text
stringlengths 12
234k
| embeddings
sequencelengths 1.02k
1.02k
|
|---|---|
Butzel, J.
The Frischkorn Realty Company was organized in 1917 under the laws of Michigan. It was a closed corporation, in which all of the stock was held by Ephriam .S. Frischkorn and his two brothers, also active as its officers and directors. In 1925, the capital was increased and newly-issued stock -was offered and sold to the public. Ephriam S. Frischkorn remained its president and a director and stockholder until the dissolution of the company. He is hereinafter referred to as the defendant, although the Hellner Realty Company and J: H. Frischkonl were also joined as defendants. Prior to the hearing of the case, the bill of complaint was dismissed as to John H. Frischkorn, without prejudice to plaintiff’s right to proceed against him in a separate action. Defendant was president and director on December 21, 1931, on which date a large part of the assets were turned over to him. Exactly a week later, the directors filed a petition for the dissolution of the Frischkorn Realty Company, a temporary receiver was appointed and, in February, 1932, J. Lee Baker wras appointed permanent receiver.
We shall refer only to two, parcels -of property belonging to the corporation, designating them as parcels A and B. .Parcel A consisted of 52 lots in Frischkorn’s Grand Dale Gardens Subdivision and had been, sold on contract to Bishop Gallagher of the Catholic Diocese of Detroit. .The sum of $26,441.44 was still unpaid on the contract on December 21, 1931. The company also owned Grand Dale Gardens Subdivision No. 1, situated about two miles west of the Detroit city limits. A very large amount of money was expended in improving this subdivision, and particular attention seems to háve been paid to approximately 500 lots involved in this suit, hereinafter referred to as parcel B. Parcel B was mortgaged to John H. Frischkorn for $35,000 in August, 1931. Approximately 85 per cent, of these lots had been sold on contract, the balances due aggregating $325,739.03 on December 21, 1931; 55 of these contracts, .representing balances of $70,999.85, had been canceled.
Defendant contends that there was due him from the corporation the sum of $83,342.92, $57,431.27 of which was represented by a collateral note, dated February 28, 1930, and $25,911.65 by a note dated December 15, 1931. These notes constituted the balance due in his favor as the result of a series of alleg’ed debits and credits between the company and defendant. The notes were not produced at the hearing. Defendant claims that they were later canceled and turned over to the corporation, and that plaintiff should have found them when he took possession of the books and papers of the corporation.
A special meeting of the directors was called for December 21, 1931. The notice of the meeting did not specify its purpose, as required by the by-laws. At that time, those active in the company’s affairs knew or should have known that the corporation was in a serious condition. It had been threatened with foreclosure proceedings by the trustees under a bond issue, secured by a mortgage covering practically all of the company’s income-producing property, with the exception of parcels A and B. Eight of the 11 directors attended the meeting. Among them were the defendant, his two brothers and F. A. Howes, one of the incorporators of defendant Hellner Realty Company, to which parcel B was deeded. The testimony and minutes of the meeting disclose that it was represented to the directors that $83,342.92 was due defendant for actual cash advanced to the corporation for the continuance of its operations; that defendant had borrowed the necessary funds; and that some arrangements should be made to enable him to repay these loans. A resolution was adopted, approving and confirming the execution of the two notes hereinbefore described and directing the proper officials to deed parcels A and B to defendant or his nominee in full payment of the corporation’s obligations to him, on the cancellation and surrender of these notes. The deed to parcel B was to contain an assumption of the $35,000 mortgage liability by the grantee.
A deed to parcel B, running to the Hellner Realty Company, defendant’s nominee, was duly recorded on the day following the meeting. A significant and suspicious circumstance is the fact that the deed was acknowledged as of December 15,. 1931, six days prior to the meeting at which its execution was authorized. No new deed was executed covering parcel A. Defendant, however, produced a conveyance dated February 28, 1930, and recorded October 29, 1931, purporting to be a deed of parcel A. He claims that the instrument was intended as a mortgage. No mortgage tax was ever paid and the instrument was recorded as a deed. There is no showing that the conveyance was ever authorized by the board of directors as a mortgage and it cannot be upheld as such.
On December 28,1931, the company filed a petition for dissolution. On April 18,1932, plaintiff receiver filed a bill of complaint on behalf of the stockholders and creditors of the Frischkorn Realty Company, alleging that the entire transaction and transfer was fraudulent; that the indebtedness claimed did not exist; that the meeting was irregular; that'over $400,000 in assets were turned over to defendant in payment of an alleged indebtedness of $83,342.92, resulting in a net loss to the company of over $300,000 and a depletion of its assets to such an extent as to render it insolvent. Plaintiff also alleged that the $35,000 mortgage to John H. Frischkorn was fraudulent and executed without consideration and joined him and the Hellner Realty Company as defendants. The bill asked that the deeds and transfers, including the $35,000 mortgage, be set aside. The defendants filed a joint answer, in which they claimed the indebtedness to be tona fide, the entire transaction regular, and the value of the property transferred only equal to the amount due defendant.
The trial judge entered a decree setting aside the deeds as a fraud on the creditors and stockholders. This does not preclude defendant from proving any claims he may have against the corporation in the dissolution suit. The validity of the $35,000 mortgage was not adjudicated, inasmuch as the bill was dismissed as to John H. Frischkorn prior to the hearing. Defendants Ephriam S. Frischkorn and Hellner Realty Company have appealed, and plaintiff has filed a cposs-appeal, claiming that the court should have retained jurisdiction for a complete accounting with regard to all transactions raised and questioned by the plaintiff during the hearing, particularly as to the Florida transactions. The bill of complaint contained no allegations attacking these transactions and the lower court refused to render such relief. A complete accounting- may be sought in other proceedings.
Defendant claims that, if the transfer must be regarded as invalid, he was at most only guilty of constructive fraud and is, therefore, at least entitled to retain whatever he received as security for the amount due him. Inasmuch as the record reveals that he was the dominant figure in the series of transactions leading to the deeds, he can hardly claim rights as an innocent grantee guilty only of constructive fraud.
Appellants are correct in their assertion that it is settled in this State that a corporation may prefer its officers and directors, even though such preferences are given on the eve of insolvency and in payment of antecedent debts. Bank of Montreal v. J. E. Potts Salt & Lumber Co., 90 Mich. 345; Brown, Eager & Hull Co. v. Mosier, 187 Mich. 55; In re United Fuel & Supply Co., 250 Mich. 325; Warner v. Longwell, 261 Mich. 468. It is equally well settled, however, that officers of a corporation may deal with it only in good faith., Such contracts must be fair and in the interest of the corporation and all of the material facts must be made known to the directors. Any unfair advantage taken by an officer or director may be the basis for an attack upon the validity of the contract. See Barnes v. Spencer & Barnes Co., 162 Mich. 509 (139 Am. St. Rep. 587); Quinn v. Quinn Manfg. Co., 201 Mich. 664; Old Mortgage & Finance Co. v. Pasadena Land Co., 241 Mich. 426; Patrons’ Mutual Fire Ins. Co. v. Holden, 245 Mich. 493. Under the provisions of Act No. 327, Pub. Acts 1931, § 13, subd. 5.
“When the validity of any such contract is questioned, the burden of proving the fairness to the contracting parties of any such contract shall be upon such director, partnership, other group or association, or corporation who shal.1 be asserting the validity of such contract,”
The defendant recognized this burden but did not meet it. Defendant claimed the larger portion of the indebtedness arose in the following manner: The corporation became interested in Florida land and, in consequence thereof, the Frischkorn Florida Company was organized and the Michigan company empowered to purchase $1,000,000 of stock in the Florida company. The latter was purchasing a tract of land from Dunedin Syndicate, Inc., in which defendant held $25,000 of preferred stock. In 1926, the Michigan corporation decided, to acquire all of the assets belonging to the so-called Syndicate, with the exception, however, of a large tract of land which was being purchased on contract. It also agreed to assume all of the liabilities, with the exception of the very large sum due on this contract. Defendant asserts that there was included in these liabilities a claim-of $89,500 by Fred Warner, supposedly for loans made to the Syndicate, and one of $5,000 by J. L. Kelly, for attorney’s fees. Warner, a personal friend of defendant, also held $25,000 of preferred stock in the Dunedin Syndicate, Inc.
Defendant, at the hearing of the instant cause, claimed that, he had purchased the Warner and Kelly claims, which were among those assumed by the Frischkorn Realty Company, and that he turned over to Warner and Kelly, in exchange therefor, a part of his stock holdings in the Frischkorn Realty Company. This exchange was made at a time when the company still had treasury stock for sale. Plaintiff contends that defendant, as president of the company, should have given the company an opportunity to take advantage of such a trade and thus relieve itself of the alleged obligations. Defendant claims,'however, that the company was in no posi.tion to issue stock in payment of these claims, inas much as it had already issued 54,972 shares in excess of the number authorized by the securities commission.
We are satisfied that defendant did not sustain the burden imposed by statute and show the fairness of the transaction in its entirety. ' He failed to produce any written assignment of the alleged claims of Warner and Kelly and gave no'details in regard to these claims. When pressed for more detailed testimony as to the nature of the obligations and their assignment, he stated:
“I don’t know what I took from him in exchange for whatever I gave him.”
Defendant failed to produce the canceled notes and it was disclosed that a search made by the receiver after he took possession of the company’s assets, theretofore in the custody of the defendant and other officers of the corporation, failed to reveal their presence in the files.
There is considerable conflict in the testimony in regard to values. There is little doubt but that parcel A was worth $26,441.44, the full balance due on the Bishop Gallagher contract. If defendant’s claims aggregated $83,342.92, as he testified, this would leave unsatisfied, after deduction of the balance due on parcel A, the sum of $56,901.48. In satisfaction of this amount, defendant contends he was entitled to land contracts with balances due aggregating $325,739.03 and, in addition, 69 unsold lots, all subject, however, to the $35,000 mortgage defendant was to assume. The deed to the Hellner Realty Company, defendant’s nominee, did not include a clause assuming the mortgage, and the company was not relieved of liability.
Two experts were sworn as to value. We are not fully impressed by tbe testimony of either. Plaintiff’s witness was ^not fully appreciative of the fact that the economic situation had materially depressed values. On the other hand, defendant’s expert neglected to take into consideration the moral risk and personal responsibility of the land contract vendees in making his evaluation. Valuations necessarily had to be made as of December 21, 1931. At that time, hopes were still being entertained for an upturn and a further slump was not anticipated, with the result that values were not receding at so rapid a rate. Defendant’s witness seems to have been influenced by his knowledge of the subsequent drop in values.
The two parcels constituted practically all of the property of the company that wTas bringing in any income and that was not included in the trust mortgage about to be foreclosed. Almost $400,000 had been spent in improvements in the course of the development of the two subdivisions and another in the immediate vicinity. Due to commitments made in the land contracts, a very large portion of this amount had been expended on. the property in parcels A and B. All of the improvements called for' were made on the lots in parcel B, -while others remained uncompleted. A large amount was spent in making these improvements on the lots in parcel B'during the year 1931, just prior to the transfers and the receivership. Payments were made by the vendees on a number of the contracts in 1931; at least $23,000 was paid on land contracts in parcel B during that year. The trial judge was correct in holding that, on the date of the attempted transfer, parcel B appeared to be worth far in excess of the balance alleged to be due defendant after the appli cation of the value of parcel A. This remains true even after making allowance for and conceding a $35,000 mortgage liability against parcel B.
At the directors’ meeting of December 21, 1931, defendant failed to disclose the true facts. False statements were made to the effect that defendant’s claim represented actual moneys advanced to the company in order to enable it to continue its operations. As a matter of fact, the transfers stripped the company of the few remaining assets that were bringing in any income, at a price that was wholly inadequate. The action was taken without full or fair disclosure to the directors. Two of the directors who voted in favor of the resolution testified that they were not aware of the real facts and that, had they been fully informed, it might have influenced their vote.
Time and space do not permit further discussion of many other pertinent facts evidencing the unfairness of these transfers. The law governing the dealings between a corporation and its officers is set forth in Patrons’ Mutual Fire Ins. Co. v. Holden, supra; Barth v. Bredshall, 260 Mich. 522, 529. When the validity of such dealings are questioned, the burden of proving their fairness is upon him who seeks rights thereunder. Defendants did not sustain this burden; on the contrary, the testimony justified the trial court in holding that the entire transaction was a fraud on the stockholders and creditors.
The decree is affirmed, with costs to plaintiff.
McDonald, C. J., and Weadook, Potter, Sharpe, North, and Wiest, JJ., concurred. Fead, J., did not sit. | [
11,
43,
58,
-14,
-3,
-16,
16,
-7,
-21,
-26,
14,
25,
-10,
-17,
-47,
32,
50,
-49,
18,
5,
31,
-44,
-41,
18,
-29,
16,
14,
-64,
19,
-34,
-2,
-65,
-3,
-5,
-2,
25,
40,
-31,
33,
9,
-19,
21,
34,
-4,
45,
15,
19,
-34,
8,
-16,
15,
38,
26,
16,
10,
-77,
2,
42,
-18,
19,
-13,
2,
29,
4,
-7,
36,
46,
34,
33,
-51,
-36,
-51,
22,
25,
6,
-13,
19,
0,
-16,
-61,
-9,
-73,
31,
-27,
-4,
7,
-13,
-5,
-32,
39,
8,
-9,
32,
43,
27,
9,
-3,
-8,
-51,
-4,
38,
-20,
10,
45,
-5,
-25,
-57,
16,
39,
26,
-25,
6,
27,
-17,
32,
-37,
-10,
-39,
34,
-3,
-8,
-12,
31,
-12,
61,
57,
-48,
6,
-31,
-18,
23,
-66,
-34,
-7,
1,
-35,
-8,
-41,
-14,
27,
15,
42,
6,
-24,
-23,
-5,
0,
-28,
12,
-61,
-38,
-41,
4,
53,
-2,
-3,
4,
34,
37,
-61,
9,
-73,
22,
-30,
-9,
-6,
-31,
46,
-35,
15,
32,
-1,
43,
-54,
-26,
5,
16,
0,
-56,
18,
22,
7,
56,
-33,
-5,
-71,
6,
-25,
37,
-34,
52,
-35,
10,
33,
-41,
44,
-13,
40,
23,
-5,
8,
-26,
-4,
18,
0,
-19,
-7,
60,
-2,
38,
-9,
2,
10,
-12,
-22,
-17,
12,
-22,
34,
-22,
36,
-16,
-3,
43,
-18,
-11,
1,
-54,
0,
-14,
-26,
-28,
-25,
9,
-42,
-18,
48,
54,
-5,
-8,
-5,
0,
-39,
21,
-29,
32,
-18,
1,
24,
38,
-2,
-6,
-56,
3,
-67,
9,
-46,
13,
14,
34,
41,
-18,
-8,
27,
4,
2,
11,
-24,
-21,
-12,
1,
18,
10,
-8,
-26,
-30,
25,
-23,
-28,
33,
34,
-49,
47,
-12,
18,
32,
84,
-12,
-63,
-25,
-12,
55,
-27,
20,
7,
-5,
-62,
-59,
85,
6,
-50,
45,
-10,
-15,
24,
23,
-58,
-9,
71,
-18,
19,
-26,
19,
-73,
23,
21,
47,
-10,
45,
-46,
25,
37,
-29,
46,
28,
-1,
-1,
-24,
-26,
-10,
22,
-5,
6,
31,
-52,
0,
23,
-24,
10,
0,
10,
8,
-33,
18,
39,
14,
0,
57,
-45,
-27,
-3,
1,
-30,
19,
-11,
-2,
18,
47,
-21,
9,
23,
-5,
19,
-6,
-52,
-29,
-56,
-59,
-3,
42,
-19,
98,
-74,
59,
15,
17,
-18,
-61,
-34,
33,
6,
-3,
23,
44,
31,
7,
-16,
-25,
-34,
-5,
-71,
22,
8,
31,
11,
-36,
3,
17,
2,
-8,
29,
38,
-54,
24,
-45,
-23,
66,
27,
7,
18,
9,
-28,
65,
-6,
6,
32,
-7,
-15,
42,
-26,
28,
25,
-15,
4,
29,
-23,
-15,
44,
-41,
-23,
-25,
25,
-11,
13,
54,
-13,
-49,
11,
-37,
45,
-34,
-2,
-5,
30,
-22,
11,
-68,
36,
80,
5,
-2,
14,
1,
8,
0,
16,
3,
-11,
22,
23,
17,
-40,
29,
-29,
-49,
-26,
5,
3,
-36,
72,
21,
28,
18,
-30,
19,
-42,
18,
-2,
2,
18,
-49,
-11,
-15,
-23,
-63,
-13,
-54,
-16,
7,
40,
23,
-2,
8,
23,
-27,
-1,
-44,
41,
7,
17,
0,
-43,
24,
29,
0,
7,
37,
-38,
18,
33,
-19,
-50,
28,
32,
0,
27,
-8,
-27,
25,
47,
5,
5,
-43,
15,
-16,
54,
39,
0,
19,
-1,
-14,
-48,
-49,
-23,
-8,
-84,
-6,
26,
-16,
-28,
16,
-39,
16,
-9,
-26,
1,
-6,
-11,
13,
-15,
-17,
-43,
-22,
19,
0,
-27,
-31,
-45,
-1,
10,
-99,
16,
-12,
-45,
0,
-23,
-28,
-12,
-41,
13,
-13,
28,
53,
-31,
20,
-48,
-17,
-34,
-8,
-55,
4,
-34,
49,
-7,
-13,
67,
19,
-10,
-15,
39,
-36,
-1,
-30,
-49,
16,
25,
4,
62,
4,
-45,
-26,
-18,
-8,
-23,
-21,
-16,
-44,
14,
19,
-33,
-45,
-19,
-25,
14,
-44,
43,
43,
-37,
24,
0,
41,
-18,
9,
-31,
6,
31,
-28,
49,
-39,
58,
-22,
-40,
-29,
-21,
11,
15,
2,
19,
-43,
-12,
-9,
-34,
-11,
12,
-36,
-18,
-47,
-19,
43,
58,
-22,
14,
14,
0,
5,
-43,
9,
-28,
30,
-75,
23,
19,
-32,
-34,
49,
-49,
59,
-42,
27,
20,
-8,
13,
-52,
-12,
0,
-2,
0,
54,
9,
-6,
35,
20,
-12,
47,
36,
11,
32,
-2,
37,
-18,
-41,
16,
-37,
-22,
-59,
8,
-20,
17,
2,
-23,
0,
-32,
-7,
30,
-32,
56,
-17,
-25,
-68,
-20,
4,
-28,
29,
16,
-39,
38,
22,
-17,
-33,
26,
0,
-16,
-5,
-59,
19,
-38,
-37,
-2,
13,
-6,
31,
2,
22,
-15,
-28,
59,
-1,
-53,
-24,
-19,
-17,
10,
-31,
-10,
-5,
-7,
55,
37,
-34,
-16,
-14,
17,
25,
12,
15,
-25,
-18,
51,
-31,
20,
-32,
72,
-53,
19,
12,
1,
23,
-19,
-6,
-33,
-65,
52,
-64,
30,
-25,
-29,
-1,
18,
35,
-8,
12,
-15,
-9,
22,
7,
36,
53,
81,
56,
-3,
27,
-60,
11,
-14,
-13,
48,
28,
14,
16,
-3,
-37,
53,
-59,
25,
12,
-11,
-30,
42,
42,
19,
-2,
12,
7,
-27,
43,
61,
-12,
15,
-35,
-3,
-44,
-10,
-23,
10,
29,
-53,
-4,
5,
35,
29,
24,
-48,
-4,
49,
1,
-27,
29,
9,
10,
-62,
-8,
-49,
-26,
0,
-14,
-46,
-6,
52,
9,
-17,
-40,
-36,
-23,
-20,
-26,
3,
-23,
6,
-25,
-4,
89,
-17,
-49,
-14,
22,
-20,
-4,
-26,
22,
2,
15,
36,
46,
-12,
40,
-5,
-26,
-47,
-14,
13,
0,
60,
0,
-36,
-6,
64,
39,
48,
-34,
40,
-52,
21,
-42,
29,
10,
4,
-6,
-3,
54,
0,
-19,
12,
-30,
-42,
13,
64,
25,
67,
-25,
1,
-17,
-49,
-18,
18,
-69,
25,
-2,
-6,
-1,
4,
0,
-47,
-35,
0,
-21,
-35,
15,
42,
29,
35,
27,
15,
5,
-27,
5,
-40,
0,
-26,
-16,
-33,
60,
-6,
-30,
42,
33,
-13,
73,
18,
28,
12,
21,
35,
-24,
23,
-1,
-4,
0,
-47,
5,
-70,
17,
-39,
-44,
9,
80,
-23,
16,
28,
30,
-15,
-18,
-12,
-41,
22,
2,
-18,
-9,
42,
18,
-28,
10,
-3,
38,
43,
6,
14,
-16,
23,
-22,
-7,
9,
-9,
-13,
0,
26,
2,
33,
-12,
24,
-48,
11,
0,
-5,
5,
-38,
40,
9,
-53,
22,
37,
-12,
17,
35,
23,
-9,
38,
-6,
53,
19,
-5,
19,
38,
-55,
52
] |
McDonald, C. J.
This suit was brought to recover for materials furnished by the plaintiff to JohnstonBrommell, Inc., principal contractor in the construction of a public building near Lansing in Ingham county, Michigan. The defendant, Michigan Surety Company, furnished the statutory bond.
During the progress of the work Johnston-Brommell, Inc., became financially involved and it was necessary for the surety company to assume control in order that the building might be completed according to contract and the payments properly applied. The contractor was not entirely displaced but was allowed to operate, jointly with defendant in carrying the work to completion.
The material furnished by the plaintiff was principally tile; but in addition to the tile it rented to the contractor 706 adjustable shores which are now largely used in construction work instead of the old-fashioned lumber forms and which the plaintiff contends should be classed as material. Some of the shores were not returned and some of them were damaged. The plaintiff presented a claim for their rental, for the value of those not returned and for loss on those that were damaged. The defendant paid for the tile but denied, liability for any claim concerning the shores on the ground that they were not "materials” or "supplies” within the meaning of the statute, and, therefore, were not covered by the bond. Thereupon the plaintiff brought this suit and on a trial before the circuit judge without a jury received a judgment, which defendant reviews here on appeal.
The plaintiff’s declaration presents three theories on any one of which it pleads.the rig’ht to recover.
It is claimed that the shores are “materials” and ‘ ‘ supplies ’ ’ within the meaning of the statute and are, therefore, protected by the bond.
The statute, 3 Comp. Laws 1929, § 13136, provides :
“The words ‘materials’ and ‘supplies’ as used herein shall include coal, wood, form lumber, gasoline, kerosene and lubricating and fuel oils, necessarily used in connection with or consumed in constructing, repairing and ornamenting public buildings and public works, ’ ’ etc.
Though this section of the statute does not expressly mention shores as included in materials, the plaintiff contends that as they- are a substitute for form lumber, the shores should by analogy be included where they are necessarily used in the construction of the building.
In considering this contention the reason why the legislature included coal, forms for lumber, etc., as materials protected by the statute becomes important.
In People, ex rel. Fox, v. Fidelity & Deposit Co., 238 Mich. 326, we held that form lumber was included in the word materials because it did not survive the construction but was wholly consumed in the building and went to enhance its value. For the same reason coal and gasoline were held to be materials, Smith v. Oosting, 230 Mich. 1. As this case was decided prior to the effective date of 3 Comp. Laws 1929, § 13136, we may fairly assume that in enacting the statute the legislature had this decision in mind and thus included only those commodities as materials which did not survive the construction but in their use were wholly consumed.
These shores are unlike any of the class mentioned in the statute. They are like jacks. They are substantially constructed of steel and wood and are built to last from seven to ten years in continuous service. They are sold to contractors ready for use or leased with option to purchase. They survive the construction in which they are used and remain the property of the contractor or his lessor. They do not enter into the value of the building. They are in the same class as tools and cannot be considered as materials within the meaning of the statute.
The second theory advanced by the plaintiff is that defendant is liable to pay on an express promise.
"When the defendant assumed control of the construction, the contractor owed the plaintiff for tile furnished and for rental of shores. In response to a letter from the plaintiff as to payment, Mr. Lewis, vice-president of the surety company, wrote that his company had assumed joint control with the contractor; that payment on estimates would be disbursed under its direction and “This insures to you the payment of your account. ” Later, Mr. Wernette, defendant’s engineer,, who was directing the work, wrote:
“It will be some little time before we know just exactly what the situation is regarding various bills. However, we wish to assure you that your company will.be paid for all materials furnished to the above job providing, of course, .that such are according to the architect’s plans and specifications and approved by them.”
The plaintiff contends that these letters constitute an express promise to pay for the shores. We cannot thus construe them. Because of the contractor’s failure to pay for the material furnished, the surety company had assumed the disbursement of money received on the contract from the' owner; and its only promise was 'that as the estimates were approved by the architect the money would be applied on the plaintiff’s invoices for materials. There was no promise to pay from any other source than from money received on the contract.
The contention that a promise to pay should he implied is equally untenable and .requires no discussion.
The judgment is reversed, with costs to the defendant.
Weadock, Potter, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
-2,
23,
-18,
23,
-38,
19,
29,
-27,
30,
3,
-15,
9,
8,
-26,
28,
-14,
10,
29,
5,
22,
21,
-9,
-12,
-39,
-43,
0,
42,
-13,
-12,
25,
-46,
28,
-13,
-32,
-17,
30,
1,
-5,
26,
-11,
32,
-59,
25,
-45,
12,
-22,
58,
-28,
43,
-4,
11,
28,
-20,
-21,
2,
-15,
-30,
15,
25,
27,
4,
-20,
3,
7,
37,
-32,
35,
61,
13,
-25,
-21,
68,
-8,
-23,
20,
-2,
-33,
14,
-36,
-3,
12,
35,
30,
30,
-1,
-16,
-77,
-13,
7,
12,
-75,
-18,
-52,
5,
-10,
11,
-40,
47,
22,
25,
-4,
33,
-44,
27,
-42,
13,
17,
7,
-17,
57,
27,
-51,
-1,
-8,
0,
-12,
13,
12,
-5,
4,
19,
-1,
-8,
-20,
-10,
-34,
22,
-43,
-5,
-19,
-8,
-11,
-17,
-3,
-2,
28,
40,
47,
-41,
35,
-20,
58,
1,
13,
-8,
38,
46,
-36,
-43,
-4,
-52,
-14,
23,
26,
15,
-11,
28,
17,
20,
-64,
17,
-16,
43,
-9,
-41,
-34,
-22,
36,
-17,
9,
15,
-7,
-16,
-34,
11,
40,
2,
20,
-17,
1,
9,
-78,
62,
11,
-27,
23,
-8,
-8,
-20,
33,
37,
-14,
-34,
-5,
-33,
46,
-3,
65,
-4,
25,
-33,
-47,
-15,
-66,
20,
-17,
62,
-4,
-3,
11,
9,
-6,
-63,
-8,
16,
15,
-19,
9,
0,
-56,
-47,
-30,
42,
-1,
-5,
-22,
-9,
-18,
48,
-50,
-30,
-3,
52,
-42,
-35,
18,
-2,
-7,
70,
7,
-17,
-40,
-86,
10,
30,
-74,
-49,
4,
34,
-1,
-34,
-19,
22,
8,
-8,
-11,
-10,
17,
-44,
5,
20,
11,
-40,
22,
21,
31,
-15,
10,
-47,
70,
-38,
36,
24,
21,
-38,
-3,
-24,
4,
-27,
3,
2,
6,
-10,
-2,
-25,
8,
-31,
27,
-22,
-45,
-33,
22,
51,
-46,
38,
-16,
-16,
-50,
-10,
1,
-1,
-9,
-12,
-39,
-3,
56,
-12,
32,
37,
2,
1,
25,
2,
-7,
5,
-16,
53,
-14,
18,
-15,
8,
10,
4,
-10,
-7,
-12,
19,
-10,
-27,
-15,
-20,
1,
5,
6,
-36,
0,
30,
-20,
20,
0,
39,
42,
52,
9,
-22,
27,
-4,
-3,
16,
-46,
28,
-5,
-11,
17,
-1,
54,
1,
4,
-12,
62,
48,
23,
23,
-20,
-13,
-58,
-45,
5,
11,
39,
36,
-20,
2,
55,
20,
-17,
-13,
-23,
-62,
26,
14,
-6,
60,
-14,
47,
-5,
44,
-13,
-4,
0,
-62,
-56,
43,
9,
-10,
-9,
-15,
-1,
14,
10,
20,
53,
13,
-10,
-38,
-33,
0,
-9,
-3,
-4,
4,
-19,
-13,
11,
-43,
-7,
55,
-6,
24,
9,
28,
0,
0,
-17,
34,
-44,
-8,
33,
-28,
-14,
-69,
31,
-7,
-29,
6,
-3,
-37,
-25,
-33,
19,
-24,
43,
-8,
-46,
5,
45,
8,
56,
-5,
-9,
-17,
53,
-20,
22,
10,
24,
39,
-34,
41,
-4,
16,
-34,
55,
-13,
28,
-3,
-25,
-26,
10,
48,
4,
38,
34,
-22,
-13,
13,
24,
8,
-33,
-10,
8,
56,
-46,
-8,
-3,
-4,
-12,
24,
-33,
31,
4,
5,
-31,
-37,
-42,
28,
-41,
-10,
7,
51,
-4,
-45,
-10,
-24,
40,
-31,
4,
1,
10,
27,
-27,
-11,
38,
4,
18,
-14,
19,
-12,
-12,
16,
-20,
15,
-41,
23,
20,
95,
-44,
39,
-4,
28,
-10,
-21,
-12,
5,
0,
10,
33,
20,
-38,
6,
37,
30,
33,
-12,
6,
0,
-57,
11,
-5,
-18,
-33,
1,
0,
46,
-32,
14,
-25,
10,
5,
14,
-22,
26,
13,
0,
-8,
3,
-50,
0,
37,
-6,
-33,
12,
21,
-1,
-58,
13,
-64,
-7,
-3,
-6,
-4,
-22,
-4,
-25,
-49,
-7,
54,
37,
12,
10,
-21,
-34,
-4,
-60,
-18,
23,
-14,
9,
-22,
-42,
-12,
-40,
-21,
-23,
-30,
-27,
32,
17,
16,
41,
-8,
-11,
-9,
-12,
0,
14,
5,
-38,
20,
19,
17,
-10,
-15,
57,
-22,
31,
3,
10,
-26,
18,
-34,
-10,
-66,
-11,
-2,
-26,
-1,
0,
-6,
-31,
10,
14,
-32,
7,
-24,
-11,
7,
13,
-37,
-26,
-13,
25,
53,
36,
-12,
-3,
9,
-2,
39,
-21,
25,
-21,
-5,
36,
-11,
-5,
36,
0,
28,
-4,
19,
0,
-37,
0,
18,
-47,
-34,
-6,
5,
19,
25,
-25,
54,
-25,
23,
11,
-5,
-12,
-31,
-33,
-30,
7,
18,
5,
24,
6,
12,
26,
33,
12,
-26,
28,
-6,
18,
3,
29,
-71,
-50,
14,
56,
8,
26,
-9,
51,
0,
51,
-18,
6,
-42,
-23,
-4,
-57,
12,
-11,
-12,
-6,
-1,
-8,
-31,
-27,
-28,
26,
29,
-42,
4,
-21,
31,
21,
3,
17,
20,
1,
-32,
-42,
-66,
-4,
89,
3,
-7,
21,
-22,
1,
-7,
0,
-29,
-55,
-59,
-7,
-22,
21,
-19,
-22,
-18,
-16,
-10,
-39,
-55,
-2,
17,
-73,
-6,
25,
-22,
-33,
31,
13,
24,
8,
35,
44,
9,
-11,
49,
-3,
-10,
-47,
22,
-12,
-17,
8,
-36,
27,
27,
25,
-23,
-20,
24,
48,
-22,
-8,
-19,
36,
1,
27,
-24,
5,
-36,
5,
-19,
-7,
-18,
-12,
-9,
-38,
6,
33,
-29,
28,
-1,
11,
-21,
27,
-69,
-55,
50,
19,
-19,
-2,
-8,
-16,
39,
1,
-23,
-2,
50,
-13,
2,
-1,
37,
-33,
10,
-33,
-15,
23,
-20,
-3,
-24,
-6,
-9,
47,
-17,
2,
-24,
26,
23,
30,
-4,
9,
0,
26,
47,
24,
-8,
37,
-12,
-15,
-34,
2,
-16,
10,
38,
0,
43,
21,
53,
8,
-37,
-18,
7,
56,
-29,
31,
65,
-44,
-9,
-14,
5,
-5,
32,
51,
-2,
-14,
-6,
42,
-11,
-48,
47,
-45,
-17,
-30,
35,
-9,
-4,
42,
23,
10,
47,
10,
-18,
23,
-38,
12,
-4,
29,
-32,
43,
0,
11,
-16,
8,
16,
-23,
-9,
34,
-38,
5,
-29,
37,
-38,
58,
-51,
-28,
-26,
32,
47,
-44,
-30,
-52,
9,
20,
-34,
-28,
-21,
-22,
-20,
-13,
35,
16,
-3,
13,
-10,
7,
11,
68,
-73,
7,
-3,
9,
-44,
-26,
-14,
-6,
-51,
4,
20,
12,
-9,
-10,
7,
-79,
0,
-15,
-4,
-41,
-1,
-30,
4,
16,
10,
33,
35,
-16,
-9,
9,
0,
-54,
33,
-26,
-28,
7,
49,
16,
21,
-7,
-9,
-19,
16,
14,
-7,
-7,
8,
19,
-30,
69,
1,
32,
43,
25,
9,
-5,
-58,
18,
22,
1,
43,
40,
-80,
57,
46,
-66,
76,
-17,
-20,
33
] |
McDonald, O. J.
On September 24, 1926, the plaintiff was awarded a decree of divorce from the defendant on the ground of extreme cruelty. As alimony and in lieu of dower she was decreed $40 a week until remarriage. On April 9, 1927, defendant secured a modification of the decree by which the alimony was reduced to $10 a week. On November 18, 1931, on his application the alimony was temporarily discontinued. On February 29, 1932, he was ordered to' pay $5 a week for one month. On November 9, 1932, in accordance with a written stip ulation of the parties the court made an order requiring the defendant to pay a lump sum of $300 and on such payment no further alimony was to be paid until October 21, 1937, at which time payments of $10 a week should be resumed and continued until plaintiff’s remarriage. The order also provided that either party might petition for its modification 30 days before October 21, 1937. Shortly after the entry of this order the plaintiff filed a petition for a modification alleging as a reason therefor that there had been a substantial change in the defendant’s financial condition because of the fact that he had inherited large sums of money from a deceased brother. The defendant moved to dismiss the petition on the ground that the order sought to be modified was a consent order based on the written stipulation of the parties and that the court was without jurisdiction to modify it. Dismissal was refused and the court entered an order of modification in accordance with the prayer of the petition granting to the plaintiff 20 per cent, of all cash payable to defendant out of his brother’s estate and giving her a lien therefor upon the funds in the hands of the Union Guardian Trust Company, testamentary trustee. From this order the defendant has appealed.
1. It is first contended that the court was without authority to modify the order based on the stipulation of the parties.
The modification .was based on a change in the defendant’s financial condition. From the time of the original decree he has successfully resisted the various orders for alimony on the plea of inability to make the payments. The order which the plaintiff seeks to modify was based on his then financial condition. The change in his finances warrants a
change in the order. It is immaterial that the previous order was agreed to by the parties. In Eddy v. Eddy, 264 Mich. 328, it was said:
“The court, in adjudging alimony, could employ the agreement, and later, under power reserved by statute, modify the decree to comport with change in circumstances of the parties. 3 Comp. Laws 1929, ■§ 12748.”
2. Was the court without jurisdiction to make the alimony allowance a lien upon the defendant’s property?
It is contended by the defendant that if the alimony allowed is to he a lien on his property it must be so provided in the original decree. Of course, the original decree made no provision for a lien because at that time the defendant had no property. Having since acquired property out of which alimony can be paid the court was warranted by statute in revising the decree and making the alimony a lien, a charge against the property. 3 Comp. Laws 1929, § 12747, provides that alimony or allowance for minor children shall constitute a lien upon the real and personal property of the husband. 3 Comp. Laws 1929, § 12748, provides that after a decree for alimony or other allowance for the wife and children the court may from time to time revise and alter the decree and make any further order or decree which he might have made in the original suit. This statute answers the defendant’s contention that provision for a lien can he made only in the original decree. See, also, Creyts v. Creyts, 143 Mich. 375 (114 Am. St. Rep. 656). Of course, this may not he done to the prejudice of intervening rights of third parties; but there are no such in this case.
3. Is the award for alimony unreasonably excessive ?
The will of the defendant’s brother left him 37% per cent, of the estate consisting of $22,098.04 in cash and two mortgages, one of $35,000 and one of $55,000; 30 per cent, of the cash is deposited in the First National Bank of Detroit, now in receivership, and 70 per cent, is held by the Union Guardian Trust Company under conservatorship. The amount of cash which the defendant will receive ultimately or as dividends are paid cannot now be determined. Nor can it be determined how much he will receive from the mortgages aggregating $90,000. For this reason the court reserved a determination of the amount the plaintiff should receive from the defendant’s interest in the mortgages. The amount allowed applies only to the cash as it becomes available. In the circumstances we think an award of 20 per cent, is reasonable.
The order is affirmed, with costs to the plaintiff.
Weadock, Potter, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
-9,
1,
-26,
25,
-12,
0,
-39,
-7,
-23,
-22,
-12,
-42,
-1,
2,
-21,
9,
-3,
-36,
-7,
0,
-5,
-17,
10,
26,
11,
17,
39,
-73,
0,
4,
10,
6,
-58,
59,
17,
-12,
-24,
-30,
53,
-7,
36,
-76,
-7,
45,
-61,
3,
-2,
-37,
-35,
-2,
-46,
-41,
29,
44,
43,
30,
-60,
13,
-28,
7,
-41,
2,
-24,
11,
3,
16,
0,
42,
-30,
-8,
4,
-32,
3,
-40,
-29,
-30,
32,
-45,
8,
11,
-31,
-63,
0,
13,
-22,
13,
-5,
15,
19,
64,
-83,
58,
-36,
-2,
-17,
-11,
23,
-2,
63,
36,
22,
-34,
32,
27,
36,
81,
6,
43,
-46,
3,
47,
-13,
52,
-4,
-23,
-39,
-71,
29,
19,
-59,
21,
34,
15,
-49,
17,
1,
-48,
4,
39,
-5,
-42,
14,
-36,
-45,
-7,
-5,
26,
5,
-14,
-32,
18,
27,
-8,
-19,
-13,
12,
-24,
-46,
-5,
-19,
-1,
34,
64,
66,
43,
-39,
-30,
-17,
28,
-57,
-2,
28,
33,
17,
3,
-13,
-56,
0,
-14,
10,
36,
15,
-86,
0,
19,
23,
-29,
-37,
-48,
-26,
-5,
61,
12,
-57,
-9,
9,
-32,
-14,
-36,
28,
-15,
-28,
32,
2,
18,
-36,
42,
-3,
69,
77,
2,
14,
27,
20,
5,
-37,
-17,
10,
-16,
0,
2,
-23,
-38,
11,
-58,
10,
-19,
-13,
-27,
-29,
-16,
-4,
45,
-18,
-8,
-34,
45,
30,
-43,
28,
-72,
38,
-12,
-35,
-2,
38,
2,
17,
6,
9,
-5,
32,
-26,
-28,
-15,
9,
29,
7,
-3,
-8,
-13,
28,
-24,
71,
-3,
60,
-1,
26,
46,
-5,
18,
-12,
16,
28,
6,
-15,
-10,
-27,
31,
3,
57,
-62,
58,
-77,
25,
7,
-126,
-16,
-21,
14,
1,
1,
-3,
39,
-20,
-25,
-55,
10,
-27,
54,
49,
-40,
-5,
-25,
14,
-11,
-17,
-27,
7,
-15,
-31,
-58,
9,
-22,
4,
-5,
-11,
-5,
-13,
-73,
-6,
-16,
-17,
-27,
20,
-38,
-15,
6,
-5,
-8,
2,
25,
-27,
1,
55,
18,
18,
4,
-34,
51,
2,
-1,
5,
-17,
62,
-20,
16,
68,
30,
9,
-23,
-8,
-6,
5,
9,
10,
52,
-30,
4,
22,
-33,
23,
-19,
8,
-12,
2,
32,
-44,
-34,
3,
19,
-17,
-24,
-48,
20,
42,
35,
-10,
2,
51,
48,
9,
-29,
-9,
6,
26,
-36,
43,
-28,
10,
-34,
36,
37,
37,
58,
-4,
-45,
-51,
-44,
-32,
-21,
40,
-5,
-30,
20,
11,
12,
-12,
18,
-1,
-10,
23,
-26,
-49,
-8,
-5,
8,
-43,
-27,
-8,
21,
15,
32,
5,
52,
4,
41,
-59,
5,
-11,
-16,
-6,
24,
5,
9,
-5,
30,
-61,
-3,
-6,
-14,
28,
-1,
30,
16,
28,
-50,
26,
-35,
41,
5,
41,
16,
47,
34,
15,
-6,
-33,
24,
11,
29,
1,
26,
19,
-9,
-51,
3,
41,
-44,
-43,
27,
1,
-5,
38,
-29,
-5,
-41,
39,
-6,
27,
0,
-13,
39,
26,
-4,
-16,
18,
-5,
-33,
-32,
-16,
-9,
-30,
-6,
15,
-16,
-58,
-5,
-20,
-2,
18,
-19,
-52,
53,
-16,
-50,
-45,
4,
-21,
7,
27,
-36,
27,
40,
89,
-16,
14,
-87,
36,
-2,
-12,
-54,
55,
19,
48,
-24,
32,
4,
44,
12,
29,
-2,
28,
-3,
11,
4,
-13,
20,
-31,
-4,
-10,
33,
-32,
3,
-15,
-7,
-28,
-59,
-24,
22,
5,
-15,
11,
15,
85,
12,
8,
3,
-28,
-25,
17,
-30,
47,
-8,
-2,
-7,
-26,
24,
-33,
-20,
3,
32,
-19,
13,
16,
-33,
-39,
-7,
-16,
-6,
23,
32,
15,
51,
-26,
39,
-13,
-46,
-24,
59,
37,
15,
-14,
0,
-21,
-17,
-37,
27,
-11,
15,
23,
24,
50,
30,
13,
-23,
-4,
0,
-7,
9,
36,
2,
-41,
-19,
-39,
-17,
21,
28,
19,
-32,
-11,
38,
13,
18,
4,
-1,
6,
-48,
-15,
7,
0,
28,
0,
-33,
7,
-6,
9,
29,
-2,
26,
49,
-10,
69,
21,
2,
59,
-55,
23,
15,
10,
-3,
55,
24,
23,
-10,
21,
13,
-1,
-15,
-19,
19,
40,
10,
10,
15,
-27,
71,
-20,
34,
34,
6,
-37,
-25,
32,
57,
17,
-17,
99,
0,
11,
-2,
-22,
20,
16,
33,
19,
-88,
34,
9,
-28,
-16,
-11,
-8,
42,
-39,
39,
-15,
-21,
-20,
-22,
15,
-33,
-5,
22,
6,
18,
20,
60,
-6,
25,
54,
29,
-7,
17,
-31,
-6,
-31,
1,
8,
8,
-74,
23,
14,
-28,
4,
19,
76,
19,
-61,
-59,
6,
19,
-35,
15,
-29,
29,
-4,
24,
-35,
-44,
2,
15,
-5,
-18,
2,
5,
-9,
7,
-39,
0,
28,
-34,
9,
-1,
-55,
-14,
2,
30,
-32,
46,
-21,
26,
-5,
-11,
-63,
11,
39,
16,
-10,
-8,
24,
7,
27,
49,
-47,
-38,
34,
2,
-24,
-47,
-16,
-23,
42,
-20,
-6,
-29,
56,
31,
8,
-29,
7,
-1,
6,
-32,
28,
-54,
43,
-19,
47,
20,
-43,
-52,
23,
-24,
-1,
28,
-15,
-41,
6,
-17,
23,
68,
-10,
-8,
-9,
42,
-45,
13,
-18,
-22,
0,
0,
23,
29,
-27,
6,
-51,
-44,
-60,
-15,
43,
2,
-6,
-35,
12,
-54,
-18,
14,
-38,
42,
23,
-21,
56,
-7,
-16,
34,
46,
-22,
-42,
-53,
-26,
-55,
-18,
9,
42,
20,
8,
53,
33,
-19,
34,
-46,
-27,
8,
-61,
-30,
-14,
-20,
-26,
-5,
-27,
-19,
23,
-30,
3,
28,
6,
4,
23,
-20,
-19,
-64,
17,
-9,
-8,
64,
43,
-66,
4,
33,
-15,
-19,
-50,
-25,
-1,
-14,
8,
55,
-10,
41,
25,
0,
59,
-8,
-46,
1,
-20,
-40,
13,
-4,
-34,
-10,
-34,
-26,
50,
15,
0,
72,
0,
16,
-12,
-4,
4,
-13,
22,
16,
34,
25,
-44,
1,
-1,
-43,
-58,
29,
24,
-4,
-23,
-18,
33,
23,
6,
-33,
2,
-17,
15,
-18,
-26,
-3,
26,
-9,
-16,
-1,
7,
9,
-34,
16,
3,
-10,
-20,
-40,
-40,
13,
0,
16,
-1,
12,
-45,
6,
-11,
-11,
-55,
18,
47,
-50,
39,
-39,
24,
-23,
-43,
-27,
36,
-25,
-42,
-52,
16,
-16,
82,
-31,
26,
-64,
18,
21,
-13,
-4,
8,
-1,
-3,
-8,
-17,
22,
82,
-73,
-3,
37,
-3,
-20,
38,
-10,
3,
-37,
-9,
16,
38,
24,
2,
-31,
38,
12,
-46,
-6,
14,
-14,
-11,
26,
9,
44,
36,
0,
10,
-19,
-6,
-29,
-3,
25
] |
Wiest, J.
This is an appeal in the nature of mandamus.
Defendants owned a farm and wanted to sell it. February 13, 1933, by verbal agreement, they let the farm to plaintiff to work on shares and he entered into possession. February 27, 1933, defendants sold and conveyed the farm to John Hartman without any reservation of plaintiff’s leasehold rights. March 2, 1933, defendants commenced a summary proceeding before a circuit court commissioner to dispossess plaintiff herein and have restitution of the premises. Summons was issued and served. Plaintiff herein appeared in person and by attorney and pleaded not guilty and gave notice of an oral contract to work the farm on shares. Trial was had and plaintiff herein adjudged guilty of “unlawfully holding possession of the premises,” and that defendants herein have restitution thereof. No appeal was taken and, March 16, 1933, writ of restitution issued and was executed. March 14, 1933, plaintiff brought this action to recover damages for eviction, claimed the summary proceeding was void because plaintiffs therein had sold and conveyed the farm and, therefore, were pot entitled to possession and not the real parties in interest. Defendants moved to dismiss because the adjudication of the circuit court commissioner, from which no appeal was taken, determined the rights of the parties. The court denied the motion and defendants are here by appeal.
Upon the hearing of the motion to dismiss, the proceedings before the circuit court commissioner were introduced and, upon the face thereof, the commissioner had jurisdiction and the proceedings were regular. If defendants herein were not the real parties in interest in the proceedings before the commissioner then defendant therein should have there raised the point. The record discloses that no such point was made upon the trial before the commissioner, neither was it claimed that defendants herein had sold and conveyed the farm and, therefore, were not entitled to possession. Such matters, if meritorious, should have been presented in the summary proceeding and not withheld for subsequent attack upon the jurisdiction of the commissioner. The record of the commissioner, upon its face, shows jurisdiction and may not be impeached by matters dehors the record and known to defendant therein and which he should have pleaded in that proceeding.
That plaintiff could and should have put in issue in the summary proceeding against him defendants ’ extinguishment of title and right to possession is settled law. McGuffie v. Carter, 42 Mich. 497. The right of defendants here, plaintiffs in the summary proceeding, necessarily involved their then right of possession and the adjudication there on that point bars the claim of unlawful eviction upon which the suit at bar is planted. Samaha v. Hamper Estate Co., 247 Mich. 210.
The case is remanded to the circuit court with direction to grant the motion to dismiss. Defendants will recover costs of this court.
McDonald, C. J., and Weadock, Potter, Sharpe, North, Fead, and Butzel, JJ., concurred. | [
2,
21,
3,
13,
1,
24,
-2,
35,
-29,
33,
-50,
-33,
28,
32,
-10,
16,
29,
-6,
-14,
12,
17,
2,
-5,
36,
27,
-59,
2,
-10,
6,
-5,
-3,
-19,
-27,
-3,
6,
-15,
3,
23,
11,
2,
-7,
0,
2,
1,
-7,
-20,
-32,
-17,
13,
3,
27,
-9,
-10,
-18,
-22,
-54,
-23,
21,
-7,
16,
-9,
33,
-46,
-12,
3,
40,
-36,
-47,
-27,
-49,
3,
-17,
4,
-15,
67,
-26,
-24,
4,
21,
2,
19,
-39,
37,
2,
-36,
67,
23,
-44,
-17,
-2,
0,
28,
-49,
-24,
-10,
11,
52,
22,
19,
-23,
-34,
-13,
-37,
28,
5,
-6,
-24,
-7,
-20,
-8,
25,
-18,
46,
-19,
17,
-10,
-13,
-52,
10,
15,
26,
-26,
14,
10,
9,
-20,
-33,
-5,
-31,
15,
26,
5,
-27,
0,
4,
7,
-11,
-51,
-17,
-23,
23,
-6,
-18,
-48,
-5,
12,
-22,
6,
-1,
-3,
-21,
27,
5,
-3,
5,
-10,
69,
18,
6,
-26,
-8,
25,
-36,
-57,
13,
-6,
27,
-40,
-27,
53,
1,
0,
8,
-6,
13,
-13,
9,
42,
-28,
-1,
-18,
-5,
16,
-4,
-36,
-22,
14,
7,
-39,
0,
18,
6,
15,
-10,
15,
32,
7,
20,
-26,
18,
-1,
-23,
15,
-30,
38,
-4,
56,
27,
40,
-13,
-63,
-26,
11,
-68,
-9,
-16,
28,
-5,
-4,
-2,
17,
9,
5,
4,
-26,
-39,
-6,
17,
13,
55,
7,
-2,
33,
34,
-68,
-67,
6,
-13,
27,
-10,
-26,
3,
-12,
-21,
7,
39,
-1,
9,
14,
41,
-19,
-13,
-58,
25,
11,
-21,
-8,
-38,
-56,
-27,
41,
28,
-35,
22,
4,
-12,
-24,
21,
-20,
58,
-35,
37,
9,
5,
-50,
-21,
-38,
13,
-11,
-2,
65,
0,
31,
29,
-42,
40,
42,
39,
-31,
11,
16,
9,
-34,
-7,
-8,
23,
-33,
-10,
48,
20,
-42,
0,
-10,
-16,
24,
-27,
-6,
-14,
27,
-23,
16,
1,
18,
-16,
17,
17,
11,
37,
-3,
-67,
17,
18,
13,
-1,
21,
-37,
31,
-73,
6,
-3,
-6,
0,
10,
-17,
-8,
4,
16,
-28,
-10,
2,
47,
17,
4,
17,
23,
4,
-3,
14,
74,
2,
-31,
-25,
5,
30,
-1,
-96,
10,
21,
-15,
22,
41,
25,
4,
2,
-4,
12,
-30,
0,
6,
-17,
7,
29,
31,
-5,
-5,
3,
-13,
-14,
-53,
30,
15,
-44,
29,
36,
45,
-27,
-23,
31,
-15,
36,
-33,
-2,
18,
40,
12,
0,
20,
-3,
6,
10,
11,
17,
-15,
12,
-42,
1,
36,
-3,
1,
20,
10,
-38,
10,
15,
16,
0,
4,
8,
56,
1,
28,
21,
18,
-35,
24,
24,
47,
-12,
0,
-2,
1,
-17,
0,
24,
5,
48,
-30,
-13,
-20,
51,
-20,
0,
-29,
1,
-39,
1,
-28,
-37,
0,
59,
-3,
48,
5,
-35,
10,
29,
20,
-48,
39,
-48,
64,
-32,
32,
0,
16,
-10,
15,
-44,
13,
12,
-5,
65,
29,
18,
-7,
1,
1,
19,
18,
1,
38,
0,
-47,
-28,
40,
4,
-78,
26,
11,
3,
-2,
-13,
60,
15,
-21,
-46,
11,
-39,
-25,
-5,
28,
2,
-2,
12,
43,
19,
-12,
-52,
57,
56,
-8,
-10,
19,
14,
-21,
17,
31,
-7,
11,
4,
2,
-51,
-33,
-36,
-14,
14,
19,
-3,
17,
-34,
39,
-38,
27,
-15,
10,
-21,
-42,
-4,
9,
-17,
-7,
5,
52,
49,
-44,
32,
-5,
-28,
6,
-11,
0,
-6,
-25,
-2,
-20,
11,
-51,
-27,
3,
-11,
0,
11,
58,
-17,
43,
-36,
-5,
-4,
-24,
81,
-24,
9,
38,
17,
-38,
-11,
-39,
-16,
-2,
25,
-29,
17,
29,
-43,
10,
15,
-35,
16,
-7,
-36,
-32,
4,
25,
-39,
5,
-44,
14,
6,
-13,
31,
-55,
-5,
-79,
-19,
-13,
9,
20,
40,
-36,
-10,
19,
37,
-32,
32,
1,
36,
31,
-6,
4,
-26,
-1,
-8,
-31,
-20,
14,
-23,
28,
-8,
-11,
0,
-2,
-15,
-20,
7,
0,
-11,
-33,
-11,
-6,
29,
-59,
2,
-46,
4,
37,
-12,
0,
-7,
-4,
-18,
-51,
35,
-13,
15,
-30,
0,
44,
3,
20,
-52,
67,
-24,
-40,
-23,
13,
-29,
-5,
-35,
-26,
3,
65,
-27,
29,
22,
49,
5,
-9,
45,
13,
53,
6,
-24,
-10,
45,
23,
-16,
26,
-10,
12,
10,
-21,
29,
33,
18,
-7,
16,
-22,
14,
-4,
-3,
14,
16,
55,
11,
10,
22,
0,
-28,
-33,
-43,
-15,
-20,
-28,
2,
19,
1,
-6,
-11,
15,
8,
23,
-31,
27,
-89,
24,
60,
54,
-35,
11,
-34,
14,
-25,
39,
14,
-39,
43,
-2,
6,
-5,
15,
20,
-32,
7,
18,
-34,
31,
16,
-19,
9,
10,
12,
-3,
53,
22,
-35,
-17,
-7,
-17,
-49,
-53,
29,
11,
-60,
18,
-39,
-9,
10,
-59,
33,
-18,
-81,
-16,
3,
-49,
6,
11,
0,
28,
19,
-30,
-53,
-49,
-51,
11,
-34,
-39,
4,
-4,
50,
14,
0,
7,
-29,
-32,
-16,
21,
15,
-22,
-21,
-17,
8,
3,
1,
31,
-12,
-2,
-9,
36,
-49,
5,
34,
-17,
12,
-35,
20,
-5,
-5,
41,
-14,
-13,
0,
13,
-23,
-20,
16,
16,
52,
5,
-46,
18,
0,
-74,
-18,
44,
61,
-10,
14,
24,
7,
8,
-23,
-42,
-15,
-6,
32,
-9,
-7,
8,
-1,
6,
-18,
3,
-28,
33,
-52,
-19,
-6,
5,
29,
-15,
49,
16,
-7,
14,
-5,
-19,
-39,
-16,
-1,
48,
-26,
5,
20,
2,
-3,
-2,
9,
16,
5,
19,
20,
3,
-41,
25,
-32,
44,
-1,
-28,
-24,
33,
4,
-31,
-70,
34,
58,
21,
-1,
-80,
-5,
-36,
-42,
-11,
40,
17,
-3,
-30,
36,
-4,
-6,
-34,
0,
-5,
-25,
-29,
-42,
5,
-10,
-48,
44,
15,
21,
51,
-44,
-26,
-27,
-52,
-1,
-5,
14,
30,
-68,
3,
-37,
-52,
-48,
-29,
15,
-30,
30,
-20,
1,
30,
-6,
30,
-24,
9,
5,
27,
-17,
30,
-16,
0,
28,
-3,
5,
69,
-31,
-26,
-19,
-2,
-8,
-4,
-8,
-6,
21,
5,
0,
52,
-59,
25,
0,
-21,
17,
9,
9,
37,
-8,
71,
-6,
20,
-21,
-55,
-40,
49,
19,
19,
14,
-16,
-66,
-50,
12,
78,
39,
29,
-1,
46,
-36,
4,
-10,
-32,
13,
8,
14,
-28,
58,
22,
37,
56,
-29,
-43,
-64,
-27,
41,
7,
-52,
5,
-25,
28,
-56,
19,
-6,
26,
-3,
79
] |
Bcjtzel, J.
Horace J. Stone of Mattawan, Michigan, plaintiff, is a grower and also a buyer and shipper of grapes. In the year 1931 he disposed of his grapes through one Jim Portólas. The following year, when the resumption of business relations was sought by Portólas, Stone claims that he demanded some kind of security as a condition precedent to a renewal of his dealings with Portólas, who had become associated with one George Harris, a fellow countryman. A tentative contract was drawn between Stone and the two associates, Portólas and Harris, but it was never executed. Portólas was unwilling to appear as an active participant in the enterprise for fear that it might jeopardize further payments on a disability claim he was collecting from an insurance company. A second agreement named Stone and Harris as the only parties, although the evidence shows that Portólas took an active part in the enterprise.
The contract provided that Harris was to have the exclusive right of sale with respect to all U. S. No. 1 graded Concord grapes that Stone might raise or purchase and have ready for sale at designated shipping points in Michigan. In return, Harris covenanted that he would not purchase grapes from any other person or corporation. Trucking facilities for the transportation of the grapes to market were to he furnished at Harris’ own expense. It was stipulated that Stone was under no circumstances to he liable for the cartage or wages of the drivers transporting the fruit. The truck operators were not to he considered as Stone’s employees or agents but were solely under the control of Harris, who agreed to be solely responsible for any damage caused to or by the trucks. Harris was made liable to Stone for any failure on the -part of his drivers to collect and remit the sums owing for grapes delivered.
It was agreed between the parties that the ownership of the grapes was not to pass from Stone until they had arrived in the hands of the ultimate purchaser. Collections were to he made by the operators of the trucks and the moneys remitted to Stone by certified or cashier’s check. After deduction of the grower’s price and, in addition, one cent per basket as Stone’s commission for the purchase and handling of the grapes, the balance of the money collected was to he paid Harris. Stone was given the right to retain the first $300 due Harris as security. for the proper performance of the contract by the latter. Among Harris’ other obligations was the duty to furnish a pickup truck and driver for Stone’s use in hauling the grapes from the various vineyards to the shipping points at which the fruit' was to be loaded into trucks for transportation to market.
The question in this case arises out of that clause of the agreement obligating Harris to obtain a fidelity bond of $5,000 from a reputable surety company, approved by Stone, and indemnifying him against all losses by reason of Harris’ nonperformance or failure to carry out any of the terms and covenants of the contract, and further guaranteeing the fidelity of Harris in his .undertakings and agreements. Another clause of the contract required the issuance of cargo insurance on each truckload of fruit to the amount of $500. Harris was also obligated to pay the premiums on fidelity bonds covering all of his drivers.
Upon the execution of the contract, an effort was made to secure a Columbia Casualty Company bond guaranteeing the faithful performance of the agreement. A company agent in Kalamazoo,, to whom a copy of the contract was shown, transmitted the application to his. principal. The insurer declined to issue such a bond, but declared itself willing to issue, one indemnifying against larceny and embezzlement between employer and employee. A bond of this kind was issued and the premium paid by Stone.
Harris, through one Chris Athens and other countrymen, attempted to sell. the grapes- at wayside stands in Chicago and other cities. Stone delivered a large quantity, of grapes under the contract but never received full payment of the proceeds to which he was entitled; Harris, .and others, with whom he did business,..became involved in serious quarrels.Accusation,- counter^accusations and even arrests followed, but .all crimina,! charges -were eventually dropped..- Stone brought- the. instant suit against Harris and the Columbia- Casualty Company on the larceny and embezzlement bond, claiming that-Harris had embezzled. $1,499.35 due the former as proceeds of sales -made by Harris. -.
The testimony .-.is extremely conflicting- as to the manner- in which the' money-disappeared. -At the conclusion of plaintiff’s testimony, counsel for defendant Columbia Casualty Company moved for a directed verdict on the ground that the relationship of employer and employee did not exist, that the contract was one of sale between vendor and purchaser, and that the embezzlement and larceny bond issued did not cover the loss. At the conclusion of defendant’s testimony, this motion was renewed. In submitting the case, the court restricted the jury’s deliberations to the question of embezzlement and its extent, reserving to itself the decision as to whether the claimed defalcations were covered by the bond. The jury found that there had been embezzlements amounting to $1,242.92. Upon motion for a judgment notwithstanding the verdict, the court held that the bond did not cover plaintiff’s losses and entered judgment for defendant Columbia Casualty Company.
Plaintiff contends on appeal that the bond was issued to insuie the performance of a contract, the terms of which were made known to the insurance company’s agent in Kalamazoo, and that the insurer, in the possession of this knowledge, should be held to have issued a bond in conformance with the terms of the contract. The insurer claims, however, . that it unequivocally refused to issue a performance bond and only was filling to protect the plaintiff against acts of larceny, and embezzlement on the part of employees.
An examination of the contract discloses that a vendor-vendee relationship was established by its terms, as distinguished from the- employer and ■ employee relationship that the bond was designed, to cover.- Harris' was .given complete control over the methods employed in dis.posiiig of -the grapes ,with which .he was provided, by .plaintiff. He was to select and manage his own drivers and he was solely responsible for their negligence and wrongful acts. Stone’s right of supervision was restricted. He was only entitled to demand that sales be made at the highest market price obtainable and that all payments be made to him promptly. The means employed by Harris in marketing the fruit were entirely beyond Stone’s control.
Further, we do not believe that Harris even occupied the position of an independent contractor with relation to the plaintiff. It is true that the contract included a stipulation that title should remain in plaintiff until the arrival of the grapes in the hands of the ultimate purchaser, but this seems to have been designed as a measure of security. On the other hand, the presence of language in the contract referring to dealings between the parties in terms of “purchase” and “sale” and the fact that Stone was to receive the unvarying sum total of the grower’s price plus the cent per basket “commission” for handling, and Harris was entitled to the balance, however great or small, all lead us to the conclusion that the contract created a vendor-vendee relationship. We believe there is no ambiguity in the contract. If there were, we would be influenced by Stone’s testimony in which he declared that Harris was not an employee.
There is no doubt that, under a holding that the contract was one to buy and sell, the bond as issued was ineffective in protecting plaintiff against any failure of performance or wrongdoing under the agreement with Harris. Of course, the provisions of the bond were broad enough to allow the addition of more employees to the schedule appended to the obligation. The sole question here, however, is whether the plaintiff may recover upon the bond as set forth, in the declaration. No question of waiver is involved. The present action is one at law on a bond indemnifying against embezzlement and larceny. Under our holding that a vendor-vendee relationship existed between plaintiff and George Harris, acts of embezzlement or larceny were impossible, inasmuch as Harris really was owner of the grapes for all intents and purposes, despite the provision retaining title in Stone as security.
If the bond, as written, was the result of a mistake or fraud practiced upon the plaintiff, then plaintiff’s remedy is to seek reformation in a court of equity. While there is some conflict of authority in the various states, the law in Michigan does not permit reformation in a suit to enforce a bond brought on the law side of the court. In Michigan Stamping Co. v. Michigan Employers’ Casualty Co., 235 Mich. 4, it was stated:
“By its claim of estoppel the plaintiff seeks to have the court read into the policy provisions relating to the liability of the defendant not contained therein, or, in other words, to reform the contract to accord with the agreement of the parties at the time the application for insurance was made. The defendant is not here asserting rights under its contract. It simply denies liability thereunder. The burden is on the plaintiff to establish such liability.
“There is a clear distinction between the effect of an omission in a policy which the insurer relies on to defeat the action and one which the insured seeks to have incorporated therein as a basis for recovery. As to the former, this court has held that the neglect of the insurer to insert a provision of which its agent was informed at the time the application for insurance was made is, in legal effect, a waiver, and estops it from insisting that its omission constitutes a legal defense to an action on the policy. Gristock v. Royal Insurance Co., 87 Mich. 428; Simpson v. Ohio Farmer’s Insurance Co., 184 Mich. 547. As to the latter, we are of the opinion that the policy must be reformed in order for the insured to obtain the benefit of such an omission.”
See, also, Kleis v. Niagara Fire Insurance Co., 117 Mich. 469.
The judgment of no cause of action is affirmed, with costs to defendants.
Weadock, Potter, Sharpe, North, Fead, and Wiest, JJ., concurred. McDonald, C. J., did not sit. | [
31,
25,
34,
27,
-29,
26,
-5,
57,
15,
-7,
-38,
5,
-1,
22,
-21,
11,
4,
-21,
26,
12,
55,
-48,
72,
32,
-4,
-32,
-56,
-18,
9,
-17,
-28,
37,
36,
-48,
-29,
46,
14,
-16,
22,
-1,
40,
-17,
3,
70,
24,
-34,
15,
-67,
31,
-45,
-17,
-36,
25,
-1,
58,
-4,
1,
41,
26,
31,
6,
-30,
0,
-54,
20,
4,
4,
35,
-16,
30,
5,
-10,
49,
-13,
33,
-15,
22,
0,
-11,
0,
20,
-35,
25,
-29,
-52,
41,
14,
30,
-24,
-46,
-43,
17,
-4,
39,
-1,
13,
-29,
39,
-21,
9,
8,
-49,
-25,
31,
14,
18,
15,
-13,
-7,
45,
-2,
8,
42,
13,
2,
-16,
-38,
-1,
-46,
-74,
22,
-4,
-36,
-15,
-3,
-3,
-40,
17,
-61,
-24,
52,
-65,
0,
25,
-45,
25,
-18,
-12,
0,
54,
8,
43,
-44,
3,
57,
-1,
-15,
20,
-60,
17,
-10,
-16,
-43,
29,
-25,
-18,
61,
-23,
36,
-60,
7,
-24,
73,
-18,
-25,
23,
-34,
-19,
-10,
19,
-8,
1,
-33,
-16,
1,
-60,
16,
20,
-40,
-18,
-4,
27,
-6,
-5,
12,
-2,
-23,
54,
6,
40,
-8,
-12,
0,
28,
-26,
5,
-7,
16,
4,
-16,
-2,
10,
-11,
-19,
23,
0,
54,
40,
-14,
6,
-19,
-27,
-3,
-46,
-43,
-7,
-33,
-13,
50,
-30,
28,
-29,
4,
33,
-1,
-47,
-31,
-10,
-39,
-21,
-2,
-14,
55,
72,
-28,
-23,
61,
-44,
49,
44,
-9,
-22,
-42,
-49,
68,
17,
-23,
20,
-31,
-1,
8,
-24,
-18,
4,
-23,
-63,
5,
-2,
5,
27,
-1,
52,
-1,
58,
-24,
-28,
-44,
8,
9,
53,
-3,
-37,
67,
-15,
-37,
-36,
-24,
3,
7,
-6,
-12,
-16,
-39,
-14,
1,
16,
51,
10,
-35,
13,
48,
26,
25,
-25,
21,
-8,
-42,
0,
-22,
21,
-70,
19,
33,
-33,
-8,
-27,
-43,
-15,
34,
-35,
-6,
-73,
22,
-21,
-30,
7,
26,
4,
17,
-69,
28,
53,
14,
92,
47,
2,
22,
-13,
40,
-34,
-12,
7,
-6,
-32,
-26,
-20,
14,
15,
-2,
47,
20,
47,
40,
20,
-26,
8,
37,
-6,
7,
-7,
-35,
-44,
33,
24,
16,
41,
22,
30,
-7,
23,
22,
-32,
11,
56,
-61,
42,
-44,
5,
-17,
34,
-49,
48,
-55,
-11,
-54,
18,
-42,
-34,
-39,
54,
35,
26,
6,
-10,
38,
-33,
-31,
46,
-56,
-13,
-35,
-15,
-15,
37,
-12,
42,
4,
-38,
-26,
-5,
23,
43,
-2,
-54,
11,
33,
16,
-43,
9,
-33,
35,
-40,
18,
24,
16,
-19,
72,
-4,
10,
7,
0,
-28,
-41,
-23,
66,
-17,
-49,
19,
-67,
2,
-27,
15,
22,
-22,
16,
-27,
-59,
14,
-50,
43,
-7,
36,
5,
31,
-3,
9,
-53,
25,
65,
-6,
-26,
-5,
-29,
71,
-16,
37,
-5,
-33,
-14,
-21,
-37,
-8,
6,
0,
3,
-73,
28,
-28,
36,
-7,
-2,
52,
11,
3,
-4,
-25,
-31,
4,
-31,
51,
-21,
28,
21,
-10,
-6,
-30,
22,
23,
-14,
15,
11,
-17,
34,
-12,
-42,
1,
12,
-6,
47,
14,
-12,
-29,
9,
1,
-14,
7,
40,
-18,
33,
85,
-37,
-62,
-3,
2,
-9,
-31,
-46,
21,
25,
24,
5,
17,
-30,
55,
-30,
0,
28,
-3,
45,
1,
-33,
4,
28,
2,
-3,
-12,
11,
40,
38,
-35,
-21,
-17,
-4,
-14,
-26,
0,
-33,
-2,
9,
-18,
-3,
-19,
20,
-55,
-7,
13,
-42,
10,
-18,
-12,
-91,
31,
-18,
-1,
61,
-13,
-5,
32,
41,
57,
-10,
-6,
28,
17,
-17,
1,
3,
1,
-43,
-46,
-5,
-22,
-73,
-13,
-10,
79,
58,
-3,
-8,
-30,
7,
8,
14,
-28,
25,
17,
52,
-9,
-2,
1,
8,
-8,
-26,
-29,
-64,
-62,
53,
20,
0,
1,
-9,
3,
-7,
-33,
58,
4,
-1,
-96,
19,
18,
-52,
-3,
-20,
-42,
17,
65,
6,
42,
7,
34,
5,
-47,
-10,
-12,
-47,
29,
13,
17,
-41,
-43,
53,
-84,
-3,
43,
-24,
10,
-1,
-21,
24,
8,
-28,
9,
57,
23,
-69,
8,
-29,
-58,
14,
-26,
31,
-6,
-35,
-5,
-3,
14,
12,
22,
-3,
19,
59,
-48,
-16,
-48,
47,
-19,
12,
31,
16,
1,
-8,
21,
-8,
12,
28,
39,
-37,
16,
6,
16,
-48,
2,
-15,
-13,
10,
6,
48,
23,
-3,
-39,
-27,
33,
-2,
-6,
-33,
-10,
-43,
-30,
-13,
18,
36,
-51,
-7,
0,
16,
41,
0,
-37,
-31,
10,
-37,
-29,
35,
-22,
-11,
-6,
-46,
-13,
-66,
0,
46,
-19,
1,
-4,
21,
41,
0,
-7,
-53,
-16,
11,
-9,
-7,
26,
-15,
-16,
-26,
27,
1,
15,
-28,
-26,
37,
50,
-10,
-28,
-11,
14,
-51,
-38,
-7,
37,
-24,
-19,
-15,
6,
4,
-34,
28,
1,
-27,
-12,
-55,
25,
-51,
-14,
65,
20,
11,
-19,
-27,
-16,
-1,
-6,
56,
-27,
20,
-13,
71,
23,
27,
-48,
-7,
-30,
-14,
25,
-42,
44,
20,
-30,
-43,
3,
-31,
60,
36,
8,
12,
-34,
20,
35,
-20,
-32,
9,
-4,
43,
49,
-46,
9,
37,
16,
-32,
-29,
-10,
-19,
-25,
17,
22,
6,
-19,
-7,
44,
-46,
0,
17,
-34,
67,
10,
-17,
-34,
-16,
16,
-8,
-11,
0,
68,
-30,
-29,
2,
-17,
-52,
6,
-38,
-54,
67,
18,
12,
-32,
-48,
-4,
23,
-7,
-27,
-52,
-18,
-21,
-23,
-44,
10,
-11,
37,
34,
59,
30,
-7,
14,
-6,
13,
-22,
-21,
-20,
-17,
34,
36,
16,
-20,
-9,
39,
6,
29,
45,
17,
-53,
-88,
-22,
3,
-46,
-37,
0,
31,
12,
-5,
-10,
7,
6,
-42,
28,
-1,
60,
10,
-1,
8,
-45,
-18,
-29,
-63,
38,
-3,
39,
-19,
-3,
-30,
-11,
-17,
-66,
-31,
38,
11,
-7,
48,
67,
-23,
1,
38,
-41,
20,
1,
4,
2,
-22,
3,
18,
24,
39,
-21,
11,
-13,
11,
4,
-4,
-9,
18,
5,
-23,
13,
-17,
-36,
-60,
6,
50,
-28,
44,
43,
-29,
-17,
9,
-27,
63,
-27,
-15,
19,
24,
-12,
6,
-14,
50,
-29,
-17,
25,
55,
-5,
-8,
7,
-35,
60,
25,
9,
25,
-4,
-26,
22,
-1,
32,
-60,
59,
27,
26,
12,
1,
-18,
-54,
25,
-42,
-23,
1,
-9,
37,
-5,
61,
31,
24,
-63,
-13,
-19,
15,
-5,
34,
13,
71,
-7,
-47,
-16,
37,
24,
49
] |
North, C. J.
Plantiff filed a bill in equity to secure reformation of an accident insurance policy and to recover thereunder for an injury sustained. The relief sought was granted, and defendant has appealed. The fraud alleged as a ground of relief is that in securing plaintiff’s application defendant’s solicitor represented that the policy covered any injury plaintiff might receive while traveling in any motor vehicle upon a highway. Plaintiff alleges that he believed the statement of the defendant’s agent and relied upon it in applying for and accepting the policy; and that he did not read the policy. It is also urged by plaintiff that certain limitations upon indemnities provided for in this policy are not printed in the manner required by the statute, Comp. Laws Supp. 1922, § 9100 (157), which provides:
“No such policy shall be so issued or delivered * * * (6) unless the exceptions of the policy be printed with the same prominence as the benefits to which they apply: Provided, however, That any portion of such policy which purports, by reason of circumstances under which a loss is incurred, to reduce any indemnity promised therein * * * shall be printed in bold face type and with greater prominence than any other portion of the text of the policy.”
While operating a road roller on' the highway in going from one place to another where work was to be done, plaintiff’s right hand was caught in the cogs of the machine. He suffered the loss of his thumb, a large portion of the first three fingers, the tip of the little finger, and the little finger is stiffened. The attending physician corroborated plaintiff’s testimony that the injured hand is useless; and the claim is made that plaintiff’s injury is tantamount to the loss- of the whole hand.
Part three of the policy provides:
‘ ‘ The company will pay for loss of * * * either hand $1,000 * * * (sustained by the wrecking or disablement of any vehicle or car operated by any private carrier or private person in which the .insured is riding or by being accidentally thrown therefrom).”
This provision of the policy under which plaintiff seeks to recover, is all printed in ten-point type, commonly known as long primer; but the portion preceding the parenthetical marks is in the boldface type, while that included within the parentheses is in light-face type. Inasmuch as this provision for indemnity incident to the loss of á hand is all embodied in one sentence, we think the form of printing is acceptable and substantially in accordance with the requirements of the statute. The instant case differs from Van Dusen v. Business Men’s Ass’n, 237 Mich. 294, in that the provision here under consideration is all in ten-point type. In the Van Dusen Case there was a decided difference in the style of type used. There are seven exceptions to or limitations upon the risks covered by this policy, and each of these exceptions is printed in bold-face type and “with the same prominence as the benefits.” In its present form and terms, this policy has been ap proved by the State insurance commissioner in accordance with the requirements of the insurance law of this State. This, we think, should be somewhat persuasive of its compliance with the statute. Lundberg v. Interstate B. M. Acc. Ass’n, 162 Wis. 474 (156 N. W. 482, Ann. Cas. 1916 D, 667); and Berry v. Merchants Life & Cas. Co., 181 Wis. 487 (195 N. W. 335).
This clause under which plaintiff seeks to recover plainly provides that the $1,000 indemnity for the loss of a hand accrues to the insured only in case such loss is “ sustained by the wrecking or disablement of any vehicle or car operated by any private carrier or private person in which the insured is riding or by being accidentally thrown therefrom.” .Clearly plaintiff’s injury was not sustained in the manner specified. He was not riding in a vehicle that was in any way wrecked or disabled nor was he thrown therefrom. Plaintiff seeks to avoid this provision of the policy by showing that defendant’s solicitor in securing plaintiff’s application represented that plaintiff was protected under this policy while traveling on a highway in any vehicle, regardless of how he was injured. Plaintiff claims that he relied upon this false representation and because thereof he is entitled to have the policy so reformed that it will cover the injuries he received. May an insurance policy be thus reformed? The alleged misrepresentation was an oral statement of defendant’s solicitor. The application for the insurance was in writing. It contained no reference to the claimed oral misrepresentation. The printed policy was délivered to the insured in July, 1926. He was able to read and write, but he testified he did not read his policy. On the outside of the policy, printed in conspicuous type is the caution: “Im portant — Read Your Policy.” The policy contains the following provisions:
“(1) This policy * * * contains the entire contract of insurance.
“ (2) * * * No agent has authority to change this policy or to waive any of its provisions.”
Under the circumstances of this case, we. think this plainly worded policy should be held to be something more than a mere scrap of paper. The policy is the contract between the insured and the insurer. While, in an effort to protect the insured, somewhat different rules of construction may be applied to insurance policiés than to other contracts, the plain, unambiguoris provisions of written or printed insurance contracts ought not to be less binding upon the respective parties than like terms of any other contract. • Plaintiff’s failure to read his contract does not excúse him. In Cleaver v. Insurance Co., 65 Mich. 527 (8 Am. St. Rep. 908), this court held:
“The fact that the plaintiff may not have read the printed conditions of his policy, and relied, in ignorance of them, upon the implied or assumed powers of the agent, cannot help him. It was his business to know what his contract of insurance was, and there can be no difference in this respect between an insurance policy and any other contract. In the absence of any fraud in the making of the same * * * the insured must be held to a knowledge of the conditions of his policy, as he would be in the case of any other contract or agreement. When the policy of insurance, as in this case, contains an express limitation upon the power of the agent, such agent has no legal right to contract as agent of the company with the insured, so as to change the conditions of the policy, * * * either by parol or writing; and the holder of the policy is estopped, by accepting the policy, from setting up or relying upon powers in the agent in opposition to limitations and restrictions in the policy. ’ ’
The foregoing is quoted with approval in Serbinoff v. Motor Insurance Co., 242 Mich. 394. We need not go so far as to hold that under no circumstances may the insured secure reformation of his policy because of the fraudulent misrepresentation of insurer’s agent in securing the application for the policy. But where, as in this case, the only reason the insured was not apprised of the exact' terms of his policy therein, plainly stated, is his own negligence in failing to read Ms policy when delivered to him or within ten months thereafter, equity will not grant relief. Equity will aid the diligent; but under the circumstances of this case we should not make an entirely new and different contract between the parties under the guise of reformation. If we granted such relief in the instant case, instead of doing equity we would be working an injustice. The decree of the circuit court is reversed, and the relief sought by the plaintiff denied. Appellant will have costs.
Fead, Btjtzel, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
-5,
-32,
31,
46,
43,
-24,
60,
-64,
11,
22,
11,
13,
26,
28,
-5,
22,
59,
10,
60,
1,
-73,
-17,
-20,
-39,
-41,
-36,
40,
-49,
-15,
33,
-16,
20,
-10,
21,
-51,
25,
18,
15,
-7,
23,
23,
-28,
35,
3,
-7,
-15,
-17,
-8,
7,
-21,
18,
-14,
-13,
-50,
-17,
1,
26,
-17,
-1,
-22,
-34,
-40,
67,
-26,
-79,
17,
-3,
43,
13,
-35,
-10,
71,
3,
15,
-49,
-18,
-34,
13,
-32,
-17,
-13,
-25,
7,
-60,
12,
57,
-10,
8,
0,
-38,
-14,
-22,
-20,
-47,
-44,
-7,
-17,
21,
6,
56,
0,
-4,
-15,
-25,
7,
36,
30,
-60,
-10,
20,
16,
-27,
-7,
-40,
24,
-75,
0,
-5,
52,
6,
6,
-23,
29,
22,
-39,
55,
23,
-19,
-65,
22,
45,
-2,
-43,
42,
26,
-4,
-24,
-30,
-30,
9,
-30,
-18,
-29,
11,
-35,
18,
12,
-25,
-46,
8,
12,
28,
8,
-1,
-15,
-24,
-45,
-16,
35,
-14,
25,
-1,
23,
64,
-8,
-6,
5,
22,
21,
11,
9,
9,
23,
-36,
8,
29,
44,
-35,
-24,
21,
-9,
46,
-17,
-3,
-34,
-38,
3,
7,
13,
-46,
50,
-9,
-51,
28,
35,
-5,
2,
5,
30,
-43,
1,
-84,
6,
-3,
21,
4,
50,
0,
6,
-4,
6,
-18,
-30,
-43,
-2,
15,
19,
-35,
-4,
-54,
-11,
36,
30,
-33,
-53,
-36,
-11,
-22,
7,
-11,
-8,
16,
24,
21,
-38,
-2,
-20,
-90,
55,
52,
16,
13,
-12,
-44,
51,
12,
0,
-8,
-1,
-46,
20,
7,
-8,
11,
-45,
15,
48,
10,
-47,
26,
-33,
31,
-22,
19,
55,
-51,
9,
16,
-3,
-17,
36,
-37,
9,
4,
-32,
-88,
-21,
-2,
25,
-22,
28,
26,
-44,
-36,
3,
25,
2,
-30,
27,
-5,
22,
-42,
14,
27,
21,
17,
42,
0,
-60,
1,
1,
-34,
-20,
18,
20,
-20,
2,
-36,
-43,
-9,
-37,
-2,
-7,
-40,
51,
6,
-22,
-21,
9,
5,
9,
40,
-13,
-10,
17,
-29,
40,
-16,
12,
5,
-11,
-29,
-5,
-14,
-3,
-66,
-25,
19,
-6,
-8,
8,
2,
13,
1,
-40,
66,
20,
-5,
9,
-19,
-10,
-36,
22,
-28,
-20,
4,
62,
-32,
-54,
33,
27,
-15,
-3,
-9,
41,
24,
-20,
21,
-30,
77,
-12,
-11,
-18,
-25,
0,
-68,
1,
22,
-31,
13,
37,
-32,
-10,
-24,
7,
6,
-36,
-98,
-43,
1,
-32,
15,
22,
15,
-18,
15,
-32,
4,
-35,
44,
30,
15,
17,
17,
-34,
25,
10,
16,
-56,
6,
-61,
9,
4,
-3,
-25,
55,
87,
-7,
-17,
-3,
36,
21,
-25,
-30,
18,
-20,
15,
26,
-7,
-38,
20,
22,
15,
-23,
48,
-5,
-34,
-47,
4,
-6,
-8,
-26,
-1,
17,
-9,
20,
-24,
-17,
26,
-48,
21,
6,
48,
-1,
-21,
38,
27,
9,
-33,
-73,
26,
-3,
-22,
-2,
55,
-19,
10,
-19,
47,
-80,
-2,
-20,
-35,
21,
-13,
10,
-8,
-22,
-35,
12,
-36,
3,
-7,
-40,
30,
-23,
10,
42,
-14,
-6,
18,
-43,
-4,
-63,
-1,
0,
-64,
41,
-46,
-5,
-11,
13,
12,
37,
10,
-6,
-37,
3,
-1,
28,
-35,
10,
27,
11,
32,
23,
-10,
-2,
31,
3,
12,
-24,
-71,
28,
-40,
-51,
-25,
44,
2,
-43,
31,
-26,
-7,
-43,
0,
19,
6,
2,
-17,
-17,
-35,
77,
9,
9,
11,
-53,
2,
39,
45,
-6,
4,
-4,
30,
21,
22,
-1,
75,
-33,
9,
23,
9,
10,
7,
27,
29,
8,
48,
17,
-6,
-57,
-73,
-28,
22,
1,
-19,
14,
2,
-10,
-27,
3,
0,
2,
43,
-27,
-26,
13,
34,
16,
12,
-36,
45,
41,
7,
-17,
42,
0,
14,
-26,
-17,
11,
-28,
7,
-43,
36,
59,
-7,
-1,
23,
23,
-36,
-9,
29,
-15,
-16,
18,
-37,
-23,
12,
14,
36,
37,
27,
33,
47,
17,
39,
-35,
-3,
-3,
2,
32,
-30,
-41,
-20,
-52,
-9,
-33,
63,
-15,
-4,
-1,
-6,
59,
0,
-13,
2,
-18,
0,
-23,
-39,
-1,
42,
-12,
-27,
-10,
24,
-20,
38,
-77,
10,
-47,
-49,
-20,
-18,
8,
1,
51,
-19,
16,
20,
18,
-9,
29,
-8,
34,
9,
-23,
42,
-1,
16,
6,
-2,
26,
50,
-1,
15,
-33,
-11,
43,
-5,
-7,
43,
-47,
-13,
-31,
44,
47,
-41,
-12,
-7,
0,
6,
-14,
4,
-19,
-24,
5,
4,
22,
37,
49,
12,
-10,
-37,
33,
34,
42,
9,
-28,
-39,
-23,
-40,
24,
-18,
-7,
41,
24,
14,
3,
3,
-17,
-37,
-25,
-17,
-26,
25,
65,
-6,
25,
-9,
-22,
11,
13,
-2,
0,
-25,
-54,
20,
50,
33,
-11,
2,
-32,
-10,
-24,
-13,
-3,
-62,
17,
-21,
-17,
3,
23,
-48,
21,
23,
-20,
11,
-14,
-40,
18,
9,
4,
-47,
5,
38,
23,
-71,
-25,
-10,
28,
24,
51,
24,
-60,
-12,
-23,
-18,
6,
-27,
4,
18,
-27,
-36,
-18,
-15,
-31,
-8,
2,
-7,
-23,
10,
-26,
-8,
-36,
29,
26,
21,
22,
-56,
-41,
28,
23,
7,
-38,
8,
19,
5,
-50,
-11,
-11,
57,
-33,
1,
20,
6,
-21,
-2,
27,
22,
-12,
-34,
41,
10,
8,
86,
30,
-3,
-53,
-37,
37,
15,
-34,
40,
28,
-45,
-22,
10,
-4,
-40,
-16,
-48,
-24,
17,
-6,
-12,
36,
18,
-37,
-23,
-2,
-52,
-33,
23,
23,
-42,
9,
24,
-18,
2,
0,
39,
-34,
-28,
17,
52,
6,
-37,
33,
20,
3,
-26,
-14,
27,
-55,
-33,
-37,
1,
-63,
-18,
20,
5,
31,
-22,
-18,
-16,
-41,
39,
36,
3,
12,
27,
-15,
26,
7,
32,
19,
-53,
-32,
-8,
39,
-32,
52,
-5,
-22,
57,
46,
38,
-16,
22,
6,
24,
32,
1,
0,
-2,
67,
27,
22,
45,
16,
-21,
10,
31,
45,
-21,
4,
-65,
11,
13,
53,
11,
0,
14,
-36,
-50,
7,
3,
-30,
67,
-33,
12,
8,
26,
0,
-35,
43,
15,
8,
43,
-27,
26,
-33,
-21,
9,
-14,
25,
-5,
-55,
29,
22,
-3,
-53,
-35,
-10,
0,
34,
-15,
-20,
-43,
-11,
-21,
-12,
39,
-6,
-31,
32,
37,
0,
20,
27,
68,
-42,
44,
29,
-3,
48,
25,
-2,
-7,
10,
-15,
48,
39,
-22,
40,
33,
0,
49,
26,
0,
43,
19,
-43,
53,
10,
-43,
-23,
-1,
-51,
16,
30,
66,
22
] |
Clark, J.
The bill was filed to cancel a lease of a rooming house and to rescind a contract of purchase and conditional sale of the furniture and equipment therein. The writings were made at the same-time. The sale price of the chattels was $3,000, of which $1,150 was paid down and remainder to be. paid in monthly installments of $50 each. Relief is prayed on the ground of fraud. Material allegations of fraud were found true and decree ordered for plaintiff, from which defendant has appealed.
The finding of fraud respecting the sale must be sustained. The fact, as found, is that while plaintiff was informed there was a balance of near $200 unpaid on the furniture, the amount due and unpaid was nearly $900, largely if not wholly on title-retaining contracts. One of the larger creditors made demand on plaintiff and threatened action against her. It is urged that as the contract provided that plaintiff might pay any such indebtedness and deduct the sum “from the amount OAving by her under this contract,” the misrepresentation is in effect harmless. The amount owing on the contract was at the time about $50. Plaintiff was not required to provide, if she were able, money not due, for the purpose of paying defendant’s creditors. Rescission was properly decreed.
The trial court also found that defendant had materially misrepresented her interest in the real estate covered by the lease. The evidence of plain tiff is that defendant represented her interest on contract to be substantial and within one payment of $1,200 of a deed, while the fact was that defendant had paid nothing on her so-called contract, which was a contract paragraph added to a lease under which she held. It is unlikely that plaintiff would have made this deal had she known the true fact and nature of defendant’s interest. We are not moved to disturb the decree. Other allegations of fraud call for no discussion.
Defendant cites cases in support of the rule that a tenant cannot question the landlord’s title, which matter has no place in this case where the very existence of such relation is challenged on the ground of fraud.
As plaintiff filed bill praying rescission by decree, it was not necessary for her to attempt, before suit, rescission by her own act. Witte v. Hobolth, 224 Mich. 286.
Decree affirmed. Costs to plaintiff.
North, C. J., and Fead, Butzel, Wiest, McDonald, Potter, and Sharpe, JJ., concurred. | [
-1,
-5,
-20,
-4,
-21,
-9,
76,
5,
-22,
88,
26,
41,
14,
14,
-3,
-15,
27,
-7,
-22,
17,
-30,
-17,
-49,
-3,
7,
-19,
5,
-84,
-38,
54,
-12,
-25,
-12,
-2,
-24,
-19,
8,
18,
-3,
-3,
24,
20,
7,
-33,
14,
1,
-25,
-32,
46,
-1,
-7,
-22,
-11,
-50,
-17,
-11,
-66,
-53,
6,
-17,
-10,
-6,
11,
-17,
-30,
10,
30,
22,
9,
-16,
22,
28,
-1,
-11,
-16,
-38,
-33,
-5,
-37,
30,
9,
-67,
0,
28,
13,
-30,
21,
3,
-16,
-5,
-25,
-25,
2,
3,
-11,
-10,
47,
55,
48,
17,
-33,
-9,
-39,
-2,
37,
-9,
9,
-32,
-20,
-14,
-6,
-58,
27,
13,
-18,
-3,
-38,
-15,
-25,
-68,
50,
13,
0,
-46,
-11,
26,
28,
-26,
-48,
23,
42,
-35,
-84,
17,
10,
-27,
-8,
22,
-6,
-43,
-3,
-1,
-1,
-15,
-35,
47,
24,
-19,
-21,
-37,
-20,
38,
6,
52,
28,
-37,
-19,
-25,
-13,
-44,
46,
0,
-47,
-40,
12,
13,
-18,
13,
27,
-15,
10,
-39,
-56,
-29,
15,
21,
33,
-31,
-58,
-68,
-9,
31,
-4,
-40,
25,
-26,
31,
-18,
17,
4,
25,
-4,
-19,
31,
20,
22,
-31,
46,
23,
-29,
-56,
-80,
-54,
4,
-7,
-20,
47,
-17,
7,
6,
-23,
0,
-65,
-48,
-40,
-8,
6,
-43,
-10,
4,
23,
10,
-34,
35,
-56,
-25,
-7,
-9,
41,
4,
-60,
13,
-22,
-31,
4,
-30,
4,
16,
27,
14,
-29,
29,
-47,
-13,
-15,
-9,
-31,
21,
10,
-15,
-20,
-7,
-18,
70,
15,
-16,
4,
32,
-4,
-15,
-25,
0,
3,
-11,
15,
-19,
31,
2,
-2,
0,
8,
36,
8,
66,
22,
-15,
-69,
-7,
-8,
-8,
10,
-28,
-6,
-5,
-6,
23,
10,
30,
31,
-18,
0,
-38,
-11,
-4,
33,
33,
-39,
-21,
-16,
-31,
-15,
-80,
9,
44,
-14,
-2,
13,
43,
-23,
-29,
-23,
-3,
-12,
10,
13,
-33,
-39,
-19,
12,
-13,
57,
-1,
-13,
25,
17,
-33,
84,
-53,
-35,
29,
-18,
-25,
-4,
-27,
41,
-13,
22,
-46,
-88,
-29,
46,
6,
-17,
-9,
-12,
14,
-14,
-40,
-38,
13,
-33,
-1,
-53,
85,
41,
-41,
8,
12,
-15,
26,
25,
42,
-39,
-46,
3,
39,
-2,
-33,
21,
60,
-44,
21,
-22,
-7,
-37,
-12,
-48,
-24,
-45,
27,
3,
-56,
4,
35,
42,
11,
-43,
-61,
29,
13,
-31,
6,
-4,
-9,
-13,
-31,
-25,
-20,
-67,
5,
-14,
8,
23,
-41,
-48,
13,
23,
1,
-31,
32,
-7,
-35,
-20,
-20,
-32,
28,
19,
-27,
26,
21,
39,
22,
4,
-3,
23,
-35,
25,
2,
29,
49,
-31,
41,
10,
-20,
54,
-2,
-29,
-37,
-51,
37,
1,
2,
-37,
-1,
29,
-12,
-60,
10,
27,
-13,
-22,
-15,
14,
-3,
67,
40,
18,
-36,
13,
-10,
49,
-34,
13,
-27,
20,
-23,
21,
-7,
-20,
15,
-18,
-15,
23,
42,
-3,
20,
-21,
-35,
-18,
37,
6,
-3,
42,
-6,
-37,
29,
-18,
-53,
-30,
26,
19,
-6,
45,
30,
-7,
-10,
-14,
19,
-38,
12,
6,
-7,
23,
-11,
46,
-36,
-22,
37,
9,
65,
-17,
4,
31,
-12,
-21,
38,
70,
-40,
52,
36,
15,
8,
-28,
-19,
-54,
-19,
45,
19,
22,
36,
-10,
34,
-21,
-14,
-21,
12,
15,
4,
57,
4,
-68,
81,
4,
56,
29,
75,
1,
-43,
-19,
38,
-24,
-35,
28,
59,
-14,
31,
46,
-20,
25,
-14,
-15,
-9,
5,
-31,
27,
-30,
10,
-45,
-21,
61,
-31,
1,
16,
-2,
-19,
-25,
-9,
-22,
40,
-6,
-32,
20,
48,
-25,
15,
5,
20,
60,
19,
7,
-22,
-34,
21,
-32,
1,
-41,
-13,
-32,
22,
35,
-58,
13,
-35,
-36,
13,
-4,
14,
33,
-21,
17,
37,
30,
-16,
6,
20,
27,
23,
-33,
15,
45,
42,
-1,
12,
-4,
-7,
-2,
4,
0,
26,
25,
-25,
-22,
49,
-20,
-29,
57,
28,
10,
-14,
-32,
-20,
-13,
-7,
-26,
-31,
20,
-7,
4,
-9,
1,
0,
24,
37,
19,
21,
-10,
23,
-17,
51,
-28,
28,
-8,
6,
23,
2,
-20,
73,
-34,
4,
6,
-7,
24,
38,
18,
50,
-18,
-27,
-6,
-12,
-25,
1,
20,
21,
16,
-40,
13,
27,
-4,
9,
32,
10,
-30,
-47,
1,
10,
62,
34,
3,
27,
27,
4,
-31,
-20,
8,
-7,
11,
-7,
2,
-37,
-7,
51,
-36,
0,
-32,
-24,
30,
3,
59,
-32,
-59,
-10,
-11,
41,
-50,
-24,
-71,
32,
19,
19,
15,
2,
17,
-25,
1,
-51,
51,
7,
6,
9,
-21,
-24,
37,
-50,
-56,
45,
3,
4,
36,
33,
6,
35,
2,
7,
37,
0,
5,
-15,
-47,
28,
14,
25,
37,
-39,
26,
39,
27,
-9,
-35,
24,
-56,
-37,
16,
1,
-27,
10,
24,
29,
28,
43,
-20,
17,
-22,
-40,
54,
7,
-39,
17,
-16,
28,
37,
16,
-1,
-9,
-35,
-19,
31,
6,
-8,
-28,
-45,
12,
33,
-17,
16,
-17,
41,
-69,
21,
-35,
-47,
7,
-24,
-13,
-39,
-29,
15,
47,
25,
18,
2,
17,
21,
-40,
-3,
10,
-31,
-37,
9,
-51,
32,
-6,
-52,
10,
-25,
26,
28,
-1,
6,
-35,
20,
-69,
-15,
-5,
24,
13,
-4,
8,
27,
-1,
-28,
22,
-25,
20,
0,
-9,
-4,
-16,
25,
3,
-6,
23,
18,
43,
-53,
20,
-9,
24,
60,
59,
1,
22,
-32,
-26,
40,
23,
6,
38,
-7,
13,
-16,
33,
23,
-63,
37,
33,
62,
44,
-35,
-30,
42,
24,
15,
-9,
-25,
5,
1,
33,
-84,
-2,
7,
2,
3,
-25,
-5,
32,
-13,
23,
12,
-34,
3,
27,
38,
-4,
-4,
3,
11,
22,
2,
-5,
0,
12,
25,
-16,
-7,
19,
13,
21,
19,
-25,
27,
9,
-26,
-18,
64,
-23,
-63,
-20,
-11,
10,
10,
-31,
-19,
26,
14,
-10,
10,
-2,
-24,
22,
7,
-62,
43,
14,
26,
-6,
-5,
22,
-33,
-53,
-66,
-24,
-16,
-2,
-56,
14,
30,
-3,
53,
-37,
-19,
-4,
-23,
-43,
-13,
-27,
-15,
17,
-6,
-49,
47,
68,
-29,
-9,
-6,
-18,
32,
35,
30,
-26,
-22,
60,
19,
29,
18,
-36,
-56,
-14,
-38,
22,
13,
-4,
-17,
14,
21,
31,
-57,
45,
16,
13,
-4,
-34,
-17,
65,
51,
-20,
1,
-35,
11,
8,
0,
54,
47,
35,
35
] |
Fead, J.
This is review of a summary judgment for plaintiff.
In addition to the common counts, plaintiff’s original declaration contained a count on express contract to pay him $1,500 as compensation for his services as defendant’s attorney in a divorce suit which was discontinued before hearing. Plaintiff moved for summary judgment, supported by his own affidavit that such express contract had been made; that the specific sum of $1,500 had been agreed upon; and that $150 had been paid on account. He had summary judgment for $1,350. In opposition to motion to set aside this judgment, plaintiff made affidavit that, prior to the time of the agreement, he had been paid $320; that it was agreed between him and defendant that the fair and reasonable value of plaintiff’s services was in excess of $1,820; that the parties then agreed upon compensation of $1,500 in addition to sums already paid; that defendant paid him $150 and promised to pay the balance within six weeks. The judgment was set aside on the ground that defendant’s affidavit of merits had denied express agreement for a specific amount.
Plaintiff, by leave of court, then filed an amended declaration on the common counts and with special count on express contract to pay him reasonable compensation. He made a new motion for summary judgment, supporting it by his own affidavit that the agreement had been made as claimed in the amended declaration, and that the reasonable value of his services was $3,000. Defendant filed a new affidavit of merits, in which, among other things, he stated he had paid plaintiff $470, “which reasonably if not overpaid plaintiff for the necessary work he did in that case in the interest and behalf of this deponent, and deponent never agreed to pay any further sum of money.” ■
The affidavit was made by defendant, a layman, and was not supported by the affidavit of an attorney of the value of plaintiff’s services. Because a layman is not a competent witness to testify to the value of an attorney’s services, Howell v. Smith, 108 Mich. 350, the court held the affidavit of merits insufficient, under that part of Circuit Court Rule No. 34 which reads:
“The facts so stated shall be the personal knowledge of the affiant, shall be set forth in the affidavit with particularity, and the affidavit shall show affirmatively that the affiant, if sworn as a witness, can testify competently thereto.”
Summary judgment for $2,530 was entered for plaintiff, and a motion to vacate was denied.
The province of the court, on motion for summary-judgment, is to determine judicially whether there is an issue of fact which, if resolved in favor of defendant, would preclude a verdict for plaintiff in whole or in part of his demand. Appelbaum v. Gross, 191 N. Y. Supp. 710; Jones v. Stone, 70 L. T. R. (N. S.) 174. This is not to be determined alone from the affidavits on motion for judgment, but from all the pleadings and files in the cause. 34 C. J.. p. 201. Plaintiff, upon his own pleadings and affidavits, established an issue of fact on the measure of compensation. Unless he should take the incredible position of denying the truth of the affidavits filed on his first motion for judgment, the jury could find the value of $1,500, established by express agreement. Summary judgment in excess of that amount, less credits, was not proper in any event.
The affidavit was not insufficient" on the ground that defendant was not a competent witness to the value of an attorney’s services. Circuit Court Rule No. 34 requires facts to be stated with particularity. No one can state as a fact the value of extensive legal services. He can only give his opinion. The value is based upon a number of considerations, including the professional reputation and standing of the attorney, the difficulty and importance of the case, the amount of time spent and work performed, the sum involved, the result of litigation, etc. 6 C. J. p. 761; Steele v. Hammond, 136 App. Div. 667 (121 N. Y. Supp. 589). It is not like wages, goods, and even some minor professional services, with a market value which may be stated as a fact, or, by reason of local custom, have a definite price.
The rule is not to be construed as requiring averment as a fact of what is not a fact but an opinion. Prom the nature of the case, the value of the services can only be determined upon trial. The general statements in the affidavit of merits covered all matters and rendered it sufficient.
Judgment will be reversed, with costs to defendant.
North, C. J., and Butzel, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
-1,
-36,
-13,
6,
9,
-30,
66,
-7,
-14,
12,
28,
-51,
67,
23,
-28,
-28,
27,
-27,
8,
-57,
-53,
-53,
14,
6,
24,
18,
-1,
16,
5,
16,
24,
24,
-58,
-6,
-32,
1,
-17,
-10,
-23,
-2,
29,
-11,
-21,
-42,
-35,
-49,
1,
-23,
30,
-30,
-5,
-33,
2,
-16,
31,
-35,
16,
-6,
-42,
8,
35,
-16,
-39,
-5,
-57,
1,
-16,
49,
17,
-18,
-64,
17,
48,
15,
-12,
-88,
-5,
19,
23,
-19,
8,
-4,
-28,
-10,
40,
5,
15,
-16,
7,
-13,
-24,
18,
-3,
-20,
-61,
57,
35,
13,
42,
50,
11,
1,
-21,
6,
9,
21,
-21,
-39,
22,
11,
23,
0,
50,
-34,
-56,
-18,
2,
-6,
3,
-30,
0,
-4,
45,
-8,
-25,
2,
40,
-35,
-6,
-8,
66,
-10,
-66,
55,
22,
-7,
17,
-50,
-16,
-32,
19,
-47,
-14,
-3,
30,
38,
7,
12,
-19,
-23,
-10,
59,
11,
-18,
1,
-19,
-8,
-69,
33,
-43,
51,
15,
-34,
16,
-7,
-22,
16,
8,
5,
-7,
23,
-10,
15,
-50,
-7,
13,
0,
-2,
-30,
-3,
-16,
45,
-44,
-3,
23,
-9,
-27,
-4,
20,
-21,
-24,
13,
-3,
-21,
8,
18,
6,
3,
0,
-12,
26,
-67,
18,
44,
-48,
-15,
25,
-42,
-7,
29,
-15,
-53,
-40,
-55,
-67,
-49,
47,
8,
0,
11,
-23,
-18,
-34,
-28,
-22,
-36,
4,
-4,
26,
-9,
-33,
38,
-26,
0,
0,
-52,
-15,
31,
33,
-16,
-21,
2,
-16,
-15,
0,
21,
4,
0,
21,
-7,
-23,
55,
-11,
64,
-70,
-23,
3,
74,
-10,
7,
-52,
86,
8,
58,
-22,
9,
-31,
48,
13,
30,
15,
-4,
32,
19,
51,
-9,
-71,
32,
-39,
29,
-48,
8,
-83,
2,
-44,
23,
59,
33,
44,
29,
56,
-33,
-47,
-20,
37,
33,
-24,
-6,
-9,
15,
-3,
-21,
28,
44,
-28,
-41,
-14,
-9,
-9,
-3,
29,
54,
17,
-12,
19,
-8,
-44,
-43,
24,
-76,
-8,
12,
-23,
15,
24,
-41,
52,
-15,
-27,
13,
-20,
8,
7,
-20,
-17,
-36,
32,
3,
-16,
-26,
18,
-2,
-2,
5,
8,
56,
10,
-20,
-32,
-1,
-67,
-22,
-14,
15,
-15,
-20,
29,
1,
47,
-18,
-1,
-12,
13,
-62,
-14,
67,
-13,
-25,
-32,
53,
-17,
0,
-28,
4,
-17,
-6,
29,
-25,
-45,
82,
-32,
-5,
-42,
36,
22,
7,
-68,
-54,
-40,
14,
-55,
-26,
44,
8,
43,
24,
15,
-16,
-50,
24,
-12,
1,
23,
2,
-56,
28,
11,
-55,
-49,
41,
-6,
16,
-25,
-17,
-3,
-29,
88,
-8,
9,
31,
59,
3,
-22,
-4,
24,
-32,
-27,
9,
14,
-26,
-38,
44,
11,
-25,
71,
15,
-12,
4,
-36,
26,
-14,
-8,
3,
-18,
31,
4,
-46,
12,
0,
25,
38,
-8,
54,
60,
19,
-17,
23,
-22,
14,
-26,
-9,
2,
19,
4,
-5,
-43,
-33,
28,
6,
21,
-5,
5,
14,
41,
-26,
-26,
-11,
-34,
-13,
0,
8,
23,
19,
-30,
-23,
24,
-52,
-34,
-6,
-45,
-13,
-58,
-7,
63,
-42,
-5,
1,
0,
-44,
15,
4,
11,
7,
-41,
-1,
-1,
-15,
-8,
16,
-5,
9,
0,
4,
25,
-33,
6,
17,
-29,
-5,
69,
18,
-10,
-38,
15,
32,
-31,
-20,
37,
-15,
10,
-9,
99,
6,
-41,
3,
2,
4,
12,
6,
-1,
-25,
52,
15,
-33,
5,
25,
-18,
-8,
-6,
56,
13,
-52,
64,
46,
-46,
18,
76,
-34,
14,
-78,
-6,
23,
-11,
14,
37,
-19,
14,
-12,
29,
-7,
-21,
-37,
-4,
26,
-7,
-15,
-8,
-7,
-13,
-44,
28,
25,
32,
-3,
-15,
0,
68,
15,
27,
6,
-6,
11,
9,
-27,
-65,
-41,
-3,
-14,
-4,
54,
65,
-16,
-81,
-24,
11,
4,
-34,
28,
-24,
-37,
33,
21,
0,
16,
4,
-24,
34,
-37,
13,
75,
56,
21,
39,
-39,
62,
-25,
-19,
-35,
-59,
-30,
41,
-55,
20,
28,
-3,
31,
-10,
-1,
6,
-20,
57,
11,
28,
16,
41,
-47,
-45,
5,
36,
-24,
-4,
54,
-19,
1,
0,
-1,
12,
8,
15,
7,
17,
12,
6,
20,
28,
57,
53,
9,
64,
9,
36,
-35,
47,
-14,
52,
8,
38,
-2,
30,
1,
-25,
-39,
-8,
36,
-77,
-31,
-13,
3,
24,
-40,
-6,
25,
-43,
-27,
15,
11,
9,
12,
-44,
13,
0,
-61,
-10,
-39,
-34,
-12,
2,
21,
9,
-15,
-36,
-11,
-37,
58,
5,
17,
-13,
13,
-33,
0,
29,
-4,
6,
-33,
21,
-42,
70,
34,
8,
-10,
16,
39,
-22,
32,
-28,
7,
9,
-38,
-53,
-21,
53,
-36,
44,
-12,
-13,
20,
34,
48,
-44,
31,
58,
-10,
23,
34,
-44,
43,
6,
-9,
19,
2,
-57,
-3,
-6,
-19,
53,
10,
-38,
-4,
-27,
19,
-31,
8,
47,
-3,
2,
45,
-3,
-12,
2,
-25,
60,
0,
-14,
45,
-17,
-58,
28,
-52,
5,
85,
6,
-91,
0,
-34,
24,
-9,
4,
-11,
-24,
-16,
-5,
-5,
-1,
37,
26,
13,
-20,
14,
32,
-34,
20,
12,
0,
6,
-3,
1,
18,
0,
-39,
11,
6,
32,
54,
-16,
-1,
-31,
-36,
-11,
-21,
-9,
20,
-64,
7,
20,
-3,
24,
14,
-56,
-32,
-11,
55,
-54,
-25,
-5,
25,
-35,
-38,
21,
8,
-78,
39,
33,
13,
-29,
-48,
11,
29,
2,
4,
-26,
-23,
24,
-30,
28,
26,
13,
-34,
27,
68,
-4,
42,
40,
19,
29,
-11,
33,
43,
-25,
-22,
-10,
29,
3,
-63,
6,
-16,
10,
58,
-43,
-46,
56,
24,
-35,
23,
-18,
8,
-28,
10,
-42,
-4,
3,
34,
4,
-26,
17,
37,
5,
29,
-6,
-10,
23,
36,
-7,
22,
21,
17,
26,
42,
7,
-3,
28,
27,
-9,
-30,
-25,
52,
-39,
25,
58,
-41,
-15,
17,
-31,
35,
11,
37,
4,
-3,
14,
-21,
-3,
-12,
-51,
21,
0,
2,
-21,
-120,
-9,
-29,
-6,
-67,
23,
38,
59,
-1,
-6,
43,
-21,
-23,
5,
45,
52,
13,
-2,
41,
-45,
46,
3,
-41,
31,
27,
-33,
-38,
-39,
-8,
-41,
11,
-17,
-79,
-31,
11,
-36,
-22,
-16,
-1,
-16,
8,
-17,
-8,
-7,
36,
5,
-4,
-19,
0,
-47,
69,
-40,
-5,
12,
-23,
20,
30,
-26,
-24,
-36,
26,
63,
-25,
15,
-9,
-40,
31,
42,
-15,
57,
-35,
-7,
4,
-13,
0,
-3,
57,
23
] |
Wiest, J.
The afternoon of January 27, 1925, plaintiff was a passenger upon a bus, and when the bus reached the end of its run it stopped on the south side of West Jefferson avenue, in the center of a block, and just within the western limits of the city of Detroit. The bus faced east and plaintiff alighted therefrom, walked to the front end and started across the street. As he stepped beyond the bus he was struck on his right forearm by the door handle of an automobile going east on the same side of the street and driven by defendant, and received injury. Plaintiff brought this suit to recover damages, was awarded $1,500 by a jury, but, on motion, the court entered judgment for defendant, under a finding that plaintiff was guilty of contributory negligence as a matter of law. Plaintiff reviews by writ of error, claiming he was not guilty of contributory negligence as a matter of law, and insists the verdict of the jury should control the judgment.
We assume, for the purpose of decision, that defendant was guilty of negligence. The accident happened in the middle of a block, the bus had come from the west, had stopped, was facing the east and upon the right side of the street near the curb. West Jefferson avenue, at that place, was narrow and had a single car track in its center. Defendant’s car approached the standing' bus from the west at an admitted unlawful rate of speed, and was passing the bus when plaintiff stepped in its path from in front of the bus. Plaintiff claimed that, until he passed the bus, he had no view of traffic approaching from the west, and when he reached a point where he had such view he saw the automobile about 25 feet away, and approaching at a high rate of speed close to the side of the standing bus, that he attempted to step back, threw his arms up and outward, and a door handle of the automobile struck his right forearm. Defendant claimed that plaintiff suddenly walked from in front of the bus into the side of his automobile. The injury received by plaintiff lent some probability to this claim, but plaintiff’s claim that he threw his arms up also explained why he was not struck by any other part of the automobile.
Walking from behind and going beyond a standing vehicle, into the pathway open to traffic, is a fruitful source of accident, and an ordinarily prudent man will, in view of the possible danger in doing so, exercise the essential precaution of ascertaining whether the way is open, and may reasonably be expected to remain open to his crossing. Plaintiff’s own showing was that he could not ascertain, by view, the danger he encountered until he was in a place where a view and the danger were simultaneous and there was no escape. He was careless. Common sense so dictates, and the law so holds. Citation of authority would be superfluous.
The court was right, and the judgment is affirmed, with costs ¿gainst plaintiff.
North, C. J., and Fead, Clark, McDonald, Potter, and Sharpe, JJ., concurred. The late Justice Fellows took no part in this decision. | [
-53,
19,
0,
-2,
31,
-24,
19,
-18,
-18,
17,
-76,
-43,
41,
4,
-37,
12,
25,
18,
-50,
7,
-32,
-27,
-19,
-29,
8,
13,
47,
-19,
7,
-1,
68,
-40,
43,
0,
-41,
-14,
48,
14,
11,
17,
68,
31,
-47,
-8,
40,
-15,
21,
-42,
49,
-36,
-14,
34,
-18,
-54,
-17,
-46,
45,
52,
-24,
25,
12,
-5,
-55,
-16,
-28,
-8,
26,
40,
-67,
37,
-73,
-3,
18,
-71,
-34,
8,
-42,
48,
-2,
-17,
-31,
-28,
34,
-8,
-32,
38,
-55,
-39,
-73,
-35,
28,
43,
-2,
-9,
4,
42,
30,
0,
-20,
8,
-42,
32,
-34,
1,
-32,
18,
-10,
-47,
21,
-11,
-34,
79,
24,
27,
7,
-29,
31,
21,
72,
51,
19,
-19,
11,
27,
-15,
-16,
-57,
25,
-18,
-28,
30,
65,
-17,
82,
8,
21,
-63,
-37,
16,
41,
28,
-9,
-6,
-9,
-40,
30,
-1,
36,
4,
-37,
-32,
-5,
-6,
-11,
-18,
-15,
-7,
17,
32,
-3,
14,
-13,
26,
24,
-1,
-1,
-14,
34,
8,
8,
-31,
-26,
62,
-53,
49,
72,
-24,
-3,
-70,
-29,
-12,
35,
15,
17,
-28,
-65,
24,
9,
-47,
0,
41,
0,
-50,
-13,
3,
60,
20,
-16,
14,
-36,
30,
-62,
-32,
-27,
-43,
44,
7,
8,
23,
5,
11,
-27,
2,
-22,
17,
-30,
8,
-44,
-21,
-44,
-10,
4,
0,
-15,
-21,
-24,
-70,
-35,
-6,
23,
28,
-3,
-17,
26,
-11,
-25,
-33,
-28,
33,
-20,
36,
-2,
7,
-24,
-16,
23,
4,
-11,
9,
-1,
33,
-5,
-21,
-32,
-43,
-30,
27,
-32,
-13,
3,
14,
69,
-16,
47,
45,
28,
11,
20,
-19,
-64,
-37,
8,
-36,
38,
-50,
-50,
-25,
-5,
46,
32,
-3,
-18,
-42,
45,
32,
48,
15,
22,
3,
-16,
29,
-55,
20,
15,
13,
11,
57,
28,
-63,
-18,
46,
-11,
5,
49,
-3,
0,
-7,
-2,
28,
-7,
-10,
-19,
-8,
11,
76,
-6,
13,
-13,
37,
-22,
-1,
49,
-16,
-15,
-11,
-10,
10,
-20,
-21,
-5,
-11,
48,
12,
50,
-12,
-81,
31,
10,
12,
-31,
26,
46,
-32,
7,
12,
-29,
37,
39,
18,
-39,
-44,
-43,
17,
-42,
-39,
-23,
53,
-15,
-7,
8,
34,
-22,
7,
59,
6,
-29,
1,
47,
-27,
80,
-8,
-28,
-2,
0,
-1,
-31,
16,
-1,
-43,
77,
-31,
-26,
6,
-5,
-17,
-4,
-36,
-32,
-23,
-5,
-44,
27,
31,
6,
-22,
-11,
-18,
33,
-38,
3,
16,
32,
59,
-5,
-33,
-40,
45,
0,
-3,
-36,
-36,
-19,
62,
-14,
-2,
0,
32,
-7,
-23,
-30,
22,
57,
37,
-38,
33,
0,
11,
2,
-14,
-49,
27,
-51,
44,
3,
4,
-28,
14,
-59,
9,
6,
7,
2,
-41,
27,
-6,
9,
-9,
-27,
-9,
26,
69,
16,
65,
15,
14,
13,
0,
-9,
39,
15,
11,
-37,
1,
-5,
33,
-19,
12,
-1,
8,
-34,
18,
8,
-56,
29,
24,
-9,
-25,
-10,
15,
8,
-66,
-13,
20,
-48,
4,
-1,
24,
16,
-33,
-5,
23,
5,
3,
0,
1,
-15,
-56,
55,
-48,
-43,
-11,
40,
-47,
-5,
33,
-17,
-5,
-41,
-25,
-25,
-5,
17,
4,
10,
4,
2,
-22,
10,
38,
-13,
-28,
-12,
21,
3,
-52,
-38,
42,
-4,
-65,
-65,
83,
-45,
16,
-6,
0,
-41,
-33,
-39,
-1,
-20,
0,
23,
35,
-44,
22,
-17,
-33,
30,
45,
30,
49,
4,
0,
-18,
6,
-24,
32,
-31,
23,
-3,
0,
17,
27,
22,
37,
31,
-3,
3,
32,
-3,
-67,
45,
3,
-31,
-74,
-2,
-10,
22,
-66,
-10,
1,
28,
-6,
5,
-43,
23,
18,
-17,
-3,
24,
34,
19,
-1,
7,
98,
-6,
57,
45,
19,
-24,
-4,
-4,
-61,
32,
17,
10,
-51,
-27,
16,
-60,
44,
34,
-18,
16,
-24,
2,
-15,
11,
57,
26,
15,
-28,
12,
40,
17,
5,
13,
-32,
-49,
-53,
-43,
15,
-71,
-16,
-10,
9,
12,
33,
16,
7,
-5,
3,
33,
-36,
-8,
4,
-47,
32,
-83,
-34,
-15,
37,
-14,
-29,
-16,
18,
6,
-25,
-34,
0,
4,
14,
-45,
-37,
-71,
-4,
-12,
-41,
-9,
1,
11,
-19,
58,
3,
67,
1,
-28,
58,
3,
27,
6,
-5,
9,
30,
36,
-39,
-17,
-1,
85,
-51,
-18,
37,
5,
19,
37,
27,
71,
-23,
-54,
18,
-12,
-15,
-18,
24,
-62,
8,
-7,
9,
-39,
-23,
11,
-10,
-35,
-10,
21,
41,
47,
-21,
-38,
22,
-16,
-16,
43,
-81,
50,
5,
24,
-12,
4,
9,
28,
-39,
32,
6,
-12,
-7,
27,
4,
43,
-51,
14,
41,
42,
20,
-76,
-58,
-29,
0,
40,
-1,
-30,
-4,
85,
-23,
-13,
-18,
14,
36,
-13,
-21,
-11,
15,
60,
-4,
-13,
25,
-43,
-20,
-14,
-26,
-64,
16,
1,
-57,
-76,
69,
-10,
-45,
28,
10,
-35,
-11,
-18,
25,
18,
6,
7,
12,
57,
24,
5,
-2,
14,
-3,
-13,
9,
28,
-24,
48,
-12,
8,
21,
-19,
17,
1,
-7,
25,
81,
25,
0,
31,
30,
-6,
-5,
11,
0,
51,
-3,
-29,
27,
2,
31,
-24,
-33,
27,
-23,
-12,
-26,
-8,
-19,
-16,
-30,
-37,
40,
-13,
42,
43,
25,
-16,
-16,
48,
40,
-34,
40,
32,
-56,
10,
4,
16,
6,
-68,
0,
-14,
10,
-19,
-4,
-3,
-13,
3,
16,
-39,
-30,
-59,
-11,
21,
-22,
-50,
13,
8,
-1,
6,
61,
7,
-32,
15,
19,
48,
4,
17,
0,
-4,
-21,
9,
62,
-34,
13,
-12,
-31,
-79,
47,
11,
0,
8,
-48,
-28,
-33,
-57,
24,
51,
-30,
-15,
13,
7,
18,
-32,
-2,
26,
40,
-44,
-53,
-1,
-6,
33,
33,
28,
16,
-41,
5,
49,
13,
6,
21,
19,
-33,
-17,
2,
-14,
6,
5,
44,
-10,
-12,
-5,
-34,
-29,
-39,
9,
-23,
-24,
-18,
63,
16,
-11,
28,
-32,
-61,
-3,
21,
-41,
31,
9,
11,
-53,
18,
15,
18,
-29,
-18,
-9,
0,
56,
1,
24,
-15,
40,
-19,
-2,
-25,
0,
35,
-24,
18,
-3,
-37,
5,
-13,
-11,
7,
-40,
-28,
11,
-34,
1,
28,
-17,
-9,
29,
-12,
-45,
0,
-72,
76,
-28,
23,
-33,
-33,
19,
10,
5,
-21,
-34,
-11,
32,
7,
-13,
7,
36,
20,
-15,
13,
-22,
52,
0,
-9,
0,
26,
-48,
-35,
-33,
-2,
18,
44,
47,
43
] |
Clark, J.
Plaintiff sued on the note of defendant, a Michigan corporation, due October 22, 1928, and had judgment which defendant reviews on error.
Act No. 335, Pub. Acts 1927, pt. 2, chap. 1, § 1, provided that “no corporation shall interpose the defense of usury to any cause of action hereafter arising.”
The cause' of action arose when the note became due. The act was then in effect. Defendant sought fo interpose the sole defense of usury. This the act forbids. Miller v. Reid, 243 Mich. 694.
Judgment affirmed.
North, C. J., and Fead, Butzel, Wiest, McDonald, Potter, and Sharpe, JJ., concurred. | [
-45,
33,
22,
-44,
-41,
24,
67,
-41,
18,
75,
-6,
35,
51,
14,
-8,
10,
-9,
-13,
23,
21,
-2,
-19,
-61,
-30,
-39,
-5,
50,
18,
-3,
5,
-10,
-30,
-33,
-23,
-58,
-21,
-7,
6,
26,
-7,
5,
6,
27,
23,
2,
-41,
5,
-42,
-6,
5,
51,
6,
-30,
3,
-39,
2,
5,
-35,
-37,
-9,
-4,
-48,
70,
42,
30,
-27,
-30,
30,
25,
31,
-37,
23,
-2,
-5,
24,
-74,
0,
-36,
-32,
-40,
10,
-34,
14,
-1,
-59,
7,
-18,
2,
-54,
1,
6,
5,
-48,
-13,
25,
26,
10,
27,
-3,
-2,
33,
-15,
-46,
17,
-1,
42,
-61,
-18,
-14,
22,
14,
-8,
-13,
-51,
-21,
-12,
-48,
4,
35,
-32,
17,
45,
7,
0,
9,
72,
-63,
-37,
-5,
40,
24,
-36,
-31,
34,
-63,
2,
0,
-27,
-1,
-26,
-29,
11,
-15,
-1,
5,
33,
-33,
6,
10,
-28,
-43,
19,
59,
39,
-41,
15,
-12,
-7,
53,
-65,
36,
-13,
-2,
16,
-10,
36,
-47,
22,
5,
-45,
-21,
-17,
-49,
-40,
3,
25,
16,
-39,
-36,
-28,
6,
35,
32,
-19,
17,
-1,
-15,
-44,
-15,
46,
16,
3,
-11,
26,
13,
19,
-6,
22,
67,
0,
-22,
-38,
-36,
-25,
-23,
-17,
-7,
-21,
-53,
20,
-9,
10,
-13,
-21,
11,
17,
-10,
-68,
16,
29,
-6,
8,
15,
82,
-16,
-48,
-6,
-26,
-38,
-11,
8,
-51,
10,
-20,
-15,
15,
21,
21,
23,
61,
-30,
-4,
-17,
-20,
9,
-3,
-2,
16,
16,
12,
25,
-3,
32,
36,
-26,
-7,
-17,
-9,
6,
6,
-30,
39,
-54,
15,
16,
-23,
24,
23,
-40,
-24,
5,
-54,
36,
34,
-38,
-64,
2,
-43,
-9,
-35,
-24,
-12,
-33,
10,
-18,
2,
-42,
16,
-35,
-35,
59,
-19,
46,
0,
80,
14,
-20,
3,
-13,
-1,
-15,
-23,
3,
10,
3,
-54,
-46,
-31,
-31,
-48,
-14,
26,
-66,
-51,
27,
-20,
-8,
28,
24,
-30,
42,
32,
-14,
-23,
-7,
20,
43,
-20,
0,
14,
-9,
-29,
14,
49,
2,
-14,
58,
-4,
-11,
8,
22,
13,
9,
-10,
-14,
25,
2,
9,
0,
16,
-16,
-22,
-25,
-5,
56,
31,
21,
-13,
-88,
11,
8,
19,
-24,
-4,
50,
1,
-28,
15,
-13,
90,
-1,
22,
-51,
-22,
-28,
14,
-7,
2,
-33,
41,
-22,
-76,
15,
17,
48,
23,
-20,
-12,
-22,
23,
-39,
10,
16,
1,
-8,
-46,
-22,
0,
-57,
-19,
-16,
26,
36,
-37,
9,
-13,
-4,
30,
21,
33,
-30,
-2,
-7,
11,
-18,
-6,
43,
5,
53,
-19,
43,
15,
-8,
-46,
24,
-58,
51,
7,
-40,
3,
26,
51,
-14,
-38,
13,
-33,
-54,
8,
42,
-15,
17,
61,
13,
32,
26,
-37,
-34,
-9,
15,
-57,
96,
1,
-54,
9,
5,
41,
31,
0,
3,
-37,
1,
-31,
0,
-21,
-3,
-2,
13,
-39,
55,
11,
-45,
-25,
2,
18,
-19,
-13,
13,
11,
-19,
-4,
-53,
40,
14,
4,
-8,
-47,
-31,
-48,
-6,
11,
10,
58,
-29,
23,
-15,
-19,
-38,
-5,
-65,
41,
-13,
-16,
-12,
-7,
38,
38,
1,
-34,
10,
39,
-33,
16,
91,
59,
-12,
42,
-6,
18,
-22,
20,
25,
26,
-30,
11,
-54,
0,
-11,
8,
-15,
18,
44,
23,
37,
6,
11,
-16,
35,
9,
-7,
-16,
-22,
-28,
20,
18,
12,
1,
-22,
-29,
10,
-9,
-53,
-4,
72,
20,
11,
36,
31,
2,
-32,
36,
-15,
21,
-5,
-25,
33,
-12,
25,
11,
7,
-40,
-23,
12,
31,
4,
11,
12,
11,
-28,
-6,
-33,
47,
27,
9,
-43,
-29,
-30,
-10,
-42,
-23,
0,
28,
-5,
-18,
0,
-1,
19,
20,
-8,
-28,
44,
0,
-12,
-11,
-33,
-16,
0,
-64,
15,
33,
-42,
0,
11,
14,
25,
7,
-29,
-43,
-15,
19,
-14,
52,
-55,
43,
-20,
-6,
-4,
24,
-44,
-24,
30,
-37,
0,
-38,
-7,
-21,
63,
19,
37,
-54,
-21,
-23,
50,
61,
53,
16,
-25,
-40,
19,
30,
-8,
15,
65,
0,
-28,
-29,
-15,
72,
-20,
30,
-39,
-2,
6,
-11,
20,
-24,
16,
8,
5,
38,
15,
27,
-10,
42,
42,
47,
0,
-26,
10,
28,
8,
-51,
-42,
33,
3,
60,
-75,
18,
-22,
-1,
4,
3,
-16,
-44,
-18,
-22,
-9,
48,
43,
8,
15,
8,
-36,
27,
4,
11,
-17,
-82,
27,
44,
5,
13,
-51,
-32,
-29,
6,
51,
8,
28,
-13,
-13,
14,
-59,
27,
-28,
-15,
-22,
13,
0,
0,
42,
21,
-16,
36,
35,
55,
16,
54,
-27,
1,
-6,
44,
22,
-2,
30,
-40,
-14,
-1,
2,
7,
44,
20,
12,
29,
53,
-14,
-13,
-57,
15,
-14,
-21,
-12,
4,
7,
21,
-2,
3,
-65,
-27,
-8,
-41,
-50,
21,
8,
-37,
9,
-2,
-4,
-7,
36,
32,
28,
-13,
28,
0,
-1,
-19,
24,
4,
2,
50,
6,
-3,
0,
-26,
-30,
16,
21,
-37,
-1,
7,
15,
-32,
8,
7,
-4,
-2,
-3,
33,
28,
16,
-43,
9,
-25,
-3,
-10,
60,
-19,
12,
-15,
-27,
-24,
33,
49,
0,
22,
37,
-24,
-1,
-42,
24,
17,
-33,
-21,
16,
1,
6,
57,
9,
14,
-11,
28,
4,
-7,
14,
6,
19,
-2,
20,
-27,
-28,
-10,
-5,
-46,
3,
11,
2,
12,
-8,
-42,
48,
18,
-6,
-55,
15,
80,
-59,
-55,
-23,
-35,
16,
5,
34,
-22,
-11,
-24,
28,
0,
-40,
10,
23,
32,
70,
7,
16,
-24,
-34,
-5,
9,
-40,
25,
15,
3,
2,
-13,
-3,
-19,
-11,
-18,
40,
4,
-30,
1,
-7,
42,
-2,
37,
9,
11,
-26,
41,
25,
-20,
-11,
45,
-11,
45,
-50,
-5,
9,
21,
9,
18,
6,
-32,
-33,
19,
18,
30,
12,
-14,
5,
-27,
-37,
16,
-30,
-28,
-8,
-66,
6,
-20,
0,
-28,
27,
0,
-32,
-7,
7,
-30,
-13,
-13,
-8,
-23,
-44,
39,
-21,
-8,
22,
-22,
2,
-1,
-4,
29,
-7,
11,
-19,
-16,
-25,
-33,
20,
-42,
-15,
-1,
-30,
-8,
-24,
6,
11,
7,
-55,
8,
30,
-34,
44,
15,
-2,
-12,
23,
-5,
9,
-6,
-7,
35,
10,
4,
35,
-8,
30,
-21,
42,
-34,
11,
-4,
16,
25,
2,
20,
22,
18,
-33,
21,
7,
-4,
15,
66,
-6,
40,
-1,
20,
-18,
47,
8,
22,
-52,
19
] |
Clark, J.
Plaintiff, a Delaware corporation, commenced suit by summons against Universal Coal Company, Universal Coal Sales Company, and the Price Hill Colliery Company, all West Virginia corporations, and it caused many writs of garnishment to be issued and served. A number of disclosures were filed showing indebtedness to the Price Hill Colliery Company. The garnishment is under 3 Comp. Laws 1915, § 13150, providing for garnishment of nonresident and foreign corporations. Procedural requirements of the statute of garnishment were satisfied.
The declaration contained five counts. The two defendants last named moved to dismiss the declaration chiefly as not stating a cause of action, and they also moved to quash the garnishment. Plaintiff asked leave to amend the declaration, which was granted. The amendment added a sixth count. The declaration as amended was dismissed, and the garnishment quashed. Plaintiff brings error.
The facts as stated in the declaration, which must be here taken as true, are, briefly: Plaintiff and defendant Universal Coal Company entered into a contract in writing by which plaintiff agreed to buy and to pay for 100 cars of coal at $1.40 per ton, and defendant promised and agreed to deliver them. After four cars had been delivered said defendant breached the contract, failing and refusing to perform further, to plaintiff’s damage. On this cause of action plaintiff commenced suit against defendant Universal Coal Company in Ohio, and, in the court of common pleas of Hamilton county, Ohio, had judgment in its favor and against said defendant in the sum of $10,920' with interest from April 2, 1928, and with costs.
After the entry of judgment plaintiff learned that Universal Coal Company, in this transaction and in its business and affairs, was merely the agent, adjunct, and instrumentality of defendant the Price Hill Colliery Company, and wholly under its domination and control, a mere device of trade that the latter compaliy might evade liability.
In each of the first five counts of the declaration the >Ohio judgment is set forth and pleaded, averred to be a valid final judgment upon which there is due plaintiff the whole amount thereof, and it is averred that the defendants are “all corporations duly organized and existing under the laws of the State of West Virginia.” The judgment is declared on with addition of the facts, above stated, of domination and control of the judgment debtor by the Price Hill Colliery Company, and judgment is prayed against the Price Hill Colliery Company. The original cause of action is not pleaded. It is treated as merged in the judgment. The theory of these counts, in so far as they are briefed by counsel, is that the Universal Coal Company, with whom plaintiff dealt, was, in legal effect, a mere agent, tool, or instrumentality of the undisclosed principal, the Price Hill Colliery Company, and that as plaintiff had no knowledge of the undisclosed principal and the fact of the relation at the time it took judgment against the agent, it may still recover against the principal. The theory is good, but recovery against the principal must be on the original cause of action.
As to af third person with whom an agent has contracted, in a case such as this, for an undisclosed principal, the principal arid agent are not jointly liable, nor are they, in a strict sense, severally liable. The liability is an alternative one.
It is said in 2 Mechem on Agency (2d Ed.), p. 1331:
“A contract has been made which in terms binds the agent only. Nevertheless the principal may be made liable upon it. How is he liable? Although the other party may perhaps sue both severally but simultaneously, or possibly sue both jointly, the obligation can hardly be deemed a joint one in the sense that it can ultimately be enforced .against both. Neither can it be said that both are liable severally in the sense that recovery can be had partly from each. The liability is commonly said to be an alternative one. The agent can be held because he made the contract in his own name, or the principal can be held because it is in law deemed to be his contract. Which one shall be held? The answer ordinarily given is that the other party may ‘elect’ between them.”
In Schweyer v. Jones, 152 Mich. 241, it was held, quoting syllabus:
“Where a simple contract is made by a duly authorized agent without disclosing his principal, and the other contracting party afterwards discovers that the person with whom he dealt was not the principal, he may abandon his right to look to the agent personally, and resort to the principal.”
See Timmerman v. Bultman, 243 Mich. 344; 1 Freeman on Judgments (5th Ed.), p. 1033.
As plaintiff’s right to recovery asserted here is alternative, depending upon the doctrine of election, plaintiff cannot stand on- the judgment against the agent as valid and binding and treat such judgment as a cause of action against the principal. Suing upon the judgment it cannot bring in a new and different party and take judgment against it. 34 C. J. p. 1091; 2 Freeman on Judgments (5th Ed.), p. 2252. With respect to these counts the court was right in ordering dismissal.
The sixth count of the declaration is against the Price Hill Colliery Company as, in legal effect, the undisclosed principal of its agent Universal Coal Company -with whom plaintiff dealt. It avers the original cause of action. It sets forth the contract and its breach and claims damages therefor. It recites that plaintiff learned of the undisclosed principal after the judgment had been taken against its agent, and that the judgment remains wholly unsatisfied. It avers sufficiently the relation between the- defendants just above named. The count is sufficient in its averment of facts. It is also challenged as insufficient in law.
That plaintiff took judgment against the agent before it had knowledge of the undisclosed principal and of the relation, is not an election, the judgment being wholly unsatisfied.
We quote from 21 R. C. L. p. 894:
“The generally accepted rule seems to be that when the agency has been disclosed before suit is filed a judgment obtained therein against the agent, although unsatisfied, is a bar to an action against the principal. Wlien, however, the fact that atn agency existed comes to the knowledge of the plaintiff only after he has obtained the judgment against the agent, if there has been no satisfaction therein, he may then proceed against the principal.”
See 2 C. J. p. 846; 6 L. R. A. (N. S.) 729, note; 21 L. R. A. (N. S.) 791, note; Greenburg v. Palmieri, 71 N. J. Law, 83 (58 Atl. 297); Brown v. Reiman, 62 N. Y. Supp. 663.
In determining whether in truth and fact the Universal Coal Company was the agent, tool, or instrumentality of the Price Hill Colliery Company, the court may “look through forms to substance, and ignore a mere colorable corporate entity to the end that the rights of third parties shall be protected,” quoting from Spokane Merchants Assn. v. Clere Clothing Co., 84 Wash. 616 (147 Pac. 414). See People v. Michigan Bell Tel. Co., 246 Mich. 198, and authorities there cited. The rule is applied in actions at law. See Booth v. Bunce, 33 N. Y. 139 (88 Am. Dec. 372); Portsmouth Oil Refining Co. v. Fourth National Bank, 280 Fed. 879; Platt v. Bradner Co., 131 Wash. 573 (230 Pac. 633); Phœnix Safety Investment Co. v. James, 28 Ariz. 514 (237 Pac. 958); Hunter v. Baker Motor Vehicle Co., 225 Fed. 1006.
The sixth count states a case.
The declaration as sustained is on contract within the meaning of 3 Comp. Laws 1915, § 13122, providing for garnishment in courts of record, which per mits garnishment in personal actions “arising upon contract.” The declaration is in assumpsit claiming damages for breach of contract. It is an action ex contractu, in contract, and arising upon contract. 1 C. J. p. 1013.
The statute, as here applicable, 3 Comp. Laws 1915, § 13122, further requires that it must be stated in the affidavit that the principal defendant is justly indebted to the plaintiff ‘ ‘ on such contract * * * in a given amount.” Is the garnishment sustained by a declaration in the main case claiming damages for breach of contract'? A similar question was discussed by the court in an attachment case, Roelofson v. Hatch, 3 Mich. 277, quoting:
“There may be cases of contracts not within this remedy, as for example a breach of promise to’ marry, where the damages rest so entirely in opinion, that it would be a solecism to say the amount of indebtedness could be sworn to. But, again, there are many contracts where, although the damages are not liquidated in the contract, yet by well established rules of law they are capable of being ascertained definitely upon proof of the facts, and to hold, that in all this class of cases, the plaintiff is debarred of this remedy, would be to defeat, in a great measure, the purposes sought to be secured by its enactment. The plaintiff is required to swear that the defendant is indebted to him upon contract, express or implied, and to state the amount of such indebtedness, as near as may be, over and above .all set-offs. What is an indebtedness ? It is the owing of a sum of money upon a contract or agreement and in the common understanding of mankind, it is not less an indebtedness that such sum is uncertain. The result of a contrary doctrine would be, to hold any liability which could only be the subject of a general indebitatus assumpsit, quarttum meruit, or quantum valebant count in a declaration, such an indebted ness as could not be the subject of this remedy by attachment. Without fully deciding this point, which is not necessarily raised in this case, we see no reason why a demand arising ex contractu, the amount of which is susceptible of ascertainment by some standard referable to the contract itself, sufficiently certain to enable the plaintiff, by affidavit, .to aver it ‘ as near as may be, ’ or a jury to find it, may nqt be a foundation of a proceeding by attachment. See Fischer v. Consequa, 2 Wash. C. C. (U. S.) 382; Clark’s Ex’rs v. Wilson, 3 Wash. C. C. (U. S.) 560.”
This holding was approved in Showen v. J. L. Owens Co., 158 Mich. 321 (133 Am. St. Rep. 376), also an attachment case, where it was said:
“We are unable to find that this question has since been presented to this court. We hold, however, that the views of the court stated arguendo in the Roelofson Case correctly state the law, and justify the ruling of the circuit court. The amount of the damages in this case, while unliquidated, is susceptible of ascertainment by á standard referable to the contract. The standard established by the contract was that specified machines sold for a specified price should be free from inherent and mechanical defects.”
The discussion quoted disposes of the matter of indebtedness on contract. Under the attachment statute, 3 Comp. Laws 1915, § 13029, the affidavit must specify “the amount of such indebtedness as near as may be.” In the affidavit for garnishment the indebtedness must be stated “in a given amount.” In determining the amount due on notes, accounts, and the like, frequently difficult problems in computation are involved. Often when damages for breach of contract are to be found the amount may be accurately and definitely. ascertained by a standard referable to the contract itself. In both instances the amount may be computed and stated definitely and “in a given amount.” In cases in contract for breach of contract, where the amount of damages may be computed definitely by a standard referable to the contract and stated in a given amount, garnishment is permitted under the reasoning of the court in the cases last above cited. In the case at bar the damages are stated in a given amount in dollars and cents, they are ascertainable by the “standard referable to the contract” — the price of a ton of coal.
It is urged properly that garnishment is a harsh statutory remedy which may not be enlarged by construction. Nor should it be cut down by construction. The remedy should not be denied in case within statutory requirements.
The question is answered in the affirmative.
Reversed and remanded, with leave to defendants to plead within 15 days, and with costs to plaintiff.
North, C. J., and Fead, "Wiest, McDonald, Potter, and Sharpe, JJ., concurred. Butzel, J., did not sit. | [
-37,
-30,
34,
5,
9,
59,
36,
-48,
1,
12,
-5,
0,
60,
-1,
-16,
-34,
24,
-23,
30,
37,
43,
-15,
-55,
17,
25,
10,
-11,
-4,
-9,
22,
-52,
-17,
-49,
-31,
-24,
-10,
-50,
19,
-8,
-17,
-20,
55,
26,
-8,
19,
-22,
-20,
-42,
45,
-17,
21,
4,
14,
-4,
-9,
6,
-39,
7,
-4,
-70,
-11,
-22,
69,
5,
1,
49,
21,
-9,
32,
43,
-10,
26,
14,
-26,
-6,
-32,
-35,
-33,
-28,
-4,
-23,
-38,
-15,
20,
-95,
31,
-4,
36,
21,
53,
-17,
-57,
-38,
18,
2,
6,
-28,
40,
-28,
37,
-12,
-12,
-12,
31,
-5,
18,
-3,
-60,
-7,
42,
2,
-10,
23,
-72,
-31,
-20,
-4,
-67,
2,
-7,
65,
-1,
4,
12,
-20,
-60,
-39,
-62,
-34,
1,
43,
-15,
-61,
-6,
32,
4,
8,
-23,
-34,
-9,
4,
6,
-23,
9,
-14,
61,
13,
16,
-29,
-18,
-35,
-4,
44,
12,
5,
23,
57,
2,
23,
-40,
53,
21,
16,
-31,
-70,
-20,
-43,
14,
-62,
-12,
-26,
-8,
-27,
2,
20,
17,
11,
-39,
-26,
-19,
-42,
-65,
-7,
41,
28,
-27,
-10,
21,
-18,
16,
28,
-21,
22,
44,
-21,
17,
17,
17,
-6,
12,
55,
10,
-34,
-6,
7,
16,
31,
-23,
-28,
-30,
10,
19,
-22,
-17,
-31,
25,
-9,
-29,
15,
-10,
0,
17,
-56,
17,
0,
-55,
-7,
-34,
-26,
-20,
-33,
-17,
-4,
18,
-8,
-4,
30,
-9,
67,
-2,
-32,
-17,
-44,
-39,
2,
-10,
-23,
0,
20,
49,
-3,
18,
-3,
53,
-17,
-56,
-57,
18,
-3,
-27,
17,
64,
0,
0,
7,
-29,
-35,
-20,
2,
16,
7,
-26,
36,
8,
-9,
-13,
-9,
41,
-41,
-34,
1,
-31,
-19,
-52,
6,
0,
-14,
24,
-83,
-27,
10,
15,
17,
-2,
38,
17,
5,
30,
-3,
34,
-8,
-31,
6,
-77,
16,
49,
-18,
-26,
-13,
-42,
-46,
-39,
-14,
-8,
66,
-26,
39,
43,
11,
-46,
13,
28,
4,
55,
45,
-22,
51,
-47,
28,
0,
9,
-42,
40,
-10,
31,
-40,
51,
18,
-40,
24,
47,
23,
10,
8,
-17,
46,
-20,
-7,
-3,
-7,
10,
-24,
46,
-13,
46,
-40,
-33,
20,
-39,
8,
31,
64,
-64,
2,
29,
22,
8,
28,
-16,
64,
31,
17,
-3,
-22,
13,
-6,
-29,
0,
-80,
53,
17,
-38,
-11,
-21,
38,
-4,
26,
2,
-41,
-23,
-60,
-23,
30,
49,
-24,
-38,
23,
-56,
6,
59,
16,
36,
-16,
-57,
-10,
-7,
-5,
6,
-1,
-44,
-16,
-29,
-25,
21,
-13,
-9,
34,
-10,
30,
0,
47,
0,
20,
-36,
0,
-79,
30,
-1,
-58,
50,
-20,
3,
-9,
-24,
-3,
16,
-24,
0,
30,
-15,
4,
44,
10,
21,
36,
-72,
-18,
19,
58,
-27,
19,
-23,
27,
-10,
55,
26,
-2,
-27,
26,
5,
38,
-11,
29,
17,
19,
-4,
55,
-32,
33,
24,
-27,
48,
17,
15,
-36,
-50,
33,
-15,
-10,
24,
40,
66,
-20,
-61,
-17,
-35,
27,
14,
12,
6,
-9,
-1,
18,
-57,
52,
36,
-46,
25,
-28,
-21,
-31,
-17,
-10,
-31,
31,
51,
-45,
8,
-40,
68,
0,
5,
56,
16,
-17,
76,
11,
44,
-16,
7,
45,
4,
-19,
15,
-16,
9,
2,
12,
65,
-20,
5,
-24,
32,
17,
-35,
15,
-8,
-7,
-43,
-43,
-27,
24,
5,
-13,
14,
-8,
-23,
-7,
-21,
5,
9,
-3,
37,
-9,
-7,
18,
-12,
-2,
21,
-3,
-16,
12,
-1,
-52,
8,
-12,
41,
34,
2,
35,
-24,
48,
16,
-17,
34,
15,
-42,
-33,
34,
4,
10,
-29,
5,
-53,
-32,
14,
3,
-5,
-28,
4,
-41,
-35,
11,
25,
41,
-36,
-17,
8,
1,
27,
-24,
-19,
-45,
-33,
-19,
4,
33,
-7,
-70,
-1,
-13,
7,
-40,
8,
72,
-12,
13,
-33,
44,
0,
-9,
10,
4,
-9,
27,
-1,
-11,
16,
-25,
23,
-57,
-17,
-70,
-18,
-16,
41,
-22,
29,
-43,
18,
-34,
-9,
-6,
18,
10,
-45,
11,
67,
12,
13,
-40,
36,
11,
26,
-19,
-5,
20,
5,
37,
-85,
15,
-8,
26,
27,
3,
-15,
25,
42,
49,
32,
14,
-14,
29,
-2,
3,
-20,
7,
36,
-13,
-26,
-2,
-16,
47,
2,
-15,
18,
34,
49,
-44,
-41,
-3,
-18,
-28,
2,
-35,
-4,
26,
-2,
2,
7,
-21,
19,
-29,
62,
22,
-4,
-51,
12,
58,
-16,
19,
-78,
10,
-57,
32,
25,
0,
33,
-65,
-42,
20,
-38,
84,
3,
-50,
9,
-6,
-30,
-35,
5,
28,
-5,
5,
18,
-43,
15,
10,
-48,
-53,
-1,
24,
-24,
45,
12,
28,
21,
-4,
17,
-58,
9,
-18,
32,
-18,
-32,
43,
-7,
-34,
-1,
-18,
-13,
-15,
12,
59,
-21,
-19,
68,
-34,
-46,
28,
-46,
-32,
31,
-5,
-42,
-10,
4,
76,
-3,
-11,
15,
16,
-17,
36,
17,
-55,
-54,
19,
1,
4,
45,
13,
10,
18,
-70,
-8,
54,
27,
29,
-55,
-53,
-6,
15,
-47,
43,
50,
-17,
48,
7,
-5,
17,
-31,
-13,
47,
-49,
7,
5,
-13,
43,
-50,
3,
-14,
8,
-25,
19,
9,
-22,
-59,
2,
-5,
-12,
34,
-31,
-68,
-5,
18,
-1,
80,
10,
-8,
-63,
-15,
-35,
-33,
0,
45,
29,
-16,
42,
-9,
-2,
29,
-13,
-11,
33,
7,
-16,
-2,
-44,
-30,
22,
53,
-34,
-54,
28,
30,
-30,
-36,
38,
-29,
-25,
13,
44,
-57,
3,
-41,
-28,
22,
-59,
19,
3,
-38,
-8,
37,
69,
10,
-33,
20,
-16,
21,
53,
16,
-54,
5,
59,
8,
-6,
20,
-17,
33,
-6,
-16,
6,
13,
5,
-43,
48,
49,
-23,
-39,
21,
-8,
7,
1,
14,
-24,
51,
40,
8,
44,
43,
67,
1,
10,
35,
-31,
20,
18,
39,
-4,
11,
9,
-46,
14,
14,
1,
0,
-7,
-45,
16,
-25,
25,
-34,
8,
2,
-26,
-19,
11,
-2,
-3,
5,
-44,
7,
36,
-17,
-15,
1,
-33,
22,
-18,
-52,
14,
14,
-28,
-37,
-16,
-28,
6,
-1,
-16,
-33,
-1,
15,
-28,
-27,
2,
8,
18,
11,
-4,
9,
64,
-10,
-16,
39,
-42,
-34,
-22,
-45,
18,
-6,
41,
22,
24,
16,
51,
-25,
-25,
18,
-2,
-3,
-27,
-54,
5,
-7,
40,
-27,
38,
2,
58,
46,
-29,
8,
38,
41,
-13,
22,
-47,
26,
14,
-13,
50,
27,
3,
17
] |
Sharpe, J.
Plaintiff brought four actions in justice’s court in the city of Detroit against defendant. Three of them were based on promissbry notes in the sum of $500 each, and the fourth on a check for $67.50. He had judgment in each case for the full amount claimed. Defendant took an appeal in each case to the circuit court. At the opening of the trial, there was request by counsel that the four cases be tried together. The court said: “Each case is being tried and all four are being tried simultaneously. Of course, there is no waiver of any defense that is properly interposed;-” to which both counsel assented. The notes and check were not made payable to the plaintiff. The defense insisted that he was not a holder in due course, and that defendant was entitled to a set-off as against the payee in the sum of $1,400. The trial court submitted this contention to the jury, and they found for the plaintiff. By inadvertence, they were not instructed to return a verdict in each of the cases, and that rendered was for $1,612.50, the total amount of all of the claims and interest thereon.
On defendant’s motion for judgment non obstante veredicto and for a new trial, the court’s attention was called to the form of the verdict and that a judgment had been entered thereon. He thereupon, on plaintiff’s motion, set aside the judgment entered, and four judgments were then entered for the respective amounts of plaintiff’s claims and interest thereon, aggregating, however, the amount found by the jury to be due from the defendant to the plaintiff. It is apparent that no injustice resulted from the course pursued, and reversal should not be had becáuse of it. 3 Comp. Laws 1915, § 12480; Frederick v. Mecosta Circuit Judge, 52 Mich. 529.
Plaintiff’s testimony and that of Samuel Pelavin, from whom he purchased the securities, tended to prove that he was a holder in due course. Defendant’s claim in that respect was properly submitted to the jury. We find no error in the admission or rejection of testimony relating thereto.
It is urged that as the plaintiff might have brought an action in the circuit court to recover on the notes and check, they having all been due at the time the actions were begun, he thereby split his cause of action, and “Therefore the justice had no jurisdiction to try these causes, nor the circuit court on appeal, and adjudicate them.”
The rule is well established that, in the absence of an agreement to the contrary, a plaintiff cannot divide a claim against another and make it the sub ject of several actions. Should he do so, the judgment first recovered is a bar to a second or subsequent action for the residue of the claim. This court has so held as to claims arising out of running accounts, upon the ground that it is implied from the nature of the dealings that all the items are part of one continuing transaction, and will be regarded as representing a single demand. Kruce v. Biscuit Co., 198 Mich. 736, and cases cited. But each of these notes and. the check constituted a single demand. They might have been transferred to different persons and an action brought by the several holders for recovery. While plaintiff might have joined these demands in one action, he was under no legal obligation to do so. Nonjoinder is no defense. While the notes and check may have grown out of the same transaction, they do not constitute an entire demand. A different defense might have been made in each action. In 1 C. J. p. 1115, the rule is thus stated:
“A single promissory note gives rise to a single cause of action which cannot be split; but different notes, although between the same parties, give rise to different causes of action upon which separate actions may be maintained. ’ ’
Among the cases cited in the footnote is Nathans v. Hope, 77 N. Y. 420. We quote from the syllabus:
“The holder of several past due promissory notes, against the same parties, may bring separate actions upon each; and a recovery in one, and satisfaction of the judgment, is not a bar to the other actions.
“The'fact that the notes were given upon settlement of one and the same demand does not make each a part of the original demand, so as to compel the bringing of a single action upon all of the notes.”
In onr opinion, the several actions were properly-brought, and the defense interposed without merit.
The other errors assigned have been consicjered. They present no reversible error.
The several judgments are affirmed.
North, C. J., and Fead, Wiest, Clark, McDonald, and Potter, JJ., concurred. The late Justice Fellows took no part in this decision. | [
-25,
19,
25,
-8,
-56,
11,
30,
-26,
0,
56,
8,
15,
5,
29,
0,
-4,
-15,
-32,
-6,
-21,
-61,
-53,
-7,
-7,
0,
38,
29,
27,
43,
-35,
-14,
-23,
-31,
43,
-79,
-7,
4,
33,
-13,
-17,
4,
-3,
31,
24,
-46,
-23,
16,
-28,
46,
-41,
31,
19,
8,
-50,
-36,
-18,
13,
27,
7,
-14,
-12,
-8,
27,
11,
-9,
-11,
-24,
-38,
-1,
-18,
-72,
-36,
24,
0,
-19,
-11,
18,
-17,
4,
-54,
20,
0,
-31,
27,
-62,
25,
6,
-38,
-30,
-22,
-23,
43,
-27,
-19,
23,
39,
18,
29,
4,
37,
13,
6,
-4,
-15,
-15,
-13,
-25,
-48,
-35,
13,
-3,
46,
77,
35,
-26,
-30,
-47,
-24,
19,
2,
9,
10,
18,
15,
12,
47,
-54,
-26,
-6,
43,
19,
-6,
-9,
39,
-10,
-36,
-21,
0,
-15,
2,
41,
2,
6,
1,
65,
26,
13,
8,
28,
4,
-36,
-21,
-20,
42,
3,
-38,
-19,
-28,
0,
-16,
72,
-4,
35,
-19,
0,
13,
7,
14,
25,
-12,
20,
23,
-12,
-23,
19,
10,
-13,
-10,
-33,
-13,
30,
50,
14,
22,
-6,
-7,
9,
-12,
-23,
-15,
17,
-36,
-29,
30,
5,
6,
12,
-22,
24,
-13,
22,
-36,
5,
-22,
-32,
-10,
22,
-5,
-1,
29,
-40,
-6,
5,
-38,
-15,
33,
22,
-53,
32,
-26,
-18,
-5,
-21,
4,
-20,
-7,
-3,
20,
2,
-1,
-6,
-3,
-3,
47,
9,
-19,
-3,
5,
24,
-1,
-37,
-27,
3,
-2,
-17,
14,
-18,
-1,
-72,
27,
-17,
26,
-56,
-25,
-1,
-27,
14,
-31,
20,
19,
-13,
61,
-46,
5,
0,
32,
34,
0,
10,
-26,
-13,
-37,
-12,
36,
-3,
-37,
0,
27,
-7,
14,
21,
-24,
-44,
15,
3,
4,
-18,
4,
24,
29,
-21,
11,
18,
0,
65,
39,
-9,
-12,
14,
-4,
-17,
9,
20,
30,
17,
0,
-9,
-25,
-82,
-26,
13,
17,
-6,
17,
33,
-46,
2,
-11,
-6,
-14,
22,
-3,
-20,
-14,
25,
39,
48,
-36,
24,
-19,
-1,
18,
31,
6,
-67,
-6,
0,
19,
26,
-8,
8,
0,
-8,
-49,
47,
-8,
3,
-38,
-5,
11,
-30,
-14,
-15,
15,
-20,
-19,
48,
-18,
-12,
32,
21,
-6,
24,
5,
-13,
11,
-8,
10,
-38,
68,
17,
8,
-23,
-36,
-44,
15,
-1,
-17,
-38,
41,
-58,
9,
37,
0,
46,
-2,
4,
-21,
-8,
8,
-35,
43,
16,
0,
0,
5,
-22,
-30,
-11,
-22,
26,
-4,
47,
38,
-50,
-32,
1,
16,
10,
37,
10,
-11,
5,
8,
-27,
-24,
-3,
17,
-17,
-2,
53,
-20,
6,
-49,
19,
-8,
29,
5,
-19,
-19,
-10,
46,
35,
-106,
8,
35,
-58,
7,
-51,
-16,
11,
23,
8,
25,
36,
-54,
1,
-25,
22,
41,
18,
-12,
9,
11,
-35,
-24,
20,
-38,
26,
-9,
5,
-24,
-47,
5,
-7,
-12,
0,
6,
24,
11,
-18,
22,
-61,
-30,
6,
22,
-12,
32,
8,
11,
-31,
12,
1,
-24,
-29,
-15,
-41,
-60,
-22,
-9,
18,
17,
14,
12,
18,
25,
-36,
27,
-29,
15,
-17,
31,
32,
-28,
-10,
30,
-7,
-62,
-1,
11,
-1,
38,
-8,
31,
23,
30,
-43,
2,
-1,
-6,
-3,
19,
-38,
21,
-21,
-21,
-20,
13,
-19,
-2,
1,
17,
-35,
-20,
0,
-2,
24,
-34,
-14,
16,
-64,
12,
11,
10,
-16,
-4,
-1,
-11,
33,
28,
54,
-21,
57,
36,
-24,
14,
16,
-32,
50,
-66,
1,
-20,
0,
11,
36,
7,
-5,
-18,
0,
-21,
-12,
8,
37,
32,
-19,
-10,
-9,
30,
-6,
-3,
-11,
21,
-40,
-71,
-13,
4,
25,
33,
18,
23,
49,
-22,
0,
28,
-8,
-30,
5,
8,
19,
-2,
17,
-18,
-49,
-33,
-14,
-21,
-60,
33,
18,
-35,
42,
19,
0,
-20,
41,
-28,
-14,
20,
1,
-13,
40,
1,
-12,
-9,
47,
-3,
11,
2,
-43,
-13,
10,
-45,
3,
45,
-44,
2,
23,
10,
-22,
8,
-62,
30,
31,
0,
-2,
-1,
-98,
3,
-11,
-18,
5,
35,
37,
-59,
19,
-32,
7,
17,
-1,
-46,
23,
23,
-49,
30,
7,
1,
57,
-30,
44,
-24,
19,
-5,
57,
9,
-3,
-31,
-30,
2,
-3,
28,
-22,
-37,
9,
17,
-1,
-22,
-3,
-7,
32,
20,
7,
10,
-49,
-42,
-1,
12,
62,
33,
6,
-28,
42,
-27,
16,
-22,
-3,
-35,
-48,
32,
36,
-20,
-22,
-31,
-28,
-17,
-6,
-5,
-30,
24,
5,
18,
38,
-52,
87,
-31,
-2,
6,
15,
-8,
3,
-6,
43,
23,
1,
20,
26,
14,
0,
-50,
-44,
-2,
32,
44,
16,
-21,
-44,
-37,
34,
14,
-25,
27,
36,
34,
47,
33,
-4,
23,
2,
-1,
0,
-30,
-51,
-7,
-33,
-36,
-27,
7,
0,
-30,
17,
20,
-23,
-19,
-23,
-6,
5,
17,
-3,
-61,
1,
-21,
24,
2,
-5,
-17,
25,
-25,
-3,
6,
0,
58,
32,
-38,
-37,
-5,
15,
-13,
7,
-18,
-7,
-11,
1,
-8,
48,
6,
21,
30,
21,
11,
46,
21,
-8,
18,
-25,
-5,
4,
24,
-34,
-1,
-7,
-23,
-4,
35,
6,
18,
-37,
86,
-17,
3,
-48,
51,
36,
-53,
2,
70,
4,
6,
34,
-41,
-60,
-24,
1,
-42,
-37,
32,
21,
36,
-14,
6,
-12,
-15,
-11,
37,
-5,
-45,
-8,
-9,
20,
-3,
11,
19,
25,
15,
-16,
15,
24,
24,
-36,
-14,
10,
26,
13,
72,
-50,
1,
-34,
64,
42,
27,
-7,
-17,
-31,
-7,
-32,
13,
-43,
-6,
40,
-81,
-56,
15,
18,
1,
-20,
-32,
35,
-26,
-75,
-29,
3,
-53,
46,
-38,
5,
-4,
26,
7,
-14,
29,
-15,
36,
-6,
-39,
-19,
-7,
-28,
26,
-4,
-26,
33,
2,
-28,
12,
-1,
-1,
-1,
-12,
17,
34,
22,
17,
0,
15,
-36,
-33,
-9,
1,
23,
-75,
12,
32,
24,
4,
-4,
-6,
-16,
1,
-38,
-3,
-14,
38,
-27,
-19,
-24,
52,
-8,
-32,
-7,
-43,
42,
2,
10,
38,
23,
-7,
-16,
9,
9,
-18,
-8,
-3,
0,
-20,
13,
-14,
1,
-9,
47,
-40,
-10,
-30,
-9,
-7,
1,
31,
15,
-20,
4,
24,
-5,
17,
9,
42,
-17,
-3,
-9,
16,
14,
9,
-25,
-11,
18,
62,
19,
3,
24,
7,
28,
12,
-48,
7,
-6,
50,
3,
75,
-16,
13,
-6,
-8,
-37,
-27,
30,
51,
0,
41
] |
Potter, J.
June 10, 1914, plaintiff, then being in partnership with his brother, Louis Gr. Hill, sold on written contract to the latter for $2,850, certain property in the village of Morenci; $1,000 was paid down and $1,850. was to be paid on or before five years from date with interest at 5 per cent. Plaintiff claims that at the time he executed the contract he executed a deed of the real estate covered there by, and deposited tbe deed, together with the contract, with defendant, with instructions to it to collect the amount due upon the contract, and, upon its payment, to deliver the deed executed by himself and wife to his brother, Louis G. Hill. He claims the bank failed and neglected its duty, delivered the deed to Louis G. Hill without the collection of the amount due on the contract, accepted a real estate mortgage upon the premises for $4,800, and in 1927, after the real estate was sold and the bank paid the amount of its mortgage, the bank, through one of its officers, tendered plaintiff $1,850 without interest, whereas plaintiff claims there was due him $3,414.44. To recover this sum suit was brought. Defendant pleaded the general issue and gave notice that plaintiff’s claim was barred by the statute of limitations. The claim on the part of defendant is that at' the time the contract was entered into between plaintiff and his brother, Clarence Wilson was connected with the defendant bank as cashier, and was independently engaged in the real estate, insurance, and loan business; did conveyancing and acted as a notary public; the transaction between the plaintiff and his brother was one consummated through Mr. Wilson; the contract and deed were turned over to Mr. Wilson, and the bank in no way had anything to do with it; the papers were not delivered to the bank, but to Mr. Wilson; the deed was not delivered by the bank to Louis G. Hill, plaintiff’s brother, and the only money that ever came into the hands of the bank, came to it by reason of the sale of the premises, the payment of its real estate mortgage, and the sum of $1,850 turned over to it for plaintiff in payment for his interest in the property; that having tendered the sum of $1,850 to the plaintiff, which he refused to accept, defendant is not liable to plain tiff; and, upon plaintiff’s theory, his claim is barred by the statute of limitations, and the court properly directed the verdict of no cause of action. Plaintiff brings error based upon the court’s refusal to give the plaintiff’s several requests to charge and not submitting the case to a jury. The question in the case is whether there was sufficient evidence to carry the case to the jury.
There is no competent proof Mr. Wilson, in the preparation of the contract, accepting the deed of plaintiff and his wife of the premises in escrow, delivering the deed to Louis GL Hill, was acting for defendant ; nor that defendant accepted a mortgage on the premises with knowledge of plaintiff’s contract rights, or received any money belonging to plaintiff in any other manner than shown by defendant; nor that defendant acted as custodian of the deed of plaintiff and wife, which it held in trust, or that it violated any trust relation with plaintiff. A careful reading of the record satisfies us the trial court arrived at a correct conclusion, and judgment is affirmed, with costs.
North, C. J., and Fead, Btjtzel, Wiest, Clark, McDonald, and Sharpe,-JJ., concurred. | [
28,
20,
15,
15,
37,
23,
7,
7,
53,
-3,
12,
6,
30,
10,
-46,
6,
39,
0,
40,
-19,
37,
-32,
-27,
-16,
-17,
41,
-16,
-24,
-13,
57,
6,
-28,
-35,
-26,
-61,
54,
0,
17,
11,
-12,
-14,
-21,
-14,
-6,
22,
0,
11,
-49,
36,
23,
36,
-32,
63,
-20,
1,
-9,
25,
-18,
52,
-36,
8,
-49,
37,
-14,
0,
-18,
9,
6,
20,
12,
-34,
15,
28,
-21,
21,
-17,
-32,
8,
-42,
-60,
26,
-67,
35,
-49,
-89,
45,
-26,
24,
2,
45,
-9,
1,
16,
53,
-21,
-11,
-40,
27,
-12,
59,
-18,
-58,
18,
63,
-34,
19,
-5,
-36,
6,
48,
-15,
16,
31,
2,
-36,
-23,
-14,
0,
14,
-16,
21,
-4,
31,
-49,
7,
19,
-79,
-12,
0,
-27,
-14,
10,
-73,
29,
-55,
15,
7,
-16,
17,
-26,
10,
-16,
-61,
-17,
-24,
37,
-34,
22,
13,
14,
-68,
22,
45,
36,
-1,
10,
-10,
-42,
15,
-40,
-1,
-53,
5,
-25,
-15,
14,
-28,
-14,
-38,
30,
0,
43,
0,
-44,
17,
21,
19,
-66,
-1,
35,
-20,
23,
-14,
-22,
23,
-72,
6,
12,
-9,
37,
7,
-20,
-28,
31,
-36,
25,
-4,
-42,
-27,
-14,
-17,
-63,
-1,
-27,
-1,
-23,
62,
21,
-4,
48,
-2,
8,
-22,
-13,
-27,
40,
3,
-4,
-10,
27,
19,
31,
-68,
17,
-56,
-20,
33,
-36,
-2,
0,
-33,
-18,
-59,
20,
16,
19,
37,
0,
14,
38,
-4,
11,
-8,
-10,
-36,
23,
26,
13,
-31,
5,
-20,
-20,
-30,
49,
8,
25,
-7,
-17,
8,
-7,
9,
33,
-35,
13,
14,
-74,
-12,
-3,
-22,
79,
-17,
-38,
52,
11,
-27,
-29,
-6,
-5,
-16,
-31,
30,
-32,
-4,
7,
47,
43,
15,
50,
-46,
-1,
27,
-22,
3,
-23,
27,
6,
7,
-23,
0,
-20,
-33,
-43,
1,
-43,
19,
11,
4,
-26,
-38,
0,
1,
30,
31,
18,
46,
11,
-66,
22,
-1,
-13,
52,
38,
27,
53,
-9,
-9,
18,
-21,
10,
43,
6,
27,
-23,
-17,
-43,
-18,
38,
2,
-37,
-19,
-34,
74,
27,
14,
37,
19,
-33,
13,
-29,
72,
-52,
-60,
3,
14,
-5,
-5,
5,
17,
-35,
87,
54,
39,
-21,
-28,
1,
0,
10,
3,
71,
27,
8,
36,
-43,
-16,
-8,
20,
-39,
-8,
-18,
28,
4,
11,
1,
-12,
30,
15,
-18,
19,
-16,
9,
-39,
18,
17,
42,
23,
-38,
-22,
16,
-32,
-42,
45,
15,
-27,
-27,
-25,
35,
-20,
-42,
13,
2,
34,
-53,
-38,
15,
-11,
-27,
32,
-22,
7,
15,
2,
-10,
-9,
-14,
45,
-45,
13,
46,
-4,
-6,
-30,
32,
4,
-63,
51,
-16,
-38,
-12,
-35,
42,
31,
10,
3,
22,
31,
-2,
-42,
-35,
46,
32,
-17,
25,
15,
27,
28,
9,
3,
-18,
10,
-74,
31,
0,
10,
10,
-9,
-7,
3,
-12,
0,
8,
4,
1,
22,
-28,
-24,
-2,
-6,
-42,
13,
17,
29,
17,
0,
27,
-14,
-57,
-26,
-8,
-19,
-33,
6,
-43,
37,
-8,
-7,
37,
-16,
25,
-29,
-3,
-26,
46,
2,
16,
-22,
-8,
-8,
-3,
3,
48,
-68,
-5,
12,
29,
-7,
48,
-4,
37,
21,
44,
0,
25,
-33,
37,
0,
17,
31,
68,
33,
-26,
16,
13,
-10,
17,
-63,
-26,
-25,
36,
31,
-8,
-55,
60,
-1,
52,
-59,
17,
-10,
23,
31,
-1,
0,
-17,
30,
-28,
-30,
-2,
47,
1,
10,
12,
-23,
-6,
14,
-50,
52,
-58,
13,
-27,
-12,
-19,
-74,
-40,
24,
-34,
3,
-36,
-46,
0,
-20,
-21,
-43,
-52,
10,
-19,
-12,
90,
42,
4,
-27,
49,
-13,
6,
-15,
15,
37,
-32,
-13,
-1,
7,
26,
-29,
-23,
-12,
-36,
22,
-42,
-41,
16,
12,
1,
-19,
6,
-58,
11,
37,
-20,
-20,
0,
50,
7,
33,
27,
-12,
16,
12,
20,
-27,
2,
-22,
43,
-41,
19,
-18,
-23,
-14,
-8,
16,
29,
-28,
-45,
27,
14,
27,
-2,
-4,
9,
4,
39,
20,
-31,
-39,
34,
-2,
4,
-13,
-49,
42,
-25,
53,
-7,
86,
-26,
-64,
-24,
-12,
-54,
43,
0,
22,
-6,
18,
-60,
30,
-33,
6,
30,
-7,
75,
23,
42,
24,
-25,
0,
14,
0,
3,
76,
-6,
-24,
-3,
-41,
-2,
-47,
34,
-20,
48,
12,
10,
0,
3,
13,
-1,
14,
24,
-23,
20,
-17,
13,
-26,
-43,
36,
-8,
-18,
-34,
-26,
65,
-13,
-26,
7,
21,
-10,
-62,
55,
-26,
-33,
34,
11,
0,
-19,
2,
21,
-10,
-51,
25,
-1,
2,
-5,
-1,
-50,
-24,
-70,
1,
12,
37,
-6,
-16,
-2,
-8,
-16,
-11,
-4,
51,
-7,
21,
23,
-19,
-21,
-11,
-17,
13,
-41,
40,
14,
-32,
-4,
38,
16,
-61,
-12,
-26,
-5,
7,
-21,
-3,
-19,
-4,
30,
-2,
53,
-18,
-3,
-27,
2,
-34,
-4,
-45,
70,
29,
44,
74,
-1,
-18,
-2,
-6,
-26,
-8,
41,
84,
41,
-23,
8,
24,
-28,
26,
33,
19,
15,
35,
25,
0,
-13,
-26,
30,
-43,
-34,
5,
-17,
24,
21,
19,
-50,
15,
-14,
-27,
4,
-9,
-42,
4,
-75,
-5,
24,
-26,
-37,
-8,
41,
25,
66,
0,
-3,
-9,
36,
-59,
-6,
28,
57,
-18,
-45,
-3,
9,
-31,
-7,
-25,
20,
5,
-42,
-21,
-19,
-21,
23,
-6,
23,
-44,
-31,
-6,
53,
-18,
11,
40,
31,
12,
-4,
20,
-21,
17,
27,
-19,
14,
35,
48,
-15,
-28,
-10,
1,
16,
-62,
-15,
-10,
24,
-34,
43,
-33,
-17,
-18,
-9,
3,
-37,
-32,
-27,
38,
-4,
24,
-29,
3,
5,
-60,
-4,
-25,
29,
16,
2,
28,
-16,
-12,
-51,
-32,
14,
45,
-31,
42,
30,
-22,
0,
-7,
16,
-28,
-36,
1,
17,
4,
8,
6,
45,
-21,
5,
44,
-6,
63,
-38,
-34,
-7,
15,
-37,
8,
12,
-44,
-19,
24,
-37,
24,
14,
-50,
7,
10,
14,
2,
-30,
-49,
-10,
-10,
-15,
-30,
-9,
-59,
-47,
22,
-14,
44,
2,
-2,
-54,
18,
-8,
-30,
-19,
-31,
-13,
34,
-12,
52,
-18,
-8,
-33,
-10,
17,
0,
30,
52,
22,
-7,
-3,
6,
10,
-21,
44,
27,
-43,
3,
20,
-29,
9,
-5,
-23,
25,
2,
-13,
-45,
37,
13,
52,
-29,
-20,
20,
43,
21,
13,
15,
19,
12,
7,
-24,
8,
23,
-27,
77
] |
North, C. J.
Boston-Edison Protective Association, plaintiff herein, is a Michigan corporation. Campbell H. Leith, also a plaintiff, is its president. The members of the association consist of residents of the blocks on Atkinson, Edison, and. Longfellow avenues and Chicago and Boston boulevards, lying between Hamilton boulevard and Linwood avenue, Detroit, Michigan. One of the purposes of the association is to enforce the building restrictions in the aforesaid area.
Defendant is the owner of and resides in a beautiful, large two-story brick residence, with spacious grounds around it, at the northwest corner of Edison avenue and Hamilton boulevard, the property being known as lot 170 of Boston boulevard subdivision. The deed of each lot owner in said subdivision contains restrictive covenants as follows:
“It is mutually understood and agreed by and between the parties hereto for themselves and their respective heirs, legal representatives and assigns, that this conveyance is expressly subject to the following agreements, covenants and restrictions, which agreements, covenants and restrictions run with the land and relate to the entire Boston boulevard subdivision and. provide a uniform plan for the improvement of said entire subdivision. No structure shall be built upon any lot in said subdivision except single dwelling houses, having at least two (2) full stories with at least 18-foot studding or posts, and all ceilings of full height and their appurtenant outbuildings. * * *
“All houses shall have full basements of brick, stone or cement foundations, and there shall be no flat roofs.”
The restrictions vary but slightly as to lot lines and other minor details. ' They are uniform as to restricting the property to single dwelling houses and in providing for substantial residences on the lots. The entire neighborhood has been built up as a fine residential district. The circuit judge stated in Ms opinion it “is perhaps the choicest private residential district within the territorial limits of the city of Detroit. ”
Defendant is a practicing physician and has used his home,- without objection, as a doctor’s office. There is an entrance to it from Hamilton boulevard, on which it also fronts. His testimony shows that at one time he resided and conducted his office at the house on the corner of Atkinson avenue and Hamilton boulevard, in the same subdivision, and that there was no objection raised. This property is now being used as a residence and doctor’s office by another physician.
Hamilton boulevard is a busy thoroughfare, on which there are street car tracks. It runs along the east side of the said subdivision. Both north and south of the subdivision there are stores on Hamilton boulevard. There is a large hospital fronting on Hamilton boulevard a short distance below the subdivision. However, for almost the solid five blocks of the subdivision from Atkinson avenue to the middle of the block that the north side of Boston boulevard borders on, there are no stores or any other business places.
All of the owners of the lots in the said subdivision have rigidly adhered to the restrictions and to the general plan of keeping the entire subdivision as a beautiful residential section. There have been no encroachments of business in the subdivision except that another doctor and plaintiff practice medicine in their respective homes.
In order to take care of Ms increasing business, defendant has begun the erection of a one-story office building in the rear of his residence. The building was to contain an X-ray room, medical library, waiting room, and doctor’s office. Said structure in no respect conforms with the building restrictions. Its purpose is to provide defendant with business offices, so that the property may be used for business purposes. This is in violation of both the letter and spirit of the restrictions of the subdivision.
Plaintiffs brought this action to restrain the erection of the said building and the use of it for business purposes. The lower court decreed that the property was restricted, and permanently enjoined defendant from proceeding with the erection of a building in violation of the restrictions and from using said premises for a doctor’s office in a different manner than it had been previously used.
Defendant has appealed, and claims that the restrictions were waived through plaintiffs’ acquiescence in permitting the use of his home as a doctor’s office, and also the like use of the property at the corner of Atkinson avenue and Hamilton boulevard. He also claims that the character of Hamilton boulevard has so changed that it has become a business street, and that, therefore, the restrictions on the Hamilton boulevard frontage are no longer of any force and effect.
While it is true that there has been no objection made to the defendant’s practicing medicine at his home and using it as a doctor’s office where patients consulted him, nevertheless, the defendant should not be able to violate further rights of plaintiffs on account of his theretofore slight breach of the restrictive covenants in his deed. Plaintiffs are not estopped from preventing a most flagrant violation of the restrictions on account of their theretofore failure to stop a slight deviation from the strict letter of such restrictions. While it is true that by their acquiescence they may not be able to enjoin defendant from continuing to use his present home to the extent that it has been heretofore used as a doctor’s office, they are still in a position to stop the more serious violation of the restrictions that would result from the erection of a new or adjoining building; one story in height, without basement, etc., which does not conform with the restrictions of the subdivision. A covenant restricting the erection of any building, except for dwelling house purposes, applies to the use as well as to the character of the building. Frink v. Hughes, 133 Mich. 63; Harris v. Roraback, 137 Mich. 292 (109 Am. St. Rep. 681); Bagnall v. Young, 151 Mich. 69; Schadt v. Brill, 173 Mich. 647 (45 L. R. A. [N. S.] 726); Kingston v. Busch, 176 Mich. 566; Killian v. Goodman, 229 Mich. 393; Holderness v. Finance Corp., 241 Mich. 604; Tuttle v. Ohio Boulevard Land Co., 245 Mich. 188; Seeley v. Phi Sigma Delta House Corp., 245 Mich. 252, and many other cases.
. In the case of Oakman v. Marino, 241 Mich. 591, defendant claimed that the erection of a small frame building on one side of the lot and used as a store was sufficient to break the restrictions so that he could build a two-story building on another portion of the lot. It was held that “this phase of the case is not such as "could be held to establish a waiver by or an estoppel against the plaintiff.” In the case of Hartwig v. Grace Hospital, 198 Mich. 725, a residence had been remodeled and used as a hospital. The building was torn down and it was sought to erect a home for nurses on the property. The court held that inasmuch as plaintiff had taken immediate action to enjoin the erection of a home for nurses, he was entitled to an injunction, notwithstanding the fact that he had failed to seek an injunction against the use of the residence as a hospital. These cases are analogous to the one at bar on the grounds of waiver and estoppel.
The other claim made by defendant is that the character of Hamilton boulevard has so changed that it has become a business thoroughfare, and that, therefore, the restrictions limiting the use of lots on Hamilton boulevard to single dwelling houses have been automatically removed. There is no merit whatsoever to this contention. Defendant relies on two cases to support his claim. He refers to the case of Windemere, etc., Ass’n v. American State Bank, 205 Mich. 539. In this case, it was held that the restriction forbidding the use of the property for business purposes was no longer of any force. It was shown that the three lots in the subdivision immediately north of the lot in question had been freed from the restriction and that it was inequitable to hold that defendant’s lot was bound by a restriction when the adjoining property had been so released. In that case also the plaintiff association conceded that there had been such a change in conditions as to render the enforcement of the restrictions inequitable, and the association had been active in lifting the restrictions on other properties. Plaintiff in that case opposed the nearness of the .building lines to the street on Windemere avenue. We have no such situation in the case under consideration. The other case that defendant relies upon is that of Putnam v. Ernst, 232 Mich. 682. No such principle as he contends for was presented before this court in that case. The property there under discussion was at the northwest corner of Woodward and Hazelwood avenues, Detroit, Michigan. The only restriction considered was in regard to the building of stores and the lot line on Hazelwood avenue. There was no appeal from the decision of - the lower court, which held that the Woodward avenue frontage could be used for business purposes. The opinion of this court shows that on the Woodward avenue frontage of the same subdivision a bank building had been erected across the road from the property in question, and that also a hotel and store building had been built adjoining the bank building. The length of the Woodward avenue frontage of the subdivision and .the character of the neighborhood are not shown. The plaintiffs in that case were evidently satisfied with the decision of the lower court, which held that the restriction against building stores on Woodward avenue no longer applied in that neighborhood, for they did hot'appeal. It was further held that where it appears that it would be of benefit to lot owners in a subdivision to retain its residential character and also the restriction against business purposes, violations of the restrictions will be enjoined even on a corner lot, to the extent of preserving the building lines on a residential street which runs into Woodward avenue,where the restrictions have been lifted, and defendants were also enjoined from opening stores on Hazelwood avenue. Although each case must be considered by itself, there are general rules which must govern. In a long line of decisions we have held that, notwithstanding a street has to a large extent become a business thoroughfare, nevertheless, when certain sections have been restricted in their use to residential purposes- on account of restrictive covenants contained in the deeds or the recorded plats of the subdivisions, such restrictive covenants will be upheld. Claims similar to those made by the defendant G-oodlove were made in the case of Moore v. Curry, 176 Mich. 456. The court . held that:
“No such radical change has been shown in the environments and character of the neighborhood in which the restricted district is situated as to invoke the limitation contended for and justify the court in refusing at this time the relief asked.”
This principle has been consistently followed by a long line of subsequent cases including Andre v. Donovan, 198 Mich. 256; Benzing v. Harmon, 219 Mich. 532; McQuade v. Wilcox, 215 Mich. 302 (16 A. L. R. 997); Swan v. Mitshkun, 207 Mich. 70; Sherrard v. Fine, 222 Mich. 392; Moreton v. Louis G. Palmer & Co., 230 Mich. 409. Defendant claims that' these cases indicate that residential restrictions are removed from all lots abutting on a street when a large part of the frontage of the entire street is used for business purposes. The cases do not support this contention. Such changes do not affect a rigidly restricted district. The change in the character of certain sections of property bordering on a street does not affect a large neighborhood bordering on that street, where the lot owners in such neighborhood have strictly adhered to the restrictive covenants in their deeds.
The evidence shows that the entire Boston boulevard subdivision, including five continuous blocks fronting on Hamilton boulevard has remained a strictly residential neighborhood. There has always been compliance with the restrictive covenants in the deeds. To nullify these restrictions would be to work a great injustice to the owners of these properties. However, the decree of the lower court directed the defendant to “raze and remove the structure as now erected” within 30 days. If, as was adjudged in Sanborn v. McLean, 233 Mich. 227 (60 A. L. R. 1212), the portion of the building con-structed can be altered so as to comply with the restrictions, it need not be destroyed,- but it. should be provided, as was decreed in the circuit court, that the building erected, or any part thereof, is not “to be used for the practice of medicine or surgery or osteopathy.” With this modification, the decree in the circuit court is affirmed, with costs to plaintiffs.
