi rule intended to exclude from the ’traditional’ or 'conventional’ kidnapping abductions designed to effect extortions or accomplish murder.” People v Miles, 23 NY2d 527, 539-540; 297 NYS2d 913; 245 NE2d 688 (1969). (Emphasis added.)
We are persuaded that it is completely appropriate to hold that movement incidental to a crime involving murder, extortion, or taking a hostage is sufficient for kidnapping because such conduct does not present the danger of overcharging.
Therefore, when an information charges an offense under the forcible confinement part of the kidnapping statute designated as section (a) above, the following elements must be proved beyond a reasonable doubt:
(1) a forcible confinement of another within the state,
(2) done wilfully, maliciously and without lawful authority,
(3) against the will of the person confined or imprisoned, and
(4) an asportation of the victim which is not merely incidental to an underlying crime unless the crime involves murder, extortion or taking a hostage. Asportation incidental to these types of crimes is sufficient asportation for a kidnapping conviction.
However, as previously noted, no movement is required where the victim was secretly confined, Perkins, supra, p 178.
B
The portion of the statute denominated (b) above defines historical common-law kidnapping. "Any person who wilfully, maliciously and without lawful authority . . . shall forcibly carry or send such person out of this state . . . shall be guilty” of kidnapping. As mentioned above, the crime is complete with the forcible asportation of the victim across the state boundary.
C
Section (c) of the outline of the statute produced above describes three additional forms of conduct punishable as kidnapping. The first of these is "[a]ny person who wilfully, maliciously and without lawful authority . . . shall forcibly seize or confine, or shall inveigle or kidnap any other person with intent to extort money or other valuable thing thereby . . . shall be guilty” of kidnapping.
This, of course, is kidnapping for ransom. It is regarded as one of the gravest of crimes and is appropriately punishable as a capital offense. See Perkins, Criminal Law (2d ed), p 180. Because it does not involve the dangers of inappropriate punishment or overcharging, there is no reason to interpolate asportation as an element when the charge is based on this portion of the statute.
The second form of conduct punishable as kidnapping under this section of the statute describes kidnapping with the intent to secretly confine. "Any person who wilfully, maliciously and without lawful authority . . . shall forcibly seize or confine, or shall inveigle or kidnap any other person . . . with intent... to cause such person to be secretly confined or imprisoned in this state against his will . . . shall be guilty” of kidnapping. (Emphasis added.)
The elements of a charge under this section of the statute are:
(1) a forcible seizure, confinement, inveigling or kidnapping of another,
(2) done wilfully, maliciously and without lawful authority,
(3) with the intent to cause such person to be secretly confined or imprisoned within the state against his will.
Since this form of kidnapping does not present dangers of overcharging or inappropriate punishment, it is not necessary to interpolate asportation as an element. Although no movement is needed to establish the offense under (1) above, the proofs must establish a purpose to cause such secret confinement. Indeed, as Justice Kavanagh opined in his concurring opinion in People v Barker, 411 Mich 303:
"The overbreadth we feared in Adams is avoided by insisting on proof of the intent specified in the statute as the ultimate purpose of the criminal act. So interpreted the statute would not elevate a misdemeanor to a felony as we feared in Adams. See 389 Mich 222, 232-233.” (Emphasis in the original.)
We agree with the implicit suggestion by Justice Kavanagh that a specific intent requirement obviates the need to read an asportation element into the statute. The intent to cause the victim to be secretly confined substitutes for the requirement of asportation. See Perkins, Criminal Law (2d ed), p 178.
The third form of conduct punishable under this section of the statute is kidnapping with the intent to hold to service. "Any person who wilfully, maliciously and without lawful authority . . . shall forcibly seize or confine, or shall inveigle or kidnap any other person . . . with intent ... to cause such person to be ... in any way held to service against his will, shall be guilty” of kidnapping. For the same reasons as outlined above, the specific intent requirement makes an element of asportation unnecessary.
In summary, asportation is required as an element of kidnapping only where the charge is forcible confinement (a). Where the charge is secret confinement (b), or forcible seizure, or forcible confinement with intent to secretly confine (c), asportation is not an element of the offense.