Fead, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. Butzel, J., did not sit. | [
-2,
31,
15,
-61,
-3,
-20,
19,
33,
3,
3,
-30,
45,
37,
-2,
11,
3,
10,
50,
-4,
5,
-10,
-46,
12,
-22,
-36,
18,
65,
-19,
4,
32,
-20,
-27,
3,
0,
-41,
64,
33,
-15,
38,
-49,
-15,
-44,
0,
-33,
3,
13,
28,
12,
0,
-54,
-26,
58,
63,
18,
-51,
-59,
-18,
58,
-13,
4,
-16,
-15,
7,
59,
23,
14,
52,
55,
88,
2,
-4,
17,
21,
-16,
83,
-11,
27,
-21,
-8,
-71,
-57,
-22,
71,
-3,
11,
-1,
-16,
-2,
-35,
-21,
8,
-18,
32,
44,
-8,
42,
7,
0,
-5,
28,
-46,
46,
-28,
-3,
-34,
9,
-22,
4,
50,
0,
-41,
-33,
-35,
7,
2,
-14,
32,
16,
39,
6,
-2,
-38,
18,
-46,
-47,
65,
12,
-45,
-47,
-20,
17,
2,
13,
-8,
-10,
17,
13,
32,
62,
69,
38,
32,
-22,
-14,
-23,
10,
-24,
30,
-39,
-60,
15,
37,
-24,
20,
-5,
-9,
-4,
15,
28,
19,
-3,
-40,
30,
17,
-37,
24,
-52,
-18,
21,
47,
-4,
2,
25,
-99,
1,
-36,
42,
42,
-64,
-23,
22,
-28,
57,
-10,
-15,
-21,
1,
2,
-12,
-76,
39,
17,
-34,
-3,
-40,
-11,
-24,
62,
-26,
-12,
17,
-19,
-46,
13,
-18,
-42,
-19,
14,
13,
13,
18,
-1,
-7,
1,
64,
-14,
33,
-14,
19,
-29,
-15,
-42,
9,
27,
-53,
-10,
-9,
-70,
35,
-49,
-12,
3,
3,
-9,
-7,
36,
-30,
37,
27,
-8,
-8,
99,
-19,
21,
-66,
3,
6,
28,
7,
32,
-15,
-6,
23,
17,
-24,
5,
-25,
2,
7,
32,
16,
27,
-35,
39,
69,
8,
48,
-33,
-22,
17,
-62,
9,
-38,
33,
-78,
-45,
-36,
-41,
18,
27,
-24,
-23,
29,
7,
-5,
75,
-11,
-14,
-61,
-28,
-19,
3,
-9,
1,
11,
-30,
28,
-14,
-71,
-22,
-6,
31,
-8,
4,
54,
-6,
-14,
20,
81,
12,
50,
0,
-24,
-10,
13,
-27,
0,
-14,
-1,
-16,
51,
17,
-30,
13,
-24,
23,
38,
8,
-21,
-6,
30,
-10,
37,
52,
-32,
41,
30,
-3,
-22,
-43,
-31,
20,
26,
18,
18,
22,
-24,
-2,
-58,
-22,
-60,
-22,
0,
-33,
-3,
43,
-1,
11,
-49,
39,
73,
61,
-25,
12,
-44,
-11,
0,
-50,
-12,
63,
5,
20,
-54,
63,
-26,
1,
-18,
-2,
-1,
64,
8,
-53,
40,
5,
15,
-21,
-21,
-39,
31,
1,
-28,
-20,
16,
43,
-7,
1,
12,
-3,
-21,
-34,
60,
36,
-23,
35,
-5,
60,
28,
0,
35,
-8,
-67,
36,
31,
-1,
-9,
8,
17,
-54,
-12,
42,
0,
51,
-14,
10,
3,
-25,
55,
25,
-15,
50,
-13,
-22,
19,
-2,
13,
-14,
-52,
-31,
-42,
-6,
-39,
-34,
3,
10,
11,
-23,
-14,
0,
6,
-4,
15,
93,
-18,
30,
-50,
-16,
7,
44,
26,
-19,
-23,
-79,
-13,
-19,
-40,
37,
-5,
17,
-18,
5,
-35,
13,
-17,
21,
-14,
-23,
-40,
25,
-62,
-12,
-38,
-27,
-9,
21,
-43,
-17,
-69,
8,
-24,
35,
48,
61,
13,
4,
34,
3,
-6,
-12,
-5,
-12,
77,
8,
-29,
-17,
12,
-34,
6,
14,
22,
0,
-18,
-51,
0,
-4,
-8,
30,
15,
-26,
17,
-15,
32,
-3,
35,
-12,
9,
-15,
41,
-2,
22,
18,
34,
-50,
-40,
4,
-13,
-17,
10,
53,
20,
-19,
33,
18,
19,
-13,
-40,
12,
-24,
-1,
8,
1,
-6,
-15,
-12,
-26,
-6,
-7,
-27,
-5,
24,
70,
-54,
-5,
111,
6,
64,
49,
21,
-34,
22,
21,
-66,
5,
-14,
-21,
-38,
2,
-8,
9,
-44,
14,
-3,
-12,
6,
-2,
-26,
3,
45,
-44,
-34,
13,
-1,
38,
-46,
-9,
-19,
-11,
-44,
61,
30,
-34,
41,
-34,
-31,
-10,
-19,
10,
-15,
-1,
14,
-45,
-9,
18,
-23,
21,
-7,
59,
10,
23,
35,
3,
-7,
-69,
0,
-20,
-7,
-40,
14,
39,
-44,
27,
-24,
-19,
-6,
1,
53,
-24,
32,
6,
-6,
-67,
-22,
54,
-45,
13,
-10,
-25,
9,
34,
-9,
19,
-4,
4,
21,
-1,
14,
-46,
0,
-3,
15,
6,
29,
-14,
-4,
-11,
15,
-17,
72,
-5,
20,
-15,
-36,
51,
6,
56,
-27,
1,
-35,
25,
80,
-15,
-23,
-20,
-14,
-16,
55,
-21,
2,
-19,
11,
47,
-2,
45,
28,
-83,
-19,
19,
-8,
-1,
7,
14,
-23,
7,
22,
35,
-21,
33,
8,
-5,
-32,
-77,
13,
-18,
40,
21,
4,
97,
14,
37,
2,
5,
31,
-52,
-72,
-28,
17,
-31,
-33,
2,
-22,
20,
33,
-48,
24,
-23,
-44,
7,
22,
-16,
6,
-27,
1,
-9,
0,
-28,
38,
-65,
19,
12,
-30,
7,
-10,
-12,
-29,
-3,
32,
-29,
-25,
-38,
-23,
6,
-43,
-47,
42,
0,
9,
-3,
-8,
52,
8,
-50,
-4,
30,
-36,
5,
2,
-29,
-67,
-22,
43,
-30,
4,
-5,
51,
-44,
-57,
5,
-11,
28,
59,
8,
-26,
3,
-28,
-6,
-7,
-1,
-5,
-22,
69,
-28,
-2,
57,
-16,
8,
-19,
-13,
-72,
35,
56,
20,
26,
-56,
-21,
-31,
-27,
3,
22,
18,
14,
16,
8,
28,
-8,
-4,
32,
19,
-2,
-13,
71,
13,
35,
-7,
39,
41,
-23,
22,
16,
35,
10,
6,
4,
34,
-37,
12,
-40,
8,
-13,
6,
39,
-12,
-54,
-6,
-39,
-46,
36,
-24,
35,
-38,
-18,
6,
3,
-17,
-37,
4,
4,
-7,
5,
-1,
39,
48,
-21,
12,
26,
-58,
6,
-11,
-62,
10,
-25,
29,
-13,
0,
20,
-29,
9,
1,
-40,
0,
-31,
12,
-5,
7,
-24,
47,
-29,
18,
-44,
11,
15,
-3,
-61,
-5,
-22,
16,
-54,
34,
2,
36,
-36,
-15,
-27,
-53,
1,
1,
-38,
7,
-51,
-14,
-23,
66,
-4,
31,
-52,
-20,
-38,
2,
1,
-42,
4,
60,
19,
-6,
-2,
37,
20,
-49,
45,
-40,
-13,
-48,
17,
10,
12,
5,
-14,
-1,
24,
-29,
24,
-36,
-41,
-6,
32,
14,
-80,
-29,
-15,
-31,
-61,
-6,
26,
-8,
4,
-13,
-6,
-17,
34,
-18,
5,
-27,
0,
14,
-46,
-6,
9,
-20,
-44,
15,
-2,
-18,
-9,
-16,
44,
51,
-63,
-38,
26,
3,
15,
-39,
-7,
-11,
-21,
-15,
7,
-26,
1,
19,
41,
-15,
57,
36,
10,
12,
-3,
19,
17,
-7,
41,
-29,
-34,
20,
15,
38,
6,
2,
-30,
14,
-3,
-5,
44,
-33,
-50,
-12
] |
North, C. J.
This case has been before this court on a former occasion and is reported in 238 Mich. 464 (52 A. L. R. 941). The plaintiff owned 3,000 shares of stock in the Gladys Belle Oil Company. The certificates, indorsed in blank by plaintiff, were placed in a safety deposit box where they were accessible both to the plaintiff and her daughter, Hazel Peckinpaugh Kemp. In April, 1920, Ernest A. Kemp, who married plaintiff’s daughter, deposited these stock certificates with the defendant as collateral to his 60-day note for $1,100 given incident to a loan made to him for that amount. Some time in the spring of 1920 plaintiff learned that her stock was so pledged. She testified that she immediately notified the defendant that the stock certificates had been taken and used as collateral without her knowledge or consent. Some of defendant’s officials denied knowledge of such notice. Kemp’s note fell due June 18, 1920. It was not paid. On November 15, 1920, Hazel Peckinpaugh Kemp gave to defendant her note for $1,100 payable in three months. This note recited that these stock certificates were held as collateral thereto. Kemp’s note was marked, “Canceled, November 15, 1920, by renewal note given by Hazel Peckinpaugh. H. W. Noble & Company, by T. C. Dana, treasurer.” The Hazel Peckinpaugh note was not paid at maturity; and when the defendant was about to sell the certificates held as collateral plaintiff replevined them, claiming that the defendant’s possession thereof was unlawful. Plaintiff had verdict; but judgment non obstante veredicto was entered for the defendant on its motion for $1,592.25, the defendant having elected to take judgment for the value of its lien interest in the stock replevined by plaintiff.
The sole question presented by plaintiff’s writ of error is this: Was the judgment non obstante veredicto properly entered? In support of the motion for such a judgment, defendant’s counsel assigned among other reasons the following:
“The plaintiff failed to show by a preponderance of the evidence defendant’s possession was unlawful at the time the writ was served; that from the undisputed facts in the .case defendant’s possession of the property at the time of the service of the writ was lawful and not contrary to any right of the plaintiff. ’ ’
The burden of establishing her right of possession at the time this replevin suit was instituted was upon the plaintiff. At that time the stock was held by the bank as collateral to plaintiff’s daughter’s note. As above stated, plaintiff had kept these certificates indorsed, in blank in a safety deposit box to which both she axid her daughter had access. For substantially two years before she replevined these certificates, plaintiff knew they were in defendant’s possession.
In this record the appellant has taken the position that whatever rights defendant has in this stock is by reason of its beixxg held as collateral to the note given by plaixitiff’s daughter,- and that this note was given after notice to the defexidant that plaintiff • did not consent to the use of this stock as collateral to Mr. Kemp’s xxote. This does not cover the issue as to whether plaixitiff either consented to her daughter using the stock as collateral which she knew at that time was in defendant’s possession indorsed in blank or whether she had knowledge of its being so used by her daughter. On this issue the burden was upon the plaintiff. She testified in her own behalf, but neither she nor any other witness gave testimony on this issue. In the .absence of any testimony of this character the defendant’s motion for a directed verdict should have been granted, and the trial judge was right in subsequently entering judgment non obstante veredicto. The judgment so entered is affirmed.
Fead, Btjtzel, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
-11,
15,
85,
33,
-22,
8,
59,
-8,
24,
-8,
-4,
13,
6,
93,
11,
0,
34,
-18,
42,
-19,
-62,
-67,
-78,
11,
-8,
19,
-9,
4,
34,
60,
3,
0,
-12,
30,
-63,
14,
-42,
37,
-14,
7,
-25,
39,
63,
20,
-16,
-23,
-22,
-29,
22,
-18,
20,
-29,
44,
-20,
-18,
10,
8,
-15,
-12,
31,
0,
-54,
63,
7,
-9,
-12,
-34,
38,
-18,
16,
-9,
-36,
-16,
-23,
-6,
-10,
3,
30,
-13,
-7,
-6,
-38,
20,
12,
-64,
36,
-28,
-35,
19,
-1,
-25,
13,
-57,
-14,
-21,
27,
-59,
11,
12,
1,
-6,
-21,
-28,
-5,
6,
14,
-1,
-25,
-9,
12,
-8,
28,
15,
-24,
-40,
-33,
-46,
-9,
0,
-35,
17,
35,
28,
44,
23,
19,
-44,
-11,
5,
1,
13,
14,
-59,
3,
-1,
-22,
34,
-53,
1,
-51,
1,
38,
-49,
-11,
-40,
14,
64,
-28,
-20,
-23,
-19,
4,
11,
24,
-6,
-33,
35,
-31,
-5,
-54,
4,
-24,
23,
-7,
1,
-20,
6,
-7,
-44,
-10,
11,
42,
-56,
-52,
-10,
11,
0,
-50,
-25,
-19,
27,
27,
34,
9,
-29,
0,
24,
-11,
22,
43,
9,
11,
13,
60,
-76,
15,
-36,
4,
55,
-31,
47,
-16,
-6,
-34,
-31,
-1,
-29,
-51,
-21,
-6,
4,
2,
-5,
-14,
-17,
38,
-7,
-38,
15,
14,
9,
6,
-1,
49,
28,
-49,
-4,
-30,
2,
0,
-14,
20,
-1,
0,
-3,
46,
28,
-6,
25,
-3,
-28,
20,
2,
-9,
-14,
-69,
-25,
15,
-23,
49,
-28,
-34,
-76,
43,
36,
-1,
-6,
2,
56,
0,
45,
39,
-46,
5,
-5,
-26,
37,
23,
-38,
4,
23,
-37,
-4,
8,
-11,
-24,
3,
-34,
11,
-3,
8,
10,
-37,
-3,
-9,
17,
-36,
33,
-2,
-18,
9,
41,
3,
12,
13,
3,
3,
-10,
-33,
43,
-33,
-21,
22,
-6,
24,
-11,
-49,
-36,
-72,
-39,
21,
22,
-7,
-47,
25,
2,
-7,
-6,
-12,
-22,
-15,
18,
-27,
23,
32,
44,
11,
-35,
10,
11,
26,
-2,
13,
15,
-55,
-6,
30,
-14,
1,
-37,
6,
69,
-22,
0,
-19,
0,
-1,
-22,
-50,
0,
-48,
-51,
0,
26,
-24,
0,
19,
14,
-27,
41,
-5,
-21,
41,
-14,
13,
31,
-23,
-4,
-9,
92,
55,
2,
-12,
-39,
1,
6,
-28,
-10,
15,
50,
0,
-93,
2,
11,
-15,
8,
3,
-41,
-11,
-14,
-50,
49,
-18,
53,
-21,
-51,
2,
-22,
-42,
7,
0,
26,
-15,
-25,
-60,
-83,
6,
-6,
-15,
37,
19,
14,
6,
-6,
1,
-30,
13,
15,
53,
-1,
24,
-4,
17,
-4,
17,
-40,
50,
20,
-26,
-23,
-23,
39,
17,
2,
20,
-38,
-17,
22,
43,
30,
38,
38,
-18,
18,
16,
36,
36,
-48,
28,
17,
56,
-19,
74,
-10,
-35,
-26,
111,
-12,
10,
-33,
13,
7,
-5,
36,
-15,
15,
13,
-9,
-7,
18,
7,
25,
29,
11,
-23,
40,
19,
-32,
9,
24,
-23,
50,
-7,
-47,
10,
-37,
-23,
-26,
11,
19,
19,
-8,
-21,
-23,
5,
9,
-27,
-33,
1,
5,
3,
6,
56,
0,
-5,
23,
-34,
-46,
-15,
24,
-2,
-27,
24,
39,
22,
1,
2,
26,
1,
36,
23,
6,
-57,
23,
-77,
1,
23,
10,
1,
-18,
-12,
28,
-28,
-27,
19,
-9,
-20,
0,
-36,
-45,
-74,
70,
14,
54,
-28,
2,
8,
8,
-47,
-5,
-12,
-16,
2,
15,
0,
40,
15,
19,
-20,
-11,
-45,
59,
24,
-4,
99,
-19,
-11,
1,
-7,
17,
-4,
-53,
11,
14,
5,
25,
-17,
38,
9,
-10,
34,
18,
62,
-70,
-48,
55,
-5,
36,
-6,
-10,
-7,
-26,
6,
-15,
55,
-41,
-5,
-4,
15,
0,
2,
-5,
0,
-3,
-28,
1,
-29,
29,
0,
-34,
-12,
24,
9,
16,
61,
-31,
13,
-47,
-10,
-36,
10,
29,
-46,
59,
40,
8,
-37,
32,
8,
21,
33,
-33,
9,
36,
-34,
-4,
-35,
3,
-48,
12,
22,
-42,
20,
-28,
18,
0,
-36,
-18,
23,
5,
6,
20,
4,
10,
-5,
-17,
69,
-24,
4,
-53,
21,
0,
-26,
5,
-3,
3,
30,
33,
13,
38,
8,
-31,
12,
-48,
53,
16,
44,
42,
31,
10,
-20,
37,
15,
28,
1,
-23,
-45,
38,
19,
-18,
-6,
10,
-51,
29,
-7,
-17,
32,
-15,
35,
21,
7,
-5,
40,
43,
-6,
-23,
-6,
-25,
8,
-9,
0,
-43,
-2,
-17,
-26,
1,
33,
17,
-31,
-46,
-15,
-22,
33,
-22,
-12,
54,
44,
25,
6,
0,
51,
49,
-14,
21,
12,
15,
18,
-37,
-20,
-49,
-32,
18,
-36,
23,
-60,
-1,
-9,
26,
6,
12,
37,
18,
8,
8,
32,
15,
-7,
-10,
-6,
-26,
-48,
7,
16,
-47,
-32,
62,
-87,
-47,
-24,
1,
-33,
-18,
-14,
-10,
-8,
27,
-15,
-12,
11,
39,
-21,
-44,
23,
-2,
13,
-21,
26,
7,
26,
48,
-11,
-39,
8,
-62,
-20,
24,
28,
-14,
-28,
-44,
-35,
-39,
11,
-16,
33,
6,
0,
-2,
4,
10,
15,
-31,
-5,
-37,
-1,
7,
-31,
10,
-35,
7,
-33,
-8,
-10,
5,
-19,
-13,
-28,
12,
-19,
27,
32,
-8,
-22,
4,
7,
-22,
29,
-24,
36,
-21,
-42,
-39,
-22,
23,
31,
-32,
-9,
13,
9,
15,
-40,
4,
-6,
-39,
-39,
-18,
-21,
-17,
-38,
61,
-18,
-46,
-54,
21,
67,
-7,
-34,
12,
0,
16,
-43,
34,
-23,
19,
-16,
23,
70,
-50,
31,
49,
-44,
36,
18,
1,
3,
1,
-10,
-15,
-11,
19,
3,
21,
-8,
13,
3,
-16,
59,
-54,
-18,
17,
-18,
-44,
24,
-24,
-30,
26,
-1,
-16,
-24,
6,
6,
-24,
-2,
21,
-77,
48,
31,
-48,
7,
8,
62,
-10,
-36,
40,
12,
26,
17,
5,
27,
16,
-37,
-10,
-14,
22,
41,
27,
0,
-42,
65,
-6,
13,
-1,
-31,
11,
-35,
-47,
27,
25,
18,
28,
-17,
43,
-14,
43,
-40,
-62,
-24,
37,
-30,
-40,
-4,
71,
-12,
31,
37,
-12,
23,
28,
-1,
4,
-14,
-41,
17,
-13,
-45,
9,
33,
27,
-14,
19,
16,
-47,
-53,
53,
24,
-85,
-25,
-11,
9,
2,
49,
17,
43,
0,
-7,
21,
20,
-2,
-10,
-29,
20,
-15,
35,
6,
-4,
-14,
6,
-20,
-33,
44,
-9,
-24,
26,
56,
24,
20,
-49,
5,
2,
-11,
-17,
17,
5,
54
] |
Butzel, J.
John T. Anderson was insane at the time this transaction here involved occurred. He also owned a Ford, and had in his name a land contract upon which there was due around $2,000, which contract actually belonged to his nephew, aged about 13 years. He turned in his Ford and the land contract at a reasonable discount to defendant Nelson, Olson & Nelson, ínc., hereafter called the sales company, towards the purchase price of a $2,320 car. The balance of the purchase price was evidenced by a conditional sales agreement to the sales company, which agreement together with the sales company’s interest in the car was assigned without recourse but with certain warranties to National Discount Corporation, hereafter called the finance company. Less than three weeks after he bought the car, and before he had personally driven it at all, Anderson sold the car for $500, taking worthless checks in payment. Shortly after this the finance company recaptured the car.
This bill was filed by the guardian of Anderson to set aside the transaction. The trial judge absolved both defendants from any charge of bad faith, but held that Anderson was in fact insane, the contract invalid for that reason, required the sales company to account for the value of the Ford and the land contract, and held that the finance company should restore the automobile to the sales company upon payment to it of the amount due on the conditional sales agreement, or upon default so to do, to respond for its value at the time the finance company recaptured the car less the amount so due. The latter provision of the decree is the cause of this appeal. Neither defendant here contends that the court was in error in finding that Anderson was insane. The sales company does not question the provision that it respond to the guardian, but in sists that, having been required so to do and the contract being void from the beginnings it should be restored what it parted with upon payment of all that is due to the finance company, and that a court of equity having acquired jurisdiction should retain it for the settlement of all differences, such settlement to be made upon equitable grounds.
The first contention of the finance company that the sales company is pot entitled to any affirmative relief because its answer did not pray for such relief is answered by the numerous holdings of this court that in the interest of justice this court will permit an amendment to pleadings, or treat pleadings as amended where so to do will permit affirmance of judgments or decrees, but not where it will work a reversal.
Both defendants sought to sustain the sanity of Anderson and the validity of the agreement. There is no doubt upon this record that both defendants were unaware of his mental condition and made the respective deals in good faith. Plaintiff’s proof overwhelmingly established his insanity. He is at present in the Traverse City hospital and had been confined there for a considerable period beginning in 1920. A brother and a sister have for some time been confined in insane asylums. When the testimony establishing the invalidity of the contract was introduced and it became apparent that the sales company would have to account to the guardian for upwards of $2,000, the defendants no longer pulled together, but each sought to protect itself, and they did not then quibble about the state of the pleadings. We.should not under these circumstances reverse a decree which, when modified, will be right as matter of fact and of law, on account of defects in pleadings which could properly be cured by an amendment.
Quite likely the papers delivered to the finance company conveyed title to it of the automobile. At least they transferred a paper title. Such title was subject to the condition that the balance due on the purchase price be paid in installments. Both defendants had mistakenly dealt upon the theory that Anderson was sane and the conditional sales contract valid. Upon paper, as we have pointed out, it conveyed legal title to the finance company, but it contained a defeasance clause. The manner here employed of financing this transaction is in common use. It is regarded as a loan of money and a conditional sales agreement to secure its repayment. This conditional sales agreement was with an insane man, and it was the duty of a court of equity to rescind it. The proceeding being in equity for a decree of rescission of the contract, it was not a condition precedent that defendants be placed in statu quo. Witte v. Hobolth, 224 Mich. 286; Maurer v. Iden, 242 Mich. 568; O’Neill v. Kunkle, 244 Mich. 653. The court decreed the rescission and attempted to place the parties in statu quo. That is precisely what the decree in the instant case should do. The estate of the insane man should be reimbursed for what it has lost, the finance company should get its money back with interest, if the car has not been disposed of, the sales company should get it back. The trial court, however, in paragraph “E” of the decree provides:
“E. That in event the defendant, National Discount Corporation has sold or disposed of said * * * sedan, or has used same for any purpose other than to transport the same for the purpose of placing it in storage pending the outcome of this suit, then the defendant, Nelson, Olson & Nelson, Ine., shall be entitled to recover from the defendant, National Discount Corporation, the value of said automobile as of the date of the repossession thereof by said last named defendant, less the amount due and unpaid on said conditional sales contract as above fixed, together with interest thereon as above provided; and the defendant, Nelson, Olson & Nelson, Inc., shall have execution therefor.”
It is admitted that after the finance company had repossessed itself of the car, it notified both the sales company and plaintiff’s attorney that it would release the car upon payment of the amount of the lien against it. The sales company had sold title retention contract made with Anderson on what it called its “nonrecourse” form of assignment, which it executed. This form contained a large number of warranties to the Discount company, and among them, the sales company agreed:
“That the face value of said contract is owing by said purchaser and there is no defense thereto; * * * that all parties thereto have legal capacity to contract. ’ ’
In so doing, the sales company agreed to protect the finance company against a situation such as existed in the present case. It is well known that an automobile almost immediately after it leaves the sales room of the manufacturer’s agent becomes a used car and constantly loses value. It is resold at a large discount off of its original list price. The Discount company learned of the claim made by plaintiff before it disposed of the car, and should neither profit nor lose in the transaction if it disposed of the car as a used car for what it ordinarily would bring after a proper effort to realize its value as a used car. If it disposed of the car as a used -ear for what it could get for it after making proper efforts to realize its value as a used car, and it realized more than its lien, it should pay the sales company the difference. If it sold the car for less than its value without first endeavoring to obtain its value as a used car, or it kept and used the car, or it gave it to one of its agents without any effort to realize its market value as a used car, it should pay the sales company the difference between the amount of the lien and the amount the car would have brought had proper efforts been made to sell the car for what a used car in like condition would have brought in the open market, unless it would have brought less than the lien. If after proper efforts had been made to sell the car and it brought less than the amount of the lien, there would be no recourse against the sales company. The lower court shall determine these facts. The decree is accordingly modified as to section “E” thereof, and is otherwise affirmed.
The plaintiff and defendant National Discount Corporation shall recover their costs from defendant Nelson, Olson & Nelson, Inc.
North, C. J., and Fead, Wibst, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
7,
54,
19,
15,
41,
-32,
39,
-7,
-28,
50,
-10,
13,
21,
-8,
-9,
24,
53,
27,
-12,
-7,
-26,
-72,
-13,
1,
-18,
-12,
4,
-79,
-33,
29,
17,
-30,
-14,
-27,
3,
87,
1,
54,
0,
5,
17,
18,
14,
33,
9,
3,
-30,
-58,
17,
7,
18,
-27,
5,
-32,
2,
-19,
13,
7,
-34,
16,
-8,
-55,
36,
28,
-2,
-6,
-18,
51,
47,
40,
-46,
27,
16,
52,
15,
-11,
5,
17,
-18,
-55,
-2,
-41,
61,
-14,
8,
22,
-16,
12,
-47,
-23,
-70,
6,
0,
-39,
5,
17,
2,
-30,
7,
-7,
-1,
-71,
52,
50,
-1,
14,
-37,
-8,
27,
-33,
34,
13,
20,
8,
-16,
-17,
-32,
17,
34,
-25,
-13,
-7,
7,
-2,
-14,
-9,
-12,
17,
-35,
0,
4,
4,
-11,
24,
-19,
-5,
-21,
-35,
-49,
24,
12,
52,
-3,
-1,
7,
30,
86,
-8,
-4,
5,
-55,
15,
14,
22,
-19,
-22,
-39,
-10,
31,
-61,
23,
-2,
47,
-16,
8,
21,
-38,
73,
-21,
-2,
42,
11,
-20,
-22,
51,
25,
-37,
-41,
-43,
-42,
-11,
24,
11,
2,
-14,
-40,
30,
33,
-19,
-33,
-24,
-1,
-15,
23,
4,
-2,
-50,
10,
-6,
-24,
-30,
-46,
-9,
39,
-4,
-10,
19,
51,
1,
60,
-16,
20,
-3,
-30,
-39,
37,
35,
6,
-12,
-21,
27,
-11,
-29,
23,
-35,
-46,
40,
1,
11,
-25,
-37,
11,
-25,
17,
-40,
-57,
30,
-43,
25,
-8,
20,
-10,
-14,
14,
1,
-21,
-12,
-7,
69,
-15,
-18,
21,
-34,
18,
-29,
-50,
4,
16,
-13,
-5,
20,
7,
-22,
-4,
0,
-21,
6,
-16,
-1,
-20,
11,
-6,
5,
10,
-12,
-56,
-22,
11,
-28,
-20,
16,
-23,
34,
-42,
-22,
15,
32,
42,
-31,
-34,
17,
-8,
66,
-46,
17,
-14,
6,
-2,
-30,
11,
-27,
-45,
-37,
-31,
30,
-16,
-2,
-4,
-10,
-17,
-32,
-42,
-1,
-14,
8,
-13,
5,
-10,
7,
-44,
28,
67,
-13,
24,
23,
-10,
48,
-41,
-13,
-43,
28,
-11,
-8,
-10,
40,
-34,
2,
-7,
-9,
40,
-17,
-6,
-18,
0,
50,
23,
51,
9,
1,
5,
-16,
-39,
-64,
22,
34,
0,
35,
7,
-25,
-18,
20,
-15,
-1,
8,
-40,
11,
27,
9,
-3,
34,
7,
5,
-74,
30,
-13,
-3,
-16,
-24,
-34,
22,
44,
-2,
25,
-26,
15,
-17,
-36,
-38,
-58,
22,
-58,
55,
-13,
21,
-10,
-44,
-25,
-7,
-1,
2,
9,
32,
-27,
-48,
-24,
-3,
75,
18,
-14,
-13,
-21,
-45,
13,
15,
4,
33,
19,
-4,
-33,
-22,
-8,
7,
-2,
8,
41,
-33,
-1,
20,
-14,
34,
-11,
9,
38,
10,
36,
-12,
-30,
-27,
22,
56,
10,
11,
-27,
-6,
13,
8,
2,
-10,
31,
4,
36,
-45,
19,
6,
23,
52,
63,
-14,
-54,
-20,
-20,
-73,
45,
6,
3,
-30,
21,
-24,
11,
6,
39,
54,
53,
-3,
17,
-31,
3,
-46,
-11,
-2,
-45,
-25,
-21,
-36,
-63,
-33,
-80,
18,
-3,
-36,
21,
20,
12,
0,
-7,
-7,
2,
7,
-16,
-27,
6,
0,
1,
28,
22,
-42,
-8,
-23,
-2,
-13,
4,
-22,
21,
35,
5,
40,
15,
32,
34,
61,
33,
41,
-36,
-16,
24,
1,
2,
17,
-4,
-34,
12,
7,
9,
-29,
-1,
-19,
-8,
9,
6,
-8,
-32,
16,
-30,
7,
-12,
-19,
12,
-9,
22,
-16,
-15,
-17,
28,
-12,
12,
9,
22,
8,
-29,
18,
-20,
75,
-5,
-3,
57,
4,
-19,
23,
28,
-22,
-5,
6,
1,
7,
-7,
-43,
6,
-33,
-48,
10,
-68,
24,
16,
-9,
-48,
22,
29,
50,
-4,
-37,
6,
-12,
33,
-16,
23,
12,
64,
-6,
-18,
15,
-32,
27,
-50,
15,
61,
-40,
-13,
31,
-40,
-4,
2,
19,
27,
-10,
5,
-4,
-15,
-8,
-12,
25,
-25,
22,
15,
-40,
0,
38,
12,
34,
-31,
5,
1,
-77,
-43,
-8,
-24,
19,
42,
55,
-51,
-55,
-14,
-16,
22,
-43,
25,
-28,
-42,
20,
-17,
3,
-8,
0,
2,
22,
0,
41,
-6,
-21,
10,
-33,
40,
-35,
-37,
-36,
-5,
-18,
-20,
-16,
10,
5,
-9,
6,
-9,
24,
58,
55,
17,
75,
-30,
15,
7,
-18,
-4,
-16,
-11,
13,
21,
10,
57,
-5,
10,
-6,
-26,
-21,
-69,
7,
39,
37,
-17,
-35,
28,
24,
-12,
12,
-50,
50,
-77,
61,
-23,
38,
-14,
-18,
-2,
-30,
-32,
26,
36,
-31,
-59,
-65,
5,
-21,
-3,
-55,
-28,
3,
26,
-26,
-37,
24,
-2,
-6,
11,
11,
-8,
64,
19,
-50,
-6,
-29,
0,
59,
14,
-2,
-13,
-17,
-23,
25,
1,
-14,
0,
-23,
21,
44,
-24,
8,
-5,
35,
-27,
-42,
-19,
69,
-9,
23,
10,
10,
-28,
-34,
-11,
-48,
4,
-14,
-32,
-4,
-19,
-5,
30,
18,
26,
-5,
-7,
-7,
-9,
56,
-19,
-44,
14,
29,
39,
26,
65,
23,
34,
27,
-4,
10,
28,
73,
36,
-20,
-60,
49,
-40,
33,
-10,
-2,
20,
19,
25,
-41,
-5,
2,
6,
-14,
22,
4,
6,
11,
-51,
0,
34,
9,
-74,
4,
-23,
0,
-13,
-23,
-18,
28,
5,
-36,
-18,
44,
-20,
27,
46,
-13,
-11,
-42,
3,
5,
-24,
42,
9,
27,
-12,
64,
-13,
-9,
2,
-38,
-19,
11,
-34,
11,
-15,
13,
-15,
-28,
0,
-14,
-21,
-19,
31,
-22,
2,
59,
22,
23,
-5,
16,
23,
32,
33,
10,
22,
-30,
-30,
26,
28,
-33,
-48,
50,
-59,
6,
31,
-29,
-7,
30,
-42,
-43,
-38,
-44,
-10,
-2,
-48,
24,
43,
-21,
-6,
48,
-72,
-9,
26,
28,
23,
40,
-33,
-27,
17,
11,
26,
-4,
-20,
7,
6,
3,
0,
-17,
32,
-14,
-37,
3,
-2,
-9,
8,
0,
-14,
4,
20,
34,
10,
1,
-2,
-75,
14,
-33,
-6,
14,
27,
-44,
21,
40,
1,
-77,
-1,
16,
-38,
0,
4,
37,
41,
29,
-11,
18,
-65,
-7,
18,
-29,
-70,
-41,
36,
-26,
56,
27,
41,
-9,
-44,
4,
51,
-15,
-16,
-12,
4,
6,
4,
-31,
-35,
2,
3,
31,
-13,
13,
27,
22,
11,
55,
-26,
45,
17,
-22,
34,
34,
1,
5,
42,
41,
44,
-40,
8,
-8,
31,
1,
-42,
16,
7,
-32,
38,
-10,
-13,
-16,
13,
-46,
3,
31,
22,
18,
37,
26,
-7,
24,
-14,
4
] |
Wiest, J.
This suit was brought in assumpsit upon an open account. The declaration was on the common counts, accompanied by a bill of particulars. The plea was the general issue. Plaintiff moved for summary judgment upon a showing by affidavit of its general credit manager that:
“She has had principal charge of the above claim and has full knowledge of the facts and circumstances surrounding the above transaction. * * *
“That said account is true and just and that all merchandise on which said account is based has been sent to the defendant, Detroit Dress Company, and that the said defendant has never disputed the correctness of said account, and has previously made payments on the said open account in the sum of three hundred sixty-nine and 91/100 ($369.91) dollars, the original amount of said account being eighteen hundred fifty-eight and 95/100 ($1,858.95) dollars. * * *
£ £ That the defendant has no defense on the merits to all or any part of plaintiff’s claim and states that the plea heretofore filed by the defendant was filed solely for the purpose of delaying entry of judgment in this cause. ’ ’
Defendant’s vice-president filed a counter affidavit upon personal knowledge, admitted specific items, and set up that the difference between the parties “is that the plaintiff has increased the agreed price for each dress purchased by defendant in the sum of twenty-five cents ($0.25) per dress.” There was also an affidavit of merits. The court awarded plaintiff judgment for the full amount of its claim, and defendant reviews by writ of error, claiming that the affidavit of plaintiff’s credit manager was fatally defective because not upon averment of personal knowledge, and the affidavit of defendant’s vice-president raised a question of fact upon disputed items specified.
We need consider only the second point. The circuit judge could not, upon the affidavits, determine the issue of fact presented by defendant.
Defendant tendered judgment for the confessed amount and plaintiff could, had it cared to do so, have taken judgment for such amount, remitting thereby, however, the amount in dispute. Lakin-Allen Electric Co. v. Wayne Circuit Judge, 247 Mich. 590.
The judgment is reversed, and a new trial ordered, with costs to defendant.
North, C. J., and Fead, Butzel, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
-17,
-5,
-7,
-11,
4,
3,
92,
-18,
-3,
46,
21,
-33,
43,
14,
-27,
5,
39,
14,
-7,
-28,
-2,
-58,
-49,
13,
-5,
39,
25,
-33,
42,
-11,
-32,
-27,
-23,
-16,
-38,
-24,
0,
-1,
-29,
-28,
7,
-5,
47,
-30,
-32,
-25,
-20,
-64,
45,
-64,
44,
-2,
-29,
-11,
-9,
-16,
14,
-9,
-26,
-21,
6,
-24,
29,
-45,
-33,
3,
-31,
23,
-36,
13,
-10,
-6,
41,
-28,
-31,
-77,
-60,
7,
-42,
-20,
0,
-56,
19,
44,
-9,
13,
-9,
-23,
-40,
-26,
18,
75,
-33,
-21,
-8,
6,
57,
-1,
15,
8,
-48,
21,
-7,
71,
32,
59,
-19,
-63,
-32,
7,
9,
-11,
12,
-25,
-30,
13,
5,
-2,
53,
-42,
29,
12,
27,
3,
8,
-3,
27,
20,
-55,
-2,
40,
33,
-25,
46,
13,
2,
-27,
-22,
-19,
15,
70,
-15,
-33,
-8,
0,
66,
47,
-22,
6,
-14,
-36,
11,
29,
28,
40,
-1,
-9,
-45,
-14,
-63,
66,
6,
-19,
-40,
-4,
-25,
-7,
23,
13,
-23,
-16,
16,
17,
-48,
-4,
62,
25,
-55,
-40,
-36,
-19,
30,
-11,
2,
0,
7,
40,
-55,
-31,
-21,
-2,
-6,
0,
29,
6,
6,
24,
26,
42,
-46,
37,
-60,
-11,
-23,
-6,
16,
11,
-57,
0,
-43,
23,
-14,
26,
-56,
-29,
-34,
-6,
-5,
-29,
-5,
-23,
32,
-21,
47,
-31,
-39,
4,
6,
32,
55,
-26,
5,
7,
11,
-2,
-3,
17,
10,
12,
-6,
-25,
-15,
4,
-32,
-16,
26,
-19,
-29,
-26,
-31,
6,
37,
-14,
2,
-108,
-25,
11,
26,
0,
8,
-14,
64,
-46,
56,
-17,
3,
-16,
45,
-26,
-14,
-34,
-25,
1,
-11,
28,
1,
-50,
4,
-27,
30,
-13,
-44,
-11,
-8,
-14,
46,
5,
15,
18,
65,
25,
12,
-5,
-35,
59,
11,
-21,
-26,
-18,
-3,
-37,
-39,
20,
3,
-24,
-3,
26,
11,
-23,
-5,
-17,
-11,
31,
2,
31,
24,
14,
-27,
36,
-15,
-24,
16,
-2,
47,
2,
-27,
52,
-58,
-22,
-45,
-32,
-2,
19,
-25,
16,
-57,
30,
-15,
-6,
7,
83,
8,
11,
5,
-12,
0,
-4,
-30,
-48,
-7,
-29,
-11,
-7,
30,
10,
-40,
28,
15,
-5,
14,
32,
7,
14,
-38,
12,
26,
-4,
3,
-23,
93,
-39,
1,
-36,
6,
-13,
-26,
-32,
-11,
-64,
49,
-33,
-32,
-20,
17,
30,
-10,
-45,
-14,
-11,
37,
-44,
27,
2,
18,
-24,
-6,
-12,
-3,
-58,
11,
2,
16,
70,
0,
-45,
8,
13,
-38,
22,
30,
12,
-11,
-23,
-14,
-14,
-29,
33,
6,
25,
17,
17,
-39,
-12,
-12,
22,
-24,
30,
35,
-23,
-29,
-12,
-3,
-14,
-12,
12,
9,
-14,
23,
23,
27,
10,
32,
-50,
3,
37,
-36,
-28,
0,
23,
29,
58,
2,
56,
-26,
62,
22,
-12,
-15,
18,
-23,
18,
-21,
20,
-8,
-4,
-12,
58,
-18,
19,
26,
1,
29,
-5,
31,
26,
-10,
25,
-29,
0,
-6,
17,
44,
33,
-61,
-39,
23,
-33,
-70,
-24,
22,
20,
-22,
-19,
15,
22,
-26,
-27,
-12,
-27,
-20,
-61,
0,
10,
-27,
17,
17,
-15,
-61,
6,
-12,
6,
14,
30,
-3,
2,
41,
30,
41,
-19,
68,
3,
3,
-22,
48,
3,
15,
-4,
2,
-13,
0,
9,
26,
18,
-48,
17,
-3,
4,
-25,
20,
-3,
-12,
68,
4,
6,
-2,
1,
-16,
-65,
-15,
60,
0,
-8,
18,
48,
-3,
10,
58,
-9,
24,
-50,
-33,
24,
-1,
-4,
62,
-30,
0,
-40,
31,
-29,
-21,
-21,
-24,
14,
-4,
-13,
7,
9,
-6,
-19,
25,
9,
-21,
-64,
-17,
19,
22,
11,
10,
-10,
18,
-16,
6,
-42,
26,
-49,
-15,
-18,
39,
24,
21,
-4,
-62,
-6,
-9,
-28,
-20,
46,
-24,
-40,
74,
25,
54,
-23,
8,
8,
4,
-15,
23,
23,
36,
12,
18,
16,
28,
-14,
-14,
-52,
-21,
1,
3,
-38,
14,
12,
9,
6,
-9,
30,
-27,
-31,
-10,
-1,
29,
2,
12,
-52,
0,
-13,
14,
-10,
9,
32,
48,
3,
-5,
3,
52,
-5,
8,
-31,
17,
0,
-14,
32,
4,
20,
2,
-27,
69,
-26,
12,
-23,
11,
0,
49,
4,
-23,
19,
-51,
15,
-27,
8,
-13,
13,
-37,
-36,
2,
8,
38,
-56,
-14,
-9,
-48,
-14,
33,
20,
41,
-11,
-53,
-23,
-5,
-29,
3,
12,
10,
9,
-12,
36,
-1,
36,
-18,
-33,
-40,
38,
-9,
-10,
-26,
39,
-31,
-32,
-22,
-13,
64,
-31,
1,
-25,
27,
0,
19,
19,
36,
26,
13,
31,
-9,
49,
-15,
-34,
10,
-3,
54,
48,
18,
-13,
-12,
-7,
5,
14,
20,
7,
21,
5,
79,
2,
-20,
26,
5,
-29,
15,
-10,
-40,
34,
-6,
15,
17,
32,
-45,
-17,
-24,
-8,
-65,
8,
5,
-23,
-42,
82,
43,
-41,
49,
-3,
24,
12,
-17,
47,
35,
-36,
11,
-13,
-4,
48,
10,
-36,
-25,
-23,
-15,
42,
-10,
2,
-21,
-39,
-1,
33,
25,
7,
-11,
31,
-20,
21,
2,
-22,
9,
-21,
18,
-52,
14,
-32,
5,
-13,
-29,
0,
-8,
50,
26,
3,
12,
12,
-22,
-10,
1,
6,
-28,
-27,
-9,
7,
-23,
58,
29,
-47,
-9,
-38,
-31,
-10,
-9,
34,
27,
30,
-26,
12,
14,
-8,
5,
14,
12,
5,
-37,
-7,
-18,
34,
-15,
-6,
16,
15,
-47,
-21,
9,
-18,
-24,
1,
33,
-31,
-15,
65,
-33,
1,
-8,
37,
5,
-15,
-24,
-30,
17,
9,
0,
30,
-10,
17,
46,
-1,
-46,
21,
16,
17,
-8,
3,
43,
-14,
-22,
-61,
26,
-23,
44,
8,
-19,
9,
27,
-6,
8,
47,
-50,
29,
25,
-32,
43,
43,
9,
42,
28,
-10,
-43,
18,
-15,
-1,
-7,
-14,
6,
-2,
45,
9,
-21,
-8,
-31,
-27,
-2,
39,
-27,
-24,
-10,
-22,
19,
16,
0,
-21,
16,
-19,
-30,
6,
-47,
46,
-13,
-14,
-8,
20,
-21,
36,
-30,
-13,
3,
-42,
-31,
23,
10,
33,
14,
3,
28,
34,
15,
7,
10,
35,
-43,
-25,
-37,
-55,
-36,
-24,
34,
-23,
-58,
36,
41,
-23,
-35,
28,
10,
-29,
-31,
12,
19,
-42,
48,
18,
-12,
-33,
-40,
-37,
40,
-4,
-32,
-22,
-11,
24,
35,
-33,
-19,
-59,
51,
41,
-28,
15,
-13,
-9,
40,
43,
-1,
-14,
-10,
-9,
53,
23,
29,
16,
63,
33
] |
Fead, J.
Plaintiff was defendant in an attachment suit pending in circuit court. He brought proceedings before a circuit court commissioner to dissolve the attachment. Dissolution having been denied, he took an appeal to the circuit judge as provided in 3 Comp. Laws 1915, § 13079. On motion before the circuit judge, the appeal was dismissed because the defendant had not given the plaintiff notice of the appeal as provided by that part of Circuit Court Eule No. 11 which reads:
“In cases of appeal from a circuit court commissioner or the justice’s court, the party appealing shall serve notice of the appeal upon counsel for the opposite party in the court below, * * * within five days after the return on appeal is filed in the office of the county clerk.”
This amendment to Eule No. 11 was adopted April 14, 1927. On the same day an amendment to Eule No. 39 was adopted, establishing the time for demand for a jury in circuit court in cases appealed from a circuit court commissioner or the justice’s court. 237 Mich. xxxiii and xxxiv. These amendments are related to each other, and were adopted as a means of facilitating trial of appeal cases in circuit court by establishing a definite time for demand for a jury as of right.' The amendment to Rule No. 11 was intended to apply only to appeals from final judgments in cases where a jury could be demanded in circuit court.
A proceeding for dissolution is in the nature of a motion, the decision thereon is not a judgment but is an interlocutory order, it does not disturb the regular ordinary proceedings in the case (Gray v. York, 44 Mich. 415), and is not reviewable by writ of error (Gore v. Ray, 69 Mich. 114).
A writ of mandamus will be issued, if necessary, requiring the circuit judge to set aside the order dismissing the appeal, without costs.
North, C. J., and Butzel, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
-29,
14,
2,
-14,
-39,
48,
-6,
-26,
-14,
50,
-43,
0,
-30,
-25,
-77,
-10,
58,
-75,
38,
24,
8,
23,
15,
-2,
5,
-76,
1,
-2,
-15,
-12,
-37,
8,
-44,
30,
19,
-35,
-53,
-6,
29,
-6,
-27,
11,
19,
-26,
-39,
-28,
29,
19,
-14,
18,
8,
-11,
-58,
14,
-11,
-7,
-5,
-21,
-15,
16,
-25,
53,
12,
14,
-14,
47,
-25,
-1,
-3,
-86,
-56,
-18,
43,
17,
14,
-35,
-21,
17,
-8,
-3,
6,
-2,
-29,
-18,
25,
24,
-7,
10,
16,
35,
-69,
39,
-68,
-23,
4,
-6,
23,
-67,
25,
-45,
45,
33,
-9,
16,
-35,
20,
32,
0,
-3,
-42,
-10,
-45,
28,
-17,
1,
-8,
-35,
-41,
15,
-42,
56,
-13,
30,
-10,
-11,
48,
9,
16,
10,
14,
-32,
18,
51,
1,
35,
18,
14,
-13,
9,
-61,
48,
-7,
55,
-13,
-9,
-3,
30,
-3,
-15,
23,
6,
79,
-18,
50,
2,
23,
32,
-16,
30,
22,
31,
29,
-40,
-26,
18,
-23,
-41,
-12,
20,
21,
-15,
33,
30,
-10,
15,
-1,
-9,
8,
-38,
13,
-14,
45,
10,
-32,
12,
-10,
7,
-18,
4,
-23,
10,
-18,
4,
5,
-10,
3,
41,
49,
18,
-8,
-17,
-14,
25,
1,
-34,
-25,
25,
16,
34,
39,
-50,
17,
-51,
1,
-17,
-22,
1,
-20,
-13,
21,
-12,
14,
25,
23,
-17,
-28,
1,
-34,
27,
57,
-11,
67,
-30,
-21,
9,
0,
12,
-18,
26,
-6,
-50,
32,
28,
-22,
-31,
-6,
7,
11,
9,
27,
20,
49,
0,
-14,
7,
-15,
-33,
-27,
-42,
40,
21,
14,
-16,
19,
-31,
39,
18,
8,
31,
15,
16,
26,
0,
-4,
26,
-34,
-32,
8,
11,
-1,
-1,
-5,
-30,
18,
-90,
-16,
-19,
-20,
32,
53,
-30,
24,
-51,
23,
-31,
52,
19,
45,
21,
-4,
-6,
12,
10,
22,
3,
-44,
-44,
-44,
0,
-27,
-4,
33,
-22,
-3,
8,
8,
-4,
12,
-13,
-61,
-8,
6,
-27,
-38,
0,
13,
43,
-5,
13,
0,
-28,
13,
17,
-28,
14,
23,
16,
39,
-3,
18,
4,
-30,
-37,
32,
3,
-13,
-2,
-23,
4,
-10,
-24,
-2,
43,
7,
-9,
-81,
19,
-55,
-17,
18,
12,
9,
11,
-15,
60,
-6,
17,
-16,
13,
21,
-48,
-10,
29,
-41,
-27,
-11,
17,
-21,
2,
22,
-42,
-28,
-19,
0,
69,
-67,
-3,
-3,
8,
38,
-2,
-22,
-6,
-33,
-9,
68,
21,
-23,
1,
25,
29,
13,
-26,
-21,
-12,
38,
-29,
0,
20,
34,
61,
35,
37,
35,
15,
-13,
10,
-2,
49,
-25,
20,
-21,
-14,
-41,
-14,
49,
0,
-25,
0,
-15,
0,
37,
6,
-15,
12,
71,
1,
-3,
-60,
-7,
-20,
7,
37,
-13,
-7,
-18,
-18,
-3,
-12,
16,
-11,
-3,
81,
-28,
-20,
11,
-26,
39,
2,
-46,
29,
-36,
-15,
45,
-74,
-12,
-24,
12,
52,
-12,
-29,
-3,
-26,
23,
-54,
21,
-12,
5,
-25,
9,
-5,
14,
-10,
18,
-22,
25,
0,
-51,
2,
-17,
-5,
-19,
12,
17,
-49,
3,
-24,
-36,
-28,
-22,
3,
1,
10,
-12,
45,
27,
22,
-6,
54,
48,
7,
28,
59,
27,
21,
2,
-58,
3,
3,
-31,
-22,
-62,
-26,
28,
-23,
-2,
12,
-6,
1,
-25,
36,
36,
1,
-33,
-21,
20,
-39,
-58,
-3,
0,
17,
54,
21,
19,
17,
-6,
-46,
-17,
-5,
-12,
23,
-1,
-18,
-52,
-43,
24,
-30,
-8,
-22,
-1,
40,
6,
6,
6,
31,
-26,
21,
-52,
-19,
42,
22,
6,
1,
-11,
-7,
-8,
17,
-36,
9,
-30,
-19,
28,
-55,
3,
38,
-77,
-23,
-27,
17,
1,
-6,
-2,
15,
-8,
22,
-5,
37,
18,
70,
-9,
-16,
23,
-16,
24,
-18,
7,
7,
49,
-2,
3,
26,
0,
-23,
57,
32,
-4,
25,
-3,
11,
49,
-1,
39,
16,
0,
-11,
-50,
5,
-25,
-23,
-33,
48,
46,
39,
-17,
-61,
50,
9,
54,
4,
-26,
-19,
41,
29,
-25,
-13,
-46,
-45,
-14,
21,
8,
-34,
50,
4,
-28,
24,
-4,
13,
41,
19,
-21,
-4,
-15,
11,
-39,
36,
25,
9,
-10,
7,
-15,
16,
12,
27,
-34,
-16,
-9,
-16,
-4,
39,
33,
-5,
-37,
-63,
14,
-41,
56,
33,
59,
-21,
24,
12,
-8,
18,
-48,
-12,
-1,
0,
37,
7,
-5,
19,
5,
4,
-14,
-43,
-31,
-7,
29,
91,
-21,
-86,
29,
26,
-3,
14,
-46,
2,
-35,
6,
-4,
30,
1,
-22,
-1,
20,
19,
2,
-21,
16,
-19,
-16,
-2,
-1,
-16,
-26,
-5,
0,
-7,
16,
30,
-8,
-6,
0,
-24,
24,
25,
-34,
15,
-2,
8,
40,
20,
-7,
0,
-12,
34,
23,
-5,
-31,
-19,
-2,
-17,
-30,
-40,
-35,
-37,
27,
19,
7,
20,
-29,
-46,
32,
-47,
-26,
6,
-21,
3,
15,
-55,
13,
-15,
-1,
12,
-15,
-14,
14,
7,
15,
-13,
26,
-54,
-41,
-24,
-22,
15,
6,
-86,
11,
41,
0,
-26,
29,
17,
-8,
29,
-12,
7,
-32,
10,
-4,
43,
-37,
4,
18,
10,
-73,
9,
-44,
-32,
2,
49,
30,
54,
-14,
-17,
11,
-3,
19,
42,
51,
-56,
15,
-58,
1,
-60,
15,
-19,
39,
-18,
-28,
-41,
-24,
-44,
-9,
-8,
18,
10,
12,
45,
-17,
43,
-51,
19,
30,
21,
-7,
-27,
26,
-18,
29,
72,
-6,
-14,
-1,
-21,
-22,
-21,
21,
13,
-21,
-56,
-13,
2,
-56,
-16,
-31,
-18,
-1,
-15,
-33,
-52,
-21,
-28,
0,
-55,
-25,
-8,
-62,
36,
24,
42,
-23,
71,
78,
5,
-11,
-34,
27,
-38,
-10,
-46,
51,
13,
42,
-9,
-10,
60,
-5,
36,
47,
19,
14,
-14,
21,
13,
-12,
21,
-7,
-10,
36,
29,
-2,
-3,
-10,
-39,
5,
-4,
47,
51,
-13,
-15,
-26,
-38,
-38,
-3,
-3,
-11,
0,
25,
5,
-32,
1,
21,
-5,
37,
-45,
56,
0,
21,
-19,
-47,
29,
0,
13,
1,
-19,
-7,
-4,
-1,
-6,
2,
16,
-37,
17,
-10,
24,
10,
-50,
48,
15,
-9,
9,
15,
-20,
3,
48,
-6,
-23,
16,
-4,
-59,
18,
-62,
-10,
32,
-65,
-7,
-33,
-30,
9,
-47,
18,
-21,
0,
-12,
40,
-25,
3,
44,
9,
28,
43,
7,
29,
-43,
38,
11,
-37,
21,
-6,
-2,
33,
42,
-37,
18,
-9,
-5,
-19,
-65,
5,
6,
-37,
6
] |
Btjtzel, J.
Tom McDonnell, Inc., defendant and appellee, herein referred to as McDonnell, held a lease from the owner for property on Woodward avenue in the city of Birmingham, Michigan. The lease ran to August 31, 1951, and contained an option to renew for an additional term of 5 years. McDonnell gave a sublease of the premises to Berry-Door Corporation, plaintiff and appellant, herein referred to as Berry, for a term of 4 years and 10 months from November 1, 1946, so that the sublease expired on the same date as the main lease. The-sublease also contained a provision giving Berry an option to renew for a further period of 5 years, on proper written notice, if given 90 days before the expiration of Berry’s lease. Whether or not all rentals had been paid to May 31, 1951, on which date Berry gave McDonnell written notice of renewal,, is not clear. In an earlier equity suit begun by McDonnell, it alleged that Berry was $150 in arrears in its rental payments at that date. On June 20, 1951, McDonnell notified Berry that the latter’s purported exercise of the option on May 31, 1951, was ineffectual and void because the corporate powers of Berry had been suspended, the annual report for the year 1950 not having been accepted. The notice further stated that Berry’s sublease would terminate- on August 31,1951, the end of the original term. Berry paid its rent for July, 1951, only after-suit had been brought. It failed to pay the rent for August, 1951, which became due on August 1,. 1951, whereupon summary proceedings for recovery of possession were begun before the circuit court commissioner for Oakland county, and a judgment was rendered and a writ of restitution issued thereon. Apparently the rent for August, 1951, is still unpaid. McDonnell further claims in an affidavit that no-writ of restitution was ever actually served on Beri'y because the latter voluntarily relinquished possession of the premises. It can be gleaned from a very unsatisfactory record, consisting mainly of oral statements of couxxsel and affidavits on behalf of the parties, that Berry had ceased its manufacturing or more active business for which the premises formerly had been used, but still held its lease óf the premises with the expectation of snhletting such portions as it did not use. It appears that the premises probably could be sublet so as to net more than $500 a month, the rental Berry had agreed to pay, and that Berry might thus realize a profit.
In July, 1951, McDonnell began the equity suit previously referred to and secured a temporary injunction to restrain Berry from seeking to sublet the premises for new terms commencing September 1, 1951, and from claiming constructive possession of the premises beyond August 31, 1951, the end of the original term. The bill was based on the claim that Berry’s corporate powers were suspended on May 31, 1951, so that it could not give a valid and effective notice of renewal of its lease. The equity suit was subsequently dismissed on October 1, 1951, on McDonnell’s own petition in which it stated that it would serve no purpose to continue it as the question of possession had become moot, since after a writ of restitution following judgment had been issued by the circuit court commissioner for Oakland county, Berry had relinquished possession and McDonnell was then in possession. While Berry •denied the allegations in McDonnell’s petition to •dismiss it did not oppose a dismissal, which the •court ordered. c
On October 1, 1951, the day the chancery suit was dismissed by formal order, Berry began the instant action against McDonnell on the law side of the •court. Berry claimed $25,000 damages, plus a like .amount for what it called punitive damages but for which the declaration shows no basis whatsoever. The declaration contains 4 counts, 2 in assumpsit for breach of contract and 2 in trespass on the case. The gist of the 4 counts is Berry’s claim that McDonnell breached the provisions of its lease by not honoring Berry’s exercise of its option for renewal, and that McDonnell wrongfully interfered with Berry’s possession, removed or destroyed Berry’s property on the premises, and unlawfully restrained Berry from negotiating- new subleases with its tenants by the injunctive process; that McDonnell thus prevented Berry from securing the financial benefits in the lease that would have accrued to it had there-not been an unlawful eviction. Berry indicates an -unlawful and malicious use of the injunctive process-to defeat its rights.
McDonnell moved to dismiss solely on the ground that Berry did not have the legal capacity to sue-because of its failure to comply with CL 1948, § 450.-87 (Stat Ann § 21.87); that its corporate franchise had become absolutely void because of the provisions of CL 1948, § 450.91 (Stat Ann § 21.91); that 2 of the counts are predicated upon the alleged exercise of corporate powers at a time when they were suspended for failure to comply with the statutes-(evidently in regard to filing proper reports), and that the other 2 counts did not contain sufficient allegations to make out a case. The affidavit in support of McDonnell’s motion to dismiss set forth an additional ground to those contained in the motion itself directing attention to a judgment and writ of restitution obtained from the circuit court commissioner based upon Berry’s failure to pay the rent that became due on August 1, 1951; that McDonnell instituted action before the circuit court commissioner for Oakland county, to recover possession of the premises for nonpayment of rent; that on August 7, 1951, a judgment of guilty was entered and a writ of restitution issued; that Berry thereafter voluntarily relinquished possession and that the circuit court commissioner’s judgment was res judicata as to the rights of the parties to possession of the premises from and after the date of judgment.
At the hearing on the motion full argument was had as to the effect and validity of the circuit court commissioner’s judgment, the same as if it had been set forth as a ground for dismissal. Berry contended that the judgment was absolutely void and of no force or effect because no jurisdiction had been obtained over it. It admitted that service upon it in that action had been made by serving Donald McGaffey as an officer, hut said that McGaffey Avas not and never had been an officer of Berry. McGaffey is Berry’s attorney in the instant case, and he represented it in the equity suit already referred to and other litigation. He even has filed an affidavit not as to any legal matters hut in regard to the corporation receiving the first notice from the Michigan corporation and securities commission. After listening to the arguments, the judge did not rule on the effect of the circuit court commissioner’s judgment, but dismissed the action on the ground that because of the provisions of CL 1948, § 450.87 (Stat Ann § 21.87), Berry’s corporate powers had been suspended and it, therefore, had no standing in court. It is apparent that the judge felt that one ground for dismissal Avas effective and sufficient.
On November 28, 1951, Berry made a motion for a rehearing of the motion to dismiss, shoAving by •exhibits and an affidavit by McGaffey that Berry had tendered its 1950 annual report for filing on March 12, 1951, hut that the commission had held it unfiled pending the receipt of certain supplemental information; that a letter from the commission to Berry, dated April 13, 1951, informing it that its report was being held unfiled until the requested information was supplied was never received by Berry; that Berry had no notice of the commission’s action until it Avas put on notice by a second letter from the commission, dated June 15, 1951; that the filing of the requested supplemental information was not mandatory but discretionary with Berry; that continued efforts had been carried out by Berry, through McCtafí'ey, to get the commission to accept its 1950 report in its original form; that in the interim it filed its 1951 annual report, but that the commission refused to accept the 1951 report until the 1950 report was accepted for filing; that it was only after the order of dismissal that Berry finally supplied the papers as ordered by the commission (though for reasons unconnected with this case), whereupon the reports and fees were accepted by the commission; that the trial court should have found an implied extension of time for filing the reports; and that in any event, even if there was no extension of time for filing that as a defunct corporation Berry had the right to institute and maintain suit for the protection and preservation of its property pursuant to the provisions of the statute, which allows a corporation, whose charter has become void, 3 years for winding up its affairs. Motion for rehearing was denied and Berry appeals. Its argument on appeal is the same as its argument for rehearing, except that it asks that if the dismissal is affirmed, it be without prejudice.
The judge below based his order of dismissal on CL 1948, § 450.87 (Stat Ann § 21.87), which provides:
“(1) If any corporation neglects or refuses to make and file the reports and/or pay any fees required by this act within the time herein specified, and shall continue in default for 10 days thereafter, unless the secretary of State shall for good cause shown extend the time for the filing of such report or the payment of such fee, as the case may be, as provided in section 91 of this act, and (2) if such corporation shall continue in default for 10 days after the expiration of such extension, its corporate • powers shall be suspended thereafter, until it shall file such report, and it stall not maintain any action or suit in any court of this State upon any contract entered into during the time of such default.”
However, Berry’s annual reports for both 1950 and 1951 were unaccepted for filing when tte instant action was commenced, and its powers were, therefore, governed by CL 1948, § 450.91 (Stat Ann § 21.-91), which provides that if a corporation fails to file its reports or pay its fees for 2 consecutive years, then:
“Tte charter of such corporation stall be absolutely void, without any judicial proceedings whatsoever, and such corporation stall be wound up in any manner provided by this act unless tte secretary of State stall for good cause' shown extend tte time for tte filing of such report or tte payment of such fee.”
Tte rights and powers of a corporation while it is in tte process of being wound up are defined by CL 1948, § 450.75 (Stat Ann § 21.75):
“All corporations whose charters stall have expired by limitation or dissolution or stall be annulled by forfeiture or in any otter way or manner have become void stall nevertheless continue to be bodies corporate for tte further term of 3 years from such expiration, dissolution or forfeiture for tte purpose of prosecuting and defending suits for or against them and of enabling them, gradually to settle and close their affairs and to dispose of and convey their property and to divide their assets; but not for the purpose of continuing tte business for which tte corporations were organized.”
We have previously held that a leasehold and option to renew is a property right which a corporation that is in tte process of being wound up can sue to protect. Kay Furniture Co. v. Rovin, 312 Mich 290. Consequently tte judge was in error in holding that' Berry had no standing in court. How ever, where the trial judge reaches the right result in deciding a case, we do not disturb the result attained even though a wrong reason was assigned. McNair v. State Highway Department, 305 Mich 181.
The instant action is based in large part upon Berry’s purported exercise of its option to renew its lease. At the time it attempted to exercise its option its corporate powers were suspended, and the statute (CL 1948, § 450.87, quoted supra) provides that it shall not maintain any action or suit in any court in this State upon any contract entered into during the time of such default. Berry claims that inasmuch as the report and privilege fees were sent to the commission, and later on were finally accepted, though after this action was begun and the dismissal was ordered, we should imply an extension of time for filing. The defect in the original report was that it showed a decrease in capital stock not borne out by the records already bn file with the commission. It was only after a certificate showing that the decrease came about by a “donation” to the corporation by shareholders and a return of the stock to its treasury that the reports became acceptable for filing. Berry was duly notified of its failure to file reports that accorded with the law, and of the effect of such failures, although it claims that it did not receive the first notice mailed to it. However, it did not comply with the subsequent notice from the commission, dated June 15, 1951, and later ones in which Berry was informed by the commissioner that the 1950 report had not been accepted for filing to date, and that the corporation “is not in good standing for the 1950 annual report has not been accepted.” Berry relies in large part upon L. J. Barry Goal Co. v. Houghten, 282 Mich 547, wherein we said that there must be a liberal construction of the law and that an innocent mistake in the report, where there has been a good faith attempt to comply with, the law, will not result in suspension. While we have been very liberal in our construction of the statute, so as to give corporations the fullest opportunity to furnish information and records, and have been slow to apply the penalties of the law where the corporation makes an honest attempt to comply with the statute, this is not a case where Berry was deified the fullest opportunity to amplify and correct the reports. Further, Berry made no attempt whatsoever to file its 1950 report until long after it was due. Cf, Newburgh Steel Co. v. Auto Steel Co., 288 Mich 156.
The further view that we take of the case is that the action should have been dismissed as to all of the allegations, except those relating to the alleged removal or destruction of Berry’s property, for the reason that the judgment of the circuit court commissioner was res judicata as to the rights to possession of the premises. We have held that a collateral attack may not be made upon a judgment which is complete and regular on its face by attacking the jurisdiction of the court which rendered it by attacking the officer’s return of process. The return by an officer of service of process is conclusive in any collateral proceeding upon the parties to the suit in which the process issued and of the issuance of which the parties had full knowledge. Michels v. Stork, 52 Mich 260; Clabaugh v. Wayne Circuit Judge, 228 Mich 207. It was admitted at the hearing* on the motion that the officer’s return showed that service was made on Berry by serving McGaffey as an officer of the corporation. Valid service on a corporation may be made by serving any officer, director, trustee or agent thereof. CL 1948, § 613.29 (Stat Ann § 27.759). Therefore the officer’s return shows what purports to be valid service upon Berry. In absence of further facts, we do not decide whether if Berry had promptly made motion to quash service, or had made some other direct attack on the judgment it would or would not have been entitled to have the service quashed or the judgment vacated. But a party which desires to contest a court’s jurisdiction over itself cannot lie back and delay taking some action to that end, permit the court and other parties to rely on the record, and at an unseasonably later time make a collateral attack on the validity ■of the service, of which it had complete knowledge from the date of such service. It is obvious from a reading of the record that McG-affey was intimately associated and connected with Berry. He represented it in the earlier equity suit brought by McDonnell and he carried out all of its negotiations with the commission. Also, Berry must have known of the proceedings taken before the circuit court commissioner not later than August 23, 1951, since it alleges that it was forced to surrender possession of the premises. No attack on the judgment seems to have been made until the hearing on McDonnell’s motion to dismiss in the instant case. The question of the effect of the circuit court commissioner’s judgment was fully argued below, although not passed on by the judge, and it was again presented to this Court in McDonnell’s brief and referred to in Berry’s brief. Berry is not taken unawares. That the judgment of restitution is res judicata and became determinative of the parties’ rights may by amendment be added as an additional ground for dismissal. It was so considered and argued in the trial court.
The order of dismissal is affirmed, except as to allegation in trespass on the case in which it is claimed that McDonnell destroyed or removed certain of Berry’s property. The case is remanded for trial on this one issue alone. No costs, as"-neither party has prevailed in full. ■ ■
Dethmers, C. J., and Adams, Carr, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred.' ■ | [
50,
25,
8,
0,
9,
-43,
48,
-34,
12,
-10,
-14,
-7,
4,
5,
39,
-2,
56,
5,
20,
-14,
22,
1,
0,
-1,
46,
-17,
16,
-39,
6,
12,
-7,
-33,
-27,
-24,
-28,
41,
66,
-22,
28,
-16,
-15,
24,
-23,
3,
20,
-21,
4,
-32,
58,
-17,
-40,
19,
5,
9,
47,
-25,
-4,
34,
-25,
36,
-9,
34,
-3,
8,
27,
41,
42,
41,
2,
-38,
12,
-8,
9,
0,
0,
-57,
27,
15,
-12,
-20,
24,
-50,
18,
-32,
-13,
16,
40,
-33,
-4,
-30,
-36,
24,
-32,
21,
-13,
6,
-80,
13,
0,
-12,
-36,
-23,
8,
41,
24,
5,
-7,
-54,
-19,
30,
-20,
-13,
78,
44,
19,
-1,
19,
-12,
8,
-19,
27,
-12,
-14,
-51,
0,
-14,
-8,
13,
-41,
-14,
63,
8,
2,
-35,
0,
0,
15,
-2,
-30,
31,
33,
0,
-11,
7,
46,
14,
17,
-42,
2,
-7,
18,
17,
-18,
38,
1,
2,
6,
43,
-25,
-12,
60,
-18,
24,
-30,
9,
-14,
-35,
28,
1,
28,
-29,
-12,
5,
-46,
-7,
-4,
43,
35,
-35,
7,
-65,
-49,
-10,
-4,
-9,
-22,
43,
13,
34,
4,
31,
-19,
-9,
31,
-35,
21,
14,
1,
-18,
11,
-29,
-31,
8,
-54,
-4,
-22,
30,
27,
58,
49,
-41,
-39,
11,
7,
-23,
-33,
51,
2,
75,
6,
-17,
-31,
-33,
20,
-17,
-43,
-29,
-37,
28,
2,
-13,
22,
25,
51,
-2,
23,
13,
7,
17,
-7,
-26,
42,
-64,
12,
-7,
22,
-79,
-3,
16,
-24,
-9,
15,
-81,
41,
5,
-48,
-55,
-21,
44,
-41,
-12,
33,
-21,
27,
-5,
-15,
-24,
34,
-26,
48,
-15,
14,
-29,
-48,
-28,
-6,
-2,
-25,
-2,
-70,
0,
-7,
0,
13,
-6,
4,
37,
1,
-77,
17,
-6,
23,
-52,
-22,
2,
-27,
-42,
4,
-14,
55,
-11,
38,
-12,
-11,
6,
7,
-35,
7,
50,
4,
-10,
2,
30,
-46,
54,
-15,
49,
44,
21,
-14,
28,
38,
27,
29,
32,
-8,
61,
-1,
-27,
-34,
40,
-37,
-21,
58,
-35,
11,
-5,
12,
5,
15,
37,
63,
27,
15,
34,
32,
2,
-5,
-31,
10,
-11,
-15,
-18,
17,
12,
10,
1,
30,
-26,
26,
18,
-20,
-5,
15,
-34,
-31,
-52,
10,
27,
47,
21,
20,
-63,
12,
-22,
-12,
-9,
-40,
-46,
51,
49,
-34,
-18,
-29,
53,
-41,
-10,
-65,
-24,
-25,
-68,
-18,
-8,
-3,
24,
-32,
23,
30,
-47,
5,
21,
5,
-59,
-8,
16,
-40,
-7,
6,
33,
10,
-32,
-6,
8,
24,
-73,
9,
3,
-7,
15,
19,
8,
57,
-13,
-31,
-2,
0,
24,
14,
-41,
43,
0,
25,
-12,
-3,
-7,
15,
-80,
-57,
-46,
15,
26,
25,
-56,
-1,
8,
18,
-27,
0,
28,
40,
-11,
-1,
-10,
0,
-27,
17,
61,
0,
13,
7,
39,
-49,
-4,
50,
-34,
-31,
15,
-1,
-30,
38,
-61,
2,
30,
-24,
-13,
-7,
7,
0,
-19,
6,
5,
33,
8,
49,
-35,
-20,
-12,
-71,
-18,
52,
31,
15,
-36,
17,
-23,
0,
-11,
-21,
-17,
54,
-16,
-25,
14,
-4,
28,
-48,
-6,
-40,
8,
35,
-81,
-42,
21,
45,
-10,
-8,
-19,
16,
19,
28,
15,
2,
-46,
16,
-47,
41,
39,
-10,
3,
19,
-8,
-44,
21,
-36,
16,
-43,
-8,
18,
-27,
5,
23,
1,
0,
62,
-53,
-6,
-55,
-1,
-13,
-3,
-9,
-62,
-37,
31,
-26,
8,
-29,
15,
0,
34,
23,
24,
36,
-8,
35,
-2,
-39,
47,
-23,
43,
-31,
18,
65,
3,
10,
-6,
2,
5,
-5,
-22,
-21,
37,
13,
-17,
15,
20,
40,
31,
-3,
-6,
7,
1,
-5,
-62,
67,
-28,
12,
49,
8,
10,
-9,
-38,
-12,
-49,
-37,
-8,
27,
-3,
-19,
-31,
6,
15,
-21,
0,
-11,
-28,
22,
-48,
38,
34,
-30,
29,
0,
12,
1,
32,
48,
-16,
-16,
29,
-22,
-34,
-4,
-17,
30,
-13,
40,
-6,
-31,
-60,
-1,
-49,
8,
8,
2,
-18,
-7,
-45,
15,
11,
-37,
-17,
93,
31,
-18,
-71,
26,
-40,
41,
-67,
32,
12,
-35,
-31,
-10,
-40,
-14,
-46,
34,
16,
18,
13,
6,
-8,
26,
-7,
1,
-33,
45,
-9,
20,
13,
-14,
15,
4,
-2,
-3,
-59,
-5,
-21,
-24,
-42,
-13,
-8,
-12,
28,
32,
-14,
41,
45,
-27,
1,
83,
23,
-66,
45,
-39,
-13,
-36,
10,
30,
-53,
9,
0,
16,
12,
31,
-3,
15,
10,
-22,
4,
-37,
-36,
11,
5,
-22,
-70,
-36,
-4,
18,
7,
8,
-27,
7,
-29,
27,
-10,
-48,
26,
17,
0,
-19,
-3,
-11,
-37,
20,
54,
-60,
34,
7,
-32,
0,
34,
29,
-18,
-4,
31,
-37,
-6,
-14,
-6,
-4,
25,
0,
26,
9,
-43,
35,
-20,
-56,
17,
-8,
-8,
-11,
6,
13,
16,
5,
6,
-24,
-5,
-12,
-35,
-52,
-51,
45,
18,
42,
44,
-43,
-49,
26,
-51,
-68,
33,
22,
33,
-8,
-29,
22,
21,
-6,
50,
-22,
-7,
-18,
-33,
9,
22,
-28,
-4,
-20,
3,
8,
45,
-48,
6,
-2,
11,
-33,
-18,
-33,
23,
-12,
-9,
-33,
12,
33,
35,
9,
-50,
36,
3,
8,
8,
-5,
-22,
21,
-13,
-29,
-81,
-7,
9,
-63,
8,
-9,
-28,
-26,
-20,
2,
-19,
-69,
32,
-15,
4,
19,
-18,
0,
-12,
29,
0,
15,
22,
-39,
16,
11,
-23,
50,
28,
29,
4,
11,
44,
30,
9,
32,
-77,
28,
-68,
-1,
21,
-4,
-24,
9,
85,
-10,
-3,
-14,
46,
23,
39,
-13,
18,
19,
-30,
36,
0,
-8,
-33,
6,
-4,
11,
14,
-24,
25,
11,
3,
-7,
-9,
-3,
-12,
-19,
-42,
-50,
12,
-42,
9,
25,
-26,
22,
-38,
-32,
-5,
12,
4,
-2,
24,
-34,
25,
42,
47,
41,
18,
29,
-2,
31,
-34,
42,
-16,
-25,
22,
-2,
-8,
-7,
-4,
28,
1,
64,
2,
-21,
18,
21,
35,
13,
38,
1,
-1,
-15,
-40,
-28,
-2,
9,
-44,
80,
42,
-2,
27,
-24,
-44,
-13,
-11,
-10,
6,
12,
24,
-33,
54,
39,
22,
21,
-71,
-68,
52,
17,
-4,
27,
-1,
-60,
57,
70,
-16,
0,
24,
1,
-10,
42,
9,
13,
-24,
5,
-6,
-9,
29,
3,
-42,
36,
12,
-19,
49,
-19,
34,
-33,
-5,
-21,
52,
-64,
16,
-8,
20,
19,
13,
-3,
17
] |
Boyles, J.
Defendant appeals from a decree granting a divorce to the plaintiff Harold I. Alderink. iHer first and principal claim for reversal is that the (testimony does not establish extreme and repeated cruelty alleged as the ground for granting a divorce.
These parties were married in 1925, and lived and cohabited together until about September 1, 1951, although she has continued to live with the plaintiff in their home, at least up to the time the decree was entered in February, 1952. In 1949 she was adjudged insane by the probate court, and confined in the State hospital at Traverse City until March, 1951, when she was returned home. Plaintiff filed his bill of complaint for divorce in September, 1951.
Two children were born of the marriage—Harold, now about 25 years of age, and Beverly Jean, now about 15, who lives with her parents on an 80-acre farm owned by plaintiff in Ionia county. Five witnesses were sworn and testified on behalf of the plaintiff, namely, their 2 children, the plaintiff and his sister, and a neighbor woman. The plaintiff was withdrawn by his counsel as a witness, on objection that his testimony was equally within the knowledge of the defendant who was still under disability, having been adjudged insane in 1949 and not restored to sanity. Plaintiff’s sister, Anna Meyers, testified from personal knowledge prior to 1949, as follows:
“Q. Now, the plaintiff in this case states that prior to 1949 the defendant neglected and refused to take care of the housework so that it was necessary for him and his daughter to do the work?
“A. Yes.
“Q. Do you know about that?
“A. Yes.
“Q. What do you know about it?
“A. Well, she just didn’t do her work and she would go to bed and stay in bed.
“Q. What would you say as to her disposition for being ambitious?
“A. She sure wasn’t ambitious.
“Q. During- that time do you know whether she was eating 3 meals a day and healthy and had the appearance of being healthy?
. “A. Yes, she had the appearance of being healthy.
“Q. During those years did you notice anything that wasn’t normal in relation to her talk and actions ?
“A. No, I didn’t see anything out of the way.
“Q. Do you know he charges in here that she was of a jealous disposition. Do you know about that?
“A. Yes.
“Q. Just tell the court what you know about that?
“A. It was hard for him to get help. They wouldn’t stay, and she said he did more for them than for her. * * *
“Q. * * * Did he have a hired girl there for awhile?
“A. Yes.
“Q. Do you know of your own knowledge why she left? * * •
“A. Well, no, not actually.
“Q. You don’t actually know why she left?
“A. No.
“Q. But you know she did leave ?
“A. Yes.
“Q. Did he have different hired girls?
“A. Yes.
■ “Q. How many did he have, if you know, through the years there?
“A. Well, 6 including myself. Six I know of.
“Q. How long did they stay usually?
“A. Well, not too long.
“Q. Do you know why they left?
“A. No, not only just that 1 case.
“Q. What one case? Tell the court about the 1 case you know.
“A. Just her jealous disposition, I guess. * * *
“Q. How long were you working in the home?
“A. I have worked there not steady, just off and on.
“Q. How long would you say you worked there at any time? Different years was it?
“A. Yes.
“Q. "Was her conduct with relation to being, I think you said ‘lazy’ and not taking care of the housework in the later years, was it the same during the time you were there ?
“A. Yes, it was the same.
“Q. It didn’t change any?
“A. No.
“Q. Did she at any time display any temper while you were there?
“A. Yes.
“Q. How frequently?
“A. When something come up that didn’t suit her.
“Q. Was that with relation to her husband, the plaintiff ?
“A. Yes, her husband and children.”
On cross-examination:
“I am the sister of Harold Alderink, the plaintiff in this case.
“Q. You stated you lived in their home for a considerable period?
“A. Just off and on, not steady.
“Q. You were in school at the time?
“A. Part of the time.
“Q. You finished school while you lived with the Alderinks ?
“A. The last couple, 3 months.
“Q. They kind of took care of you during the last few years of school ?
“A. Just stayed there so I would have a place' to stay.
“Q. When did you finish school?
“A. 1935.
“Q. You have been in the home since?
“A. Yes.
“Q. Howmanytim.es?
“A. Off and on different times. * * *
“Q. Can you give an idea, just your rough idea?
“A. I have been there and stayed a week at a time.
“Q. When was the last time you stayed there?
“A. The last was when Beverly was a baby.' I stayed there 15 years ago.
“Q. You haven’t been there much since?
“A. Yes, I was. I was there off and on until she-was 5 or 6 years old.
“Q. So in other words, it has been at least 10 years since you stayed there?
“A. Yes.
“Q. So everything you testified to were things that occurred 10 to 15 years ago?
“A. Yes.
“Q. Actually do you know Mrs. Alderink had a very difficult time when Beverly was born?
“A. Not any more than anybody else.
“Q. She had been confined to bed for quite sometime after the birth?
“A. They just couldn’t get her out.
“Q. She was in bed all that time?
“A. Yes.
“Q. Do you know whether or not the birth was a. Caesarean section ?
“A. Yes, it was.”
Alice Deweerd, a neighbor, testified:
“I am acquainted with Harold and Pearl Alderink.. I have known them for 10 or 11 years. I am a neighbor of theirs. I live on a neighboring farm. * * * I have been in their home prior to 1949.
“Q. Did you hear the previous witness [Anna. Meyers] on the stand?
“A. Most of it.
“Q. Did you hear the facts she testified to?
“A. Yes.
“Q. Are you familiar with all those facts?
“A. No. Not all of them. I didn’t know that he had these girls or ladies working for them in the home.
“Q. What is that?
“A. I didn’t know that he had all these ladies working for them in the home.
“Q. Are you familiar with the facts that she testified to with relation to Mrs. Alderink’s actions ?
“A. Yes.
“Q. Are they substantially true, as she' testified?
“A. Yes. About that jealousy, I didn’t know about.
“Q. With the exception of the jealousy?
“A. Yes.
“Q. But you did know about the other facts she testified to and you would say they were substántially correct?
“A. Yes.
“Q. How long back have you lived there?
“A. About 10 years. I did know Mrs. Alderink at the time Beverly was born. I do not know how often I have been in the home. I never stayed there overnight. I just visited. I used to help with the dishes because Mrs. Alderink didn’t do them. She wasn’t confined to bed. She would lay down on the davenport. I don’t know whether she was sick or not. The doctor couldn’t find anything wrong. At least she lay down and didn’t get up.”
Bruce, their son, testified:
“I am the son of Harold and Pearl Alderink and am 24 years old. I lived on the farm of my mother and father until I went into the Navy when I was 18 in 1945. I was in the Navy 1 year. I go back and forth to the farm at the present time.
“Q. Now, prior to 1949 were you familiar with who was taking care of the house? You were in your father’s home at that time?
“A. Yes.
“Q. And who was doing the housework?
“A. My father and sister and I. "We all had to do some of it.
“Q. Do you know why your mother wasn’t doing it?
“A. No. * * *
“Q. Did you ever hear any discussion between your father and mother as to why she wasn’t doing it?
“A. Well, he has asked her and she would say she was sick but we would have doctors there and they couldn’t find anything wrong with her. * * *
“Q. During that time was she eating her meals regularly?
“A. Yes.
“Q. But you say she didn’t do the housework?
“A. Very little.
“Q. Your father states here in the bill of complaint that she had a temper and would swear at him and call him names and on several occasions struck him?
“A. Yes, she would get into a rage over a little of nothing.
“Q. Over nothing?
“A. Practically.
“Q. How often would that happen?
“A. Oh, every few days.
“Q. Do you recall whether or not your father had to hire girls at any time in the home ?
“A. Yes.
“Q. To do your work?
“A. Yes.
“Q. Did any of them stay very long at a time ?
“A. No, none of them stayed. Probably none of them stayed 6 months or more.
“Q. What was the situation while they were there to your knowledge?
“A. Well, I don’t know. If they didn’t do things just right she would go into a rage and they would quit. * * * •
“Q. Over what period of time prior to 1947 would you say this condition existed?
“A. Ten years anyway.
“Q. Now, during that time, outside of the things you have testified to, did she talk and act normally?
“A. Yes.
“Q. You didn’t see anything abnormal other than these things here?
“A. She would say she was sick or something like that. I am 24 years old and I lived on the farm until I was 18. I was also there about 6 months after I got out of the Navy. I remember when my sister was born.
“Q. Your mother acted kind of poorly after that, didn’t she ?
“A. Yes.
“Q. Ever after that?
“A. Yes.
“Q. Stayed in bed most of the time ?
“A. She did a lot.
“Q. Had the doctor quite a bit?
“A. Well, yes, quite often after my sister was born.
“Q. She was a sick woman, wasn’t she? * * *
“A. She claimed she was sick but the doctors couldn’t find nothing seriously wrong with her.
“Q. She was in bed most of the time?
“A. Well, yes most of the time.
“Q. Were you with your father and mother in 1949?
“A. No, I was living in Grand Rapids.
“Q. Did you come to the farm frequently on week ends?
“A. Yes.
“Q. About that time somebody filed a petition in probate court to have her adjudged an insane person?
“A. I heard of it. I don’t know actually. * * *
“Q. Do you know your mother went to Traverse City?
“A. Yes.
“Q. To the institution up there ?
“A. Yes.
“Q. Did you ever go to visit her?
“A. Yes.
“Q. Have you been to visit her since she came back ?
“A. Yes. * * *
“Q. Do you love her?
“A. Yes, although she doesn’t act like a mother.
“Q. What do you mean ‘she doesn’t act like a mother’ ?
“A. She acts more like a child in her actions.
“Q. She has acted more like a child for several years ?
“A. Particularly since 1949.
“Q. Before 1949?
“A. Well, she was very temperamental.
“Q. You don’t feel she treated you like a son should be treated ?
“A. No, not fully. * *
“Q. You testified on direct examination that you have seen your mother beat your father?
“A. Yes, she would fly right into him in a rage.
“Q. Your mother is quite a bit smaller than your father?
“A. Yes.
“Q. Has been confined to bed most of the last 10 years ?
“A. On her account. She wasn’t confined by a doctor.
“Q. She was in bed?
“A. Yes.”
The daughter Beverly testified:
“I have always lived at home.
“Q. Prior to 1949 your father charges that your mother neglected and refused to take care of the household duties. What can you tell the court about that?
“A. She didn’t want to do much work. She just always wanted somebody else to do it for her.
“Q. Did you. ever take care of the household?
“A. Yes.
“Q. Did your father?
“A. Yes.
“Q. For how long prior to 1949 did you and your father take care of the household duties?
“A. About the last 3 years we have done what you would call most all of it.
“Q. Did your mother ever display a temper toward your father?
“A. Yes.
“Q. On numerous occasions?
“A. Yes.
“Q. How did she display her temper?
“A. Well, if he didn’t do just so it suited her shn didn’t like it.
“Q. Whether or not she would swear at him and call him names?
“A. Yes.
“Q. On how many different occasions have you heard her do that?
“A. Quite a few.
“Q. Did you ever see her strike him?
“A. Yes, I have.
“Q. On how many different occasions?
“A. Not too many but some.”
The defendant’s mother testified as follows:
“I am Pearl Alderink’s mother. I know Harold Alderink, the plaintiff. I have been in the home of’ both parties frequently. I frequently take care of Pearl. I have helped the whole family week in and week out a good many times and never got a thank-you from him. I took care of Beverly a good deal when she was a little girl. I noticed a change in my daughter Pearl after Beverly’s birth. She wasn’t very well in the first place and she was real bad after Beverly’s birth for quite a long time. Pearl has confided in me a good many times.
“Q. Will you tell us what she said relative to her ability to get around?
“A. She just said she couldn’t and he drove her to do things she couldn’t do. He made her pick up the baby when it was 10 days old until it broke the incision open carrying the baby. If you can get that it is better than I can.
“Q. Tour daughter, Pearl Alderink, hasn’t been, as far as you know, capable of getting around very actively since the birth of the baby ?
“A. No, she hasn’t.”
The testimony has been quoted at length, insofar as it bears on plaintiff’s claim of extreme and repeated cruelty toward the plaintiff by the defendant. It refers to actions and conditions subsequent to the birth of the daughter, about 15 years ago, by Caesarean section, and prior to the time when the defendant was committed to the State hospital in 1949. We are impelled to the conclusion that it does not prove that the defendant was guilty of extreme and repeated cruelty toward the plaintiff. Nor does it indicate that anything in the appearance or the testimony of these witnesses would place the trial judge in a better position than this Court to judge their credibility. Their credibility is not in issue. We hear the case ele novo, based on the record, and are constrained to conclude that plaintiff’s allegations that the defendant has been guilty of extreme and repeated cruelty toward him are not proven in the record, under the circumstances of the case.
The decree is set aside and the case is remanded for entry of an order dismissing the bill of complaint, with costs.
Dethmers, C. J., and Adams, Butzel, Carr, Bushnell, Sharpe, and Reid, JJ., concurred.
See CL 1948, § 617.65 (Stat Ann § 27.914).-Reporter. | [
2,
-7,
-6,
18,
-58,
-31,
-7,
45,
-29,
-25,
-45,
-39,
5,
8,
-8,
-56,
-30,
-14,
-11,
-12,
-2,
6,
-5,
61,
43,
-4,
2,
-12,
-16,
-24,
20,
11,
-63,
-25,
33,
-25,
18,
-9,
22,
24,
-20,
-19,
17,
-14,
-48,
32,
-3,
0,
-24,
19,
-17,
-62,
30,
5,
22,
-15,
31,
81,
-10,
-15,
24,
29,
-24,
-14,
27,
46,
23,
8,
-45,
-60,
-20,
-53,
-16,
-2,
-23,
-36,
20,
56,
-20,
0,
31,
-33,
16,
28,
-24,
31,
2,
15,
-20,
47,
-7,
22,
-18,
-13,
9,
-17,
20,
-2,
66,
26,
-32,
0,
30,
51,
-14,
58,
-2,
39,
-31,
24,
35,
-37,
51,
51,
0,
-8,
-42,
-66,
-47,
-5,
2,
26,
24,
-24,
64,
11,
-21,
-5,
28,
-7,
-17,
21,
71,
-15,
-9,
-31,
-13,
-70,
-61,
-67,
13,
3,
32,
3,
19,
35,
-45,
-24,
23,
0,
-50,
-34,
38,
34,
19,
-20,
4,
-25,
-19,
-1,
65,
1,
-26,
-32,
0,
-51,
6,
60,
0,
-49,
31,
18,
-47,
-6,
-2,
-1,
-11,
15,
-49,
51,
-12,
14,
39,
-39,
-20,
-22,
-7,
-19,
-65,
7,
-41,
10,
56,
-21,
16,
24,
20,
67,
14,
16,
33,
8,
-10,
11,
28,
-19,
-18,
7,
-15,
-9,
1,
26,
-3,
-17,
1,
-8,
3,
-12,
-52,
18,
30,
-11,
27,
-10,
-33,
-23,
11,
-2,
29,
-11,
-13,
19,
10,
-11,
-37,
-32,
14,
12,
37,
-13,
-20,
-36,
41,
13,
-12,
28,
-48,
-33,
0,
23,
3,
2,
-44,
-2,
-36,
-39,
12,
-1,
53,
-2,
8,
-9,
7,
19,
-24,
20,
-7,
26,
-4,
-20,
16,
-8,
48,
-40,
-19,
-17,
-43,
23,
8,
29,
47,
6,
30,
-8,
21,
11,
-18,
26,
5,
46,
49,
-57,
-46,
-55,
63,
-27,
-73,
-47,
-37,
15,
-26,
-18,
11,
-29,
14,
-37,
-16,
-12,
15,
-7,
52,
0,
28,
-12,
50,
-25,
-60,
-22,
-10,
-1,
-2,
-17,
-33,
-3,
4,
-9,
-35,
-6,
-18,
38,
-37,
60,
13,
24,
35,
-26,
-54,
-15,
3,
-15,
22,
1,
-13,
29,
-7,
32,
26,
-9,
41,
-26,
-3,
-20,
31,
-8,
-44,
-38,
34,
-66,
-39,
-31,
-6,
14,
-7,
-11,
-47,
32,
38,
-73,
54,
48,
2,
8,
5,
-15,
19,
-11,
-3,
19,
-2,
-10,
7,
16,
-7,
24,
13,
26,
-11,
-23,
-19,
-4,
-27,
-1,
10,
-10,
20,
15,
-14,
-9,
-25,
-43,
-16,
0,
-6,
27,
35,
0,
-28,
-9,
-9,
19,
40,
-13,
44,
40,
71,
-26,
52,
-2,
17,
16,
16,
52,
15,
-22,
13,
0,
7,
-33,
48,
13,
15,
37,
10,
14,
71,
-40,
-29,
21,
-11,
12,
-9,
50,
25,
10,
-6,
-4,
9,
-37,
49,
9,
-27,
12,
14,
9,
-27,
-29,
24,
16,
-5,
-75,
-1,
-18,
22,
-10,
32,
-13,
-21,
13,
1,
-2,
66,
-3,
35,
20,
24,
28,
41,
15,
-22,
-72,
-1,
-24,
-27,
13,
12,
45,
8,
-45,
-15,
-4,
-2,
0,
-27,
15,
-33,
-38,
-20,
17,
-48,
-5,
-7,
-15,
73,
-9,
36,
-21,
19,
3,
44,
34,
-26,
-41,
41,
6,
-18,
-37,
37,
-36,
12,
29,
-6,
15,
2,
-56,
28,
-2,
33,
-12,
-15,
5,
-23,
46,
-9,
-39,
32,
-19,
-15,
-1,
-15,
-2,
9,
13,
2,
-36,
2,
-4,
-42,
-19,
-22,
15,
12,
-49,
-30,
2,
31,
-7,
-46,
38,
-11,
-34,
48,
-18,
11,
-13,
-8,
-23,
-18,
15,
-6,
-15,
3,
2,
1,
-16,
-22,
17,
-7,
2,
-35,
20,
-7,
9,
-34,
-10,
22,
14,
43,
21,
17,
-37,
-27,
-6,
-3,
-4,
-11,
-80,
-11,
-2,
17,
38,
3,
5,
-35,
-19,
-33,
-8,
22,
-16,
2,
-15,
42,
3,
-37,
-36,
-12,
12,
-5,
-52,
-33,
-26,
8,
32,
16,
-18,
-33,
-1,
-10,
54,
-43,
8,
-4,
-17,
32,
36,
14,
35,
22,
25,
-22,
-10,
36,
50,
-61,
6,
12,
-9,
32,
-47,
-16,
-30,
-12,
51,
-47,
-28,
24,
8,
34,
-44,
-4,
-9,
-7,
4,
-11,
-10,
29,
21,
8,
20,
-50,
8,
8,
20,
-1,
48,
-30,
4,
-33,
37,
29,
10,
-21,
-28,
-3,
8,
22,
7,
15,
53,
-15,
17,
-29,
-16,
18,
24,
-61,
18,
-10,
44,
17,
7,
-18,
48,
-12,
-16,
-9,
5,
25,
-23,
-7,
-6,
-60,
29,
3,
-12,
-30,
17,
43,
-51,
23,
10,
-20,
-13,
-34,
-5,
9,
0,
30,
-12,
24,
-30,
17,
28,
-30,
36,
-36,
14,
-12,
15,
-28,
21,
12,
9,
-44,
38,
0,
-21,
22,
-34,
26,
14,
25,
40,
-11,
-1,
31,
-8,
52,
-41,
-33,
8,
10,
6,
-78,
-28,
-64,
-10,
17,
-25,
-1,
-11,
-61,
25,
-17,
-33,
-18,
-20,
-18,
10,
54,
-65,
-42,
-4,
-28,
-6,
20,
19,
48,
-1,
39,
18,
-48,
-51,
-41,
13,
19,
19,
-14,
-36,
-25,
9,
27,
12,
-2,
-5,
-26,
14,
-48,
-10,
-24,
35,
21,
40,
-14,
9,
-52,
-1,
-17,
-11,
-6,
0,
74,
-19,
0,
36,
2,
-44,
1,
22,
-9,
-10,
3,
-37,
32,
10,
10,
-1,
57,
32,
-29,
-15,
44,
-8,
4,
-7,
34,
30,
94,
-16,
8,
22,
35,
-65,
-17,
85,
-3,
-50,
-4,
49,
19,
27,
-15,
-18,
-22,
-5,
-2,
17,
1,
-42,
39,
-33,
-35,
-65,
-39,
18,
17,
38,
16,
-21,
9,
-10,
16,
-39,
1,
9,
4,
-9,
58,
31,
-60,
1,
-8,
24,
49,
12,
-58,
-10,
-44,
-3,
-36,
-13,
-23,
-35,
-3,
19,
37,
-30,
-22,
34,
36,
-1,
-15,
14,
5,
-32,
54,
2,
-14,
30,
22,
-41,
-26,
-26,
9,
-5,
2,
-21,
-10,
15,
-44,
39,
6,
-30,
-28,
-74,
52,
17,
10,
12,
60,
-3,
5,
38,
-65,
7,
11,
12,
18,
8,
-40,
30,
1,
11,
48,
43,
20,
67,
-2,
-54,
-41,
34,
-17,
3,
13,
52,
3,
-32,
29,
23,
0,
-19,
-21,
-42,
-28,
-28,
-17,
-10,
12,
39,
45,
-19,
10,
-4,
-43,
30,
-36,
-30,
-25,
0,
-68,
-24,
7,
-17,
44,
64,
26,
3,
-12,
-22,
-10,
-4,
-16,
-19,
22,
28,
48,
-20,
4,
20,
-17,
5,
10,
-20,
0,
-10,
13,
18,
-3,
-35,
32,
4,
11,
-13,
20,
-4
] |
Reid, J.
Plaintiff, a residential builder living in Michigan, brought this action at law to recover the balance due him from defendant for labor and materials furnished defendant under a contract for the alteration of defendant’s dwelling house in Grosse Pointe, in Wayne county. The court granted defendant’s motion to dismiss because the declaration did not allege that plaintiff had a residential builder’s license, which allegation is required by section 19 of the act hereinafter referred to. Plaintiff appeals.
Involved in this appeal is the validity of PA 1939, No 311, as amended by PA 1945, No 315. Not brought into critical discussion are amendments of the act in question by PA 1951, No 49, which act of 1951 went into effect after plaintiff’s cause of action arose and the instant suit had been begun.
Sections 3, 4 (in part) and 20 of the act in question (CL 1948, §§ 338.703, 338.704, 338.720 [Stat Ann 1949 Cum Supp §§ 18.85 (3), 18.85 (4) and 18.85 (20) ]) are as follows:
“Sec. 3. On and after the first day of May, 1945, which shall be the effective date of this act, it shall be unlawful for any person to engage in the business of or to act in the capacity of a residential builder and/or a residential maintenance and alteration contractor in any county within this State now having or which hereafter may attain a total population of over 250,000 inhabitants without having a license therefor, as herein provided, unless such person is particularly exempted as provided in this act.
“Sec. 4. This act shall not apply to * * *
“(c) Trustees of an express trust or officers of a court providing they are acting within the terms of their trust or office respectively; * * *
“(g) This act shall not apply to any work or operation performed by or for any bank, trust company, building and loan association, or savings and loan association on any property to which they hold title or have an equitable title or in which they have a financial interest. * * *
“Sec. 20. On the effective date of this act it shall be the duty of the secretary of State to certify to the commission the counties which have a population in excess of 250,000 inhabitants on such date. Whenever any county shall hereafter attain a population in excess of 250,000 inhabitants, it shall be the duty of the secretary of State to certify that fact, at the request of any inhabitant of such county, and after the lapse of 90 days from the date of' any such certification, the provisions of this act shall become applicable within any such county: Provided, That in counties with a population of less than 250,000 the provisions of this act shall become effective when the board of supervisors of the county shall by a 3/5 vote elect to come within the provisions of this act.”
Plaintiff claims the act unconstitutional and void because by its own terms it restricts its application to counties of 250,000 inhabitants, being applicable (in 1945) only to Wayne and 3 other counties.
Cited in the briefs are Attorney General, ex rel. Dingeman, v. Lacy, 180 Mich 329, and Mulloy v. Wayne County Board of Supervisors, 246 Mich 632.
Section 20 makes inapplicable to the instant case much of the reasoning we adopted in the Mulloy Case (especially the words hereinbelow italicized). "We quote from pages 639, 640 of the Mulloy Case as follows:
“The wording of the title and of section 1 alone might not be sufficient to necessitate a holding that the act could not be made applicable to any county other than "Wayne, and is, therefore, a local act; but we are of the opinion that the act as a whole is so framed that it cannot be made applicable to other counties as they acquire a population of 300,000 or more; and that by its very terms it is made clear it was not intended the act should be put in force in such other counties. No provision is made in the act for so doing. No other conclusion can be reached than that it is local legislation applicable to Wayne county only. The act contains no provision for a referendum, and it has not been submitted to a vote in Wayne county. It violates section 30, article 5, of the Constitution, and must be held invalid.” (Italics supplied.)
Attorney General, ex rel. Dingeman, v. Lacy, supra, was a case involving the validity of PA 1913, No 186, creating a domestic relations court in counties of upwards of 250,000 population, in which case we held (page 338) that the domestic relations court was a new or “other” court within the meaning of article 7, § 1 of the State Constitution, and that to be valid it must be established by “general law.” We further found (page 341) that the classification by population in that case was “a manifest subterfuge.” Our reasons in that case for finding the domestic relations court act invalid do not apply, for the most part, to the act in question in the instant case.
Moreover, we have to a material degree departed from the reasoning in the Mulloy Case and the At torney General, ex rel. Dingeman, v. Lacy Case, in respect to restrictions in statutes of applicability to counties of a designated total of population. We are more inclined to uphold the act where there is a reasonable relationship between the restriction and the population. See Hayes v. Auditor General, 184 Mich 39; Kates v. Reading, 254 Mich 158; Chamski v. Wayne County Board of Auditors, 288 Mich 238; and Tribbett v. Village of Marcellus, 294 Mich 607.
We find the act in question in this case to be not a local or special act. In view of the provisions of section 20 of the act, above quoted, we consider that the act in question does not contravene article 5, § 30 of our State Constitution, which is in part as follows:
“The legislature shall pass no local or special act in any case where a general act can be made applicable, and whether a general act can be made applicable shall be a judicial question.”
Under the act, a residential builder is required to pay $25 for a license good for 3 years; a residential maintenance and alteration contractor, $15 license fee good for 3 years.. There are requirements in the act as to residence, examination, et cetera, of licensees.
Plaintiff claims that the act in question, in the instant case, discriminates against certain natural persons and in favor of trustees, banks, trust companies and certain other financial associations holding title to or equitable liens upon lands.
The principle concerning unjust discrimination contended for by plaintiff has been considered in other States.
“That part of the act of April 21, 1896, entitled 'An act to promote the public health and regulate the sanitary construction of house drainage and plumbing,’ which requires any plumber, whether master or employing plumber or journeyman, before engaging in tbe business, to undergo an examination as to fitness, and obtain a license, but permits all members of a firm to pursue the business where one only has procured such license, and all members of a corporation to pursue it where the manager only has procured such license, does not operate equally upon all of a class pursuing the calling under like circumstances, and is invalid.” State v. Gardner (Syllabus by the court.), 58 Ohio St 599 (51 NE 136, 41 LRA 689, 65 Am St Rep 785).
The supreme court of Georgia, in reference to an ordinance of the city of Atlanta, in regard to licensing persons who engage in or work at the business of plumbing,
• “Held, (a) that this ordinance, in case of a firm or corporation, where one member of the firm or the manager of the corporation has been licensed, permits others than the member or manager so licensed, by virtue of such license, to engage in or do the work of plumbing in the city of Atlanta without standing an examination as to fitness and obtaining a license, but does not permit a like privilege to persons other than those referred to in the 2 instances above stated.
“(b) The ordinance referred to is discriminatory in character, and is therefore unconstitutional.” Henry v. Campbell, 133 Ga 882 (67 SE 390, 27 LRA NS 283, 18 Ann Cas 178).
The supreme court of Mississippi held invalid an ordinance of the city of Vicksburg, concerning which, among other things, the court says (City of Vicksburg v. Mullane, 106 Miss 199, 217 [63 So 412, 50 LRA NS 421]):
“This ordinance imposes special restrictions and burdens on some and grants special privileges to others engaged in the same work in Vicksburg. All the plumbers in that city are not required to stand the examination and incur the expenses of a license fee. This burden is not placed on those working for a corporation where an officer qualifies or on a firm where one member procures license. It is imposed upon those like Mr. Mullane, laboring alone, doing his work by his own hands.”
The court further says, page 218:
“This ordinance does not operate equally upon Mr. Mullane and all other plumbers in that city. It is discriminatory as to him.”
“Chapter 356, p 575, Laws 1901, which requires journeymen plumbers to take an examination and procure a certificate of competency, held unconstitutional, being in contravention to sections 33 and 34, article 4, of the Constitution. An arbitrary basis of classification is adopted in restricting the application of the act to cities of 10,000 inhabitants, or more, which have a system of sewer or waterworks, and an arbitrary and unjustifiable distinction is made between master plumbers and journeymen plumbers.” State, ex rel. Chapel, v. Justus (Syllabus by the court.), 90 Minn 474 (97 NW 124).
“The equal protection of the law is denied by Laws 1897, c. 338, requiring licenses for plumbers on examination, but providing, ‘in the case of a firm or corporation, the examination or licensing of any one member of the firm or the manager of the corporation shall satisfy the requirements of this act.’ ” State, ex rel. Winkler, v. Benzenberg, 101 Wis 172 (76 NW 345, syllabus).
It was held in effect in State v. Hinman, 65 NH 103 (18 A 194, 23 Am St Rep 22), that a license fee cannot in view of the constitutional objection be imposed upon certain persons where others of the same class and profession are exempt under similar circumstances and conditions.
“The fact that a rule of law may in certain instances work a hardship does not violate the due' process of law clause of the Constitution, provided it operates without any discrimination and in like maimer against all persons of a class.” Peoples Wayne County Bank v. Wolverine Box Co., 250 Mich 273, 281, 282 (69 ALR 1024). (Italics supplied.)
The act in question in the instant case, clearly and unjustly discriminates in favor of trustees, hanks, trust companies, building and loan associations and' savings and loan associations, as against all other persons in the same class doing residential building operations. The corporations mentioned in section 4 (g) are entirely exempted from obtaining a license before they build on any property to which they hold title or have an equitable title or in which they have a financial interest, a very important discrimination in favor of such corporations.
The statute in question in the instant case violates the due process and equal protection clauses of the Federal Constitution and the due process clause of our State Constitution (article 2, § 16).
The order dismissing the cause of action is reversed. The cause is remanded to the trial court for further proceedings. No costs, a question of public importance being involved.
Dethmbrs, C. J., and Adams, Butzel, Carr, Bushnell, Sharpe, and Boyles, JJ., concurred. | [
-2,
57,
-13,
-23,
-14,
2,
16,
22,
12,
18,
-20,
-18,
15,
-61,
36,
-14,
12,
38,
-1,
34,
-7,
-15,
23,
-15,
5,
27,
12,
3,
-20,
-2,
-63,
-4,
-27,
11,
-10,
-10,
56,
2,
-30,
-4,
-33,
1,
-6,
1,
-7,
-14,
-16,
-1,
35,
9,
-24,
1,
0,
3,
-14,
-53,
-15,
-8,
-56,
36,
-3,
8,
7,
21,
-3,
-18,
25,
44,
0,
-2,
-19,
-18,
-29,
-15,
24,
-28,
-3,
13,
-29,
4,
-17,
-34,
73,
-62,
-30,
-11,
-4,
21,
-35,
66,
-31,
5,
-28,
11,
7,
23,
13,
41,
27,
-25,
14,
28,
30,
5,
-8,
36,
-18,
-52,
-63,
43,
12,
-49,
-5,
-21,
43,
5,
-47,
23,
6,
-18,
12,
38,
30,
-38,
-2,
1,
8,
-26,
-47,
27,
8,
3,
-8,
15,
-37,
19,
20,
-21,
38,
-1,
37,
24,
-6,
-29,
2,
0,
15,
-38,
-8,
-23,
-59,
9,
80,
29,
0,
17,
-5,
-29,
47,
-36,
39,
-17,
-13,
-12,
-43,
-11,
-22,
27,
3,
6,
7,
29,
-23,
-55,
23,
6,
38,
-25,
-16,
-17,
-24,
-25,
13,
1,
16,
-42,
31,
-60,
53,
-23,
47,
-30,
-33,
38,
15,
43,
-29,
22,
0,
-27,
14,
-49,
0,
-10,
28,
-8,
-4,
-18,
-10,
-1,
-23,
-10,
-46,
6,
12,
37,
21,
11,
19,
3,
8,
-7,
13,
39,
-47,
-22,
20,
-57,
45,
3,
-14,
-15,
31,
7,
-63,
-3,
13,
1,
23,
39,
-74,
-13,
-19,
21,
-26,
-32,
-34,
-24,
-36,
-6,
-30,
-32,
17,
12,
19,
6,
29,
0,
-33,
10,
-32,
19,
-8,
-20,
16,
-1,
9,
-26,
-23,
-5,
9,
48,
44,
51,
-50,
-29,
-25,
13,
7,
-30,
-39,
-28,
-23,
-34,
25,
43,
-16,
2,
-18,
-5,
23,
-16,
-2,
-5,
42,
29,
46,
-42,
25,
18,
-39,
12,
-17,
-22,
-3,
-3,
-34,
-28,
16,
0,
9,
-7,
16,
0,
20,
-5,
17,
-24,
-43,
-38,
43,
-22,
-4,
30,
-2,
-35,
14,
2,
-12,
20,
3,
-43,
6,
-2,
-14,
-21,
40,
-70,
-24,
6,
16,
17,
31,
-5,
-2,
19,
-6,
-25,
-6,
-10,
33,
-10,
-25,
25,
18,
48,
25,
6,
-31,
30,
34,
66,
-21,
-26,
-22,
-14,
-45,
31,
12,
66,
24,
15,
-16,
44,
-4,
7,
-41,
16,
-54,
56,
3,
-30,
0,
9,
-9,
58,
6,
-38,
-4,
29,
-39,
-62,
19,
0,
-11,
-39,
33,
-7,
-39,
-1,
-2,
6,
-35,
-11,
-18,
-3,
-10,
16,
0,
60,
-4,
20,
13,
25,
-22,
6,
44,
-13,
13,
32,
7,
9,
2,
-54,
7,
-57,
-14,
11,
-34,
12,
-22,
-8,
31,
19,
40,
1,
-13,
3,
-10,
10,
-26,
21,
15,
-12,
9,
16,
3,
23,
-4,
-45,
9,
38,
-10,
-22,
6,
-11,
4,
-7,
67,
3,
5,
-3,
2,
-35,
23,
-20,
-37,
-19,
34,
-7,
-8,
10,
-22,
-26,
32,
12,
62,
-29,
25,
-53,
48,
7,
-20,
-14,
-24,
-50,
-29,
-18,
-41,
7,
23,
34,
-27,
17,
13,
3,
4,
-21,
-46,
20,
-19,
0,
20,
-5,
-13,
6,
-20,
13,
3,
52,
-48,
14,
11,
54,
-36,
-20,
40,
37,
4,
18,
-16,
17,
-4,
4,
32,
35,
-21,
50,
24,
-15,
5,
-51,
28,
51,
-25,
17,
82,
38,
-13,
8,
33,
38,
-17,
13,
-20,
7,
-45,
-33,
-7,
10,
-4,
-66,
1,
10,
-20,
-6,
-39,
20,
-13,
-22,
-22,
15,
78,
3,
38,
-35,
-41,
-5,
10,
-2,
-31,
7,
-7,
-60,
15,
39,
-24,
-62,
0,
-6,
39,
-56,
40,
-24,
-18,
27,
23,
13,
27,
20,
-10,
-33,
-11,
-32,
18,
-31,
-57,
20,
0,
-20,
-17,
-64,
-24,
28,
14,
21,
-23,
58,
4,
21,
23,
-1,
-10,
-8,
10,
33,
20,
-50,
13,
-1,
21,
37,
40,
-28,
19,
27,
3,
23,
-20,
13,
-23,
5,
0,
-25,
21,
17,
20,
6,
0,
-8,
-53,
6,
-37,
8,
-14,
-6,
-2,
-15,
7,
9,
-31,
-4,
0,
-19,
21,
-28,
28,
-75,
21,
-33,
8,
-54,
-12,
43,
20,
-5,
74,
15,
25,
5,
-30,
-18,
21,
25,
23,
-60,
-53,
16,
47,
20,
3,
-34,
10,
10,
-12,
-31,
-16,
-14,
-18,
2,
8,
-25,
-33,
-46,
-30,
21,
-8,
20,
-11,
-28,
-10,
0,
36,
-4,
-33,
36,
0,
4,
43,
-33,
-4,
-45,
10,
12,
18,
49,
6,
15,
-21,
-12,
10,
-67,
-12,
1,
36,
17,
13,
-47,
-20,
20,
5,
38,
-11,
0,
27,
-2,
1,
37,
-19,
6,
47,
-20,
-24,
-14,
-8,
-60,
63,
-1,
-8,
24,
-35,
27,
-13,
25,
20,
15,
-37,
9,
-7,
46,
-41,
38,
-28,
25,
57,
-24,
-21,
-25,
-19,
-36,
-28,
52,
-34,
-42,
-5,
-4,
-30,
-55,
2,
13,
84,
-4,
17,
-6,
-4,
-31,
64,
-1,
20,
34,
-26,
2,
-31,
-29,
-45,
8,
65,
13,
7,
-35,
-4,
82,
19,
23,
26,
1,
-72,
-22,
-16,
-24,
13,
16,
-6,
-41,
-22,
-14,
0,
65,
-36,
-1,
-2,
63,
-22,
-43,
19,
-51,
-13,
39,
-28,
6,
34,
-15,
0,
13,
6,
-30,
9,
6,
3,
0,
30,
-36,
-54,
30,
-9,
16,
20,
-17,
-19,
-5,
-38,
65,
-7,
-31,
29,
29,
3,
-6,
-5,
-11,
99,
30,
-35,
11,
-6,
-24,
-24,
-40,
11,
8,
34,
11,
6,
-18,
18,
-19,
-3,
-16,
9,
22,
4,
33,
19,
-29,
-32,
-13,
50,
-19,
-2,
18,
59,
46,
-25,
3,
-13,
-1,
5,
-43,
-4,
-24,
30,
21,
-12,
3,
0,
-22,
32,
-2,
-16,
6,
-34,
-13,
6,
-2,
-18,
9,
-7,
-20,
22,
60,
-3,
-42,
-45,
-7,
-8,
-12,
-24,
28,
6,
9,
15,
-33,
-25,
29,
8,
-17,
5,
-44,
15,
-51,
3,
-23,
-10,
-20,
-6,
6,
-6,
30,
21,
-15,
-11,
27,
64,
25,
12,
0,
-17,
-2,
-8,
-31,
-17,
36,
2,
-16,
-6,
-40,
2,
-14,
38,
-2,
-12,
-15,
29,
3,
-19,
10,
22,
9,
7,
-10,
-8,
-23,
6,
31,
-3,
-8,
36,
-13,
-6,
-15,
43,
18,
-6,
4,
-23,
7,
-9,
-43,
14,
18,
60,
13,
30,
-11,
33,
-5,
39,
-20,
16,
17,
-28,
35,
35,
24,
-42,
-5,
-43,
51,
-32,
-14,
24,
-10,
-34,
16
] |
Boyles, J.
This is a divorce case. The only substantial question for review is whether the plaintiff, an officer in the United States Army, committed a fraud on the court, by claiming residence in Kent county. Service in the case was obtained on the defendant, residing in California, by publication, and by registered mail, of an order for such service. The defendant’s return receipt, which was filed, showed receipt by her of such order approximately 3 months before her default for nonappearance was entered. The default proceedings were regular, and resulted in a pro confesso decree of divorce for the plaintiff April 11, 1952. About April 20th plaintiff was served with a summons to appear in a divorce case started by the defendant April 15,1952, in California, where she had resided since late in 1950, separate from the plaintiff. So far as shown- here, that case is still in court. About 2 months after the decree for plaintiff in the instant case had been entered in Kent. eounty the defendant filed a petition in the case asking that the decree be set aside on the ground that the plaintiff had not resided in this State for 1 year, or in Kent county 10 days, immediately preceding the time of filing his bill of complaint. The court granted the motion and the plaintiff appeals.
The parties were married at Louisville, Kentucky, May 14, 1949. At that time plaintiff’s parents were living in Louisville and he was there on a visit to them. He was not in active United States service at that time. He had been in Guam about 2-1/2 years, as a- civilian employee. The defendant’s home was in California. After the marriage they took a trip that lasted until about the middle of August, 1949, when they came to Grand Rapids. He testified that he came back to Grand Rapids to. stay. The defendant was in Grand Rapids from November, 1949, to September, 1950, employed for some time at Blodgett hospital. The' record, indicates that when the defendant returned to California in 1950 it was her intention to seek an annulment of the marriage. The plaintiff lived with his son in Grand Rapids for about 2 months, went to Indiana for a month or 2, back to Grand Rapids for 2 or 3 weeks with his son, then “took a month’s duty in November of 1949 and went to Fort Riley”—apparently as a reserve officer in the United States service not on active duty—then he returned to Guam as a civilian employee. He returned to Grand Rapids in March, 1950, for about 2 weeks, then went to Washington, D.C., to see about a civilian job, but in the latter part of April was again ordered on active duty as a reserve officer of the Michigan District of Army. The Korean “War” broke out, he was kept in service, was sent to Fort Eustis, Virginia, reported there' about the middle of November, 1950, after he had returned again to his son’s home in Grand Rapids. He has been and still is in the United States Army service on active duty, with the rank of lieutenant colonel.
While plaintiff was in Guam about 2-1/2 years as a civilian employee, he had a family in Grand Haven, Michigan, to which place he returned in 1947. His residence was there at that time and his then wife obtained a divorce from him there in 1948 after he had again returned to Guam.
It is apparent from the record that during the time while plaintiff was in the active military service, beginning in 1940, and while he was overseas in the Second World War in 1942 and until separated from active duty in 1946, his legal residence was in Grand Haven in Ottawa county. Since, he terminated his residence there, and declared his intention to make Grand Rapids his home. We do not find from the record that he has resided in Grand Haven since 1949, up to the present time. After his marriage to the defendant in May, 1949, his domicile, hence his legal residence, outside the army, has been and still is in Grand Rapids, Kent county. See Reaume & Silloway, Inc., v. Tetzlaff, 315 Mich 95. When his bill of complaint was filed December 17, 1951, it was signed and sworn to in Alexandria, Virginia, at a time -when he was in service at Fort Enstis, Virginia, as a lieutenant colonel in the army. He is registered in the service as residing in Grand Rapids, and has declared Grand Rapids to be his home where he will live when his army service is over. He did not have domicile in Virginia, as claimed by the defendant, or elsewhere, except in Grand Rapids. He neither gained nor lost a residence anywhere by reason of being employed in the service of the United States. Michigan Const (1908), art 3, §2. He had changed his residence from Grand Haven, Ottawa county, to Grand Rapids, Kent county, after his family was broken up and his property in Grand Haven disposed of in the divorce there in 1948. Together with the defendant he went to Grand Rapids after their marriage in 1949. Since then his residence has been nowhere else. The trial court erred in concluding that it did not have jurisdiction on the basis of non-residence of the plaintiff in Kent county.
In their brief counsel for the defendant argue that the plaintiff was guilty of a fraud on the defendant by representing to her that he had discontinued his bill for divorce. In a letter written to her by him on February 13, 1952, while his divorce case was pending, he had said, “I stopped the court action as you requested.” Defendant infers that because of such fraud the trial court properly set aside the decree, notwithstanding the fact that the court gave another reason for taking that action.
The statement, unless taken out of context, does not support defendant’s claim of being misled. He wrote:
“When you left here I thought that you were sincere in plans to stop feeling sorry for yourself and to really try and get yourself straightened around a little. But your letters are the same old story of try ing to worry me to death. * * * I know that I must do something about it and all this letter writing is just a waster of time. All this talk of. what we should of done is childish. Certainly even you after all the difficulties you have created cannot expect me to ever again think that I could trust you to be of any help to me. I stopped the court action as you requested but unless you actually going to get this annulment started now I am going to tell them to go ahead again. You.know that I only have a few months to go and that I wanted this cleared up before that time, but to you nothing matters but to cause me more trouble. * * * I am about to close a deal on my car and that will give me the money for the expense that you said you needed for the annulment, so, if you really intend to go thru with it give me the name of your atty and I will have a draft made out to him and send it to you so you can take care of whatever is required there. * * * This of course will be done if you . take care of it there. If I have to do it here that will take all there is. Think it over and make up your mind, but I can tell you that under the existing conditions that there is nothing else I can do.”
In reference to the same matter, he testified
“Q. Now you state in this letter to Mrs. McFadden on the 13th of February ‘I have stopped court action as you requested’?
“A. I did. It is in there. No, I didn’t stop the action. I am under the impression I don’t stop court action.
“Q. I say, what you told her in this letter was not true, was it?
“A. At the time I wrote it, I made the arrangements with the attorneys and they talked me out of it and I left it go.”
A few days later (February 20th) plaintiff again wrote the defendant:
“My Atty. in Grand Rapids, my Atty. here and all the army officials that have been in on this, all advise against any delay on my part as they are all convinced that you do not now or did you ever intend to get an annulment or a divorce. Tour letters since you first left Mich, have been constantly threatening me in one way or another about what you would do to me if I do not give you more money. Again I say that your only interest in me is what you can chisel from me. I can see from your point where an annulment may be of some advantage, to you, if so it is your privilege to get one. You have stated before that I will be a free man on May 14th. But I have learned the hard way that the truth means nothing to you. I cannot find one thing that you told me that was true and your protestations of love are only used by you as dollar sign. I have not changed my mind one bit. I would be a fool to do so. You say you will come to Michigan and fight the case, you have that right, and as I told you before the courts will make the decisions not you.”
It is apparent that the defendant was not misled as to the plaintiff’s intention. The nub of this controversy seems to he whether the decree of divorce in Kent county will stand, of whether there will -be a divorce case in California. There were no children, and no property or alimony rights are involved here.
An order will be entered here setting aside the order of the trial court and reinstating" the decree as of the date of its entry April 11, 1952, and remanding the case with direction for enforcement. Costs to appellant.
Dethmers, C. J., and Adams, Bittzel, Carr, Btjshnell, Sharpe, and Reid, JJ., concurred.
CL 1948, § 552.9 (Stat Aim 1951 Cum Supp § 25.89).
Before retirement from military service. | [
34,
-3,
-25,
54,
-36,
-45,
4,
20,
20,
-2,
-9,
-35,
11,
-27,
-28,
-44,
-1,
13,
45,
-45,
-48,
23,
-15,
26,
74,
38,
11,
14,
-30,
-36,
16,
4,
-25,
-26,
52,
-29,
59,
-60,
28,
3,
-20,
-28,
3,
12,
-49,
-4,
-9,
-38,
11,
-7,
-23,
-9,
-5,
25,
32,
8,
-25,
19,
30,
-39,
-5,
15,
-32,
-26,
0,
19,
43,
65,
1,
-36,
2,
-85,
-5,
-58,
-19,
-7,
6,
22,
-50,
22,
23,
-9,
5,
-21,
6,
-4,
10,
27,
-30,
9,
-28,
46,
-41,
-54,
-26,
-30,
-28,
37,
45,
4,
-3,
-1,
-13,
69,
26,
25,
-3,
-86,
-55,
-42,
47,
-10,
30,
1,
-10,
-11,
1,
-39,
-26,
-44,
14,
16,
51,
5,
84,
-33,
-23,
0,
30,
20,
7,
0,
35,
-3,
-55,
-56,
8,
-70,
-24,
-74,
17,
0,
58,
21,
32,
28,
74,
-48,
23,
-5,
-40,
-29,
19,
45,
39,
44,
-10,
-3,
-35,
-57,
29,
-2,
-24,
-7,
3,
-31,
-27,
67,
-28,
-31,
7,
20,
-29,
5,
-5,
10,
-2,
28,
-27,
9,
4,
19,
5,
-34,
1,
2,
-16,
-38,
0,
-17,
-31,
-34,
77,
40,
19,
76,
3,
32,
-11,
-42,
-16,
-12,
21,
12,
-32,
15,
40,
60,
-22,
9,
18,
-13,
16,
-46,
-81,
-28,
-20,
-16,
-2,
23,
11,
3,
-23,
20,
7,
-34,
-4,
5,
-7,
-1,
-27,
-25,
24,
-18,
-12,
-9,
24,
45,
21,
25,
-9,
-23,
34,
-4,
21,
-34,
-48,
-29,
-21,
19,
8,
34,
-79,
19,
-13,
-65,
-3,
22,
47,
58,
1,
26,
-2,
34,
-42,
2,
5,
-2,
19,
-40,
-21,
-26,
4,
-41,
33,
0,
-28,
48,
-14,
26,
-15,
10,
15,
29,
-30,
-14,
30,
19,
41,
13,
0,
0,
-43,
-1,
-13,
-44,
18,
8,
-30,
41,
26,
3,
35,
-4,
-44,
-40,
-41,
-35,
-5,
13,
43,
28,
27,
-30,
28,
12,
14,
-19,
16,
-46,
-10,
35,
-15,
25,
-22,
25,
8,
-21,
-13,
-10,
-6,
-3,
-29,
23,
14,
-41,
1,
0,
-13,
-25,
9,
-23,
-7,
52,
6,
58,
5,
5,
26,
-20,
-34,
-23,
27,
33,
-41,
32,
-9,
-51,
-26,
-6,
-25,
-8,
-2,
-30,
-23,
56,
-5,
-33,
25,
38,
10,
-15,
-22,
17,
-30,
-7,
-22,
-20,
4,
23,
-12,
-41,
-26,
56,
-8,
-33,
-19,
-5,
-6,
14,
-29,
-14,
-5,
-29,
-55,
2,
19,
9,
-31,
13,
-8,
36,
16,
11,
-9,
-7,
-4,
-36,
-29,
-14,
68,
-16,
16,
50,
44,
7,
7,
57,
37,
2,
20,
48,
-67,
-37,
4,
4,
-48,
3,
41,
20,
26,
14,
42,
-35,
44,
-8,
-55,
34,
13,
31,
-16,
65,
-12,
23,
-33,
-28,
-7,
-10,
28,
23,
23,
34,
-9,
35,
-42,
19,
6,
3,
-42,
-41,
25,
-10,
41,
-3,
6,
-15,
-23,
-12,
-10,
29,
16,
-8,
-30,
29,
-28,
-10,
3,
-13,
22,
-51,
-50,
-13,
-61,
-67,
-24,
-14,
-7,
-12,
20,
36,
-29,
-21,
-20,
42,
7,
-16,
-37,
10,
-36,
-7,
-25,
3,
42,
-13,
59,
26,
-5,
22,
-35,
24,
-46,
-37,
23,
21,
7,
-17,
54,
0,
-5,
4,
-15,
0,
-10,
-32,
27,
38,
11,
-9,
-6,
4,
0,
18,
-26,
-58,
-14,
1,
20,
-10,
2,
-19,
31,
29,
23,
17,
2,
17,
-47,
-34,
-46,
7,
5,
-18,
0,
30,
-16,
-15,
-10,
18,
-18,
-34,
1,
15,
-2,
9,
12,
-24,
-28,
-9,
-25,
-27,
15,
21,
6,
6,
42,
28,
-21,
14,
-5,
-19,
-8,
13,
-43,
-37,
-5,
-5,
38,
38,
22,
-47,
-62,
18,
-32,
1,
55,
-40,
-5,
-27,
-9,
15,
6,
-60,
-36,
16,
4,
20,
30,
55,
-38,
-58,
26,
-10,
21,
-4,
9,
2,
19,
-62,
-3,
11,
-77,
0,
19,
10,
2,
-21,
15,
30,
-8,
-22,
6,
-12,
46,
-19,
28,
-3,
18,
12,
-48,
-4,
43,
55,
-21,
8,
-31,
-36,
40,
-42,
11,
5,
32,
48,
-23,
16,
24,
-29,
30,
-59,
22,
-7,
-43,
-21,
32,
59,
26,
25,
-13,
10,
-12,
10,
-63,
-22,
26,
0,
22,
-12,
0,
-28,
42,
-28,
1,
21,
9,
14,
-10,
-13,
8,
18,
-16,
3,
13,
3,
-22,
76,
-30,
14,
-27,
15,
16,
33,
-9,
-44,
-20,
15,
-2,
14,
-1,
13,
-5,
23,
-57,
19,
32,
-8,
-23,
-15,
37,
-10,
-26,
-4,
-55,
19,
-26,
-33,
58,
8,
4,
0,
34,
-54,
31,
23,
-18,
-18,
-47,
-23,
33,
-21,
-37,
15,
27,
-47,
2,
30,
33,
31,
18,
28,
-5,
-3,
22,
29,
24,
-6,
6,
9,
29,
-16,
-24,
2,
28,
53,
-53,
-18,
-43,
-14,
-38,
-27,
4,
6,
-43,
18,
40,
-36,
-27,
16,
0,
-12,
71,
-25,
-8,
24,
-3,
3,
22,
-51,
32,
15,
14,
15,
-19,
-71,
2,
-20,
7,
3,
-12,
-14,
-25,
-4,
14,
14,
11,
3,
24,
7,
0,
39,
-21,
4,
7,
19,
-16,
-43,
-51,
-25,
-31,
30,
-19,
5,
39,
-28,
2,
-35,
-47,
-15,
-5,
0,
-9,
4,
-10,
-26,
56,
-18,
3,
16,
46,
-43,
-16,
10,
31,
35,
12,
-50,
10,
40,
9,
1,
48,
-20,
27,
-9,
-24,
36,
36,
40,
5,
46,
-12,
-66,
-30,
-33,
-7,
-57,
13,
-24,
2,
-41,
13,
-13,
33,
-41,
-16,
30,
3,
9,
56,
-24,
16,
-36,
-21,
19,
4,
-9,
2,
30,
41,
22,
-41,
6,
38,
64,
7,
26,
-20,
23,
17,
-8,
-32,
38,
-5,
0,
-29,
-11,
22,
22,
-30,
-4,
-23,
-6,
7,
23,
-13,
0,
18,
9,
13,
18,
4,
-47,
35,
-32,
-33,
-13,
-1,
-24,
19,
-10,
-19,
44,
54,
-55,
-45,
9,
49,
51,
3,
44,
35,
26,
-19,
0,
-30,
7,
-35,
20,
-15,
36,
0,
30,
-34,
45,
11,
37,
-19,
10,
13,
-30,
-5,
-29,
-16,
15,
-1,
-25,
-23,
-14,
-20,
39,
-1,
-24,
22,
-58,
-8,
-27,
11,
-15,
23,
78,
5,
45,
9,
-11,
-34,
21,
-22,
-12,
-11,
-14,
-20,
-18,
74,
-4,
2,
1,
1,
17,
-25,
-52,
-3,
12,
2,
-47,
37,
10,
77,
-47,
-16,
-16,
-27,
8,
2,
-6,
36,
13,
-26,
37,
-14,
-1,
32,
9,
10,
-1,
21,
7
] |
Adams, J.
Defendant and appellant, Ike Johns, together with 2 other defendants, was charged with violating the provisions of CL 1948, §§ 750.302 and 750.303 (Stat Ann §§ 28.534 and 28.535). The information in the case contains 6 counts, 3 alleging violations of the provisions of section 750.303 and the remaining 3 alleging violations under the provisions of section 750.302.
The first 3 counts allege that the defendant kept and maintained a gaming room, gaming table and game of chance used for gambling on certain premises ; that he suffered a gaming room, gaming table and game of chance to be kept and maintained on premises occupied and controlled by him; and that he aided, assisted and abetted in the keeping arid maintaining of a gaming room, gaming table and a game of chance on certain premises, all for hire, gain and reward. The remaining 3 counts allege that the defendant kept, occupied and assisted in keeping and occupying a place where gambling was permitted; that he suffered and permitted certain apparatus used for gaming and gambling on premises occupied and controlled by him; and that he used certain apparatus for gambling and gaming on certain premises.
Upon arraignment in the circuit court, defendant moved to dismiss the information on the ground that there was a misjoinder of the offenses set forth therein. The motion was denied and the 3 defendants were tried jointly by a jury. Defendant Ike Johns was found guilty on all 6 counts and sentenced to a term of 18 months to 2 years in the State prison on each of the first 3 counts, and from 9 months to 1 year on each of the last 3 counts, the 6 sentences to run concurrently. Defendant then moved for a new trial which was denied, and from the denial of that motion and the conviction and sentence, he takes this appeal.
Defendant’s principal assignment of error has to do with the joinder of counts in the information. It is his contention that the trial court was in error in refusing to dismiss the information or, in the alternative, to compel the prosecutor to elect between the various counts on the ground that there was a misjoinder; He argues that the first 3 counts of the information charge substantially different crimes from those charged in the last 3 counts, that different proofs are required, and that the punishment provided is materially different.
It is an accepted rule in this State that separate and distinct offenses may be charged as separate counts in an information in order that 1 or more of the counts may be found upon trial to meet the evidence.
“ ‘The true and only just rule as regards the joinder of counts in an information or indictment seems to be, if the different counts are drawn and used with a view to one and the same transaction, so that one of them, upon the trial, may be found to meet the evidence, the court will not interfere with the proceeding, as such an object is a legitimate one. It is a proceeding calculated to promote justice, and cannot confuse or prejudice the defense of the accused.’” People v. Aikin, 66 Mich 460, 470 (11 Am St Rep 512), as quoted with approval in People v. Larco, 331 Mich 420, 428.
But in so joining counts, the defendant must not| be denied any substantial rights nor prejudiced in his defense.
“ ‘As a general rule, in cases of felony, when it, clearly appears, from the indictment or otherwise,! that several entirely distinct felonies are intended to be charged and proved, the court will, in its discretion, either quash or compel the prosecutor to., elect: And the same course is sometimes taken in misdemeanors where several offenses in no way connected are charged. Bnt there is nothing technical in the rule; and in the exercise of this discretion the court will not be governed simply by the question whether several different offenses in point of law are charged and intended to he proved; hut mainly, as a general rule, by the consideration whether the trial of these several offenses would involve the proof of substantially different transactions, and thereby tend to confuse the defendant in his defense, or deprive him of any substantial right. And therefore where the several offenses charged, though distinct in point of law, yet spring out of substantially the same transaction, or are so connected in their facts as to make substantially parts of the same transaction, or connected series of facts, the defendant can not he prejudiced in his defense by the joinder, and the court will neither quash nor compel an election. Such would seem to he the principle of the general rule to be deduced from the cases.’ ” People v. McKinney, 10 Mich 54, 95, as quoted with approval in People v. Larco, supra.
It is to he noted that this Court has emphasized that the offenses charged in the several counts must arise out of substantially the same acts committed at the same time.
“ ‘Election between counts cannot he required on the ground that distinct offenses are charged where they are committed by the same acts at the same time and the same testimony must be relied on for conviction.’ ” Syllabus in People v. Sweeney, 55 Mich 586, as quoted with approval in People v. Larco, supra.
In this case, a witness for the people testified that the defendant, Ike Johns, met him at the entrance to a building in the city of Lansing on the evening of February 24, 1950; that Johns personally admitted the witness into a room where gambling was taking place and where gambling equipment was in use; that during the hour and a half while the complaining witness remained in the building, no persons were admitted except by the defendant, Ike J ohns; that several incidents occurred from which a reasonable inference could be drawn that Johns was in charge of the gambling activities; that at least one other person was occupied in operating gambling-devices ; that a substantial number of persons were present and engaged in gambling; and that a portion of the money being- gambled was taken by those in charge of the operations in payment for the use of the premises and equipment. It is apparent that sufficient evidence was produced to satisfy all the essential elements of each of the offenses charged in the several counts of the information which, if believed by the jury, justified a verdict of guilty on each count.
All the testimony in reference to the happenings on February 24th covered a period of an hour and a half. Defendant, however, argues that keeping and occupying a place where gaming is permitted and suffered must be proven by a series of acts extending over a considerable period of time, and therefore requires different proofs than the other crimes charged. We do not believe that any specific time limit is contemplated by the statute. Testimony that gambling was permitted and suffered on the premises for an hour and a half fulfills the requirement of the statute.
While it is entirely possible that different proofs could be offered under each of the several counts, the fact remains that in the present instance substantially the same proofs were offered in reference to each count. The acts committed, proof of which was essential to a conviction on each of the counts, occurred within a period of an hour and a half and out of substantially the same transaction.
Defendant further contends that the joining of the 6 counts was improper because punishment for those acts charged in the first 3 counts differed from those in the last 3. Conceding that the punishment provided by the statute does vary, there is no merit in the contention.
In People v. Rabin, 317 Mich 654, the propriety of joining 4 counts in an information charging different forms of the offense of arson was questioned. One of the counts charged the defendant with having violated the provisions of CL 1948, § 750.72 (Stat Ann § 28.267), another with violation of the provisions of CL 1948, § 750.73 (Stat Ann § 28.268). The punishment prescribed in the statute, however, is far more severe for a violation of the first section cited than for the second. Although the precise question herein involved was not discussed, it was held that the 4 counts were properly joined.
CL 1948, § 767.75 (Stat Ann § 28.1015), grants authority to the trial court to order offenses charged in an information separated into counts, but the statute does not suggest or require that the offenses charged in the separate counts be subject to equal punishment.
It is the settled practice in this State to set forth counts in the same information charging offenses of varying gravity where the purpose is legitimate and justified. The extent of the sentence provided for an offense is normally related in period of time to the significance of the crime and in large degree-is indicative of the extent of the injury to the public peace. Such punishment, however, is in no way related to the conduct of the trial or the proofs showing the guilt or innocence of the accused. The provisions relating to sentence become effective only, after conviction is had. It seems clear, therefore, that the extent of the sentence as established by the statute should in no way affect the application of rules for the conduct of the trial.
If, on the other hand, it is contended that misjoinder may be found to exist after differing sentences are imposed upon conviction under more than 1 count, then a finding of misjoinder would have to await the conclusion of the case. .Such a delayed method of testing would not be a reasonable application of the rule on joinder.
Although the defendant was sentenced to imprisonment for differing periods, the sentences ran concurrently. In actual fact it was but a single sentence for a period of 2 years and defendant lost no substantial rights by virtue of the fact that the record shows the serving of more than 1 sentence during the same period. People v. Podsiad, 295 Mich 541. The punishment imposed was in no way increased by the multiplicity of sentences. We conclude, therefore, that there was no error in joining the 6 counts in the information.
Defendant further claims that error occurred through certain prejudicial remarks made by the prosecutor in the presence of the jury. Defendant did not take the stand in his own behalf and it is his contention that the prosecutor improperly commented upon such failure when he said that he was ready to prosecute any gamblers that the defendant was willing to identify. The comment was made in answer to a charge by counsel for the defendant that all gamblers in the community were not being prosecuted. It is difficult to discern any relationship between the prosecutor’s comment and the failure of the defendant to testify in his own behalf. While the prosecutor’s remarks contributed nothing to the trial and might well have been left unsaid, they can not be interpreted as referring to defendant’s, decision not to testify.
Defendant complains, too, that the prosecutor made a prejudicial remark when he called the Syrian-American Club a “phony” corporation. Testimony in the trial indicated that the place where the gambling was alleged to have taken place was owned by the Syrian-American Club.
In his opening statement to the jury, counsel for the defendant said:
“But unfortunately we have a membership that is composed in large numbers of gamblers, of men who go up and play dice and play poker. Now, I am not here to defend the Syrian-American Club.”
Having thus characterized the club, defendant was in no position to later take offense at an uncomplimentary remark by the prosecutor directed towards the same club.
Defendant also claims error in the court’s refusal to sustain an objection to an answer which he claims was prejudicial and not responsive to the question. The principal witness for the people was an investigator for the Michigan liquor control commission, and so identified to the jury. While testifying as to what he observed while in the defendant’s place, the following question was put to him by defendant’s attorney:
“Q. Well, now, why don’t you remember anyone else if you counted them when you went in?
“A. I was up there investigating a complaint of gambling and liquor being sold on the premises.”
Having in mind defendant’s known employment and his duties, his answer was responsive and it is' not reasonable to believe that it had a prejudicial effect on the jury.
Defendant also alleges error in the court’s charge to the jury and in particular says that he failed to properly define gambling when he said:
“Let me say here that 'gambling’ may be' and is applied, in common speech, to play with stakes at cards, dice, or any other contrivance, to see which shall be the winner and which is the loser.”
While the definition as given by the judge may not be technically and completely accurate, nevertheless defendant was in no way prejudiced because his attorney had already said in his opening statement to the jury that the existence of gambling 'on the premises was conceded. The existence of gambling not being an issue at the trial, an exact definition of those things which constitute gambling was of no' consequence.
Defendant further contends that the judge, in instructing the jury erred in not submitting the proper rule for the consideration of false testimony. The record.quotes the judge as saying:
“If you believe that anyone has not told the truth in a material matter in this case, you can disregard that part of the testimony, or disregard it in its entirety except as it might be corroborated. by such testimony as you do believe.” • ' •.
In People v. Paremba, 240 Mich 489, this Court said that the following was a proper instruction ta a jury: .
“If any witness testifies falsely in this matter upon a.material fact, deliberately testifies falsely,’ you have a right to disregard all or any part of that witness’ testimony, provided it is not corroborated by any other competent testimony.”
It does not follow, however,' that other instructions similar in substance might not he equally proper.
The word “truth” appearing in the court’s instructions is defined in Webster’s New International Dictionary (2d ed), as “veracity; sincerity in character, action and speech; genuineness in expressing feeling or belief.” “Not telling the truth” implies the absence of those characteristics stated in the definition; that is, an intention to deliberately misstate facts. It is reasonable to assume that the jury so understood the judge’s instructions and defendant was in no way prejudiced in his rights by a minor variation from an approved rule.
Other errors are claimed in the admission of testimony ahd in the court’s charge to the jury and have been considered. Prom a full examination of the record we are of the opinion that the trial judge, made every effort to afford the defendant a fair trial, that the rules of evidence were fairly applied and that defendant was not deprived of ■ any legal right.
The denial of a motion for a new trial was proper. The judgment is affirhied.
Butzel, Bushnell, Sharpe, Boyles,- and Beid, JJ., concurred with Adams, J.
Dethmers, 0. J., and Carr, J., concurred in the result.
See Const 1908, art 2, § 16.—Reporter. | [
46,
33,
12,
37,
-14,
-52,
-13,
2,
-17,
50,
10,
38,
-13,
-19,
32,
-56,
-68,
4,
-28,
3,
7,
7,
-34,
17,
22,
9,
49,
57,
-31,
-14,
21,
-4,
-11,
25,
-10,
31,
36,
20,
-11,
-47,
53,
-60,
-57,
-1,
-55,
1,
-8,
-24,
67,
-27,
7,
-5,
15,
19,
-29,
-5,
-3,
-6,
-12,
-1,
4,
9,
-47,
-25,
33,
-61,
-31,
-49,
-16,
-24,
11,
1,
-35,
-44,
-29,
-14,
-14,
-3,
-38,
-4,
-48,
18,
-2,
-9,
-2,
0,
63,
-28,
12,
-33,
-34,
-34,
-30,
-28,
2,
18,
43,
52,
-9,
-56,
-7,
-10,
-49,
10,
53,
25,
0,
-28,
-42,
7,
7,
-16,
31,
11,
0,
22,
-10,
26,
-84,
-34,
3,
-12,
42,
30,
-12,
33,
10,
-39,
-29,
-7,
-23,
8,
-23,
-36,
-34,
27,
7,
33,
0,
6,
36,
0,
47,
25,
26,
4,
-26,
66,
23,
-20,
-16,
-16,
39,
72,
33,
-8,
-46,
22,
-25,
30,
-16,
3,
0,
-64,
34,
-7,
-19,
1,
8,
-13,
9,
7,
9,
7,
-23,
17,
5,
-39,
-9,
-20,
-3,
46,
-28,
28,
37,
-6,
11,
-75,
-28,
-29,
72,
-16,
22,
-20,
68,
-10,
3,
20,
8,
-15,
-14,
-39,
46,
-18,
48,
0,
-1,
42,
-70,
-33,
-26,
-10,
-1,
-34,
-49,
1,
-6,
-11,
22,
30,
-91,
-5,
-14,
-29,
-15,
-56,
31,
27,
-6,
-9,
-19,
7,
42,
46,
-25,
-36,
-9,
-45,
41,
21,
-38,
0,
-40,
-12,
33,
35,
-43,
46,
-67,
-29,
0,
14,
-26,
12,
-60,
-84,
-1,
17,
-88,
7,
-38,
8,
-7,
11,
-8,
50,
-15,
-27,
-19,
10,
-56,
-3,
12,
9,
-22,
-27,
-13,
45,
3,
-22,
32,
13,
29,
31,
-39,
-19,
-49,
16,
7,
-4,
15,
4,
-12,
-5,
48,
-46,
40,
-6,
18,
25,
0,
-19,
18,
-51,
2,
1,
41,
-24,
-8,
-58,
-4,
-26,
-16,
-50,
28,
-53,
10,
15,
37,
-3,
19,
-19,
8,
3,
-3,
-37,
35,
-73,
22,
-4,
-13,
-3,
15,
-20,
-32,
14,
36,
-23,
29,
24,
22,
-66,
64,
-40,
41,
-2,
21,
0,
-8,
-48,
-46,
-9,
38,
-32,
37,
-22,
-29,
-10,
17,
41,
63,
27,
-4,
-37,
7,
-43,
10,
43,
57,
-2,
1,
-48,
22,
28,
22,
-2,
40,
-14,
18,
3,
21,
84,
21,
-18,
9,
-15,
18,
-48,
8,
29,
-55,
-5,
-40,
-6,
32,
46,
11,
2,
48,
-32,
12,
-14,
55,
-24,
-29,
-12,
10,
-2,
-2,
-1,
0,
24,
27,
19,
46,
17,
-13,
-29,
-13,
-30,
61,
-23,
40,
30,
35,
-71,
-70,
18,
-21,
15,
-16,
11,
-16,
-22,
-13,
0,
-55,
13,
36,
6,
2,
-34,
-60,
43,
31,
-11,
-17,
-37,
34,
35,
36,
32,
2,
17,
-4,
20,
-5,
25,
-55,
-6,
7,
-6,
-12,
42,
52,
-25,
-95,
0,
-24,
-17,
-32,
30,
11,
-9,
-23,
22,
61,
9,
44,
-59,
53,
13,
6,
-32,
6,
-59,
18,
6,
-20,
11,
-40,
-9,
-14,
-6,
21,
40,
-4,
38,
-23,
45,
-22,
-20,
-6,
-16,
5,
11,
7,
-12,
9,
42,
-33,
33,
0,
48,
49,
-68,
49,
-60,
-65,
-20,
43,
-5,
-23,
19,
-38,
19,
-24,
-43,
10,
2,
45,
26,
1,
-63,
9,
-6,
1,
-51,
-39,
-11,
22,
18,
19,
62,
41,
-3,
11,
-20,
47,
7,
17,
61,
7,
-3,
-47,
5,
-67,
-13,
-26,
-13,
-37,
7,
21,
-26,
32,
25,
-25,
31,
38,
12,
48,
21,
0,
45,
-32,
6,
-4,
-21,
-5,
24,
-1,
30,
-48,
-42,
42,
7,
48,
44,
-13,
-10,
26,
-21,
12,
-6,
52,
18,
3,
-19,
-3,
-35,
47,
-42,
-44,
-26,
11,
-36,
-19,
8,
-40,
-20,
27,
27,
-16,
-17,
-3,
57,
16,
-56,
-40,
21,
3,
24,
-10,
-7,
49,
-15,
-2,
31,
-16,
-60,
11,
-35,
-5,
-24,
0,
-4,
-23,
15,
-45,
5,
7,
105,
2,
-44,
23,
52,
-5,
10,
-18,
23,
28,
24,
28,
-38,
19,
-34,
-47,
26,
5,
-14,
-9,
-13,
-18,
55,
39,
12,
54,
-38,
38,
-55,
30,
13,
36,
-23,
-16,
8,
-56,
25,
29,
-26,
13,
-16,
45,
-29,
28,
18,
17,
-8,
-10,
6,
-22,
17,
0,
12,
70,
4,
12,
-50,
-64,
-53,
-24,
21,
55,
39,
36,
-28,
1,
-16,
22,
28,
-37,
27,
21,
11,
-2,
3,
-30,
-18,
-68,
-2,
16,
0,
-26,
22,
14,
40,
18,
9,
22,
-40,
14,
-15,
-10,
9,
-19,
12,
-61,
-22,
25,
49,
-10,
-49,
-9,
-28,
-30,
-45,
25,
10,
18,
24,
41,
-5,
-31,
16,
-59,
8,
6,
-54,
-38,
-18,
-7,
36,
3,
-48,
-67,
-8,
-4,
2,
41,
21,
-27,
-67,
-9,
36,
-23,
70,
-35,
-42,
-15,
-17,
51,
37,
28,
18,
-4,
9,
5,
22,
22,
13,
-25,
-32,
23,
24,
-10,
-13,
9,
73,
-3,
-17,
1,
4,
32,
0,
-37,
-23,
40,
-16,
-5,
-39,
-32,
13,
-25,
-20,
-2,
-43,
-4,
-52,
2,
0,
43,
5,
-30,
-64,
-55,
-13,
-14,
-46,
39,
1,
48,
-25,
44,
-1,
26,
14,
26,
-3,
-60,
6,
-21,
52,
-27,
38,
14,
-4,
30,
-12,
36,
15,
19,
5,
-30,
-78,
-45,
11,
60,
41,
52,
0,
6,
-20,
-4,
-44,
-27,
20,
14,
39,
64,
-10,
1,
13,
-14,
12,
-43,
19,
-8,
-9,
-19,
-14,
-31,
-16,
-7,
30,
10,
-32,
-24,
-17,
-19,
2,
21,
-14,
12,
0,
9,
1,
-13,
-7,
4,
-57,
28,
36,
-52,
-8,
40,
16,
12,
-36,
-58,
50,
12,
18,
2,
36,
-49,
11,
-29,
46,
13,
16,
-12,
36,
58,
43,
-3,
14,
31,
-12,
-20,
12,
-38,
-9,
-7,
-21,
-13,
11,
-17,
-13,
62,
23,
-16,
16,
-53,
36,
-48,
6,
-16,
-12,
-28,
-10,
-74,
-1,
-33,
11,
-26,
30,
-17,
5,
2,
-20,
18,
10,
20,
37,
19,
-13,
26,
-29,
-24,
15,
-8,
-42,
-51,
29,
9,
39,
6,
0,
-7,
-52,
-7,
25,
7,
18,
-1,
-32,
-34,
34,
7,
27,
28,
-47,
12,
-3,
16,
9,
-34,
35,
8,
-14,
34,
-4,
46,
-9,
34,
45,
16,
60,
9,
-24,
6,
-4,
19,
-12,
21,
32,
-4,
29,
0,
7,
-57,
51,
-26,
6
] |
Sharpe, J.
Plaintiff, Benjamin DeVries, filed a petition in the Supreme Court for a writ of mandamus commanding Fred M. Alger, Jr., secretary of State, to issue plaintiff a motor vehicle operator’s license.
Plaintiff alleges that he is a resident of Grand Rapids; that on the 9th day of November, 1939, a default judgment in the amount of $255.80 and costs of $52.90 was taken against him in the superior court of Grand Rapids; that on March 26, 1940, plaintiff was discharged in bankruptcy; that plaintiff’s obligation to pay the judgment was terminated by the discharge in bankruptcy; and that on December 28, 1949, plaintiff made an application to defendant for a motor vehicle operator’s license which was promptly refused on the grounds that the running of the statute of limitations can in no way be considered as having stayed, satisfied or discharged the judgment and that the State of Michigan does not permit exemption through a discharge in bankruptcy as a satisfaction of judgment.
Upon the filing of the petition we issued an order to said Fred M. Alger, Jr., secretary of State, to show cause why mandamus should not be issued. The return- to the order to show cause avers that under the so-called financial responsibility act a discharge in bankruptcy is not a satisfaction of judgment and the running of the statute of limitations cannot be considered as having discharged the judgment.
Our original financial responsibility act was PA 1933, No 203. Section 3 of this act, as then last amended by PA 1939, No 216 (CLS 1940, § 4685-53, Stat Ann 1940 Cum Supp § 9.1543), in effect when the default judgment was entered, provided in part:
“Such operator’s license, chauffeur’s license, and registration certificates shall remain so suspended and shall not be renewed, nor shall any such license be issued to such person nor shall any such motor vehicle be thereafter registered in the name of such person while any such judgment remains unstayed, unsatisfied and subsisting nor until every such judgment is satisfied or discharged, except by a discharge in bankruptcy, and until the said person gives proof of his ability to respond in damages as required in section 2 of this act, for future accidents.”
Our present statute dealing with duration of suspension and a discharge in bankruptcy is PA 1949, No 300, § 513 (Stat Ann 1949 Cum Supp § 9.2213) and provides:
“(a) Such license, registration, and nonresident’s operating privilege shall remain so suspended and shall not be renewed, nor shall any such license or registration be thereafter issued in the name of such person, including any such person not previously licensed unless and until such judgment is satisfied in full or to the extent hereinafter provided, and until the said person gives proof of financial responsibility subject to the exception stated in section 515 of this chapter.
“(b) A discharge in bankruptcy following the rendering of any such judgment shall not relieve the judgment debtor from any of the requirements of this chapter.”
Plaintiff urges that PA 1949, No 300, § 513, is unconstitutional in that the Michigan legislature has no power or authority to enact legislation which supersedes and ignores the Federal bankruptcy act. Plaintiff also urges that the statute is invalid, either in its enactment, in its construction, or in its application as it does not accomplish a legitimate police power objective and violates the due process clause of the State and Federal Constitutions.
The long-established rule followed by our Court in construing a statute is that every reasonable intendment must be resolved in favor of the constitutionality of legislative action, see Johnson v. Commissioner of Agriculture, 314 Mich 548. In Sears v. Cottrell, 5 Mich 251, 259, we said:
“No rule of construction is better settled in this country, both upon principle and authority, than that the acts of a State legislature are to be presumed constitutional until the contrary is shown; and it is only when they manifestly infringe some provision of the Constitution that they can be declared void for that reason. In cases of doubt, every possible presumption, not clearly inconsistent with the language and the subject matter, is to be made in favor of the constitutionality of the act.
“The power of declaring laws unconstitutional should be exercised with-extreme caution, and never where serious doubt exists as to the conflict.”
See, also, In re Phillips, 305 Mich 636.
In construing the 1949 act we have in mind that “A license to operate a motor vehicle is a privilege granted by the State.” See Larr v. Secretary of State, 317 Mich 121. In accepting such license one must also accept all reasonable conditions imposed by the-State in granting the license, see People v. Thompson, 259 Mich 109.
We hold that the law in question is not objectionable on the grounds claimed by plaintiff for the reasons stated in Reitz v. New York Commissioner of Motor Vehicles, 314 US 33 (62 S Ct 24, 86 L ed 21), where similar claims were made as to section 94-b of the New York vehicle and traffic law. This section as originally enacted provided that one against whom a judgment is rendered for injury resulting from the operation of a motor car and who fails to pay it within the time designated, shall have his license and registration suspended for 3 years, unless in the meantime the judgment is satisfied or discharged, except by discharge in bankruptcy. As to this statute the United States Supreme Court said:
“First. The statute * * * is not obnoxious to the due process clause of the 14th Amendment. The use of the public highways by motor vehicles, with its consequent clangers, renders the reasonableness and necessity of regulation apparent. The universal practice is to register 'ownership of automobiles and to license their drivers. Any appropriate means adopted by the States to insure competence and care on the part of its licensees and to protect others using the highway is consonant with due process. Some States require insurance, or its equivalent, as a condition of the issue of a license. New York chose to obtain the same end by providing for the revocation or suspension of a license if the holder is adjudged guilty of negligent driving. Section 94-b permits the restoration of the license upon payment or satisfaction of the judgment. As the court below has held, the effect of the statute as it stood prior to the amendment of 1936 was to make the license privilege a form of protection against damage to the public inflicted through the licensee’s carelessness.
“Second. Prior to the amendment of 1936, the license could not be restored until 3 years had expired from its suspension unless the judgment were paid or discharged, except by a discharge in bankruptcy, and unless, also, the licensee furnished proof of his ability to respond in damages for any future accident.
“If the statute went no further, we are clear that it would constitute a valid exercise of the State’s police power not inconsistent with section 17 of the bankruptcy act. The penalty which section 9A-b imposes for injury due to careless driving is not for the protection of the creditor merely, but to enforce a public policy that irresponsible drivers shall not, with impunity, be allowed to injure their fellows. The scheme of the legislation would' be frustrated if the reckless driver were permitted to escape its provisions by the simple expedient of voluntary bankruptcy, and, accordingly, the legislature declared that a discharge in bankruptcy should not interfere with the operation of the statute. Such legislation is not in derogation of the bankruptcy act. Rather it is an enforcement of permissible State policy touching highway safety.”
Reasonable minds agree that the legislature has the right under its police powers to control automobile traffic. One of the purposes of the act in question is the regulation of such traffic by the control of those who may he licensed to drive a motor vehicle. In our opinion the act in question is not unconstitutional.
It is also urged that the defendant in his construction of the statute attempts to make the office of the secretary of State an agency to enforce payment of a debt. The running of the statute of limitations does not cancel the debt, it merely prevents a creditor from enforcing his claim.
In the Larr Case, supra, we had occasion to discuss the duties of the secretary of State in a similar act. We there said:
“The secretary of State has no authority to pass upon the question of negligence or freedom from negligence. He has no discretion, but is obliged to act as the law provides. If the penalty is harsh as to innocent parties, the relief sought must come from the legislative branch of our government.” (Italics supplied.)
It clearly appears to have been the policy of the legislature that a discharge of a debt by bankruptcy does not relieve the debtor from the requirements of the act. Likewise, in our opinion, the statute of limitations should not .relieve a debtor from the requirements of the act. In each case the moral obligation to pay a just debt remains, hut the power to enforce payment is stayed by operation of law.
The writ of mandamus is denied, but without costs as the interpretation of a statute is involved.
Boyles, C. J., and Reid, North, Dethmers, Butzel, Carr, and Bushnell, JJ., concurred.
See Mieli Const, 1908, art 2, § 16.—Reporter.
See US Const, am 14, § 1.—Reporter.
See 11 USCA, § 35.—Reporter. | [
17,
3,
43,
61,
29,
19,
30,
-34,
-1,
10,
-5,
-56,
7,
-22,
10,
7,
26,
33,
-51,
-3,
-26,
-25,
28,
17,
-6,
6,
-9,
30,
-19,
25,
7,
-64,
9,
28,
-32,
17,
10,
-24,
46,
31,
-1,
15,
-1,
13,
-38,
-49,
0,
-22,
-34,
-28,
-23,
-20,
-18,
-31,
-17,
-18,
7,
-5,
-9,
-16,
-10,
22,
20,
16,
-42,
25,
-9,
54,
-14,
22,
-12,
9,
14,
9,
11,
8,
28,
9,
-1,
8,
6,
-44,
10,
-27,
-22,
35,
-12,
26,
-35,
-43,
-45,
-1,
-54,
14,
53,
8,
1,
-33,
11,
-1,
-29,
44,
33,
18,
24,
-16,
-7,
-76,
-15,
-51,
28,
-13,
59,
-9,
26,
-35,
-44,
23,
48,
-2,
17,
-2,
8,
-28,
15,
-5,
-40,
-2,
17,
63,
49,
1,
-2,
8,
-20,
-45,
23,
-9,
-13,
2,
37,
-2,
38,
0,
22,
-35,
39,
-4,
50,
-2,
-9,
20,
9,
12,
7,
33,
7,
-3,
42,
-17,
38,
-13,
35,
-18,
3,
-18,
-7,
76,
21,
-3,
13,
40,
-23,
-11,
48,
-9,
-25,
34,
-10,
-14,
4,
39,
14,
1,
-27,
-45,
22,
-20,
16,
-49,
-10,
-44,
29,
18,
-6,
50,
4,
32,
0,
-2,
17,
-60,
9,
-11,
20,
-10,
49,
-8,
-34,
48,
-33,
-10,
16,
-10,
-44,
-3,
34,
2,
0,
0,
8,
-18,
9,
23,
-14,
29,
-27,
-31,
-43,
-25,
17,
-34,
22,
59,
-40,
-25,
52,
9,
2,
47,
-50,
16,
33,
-3,
-14,
7,
-58,
-30,
14,
-32,
9,
-21,
-25,
-51,
-48,
-17,
18,
-1,
0,
3,
-9,
49,
-12,
0,
-27,
-6,
10,
44,
29,
-34,
-20,
23,
28,
-8,
0,
-11,
18,
29,
-7,
25,
22,
-26,
-70,
0,
-1,
2,
21,
-47,
-6,
-20,
-10,
-83,
-16,
42,
-25,
10,
-16,
-25,
-17,
24,
-13,
-17,
-9,
42,
-1,
-26,
-49,
-5,
33,
-34,
-41,
-1,
21,
7,
42,
-16,
12,
-9,
-16,
17,
41,
54,
-28,
2,
-41,
5,
24,
-6,
-25,
-9,
-6,
-9,
-26,
-54,
29,
-51,
38,
-27,
-9,
30,
0,
19,
-23,
41,
-22,
-10,
17,
5,
-21,
-4,
-33,
11,
-1,
43,
-18,
-43,
52,
-62,
-51,
66,
-19,
-20,
-32,
45,
22,
0,
-34,
1,
-31,
26,
18,
-21,
-35,
11,
-30,
-28,
-20,
8,
-45,
33,
-8,
-54,
19,
-18,
-3,
22,
2,
-18,
-60,
-10,
-34,
-9,
-30,
-60,
-20,
-4,
7,
-11,
-30,
-1,
-29,
16,
-50,
-1,
22,
13,
27,
16,
41,
9,
-5,
-25,
24,
17,
0,
6,
43,
1,
-14,
-38,
-13,
24,
-19,
-48,
5,
-26,
-28,
38,
22,
62,
59,
25,
43,
-18,
44,
2,
-30,
-46,
56,
-9,
23,
1,
16,
-4,
-18,
-19,
-4,
-1,
-3,
-27,
32,
-5,
-7,
14,
-40,
38,
-14,
12,
-6,
-37,
14,
-53,
-40,
-12,
-3,
12,
-19,
-13,
61,
-66,
-44,
31,
-60,
-16,
-16,
-17,
10,
-11,
-25,
35,
-60,
84,
2,
-7,
-25,
-3,
-38,
-2,
-21,
-29,
20,
-20,
-66,
49,
-7,
12,
-65,
-18,
-39,
-18,
12,
8,
0,
61,
10,
-14,
-7,
-8,
0,
61,
-40,
0,
46,
29,
-21,
8,
-1,
-35,
20,
28,
29,
62,
-32,
33,
-16,
13,
-33,
-13,
31,
3,
15,
-2,
1,
-7,
-19,
45,
12,
17,
-21,
-16,
40,
44,
-17,
1,
-4,
15,
-40,
0,
6,
13,
-28,
13,
9,
10,
-5,
-42,
-4,
-7,
2,
11,
18,
3,
16,
-9,
7,
-17,
-11,
-16,
-15,
-40,
5,
6,
40,
-15,
-29,
36,
33,
-28,
-38,
-63,
-14,
41,
-31,
-26,
-22,
-3,
-2,
-7,
42,
-63,
0,
-21,
35,
-12,
20,
22,
-4,
39,
-6,
0,
-35,
27,
-10,
22,
7,
23,
-4,
17,
18,
-18,
24,
-29,
-50,
-11,
-29,
-4,
5,
-54,
3,
-11,
20,
63,
16,
18,
7,
26,
24,
-33,
-28,
15,
-25,
9,
-1,
-10,
-10,
11,
-8,
38,
-7,
-43,
-43,
4,
26,
-2,
29,
-11,
8,
12,
7,
8,
-55,
48,
-22,
9,
5,
4,
31,
-26,
20,
5,
0,
-39,
-31,
26,
9,
34,
16,
13,
-16,
7,
41,
-32,
24,
3,
44,
4,
-46,
35,
67,
-31,
-57,
-32,
-27,
-10,
-34,
-12,
23,
24,
39,
-11,
-31,
18,
-49,
-25,
-13,
14,
15,
79,
-8,
-10,
17,
18,
-48,
1,
-104,
3,
-46,
18,
9,
40,
-46,
22,
6,
-36,
28,
14,
47,
-15,
-7,
-25,
-31,
-73,
-49,
-21,
-1,
6,
-36,
-62,
-18,
-19,
9,
9,
-33,
-77,
2,
-25,
29,
-29,
-72,
-9,
55,
53,
29,
17,
-52,
-38,
-14,
0,
19,
-6,
0,
2,
-19,
28,
15,
10,
17,
-8,
-9,
9,
-3,
5,
-7,
63,
-23,
23,
-6,
8,
38,
-19,
-22,
28,
-13,
-29,
0,
7,
-27,
-8,
51,
3,
7,
-31,
-21,
-4,
22,
-39,
-7,
25,
32,
19,
26,
-34,
4,
13,
-2,
26,
31,
-4,
6,
16,
21,
44,
28,
-9,
74,
4,
-15,
19,
8,
-9,
21,
22,
-15,
-17,
8,
11,
-28,
12,
-4,
-6,
-12,
-11,
-30,
18,
-52,
7,
12,
-16,
-15,
45,
56,
-63,
46,
50,
-5,
-26,
9,
5,
0,
17,
18,
-38,
-3,
6,
-27,
10,
15,
22,
-13,
32,
-3,
-12,
-39,
33,
21,
12,
0,
-15,
-30,
-57,
32,
19,
-52,
-16,
37,
-30,
-71,
-57,
40,
28,
17,
20,
10,
-10,
18,
-6,
49,
-21,
23,
-16,
-30,
1,
27,
16,
-26,
24,
33,
-29,
-15,
21,
28,
31,
-31,
-14,
-8,
-10,
-55,
10,
3,
-28,
19,
-7,
7,
-54,
-5,
20,
19,
24,
-18,
55,
-1,
44,
0,
-4,
12,
-10,
-2,
6,
33,
-20,
-2,
1,
5,
-29,
25,
-1,
0,
2,
-18,
12,
19,
7,
6,
1,
27,
-13,
47,
-5,
22,
-16,
13,
-36,
0,
-4,
-14,
44,
24,
18,
-27,
35,
-5,
-26,
30,
18,
-19,
45,
-32,
-25,
28,
-7,
-54,
21,
36,
-15,
11,
6,
-2,
-39,
9,
47,
-23,
26,
-30,
10,
-29,
-23,
36,
13,
9,
-11,
11,
-33,
19,
40,
46,
-25,
-6,
-19,
-46,
-11,
19,
54,
8,
11,
-4,
2,
11,
32,
5,
35,
47,
-21,
-31,
13,
30,
-17,
-27,
8,
-11,
8,
8,
52,
-26,
-7,
11,
11,
-19,
13,
-7,
-15,
40,
3,
-43,
5
] |
Reid, J.
Defendant as cross-plaintiff appeals, not from that portion of the decree which granted her a divorce on her cross bill, but on the grounds of claimed insufficiency of the award of property to her, want of award to her of one-half interest in undisclosed property of plaintiff (cross-defendant),, want of award of future alimony, further attorney fees and expense money. Plaintiff (cross-defendant) did not appeal.
Until after the filing of the bill, plaintiff had been all his life a resident of Manistee, Michigan. The 2 daughters (the only children) born of the marriage are over 21 years of age. The parties were married October 11, 1921, at Manistee. Plaintiff husband is now 65 years of age; defendant wife is 10 years younger.
The business of plaintiff husband (hereinafter referred to as plaintiff) is that of mortician and undertaker, which was also the business of his father. Plaintiff worked with his father for 18 years and until his father’s death'in 1917. Plaintiff then continued the business for himself, the business being almost wholly low-price funerals. The business kept dropping. In many years he did not make living expenses. The place of business, which was also the residence of the parties, burned, January 24, 1951. The parties separated immediately after the fire and have not lived together since.
The bill was filed February 14, 1951. The hearing began February 14, 1952. After about 2 days had been spent on the hearing, mostly in cross-examination of plaintiff as to assets, claimed by the defendant wife to be concealed and undisclosed by plaintiff, a settlement was announced by Mr. Campbell, attorney for plaintiff, as follows:
“Mr. Campbell: * * * After conferences and after our 2 days of trial on this case, we have arrived at a property settlement, which is as follows:
“The plaintiff, Mike Krus, will pay to Mrs. Krus the sum of $11,682 in cash, and in addition thereto she will have the household furniture and furnishings, except 1 bed and springs that go with it, and 2 old chairs which belonged to Mr. Krus’ parents.
“Mr. Krus to have the policies of life insurance which were exhibited in this case.
“He is to have the real estate on Sixth and Hopkins streets.
“He is to have the Hudson automobile and the Nash hearse, the 1 share of stock, name uncertain (the certificate has been lost and that will have to be restored). * * *
“There is the sum of $6,200 or thereabouts, in the form of a check from the insurance company, arising out of the loss by fire, which occurred in January,
1951. That check is to be delivered to Mrs. Krus to apply on this amount of $11,682. The balance will have to be raised by him from the proceeds of the life insurance policies. * # *
“Mr. Hesslin [attorney for defendant]: The defendant is not fully satisfied with the property settlement, but based upon the proofs submitted and the assets, we realize it is an equitable property settlement.”
The hearing was then held open until April 2, 1952, at which time Mr. Rogoski was by consent substituted for Mr. Hamlin and Mr. Hesslin, as attorney for defendant wife, and proceeded to put in proofs for defendant in support of her cross bill as to her husband’s extreme cruelty and without opposition, took the decree which she has appealed from, the same having been prepared and submitted by her counsel, the right to appeal being reserved. Before signing the decree, the court in his opinion expressed his approval of the settlement but expressly determined it as a matter of his own judgment as an equal division of the assets and found that plaintiff had not been guilty of concealment of property.
During his cross-examination, plaintiff had answered questions concerning his profits from the undertaking business, especially for a period of more than 13 years last preceding the fire of the building and separation of the parties. In the later years of that period plaintiff had placed moneys in life insurance policies and government bonds which were capable of being traced. Plaintiff did not keep a cash account of his receipts and disbursements, except some details of the business. Plaintiff paid his bills with cash. He has no checking account.
Defendant’s counsel cross-examined plaintiff at great length about the various funerals he had had and his profits from each funeral, his investments and where he had kept his money. Defendant argues that there was concealment of assets, mainly from inconsistencies or want of memory of plaintiff, which, however, seem to be only such as a witness would be expected to show who had kept no books of his cash transactions extending over many years.
A careful consideration of the entire testimony convinces us that the trial court reached the correct conclusion.
Defendant cites and relies upon the case of Westgate v. Westgate, 291 Mich 18, to support her claim that she should have had a provision in the decree giving her a half of all undisclosed assets. In that case, however, the husband did not go on the stand and testify as to undisclosed assets indicated by testimony. The Westgate Case is no precedent for such an award in the instant case in which the wife’s counsel went to great lengths to inquire of the husband on the witness stand about any such possible undisclosed and secreted assets. The testimony is convincing that there are no such assets in the instant case. In absence of clear showing of concealed assets, there is no necessity of assigning to defendant an interest therein, a provision that might lead to needless litigation. The testimony does not fairly indicate that plaintiff should have saved up more assets than he is shown to now have on hand.
Defendant was awarded 1/2 of the total assets. She had helped somewhat, in carrying on the business, but her assistance has not been shown to have been nearly equal to plaintiff’s work. The award of'half the assets to her is all that can fairly be made, a distinct advantage being that it is all .paid in cash. Plaintiff, now 65 years of age, is in ill health, requires medical care, has heart trouble and cannot lift anything heavy. From his present employment at Traverse City, he receives his room, board and laundry, no spending money. He could not well pay .any future alimony.
Defendant has had the advice of several competent attorneys' in succession. There is no occasion for allowing for more attorney fees, nor expense money.
The decree appealed from is affirmed. No costs.
Dethmers, C. J., and Adams, Butzel, Carr, Bushnell, Sharpe, and Boyles, JJ., concurred. | [
-7,
37,
-18,
-19,
5,
0,
1,
16,
14,
0,
-16,
-32,
5,
15,
4,
-3,
-19,
-5,
1,
2,
-37,
-1,
-45,
23,
-8,
3,
18,
-57,
-12,
-14,
-43,
6,
-33,
6,
-10,
14,
-34,
-11,
-20,
19,
-42,
-43,
7,
6,
-37,
24,
45,
-13,
26,
29,
-4,
-53,
43,
-6,
5,
14,
30,
23,
19,
-19,
1,
-43,
-15,
30,
36,
-18,
27,
6,
8,
-13,
22,
-24,
-5,
-16,
-37,
-7,
-21,
-4,
-8,
13,
-7,
-17,
37,
12,
-37,
11,
-4,
0,
-34,
38,
-14,
37,
-12,
0,
16,
-37,
36,
36,
-11,
15,
-3,
-11,
-53,
18,
4,
49,
-11,
-3,
10,
17,
36,
-38,
61,
21,
35,
-10,
-28,
-27,
-37,
-22,
-4,
17,
-7,
-43,
51,
39,
-27,
1,
45,
30,
-1,
23,
7,
15,
22,
-38,
10,
-45,
-32,
14,
-11,
23,
-5,
-14,
3,
17,
-45,
-79,
-7,
-53,
-45,
35,
36,
20,
52,
-30,
14,
-46,
14,
-22,
4,
-38,
-10,
-5,
-41,
-28,
33,
46,
-14,
-34,
15,
12,
-49,
-23,
47,
-3,
7,
-45,
-54,
10,
30,
37,
-5,
-21,
46,
-70,
25,
-23,
-13,
36,
58,
-37,
0,
41,
2,
8,
72,
15,
9,
52,
-9,
-30,
10,
36,
7,
-30,
24,
-24,
-27,
-11,
11,
-11,
-9,
-34,
-63,
63,
0,
-19,
-25,
-40,
17,
-49,
29,
6,
-58,
-50,
25,
-33,
71,
-8,
-36,
-6,
-41,
9,
-57,
-12,
0,
-12,
25,
13,
-15,
-29,
8,
-15,
38,
-19,
-28,
-6,
-18,
14,
-34,
-12,
-7,
36,
49,
0,
-23,
22,
-5,
35,
-27,
-8,
-50,
-5,
20,
-5,
3,
-45,
11,
-22,
38,
-7,
29,
21,
-3,
-52,
-27,
68,
22,
2,
0,
17,
-63,
-19,
6,
15,
-26,
-26,
4,
-15,
30,
-18,
22,
-49,
43,
-17,
9,
-20,
-24,
7,
7,
-11,
2,
-28,
23,
-45,
-27,
-42,
-52,
36,
9,
-57,
33,
9,
64,
14,
-64,
5,
-19,
3,
49,
-6,
-38,
43,
-52,
24,
16,
6,
1,
19,
-63,
37,
-16,
-23,
-7,
-30,
22,
54,
-4,
-12,
-10,
-10,
7,
-26,
-30,
-38,
14,
0,
-30,
25,
-35,
-14,
-10,
35,
-15,
17,
41,
-23,
-21,
37,
48,
10,
-2,
7,
0,
3,
-13,
-51,
3,
57,
18,
14,
-34,
16,
-1,
-18,
-40,
47,
0,
46,
12,
-43,
7,
48,
-6,
59,
-15,
-38,
-12,
23,
-23,
6,
36,
-29,
20,
-26,
-5,
1,
-67,
14,
-10,
47,
19,
0,
-33,
-5,
-3,
12,
10,
29,
-23,
-3,
41,
-9,
35,
7,
2,
-25,
0,
22,
40,
17,
39,
-40,
14,
-56,
33,
-35,
28,
4,
-38,
55,
56,
-10,
37,
0,
-22,
45,
-50,
22,
4,
34,
0,
0,
-24,
13,
-82,
0,
45,
9,
46,
14,
0,
9,
-42,
-18,
7,
1,
20,
-17,
9,
-19,
-29,
-8,
72,
-47,
2,
31,
29,
-12,
-1,
-15,
-11,
-9,
2,
13,
39,
-46,
-7,
-5,
-15,
42,
-48,
45,
-24,
-7,
2,
-5,
-23,
-20,
34,
-11,
-35,
24,
-8,
-20,
-8,
9,
15,
-55,
-59,
-19,
16,
10,
27,
-16,
-15,
10,
1,
-3,
-13,
-8,
28,
24,
-95,
15,
40,
53,
29,
8,
37,
-1,
28,
30,
8,
-40,
29,
-13,
-9,
22,
-24,
-13,
35,
16,
4,
20,
-19,
15,
7,
-25,
-31,
15,
9,
-20,
-9,
30,
27,
-25,
-35,
-17,
0,
-57,
0,
3,
-21,
-4,
25,
19,
-45,
-15,
60,
-53,
16,
-6,
10,
-44,
0,
-29,
13,
33,
-13,
19,
53,
-48,
30,
14,
-39,
-13,
-50,
60,
22,
-10,
5,
19,
-6,
-22,
1,
48,
0,
48,
-28,
55,
-7,
14,
24,
-24,
4,
-25,
-14,
-17,
10,
-47,
-30,
-32,
-4,
33,
-3,
34,
50,
5,
35,
20,
-43,
-46,
14,
17,
-15,
-32,
-2,
8,
-3,
40,
3,
-42,
20,
-15,
49,
25,
26,
36,
43,
-29,
17,
31,
16,
45,
5,
16,
0,
-47,
-31,
46,
15,
23,
-41,
22,
0,
-36,
-13,
-67,
-13,
16,
-10,
21,
-6,
2,
57,
-6,
-48,
-30,
22,
-32,
-6,
95,
-43,
1,
17,
1,
11,
19,
-42,
-4,
28,
-17,
48,
-8,
-83,
10,
47,
38,
2,
-29,
8,
28,
7,
-14,
0,
15,
-19,
15,
-25,
-54,
-27,
-7,
-12,
23,
-22,
42,
81,
-4,
-28,
20,
14,
-12,
-14,
31,
45,
0,
47,
-12,
-37,
-14,
46,
-42,
-50,
42,
-4,
-60,
8,
-46,
-7,
-6,
-15,
-24,
16,
0,
44,
-16,
15,
-22,
9,
18,
-3,
-36,
1,
48,
-31,
-17,
-22,
39,
0,
-5,
-16,
29,
-44,
-37,
18,
-13,
43,
-11,
-17,
24,
47,
-1,
0,
-2,
-5,
-21,
-19,
-29,
10,
26,
-19,
11,
-2,
-14,
55,
-23,
-18,
-2,
-53,
35,
-75,
-35,
-16,
-6,
-23,
-11,
8,
12,
-19,
-45,
15,
-22,
-14,
-10,
56,
-40,
11,
12,
-34,
-25,
57,
-53,
-24,
-7,
-13,
-32,
59,
-33,
12,
28,
19,
-10,
31,
24,
-46,
0,
-35,
20,
14,
-14,
0,
-29,
-49,
6,
-41,
-6,
-11,
39,
4,
-3,
-37,
39,
-4,
-37,
-12,
15,
-35,
-8,
18,
-40,
-22,
38,
-31,
1,
22,
-18,
-2,
-6,
17,
-10,
-40,
53,
15,
11,
34,
0,
-33,
4,
5,
-34,
-3,
15,
-2,
-31,
-22,
-4,
21,
-4,
0,
0,
-36,
-54,
-9,
23,
1,
0,
21,
11,
-14,
-44,
-37,
14,
-39,
-19,
29,
-18,
31,
-5,
0,
1,
4,
35,
-21,
-2,
80,
-21,
-26,
14,
-17,
74,
9,
-57,
-34,
-11,
15,
26,
24,
-16,
-15,
46,
30,
24,
55,
-37,
-57,
-26,
14,
21,
14,
-5,
19,
2,
-17,
1,
2,
21,
-27,
22,
3,
6,
-39,
24,
24,
25,
40,
-14,
-60,
74,
5,
18,
5,
10,
20,
-33,
-9,
-15,
19,
-4,
-1,
-48,
-24,
-22,
42,
0,
29,
-32,
-38,
27,
-3,
0,
-8,
24,
-8,
12,
-4,
26,
-19,
20,
-13,
30,
-2,
36,
17,
-65,
25,
64,
15,
-7,
-42,
-25,
-8,
-34,
-5,
9,
46,
-20,
0,
-7,
-15,
17,
-13,
53,
2,
18,
15,
4,
-36,
17,
55,
27,
23,
34,
-14,
-29,
0,
1,
-20,
-12,
-3,
1,
37,
11,
30,
-39,
0,
45,
14,
14,
-19,
30,
21,
-15,
-5,
25,
-50,
-7,
-23,
-33,
-4,
31,
18,
19
] |
Dethmers, C. J.
A writ of habeas corpus, with ancillary writ of certiorari, issued to inquire into the legality of plaintiff’s detention in State prison.
Plaintiff’s petition and defendant’s answer and return disclose pertinent facts as follows: Plaintiff was sentenced on February 28,1930, to serve a prison ■term of not less than 2 nor more than 15 years. On April 18, 1932, he was paroled to Cook county, lili nois, to report there to Dr. F. Emery Lyon,: of the Central Howard Association, as first friend and adviser and to work for A. M. Schaffer at the G.M.S. Finance Company in Chicago. Although he falsely reported to Dr. Lyon on April 19, 1932, that he had done so, he never actually went to work for Schaffer nor did he at any time thereafter make monthly reports to Dr. Lyon, all as required by the terms of his parole. On July 28, 1932, Dr. Lyon advised the Michigan supervisor of paroles concerning plaintiff’s violation of parole and on October 23, 1933, a warrant therefor was issued fixing the date of plaintiff’s delinquency as of April 30, 1932. After being advised of the parole violation Michigan authorities heard nothing from or about plaintiff, nor were they aware of his whereabouts, until June 5, 1947, at which time they received from Illinois authorities a transcript of plaintiff’s criminal record, which, together with his subsequent admissions, disclosed that after his Michigan parole he had committed 3 different felonies in Illinois for which he was, in each instance, sentenced to prison in Illinois, the last sentence having been imposed on March 21, 1947, for a term of not less than 3 nor more than 5 years. On June 30,1947, Michigan authorities caused a second warrant for violation of parole to issue, again fixing the date of plaintiff’s delinquency as of April 30, 1932. On December 20, 1950, when plaintiff completed his last term of imprisonment in Illinois, he was released to Michigan authorities, after extradition proceedings were duly had. On December 28r 1950, he was returned to custody at the State' prison at Jackson where he still remains.
Claims concerning alleged illegality of his return to Michigan, made in his petition, have since been abandoned by plaintiff. The sole question presented here is whether plaintiff may be required, for violation of parole, to serve the remainder of his sentence after February 28, 1945, the expiration date of Ms máximum term as originally imposed by the court.
Plaintiff insists that he may not be required to serve after the expiration date of his original maximum sentence, citing Commonwealth, ex rel. Tate, v. Burke, 364 Pa 179 (71 A2d 241). Decision in that •case was controlled by what the court found to be the clear, unambiguous provisions of the Pennsylvania statute. There is no similarity between its provisions and those of the Michigan statute on the point in controversy.
Plaintiff also quotes from the syllabus and opinion of the United States District Court, N.D. Illinois, E.D. in United States, ex rel. Howard, v. Ragen, 59 F Supp 374, the following:
“The parole officers of State of Illinois in exercising right to reimprison parolee who has violated terms of his parole may not withhold such action indefinitely and exercise it at some remote time, since exercise of such power at whim or caprice' of parole officers would deprive parolee of ‘due process of law.’ ” (Syllabus 3.)
1 “It is obvious that such a power cannot coexist with due process of law because under it the liberty of a citizen is not dependent upon any process of law whatsoever, but only the whim or caprice of the parole board in its decision to imprison or not imprison a parole violator.”
Decision in that case, by a trial court, was predicated on the admission that the Illinois authorities, at different times during the 15-year period between petitioner’s parole violation and his ultimate arrest therefor, knew of his whereabouts and could have taken him into custody but, upon inquiry by other States, declined to incur the expense of doing so. In the instant case, although plaintiff speculates that Michigan authorities must have had notice of his several imprisonments from time to time in Illinois and conld have filed detainers against him on those occasions and taken him into custody upon his release from prison there, and contends that certain exhibits in the case substantiate his claim in that regard, nevertheless the record before us discloses nothing to controvert the allegation in defendant’s answer and return that after plaintiff’s parole violation in April of 1932 “nothing was heard of petitioner, from him, or others, until June 5, 1947.” His arrest by Michigan authorities followed at the first opportunity thereafter when he became available to them upon release from prison in Illinois. As distinguished from United States, ex rel. Howard, v. Ragen, supra, there was no indefinite withholding of action by Michigan authorities nor was plaintiff’s liberty made to depend upon their whim or caprice. The 18-year delay in plaintiff’s arrest for parole violation was occasioned by his own actions alone, namely, failure to report and keep Michigan authorities advised as to his whereabouts, as required by the terms of his parole, and his concealment thereof from them. Accordingly, the long period of inaction followed by plaintiff’s eventual arrest and imprisonment did not constitute a denial of due process. That the statute (hereinafter considered), under which the Michigan authorities proceeded, and Michigan Constitution of 1908, art 5, § 28, authorizing its enactment, are not in conflict with article 6, clause 2, or the Fourteenth Amendment of the Constitution of the United States was held by this Court in Re Holton, 304 Mich 534.
People v. Felker, 61 Mich 110, and In re Allison, 322 Mich 491, cited by plaintiff, are not in point.
In 1930, when the crime was committed and the original sentence imposed, and in 1932 when the violation of parole occurred, the applicable statute in effect was CL 1929, § 17525, which read as follows:
“A convict violating the provisions of his parole and for whose return a warrant has been issued by the warden or superintendent shall, aftejr the issuance of such .warrant be .treated as an escaped prisoner owing service to the State, and shall be liable, when arrested, to serve out the unexpired portion of his maximum imprisonment, and the time from the date of his declared delinquency to the date of his arrest shall not be counted as any part or portion of the time to be served.” (Italics supplied.)
The above section was repealed by PA 1937, No. 255, but chapter 3, § 8, of the latter contained provisions almost identical thereto, which, in turn, were retained in chapter 2, § 36 (CL 1948, § 791.36 [Stat Ann 1951 Cum Supp § 28.2176]) of PA 1947 (2d Ex Sess), No 4, which repealed said Act 255. The effect of the-quoted statutory provisions has been considered by this Court in Re Holton, supra, and In re Davis, 312 Mich 154. In Holton we held that the time following the date of petitioner’s parole violation became-so-called “dead time,” that such “dead time” ended,, after issuance of a warrant for the parole violation, when the authorities had it in their power to place-petitioner in actual confinement therefor, in State-prison, and that the “dead time * * * should not be credited to the remainder of petitioner’s sentence.” In Davis we said:
“The time from the date of his declared delinquency, May 4, 1942, to the date of his voluntary surrender, April 27, 1943, is considered Mead time’ and should not be credited to the remainder of petitioner’s sentence.”
The portion of the quoted statutory provisions set forth in italics clearly makes plaintiff liable to serve-out-the unexpired portion of his maximum imprisonment and eliminates from the computation thereof the period from his parole violation to the time'of his. arrest therefor. Accordingly, he was liable to serve, after his arrest in December of 1950, for a period of time equal to that portion of his original maximum term which remained unserved on the date of his parole violation in April of 1932. Consequently, plaintiff is not, at this time, entitled to be released.
Writ dismissed.
Adams, Btjtzel, Carr, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
25,
-2,
63,
37,
-61,
-24,
-66,
-40,
-62,
-8,
-59,
0,
-24,
12,
7,
-12,
11,
33,
-8,
-20,
-34,
9,
31,
43,
-8,
-43,
39,
61,
-5,
-4,
4,
38,
24,
-11,
8,
-22,
106,
-46,
84,
25,
-20,
-4,
3,
-38,
-51,
-3,
-13,
3,
13,
-22,
-5,
18,
26,
45,
-12,
9,
-33,
-44,
-23,
16,
-15,
1,
0,
1,
-21,
-10,
16,
13,
-18,
-24,
20,
-21,
-24,
-8,
-38,
4,
17,
-12,
29,
3,
4,
-3,
-15,
0,
30,
6,
29,
-35,
24,
-11,
-5,
-6,
-52,
-26,
33,
-47,
-34,
7,
-2,
-25,
-5,
-17,
-76,
-3,
59,
12,
-12,
-18,
-44,
28,
22,
-6,
33,
34,
-11,
-57,
-65,
-53,
4,
7,
-6,
-48,
-13,
22,
11,
-15,
-17,
16,
60,
36,
18,
51,
-2,
11,
-76,
-16,
-5,
11,
15,
-12,
-21,
-3,
18,
-21,
36,
-10,
-47,
32,
30,
-17,
-50,
24,
-3,
37,
-6,
51,
5,
-27,
-41,
38,
-8,
-18,
0,
-21,
12,
-54,
-31,
-14,
19,
-11,
-29,
44,
0,
13,
-1,
-19,
-32,
22,
19,
-2,
-22,
43,
5,
-44,
-56,
-19,
-31,
-6,
-33,
-5,
11,
18,
-3,
19,
-7,
32,
-13,
12,
25,
16,
-5,
-14,
36,
-13,
-22,
-4,
52,
17,
3,
12,
-19,
-19,
51,
-3,
-34,
-21,
39,
-19,
15,
4,
-44,
-18,
32,
37,
60,
-34,
34,
36,
-12,
-43,
22,
-3,
15,
37,
-5,
-36,
55,
10,
40,
49,
-47,
-16,
16,
-1,
43,
35,
-13,
-19,
-17,
9,
-24,
0,
-19,
-27,
-53,
-40,
-3,
-22,
-11,
11,
-31,
5,
7,
16,
-20,
24,
15,
14,
2,
25,
-19,
-23,
7,
-1,
-3,
-5,
-7,
24,
53,
16,
42,
11,
-21,
22,
23,
-38,
27,
-37,
-20,
-8,
10,
-28,
-23,
1,
57,
10,
25,
-34,
3,
33,
-10,
10,
-16,
-20,
10,
-33,
14,
35,
6,
-41,
38,
10,
15,
-24,
-9,
22,
16,
-24,
19,
0,
-41,
51,
-22,
-57,
36,
7,
-16,
22,
-7,
-2,
-3,
-6,
-42,
21,
-10,
26,
-11,
-27,
-11,
-3,
-13,
-22,
-12,
20,
-14,
10,
-4,
11,
-4,
-19,
9,
11,
-1,
32,
-13,
18,
2,
-42,
-2,
47,
16,
-36,
2,
22,
-2,
-13,
-35,
-66,
37,
26,
-7,
19,
-20,
11,
-39,
22,
-3,
7,
-55,
52,
-30,
23,
25,
28,
15,
-74,
-19,
-38,
14,
-7,
-68,
26,
-20,
-34,
-38,
4,
28,
-21,
24,
-50,
-35,
26,
63,
26,
32,
-8,
9,
27,
16,
30,
5,
-12,
46,
22,
53,
-2,
-8,
-36,
7,
-52,
42,
23,
36,
-33,
39,
32,
14,
-8,
0,
21,
33,
16,
40,
-17,
21,
-6,
-27,
-15,
14,
-18,
-13,
-1,
-6,
7,
20,
-18,
1,
-7,
15,
-75,
-25,
1,
-21,
-10,
-36,
24,
-7,
50,
1,
-45,
-8,
-38,
-3,
3,
3,
11,
-29,
-24,
0,
29,
11,
-5,
-50,
22,
-63,
-1,
45,
17,
-2,
9,
-19,
-13,
-13,
-33,
-19,
29,
27,
-42,
-51,
26,
-27,
-3,
9,
39,
-30,
69,
-26,
21,
8,
61,
-24,
-11,
-2,
59,
26,
-28,
37,
-27,
35,
-11,
17,
-38,
-22,
51,
-40,
-29,
5,
-56,
20,
25,
27,
16,
37,
21,
-4,
36,
60,
-42,
11,
28,
21,
-45,
-43,
24,
21,
13,
-13,
-6,
-14,
-31,
39,
-1,
32,
0,
10,
-11,
12,
-14,
-7,
-36,
0,
0,
-8,
-15,
-18,
-45,
-12,
-10,
14,
-24,
-3,
30,
21,
-1,
-20,
-2,
0,
48,
0,
-26,
13,
53,
8,
-15,
16,
26,
6,
4,
16,
-29,
49,
15,
-43,
-27,
-25,
26,
31,
4,
31,
-9,
-1,
4,
-9,
-45,
-10,
21,
-25,
50,
49,
14,
0,
-12,
-2,
0,
27,
-18,
-9,
6,
34,
-41,
7,
-1,
-25,
10,
-36,
0,
-48,
-21,
-82,
65,
-5,
-52,
3,
47,
-26,
-38,
15,
-64,
-21,
7,
60,
-8,
-13,
21,
5,
-9,
-20,
30,
2,
11,
0,
20,
-22,
-31,
-40,
23,
33,
-22,
-20,
-10,
0,
8,
2,
14,
13,
-4,
29,
-26,
6,
-1,
-27,
28,
-68,
-7,
35,
14,
9,
6,
9,
36,
43,
-17,
-10,
-29,
-24,
-25,
0,
-12,
75,
-22,
-25,
32,
-38,
29,
2,
13,
0,
24,
26,
34,
-26,
30,
7,
11,
5,
-9,
28,
-3,
34,
36,
-37,
21,
-18,
12,
-62,
-15,
16,
-12,
-12,
-7,
-7,
-9,
18,
5,
-20,
5,
43,
-24,
-18,
5,
-47,
-55,
22,
34,
33,
2,
-24,
-11,
-10,
-16,
53,
-15,
-17,
-22,
31,
7,
-10,
-15,
-57,
33,
5,
-6,
-37,
-9,
-11,
-23,
30,
11,
14,
8,
18,
20,
-14,
21,
-16,
21,
22,
-27,
-56,
25,
-13,
76,
-31,
-32,
-34,
23,
-6,
-25,
59,
18,
-42,
-42,
12,
-4,
8,
18,
-14,
55,
34,
-19,
-48,
41,
-41,
19,
40,
12,
-26,
23,
9,
-25,
-13,
-31,
-24,
6,
24,
37,
39,
-2,
7,
-2,
31,
23,
8,
-7,
17,
-10,
34,
-28,
-2,
36,
-19,
23,
-32,
20,
15,
24,
11,
-27,
32,
0,
9,
-17,
7,
28,
19,
49,
5,
-9,
18,
-46,
24,
8,
53,
54,
15,
-33,
-5,
3,
-46,
23,
3,
-24,
31,
-40,
8,
0,
10,
-2,
3,
-22,
31,
21,
-44,
6,
-43,
18,
27,
-22,
5,
-52,
2,
-4,
-51,
-83,
45,
-27,
29,
-64,
33,
1,
13,
-3,
14,
11,
-42,
16,
11,
6,
22,
-14,
-24,
2,
24,
21,
46,
3,
9,
-45,
-25,
-2,
-33,
30,
-34,
8,
-63,
-20,
-21,
19,
1,
18,
26,
-4,
-8,
-9,
2,
-12,
2,
15,
-50,
12,
-40,
1,
-41,
1,
-21,
-42,
-5,
39,
22,
-92,
-12,
15,
15,
7,
4,
34,
26,
27,
-28,
56,
-36,
-6,
-35,
-18,
9,
13,
50,
-32,
2,
40,
-25,
-43,
-65,
10,
-7,
75,
1,
-49,
-34,
9,
-40,
-33,
40,
33,
-60,
-2,
23,
7,
-5,
-64,
-20,
-15,
-7,
32,
25,
57,
-5,
-29,
-24,
8,
-36,
16,
-58,
2,
26,
-23,
-18,
11,
13,
-18,
25,
0,
-49,
38,
6,
-45,
9,
25,
-72,
-12,
37,
-7,
50,
43,
1,
15,
15,
-51,
-15,
38,
-23,
-40,
5,
0,
40,
-23,
-35,
0,
-39,
19,
19,
-9,
-1,
-11,
-3,
13,
-8,
4,
-18,
-4,
-3,
30,
11,
38
] |
Dethmers, C. J.
In 1945, plaintiff sought divorce on the ground of defendant’s extreme cruelty. On or about October 1,1946, after hearing on the merits, a decree was entered dismissing plaintiff’s bill of complaint. Plaintiff commenced the instant suit on June 5, 1948, again charging extreme cruelty of the character alleged in the previous suit; the case was heard on the merits in October of 1951 and in May of 1952 decree entered dismissing plaintiff’s bill of complaint and requiring him to pay defendant’s attorney a $1,500 fee. Plaintiff appeals.
Plaintiff claims that when decree dismissing his first suit entered he went back to the home of parties to live with defendant, and sought reconciliation and restoration of normal marital relations with her until December 1, 1946; that during that 2-month period defendant refused to cook or perform household ■duties for him, to associate or have marital relations with him and told him that she had no feelings, love or affection for him; that on said December 1st, because of her cruelty, he left his home and wife and moved to a separate abode. It is not shown that plaintiff ever thereafter requested defendant to come and live with him there.
Defendant denied plaintiff’s charges against her and testified, on the contrary, that during said 2-month period she did prepare meals for plaintiff, which he refused to eat; that she performed her domestic and household duties for him and that she was willing and indicated her willingness to have marital relations with him, but that he did not so desire; that she attempted reconciliation by direct approach to him, and, after he left the home, by letter, by telephone, and by enlisting the aid of friends to intercede with him in her behalf; that she still loved him and wanted him to come back to her. The trial court accepted defendant’s version of the facts and rejected that of plaintiff.
Plaintiff’s charges of extreme cruelty on the part of defendant relate to 3 periods. The first antedates the decree dismissing plaintiff’s previous suit for divorce. Plaintiff claims that the court erred in refusing to consider alleged grounds for divorce occurring before the previous decree. The trial court was correct. Herp v. Herp, 254 Mich 33.
Next is the 2-month period following the decree dismissing the first suit and extending to December 1, 1946, when plaintiff left home and wife for a separate abode. We cannot say, on an examination of the entire record, that, had we been in the position of the trial judge, we would have found otherwise than he did with respect to the conflicting claims of parties concerning the conduct of each during that period. The trial judge heard the witnesses, observed their demeanor and was in the best position to determine their credibility and to conclude what the facts in the case really were.
Plaintiff also urges as grounds for divorce defendant’s failure to perform domestic, household or marital duties for him during the third period, from December 1, 1946, when he left home and wife, until the hearing herein in October of 1951. He cannot be heard to complain of her failures in that regard which naturally resulted from his absenting himself from his home and wife, for reasons which the trial court found unjustifiable, and declining to take her to live with him in his new abode. Her failure, as plaintiff alleges, to visit him during that period or to call him on the telephone, write him letters or send him Christmas or birthday cards is matched by his like neglect in that regard and scarcely constitutes grounds for divorce.
Nothing in the record persuades us that the trial court erred in fixing attorney’s fees.
Decree affirmed, with costs to defendant.
Adams, Butzel, Carr, Bushnell, Sharpe, Boyles, .and Reid, J J., concurred. | [
-19,
-1,
37,
22,
-93,
-83,
-72,
-19,
-18,
-5,
-71,
-3,
-38,
23,
20,
-16,
12,
-41,
-10,
-17,
-54,
32,
-10,
23,
28,
29,
6,
-32,
-17,
-37,
-16,
26,
-25,
2,
16,
-50,
46,
-17,
30,
57,
17,
-68,
41,
-29,
0,
9,
22,
17,
-36,
0,
-33,
-24,
17,
3,
10,
-6,
-36,
11,
-18,
-4,
-22,
17,
-36,
-2,
-18,
-13,
16,
-1,
-9,
-25,
40,
-59,
-13,
-29,
-60,
-58,
9,
-18,
29,
22,
27,
9,
15,
-21,
6,
12,
27,
33,
-60,
38,
-13,
52,
-26,
-20,
-15,
-21,
-16,
15,
40,
0,
-42,
-25,
-34,
28,
10,
65,
13,
-6,
-72,
7,
41,
5,
48,
54,
22,
-30,
-55,
-80,
-44,
-42,
38,
21,
17,
0,
50,
6,
-41,
-39,
40,
30,
-29,
52,
40,
0,
-18,
-69,
-12,
-67,
-40,
-89,
13,
2,
7,
-17,
30,
1,
-22,
-5,
-12,
24,
-47,
11,
-24,
17,
49,
3,
-8,
-62,
-31,
-17,
4,
-7,
-2,
2,
37,
-44,
-33,
41,
-3,
-36,
13,
18,
-47,
20,
29,
25,
-19,
-2,
-45,
13,
10,
40,
-12,
-67,
-22,
-2,
-25,
-10,
-62,
27,
24,
-55,
10,
1,
55,
20,
-12,
51,
44,
21,
-4,
-38,
5,
-18,
10,
-3,
38,
9,
19,
-21,
-40,
-16,
31,
-24,
-62,
-34,
6,
-55,
-28,
44,
13,
-48,
25,
28,
-37,
-22,
18,
18,
55,
-1,
-32,
38,
-31,
14,
1,
-26,
2,
42,
35,
22,
-60,
-24,
3,
19,
16,
31,
-21,
55,
5,
36,
13,
42,
1,
30,
17,
-5,
-15,
-8,
59,
29,
-16,
-2,
31,
17,
-16,
21,
11,
19,
30,
-38,
41,
-8,
18,
3,
20,
-10,
-47,
24,
13,
7,
-4,
26,
-30,
-20,
22,
-8,
22,
-9,
19,
-3,
36,
-56,
-32,
-38,
16,
1,
9,
-20,
-17,
22,
-2,
-70,
21,
-7,
-4,
-35,
13,
-11,
-24,
-47,
17,
-33,
32,
-39,
45,
11,
-27,
21,
-25,
-24,
34,
-3,
-30,
11,
-21,
-12,
-20,
10,
-13,
12,
-30,
49,
-18,
-14,
18,
-6,
-68,
-11,
-15,
-9,
-8,
-32,
-20,
64,
-12,
30,
36,
14,
2,
21,
-16,
-10,
19,
25,
-29,
35,
4,
-69,
-8,
10,
-13,
-9,
-43,
-1,
-2,
11,
31,
-55,
20,
55,
-6,
17,
3,
-14,
-23,
34,
17,
33,
-12,
83,
0,
-17,
-1,
48,
26,
49,
-20,
-61,
17,
-15,
-18,
-4,
38,
-31,
34,
0,
-10,
-49,
-30,
37,
-21,
-16,
10,
16,
19,
19,
48,
-15,
2,
29,
30,
-61,
20,
7,
25,
-8,
11,
-5,
39,
-4,
43,
23,
24,
4,
14,
-21,
-16,
-71,
35,
55,
-2,
22,
42,
-7,
37,
16,
-6,
9,
-35,
20,
-34,
29,
30,
3,
4,
14,
16,
-8,
3,
-43,
-4,
-40,
15,
7,
-26,
-24,
1,
48,
1,
-15,
30,
11,
-26,
-43,
19,
0,
-32,
-1,
-38,
19,
42,
-31,
2,
60,
-30,
55,
17,
-2,
-10,
-25,
-17,
9,
6,
-27,
0,
37,
-4,
-88,
-8,
-31,
-22,
13,
5,
70,
-49,
-1,
-30,
24,
-61,
10,
-32,
-15,
51,
30,
36,
-18,
-8,
33,
13,
18,
-25,
-61,
41,
-1,
-19,
3,
38,
5,
2,
5,
-18,
16,
42,
-13,
-16,
-14,
61,
-43,
-17,
20,
50,
10,
-26,
-15,
10,
50,
-5,
-19,
25,
-36,
-16,
2,
42,
6,
45,
21,
6,
-8,
-44,
51,
25,
-17,
-3,
13,
18,
1,
-3,
22,
-5,
-8,
22,
-27,
17,
30,
-9,
-24,
20,
32,
-9,
0,
6,
37,
11,
-7,
25,
51,
-19,
10,
-25,
4,
16,
-14,
-13,
22,
-38,
-36,
34,
39,
35,
19,
-11,
-15,
26,
-5,
23,
-43,
-34,
1,
14,
-10,
-10,
-51,
-25,
-32,
-17,
17,
-43,
36,
-1,
-24,
12,
-22,
-29,
8,
-10,
-12,
-19,
-44,
-33,
26,
7,
-17,
7,
-11,
-18,
-37,
45,
20,
-28,
-8,
21,
-9,
59,
28,
-21,
9,
24,
27,
1,
-7,
-24,
52,
-43,
9,
-62,
15,
0,
-64,
-24,
-23,
-5,
43,
-21,
27,
10,
-8,
67,
-68,
-36,
2,
-65,
-44,
-32,
15,
-11,
-11,
22,
23,
-70,
-1,
-25,
13,
52,
11,
3,
-8,
-49,
-6,
57,
-2,
-9,
-16,
23,
22,
-51,
44,
83,
16,
-2,
11,
-26,
-41,
-32,
-8,
-4,
47,
32,
7,
23,
55,
-21,
12,
-5,
-10,
-36,
21,
-19,
7,
12,
-12,
-12,
22,
5,
-83,
-24,
-5,
60,
-5,
-5,
4,
-17,
19,
42,
5,
14,
-9,
-15,
-16,
32,
-34,
47,
27,
-5,
-11,
-33,
35,
-13,
6,
-17,
30,
15,
6,
-14,
-39,
-10,
-9,
-14,
-14,
21,
13,
-1,
-9,
25,
-16,
20,
-4,
27,
-29,
-39,
-1,
9,
48,
-33,
-54,
-20,
0,
60,
-47,
58,
-16,
-52,
-46,
15,
-52,
-38,
-26,
-7,
16,
31,
-36,
-64,
-19,
-32,
5,
43,
-7,
67,
28,
21,
-2,
-23,
-43,
-11,
-27,
10,
31,
-1,
-34,
-3,
-17,
42,
71,
-1,
21,
-10,
21,
-8,
0,
-41,
11,
-9,
10,
-9,
-9,
11,
42,
-16,
-5,
-5,
19,
32,
-23,
-16,
68,
21,
-21,
-13,
10,
35,
-68,
62,
-32,
64,
33,
-31,
-1,
14,
30,
-42,
26,
-9,
-25,
15,
0,
74,
31,
62,
16,
36,
-16,
36,
-14,
-40,
33,
-2,
-5,
-21,
7,
-10,
-62,
-48,
-30,
-33,
-54,
39,
20,
6,
-28,
68,
-19,
36,
-40,
-20,
-32,
-30,
22,
28,
-33,
23,
-22,
-10,
-31,
-55,
27,
-14,
28,
27,
1,
-41,
-1,
35,
42,
41,
-14,
-38,
-5,
-23,
-2,
-50,
-3,
-43,
10,
62,
-2,
8,
-39,
-30,
7,
5,
18,
35,
13,
-2,
5,
37,
8,
30,
55,
7,
-52,
-4,
-22,
17,
-1,
-1,
-28,
4,
-17,
-4,
52,
52,
-45,
-47,
-25,
-8,
27,
1,
-3,
31,
38,
-29,
-36,
0,
-11,
27,
12,
17,
-21,
6,
48,
-37,
43,
22,
0,
-1,
-1,
32,
8,
-5,
-42,
-4,
-6,
14,
20,
-3,
-1,
25,
46,
-26,
0,
-2,
-14,
-36,
-28,
-36,
-19,
2,
16,
-22,
-29,
29,
-8,
-28,
9,
-20,
-20,
-12,
10,
-45,
-29,
43,
-1,
29,
50,
21,
-2,
35,
-35,
20,
29,
-104,
-31,
10,
5,
31,
-28,
35,
34,
-40,
13,
19,
40,
21,
32,
-41,
29,
-43,
-24,
-36,
-59,
3,
1,
12,
20
] |
North, J.
This is a petition for habeas corpus and for ancillary certiorari filed in behalf of Lee F. Collins by 1 of her 2 “duly authorized agents and attorneys.” We shall refer to Lee F. Collins as the petitioner. On April 10, 1945, she filed a bill for divorce from Thom Collins, alleging that a common-law marriage was consummated between herself and defendant in May, 1939. The defendant filed an answer and cross bill. Subsequently the parties were before the circuit court on a motion by defendant to dismiss the plaintiff’s bill of complaint, and also a motion to dismiss the cross bill. At the hearing of these motions it seemingly came to the attention of the trial judge, who had before him the court file in a former divorce wherein petitioner was plaintiff, that she was formerly married to one Charlie Norris ; that in July, 1943, the petitioner herein, as Lee F. Norris, filed a bill for divorce from Norris and obtained a decree of divorce from him in January, 1944, in the same court where the instant case was pending; and it further appeared in petitioner’s bill for divorce in the instant case that under oath she alleged she became the common-law wife of Collins in May, 1939. From the foregoing it is obvious that plaintiff claimed in her pending divorce case that she and Collins consummated a common-law marriage while she was the lawful wife of Norris. On being called as a witness and examined by the court, petitioner admitted the facts above noted. Possibly sensing that it was preliminary to charging petitioner with contempt of court, her counsel, at the time she was called to testify, made the following objection:
“Your Honor, I object to any hearing upon any matter, unless I have the petition and know what I have to answer.”
At the conclusion of the hearing, by consent of counsel, the motions, above noted, were granted. As pertaining to the contempt proceedings the circuit judge made on the record the following statement:
“It is the conclusion of this court that Lee F. Collins, when she filed her bill of complaint against Thom Collins, on April 10, 1945, in Chancery No 375,128, knew exactly what she was doing; that she perjured herself when she alleged in the bill and swore to it that there was a common-law relationship between her and Thom Collins at the date alleged in the bill. It is the further contention of this court at that time that she fraudulently obtained jurisdiction of this court, and by so doing, she is guilty of abuse of process of this court, and I find her in contempt of court for so doing.”
Thereupon the circuit judge sentenced petitioner to 30 days in the Detroit house of correction and caused her to be placed in the custody of the sheriff for commitment. Petitioner gave her cash bond in the sum of $100 and was thereupon released from custody. On this appeal the petitioner presents the following questions: (1) Is the filing of a false pleading contemptuous; (2) Assuming petitioner’s bill of complaint is in fact contemptuous, is the filing of it a contempt committed in the immediate presence and view of the court such as would authorize a summary proceedings in contempt and punishment therefor; or (3) In such contempt proceedings is the defendant entitled to be served with a copy of the charges and the right to reply in advance of hearing?
There had been no petition, affidavit or citation by which petitioner had been brought before the court in a contempt proceedings. The circuit judge seems to have assumed that the contempt of which he found petitioner guilty was “committed in the immediate view and presence of the court,” and therefore afforded grounds for summary proceedings. In that' respect the circuit judge was in error. If plaintiff’s conduct can be said to be contemptuous, it occurred at the time she swore to her bill of complaint and filed it in the circuit court. In so doing she was not acting “in the immediate view and presence of the court.” The statute pertaining to contempt proceedings (CL 1948, § 605.1 et seq. [Stat Ann § 27.511 et seq.]) in part reads:
“When any misconduct, punishable by fine and imprisonment as declared in the last section, shall be committed in the immediate view and presence of the court, it may be punished summarily, by fine or imprisonment, or both, as hereinafter prescribed.” CL 1948, § 605.2 (Stat Ann § 27.512).
“When snch misconduct is not so committed, the court shall be satisfied by due proof, by affidavit of the facts charged, and shall cause a copy of such affidavit to be served on the party accused, a reasonable time to enable him to make his defense, except in cases of disobedience to any rule or order requiring the payment of money, and of disobedience to any subpoena.” CL 1948, § 605.3 (Stat Ann § 27.513).
“A direct contempt, committed in the immediate view and presence of the court, will be noticed by the court, and, on its own motion, it will punish summarily in the mode pointed out by the statute. But those not committed in its immediate view and presence must be brought before the court by affidavit of the persons who witnessed them, or have knowledge of them; and a rule is made, based upon such affidavit, either that an attachment issue, or that the accused show cause at a certain time and place why he should not be punished for the alleged contempt. * * * The words ‘immediate view and presence’ are words of limitation, and exclude the idea of constructive presence. The immediate view and presence does not extend beyond the range of vision of the judge, and the term applies only to such contempts as are committed in the face of the court.” In re Wood, 82 Mich 75, 82.
“One accused of contempt not committed in the presence of the court is entitled to be informed of the nature of the offense, and to be given time to prepare his defense And secure the assistance of counsel, and if he denies the offense he may not be found guilty until the issue of fact thus made has been disposed of after proper investigation, and the opportunity given him to produce witnesses in his own behalf, without depriving him of constitutional rights.” In re Smilay (syllabus), 235 Mich 151.
To the same effect in a case involving Michigan law, see In re Oliver, 333 US 257, 273, 275 (68 S Ct 499, 92 L ed 682).
“Adjudication of contempt of court and commitment to jail for alleged misconduct * * * not committed in the presence of the court, held, a deprivation of liberty without due process of law where court was not presented with an affidavit reciting alleged acts of misconduct and no order to show cause or attachment was issued.” In re Ventchell (syllabus), 279 Mich 690.
“Defendants in contempt proceedings should be given every opportunity to exonerate themselves.” In re White, 327 Mich 316.
Under the foregoing authorities it must be held that petitioner by order of the circuit court was unlawfully committed for contempt. Since under that order she is still technically in custody, such order is vacated and her bond cancelled. Our order herein should be certified to Wayne county circuit court. No costs are awarded.
Boyles, C. J., and Beid, Dethmers, Butzel, Carr, Bushnell, and Sharpe, JJ., concurred. | [
50,
-38,
14,
89,
-17,
-37,
-15,
47,
13,
13,
-58,
19,
-18,
-19,
-29,
3,
31,
-42,
65,
-54,
-71,
25,
24,
30,
16,
14,
-27,
-11,
-57,
7,
35,
17,
-38,
-28,
-13,
-40,
90,
15,
31,
28,
-68,
-52,
14,
7,
-42,
-6,
4,
9,
-17,
16,
-30,
-58,
50,
10,
-21,
-30,
5,
-47,
8,
-34,
15,
31,
-14,
-12,
-53,
-34,
55,
20,
41,
-73,
23,
-5,
12,
-65,
39,
-21,
31,
-40,
22,
17,
-10,
47,
1,
-47,
54,
19,
-5,
11,
48,
35,
-8,
20,
-67,
-9,
-15,
24,
14,
8,
56,
31,
-12,
-74,
-53,
-17,
76,
-5,
-50,
6,
31,
7,
21,
-35,
56,
-4,
22,
-51,
-11,
-36,
-25,
-51,
-3,
74,
-14,
-29,
-4,
-9,
-18,
-67,
29,
12,
53,
-30,
26,
-57,
-17,
-5,
16,
-62,
-23,
-54,
1,
-30,
24,
8,
52,
33,
-102,
-10,
-17,
-26,
0,
5,
-9,
6,
23,
-10,
4,
-47,
21,
28,
12,
16,
8,
-40,
-5,
-26,
17,
1,
3,
-9,
4,
24,
-41,
53,
14,
-30,
19,
25,
-66,
58,
35,
30,
-43,
-10,
-14,
14,
-35,
5,
-15,
1,
19,
-11,
1,
-11,
25,
37,
5,
24,
28,
-22,
-59,
-32,
6,
12,
-13,
37,
57,
4,
31,
36,
-6,
-45,
-13,
-16,
-69,
7,
47,
-37,
-49,
51,
26,
-25,
76,
-7,
-8,
-62,
0,
-27,
-16,
-6,
-30,
9,
-84,
-12,
-18,
13,
37,
-8,
21,
43,
-72,
-12,
-6,
-17,
36,
-14,
-17,
70,
41,
-33,
18,
10,
-41,
91,
5,
-22,
23,
26,
35,
-24,
-34,
2,
-7,
7,
-68,
-12,
-11,
-7,
38,
51,
52,
8,
10,
15,
59,
0,
-33,
33,
-6,
-12,
36,
14,
-28,
2,
28,
-34,
-6,
-42,
75,
5,
15,
-50,
-42,
-12,
-32,
86,
-55,
6,
-41,
57,
12,
-41,
46,
-21,
-19,
-39,
6,
-55,
20,
22,
54,
42,
2,
-83,
-8,
50,
1,
-21,
-18,
-6,
-3,
-8,
5,
11,
-2,
15,
16,
24,
0,
-15,
30,
40,
-3,
-86,
-41,
16,
1,
25,
-19,
-7,
0,
0,
-27,
63,
-37,
-14,
-2,
-8,
-75,
-39,
-40,
-4,
-34,
52,
-24,
18,
19,
-71,
35,
20,
-20,
-36,
0,
-36,
23,
18,
6,
-63,
25,
39,
-9,
7,
11,
0,
-57,
14,
23,
62,
45,
0,
-27,
-15,
-3,
25,
14,
18,
-27,
-20,
9,
-11,
23,
-8,
-27,
-53,
0,
7,
6,
15,
-21,
42,
-41,
-12,
-43,
45,
-42,
-12,
-35,
15,
-29,
34,
7,
-13,
11,
53,
38,
19,
-9,
-24,
8,
7,
-3,
0,
-4,
-8,
-6,
-27,
27,
-23,
57,
13,
-55,
-4,
7,
20,
30,
-32,
-4,
-16,
7,
-7,
-22,
-14,
27,
13,
-54,
14,
-43,
-36,
35,
-2,
10,
-24,
-3,
-17,
-35,
-47,
1,
57,
-4,
-27,
3,
-6,
56,
32,
29,
22,
-31,
31,
-23,
9,
41,
-32,
29,
41,
-58,
36,
15,
-44,
1,
-41,
-22,
32,
14,
24,
-20,
-22,
-4,
-29,
25,
-40,
10,
-82,
-10,
36,
6,
-46,
3,
-63,
-54,
-8,
0,
46,
43,
27,
23,
9,
9,
44,
18,
71,
-24,
-75,
38,
13,
-52,
41,
41,
38,
-45,
-22,
6,
20,
34,
0,
2,
-34,
65,
-19,
16,
36,
22,
45,
-27,
-13,
14,
39,
-65,
3,
21,
-60,
-17,
66,
45,
8,
-38,
45,
6,
-42,
-55,
29,
5,
-18,
-14,
11,
-24,
16,
38,
16,
-86,
19,
64,
-13,
11,
-49,
-3,
33,
18,
0,
-11,
6,
4,
-28,
57,
-11,
30,
21,
-19,
24,
-2,
-5,
6,
-5,
-5,
1,
-13,
-72,
8,
38,
10,
-32,
-60,
-29,
10,
-50,
0,
-34,
23,
-1,
22,
10,
-2,
-21,
6,
11,
-40,
13,
15,
37,
-10,
-71,
37,
-27,
-27,
20,
-7,
-12,
-26,
-42,
-29,
24,
-14,
34,
20,
-35,
25,
-42,
-4,
11,
30,
-19,
7,
-4,
19,
-4,
-28,
-20,
-27,
27,
1,
1,
-2,
18,
-32,
-26,
-27,
18,
13,
-38,
6,
4,
47,
3,
10,
55,
-6,
-19,
7,
-28,
-51,
2,
14,
-51,
-1,
2,
44,
-7,
46,
45,
4,
10,
-78,
-17,
41,
-28,
31,
17,
17,
25,
53,
2,
-21,
-5,
-22,
33,
13,
19,
3,
24,
-31,
33,
-21,
-35,
7,
30,
-48,
19,
15,
-21,
68,
70,
-22,
-11,
22,
27,
-8,
-55,
-15,
-36,
-3,
-19,
-42,
13,
3,
-18,
15,
4,
44,
3,
15,
-14,
16,
59,
22,
14,
-10,
25,
32,
5,
60,
-66,
17,
-4,
11,
-29,
34,
12,
20,
-30,
9,
-5,
-31,
-15,
-41,
25,
53,
-15,
-11,
13,
-20,
21,
25,
-24,
0,
-9,
23,
26,
6,
-56,
-30,
-17,
-26,
48,
-67,
-35,
11,
27,
-37,
-20,
48,
40,
-36,
-3,
-2,
-9,
-52,
25,
-41,
14,
30,
31,
-57,
-23,
-37,
-41,
4,
-25,
39,
9,
38,
2,
6,
-3,
47,
-10,
0,
20,
-64,
-32,
-14,
-12,
10,
15,
42,
-4,
29,
4,
-67,
-3,
-12,
31,
1,
37,
-26,
-31,
-52,
18,
17,
-45,
24,
-31,
15,
-32,
14,
42,
-3,
5,
-23,
26,
-8,
-33,
29,
-15,
24,
-11,
10,
-21,
46,
10,
-11,
16,
17,
25,
22,
-27,
14,
-3,
-14,
25,
43,
16,
31,
-2,
-29,
-9,
-40,
-50,
6,
-31,
-36,
-47,
-9,
-29,
7,
-95,
-8,
-1,
37,
22,
106,
42,
-45,
-33,
30,
10,
20,
38,
47,
-39,
9,
5,
-25,
5,
-73,
14,
41,
32,
41,
8,
-59,
-19,
20,
35,
48,
11,
-26,
4,
48,
-14,
-31,
24,
-23,
38,
5,
-25,
2,
-21,
-45,
46,
8,
-14,
36,
0,
-6,
10,
-38,
29,
10,
48,
-19,
-18,
49,
-42,
7,
23,
6,
-4,
20,
7,
1,
28,
42,
-37,
23,
-31,
12,
-24,
11,
22,
13,
-6,
-5,
-31,
-27,
-12,
31,
-3,
-42,
-29,
-53,
1,
-33,
8,
9,
-5,
-9,
-24,
-5,
33,
-15,
-7,
-15,
27,
-14,
-11,
-7,
-22,
-5,
74,
-29,
28,
29,
-20,
-16,
23,
-16,
-10,
30,
3,
26,
36,
20,
-10,
12,
-10,
-20,
-20,
-10,
13,
-44,
7,
87,
6,
-10,
-1,
7,
-12,
62,
-40,
-39,
26,
-12,
-26,
35,
-35,
19,
-17,
-40,
39,
-11,
19,
-24,
-11,
39,
56,
-46,
20,
-63,
-48,
-2,
-52,
14,
1,
28,
-11
] |
Adams, J.
Shortly after the end of World War II while building material was still scarce and government restrictions were still in existence, the plaintiffsNand appellants, Mr. and Mrs. Clarence Stratton, decided to construct a dwelling house on land owned by them in Litchfield township, Hillsdale county, Michigan. They contacted the defendant, Wendell Maine, a building contractor, and together they went to Hudson, Michigan, and looked at a house that they liked and wanted to copy in construction. Mr. Maine took some measurements of the house and after his return home drew 2 rough sketches of first and second floor plans of a proposed building similar in design to the Hudson house. The parties decided to go ahead with the building under a rather indefinite agreement, the substance of it being that the defendant would supply labor required in the construction and all material would be supplied by the plaintiffs. The defendant was to receive $1.40 per hour for all time he spent on the job as a super visor and 20 cents per hour for each hour that his men worked, this override of 20 cents on each hour of labor was to include social security, insurance, bookkeeping, and so forth. While the testimony is conflicting, it appears that it was the orignal understanding of the parties that the defendant would supervise the construction. Plaintiffs said that it was agreed the house would be completed by March 1,1947, a statement denied by defendant.
No part of the agreement was put in writing but work was started on or about the 16th of September, 1946, after a priority permit had been obtained from the Federal government. The application for this permit set forth an estimate of total labor costs of $3,500, but all parties understood that it was an estimate and not an exact figure.
Almost immediately after the work was begun, it became apparent that the plaintiff Clarence Stratton was, to a large degree, supervising and directing the workmen on the job. He was in or about the building during substantially the entire period of construction and his brother and his son were there much of the time. During the course of construction a number of changes were made in the original plans, including an excavation under the garage, a change in the pitch of the roof, and a change in the height of the ceilings. When the basement was put in, only 3 sides were poured in the first instance at the direction of Clarence Stratton and contrary to the recommendations of the defendant. The defendant was not called in for counsel when the changes in construction were decided upon nor when new phases of construction were commenced. The work continued through the balance of the year 1946 and into 1947.
Some time during the month of January, plaintiff Clarence Stratton became dissatisfied with the quality of the workmanship performed by defendant’s employees. It was discovered that the basement of the cellar sloped away from the drain, that the risers on the stairway were not equal in dimension, that mortar used in the laying of cement blocks had crumbled, that rafters had been cut at improper angles and that the basement was out of square. Plaintiffs criticized the defendant for these errors in construction and defendant in defense said that most of the defects were the result of plaintiff’s changes in plans and his supervision of the work. By the end of the month the parties had reached such disagreement that defendant refused to do any further work and called his men off the job. During the entire period of construction plaintiffs had paid defendant for the services of his employees $1,028.33, and no claim is made that any balance remains unpaid.
Plaintiffs then went ahead with the construction of the house and it was completed on or about September 1, 1947. Thereafter this action was instituted to recover damages for alleged breach of contract, plaintiffs claiming that because of defendant’s failure to properly supervise the work and refusal to complete the job, they had been forced to pay addi- , tional sums to correct the defects in construction and had found it necessary to temporarily rent other living quarters because of the delay in completion. In addition, it was claimed that the building was damaged by action of the elements because of defendant’s failure to properly protect it. Total claimed damages amounted to $1,500.
Upon trial without a jury, a judgment of no cause of action was entered and plaintiffs appeal, claiming •error in the court’s findings.
Plaintiffs contend that the defendant was an independent contractor bound by the terms of an oral agreement to construct a dwelling house in a workmanlike manner within a specified period of time and that he is liable for damages resulting from the breach of that contract. Defendant, on the other hand, claims that he was not an independent contractor but simply supplying a part of the hourly labor required in the construction of the dwelling and that he and his men were there as employees of the plaintiff and entitled to terminate their employment at any time.
Both rely upon the definition of an independent contractor found in 26 Cyc, p 1546 and quoted with approval in Utley v. Taylor & Gaskin, Inc., 305 Mich 561, 570; and Zoltowski v. Ternes Coal & Lumber Co., 214 Mich 231. That definition reads as follows:
“An independent contractor is one who, carrying on an independent business, contracts to do a piece of work according to his own methods, and without being subject to the control of his employer as to the means by which the result is to be accomplished, but only as to the result of the work. Generally the circumstances which go to show one to be an independent contractor, while separately they may not be conclusive, are the independent nature of his business, the existence of a contract for the performance of a specified piece of work, the agreement to pay a fixed price for the work, the employment of assistants by _ the employee who are under his control, the furnishing by him of the necessary materials, and his right to control the work while it is in progress except as to results.”
■ A review of the record discloses convincingly that the defendant does not qualify as an independent contractor under the quoted definition. Throughout the period of more than 4 months of construction, defendant and his employees were at all times subjected to the control of the plaintiffs not merely as to the result of their work but as to the method and means by which the result was to be accomplished. Plaintiff Clarence Stratton consistently claimed the right to control the work while it was in progress and cannot now complain of the result.
In their brief,' plaintiffs say that it is not actual interference with control but rather the right to interfere that tests the relationship. Tuttle v. Embury-Martin Lumber Co., 192 Mich 385 (Ann Cas 1918C, 664). We are of the opinion, however, that plaintiffs’ unchallenged supervision over an extended period is clearly indicative of a belief on the part of all parties that plaintiff was acting as a matter of right under the terms of the oral understanding. The conclusion of the trial judge that defendant was an employee and not an independent contractor was proper.
The judgment is affirmed, costs to appellee.
Dethmers, C. J., and Butzel, Carr, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
31,
42,
-18,
-50,
-14,
-34,
-62,
60,
33,
-13,
19,
-20,
36,
-39,
57,
-3,
-44,
28,
26,
23,
-22,
-32,
-9,
2,
-12,
35,
56,
1,
3,
22,
-19,
-16,
-27,
-5,
-24,
22,
61,
-14,
21,
-20,
5,
-88,
-17,
-72,
-20,
-22,
38,
9,
32,
15,
-31,
25,
45,
16,
36,
-20,
-4,
0,
-46,
50,
1,
-27,
0,
-28,
4,
-17,
43,
42,
-3,
12,
-7,
7,
-3,
-42,
46,
-28,
17,
7,
-36,
-42,
29,
33,
50,
-19,
-55,
-5,
-30,
-16,
-26,
54,
-47,
-7,
-3,
58,
-59,
14,
-20,
65,
29,
25,
4,
28,
-2,
2,
-18,
17,
-51,
-65,
-5,
34,
18,
1,
10,
18,
-9,
6,
25,
-1,
-54,
-20,
-30,
4,
-33,
-26,
-15,
21,
-9,
-69,
18,
-4,
23,
-29,
-1,
2,
-27,
32,
22,
-28,
-28,
-61,
12,
30,
-20,
-8,
-6,
2,
-31,
20,
3,
-14,
-59,
-2,
33,
29,
18,
11,
-7,
9,
23,
-41,
3,
-9,
-11,
5,
-31,
-6,
-51,
50,
18,
8,
-8,
1,
-43,
-44,
6,
37,
57,
0,
-1,
40,
-13,
-25,
42,
38,
-6,
-6,
17,
3,
31,
6,
61,
-13,
-11,
15,
-6,
19,
-26,
9,
-28,
23,
-38,
-30,
20,
-34,
-40,
-26,
9,
30,
27,
-15,
20,
-5,
9,
4,
-10,
21,
-25,
37,
34,
-6,
-18,
-30,
-7,
32,
-50,
3,
38,
30,
62,
-38,
-14,
11,
5,
39,
10,
-7,
-14,
16,
0,
33,
-34,
3,
-30,
23,
-10,
-34,
-73,
2,
17,
5,
-40,
32,
-52,
6,
7,
-3,
35,
47,
-31,
-16,
10,
-2,
-42,
-6,
35,
36,
-12,
-5,
2,
-9,
-22,
13,
-21,
33,
-70,
8,
-75,
-12,
16,
-14,
2,
-24,
-13,
-1,
4,
-5,
18,
-15,
-65,
-4,
36,
-52,
5,
-70,
46,
3,
28,
-18,
-22,
-15,
-56,
-5,
-28,
-27,
34,
-4,
-33,
17,
8,
30,
5,
-16,
39,
-12,
23,
15,
-6,
-9,
-18,
-38,
-4,
8,
2,
11,
13,
5,
13,
1,
-41,
15,
14,
40,
-23,
33,
-65,
-1,
9,
12,
42,
5,
13,
25,
68,
-9,
9,
16,
-2,
-5,
-18,
-9,
2,
-24,
-2,
30,
-3,
45,
-31,
0,
-46,
24,
47,
52,
0,
45,
-54,
-16,
13,
-42,
51,
16,
22,
3,
-40,
19,
-19,
24,
-5,
-5,
-18,
57,
12,
11,
29,
7,
-21,
-20,
6,
-34,
17,
1,
-31,
-56,
9,
0,
10,
-56,
20,
-4,
-3,
-29,
-23,
-16,
-25,
5,
-3,
17,
-6,
7,
-22,
-8,
-14,
-53,
-32,
-5,
3,
-5,
18,
-12,
7,
32,
14,
76,
15,
15,
34,
-22,
1,
-19,
-54,
6,
-17,
-18,
39,
2,
-19,
11,
-71,
5,
-28,
4,
-22,
52,
-9,
13,
32,
-39,
-7,
9,
7,
23,
8,
41,
-16,
0,
6,
-11,
10,
-35,
14,
21,
-50,
-39,
52,
-39,
4,
28,
-27,
0,
-5,
31,
17,
26,
41,
-13,
-26,
-22,
12,
-21,
4,
-21,
60,
-10,
0,
-22,
-17,
-40,
-71,
10,
-17,
7,
15,
24,
-21,
-1,
5,
0,
-23,
0,
-33,
12,
8,
5,
20,
-48,
16,
-27,
18,
-6,
-15,
-2,
-13,
-53,
6,
46,
-41,
-16,
64,
-17,
-29,
29,
-35,
48,
32,
1,
-6,
0,
16,
22,
-17,
-12,
12,
-41,
0,
63,
-38,
-14,
17,
-13,
4,
-56,
8,
-12,
8,
30,
6,
-23,
-48,
5,
-23,
-8,
0,
-44,
-1,
-3,
-36,
-5,
-14,
4,
-7,
20,
1,
12,
76,
23,
58,
-13,
-48,
8,
60,
-18,
-11,
37,
-16,
51,
-39,
45,
-48,
-7,
-30,
32,
7,
-16,
-22,
-6,
-62,
-30,
-2,
59,
-65,
6,
-30,
-8,
-25,
-13,
4,
-56,
29,
22,
-12,
-7,
23,
-40,
-29,
-2,
-18,
-7,
-7,
36,
18,
-3,
5,
8,
-13,
55,
12,
49,
-12,
-42,
52,
14,
25,
2,
-45,
28,
2,
19,
17,
-18,
-65,
-15,
-16,
53,
4,
34,
31,
-7,
50,
11,
2,
-31,
-9,
42,
-12,
3,
-41,
-41,
34,
-39,
-22,
26,
-32,
5,
5,
29,
-13,
-56,
10,
-61,
-10,
5,
75,
-3,
7,
3,
-65,
-61,
37,
16,
36,
0,
-4,
8,
32,
39,
-16,
-51,
1,
10,
8,
19,
43,
11,
4,
1,
22,
10,
49,
-13,
-16,
17,
3,
0,
24,
0,
-8,
32,
-28,
-9,
3,
15,
-32,
-24,
47,
6,
-13,
48,
5,
-12,
10,
-25,
11,
25,
14,
35,
-6,
75,
1,
-8,
-18,
14,
48,
-15,
-37,
3,
8,
-19,
13,
-48,
-57,
-10,
30,
24,
-9,
-9,
-24,
-8,
-50,
38,
-11,
-36,
11,
-26,
-17,
-18,
-26,
-31,
68,
2,
-28,
29,
-29,
46,
44,
-10,
4,
1,
-21,
-8,
1,
30,
-3,
-46,
-25,
-33,
-31,
-4,
0,
7,
19,
-28,
-14,
40,
-24,
-36,
2,
10,
40,
7,
8,
19,
-8,
10,
-6,
25,
-6,
-23,
12,
11,
70,
41,
-63,
-29,
-7,
26,
-22,
-18,
27,
94,
44,
-25,
17,
28,
65,
52,
21,
-37,
-88,
48,
-1,
16,
-20,
-3,
-43,
-28,
-20,
-32,
24,
39,
-12,
65,
-25,
35,
6,
-38,
56,
-11,
11,
0,
-5,
1,
27,
12,
-9,
29,
1,
13,
20,
19,
-12,
4,
8,
-32,
0,
2,
-7,
14,
-19,
19,
-14,
-3,
-15,
-38,
12,
11,
-4,
13,
11,
-18,
59,
3,
21,
-5,
-42,
38,
36,
-10,
-7,
-15,
36,
7,
12,
-4,
14,
-46,
11,
-12,
-12,
0,
42,
23,
4,
17,
29,
0,
-26,
-5,
33,
-15,
32,
46,
23,
-3,
-31,
-7,
-1,
-32,
16,
-33,
-5,
-16,
9,
7,
19,
47,
9,
-43,
-34,
3,
20,
26,
-18,
-7,
-32,
-52,
-41,
25,
-35,
11,
-39,
61,
-11,
-21,
-45,
-12,
-55,
-15,
-10,
-3,
-46,
39,
24,
-33,
-4,
18,
-2,
9,
40,
-32,
-8,
-44,
-8,
-51,
-60,
5,
21,
21,
-8,
-42,
28,
-1,
-18,
-3,
28,
11,
10,
-26,
-17,
-14,
-18,
-40,
-13,
25,
22,
-10,
-15,
-44,
43,
7,
0,
-41,
47,
-6,
-25,
5,
36,
-10,
-6,
3,
10,
-8,
9,
-37,
0,
80,
3,
-32,
24,
7,
-48,
-20,
28,
11,
-10,
22,
26,
-1,
10,
-32,
-13,
13,
18,
0,
6,
26,
41,
-4,
-8,
32,
-6,
-67,
-62,
16,
3,
11,
-31,
23,
-7,
-9,
-8,
-32,
49,
-15,
-6,
71
] |
Carr, J.
Prior to the 10th of March, 1949, the plaintiffs herein were employees of the defendant Western Union Telegraph Company. For the purposes of collective bargaining with their employer they were represented by the Commercial Telegraphers Union, an affiliate of the American Federation of Labor. For some time prior to 1949 the company had been contemplating the making of changes in operating methods, the natural result of which would be a reduction in personnel. By contract between the company and the union certain provisions were made for the benefit and protection of plaintiffs and other employees in the event that the company, because of the putting of the contemplated changes into effect, should become unable to provide work for them, or any of them.
The contract as drawn provided specifically for discussions with the union in advance of any displacement of personnel, for the purpose of determining the application of the contract provisions. It also set forth that any employee whose employment was terminated should have the option to take advantage of any one of the following provisions:
“1. Acceptance of pension if eligible.
“2. Acceptance of severance pay as hereinbelow outlined.
“3. Acceptance of transfer to another office or major department as hereinbelow outlined. The offices in which this option is to be exercised shall be a subject for negotiation during the 60-day period mentioned above, at the division level for transfers-within the division and at the national level for interdivision transfers. -
“4. Acceptance of work in a lower class of work.
“5. A force reduction furlough as hereinbelow outlined.”
On the date above mentioned the employment of the plaintiffs, because of the changes made by the •company, was terminated. Thereupon they severally elected to accept, in accordance with the provisions of the contract, the severance pay to which they were entitled. Each received the amount due by way of such pay. Shortly thereafter plaintiffs made application for unemployment compensation benefits in accordance with the statute (PA 1936 [Ex Sess], No 1, as amended [CL 1948, § 421.1 et seq. (Stat Ann 1950 Rev § 17.501 et seg.)]).
The employment compensation commission determined that the plaintiffs were entitled to compensation. The order made was appealed to a referee who, after a hearing, upheld the commission’s action. Appeal was then taken to the appeal board of the Michigan unemployment compensation commission which reversed the decision of the referee and held that plaintiffs were not eligible under the statute to receive compensation. A motion for a rehearing was made and denied. Thereafter plaintiffs petitioned the superior court of Grand Rapids to issue a writ of certiorari to review the determination of the appeal board, and such writ was granted.
The Western Union Telegraph Company entered •a special appearance in the case and moved to dismiss on the ground that the court was without jurisdiction to hear and determine the matter, which motion was denied. The company by appropriate motion also raised the question that service of the writ of certiorari had not been made on it within the time specified by the order therefor. This motion was also denied, the court granting plaintiffs’ request for an extension of time within which to make such service. Thereafter the matter was heard on the merits and judgment was entered in plaintiffs’ favor, setting aside the order of the appeal board and reinstating the order of the commission allow ing unemployment compensation. From such judgment the Western Union Telegraph Company has appealed, claiming that the trial court was in error in denying the motions to dismiss and in holding that the acceptance of severance pay in accordance with the contract did not render plaintiffs ineligible for unemployment compensation under the statute.
Section 38 of the unemployment compensation act (CL 1948, § 421.38 [Stat Ann 1950 Rev § 17.540]) makes provision for review of the action of the appeal board in cases of this character. Said section reads as follows:
“Sec. 38. * * * The findings of fact made by the appeal board acting within its powers if supported by the great weight of the evidence, shall, in the absence of fraud, be conclusive, but the circuit court of the county, in which the claimant resides or in which the employer’s principal place of business in Michigan is located, if no claimant is a party to the ease, or the circuit court for the county of Ingham shall have power to review questions of fact and law on the record made before the referee and the appeal board involved in any such final decision, but said court may reverse such decision of said appeal board upon a question of fact only if it finds that said decision of the appeal board is contrary to the great weight of the evidence: Provided, That application is made within 15 days after delivery of a copy of such decision, by certiorari or by any other method permissible under the rules and practices of the circuit courts of this State, and to make such further orders in respect thereto as justice may require. The commission shall be deemed to be a party to any judicial action involving any such decision. An appeal may be had from the decision of said circuit court in the same manner as provided by the laws of this State with respect to appeals from circuit courts.”
It will be noted that tbe statute makes no mention of the superior court of Grand Rapids. It is claimed by plaintiffs, however, and also by the appellee commission that said court has jurisdiction by virtue of the provisions of the act creating it and defining its powers and duties. The said court was created by the legislature in accordance with specific authority granted therefor by article 6, § 1, of the Constitution of 1850. Its jurisdiction was expressly defined by section 13 of the Act of 1875 which, as last amended by PA 1881, No 113 (CL 1948, § 727.13 [Stat Ann § 27.3623]), reads, in part, as follows:
“Sec. 13. The said superior court shall have original jurisdiction, concurrent with the circuit court for the county of Kent, in all civil actions of a transitory nature, when the debt or damage claimed is over 100 dollars, in which both parties reside in the city of Grand Rapids; or in which either the plaintiff or the defendant resides in the city of Grand Rapids, and service of a copy of the declaration or process by which suit is begun shall be had within said city; or in which the plaintiffs, or 1 of them, if there be more than 1, reside in said city, and the defendants, or 1 of them, if there be more than 1, shall be served with a copy of the declaration, or with process in said city; or in which the defendants, or 1 of them, if there be more than 1, reside in said city, and are served with a copy of the declaration, or with process in said city. Said court shall also have such jurisdiction of all actions of trespass upon lands situate in the city of Grand Rapids; of all actions of ejectment for lands situate in said city; of suits begun by writ of attachment against nonresidents, if the property attached is in the corporate limits of said city when the writ is sued out; of all equity suits in which both parties are residents of said city, or in which either party is a resident of said city, or in which any complainant or defendant shall he a resident of said city, or in which the subject matter of such suit is situate in said city; of all foreclosure suits upon land situate in said city. And said superior court shall have exclusive jurisdiction of all actions of a civil nature at law ■or in equity, which may be brought by or against the board of education of said city, or by or against the said city or any of its officers; and shall have exclusive appellate jurisdiction, where appeals may be made, of all eases originally commenced and prosecuted in the police court of Grand Rapids, where a final judgment shall be rendered by police court in cases arising out of the breach of any provision •of the charter or ordinances of said city; and exclusive original jurisdiction to issue writs of certiorari in such cases tried and determined in said police court, and determine the same, when it may be lawfully done. All the jurisdiction conferred upon a recorder’s court of the said city, in and by title VI and VII of the revised charter of the said city, and the acts amendatory thereto, is transferred to and vested in the said superior court. Said superior ■court shall also have original and exclusive jurisdiction of all prosecutions and proceedings in behalf of the people of this State, for all crimes, misdemeanors and offenses arising under the laws of this State, and committed Avithin the corporate limits ■of the city of Grand Rapids, except in cases exclusively cognizable by the police court, or the justices of the peace of said city, and shall have power to issue all lawful writs and process, and to do all lawful acts which may be necessary and proper to carry into complete effect the powers and jurisdiction given by this act, and especially to issue all writs and process, and to do all acts which the circuit courts of this State, within their respective jurisdictions, may in like cases issue and do by the laws of this State.”
Plaintiffs and appellee commission rely particularly on the grant of original jurisdiction, concurrent with the circuit court for the county of Kent, • in actions of a transitory nature when the debt or damage claimed is over $100, subject to the expressed requirements as to residence of the parties and service of process. The reference to “debt or damage claimed” obviously suggests that the legislature did not have in mind a proceeding of the character here involved, the review of an order of an administrative board. The subsequent provision relating to the issuance of writs must be construed as having reference to the jurisdiction expressly granted. It is significant that the legislature, in creating the superior court, did not invest it with all the powers and functions of a circuit court within the territorial limits of its jurisdiction. The particular classes of cases that it might hear and determine were specifically named.
In Dunham v. Tilma, 191 Mich 688, it was contended on behalf of the plaintiff that the legislature in providing for the superior court of Grand Rapids had not actually created a new court but had merely made a division and continuation of the circuit court of Kent county, carving out jurisdiction therefrom on a territorial basis. In rejecting the claim advanced, it was said in part:
“But this is not a correct assumption. The creation of the superior court was not a division of the territorial limits of the Kent circuit court, and the establishment of a new circuit court in the city of Grand Rapids. If that were the case, the superior court would necessarily, and without any grant of the legislature, possess all of the powers guaranteed by the Constitution to circuit courts, inasmuch as those powers are beyond the reach of the legislature. Section 10, article 7, of the present Constitution provides:
“ ‘Circuit courts shall have original jurisdiction in all matters civil and criminal not excepted in this Constitution and not prohibited by law, and appellate jurisdiction from all inferior courts and tribunals and a supervisory control of the same. They shall also have power to issue writs of habeas corpus, mandamus, injunctions, quo warranto and certiorari and to hear and determine1 the same; and to issue such other writs as may be necessary to carry into effect their orders, judgments and decrees and give them general control over inferior courts and tribunals within their respective jurisdictions, and in all such other cases and matters as the Supreme Court shall by rule prescribe.’
“This leaves to the legislature the right only to determine what causes may be instituted in the circuit courts. It permits to the legislature no control over the general powers of those courts. Brown v. Kalamazoo Circuit Judge, 75 Mich 274 (5 LRA 226, 13 Am St Rep 438); Nichols v. Judge of Superior Court of Grand Rapids, 130 Mich 187. The corresponding section of the old Constitution differed, in substance but slightly from the present one. This is not the case with municipal courts. They are not created by the Constitution, but only authorized and permitted. They derive all of their powers from the legislature. Nichols v. Judge of Superior Court of Grand Rapids, supra. And the legislature may give them large or limited powers. In either case they are still municipal courts, and belong to that classification. They are not courts of ‘general jurisdiction,’ in the sense in which that term is applied to circuit courts. Their nature is defined, and the source of their power is stated, in People, ex rel. Covell, v. Treasurer of Kent County, 36 Mich 332, where this Court said:
“ ‘The Court also think that under the Constitution it was competent to establish the superior court. The Constitution, it is true, declares that “the judicial power is vested in one Supreme Court, in circuit courts, in probate courts and in justices of the peace.” But it also in the same section declares that “municipal courts of civil and criminal jurisdiction may be established by the legislature in cities.” Article 6, § 1. This is a plain reservation to the legislature of the power to carve out of the judicial power vested in the other courts named such authority as it would be proper to confer upon city courts, and to create such courts for its exercise. Where that is done, the legislature must determine the extent of the authority to be given the municipal courts, subject to the restriction that it must not exceed that which can properly pertain to a municipal court.’
“While this is not the only distinction that might he pointed out between circuit courts and municipal courts, it is fundamental and sufficient. The superior court of Grand Rapids was professedly organized as a municipal court.” 1
The unemployment compensation act was passed many years after the legislature created the superior court of Grand Rapids and defined its powers. Provision was made by the later act for the means and methods of carrying out the purpose sought to be accomplished. Remedies by way of appeal were granted for the protection of the rights of parties concerned in any such proceeding. The right of recourse to the circuit court of the county in which the claimant resides or in which the employer’s principal place of business is located, if a claimant is not a party to the proceeding, or to the circuit court of Ingham county, is expressly granted. The power of a circuit court hearing such matter on review is defined and limited by the express provisions of the statute. The determination of the appeal board may not be reversed on an issue of fact unless found to be contrary to the great weight of the evidence. The jurisdiction of the Supreme Court in the premises with reference to such a controversy
is limited to a review of the action of the circuit court. As pointed out in Godsol v. Unemployment Compensation Commission, 302 Mich 652 (142 ALR 910):
“There is no procedure by which we may review directly any decision of the administrative tribunal.”
In making such statement the constitutional authority of this Court to issue original and remedial writs (Const 1908, art 7, § 4) was not overlooked. Eather, the Court recognized the fact that the legislature had provided for a specific procedure to be observed in the administration of the unemployment compensation act and for a limited judicial review, and that such provision is exclusive of any and all other possible methods of review. Such limitation was recognized in Copper Range Company v. Unemployment Compensation Commission, 320 Mich 460, 468, where it was said:
“The scope of the review of questions of fact and law by the circuit court of Ingham county, and on appeal therefrom by this Court, is limited by the provisions of section 38 of the act, as amended by PA 1941, No 364 (CLS 1945, § 8485-78, Stat Ann 1947 Cum Supp § 17.540).”
The argument advanced on behalf of the plaintiffs and of the compensation commission is in substance predicated on the theory that in the enactment of the unemployment compensation act, and in defining the jurisdiction of the circuit court to review the action of the appeal board, the legislature impliedly added to the jurisdiction of the superior court of Grand Eapids and in legal effect granted to it the same measure of authority, subject to territorial limitations of jurisdiction, that was given to circuit courts. In view of the nature of the superior court, however, the purposes for which it was created, and the enumerated powers conferred on it, we do not think that such inference or implication is permissible. The compensation act created new rights and a specific method to be followed in obtaining and protecting those rights. Had the legislature intended to grant to the superior court the authority and jurisdiction now claimed for it, we think that, in keeping with the specific nature of other provisions of the act, such intent would have been stated. This is not a situation in which the statute providing for unemployment compensation in certain cases and the earlier act creating the superior court of Grand Rapids may be regarded as in pari materia. The later statute is complete in all its details. It does not depend for its operation and effect on any implied grant of jurisdiction to said court.
In People v. Kupusinac, 261 Mich 398, the claim that an act of 1923 relating to itinerant vendors and hawkers of drugs and toilet preparations should be construed and enforced with reference to the provisions of the general hawkers and peddlers act which had been in force for many years was rejected. In holding that the later enactment was complete and bore no relation to the prior general act, it was said:
“Were there anything ambiguous or obscure about the law which defendant is charged with violating, his argument of pari materia might possibly be considered. However, CL 1929, § 9704 et seq. apply solely to itinerant or traveling vendors or hawkers of drugs, et cetera, and provide (section 9709) that any persons licensed under the provisions of the act shall not be required to obtain a State license under the prior act (CL 1929, § 9659 et seq., supra). It is apparent that the later act was intended to be complete in itself, bearing no relation to any previous statute. It cannot be controlled by the former act unless such intent is clearly expressed or, at least, their close relation made apparent by the employ ment of similar phraseology. People, ex rel. Chapoton, v. Common Council of City of Detroit, 38 Mich 636; People v. Blair, 192 Mich 183. It is clear that the later act under which defendant was convicted stands alone and is not affected by the provisions of any other act.”
An analogous situation is presented in the instant case. There is nothing in the later statute suggesing a legislative purpose that in the administration of the law the judicial functions granted to circuit courts should be considered as likewise granted to the superior court of Grand Rapids, nor may we read into the statute any provision adding to or enlarging the jurisdiction of that court. Furthermore, it may be said, as before indicated, that the provisions of the statute creating said court and defining its powers and duties may not be construed as granting' to it jurisdiction of the general nature here involved. A proceeding of this character has no reference to the specific powers granted to the superior court and in connection with which it is authorized to issue appropriate writs and process.
Counsel for plaintiffs and for the commission have called attention to Attorney General, ex rel. Danhof, v. Renihan, 184 Mich 272. The question at issue in that case was whether the Governor of the State or the common council of the city had the right to fill a vacancy in the office of judge of the superior court. It was held that said court being a court of record the right to make the appointment was vested by the Constitution in the Governor. In Youdan v. Kelley, 267 Mich 616, the jurisdiction of the superior court in a replevin action was sustained. We do not think that either of these decisions may be regarded as sustaining the claim of the plaintiffs and of the compensation commission in the instant controversy.
For the reasons above considered, we think that the trial court was in error in denying the motion to dismiss the writ of certiorari. It did not have jurisdiction to review the order of the appeal board under the unemployment compensation act. In view of such conclusion a discussion of other issues raised by counsel in their briefs, relating to the merits of the controversy, is not required nor would it be proper.
The case is remanded with directions to set aside the judgment entered, and to dismiss the proceeding. Inasmuch as the interpretation of statutes of the State is involved, and the matters at issue are of public interest, no costs are allowed.
Dethmers, C. J., and Adams, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred.
The amendment to the statute made by PA 1949, No 282, has no bearing on the instant ease.
PA 1875, No 49, as amended (CL 1948, § 727.1 et se<¿. [Stat Ann and Stat Ann 1949 Cum Supp § 27.3611 et se#.]).
Const 1850.—Reporter. | [
9,
-29,
-44,
59,
45,
-1,
-7,
-66,
-14,
16,
-10,
17,
83,
-40,
-22,
-19,
-10,
-13,
-25,
29,
-81,
-37,
-11,
-26,
-17,
-13,
23,
-39,
-3,
8,
-33,
13,
-32,
-16,
-49,
-38,
-16,
-27,
-14,
-46,
12,
-14,
5,
26,
13,
13,
38,
-17,
32,
-52,
23,
37,
-17,
27,
59,
-9,
-5,
-16,
-3,
35,
-45,
-10,
27,
-9,
20,
-77,
28,
50,
-1,
10,
-8,
10,
-2,
-28,
-4,
0,
-16,
28,
-45,
-2,
19,
-95,
-2,
-37,
-10,
38,
44,
24,
47,
41,
-43,
15,
-8,
-7,
-19,
3,
-18,
33,
-25,
18,
-25,
-19,
-21,
12,
12,
10,
36,
0,
-50,
46,
-28,
8,
29,
1,
-4,
1,
18,
-7,
-5,
41,
18,
-11,
-37,
44,
-5,
14,
-12,
17,
28,
33,
10,
37,
-17,
19,
31,
22,
35,
-14,
38,
22,
-57,
31,
-40,
-56,
-10,
27,
-23,
-7,
-4,
-60,
20,
-27,
31,
45,
-4,
-8,
22,
-9,
46,
-19,
31,
-1,
18,
40,
-35,
-27,
-40,
-4,
19,
4,
-28,
-20,
3,
-14,
15,
17,
27,
19,
-54,
-13,
-28,
9,
-5,
-4,
19,
-28,
3,
-22,
50,
15,
31,
-37,
4,
-10,
-40,
-1,
68,
15,
8,
37,
-2,
12,
-39,
38,
-9,
11,
18,
-27,
31,
27,
-2,
0,
-18,
-23,
-6,
16,
-41,
-26,
6,
-50,
-25,
13,
-11,
22,
-29,
-36,
-14,
13,
41,
-25,
-17,
28,
37,
-6,
2,
17,
-7,
-17,
49,
-15,
-2,
-72,
1,
-4,
-14,
-32,
-45,
-61,
41,
21,
-13,
-10,
16,
42,
-27,
-41,
-18,
53,
-22,
-28,
-24,
60,
-18,
49,
15,
-9,
-30,
23,
4,
-23,
25,
-11,
47,
-22,
-34,
-36,
-49,
5,
51,
-67,
-39,
36,
-54,
-37,
-54,
-42,
-4,
-61,
-53,
-12,
17,
-13,
-2,
-6,
40,
-23,
43,
37,
9,
30,
-36,
-9,
7,
-34,
-10,
23,
-106,
-30,
30,
-29,
-13,
-14,
8,
-72,
36,
-31,
-3,
5,
32,
-8,
0,
46,
24,
-2,
40,
-17,
-28,
25,
-15,
11,
-7,
-13,
-33,
47,
34,
-6,
-2,
39,
35,
-3,
19,
-5,
10,
-37,
-37,
0,
28,
-40,
31,
-16,
41,
31,
3,
-23,
33,
63,
60,
16,
-46,
-3,
-6,
-33,
-35,
-22,
-11,
27,
-21,
-32,
41,
-3,
23,
32,
12,
-41,
-27,
24,
20,
1,
-22,
19,
29,
2,
-2,
-27,
7,
-55,
27,
-1,
-11,
-48,
-33,
-30,
-20,
64,
-12,
50,
14,
-20,
-12,
53,
29,
42,
-34,
-7,
-18,
-52,
6,
-44,
-49,
59,
-18,
13,
65,
12,
3,
5,
49,
-15,
44,
-7,
73,
5,
47,
14,
-8,
-56,
47,
0,
-38,
-5,
-10,
-30,
11,
-40,
-24,
59,
-2,
-15,
-71,
-11,
-27,
-2,
-29,
15,
-22,
19,
-8,
5,
24,
-12,
-9,
43,
-8,
20,
-26,
-20,
1,
39,
26,
8,
-16,
-46,
22,
28,
54,
-22,
9,
22,
25,
-1,
-2,
-35,
-13,
38,
-26,
-21,
-11,
-44,
-17,
10,
13,
-1,
-12,
-17,
-16,
17,
3,
-14,
-9,
18,
27,
-6,
-5,
-12,
-19,
39,
-11,
26,
16,
-20,
17,
-46,
53,
-38,
13,
-3,
-46,
-81,
-17,
0,
-44,
-28,
5,
33,
36,
22,
-66,
24,
2,
17,
-19,
0,
-2,
-16,
-8,
-15,
-20,
-2,
4,
-12,
-10,
0,
75,
-21,
42,
-6,
4,
-15,
-49,
-83,
1,
-5,
-19,
36,
8,
-10,
-39,
21,
55,
-7,
0,
-86,
-7,
6,
-2,
32,
6,
0,
44,
18,
-31,
9,
20,
46,
-12,
21,
-38,
44,
22,
3,
18,
8,
26,
36,
15,
8,
64,
-37,
1,
29,
-1,
-8,
-3,
-4,
-1,
-63,
22,
1,
-27,
11,
8,
-8,
-29,
-14,
34,
1,
45,
22,
-36,
31,
42,
-15,
-33,
3,
-52,
13,
10,
9,
13,
19,
-27,
17,
15,
17,
-11,
-28,
-7,
8,
48,
57,
16,
56,
27,
-3,
-39,
2,
13,
-17,
16,
-4,
52,
-1,
5,
-32,
11,
3,
33,
35,
21,
0,
18,
11,
46,
47,
-14,
-35,
19,
25,
-8,
-11,
-8,
32,
25,
-38,
-31,
28,
-18,
23,
0,
-40,
-29,
1,
14,
8,
11,
34,
21,
-4,
4,
-36,
28,
3,
50,
38,
49,
-46,
-19,
27,
30,
26,
-23,
10,
23,
48,
-18,
-4,
-4,
-25,
-19,
-14,
27,
15,
-53,
32,
-10,
-60,
19,
-14,
21,
-23,
-26,
0,
-43,
10,
-11,
30,
-56,
15,
23,
56,
6,
-72,
11,
2,
5,
24,
-3,
3,
-15,
1,
-15,
-4,
10,
-31,
-27,
32,
26,
-72,
-59,
-30,
0,
2,
-21,
19,
0,
-10,
-13,
-21,
-18,
18,
42,
3,
12,
40,
-6,
34,
14,
-18,
6,
-25,
-21,
-26,
-9,
4,
4,
-15,
-23,
66,
-41,
-14,
28,
-57,
24,
7,
7,
10,
-17,
1,
61,
-68,
-36,
-28,
-4,
-3,
9,
-8,
20,
-3,
-63,
-6,
-11,
-6,
-6,
39,
-40,
-32,
-12,
-51,
-16,
0,
-66,
-46,
6,
-22,
-49,
-10,
22,
-3,
-20,
-33,
-56,
0,
-49,
-42,
-4,
-6,
31,
-34,
34,
-54,
-39,
-34,
-29,
32,
-57,
20,
-64,
6,
-44,
-10,
-10,
-3,
-12,
9,
16,
-63,
-15,
4,
25,
17,
-11,
37,
-12,
16,
-37,
72,
-8,
-54,
14,
16,
-7,
-77,
-37,
-1,
3,
0,
-35,
47,
-18,
-16,
-33,
-31,
-41,
66,
21,
-3,
-26,
-31,
0,
-13,
-4,
38,
-33,
17,
4,
27,
-51,
-27,
23,
-42,
17,
-6,
54,
7,
-45,
17,
-20,
1,
50,
-10,
-3,
18,
57,
-37,
3,
5,
46,
16,
21,
76,
69,
19,
-59,
20,
35,
-43,
48,
16,
32,
-18,
31,
2,
-4,
0,
1,
53,
9,
-7,
0,
38,
28,
-10,
1,
-11,
31,
-2,
-2,
58,
29,
-2,
-12,
-35,
-59,
0,
24,
-14,
38,
48,
15,
23,
0,
35,
38,
-10,
51,
-12,
11,
-18,
11,
-12,
-15,
-15,
-15,
-65,
-4,
0,
-21,
-6,
39,
18,
-4,
8,
90,
32,
15,
-10,
-36,
0,
-32,
-32,
-21,
33,
24,
15,
28,
-22,
32,
-56,
-42,
-9,
49,
-7,
-31,
-55,
10,
-33,
23,
24,
12,
-40,
28,
8,
-34,
39,
37,
18,
-20,
-12,
-41,
-18,
18,
68,
42,
18,
-1,
-41,
11,
12,
48,
-14,
16,
-25,
-3,
6,
16,
22,
23,
6,
0,
5,
22,
-30,
-4,
33,
30,
51,
-46,
17,
-37,
19,
66,
-4,
-27,
20
] |
Carr, J.
This suit was instituted by the plaintiff on the 3d of November, 1947. The bill of complaint alleged in substance that in the month of December, 1946, plaintiff desired to buy an automobile for himself, that he discussed the matter with defendant and was told by her that she could obtain immediate delivery of a car, that relying on such assurance plaintiff paid to defendant the sum of $200 for deposit by her on the purchase, that shortly thereafter, at her request, he obtained a cashier’s check in the sum of $1,626.29, payable to a Pontiac automobile sales agency, and delivered such check to defendant. Thereupon defendant procured delivery of the automobile, advising plaintiff at the time that it was necessary in making the purchase to take the title in her own name, and that she could not give him possession, or transfer the title, for a period of 6 months. The bill further set forth that upon the expiration of said period plaintiff demanded possession of the car, and transfer of the title, which demand was refused. On the basis of the alleged fraud plaintiff asked that he be decreed to be the owner of the car, that defendant be restrained from disposing of it or encumbering it during the pendency of the suit, and further that she account to him for the use thereof.
The answer filed by the defendant admitted the payments by plaintiff and the purchase of the car by her. All allegations of fraud were denied; and by way of further answer to the bill the defendant alleged in her pleading that at the time of the trans action in December, 1946, plaintiff was engaged to marry defendant’s mother, that there was conversation between the parties with reference to the purchase of a home in which defendant was to live with her mother and the plaintiff, and that the automobile in question was given by plaintiff to defendant and her' mother as a Christmas gift because of the contemplated marriage and the plans with reference to establishing a home. Defendant further claimed that she took title to the car in her name because her mother did not drive an automobile, and that in all respects she acted in good faith.
On the trial of the case plaintiff testified in his own behalf, substantially in accord with the averments of his bill of complaint. He denied any agreement on his part to marry the defendant’s mother and any intention to make a gift of the car. He further claimed that he did not authorize defendant to take the title in her name, and that he was told by her that it was his car. The proofs do not establish that he at the time insisted that possession of the car should be turned over to him in order that he might use it. According to his testimony he was, at the time of the trial, 57 years of age, was able to drive an automobile, and had, in fact, previously owned motor vehicles, including a truck which he used in connection with a vulcanizing business that he owned and conducted. He claimed further, as alleged in his bill of complaint, that defendant informed him that she could not transfer the title to him for a period of 6 months, and that after the expiration of 2 months she told him that the automobile belonged to her. He further claimed that he saw defendant after the expiration of 6 months following the purchase of the car, asked that it be turned over to him, and was refused. Thereafter, under date of September 18, 1947, he wrote to defendant’s mother stating, in substance, that he was ill, that he needed money, and that he would like to have the automobile returned to him in order that he might sell it to raise money for medical expenses. Defendant did not comply with the request made to her mother, and the present suit was instituted.
Defendant and her mother testified to attentions that plaintiff had paid the latter, that a definite engagement existed, that plaintiff was desirous of buying a fur coat for defendant’s mother, and that he offered to pay her expenses, as well as defendant’s, on a contemplated trip to Florida, which, however, was not taken. Defendant and her witness both insisted that the ear was a gift and that plaintiff was not in any way deceived or defrauded. They further claimed that during the summer of 1947 plaintiff’s visits to their home became less frequent and finally ceased prior to the written request for the return of the car. In substance it was the claim of defendant that plaintiff changed his mind with reference to the contemplated marriage and desired a return of the gift that he had made to her and her mother.
After listening to the testimony of the parties, the trial court came to the conclusion that plaintiff had failed to sustain the burden of proof resting on him, that the facts were substantially as claimed by defendant, and that the automobile was a gift to her and her mother. A decree was entered accordingly, dismissing the bill of complaint, and plaintiff has appealed.
In order to be entitled to the relief sought, the burden rested on the plaintiff to establish by clear and satisfactory proof the charges of fraud made against defendant. Gardner v. Gardner, 311 Mich 615; Groening v. Opsata, 323 Mich 73. This he failed to do. His testimony was not corroborated and was, as the trial .judge pointed out in his opinion, somewhat evasive and contradictory. As before noted, it does hot appear that he insisted on the possession of the ear, irrespective of the fact that defendant had the title thereto, following its purchase. The automobile remained in defendant’s possession, and over a period of some 4 or 5 months he rode in the vehicle, on several occasions, with defendant and her mother. He denied that they looked at property with the purpose in mind of purchasing a home, but his testimony in this regard is not convincing. He testified that the parties looked, on a few Sundays, for a house to purchase, but later claimed that he had not understood the question. His statements were squarely in conflict with the claims of defendant and her mother as to his conduct. It is significant to note that plaintiff testified that on one occasion the parties went to a beer garden, and that he was in the automobile with them, other than on such specific occasion, “quite a few times.”
We agree with the conclusion of the trial judge that the letter above referred to, written by plaintiff to defendant’s mother on September 18, 1947, is not consistent with the claims set forth in the bill of complaint or with his testimony. In part said letter reads as follows:
“I am very sorry that I have to write this to you on this theme, because I was of different thought. I wanted -it better, but it happened that way against my thoughts and my intentions, so that I am forced to do this, so, Mrs., you know curing myself costs a lot of money. The little money that I had in the bank is almost depleted, and I cannot work any longer. My only solution to get out of this is this. You have an understanding with your daughter, I would like to have the automobile, which I bought, returned, and in the shortest possible time. Will have to sell it for further medical expenses. So please talk it over with your daughter in this case, and let me know in the very near future.”
It is a fair inference from the language quoted that after the purchase of the automobile plaintiff changed his mind with reference to contemplated future plans. In his testimony he did not undertake to explain such language. It is significant also that he asked that the car be returned to him .because of his need for money, but without making the slightest suggestion that he considered he had been defrauded in the transaction.
The issue in the case is wholly one of fact. The trial court had the advantage of seeing the witnesses, listening to their testimony, and observing the manner in which such testimony was given. While this Court hears the matter de novo on the record submitted here, due consideration should be given to the conclusions of the trial judge. Zak v. Gray, 324 Mich 522. From an examination of the record we are impressed that his disposition of the case was correct. It must be said that plaintiff failed to sustain the burden of proof resting on him. The finding that the automobile was a gift to defendant and her mother is supported by the proofs. Being fully executed, it was not subject to revocation.
The decree of the trial court is affirmed, with costs to defendant.
Boyles, C. J., and Reid, North, Dethmers, Butzel, Bushnell, and Sharpe, JJ., concurred. | [
-14,
50,
-16,
15,
35,
-41,
30,
-18,
17,
19,
31,
0,
11,
6,
-11,
-2,
78,
-18,
30,
-49,
-29,
-37,
-63,
-19,
-31,
1,
56,
-33,
-40,
14,
-10,
-3,
-4,
-9,
-3,
28,
50,
0,
3,
32,
-31,
4,
14,
56,
15,
-10,
2,
-40,
22,
-23,
17,
-46,
25,
-6,
17,
-27,
-9,
-34,
-14,
-7,
10,
-36,
64,
-7,
-20,
-19,
44,
9,
-22,
22,
0,
-28,
-12,
-35,
-32,
-36,
23,
-10,
9,
-5,
13,
-31,
90,
-24,
-7,
31,
8,
12,
-66,
-30,
-68,
23,
-29,
-19,
-12,
18,
-33,
48,
45,
-17,
-35,
-52,
-8,
29,
62,
69,
-12,
-48,
-54,
28,
19,
-10,
45,
-35,
28,
-3,
-13,
5,
-10,
-41,
34,
15,
-4,
-24,
-4,
7,
-32,
-25,
21,
19,
10,
7,
32,
39,
-22,
-59,
-7,
-27,
21,
-12,
4,
66,
-20,
14,
-8,
46,
9,
-16,
-9,
-12,
-2,
-15,
5,
46,
0,
-33,
-5,
-44,
21,
-18,
6,
11,
13,
18,
13,
-1,
-25,
29,
3,
-32,
9,
7,
-36,
-49,
26,
0,
-19,
-23,
-64,
-30,
20,
40,
19,
37,
-1,
-17,
9,
6,
25,
-38,
16,
-42,
38,
30,
14,
43,
17,
-25,
15,
-4,
-9,
-45,
-38,
-11,
3,
-3,
-26,
-27,
31,
9,
-14,
41,
42,
-15,
-48,
-5,
5,
-60,
-36,
13,
6,
-59,
2,
14,
-36,
-26,
21,
-22,
40,
32,
-5,
45,
-46,
18,
-20,
22,
37,
-38,
24,
2,
-21,
-3,
34,
-28,
-32,
-21,
-20,
23,
44,
-9,
-3,
0,
-27,
35,
21,
-41,
22,
38,
45,
29,
-18,
38,
4,
13,
-14,
-24,
25,
-23,
0,
-30,
2,
-45,
-6,
21,
16,
-22,
-40,
31,
-13,
-28,
-3,
3,
-56,
-28,
13,
-21,
-7,
13,
7,
-27,
16,
8,
23,
-26,
0,
32,
44,
9,
-45,
44,
-5,
-47,
7,
-18,
-2,
-45,
-18,
-25,
-52,
22,
-18,
-31,
36,
-22,
41,
0,
-18,
-6,
-10,
34,
19,
32,
-9,
48,
18,
16,
25,
-29,
-36,
1,
-6,
-18,
-14,
-2,
18,
-12,
0,
25,
-3,
11,
26,
36,
24,
13,
-6,
-13,
19,
-12,
-43,
0,
-32,
-13,
-19,
-14,
-7,
43,
54,
-21,
-28,
58,
-19,
21,
14,
-14,
9,
-2,
15,
-11,
-25,
63,
-2,
-22,
-61,
15,
-30,
-49,
-54,
-50,
-15,
41,
17,
-51,
-23,
-7,
0,
-19,
-5,
-54,
6,
-20,
-30,
19,
-13,
7,
8,
-54,
14,
-11,
-76,
36,
-6,
58,
-16,
-71,
-70,
5,
23,
48,
-5,
19,
-8,
-29,
26,
36,
12,
6,
41,
-20,
0,
3,
4,
28,
11,
-13,
20,
-82,
23,
-23,
-5,
49,
-1,
2,
51,
-8,
51,
-4,
-20,
-41,
19,
14,
17,
15,
3,
41,
10,
20,
6,
-25,
38,
-8,
68,
-12,
18,
-1,
12,
41,
41,
32,
-7,
-56,
-8,
-38,
-12,
-10,
12,
-19,
16,
0,
-12,
3,
13,
22,
9,
20,
4,
24,
24,
-42,
-18,
-23,
-49,
45,
-2,
-37,
-26,
-48,
-53,
-36,
-24,
26,
29,
-13,
-28,
57,
0,
-34,
-32,
21,
-38,
-12,
-11,
14,
22,
52,
28,
-3,
14,
21,
-24,
5,
-20,
-10,
-20,
-3,
-15,
29,
55,
63,
22,
19,
24,
26,
8,
17,
-36,
0,
65,
-6,
6,
-5,
32,
18,
-9,
-13,
14,
-1,
9,
-5,
-16,
-71,
-24,
43,
-19,
-16,
-48,
7,
-5,
-26,
-6,
37,
7,
-37,
11,
3,
14,
35,
22,
-16,
-28,
25,
6,
19,
27,
16,
45,
-2,
-12,
-29,
19,
-3,
-27,
0,
23,
-15,
13,
1,
-5,
-19,
-42,
4,
-28,
-9,
-4,
-9,
-47,
7,
10,
70,
3,
-25,
-3,
-30,
37,
-5,
75,
-5,
-16,
-35,
-3,
-45,
-6,
-30,
-7,
16,
-10,
27,
-17,
58,
-34,
-23,
9,
16,
34,
-1,
31,
4,
-36,
-32,
-3,
36,
31,
18,
45,
-17,
9,
-40,
-3,
12,
25,
-43,
-8,
-48,
7,
23,
10,
2,
2,
48,
-14,
-53,
-32,
16,
21,
1,
9,
11,
15,
3,
-44,
-57,
-32,
-5,
-6,
26,
-15,
-2,
0,
-63,
-18,
5,
-6,
-82,
-11,
12,
-15,
-31,
31,
-1,
-22,
10,
-40,
-49,
71,
19,
38,
2,
-30,
20,
39,
-15,
0,
11,
15,
-37,
-79,
4,
28,
-23,
32,
-1,
6,
-55,
-20,
13,
-1,
19,
30,
-28,
11,
25,
-39,
-25,
-24,
35,
-40,
34,
-7,
30,
1,
-3,
-8,
-10,
10,
-49,
-13,
16,
49,
9,
-43,
-62,
-28,
-7,
25,
10,
10,
29,
33,
-24,
11,
18,
33,
15,
-14,
-33,
-15,
24,
45,
-76,
13,
-24,
0,
42,
50,
-16,
28,
-11,
-38,
-7,
37,
4,
-6,
-13,
33,
30,
28,
21,
-12,
2,
8,
-69,
0,
35,
13,
-17,
-2,
29,
0,
10,
49,
-32,
-75,
-55,
12,
-33,
-39,
-10,
43,
-2,
45,
5,
-2,
-48,
-11,
35,
11,
-28,
54,
-18,
18,
14,
19,
-14,
20,
-9,
-22,
43,
22,
-4,
-21,
-60,
-39,
42,
20,
6,
43,
7,
1,
30,
-15,
-35,
-11,
-54,
0,
-88,
-36,
-1,
14,
38,
-9,
-1,
42,
-8,
-37,
9,
-12,
-44,
-36,
3,
0,
-28,
-16,
-10,
26,
37,
-57,
67,
28,
-70,
11,
16,
0,
13,
-28,
60,
51,
50,
-3,
21,
35,
6,
-4,
-26,
-21,
16,
-28,
-4,
-17,
-9,
-28,
-21,
-8,
-27,
-27,
-49,
39,
-3,
41,
-20,
65,
-24,
36,
12,
-12,
5,
16,
-12,
74,
-37,
12,
19,
5,
-11,
-17,
64,
-47,
9,
35,
-33,
-37,
10,
-6,
33,
25,
-73,
-27,
-9,
8,
15,
18,
-45,
-2,
38,
-21,
-35,
2,
7,
6,
-9,
-41,
9,
47,
-7,
14,
16,
-21,
14,
3,
27,
2,
2,
41,
-43,
-28,
25,
14,
-14,
15,
-12,
15,
-5,
49,
4,
5,
20,
39,
-2,
-9,
-15,
35,
18,
10,
-29,
-25,
-30,
-27,
-43,
12,
-20,
22,
31,
-21,
32,
10,
21,
-21,
-51,
-5,
-19,
-42,
-36,
-9,
22,
15,
-3,
21,
-21,
12,
30,
-12,
35,
8,
26,
-53,
14,
-22,
-11,
38,
6,
-33,
5,
2,
-2,
-58,
43,
65,
-35,
-21,
29,
-18,
-47,
37,
16,
-8,
33,
17,
-18,
-2,
15,
30,
-19,
-18,
-44,
41,
-18,
21,
-68,
-10,
7,
12,
12,
-32,
7,
8,
56,
-28,
40,
-38,
-3,
38,
-16,
0,
8,
57,
-2
] |
Dethmers, J.
In a previous case plaintiff filed a bill of complaint for divorce in the Ottawa county circuit court and defendant filed an answer and cross bill. On May 17, 1948, both parties were present in court, personally and by attorneys, whereupon plaintiff withdrew her bill of complaint and defendant was permitted to proceed to hearing on his cross bill. Defendant was on that date awarded a decree of divorce. Plaintiff, present at the hearing, evidently desired the divorce but was dissatisfied with the property settlement provided for in' the decree and took an appeal here, urging that defendant had failed to make out a case for divorce. On May 18, 1949, this Court handed down its opinion in that case, reversing the decree and saying: “We find no grounds for divorce.” (325 Mich 47.) Eight days later the defendant husband returned to the home of parties, from which he had absented himself during pendency of the suit, brought in his luggage and announced that he was there to stay, in accord with the opinion of this Court. Plaintiff wife refused to permit him to stay, removed his luggage from- the house, and on that same date, May 26, 1949, commenced this suit for divorce in the Kent county circuit court. Hearing in that court was had on August 30,1949, and a decree of divorce was granted to plaintiff. Defendant is apparently as dissatisfied with the property settlement decreed in this case as plaintiff was with that in the former case and brings this appeal. He contends in his brief that no divorce should have been granted at all.
Testimony adduced in this case in support of plaintiff’s claimed grounds for divorce, which, incidentally, are the identical grounds alleged in her hill of complaint filed in her' previous suit, relates to acts and occurrences antedating the commencement and hearing of the former suit in the Ottawa county circuit court. Plaintiff testified that defendant continually criticized her rearing of the children and preparation of meals. Defendant admitted it, but contended that his criticisms were justifiable and proper. Plaintiff claimed that defendant subjected her to threats and physical violence. Defendant denied this, except for an occasion when he wrestled with her over possession of some money. She testified that he was quarrelsome; he testified, in turn, that he quarreled only upon provocation by her. She claimed nonsupport; he denied it, and the record seems to bear him out in that respect. Defendant, on the other hand, charged plaintiff with familiarity with another man and was supported therein by testimony of the latter’s wife. Plaintiff denied that her relations with the man were improper. The record indicates that her conduct was at least indiscreet, if not improper. Both parties have been quarrelsome. Each makes charges against the other. The wife seems no more free from blame than the husband. Neither is entitled to a divorce.
The decree of divorce is reversed. A decree may enter in this Court dismissing the cause, without costs.
Reid, C. J., and Boyles, North, Butzel, Carr, Bushnell, and Sharpe, JJ., concurred. | [
-37,
0,
22,
-11,
-85,
-37,
-46,
-3,
-8,
16,
-25,
-9,
-4,
0,
18,
-22,
-17,
0,
-3,
-32,
-86,
18,
1,
65,
15,
27,
4,
-22,
-21,
-30,
-19,
38,
-24,
19,
14,
-51,
48,
-31,
38,
35,
-6,
-27,
16,
-49,
-16,
-7,
6,
13,
-15,
20,
-12,
-23,
-5,
32,
7,
9,
-58,
19,
8,
-19,
-5,
4,
-38,
21,
7,
-12,
37,
-24,
-17,
-2,
20,
-32,
-3,
-18,
-3,
-7,
0,
-11,
-21,
55,
44,
19,
0,
8,
29,
-5,
40,
9,
-44,
34,
3,
38,
-52,
-12,
48,
-20,
3,
42,
5,
25,
-43,
-14,
-32,
-15,
4,
31,
24,
7,
-26,
10,
77,
-22,
48,
16,
21,
-29,
-32,
-106,
19,
-39,
32,
-15,
12,
12,
7,
10,
-56,
-16,
70,
5,
-14,
19,
-8,
-25,
-24,
-74,
10,
-58,
-49,
-25,
75,
26,
12,
-42,
25,
35,
-39,
18,
14,
-34,
-55,
10,
13,
8,
11,
-18,
21,
-67,
-21,
-21,
24,
2,
-34,
-38,
-23,
-33,
-1,
41,
8,
-39,
24,
41,
-39,
34,
13,
-7,
0,
48,
-19,
40,
65,
16,
23,
-48,
-22,
26,
-48,
-47,
-34,
5,
35,
-37,
13,
0,
22,
29,
-15,
57,
2,
5,
-4,
-55,
-4,
6,
-4,
1,
53,
20,
-29,
-38,
-24,
-4,
17,
-20,
-44,
-11,
65,
-20,
-11,
9,
8,
-15,
32,
57,
-55,
-50,
22,
33,
20,
-17,
-34,
-46,
-22,
0,
-24,
-24,
28,
17,
23,
39,
-52,
-47,
-9,
11,
33,
17,
-13,
87,
34,
41,
0,
35,
-13,
-7,
45,
-1,
5,
34,
6,
23,
3,
-12,
17,
31,
2,
25,
20,
3,
13,
-33,
18,
15,
38,
-12,
7,
-10,
-27,
39,
17,
32,
-1,
45,
10,
-8,
-1,
29,
0,
30,
23,
12,
-36,
-57,
-27,
-8,
20,
-2,
19,
-6,
-10,
18,
-12,
-15,
-7,
-19,
-4,
-29,
-3,
-16,
-4,
-5,
46,
8,
54,
-43,
22,
21,
7,
-20,
2,
-2,
2,
0,
-11,
-7,
-46,
38,
-27,
-3,
22,
-9,
-30,
26,
12,
5,
19,
-28,
-16,
-35,
-34,
-15,
11,
-39,
-6,
50,
33,
20,
-20,
9,
22,
8,
-11,
-20,
-15,
27,
-56,
15,
-9,
-93,
-20,
22,
-31,
21,
-33,
-15,
-2,
-1,
28,
-79,
20,
42,
3,
-9,
-9,
25,
-20,
-5,
8,
-15,
-11,
40,
20,
-5,
-15,
33,
19,
26,
-16,
-47,
27,
-19,
-4,
-37,
30,
-38,
4,
-14,
4,
-43,
-37,
28,
-4,
-5,
28,
38,
23,
22,
29,
-56,
-8,
17,
28,
-85,
-21,
5,
35,
10,
39,
-4,
27,
4,
28,
31,
18,
-32,
-4,
-17,
26,
-45,
38,
86,
-8,
43,
19,
5,
29,
22,
-18,
1,
-19,
2,
-29,
42,
-3,
-5,
-20,
-33,
-37,
9,
12,
-39,
2,
-37,
4,
27,
0,
38,
13,
39,
22,
-44,
44,
-11,
-27,
-30,
51,
4,
-39,
5,
-47,
29,
17,
-13,
-35,
33,
0,
32,
-1,
-25,
-38,
-21,
14,
20,
-39,
1,
1,
4,
-8,
-40,
-20,
4,
-20,
-1,
-9,
27,
-19,
-24,
-50,
-4,
-17,
30,
-34,
-19,
45,
11,
34,
15,
-47,
63,
7,
19,
-15,
-34,
33,
0,
-55,
19,
56,
-23,
16,
-11,
0,
31,
41,
-8,
52,
14,
48,
-56,
-23,
52,
21,
24,
-41,
18,
14,
22,
-19,
-10,
32,
-15,
17,
-8,
24,
0,
15,
53,
-2,
-40,
-36,
2,
37,
-7,
-29,
-20,
7,
8,
-24,
4,
-47,
-24,
14,
5,
-6,
0,
0,
13,
10,
0,
-15,
33,
1,
18,
11,
-28,
9,
22,
-42,
-13,
-25,
-1,
13,
-17,
-17,
-13,
-9,
-17,
43,
48,
18,
-7,
-28,
-8,
42,
-6,
24,
-34,
22,
17,
24,
-8,
-13,
-68,
-24,
-54,
-8,
35,
-38,
37,
23,
-28,
23,
-44,
-48,
19,
-16,
29,
-34,
-24,
-48,
12,
1,
21,
31,
2,
-17,
-24,
66,
18,
-41,
25,
2,
-17,
54,
-14,
2,
3,
-2,
-7,
-23,
30,
-21,
31,
-63,
15,
-39,
12,
-34,
-46,
-10,
-19,
19,
63,
-10,
17,
-21,
23,
67,
-13,
-31,
-1,
-18,
-56,
-7,
68,
0,
-6,
20,
23,
10,
4,
-19,
9,
63,
6,
34,
-26,
-17,
24,
23,
11,
-2,
-13,
-8,
28,
-20,
-9,
95,
12,
0,
6,
-24,
-28,
-22,
-6,
-28,
2,
28,
27,
32,
49,
-33,
27,
14,
-12,
-22,
16,
-17,
-8,
16,
-40,
4,
5,
10,
-54,
-20,
13,
69,
-8,
27,
2,
-25,
18,
17,
-21,
4,
-13,
5,
-47,
36,
-30,
35,
8,
0,
-27,
-32,
11,
27,
1,
-26,
37,
-1,
-10,
-37,
13,
23,
-26,
-4,
-22,
-1,
-3,
34,
-6,
13,
-22,
30,
-13,
16,
-41,
-48,
-33,
45,
31,
-7,
-47,
-38,
-20,
3,
-25,
61,
24,
-70,
-19,
-8,
-17,
-16,
-3,
-7,
14,
13,
-23,
-32,
-26,
-20,
3,
33,
-9,
40,
-5,
-6,
0,
-34,
-60,
-32,
-48,
19,
5,
-36,
-38,
8,
-30,
15,
75,
-9,
-2,
-5,
36,
-8,
23,
-28,
45,
-5,
3,
-24,
-30,
-6,
35,
17,
39,
29,
0,
26,
-39,
3,
11,
2,
-9,
22,
15,
5,
-55,
65,
-31,
40,
44,
20,
-25,
15,
-37,
-47,
28,
11,
-10,
-11,
14,
54,
47,
95,
44,
15,
0,
11,
-28,
-44,
-22,
3,
-12,
8,
34,
-24,
-45,
15,
-39,
-67,
-56,
34,
-13,
0,
-37,
19,
0,
20,
-41,
-28,
-4,
-37,
20,
36,
-30,
-2,
0,
-29,
-4,
-9,
22,
-35,
3,
50,
-19,
-3,
1,
7,
47,
13,
-9,
-71,
-29,
-30,
-23,
-60,
-4,
-28,
22,
37,
10,
-1,
-56,
-29,
-16,
33,
20,
-6,
-11,
-24,
18,
-25,
6,
17,
5,
3,
-37,
5,
0,
-5,
5,
-9,
-16,
7,
-14,
-17,
40,
9,
-52,
-34,
-23,
-26,
10,
-12,
20,
26,
29,
1,
-37,
2,
-11,
21,
40,
10,
2,
-9,
49,
-71,
6,
25,
12,
-34,
21,
16,
-11,
-12,
-19,
7,
23,
-2,
6,
0,
-36,
5,
42,
-9,
24,
-39,
-28,
-31,
-12,
10,
-13,
-15,
54,
-22,
-48,
18,
20,
-29,
68,
-38,
-12,
-17,
-2,
-47,
-26,
9,
10,
53,
34,
16,
41,
-18,
-19,
12,
-8,
-38,
-28,
-1,
31,
28,
-1,
0,
62,
-38,
27,
-15,
51,
29,
58,
-21,
44,
-44,
-59,
-1,
-22,
31,
22,
-26,
19
] |
Sharpe, J.
Plaintiff filed a petition for separate maintenance under the provisions of CL 1948, §§ 552.301, 552.302 (Stat Ann §§ 25.211, 25.212), in which she alleged that the parties were married in 1922; that as a result of the marriage 2 children were born whose names and ages are, Mary born June 27, 1926, and Katherine born April 11,1929 ; that during the first 10 years of their marriage they lived agreeably in the marriage relation, but beginning in 1932 defendant began to exhibit a disregard for plaintiff by absenting himself from the home of plaintiff and defendant for reasons unconnected with his business, social or civic obligations; that about this time he became infatuated with and was carrying on an affair with a woman residing in the city of Jackson who had been a mutual friend of the parties; that such association with the woman became notorious and a public scandal thus bringing shame and humili ation to plaintiff; that after 15 years of such association defendant became interested in his private secretary and their association has also become a public scandal; that for approximately 20 years, defendant has been employed by the Commonwealth & Southern Corporation; that his present yearly salary is $10,000 or more; that he has other income from investments of $5,000 or more yearly; and that the parties own their own home in Jackson.
Defendant filed an answer to plaintiff’s petition for separate maintenance in which he denied that there was any improper conduct on his part in connection with his friendship with the 2 women. He asserts that his salary is $9,000 per year and that he has other income of approximately $1,800 per year. Defendant also filed a cross bill of complaint in which he seeks a decree for divorce. He alleges that plaintiff has lost all love and affection for him, refused to eat her meals with him, falsely accused him of intimate relations with other women, has adopted an attitude of belittling defendant in his work and civic activities, and treated his relatives with contempt; and that he has recently been transferred to New Tork where his monthly expense is approximately $300.
The cause came on for trial and after testimony was taken the trial court filed an opinion in which he stated:
“The court is convinced that plaintiff has sustained the burden of proof sufficient to justify her in obtaining a decree of separate maintenance from the defendant, and the court is further satisfied that the defendant has failed to sustain the burden of proof with reference to his cross bill for absolute divorce and, hence, he is entitled to no affirmative relief as prayed for in said cross bill.
“This brings the court to the question of what provision can or should be made for petitioner under the provisions of the separate-maintenance' statute. From the proofs it appears that the parties own as-tenants by the entireties a home here in Jackson, which plaintiff is now occupying and where at the present time are either one or both of the daughters. Defendant’s occupation continues with the Commonwealth & Southern Corporation, but beginning January 1, 1949, he was transferred from the Jackson office thereof to the New York office of said company, where he has lived off and on since. His last known salary with that company was $9,000 a year, but after his transfer to New York he was allowed an additional sum computed at the rate of $100 a month because of alleged maintenance of 2 residences, 1 in New York and 1 in Jackson. In other words, his actual salary from his company at the time of trial was $10,200. In addition he owns some various-stocks of no inconsiderable value but not of great annually as to dividends. He estimated his annual dividends not to exceed $1,000 although he estimated the value of the stocks owned by him at approximately $22,000. The home in Jackson is owned by the entireties by the parties and has a possible value of upwards of $20,000. Plaintiff has one of the family cars, and defendant has a much-more-recent model automobile which, however is still in Jackson in the custody of the so-called ‘Miss CJ This would indicate that the annual gross earnings' of the defendant are somewhere between 11 and $12,000 annually.
“The youngest daughter is gainfully employed, so that, presumably, under our tax laws defendant is entitled to claim but 2 exemptions, one for himself and one for his wife. His net annual income therefore, based upon such figures may be- from $9,000' to $10,000. * * *'
“It is the court’s considered opinion that a decree of separate maintenance in accordance with the provisions of the statute should be prepared and entered in this cause in favor of the plaintiff and against the defendant, which will permit her to-have continued •occupancy of the Jackson home, which is her right as a tenant hy the entirety, and that the defendant shall have set apart and allotted from his monthly income and revenue for the support and maintenance of the plaintiff the sum of $375 per month. Plaintiff is to maintain herself and the home, paying all services—heat, light, and water bills—incident to the operation of the home, together with the reasonable maintenance and repair thereof from •such sum of money so allotted for her use, support, and maintenance from her husband’s earnings. Defendant, in addition to the said monthly payment hereinabove ordered, shall pay the taxes annually .assessed against said premises, together with the insurance premiums necessary or requisite to be kept in force on' said home for the protection of the respective parties hereto therein. No provision need be made in said decree for either of said children, it appearing that one is past the age of 21; and other •soon will be and, in any event, is more or less self-supporting at this time and being considerably past the age of 17.”
A decree was entered in accordance with the opinion filed in said cause. Defendant appeals and urges that the trial court was in error in finding that plaintiff was entitled to a decree of separate maintenance. We have carefully examined the record and conclude that there is competent testimony to support the finding of facts of the trial court that plaintiff is entitled to a decree of separate maintenance. We find no misconduct on the part of plaintiff that would deny her relief in a court of equity. We recognize the advantages of the trial judge, who saw and heard the parties and their witnesses, and are convinced that had we been sitting as a trial court we would not have reached a different conclusion.
The trial court awarded plaintiff the sum of $375 per month plus the use of the home with defendant paying taxes and insurance on the jointly-owned home. Neither party is satisfied with the maintenance requirement. The record shows 'that defendant has a net income of between $9,000 and $10,000 per year. The allotment is practically an equal division of his income.
In the statutory proceeding for separate maintenance, courts do not award the wife title to any of the husband’s. property. In determining a proper allowance for the wife, courts should take into consideration the husband’s income, the age and health of both parties, the station in life and manner of living of the parties prior to the separation. In coming to our decision in this cause we take into consideration that defendant should not be called upon to maintain and support his 2 self-supporting daughters; that plaintiff has free house rent and is apparently in normal health for a woman of her age; and that defendant has some obligation in looking after the welfare and comfort of his mother. In our opinion, considering all the circumstances involved in this case, an allotment of $300 per month should adequately enable plaintiff to live on a standard of living sufficient for her station in life.
' The decree, as modified, is affirmed, but without costs as neither party has fully prevailed.
Beid, C. J., and Boyles, North, Dethmebs, Butzel, Carr, and Bushnell, JJ., concurred. | [
-20,
0,
-12,
4,
-42,
-17,
-63,
-3,
21,
-36,
-40,
-38,
25,
4,
-25,
-6,
-4,
-22,
-7,
-30,
35,
9,
22,
23,
29,
42,
-35,
21,
-18,
-36,
25,
20,
-55,
19,
-19,
-10,
26,
13,
-23,
-5,
-1,
-39,
11,
29,
-23,
30,
1,
4,
-29,
0,
-14,
0,
51,
-56,
-39,
9,
22,
26,
23,
16,
-11,
42,
-12,
41,
-14,
28,
35,
17,
-11,
-25,
-19,
-27,
12,
-26,
2,
-34,
11,
-6,
13,
5,
5,
17,
-28,
-10,
-33,
35,
8,
24,
-32,
51,
-8,
45,
-54,
21,
10,
2,
6,
39,
40,
42,
-8,
-7,
15,
5,
16,
54,
27,
-29,
-33,
46,
19,
-27,
60,
57,
12,
-16,
28,
-32,
-19,
-27,
64,
37,
3,
-27,
52,
-16,
-49,
-19,
-1,
-9,
39,
-14,
29,
-41,
7,
-66,
26,
-61,
-28,
-18,
37,
32,
16,
49,
38,
12,
-39,
0,
4,
-4,
0,
-6,
2,
6,
44,
-39,
0,
-24,
53,
-13,
-1,
9,
29,
-20,
-36,
-20,
-9,
43,
32,
24,
16,
29,
-37,
-25,
-6,
-35,
-60,
11,
-50,
-33,
21,
-5,
5,
-33,
-1,
-26,
4,
-49,
-84,
-21,
4,
-65,
24,
-15,
16,
13,
41,
-18,
8,
-11,
33,
-17,
30,
12,
0,
-18,
5,
55,
-28,
43,
21,
-7,
10,
-49,
-67,
25,
30,
-31,
-45,
34,
47,
-3,
4,
-30,
-44,
-21,
-10,
-33,
22,
-20,
-33,
11,
-28,
40,
-46,
-2,
8,
32,
46,
33,
-74,
-14,
-20,
19,
-25,
-7,
-60,
21,
-60,
22,
7,
37,
-52,
49,
10,
-19,
-2,
-1,
61,
28,
-42,
1,
-36,
-24,
1,
12,
22,
13,
54,
8,
-18,
29,
7,
-22,
-9,
-21,
12,
27,
-39,
3,
-1,
19,
-50,
-23,
40,
-25,
38,
-37,
56,
48,
-13,
-71,
3,
-7,
26,
16,
-1,
12,
-29,
-16,
7,
-23,
47,
-31,
13,
-4,
-24,
-28,
-5,
-2,
10,
-14,
-10,
-1,
11,
-23,
30,
-18,
-41,
-12,
6,
25,
-28,
11,
-42,
-14,
19,
-40,
43,
-19,
-21,
19,
29,
-37,
16,
-3,
17,
17,
9,
-1,
-14,
28,
6,
35,
-3,
8,
42,
-16,
-7,
17,
-65,
4,
12,
13,
-53,
9,
28,
-37,
-15,
9,
-18,
24,
15,
1,
-32,
-6,
34,
-24,
-12,
37,
11,
-13,
-62,
-11,
4,
10,
-16,
52,
22,
21,
3,
-32,
29,
-12,
-4,
2,
-29,
-11,
-38,
-38,
-9,
5,
20,
25,
-34,
27,
50,
0,
-11,
0,
28,
3,
-3,
30,
-6,
37,
-7,
-4,
2,
34,
-19,
-22,
-13,
75,
18,
5,
8,
-19,
27,
4,
8,
34,
-16,
-20,
0,
-16,
-5,
7,
7,
0,
-11,
34,
31,
-31,
36,
2,
-51,
13,
-71,
39,
2,
8,
17,
57,
-46,
-17,
1,
-5,
26,
-10,
-10,
-13,
31,
22,
13,
-84,
35,
17,
21,
-23,
22,
7,
-36,
-9,
-7,
-15,
-48,
4,
-26,
14,
-35,
29,
-5,
-33,
-2,
-8,
-18,
-22,
35,
-45,
2,
2,
7,
12,
25,
11,
-26,
-35,
58,
-5,
21,
-50,
-65,
15,
1,
19,
-8,
-17,
-89,
-24,
-33,
23,
46,
-33,
46,
-47,
-59,
-5,
6,
48,
-24,
-32,
28,
20,
-15,
-2,
11,
13,
-17,
-50,
36,
46,
55,
-20,
31,
30,
-5,
-29,
-5,
11,
0,
66,
-36,
-8,
17,
3,
15,
-48,
-2,
-10,
0,
5,
48,
13,
-33,
6,
27,
-33,
-35,
38,
8,
-1,
6,
-1,
-15,
-26,
-16,
0,
-4,
-23,
-6,
-43,
-4,
-33,
15,
6,
0,
16,
2,
-58,
2,
-35,
40,
14,
24,
48,
-37,
-17,
-19,
-25,
53,
-2,
-39,
-16,
-32,
-32,
17,
30,
-6,
14,
-36,
-42,
41,
-4,
45,
-31,
-45,
11,
-19,
-33,
10,
-3,
-7,
-32,
-22,
44,
-25,
77,
-3,
-40,
22,
8,
-21,
-40,
6,
26,
21,
-31,
-22,
-43,
0,
48,
-2,
-33,
64,
-10,
57,
58,
-11,
-65,
1,
-31,
23,
8,
20,
-23,
-2,
-22,
6,
-4,
-27,
13,
3,
30,
-10,
28,
10,
-29,
-18,
-7,
16,
34,
36,
10,
20,
-9,
36,
-51,
-45,
-16,
-16,
-47,
29,
88,
21,
0,
54,
40,
-23,
25,
-4,
5,
34,
47,
20,
-17,
2,
-20,
40,
-54,
25,
-57,
25,
12,
-8,
-2,
38,
-9,
-17,
-19,
2,
-26,
-26,
-22,
-23,
56,
-10,
2,
-6,
9,
-8,
20,
8,
-23,
-42,
-40,
-59,
-27,
7,
6,
8,
18,
-21,
3,
-27,
31,
-12,
11,
-1,
-23,
1,
16,
0,
-20,
23,
32,
33,
-22,
13,
-18,
39,
44,
-45,
-5,
-2,
-29,
-20,
-15,
-69,
17,
57,
11,
18,
21,
24,
-11,
14,
-2,
-18,
49,
-7,
12,
-19,
-4,
70,
4,
16,
-33,
-26,
-47,
8,
29,
16,
-20,
-23,
6,
-35,
-9,
28,
-18,
-38,
2,
-3,
10,
-20,
19,
-26,
-22,
9,
-26,
10,
5,
0,
-34,
-40,
-12,
51,
0,
86,
22,
-6,
-59,
11,
-70,
-27,
25,
-42,
0,
-8,
-28,
32,
75,
18,
1,
17,
36,
-7,
-34,
-5,
16,
21,
20,
9,
-2,
-81,
-17,
-36,
18,
-8,
-6,
27,
-22,
-24,
59,
2,
10,
-38,
11,
-36,
15,
8,
-49,
50,
11,
-13,
16,
12,
-8,
-89,
23,
39,
-46,
5,
6,
38,
35,
58,
-15,
52,
-29,
14,
25,
-37,
14,
6,
-36,
12,
5,
-11,
-22,
23,
-32,
-19,
-45,
1,
3,
20,
-21,
77,
-25,
34,
4,
-29,
-10,
-41,
10,
80,
-25,
28,
-5,
-69,
-17,
-6,
43,
-8,
31,
41,
-22,
-37,
1,
1,
0,
41,
-68,
-17,
-15,
2,
1,
-4,
-34,
-5,
6,
-17,
-5,
28,
-55,
3,
13,
-12,
-32,
-18,
-13,
-42,
-20,
-41,
52,
2,
31,
24,
1,
1,
-28,
0,
0,
-2,
-4,
7,
1,
23,
54,
67,
-28,
-16,
5,
29,
-36,
23,
-3,
28,
20,
5,
-33,
-15,
-25,
-25,
31,
-3,
-17,
-33,
26,
-23,
-16,
4,
43,
-6,
-16,
25,
-26,
21,
-8,
22,
39,
-4,
-22,
-27,
-16,
67,
53,
-47,
-21,
7,
-45,
5,
-54,
26,
47,
15,
-28,
7,
-20,
-7,
11,
-20,
44,
7,
-16,
-3,
6,
-46,
35,
82,
1,
8,
-5,
26,
29,
0,
-44,
-2,
13,
-4,
-3,
-19,
16,
4,
-13,
6,
58,
-36,
35,
-6,
48,
-27,
1,
-27,
47,
-55,
-6,
-26,
-68,
29,
8,
-2,
19
] |
Sharpe, J.
Upon leave granted, defendants appeal from an award of the department of labor and industry in which it was determined that plaintiff is entitled to compensation at the rate of $21 per week for total disability from January 16, 1948, to April 19, 1948, and for partial disability at the rate of $21 per week from April 19,1948, until the further order of the commission.
The essential facts are not in dispute. Plaintiff was an employee of defendant corporation as of April, 1947. His job was to operate a grinding machine. His duties required him to pick up a crankshaft with a small electric hoist, swing it into his machine and turn on the power. The machine would automatically perform the operation. Upon completion of the operation plaintiff then would swing the crankshaft over to a rack. On September 20, 1947, plaintiff was working the night shift. He started at 11:29 p.m., and ended at 6:45 a.m., the following morning. The men on this shift received a 22-minute lunch period. This period ran from 3 a.m., to 3:22 a.m. During this lunch period the men were free to come and go as they pleased. The men were not paid for the lunch period.
On the night in question, the union steward called a union meeting to be held during this period. The meeting was held in an aisle of the plant for the election of a shop steward. During the meeting a vote was cast and as plaintiff was voting, lie leaned forward to pnt his ballot in a hat and bumped his leg against a board which was standing by one of the machines. The bump did not break the skin. About 2 weeks after plaintiff received the bump, he went to see a doctor and about 4 months later he went to the company’s first aid and complained of a case of hives resulting from having applied a sulfa ointment to his leg. Plaintiff continued to work for defendant company until January 15, 1948, when he was rendered incapable of performing the duties of his employment by a leg ulcer and a dermatitis condition covering large areas of his body.
The contract between the employer and the union at the date of the injury provided in part as follows:
“The company further agrees to recognize the shop stewards systems as the preliminary agency for negotiating the settlement of any grievance now existing or which may arise in the future.
“There shall be one shop steward for each department. There may be variations from this rule by agreement between the bargaining committee and the management.
“Any employee or group of employees having a grievance or grievances shall proceed toward adjustment and settlement of such grievance by the following procedure: A, the matter will be first taken up with the steward of the department in which the grievance originates. And then the employee with the steward shall present the grievance-to the foreman under whom such employee is working.”
Under the above contract the shop steward was recognized as the preliminary agency in the grievance procedure.
The principal issue in this case is whether plaintiff’s injury arose out of and in the course of his employment. We have repeatedly held that the ques tion of whether an injury can be said to have arisen •out of and in the course of the employment depends upon the particular facts and circumstances of each •case. Under the statute (CL 1948, § 413.12 [Stat Ann 1949 Cum Supp § 17.186]), findings of fact by the workmen’s compensation commission are, in the absence of fraud, conclusive, if supported by •competent evidence.
In the ease at bar the commission made a finding of fact that plaintiff received a personal injury arising out of and in the course of his employment, but did not state that attendance at the election of a shop steward was in the course of his employment. The decision of the commission and the award made "thereon is one of first impression in this State.
Defendants contend that an injury occurring during a union meeting does not arise out of and in the course of employment and rely upon Pacific Indemnity Co. v. Industrial Accident Commission, 27 Cal App2d 499 (81 P2d 572). In that case the district -court of appeals of California had occasion to pass upon this question. We quote from the opinion in that case:
“While attending the union committee meeting-held in rooms on the top floor of the employer’s huilding shortly after 8 a.m., October 11, 1937, respondent Kendall attempted to boost herself up to sit on a table. Her hand slipped from the table and she fell injuring herself.
“This is the sole question to be determined:
“Was there substantial evidence to sustain this finding of the industrial accident commission:
“ ‘Emma Kendall * * * received an injury arising out of and occurring in the course of her employment when she fell from a table while attending an employees’ meeting’?
“This question must be answered in the negative. The law is settled that an industrial injury is com pensable only when the injury is received (1) while the employee is doing the duty he is employed to perform, and (2) as a natural incident of the work. Associated Oil Co. v. Industrial Accident Commission, 191 Cal 557, 562 (217 P 744). * * * ,
“In the instant proceeding it appears without contradiction that respondent Kendall was attending a union meeting from which her employer and his representatives were expressly excluded. At the time respondent Kendall was injured she was not acting for her employer nor engaged in his service. She was exercising a personal privilege for her own personal benefit in attending a meeting of an organization of which she was a member and the purposes of which were clearly for her own interests and not necessarily in any way for the benefit of her employer.”
Plaintiff urges that he sustained an injury while performing a normally required part of his employment for the mutual benefit of his employer and himself; that the steward system was not primarily a union activity, but was a normal and every day phase of the employment relationship; and that voting for the election of a steward was a part of plaintiff’s work and within the ambit of his employment. Plaintiff relies upon Kennedy v. Thompson Lumber Co., 223 Minn 277 (26 NW2d 459), and Amicucci v. Ford Motor Co., 308 Mich 151, in support of his claim.
In the Kennedy Case claimant was a shop steward charged with the duty of negotiating grievances. On the day in question claimant left his employer’s premises to call the union agent in order to expedite settlement and avert a work stoppage. Before reaching the phone, he fell and was injured. The court, in affirming an award, stated:
“We find that when Kennedy was hurt he was acting in the interests of the employer as well as the employees and that the injuries he sustained arose out of and in the course of his employment. We recognize that a shop steward is primarily a representative of the union.”
In the Amicucci Case we quoted with approval from Haller v. City of Lansing, 195 Mich 753 (LRA 1917E 324), as follows:
“The general rule as to injuries during intermissions from labor, especially where the accident occurs on the employer’s premises, is formulated from the decisions as follows in 1 Honnold on Workmen’s Compensation, p 381.
“ ‘Acts of ministration by a servant to himself, such as quenching his thirst, relieving his hunger, protecting himself from excessive cold, performance of which while at work are reasonably necessary to his health and comfort, are incidents to his employment and acts of service therein within the workmen’s compensation acts, though they are only indirectly conducive to the purpose of the employment. Consequently no break in the employment is caused by the mere fact that the workman is ministering to his personal comforts or necessities, as by warming himself, or seeking shelter, or by leaving his work to relieve nature, or to procure a drink, refreshments, food, or fresh air, or to rest in the shade.’ ”
The test to be applied in compensation cases of this nature may be found in Daniel v. Murray Corporation of America, 326 Mich 1, 12, where we said:
“In this State the test that has been followed is whether the employee, regardless of where his injury arose, either on or off the premises of his employer, was injured while within the ambit of his employment, and whether there was a causal connection between the injury and the employment.”
For cases holding that the injury was in the course of employment, see: Anderson v. Kroger Grocery & Baking Co., 326 Mich 429; Amicucci v. Ford Motor Co., supra; Schultz v. Chevrolet Motor Co., 256 Mich 393; Wyrwa v. Murray Corporation of America, 274 Mich 670; Mann v. Board of Education of City of Detroit, 266 Mich 271; Clem v. Chalmers Motor Co., 178 Mich 340 (LRA1916A 352, 4 NCCA 876); Haller v. City of Lansing, supra.
For cases holding that the injury did not occur in the course of employment, see: Luteran v. Ford Motor Co., 313 Mich 487; Holloway v. Ideal Seating Co., 313 Mich 267; Spooner v. Detroit Saturday Night Co., 187 Mich 125 (LRA1916A 17, 9 NCCA 647); Carnahan v. Mailometer Co., 201 Mich 153; Buvia v. Oscar Daniels Co., 203 Mich 73 (7 ALR 1301); State Treasurer v. Kaiser-Frazer Corp., 326 Mich 715; Rucker v. Michigan Smelting & Refining Co., 300 Mich 668; Pilgrim v. Menthen, 327 Mich 714.
There is a group of cases wherein an injury occurred while the injured party was performing acts of ministration to himself. In such cases compensation has been allowed. See Amicucci v. Ford Motor Co., supra. The facts in the case at bar do not come within the rule announced in those cases as, in the case at bar, plaintiff was not ministering to his personal comfort. In our opinion the case of Kennedy v. Thompson Lumber Co., supra, is not controlling. In that case plaintiff was injured while actively engaged in rendering a service to his employer. In the case at bar plaintiff was not actively engaged in rendering a service to his employer at the time of his injury. He was exercising a privilege common to all members of the union in the selection of a steward. It cannot be said that his injury arose out of and in the course of his employment.
The order of the workmen’s compensation commission is reversed, and the case remanded for entry of an order denying compensation. Defendants may recover costs.
Boyles, C. J., and Reid, North, Dethmers, Butzel, Carr, and Bttshnell, JJ., concurred. | [
12,
-6,
-60,
24,
6,
7,
-12,
-51,
-10,
-5,
-41,
8,
49,
14,
17,
-9,
27,
-20,
-2,
29,
-5,
-31,
33,
7,
8,
-18,
-48,
-29,
-39,
36,
-8,
21,
0,
-4,
-43,
11,
50,
0,
-11,
-18,
10,
14,
-8,
-5,
16,
-5,
28,
12,
32,
-19,
43,
43,
-8,
-26,
12,
23,
-13,
10,
-24,
-4,
-20,
25,
50,
-19,
58,
-4,
12,
0,
-37,
16,
-29,
-9,
6,
-47,
-18,
-26,
6,
59,
-13,
-7,
7,
-34,
-22,
-15,
-60,
98,
22,
64,
0,
-25,
-22,
-1,
6,
23,
-23,
7,
-55,
15,
22,
23,
-27,
6,
13,
-4,
17,
-28,
26,
-30,
-33,
53,
-7,
30,
34,
54,
26,
-25,
16,
-12,
7,
66,
31,
-19,
24,
-20,
17,
9,
-9,
-20,
-23,
47,
16,
13,
2,
0,
7,
0,
15,
-31,
-5,
-9,
-5,
50,
-20,
-5,
9,
13,
-28,
39,
24,
-4,
14,
-12,
2,
5,
-5,
-2,
33,
6,
39,
-26,
15,
-4,
36,
18,
33,
-36,
10,
34,
8,
14,
27,
3,
6,
-42,
16,
19,
41,
12,
-28,
17,
-72,
-41,
-17,
-8,
19,
-15,
-4,
-1,
42,
-7,
19,
-27,
-28,
-21,
0,
-52,
35,
-24,
19,
-7,
19,
-25,
18,
8,
-2,
26,
36,
54,
11,
51,
-14,
-23,
47,
-75,
-11,
31,
13,
-15,
-10,
-29,
-3,
29,
-27,
7,
-41,
-17,
-23,
7,
47,
-11,
-34,
53,
51,
34,
27,
-28,
-23,
-31,
30,
7,
-56,
-59,
-16,
11,
-36,
3,
7,
-57,
-19,
0,
-3,
50,
-35,
-16,
-42,
-31,
-17,
-9,
7,
-14,
-60,
50,
6,
63,
11,
1,
-4,
60,
22,
24,
-12,
-13,
36,
-37,
-26,
-81,
-36,
17,
76,
-35,
-25,
-4,
-44,
-8,
-41,
-37,
29,
-49,
-30,
33,
28,
-42,
22,
7,
49,
-24,
0,
32,
-22,
10,
-50,
-11,
-31,
-13,
1,
60,
-45,
-41,
7,
-30,
-4,
-62,
23,
-40,
35,
-28,
-15,
27,
-14,
-32,
-43,
59,
-25,
-2,
4,
-33,
-11,
3,
14,
-61,
-6,
-20,
-14,
49,
2,
2,
1,
51,
22,
-3,
36,
74,
30,
-11,
-21,
27,
40,
-43,
78,
-20,
10,
-10,
57,
-22,
10,
34,
17,
-36,
-45,
45,
35,
-83,
-7,
-19,
-4,
24,
11,
-23,
-21,
30,
-13,
-13,
28,
-73,
-46,
-8,
2,
0,
25,
23,
20,
2,
15,
-71,
-32,
5,
7,
10,
-2,
-6,
-40,
-6,
5,
29,
1,
35,
4,
-29,
-5,
27,
-6,
-47,
-22,
53,
35,
-40,
13,
-36,
-12,
-8,
0,
-22,
12,
-4,
7,
-24,
48,
-6,
-19,
-16,
71,
7,
-34,
-39,
41,
-3,
8,
12,
-23,
6,
-4,
-20,
0,
-64,
-18,
2,
-18,
-2,
-54,
0,
-37,
-8,
-4,
5,
-12,
-8,
-19,
19,
54,
1,
3,
-21,
46,
22,
-9,
-27,
-2,
-6,
40,
-9,
-40,
-21,
-31,
14,
27,
-1,
4,
-5,
0,
2,
-8,
-3,
30,
-26,
22,
-13,
-32,
-21,
13,
-34,
-14,
-58,
-11,
1,
-20,
-30,
-12,
19,
9,
31,
48,
-15,
-11,
-34,
19,
38,
-53,
33,
-13,
0,
-59,
-41,
28,
-32,
14,
-60,
21,
-62,
30,
-34,
-81,
-8,
-12,
22,
59,
24,
-17,
38,
-21,
0,
0,
-9,
-24,
31,
-10,
-53,
-22,
10,
-9,
-53,
-11,
-32,
42,
31,
27,
-1,
-1,
-21,
-43,
-54,
-30,
-4,
16,
35,
-24,
-73,
-37,
19,
43,
46,
33,
-4,
12,
19,
20,
-16,
11,
20,
19,
-18,
3,
2,
10,
58,
-16,
13,
-5,
32,
15,
-35,
-9,
29,
35,
39,
-7,
30,
-8,
-2,
-33,
-26,
13,
-2,
23,
14,
-42,
-68,
22,
-1,
2,
-10,
-11,
-9,
-2,
32,
44,
2,
-14,
39,
0,
-11,
17,
-2,
-57,
-32,
-16,
7,
3,
21,
37,
-43,
-18,
23,
14,
-71,
-24,
-50,
-30,
55,
31,
11,
21,
41,
-33,
-2,
2,
27,
7,
-22,
-48,
-10,
13,
-2,
0,
-21,
-10,
47,
21,
33,
-12,
27,
-14,
-16,
57,
11,
-54,
-46,
2,
-14,
-40,
-40,
35,
31,
19,
-16,
-13,
11,
10,
23,
-57,
-25,
-30,
15,
5,
5,
3,
13,
-11,
-36,
-2,
-25,
37,
64,
69,
11,
61,
-25,
-23,
-29,
-49,
34,
-6,
-36,
35,
41,
-47,
47,
55,
-29,
0,
-56,
-6,
39,
-3,
-6,
16,
40,
37,
-18,
22,
-9,
-23,
34,
-14,
27,
22,
29,
-28,
-3,
13,
29,
27,
-28,
-19,
-3,
65,
28,
3,
-10,
-8,
-25,
-6,
9,
2,
2,
18,
90,
30,
-2,
-6,
-67,
-6,
25,
-13,
-12,
-20,
14,
5,
-18,
-42,
-9,
60,
17,
38,
26,
-22,
-10,
-6,
-26,
-7,
40,
-67,
14,
-19,
-39,
38,
-25,
-14,
-34,
-5,
5,
23,
-27,
7,
5,
-15,
-13,
-7,
-31,
10,
-29,
-1,
40,
29,
-46,
9,
-41,
12,
-20,
-41,
-11,
5,
-27,
40,
-2,
-47,
-46,
-17,
-6,
34,
-1,
-14,
-58,
0,
-77,
3,
-12,
7,
-10,
-33,
-34,
-9,
33,
-3,
20,
16,
1,
83,
-50,
6,
-78,
-5,
-29,
19,
24,
-12,
-24,
-26,
20,
-4,
12,
23,
39,
-14,
-13,
28,
-12,
9,
22,
1,
11,
-11,
-24,
8,
59,
13,
61,
9,
-26,
-12,
16,
26,
-22,
12,
22,
39,
17,
-66,
33,
-13,
-12,
-4,
-51,
-51,
37,
25,
-13,
41,
-66,
-6,
-24,
0,
14,
-9,
31,
-44,
27,
-50,
-18,
14,
-8,
47,
-1,
20,
-45,
-64,
31,
-29,
-14,
55,
-16,
-4,
-26,
-3,
-5,
17,
35,
-7,
-20,
-18,
43,
-5,
-9,
-28,
-20,
27,
-39,
-9,
11,
1,
0,
47,
26,
51,
15,
14,
-4,
11,
-54,
-23,
7,
-23,
-13,
-13,
-20,
14,
29,
14,
74,
18,
18,
-28,
-36,
-3,
-27,
22,
4,
14,
0,
21,
53,
9,
-15,
66,
-10,
56,
38,
12,
-94,
-10,
12,
19,
45,
-12,
3,
-70,
-55,
-18,
10,
5,
28,
2,
13,
5,
9,
3,
-43,
-14,
-8,
38,
9,
0,
1,
11,
53,
-2,
7,
-6,
-37,
-58,
-72,
48,
-36,
19,
-35,
34,
9,
-6,
-15,
13,
43,
14,
-59,
-30,
51,
14,
-16,
2,
-29,
-13,
24,
13,
4,
17,
54,
11,
-25,
-15,
-43,
62,
-5,
19,
8,
-18,
39,
0,
-7,
29,
-7,
13,
61,
25,
25,
-21,
-13,
19,
37,
-23,
-33,
-62,
-16,
52,
-3,
-2,
-9
] |
Butzel, J.
The Staebler-Kempf Oil Company, a Michigan corporation, is a wholesale and retail dealer in “Marathon” gasoline and other branded petroleum products in the city of Ann Arbor, Michigan. It supplies 7 retail' outlets owned and conducted by others and also 1 that it runs and owns. The oil company and the retailers operate under what is called the “customary dealer’s contract,” which contains, among other provisions, an agreement by the retailer to sell only the oil company’s gasoline, and at the same price charged by the other retailers supplied by the oil company. The price is set at the oil company’s own retail station and is varied to meet the lowest price charged by the oil company’s competitors. The oil company is the smallest wholesale distributor of gasoline in Ann Arbor.
In 1946, the oil company conveyed property in Ann Arbor, which it had owned for over 20 years, to the Martin Sales & Service Company. The deed contained the following covenant:
“It is a condition of this conveyance that the party of the second part (vendee) agrees that should he construct and operate a gasoline filling station or service motor vehicles with gasoline, oil and other lubricants on the premises above described, or deal in such commodities thereon, during a period of 10 years beginning on August 19, 1946, said party of the second part will purchase .from Staebler-Kempf Oil Company, a Michigan corporation, of Ann Arbor, Michigan, all gasoline, oil and other lubricants sold on the premises, and said Staebler-Kempf Oil Company agrees that it will furnish the reasonable requirements of the party of the second part for such products, unless prevented by causes beyond its control, at such prices and on such terms as are customarily furnished to other dealers in like products in the Ann Arbor, Michigan, area. (Emphasis added.) The party of the second part agrees that this provision shall be incorporated in any deed executed by the party of the second part, and the covenants herein made shall run with the land for such term of 10 years.”
In 1947, Martin Sales & Service conveyed the premises by a deed containing the above-quoted covenant to Mac’s Auto Mart, Inc., a Michigan corporation, defendant herein.
In the early, part of 1949, the defendant’s representative, Balfe MacDonald, asked the oil company to install some hew equipment at the service station. The record is not clear as to whether the service station was being operated by the defendant prior to 1949. After discussions, it was finally agreed that the oil company would loan to the defendant equipment consisting of gasoline pumps, storage tanks, signs and some other articles, worth about $1,500 at cost, and that the defendant would sign the customary dealer’s contract. The oil company installed the equipment. It also delivered about 1,600 gallons of gasoline to the defendant, for which the latter paid cash, the usual terms of payment by the plaintiff’s retailers. MacDonald then refused to sign the tendered contract, objecting to the uniform price clause contained therein. He wa.s asked why he had not objected earlier before the oil company had installed the equipment, and he replied that he had not because he knew very well what the oil company’s reaction would be. The defendant then started to sell gasoline at a price lower than charged at plaintiff’s other outlets. The oil company filed a bill for an injunction to restrain the defendant from underselling the other retail stations. The defendant has appealed from the decree granting the injunctive relief.
The defendant’s first contention is that the phrase in the covenant “at such prices and on such terms as are customarily furnished to other dealers in like products in the Ann Arbor, Michigan, area,” refers only to prices and “terms of payment,” and because of this limited meaning it is not legally obligated to sell the oil company’s gasoline at the uniform price charged by the other retailers of the oil company. It contends that when the parties negotiated for the equipment, they did not intend toxbe bound by any oral understanding, and since the written contract has not been signed, the plaintiff can only recover the value of the equipment installed. The defendant offers to pay for this equipment and will abide by the terms of the covenant to the extent that it will purchase all gasoline from the plaintiff, but is unwilling to sell at the uniform price.
The plaintiff insists that the defendant is bound by the contract whether it has been signed or not because the phrase in the covenant in the deed refers to “terms of performance,” which include a uniform price clause.
The word “terms” has been defined by our Court. In City of Detroit v. Detroit United Railway, 173 Mich 314, 322, we said:
“ ‘Terms’ and ‘conditions’ often used synonymously, when relating to legal rights, are technical words of well-defined meaning. As used in contracts generally, they mean the propositions, limitations, and exactions which comprise in whole or in part the agreement and govern the contracting parties, defining what they obligate themselves to do or not to do.”
It is true that the word “terms” in the phrase “prices and terms” often refers only to the time of payment, when the phrase is taken by itself. However, the phrase cannot be interpreted in the abstract. The meaning of any particular part of an instrument can only be found by an examination of the whole. The clause in question is the only clause in the covenant relating to the oil company’s uniform dealings with its retailers. The 2 most important aspects of these dealings are the prices to be charged, and the terms upon which the gasoline will be delivered to the retailers. It is not strange that they should be named together, and their mere proximity is not a sufficient reason to alter the usual definition of the word “terms.”
The defendant is legally obligated by the covenant in the deed to sell the oil company’s gasoline at the same price as the other retailers, since that is the requirement imposed by the oil company. It is immaterial that the tendered contract is unsigned.
The defendant contends that the agreement between the parties is void and unenforceable under the provisions of the anti-trust act of 1899 (CL 1948, § 445.701 [Stat Ann § 28.31]), and under our decisions in Hunt v. Riverside Co-Operative Club, 140 Mich 538 (112 Am St Rep 420); W. H. Hill Co. v. Gray & Worcester, 163 Mich 12 (30 LRA NS 327); Mulliken v. Naph-Sol Refining Co., 302 Mich 410. It is urged that the contract is an attempt to stifle competition among the retailers supplied by the plaintiff, and is a horizontal price-fixing agreement to protect the plaintiff in the operation of its own retail outlet, and that these are unlawful purposes under the statute.
The statute, if read literally, would seem to support the defendant’s contentions. However, the statute does not define restraint of trade, and the definition has been judicially supplied. It has long-been held that a contract would not be construed as in restraint of trade unless the restraint was unrea sonable. Standard Oil Co. of New Jersey v. United States, 221 US 1 (31 S Ct 502, 55 L ed 619, Ann Cas 1912D 734); People, ex rel. Attorney General, v. Detroit Asphalt Paving Co., 244 Mich 119; see, also, 41 CJ, p 109.
Chief Justice Christiancy provided the guide by which reasonableness could be determined in Hubbard v. Miller, 27 Mich 15, 19 (15 Am Rep 153), where he said:
“If, considered with reference to the situation, business and objects of the parties, and in the light of all the surrounding circumstances with reference to which the contract was made, the restraint contracted for appears to have been fór a just and honest purpose, for the protection of the legitimate interests of the party in whose favor it is imposed, reasonable as between them and not specially injurious to the public, the restraint will be held valid.”
Does the covenant and tendered contract meet this test? The trial judge, in a well-written opinion below, said:
“It was not shown by any testimony that the purpose of plaintiff in incorporating the covenant in the deed was to control prices of gasoline or petroleum products in Ann Arbor and vicinity and stifle competition. On the contrary much weight must be attached to the fact that plaintiff owned this land for upwards of 20 years, during which period it had controlled the station and this outlet for plaintiff’s products. Certainly plaintiff properly could reasonably restrict the use of the land in the hands of a purchaser,.—as the covenant does for a period of 10 years. Had plaintiff retained ownership of the land there can be no question that plaintiff could have seen to it that only its products were sold on the premises and at plaintiff’s prices. * * *
“This then is not primarily or solely a price-fixing agreement but rather an agreement pursuant to a covenant running with land which plaintiff sold and which plaintiff would not have sold without the covenant.”
Quinlivan v. Brown Oil Co., 96 Mont 147 (29 P2d 374), is factually similar to the instant case. In that case the court was asked to determine the validity of a covenant in a lease to a gasoline station. The covenant required the lessee to sell the lessor’s gasoline at the same price charged at the lessor’s other retail outlets. The Montana anti-trust act is similar to ours. The court found the covenant valid. It stressed the absence of intent to destroy the lessee’s business, and balanced the small gain to the public against the lessor’s honest business purpose.
Plaintiff was in the weakest competitive position of all the Ann Arbor wholesalers. An intra-company price war might well have forced it out of business and would not have appreciably affected the price of gasoline in that highly competitive industry.
The cases cited by the appellant are not in point. Hunt v. Riverside Co-Operative Club, supra, and Mulliken v. Naph-Sol Refining Co., supra, involved agreements which were patently injurious to the interests of the public. W. H. Hill Co. v. Gray & Worcester, supra, was decided prior to our Court’s interpretation of the act of 1899 in People, ex rel. Attorney General, v. Detroit Asphalt Paving Co., supra, and does not represent the current judicial interpretation of the statute, nor do the facts present as fair and compelling a business purpose as is present in the instant case.
In view of our decision there is no need to discuss the effect of the Michigan fair trade act, CL 1948, § 445.151 (Stat Ann 1949 Cum Supp § 19.321) on this covenant.
The decree of the trial court is affirmed, with costs to the appellee.
Reid, C. J., and Boyles, North, Dethmers, Carr, Bushnell, and Shárpe, JJ., concurred. | [
-17,
70,
25,
3,
1,
31,
-11,
13,
-10,
-11,
-2,
-37,
-35,
-7,
37,
39,
56,
35,
-2,
-1,
12,
-77,
-2,
29,
-3,
8,
35,
-84,
3,
27,
-3,
39,
-5,
-2,
35,
64,
-47,
-7,
2,
-26,
-5,
2,
29,
26,
33,
-23,
27,
-34,
66,
-17,
12,
16,
-2,
22,
-28,
-64,
-23,
40,
24,
78,
10,
-42,
39,
-28,
43,
-22,
13,
70,
62,
9,
-22,
-30,
-33,
20,
3,
43,
48,
62,
-34,
-5,
38,
-26,
65,
-1,
-48,
109,
-47,
-5,
-25,
-55,
-42,
-69,
18,
-10,
24,
-5,
-2,
40,
3,
-2,
-10,
-13,
-20,
23,
-39,
30,
2,
-10,
8,
-29,
-45,
4,
-18,
-73,
29,
-30,
-20,
18,
-4,
20,
-39,
-1,
53,
87,
32,
24,
-6,
-43,
-61,
-14,
-34,
-37,
0,
11,
53,
47,
58,
15,
-24,
52,
-38,
50,
-14,
23,
-80,
14,
14,
-3,
1,
-25,
-45,
-14,
9,
13,
-86,
-3,
-4,
-6,
53,
-98,
-6,
-45,
-6,
-8,
-95,
3,
2,
11,
-69,
53,
19,
-47,
-3,
11,
24,
-50,
-3,
18,
-27,
-27,
5,
-25,
4,
32,
30,
-7,
-62,
27,
-6,
-9,
15,
-12,
5,
-2,
-48,
-1,
-55,
56,
20,
41,
10,
-39,
17,
-40,
27,
19,
-39,
88,
-26,
-26,
16,
26,
20,
2,
-14,
31,
-46,
-41,
40,
-89,
8,
-85,
3,
37,
13,
-26,
68,
-16,
-9,
-36,
0,
-16,
4,
-1,
-54,
28,
16,
-17,
61,
18,
16,
-71,
-17,
9,
-10,
-20,
12,
-30,
34,
54,
-17,
-13,
-52,
-4,
-26,
-12,
-55,
-29,
23,
51,
26,
18,
-31,
-8,
-27,
21,
5,
-40,
-16,
6,
60,
-8,
12,
6,
-43,
-35,
-20,
-39,
19,
33,
30,
11,
-34,
-31,
-18,
47,
10,
51,
-78,
-46,
30,
89,
4,
-46,
7,
-3,
-37,
-15,
19,
-8,
-52,
15,
-37,
-48,
42,
-32,
-31,
-5,
33,
22,
-9,
-41,
-7,
-37,
-35,
-54,
85,
37,
69,
-19,
21,
25,
-4,
70,
-5,
39,
10,
-19,
10,
-4,
-19,
-49,
12,
-44,
-76,
-17,
-8,
19,
51,
23,
-2,
-32,
53,
46,
21,
-19,
86,
23,
-56,
-32,
-29,
-36,
3,
18,
-29,
39,
29,
43,
-42,
-6,
-16,
-29,
18,
3,
-13,
-13,
-12,
-28,
-8,
71,
23,
-11,
-61,
43,
19,
-44,
-28,
-70,
-38,
24,
46,
-18,
39,
-18,
36,
16,
-10,
-15,
-52,
-10,
-33,
32,
-5,
20,
39,
-83,
30,
-16,
-59,
-9,
14,
68,
-13,
-41,
-2,
-34,
61,
52,
28,
-15,
11,
-47,
-53,
-14,
-64,
30,
24,
-7,
-44,
-42,
28,
6,
-68,
-42,
56,
-71,
-13,
7,
-31,
56,
-7,
46,
-4,
53,
39,
-15,
-56,
17,
-11,
34,
-25,
-18,
-26,
1,
0,
28,
-24,
23,
3,
-18,
39,
6,
-27,
18,
12,
74,
44,
7,
-3,
11,
-31,
-24,
-8,
10,
-22,
0,
30,
2,
-1,
42,
-27,
40,
40,
4,
5,
-50,
-17,
-41,
-10,
30,
-18,
3,
-14,
-32,
-21,
-93,
-20,
37,
13,
16,
33,
-28,
-11,
-11,
-11,
-35,
-13,
40,
57,
-19,
25,
-71,
-15,
20,
10,
37,
43,
-23,
-15,
-45,
16,
-64,
23,
-14,
4,
22,
-36,
6,
-8,
40,
-26,
1,
-14,
8,
-1,
-51,
40,
57,
30,
-14,
-10,
-52,
-3,
11,
4,
-98,
26,
5,
-23,
-25,
11,
-23,
-18,
-55,
15,
22,
25,
-14,
-30,
-41,
-24,
-13,
12,
-1,
39,
54,
-51,
9,
0,
2,
-42,
77,
15,
-38,
61,
13,
0,
-9,
29,
-23,
-69,
49,
42,
21,
48,
2,
-9,
-37,
-30,
2,
-22,
-14,
79,
-24,
-34,
81,
-33,
19,
-10,
14,
-3,
-20,
-11,
39,
51,
17,
123,
-14,
23,
-5,
-26,
-5,
-20,
16,
35,
-47,
-9,
9,
11,
-5,
-40,
0,
0,
-20,
-1,
14,
13,
-27,
-8,
-18,
-8,
9,
42,
-35,
20,
46,
19,
8,
-21,
39,
-41,
-54,
-22,
3,
-1,
23,
62,
1,
-76,
-1,
0,
-77,
-37,
-7,
45,
-5,
16,
52,
39,
-2,
-4,
30,
8,
14,
-4,
35,
-17,
-49,
-8,
16,
4,
-15,
-18,
-21,
7,
-54,
17,
0,
9,
2,
-19,
36,
-6,
-15,
42,
36,
46,
27,
5,
36,
4,
43,
20,
11,
9,
-24,
63,
14,
33,
-71,
34,
-8,
-24,
-14,
0,
-5,
-8,
-1,
-5,
-61,
13,
38,
40,
58,
-55,
50,
-24,
-49,
-6,
20,
10,
-56,
23,
-7,
13,
60,
-26,
9,
-22,
-42,
-37,
-6,
-23,
-32,
51,
4,
-8,
-9,
-9,
-4,
-36,
2,
-10,
-40,
-18,
67,
-19,
-57,
-64,
-58,
37,
14,
-3,
23,
-26,
2,
-55,
18,
32,
-21,
-39,
13,
45,
24,
80,
-11,
4,
28,
-44,
-22,
-16,
31,
34,
22,
10,
-5,
13,
-18,
-23,
-33,
18,
19,
-64,
-9,
-13,
-53,
12,
-43,
42,
10,
13,
-67,
39,
-21,
48,
21,
19,
54,
43,
-29,
-6,
15,
27,
-58,
-35,
26,
-4,
54,
51,
-68,
-59,
-10,
-38,
47,
20,
-33,
10,
0,
20,
-19,
-10,
13,
57,
-63,
78,
56,
-19,
28,
-9,
23,
-65,
-33,
-42,
-9,
-31,
-35,
-33,
-17,
-38,
4,
65,
2,
10,
27,
-59,
24,
27,
9,
-3,
-49,
-5,
-34,
-15,
64,
-19,
-27,
-22,
42,
2,
10,
-1,
-31,
-39,
1,
40,
-3,
-51,
-14,
-7,
80,
21,
11,
-23,
51,
19,
-8,
0,
39,
-36,
6,
-15,
-32,
23,
-76,
51,
28,
-20,
-5,
-22,
27,
-19,
-9,
4,
-9,
21,
30,
27,
6,
0,
87,
7,
-69,
-22,
-25,
-39,
-9,
42,
1,
-5,
-32,
15,
2,
8,
-18,
2,
81,
-56,
-8,
-60,
-4,
-2,
-16,
-17,
55,
-15,
5,
20,
54,
-9,
-31,
17,
-21,
-88,
30,
-28,
26,
-32,
10,
57,
45,
-7,
10,
15,
19,
66,
-30,
-24,
-2,
10,
-30,
-2,
30,
-3,
7,
-2,
-24,
11,
-29,
-58,
48,
-47,
50,
-28,
42,
-34,
-12,
-2,
15,
6,
-50,
67,
-3,
7,
0,
12,
-70,
-1,
64,
-6,
-2,
-17,
0,
19,
49,
13,
-5,
-32,
-13,
3,
11,
-34,
-13,
-36,
49,
51,
24,
-57,
41,
-7,
7,
18,
-15,
30,
19,
13,
27,
29,
69,
47,
-75,
28,
-45,
-65,
-23,
-4,
27,
-19,
-94,
42,
53,
-40,
-36,
-11,
-42,
-12,
34,
0,
59,
23,
10,
-37,
2,
-25,
31
] |
Sharpe, J.
This case involves an appeal from the circuit court of Wayne county denying plaintiff’s motion to substitute a party plaintiff in an action brought against defendant.
The facts are not in dispute. Paul W. Howard, decedent and a resident of the State of Illinois, was involved in an accident in the State of Indiana with defendant Harry Pulver, a citizen and resident of Wayne county, Michigan. Paul W. Howard died from injuries received in the accident.
Subsequently, Milton B. Howard was appointed administrator of the estate of Paul W. Howard, deceased, by a probate court of Cook county, Illinois. On December 18, 1947, plaintiff as administrator brought an action in the circuit court of Wayne county against Harry Pulver who filed his appearance and answer to plaintiff’s declaration. The matter came to the attention of the court on the pretrial docket at which time counsel for defendant raised the objection that the action was brought by and in the name of a foreign administrator. Subsequently, an ancillary administrator was appointed and plaintiff’s motion to substitute the ancillary administrator as party plaintiff was granted.
On November 28, 1949, defendant filed a motion for a rehearing on the court’s order denying defendant’s motion to dismiss and granting plaintiff’s motion to substitute. On January 6, 1950, the court granted defendant’s motion to dismiss. Plaintiff appeals.
The first question that arises out of the bringing of the instant action is: May an administrator, appointed by an Illinois court, prosecute an action in Michigan for the wrongful death of. his decedent under an Indiana statute (2 Burns’ Ind Stat [1946 Replacement], § 2-404) which provides that in actions for death, the personal representative of deceased may bring action against one causing the death of his deceased by wrongful act or omission, if the decedent living might have brought an action ? Under Indiana law the action must be brought within 2 years after the death. In the case at bar Paul W. Howard died December 29, 1946. The present action was instituted December 18, 1947, and on November 15, 1949, the order of substitution was entered.
Since the cause of action arose as the result of injuries and death of plaintiff’s decedent in the State of Indiana, the liability for the negligence or wrong is governed by the laws of the State of Indiana. See Kaiser v. North, 292 Mich 49, and Summar v. Besser Manufacturing Co., 310 Mich 347.
Defendant urges that an administrator appointed in Illinois has no authority to bring an action in Michigan and relies upon Jones v. Turner, 249 Mich 403. We there said:
“Plaintiff was appointed administrator of his father’s estate by a probate court in Illinois. No ancillary administration of that estate was had in Michigan.
“The assets of a deceased person located in this State constitute a trust fund for the payment of the creditors of the deceased therein, regardless of the domicile of deceased. In re Colburn’s Estate, 153 Mich 206 (126 Am St Rep 479, 18 LRA NS 149); In re Stevens’ Estate, 171 Mich 486.
“The appointment of plaintiff as administrator by the court of Illinois has no extraterritorial force. As a foreign administrator he has no control over or interest in the real or personal estate of the intestate in this State. Thayer v. Lane, Walk Ch (Mich) 200.
“His grant of administration by the court of Illinois is strictly confined in authority and operation to the limits of the territory of the State granting it. It cannot confer, as a matter of right, any authority to collect the assets of the deceased in any other State. * * *
“No Michigan statute gives a foreign executor or administrator the right to sue in the courts of this State in a case like the present. The trial court was without jurisdiction to render a valid judgment in favor of plaintiff as administrator. Being without jurisdiction, the judgment of the trial court is void.”
Plaintiff urges that under the death act of Indiana (2 Burns’ Ind Stat [1946 Replacement], § 2-404), it is provided that such action shall be brought by and in the name of the personal representative of the deceased person for the' benefit of the persons designated by the statute; and that while the statute names the personal representative of the deceased, he does not represent the deceased as to his general estate, but only as to his relationship with the persons named as beneficiaries by the statute, and, as such, is only the designee of the-beneficiaries named in the statute and acts only as a trustee for their benefit.
In view of the fact that the liability for the alleged wrongful act is governed by Indiana law, it becomes necessary to examine its death act. The pertinent part of the act reads as follows:
“When the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action therefore against the latter, if the former might have maintained an action had he or she (as the case may be) lived, against the latter for an injury for the same act or omission. When the death of one is caused by the wrongful act or omission of another, the action shall be commenced by the personal representative of the decedent within 2 years, and the damages can not exceed $10,000, and subject to the provisions of this act, shall inure to the exclusive benefit of the widow or widower, as the case may be, and to the dependent children, if any, or dependent next of lrin, to be distributed in the same manner as the personal property of the deceased.”
The death act creates a new right of action not known to the common law, applying only when death results from injuries and the right of action vests in the personal representative of the deceased.
The issue involved is one of first impression in this State, but has been passed upon in other jurisdictions. In Wiener v. Specific Pharmaceuticals, Inc., 298 NY 346 (83 NE2d 673), Patricia A. Wiener, an infant, died in Detroit, Michigan. Her father, R. J. Wiener, was appointed administrator by a probate court of Michigan and brought an action in a New York court to recover damages for the infant’s wrongful death allegedly occasioned by one of defendant’s products which had been administered to the child. Defendant made a motion to dismiss the cause of action on the ground that plaintiff lacked standing to sue in New York courts. The New York court of appeals affirmed the trial court’s denial of the motion to dismiss and said:
“It is settled that as a general rule a foreign administrator may not sue in the courts of this State without first obtaining ancillary letters. * # *
“We come, then, to an important question—hitherto expresslv left open by this court, Baldwin v. Powell, 294 NY 130, at page 134 (61 NE2d 412); Wikoff v. Hirschel, 258 NY 28, at pages 31, 32 (179 NE 249)—as to whether a foreign administrator, suing as special statutory trustee to recover damages for wrongful death, has the legal capacity to maintain such a suit in our courts.
“It has been repeatedly observed that the reason for insisting that a foreign administrator obtain ancillary letters before suing in another State is to assure that the decedent’s domestic creditors shall have their claims paid out of any fund recovered for the benefit of the debtor’s estate. * * *
“The rule barring foreign administrators from our courts is just and reasonable only if applied in cases, first, where there are domestic creditors, and second, where the foreign administrator sues to recover a fund in which such creditors may share. Obviously, no prejudice threatens local creditors of the decedent if the wrongful death statute makes no provision for recovery on behalf of the general estate and, in fact, bars creditors’ claims against the proceeds. Suing under such a statute, plaintiff acts, not as an officer of the foreign court appointed by it as alter ego for the estate, but as a trustee for the designated beneficiaries, the actual and real parties in interest. In such a case, the amount recovered truly constitutes a special fund for their exclusive benefit, and, since it is not subject to the claims of others, no danger exists that failure to require local qualification may harm or prejudice domestic creditors. With the primary and, perhaps, only reason for the rule thus removed, the rule itself has no sensible application and should not be invoked in this class of ease.
“For that reason, we conclude, as have the courts of a number of other jurisdictions, that a foreign administrator, suing as statutory trustee, has standing to maintain a wrongful death action in this State upon the strength of his original letters.”
In Pearson v. Norfolk & W. Ry. Co., 286 F 429, Ambrose Pearson was killed in West Virginia. A. C. Pearson was appointed administrator of the estate of Ambrose Pearson in North Carolina. He brought an action in Virginia for the wrongful death of decedent. Defendant raised the issue of the right of a foreign administrator to maintain the action. In affirming such right the court said:
“In this State there is no statute giving foreign representatives a right to sue, and the rule that a foreign representative may not sue in the courts of this State to recover assets of his decedent’s estate for administration remains in full force. Dickinson v. M’Craw, 4 Rand (25 Va) 158, 160; Andrews v. Avory, 14 Grat (55 Va) 229, 239 (73 Am Dec 355); Fugate v. Moore, 86 Va 1045, 1047 (11 SE 1063, 19 Am St Rep 926). However, I can think of no reason why this rule should apply to the case at bar. The only even passably good reason for the rule is the protection of possible local creditors of a decedent. * # *
“The reason that the rule in question cannot possibly apply here is that, by the express terms of the West Virginia wrongful death statute, no creditor of the decedent as such has the slightest interest in or right to the recovery sought by the plaintiff at bar. The foreign administrator here sues to recover a fund which is not ,to be administered, but is merely to be distributed. When the reason for a rule fails, the rule ceases to apply. And it follows that there is no reason to be found in the policy of the law of Virginia why the plaintiff here may not maintain this action. * * *
“It is argued that ‘foreign letters have no extraterritorial effect.’ This, with deference, seems to me to be an incomplete, and therefore a misleading, statement of a sound rule. The meaning of the rule is merely that the local courts will not give such effect to a foreign grant of letters as to permit local assets of a decedent to be administered according to a foreign law. Permitting a foreign representative to have a recovery which is not to be administered at all is not giving extraterritorial effect to the plaintiff’s letters within the meaning of the rule in question. A rule designed only to prevent foreign administration of local assets of a decedent cannot properly be applied to assets of living people which are not to be administered at all.”
See, also, Wallan v. Rankin, 173 F2d 488; Knight v. Moline, East Moline & Watertown Ry. Co., 160 Iowa 160 (140 NW 839); 33 Mich Law Review, p 565; 48 Mich Law Review, p 520.
The courts of Indiana have had occasion to construe its death act. In determining the nature of the cause of action, the court in Shipley v. Daly, 106 Ind App 443 (20 NE2d 653), said:
“The right of action given by this statute is not a continuation of any action existing in favor of the deceased person prior to his death, but is a new right of action which exists only by virtue of the statute creating it, and accrues on the death of the decedent. It must be prosecuted by the personal representative of the deceased, and since 1933, when the statute was amended to so provide, such representative may prosecute such an action, and, if the facts warrant it, recover damages which will inure to the benefit of one or the other of 3 classes of persons. * # *
“As heretofore stated, the right of action accrues upon the death of any person whose death results from injuries suffered by reason of the wrongful act or omission of another. * * * Statutes of this character are in derogation of the common law, and may not properly be extended beyond the legitimate meaning of the words employed in them. In the instant case, when the right of action accrued, the widow was the surviving person named by our statute as the beneficiary of the right granted. The right of action existed for her benefit alone, and there was no right of action for the benefit of any other person or persons. We find nothing in the statute which can reasonably be construed as granting to any other person any right of action upon the death of the widow. * * *
“There is but one cause of action created by the statute, and, as heretofore stated, it accrues upon the death of the injured party, and inures for the benefit of those named in the statute in the order therein stated, as of the date of death, and not otherwise. If there be no survivors of the first class, the right is for the benefit of those of the second class, if any, and if none, then for the benefit of those of the third class, but the right when it once accrues does not pass upon the death of those of one class of persons to the next class, since the right given is a statutory one, and the statute does not so provide.”
In Fink v. Peden, 214 Ind 584 (17 NE2d 95), the supreme court of Indiana held that under its death act the funds obtained in a settlement of a claim against the Pennsylvania Railroad Company on account of the death of Ralph Pink, husband of administratrix and father of 5 minor children, were no part of decedent’s estate under Burns’ Ind Stát 1933, § 2-404, Baldwin’s Ind Stat 1934, § 51. The court said: “Ralph Pink’s estate had no interest whatever in the sum paid by the railroad company to his widow and the minor children.”
See, also, Tri-State Loan & Trust Co. v. Lake-Shore & M. S. R. Co., 76 Ind App 141 (131 NE 523).
In Chicago, I. & L. R. Co. v. Hemstock, 102 Ind App 654 (4 NE2d 677), the court had occasion to rule upon who may bring an action under its death act. The court there said:
“It is to be noted that it is only a personal representative who may institute and maintain the action provided for by the terms of the foregoing statute. There can be no doubt that an administrator, and executor, or an administrator de bonis non, who was duly appointed and qualified, would be such ‘personal representative.’ * * *
“That a right of action for damages sustained on account of the death of a deceased person caused by the negligent act of another is not an asset of the estate of any such deceased person, must be conceded as settled in this jurisdiction.”
See, also, Pettibone v. Moore, 223 Ind 232 (59 NE 2d 114).
It must be conceded that bad decedent lived be could bave availed bimself of tbe Michigan courts to maintain bis action for damages, but because of bis injury and death in Indiana tbe law governing the recovery of damages is to be determined by tbe death act of Indiana.
Under tbe death act of Indiana tbe action can only be brought by tbe personal representative for tbe recovery of a trust fund for tbe exclusive benefit of certain specified beneficiaries named in the statute. Under this act tbe funds recovered are not for the benefit of decedent’s estate and are not subject to any claims of creditors of deceased. Lese v. St. Joseph Valley Bank, 81 Ind App 517 (142 NE 733). It also appears that under the act tbe beneficiaries are tbe real parties in interest.
In our opinion, in bringing of an action under tbe death act, plaintiff as administrator of decedent’s estate did not act as an officer of tbe Illinois court, but as a trustee for certain statutory beneficiaries. Tbe ease of Jones v. Turner, supra, relied upon by defendant has no application to causes of action brought under the death act. Under CL 1948, § 612.2 (Stat Ann § 27.654), every action shall be prosecuted in tbe name of tbe real party in interest, but an executor, administrator, trustee of an express trust, or a party expressly authorized by statute may sue in bis own name without joining with him tbe party for whose benefit tbe action is brought. In tbe case at bar plaintiff brought tbe action as the personal representative as authorized by tbe death act of Indiana. Moreover, tbe action was commenced within tbe time allotted by tbe statute. Tbe ancillary administrator was duly appointed and a petition filed by him to be allowed to be substituted as party plaintiff. In tbe first instance an order was entered granting plaintiff’s petition to be substituted as party plaintiff and later it was revoked. In our opinion, the court acquired jurisdiction of the cause of action and the parties when the action was first commenced. The granting of an order substituting the ancillary administrator as party plaintiff was a valid exercise of the power of the court.
The trial court was in error in holding that the cause of action is a property right belonging to the estate of the deceased and granting defendant’s motion to dismiss the cause of action. For the reasons heretofore given the order dismissing the cause of action is reversed and the cause remanded for further proceedings. Plaintiff may recover costs.
Reid, C. J., and Boyles, North, Dethmers, Btjtzel, Carr, and Bushnell, JJ., concurred. | [
-31,
-6,
-17,
-34,
4,
27,
15,
4,
-19,
2,
-7,
-17,
13,
17,
-10,
-8,
38,
49,
24,
-18,
16,
18,
-10,
-46,
13,
-22,
-4,
11,
-35,
-42,
-15,
-8,
4,
10,
-37,
20,
29,
-28,
-30,
5,
-22,
3,
57,
-34,
-17,
6,
13,
0,
45,
-23,
-13,
2,
36,
9,
-26,
-36,
8,
-26,
0,
-26,
-31,
-9,
6,
-53,
30,
11,
30,
-3,
-15,
-27,
-38,
0,
27,
65,
22,
12,
-40,
-9,
43,
8,
39,
49,
-2,
-24,
-53,
-32,
18,
0,
-27,
28,
8,
23,
-29,
-33,
-32,
3,
39,
28,
21,
-29,
18,
-17,
7,
-2,
18,
28,
22,
19,
-52,
-9,
60,
14,
3,
-2,
37,
-19,
30,
-53,
36,
52,
31,
-24,
24,
-16,
-22,
-3,
-2,
16,
43,
13,
11,
66,
39,
-29,
15,
30,
-9,
-51,
19,
-14,
6,
-24,
-8,
-22,
39,
18,
7,
-7,
57,
-53,
-33,
67,
-36,
5,
26,
15,
102,
-24,
21,
26,
37,
-16,
-13,
-16,
-12,
-66,
-44,
9,
-24,
-13,
2,
17,
13,
2,
-37,
46,
33,
12,
-48,
92,
-23,
11,
18,
0,
29,
-34,
-40,
-8,
86,
-11,
37,
-62,
38,
44,
20,
40,
44,
25,
8,
0,
39,
-28,
-4,
-45,
14,
7,
-64,
13,
8,
-24,
28,
-28,
-9,
-19,
-1,
-2,
17,
-37,
26,
45,
5,
45,
55,
-8,
-25,
-56,
-7,
-56,
5,
-23,
22,
-72,
-27,
58,
-9,
2,
-8,
-11,
-9,
-3,
57,
42,
23,
59,
-32,
-7,
21,
62,
-31,
5,
12,
-5,
-2,
-39,
25,
25,
-2,
8,
-6,
-7,
-16,
37,
-32,
16,
-4,
-11,
2,
-17,
-5,
-14,
-22,
-19,
60,
-11,
0,
-30,
5,
16,
45,
-36,
16,
-4,
29,
-35,
-15,
45,
18,
-24,
-51,
16,
-25,
7,
28,
-24,
-5,
88,
29,
-15,
-8,
-5,
-28,
89,
22,
0,
12,
-19,
-7,
-34,
7,
12,
-52,
27,
-10,
8,
20,
17,
4,
2,
13,
-46,
-6,
24,
-13,
24,
-24,
-32,
20,
51,
27,
52,
13,
-34,
36,
0,
2,
-55,
43,
68,
-37,
9,
19,
-6,
17,
24,
1,
-7,
53,
10,
62,
-24,
-50,
-38,
-7,
18,
-4,
-34,
-14,
-16,
-16,
29,
-16,
-12,
-45,
-4,
-5,
-14,
-56,
18,
7,
24,
-2,
5,
-24,
-48,
-18,
53,
20,
19,
-3,
9,
-2,
-7,
-22,
-19,
-31,
-35,
-48,
53,
-23,
30,
-54,
-13,
19,
-21,
-39,
50,
-2,
6,
-28,
35,
16,
21,
36,
-42,
43,
7,
-76,
0,
0,
57,
-22,
-42,
20,
10,
89,
28,
12,
-20,
55,
69,
56,
72,
-25,
-51,
1,
5,
-4,
7,
38,
-57,
17,
0,
25,
39,
65,
39,
-53,
1,
54,
4,
-29,
-30,
11,
-19,
-10,
23,
-43,
16,
-12,
-33,
11,
8,
57,
15,
25,
14,
7,
-3,
-28,
-6,
0,
-77,
17,
-4,
1,
-38,
-37,
37,
45,
1,
-14,
-13,
-74,
7,
-23,
-50,
-1,
9,
61,
-27,
-1,
-3,
-21,
-37,
-2,
-42,
0,
-25,
15,
-45,
-20,
-37,
-27,
-37,
5,
-8,
-45,
-9,
-37,
1,
-18,
20,
1,
15,
-32,
-4,
0,
-12,
16,
-2,
-22,
-30,
-33,
48,
12,
30,
75,
16,
25,
-10,
-3,
-11,
-36,
51,
-4,
-46,
2,
-11,
-27,
-85,
61,
-77,
-14,
-62,
-22,
19,
-34,
-1,
-66,
-2,
26,
32,
-40,
-19,
-27,
-52,
13,
6,
32,
-26,
-5,
-51,
-3,
-21,
-33,
-5,
35,
3,
1,
-32,
7,
-35,
31,
44,
-3,
-37,
-57,
-27,
66,
65,
-9,
-13,
46,
-28,
26,
12,
53,
6,
29,
-38,
-1,
-39,
-8,
-22,
-49,
-5,
4,
20,
4,
-16,
-9,
59,
-22,
-15,
28,
17,
12,
-45,
-21,
-28,
25,
-23,
31,
-37,
21,
27,
-1,
18,
8,
-39,
10,
-18,
-36,
-11,
-9,
7,
-10,
35,
-7,
44,
-23,
15,
63,
29,
-35,
2,
-11,
-3,
-1,
0,
15,
-34,
-32,
-23,
1,
-27,
29,
37,
7,
17,
-4,
20,
3,
18,
-45,
-39,
42,
2,
23,
10,
4,
5,
-56,
31,
-49,
-54,
44,
-18,
13,
-25,
5,
-24,
-31,
-18,
28,
38,
-11,
-50,
0,
-23,
47,
17,
-1,
-13,
-2,
-20,
10,
27,
0,
30,
-29,
2,
-2,
6,
-9,
-41,
-12,
-12,
-14,
-49,
-30,
-6,
-25,
-36,
-4,
17,
12,
-92,
21,
-3,
-29,
4,
36,
54,
-28,
-9,
33,
-21,
-5,
-81,
-48,
-18,
-37,
-18,
3,
68,
45,
-43,
45,
-32,
1,
-33,
-13,
-24,
-6,
24,
-13,
-46,
16,
-70,
47,
-42,
22,
-13,
12,
10,
38,
-22,
-36,
34,
17,
-38,
-29,
16,
-17,
-40,
-7,
5,
7,
-8,
-9,
-18,
9,
-3,
3,
11,
28,
23,
-49,
0,
-17,
0,
-28,
-59,
-10,
43,
29,
35,
-26,
-6,
44,
62,
6,
-28,
-6,
46,
-29,
-42,
-11,
-20,
-16,
26,
10,
3,
34,
-18,
24,
-34,
-20,
11,
22,
-35,
3,
-52,
36,
-17,
45,
25,
45,
32,
38,
10,
59,
33,
3,
-37,
14,
37,
2,
-3,
4,
63,
-18,
-13,
-32,
2,
56,
41,
-34,
1,
13,
4,
19,
-15,
55,
17,
-37,
0,
-47,
-38,
-16,
-40,
-32,
-5,
10,
-5,
56,
8,
-33,
-20,
-3,
25,
-9,
46,
-15,
58,
64,
-14,
-13,
17,
15,
-13,
5,
-13,
-9,
22,
-2,
-69,
-6,
-53,
48,
-4,
-7,
-49,
-4,
-32,
-26,
18,
-16,
12,
10,
9,
-41,
27,
-7,
-28,
-44,
-17,
-26,
6,
-21,
44,
5,
-2,
-9,
12,
72,
-47,
-74,
49,
-11,
78,
-39,
4,
-49,
-15,
-33,
19,
50,
-13,
-6,
-1,
28,
-43,
-22,
25,
10,
-25,
-37,
-1,
16,
-15,
10,
-9,
-10,
10,
26,
21,
-8,
6,
10,
-31,
-33,
-22,
-24,
-60,
53,
-5,
-47,
16,
-7,
-2,
-24,
-64,
27,
-40,
32,
-6,
-65,
-25,
42,
11,
-41,
-31,
-2,
43,
7,
-22,
-7,
59,
-23,
-93,
-7,
25,
-8,
11,
12,
30,
0,
24,
20,
-11,
-9,
-9,
20,
-46,
0,
-20,
-12,
18,
-38,
-8,
35,
-8,
-6,
-14,
41,
15,
-19,
13,
-22,
-31,
3,
-1,
-17,
-4,
24,
-59,
-35,
-19,
23,
102,
-34,
-10,
20,
51,
37,
-29,
-52,
15,
5,
74,
61,
37,
62,
27,
29,
26,
-34,
34,
0,
13,
-49,
-8,
-50,
23,
0,
4,
12,
-13,
-13,
3,
15,
-7
] |
Bushnell, J.
Edward Joseph Boucher, of Muskegon county, Michigan, on May 10, 1943, entered into a written agreement with his son, Paul L. Boucher, and daughter-in-law, Marguerite, for his “proper .support, medical attendance, care and clothing” for the remainder of his natural life. The agreement recites that he then had $4,617.09 deposited in a bank at Muskegon, and provides that none of these moneys would be withdrawn without the consent of his son and daughter-in-law. It was agreed that if Boucher later determined to live elsewhere, or terminate the contract, his son and daughter-in-law should have a lien on the “property” for the reasonable worth of the services rendered. It was further agreed that if the promises and undertakings were faithfully performed, the money in the bank should become theirs upon Boucher’s death. The agreement was signed by Edward Boucher, Paul L. Boucher and Marguerite Boucher. It was attested by 3 witnesses. One of them, who was a notary public, took the acknowledgment of all the parties.
After the death of Boucher on July 1, 1943, this agreement was presented to the probate court as Boucher’s last will and testament. A motion to dismiss the petition for probate was denied by the acting probate judge who held that the agreement “is of testamentary effect and character.”
On appeal from an order admitting the instrument to probate as a will the circuit judge determined that the issue presented was solely one of law. He held that the instrument was unambiguous, consti tuted a contract and not a will, and could not be probated as such “for lack of anything in the. instrument to indicate á testamentary intent,” citing Dodson v. Dodson, 142 Mich 586.
At the trial below the proponents offered testimony regarding the circumstances surrounding the execution of the instrument for the purpose of showing the testamentary intent of Boucher.
The trial judge held that an intent, contrary to that shown by the unambiguous language of the instrument, could not be proved by extrinsic evidence. This determination is in accord with the rule stated in Clay v. Layton, 134 Mich 317, 341, and Dodson v. Dodson, supra.
The issue in this appeal is whether the instrument, which by reason of its lien provision transferred inter vivos'a partial interest in the fund can be considered testamentary in character, because it also provides for the transfer of the entire interest in that fund upon the death of its owner.
In order to construe the instrument as a will it must operate only upon and by reason of the death of the maker, because, as said in Ireland v. Lester, 298 Mich 154, 158:
“Till then, it has no effect or force, and it is this-ambulatory quality which is characteristic of wills. A valid contract does not fall into the testamentary class simply because it is performable after the death of one of the parties, for so to hold would overlook the fact of the complete revocability that is a further characteristic of a will.”
For annotation of authorities in point, see 1 ALE 2d, p 1194.
In this instrument a present interest was conveyed by way of a lien, not contingent upon the exercise of the right of revocation. See McIntyre v. McIntyre’s Estate, 156 Mich 240. Boucher could not revoke one of the interests which he granted; the right to a lien vested immediately, and presumably carried with it the right to specific performance. See Ryckman v. Cooper, 291 Mich 556, 561. The fact that the entire fund was payable after the death of the maker does not of itself make the instrument testamentary in character. Reithmaier v. Beckwith, 35 Mich 110.
There is authority for the proposition that an instrument purporting to operate inter vivos may, if executed with the formalities of a will, operate as such. This rule is not applicable, however, to attempts to dispose of the same property inter vivos, and again after the maker’s death. Hence an instrument may be a contract concerning one piece of property and a will in relation to other and distinct property. Here, both dispositions affect a single-fund. See authorities annotated in 45 ALR, beginning at page 843.
The instrument executed by the deceased on May 10, 1943, is not subject to probate as a last will and testament.
The judgment is affirmed. Costs to appellees.
Reid, C. J., and Boyles, North, Dethmebs, Butzel, Carr, and Sharpe, JJ., concurred. | [
25,
6,
-35,
3,
-28,
-25,
43,
-5,
29,
34,
1,
-24,
15,
35,
-58,
-8,
-16,
-11,
-49,
-30,
-66,
-25,
-55,
-3,
28,
15,
26,
30,
-24,
-20,
34,
17,
-11,
41,
9,
-19,
52,
-53,
37,
31,
6,
8,
6,
8,
-26,
-27,
16,
-62,
14,
12,
-1,
2,
50,
-5,
-79,
12,
14,
3,
-34,
11,
12,
-72,
53,
15,
-32,
6,
60,
37,
-19,
-20,
-13,
7,
3,
-8,
7,
-19,
-1,
9,
-9,
-15,
42,
-29,
-29,
-39,
-34,
-19,
-49,
-10,
0,
-6,
-16,
4,
-16,
11,
-29,
13,
24,
61,
6,
11,
3,
-11,
-1,
25,
31,
8,
-20,
-7,
-21,
-45,
-13,
-19,
37,
-14,
-3,
22,
-25,
25,
20,
-12,
-41,
-20,
-22,
-67,
17,
-45,
-1,
-23,
43,
-2,
65,
26,
-49,
-13,
-36,
-13,
-11,
-16,
-15,
-9,
25,
-7,
12,
-10,
6,
-16,
-33,
-53,
9,
-18,
-22,
14,
21,
5,
7,
6,
-46,
-36,
42,
-18,
19,
8,
-10,
-27,
-3,
-17,
-29,
32,
-4,
-5,
-22,
34,
2,
-43,
26,
13,
59,
2,
-37,
-5,
-3,
23,
-2,
-3,
22,
-42,
-48,
12,
25,
-50,
-16,
-33,
27,
36,
-29,
43,
-33,
-10,
-10,
23,
40,
-79,
39,
22,
-55,
-54,
46,
-19,
1,
51,
-11,
-39,
-36,
-4,
-41,
-48,
-31,
-29,
-10,
43,
14,
10,
-1,
-31,
-47,
-13,
29,
-22,
-58,
2,
-45,
-7,
-19,
19,
35,
15,
-28,
-42,
-3,
40,
-32,
-25,
0,
-23,
-29,
-39,
-41,
12,
22,
12,
-44,
24,
-41,
18,
-5,
1,
-16,
36,
-49,
-23,
-18,
28,
-78,
26,
12,
-14,
22,
-71,
5,
2,
46,
-32,
10,
43,
1,
-54,
-23,
-3,
-18,
-41,
33,
17,
-48,
15,
-22,
5,
-38,
49,
-51,
6,
67,
-4,
18,
-16,
47,
31,
-20,
-24,
-29,
13,
0,
8,
45,
95,
-2,
24,
-34,
31,
29,
5,
-21,
-12,
3,
-30,
-19,
-11,
-48,
-21,
-7,
68,
23,
-2,
-21,
14,
10,
5,
-21,
-23,
17,
83,
17,
-15,
-18,
18,
-38,
-13,
48,
15,
31,
-38,
30,
9,
8,
-3,
2,
-22,
-8,
41,
-73,
-35,
-33,
14,
-22,
5,
-8,
0,
38,
4,
-20,
34,
21,
19,
-24,
46,
-3,
-17,
13,
35,
13,
28,
20,
35,
-53,
19,
3,
33,
0,
-16,
-58,
44,
-51,
-10,
-11,
-14,
6,
-21,
-22,
22,
-5,
-6,
-70,
-27,
-10,
1,
45,
23,
16,
14,
-65,
-47,
-15,
81,
-57,
-41,
-38,
76,
-7,
-27,
-62,
7,
-15,
12,
35,
-21,
13,
24,
11,
1,
9,
44,
1,
66,
-25,
13,
-42,
-56,
-62,
12,
-22,
-37,
36,
31,
56,
15,
64,
-6,
0,
-20,
42,
-16,
4,
0,
0,
-32,
12,
18,
-12,
-21,
12,
13,
40,
27,
-12,
5,
-23,
31,
39,
14,
-79,
6,
36,
-26,
50,
-7,
74,
9,
-34,
43,
24,
-15,
-26,
-22,
-22,
-12,
0,
-20,
-15,
-21,
-4,
37,
19,
1,
7,
9,
39,
-67,
-51,
9,
13,
-23,
52,
-33,
-19,
26,
-17,
-58,
-46,
6,
48,
6,
34,
36,
6,
36,
4,
-7,
-4,
-70,
-18,
8,
1,
-3,
15,
26,
-33,
21,
58,
-10,
27,
41,
20,
-11,
-28,
26,
11,
1,
29,
35,
-35,
18,
-6,
36,
21,
-39,
-1,
-34,
3,
-9,
-27,
-42,
-14,
-12,
6,
34,
-26,
15,
-19,
-33,
16,
-37,
-57,
-79,
34,
1,
50,
45,
25,
-24,
2,
-28,
49,
33,
-27,
-11,
20,
-38,
-23,
1,
20,
-33,
-25,
-19,
21,
13,
-25,
10,
-8,
-8,
-34,
-12,
9,
27,
16,
-7,
28,
3,
-16,
-6,
10,
-21,
41,
15,
-20,
-26,
-2,
14,
0,
4,
-22,
35,
-16,
37,
-24,
-7,
-19,
-17,
-9,
-10,
-1,
-27,
22,
12,
-15,
23,
0,
21,
33,
-76,
8,
13,
7,
35,
10,
-7,
33,
48,
13,
-3,
34,
28,
19,
6,
-2,
9,
-14,
42,
-23,
38,
12,
-59,
-17,
-1,
-4,
-5,
-13,
-24,
-17,
0,
87,
22,
-39,
2,
47,
45,
6,
-36,
-12,
-13,
36,
12,
39,
-41,
-51,
6,
25,
27,
31,
16,
20,
40,
45,
22,
-14,
-21,
-2,
63,
-1,
84,
50,
42,
-18,
27,
-19,
29,
28,
-31,
64,
-49,
-33,
-9,
11,
-24,
7,
-27,
8,
-50,
20,
39,
28,
44,
12,
-4,
7,
-7,
-96,
2,
-35,
-32,
-4,
-12,
-30,
14,
10,
-5,
-28,
32,
24,
12,
-9,
-56,
-72,
-13,
-16,
-32,
38,
8,
91,
-15,
-32,
17,
10,
-53,
19,
-7,
76,
34,
77,
-12,
10,
-18,
-36,
-10,
10,
-1,
-7,
-7,
-24,
7,
-19,
20,
23,
4,
10,
15,
-57,
18,
-7,
73,
0,
0,
-29,
57,
4,
23,
38,
-24,
-44,
47,
-14,
-41,
-25,
-30,
-27,
16,
-40,
-42,
-26,
-14,
36,
5,
52,
48,
-38,
-6,
51,
-13,
34,
-36,
17,
55,
-42,
0,
-7,
-3,
5,
19,
30,
0,
55,
-18,
15,
45,
6,
34,
33,
4,
2,
39,
21,
38,
-7,
44,
14,
-39,
-6,
-21,
-32,
-7,
6,
-22,
0,
10,
10,
-19,
-51,
39,
15,
-48,
-83,
-27,
20,
0,
-29,
-18,
4,
0,
-17,
-1,
-28,
16,
34,
-32,
-43,
28,
5,
-8,
30,
-5,
-4,
-55,
40,
-15,
26,
47,
32,
-33,
-11,
22,
-45,
25,
-2,
32,
-14,
5,
48,
17,
-13,
10,
4,
-57,
-53,
-19,
-25,
7,
36,
30,
20,
-48,
-39,
32,
-13,
105,
-70,
-18,
-27,
66,
68,
-34,
-13,
29,
9,
17,
-54,
-19,
-28,
-19,
-35,
-51,
-2,
19,
-17,
-31,
-34,
22,
-13,
47,
21,
56,
52,
33,
17,
-4,
9,
15,
7,
22,
-21,
11,
8,
1,
47,
-24,
-7,
5,
-2,
-28,
0,
27,
-65,
13,
30,
17,
25,
-58,
32,
-5,
27,
-4,
43,
-32,
25,
-7,
-54,
-14,
21,
52,
-38,
-48,
-29,
67,
-12,
5,
15,
32,
1,
3,
-21,
25,
-21,
17,
-63,
20,
-1,
0,
41,
-25,
-30,
-43,
11,
17,
-3,
-1,
-31,
-42,
-54,
-83,
74,
8,
-38,
-37,
-20,
2,
-44,
35,
-9,
-10,
6,
-28,
-50,
-57,
39,
21,
-34,
-17,
43,
-1,
80,
-6,
-5,
-17,
-25,
-6,
0,
58,
-23,
-26,
30,
5,
-20,
-26,
1,
48,
18,
22,
9,
31,
-10,
8,
0,
33,
-7,
-15,
-25,
51
] |
Boyles, J.