II
To summarize what has been stated above, the kidnapping statute sets punishment for six separate variations of conduct. The evidence presented in each of the cases at bar must be examined in order to assess the accuracy of the instructions in each case.
As the facts detailed in Justice Kavanagh’s opinion indicate, the record in each case shows only that the parties proceeded on a theory of what has been characterized here as false imprisonment kidnapping. See part I-A. Therefore, the jury instructions in each case must be examined to determine if they fairly and accurately apprised the jury of the elements of false imprisonment kidnapping hy forcible confinement.
Wesley
The trial court instructed the jury on the kidnapping charge as follows:
"For the crime of kidnapping the prosecutor must prove each of the following elements beyond a reason able doubt; any person who shall wrongfully, intentionally and forcibly confine another person against her will and move her from one place to another or cause her to be moved from one place to another is guilty of the crime of kidnapping. Mr. Wesley pled not guilty to that charge.
"And to establish the charge of kidnapping, the prosecutor must prove each of the following elements beyond a reasonable doubt: first, the victim, Carol Agee, must have been forcibly conñned or imprisoned. Second, that such must have been done against her will and without lawful authority. Third, that during the course of such confinement the defendant must have forcibly moved or caused the victim to be moved from one place to another for the purpose of abduction and kidnapping. Such movement is not sufficient if it’s part of a crime other than kidnapping. In this case, for instance, you should consider whether the movement was for the purpose of kidnapping or whether it was a part of the crime of murder.
"In determining whether or not the movement was for the purpose of kidnapping, you may consider whether the movement was for a few feet or for a substantial distance and whether it added any greater danger or threat to the victim than the crime of murder. If the underlying crime involves murder, movement incidental to that is generally sufficient to establish a valid statutory kidnapping. However, the evidence must convince you beyond a reasonable doubt that there was movement independent of the other crime and that it was for the purpose of kidnapping.
"Fourth, at the time of such confinement the defendant must have intended to kidnap the. victim. And fifth, that at the time of such confinement the defendant must have been acting wilfully and maliciously.
"Wilful and malicious means that the defendant intentionally confined the victim knowing such confinement to be wrong and that it was done without legal justification or excuse.” (Emphasis added.)
When these instructions are examined in light of the elements of false imprisonment kidnapping, it is clear that the jury was adequately instructed on all of the elements of the crime. The jury was told that the victim must have been forcibly confined against her will, and that the defendant must have acted wilfully, maliciously, and without lawful authority.
The jury was also correctly instructed on the element of asportation. It was told that the victim must have been moved from one place to another for the purpose of abduction and kidnapping, but that movement incidental to an underlying crime involving murder was sufficient.
There is no error contained in these instructions that requires reversal. The jury was properly instructed on the elements of false imprisonment kidnapping and that movement incidental to the underlying crime of murder was sufficient. Therefore, defendant Wesley’s conviction of first-degree felony murder, with kidnapping as the underlying felony, must stand.
Taormina, Gerald Phillips, and Phillip Phillips
In connection with these defendants, the trial court instructed the jury in pertinent part as follows on the kidnapping charges:
"The elements or instructions with regard to kidnapping are as follows: Any person who shall wrongfully, intentionally and forcibly confine another person against his will and move him from one place to an other or cause him to be moved from one place to another is guilty of this crime. The defendant pleads not guilty to this charge.
"To establish this charge the people must prove each of the following elements beyond a reasonable doubt. First, that the victim, J. P., or also known as James Grinwis, must have been forcibly conñned or imprisoned. Second, the victim must have been so confined or imprisoned against his will and without lawful authority. Third, during the course of such confinement the defendant must have forcibly moved or caused the victim to be moved from one place to another for the purpose of abduction and kidnapping. Such movement is not sufficient if it is part of a crime other than kidnapping.
"In this case, for instance, you should consider whether or not the movement was for the purpose of kidnapping or whether it was a part of the crime of felonious assault.
"I will describe felonious assault to you in a few minutes. In determining whether or not the movement was for the purpose of kidnapping, you may consider whether the movement was for a few feet or whether it was for a substantial distance and whether it added any great danger or threat to ihe victim than the crime of felonious assault, however, the evidence must convince you beyond a reasonable doubt that there was a movement independent of the other crime and that it was for the purpose of kidnapping.
"Fourth, that at the time of such confinement the defendant must have intended to kidnap the victim. You will recall the instructions on specific intent which I said applies also to this charge of kidnapping.
"Fifth, at the time of such confinement the defendant must have been acting wilfully and maliciously. Wilfully and maliciously means that the defendant intentionally confined the victim knowing such confinement to be wrong and that he did so without legal justification or excuse.” (Emphasis added.)
These instructions correctly informed the jury of the elements of false imprisonment kidnapping. There is no error in these instructions which would support reversal of the defendants’ convictions.
Threet and Dopp
The trial court gave the following charge to the jury on the kidnapping count:
"To establish this charge the prosecution must prove each of the following elements beyond a reasonable doubt.
"First, the victim, John Korzek, must have been forcibly seized, conñned, or imprisoned.
"Second, the victim must have been so confined against his will.
"Third, during the course of such confinement the defendant must have forcibly moved the victim or caused him to be moved from one place to another for the purpose of abduction and kidnapping.
"Fourth, at the time of such confinement the defendant must have intended to so kidnap or confine the victim.
"Fifth, in addition such kidnapping must have been done with the intent to confine or imprison the victim in this state; cause him in some way to be held for service against his will, or to murder the victim.
"Sixth, at the time of such confinement the defendant must have been acting wilfully and maliciously. Wilfully and maliciously means that the defendant intentionally confined the victim, knowing such confinement to be wrong; and that he did so without legal justification or excuse.” (Emphasis added.)
These instructions correctly informed the jury that in order to convict the defendants it must find that the victim had been forcibly confined against his will and that the defendants must have acted wilfully, maliciously and without legal justification or excuse.
The Court of Appeals found error requiring reversal in the portion of the trial court’s instruction which related to the asportation element:
"In the instant case, the trial court’s instructions were deficient under Barker. While the court told the jury in paragraph three of its kidnapping charge that the movement must be for the purpose of abduction and kidnapping, it did not go on to inform the jury what movement would be insufficient to sustain a kidnapping charge as CJI 19:1:01 does. More importantly, paragraph five of the kidnapping charge specifically allowed the jury to base a conviction on a finding that the abduction was committed to murder the victim. Thus, the charge suffered from the same basic defect that rendered the charge in Barker fatally erroneous. That is, it allowed the jury to base a kidnapping conviction on a finding that the movement was either for the purpose of kidnapping the victim or to commit the crime of assault with intent to murder.” Unpublished opinion per curiam of the Court of Appeals, decided on March 24,1982 (Docket Nos. 54352, 55305).
However, as the discussion of the asportation element above indicates, the Court of Appeals misapplied Barker. Barker, when read in connection with Adams, does not change the rule that movement of the victim incidental to an underlying crime which involves murder is sufficient asportation to support a kidnapping conviction. An underlying charge of assault with intent to commit murder is certainly a crime involving murder. Thus, there was no error in the charge attributable to the fact that the jury could have based its kidnapping conviction on movement incidental to the crime of assault with intent to commit murder. Accordingly, the kidnapping convictions of these defendants must be reinstated.
For the reasons stated above, we affirm the judgment of the Court of Appeals in Wesley, Taormina, Gerald Phillips, and Phillip Phillips and reverse the judgment of the Court of Appeals in Threet and Dopp, reinstating the judgments of the trial court. We find the assignments of error by Threet and Dopp as cross-appellants to be without merit, and we decline to address issues not raised in the Court of Appeals.
Williams, C.J., and Ryan and Brickley; JJ., concurred with Boyle, J.