On October 15, 1947, plaintiff filed a ■bill of complaint in the circuit court for Wayne county in chancery asking that the State tax commission be declared without jurisdiction to review an assessment of taxes on its personal property for 1947, and that said State tax commission be enjoined from taking any steps toward' increasing plaintiff’s assessment. The defendants moved to have the bill of complaint dismissed on the grounds, among othr ers, that the plaintiff had an adequate remedy at law, and that the State tax commission had.acquir,e4 sole jurisdiction to review the assessments and to reassess plaintiffs personal property. The trial court granted the motion and plaintiff appeals. At the oral argument in this Court, counsel for the defendants withdrew the claim that the plaintiff had an adequate remedy at law, and the sole question here for decision is whether the State tax commission had acquired jurisdiction. Does the State tax commission have jurisdiction to review and increase a tax assessment for 1947 on the personal property of the plaintiff corporation?
The board of assessors of the city of Detroit assessed the personal property of the plaintiff for 1947 taxes at the sum of $4,679,020. The common council of the city of Detroit, acting as a board of review under the city charter, confirmed the assessment. On June 16, 1947, the board of assessors, by its secretary, sent a request to the State tax commission, as follows:
“Attached herewith is a list of taxpayers that filed personal property statements with this office and some that neglected to file statements for the years 1947-1948.
“Examination of the taxpayer’s books and records discloses that the taxpayers either inadvertently or purposely omitted certain items of property or reported the property at less than the cost and true value. In the case of taxpayers that did not file, it was discovered after audit that the assessor’s estimate was less than true value.
“We, therefore, respectfully request that you reassess the property of the taxpayers listed herein.
“The recommended assessments opposite each taxpayer’s name are based upon audits of books, records, and other evidence of value.”
Included in the list of taxpayers referred to in the above request was the name of plaintiff, with a re quest that the State tax commission reassess plaintiff’s property in the sum of $8,548,250.
On the same date one Kenneth J. McCarren, a taxpayer of the city of Detroit who was also a member of the city board of assessors, sent the following request to the State tax commission:
“It is requested that your honorable body reassess the personal property of several taxpayers, in order that each be required to pay their equitable share of the tax burden.
“The recommendations' of the board of assessors were submitted to you after each taxpayer’s books and records had been examined by accountants and appraisers, and in each instance consideration was given to depreciation, obsolescence and other factors affecting the valuation of the taxpayers’ property. It is imperative that the recommendations of the assessors should be considered and the assessments revised, otherwise great inequities and injustice will exist and other taxpayers will be required to pay excessive and unjust taxes that should be borne by the taxpayers listed in the assessor’s recommendations.
“Therefore, I, Kenneth J. McCarren, a taxpayer, residing at 2162 Manistique avenue, in the city of Detroit, and paying real estate taxes on the property commonly known as 2162 Manistique avenue and personal taxes on the tangible property located at the above address, do hereby petition the State tax commission to review the assessments of persons named herein and revise assessments against said taxpayers, in order that all taxpayers shall be assessed equitably and pay their fair and just share of the cost of government.”
On June 18th the State tax commission sent plaintiff by registered mail a notice of acceptance of jurisdiction of the matter, as follows:
“Official notice is hereby served that the commission is in receipt of a complaint from the Detroit board of assessors relative to the improper assessment of the above described personal property located in the city of Detroit, which has been accepted for investigation in accordance with the provisions of Act No. 206, § 150, subd. 3, Pub. Acts 1893, as amended.
“This petition requests an adjustment of the 1947 personal property assessment of your company in the city of Detroit from the present figure of $4,679,-020 to $8,548,250, based upon results of a recent audit of your personal property records by them. Photostatie copies of the audit and other pertinent data are now on file with this commission.
“Please give this official notice your immediate and careful consideration and advise this commission as to your position in this matter. Failure on YOUR PART TO FILE A WRITTEN PROTEST WITH THIS COMMISSION WITHIN 10 DAYS OF THE MAILING OF THIS NOTICE, REQUESTING AN INVESTIGATION BY AND A HEARING BEFORE THIS BODY, WILL BE REGARDED AS WAIVER OF PROTEST.”
The record before us does not show what action, if any, was thereafter taken by the State tax commission, but we find a statement in an affidavit made by Kenneth J. McCarren October 20, 1947, and filed on that date in support of defendants’ motion to dismiss the bill of complaint in the instant case, to the effect that the list submitted to the State tax commission for review of the 1947 assessments had not yet been acted upon by the State tax commission.
The constitutional mandate with reference to ad valorem assessment of property is as follows:
“All assessments hereafter authorized shall be on property at its cash value.” Michigan Constitution (1908), art. 10, § 7.
In so far as it applies to the issue before us, the statute defines the duties of the board of State tax commissioners as follows:
“Sec. 150. It shall be the duty of said board:
“1. To have and exercise general supervision over •the supervisors and other assessing officers of this State, and to take such measures as will secure the enforcement of the provisions of this act, to the end that all the properties of this State liable to assessment for taxation shall be placed upon the assessment rolls and assessed at their actual cash value; * # #
“3. To receive all complaints as to property liable to taxation that has not been assessed or that has been fraudulently or improperly assessed, and to investigate the same, and to take such proceedings as will correct the irregularity complained of, if any is found to exist;” 1 Comp. Laws 1929, § 3545 (Stat. Ann. § 7.208).
Authority to review assessment rolls and reassess property for taxes is conferred upon the board of State tax commissioners, as follows:
“Sec. 152. After the various assessment rolls required to be made under this act or under the pro: visions of any municipal charter shall have been passed upon by the several boards of review, and prior to the making and delivery of the tax rolls to the proper officer for collection of taxes, the said several assessment rolls shall be subject to inspection by said board of State tax commissioners or by any member or duly authorized representative thereof and in case it shall appear to said board after such investigation, or be made to appear to said board by -written complaint of any taxpayer, that property subject to taxation has been omitted from or improperly described upon said roll or individual assessments have not been made in compliance with law, the said board may issue an order directing the assessor whose assessments are to be reviewed to appear with his assessment roll and the sworn statements of the person or persons whose property or whose assessments are to be considered at a time and place to be stated in said order, said time to be not less than 7 days from the date of the issuance of said order, and the place to be at the office of the board of supervisors at the county seat or at such other place in said county in which said roll was made as said board shall deem most convenient for the hearing herein provided.” 1 Comp. Laws 1929, § 3547 (Stat. Ann. § 7.210).
Under the above provisions, the assessment roll of plaintiff’s personal property for taxes, after the assessment roll had been passed upon by the common council acting as a board of review, was “subject to inspection by said board of State tax commissioners or by any member or duly authorized representative thereof.” The State tax commission accepted jurisdiction upon the request of the board of assessors, and upon the written complaint of Kenneth J. McCarren individually, as a taxpayer. In addition, it had before it “photostatic copies of the audit and other pertinent data” based upon the results of a recent audit of plaintiff’s personal property taken after plaintiff had filed a statement of its personal property with the Detroit board of assessors. The State tax commission gave plaintiff prompt “official” notice that it was in receipt of a complaint relative to the improper assessment of plaintiff’s personal property. Neither the phraseology of the notice nor the failure to give notice that an “investigation” had already been made by the State tax commission can operate to deprive the State tax commission of its statutory authority to review the assessment rolls. The notice sent to plaintiff by the State tax commission on June 18th was not required by the statute as a condition precedent to action by the commission under section 152 hereinbefore quoted in part.
The plain fact is that the commission had complaints by the Detroit board of assessors, and by a taxpayer as an individual, that plaintiff had either inadvertently or purposely omitted certain items of property, or reported property at less than true value. The statute does not demand that the State tax commission make a formal declaration that it “has made an investigation,” as a condition precedr ent to its power to act. In an analogous tax case, under this statute, holding that the order of the State tax commission wras not fatally defective for failure to make it apparent how it came to be shown that the assessment required an investigation or review, the Court said:
“The sole point raised is that the order and petition should affirmatively allege that the former was based on an inspection of the rolls. We do not think that position well taken; but, if it were, it may be presumed that the State board had procured its information in the manner prescribed by the statute. This was official action, and we see no reason why the general presumption as to the validity of official action might not properly be invoked. But the statute does not in terms require an inspection of the rolls by the board. The statute simply provides that:
“ ‘The said several assessment rolls shall be subject to inspection by said board of State tax commissioners or by any member, or duly authorized rep resentative thereof.’ Act No. 153, § 152, Pub. Acts 1913.
“The board might get its information from any of the different sources pointed out by the statute.
“It is too narrow a view to say that the words ‘such investigation,’ found in section 152, refer simply to the ‘inspection’ of the rolls; it is more reasonable to hold that they refer to all the other avenues open to investigation. The words ‘inspection’ and ‘investigation’ are not synonymous; and it is more reasonable to say that the words ‘such investigation’ refer to the investigation, and examination of witnesses and documents referred to in the preceding-sections, as above noted. While the rolls are subject to the inspection of the board, the statute does not make it obligatory upon the board to make inspection thereof. A mere inspection of the rolls probably would not determine whether there was an improper assessment, but ‘such investigation,’ as is mentioned in the preceding sections of the statute referred to, would naturally ténd to throw light upon the subject. In construing section 152 we should look, not only to its general purpose, but also to the other provisions of the tax law that are in point. So considered, an intent is manifest to confer on the board of State tax commissioners authority to conduct a review whenever it is made to appear that the local assessment rolls have not been prepared in accordance with the law; in other words, when it appears that property is not being assessed at its true cash value, or the property is being omitted altogether. As stated, an inspection of the rolls alone might not, and probably would not, determine the existence of either fact.” Board of State Tax Commissioners v. Kohler, 193 Mich. 420, 426, 428.
Nor is there merit in appellant’s argument that the complaint of McCarren individually, as a taxpayer, must be ignored by the State tax commission because lie was a member of the board of review. Appellant, to support its claim, cites Davies v. National Land & Investment Co., 76 Ohio St. 407 (81 N. E. 755). The difference between that case and the case at bar is plain. In that case the only “complaint” that was filed was made by the clerk of the board of review, by order of the board of review, on which “complaint” the same board of review attempted to increase taxable values. The court said (p. 441):
“No interested taxpayer seems to have come forward to demand a readjustment of real estate values. Is the statute complied with by the filing of complaint by the clerk? If a case of perpetual motion is desired, such practice would be convenient, but it is not an automatic action that the statutes recognize or allow, but there must be a real complaint by some one interested in having a change of valuation and an equalization within the rules of the law.”
Other cases relied upon by appellant from other jurisdictions are under dissimilar statutes treating the jurisdiction of the reviewing tax authority as an “appeal” from the acts of inferior assessing officers. This is not the same situation as in this State where it is the statutory duty of the State tax commission “to receive all complaints as to property liable to taxation” and investigate the same. (Section 150, supra.)
The State tax commission had jurisdiction. The order dismissing the bill of complaint is affirmed, with costs to appellees.
Bushnbll, C. J., and Sharpe, Reid, North, Dethmers, and Carr, JJ., concurred. Butzel, J., did not sit.
By Act No. 155, § 2, Pub. Acts 1925 (1 Comp. Laws 1929, § 3706 [Stat. Ann. § 7.621]), the powers and duties of the board of State tax commissioners were transferred to the State tax department and the board abolished. By Act No. 360, § 3, Pub. Acts'1927 fl Comp. Laws 1929, § 3712 [Stat. Ann. § 7.633]), the powers and duties of the State tax department were transferred to the State tax commission and the department abolished.—Reporter.
See footnote to p. 16. — Reporter.
See footnote to p. 16. — Reporter.
See footnote to p. 16.—Reporter.
Commonwealth v. Big Sandy Co., 155 Ky. 412 (159 S. W. 956); State Tax Commission v. County Commissioners of Baltimore County, 138 Md. 668 (114 Atl. 717); State v. Ide Cotton Mills, 175 Ala. 539 (57 South. 481); In re Assessment of Muskogee Gas Electric Co., 83 Okla. 167 (201 Pac. 358); Borough of Kenilworth, Prosecutor, v. Board of Equalization of Taxes, 78 N. J. Law, 302 (72 Atl. 966); People, ex rel. Board of Supervisors of Westchester County, v. Hadley, 14 Hun (21 N. Y. Sup.), 183. | [
-84,
12,
1,
-46,
-63,
3,
35,
-1,
-32,
-8,
33,
-32,
-23,
1,
38,
-39,
-4,
9,
25,
-5,
-20,
31,
25,
58,
0,
0,
58,
-15,
29,
-18,
-30,
-7,
-27,
61,
62,
15,
10,
6,
2,
5,
-54,
32,
-27,
5,
1,
-9,
2,
-24,
30,
-17,
-40,
9,
12,
22,
19,
-41,
-46,
31,
20,
0,
-3,
37,
-7,
27,
29,
1,
18,
-13,
50,
-41,
-15,
-1,
33,
-2,
-7,
-4,
-2,
-11,
-14,
21,
15,
-35,
19,
-5,
2,
26,
53,
-18,
2,
-30,
35,
2,
-5,
0,
40,
23,
40,
-7,
21,
-16,
-29,
10,
-14,
42,
-1,
-23,
0,
-52,
-13,
-26,
28,
6,
0,
2,
-22,
38,
-17,
-51,
35,
27,
3,
-5,
17,
-69,
20,
33,
17,
-43,
13,
39,
19,
33,
17,
-28,
-34,
-7,
10,
-19,
28,
27,
-9,
11,
0,
-47,
2,
88,
-33,
-28,
46,
-50,
14,
-23,
10,
73,
-24,
-39,
3,
-35,
13,
-55,
20,
-1,
-16,
-55,
-2,
0,
-5,
-1,
-56,
1,
58,
-26,
4,
-2,
0,
-12,
-28,
43,
-49,
-18,
6,
-28,
14,
-46,
20,
-22,
41,
-50,
-40,
-76,
62,
-13,
-11,
3,
-50,
7,
71,
66,
-7,
1,
-17,
-28,
-27,
-13,
-17,
15,
13,
-12,
-23,
-8,
-24,
32,
29,
-5,
-12,
31,
50,
-50,
5,
7,
47,
-7,
31,
-16,
17,
18,
-34,
24,
40,
14,
19,
9,
-21,
-35,
-41,
8,
48,
17,
7,
-35,
-61,
15,
41,
-7,
-15,
54,
-18,
11,
23,
29,
-3,
-19,
-17,
-31,
-54,
-37,
13,
-16,
25,
-3,
-7,
56,
10,
-28,
-29,
7,
50,
4,
-19,
-31,
-22,
33,
-5,
-9,
29,
-1,
6,
-44,
33,
13,
-39,
-50,
52,
49,
-11,
54,
5,
18,
28,
6,
-19,
1,
10,
-15,
-21,
-6,
42,
-15,
27,
21,
0,
49,
27,
16,
-6,
-37,
9,
-27,
15,
22,
52,
20,
-7,
-9,
64,
-16,
-9,
-4,
22,
-3,
32,
44,
-9,
16,
-19,
-26,
35,
-37,
6,
-36,
8,
-2,
31,
-26,
-6,
-20,
-18,
-14,
-19,
0,
36,
0,
29,
0,
14,
7,
-49,
3,
2,
8,
-25,
-5,
-31,
49,
44,
43,
59,
-19,
-52,
19,
20,
45,
12,
-36,
-10,
0,
-40,
-52,
6,
12,
20,
20,
-19,
12,
-15,
-25,
-32,
-14,
-41,
0,
17,
-35,
-41,
29,
26,
-64,
20,
-29,
11,
-31,
-16,
20,
23,
14,
1,
-31,
17,
-33,
-48,
7,
-48,
29,
-4,
85,
-61,
-17,
56,
29,
-23,
40,
-29,
-45,
33,
-2,
-35,
29,
42,
6,
12,
-29,
22,
60,
-15,
-50,
-20,
-64,
-12,
49,
22,
55,
-7,
-24,
-1,
-23,
31,
-25,
-37,
-18,
-1,
4,
-73,
15,
-21,
8,
-1,
-88,
-56,
38,
22,
51,
18,
-7,
-20,
-11,
-12,
19,
60,
-55,
53,
-36,
16,
-47,
-13,
-12,
-24,
-18,
-12,
37,
36,
20,
-40,
16,
-28,
-52,
-41,
-29,
-19,
-41,
24,
12,
17,
-18,
-42,
1,
-26,
14,
20,
-28,
-19,
0,
0,
-14,
22,
-3,
26,
0,
-40,
45,
7,
-19,
-17,
13,
30,
-38,
3,
-3,
-31,
39,
-12,
15,
-37,
-14,
7,
49,
-15,
41,
1,
15,
72,
-31,
-25,
17,
-41,
-25,
4,
-3,
14,
-21,
55,
4,
11,
-4,
4,
22,
-70,
26,
0,
27,
14,
17,
25,
-3,
-17,
3,
55,
8,
-13,
-6,
-9,
28,
-15,
-55,
20,
-12,
-19,
-28,
7,
-4,
0,
11,
30,
33,
8,
-6,
10,
-11,
4,
-38,
29,
-3,
-13,
16,
49,
-35,
6,
-3,
-27,
-36,
5,
-15,
-27,
13,
25,
-24,
24,
34,
38,
-14,
26,
15,
-35,
-16,
-32,
20,
-4,
-42,
1,
-7,
67,
-15,
-21,
-42,
1,
-3,
-10,
18,
-2,
-8,
-9,
-10,
61,
-11,
-4,
-16,
-12,
79,
-14,
-22,
-14,
40,
13,
0,
65,
-1,
-7,
-35,
17,
-26,
-53,
-1,
6,
-24,
10,
15,
-33,
24,
43,
-18,
-22,
-29,
-49,
-37,
-43,
-12,
8,
22,
-29,
2,
-35,
22,
3,
54,
-28,
12,
-19,
11,
-6,
-68,
21,
-19,
25,
-18,
-13,
29,
6,
2,
-10,
-9,
24,
19,
-56,
8,
-8,
-1,
-33,
-56,
-74,
-6,
52,
27,
-7,
44,
-24,
30,
20,
-7,
-16,
-6,
12,
9,
-12,
43,
-6,
-5,
-54,
0,
-3,
20,
16,
-6,
-23,
21,
23,
67,
-24,
43,
8,
32,
-5,
-32,
39,
-21,
-75,
22,
-8,
14,
26,
-6,
-43,
8,
-14,
-95,
15,
-43,
51,
3,
-6,
12,
17,
0,
4,
31,
7,
-26,
8,
24,
12,
8,
-7,
-37,
57,
21,
-8,
-5,
10,
5,
43,
14,
-14,
-6,
-24,
50,
7,
14,
13,
-10,
1,
8,
-33,
12,
4,
22,
-13,
7,
-21,
-7,
2,
-19,
41,
12,
-73,
42,
-7,
-47,
19,
20,
-9,
-36,
-12,
-47,
-6,
-4,
18,
19,
-32,
-18,
1,
-70,
4,
-10,
-14,
-15,
-22,
-44,
2,
18,
1,
45,
-29,
-15,
-21,
58,
26,
-2,
21,
13,
-14,
-8,
1,
60,
-16,
9,
-30,
-24,
17,
-40,
-21,
46,
21,
-36,
-12,
-7,
1,
6,
-34,
-22,
-6,
13,
22,
39,
-13,
-5,
-56,
26,
26,
-15,
9,
15,
10,
-12,
10,
7,
-47,
24,
7,
45,
-68,
-3,
-73,
1,
-40,
16,
-38,
51,
15,
34,
18,
26,
0,
-61,
54,
14,
-22,
-25,
-6,
15,
10,
-34,
12,
47,
15,
45,
-33,
-9,
49,
8,
18,
23,
1,
-53,
-10,
-36,
-14,
-71,
-29,
19,
63,
17,
-24,
31,
47,
13,
20,
-13,
15,
5,
-23,
2,
32,
-32,
-31,
24,
20,
-14,
-17,
-1,
-16,
-33,
-14,
9,
8,
0,
29,
-24,
9,
-36,
-45,
-42,
4,
19,
47,
-7,
-44,
-3,
-40,
-71,
32,
17,
4,
15,
-17,
20,
-49,
14,
18,
-22,
14,
-59,
-7,
-67,
9,
4,
-14,
-24,
5,
-16,
-23,
35,
-26,
15,
-2,
-33,
52,
51,
-5,
-11,
-46,
-54,
7,
-5,
-24,
-17,
3,
13,
-33,
20,
-6,
-29,
5,
-18,
-22,
13,
1,
-23,
1,
13,
-37,
8,
18,
10,
7,
-24,
-11,
58,
32,
-48,
17,
-9,
-32,
10,
26,
-3,
49,
-4,
-36,
29,
28,
17,
21,
-13,
24,
-13,
9,
-40,
48,
-37,
56,
-20,
28,
19,
25,
67,
28,
42,
-24,
13,
12,
9,
-28,
-30,
25,
-10,
-34,
16
] |
Wiest, J.
Plaintiffs owned premises in the city of Detroit, abutting a 20-foot alley, which alley was dedicated, by recorded plat, to public use. In 1921 the city opened a street, taking the public alley as part thereof, and obtained additional land by condemnation, then paved the center of the street to a width of 30 feet, left a grass plot between the curb and sidewalk and installed a sidewalk opposite plaintiffs’ premises and alley, less than two feet from their lot line, and assessed plaintiffs for the opening, grading, paving and sidewalk.
Plaintiffs filed the bill herein in November, 1930, to have the assessments declared void, money paid refunded and future instalments enjoined on the ground that the part of the alley abutting their premises, and lying between their premises and the sidewalk, was not taken for street purposes, either by condemnation or actual user and, therefore, under the city charter and our holding in Alexander v. City of Detroit, 259 Mich. 241, there is still a part of the alley between their premises and the street and they are not abutting owners upon the street and cannot be assessed. The bill was dismissed and plaintiffs prosecute this appeal.
It seems to be the uniform practice in the city of Detroit to install sidewalks a short distance from lot lines and such was done in this instance. The strip between the edge of the sidewalk and the lot line was left to enable installation of tbe sidewalk without trespassing upon abutting property and was, in fact, a part of the street. Here was no taking of excess land, leaving plaintiffs ’ property abutting the excess and, therefore, not abutting the street like in the Alexander Case but use of the whole alley upon which plaintiffs’ premises abutted. It was not necessary for the city to exercise the right of eminent domain in making use of the alley for it did not seek to discontinue the use of the land for the purpose for which it was dedicated to the city but improved it, with other land,- into a better public way.
The city of Detroit, it seems, may exercise the right of condemnation in excess of need and when it does so and takes more property than it intends to use for street purposes and, therefore, holds title to such excess property between the street, as established, and property adjoining such excess, it cannot assess such adjoining property for the improvement under the provisions of the charter. For such cases see Panfil v. City of Detroit, 246 Mich. 149; Emmons v. City of Detroit, 255 Mich. 558; Linski v. City of Detroit, 260 Mich. 385; Malolepszy v. City of Detroit, 260 Mich. 387; Kubit v. City of Detroit, 260 Mich. 388; Kamnkolski v. City of Detroit, 260 Mich. 389; Alexander v. City of Detroit, supra. The rule established by these cases does not apply to the case at bar. The whole alley was absorbed by the better public way and no part thereof left to separate plaintiffs’ premises from the street, so established, and the sidewalk installed.
The decree is affirmed, with costs to defendant.
Nelson Sharpe, C. J., and Potter, North, Fead, Btjtzel, Btjshnell, and Edward M. Sharpe, JJ., concurred. | [
-51,
84,
-5,
-27,
-16,
2,
0,
2,
-14,
45,
-49,
-5,
49,
12,
-6,
43,
3,
20,
-66,
50,
-16,
-6,
-8,
-16,
11,
34,
44,
-43,
21,
12,
25,
-53,
-38,
54,
3,
30,
19,
1,
50,
2,
31,
10,
-41,
-34,
53,
-6,
44,
-24,
51,
-16,
-57,
23,
13,
3,
-52,
-75,
-45,
4,
-26,
13,
-1,
20,
-59,
28,
32,
9,
-9,
11,
9,
-48,
-45,
-23,
-30,
-59,
51,
-16,
-2,
-22,
15,
-15,
-24,
-12,
33,
18,
10,
23,
-17,
-36,
-19,
-50,
-28,
-3,
38,
42,
-11,
61,
48,
-10,
-10,
-40,
-8,
48,
-7,
14,
17,
17,
-6,
-44,
36,
-38,
2,
33,
19,
26,
25,
-5,
14,
-3,
58,
19,
-14,
-7,
-11,
1,
-48,
0,
-61,
-15,
-18,
-27,
18,
10,
3,
18,
3,
61,
-36,
4,
0,
58,
9,
-10,
-14,
-40,
8,
32,
-11,
30,
30,
-83,
-9,
-6,
20,
-14,
-11,
24,
1,
15,
51,
-10,
-1,
-43,
11,
-35,
-17,
26,
-14,
24,
27,
52,
40,
-59,
30,
-47,
3,
8,
-7,
16,
-50,
-38,
4,
10,
-6,
-32,
17,
-42,
-36,
-40,
-16,
-28,
39,
-20,
-16,
-36,
3,
39,
19,
38,
-27,
-23,
-6,
-14,
-6,
-38,
5,
23,
4,
43,
8,
-3,
-21,
15,
-5,
-34,
62,
-16,
25,
-42,
9,
6,
9,
-33,
23,
0,
0,
10,
-20,
-22,
28,
-2,
2,
-21,
15,
-2,
-49,
4,
0,
33,
-49,
-5,
32,
73,
-28,
-22,
-43,
35,
27,
31,
58,
8,
19,
-33,
-43,
-13,
-31,
-24,
-21,
-64,
31,
5,
17,
59,
-4,
-28,
55,
35,
-15,
-15,
-48,
19,
-61,
42,
-35,
15,
-53,
-55,
-14,
-31,
-32,
22,
-10,
-22,
15,
35,
24,
53,
6,
12,
8,
16,
-4,
-14,
-36,
-2,
-11,
1,
9,
-11,
47,
13,
-41,
26,
-13,
30,
34,
-4,
22,
0,
85,
4,
-14,
16,
0,
-15,
28,
35,
44,
18,
26,
-31,
16,
32,
7,
5,
-55,
-12,
44,
-39,
-42,
-36,
35,
12,
23,
17,
-5,
-10,
28,
-30,
-23,
-8,
32,
-3,
4,
9,
77,
5,
-36,
14,
22,
21,
-34,
8,
-63,
0,
-33,
-27,
21,
19,
-23,
60,
39,
17,
53,
-7,
-35,
-11,
-43,
25,
19,
-3,
-27,
-5,
-29,
47,
24,
-22,
36,
-16,
-32,
9,
-5,
-43,
41,
36,
34,
0,
-12,
-21,
12,
-9,
-60,
21,
-1,
39,
11,
-26,
18,
11,
-7,
19,
4,
44,
1,
50,
-45,
-28,
53,
31,
17,
29,
-20,
-13,
18,
-16,
-8,
32,
-51,
-14,
14,
17,
32,
14,
0,
-22,
-6,
-26,
36,
-10,
-28,
-21,
-33,
-1,
-28,
-18,
6,
-3,
-29,
-23,
-33,
-23,
-37,
-19,
-28,
0,
-28,
9,
-18,
-4,
-18,
21,
52,
84,
0,
-9,
25,
-10,
11,
-23,
64,
13,
8,
-14,
9,
-24,
-22,
-31,
-40,
-16,
-20,
7,
-4,
62,
24,
1,
-4,
-21,
0,
-2,
-22,
-2,
21,
19,
46,
8,
1,
26,
2,
-15,
-44,
10,
23,
-10,
64,
11,
38,
-51,
-29,
-3,
-4,
-5,
10,
20,
-78,
0,
14,
-54,
-28,
-3,
18,
22,
-17,
24,
7,
32,
-10,
50,
26,
-38,
30,
-58,
-1,
-29,
-5,
-12,
5,
24,
33,
2,
18,
11,
30,
-22,
-31,
0,
-38,
-38,
-25,
12,
0,
-1,
-23,
0,
47,
1,
-16,
10,
22,
2,
42,
-13,
-52,
0,
-33,
6,
-8,
1,
-8,
-39,
12,
57,
-67,
19,
7,
-37,
18,
-17,
29,
-54,
-12,
77,
-67,
5,
58,
-70,
-53,
-26,
-2,
-57,
-22,
0,
-25,
-12,
-18,
-14,
18,
45,
28,
17,
-10,
28,
-1,
-15,
0,
0,
-1,
17,
39,
53,
12,
12,
0,
-26,
-27,
-14,
-57,
-26,
-13,
-50,
4,
-31,
31,
10,
-31,
27,
-10,
81,
9,
-7,
100,
-28,
16,
-17,
-11,
21,
22,
-23,
1,
23,
-45,
85,
-14,
20,
0,
31,
74,
-24,
71,
10,
25,
31,
-30,
-1,
-23,
8,
15,
60,
-25,
16,
-38,
15,
-37,
75,
20,
-18,
-15,
5,
0,
-28,
10,
-25,
10,
-1,
-37,
0,
-16,
-24,
3,
-40,
6,
-30,
-2,
43,
26,
14,
6,
-5,
-35,
58,
41,
37,
-22,
-21,
-63,
59,
26,
-20,
-4,
-19,
51,
16,
31,
-14,
3,
-14,
1,
13,
22,
-21,
3,
18,
-26,
11,
31,
29,
-36,
18,
-37,
10,
-35,
-41,
55,
-41,
-16,
15,
-6,
22,
0,
17,
3,
7,
50,
-22,
-19,
-109,
34,
-19,
-18,
-27,
-9,
75,
1,
-16,
54,
-41,
-31,
0,
-52,
-10,
60,
-62,
30,
-19,
6,
20,
-75,
-50,
10,
21,
-21,
10,
-20,
-2,
42,
11,
-30,
-34,
-28,
32,
-51,
-10,
-27,
-23,
17,
13,
-21,
-41,
-8,
1,
51,
-19,
-67,
17,
-17,
-13,
-35,
10,
-13,
5,
26,
3,
-57,
-12,
-7,
3,
0,
21,
-6,
8,
26,
29,
-34,
1,
9,
10,
-31,
31,
-47,
-26,
47,
-14,
-11,
16,
-19,
-18,
37,
-5,
-41,
47,
0,
5,
-45,
-34,
-26,
-18,
-5,
12,
24,
61,
-5,
16,
-27,
36,
-20,
-7,
27,
-9,
19,
-47,
-2,
-9,
57,
1,
-40,
57,
-26,
-11,
12,
71,
32,
2,
-41,
-11,
-32,
42,
3,
12,
-50,
28,
-17,
28,
-34,
37,
28,
21,
4,
18,
6,
-21,
-5,
12,
105,
-1,
-7,
-10,
8,
23,
-3,
-31,
50,
18,
-17,
66,
15,
-51,
1,
-2,
-40,
-12,
-39,
8,
4,
27,
-1,
-5,
-26,
22,
42,
-6,
-12,
39,
54,
21,
-24,
-8,
-12,
-8,
-10,
-17,
54,
-59,
-43,
-26,
28,
-9,
-67,
14,
17,
74,
8,
-66,
0,
-59,
-10,
24,
-17,
-48,
-71,
-16,
-6,
-3,
-4,
13,
-44,
-48,
-85,
-40,
-18,
20,
2,
22,
-57,
-4,
5,
-27,
-30,
-32,
37,
-26,
-34,
-49,
-8,
12,
20,
57,
-4,
-5,
-17,
30,
3,
-26,
6,
6,
-10,
30,
-8,
9,
-66,
-29,
-39,
22,
30,
32,
-2,
-37,
26,
-16,
39,
1,
15,
45,
-51,
3,
-3,
24,
25,
-21,
-61,
8,
-45,
-16,
-11,
-33,
36,
39,
-23,
31,
27,
0,
1,
-56,
-31,
43,
-25,
20,
-43,
-2,
-5,
84,
-20,
-37,
24,
52,
-23,
-37,
7,
35,
70,
-38,
1,
-38,
-61,
16,
44,
39,
-6,
11,
-25,
48,
-65,
4,
-4,
-19,
-38,
43
] |
North, J.
Plaintiffs, copartners, did certain surveying and engineering work for the township of West Bloomfield. They brought this suit against the township and also against the members of the township board to recover the reasonable value of such services. Trial was without a jury. Plaintiffs had judgment against the township but not against the individual members of the township board. The township has appealed.
Plaintiffs’ suit involves recovery for five items. As to two of these items, amounting to $60.60, defendant township admits liability. The three controverted items as set forth in plaintiffs ’ bill of particulars are:
1. Engineering services, location meander line Pine lake $ 90.00
2. Establishing center line of road on northerly side of Pine lake 523.65
3. Locating West Bloomfield township north line through Sylvan village 320.55
Appellant asserts there is no competent testimony by which liability of the township is established as to any of the contested items. Plaintiffs’ testimony was that the supervisor of the township, Mr. Saimers, employed them. As bearing upon his authority plaintiffs’ proof disclosed that on June 2, 1925, the following action was taken at a meeting of the township board:
“It was further moved and supported that the township employ county engineer to resurvey the meandered lines of Orchard lake and Pine lake, thus to re-establish the lines of the government survey made in 1817, said engineer to also establish road lines; this survey to take in the east and southwest shores of Orchard lake and the north shore of Pine lake. Motion carried.”
Plaintiffs contend that the above-noted action of the board was intended to and did authorize their employment for the services covered by the items one and two of the bill of particulars. Appellant first points out that the action of the township above quoted did not authorize employment of plaintiffs, but instead specifically provided for the employment of the “county engineer.” Review of the record satisfies us the circuit judge correctly found that the proceedings of the township board were not always accurately recorded; and the testimony justifies his conclusion that the quoted expression merely meant “a county engineer,” one who resided in the county. The undisputed testimony is that following the action taken by the township board the supervisor did employ plaintiffs to perform the services covered by items one and two of the bill of particulars, that the services were rendered and the charges therefor are reasonable.
But appellant also urges that in so far as the services consisted in relocating the meander line of Pine lake or in locating the lines of the concrete road on the west side of Pine lake, any attempt by the township to contract for such services was ultra vires. Appellant argues that the township was in no way concerned with the relocation of the meander line of Pine lake and that the concrete road was a county road over which the township had no control. In view of the undisputed facts about to be stated, we think appellant’s position is not tenable.
Por a considerable distance along the north shore of Pine lake there was an ordinary dirt highway, established by user. Various persons were erecting buildings along this north shore between the water line and the traveled portion of the highway. Town ship officers believed these buildings were encroaching upon the highway, but its course was so irregular and its location so uncertain, the fact as to encroachments could be determined only by a survey which would definitely locate the highway boundaries. Belocating the meander line of the lake had a material bearing on locating the highway; but inaccuracies in the original government survey discovered by plaintiffs rendered this effort impractical if not wholly useless. The survey along the concrete highway was to obtain a proper starting point in the survey of the dirt road which led off from the concrete in an easterly direction. The engineer testified it was necessary to have a “tie in” to some permanent object so the location of the highway boundaries could be reproduced in the future. There is no testimony that the work of the surveyors was not proper and essential to an accurate location of the road along the north shore of Pine lake.
Notwithstanding appellant’s contention that by statute (1 Comp.- Laws 1929, § 3937) the power to accomplish the result here sought is in the township highway commissioner, we think the members of the present township board cannot be heard to disavow the authority and action of their predecessors, of whom the highway commissioner was one. He was present and approved the action taken by the township board. By so doing he officially approved and authorized performance of the services. Plaintiffs having been permitted and induced to perform the services and the township having accepted the benefits thereof, it cannot, under the circumstances, escape its obligation to pay. The following cases are much to the point here involved: Coit v. City of Grand Rapids, 115 Mich. 493; Webb v. Township of Wakefield, 239 Mich. 521; American LaFrance & Foamite Industries, Inc., v. Village of Clifford, 267 Mich. 326.
There is no question concerning the power of the township board to contract for plaintiffs’ services covered by item three of the bill of particulars. Locating the north township line through Sylvan village was necessary because this line crossed diagonally through several lots of a subdivision. Buildings were erected on some of these lots. Exact information as to the location of the north township line was necessary to enable the supervisor to properly assess so much of the divided properties as was located within defendant township. "Without this information exact valuations could not be fixed. The auditor general’s department had advised the township supervisor that these divided properties had theretofore been improperly assessed. Legal advice of local counsel was taken and followed. The need and propriety of the survey is evident. But as pointed out by appellant, the township records disclose no official action by the township board authorizing the employment of plaintiffs. Plaintiffs in fact were employed by the township supervisor. Convincing testimony of those who at the time were members of the township board establishes beyond question that in fact the board did by proper action authorize the supervisor to have this survey made and the supervisor so informed plaintiffs at the time he employed them. The township records were not accurately kept and this action of the township board as well as other important items were omitted from the record of the township board proceedings. Plaintiffs have not sought to change the township records as made by the township clerk. Instead they assert the right to supplement the record. This they may do. Rubatt v. Township of Wakefield, 239 Mich. 536. We cannot agree with appellant that the testimony in the record does not disclose any action or authority by which the township is obligated to pay for plaintiffs’ services in surveying the township line through Sylvan village. The township board, presumably acting in good faith, found the survey necessary to enable township officials to properly discharge their public duties. Employment of plaintiffs for such survey was a legitimate exercise of authority vested in the township board.
Affirmed, with costs to appellees.
Nelson Sharpe, C. J., and Potter, Fead, Wiest, Butzel, Bushnell, and Edward M. Sharpe, JJ., concurred. | [
-8,
48,
-14,
-61,
-23,
23,
24,
-9,
28,
38,
45,
-21,
30,
21,
13,
-35,
-32,
-19,
13,
-4,
0,
-70,
55,
29,
-62,
-2,
17,
33,
-32,
33,
8,
-14,
-33,
29,
-14,
11,
23,
-8,
-9,
24,
-45,
3,
32,
-45,
37,
-5,
45,
4,
4,
-34,
13,
23,
1,
-10,
10,
-34,
6,
-41,
-36,
-23,
-27,
-7,
14,
43,
29,
4,
2,
17,
38,
-25,
-40,
49,
-9,
-22,
42,
-8,
-34,
26,
-19,
0,
-26,
-20,
40,
8,
-23,
-7,
-23,
-11,
12,
14,
-35,
40,
-35,
10,
23,
50,
-25,
-37,
-15,
-35,
-10,
72,
14,
16,
-36,
9,
-32,
-29,
18,
-17,
-13,
1,
15,
-33,
-24,
-39,
21,
-25,
94,
9,
11,
-2,
54,
6,
-25,
14,
31,
-12,
-59,
42,
23,
-22,
-4,
9,
-11,
4,
-19,
-26,
24,
49,
9,
-4,
8,
-17,
2,
-8,
-37,
0,
12,
-21,
-29,
-34,
67,
-1,
0,
-9,
25,
-62,
57,
-39,
53,
7,
-31,
0,
-42,
-18,
20,
36,
15,
5,
20,
5,
20,
-36,
0,
-36,
-1,
32,
1,
23,
7,
-24,
27,
5,
-43,
-40,
38,
-9,
16,
-24,
85,
28,
-39,
-52,
-65,
42,
-23,
56,
-31,
-31,
18,
-70,
25,
-14,
-24,
-9,
-5,
-69,
-29,
0,
-2,
-6,
-27,
-38,
-29,
8,
66,
4,
23,
-42,
58,
-21,
-9,
13,
-64,
5,
-54,
-9,
29,
-57,
10,
-29,
15,
5,
-49,
9,
24,
3,
32,
30,
8,
27,
2,
-23,
-20,
-11,
7,
-44,
-52,
44,
-19,
-26,
-45,
-26,
3,
-10,
10,
19,
-6,
-28,
7,
27,
-10,
48,
-29,
11,
19,
10,
-60,
15,
-22,
0,
38,
-15,
-45,
-38,
26,
-15,
17,
73,
-10,
-37,
-17,
36,
8,
46,
-66,
8,
31,
-1,
-19,
26,
0,
17,
-4,
33,
64,
-25,
-23,
-6,
-30,
15,
-29,
12,
50,
8,
-42,
18,
23,
38,
49,
23,
-13,
-10,
44,
20,
-47,
-15,
-10,
-28,
6,
-9,
-6,
19,
-5,
-21,
24,
3,
-8,
5,
19,
8,
38,
33,
14,
-27,
-19,
-57,
-15,
-40,
43,
34,
36,
20,
36,
10,
-20,
-36,
-8,
-24,
-14,
-4,
11,
20,
1,
28,
33,
-20,
-28,
36,
34,
48,
13,
-29,
-18,
4,
-21,
-42,
-1,
51,
13,
-4,
-24,
42,
-3,
-3,
-13,
35,
-22,
48,
-25,
-13,
-19,
9,
17,
-10,
0,
-30,
-22,
23,
-20,
-66,
-7,
59,
-19,
16,
1,
17,
-14,
-18,
14,
-2,
-10,
98,
-35,
-17,
13,
7,
3,
16,
-10,
6,
30,
-27,
-14,
4,
57,
20,
19,
47,
46,
42,
-11,
-43,
36,
-50,
19,
0,
20,
31,
-33,
2,
22,
-22,
34,
-8,
-60,
-13,
-23,
-8,
-59,
48,
26,
-9,
-22,
-21,
-50,
35,
0,
-7,
10,
45,
-23,
10,
-26,
-6,
42,
-47,
48,
-14,
-37,
-23,
-33,
-25,
-2,
-16,
-7,
1,
26,
15,
-32,
35,
-9,
7,
2,
4,
42,
-8,
11,
19,
44,
-24,
-53,
-34,
-66,
-49,
11,
16,
-2,
8,
26,
18,
-26,
19,
76,
-8,
-34,
5,
22,
5,
-2,
-5,
14,
0,
-31,
37,
-16,
-10,
-5,
17,
-10,
1,
48,
0,
-30,
-1,
15,
-4,
21,
-14,
1,
18,
-35,
-22,
10,
9,
-2,
-22,
18,
16,
13,
-54,
-14,
-6,
-29,
-41,
7,
14,
5,
-32,
4,
49,
12,
-9,
-9,
11,
-8,
16,
14,
-5,
33,
-17,
14,
-17,
-11,
-5,
-12,
-25,
47,
23,
-23,
-10,
3,
-22,
68,
27,
10,
-7,
44,
-69,
-9,
15,
31,
-47,
-25,
37,
-14,
-32,
-9,
40,
3,
5,
0,
-34,
-32,
22,
61,
-29,
36,
12,
-31,
6,
-25,
-40,
39,
4,
-33,
-3,
45,
-2,
49,
-55,
-30,
7,
-17,
17,
-73,
-8,
18,
-30,
0,
-31,
-8,
-6,
35,
29,
-44,
-17,
38,
1,
22,
-2,
14,
40,
-9,
16,
0,
11,
-46,
15,
-12,
14,
3,
-18,
39,
-37,
31,
14,
9,
2,
30,
-23,
-31,
-7,
-30,
-34,
-35,
9,
-17,
11,
-23,
40,
25,
-22,
-8,
14,
28,
-13,
20,
-24,
42,
-39,
-22,
22,
-26,
20,
33,
-12,
58,
-1,
-34,
-23,
-18,
8,
-28,
-91,
-14,
33,
-9,
32,
23,
31,
13,
-8,
6,
-26,
-32,
21,
2,
-31,
-21,
18,
-22,
26,
2,
-51,
0,
-6,
-31,
-6,
4,
-21,
43,
-1,
-32,
59,
42,
-33,
-13,
-8,
-16,
-30,
-12,
8,
-4,
58,
6,
27,
-15,
30,
30,
-43,
-51,
17,
-27,
-3,
0,
-41,
-12,
20,
-4,
53,
-9,
-12,
2,
-8,
41,
4,
-13,
-3,
46,
-16,
-40,
8,
56,
12,
35,
-7,
-32,
30,
-26,
20,
12,
18,
5,
-18,
2,
4,
-28,
4,
-2,
-6,
-41,
-28,
12,
-34,
-17,
-13,
-21,
15,
-27,
72,
-32,
-42,
25,
-27,
-47,
-18,
3,
18,
4,
22,
10,
-24,
-45,
-33,
-20,
-45,
26,
29,
-21,
0,
6,
1,
-19,
2,
87,
27,
43,
-1,
-3,
50,
12,
24,
-5,
0,
-62,
2,
28,
29,
16,
32,
4,
-41,
30,
-7,
-37,
27,
-5,
-34,
2,
2,
-15,
-12,
-33,
18,
56,
-25,
-21,
-6,
66,
10,
-56,
5,
28,
-27,
-7,
9,
-23,
34,
18,
-27,
-29,
-5,
-23,
-15,
-21,
-40,
23,
-16,
-57,
29,
7,
-34,
25,
22,
19,
1,
2,
-6,
20,
13,
-30,
4,
-13,
-9,
-24,
-51,
-3,
-17,
-18,
30,
-28,
5,
8,
-15,
-11,
-46,
-11,
3,
-39,
5,
46,
-43,
-9,
-17,
-23,
3,
30,
58,
-7,
21,
-11,
11,
-23,
-19,
-57,
0,
-69,
-28,
35,
14,
24,
0,
-4,
5,
-18,
-24,
-13,
47,
-31,
-30,
-16,
10,
-35,
-33,
-12,
-5,
16,
48,
3,
7,
28,
-34,
-27,
17,
-26,
36,
-38,
8,
-24,
-13,
28,
-11,
67,
24,
59,
-66,
-1,
-5,
12,
-16,
-29,
25,
11,
-6,
-25,
18,
0,
22,
26,
14,
37,
40,
-27,
-17,
-66,
2,
0,
-29,
-4,
28,
25,
42,
-28,
-30,
3,
-22,
17,
35,
-11,
6,
10,
-17,
8,
-48,
22,
69,
13,
6,
18,
-79,
39,
58,
26,
-30,
1,
-27,
-33,
-2,
30,
-9,
41,
-23,
4,
-13,
-5,
-40,
8,
-29,
61,
-16,
-3,
7,
29,
-36,
36,
2,
39,
27,
28,
58,
65,
15,
14,
10,
-22,
-25,
-44,
-9,
26,
-14,
-5,
28
] |
North, J.
The issue presented by this appeal is this: Is the appointive office of clerk for the two justices of the peace of the city of Hamtramck included in the unclassified section of the civil service amendment to the city’s charter? Plaintiff contends that the office here involved is not included in the unclassified service and that as a result that office, now occupied by him, is under civil service. The circuit judge so held and defendants have appealed.
By a charter amendment, effective July 1, 1943, the city of Hamtramck adopted a system of civil service. On that date, and for a number of years prior thereto, plaintiff occupied by appointment the office of clerk for the two justices of peace of the city. Plaintiff’s term of office under his last appointment expired July 1,1946. It is his claim that under ■the July 1,1943, civil service amendment he was and is entitled to continue in his official position subject to removal only as provided in the civil service amendment to the city charter.
Defendants take the position that the office held by plaintiff is within the unclassified service and therefore not under civil service. Acting under what was claimed to be applicable charter authority, the city council in July, 1946, appointed defendant Chester Pierce “as chief court clerk in the Hamtramck justice courts.” Plaintiff promptly filed his bill of complaint herein charging that defendants, or certain of them, “are in a conspiracy to prevent the plaintiff from continuing to assert and exercise the duties of his office, to-wit: Chief clerk of the justice court of the city of Hamtramck, and that they will take acts against him individually, severally or collectively and/or with other persons in an attempt to interfere with the proper exercise of the plaintiff’s duties and responsibilities as chief clerk of the justice court, unless they are restrained from so doing by an order and injunction of this court.” Issue was joined, the material facts agreed upon at a pretrial hearing, and after considering oral arguments and briefs, the trial court entered a decree which in part reads:
“It is further ordered, adjudged and decreed that the position of clerk of the justice court for the city of Hamtramck falls within the classified service and is subject to the provisions of the civil service amendment.
“It is further ordered, adjudged and decreed that the action of the council of the city of Hamtramck in attempting to appoint some other person than the plaintiff as clerk of the justice court of the city of Hamtramck was and is a nullity and of no force and effect, and
“It is further ordered, adjudged and decreed that the plaintiff, Joseph Lewicki, was and is now the clerk of the justice court for the city of Hamtramck, and is entitled to his regular and proper emolument for his services.”
By the charter amendment it was provided:
“Sec. 10: The civil service of the city of Hamtramck is hereby divided into three classes, namely:
“A. The unclassified service.
“B. The police and fire departments, and police signal and fire alarm system.
“C. The classified service.”
Class B is not here involved. The issue is whether the office of clerk of the Hamtramck justice courts is included in class A, i. e.: The unclassified service ; or in class C, i. e.: The classified service. The respective charter provisions are,as follows:
“The unclassified service shall comprise and include :
“a. Officers elected by the people; b. City attorney and assistant city attorneys; c. city assessor; d. city controller; e. city engineer; f. superintendent of public works; g. city physicians; h. director of public safety; i. director of public welfare; j. board of review; k. superintendent of buildings; 1. hospital board; m. library board; n. officers and employees of such departments of the city as may be exempt from the provisions of civil service under the general laws of the State; o. registrars, inspectors, supervisors, clerks, and other assistants of the election commission; p. the secretary of each board or commission created by the charter and. for ordinances; q. the mayor’s secretary; r. head or chief deputy of the elective and appointive offices; s. city dentist; t. health officer and doctors in said department; u. housing commissioners; v. sealer of weights and measures. * * *
“The classified service shall comprise and include all other officers, clerks and employees of all offices, departments and commissions of the city, whether now existing or hereafter created, except these hereinbefore set forth in this section 10 as being in the unclassified service, police department, fire departments, or police signal and fire alarm system.”
Defendants assert that the office of clerk is included in the above subdivision “r”, of class A, which reads: “r. Head or chief deputy of the elective and appointive offices.” Plaintiff contends to the contrary.
We think that, as plaintiff contends, this clerkship must be considered as a part of the judicial branch of the Hamtramck municipal government, which is headed by two justices of the peace. The duties of such judicial officers cannot be delegated to a deputy. Hence plaintiff is not a head deputy or a chief deputy of the justices, who are elected officers. Instead plaintiff is a clerk for the two justices. As to this office, under chapter 21 of the city charter, entitled “Justice Courts,” section 15 in part provides: “The city council shall provide a clerk for said justices of the peace.”
A reading of the provisions in the civil service amendment for “the unclassified service,” above quoted, clearly indicates the specific offices thereby excluded from civil service; such, for example, as city attorney, assistant city attorneys, city assessor, city controller, city engineer, superintendent of public works, city physicians, et cetera. We conclude it follows that had it been intended that this clerkship should be excluded from civil service it would have been specifically so provided in the charter amendment adopting civil service, as was done in other instances in the manner just above noted.
Further, our consideration of subdivision “r” of the provision for unclassified service, brings the conclusion that it applies only to “deputies,” either “head deputies” or “chief deputies” in any of the municipal offices of Hamtramck. As above noted, plaintiff is not a “deputy” and, therefore, the office he occupies is not included under subdivision “r” in the unclassified service. It follows, by reason of the' charter provision which reads: “the classified service shall comprise and include all other officers, clerks and employees of all offices,” et cetera, that plaintiff is under civil service.
Appointment to the office here involved is not controlled by Act No. 171, § 1, Pub. Acts 1911 (3 Comp. Laws 1929, § 16493 [Stat. Ann. § 27.3901]). Instead, Hamtramck being a home-rule city, such appointment is controlled by the city charter amendment adopted under the more recent provisions of the home-rule act, which act authorized the city to provide in its charter “for a system of civil service.” See 1 Comp. Laws 1929, § 2239, as amended by Act No. 283, Pub. Acts 1941 (Comp. Laws Supp. 1945, § 2239, Stat. Ann. 1947 Cum. Supp. § 5.2082).
Careful consideration has been given to other reasons and arguments, pro and con, urged by the respective parties, but we find nothing in them persuasively inconsistent with our conclusion as above indicated. The decree entered in the circuit court is affirmed, with costs of both courts to appellee.
Bushnell, C. J., and Sharpe, Boyles, Reid, Dethmers, Butzel, and Carr, JJ., concurred.
Section 14 of the civil service amendment provides:
“All officers and employees of the city * * * at the time this section shall take effect, and who shall have been such for more than one year prior thereto, whose positions this section includes in the classified civil service shall hold their positions without examination until discharged.” | [
27,
-11,
2,
18,
-45,
-21,
-61,
-58,
-12,
42,
10,
13,
9,
56,
-4,
-31,
-33,
8,
25,
-47,
-51,
-17,
-1,
-32,
-31,
9,
2,
13,
-82,
36,
10,
6,
-23,
-24,
-21,
29,
49,
7,
41,
3,
-14,
-28,
21,
-46,
-21,
4,
49,
33,
12,
-21,
-26,
69,
-16,
7,
-25,
20,
12,
-23,
30,
25,
-14,
84,
-25,
-19,
-6,
20,
6,
45,
38,
-71,
-23,
-1,
-13,
-21,
25,
11,
-7,
-41,
22,
19,
-13,
4,
-1,
-43,
18,
79,
22,
-34,
73,
-4,
-20,
0,
-59,
8,
-49,
35,
-25,
-16,
18,
8,
0,
-41,
-26,
46,
6,
14,
-45,
-9,
32,
-20,
30,
52,
38,
-13,
29,
-17,
-11,
14,
38,
22,
19,
6,
57,
15,
24,
4,
-50,
23,
-1,
6,
-5,
-3,
23,
-22,
-19,
37,
-3,
37,
8,
0,
2,
48,
-28,
3,
-38,
-35,
-47,
7,
-27,
-40,
50,
-8,
25,
-15,
-80,
11,
-22,
-30,
25,
-32,
-8,
-36,
16,
-82,
17,
7,
-45,
29,
-9,
30,
-7,
0,
-5,
33,
-20,
-50,
-39,
26,
-28,
-25,
0,
-5,
-11,
-48,
-7,
-23,
-34,
-75,
22,
-4,
10,
-33,
-14,
-56,
41,
14,
-42,
12,
-6,
28,
-11,
23,
-48,
12,
-16,
0,
17,
-29,
-7,
44,
-21,
-33,
43,
9,
9,
11,
6,
-29,
-8,
-22,
10,
28,
31,
-19,
-29,
-4,
-11,
-8,
10,
14,
-13,
-20,
-8,
17,
-7,
12,
34,
14,
23,
-17,
-76,
31,
17,
26,
-6,
-32,
7,
10,
8,
56,
-10,
-15,
-16,
20,
16,
-16,
-5,
-25,
9,
-8,
30,
-8,
21,
-30,
-46,
-16,
74,
34,
-26,
-11,
-34,
32,
47,
-57,
-28,
11,
-7,
-56,
33,
38,
-10,
-3,
-27,
-12,
-23,
-27,
-14,
-12,
24,
-20,
-67,
33,
-34,
58,
8,
-2,
31,
36,
26,
9,
-35,
26,
20,
-7,
15,
-38,
-16,
-27,
49,
38,
87,
-3,
6,
-17,
3,
-28,
22,
33,
-8,
-49,
-57,
2,
-17,
50,
27,
25,
-21,
59,
6,
-7,
53,
-30,
-41,
-40,
15,
-11,
14,
30,
9,
-19,
-36,
-6,
13,
-3,
57,
-13,
7,
29,
0,
-2,
31,
6,
14,
49,
-13,
13,
14,
-54,
26,
-6,
16,
-11,
-14,
-63,
-6,
-50,
0,
34,
12,
40,
-8,
-17,
-27,
12,
-17,
-21,
9,
18,
-25,
47,
9,
-84,
-17,
-11,
13,
-18,
-20,
-21,
20,
-32,
0,
18,
-21,
5,
-8,
61,
13,
22,
-25,
-1,
14,
-13,
-19,
29,
-64,
-11,
-70,
15,
19,
101,
19,
35,
20,
19,
36,
-9,
9,
-3,
26,
16,
-1,
30,
3,
-47,
32,
10,
9,
38,
41,
13,
-44,
-27,
-1,
-28,
33,
-25,
-24,
-14,
-9,
-21,
-17,
13,
32,
2,
-56,
-13,
11,
-14,
-38,
38,
-14,
-24,
13,
7,
-20,
-33,
46,
31,
32,
-28,
-36,
-14,
8,
-31,
-27,
15,
-94,
31,
-27,
36,
-36,
-30,
-23,
-24,
-57,
-4,
-11,
-35,
39,
-30,
-15,
-27,
-16,
57,
-34,
-31,
9,
-1,
-38,
31,
-30,
33,
-39,
9,
50,
40,
-23,
-47,
-38,
41,
40,
-15,
-14,
6,
-34,
-48,
-18,
-7,
15,
-11,
-52,
0,
44,
62,
30,
29,
2,
19,
-5,
-31,
31,
14,
21,
8,
15,
11,
13,
-9,
40,
29,
17,
-26,
-19,
-20,
15,
27,
37,
-22,
-21,
0,
5,
-2,
15,
18,
-14,
5,
19,
-9,
-4,
-12,
7,
-16,
-50,
-34,
-32,
16,
-18,
17,
48,
15,
32,
12,
50,
-3,
-13,
12,
-26,
-18,
-4,
-3,
7,
-26,
-21,
0,
43,
-20,
-23,
-1,
38,
-30,
14,
-22,
39,
-22,
27,
-31,
45,
-56,
32,
12,
2,
-15,
-107,
-23,
6,
13,
4,
33,
43,
11,
21,
23,
-21,
37,
-12,
20,
19,
-2,
19,
-41,
-21,
0,
21,
-9,
-74,
-35,
-17,
-32,
34,
-25,
-37,
-2,
24,
29,
-43,
-78,
4,
-37,
9,
-37,
34,
-35,
8,
-26,
45,
9,
3,
54,
4,
-7,
20,
-33,
11,
-48,
-20,
31,
-25,
21,
-15,
41,
34,
26,
16,
-29,
31,
-14,
6,
2,
35,
-45,
-46,
-18,
0,
28,
28,
22,
20,
0,
-5,
-30,
-1,
-38,
12,
33,
-44,
-37,
15,
-17,
-13,
-33,
16,
48,
1,
9,
44,
-26,
-23,
48,
-20,
-31,
0,
30,
-4,
-1,
48,
-19,
32,
-17,
15,
29,
-31,
-58,
2,
32,
-2,
17,
32,
-4,
-11,
-21,
-46,
-28,
2,
37,
14,
-20,
32,
38,
24,
76,
27,
5,
-38,
2,
28,
26,
-8,
-28,
-6,
-44,
24,
28,
19,
-78,
0,
-8,
25,
-9,
-24,
-6,
-14,
32,
-25,
21,
43,
25,
77,
-17,
-50,
55,
2,
41,
-45,
-40,
67,
0,
-14,
-9,
-4,
24,
-15,
9,
-7,
0,
-18,
-28,
34,
-6,
-6,
20,
26,
-3,
8,
-7,
42,
-23,
-12,
-42,
65,
14,
5,
4,
-11,
-12,
-16,
-13,
20,
-15,
-45,
-20,
2,
-64,
-22,
-20,
-20,
10,
13,
22,
2,
9,
-7,
33,
13,
5,
-23,
33,
-43,
63,
1,
31,
-11,
41,
-13,
-24,
-22,
13,
20,
41,
-15,
-42,
9,
-23,
42,
6,
-16,
-32,
12,
22,
-17,
46,
-3,
31,
44,
29,
8,
-10,
-2,
15,
45,
32,
49,
-46,
6,
-22,
-44,
21,
-7,
15,
12,
-14,
-28,
60,
-21,
-16,
-9,
-57,
31,
-51,
-10,
-67,
40,
29,
-1,
-26,
-27,
27,
-82,
-57,
49,
-41,
24,
23,
10,
-9,
19,
19,
21,
-6,
8,
-70,
-61,
31,
-3,
-38,
10,
28,
30,
10,
19,
14,
15,
23,
19,
38,
-8,
-9,
26,
22,
-46,
2,
-3,
0,
16,
-39,
-43,
-27,
-7,
-1,
-45,
17,
43,
12,
-12,
-58,
23,
-25,
-83,
23,
33,
-11,
11,
-40,
16,
3,
-4,
-23,
30,
20,
14,
49,
65,
-55,
55,
18,
44,
6,
15,
5,
18,
1,
-48,
-21,
-28,
-22,
-18,
18,
-36,
-6,
10,
-45,
-5,
-27,
29,
49,
-15,
11,
-34,
-34,
-32,
-32,
-48,
2,
42,
42,
11,
4,
7,
-16,
-21,
15,
40,
-56,
41,
-2,
-7,
-22,
-56,
17,
0,
38,
18,
-15,
12,
40,
-32,
-9,
15,
9,
-56,
36,
58,
-12,
7,
-25,
-38,
-67,
-28,
0,
-12,
-4,
71,
27,
8,
0,
-28,
-1,
13,
0,
-72,
16,
35,
7,
31,
21,
-24,
34,
31,
-33,
-42,
29,
2,
35,
-56,
-28
] |
Fead, J.
Plaintiffs had decree quieting title by adverse possession. The testimony was not as certain, in some respects, as it could have been and, as the conveyances described the premises by metes and bounds and no maps were presented, some facts must be stated rather indefinitely.
John H. Carney owned a farm, government lot No. 1, touching the south arm of Pine Lake (Lake Charlevoix) in Charlevoix county. In 1896 he conveyed to David Ward of Detroit, for $500, a strip along the lake shore, by ordinary warranty deed, describing the land by two metes and bounds descriptions, north and south respectively of a quarter line road. The property is also intersected by the East Jordan and Charlevoix highway running northwesterly. This highway once ran along the water’s edge but (time not disclosed) was later rebuilt some distance (not shown) from the shore.
Ward was a lumberman and purchased for railroad and docking purposes but did not carry out his plans. He died. In 1901 his representatives conveyed part of the premises to • the Detroit & Charlevoix Railroad Company, evidently a Ward enterprise. In 1907 the railroad company executed conveyance of some premises back to the trustees of Ward’s will and, in 1916, conveyed to the Michigan Central Railroad Company all its land in Charlevoix county, probably including a right of way on this land. In 1912 the Ward trustees conveyed to the Ward heirs and in 1924 the latter conveyed to de fendant Loveday, who purchased in reliance on the records and without notice of adverse claims. Defendant railroad company has disclaimed interest.
Since 1896, lot 1 has been in possession of the Carney family in the same manner as before the conveyance. Probably about 1906 to 1908 railroad tracks were laid on the parcel south of the quarter section road and they remained until 1918 or later, when the rails and ties were removed. We do not know how long the tracks were in actual use. The Carneys made no protest or claim of title when the tracks were built, used or taken up. In fact they never gave notice or made claim of title to Ward or any of his successors in interest until 1926 or 1927, when a controversy arose with Loveday. Nor does the testimony indicate that they made claim of title to anyone nor that Ward or his successors had knowledge, or occasion for knowledge or notice, that they claimed title.
There was no evidence that the Carneys had actual possession of the premises south of the quarter line road. Its use for railroad purposes is conclusive that they never had exclusive possession and, the use being without protest or claim of title by them, that they never had adverse possession. Their claim of title must be confined to the parcel north of the road.
John Carney died in 1911. In 1912 Mark Carney fenced the north parcel, built a house and dug a well on it. He lived there about seven years, removed the house and has abandoned the well but has used the premises for pasturing purposes since. His fence ran along the west side of the East Jordan road and when the road was moved back from the shore he moved the fence.
The Carneys paid taxes on lot 1, except when exempted to Mrs. Carney as soldier’s widow’s home stead. In assessing lot 1 the premises at bar were not excepted by the supervisor. On .motion for rehearing defendants produced records to show that the premises at bar had also been assessed separately for many years and the taxes paid by the "Ward estate, but the rehearing was denied. Defendants ask consideration of such evidence but, in view of our disposition of the case, we need not pass upon the request.
The case must be disposed of under the rule that, before possession of a vendor becomes adverse to the title of his vendee, the vendor shall explicitly disclaim the right of the vendee and notoriously assert right in himself. Michigan Air Line R. Co. v. Hustina, 255 Mich. 418; Hogan v. Egyptian Portland Cement Co., 257 Mich. 381.
Decree reversed and bill dismissed, with costs.
Nelson Sharpe, C. J., and Potter, North, Wiest, Btjtzel, Bushnell, and Edward M. Sharpe, JJ., concurred. | [
5,
59,
53,
-28,
-4,
27,
46,
52,
7,
-30,
-40,
-39,
20,
56,
-2,
15,
-2,
21,
-12,
4,
38,
-32,
0,
-17,
-68,
-7,
29,
2,
-25,
7,
6,
-1,
-65,
20,
20,
-11,
14,
-48,
36,
-5,
-11,
28,
-35,
-11,
35,
-5,
19,
-5,
14,
-20,
13,
15,
32,
-12,
0,
-14,
-21,
-23,
-9,
10,
9,
-45,
-11,
9,
0,
31,
19,
0,
-13,
-13,
23,
-8,
-3,
39,
26,
-14,
7,
23,
1,
-39,
-4,
36,
53,
-37,
2,
-25,
-13,
-11,
0,
11,
-37,
-15,
-32,
21,
39,
4,
7,
-25,
-10,
0,
-21,
37,
0,
0,
-12,
-17,
-21,
-10,
-33,
-20,
-20,
29,
29,
-21,
-11,
-39,
27,
-47,
69,
30,
-2,
-81,
20,
-15,
-17,
36,
-10,
-7,
-13,
6,
35,
-29,
-2,
43,
50,
18,
-24,
-18,
5,
-4,
-4,
29,
15,
-69,
-31,
-17,
-19,
0,
39,
-27,
-31,
43,
14,
-32,
-5,
52,
44,
-25,
36,
1,
21,
9,
16,
-24,
-94,
-10,
14,
-28,
2,
18,
18,
-16,
29,
-22,
31,
12,
-7,
64,
-20,
24,
0,
24,
22,
-16,
-42,
-46,
42,
-7,
-31,
6,
42,
-8,
-11,
-6,
-25,
60,
-25,
-2,
-4,
26,
3,
-1,
-38,
8,
-29,
-8,
32,
-11,
15,
56,
-47,
-4,
-13,
-43,
0,
8,
-6,
8,
18,
-51,
50,
28,
-17,
30,
-5,
-36,
21,
7,
47,
-1,
-5,
14,
-26,
20,
-64,
-22,
10,
4,
8,
23,
23,
-1,
3,
-29,
-20,
25,
5,
-48,
-5,
68,
-38,
-21,
-59,
7,
-14,
1,
22,
15,
-7,
-37,
50,
63,
-12,
0,
11,
2,
-15,
-18,
-4,
6,
-1,
-39,
9,
-24,
-26,
-11,
41,
2,
-18,
64,
-2,
-9,
30,
77,
-13,
21,
33,
0,
-3,
46,
-2,
-14,
-36,
-23,
18,
-6,
6,
-29,
13,
-10,
-25,
53,
-56,
-13,
-10,
24,
-22,
0,
66,
13,
9,
51,
5,
7,
8,
24,
27,
-66,
89,
-34,
-29,
-2,
-31,
-19,
1,
26,
39,
15,
-40,
5,
29,
14,
54,
35,
-40,
-10,
-8,
-34,
17,
24,
14,
24,
49,
-23,
21,
-22,
-6,
-40,
0,
0,
-9,
1,
-18,
-33,
-49,
-10,
54,
-12,
11,
60,
46,
-41,
30,
26,
10,
17,
-52,
-38,
-5,
33,
27,
47,
-32,
45,
12,
-11,
-15,
-18,
-9,
42,
-3,
-12,
25,
66,
40,
-7,
-19,
-17,
-33,
64,
-38,
-46,
0,
36,
31,
-42,
20,
56,
-61,
-12,
12,
9,
-12,
21,
-68,
0,
57,
27,
30,
-20,
1,
-15,
6,
-31,
-7,
-25,
26,
-4,
29,
26,
5,
47,
-2,
-63,
26,
18,
42,
19,
-28,
46,
-40,
7,
18,
-1,
15,
31,
-51,
-9,
-21,
10,
-7,
36,
67,
-13,
-17,
-19,
-52,
18,
22,
-33,
25,
49,
-19,
31,
-38,
45,
32,
-35,
63,
-19,
-17,
-21,
32,
23,
-30,
-18,
-4,
-18,
15,
31,
20,
40,
21,
0,
-46,
-17,
0,
11,
-18,
17,
8,
-4,
-11,
9,
-55,
-35,
-83,
-6,
20,
3,
12,
7,
20,
21,
-20,
-30,
1,
10,
23,
21,
20,
-11,
-6,
22,
17,
52,
14,
-39,
0,
27,
15,
-22,
-5,
11,
0,
56,
4,
-21,
22,
11,
10,
-9,
-7,
-42,
25,
23,
31,
-21,
27,
-15,
11,
-1,
-46,
-9,
-9,
-10,
6,
22,
12,
-5,
22,
14,
15,
-22,
-30,
-25,
0,
-28,
27,
-1,
-21,
-6,
-4,
-10,
-46,
6,
-5,
-33,
-5,
-3,
-33,
-18,
53,
-51,
40,
-4,
28,
-69,
20,
-53,
-52,
-13,
35,
-56,
-6,
22,
-35,
-42,
-26,
42,
-56,
-29,
13,
-15,
-5,
40,
31,
17,
-27,
15,
-49,
-11,
-36,
-30,
-16,
6,
-12,
55,
54,
-6,
56,
-27,
-43,
10,
-11,
27,
-15,
-15,
17,
12,
0,
-20,
25,
11,
23,
41,
-13,
-23,
21,
56,
-33,
-34,
-3,
-40,
-5,
-7,
0,
-21,
-19,
44,
8,
36,
-37,
40,
11,
-5,
-14,
11,
20,
-26,
-24,
-43,
-44,
-17,
23,
-2,
-51,
6,
-40,
-23,
-48,
29,
-7,
30,
-20,
13,
7,
4,
-5,
0,
77,
-6,
-9,
14,
-12,
-31,
-13,
-6,
46,
4,
21,
-24,
-1,
1,
-44,
-38,
6,
13,
41,
50,
-5,
22,
-19,
-8,
21,
25,
-5,
-6,
-13,
43,
-29,
-14,
-21,
22,
-26,
4,
-46,
3,
11,
-33,
0,
25,
22,
41,
-64,
4,
47,
-43,
-25,
-20,
55,
-5,
9,
3,
27,
67,
11,
6,
-17,
-3,
12,
-11,
-23,
-38,
-20,
-23,
-27,
-25,
-2,
38,
4,
16,
21,
-30,
-14,
-5,
35,
-24,
-38,
-44,
-37,
-42,
-21,
-18,
3,
-26,
42,
16,
-13,
13,
-3,
-32,
7,
43,
-6,
-51,
3,
20,
-16,
-43,
2,
-33,
-11,
-38,
7,
-42,
30,
-28,
25,
20,
-23,
-11,
-46,
4,
-3,
-2,
33,
26,
12,
4,
-6,
-23,
24,
1,
-30,
-34,
-11,
-39,
0,
-5,
-24,
0,
-23,
5,
-33,
-22,
24,
-52,
0,
1,
-17,
8,
-61,
-13,
-2,
-23,
-57,
23,
15,
-2,
14,
-44,
-26,
-49,
-23,
-11,
8,
63,
-2,
6,
-6,
24,
38,
-37,
-43,
-9,
71,
32,
-3,
-2,
40,
-18,
-25,
47,
6,
-24,
14,
25,
-10,
39,
0,
-18,
-23,
-42,
-24,
-42,
-26,
29,
29,
19,
-51,
-14,
-34,
-5,
0,
-11,
20,
8,
2,
-26,
12,
-2,
-39,
-6,
-18,
1,
-33,
-64,
-1,
23,
-15,
14,
0,
34,
-6,
-49,
15,
-25,
-29,
21,
50,
-31,
10,
43,
-37,
10,
15,
-10,
-21,
5,
12,
-16,
-21,
-10,
-17,
7,
40,
-12,
-13,
4,
16,
0,
-25,
0,
-25,
-12,
13,
4,
39,
-8,
-25,
-27,
-10,
-22,
-77,
-20,
-23,
1,
16,
45,
34,
-4,
-36,
-2,
-49,
-5,
-58,
3,
15,
50,
-39,
19,
15,
-30,
3,
27,
35,
-49,
0,
-27,
0,
8,
-23,
49,
-31,
23,
15,
-2,
-19,
30,
4,
12,
25,
57,
-23,
-18,
-28,
-19,
-28,
-13,
59,
56,
-11,
-4,
21,
-40,
-22,
39,
9,
6,
-46,
12,
4,
27,
44,
7,
35,
41,
45,
-4,
-6,
-7,
-22,
30,
18,
-25,
5,
-61,
-67,
-14,
-3,
-10,
13,
3,
-13,
-5,
6,
14,
-32,
-6,
3,
-2,
16,
15,
40,
5,
20,
38,
16,
-5,
-77,
-39,
48,
60,
5,
39,
6,
6,
2,
20,
11,
1,
19,
26
] |
Potter, J.
Defendant was arrested and informed against, charged in the first connt of the information with assault with intent to do great bodily harm, less than the crime of murder; and in the second count with going armed with a dangerous weapon, to-wit, a chain blackjack, contrary to the form of the statute, etc. On trial defendant was convicted under the second count in the information and on appeal assigns 113 errors. These may be grquped under a few heads.
It is claimed the trial court excluded questions to certain jurors which might have been a proper ground for peremptory challenge. The trial judge must be allowed to place some limit upon the extent of such examination. Ford v. Cheever, 113 Mich. 440.
(a) A large discretion is vested in the trial court as to the scope of examination of jurors on their voir dire.
(b) Even though the trial court improperly and erroneously restricted or extended the examination of jurors prior to their being sworn to try the case, such error is waived if plaintiff in error fails to exhaust his peremptory challenges. William R. Roach & Co. v. Blair, 190 Mich. 11; Link v. Fahey, 200 Mich. 308; Webster v. Stewart, 210 Mich. 13.
(c) If the objecting party afterwards expresses himself as satisfied with the jury, he thereby waives the error. Snyder v. Mathison, 196 Mich. 378.
(d) Though this case is here on appeal, it must be considered and disposed of the same as if it were here under writ of error, the issuance of which is an exercise of the original jurisdiction of this court and under which the burden of establishing error is on the party who claims it.
We cannot consider these assignments of error for the reason it does not appear the defendant was in any way prejudiced thereby. There is no showing defendant exhausted his peremptory challenges and no showing he was not satisfied with the jury as sworn. Ford v. Cheever, supra.
It is claimed a verdict for defendant should have been directed. There was direct evidence of defendant’s guilt. The credibility of the witnesses testifying thereto and the weight of their testimony were for the jury.
Defendant asked that the names of eyewitnesses to the assault be indorsed on the information. This motion was supported by affidavit. It is claimed the failure of the court to order these names indorsed constitutes reversible error. Defendant was acquitted on the first count of the information, that is, of assault with intent to do great bodily harm less than the crime of murder, and it does not, therefore, appear defendant was prejudiced by the action of the court.
Defendant contends the information filed against him should have been quashed for the reason that it includes separate and distinct offenses arising out of different transactions and supported by different testimony, and these cannot be charged in the same information.
“The true and only just rule as regards the joinder of counts in an information or indictment seems to be, if the different counts are drawn and used with a view to one and the same transaction, so that one of them, upon the trial, may be found to meet the evidence, the court will not interfere with the proceeding, as such an object is a legitimate one. It is a proceeding calculated to promote justice, and cannot confuse or prejudice the defense of the ac- eased. Bat when the object and purpose is apparent to prosecute the respondent, and such is the logical effect, for separate felonies by means of one information or indictment, the court will not permit it to be done. The prosecutor has no right to do this, as its injustice and prejudice to the accused overbalance all possible benefits to be derived to the public from such a practice.” People v. Aikin, 66 Mich. 460, 470 (11 Am. St. Bep. 512).
This rule does not apply where the information charges a greater offense which necessarily includes a lesser. Under such circumstances a defendant may be convicted of the lesser offense though the same is not charged in the information. People v. Prague, 72 Mich. 178.
“The reasons are that the offense springs from the same transaction, and is supported by the same class of testimony.”’ People v. Prague, supra.
Nor does this rule apply to different offenses, charged in separate counts, growing out of the same transaction and covered by the same testimony. In such cases the court will not quash the information nor compel an election between counts. People v. Sweeney, 55 Mich. 586; People v. McDowell, 63 Mich. 229; People v. Prague, supra; People v. Summers, 115 Mich. 537; People v. Durham, 170 Mich. 598; People v. Warner, 201 Mich. 547; People v. Hatfield, 234 Mich. 574; People v. Lewis, 264 Mich. 83.
The applicable statute provides:
“No indictment shall be quashed, set aside or dismissed for any one or more of the following defects: (first) That there is a misjoinder of the parties accused; (second) That there is a misjoinder of the offenses charged in the indictment, or duplicity therein; (third) That any uncertainty exists there in. If the court he of the opinion that the first and second defects or either of them exist in any indictment, it may sever such indictment into separate indictments or informations or into separate counts as shall be proper. If the court be of the opinion that the third defect exists in any indictment, it may order that the indictment be amended to cure such defect.” 3 Comp. Laws 1929, §17289.
There was no error in the court refusing to quash the information or to compel an election between counts by the people.
Defendant testified he did not have a chain blackjack prior to the commission of the alleged offense. The people called certain rebuttal witnesses who testified defendant had a chain blackjack in his possession on prior occasions. Defendant sought to impeach these rebuttal witnesses by showing by other witnesses their reputation for truth and veracity was bad and they should not be believed under oath. This proffered testimony was excluded by the court.
“The purpose of any inquiry into the character of a witness is to enable the jury to determine whether he is to be believed on oath. Evidence of his reputation would be irrelevant for any other purpose. And a reputation which would not affect a witness so far as to touch his credibility under oath, could have no proper influence. * * *
“The reason given is that, unless the impeaching witness is held to showing the extent to which an evil reputation has affected a person’s credit, the jury cannot accurately tell what the witness means to express by stating that such reputation is good or bad, and can have no guide in weighing his testimony. And since it has become settled that they are not bound to disregard a witness entirely, even if he falsifies in some matters, it becomes still more im portant to know the extent to which the opinion in his neighborhood has touched him.” Hamilton v. People, 29 Mich. 173, 185, 186.
In the case above, the court reviewed the English authorities, and textbooks in common use, and came to the conclusion indicated. This rule has not since been departed from in this State. It was prejudicial error not to permit this impeachment.
It is alleged the court was in error in permitting witnesses to be impeached upon a collateral matter. Defendant was cross-examined’ in relation to his conduct on an occasion similar to that which gave rise to the offense charged in the information, at another time, in another county, and on a different occasion.
“In any criminal case where the defendant’s motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant.” 3 Comp. Laws 1929, § 17320.
The object of the statute above quoted was to make testimony relevant which might otherwise not be so; to broaden the scope of inquiry as to similar transactions; to make relevant evidence of transactions which in the absence of the statute would not be relevant. Ordinarily a witness may not be impeached upon questions relating to a separate and distinct offense at another time and place. A witness may not he impeached upon a collateral issue. Mills v. Warner, 167 Mich. 619. But the purpose and object of the statute above quoted was to do away with the rule as to proof of other offenses and permit the introduction of such testimony even though it might show or tend to show the commission of another prior or subsequent offense by defendant.
At common law the names of witnesses were not required to be indorsed on an indictment for any purpose connected with the trial. Witnesses before a grand jury were usually sworn in open court before being sent before the grand jury and a list of such witnesses was indorsed on the back of the proposed indictment as drawn and laid before the grand jury. This was considered necessary in order that the grand jury might know what witnesses to call and what witnesses had been sworn, and that the officer whose duty it was to swear the witnesses might know who were to be called and sworn and that he might certify to their having been sworn. Hill v. People, 26 Mich. 496.
When informations were substituted for indictments by Act No. 138, Laws of 1859, it was provided the provisions of Act No. 77, Laws of 1855, relative to indictments should apply to informations. In-formations were required to be filed by the prosecuting attorney who was directed to indorse thereon the names of witnesses known to him at the time of filing the same. This act with little modification, now stands as 3 Comp. Laws 1929, § 17254, as follows :
“All informations shall be filed during term in the court having jurisdiction of the offense specified therein, after the proper return is filed by the ex amining magistrate by the prosecuting attorney of the county as informant; he shall subscribe his name thereto,, and indorse thereon the names of the witnesses known to him at the time of filing the same. Names of other witnesses may be indorsed before or during the trial by leave of the court and upon such conditions as the court shall determine.”
“While there are some good reasons to require the indorsement of the names of such witnesses as are known to the prosecuting attorney prior to the commencement of the trial, and which he then expected to have sworn, we can discover no reason founded on justice or common sense, for requiring the indorsement of such as the prosecutor, during the progress of the trial, shall happen to discover to be important witnesses, or for the exclusion of such witnesses upon such ground. And we think it would be exceedingly pernicious in the administration of criminal law, to recognize such an objection. Should a criminal go unpunished because all the evidence of his guilt has not come to the knowledge of the prosecuting attorney before the commencement of the trial, when it is always the interest of criminals to conceal all knowledge of this kind, and when the guilt of the prisoner can be proved beyond doubt, by evidence which the prosecuting attorney has discovered during the progress of the trial?
“This would be a new feature in the administration of the criminal law, which no court ought ever to adopt without the express requirement of the legislature, and which we cannot suppose any intelligent .legislature will be likely to adopt, with any reference to an honest administration of justice.” Hill v. People, supra, 499.
The statute has been frequently before the court. It is mandatory that the prosecuting attorney indorse on the information the names of the witnesses known to him at the time of filing the same. The statute grants to defendant substantial rights; to be informed of the nature of the accusation against bim and to have the names of the witnesses who are to be produced in order that he may properly prepare for trial by knowing something of the history, antecedents and character of the witnesses who are-to be produced.
“The object of this is not merely to advise a respondent what witnesses will be produced on the main charge. It is to guard him against the production of persons who are unknown, and whose character he should have an opportunity to canvass.” People v. Quick, 58 Mich. 321.
“The right of the defendant to know the witnesses to be called against him is a substantial one, and the statutory requirement should be faithfully observed by the prosecuting attorney.” People v. Tamosaitis, 244 Mich. 258; People v. Koukol, 262 Mich. 529 (87 A. L. R. 878).
The same rule which requires names of the witnesses in chief to be upon the information requires the indorsement of rebutting witnesses if known.
“It is as important to impeach a rebutting witness as any other.” People v. Quick, supra. See, also, People v. Smith, 257 Mich. 319.
Intimately connected with this assignment of error is that based upon the fact the prosecuting attorney indorsed witnesses upon the information without notice to defendant and without any adequate showing.
In People v. Smith, supra, 325, it was said:
“No request to the court was made to add her name to the information and no excuse appears in the record or in the people’s brief for not having-done so as soon as her testimony was discovered. In the language of Justice Campbell, 'this was an unfair suppression, in contravention of law.’ (People v. Hall, 48 Mich. 482, 488 [42 Am. Rep. 477].) It was said in People v. Quick, 58 Mich. 321:
“ ‘We have held on several occasions that the defendant has a right to know in advance of the trial what witnesses are to be produced against him, so far as then known, and to have any new witnesses indorsed on the information as soon as discovered.’
"This right of a defendant in a criminal case to know in advance what witnesses are to be produced against him is a substantial right, not a mere formality. People v. Hall, supra.
"So strictly has the court upheld this right that in People v. Moran, 48 Mich. 639, a conviction for burglary was set aside because the prosecuting attorney, during the trial, indorsed the names of additional witnesses on the information without first having obtained leave of the court. And as recently as 1928 this court said in People v. Tamosaitis, 244 Mich. 258:
“ ‘The right of the defendant to know the witnesses to be called against him is a substantial one, and the statutory requirement should be faithfully observed by the prosecuting attorney.’ ”
It is claimed by defendant the court was in error in permitting evidence properly introduced in chief to be introduced as rebutting testimony; that this was a surprise to defendant and a violation of the order of proof prevalent in criminal trials. The order in which testimony shall be introduced is largely in the discretion of the trial court, and this discretion will not ordinarily be interfered with. 4 Encyc. of Evidence, p. 651; 9 Encyc. Evidence, p. 236; 3 Wigmore on Evidence (1st Ed.), § 1871. As said in 3 Wigmore on Evidence (1st Ed.), § 1867:
"There may occur instances where an opponent has been unfairly deprived of showing the truth by reason of such a variation of the customary order of evidence; but the trial court can better be trusted to understand the situation. The doctrine of new trials is not within the present purview; hut no opportunity should be lost to rebuke the abuse by which these rules of customary order are sought to be turned into inflexible dictates of absolute justice, and new trials are asked merely because an unusual sequence of evidence was adopted. Courts often lend ear to such appeals, and thereby partake in the abuse of such a practice. To purport to preside over the investigation of truth, and then, at an inordinate expense of time, labor, and money, to insist on reopening the entire investigation because a minor witness has been asked a minor question some half-hour before he should have been asked, is to furnish a spectacle fit to make Olympus merry over the serious follies of mortals.”
But notwithstanding this general principle, defendant is entitled to a fair trial and to have the testimony introduced in its proper order.
“In the present case, however, the witnesses who were received as rebutting witnesses were not such. They were called to prove what belonged to the people’s case in chief. Cases may sometimes arise where testimony which could not be had in the opening may be let in upon good cause shown thereafter. But it is not proper to divide up the testimony on which the people propose to rest their case, and nothing which tends to prove the commission of the crime itself or its immediate surroundings can be classed as rebutting evidence under ordinary circumstances, if at all.” People v. Quick, supra.
For the errors above indicated conviction is reversed, and new trial granted.
Nelson Sharpe, C. J., and Fead and Bushnell, JJ., concurred with Potter, J. | [
24,
15,
28,
-12,
-37,
6,
-10,
-1,
-48,
33,
22,
-17,
1,
-17,
8,
-18,
-20,
11,
49,
-46,
29,
-10,
-37,
11,
-22,
-38,
13,
38,
-18,
-3,
47,
23,
-18,
31,
-35,
-30,
12,
22,
5,
26,
19,
14,
-37,
-12,
-28,
-36,
20,
0,
38,
-10,
4,
-9,
-17,
-27,
-10,
-26,
19,
6,
-1,
-28,
25,
25,
-56,
-26,
-54,
-65,
6,
0,
-33,
34,
-75,
-26,
-26,
-53,
-44,
-21,
-14,
8,
-19,
-2,
-13,
10,
30,
-45,
12,
-14,
71,
-18,
-17,
-19,
-2,
20,
-41,
-29,
57,
-15,
32,
-9,
1,
10,
11,
40,
-9,
36,
-57,
17,
-63,
9,
24,
-12,
45,
24,
8,
-1,
-66,
-80,
-32,
9,
-5,
-9,
18,
8,
63,
57,
1,
-13,
-19,
-39,
-2,
-19,
22,
46,
15,
0,
-44,
-23,
-13,
-11,
24,
40,
35,
-5,
38,
14,
24,
41,
-26,
28,
21,
11,
-6,
21,
-22,
10,
-16,
-3,
14,
-67,
15,
-10,
24,
26,
-10,
-18,
-15,
-29,
20,
19,
19,
-13,
-2,
-20,
61,
32,
12,
-20,
-32,
-51,
30,
7,
0,
41,
13,
6,
23,
39,
-10,
23,
10,
-3,
24,
15,
-38,
-44,
58,
64,
-36,
21,
68,
-47,
10,
-22,
-18,
-8,
26,
21,
-1,
-3,
15,
-25,
-37,
32,
2,
-1,
-10,
-16,
11,
-32,
5,
9,
-92,
0,
-41,
26,
17,
-40,
-32,
13,
-39,
2,
43,
3,
-14,
15,
-34,
-69,
58,
-32,
37,
33,
-22,
-17,
43,
-16,
20,
13,
15,
28,
-32,
29,
27,
20,
28,
-32,
-42,
-10,
4,
-47,
-44,
28,
-19,
70,
9,
8,
-35,
31,
8,
14,
5,
9,
-2,
-44,
2,
41,
13,
0,
-21,
37,
-20,
-19,
-8,
10,
-15,
72,
-42,
35,
-38,
33,
3,
-4,
28,
-61,
-41,
-14,
32,
28,
34,
-16,
-19,
-25,
58,
-14,
15,
-17,
8,
-46,
24,
-10,
-38,
-14,
25,
36,
-5,
23,
33,
5,
15,
35,
29,
-20,
-28,
-5,
-5,
-28,
-20,
-9,
-11,
-54,
-47,
17,
-23,
26,
18,
-3,
19,
-25,
11,
-27,
16,
39,
-3,
-40,
-21,
-25,
29,
-1,
26,
25,
-34,
-2,
17,
20,
-2,
-26,
24,
-20,
6,
-25,
23,
-2,
0,
-25,
58,
12,
16,
-18,
-15,
-32,
-3,
36,
-7,
-31,
10,
-25,
22,
-8,
42,
-53,
-16,
55,
-72,
15,
18,
-31,
15,
31,
29,
-23,
13,
24,
-28,
9,
-10,
-38,
-32,
16,
-5,
1,
26,
0,
-13,
27,
13,
2,
-59,
-36,
-23,
38,
14,
4,
4,
40,
36,
49,
7,
-48,
2,
-10,
34,
-16,
-2,
-60,
53,
-36,
33,
3,
-26,
19,
21,
-28,
-29,
-47,
-2,
-56,
12,
15,
-28,
-21,
44,
7,
-19,
-7,
-26,
12,
0,
2,
22,
17,
9,
-26,
-1,
-12,
22,
-8,
19,
11,
36,
15,
4,
-3,
-29,
-25,
-52,
-16,
10,
-17,
-28,
-9,
-19,
-5,
23,
-27,
-16,
6,
-4,
48,
-4,
30,
1,
1,
22,
33,
0,
-44,
-24,
-34,
11,
-51,
0,
-13,
-4,
-7,
-6,
-8,
-38,
21,
-21,
37,
-10,
62,
-10,
1,
-34,
-13,
50,
-1,
35,
-65,
79,
30,
-44,
38,
5,
35,
-60,
-57,
16,
-28,
7,
13,
1,
-58,
28,
13,
-5,
9,
-16,
11,
5,
-12,
91,
36,
12,
9,
20,
19,
-77,
-43,
-12,
-10,
-15,
43,
78,
19,
31,
-21,
-9,
14,
48,
33,
1,
-11,
15,
9,
-19,
-9,
-10,
-8,
20,
-61,
-16,
-4,
12,
32,
24,
-35,
20,
-33,
34,
-18,
22,
44,
-57,
30,
-11,
23,
46,
55,
-21,
-6,
3,
1,
-1,
0,
6,
40,
31,
-9,
4,
14,
-18,
-6,
-9,
-4,
-1,
-29,
-9,
5,
41,
28,
-13,
-12,
-32,
13,
31,
22,
22,
8,
-2,
-30,
53,
-48,
-11,
-15,
-15,
25,
-29,
-16,
-71,
62,
-8,
-1,
-13,
15,
15,
14,
-33,
-33,
-39,
-59,
-15,
-7,
-67,
21,
-23,
52,
8,
17,
-34,
12,
56,
12,
47,
-33,
25,
40,
-38,
51,
7,
-86,
-33,
40,
8,
-68,
16,
20,
-10,
24,
12,
7,
21,
13,
-28,
9,
-15,
52,
-13,
-48,
46,
-34,
-3,
-4,
17,
-14,
19,
-45,
30,
-9,
15,
-1,
-20,
-22,
5,
4,
53,
-33,
-10,
15,
0,
-15,
15,
38,
27,
3,
17,
-35,
39,
30,
-46,
-53,
-8,
-9,
29,
-22,
23,
-1,
1,
2,
25,
-17,
-13,
93,
-42,
-16,
22,
-3,
-67,
-44,
3,
40,
-15,
-13,
28,
12,
34,
38,
21,
8,
65,
-30,
33,
-21,
-14,
24,
47,
20,
13,
21,
-17,
-7,
0,
-14,
-35,
-14,
0,
-41,
39,
-42,
7,
-10,
41,
41,
9,
-21,
-48,
52,
32,
-14,
-37,
-44,
13,
-2,
30,
-52,
-47,
-15,
36,
-40,
17,
38,
-6,
-46,
34,
-2,
-66,
17,
-9,
-62,
25,
-19,
21,
1,
-14,
-4,
31,
-33,
26,
11,
-53,
-14,
31,
1,
-55,
38,
27,
-36,
0,
-9,
42,
25,
33,
-18,
26,
11,
21,
24,
8,
-52,
6,
-14,
70,
26,
-58,
17,
1,
-58,
-20,
-41,
32,
-48,
-4,
45,
8,
-38,
-22,
-46,
-7,
-40,
-3,
-22,
10,
-6,
-5,
13,
34,
-26,
31,
45,
-8,
36,
49,
7,
-22,
23,
31,
-11,
-9,
0,
-8,
36,
-1,
15,
5,
-27,
-26,
26,
35,
50,
17,
53,
2,
9,
-18,
5,
0,
20,
-2,
-29,
-3,
-41,
15,
23,
20,
-1,
-24,
38,
-20,
36,
-16,
57,
-8,
-37,
3,
-15,
10,
-41,
-22,
-71,
-68,
21,
50,
36,
22,
11,
-29,
-14,
-19,
26,
-5,
-16,
48,
4,
-46,
-5,
51,
-2,
34,
-33,
-18,
26,
-4,
4,
-1,
23,
58,
7,
4,
-15,
-11,
-38,
-38,
29,
21,
6,
-25,
-16,
-3,
-38,
-7,
18,
11,
7,
-6,
-44,
15,
2,
-13,
-50,
2,
-41,
28,
26,
-52,
13,
-36,
-33,
-59,
39,
-28,
17,
-84,
-68,
5,
26,
6,
-7,
-29,
11,
-29,
-41,
-19,
50,
2,
-11,
26,
11,
-18,
-8,
-19,
32,
5,
-23,
21,
-5,
26,
22,
-5,
-5,
-14,
-37,
-52,
-54,
-11,
0,
5,
-4,
-12,
-27,
-6,
-29,
-33,
20,
-32,
24,
-57,
11,
-22,
-4,
13,
17,
-18,
37,
36,
9,
46,
-5,
-7,
37,
-30,
5,
0,
-36,
19,
-3,
-17,
27,
2,
-3,
-24,
-69,
-5,
44,
-26,
19
] |
Edwards, J.
This is a divorce matter which comes to us on appeal from the order of a Wayne county circuit judge modifying a prior decree of divorce between the parties to cancel some $1,500 arrearage in support payments for 1 child, which the defendantappellee had been ordered (and had failed) to make.
Although the Supreme Court hears such matters de novo on the record, we give great weight to the findings of facts of the circuit judge. Hartka v. Hartka, 346 Mich 453; Brugel v. Hildebrant, 332 Mich 475; Donaldson v. Donaldson, 134 Mich 289. We also recognize that considerable discretion is vested in the chancellor in handling the question of enforcement (Terry v. McClintock, 41 Mich 492), or amendment of his own decrees (CL 1948, § 552.17 [Stat Ann 1957 Rev § 25.97]; Huger v. Huger, 313 Mich 158).
Our principal problem in this appeal is posed by the fact that while we deal here with 2 opposing petitions to modify, with pleadings showing a number of disputed questions of fact (including claims and denials of ability to pay and of fraudulent misrepresentation), at the same time we are confronted by a record which shows not a line of testimony, and one which contains nothing which can be construed as a stipulated or agreed statement of facts.
It is apparent that there was a hearing in this matter before the circuit judge in the sense of an oral argument upon the 2 conflicting petitions to modify. It may be assumed that the circuit judge took as facts upon which he based his decision those reported by the friend of the court in a full and competently-prepared report.
Such a report is authorized by statute for the consideration of the circuit judge. CL 1948, § 552.-253 (Stat Ann 1957 Rev § 25.173); Metzinger v. Metzinger, 310 Mich 335. It is not generally admissible in evidence. Brugel v. Hildebrant, supra. It may, however, by agreement of all parties be accepted in evidence as constituting an agreed statement of facts or record of testimony. Bowler v. Bowler, 351 Mich 398.
It is perhaps unnecessary to state that such agreement must be indicated in some definite fashion on the record. We find no such agreement recorded here.
Without further comment on the merits of the other issues which counsel seek to submit, we vacate the order modifying the decree, and remand for hear ing in accordance with, this opinion. Costs to appellant.
Dethmers, C. J., and Carr, Kelly, Smith, Black,. Voelker, and Kavanagh, JJ., concurred. | [
-19,
-32,
25,
-13,
-22,
-7,
-10,
-24,
-26,
9,
23,
-31,
14,
-30,
8,
0,
-4,
26,
1,
-22,
-39,
-5,
36,
55,
9,
32,
2,
20,
11,
12,
-29,
16,
-20,
43,
1,
-47,
46,
5,
7,
22,
-23,
-69,
1,
-15,
-43,
10,
9,
-3,
1,
-26,
1,
-8,
0,
21,
47,
37,
-12,
5,
-7,
-53,
-23,
1,
27,
19,
2,
-8,
13,
13,
-5,
-26,
-5,
-30,
-6,
-40,
-3,
-24,
39,
-2,
-27,
44,
23,
1,
22,
4,
8,
20,
42,
-2,
9,
43,
-8,
21,
-49,
-11,
-6,
-13,
27,
6,
22,
22,
-39,
5,
40,
18,
12,
8,
1,
8,
-17,
23,
63,
-15,
27,
-30,
7,
8,
-34,
-34,
8,
-67,
23,
21,
-9,
24,
23,
11,
11,
-37,
1,
-24,
0,
42,
8,
10,
9,
-65,
0,
-2,
26,
1,
40,
7,
35,
-10,
37,
-5,
3,
-19,
-6,
-38,
2,
-24,
74,
-1,
12,
4,
-32,
-62,
36,
-43,
71,
60,
-73,
1,
-30,
-15,
-4,
51,
-40,
-26,
38,
-3,
-22,
-13,
23,
7,
-3,
3,
-12,
14,
-6,
59,
19,
-73,
-14,
-1,
-7,
-43,
-8,
-45,
-1,
17,
24,
21,
54,
27,
5,
71,
24,
-6,
-6,
-29,
21,
25,
-24,
-28,
-24,
-31,
-41,
71,
-11,
29,
19,
-40,
-22,
-31,
20,
-21,
-47,
24,
38,
-19,
25,
4,
-72,
-35,
27,
1,
5,
9,
-22,
36,
14,
-29,
17,
5,
18,
-23,
19,
1,
-33,
-3,
-10,
-1,
17,
5,
-19,
-4,
61,
-11,
-21,
45,
-25,
0,
-13,
-63,
-3,
-6,
-18,
12,
-18,
34,
-6,
-1,
-25,
19,
-13,
-10,
18,
-22,
21,
-29,
-7,
-60,
12,
13,
-46,
-13,
-32,
49,
-17,
49,
-2,
24,
-2,
45,
-38,
43,
43,
40,
37,
-16,
-43,
7,
29,
2,
-2,
-4,
11,
10,
-21,
-32,
2,
27,
-34,
-45,
-65,
-31,
-7,
-11,
18,
39,
32,
4,
16,
-19,
-57,
-22,
23,
-4,
-24,
20,
-15,
-11,
0,
-12,
15,
-53,
-23,
-18,
-33,
32,
-2,
19,
51,
-27,
22,
7,
-1,
-13,
22,
-39,
16,
0,
6,
-8,
-33,
-8,
-23,
-9,
1,
3,
0,
47,
-74,
-5,
-11,
-65,
10,
-19,
-20,
-5,
-4,
-30,
-28,
81,
10,
-7,
32,
30,
17,
-16,
-31,
7,
3,
-3,
26,
9,
18,
-13,
-37,
5,
-30,
-5,
33,
11,
-18,
0,
-11,
-21,
-39,
14,
5,
-24,
-40,
4,
28,
5,
-28,
10,
-1,
-19,
22,
23,
2,
31,
-8,
-59,
-27,
1,
7,
-26,
-11,
8,
11,
-4,
18,
-2,
-1,
24,
-5,
44,
7,
-2,
-9,
-47,
8,
-6,
41,
15,
-21,
-2,
-9,
-13,
26,
23,
1,
-22,
-30,
-6,
-22,
51,
-31,
10,
5,
32,
-21,
17,
12,
-4,
22,
-52,
10,
-14,
-23,
-5,
-13,
-15,
-42,
-55,
7,
-29,
10,
-29,
12,
-17,
-69,
-5,
46,
9,
-3,
10,
5,
51,
-1,
-9,
-18,
-1,
0,
-13,
18,
39,
-14,
23,
-3,
13,
-54,
-34,
-34,
-8,
2,
-20,
-47,
5,
2,
-51,
18,
-2,
-4,
33,
27,
47,
47,
-50,
15,
-16,
12,
-9,
24,
27,
25,
10,
66,
53,
-39,
3,
33,
7,
29,
-4,
15,
5,
4,
-35,
7,
-7,
19,
-5,
-22,
14,
38,
114,
20,
-35,
15,
37,
-5,
-2,
-14,
-3,
-25,
17,
-46,
-12,
29,
-42,
4,
-2,
13,
20,
-4,
-84,
-10,
-22,
39,
10,
33,
52,
-63,
-24,
-7,
-3,
-13,
6,
44,
13,
-22,
-12,
-29,
-29,
9,
-40,
5,
-24,
-7,
23,
7,
-36,
-38,
-6,
-10,
-16,
-52,
-12,
14,
6,
23,
-2,
50,
-46,
-15,
-39,
35,
-43,
16,
-33,
21,
0,
74,
42,
69,
15,
0,
15,
-2,
0,
-10,
49,
6,
-58,
9,
-20,
-30,
-2,
24,
47,
-18,
-13,
3,
19,
-4,
62,
-2,
-37,
6,
-22,
18,
3,
-13,
18,
9,
-16,
36,
8,
-16,
-3,
-12,
-2,
-9,
9,
15,
46,
-1,
11,
48,
0,
-43,
19,
-14,
5,
19,
57,
16,
-45,
9,
-13,
25,
-26,
-5,
-33,
17,
-20,
-15,
44,
35,
18,
28,
23,
14,
-32,
-6,
6,
20,
0,
28,
22,
-17,
15,
34,
29,
5,
5,
-59,
18,
-60,
-20,
7,
27,
-2,
12,
11,
32,
-5,
0,
-19,
-50,
-8,
41,
-33,
0,
27,
0,
-37,
-13,
-12,
17,
-1,
32,
11,
-3,
-66,
-5,
-22,
-23,
-37,
10,
40,
-5,
-43,
-29,
-27,
14,
-1,
-16,
4,
-23,
42,
-34,
28,
-15,
-2,
-28,
0,
-16,
-9,
38,
-3,
-11,
-42,
-5,
24,
1,
-3,
7,
-2,
-21,
10,
34,
-28,
34,
61,
11,
7,
25,
-54,
82,
34,
-12,
0,
-6,
-19,
14,
-36,
26,
-6,
-48,
-18,
-9,
30,
31,
-8,
-20,
-21,
15,
-6,
2,
-15,
-23,
-17,
-50,
-5,
-15,
-35,
17,
31,
-15,
52,
-56,
8,
31,
6,
-64,
-19,
-36,
41,
43,
-21,
8,
44,
-26,
90,
56,
23,
-8,
-6,
47,
-71,
12,
37,
26,
2,
41,
27,
-23,
0,
-27,
-23,
-10,
-26,
-26,
42,
16,
2,
-7,
-12,
-19,
2,
6,
-19,
21,
52,
-41,
28,
19,
33,
-1,
-8,
24,
-13,
11,
8,
-45,
-11,
-21,
6,
41,
-12,
41,
-17,
5,
-13,
13,
6,
6,
41,
23,
-30,
15,
-22,
9,
5,
29,
-14,
-18,
15,
-9,
1,
-4,
34,
-33,
-18,
-3,
-15,
10,
-28,
-32,
8,
-53,
-52,
-16,
5,
-17,
9,
-13,
1,
-15,
0,
-12,
-46,
22,
0,
26,
21,
16,
-29,
-15,
-7,
-34,
-16,
-24,
6,
-13,
-19,
-15,
46,
61,
-50,
42,
-23,
15,
-25,
-26,
4,
-10,
-24,
10,
-48,
-5,
25,
-26,
29,
10,
1,
-34,
-3,
-16,
-20,
-13,
-44,
11,
17,
-12,
-31,
-8,
73,
0,
-8,
18,
19,
-19,
-2,
-35,
-22,
-6,
-16,
3,
-37,
2,
-32,
-17,
0,
22,
8,
15,
-6,
7,
-4,
14,
-9,
13,
-30,
49,
-2,
1,
7,
-23,
10,
16,
-6,
27,
-10,
-36,
-42,
3,
5,
-13,
61,
31,
-29,
-13,
-29,
-3,
-22,
41,
-35,
-19,
-3,
3,
-51,
2,
-3,
-2,
31,
-44,
-57,
19,
13,
-35,
-2,
12,
-1,
24,
22,
0,
27,
-59,
1,
4,
-30,
41,
23,
36,
20,
18,
-2,
8,
-2,
-22,
-6,
-28,
-20,
58,
16,
34
] |
North, J.
Plaintiffs on August 19, 1925, entered into a land contract with defendants whereby the latter purchased a parcel of land in the city of Ann Arbor. The total purchase price was $8,500, down payment $1,250 and balance in monthly instalments. October 6, 1928, defendants assigned their vendees’ interest to Allan H. Patón and Dugald Duncanson. The assignees agreed “to assume and fulfill all the obligations ” of the contract. For approximately one year after the assignment the assignees made payments to plaintiffs as required by the contract, but thereafter payments were irregular and the assignees at all times were in default. On April 4, 1932, plaintiffs began this suit in assumpsit to recover from defendants $1,453, the amount past due and unpaid on the contract as of March 31,1932.
Defendants’ answer sets up cancellation of the contract, discharge of liability and estoppel. Also, at least in their amended answer, defendants plead novation. On trial without a jury the court found novation and rendered judgment in favor of defendants. Plaintiffs have appealed.
Notwithstanding other defenses above noted decision turns on the question of novation. It is stated in appellees’ brief:
“It appears fair to state that the word ‘estoppel’ cannot be accurately employed in this argument. It is recognized that the necessary elements of duty cannot be claimed to exist. It is apparent that the use of the word ‘estoppel’ and an analysis of its application to the instant case show that it is in reality an approach to the theory of novation in the sense that the acts and conduct of plaintiffs are so clearly indicative of a novation that they cannot now be heard to say that they did not intend a novation. * * # This case appears to present a clear question of law for determination by this court. As stated at the outset of this brief the whole inquiry is whether or not there was a novation.”
What in general constitutes novation need not be here stated. This subject has received consideration in numerous decisions of this court. Reference is made to Harrington-Wiard Co. v. Blomstrom Manfg. Co., 166 Mich. 276; Ceabuske v. Smolarz, 229 Mich. 100; Epworth Assembly v. Railway, 236 Mich. 565, and Husted v. Pogue, 249 Mich. 410. In the instant case it is conceded there was no written agreement as the basis of the alleged novation. But appellees assert that the conduct of plaintiffs was for a considerable period of such a character that we should hold under the facts and circumstances here presented that plaintiffs accepted Patón and Duncanson as vendees in the place of defendants, thus consummating a novation of parties. Appellees stress the following facts: (1) before assigning their vendees’ interest in this contract, Mr. Spencer interviewed Mr. Straube. (2) Patón and Duncanson were originally plaintiffs’ agents and for some time received defendants’ contract payments and accounted for them to plaintiffs. (3) Plaintiffs made no objection to the assignment. (4) Although defendants’ assignees were in default for some considerable time, plaintiffs did not communicate with defendants relative to the contract indebtedness, but instead offered to take the property back if defendants’ assignees would pay taxes then in arrears, and subsequently offered to destroy the contract upon payment of one-half of delinquent taxes by defendants’ assignees. (5) Mr. Straube at one time attempted to collect rental due from a tenant in possession under Patón and Duncanson. (6) It appears from the testimony that until Mr. Straube was so advised by his attorney he was not aware that he could claim that defendants were liable on this contract. Touching his interview with Mr. Straube, defendant Spencer testified:
“I can state only in a general way what the conversation was. Of course, I was very anxious to get rid of the house because I had moved to Jackson. * * * My recollection is that it was a very general conversation; * * * that it (the property) was to be turned over to his agent, as I understood it; at least, the people with whom I had done all the business for him, and that he had no objection — ■ was very glad to.”
Then in response to a leading question the witness further testified:
“Q. In other words, he was taking Allan H. Patón and Dugald Duncanson in your place on the contract as purchasers ?
“A. That is the best of my recollection. * * * At the time I signed this agreement (the assignment of the contract) it was absolutely my intention to be relieved from liability under the contract. * * * I do not think there was anything said between me and Mr. Straube in regard to my being released. ’ ’
Notwithstanding the course of conduct on the part of the respective parties above noted, we are not persuaded that there was a novation. We think it clearly appears from this record that at the time of the assignment of the vendees’ interest in this contract none of the parties to this suit considered whether as a legal consequence of that transaction defendants were released from their contract obligation. Certainly there was no definite understanding at that time in that particular between plaintiffs and defendants. Nor is there anything in the subsequent conduct of plaintiffs which is at all indicative of a fixed intention on their part to release defendants. Instead the course of conduct on the part of all parties concerned is typical of that which usually occurs incident to the assignment of a vendee’s interest in a land contract. There is testimony in this record that plaintiffs did not learn of the assignment to Patón and Duncanson until three or four weeks after the assignment was consummated. No claim is made that defendants requested of plaintiffs a release from the contract liability or that defendants at any time prior to suit definitely advised plaintiffs of a claimed release. At no time have the vendors exercised any authority over the property which was indicative of a cancellation of the contract. A careful review of the record in this case leads to the conclusion that the circuit judge was in error in finding that defendants were released by novation from their obligation as vendees in this land contract. The judgment en tered in the circuit court will he set aside and the case remanded for entry of judgment in accordance herewith. Plaintiff will have costs of both courts.
Nelson Sharpe, O. J., and Potter, Fead, Wiest, Butzel, Bushnell, and Edward M. Sharpe, JJ., concurred. | [
-12,
22,
0,
-38,
-10,
-4,
31,
-6,
20,
40,
19,
-16,
15,
63,
-6,
-6,
-43,
-30,
-11,
21,
-61,
-64,
-34,
-37,
-34,
-20,
38,
-48,
22,
51,
32,
10,
-22,
66,
-17,
12,
-44,
-24,
-10,
6,
-2,
-19,
47,
-21,
34,
13,
23,
-36,
6,
3,
18,
18,
-10,
-3,
-49,
-24,
-29,
-1,
-1,
42,
-13,
-27,
-20,
9,
-38,
-17,
-31,
39,
23,
21,
-8,
30,
33,
-51,
14,
-21,
-29,
-24,
3,
-2,
23,
-18,
26,
-22,
-7,
41,
-41,
-20,
12,
-25,
-10,
2,
12,
-4,
-40,
31,
-6,
29,
-4,
-5,
7,
-7,
-48,
9,
-6,
16,
-22,
-23,
6,
-17,
-8,
47,
27,
-65,
-2,
-17,
-17,
-26,
68,
-21,
-23,
33,
-18,
-2,
-6,
12,
-23,
-15,
-44,
35,
-2,
1,
-58,
92,
-38,
56,
8,
34,
-18,
-25,
28,
23,
-13,
-30,
8,
36,
22,
-27,
8,
-37,
-41,
-13,
25,
10,
-19,
-27,
28,
-32,
22,
-65,
64,
-22,
-33,
-10,
-31,
-31,
-23,
5,
20,
37,
11,
-17,
4,
-50,
31,
14,
60,
-41,
-20,
-47,
10,
27,
-7,
-62,
3,
-56,
-4,
24,
14,
-3,
38,
-9,
-24,
1,
-64,
49,
-44,
31,
0,
9,
16,
-1,
-16,
-38,
-39,
26,
35,
-41,
36,
60,
-26,
-18,
-21,
-61,
22,
-5,
8,
-19,
4,
-58,
43,
-2,
-38,
47,
-16,
-17,
-7,
9,
22,
53,
16,
0,
-26,
42,
-25,
-37,
21,
38,
-37,
-16,
21,
2,
-24,
-28,
-43,
-7,
-4,
-39,
30,
46,
-65,
-18,
-41,
-5,
-24,
-3,
16,
-8,
-37,
-6,
22,
31,
-60,
0,
-41,
36,
-9,
-18,
-44,
1,
-1,
16,
-51,
4,
-52,
-63,
-68,
20,
12,
19,
15,
-27,
12,
-16,
-44,
16,
-14,
40,
-57,
45,
30,
-3,
-8,
-33,
26,
39,
31,
3,
10,
54,
-45,
22,
46,
36,
21,
-6,
-32,
22,
25,
-34,
-7,
-22,
-47,
-47,
-14,
-14,
-2,
-39,
41,
-29,
4,
7,
1,
14,
20,
-21,
11,
-28,
-22,
6,
7,
-4,
-24,
15,
2,
-27,
-9,
-15,
-29,
-27,
42,
22,
-48,
-25,
43,
31,
30,
-55,
-29,
1,
-8,
-11,
-35,
-3,
-19,
-10,
3,
11,
0,
8,
48,
49,
-2,
-11,
-13,
36,
-35,
-3,
-16,
58,
30,
46,
-21,
6,
2,
15,
-48,
2,
-69,
72,
-40,
-47,
-23,
68,
-9,
-3,
-56,
-6,
-13,
-10,
-6,
-29,
10,
47,
11,
1,
7,
46,
-28,
-28,
38,
36,
-5,
-11,
-9,
-10,
39,
-13,
6,
66,
-2,
16,
75,
-38,
-3,
23,
5,
25,
26,
31,
35,
25,
16,
14,
-10,
-16,
35,
-51,
-28,
13,
-29,
33,
36,
31,
32,
0,
-71,
-18,
-27,
20,
-34,
24,
-47,
0,
-5,
-25,
1,
-28,
0,
-11,
79,
48,
38,
-23,
-26,
-21,
21,
-41,
33,
20,
-19,
-46,
65,
0,
8,
-26,
-22,
2,
-6,
22,
-2,
30,
39,
18,
-22,
3,
-2,
-1,
-33,
30,
-26,
-43,
-13,
-47,
-36,
-32,
-29,
-23,
10,
54,
1,
-15,
-15,
8,
17,
-17,
-18,
4,
4,
42,
27,
-14,
29,
-3,
8,
1,
-31,
-101,
25,
40,
-45,
-16,
35,
45,
-18,
-12,
12,
-3,
24,
38,
28,
20,
-36,
5,
-17,
14,
6,
9,
31,
27,
66,
-60,
-21,
-29,
-48,
-15,
10,
-1,
-10,
0,
4,
30,
-16,
24,
-23,
7,
13,
-20,
-18,
1,
-14,
-46,
10,
32,
-31,
5,
36,
-30,
-44,
17,
10,
22,
23,
-50,
71,
0,
7,
-14,
1,
-31,
-26,
2,
38,
16,
-46,
-34,
20,
-48,
0,
20,
7,
40,
-2,
-38,
2,
1,
4,
-13,
30,
35,
-4,
42,
7,
-38,
-18,
-20,
20,
34,
8,
-7,
-37,
61,
-32,
18,
-34,
4,
-9,
-16,
-7,
-68,
12,
50,
10,
29,
21,
28,
18,
-37,
6,
-21,
45,
-29,
-22,
4,
-23,
0,
-26,
19,
-43,
3,
38,
-4,
-11,
-20,
-10,
-5,
17,
-11,
5,
21,
-37,
5,
-17,
9,
-2,
-1,
5,
-28,
45,
21,
-9,
59,
15,
-22,
-32,
21,
-47,
-11,
-4,
-1,
15,
-24,
-10,
7,
11,
17,
0,
22,
25,
37,
17,
-22,
1,
-28,
21,
-12,
30,
34,
15,
28,
-12,
31,
64,
-30,
24,
4,
-55,
-19,
5,
6,
6,
53,
-32,
-50,
-23,
-59,
21,
37,
27,
30,
31,
-34,
53,
-64,
-17,
2,
-16,
26,
-2,
2,
29,
-21,
27,
-36,
-14,
62,
43,
31,
-35,
-12,
22,
10,
14,
-21,
3,
13,
27,
-37,
-1,
-35,
-10,
26,
75,
12,
-35,
19,
19,
10,
-21,
-25,
-7,
20,
-6,
54,
-38,
-41,
-11,
43,
0,
7,
-17,
-17,
60,
19,
-8,
20,
-30,
10,
-11,
-34,
-32,
-22,
-2,
26,
-26,
31,
-38,
0,
-1,
-32,
-42,
-27,
-37,
-67,
56,
0,
9,
5,
7,
27,
14,
14,
13,
19,
-42,
-56,
28,
-42,
8,
21,
6,
0,
10,
-13,
-51,
5,
31,
-31,
7,
-13,
-30,
33,
-20,
48,
19,
50,
-49,
28,
-7,
-8,
-6,
-36,
-21,
7,
20,
43,
-46,
66,
13,
-23,
-19,
65,
-46,
31,
-8,
32,
47,
-49,
1,
75,
60,
-20,
-10,
15,
14,
-13,
0,
-48,
-6,
-20,
-61,
-56,
-62,
33,
7,
-23,
5,
34,
10,
-62,
-34,
34,
0,
-8,
2,
8,
-28,
21,
32,
2,
-4,
3,
-26,
38,
46,
3,
-27,
10,
8,
-17,
23,
29,
14,
-20,
47,
-11,
-4,
-92,
46,
51,
-21,
39,
-51,
16,
-25,
4,
-1,
29,
-28,
76,
36,
-31,
-45,
43,
21,
0,
-20,
13,
-25,
17,
-9,
20,
9,
-31,
-31,
57,
-19,
38,
23,
29,
15,
-58,
22,
-5,
-28,
38,
-19,
25,
11,
31,
30,
-36,
-56,
3,
-22,
-31,
-29,
41,
10,
27,
-28,
11,
-1,
22,
47,
0,
-8,
0,
23,
-31,
-19,
-24,
-20,
-12,
0,
-34,
-7,
-9,
-17,
23,
3,
29,
48,
24,
19,
11,
-38,
-11,
-10,
-116,
2,
-2,
35,
-5,
18,
-14,
38,
-3,
36,
8,
5,
2,
-1,
-57,
-22,
-16,
7,
7,
-7,
-7,
19,
-26,
-30,
21,
2,
31,
-37,
-6,
-13,
-19,
23,
72,
39,
27,
34,
-25,
60,
-31,
31,
-36,
37,
-32,
24,
-15,
-19,
-22,
60,
-28,
-1,
16,
-27,
50,
35,
44,
-1,
23,
-27,
-9,
-19,
-32,
55,
29,
-1,
7
] |
North, J.
This is a habeas corpus proceeding by Charles Overton who is confined in the Michigan State prison. Petitioner was charged with murder. He entered a plea of guilty to the crime of manslaughter, and on July 11, 1928, was sentenced for a maximum term of 15 years, minimum of 12 years. The warrant for petitioner’s commitment to the State prison recites that he was convicted of murder. The petition for the writ of habeas corpus contains the following:
“It is alleged that the confinement of .the said Charles Overton under the present warrant of commitment is illegal, in that, the warrant specifies that he has been convicted of the crime of murder, and it is obvious, according to the records and files of said court and cause, that the respondent has not been convicted of the crime of murder. It therefore appears that Peter L. Gray, warden of the Jackson prison, has no legal and proper writ of commitment in his possession, at the present time, to restrain the defendant Charles Overton of his liberty, and the warrant of commitment now in his possession is void. Further detention by the warden of the Michigan State prison of the said Charles Overton is illegal. ’ ’
Incident to granting the writ of habeas corpus an ancillary writ of certiorari was issued to the circuit court and from the return to this writ it appears, as charged by petitioner, that the warrant for his commitment recites he was “duly convicted of the crime of murder, ’ ’ when in fact he was convicted of manslaughter. This, as appears from the return, was a clerical error. After the writ of certiorari was issued and before return thereto, upon application of the assistant prosecuting attorney, the circuit judge by whom petitioner was sentenced amended the warrant for removal and commitment. The order entered by the court reads as follows:
“This cause having come on to be heard upon the motion of Vincent L. Fitzgerald, assistant prosecuting attorney, for an order amending the warrant for removal of prisoner to any prison heretofore filed in said cause and the court having read the said motion and examined the files and records in the said cause, and the court being fully advised in the premises, therefore, on motion of Vincent L. Fitzgerald, attorney for the people,
“It is ordered that the warrant for removal of prisoner to any prison heretofore filed in this cause be and the same hereby is amended to read:
‘ Whereas Charles Overton has lately in our circuit court for the county of Macomb been duly convicted of the crime of manslaughter,’ instead of the recital of a conviction for murder, the warrant otherwise to stand.”
In this connection it may be noted that the circuit count in the original prosecution had jurisdiction of defendant’s person and of the offense charged and that of which defendant was convicted. The sentence imposed was for manslaughter to which the defendant had pleaded guilty, and the penalty imposed was within the statutory provision. 3 Comp. Laws 1929, § 16717. While it does not so appear from the return to the writ of certiorari, it may be assumed that the amended warrant for removal and commitment has been or will be forwarded to the warden of the Jackson State prison. Under these conditions, the commitment having been amended, petitioner has been granted all the relief to which he is entitled. He has not been subjected to illegal detention by the warden because the commitment under which the prisoner has been held is fair upon its face.
“There is no reason in discharging criminals for defective commitments if the defects can be remedied in accordance with the facts. The rights of the prisoner are not infringed by permitting the amendment, while the rights of the public might suffer greatly if such technicalities were allowed to prevail.” In re Collins, 135 Mich. 91.
Because of the disposition of this matter above indicated, we do not pass upon the question of whether habeas corpus is the proper remedy, which question is presented herein by the people’s brief.
Petitioner’s discharge on habeas corpus is denied.
Nelson Sharpe, C. J., and Potter, Fead, Wiest, Butzel, Bushnell, and Edward M. Sharpe, JJ., concurred. | [
65,
-6,
72,
-9,
-80,
-14,
-4,
-42,
-7,
6,
5,
0,
-41,
-11,
-32,
8,
8,
38,
6,
18,
-57,
-2,
-10,
-21,
-17,
12,
32,
27,
-13,
42,
22,
20,
23,
-18,
-8,
14,
75,
-42,
99,
48,
-13,
-9,
23,
-46,
-59,
-8,
6,
30,
-5,
-5,
-22,
13,
31,
-34,
21,
26,
13,
-93,
36,
29,
3,
35,
-5,
-33,
-44,
30,
0,
40,
7,
-6,
38,
5,
-7,
-32,
41,
51,
2,
-48,
49,
-22,
-19,
73,
-27,
-61,
-6,
5,
-14,
-45,
48,
6,
10,
8,
-63,
0,
-25,
33,
-38,
-12,
17,
-34,
-68,
-29,
-64,
-2,
17,
-8,
-33,
6,
15,
38,
-10,
38,
65,
22,
-51,
-46,
-50,
-43,
10,
-34,
32,
14,
22,
32,
0,
-12,
-10,
-38,
45,
-14,
31,
-30,
-32,
-23,
-44,
40,
-32,
-6,
-25,
-17,
-91,
8,
9,
5,
62,
-2,
-18,
7,
1,
0,
5,
41,
-6,
0,
1,
48,
-3,
-15,
-76,
17,
41,
-34,
-3,
-35,
42,
-4,
-39,
-32,
-37,
21,
-50,
21,
8,
12,
8,
11,
-13,
1,
6,
-4,
-25,
10,
21,
0,
-6,
32,
-20,
4,
-33,
-14,
-16,
56,
-1,
15,
19,
19,
-20,
-16,
0,
27,
-19,
5,
25,
21,
-35,
-12,
34,
2,
28,
5,
-2,
-62,
22,
18,
-67,
9,
-8,
-48,
18,
34,
-63,
3,
13,
8,
46,
-24,
12,
0,
-42,
-18,
34,
0,
-3,
55,
16,
-19,
29,
-2,
4,
-1,
-64,
5,
11,
-15,
24,
13,
-16,
-7,
-23,
-12,
27,
-1,
-49,
-5,
-32,
-10,
46,
-49,
14,
-28,
-36,
-11,
-11,
24,
-28,
-6,
8,
18,
2,
45,
2,
-2,
-5,
15,
-10,
35,
21,
20,
47,
-14,
24,
9,
1,
5,
12,
-29,
-16,
-35,
-19,
-40,
9,
-35,
2,
4,
50,
0,
-10,
-34,
29,
33,
15,
29,
-2,
-3,
38,
-17,
30,
33,
28,
-2,
3,
30,
-23,
-1,
7,
-29,
48,
-6,
44,
-22,
-43,
22,
-28,
-27,
30,
20,
2,
44,
-18,
14,
32,
-9,
-20,
2,
-36,
53,
-32,
-4,
-27,
10,
-3,
-35,
-6,
27,
-30,
-6,
20,
14,
-89,
-15,
-29,
25,
18,
26,
-9,
-12,
-35,
-32,
38,
-1,
45,
-46,
-23,
15,
-2,
-40,
-22,
-43,
52,
45,
29,
1,
-28,
-5,
9,
98,
52,
-56,
-7,
9,
-39,
24,
-6,
-2,
23,
-38,
-50,
-17,
24,
37,
-23,
16,
-55,
-27,
-11,
18,
45,
38,
29,
-27,
-6,
20,
5,
-19,
26,
1,
-42,
63,
27,
0,
-22,
9,
24,
57,
11,
-5,
-26,
-47,
-3,
-57,
-1,
42,
20,
-24,
17,
32,
26,
2,
-56,
-9,
47,
-23,
44,
19,
-20,
4,
-70,
-26,
40,
-30,
-45,
18,
18,
8,
-14,
19,
-11,
1,
11,
-4,
-16,
-3,
2,
-32,
-32,
37,
-28,
81,
-7,
-34,
-31,
-26,
39,
-3,
-1,
-9,
-84,
-4,
20,
3,
-24,
-10,
-16,
63,
-57,
-45,
20,
22,
8,
26,
1,
-21,
5,
-6,
-20,
1,
-23,
-17,
-20,
5,
-18,
-33,
-16,
52,
-5,
78,
-27,
-32,
-3,
25,
-24,
29,
-8,
46,
20,
-36,
-3,
-23,
85,
19,
5,
-19,
-30,
25,
-46,
-21,
-22,
-42,
16,
10,
-51,
38,
9,
13,
-6,
-10,
61,
-24,
-48,
58,
22,
-40,
-45,
-16,
7,
-16,
-19,
-37,
-14,
-23,
22,
7,
15,
41,
-17,
35,
-22,
-37,
-41,
3,
0,
-6,
-8,
-18,
-35,
11,
4,
-34,
19,
-4,
25,
-38,
25,
18,
-6,
-6,
-9,
68,
34,
-22,
70,
46,
-5,
67,
12,
7,
50,
-2,
34,
-28,
46,
-26,
-7,
16,
12,
-44,
-34,
0,
4,
-18,
-31,
16,
-13,
-88,
-41,
-9,
24,
6,
14,
-15,
-15,
25,
6,
6,
26,
1,
34,
3,
13,
-30,
-19,
-7,
17,
21,
-44,
30,
16,
-32,
-73,
28,
-14,
-24,
19,
2,
-47,
-36,
9,
-49,
49,
-34,
-16,
12,
-16,
26,
-48,
38,
-25,
16,
-3,
-39,
-32,
60,
24,
-54,
14,
-18,
-12,
-7,
-23,
48,
-3,
-16,
-35,
7,
-1,
-44,
16,
-15,
59,
-20,
20,
37,
-72,
-23,
26,
4,
-15,
-2,
25,
45,
25,
2,
-51,
-67,
-21,
23,
40,
-24,
82,
-22,
-2,
24,
-37,
-22,
19,
-58,
-20,
34,
-25,
38,
-22,
16,
14,
30,
46,
35,
25,
19,
-10,
35,
-8,
6,
6,
10,
-9,
-45,
12,
-21,
-70,
-55,
-16,
24,
5,
43,
-21,
1,
-15,
-10,
7,
43,
-39,
-47,
14,
-5,
69,
-19,
-19,
-23,
28,
-6,
41,
-38,
40,
13,
47,
-8,
-13,
-11,
13,
22,
-56,
-43,
-73,
-30,
6,
-29,
21,
-8,
-2,
3,
51,
24,
9,
8,
-9,
52,
31,
-82,
-37,
32,
0,
52,
4,
0,
-42,
19,
-31,
0,
78,
31,
-27,
-13,
-10,
-9,
-2,
57,
-12,
32,
66,
-31,
-21,
46,
-37,
-22,
0,
-29,
-59,
-29,
38,
-37,
30,
-3,
-3,
47,
2,
3,
34,
15,
-2,
12,
31,
7,
11,
-20,
-65,
-14,
28,
55,
-59,
64,
-4,
76,
-34,
21,
-13,
-13,
-21,
-19,
29,
51,
-6,
16,
25,
-2,
25,
28,
12,
5,
4,
25,
31,
35,
13,
-6,
54,
8,
-10,
-18,
-7,
25,
3,
-47,
63,
-34,
-16,
-7,
12,
-13,
0,
26,
26,
-6,
-59,
-25,
-82,
-34,
63,
-26,
13,
-15,
-8,
8,
-8,
-26,
2,
27,
11,
38,
9,
1,
-5,
-53,
-1,
28,
-25,
53,
21,
13,
7,
-24,
-1,
-20,
7,
37,
33,
-18,
-8,
-52,
-37,
-15,
-13,
26,
0,
38,
-19,
13,
17,
22,
-20,
-19,
13,
12,
-29,
-32,
-14,
27,
37,
27,
11,
6,
-26,
17,
-33,
-13,
-38,
-4,
-39,
7,
15,
-66,
-27,
44,
32,
41,
-45,
46,
6,
-28,
-28,
12,
-51,
-49,
-37,
-38,
-19,
-24,
55,
-65,
88,
-36,
-21,
-8,
-74,
-14,
13,
63,
-10,
-86,
2,
-9,
-48,
-27,
18,
-2,
-23,
34,
20,
-28,
-54,
-5,
-31,
-41,
29,
-6,
36,
53,
5,
27,
-1,
24,
-2,
13,
-57,
12,
20,
-2,
-21,
-6,
30,
-21,
27,
-27,
-33,
15,
-14,
-5,
41,
26,
-35,
0,
66,
32,
-9,
14,
25,
-11,
48,
-30,
-69,
38,
25,
-35,
29,
56,
52,
-11,
-25,
33,
-37,
11,
-23,
-4,
-43,
-1,
-56,
15,
-26,
-6,
21,
22,
7,
28,
-2,
22
] |
Smith, J.
This appeal arises out of a hill filed by plaintiffs, husband and wife, to quiet title to property ■deeded them by the department of conservation (hereinafter referred to as the department). The facts are not in dispute. The primary question for ■our determination is whether the word “mineral” as ■employed in the deed before us includes within its meaning sand and gravel. The purchaser says it does not. The State (seller) says it does.
On November 25, 1938, plaintiff Howard E. .Matthews made an offer to-the department, on-a-.printed form supplied by the latter, for the purchase <of a 40-acre tract of land owned by the State and ad joining his 560-acre farm. We will call this the “offer of purchase.” It contained a provision stating that any deed issued “upon the above application”' would contain a reservation to the State of all minerals pursuant to PA 1909, No 280, § 8 and, in addition, it quoted the substance of the reservation clause that would be inserted in the deed. Immediately following the quoted reservation clause in the offer of purchase, was an explanatory clause, in parentheses, stating that “Mineral rights include sand and gravel.” Plaintiff offered to pay $60 for the total 40 acres and, in response to a question in the application regarding the purposes for which the land was desired, stated that it was to be used for cattle-pasturage. The department accepted this offer and a deed was accordingly executed.
The deed as executed and delivered, however, although containing the quoted reservation clause, did not redefine “mineral rights” in the terms of the-offer. Plaintiff testified he had read the explanatory parenthetical clause in the offer of purchase, and, finding it missing in the deed, assumed the department had “just dropped it” and did not intend to reserve sand and gravel. The department, however,, both before and after the time of this deed, has construed the quoted reservation clause to include sand' and gravel.
The land to which plaintiffs received their deed was somewhat hilly and rolling in character, cov ■ered with second growth, patches of grass, clover and small scattering timber. The topsoil in parts was mostly gravel and, overall, the parcel was ■“pretty thin” pasture land. There was a small gravel pit on the land and subsequent to the issuance ■of the deed, plaintiffs and neighbors from time to time took small quantities of gravel from the premises. Between 1948 and 1952, plaintiffs, in addition, sold 54,000 cubic yards of gravel, in part to the Roscommon county road commission and in part to a private contractor who apparently resold to various road commissions. This gravel was “strip-mined” from the surface of the land leaving about a 10-foot excavation over approximately 6 acres and rendering that part of the 40-acres useless for grazing or farming. Upon discovery of the sale of this gravel, the department notified plaintiffs of the alleged trespass and breach of the reservation clause. Plaintiffs initially confessed their mistake and offered restitution. However, negotiations eventually failed and plaintiffs filed a bill praying a decree that they were the “lawful owner of all gravel on the premises” and that their title to such premises be quieted. The department filed a cross bill, praying that decree quiet its “ownership of all minerals” and also asking damages for gravel sold. The circuit court for the county ■of Roscommon entered the decree requested by plaintiffs and the department has appealed.
Two basic questions are raised upon this appeal. The first is whether the department had the statutory power to reserve sand and gravel when selling State lands for agricultural purposes. If the department is found to have such power, a further question is presented, namely, whether the wording of the reservation clause in the deed as issued by the department was in fact sufficient to reserve sand and gravel. The court below found in favor of plaintiffs and decree was entered accordingly.
As the deed, recites, the mineral reservation clause was inserted “pursuant to the provisions of PA 1909, No 280, § 12, as amended” (CL 1948, § 322.212 [Stat Ann 1958 Rev §13.441]). This act created the public domain commission, the powers and duties of which have been transferred to the department of conservation. CLS 1956, § 299.2 (Stat Ann 1958 Rev § 13.2). Section 7 of the act before us authorized the commission to sell State-owned land, while section 8 enumerated the reservations the commission was required to place in all deeds. By PA 1911, No 294, section 7 became section 11, and section 8, without change in language, became section 12. Section 12 read as follows:
“When any sales are made by and under the direction of the commission the deeds by which said lands are conveyed shall reserve all mineral, coal, oil and gas rights to the State and said rights shall be owned by the State; but said commission shall have power to make contracts with private individuals or corporations for taking ore, coal, gas or oil from said lands upon a royalty basis upon such terms as to said commission may be deemed just and equitable. Said commission shall also have power to provide that all deeds issued for lands along watercourses or streams shall contain a clause reserving the rights of ingress and egress over and across said lands.” (Emphasis supplied.)
The next amendment, for our purposes, was the amendment of section 12, by PA 1917, No 262, with the addition of the clause:
“Provided further, That the public domain commission is hereby authorized to sell the limestone, sand, gravel or other nonmetallic minerals.”
The final amendment, by PA 1929, No 320, changed the words “shall reserve” to the permissive “may reserve” and added: !
“Provided farther, That the commission is also authorized to sell all reserved mineral, coal, oil and gas rights to such lands upon such terms and conditions as the commission may deem proper. The owner of such lands as shown by the records shall be given priority in case the commission shall authorize any sale of such lands and unless he shall waive such rights, the commission shall not sell such rights to any other person.”
Plaintiffs argue that the words “may reserve all mineral * * * rights to the State” allow the department to reserve only “metallic” mineral rights, pointing to the 1917 amendment (empowering the department to sell limestone, sand, gravel and other nonmetallic minerals) as substantiating their position. Such amendment, they urge, has no relation to reserved mineral rights hut, rather, is intended merely to give the department authority to sell nonmetallic minerals found on lands that are still State owned. Such interpretation would be the more persuasive if the amendment had been to section 11, concerning “sales” of State land rather than to section 12, which specified the “reservations” to be made upon sale. In other words, the thrust of section 12 is to the rights a State agency may reserve to the State, and, of having so reserved, how that agency may then deal with such reserved rights.
For the purposes of this case, the function of the 1917 amendment is twofold. First, it served to fill what was felt to be a gap in the public domain commission’s powers. Under the 1909 and 19.11 acts, although the State retained ownership of all the mineral, coal, oil and gas, the commission was allowed to sell only certain of these, i.e., “ore, coal, gas or oil.” Here the word “ore” evidently referred to metallic minerals. In 1917 the commission obtained requisite statutory power to sell the remaining reserved minerals, those nonmetallic in compo sition. The 1917 amendment clearly shows that the original legislative nse of the word “mineral” encompassed both metallic and nonmetallic minerals, and it classifies sand, gravel, and limestone, as “nonmetallic minerals.” Such amendment, it will be observed, merely permits the commission, acting for the fee owner of the lands which were to be sold under the provisions of this act, to exercise (with respect to such minerals) the rights enjoyed by any other owner in fee, reserving such interests as might seem desirable under the circumstances. Cf., Krench v. State of Michigan, 277 Mich 168.
However, plaintiffs' next' assert that (even with statutory power to reserve sand and gravel in the department) such reservation was in truth not made, since the parenthetical clause was omitted from the deed. The department argues that such substances are included within the word “mineral” as employed in the deed, which reserves to the State “all mineral, coal, oil and gas, lying and being on, within or under the'said lands hereby conveyed * * * pursuant to the provisions of PA 1909, No 280, § 12, as amended.”
The word “mineral” has a wealth of meanings. If we divide all earthly matter into animal, mineral, and vegetable kingdoms, the place of sand and gravel ■ is Obvious. Equally obvious it is' that these substances are not mineral in the same sense as gold-bearing quartz. In the instrument before us, the word is used in a limited context. The scope of the mineral reservation is expressly made.dependent upon a particular statute, which, as we have seen, classifies sand and gravel as nonmetallic minerals. The legislature made specific that which in general speech is obscure. When construed in light of the statute, the deed necessarily reserves sand and gravel to the State. Indeed, this is the very construction the parties themselves gave to the reserva tion. They were laboring under no mistake during the negotiation of the deed, for nothing was left to mistake. The offer plainly stated, “Mineral rights include sand and gravel.”
Reversed and remanded for entry of decree in accordance herewith. No costs, a public question.
Dethmers, C. J., and Carr, Kelly, Black, Edwards, Yoelker, and Kavanagh, JJ., concurred.
“Saving and excepting out of this conveyance and always reserving unto the said State of Michigan, all mineral, coal, oil and' gas, lying and being on, within or under the said lands hereby conveyed, with full and free liberty and power to the said State of' Michigan, its duly authorized officers, representatives and assigns, and its or their lessees, agents and workmen, and all other persons by its or their authority or permission, whether already given or hereafter to be given, at any time and from time to time, to enter upon said lands and take all usual, necessary or convenient means-for exploring, mining, working, piping, getting, laying up, storing,, dressing, making merchantable, and taking away the said mineral, coal, oil and gas, pursuant to the provisions of PA 1909, No 280, § 8.w | [
3,
24,
-4,
0,
0,
50,
78,
53,
21,
37,
37,
10,
52,
55,
-7,
-8,
5,
-10,
-21,
43,
-39,
5,
-25,
21,
15,
-21,
-4,
-12,
-41,
29,
-7,
35,
-42,
17,
-5,
17,
2,
42,
-18,
27,
2,
-12,
22,
4,
-9,
-21,
-10,
-38,
-38,
5,
62,
-22,
25,
-41,
-38,
-4,
-41,
-39,
-29,
-39,
-52,
4,
-47,
36,
-4,
39,
-14,
4,
15,
-37,
-24,
71,
-10,
-46,
82,
-21,
12,
1,
-36,
6,
0,
8,
70,
-13,
2,
14,
5,
-14,
70,
6,
-22,
-14,
-14,
-45,
6,
35,
24,
32,
16,
16,
-26,
14,
6,
-7,
21,
40,
-36,
-5,
13,
9,
12,
-54,
-10,
-91,
-29,
22,
-28,
5,
-11,
3,
5,
-39,
13,
-11,
-10,
-80,
-24,
-17,
-39,
13,
7,
-33,
-30,
18,
31,
-7,
7,
-48,
-16,
-22,
-18,
0,
4,
-46,
23,
1,
9,
-44,
-35,
4,
-44,
22,
7,
17,
-10,
-1,
54,
-38,
49,
-52,
9,
24,
-10,
-6,
-58,
9,
27,
-17,
-20,
5,
46,
3,
-7,
8,
4,
0,
55,
32,
0,
-14,
-9,
-45,
-10,
-16,
-25,
-8,
-20,
21,
-47,
30,
10,
-43,
56,
-16,
-6,
39,
-3,
18,
-23,
-50,
-33,
-45,
27,
15,
-16,
-38,
-7,
-13,
10,
6,
-28,
11,
-14,
-33,
-14,
-10,
9,
16,
19,
8,
36,
18,
4,
-4,
-32,
-2,
24,
-7,
20,
15,
-24,
-25,
6,
56,
-39,
11,
37,
7,
3,
-7,
4,
-43,
-34,
-27,
28,
-9,
9,
-17,
3,
33,
-4,
-18,
-35,
47,
-7,
-59,
-5,
5,
-33,
-62,
-9,
48,
-7,
20,
-8,
-1,
-65,
-48,
-19,
33,
-19,
-2,
12,
44,
-34,
-18,
-2,
-39,
-23,
-35,
25,
-9,
14,
-31,
-5,
36,
11,
58,
10,
-37,
18,
-49,
11,
-13,
25,
30,
0,
-2,
30,
9,
-26,
4,
4,
-27,
4,
0,
-1,
-24,
18,
23,
29,
-21,
0,
33,
-34,
-24,
35,
-32,
5,
4,
-2,
-7,
30,
53,
13,
-5,
29,
-45,
24,
23,
-25,
-29,
16,
-7,
3,
26,
-18,
-38,
-23,
15,
36,
20,
2,
21,
38,
18,
-57,
51,
8,
8,
2,
47,
-41,
51,
51,
-19,
-22,
-30,
0,
42,
6,
30,
6,
-18,
-8,
4,
-21,
-35,
1,
15,
6,
7,
51,
0,
13,
10,
64,
24,
-20,
-6,
8,
-4,
12,
31,
9,
28,
-8,
0,
-23,
-16,
-16,
-79,
11,
61,
-5,
-28,
29,
-26,
-17,
6,
0,
10,
-7,
-5,
6,
-14,
2,
-68,
-47,
36,
-35,
27,
-10,
-28,
-28,
-1,
65,
5,
27,
59,
36,
11,
-16,
-31,
-18,
-47,
-20,
-16,
-20,
27,
-58,
-6,
0,
-26,
19,
25,
3,
-29,
-52,
25,
-2,
47,
5,
-16,
-34,
15,
-35,
16,
-16,
-38,
-15,
17,
-30,
-26,
-27,
40,
56,
-58,
6,
-50,
20,
36,
47,
-33,
0,
-57,
-47,
-33,
32,
-2,
41,
66,
47,
-28,
35,
7,
27,
-7,
0,
-15,
22,
11,
-37,
-26,
13,
-56,
-14,
19,
26,
11,
23,
-22,
27,
-23,
29,
10,
2,
-25,
30,
30,
0,
17,
15,
4,
-5,
16,
-9,
-8,
5,
46,
21,
-20,
-1,
-14,
28,
36,
95,
-10,
-28,
43,
-10,
-7,
-21,
-6,
25,
2,
15,
-16,
25,
-8,
17,
-12,
-10,
-8,
11,
-17,
-30,
37,
-15,
-14,
-46,
3,
12,
21,
-26,
11,
22,
-22,
-25,
0,
-49,
-22,
-11,
0,
3,
26,
0,
-11,
-21,
-11,
-36,
17,
-24,
-13,
53,
-19,
28,
-24,
-8,
82,
-53,
-59,
40,
-38,
47,
-28,
-54,
-45,
3,
25,
-40,
-46,
2,
-7,
15,
32,
11,
13,
22,
-11,
-58,
-20,
0,
-14,
-15,
-20,
27,
-16,
-29,
-21,
-6,
24,
-35,
8,
13,
-9,
1,
-24,
2,
11,
-25,
-18,
-11,
23,
-36,
-2,
33,
-33,
55,
1,
-18,
21,
-13,
-43,
37,
13,
-8,
41,
-20,
10,
5,
-49,
5,
-16,
23,
4,
16,
-2,
-5,
-11,
0,
-54,
-33,
19,
14,
0,
-13,
0,
39,
-12,
-28,
42,
7,
-10,
-20,
49,
-41,
-42,
12,
9,
55,
-21,
12,
-22,
-30,
-16,
49,
6,
29,
-4,
33,
4,
-32,
26,
49,
8,
33,
30,
21,
19,
-3,
11,
46,
-27,
-1,
15,
8,
24,
-1,
5,
2,
3,
35,
0,
3,
-30,
49,
49,
-4,
3,
5,
54,
-3,
-26,
0,
8,
-23,
-27,
6,
-17,
1,
21,
18,
9,
-7,
14,
-7,
19,
-23,
-49,
60,
8,
31,
-68,
-20,
13,
29,
-17,
7,
-4,
-17,
47,
20,
-13,
-18,
51,
6,
18,
-20,
-70,
2,
-21,
-26,
20,
-30,
23,
57,
4,
-43,
28,
-17,
-52,
1,
43,
7,
-30,
-47,
19,
4,
-35,
26,
21,
-73,
-12,
-26,
-69,
-12,
-49,
18,
2,
27,
16,
-30,
3,
2,
-22,
-7,
21,
15,
9,
-13,
-18,
-17,
12,
-29,
-41,
-6,
-19,
17,
9,
34,
51,
-24,
-45,
16,
26,
55,
29,
-15,
-30,
-46,
-1,
3,
31,
26,
32,
-36,
9,
-47,
1,
-4,
-21,
13,
-21,
-13,
3,
11,
76,
-23,
-25,
32,
9,
0,
-50,
-13,
21,
50,
10,
-3,
-45,
16,
-37,
-39,
37,
46,
-11,
-1,
2,
0,
3,
-9,
-65,
31,
-35,
18,
-18,
-50,
2,
5,
40,
-44,
6,
-4,
21,
-9,
9,
-46,
-4,
12,
-14,
15,
-5,
-21,
22,
-4,
-31,
3,
43,
19,
-3,
6,
-12,
-20,
23,
42,
14,
-27,
-42,
8,
0,
-28,
-33,
10,
53,
-41,
-11,
1,
-22,
29,
28,
11,
-31,
-43,
18,
13,
-33,
12,
-19,
-21,
-7,
-2,
40,
-16,
38,
-16,
-11,
59,
29,
36,
18,
-11,
-27,
8,
-45,
-26,
33,
-4,
-24,
4,
41,
58,
-3,
-49,
-11,
-39,
-30,
-36,
26,
-25,
51,
2,
21,
8,
-14,
39,
11,
-24,
-40,
-6,
58,
15,
-20,
27,
-15,
-27,
-27,
9,
-21,
0,
24,
18,
21,
70,
23,
6,
2,
-46,
0,
-10,
-55,
-48,
14,
-1,
-25,
-1,
-18,
-8,
15,
-40,
-5,
35,
-29,
38,
-22,
44,
-3,
30,
22,
-14,
24,
37,
-51,
-39,
-19,
10,
70,
11,
-32,
-29,
-4,
9,
85,
10,
15,
25,
5,
-47,
-2,
-44,
-56,
18,
-30,
-24,
18,
-2,
0,
35,
-9,
36,
-42,
-73,
-24,
25,
15,
10,
9,
-34,
59,
14,
0,
23,
31,
-4,
25
] |
North, J.
Plaintiff is the widow and the administratrix of the estate of Zigmond Mogyoros who died April 4, 1930. Deceased was insured in defendant company under two policies totaling $758.61. On April 8th defendant paid the insurance in full to Klara Mogyoros, mother of deceased. At the time of Mogyoros’ death the widow was a minor. There are also two children surviving deceased, the younger being a posthumous child. The widow as administratrix brought this suit to recover the amount of the insurance carried by deceased. Defendant made a motion to dismiss plaintiff’s suit on the ground that “the claim or demand set forth in the plaintiff’s pleading has been released.” From the affidavit in support of the motion to dismiss it appears that these insurance policies were of the so-called “industrial type” and each contained a “facility of payment” clause which, omitting immaterial provisions, reads as follows:
“Facility of payment: It is understood and agreed that the said company may make any payment, or grant any nonforfeiture privilege provided for in this policy to any relative by blood or connection by marriage of the insured, * * * and the production by the company of receipt signed by any or either of said persons, or of other sufficient proof of such payment or grant of such privilege to any or either of them, shall be conclusive evidence that such payment or privilege has been made or granted to the person or persons entitled thereto, and that all claims under this policy have been duly satisfied. ’ ’
It further appears from the affidavit in support of the motion to dismiss, and is undenied in this record:
“That after the death of the said Zigmond Mogyoros, one Klara Mogyoros furnished to the defendant, through deponent’s office, certain proofs of death of said Zigmond Mogyoros and the said Klara Mogyoros at the same time delivered to defendant’s agents the said policies of insurance, the premium receipt hooks and the attending physician’s certificate of death, etc., and made claim for the proceeds of the said insurance as a relative by blood of the said Zigmond Mogyoros, to-wit, as his mother.”
Thereupon defendant paid the insurance to the mother of deceased and took from her a receipt therefor incident to her indorsement upon defendant’s check by which the payment was made. It is upon this showing and evidently under the practice provided in Court Rule No. 18 (1933), that defendant moved the trial court to dismiss plaintiff’s suit. At the hearing of the motion plaintiff filed a counter-affidavit in which she set forth that the payment of the insurance by defendant was “made without the consent of this deponent and against her will. ’ ’ And further:
“That the agent of said defendant knew the conditions and circumstances at the time the deponent’s husband died; that this deponent was in ill health and unable to attend to her business, and that the insured was the father of minor child.
“Deponent further says that the funeral expenses of her husband, and other expenses were paid out of certain $1,100 death benefit paid by a fraternal lodge.
“Deponent further says that the defendant has disregarded her rights, and the rights of the two minor children, the survivors and the beneficiaries of Zigmond Mogyoros.”, .. .
The trial court granted defendant’s motion to dismiss and plaintiff’s appeal presents the following question:
“Is a motion to dismiss the proper pleading to raise the defense that the insurance company had been discharged from any further liability by reason of the payment to Klara Mogyoros ? ’ ’
The record discloses that there is no dispute of fact between these parties as to the controlling issue. Payment is admitted, at least not denied. The right of defendant to make such payment and assert the same as a discharge of or release from its contractual obligation is a question of law. Whether wisely or unwisely, deceased in his lifetime saw fit to enter into this contract of insurance with defendant. Plainly and specifically it provides that “payment” may be made to any blood relative or connection by marriage of the insured and thereby all claims under the policy shall have been “fully satisfied.”
This contract in this particular is no different than A’s promissory note payable to B or C. Payment by A to B is a satisfaction of the obligation and C may not be heard to complain. Park v. Parker, 216 Mass. 405 (103 N. E. 936). See, also, 8 C. J. p. 597, note 57, citing numerous cases.
“Where two or more persons are joint creditors, payment may ordinarily be made to any of them, even though some are minors, unless it is otherwise agreed by all the parties.” 48 C. J. p. 590.
The policies in suit contained other contingent provisions as to payment “to any person appearing to said company to be equitably entitled to the same;” but these provisions are not here involved. When payment is made under such provisions, the insurer must exercise caution and good faith. That issue was involved in Sylvester v. Metropolitan Life Ins. Go., 255 Mich. 302. It is not presented in the instant case and therefore the cited decision is not controlling of the case before us on this appeal. As bearing upon this phase of the case, see Jones’ Administrator v. Prudential Ins. Co., 225 Ky. 238 (8 S. W. [2d] 412).
The order and judgment of the trial court granting defendant’s motion to dismiss was justified by the record and is affirmed. Costs to appellee.
Nelson Sharpe, C. J. and Potter, Fead, Wiest, Butzel, Bushnell, and Edward M. Sharpe, JJ., concurred. | [
17,
-36,
-9,
-19,
22,
-27,
18,
-52,
23,
4,
-37,
0,
26,
76,
-47,
-1,
24,
-51,
29,
-11,
13,
-35,
-49,
-19,
-9,
25,
-38,
4,
-11,
-38,
-44,
17,
-10,
-38,
-9,
18,
-13,
-10,
-74,
24,
-11,
-58,
49,
32,
-39,
7,
28,
24,
-28,
49,
12,
-30,
26,
-16,
-9,
-51,
18,
39,
22,
1,
-14,
-52,
67,
-45,
15,
46,
57,
28,
-19,
4,
28,
3,
-23,
-4,
-5,
6,
-54,
1,
43,
-5,
28,
-73,
-6,
5,
17,
50,
-69,
11,
-14,
56,
-4,
26,
-29,
7,
-4,
49,
11,
69,
-20,
66,
-6,
-16,
-25,
37,
57,
30,
2,
-53,
-46,
41,
14,
-14,
35,
7,
46,
38,
-9,
-9,
-32,
-42,
1,
25,
29,
18,
1,
46,
30,
13,
5,
-6,
18,
-10,
-3,
-47,
-28,
-20,
8,
-30,
-17,
-10,
25,
-17,
-2,
35,
-25,
39,
8,
-37,
-25,
-19,
-6,
29,
-21,
22,
33,
-13,
-48,
-21,
1,
-29,
1,
-52,
39,
18,
-20,
-18,
32,
-4,
21,
-8,
37,
-33,
18,
-31,
6,
22,
39,
-50,
-27,
17,
-32,
-24,
-18,
7,
41,
-38,
-24,
0,
33,
29,
45,
-47,
15,
-1,
-23,
48,
-12,
70,
7,
-26,
47,
-24,
39,
-68,
55,
7,
33,
-25,
-16,
-11,
44,
-16,
-10,
-40,
-80,
-20,
-82,
-50,
-57,
-6,
-18,
-24,
-3,
34,
-19,
-11,
-54,
-22,
26,
-6,
11,
14,
-23,
60,
-15,
58,
-14,
-47,
0,
14,
-17,
34,
17,
-58,
41,
40,
-20,
42,
-8,
-19,
10,
0,
-44,
64,
-25,
-3,
8,
31,
35,
16,
-62,
50,
-45,
20,
28,
2,
28,
-22,
2,
55,
36,
21,
65,
-74,
-9,
-74,
24,
33,
13,
11,
27,
31,
-20,
-64,
-38,
-2,
-13,
-10,
-8,
-12,
24,
41,
-34,
-10,
30,
31,
-14,
-22,
-22,
35,
-41,
20,
89,
-15,
27,
-8,
-47,
-4,
-20,
8,
-4,
10,
-5,
-29,
20,
15,
-49,
-54,
23,
20,
35,
19,
-15,
8,
12,
-36,
1,
-40,
14,
23,
-24,
0,
20,
-20,
-8,
-75,
-21,
-1,
-36,
-42,
0,
18,
26,
-9,
-51,
22,
34,
6,
-67,
-37,
-81,
-4,
39,
10,
-34,
46,
56,
-14,
-27,
64,
16,
13,
13,
-5,
-2,
-12,
3,
-10,
7,
46,
29,
-26,
-59,
-36,
-28,
2,
-60,
40,
28,
15,
-19,
-36,
-4,
29,
15,
59,
19,
-18,
-6,
7,
-12,
-6,
-31,
27,
-11,
13,
-44,
-2,
2,
-20,
9,
45,
9,
50,
-36,
35,
-2,
-47,
-64,
19,
14,
-55,
-4,
-32,
19,
5,
51,
-71,
8,
-26,
47,
16,
0,
18,
-1,
-56,
-16,
9,
31,
-53,
-30,
63,
-22,
13,
21,
-44,
-70,
2,
7,
0,
-32,
-4,
9,
14,
-8,
21,
-20,
10,
57,
-25,
-20,
26,
18,
-8,
1,
-20,
-42,
14,
10,
2,
-6,
10,
31,
0,
20,
17,
-24,
51,
47,
16,
-21,
-12,
-45,
0,
11,
-11,
37,
-19,
-2,
3,
-11,
49,
42,
-67,
16,
-13,
23,
-37,
0,
-22,
-18,
-69,
-19,
6,
-11,
-20,
-38,
3,
-4,
-64,
-24,
-5,
68,
19,
15,
-33,
0,
-18,
16,
13,
-43,
-48,
26,
-13,
0,
30,
33,
26,
63,
-1,
33,
-18,
-23,
81,
12,
-38,
-10,
-30,
3,
26,
-9,
15,
1,
28,
4,
-47,
-11,
16,
28,
-46,
-18,
63,
-16,
11,
-11,
-33,
3,
18,
0,
-5,
48,
-43,
-14,
16,
24,
-5,
52,
-16,
-25,
0,
-20,
-29,
-14,
-7,
-2,
-41,
-28,
-43,
38,
-38,
-51,
-43,
-9,
4,
-32,
-30,
-8,
10,
-30,
23,
-12,
-17,
4,
2,
-33,
47,
50,
17,
-6,
-16,
-10,
-2,
5,
-9,
35,
20,
22,
-26,
0,
-20,
1,
-32,
-54,
-21,
-32,
26,
-1,
37,
18,
-50,
-5,
7,
-7,
-10,
4,
0,
27,
-43,
27,
-16,
4,
-1,
21,
58,
-23,
33,
6,
43,
21,
73,
3,
-77,
15,
-39,
15,
-49,
-18,
55,
-51,
33,
-17,
23,
27,
11,
-35,
-53,
13,
-36,
4,
-17,
-18,
55,
51,
11,
-44,
12,
-6,
19,
2,
-1,
1,
-45,
-39,
6,
62,
11,
98,
-28,
-6,
-9,
-1,
-12,
10,
-29,
-35,
3,
21,
-2,
-33,
44,
-1,
16,
26,
40,
-40,
36,
23,
0,
-17,
-9,
-38,
6,
-27,
24,
-6,
36,
11,
-25,
22,
27,
37,
42,
9,
22,
-17,
-17,
-27,
-47,
0,
-24,
-7,
18,
0,
-33,
-52,
28,
20,
12,
23,
-41,
-7,
-56,
-14,
26,
-4,
-23,
41,
63,
30,
4,
-1,
8,
-24,
-12,
-35,
22,
11,
-42,
-1,
-5,
-5,
-8,
36,
-18,
-3,
10,
2,
-9,
25,
17,
-4,
48,
14,
-32,
-8,
-31,
24,
26,
-1,
0,
-20,
18,
10,
35,
-1,
28,
-6,
2,
40,
-41,
-21,
-6,
-17,
-22,
-12,
22,
44,
1,
-3,
5,
14,
6,
8,
17,
31,
-31,
-14,
-25,
2,
42,
10,
-44,
24,
15,
-31,
29,
-4,
-49,
-8,
21,
9,
5,
-30,
64,
27,
-5,
-36,
3,
-11,
-8,
-18,
-17,
37,
-44,
-41,
6,
-43,
-2,
-35,
-13,
8,
53,
7,
43,
-47,
-7,
-25,
-17,
2,
24,
-3,
-46,
-53,
-8,
-7,
68,
38,
14,
-47,
-55,
3,
5,
-20,
111,
17,
24,
15,
-18,
-15,
-16,
22,
-51,
34,
14,
3,
-34,
2,
-73,
-4,
14,
-14,
-64,
-9,
-30,
37,
28,
13,
44,
-11,
-44,
22,
-6,
-69,
-48,
6,
66,
26,
-45,
45,
-7,
-20,
33,
-71,
-9,
-76,
31,
76,
-7,
-22,
-8,
11,
43,
7,
-46,
-55,
15,
-28,
-53,
83,
6,
3,
-29,
-20,
-16,
-25,
39,
7,
-41,
0,
22,
53,
3,
30,
23,
-26,
36,
36,
58,
-82,
34,
-29,
-98,
-5,
26,
2,
5,
127,
7,
-15,
24,
-9,
-21,
7,
81,
67,
-40,
-29,
-9,
-50,
-2,
55,
18,
-19,
14,
-5,
35,
56,
-24,
33,
19,
34,
4,
4,
49,
-41,
-23,
23,
-13,
-40,
25,
67,
8,
-36,
-2,
0,
-27,
2,
25,
26,
-21,
40,
-9,
-40,
-34,
-17,
-103,
11,
28,
-33,
13,
29,
6,
-47,
36,
-8,
7,
-11,
-31,
-19,
-19,
26,
0,
-68,
9,
59,
-2,
47,
13,
-39,
-5,
0,
-16,
28,
0,
24,
1,
49,
33,
50,
-20,
-8,
-13,
0,
22,
-7,
34,
-3,
-38,
-48,
-14,
-2,
-18,
45,
32
] |
Cabr, J.
This action for damages, based on alleged fraudulent representations concerning certain property, was instituted by summons issued from the circuit court of Wayne county on November 20, 1957. The declaration was filed December 19th following. Defendants Covey filed answer, with notice of counterclaim. On behalf of defendants Hackett motion to dismiss the declaration was submitted, asserting that the pleading was “ambiguous and fails to distinguish as between the parties hereto; fails to set forth what written instruments as were entered into by and between the parties hereto; fails to set forth who entered into the said written instruments and fails to state any cause of action whatsoever against defendants, D. Wayne Hackett and Stella Hackett.”
A written statement designated as an affidavit was filed in support of the motion, alleging the execution of a lease by defendants Hackett, as lessors, to the plaintiff, covering certain premises in Washtenaw county, Michigan, and further asserting that they did not sell any equipment or engage in the sale ■of any business, and that they made no representations other than those set forth in the lease. It was further alleged that plaintiff vacated the premises without notifying defendants Hackett. Whether the statement filed was given consideration does not appear.
Presumably for the reasons set forth in the motion an order was entered by the trial court dismissing the case against defendants Hackett, with prejudice, but without costs. Plaintiff has appealed on the ground that such order was erroneously en tered. It is urged on behalf of appellant that the declaration sufficiently set forth the essentials of her cause of action, and that she should be permitted to go to trial against all the defendants.
The motion to dismiss the declaration was filed in accordance with Michigan Court Rule No 17, § 7 (1945), which reads as follows:
“Demurrers are abolished, and whenever any pleading at law or in equity is deemed to be insufficient in substance, a motion to dismiss or to strike or for judgment on the pleading may be made, or the objection may be made in the answer or reply, and whenever any such pleading is deemed to be indefinite. uncertain or incomplete, a further and better statement of the nature of the claim or defense or further and better particulars of any matter stated in any pleading may be ordered on motion, upon such terms in any case, as to costs and otherwise, as may be just.”
Section 9 of Rule No 17, as amended, effective April 1, 1953 (335 Mich lxii), further provides that the trial court may upon its own motion, whenever any pleading is deemed indefinite, uncertain or incomplete, require the filing of an amended pleading. In accordance with said rule all pleadings must contain a statement of the facts on which the party filing same relies in presenting his cause of action or defense. It is contemplated that declarations and answers shall be as brief as reasonably possible without averments of matters of evidence, facts of which judicial notice may be taken, or extraneous matters not necessary to be proved, except when specially required by statute or rule.
The question presented is whether plaintiff’s declaration in the instant case is in substantial compliance with the provisions of the court rule cited. It is alleged therein that on or about the 2d of July, 1957, the defendants were the owners of certain prem ises, known as Covey’s Drive-In, which they were .offering for sale, and that the plaintiff became interested in acquiring the property and entered into an agreement for the purchase thereof, paying to defendants certain sums of money by way of fulfillment of the provisions of said agreement. The pleading further averred that at the time of the transaction in question the defendants were engaged in a conspiracy to injure and defraud the plaintiff by making material representations to her concerning the premises. Specifically it was charged that defendants asserted that the business operations at Covey’s Drive-In had been prosperous, and that the premises could be adequately heated and ventilated by the system installed for that purpose.
The declaration further set forth that in furtherance of the claimed conspiracy the defendants, immediately following plaintiff’s taking possession of the premises, removed and destroyed certain electric signs used in connection with the business, as a result of which the premises were rendered dark during the evening and nighttime hours. Plaintiff further averred that she relied on the representations of the defendants as to the success of the business that had been conducted on the premises and with reference to the heating and ventilating system, that such representations were in fact false and fraudulent, that they were made with intent that plaintiff should rely upon them, and that, in consequence of such reliance, she suffered substantial damages. She alleged, also, that .upon learning that the premises could not be heated, and following the alleged unlawful removal of the electric signs, she had demanded the return of the money that she had paid, offering to return the business, with possession of the premises, to the defendants upon the payment of damages.
It must "be conceded that in some respects thm declaration is lacking in certainty. It does not set forth plaintiff’s claim as to which of the defendants were the owners of the property, or which of them made the alleged false and fraudulent representations concerning the business and the heating and ventilating system. Neither does it appear when such representations were made with reference to the consummation of the agreement for the purchase of the premises. There is an absence of averments as to the nature of the relationship between the defendants, and the acts of each in carrying out the claimed conspiracy. The objections to the declaration as set forth in the motion to dismiss were not without merit. However, an examination of the pleading discloses that it alleged a transaction involving the purchase of property by plaintiff, the making of material representations concerning the property and business conducted therein, reliance thereon by the plaintiff to her damage, and that the defendants conspired among themselves to accomplish the result of which plaintiff complained. Obviously if there was a conspiracy the acts of each conspirator in the course thereof, and made for the purpose of accomplishing its objective, would be chargeable to all participants therein.
This Court has repeatedly recognized that the chief object of a declaration is to apprise the opposite party of the cause of action and the claims of the plaintiff. Eberbach v. Woods, 232 Mich 392, 396; Michigan Aero Club v. Shelley, 283 Mich 401, 408 (1938 US AvR 134, 1 CCH Av 750); Leslie v. Mendelson, 302 Mich 95, 103. The question is presented, in consequence, whether plaintiff’s pleading in the instant case fairly serves the purpose contemplated by accepted rules of practice.
Based on prior decisions of this Court, it is said in 19 MLP, Pleading, § 8, p 12, that:
"“In connection with declarations, as with other pleadings, there has been increasing liberality in upholding the pleading without regard to technical restrictions as to form. The principal requirements of a declaration are that it state a cause of action and that the facts be alleged with sufficient particularity to reasonably inform the defendant of the nature of the cause of action. Accordingly, our Supreme Court has said that the purpose of a declaration is to advise the defendant as to the nature of the plaintiff’s claim, and that the chief object of a declaration is to plainly apprise the opposite party of the cause of action and the claim of the plaintiff.”
Among decisions in accord with the text quoted are Spelman v. Addison, 300 Mich 690; and Pfaffenberger v. Pavilion Restaurant Company, 352 Mich 1.
The principles commonly recognized in determining the sufficiency of pleadings are summarized in 41 Am Jur, Pleading, §77, pp.343-345, as follows:
“The plaintiff’s declaration or complaint should contain a direct and positive averment of all the ultimate facts, as distinguished from evidentiary facts, necessary to state a cause- of action in the plaintiff’s favor and against the defendant, followed - by a demand or prayer for the relief to which the plaintiff claims to be entitled. The probative facts necessary to prove such ultimate facts should not be pleaded. Neither is it necessary for him to plead facts of which the court takes judicial notice, and consequently, he is not required to plead a public statute, when his cause of action is based thereon, although when his action is based upon a private statute or a municipal ordinance or the law of another State, such laws and ordinances must be pleaded as any other fact. The facts making up the cause of action should be set forth in their logical order, in ordinary and concise language, but with the requisite degree of certainty required by general rules of pleading. Every material fact essential to the existence of the plaintiff’s cause of action, and which he must prove to sustain his right of recovery, must be averred, in order to let in proof thereof. Every issue must be founded upon some certain point, so that the parties may come prepared with their evidence and not be taken by surprise, and the jury may not be misled by the introduction of various matters.
“Notwithstanding changes that have been introduced by modern systems of pleading, it still remains the duty of the plaintiff to state his cause of action in his declaration, complaint, or petition, and the right of the defendant to be apprised thereby of the facts which are believed to constitute the plaintiff’s cause of action. The plaintiff’s allegation must be such, if proved as laid, as to show as a matter of law the essential elements of a cause of action in his favor, and a cause of action should be so stated that the court may determine its character as ex contractu or ex delicto, although it is not necessary for the plaintiff in so many words to state the character of his action as ex delicto or ex contractu. On the other hand, a pleading properly drawn should contain no further allegations than thus indicated. It is not required that the plaintiff aver any fact which is not necessary to his right. He is not required to state the circumstances tending to prove the facts alleged, — the character of the evidence upon which he intends to rely, — or to anticipate matters of defense which the defendant may possibly set up. In general, the complaint or petition is sufficient if its allegations state facts upon which the plaintiff relies for a recovery, and if it adequately advises the defendant of the charge so as to enable him to prepare his defense.”
Applying the general principles heretofore approved by this Court, we conclude that the case should not have been dismissed as to defendants Hackett. The statement filed by defendants Hackett in support of their motion indicated that they were not misled as to the nature-of plaintiff’s claimed cause of action. In lieu of dismissal the court might more properly have required the filing of an amended declaration setting forth plaintiff’s claims in more specific form and detail than in the pleading filed. Defendants are entitled to a clear and concise statement of plaintiff’s cause of action, with reference to their conduct, individually and collectively, to the end that they may properly prepare and present any defense that they may have in the case.
An order will enter remanding the case to the trial court with directions to set aside the order from which plaintiff has appealed, and for further proceedings, requiring, however, in accordance with Court Rule No 17, § 9 (1945), as amended, that plaintiff shall within 15 days after notice of this remand file a more certain, definite and complete declaration, with particular reference to the objections urged by appellees to the pleading involved herein. In view of the nature of the case and the disposition as above indicated, no costs are allowed.
Dethmers, C. J., and Kelly, Smith, Black, Edwards, Yoelker, and Kavanagh, JJ., concurred. | [
-41,
-15,
2,
0,
11,
-8,
58,
-20,
-36,
23,
25,
-58,
-12,
18,
7,
-36,
38,
-29,
-26,
-35,
1,
-36,
7,
-32,
-17,
16,
31,
-58,
6,
10,
-28,
-19,
-18,
32,
10,
-27,
-11,
-2,
-30,
48,
-23,
-10,
64,
-19,
32,
-21,
-6,
-16,
31,
-21,
19,
-3,
-1,
-23,
-83,
-45,
-22,
-16,
26,
-9,
-29,
10,
21,
-18,
-48,
-48,
-1,
-10,
-7,
-18,
8,
3,
19,
-32,
-52,
-49,
-35,
4,
16,
16,
46,
-9,
25,
0,
-13,
2,
25,
-19,
-35,
-57,
-19,
64,
-24,
9,
40,
7,
18,
28,
28,
-13,
-9,
52,
-20,
22,
5,
7,
-20,
-60,
-20,
-8,
-14,
18,
16,
-44,
22,
-54,
-20,
-37,
29,
-58,
31,
-9,
30,
2,
13,
58,
47,
-24,
15,
87,
64,
-14,
13,
8,
-7,
0,
28,
18,
-29,
-18,
31,
-30,
-11,
-21,
1,
50,
17,
3,
1,
-44,
-11,
36,
-9,
77,
-45,
20,
14,
-38,
0,
-22,
43,
-27,
-11,
-15,
-28,
10,
18,
13,
22,
-25,
2,
-1,
-41,
-15,
-13,
29,
-17,
38,
-30,
-21,
53,
40,
2,
-9,
10,
-43,
-6,
-11,
16,
7,
39,
-28,
-24,
52,
14,
11,
-7,
21,
18,
-45,
16,
-31,
12,
-46,
-31,
25,
-9,
-51,
-4,
-17,
-16,
-35,
-12,
-13,
-3,
-5,
62,
-38,
36,
14,
2,
-27,
24,
31,
-43,
-13,
0,
-60,
21,
13,
6,
9,
-24,
6,
-47,
-26,
2,
10,
45,
25,
-60,
-37,
17,
-35,
25,
-7,
41,
-2,
9,
8,
12,
-3,
-53,
5,
-34,
-17,
-11,
12,
-23,
20,
-33,
51,
-38,
-20,
20,
20,
24,
38,
-30,
-12,
47,
4,
-16,
67,
11,
-35,
-36,
27,
38,
28,
-35,
-10,
-10,
-31,
-16,
27,
-21,
-3,
0,
12,
-23,
-31,
1,
0,
1,
14,
-21,
-96,
16,
15,
6,
-11,
10,
-30,
-18,
-71,
-12,
-11,
-35,
-10,
-21,
48,
14,
-5,
62,
-7,
49,
-2,
-5,
-13,
44,
25,
-11,
53,
-50,
1,
62,
3,
-6,
28,
-15,
-9,
-6,
-31,
-6,
2,
6,
-50,
-44,
-26,
16,
-9,
-18,
-1,
-70,
37,
-2,
-57,
-40,
-22,
-42,
-32,
-7,
-11,
-2,
21,
13,
-27,
-49,
42,
-24,
36,
-28,
-18,
45,
43,
-31,
-43,
-12,
93,
-15,
5,
-29,
-28,
-28,
-34,
-5,
13,
-34,
60,
1,
-70,
-37,
10,
53,
7,
-22,
-31,
-4,
13,
-57,
3,
62,
-15,
-2,
-29,
1,
22,
-36,
23,
14,
52,
7,
4,
-60,
4,
32,
-61,
10,
50,
-13,
-18,
-19,
31,
-29,
-6,
36,
31,
15,
9,
47,
17,
10,
-50,
4,
-42,
62,
-46,
2,
3,
-2,
18,
28,
-11,
59,
60,
-43,
-2,
9,
-5,
-10,
-7,
-4,
0,
38,
0,
-26,
23,
-19,
-48,
17,
-5,
-20,
-39,
13,
21,
9,
14,
10,
-10,
18,
-31,
-8,
-12,
-33,
10,
32,
-34,
10,
19,
-14,
19,
-30,
10,
-33,
27,
40,
-51,
5,
35,
-7,
61,
31,
-37,
-22,
6,
-7,
-30,
39,
-37,
16,
-26,
-1,
53,
-11,
-2,
-60,
24,
-20,
15,
4,
3,
0,
25,
54,
-7,
-25,
19,
4,
47,
-29,
17,
17,
-57,
-53,
55,
57,
2,
27,
28,
-23,
2,
-7,
1,
-2,
-40,
7,
69,
20,
18,
77,
-16,
34,
-16,
-39,
16,
5,
7,
37,
30,
6,
46,
14,
29,
-4,
-9,
-39,
-42,
3,
29,
2,
-34,
12,
49,
-8,
56,
-36,
-19,
7,
-36,
0,
-19,
28,
8,
36,
-26,
20,
-22,
26,
-9,
2,
-16,
75,
-18,
-36,
33,
13,
-26,
19,
-35,
-29,
29,
-7,
-3,
-40,
-2,
21,
-5,
9,
-5,
-15,
-35,
8,
-23,
12,
-47,
-13,
-28,
0,
26,
28,
-33,
-40,
-24,
14,
2,
-9,
-1,
-7,
-48,
45,
-9,
-6,
-7,
57,
26,
-4,
-42,
36,
60,
50,
-3,
56,
-22,
9,
-2,
-6,
-24,
20,
22,
-20,
-31,
-7,
2,
-8,
11,
-11,
26,
-39,
-32,
-23,
41,
-29,
36,
2,
-1,
-4,
-10,
-2,
-11,
-34,
33,
-35,
-13,
5,
-21,
11,
-20,
-4,
-35,
-14,
-20,
0,
-1,
7,
-19,
48,
10,
49,
0,
25,
0,
9,
65,
34,
-29,
-38,
14,
38,
41,
13,
-9,
9,
-29,
-6,
-13,
-19,
44,
-14,
-10,
0,
11,
-32,
-10,
8,
15,
-4,
4,
17,
-4,
9,
-30,
41,
19,
-40,
-32,
-14,
-5,
24,
4,
-22,
14,
20,
-73,
0,
20,
-33,
23,
-9,
-41,
-40,
-9,
21,
-31,
10,
-46,
62,
-19,
52,
-35,
18,
35,
10,
-43,
6,
25,
9,
-19,
-28,
25,
42,
-15,
-25,
0,
22,
-20,
13,
62,
16,
10,
8,
-5,
17,
36,
58,
11,
-10,
-40,
0,
-33,
1,
15,
-9,
-68,
-8,
14,
-35,
-5,
42,
-5,
-34,
52,
-57,
-69,
-11,
10,
-7,
-22,
20,
-4,
32,
2,
5,
-10,
0,
15,
30,
-22,
16,
6,
-15,
7,
-34,
-68,
-1,
44,
18,
-23,
-31,
11,
14,
-5,
33,
77,
20,
10,
-41,
-1,
0,
-42,
6,
5,
23,
-64,
-41,
13,
-8,
60,
11,
-40,
6,
13,
-11,
45,
0,
30,
-32,
-14,
-23,
-4,
18,
-59,
40,
0,
-4,
34,
0,
-5,
16,
10,
-32,
-47,
-17,
53,
-2,
1,
-7,
-22,
-4,
-16,
-7,
33,
-28,
26,
-6,
24,
2,
0,
-42,
-17,
24,
17,
-18,
-16,
1,
-39,
-11,
-33,
-9,
23,
22,
14,
-34,
-11,
-5,
-42,
11,
-22,
29,
8,
-15,
2,
-44,
-3,
-7,
-1,
43,
-45,
-47,
8,
65,
26,
21,
5,
-19,
12,
3,
-76,
33,
-25,
-1,
-20,
-9,
-8,
18,
27,
35,
-7,
8,
7,
27,
-27,
8,
33,
-9,
-1,
26,
7,
32,
8,
24,
8,
-7,
-32,
-16,
-22,
32,
40,
7,
33,
-11,
25,
-9,
-1,
40,
-43,
-23,
-17,
23,
6,
5,
-15,
12,
-6,
33,
-12,
2,
1,
-17,
17,
-37,
0,
22,
45,
-15,
2,
50,
-43,
-45,
-23,
8,
20,
-7,
-6,
3,
-17,
-8,
12,
23,
47,
-32,
40,
-20,
-20,
-23,
-15,
16,
20,
-46,
6,
14,
-53,
-16,
13,
47,
-16,
-21,
-32,
-41,
-18,
9,
65,
11,
-36,
-34,
1,
12,
-32,
-11,
-15,
28,
7,
40,
-5,
79,
-30,
19,
32,
24,
58,
-16,
3,
15,
79,
-38,
38,
-70,
10,
-25,
9,
34,
28,
22,
38
] |
Kelly, J.
Plaintiff, while employed as a plasterer by one Michael Santoro, at a hospital in Royal Oak, was injured when he was struck by falling scaffold planks which defendants were using in cleaning the outside of the hospital building. Santoro’s workmen’s compensation carrier (Michigan State Accident Fund) paid $2,952.78 to plaintiff as compensation benefits, surgical and medical expenses. Subsequently plaintiff instituted a lawsuit in Macomb county circuit court. The employer’s compensation carrier supplied plaintiff’s attorneys the results of its investigation and medical reports. A settlement of $9,500 was agreed upon in the law action, and judgment entered therefor. The carrier did not participate in the lawsuit, nor in the negotiations between plaintiff and the third party, defendants* counsel.
Plaintiff insisted that the carrier bear its proportionate share of expenses and attorneys’ fees in the circuit court action. The carrier filed a motion to intervene and when plaintiff’s objection was overruled, plaintiff filed a petition requesting an order from the court deducting $783.10 from the carrier’s recovery.
The trial court held that the carrier should recover the full amount of its payments, without being required to pay part of the expenses incurred by plaintiff in his circuit court law action. Plaintiff appeals.
The question presented has not been previously before this Court and our interpretation of Act No-155, as passed by the 1952 legislature (CLS 1956, §413.15 [Stat Ann 1957 Cum Supp § 17.189]), will ■determine our decision in this appeal. That part of said legislative enactment in dispute is as follows:
“In an action to enforce the liability of a third party, the plaintiff may recover any amount which the employee or his dependents or personal representative would be entitled to recover in an action in tort. Any recovery against the third party for damages resulting from personal injuries or death only, after deducting expenses of recovery, shall first reimburse the employer or its workmen’s compensation insurance carrier for any amounts paid or payable under the workmen’s compensation act to date of recovery, and the balance shall forthwith be paid to the employee or his dependents or personal representative and shall be treated as an advance payment by the employer on account of any future payment of compensation benefits.
“Expenses of recovery shall be the reasonable expenditures, including attorney fees, incurred in ■effecting such recovery. Attorney fees, unless otherwise agreed upon, shall be divided among the attorneys for the plaintiff as directed by the court. The expenses of recovery above mentioned shall be apportioned by the court between the parties as their interests appear at the time of said recovery.
“Compensation benefits referred to in this section shall in each instance include but not be limited to all expenses incurred under sections 4 and 8 of part 2 of this act, being sections 412.4 and 412.8 of the Compiled Laws of 1948.”