This view is not inconsistent with the holding of People v Bergevin, 406 Mich 307, 311; 279 NW2d 528 (1979). That case recognized that the kidnapping statute contained alternative definitions of the crime, but held that each of these alternative formulations did not constitute a separate and distinct crime for purposes of trial, conviction, sentencing, and double jeopardy.
Although the holding in Adams was constitutionally based, the false imprisonment portion of the kidnapping statute is not the same as the completely standardless provision struck down in Giaccio v Pennsylvania, 382 US 399; 86 S Ct 518; 15 L Ed 2d 447 (1965). Other jurisdictions which have limited the scope of their kidnapping statutes by interpolating asportation as an element have done so by relying on principles of statutory interpretation. See, e.g., People v Levy, 15 NY2d 159; 256 NYS2d 793; 204 NE2d 842 (1965). Moreover, jurisdictions such as Wisconsin have read common-law kidnapping as beyond the scope of their statute because their Legislature had otherwise specifically criminalized false imprisonment as a misdemeanor, an option the Michigan Legislature has not undertaken.
It is unclear whether Barker and the companion cases also involved charges of what has been labeled here as false imprisonment kidnapping. What is clear is that they did not proceed on a theory of secret confinement or of forcible confinement with intent to secretly confine. See discussion in Section C infra. To the extent that Barker has been understood to require asportation where the charge is secret confinement or forcible confinement with intent to secretly confine, that understanding is erroneous.
In its holding in Barker, the Court seems to have departed from the intellectual underpinning of Adams, the need to prevent prosecutorial overcharging. We are not presented in these cases with underlying crimes involving equal punishment which do not also involve murder. Therefore we are not called upon to reexamine this aspect of Barker.
See also People v Otis Adams, 34 Mich App 550-551:
"There are two basic kidnapping patterns. In one, the victim is seized and removed to another place; in the other, the victim is confined in the place where he is found. In the first, an asportation or movement of the victim is an essential element; in the second, movement is not an element, but secrecy of the confinement is required.”
Although it appears that Justice Levin made this statement in the context of a discussion of secret confinement as a form of conduct (see discussion of false imprisonment section of the statute, supra, pp 3-7), the rationale is equally applicable to an intent to cause secret confinement. Movement of the victim may be involved under a particular set of facts, but it is not an essential element of the crime.
In each of these cases, the trial court instructed the jury that the specific intent to kidnap was an element of the crime charged. As indicated above, false imprisonment kidnapping is not a specific intent crime. However, defendant cannot complain concerning an error in a jury instruction which required more proof from the prosecutor than is necessary as a matter of law.
The same rationale applies to preclude defendant from complaining that the instruction seems to indicate at one point that asportation incidental to murder was not sufficient for kidnapping.
As in the Wesley, Taormina, and Phillips’ cases, defendants here cannot claim error in connection with a specific intent instruction which was not required. See fn 6.
When the rationale for the asportation rule is examined, there is no principled reason why a different rule should apply to a defendant who acts with the intent to murder, but who is unsuccessful in bringing that intent to fruition by causing the death of the victim. See discussion supra, pp 4-6. Indeed, in People v Miles, supra, in which the murder-kidnapping asportation rule was articulated, the victim was not killed. | [
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Moore, J.
This is a bill of complaint filed February-25, 1921, for specific performance. John LaLonde is the son of the defendant. Lea LaLonde is* the wife of John.
The chancellor made a decree reading in part as follows:
“It appears to the court by such pleadings and proofs that some such agreement as mentioned in the bill of complaint in this cause made by and between said plain-, tiffs and Julian LaLonde, deceased, and the defendant on or about the 24th day of June, 1902, whereby deceased and defendant agreed that title to the land and premises described as * * * containing five acres of land, more or less, was to pass to plaintiff John LaLonde at the death of the survivor of Julian. LaLonde and defendant, and that plaintiffs in consideration thereof were to live with deceased and defendant and work said described land and other land, belonging to deceased and defendant. * * *
“Now therefore in consideration thereof, it is; ordered, adjudged and decreed and this court doth hereby order, adjudge and decree that the title in and to said real estate remain in statu quo till the death of said defendant and that in the meantime the said plaintiffs continue to perform their part of such agreement till the death of defendant in so far as they may not be prevented from so doing by the defendant.”