Appellant and appellee cite cases involving the New York statute, the New Jersey statute, and the longshoremen’s and harbor workers’ compensation act (33 USCA, § 933), but all of these are so dissimilar to the Michigan statute that they do not. assist in interpreting the section here involved.
The statute in question in unambiguous language provides that “expenses of recovery shall be the reasonable expenditures, including attorney fees, in curred in effecting such recovery,” and that these expenses of recovery “shall he apportioned hy the court between the parties as their interests appear at the time of said recovery.”
Who were the parties at the time of recovery? There can he but one answer: namely, plaintiff and the insurance carrier.
In In re Gay’s Estate, 310 Mich 226, 230, we said:
“Plain, unambiguous language in a statute leaves no room for judicial construction and must be given effect according to the plain meaning of the words.”
Applying this principle, we find that the trial court erred in ruling that the carrier should recover the full amount of its payment without sharing its proportionate part of the expenses incurred in the circuit court action.
Remanded, with instructions to enter order directing the Macomb county clerk to reimburse the Michigan State Accident Fund for the sums paid as compensation benefits and surgical and medical expenses, less its proportionate share of the expenses of recovery.
Reversed and remanded. Costs to appellant.
Dethmers, C. J., and Carr, Smith, Black, En-wards, Voelker, and Kavanagh, JJ., concurred. | [
-19,
20,
-46,
4,
-13,
6,
-8,
-41,
15,
-5,
31,
36,
35,
-8,
-3,
-28,
11,
-14,
-15,
-8,
-23,
-9,
8,
-6,
-37,
1,
63,
-7,
-2,
5,
-39,
27,
13,
2,
-32,
3,
35,
13,
-17,
15,
8,
-11,
33,
-44,
-6,
36,
61,
-7,
29,
-8,
10,
-8,
-52,
-20,
69,
-10,
11,
-21,
-34,
13,
-28,
9,
44,
25,
30,
-4,
-9,
50,
-20,
9,
-10,
61,
-3,
3,
-18,
-24,
-24,
3,
-10,
0,
1,
-6,
38,
-10,
-18,
-2,
-26,
-12,
0,
-14,
-41,
0,
-12,
41,
17,
-6,
-26,
-6,
7,
22,
-9,
37,
-8,
2,
-25,
6,
18,
-57,
-1,
39,
-47,
22,
15,
25,
-11,
7,
16,
-32,
0,
41,
52,
-6,
42,
-56,
-17,
40,
70,
27,
18,
47,
38,
-3,
0,
-20,
-56,
2,
3,
-49,
49,
55,
15,
-7,
-5,
-36,
11,
51,
-8,
-57,
-4,
-52,
4,
14,
26,
6,
13,
-14,
-32,
19,
12,
5,
32,
-9,
-5,
40,
-1,
-9,
17,
-8,
8,
21,
36,
-47,
22,
-81,
6,
46,
35,
35,
-84,
29,
0,
5,
0,
11,
20,
-21,
10,
-16,
9,
-27,
57,
-15,
-55,
-5,
-21,
33,
48,
17,
-2,
9,
2,
-77,
16,
16,
35,
40,
71,
14,
12,
-8,
21,
-39,
-54,
-32,
-1,
-8,
50,
-33,
-20,
-74,
-34,
-32,
27,
-32,
-22,
-10,
-26,
-44,
72,
-35,
-11,
-11,
21,
-6,
-28,
1,
-17,
-3,
94,
0,
4,
-18,
-44,
-45,
14,
-22,
-12,
-19,
-48,
4,
38,
-45,
14,
-22,
-22,
-22,
20,
58,
-33,
11,
-75,
44,
-6,
73,
19,
-30,
-24,
34,
-13,
3,
-49,
-6,
52,
-27,
-28,
-87,
0,
31,
28,
-20,
-9,
0,
-11,
-32,
-8,
57,
-5,
1,
12,
12,
36,
-64,
-14,
-58,
34,
19,
25,
-20,
-11,
17,
-28,
24,
-7,
20,
12,
-1,
-35,
13,
-1,
-12,
-4,
15,
-2,
-24,
51,
-10,
-40,
-9,
-9,
0,
8,
-4,
-25,
-22,
28,
-64,
16,
-34,
-3,
-26,
-30,
9,
0,
27,
-14,
-46,
-24,
7,
-6,
-9,
53,
23,
34,
17,
-16,
23,
11,
-25,
6,
13,
-27,
-5,
12,
39,
8,
-13,
0,
-18,
-40,
62,
42,
25,
-41,
-57,
-23,
20,
-34,
28,
11,
84,
23,
-2,
-33,
-25,
-78,
-13,
-12,
-2,
-41,
35,
19,
-11,
3,
-28,
20,
-79,
-15,
1,
-25,
6,
-11,
-25,
81,
32,
-7,
54,
-36,
-17,
-32,
0,
32,
2,
23,
39,
-16,
-56,
68,
-30,
-10,
37,
-9,
-40,
2,
20,
9,
4,
30,
-2,
-7,
-25,
106,
-8,
-25,
-75,
47,
-36,
-1,
12,
-63,
-1,
-16,
-31,
25,
-21,
39,
-21,
-46,
-20,
-45,
-11,
-32,
30,
-17,
-4,
6,
12,
-12,
45,
38,
-11,
-3,
11,
8,
59,
-58,
16,
-50,
-37,
16,
-27,
1,
-52,
-4,
-3,
24,
-18,
33,
28,
4,
-12,
11,
-14,
-29,
10,
-3,
12,
-2,
-13,
3,
30,
-12,
11,
-5,
-15,
-35,
6,
13,
32,
-13,
-26,
40,
-23,
-10,
-6,
25,
33,
-37,
25,
-25,
-13,
-34,
27,
-5,
-8,
40,
-60,
-2,
-48,
6,
-30,
-63,
-7,
37,
4,
-4,
8,
-31,
-2,
41,
18,
-38,
-2,
-48,
-8,
-11,
-25,
-21,
8,
17,
-20,
52,
-54,
17,
2,
-50,
5,
9,
45,
-2,
-18,
12,
31,
11,
24,
52,
-26,
-24,
0,
66,
5,
-36,
-12,
-14,
-18,
2,
-11,
41,
-6,
35,
-10,
-38,
-7,
8,
42,
28,
27,
-2,
-5,
53,
-18,
-15,
47,
7,
-26,
2,
-17,
-22,
5,
-50,
-33,
5,
-13,
-36,
4,
-52,
-21,
-9,
-10,
12,
-16,
-30,
31,
-10,
9,
26,
16,
-18,
-22,
38,
-11,
-15,
-57,
-64,
-16,
1,
17,
-5,
20,
75,
29,
12,
23,
-38,
-20,
-23,
-47,
-57,
14,
52,
48,
-8,
8,
19,
50,
7,
6,
43,
-19,
-12,
-29,
12,
22,
-8,
-21,
-10,
-3,
24,
49,
10,
-23,
27,
35,
10,
33,
-21,
-61,
41,
-23,
-69,
-15,
-45,
14,
-7,
38,
-13,
-28,
4,
2,
-5,
-7,
-1,
1,
12,
33,
-1,
32,
35,
-32,
36,
17,
32,
-1,
10,
21,
74,
-38,
-55,
28,
15,
15,
-8,
-14,
41,
36,
-46,
6,
-22,
0,
10,
-33,
-30,
37,
-19,
2,
32,
32,
21,
19,
34,
6,
-49,
17,
-22,
-9,
7,
65,
-26,
-29,
-3,
-5,
-11,
23,
-40,
-33,
31,
80,
-9,
13,
-24,
-7,
-17,
-60,
-4,
-34,
29,
-4,
-25,
-8,
-58,
-32,
-2,
-16,
14,
33,
-46,
5,
14,
-9,
-49,
38,
28,
6,
21,
8,
9,
-20,
-11,
33,
9,
88,
-21,
24,
-17,
26,
-50,
-22,
-10,
-41,
-32,
21,
-21,
-20,
-4,
-7,
-7,
-17,
-29,
17,
12,
-45,
-14,
58,
9,
-30,
9,
-10,
15,
-15,
-34,
-39,
54,
10,
33,
15,
-59,
-22,
-23,
-44,
8,
21,
-48,
3,
26,
-33,
-2,
-2,
37,
30,
-26,
3,
12,
41,
5,
-24,
-9,
-20,
23,
-30,
34,
11,
-29,
-39,
25,
20,
-6,
-2,
-44,
20,
0,
35,
-3,
10,
-14,
-40,
7,
-1,
-4,
-27,
-1,
11,
-15,
19,
-52,
-24,
13,
53,
-10,
-17,
-78,
-5,
51,
-2,
-48,
50,
28,
-10,
-39,
-3,
-32,
12,
-40,
-41,
16,
9,
13,
17,
-4,
-54,
-11,
-25,
15,
28,
-17,
-5,
-14,
12,
-1,
13,
2,
-65,
5,
25,
-24,
-15,
-9,
3,
4,
-18,
53,
-9,
-28,
17,
-18,
-22,
-27,
14,
-7,
-4,
-47,
49,
49,
36,
0,
-9,
37,
-46,
-39,
10,
39,
-18,
25,
1,
41,
34,
19,
25,
-15,
-68,
-19,
61,
-1,
-22,
4,
17,
-38,
11,
10,
45,
-41,
19,
1,
-6,
-6,
-26,
-24,
9,
49,
-2,
-34,
18,
-33,
-47,
23,
54,
44,
-1,
43,
-74,
-10,
34,
14,
12,
-10,
18,
-32,
21,
-5,
-5,
18,
38,
22,
0,
54,
51,
-22,
-48,
-10,
10,
-21,
18,
13,
-1,
-9,
13,
30,
-1,
-10,
-69,
-8,
-22,
-8,
28,
-83,
-63,
1,
-35,
34,
-7,
-12,
-5,
-3,
-52,
-25,
25,
-20,
-1,
-21,
-12,
-32,
26,
27,
19,
-4,
31,
32,
-26,
50,
19,
80,
0,
7,
3,
3,
36,
18,
20,
44,
39,
30,
0,
20,
64,
38,
-16,
-30,
76,
-60,
-14,
-13,
-23,
34,
13,
0,
50
] |
Btjshnell, J.
The facts of these two cases, which were consolidated by stipulation, are not disputed. Ethel Irwin, the wife of Frank Irwin, was injured in an automobile accident at the corner of Seward and Second avenues in the city of Detroit some time after 11 o’clock on the night of January 21, 1929. Marcus C. Mills, a salesman in the employ of defendant, was riding in a car owned by himself and being driven at the time by his friend, Earnest G. Gallagher, a railroad representative. Second avenue is a stop street which runs north and south and crosses Seward at right angles several blocks north of Grand Boulevard. Mills’ car, proceeding east on Seward, did not come to a stop before entering Second avenue, and collided with the car in which Mrs. Irwin was. riding.
Gallagher and Mills had known each other for several years and were in the habit of traveling together, visiting the same territory in the interests of their respective employers. On the night in question, they met by arrangement in the city of Mt. Clemens, from where they were to go to Flint, Saginaw, Bay City and Midland. Instead, they came to Mills’ home in Crosse Pointe, between Harper and Jefferson avenues, to get some samples. Leaving there for Flint on their most direct route, they picked up two women at the corner of Gratiot and East Grand Boulevard, and departed from their route in order to drive them to the vicinity of the Statler Hotel in downtown Detroit. The next stop was to be at a doctor’s office on Woodward avenue in the city of Highland Park on the direct route to Flint, in order to permit Gallagher to inspect some X-ray plates. Leaving the vicinity of the Statler, they finally proceeded north on Third avenue whichj at Seward, is two blocks west of and parallel with Woodward avenue. They were approaching Woodward avenue, by way of Seward, -when the accident occurred.
The trial court, hearing the case without a jury, held that defendant was not liable in that Gallagher, who was driving the car, was not an employee of defendant, and Mills was not at that time engaged in company business. The sole question raised by the appeal is whether Mills was acting in the course of his employment when the accident occurred.
Appellant claims that under the authority of Murphy v. Kuhartz, 244 Mich. 54, and Marchand v. Russell, 257 Mich. 96, the court was in error. Appellee rejects the Marchand Case as inapplicable. It contends that Riley v. Roach, 168 Mich. 294 (37 L. R. A. [N. S.] 834), and Brinkman v. Zuckerman, 192 Mich. 624, are controlling, and that if the holding in the Murphy Case is properly applied to the facts shown in the record, defendant must be relieved of responsibility.
Justice North collected the cases in Nevins v. Roach, 249 Mich. 311, and we there again held, quoting from Riley v. Roach, supra, to the effect that:
“The test of the liability of the master for his servant’s acts is whether the latter was at the time acting within the scope of his employment. The phrase ‘in the course or scope of his employment or authority’ when used relative to the acts of a servant, means while engaged in the service of his master, or while about his master’s business.”
Brinkman v. Zuckerman, supra, as indicated in Murphy v. Kuhartz, supra, is authority for the rule that, in ease of a departure from the route, the master is not liable until the servant gets back on a direct route to the place where his duty requires him to be. As applied to the instant case, Mills had not reached the direct route to Flint when he crossed Second at Seward. The effect of appellant’s argument would be to construe Murphy v. Kuhartz, supra, as holding that when a servant reaches a point less distant from his proper destination than the point of deviation, he would then re-enter the employment of his master. Such is not the meaning of the decision, nor is it a proper construction of the language of the opinion. The decision states:
“There are cases which hold that where a servant in driving his master’s truck so deviates from his regular route as to suspend the relation of master and servant, it is immediately restored when he starts to return. * * * But by better authority it is held that the relation of master and servant is not restored until he has returned to the place where, the deviation occurred or to a corresponding place, some place where, in the performance' of his duty, he should be.” ‘
The writer of the opinion determined from the facts presented that the driver, at the time of the accident, had reached a route where, in the performance of his duty, he should be, and then stated:
“When he reached this route at a point less distant than the last place of delivery, he had completed the trip which he had taken on his independent business and had re-entered the employment of his master. He was then engaged in no business of his own but was exclusively in the service of his master.”
The emphasis must be placed on the last sentence of the quotation. To place a different construction upon the decision would result in absurd applications of the rule. Cases would be determined by comparisons of distances rather than upon proper consideration of the facts. Servants who engage in larks or escapades of their own, wholly unrelated to the business of their master, would thereby subject the master to damages. Such is neither the contemplation of the law nor the intent of our holding in that case.
Mills was neither engaged “exclusively in the service of his master” when he met with the accident at Seward and Second, nor was he at a “place where in the performance of his duty, he should be.”
The fact that another was driving the car for Mills has no effect upon the result. As was said by Chief Justice Sharpe in Marchand v. Russell, supra, the car was an instrumentality used by Mills in the prosecution of the business of his employer and in the accomplishment of objects within his line of duty as an employee. The'fact that it was driven by Gallagher would not relieve Mills nor his employer from responsibility for a failure to exercise due care, if there were no other question to be determined in the case.
See, also, Cooper v. Interstate Motor Freight Co., 264 Mich. 131.
The question of whether Mills was an independent contractor is not raised by the pleadings. The court did not render an opinion setting forth the reasons for its decision, as required by Court Rule No. 37, § 11 (1933). We are aided, however, by the trial judge’s opinion denying the motion for new trial, in which he said:
“Of course, some leeway should be allowed for a driver’s judgment in the use of streets to attain his ultimate destination, but it does not follow that where an accident as grave and with injuries so painful resulting, such as this one, through the carelessness of a driver, that his principal must be called upon to respond in damages. From the record in this case, I felt and gave voice to my thoughts that Mills and Gallagher should have both been made defendants in this connection. * * * I still hold to that belief that if there is any liability at all, it is the personal liability of the driver of this car and that the defendant in no wise could be beholden for damages upon this record. ’ ’
The judgment is affirmed, with costs to appellee.
Nelson Sharpe, C. J., and Potter, North, Fead, Wiest, Butzel, and Edward M. Sharpe, JJ., concurred. | [
-5,
40,
11,
-25,
-19,
-14,
-5,
-37,
5,
-35,
-42,
-11,
52,
-48,
24,
7,
21,
12,
1,
0,
17,
-43,
-19,
0,
-53,
11,
19,
-40,
-49,
44,
-2,
17,
28,
23,
2,
1,
18,
-11,
-9,
-12,
-36,
17,
-25,
5,
33,
17,
59,
-3,
38,
-80,
-38,
-30,
-38,
44,
10,
-4,
7,
32,
-51,
18,
-18,
-23,
25,
5,
24,
-15,
7,
19,
23,
20,
-12,
-15,
-15,
-17,
-34,
13,
15,
18,
-11,
8,
-20,
5,
30,
-39,
-1,
3,
-40,
-7,
1,
-14,
-17,
-45,
-9,
29,
-1,
26,
-63,
-30,
9,
-17,
-42,
40,
5,
2,
5,
5,
4,
31,
55,
54,
0,
56,
18,
2,
35,
-40,
32,
-5,
-12,
26,
-1,
-10,
8,
59,
12,
-1,
-5,
7,
29,
-23,
15,
33,
30,
7,
-10,
4,
-30,
-14,
13,
27,
3,
16,
-34,
55,
43,
15,
-14,
17,
7,
-36,
-28,
-26,
28,
-19,
-10,
-54,
-12,
-7,
62,
16,
-36,
-49,
49,
51,
-39,
49,
-18,
31,
-34,
-17,
30,
13,
29,
-32,
33,
12,
-16,
-3,
-81,
-31,
-12,
16,
9,
-75,
-47,
-51,
5,
-17,
14,
-11,
29,
-20,
-39,
-24,
-47,
49,
5,
-27,
17,
-10,
66,
-16,
-9,
-12,
-28,
-12,
-14,
28,
0,
-2,
12,
-30,
4,
-35,
13,
29,
-44,
-65,
-9,
-47,
25,
-30,
19,
7,
-36,
-38,
-35,
-52,
25,
0,
61,
-13,
19,
32,
-62,
0,
22,
-33,
37,
7,
24,
-11,
21,
-10,
4,
16,
19,
4,
-17,
14,
33,
-9,
12,
-27,
0,
-18,
14,
-30,
38,
27,
-5,
59,
13,
53,
32,
-9,
0,
17,
-11,
-46,
6,
-35,
39,
16,
-55,
-86,
12,
68,
36,
54,
-32,
13,
-51,
-36,
19,
-19,
-53,
-16,
-20,
-9,
75,
-34,
1,
17,
-11,
32,
40,
-31,
-83,
54,
17,
57,
-11,
19,
43,
0,
-34,
-46,
15,
44,
0,
-18,
0,
-35,
24,
24,
36,
11,
14,
-19,
5,
58,
-23,
11,
6,
47,
-28,
-27,
-22,
-31,
-26,
53,
-11,
31,
-30,
-44,
8,
24,
28,
-12,
-20,
43,
-26,
5,
-30,
0,
36,
18,
18,
-12,
-15,
-50,
8,
-32,
-4,
17,
62,
-27,
-14,
-1,
21,
8,
16,
52,
-42,
-12,
-12,
-31,
4,
88,
18,
24,
-6,
31,
0,
-76,
40,
-1,
14,
73,
36,
-20,
-14,
-29,
-19,
40,
-47,
-38,
-66,
6,
-44,
-38,
33,
18,
9,
-25,
17,
34,
-29,
-39,
-17,
41,
23,
2,
-12,
-37,
-16,
-20,
18,
-14,
-42,
-12,
73,
17,
41,
-12,
44,
3,
-54,
-6,
12,
26,
-4,
-61,
9,
6,
22,
10,
-20,
9,
13,
4,
25,
-27,
0,
-44,
-53,
0,
4,
-29,
41,
23,
-16,
48,
15,
22,
-5,
25,
6,
-20,
57,
15,
60,
44,
-38,
7,
-14,
-16,
17,
-7,
-38,
-31,
7,
-27,
-3,
-14,
6,
-46,
0,
-19,
8,
5,
-15,
50,
32,
-9,
4,
2,
16,
15,
-50,
3,
-1,
9,
-42,
-51,
-50,
-18,
34,
38,
84,
-5,
-39,
-22,
6,
-9,
-4,
57,
-28,
-25,
-24,
-23,
-14,
-20,
30,
-34,
-8,
-19,
-14,
-1,
-24,
-51,
-2,
20,
23,
-7,
-11,
-12,
45,
-17,
16,
30,
14,
20,
-6,
-55,
42,
-22,
2,
-67,
50,
-29,
-22,
-7,
35,
-48,
-8,
49,
23,
-5,
-4,
-15,
-25,
-33,
-25,
-40,
16,
11,
23,
-34,
-22,
-3,
-21,
-87,
28,
26,
-17,
-5,
-37,
10,
-79,
-6,
24,
2,
41,
10,
-9,
-37,
47,
-35,
-48,
8,
19,
-62,
-21,
58,
2,
30,
-69,
21,
5,
7,
-69,
-1,
-70,
-2,
-39,
5,
-29,
20,
-1,
-19,
-9,
47,
69,
21,
18,
10,
-7,
-29,
81,
-15,
1,
46,
15,
7,
-46,
24,
54,
-22,
17,
8,
-30,
-2,
-14,
19,
-56,
13,
19,
-15,
63,
8,
-19,
-20,
32,
48,
-26,
41,
-43,
10,
-18,
-25,
-32,
-8,
-35,
-39,
27,
16,
-37,
13,
12,
26,
30,
35,
17,
0,
-48,
-3,
-30,
-16,
-14,
31,
-12,
-8,
-26,
4,
7,
1,
-59,
-7,
-18,
7,
-16,
-30,
-44,
-9,
-30,
0,
26,
34,
31,
12,
49,
10,
65,
13,
-19,
52,
35,
12,
33,
-11,
-11,
-3,
24,
1,
-75,
18,
8,
-29,
-16,
13,
-13,
-22,
-43,
9,
-4,
23,
13,
-41,
-13,
-13,
-11,
11,
-38,
3,
4,
-37,
0,
-36,
10,
17,
41,
-48,
-3,
88,
-37,
0,
-19,
-35,
-4,
8,
-24,
-66,
-8,
15,
-16,
-55,
17,
-4,
43,
-26,
17,
-31,
29,
24,
11,
-22,
-34,
-14,
4,
49,
-7,
39,
-65,
-40,
-2,
25,
27,
5,
-13,
35,
32,
15,
34,
-25,
33,
24,
-22,
-59,
-26,
-12,
-25,
1,
18,
-8,
-47,
-3,
-24,
-10,
-45,
-2,
2,
-4,
-30,
3,
-4,
-27,
-40,
-13,
-16,
-12,
-4,
15,
-37,
6,
21,
15,
39,
-25,
15,
-13,
20,
-50,
3,
3,
-29,
-5,
38,
7,
26,
17,
-19,
-19,
13,
-16,
18,
45,
53,
7,
26,
19,
7,
-62,
29,
23,
9,
24,
-41,
15,
26,
-24,
-13,
-49,
17,
-23,
14,
-2,
1,
-23,
54,
8,
-24,
22,
-10,
74,
31,
8,
-17,
-1,
30,
23,
-32,
37,
15,
13,
35,
65,
0,
-2,
-46,
-22,
-10,
-15,
-17,
-9,
-28,
-20,
39,
33,
-6,
-42,
-91,
-20,
25,
-12,
27,
-33,
-36,
21,
12,
47,
15,
-15,
-26,
0,
17,
-34,
-3,
34,
10,
-28,
36,
44,
-46,
-16,
-18,
-2,
-21,
24,
15,
44,
19,
-16,
-44,
-17,
-3,
44,
41,
-26,
-44,
22,
-12,
36,
-41,
0,
-11,
43,
-10,
-24,
20,
-6,
-9,
37,
-42,
13,
-56,
13,
46,
36,
9,
7,
-47,
-19,
-21,
7,
-27,
8,
2,
44,
2,
-49,
-15,
-48,
55,
22,
34,
9,
-63,
-59,
23,
2,
-23,
27,
-1,
-48,
39,
1,
-10,
51,
19,
0,
-22,
22,
-37,
-50,
-20,
3,
27,
20,
-6,
50,
17,
29,
23,
-26,
19,
-12,
33,
-38,
0,
38,
-16,
15,
44,
-22,
-18,
6,
-33,
-67,
1,
-4,
-2,
55,
30,
-41,
-27,
-68,
-24,
52,
-61,
0,
11,
36,
6,
30,
-2,
16,
38,
-13,
8,
-21,
45,
-1,
-21,
-1,
45,
-8,
73,
39,
-14,
30,
-29,
12,
36,
48,
-34,
-2,
-20,
-63,
-10,
67,
14,
13
] |
Reid, J.
This is a bill to enjoin peaceful picketing of plaintiff’s plant by defendant unions, it being alleged by plaintiff that the picketing is for the unlawful objective of compelling plaintiff to sign a closed-shop agreement which would thus coerce plaintiff’s plant employees into joining defendant unions against their (the employees’) will, contrary to the provisions of Act No. 176, § 17, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 8628-17, Stat. Ann. 1947 Cum. Supp. § 17.454 [18]), which is as follows:
“It shall be unlawful for any employee or other person by force, coercion, intimidation or threats to force, or attempt to force any person to become or remain a member of a labor organization, or for any employee or person by force, coercion, intimidation or threats, to force or attempt to force any person to refrain from engaging in employment. Violation of this section shall be a misdemeanor and punishable as such.”
Plaintiff is a Michigan corporation located at Kalamazoo and is engaged in quarrying, manufacturing and delivering sand, gravel and cement products. It is stipulated and agreed that plaintiff is not engaged in interstate commerce and that there is no question involved under the Federal law. Defendant Kalamazoo Building & Construction Trades Council is a union organization made up of all of the building-trades crafts, including truck drivers who haul material for building. Albert E. Ashenden is president and assistant business representative of defendant International Union of Operating Engineers, which has its headquarters in Washington, D. C., with a branch office at Detroit, which office is for the entire State of Michigan. Defendant George E. Standley is president of the Kalamazoo Building & Construction Trades Council. In March, 1946, a meeting was held at the Burdick hotel in Kalamazoo between the officers of the plaintiff company and some representatives of the unions, the purpose of the meeting-being to discuss organizing the plant employees of plaintiff company. There were present defendants Ashenden, James B. Hogg, a business agent of the defendant International Hod Carriers Building & Common Laborers Union of America, and Mr. Pat Brady, international vice president of one of the defendant unions, also, Mr. Cole representing the truck drivers union (not a defendant). At the meeting Mr. Ashenden asked Mr. Richard H. Butcher, president of plaintiff company, if he would sign a closed-shop contract. Mr. Butcher asked for two weeks to interview his association of gravel companies. About two weeks later a second meeting was held at the Burdick hotel between representatives of the company and representatives of defendant unions; also present were Mr. Stevens, a local contractor, and plaintiff’s attorney, Mr. Locke, who announced that he could not have his client sign a closed-shop contract. Defendant Ashenden commented on the fact that plaintiff already had a closed-shop agreement with the truck drivers. It was agreed that union representatives could come to the plant the following day and talk with the men and the next day defendants Standley, Hogg and Ashenden went to the plaintiff’s plant and were permitted to interview the employees but were unable to persuade the employees to join the union.
Plaintiff has about five laborers at the plant and two crane operators. Witness Francisco, a crane operator, testified that one of the men who came to see him about joining the union said:
“It would be that day or none at all, because if he didn’t get an answer that day, he would go ahead and close the shop.”
Mr. Clarence B. Noble, secretary and treasurer of plaintiff company, testified:
“I know that Mr. Ashenden was * * * talking to Mr. Butcher, telling us that we had to sign up with the union. That is what he told Mr. Butcher, not once but several times; we were going to have a closed shop. In the event that we didn’t sign that agreement he said they would close us down.”
Mr. Noble also testified:
“Mr. Standley * * * told me over the telephone that we would either have a closed shop or put a picket up there and close us down.”
Defendant Ashenden on cross-examination testified as follows:
“Q. That is a fair proposition, to give them time to think it over, and then, of course, if they don’t want to become members, then they should go some place else to work?
“A. Well, I think that is logical.
“Q. That is generally accepted?
“A. That is generally accepted.
“Q. In a closed-shop agreement?
“A. Yes, sir.”
Ashenden further testified:
“If you had done it, that is sign a closed-shop agreement with all the parties, there would have been no picket line. We would have no trouble then.”
Defendant Standley testified:
“I says, ‘Locke, I just got through talking to Clarence Noble out here, and Clarence says they are not going to do anything out there. We can’t do anything with them.’ I says, ‘Can’t you do anything with them?’ He says ‘They have made up their mind.’ I says, ‘The only thing to do is put a picket on the place.’ ”
Following the refusal of the employees to join the union, and the refusal of the plaintiff company to sign a closed-shop agreement consequent upon the refusal of the employees to join the union, peaceful picketing occurred. It is conceded that the truck driver employees of plaintiff refused to go through the picket lines. Mr. Noble further téstified that Mr. Criswell, business agent for the truck drivers union, came out and requested the drivers not to work at all because the pickets objected.
The trial court in his opinion found:
“We think the purpose of the picketing in this case was to coerce the employer to bring pressure upon his employees to join a union. Such conduct on the part of the employer * * * [would violate] the Michigan statute [Stat. Ann. 1944 Cum. Supp. § 17.454(18)] * * * and the violation of this statute is the unfair labor practice that makes this picketing a matter for the operation of an injunction in this case.”
A careful consideration of the entire record convinces us of the correctness of the finding of fact just cited. The purpose of the picketing was to cause that the truck drivers, who were union members, would not go through the picket line with their trucks in the necessary and essential operation of transporting plaintiff’s materials and products to and from its plant, and thus to compel the plaintiff company, in order' to continue its operations, to sign a closed-shop agreement, the result of which signing would be to compel the employees to join a union which they had announced they did not choose to join, in violation of Act No. 176, § 17, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 8628-17, Stat. Ann. 1947 Cum. Supp. § 17.454 [18]).
In Silkworth v. Local No. 575 of the American Federation of Labor, 309 Mich. 746, we say at page 758:
“The testimony is convincing that defendants’ real objective was to compel plaintiffs to put their drivers in defendant union by paying their initiation fees, regardless of whether or not the drivers wished to join. This was not a lawful labor objective. Defendants could not use the lawful means of peaceful picketing .to accomplish such unlawful purpose.”
For further discussion of matters pertinent to the issue in this case, see Standard Grocer Company v. Local No. 406 of the American Federation of Labor, ante, 276, this day decided.
We consider that the objective of the picketing in the case at bar was for an unlawful purpose. The decree appealed from is affirmed. Costs to plaintiff.
Sharpe, Boyles, North, Dethmers, Btjtzel, and Carr, JJ., concurred with Reid, J. | [
6,
4,
-22,
44,
8,
1,
5,
11,
-5,
8,
-38,
7,
5,
-45,
-2,
-1,
0,
-12,
9,
56,
-14,
-46,
61,
-34,
-1,
30,
25,
-66,
-25,
4,
-77,
-3,
-9,
-12,
-10,
-81,
52,
-21,
-15,
-5,
-35,
10,
0,
-21,
13,
-2,
35,
31,
61,
6,
-3,
18,
-16,
21,
-27,
11,
4,
1,
-5,
57,
-45,
-21,
64,
15,
31,
-67,
29,
54,
-21,
-12,
2,
23,
-27,
-49,
26,
-22,
-4,
-26,
-37,
13,
-16,
10,
11,
-21,
-40,
54,
-15,
40,
-1,
15,
-19,
-22,
-61,
-9,
24,
-21,
-19,
47,
6,
-41,
-13,
2,
-53,
-27,
-8,
31,
15,
-54,
-9,
47,
-42,
4,
15,
11,
21,
-23,
-21,
27,
-31,
49,
46,
33,
-18,
-10,
-41,
-1,
-18,
-51,
-2,
26,
34,
9,
-6,
23,
46,
10,
50,
-28,
16,
-6,
-26,
74,
-22,
-11,
-30,
39,
-15,
39,
-35,
-74,
-32,
-34,
25,
-3,
-14,
-2,
55,
12,
0,
47,
54,
-2,
19,
-28,
-20,
-34,
-28,
4,
-17,
-8,
-26,
-35,
-45,
-38,
8,
2,
10,
44,
-49,
-14,
-24,
-36,
-54,
18,
18,
18,
16,
-27,
-32,
-5,
46,
-33,
-7,
8,
29,
-18,
3,
19,
-7,
43,
32,
37,
-32,
-6,
-11,
-31,
23,
24,
12,
53,
3,
14,
-20,
13,
9,
66,
21,
-17,
-14,
-29,
-5,
-34,
-47,
25,
-31,
-72,
53,
-21,
63,
-28,
-3,
-12,
53,
28,
5,
0,
10,
-6,
94,
54,
-75,
-25,
2,
18,
-6,
-32,
-64,
-47,
22,
27,
-12,
13,
52,
0,
-20,
-2,
-42,
3,
-58,
3,
5,
-25,
28,
-9,
-38,
17,
-51,
-10,
-44,
-36,
19,
3,
36,
31,
-59,
0,
-1,
28,
4,
-94,
-17,
43,
-35,
-16,
16,
-20,
5,
-8,
-35,
-50,
24,
-24,
-15,
-17,
52,
13,
-8,
6,
18,
50,
-22,
-23,
-34,
-35,
-7,
10,
-24,
-65,
13,
13,
-23,
-77,
-17,
-56,
-19,
-30,
59,
52,
30,
-50,
-42,
11,
7,
19,
11,
-7,
-4,
28,
39,
-5,
43,
-32,
9,
2,
-39,
-33,
27,
-10,
59,
12,
6,
28,
42,
3,
-41,
23,
11,
24,
-23,
-67,
2,
0,
-6,
-6,
-1,
19,
-35,
2,
-27,
-11,
18,
-19,
0,
-7,
8,
-13,
-42,
20,
-25,
19,
-12,
15,
4,
40,
-40,
11,
-30,
4,
-14,
64,
23,
-31,
27,
-27,
28,
11,
38,
-12,
2,
1,
-5,
-39,
-3,
31,
-26,
43,
-2,
-18,
-11,
37,
-10,
21,
-21,
-4,
0,
1,
20,
19,
-9,
14,
4,
31,
5,
30,
-17,
-26,
0,
-23,
8,
-10,
54,
-42,
3,
-14,
5,
-52,
-19,
17,
-16,
-21,
-45,
-20,
21,
31,
-51,
-42,
-24,
-10,
-26,
-43,
-35,
-15,
-10,
-31,
-13,
-23,
-19,
-31,
0,
-49,
17,
7,
-37,
11,
-13,
1,
-4,
44,
47,
41,
-79,
-26,
-47,
25,
69,
18,
5,
-2,
36,
30,
-18,
-17,
17,
35,
4,
-34,
16,
9,
-15,
-44,
8,
70,
17,
-11,
-27,
-60,
15,
19,
-1,
20,
41,
61,
12,
22,
12,
46,
-15,
-1,
2,
37,
-42,
49,
3,
-30,
-37,
2,
17,
-5,
19,
45,
-38,
-27,
58,
45,
-14,
27,
-30,
65,
0,
1,
12,
27,
-14,
-21,
1,
-14,
23,
-14,
-17,
19,
24,
-54,
60,
-17,
63,
3,
-17,
5,
-26,
-69,
-16,
-31,
3,
-25,
23,
-69,
-65,
-59,
62,
30,
-39,
-2,
-1,
-63,
41,
69,
-37,
63,
7,
49,
-36,
-38,
26,
6,
-15,
30,
-36,
28,
68,
31,
-52,
38,
-10,
36,
46,
52,
-20,
-19,
6,
-28,
63,
-54,
15,
2,
-13,
-48,
0,
-22,
-27,
-4,
-38,
-55,
-60,
3,
23,
12,
9,
54,
35,
-5,
31,
-41,
-36,
53,
-33,
-29,
13,
-31,
3,
26,
-30,
-18,
-24,
27,
-35,
45,
-7,
-31,
28,
11,
5,
26,
6,
6,
-12,
-22,
23,
-22,
31,
-15,
-75,
2,
-22,
18,
-6,
-34,
14,
40,
13,
-7,
-54,
39,
-9,
-22,
-42,
-24,
4,
29,
-15,
61,
-6,
20,
49,
-2,
-12,
-22,
56,
38,
-13,
-51,
16,
-19,
13,
37,
-47,
-21,
24,
-4,
11,
14,
93,
32,
2,
5,
58,
18,
-43,
-46,
42,
50,
-57,
-24,
55,
41,
-2,
-24,
56,
16,
-53,
-7,
4,
13,
-11,
17,
20,
-17,
3,
-48,
26,
-30,
-45,
3,
26,
-1,
15,
21,
-31,
-33,
60,
19,
43,
-55,
22,
10,
37,
41,
-21,
13,
-23,
-27,
-10,
1,
6,
50,
24,
3,
16,
-70,
-18,
3,
29,
33,
-9,
-16,
-12,
27,
-16,
5,
-5,
-6,
46,
-8,
-24,
12,
5,
2,
-10,
-28,
7,
-13,
-4,
-8,
-9,
16,
-39,
24,
-21,
-8,
-64,
45,
-8,
8,
46,
31,
-7,
-17,
-9,
-54,
65,
-47,
-10,
22,
-31,
-6,
1,
7,
-30,
-18,
-84,
0,
39,
-38,
4,
-45,
-33,
0,
11,
20,
-17,
4,
-36,
27,
21,
13,
-22,
1,
-41,
-16,
-13,
-54,
-26,
-17,
-31,
54,
-8,
-41,
-2,
-10,
-9,
5,
-37,
24,
-39,
-27,
34,
69,
-57,
29,
-52,
21,
-9,
10,
-20,
-40,
32,
-45,
-15,
-5,
30,
-17,
45,
22,
22,
27,
-40,
18,
38,
-21,
40,
-27,
2,
-47,
-38,
31,
-1,
22,
15,
61,
-20,
-34,
-20,
27,
-49,
38,
39,
-32,
-2,
-40,
-13,
56,
74,
6,
-31,
19,
-38,
46,
-52,
-78,
20,
-16,
2,
-45,
74,
0,
-27,
-23,
-24,
-30,
36,
29,
-26,
10,
104,
-39,
12,
-5,
34,
-40,
23,
36,
14,
25,
-9,
-25,
7,
18,
35,
-12,
-17,
-6,
34,
49,
27,
38,
-20,
-44,
-7,
54,
-38,
35,
11,
29,
-24,
-7,
-44,
45,
-82,
81,
-6,
28,
0,
-8,
8,
0,
-12,
25,
-31,
36,
11,
28,
-20,
-31,
51,
-44,
7,
19,
8,
-25,
50,
-16,
-30,
29,
-35,
-80,
8,
-27,
-14,
4,
31,
8,
-11,
33,
29,
15,
52,
-6,
-15,
42,
23,
-15,
12,
7,
26,
34,
-2,
-47,
6,
-5,
-13,
-29,
27,
19,
-26,
6,
-14,
25,
-12,
20,
2,
7,
-12,
32,
80,
63,
-31,
1,
-51,
-30,
-36,
2,
28,
45,
0,
45,
-36,
13,
-40,
-49,
23,
12,
32,
0,
14,
-6,
2,
42,
34,
-3,
13,
27,
-1,
21,
-19,
30,
-25,
61,
-86,
-2,
-23,
0,
6,
36,
-84,
30
] |
Edward M. Sharpe, J.
Defendant John Smallegan & Sons is a copartnership consisting of three brothers, one of whom is plaintiff in this suit. They operated a general store and each brother had a more or less particular duty to perform. On April 17, 1933, plaintiff in the course of his regular work was waiting upon a customer who desired to purchase some lime and sulphur. This solution was kept in barrels outside the store and upon a raised platform about two feet high. Upon this particular occasion it was necessary to set up a new barrel upon the platform. Plaintiff produced testimony to show that before he attempted to set up the barrel lie took a long pipe wrench to remove the plug from the barrel and in so doing the wrench slipped from the plug and plaintiff stumbled back. Plaintiff then called one of his brothers to help him lift the barrel, weighing 450 pounds, a job that theretofore had required the efforts of two men. The barrel was resting on its side and had to be placed in an upright position. Plaintiff took hold of the bottom of the barrel and his brother Arthur took hold of the top side on the same end. Plaintiff started lifting before his brother and as he did so he felt a sharp pain in the back of his head, followed by some dizziness. Plaintiff then went into the store and later had to be taken home suffering from subarachnoid hemorrhage. Plaintiff made a claim for compensation to the department of labor and industry where an order was made granting him an award. Prom this award the defendants have appealed.
The defendants contend that plaintiff was not an employee, that he was a member of a partnership receiving a share of the partnership profits for services rendered.
Section 8413, 2 Comp. Laws 1929', in defining “employees” subject to the act includes:
“Every person’in the service of another, under any contract of hire, express or implied, including aliens, including working members of partnerships, receiving wages irrespective of profits from such.”
There is some testimony that tends to show that plaintiff’s salary was received from the profits of the partnership, but the finding of the commission controls if there is evidence to support it. "We quote the testimony of plaintiff as found in .the record:
“Q. How were you compensated for your work!
“A. At the rate of $20 per week.
“Q. What about your brothers?
“A. They also received $20 a week.
“Q. And that payment to you of $20 per week, was that a division of the profits?
“A. No, sir.
“Q. What was it?
“A. It was a straight salary of $20 a week.
“Q. When had you started to be paid at the rate of $20?
“A. January 1, 1933.”
The defendants next contend that the plaintiff did not suffer an accidental personal injury within the meaning of the compensation act.
The record discloses that the barrel weighed 450 pounds, that it was a part of plaintiff’s usual work to help lift this barrel upon a platform which stood about two feet off from the ground and that prior to lifting the barrel it was the usual thing to remove the plug from the barrel. On this particular occasion, in attempting to remove the plug, the pipe wrench that plaintiff was using slipped from the plug and plaintiff stumbled back. The jar received from stumbling was an unusual and unexpected result. The regular way to lift the barrel upon the platform was for one man to take hold of one end of the barrel while the other man lifted the opposite side of the barrel and both lift together. Upon this occasion both men were in their proper position to lift, yet Arthur did not start lifting when plaintiff did so that the full weight of the lifting was borne by the plaintiff alone. As a result of this unusual lifting, plaintiff felt a sharp pain in the back of the head, became dizzy and subsequently suffered a brain hemorrhage.
To justify compensation for accidental injury, there must have been “some unusual, fortuituous or unexpected happening which caused the injury and which was in essence accidental in character.” Sinkiewicz v. Lee & Cady, 254 Mich. 218, 220. The circumstances surrounding the lifting of the barrel were unexpected by plaintiff. The sudden lifting of a weight twice as heavy as customary was an unusual event not contemplated by plaintiff and resulting in an undue strain upon plaintiff. In our opinion plaintiff suffered an accidental injury such as is contemplated by the compensation act. La Veck v. Parke, Davis & Co., 190 Mich. 604 (L. R. A. 1916 D, 1277); St. Clair v. A. H. Meyer Music House, 211 Mich. 285; Helder v. Luce Furniture Co., 217 Mich. 496.
The award is affirmed, with costs to plaintiff.
Nelson Sharpe, C. J., and Potter, North, Fead, and -Btjtzel, JJ., concurred with Edward M. Sharpe, J. | [
-8,
21,
2,
-10,
18,
16,
-3,
0,
4,
6,
18,
-14,
11,
7,
51,
25,
31,
14,
68,
-17,
68,
-49,
39,
21,
18,
-8,
-3,
-51,
0,
4,
-11,
28,
-28,
-11,
-40,
-4,
46,
-19,
-42,
-32,
22,
53,
6,
21,
28,
1,
37,
-34,
46,
-27,
28,
-20,
9,
-24,
-3,
-43,
-5,
69,
-18,
44,
40,
8,
16,
3,
20,
22,
-39,
-28,
-11,
26,
-24,
-6,
36,
-18,
-35,
-32,
-11,
12,
26,
-31,
20,
3,
5,
-41,
-60,
110,
3,
10,
8,
-4,
-17,
9,
-36,
31,
17,
-23,
-16,
33,
-6,
33,
43,
33,
-10,
-11,
8,
18,
16,
-3,
-71,
15,
-28,
-3,
86,
9,
-26,
-46,
-14,
-20,
-39,
63,
40,
29,
6,
-30,
32,
5,
-5,
-17,
-29,
49,
63,
5,
3,
-11,
-13,
14,
11,
0,
2,
2,
-24,
14,
-66,
-10,
-2,
55,
-53,
-17,
17,
-16,
20,
-6,
-11,
2,
9,
-11,
-24,
-6,
64,
-28,
0,
-18,
25,
3,
-20,
-19,
-6,
-23,
-48,
35,
-11,
-6,
0,
-23,
34,
6,
47,
-44,
-49,
-19,
-2,
16,
18,
27,
10,
3,
24,
28,
15,
4,
40,
-18,
-31,
11,
-47,
-2,
3,
-35,
60,
13,
7,
-42,
33,
-55,
9,
16,
53,
47,
15,
-33,
-7,
53,
-5,
-33,
-48,
35,
-19,
-67,
4,
-39,
7,
18,
-11,
45,
-40,
-37,
27,
20,
-10,
-20,
-27,
14,
46,
0,
8,
-32,
26,
-13,
39,
63,
-34,
-59,
-56,
-25,
-14,
3,
34,
6,
-41,
34,
-19,
-2,
-36,
0,
-7,
-31,
-21,
21,
17,
-12,
-63,
18,
-10,
53,
27,
9,
-20,
0,
22,
42,
-42,
-33,
63,
20,
6,
-53,
-12,
54,
14,
-23,
22,
-5,
-48,
-26,
10,
-34,
5,
-28,
-29,
44,
17,
5,
27,
-69,
24,
8,
-10,
0,
-2,
-26,
-45,
27,
32,
-33,
-1,
28,
-41,
-15,
-43,
-64,
-26,
-34,
-9,
-29,
31,
-48,
-9,
42,
13,
-42,
4,
-12,
6,
38,
-15,
-33,
19,
-5,
68,
-14,
13,
-3,
15,
21,
-35,
-5,
46,
22,
49,
-7,
50,
23,
-20,
-40,
-33,
32,
57,
-8,
10,
-51,
5,
-7,
23,
46,
58,
31,
17,
-8,
-6,
16,
15,
-51,
-13,
6,
-26,
16,
-35,
-16,
-19,
22,
-37,
37,
-28,
-24,
-20,
-18,
-47,
8,
-11,
4,
26,
-3,
38,
-55,
-16,
-15,
-7,
-20,
-53,
28,
-36,
-3,
9,
34,
-14,
32,
-18,
-52,
1,
-9,
14,
-21,
10,
10,
-3,
-3,
0,
27,
26,
-2,
4,
-23,
11,
15,
-35,
-24,
10,
-10,
-39,
17,
47,
-18,
-27,
-14,
44,
-51,
11,
3,
-16,
-41,
-44,
12,
14,
0,
-3,
4,
-66,
13,
-23,
-17,
-71,
-32,
26,
16,
-2,
51,
9,
12,
59,
5,
0,
15,
31,
33,
21,
-13,
-2,
-22,
82,
-6,
-16,
55,
-56,
-6,
-7,
-4,
0,
-74,
-1,
38,
-34,
6,
69,
-57,
2,
-4,
30,
16,
17,
-39,
0,
-12,
54,
-1,
-22,
-41,
-11,
27,
-2,
30,
76,
7,
-23,
-55,
15,
21,
-1,
4,
-23,
4,
-52,
-36,
24,
-15,
-17,
-31,
15,
-58,
61,
16,
-51,
4,
-2,
27,
-17,
-20,
-40,
74,
23,
20,
-9,
15,
-33,
37,
-37,
-38,
-59,
15,
16,
-87,
-18,
-1,
-2,
44,
24,
-27,
76,
-45,
9,
1,
10,
-41,
12,
-19,
-4,
-22,
-23,
29,
8,
-1,
-18,
7,
56,
12,
-8,
-23,
16,
38,
19,
-30,
-34,
8,
-11,
6,
-15,
-24,
-8,
46,
47,
-29,
-24,
38,
31,
48,
-38,
-11,
-44,
2,
-6,
-18,
27,
2,
5,
6,
-37,
6,
-14,
4,
-47,
-17,
-42,
-11,
3,
38,
82,
-25,
10,
15,
25,
-7,
-23,
-17,
7,
-21,
-14,
-5,
2,
63,
14,
-16,
-7,
34,
-8,
-78,
-13,
-25,
14,
24,
-15,
11,
42,
36,
-46,
-13,
23,
78,
39,
6,
-11,
6,
0,
-12,
24,
8,
-1,
10,
24,
42,
-29,
-5,
-3,
-51,
34,
46,
-46,
-21,
34,
6,
0,
-29,
20,
15,
47,
3,
2,
-11,
-5,
-7,
-7,
-28,
6,
4,
12,
42,
-2,
21,
20,
-9,
18,
10,
40,
20,
0,
10,
3,
-26,
-12,
35,
-21,
35,
28,
-13,
24,
37,
-4,
16,
-4,
-41,
-3,
-64,
-25,
-3,
-51,
-30,
-18,
81,
-20,
7,
39,
-34,
5,
-43,
16,
5,
1,
3,
12,
-42,
14,
70,
-3,
-34,
15,
25,
66,
6,
-30,
10,
-4,
-33,
4,
-27,
38,
-2,
55,
62,
4,
-25,
-80,
-22,
12,
-27,
3,
24,
11,
8,
-42,
-39,
-67,
0,
43,
-12,
-6,
-16,
-7,
-43,
-24,
-18,
4,
26,
-48,
53,
22,
-12,
13,
-9,
1,
-7,
-33,
-1,
11,
41,
38,
3,
-5,
-13,
-5,
-50,
4,
-37,
-31,
48,
-1,
2,
17,
-25,
-5,
-40,
-27,
-4,
43,
-3,
49,
-8,
-17,
-51,
15,
-16,
71,
-16,
4,
-13,
-23,
-15,
-23,
-25,
-5,
25,
-17,
-44,
-35,
-15,
9,
15,
52,
-26,
55,
-29,
2,
-2,
-23,
-42,
-3,
-7,
-34,
-24,
-61,
-17,
19,
20,
5,
31,
-11,
-57,
8,
-11,
-40,
41,
-24,
1,
-10,
-25,
-29,
15,
43,
69,
11,
-7,
-27,
2,
22,
-11,
-27,
32,
43,
-40,
-63,
3,
-44,
-26,
6,
-22,
9,
0,
6,
-1,
13,
10,
-43,
31,
-4,
-23,
-7,
34,
-15,
-53,
-10,
-2,
-43,
0,
22,
-7,
-16,
-69,
-28,
24,
-20,
2,
25,
49,
-33,
31,
14,
-25,
-2,
-7,
5,
-16,
-16,
70,
10,
-49,
13,
-7,
28,
-56,
-50,
-31,
15,
-24,
5,
-12,
-5,
10,
5,
-27,
-1,
-22,
-11,
-3,
-18,
-17,
62,
-26,
-6,
68,
29,
31,
7,
18,
-29,
-44,
-6,
-17,
1,
-9,
25,
13,
29,
49,
14,
-18,
38,
-10,
16,
-24,
24,
-65,
-5,
-10,
14,
65,
6,
26,
-42,
-57,
23,
-5,
5,
3,
-1,
-12,
-8,
14,
13,
-32,
-33,
18,
6,
10,
0,
61,
-46,
54,
-8,
32,
31,
10,
-28,
-77,
52,
-12,
47,
-48,
31,
26,
-31,
-52,
39,
60,
-12,
-17,
-16,
62,
24,
-14,
0,
-3,
-25,
50,
-5,
24,
-8,
30,
10,
-6,
-1,
15,
1,
-72,
32,
-10,
-34,
-14,
-9,
46,
12,
40,
1,
-26,
-46,
-4,
-1,
5,
6,
6,
-35,
1,
-12,
-43,
3,
24,
0,
14
] |
Butzel, J.
Plaintiffs Dorothy Hooks and William Hooks were injured by an automobile driven by Benedict Usovich, an employee of the Western & Southern Life Insurance Company. Separate suits, brought by each of them against Usovich and the insurance company, were consolidated and heard by the trial judge without a jury. Judgments were rendered against Usovich but the insurance company was absolved from liability. The main question, presented on appeal, is whether judgment should also have been rendered against defendant insurance company, herein referred to as the appellee. Liability hinges on whether Usovich at the time of the accident was acting within the scope of his employment, whether he was “engaged in the service of his master, or while about his master’s business.” Riley v. Roach, 168 Mich. 294, 307 (37 L. R. A. [N. S.] 834).
Usovich’s duties, for the performance of which he received a stated salary, and also a commission under certain conditions, consisted of canvassing, making collections, and such other work as might be specially detailed to him, all under the instructions of appellee. Although his contract of employment did not require the use of a car, Usovich used his own automobile in his work, paying all the expenses incidental to its operation. Appellee was aware of this, and did not object. However, employees were instructed not to use cars in their work on Thursdays and Fridays, days on which they were directed to canvass from house to house on designated streets. In work of that nature an automobile might obviously become a hindrance rather than an aid. In order not to disturb prospects while at lunch, agents were also instructed not to canvass from 11:30 a. m. to 1:00 p. m. During this period the employment was suspended, and agents could go wherever they pleased.
The accident occurred on Thursday, August 4, 1932, a day appointed for canvassing. On;that day Usovich drove in his ear from his home in Wyandotte, Michigan, a short distance to the company’s office at River Rouge. He then drove back to where he had been instructed to canvass portions of two streets. He parked his car at the end of one of these streets, and canvassed from house to house until about noon, when he returned to the car in order to go home to lunch, as was his usual custom. Shortly after he started the car, and within half a block from where it had been parked, during the morning, Usovich struck the plaintiffs.
We shall not discuss cases, relied upon by appellants, where an employer was held liable under the statute imposing liability upon the owner of a car driven with his consent; where employers have been held liable under the doctrine of respondeat superior for accidents caused by an employee; nor where the accident occurred on premises owned by the employer ; nor where the employee was driving his own car, or his master’s car, on a journey to attend to his master’s business; nor where there was a slight deviation from the route with the master’s consent in order to shorten time required by the employee for lunch, apd thus lengthen the time of service to the employer. Neither shall we discuss compensation cases in which the courts, in order to give a' liberal contraction to the workmen’s compensation act, have at times gone far in determining what is included in the term “scope of employment.”
However, a correct statement of the law applicable to the case before us is found in Lipinski v. Sutton Sales Co., 220 Mich. 647, a compensation case. In finding that a workman was not acting within the scope of his employment while riding’ back from lunch in a fellow workman’s car, the court said:
“An examination of the cases where the accident was upon the street and liability was sustained will disclose that in each case the employee was at the time of the accident in the discharge of his duties to the employer and the accident arose out of the discharge of such duties. Not so the instant case. When the accident occurred here the decedent was in discharge of no duty to the employer and the accident did not arise out of such employment.”
Except under certain conditions which do not exist in the present case, the courts as a rule have repeatedly held that when an employee, going to or returning from his lunch or dinner, injures another through the negligent use of an automobile, the employer is not liable. Reilly v. Connable, 214 N. Y. 586 (108 N. E. 853, L. R. A. 1916 A, 954, Ann. Cas. 1916 A, 656); Bloom v. Krueger, 182 Wis. 29 (195 N. W. 851); Calhoon v. D. C. & E. Mining Co., 202 Mo. App. 564 (209 S. W. 318); Ebers v. Whitmore, 122 Neb. 653 (241 N. W. 126); Green v. Western Union Telegraph Co. (Mo. App.), 58 S. W. (2d) 772; Kish v. California State Aibtomobile Ass’n, 190 Cal. 246 (212 Pac. 27).
Even if there were any merit to the other grounds of error set forth by appellant, they would not affect the result. The trial court correctly found defendant .insurance company not liable. The judgment is affirmed, with costs to appellee.
Nelson Sharpe, C. J., and Potter, North, Fead, Wiest, Bushnell, and Edward M. Sharpe, JJ., concurred. | [
-12,
7,
-21,
-43,
36,
-8,
17,
-27,
12,
-16,
-28,
-26,
38,
-8,
-12,
-21,
0,
-1,
-1,
2,
-42,
-32,
-21,
-37,
-56,
-1,
25,
-44,
-6,
1,
17,
-18,
-18,
-19,
-14,
-1,
17,
4,
13,
10,
33,
0,
17,
18,
33,
-13,
10,
-43,
25,
-6,
30,
27,
-36,
9,
5,
-17,
48,
37,
-40,
0,
-11,
-12,
65,
-25,
-21,
-3,
19,
42,
12,
27,
-47,
63,
-34,
20,
-16,
-1,
14,
18,
-11,
-8,
0,
-74,
37,
12,
-9,
54,
-37,
-2,
-22,
0,
-31,
-50,
-9,
-36,
11,
31,
-43,
-1,
-16,
11,
42,
2,
28,
33,
-50,
52,
-1,
-42,
-26,
6,
-7,
55,
6,
20,
10,
8,
26,
25,
-17,
24,
13,
-16,
5,
-10,
-28,
21,
-30,
23,
-58,
39,
31,
40,
8,
-17,
-26,
17,
-37,
-48,
11,
3,
1,
-26,
-60,
16,
-36,
-5,
57,
-27,
-38,
14,
24,
30,
6,
-11,
-33,
-16,
2,
-26,
98,
-16,
0,
-43,
12,
47,
-11,
9,
-66,
57,
5,
-14,
26,
-15,
-1,
-25,
24,
-18,
0,
-35,
-41,
-9,
-24,
39,
-16,
-3,
3,
-60,
6,
25,
1,
-8,
-2,
-10,
6,
35,
-5,
21,
33,
63,
12,
5,
58,
1,
-7,
-13,
-1,
37,
-16,
22,
19,
3,
44,
-19,
9,
-14,
-30,
27,
16,
-42,
-11,
-67,
15,
7,
-18,
-32,
-36,
-47,
-69,
-41,
-18,
-1,
-22,
-37,
33,
49,
-5,
12,
10,
-65,
18,
-18,
33,
19,
14,
2,
9,
-11,
4,
4,
6,
20,
7,
35,
5,
33,
-46,
-24,
-32,
-3,
-36,
-4,
-57,
38,
-52,
79,
27,
4,
25,
52,
3,
-66,
-2,
-1,
48,
-19,
-41,
-80,
43,
2,
28,
-76,
-3,
-11,
-57,
-32,
-17,
2,
29,
-23,
-7,
-19,
31,
-49,
6,
3,
38,
-1,
61,
42,
-48,
44,
-11,
4,
-26,
39,
38,
14,
-65,
4,
8,
0,
-72,
-30,
-15,
-69,
75,
-8,
21,
-9,
29,
-12,
19,
0,
-2,
3,
-69,
-6,
-8,
-15,
3,
-17,
0,
-52,
0,
20,
-7,
-38,
30,
46,
3,
10,
1,
29,
16,
-32,
-3,
19,
41,
12,
29,
-1,
-21,
-6,
-10,
-44,
10,
55,
67,
17,
-42,
33,
-31,
3,
-6,
25,
-11,
-32,
9,
23,
0,
48,
39,
-24,
-52,
-65,
-34,
-39,
-21,
61,
12,
71,
27,
-23,
0,
-43,
5,
-17,
-27,
-28,
-7,
19,
-55,
42,
-1,
43,
-30,
36,
-31,
2,
-35,
22,
-12,
55,
-23,
-54,
6,
3,
14,
-10,
-41,
-34,
-51,
-24,
55,
42,
17,
33,
30,
13,
-42,
-59,
56,
-3,
19,
-1,
23,
-17,
-11,
28,
-40,
-37,
16,
-46,
17,
-49,
-2,
-39,
-15,
-40,
11,
9,
9,
20,
-3,
-15,
-7,
1,
15,
6,
17,
-22,
13,
-26,
53,
55,
22,
10,
32,
13,
-72,
-7,
-15,
-31,
56,
-28,
29,
-35,
24,
-22,
54,
-23,
-19,
-10,
-14,
9,
5,
-45,
-31,
12,
-10,
61,
-83,
21,
13,
-20,
-24,
-34,
24,
-1,
7,
39,
23,
13,
-36,
-31,
8,
-23,
-11,
46,
-52,
-24,
-38,
40,
13,
8,
7,
-52,
-6,
-81,
-8,
-21,
-6,
-20,
39,
56,
-12,
54,
-25,
37,
35,
-7,
-11,
38,
-53,
-4,
-28,
-34,
-1,
-25,
-15,
-47,
17,
-18,
34,
-3,
-4,
-26,
1,
29,
-18,
-12,
-3,
32,
-31,
-5,
2,
-60,
7,
32,
71,
-49,
-4,
-17,
-1,
-54,
33,
-51,
-13,
-18,
5,
38,
-20,
27,
0,
1,
39,
16,
-8,
11,
59,
-52,
-39,
6,
40,
-39,
-47,
13,
29,
-20,
-31,
-24,
3,
34,
-33,
16,
-9,
-2,
-19,
-9,
-8,
0,
58,
5,
7,
2,
29,
9,
43,
27,
2,
18,
7,
29,
-37,
24,
-12,
33,
-16,
15,
10,
31,
12,
-21,
-12,
-20,
-14,
-9,
-34,
9,
50,
-16,
20,
46,
35,
27,
25,
48,
56,
51,
-19,
-26,
-44,
-10,
-19,
0,
-16,
-31,
24,
46,
-12,
2,
-9,
1,
27,
20,
-23,
-29,
17,
-10,
-4,
-3,
-21,
-5,
-2,
-36,
7,
7,
-33,
2,
-38,
25,
-5,
-20,
-26,
-50,
-22,
-4,
-8,
-22,
-22,
22,
60,
-4,
38,
36,
48,
46,
11,
44,
-6,
11,
19,
-11,
46,
37,
-14,
-4,
25,
0,
39,
-95,
-25,
18,
-45,
-33,
-60,
-7,
38,
-33,
27,
-60,
-15,
-11,
-64,
49,
-46,
7,
0,
-6,
-2,
26,
22,
13,
33,
-32,
-14,
28,
29,
-7,
-68,
33,
8,
-34,
4,
-9,
-2,
26,
25,
-7,
-34,
4,
26,
-40,
6,
26,
2,
7,
18,
-50,
-41,
-11,
22,
12,
66,
20,
-34,
-13,
0,
29,
35,
-1,
-36,
17,
33,
-28,
-2,
-13,
13,
39,
-37,
-54,
-9,
-15,
14,
60,
1,
22,
-68,
27,
13,
-69,
-34,
-4,
-5,
-73,
-29,
52,
15,
-58,
-56,
1,
11,
-39,
-1,
8,
8,
17,
5,
-15,
12,
11,
40,
-13,
26,
-2,
-18,
-13,
-9,
-21,
31,
24,
-3,
42,
-52,
53,
38,
-32,
38,
-13,
58,
-4,
-14,
-18,
43,
23,
23,
-1,
-18,
21,
-59,
9,
-38,
29,
0,
25,
6,
-27,
25,
-21,
29,
-2,
13,
-24,
-65,
15,
-31,
63,
33,
-3,
-54,
-55,
30,
11,
-38,
77,
31,
14,
-3,
59,
3,
40,
-45,
-18,
15,
28,
-23,
-6,
-16,
-15,
-14,
27,
-30,
-38,
-28,
-3,
30,
14,
8,
0,
-20,
-9,
25,
62,
17,
-18,
-7,
14,
-8,
-53,
9,
12,
-20,
34,
0,
71,
-67,
-3,
15,
-20,
-37,
24,
63,
-6,
-35,
-14,
-47,
-20,
-23,
20,
34,
-30,
4,
41,
6,
0,
0,
39,
-27,
58,
-78,
-1,
47,
13,
45,
12,
-7,
33,
-43,
41,
5,
10,
-25,
-49,
-9,
-31,
-20,
-21,
16,
-23,
0,
40,
11,
-27,
10,
30,
57,
-36,
47,
-12,
-4,
-21,
46,
1,
1,
19,
-13,
-37,
2,
-13,
-2,
20,
37,
62,
22,
32,
-50,
-36,
11,
2,
13,
5,
-34,
-12,
36,
-7,
65,
-25,
23,
-44,
-23,
2,
31,
0,
14,
-12,
-29,
-42,
-10,
25,
-48,
-4,
-17,
21,
-9,
35,
2,
-22,
-34,
-55,
-20,
9,
-51,
40,
7,
40,
-31,
-29,
0,
30,
60,
-29,
18,
8,
-24,
15,
-36,
31,
3,
15,
16,
-12,
26,
14,
-31,
-32,
40,
39,
-22,
16,
-30,
-25,
-38,
28,
-3,
9
] |
Kavanagh, J.
(for reversal). Plaintiff sued the city of Flint for damages resulting from injuries claimed to have been due to the failure of the city employees to maintain proper barricades to warn drivers on the highway of a hole in the highway which the city was repairing.
The accident happened about 10 o’clock in the evening on June 7, 1955, after working hours of the repair crew. It is admitted that Port highway, on which the repair work was being done, is and always has been a part of US-10, a State trunk-line highway, beginning at the foot of Woodward avenue in the city of Detroit and running northwesterly up Woodward avenue to the city of Pontiac, thence through Flint, Saginaw, and across the State of Michigan to Ludington. The place where the accident happened is within the corporate limits of the city of Flint.
It is stipulated that Port highway, at the point of the accident, was built by the State of Michigan in 1926 as a State trunk-line highway, and that it has been maintained by the State highway commissioner since that date; that in most years the actual maintenance work was done by Grenesee county under contract with the State highway commissioner. In 1954 the State highway commissioner entered into a contract with the city of Flint for maintenance, and the city of Flint was in the performance of this contract when the accident occurred. By the terms of this contract the city of Flint performed the work of maintenance and was to be reimbursed by the State highway commissioner on the basis of the city’s cost.
Plaintiff based his claim for liability on CLS 1956, § 242.1 (Stat Ann 1958 Rev § 9.591), which reads as follows:
■ “Any person or persons sustaining bodily injury upon any of the public highways or streets in.this State, by reason of neglect to keep such public highways or streets, and all bridges, sidewalks, crosswalks and culverts on the same in reasonable repair,, and in condition reasonably safe and fit for travel by the township, village, city or corporation ivhose corporate authority extends over such public highway, street, bridge, sidewalk, crosswalk or culvert, and whose duty it is to keep the same in reasonable repair, such township, village, city or corporation shall be liable to and shall pay to the person or persons so injured or disabled, and to any person suffering damages by reason of such injury, just damages, to be recovered in an action of trespass on the case before any court of competent jurisdiction.” (Emphasis supplied.)
It is the position of the plaintiff that the city’s-corporate authority extends over such public highway, and that the city had a duty to keep the same in reasonable repair. Plaintiff also claims a statutory duty on the part of the city to keep in reasonable repair all public highways that are within its jurisdiction under CL 1948, § 242.3 (Stat Ann 1958 Eev § 9.593), which reads as follows:
“It is hereby made the duty of townships, villages,, cities, or corporations to keep in reasonable repair, so that they shall be reasonably safe and convenient for public travel, all public highways, streets, bridges, sidewalks, crosswalks, and culverts that are within their jurisdiction, and under their care and control, and which are open to public travel.”
At the conclusion of the plaintiff’s proofs, and' again at the conclusion of defendant’s proofs, defendant city made a motion for a directed verdict, which the court took under advisement under the Empson act (CL 1948, § 691.691 et seq. [Stat Ann and Stat Ann 1957 Cum Supp §27.1461 et seq.]). The jury returned a verdict in the amount of $2,500. Defendant city then filed a motion for a judgment non obstante veredicto for the following reasons: (1) that the plaintiff had failed to sustain the burden of proof establishing negligence on the part of the city; (2) that the plaintiff failed to establish any negligence on the part of the city which would be a proximate cause of the accident; (3) that as a matter of law, at the time and place this accident occurred, the Dort highway was a State trunk-line highway, and, being such, it was not the duty of the city of Flint, as provided in CLS 1956, § 242.1 (Stat Ann 1958 Rev .§ 9.591),' to maintain said trunk-line highway, but was the duty of the State highway commissioner, and, therefore, the city is not liable under said statute ; (4) that as a matter of law, as a contractor with the State highway commissioner for maintenance of the Dort highway at the time and place the accident ■occurred, the city of Flint was carrying out governmental duties of the State highway commissioner, and, therefore, was immune from suits for negligently performing the duties contracted for with the State highway commissioner.
It is admitted by both plaintiff and defendant that the State highway commissioner is not liable for negligence in the performance of his duties in constructing or maintaining State trunk-line highways.
Defendant’s main contention is that it was not the duty of the city to keep and maintain Dort highway in reasonable repair at the place the accident happened, but, rather, that it was the duty of the State of Michigan under CL 1948, §§ 225.2b, 250.61, and CLS 1956, § 250.31 (Stat Ann 1958 Rev §§ 9.204, 9.901, and Stat Ann 1955 Cum Supp § 9.881).
The circuit judge denied defendant’s motion, saying the negligence of the defendant and proximate cause were, on the evidence received, questions for the jury, and that under the statutes there was a duty on the part of the city to keep in reasonable repair “all public highways, streets * * * that are within their jurisdiction, and under their care and •control, and which are open to public travel.” (CL 1948, § 242.3 [Stat Ann 1958 Rev § 9.593].) The trial •court indicated that it did not believe that any of the statutes cited by defendant removed this duty, or that the city could avoid it by entering into a contract with the State highway commissioner. The court held that one who is injured comes within the terms ■of liability set forth in CLS 1956, § 242.1 (Stat Ann 1958 Rev §9.591).
Defendant city appeals from the denial of the motion for judgment non obstante veredicto.
The attorney general, under his statutory powers, intervened and filed a brief on behalf of the State of Michigan.
A decision in this case rests on the construction to be placed upon the several statutes mentioned and the proper construction of CLS 1956, § 242.1 and CL 1948, § 242.3 (Stat Ann 1958 Rev §§ 9.591, 9.593), and particularly that portion of CLS 1956, § 242.1 (Stat Ann 1958 Rev § 9.591), which reads as follows:
“whose corporate authority extends over such public highway, street, * * # and whose duty it is to keep the same in reasonable repair.”
.and the portion of CL 1948, § 242.3 (Stat Ann 1958 Rev § 9.593), which states:
“It is hereby made the duty of * * * cities * * * to keep in reasonable repair, so that they shall be reasonably safe * * * for public travel, all public highways, streets, * * * that are within their jurisdiction, and under their care and control, ■and which are open to public travel.” (Emphasis •supplied.)
The plaintiff, in attempting to show that the city has a duty to keep the highway in reasonable repair, claims that this is implied as natural corollary of the right to control, and contends that such reasoning is supported by article 8, § 28, of the Michigan Constitution of 1908, which provides as follows:
“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 question of reasonable control under this section of the Constitution has been under discussion by our Court several times in late years until it would seem that there could be no question with regard to the meaning of these words.
In the case of People v. McGraw, 184 Mich 233, at pp 237, 238, we discussed this particular section of the Constitution and stated as follows:
“In the study of section 28, it is interesting to notice what the committee on submission and address to the people said with reference thereto, in submitting the proposed revision to the people (2 Proceedings and Debates of the Constitutional Convention, p 1433):
“ ‘This is a new section, and its purpose is to prevent the use of streets, alleys, highways, and public places without the consent of the local authorities first had and obtained. The word “reasonable” was inserted to place a limitation upon the authority cities, villages and townships may exercise over the streets, alleys, highways, and public places within their corporate limits. And it was pointed out in the debates that without the word “reasonable,” or a similar qualification, the section would practically deprive the State itself of authority over its highways and public places.’
“From this, and also from reading the debates with reference to the insertion of the word ‘reasonable,’ it is clear that it was not the intention of the framers of the Constitution to deprive absolutely the State itself of control over its highways and bridges in the cities, villages, and townships. The claim that the reservation should be limited to the control of public utility corporations, to our minds, overlooks entirely the express language of the last sentence of said section 28. 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.
“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. The congested condition of traffic on many of the ■streets of the city of Detroit is a matter of common knowledge, and these conditions make it absolutely ■necessary, for the protection of pedestrians and the ■drivers of vehicles, to enact rules and regulations peculiarly adapted to the conditions there found, and to enact ordinances to diminish the danger, and the words ‘reasonable control’ in section 28 give the powder to meet just such conditions.
“It follows, therefore, that the provisions of the ■ordinance which contravene the State law must be held to be invalid and void.”
The right to reasonable control in this limited sense was upheld in City of Dearborn v. Sugden & Sivier, Inc., 343 Mich 257. Justice Carr, writing for the Court, there upheld the right of a city to enforce a city ordinance which contained, in substance, identical provisions of the State motor vehicle code .’in regard to weight restrictions on truck traffic, even though the violation was on a trunk-line highway within the city, on the theory that a municipality under article 8, §§ 27, 28, of the State Constitution (1908) retains reasonable control of its highways. This control has been defined as 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. The control under the ordinance by the city could not be said to be in conflict with this definition in view of the fact that its provisions were, in substance,, identical.
In the case of Allen v. State Highway Commissioner, 338 Mich 407, Justice Reid discussed the subject of reasonable control in a case where the right of a city to erect parking meters on a street, which was also US-16, a State trunk line, was questioned. The city installed parking meters. The highway commissioner and a commissioner of the State police under CL 1948, § 750.498 (Stat Ann 1954 Rev § 28.766) and PA 1949, No 300, § 675(d), as amended by PA 1951, No 47 (CLS 1952, § 257.625 [d], Stat Ann 1952-Rev § 9.2375[d]), ordered the signs removed and parking prohibited on the north half of State trunk-line highway US-16. The city of East Lansing relied upon article 8, §§ 27, 28, of the Constitution of 1908, contending that reasonable control of its streets prohibited the State from taking action under the statute. Justice Reid, speaking for the Court, cited the case of Allen v. Rogers, 246 Mich 501, and quoted from syllabus 5 as follows (p 415):
“ ‘The reasonable control of streets reserved to cities under the Constitution (article 8, § 28) does not give them exclusive control, preventing the State from assuming any control over State trunk-line highways running through cities.’ ”
Justice Reid, continuing, said (pp 415, 416):
“The right to reasonable control of their streets is not a gift of an arbitrary prerogative to the cities, villages and townships. The reasonableness of the city’s control of its streets is not to be within the final determination by the city in all cases, for that in practical effect conld erase the word ‘reasonable’ from the constitutional provision.”
It was therein held that the State by the establishment of a trunk-line highway which included the street in question in East Lansing, thereby assumed an obligation to the people of the State in general to see to it that the street in question, together with the trunk line in general, was so maintained and controlled as to be reasonably available for the flow of traffic.
Justice Edward M. Sharpe, in a concurring opinion, said (p 417):
“That part of US-16 in controversy here became a part of Ingham county road system on September 10, 1924, and on the same date it was established as a State trunk-line highway. By such action US-16 not only was a city street but also a part of the State highway systems.”
Dort highway was constructed in 1926 and became a part of the State trunk-line system at that time.
In Allen v. Rogers, 246 Mich 501, this Court, in discussing the question of reasonable control, and article 8, §§ 27, 28, of the Constitution of 1908, said {p 509):
“The State is committed to a comprehensive system of highway development which requires that it should extend its trunk-line roads through cities. The legislature has undertaken to bring this about by providing for cooperation between the cities and the highway department. Cooperation by the cities is not compulsory, but the proposition is made so attractive that, for financial reasons and for the general public good, cities are willing to cooperate. This they may do without relinquishing their constitutional right to a reasonable control of their streets.”"
It is apparent from the discussion of the above cases that the constitutional provisions mentioned do not reserve to the municipality complete control over streets and highways within a municipality, but that reasonable control is reserved. This reasonable control is limited by definition to such control as cannot be said to be unreasonable and inconsistent with regulations that have been established, or may be established, by the State itself. Therefore, it cannot be said that State legislation granting duty of maintenance to the State highway commissioner on State trunk-line highways within the municipal limits, of a city or village offends sections 27 and 28 of article 8 of the Constitution.
CL 1948, § 250.38 (Stat Ann § 9.888) contained the following language:
“It shall be the duty of the State highway commissioner to see that all trunk-line highways are properly maintained in suitable condition for public travel.”
CLS 1956, § 250.31 (Stat Ann 1955 Cum Supp § 9.881) read, in part, as follows:
“All trunk-line highways now or hereafter established as provided by law, shall hereafter be constructed, maintained and improved in accordance with the provisions hereof under the direction, supervision and control of the State highway commissioner. Said commissioner is hereby authorized and directed to make surveys and proper plans and specifications and take charge of the construction and maintenance aforesaid.”
It is stipulated that Dort highway is a State trunk-line highway, and the above-mentioned statutes place a duty on the State highway commissioner to maintain all trunk-line highways. From a reading of CLS 1956, § 242.1 (Stat Ann 1958 Rev § 9.591) it is apparent that the words “whose corporate authority extends over such public highway, street, bridge, sidewalk, crosswalk or culvert, and whose duty it is to keep the same in reasonable repair” could not refer to State trunk-line highways within the limits of villages or cities. Courts endeavor to reconcile even conflicting sections of statutes and make them work if possible.
In Wayne County v. Auditor General, 250 Mich 227, the Court quoted with approval from 2 Lewis’ Sutherland Statutory Construction (2d ed), pp 844, 845, as follows (p 234):
“ ‘All consistent statutes which can stand together, though enacted at different dates, relating to the same subject, and hence briefly called statutes in pari materia, are treated prospectively and construed together as though they constituted one act. * * * They are all to be compared, harmonized if possible, and, if not susceptible of a construction which will make all of their provisions harmonize, they are made to operate together so far as possible consistently with the evident intent of the latest enactment.’ ”
See, also, Malonny v. Mahar, 1 Mich 26; People, ex rel. Hughes, v. May, 3 Mich 598; People, ex rel. Whipple, v. Saginaw Circuit Judge, 26 Mich 342; In re Kreiner, 156 Mich 296.
Reading together the 2 above statutes it is apparent that the legislature intended by transferring to the State highway commissioner the authority over and duty to repair and maintain State trunk-line highways to relieve the city or village of liability under CLS 1956, § 242.1 (Stat Ann 1958 Rev § 9.591), insofar as it applies to State trunk-line highways. This construction has, in effect, been supported by legislative amendment in 1957.
The only question left for discussion in this case is: Was the city of Flint in performing maintenance work on Dort highway within the corporate limits of the city of Flint, pursuant to a contract therefor with the State highway commissioner, fulfilling a governmental function and, therefore, immune from liability ?
Defendant appellant contends that it was fulfilling the governmental function of the State highway commissioner, whose duty it is to maintain State trunk-line highways, and, therefore, it could not be liable for negligence in the performance under its contract.
The contract entered into by defendant appellant and the State highway commissioner is similar to the contract reviewed by this Court in Johnson v. Ontonogan Board of County Road Commissioners, 253 Mich 465, wherein we said (pp 469-471):
“Defendant herein at the time of the accident was operating under a cost-plus contract with the State highway commissioner. The contract contains 2 paragraphs providing for actual reimbursement to defendant for expenditures incurred in the work. The third paragraph provides fixed rentals for use of equipment furnished and used by defendant. The fourth paragraph contains the following provision: ‘to pay to said party of the second part as an overhead and supervision charge an amount equal to 5.5% of the total paid under paragraphs 1, 2 and 3 above, plus an amount equal to 5.5% of the cost to the State of materials purchased by it and furnished to the second party for use in the performance of this contract.’ Plaintiff contends that by reason of the provisions in the fourth paragraph it must be concluded that a profit would result to the defendant from performance of work under this contract; and that by reason thereof defendant should be held to be engaged in a commercial enterprise rather than in the performance of a governmental function.
“This contract in several particulars is decidedly unlike those usually consummated with independent-contractors. It requires the defendant herein to' ‘appoint a superintendent of maintenance satisfactory to the party of the first part, who shall * * * perform said work at the time and in the manner-specified by the party of the first part.’ It also requires defendant to ‘employ only workmen skilled in their various duties;’ and further, defendant agrees-in this contract upon request of the State highway commissioner to discharge any person found to be-incompetent or negligent in the performance of his work and not to re-employ such person except with the written consent of the State highway commissioner. Also the wages to be paid and the materials to be purchased are to be such as are agreed to by the State highway commissioner; and by his power-of approval reserved in the contract the commissioner controls the type and number of units of equipment to be furnished by the defendant for this work. We think these features of the contract quite conclusively indicate that the defendant board of road commissioners is only a governmental agency in the-hands of the State highway commissioner used in the discharge of certain governmental duties, i.e., the-repair and maintenance of State highways. * * *
“We find nothing in this record indicating that defendant was engaged in an enterprise which inured' especially to its own corporate benefit. Instead, all' of its activities had to do with the construction or maintenance of the public highways, which is the performance of a public duty.”
In the instant case the city was performing the-same duties as the county was in the Johnson Case, and the Court therein held the county was perform ing purely a governmental function, and that it was performing it on behalf of the State highway commissioner, that is, the repair and maintenance of a State trunk-line highway. The city of Flint was performing a governmental function in maintaining Dort highway at the time and place in question in this suit, which it had no duty to perform except under the contract, it being the responsibility of the State to maintain such highway in a reasonably safe condition. In performing the functions of the State highway commissioner, the city is merely an arm of the State. Governmental immunity still exists as to the State highway commissioner. The motion for judgment non obstante veredicto should have been granted.
Judgment of the lower court should hereby be reversed and the case be remanded to the lower court for entry of a judgment non obstante veredicto. Costs to defendant.
Dethmers, C. J., and Carr, JJ., concurred with Kavanagh, J.
Kelly, J.
(for affirmance). The jury finding that plaintiff suffered injuries because the city of Flint negligently failed to provide barricades around holes in Dort highway, which the city was repairing, is not challenged by appellant city. Appellant endeavors to escape responsibility because the road it was repairing was a State trunk-line highway within its corporate limits.
Appellant’s brief contains the following statement:
“This is a case of first impression in this Court and as the trial court said in its opinion, ‘whichever way the court decides this case there will be gross inconsistencies.’ ”
Dort highway, traversing Flint in a northerly and southerly direction, is used not only by Flint motorists but by a large number of Detroit metropolitan motorists seeking recreation in Michigan’s North.
For over 60 years our legislature has held cities accountable to those who travel their streets, as is evidenced by the following quotation from this Court’s decision in Southwell v. City of Detroit (1889), 74 Mich 438, 441, 442:
“It was held in Detroit v. Blackeby, 21 Mich 84 (4 Am Rep 450), that the city of Detroit was not liable in its corporate capacity for the negligent acts of its officers which constituted nonfeasance only. Since the decision in that case the legislature has passed an act laying a duty upon municipalities to keep the streets under their control in repair. Section 4 of this act reads as follows:
“ ‘It is hereby made the duty of townships, villages, cities, or corporations to keep in good repair, so that they shall be safe and convenient for public travel at all times, all public highways, streets,, bridges, crosswalks, and culverts that are within their jurisdiction, and under their care and control, and which are open to public travel.’ How Stat § 1445.”
A comparison of our present statute with the statute quoted above discloses that the only change is-that where the statute originally held cities to a responsibility to keep their streets in “good repair,” it now requires the cities to keep their streets in “reasonable repair.”
Justice Kavanagh quotes from decisions of this Court dealing with cities’ rights to reasonable control of their streets as provided in the Constitution. These decisions do not give us the answer to the question presented in this appeal because there is no dispute between the city of Flint and the State of Michigan. The city sought and obtained the State’s consent to repair the highway at the State’s cost.
Cities have successfully, with this Court’s approval, resisted all efforts by the State highway commissioner to take exclusive command in deciding how traffic should flow through the respective cities on State trunk-line highways.
The claim is not made by appellant, nor by Justice Kavanagh, that the legislature expressly and definitely brought to an end the 65-year legislative mandate to cities, namely, to protect the motorist as he or she travels over the cities’ streets.
Justice Kavanagh asks in his opinion that the trial court’s refusal to enter judgment notwithstanding the jury’s award of $2,500 to plaintiff be reversed, because he reads into PA 1919, No 19, as amended (CL 1948 and CLS 1956, § 250.31 et seq. [Stat Ann and Stat Ann 1955 Cum Supp §9.881 et seg.]), a legislative intent to absolve cities for their negligent acts of commission and omission in not using reasonable care and means to protect motorists passing through cities on State trunk-line highways, and he states that “this construction has, in effect, been supported by legislative amendment. * * * CLS 1956, § 247.651 and CL 1948, § 247.651a, as added by PA 1957, No 262 (Stat Ann 1958 Rev §§ 9.1097[1], 9.1097 [la]).”
In Allen v. Rogers, 246 Mich 501, 508, 509, this Court, 10 years after the enactment of PA 1919, No 19, stated:
“But it is further urged that the Constitution gives to cities exclusive control of their streets and that fact prevents the State from assuming any control •over them. The Constitution does not so read:
“ ‘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, vil lages and townships.’ Section 28, art 8, Michigan Constitution of 1908.
“This section of the Constitution was construed by the Court in People v. McGraw, 184 Mich 233, 237, 238. After quoting from the proceedings and debates of the constitutional convention, it was said:
“ ‘From this, and also from reading the debates with reference to the insertion of the word “reasonable,” it is clear that it was not the intention of the framers of the Constitution to deprive absolutely the State itself of control over its highways and bridges in the cities, villages, and townships. * * * 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.’
“The State is committed to a comprehensive system of highway development which requires that it should extend its trunk-line roads through cities. The legislature has undertaken to bring this about by providing for cooperation between the cities and the highway department. Cooperation by the cities is not compulsory, but the proposition is made so attractive that, for financial reasons and for the general public good, cities are willing to cooperate. This they may do without relinquishing their constitutional right to a reasonable control of their streets.”
The legislature, undoubtedly, was aware of the following facts, of which this Court will take judicial notice: (1) the large number of cities traversed by State trunk lines; (2) that said trunk lines create as great or greater traffic problems than are created on other streets within a city’s boundaries; (3) that while a large percentage of the motorists are not taxpayers or residents of the city, said trunk lines are extensively used by residents of the city; (4) that the State highway commissioner has no representa tive residing or working in numerous cities traversed by trunk lines.
A State functions through its numerous officials on township, village, city and county levels, and it is self-evident that this State cannot meet its responsibilities to assist and protect motorists without the combined efforts of those on local levels.
We draw no distinction between the rights of the citizen of Flint, driving on a State trunk line within the limits of Flint, and motorists who come to Flint’s boundaries from distant points. We reiterate a statement from a decision of the United States supreme court in Detroit v. Osborne (1890), 135 US 492, 499 (10 S Ct 1012, 34 L ed 260):
“The city of Detroit, in the discharge of its public duty in respect to keeping the streets and sidewalks in repair, is under no higher or different obligations to a citizen of Ohio than to one of the State of Michigan.”
I cannot agree with my Brother’s conclusion that the legislature has excused the city from liability to motorists traveling on a State trunk line within the city’s limits.
I prefer to construe the statute to mean that the legislature, realizing the wear and tear on the pavement of streets within cities which carry the so-called load of “through traffic,” decided that the State should bear the expense of maintaining and keeping such streets within the cities’ boundaries in repair. I cannot construe, however, a legislative intent to mean that while the legislature was holding the cities to a definite responsibility of using reasonable care for the motorists on the least traveled of their corporate streets, that it completely excused the cities from ány such responsibility toward the problem street, namely, the State trunk line passing through the respective cities.
Six years after the legislature enacted PA 1919, No 19, it enacted PA 1925, No 17 (CL 1948, § 250.61 et seq. [Stat Ann 1958 Rev § 9.901 et seq.]), relieving counties and townships from all legal liability in regard to State trunk lines traversing townships or counties, as is evidenced by the following:
“On and after the 1st day of January, A.D., 1926, the cost of constructing, improving and maintaining trunk-line highways shall be met entirely by the State, and the counties and townships shall thereafter be relieved of all expenses and legal liabilities in connection therewith.’’
No act, including PA 1957, No 262, excused cities from legal liability in respect to State trunk lines within city limits.
Until such time that the legislature includes cities with townships and counties in exemption from legal responsibility, I can only conclude the legislature did not intend the construction my Brother places on PA 1919, No 19.
I cannot agree that Justice-Kavanagh’s construction of PA 1919, No 19, has in effect been supported by the legislative amendment in 1957. Justice Kavanagh refers to CLS 1956, § 247.651 and section la of the 1957 act (CL 1948, § 247.651a) which establish that the State trunk-line system consists of all roads, streets and highways either located within or outside the limits of incorporated cities and villages; that additions to and deletions from the State highway system may be made from time to time in manner prescribed by law; that said trunk line shall be constructed, maintained and improved in accordance with the provisions of the act under the direction, supervision and control of the State highway commissioner.
The following sections of this same 1957 act are not discussed in the opinion from which I dissent, but I believe they should be considered in determining legislative intent. I refer to PA 1957, No 262, §§ lb, lc and 18i. Section lb provides:
“The State highway department shall bear the entire cost of maintaining, in accordance with standards and specifications of the department, all State trunk-line highways including such highways within incorporated cities and villages except that the cost of maintaining additional width for local purposes as provided in section lc of this act shall be borne by the city or village. For the purposes of this act, maintaining of State trunk-line highways shall include, by way of enumeration but not limitation, snow removal, street cleaning and drainage, seal coating, patching and ordinary repairs, erection and maintenance of traffic signs and markings and the trunk-line share of the erection and maintenance of traffic signals, but shall not include street lighting, resurfacing, new curb and gutter structures for widening.” (CL 1948, § 247.651b [Stat Ann 1958 Rev § 9.1097(lb)].)
Section lc provides:
“The State highway department shall bear the cost of opening, widening and improving, including construction and reconstruction, in accordance with standards and specifications of the department, all State trunk-line highways, subject to the following provisions:
“(a) Incorporated cities and villages shall participate with the State highway department in the cost of opening, widening and improving, including construction and reconstruction of State trunk-line highways within cities and villages to which may be added, subject to the approval of the State highway ■commissioner, streets that are connecting links of trunk-line highways or streets as are hereafter made connecting links of trunk-line highways, according to the following schedule subject to the definition of population as provided in section 13 of this act:
“(1) In cities and villages having a population of 50,000 or more, 25% of the cost shall be borne by the city or village, and 75% by the State highway department ;
“(2) In cities and villages having a population of 40.000 or more and less than 50,000 22-1/2% of the cost shall be borne by the city or village, and 77-1/2% by the State highway department;
“(3) In cities and villages having a population of 30.000 or more and less than 40,000,17-1/2% of the cost shall be borne by the city or village, and 82-1/2% by the State highway department;
“(4) In cities and villages having a population of less than 30,000, the State highway department shall bear the entire cost.
“(b) For the purposes of this act, opening, widening and improving, including construction and reconstruction, of State trunk-line highways, shall include, but not by way of limitation, the cost of right-of-way ; the cost of removal and replacement of sidewalks, street lighting, curbing, where such removal and replacement is made necessary by construction or reconstruction of a trunk-line highway; and the cost of bridges and structures, including that part of the cost of grade separation structures not paid by the railroad companies.
“(c) In any city or village, the width of a State trunk-line highway shall be the width required to serve anticipated future traffic needs for a 20-year period as determined by a State highway department transportation survey, which width, except as prescribed below, shall not be less than (1) the currently accepted standards prescribed for a 4-lane highway, (2) such width as may be built on the same trunk-line route immediately beyond and adjacent to either legal boundary of the city or village, or (3) on trunk lines eligible for Federal highway funds, such width as may be prescribed by the Federal government, whichever width is greater. The State highway department and the governing body of a , city or village by mutual agreement may determine that tbe width of a State trunk-line highway shall be less than the width prescribed above.
“(d) If any city or village shall desire to widen a State trunk-line highway for local purposes beyond the width prescribed above, the entire cost of the extra width, less any Federal highway funds which may be allocated to the portion of the project by the highway department, shall be borne by the city or village.” (CL 1948, § 247.651c [Stat Ann 1958 Rev § 9.1097(lo)].)
Section 18i reads:
“The provisions of this act shall be construed as cumulative authority for the exercise of the bonding powers herein granted and shall not be construed to repeal any existing laws with respect thereto, it being the purpose and intention of this act to create full and complete additional and alternate methods and means for the exercise of such powers. The powers conferred by this act shall not be affected or limited by any other statute or by any charter, except as otherwise herein provided.” (CL 1948, § 247.668Í [Stat Ann 1958 Rev § 9.1097(18i)].)
The 1957 amendment (PA 1957, No 262) reaffirms the 1929 decision of Allen v. Rogers, supra, that while the State will bear the cost of additional wear and tear because of through traffic on trunk lines through city streets, the cities’ duty to use reasonable care to provide and protect motorists as they pass through those streets has not been eliminated.
■ Consequently, I cite with approval and in complete agreement the following from the opinion of Hon. Philip Elliott, circuit judge of the county of Genesee:
“Under the statutes above quoted there is still a duty on the part of the city to keep in reasonable repair ‘all public highways, streets (et cetera) which are within their jurisdiction and under their care and control, and which are open to public travel.’ CL 1948, § 242.3 (Stat Ann 1958 Rev § 9.593). The court does not believe that any of the statutes cited by defendants removes this duty, nor can the city avoid it by entering into a contract with the State highway commissioner. If the necessary elements of negligence by employees of the city are proven, one who is injured thereby on a trunk-line highway can recover even if the city has a contract with the State highway commissioner for full reimbursement of the cost. Such a one who is so injured comes within the terms of liability set forth in CLS 1956, § 242.1 (Stat Ann 1958 Eev § 9.591). The motion for judgment notwithstanding the verdict is denied.”
Affirmed. Costs to appellee.
Smith, Black, and Voelker, JJ., concurred with Kelly, J.
Edwards, J.
(for reversal). I concur with Mr.Justice Kavanagh’s interpretation of the confused and conflicting statutes which this case requires us to construe. This compels reluctant concurrence likewise in reversal under the present holding of this Court on the doctrine of governmental immunity. See writer’s opinions in Richards v. Birmingham School District, 348 Mich 490; and Penix v. City of St. Johns, 354 Mich 259.
OLS 1956, §247.651; and CL 1948, §§ 247.651a, 247.651b, as added by PA 1957, No 262 (Stat Ann 1958 Rev §§ 9.1097[1], 9.1097 [la], 9.1097[lb]).
See OLS 1956, § 242.1 (Stat Ann. 1958 Rev § 9.591). — Repostes- | [
-55,
44,
-20,
14,
-38,
-10,
-17,
5,
17,
-8,
10,
-18,
58,
-43,
-15,
8,
-11,
15,
-28,
27,
-12,
-22,
25,
-37,
-53,
29,
20,
-35,
-4,
6,
-22,
4,
22,
50,
-32,
37,
40,
3,
-22,
42,
19,
10,
-17,
-58,
29,
-2,
25,
7,
21,
-13,
-87,
17,
2,
-24,
-1,
-12,
-6,
-16,
-63,
-6,
15,
-1,
25,
35,
11,
-19,
29,
77,
26,
9,
-29,
74,
0,
-20,
7,
11,
-19,
-4,
-15,
22,
-13,
15,
52,
3,
-14,
9,
-73,
1,
-86,
-26,
-25,
-34,
18,
-5,
9,
16,
-49,
-9,
-4,
-5,
-41,
71,
17,
-5,
-8,
-10,
-9,
-66,
-33,
-12,
-15,
7,
-4,
-59,
-2,
-27,
77,
25,
64,
38,
6,
3,
-2,
-20,
-31,
-2,
14,
-43,
-10,
-26,
41,
-16,
18,
50,
-3,
39,
14,
-29,
4,
58,
-15,
-23,
-18,
-4,
-31,
84,
18,
-8,
-18,
-24,
-22,
-21,
55,
-21,
-33,
-19,
-12,
13,
54,
0,
16,
8,
49,
15,
-48,
-18,
-12,
30,
31,
27,
6,
-32,
31,
-64,
27,
22,
-26,
-13,
-58,
26,
22,
-16,
53,
-3,
-23,
-65,
2,
-29,
-4,
-10,
65,
24,
-51,
-22,
-26,
47,
7,
7,
-9,
-17,
82,
-67,
1,
-45,
13,
23,
-15,
4,
61,
-3,
10,
-22,
4,
13,
30,
0,
20,
-12,
15,
-65,
25,
1,
52,
15,
-9,
16,
-49,
-40,
32,
-71,
41,
-40,
53,
15,
-28,
7,
30,
-6,
42,
-13,
-2,
54,
-30,
-20,
37,
-38,
-51,
-54,
-8,
38,
38,
17,
-47,
-37,
-18,
33,
18,
18,
-20,
40,
35,
39,
-34,
10,
-2,
-3,
-44,
29,
-9,
-43,
-9,
-20,
43,
-13,
-65,
-6,
5,
10,
33,
47,
-53,
-27,
-26,
-4,
48,
57,
-32,
23,
2,
-61,
8,
-62,
-25,
6,
23,
56,
68,
-45,
-40,
11,
-17,
27,
-27,
70,
45,
2,
-16,
15,
18,
24,
1,
-33,
5,
40,
4,
45,
56,
50,
21,
-14,
19,
96,
-12,
23,
-30,
-18,
11,
-4,
-47,
-6,
47,
12,
-17,
12,
5,
-87,
9,
-23,
-31,
11,
17,
41,
21,
17,
-43,
-4,
10,
-10,
27,
-3,
-71,
-32,
53,
-12,
-17,
27,
17,
18,
-32,
30,
10,
37,
12,
22,
-33,
-31,
-14,
20,
-22,
79,
-5,
-36,
2,
41,
-38,
-75,
38,
-11,
-25,
59,
56,
-27,
11,
-66,
7,
-36,
-16,
-29,
-44,
0,
-34,
-61,
9,
23,
-14,
5,
2,
36,
-70,
-21,
-4,
22,
-2,
5,
-31,
33,
1,
-39,
7,
-16,
-40,
-35,
-10,
9,
-28,
-18,
54,
19,
9,
-29,
-5,
54,
16,
-88,
10,
-27,
20,
27,
0,
3,
34,
31,
36,
-35,
29,
-16,
-51,
-53,
6,
-31,
-4,
19,
46,
18,
4,
9,
-28,
43,
-24,
-12,
70,
59,
3,
23,
-25,
16,
-8,
13,
33,
13,
-43,
-47,
10,
-42,
-11,
-1,
-35,
-14,
-4,
-15,
-15,
33,
-30,
-7,
4,
-55,
34,
12,
28,
-12,
-18,
18,
0,
-5,
-14,
-34,
81,
60,
-11,
-14,
71,
-11,
-28,
1,
27,
6,
-55,
58,
-1,
-42,
-9,
17,
-80,
-14,
-3,
-20,
-27,
13,
-33,
5,
-19,
25,
41,
-7,
14,
-28,
-18,
-4,
24,
-27,
-58,
-7,
-48,
-14,
-2,
22,
-37,
0,
-25,
-7,
36,
-41,
-10,
27,
-1,
-7,
6,
51,
-2,
18,
25,
29,
28,
-40,
41,
-64,
-8,
35,
49,
29,
-3,
-19,
-11,
-40,
-18,
5,
25,
0,
26,
14,
-27,
-25,
17,
5,
28,
38,
17,
-28,
54,
-71,
-60,
13,
54,
-22,
-27,
33,
-18,
-7,
-37,
-1,
5,
-11,
-34,
-1,
-24,
-13,
58,
-48,
-2,
-14,
-16,
-2,
-19,
2,
28,
26,
32,
30,
-47,
0,
84,
-63,
-22,
43,
48,
10,
11,
-36,
19,
22,
0,
-9,
-26,
-40,
-26,
-8,
-12,
-9,
70,
-8,
38,
8,
35,
45,
-14,
43,
9,
-17,
-70,
-16,
-54,
35,
-79,
4,
21,
14,
15,
44,
23,
-2,
-4,
-12,
54,
-31,
-34,
0,
-11,
-20,
-80,
25,
-37,
44,
-10,
37,
14,
25,
-25,
20,
-31,
-24,
10,
12,
-30,
-45,
-36,
-6,
28,
-24,
12,
-50,
4,
14,
5,
-6,
19,
-29,
10,
38,
16,
3,
17,
-23,
25,
-23,
47,
-13,
-11,
-10,
16,
-32,
-19,
38,
-42,
-25,
4,
31,
13,
35,
-31,
-20,
-22,
-33,
-36,
9,
-42,
19,
15,
-19,
32,
7,
3,
25,
-16,
35,
35,
48,
6,
-28,
-55,
18,
-34,
-38,
-33,
-42,
-11,
-54,
-39,
-8,
-72,
41,
38,
13,
21,
9,
-3,
-68,
14,
25,
-14,
-55,
22,
-13,
19,
-23,
-17,
-27,
38,
47,
-2,
3,
-51,
3,
28,
-50,
-14,
-52,
24,
-6,
-74,
48,
-14,
-33,
57,
-2,
0,
-5,
51,
37,
-11,
-3,
-10,
38,
-4,
-38,
-27,
37,
-22,
-49,
-40,
-27,
21,
-10,
36,
-25,
-8,
-18,
15,
-5,
9,
-22,
5,
-4,
19,
-37,
-19,
9,
40,
47,
5,
-5,
-8,
25,
9,
-24,
32,
-15,
0,
-14,
29,
34,
-46,
-14,
32,
8,
51,
0,
-11,
38,
-52,
-2,
-2,
15,
-23,
-21,
-3,
-11,
-17,
-43,
16,
-43,
46,
8,
-46,
4,
-1,
47,
9,
14,
-20,
18,
82,
24,
2,
-39,
-6,
32,
-11,
-9,
-53,
48,
-34,
-17,
14,
-4,
51,
54,
-31,
-33,
-13,
-18,
35,
-22,
-101,
-7,
-22,
41,
-24,
-13,
-42,
21,
19,
33,
14,
14,
13,
-18,
15,
-79,
7,
-43,
-4,
1,
75,
33,
1,
-16,
-22,
-41,
8,
44,
36,
42,
8,
-4,
-77,
17,
-11,
48,
-7,
-20,
14,
28,
-4,
10,
-23,
-29,
30,
-17,
6,
37,
-31,
-11,
-6,
-8,
-1,
0,
-36,
-27,
-24,
-9,
1,
-3,
-19,
-8,
-42,
-3,
-50,
23,
1,
28,
-22,
-39,
-15,
15,
13,
-6,
56,
-17,
-47,
-60,
18,
31,
-32,
2,
-9,
-15,
-2,
29,
-22,
13,
68,
-19,
-11,
49,
-15,
-42,
11,
-3,
27,
33,
64,
84,
2,
-22,
16,
-9,
72,
-57,
-17,
63,
38,
22,
-4,
-9,
11,
-24,
-3,
-3,
25,
-48,
7,
-60,
2,
49,
-38,
-47,
9,
-69,
-26,
20,
-7,
41,
-22,
-7,
0,
-23,
3,
40,
-8,
1,
32,
7,
-24,
26,
-15,
18,
52,
30,
69,
2,
-18,
40,
0,
-39,
1,
93,
-85,
26,
-8,
-21,
50,
-48,
5,
53
] |
North, J.
This is an appeal by one Bert McFarlane from the disallowance of a claim which he filed against the estate of Nellie G. Jorgenson, deceased, the case having been heard in the circuit court without a jury. The claimant, Bert McFarlane, went to live as a roomer and boarder in the home of Mrs. Jorgenson, a divorcee, in February or March, 1936. He continued to reside there until the date of her death, March 25, 1943, at approximately 54 years of age. During the above period Mrs. Jorgenson owned and occupied a modest home, subject to a mortgage, on McCullough street in Lansing. Evidently she was of limited financial means and to sustain herself had taken boarders and roomers, taken in washings, et cetera. McFarlane claims that shortly after he went to the home of Mrs. Jorgenson he began paying many, if not all, of the household bills; although during at least a portion of the time he resided with Mrs. Jorgenson she was on the public welfare. During the whole of that period her home, because of her circumstances, was exempt from taxation. After McFarlane went to reside with Mrs. Jorgenson she ceased taking other boarders or roomers and discontinued taking in washings. The record further shows that during the period from 1936 to March 25,1943, something in excess of $1,000 was paid upon the principal and interest of the mortgage upon the Jorgenson home; that many repairs or improvements were made on the home property, and to some extent it was remodeled. There was papering and painting on the interior, exterior painting, a new roof, steps rebuilt, cement drive constructed, repairs to the furnace, new foundation under the garage, et cetera. It is the claim of McFarlane that he personally performed or paid for the labor incident to the above and that he paid out of his own funds the cost of materials used.
In September, 1938, Mrs. Jorgenson’s mother deeded her home in Ovid, which was located on four lots, to Mrs. Jorgenson. In part McFarlane’s claim against the Jorgenson estate consists of items of labor and material which he claims he furnished incident to repairing or improving the Ovid property-after it was deeded to Mrs. Jorgenson, it being claimed that these improvements were made in anticipation of Mrs. Jorgenson disposing of the Lansing property whereupon she and McFarlane would occupy the Ovid property. In fact shortly prior to her death, which was rather sudden, Mrs. Jorgenson entered into a contract for the sale of her Lansing property and the transaction was consummated by deed subsequent to her death. The repairs or improvements to the Ovid property were to a great extent of the same general character as those hereinbefore referred to which were made on the Lansing property.
There is also included in McFarlane’s claim, items (not detailed) incident to the maintenance of the household, such as expenditures for coal, groceries, clothing, doctor and dental bills and incidentals. In the circuit court McFarlane, to whom we refer herein as plaintiff, asserted a right to recover both on the ground of an express contract or agreement, and also on the ground of an implied contract. In contesting plaintiff’s claim, the position of the estate is indicated by the following from its brief:
“There has been no showing in the case that the deceased was going to or expected to be charged with the items claimed and if the items were expended upon the premises that must be regarded as' purely voluntary services rendered on the part of the claimant in the absence of the deceased. There is-no place in the record wherein the deceased committed herself in any manner whatsoever to pay for the items claimed. The action on the part of the claimant therefor necessarily must have been voluntary.”
As above indicated the trial judge disallowed in toto McFarlane’s claim. In so doing the circuit judge concluded that plaintiff had failed to establish a right to recover on either the theory of an express contract or an implied contract. Our review of this record brings the conclusion that, as the circuit judge stated in his opinion, “There is no proof of any express contract;” but we are of the opinion that he was in error in concluding that the testimony did not establish an implied contract under which plaintiff is entitled to recover at least as to a portion of his claim.
At the outset we must be mindful of the following propositions of law. The burden of establishing a right to recover as to each item included in his claim is upon plaintiff. Also, in considering the testimony and inferences to be drawn therefrom, it must be borne in mind that as between MeFarlane and the deceased there was no relationship either by blood or marriage in consequence of which a presumption would arise that the services rendered and expenditures made bv MeFarlane were without expectation of compensation therefor. See Pupaza, v. Laity, 268 Mich. 250. Another pertinent principle of law has been stated as follows: “A contract implied in fact arises when services are performed by one who at the time expects compensation from another who expects at the time to pav therefor.” In re Pierson's Estate, 282 Mich. 411, 415.
Decision of this case necessitates somewhat of a review of the testimony which plaintiff contends establishes: (1) An expectation or contemplation on the part of each of the parties eoncenied in the above noted transactions that he should be compensated; and (2) what the fair amount of such compensation should be determined to be.
By plaintiff’s own testimony it was uncontrovertedly disclosed that during the period he lived in the Jorgenson home he earned in his employment approximately $6,000; and out of this sum $2,000 to $2,500 was used by him otherwise than incident to. the items for which he seeks to recover in this case. He also testified that at the time of Mrs. Jorgenson’s death, “I did not have any of my earnings left.” This testimony was offered as bearing upon his financial ability to have made the alleged expenditures in behalf of Mrs. Jorgenson. Aside from plaintiff, whose testimony, taken over objection, was competent only to the extent that it was not disclosed by the record to have been equally within the knowledge of the deceased, eight disinterested witnesses testified in support of at least some phase of his .claim.
By the testimony of these other witnesses Mrs. Jorgenson’s financial inability to have met the various expenditures was disclosed. As to testimony bearing upon expectation on the part of the respective parties that plaintiff should be compensated, we quote the following as a portion of the testimony given by disinterested witnesses. Lionel J. Devereaux, who was quite intimately acquainted with each of the parties, in part testified as follows:
“When I was there (in the Jorgenson home) Mr. McFarlane was doing the work himself, like cement-. ing the drive and painting the house and fixing. He was performing the labor. Mrs. Jorgenson told me that the expenses in connection with the purchasing of material came from Bert’s (Mr. McFarlane) earnings. * * * I talked with both Mrs. Jorgenson and Mr. McFarlane about installing a new heating plant in the Ovid home. Any talk that I had with Mr. Mc-Farlane in regard thereto was in the presence of Mrs. Jorgenson and my talk with Mrs. Jorgenson was in his presence. * * * She told me that it was to be Bert’s home, * * * that it was to he his property. She told me that it was to be his because he put so much money into the McCullough street (Lansing) property and so much money in the Ovid home in repairing both of them that this was to be his reimbursement for his work and the expense. * * * Mrs. Jorgenson told me that the reason she was making the title of the Ovid property over to Bert (which was never accomplished) was that it was to be his reimbursement for the work he had put in and the expense of the two places. * * * Her statement that the title to the Ovid property was being made over to Bert and the reason therefor was made in Bert’s presence, just the three of us were there.”
Mrs. Gertrude Hess, who had been a friend of Mrs. Jorgenson for many years, in part testified:
“Nellie (Mrs. Jorgenson) was making the changes hut she told me that Bert was making the repairs and paying the bills. I was over there when he was doing the work. Mrs. Jorgenson told me that she was fixing things so that if anything happened to her Bert would get his pay for what he was doing there. * # # She also told me that Bert was paying the ordinary household expenses, buying the coal, paying the gas bills and everything. * * * She said that she was going to fix things so that Bert would get his pay if anything happened to her. She didn’t tell me that they had any agreement regarding that.”
A son-in-law of Mr. Joseph Henry Ross evidently was contemplating the possibility of purchasing Mrs. Jorgenson’s Lansing home; and in that connection Mr. Ross, who had known Mrs. Jorgenson for 10 or 12 years and who appears to have known considerable concerning Mr. McParlane’s doings about the Jorgenson home, testified:
“I said to her (Mrs. Jorgenson) ‘Where does Bert come in on this providing it is sold?’ ‘Why,’ she said, ‘I will see that Bert gets his pay.’ That is the remark she made. * * * She made a remark to me that she had arranged for Bert to get his pay and I asked her if she had made out a will and she said ‘yes’ she had bnt come to find out I guess it was not that way. * * * She denied that he (McFarlane) had any interest in it (the Lansing property) hut said that he would get his pay whatever it was. She did not tell me what was due or owing him.”
A sister of plaintiff, Mrs. Flossie Johnson, who knew Mrs. Jorgenson over a period of 6 or 7 years immediately preceding her death and who visited hack and forth with Mrs. Jorgenson, testified:
“Mrs. Jorgenson and I sat in the room talking and he (plaintiff) was working. She never said anything about paying him in cash for the work he did. The only way she ever spoke for paying him was by leaving her property to him.”
On cross-examination plaintiff testified: “I did not intend to file a claim against the estate although I intended to get my pay for what I did there.”
No testimony was produced in'behalf of the estate which materially conflicted with or contradicted that above quoted. In fact the only witness who testified in behalf of the estate was Mrs. Clara Whaley, the wife of Carl Whaley, who is an heir to the Jorgenson estate. We have found nothing in her testimony which has a material bearing upon the phase of the case now under consideration. Our conclusion from a review of this record is that there was ample uneontradicted competent testimony by which it was proven that plaintiff not only furnished labor and materials for the benefit of Mrs'. Jorgenson, but that he did so with the expectation and intent on the part of each of them that McFarlane would be compensated therefor by Mrs. Jorgenson.
In addition to the foregoing, it was essential to plaintiff’s recovery that he should establish by competent testimony the fair amount of each item of his claim to be allowed. On this phase of the case there was no testimony except that given by plaintiff, all of which was taken subject to the objection of its being as to matters equally within the knowledge of deceased. Plaintiff took the position that his testimony as to the reasonable value of certain items of his claim was competent unless it appeared in the record, or was a fair inference therefrom, that such testimony was of facts equally within the knowledge of deceased. In this respect plaintiff’s position was sound. It is in accord with our holdings in Wheeler v. Arnold, 30 Mich. 304; Webster v. Sibley, 72 Mich. 630; Moore v. Machen, 124 Mich. 216; Kwiecinski v. Newman’s Estate, 137 Mich. 287; and Hanna v. McClave, 271 Mich. 133. A headnote in the Hanna Case reads:
“That the fact, if true, was equally within the knowledge of deceased, must affirmatively appear and may not be inferred, in order to bar opposite party’s testimony thereto under the statute.”
Our review of this record brings the conclusion that, applying the above rule and other applicable rules of evidence to the testimony, plaintiff is entitled to recover as to certain of his itemized claims, but as to others he is not entitled to recover. First we will particularize as to the various allowable items of plaintiff’s claim other than those connected with the Ovid property.
We find the following items of this portion of plaintiff’s claim should be allowed and in the following amounts: Roofing, Lansing house, $100; painting house, $75; repairing chimney, $3.50; porch foun dation and cement steps, $30; cementing driveway, $90; removing wallpaper and interior painting, $40; cistern, grade door and basement steps, $25; siding on back room, $8; cleaning and repairing furnace, new pipes and register, $18.68; removing doors and constructing archway, $16; work on and material for garage, $75. Total $481.18.
As to items of plaintiff’s claim pertaining to the Ovid property, we find from the record that the following should be allowed in the amounts indicated: Roofing house, $90: painting house, $f00; interior painting and papering, $20; material and labor for partition, $10; porch foundation and wall, $25; funeral bill, paid to discharge lien on Ovid property, $60; moving, roofing, and foundation of shed, $30; work on drain and cesspool, $6; seeding lots, $5; fumigating house, $20. Total $366.
Except as hereinbefore stated, the items of plaintiff’s claim should be and are disallowed for one or more of the following reasons. Under the statutory rule excluding testimony equally within the knowlledge of the deceased (3 Comp. Laws 1929, § 14219 [Stat. Ann. § 27.914]), the claims disallowed, or the reasonable amounts thereof, were not proven by competent testimony. Touching such items as groceries, coal, clothing, et cetera, it must be concluded from the record that the amount or fair value thereof was equally within the knowledge of Mrs. Jorgenson and, hence, plaintiff’s testimony, which was the only testimony as to the amount or value of these and similar items, was incompetent. As to some of the items disallowed the testimony was too indefinite, uncertain and speculative to justify the allowance of such items.
The judgment entered in the circuit court disallowing in tato plaintiff’s claim is reversed and the case remanded to the circuit court with instructions to enter a judgment allowing plaintiff’s claim in the sum of $847.18, and to certify such allowance to the probate court. Plaintiff will have costs of both courts.
Bushnell, C. J., and Sharpe, Boyles, Reid, Dethmers, Butzel, and Carr, JJ., concurred. | [
-9,
37,
-50,
-40,
32,
-22,
24,
28,
35,
0,
-16,
-12,
27,
2,
-12,
16,
-40,
-66,
38,
1,
21,
-30,
-4,
-13,
-3,
-36,
19,
2,
-14,
9,
9,
-15,
-34,
13,
53,
7,
-11,
14,
-4,
31,
-3,
-70,
47,
27,
5,
32,
17,
1,
-9,
5,
-44,
-17,
5,
19,
57,
1,
-23,
20,
-8,
50,
29,
-25,
42,
-34,
0,
28,
8,
13,
-10,
-21,
56,
-6,
17,
-45,
0,
30,
-8,
2,
-13,
47,
-8,
-68,
57,
20,
-2,
-42,
4,
-27,
-25,
12,
-44,
23,
29,
87,
-11,
-7,
-25,
56,
70,
23,
20,
8,
-4,
-1,
3,
-50,
5,
-22,
7,
17,
9,
15,
46,
9,
17,
11,
18,
1,
-36,
7,
0,
55,
-1,
-49,
10,
51,
13,
19,
24,
8,
-1,
7,
-19,
-28,
-27,
-50,
44,
-21,
31,
-26,
32,
64,
-24,
-13,
-7,
10,
-13,
-13,
20,
-21,
-27,
-2,
20,
15,
15,
-15,
21,
6,
9,
-58,
-27,
-21,
12,
-56,
-1,
-35,
12,
45,
36,
6,
35,
-13,
-54,
-34,
30,
-3,
27,
-57,
-39,
9,
-6,
0,
32,
0,
-34,
-20,
63,
-24,
-10,
0,
43,
0,
12,
0,
-15,
23,
7,
-13,
-9,
33,
16,
36,
12,
-48,
42,
-52,
-1,
0,
-25,
-2,
0,
-34,
-14,
0,
-18,
49,
9,
1,
-11,
-2,
-20,
0,
5,
11,
9,
-5,
23,
-49,
8,
13,
5,
20,
17,
-11,
-47,
-21,
11,
14,
-5,
13,
7,
16,
-6,
-7,
5,
-26,
-81,
13,
14,
9,
9,
-30,
-36,
-3,
-37,
47,
1,
28,
49,
-3,
1,
-19,
-12,
5,
5,
-1,
-10,
33,
-9,
20,
4,
11,
6,
-10,
-65,
-38,
-17,
-12,
-4,
-14,
-15,
-21,
10,
-25,
-35,
2,
6,
-41,
-19,
-38,
26,
-34,
-5,
-33,
44,
35,
-50,
-65,
17,
12,
-66,
1,
42,
-34,
51,
-46,
10,
-41,
3,
35,
9,
-31,
28,
-32,
11,
-1,
-27,
-19,
0,
10,
38,
-31,
-52,
17,
1,
30,
-16,
-35,
-32,
24,
9,
-22,
-31,
9,
-17,
4,
-24,
-12,
37,
-62,
25,
41,
-20,
12,
-20,
-15,
9,
-1,
10,
51,
-27,
12,
-9,
31,
-20,
13,
32,
5,
-38,
16,
34,
34,
9,
-19,
-17,
-12,
32,
-80,
36,
14,
41,
-3,
-59,
18,
29,
0,
-52,
-7,
20,
12,
5,
3,
8,
64,
4,
-21,
-24,
-16,
-16,
24,
-53,
13,
-10,
-22,
6,
-11,
23,
-8,
-48,
-18,
-32,
25,
-31,
16,
-23,
3,
-9,
-41,
-54,
44,
-4,
-3,
21,
13,
39,
-36,
31,
-18,
18,
23,
66,
92,
43,
-14,
30,
-34,
8,
14,
6,
-33,
-7,
22,
0,
-5,
15,
-29,
-37,
28,
-25,
7,
-10,
12,
42,
32,
-15,
1,
-32,
25,
54,
-23,
-27,
45,
-7,
-13,
-32,
-34,
75,
-52,
33,
-12,
-2,
-42,
24,
21,
17,
41,
-29,
38,
1,
54,
26,
17,
28,
-67,
-25,
-8,
9,
-5,
32,
31,
5,
-28,
-9,
-15,
-7,
-1,
-17,
-15,
-41,
-9,
78,
-9,
-45,
38,
4,
-26,
-1,
2,
32,
19,
-25,
-20,
43,
-23,
35,
-45,
-13,
-58,
20,
-3,
-3,
-43,
3,
10,
-16,
25,
67,
-27,
-13,
0,
-51,
4,
-64,
21,
8,
18,
32,
49,
3,
6,
-3,
-2,
-28,
41,
-18,
-45,
15,
27,
19,
13,
12,
47,
33,
36,
-31,
0,
-30,
1,
-23,
-30,
-22,
-17,
-55,
6,
11,
7,
13,
-10,
-41,
21,
16,
-5,
42,
-19,
11,
-41,
-24,
-8,
33,
-35,
-15,
-27,
-13,
-37,
-25,
16,
-9,
-29,
-21,
51,
-27,
13,
0,
3,
-1,
19,
-39,
40,
-16,
56,
-4,
19,
-64,
5,
-45,
-52,
-10,
-2,
-19,
-70,
21,
6,
-15,
-6,
-17,
1,
-34,
0,
27,
-34,
31,
36,
-11,
38,
6,
8,
3,
-65,
-10,
-40,
31,
-25,
-29,
-21,
-13,
-10,
-24,
34,
-25,
13,
30,
-1,
36,
21,
-25,
-9,
11,
-1,
-8,
-6,
3,
3,
-25,
39,
-36,
2,
50,
-32,
-10,
0,
-44,
60,
-6,
40,
12,
-30,
16,
7,
5,
-32,
50,
-18,
-14,
-24,
22,
26,
19,
12,
-13,
53,
-14,
-12,
-10,
79,
-37,
-10,
-72,
-8,
43,
-12,
-6,
6,
9,
27,
37,
1,
-14,
-18,
-44,
-5,
52,
-13,
-6,
-26,
-32,
17,
-42,
13,
50,
29,
10,
-3,
38,
7,
-45,
-13,
-27,
-85,
-38,
-50,
-70,
39,
46,
-45,
-3,
56,
1,
-58,
-6,
-3,
54,
-67,
-20,
-30,
17,
-11,
62,
25,
-25,
-4,
-12,
30,
-11,
12,
-3,
26,
-12,
54,
-1,
-2,
-6,
8,
-9,
29,
-47,
14,
33,
-22,
12,
55,
-33,
78,
9,
40,
-13,
-39,
20,
39,
-4,
-32,
7,
-8,
-3,
15,
-25,
39,
-63,
7,
26,
-33,
13,
37,
0,
-32,
10,
7,
0,
40,
57,
34,
23,
-32,
-31,
0,
-52,
-8,
1,
-18,
73,
18,
-58,
0,
11,
-27,
-32,
-13,
-36,
-31,
0,
18,
-20,
-6,
16,
46,
8,
8,
-53,
15,
-17,
39,
-7,
-20,
-6,
-28,
-58,
47,
1,
43,
-25,
34,
19,
33,
-29,
-35,
4,
-10,
-6,
10,
-4,
15,
24,
-7,
-31,
37,
19,
-3,
-5,
67,
2,
-32,
-44,
34,
-22,
24,
-19,
-25,
-20,
16,
-14,
-29,
13,
-56,
-10,
33,
-30,
-52,
4,
-28,
59,
-13,
-12,
-9,
-5,
10,
-9,
-9,
9,
-1,
12,
-9,
-25,
-21,
14,
-50,
25,
13,
30,
-14,
8,
9,
5,
16,
-19,
14,
18,
54,
-16,
42,
13,
6,
31,
35,
10,
4,
-3,
17,
-3,
-30,
-14,
-25,
-25,
3,
-39,
0,
-34,
13,
-44,
-6,
9,
-21,
-10,
-41,
-23,
-7,
-8,
-6,
-49,
47,
-77,
34,
-7,
-46,
-80,
-19,
8,
-34,
27,
-39,
-60,
67,
-43,
-40,
-48,
54,
51,
1,
-3,
-46,
17,
-43,
3,
31,
4,
4,
4,
-35,
18,
15,
32,
14,
8,
12,
49,
52,
15,
18,
-36,
-15,
9,
19,
-12,
5,
38,
2,
67,
-12,
40,
60,
-15,
-48,
2,
-50,
-19,
-29,
-31,
-49,
33,
42,
-30,
-44,
46,
1,
-54,
29,
-11,
-59,
-3,
-16,
-34,
6,
62,
-10,
21,
6,
11,
0,
42,
31,
26,
6,
24,
-28,
21,
25,
65,
13,
19,
-8,
28,
-42,
-50,
-31,
3,
7,
-18,
3,
0,
25,
-5,
-52,
27,
-30,
-11,
29
] |
Btjtzel, J.
In 1928 Auguste L. Kutsche, a spinster almost 80 years of age, sought the assistance of counsel for the express purpose of so placing hér property as to relieve herself of the burden of its management, and to put it beyond her power to yield to the demands of importuning relatives. Counsel suggested the creation of an irrevocable trust. At the same time he asked what ultimate disposition she desired to make of her property in the event of death. In accordance with Miss Kutsche’s instructions, an irrevocable trust indenture was then executed, by which the management and control of her property was turned over to a trust company, which was directed to pay the entire income to her, as trustor, during her lifetime. Upon her death the property was to go to certain beneficiaries designated by her, some of whose shares were also trusteed. Miss Kutsche died five years later.
The question raised is whether the transfer of the property is subject to the Michigan State inheritance tax. If the gift was made in contemplation of the trustor’s death or intended to take effect in possession or enjoyment at or after such death, it is taxable as provided by 1 Comp. Laws, 1929, § 3672. The probate court found the transfer taxable, but its decision was reversed on appeal to the circuit court, where the trial judge held the transfer nontaxable solely for the reason that it was not made in contemplation of death. He did not discuss the question whether the transfer was one intended to take effect in possession or enjoyment at or after the death of the donor. The amount of the tax is not shown by the record.
The test for the determination of whether or not a transfer was made in contemplation of death is: Was the thought of death the impelling motive of the transfer? This is a question of fact and the trial judge’s conclusions are borne out by the testimony. The settlor, though advanced in years, was in good physical condition, and in executing the trust was motivated by entirely different reasons than a desire to make disposition of her property in the event of death. In United States v. Wells, 283 U. S. 102, 115 (51 Sup. Ct. 446), the court said:
“It is recognized that the reference is not to the general expectation of death which all entertain. It must be a particular concern, giving rise to a definite motive. * * * the differentiating factor must be found in the transferor’s motive. Death must be ‘contemplated,’ that is, the motive which induces the transfer must be of the sort which leads to testamentary disposition. * * #
“It is contemplation of death, not necessarily contemplation of imminent death, to which the statute refers. It is conceivable that the idea of death may possess the mind so as to furnish a controlling motive for the disposition of property, although death is not thought to be close at hand. Old age may give premonitions and promptings independent of mortal disease. Yet age in itself cannot be regarded as furnishing a decisive test, for sound health and purposes associated with life, rather than with death, may motivate the transfer. The words ‘in contemplation of death’ mean that the thought of death is the impelling cause of the transfer. * * *
“If it is the thought of death, as a controlling motive prompting the disposition of property, that affords the test, it follows that the statute does not embrace gifts inter vivos which spring from a different motive. * * * ‘ The immediate and moving cause of the transfers was the carrying out of a policy, long followed by decedent in dealing with his children, of making liberal gifts to them during his lifetime. ’ # * # The motive for the transfers brought them within the category of those which, as described by the government, are intended by the donor ‘to accomplish some purpose desirable to him, if he continues to live. ’ ’ ’
See, also, In re Rising’s Estate, 186 Minn. 56 (242 N. W. 459).
We believe, however, that the transfer was taxable as a gift intended to take effect in possession or enjoyment at or after the trustor’s death. It is held by practically all courts that a transfer of property to trustees to pay the income to the transferor during life, with directions that upon his death the corpus shall be paid to designated beneficiaries, falls within the meaning of a transfer intended to take effect at or after death, even though the trust may be irrevocable. See 49 A. L. R. 878, and cases therein cited. The question has never been directly passed upon in Michigan, although in People, ex rel. Attorney General, v. Welch’s Estate, 235 Mich. 555, it was conceded that such a transfer was taxable until the settlor by a later instrument transferred the income to the beneficiaries designated as entitled to the property upon her death.
Counsel for defendant, however, insist that the rule has been changed by the United States supreme court in the case of May v. Heiner, 281 U. S. 238 (50 Sup. Ct. 286, 67 A. L. R. 1244). This case involved the construction of a former Federal statute, section 402(c) of the 1918 revenue act (40 Stat. p. 1097), containing a clause similar to the one in question in the Michigan inheritance tax statute. The United States supreme court held that the transfer, with an income reservation by the settlor for life, was not a transfer in contemplation of death or intended to take effect in possession or enjoyment upon the donor’s death, within the meaning of.the Federal estate tax act. The court stated that since the transfer was not testamentary in character and could not be recalled by the grantor, no interest in the property held under the trust passed from her to the living upon her death; that the title thereto had been definitely fixed by the trust deed; and that the interest therein which decedent possessed immediately prior to her death was obliterated by that event. However, this case merely construed the Federal estate tax act as it stood at that time. The decision is not binding upon the State courts in construing their respective inheritance tax statutes.
In the case of In re Rising’s Estate, supra, decided after May v. Heiner, supra, the Minnesota court held that a transfer similar to the one involved in the instant case was taxable under the State inheritance tax act taxing transfers intended to take effect in possession or enjoyment at or after the death of the grantor. The court said:
‘ ‘ The opposing argument seeks justification in May v. Heiner, 281 U. S. 238 (50 Sup. Ct. 286, 67 A. L. R. 1244). Consideration of that decision must begin with Reinecke v. Northern Trust Co., 278 U. S. 339 (49 Sup. Ct. 123, 66 A. L. R. 397), involving seven trusts. Two were revocable and so taxable. The other ‘five trusts,’ not revocable, were yet held not taxable because there was no transfer by reason of death, within the meaning of the Federal law. Life interests in income were created, but not fop the settlor. There were provisions for accumulation of income but not for the donor. The gifts were instantly complete, inter vivos, because nothing of substance remained to pass from donor to or for the benefit or enjoyment of donees at or after death of the donor.
“The reason why there was no transfer subject to the Federal tax was thus stated: ‘In its plan and scope the tax is one imposed on transfers at death or made in contemplation of death and is measured by the value at death of the interest which is transferred. * * * It is not a gift tax. * * * One may freely give his property to another by absolute gift without subjecting himself or his estate to a tax, but we are asked to say that this statute means that he may not make a gift inter vivos, equally absolute and complete without subjecting it to a tax if the gift takes the form of a life estate in one (other than the donor) with remainder over to another at or after the donor’s death. It would require plain and compelling language to justify so incongruous a result, and we think it is wanting in the present statute.’
“This language was lifted bodily, by quotation, to justify and explain the result in May v. Heiner, supra, notwithstanding the very different sort of gift there considered — different in that there was reserved to the donor a very substantial kind of right and enjoyment not to cease until her death. The gift was in trust to pay income to the donor’s husband for life, then to the donor, if she survived him, with remainder over. Again, simply because there was doubt of construction, to be resolved in favor of the taxpayer, it was held there was no taxable transfer.”
In Blodgett v. Guaranty Trust Co. of New York, 114 Conn. 207 (158 Atl. 245), the court in holding a similar transfer to be taxable, declared:
‘ ‘ The raising of the question we are now considering appears to be due to the construction placed, by the representatives of the several estates involved, upon certain recent decisions of the supreme court of the United States, as evincing a departure in effect from the decisions above referred to and lending encouragement to a renewed attack upon the pro vision under consideration and its applicability to tbe facts of cases such as those now before us.”
The court then distinguished the cases of May v. Heiner, supra, and Reinecke v. Northern Trust Co., 278 U. S. 339 (49 Sup. Ct. 123, 66 A. L. R. 397), as follows:
“It is obvious from the quotation from the opinion in the Reinecke Cases which we have given above, that the decision, upon which the succeeding cases relied, was motivated by the nature of the Federal estate tax, which is upon the transfer of, rather than the succession to, property of the decedent. * * * On the other hand, with a few exceptions, the State inheritance tax statutes levy a duty or excise upon the beneficiary for the privilege or right of succession to property. * * # We have been able to discover no relevant subsequent case which has given these decisions an effect adverse to the tax-ability of such gifts under State succession tax statutes. * * * Therefore, we feel that we are not constrained to place a similar construction upon our own statute and are still at liberty to adhere to the views as to its meaning and scope which usually have been held as to State statutes of similar nature and terms which we indicated in Blodgett v. Union & New Haven Trust Co., 97 Conn. 405 (116 Atl. 908); these lead to the conclusion that the property which was the subject of transfer was within the meaning of the statute, and taxable accordingly.”
This case was subsequently appealed to the United States supreme court, and the decision of the lower court was affirmed, in Guaranty Trust Co. of New York v. Blodgett, 287 U. S. 509 (53 Sup. Ct. 244), the court holding itself bound by the construction placed upon the State statute by the State supreme court “as though the meaning as fixed by the court had been expressed by the statute itself in specific words.”
The question has also been passed upon but recently in a number of other States, and the tax has been upheld. In Worcester County National Bank v. Commissioner of Corporations and Taxation, 275 Mass. 216, 220 (175 N. E. 726), the court said:
“Though upon the creation of the trust an equitable remainder in the trust fund, after the life estate of the decedent in such fund, vested in interest in the beneficiary, she was not entitled to ‘possession or enjoyment’ of the fund, * * * until the death of the decedent. The ‘deed, grant or gift’ was ‘intended to take effect in possession or enjoyment after his death.’ Her present right to the future ‘possession or enjoyment’ of the trust fund, which was ‘vested’ in the sense of being assignable or transmissible by her during the life of the decedent, was not ‘possession or enjoyment,’ within the meaning of the statute. The statute recognizes the familiar distinction between taking effect in possession or enjoyment and vesting in right, title or interest. * * * Apparently the legislature intended to reach for the purpose of taxation the shifting of the enjoyment of property — the ‘economic benefits’ thereof or‘economic interest’therein * * * —from a former owner at his death, even though such shifting of enjoyment followed necessarily from a prior transfer of title inter vivos. * # * ‘The policy of the law is, that the owner of property shall not defeat or evade the tax by any form of conveyance of. transfer, where after death the income, profit or enjoyment inures to the benefit of those who are not exempted.’ ”
Other recent cases to like effect are Sherman v. Tax Commissioners of Ohio, 125 Ohio St. 367 (181 N. E. 539); and In re Ellis’ Estate, 169 Wash. 581 (14 Pac. [2d] 37, 86 A. L. R. 734).
Appellee’s claim that the imposition of an inheritance tax upon transfers of the nature of the one here involved offends'the due process and equal protec tion clauses of the United States Constitution (Am. 14, § 1) is fully answered by Guaranty Trust Co. of New York v. Blodgett, supra, in which the United States supreme court held that, inasmuch as such a tax was imposed upon an event generated by the death of the decedent, it did not conflict with any provision of the Federal Constitution.
The judgment of the lower court is reversed and the case remanded to the trial court to determine the tax and enter judgment. The question being a public one and involving the constitutionality and construction of a statute about which there has been much uncertainty, no costs will be allowed.
Nelson Sharpe, C. J., and Potter, North, Fead, Wiest, Bttshnell, and Edward M. Sharpe, JJ., concurred. | [
-22,
7,
-11,
-75,
-8,
-3,
29,
40,
0,
5,
-22,
-15,
44,
52,
-5,
12,
-20,
34,
-89,
20,
-14,
-2,
-17,
23,
10,
-3,
42,
-61,
75,
0,
29,
-4,
-29,
38,
9,
-34,
-34,
-50,
12,
-13,
-24,
49,
-20,
84,
-37,
48,
20,
-57,
4,
-34,
4,
23,
16,
25,
68,
19,
3,
-14,
20,
32,
26,
-77,
-12,
2,
3,
44,
33,
-2,
-56,
-53,
-43,
-31,
21,
24,
23,
27,
15,
64,
16,
-15,
42,
-62,
-33,
-47,
-64,
-12,
-39,
-27,
42,
-57,
-17,
-7,
0,
0,
-63,
41,
85,
43,
10,
36,
-3,
-21,
-1,
25,
29,
-52,
22,
36,
20,
-27,
-23,
-12,
-10,
60,
-68,
47,
-102,
-8,
-26,
13,
-48,
-29,
23,
-40,
47,
-30,
-13,
-4,
49,
-32,
25,
45,
-34,
-24,
-44,
-7,
-42,
-62,
-58,
-25,
-55,
20,
13,
-67,
21,
42,
-8,
-19,
7,
-58,
-38,
20,
27,
26,
1,
-56,
-67,
-16,
-6,
-23,
20,
29,
5,
-10,
-9,
0,
0,
-2,
-27,
-2,
12,
23,
-3,
21,
8,
11,
37,
-6,
-32,
4,
-14,
33,
41,
27,
-16,
-68,
-45,
14,
0,
-26,
-60,
-8,
11,
40,
-25,
14,
20,
0,
-5,
-13,
-7,
22,
-24,
49,
30,
-16,
-44,
-24,
15,
7,
-20,
11,
0,
33,
-55,
-29,
-31,
-8,
-68,
-8,
72,
5,
45,
-33,
-36,
-29,
4,
-5,
-39,
0,
-8,
4,
-27,
-1,
-19,
55,
0,
20,
-9,
-37,
27,
-3,
-2,
-43,
5,
-28,
38,
-1,
-22,
9,
-46,
-57,
-21,
35,
38,
-2,
-26,
-2,
66,
-82,
-17,
38,
-4,
34,
19,
12,
13,
8,
-14,
-53,
11,
11,
-6,
-13,
19,
-34,
23,
-4,
-1,
21,
23,
7,
-10,
-17,
-52,
32,
-76,
-4,
-41,
11,
39,
33,
62,
4,
32,
53,
-28,
-9,
27,
-28,
37,
65,
58,
62,
31,
32,
-12,
33,
11,
-22,
-6,
-37,
-24,
12,
5,
34,
45,
-68,
68,
31,
1,
21,
-7,
36,
-28,
-13,
-10,
-17,
10,
100,
-74,
37,
-6,
10,
-30,
-45,
-10,
3,
-53,
-28,
4,
8,
23,
-39,
29,
-42,
18,
-15,
5,
-8,
-28,
64,
-3,
23,
-8,
17,
63,
8,
17,
31,
4,
3,
48,
31,
-32,
2,
-25,
-1,
47,
-27,
15,
37,
-43,
16,
21,
50,
-47,
33,
-37,
-36,
-45,
41,
44,
62,
-26,
-11,
-22,
32,
11,
-3,
-7,
27,
-19,
7,
-30,
-19,
21,
-11,
-54,
-27,
-29,
80,
-14,
-45,
-11,
-17,
7,
6,
-21,
33,
2,
-9,
66,
-78,
19,
-15,
34,
-65,
44,
8,
26,
39,
-44,
-22,
-77,
-28,
-60,
64,
-26,
-52,
4,
35,
51,
-24,
-9,
-47,
-1,
0,
-15,
22,
41,
-2,
29,
0,
-6,
37,
-32,
-2,
46,
-33,
36,
-29,
-5,
6,
19,
-13,
75,
-10,
-17,
17,
-1,
-26,
31,
-13,
19,
-18,
-16,
-3,
71,
-3,
-19,
-7,
-32,
-2,
24,
1,
-8,
0,
74,
33,
-9,
-27,
20,
-7,
-23,
27,
29,
-55,
-32,
-22,
18,
-4,
2,
15,
-69,
-52,
-40,
-13,
46,
-11,
-22,
0,
41,
5,
19,
6,
-1,
-45,
-41,
-37,
34,
-24,
10,
69,
36,
41,
41,
-3,
41,
6,
-41,
-38,
-36,
43,
4,
42,
51,
40,
15,
-45,
1,
-57,
28,
-11,
-34,
-8,
28,
-59,
-5,
-14,
-18,
-32,
-7,
16,
-19,
41,
10,
-26,
-39,
-12,
-79,
-67,
-25,
1,
27,
-78,
49,
-57,
-1,
-21,
-31,
66,
-16,
-20,
-29,
-79,
-66,
-8,
-15,
11,
27,
-58,
-2,
-17,
4,
13,
-1,
5,
-27,
-21,
21,
4,
41,
-30,
2,
46,
-68,
34,
4,
-2,
19,
47,
-26,
27,
-19,
-16,
48,
-31,
-12,
-37,
-44,
21,
20,
-36,
14,
-31,
18,
-18,
28,
-13,
13,
-13,
15,
33,
-38,
39,
10,
-26,
14,
40,
-19,
22,
12,
-40,
22,
32,
15,
33,
33,
-24,
60,
-22,
-24,
18,
-35,
-3,
-4,
-18,
23,
-66,
-26,
22,
-11,
4,
0,
-36,
28,
42,
7,
23,
-23,
7,
-25,
4,
-8,
-18,
1,
4,
7,
-5,
15,
14,
-4,
48,
5,
30,
-14,
26,
-15,
-12,
-7,
-22,
-36,
-24,
-6,
19,
-13,
30,
3,
25,
-70,
41,
28,
37,
-16,
8,
-10,
10,
29,
3,
16,
-52,
11,
40,
-4,
29,
22,
61,
45,
-7,
28,
32,
-23,
18,
-62,
-61,
-2,
1,
-65,
-16,
30,
-4,
14,
-73,
-54,
6,
8,
-36,
34,
-48,
-54,
-27,
18,
-28,
24,
15,
42,
-36,
-15,
0,
28,
-21,
-55,
10,
27,
36,
-1,
-2,
50,
-61,
6,
61,
-32,
21,
-60,
15,
-2,
35,
-5,
0,
8,
34,
85,
1,
-28,
-16,
40,
53,
-5,
-54,
-23,
77,
-52,
45,
34,
8,
-24,
6,
-15,
-29,
6,
9,
-41,
40,
-23,
-22,
4,
26,
31,
21,
25,
-29,
-24,
-8,
46,
-18,
10,
-56,
-6,
36,
-55,
30,
34,
5,
-15,
23,
0,
37,
54,
-32,
14,
34,
-15,
35,
35,
25,
11,
-3,
0,
44,
41,
17,
2,
-9,
0,
-48,
-24,
68,
0,
-36,
54,
-1,
-12,
-25,
-25,
45,
21,
-8,
-50,
-13,
-54,
-3,
-50,
-12,
29,
-9,
-27,
37,
43,
-81,
24,
0,
-16,
27,
40,
-9,
79,
-46,
-65,
14,
-20,
-50,
-8,
25,
31,
2,
-49,
22,
4,
48,
-5,
7,
7,
7,
46,
2,
-16,
40,
2,
7,
-61,
-7,
-63,
-9,
-50,
48,
15,
-13,
-55,
17,
-4,
39,
0,
26,
-22,
24,
85,
-40,
10,
-4,
-10,
-5,
-9,
-2,
-25,
-10,
58,
-9,
14,
-35,
-100,
16,
-17,
-8,
33,
5,
-7,
53,
22,
28,
5,
6,
-9,
-28,
9,
-4,
-35,
-14,
8,
26,
-10,
-34,
-34,
-51,
-10,
-9,
17,
12,
-25,
38,
13,
23,
-43,
10,
31,
-34,
-4,
27,
-14,
1,
5,
5,
-41,
49,
53,
52,
73,
-28,
17,
-13,
44,
-2,
28,
11,
-5,
-36,
-2,
-32,
-76,
5,
-20,
-42,
40,
13,
73,
-50,
64,
-26,
12,
22,
-58,
-41,
-19,
-30,
3,
-22,
32,
-24,
-10,
-50,
-7,
-2,
-18,
18,
-3,
21,
3,
35,
-7,
-48,
67,
-2,
-55,
70,
16,
44,
19,
32,
-4,
-14,
-50,
-75,
-30,
23,
14,
-43,
45,
-11,
-47,
-23,
-49,
-19,
1,
6,
-4,
28,
18,
34,
23,
-23,
25,
30,
-6,
27
] |
Btjtzel, J.
On August 16,1943, John Yanderplow, plaintiff herein, as general partner, and Maurice Fredricks and Harry Meier, defendants, as limited partners, formed a limited partnership under the provisions of Act No. 110, Pub. Acts 1931 (Comp. Laws Supp. 1940, § 9908-1 et seq., Stat. Ann. § 20.51 et seq.), for the purpose of engaging in the wholesale beer, wine and beverage business, under the firm name of Smitty’s Beverage Company. The partnership certificate provided the partnership was to exist “as long as the members thereof shall mutually agree;” that the general partner was to have the management and control of the business, and the limited partners were not to take any part in such control except in an advisory capacity. It was agreed that the general partner should receive a salary of $75 per week for services in managing the business; and that the net profits after deduction of this compensation and the other expenses was to be divided equally among the three partners. Each partner contributed $3,000 to the capital of the partnership. It was agreed that upon consent of all the partners, any portion of the profits realized could be retained in the business and such amounts were to be credited to the partners upon the books of the firm as additional contributions to the capital.
The business was extremely profitable and the larger part of the earnings was not withdrawn. The articles of partnership provided as follows:
“Article 8. The contribution of the limited partners shall be returned to them upon dissolution by mutual agreement, or upon dissolution by operation of law, only to the extent and subject to priorities as provided by section 23 of the limited partnership act. * * *
“Article 14. No provision has been made to give limited partners any right to demand or receive any other than cash in return for their respective contributions.”
Dissatisfaction arose and at a meeting on May 3, 1946, it was agreed that as the partners could no longer agree, the partnership should be dissolved as of May 31,1946. The books of the firm were brought up to that date and a financial statement reflecting its condition was prepared by certified public accountants. It showed the equity of each of the defendants to be $16,850.51. On June 20, 1946, plaintiff served a written notice of dissolution dated May 31, 1946, upon the defendants and offered to pay off their interests in the partnership on the basis of the figures contained in the statement. Defendants refused to accept the sums offered by plaintiff. They claimed they were entitled to an additional amount and particularly a large sum because of a very large appreciation in the val-ue of real estate bought and used by the firm. The partnership occupied a building in Muskegon Heights, Michigan, which they purchased on land contract on November 2, 1944, for $14,000. Evidently the property was worth far more, for the judge, who heard testimony as to the present value of the property, found it to be $33,500, on July 21, 1947. Payments on the land contract had been made from the partnership assets and there was still approximately $5,500 due on December 31, 1946. The land contract was signed by all three of the partners. The property was bought and used for the business and became a firm asset.
After May 31, 1946, plaintiff continued to operate the business as sole proprietor and used the partnership assets of the firm. He filed a certificate of dissolution signed by himself alone and also another certificate stating he was doing business under the assumed name formerly used by the partnership. He also, in his tax statement, stated he was the sole proprietor. He excluded defendants from the premises and denied them access to the books and records.
On. July 11, 1946, plaintiff filed a bill of complaint for an accounting and a determination of the respective rights of the plaintiff and defendants so as to wind up the copartnership. An ex parte injunction was issued on his petition restraining defendants from seeking the appointment of a receiver. Plain tiff gave auditors employed by defendants full cooperation and a detailed audit of the books of the firm was made. It showed that the net worth of the partnership as of May 31, 1946, excluding a small item which defendants do not insist upon, was $52,-875.34, each limited partners’ equity amounting to $17,625.11. This did not include any share in the good will or the increment in the value of the real estate of the firm. The auditors also showed that during the period from May 31, 1946, to December 31, 1946, profits of approximately $23,000 were earned while the firm’s assets were being employed by plaintiff.
After a full hearing the court rendered an opinion that plaintiff should be released from any claims by defendant upon payment to each of them of the sum of $17,625.11, plus their share of the profits accruing from May 31, 1946, to July 11, 1946, the date when suit was started, with 5 per cent, per annum upon such profits up to the date of the decree. He denied any right of defendants to share in the increment in value of the real estate. The judge in his opinion stressed the fact that article 14 of the partnership agreement, hereinbefore quoted, stated that no provision had been made to give limited partners any right to demand or receive any other than cash in return for their respective contributions, and he concluded, therefore, that they were not entitled to any share of the increment from the real estate.
Defendants, as appellants, claim that they are entitled to all profits earned up to the final windup and termination of the limited partnership.
The uniform partnership act provides as follows:
“Sec. 6. * * * (2) * * * This act shall apply to limited partnerships except in so far as the statutes relating to such partnerships are inconsistent herewith.” (2 Comp. Laws 1929, § 9846, as amended by Act No. 272, Pub. Acts 1941 [Comp. Laws Supp. 1945, § 9846, Stat. Ann. 1947 Cum. Supp. § 20.6].)
“Sec. 29. The dissolution of a partnership is the change in the relation of the partners caused by any partner ceasing to be associated in the carrying on as distinguished from the winding up of the business.” (2 Comp. Laws 1929, § 9869 [Stat. Ann. § 20.29].)
“Sec. 30. On dissolution the partnership is not terminated, but continues until the winding up of partnership affairs is completed.” (2 Comp. Laws 1929, § 9870 [Stat. Ann. § 20.30].)
“Sec. 38. (1) When dissolution is caused in any way, except in contravention of the partnership agreement, each partner, as against his copartners, * * * unless otherwise agreed, may have the partnership property applied to discharge its liabilities, and the surplus applied to pay in cash the net amount owing to the respective partners.” (2 Comp. Laws 1929, § 9878 [Stat. Ann. § 20.38].)
“Sec. 42. When any partner retires * * * and the business is continued * * * without any settlement of accounts as between him * * * and the person * * * continuing the business, unless otherwise agreed, he * # # as against such persons or partnership may have the value of his interest at the date of dissolution ascertained and shall receive as an ordinary creditor an amount equal to the value of his interest in the dissolved partnership with interest, or, at his option, * * * in lieu of interest,the profits attributable to the use of his right in the property of the dissolved partnership.” (2 Comp. Laws 1929, § 9882 [Stat. Ann. § 20.42].)
“Sec. 43. The right, to an account of his interest shall accrue to any partner, or his legal representative, as against the winding up partners or the surviving partners or the person or partnership continuing the business, at the date of dissolution, in the absence of any agreement to the contrary.” (2 Comp. Laws 1929, § 9883 [Stat. Ann. § 20.43].)
The limited partnership act further provides:
“Sec. 10. (1) A limited partner shall have the same rights as. a general partner to * * *
“(c) Have dissolution and winding up by decree of court.” (Comp. Laws Supp. 1940, § 9908-10, Stat. Ann. § 20.60.)
Plaintiff contends that defendants wrongfully caused the dissolution of the firm in contravention of the partnership agreement and that the quoted portions of section 38(1) and section 42 do not apply for that reason. The trial judge made no such finding. He did find, however, that the partners had agreed upon a dissolution, and such finding is sustained by the record. Plaintiff’s contention is without merit.
Under the quoted sections of the uniform partnership act, defendants are entitled to their full share of the profits until the. winding up of the partnership business by final decree. We believe under all the circumstances of the case and the further fact that the success of the firm was largely due to plaintiff’s efforts he, in equity and good conscience, should be entitled to the good will of the firm as well as to continue the business, provided the amounts found due defendants are paid at once.
A partnership is not terminated by dissolution but continues until the winding up of partnership affairs is completed. Bell v. Porter, 261 Mich. 97. So long as the partnership assets are used to make profits, so long must such profits be accounted for. Major v. Todd, 84 Mich. 85. To like effect, see 80 A. L. R. 12. We hold that defendants are entitled to their share of the profits as well as the return of their capital up to the date of final decree winding up the firm. This can be determined almost immediately after the decree is entered in this Court.
We further find that the real estate was a partnership asset purchased with partnership funds on a contract signed by the copartners. If plaintiff is not willing to pay defendants one third of the value of the equity in the real estate at its appreciated value as determined by the trial judge, the real estate should be sold at once and the profit divided in- accordance with the partnership agreement. Plaintiff at no time offered to pay defendants in cash one-third of the net worth of the firm including their entire equity in the real estate at its appreciated value. In fact, he never made a tender of any kind, although he did make an offer of an amount slightly less than the judge found was due defendants. The purchase of the real estate was solely for the benefit of the firm. It was needed in the firm’s business. It would be speculation on our part to ascertain what plaintiff’s attitude would have been had the real estate depreciated in value. There can be no doubt, however, that the real estate belonged to the partnership and should have been properly inventoried at its real value, not at its cost, in determining what the net worth of the partnership was at the time of the dissolution.
The decree of the lower court is reversed and decree may be entered in accordance with this opinion and providing for the remanding of the case to the trial judge for final determination of the amounts due, and the enforcing of the decree should it become necessary. Defendants will recover costs.
Bushnell, C. J., and Sharpe, Boyles, Reid, North, Dethmers, and Carr, JJ., concurred. | [
32,
29,
-3,
30,
35,
-16,
-9,
22,
-10,
25,
-22,
-25,
1,
31,
64,
37,
41,
-36,
25,
-15,
16,
-27,
-19,
18,
23,
53,
-47,
-24,
47,
-24,
-14,
20,
-51,
-31,
-40,
12,
-10,
27,
-4,
-28,
23,
7,
20,
22,
9,
5,
45,
-78,
38,
-31,
57,
-1,
43,
15,
64,
-13,
-46,
44,
0,
20,
-18,
-6,
8,
-12,
-35,
-6,
0,
38,
-4,
-34,
-10,
-13,
-33,
13,
-5,
-39,
48,
32,
5,
-50,
44,
-33,
18,
-46,
-43,
70,
40,
18,
34,
51,
-34,
-10,
-37,
40,
-24,
-6,
-18,
13,
-20,
7,
64,
-27,
-12,
21,
4,
29,
28,
-5,
-23,
20,
-16,
-4,
58,
10,
-3,
-9,
-13,
-56,
-17,
4,
17,
43,
40,
14,
22,
3,
-40,
21,
7,
7,
40,
-18,
-50,
-33,
22,
-24,
-24,
8,
3,
9,
6,
21,
-40,
-25,
26,
-1,
-41,
30,
11,
-41,
1,
35,
50,
32,
8,
-18,
-8,
-32,
35,
-100,
-53,
-24,
41,
-10,
19,
4,
-9,
0,
-59,
19,
11,
0,
13,
38,
17,
0,
21,
-70,
0,
26,
1,
32,
14,
30,
40,
-31,
16,
21,
7,
-65,
-12,
-40,
-2,
-29,
-6,
9,
5,
24,
34,
28,
-11,
-55,
-30,
0,
20,
-15,
29,
84,
-14,
38,
-36,
-1,
14,
-72,
-58,
-11,
-25,
-34,
-4,
-9,
1,
-76,
-16,
5,
-58,
-59,
40,
3,
-24,
0,
-32,
39,
37,
55,
-19,
-69,
37,
22,
6,
59,
-30,
-26,
-92,
-6,
-5,
-5,
2,
29,
-28,
17,
-39,
-14,
-48,
42,
-33,
-5,
-53,
30,
-11,
33,
-60,
37,
-49,
21,
-25,
-12,
36,
13,
0,
22,
12,
-8,
72,
25,
-12,
-57,
-57,
32,
-9,
17,
10,
14,
16,
-24,
12,
5,
-39,
-8,
-47,
9,
19,
49,
10,
-12,
49,
30,
-40,
36,
27,
22,
-9,
-11,
26,
9,
-40,
-22,
-75,
20,
18,
-34,
-39,
0,
8,
-49,
39,
-19,
5,
41,
21,
-5,
31,
40,
16,
67,
8,
-36,
54,
-1,
30,
1,
-1,
5,
5,
-34,
-53,
-30,
35,
-25,
6,
0,
21,
12,
22,
0,
-5,
16,
13,
5,
-24,
-61,
-11,
-32,
23,
24,
24,
43,
14,
-23,
-4,
-20,
-37,
-50,
-34,
21,
-33,
20,
-18,
24,
36,
-15,
-21,
64,
-47,
1,
-17,
13,
-51,
-16,
-65,
52,
-13,
33,
30,
38,
32,
39,
-24,
-53,
-77,
-41,
-36,
-13,
8,
25,
-18,
16,
-37,
-40,
24,
-14,
-21,
0,
-7,
21,
0,
2,
21,
-14,
-7,
17,
-33,
-23,
18,
-7,
-21,
-16,
22,
-50,
14,
21,
44,
-18,
-21,
0,
-11,
-69,
-11,
66,
-19,
5,
-24,
43,
-13,
0,
46,
2,
-24,
31,
8,
-5,
-28,
-54,
7,
1,
6,
41,
-6,
10,
10,
-6,
-14,
34,
3,
62,
30,
2,
-9,
21,
34,
37,
40,
36,
19,
-74,
-5,
2,
9,
-34,
-6,
46,
-55,
-20,
49,
-27,
-63,
-25,
4,
-17,
-16,
42,
12,
51,
15,
-19,
-54,
-6,
3,
-19,
12,
-56,
58,
48,
-8,
-7,
-32,
-33,
5,
3,
-41,
10,
-5,
-14,
2,
8,
-26,
-1,
-1,
-11,
29,
20,
-62,
-19,
29,
7,
0,
14,
-43,
10,
41,
-17,
0,
7,
-25,
27,
-36,
-15,
50,
2,
47,
-27,
-17,
20,
-4,
40,
-7,
10,
29,
-10,
-13,
-31,
-41,
-48,
-25,
3,
75,
25,
-4,
65,
19,
1,
-12,
-27,
1,
49,
1,
-27,
-12,
26,
22,
-23,
-21,
16,
-32,
-21,
2,
-37,
-28,
9,
-6,
-18,
2,
1,
-20,
23,
11,
7,
4,
-35,
-20,
-7,
0,
-10,
28,
-29,
-50,
35,
35,
-2,
-47,
15,
-6,
26,
-36,
9,
55,
-42,
67,
-2,
-34,
24,
-14,
-9,
25,
-79,
-31,
-58,
-66,
24,
-8,
4,
-5,
-38,
-8,
36,
14,
-8,
31,
-69,
17,
51,
-1,
34,
-8,
-30,
41,
40,
37,
31,
-10,
55,
-1,
-21,
-10,
-8,
10,
75,
10,
62,
-24,
25,
39,
-42,
-1,
62,
-11,
24,
-5,
51,
25,
-6,
-5,
0,
60,
29,
-16,
0,
-18,
-30,
12,
-13,
-6,
24,
8,
47,
5,
-15,
48,
8,
14,
-22,
5,
-38,
7,
43,
5,
13,
-3,
36,
-42,
76,
19,
-23,
-17,
26,
24,
43,
59,
-2,
15,
-95,
-21,
-5,
-56,
-74,
-34,
28,
19,
1,
49,
0,
-1,
-9,
8,
8,
-27,
-1,
-63,
-32,
8,
46,
7,
-25,
-7,
-59,
27,
15,
2,
5,
0,
-36,
-25,
-27,
11,
-8,
-16,
47,
-57,
-48,
-46,
26,
29,
21,
-7,
-56,
39,
35,
-30,
-62,
-43,
-5,
31,
-36,
-31,
30,
-10,
18,
-74,
23,
-10,
43,
-41,
43,
13,
21,
80,
-20,
2,
8,
-79,
17,
-46,
30,
-49,
-1,
32,
18,
9,
-24,
42,
-48,
-45,
40,
-23,
-5,
-19,
-13,
-14,
0,
-44,
23,
52,
-54,
-6,
-36,
19,
-31,
66,
-4,
81,
16,
-33,
-1,
46,
-9,
-19,
30,
-11,
92,
38,
-39,
-42,
-5,
-42,
27,
21,
-19,
32,
23,
34,
-4,
-35,
-14,
17,
7,
-7,
68,
-51,
-41,
-20,
14,
-55,
4,
-6,
2,
-23,
-24,
-48,
36,
-47,
-44,
50,
-51,
-17,
21,
0,
5,
31,
-27,
-56,
-31,
-1,
5,
-38,
36,
30,
-30,
-4,
41,
-21,
-61,
9,
-2,
17,
-19,
18,
25,
-9,
-20,
-61,
25,
-13,
6,
0,
9,
-6,
-43,
-1,
-28,
3,
25,
10,
4,
7,
-22,
-7,
-11,
-15,
-9,
-34,
17,
-28,
25,
-13,
-59,
-24,
-5,
50,
15,
-17,
-6,
2,
-57,
-12,
3,
-3,
-40,
6,
-61,
46,
13,
-55,
-23,
10,
6,
5,
-6,
15,
6,
3,
50,
11,
-18,
10,
-14,
-49,
38,
-12,
66,
33,
0,
-23,
-40,
-52,
-4,
0,
5,
4,
4,
3,
28,
6,
19,
60,
-33,
-23,
0,
11,
-18,
-6,
-36,
10,
-1,
27,
32,
2,
-16,
26,
-5,
12,
0,
-33,
21,
15,
27,
23,
-13,
-20,
14,
-28,
-18,
-25,
24,
-31,
8,
-16,
-40,
-10,
-21,
3,
-18,
64,
31,
13,
36,
-30,
18,
1,
-2,
1,
-26,
29,
36,
1,
49,
37,
-41,
12,
27,
3,
35,
13,
-7,
-34,
4,
3,
17,
25,
-5,
-13,
-46,
12,
2,
-66,
3,
31,
-12,
-2,
46,
9,
38,
-25,
-35,
47,
28,
-6,
6,
-23,
12,
10,
-5,
-43,
16,
-11,
9
] |
North, J.
This case involves the right of defendant and appellant, Ahira H. Rose, Jr., to unemployment compensation. For many years he was in the employ of plaintiff, General Motors Corporation, as a die sinker. Due to a UAW-CIO strike in November, 1945, Rose and some 40 or 50 other die sinkers were temporarily out of employment. Later Rose applied for unemployment compensation for the period during which he was out of work. At hearings before the unemployment compensation commission, the referee, and the appeal board, it was held that Rose was entitled to compensation. On certiorari to the circuit court by plaintiff employer, Rose ivas denied compensation and he has appealed.
Whether, under the facts of this case, defendant-appellant Rose is entitled to unemployment compensation must be determined under the provisions of the Michigan unemployment act. Act No. 1, Pub. Acts 1936 (Ex. Sess.), as amended, to and including Act No. 246, Pub. Acts 1943. Section 29 of the act as amended in 1943 is the part of the act particularly applicable to the instant case. In part it reads as follows:
“Sec. 29. * * * An individual shall be disqualified for benefits: * * *
“(c) For any week with respect to which his total or partial unemployment is due to a stoppage of work existing because of a labor dispute in the establishment in which he is or was last employed: Provided, however, That no individual shall be disqualified under this section if he shall establish that he is not directly involved in such dispute. For the purpose of this section, no individuals shall be deemed to be directly involved in a labor dispute unless it is established: * * *
“(4) That at any time, there being no labor dispute in the particular establishment or department or unit in which he was then employed, he shall have become unemploved because of a stoppage of work which was directly caused in his particular establishment or department or unit by and solely because of a stoppage of work due to a labor dispute which was then in progress in some other establishment or department or unit of the same employing unit by whom he was then employed.”
Decision herein involves consideration of two questions: (1) Did the 40 or 50 die sinkers constitute a particular or distinct unit; and (2) was the stoppage of work in that unit directly and solely caused by a labor dispute which was then in progress in some'other department or unit of the same employing unit by whom Rose was then employed?
Our review of the record discloses that a sufficiently accurate statement of the relevant facts is set forth in the following which we quote from plaintiff’s petition for certiorari:
“Fifth: During the entire period in question and for 23 years prior to November 21, 1945, claimant was employed by the corporation’s Chevrolet gear and axle division and was a member of and was represented bv a duly established and recognized union known as the International Die Sinkers Conference. Claimant is a ‘die sinker’ by craft and worked in what is known as the forge plant No. 1, die room. This is a separate building, and it is utilized for the making of new dies. Rouah die blocks are delivered to this building and planed by employees represented by the UAW-CIO. After delivery and this preparatory operation, the ‘die blocks’ are sent to the ‘impression section’ of the die room where claimant and 40 to 50 other die sinkers (who were also members of the International Die Sinkers Conference) lay out, cut, and sink the die impressions in the blocks. After the die impressions are completed, the die blocks are shaped (by employees represented by the UAW-CIO) and they are then ready for actual use in the forge plant.
“Claimant and the other die sinkers have their own particular section of the building, their own particular machines, and carry on their operations entirely separate and distinct from the other employees in the building. They are the only ones who make or work on the die impressions. . The employees represented by the UAW-CIO merely perform certain preparatory and finishing operations on the block-— not on the die impression. Furthermore, the die sinkers are the only ones who work on the block while it is in the ‘impression section,’ and the making of one impression may require a week or more. They work as a separate and distinct unit, and their stoppage of work was caused by separate and distinct functions (performed by UAW-CIO employees) such as furnishing power, delivery of new blocks, and removal of the finished product, and within a few days their work would have been without purpose as the employer had no use for their product except in the forge plant which was closed by striking UAW-CIO employees. * * *
“There was also complete agreement that claimant’s union, the International Die Sinkers Conference, was a separate and distinct labor or craft organization; that the die sinkers were recognized as an appropriate unit for collective bargaining; that they have been so recognized since 1938; and that they were in no way connected with the UAW-CIO.
“It further appeared from the testimony that they are paid by a bonus system and not on an hourly rate like the UAW-CIO and that their rate of pay, hours of work, and other conditions of employment have and still vary in several respects from that accorded to the UAW-CIO employees.”
From the proof of the foregoing and other facts appearing in the record we conclude that both in respect to their organization .and their operations as'employees, the die sinkers constituted a separate and distinct unit. Further, that there was no labor dispute within that unit, and that stoppage of work in the die sinkers’ unit was solely because of a stoppage of work due to a labor dispute in another department or unit of the same employer.
Our construction of section 29(c), paragraph (4), is not in accord with that of either the employer, or the employee and the commission. Paragraph (4), under subdivision (c), of section 29, was added by the 1943 amendment to the preceding paragraphs (1), (2) and (3) of subdivision (c) . It is too obvious for argument that in amending the statute there was carelessness in the wording and structural arrangement of the context which has led to confusion and uncertainty. But we are convinced from the context and obvious purpose of section 29 that the intent of the legislature was to provide that an employee, who because of a labor dispute has been severed from his employment, should not be deemed to be directly involved in the labor dispute which brought about his unemployment unless it was established that at the time there was in his department or unit a labor dispute, provided the stoppage of work was directly caused in the employee’s department or unit by and solely because of a stoppage of work due to a labor dispute which was then in progress in some other establishment or department or unit of the same employing- unit by whom the employee seeking compensation was employed. This intended meaning of the amendment would have been clear had the word “if” been substituted for the word “unless” in a prefatory sentence. It would then have read: But unless they are directly involved under the preceding paragraphs (1), (2) or (3) (which is not claimed on this appeal), “no individuals shall be deemed to be directly involved in a labor dispute if (not unless) it is established: * * * (4) That at any time, there being no labor dispute in the particular establishment or department or unit in which he was then employed, he shall have become unemployed because of a stoppage of work,” in the manner provided in the remaining portion of paragraph (4) above quoted.
Our conclusion is that paragraph (4), subdivision (c), of section 29, was clearly intended by the legislature to be, and should be construed to be, an additional limitation of what otherwise might be a disqualification of an employee seeking unemployment compensation. Each of other constructions urged or suggested lead to an absurd result. . “Unless necessary, statutes should not be so construed as to result in absurdity.” People, ex rel. Simmons, v. Township of Munising, 213 Mich. 629.
Under the construction of the statutory provision hereinbefore indicated, appellant Rose was and is entitled to unemployment compensation as held by the commission. The judgment of the circuit court is reversed and the case remanded to the circuit court for entry of judgment affirming the holding of the unemployment compensation commission and a remand of the case thereto. Appellant Rose will have costs of both courts.
Bushnell, C. J., and Sharpe, Boyles, Reid, Dethmers, and Carr, JJ., concurred.
Butzel, J., did not sit.
Comp. Laws Supp. 1945, §.8485-59, Slat. Aim. 194Ü Cum. Supp. 8 17.531. — Reuorteb.
Paragraphs (1), (2) and (3) read as follows:
“(1) That, at the time or in the course of a labor dispute in the establishment in which he was then employed, he shall in concert with 1 or more other employees have voluntarily stopped working other than at the direction of his employer, or
“(2) That he is participating in or financing or directly interested in the labor dispute which caused the stoppage of work: Provided, however, That the payment of regular union dues shall not be construed as financing a labor dispute within the meaning of this subsection, or
“(3) Thar at any time, there being no labor dispute in the establishment or department in which he was employed he shall have voluntarily stopped working,' other than at the direction of his employer,' in sympathy with employees in some other establishment or department in which' labor dispute was then in progress.” | [
-7,
24,
-36,
-9,
21,
-35,
66,
-13,
15,
20,
-28,
8,
14,
24,
40,
-16,
50,
0,
-22,
1,
-27,
-53,
76,
4,
-12,
-10,
-3,
-21,
-18,
31,
-71,
-38,
-36,
4,
-20,
4,
-20,
-18,
-8,
8,
-43,
0,
0,
1,
12,
1,
29,
30,
32,
-34,
-33,
7,
-40,
5,
80,
-1,
26,
14,
-8,
39,
-16,
34,
71,
0,
-15,
31,
-42,
0,
8,
14,
-63,
9,
14,
-17,
-40,
-57,
1,
37,
19,
-23,
8,
-9,
14,
-20,
-28,
37,
14,
35,
-12,
-25,
-15,
15,
-23,
46,
-55,
8,
-14,
20,
0,
-1,
-26,
31,
-40,
-6,
-24,
-14,
0,
-22,
14,
58,
-15,
-17,
37,
39,
-25,
-2,
29,
-7,
51,
22,
49,
1,
-13,
31,
-9,
-7,
-32,
5,
-52,
25,
-7,
-1,
15,
28,
11,
15,
40,
-7,
42,
35,
-2,
32,
-2,
-34,
-1,
37,
-16,
29,
15,
-16,
-18,
27,
1,
1,
-34,
0,
57,
-29,
62,
11,
-4,
-24,
20,
2,
-35,
-48,
13,
25,
-20,
-10,
-11,
16,
28,
-21,
42,
9,
12,
11,
-48,
7,
-14,
14,
-57,
8,
3,
-27,
52,
-2,
14,
2,
14,
-33,
15,
36,
12,
51,
41,
4,
-3,
1,
27,
-46,
16,
-5,
-12,
56,
-19,
2,
-24,
-2,
21,
-18,
23,
-32,
-61,
51,
23,
11,
55,
-23,
1,
-17,
-41,
19,
-43,
-46,
-25,
-44,
12,
-4,
39,
10,
23,
34,
-27,
-37,
0,
-48,
40,
48,
0,
-6,
3,
41,
-53,
5,
-48,
-18,
59,
53,
32,
25,
8,
57,
-72,
-50,
7,
-14,
0,
8,
-53,
70,
38,
2,
-18,
22,
-38,
81,
-46,
-26,
-22,
-25,
36,
-13,
-32,
-45,
3,
17,
66,
-13,
-51,
10,
-62,
-37,
-52,
-1,
-12,
-69,
-51,
36,
52,
0,
-8,
-2,
3,
-1,
15,
-3,
3,
58,
-48,
-11,
-20,
-71,
0,
-13,
-41,
-36,
54,
9,
-14,
-57,
-1,
-23,
88,
-16,
-20,
-12,
42,
-27,
2,
34,
-32,
38,
-5,
2,
-13,
17,
4,
-52,
-7,
19,
-25,
17,
-6,
-34,
2,
61,
41,
-21,
-1,
6,
27,
-13,
-2,
-15,
73,
-4,
36,
-20,
28,
-40,
-3,
-33,
31,
61,
64,
-41,
-54,
0,
-24,
-21,
-22,
23,
-40,
-26,
-39,
-21,
0,
22,
6,
1,
-31,
22,
-28,
-23,
-18,
-17,
-31,
39,
44,
-7,
21,
13,
-38,
37,
41,
-89,
13,
6,
-49,
-41,
-33,
-8,
-26,
35,
28,
-39,
-22,
53,
-1,
25,
-38,
0,
19,
-45,
39,
-59,
-65,
0,
-18,
-12,
12,
20,
12,
-20,
30,
-20,
4,
-26,
63,
36,
-14,
-21,
18,
-43,
49,
55,
-4,
50,
14,
-2,
2,
-46,
-59,
-14,
-6,
-36,
-43,
-27,
-49,
1,
20,
20,
4,
26,
-46,
-3,
-4,
-32,
-6,
41,
28,
24,
6,
-19,
-14,
68,
11,
11,
-94,
-35,
41,
30,
-5,
-30,
-18,
21,
-5,
-22,
-73,
8,
2,
56,
18,
-24,
28,
-27,
66,
-17,
14,
30,
25,
-44,
-59,
-16,
-17,
7,
-38,
44,
22,
-57,
-7,
-20,
-8,
37,
-11,
-22,
-15,
-17,
-27,
1,
18,
-36,
-12,
-13,
-25,
-64,
-5,
-22,
-52,
-26,
15,
83,
8,
-7,
-31,
23,
-17,
-5,
-37,
21,
0,
32,
-36,
9,
-45,
-39,
8,
-22,
51,
26,
53,
-6,
9,
-9,
-11,
40,
-50,
-32,
1,
9,
-25,
17,
-36,
-24,
1,
13,
15,
51,
15,
-28,
-7,
-43,
-1,
4,
-8,
-18,
40,
10,
-91,
58,
14,
57,
40,
-21,
-22,
22,
76,
3,
-12,
32,
50,
20,
25,
-9,
38,
-11,
-6,
-20,
10,
-16,
49,
-22,
-75,
-12,
18,
12,
41,
0,
-4,
-46,
-15,
-4,
25,
1,
-11,
34,
-20,
6,
40,
-74,
-60,
16,
-26,
-17,
-49,
20,
52,
-25,
-17,
14,
-17,
-32,
-10,
-48,
4,
-8,
59,
26,
52,
48,
-35,
-33,
-34,
19,
17,
-10,
9,
-41,
-30,
14,
6,
-15,
-3,
-29,
57,
37,
-35,
12,
24,
11,
90,
-17,
-35,
-31,
19,
12,
-28,
-5,
3,
42,
-28,
-1,
-20,
15,
13,
-7,
-48,
-38,
7,
-1,
5,
-4,
12,
5,
-10,
-32,
9,
-18,
39,
13,
30,
5,
21,
18,
-12,
6,
7,
40,
-48,
-17,
-32,
31,
3,
10,
11,
-12,
9,
-33,
13,
31,
9,
-19,
-30,
-3,
10,
-40,
1,
-24,
-18,
66,
-8,
-20,
9,
31,
2,
1,
16,
37,
14,
-23,
-3,
-3,
19,
44,
-9,
-30,
-49,
-19,
-49,
-34,
-11,
-23,
-18,
74,
41,
-34,
-5,
-12,
20,
0,
-20,
-8,
-20,
-26,
-7,
-42,
-52,
-3,
59,
8,
11,
28,
-26,
-10,
16,
-30,
0,
-28,
-70,
-1,
-22,
42,
-31,
-22,
-5,
-19,
-30,
-24,
-46,
-17,
53,
13,
-6,
33,
-43,
6,
35,
-13,
-27,
23,
5,
-28,
28,
25,
-17,
18,
-45,
10,
12,
-11,
14,
50,
-43,
-5,
-69,
-1,
73,
16,
-12,
-56,
-34,
-46,
0,
14,
0,
-34,
-15,
-2,
-20,
-19,
-14,
23,
47,
-53,
7,
-7,
44,
-32,
19,
5,
-4,
18,
31,
24,
-30,
57,
-1,
-32,
3,
25,
-18,
-45,
25,
-7,
20,
-22,
38,
14,
23,
-13,
27,
64,
0,
44,
25,
-16,
27,
-39,
9,
-5,
-12,
1,
14,
7,
23,
24,
50,
-29,
-15,
-45,
-30,
37,
3,
-7,
-1,
-59,
-21,
-22,
47,
-56,
-64,
10,
55,
40,
-80,
3,
41,
-2,
44,
-31,
21,
0,
-64,
-11,
-19,
14,
17,
-5,
31,
-46,
95,
11,
7,
17,
49,
-12,
-39,
5,
5,
74,
-48,
-38,
13,
-2,
17,
-5,
20,
-42,
18,
37,
35,
11,
-24,
4,
-36,
-16,
-58,
14,
0,
-12,
-10,
0,
7,
30,
-18,
32,
12,
6,
-39,
-30,
-8,
-25,
47,
-8,
9,
32,
-17,
34,
-31,
-10,
-10,
-7,
25,
24,
-4,
-11,
-23,
7,
-9,
-15,
-50,
1,
-32,
-34,
42,
-43,
-18,
10,
23,
30,
-23,
33,
39,
-35,
-28,
11,
-6,
-12,
-14,
-2,
34,
35,
57,
-21,
32,
-27,
-63,
-19,
12,
2,
1,
1,
3,
-23,
27,
31,
20,
-32,
-15,
13,
-31,
20,
40,
-58,
40,
-18,
-28,
32,
6,
33,
41,
62,
27,
5,
23,
-4,
54,
10,
35,
36,
19,
-3,
60,
25,
10,
7,
26,
55,
-4,
-19,
-55,
30,
8,
77,
-51,
-22,
17,
-24,
19,
11,
-8,
-17
] |
Smith, J.
Upon leave granted we review the denial of the circuit court for the county of Lenawee of defendant’s delayed motion for a new trial. Appellant asserts that he was denied his constitutional safeguards in a criminal prosecution. He states that, without counsel, and after intimidation and promises of leniency, he pleaded guilty to a charge of robbery unarmed, not realizing the nature of the charge. The trial court, he urges, “was concerned only with the assumed guilt of the accused,” and not “with the requirements of due process of law.” In particular it is asserted that the trial court ignored the requirements of CL 1948, § 768.35 (Stat Ann §28.1058), and of Court Rule No 35A (1945) requiring in cases of felony as follows:
“See. 1. Arraignment. If the accused is not represented by counsel upon arraignment, before he is required to plead the court shall advise the accused that he is entitled to a trial by jury and to have counsel, and that in case he is financially unable to provide counsel the court will, if accused so requests, appoint counsel for him. If the accused states he will procure counsel or requests that counsel be appointed, a reasonable time thereafter shall be allowed for counsel to consult with the accused before his plea shall be taken.
“Sec. 2. Imposing sentence. If the accused pleads guilty, after such plea and before sentence the court shall inform the accused of the nature of the accusation and the consequences of his plea; and regardless of whether he is represented by counsel, the court shall examine the accused, not necessarily under oath, and as a condition of accepting the plea of guilty and imposing sentence shall ascertain that the plea was freely, understandingly and voluntarily made, without undue influence, compulsion, or duress, and without promise of leniency. Unless the court determines that the plea of guilty was so made, it shall not be accepted.”
The record before us discloses that appellant was first brought before the court for arraignment upon February 27, 1956, at which time the following occurred:
“Mr. Bets [Prosecuting Attorney] : I am going to read this information to you. This is what you stand charged with here in court today, Mr. Bumpus.
(Thereupon, Mr. Betz proceeded to read aloud to the respondent the information filed in this cause.)
“The Court: How old are you, Mr. Bumpus?
“Respondent Bumpus: 21.
“The Court:. Have you ever been before any circuit court on a felony warrant before?
“Respondent Bumpus: No, sir.
“The Court: Do you understand under our statute you don’t have to say a word if you don’t want to?
“Respondent Bumpus: Yes, sir.
“The Court: Do you understand you have the right to have this matter tried by a jury if you want a jury trial?
“Respondent Bumpus: Yes, sir.
“The Court: You understand you have the right to have an attorney to represent you if you want counsel?
“Respondent Bumpus: Yes, sir.
“The Court: Do you understand if you don’t have-money that you should request the court for counsel now and if yon don’t have money to pay for one it is the court’s duty to appoint one for you?
“jRespondent Bumpus: Yes, sir.
“The Court: You understand this charge?
“Respondent Bumpus: Yes.
“The Court: How do you plead to it?
“Respondent Bumpus: Stand mute.
“The Court: All right, the court will enter a plea of not guilty. You should get an attorney and be prepared for trial sometime the last part of March.”
Appellant was returned to the bar of the court on March 5, 1956, at which time the record discloses the following colloquy between court and appellant:
“The Court: This case is also on the calendar. I think we read the information to you, haven’t we, Mr. Bumpus ?
“Respondent Bumpus: Yes, sir.
“The Court: Do you want to have that information read to you again?
“RespondentBumpus: No, sir.
“The Court: As I understand, before you stood mute?
“Respondent Bumpus: Yes, sir.
“The Court: I think we explained to you your rights to an attorney and jury trial.?
“Respondent Bumpus: Yes, sir.
“The Court: You understand this charge ?
“Respondent Bumpus: Yes, sir.
“The Court: How do you plead to it ?
“Respondent Bumpus: Guilty.
“The Court: What did you do, Charles?
“Respondent Bumpus: You mean what did I?
“The Court: What did you do?
“Respondent Bumpus: Well, I helped plan the thing. I mean, before it happened, and I met Larry after it was over and went home with him.
“The Court: I don’t know a thing about this. What happened? I mean, you’re supposed to have stolen or taken some money from Bruce Osburn, not being armed, it says. Just what occurred?”
The details of the crime, as then and later ascertained by the court, were as follows:
“Before this man was sentenced I talked to him at length in chambers on the day of sentence. At that time I found out more of the details of the offense as Mr. Bumpus related them to me.
“Actually they planned to ‘roll’ this man Osburn. Mr. Bumpus said he didn’t want to do the job or go in the car along with him because Mr. Osburn knew him too well and he figured he wouldn’t be able to get away with it. Mr. Hatt didn’t know him. Mr. Hatt could take him out on a certain back road and do it and get away with it.
“Mr. Bumpus further explained to us after they met, a part of that money received — I don’t remember the exact number of dollars they claimed they got — but part of the money received was used by the 2 of them in buying food there. They had a meal at the tavern or the next one.
“Then he claimed all he got out of the thing other than the food was this $3. I do further remember Mr. Hatt claimed very emphatically that Mr. Bum-pus got a good deal more than that out of it.”
It thus appears affirmatively that appellant was advised of his right to counsel, at public expense, and of his right to trial by jury. He stated at 2 different hearings that he understood the nature of the charge made against him and we think it pertinent to observe, with respect to appellant’s understandings, that, although only 21 years of age, he was no' stranger to the criminal law and its enforcement. He had been in jail, testified the former, sheriff, “according to our records, about 12 to 13 times,” for various misdemeanors. He had, in fact, “been trusty at different times around there.”
Both our statutes and our court rules, quoted above, require that upon a plea of guilty to an information the judge shall satisfy himself that the plea was made freely, with knowledge of its consequences, and without undue influence or promise of leniency. The form and manner of this examination by the judge has not been prescribed but is left to the discretion of the judge, to be exercised by him in the manner best suited to the parties and the offense. The topic is discussed with clarity in People v. Coates, 337 Mich 56. In the case before us it is clear that the trial judge made such investigation, particularly with reference to the accuracy of the charge made, and was satisfied, as required. As a matter of fact the trial court displayed a personal understanding of the appellant’s problems and a solicitude for his welfare possible of achievement, normally, only in relatively few cases. Thus we find the following in the record at the time of the ■sentencing of appellant:
“The Court: As I told you back in chambers, Charles, neither Mr. Russell [county probation officer] nor myself get any pleasure out of sentencing .anyone to prison here in the State of Michigan.
“We have discussed your case 2 or 3 times including again this morning. Mr. Russell has got a very thorough report on your background and your past history. It indicates from your past history that you drink too much, Charles.
“Even after this particular arrest and the trouble you have been in here, you have been out with some home-brew.
“For the past 4 or 5 years you haven’t been out ■of trouble for a very long period of time at any time. You haven’t even attempted to obey the orders of the court relative to supporting your child. * * *
“After you have gone through quarantine, you will have an opportunity to write. You should write your mother frequently. I would like to have you write me, let me know how you are getting along.
“There is the possibility you will have the opportunity to be transferred outside the walls to go into camp, and if you behave yourself, this court will certainly make that recommendation to the prison officials, if you behave yourself you will have the opportunity to be released in about 9 months period of time.”
The subsequent developments in the case are stated in the court’s opinion in denying the delayed motion for new trial:
“With the court’s recommendation he was transferred to a prison camp and he did very well and that he never during that period of time seemed to feel he was being unjustly punished.
“But he was released on parole, and he was doing very well on parole and had a good attitude towards the whole thing and didn’t' seem to be feeling as though he had been unjustly charged at all.
. “However, he went back into his own ways, his old ways while on parole and returned because of violation of parole after committing another crime.
“And only since that time has he decided that he has been unjustly charged and unjustly accused and unjustly sentenced.”
The appellant quotes to us unimpeachable statements of the law, such as that an accused has the right to counsel, and that a plea of guilty must be made knowingly and voluntarily. These principles, it is true, control us. But the appellant has failed utterly in relating the facts of his case to any violation of the principles. The record is devoid of any credible evidence of intimidation or promises. The court was solicitous at all times of defendant’s rights and personally satisfied himself of the accuracy of the charge made. We do not lightly disregard the statement in the opinion of the sentencing judge that he conferred with defendant and assured himself that the defendant’s plea was know ingly and freely made, and we find nothing in the record to impeach such statement. Moreover, “Where it affirmatively appears that the judge made inquiry to satisfy himself that the plea of guilty entered expressed the real desire of the defendant, there can be no assumption that the defendant acted in ignorance or under compulsion.” 8 MLP, Criminal Law, § 125, p 155.
We find no error. Affirmed.
Dethmers, C. J., and Carr, Kelly, Black, Edwards, Yoelker, and Kavanagh, JJ., concurred.
Added June, 1947. 318 Mieh xxxix. — Reporter. | [
40,
18,
0,
5,
-63,
0,
-12,
-18,
-43,
54,
6,
-35,
-9,
-42,
23,
5,
-12,
10,
33,
-11,
-9,
-24,
18,
0,
-8,
-12,
18,
35,
21,
21,
10,
52,
-31,
-1,
-22,
-11,
26,
-45,
-8,
29,
-15,
20,
14,
25,
-48,
-24,
-19,
6,
48,
-35,
19,
11,
-13,
17,
-13,
10,
6,
-6,
18,
28,
2,
-6,
-66,
2,
-52,
-50,
5,
40,
-13,
-41,
0,
32,
-10,
33,
27,
23,
-36,
0,
22,
29,
37,
8,
32,
-22,
-6,
-8,
4,
-21,
4,
-5,
20,
63,
-58,
-49,
17,
-25,
19,
46,
33,
-43,
-46,
16,
22,
-31,
2,
-7,
-64,
-37,
-6,
51,
21,
-6,
-10,
-33,
-59,
-74,
-59,
-45,
-18,
-20,
37,
-12,
59,
46,
33,
20,
-12,
-46,
33,
-42,
-2,
30,
49,
-16,
15,
-12,
20,
8,
15,
35,
-15,
-15,
53,
-18,
52,
23,
-27,
28,
-23,
52,
-27,
38,
-8,
15,
-53,
24,
-36,
-53,
-5,
24,
23,
21,
-60,
-38,
-9,
-26,
-47,
4,
0,
-50,
-22,
-28,
22,
31,
39,
7,
11,
13,
18,
9,
-15,
29,
-3,
-14,
5,
21,
-7,
22,
1,
-7,
-24,
7,
0,
-39,
60,
48,
-26,
25,
23,
2,
10,
-39,
-6,
20,
-4,
-15,
38,
5,
10,
-25,
-43,
-21,
-15,
-19,
12,
9,
-18,
-4,
19,
42,
-41,
0,
5,
17,
-16,
23,
28,
13,
-8,
-2,
23,
-5,
-32,
47,
-13,
6,
31,
-31,
54,
17,
-17,
-44,
18,
-21,
71,
-20,
-18,
17,
-42,
-15,
7,
42,
29,
-2,
-36,
-9,
34,
-4,
-4,
-16,
-42,
40,
6,
-12,
-40,
37,
1,
24,
-44,
-25,
-14,
-13,
25,
19,
14,
6,
-15,
52,
10,
-19,
-49,
3,
0,
58,
-6,
-1,
-30,
42,
25,
14,
22,
-11,
-8,
39,
14,
30,
-9,
11,
-14,
21,
45,
41,
-29,
-30,
17,
-29,
-4,
8,
-21,
-22,
1,
31,
-35,
0,
24,
0,
14,
-62,
35,
-8,
-19,
4,
-10,
-9,
62,
42,
7,
24,
-8,
0,
-8,
8,
-8,
-44,
-36,
51,
9,
-13,
0,
23,
8,
-43,
-23,
-13,
13,
3,
37,
14,
-59,
18,
-8,
15,
-35,
-5,
8,
10,
-50,
-23,
18,
-65,
46,
-12,
-27,
-23,
3,
-24,
-6,
-14,
30,
41,
29,
-36,
-6,
-52,
-17,
10,
6,
-38,
-48,
-12,
-55,
-34,
25,
31,
-2,
1,
-3,
-9,
-19,
25,
-11,
-20,
10,
-42,
-12,
19,
26,
25,
22,
-10,
-25,
-42,
3,
41,
-2,
-33,
-39,
15,
17,
13,
-11,
54,
15,
62,
-38,
-34,
3,
16,
24,
-12,
-6,
-58,
36,
-12,
25,
13,
-38,
22,
18,
-13,
44,
-32,
17,
-44,
49,
64,
-45,
-9,
7,
33,
3,
0,
-13,
25,
19,
-44,
-61,
-9,
-5,
-21,
-10,
6,
0,
-41,
-32,
28,
1,
23,
17,
-6,
-8,
-24,
-40,
22,
70,
-32,
-59,
5,
-12,
22,
52,
2,
-22,
26,
-18,
18,
14,
23,
60,
11,
-6,
7,
-11,
-57,
-27,
-22,
-11,
-21,
34,
36,
6,
39,
-16,
34,
-32,
17,
-34,
11,
-32,
80,
-25,
-11,
-5,
-41,
13,
40,
4,
19,
26,
-30,
14,
-1,
0,
6,
28,
-8,
21,
9,
-18,
-34,
-6,
-21,
25,
-10,
-17,
46,
-34,
-20,
-11,
14,
48,
1,
-21,
9,
12,
15,
-28,
-20,
-23,
-15,
20,
26,
-2,
7,
47,
-12,
13,
-31,
17,
12,
9,
-11,
-5,
25,
-3,
-15,
-11,
-6,
45,
-51,
62,
26,
59,
27,
-35,
-8,
-30,
0,
18,
-13,
6,
9,
-29,
19,
-5,
12,
-2,
44,
28,
-28,
40,
7,
2,
-57,
-5,
-25,
-21,
-11,
-32,
-50,
-38,
23,
-13,
-19,
8,
-7,
11,
-8,
20,
44,
26,
14,
-81,
15,
67,
-2,
38,
-11,
29,
11,
31,
-71,
-13,
11,
-27,
-3,
-31,
8,
-18,
36,
-20,
-9,
-3,
-9,
-19,
-52,
-38,
-3,
-65,
-29,
2,
38,
-24,
-10,
-20,
21,
14,
34,
-3,
10,
-1,
29,
9,
-6,
31,
-1,
-36,
23,
6,
-18,
5,
17,
-4,
-37,
20,
19,
-21,
29,
52,
-23,
6,
-8,
-66,
-3,
-5,
48,
14,
-35,
50,
-14,
-2,
9,
14,
49,
-11,
-29,
-4,
-30,
-3,
6,
-28,
-8,
24,
-45,
0,
-3,
20,
-19,
3,
26,
-10,
40,
54,
4,
-5,
-7,
29,
80,
23,
8,
11,
-4,
15,
-48,
-1,
-4,
-4,
-24,
3,
-35,
-62,
34,
-9,
-5,
0,
3,
-111,
-1,
22,
37,
-26,
-8,
28,
-2,
45,
-21,
39,
-56,
27,
-53,
52,
25,
-9,
-18,
23,
-6,
0,
26,
-17,
38,
33,
1,
-53,
0,
-45,
26,
14,
-27,
0,
-6,
59,
-7,
40,
35,
-34,
20,
38,
-54,
-45,
29,
-23,
63,
-18,
-2,
-48,
8,
-8,
11,
4,
39,
-24,
-22,
11,
-38,
-7,
5,
-20,
-21,
52,
11,
41,
25,
-12,
-23,
30,
2,
17,
22,
-40,
-24,
18,
-50,
-62,
56,
24,
14,
55,
-21,
17,
14,
-23,
12,
12,
4,
-2,
-8,
3,
70,
40,
2,
31,
41,
-44,
-18,
-29,
-14,
20,
-4,
68,
-57,
28,
17,
4,
-29,
4,
7,
44,
-39,
-34,
-15,
-12,
-26,
-16,
23,
-11,
11,
10,
-17,
-6,
30,
50,
-36,
5,
7,
0,
26,
-17,
-6,
7,
21,
40,
10,
-63,
-37,
-38,
2,
26,
-2,
24,
-60,
-9,
-13,
-21,
-58,
1,
-17,
-17,
-48,
12,
-37,
2,
-33,
46,
13,
-16,
29,
-3,
10,
-1,
0,
-27,
3,
67,
-1,
3,
-23,
1,
-82,
-63,
0,
21,
46,
-25,
20,
-27,
-1,
-11,
-24,
-59,
-15,
40,
8,
20,
-2,
54,
-9,
66,
-4,
-30,
47,
-24,
37,
-23,
-12,
-7,
-37,
-13,
-10,
37,
-39,
-40,
27,
-7,
-1,
-4,
-15,
23,
24,
-6,
18,
4,
-2,
3,
-45,
18,
-15,
16,
-24,
-25,
-12,
-31,
23,
-56,
-43,
-42,
40,
-17,
-35,
3,
-5,
-87,
-50,
28,
4,
18,
-8,
-26,
-2,
0,
-17,
-29,
-7,
-16,
5,
-2,
-1,
-25,
-23,
-21,
2,
-12,
-28,
5,
-14,
42,
14,
22,
-19,
5,
-65,
-7,
-13,
12,
-6,
0,
35,
29,
19,
-66,
-51,
24,
-8,
5,
23,
-12,
24,
-7,
-39,
2,
34,
12,
27,
11,
31,
-1,
-20,
-20,
53,
-46,
43,
-7,
19,
31,
-9,
-13,
17,
-34,
-21,
-19,
10,
-1,
20,
-46,
50
] |
Carr, J.
Plaintiff herein is organized as a non^profit corporation, apparently for the benefit of its members, who pay dues and are entitled, as it is claimed, to sickness and death benefits. During the period in question in this case plaintiff was engaged .in certain business activities from which it received financial returns. Its affairs were handled by duly ■elected officers, and during the 2-year period beginning September 1,1951, the treasurer was Walter ■J. Jachim.
On the 15th of September, 1951, the defendant Aetna Casualty & Surety Company executed its obligation to plaintiff to pay pecuniary loss that might 'be sustained by the latter “by any act or acts of .Larceny, Embezzlement, Theet, Forgery, Misappropriation, Wrongeul Abstraction, Willeul Misapplication, or any other act of Fraud or Dishonesty ■committed directly or through connivance with •others by any officers or employees of the obligee •occupying the positions now named in or hereafter •added to the schedule attached hereto and which is hereby made a part of this bond.” It is conceded that the liability of the surety company was limited to the sum of $2,000. On June 25, 1954, plaintiff instituted action on the bond, claiming that the' treasurer, Walter Jachim, “did not faithfully discharge his duties as such treasurer, but on divers dates between the said first day of September, 1952, and August 31, 1953, appropriated and converted to-his own use a sum in the excess of $2,500’ of the moneys of the plaintiff coming into his hands as such treasurer.”
On petition the treasurer was permitted to intervene as a party defendant, with leave to the plaintiff to amend its declaration to include additional claims against the intervenor. Pursuant to the order the pleading was amended by increasing the allegation as to the amount of money converted and appropriated by the treasurer to the sum of $3,500. Defendant Jachim filed answer denying that he appropriated any funds of the plaintiff. The surety company likewise answered, leaving plaintiff to its proofs with reference to the alleged conversion and misappropriation, and asserting, as a defense to liability on its part, that plaintiff had failed to comply with a condition of the bond requiring a careful inspection and audit of its books and accounts. In view of the-verdict of the jury, no question as to such defense’is involved in this appeal.
At the conclusion of plaintiff’s proofs on the trial the defendant surety company moved for a directed verdict in its favor. The motion was taken under advisement and the cause submitted to the jury.. Verdict was returned in favor of both defendants.. Plaintiff moved for a new trial, claiming that the said verdict was contrary -to the great weight of the evidence, and that it was prejudiced by alleged errors and omissions in the charge to the jury. The motion was denied, and plaintiff has appealed.
On the trial of the case in the circuit court plaintiff relied on records of its business transactions indicating that defendant Jachim had received payments in excess of the amount of money for which he had accounted, by records of disbursements or otherwise. The treasurer, who was examined and -cross-examined at length, denied that he had appropriated and converted to his own use any of the funds of the plaintiff that had come into his hands. It was his claim, in substance, that the records kept were inaccurate and incomplete, that, in fact, receipts had been signed indicating the payment of greater sums of money by employees in charge of the business operations of the plaintiff than had actually been paid to him. He claimed, further, and his testimony in this respect was corroborated, that he had repeatedly sought an audit of the books and records and had stated to other officers of plaintiff corporation that the accounts were not in balance and did not accurately reflect the true situation. His request for such an audit by competent accountants was not granted, apparently because of a reluctance to assume the necessary expense.
After the inception of the controversy involved in the present litigation Jachim procured an audit to be made by a duly qualified individual, the report thereof being introduced in evidence on the trial. The exhibit tends to corroborate the claim that the records were not accurately and properly kept, and that the true condition of the financial affairs of the plaintiff was not reflected therein. The testimony in the case clearly presented a question as to whether the treasurer was guilty of the conduct charged against him in plaintiff’s declaration. Such factual issue was properly submitted to the jury for determination.
In order to be entitled to a verdict in its favor ■at the hands of the jury the burden of proof rested ■on the plaintiff to establish that the treasurer had in fact appropriated and converted to his own use moneys belonging to the plaintiff that came into his possession as treasurer. The charge made was a serious one. Plaintiff’s case rested on the theory that defendant Jachim was guilty of conduct amounting to a criminal offense. Dishonesty on the part ■of an officer or employee under circumstances of "the character here involved may not be lightly inferred, but must be established by clear and satisfactory proof. Baker v. Frischkorn, 271 Mich 485, 490.
The situation is somewhat-analogous to that presented in Monaghan v. Agricultural Fire Insurance Company, 53 Mich 238. There the defendant insurance company claimed by way of defense in an •action on a policy issued by it that the fire which 1 damaged property covered by said policy had been set by one of the persons for whose protection the insurance contract had been executed, and who had procured its issuance. Commenting on the situation in this respect, it was said (p 255):
“The rule of law that the presumption of innocence attended Mrs. Monaghan in this case the same as if she had been on trial for the criminal offense •of arson, and that it was not necessary to establish the charge against her, in the minds of the jury, beyond a reasonable doubt, is correctly laid down in the instruction given. The defendant must establish by a preponderance of proof that the facts exist which would constitute the crime of arson; and there is no preponderance unless the testimony adduced is sufficient to overcome the presumption of innocence as well as to establish the guilt of Mrs. Monaghan. But whenever sufficient evidence is produced to satisfy the jury that she burned or caused the house to be burned, with the intent to defraud the defendant, such evidence is sufficient to overcome the presumption of innocence, and no further proof is required.”
The judgment in the above case, which was entered against the defendant, was reversed because of language in the charge to the jury that may have been misunderstood. Obviously, however, the burden there assumed by the defendant insurance company was analogous to that resting on the plaintiff in the instant action. In other words, plaintiff here was bound to prove as a condition of recovery that its treasurer had in fact appropriated and converted its funds to his own use. Of like import is In re Estate of King, 94 Mich 411, 421, where it was said:
“The presumption of the law is in favor of honest rather than dishonest motives; and, if it is claimed that an employee has misappropriated money with which he has been intrusted, such misappropriation „ must be shown before a claim can be established against him on account of it.”
We are in accord with the finding of the trial judge that the verdict of the jury was not against the great weight of the evidence. The determination of the issues of fact presented depended quite largely on the credibility of the witnesses. Such question was properly left to the jury for determination.. Weeks v. Hyatt, 346 Mich 479, 484.
Appellant also claims that the charge to the jury did not fairly present the substantial issues in the case. The contention is not well-founded. The issues were clearly defined by the pleadings, and the jury was charged with reference thereto. Michigan Court Rule No 37, § 9 (1945), provides that:
“The failure of the court to instruct on any point of law shall not be ground for setting aside the verdict of the jury unless such instruction is requested.”
See, also, Steep v. Harpham, 241 Mich 652, 658. In the ease at bar counsel for plaintiff did not submit io the trial judge any requests to charge. In consequence, the present contention is based on a claim that, notwithstanding the absence of proper requests, the charge as given did not sufficiently emphasize plaintiff’s claims. It is further contended that the .judge emphasized too strongly the burden of proof Testing on the plaintiff. Our examination of the ■charge in its entirety brings us to the conclusion that the issues were fairly presented, the trial judge relying on Farmers Produce Co. v. Aetna Casualty & Surety Co., 238 Mich 405, which, like the case at bar, was an action on a surety bond executed by the 'defendant. The averments of the declaration were such as to leave no question with reference to the nature of the proofs required to support them. "Whether or not they did so was for the jury to determine. As stated in Hartley v. A. I. Rodd Lumber Co., 282 Mich 652, 659:
“Plaintiff was bound to set forth in her declaration the material facts relied on as her cause of action and to prove the same by the testimony. The ■pleadings must frame the issue.”
See, also, 19 MLP, Pleading, § 24, p 53, and Weeks v. Hyatt, supra (p 488). The charge to the jury ‘in the instant case properly presented the claims of the parties.
On behalf of appellant it is argued that the trial judge should have charged the jury that the duty rested on defendant Jachim to account for the moneys claimed by plaintiff to have been received "by him. As before noted, no requests to charge were submitted on behalf of plaintiff. Furthermore, the burden of proof was on the plaintiff in the case to establish the claim set forth in its pleading. This was not a suit for an accounting or for other form of equitable relief, nor was it an action in assumpsit. On the contrary, plaintiff sought judgment on the theory of wrongful conversion of its funds. In bringing action on the bond it was, of course, bound to take such position. The obligation of the defendant surety company was limited in accordance with the obligation that it had executed. It was held in Daugherty v. Parle, 274 Mich 673, that:
“In action against bank and one of its officers for fraudulently inducing plaintiff to pay stock assessment and subsequently to transfer stock, refusal to give requested instructions appropriate only to an action of assumpsit, not to fraud, held, proper, where declaration was in tort and no amendment had been made.” (Syllabus 1.)
Holden v. Lashley-Cox Land Co., 316 Mich 478, cited by counsel for appellant, was a suit in equity for the liquidation of a corporation, the appointment of a receiver, and other equitable relief. It may not be regarded as in point on the issues involved in the instant case, nor in the manner of submission of said issues to the jury. Like comment may be made with reference to other cases to which our attention has been directed. Appellant may not now contend that the failure of the trial judge to charge that defendant Jachim stood in a fiduciary relation to plaintiff was prejudicial to it. It does not appear that the question was raised in the trial court on the motion for a new trial, or otherwise. In consequence it is unnecessary to consider it here. Kellom v. City of Ecorse, 329 Mich 303, 309; Davis v. Jermstad, 350 Mich 439, 444. Other questions argued in the briefs do not require discussion.
We find no reversible error in the case, and the judgment entered in circuit court is affirmed.
Dethmers, C. J., and Kelly, Smith, Black, Edwards, Voelker, and Kavanagh, JJ., concurred.
See CL 1948, § 691.691 et seq. (Stat Ann and Stat Ann 1957 Cum Supp § 27.1461 et seq.). — Reporter. | [
52,
11,
-21,
34,
22,
32,
-30,
-49,
11,
-29,
33,
-8,
28,
3,
-16,
-12,
38,
26,
19,
3,
-20,
-48,
-46,
-27,
-43,
-3,
43,
-3,
6,
10,
-15,
-24,
-17,
-20,
-29,
24,
29,
-32,
-34,
-14,
-35,
-14,
8,
-16,
-20,
-12,
30,
-61,
63,
-16,
28,
19,
48,
-13,
-26,
1,
37,
0,
-3,
-8,
-4,
-32,
24,
-10,
-16,
-31,
-6,
51,
15,
33,
24,
-7,
-8,
6,
-14,
-62,
9,
-9,
-43,
-52,
-45,
-17,
15,
-67,
-33,
23,
0,
26,
2,
4,
-19,
15,
-36,
-16,
-52,
23,
-21,
41,
24,
33,
-6,
-57,
-33,
41,
18,
61,
16,
-95,
-48,
11,
-19,
23,
24,
-9,
15,
-32,
-35,
-3,
-27,
-39,
43,
-15,
59,
-52,
30,
67,
46,
-7,
-62,
9,
16,
8,
-28,
5,
-50,
-12,
-2,
-44,
19,
20,
-1,
76,
-10,
-4,
-55,
35,
39,
-9,
-36,
-35,
-11,
12,
29,
-3,
-45,
-13,
-35,
-26,
33,
-63,
13,
-23,
39,
-14,
-17,
0,
3,
-8,
-21,
-18,
10,
5,
-35,
-12,
-12,
57,
9,
-38,
-41,
-12,
-27,
-14,
-19,
61,
3,
-49,
-2,
-12,
55,
11,
31,
-22,
-67,
50,
-1,
-9,
-9,
25,
22,
3,
54,
-54,
-37,
-17,
-17,
47,
12,
-46,
10,
16,
10,
2,
10,
16,
-75,
3,
-25,
-36,
11,
-28,
-101,
-6,
-13,
4,
-2,
-42,
8,
-46,
9,
-21,
0,
-42,
-5,
57,
-15,
26,
2,
-3,
44,
2,
-83,
15,
1,
4,
-19,
-50,
16,
-30,
-7,
13,
-17,
20,
10,
75,
-13,
-10,
-7,
-8,
-14,
-7,
-26,
18,
-43,
-5,
26,
-27,
20,
19,
-15,
-17,
16,
-20,
25,
-21,
21,
0,
1,
15,
0,
-6,
-39,
40,
-54,
13,
-44,
-2,
-12,
-4,
-9,
-36,
47,
17,
47,
-28,
65,
-3,
37,
-33,
-6,
21,
-23,
-11,
15,
-31,
11,
20,
-28,
-9,
-29,
-3,
28,
20,
-7,
-15,
54,
-11,
5,
0,
-17,
1,
-6,
67,
-20,
28,
44,
-25,
33,
-17,
22,
30,
-27,
-12,
7,
-21,
-28,
-40,
26,
-3,
-14,
1,
25,
29,
63,
-18,
6,
2,
-4,
-2,
-58,
-1,
-50,
24,
3,
0,
30,
31,
64,
22,
-30,
64,
3,
7,
12,
-16,
0,
13,
-23,
-5,
-21,
65,
12,
0,
-72,
-63,
-7,
-17,
-41,
1,
-59,
55,
5,
4,
10,
-28,
4,
-58,
-28,
-33,
-18,
-21,
-57,
21,
22,
42,
3,
33,
-14,
-28,
-31,
43,
-5,
68,
6,
-19,
-43,
-3,
2,
-25,
-3,
9,
-42,
9,
31,
0,
-35,
-8,
38,
25,
4,
-17,
93,
-2,
12,
22,
26,
-95,
16,
30,
-53,
-31,
-20,
-3,
8,
-53,
39,
-19,
-45,
10,
13,
5,
7,
0,
-7,
-14,
-2,
-12,
24,
-12,
83,
33,
-6,
10,
6,
19,
-20,
23,
5,
26,
12,
-33,
3,
-20,
61,
0,
52,
9,
-19,
1,
45,
-8,
32,
-32,
-37,
7,
-25,
-10,
23,
-49,
-6,
-12,
17,
15,
-10,
-27,
-25,
-3,
16,
-21,
35,
12,
15,
12,
-5,
-49,
-14,
49,
-39,
12,
-40,
5,
28,
-8,
-11,
-8,
-4,
-8,
0,
-45,
-19,
15,
-38,
12,
27,
7,
14,
9,
26,
16,
17,
17,
16,
-6,
-29,
34,
-23,
-4,
-7,
52,
35,
-52,
14,
3,
-10,
30,
5,
47,
-15,
-15,
-39,
-82,
-9,
45,
25,
38,
0,
-24,
6,
19,
0,
-5,
14,
0,
37,
61,
14,
-19,
15,
-13,
10,
40,
1,
-11,
34,
-26,
31,
-21,
-18,
12,
-9,
-59,
9,
19,
-20,
49,
-27,
3,
9,
8,
25,
-22,
34,
-30,
-16,
-15,
-59,
17,
24,
37,
-35,
4,
55,
7,
-31,
0,
20,
-5,
31,
-28,
-5,
7,
12,
-45,
-81,
-4,
-14,
-4,
46,
-11,
-17,
0,
-14,
-11,
18,
-25,
-1,
2,
-23,
-60,
17,
9,
-5,
21,
6,
25,
56,
8,
16,
-28,
23,
26,
37,
-55,
21,
-25,
-37,
26,
-53,
47,
-36,
-33,
-12,
24,
61,
-8,
-10,
-48,
-4,
6,
-9,
-16,
-21,
-9,
37,
30,
-34,
1,
17,
-16,
15,
-47,
-24,
16,
9,
21,
0,
7,
74,
30,
25,
0,
14,
-46,
32,
4,
36,
-5,
-36,
25,
-17,
14,
-6,
-27,
11,
6,
-34,
-2,
-10,
22,
18,
-16,
1,
31,
-25,
-1,
-7,
9,
49,
9,
-18,
7,
-20,
-21,
-52,
50,
-25,
-26,
-13,
3,
-3,
25,
-13,
-75,
12,
-21,
-23,
25,
5,
3,
-32,
-19,
-7,
-75,
1,
14,
16,
73,
82,
-3,
-18,
-44,
27,
-29,
-27,
16,
31,
15,
29,
-11,
4,
-8,
46,
2,
37,
8,
30,
15,
6,
25,
18,
30,
8,
51,
9,
-18,
37,
-4,
-55,
-8,
19,
-17,
17,
36,
44,
-21,
-20,
-9,
-41,
15,
-10,
-32,
-8,
12,
11,
-24,
-10,
6,
1,
-55,
14,
54,
51,
27,
16,
22,
-21,
-65,
18,
3,
26,
15,
1,
0,
37,
-33,
-8,
46,
-6,
35,
0,
-31,
-4,
54,
-42,
29,
14,
-9,
43,
30,
-7,
-43,
-37,
-27,
1,
-10,
-52,
64,
-48,
-11,
-24,
-4,
-56,
36,
-5,
-14,
-12,
-41,
9,
9,
19,
12,
-18,
-56,
-4,
8,
-32,
37,
12,
-46,
-48,
-37,
17,
9,
-32,
72,
-6,
4,
-35,
-4,
-66,
37,
1,
28,
-9,
-6,
-1,
-43,
24,
4,
-14,
0,
8,
-41,
-23,
-37,
37,
9,
11,
43,
32,
-29,
8,
57,
-35,
0,
6,
5,
42,
-12,
55,
-35,
-65,
47,
-11,
24,
-16,
20,
28,
10,
-56,
55,
30,
6,
-6,
-8,
0,
-4,
-15,
-16,
26,
6,
8,
29,
-5,
4,
5,
32,
25,
-50,
-70,
0,
30,
-15,
22,
10,
-16,
24,
26,
14,
-32,
26,
-49,
17,
-45,
24,
-7,
51,
53,
46,
32,
31,
-6,
-24,
48,
51,
10,
-11,
-7,
-52,
5,
-14,
-12,
-48,
-50,
-9,
-32,
14,
14,
14,
5,
9,
-28,
20,
36,
53,
-35,
-30,
27,
-33,
3,
-45,
-6,
6,
-13,
6,
17,
30,
18,
-17,
-7,
-25,
67,
-2,
-48,
-8,
10,
-5,
30,
-31,
-27,
13,
22,
-19,
-21,
52,
29,
-80,
7,
-9,
-7,
0,
30,
20,
11,
26,
10,
-37,
-2,
-8,
23,
-26,
0,
-27,
18,
10,
-4,
-19,
41,
34,
43,
18,
-6,
-2,
10,
-18,
-12,
56,
-46,
-20,
-49,
-14,
1,
47,
-19,
-7
] |
Kavanagh, J.
The appellee herein, department of revenue, made an assessment against appellant, Central Discount Company, for an alleged deficiency in intangibles taxes for the years 1945 through 1950 in the amount of $2,024.78, penalty of $506.19 and interest of $274.68, making a total assessed deficiency ■of $2,805.65. Central Discount Company (hereinafter referred to as “Central”) appealed this assessment to the State board of tax appeals. The board determined that Central owed no tax. The department of revenue took an appeal limited only to questions of law from the order of the board as provided ¡by statute (CL 1948, § 205.9 [Stat Ann 1950 Rev §7.657(9)]). On appeal the Ingham circuit court reversed the decision of the hoard and determined liability for tax as a matter of law. In reversing the finding of the board that the transactions between the parties amounted to sales of the intangibles by Central thereby rendering Central not liable for the tax under the Michigan intangibles tax act (PA 1939, No 301, as amended [CL 1948, § 205.131 et seq. (Stat Ann 1950 Rev § 7.556[1] et seq.)]), the circuit court held that the transactions were in reality loans, not sales, and that the transfer of the instruments was made for the purpose of security only. Central now appeals the opinion of the circuit court.
Central has its principal office and place of business in Detroit, Michigan. Central entered into a contract with Securities Investment Company of St. Louis, Missouri (hereinafter referred to as “Securities”), a Delaware corporation, on October 6, 1941.
Under the contract Central would purchase retail instalment sales notes secured by chattel mortgages on new and used automobiles from various automobile dealers. As Central had insufficient funds with which to pay dealers under these instalment sales contracts the parties arranged for Securities to open an account at a Detroit bank and transfer money to Central’s account in that same bank upon drafts being presented with the delivery of notes and mortgages made by retail purchasers. These documents were indorsed and assigned by Central to Securities. The purchase price was determined by a discount charge agreed upon by Central and Securities.
The full purchase price was not paid immediately. The unpaid portion was held by Securities as a reserve to assure it of Central’s performance of collection obligations as provided in the contract. The amount paid by Central to the dealer plus an amount equivalent to 2% of that amount was immediately paid by Securities to Central.
Central paid insurance premiums on, the automobiles covered by chattel mortgages, and upon presentation of these paid bills Securities reimbursed Central and received credit on the reserve account. The balance of the reserve account represented the amount owing by Securities to Central for the balance of the purchase price of the notes and mortgages. Each note and mortgage had a separate reserve. If upon liquidation of the notes and mortgages any loss was sustained it was charged against the reserve. Upon full payment of a note Central received the remainder of the reserve. Central guaranteed payment in full of all the notes. Central had an option to purchase from Securities all of the notes by paying the aggregate balance then owing, at which time all reserves were to be paid or credited to Central.
Central collected payments from individual purchasers named in the notes and mortgages and deposited the amounts daily in the form received in the account maintained by Securities at the bank in Detroit. Central had no right of withdrawal from this account. Central made daily reports to Securities showing receipts and disbursements and Securities audited the accounts every 60 days.
The sole question in the case is: Did Central effect a sale of the intangibles described in the agreement in such a fashion that it passed complete ownership to Securities so as not to be liable under the Michigan intangibles tax act!
Michigan uniform sales act (CL 1948, § 440.1 et seq. [Stat Ann § 19.241 et seq.]) defines a sale as follows:
“A sale of goods is an ag’reement whereby the seller transfers the property in goods to the buyer for a consideration called the price.”
The difficulty arising in a case of this kind is to be able to tell whether or not the seller has parted with the complete ownership of the goods.
46 Am Jur, Sales, § 2, pp 195, 196, says in part :
“A sale is the transfer of the general or absolute, as distinguished from a special, property in a thing. A sale is said to be an entire and absolute transfer of the thing sold, without reservation.”
A particular transaction may constitute a form of transfer other than a sale where the essential elements of a sale are lacking. The fact that the instrument bears the title “Contract of Sale” is unimportant, if the body of the instrument indicates that the intention of the parties was to enter into some other form of agreement. Puryear-Meyer Grocer Co. v. Cardwell Bank (Mo App), 4 SW2d 489.
A bill of sale, absolute on its face, may be shown by extrinsic evidence, to be a chattel mortgage. Klingensmith v. James B. Clow & Sons, 270 Mich 460.
The case of Union Securities, Inc., v. Merchants’ Trust & Savings Co., 205 Ind 127 (185 NE 150, 95 ALR 1189), is authority for the position that if from all the facts of the transaction it clearly appears that what the parties called a sale was in reality not a sale, but a loan, the court must decide according to the real nature of the transaction without regard to the terms applied to it by the parties.
Although the parties in this instance called the contract a sale, the elements of a sale were lacking. Absolute ownership was not passed to Securities. The following provisions of the contract bear this out:
1. The right and option of Central to purchase from Securities at any time all of said notes and chattel mortgages held by Securities by paying the total unpaid balance.
2. If purchase by Central was made, Securities refunded to Central the amount of any reserves held by Securities under the individual contract.
3. As each note was paid in full the remainder of the reserve set up on Securities’ books for that account was paid to Central.
4. Central guaranteed payment in full of all notes.
5. If the payer defaulted on the costs, Central was required to repossess the automobile and to pay whatever balance existed after a sale of it to Securities.
6. Central was required to keep the automobiles constituting the security for the intangible property insured although it was reimbursed by Securities except in the event of cancellation.
7. If the insurance was cancelled a new insurance was obtained by Central at its own cost.
8. No fixed price was involved, but an agreed 2% discount of the face value was paid Central by Securities.
All of the above elements indicate that it was the intention of the parties that the transactions were in reality loans and not sales. The lower court reached this conclusion. We think it was right.
The decision of the trial court is affirmed, with costs to appellee.
Dethmers, C. J., and Carr, Kelly, Smith, Black, Edwards, and Voelker, JJ., concurred. | [
-20,
35,
7,
-30,
-39,
4,
20,
-9,
-44,
20,
-39,
16,
-4,
-35,
2,
-62,
21,
13,
-19,
40,
-42,
-10,
-9,
41,
-3,
28,
22,
-1,
28,
12,
-6,
-28,
22,
26,
-5,
65,
-5,
14,
17,
14,
-28,
30,
-26,
-35,
-33,
-16,
18,
-64,
42,
-23,
2,
-6,
12,
-4,
23,
0,
27,
-20,
11,
-23,
28,
-11,
35,
9,
12,
-9,
1,
-22,
-2,
-20,
-39,
8,
22,
-49,
31,
11,
-1,
32,
-31,
-50,
-10,
-21,
51,
-4,
-66,
52,
12,
3,
-10,
38,
-43,
-12,
15,
17,
22,
10,
16,
22,
-2,
8,
-29,
-38,
-8,
57,
19,
-16,
7,
-36,
-37,
-20,
46,
-47,
7,
-38,
-14,
7,
-68,
19,
-24,
26,
17,
43,
3,
12,
0,
22,
-17,
-9,
-32,
-5,
1,
7,
-53,
59,
-3,
1,
18,
-6,
-15,
3,
-22,
23,
0,
-19,
38,
15,
9,
-40,
22,
-10,
-34,
-20,
30,
30,
-21,
1,
-45,
13,
10,
-108,
28,
-8,
4,
-37,
-1,
7,
-26,
34,
-41,
-3,
14,
8,
-24,
-2,
-17,
46,
35,
-22,
7,
1,
-45,
-20,
54,
-3,
16,
-38,
5,
-34,
7,
-40,
11,
39,
-41,
20,
-33,
-6,
25,
42,
34,
-5,
19,
-41,
14,
-14,
0,
-12,
27,
6,
-1,
-24,
-29,
-41,
19,
-11,
-38,
35,
-42,
20,
30,
12,
53,
44,
-31,
-6,
3,
-22,
7,
20,
18,
-6,
-19,
6,
7,
-6,
9,
34,
27,
-14,
8,
14,
-4,
-40,
-1,
-51,
-3,
4,
-23,
-4,
26,
-21,
-8,
-20,
-77,
10,
-27,
-32,
27,
-12,
-1,
-19,
-8,
50,
-42,
-5,
-54,
-18,
18,
35,
-4,
1,
-24,
-1,
2,
8,
4,
-29,
4,
23,
0,
16,
16,
-37,
41,
-20,
-13,
44,
-26,
33,
16,
-13,
21,
24,
56,
1,
43,
-21,
24,
9,
24,
11,
-26,
13,
27,
10,
28,
-23,
-49,
-12,
4,
-8,
15,
-51,
23,
-41,
-4,
11,
15,
7,
0,
15,
37,
7,
14,
63,
36,
11,
62,
-47,
23,
-17,
16,
18,
25,
-18,
-9,
-51,
19,
-26,
24,
28,
20,
19,
12,
-12,
0,
-6,
-40,
-15,
13,
21,
-30,
2,
10,
75,
57,
27,
43,
19,
-30,
-11,
46,
-9,
24,
-11,
-9,
29,
-63,
-13,
6,
48,
23,
21,
23,
54,
-56,
6,
-32,
24,
-50,
-10,
47,
-4,
-2,
1,
-11,
-20,
17,
4,
12,
25,
-25,
10,
29,
2,
-36,
-70,
19,
-28,
-15,
-18,
-34,
14,
-31,
-12,
2,
-27,
32,
9,
-56,
23,
-37,
-36,
-16,
-18,
-23,
21,
13,
-12,
-4,
-3,
50,
47,
-17,
-53,
7,
-101,
6,
62,
23,
29,
-28,
-13,
10,
-68,
-41,
-4,
7,
28,
13,
-26,
18,
39,
-1,
-2,
64,
-23,
-49,
31,
19,
-2,
1,
-15,
0,
-23,
-5,
31,
21,
-72,
0,
-60,
9,
-49,
9,
-3,
-1,
-14,
-32,
-50,
53,
-13,
-17,
-27,
3,
9,
9,
13,
15,
-69,
26,
-25,
-3,
12,
-20,
0,
-67,
-20,
-45,
-40,
-39,
9,
19,
14,
10,
-15,
15,
-13,
-24,
-31,
51,
-7,
-29,
-34,
22,
-21,
-2,
9,
-36,
-3,
-15,
3,
-13,
-16,
39,
56,
3,
21,
-33,
51,
30,
48,
35,
35,
-46,
22,
-5,
26,
-5,
3,
84,
34,
14,
-3,
37,
1,
-8,
4,
54,
-3,
-35,
13,
-15,
6,
-46,
-13,
-23,
-11,
-22,
-15,
-17,
-1,
-24,
-64,
33,
8,
-35,
19,
33,
23,
-23,
-11,
-63,
61,
36,
-22,
16,
-23,
-73,
7,
0,
-47,
13,
6,
14,
2,
28,
0,
-17,
-42,
-12,
-2,
2,
9,
6,
-64,
-24,
16,
11,
42,
20,
-10,
8,
1,
14,
35,
16,
-13,
20,
-9,
-30,
44,
0,
-20,
-17,
-2,
-4,
-5,
-13,
58,
-28,
-19,
34,
-1,
80,
-14,
3,
0,
2,
2,
10,
-10,
-7,
53,
-8,
-31,
0,
31,
-11,
39,
-16,
30,
12,
-2,
-26,
-4,
-10,
58,
29,
-17,
-32,
-36,
-8,
-51,
5,
6,
-6,
-10,
-27,
-22,
-13,
41,
-13,
18,
39,
20,
-15,
13,
-18,
-27,
8,
-78,
11,
11,
25,
50,
-32,
-18,
11,
8,
51,
-22,
-61,
-27,
-32,
-53,
6,
14,
-36,
-9,
18,
-7,
-22,
8,
10,
-16,
-16,
-8,
-20,
13,
22,
15,
-2,
2,
-67,
-25,
-68,
7,
20,
25,
28,
-6,
9,
16,
-3,
36,
-17,
29,
-27,
28,
22,
28,
6,
-71,
3,
-21,
0,
6,
-1,
29,
-47,
-7,
-20,
-64,
51,
-15,
18,
-33,
4,
-98,
20,
31,
-26,
-15,
3,
-17,
3,
62,
32,
-16,
-2,
0,
-10,
48,
8,
23,
-21,
0,
-2,
70,
0,
-8,
0,
18,
21,
2,
-34,
-10,
-29,
-10,
0,
-3,
-58,
32,
-50,
3,
13,
15,
15,
-26,
43,
-35,
-2,
-1,
-64,
10,
-7,
-7,
-19,
-11,
10,
2,
-23,
-22,
39,
37,
16,
-12,
-1,
8,
11,
25,
30,
-9,
-10,
-67,
-32,
49,
0,
59,
-23,
-12,
-40,
25,
-5,
-58,
47,
29,
-3,
-44,
24,
0,
-50,
-31,
1,
-36,
13,
-7,
-31,
27,
-35,
-11,
12,
58,
-16,
-25,
-14,
22,
3,
7,
15,
13,
13,
33,
-55,
10,
33,
2,
18,
-14,
58,
-25,
13,
-31,
0,
-16,
3,
66,
-46,
-5,
-11,
18,
-42,
8,
9,
-6,
26,
11,
3,
0,
25,
7,
51,
19,
-44,
22,
26,
7,
-13,
19,
24,
43,
-2,
36,
-11,
-4,
-42,
19,
31,
10,
-13,
-37,
-17,
-8,
64,
5,
28,
-19,
14,
-29,
1,
0,
-17,
20,
-64,
-22,
17,
-56,
29,
2,
19,
-24,
7,
-14,
-32,
-36,
-3,
58,
6,
49,
-16,
47,
6,
11,
-3,
-13,
-28,
12,
-3,
-8,
37,
22,
20,
-52,
-77,
-35,
-13,
-21,
26,
21,
22,
32,
-24,
55,
12,
87,
41,
-33,
-11,
15,
0,
-22,
3,
-39,
-6,
-3,
-36,
-1,
15,
28,
-6,
-16,
12,
-22,
-2,
27,
-8,
-28,
-36,
-70,
-16,
-60,
-5,
26,
31,
-31,
19,
15,
74,
-4,
-13,
18,
-14,
2,
28,
-5,
10,
5,
3,
-17,
-6,
20,
78,
-3,
-6,
0,
-3,
-17,
-11,
19,
-28,
6,
56,
24,
38,
-7,
-28,
7,
53,
-4,
2,
-28,
33,
-78,
24,
-40,
-13,
-15,
27,
-51,
-13,
35,
-35,
0,
1,
28,
-26,
0,
-8,
36,
-18,
-28,
-3,
41,
-30,
22
] |
On Rehearing.
Dethmbrs, J.
For the reasons set forth in the opinion of Mr. Justice Souris in this case on its original hearing (1968), 380 Mich 390, and my opinion on rehearing in Fisher-New Center Company v. State Tax Commission, 381 Mich 713, in which the record and proceedings before the State tax commission are so markedly similar to those in the instant case, I would reverse and remand for rehearing before the State tax commission in accordance with the hearing procedures suggested in the Souris opinions in this case and in Fisher-New Center Company v. State Tax Commission (1969), 380 Mich 340.
Costs to plaintiff.
T. E. Brennan, C. J., and Kelly, Black, JJ., concurred with Dethmers, J. | [
-6,
13,
-14,
-35,
-13,
-43,
-42,
-25,
-78,
17,
-11,
1,
13,
-3,
47,
-40,
4,
-32,
-12,
-8,
-44,
9,
31,
31,
-7,
24,
-17,
19,
44,
-46,
-17,
-39,
12,
-1,
20,
-57,
-8,
24,
0,
11,
8,
48,
-7,
-87,
-22,
-6,
49,
0,
24,
23,
-3,
18,
-58,
30,
8,
28,
-18,
8,
-50,
40,
-3,
24,
6,
43,
29,
-32,
-4,
-26,
11,
-56,
-11,
-14,
20,
37,
41,
7,
-23,
-33,
-21,
45,
1,
5,
2,
-39,
-36,
41,
42,
-71,
-7,
-11,
25,
12,
-38,
-15,
50,
13,
7,
-25,
26,
21,
-44,
-33,
-1,
7,
11,
-2,
0,
-1,
-43,
-18,
66,
-25,
11,
-30,
-35,
-10,
-51,
-26,
-3,
-6,
27,
40,
10,
7,
14,
30,
16,
-22,
-11,
38,
-8,
-6,
12,
26,
17,
29,
-14,
-25,
-39,
-8,
30,
47,
4,
27,
29,
7,
7,
23,
35,
25,
-7,
-37,
-6,
12,
0,
-52,
9,
-62,
41,
-8,
26,
8,
-50,
-13,
-12,
4,
13,
18,
-28,
-11,
54,
41,
31,
32,
-2,
9,
8,
8,
-33,
8,
-7,
49,
18,
-76,
-13,
-39,
0,
29,
-26,
7,
8,
32,
-20,
2,
-27,
-15,
20,
38,
-47,
-2,
-15,
-3,
-25,
-18,
26,
-3,
19,
-65,
-18,
15,
-38,
43,
-58,
-12,
-70,
7,
8,
-31,
76,
27,
4,
1,
104,
57,
-60,
-14,
44,
27,
44,
-18,
-12,
-20,
3,
2,
-34,
-25,
22,
26,
18,
21,
3,
-18,
27,
-39,
-6,
56,
-19,
37,
-16,
-30,
37,
3,
-21,
20,
6,
11,
-4,
24,
15,
-26,
-7,
36,
-11,
-27,
-31,
-16,
38,
79,
33,
32,
12,
28,
22,
32,
14,
-7,
-5,
-38,
55,
69,
-51,
-7,
-19,
9,
-20,
-14,
-8,
15,
30,
2,
62,
45,
17,
-13,
21,
-7,
-8,
-26,
-25,
-11,
-12,
25,
14,
30,
10,
8,
12,
25,
-18,
29,
19,
3,
4,
-34,
6,
-13,
-52,
62,
50,
-28,
57,
20,
27,
-9,
-60,
13,
54,
-85,
-25,
-46,
25,
4,
41,
-28,
32,
-41,
18,
-41,
-20,
12,
3,
-6,
-37,
5,
7,
32,
-26,
-7,
-8,
28,
-3,
2,
-3,
77,
43,
-28,
-34,
-30,
4,
5,
37,
-46,
40,
7,
-48,
45,
-5,
-43,
19,
22,
-8,
-12,
-65,
-10,
-52,
6,
3,
46,
-52,
-19,
13,
-29,
-73,
-26,
10,
-12,
-29,
4,
-41,
-24,
-6,
-10,
19,
13,
-29,
-39,
-32,
-75,
-9,
-10,
-10,
21,
71,
19,
8,
21,
45,
-35,
21,
81,
12,
-37,
-38,
-2,
-17,
-36,
-31,
19,
3,
-49,
1,
10,
-13,
-31,
8,
6,
-14,
-1,
54,
9,
-38,
17,
15,
-75,
-8,
8,
35,
-21,
35,
-32,
-67,
13,
-95,
-2,
27,
-49,
-65,
10,
51,
-29,
-11,
19,
-15,
-15,
-7,
-3,
-4,
-24,
23,
-40,
-49,
10,
25,
-68,
-3,
-39,
10,
-12,
31,
89,
-15,
-15,
34,
78,
-39,
15,
-36,
-42,
11,
8,
0,
-1,
-5,
-7,
-38,
38,
-11,
-34,
-18,
-39,
16,
35,
16,
-4,
-37,
4,
-44,
35,
18,
50,
-45,
-35,
50,
-51,
12,
-14,
-1,
10,
-22,
-28,
62,
21,
48,
16,
8,
45,
-18,
6,
12,
15,
-32,
29,
-10,
-1,
-13,
9,
9,
23,
11,
-25,
93,
25,
31,
-19,
-35,
-21,
-18,
-11,
-13,
35,
-26,
2,
12,
-40,
40,
19,
11,
8,
23,
-35,
-9,
-11,
-2,
44,
-18,
8,
17,
21,
22,
11,
24,
2,
-7,
0,
33,
-34,
-39,
-35,
37,
-19,
-7,
-9,
58,
51,
-3,
13,
-3,
-29,
-13,
-64,
46,
2,
23,
-32,
-36,
-10,
21,
-7,
44,
-8,
-38,
-5,
10,
30,
-55,
24,
33,
-10,
-13,
-31,
-36,
-22,
-32,
-82,
8,
25,
-22,
13,
60,
32,
43,
-22,
9,
-20,
-30,
28,
-15,
28,
-17,
9,
-21,
-31,
0,
-26,
59,
-15,
-3,
-17,
-68,
15,
29,
-7,
-10,
-1,
-103,
-4,
55,
-45,
-20,
-22,
-97,
-12,
9,
-60,
-19,
-61,
-36,
4,
-27,
54,
12,
32,
11,
21,
-61,
31,
33,
-13,
3,
-44,
-14,
7,
31,
8,
-65,
-8,
16,
-13,
94,
-19,
-17,
-22,
21,
52,
16,
-5,
-20,
21,
-51,
20,
7,
-3,
-50,
-21,
-12,
20,
50,
-13,
-28,
23,
-4,
-5,
-49,
-53,
-26,
36,
50,
32,
0,
41,
7,
-7,
-2,
-7,
-48,
22,
-18,
39,
48,
-11,
26,
-21,
-6,
-8,
10,
28,
-31,
-18,
10,
-2,
-20,
-28,
26,
30,
4,
-18,
6,
-33,
-27,
-28,
-29,
31,
-58,
-13,
33,
67,
23,
2,
-20,
34,
2,
6,
-57,
-10,
-59,
18,
3,
55,
-6,
5,
-6,
23,
-4,
4,
-5,
43,
-14,
-16,
-45,
21,
27,
38,
-18,
2,
19,
47,
43,
-68,
0,
-13,
-35,
19,
-56,
32,
35,
18,
-31,
5,
-13,
-9,
-37,
22,
-21,
-13,
22,
-64,
19,
-13,
-47,
18,
-15,
47,
39,
-7,
1,
33,
8,
0,
33,
15,
-9,
30,
-26,
18,
14,
-9,
7,
21,
39,
27,
-1,
-10,
-17,
-34,
10,
-35,
-19,
28,
-45,
-25,
39,
-32,
43,
26,
-16,
29,
18,
-11,
-1,
-6,
36,
-2,
-20,
-4,
-9,
-52,
17,
9,
-8,
-9,
-1,
-24,
13,
21,
-19,
69,
0,
14,
-77,
13,
-4,
62,
-39,
-21,
11,
46,
-37,
39,
54,
13,
-17,
22,
4,
3,
35,
-23,
-19,
-45,
9,
-8,
49,
-3,
-46,
-25,
-41,
3,
18,
17,
33,
-22,
34,
20,
1,
-15,
1,
-3,
43,
-54,
-11,
-12,
56,
72,
34,
-26,
19,
-25,
-3,
-10,
-16,
-14,
-45,
78,
27,
41,
-33,
-43,
-14,
0,
-9,
16,
26,
49,
-37,
-33,
24,
-40,
-12,
-5,
-10,
6,
68,
11,
-55,
9,
-27,
-54,
40,
-42,
11,
12,
0,
46,
-15,
33,
-30,
-22,
-22,
-7,
-57,
-36,
-9,
-38,
-9,
14,
-41,
2,
11,
72,
-22,
-17,
-5,
-37,
31,
17,
9,
4,
2,
-8,
8,
24,
-23,
44,
82,
25,
-20,
-2,
6,
1,
3,
-12,
-13,
38,
10,
-44,
-4,
29,
25,
-47,
-66,
5,
16,
5,
-33,
17,
0,
-31,
-43,
-55,
11,
-21,
15,
35,
59,
-14,
-43,
10,
-20,
-13,
107,
9,
-45,
-14,
21,
-55,
-13,
-25,
62,
8,
-39,
19,
0,
51,
-8,
36,
-44,
22,
18,
-2,
-39,
-11,
13,
31,
-29,
-1
] |
Dethmers, C. J.
Plaintiff claims damages for defendant’s trespass upon and flooding his property. Defendant raises as defense an act of Rod. The main question in the case is whether that defense was properly left to the jury as a question of fact.
A low area or basin, about five acres in size, was surrounded by roads on the west, north, and east sides. To the south was a hill and an area of several hundred acres which drained into the five-acre basin.
For years prior to 1957 water accumulating in the basin each spring from thawing snows and rains escaped through an 18-inch culvert under the west road and flowed over the top of that road to a depth of from 12 to 14 inches and in a stream of from 40 to 50 feet in width, often continuing thus for several days.
In 1957 defendant replaced the 18-inch culvert with a 24-inch culvert and raised the level of the west road in that area by several feet. Thereafter, water no longer flowed across that road as before.
There are proofs in support of the following: In the spring of 1959 an extraordinarily heavy rainfall occurred and the basin filled with water nearly to the top of the raised west road. The unusually large accumulation of water in the basin caused a breakthrough and washout through the east road. The flow of water from that opening turned north beyond the east road and rushed down toward Lake Superior. In so doing it poured over plaintiffs property and gouged out a large ravine near his summer residence into which the house collapsed with plaintiff and several people in it. The damages resulting from this occurrence are the basis for this action.
At the conclusion of proofs for both sides, plaintiff moved for a directed verdict for plaintiff on the question of liability with the amount of damages to be left to jury determination. Plaintiff also submitted requests to charge, including one which amounted to a request for such directed verdict. These the trial court refused.
The defendant having claimed that plaintiff’s injury was due to an act of God, namely, a torrential rainfall, the court instructed the jury on that subject, defining an act of God in legal contemplation and stating the circumstances under which it was available as a defense. The court made it clear that if an act of God occurred which was not a superseding, supervening force, obliterating all other causes brought about by defendant, then defendant would be liable, but, if there had been an act of God, which was the sole cause of the disaster and the latter was not contributed to by acts or inaction on defendant’s part, then defendant would not be liable. There was no complaint on plaintiff’s part at trial nor on appeal as to the correctness of the court’s charge on this subject, but only that it should not have been given at all.
In this case plaintiff cites cases for the proposition that when an act of defendant concurs with an act of God as a cause of the injury, defendant is liable; that an act of God is a defense only if it is the sole proximate cause of the injury. Plaintiff then insists that under the proofs here there can be no question but that defendant’s action in raising the west road was, as some testimony indicates, a concurring cause of the injury, without which it would not have happened despite the unusual rainfall, and, therefore, defendant should be held liable as a matter of law.
Defendant relies on Golden & Boter Transfer Co. v. Brown & Sehler Co. (1920), 209 Mich 503, as holding, under the proofs in that case, that the question of an act of God was a question of fact for the jury. Defendant then quotes from the opinion of this Court in that case, as approving the quotation therein contained from the instructions of the trial court, as follows (pp 509, 510):
“ ‘Now if you find that the sole cause of the falling of the wall was an extraordinary wind storm, such a wind storm as our experience in this locality would not lead us to anticipate, your verdict should be for the defendants, a verdict of no cause of action, for the falling of the wall from such a cause would be what is termed an act of God. I am going to repeat that to you again so that we will make no mistake about your getting it. If you find that the sole cause of the falling of the wall was an extraordinary wind storm, such a wind storm as our experience in this locality would not lead us to antic ipate, your verdict should he for the defendants, a verdict of no cause of action, because the defendants would not be required by the law to guard against such an extraordinary storm as I have just been speaking of, for the falling of the wall from such a cause would be what is termed the act of God. By the term “act of God” is meant those events and accidents which proceed from natural causes and cannot be anticipated and provided against, such as unprecedented storms, or freshets, lightning, earthquakes, et cetera. For a loss occasioned by the act of God, ns I have defined it, the defendants would not be responsible. If the sole cause of the falling of the wall was an act of God, I said the plaintiff cannot recover.’ ”
There was testimony here to indicate, or from which it might be inferred, that but for the unusual rainfall here involved the accident and injury would not have occurred.
The trial court was of the view that the proofs left the questions of whether there had been an act of God which caused plaintiff’s damages and whether it was the sole cause, or whether defendant’s change of the grade and level of the west road was a contributing and concurring cause thus rendering it liable despite the act of God, as questions of fact for jury determination. With that view the Court of Appeals concurred and affirmed the jury’s verdict of no cause for action. We do likewise.
Affirmed. Costs to defendant.
Kelly, O’Hara, and T. E. Brennan, JJ., concurred with Dethmers, C. J.
American Coal Co. v. De Wese (CA 4, 1929), 30 F2d 349; Jackson v. Wisconsin Telephone Co. (1894), 88 Wis 243 (60 NW 430) ; Zollman v. Baltimore O. S. W. R. Co. (1918), 70 Ind App 395 (121 NE 135); Chidester v. Consolidated Co. (1881), 59 Cal 197; City of Piqua y. Morris (1918), 98 Ohio St 42 (120 NE 300) ; Inland Power 4 Light Co. v. Grieger (CA 9, 1937), 91 F2d 811; Sauer v. Rural Co-op Power Association (1948), 225 Minn 356 (31 NW2d 15) ; Williams v. Columbus Producing Co. (1917), 80 W Va 683 (93 SE 809); Tobin v. Lake Shore & M. S. R. Co. (1916), 192 Mich 549; Klawinski v. Lake Shore & M. S. R. Co. (1915), 185 Mich 643; LeVasseur v. Allen Electric Co. (1953), 338 Mich 121. | [
-45,
43,
66,
-53,
-44,
3,
0,
33,
-17,
64,
-24,
14,
22,
23,
14,
-73,
-30,
-19,
-5,
-25,
-25,
-17,
4,
-9,
3,
-26,
61,
-67,
-27,
27,
2,
25,
-16,
-16,
-24,
-26,
27,
-20,
30,
28,
22,
3,
24,
-22,
39,
-23,
-11,
-5,
10,
39,
9,
-3,
-1,
-5,
0,
-5,
14,
46,
-40,
-25,
-38,
-24,
-8,
25,
14,
1,
-19,
-18,
8,
0,
-27,
5,
20,
-15,
26,
26,
-33,
14,
9,
12,
-34,
39,
35,
14,
-4,
-13,
7,
-29,
-15,
-18,
1,
-37,
7,
47,
9,
-17,
7,
9,
-25,
1,
-9,
12,
-23,
-2,
-15,
-11,
-68,
-28,
-28,
-18,
48,
50,
40,
23,
-1,
-39,
-26,
-47,
-20,
-25,
34,
-9,
3,
-26,
-36,
16,
-45,
-44,
-21,
18,
-1,
3,
-9,
35,
-16,
-13,
-57,
-30,
6,
-51,
5,
20,
-27,
-21,
-5,
56,
39,
24,
13,
-1,
-14,
12,
-1,
-23,
8,
-17,
-22,
-70,
-3,
-2,
6,
-11,
-7,
-13,
-7,
4,
-10,
4,
-30,
-51,
49,
-36,
-23,
-6,
55,
2,
-11,
-29,
-3,
-1,
38,
27,
20,
23,
-91,
-21,
-73,
30,
-8,
79,
38,
-59,
-26,
-15,
9,
41,
-19,
21,
9,
-40,
25,
-38,
-33,
-69,
-34,
36,
5,
42,
22,
-33,
36,
-18,
19,
4,
-27,
-12,
53,
-34,
29,
-54,
-24,
-3,
46,
43,
-23,
1,
-21,
12,
-11,
-4,
35,
-52,
-7,
28,
-4,
4,
5,
21,
-15,
0,
-8,
-3,
-32,
-10,
52,
49,
-9,
18,
23,
55,
-23,
-8,
-10,
-10,
22,
47,
25,
-6,
-33,
-30,
14,
26,
26,
-45,
23,
15,
12,
26,
-25,
-56,
27,
28,
22,
11,
-57,
-27,
-34,
20,
-4,
20,
-15,
-2,
-51,
-29,
-22,
-7,
-21,
10,
-13,
-2,
8,
-17,
-10,
-19,
0,
24,
37,
-81,
23,
-40,
-1,
-54,
-7,
11,
39,
-13,
-21,
43,
16,
13,
-4,
25,
1,
-3,
-3,
80,
45,
-8,
-14,
-8,
29,
1,
-18,
3,
-60,
56,
9,
-3,
-15,
57,
-1,
33,
-25,
12,
40,
-27,
40,
-51,
-53,
24,
14,
-21,
-6,
-12,
7,
11,
22,
14,
-14,
0,
-17,
23,
-24,
16,
-11,
-37,
-16,
-22,
-28,
35,
-7,
-6,
-21,
20,
0,
-3,
18,
-64,
-12,
10,
-67,
14,
-25,
15,
-13,
10,
11,
24,
-68,
51,
1,
-39,
32,
29,
41,
18,
-9,
-63,
-42,
53,
-55,
-25,
21,
-25,
-1,
-22,
-10,
-52,
-11,
-23,
-25,
27,
60,
13,
-8,
6,
8,
-21,
-11,
-11,
-23,
-47,
26,
-24,
7,
20,
41,
20,
24,
47,
18,
9,
39,
-24,
15,
-44,
14,
-47,
-12,
20,
15,
26,
24,
-46,
7,
6,
-3,
8,
-10,
-20,
-50,
32,
14,
-19,
2,
1,
28,
14,
-8,
-72,
-14,
10,
2,
18,
-1,
69,
23,
-10,
71,
17,
-19,
9,
-3,
-65,
19,
-9,
-31,
-21,
12,
17,
32,
47,
-13,
9,
-15,
34,
15,
17,
-29,
-24,
15,
33,
10,
-65,
-13,
12,
21,
-3,
26,
-18,
3,
44,
10,
-33,
-12,
34,
-25,
42,
-30,
19,
2,
15,
-53,
-12,
22,
-17,
-13,
49,
9,
33,
-16,
-38,
24,
7,
-54,
34,
44,
-35,
-5,
-11,
-9,
-30,
-2,
9,
-15,
23,
6,
23,
26,
2,
45,
-48,
-41,
9,
-24,
8,
-14,
11,
19,
0,
-8,
26,
24,
30,
-18,
-21,
10,
-16,
1,
-23,
7,
6,
0,
31,
-13,
23,
-71,
-89,
28,
-3,
-8,
24,
22,
-37,
20,
-1,
39,
10,
20,
9,
11,
41,
4,
-23,
-39,
28,
-28,
5,
-12,
22,
-10,
-21,
-9,
-4,
-41,
59,
38,
44,
16,
8,
26,
11,
2,
-45,
-6,
7,
4,
-2,
-8,
-15,
0,
-50,
-27,
-6,
34,
40,
-38,
-29,
32,
-7,
41,
-11,
-7,
0,
59,
-1,
-9,
-61,
-28,
11,
24,
-35,
13,
37,
-29,
1,
-9,
37,
-33,
-32,
-20,
-4,
-7,
-24,
-1,
-16,
6,
17,
-45,
42,
-29,
1,
-35,
-49,
-72,
-22,
-9,
-24,
-12,
-51,
-38,
54,
-24,
-3,
36,
-16,
48,
-6,
-16,
-24,
-14,
-5,
-38,
-30,
-21,
25,
25,
35,
-26,
-24,
-10,
-56,
-2,
37,
18,
-32,
-21,
40,
35,
-9,
37,
-40,
-25,
17,
9,
24,
47,
4,
46,
3,
26,
-11,
-1,
-13,
25,
34,
32,
7,
0,
13,
0,
-32,
-8,
12,
-38,
4,
10,
-19,
11,
-22,
27,
8,
4,
-45,
-25,
4,
2,
-41,
-18,
46,
23,
-34,
-9,
-31,
10,
-2,
13,
4,
-1,
0,
1,
-17,
-9,
11,
71,
56,
1,
9,
-13,
-42,
11,
-33,
-10,
-32,
-30,
-37,
34,
20,
9,
-4,
-4,
-18,
63,
-9,
13,
12,
-9,
22,
-22,
-22,
54,
44,
-18,
-43,
3,
-43,
39,
-40,
2,
7,
-28,
-16,
19,
-24,
-34,
15,
-19,
-14,
44,
-11,
-26,
28,
-23,
-1,
45,
-11,
51,
-34,
-9,
-4,
-9,
17,
-5,
-31,
11,
4,
17,
-14,
22,
-22,
26,
30,
42,
59,
9,
-11,
9,
4,
-7,
12,
-30,
9,
-22,
-15,
-6,
62,
43,
31,
23,
-6,
4,
-8,
0,
-25,
14,
62,
38,
-37,
-4,
-38,
55,
-37,
15,
93,
-7,
4,
5,
24,
-54,
-20,
-18,
17,
8,
24,
9,
6,
16,
39,
-24,
39,
11,
-7,
11,
16,
-4,
26,
-33,
15,
5,
-36,
23,
-12,
-5,
15,
31,
-23,
20,
-2,
-37,
40,
18,
10,
-56,
20,
8,
30,
-48,
-23,
59,
-11,
12,
43,
-39,
7,
-36,
12,
-14,
-15,
-8,
67,
46,
8,
7,
17,
-15,
-8,
-25,
7,
-26,
-34,
-58,
11,
-7,
40,
-21,
-60,
-26,
-21,
-52,
-17,
-7,
-32,
-14,
20,
-13,
-8,
-2,
15,
9,
45,
13,
19,
19,
-54,
-67,
29,
-1,
11,
-28,
84,
-80,
-43,
-12,
6,
0,
13,
23,
-57,
-24,
12,
37,
-59,
-17,
59,
12,
7,
30,
-35,
-10,
-15,
-36,
-5,
3,
9,
6,
25,
2,
31,
-43,
-38,
-2,
33,
7,
-12,
49,
21,
54,
23,
-41,
17,
0,
-7,
-53,
-22,
47,
-37,
-18,
11,
-18,
-17,
16,
-4,
-1,
3,
21,
11,
-30,
-19,
-32,
-3,
-8,
58,
81,
37,
-34,
-40,
-65,
13,
-10,
10,
-28,
3,
-30,
37,
39,
56,
48,
38,
39,
-37,
0,
11,
7,
35,
-47,
50,
-4,
11,
-41,
-16,
25,
-10,
-44,
41
] |
Kelly, J.
Defendant Quimby’s claim against the third-party tort-feasor was settled before judgment. The settlement agreement provided that any claims of plaintiff-employer were not included in the settlement.
Plaintiff had not intervened in defendant’s action against the third-party tort-feasor nor had it started its own action as provided by statute, and the statute of limitations had run against plaintiff at the time of settlement.
Plaintiff commenced action to recover the moneys plaintiff had paid defendant under the workmen’s compensation law prior to defendant’s settlement with the third-party tort-feasor and joined defendant Quimby’s attorney, George L. McCargar, Jr., as a party defendant.
Defendants’ answer denied “that plaintiff is entitled to any judgment against these defendants or either of them in any sum of money whatsoever.”
The trial court granted plaintiff’s motion for summary judgment against both defendants.
'•The Court of Appeals (5 Mich App 174, 180) reversed the trial court by holding that plaintiff “is not entitled to be reimbursed” and stated:
... “The question of the attorney’s personal liability in turning over the amounts recovered to his client without reimbursing the employer need not be considered in light of the above decision which does not recognize any right of the employer to the settlement made by its employee in this case.”
The question presented calls for determination of legislative intent as expressed in CLS 1961, § 413-.15 (Stat Ann 1960 Eev § 17.189), the pertinent part being the first 6 paragraphs as follows:
“Where the injury for which compensation is payable under this .act was caused under circumstances creating a legal liability in some person other than a natural person in the same employ or the employer to pay damages in respect thereof, the acceptance of compensation benefits or the taking of proceedings to enforce compensation payments shall not act as an election of remedies, but such injured ^employee or his dependents or their personal representative may also proceed to enforce the liability of such third party for damages in accordance with the provisions of this section. If the injured employee or his dependents or personal representative does not commence such action within 1 year after the occurrence of the personal injury, then the employer or its compensation insurance carrier may, within the period of time for the commencement of actions prescribed by statute, enforce the liability of such other person in the name of that person. Not less than 30 days before the commencement of suit by any party under this section, such party ■ shall notify, by registered mail at their last known •address, the workmen’s compensation commission, the injured employee, or in the event of his death, his known dependents, or personal representative or his known next of kin, his employer and the work men’s compensation insurance carrier. Any party in interest shall have a right to join in said suit' ‘
“Prior to the entry of judgment, either. the .employer or his insurance carrier or the employee or his personal representative may settle their claims as their interest shall appear and may execute releases therefor. . ■
“Such settlement and release by the employee shall not be a bar to action by the employeror its compensation insurance carrier to.- proceed against said third party for any interest or claim it might have. . .. ■
“In the event the injured employee or his de: pendents or personal representative shall settle their claim for injury or death, or commence proceeding thereon against the third party before the payment, of workmen’s compensation, such recovery or com-’ mencement of proceedings shall not act as an elec-' tion of remedies and any moneys so recovered shall bé'applied as herein provided.
. “In an action to enforce the liability of a third party, the plaintiff may recover any amount whiph the employee or his dependents or personal repfe-' sentative would be entitled to recover in an action in tort. Any recovery against the third party for damages resulting from 'personal injuries or déath: only, after deducting expenses ■ of recovery, shall first reimburse the employer or its workmen’s compensation insurance carrier for any amounts paid or payable under the workmen’s compensation act to date of recovery, and the balance shall forthwith be paid to the employee or his dependents or per-, sonal representative and shall be treated as an advance payment by the employer on account of any future payment of compensation benefits.
“Expenses of recovery shall be the reasonable expenditures, including attorney fees, incurred in effecting such recovery. Attorney fees, unless otherwise agreed upon, shall be divided among the attorneys for the plaintiff as directed by the court. The expenses of recovery above mentioned shall b§ apportioned by the court between tbe parties as their interests appear at the time of said recovery.”
Construing this statute, the trial court in its opinions stated:
“The workmen’s compensation law, taken as a whole, would seem to recognize the right of the compensation insurance carrier to participate in any recovery by the employee from a third-party tort-feasor. * * *
“This statute expressly provides that any ‘recovery’ for ‘personal injuries or death only’ shall ‘first reimburse the employer or its workmen’s compensation insurance carrier for any amounts paid or payable’ after deduction of expenses of recovery. Any settlement for any items of damage for personal injuries would be expressly covered by this act. And this would be true whether or not the employer or its insurance carrier were parties to the suit.
“The fact that the employer may have secured releases from the third-party tort-feasor does not in any way alter the position of the employer in respect to his rights under the act. Defendants have omitted this claim from their brief and the court considers it abandoned.”
In contrast to the trial court, we quote the following from the opinion of the Court of Appeals:
“The employer contends that the act requires reimbursement to be made from ‘any recovery against the third party for damages resulting from personal injuries.’ * * *
“The interpretation given to the statute by the appellee in the instant case would nullify the section providing for separate settlements and releases of employer or employee claims or interests. * * *
“Transamerican Freight Lines, Inc., is not entitled to be reimbursed for the sums paid out of an agree ment which was a settlement of its employee’s individual claims against a third party and which specifically excludes claims of Transamerican. This settlement and release does not bar an action by the employer or its insurance carrier to recover amounts paid under the workmen’s compensation act from the third party.”
From the first workmen’s compensation legislation in Michigan this Court has recognized the employer-insurer’s right to reimbursement as a form of statutory subrogation.
Prior to 1952, when the amendment to part 3, § 15, with which this Court is here concerned, was enacted, the statute provided that:
“Where the injury for which compensation is payable under this act was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof, the employee may at his option proceed either at law against that person to recover damages, or against the employer for compensation under this act, but not against both, and if compensation be paid under this act the employer may enforce for his benefit or for that of the insurance company carrying such risk, or the commissioner of insurance, as the case may be, the liability of such other person.”
This Court in Michigan Employers Casualty Co. v. Doucette (1922), 218 Mich 363, 365, considered the above quoted statutory language, and defining the employer’s right to recovery said:
“No assignment is necessary. The statute confers the right by way of subrogation.”
This decision of employer’s rights was subsequently approved in Utley v. Taylor & Gaskin, Inc. (1943), 305 Mich 561, 575 and Bay State Milling Co. v. Izak (1945), 310 Mich 601, 604.
The 1952 amendment of part 3, § 15, among other things, provides for the deduction of reasonable expenses of recovery before the employer-insurer’s right to reimbursement from the employee. See our 1954 decision in Rookledge v. Garwood, 340 Mich 444, holding the employer-insurer’s right to reimbursement without discussion of attorney fees as an expense of recovery, and where this Court said (p 458):
“ ‘The former statute required an employee to elect whether to pursue his remedy against the employer for compensation or to seek his common-law remedy against the third party causing the injury. Under the present statute the employee may receive compensation or take proceedings to enforce compensation payments and also sue the third party. The statute provides in substance, that in case of recovery against the third party, after deducting expenses of recovery, the amount of the judgment is to be used first to reimburse the employer or the workmen’s compensation insurance carrier for amounts paid or payable under the compensation act to date of recovery and the balance is paid to the insured employee or his dependents. This statute pertains to the remedy and hence applies to the present action. Judd v. Judd, 125 Mich 228; Heineman v. Schloss, 83 Mich 153; Nash v. Robinson, 226 Mich 146; Detroit Club v. State of Michigan, 309 Mich 721; Stott v. Stott Realty Company, 288 Mich 35. Since the' change in the statute created no new cause of action and the amendment merely limited a procedural defense, the amended statute governs this controversy.’ ” (Emphasis ours.)
In construing legislative intent, we keep in mind our holding in regard to the mandatory word “shall” and construe the act and its amendments as a whole, thus avoiding if possible construction of one provision in such a manner as to render another of no effect.
We do not agree with the Court of Appeals’ conclusion that to hold that the act requires reimbursement to be made from “ ‘any recovery against the third party for damages resulting from personal injuries’ ” would “nullify the section providing for separate settlements and releases of employer or employee’s claims or interests.”
We quote with approval the following from plaintiff-appellant’s brief:
“The crux of plaintiff’s dispute with the defendants and with the Court of Appeals — the jugular issue — lies not in the proposition that an employee or an employer-insurer may each settle and release a third party as ‘their interests shall appear’, but, rather, in what constitutes the ‘interest’ that each may settle without affecting the interests of the other.”
Paragraphs 1 and 5 of the statute above quoted establish the right to bring an action, the recovery and reimbursement. Paragraph 1 provides that both employer and employee may become party plaintiff, and paragraph 5 states that the action may be brought to recover any damages “for which the employee or his dependents or personal representatives will be entitled to recover in an action for tort” and that “any recovery” for damages resulting “from personal injury or death only, after deduction of expenses for recovery, shall first reimburse the employer or its workmen’s compensation insurance carrier.” (Emphasis ours.)
Paragraphs 2, 3 and 4 provide for settlement. Paragraph 2 provides that both employer and employee have the right to settle before judgment. Paragraph 3 provides the employee’s release shall not be a bar to any action by the employer insurer, and paragraph 4 makes it plain that if the employee settles his claim “for injury or death” then “any moneys so recovered” after deduction of expenses of recovery including attorney fees must be first applied to reimbursement of the employer-insurer.
The statutory provision allows no alternative other than approving the trial court’s order granting summary judgment in favor of plaintiff against defendant Clayton L. Quimby.
There remains the question: Should defendant Quimby’s attorney, George L. McCargar, Jr., be held liable ?
Plaintiff’s complaint alleged that on or about October, 1960, defendant Quimby commenced the action in the circuit court for the county of Jackson ; that defendants Quimby and McCargar, having-knowledge that plaintiff intended to intervene, requested plaintiff not to do so, promising- that if plaintiff would so agree “that defendant Clayton L. Quimby and defendant George L. McCargar would hold and secure any judgment that might be recovered against third-party tort-feasor for the joint benefit of plaintiff and defendants and until the total respective rights of plaintiff and defendants thereto could be ascertained, determined or settled; that defendant Clayton L. Quimby and defendant George L. McCargar did further promise and agree in exchange for said considerations by plaintiff that no settlement negotiations would be completed or accomplished without the knowledge and consent of plaintiff and without the respective rights of plain tiff and defendants in and to any settlement sum having first been determined and settled, and defendants further promised that plaintiff would be currently and constantly kept advised and informed of the progress of all settlement negotiations as and when they occurred.” Relying on said promises, plaintiff did not intervene, and on December 20, 1963, defendants accomplished the settlement and dismissal of the suit. Plaintiff had no knowledge of such action until January 18,1964.
Defendants’ answer denied “that there are any representations or agreements of any type or kind whatsoever on which the plaintiff could rely for the reason that such promises, agreements or representations did not exist and further defendants deny that plaintiff refrained from attempting to intervene in said law suit because of any such agreements or promises.”
Defendant George L. McCargar filed a motion for summary judgment. '
January 6, 1965, the trial court filed an opinion disposing of defendant McCargar’s motion holding:
“The workmen’s compensation law, taken as a whole, would seem to recognize the right of the compensation insurance carrier to participate in any recovery by the employee from a third party tortfeasor. * * *
“Was there a contract between plaintiff and Mc-Cargar that the latter hold the funds until divided? This is a fact question, and the answer will depend upon the proofs. This issue cannot be determined on a summary motion. * # *
“The court is of the opinion that the motion for summary judgment should be denied.”
Plaintiff filed its motion for summary judgment and defendants answered denying plaintiff’s contention that there was no genuine issue as to any material fact except as to the amount of damages, and stating “that there is a real issue of fact.”
An “agreed statement of facts” was filed stating it was:
“For purposes of plaintiff’s motion for summary judgment, heretofore filed in this matter, the parties by their respective counsel have stipulated and agreed upon the following statement of facts:”.
There followed in the agreed statement of facts recitation in regard to starting action — defendants’ asking for and plaintiff’s furnishing information, and settlement without plaintiff’s knowledge. The statement, however, did not in any way refer to any agreement between plaintiff and defendants that defendants would “hold and secure any judgment that might be recovered against third-party tort-feasors for the joint benefit of plaintiff and defendants until the total respective rights of plaintiff and defendants thereto could be ascertained” as alleged by plaintiff in its declaration.
This agreed statement of facts established that on October 12, 1957, plaintiff paid $10 to one of the third-party tort-feasors and $700 to the other third-party tort-feasor, and secured from them a release of any claim they might have against plaintiff.
The trial court in an opinion refused to pass upon plaintiff’s motion, stating:
“The stipulated facts are silent as to how the payment of the settlement was handled. In the ordinary course of events defendant Quimby and his attorney, Mr. McCargar, would have been named payees of the settlement check. If this is so, and both indorsed the instrument, the court would hold that both defendants held the funds as trustees. Out of these funds would first come the expenses of recovery, including the attorney fee, then the amount paid by plaintiff by way of compensation would be reimbursed with tbe balance accruing to defendant Quimby. There would be personal liability on the part of both defendants for plaintiff’s share. But for the determination of this issue there must be more stipulated facts or a hearing in lieu thereof before the court. The court will await counsel’s action thereon.”
An affidavit subsequently filed stating that both defendants were payees and indorsers of the draft evidently satisfied the court, and on August 30, 1965, an order granting summary judgment was entered jointly and severally against both defendants.
Defendant advised plaintiff of his selection of defendant McCargar as his attorney before starting his action. And plaintiff showed no disagreement with defendant’s choice, or any concern as to whether the attorney was to be paid on a contingent basis or paid in some other way.
The pleadings disclose that defendants denied “there was any constructive trust or any fiduciary obligation” or any agreement to hold any moneys received from third-party tort-feasors for the benefit of plaintiff. Plaintiff’s motion for summary judgment abandoned any such claim.
There was nothing unusual in the way the settlement was concluded, and the trial court recognized this fact stating in an opinion: “In the ordinary course of events defendant Quimby and his attorney, Mr. McCargar, would have been named payees of the settlement check.”
The trial court in the first motion presented for summary judgment stated that the court would have to have proof as to whether there was an agreement between plaintiff and defendant McCargar that the funds would be held in trust for the plaintiff, but the second and final motion for summary judgment was granted solely on the proof that McCargar was named as payee and indorsed the check. Plaintiff claims that the sole proof that defendant MeCargar was indorser and payee was sufficient to justify summary judgment against defendant MeCargar.
It is to be noted that the statute specifically provides for deduction of the expenses of recovery prior to a division of the settlement or judgment figure. The statute further provides a definition of expenses of recovery as follows:
“Expenses of recovery shall be the reasonable expenditures, including attorney fees, incurred in effecting such recovery.”
The statute further provides that the expenses of recovery shall be apportioned by the court between the parties as their interests appear at the time of the recovery.
The summary judgment against defendant attorney MeCargar was erroneously entered and must be reversed.
We reverse the judgment of the Court of Appeals. We affirm the trial court’s judgment against defendant Quimby and reverse the trial court’s judgment against defendant MeCargar.
The cause is remanded for the purpose of entering an order in conformity with this opinion. No costs, neither party prevailing in full.
Dethmers, C. J., and T. M. Kavanagh, Adams, and T. E. Brennan, JJ., concurred with Kelly, J.
Black, J.
(for reversal). I agree generally with Justice Kelly’s view of part 3, section 15 (CLS 1961, §413.15 [Stat Ann 1960 Rev §17.189]), yet am unable to indorse his apparent conclusion that preponderating evidentiary support of plaintiff’s allegation — that defendants agreed to “hold and secure. * * * for the joint benefit of plaintiff and defendants” — is requisite to a decretal judgment of reimbursement in favor of plaintiff as against both defendants. My reasons in that regard will appear presently. But first to the procedural position of the cause at today’s stage.
The parties have stipulated certain facts “For purposes of plaintiff’s motion for summary judgment”'; that only. Hence, there being general agreement that this latest motion for and grant of summary judgment was out of order, it is demonstrably in order to repeat that which unanimously introduced reversal of R. R. Improvement Association v. Thomas (1965), 374 Mich 175, 177, 178 (echoed by the writer upon agreed reversal of Berkaw v. Mayflower Congregational Church (1966), 378 Mich 239, 271, 272):
“On too many occasions in recent years this Court has found it necessary to remand equity cases for a reason known specially to equity’s jurisdiction. See Sternberg v. Baxter, 373 Mich 8, 18; Falkner v. Brookfield, 368 Mich 17, 25; Kent v. Bell, 368 Mich 443, 451; Kenney v. Village of Novi, 367 Mich 75, 76, 77, and Crocker v. Crocker, 362 Mich 6, 8, all of which quote or cite Culy v. Upham, 135 Mich 131 (106 Am St Rep 388). In Culy v. Upham this regularly quoted passage appears (p 135):
“ ‘We do not wish, by our silence, to seem to approve the procedure adopted in this case. If we had disagreed with the trial judge on the legal proposition discussed in this opinion, we could not have made a final disposition of the case. We should have been forced to remand the record for another hearing in the court below. As a general rule, suits at chancery should be so tried in the lower court that, when they are appealed, this Court may finally dispose of the issue raised by the pleadings.’ ”
This appeal exposes anew the arrant evil of Michigan’s 1963 “union” of law and equity. Pomeroy foresaw that evil and acted powerfully to meet it, as we shall presently see. So did this Court in Brown v. Kalamazoo Circuit Judge (1889), 75 Mich 274. It was indeed the announced motive for preparation and submission to the profession of Pomeroy’s great work on equity jurisprudence. See the 1881 preface to that work, appearing in every edition thereof, particularly this portion of the third paragraph :
“As the central conception of this system is the abolition of all external distinctions between actions at law and suits in equity, the union of legal and equitable rights and remedies in one proceeding, and the substitution of many important equitable in place of legal methods, it was confidently supposed that in progress of time the doctrines of equity would obtain a supremacy over those of the law in the administration of justice, and that the entire jurisprudence of a State would gradually become more equitable, more informed with equitable notions. It must be confessed, I think, that the experience of the past 30 years in these States points to a directly contrary result. Every careful observer must admit that in all the States which have adopted the reformed procedure there has been, to a greater or less degree, a weakening, decrease, or disregard of equitable principles in the administration of justice.” (Emphasis supplied by present writer.)
As Pomeroy pointed out in the same preface, Parliament proceeded to guard equity against the quoted tendency by amending the English judicature act of 1873 to include the clause:
“Generally, in all matters in which there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter, the rules of equity shall prevail.” (1 Pomeroy’s Equity Jurisprudence [5th ed, Symons] pp xxiii, xxiv. For the present phrasing of the amendment providing that “the rules of equity shall prevail,” see 18 Halsbury’s Statutes of England [2d ed Burrows, p 481]).
Nevertheless, when Michigan decided to unionize law and equity, neither the legislature nor this Court bothered to provide the protective influence of such a clause, either in the revised judicature act or in the Court Rules of 1963. Now there are no Pomeroys and no Campbells around. Every action brought in our circuit courts, now upon “complaint,” is regarded generally and loosely as a lawsuit wherein the result is effected by a “judgment,” not a “decree” (GCR 1963, 518.1), all to the detriment of equity as all know now bv the unionized experience of 1963-1968.
Here, Circuit Judge Smith only excepted, no judge writing for this case thus far seems to have realized that it is purely equitable in nature. The plaintiff employer, proceeding upon the theory of a constructive trust, charges the essentials and pleads for determination and impressment of an equitable lien upon proceeds received by an employee and Ms attorney when the two effected settlement of a sec tion 15 lawsuit without notice to or knowledge of one beneficially interested in that settlement. Aside from the purely technical and legally erroneous one drawn by them from section 15, the sole answer defendants offer as against such pleading is that they made no promise or agreement to consult with or account to the employer with respect to settlement of the section 15 action and that that employer, having failed to intervene in the section 15 action, is without cause or right as against them. Significant here is paragraph 7 of the stipulation of facts upon which plaintiff’s motion for summary judgment -was submitted to the circuit court:
“7. That on or about December 19, 1963, the defendant Clayton L. Quimby, through his attorney, defendant George L. McCargar, Jr., effected a settlement with the alleged third party tort-feasors for the sum of $25,000. This settlement was effected both without the knowledge or the consent of the plaintiff, and the plaintiff has received no funds therefrom, nor has it participated in or benefited in any other way from the settlement. The settlement agreement provided that, by stipulation, the circuit court action against the alleged third-party tortfeasors would be dismissed, and immediately upon the accomplishment of the settlement, the third party tort-feasor did cause the circuit court action against it to be dismissed, which dismissal was also accomplished without the knowledge or consent of the plaintiff. A true copy of the settlement agreement effected by defendants with the alleged third-party tort-feasors has also prior hereto been admitted into evidence as an exhibit and by this reference is here incorporated.”
Now for the statute and the duty of reimbursement created thereby. Since its effective date the 1952 amendment of section 15 (PA 1952, No 155) has been widely and successfully employed according to its purposeful design, exceedingly more so than detached appellate judges are apt to know. Granting that its separately paragraphed phrasing is somewhat contradictory, the central plan of the section has never been unclear or difficult of application in our trial courts. That central plan was to eliminate the irreversible choice which a compensably injured employee originally was required to make between the right to workmen’s compensation and the right of suit against some third party, to permit prosecution of suit against that third party without jeopardizing the plaintiff employee’s right to receive workmen’s compensation to the fullest extent, and to provide that the employer have reimbursement, on account of workmen’s compensation benefits “paid or payable to date or recovery,” out of any amount recovered from such third party, the “expenses of recovery” having first been deducted.
As held by Judge Smith the reimbursement clause, appearing in the fifth paragraph of section 15, is controlling as against what defendants claim for other language of the section. The clause employs “any” as that all-inclusive adjective which takes in “all,” “of every kind,” and “each one of all.” “Any” seems indeed “to mean just what it says.” See discussion of “any” and the due scope thereof when it is employed in contracts and statutes, Harrington v. Interstate Business Men’s Accident Ass’n (1920), 210 Mich 327, 330, 331; and Gibson v. Agricultural Life Ins. Co. (1937), 282 Mich 282, 288, 289. Now for the clause:
“Any recovery against the third party for damages resulting from personal injuries or death only, after deducting expenses of recovery, shall first reimburse the employer or its workmen’s compensation insurance carrier for any amounts paid or payable under the workmen’s compensation act to date of recovery, and the balance shall forthwith be paid to the employee or his dependents or personal rep resentative and shall he treated as an advance payment hy the employer on account of any future payment of compensation benefits.”
There having been precedent controversy respecting the interpretation of section 15 and the claimed right of the plaintiff employee to settle with the defendant tort-feasor and keep all, the quoted clause prompts gentle question whether it would not have been better — -legally, equitably, morally, and ethically — to warn the employer of intent to settle for the available amount so that the latter, as an alerted intervenor, might proceed to have the controversy settled by the court in the pending section 15 action. But that was not to be and equity, as Judge Smith rightly saw and heeded, does not propose to bless what- these withholders have done.
The Court’s opinion, drafted by Justice Kelly, fairly confirms my view of what the legislature intended when section 15 was conceived and enacted. But there is more to this case than the mere application of a statute. There is the legal as well as equitable duty to speak up when fair dealing calls for more than silence and furtive action (Nowicki v. Podgorski [1960], 359 Mich 18, 32; Sullivan v. Ulrich [1949], 326 Mich 218); also the application of equity’s maxims to one who breaches that duty for his own enrichment and does so at the expense of another. Accordingly, and upon the limited record made thus far, I hold the defendants prima facie responsible as trustees for the due performance of a constructive trust which, by their actions, arose for the plaintiff’s benefit. The allegation of “no promise or agreement,” accepting it veritably, is of no relevance and makes no question of fact. We rejected that kind of a defense, unanimously, in the like case of Kent v. Klein (1958), 352 Mich 652, 656, 657:
“Defendant urges again and again that she made no promise whatever to hold in trust, that nothing was said about a trust, and, as a clincher, that even if she had so orally promised the promise would have been unenforceable under the statute of frauds. Her conclusion is that she keeps the land.
“What is overlooked in all of this is the fact that the constructive trust is not a trust at all, any more than a quasi-contract is a contract. See 4 Scott on the Law of Trusts, § 462.1. Both are remedial devices. The constructive trust, as it was put by Mr. Justice Cardozo, ‘is the formula through which the conscience of equity finds expression. When property has been acquired in such circumstances that the holder of the legal title may not, in good conscience, retain the beneficial interest, equity converts him into a trustee.’ Beatty v. Guggenheim Exploration Co., 225 NY 380, 386 (122 NE 378). It arises by operation of law. (Of., ‘unless by act or operation of law’ in CL 1948, § 566.106 [Stat Ann 1953 Rev § 26.906] quoted in footnote, supra.) That defendant made no promise to hold in trust is utterly irrelevant. The constructive trust is as contemptuous of promises not made as of promises broken. The fact that a thief fleeing with his loot promises nothing avails him nothing. He remains a constructive trustee. Lightfoot v. Davis, 198 NY 261 (91 NE 582, 29 LRA NS 119, 139 Am St Rep 817). Fraud in the inception we do not require, nor deceit, nor chicanery in any of its varied guises, for it is not necessary that property be wrongfully acquired. It is enough that it be unconscionably withheld. McCreary v. Shields, 333 Mich 290; Rudenberg v. Clark, 72 F Supp 381. Nor is it necessary, to move the chancellor’s conscience, that plaintiffs have suffered a loss, although in most eases there is both a loss to the plaintiffs and a like gain to the defendant. United States v. Carter, 217 US 286 (30 S Ct 515, 54 L ed 769); Olwell v. Nye & Nissen Co., 26 Wash 2d 282 (173 P2d 652, 169 ALR 139); Carey v. Safe Deposit & Trust Co., 168 Md 501 (178 A 242).”
To summarize:
So far as concerns the defendant McCargar, a lawyer, credit him with a smidgen of knowledge that the original right of this plaintiff employer to proceed against the sued tort-feasor had expired by limitation when he, McCargar, having requested and received the cooperation of that employer to a commonly desired end, went ahead with this business of secretly procuring and retaining the fruits of a section 15 settlement. That being agreed fact, equity imputes to him the duty of timely disclosure to the cooperating employer of intent to settle separately, no matter his conviction that section 15 authorized what he did. And, having failed to perform such duty, equity charges him with having performed it with beneficial result. Such is this Court’s obligation by force of equity’s first and ninth maxims ; that she regards as done what should have been done, and imputes resolute intent to fulfill an obligation.
That defendant McCargar should be paid, as and for “expenses of recovery,” goes without saying. That he should on that account escape whatever responsibility equity attaches to his shrouded action is something else. For the present nothing further need be said beyond comment that the parties have stipulated only to such facts as are required for solution of the question of interpretation of said section 15. The equities and amounts payable, if any, have not as yet been worked out or agreed to; hence a full hearing of the case should now be ordered.
I would reverse the judgment of Division 3 and direct remand for such further proceedings as may be consistent with foregoing views. Plaintiff should have costs of both appellate courts. Costs in circuit should abide the final result.
Smith v. School District No. 6, Fractional, Amber Township (1928), 241 Mich 366; Village of Durand v. Board, of Supervisors of Shiawassee County (1903), 132 Mich 448.
Joslin v. Campbell, Wyant & Cannon Foundry Co. (1960), 359 Mich. 420; Taylor v. State (1960), 360 Mich 146.
Read Joiner and Geddes, “The Union of Law and Equity,” 55 Mich Law Rev 1059 (1957), providing all of the alleged reasons for union as then advocated. Those reasons were supported (p 1060) by sharp criticism of Brown v. Kalamazoo Circuit Judge (1889), 75 Mich 274, the opinion of which, written by Justice Campbell, unanimously upheld equity’s constitutional status as a part of the judicial power. See Justice Campbell’s discussion of the constitutional question (pp 278-285), the pith of which is concentrated around this yet unchallenged (in judicial proceedings distinguished from professorial theses) declaration of constitutional right: “The right to have equity controversies dealt with by equitable methods is as sacred as the right of trial by jury.” 75 Mich 274, 284.
The Brown Case is worth reading- again, now that our trial judges and trial attorneys have been compelled to work under “union.” “Union” has turned out to be a misguided marriage, the spawn of which has been more litigatory expense, more delay and certainly more confusion of judicial responsibility.
Iii the phrasing of the old song concerning two cats, the Justices went round and around on this in Spoon-Shacket Company, Inc., v. County of Oakland (1959), 356 Mich 151. On that occasion the five Democratic nominees to the Court stood with Pomeroy, and the three Republican nominees stood with Blaekstone’s dogma: “By equity we mean nothing but the sound interpretation of the law.”
It was stipulated below:
“5. That in pursuit of the action against the alleged third party tort-feasors, the defendants requested and sought from the plaintiff copies of investigation reports, medical reports, and log reports so as to assist them in the preparation and prosecution of their case. The plaintiff provided the defendants with the materials sought.” | [
-26,
6,
-37,
34,
16,
36,
22,
-23,
8,
-14,
-46,
20,
41,
30,
-18,
-23,
0,
0,
-21,
-5,
-22,
4,
35,
1,
0,
-40,
51,
-24,
37,
16,
-4,
-11,
-25,
26,
-83,
-7,
19,
19,
-31,
-16,
38,
25,
24,
-18,
15,
7,
-18,
9,
23,
-28,
37,
5,
-39,
1,
41,
-32,
14,
-18,
-26,
-10,
-50,
8,
11,
29,
14,
27,
-15,
3,
10,
22,
-7,
37,
31,
1,
7,
-45,
-52,
5,
10,
-9,
8,
-22,
32,
-32,
2,
19,
-28,
-7,
-17,
-1,
-50,
16,
4,
29,
2,
-14,
12,
35,
15,
22,
24,
17,
21,
-26,
3,
10,
-4,
-71,
24,
82,
-1,
58,
-5,
-15,
-24,
11,
1,
-74,
-15,
30,
36,
-41,
46,
25,
15,
13,
-37,
29,
25,
39,
48,
2,
-27,
-71,
-8,
16,
-22,
-15,
21,
-16,
7,
-94,
-50,
-60,
-9,
53,
-60,
-1,
9,
-32,
7,
9,
-29,
-4,
0,
-5,
13,
-16,
34,
4,
28,
-9,
-8,
13,
9,
-44,
12,
-5,
0,
-7,
17,
-38,
7,
-30,
10,
39,
43,
-26,
-45,
44,
14,
9,
-3,
71,
17,
-24,
-20,
10,
5,
14,
17,
-51,
-24,
46,
8,
1,
18,
3,
-5,
19,
25,
-74,
3,
-2,
3,
15,
58,
20,
-9,
9,
-32,
-47,
-18,
-69,
-42,
-13,
81,
14,
-17,
-42,
-2,
-2,
24,
-31,
-57,
-38,
-44,
-1,
43,
13,
-4,
-25,
-23,
57,
-1,
-10,
-30,
-4,
59,
5,
41,
-22,
-14,
-19,
25,
-14,
-19,
14,
-24,
11,
0,
-50,
26,
0,
-5,
-60,
-32,
33,
-38,
-62,
-56,
70,
-45,
-7,
77,
-37,
2,
48,
-17,
30,
-42,
6,
69,
17,
2,
-91,
-16,
53,
-16,
46,
-14,
50,
27,
-23,
-74,
-19,
8,
-2,
0,
32,
24,
-8,
35,
-9,
41,
73,
5,
3,
21,
43,
-26,
0,
18,
22,
64,
-40,
-21,
-20,
-2,
-36,
-36,
9,
-9,
-23,
8,
26,
-68,
17,
1,
-73,
26,
-1,
38,
0,
-14,
-95,
15,
17,
-17,
-12,
-6,
-49,
-23,
0,
-3,
-61,
0,
-1,
-10,
-3,
48,
55,
65,
-39,
-38,
38,
15,
-26,
30,
33,
2,
-72,
-44,
14,
19,
-32,
2,
2,
-35,
-17,
50,
-1,
-15,
-108,
-13,
34,
-25,
-2,
-6,
85,
6,
0,
-14,
-46,
-84,
-13,
2,
12,
-89,
51,
-10,
-30,
34,
-4,
-15,
-13,
-40,
-10,
-22,
-8,
-38,
-26,
43,
19,
5,
32,
-36,
-8,
-31,
8,
16,
31,
9,
-15,
20,
16,
36,
-31,
-8,
50,
-17,
-28,
19,
23,
-6,
-49,
72,
-22,
32,
-13,
65,
-14,
-50,
-63,
-13,
-25,
55,
4,
-18,
-2,
16,
-4,
3,
-68,
59,
21,
-52,
-3,
-29,
0,
-32,
3,
-2,
-14,
-12,
24,
-46,
-2,
32,
1,
-3,
-6,
46,
14,
1,
27,
-3,
-59,
22,
-14,
5,
-31,
-6,
25,
53,
-53,
23,
-9,
-16,
35,
22,
4,
-3,
16,
-29,
3,
5,
35,
76,
10,
2,
-9,
8,
-1,
-33,
-34,
15,
-23,
12,
-35,
37,
-27,
43,
1,
-4,
-20,
-43,
19,
-62,
42,
-31,
14,
46,
23,
18,
-3,
-4,
-47,
11,
12,
-53,
3,
66,
18,
21,
15,
17,
5,
-3,
54,
39,
-45,
-78,
-9,
-27,
-7,
-40,
24,
22,
-33,
15,
-29,
-3,
-47,
-9,
40,
-1,
24,
-2,
-35,
21,
55,
-4,
33,
25,
1,
-4,
-2,
56,
14,
-49,
10,
40,
11,
-11,
33,
22,
-37,
52,
-20,
0,
49,
47,
22,
-13,
12,
3,
-3,
22,
50,
-39,
43,
1,
39,
-1,
13,
-10,
4,
30,
-50,
-37,
-14,
-6,
-50,
-46,
-3,
21,
-14,
12,
-25,
-6,
11,
-43,
18,
25,
-31,
-7,
-20,
28,
23,
5,
-26,
-59,
-62,
8,
18,
12,
-2,
49,
24,
48,
36,
-38,
-14,
10,
-88,
-6,
-26,
33,
-20,
40,
15,
18,
-28,
3,
-3,
-4,
-5,
-24,
-28,
17,
-12,
-24,
-9,
8,
9,
-22,
45,
0,
46,
52,
22,
23,
37,
-22,
-20,
26,
4,
-17,
-72,
-22,
22,
-15,
3,
-13,
-32,
35,
-7,
-9,
-30,
36,
-15,
16,
-8,
-34,
53,
-2,
-37,
-6,
27,
82,
-37,
58,
47,
61,
37,
-36,
7,
-50,
36,
-8,
-65,
21,
-3,
-32,
23,
-23,
-4,
23,
-30,
-27,
-8,
-55,
-50,
-5,
26,
40,
33,
41,
29,
-41,
-29,
14,
-28,
-10,
12,
15,
-9,
15,
-19,
-36,
27,
1,
-36,
24,
53,
-21,
-15,
-24,
-26,
-19,
-50,
26,
-30,
32,
20,
15,
1,
-25,
2,
41,
-9,
-13,
58,
-18,
-5,
61,
-16,
-22,
-23,
37,
11,
56,
62,
-37,
-17,
-14,
38,
22,
41,
-41,
12,
34,
0,
-12,
-15,
-9,
-13,
-52,
-8,
-5,
19,
-37,
-20,
9,
-14,
-17,
-27,
9,
-48,
-27,
43,
15,
-3,
31,
14,
41,
-29,
-23,
-26,
41,
8,
39,
19,
0,
-2,
25,
-85,
25,
10,
-13,
5,
15,
-26,
17,
-3,
-48,
14,
-1,
12,
-27,
-32,
14,
-15,
22,
-9,
39,
39,
16,
-27,
-11,
-71,
-21,
34,
-26,
62,
-10,
54,
3,
-33,
-64,
45,
-31,
-31,
42,
-27,
41,
-66,
-13,
-20,
-15,
-26,
-80,
31,
19,
29,
1,
-28,
-54,
-27,
80,
-27,
-31,
2,
74,
0,
-77,
23,
-9,
6,
-6,
-46,
39,
27,
-25,
-15,
-17,
-73,
-2,
-12,
-11,
-3,
-39,
27,
18,
-47,
-12,
2,
12,
3,
-18,
51,
-37,
-42,
-1,
27,
17,
-10,
1,
-40,
-78,
71,
-18,
8,
-37,
52,
-1,
-26,
-75,
73,
13,
40,
-7,
19,
13,
-57,
-11,
8,
-4,
-9,
8,
29,
-9,
41,
26,
11,
12,
-11,
-5,
6,
11,
-7,
45,
16,
14,
9,
-17,
-33,
-3,
39,
-36,
-11,
-11,
-67,
-2,
2,
81,
33,
-37,
5,
-34,
-38,
25,
42,
3,
11,
38,
-36,
-78,
-15,
-45,
13,
-25,
-13,
-39,
5,
1,
21,
32,
58,
-5,
-1,
16,
12,
11,
-79,
38,
27,
-12,
4,
23,
18,
-3,
5,
71,
-6,
28,
-12,
-17,
-11,
37,
-33,
-9,
-16,
-6,
-28,
-15,
-16,
-66,
26,
-35,
-46,
-14,
54,
1,
-13,
-5,
-31,
-29,
-17,
-26,
8,
21,
36,
11,
-66,
-17,
-5,
48,
14,
13,
36,
13,
-20,
-22,
34,
31,
73,
58,
-34,
-32,
58,
51,
-3,
-5,
72,
-53,
-6,
-23,
-9,
20,
39,
-13,
16
] |
Per Curiam.
The reviewed issue was discussed and decided last by a panel of the Court of Appeals. Corporation & Securities Commission v. Michigan Consolidated Gas Company (1967), 7 Mich App 552. It has been before this Court in variantly sulphurous phases since 1960 (Detroit Edison Company v. Corporation & Securities Commission [1960], 361 Mich 150; Detroit Edison Company v. State [1960], 361 Mich 290) and requires no expatiation. For a recent summary of details, see Corporation & Securities Commission v. American Motors Corporation (Appeal re Detroit Edison Company) (1967), 379 Mich 531, 538-550.
In 1962 a majority of participating Justices affirmed the judgment of the court of claims in Detroit Edison Company v. Corporation & Securities Commission (1962), 367 Mich 104, 106. The essence of that court’s judgment was written by then Circuit Judge Timothy C. Quinn, now a distinguished member of the Court of Appeals. It follows (367 Mich 104, 107):
“Now, first of all, with respect to issue (a) under paragraph 4 of the pretrial statement, which is stated as follows:
“ ‘Is the corporation and securities commission bound by the accounting procedures set up by the Michigan public service commission with respect to utilities in determining the annual franchise fee?’
“The public service commission is a body set up by statute to control and regulate public utilities with an idea of protecting the stockholders and the utilities as well as the consumer public. They set the rates, and so forth. By statute and regulation, which is R 460.600 in the Administrative Code [1954], they prescribe in great detail the system of accounts that the utilities like the Detroit Edison must keep, and exhibits E and F in this record indicate 2 rulings by the public service commission that an item similar to the item involved in this litigation shall not be carried on the books of the company as surplus, and to this court it is incongruous that that order of the public service commission would not be binding on another branch of the State for another purpose, and it is the opinion of this court that the 2 orders, shown in exhibits E and F, of the public service commission are binding on the corporation and securities commission so far as the classification of the item involved in this litigation is concerned.”
Since this Court’s 1962 judgment of affirmance was entered, valiant efforts have been made to persuade the public service commission that it should alter or rescind public utility commission accounting orders such as Judge Quinn considered and held controlling. (Examples appear as appendices “A” and “B”, 367 Mich 104, 111-115.) The present defendant-appellee is bound by like orders. Details of such efforts were considered in the 1962 Edison Case (367 Mich 104, 110), and again in the 1967 Edison Case (379 Mich 531, 548).
All such efforts were unavailing. They were designed of course to render viable the dissenting opinion of Justice Edwards in the first Edison Case (361 Mich 150, 158-166), holding that the attorney general’s submitted view of the term “surplus” (refer to CDS 1956, § 450.304 [Stat Ann 1959 Cum Supp § 21.205]) was right and that the same should be held controlling as against the mentioned orders of the public service commission.
It makes our story short, and better told, to report that a majority of the Justices find themselves in accord with Judge Quinn’s reasoning as set forth in the 1962 Edison Case. It is adopted accordingly with the following observations.
The first of these public service commission orders which was brought to attention here dates back to 1951. The commission, although continuously pressured so to do, has since refused to modify or vacate that order and like ensuing orders. The legislature, too, has refused in the interval to modify or otherwise restrict the commission’s broad powers of superintendence of the public utility corporations of Michigan. That body has refused also to amend said section 450.304 so that “surplus,” as defined therein, be applied according to that which the corporation and securities commission and revenue department have advocated. And if it be conceded (arguendo only of course) that section 450.304 has been ambiguously open to the construction and application contended for by these bureaus, it is passing strange that they, aided by the legal department of the State, have not been able to sell legislation implementing what they have tried to accomplish by other means, such as the repeated denial of a corporate taxpayer’s right of “prompt” redetermination (see 361 Mich 290, 294-302; 379 Mich 531, 538-550) and years of unsuccessful litigation against that taxpayer and other similarly situated corporations.
For the most recent evidence that Judge Quinn must have arrived at correct judgment, both in the Edison Case (367 Mich 104) and the McLouth Case (372 Mich 76), consider legislative turndown of the treasury department’s latest effort to have section 450.304 amended to comport with Justice Edwards’ said view. Refer to the third reading and passage by the House of HB 2832. That bill, by amendment, included the significant words “reserves for deferred federal income taxes arising from depreciation and amortization are not deductible in determining ‘surplus’ as used in this act.” (House Journal, May 8-9, 1967.) The bill including the quoted words went to the Senate taxation committee. There it remained until end of the current legislative session where, as the saying goes, it died.
The foregoing is fair proof that the construction placed on each of the involved statutes by Judge Quinn (that was back in 1961) has not met with legislative disapproval, or even legislative concern over the impact of his reasoning upon the coffers of Michigan’s treasury. It points up what was said in W. H. Atkinson Co. v. State Board of Tax Administration (1941), 299 Mich 315, 319 (successful action to enjoin collection of sales tax):
“Opportunity to have the statute amended, if desired, has been afforded by seven years’ time, and there has been none with respect to the issues at bar.”
The judgment of the panel of the Court of Appeals is affirmed. Costs of all courts to the defendant-appellee.
Dethmers, C. J., and Black, O’Hara, and T. E. Brennan, JJ., concurred.
“These orders likewise became final without appeal. The accounting and rate-making findings made in the Detroit Edison and Michigan Consolidated proceedings have been followed by this commission in all subsequent rate eases including complete consideration of the subject as recent as May, 1961. [Here follow 5 citations.] Erom the foregoing, it is clear that all accounting and rate-making aspects of a utility’s election to use accelerated depreciation have been fully raised, argued, considered, and decided a considerable length of time prior to the commencement of the instant investigation. The commission in all its decisions has consistently followed the same accounting and rate-making treatment of this matter. The record shows that numerous managerial decisions and financial commitments were based on such findings and orders,” 19 PUR3d 7.
The bill having been introduced in 1967 required no new introduction this year. See Const 1963, art 4, § 13. | [
-2,
-14,
48,
15,
-5,
15,
33,
-28,
20,
-5,
26,
-10,
28,
18,
-5,
-8,
23,
18,
-38,
26,
9,
-14,
6,
24,
-45,
34,
24,
31,
17,
24,
-31,
-36,
6,
9,
-12,
-9,
-39,
16,
6,
-25,
5,
28,
21,
-18,
-43,
-25,
25,
-17,
-1,
-43,
0,
58,
0,
-12,
-14,
-22,
-18,
13,
-24,
19,
-26,
-38,
14,
39,
21,
14,
-2,
27,
69,
33,
-2,
20,
5,
12,
55,
-4,
-14,
3,
-18,
-37,
-34,
-8,
-10,
-17,
14,
26,
-19,
8,
-20,
-44,
45,
6,
-29,
-51,
21,
15,
35,
-56,
9,
29,
24,
-24,
-4,
33,
-5,
-12,
3,
-13,
-29,
-18,
-31,
-40,
-64,
-75,
-50,
4,
-39,
-2,
8,
2,
-10,
3,
-20,
21,
-17,
57,
10,
-15,
-49,
40,
-27,
56,
-4,
29,
31,
44,
52,
-26,
7,
12,
-8,
6,
46,
-27,
14,
7,
22,
-21,
43,
-8,
48,
9,
57,
18,
-38,
-2,
-52,
-14,
40,
-19,
-4,
-13,
-16,
17,
-53,
30,
3,
-29,
-19,
47,
-15,
-28,
0,
-29,
-21,
-18,
-40,
35,
-48,
-27,
-31,
-3,
4,
13,
7,
11,
-15,
-12,
17,
-92,
19,
8,
29,
31,
-48,
3,
66,
86,
6,
40,
-17,
-15,
-25,
2,
-25,
-30,
3,
-20,
-4,
-14,
-12,
43,
-15,
-26,
-42,
-8,
-51,
-63,
39,
-19,
38,
8,
14,
10,
21,
-17,
11,
22,
-36,
-17,
48,
23,
30,
-26,
-28,
51,
39,
8,
44,
-49,
22,
1,
16,
-15,
-3,
-16,
-27,
-15,
13,
40,
9,
-65,
-13,
43,
-34,
-45,
-66,
32,
22,
-2,
2,
15,
-35,
21,
-6,
-19,
34,
-21,
-2,
-21,
-2,
10,
-30,
-15,
20,
7,
10,
-83,
3,
-34,
-40,
3,
-4,
18,
-16,
3,
-15,
9,
-36,
23,
42,
33,
33,
16,
64,
-17,
36,
-4,
-27,
-39,
-23,
16,
51,
44,
26,
49,
-86,
27,
-11,
-26,
1,
20,
1,
-15,
21,
-24,
-3,
2,
97,
14,
21,
10,
18,
27,
-24,
-2,
54,
-20,
28,
-35,
-28,
28,
17,
-3,
21,
11,
23,
-1,
-4,
15,
-6,
-6,
21,
-19,
6,
-13,
-1,
-35,
-22,
-36,
-59,
40,
-14,
33,
27,
27,
29,
-16,
-87,
39,
-9,
30,
32,
20,
-29,
13,
-45,
-25,
11,
58,
11,
37,
-59,
0,
-7,
13,
-5,
-9,
-33,
-12,
18,
-44,
31,
-37,
29,
-14,
-1,
62,
-22,
-36,
-19,
-44,
-43,
20,
-51,
-14,
2,
4,
6,
-21,
31,
9,
-46,
13,
21,
-15,
13,
7,
32,
51,
-18,
21,
-7,
-47,
-31,
29,
20,
-3,
47,
-41,
8,
3,
-26,
8,
7,
-27,
-13,
31,
-42,
39,
-28,
-9,
2,
-51,
-35,
28,
-19,
-59,
16,
-24,
-23,
54,
-26,
3,
0,
-1,
15,
-31,
36,
6,
36,
32,
-21,
0,
-31,
68,
0,
-15,
-26,
-2,
-28,
-4,
43,
-29,
-4,
-9,
8,
20,
86,
0,
-23,
8,
-56,
43,
6,
-33,
-35,
-1,
1,
-5,
-2,
48,
-20,
-31,
-72,
19,
-23,
2,
24,
-2,
0,
-17,
0,
-43,
26,
-13,
-25,
-7,
9,
-12,
21,
-8,
38,
7,
-9,
13,
3,
-23,
-39,
3,
23,
12,
77,
56,
26,
45,
17,
22,
29,
48,
-61,
-16,
-67,
-8,
-26,
37,
2,
-30,
63,
-60,
-11,
18,
14,
-17,
23,
26,
15,
11,
5,
-44,
10,
42,
3,
9,
45,
-23,
-22,
-13,
4,
-13,
-54,
-12,
-22,
2,
4,
-42,
12,
40,
0,
14,
-74,
34,
32,
-21,
-6,
1,
-32,
36,
21,
-27,
-7,
-13,
39,
29,
34,
-28,
55,
-4,
-18,
-22,
34,
47,
-10,
-9,
11,
-24,
17,
-30,
9,
-48,
26,
-41,
2,
-8,
10,
58,
20,
-17,
50,
4,
-22,
23,
-35,
-6,
-39,
26,
7,
38,
3,
-23,
44,
-5,
13,
-48,
-35,
45,
4,
10,
25,
-24,
39,
-1,
50,
-9,
27,
-51,
23,
-1,
-8,
60,
3,
-26,
1,
-7,
-20,
2,
26,
-18,
-15,
-11,
-20,
-23,
19,
-33,
79,
-49,
-51,
61,
33,
39,
4,
29,
-23,
-13,
-14,
42,
-16,
-4,
43,
-33,
3,
-5,
5,
14,
-5,
18,
1,
-22,
81,
-54,
1,
8,
9,
-33,
21,
-15,
11,
-24,
37,
10,
-46,
43,
-59,
-19,
12,
-33,
17,
10,
4,
-50,
-3,
-12,
-59,
-15,
-41,
-29,
4,
46,
21,
-21,
-8,
3,
1,
41,
-47,
2,
-35,
28,
6,
23,
28,
-55,
-8,
48,
-11,
32,
-15,
17,
-32,
-34,
-41,
-29,
0,
15,
1,
22,
-13,
-36,
-67,
18,
-35,
-16,
9,
8,
34,
21,
19,
-59,
-40,
9,
21,
54,
-4,
-15,
-69,
1,
1,
46,
8,
16,
19,
-14,
23,
23,
24,
0,
-23,
25,
0,
-40,
-36,
-5,
-24,
61,
0,
15,
7,
13,
-8,
-29,
-28,
-35,
-38,
11,
16,
9,
9,
-69,
23,
15,
-13,
-9,
41,
17,
-38,
-64,
6,
7,
-42,
9,
-23,
-15,
43,
-22,
0,
17,
6,
6,
5,
-23,
-30,
41,
20,
-60,
-26,
-3,
-43,
0,
17,
11,
-20,
-20,
-21,
-12,
35,
-15,
-44,
-8,
-30,
-44,
0,
-3,
13,
-8,
-32,
16,
8,
31,
1,
81,
75,
19,
-79,
44,
-5,
17,
20,
-22,
55,
-10,
0,
-50,
-31,
7,
-31,
16,
-50,
15,
-40,
34,
-38,
24,
-17,
47,
63,
-11,
-16,
14,
63,
8,
32,
54,
-19,
4,
54,
-30,
-52,
4,
-4,
0,
-7,
41,
-14,
-57,
-15,
-26,
2,
0,
-17,
-50,
-20,
-24,
31,
-51,
44,
-13,
36,
3,
-27,
44,
70,
-36,
-23,
-16,
17,
-26,
31,
-25,
15,
0,
-36,
1,
-34,
10,
15,
78,
22,
-40,
-37,
46,
16,
9,
14,
-11,
8,
49,
-2,
-15,
-1,
-15,
30,
23,
-31,
-22,
-44,
-2,
5,
1,
10,
18,
-23,
-6,
-22,
12,
-12,
-32,
-11,
-8,
32,
16,
-3,
-37,
7,
28,
-32,
-28,
-17,
-21,
-11,
-57,
-5,
-54,
27,
8,
-38,
-26,
-21,
14,
-24,
-41,
-24,
10,
42,
-26,
25,
-4,
20,
-37,
-11,
-23,
14,
46,
-3,
-29,
-11,
-29,
-1,
-38,
-5,
13,
-5,
-11,
-18,
26,
-20,
-15,
-45,
-32,
-10,
-6,
55,
0,
32,
-10,
-9,
-35,
13,
30,
52,
-2,
56,
7,
-32,
-4,
-42,
-18,
32,
-14,
0,
42,
-1,
-45,
-15,
105,
29,
9,
3,
48,
-8,
-19,
26,
6,
-27,
-26
] |
O’Hara, J.
(dissenting). This is an appeal on leave granted to the people of the State of Michigan from an order of the Court of Appeals which reversed appellee’s conviction in the circuit court. He had been charged with the operation of a lottery.
The first question we face is what is the right of appeal by the State in a criminal case from an adverse decision by the Court of Appeals?
There has been no legislative action dealing with the question since the creation of that Court. There is a statute defining the right of appeal by the people. It has been in force for many years and has been the subject of judicial construction.
The statute reads :
“Sec. 12. A writ of error may be taken by and on behalf of the people of the state of Michigan from any court of record in said state direct to the supreme court thereof, in all criminal cases, in the following instances, to wit:
“(a) From a decision or judgment quashing or setting aside any indictment or information, or any count thereof, where such decision or judgment is based upon the invalidity • or construction of the statute upon which such indictment or information is founded;
“(b) From a decision arresting a judgment of conviction or directing a judgment of acquittal for insufficiency of the indictment, where such decision is based upon the invalidity or construction of the stat ute upon which, such indictment or information is founded;
“(g) From the decision or judgment sustaining a special plea in bar, when the defendant has not been put in jeopardy, or from any other order of the court relative to admission of evidence or proceedings had or made at any time before the defendant is put in jeopardy.”
"We feel obligated to point out that as an expression of legislative policy we accord the statute great weight. However, to the extent that it purports to limit our appellate jurisdiction, it is constitutionally infirm. Our appellate jurisdiction is constitutional. It can neither be enlarged nor restricted by legislative action. The Constitution provides:
“The Supreme Court shall have * * * power to issue * * * prerogative and remedial writs; and appellate jurisdiction as provided by rules of the supreme court.” (Emphasis supplied.)
We construed this article in Board of Educatio~i of Grand Rapids v. State Tax Commission (1939), 291 Mich 50. While equally divided in that case as to the powers of the defendant-commission, the Court was unanimous in the holding (p 54):
“The power of this court to issue original writs of certiorari is vested in the Constitution and cannot be divested by legislative action.”
In the foregoing quotation, the Court was speaking for four Justices through Mr. Justice Wiest, but for the remainder of the Court, Justice North wrote (p 62) :
“For the reason pointed out by Mr. Justice Wiest, the provision in section 17 which purports to bar all judicial review of the proceedings before the State tax commission is void.”
So here we are not bound in our review of the disposition of the case by the Court of Appeals, even though the appeal is by the people from a decision adverse to the State.
However, the limitation upon appeals by the State has been recognized by this Court for many years. Obviously, the case precedent does not involve appeal from the Court of Appeals to this Court. Rather the case arose on appeal from the circuit court to this Court, after the circuit court had in legal effect acted as an intermediate court of appeal.
In People v. Woodward (1921), 215 Mich 267, p 269:
“It is obvious from the provisions of the act that the legislature contemplated the issuance of a writ of error in behalf of the people only when the indictment was attacked upon the ground of the invalidity or construction of the statute upon which the indictment was based. In the present case the indictment was not attacked and the validity of the statute was in no way questioned. The ground upon which the judgment of conviction was attacked was the fact that the conviction was brought about by the evidence illegally obtained. It was shown without question that the officers disobeyed the plain provisions of the statute in obtaining the evidence. Without this illegal evidence there was not sufficient proof to sustain the indictment. By reason of this, we think defendant’s point is well taken; that we have no jurisdiction to consider the assignments.
“The writ of error will be dismissed.”
People v. Ballard (1922), 220 Mich 500, followed Woodward, supra:
“Defendant was informed against for unlawfully having in his possession certain keys, locks, wire cutters, nippers and other implements designed for forcing and breaking open dwelling houses. After pleading not guilty, the trial court, on petition therefor, made an order for the return to him of the articles listed in the information, for the reason that possession of them had been obtained by a search of his residence without a search warrant. The prosecuting attorney seeks to review such order by writ of error.
“PA 1917, No 159, provides for the issuance of a writ of error by and on behalf of the people of the State to review the proceedings in criminal trials in certain cases. The first two subsections permit such review when the information is quashed, or judgment arrested or directed, based ‘upon the invalidity or construction of the statute upon which such indictment or information is founded,’ and the third—■
“ ‘Prom the decision or judgment sustaining a special plea in bar, when the defendant has not been put in jeopardy.’
“The motion here made was clearly not a special plea in bar. The order entered in no way prevented the prosecuting attorney from proceeding with his proofs. While it deprived him of the right to use certain evidence because unlawfully obtained, it clearly presents no question which we can review on writ of error under this statute.
“The writ is dismissed.”
The holdings were also followed and approved in People v. Rau (1922), 220 Mich 502, 503:
“Neither the information, statute upon which it is based or regularity of the essential steps directly leading up to the trial were attacked in this motion. The order granting it, here sought to be reviewed, only indirectly involved the availability of certain testimony the prosecution desired to introduce upon the trial. Its only bearing upon the progress and trial of the case was in effect an adverse early ruling upon the admission of testimony the prosecution relied on and proposed to introduce. We are of opinion, as said in People v. Ballard, 220 Mich 500, that the motion upon which the order is based ‘was clearly not a special plea in bar’ under subdivision (c), section 1, of the statute upon which the prosecution relies.
“Writ dismissed.”
We find no conflict between our holding here and the cited cases. It is to be noted that the Court carefully specified in each case that the people relied on the statute. The appeal herein was addressed to our general constitutional authority in the nature of an application for leave to appeal.
In view of the settled precedent of long standing, and the legislative expression of policy in the statute, we are not disposed to invoke our plenary constitutional appellate powers in order to allow this appeal to go to final decision in this Court. In this case the appellee raised, briefed, and argued the question of our jurisdiction to entertain the appeal. We answer. We have jurisdiction to review any decision of the Court of Appeals. We do not always exercise this jurisdiction in a criminal case where the decision of the Court of Appeals is adverse to the State.
We would not be understood by this decision to approve the language of the Court of Appeals as to the issue on the merits. We do not necessarily accept the interpretation accorded by that Court in our opinion in ACF Wrigley Stores, Inc., v. Wayne Prosecuting Attorney (1960), 359 Mich 215.
We also quote with approval the following excerpt from an opinion of the Attorney General. The opinion was issued pursuant to a request of a member of the legislature. In it the attorney general made the following recommendation in which we join:
“I would therefore recommend that appropriate legislation be enacted clarifying the definition of the term ‘lottery’ in a manner which would permit prosecution for institution of business promotional schemes if such is the desire of the legislature.” (Emphasis supplied.) OAG No. 4562, March 22, 1967, p 35.
We have added our emphasis to make clear that we take no position as to the substantive desirability or nondesirability of such legislation. It is the function of the courts, including this Court under our division of power to interpret statute law, not to make it. We do find the present state of our law unclear by reason of lack of precise legislative definition of “lottery.” We trust our coequal branch will speak out with clarity in relation thereto.
The order granting the application for leave to appeal should be vacated.
T. E. Brennan, J., concurred with O’Hara, J.
Adams, J.
I agree with Justice O’Hara that by virtue of article 6, § 4, Constitution of 1963, the Supreme Court has appellate jurisdiction in criminal cases. Under our present Court Rules (GCR 1963), jurisdiction may be exercised in a given case upon grant of leave whether the decision of a lower court be in favor of or adverse to the State.
I disagree with Justice O’Hara as to the proposed disposition of this case for the reason that the Court of Appeals erred in reversing the trial court. For the facts in this case, see People v. Brundage (1967), 7 Mich App 364. The trial judge correctly charged the jury as to the element of consideration in connection with a lottery. This Court stretched almost to the breaking point a permissible finding of absence of consideration by its approval of such a finding by the trial court upon the facts in ACF Wrigley Stores, Inc., v. Wayne Prosecuting Attorney (1960), 359 Mich 215. Wrigley distinguished earlier decisions of this Court upon the basis that “each of these cases required the participants’ presence, either in the theater or in the immediate vicinity” (p 223).
The acts required in this case, including presence of a participant in the store twice weekly, were ample to provide the element of consideration. A participant was required (a) to go to the store, sign up, receive a weekly qualification card and each week visit the store and have the card punched if he wished to participate in that week’s drawing; (b) to have his weekly qualification card punched a different day from the day of the drawing; (c) to be present on the day of the drawing; (d) to use the registration and weekly qualification card printed and furnished by the store. (He could not make up or prepare his own.)
I would reverse the Court of Appeals and affirm the trial court.
Dethmers, C. J., and T. M. Kavanagh, J., concurred with Adams, J.
Kelly and Black, JJ., took no part in the decision of this case.
We have on several occasions granted leave to appeal to the people where conflicts or misinterpretations in decisions in criminal cases have occurred. See, for example, People v. Dunn (1968), 380 Mich 693; People v. Hobdy (1968), 380 Mich 686; People v. Winegar (1968), 380 Mich 719.
CL 1948, § 770.12 (Stat Ann 1954 Rev § 28.1109),
Const of 1963, art 6, § 4.
Const 1908, art 7, § 4.—Reporter.
PA 1933, No 62, §17, as amended by PA 1934 (1st Ex Sess), No 30 (CL 1948, § 211.217 [Stat Ann 1960 Rev § 7.77]).—Reporter.
CLS 1922, §§ 15842(1)-15842(3).—Reporter.
See Const 1963, art 3, § 2.-—Reporter.
See 7 Mich App 364, 370.—Reporter. | [
10,
22,
15,
-43,
-14,
22,
23,
7,
-39,
43,
15,
-16,
-19,
-29,
31,
-49,
14,
19,
3,
73,
-29,
-12,
-3,
29,
-26,
-81,
56,
33,
-18,
-34,
-18,
-58,
15,
-2,
15,
7,
27,
-16,
13,
22,
-34,
9,
-1,
-14,
-53,
3,
24,
-25,
32,
-12,
-11,
8,
-46,
19,
31,
24,
22,
-11,
-8,
36,
-63,
40,
33,
-20,
32,
4,
9,
-16,
-21,
-50,
-15,
37,
-44,
-1,
-2,
0,
12,
23,
-18,
45,
-14,
-4,
12,
-43,
16,
7,
32,
-11,
-32,
-12,
-13,
-44,
-35,
-18,
28,
-7,
40,
-56,
35,
-39,
-9,
49,
30,
13,
-11,
5,
1,
0,
36,
-37,
23,
-11,
-15,
-71,
-27,
5,
-41,
15,
-44,
-34,
1,
36,
12,
73,
29,
7,
23,
-30,
-20,
1,
24,
32,
0,
-6,
36,
59,
-26,
-21,
44,
-26,
22,
10,
59,
-43,
11,
-40,
28,
-32,
28,
16,
41,
-21,
-49,
36,
-7,
13,
5,
-6,
54,
3,
19,
4,
-43,
-2,
11,
-39,
5,
-31,
11,
29,
-20,
-28,
-8,
11,
20,
26,
8,
-31,
-18,
7,
-72,
100,
30,
-10,
-25,
-21,
-30,
-64,
38,
-93,
4,
31,
19,
-27,
40,
33,
48,
46,
14,
-26,
-40,
-14,
56,
39,
20,
-26,
-24,
3,
-43,
3,
-62,
20,
-3,
-2,
-8,
-16,
-6,
-50,
35,
38,
11,
37,
15,
-2,
5,
-24,
-6,
26,
-39,
6,
46,
-37,
6,
17,
41,
14,
-20,
0,
5,
-44,
-46,
38,
11,
-45,
8,
22,
33,
-27,
7,
23,
61,
8,
27,
-39,
-12,
-2,
29,
-23,
-73,
-36,
10,
21,
-27,
-14,
-36,
4,
9,
28,
-60,
-46,
-10,
-11,
22,
-6,
0,
0,
15,
21,
43,
-26,
2,
18,
16,
47,
-40,
13,
-25,
24,
45,
30,
18,
-12,
-27,
67,
18,
22,
23,
26,
9,
6,
23,
35,
31,
35,
43,
-19,
0,
-28,
-35,
-39,
28,
35,
-21,
56,
50,
-1,
-27,
11,
48,
-26,
-17,
-43,
-10,
-25,
8,
-6,
43,
-58,
-34,
-34,
27,
2,
49,
24,
21,
1,
23,
-9,
-29,
-16,
40,
-53,
17,
-31,
0,
24,
-35,
-16,
-20,
-21,
22,
3,
25,
2,
13,
-44,
1,
-45,
-36,
-39,
19,
9,
7,
8,
9,
10,
-38,
-20,
44,
2,
20,
-39,
16,
24,
-5,
-18,
24,
-47,
-44,
-22,
-1,
-23,
1,
-36,
22,
1,
-17,
15,
-14,
-5,
-10,
-35,
-1,
-35,
-38,
-31,
-9,
-15,
54,
-32,
3,
-4,
25,
20,
-22,
-44,
-16,
34,
12,
17,
-35,
20,
52,
33,
4,
27,
1,
18,
15,
-61,
21,
-9,
2,
-62,
44,
-15,
-3,
20,
8,
25,
16,
-44,
5,
-21,
-20,
23,
0,
-31,
7,
-43,
-21,
21,
-7,
26,
-43,
-52,
-19,
-16,
-38,
10,
33,
6,
-29,
-37,
-51,
18,
-10,
-19,
-2,
-27,
-15,
-39,
-8,
8,
0,
-7,
-90,
-3,
77,
-40,
-3,
9,
-39,
10,
-13,
38,
1,
30,
9,
-13,
63,
-41,
-13,
-33,
4,
0,
6,
43,
-36,
-39,
-28,
20,
-16,
-20,
9,
31,
22,
-9,
6,
20,
4,
25,
3,
-50,
16,
13,
-7,
-42,
56,
43,
-26,
13,
26,
63,
-33,
-9,
20,
-44,
11,
3,
-26,
-24,
-37,
-20,
-15,
0,
-60,
-14,
-1,
-35,
29,
-30,
31,
-44,
18,
-1,
3,
-27,
-15,
17,
-6,
20,
49,
43,
50,
6,
-11,
-37,
70,
23,
-37,
12,
-25,
1,
-21,
8,
-32,
-2,
77,
-26,
-30,
3,
49,
26,
7,
-4,
-49,
-9,
1,
16,
48,
-22,
-6,
28,
-2,
-1,
63,
2,
10,
-12,
62,
33,
-36,
-35,
25,
-32,
-35,
-28,
43,
-48,
-5,
34,
0,
1,
-41,
-28,
-13,
-29,
30,
10,
-15,
19,
-27,
48,
43,
7,
17,
2,
1,
-12,
34,
32,
18,
-18,
10,
23,
-15,
-3,
5,
13,
3,
2,
18,
-3,
18,
-42,
-8,
-10,
-23,
-54,
11,
49,
-9,
-3,
-64,
41,
18,
14,
-25,
14,
-37,
69,
12,
2,
36,
12,
13,
40,
1,
-2,
-19,
42,
0,
-49,
46,
-17,
-5,
42,
11,
-39,
-15,
18,
5,
3,
-20,
43,
-14,
-24,
13,
-10,
3,
-3,
15,
12,
18,
-23,
-21,
-17,
-1,
8,
-60,
-12,
-36,
18,
2,
5,
-59,
21,
24,
3,
5,
7,
28,
-17,
7,
-15,
24,
32,
26,
-46,
-2,
8,
30,
12,
-13,
-13,
34,
-23,
28,
18,
-36,
36,
17,
-12,
0,
-3,
-2,
-50,
-11,
36,
-30,
-54,
-17,
-14,
36,
-9,
-10,
-18,
14,
19,
-9,
-39,
39,
1,
4,
19,
-13,
14,
14,
43,
-17,
34,
-20,
-24,
-63,
24,
13,
-25,
36,
-7,
27,
25,
15,
0,
-44,
11,
-21,
-15,
-23,
-22,
-14,
-8,
2,
9,
-30,
4,
2,
-1,
-9,
15,
-14,
-17,
-10,
0,
12,
0,
-15,
20,
39,
-44,
0,
-11,
-3,
-13,
17,
-19,
-46,
-5,
-25,
3,
-16,
-16,
-13,
40,
4,
12,
55,
12,
0,
35,
4,
-25,
36,
8,
-3,
16,
-21,
32,
-11,
-15,
16,
11,
-26,
13,
28,
-42,
-12,
2,
-12,
-52,
23,
-21,
-23,
0,
-25,
14,
12,
-6,
-6,
29,
6,
28,
-18,
12,
27,
-50,
21,
-23,
29,
29,
1,
24,
-29,
13,
-9,
63,
-30,
5,
-33,
48,
-25,
7,
-27,
-5,
31,
-1,
-11,
-20,
50,
26,
22,
66,
9,
0,
0,
-38,
9,
-14,
-35,
-5,
-9,
15,
10,
3,
-30,
27,
10,
-4,
-30,
-19,
-6,
-31,
18,
-11,
41,
-30,
-9,
-29,
-35,
-23,
80,
32,
-19,
52,
0,
1,
-40,
-35,
21,
-24,
19,
-48,
4,
-34,
40,
28,
14,
-9,
4,
51,
-16,
-7,
24,
-28,
29,
-13,
-71,
-4,
4,
-42,
27,
85,
-2,
-6,
-10,
-38,
8,
-46,
-45,
0,
-59,
0,
-27,
-42,
5,
4,
34,
-45,
58,
-14,
-24,
4,
-23,
21,
-8,
3,
-39,
16,
-15,
-20,
-25,
-36,
-1,
56,
20,
-15,
-26,
9,
-47,
-15,
-42,
59,
16,
15,
-24,
-6,
-41,
-35,
7,
15,
-36,
-17,
41,
-21,
-36,
7,
28,
-44,
-5,
-30,
5,
-15,
5,
29,
41,
-2,
-33,
-4,
-34,
-15,
14,
13,
41,
3,
-8,
11,
-38,
-4,
32,
6,
74,
2,
-14,
-21,
11,
-11,
-2,
-5,
-16,
8,
-6,
17,
45,
10,
-31,
-16,
-1,
-19,
-22,
-16,
25,
50,
-11,
4
] |
T. M. Kavanagh, J.
Plaintiff Robert L. Evans, intervening defendants Arthur J. Koscinski and John R. Murphy, and seven other candidates, including Raymond A. Kosinski and J. J. Murphy, were candidates for office of judge of recorder’s court of the city of Detroit in the August 6, 1968, primary election.
The intervening defendants, Arthur J. Koscinski and John R. Murphy, requested and were granted by the Detroit election commission a ballot designation of “Former Judge of Recorder’s Court” to distinguish them — because of the similarity of their names — from candidates Raymond A. Kosinski and J. J. Murphy.
On July 2, 1968, the plaintiff filed a complaint for an order of superintending control in the Wayne county circuit court against the Detroit Election Commission alleging that candidates Arthur J. Koscinski and John R. Murphy had no right to such ballot designations. On July 3, 1968, Judge Martin in the Wayne county circuit court issued an order of superintending control enjoining the Detroit Election Commission from printing the designation “Former Judge of Recorder’s Court” under the names of Arthur J. Koscinski and John R. Murphy.
The intervening defendants filed a claim of appeal with an ancillary motion for emergency consideration. On July 5, 1968, the Court of Appeals entered an order vacating the order of Judge Martin and granting the requested designations.
On July 10, 1968, this Court granted the emergency application for leave to appeal and affirmed the Court of Appeals on authority of Sullivan v. Secretary of State (1964), 373 Mich 627, with Justice Adams dissenting and Chief Justice Dethmers not participating. 381 Mich 761.
In Sullivan the majority of this Court required the defendant "Wayne County Election Commission to provide hy its order a ballot designation as “former assistant attorney general” for plaintiff Joe B. Sullivan, a candidate for partisan nomination to the office of prosecuting attorney for the county of Wayne in the then impending primary election.
The defendant board at first had granted plaintiff’s request for a ballot designation as “assistant attorney general” but, on complaint of the other candidates, the hoard rescinded its previous action and instead granted both candidates named Sullivan ballot designations of their respective residence addresses.
Pursuant to section 561 of the Michigan election law plaintiff Joe B. Sullivan sought to have reviewed here this later action. The cited statute under consideration in Sullivan read as follows:
“The said ballots so prepared by the board of election commissioners in each county for use hy the electors of any political party at said primary election shall include the names of all candidates of said political party for the office of governor, lieutenant governor and United States senator, the names of all candidates of said political party for district offices, and, in each county, the names of all candidates of said political party for county offices: Provided, That if 2 or more candidates for the same office have the same or similar surnames, the board of election commissioners, upon the request of any such candidate filed in writing not later than 3 days after the last day for filing nominating petitions, shall print the occupation or residence of each of such candidates having the same or similar surnames on the ballot or ballot labels under their respective names. The term ‘occupation’ shall be construed to include political office, even though it is not the candidate’s principal occupation.
“The name of any candidate shall be printed showing the given name or abbreviation or initials of the given name of the candidate, and, in the case of a married woman, shall not be printed showing the husband’s given name.”
The current constitutional authority from which the legislature derived its power to enact such legislation is Const 1963, art 2, § 4, reading:
“The legislature shall enact laws to regulate the time, place and manner of all nominations and elections, except as otherwise provided in this constitution or in the constitution and laws of the United States. The legislature shall enact laws to preserve the purity of elections, to preserve the secrecy of the ballot, to guard against abuses of the elective franchise, and to provide for a system of voter registration and absentee voting. No laAV shall be enacted which permits a candidate in any partisan primary or partisan election to have a ballot designation except when required for identification of candidates for the same office who have the same or similar surnames.”
Justice Souris, writing for the majority of the Court in Sullivan, held that the legislative purpose of section 561, above quoted, was to provide an effective means of identifying to the electorate candidates for public office Avith the same or similar surnames. The Court concluded that the means used by the Wayne county election commission— that of designating the 2 candidates named Sullivan only by their respective residence addresses in a large metropolitan area like Wayne county — was inadequate to carry out the legislative purpose. Further, that their common occupation, since both were attorneys, did not suffice as ballot designations to identify them adequately from the standpoint of the elector seeking to cast an effective vote for the Sullivan of his choice.
Since neither of the alternatives expressly provided by our statute was suitable to its objective, this Court ordered that plaintiff Joe B. Sullivan be granted the only designation (“former assistant attorney general”) which would distinguish him effectively from his opponent bearing the same surname, notwithstanding the absence of express statutory provision for use of a former occupation for such purpose.
The Court’s justification, in ordering the designation “former assistant attorney general,” was based upon profound regard for a three-fold constitutional purpose, that of effecting a meaningful identification of candidates for partisan office, of preservation of the purity of elections, and of guarding the public against abuses of the elective franchise.
In the instant case neither of the statutory provisions as to residence or occupation would effectively distinguish the candidates bearing similar surnames. Applying the law of Sullivan to these facts, and drawing as Sullivan did upon Elliott v. Secretary of State (1940), 295 Mich 245, we conclude that the use of the designation “Former Judge of Recorder’s Court” is proper.
We affirm the decision of the Court of Appeals vacating the order of Judge Martin in the trial court and granting the requested designations.
No costs, a public question being involved.
Deti-imers, C. J., and Kelly, Black, and T. E. Brennan, JJ., concurred with T. M. Kavanagh, J.
OLS 1961, § 168.561 (Slat Ann 1956 Rev § 6.1561).
Note that subsequent to Sullivan v. Secretary of State (1964), 373 Mich 627, the statute was amended by PA 1967, No 36 (Stat Ann 1968 Cum Supp § 6.1561), effective November 2, 1967, to include candidates for nonpartisan offices. | [
2,
-7,
35,
-8,
-45,
2,
-39,
-8,
-72,
-20,
-23,
-57,
5,
18,
5,
-32,
-33,
-40,
45,
-49,
39,
-13,
6,
37,
22,
49,
-14,
28,
-17,
-65,
-16,
-58,
24,
-17,
-28,
-41,
18,
-1,
-12,
-12,
-17,
-56,
-58,
28,
-44,
-2,
32,
30,
0,
-19,
-47,
22,
18,
37,
-13,
11,
-11,
-24,
11,
-51,
-31,
57,
-38,
22,
68,
7,
35,
-3,
0,
-29,
-15,
14,
-8,
-31,
-15,
50,
-45,
-27,
7,
22,
-24,
41,
6,
0,
-41,
-52,
47,
-24,
14,
14,
-25,
58,
-60,
30,
60,
4,
17,
-46,
33,
-25,
-17,
32,
-26,
-1,
-16,
6,
3,
-47,
-37,
-49,
4,
5,
37,
-29,
-32,
-19,
4,
11,
48,
0,
-16,
-30,
-29,
-33,
-32,
50,
-48,
22,
-12,
-1,
38,
33,
50,
-78,
-22,
71,
-33,
8,
14,
14,
38,
23,
-3,
-50,
-9,
-24,
-26,
-33,
57,
14,
-19,
-23,
15,
23,
-19,
0,
0,
-31,
15,
3,
-21,
-20,
-4,
-26,
-55,
22,
-36,
-30,
11,
38,
-26,
-17,
45,
21,
-31,
-1,
-14,
55,
22,
1,
-2,
22,
15,
-37,
-8,
9,
3,
-31,
3,
22,
55,
-29,
30,
-34,
30,
6,
18,
40,
23,
41,
1,
20,
-5,
-50,
-8,
1,
44,
13,
4,
24,
-42,
-56,
75,
-35,
43,
4,
23,
10,
35,
-20,
-15,
53,
23,
23,
-34,
30,
-44,
11,
16,
-12,
37,
-24,
-12,
31,
-53,
-15,
11,
-19,
4,
0,
-21,
-5,
64,
31,
18,
23,
-29,
5,
24,
64,
45,
-9,
-29,
-12,
-42,
-1,
0,
9,
26,
56,
1,
0,
-65,
-3,
-33,
-24,
60,
26,
21,
-5,
-35,
-24,
12,
-20,
20,
22,
-9,
-4,
-8,
36,
10,
8,
-19,
-7,
12,
58,
1,
46,
-16,
55,
-40,
18,
-11,
23,
-1,
-4,
47,
-48,
4,
-50,
-45,
16,
4,
-28,
8,
-42,
-59,
-51,
68,
76,
16,
4,
28,
10,
-8,
13,
-2,
19,
45,
-32,
33,
47,
-29,
-19,
-22,
-25,
46,
42,
10,
-60,
2,
1,
45,
-38,
21,
-20,
37,
5,
0,
5,
35,
-70,
19,
11,
-10,
-37,
-18,
19,
20,
-7,
10,
-31,
47,
40,
11,
7,
6,
14,
21,
-26,
15,
-11,
-10,
31,
11,
-10,
-31,
23,
31,
14,
6,
-29,
19,
16,
-29,
16,
-1,
-24,
21,
37,
-13,
-25,
-16,
-21,
7,
-12,
54,
-18,
9,
-14,
-26,
31,
-39,
14,
17,
37,
-14,
19,
-22,
20,
-24,
22,
-3,
39,
-109,
31,
-20,
36,
40,
30,
-9,
-3,
-36,
-23,
10,
-23,
1,
-10,
2,
-15,
30,
57,
-39,
-87,
7,
27,
68,
54,
98,
2,
-39,
-5,
-6,
-42,
34,
43,
-38,
-33,
28,
-26,
-6,
-28,
-20,
7,
-15,
-35,
-56,
1,
-1,
25,
-14,
71,
16,
-16,
21,
30,
-5,
-44,
-64,
-30,
-49,
-71,
-39,
-14,
-46,
50,
-50,
21,
-8,
19,
-16,
0,
-27,
44,
-66,
-44,
-14,
-10,
6,
-55,
41,
53,
-38,
-67,
-6,
-57,
4,
-46,
-20,
-29,
-14,
-14,
23,
8,
25,
6,
-44,
8,
-32,
31,
32,
29,
16,
31,
-16,
24,
18,
-12,
-22,
2,
15,
-21,
19,
108,
-1,
14,
72,
74,
25,
-22,
20,
-19,
25,
-13,
-20,
21,
44,
-29,
22,
-37,
50,
47,
43,
-40,
39,
55,
-40,
-8,
-11,
-4,
82,
24,
0,
20,
0,
-67,
-12,
-11,
32,
-8,
54,
-35,
-37,
-53,
-48,
2,
35,
2,
12,
-14,
14,
-29,
27,
11,
48,
0,
-4,
-30,
12,
46,
-16,
-39,
9,
25,
53,
-21,
26,
54,
-21,
13,
18,
-23,
18,
9,
24,
-27,
23,
-40,
-13,
15,
-1,
-74,
-69,
21,
20,
-8,
-42,
72,
59,
-55,
52,
-12,
-1,
0,
12,
0,
11,
3,
9,
-43,
-20,
-13,
-59,
-42,
-6,
26,
-43,
28,
-7,
-13,
10,
22,
52,
0,
16,
-3,
9,
-21,
-10,
44,
41,
-37,
-64,
-2,
36,
-32,
-35,
17,
14,
24,
-9,
-10,
29,
-24,
12,
-7,
-74,
-54,
-44,
25,
6,
5,
-28,
-45,
-26,
-44,
36,
7,
25,
-33,
28,
37,
-7,
-17,
3,
14,
21,
-37,
36,
-14,
-9,
-17,
43,
-45,
17,
-23,
17,
-4,
-20,
14,
4,
-5,
-20,
6,
48,
-28,
8,
-10,
-59,
-18,
-22,
15,
-24,
29,
-4,
11,
-16,
-21,
48,
-36,
-24,
17,
11,
41,
1,
-12,
82,
-17,
-17,
-13,
-1,
2,
22,
-8,
37,
21,
-9,
6,
-49,
55,
-58,
2,
14,
-22,
50,
-24,
-73,
-62,
-13,
-18,
36,
-22,
-3,
12,
-19,
49,
10,
-62,
-51,
58,
13,
-50,
-30,
-70,
21,
17,
19,
15,
-5,
39,
-27,
30,
41,
7,
0,
45,
50,
-8,
-19,
24,
-21,
9,
29,
-34,
-1,
1,
96,
21,
23,
11,
-42,
0,
0,
-36,
-13,
6,
8,
-26,
-41,
-32,
-2,
32,
70,
-31,
34,
-14,
-11,
9,
-52,
-23,
-24,
-66,
-26,
20,
-10,
-12,
26,
52,
63,
0,
8,
11,
15,
-40,
6,
-60,
8,
28,
1,
25,
-20,
96,
-1,
-64,
-31,
-21,
-38,
51,
-19,
-29,
15,
-18,
-10,
-31,
-26,
6,
26,
61,
-27,
56,
7,
69,
3,
10,
32,
4,
-27,
10,
-47,
44,
50,
5,
-8,
39,
-34,
37,
-7,
66,
-10,
-9,
-1,
35,
-81,
41,
-6,
27,
35,
-57,
-52,
-1,
48,
5,
-9,
-58,
17,
35,
-7,
-54,
8,
51,
3,
-9,
-28,
18,
27,
0,
-35,
-6,
-38,
-43,
-49,
20,
-17,
-17,
-15,
-28,
34,
-41,
2,
31,
36,
32,
21,
5,
26,
10,
35,
26,
23,
-35,
-38,
-15,
21,
-11,
-19,
-34,
39,
14,
18,
-10,
22,
22,
8,
-13,
-53,
-90,
-14,
13,
22,
14,
-10,
-44,
-16,
-4,
-14,
-88,
49,
3,
24,
15,
-24,
-27,
10,
1,
6,
19,
32,
-24,
-17,
-2,
12,
-11,
21,
-2,
-72,
31,
-7,
-3,
1,
2,
4,
-25,
-21,
-21,
-8,
-1,
3,
1,
-40,
28,
27,
42,
11,
16,
0,
-49,
-29,
-51,
29,
6,
1,
28,
-6,
-10,
-59,
-5,
7,
35,
-1,
-55,
-14,
-8,
0,
35,
38,
-18,
-5,
-31,
-52,
20,
13,
-13,
-14,
-66,
16,
15,
-40,
-18,
-31,
31,
36,
30,
21,
-47,
24,
52,
33,
29,
11,
3,
32,
-44,
32,
24,
-83,
-4,
61,
-23,
-55,
-28,
-54,
27,
-3,
11
] |
T. M. Kavanagh, J.
January 20, 1964, defendant Gorka and Henry Mosden were jointly tried and found guilty of armed robbery by a jury in recorder’s court. Bach was sentenced to a term of 10 to 20 years.
March 2, 1964, the attorney who had been trial counsel for Mosden became counsel for both Mosden and defendant Gorka in the postconviction proceedings and filed a motion for a new trial.
April 6, 1964, defendant Gorka and Mosden, acting in propria persona, filed a motion to obtain transcripts and trial records.
June 3,1964, defendant, acting in propria persona, filed a motion for bond pending appeal.
August 4,1964, the trial court denied the in propria persona motions for assistance and free transcripts pending appeal. The same day the trial court de nied defendant Gorka’s in propria persona motion for bail pending appeal.
August 28,1964, the trial court denied defendant’s motion for new trial filed March 2, 1964.
September 30, 1964, this Court, having before it on appeal defendant’s motion for appointment of counsel and for transcript, remanded the matter to recorder’s court to enter an order providing both Gorka and Mosden with counsel and with such portion of the trial transcript as counsel may require for proper postconviction proceedings.
October 28, 1964, the trial court appointed Paul R. Jackman as legal counsel for both Gorka and Mosden. An appearance, dated October 8,1964, was filed by attorney Jackman on October 28, 1964.
February 9, 1965, defendant Mosden, acting in propria persona, filed a motion to compel compliance of the court reporter with the court order directing furnishing of transcript.
March 10, 1965, the trial judge, upon motion of the court reporter, ordered that the time within which the transcript was to be furnished be extended to and include June 5, 1965.
June 5, 1965, the court reporter petitioned the trial court for a further extension of time within which to furnish the transcript. The trial court ordered an extension to include August 2, 1965.
No further extensions were given, but it was not until October 22, 1965, that the court reporter filed with the clerk a notice of filing of the transcript of the record on appeal. The record discloses an affidavit of mailing of this notice to Attorney Jackman, but no notice was sent to the defendants, who had been acting in propria persona.
December 14, 1965, Attorney Jackman filed a consent and notice of substitution of attorney. On this same document, Attorney Walter A. Kurz en tered Ms appearance as attorney for defendant Gorka. Notice of substitution of attorney was sent to appellate counsel for the people.
January 17, 1966, Attorney Kurz filed an appearance as attorney for defendant Gorka for post-conviction procedures and appeal.
October 26, 1966, Attorney Kurz filed an application for leave to file delayed appeal in the Court of Appeals. Accompanying the application was one for setting of bail pending disposition of appeal.
January 14, 1967, the Court of Appeals denied the application for delayed appeal for the reason that merit is not shown on the grounds presented. Application for rehearing was denied by the Court of Appeals on February 24, 1967.
Defendant Gorka is here on leave granted by this Court on June 8, 1967, 379 Mich 768.
On appeal in this Court, defendant Gorka contends he was unfairly and unconstitutionally denied and deprived of his timely, adequate, and effective right of appeal, appellate processes, assistance of trial and appellate counsel, and furnishing of trial transcript. He further contends that the trial court, court stenographer, court-appointed trial and appellate counsel, and the Michigan Court of Appeals violated and denied defendant his constitutional rights in that the trial court and court-appointed counsel wrongfully failed to inform him of his absolute right to appeal his conviction and, as an indigent, to have trial counsel and transcript furnished at State expense.
Defendant Gorka also contends that his court-appointed counsel wrongfully failed or refused to file the necessary claim of appeal within 60 days of entry of order appointing him and thereafter failed or refused, for approximately one year, to file and process any appeal, without good cause or reason shown, even though defendant demanded he file plenary appeal.
Defendant further contends that the trial court stenographer obtained and took improper and unauthorized extensions of time to file the trial transcript and did not file said trial transcript until approximately one year after entry of order therefor; also, that the Michigan Court of Appeals wrongfully failed and refused to grant or restore to defendant his absolute right to appeal his conviction, Lost through no fault of his own.
We deplore the delays in providing defendant Gorka with a trial transcript, the dilatoriness of certain appellate counsel, and the unnecessary waste of time and energy in perfecting a plenary appeal. However, to a certain extent defendant Gorka hindered his own progress by the numerous in propria persona motions which conflicted with the course of appellate procedures dictated by his counsel.
Nevertheless, the defendant has had a full review of his case in this Court. The circuitous appellate route in this case, caused in part by the dilatoriness and violations of court rule by the court reporter and counsel, has not diminished the right of appeal. He has received from this Court the same appellate review he would have received from the Court of Appeals under an appeal of right. The fact that defendant, on his appellate route, encountered numerous procedural detours, some of his own making, does not compel this Court to grant him a new trial.
The cases cited by the defendant are not applicable to the instant case. Ellis v. United States (1958), 356 US 674 (78 S Ct 974, 2 L Ed 2d 1060); and Anders v. California (1967) 386 US 738 (87 S Ct 1396, 18 L Ed 2d 493), require that an appointed counsel act truly as an advocate for the defendant and not merely as amicus curiae to the court. On appeal to this Court defendant was actively and eommendably represented by appellate counsel. Entsminger v. Iowa (1967), 386 US 748 (87 S Ct 1402, 18 L Ed 2d 501); Eskridge v. Washington State Board of Prison Terms ancl Paroles (1958), 357 US 214 (78 S Ct 1061, 2 L Ed 2d 1269); Lane v. Brown (1963), 372 US 477 (83 S Ct 768, 9 L Ed 2d 892); and Hardy v. United States (1964), 375 US 277 (84 S Ct 424, 11 L Ed 2d 331), require that a trial transcript be provided an indigent defendant. Here, this Court did comply with the Federal authorities and a free transcript was furnished to the defendant after a regrettably long delay. Hamilton v. Alabama (1961), 368 US 52 (82 S Ct 157, 7 L Ed 2d 114); Wilson v. Rose (CA 9, 1966, 366 F2d 611; Whitaker v. Warden, Maryland Penitentiary (CA 4, 1966), 362 F2d 838; and Jones v. Cunningham (CA 4, 1963), 313 F2d 347, express the rule that under ■ the Sixth Amendment to the Federal Constitution “assistance of counsel” means an “adequate and effective” counsel. It appears from the record as a whole that trial counsel and appellate counsel, although hampered by defend ant’s independent legal maneuvers, ably and competently represented tbe accused.
A review of the entire record does not disclose any procedural infirmity which would warrant reversal of the defendant’s conviction.
The only substantive issue raised is whether the destruction of the notes of the police officers conducting the surveillance violated the defendant’s right of confrontation and cross-examination.
The record discloses that five detectives from the criminal intelligence bureau of the Detroit police department had kept defendant G-orka and codefendant Mosden under surveillance for a period of two hours. During this period of surveillance each of the detectives made handwritten notes of the details of his observation. After the defendants were arrested, the five detectives gathered in one room and, each using his own handwritten notes, made an individual typewritten report detailing the defendants’ activities. Each detective thereafter destroyed his handwritten notes. These reports were not offered as evidence by the prosecution, but were used — over objection — by the police detectives at the trial to refresh their memories as to specific details.
The defendant here argues that the systematic destruction of the original notes deprived him of an effective means of cross-examination and of impeaching each witness’ testimony.
Research discloses that there is one case which apparently supports the defendant’s position. In People v. Betts (1947), 272 App Div 737, 741 (74 NYS2d 791, 794), the police had “bugged” the defendant’s telephone and made shorthand notes of incriminating conversations. After incorporating these shorthand notes in a report, the police, by their own admission, destroyed the notes to prevent defendant from using them for cross-examination purposes. At trial the witnesses used the reports to refresh their memories. The New York court, on appeal, held at page 741:
“While the general rule is that any paper whatsoever may be used to refresh the recollection of a witness, provided it actually serves that purpose [citations omitted], where, as here, an officer of the law attempts to refresh his recollection from a writing which purports to be a transcript of original and secondary notes wilfully destroyed by him to frustrate cross-examination, the witness should not be permitted to use such a document to aid him.”
The distinguishing factor in Betts, supra, however, is the misdirected zeal of the police officers in wilfully and knowingly suppressing evidence favorable to the defendant. The record in the case before us would not support, and neither does defendant-appellant claim, any wilful suppression of evidence.
There appears to be considerable Federal authority dealing with destruction of fragmentary notes which is contrary to the theory advanced by the defendant. These cases, however, uniformly concern the administration of the Jencks act.
A review of Michigan authorities discloses only two pertinent criminal cases.
In People v. Hobson (1963), 369 Mich 189, this Court affirmed the trial court’s admission into evidence of a typewritten report composed from surveillance notes which were subsequently destroyed. The main issue decided dealt with the admissibility of the report under the rule of past recollection recorded. The ancillary issue of whether destruction of the surveillance notes deprived defendant of the “best evidence” was disposed of by the Court, upon the authority of People v. Johnson (1921), 215 Mich 221, stating (pp 193, 194):
.“We think the testimony of the officers that the memoranda constituted a correct record, although not exact copies, of their notes together with matter drawn from their memories, qualified them for admission and consideration by the judge as to credibility and accuracy. They were prepared by officers who had personal, firsthand knowledge of the matters recorded in the memoranda and the fact that, in the preparation, the officers referred to their notes to supplement their memories, did not render the memoranda secondary evidence and make them inadmissible.”
In People v. Johnson, supra, this Court held that it was not error to permit the prosecuting attorney’s stenographer to refresh her memory from the transcript of the defendant’s statement rather than requiring only the use of her original notes. The Court stated (p 225):
“The stenographer or any one else who heard the defendant’s statement would be competent to testify to what he said; and the stenographer may use her minutes for the purpose of refreshing her recollection as to what the defendant stated.”
In People v. Hobson, supra, I joined Justice Souris in his dissent criticizing the present police practice of destroying important surveillance notes and holding that such a practice unnecessarily threatens the constitutional safeguards of a fair trial by denying effective cross-examination of witnesses. However, I must accede to the majority of the Court, which held that it was not error to permit the prosecution to have admitted into evidence the typewritten report and that the defendant’s constitutional right of confrontation and cross-examination was not impaired, by the destruction of the police surveillance notes. For the present at least, this is the law in Michigan.
We hold that the destruction of the original notes by the five detectives did not deprive defendant of an effective means of cross-examination and of impeaching each witness’ testimony.
While we find no merit in defendant’s arguments, one final matter must be considered by the Court for a proper disposition of this case.
In the companion case of People v. Mosden (1968), 381 Mich 506, which was separately appealed to this Court, it is alleged that the trial court erred in denying Mosden’s application for a new trial based upon newly discovered evidence. This claim is predicated on an affidavit of a Charles Page Blackwell confessing to the commission of the armed robbery for which defendants Mosden and Gorka were convicted.
Upon Mosden’s motion, a hearing was held on March 2, 1966, but Mosden was denied the opportunity by the trial court to subpoena witnesses, including Blackwell. The trial judge’s opinion denied Mosden’s motion because “the matter concerning Charles Page Blackwell was thoroughly investigated by the police and determined to be false.” (Emphasis added.)
This Court in its Per Curiam opinion in People v. Mosden, supra, held that this procedure was not a full and fair evidentiary hearing which squares with due process or the holding in Townsend v. Sain (1963), 372 US 293 (83 S Ct 745, 9 L Ed 2d 770), and remanded the case to recorder’s court for a proper evidentiary hearing.
This question, regarding Blackwell’s affidavit confessing to a crime of which both defendants were jointly accused and convicted, was never raised by defendant Gorka either by motion for new trial or on appeal. However, this Court can take judicial notice of the facts and issues presented in People v. Mosden, supra.
To avert any miscarriage of justice, which would necessarily result to defendant Gorka if Blackwell’s confession proves to be true, we remand this case to recorder’s court for the purpose of permitting defendant Gorka to join in defendant Mosden’s motion for new trial. Defendant Gorka shall be permitted to subpoena and bring in all relevant witnesses, including Blackwell, for a full and fair evidentiary hearing to determine whether a new trial should be granted.
Dethmers, Kelly, and Adams, JJ., concurred with T. M. Kavanagh, J.
CLS 1961, § 750.529 (Stat Ann 1968 Cum Supp § 28,797).—Re-porter.
This, of course, does not deny the defendant’s contention that the Court of Appeals erred in not granting the application for leave to file a delayed appeal. Under the factual circumstances of this ease a serious constitutional problem would have been raised if this Court had not granted leave to appeal. Consideration of a petition to file a delayed appeal is not equivalent to an appeal as of right guaranteed by Const 1963, art 1, § 20. The former requires an affirmative showing that delay was not due to defendant’s culpable negligence and that there is merit in the elaim of appeal. The latter requires no such affirmative showing. GCR 1963, 806.4,
We seriously question whether a 15-minute consultation with the defendant is an adequate preparation for a trial of a capital ease. See Jones v. Cunningham (CA 4, 1963), 313 F2d 347. We cannot, however, condemn trial counsel as being inadequate, absent a clear showing of dereliction which prejudiced the defendant. The reeord on appeal discloses that trial counsel raised and argued all issues known to him at trial. Although trial counsel did fail to note certain alibi witnesses produced by defendant, this defect was eured at trial by the people in putting the alibi witnesses on the stand.
18 use, § 3500. | [
49,
19,
11,
7,
5,
-8,
-25,
-54,
0,
0,
12,
-22,
-12,
-51,
17,
-9,
-10,
-6,
47,
-22,
-31,
-18,
35,
50,
17,
3,
27,
68,
-5,
-36,
32,
12,
45,
-28,
-16,
-9,
52,
23,
-32,
11,
-12,
-22,
2,
35,
-15,
-9,
1,
-15,
22,
7,
44,
10,
40,
-15,
-37,
-1,
20,
-9,
12,
16,
18,
61,
-22,
0,
-3,
-15,
33,
0,
-30,
-62,
0,
-5,
22,
-34,
-22,
20,
-7,
34,
77,
42,
31,
-28,
61,
20,
-4,
-24,
3,
-79,
-19,
18,
20,
57,
-53,
-25,
12,
26,
-10,
16,
-9,
35,
-35,
6,
-28,
20,
32,
18,
-24,
-51,
-46,
12,
-4,
25,
101,
-34,
-18,
-34,
-38,
-1,
-33,
-38,
-21,
52,
29,
-4,
5,
-15,
-85,
-47,
43,
-60,
-30,
31,
9,
-44,
-11,
4,
1,
-36,
10,
-41,
-18,
28,
-39,
-10,
0,
-32,
-4,
-67,
4,
63,
-44,
0,
-28,
0,
60,
-4,
-6,
-17,
-25,
40,
8,
15,
-4,
-87,
36,
-18,
-36,
-84,
29,
-28,
-46,
40,
32,
-3,
-5,
-48,
8,
-7,
6,
-13,
21,
42,
14,
23,
-28,
-35,
-42,
16,
13,
28,
-16,
1,
7,
-18,
48,
-26,
-5,
10,
8,
18,
-5,
24,
30,
-21,
-5,
15,
41,
45,
50,
8,
0,
-21,
26,
-21,
-41,
-11,
-6,
40,
-21,
36,
-53,
44,
-24,
-47,
-57,
77,
23,
46,
3,
-16,
-11,
-29,
-35,
33,
-7,
42,
-29,
-11,
38,
-26,
-59,
-16,
27,
-12,
39,
5,
-29,
5,
17,
0,
-14,
12,
-32,
0,
-22,
-16,
9,
28,
7,
11,
-1,
28,
-4,
13,
-26,
-14,
17,
-6,
-7,
10,
-7,
-72,
10,
59,
-7,
-9,
-44,
-24,
-42,
-18,
74,
0,
17,
-13,
-15,
-46,
-24,
26,
-20,
-23,
-10,
6,
8,
-9,
31,
-33,
-36,
26,
-26,
15,
13,
14,
31,
1,
40,
43,
-3,
-66,
-5,
-14,
-8,
-13,
94,
-35,
18,
22,
4,
23,
-18,
-17,
-6,
-53,
7,
-7,
69,
24,
31,
1,
-1,
23,
0,
-45,
0,
9,
-36,
-11,
10,
20,
49,
57,
-74,
-8,
-18,
-41,
-36,
20,
-18,
25,
-57,
-3,
-19,
36,
44,
5,
-47,
8,
-52,
6,
-5,
-39,
21,
-21,
50,
33,
40,
-22,
-18,
14,
0,
23,
42,
-34,
-20,
-18,
-42,
59,
43,
14,
3,
25,
22,
-54,
5,
-34,
-19,
-17,
30,
-23,
55,
53,
-25,
70,
9,
-66,
-41,
11,
-17,
-20,
6,
-22,
-15,
4,
103,
14,
-60,
-15,
-29,
48,
-11,
30,
-39,
-1,
-1,
36,
-6,
-42,
-37,
-19,
12,
-1,
46,
56,
59,
-4,
-22,
-9,
1,
27,
10,
-106,
3,
-10,
-8,
1,
5,
15,
-43,
61,
82,
-27,
-42,
-68,
-14,
53,
-4,
23,
-45,
-57,
37,
4,
28,
-22,
5,
0,
-29,
26,
-30,
21,
20,
57,
35,
-46,
-30,
29,
76,
-13,
-88,
-9,
-10,
-23,
4,
10,
-29,
18,
-28,
-17,
37,
13,
40,
-10,
79,
7,
-11,
9,
-20,
-64,
-36,
-32,
-10,
28,
-9,
3,
-2,
-5,
7,
13,
-35,
-37,
-18,
15,
-53,
-3,
50,
62,
46,
44,
0,
-16,
61,
30,
-21,
26,
-35,
0,
-30,
-58,
22,
50,
11,
-32,
36,
-8,
41,
53,
-27,
-21,
27,
-65,
-30,
0,
34,
4,
-40,
-26,
17,
4,
-75,
-52,
-19,
-40,
-18,
9,
-4,
11,
5,
0,
31,
-34,
5,
2,
9,
-56,
9,
-14,
-9,
-23,
18,
23,
-16,
-18,
2,
7,
14,
34,
-2,
-35,
-40,
2,
28,
8,
8,
24,
-38,
46,
16,
17,
16,
34,
15,
17,
18,
10,
-32,
0,
-40,
37,
13,
10,
-21,
13,
-39,
56,
-1,
-6,
28,
-17,
7,
14,
8,
-6,
59,
18,
-27,
20,
26,
12,
30,
56,
-47,
-32,
31,
-72,
-71,
24,
-35,
-46,
-15,
25,
-53,
7,
-40,
13,
-22,
22,
-5,
6,
-1,
-20,
2,
6,
10,
-44,
-7,
21,
25,
16,
-26,
59,
-26,
25,
31,
-9,
18,
-44,
-51,
58,
-29,
-10,
-21,
-1,
-52,
-8,
-12,
-16,
-8,
-30,
19,
-6,
57,
-19,
0,
-2,
-98,
0,
-25,
-31,
9,
-51,
6,
0,
4,
-59,
29,
-46,
6,
-30,
-12,
0,
6,
-59,
26,
-69,
48,
-24,
36,
-9,
-3,
-2,
6,
65,
-18,
20,
-56,
42,
-30,
-4,
45,
28,
-8,
16,
29,
-18,
33,
0,
34,
-30,
44,
-31,
27,
9,
-1,
17,
12,
-8,
17,
-62,
-37,
5,
-30,
29,
-9,
27,
30,
36,
14,
-4,
-22,
-54,
34,
-39,
15,
-13,
-30,
-28,
9,
-3,
-56,
-30,
11,
-24,
-41,
-65,
-17,
-43,
24,
2,
14,
0,
16,
-11,
-4,
55,
9,
3,
5,
43,
65,
-43,
-76,
4,
24,
21,
0,
-43,
-7,
11,
45,
-13,
70,
39,
3,
-54,
-16,
39,
-51,
-2,
-3,
43,
27,
13,
-6,
41,
-21,
7,
62,
-16,
-35,
-73,
11,
32,
15,
-55,
-16,
46,
-20,
20,
-16,
46,
-6,
19,
7,
1,
34,
15,
46,
-69,
36,
-8,
-15,
17,
26,
34,
7,
-23,
-51,
34,
4,
-51,
-10,
-29,
-16,
-29,
-9,
15,
23,
-1,
18,
-26,
23,
-12,
-9,
-33,
-21,
35,
-1,
-36,
-8,
23,
-44,
34,
-2,
8,
20,
52,
50,
2,
6,
2,
-30,
-11,
39,
-14,
-32,
-37,
-34,
8,
1,
-20,
3,
-7,
15,
1,
14,
-21,
-18,
37,
-16,
0,
15,
-7,
-33,
0,
3,
9,
-1,
66,
18,
-27,
9,
-10,
-86,
24,
5,
0,
-11,
-9,
-5,
-76,
-3,
-35,
-18,
61,
13,
-12,
0,
26,
41,
-26,
61,
12,
-21,
-22,
-6,
30,
44,
-3,
11,
-6,
2,
-20,
35,
0,
7,
-14,
-36,
-60,
-27,
11,
14,
-16,
-13,
-55,
11,
65,
32,
-52,
65,
-8,
-19,
8,
2,
2,
84,
-32,
16,
42,
59,
-83,
-27,
-43,
31,
2,
-32,
-8,
-3,
28,
-6,
-11,
38,
-29,
12,
-14,
-29,
24,
-3,
12,
48,
45,
16,
-9,
-51,
0,
-33,
-28,
-9,
-29,
18,
-14,
-9,
39,
41,
-28,
11,
22,
-23,
-11,
5,
25,
-17,
4,
19,
-24,
-64,
-12,
-25,
25,
19,
27,
-29,
23,
-6,
18,
-38,
-29,
16,
31,
4,
-67,
-59,
4,
-27,
3,
53,
-3,
46,
33,
29,
40,
6,
-13,
20,
28,
68,
-19,
-16,
-5,
1,
-8,
-12,
52,
-47,
1,
-35,
51
] |
Per Curiam.
The council of defendant City of Dearborn, proceeding under authority of the Revenue Bond Act of 1933, Act No 94, PA 1933, as amended (MCLA § 141.101 et seq.; Stat Ann 1969 Rev § 5.2731 et seq.), adopted a resolution for submission of a bid to the Federal Housing Administration on an 88-unit apartment in Clearwater, Florida. The bid was submitted and was successful. Thereafter, under direction of the council, the purchase was consummated and the city became owner of the apartment, intended to be used for rental to senior citizens of defendant city who could not endure the rigors of Michigan winters.
Plaintiffs, as taxpayers of the city, brought this action praying that the resolution of the city council be set aside and held illegal, that defendants’ purchase of the property be restrained, and for a determination that the action of the city council is illegal, ultra vires, unconstitutional and void.
The trial court granted defendants’ motion for accelerated or summary judgment dismissing plaintiffs’ complaint. The Court of Appeals affirmed, holding that defendant city has the power to establish, own and operate public housing facilities outside this state. The matter is here on leave granted to plaintiffs to appeal.
Plaintiffs state the question involved in this appeal as follows:
“Can the defendant purchase, own and operate with tax funds an 88-unit apartment building in the State of Florida?”
Plaintiffs appear to advance as reasons for answering in the negative the following:
1. The grant of power to cities in the Michigan Constitution of 1963, art 7, § 23, to acquire, own, establish and maintain certain properties and facilities therein specified does not include in the list public housing. The answer to that is that it does expressly include “all works which involve the public health or safety”. In Advisory Opinion re Constitutionality of PA 1966, No 346 (1968), 380 Mich 554, we held that the construction of housing is an enterprise affected with a public interest. In Thomson v. City of Dearborn (1957), 348 Mich 300, where counsel for plaintiffs here was the plaintiff, he urged this same argument against this same city’s acquisition of off-street parking facilities. This Court upheld the right of the city to do so, stating that it was a work involving public health or safety. Public housing is no less so. Thomson v. City of Dearborn (1960), 362 Mich 1, tends to support this view. It is to be noted, also, that Michigan Constitution of 1963, art 7, § 22, provides:
“No enumeration of powers granted to cities and villages in this constitution shall limit or restrict the general grant of authority conferred by this section.”
This indicates that the grant of itemized powers contained in the subsequent § 23 is not to be deemed exclusive.
2. Plaintiffs say that the Revenue Bond Act of 1933, Act No 94, under which the city has presumed to act, is not applicable here because no bonds were involved in the transaction. This overlooks § 4 of the act, MCLA § 141.104 (Stat Ann 1969 Rev § 5.2734), which reads:
“The powers in this act granted may be exercised notwithstanding that no bonds are issued hereunder.”
We are satisfied that the acquiring and maintaining of public housing for senior citizens of the city is a public work, involving public health, within the competence of the city. The Revenue Bond Act of 1933, authorizing acquisition of public improvements by cities, defines public improvements, in § 3 of the act, as including, at the head of the list, “housing facilities”. Accordingly, public housing should be considered no less a public work, with expenditures therefor being for a public purpose, than we held a marina to be in Gregory Marina, Inc., v. City of Detroit (1966), 378 Mich 364.
Section 4 of the Revenue Bond Act authorizes the acquisition and operation of “public improvements * * * within or without its corporate limits.” This implements the provisions of Michi gan Constitution of 1963, art 7, § 23, authorizing a city to acquire public works “within or without its corporate limits.” There can ,be no doubt, then, that a city may do that which defendant city has done here if on a location without its corporate limits but within the State of Michigan.
Was it the intent of the framers of the Michigan Constitution and of the electors in the adoption thereof, and of the legislature, that the noted language “within or without” in the Constitution and the statute might include places outside of this state? If such was the intent, would that be violative of the Constitution of the United States?
Nothing in the language of the Michigan Constitution or in the Revenue Bond Act granting the power in question to cities expresses an intent to limit the meaning of the term “within or without its corporate limits” so as to confine its scope to places within this state. We hold that such was not the intent. In 1968, House Bill No. 3595 was introduced in the legislature which proposed to amend the Revenue Bond Act to provide that no out-of-state acquisitions were permissible thereunder. The bill did not pass.
Plaintiffs cite no authority for the proposition that the conferring by the Michigan Constitution or statute upon its cities of authority to acquire and operate public works in another state would be unconstitutional under the Constitutions of this state or of the United States and we find none.
As for the provision of Michigan Constitution of 1963, art 7, § 23, authorizing city acquisition of public works “within or without its corporate limits” and the like provision in § 4 of the Revenue Bond Act, a similar provision in a Tennessee statute (Williams Ann Code, § 2726.13) was construed in McLaughlin v. City of Chattanooga (1944), 180 Tenn 638 (177 SW2d 823), to mean that the City of Chattanooga had power to expend public funds in the purchase of lands for municipal airport purposes located outside of its corporate limits, lying partly in the State of Tennessee and extending over into the State of Georgia. The court observed that the words “within and without” embraced every place in the universe, including locations outside of the state. The Tennessee court went on to say:
“For more than one hundred years the State of Georgia has owned valuable property in Tennessee, located within the City of Chattanooga, with clearly implied, if not expressed, legislative, municipal and judicial recognition by this State, the City of Chattanooga, and the Courts. Twenty years ago the Supreme Court of the United States clearly recognized the right of ownership by Georgia of property in Tennessee. State of Georgia v. City of Chattanooga [1924], 264 US 472, 480, 481, 44 S Ct 369, 370, 68 L Ed 796, 799.”
An examination of the opinion in State of Georgia v. City of Chattanooga (1924), 264 US 472 (44 S Ct 369, 68 L Ed 796), discloses a situation in which the State of Georgia owned property in Chattanooga, Tennessee, which the latter was seeking to condemn in part for street purposes. The United States Supreme Court held that Georgia’s ownership of land in Tennessee was not in a sovereign capacity but a proprietary one, and, hence, the property was subject to condemnation by the city. The court took the right of Georgia to own property in its proprietary capacity in the State of Tennessee as a matter of course, with no suggestion of involvement of a Federal constitutional question in that regard. Had the court considered that there was such a question, this would have been the occasion to consider and decide it. Not having done so, we think it follows that no such question exists.
Affirmed. No costs, a public question being involved.
Black, T. E. Brennan, Swainson and Williams, JJ., concurred.
This Opinion rendered in Per Curiam form was originally prepared by Justice John R. Dethmers prior to his retirement and is adopted verbatim. | [
17,
49,
-10,
-24,
-9,
29,
-11,
41,
7,
3,
20,
16,
48,
2,
19,
-7,
28,
18,
0,
37,
-43,
-19,
-53,
10,
-28,
-23,
39,
-28,
-17,
19,
27,
-62,
12,
0,
-45,
33,
50,
11,
17,
23,
16,
26,
-2,
5,
1,
-13,
16,
-9,
49,
-17,
-14,
34,
-3,
-2,
-22,
-44,
-3,
-11,
-25,
21,
-21,
-6,
-20,
66,
-5,
7,
17,
26,
4,
-17,
35,
54,
-13,
-36,
56,
3,
31,
30,
-20,
0,
1,
9,
58,
-37,
18,
13,
7,
-20,
16,
-11,
-23,
-60,
17,
13,
5,
71,
25,
-62,
16,
-40,
-34,
2,
27,
70,
11,
3,
-7,
-16,
22,
-17,
-22,
-29,
-18,
4,
8,
-16,
-4,
40,
30,
-18,
-15,
19,
1,
15,
-3,
1,
0,
-30,
-23,
-14,
27,
-16,
17,
21,
20,
60,
40,
39,
81,
38,
5,
51,
-1,
-3,
12,
14,
27,
-13,
-22,
-54,
-36,
4,
20,
-5,
-28,
2,
-18,
19,
35,
-20,
8,
-22,
-28,
-31,
-15,
-34,
-39,
91,
20,
20,
37,
16,
-18,
-53,
21,
-38,
-19,
39,
-10,
-30,
-32,
12,
19,
28,
-13,
-9,
-2,
-30,
31,
-104,
97,
-45,
-51,
-17,
-1,
53,
12,
29,
-37,
4,
-28,
-57,
-2,
-44,
43,
-21,
-16,
-41,
0,
55,
-11,
5,
-24,
-20,
43,
-2,
-5,
28,
29,
-16,
16,
-29,
-22,
11,
-15,
1,
24,
-30,
34,
-16,
-16,
-32,
48,
9,
-36,
15,
42,
42,
11,
-1,
-41,
59,
-47,
1,
-36,
-3,
0,
-35,
18,
-1,
4,
-36,
8,
-8,
1,
21,
-22,
-12,
25,
1,
22,
17,
-11,
-7,
-5,
46,
-42,
-7,
-53,
16,
-78,
73,
-31,
23,
-74,
-21,
-13,
-10,
-13,
17,
7,
-15,
32,
13,
19,
53,
7,
5,
-2,
-21,
24,
29,
-32,
-1,
34,
-45,
-2,
-32,
12,
22,
-37,
56,
15,
36,
41,
-2,
19,
39,
-3,
13,
44,
-29,
-5,
15,
-14,
-4,
40,
-30,
39,
-30,
11,
-5,
-18,
18,
-2,
-52,
45,
-34,
-56,
-17,
30,
20,
10,
32,
2,
5,
31,
-48,
-32,
8,
30,
47,
38,
-23,
14,
28,
-42,
-1,
-29,
-15,
-64,
27,
-44,
24,
-39,
3,
-4,
20,
-6,
56,
29,
51,
-8,
23,
-23,
-6,
6,
-26,
30,
31,
6,
13,
-85,
37,
7,
-13,
26,
-3,
-69,
33,
17,
-20,
55,
-30,
40,
43,
10,
-26,
-26,
-63,
-46,
-60,
-25,
6,
-7,
-65,
-10,
-13,
-4,
-37,
15,
29,
-22,
3,
-22,
11,
14,
24,
9,
43,
-81,
-15,
19,
-30,
-35,
12,
13,
-6,
37,
-31,
-1,
15,
-36,
-58,
-1,
-59,
23,
26,
-69,
53,
-44,
-13,
-7,
-16,
-17,
-26,
-33,
-80,
-45,
-12,
-15,
-3,
-1,
-10,
-39,
-65,
-45,
37,
-8,
-13,
16,
13,
-49,
13,
-45,
-1,
19,
-90,
41,
-18,
-29,
-14,
13,
-23,
-32,
13,
-51,
1,
28,
-30,
-34,
20,
20,
5,
-13,
-34,
-32,
42,
17,
32,
13,
21,
0,
35,
-55,
-15,
-6,
-19,
-35,
46,
40,
54,
-22,
-15,
-7,
-1,
15,
21,
22,
16,
16,
43,
-34,
34,
21,
-50,
22,
-7,
23,
20,
-7,
-16,
-17,
59,
-23,
26,
-2,
-23,
22,
0,
-12,
-2,
-25,
-22,
12,
52,
39,
-2,
-15,
-38,
20,
-66,
34,
6,
5,
-31,
-28,
19,
-5,
17,
-5,
3,
-29,
6,
-12,
12,
-4,
-36,
30,
11,
-47,
-25,
-75,
4,
-9,
18,
-21,
26,
4,
40,
-58,
-25,
45,
-7,
9,
-16,
-4,
-19,
41,
22,
-25,
18,
-7,
-34,
-25,
-35,
13,
-9,
-59,
8,
-8,
-1,
18,
-4,
-19,
10,
34,
24,
2,
-58,
-11,
8,
-3,
-25,
-13,
23,
-5,
8,
-6,
-36,
-13,
-15,
-34,
-14,
-2,
-21,
0,
-16,
16,
-10,
24,
-6,
-16,
-20,
-3,
30,
5,
-11,
74,
-6,
5,
-4,
-8,
-6,
16,
-2,
-24,
14,
-8,
64,
-27,
22,
-3,
-29,
43,
23,
45,
27,
-1,
-47,
-33,
-10,
-18,
-14,
9,
56,
-8,
-5,
4,
27,
-37,
9,
3,
-10,
13,
-1,
-4,
-15,
21,
-39,
32,
-2,
-24,
-15,
-27,
-25,
34,
-34,
32,
-16,
-5,
64,
30,
36,
21,
-6,
-5,
5,
-8,
-17,
-37,
-15,
-22,
-18,
22,
-32,
-8,
-10,
-18,
0,
-6,
7,
7,
-22,
38,
11,
-40,
8,
41,
77,
-20,
14,
-8,
37,
-53,
57,
-6,
-29,
-47,
-14,
-38,
-38,
3,
9,
-22,
6,
-26,
-21,
6,
-16,
-1,
-75,
-31,
-58,
11,
-27,
10,
-37,
-17,
32,
-50,
10,
18,
10,
5,
23,
-32,
12,
24,
-38,
5,
55,
5,
-20,
-33,
-31,
54,
8,
-57,
25,
-16,
-31,
13,
37,
-31,
-31,
-44,
38,
1,
15,
-44,
-4,
-30,
66,
16,
-15,
-9,
-12,
32,
-30,
15,
38,
-15,
-27,
-3,
-17,
-7,
-16,
11,
-1,
-21,
-27,
-12,
-4,
-30,
-2,
18,
-40,
29,
7,
-37,
22,
44,
8,
-33,
43,
30,
5,
13,
-24,
-7,
51,
-9,
-9,
-24,
15,
-61,
18,
20,
0,
-17,
-6,
-1,
-17,
42,
18,
25,
35,
-7,
-1,
23,
4,
-43,
29,
-8,
10,
25,
13,
16,
-10,
35,
-4,
-47,
0,
-17,
-27,
-31,
57,
38,
-3,
-16,
-37,
21,
47,
-15,
26,
-57,
22,
-17,
44,
-39,
-23,
25,
1,
13,
63,
-10,
26,
60,
3,
68,
31,
-9,
24,
-19,
-8,
-37,
-29,
22,
34,
5,
33,
23,
6,
22,
-3,
-17,
16,
-18,
-17,
23,
35,
18,
2,
0,
47,
20,
16,
-7,
19,
86,
23,
-44,
22,
-25,
12,
12,
14,
26,
-42,
-9,
34,
30,
-13,
-69,
24,
66,
-4,
-27,
-34,
-43,
-37,
9,
-1,
-39,
-37,
-83,
-21,
3,
24,
29,
26,
-58,
3,
-71,
-26,
-37,
52,
-10,
19,
-18,
17,
-8,
18,
-24,
-70,
55,
-50,
2,
-50,
-31,
-34,
1,
44,
5,
13,
-22,
-37,
15,
7,
-4,
20,
31,
47,
-37,
-7,
-37,
-8,
-1,
-26,
3,
21,
28,
-38,
37,
-12,
16,
-33,
24,
8,
2,
16,
-11,
-2,
5,
-51,
-26,
12,
24,
-24,
52,
-17,
-2,
-4,
25,
-14,
22,
-3,
-18,
19,
17,
-9,
16,
-45,
2,
3,
20,
29,
37,
8,
42,
26,
-43,
14,
-10,
23,
32,
-24,
18,
29,
-24,
14,
20,
0,
-2,
26,
-26,
37,
-4,
13,
34,
-7,
-29,
23
] |
Per Curiam.