Both parties have appealed.
The counsel for the defendant contend there are two legal questions involved:
“(1) Was John LaLonde a competent witness to prové the claimed agreement with Julian LaLonde, or in other words, is such testimony prohibited by section 12558, 3 Comp. Laws 1915?
“ (2) Inasmuch as it is undisputed that the premises described in the bill of complaint were the homestead of defendant, any agreement made by Julian LaLonde during his lifetime was void, because of the failure of Antoinette LaLonde to join therein in writing as required by the provisions of section 2, article 14 of the Michigan Constitution.”
In the reply brief for the plaintiffs counsel says:
“Plaintiffs desire the relief prayed for in their bill of complaint, viz.:
“That the court decree defendant to be the owner of a life estate in the real estate described in the bill of complaint, and the plaintiffs the owners of the remainder in fee therein.
“If defendant’s contention that the contract was void because it lacked the wife’s signature and it concerned the homestead, must prevail, then the plaintiffs respectfully pray that a decree be entered allowing them compensation for services and improvements and giving them a lien on the real estate in question for such allowances over and above the homestead exemption.” Citing Fleming v. Fleming, 202 Mich. 615, and Klett v. Klett, 175 Mich. 224.
There is no averment in the bill of complaint that the five acres mentioned exceed the value of the homeistead exemption as fixed by the Constitution.
Section 2, article 14, of the present Constitution of Michigan, reads in part as follows:
“Such exemption shall not extend to any mortgage thereon lawfully obtained, but such mortgage or other alienation of such land by the owner thereof, if a married man, shall not be valid without the signature of his wife' to the same.”
This provision of the Constitution has been construed by this court many times. Some of the cases are cited in the notes to the constitutional provisions found in 1 Comp. Laws 1915 at pages 190 and 248. It has been repeatedly held that the homestead could not be alienated without the written assent of the wife. See Township of Jasper v. Martin, 161 Mich. 336 (137 Am. St. Rep. 508); Holley v. Horton, 164 Mich. 31; Way v. Root, 174 Mich. 425; Klett v. Klett, 175 Mich. 224; Agar v. Streeter, 183 Mich. 600 (L. R. A. 1915D, 196, Ann. Cas. 1916E, 518); and we think it must be so held in the instant case. It is unnecessary to pass upon the other questions suggested by counsel.
A decree may be entered dismissing the bill of complaint, without prejudice, with costs to the defendant.
Fellows, C. J., and Wiest, McDonald, Clark, Bird, Sharpe, and Steere, JJ., concurred.
power of husband to create easement in homestead without wife’s consent, see note in 27 L. R. A. (N. S.) 963.
On power of legislature to take away husband’s right to convey or encumber homestead property, see note in 36 L. R. A. (N. S.) 1029. | [
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Bird, J.
Defendant, a young man 24 years of age, who resided 'in the city of Detroit, was informed against in St. Clair county for having burglarized the Jeddo elevator on November 2, 1920. He was not sworn in his own behalf, but was convicted, and the case is here on exceptions before sentence.
Complaint is made because the trial court admitted a conversation between defendant and Clair R. Black, police justice of the city of Port Huron. The conversation was to the effect that, after defendant was arraigned before him, he requested an interview. In this interview defendant stated that he could not have been at Jeddo at the time charged because he was in Detroit and voted on November 2d, that being presidential election day. The police justice questioned defendant at some length as to the names on the ballots, the color of the ballots, whether he signed his name, and in what precinct he voted. Defendant’s answers led the police justice to charge him with lying, and he advised him his reasons for so thinking. Defendant finally admitted to the judge that he was lying. Counsel claims that this conversation was improperly admitted and was very harmful to defendant’s case.
The rule regulating the admission of this class of testimony is stated, as follows:
“Self-serving statements made by or for the accused out of court, explaining suspicious circumstances, may be proved against him, and their falsity may then be shown. The fact of their falsity admits them as indicating an attempt to explain away incriminating circumstances by falsehoods.” 12 Cyc. p. 429.