This proceeding was instituted before the Workmen’s Compensation Department. It presents exclusively the same jurisdictional question which, in Mead v. Peterson-King Co. (1970), 24 Mich App 530, 533, 534, was dealt with by Division 3 as the “first issue on appeal.” By our order of August 26, 1970, entered upon application for leave to review Mead, the latter was held in abeyance pending decision of the appeal now at bar.
February 13, 1959 Harold Modeen, a regular employee of self-insuring Consumers Power Co., sustained a compensable injury arising out of and in the course of his employment. He engaged counsel (Sessions & Barlow of Muskegon) to sue certain allegedly negligent third parties, pursuant to the 1952 amendment of § 15 of part III of the workmen’s compensation law (MCLA 413.15 [Stat Ann 1968 Rev § 17.189]). By agreement of employee Modeen and employer Consumers, the latter did not join in the suit but did cooperate fully with Mr. Modeen in the prosecution thereof. It is stipulated that, as the suit neared trial, “ # * # a settlement was reached between Mr. Modeen and Consumers Power Co. on one side and certain of the defendants [Wilde and Reeths] for a total of $75,000.” May 15, 1961 the suit as against defendants Wilde and Reeths was dismissed with prejudice upon stipulation and order of the court. Separately and on the same date the remaining defendant was correspondingly dismissed, apparently without monetary contribution. Excepting as noted in this opinion, all details of the agreed settlement and final disposition of the suit appear in the appeal board’s opinion, quoted post.
The general release of third-party defendants Wilde and Reeths was signed by Mr. Modeen and also by his wife. She is the present plaintiff. The release is in the usual unconditional form and needs no expatiation. The release by Consumers Power Co. of the same defendants was executed and delivered separately. Consumers’ May 22, 1961 letter to Sessions & Barlow, by which Consumers paid its agreed share of “attorneys fees and expenses” incurred in connection with the third-party suit, reads as follows:
“Gentlemen:
“Enclosed, pursuant to our agreement, is Consumers Power Company’s check No. 767, dated May 18, 1961, made payable to Sessions & Barlow, in the amount of $3,450.08.
“This check is in full payment of Consumers Power Company’s share of attorneys’ fees and expenses in the above matter.”
Mr. Modeen died in 1966 from causes not related to his compensable injury. Shortly thereafter his widow engaged present counsel to file the instant application for claimed benefits under the workmen’s compensation law, “requesting apportionment of the costs of the third-party recovery week by week against the employer.” The opinion of the appeal board, on review of denial by the referee of the plaintiff’s application, proceeded to affirmance this way:
“Plaintiff suffered a personal injury that arose out of and in the course of his employment on 2-13-59, and received compensation voluntarily paid at the rate of $40.00 per week until 4-22-61, when a third-party settlement in the total amount of $75,000.00 was concluded. Workmen’s compensation and medical expenses paid by defendant amounted to $11,450.08 leaving a gross sum of $63,549.92 against which was charged attorney fee of $16,678.09, and other expenses of recovery of $121.34. Thus, attorney fees and other expenses of recovery amounted to 26.4% of the third-party settlement proceeds. Defendant had already paid $3,321.91 on his [its] share of the total expenses of recovery, including attorney fees, amounting to $20,121.34.
“After the third-party settlement, plaintiff remained totally disabled until the date of his death on 8-21-66, of causes unrelated to his personal injury of 2-13-59.
“Upon plaintiff’s death, his widow filed a petition for hearing which the referee denied and credited defendant for compensation voluntarily paid.”
Then, having quoted portions of § 15 with emphasis of the sentence:
“ ‘The expenses of recovery above mentioned shall be apportioned by the court between the parties as their interests appear at the time of said recovery.’ ”;
the board went on to rule, in praiseworthy compendium :
“This Board not being the ‘Court’ mentioned in the Statute does not have the power to ‘apportion’ the ‘expenses of recovery.’ ”
May 14, 1969 the Court of Appeals denied leave to appeal, ruling “lack of merit in the grounds presented.” This Court, being informed of the upcoming pendency of the Mead case, supra, granted leave to review July 15, 1969 (382 Mich 769).
No question of Mrs. Modeen’s right if any to dependency benefits, under the workmen’s compensation law, is involved. Today’s issue is sharp; whether in the light of the arms-length settlement agreed to under the statute, both by the employee and his widow with the assistance of able counsel, the department is vested with jurisdiction to provide for the plaintiff widow more “apportionment” than she and her husband obtained when they signed off in May of 1961. To provide due understanding of the contention we quote plaintiff’s counsel directly:
“In a nutshell what plaintiff wants is to be reimbursed for the cost of recovery of each week’s credit the employer takes as it is taken, surely not an exorbitant and preposterous request. Our problem is that although our request seems reasonable we can’t find a forum to make it in.” (Emphasis supplied by counsel.)
Then, having referred to the appeal board’s presently quoted opinion and to said § 16, counsel proceed:
“The Workmen’s Compensation Appeal Board members are reluctant to assert its authority in this situation; they feel they are not a ‘Court’ (which is true) and they apparently feel that this ongoing apportionment of the recovery is reserved by the statute to a ‘Court’ (which we feel is not true). Thus, the tribunal charged by law with responsibility for determination of all other compensation problems is diffident about asserting its authority in this one. Hence our problem.”
To “find a forum to make it in” counsel rely particularly upon § 16 of part III of the statute. The section read, originally (CL 1915, § 5469):
“Sec. 16. All questions arising under this act, if not settled by agreement by the parties interested therein, shall, except as otherwise herein provided, be determined by the industrial accident board.”
The pertinent part of the section reads now (MCLA § 413.16 [Stat Ann 1960 Bev § 17.190]):
“Sec. 16. All questions arising under this act shall be determined by the compensation commission.”
Agreeing with the appeal board’s jurisdictional decision, we find that an available measure of long since recorded judicial thought tends to expose with clarity the purpose of the legislature when, by § 15, that body undertook to provide a means for determination of questions of apportionment of fees and expenses when such questions arise out of litigation instituted under § 15. Utilizing the same or correspondingly certain language, and starting with 1915 Mackin v. Detroit-Timkin Axle Co., 187 Mich 8, this Court has repeatedly advised the legislature as well as the profession that the former industrial accident board, now the appeal board, is not a “court” and “is not possessed of judicial power.” Attest, among others: Jones v. St. Joseph Iron Works (1920), 212 Mich 174; Bankers Trust Co. of Detroit v. Tatti (1932), 258 Mich 357; Michigan Mutual Liability Company v. Baker (1940), 295 Mich 237; Dation v. Ford Motor Co. (1946), 314 Mich 152, and Bonney v. Citizens’ Mutual Automobile Insurance Company (1952), 333 Mich 435.
In the last cited case, having referred to Dation, the Court stated correctly the view we take of plaintiff’s attempt to employ the department for determination of a question the legislature has vested exclusively with the circuit court. To quote Bonney, at 440:
“The statutory grant of exclusive jurisdiction to the workmen’s compensation commission does not deprive a court of the jurisdiction to determine rights arising out of an entirely different relation ship and in an entirely different type of proceeding in which the employer and employee relationship is only incidentally involved.”
To recapitulate:
Amended § 15 was designed to provide a new right of action which, prior to effectiveness of the amendment, was unknown excepting when the suing employee was willing to assume the risk of a binding “election” of remedy. The new right had to be exercised, however, under and pursuant to the amendment, for within its jurisdictional four corners lay all of the benefits intended. Nowhere except in the forum provided by § 15 does the workmen’s compensation law, or any other law, authorize apportionment of these “expenses of recovery.” That by the second paragraph of the section is definitely made a matter for agreed settlement of “claims as their interest shall appear” or, failing that, for judicial determination — under the next to last paragraph — by the court in which the plaintiff’s action is pending.
The plaintiff widow, whose rights if any under the workmen’s compensation law were and are derivable through her husband, took part in the agreed settlement. That settlement was made in view of the institution and pendency of her husband’s suit. Presumably, she partook of the not exactly niggard fruits thereof. A part of such fruits was the stipulated and paid sum of $3,450.08, as and for an agreed apportionment of “expenses of recovery.” No fraud, mistake, or other judicially cognizable right having been claimed, or shown, plaintiff’s husband was as much bound by the apportionment, and by the paid amount thereof, as if that apportionment had been determined by the court at the time under the penultimate paragraph of § 15. So was his wife, and so is his widow. There remains no forum for determination or redetermination of what then was validly done and effected by monetary distribution.
Affirmed, no costs.
T. M. Kavanagh, C. J., and Black, Adams, T. E. Brennan, T. Gf. Kavanagh, Swainson, and Williams, JJ., concurred. | [
1,
-2,
20,
58,
-27,
20,
19,
-50,
-5,
-56,
6,
-17,
38,
16,
2,
-27,
33,
6,
-22,
-2,
5,
-32,
44,
32,
-25,
-51,
4,
7,
3,
-24,
5,
13,
24,
2,
-36,
-31,
20,
34,
-55,
8,
-19,
-6,
22,
-42,
-7,
-12,
34,
-4,
23,
-34,
13,
20,
-12,
-10,
55,
-49,
24,
27,
-42,
-1,
-36,
30,
21,
71,
22,
7,
19,
-4,
64,
-20,
18,
-16,
-18,
81,
41,
15,
3,
43,
22,
-52,
-15,
-23,
37,
-17,
-16,
3,
-2,
23,
23,
22,
-10,
25,
-8,
0,
21,
1,
-9,
-34,
5,
16,
-23,
-57,
-32,
9,
42,
-16,
5,
0,
-4,
85,
-15,
21,
-15,
19,
-47,
-18,
-4,
-26,
11,
-2,
0,
9,
-1,
39,
-16,
11,
-28,
-19,
-14,
29,
4,
38,
44,
-43,
64,
34,
48,
-50,
-24,
-21,
-27,
64,
-18,
-35,
-24,
-4,
-7,
19,
-5,
0,
0,
26,
53,
25,
-17,
-35,
16,
-66,
75,
11,
-1,
-5,
-63,
6,
-27,
-37,
40,
-9,
17,
9,
-27,
-19,
20,
-15,
55,
-3,
51,
16,
-57,
57,
-19,
-16,
16,
25,
-41,
-7,
-48,
-14,
20,
-3,
32,
-21,
-25,
15,
-20,
31,
-8,
25,
20,
-7,
23,
-72,
-32,
-4,
11,
-20,
74,
-38,
10,
16,
-10,
24,
-5,
-73,
-19,
13,
-2,
4,
-16,
-4,
-2,
12,
-15,
-44,
-70,
-43,
27,
-14,
-20,
-16,
-16,
85,
40,
37,
-21,
8,
22,
5,
53,
-21,
9,
-40,
-35,
-25,
-10,
-3,
-44,
-48,
-21,
12,
0,
-36,
36,
40,
-31,
-8,
-34,
62,
4,
-27,
37,
1,
-34,
23,
-10,
-53,
2,
6,
-14,
5,
-23,
25,
44,
6,
-9,
-57,
-27,
32,
44,
11,
-5,
5,
5,
-46,
2,
-14,
25,
-23,
7,
-19,
62,
8,
-16,
-56,
50,
34,
-44,
-22,
10,
-1,
-71,
0,
-13,
-36,
39,
49,
-45,
25,
4,
-2,
-47,
2,
23,
-63,
21,
-5,
-46,
20,
33,
-35,
-8,
-11,
3,
-20,
-34,
-22,
0,
7,
35,
-26,
-53,
25,
-17,
-41,
-26,
-27,
-7,
-4,
5,
-19,
9,
-26,
-12,
20,
-78,
-9,
40,
4,
28,
-34,
-44,
-26,
3,
-2,
-15,
38,
46,
-35,
-38,
1,
-4,
-12,
-50,
-24,
-54,
27,
-16,
-11,
39,
45,
-36,
6,
-23,
-7,
-72,
19,
1,
22,
-64,
11,
29,
-24,
23,
3,
-22,
27,
-36,
33,
-91,
-3,
11,
-41,
24,
45,
44,
10,
13,
-38,
-41,
19,
37,
14,
1,
3,
29,
1,
20,
-27,
27,
11,
32,
-26,
35,
0,
5,
-14,
58,
-31,
6,
2,
56,
0,
-38,
12,
-1,
-31,
51,
53,
-22,
30,
-2,
-12,
-4,
-28,
9,
6,
-2,
-18,
-48,
19,
-47,
-24,
20,
0,
10,
26,
-19,
-2,
70,
-21,
-6,
29,
2,
58,
-33,
17,
-22,
-27,
20,
-55,
-12,
35,
32,
-22,
25,
-20,
-8,
33,
14,
24,
-7,
25,
14,
23,
-15,
-22,
13,
-23,
21,
-7,
0,
1,
17,
-36,
-12,
-2,
3,
-45,
27,
21,
59,
8,
28,
-10,
9,
-26,
-30,
-4,
-27,
-16,
12,
-87,
44,
-33,
69,
-2,
7,
-5,
-25,
24,
-22,
-9,
15,
10,
56,
28,
-18,
1,
2,
8,
-25,
-16,
-21,
-3,
0,
-6,
5,
5,
41,
-65,
-21,
-24,
-1,
-74,
10,
-9,
-33,
-9,
-45,
-45,
13,
43,
16,
29,
25,
19,
-9,
3,
48,
4,
-40,
-9,
1,
21,
1,
2,
22,
-17,
23,
26,
-8,
22,
33,
3,
-8,
21,
-38,
8,
38,
-24,
9,
31,
32,
29,
26,
9,
-27,
-47,
7,
-8,
9,
-13,
1,
-45,
-23,
-53,
38,
13,
27,
-58,
11,
-4,
-2,
-4,
47,
16,
10,
-44,
15,
20,
-33,
25,
-30,
-10,
40,
33,
-41,
50,
-3,
-20,
6,
46,
65,
-44,
-1,
-52,
28,
-34,
15,
3,
68,
-2,
15,
-14,
14,
-15,
0,
-40,
-37,
22,
16,
-15,
-70,
-28,
31,
4,
29,
47,
2,
63,
25,
-31,
-11,
-18,
-25,
-7,
-13,
52,
-14,
-20,
-13,
-11,
35,
-11,
-32,
-2,
0,
3,
-4,
-18,
-41,
3,
-45,
9,
-34,
0,
-8,
-20,
21,
-10,
68,
-29,
48,
42,
15,
-62,
0,
1,
-6,
48,
0,
-2,
28,
-11,
-21,
65,
7,
10,
-12,
-28,
-46,
37,
-67,
-58,
-16,
5,
58,
-8,
-9,
-41,
-11,
62,
21,
-16,
-33,
31,
-15,
-33,
8,
29,
20,
-20,
-29,
-48,
18,
65,
6,
-5,
7,
-58,
-15,
-64,
-13,
-14,
3,
68,
-20,
-1,
-54,
-3,
-26,
-10,
-8,
31,
-8,
36,
3,
-18,
-59,
15,
36,
21,
-3,
41,
-19,
19,
-22,
9,
27,
32,
-21,
-17,
20,
-11,
10,
-11,
-10,
20,
-8,
17,
-1,
13,
3,
-16,
11,
-13,
-11,
-31,
2,
-32,
-15,
1,
7,
-20,
19,
10,
51,
-20,
0,
7,
-2,
-20,
27,
33,
4,
-24,
41,
-14,
2,
18,
-35,
-54,
30,
-54,
-20,
31,
36,
-30,
-21,
-11,
0,
20,
-3,
-10,
-28,
-19,
-10,
16,
27,
-31,
-7,
-34,
2,
10,
28,
27,
-15,
-4,
-3,
-10,
-7,
3,
6,
23,
-17,
-29,
39,
2,
8,
-3,
-7,
31,
-70,
43,
25,
31,
9,
-55,
11,
22,
-11,
-24,
-48,
25,
42,
22,
21,
23,
58,
-11,
6,
-36,
22,
49,
0,
24,
-96,
-22,
-11,
3,
24,
30,
-40,
47,
-12,
-34,
-44,
12,
-7,
-2,
-30,
3,
21,
-66,
-12,
10,
-32,
-32,
41,
-45,
-36,
-36,
22,
-79,
22,
-12,
59,
48,
-34,
29,
-3,
15,
13,
16,
13,
-45,
-14,
-12,
16,
-29,
8,
59,
18,
24,
-2,
-4,
0,
-11,
-23,
31,
36,
-34,
11,
-6,
-9,
-12,
8,
36,
32,
31,
6,
6,
-19,
0,
4,
15,
2,
-16,
-13,
36,
-4,
-51,
13,
13,
85,
22,
-7,
-39,
-30,
-47,
13,
-5,
-22,
-27,
-25,
-35,
11,
8,
7,
69,
-2,
-2,
31,
9,
-36,
-26,
9,
-17,
3,
47,
-41,
50,
32,
-25,
2,
-11,
16,
-23,
5,
-15,
39,
1,
-5,
-31,
5,
-2,
11,
-3,
14,
10,
8,
12,
5,
20,
-16,
11,
-39,
-14,
-21,
-3,
-11,
18,
35,
10,
22,
6,
-8,
4,
41,
-16,
20,
12,
-6,
-1,
-21,
21,
38,
14,
45,
14,
-51,
7,
21,
-24,
52,
42,
-26,
-23,
15,
-46,
3,
9,
-23,
-8
] |
Swainson, J.
Roman Nowicki, appellant herein, was served with a subpoena at 7:10 p.m., on July 10, 1967, commanding him to appear at the grand jury courtroom, 2d floor, Courthouse Towers, 1200 North Telegraph Road, in the City of Pontiac, on the 11th day of July, 1967, at 11 a.m. He did not appear pursuant to the subpoena, and at 10:04 a.m., on July 12, 1967, an order to show cause was issued by the grand juror, Hon. James S. Thorburn, directing that the said Roman Nowicki appear before him on July 17, 1967, at 9 a.m., to show canse “why he should not he adjudged in contempt of this court.”
A hearing was held on July 17, 1967, the defendant then being present, and the court imposed the following sentence:
“Roman Nowicki, it is the sentence of this Court that you, having been found in contempt of this Court, and having had a public hearing, shall be punished by a fine of $1000 and imprisonment in the county jail not exceeding one year. This is the order of the Court.”
Thereafter, on August 14, 1967, Roman Nowicki again appeared before the court, and at the conclusion of the hearing, the court found:
“Nevertheless, he has come forward and attempted to purge himself. Under the circumstances the Court is going to, in conformance with the statute and the language of the statute, commute the defendant Roman Nowicki’s sentence. It was heretofore a sentence of one year, from July 11, 1967 and $1000 fine. The Court is going to commute that sentence to one of 90 days from this date, the 90 days to be in addition to the days now served since July 11,1967, and the fine shall be commuted and reduced to $500.
“This judicial inquiry and the constitution and laws of the State of Michigan have been flaunted and successfully frustrated because of the delay involved. For these reasons the Court will sign an order to that effect.”
Defendant Nowicki was returned to the Oakland County jail to serve the sentence of imprisonment.
The grand jury investigation terminated on August 17, 1967, and the Hon. James S. Thorburn refused the request of defendant’s counsel to order the release of defendant Nowicki from the Oakland County jail.
The Michigan Court of Appeals (Levin, P. J., and Burns and Dalton, JJ.) affirmed. A subsequent application for rehearing was denied, and application for leave to appeal was granted by this Court (383 Mich 768).
We have considered matters arising out of similar circumstances in recent years, and to repeat the discussions at this time will serve no instructive purpose. See People v. Joseph (1970), 384 Mich 24; People v. Johns (1971), 384 Mich 325, and In re Colacasides (1967), 379 Mich 69.
We stated in People v. Johns, supra, p 333, and reaffirm at this time:
“When the hearing was instituted by a show cause order and placed on the civil docket, when the proceedings lacked any semblance of a criminal trial and when the sentence had elements of both civil and criminal contempt the defendant could have reasonably expected that he indeed was being held in civil contempt.
“We therefore hold that under the procedure followed here, the defendant could not have been found guilty of criminal contempt and his sentence for such must be vacated.
“Likewise since the opportunity for punishment for civil contempt expired with the grand jury, we hold the defendant must be discharged.”
It is important to note that we are again not dealing with direct contempts committed in the view and presence of the court, which may be dealt with summarily.
We again reiterate that conviction for criminal contempt can be sustained only upon a record which shows compliance with the procedural safeguards established for the prosecution of any other crime of equal gravity.
Reversed. Defendant discharged.
T. M. Kavanagh, C. J., and Adams, T. E. Brennan, T. Gr. Kavanagh and Williams, JJ., concurred with Swainson, J.
People v. Nowicki (1969), 17 Mich App 525. | [
7,
6,
-8,
1,
-25,
-11,
-25,
-21,
-34,
22,
60,
-22,
4,
-30,
46,
-30,
0,
-6,
37,
-21,
-1,
-21,
39,
-20,
7,
24,
-73,
41,
-26,
-57,
11,
-30,
34,
-21,
-3,
-52,
39,
-75,
35,
4,
3,
0,
-51,
31,
-5,
-58,
15,
5,
7,
-30,
-2,
23,
-33,
25,
41,
1,
-10,
-18,
39,
-10,
-7,
12,
-25,
18,
-76,
-23,
10,
6,
37,
31,
25,
-13,
24,
31,
8,
101,
-30,
4,
39,
66,
7,
-5,
-29,
34,
-21,
-11,
-16,
-43,
-23,
11,
-10,
18,
-63,
0,
8,
-31,
-5,
-11,
-19,
-28,
-18,
11,
17,
-20,
20,
16,
33,
-44,
-32,
-15,
36,
7,
53,
-10,
-23,
-43,
-37,
7,
-21,
-23,
9,
9,
31,
-12,
-50,
-10,
9,
-24,
51,
-13,
3,
16,
5,
-33,
-9,
50,
-11,
-2,
38,
35,
-16,
18,
2,
-2,
45,
-43,
25,
2,
33,
29,
-45,
-29,
13,
25,
-44,
28,
10,
-16,
-2,
44,
-22,
-31,
9,
-42,
-5,
0,
-31,
25,
6,
18,
17,
11,
20,
-5,
-43,
-59,
-9,
-3,
12,
8,
-15,
26,
-23,
-56,
22,
10,
-6,
-35,
48,
-41,
44,
32,
14,
12,
13,
39,
21,
10,
17,
-12,
-26,
27,
24,
20,
3,
-28,
88,
-6,
6,
2,
-50,
-50,
19,
-6,
-51,
-3,
-34,
4,
3,
10,
-4,
-15,
10,
12,
-4,
31,
28,
58,
-6,
-15,
66,
36,
-9,
-29,
-3,
-20,
-22,
0,
4,
29,
-57,
-60,
-10,
16,
53,
42,
-39,
41,
11,
15,
50,
2,
12,
-58,
-34,
9,
10,
-20,
-35,
55,
-38,
-14,
-27,
58,
-4,
6,
27,
17,
-16,
-26,
-9,
36,
-4,
-29,
3,
-7,
16,
45,
11,
7,
0,
-42,
-32,
47,
-6,
36,
36,
-20,
-41,
-30,
-25,
10,
-1,
17,
32,
7,
-7,
-26,
-12,
35,
25,
3,
-45,
18,
-28,
-14,
0,
-30,
-35,
29,
32,
-28,
-17,
20,
36,
-28,
-34,
10,
42,
0,
-19,
14,
-68,
-14,
-15,
19,
3,
-3,
30,
-41,
28,
-25,
-36,
-15,
0,
12,
7,
-13,
-20,
-3,
5,
-51,
-29,
18,
-8,
8,
-9,
74,
-26,
-2,
-13,
48,
-11,
25,
-50,
2,
-24,
-10,
8,
-29,
45,
-10,
-43,
36,
5,
-9,
-16,
-7,
37,
60,
6,
-30,
-32,
16,
-9,
16,
-53,
-18,
-29,
52,
-15,
12,
-14,
-9,
-12,
-13,
-32,
-1,
3,
-13,
1,
42,
21,
7,
0,
19,
-5,
40,
8,
68,
-20,
-5,
-23,
46,
-8,
-22,
-18,
7,
66,
-42,
36,
-13,
21,
36,
14,
1,
35,
-21,
-33,
-84,
-24,
15,
65,
-30,
29,
-23,
-29,
6,
76,
42,
40,
-14,
32,
-12,
5,
52,
-49,
-23,
0,
-25,
-10,
24,
-4,
23,
21,
-7,
-37,
-21,
34,
15,
17,
-16,
11,
-18,
-5,
28,
10,
42,
15,
57,
-32,
-77,
-41,
-40,
-13,
17,
-30,
12,
7,
42,
-7,
45,
30,
42,
-72,
-15,
-23,
-16,
39,
11,
8,
34,
-32,
-16,
-16,
-20,
-23,
-49,
-11,
-7,
-47,
6,
-8,
34,
34,
10,
-39,
15,
10,
1,
-30,
13,
-8,
39,
19,
-23,
48,
-22,
-3,
19,
23,
16,
-9,
19,
-53,
-33,
30,
0,
42,
13,
-57,
-5,
3,
1,
-13,
0,
18,
-32,
-23,
-52,
28,
-22,
51,
-8,
33,
-38,
-14,
-74,
-5,
-19,
2,
-4,
-2,
-18,
26,
-44,
-9,
-86,
-1,
18,
11,
-4,
-22,
-57,
7,
-4,
3,
6,
-28,
-4,
31,
-15,
55,
-17,
35,
-14,
-39,
-13,
-6,
14,
50,
56,
36,
42,
29,
27,
16,
20,
-14,
63,
7,
7,
11,
44,
22,
-19,
-42,
-36,
-24,
24,
-25,
40,
0,
5,
-2,
-9,
-4,
-4,
29,
-43,
43,
23,
18,
28,
44,
14,
-11,
22,
-8,
2,
1,
57,
-17,
-5,
-9,
52,
-46,
-11,
-27,
42,
-3,
-27,
46,
-15,
23,
-16,
10,
-27,
-58,
-28,
-35,
-20,
-17,
27,
24,
-10,
0,
-22,
-25,
18,
-31,
13,
-6,
-24,
55,
-28,
-23,
-17,
-44,
-2,
-2,
30,
10,
5,
-1,
-68,
14,
6,
45,
-14,
22,
15,
-35,
45,
-40,
13,
-33,
4,
35,
22,
-5,
-31,
49,
-25,
13,
-35,
25,
-9,
-2,
27,
0,
12,
-13,
-37,
-10,
-19,
-8,
-11,
13,
-37,
-38,
29,
-14,
58,
49,
-18,
40,
2,
0,
26,
-27,
-9,
-7,
8,
-33,
10,
5,
-31,
38,
-29,
-17,
8,
-6,
47,
-17,
21,
20,
13,
-47,
37,
-13,
-41,
-16,
26,
12,
-5,
-40,
6,
0,
0,
20,
-1,
27,
-3,
-2,
-8,
-57,
-26,
-46,
37,
-29,
-38,
-38,
-77,
30,
-13,
13,
-11,
-36,
-27,
0,
0,
21,
29,
-21,
41,
17,
-20,
-65,
-4,
-36,
17,
40,
2,
-10,
17,
6,
20,
62,
-35,
-58,
-67,
-15,
-26,
-38,
34,
-40,
0,
7,
-65,
-9,
35,
-27,
-22,
-19,
-21,
-19,
9,
-31,
40,
-22,
-121,
10,
-14,
-11,
-9,
21,
6,
37,
11,
38,
17,
32,
15,
1,
3,
9,
-39,
22,
20,
13,
104,
17,
-38,
-1,
-29,
-35,
-1,
26,
46,
-3,
-14,
-14,
-2,
-20,
4,
-16,
-8,
12,
-15,
41,
44,
-27,
49,
-29,
-42,
5,
-16,
-29,
30,
56,
-2,
-17,
30,
-51,
17,
-1,
37,
-14,
-25,
24,
34,
-52,
-16,
-55,
5,
-1,
2,
-1,
5,
-49,
4,
-17,
-58,
-7,
51,
26,
-17,
16,
18,
40,
-2,
0,
40,
-23,
-3,
-9,
-36,
-8,
-60,
0,
0,
53,
-49,
-9,
7,
15,
-54,
-31,
6,
1,
55,
4,
-24,
17,
40,
4,
4,
-23,
16,
38,
41,
24,
-38,
8,
-22,
3,
36,
4,
3,
-24,
-1,
-10,
38,
-49,
-30,
-19,
25,
36,
-24,
4,
1,
18,
81,
-8,
-49,
8,
-43,
-39,
29,
17,
-16,
-63,
-47,
-18,
-21,
37,
-57,
61,
-4,
-19,
-16,
-59,
-9,
70,
7,
-10,
4,
57,
0,
0,
-33,
-12,
2,
37,
-1,
9,
-28,
40,
-3,
-25,
35,
7,
-6,
-14,
14,
4,
22,
4,
23,
-13,
1,
-74,
-11,
-18,
-10,
50,
54,
7,
-42,
-8,
-21,
-10,
21,
53,
-40,
45,
-38,
-36,
3,
-12,
14,
-42,
32,
-9,
20,
0,
-61,
-20,
47,
13,
22,
5,
20,
67,
-9,
3,
-6,
1,
39,
7,
-7,
-4,
-11,
13,
26,
6,
-13,
-18,
18,
-24,
31,
38,
32
] |
Per Curiam.
Defendant Mosden and another were tried together and convicted of armed robbery. This is defendant Mosden’s appeal, on leave granted, from Court of Appeals’ denial of application for delayed appeal from recorder’s court of the city of Detroit denial of his application for leave to file a delayed motion for new trial.
Defendant mentions, sketchily in his brief, that' police officers were permitted to testify concerning exculpatory statements made by him shortly after his arrest. He claims that this testimony should have been excluded because he had not been apprised of his constitutional rights to remain silent, to assistance of counsel, et cetera. He makes the kind of argument which is based on Escobedo v. Illinois (1964), 378 US 478 (84 S Ct 1758, 12 L Ed 2d 977) and Miranda v. Arizona (1966), 384 US 436 (86 S Ct 1602, 16 L Ed 2d 694, 10 ALR2d 974), having application only to inculpatory statements. Defendant was represented by counsel at trial, but no objections were made to reception of this testimony. The trial occurred in January of 1964 before the decision in Escobedo, on June 22, 1964, and the Miranda decision, on June 13, 1966. Those decisions were not retroactive. Johnson v. New Jersey (1966), 384 US 719 (86 S Ct 1772, 16 L Ed 2d 882). We cannot reverse on this ground.
In connection with consideration of the application for leave to appeal here, attention was directed to a claim that the people were allowed to introduce into evidence written reports of the police officers’ surveillance of defendants before and at the time of the robbery, prepared by the officers after the fact from fragmentary notes made during the surveillance but subsequently destroyed. This bears resemblance to facts in the case of People v. Hobson (1963), 369 Mich 189. Defendant’s brief now before us on this appeal makes no mention of this point, however, so we may conclude he has abandoned it. Furthermore, while in Hobson the surveillance reports were introduced into evidence, that does not appear to have occurred here, but the notes were used only to enable the police officers, while testifying, to refresh their recollections. Ground for reversal is not presented in this connection.
Defendant’s brief is chiefly devoted to a discussion of evidentiary matters and conflicts of testimony. Defendant styles his conviction as one based on circumstantial evidence, and offers, for the benefit of this Court, a jury argument as to why he ought not to have been found guilty under the evidence. Determination of the factual questions was definitely a function for the jury, not the trial court on motion for new trial nor this Court on appeal. We find there was testimony which, if believed by the jury, as it apparently was, warranted a finding of defendant’s guilt beyond a reasonable doubt. We cannot reverse on this ground.
A more serious question is presented in connection with denial of defendant’s delayed motion for new trial or application for leave to file a delayed motion therefor. Whichever it may be termed, it was based in part on a claim of newly discovered evidence. It was predicated on an affidavit of a Jackson State prison inmate, named Blackwell, in which the latter confessed commission of the robbery in question and completely absolved defendant from any participation therein.
On March 2, 1966, a hearing was held before a recorder’s court judge on the motion. Defendant was represented by court-appointed counsel. That attorney requested the opportunity of subpoenaing witnesses for defendant, including Blackwell. The request was refused and the hearing proceeded as on a motion for new trial. Police officers testified to discredit Blackwell’s affidavit on the grounds that Blackwell’s story was not complete, that he was a person of low moral character who could readily confess a crime he had not committed and in their opinion he was not worthy of belief. There is no evidence that he knew defendant or that, at the time of making the statement, knew defendant had been convicted of the crime, or that he had any reason to be for defendant. The police officers’ testimony did not refute any specific facts or allegations in Blackwell’s affidavit.
In Townsend v. Sain (1963), 372 US 293, 312, 313 (83 S Ct 745, 757, 9 L Ed 2d 770, 785, 786), the United States Supreme Court said:
“Where the facts are in dispute, the Federal court in habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a State court, either at the time of the trial or in a collateral proceeding. In other words a Federal evidentiary hearing is required unless the State-court trier of fact has after a full hearing reliably found the relevant facts. * * #
“We hold that a Federal court must grant an evidentiary hearing to a habeas applicant under the following circumstances: If (1) the merits of the factual dispute were not resolved in the State hearing; (2) the State factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the State court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the State-court hearing; or (6) for any reason it appears that the State trier of fact did not afford the habeas applicant a full and fair fact hearing.”
Under the above from Townsend v. Sain, supra, it seems clear that upon denial of further relief in this case in State courts, a Federal court, on application for habeas corpus, Avould be constrained to do what the trial court in this case did not do, namely, permit a full and fair hearing on Blackwell’s confession and absolving of defendant, with defendant permitted to bring in Blackwell as a witness to testify on the subject. For us to require less would hardly square with due process or the holding in Townsend, supra.
We are not unaware of the decision of this Court in People v. Czarnecki, 241 Mich 696, handed down in 1928, long before the 1963 decision of the United States Supreme Court in Townsend v. Sain, supra. Czarnecki is, at all events, distinguishable from the instant case in that there the defendant did not, as here, seek to have the absolving prison inmate brought into court to testify in his behalf at the hearing, nor did the trial court indicate in any way that such request would have been denied. Thus the question in the instant case as to Avhether such denial is error was not there involved. Also, testimony of an officer in CsarnecM disclosed that the would-be absolver was unable to give vital information which would have been known to him had he actually perpetrated the robbery in question, thus tending to refute the truth of his confession. No such testimony came from officers in this case. Furthermore, this Court in that case stated that it was no more impressed by the convict’s affidavit than Avas the trial judge. There is nothing here upon which such conclusion by this Court could be based if it were a proper function of this Court to do so at all. As of now, we are not overly impressed by what this Court said in this connection in that case.
The case is remanded to the recorder’s court, for appointment of counsel if defendant desires, inas much as he has been found by that court to be an indigent, and for hearing on defendant’s motion for new trial with defendant permitted to subpoena and bring in relevant witnesses, including Blackwell as a witness on defendant’s claim of newly discovered evidence, so that there now may be a full and fair evidentiary hearing and determination by the trial court of whether a new trial should be granted.
Dethmers, Kelly, T. M. Kavanagh, and Adams, JJ., concurred.
OLS 1961, § 750.529 (Stat Ann 1968 Cum Supp § 28.797).—Re-PORTER.
See 379 Mich 763.—Reporter. | [
7,
-21,
23,
1,
-25,
-52,
-65,
-16,
6,
54,
29,
0,
23,
-16,
4,
-14,
31,
-37,
18,
-19,
-29,
-33,
0,
-1,
-2,
-60,
10,
73,
-21,
-1,
-22,
-27,
41,
-50,
0,
-5,
63,
50,
-17,
11,
-4,
-31,
14,
-40,
-55,
-30,
15,
5,
-21,
-10,
64,
25,
-22,
15,
-34,
3,
32,
-17,
49,
19,
-26,
59,
-14,
1,
-15,
23,
-4,
27,
-36,
-34,
-17,
-17,
-9,
-18,
12,
-29,
12,
42,
52,
18,
17,
3,
34,
-14,
-4,
-15,
0,
-56,
13,
-8,
13,
-23,
-23,
-31,
-7,
19,
58,
2,
10,
11,
-33,
34,
-3,
-7,
29,
-10,
-36,
-14,
32,
-52,
-15,
29,
37,
-27,
-36,
-13,
-22,
-9,
-47,
-38,
14,
15,
40,
34,
14,
5,
0,
-47,
4,
10,
6,
34,
35,
0,
0,
16,
64,
-20,
-6,
-10,
-31,
5,
24,
-54,
10,
-11,
-8,
-12,
7,
32,
12,
-5,
-14,
4,
11,
15,
-15,
-31,
-12,
19,
0,
31,
-57,
-15,
11,
24,
-36,
-39,
12,
-29,
4,
8,
39,
-15,
-17,
-31,
-49,
51,
7,
-7,
1,
30,
4,
-24,
-24,
-41,
-43,
9,
24,
15,
11,
14,
17,
3,
83,
34,
-20,
44,
21,
-31,
16,
19,
46,
-1,
-32,
6,
67,
14,
10,
31,
-29,
15,
-2,
-34,
20,
-73,
9,
-4,
-17,
57,
13,
-12,
-11,
-36,
-18,
48,
-41,
36,
-18,
9,
22,
36,
-25,
6,
-35,
-6,
-28,
-8,
45,
-24,
-75,
-40,
25,
-64,
24,
-18,
-10,
-26,
24,
15,
39,
-4,
-33,
-29,
-47,
-58,
-6,
30,
20,
14,
-9,
76,
25,
1,
-11,
17,
11,
24,
-50,
0,
-34,
-56,
-9,
26,
-17,
-13,
-38,
-8,
-48,
-58,
16,
7,
-12,
6,
-7,
-52,
0,
24,
40,
-4,
57,
-24,
-42,
26,
15,
4,
-27,
34,
-41,
39,
37,
35,
-15,
-31,
-3,
20,
-9,
14,
23,
-8,
21,
40,
54,
7,
26,
3,
-25,
12,
-22,
18,
-25,
-27,
2,
-35,
56,
16,
12,
-31,
19,
-26,
-25,
33,
-8,
10,
4,
29,
-18,
8,
5,
34,
-59,
-29,
-17,
-30,
9,
49,
-60,
2,
-80,
5,
7,
38,
41,
-6,
-5,
71,
-44,
-16,
8,
-22,
49,
6,
0,
40,
13,
-16,
-15,
-26,
-21,
20,
8,
-62,
-26,
-33,
-31,
-24,
44,
-32,
10,
17,
8,
-30,
-4,
-66,
-9,
23,
0,
-6,
60,
11,
-33,
2,
-7,
-28,
-27,
25,
15,
43,
77,
14,
-43,
-41,
12,
33,
-44,
-76,
12,
27,
-24,
38,
-29,
35,
11,
36,
-24,
-18,
-45,
26,
34,
6,
44,
18,
7,
6,
14,
-15,
-43,
-15,
9,
-48,
16,
-32,
-4,
-52,
-10,
32,
-51,
-15,
7,
-37,
-61,
-41,
-64,
44,
-4,
-32,
-50,
-29,
20,
21,
39,
37,
20,
-28,
-87,
24,
-2,
4,
29,
17,
7,
-25,
-45,
14,
42,
-14,
-55,
-57,
-5,
-28,
48,
-27,
-67,
9,
-27,
40,
-14,
29,
18,
17,
42,
20,
11,
12,
-22,
9,
-40,
-42,
71,
27,
-14,
-19,
25,
1,
2,
13,
-42,
-25,
-29,
8,
7,
21,
2,
50,
59,
12,
9,
-12,
40,
39,
-45,
40,
-34,
-5,
-28,
-14,
6,
-17,
18,
-24,
60,
22,
16,
7,
-59,
-15,
-22,
-48,
-38,
-2,
53,
34,
-3,
-6,
65,
-8,
-16,
15,
-2,
-27,
-41,
17,
-16,
19,
33,
0,
-19,
-32,
10,
-3,
44,
-4,
-6,
4,
-9,
-34,
24,
14,
-17,
-26,
-34,
-20,
28,
69,
-38,
7,
-38,
-1,
16,
-8,
-9,
54,
-39,
27,
-11,
61,
41,
29,
19,
-3,
5,
15,
-24,
-24,
1,
-33,
1,
-13,
6,
-30,
-48,
-18,
12,
-12,
20,
8,
-67,
-39,
-16,
49,
27,
-7,
-70,
-3,
8,
15,
62,
1,
-15,
-38,
48,
13,
-46,
-4,
-64,
3,
-46,
31,
0,
9,
-17,
9,
-50,
9,
1,
-5,
2,
36,
42,
2,
13,
-47,
14,
-7,
36,
-11,
30,
5,
-43,
3,
41,
57,
13,
7,
8,
-17,
-11,
-26,
41,
-35,
-40,
29,
32,
-43,
44,
3,
-29,
1,
32,
7,
0,
-11,
-99,
15,
35,
6,
-26,
-5,
41,
0,
38,
12,
30,
-24,
5,
-10,
26,
2,
-21,
-42,
-7,
-24,
-11,
0,
53,
25,
-18,
2,
7,
32,
41,
11,
34,
-14,
-62,
-48,
53,
-10,
0,
-27,
-2,
-20,
50,
-23,
-37,
-7,
-8,
-29,
-8,
24,
-34,
37,
14,
21,
-5,
-28,
-31,
2,
-16,
27,
7,
6,
19,
0,
9,
11,
43,
-18,
22,
8,
13,
-2,
14,
-32,
17,
-13,
19,
0,
11,
3,
-30,
0,
45,
-20,
57,
-16,
28,
-44,
27,
51,
28,
55,
-6,
8,
-41,
24,
44,
-23,
-48,
-52,
30,
-8,
12,
-40,
-18,
9,
-12,
25,
91,
20,
-35,
-69,
12,
-31,
-47,
31,
-47,
40,
15,
18,
-10,
26,
-60,
1,
63,
10,
-54,
-26,
-30,
21,
-23,
-67,
-65,
35,
-13,
29,
20,
-2,
32,
39,
21,
-33,
81,
7,
46,
-38,
-19,
24,
23,
-14,
27,
-7,
-2,
-20,
-33,
2,
11,
-24,
31,
-81,
20,
16,
-11,
3,
-20,
75,
40,
-69,
-15,
22,
1,
-13,
7,
56,
-16,
-11,
-22,
9,
-10,
25,
3,
4,
6,
16,
38,
17,
8,
-7,
-7,
41,
20,
31,
12,
-6,
1,
2,
15,
-26,
2,
-18,
12,
38,
24,
-41,
4,
16,
9,
0,
15,
32,
-20,
3,
9,
20,
-37,
40,
-3,
-14,
-11,
31,
-13,
-32,
28,
-28,
30,
36,
-42,
-43,
21,
-28,
-21,
53,
-12,
-2,
13,
10,
4,
5,
56,
-18,
5,
-50,
2,
38,
34,
31,
38,
-6,
27,
16,
-8,
-22,
6,
-9,
5,
4,
-34,
-4,
60,
-18,
-6,
33,
24,
17,
-13,
-21,
56,
-29,
21,
-14,
23,
-2,
60,
-51,
46,
0,
62,
-46,
16,
1,
0,
-10,
-30,
4,
5,
58,
-47,
-14,
2,
-7,
-22,
-35,
-15,
11,
10,
-6,
23,
-7,
-9,
0,
-58,
16,
-50,
-7,
-13,
46,
-23,
-19,
-24,
31,
36,
-26,
8,
-47,
39,
-37,
-5,
19,
-38,
0,
-7,
-30,
-34,
8,
-30,
23,
-18,
25,
-27,
-10,
-21,
19,
-32,
-34,
15,
29,
-29,
-71,
11,
32,
-26,
37,
27,
27,
9,
9,
-11,
9,
-49,
-16,
9,
-21,
11,
-17,
-29,
-10,
-25,
-5,
-91,
-3,
-14,
14,
-50,
44
] |
Per Curiam.
In 1958, by amendatory Act No 152, the Legislature declared a specific time limitation against the institution of actions provided by our dramshop statute (MCLA §436.22 [Stat Ann 1971 Rev § 18.993]). The limitation read then and reads now:
“Any action shall be instituted within 2 years after the happening of the event.”
On appeal granted (383 Mich 814) to review the decision of Division 2 (Davis v. Beres [1970], 24 Mich App 130), the appellant-defendant avers upon appellee-accepted facts that the instant dramshop action was not instituted or — synonymously—commenced within the time allowed hy the quoted limitation.
November 20,1968 plaintiffs filed their complaint. It alleges that on November 26, 1966, one Dale Owen, then and there intoxicated in the defendant’s bar, was furnished more intoxicating liquor by defendant and, shortly thereafter, that he drove his motor vehicle negligently and while yet intoxicated to the personal injury of each plaintiff.
The complaint and summons were delivered promptly to the county sheriff. It is not questioned that the papers were in good faith placed in his hands for immediate service. Service was made December 2, 1968.
Defendant moved for accelerated judgment alleging that the action was barred for failure of service prior to expiration of the quoted two-year period. Plaintiffs responded and now respond much as Division 2 did by testing applicability of the quoted limitation, not as one of interpretation and application of the amendatory section but, rather, by interpreting and applying to it specific provisions of the RJA and GrCR 1963. For details of this approach, see 24 Mich App at pp 132-135.
Was this action “instituted” within two years after the date of the “happening of the event” which gave rise to plaintiffs’ statutory cause? The question depends upon what the Legislature intended, in 1958, by “instituted.” It is not answerable by what took place later, in 1963, when the RJA and GrCR became effective. Our rightful answer is found by looking at the legal situation, and the professional parlance of 1958 and decades prior thereto, for the legislative purpose.
In 1940 our Court adopted and applied this rule of statutory construction, the then adoptive parent being Ruling Case Law (25 RCL, § 215, p 959):
“ ‘There is always a tendency, it has been said, to construe statutes in the light in which they appear when the construction is given. It is easy to be wise after one sees the results of experience. The true rule is that statutes are to be construed as they were intended to be understood when they were passed. Statutes are to be read in the light of attendant conditions and the state of the law existent at the time of their enactment. The words of a statute must be taken in the sense in which they were understood at the time when the statute was enacted.’ ” (Quotation taken from Wayne County Board of Road Commissioners v. Wayne County Clerk [1940], 293 Mich 229, 235, 236).
We applied it again in Husted v. Consumers Power Company (1965), 376 Mich 41, 54. The rule originated when Platt v. Union Pacific R. Co. (1878), 99 US 48, 63, 64 (25 L Ed 424) was handed down. It appears textually now in 50 Am Jur, Statutes, § 236, p 224. The concluding sentence of § 236 reads:
“Since, in determining the meaning of the terms of a statute, the aim is to discover the connotation which the legislature attached to the words, phrases, and clauses employed, the words of a statute must be taken in the sense in which they were understood at the time when the statute was enacted, and the statute must be construed as it was intended to be understood when it was passed.”
When the amendment of 1958 was conceived and considered, a law action was commonly spoken of and regarded as having been instituted in bar of limitation where, within the statutorily allowed period, the plaintiff’s praecipe for summons was filed, the summons was issued, and that summons was placed in the hands of an authorized person with the bona fide intention of having it served.
Cases uniformly attesting the above are Howell v. Shepard (1882), 48 Mich 472; Peck v. German Fire Insurance Company (1894), 102 Mich 52; Harvey v. Detroit Fire & Marine Insurance Co. (1899), 120 Mich 601; Dedenbach v. Detroit (1906), 146 Mich 710; Taylor v. Mathews (1923), 224 Mich 133; People’s Mortgage Corporation v. Wilton (1926), 234 Mich 252; Home Savings Bank v. Young (1940), 295 Mich 725; Nathan v. Rupcic (1942), 303 Mich 201 and Korby v. Sosnowski (1954), 339 Mich 705. Such was the law in 1958, and such is the presumptive sense in which the words employed in the quoted amendment were understood when Act 152 was considered and enacted.
Our ruling is that this suit was “instituted” prior to expiration of the two-year period, six days prior to such expiration. It follows that defendant’s motion for acceleration was properly denied.
To conclude:
Neither Maschmeyer ([1965], 376 Mich 289), nor Holland ([1964], 373 Mich 34), have proper application to today’s question.
Maschmeyer, inconclusive for want of five endorsers of any opinion, dealt with the specific language of the mechanics’ lien law, the requirement of which was and yet is the filing of a “bill in chancery, under oath, and notice of lis pendens recorded in the office of the register of deeds” (MCLA § 570.10 [Stat Ann 1970 Rev § 26.290]).
As for Holland, the causes there arose February 8, 1960. The four suits were instituted by the filing of four declarations on February 14, 1962; six days late by any view of § 436.22. No “savings provisions” of any other statute are here involved, we having found that the instant action was instituted six days ahead of the two year cutoff date. Affirmed. Costs to plaintiffs.
T. M. Kavanagh, C. J., and Black, Adams, T. E. Brennan, T. G. Kavanagh, Swainson, and Williams, JJ., concurred.
We agree with Division 2’s conclusion that “instituted” and “commenced” mean the same in today’s context. See 24 Mich App at 132; also Black’s view of “institute” (Black’s Law Dictionary [4th ed] p 940), citing eases and defining the verb as “To inaugurate or commence; as to institute an action.”
If under former practice the plaintiff chose to file his declaration with notice to plead, then he was required correspondingly and as promptly to place a copy of the declaration and a copy of the notice to plead in the hands of an authorized person for service, in order to have his action commenced on time. See CL 1948, § 613.4 (Stat Ann § 27.734) as then citable. | [
-25,
22,
11,
16,
-17,
23,
29,
-6,
-35,
74,
-19,
-9,
12,
34,
65,
47,
37,
29,
-12,
34,
34,
27,
-15,
1,
-9,
0,
24,
9,
23,
16,
-2,
-24,
-15,
9,
5,
-2,
-36,
-11,
56,
34,
12,
10,
43,
-8,
-14,
-31,
32,
-26,
19,
-29,
29,
-22,
-39,
-8,
-7,
19,
-13,
-24,
-14,
2,
-55,
15,
11,
-45,
38,
-23,
-37,
-24,
-12,
-37,
17,
-12,
-19,
-10,
-28,
-39,
22,
20,
14,
-14,
-14,
8,
22,
-22,
-35,
9,
-28,
-9,
-14,
-39,
-22,
-16,
-10,
12,
-9,
1,
-69,
8,
26,
-14,
-15,
-37,
5,
-6,
-53,
27,
-38,
-45,
-61,
-42,
-11,
23,
10,
-35,
18,
-13,
-10,
41,
-16,
-5,
35,
35,
54,
-3,
-8,
-19,
-11,
16,
15,
33,
-22,
8,
42,
50,
-5,
32,
-4,
23,
34,
-54,
-21,
-22,
39,
-36,
20,
-11,
1,
44,
-15,
-23,
-33,
10,
-16,
3,
-46,
7,
20,
-44,
2,
-31,
16,
-44,
-17,
-3,
8,
-12,
-58,
10,
24,
10,
3,
-33,
-7,
30,
47,
-12,
18,
-1,
1,
32,
-58,
-7,
18,
10,
20,
-10,
-30,
-19,
31,
9,
10,
-39,
-7,
62,
45,
8,
9,
42,
50,
-19,
-8,
-41,
-4,
-2,
-7,
7,
14,
50,
-11,
-12,
-66,
-18,
-16,
17,
-16,
-70,
-4,
-15,
20,
24,
-35,
-24,
47,
7,
-8,
-17,
8,
6,
-26,
21,
-22,
22,
-8,
45,
-2,
-22,
-20,
37,
-2,
60,
48,
29,
-42,
-15,
-8,
3,
23,
-35,
49,
63,
21,
49,
28,
-30,
-8,
-55,
-2,
-16,
-13,
-4,
27,
64,
-49,
-36,
-4,
-28,
-24,
69,
-38,
24,
-3,
-17,
45,
29,
-7,
-24,
-29,
11,
36,
0,
11,
-5,
36,
-12,
-21,
-2,
-4,
28,
-1,
38,
19,
-18,
-45,
35,
20,
63,
12,
-2,
-5,
9,
-3,
-24,
5,
-22,
17,
-46,
-25,
15,
-4,
-44,
-28,
2,
-1,
-29,
10,
-49,
17,
49,
38,
-29,
13,
0,
4,
34,
-43,
-74,
35,
28,
-6,
-18,
47,
-10,
-8,
-21,
21,
-16,
58,
-14,
-25,
25,
47,
38,
0,
-12,
14,
-8,
17,
-55,
41,
19,
12,
-16,
43,
25,
20,
10,
-41,
-58,
-39,
13,
19,
-38,
-40,
8,
32,
-3,
9,
8,
-27,
32,
-31,
37,
7,
-9,
-8,
-19,
27,
13,
-4,
22,
2,
-34,
-8,
-18,
5,
5,
-44,
-42,
-4,
46,
-39,
47,
-2,
-30,
-3,
-37,
3,
17,
0,
-9,
-31,
12,
26,
-20,
26,
-24,
-26,
47,
24,
16,
18,
-30,
21,
15,
-50,
30,
1,
4,
-7,
-24,
46,
28,
-2,
-70,
-4,
-84,
25,
-5,
-17,
4,
14,
16,
10,
-13,
19,
53,
-1,
-13,
-21,
-32,
-9,
-27,
-22,
14,
-8,
40,
18,
-48,
51,
7,
57,
48,
-7,
-23,
-12,
68,
-7,
24,
-11,
21,
30,
-33,
-36,
45,
9,
12,
-49,
-63,
4,
19,
-8,
2,
-5,
-23,
-38,
50,
36,
23,
2,
4,
-31,
32,
5,
-17,
-23,
-28,
-13,
-12,
-11,
0,
70,
-11,
-11,
-10,
-69,
20,
-44,
-19,
-47,
31,
-46,
25,
-26,
28,
13,
-24,
23,
-5,
-23,
36,
-69,
23,
24,
4,
-13,
21,
35,
2,
-1,
13,
22,
-20,
-14,
33,
-70,
-9,
5,
7,
12,
-89,
63,
-29,
3,
-53,
-70,
59,
-25,
15,
-28,
-19,
54,
35,
3,
63,
-12,
-17,
-12,
-21,
1,
35,
-50,
-6,
-22,
8,
-17,
-23,
-27,
10,
2,
-3,
-4,
39,
41,
-3,
26,
-26,
-10,
-26,
34,
7,
-17,
68,
11,
0,
20,
24,
12,
-23,
-13,
-12,
5,
44,
-11,
24,
-6,
-55,
9,
7,
-5,
0,
13,
8,
-48,
30,
45,
17,
-63,
-50,
18,
15,
0,
-9,
3,
-19,
21,
-37,
-31,
-24,
-14,
7,
11,
0,
-10,
2,
-51,
-53,
-34,
13,
-2,
11,
7,
-18,
-8,
1,
1,
42,
-19,
-1,
-9,
19,
-34,
2,
-37,
-15,
14,
11,
15,
54,
-7,
-10,
-14,
31,
12,
4,
-35,
23,
6,
80,
-18,
-21,
-33,
5,
-6,
-16,
-21,
16,
-25,
-66,
4,
-16,
5,
-21,
-1,
8,
-11,
9,
16,
-20,
-29,
11,
18,
-21,
30,
49,
55,
-28,
-56,
-12,
22,
3,
-82,
-27,
46,
-75,
18,
1,
41,
-36,
24,
-17,
22,
-18,
5,
-19,
5,
61,
12,
46,
-12,
9,
-14,
-17,
0,
49,
-36,
6,
-9,
-33,
38,
0,
-64,
-2,
1,
-73,
16,
12,
40,
-7,
-20,
-15,
-26,
-11,
-2,
14,
-38,
37,
2,
-52,
13,
-77,
-2,
6,
-24,
-15,
4,
2,
7,
-34,
38,
44,
8,
-1,
40,
-36,
-35,
-70,
-40,
16,
-23,
23,
-16,
-16,
18,
13,
-7,
6,
-18,
-4,
-26,
-20,
18,
9,
-17,
17,
-22,
-45,
-18,
-30,
75,
-28,
65,
-37,
14,
-18,
0,
10,
11,
-31,
42,
-5,
17,
32,
-3,
5,
47,
-16,
47,
1,
34,
12,
7,
2,
20,
-13,
6,
47,
34,
38,
37,
-33,
-26,
-24,
54,
11,
50,
-9,
26,
22,
5,
-74,
4,
13,
-17,
0,
-32,
-1,
-19,
31,
-6,
-37,
-6,
11,
-16,
0,
9,
-17,
14,
-16,
10,
11,
-5,
16,
10,
16,
15,
-6,
16,
-14,
17,
-24,
14,
43,
-11,
33,
1,
19,
3,
3,
-20,
8,
2,
-33,
-41,
-22,
23,
37,
-16,
-39,
-17,
1,
10,
-8,
16,
-23,
10,
-21,
-14,
30,
-17,
40,
36,
-23,
3,
-10,
-15,
-23,
-21,
-67,
1,
-34,
-43,
41,
15,
10,
-16,
-25,
-1,
-18,
-65,
33,
47,
27,
-45,
21,
-15,
-19,
-35,
12,
14,
-22,
1,
36,
3,
20,
21,
14,
1,
8,
-52,
-32,
17,
-3,
51,
-11,
36,
-3,
-28,
-10,
28,
-18,
68,
0,
-22,
-57,
-14,
10,
25,
38,
-42,
13,
-38,
1,
22,
-2,
18,
-3,
-17,
-8,
-5,
-17,
-44,
17,
-7,
75,
-13,
-22,
12,
18,
2,
-12,
-22,
-23,
-10,
-15,
28,
42,
-11,
49,
-12,
17,
49,
34,
-2,
22,
-9,
-1,
14,
28,
15,
10,
-17,
-28,
41,
43,
-8,
65,
14,
-36,
-51,
21,
-6,
-44,
3,
-4,
-14,
7,
-9,
46,
-45,
-5,
-13,
11,
25,
41,
-9,
15,
-39,
-3,
6,
9,
59,
6,
-18,
5,
32,
-49,
14,
-1,
-10,
23,
-63,
-14,
-5,
-19,
-19,
14,
25,
-13,
-53,
-5,
-7,
3,
-60,
21
] |
Dethmers, J.
Defendant was tried before a jury in Recorder’s Court on a charge of robbery armed and convicted.
At trial the complaining witness identified defendant as one of two men who robbed him at gunpoint. The arresting police officers testified that at the time of his arrest defendant had in his possession a loaded .32 caliber pistol, a number of checks identified as those stolen in the robbery, and a driver’s license belonging to the complaining witness. The defense was to the effect that defendant was not present when the robbery was committed.
The Court of Appeals affirmed the conviction and sentence of 5 to 25 years. On leave granted defendant appeals here, raising many claims of error. Chief among the assignments of error is that the court did not charge the jury as to included offenses of “unarmed robbery”, “attempted robbery”, and “assault and battery”.
Defendant made no request at trial that the lesser included offenses be included in the charge.
The court instructed the jury that:
“There are only two possible verdicts as to each defendant. You may find the defendant, naming them individually, guilty of robbery armed or not guilty. There are no included offenses.”
In People v. Jones (1935), 273 Mich 430, this Court referred to People v. Allie (1921), 216 Mich 133, saying that in the latter case this Court had recog nized the confusion existing in its previous decisions with respect to whether it constituted error to neglect to charge as to lesser included offenses in criminal cases, modified and, in effect, overruled some of them and established the rule that in the absence of a request to charge, the court does not err in failing to instruct upon the included offenses. In Jones this Court went on to say:
“However, the rule does not excuse improper instructions. Here the court did more than fail to charge upon the included offenses. It affirmatively excluded them from the consideration of the jury. This was error because, under 3 Comp. Laws 1929, § 17325, the jury was authorized to find the defendant guilty of a lesser offense * * * .” (The statutory section now is CL 1948, § 768.32 [Stat Ann 1954 Rev § 28.1055]).
The court’s instruction in the instant case that the jury might find defendant either guilty of robbery armed or not guilty but that there were no included offenses comes directly within the interdiction of Jones and requires reversal with new trial.
T. E. Brennan, C. J., and Kelly, Black, T. M. Kavanagh, Adams, and T. E. Kavanagh, JJ., concurred with Dethmers, J. | [
-10,
15,
26,
-16,
-73,
-43,
-43,
-25,
-44,
62,
28,
-11,
-2,
32,
10,
-20,
-32,
21,
12,
-45,
2,
-58,
-66,
58,
-16,
-41,
48,
59,
-10,
0,
41,
23,
11,
4,
8,
-2,
-10,
14,
16,
63,
-9,
-4,
17,
-20,
-51,
-16,
28,
-14,
32,
-9,
30,
-16,
-10,
29,
-18,
38,
0,
7,
9,
-59,
18,
6,
-36,
7,
-37,
-26,
-17,
8,
-41,
-4,
-17,
-52,
-7,
-39,
-19,
-24,
-31,
4,
-22,
-15,
-10,
-48,
3,
7,
40,
-44,
18,
-40,
-45,
-15,
-50,
45,
-38,
-2,
63,
-49,
37,
3,
-13,
-4,
-4,
-25,
-55,
8,
-2,
18,
-83,
-33,
-26,
7,
31,
17,
28,
19,
-31,
-14,
-42,
-24,
-30,
12,
23,
10,
39,
32,
27,
-10,
-54,
-17,
52,
40,
8,
73,
-16,
-7,
-95,
-8,
-27,
11,
-18,
11,
12,
30,
6,
-1,
43,
7,
-31,
26,
18,
7,
-31,
21,
-12,
23,
-9,
-10,
-18,
-45,
9,
-26,
12,
-15,
-14,
-27,
13,
-25,
-4,
-26,
-17,
-41,
-16,
-13,
25,
24,
72,
10,
-21,
-50,
27,
-45,
37,
29,
-30,
-2,
11,
-5,
-18,
31,
-52,
9,
26,
14,
-35,
-9,
35,
47,
-31,
40,
52,
2,
18,
-39,
-5,
-37,
-18,
21,
32,
40,
39,
-18,
-40,
-18,
4,
18,
-29,
-26,
-7,
-25,
0,
-23,
-116,
10,
5,
-16,
41,
-31,
10,
8,
-54,
39,
2,
-30,
-23,
35,
-23,
-80,
58,
-51,
24,
13,
-6,
-31,
-2,
-31,
44,
7,
31,
-1,
-22,
14,
-2,
41,
-6,
0,
-2,
-15,
26,
-21,
-43,
30,
-66,
34,
-9,
-8,
5,
32,
12,
-1,
-44,
-8,
11,
-12,
-9,
56,
15,
-56,
-40,
49,
13,
3,
13,
18,
-14,
28,
-7,
-50,
-13,
45,
50,
9,
57,
-7,
5,
41,
42,
35,
61,
0,
-35,
13,
15,
18,
-3,
-7,
34,
-9,
25,
8,
-23,
19,
11,
13,
6,
11,
2,
4,
0,
9,
13,
-5,
-37,
-41,
-14,
-8,
33,
-13,
-20,
-34,
-4,
-19,
-3,
7,
-6,
6,
-1,
1,
34,
-16,
-3,
35,
-27,
-43,
-11,
3,
56,
37,
-35,
-15,
-55,
19,
8,
46,
0,
-18,
27,
-31,
-12,
-19,
11,
17,
32,
-30,
13,
14,
23,
-13,
3,
-46,
18,
69,
-12,
-12,
-18,
-22,
-20,
21,
17,
36,
-19,
52,
-40,
36,
0,
-32,
-4,
-8,
8,
-50,
1,
68,
-59,
13,
21,
-60,
45,
2,
-20,
-34,
37,
-25,
-46,
10,
66,
3,
-18,
-23,
-48,
54,
-14,
-2,
5,
-12,
54,
4,
2,
-29,
-5,
-32,
4,
-17,
51,
7,
8,
-53,
-2,
-42,
-29,
17,
-3,
-5,
17,
21,
17,
-78,
46,
14,
-20,
-20,
15,
-22,
-24,
17,
-36,
20,
19,
-29,
-22,
-21,
27,
-4,
35,
22,
-10,
-15,
41,
21,
17,
-16,
8,
-38,
15,
-31,
-50,
17,
52,
-35,
-41,
-65,
24,
12,
2,
-21,
-12,
0,
-22,
46,
26,
38,
-7,
-15,
-28,
31,
-9,
-42,
-13,
-49,
-21,
-60,
-48,
2,
26,
27,
9,
22,
-5,
12,
-30,
47,
-22,
21,
-38,
8,
-24,
14,
37,
34,
28,
-39,
32,
7,
-23,
27,
-17,
13,
-11,
-58,
7,
-33,
17,
0,
15,
2,
-19,
9,
-21,
18,
-1,
-28,
-31,
26,
48,
23,
-16,
1,
23,
14,
-28,
-15,
20,
15,
29,
13,
21,
41,
12,
-10,
-7,
-9,
27,
-43,
35,
30,
21,
-26,
4,
-5,
-10,
-7,
-5,
-27,
-26,
63,
38,
21,
4,
-6,
10,
-29,
11,
-8,
6,
57,
-59,
0,
-35,
4,
-9,
30,
0,
-14,
57,
33,
6,
-3,
-5,
30,
32,
27,
-9,
8,
-2,
23,
8,
5,
-7,
15,
-31,
-6,
-17,
20,
16,
-41,
-16,
11,
20,
10,
-30,
4,
48,
-49,
45,
-14,
-1,
24,
-30,
15,
-30,
-28,
-51,
0,
-8,
9,
4,
36,
13,
-13,
-13,
-29,
-17,
-66,
21,
-7,
3,
0,
-16,
18,
-23,
45,
-32,
11,
11,
18,
24,
-10,
7,
-29,
-49,
29,
34,
-86,
-49,
65,
-1,
-74,
9,
-5,
-39,
30,
-16,
-13,
0,
49,
-51,
12,
17,
93,
29,
-55,
47,
30,
11,
-53,
8,
-11,
11,
39,
-7,
0,
12,
-48,
-2,
-42,
8,
1,
9,
-30,
10,
-36,
26,
-10,
-35,
63,
7,
0,
-11,
-1,
93,
42,
-41,
28,
34,
-45,
8,
-24,
-12,
10,
6,
-5,
15,
-14,
-52,
19,
-19,
-30,
11,
-13,
-54,
-40,
-23,
64,
0,
-24,
33,
56,
2,
-8,
53,
-9,
18,
5,
35,
20,
-14,
-3,
50,
25,
-7,
-3,
-39,
44,
-8,
4,
13,
-14,
-35,
6,
41,
-62,
36,
19,
5,
57,
29,
-13,
-31,
50,
2,
28,
-36,
-57,
-12,
42,
19,
-32,
-47,
3,
-3,
-33,
13,
8,
-43,
-57,
33,
-12,
-10,
12,
-18,
-37,
11,
-7,
-1,
47,
-1,
-1,
52,
0,
15,
22,
-57,
0,
15,
-17,
-43,
13,
44,
-17,
14,
32,
23,
-2,
0,
12,
45,
-7,
13,
3,
30,
14,
-10,
25,
2,
-6,
-31,
17,
15,
35,
-4,
-2,
24,
-26,
4,
15,
15,
-34,
-15,
57,
13,
-31,
-41,
5,
3,
5,
11,
63,
-4,
-25,
-1,
9,
-42,
11,
44,
-23,
-14,
17,
60,
2,
-11,
-24,
10,
29,
21,
22,
-2,
-37,
-28,
18,
-8,
63,
-30,
6,
-25,
0,
0,
-24,
19,
-6,
-10,
-35,
-26,
6,
19,
15,
0,
18,
-5,
78,
-28,
44,
12,
-24,
-10,
4,
12,
24,
5,
-52,
-59,
-49,
-34,
32,
0,
71,
-22,
2,
-22,
-48,
-21,
16,
18,
-36,
45,
34,
-41,
8,
51,
-24,
49,
20,
-52,
18,
-13,
6,
-5,
19,
10,
0,
-12,
-22,
46,
-34,
-53,
41,
36,
-21,
-4,
-39,
39,
33,
28,
21,
-29,
27,
-35,
-58,
-15,
-8,
23,
-6,
-15,
-8,
-13,
-38,
-11,
25,
-57,
4,
10,
4,
-51,
17,
-63,
-50,
10,
1,
0,
28,
-5,
54,
-12,
-12,
-28,
29,
2,
-16,
50,
23,
23,
-50,
-46,
13,
13,
-18,
-19,
-42,
24,
-31,
-17,
-6,
-54,
36,
1,
-12,
-13,
5,
7,
-1,
2,
27,
-43,
13,
-26,
11,
54,
33,
-12,
0,
-23,
-12,
0,
39,
-26,
-21,
34,
0,
-16,
-19,
30,
30,
-33,
7,
5,
-8,
4,
15,
-31,
45,
19,
13,
-67,
-42,
-7,
73,
-14,
44
] |
Fitzgerald, J.
The principal issue on appeal is whether the trial court erred in setting aside a $75,000 jury award in favor of plaintiff and in granting defendant’s motion for new trial.
I
Plaintiff Wayne Willett brought suit claiming that defendant Ford Motor Company intentionally interfered with his contractual relations by causing him to be fired as bump shop manager of Walt Hickey Ford, Inc., a Ford dealership, because plaintiff had testified adversely to defendant in a products liability case, Robinette v Ford Motor Co, Wayne County Civil Action No. 29555. In his own trial, plaintiff testified that on July 1, 1970 he had testified as an expert in the Robinette case; that on July 2, the jury therein returned a verdict against Ford in the amount of $115,000; and that on July 3, plaintiff was fired as bump shop manager for Hickey Ford. Apart from this and other evidence, there were portions of plaintiff’s testimony which were excluded in the first trial on an evidentiary ruling which was never appealed by plaintiff. On a separate record, plaintiff testified that, after completion of his testimony in the Robinette case, he was approached in the courtroom hallway by a Mr. Shanks who was employed by Ford in the quality control department and who was to testify in Ford’s behalf. According to plaintiff, Shanks appeared red in the face from anger and said to plaintiff: "We will take care of you.”
The exclusion of plaintiff’s testimony regarding the threat prompted plaintiff’s counsel to move for a mistrial. The motion was denied, and the trial court warned plaintiff not to allude in the jury’s presence to the excluded statement. The separate record proceeding and connected argument lasted approximately one-half day.
During closing argument, plaintiffs counsel did allude to the excluded statement:
"Someone said when they heard that an employee of a Ford dealership had come into court to testify against the Ford Motor Company, someone said and we do not know who that person was, and we have no way of finding out, because there are 12,000 employees as they say on their rolls. Who is going to come and tell the truth now, but someone said we are going to get him, and we are going to get him fired. We will seek revenge upon Wayne Willett so that this does not happen again.”
Defense counsel objected and the jury was excused.
The trial court, finding the argument improper, severely admonished plaintiff’s counsel and announced that it would caution the jury to disregard the argument as having no basis in the evidence.
Counsel defending expressed concern that a cautionary instruction would be inadequate and that the defense had been incurably hurt by the argument:
"Mr. Seavitt: But, you see, the question that had been put to the witness leading up to that question is precisely where the court excused the jury. It was a question that was hanging. Now, this court already has a suspicion something was said because that is where the testimony was interrupted. Now, we have an effort by counsel to introduce the absent testimony and this is not inadvertent because he used almost identical [sic] the words the witness used on the record. Now, my problem is, counsel said I will withdraw it. No way should that be permitted. Now the question is here, is the court in a position where it has to correct the record. In other words, we are getting perilously close to the point. Like they say, you put something in the milk, it is sour forever. You cannot unsour it. But, this sort of improper argument is precisely what is building in this case unfortunately. I thought in view of the fact we had spent from 2 o’clock to 4 o’clock on April 30th arguing this point of law, and we did it vigorously and with the assistance of all the legal material [we] could present at that time, and the court considered the argument and ruled. Here we are at a point where we introduce something and not something which is inadvertent because counsel used almost the very words that the witness said was said to him.
"The Court: Well, I shall attempt to hear it, and if you are not satisfied, you can make a motion for mistrial. Of course, I said I did not want to grant a mistrial.
"Mr. Seavitt: I think I will not have preserved this point unless I do make a motion for mistrial. In order to preserve support, I think that I must at this juncture move for a mistrial.
"The Court: I will take it under advisement.”
II
The trial court set aside the jury’s verdict and granted defendant’s motion for new trial on the basis of improper, prejudicial argument which, the trial court was convinced, led to a grossly excessive verdict. The court was of the opinion that the improper argument caused the jury to base its verdict on something other than the evidence presented. The court noted that plaintiff lost at most one day’s work by reason of his termination by Walt Hickey Ford, that plaintiff thereafter secured comparable employment at an automobile dealership in competition with Hickey, and that even plaintiffs counsel had conceded that there were no actual damages. The trial court further noted that evidence relating to embarrassment and injured feelings was extremely weak.
III
Prior to commencement of the second trial, plaintiff appealed the new trial order to the Court of Appeals which denied leave to appeal because it was not persuaded of the need for immediate appellate review. Likewise, this Court denied leave to appeal at that time for the reason that we were not persuaded that plaintiff would suffer substantial harm by awaiting final judgment before taking appeal. On retrial, the jury rendered a unanimous verdict for the defendant and a final judgment was entered thereon. Plaintiff then filed a claim of appeal in the Court of Appeals, contesting only the order setting aside the first jury’s verdict. Defendant cross-appealed, contesting the first trial judge’s order denying defendant’s motion for judgment notwithstanding the verdict. In an unpublished per curiam opinion, the Court of Appeals affirmed the trial court on both questions. The parties are here before us on leave to appeal and cross-appeal granted. Because we resolve the new trial issue in defendant’s favor, and because defendant has fully prevailed before the jury on retrial, we do not pass on the sufficiency of the evidence supporting the jury’s verdict in the first trial, nor whether judgment notwithstanding the verdict for defendant should have been granted.
IV
This Court has recently and unanimously repeated the standard for appellate review of an order granting or denying a new trial: "The grant or denial of a new trial is within the sound discretion of the trial court which, if not abused, cannot be interfered with on appeal.” Further, we approved the following criteria for determining whether, in the case of a new trial grant, there has been a proper exercise of discretion: "[I]f the reasons assigned by the trial judge for his action are legally recognized and the reasons are supported by any reasonable interpretation of the record, he acted within his discretion.”
There can be no doubt that the reasons assigned by the trial judge, i.e., improper and prejudicial argument resulting in an excessive verdict, are legally recognized.
As to record support, the $75,000 jury award must be weighed against the fact that plaintiff was able to prove no actual damages by reason of his discharge, and that exemplary damages in this state are not punitive in nature. Rather they are in the nature of compensatory damages for embarrassment and injured feelings. A review of the record supports the trial judge’s observation that testimony regarding embarrassment and injured feelings was extremely weak. Plaintiff testified that he experienced embarrassment on an uncertain number of occasions when questioned by unidentified former customers as to why plaintiff was no longer working at the Hickey dealership.
Furthermore, a review of the record indicates that opposing counsel’s reaction to the improper argument was immediate and emphatic. As was stated in Koepel v St Joseph Hospital, 381 Mich 440, 443; 163 NW2d 222 (1968):
"If counsel defending thinks that his defense has been hurt incurably by a prejudicial closing argument, his remedy of prompt motion for mistrial is open to him. If on the other hand the situation in his view is reparable by the trial judge, a formal request for judicial correction is not only in order but tactically valuable.”
In the instant case, defense counsel did move for a mistrial. His remarks in support of that motion indicate that he was concerned that the argument that plaintiff had been threatened by defendant’s employee, which was not supported by any evidence before the jury, would not be easily cured by instruction. Before the jurors were excused at mid-trial, they had heard plaintiff begin to relate the conversation with Mr. Shanks and were aware that, during at least part of the one-half day that they were excluded from the proceedings, counsel were debating the evidently crucial question of whether the jurors should be allowed to hear plaintiff’s account of the conversation.
The giving of a cautionary instruction does not preclude further relief from an unjust verdict if the trial judge, or reviewing court on appeal, finds that under all the circumstances the instruction may not have prevented the feared prejudicial impact. In granting a new trial for the plaintiff in Lapasinskas v Quick, 17 Mich App 733, 739; 170 NW2d 318 (1969), then-Judge Levin stated:
"We have no way of knowing whether the defendants’ injection of this issue influenced the jury or whether the trial judge’s cautionary instruction in fact removed any effect adverse to plaintiff’s action. See Clark v Grand Trunk WR Co, 367 Mich 396, 402 [116 NW2d 914] (1962); cf. Felice v Weinman, supra [372 Mich 278; 126 NW2d 107 (1964)]. We cannot say that the verdict in this case might not have been different had this prejudicial issue not been adverted to by the defendants. Under the circumstances of this case, where the plaintiff sought to protect himself and the defendants, nevertheless, insisted on injecting this impermissible issue, we think it proper to visit upon the defendants the burden of a new trial during which the issue of the father’s negligence shall not be referred to by innuendo or otherwise.”
The trial judge’s reasons for granting the new trial, that the cautionary instruction had not erased the prejudice created by counsel’s argument, is legally recognized and is supported by a reasonable interpretation of the record. As to that issue, the trial court and the Court of Appeals are affirmed.
Costs to defendant.
Kavanagh, C. J., and Williams, Levin, Coleman, Ryan, and Blair Moody, Jr., JJ., concurred with Fitzgerald, J.
Interestingly, plaintiffs testimony, which was excluded in the first trial and became the subject of the separate record, was admitted on retrial wherein the jury returned a unanimous verdict of no cause of action in favor of defendant.
391 Mich 821 (1974).
397 Mich 818 (1976).
Kailimai v Firestone Tire & Rubber Co, 398 Mich 230, 232; 247 NW2d 295 (1976).
Kailimai, supra, at 233, quoting Benmark v Steffen, 9 Mich App 416, 422-423; 157 NW2d 468 (1968), and Williams Panel Brick Mfg Co v Hudsin, 32 Mich App 175, 177; 188 NW2d 235 (1971).
GCR 1963, 527.1(2)-527.1(4).
Smith v Jones, 382 Mich 176, 204; 169 NW2d 308 (1969). | [
-19,
37,
-58,
16,
63,
1,
20,
-36,
-39,
-4,
30,
24,
22,
-11,
-36,
-26,
31,
-12,
7,
-34,
-4,
-50,
-15,
-12,
10,
-15,
-28,
-40,
-27,
-13,
-50,
-11,
-45,
-25,
-35,
-26,
30,
54,
-40,
12,
-72,
-25,
37,
-17,
8,
-4,
4,
-14,
44,
-1,
52,
2,
-41,
13,
20,
-11,
38,
-16,
6,
-5,
0,
12,
31,
-48,
-33,
-61,
-14,
0,
-20,
53,
-68,
-20,
-1,
-19,
-2,
-116,
-19,
16,
11,
-15,
35,
-42,
38,
-3,
-24,
43,
16,
0,
-2,
15,
-27,
21,
-41,
2,
16,
-11,
1,
20,
25,
7,
-27,
23,
9,
22,
14,
10,
-7,
-15,
20,
12,
2,
8,
37,
1,
-10,
-40,
23,
5,
49,
-14,
11,
-29,
2,
-15,
5,
21,
11,
-7,
-5,
64,
59,
30,
35,
19,
29,
-10,
25,
-14,
-25,
14,
15,
54,
-12,
-3,
38,
36,
-35,
-15,
-1,
17,
-39,
75,
-10,
12,
-12,
-41,
13,
-37,
44,
-18,
34,
36,
-18,
9,
-43,
-41,
-13,
36,
35,
-27,
12,
49,
30,
7,
10,
25,
23,
-50,
-14,
4,
-39,
-11,
-19,
16,
3,
-32,
37,
-4,
-29,
38,
30,
1,
19,
17,
37,
-33,
-13,
-12,
24,
-18,
19,
-21,
23,
8,
33,
16,
2,
3,
7,
-8,
-38,
26,
49,
-69,
-34,
-41,
25,
-7,
13,
-27,
-8,
-14,
-33,
-5,
-45,
-1,
-14,
-15,
0,
11,
9,
32,
-42,
9,
-81,
-63,
4,
-49,
18,
15,
-23,
-21,
31,
0,
-35,
-15,
-17,
14,
20,
5,
7,
35,
42,
33,
-46,
-8,
-3,
-23,
-39,
16,
-37,
75,
-3,
29,
-12,
27,
-37,
25,
-22,
-59,
31,
-30,
19,
1,
0,
-57,
-8,
21,
-19,
-7,
-7,
-1,
-33,
-15,
-4,
11,
-5,
23,
-27,
-11,
23,
-6,
-17,
-21,
-27,
44,
32,
40,
0,
27,
0,
8,
-29,
13,
-43,
-8,
-6,
-30,
7,
46,
-60,
-44,
41,
19,
47,
-13,
-35,
13,
-4,
-17,
-32,
24,
3,
-6,
31,
10,
-28,
-25,
-27,
-51,
37,
-13,
-19,
28,
4,
-52,
20,
3,
32,
43,
24,
-16,
21,
-5,
-37,
20,
34,
11,
-23,
-11,
12,
-45,
7,
-25,
12,
4,
8,
-25,
-29,
11,
-15,
-26,
-17,
36,
27,
30,
20,
-12,
-7,
59,
-23,
-31,
10,
-21,
-32,
-30,
-33,
-55,
-4,
46,
-57,
-2,
6,
-31,
-8,
22,
8,
-17,
-3,
73,
0,
-8,
-7,
21,
-23,
13,
-26,
19,
0,
41,
-51,
-21,
-16,
-32,
-33,
1,
-10,
-5,
-7,
-22,
-15,
-15,
9,
53,
-23,
-26,
45,
-17,
-5,
11,
10,
0,
19,
-22,
38,
-44,
31,
10,
5,
-4,
-13,
-6,
-21,
6,
4,
50,
-16,
-13,
37,
-5,
-24,
-2,
-29,
-30,
8,
4,
-44,
13,
31,
20,
19,
0,
29,
44,
0,
16,
-4,
11,
2,
6,
34,
-44,
3,
-49,
36,
1,
6,
-4,
-46,
35,
20,
40,
57,
8,
-17,
-21,
26,
3,
22,
34,
41,
52,
39,
-10,
-55,
-13,
-23,
-30,
24,
20,
25,
62,
-33,
-13,
16,
1,
17,
39,
-7,
-38,
-20,
-13,
40,
-25,
8,
-22,
4,
-82,
9,
0,
-11,
42,
1,
84,
22,
31,
-2,
77,
-10,
36,
2,
-19,
-49,
19,
-23,
-43,
0,
-28,
11,
-38,
33,
76,
46,
-11,
26,
16,
16,
-62,
-32,
0,
-17,
-7,
-12,
-8,
-1,
-102,
-38,
-26,
95,
17,
49,
15,
21,
-43,
21,
52,
22,
-34,
-13,
0,
-40,
50,
22,
37,
32,
7,
-9,
-67,
60,
-3,
-35,
-13,
-24,
46,
-11,
20,
2,
1,
-33,
-48,
-22,
-29,
-8,
-8,
-33,
-28,
40,
3,
-5,
-8,
-4,
-3,
15,
-36,
12,
-16,
-12,
-33,
16,
-21,
23,
-2,
-53,
31,
-48,
1,
-34,
14,
16,
-6,
24,
-13,
-35,
-43,
50,
3,
-14,
16,
-14,
59,
23,
13,
-23,
5,
-8,
27,
20,
-27,
0,
-43,
-23,
-15,
-9,
18,
0,
7,
-11,
43,
-28,
3,
52,
-2,
40,
-36,
-5,
-47,
-27,
16,
-2,
-25,
-49,
5,
19,
-10,
-8,
7,
36,
-17,
-15,
-26,
-12,
0,
-37,
-32,
-3,
-39,
-4,
32,
9,
18,
31,
9,
26,
55,
39,
50,
-21,
2,
-12,
29,
-5,
6,
-48,
-15,
-63,
-12,
16,
-11,
25,
-11,
-16,
61,
9,
-60,
-49,
10,
18,
8,
-59,
-47,
-8,
-5,
18,
48,
24,
25,
38,
18,
17,
23,
16,
17,
-8,
17,
47,
21,
0,
-24,
-38,
-11,
-11,
0,
9,
-6,
4,
10,
46,
-13,
11,
3,
5,
14,
43,
24,
-35,
35,
30,
-48,
1,
-26,
40,
0,
37,
-26,
3,
8,
21,
-20,
7,
-12,
7,
0,
-5,
23,
-1,
64,
43,
-2,
-27,
-26,
-9,
-10,
3,
-60,
0,
50,
23,
41,
65,
2,
-41,
34,
-12,
4,
-22,
47,
6,
8,
-38,
-2,
29,
-12,
25,
26,
8,
-35,
5,
23,
-25,
13,
101,
-41,
-40,
28,
-14,
-6,
24,
6,
26,
-6,
40,
32,
55,
79,
-23,
-75,
30,
19,
49,
-43,
11,
-9,
47,
-32,
18,
-78,
-21,
-5,
-44,
11,
29,
20,
-38,
-11,
10,
-7,
-11,
-12,
0,
1,
-9,
-26,
-20,
76,
-22,
-8,
32,
-19,
-10,
-38,
-8,
20,
-13,
24,
42,
15,
-17,
-32,
10,
19,
-32,
-25,
-5,
3,
-40,
-9,
-10,
-5,
-28,
-33,
-14,
20,
-36,
-14,
-15,
11,
-53,
-37,
31,
-31,
-27,
-3,
1,
49,
16,
44,
-21,
-8,
-30,
5,
21,
-40,
10,
31,
23,
-57,
-3,
-32,
-85,
25,
4,
7,
-36,
-48,
-5,
-5,
21,
-11,
31,
-54,
-7,
-38,
-6,
-6,
3,
-36,
-4,
18,
-17,
7,
-36,
-24,
44,
29,
11,
19,
-19,
21,
2,
4,
19,
4,
-19,
2,
-21,
0,
-22,
-45,
7,
17,
-16,
-7,
10,
-23,
-69,
13,
-46,
-58,
-38,
43,
31,
-22,
8,
-27,
0,
-53,
-64,
21,
-48,
30,
18,
-5,
11,
7,
9,
-7,
25,
-41,
5,
14,
2,
-2,
-32,
-20,
43,
-16,
-14,
-4,
-34,
2,
26,
-3,
53,
-40,
0,
6,
35,
11,
-17,
13,
19,
42,
-13,
19,
16,
-27,
-38,
5,
-30,
39,
-20,
23,
-12,
31,
1,
46,
14,
-22,
30,
-8,
-14,
35,
42,
-23,
24,
52,
-18,
14,
34,
17,
-1,
-27,
-37,
16,
-35,
33,
4,
-16,
-4,
0,
-28,
33,
1,
23
] |
Rehearing denied. | [
10,
-68,
-87,
24,
38,
-32,
-2,
41,
-39,
25,
52,
-6,
67,
-71,
-24,
65,
-17,
-13,
-14,
-77,
-36,
-58,
-25,
37,
-39,
15,
25,
11,
-44,
-39,
43,
-31,
-77,
-21,
-10,
-69,
-16,
60,
-23,
-16,
-55,
-21,
-16,
-52,
-23,
-68,
3,
30,
-18,
39,
5,
-10,
-47,
37,
-22,
48,
26,
-21,
-55,
-29,
-38,
40,
31,
-18,
-20,
-52,
-47,
-7,
-33,
24,
-29,
-1,
0,
-5,
26,
0,
-68,
36,
52,
53,
80,
47,
-16,
20,
3,
1,
6,
-26,
21,
-53,
22,
-22,
-91,
17,
-14,
39,
-22,
22,
23,
24,
33,
18,
-3,
-60,
-51,
-36,
-31,
22,
-12,
-8,
22,
-33,
30,
-38,
38,
-24,
5,
36,
53,
5,
-5,
60,
-10,
-38,
17,
-4,
39,
-44,
22,
-22,
21,
0,
61,
36,
-15,
0,
-2,
-6,
-69,
-63,
-32,
71,
36,
45,
54,
-83,
58,
21,
-16,
10,
-16,
-39,
-24,
19,
-44,
0,
-2,
-14,
31,
41,
76,
35,
-83,
-34,
56,
8,
40,
-28,
84,
-20,
-8,
68,
14,
-26,
-58,
-39,
-10,
28,
14,
6,
6,
39,
-4,
29,
78,
-8,
-38,
21,
23,
65,
-69,
17,
59,
82,
43,
-30,
9,
-12,
-1,
-33,
62,
127,
-103,
6,
56,
-32,
39,
21,
-13,
58,
-44,
-7,
-50,
6,
-12,
-97,
46,
11,
53,
11,
-33,
14,
38,
-5,
-32,
7,
47,
38,
-3,
-5,
-7,
30,
-2,
26,
58,
-66,
37,
7,
73,
-37,
-54,
-31,
4,
66,
2,
-45,
-80,
11,
35,
-124,
14,
14,
82,
-14,
-61,
32,
-55,
70,
-11,
-35,
49,
58,
-28,
-4,
-19,
-11,
-38,
35,
82,
-37,
4,
-41,
-41,
10,
47,
9,
16,
-5,
58,
62,
-57,
-8,
-31,
62,
-49,
-50,
33,
13,
34,
21,
2,
-3,
45,
0,
32,
-49,
3,
41,
15,
-7,
30,
50,
17,
43,
-3,
-34,
14,
-77,
49,
46,
-7,
-1,
0,
42,
-3,
-68,
28,
-69,
-64,
-16,
-3,
-89,
5,
17,
-68,
55,
-20,
49,
65,
-15,
55,
15,
-19,
21,
18,
-34,
-7,
-25,
-33,
88,
-13,
54,
-37,
-24,
-3,
0,
-85,
-19,
43,
55,
17,
-24,
-38,
-17,
62,
38,
-61,
-30,
-20,
14,
22,
-28,
1,
30,
4,
0,
8,
63,
35,
43,
-5,
-54,
-27,
-57,
-34,
86,
15,
-8,
-54,
-45,
-85,
-31,
-55,
11,
0,
7,
-2,
-9,
57,
-5,
-1,
15,
-8,
-36,
12,
46,
6,
27,
-7,
10,
-24,
-25,
-26,
12,
22,
-5,
19,
-14,
-6,
38,
-16,
-2,
-65,
-19,
-21,
17,
7,
-1,
19,
-15,
-81,
-44,
-56,
1,
-16,
-50,
-63,
25,
31,
36,
-40,
-22,
12,
-54,
-46,
-36,
34,
26,
32,
-17,
-31,
-7,
-16,
-10,
12,
-24,
-37,
-18,
-41,
16,
-19,
16,
-56,
-13,
-8,
-32,
-62,
82,
-11,
14,
-88,
-53,
12,
9,
53,
-20,
-2,
-19,
-58,
69,
15,
-43,
14,
34,
-17,
14,
-19,
-27,
-43,
-1,
-42,
34,
33,
-73,
26,
2,
-22,
-6,
33,
22,
-20,
43,
29,
26,
-29,
13,
28,
-4,
-7,
96,
-31,
49,
15,
37,
45,
8,
0,
-33,
-52,
-94,
40,
54,
7,
24,
46,
14,
-66,
13,
-40,
-24,
-19,
37,
3,
-48,
-32,
-9,
-103,
-32,
-52,
38,
29,
-3,
26,
-36,
-17,
-89,
3,
-7,
-13,
105,
5,
18,
-40,
-24,
58,
54,
-24,
-23,
-1,
1,
62,
-37,
51,
7,
-66,
-39,
79,
-33,
-7,
-8,
14,
3,
-35,
46,
-7,
30,
-24,
18,
58,
22,
6,
40,
-6,
25,
31,
-27,
43,
9,
-1,
-41,
25,
3,
37,
18,
-14,
-7,
-53,
-57,
-23,
4,
-29,
0,
-9,
-31,
-23,
6,
-16,
1,
-6,
43,
-17,
2,
-42,
-18,
-32,
4,
1,
-24,
20,
22,
-21,
4,
-26,
-9,
-64,
1,
-13,
71,
32,
-46,
3,
70,
-43,
-36,
-27,
-6,
3,
11,
18,
-6,
-88,
43,
-9,
24,
-61,
35,
-24,
-40,
-12,
74,
3,
-71,
18,
-28,
-28,
-47,
7,
-24,
8,
45,
31,
55,
27,
-19,
19,
3,
-77,
-68,
69,
29,
-3,
35,
7,
2,
-71,
-1,
51,
31,
79,
15,
-25,
85,
23,
-8,
-29,
27,
45,
-16,
-77,
-11,
-10,
-19,
11,
-32,
69,
-27,
13,
-43,
0,
48,
59,
-9,
92,
-32,
66,
-9,
16,
4,
-13,
30,
11,
-27,
-11,
-47,
-6,
-24,
-55,
-55,
-4,
-32,
-39,
-28,
-6,
11,
104,
-35,
-67,
33,
63,
52,
48,
23,
69,
15,
-4,
-20,
58,
62,
80,
-70,
11,
-23,
11,
-30,
10,
-25,
11,
10,
37,
45,
-10,
-40,
-51,
-7,
-45,
-20,
2,
-36,
-11,
-78,
-3,
10,
-59,
11,
-34,
14,
-17,
-72,
26,
27,
32,
4,
-9,
17,
-45,
25,
-6,
0,
53,
77,
13,
-49,
42,
13,
28,
9,
-9,
-6,
6,
47,
18,
-10,
9,
11,
32,
-37,
4,
-41,
-67,
-40,
45,
-2,
-82,
38,
83,
24,
-11,
-4,
1,
25,
-15,
-33,
0,
28,
40,
-58,
-66,
22,
-12,
7,
8,
-32,
-38,
-32,
-1,
-18,
32,
72,
22,
2,
32,
13,
69,
-34,
-18,
-6,
-23,
-9,
-14,
34,
2,
32,
32,
-8,
-38,
-64,
62,
-41,
2,
-19,
-15,
-23,
44,
16,
-5,
-35,
-56,
-30,
-52,
80,
19,
-2,
0,
11,
-16,
25,
-23,
3,
-15,
30,
-37,
38,
36,
-57,
5,
31,
-10,
-19,
43,
-17,
87,
-96,
34,
34,
28,
4,
20,
39,
20,
18,
0,
27,
14,
-12,
69,
-8,
-47,
-27,
16,
-18,
69,
15,
11,
2,
80,
7,
57,
6,
-45,
12,
-19,
-6,
-33,
23,
29,
-72,
-3,
17,
-3,
-17,
15,
1,
-21,
-74,
25,
-31,
-29,
-14,
-46,
-3,
64,
-42,
-9,
-47,
20,
-20,
-33,
-46,
48,
-58,
69,
32,
3,
-11,
-5,
-35,
-11,
14,
-38,
-9,
-19,
11,
-2,
-59,
-23,
46,
-53,
52,
-27,
14,
-4,
-14,
-1,
-80,
-45,
27,
17,
-11,
17,
16,
47,
54,
-14,
44,
6,
39,
-23,
46,
-60,
5,
50,
71,
-7,
-52,
-60,
54,
-34,
-16,
-52,
-7,
-21,
3,
33,
-27,
-40,
-41,
-9,
19,
73,
-45,
-9,
19,
-87,
-11,
-11,
23,
-71,
-20,
27,
60,
-6,
49,
50,
-4,
45,
44,
48,
-66,
-3,
1,
6,
94,
-5,
62,
8,
11,
31,
-24,
60,
66,
30,
-22,
-47,
-2
] |
Application for admission without examination is denied, without prejudice to a resubmission of the application after issuance of the amendments to the Rules for the Board of Law Examiners.
Kavanagh, C. J., would grant the application. | [
-1,
-66,
-8,
-77,
-13,
64,
28,
34,
-80,
49,
20,
-46,
40,
-34,
-42,
23,
-6,
-11,
15,
-2,
-11,
50,
42,
20,
44,
27,
20,
39,
-34,
29,
23,
9,
-55,
13,
-39,
-53,
-25,
-4,
22,
48,
35,
-24,
-14,
-17,
-36,
-9,
0,
-6,
6,
20,
-41,
-16,
21,
-9,
-27,
80,
44,
-49,
-45,
-24,
-4,
79,
-3,
36,
-7,
54,
-41,
-25,
26,
-11,
-2,
-35,
-27,
-27,
-56,
27,
32,
-34,
-6,
50,
54,
28,
19,
8,
-27,
64,
97,
16,
28,
0,
-38,
8,
-43,
20,
-64,
-16,
13,
-23,
36,
18,
-11,
-23,
23,
-24,
20,
21,
-5,
57,
12,
-78,
53,
-28,
-6,
-36,
-9,
-30,
-36,
29,
19,
-33,
-50,
75,
19,
-23,
-40,
0,
-27,
27,
-6,
-1,
-35,
49,
-41,
20,
-35,
-49,
20,
18,
12,
-55,
-35,
24,
10,
-20,
-58,
-75,
16,
-106,
-63,
38,
59,
-70,
-22,
45,
-21,
37,
27,
27,
51,
-72,
15,
54,
-8,
-4,
35,
12,
-27,
-31,
26,
7,
-35,
18,
24,
80,
10,
-25,
25,
0,
13,
10,
8,
36,
71,
31,
-8,
59,
29,
-32,
4,
13,
-16,
-8,
20,
48,
53,
-58,
-16,
-32,
47,
-7,
4,
39,
-4,
-17,
52,
-31,
-30,
0,
-24,
-47,
-40,
24,
-43,
-4,
78,
36,
21,
45,
62,
-39,
-25,
26,
-12,
-12,
-36,
76,
-53,
43,
-25,
-64,
-39,
15,
-63,
-20,
66,
-1,
-29,
9,
105,
-38,
-14,
70,
14,
-16,
8,
-28,
-12,
-19,
40,
-32,
81,
38,
54,
-8,
-15,
11,
33,
-9,
21,
21,
-41,
4,
-18,
-22,
-72,
-17,
-53,
56,
6,
-6,
0,
-45,
12,
-15,
1,
6,
-8,
-74,
28,
2,
29,
39,
-21,
29,
-78,
40,
-53,
22,
-18,
36,
-59,
54,
19,
38,
-9,
-53,
12,
30,
-62,
-47,
33,
-71,
25,
17,
33,
-25,
13,
-77,
71,
-54,
-25,
14,
-55,
32,
2,
-65,
-3,
4,
-20,
-29,
0,
-85,
10,
35,
56,
-3,
40,
11,
40,
33,
29,
-65,
15,
31,
66,
32,
97,
46,
11,
34,
23,
10,
-44,
-13,
-11,
-71,
-74,
-59,
32,
59,
-43,
1,
-40,
-1,
-12,
-9,
-14,
-33,
-42,
-30,
22,
32,
11,
-35,
7,
12,
-25,
86,
-10,
-5,
27,
-58,
58,
-18,
36,
20,
38,
-9,
-12,
-3,
-51,
-61,
-41,
11,
32,
0,
0,
-7,
35,
33,
0,
7,
-47,
-54,
-33,
12,
2,
40,
40,
0,
-18,
-23,
-26,
43,
-40,
1,
-66,
-20,
-17,
-6,
-67,
69,
-20,
-41,
32,
6,
22,
-13,
20,
22,
-58,
-66,
19,
-6,
-45,
-24,
-18,
24,
18,
-32,
-71,
-49,
-3,
-18,
12,
-25,
23,
2,
10,
40,
9,
-37,
-49,
7,
-31,
19,
-40,
-4,
-67,
12,
-8,
8,
-24,
-34,
-27,
-84,
-46,
105,
27,
9,
-16,
-37,
-9,
3,
35,
10,
-27,
25,
-14,
-6,
-8,
5,
-56,
39,
7,
-26,
1,
50,
-41,
-18,
31,
7,
-48,
0,
-2,
2,
24,
34,
-39,
20,
-39,
56,
34,
12,
-30,
84,
64,
-54,
-47,
-2,
-44,
23,
-51,
-23,
-5,
-47,
-95,
2,
38,
-14,
16,
-7,
22,
41,
7,
58,
-32,
39,
3,
-59,
29,
9,
-27,
-8,
-20,
24,
-49,
-22,
71,
51,
24,
-17,
9,
-35,
7,
-1,
-21,
30,
-9,
44,
-9,
13,
-2,
6,
42,
41,
57,
40,
29,
41,
1,
-19,
-30,
-13,
-56,
31,
15,
-51,
-28,
11,
36,
-40,
14,
-23,
9,
15,
7,
59,
-11,
48,
67,
30,
-20,
43,
38,
-16,
53,
14,
-26,
17,
8,
34,
19,
-38,
-1,
-9,
-45,
-45,
21,
21,
-53,
-23,
-38,
-65,
-11,
-16,
10,
35,
2,
33,
-48,
62,
-25,
6,
-75,
31,
72,
5,
-61,
-1,
-58,
-31,
6,
3,
-48,
-31,
57,
63,
35,
-24,
-31,
34,
16,
-23,
-52,
-47,
32,
55,
64,
-15,
14,
-9,
-17,
16,
7,
34,
-48,
-54,
19,
58,
41,
-60,
-48,
-13,
-12,
35,
28,
-10,
-46,
64,
-15,
35,
-14,
-39,
-16,
65,
-25,
15,
16,
-33,
13,
0,
-3,
99,
-26,
50,
14,
32,
26,
-4,
-8,
24,
6,
-59,
-9,
62,
56,
-10,
-5,
22,
-22,
-38,
-48,
26,
-12,
-20,
-74,
6,
14,
0,
52,
-11,
30,
-31,
27,
27,
15,
38,
-21,
-34,
-37,
-56,
13,
0,
7,
-44,
56,
0,
0,
-6,
38,
-33,
-40,
3,
81,
-33,
-36,
-4,
47,
42,
6,
6,
40,
19,
-6,
21,
-10,
36,
66,
-52,
-24,
-57,
-34,
-27,
-49,
-37,
5,
-13,
59,
17,
-52,
-28,
19,
-11,
-45,
2,
20,
28,
-24,
6,
2,
-66,
-88,
1,
-55,
25,
5,
-38,
22,
63,
-66,
4,
-43,
-10,
-4,
23,
66,
4,
68,
115,
-25,
-54,
19,
-32,
-56,
42,
47,
-34,
30,
8,
-32,
-22,
10,
-19,
38,
-67,
-83,
-82,
-48,
-43,
9,
13,
-36,
42,
65,
-7,
-13,
-59,
1,
-7,
-1,
-36,
-85,
5,
43,
-20,
-34,
29,
-33,
6,
1,
35,
-52,
-15,
-3,
-68,
89,
3,
9,
-11,
9,
45,
7,
8,
26,
0,
28,
-6,
38,
23,
-67,
21,
36,
2,
39,
-17,
-32,
-44,
51,
1,
-31,
-34,
34,
19,
19,
-42,
-33,
-52,
-35,
20,
-10,
-15,
1,
66,
2,
-71,
-7,
-57,
-51,
9,
55,
-7,
47,
24,
-26,
39,
78,
-24,
-21,
-14,
-28,
-71,
36,
29,
15,
19,
12,
-48,
-28,
5,
19,
15,
45,
-10,
18,
-71,
-42,
-16,
46,
1,
63,
36,
78,
64,
16,
15,
47,
22,
-74,
48,
-27,
-70,
4,
28,
-37,
-37,
11,
33,
41,
2,
-40,
-7,
25,
-38,
58,
1,
-6,
-39,
-6,
-33,
15,
-27,
21,
-27,
51,
-50,
-1,
26,
-2,
-50,
5,
8,
-13,
-22,
39,
7,
-12,
46,
-32,
-3,
30,
69,
15,
-76,
-53,
-17,
-22,
59,
23,
-36,
-37,
-46,
-31,
17,
34,
20,
42,
26,
-28,
45,
41,
71,
-45,
54,
-29,
-53,
0,
-26,
20,
32,
14,
56,
17,
74,
-90,
61,
-21,
-9,
69,
-46,
0,
-68,
30,
7,
-87,
44,
40,
-26,
15,
-18,
5,
-66,
-66,
-14,
11,
32,
-11,
62,
-26,
-30,
54,
45,
-24,
-13,
-37,
25,
6,
-20,
-21,
-8,
17,
-12,
31,
66,
-29,
-12,
33,
-55,
-23,
40,
27,
-11,
-3,
4
] |
North, J.
This suit in chancery was instituted by certain stockholders of the Youmans-Burke Oil & Gas Company, a Michigan corporation, against the organizers and officers of the corporation. Defendant Wyckoff was one of the four incorporators, but he did not become a director or officer. Other stockholders subsequently intervened as plaintiffs. As stated in appellants’ brief:
' "The bill is filed wholly in the interests of the corporation in behalf of the plaintiffs and all other stockholders who might intervene for the same purpose.” .
The corporation is also a party defendant, hut in this opinion, in speaking of defendants, unless otherwise indicated, we refer only to the individual defendants. Hereinafter we state more in. detail the grounds upon which plaintiffs assert the right of the corporation to a money decree against defendants, and also the right to have a receiver of the corporation appointed. Plaintiffs have appealed from a decree dismissing the bill of complaint.
Plaintiffs’ first contention is that defendants perpetrated a fraud upon the corporation by turning in to the corporation certain assets in consideration of which 30,000 shares of no par common stock of the corporation were issued to defendants, it being plaintiffs’ claim that the property or property rights transferred by defendants to the corporation were at most of only speculative value and possibly liabilities instead of assets.
The authorized capital stock of the corporation consisted of 30,000 shares of preferred stock of the par value of $1 each, and 60,000 shares of common stock of no par value. We quote in part the articles of incorporation:
“The purpose or purposes of this corporation are as follows: Buy, sell, and lease land, drill, operate, • and maintain oil and gas wells, construct pipe lines and refineries, and do all things in connection with the production of oil and gas. * * *
“All dividends paid by said corporation up to $30,000 shall be paid to the holders of said preferred stock and upon payment of dividends in the amount of $30,000 the said preferred stock shall be retired.
“The 60,000 shares of no par common stock of this corporation shall be voting stock, and shall participate in all dividends after the preferred stock has been retired.”
The corporation was authorized by the securities commission to sell stock in units of one share each of common and of preferred stock at $1. Plaintiffs are the holders of stock so issued. The 30,000 shares of no par common stock were issued to defendants in consideration of the defendants’ causing to be assigned to the corporation two items of property.
Item No. 1. This was an option on the so-called Chaffee No. 1 oil and gas lease covering 80 acres of land in Isabella county. Later there was compliance with the extended terms of the option and a paying well was developed. Dividends have been paid and the property is of such apparent value that plaintiffs’ attorneys declined to accept defendants’ offer to pay plaintiffs the amount they have invested, plus “expenses,” for their holdings. This option for the lease was listed in the corporate assets at its actual cost to defendants of $1,200. Appellants’ argument, now advanced, that the value of this option was “purely speculative” is not a persuasive reason for cancellation of the stock held by defendants or for rendering a money decree against them. But plaintiffs complain that the corporation was defrauded in that the defendants have made a secret profit. This claim on the part of plaintiffs arises from the following facts: Mrs. Russell, from whom the Chaffee No. 1 option lease was obtained by defendants Youmans and Burke, agreed with these men that in event they successfully carried out the terms of the Chaffee lease No. 1 by developing the property, a so-called LaFevre lease would be turned over by Mrs. Russell to Youmans and Burke. This understanding was entered into prior to the inception of the corporate organization. It is defendants ’ claim that it had nothing to do with the subsequent incorporation of the Youmans-Burke Oil & Gas Company, or with, the sale of stock therein; but instead was a matter wholly between Mrs. Russell on the one hand and Youmans and Burke on the other. Subsequently this LaFevre lease, through the action of defendants, who were in control of the affairs of the You-mans-Burke Oil & Gas Company, was assigned to and taken over by the Youmans-Burke Oil & Gas Company at a. cost of $3,000. This lease covered a 40-acre parcel adjacent to the land covered by the Chaffee No. 1 lease. A paying well was also developed on the LaFevre leasehold and by reason of the transaction just above noted it constitutes a part of the assets of the company in which plaintiffs are stockholders. The contentions of the respective parties presented an issue of fact as to which the trial court found in favor of the defendants. Our review of this record discloses nothing which would justify disturbing such determination. The testimony does not reveal any misleading or false representation made by defendants to plaintiffs touching the rights in the LaFevre lease. Plaintiffs are not disposed to renounce their rights therein but instead are before the court asserting a right to have their corporation reimbursed for its investment in the LaFevre lease, or that the stock of defendants be canceled pro tanto. Under the record plaintiffs are not entitled to have such relief decreed.
Item No. 2. This item, assigned to the corporation, was the vendee’s interest in an executory land contract for the purchase of 122 lots in Marquette Meadow Subdivision No. 1, located partly in the city of Detroit and partly in the township of Bedford, Wayne county, Michigan. The contract for the purchase of these lots by defendant Wyckoff was credited with the payment of $925, and the unpaid portion of the purchase price was $15,000 payable in monthly instalments. At the time the vendee’s interest in this contract was assigned to the corporation (June 18, 1934) the monthly payments were in arrears and there were delinquent taxes aggregating $4,135.74. By the terms of the assignment the corporation assumed and agreed to perform the vendee’s contractual obligation. Appellants assert that the actual value of the lots is only $12,200 and that as the result of this transaction the corporation took on a liability instead of receiving a consideration for the 30,000 shares of common stock issued to defendants. Here ag’ain the record presents a conflict of testimony as to the value of the vendee’s interest in this land contract. In the showing before the securities commission the land was valued at $67,500, and after deducting the unpaid balance of the contract price in the amount of $15,000 and for unpaid taxes $3,000, the “net worth” of the contract was listed at $49,500. Even if, as appellants assert, it might reasonably be found there was an overvaluation of the vendee’s interest in this land contract, still vie do not think it follows that plaintiffs in a cóuid of equity are entitled to a decree. The whole set-up of corporate assets was an open book in the records of the securities commission before plaintiffs invested in this company’s stock. No one can doubt that the investors in this company knew that they were purchasing stock in a highly speculative venture. The plan was that plaintiffs’ total investment should be repaid to them as holders of preferred stock before defendants or any other person who held common stock only, should participate in the profits of the corporation. The speculative aspect of the venture had to do not only with the corporation’s oil and gas operations, but also with its undertaking to carry out the terms of the land contract in which it became the assignee of the vendee’s interest.
Some of plaintiffs testified that defendant Yon-mans represented that the lots were paid for, but evidently the trial judge was not much impressed by this testimony, nor are we. At least it was not proven that any of plaintiffs made their investment in reliance upon such representation. ' Without such proof plaintiffs could not have obtained relief in a suit for fraud brouglit by them for their own direct benefit against defendants; and we think likewise without such proof plaintiffs should not, in this equity case, be permitted to recover indirectly by a suit allegedly brought for the benefit of the corporation. But recovery herein is not sought on the theory that plaintiffs were defrauded incident to the purchase of their stock. Instead plaintiffs are asserting defendants defrauded the corporation by taking 30,000 shares of no par common stock without turning into the corporation assets which constituted fair consideration and that this was done in bad faith.
“Where shares are issued for any consideration other than cash, the judgment of the board of directors as to the value thereof shall be conclusive unless it shall be shown that the directors acted in bad faith or failed to exercise reasonable care in determining such value.” Wilgus & Hamilton, Michigan General Corporation Law (1st Ed.), § 21.
Whatever later statements Youmans may have made as to the lots having been paid for is of little, if any, persuasive force on the issue of “bad faith” in the face of the fact that plaintiffs through their attorneys have refused to surrender their stock in consideration of full repayment of their investment in the corporation. Subsequent developments quite conclusively refute bad faith on the part of defendants in taking 30,000 shares of the corporation’s no par common stock. The later development of the oil and gas interests transferred to the corporation discloses that defendants in fact g'ave to the corporation adequate consideration for the stock they received. The interest taken in the lots was merely an additional and collateral undertaking with a possibility of saving investors from total loss in case the oil and gas venture failed. One of plaintiffs testified as follows:
“He (Youmans) was putting that subdivision in as collateral for our oil stock, ‘as a protection,’ he said, ‘in case every well was a dry well,’ I realize that could happen to us, so we would have to wait five years for the return of our money (from the sale of the lots) and for every dollar we put in, we would receive two out of the subdivision.”
Another of plaintiffs on direct examination testified:
“He (Youmans) said, ‘This oil stock was guaranteed by real estate and in case if the well was brought in as a dry hole, it would take five years before we could get our money back, and it would pay two for one.’ * *
“Q. What, if anything, did he say about the value of this real estate?
“A. Well, I just can’t remember about the value of it, but he said it was appraised at $67,000. * *
“Q. What, if anything, did he say about any incumbrance on the land?
“A. None whatever.
- “Q. Did he tell you anything about the quantity of delinquent taxes against it?
“A. No, sir. We thought everything was taken care of.
“Q. After you talked you bought some more stock?
“A. Well, I did because the well came in—
“Q. I say, after that you bought some more stock?
“A. Yes, sir, I bought it on the strength of the well coming in. ’ ’
The circuit judge recited in his final decree that he did not find, defendants had done anything that “constituted legal fraud against the corporation or its stockholders.” As applied to the phase of the case just above considered, this was a finding against plaintiffs’ contention. On the record we would not be justified in reversing this holding of the trial judge.
Other items as to which plaintiffs assert the defendants, or some of them, misappropriated the corporation’s funds, for which a money decree is sought, may be briefly listed as follows: (a) Fraudulent payment of $1,000 as a first payment on the so-called Terry oil and gas lease; (b) an $875 corporation check given by Youmans to Wyckoff; (c) a $2,350 corporation check drawn by Youmans to himself and cashed by him; (d) a claimed overcharge of $128 by Youmans in settling the account of Frederick Grimshaw, a geologist, against the corporation; (e) seven corporation checks totaling $281.21, claimed to have been used by Youmans to pay his personal obligations.
Youmans and some or all of the other defendants were simultaneously interested in promoting other corporations engaged in gas and oil developments. Some of them had individual interests and there was the Youmans-Dalton Oil & Gas Company, also the Youmans-Wyckoff Oil & Gas Company. Undisputed testimony shows that at times money belonging to the Youmans-Burke Oil & Gas Company was used in paying obligations of the other enterprises, and likewise money belonging to or at least on deposit in the name of defendant Wyckoff was advanced to and used for the benefit of the Youmans-Burke Oil & G-as Company. Nothing like proper records were kept of such transactions. The defendants were in charge of the affairs of the Youmans-Burke Oil & Gas Company, and their failure to keep proper records merits severest condemnation. In his final decree the circuit judge finds the individual defendants were the organizers and controlling officers of the Youmans-Burke Oil & G-as Company from its organization until sometime after suit was started “and as such conducted its business affairs in a grossly careless and negligent maimer, but not to' the extent that it constituted legal fraud against the corporation or its stockholders. ’ ’
This suit was started January 8, 1935. Prior thereto Touche, Niven & Company, licensed public accountants, had audited the affairs of the defendant corporation and prepared a balance sheet as of November 15, 1934, and books of account for the corporation based thereon were opened. The audit and balance sheet disclosed expenditures of corporate funds in excess of the amounts received for the sale of stock, which was the sole source of prior income.
Item (a). Adverting particularly to item (a) above, if, as we think the record shows, the defendants were justified in charging the corporation $3,000 for the LaFevre lease, there is no ground of complaint because of $1,000 of corporate money having been used in paying for the Terry lease. The corporate money so used was credited as a payment on the $3,000 that the corporation paid for the LaFevre lease.
Item (b). Defendant James E. Burke, the secretary-treasurer of the Youmans-Burke Oil & Gas Company, was in ill health at the time the corporation was in the process of developing* its properties. At the time the case was heard Burke was a patient in a tuberculosis hospital and so ill that he was not able to be present as a witness. Defendants claim that because of Burke’s condition and for convenience, the corporation’s financial transactions were largely carried on through a bank account in the name of defendant Wyckoff. Checks were issued either by or through the authority of defendant Youmans. Undisputed testimony shows that Wyckoff, one of the largest stockholders, advanced substantial sums of money with which to meet the corporation’s obligations. He permitted free use of money on deposit in his personal bank account. In turn, as payment, corporation moneys were deposited in Wyckoff’s account. For months no books of account were kept by the corporation of such transactions. Youmans testified that he made a ■record at the time “ona yellow working sheet that I keep in my office. ’ ’ He could not find this sheet at the time of the trial. We quote his testimony in part:
“I had a working sheet on which the first I carried down was the name of the stock buyer, the amount of money that he had paid in, and then carried a long list of columns, and then the columns when they paid additional money, that when the stock certificate was issued and the number of stock certificate, the sales, person who sold them, and the amount of 15 per cent, commission and the amount that would have to be accounted for on the 85 per cent, for the corporation. * * *
“ Q. Your conception of the bookkeeping requirements was, that yon knew you were going to sell so much stock that you could always arrive at the total so many shares, does it not?
“A. Yes.
“Q. At any time the corporation needed an accounting, all you had to do was to take 85 per cent, of that and that was the money that belonged to the corporation?
“A. Yes. * * * I admit it is good business to keep those (books of account), but under the circumstances I was working, our secretary-treasurer being ill and not around the office, I just had to make out the best way I could.”
By use of checks, check stubs, bank books and other sources of information the accounting firm of Touche, Niven & Company was able to audit the corporation’s affairs, prepare a balance sheet, and furnish the set-up for books of account, as above noted. Touching this audit, Mr. Waugh, manager of the accounting company, testified:
“Q. Then, shall we * * * ask you whether or not you found as a result of your investigation or audit that all funds thus deposited in accounts of others and belonging to the Youmans-Burke Oil & Gas Company were, in fact, checked out in behalf of the corporation?
“A. Oh, yes.
“Q. Yon found that absolutely to be the fact?
“A. Yes, sir.”
Aside from this general audit and the matter of subsequent ratification by action of the corporation’s directors, the record as to specific items for which plaintiffs assert the corporation should have a money decree, is indefinite and not as decisive as might be desired. We shall not attempt to detail herein all the record. As to this item (b), a corporation check for $875 given by Youmans to Wyckoff, we quote briefly from Wyckoff’s testimony:
“Q. This $875 loan, was that made in one—
“A. I believe I testified to that.
“Q. —you did not say whether it was made at one time. You said it was part of many loans that you made.
“A. It might have been part of the same loans given back.
“Q. You cannot recollect whether it was all one time or not?
“A. I cannot say.
“Q. You do not recollect ever having struck a balance or settled the account with the corporation?
“A. My opinion is that the corporation owes me no money.”
On cross-examination defendant Youmans testified:
“Q. I show you exhibit 55, check by YoumansBurke Oil & Gas Company for $875 to Mr. "Wyekoff and by him indorsed. Why was that check drawn?
“A. Well, I know in the very beginning that Mr. Wyekoff advanced some money and that money I had in his account — we had advanced some money for pre-organization, incorporation expense to Lansing, and so forth — now, unless those are moneys that had gone into the Youmans-Burke account, and at that time was deposited in Mr. Wyekoff’s account to cover those organization expenses — secretary of the State, securities commission, appraisals, stock certificates and so forth — I don’t know what all that would be, but that would be the only explanation I could make of it. * * *
“Q. This is a check drawn by you paid to Mr. Wyekoff for $875? You cannot explain any more than what you have already explained?
“A. That is the best explanation I can make; that is the best to my memory and knowledge. ’ ’
While the above and other testimony concerning this item is of a general character and none too satis factory, still it is corroborated by the other general facts and circumstances disclosed by the record. It satisfied the trial judge that plaintiffs were not. entitled to have a decree for this item, and on this record we will not disturb such holding.
Item (c). This is the corporation check for $2,350, dated May 23, 1934, drawn by defendant Youmans, payable to himself, and indorsed and cashed by him.
, The bill of complaint specifically charges this item to Youmans. His answer contains only an indefinite and wholly unsatisfactory explanation. His brief presents no reasonable defense, and his own testimony in effect is summed up in this briefly quoted extract from his cross-examination:
“Q. You cannot tell us what became of that $2,350?
“A. I don’t recall it.
“Q. You noticed that check in the account?
“A. Yes, sir.
“Q. You got that money May 23d?
“A. Yes, sir.
“Q. You cannot tell anything about what you did with it?
“A. I don’t recall.”
Youmans admits drawing the check to himself by means of which he obtained the above sum of money belonging* to the corporation of which he was an officer. He was bound to give a just accounting therefor, or be charged therewith. Having wholly failed in anything like a just accounting, he is properly chargeable with the item and with accrued interest from May 23, 1934.
Item (d). This involves a receipt for $495 taken from Mr. Frederick Grimshaw, a geologist, purporting to be for payment in that amount for services rendered to the defendant corporation by Grimshaw. In fact he was paid in cash by Youmans only $367. The discrepancy of $128 is explained by Grimshaw’s testimony on cross-examination that he also received from Youmans 250 shares of common and preferred stock in the defendant corporation. We think this explanation of plaintiffs’ own witness must be accepted and the item of alleged overcharge of $128 held not to have been proven.
Item (e). This remaining item pertains to a group of seven corporation checks totalling $281.21. Plaintiffs claim these checks were used to pay You-mans’ personal obligations, not those of the corporation. In his original answer Youmans states these checks were drawn “for the defendant corporation purposes and growing out of the lawful, legal and regular operation of said company business. ” In a supplemental answer he sets up that these checks were used by him and credited as part payment of .commissions due him from the defendant corporation. On cross-examination Youmans admitted that at least some of the items paid by these checks were his personal obligations. His claim that the checks were credited by him against commission due him, is not itemized, and is so general and so lacking in persuasiveness that we think defendant Youmans should be charged with the consequence of his own carelessness and neglect by being required to account for this item of $281.21, -with interest thereon.
The bill of complaint also contains in its prayer for relief the following:
‘ ‘ That if it shall appear necessary in order to preserve the moneys and other property of the corporation, a receiver be appointed by this honorable court therefor with adequate powers so to do. ’ ’
Appointment of a receiver was denied by the circuit judge and we think properly so. As bearing upon the necessity or propriety of appointing a re ceiver the following facts are pertinent. It is noted in the decree entered in the circuit court that after the case was submitted to that court “in pursuance to suggestions of counsel for various parties and suggestions of the court, the stockholders have elected a new board of directors.” The original board, consisting of three members, has been increased to seven. As hereinbefore noted, following the audit of the corporation’s affairs, a bookkeeping system of keeping account of the business and affairs of the corporation was inaugurated. The corporation is being operated successfully and during the calendar year next following the filing of the bill of complaint two 4 per cent, dividends were paid. Nothing short of a showing of necessity because of some peculiar circumstances will justify the appointment of a receiver for a going, solvent corporation. Central Holding Co. v. Bushman, 238 Mich. 261; Morehead Manfg. Co. v. Washtenaw Circuit Judge, 254 Mich. 697. No such showing is made in the instant case. It is to be presumed that plaintiffs, or any other aggrieved stockholder, in event of future irregularities, will have adequate remedy and redress therefor.
Appellants seek modification of the provisions in the decree touching the reimbursement of plaintiffs for expenses incurred incident to this litigation. It is pointed out that although the trial judge gave plaintiffs a lien on defendants’ stock for the expenses decreed, no provision is made for the enforcement of such lien. Provision may be made in the decree to be entered in this court for enforcing the lien decreed to plaintiffs on defendants’ stock, but otherwise the provisions of the decree entered in the circuit court as to reimbursing plaintiffs for expenses will not be modified, it being our opinion that the same is suitable to the circumstances of this case.
Further discussion of questions suggested by counsel is not necessary to decision herein. Defendants perfected a cross-appeal, but the reasons assigned in support of this cross-appeal are not discussed in any of the briefs. The cross-appeal is considered abandoned.
The decree entered in the circuit court dismissing plaintiffs’ bill of complaint will be reversed and a decree entered in this court in accordance herewith. Plaintiffs will have costs of both courts to be taxed against the individual defendants, excepting Norman R. Wyckoff, who was neither a director nor an officer.
Fead, C. J., and Wiest, Butzel, Bushnell and Sharpe, JJ., concurred. Toy, J., took no part in this decision. Potter, J., did not sit. | [
54,
31,
10,
6,
10,
41,
18,
15,
5,
50,
30,
20,
49,
28,
36,
-11,
-12,
9,
1,
16,
-51,
-38,
-14,
-14,
-1,
-24,
1,
0,
-5,
16,
-24,
-30,
-10,
-55,
-27,
-2,
-12,
15,
-10,
28,
12,
52,
75,
32,
-8,
-31,
-3,
-26,
-11,
43,
44,
2,
21,
-29,
-25,
-18,
-8,
-7,
22,
2,
3,
-32,
78,
25,
32,
-21,
-16,
23,
12,
-8,
-44,
29,
-18,
-1,
70,
-24,
20,
-36,
15,
-18,
-20,
-5,
23,
-32,
-45,
43,
-31,
1,
5,
-7,
-21,
-13,
-69,
-13,
16,
23,
16,
9,
16,
10,
-24,
-31,
-67,
15,
10,
20,
13,
-19,
-10,
-26,
6,
-23,
2,
-17,
-20,
-16,
-28,
-2,
-16,
-34,
-5,
7,
6,
40,
37,
25,
-6,
-15,
-65,
31,
31,
-37,
-3,
10,
46,
38,
3,
-31,
-1,
4,
-14,
21,
-14,
20,
-12,
60,
5,
0,
23,
-22,
20,
-6,
-12,
45,
-15,
-19,
-38,
14,
59,
-71,
23,
-59,
-26,
-23,
-45,
15,
28,
6,
-37,
42,
18,
-36,
-54,
-58,
-38,
17,
-9,
-3,
-80,
-46,
12,
40,
-18,
22,
5,
15,
0,
11,
-23,
-8,
62,
2,
-8,
-11,
-32,
-11,
30,
48,
0,
45,
12,
-63,
-15,
-36,
22,
-7,
30,
-20,
-21,
-34,
5,
73,
7,
-33,
-44,
15,
-21,
-82,
41,
-44,
56,
-46,
4,
26,
0,
-24,
40,
-27,
-11,
-6,
14,
-86,
29,
3,
-61,
-14,
34,
2,
24,
15,
-34,
-17,
-26,
-35,
17,
19,
-13,
-18,
-31,
52,
0,
-33,
-27,
45,
-2,
-7,
-40,
-4,
-29,
-18,
34,
13,
-113,
41,
3,
-47,
11,
-20,
-30,
4,
14,
-5,
4,
46,
-38,
-19,
24,
-44,
-19,
12,
1,
-9,
-20,
-5,
-40,
-11,
-30,
-4,
8,
-21,
-9,
54,
37,
-1,
24,
-4,
-6,
-23,
35,
14,
-43,
12,
41,
-12,
-3,
42,
-37,
-22,
-7,
-2,
53,
32,
8,
-44,
27,
-22,
0,
82,
17,
-40,
23,
-11,
8,
4,
12,
-10,
65,
-50,
5,
15,
23,
-46,
11,
17,
-37,
16,
19,
-15,
-19,
5,
30,
1,
25,
5,
5,
18,
30,
-57,
-17,
9,
-38,
-5,
15,
24,
-12,
-36,
9,
6,
-73,
17,
24,
-23,
-15,
-30,
26,
-2,
-24,
-29,
-2,
62,
16,
25,
-50,
21,
22,
6,
-40,
1,
-54,
0,
6,
-13,
48,
-42,
40,
-5,
-17,
-18,
-27,
0,
-46,
28,
-22,
57,
-32,
-60,
-40,
-7,
-18,
69,
-4,
25,
-11,
28,
-25,
-36,
10,
24,
-27,
23,
-20,
-12,
-1,
-5,
-30,
42,
18,
16,
71,
-30,
53,
-9,
-45,
-50,
29,
-68,
19,
-2,
-34,
-5,
-59,
5,
6,
35,
18,
2,
-43,
-30,
7,
-12,
-12,
-13,
21,
-15,
4,
-15,
9,
-12,
33,
-13,
39,
39,
-30,
0,
-32,
25,
27,
-40,
2,
-23,
-16,
-12,
15,
-16,
4,
42,
17,
14,
28,
45,
33,
25,
12,
27,
-34,
-33,
-23,
12,
9,
-14,
-1,
34,
-51,
-23,
-30,
-23,
26,
37,
40,
7,
18,
23,
19,
-24,
28,
-25,
10,
-23,
12,
-18,
3,
-16,
12,
1,
-4,
40,
-30,
-41,
-15,
48,
-33,
-26,
30,
-12,
-51,
17,
-23,
6,
35,
54,
-1,
-11,
-40,
-22,
-87,
0,
12,
-28,
19,
-17,
-4,
-33,
27,
41,
38,
-1,
6,
-4,
-41,
-51,
-18,
31,
-2,
-13,
57,
6,
-3,
-27,
-15,
-28,
-46,
22,
-5,
76,
43,
30,
52,
-14,
11,
8,
-58,
26,
5,
-45,
74,
-16,
-2,
-5,
46,
3,
-27,
1,
29,
36,
52,
-2,
14,
21,
-49,
18,
28,
-5,
51,
-23,
-37,
11,
34,
-13,
-7,
-40,
-46,
-50,
3,
-25,
43,
16,
76,
6,
-5,
27,
-48,
-24,
-38,
-41,
-54,
-15,
-31,
14,
-3,
0,
-24,
-6,
28,
7,
63,
-5,
-41,
-18,
12,
-28,
50,
-35,
44,
18,
14,
7,
-29,
6,
6,
28,
-15,
-34,
-17,
12,
45,
7,
-40,
10,
-40,
-9,
6,
-40,
22,
-3,
44,
-16,
19,
39,
7,
28,
0,
4,
16,
38,
-9,
32,
17,
-24,
20,
-50,
45,
-27,
2,
16,
-7,
-37,
47,
-32,
56,
-34,
9,
-3,
19,
15,
38,
34,
-4,
11,
-32,
48,
-68,
-9,
-14,
21,
48,
-19,
53,
35,
26,
-34,
7,
-22,
-37,
44,
-59,
-19,
25,
-42,
26,
0,
-40,
10,
-5,
40,
32,
7,
-17,
4,
20,
5,
30,
-56,
13,
-1,
-4,
10,
28,
-8,
-31,
-40,
12,
-43,
0,
32,
31,
49,
-7,
-30,
-45,
0,
-37,
2,
23,
27,
15,
18,
-1,
-55,
-6,
-25,
38,
-8,
-35,
7,
-4,
41,
-4,
41,
47,
42,
-20,
39,
16,
68,
23,
-8,
-67,
-30,
-27,
-3,
0,
-19,
2,
0,
-20,
3,
-55,
5,
-22,
-33,
-42,
14,
-8,
-17,
31,
19,
-5,
17,
18,
42,
-32,
-20,
33,
-18,
-15,
-49,
-11,
16,
-14,
37,
-14,
4,
43,
-26,
-14,
10,
16,
9,
38,
-49,
-51,
14,
3,
13,
8,
-31,
22,
-5,
8,
1,
-54,
-29,
37,
24,
17,
16,
-55,
-8,
-33,
-33,
0,
-20,
16,
26,
40,
7,
-15,
5,
-53,
36,
43,
-22,
-52,
35,
-8,
-13,
31,
-4,
9,
-70,
9,
-15,
-73,
19,
-3,
-2,
-72,
0,
-36,
22,
0,
9,
-14,
32,
28,
-31,
-14,
20,
-35,
53,
36,
29,
-19,
-14,
33,
-51,
-46,
11,
-27,
9,
-25,
33,
-38,
8,
3,
42,
10,
-32,
-25,
-2,
-16,
61,
5,
8,
27,
58,
48,
13,
-29,
22,
14,
-18,
-42,
-41,
-20,
15,
42,
-39,
-8,
15,
-63,
18,
-21,
15,
-24,
35,
15,
-10,
-14,
36,
31,
38,
20,
32,
-29,
17,
63,
26,
-52,
-11,
7,
30,
-25,
10,
-31,
-4,
15,
41,
38,
-1,
-17,
-49,
-2,
-5,
-1,
-22,
-5,
-58,
39,
30,
-5,
-17,
-1,
13,
-31,
10,
-46,
-8,
-21,
21,
-28,
-22,
20,
13,
-27,
-5,
-33,
29,
-33,
-20,
-3,
28,
9,
17,
11,
-47,
11,
-17,
-11,
-35,
33,
-4,
-37,
-54,
-16,
-23,
-15,
9,
-16,
17,
31,
-22,
1,
11,
12,
-12,
-47,
-8,
32,
30,
46,
68,
44,
20,
35,
-3,
21,
47,
4,
-41,
54,
-7,
-37,
-1,
-10,
65,
23,
9,
33,
7,
-41,
-75,
19,
53,
-23,
51,
-18,
-5,
15,
23,
-6,
-40,
-22,
44
] |
Fead, C. J.
In action for injuries sustained by plaintiff, while she was a customer in defendant’s store, defendant had directed verdict.
In the center of an aisle, eight or nine feet wide, defendant had put a table, 30 inches in width, for the display and sale of purses. Empty purse boxes were piled under the tables by clerks and periodically removed. They were piled two rows deep. The boxes were about 6 inches high, 9 wide and 12 long.
Plaintiff claims that as she was walking beside the table in a crowd of people she stepped into a box in the middle of the aisle, which “looked like a box that possibly they had large purses in,” she tried to kick it off her foot and fell. She said that as she sat on the floor she saw that the boxes under the table were piled up all right and were. not protruding.
The merchandise manag*er, who was close by when plaintiff fell, said the boxes were piled in a single row, double height, and one was slightly protruding from the table and looked as if it had been stepped on.
It is the duty of a storekeeper to provide reasonably safe aisles for the customers. Brown v. Stevens, 136 Mich. 311 (16 Am. Neg. Rep. 101). The proprietor is liable for injury resulting from an unsafe condition caused by the active negligence of himself and his employees, Wine v. Newcomb, Endicott & Co., 203 Mich. 445; and he is liable when the unsafe condition, otherwise caused, is known to the storekeeper or is of such a character or has existed a sufficient length of time that he should have knowledge of it. Yarington v. Huck, 218 Mich. 100.
The difficulty with plaintiff’s case is that there was no evidence that the box which she claims was in the aisle and tripped her was a pnrse box; nor, if it was, that it had been piled negligently under the table; nor how it got into the aisle; nor that defendant had knowledge of its being there; nor that it was in the aisle long enough so defendant • should have known of it. Fuller v. Wurzburg Dry Goods Co., 192 Mich. 447; Boylen v. Berkey & Gay Furniture Co., 260 Mich. 211. The court correctly directed the verdict for failure of proof of negligence.
Affirmed.
North, Wiest, Btjtzel, Bushnell, Sharpe, Potter and Chandler, JJ., concurred. | [
-72,
-43,
39,
8,
-40,
-18,
20,
57,
-24,
27,
9,
22,
35,
38,
-45,
-34,
31,
41,
-29,
-4,
30,
-36,
-46,
51,
0,
-28,
14,
-47,
13,
50,
-34,
4,
17,
-44,
-26,
74,
8,
5,
-13,
-45,
6,
46,
17,
-2,
11,
-29,
75,
13,
70,
-6,
49,
-43,
-56,
-38,
26,
-5,
25,
21,
41,
4,
53,
-9,
12,
-16,
36,
-13,
4,
-25,
-20,
14,
20,
26,
-13,
-17,
-9,
-35,
-46,
54,
5,
0,
20,
-37,
11,
-15,
-31,
24,
-37,
29,
-17,
-43,
-32,
-37,
-3,
-1,
-6,
44,
-5,
1,
25,
0,
-47,
31,
-58,
-16,
-6,
8,
31,
-41,
-65,
-21,
-80,
5,
-3,
6,
-14,
5,
28,
24,
16,
29,
67,
21,
6,
-33,
-18,
20,
60,
-25,
-10,
17,
32,
15,
-59,
18,
14,
28,
-24,
-10,
-15,
-13,
32,
36,
-2,
0,
-32,
2,
-35,
46,
-54,
-54,
-12,
35,
7,
-40,
40,
17,
-5,
-25,
32,
-17,
5,
-46,
-6,
-24,
-29,
-30,
25,
-31,
-27,
-5,
15,
0,
19,
-22,
20,
40,
30,
-17,
-40,
-32,
-9,
-19,
13,
4,
-25,
-6,
-6,
-22,
30,
16,
29,
-11,
-52,
-18,
-24,
21,
-29,
49,
38,
-79,
4,
-47,
-27,
-61,
51,
26,
-46,
-26,
-7,
-86,
-27,
23,
-50,
-19,
-5,
-48,
18,
-54,
-29,
-2,
-72,
47,
21,
17,
-43,
-29,
66,
8,
33,
-15,
-30,
3,
-1,
-17,
47,
-2,
-20,
-68,
28,
14,
6,
-25,
-35,
17,
-30,
-11,
-10,
32,
-28,
26,
17,
25,
-17,
-15,
-53,
-57,
-6,
63,
-81,
-5,
-10,
72,
13,
28,
24,
43,
33,
18,
-53,
-13,
3,
-4,
58,
-11,
17,
-25,
-31,
62,
42,
10,
-8,
17,
-29,
-32,
-83,
4,
-6,
8,
-10,
13,
-20,
15,
-45,
-11,
61,
9,
15,
3,
-26,
-14,
-46,
34,
0,
-9,
9,
50,
5,
-15,
-2,
-16,
-7,
-38,
1,
-63,
-13,
-24,
8,
8,
24,
4,
-51,
-27,
-15,
34,
-14,
-76,
-3,
-47,
26,
6,
-9,
30,
36,
-51,
-27,
23,
21,
-22,
1,
15,
30,
-7,
-21,
8,
-15,
8,
22,
-27,
-15,
-63,
-13,
-37,
73,
-20,
36,
-17,
-11,
21,
24,
47,
48,
-45,
41,
-17,
0,
-41,
17,
-42,
-52,
52,
-24,
-52,
52,
-8,
-45,
-59,
14,
-47,
40,
54,
17,
-44,
0,
-12,
-30,
-24,
7,
-37,
19,
61,
-42,
-11,
67,
45,
1,
-14,
-25,
46,
-13,
23,
-20,
35,
26,
16,
-51,
13,
13,
-52,
63,
22,
17,
15,
-30,
-9,
-20,
10,
28,
-33,
8,
-7,
44,
2,
2,
-26,
45,
-62,
-39,
-3,
0,
-12,
-35,
-12,
-30,
-17,
23,
6,
-40,
32,
14,
-6,
-12,
-29,
-51,
7,
21,
73,
-7,
57,
45,
-29,
44,
-33,
55,
-16,
51,
36,
-2,
-3,
49,
-60,
2,
-17,
-39,
21,
25,
-12,
16,
-94,
0,
-16,
-35,
-23,
14,
19,
45,
41,
-9,
-5,
-20,
-3,
8,
61,
40,
-19,
-33,
-11,
12,
-43,
-12,
21,
16,
-15,
17,
-1,
-12,
37,
-20,
28,
-24,
13,
-45,
-19,
8,
22,
41,
-31,
-37,
28,
36,
12,
-27,
26,
21,
-5,
11,
17,
-39,
-20,
-30,
11,
37,
-10,
-46,
61,
-19,
-7,
-15,
-17,
10,
-1,
-10,
27,
-3,
-23,
23,
75,
7,
-55,
33,
-35,
-28,
32,
8,
-37,
26,
-8,
0,
-10,
14,
61,
78,
33,
20,
-10,
-13,
6,
-13,
-23,
0,
12,
-86,
28,
-23,
-6,
46,
-20,
24,
-28,
74,
-9,
-41,
-2,
-12,
18,
-35,
19,
-20,
15,
-37,
-36,
0,
8,
33,
0,
-24,
-7,
54,
9,
-18,
-3,
29,
-49,
10,
-12,
39,
-20,
-55,
-5,
7,
-55,
14,
-58,
-20,
-10,
30,
-36,
5,
-25,
-30,
9,
32,
-9,
-13,
-44,
-18,
-15,
5,
-19,
5,
23,
-24,
7,
-5,
42,
0,
-22,
8,
-16,
-23,
-47,
40,
-19,
72,
0,
-23,
58,
24,
25,
-34,
-42,
17,
-3,
32,
20,
-2,
-5,
-32,
24,
14,
12,
-9,
9,
-10,
22,
5,
11,
-53,
31,
-47,
-15,
-44,
17,
-44,
-13,
33,
38,
-17,
-10,
2,
-34,
-9,
32,
-5,
-1,
39,
-7,
18,
-27,
2,
-30,
-20,
45,
32,
-3,
-36,
10,
21,
5,
14,
-85,
-36,
-16,
12,
-8,
1,
16,
29,
-57,
-13,
-19,
-14,
-5,
-12,
-2,
32,
9,
-3,
-5,
-3,
-3,
-46,
26,
-9,
38,
35,
35,
-25,
-26,
-31,
16,
1,
-41,
62,
-19,
-5,
-20,
74,
23,
28,
-3,
34,
-53,
-28,
20,
-14,
39,
-9,
-35,
83,
-6,
-8,
-17,
-12,
-30,
-2,
-14,
17,
14,
-9,
-3,
50,
-11,
7,
-33,
-42,
-63,
9,
-23,
-6,
-41,
-37,
-18,
-26,
-38,
17,
35,
30,
5,
-4,
0,
0,
-15,
4,
6,
-31,
37,
29,
-43,
39,
-21,
19,
-37,
52,
32,
-8,
1,
29,
10,
23,
-8,
-18,
-18,
-50,
-20,
-20,
28,
-18,
-8,
-51,
-12,
-9,
-13,
-14,
17,
12,
47,
-10,
12,
4,
-40,
-1,
-44,
-33,
-21,
24,
-11,
53,
4,
-59,
-4,
36,
6,
-16,
-67,
-21,
-98,
5,
-27,
54,
-7,
-9,
12,
-2,
12,
-3,
26,
29,
-58,
-21,
15,
74,
80,
-18,
2,
42,
-67,
-3,
4,
24,
-1,
39,
-40,
-8,
-38,
-8,
-1,
9,
15,
20,
48,
14,
27,
-56,
-12,
-43,
25,
-40,
12,
49,
42,
12,
77,
26,
-43,
-19,
14,
-57,
-33,
-42,
-28,
2,
-9,
14,
45,
23,
-1,
-9,
-7,
-46,
3,
36,
24,
-9,
25,
-4,
-39,
4,
0,
1,
-32,
16,
37,
10,
8,
32,
3,
15,
25,
-43,
-9,
9,
1,
63,
48,
26,
10,
-9,
36,
-26,
12,
-12,
28,
55,
5,
40,
38,
44,
10,
-16,
39,
-12,
-18,
37,
20,
13,
50,
-13,
-55,
-17,
15,
-23,
-5,
14,
7,
-28,
-28,
18,
24,
13,
-35,
24,
58,
-32,
26,
-52,
5,
18,
-47,
-69,
27,
-9,
60,
24,
42,
63,
22,
60,
-27,
-27,
17,
-8,
-48,
-1,
2,
11,
-1,
-18,
-38,
0,
42,
16,
-48,
4,
10,
-6,
-4,
-34,
5,
0,
4,
-47,
-10,
47,
-4,
-23,
0,
-3,
12,
13,
-13,
6,
-12,
26,
0,
-9,
32,
15,
10,
-15,
27,
-39,
-9,
51,
55,
41,
13,
-14,
32,
-50,
-17,
32,
52,
28,
4
] |
Toy, J.
The plaintiffs, as trustees in bankruptcy of the estate of Clarence Saunders Stores, Incorporated, brought this action against defendant, one of the directors of the bankrupt corporation, to recover the amount of dividends claimed to have been unlawfully and negligently declared by and paid out of the funds of the corporation. The trial court after trial without jury found for plaintiffs and entered judgment against defendant in the sum of $83,178.33, which encompassed the dividend declared July 27, 1929, in the amount of $31,787.96, the dividend declared October 22, 1929, in the amount of $31,787.90, together with the items of interest thereon. Defendant appeals.
The liability sought to be imposed upon defendant is based upon the statutes of the State of Delaware, under which the corporation was incorporated, as well as the common law.
Section 34 of the general'corporation law of the State of Delaware (Rev. Code Delaware 1915, § 1948, as amended by 36 Delaware Laws, chap. 135, § 16) contains provisions authorizing the directors of corporations, created under that act, to declare and pay dividends either out of its net assets in excess of its capital, or, if no such excess exists, out of its net profits for the fiscal year then current and/or the preceding fiscal year. It also contains the following proviso:
“A director shall be fully protected in relying in good faith upon the books of account of the corporation or statements prepared by any of its officials as to the value and amount of the assets,- liabilities and/or net profits of the corporation, or any other facts pertinent to the existence and amount of surplus or other funds from which dividends might properly be declared and paid.”
Section 35 of such act (Rev. Code Delaware 1915, § 1949, as amended by 35 Delaware Laws, chap. 85, § 17) contains the provision that:
“In case of any wilful or negligent violation of the provisions of this section, the directors under whose administration the same may happen shall be jointly and severally liable, in an action on the case, at any time within six years after paying such unlawful dividend, to the corporation and to its creditors, or any of them, in the event of its dissolution or insolvency, to the full amount of the dividend so unlawfully paid, with interest on the same from the time such liability accrued.”
It is upon this last above quoted section that the trial judge, in his finding, based the liability of defendant.
In his opinion the trial judge found that there were no “funds, earnings or profits, at the time of the meetings of July 15, 1929, and October 22, 1929, from which any dividends could be or should have been declared and paid.”
Bather than make a summary of the voluminous testimony in this regard as set forth in the record, we quote from such a compendium made by the circuit judge in his opinion denying a motion for new trial, which summarization, we think, sufficiently covers the situation, and which is as follows:
“As of April 19, 1929, the amount that had been paid by the Clarence Saunders Stores, Inc., for merchandise in those stores which it had purchased amounted to approximately $684,000. It appears from the minutes of a meeting of- the executive committee held on that day that the following took place:
“ ‘The chairman called attention to the fact that, in the purchasing of the several units of stores acquired by the company, that a price had been paid for such' merchandise in excess of its real market worth-; that in some eases such excess was much higher than in other cases; that, in addition thereto, considerable of the merchandise thus acquired was of such a miscellaneous assortment that many price reductions had to be and were made to sell such stock and that, because of this fact, the operations of the stores would be greatly handicapped and would not, over the first few months’ business, made [make?] as accurate a showing unless some adjustment was made of the purchase price paid for such merchandise.’
“After some general discussion, the following resolution was passed:
“ ‘Resolved, that such a flat deduction be made of 10 per cent, from all merchandise inventories as of date of purchase, and that said deduction be charged to franchise rights account, and that sueh entries as should be necessary to correct the books of the committee to reflect this action of the executive committee be made; said entries to be made as of March 31st.’
“In accordance with this resolution the asset account of franchise rights was increased by the sum of $68,416.62, and the profit and loss account on the profit side was likewise increased by the sum of $68,416.62. * * '* (The dividend declared July 15th was based on the foregoing action of the executive committee.)
“On October 22, 1929, the board of directors passed a resolution, favorably voted upon by the de fendant, authorizing the sale by the Clarence Saunders Stores, Inc., to Clarence Saunders Pacific Company [Clarence Saunders Pacific Stores, Inc.], of certain territorial franchise rights for the sum of $105,000. * * * The license rights sold were acquired by the Clarence Saunders Pacific Stores, Inc., as part consideration for the issuance of 100,000 shares of class ‘B ’ common stock. Moreover, at no time did the board of directors transfer any portion of the capital, represented by the proceeds of this sale, to the surplus amount [account?].” (Upon this situation the dividend of October 22d was based.)
Without these manipulations, (as above outlined) there were no net assets in excess of capital nor any net profits (as provided in section 34 of the Delaware general corporation law, as amended) from which the board of directors had power to declare and pay dividends on these two stated occasions.
We shall discuss the respective dividends separately.
1. The dividend of July 15th.
We believe the record fully sustains the finding of the trial judge that as to the dividend of July 15th,- there were no proper assets or profits of the corporation from which a declaration of dividends could then lawfully be made and that such declaration and subsequent payment thereof was from capital and was in violation of the provisions of the Delaware corporation statute.
This conclusion leaves but one question, namely, whether the defendant, as one of the board of directors, in voting for the declaration and payment of this particular dividend, relied in good faith, “upon the books of account of the corporation or statements prepared by any of its officials as to the vaffie and amount of the assets, liabilities and/or net profits of the corporation, or any other facts pertinent to the existence and amount of surplus or other funds from which dividends might properly be declared and paid.” If he did he is “fully protected” by the provision of the statute above quoted and is not liable in the instant suit for the violation by the board of directors of the provisions of the Delaware statute in declaring such dividend; if he did not, then such liability exists.
The defendant was not a member of the executive committee, nor was he present at its meeting of April 19th when its resolution, hereinbefore quoted, making a 10 per cent, flat deduction of all merchandise inventories was passed. Neither was he present at the next directors’ meeting (June 5th), nor do the minutes of such directors’ meeting disclose the making of such a report by the executive committee. There is no testimony that, prior to the commencement of this action, defendant ever had any knowledge of this stated action of the executive committee, whereby the books of the corporation had been shaded. ,
On April 27th, the corporation forwarded a communication to its stockholders signed by Clarence Saunders, its president (defendant receiving the same); which after reciting the progress made by the corporation, stated that “profits after depreciation, for the period ending March 31st, totaled $173,809.23.”
Prior to the meeting of the board of directors on July 15th, there had been prepared by the officials of the corporation, operating statements covering the operations of the corporation through April and May; also balance sheets as of April 27th and June 1st. These operating statements disclose a profit to the corporation in April of $8,239,18 and a loss in. May of $14,953.64. The balance sheet of April 27th disclosed profits after the February dividend in the amount of $149,548.41, while the balance sheet as of June 1st showed a profit after the dividends of February 1st and May 1st, of $102,694.77. This latter balance sheet was the latest statement of the financial condition of the corporation prepared and issued by the officials of the corporation prior to the July meeting. There is testimony that the balance sheet for the month of June had not been prepared due to a change of method in bookkeeping effected after June 1st, which made it impossible to properly assemble and prepare such a statement at that time, at least, defendant was so informed. However, the testimony indicates that Saunders, the president, reported that the affairs of the'corporation for the month of June were in a satisfactory condition. As a matter of fact, there had been a loss in this month of several thousand dollars, but the testimony shows that defendant had no knowledge thereof until some time after the July meeting.
Defendant, according to the testimony, relied upon the reports of the corporation, showing operations and balances as of April 27th and June 1st, as well as the verbal report of its president made at the meeting of July 15th, when voting the dividend of that date. This testimony is uncontradicted. True, he did not have before him the report for the month of June, but its absence had been explained, and in addition he had the oral statement of the president of the corporation indicating a satisfactory condition of the company for June. He had not been advised, nor was he aware of the shading of the books of the company prior thereto. The official balance sheet as of June 1st showed profits of $102,694.41. On its face, such a showing war ranted the declaration of dividends. Relying thereon and upon the report of the president, in good faith, the defendant is fully protected, by the terms of the above cited statute, from the liability which arose because of the declaration and payment of the dividend of July 15th. The trial court was therefore in error in finding against defendant for the amount thereof with interest.
2. The dividend of October 22d.
The Supreme Court of Delaware, in Sohland v. Baker, 15 Del. Ch. 431 (141 Atl. 277, 58 A. L. R. 693), said:
“Broadly speaking, the capital of a corporation is the fund used by it in the conduct of its business and from which its profits, in a good measure at least, are expected to be made. This fund is raised by the issue and sale of its authorized capital stock.”
To apply such definition in the instant case, would, to say the least, raise serious doubt as to whether the dividend of October 22d was declared from capital, but we find it unnecessary to make such determination, for assuming that it was, as plaintiffs claim, declared and paid from capital, we find that the defendant acted in good faith and without negligence in voting therefor.
The sum of $105,000 from which the dividend involved was declared and paid was received by the corporation from the sale of certain territorial franchise rights to the Clarence Saunders Pacific Stores, Inc., another corporation.
At the directors’ meeting* of October 22d, the matter of declaring a dividend from the money so acquired was discussed in great detail in the presence of counsel of the corporation — Mr. Miller and Mr. Owen of the law firm of Hornblower, Miller and Garrison of New Tork.
The witness Feltes, a director of the corporation, testified:
“Q. And what was the advice of your counsel as to the use of this money - for the payment of dividend?
“A. That it could be done.
“Q. Yes.
“A. Perfectly legal.”
The defendant testified:
“Q. Do you recall whether or not they were asked to advise the board as to anything concerning the sale of the right to acquire franchise rights that were under debate to be sold that day?
“A. Yes, they rendered an opinion.
“Q. And what was that?
“A. To the effect that we had a perfect right to sell the franchises, or rather the rights to the franchises, and that upon the sale of those franchise rights, the resulting moneys accruing to the corporation would be profit.”
The foregoing quoted testimony relative to advice of counsel is uncontradicted. We cannot ignore it. Not only does it negative any bad faith upon the part of defendant in voting for the dividend following the receipt of this advice, but it sanctions a finding by us that such vote was made in good faith and without negligence. International Paper Co. v. Gazette Co., 182 Mass. 578 (66 N. E. 636); Harvey-Watts Co. v. Worcester Umbrella Co., 193 Mass. 138 (78 N. E. 886).
So determining, we find no liability therefor upon defendant.
The judgment of the court below is reversed without a new trial, with costs of both courts to defendant.
North, C. J., and Fead, Wiest, Butzel, Bushnell and Sharpe, JJ., concurred. Potter, J., did not sit. | [
-7,
-14,
53,
-21,
73,
25,
-2,
-13,
10,
-19,
-16,
-17,
48,
37,
24,
-29,
12,
29,
-33,
6,
24,
-26,
2,
0,
30,
-55,
37,
21,
34,
-14,
11,
-77,
-18,
-40,
-20,
68,
-43,
-45,
6,
30,
16,
14,
60,
16,
-12,
-38,
47,
-41,
46,
-13,
33,
25,
41,
-64,
10,
4,
32,
10,
3,
-11,
-9,
-17,
29,
-21,
-19,
20,
-22,
32,
-23,
17,
-14,
-13,
12,
50,
17,
-60,
-35,
34,
-6,
-24,
-10,
-13,
0,
30,
-67,
39,
0,
17,
-29,
10,
-6,
21,
-41,
-25,
-12,
30,
-30,
2,
14,
38,
-7,
-31,
-8,
52,
31,
63,
42,
-57,
-20,
-21,
21,
-15,
35,
-8,
-3,
16,
-36,
-27,
-41,
-39,
27,
8,
8,
14,
41,
80,
32,
-1,
-40,
32,
35,
7,
-101,
-5,
28,
1,
-64,
-39,
-13,
-16,
30,
41,
-14,
28,
-48,
36,
-1,
18,
3,
15,
-50,
58,
30,
24,
-10,
28,
-11,
-17,
42,
-86,
58,
-67,
-12,
36,
-8,
7,
-11,
38,
-48,
33,
39,
13,
-20,
-50,
-62,
51,
34,
-114,
-5,
-14,
-41,
18,
15,
39,
-31,
-20,
23,
21,
-22,
1,
37,
-14,
-19,
24,
-26,
4,
19,
40,
40,
-18,
-17,
-101,
22,
-37,
9,
-9,
21,
-8,
-17,
-51,
-31,
28,
22,
0,
-33,
8,
-27,
-2,
93,
-5,
7,
12,
-37,
88,
-30,
-34,
-13,
-33,
-8,
2,
-11,
-7,
7,
17,
-26,
-11,
-22,
-28,
10,
57,
-37,
-4,
-66,
-9,
-9,
-15,
11,
-29,
-54,
64,
-33,
5,
-42,
9,
-52,
-56,
-41,
-8,
-19,
-8,
-17,
53,
-68,
60,
-6,
-53,
-12,
36,
-33,
32,
-11,
-11,
-2,
12,
-15,
-54,
-37,
57,
-13,
-21,
-19,
-31,
21,
-10,
-39,
33,
-57,
27,
-1,
-11,
37,
57,
89,
-29,
89,
3,
-6,
-15,
37,
41,
-33,
30,
19,
-1,
7,
23,
-28,
-26,
-33,
-40,
-12,
-26,
75,
-55,
76,
-6,
-3,
31,
28,
-62,
38,
35,
-7,
77,
-23,
-32,
63,
-37,
14,
12,
-19,
18,
22,
10,
5,
37,
45,
-32,
-13,
29,
13,
34,
74,
-19,
17,
-4,
-14,
-14,
-28,
-7,
-46,
-37,
15,
-19,
23,
-27,
2,
15,
-54,
72,
56,
12,
41,
-19,
-20,
-12,
-4,
-17,
-3,
34,
-18,
7,
-35,
19,
31,
2,
-42,
-46,
-55,
59,
-16,
-22,
21,
-22,
29,
1,
-32,
-17,
-56,
-46,
-34,
-9,
12,
32,
-36,
-5,
-27,
-10,
22,
42,
-22,
44,
-10,
-19,
2,
-28,
44,
-13,
-24,
-8,
18,
34,
1,
-16,
-45,
-12,
41,
0,
2,
17,
82,
-10,
9,
-36,
34,
-99,
-34,
14,
-51,
-32,
-38,
-3,
-33,
-27,
28,
15,
-48,
18,
29,
-6,
9,
3,
-1,
63,
79,
18,
-22,
12,
80,
0,
-11,
0,
38,
7,
-42,
-40,
29,
31,
18,
0,
17,
-17,
52,
21,
44,
-13,
37,
-14,
48,
7,
-28,
10,
-33,
6,
-12,
-5,
-25,
-5,
-5,
13,
-2,
45,
-49,
-20,
-19,
24,
9,
-51,
23,
-13,
14,
-6,
18,
49,
44,
17,
-53,
3,
-16,
6,
-22,
-53,
30,
-38,
21,
35,
18,
-56,
6,
26,
-76,
-12,
0,
35,
-15,
-14,
-16,
-4,
0,
105,
6,
8,
-39,
67,
-69,
10,
29,
44,
53,
-8,
5,
-6,
33,
19,
-23,
18,
17,
-40,
-38,
-31,
-29,
11,
-23,
26,
26,
-11,
23,
26,
-28,
-27,
15,
12,
46,
10,
39,
-3,
40,
1,
33,
-13,
-50,
54,
10,
-20,
61,
-37,
-5,
21,
10,
3,
-1,
-27,
-9,
77,
-32,
21,
2,
38,
-24,
-77,
66,
-17,
56,
-17,
-47,
44,
43,
-18,
24,
-19,
6,
-2,
8,
-6,
28,
-80,
47,
-13,
-36,
35,
-52,
22,
-28,
-72,
-67,
-75,
15,
26,
-17,
-45,
29,
-20,
-8,
17,
75,
-3,
14,
-22,
-1,
20,
14,
-34,
-47,
-8,
61,
72,
1,
6,
1,
24,
26,
-34,
-55,
23,
-27,
30,
-57,
11,
-27,
-15,
1,
17,
32,
1,
-1,
-63,
27,
-23,
44,
15,
-36,
20,
3,
38,
-33,
1,
14,
-57,
21,
-45,
7,
-31,
-28,
-60,
12,
-5,
9,
23,
16,
19,
0,
-33,
2,
15,
51,
20,
-25,
34,
-34,
-10,
-39,
-10,
-13,
-1,
15,
29,
22,
12,
12,
6,
-4,
-24,
-38,
5,
11,
58,
33,
14,
53,
18,
-55,
2,
-30,
51,
-14,
-32,
-42,
34,
-10,
12,
19,
-25,
-27,
-33,
-30,
-4,
4,
-24,
-21,
2,
-64,
-52,
21,
13,
-3,
17,
67,
-45,
17,
11,
0,
-9,
-50,
55,
-5,
30,
-20,
-2,
4,
-23,
8,
-17,
-27,
-24,
-65,
16,
-33,
39,
38,
29,
-24,
29,
1,
-18,
27,
-20,
-15,
-44,
-17,
-17,
-67,
-2,
42,
20,
-39,
59,
-33,
-17,
9,
-71,
-64,
20,
-8,
-7,
-5,
5,
26,
19,
0,
20,
90,
-14,
24,
25,
-5,
-34,
13,
-15,
53,
31,
-23,
-15,
8,
-18,
8,
52,
31,
27,
29,
-65,
17,
-16,
-23,
77,
64,
-6,
13,
-52,
0,
1,
-19,
-29,
28,
12,
1,
29,
-43,
-18,
-74,
0,
-23,
15,
-2,
10,
9,
-5,
-13,
-19,
-1,
-3,
11,
-28,
0,
12,
-17,
-44,
43,
5,
0,
-48,
-62,
14,
-41,
19,
1,
-8,
-19,
-35,
-44,
-16,
40,
-11,
-32,
-13,
-34,
-7,
17,
-14,
-37,
8,
-31,
7,
-36,
66,
28,
0,
-33,
-1,
-2,
-50,
-33,
78,
-20,
43,
-58,
11,
19,
-31,
-42,
7,
-6,
-5,
-4,
-3,
12,
28,
21,
-6,
-43,
58,
-27,
-86,
-1,
6,
5,
-56,
-23,
-6,
15,
-4,
1,
8,
-30,
-55,
-7,
75,
42,
21,
-30,
49,
-29,
21,
13,
34,
-29,
31,
56,
17,
-1,
4,
-7,
-4,
-23,
14,
-28,
-3,
29,
-18,
5,
12,
-30,
0,
-32,
13,
-9,
7,
-14,
-51,
48,
-9,
40,
2,
-27,
10,
-14,
-23,
-5,
21,
-45,
-30,
-38,
-9,
25,
12,
-5,
-16,
10,
-3,
-38,
-26,
-48,
34,
22,
33,
44,
-34,
70,
-38,
-30,
-16,
-10,
-43,
4,
-2,
0,
-12,
-15,
-52,
25,
37,
29,
-30,
-28,
31,
-14,
-50,
15,
32,
25,
30,
11,
4,
52,
3,
-32,
-48,
8,
33,
10,
-64,
13,
-13,
3,
-13,
-30,
14,
28,
42,
23,
42,
-40,
44,
12,
62,
15,
2,
14,
32,
-22,
-40,
-13,
39,
3,
25
] |
Sharpe, J.
The issues involved in this cause pertain to a triangular strip of land with an area of 4.166 acres, the point of which borders on Bear lake in Muskegon county. This case was before this court once before and is reported in 271 Mich. 474 to which reference is made for facts unnecessary to be stated herein. The scope of the inquiry in the present cause is indicated by the following quotation from page 483 of the opinion above referred to.
“The record does not show whether Damm has made valuable improvements on the triangular strip between the lines FE' and EE' which cannot be removed. If so, it may be necessary to award plaintiff the value of this property rather than the land itself. Nor can it be determined whether the Damms realized moneys from oil rights on this particular strip. These questions, and others which may present themselves, must be determined by the trial judge, to whom the case is referred for further hearing, and for entry of such decree as may then be determined, in accordance with this opinion.”
This cause came on for trial in December, 1935, and following the taking of testimony the court found that defendants had made valuable improvements on the triangular strip which could not be removed and held that the entire strip rather than a portion thereof should be retained by defendants and awarded plaintiff the sum of $624 as the value of this land; that defendants should pay plaintiff the sum of $1,248 as the lease value of the land for oil together with interest on the same in the sum of $452.40 from September 26, 1928, and the further sum of $2,305.50 for damages occasioned plaintiff by reason of defendants’ conversion' of oil from plaintiff’s land; and that plaintiff was to execute and deliver to defendants a good and sufficient conveyance of the triangular parcel above referred to together with any appurtenances thereto or improvements thereon.
The defendants appeal and contend that the court was in error in awarding to defendants the entire triangle; that the most that should have been awarded was a small triangle located at the south end of the large triangle marked FEE' containing .06 of an acre and at a price of $300 per acre the value of this small triangle of land would be not to exceed $4.33 or at a price of $624 per acre, the highest value placed on this triangle, the proportionate value would be $9; that if defendants be decreed to be the owner of the entire parcel, then its lease value be reduced from $300 per acre to $200 per acre; that no trespass upon plaintiff’s land was committed as there was no drilling done within the tri-. angle FEE'; that because of the nature of oil and gas there is no way in which a determination can be made as to the extent of plaintiff’s loss; and that damages awarded would be speculative.
•It is undisputed that the line FE' which marks the eastern boundary of defendants’ land passes through a permanent, substantial and valuable building which could not be easily moved and constitutes valuable improvements on the triangular strip between the lines FE' and EE'; this strip containing 4.166 acres was awarded to defendants. The greatest value of this land comes from the fact that it extends south as far as Bear lake. The northern portion has been damaged by reason of defendants ’ gas and oil operations thereon.
The trial court found that the reasonable value of this strip of land was the sum of $624, this amount was arrived at by placing a valuation of $150 per acre upon the land. There was evidence from which the trial court could make this determination. That part of the decree determining the number of acres and its value as found by the trial court is affirmed.
The next question presented for review pertains to the lease value of the land for oil purposes. The trial court determined this amount to be $1,248 as of September 26, 1928. ■ Defendants contend that because plaintiff and her husband were given $200 per acre by the Dixie Oil Company for the adjoining acreage, plaintiff should be limited to that amount as a measure of damages. We are not in accord with this view. There was testimony presented that similarly situated leases in 1928 were selling for a much, higher price per acre. The fact that Mr. and Mrs. Ross leased one parcel of land for $200 per acre is no reason why plaintiff should be compelled to lease another parcel for the same amount and especially in view of the fact that she in all probability could have leased this particular parcel of land for a greater amount had it not been for the acts of defendants in preventing her from so doing.
Plaintiff claims damages incident to conversion of oil by reason of the fact that defendants claimed ownership of the triangular parcel of land and located their wells so close to the boundary of the triangle that they drained substantially all of the oil therefrom; and that because of the location of defendants’ wells, plaintiff was deprived of the opportunity of drilling offset wells in the triangle.
S, T, U — Defendants’ Oil Wells.
Y, W,X — Plaintiff’s Oil Wells.
This diagram is not drawn to scale.
By referring to the above drawing we find that defendants drilled the well S 60 feet west of the line FE', plaintiff’s westerly boundary line; the well T is 71.08 feet west of the line FE'; and the Well U is 104.64 feet west of the line FE'. If plaintiff had possession of the triangular parcel of land in 1929, a permit would have been issued for the drilling of a well in the triangle 120 feet to the east of defendants ’ well S as an offset well and the same procedure would have been followed as to the other wells drilled by defendants. That the plaintiff is entitled to the oil and gas unlawfully extracted from her premises is not seriously disputed. In Attorney General v. Railway Co., 263 Mich. 431 (94 A. L. R. 520), we said:
“The defendant acquired the right of way in question by purchase. It owns a fee absolute. The oil, gas, and minerals in the soil are a part of the real estate. It owns them. An incident of ownership is the right to sell or lease or use the property in any lawful way.”
In 1 Thornton, Law of Oil and Gras (4th Ed.), § 115, the author states :
“If the lessee’s premises be invaded, and oil or gas extracted from them by sinking wells or in any other manner, he may recover damages from the wrongdoer. ’ ’
And in Mills & Willingham, Law of Oil and Gras, pp. 31, 32, the authors in commenting on conversion of oil, state:
“The gist of the action is not an invasion of the land itself, and the consequent damage to the mineral estate, but an unlawful appropriation of the oil and gas when brought to the surface; that is, an invasion of the owner’s right in the oil and gas as personal property. The right to recover and the measure of damage is the same, whether the right arises out of the ownership of the land, or of the mineral estate under a grant or reservation, or of the right to produce under a prior leased’
The record in this cause shows that the production from the whole parcel was uniform; that the total production from the three wells located on defendants’ property was the sum of $133,128.29 and that this oil was taken from 30.07 acres which included the" 4.166 acres of land above referred to, while the total production of oil from plaintiff’s three wells was $128,043.52 which included 33.1 acres, but not the 4.166 acres. The gross value of the production per acre of the defendants’ 30.07 acres was $4,427.28, multiplying this amount by 4.166, the number of acres in the triangular piece, gives $18,444.04 as the .gross production. One-eighth of that amount is $2,305.50, the amount which plaintiff is entitled to for the one-eighth royalty.
In Mills & Willingham, Law of Oil and Gas, pp. 170, 171, it is said:
“The courts have been very vague and indefinite upon the question of the measure of damages for a breach of the implied covenants, usually accepting the findings of the trial court without a critical examination into the evidence upon which the conclusion was based. In the case of damages for drainage, the general rule seems to be that the lessee is liable for the proportion due the lessor of the oil and gas that shall have been drained from his land by the offset wells.
“In affirming a judgment for damages for failure to develop, the Supreme Court of Illinois used this language (Daughetee v. Ohio Oil Co., 263 Ill. 518, [105 N. E. 308]):
“ ‘Upon the question as to the measure of damages, the court, in substance, instructed the jury that in arriving at their verdict, they should subtract from the quantity of oil, which they found should have been produced, * * * the quantity actually produced and saved, and allow to the plaintiff one-eighth of the value of the difference, at the market prices during the period in question. This instruction correctly stated the rule as to the measure of damages.’
“The supreme court of Oklahoma has adopted the rule thus laid down by the Illinois court as the measure of damages for drainage. (Junction Oil & Gas Co. v. Pratt, 99 Okla. 14 [225 Pac. 717].)
“On account of the uncertain and speculative nature of the damages, great difficulty has been experienced in proving a reasonably accurate basis for computing them. The courts have recognized this difficulty and have met it by requiring only that the proof should be made by the introduction of the best evidence of which the subject is capable. It has, therefore, been held that the proper way to prove the damage is by the testimony of expert witnesses, who are familiar with the field, and who base their conclusions upon all of the known factors affecting the probable loss of production. ’ ’
In making the above computation of the amount due plaintiff for the conversion of oil from the 4.166 acres, we find that under normal conditions oil nearest to the drilled well will first flow into and be pumped out; that defendants ’ well S is 180 feet from the line EE', while plaintiff’s well V, opposite in an easterly direction from defendants’ well S, is 250 feet east of the line EE'; that defendants’ well T is 162 feet from the line EE', while plaintiff’s well W is 258.feet from the line EE'; that defendants’ well U is 166 feet from the line EE', while plaintiff’s well X is 300 feet from the line EE'. From these facts we conclude that defendants by drilling their wells too close to the line FE' deprived plaintiff of the opportunity of claiming and taking the oil that was rightfully hers; and defendants must respond in damages for such conversion.
The decree of the lower court is affirmed. Plaintiff will recover costs.
North, C. J., and Fead, Wiest, Butzel, Bushnell and Toy, JJ., concurred. Potter, J., did not sit.
In Mills & Willingham the following quotation is credited to Daughetee v. Ohio Oil Co., 263 Ill. 518. The quotation does not appear in the opinion of the supreme court of Illinois but in the opinion of an appellate court on review of an earlier trial of the ease and reported in 151 Ill. App. 102, 109. — Reporter. | [
-17,
71,
38,
-39,
-63,
20,
17,
8,
-39,
22,
42,
-59,
5,
51,
56,
8,
22,
0,
29,
5,
1,
-46,
11,
29,
1,
-21,
-35,
-25,
-14,
0,
-32,
14,
-30,
49,
28,
-12,
-24,
8,
-10,
21,
-16,
-7,
25,
-4,
36,
-9,
-7,
-16,
14,
-17,
20,
14,
53,
-54,
-60,
2,
23,
19,
10,
32,
-47,
3,
-10,
57,
56,
21,
-17,
-31,
46,
21,
-48,
-27,
18,
-29,
55,
18,
16,
10,
-6,
24,
9,
24,
14,
52,
-15,
45,
15,
3,
6,
-11,
-56,
0,
-45,
48,
28,
20,
16,
-12,
-22,
16,
10,
41,
-22,
-13,
3,
-12,
-51,
-15,
3,
-6,
7,
6,
35,
13,
16,
-78,
-9,
-3,
37,
-8,
-1,
-12,
-16,
7,
4,
34,
-26,
-6,
-26,
-11,
-16,
-61,
4,
29,
22,
-22,
9,
-56,
3,
14,
2,
37,
-5,
13,
33,
0,
0,
-37,
8,
4,
-36,
38,
41,
17,
42,
-20,
29,
-20,
17,
-66,
34,
-7,
3,
36,
-57,
-18,
69,
15,
-25,
22,
55,
-15,
-65,
12,
35,
-7,
-19,
37,
-48,
4,
1,
3,
41,
2,
-29,
4,
0,
-2,
-70,
25,
15,
-51,
21,
-42,
-47,
0,
-2,
10,
-11,
6,
38,
-70,
0,
-7,
-2,
0,
-24,
11,
18,
36,
-2,
38,
7,
-31,
-48,
50,
-2,
-2,
53,
-13,
39,
9,
-16,
15,
-26,
-5,
0,
23,
0,
-17,
-31,
-5,
-14,
9,
-24,
10,
-5,
15,
20,
-20,
-8,
-46,
-31,
9,
18,
58,
63,
-55,
-19,
60,
1,
13,
-60,
6,
-34,
-9,
5,
-42,
-35,
-24,
-26,
15,
-13,
38,
-36,
16,
-56,
-32,
-6,
32,
-15,
5,
10,
27,
-57,
-59,
28,
-38,
15,
21,
36,
-15,
-60,
20,
0,
30,
-21,
-3,
23,
49,
-45,
18,
-8,
-39,
26,
5,
12,
-67,
42,
-32,
-38,
2,
13,
-12,
31,
16,
-22,
15,
-17,
-1,
12,
38,
-30,
49,
-1,
-14,
36,
7,
20,
-10,
33,
71,
-15,
40,
-31,
74,
67,
-35,
-7,
16,
-30,
13,
-5,
50,
-6,
6,
18,
21,
-5,
3,
29,
31,
17,
-23,
32,
-6,
-14,
15,
3,
-15,
-14,
42,
4,
49,
-73,
-40,
13,
6,
-33,
53,
3,
-57,
32,
4,
16,
-11,
-2,
-26,
-25,
19,
-9,
17,
13,
17,
33,
4,
30,
-1,
-43,
20,
-6,
-3,
71,
10,
39,
-11,
6,
-24,
-8,
15,
-24,
-7,
-11,
37,
-12,
-10,
1,
-4,
15,
-75,
27,
14,
28,
54,
-32,
-48,
34,
-28,
7,
-13,
42,
-47,
-26,
11,
-33,
11,
10,
31,
-16,
-11,
37,
36,
-14,
-73,
49,
-19,
4,
-16,
8,
-36,
-43,
68,
24,
-48,
11,
40,
-67,
22,
-53,
-13,
-45,
17,
58,
6,
-53,
-41,
-16,
11,
-1,
-7,
-5,
53,
-4,
9,
-47,
-34,
63,
-20,
53,
-1,
-35,
-2,
-38,
-39,
-45,
-40,
-41,
10,
61,
19,
-37,
108,
-5,
-83,
38,
8,
46,
-8,
-9,
-5,
7,
-32,
-20,
1,
19,
1,
-16,
84,
13,
27,
0,
-51,
23,
-41,
-3,
5,
3,
28,
42,
-12,
-4,
2,
40,
-37,
0,
11,
-9,
-17,
10,
15,
8,
-13,
-8,
-46,
-18,
45,
12,
-17,
25,
1,
-2,
-6,
44,
-13,
38,
-13,
-3,
-35,
47,
-27,
-13,
-2,
-21,
13,
-21,
-23,
-4,
3,
-32,
-7,
-44,
-42,
5,
-1,
-16,
-33,
1,
-53,
12,
-9,
-3,
-24,
6,
-19,
4,
-3,
-16,
-23,
1,
-1,
-47,
23,
-21,
6,
72,
4,
-1,
-33,
15,
-18,
-1,
19,
78,
-4,
9,
14,
-23,
-38,
-35,
60,
-31,
-13,
-5,
-5,
-47,
0,
23,
4,
0,
14,
5,
-18,
28,
28,
1,
16,
26,
24,
4,
-67,
-13,
28,
-32,
-35,
-8,
-7,
-42,
-1,
23,
-21,
-18,
14,
14,
-20,
41,
34,
26,
-29,
19,
-50,
12,
3,
16,
-17,
-11,
12,
-5,
-4,
-32,
-6,
-63,
-9,
11,
15,
55,
-42,
-2,
5,
-31,
4,
-25,
-34,
-16,
-19,
3,
23,
-37,
7,
-7,
-27,
-30,
27,
12,
-72,
-7,
35,
-3,
-24,
24,
8,
54,
0,
-25,
6,
-68,
-37,
6,
15,
31,
-31,
10,
0,
-4,
-19,
-27,
-13,
8,
71,
30,
49,
22,
-8,
-6,
-30,
37,
3,
-15,
40,
54,
23,
31,
26,
-5,
3,
-10,
-32,
13,
15,
-16,
-52,
49,
1,
25,
-24,
-17,
31,
-1,
-24,
18,
35,
26,
36,
-28,
1,
1,
32,
4,
-7,
-8,
3,
4,
-16,
-11,
-35,
-16,
39,
13,
1,
-41,
-11,
11,
52,
-8,
-26,
-16,
3,
-7,
-13,
-52,
-16,
31,
-17,
-38,
-15,
-27,
-18,
68,
2,
-26,
10,
-46,
10,
40,
35,
-3,
-27,
14,
47,
-24,
-37,
29,
-21,
-17,
-9,
0,
-44,
18,
-87,
-15,
36,
31,
-1,
-55,
-3,
12,
-47,
-42,
-7,
35,
-25,
0,
-44,
-35,
-52,
-12,
-55,
-26,
-27,
9,
31,
1,
-39,
11,
-38,
14,
-9,
39,
-22,
-25,
-23,
0,
19,
8,
8,
21,
27,
-20,
-26,
15,
-4,
30,
-8,
11,
-9,
2,
-21,
-7,
52,
-18,
-18,
5,
6,
-36,
33,
20,
35,
44,
-1,
-56,
16,
62,
-42,
-2,
44,
12,
-13,
8,
11,
-19,
-17,
10,
-82,
-19,
-7,
1,
-5,
-42,
-10,
-24,
-19,
-40,
35,
-14,
22,
17,
-35,
-10,
-9,
-21,
36,
26,
-17,
-12,
55,
-27,
37,
13,
1,
-26,
4,
18,
5,
-15,
7,
-36,
19,
-45,
-16,
37,
3,
-39,
-26,
29,
7,
-53,
-27,
37,
-16,
35,
35,
32,
-16,
-31,
-36,
-8,
7,
-2,
-24,
-3,
-28,
2,
2,
27,
30,
-10,
-5,
-28,
21,
-4,
-2,
-38,
-51,
-13,
-7,
-35,
-23,
-8,
-4,
21,
27,
15,
25,
2,
67,
-38,
0,
-29,
19,
15,
51,
-40,
29,
-28,
-45,
22,
7,
-2,
-50,
8,
-1,
14,
19,
5,
18,
-10,
-33,
21,
-21,
-36,
46,
33,
-38,
-34,
72,
-4,
-20,
-44,
-26,
20,
-33,
-6,
36,
3,
34,
0,
-15,
-20,
61,
-39,
24,
-9,
-32,
35,
-16,
48,
-21,
18,
-11,
38,
10,
-8,
-32,
23,
15,
49,
-23,
6,
-18,
-44,
61,
-2,
32,
40,
7,
-29,
3,
-2,
0,
-35,
-51,
26,
46,
-15,
40,
20,
8,
3,
-5,
23,
17,
-22,
-9,
-11,
26,
-51,
29,
13,
17,
-61,
-12,
67,
-5,
-42,
42
] |
Toy, J.
Plaintiff, an architect, brought this action at law to recover for services, claimed to have been rendered by him for defendants in the preparation of sketches, plans and proposals, and the examination, measurement and selection of sites, for the possible “future business and manufacturing location” of defendant brewing company. His declaration alleges that such services were performed at the request of defendants Kaufman and Hoffman, and that each, for himself, promised to pay therefor.
Plaintiff’s declaration, with rule to plead was filed on April 16, 1935. On June 4th, thereafter, defendants filed their motion to dismiss the declaration for the following reasons :
“1st. Because it affirmatively appears that there has been an improper joinder of parties.
“2d. Because it affirmatively appears that there had been an improper joinder óf causes of action.”
On June 10th, the defendants filed their answer reserving their motion to dismiss, admitting that plaintiff was requested by defendants Kaufman and Hoffman to examine and prepare the stated plans, etc., but denying any personal liability upon tbe part of Kaufman and Hoffman therefor.
The answer further admitted that the defendant corporation was liable to plaintiff for the reasonable value of his services.
Thereafter and on June 12,1935, a stipulation was filed, which under date of June 11th had been entered into between the plaintiff and all defendants by their respective attorneys, as follows:
“1. The amount claimed by plaintiff may be paid in full in the manner following:
“One hundred dollars at date hereof, receipt of which is hereby acknowledged; $100 on July 1,1935; $100 on August 1, 1935; $100 on September 1, 1935 ; and the sum of $1,350 on or before October 1, 1935.
“2. In event the defendants shall fail to make the payments as specified in the preceding paragraph or any of them within the time limited for such payment or payments, judgment may be entered for the plaintiff, after not less than 4 days’ notice to defendants’ attorneys, in the sum of $2,000, plus interest at the rate of 5 per cent, from the time of the rendition of plaintiff’s services to the date of judgment in accordance with the bill of particulars attached to plaintiff’s declaration, less, however, any payments on account made subsequent to the date of this stipulation.
“3. It is understood and agreed that nothing in this stipulation contained shall operate to prevent defendants from presenting their defenses and contentions as to misjoinder of parties, which question is expressly reserved.”
On June 24, 1936, plaintiff filed his motion for judgment “in accordance with the attached (above quoted) stipulation and for a summary judgment” against the defendants Kaufman and Hoffman. (The defendant corporation had, since the time of commencement of suit, accomplished voluntary reorganization under section 77-B of the Federal Bankruptcy Act [11 USO A, § 207].)
The motion was supported by affidavit showing the amounts paid following the filing of the stipulation, and the balance due thereunder.
Defendant Hoffman filed his affidavit for himself and defendant Kaufman, alleging that plaintiff was hired by them for and on behalf of the corporation; that his services were performed for the corporation; that they are entitled to the benefit of the statute of frauds, in that they cannot be compelled to answer for the debt of another (the corporation).
On hearing, the circuit court entered judgment for plaintiff.
Defendants Kaufman and Hoffman appeal therefrom. They claim as reasons and grounds for appeal that the circuit court was in error in holding as a matter of law that the stipulation on file (herein-before quoted) precluded the defenses offered by appellants’ affidavit of merits, and in refusing to consider such affidavit of merits, and in not finding as a matter of law that the appellants “were acting as the officers of the corporation and therefore not personally liable.”
We think their contentions to be without merit.
The appellants, .after filing a motion to dismiss and an answer, saw fit to enter into a stipulation confessing liability and permitting judgment to be entered, if default occurred in making payment in accordance with the terms of such stipulation. They reserved to themselves the right to present “their defenses and contentions as to misjoinder of par ties.” By the very terms of the stipulation, only this one question was ‘ ‘ expressly reserved. ’ ’ But in their showing in opposition to the motion for judgment on the stipulation they raised no defense of “misjoinder of parties.” They had precluded themselves, by their stipulation, from raising any other defense.
The judgment is affirmed, with costs to plaintiff.
North, C. J., and Fead, Wiest, Butzel, Bushnell and Sharpe, JJ., concurred. Potter, J., did not sit.