This rule has been applied in many cases in this court. A good example is the case of People v. Arnold, 43 Mich. 303 (38 Am. Rep. 182). In this case the defendant had two trials. At the first trial he was a witness and upon the second trial his testi mony on the first trial was offered and admitted against his objection. The case afterwards came to this court, and in determining it it was said in part:
“It cannot be claimed with any reason that giving in evidence the defendant’s statement violates any privilege which the statute confers upon him. He gives evidence in this manner on his own behalf at his option, and is not to be subjected to unfavorable inferences because he withholds it. But when it is in, it is to be treated like any other evidence, and may be contradicted and shown to be false. Defendant has no claim to be protected against the exposure of this falsehood where he indulges in it for his own exculpation. He runs the risk of this exposure when he invents a false defense.
“The peculiarity of this case consists in the defendant's statement being put in on the second trial, not by the defendant himself but by the prosecution. It is not, therefore, evidence in the case except as the prosecution makes it so, and the prosecution puts it in, not that reliance may be placed upon it, but for the very purpose of showing its falsity. It is proved as a declaration of the prisoner that it may be followed by evidence that he has attempted to deceive and mislead by it. And the question is whether from the statement itself, or from the use which was made of it, inferences unfavorable to the prisoner’s innocence might rightly be drawn.”
There is much more of this opinion and it is very much in point with the question involved here. In the case under consideration it does not consist alone of a self-serving statement of the defendant, but consists of a self-serving statement followed by his subsequent admission that it was not true. This, however, would not, in my judgment, lessen its admissibility. Some of the other cases in which the rule has been applied are People v. Eaton, 59 Mich. 559, and People v. Hoffmann, 142 Mich. 531.
Counsel, however, does not find so much fault with the rule as he does with its application under the circumstances. The fact that defendant did not take the stand counsel insists the prosecution had no right to introduce it as affirmative proof of guilt. The statement of defendant and his subsequent denial were admissible as affirmative proof. The fact that he did not testify in his own behalf would not make the statement inadmissible under the rule laid down in People v. Arnold, supra. In that case the defendant had two trials. Upon the first trial he testified. Upon the second one he did not, but the court held that his statement upon the first trial was admissible. This authority determines the particular point made by counsel adversely to his contention.
The sheriff was permitted to testify that he had examined the poll lists at the precinct in Detroit where defendant stated he had voted on the day in question, and that the records did not show that defendant had voted as he represented. This is complained of on the ground that parol testimony of the contents of a public record is inadmissible. The testimony given by the sheriff does not violate this rule for the reason that he did not testify as to the contents of a record but of the want of any record. This distinction was recognized in Maxwell v. Paine, 53 Mich. 30.
It is insisted the proofs did not make a case for the jury and that the trial court was in error in refusing to control the verdict. It was shown, in substance, that a Cadillac Victoria automobile had been stolen from Dr. Fruend in Detroit. A Cadillac Victoria was seen in the neighborhood of the elevator in question, and opinion evidence was given by witnesses that defendant resembled the driver of the car. Later the car was found in Detroit and in it was found the adding machine which had been stolen from the elevator. It was also shown that the tracks made by the tires of the car were similar to those made by the car at the elevator. One rear tire was new and the other was old. These and other less important facts were relied upon by the prosecution for conviction. While the testimony was largely circumstantial we think it furnished a basis for the inference drawn by the jury that defendant was the occupant of the car while it was at Jeddo, and that he was the party who broke into the elevator. We do not think the trial court was in error in refusing to control the verdict. Other .assignments are argued, but we see no occasion to consider them.
The judgment of conviction is affirmed.
Fellows, C.' J., and Wiest, McDonald, Clark, Sharpe, Moore, and Steere, JJ., concurred. | [
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Clark, J.
On January 6, 1903, plaintiff received a certificate for 100 shares of preferred stock, par value of $100 each, of Corl, Knott & Company. A guaranty of payment of principal and dividends was indorsed on the certificate. From time to time shares were redeemed and new certificates issued to plaintiff until finally on August 15, 1907, plaintiff received a certificate for 60 shares of said preferred stock, of the same par value, which certificate provided:
“The company shall call and redeem the preferred stock represented by this certificate, on the first day of February, 1915, by paying to the holder thereof its par value and all accumulated dividends thereon.”
And on which certificate a like guaranty was indorsed as follows:
“For value received I hereby guarantee payment of the dividends and principal of within stock. Should the holder thereof desire to continue said stock beyond the' maturity therein stated, he or she shall give notice to that effect at least sixty days prior to maturity to the undersigned.
“Samuel S. Corl,
“Heber A. Knott.”
Dividends on such stock were paid and were received by plaintiff semi-annually to and including August 1, 1916, but not afterward.
The company did not redeem the stock. Prior to February 1, 1915, and prior to December 16, 1916, no demand that it redeem was made by plaintiff upon the company. No notice was given by plaintiff or anyone in her behalf to the guarantors or either of them prior to February 1,1915, nor prior to December 16, 1916, that there had been no redemption or that plaintiff desired to continue the stock beyond maturity. The company failed. Its affairs were wound up. Plaintiff has received nothing upon her stock since August, 1916. No demand for payment under the guaranty was made upon Corl during his lifetime.
A claim upon the guaranty was filed against the estate of Corl in the probate court for Wayne county and was disallowed September 13, 1920. The cause was appealed. There was judgment for the estate which plaintiff reviews on error. The trial judge said in an opinion filed:
“Guarantors have the right to impose any conditions or restrictions upon their guaranty that they see fit. Samuel S. Corl and Heber A. Knott guaranteed the payment of this stock to the claimant at maturity and that is all they did do. They did not unconditionally forever guarantee the payment of the principal of this stock, as they would have done if they had stopped at the end of the first sentence, but they go on and make this guaranty conditional, if the holder should desire to keep the stock beyond the maturity date, by providing that she shall give them sixty days’ notice. That was inserted for the very purpose of limiting their guaranty. * * *
“On account of this great length of time beyond the maturity date of the stock before plaintiff took any steps to collect either from the company or from the guarantors, the question of laches might be one to be considered if this was an unconditional guaranty. It is my opinion, however, that this guaranty was con ditional and limited as to time and only ran until the maturity date of the stock. When the claimant did not give the sixty days’ notice provided for, and elected to hold and retain the stock beyond the maturity date, she, by that action of hers, released the guarantors from any further liability and elected to look to the company * * * for the payment of the stock.”
Plaintiff contends that the condition of the guaranty is of no importance and should be held to be of no avail to defendant. But we think the rule as to that is well stated in 20 Cyc. p. 1447, under the subject of guaranty:
“The court will not dispense with that which the parties have.agreed upon, or declare that to be immaterial which they have thought of sufficient importance to condition their contract upon.” * * *
Nor do we find a waiver of the condition by the guarantors. We think the quoted opinion of the circuit judge is sustained by the weight of authority. See 20 Cyc. pp. 1438, 1472; 1 Brandt on Suretyship and Guaranty (3d Ed.), § 106; Columbus Sewer Pipe Co. v. Ganser, 58 Mich. 385 (55 Am. Rep. 697); Gard v. Stevens, 12 Mich. 292 (86 Am. Dec. 52); Grasser & Brand Brewing Co. v. Rogers, 112 Mich. 112 (67 Am. St. Rep. 389); Evansville Nat. Bank v. Kaufmann, 93 N. Y. 273 (45 Am. Rep. 204); Locke v. McVean, 33 Mich. 473, 479; Mathews v. Garman, 110 Mich. 559, 560; Morris & Co. v. Lucker, 158 Mich. 518, 520; Schoonover v. Osborne, 108 Iowa, 453 (79 N. W. 263); Schwab v. Bridge, 27 Cal. App. 204 (149 Pac. 603).
Judgment affirmed.
Wiest, Bird, and Sharpe, JJ., concurred with Clark, J. | [
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