See 3 Comp. Laws 1929, § 13417.—Reporter. | [
-17,
-5,
0,
0,
42,
-34,
12,
3,
10,
22,
7,
-1,
39,
4,
27,
17,
14,
-12,
22,
-14,
29,
-56,
5,
5,
24,
47,
4,
-11,
27,
-27,
7,
-22,
-37,
-9,
-37,
4,
31,
-30,
39,
20,
53,
8,
20,
-30,
11,
-2,
-4,
-68,
20,
-22,
42,
16,
1,
-6,
-40,
-68,
7,
15,
-15,
-1,
-12,
-16,
-8,
-8,
-29,
-7,
23,
40,
16,
20,
-49,
13,
-11,
-35,
-7,
-55,
-16,
-11,
8,
-19,
-12,
-25,
39,
-35,
-11,
5,
42,
-2,
31,
15,
-19,
13,
-4,
19,
-32,
28,
-21,
49,
12,
15,
37,
-33,
-34,
14,
9,
26,
-19,
-67,
-1,
-2,
28,
-8,
32,
-18,
-32,
-32,
-15,
2,
-4,
-53,
7,
7,
28,
24,
-43,
26,
6,
15,
-11,
24,
22,
1,
-30,
8,
7,
14,
2,
-9,
-8,
21,
10,
24,
-35,
44,
2,
7,
-32,
51,
-47,
-13,
-39,
-15,
25,
43,
14,
54,
-12,
-49,
24,
-60,
39,
-17,
2,
-12,
9,
-13,
0,
29,
-1,
1,
21,
17,
1,
-21,
-10,
-3,
41,
-19,
-21,
-22,
-20,
-7,
34,
43,
56,
-47,
-21,
16,
18,
26,
30,
-39,
-38,
25,
-10,
32,
-16,
36,
43,
-2,
-20,
-60,
7,
-75,
15,
11,
22,
-23,
-9,
5,
-48,
4,
17,
-49,
-34,
-13,
23,
-2,
20,
0,
-14,
-6,
-63,
21,
-88,
-6,
29,
-10,
39,
-1,
-39,
41,
-43,
55,
-36,
-40,
50,
33,
3,
6,
-48,
-11,
-44,
-46,
-15,
-4,
-32,
6,
-21,
-15,
-38,
14,
-33,
27,
-34,
-52,
-53,
32,
-17,
-15,
1,
25,
-13,
-3,
-35,
-7,
-5,
-24,
0,
70,
-8,
-15,
4,
56,
19,
-46,
-71,
45,
-7,
17,
-26,
-9,
3,
-1,
6,
28,
27,
12,
-11,
12,
19,
12,
23,
-23,
81,
39,
-61,
28,
25,
41,
-18,
-39,
27,
-31,
3,
0,
-18,
8,
5,
-9,
-1,
-37,
10,
-34,
46,
1,
20,
5,
25,
-48,
29,
27,
-21,
56,
10,
-73,
20,
3,
-3,
-5,
13,
21,
-3,
-3,
-27,
10,
27,
-38,
-16,
25,
20,
21,
19,
-8,
7,
45,
22,
0,
-16,
-48,
-28,
-11,
-20,
-25,
34,
25,
-44,
-25,
-17,
48,
29,
-12,
3,
-34,
1,
-15,
1,
-15,
-5,
48,
-40,
29,
-68,
-17,
-13,
-26,
-20,
25,
-90,
69,
-22,
2,
22,
41,
52,
22,
14,
-33,
-35,
4,
-26,
-34,
27,
9,
15,
-54,
-7,
-9,
42,
-41,
-8,
-13,
35,
-18,
-28,
-5,
-8,
18,
-56,
39,
9,
4,
17,
1,
-21,
3,
37,
-2,
10,
24,
43,
-9,
14,
9,
14,
-68,
23,
-12,
-19,
-26,
-65,
15,
-7,
-37,
10,
0,
-40,
-7,
-11,
30,
-20,
20,
-26,
-3,
17,
1,
-41,
21,
10,
33,
-25,
20,
-3,
24,
-11,
-55,
21,
-8,
47,
8,
2,
9,
34,
-61,
15,
0,
21,
42,
-28,
27,
-17,
-15,
66,
-7,
-37,
31,
27,
-1,
-10,
0,
31,
28,
18,
-48,
-29,
11,
-6,
-9,
-28,
-8,
37,
-43,
10,
12,
-38,
0,
-62,
23,
-42,
28,
-23,
10,
3,
-17,
33,
0,
12,
-29,
28,
32,
-65,
-12,
21,
-24,
22,
-4,
46,
52,
-34,
69,
-2,
36,
-34,
10,
-20,
7,
5,
35,
26,
-11,
49,
-90,
-2,
17,
-49,
-15,
2,
-30,
-6,
-24,
-16,
30,
5,
16,
7,
51,
-33,
28,
-8,
18,
4,
-10,
-16,
37,
-32,
0,
-12,
-10,
-10,
-14,
9,
33,
22,
-20,
31,
-11,
-20,
2,
13,
-8,
-7,
37,
-11,
3,
-40,
20,
-45,
-60,
-1,
-13,
-2,
-15,
-14,
-37,
-67,
33,
-1,
7,
8,
-12,
-24,
-7,
-12,
-27,
26,
-16,
13,
4,
0,
47,
-8,
-7,
-76,
-36,
-23,
-68,
-22,
27,
31,
-34,
50,
4,
-28,
-1,
-10,
-21,
18,
-37,
25,
56,
-18,
-9,
-30,
15,
22,
25,
-7,
6,
-26,
3,
10,
-32,
-34,
17,
22,
6,
9,
40,
11,
-3,
-7,
35,
-44,
-12,
-34,
-33,
20,
33,
27,
13,
9,
25,
74,
-1,
4,
-32,
-40,
-38,
-35,
-19,
-10,
-36,
5,
-26,
-8,
19,
42,
15,
17,
-8,
10,
-24,
6,
71,
10,
-9,
-32,
24,
-40,
30,
3,
-50,
28,
-13,
17,
0,
62,
-39,
16,
-25,
-25,
2,
12,
-36,
1,
58,
13,
-16,
23,
-38,
-29,
-61,
13,
29,
-35,
-2,
-24,
10,
-7,
12,
38,
4,
14,
-17,
-1,
16,
-48,
9,
-15,
-5,
28,
-22,
9,
22,
-5,
24,
38,
4,
-9,
-27,
-18,
28,
-14,
18,
-3,
44,
-24,
-52,
-32,
-12,
36,
-3,
0,
4,
-32,
0,
-21,
21,
-5,
5,
-36,
19,
9,
40,
48,
29,
-21,
-45,
-24,
35,
-38,
-8,
-9,
42,
-11,
81,
2,
-5,
20,
-52,
-62,
-11,
6,
-58,
-29,
1,
10,
0,
45,
16,
53,
-5,
-26,
28,
-23,
-14,
21,
16,
27,
69,
-46,
-28,
22,
-6,
-10,
30,
12,
54,
19,
-11,
-22,
15,
17,
93,
-18,
-22,
-42,
34,
46,
-56,
-28,
-34,
27,
-29,
-25,
22,
-16,
-27,
-31,
-39,
-51,
45,
-20,
43,
52,
-21,
-5,
19,
-16,
-25,
31,
-63,
18,
31,
-11,
18,
46,
51,
0,
-16,
-22,
-41,
-56,
41,
3,
-13,
-39,
30,
-22,
-8,
25,
8,
0,
-46,
-14,
1,
-33,
-13,
-4,
9,
26,
18,
-8,
24,
20,
-29,
-57,
-4,
34,
-48,
32,
-13,
8,
13,
11,
24,
-26,
-14,
57,
-33,
-19,
41,
20,
-34,
-32,
-25,
25,
-4,
-1,
39,
25,
-7,
6,
11,
21,
-15,
-52,
-11,
-10,
4,
-20,
49,
30,
-17,
61,
2,
49,
44,
-36,
23,
23,
16,
5,
7,
4,
-17,
-11,
40,
-2,
27,
14,
-28,
-40,
7,
-25,
23,
-5,
55,
0,
29,
29,
-9,
52,
34,
40,
-6,
-27,
-65,
-13,
-13,
-17,
-18,
-6,
4,
6,
-47,
-30,
-35,
-10,
0,
-8,
25,
23,
28,
8,
-16,
-21,
-3,
-18,
-21,
29,
-5,
-9,
16,
20,
-3,
29,
-2,
-6,
-41,
28,
15,
-16,
8,
-34,
0,
0,
-23,
-28,
-4,
60,
-5,
0,
-3,
-26,
34,
23,
-10,
-17,
0,
76,
-1,
-20,
8,
7,
-30,
5,
-20,
8,
-41,
-5,
-5,
36,
-5,
21,
-43,
47,
47,
37,
0,
-16,
2,
49,
22,
-28,
16,
-41,
54,
19,
-23,
50,
5,
-6,
33
] |
Btjshnell, J.
Defendants, together with Guaranty Trust Company, were trustees under the last will and testament of Edward E. Hartwick, deceased, and as such were the owners of 100 shares of common stock of the trust company. This stock was sold on March 21,1931, to Robah G. Hoover, who inserted the name of his wife, Mary A. Hoover, as transferee and the shares were transferred to Mrs. Hoover on the hooks of the company the day of its sale.
The Guaranty Trust Company of Detroit was closed by the appointment of a receiver on July 1, 1931, and later an order was entered fixing the liability of its stockholders and authorizing the receiver to sue therefor. A statement of its condition at the close of business December 31, 1930, shows the book value of its stock to be about $200 a share. It was sold to Hoover within three months thereafter for 45 cents a share and the purchaser has since received his discharge in bankruptcy.
Mrs. Hartwick, the active trustee of the estate, testified that she instructed her son to sell the stock because of the advice of her lifetime friend, Louis E. Hart, a Chicago attorney. Mr. Hart was called as a witness by defendants; he testified he told Mrs. Hartwick that bank stocks were not a proper investment for a trust estate and that they should be sold immediately. Upon cross-examination, he said:
“I made no inquiry into the price of the stock. My recollection was that it was carried at $15,000 in the inventory, but it may have been 13. I had no thought whatever as to what price they could get for it, and that would not have changed my advice one way or the other. If I knew the best price they conlcl have got for it was $45,1 certainly would have advised them to sell anyhow. I would do that in a trust estate if I felt there was a possibility of double liability against the estate. I think it was one of the very important elements in my mind with reference to this particular estate. I did' not know anything whatever about it, whether it was the strongest or the weakest bank in Detroit. ’ ’
Mrs. Hartwick' was called by plaintiff and subjected to a most searching cross-examination. The trial judge devoted much of his opinion to an analysis of her testimony. "We quote a portion:
“As opposed to her story we have a chain of circumstances which counsel for plaintiff is convinced is so strong that the court can come to no other conclusion here but to find that this was an attempt to get rid of this stock in order to avoid the liability. I have in mind all that counsel for plaintiff has said. I have in mind these receipts which were issued for these three certificates of stock, all bearing different numbers, all issued the same date, with the stock of the brother of Mrs. Hartwick in between the two receipts for the estate and her own stock. Now how that happened, I don’t know. All I can do is to become suspicious, and I have done so. I have thought, well, the family knew about this matter and they all went down and got rid of their stock, and these receipts prove it. But that is an inference again, it is a conclusion that I can draw, and I can say my suspicion has been aroused. There again the court is confronted with a situation where I must permit a matter of suspicion and an unexplained circumstance — I am talking about these three receipts now — I must permit that to directly challenge the truth of Mrs. ITartwick’s testimony, and that I cannot do. I cannot find it in my con science to do that, because I have not heard anything or seen anything or sensed anything, from watching this witness on the stand, which permits me honestly and conscientiously to disbelieve her.”
The remainder of the testimony largely consists of the necessary technical récord proof regarding the financial condition of the trust company, the details surrounding the appointment of a receiver, the manner in which the investments of the Hartwick estate were handled, admissions of the uncolleetibility of Hoover and Mrs. Hoover’s lack of knowledge of the transaction. To this may be added a claim of presumption of knowledge of insolvency on the part of the trust officer who handled the estate and the inference that such knowledge is imputed to the active trustee. All of this testimony was considered by the trial judge who concluded that he was bound to accept the testimony of Mrs. Hartwick. He said:
“For that reason, if for no other, plaintiff in this case cannot prevail against this trust estate and these trustees.”
Plaintiff’s appeal is submitted upon two ques-ti ons:
Does the statute, 3 Comp. Laws 1929, § 12005, provide that a transfer of trust company stock does not relieve the transferor of his liability for assessment, if made within four months prior to its closing?
Was the transfer of 100 shares of stock by defendant, Hartwick estate, made with the fraudulent intent of avoiding its liability as a stockholder?
Appellant supports its first question with a most interesting and persuasive argument for a different interpretation of the four-months ’ rule than the one evidently applied by the trial court.
Appellee says the question of interpretation was not raised at the trial. The bill of complaint, how ever, states the proposition and appellant builds its case around the problem. We feel it is better to consider and decide this question.
Section 12024, 3 Comp. Laws 1929, reads in part:
“The stockholders of every trust company shall be individually liable, equally and ratably, and not one for another, for the benefit of the creditors of said trust company to the amount of their stock at the par value thereof, in addition to the said stock.”
An assessment was levied in this receivership and sustained in Detroit Trust Co. v. Allinger, 271 Mich. 600. See, also, Gauss v. Detroit Trust Co., 297 U. S. 695 (56 Sup. Ct. 572), where a writ of error issued in this cause was dismissed in the United States supreme court.
Section 12005, reads in part:
“All sales, transfers, and assignments of any stock made or given with the intent and purpose on the part of such stockholder to hinder, delay, or defraud the creditors of such company or any of them shall be null and void as against the creditors of such company, except as to purchasers in good faith and for present fair consideration, if made within four months prior to the filing of a petition asking for the appointment of a receiver of such company. ’ ’
The quoted portion of the foregoing section was first incorporated in the trust company act, as part of Act No. 67, Pub. Acts 1929 and similar language appeared as an amendment to the banking act (Act No. 46, Pub. Acts 1927 [3 Comp. Laws 1929, § 11906]).
The law prior to the 1927 amendment and the 1929 enactment is stated in Foster v. Row, 120 Mich. 1 (77 Am. St. Rep. 565). It is suggested by the appellee in a companion case, Detroit Trust Co. v. Granger, post, 152, that Foster v. Row, is controlling on this question.
Appellant in the instant case, in discussing the four-months’ rule, says:
“At first blush, it might appear that this clause limits the liability for fraudulent transfers only to the period of four months prior to receivership. This would mean that while, prior to the act, a fraudulent transfer five months prior to receivership would not relieve the transferor of liability, yet, subsequent to its enactment, such fraudulent' transfer would relieve the transferor of liability.. This would mean that the Michigan legislature sought by this act to protect fraudulent transfers after the lapse of a four-month period. That such an interpretation of this statute would contravene the well-recognized principles of public policy abhorring fraudulent conduct there can be no doubt. Nor should such interpretation be given to the legislative intent except for the absence of any possible construction along lines consistent with established public policy.”
Prior to 1927 there was nothing in either the banking or trust company acts that specifically said that a transfer of stock made, with intent to avoid an assessment was invalid.
The question resolves itself into this: Did the legislature by its enactment of 1929 intend to increase or diminish the liabilities of stockholders in trust corporations? No records of committee reports or legislative debates are available as aids in a search for the correct answer. The holdings of Federal and other appellate courts are at best only persuasive because they deal with banking statutes containing varying provisions.
Appellant argues that the statute in its present form does not express the true intent of the legisla ture and that its meaning may be made clear if the word “or” is interpolated in the present arrangement. It is also suggested that the statute may be clarified by a transposition of its language. The construction sought is either:
“All sales, etc., shall be null and void as against the creditors of such company, except as to purchasers in good faith and for present fair consideration or if made within four months prior to the filing of a petition,” etc., (the italics indicating the interpolation)
or
“All sales, transfers,, and assignments of any stock made or given with the intent and purpose on the part of such stockholder to hinder, delay or defraud the creditors of such company or any of them, if made within four months prior to the filing of a petition asking for the appointment of a receiver of such company, shall he null and void as against the creditors of such company except as to purchasers in good faith and for present fair consideration.” (The italics indicating the transposition.)
People v. Cain, 171 Mich. 279, and City of Grand Rapids v. Crocker, 219 Mich. 178, are cited as authority for the interpolation and City of Detroit v. Chaffee, 70 Mich. 80, for transposition.
In the Cain Case, it was necessary to read the word “or” into a wholesale liquor dealers’ statute (A.ct No. 170, § 2, Pub. Acts 1911) in order to give the section complete sense and meaning. The word “or” was obviously inadvertently omitted. The case of City of Grand Rapids v. Crocker, supra, 184, held that “the intention of an act will prevail over the literal sense of its terms.”
The primary rule governing the interpretation of statutes is to ascertain and give effect to the inten tion of the legislature. The court said in City of Grand Rapids v. Crocker, supra, 182:
“All others serve but as guides to assist the courts in determining such intent with a greater degree of certainty. If the language employed in a statute is plain, certain and unambiguous, a bare reading suffices and no interpretation is necessary. The rule is no less elementary that effect must be given, if possible, to every word, sentence and section. To that end, the entire act must be read and the interpretation to be given to a particular word in one section arrived at after due consideration of every other section so as to produce, if possible, a harmonious and consistent enactment as a whole.”
City of Detroit v. Chaffee, supra, 87, holds that:
“It will not do to give the statute such a strict construction as to make it meaningless. In order to give effect to a statute, courts will sometimes transpose sentences, so as to place them in their just connection with the context to which they relate.”
The statute in question, if read as written, is plain, certain and unambiguous without the addition of the word “or” and is not meaningless if read without transposition of its sentences.
Had the legislature intended that all transfers of stock made within four months preceding a receivership would, per se, not avoid the transferors’ liability for stock assessments, it would and should have written the quoted part of the section as suggested by appellant.
Courts are sometimes facetiously charged with indulging in judicial legislation, but they should not assume to exercise this doubtful prerogative, nor should they be concerned with policies of legislation so long as they do not transgress constitutional limitations.
We are unable to agree with appellant’s premise that “any transfer of the stock of a trust company made within four months prior to receivership of such company is void as against creditors of a trust company and does not relieve the transferor of his liability for assessment.” Nor can we arrive at this conclusion in this case except by an unwarranted interpolation or transposition of words. The authorities heretofore cited do not authorize such action under the facts presented.
In this connection, see the companion cases of Detroit Trust Co. v. Granger, post, 152, and Detroit Trust Co. v. Hockett, ante, 124.
The trial judge did not discuss appellant’s first question in his written opinion; an answer to it was essential to decision. It must be assumed from the decree that it was answered in the negative and we are in accord with that answer.
We have heretofore quoted at'length from the circuit judge’s views on the question of fraudulent intent. This is an appeal in chancery and a trial de novo. We have therefore examined the testimony and weighed the evidence.
We are strongly impressed that the real purpose behind the transfer was to avoid the anticipated stockholders’ assessment.
At the time of the transfer, the Guaranty Trust Company itself was acting as one of the three testamentary trustees. An inventory of the Hartwick estate filed May 12, 1919, shows 50 shares of Guaranty Trust Company stock valued at $6,000. This same stock, to which 50 shares had been added later, is shown in the twelfth annual account filed July 31, 1930, and its value is given as par, $10,000, inventory valuation, $13,500. (Stock was sold to old stockholders when the trust company was reorganized in 1926 at $150 a share.) These 100 shares were sold by the trustees in 1931 for $.45 a share and all three trustees indorsed the stock certificate, the . trust company’s signature being affixed by its secretary and treasurer. The ostensible purchaser, Robah G. Hoover, was at the time doing some work in the office of Hartwick Properties, Inc. At the trial, he could not produce the check which he gave for the stock. The certificate was transferred the same day of the claimed sale and someone requested that the new certificate be issued in the name of Mary A. Hoover, which was done. Hoover later listed the assessment on this stock in his bankruptcy schedule stating it was in fact owned by him. Mrs. Hartwick sold 44 shares of her own trust company stock to Hoover on the same day and in the same manner, but this certificate was returned to her later by Hoover upon her request, through Austin, the manager of the Hartwick companies. At the time, Hoover was indebted to Mrs. Plartwick in rather large amounts and both Hoover and his wife were insolvent when the stock was transferred. Hoover says he paid $45 for the stock to Edward N. Hartwick but the record contains a receipt given to the trust company for the new certificate and signed by Hartwick.
Guaranty Trust Company stock sold for $10 a share before it was taken off the exchange, and when the 100 shares were transferred, the same stock was being purchased by brokers for witness Anhut on “standing orders” at from $3' to $5 a share. No dividends had been paid on the stock for about one year.
Mrs. Hartwick was the dominating and active manager of the trust estate and to attribute to her suck an abysmal ignorance of the realities of the situation as is contained in the opinion of the trial judge imposes considerable strain upon one’s credulity.
The trial judge indicated that he could not draw reasonable, natural and ordinary inferences from well established facts. This is not the law. See Ginsberg v. Burroughs Adding Machine Co., 204 Mich. 130; Standard Drug Store v. A. E. Wood & Co., 227 Mich. 333; Johns v. Wisconsin Land & Lumber Co., 268 Mich. 675, and Glenn v. McDonald Dairy Co., 270 Mich. 346. It is the province of the trial judge in a non-jury case, to draw legitimate inferences from the established facts and to weigh the probabilities from such established facts. Ginsberg v. Burroughs Adding Machine Co., supra.
Foster v. Row, supra, required plaintiff to sustain the burden of showing that the transfer was made for the fraudulent purpose of avoiding liability as a stockholder. That opinion says, pp. 25, 27: '
“The cases all seem to hold that the intent to avoid liability is a material element in determining the liability of one who has transferred his stock while the corporation was a going* one. * * * The courts of England hold that the shareholder is not liable where he has made an out and out transfer, and do not consider the motive; holding, however, that where the transfer is merely colorable, or to a mere dummy, the shareholder retains such an interest as makes him liable. The courts of this country have, as already shown, gone further, and hold the transferor liable when they find an intent to escape the statutory liability.”
Intent is a mental condition and is determined not so mncli by what one says as it is by what one does.
“Fraud need not be shown by direct proof, and may be, and generally is, proven by inference from facts and circumstances.” Henneberger v. Matter, 88 Mich. 396, 407.
The reasonable, natural and ordinary inferences from the established facts in the record do not permit agreement with the conclusions of the trial judge.
In our opinion defendants should not be relieved from liability for the stockholders’ assessment on the 100 shares of stock. It has been transferred for the fraudulent purpose of avoiding- the anticipated assessment liability.
The decree of the lower court is reversed and one will be entered here for the full amount of that assessment and interest thereon, with costs to appellant.
North, C. J., and Fead, Wiest, Butzel, Sharpe and Toy, JJ., concurred. Potter, J., did not sit. | [
-21,
38,
70,
-23,
-30,
-15,
16,
9,
14,
-62,
-19,
7,
22,
29,
7,
14,
30,
35,
21,
-9,
67,
-10,
-21,
4,
24,
-22,
18,
-51,
21,
-13,
11,
0,
2,
1,
-6,
0,
-49,
-36,
-12,
-46,
-35,
36,
32,
36,
-21,
-5,
16,
-51,
28,
-30,
12,
23,
54,
16,
3,
-33,
-53,
33,
-37,
11,
75,
-66,
87,
-43,
-1,
19,
-16,
20,
23,
-13,
14,
-17,
30,
-14,
3,
-24,
25,
-11,
-17,
-73,
-20,
-68,
37,
-11,
-20,
-23,
-3,
39,
-71,
8,
-22,
0,
0,
34,
-7,
-20,
12,
-8,
-12,
43,
-15,
-44,
-47,
43,
34,
-7,
6,
-30,
-15,
24,
13,
-8,
30,
14,
-29,
16,
-25,
-35,
-19,
4,
-6,
-37,
-40,
-26,
45,
35,
8,
-11,
44,
-22,
-5,
40,
-47,
26,
-11,
-26,
-33,
-23,
-43,
4,
25,
6,
-37,
-1,
-14,
12,
35,
0,
58,
3,
-29,
11,
21,
11,
33,
-3,
-40,
-8,
-4,
-25,
6,
-15,
-21,
3,
-45,
9,
-1,
-28,
-26,
15,
-23,
-27,
0,
-8,
-26,
25,
-18,
-20,
-12,
54,
4,
-5,
10,
-3,
6,
-100,
12,
6,
24,
26,
31,
17,
-29,
29,
-40,
56,
-1,
18,
-8,
22,
28,
-14,
-62,
6,
8,
-32,
28,
-6,
48,
-30,
-35,
50,
44,
19,
-9,
-3,
-42,
-92,
14,
-47,
66,
6,
-17,
51,
1,
-39,
38,
-4,
1,
25,
3,
10,
-10,
-31,
-14,
28,
29,
38,
45,
18,
-27,
-19,
13,
-32,
-12,
-14,
0,
-21,
-6,
36,
-43,
14,
-47,
39,
14,
18,
-15,
-35,
-7,
0,
13,
18,
-59,
43,
51,
-37,
-4,
-21,
-3,
-13,
8,
-57,
30,
-3,
0,
-42,
-14,
36,
-53,
-31,
2,
-19,
-38,
7,
37,
1,
-28,
5,
-50,
-14,
51,
55,
33,
-23,
33,
5,
-39,
-8,
12,
37,
-42,
45,
-32,
-27,
31,
38,
-20,
-18,
5,
-7,
40,
-6,
14,
-11,
35,
38,
33,
41,
35,
7,
43,
28,
-45,
40,
20,
27,
14,
-42,
-26,
-5,
5,
-9,
2,
-13,
-81,
-27,
0,
-32,
8,
-23,
16,
19,
31,
10,
0,
-44,
13,
-21,
-16,
7,
-26,
-17,
19,
13,
12,
-23,
29,
78,
25,
38,
40,
44,
55,
13,
-11,
-37,
-42,
-39,
63,
58,
46,
47,
-62,
22,
-2,
22,
-42,
8,
-14,
23,
-8,
0,
56,
14,
0,
1,
22,
-5,
-20,
78,
-88,
41,
16,
55,
5,
-34,
31,
-26,
-80,
-35,
2,
37,
-7,
-2,
-11,
-5,
19,
-13,
1,
-6,
14,
9,
34,
-37,
-15,
-34,
19,
-27,
16,
15,
1,
25,
-28,
14,
14,
-32,
5,
9,
-30,
-12,
10,
32,
-15,
10,
13,
-6,
-22,
-3,
0,
13,
40,
-24,
0,
40,
42,
19,
4,
-3,
82,
60,
-6,
57,
2,
-5,
-20,
4,
12,
3,
19,
-1,
51,
-64,
63,
30,
-28,
-30,
59,
-41,
33,
18,
25,
17,
13,
-14,
-17,
5,
27,
-35,
-5,
-16,
9,
28,
20,
35,
-48,
5,
-1,
-82,
-15,
15,
21,
-31,
0,
-3,
0,
20,
-4,
-36,
48,
-40,
3,
-38,
9,
-33,
-29,
18,
-2,
-76,
-42,
-5,
3,
-17,
-22,
39,
1,
-6,
26,
-23,
51,
50,
59,
-12,
-36,
21,
-7,
41,
21,
-6,
57,
-18,
-1,
-25,
-50,
-9,
-29,
-33,
-2,
31,
20,
-3,
-19,
-17,
5,
12,
-20,
-37,
-2,
-6,
-12,
-20,
-37,
-30,
-12,
15,
50,
44,
21,
-20,
4,
19,
-58,
49,
3,
-16,
6,
-47,
-13,
-41,
9,
4,
-8,
-6,
1,
-2,
32,
-11,
5,
28,
-37,
-20,
9,
-7,
5,
-57,
-66,
61,
5,
20,
-76,
33,
36,
-32,
4,
-30,
7,
-55,
20,
27,
-1,
39,
-40,
-49,
10,
7,
-4,
-43,
-52,
18,
5,
-56,
31,
-17,
12,
3,
-34,
-4,
2,
4,
-2,
3,
17,
26,
17,
-10,
54,
7,
-21,
2,
-37,
22,
-4,
-48,
3,
47,
-28,
9,
7,
1,
-32,
-20,
-10,
21,
37,
-41,
17,
-24,
0,
4,
70,
-15,
-25,
-7,
36,
-28,
16,
-64,
-1,
-35,
18,
-58,
38,
17,
-16,
12,
-14,
-16,
-7,
10,
69,
-2,
-8,
11,
-5,
-36,
33,
24,
-30,
27,
23,
15,
-8,
45,
-39,
3,
-12,
-31,
19,
52,
9,
5,
32,
11,
-54,
15,
-18,
-7,
38,
8,
-14,
-12,
14,
-27,
-11,
28,
-12,
-23,
-31,
37,
-42,
-6,
45,
-29,
17,
-55,
-2,
0,
-5,
-22,
-17,
-41,
-15,
-39,
4,
29,
13,
7,
18,
-21,
-55,
-1,
24,
-49,
-23,
5,
-7,
28,
-7,
-17,
-30,
-69,
-3,
16,
-23,
9,
-46,
13,
-20,
43,
47,
-23,
-8,
67,
4,
37,
3,
-4,
-23,
-44,
-19,
-61,
-40,
43,
-9,
-30,
2,
19,
34,
-13,
-17,
-32,
-10,
-9,
-17,
6,
-34,
-36,
37,
-26,
52,
24,
14,
-25,
-6,
-9,
51,
-25,
28,
13,
24,
0,
-35,
6,
-46,
-29,
11,
41,
64,
3,
31,
0,
-19,
24,
-20,
0,
15,
-30,
0,
3,
29,
41,
-35,
-37,
34,
-45,
30,
-8,
-16,
6,
-19,
27,
-28,
29,
22,
-26,
-63,
38,
-19,
6,
-38,
31,
-41,
1,
3,
11,
27,
0,
34,
-18,
68,
-35,
8,
16,
-70,
10,
19,
-34,
0,
-39,
-7,
25,
18,
-6,
13,
-4,
5,
-26,
-26,
21,
11,
26,
-5,
5,
-72,
-28,
12,
-8,
-42,
0,
-20,
-1,
-40,
17,
-29,
28,
-41,
22,
37,
10,
8,
13,
-36,
-16,
36,
0,
-23,
48,
75,
-33,
0,
11,
-17,
-47,
-44,
-16,
22,
3,
3,
-18,
32,
13,
-8,
-45,
-65,
15,
-12,
40,
-12,
4,
19,
31,
28,
15,
-5,
12,
1,
62,
44,
7,
13,
-19,
-6,
-81,
-39,
1,
32,
-25,
23,
32,
-22,
33,
6,
-8,
-64,
-34,
-22,
-32,
-2,
-11,
31,
4,
49,
-2,
-44,
52,
-9,
-2,
12,
9,
10,
-13,
44,
12,
6,
59,
-41,
-7,
-25,
-27,
-10,
-7,
-10,
-15,
-17,
-25,
69,
-31,
19,
-11,
-21,
-32,
-11,
-61,
-43,
-47,
-20,
-9,
17,
-24,
-29,
-90,
16,
2,
-11,
44,
20,
-52,
25,
19,
-42,
23,
0,
15,
-22,
30,
5,
15,
29,
35,
38,
-23,
28,
-43,
37,
-2,
-8,
-29,
5,
36,
10,
-11,
-49,
-32,
42,
61,
-29,
37,
23,
1,
65,
-12,
23,
25,
-7,
44
] |
McAllister, J.
Plaintiff filed a bill in equity to rescind and cancel a deed and for reconveyance of real estate on the ground of fraud. The trial court entered a decree granting the relief sought, and defendant appeals.
The issue is largely one of fact. Plaintiff, Anna E. Robinson, was the owner of 120 acres of land situated at the southwestern corner of Nine Mile road and Wyoming avenue in the village of Oak Park in Oakland county. At the time of the transaction in question the property had an assessed value of $35,000; plaintiff figured that there were unpaid taxes against the property of about $15,000, but in fact such taxes with interest and penalties amounted to $20,014.92. In addition, there were further tax incumbrances in drain taxes against the property, but there was some question about the validity of such taxes because of a court decision.
Dr. Clayton J. Ettinger, the president of the defendant college, had filed articles of incorporation for the National Academy of Science and Human Relations, Inc., in January, 1936; later the name was changed to the North Central College, Inc.; and afterward, in May, 1938, the name was again changed to the Great Lakes College, Inc., its present name. When it was first incorporated, the articles showed assets in real estate of $5,000, with Dr. Ettinger the owner of 98 shares, Anna Ettinger the owner of one share, and Glen L. Ettinger the owner of one share. The college opened on October 11, 1937, occupying quarters on the second floor of a business and office building in Ferndale, with an affiliation with the School of Music, an institution in Ferndale, and with a contract arrangement for the use of the physical, chemical, and biological laboratories with the Ferndale High School. These were used by the college at night and on Saturdays.
In 1938 Dr. Ettinger was investigating the opportunities for expansion and better accommodations. His attention was directed to the property owned by plaintiff; and during the first part of April, 1938, he called on Miss Robinson to discuss possibilities of securing the land. There followed a number of interviews, in the course of which Dr. Ettinger explained about the school and his ideas on education. He had previously prepared an “atlas,” setting forth the philosophy of the school, and charts showing comparative attendance at various colleges. These he produced for the information of Miss Robinson, together with architectural prints showing views of a proposed unit of buildings of the new college, and a design of one of the buildings, as well as an idealized plan for a campus to be located on a site of approximately 120 acres. He also presented to her a catalogue of the new college.
Miss Robinson was deeply interested in the use of the property as a memorial to her family. She had previously bought the interest of one of her brothers in the land with the hope of using it for such a memorial. Washington I. Robinson, a brother of plaintiff, now deceased, had been the previous owner, and, some years before, had offered the land to the village of Oak Park as a gift to be used for general public purposes. In the first discussions, Dr. Ettinger suggested an offer of $5,000 for the purchase of the property. Plaintiff says that she asked $10,000 for the land and stated that it would be satisfactory if the college would pay $1,000 a year for 10 years. However, as the discussions proceeded, she came to the conclusion that, instead of there being only $12,000 or $15,000 in taxes against the property, there was in excess of $70,000 in tax claims. At first, she stated, she had thought that the drain taxes were “illegal.” Whether they were valid or not, it was plaintiff’s impression that at the time of the transaction in question, such taxes were incumbrances against her property.
The result of the negotiations was that, upon the agreement of defendant that the college would designate its campus as “Robinson Campus,” as a memorial to her brother, Washington I. Robinson, and would also place a plaque in his memory in the main building, plaintiff conveyed the real estate in question to defendant as a gift.
Plaintiff, however, contends that she was persuaded to make such conveyance because of fraudulent misrepresentations of fact. She claims that the statements with regard to the school were false; and she further insists that it was fraudulently represented to her that the college had sufficient funds to begin the erection of a $300,000 school building, which was to be commenced before September, 1938; that upon discovery of such misrepresentations, she demanded reconveyance and, failing to secure the same, filed her bill to set aside the deed.
At the outset defendant claims that any testimony as to representations made to plaintiff prior to the execution of the deed and contract is inadmissible, because all such statements were merged in the written instruments. But where the inducements for the execution of a contract are fraudulent representations as to existing facts, testimony as to such representations is not within the parol evidence rule. They do not vary, change, or alter the terms of the written contract and are admissible in evidence, as bearing upon the question of whether a contract, fair on its face, was procured by fraud. Plate v. Detroit Fidelity & Surety Co., 229 Mich. 482; Delta Asbestos Co., Inc., v. Sanders, 259 Mich. 317. Plaintiff testified that upon the occasion of several interviews with Dr. Ettinger, he was accompanied by Charles D. Gibbons, who appears to have taken an interest in the development of the college; that Dr. Ettinger showed her the catalogue of the college and also left with her an account from a newspaper with regard to the proposed construction of the college building, including a picture of the building. She claimed that Dr. Ettinger and Mr. Gibbons talked continually about having the building up, so that the school could start in September; that they had men waiting to commence work, and that they would start the building as soon as they had the land; that they said that the reason why they were in such a hurry was that they had the men ready to start work as soon as they could get the deed; that they said: “We must have the deeds right away, if we had the deeds we could commence right away;” that the building would cost about $300,000. She further testified that she was advised that they had enough financial backing to start the project. Among the foregoing representations, which plaintiff states were made to her, certain of them are claimed to have been made by Mr. Gibbons, but in the presence of Dr. Ettinger.
In certain of the discussions which plaintiff had with Dr. Ettinger and Mr. Gibbons, Lizzie J. McSweeney, an attorney and friend of plaintiff, was present. Miss McSweeney testified that about July 21, 1938, the two men were present at a meeting and showed plans and specifications of a beautiful building; that Dr. Ettinger told her that it was to cost $300,000; and that “they could finance the first unit, and they wanted that ready by the 1st of September to occupy for school purposes;” that Mr. Gibbons, in the presence of Dr. Ettinger, stated that “they had to have the deeds immediately and as soon as the deeds were executed they were going to break ground immediately to start the college, so they would have the first unit ready by the 1st of September for the occupancy by the school.”
With regard to the newspaper account which Dr. Ettinger had previously left with plaintiff, it was therein stated that a group of persons had been present at a meeting to discuss plans for the college, “including a $300,000 liberal arts building, which, according to plans, will be constructed before October 1st.” The date of the newspaper was May 19, 1938.
On November 15, 1938, plaintiff, through her attorneys, wrote to defendant stating that the college building had not been commenced, and asked for information relative to contracts that had been let, and the amount of funds on hand to carry out the development. The plaintiff’s attorneys also advised defendant that they had been unable to discover that the college had any assets with which to erect such a building. Receiving no answer to this letter, on November 22, 1938, the attorneys for plaintiff gave notice that their client was rescinding and asked for a quitclaim deed. Upon refusal by the defendant to comply with such request, plaintiff, on December 9,1938, filed her bill of complaint.
Plaintiff’s testimony, as well as that of Miss McSweeney, was contradicted by Dr. Ettinger and Mr. • Gibbons. Dr. Ettinger was practically the sole owner of the college. He made strenuous efforts to have various of the taxes cancelled by public author-. ities between the time the college received the deed and the time plaintiff took steps to rescind, and in several instances he was successful. The case in its essentials is a dispute of fact.
Chancery appeals are heard de novo. "While the findings and decree of the trial court do not have the effect of a judgment of a suit at law, we are impressed with the fact that the trial judge had the benefit of seeing and hearing the witnesses; and in a case where there is such sharp dispute of fact, we are inclined to attach a certain importance to his conclusions. In this case, moreover, plaintiff was receiving nothing whatever for the conveyance of her property except an agreement that in the college building there would be a memorial to her brother and that the campus would bear his name. She was a woman 82 years old, and while there is no claim that an imposition was practiced upon her because of her advanced years, it is a plausible conclusion that she was influenced, in conveying the land, by the consideration of promptness and dispatch in having such a memorial constructed. The consideration of time might not have the same urgency in the case of a younger person. Furthermore, there is the cogent circumstance that the newspaper account about the college, which was given to plaintiff by Dr. Ettinger, gave special prominence to the statement that the college building, costing $300,000, “according to plans, will be constructed before October 1st.” These facts, together with other testimony sustaining her claim, are persuasive. "We are of the opinion that she established her case by the preponderance of the evidence.
While there are some inconsistencies and contradictions in certain of the testimony of the plaintiff, they are not of such nature or importance as vitiate her credibility or render her claims improbable. We have not discussed the many questions argued regarding the status of the college and the representations made concerning its character and functioning, as the disposition of the foregoing issue mates it unnecessary to our determination.
On a review of the record, the decree of the trial court is affirmed, with costs to plaintiff.
Bushnell, C. J., and Sharpe, Potter, Chandler, North, Wiest, and Butzel, JJ., concurred. | [
-8,
4,
23,
-46,
-29,
26,
51,
-3,
-11,
3,
0,
-36,
39,
-3,
22,
-10,
26,
-32,
-10,
0,
1,
-67,
46,
-25,
-48,
-5,
32,
-56,
20,
-44,
-16,
-20,
-40,
38,
26,
-16,
-3,
-42,
-16,
26,
-84,
-32,
-5,
-14,
15,
59,
0,
-18,
4,
-16,
44,
-42,
32,
30,
3,
-39,
-7,
-7,
-4,
-50,
-19,
-9,
36,
-9,
27,
19,
27,
-11,
-4,
4,
-26,
-12,
48,
13,
4,
7,
8,
-4,
-24,
-20,
-66,
-17,
18,
18,
-26,
4,
3,
-5,
21,
-15,
-49,
9,
-26,
65,
1,
-8,
22,
-12,
11,
10,
21,
20,
-40,
28,
-11,
12,
-52,
-32,
-34,
30,
-15,
-9,
31,
-4,
-13,
12,
-9,
-5,
9,
21,
14,
-1,
-7,
-40,
4,
49,
-42,
35,
-11,
-9,
-48,
-5,
-104,
22,
-7,
2,
21,
12,
-1,
-61,
-28,
56,
0,
-12,
-26,
34,
-61,
5,
31,
-30,
-65,
-38,
23,
59,
3,
-43,
22,
0,
-31,
-39,
11,
-30,
5,
-20,
-28,
-13,
57,
17,
-21,
2,
56,
33,
-58,
-43,
-42,
-26,
14,
0,
-40,
-40,
-2,
2,
12,
-11,
-37,
-44,
62,
-47,
-30,
40,
22,
-9,
-10,
-42,
-27,
12,
-20,
22,
-17,
-28,
13,
-18,
13,
15,
-19,
-15,
23,
-6,
10,
62,
32,
44,
-12,
-5,
30,
-2,
-13,
-23,
57,
2,
29,
-27,
1,
37,
0,
14,
34,
-17,
-37,
-15,
-10,
-1,
-56,
-6,
-48,
0,
6,
63,
-31,
-14,
-10,
16,
-1,
7,
-63,
34,
-17,
6,
-21,
14,
-12,
-25,
-54,
2,
-6,
36,
10,
22,
48,
-23,
-42,
2,
-23,
36,
-22,
-12,
-23,
35,
-53,
1,
-11,
-17,
-19,
14,
-35,
-37,
-20,
-49,
20,
43,
55,
-24,
26,
39,
20,
54,
-47,
36,
-8,
-25,
-27,
29,
17,
-23,
47,
-7,
-23,
-59,
-9,
-1,
-41,
18,
42,
-10,
43,
18,
-9,
-19,
26,
-49,
24,
4,
-7,
-43,
32,
-23,
-14,
-29,
49,
-21,
26,
-5,
-90,
38,
26,
10,
67,
-32,
-11,
17,
-11,
33,
16,
23,
18,
1,
24,
-34,
13,
-63,
38,
18,
28,
18,
-3,
-1,
-91,
-29,
-26,
-25,
1,
-11,
-20,
54,
-18,
1,
28,
4,
-35,
-14,
-7,
1,
15,
-38,
-3,
52,
-27,
-43,
13,
14,
-6,
31,
-59,
90,
19,
7,
-53,
-14,
-14,
-7,
2,
-32,
18,
68,
-1,
-17,
-15,
-9,
-41,
23,
-34,
-7,
-21,
22,
-10,
-57,
30,
14,
-5,
-42,
39,
53,
37,
30,
-19,
-43,
25,
-10,
-2,
-3,
-25,
-52,
38,
21,
9,
20,
4,
-20,
31,
1,
31,
9,
-76,
-30,
2,
-3,
46,
-2,
18,
6,
-29,
30,
44,
-22,
22,
-46,
-43,
37,
-44,
7,
-17,
57,
-12,
-22,
-7,
-28,
-30,
25,
16,
-20,
46,
23,
-32,
-22,
-7,
5,
11,
-29,
67,
-52,
-6,
-20,
25,
-3,
-5,
6,
0,
13,
5,
49,
18,
-18,
-36,
-1,
31,
1,
16,
-21,
-21,
28,
-9,
-20,
-10,
-30,
-52,
25,
-47,
-3,
-35,
-62,
25,
-5,
32,
60,
20,
16,
23,
-18,
-11,
49,
0,
-35,
6,
-7,
28,
-6,
6,
-39,
0,
26,
-36,
-58,
47,
54,
13,
48,
-2,
1,
55,
22,
-1,
50,
-7,
5,
-10,
70,
86,
17,
43,
45,
0,
-6,
-49,
29,
-44,
2,
1,
34,
51,
3,
-13,
21,
17,
13,
-7,
17,
13,
-43,
-2,
17,
-3,
27,
-1,
-34,
-28,
1,
-21,
-40,
35,
-5,
-24,
-5,
29,
-52,
38,
38,
14,
2,
-14,
22,
10,
-13,
60,
-28,
-8,
18,
-3,
-53,
-27,
35,
26,
-17,
-11,
-38,
-12,
38,
13,
22,
-41,
38,
-2,
-10,
-35,
11,
18,
-22,
25,
12,
70,
-41,
14,
-50,
-53,
18,
9,
-42,
5,
24,
19,
-64,
-7,
8,
19,
46,
49,
9,
-4,
-10,
-2,
9,
15,
-11,
36,
-4,
55,
46,
7,
27,
-7,
3,
25,
25,
23,
44,
-37,
-55,
9,
-12,
-53,
-19,
-28,
-6,
-78,
15,
-4,
4,
-24,
-14,
-56,
-16,
-27,
26,
4,
16,
-34,
-44,
15,
0,
38,
-24,
54,
10,
13,
22,
5,
-23,
58,
-11,
67,
21,
-35,
-13,
-17,
-4,
-48,
18,
-20,
31,
39,
13,
-9,
0,
-8,
54,
55,
-4,
-3,
50,
15,
-9,
16,
-43,
10,
-9,
0,
1,
-6,
28,
18,
24,
-6,
82,
0,
17,
-9,
1,
-6,
-14,
-20,
-52,
12,
-8,
21,
-52,
-63,
74,
38,
39,
-55,
15,
-11,
-44,
4,
-19,
43,
-7,
47,
-38,
22,
-8,
20,
-6,
-46,
-12,
-23,
55,
22,
-48,
-18,
-14,
-15,
-7,
-63,
21,
14,
19,
45,
66,
-4,
-20,
-55,
-10,
3,
25,
31,
-24,
-21,
25,
34,
2,
-18,
68,
-7,
-47,
28,
21,
-39,
-53,
2,
41,
0,
45,
-26,
20,
-12,
-20,
-15,
-4,
14,
-26,
-6,
13,
-8,
2,
-14,
-20,
-27,
37,
44,
37,
-49,
47,
41,
-9,
-36,
0,
14,
-2,
27,
-52,
-5,
3,
-11,
29,
-1,
-10,
-49,
53,
-9,
11,
-57,
35,
-9,
-62,
2,
42,
8,
24,
-50,
-47,
13,
-32,
21,
11,
-12,
8,
2,
28,
-50,
28,
10,
-10,
-43,
5,
30,
5,
-1,
-7,
4,
-43,
-28,
-28,
-37,
-16,
-10,
15,
-12,
24,
6,
-39,
-12,
-14,
-34,
-34,
-12,
-20,
52,
29,
17,
0,
54,
-27,
1,
-8,
23,
15,
20,
-33,
-27,
10,
-29,
12,
17,
-57,
23,
27,
-33,
-19,
15,
-15,
-5,
29,
-9,
-10,
-20,
-5,
6,
36,
28,
29,
-11,
61,
1,
31,
14,
-19,
15,
-48,
18,
-34,
-29,
7,
-7,
-18,
-7,
-28,
7,
16,
-11,
-1,
-51,
-18,
-40,
0,
-81,
-17,
-23,
-4,
-22,
29,
19,
-33,
-39,
0,
-23,
27,
34,
60,
3,
43,
-19,
21,
-41,
40,
19,
13,
16,
-33,
43,
-27,
-13,
11,
30,
19,
-14,
-15,
23,
-28,
-31,
-10,
8,
-39,
34,
41,
-23,
-3,
-48,
-26,
-25,
-39,
19,
-12,
-7,
24,
3,
-25,
-5,
11,
52,
23,
-8,
-30,
-49,
21,
-18,
-11,
4,
28,
-4,
20,
66,
-13,
37,
51,
21,
-20,
27,
-3,
-6,
10,
51,
-10,
35,
31,
20,
10,
13,
-13,
3,
12,
28,
-21,
51,
-21,
37,
-43,
54,
-50,
1,
3,
-3,
-12,
72,
-10,
11,
-18,
35,
2,
-22,
-31,
-17,
11,
-26,
50
] |
Sharpe, J.
{dissenting). This is an appeal from an order denying leave to withdraw a plea of guilty to an information charging defendant as follows:
“On or about the 10th day of June, A.D. 1939, at the said city of Detroit, in the county aforesaid (the defendant) having knowledge of the commission of a felony, to-wit, robbery armed of Joseph Moross, which was committed on the 27th day of May, A.D. 1939, by Saul Pearl, Sam Becker, Booker Willis and Severe Robinson, did then and there commit the crime of misprision of a felony by failing to make a disclosure of said felony to the authorities or to do anything toward the apprehension and bringing to justice the persons guilty of the felony so known to him, contrary to the common law in force and effect in this State.”
On December 21,1939, defendant signed a written waiver of trial by jury; and after one witness was sworn and gave some testimony, defendant withdrew his plea of not guilty and entered a plea of guilty. The cause was adjourned to a later date at which time defendant made a motion to withdraw his former plea of guilty. This motion was denied, and following the denial of the motion defendant was given a prison sentence.
At the time the plea of guilty was entered, the following took place:
“The court (to defendant): I understand at this time, through your counsel, you wish to withdraw your plea of not guilty previously entered and wish to plead guilty to the first count in the information?
“The defendant: Yes.
“The court: The count is that on or about the 10th day of June, A.D. 1939, in the city of Detroit, in the county aforesaid, having knowledge of the commission of a felony, to-wit—
“Mr. Fitzgerald: It is a misdemeanor.
“The court: —did then and there commit the crime of misprision of a felony. You make this plea freely and voluntarily?
“ The defendant: Yes, sir.
“The court: And plead guilty?
“ The defendant: Yes, sir.
“The court: No one has made you any promises to get you to plead guilty?
“The defendant: No, sir.
“The court: No one has made any threats to get you to plead guilty?
“The defendant: No, sir.
“The court: You plead guilty because you are guilty?
‘ ‘ The defendant: Yes, sir.
“The court: Well, now, you say that the first charge is a misdemeanor?
“Mr. Pearl: Yes, your honor, it is a common-law offense.
“Mr. Fitzgerald: With.the offense punishable as a common-law offense. It is a common-law misdemeanor even though there is a punishment attached to it of a $2,500 fine or five years’ imprisonment.
“The court: I want that understood.
“The defendant: Yes.
“Mr. Fitzgerald: Yes.
“The court: It is a misdemeanor under the common law. The punishment is provided under the statute in that1 catch-all’ section.
“Mr. Fitzgerald: That is it. It is punishable as though it were a felony.
“The court: Yery well, I will accept your plea and I will refer you to the probation department and remand you for sentence January 10th. The bond is what?”
Defendant appeals and contends that the court was in error in passing sentence upon the defendant as the charge “misprision of a felony” at common law is an ancient common-law offense and as such is obsolete and is not a part of the common law of Michigan; and for the additional reason that defendant had a right to withdraw his plea of guilty before sentence.
The determination of whether the crime of “misprision of a felony” is still a part of our criminal law is one of first impression in our court.
In Const. 1908, sched. § 1, the following provision is found:
“The common law and the statute laws now in force, not repugnant to this Constitution, shall remain in force until they expire by their own limitations, or are altered or repealed. ’ ’
No claim is made that this part of the common law is repugnant to the Constitution or that it has been altered or repealed, but the claim is made that modern conditions have made such a crime obsolete and that the common law may be repealed by conditions which make it inapplicable to present conditions.
In 1 Chitty on Criminal Law (5th Ed.), p. 2, in defining misprision of a felony, the author says:
“Thus, in case of treason and felony, any person knowing the crime to have been committed, and concealing it, even though he has not actively assisted the offender, will be guilty of a misprision of the crime which he has been instrumental in concealing. * * * In all cases, therefore, when a capital offense has been committed, it is the absolute duty, and only safe conduct of the party who is aware of the circumstances, to reveal it as soon as possible to some judge of assize or justice of the peace.”
In the case of State v. Biddle, 32 Del. 401 (124 Atl. 804), the court held that misprision remained as a part of the common law of Delaware. The Vermont court has also indicated that the crime of misprision of a felony is a part of the common law. See State v. Wilson, 80 Vt. 249 (67 Atl. 533).
In the case of Pond v. People, 8 Mich. 150, 177, we said:
“It is held to be the duty of every man who sees a felony attempted by violence, to prevent it if possible, and in the performance of this duty, which is an active one, there is a legal right to use all necessary means to make the resistance effectual.”
In our opinion the determination of the question of whether there has been such a change in condition as. to warrant the repeal of the crime of misprision of a felony is a problem to be solved by the legislative branch of our government. Until the legislature speaks upon this subject we must hold that the crime of misprision of a felony is still a part of the law of Michigan.
“It is now the settled rule in this State that a plea of guilty may he withdrawn at any time before sentence.” People v. Stone, 293 Mich. 658.
In People v. Piechowiak, 278 Mich. 550, we said:
“A considerate procedure of long recognition in this jurisdiction admits of withdrawal of a plea of guilty at any time before sentence, and this is especially true where in a case like this an examination has been waived and, therefore, no informative court-recorded evidence is available.”
See, also, People v. Wexner, 280 Mich. 696.
It is also the accepted law in our State that if a plea of guilty is made under a misapprehension of fact or law, it should be set aside. People v. Utter, 209 Mich. 214. In the case at bar, defendant was charged with an offense known as “misprision of a felony” at common law. We are convinced after reading the record that the defendant did not understand the information to which he pleaded guilty.
Under such circumstances the sentence must be vacated; and the case should be remanded to the circuit court with direction to permit defendant to withdraw the plea of guilty and plead not guilty and have trial.
Bushnell, C. J., concurred with Sharpe, J.
Wiest, J.
I do not join in the opinion of Mr. Justice Sharpe in grafting on the criminal law of this State the so-called common-law offense of misprision of felony.
There is not now and never has been such a substantive crime in the State of Michigan.
At common law the essential of the crime was such a concealment of knowledge of a felony as to constitute the offender in that respect an accessory after the fact. Text-writers on criminal law, cited by my Brother, and works on pleas and procedure in crim inal eases practically all cite Coke on the subject of misprision of felony and let the subject go at that. I, therefore, quote what Coke said in the Third Part of the Institutes of the Laws of England (Ed. 1660, p.139):
“Now are we to speak of concealment or not discovery of felony. As in case of • High Treason, whether the treason be by the Common law or Statute, the concealment of it is misprision of treason; so in case of felony, whether the felony be by the Common law or by Statute, the concealment of it is misprision of felony.
“If any be present when a man is slain, and omit to apprehend the slayer, it is a misprision, and shall be punished by fine and imprisonment.
“And as the Concealment of High Treason is higher by many degrees than the concealment of felony, so the punishment for the concealment of the greater is heavier than of the lesser; and yet the concealment of felonies in Sheriffs or Bailifs of liberties is more severely punished than in others, viz. by imprisonment by one year, and ransome at the will of the King. Prom which punishment if any will save himself, he must follow the advice of Bracton, to discover it to the King, or to some Judge or Magistrate that for administration of justice supplieth his place, with all speed that he can. * * *
“And this is intended of a concealment or not discovery of his mere knowledge: for in case of High Treason, he that knoweth it before it be done, and assenteth unto it, is particeps criminis, and guilty of treason; and in case of felony, he that receiveth the thief, and assenteth to it, is accessory.”
The term “concealment,” as employed by Coke, means something more than mere silence or failure to disclose, unless such, in purpose, is in aid of an offender and of such nature as to constitute one an accessory after the fact.
In modern criminal law mere nondisclosure of knowledge of crime committed by another is not misprision of felony nor any substantive crime.
The old-time common-law offense of misprision of felony, short of an accessory after the fact (if there ever was such a crime, which is extremely doubtful because wholly unsupported by adjudications in England), is not now a substantive offense and not adopted by the Constitution, because wholly unsuited to American criminal law and procedure as used in this State. On this subject see Lorman v. Benson, 8 Mich. 18 (77 Am. Dec. 435); Perrin v. Lepper, 34 Mich. 292, 295; Reynolds v. McMullen, 55 Mich. 568, 583 (54 Am. Rep. 386).
Chief Justice Marshall, in Marbury v. Brooks, 20 U. S. (7 Wheat.) 556, 575, made the following observation :
“It mdy be' the duty of a citizen to accuse every offender, and to proclaim every offence which comes to his knowledge; but the law which would punish him in every case for not performing this duty is too harsh for man.”
Wharton’s Criminal Law (11th Ed.), § 289, states that:
“Misprision, as a substantive offense, however, is practically obsolete.”
In 2 McClain on Criminal Law, § 938, it is said:
“In some States the offense is recognized by statute. But the whole doctrine of guilt by misprision, like that of the guilt involved in being accessory after the fact, has become practically obsolete, and perhaps not a single case can be cited in which punishment for such connection with a felony has been inflicted in the United States. If such criminal liability is recognized in any form it is by statute making particular acts of that character substantive offenses rather than by the preservation of the common-law doctrine of misprision of felony.”
In State v. Wilson, 80 Vt. 249 (67 Atl. 533), cited by my Brother, the case did not result in a conviction for it was reversed and remanded for defective information; and what was said went back to Coke.
State v. Biddle, 32 Del. 401 (124 Atl. 804), consists of the charge to the jury by a Delaware trial court (Court of G-eneral Sessions, Few1 Castle). Defendant had no counsel and the verdict was not guilty.
The conviction is set aside, the information quashed and defendant discharged.
Boyles, Chandler, Forth, McAllister, and Butzel, JJ., concurred with Wiest, J. | [
24,
25,
20,
2,
-22,
-9,
-57,
-13,
-34,
33,
5,
-40,
-21,
-18,
-6,
-9,
25,
37,
25,
-5,
8,
-8,
3,
16,
20,
-56,
-8,
28,
-10,
-2,
-7,
0,
0,
12,
27,
-10,
46,
-51,
-4,
10,
-38,
7,
-1,
7,
-13,
-15,
-22,
-1,
26,
-22,
13,
17,
15,
8,
-4,
-2,
7,
37,
31,
-14,
-13,
17,
-18,
-3,
-29,
0,
-2,
0,
-45,
-15,
-12,
-40,
38,
-15,
30,
33,
9,
12,
9,
45,
10,
34,
-3,
-18,
15,
9,
69,
-18,
-24,
1,
66,
50,
-20,
16,
66,
-52,
16,
10,
19,
-40,
-1,
17,
11,
3,
49,
-17,
-6,
-29,
-11,
34,
25,
-6,
58,
12,
6,
-60,
-28,
-23,
-8,
-59,
18,
-10,
0,
77,
55,
7,
19,
-28,
10,
21,
31,
11,
53,
-25,
26,
8,
-12,
-27,
21,
37,
36,
19,
41,
42,
44,
-2,
-27,
26,
21,
54,
-6,
5,
-40,
23,
-13,
26,
-7,
-12,
2,
41,
12,
42,
23,
-6,
-16,
-41,
-52,
27,
-10,
-25,
-14,
-22,
32,
17,
5,
-35,
-19,
2,
8,
23,
-21,
9,
2,
-8,
3,
-6,
0,
12,
-8,
-22,
48,
-12,
3,
-7,
63,
35,
-6,
6,
33,
15,
3,
-28,
17,
12,
-21,
-17,
-10,
48,
12,
36,
-56,
-12,
10,
-2,
-2,
-5,
-6,
-16,
10,
24,
-19,
37,
-13,
7,
-33,
10,
-4,
52,
-26,
45,
28,
5,
21,
38,
-11,
-1,
26,
22,
9,
21,
-59,
-15,
46,
-17,
4,
15,
25,
-20,
-50,
-1,
21,
13,
-23,
-48,
-20,
-9,
22,
-44,
-20,
16,
-50,
12,
31,
49,
-14,
15,
-21,
21,
-40,
-9,
-19,
-54,
-13,
22,
-3,
-18,
-28,
29,
25,
-16,
-2,
-8,
-28,
8,
-2,
-5,
-39,
0,
-4,
26,
10,
10,
-18,
54,
29,
6,
30,
0,
-15,
33,
24,
19,
6,
-6,
9,
-17,
7,
15,
-29,
-2,
17,
32,
-21,
8,
50,
-14,
-8,
24,
22,
8,
-48,
6,
-22,
-60,
-11,
16,
21,
-20,
27,
-27,
-6,
21,
-14,
4,
-46,
45,
7,
-20,
-39,
-25,
-28,
-11,
-32,
-52,
1,
8,
-34,
17,
-62,
-28,
16,
43,
-2,
-1,
-16,
-19,
-36,
-62,
14,
-41,
43,
-32,
-14,
15,
38,
-43,
-41,
-48,
9,
26,
-1,
0,
-46,
-46,
-14,
23,
25,
-42,
-40,
0,
-45,
-36,
18,
-15,
21,
8,
-5,
1,
0,
-15,
-56,
-20,
-12,
-74,
-13,
-1,
66,
-15,
21,
-35,
23,
-43,
15,
33,
-25,
-40,
-27,
8,
36,
-13,
24,
-14,
80,
56,
-5,
-78,
-7,
-12,
40,
-9,
16,
-17,
-5,
-11,
25,
34,
3,
-22,
44,
-29,
39,
4,
29,
-62,
-7,
100,
-50,
11,
31,
-21,
13,
16,
9,
46,
8,
-48,
-73,
-5,
-22,
-9,
28,
28,
8,
-92,
-48,
31,
6,
5,
5,
-25,
-1,
-21,
-25,
-35,
-22,
17,
-37,
-7,
39,
10,
9,
14,
-3,
-49,
-2,
36,
28,
6,
26,
-13,
-13,
1,
11,
-16,
-16,
6,
-46,
-37,
46,
0,
-34,
-16,
-46,
15,
-10,
19,
-22,
-5,
-2,
64,
-28,
13,
-9,
-37,
27,
31,
-7,
-71,
75,
29,
-9,
10,
-42,
-4,
15,
20,
-9,
0,
14,
6,
27,
-6,
26,
-31,
9,
20,
-27,
-60,
-14,
17,
15,
-41,
2,
-18,
35,
-36,
3,
-51,
7,
8,
22,
-20,
27,
55,
-3,
-22,
-8,
-11,
9,
-11,
6,
20,
1,
-8,
-3,
-18,
-8,
-29,
1,
-11,
-15,
18,
45,
15,
-34,
2,
-36,
2,
-3,
38,
32,
61,
-7,
24,
-5,
21,
7,
9,
9,
0,
60,
16,
1,
-13,
11,
1,
-1,
-15,
-20,
-40,
-33,
11,
13,
4,
12,
-15,
-33,
23,
-29,
17,
20,
32,
-18,
-1,
-2,
-38,
-7,
62,
-8,
-20,
52,
-26,
-38,
7,
-27,
35,
-35,
-10,
-25,
39,
18,
-20,
-31,
-24,
19,
-35,
9,
-5,
-35,
-16,
-10,
16,
27,
19,
-4,
4,
5,
26,
4,
13,
-39,
59,
3,
-10,
11,
8,
-7,
-5,
43,
0,
-4,
-3,
20,
-82,
27,
-25,
0,
25,
43,
-29,
1,
13,
-73,
-44,
6,
-7,
-9,
-1,
35,
-55,
-15,
-3,
8,
-16,
-15,
10,
6,
39,
21,
17,
-5,
-24,
-45,
1,
-35,
-35,
16,
26,
-8,
38,
16,
38,
-9,
-15,
-5,
-9,
24,
8,
48,
-23,
24,
-26,
55,
-9,
-19,
-28,
-16,
8,
2,
13,
-18,
16,
-28,
-3,
12,
-2,
-54,
16,
-10,
32,
-13,
13,
0,
58,
31,
34,
-14,
-44,
9,
-32,
33,
-40,
19,
-9,
30,
35,
-53,
-16,
-12,
0,
2,
-7,
-16,
-17,
-59,
-23,
25,
-47,
13,
-45,
41,
37,
6,
59,
19,
23,
38,
-34,
-57,
-7,
-13,
8,
-12,
-10,
-51,
56,
-28,
-1,
16,
37,
-35,
-42,
25,
19,
-36,
-17,
-43,
-9,
76,
-12,
-9,
4,
-33,
-71,
17,
-17,
-48,
47,
5,
-26,
11,
-36,
-89,
7,
18,
-14,
25,
-22,
18,
29,
17,
-9,
24,
8,
0,
-42,
28,
55,
22,
-19,
-13,
44,
4,
-5,
5,
-44,
-18,
-16,
12,
-37,
4,
20,
5,
1,
-6,
22,
-11,
-30,
-14,
8,
24,
-39,
44,
40,
-26,
-12,
46,
11,
-9,
25,
-31,
-21,
6,
23,
-11,
19,
2,
-19,
-10,
22,
18,
-7,
-30,
-6,
-7,
-4,
12,
3,
-14,
-21,
11,
4,
-26,
-61,
2,
-7,
26,
-85,
38,
-48,
11,
10,
60,
47,
-40,
53,
-28,
6,
19,
9,
-17,
-48,
35,
-20,
-19,
-12,
-35,
-72,
-49,
26,
18,
25,
-21,
-6,
28,
-24,
-28,
-2,
0,
20,
85,
-48,
-14,
-33,
27,
11,
15,
21,
8,
52,
-4,
-32,
3,
-35,
17,
-9,
-13,
10,
12,
-27,
-21,
29,
4,
-3,
27,
-39,
23,
-2,
-11,
18,
15,
22,
-6,
-89,
8,
7,
32,
-74,
24,
7,
-15,
-2,
-58,
16,
-16,
36,
-29,
-18,
0,
2,
18,
-38,
-31,
-5,
29,
12,
-33,
13,
13,
-14,
4,
73,
-55,
-1,
-3,
35,
7,
-23,
-11,
-1,
6,
-11,
22,
-13,
23,
5,
32,
-49,
-24,
-27,
13,
-25,
-25,
10,
40,
-1,
66,
17,
-45,
-30,
24,
-16,
-13,
5,
-3,
43,
-11,
-26,
10,
-4,
15,
17,
9,
20,
-11,
-19,
10,
56,
-24,
23,
27,
-29,
-15,
63,
-47,
0,
-19,
-1,
-46,
-16,
-19,
44,
-75,
63
] |
Chandler, J.
This is an action to recover $500, plus interest, as the amount of insurance claimed under a disability provision in a policy issued by the defendant society. Plaintiff was employed by the Cook Coffee Company as a salesman from December, 1933, to November, 1935, working on a commission basis. In 1927, the Coffee Company had secured a group life insurance policy for its employees. The policy contained a “total and permanent disability” provision in which defendant agreed to pay the full amount of insurance to any employee who became totally and permanently disabled while employed by the Coffee Company. In December, 1934, a certificate was issued to plaintiff, notifying him that he was included in the group policy.
As of August 1, 1935, the defendant and the Coffee Company amended the group policy by executing a rider deleting the total and permanent disability provision, the policy thereafter providing only for death benefits. Plaintiff claims, and the jury found at the first trial, that he was not given notice of the amendment. But the trial court found in its opinion that the Coffee Company was the agent of plaintiff in executing the amendment and that he was bound thereby. Plaintiff has taken no cross-appeal from this ruling.
The court further found that plaintiff was totally and permanently disabled prior to August 1, 1935, the date the amendment became effective. The dis ablement consisted of tbe contraction of tuberculosis by plaintiff. Dr. Derby of Herman Keifer Hospital in Detroit testified that he was disabled early in 1935, prior to August 1st, and should have been hospitalized. Plaintiff testified that he mailed a letter in February, 1936, to the insurer as notification of his disability. He did some work after August 1, 1935, and as late as November of that year. It is claimed by defendant that this fact, and the fact that the' declaration sets up November 1, 1935, as the date of disablement, precludes recovery under the total disability provision, which expired on August 1, 1935. Defendant also contends that the trial court erred in granting plaintiff a new trial in order to introduce additional testimony before the court had reached a decision in the first trial. It is further claimed that the court had no jurisdiction inasmuch as the case was started in Macomb county, in which neither plaintiff nor defendant resides, and because the declaration contained no allegation of residence. It is also claimed that plaintiff did not give due notice of his disablement.
This appeal is taken from the denial by the trial court of a motion for a new trial and a motion to set aside the judgment.
Defendant’s claim that the Macomb county court had no jurisdiction because neither party was a resident of that county cannot be upheld in view of former rulings of this court. Defendant did not object to the jurisdiction until after its appearance and answer were filed and the trial was in progress. Then, when it was discovered on cross-examination that plaintiff was not a resident of Macomb county, defendant filed a motion to dismiss. This was too late.
In Johnson v. Burke, 167 Mich. 349, plaintiff was a resident of Gratiot county and defendant a resi dent of Muskegon, which fact first appeared at the trial. The case was being tried in Ingham county. The court said:
“After a defendant in a transitory action has pleaded in bar of the action, and thus submitted himself to the jurisdiction of a court of general jurisdiction, he must be held to have waived the question of jurisdiction of the person.”
See, also, Morgan v. Hoey, 209 Mich. 655; Ovavez v. Patron’s Mutual Fire Ins. Co., 233 Mich. 305.
The clause in the policy as to notice reads,
“Upon receipt of due proof of such disability before the expiration of one year from the date of its. commencement. ’ ’
Appellant claims that the insured did not submit due proof of disability in accordance with the requirements of this provision. The insured testified that he mailed a letter to the defendant’s New York office in February, 1936, stating that he was sick; that X-rays had been taken; that .he had been informed he had tuberculosis, and that he requested the defendant to pay the insurance due under the policy. A denial of the receipt of such a letter was made by defendant’s attorney, but no testimony was introduced to show that the letter had not been received. It is contended that the letter, even if mailed, was not due notice, as it did not show that the disability occurred before August 1, 1935. .However, the due notice clause gives the insured one year from the date of commencement of the disability to submit the “due proof.” This satisfies us that the notice comes within the clause. There is testimony of mailing the letter containing the necessary information to the New York office, which is met merely by a denial by defendant’s attorney, not under oath, that it was received. Under these cir cumstances, we cannot say that the court’s finding that due notice was given is against the preponderance of the evidence.
It is claimed by defendant on this general appeal that the trial court erred in granting plaintiff’s motion for a new trial before any decision was rendered in the case. It is the rule of this court that an unconditional order granting a new trial may not be reviewed on writ of error. Decker v. Fair, 222 Mich. 507; Mifflinburg Bank v. Bickhart, 224 Mich. 98; Terzian v. Gordon, 229 Mich. 296. The same rule applies to general appeals under the present practice and we cannot review the court’s unconditional order granting the new trial.
Defendant contends that the trial court’s finding that the insured was totally and permanently disabled within the meaning of the policy prior to August 1, 1935, is contrary to the law and to the great weight of the evidence. It is admitted that the insured did some work for the Coffee Company until the month of November, 1935. But the mere fact that an insured carried on his work to some extent after a certain date does not, under the usual legal definition of total and permanent disability, conclusively indicate that he was not permanently and totally disabled as of that date. See Turner v. Fidelity & Casualty Co. of New York, 112 Mich. 425 (38 L. R. A. 529, 67 Am. St. Rep. 428); Hohn v. Inter-State Casualty Co., 115 Mich. 79; Hallock v. Income Guaranty Co., 270 Mich. 448. In Young v. Travelers Ins. Co., 80 Me. 244 (13 Atl. 896), which was quoted by this court in the Hohn Case, it was said:
“We think the presiding justice might have gone further in the construction of this clause of the policy, and instructed the jury that, to entitle the plaintiff to recover, he was not required to prove that his injury disabled him to such an extent that he had no physical ability to do what was necessary to be done in the prosecution of his business, but that it was sufficient if he satisfied them that his injury was of such a character and to such an extent that common care and prudence required him to desist from his labors, and rest, so long as it was reasonably necessary to effectuate a speedy cure,— so that a competent and skillful physician called to treat him would direct him to do so.”
To prove the fact of disablement, plaintiff’s witness, Dr. Derby, testified that the hospital records and X-rays showed that the insured had tuberculosis and should have been hospitalized in the early part of 1935; that he was in no condition to work and was disabled, and the fact that he worked until November would have no bearing on the fact that he was disabled prior to August 1, 1935.
The declaration alleges the disablement as of November 1, 1935, but the trial court found and the proofs show that the disablement occurred prior to August 1, 1935. . The variance is one that can be cured by amendment, and it will now be regarded as amended in accordance with the rule of Scendar v. Winona Copper Co., 169 Mich. 665; Hallock v. Income Guaranty Co., supra, and authorities cited therein.
After careful review of the record and examination of the errors alleged, we find no reason for disturbing the judgment entered by the trial court, and it is, therefore, affirmed, with costs to plaintiff.
Bushnell, C. J., and Sharpe, North, McAllister, Wiest, and Butzel, JJ., concurred. The late Justice Potter took no part in this decision. | [
-11,
-9,
-36,
54,
48,
-16,
8,
-20,
23,
8,
-6,
33,
76,
35,
6,
8,
6,
7,
-2,
47,
7,
-19,
11,
-1,
-10,
-40,
-9,
-22,
-8,
29,
-3,
0,
-14,
-17,
-45,
20,
-6,
-22,
-19,
-7,
30,
-55,
36,
49,
-46,
-20,
-4,
-5,
37,
7,
53,
5,
-37,
22,
-26,
14,
3,
20,
-13,
15,
-53,
10,
90,
-42,
43,
1,
10,
21,
3,
-10,
-17,
-5,
2,
-23,
-24,
-37,
-11,
-13,
-34,
-21,
-33,
-34,
-3,
-10,
-53,
50,
-10,
34,
33,
15,
-29,
-35,
-7,
-5,
-34,
15,
-52,
42,
18,
-1,
17,
-36,
-22,
13,
36,
28,
18,
15,
-24,
17,
-7,
15,
23,
12,
28,
-10,
-9,
6,
52,
35,
18,
-62,
3,
-24,
-7,
5,
-26,
17,
18,
56,
-3,
39,
4,
42,
-20,
12,
4,
-9,
6,
-48,
-1,
-4,
-43,
-6,
-14,
27,
-36,
25,
-17,
-13,
-11,
35,
48,
16,
-52,
38,
63,
-41,
38,
-53,
-11,
-51,
-15,
55,
-15,
-24,
-14,
53,
22,
-5,
27,
-58,
-26,
-45,
-36,
65,
48,
-50,
18,
49,
-76,
0,
-29,
-25,
35,
-91,
12,
-18,
28,
22,
34,
-31,
-40,
21,
-4,
29,
-7,
18,
-1,
-41,
11,
-26,
30,
11,
26,
25,
10,
29,
-22,
31,
-26,
-32,
63,
-59,
-17,
14,
21,
-17,
-17,
-36,
-21,
35,
22,
-2,
-37,
-46,
-8,
7,
-17,
-23,
-31,
25,
22,
54,
-43,
24,
-6,
0,
23,
37,
12,
28,
-7,
-17,
-29,
-2,
-11,
-4,
11,
20,
14,
11,
-78,
10,
-11,
-32,
-6,
9,
1,
-26,
-2,
25,
-77,
-23,
63,
-16,
32,
-15,
23,
9,
-32,
-25,
56,
-25,
-41,
-60,
-1,
6,
44,
-32,
45,
20,
-15,
-19,
-27,
-15,
0,
-37,
-20,
0,
41,
-33,
23,
-15,
65,
8,
-4,
1,
7,
34,
8,
33,
-58,
-17,
-27,
-2,
-36,
-20,
-3,
3,
-15,
-4,
51,
-86,
44,
-73,
-21,
-9,
-18,
-28,
-31,
50,
-37,
10,
38,
-38,
4,
-9,
-9,
16,
-39,
2,
14,
15,
2,
-24,
-8,
15,
7,
-19,
22,
40,
13,
3,
-18,
0,
21,
-49,
3,
-15,
5,
33,
49,
-19,
-13,
79,
16,
-38,
-27,
63,
13,
-69,
-8,
26,
15,
32,
25,
24,
6,
41,
-35,
18,
-13,
-32,
-16,
-6,
-4,
7,
-21,
28,
45,
30,
14,
13,
-21,
28,
-22,
-16,
-25,
-7,
-55,
0,
45,
58,
-10,
20,
-21,
15,
-12,
31,
-20,
17,
-31,
35,
-15,
-20,
8,
4,
-45,
36,
-2,
2,
-26,
-29,
-11,
0,
75,
3,
-40,
4,
66,
12,
3,
-46,
-6,
-34,
12,
26,
-10,
3,
-9,
-44,
-10,
-15,
-12,
9,
-45,
-3,
-6,
34,
-2,
8,
-41,
-47,
2,
21,
-21,
25,
33,
-17,
-17,
22,
16,
27,
-24,
-4,
-13,
3,
-8,
-44,
-45,
-32,
-15,
33,
-3,
7,
-20,
7,
33,
-21,
-19,
2,
15,
-22,
-22,
-1,
-15,
-29,
-8,
14,
-17,
24,
-1,
12,
-21,
-34,
-6,
20,
-47,
35,
46,
-54,
28,
-9,
14,
27,
-38,
28,
-28,
-53,
24,
4,
-22,
-6,
22,
-34,
24,
-41,
-10,
-9,
-51,
1,
-21,
0,
40,
12,
5,
-15,
-18,
6,
26,
31,
-41,
5,
-3,
-26,
15,
30,
41,
-66,
49,
-46,
30,
-13,
-33,
3,
0,
11,
-69,
-58,
-35,
52,
-4,
12,
-30,
-38,
2,
22,
49,
-27,
2,
-54,
10,
0,
29,
-33,
11,
-4,
19,
-7,
-1,
6,
43,
9,
-26,
23,
-9,
18,
43,
-48,
-56,
-16,
-20,
-3,
-18,
10,
-6,
-27,
-32,
1,
-12,
3,
67,
-39,
-49,
23,
14,
37,
-11,
-10,
-22,
11,
2,
-25,
3,
-16,
26,
-18,
6,
2,
53,
-1,
-23,
-40,
0,
-45,
-24,
-39,
47,
-27,
-16,
44,
-12,
-27,
10,
-32,
15,
20,
17,
40,
6,
58,
35,
10,
-22,
31,
1,
-68,
28,
17,
73,
-13,
-3,
-40,
41,
20,
41,
69,
-24,
-10,
-21,
6,
45,
22,
-71,
-9,
46,
-35,
-48,
-35,
-14,
21,
-45,
-14,
-3,
-22,
-23,
2,
-20,
-6,
-53,
2,
-28,
-4,
23,
19,
19,
-16,
-15,
17,
39,
-31,
15,
29,
39,
5,
-25,
7,
-19,
36,
-53,
2,
32,
41,
-8,
32,
0,
6,
25,
-81,
-8,
27,
-22,
-2,
21,
-12,
25,
0,
11,
3,
-50,
3,
-17,
21,
-49,
45,
-10,
-36,
-20,
0,
32,
3,
16,
-19,
9,
11,
-6,
-44,
12,
-15,
-38,
-22,
23,
12,
9,
45,
45,
36,
-15,
-9,
5,
5,
-35,
-26,
-10,
11,
31,
-18,
2,
17,
31,
-23,
50,
37,
-20,
-13,
-7,
-30,
49,
50,
-60,
6,
-17,
14,
0,
1,
-10,
39,
19,
-1,
3,
-2,
-1,
-7,
-14,
53,
-21,
12,
3,
-24,
5,
18,
-28,
-28,
-35,
16,
65,
-13,
-48,
0,
37,
5,
19,
13,
-18,
-22,
32,
-24,
-1,
7,
-100,
-16,
33,
-30,
-10,
11,
71,
-31,
35,
-9,
4,
36,
6,
35,
8,
11,
44,
-21,
9,
-74,
-36,
-6,
44,
26,
-16,
23,
-6,
-4,
-23,
13,
-32,
26,
-16,
-14,
0,
-54,
-56,
12,
14,
-5,
-36,
13,
7,
28,
-46,
48,
32,
-8,
-48,
-36,
-1,
2,
-37,
25,
33,
-24,
-6,
10,
18,
-29,
-5,
-45,
8,
7,
-43,
-22,
8,
-66,
-12,
30,
34,
34,
-25,
10,
13,
19,
-53,
15,
-7,
-8,
-38,
29,
41,
-32,
-10,
42,
-22,
-44,
54,
-57,
-4,
-45,
-12,
25,
-37,
26,
28,
-8,
-6,
10,
-7,
-13,
-9,
-33,
20,
-7,
-28,
43,
45,
-44,
28,
-12,
24,
-18,
1,
15,
27,
-50,
-13,
7,
-3,
-19,
12,
9,
-14,
17,
42,
42,
16,
4,
-2,
-25,
5,
-29,
0,
14,
2,
49,
-4,
12,
30,
6,
11,
48,
87,
-27,
27,
-75,
1,
67,
14,
25,
-20,
-32,
-47,
-21,
0,
-30,
-10,
7,
-14,
-1,
29,
21,
2,
-11,
-1,
10,
6,
42,
-30,
57,
-36,
14,
26,
-30,
2,
-7,
-13,
-15,
40,
-6,
5,
-21,
-16,
-25,
26,
10,
35,
24,
-9,
-21,
-27,
38,
-23,
-10,
-10,
-16,
-15,
14,
34,
22,
-3,
27,
57,
10,
2,
9,
8,
-4,
12,
5,
12,
63,
31,
-25,
12,
-13,
22,
39,
23,
17,
4,
-53,
13,
47,
-22,
-33,
0,
-21,
50,
42,
17,
-3
] |
Sharpe, J.
February 6, 1940, plaintiff filed a bill of complaint in the circuit court of Wayne county in which it is alleged that on the 11th day of July, 1938, defendant recovered judgment against plaintiff herein in the sum of $2,092 in the circuit court of Wayne county; that said judgment was recovered under the money provision contained in a decree of divorce entered in Washtenaw county on August 16, 1929; that plaintiff herein filed a petition in bankruptcy for the discharge of all of his debts including the above-mentioned judgment; that on the 5th day of February, 1940, plaintiff received his discharge in bankruptcy; that the judgment is a debt that is dischargeable in bankruptcy; that during the pendency of the bankruptcy proceedings, the defendant herein caused to be issued a writ of garnishment on said judgment at law addressed to the Motor Products Corporation, in consequence of which the wages of plaintiff are withheld by said garnishee defendant. The bill prayed for the issuance of a temporary and permanent injunction or restraining order restraining defendant during the pendency of the suit from taking any steps or proceedings to enforce collection of the judgment. On February 6, 1940, the trial court issued an ex parte order restraining defendant from taking further steps to enforce collection of her judgment pending the suit.
February 8, 1940, the defendant through her attorney entered a special appearance for the purpose of “dismissing the restraining order and dismissing the bill of complaint issued in the above-entitled cause.” At the same time defendant filed a motion for the dismissal of the restraining order and bill of complaint in which it is alleged that the injunction or restraining order was issued in violation of and contrary to 3 Comp. Laws 1929, § 14352 (Stat. Ann. § 27.1120), which requires the plaintiff to file a bond equal to the full amount of the judgment which shall be first deposited by the party applying for such injunction or restraining order.
On February 9, 1940, the trial court denied defendant’s motion. The reason given by the- trial court in denying the motion to vacate the temporary restraining order was that plaintiff’s discharge in bankruptcy discharged the judgment.
Defendant appeals after leave granted from the denial- of- her motion to dismiss the -injunction and contends that the action instituted by plaintiff, is one to stay proceedings at. law and comes within the purview of 3 Comp. Laws 1929, § 14352, which reads as follows: “No injunction shall issue to stay proceedings at law in any personal action, after judgment, unless: 1. A sum of money equal to the full amount of such judgment, including costs shall be first deposited by the party applying for such injunction, or a bond in lieu thereof be given as hereinafter directed; and, 2. Unless such party, in addition to such deposit or bond in lieu thereof, shall also execute a bond with one or more sufficient sureties, to the plaintiff in such judgment, in such sum as the circuit judge or officer allowing the injunction shall direct, conditioned for the payment to the said plaintiff, or his legal representatives, of all such damages, and costs, as may be awarded to them by the court, at the final hearing of the cause. ’ ’ And that an injunction issued without requiring such bond is a nullity.
It is urged by plaintiff that a bond was not necessary to restrain the collection of a judgment which had been discharged in bankruptcy; and that the defendant could not question the validity of the restraining order and ask that the bill of complaint be dismissed without having filed a general appearance.
In deciding this cause we have in mind that the circuit court in chancery, upon the filing of the bill of complaint, had jurisdiction of the cause and authority to issue a temporary restraining order; that when defendant entered a special appearance and filed a motion for the dismissal of the restraining order and bill of complaint, it did not constitute a general appearance, see Woodliff v. Baker, 279 Mich. 356; .and that no service of process was made upon the .defendant. We also have in mind that defendant’’!? appeal is only from the denial'of her motion to dismiss the restraining order.
In our opinion the only question requiring decision is the validity of the restraining order. In Siegmeyer v. Small, 254 Mich. 679, we held that the validity of a preliminary restraining order was properly raised hy defendant appearing specially and moving to dismiss such order.
In Gross v. Kellner, 242 Mich. 656, this court said :
“By injunction the circuit court stayed all proceedings in the action at law and should have required plaintiff to give bond. The statute (3 Comp. Laws 1915, § 12664 [3 Comp. Laws 1929, § 14352 (Stat. Ann. § 27.1120)]) requires a bond be given, except in case of actual fraud. 3 Comp. Laws 1915, §12670 (3 Comp. Laws 1929, §14358 [Stat. Ann. §27.1126]).
“In the particular mentioned the bill does not allege actual fraud and the circuit court is directed to require that a bond be given or, in default thereof, dissolve the stay.”
See, also, Hinkle v. Baldwin, 93 Mich. 422; Wayne Colorplate Co. v. Wayne Circuit Judge, 253 Mich. 666.
In 3 Searl, Michigan Practice, § 1164, p. 146, it is said:
“The rule to be gathered from all these cases (arising under 3 Comp. Laws 1929, §§ 14350-14355 [Stat. Ann. §§ 27.1118-27.1123]), is that the failure to file a bond in cases not coming within the exception where bond may be dispensed with, does not divest the court of jurisdiction but is a ground for dissolution of a preliminary injunction and that, where the question is raised, the court may permit the filing of such bond within a reasonable time.”
Under the statute and the eases cited, the requirement of a bond for a preliminary injunction is clearly mandatory except in cases of actual fraud. In the case at bar, the bill of complaint does not allege fraud.
The order of the trial court is reversed, with costs to defendant.
Btjshnell, C. J., and Boyles, Chandler, North, McAllister, Wiest, and Butzel, JJ., concurred. | [
-72,
36,
-5,
72,
-13,
7,
34,
13,
-6,
8,
-8,
-18,
-26,
-10,
-29,
-6,
-14,
-18,
4,
38,
-5,
-2,
6,
19,
5,
29,
-32,
-46,
5,
-27,
-31,
-50,
-28,
55,
-51,
-60,
38,
-17,
34,
13,
-39,
-35,
19,
43,
-19,
-27,
18,
16,
-8,
-60,
10,
-29,
-13,
-14,
-56,
2,
-16,
-31,
5,
2,
-26,
17,
25,
-11,
-30,
0,
16,
46,
9,
6,
12,
-19,
21,
2,
-19,
22,
-35,
-9,
1,
-4,
3,
-26,
-23,
32,
-17,
-25,
12,
29,
-7,
19,
-32,
79,
-87,
-17,
32,
-38,
-11,
-20,
36,
-14,
0,
13,
20,
29,
45,
5,
21,
-35,
-46,
-6,
41,
-15,
48,
17,
-3,
-51,
-7,
7,
52,
4,
60,
-4,
-1,
-46,
0,
33,
-9,
-28,
39,
45,
13,
1,
18,
10,
29,
-29,
17,
-28,
-16,
-36,
52,
-28,
17,
-51,
13,
23,
28,
-22,
34,
7,
-67,
42,
18,
68,
19,
20,
36,
-18,
-18,
-2,
57,
11,
28,
-31,
-30,
-50,
0,
73,
21,
-14,
7,
25,
-32,
3,
-10,
21,
-54,
-4,
-19,
3,
0,
8,
-20,
-11,
29,
0,
0,
-2,
-27,
28,
5,
-12,
27,
31,
-28,
41,
42,
12,
5,
18,
14,
-31,
-19,
-23,
-11,
-37,
44,
5,
1,
11,
-37,
0,
-1,
-36,
-19,
-17,
-5,
-20,
-13,
37,
30,
21,
0,
73,
-21,
-34,
36,
-48,
-9,
-12,
19,
19,
-44,
57,
-29,
-5,
14,
44,
41,
7,
-65,
38,
19,
2,
-38,
3,
-46,
-5,
-43,
-24,
-21,
12,
-26,
4,
-27,
-37,
-37,
-44,
-1,
18,
7,
45,
-38,
21,
-30,
3,
-2,
1,
18,
-50,
-1,
-4,
39,
7,
38,
-35,
-16,
9,
0,
7,
-32,
-30,
-64,
-9,
7,
6,
38,
-38,
-3,
-5,
-32,
-23,
-35,
14,
-21,
47,
-8,
-33,
2,
48,
-39,
-33,
-11,
7,
-30,
11,
-26,
-25,
-40,
-17,
-14,
27,
25,
-22,
50,
-15,
13,
41,
-14,
-23,
47,
48,
-37,
17,
-8,
-14,
-14,
16,
-1,
9,
-60,
-8,
-1,
-23,
14,
-10,
24,
-12,
-32,
12,
15,
9,
0,
34,
-16,
8,
47,
36,
-15,
50,
-35,
16,
-26,
27,
0,
-21,
4,
-28,
-38,
52,
-6,
-7,
-9,
-22,
45,
-13,
-11,
-17,
-26,
56,
15,
4,
-10,
-21,
-38,
12,
-31,
-3,
4,
41,
-10,
-33,
53,
77,
11,
7,
-13,
-34,
15,
8,
-27,
14,
15,
-18,
-16,
14,
32,
-29,
-22,
61,
-32,
26,
-12,
24,
-4,
4,
2,
14,
18,
42,
12,
-25,
18,
19,
-21,
18,
32,
10,
48,
-42,
8,
29,
1,
0,
-6,
-8,
16,
-44,
14,
34,
27,
56,
24,
1,
49,
16,
-25,
-11,
-15,
-10,
20,
0,
28,
-7,
-17,
-15,
-10,
-19,
6,
2,
0,
-35,
36,
-1,
3,
10,
19,
-9,
-35,
-10,
66,
-81,
-67,
53,
-35,
-13,
-12,
14,
16,
7,
-6,
-26,
-43,
-25,
10,
-11,
6,
-11,
9,
27,
-36,
49,
47,
-2,
1,
21,
7,
-31,
18,
-4,
-3,
-38,
5,
35,
18,
-37,
-55,
-9,
-31,
13,
-17,
58,
16,
30,
14,
29,
-5,
-10,
0,
59,
6,
-22,
2,
42,
8,
-20,
20,
35,
18,
29,
41,
20,
-23,
14,
-14,
23,
-14,
-46,
17,
11,
-11,
5,
21,
-34,
4,
82,
-23,
-13,
-11,
-38,
-15,
21,
12,
15,
34,
-18,
-60,
11,
4,
3,
-43,
-42,
37,
0,
3,
-9,
-20,
-7,
21,
-20,
26,
-56,
30,
-2,
10,
-19,
0,
-49,
-2,
-10,
14,
51,
18,
-9,
-11,
13,
-19,
-53,
-6,
-46,
1,
3,
-23,
-22,
13,
-22,
4,
10,
-10,
9,
30,
-59,
20,
3,
8,
-44,
-24,
15,
34,
25,
-1,
-7,
31,
-11,
-25,
-22,
5,
7,
19,
-8,
54,
5,
-40,
-29,
24,
2,
-1,
7,
-56,
23,
29,
-4,
21,
33,
55,
-7,
17,
-25,
-28,
4,
-6,
0,
22,
31,
-20,
37,
-9,
36,
23,
-22,
-51,
16,
16,
8,
-10,
-3,
-63,
-46,
-26,
0,
-9,
50,
-4,
13,
12,
-31,
92,
-36,
60,
-54,
-15,
-21,
-19,
16,
-14,
0,
10,
33,
-20,
8,
22,
-23,
19,
-28,
-24,
-14,
-20,
17,
34,
-25,
2,
-15,
-5,
13,
-53,
-7,
19,
23,
21,
-5,
-3,
-13,
-45,
-8,
-20,
-8,
22,
37,
2,
-8,
18,
-5,
0,
-19,
-41,
-14,
-8,
41,
19,
-1,
-27,
12,
-21,
-14,
18,
46,
67,
-20,
-21,
-10,
-3,
-8,
-35,
-41,
10,
12,
0,
-56,
-5,
-39,
36,
28,
-19,
8,
-35,
35,
-32,
0,
-60,
-28,
54,
10,
2,
-10,
-30,
-20,
-19,
10,
18,
-17,
40,
1,
25,
8,
4,
-10,
41,
-40,
-42,
18,
-4,
-27,
-1,
-1,
-23,
40,
27,
-24,
16,
-17,
-33,
21,
-11,
-30,
-5,
10,
-30,
-14,
-6,
-47,
-3,
-34,
12,
-56,
13,
-51,
47,
-6,
20,
0,
20,
-72,
-41,
-55,
29,
17,
46,
-40,
-21,
11,
13,
14,
29,
0,
21,
19,
-12,
9,
-4,
6,
0,
46,
-3,
-39,
-16,
34,
-66,
7,
-30,
-32,
-23,
22,
-33,
7,
-13,
6,
-47,
-46,
-13,
16,
35,
-45,
-12,
27,
-14,
-15,
63,
23,
-17,
14,
-19,
-47,
-16,
14,
-2,
35,
7,
-8,
7,
-1,
12,
-36,
-13,
25,
-18,
31,
9,
-26,
-37,
-37,
50,
14,
-7,
-72,
52,
2,
-63,
-48,
60,
12,
4,
0,
-6,
54,
3,
16,
52,
-20,
-3,
3,
-14,
1,
-9,
10,
-26,
19,
30,
-18,
-24,
5,
13,
60,
0,
-3,
14,
16,
2,
-57,
-3,
-50,
23,
-20,
35,
-35,
-2,
-31,
28,
34,
-6,
23,
-3,
-2,
-13,
7,
-7,
10,
14,
-3,
2,
-49,
-3,
-10,
15,
-31,
4,
20,
-4,
41,
-14,
23,
22,
-21,
-33,
-19,
-19,
-12,
19,
-49,
82,
22,
-32,
-55,
-2,
-22,
23,
17,
24,
7,
-39,
23,
-17,
-55,
32,
-1,
-61,
-33,
22,
-18,
31,
-9,
-4,
24,
8,
-25,
-27,
24,
25,
21,
-19,
-14,
-20,
12,
6,
-12,
-49,
0,
76,
8,
11,
4,
6,
-17,
47,
28,
21,
-20,
10,
-1,
-48,
-10,
55,
6,
-3,
33,
-17,
26,
41,
-10,
-24,
52,
13,
13,
23,
26,
56,
-28,
-26,
13,
-8,
41,
-1,
26,
23,
24,
-5,
10,
-33,
-5,
-45,
-19,
26,
26,
-10,
35
] |
Sharpe, J.
George L. Nadell & Company, Inc., a Michigan corporation authorized and licensed to deal in securities, became financially involved and proceedings were instituted in the circuit court of Ingham county for the appointment of a receiver to liquidate its assets and satisfy the claims of its creditors.
Leonard Horton, as assignee of Julius Berman, filed his claim seeking the return of 3,000 shares of the capital stock of the American Malting Company which appellant contends were loaned to the Nadell corporation.
Appellant claims that while the Nadell corporation was engaged in business in the city of Detroit, Julius Berman made the original loan of the stock with the understanding that the stock would be returned to him within a few days, but before the stock was returned the receivership proceedings were in- . stituted; that at the time of the making of the loan, the Nadell corporation was in serious financial difficulties; that George L. Nadell was substantially the owner of all the stock of the Nadell corporation and was in principal charge of the business; that George L. Nadell determined that the portfolio of the corporation was short 3,000 shares American Malting Company stock and 85 shares of Ekhardt & Becker Brewing Company stock and arranged with Julius Berman for the loan to the corporation of the required stock; and that the stock was to have been returned within a few days and the Ekhardt & Becker Brewing Company stock was so returned.
The trial court determined that the loan of the stock in question was a loan made to George L. Nadell individually and disallowed the claim against the corporation.
The only question of fact involved is to determine whether the stock was loaned to the corporation or George L. Nadell individually.
The testimony of Berman in substance is that he loaned the stock to the corporation. This testimony is fortified by the receipt taken at the time of the loan. The receipt upon its face shows that the stock was loaned to the corporation. Opposed to this testimony is the testimony of George L. Nadell who stated that the stock was loaned to him personally; and that he and his brother personally deeded property to trustees for the benefit of Mr. Berman and Mr. Smokier and four or five creditors to secure them for any partnership indebtedness. The testimony in this case is conflicting, with one side being supported by a writing which is not denied except by a flat statement that the agreement is not as the writing and a witness says it is.
We hear chancery cases de novo. Petz v. Gaines, 286 Mich. 450. It is our duty to weigh all the evidence and to reach an independent conclusion. Hawthorne v. Dunn, 210 Mich. 176. We recognize that in disputed questions of fact, the trial court has an advantage in being able to observe personally the conduct of the witnesses. Such observations are oftentimes of value in giving some weight to the findings of the trial court, Metropolitan Life Ins. Co. v. Stewart, 280 Mich. 24, but in such cases the finding of facts by the lower court is not controlling. Snider v. Schaffer, 276 Mich. 92.
In Langdell v. Langdell, 285 Mich. 268, we said:
“We hear chancery cases de novo; but we do not, and should not, reverse decrees unless we are persuaded they are not in accordance with the just rights of the parties. ’ ’
In the case at bar, there was competent testimony to support the finding of the trial judge and we cannot upon this question of fact hold that the weight of evidence is contrary to the court’s finding that the stock was loaned to Nadell personally.
Claimant urges that if the stock certificates were loaned to Nadell and actually delivered to and retained by the corporation as a temporary loan to assist the borrower during a period of distress under arrangement whereby the borrower was to return the stock shortly thereafter, the relationship between claimant and the borrower of the stock is that of bailor and bailee for the benefit of the bailee. The record sustains a finding that the stock was not sold to Nadell, but was a loan.
George L. Nadell testified as follows:
“He loaned me the stock personally. * * * This was a personal transaction, not a company transaction.”
In 6 Am. Jur. pp. 140,141, it is said:
“In its broadest sense it (bailment) has been said to include any delivery of personal property in trust for a lawful purpose. * * * The term (bailment) may be said to import the delivery of personal property by one person to another in trust for a specific purpose, with a contract, express or implied, that the trust shall be faithfully executed and the property returned or duly accounted for when the special purpose is accomplished, or kept until the bailor reclaims it.”
In our opinion the effect of this transaction was a bailment for the sole benefit of the bailee. Under such circumstances it was the bailee’s duty to return the stock when the purpose of the bailment was completed. See 6 Am. Jur. p. 302; Dale v. See, 51 N. J. Law, 378 (18 Atl. 306, 5 L. R. A. 583,14 Am. St. Rep. 688).■
As to the purpose of the loan, we find the following testimony by Julius Berman:
“The Court: "Who called you up?
“A. George Nadell. He said he was in bad shape or needed some stock to straighten out the books and if he got 3,000 shares of American Malting Company and 85 shares of Ekhardt & Becker that would straighten them up. ’ ’
Under the above authority it would be the duty of the bailee to return the stock when the “books were straightened up.” But the record does not show whether it was the corporation books or partnership books that needed “straightening up,” nor does the record show that the purpose of the bailment has been fulfilled. In our opinion, claimant does not show a conversion by failure of the bailee to redeliver the stock at the completion of the bailment. We may not go outside of the printed record to find necessary evidence.
The decree of the trial court is affirmed, with costs to the receiver.
Btjshnell, C. J., and Potter, Chandler, North, McAllister, Wiest, and Btjtzel, JJ., concurred. | [
36,
0,
38,
-5,
28,
5,
-6,
-6,
2,
-1,
2,
-43,
25,
30,
34,
41,
30,
10,
30,
-3,
47,
-43,
-9,
10,
4,
-19,
-22,
-21,
18,
-32,
18,
-8,
-41,
-20,
-16,
29,
-62,
-20,
9,
-28,
-22,
34,
45,
24,
14,
28,
26,
-69,
45,
-40,
37,
-29,
-16,
11,
23,
-46,
-19,
16,
10,
3,
34,
-84,
63,
0,
28,
1,
-7,
50,
28,
4,
-39,
-4,
-33,
38,
8,
-39,
36,
25,
-56,
-28,
-15,
-23,
67,
8,
-44,
-5,
-30,
4,
-33,
34,
-25,
5,
-32,
-11,
-10,
0,
-20,
35,
23,
23,
5,
-13,
-17,
-22,
-30,
11,
58,
-32,
22,
10,
7,
-1,
-3,
-15,
-30,
10,
-20,
-12,
18,
26,
-22,
8,
-2,
22,
29,
20,
-20,
-11,
-33,
16,
-8,
20,
-55,
7,
12,
-10,
-8,
13,
-14,
31,
12,
38,
-21,
36,
-2,
3,
28,
28,
1,
-10,
-76,
5,
39,
40,
-16,
12,
56,
0,
44,
-85,
6,
-19,
-23,
-6,
4,
15,
9,
36,
-63,
26,
-14,
13,
-38,
12,
-20,
-3,
32,
-15,
-13,
16,
-36,
-10,
16,
5,
31,
5,
69,
0,
-9,
18,
47,
3,
12,
0,
-79,
51,
-5,
16,
-7,
13,
-17,
-44,
-45,
-35,
64,
8,
52,
25,
-37,
31,
-26,
-5,
22,
-37,
-45,
-2,
-16,
-43,
50,
-25,
46,
-42,
-77,
62,
-71,
-40,
16,
-23,
-36,
-28,
-30,
7,
29,
-12,
8,
6,
64,
4,
40,
19,
6,
-27,
-40,
-3,
-43,
-20,
-38,
-20,
-11,
2,
-22,
-25,
-32,
-32,
-2,
-16,
-81,
-6,
16,
3,
1,
68,
-92,
52,
-17,
1,
-38,
-12,
11,
22,
32,
-30,
44,
31,
-41,
-41,
-13,
22,
-25,
57,
23,
-34,
-22,
-5,
-1,
8,
-41,
14,
-45,
-33,
21,
74,
17,
-38,
98,
11,
-33,
-57,
22,
47,
-52,
30,
-44,
4,
-19,
-10,
-29,
-42,
12,
-41,
21,
-29,
-8,
-34,
23,
-31,
9,
24,
27,
-31,
14,
13,
3,
3,
22,
29,
32,
14,
26,
-12,
-21,
-35,
-14,
50,
-99,
-5,
45,
1,
28,
-2,
29,
28,
29,
41,
46,
-13,
-9,
-48,
-21,
1,
-49,
0,
36,
4,
-13,
25,
10,
26,
-12,
-1,
16,
-23,
-26,
37,
4,
-8,
-40,
-10,
54,
28,
27,
29,
-35,
-12,
27,
29,
-55,
-56,
-21,
39,
12,
15,
-4,
-15,
52,
-9,
9,
-7,
-30,
13,
-18,
36,
-16,
37,
-5,
-62,
22,
7,
-31,
19,
16,
-18,
-36,
-20,
22,
-49,
37,
-7,
-13,
-36,
1,
18,
16,
12,
-78,
-3,
21,
20,
0,
26,
24,
15,
-32,
-20,
41,
-61,
13,
30,
-35,
25,
-18,
36,
12,
-4,
1,
15,
-18,
20,
35,
2,
12,
-3,
-18,
15,
26,
-40,
-28,
11,
30,
33,
9,
56,
33,
29,
-41,
41,
29,
-38,
-10,
-32,
21,
-24,
3,
-12,
-7,
1,
27,
-15,
14,
36,
-16,
8,
40,
-55,
-35,
12,
5,
17,
-26,
26,
3,
-12,
-10,
-10,
-63,
-36,
-23,
-35,
-26,
-1,
32,
-11,
9,
29,
-31,
-2,
-1,
-5,
17,
-39,
-5,
-29,
5,
-25,
0,
28,
18,
-63,
-25,
-1,
18,
-25,
7,
29,
0,
23,
-40,
36,
22,
21,
27,
12,
-64,
23,
-31,
16,
44,
12,
14,
-31,
8,
-27,
5,
-29,
-14,
-23,
7,
30,
-18,
-29,
-23,
18,
-24,
22,
-21,
-11,
-49,
6,
-1,
-6,
31,
-14,
5,
-1,
29,
13,
-4,
26,
9,
-11,
-30,
49,
-4,
0,
31,
-22,
-34,
-13,
6,
-43,
-15,
48,
29,
22,
-2,
13,
30,
-16,
-25,
-28,
-11,
1,
18,
-46,
-3,
52,
1,
-16,
-40,
8,
-34,
-34,
-2,
-22,
52,
-31,
57,
7,
-15,
6,
-29,
1,
-4,
-35,
-44,
-51,
-27,
46,
-4,
-5,
23,
-9,
2,
19,
-15,
-13,
29,
2,
0,
6,
5,
16,
-51,
-39,
8,
23,
-36,
-32,
53,
10,
7,
-17,
-27,
20,
-40,
25,
-17,
-7,
-63,
9,
20,
7,
32,
-12,
35,
-72,
0,
19,
29,
11,
7,
0,
60,
42,
-16,
-43,
36,
-45,
49,
-50,
46,
13,
4,
32,
23,
-17,
31,
35,
32,
0,
6,
-6,
5,
-28,
42,
-3,
-23,
24,
10,
71,
-40,
28,
-1,
-13,
-13,
-9,
4,
24,
7,
-2,
33,
-28,
-31,
-11,
-65,
21,
-12,
1,
22,
-15,
1,
-40,
-6,
22,
0,
1,
-31,
13,
4,
24,
37,
-46,
27,
-39,
0,
40,
47,
17,
0,
-2,
0,
-13,
16,
-28,
47,
11,
8,
12,
-38,
0,
16,
-20,
-7,
31,
4,
32,
4,
-64,
-40,
-3,
24,
9,
31,
20,
-90,
14,
-51,
23,
13,
35,
-4,
40,
9,
38,
-24,
8,
14,
-14,
-52,
5,
-45,
19,
1,
-30,
-26,
29,
-34,
-56,
-15,
-13,
-85,
-7,
-56,
-50,
-53,
-17,
-2,
35,
7,
-15,
-1,
-63,
-33,
-20,
17,
-20,
69,
23,
50,
23,
-34,
-11,
26,
-41,
26,
12,
77,
29,
14,
-34,
-16,
-41,
3,
33,
-13,
-5,
17,
-38,
56,
10,
-23,
31,
45,
-2,
35,
7,
-44,
-31,
-40,
21,
-44,
-2,
-24,
5,
-8,
22,
-62,
39,
-45,
21,
9,
-23,
13,
-11,
-7,
-20,
60,
13,
10,
-55,
-35,
15,
-62,
10,
-10,
-41,
-18,
-19,
-50,
-7,
-18,
-17,
-15,
0,
-7,
-16,
24,
12,
1,
30,
12,
81,
9,
13,
-25,
-18,
24,
-24,
-27,
17,
-17,
45,
58,
49,
-46,
-5,
-31,
-5,
14,
13,
35,
-27,
31,
-3,
-7,
57,
4,
4,
31,
22,
-32,
-22,
-36,
-8,
13,
-25,
10,
-22,
-2,
-14,
-26,
-7,
-8,
52,
0,
37,
14,
-22,
-11,
4,
-18,
-34,
23,
25,
-36,
12,
20,
34,
80,
-7,
9,
9,
-27,
9,
8,
-8,
-26,
21,
-8,
14,
29,
49,
-25,
-2,
5,
-21,
-30,
-13,
22,
22,
-11,
48,
-2,
4,
-17,
-8,
-34,
-17,
-33,
12,
9,
-26,
-10,
36,
-16,
48,
-37,
24,
-16,
-16,
22,
19,
-17,
30,
18,
-56,
-10,
-20,
4,
-82,
0,
0,
1,
14,
-49,
-46,
-20,
16,
4,
-7,
42,
-26,
-21,
56,
50,
-40,
9,
11,
-32,
46,
22,
-24,
-4,
35,
37,
60,
7,
17,
29,
24,
73,
-47,
-24,
3,
51,
-30,
-18,
27,
35,
-1,
-4,
-10,
23,
30,
-43,
5,
-7,
18,
4,
-19,
-4,
-21,
-26,
52
] |
Toy, J.
On May 1, 1928, the plaintiff, Calaveras Timber Company, a Michigan corporation (hereinafter for convenience of expression called the timber company), executed and delivered to the Michigan Trust Company, the Detroit Trust Company and George C. Thomson, defendants herein, as trustees, a mortgage upon several thousand acres of timber land owned by the timber company in Calaveras county, California, for the purpose of securing its issue of bonds in the original principal sum of $2,217,000. Of these bonds there are now outstand ing- and unpaid the principal sum of $2,174,800. With, interest added, the mortgage debt, at the time of decision below, exceeded the sum of $2,700,000. There is an annual interest charge of approximately $130,000. The taxes have been paid up to and including April, 1935. The mortgagor defaulted in the payment of interest due November 1, 1932, and subsequently; and such default continues.
The principal and interest of the bonds were unconditionally guaranteed by Charles F. Ruggles, now deceased, and John IT. Rademaker. A claim against the Ruggles estate, based upon this guaranty, was filed by the trustees and allowed as absolute, with the condition that payment of any of the bonds or interest coupons by the timber company would operate to discharge the claim pro tanto. All of the capital stock of the timber company, except qualifying* shares, is held by plaintiffs McPherson and Pfeiffer as trustees under the Ruggles will.
Article 7, § 4 of the trust indenture contains the following provision:
“In case an event of default * * * shall occur, the trustees, in their discretion, may, and upon being requested in writing by the holders of a majority in amount of the bonds then outstanding, and upon being indemnified to their satisfaction against costs and expenses which may be incurred by acting in pursuance of such request, shall, either after entry, as hereinbefore provided, or without such entry, proceed by legal process to enforce payment of the principal and interest due and owing upon the said bonds, and to foreclose this indenture and to sell the lands, timber and property hereby conveyed, under the judgment or decree of a court or courts of competent jurisdiction.”
Section 5 of the same article contained in the indenture provides:
“In case an event of default * * * shall occur, it shall be lawful for the trustees, upon receiving a request from the holders of the majority in amount of the bonds hereby secured and then outstanding, with or without exercising the power of entry herein provided for, to sell and dispose of all and singular the premises, property and assets included in this indenture, or intended so to be, or such portion thereof as the trustees may deem necessary, at public auction, under the provisions of the statutes of the State of California in such case made and provided, upon such terms as to credit, partial credit, or security for payment, as they may think proper or expedient, having first given public notice of the time and place of the sale, by advertisement as required by law in the case of foreclosure of mortgages upon real estate, and no other notice whatever to the said mortgagor shall be necessary.”
The section additionally provides that such sale, when made, shall be a perpetual bar both at law and in equity against the mortgagor.
After notice of foreclosure, under the power of sale contained in section- 5 had been given, this suit was commenced, seeking: to enjoin the trustees from exercising the power of sale provision of the trust indenture; an accounting of certain trust funds deposited with the trustee trust companies, wherein it is claimed that the trust companies made secret profits to themselves out of the trust funds; the removal of the mortgage trustees; and other relief unnecessary to be here related.
Trial was had below, followed by the decree of the chancellor enjoining the trustees from exercising the power of sale contained in the trust indenture and requiring* the defendant, Detroit Trust Company, to account for and pay over to the trust fund the sum of approximately $2,200, for profits which it secured in the sale of bonds to the trust fund. From tbe decree entered all parties hereto appeal.
The first question presented is whether we should enjoin the defendant trustees from foreclosing the mortgage under the power of sale contained therein.
Section 5, article 7 of the mortgage, hereinbefore quoted, expressly provides for foreclosure by the exercise of the “power of sale” therein contained. This is in accord with the statutes of the State of California. California Civil Code, § 2932. We will not, in the absence of fraud or irregularity, interfere with a statutory foreclosure. Moss v. Keary, 231 Mich. 295; Cameron v. Adams, 31 Mich. 426; Michigan Trust Co. v. Cody, 264 Mich. 258; Virginian Joint Stock Land Bank of Charleston v. Hudson, 266 Mich. 644.
Is there here any proof of fraud which would justify an interference with such statutory foreclosure*?
The trial judge held affirmatively. In his opinion he found:
“(a) That the manner in which the bondholders’ committee was selected and appointed as well as its personnel ;
‘ ‘ (b) That the action of the trustees in voting the bonds held and deposited by them in approval of the choice of foreclosure under the power of sale and as authorizing and approving the organization of the committee;
“(c) That attempting to hold a sale under the power in lieu of judicial foreclosure;
“(d) That failure to oppose the sale under the power when the right, being permissive, could not have been compelled;
“(e) That allowing the same counsel to represent the trustees and the bondholders’ committee;
“(f) That in using the bonds owned and deposited by the trustee to constitute a majority of the bondholders in furtherance of the procedure adopted, and
‘ ‘ (g) In failing to divorce their interest as bondholders from their duties and obligations as trustees constitutes constructive fraud upon the mortgagor justifying the interference of this court in permanently restraining the defendant trustees from proceeding with the foreclosure of the mortgage indenture under the power of sale.”
We shall proceed to analyze the record as it appears to us, using for reference, in our discussion, the opinion of the trial judge, as hereinbefore quoted, with its respective letter indices (a to g).
(a). The selection of the bondholders’ protective committee and its personnel.
The trial court in his opinion said of this phase of the matter:
“This committee is composed of men of standing in their respective communities,. all of whom axe versed in business and financial matters and some of whom are also experienced in one or more phases of the timber business. The record discloses, however, that these men were affiliated with the two trust companies either as officers, directors or stockholders, or by close financial or fiduciary relations. Three are clients of long' standing of counsel for one of the corporate trustees, and the father of one is a director and large stockholder therein. * * * The bondholders’ protective committee is competent in personnel, but its function is to speak for and represent the bondholders.”
Assuming, but not deciding, that the finding of the trial judge as above outlined, is correct, yet we find such determination to be of little, if any value upon which to base or construct fraud, for every action taken by the bondholders ’ committee, of which complaint is made, was later ratified by a majority of the bondholders.
(b), (f) and (g). The action of the trustees in voting bonds held, owned and deposited by them, in approving foreclosure under the power of sale contained in the mortgage, where such bonds constituted the balance of voting’ power.
The bonds outstanding on November 20, 1935 (the day of the bondholders’ meeting), were $2,174,800 in amount. Of these, the defendant trustees had deposits of $274,200, in par value thereof, held either by the trustees as owners or in their fiduciary capacity. At the meeting, when voting approval of the acts of the trustees in proceeding under the “power of sale” clause of the mortgage, the trustees voted the bonds held by them affirmatively for ratification of such determined method of foreclosure. Without such voting by the trustees, there was an insufficient amount of the bonds voted to sustain a majority.
It is strongly urged by plaintiffs, and determined by the trial judge, that the voting of the aforementioned bonds by the trustees, under the circumstances, is a breach of the fiduciary responsibilities of defendants and constitutes fraud, at least constructively.
In this stand we cannot concur, for again we find that the point in controversy has been determined by the trust indenture itself. There is contained in article 9 thereof the following unambiguous provision :
“Section 14. The trustees, or any of them, may acquire, sell, deal in and own bonds and coupons issued hereunder, with the same rights which they, lie or it would have if not trustees or trustee hereunder.” (Italics ours.)
The action of the trustees in voting the bonds held by them was in accordance with this provision of the mortgage indenture. Such action having been contemplated and permitted by the agreement of the parties contained in the trust indenture, plaintiffs (mortgagors) cannot now be heard to say that such conduct is a fraud upon them. Anderson v. Pennsylvania Hotel Co. (C. C. A.), 56 Fed. (2d) 980; In re Allied Owners Corp. (C. C. A.), 74 Fed. (2d) 201 (97 A. L. R. 360); Martin v. Rockford Trust Co., 281 Ill. App. 441.
Nor do we think that holding the sale under the “power” contained in the mortgage in lieu of judicial foreclosure (c), nor the failure to oppose such method of foreclosure (d), constitutes a fraud upon the mortgagor, for, as we have hereinbefore pointed out, such action was permissible by the very terms of the mortgage contract. We find no proof in the record of acts by defendant trustees, which constitute fraud, either actual or constructive, upon the mortgagor or the bondholders.
Plaintiffs urge that because foreclosure under the power of sale clause of the mortgage will result in a sale at a time when, by reason of the financial depression, real competitive bidding cannot be effected, and because such a foreclosure will result in a cutting off of any period of redemption and will result in the sale of the property without any upset price being fixed, and will result in the acquiring of the mortgaged premises by the depositing bondholders at a price less than they could obtain it for under judicial foreclosure, that equity should enjoin such a foreclosure as inequitable.
Harsh results may and often do obtain because of mortgage foreclosure sales, but we have never held that because thereof, such sale should be enjoined, when no showing of fraud or irregularity is made. In Smith v. Blach, 115 U. S. 308 (6 Sup. Ct. 50), the supreme court of the United States said: (p. 318)
‘ ‘But the fact of depression in value is no ground in itself for not upholding a sale under the trust deed, nor is a subsequent rise in value a ground for Setting aside the sale. Those who speculate in real estate on credit take the risk of depression in value at the time the credit expires, and those who buy for cash in time of depression are entitled to the benefit of a subsequent rise in value. ’ ’
In Michigan Trust Co. v. Dutmers, 265 Mich. 651, we said:
“Neither should the burden of loss owing to depreciation of real estate values be borne by the mortgagee. Michigan Trust Co. v. Cody, 264 Mich. 258.”
In Brennan v. American Trust Co., 3 Cal. (2d) 635 (45 Pac. [2d] 207), the court said:
“Neither legislation nor judicial decision in this State warrants interference with the normal course of a sale under a deed of trust conducted in compliance with the law and without fraud.”
The harsh consequences anticipated by plaintiffs, if they occur, will not result because of fraud upon the part of defendants, but rather from the terms of the mortgage indenture itself, which is the express agreement of the parties.
We find no reason to enjoin the intended foreclosure.
Plaintiffs seek an accounting from defendant trust companies for alleged secret profits made by them in the sale of securities and for alleged losses resulting from such transactions.
The mortgage provided that out of the proceeds of the sale of the timber company bonds there was to be deposited with the trust companies the sum of $733,590 which sum and the income therefrom was to be used for the payment of taxes assessed against the mortgaged premises and for the payment of interest upon the outstanding bonds. The indenture provided that such sum was to be divided equally between the two trust companies for such purpose. This was done. The indenture provided also that such funds were to be invested in “Libefty Bonds, U. S. Treasury Certificates, certificates of deposits, * * * or in such other investment securities as may be mutually agreed upon between the trust company and the mortgagor.”
These stated funds were invested by the trust companies in high grade Michigan mxmicipal bonds, most of which were purchased from or through the bond department of the defendant Detroit Trust Company, which company was at that time the largest dealer in Michigan municipal bonds. This trust company obtained commissions in amount over $2,000 on the sale of municipal bonds purchased for its one-half of the above stated fund and commissions in amount over $1,300 on bonds that it sold defendant Michigan Trust Company and which were paid for out of its one-half of such fund. Due to the depression and market decline some appreciable losses were sustained on the bonds so purchased as they were sold from time to time.
Plaintiffs seek an accounting of these profits obtained from the aforementioned commissions and also for the losses resultant from the subsequent sale of these bonds at a decreased price.
The court below disallowed all of such claims of plaintiff excepting that for commissions obtained by the Detroit Trust Company in the sale of municipal bonds paid for from its one-half of the allotted fund. Both appellants and cross-appellants here allege such determination to be erroneous. Appellants claim that they are not liable for any amount and cross-appellants contend that they should have full accounting for all such profits as well as for resultant losses as hereinbefore outlined.
We are in accord with the determination of the trial court, holding defendant Detroit Trust Company liable for the profits derived from the sale of securities by itself to the trust fund in its possession and under its control as trustee.
While the purchases of the particular bonds were made either at the direction or with the ratification of the mortgagor, nevertheless the secret profits derived by the defendant Detroit Trust Company were not so authorized. It should therefore account for them. Kelsey v. Detroit Trust Co., 265 Mich. 358; In re Culhane’s Estate, 269 Mich. 68; McNutt v. Dix, 83 Mich. 328 (10 L. R. A. 660).
We find no merit in plaintiffs’ claim for an accounting of the losses which accrued by reason of the decline in the values of the securities purchased for this tax and interest fund by defendant trust companies. The timber company either directed or approved each purchase and subsequent sale as they were made by the • respective trust companies and therefore cannot now be heard to complain. Lawrence v. First National Bank & Trust Co. of Kalamazoo, 266 Mich. 199.
It is unnecessary to discuss the other points raised, for with the exception of the accounting of secret profits by the Detroit Trust Company, as decreed by the court below, we find no proven g’rounds for equitable relief. The decree entered below will be modified to accord herewith. Costs to defendants.
North, C. J., and Fead, Wiest, Butzel, Bushnell and Sharpe, JJ., concurred. Potter, J., did not sit. | [
15,
43,
22,
-8,
23,
25,
2,
-3,
36,
-13,
8,
-14,
23,
7,
-8,
5,
-5,
34,
7,
57,
27,
-47,
-63,
-16,
0,
0,
38,
-11,
35,
2,
3,
11,
-2,
-1,
-3,
0,
-68,
-23,
27,
-13,
-2,
-4,
9,
-16,
10,
21,
0,
-60,
26,
-25,
14,
29,
16,
-1,
1,
23,
-9,
-22,
-32,
3,
39,
-74,
-12,
-2,
6,
-16,
-5,
85,
71,
-33,
14,
6,
5,
-1,
21,
-3,
-2,
0,
-31,
-23,
-20,
-43,
20,
7,
-12,
-54,
-35,
-8,
-41,
-4,
-45,
26,
-19,
29,
-9,
0,
-28,
49,
-4,
30,
28,
-35,
-20,
53,
41,
-30,
23,
-37,
-11,
-10,
26,
28,
-10,
31,
-16,
1,
-30,
7,
15,
-4,
-40,
-20,
32,
-21,
9,
30,
1,
37,
-16,
16,
26,
20,
-21,
-13,
9,
-26,
-20,
-39,
-23,
16,
21,
19,
-5,
26,
0,
4,
48,
-15,
20,
-25,
3,
52,
15,
57,
52,
21,
7,
26,
26,
-91,
27,
-30,
-2,
-5,
-55,
19,
-7,
11,
-48,
36,
15,
0,
-34,
-43,
-5,
-2,
35,
-9,
4,
-7,
-19,
-25,
21,
-4,
-22,
-27,
-24,
-18,
10,
24,
-8,
-19,
4,
-8,
-46,
38,
-13,
-7,
-33,
48,
-1,
-79,
27,
-2,
0,
-14,
29,
43,
4,
-19,
-15,
2,
8,
33,
-41,
30,
-55,
-34,
64,
-39,
5,
48,
-21,
-1,
6,
-11,
26,
-15,
16,
4,
-56,
13,
18,
-19,
-31,
1,
16,
-7,
33,
10,
-1,
-33,
-20,
-17,
-15,
-30,
-34,
-12,
-15,
20,
-73,
-7,
-19,
48,
-19,
19,
-23,
-29,
8,
-18,
-50,
-1,
-24,
30,
14,
-25,
-33,
29,
-6,
10,
-31,
-16,
27,
-12,
-25,
-35,
-9,
13,
-35,
-14,
2,
-31,
-21,
20,
-18,
38,
-16,
7,
-61,
-29,
21,
36,
42,
-46,
56,
1,
-21,
-52,
58,
31,
-15,
24,
-15,
7,
18,
41,
-3,
19,
-3,
-1,
-9,
-30,
-4,
-1,
30,
19,
31,
0,
-3,
-41,
10,
56,
-25,
19,
33,
56,
25,
-21,
-69,
61,
-51,
-24,
-18,
21,
-9,
26,
-4,
-33,
-44,
-21,
31,
67,
25,
47,
3,
16,
-1,
-14,
-51,
5,
-35,
-17,
-18,
-17,
-48,
5,
30,
15,
-11,
55,
17,
-7,
39,
34,
-24,
-13,
-48,
9,
27,
-6,
23,
52,
-18,
-25,
13,
12,
-68,
29,
-40,
1,
-11,
33,
41,
58,
44,
0,
-10,
-5,
-55,
-12,
-42,
7,
3,
40,
-15,
-41,
33,
-24,
-36,
-13,
-47,
56,
0,
-17,
-16,
-27,
26,
-40,
0,
-5,
18,
32,
31,
8,
-3,
-12,
34,
-2,
18,
28,
55,
-17,
-15,
-12,
38,
-65,
5,
28,
-39,
-7,
-19,
-13,
-1,
6,
34,
-1,
-35,
-30,
-11,
8,
53,
43,
22,
-26,
23,
-5,
22,
42,
73,
3,
-4,
-6,
-73,
23,
-52,
0,
49,
-13,
2,
-6,
28,
-22,
50,
15,
24,
2,
43,
5,
19,
6,
24,
7,
34,
-17,
-29,
-4,
50,
-32,
-25,
7,
-14,
7,
3,
-24,
-41,
2,
-18,
-33,
-1,
7,
61,
-15,
-6,
31,
-37,
33,
-73,
-28,
53,
57,
-12,
-10,
-48,
-9,
5,
-13,
16,
-3,
-40,
19,
-30,
-73,
26,
40,
-13,
46,
21,
-48,
11,
32,
-6,
44,
-46,
50,
3,
69,
15,
46,
53,
16,
21,
-32,
-5,
28,
-47,
41,
6,
-1,
-29,
-41,
9,
-5,
21,
30,
-29,
-23,
6,
-36,
10,
-11,
-62,
-35,
-26,
11,
11,
52,
-13,
-39,
3,
18,
-32,
26,
31,
-73,
-4,
-49,
-42,
24,
-21,
1,
6,
-8,
16,
29,
27,
19,
-34,
-7,
-25,
7,
-25,
-67,
-34,
-16,
-49,
24,
-5,
23,
-40,
7,
5,
41,
-8,
-55,
-64,
-5,
34,
38,
13,
3,
-62,
17,
-35,
0,
-17,
-60,
42,
8,
-4,
-4,
13,
-21,
39,
19,
45,
22,
21,
-19,
29,
39,
-36,
-19,
-42,
23,
64,
26,
-4,
33,
10,
55,
2,
-11,
-6,
30,
-26,
22,
24,
15,
-26,
-8,
-15,
-12,
-20,
-8,
-23,
-5,
-23,
-32,
7,
-33,
-13,
27,
23,
26,
-10,
-2,
-2,
19,
-4,
-28,
45,
-2,
-40,
15,
-3,
41,
-27,
33,
-3,
51,
11,
-39,
-28,
-24,
30,
-41,
-33,
54,
33,
-7,
0,
-19,
16,
-23,
-19,
-25,
7,
34,
2,
3,
46,
13,
-7,
12,
-29,
20,
23,
40,
7,
-36,
15,
52,
1,
39,
-40,
6,
-58,
42,
-6,
-3,
44,
-20,
18,
23,
-42,
21,
-11,
-18,
-16,
-50,
-30,
-52,
9,
-3,
62,
1,
59,
-20,
-25,
12,
-18,
9,
-35,
-3,
32,
-10,
16,
12,
-3,
0,
-6,
-25,
-19,
36,
-41,
26,
-1,
-2,
16,
-8,
16,
-25,
6,
26,
-14,
-81,
-73,
36,
-15,
5,
-30,
12,
-19,
53,
38,
33,
-25,
-29,
40,
-25,
-9,
42,
-43,
-10,
36,
-45,
16,
29,
30,
43,
36,
-12,
22,
-19,
-12,
-77,
30,
6,
27,
4,
-36,
-56,
18,
27,
-13,
16,
13,
22,
7,
-14,
-3,
40,
-43,
37,
1,
11,
6,
-22,
14,
21,
-37,
-54,
18,
-12,
-9,
12,
-29,
29,
-44,
29,
-24,
23,
2,
-55,
17,
20,
6,
9,
4,
-14,
20,
-24,
-21,
-25,
7,
-16,
23,
-6,
21,
-14,
-11,
-24,
-18,
-42,
-2,
-23,
-51,
-7,
-48,
-38,
7,
-11,
4,
9,
-21,
-39,
25,
22,
-25,
-21,
-14,
14,
-50,
4,
-37,
-21,
-20,
35,
-32,
-13,
-29,
5,
-16,
15,
-18,
-4,
28,
-6,
16,
-15,
-21,
16,
19,
6,
-19,
0,
-13,
5,
7,
39,
1,
-29,
4,
12,
19,
-9,
0,
-34,
-12,
12,
-27,
42,
-47,
-9,
-11,
31,
34,
24,
-7,
14,
-7,
-22,
-17,
18,
-65,
65,
9,
13,
2,
30,
21,
-62,
-81,
-33,
-42,
-20,
33,
59,
-30,
32,
-45,
11,
-35,
13,
-4,
-23,
3,
-47,
9,
-19,
30,
-3,
-4,
-11,
5,
-48,
36,
12,
-43,
-21,
19,
25,
60,
76,
-21,
-27,
-43,
15,
-5,
19,
-60,
-10,
13,
-13,
32,
20,
9,
17,
-9,
-37,
13,
-10,
12,
-36,
-26,
-3,
27,
-1,
9,
-2,
1,
2,
-45,
18,
-33,
-46,
51,
-9,
-11,
-20,
46,
20,
26,
-2,
0,
-38,
11,
-14,
-13,
-17,
14,
-40,
28,
25,
33,
-36,
38,
18,
-19,
-12,
-81,
-12,
18,
-4,
28,
54,
13,
42,
47,
22,
62,
13,
-25,
78
] |
Butzel, J.
Carl Kiburtz of Monroe, Michigan, in order to qualify as a dealer in securities in Michigan, executed a bond with defendant as surety, in compliance with (2 Comp. Laws 1929, § 9790), the blue sky law. He opened an office in Monroe where, as appeared from his printed stationery and a schedule of his liabilities, he engaged in the general business of buying, selling and trading in bonds, stocks, mortgages and farm loans.
• Plaintiff and his family had several transactions with Kiburtz as their broker, involving the purchase of bonds and mortgages. In August, 1931, plaintiff agreed to purchase a first mortgage of $1,800 on a Michigan farm from Kiburtz and in payment thereof delivered to him certain school bonds valued at $1,488.33 plus the sum of $311.67 in cash. The mortgage and note were thereupon assigned by Kiburtz to plaintiff, but the mortgage was not recorded until after the assignment to plaintiff. The latter did not examine the abstract given him with the mortgage but relied on Kiburtz’ statement that it was a first mortgage.
In the summer of 1932, plaintiff’s father discovered that Kiburtz had collected $1,000 on another mortgage sold by Kiburtz to plaintiff’s father, but that Kiburtz had only turned over $200, fraudulently withholding $800. At a conference between the parties, Kiburtz begged for an opportunity to make restitution at the rate of $50 per week and $500 was repaid. On discovering Kiburtz’ defalcation in this matter, plaintiff investigated his own mortgage purchased from Kiburtz and discovered for the first time that the latter had also defrauded him by representing the mortgage to be a first mortgage, when in fact it was a third mortgage. A receiver was subsequently appointed for Kiburtz on petition of the attorney general for the State of Michigan. Kiburtz was taken to an institution in Tpsilanti, Michigan, and died shortly after returning home. Plaintiff’s father also died but prior to his death, he assigned the $300 claim against Kiburtz and his surety to plaintiff.
Plaintiff brought the instant suit on the bond to recover the $1,800 plus interest and also the $300 plus interest. Proper tender of the worthless mortgage had been made to Kiburtz at the time of the conference. The declaration, though loosely drawn, contains sufficient allegations to support the judgment. The testimony shows beyond any question that Kiburtz misrepresented the mortgage to plaintiff; that Kiburtz dealt in mortgages as well as bonds and stocks; and that the mortgages as a rule were taken in Kiburtz’ name and assigned by him to the purchasers thereof. The receiver testified that the transaction with plaintiff was listed in Kiburtz ’ sales register which disclosed that Kiburtz made a profit of $250 in the transaction. In the statement of Kiburtz’ liabilities, there appear eig’ht other mortgage transactions in which it is claimed Kiburtz was guilty of defalcations. The case was tried without a jury and a judgment rendered for plaintiff for the entire amount claimed.
Defendant contends that plaintiff went to Kiburtz and requested the mortgage in question and therefore Kiburtz did not act as a broker. However, one does not cease to act as a broker solely for the reason that in a particular transaction the purchaser solicits him to procure the security for him. Zapf v. Ridenour, 198 Iowa, 1006 (200 N. W. 618). Kiburtz gave plaintiff the usual forms of brokers ’ confirmation in consummating the sale of the mortgage in question. The envelope in which Kiburtz placed the mortgage was one customarily used in brokerage transactions and in this instance was filled out in manner and form usually adapted to brokerage deals conducted by Kiburtz. ' In addition the plaintiff’s own uncontradieted testimony shows that Kiburtz acted in the capacity of broker in this transaction. We agree with the trial judge in holding that the sale was a brokerage transaction under the blue sky law.
Defendant, however, contends that the sale was not within the purview of the blue sky law because it was an isolated transaction on tlie theory that Kiburtz was selling a security which he owned in his own name. In Ross v. Couden, 22 Ohio App. 330 (154 N. E. 527, 529), in construing the Ohio blue sky law which, like the Michigan law (2 Comp. Laws 1929, § 9789), does not require a license or bond for an individual owner who occasionally sells his own securities, the court held that a, broker who was bonded to sell securities in the general course of his business was also bonded for honesty in selling securities privately owned by him. It said:
“ While he need not have become a dealer to vend his own property, he cannot become a dealer and secure a dealer’s advantages, and then avoid a dealer’s responsibilities, by urging that in a given instance he was relieved of those responsibilities by some personal interest in tlie security vended. ’ ’
Was the fraud practiced by Kiburtz covered by defendant’s bond? In Stone v. Indemnity Ins. Co. of North America, 267 Mich. 580, we pointed out that the blue sky law should be liberally construed, its purpose being to prevent deception in the purchase of securities and that the bond given by the broker was for the purpose of safeguarding the public against misappropriation of proceeds of bonds left with the broker for sale and investment of the proceeds in designated securities. When a broker in his general brokerage business, which includes the purchase and sale of bonds, stocks and mortgages, purchases bonds and receives cash in payment for a third mortgage on the representation that it is a first mortgage, he is guilty of fraud against which the public is protected by the blue sky law and the bond given thereunder. In Hogberg v. Landfield, 99 Cal. App. 360 (278 Pac. 907) cited in 87 A. L. R. 147, the court stated in reference to a similar situation that arose under the California blue sky law:
"Section 5 of the corporate securities act provides that the surety on the bond given under the terms of that act shall be liable to any and all persons who may suffer loss by reason of the broker’s failure to comply with the act. Manifestly the sale of securities by a licensed broker accomplished through false and fraudulent representations is a noncompliance with the provisions of the corporate securities act. ’ ’
The court permitted plaintiff to testify as to conversations with Kiburtz who died prior to the trial. It is claimed by defendant that such testimony should have been excluded because it was equally within the knowledge of deceased. In Lee v. Wisner, 38 Mich. 82, we held that a surety may not invoke the benefit of the statute (3 Comp. Laws 1929, § 14219). The testimony was admissible though its weig'ht might be considered by the trier of the facts. However, even if this testimony had been excluded, there was sufficient additional testimony to sustain the verdict.
Defendant further contends that inasmuch as plaintiff brought no action for recovery of the purchase price within two years from the date of the sale, the claim is outlawed by virtue of the two-year statute of limitations set forth in section 20 of the blue sky law (2 Comp. Laws 1929, § 9788). The statute was not pleaded in defendant’s answer or at the pre-trial docket when parties have the opportunity to check their pleadings and ask for amendments. After the testimony was all in, defendant sought to amend its answer by including the statute of limitations (section 9788). It claimed that it had this right on account of an alleged variance between the proof and the declaration. The declaration referred to the mortgage in question as "mortgage bonds” but the proof showed only one note secured by a third mortgage. While the trial judge stated he would take the motion under advisement, he did not directly pass on it, though he inf erentially denied it when he rendered judgment for plaintiff. We need not decide whether there was an abuse of discretion in denying the proffered amendment, inasmuch as the two-year statute of limitations would not have been applicable even had it been pleaded in the first instance.
The blue sky law, as it stood at the time of this fraudulent sale, was divided into three main subdivisions. Subdivision 1 contained detailed requirements for the filing and validating of securities before the securities commission. Subdivision 2 regulated the conduct of dealers and their salesmen by providing for the securing of licenses and the posting of bonds, and enumerated grounds for revocation of licenses. Subdivision 3 imposed criminal penalties for violations of the act. The two-year limitation provision referred to by defendant is found in subdivision 1 only, being 2 Comp. Laws 1929, § 9788. It provides as follows:
“Every sale or contract for sale of any security, not accepted for filing under this act or made contrary to any order of the commission, shall be voidable at the election of the purchaser, and the person making such sale or contract for sale, and every agent of or for such seller who shall have participated or aided in any way in mailing such sale, shall be jointly and severally liable to such purchaser, upon tender to the seller or in court of the securities sold or of the contract made, for the full amount paid by such purchaser, together with all taxable court costs, in any action brought under this section: Provided, That no action shall be brought for the recovery of the purchase price after two years from the date of such sale or contract for sale. No purchaser otherwise entitled shall claim or have the benefit of this section, who, having knowledge of the fact that such sale was made in violation of the provisions of this act, shall have refused or fail within a reason able time to accept the voluntary offer of the person making the .sale to take back the securities in question and to refund the full amount paid by such purchaser.”
A reading of this section indicates its inapplicability to the transaction in the instant case. It gives a purchaser a statutory right, within two years, to rescind a sale in two situations: (1) Where a security is sold contrary to the filing provisions of subdivision 1; (2) WThere a security is sold contrary to an order of the commission. Clearly, it contemplates a security which in the first instance is required to be accepted for filing. The statutory right of rescission is conferred irrespective of whether the sale could be avoided under principles of common-law fraud. In Waisbren v. Blink, 207 Wis. 619 (242 N. W. 169), the court in construing a similar provision, under the Wisconsin blue sky law, held:
“That three-year limitation in those provisions applies to every action brought for the recovery of the purchase price, when the underlying ground for the purchaser’s recovery is the want or absence, in the first instance, of the permit or authority to sell the security.”
The two-year limitation provision is inapplicable to a sale in which the security was not subject to filing and validation under subdivision 1 of the blue sky law. No claim was made by either party that the sale of the mortgage from Kiburtz to plaintiff was subject to filing under the act. In fact, defendant conceded in its brief that the transaction was exempt from filing when it claimed that the sale constituted an isolated transaction under 2 Comp. Laws 1929, § 9773, subd. c. It, however, contended that the sale, falling within the exceptions of 2 Comp. Laws 1929, § 9773, was beyond the reach of the blue sky law for any and all purposes. It is true that section 9773, in subdivision 1, purports to enumerate certain types of transactions which are exempt from the provisions of the act. The extent of the exemption is, however, qualified by a saving clause. Section 9773 provides:
“And, except as hereinafter provided, the provisions of this act shall not apply to the sale of any security in any of the following transactions * * *
“(c) In an isolated transaction in which any security is sold, offered for sale, or delivered by the owner thereof, or by his representative for the owner’s account such sale or offer for sale or delivery not being made in the course of repeated and successive transactions of a like character by such owner, or on his account by such representative, and such owner or representative not being the underwriter of such security.”
Passing to section 9789, in subdivision 2, it is provided that a person engaged in the business of dealing in securities, whether exempt from the provisions of subdivision 1 or not, is required to take out a license and further, by 2 Comp. Laws 1929, § 9790, such dealer must file a bond in the sum of $10,000. The instant case, therefore, presents a situation in which the transaction is exempt from the provisions of subdivision 1, but nevertheless within the contemplation of subdivision 2 of the blue sky law. We are not unmindful that section 9789 in subdivision 2 provides that:
“Nothing in 'this subdivision shall be construed as prohibiting a bona fide owner of securities from selling the same, excepting that when such owner sells or desires to sell such securities in continued and successive transactions of a similar nature, he shall be deemed a 'dealer’ therein and subject to the provisions hereof. ’ ’
The language in this section resembles somewhat the wording used in section 9773. A careful reading, however, reveals that section 9789 merely intends to define who shall be a dealer within the meaning of subdivision 2, whereas the exemptions found in subdivision 1 relate to filing requirements with the securities commission. We are therefore not concerned with the exception set out above in section 9789 inasmuch as there is no question in this case about Kiburtz being a dealer. A dealer and his' surety are liable for fraudulent sales of securities “whether exempt from or included in the provisions of subdivision 1 of this act,” by the very terms of 2 Comp. Laws 1929, §§ 9789, 9790.
Kiburtz also acted fraudulently in his brokerage business when he, embezzled funds consisting of a payment made on a mortgage sold by Kiburtz to plaintiff’s father. Defendant was a paid surety and while it is true that Kiburtz agreed to pay the amount embezzled by him at the rate of $50 per week and did return $500 of the $800 unlawfully withheld, the record does not show that there was any agreement for an extension given to Kiburtz nor any consideration for such extension. Plaintiff by assignment had a right to recover the $300 and interest unlawfully withheld by Kiburtz.
Defendant claims that the $63 in interest paid by Kiburtz on the first mortgage should have been credited in computing the amount due plaintiff. We have recalculated the amounts and after adding the legal rate of interest and crediting the $63 paid, we find that the judgment is not excessive.
The judgment is affirmed, with costs to plaintiff.
Fead, C. J., and North, Wiest, Bushnell and Sharpe, JJ., concurred. Toy, J., took no part in this decision. Potter, -J.,-did not sit.
See 2 Comp. Laws 1929, "§.9769 et seq.—Reporter. | [
19,
18,
79,
-29,
-32,
2,
0,
2,
6,
19,
-59,
-21,
42,
-9,
-15,
28,
15,
-19,
-11,
-4,
-11,
-37,
-51,
32,
-22,
25,
-2,
-47,
13,
-5,
-4,
0,
-11,
-8,
-55,
34,
15,
-35,
-10,
-28,
-2,
-21,
31,
50,
-22,
10,
-30,
-57,
33,
-28,
7,
32,
79,
11,
-21,
-8,
7,
0,
3,
-1,
-3,
-69,
49,
18,
-10,
10,
0,
6,
51,
-15,
-4,
23,
12,
25,
-8,
29,
-24,
21,
-28,
-66,
-17,
-71,
49,
-3,
-30,
-22,
-14,
13,
-34,
18,
-16,
25,
-5,
25,
44,
-42,
8,
24,
-52,
-3,
13,
-17,
-8,
37,
23,
22,
-24,
-13,
-48,
55,
33,
23,
18,
22,
4,
-19,
-36,
26,
31,
23,
-10,
4,
-2,
-18,
7,
66,
-49,
34,
1,
-31,
2,
0,
-31,
19,
-80,
-24,
-47,
-36,
-55,
13,
53,
-6,
-37,
-12,
-9,
-14,
24,
-45,
29,
2,
-56,
-5,
23,
41,
-13,
-18,
-32,
6,
-17,
-72,
19,
-31,
28,
16,
-15,
-19,
-26,
18,
-3,
-19,
2,
16,
48,
-37,
-21,
19,
15,
-42,
-1,
6,
-19,
4,
37,
-39,
0,
-47,
-9,
-26,
19,
16,
-9,
5,
-7,
67,
-35,
42,
-1,
13,
0,
-3,
30,
-15,
45,
-23,
14,
-43,
73,
11,
-14,
-37,
-40,
-78,
47,
-21,
-3,
5,
-4,
-8,
37,
-31,
31,
12,
-9,
32,
-37,
-49,
-4,
16,
56,
14,
-61,
-89,
39,
22,
-30,
59,
38,
24,
37,
14,
-46,
-14,
-10,
-3,
-24,
-51,
-33,
19,
-27,
0,
-66,
29,
-31,
16,
-1,
47,
-13,
-29,
-14,
48,
-24,
-25,
2,
46,
31,
10,
15,
6,
3,
-16,
22,
-61,
26,
-30,
-42,
-25,
-16,
9,
10,
-35,
52,
11,
-39,
21,
0,
48,
28,
8,
-60,
-36,
11,
15,
29,
-51,
42,
38,
-15,
-49,
42,
54,
-26,
9,
-4,
-10,
50,
-32,
-19,
0,
11,
-19,
-37,
-67,
2,
-28,
29,
-3,
64,
11,
56,
-56,
9,
30,
-27,
18,
-11,
-8,
-30,
-17,
-4,
3,
-2,
-65,
37,
27,
-25,
-34,
12,
-9,
-7,
-4,
-9,
54,
53,
15,
41,
-5,
16,
13,
26,
-3,
-5,
-34,
-16,
32,
-26,
30,
46,
59,
14,
41,
31,
31,
5,
37,
-38,
-7,
-38,
16,
-22,
8,
24,
90,
-57,
-14,
-14,
35,
-44,
26,
-32,
44,
7,
31,
34,
58,
25,
-28,
7,
-12,
-30,
49,
-21,
63,
10,
42,
11,
-49,
-20,
-54,
-64,
-67,
-10,
42,
3,
-52,
-29,
26,
47,
17,
32,
13,
27,
-54,
45,
0,
0,
10,
26,
0,
12,
5,
-6,
22,
-45,
14,
33,
-37,
-5,
11,
-20,
-48,
2,
50,
0,
12,
22,
-37,
-11,
30,
42,
64,
54,
30,
50,
0,
-1,
11,
-30,
25,
50,
-33,
-49,
-50,
-36,
7,
34,
51,
17,
-29,
-35,
-15,
25,
-47,
50,
-14,
0,
-58,
18,
-21,
25,
26,
74,
5,
14,
-19,
-12,
9,
54,
-33,
29,
2,
-58,
-5,
-9,
-34,
-51,
-32,
-30,
5,
2,
31,
3,
-10,
-12,
27,
-53,
-7,
-8,
11,
2,
32,
-17,
-9,
-13,
40,
40,
4,
-7,
-31,
-26,
3,
0,
-26,
-21,
67,
5,
23,
11,
-10,
-9,
25,
18,
4,
0,
26,
-26,
42,
-6,
7,
19,
-21,
5,
-36,
-3,
0,
-7,
8,
26,
29,
-34,
20,
15,
-20,
-19,
-3,
-31,
-13,
-2,
27,
11,
-36,
-39,
-34,
13,
5,
-8,
-5,
2,
-26,
-16,
2,
-70,
14,
-10,
35,
-20,
-22,
-46,
25,
-35,
32,
-7,
-10,
31,
-4,
48,
-15,
-60,
-21,
-46,
10,
8,
21,
-14,
-47,
-55,
127,
-7,
17,
-50,
7,
-2,
7,
-20,
-6,
-10,
0,
27,
23,
19,
-22,
36,
9,
-51,
-20,
-13,
-70,
5,
42,
-11,
25,
-9,
-66,
-6,
22,
14,
-35,
6,
-15,
-26,
20,
36,
29,
27,
3,
13,
60,
5,
33,
-29,
14,
-8,
-79,
0,
-20,
-31,
-15,
-17,
29,
4,
-33,
-53,
-20,
-29,
-6,
-40,
-46,
-20,
10,
11,
-9,
-27,
-17,
11,
17,
-24,
-62,
-25,
-24,
-15,
-50,
33,
-4,
-42,
-28,
48,
-25,
62,
-1,
-3,
12,
15,
-32,
-37,
-28,
16,
69,
-11,
74,
24,
-5,
-15,
-15,
45,
49,
0,
-12,
-1,
-34,
7,
-58,
-16,
-13,
-45,
-20,
18,
-2,
-48,
12,
1,
-21,
53,
11,
-44,
7,
-37,
19,
-2,
-7,
-46,
-8,
38,
3,
49,
4,
-18,
37,
-18,
0,
-37,
0,
-59,
-18,
25,
-48,
69,
-56,
15,
-28,
-10,
39,
26,
-12,
-13,
7,
-59,
76,
-12,
-19,
-18,
-5,
-2,
1,
-15,
-37,
-23,
-2,
22,
53,
33,
0,
0,
19,
12,
36,
14,
-22,
-15,
15,
-9,
13,
-77,
114,
-51,
22,
7,
35,
14,
-74,
-11,
-43,
-49,
20,
-83,
18,
-19,
-21,
-13,
-36,
36,
-34,
34,
-13,
22,
-23,
45,
-2,
62,
28,
70,
-2,
-2,
9,
-5,
15,
-39,
31,
65,
45,
34,
-7,
-15,
32,
-45,
24,
11,
-7,
7,
-3,
5,
40,
-6,
-16,
48,
-24,
17,
10,
-4,
14,
8,
-1,
-35,
49,
0,
-13,
-9,
-2,
12,
9,
-55,
6,
-6,
6,
-11,
-14,
25,
15,
-1,
-29,
-23,
-66,
15,
-29,
-28,
45,
27,
-5,
0,
11,
-19,
-31,
-29,
-50,
-1,
-39,
-21,
-4,
-3,
53,
-23,
10,
13,
-19,
-19,
-25,
38,
-87,
19,
23,
-40,
58,
48,
17,
14,
4,
29,
10,
23,
-35,
18,
4,
-19,
51,
8,
27,
-55,
0,
16,
-27,
-18,
35,
-30,
17,
-68,
8,
7,
14,
-7,
-36,
71,
1,
16,
11,
-59,
8,
-1,
41,
22,
54,
-53,
8,
16,
-9,
-55,
-12,
-98,
0,
29,
-8,
10,
20,
-38,
-53,
-83,
-39,
-20,
-26,
6,
55,
-7,
35,
3,
0,
-59,
17,
-4,
-66,
8,
-27,
-5,
-43,
21,
6,
16,
-15,
1,
5,
16,
-8,
14,
31,
-7,
66,
-6,
41,
-69,
-22,
6,
13,
15,
-5,
20,
15,
-7,
-19,
91,
19,
47,
12,
22,
-13,
-38,
-14,
-47,
3,
-36,
-30,
13,
46,
6,
-46,
-36,
55,
-32,
47,
27,
4,
50,
34,
-60,
18,
38,
-17,
-4,
12,
-9,
-29,
60,
34,
-15,
-33,
-9,
-4,
30,
12,
0,
47,
74,
-11,
33,
-20,
-6,
3,
25,
-28,
-27,
42,
9,
56,
47,
-17,
-3,
56,
-41,
76
] |
North, J.
Defendants Gruenbauer own land in Walker township, Kent county, Michigan, on which is located a producing oil well operated by defendant Van Mourik. Plaintiffs are the lessors and lessees of the remaining acreage comprising the 10-acre tract known as the southwest quarter of the northwest quarter of the southwest quarter of section 33, township 7 north, range 12 west, in Kent county. It is the claim of the plaintiffs that they are entitled to share in the proceeds from the Gruem bauer well due to a community agreement whereby all oil produced from any well on the 10-acre tract was to be divided according to the proportion of acreage held by the respective lessors. Defendants Gruenbauer, Bolger and Milanowski, holders of interests in the production on the Gruenbauer property, appeal from a decree by the trial court holding that the Gruenbauers entered into such an agreement and granting plaintiffs an accounting.
On February 20, 1939, the Gruenbauers gave an oil and gas lease to Stephen J. Bolger doing business as the Mt. Pleasant Drilling & Producing Company. He failed to begin drilling and the Gruenbauers thereupon executed another lease of the same premises for oil and gas to Van Mourik on April 26, 1939, which was to be null and void if the Bolger lease proved still binding. Van Mourik began drilling, as required by his lease, and had drilled to a depth of about 1,000 feet and had spent about $5,000 when Bolger filed suit to halt the drilling and cancel the lease of Van Mourik. On August 18, 1939, the circuit court for Kent county held the Bolger lease was still good and that the Van Mourik lease was void. Van Mourik and Bolger then agreed that Bolger would assign to Van Mourik all but % of his overriding royalty in the Gruenbauer property (the Gruenbauers by their lease to Bolger had given him all but a % land owners’ royalty of all the oil and gas produced from their premises), in consideration of Van Mourik’s finishing the drilling. This left the original % interest in the Gruenbauers, a % interest in Bolger and % interest in Van Mourik. Bolger then made some other assignments of his % remaining interest on September 1, 1939, which do not all appear on the record but which seem to be admitted by all the parties to this suit: Peter J. Bolger, %4 overriding royalty; Henry J. Milanowski, %4; Wencel A. Milanowski, %4; Smith Petroleum Company, %4; Edward B. Strom, Successor Trustee, %4; leaving %4 overriding royalty in Stephen J. Bolger.
Van Mourik completed the drilling operations and a producing oil well was brought in on Gruenbauers’ property on or about September 27, 1939. Meanwhile, it had been ordered by the State'conservation department on September 13, 1939, that oil wells in Kent county would be limited to 100 barrels per day for each 10-acre drilling unit, which meant that a 2-acre tract such as the Gruenbauersowned might produce only 20 barrels per day. This limitation on production of oil created a problem for Van Mourik, and, also for the Smith Petroleum Company and Strom who held the lessees ’ interests on the other 8 acres in the 10-acre tract. Van Mourik could not realize enough proceeds from 20 barrels of oil per day to pay his operating expenses, let alone his drilling costs; the lessees of the other land in the tract were obligated to their lessors to drill though the lessees were of the opinion it would have been an economic waste as well as impracticable to drill more than one well in this 10-acre area.
It was under the above circumstances that the first community agreement was attempted as of September 27,1939. By it, in effect, the Gruenbauer well would have been allowed to produce 100 barrels per day instead of 20 since there would have been a drilling unit of 10 acres instead of 2 acres; also, the proceeds would have been divided in proportion to the number of acres in which each of the parties had an interest. Incidentally, the Gruenbauer tract contained only 1.75 acres in this 10-acre tract set out in the proposed agreement; however, it seems to have been agreed to allot the Gruenbauer share on the basis of a 2-acre ownership. The Gruenbauers refused to sign the proposed pooling agreement. Thereupon a second pooling or community agreement was entered into on October 24, 1939, by the lessees of'the 10 acres only whereby Van Mourik took over the operation and management of the entire 10-acre tract and assumed the responsibility for its operation and for paying the royalties to all the lessees and lessors. The State conservation department accepted this agreement November 1, 1939, and from that date allowed production from the Gruenbauer well as though it were located on a 10-acre tract. It is interesting to note • here that at that time, the State conservation department would accept a communitization agreement even though it’had not been signed by all the interested parties, but that because of the trouble which arose in this case, the department wrote Mr. Smith of the Smith Petroleum Company: “we may find it desirable to call for consent of royalty owners in the community projects that we consider in the future.”
Until November 1, 1939, proceeds from the well were divided by defendant Imperial Refining Company, which purchased the oil, according to the provisions of the assignments of interest in the 2 acres. After production of 100 barrels of oil per day began, a new division order or agreement was necessary, if the operation was to be carried on as of a 10-acre unit; but such an order or agreement was not signed by all the parties in interest. The Gruenbauers refused to sign such an agreement. As a result, the proceeds of oil produced, except a sum paid to Yan Mourik, have been impounded by the purchaser, the Imperial Refining Company. Plaintiffs brought suit, demanding an accounting. The trial court granted the relief sought by plaintiffs. It was so decreed in consequence of the trial judge finding as follows:
‘ ‘ Gruenbauer claims that he never agreed to enter into the community lease, but I find, as a matter of fact, that he did so agree prior to the well being brought in and then after all the other parties had signed it he refused to sign, and I find that there has been obtained from the communitization a greater production from this well than would otherwise have been permissible. Yan Mourik entered into the community lease under which he is required to make payments to the owners and lessees of the surrounding land in reliance upon Gruenbauer’s statement that he would sign the community lease. Gruenbauer is thereby estopped from claiming any greater return than he would have been entitled to if he had actually executed the community lease.”
After careful consideration of the record in this case we are constrained to hold that the testimony does not support or justify the finding of the circuit judge that Gruenbauer “did so agree (to enter into the community lease) prior to the well being brought in.” The record shows that neither Mr. Gruenbauer nor his wife agreed to a pooling or communitization of the oil rights in the 10-acre parcel. Plaintiff Smith testified that he knew that Gruenbauer and Bolger never agreed to' a communitization; hut that he relied on Yan Mourik’s statement that he would be able to get all the landowners to sign up. Yan Mourik testified he had conversations with Mr. Gruenbauer about the time the well was completed. We quote from his direct examination:
“Q. And when was it, relative to the conditions of the well, that you had these conversations with Mr. Gruenbauer?
“A. That was just about the time we completed the well.
“ Q. Did you understand that he was satisfied or would be satisfied with the community lease ?
“A. At that time he was. * * *
“Q. Did he tell you he would (sign a community lease)?
“A. Well, we didn’t talk about the signing of it, but I know he didn’t have any objections.”
On further examination by plaintiffs ’ counsel Yan Mourik testified:
“Q. As I understand it, when you first talked to Mr. Gruenbauer about having a community lease, do I understand you be told you be was agreeable to it?
“A. In tbe beginning be was agreeable to it.
“Q. And in your talk to him. about it, did he say be expected to get bis % royalty from, any more than 2 acres?
“A. Not in tbe beginning. Later on be got greedier and greedier. * * *
“ Q. * * * When was it be raised tbe question whether be was entitled to royalty on tbe entire acreage?
“A. That is wben we came to him about him signing tbe division order.
“Q. About wben was that?
“A. Very shortly after we made tbe community lease (between tbe lessees).”
It might be well to note at this point that on tbe controversial aspect of this case the interest of defendant Van Mourik coincides with that of plaintiffs. Wben cross-examined by tbe attorney for appellants, defendant Van Mourik testified as follows:
“Q. Can you relate to tbe Court tbe conversa' tion you bad with him (Gruenbauer) with respect to these communitizing agreements ?
“A. Well, I wouldn’t remember it word for word. We talked about it — about pooling it.
“Q. Anyway, be never talked about communitizing bis 2 acres with tbe 8 acres?
“A. He didn’t with me. * * *
“Q. Well, you knew at that time, Mr. Van Mourik (January 19, 1940), that tbe Gruenbauers or tbe Bolgers never consented to any communitization?
“A. Well, tbe impression that I got — •
“Q. Just answer my question.
“A. No, they didn’t.”
Except as above quoted there is nothing in tbe record to show whereby Van Mourik could have gained an impression that the Gruenbauers would sign such a community agreement as was desired by Van Mourik. When asked to testify as to the alleged conversations he had with Mr. Gruenbauer relative to this, Van Mourik could not remember them and he admitted Gruenbauer had never agreed to join in the pooling agreement. As a matter of fact, it would seem that the Gruenbauers would have nothing to gain by entering into such am agreement while plaintiffs would thereby avoid the drilling of other wells and Van Mourik would get his money out faster by producing 100 barrels per day instead of only 20. It could not be argued that Mr. Gruenbauer led Van Mourik into drilling by implying he would sign a community agreement since the conversations appear not to have begun until the well was in or nearly in; and also, Van Mourik had already bound himself in his agreement with Bolger to complete the drilling of the well.
Another phase of the record should be noted which quite conclusively defeats any contention on the part of Van Mourik that the Gruenbauers should be held to be estopped from claiming that they were not parties to the pooling or community contract under which Van Mourik operated the well after November 1, 1939, on the basis of a 10-acre unit, i.e., allowing production at the rate of 100 barrels per day. That permit from the conservation department was obtained on the strength of the so-called community agreement entered into by the lessees of the respective parcels. None of the owners of the land were parties to this community agreement or order. But prior to execution of this so-called community or pool agreement, the Gruenbauers had positively refused to sign a like agreement to which the owners of the land were made parties and which was signed by the owners of the parcels other than the Gruenbauers. It cannot be held under this rec ord that there was any conduct on the part of the G-ruenbauers which would estop them from now taking the position that they are not bound by either of the two attempts made to communitize- or pool their oil interests with those of others interested in the balance of the 10-acre tract.
The defense that the pooling or community agreement would be within the statute of frauds was not raised so will not be discussed.
Act No. 61, § 13, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 5712-53, Stat. Ann. 1941 Cum. Supp. § 13.139 [13] ), provides as follows:
“The pooling of properties or parts thereof shall be permitted, and, if not agreed upon, the supervisor after conference with and recommendations by the board, may require such pooling in any case when and to the extent that the smallness or shape of a separately owned tract or tracts would, under the enforcement of a uniform spacing plan or proration or drilling unit, otherwise deprive or tend to deprive the owner of such tract of the opportunity to recover or receive his just and equitable share of the oil and gas and gas energy in the pool.”
It is not claimed that a community agreement was required as a matter of law under the above-quoted statute. The permit to operate on the basis of a 10-acre unit was not granted by the supervisor or department of conservation on the ground that it was being so ordered under the authority of the statute; but instead the permit so to operate was issued on the assumption that a binding community agreement had been consummated. Clearly such assumption as applied to the Gruenbauers was erroneous. Nor do we find that the defendant appellants were estopped from denying any pooling or community agreement because, without their being in any way a party thereto, Yan Mourik obtained a permit to operate the well at the rate of 100 barrels per day, and that the well was so operated after November 1, 1939. That the well was so operated did not work to the disadvantage of any of these litigants, but in fact was quite to the contrary.
Before Van Mourik secured the permit to operate at the rate of 100 barrels a day he had entered into an agreement with the other lessees as follows:
“It. is understood and agreed that Yan Mourik hereby accepts the responsibility for the development, operation and management of said 10 acres as a unit for the production of oil and gas and the payment of royalty to the various lessors as their interests appear (and also to the other lessees).”
Van Mourik was already under contract obligations to account for royalties to the parties who owned the 2-acre parcel, and by the agreement just above quoted he obligated himself for “the payment of royalty to the various lessors as their interests appear. ’ ’ Under the' circumstances the main controversy in this case is in effect between Van Mourik and the G-ruenbauers. Under the record we think he was obligated to pay royalties to the Gruenbauers on the basis of % of all the oil produced by means of the well on the Gruenbauers’ 2 acres, notwithstanding Yan Mourik had obtained a permit to operate the well as one located on a 10-acre unit. The decree entered in the circuit court on this phase of the case must be reversed.
Defendant Stephen J. Bolger and other defendants who through him have an interest in the royalties on production from the Gruenbauer well have appealed from the decree of the circuit court by which it was adjudicated that the royalties to be paid to these appellants should be computed on the basis of tbe proportion of oil produced on the 2-acre tract as contradistinguished from the total production on the 10-acre unit. We are of the opinion that this conclusion on the part of the trial judge was correct. It is a fair conclusion from this record that neither Stephen J. Bolger or any of his assignees ever had any interest whatever in the petroleum deposit in this 10-acre tract except that portion under the Gruenbauer 2 acres. By his assignment of his lessee’s interest in the Gruenbauer two acres to Van Mourik, Stephen J. Bolger divested himself of all interest except the reservation “unto himself a % overriding royalty to said described 2 acres, and its oil, free and clear of any claims or interests whatever. ’ ’ The circuit judge in his opinion touching this phase of the case said: “It is significant that the assignment of his lease to Yan Mourik reserved only a % royalty Go said described 2 acres’ rather than % of the production of the well. Bolger is an experienced operator in leasing oil and gas rights. # * * I find * * * that the language thereof was appropriate to and did express their intention that Bolger’s royalty should be based upon the production which would be attributable to the 2 acres covered by that lease.” The record supports the above finding and the decree in this respect should be affirmed.
Defendant Yan Mourik urges that this appeal should be dismissed because no reasons or grounds for appeal were filed or embodied in the record at the time same was settled in the circuit court. This was called to the attention of the trial court at the time of settling the record, but over objection the record was settled without embodying therein reasons or grounds for appeal. Defendant Yan Mourik did not at that time take any further steps to correct this defect, as he might well have done. The record as printed does contain ' ‘ assignments of error.” These present the questions upon which appellants rely in this court, and timely advised appellees of the issues involved on this appeal. Notwithstanding the practice was in violation of Court Buie No. 66, § 3 (1933), since the case has been fully presented by record and briefs in this court, and because nothing would be gained by remanding the record to the lower court for correction at appellants’ expense, we are not disposed to dismiss the appeal without passing upon the questions presented. See Conely v. Dudley, 111 Mich. 122.
A decree may be entered in this court in accordance with our opinion herein providing, subject to possible mathematical correction, that the respective parties to this suit are entitled to receive the past, present, and future proceeds of the Gruenbauer oil well in the following proportions:
Gruenbauers 80/640
S. J. Bolger 8/640
P. J. Bolger 8/640
W. Milanowski 6/640
EL Milanowski 6/640
Smith Petroleum Co. 34/640
E. B. Strom 34/640
Van Euwens 45/640
Kasper 13/640
Zeeffs 7/640
Van Mourik 399/640
640/640
Appellants Gruenbauer and plaintiff appellees may tax costs of this Court against defendant and appellee Henry Van Mourik.
Chandler, C. J., and Boyles, Butzel, Bushnell, and Sharpe, JJ., concurred. Starr, J., did not sit. Wiest, J., took no part in this decision.
See 3 Comp. Laws 1929, §13411 (Stat. Ann. § 26.906).—Be-PORTER. | [
48,
77,
0,
18,
-28,
6,
-16,
8,
7,
23,
52,
-28,
53,
15,
30,
-25,
11,
-24,
-15,
20,
-16,
-72,
25,
3,
9,
-15,
-29,
9,
-25,
-9,
-57,
-16,
-42,
-47,
15,
27,
2,
11,
-5,
-13,
22,
-24,
31,
24,
13,
-3,
-7,
-11,
49,
7,
53,
40,
44,
0,
-6,
-43,
-16,
-8,
-8,
-3,
1,
2,
44,
4,
69,
40,
-10,
6,
46,
-27,
-25,
26,
0,
-12,
58,
3,
-17,
16,
36,
1,
3,
-4,
38,
35,
-52,
12,
-25,
18,
6,
-24,
-34,
-9,
-74,
32,
40,
15,
-3,
36,
-48,
-2,
18,
5,
-39,
27,
5,
-9,
-11,
5,
43,
5,
-9,
18,
48,
-37,
-26,
-53,
-16,
-24,
1,
-10,
-22,
-5,
45,
78,
-2,
29,
-31,
-26,
6,
-52,
35,
-46,
-16,
-38,
21,
17,
61,
-15,
-21,
28,
14,
0,
-32,
26,
-2,
2,
10,
-60,
0,
-14,
-13,
-16,
29,
13,
13,
-18,
50,
-14,
1,
-30,
-30,
-32,
48,
17,
-49,
-16,
42,
12,
-22,
0,
71,
-3,
8,
-45,
-1,
-15,
5,
-27,
0,
-38,
25,
3,
-34,
8,
-37,
-39,
-85,
33,
-13,
28,
44,
-27,
-12,
-23,
-57,
28,
-23,
25,
-31,
7,
-7,
-33,
0,
0,
-17,
1,
9,
26,
19,
-40,
11,
2,
13,
-74,
-30,
18,
-33,
-35,
20,
-29,
52,
-40,
-13,
40,
-14,
-21,
23,
-26,
-22,
-54,
-39,
-70,
32,
35,
-16,
-6,
17,
-6,
26,
31,
-23,
-42,
-38,
18,
31,
25,
-23,
-19,
7,
37,
-45,
-39,
-78,
38,
-40,
-8,
0,
19,
-41,
6,
-56,
14,
-37,
-11,
0,
-39,
-61,
-5,
-18,
37,
-27,
17,
16,
9,
-71,
-54,
3,
-32,
24,
64,
5,
-10,
-10,
18,
18,
22,
-13,
26,
-75,
-29,
5,
40,
-3,
-3,
-3,
-11,
7,
-17,
28,
50,
-5,
-13,
7,
-20,
48,
3,
-33,
-9,
12,
32,
6,
-13,
-6,
-28,
26,
1,
20,
62,
8,
-7,
32,
-17,
-37,
32,
-29,
32,
33,
-3,
6,
36,
-7,
-37,
-13,
26,
-39,
-45,
-9,
-19,
-16,
-2,
30,
11,
48,
6,
-2,
0,
4,
2,
-23,
-30,
-1,
-16,
41,
59,
-12,
-2,
31,
-12,
-15,
26,
49,
-8,
29,
0,
-5,
20,
5,
-47,
30,
27,
-4,
8,
-44,
5,
-25,
4,
-4,
0,
-77,
52,
-4,
-10,
17,
-19,
57,
5,
9,
5,
-11,
-29,
-36,
-77,
5,
25,
-2,
-26,
-1,
-39,
8,
2,
47,
26,
-21,
4,
5,
-32,
48,
-6,
-9,
-21,
40,
-53,
-32,
-2,
10,
2,
38,
14,
-3,
-25,
45,
-10,
-19,
-69,
27,
-46,
14,
-14,
-5,
23,
-23,
35,
8,
43,
43,
-11,
-38,
15,
-45,
15,
-58,
-15,
24,
0,
-15,
23,
-64,
49,
48,
-32,
0,
51,
-45,
-5,
-42,
21,
43,
-1,
23,
38,
-21,
27,
8,
-34,
0,
-7,
9,
19,
-19,
63,
-52,
51,
1,
9,
6,
7,
-7,
6,
3,
2,
18,
39,
-54,
-17,
-27,
-57,
5,
22,
5,
-6,
5,
4,
-56,
-25,
21,
-21,
3,
23,
51,
19,
-13,
-19,
22,
21,
1,
33,
45,
-26,
10,
17,
8,
-25,
9,
-25,
-27,
-18,
10,
-10,
-8,
21,
-10,
15,
45,
3,
2,
43,
18,
-40,
18,
25,
-24,
-59,
-36,
11,
-7,
-78,
14,
18,
-8,
-19,
1,
-3,
19,
-2,
26,
22,
-19,
-21,
-24,
-76,
-38,
-22,
-17,
20,
32,
27,
17,
-10,
-26,
-30,
22,
25,
12,
-35,
29,
-3,
1,
10,
16,
57,
-7,
10,
38,
7,
19,
29,
-43,
25,
-14,
41,
36,
-16,
32,
-28,
-46,
76,
68,
2,
13,
-19,
-47,
-21,
5,
-23,
21,
-16,
82,
43,
22,
-17,
0,
-34,
-26,
-21,
7,
25,
-42,
28,
-11,
-37,
-27,
27,
37,
34,
20,
-26,
6,
-72,
46,
-29,
11,
-2,
6,
61,
18,
26,
-17,
1,
-66,
18,
-71,
-31,
1,
11,
64,
37,
36,
38,
-59,
33,
57,
-40,
-37,
6,
-45,
-3,
3,
-59,
-20,
-12,
4,
38,
71,
21,
28,
-5,
-4,
-38,
3,
-33,
52,
4,
-28,
6,
-18,
-70,
56,
-11,
64,
29,
-25,
1,
17,
10,
-25,
-11,
46,
49,
-30,
51,
-18,
-17,
-5,
28,
16,
3,
34,
29,
4,
-33,
29,
11,
-13,
67,
-22,
-36,
-2,
-14,
-34,
18,
16,
22,
13,
12,
-1,
39,
5,
-52,
50,
38,
31,
1,
21,
0,
7,
63,
41,
-48,
-14,
-19,
-18,
-65,
-71,
23,
29,
-4,
-37,
-21,
-51,
14,
-27,
50,
-5,
-15,
13,
-6,
50,
-4,
-52,
-34,
15,
-42,
-34,
19,
23,
3,
20,
19,
10,
4,
-52,
35,
2,
61,
38,
-48,
-14,
-24,
-47,
33,
22,
-5,
-30,
-6,
-1,
-17,
-9,
-36,
-10,
-24,
10,
36,
-26,
7,
21,
-14,
35,
23,
31,
15,
-12,
-45,
54,
-49,
-7,
0,
19,
0,
-6,
64,
0,
-38,
48,
-33,
3,
25,
-17,
-2,
20,
-31,
-12,
11,
-28,
74,
53,
-42,
32,
4,
11,
39,
10,
-3,
44,
-41,
-4,
52,
-32,
36,
3,
21,
0,
-15,
-23,
14,
-14,
1,
-5,
-71,
-31,
-6,
84,
-24,
3,
58,
6,
-25,
1,
4,
-18,
-19,
-8,
-80,
-14,
-2,
-17,
1,
-51,
31,
-24,
-35,
-10,
-6,
18,
-14,
23,
-8,
-11,
-3,
-26,
91,
31,
-37,
-88,
62,
1,
-33,
15,
32,
-62,
22,
-19,
-8,
-56,
-25,
34,
44,
-13,
-73,
11,
10,
-85,
16,
9,
-6,
-45,
28,
21,
-11,
-7,
10,
20,
-70,
-66,
-36,
-27,
4,
85,
-42,
-9,
-24,
-9,
-26,
47,
-29,
-87,
90,
13,
-60,
-19,
18,
-14,
34,
-49,
27,
-56,
23,
-5,
20,
-29,
14,
36,
-34,
-48,
35,
-41,
-11,
-19,
22,
27,
26,
-35,
-46,
2,
-8,
-20,
32,
32,
-60,
-17,
13,
6,
29,
-30,
20,
13,
22,
43,
-27,
-24,
51,
-11,
14,
-35,
47,
8,
-64,
-50,
50,
-25,
-30,
-14,
49,
19,
5,
2,
-60,
-43,
59,
0,
-1,
0,
-3,
-7,
-33,
29,
-37,
-29,
75,
34,
2,
-4,
-43,
-38,
17,
24,
-34,
-45,
32,
-20,
57,
38,
-3,
11,
11,
34,
24,
-3,
-32,
-6,
-22,
35,
10,
-13,
26,
43,
0,
14,
6,
54,
17,
-37,
-7,
34,
3,
13,
50,
-38,
-32,
10,
40,
-8,
-83,
-35,
27
] |
Butzel, J.
(dissenting). This is an action to foreclose a trust mortgage. The controversy we are to resolve is focused on a provision of the foreclosure decree' authorizing’ the trustee- under the mortgage indenture to bid for the property at the judicial sale on behalf of all the holders of outstanding bonds, and to satisfy the bid by crediting the mortgage debt, without production of the bonds secured by the mortgage.
In June, 1928, the Barium Realty Company, John J. Barium and Julia M. Barium executed to the Federal Bond & Mortgage Company, Incorporated, a Virginia corporation, a trust mortgage to secure a $3,600,000 issue of bonds of the mortgagors. Plaintiff Equitable Trust Company, a Michigan corporation, is the successor trustee. Interest payments have been in default since 1931. Plaintiff filed a bill to foreclose the mortgage in July, 1932; three bondholders were permitted to intervene in January, 1933. A decree of foreclosure was entered in June, 1939, finding that there was due on the mortgage debt the sum of $6,077,002.11, with interest at 6 per cent, from June 30, 1939, and that in default of payment of this sum on or before August 1,1939, the mortgaged property should be sold to satisfy the obligation. The decree authorized the trustee to bid at the sale and to make good its bid “by crediting the said amount on the amount then due under this decree’9 if purchase by the trustee was requested by the holders of 51 per cent, of the bonds. Eighty-one per cent, of the bonds, totalling the sum of $2,950,100, have been deposited with a bondholders’ committee; the appealing intervener’s bonds totalling $1,500 have not been deposited with the trustee or any committee. Defendant mortgagors and one of the interveners object to the part of the decree which permits the trustee to satisfy its bid by crediting thereon the mortgage debt if purchase is requested by 51 per cent, of the bondholders. It is claimed: (1) that the mortgage indenture does not authorize the application of the mortgage debt to the trustee’s bid without presentation of the outstanding bonds or the express consent of the bondholders; (2) that the bonds and coupons, being negotiable instruments, the mortgage provision would not be enforceable in the absence of notice thereof on the face of the bonds or coupons; and (3) that the decree permitting the trustee to bid for all the bondholders without express consent deprives appellants of their property in violation of the fourteenth amendment to the Federal Constitution.
It is first necessary to determine whether or not the provisions of the trust indenture authorize the decree entered below permitting the trustee to bid for all the bondholders on foreclosure sale without presenting the bonds or obtaining consent of all the bondholders. A similar issue was before us in Union Guardian Trust Co. v. Building Securities Corp., 280 Mich. 144 and 280 Mich. 717, where an equally divided court affirmed a decree giving this right to the trustee. Some of us were of the opinion that the indenture did not warrant such a decree because in the article dealing with the foreclosure, the clause providing for purchase at judicial sale, while listing the trustee as an eligible buyer, declared that bonds could be used toward payment of the purchase price “by presenting- such bonds.” (Art. 9, § 5 of the indenture in that case.) Article 10 of the same indenture enumerated the liabilities, duties, powers and rights of the trustee, and section 2 thereof aimed to clarify by stating:
“But all powers and rights of action hereunder may be exercised and enforced at all times by the trustee, at its election, without the possession of any of said bonds or coupons, or proof of ownership thereof at any time whatsoever.”
In writing for reversal, Justice Bushnell said:
“Had the parties intended that the purchase would be made ‘without the possession or production of any of said bonds or coupons, or proof of ownership thereof,’ the natural place to state such intention would be in article 9, § 5.”
He later said that:
“Neither party contemplated that the sentence which begins with the conjunction ‘but’ would be lifted from the context of its paragraph and read into another article which provides for the terms of purchase, and by such transfusion or grafting process, give added vigor to the carefully chosen language of section 5. Standing alone, the language of section 5 does not provide for purchase by the trustee in the manner permitted by the decree. ”
The indenture before us now has a full and clear article dealing with the event of foreclosure, and the decree entered in the court below is fully warranted by this article alone without reference to the clarification clause in the later article dealing with the duties of the trustee, or, as stated by Justice Fead in the Building Securities Case, “without dragging the second sentence of article 10, § 2, from its ambush.” Article 8 of the present indenture deals with foreclosure, sale and distribution. Section 4 of article 8, in the instant case, like article 9, § 5, in the Building Securities Case, deals with the use of bonds by a purchaser “by presenting such bonds and coupons.” Section 5 of article 8 in the instant case in so many words warrants the decree entered. There was no corresponding provision in the Building Securities Case. This section authorizes the trustee or its successor, on request of at least 51 per cent, of the holders of the then outstanding bonds covered by the mortgage, “to purchase the said lands, leasehold estate, securities, property and premises embraced herein for the use and benefit of the holders of the then outstanding bonds, secured by this mortgage, and having so purchased said lands, leasehold estate, securities, property and premises, the right and title thereto shall vest in said trustee and no bondholder shall have any claim to the lands, leasehold, securities, property or premises, or the proceeds thereof, except for his pro rata share of the proceeds of any disposal by the trustee of said purchased lands, leasehold estate, securities, property and premises.”
The requirement of purchase “by presenting such bonds and coupons” is notably absent. Instead, the authorization to purchase “for the use and benefit of the holders of the then outstanding bonds, secured by this mortgage,” has no requirement of payment in cash or “by presenting such bonds and/or coupons,” — if the trustee may act for all, there is no need for presentation of bonds or payment in cash. The bondholders have agreed to place control in a majority, and on majority approval they have agreed to become beneficial owners of the property mortgaged. In this event, presentation of the bonds is needless, and, therefore, it is not required. The debt is satisfied to the extent the trustee’s bid is credited thereon. Section 5 would be nullified if we are to say that the trustee cannot act on the command of a majority without depositing cash to pay a pro rata share to nondepositing bondholders — the language does not command that this be done, and we would impair the accomplishment of the purpose of this provision by adding such a limitation by construction. Its purpose was to obviate any large cash payment to nondepositors, which payment would otherwise be required if the trustee were to act as purchaser for assenting bondholders at foreclosure sale under an indenture that is not so comprehensive (Detroit Trust Co. v. Stormfeltz-Lovely Co., 257 Mich. 655 [88 A. L. R. 1263]).
The next problem is whether or not the rights of an objecting bondholder are limited by the majority provision in the indenture. The trial court based its decree on Sage v. Railroad Co., 99 U. S. 334, in which the indenture gave the trustee power to bid for all, in language closely akin to that in the indenture before us now. Appellants seek to distinguish that case and say that the provisions are unenforceable because the bonds before us are negotiable in form and contain on their face, they claim, no binding notice of the indenture limitations. They claim further that this objection was not raised in the Sage Case but should be considered here. The bond itself, while not incorporating the trust indenture, informs the holder that it is “one of a series of bonds * # * equally and ratably and without priority or preference of any bond over the other for any reason whatsoever, secured by a trust mortgage dated June 15,1938, duly executed and delivered by the mortgagors to the Federal Bond & Mortgage Company, Inc., of the city of Detroit and State of Michigan, as trustee.” There is a further declaration that the bond is “subject to redemption * * * in tbe manner and upon the terms set forth in said trust mortgage.
“In case of default * * * of any of the covenants or conditions .of said trust mortgage, the principal of this bond may become due and be declared due and payable before its regular maturity * * * as provided in said trust mortgage.”
The contention fails when we are mindful that the issue of the securities involved the creation of two separate contracts. In Mendelson v. Realty Mortgage Corp., 257 Mich. 442, Justice Fead stated:
“It is a fact, recognized alike by business and the law, that a bond and its securing mortgage have different functions, are governed by different legal principles, and, for some purposes at least, are separate contracts. Paepcke v. Paine, 253 Mich. 636 (75 A. L. R. 1205). * * *
“Primarily, a bond is a contract to pay, the mortgage is a separate contract to secure payment.”
In Gilfillan v. Union Canal Co. of Pennsylvania, 109 U. S. 401 (3 Sup. Ct. 304), Chief Justice Waite stated:
“Mortgages of the kind of that executed by this company are of a peculiar character, and each bondholder under them enters by fair implication into certain contract relations with his associates. Such bondholders are not, like stockholders in a corporation, necessarily bound, in the absence of fraud or undue influence, by the will of the majority, when expressed in the way provided by law, but they occupy, to some extent, an analogous position towards each other.”
In the Sage Case, the court pointed out that the complaint of the intervening bondholders was “respecting the disposition which the court decreed to be made of the property, in case the trustees of the mortgage should become the purchasers.” In answering this objection, the court stated that the bondholders had arranged for the contingency of a judicial sale so that there could be a purchase for the common benefit of all. It was said:
“To carry out these intentions a majority of the bondholders was empowered to act eontrollingly for the entire body, in matters respecting the purchase and disposition of the property purchased, subject to the limitation that the purchase, if made by the trustee, should be for the use and benefit of the outstanding bonds. * * * The agreement, though unusual, was a reasonable one. * * *
“Such was the contract and such the power conferred upon a majority of the bondholders. It was such a contract which the bills brought before the circuit court for a decree. In view of its provisions we cannot think it was error to decree, as the court did, that the mortgaged property should be sold to the highest and best bidder, and that the trustee should be authorized and directed to bid at the sale, as trustee for the first-mortgage bondholders, at least the amount of principal and interest of the first-mortgage bonds. * * *
“We see no error in the decree, so far as it required any other persons than the trustee under the first mortgage, if he became the purchaser at the sale, to pay at once in cash a part of his bid, as earnest money. Such other purchaser, of course, must be a cash purchaser, at least to the extent of the sum due on the first mortgage. * * * That the same requirement was not made of the trustee was very proper, for the reason that a purchase by the trustee required no payment of money, beyond a sum sufficient for costs, unless the bid exceeded the sum due on the first 'mortgage, the purchase being made for the first-mortgage bondholders.”
The holders of negotiable bonds may not at their liking elect to ignore completely their security contract when it has been called into action by foreclosure. Nor are any rights taken away when a court of equity administers the foreclosure and specifically enforces such provisions in the security contract as are called upon here to give effect to the agreed will of a majority. The very institution of foreclosure under the indenture affects by operation of law the rights of the holders of the bonds and brings the entire transaction within the aegis of a court of equity. Section 14367, 3 Comp. Laws 1929 (Stat. Ann § 27.1135), provides that:
“After such bill shall be filed, while the same is pending, and after a decree rendered thereon, no proceedings whatever shall be had at law for the recovery of the debt secured by the mortgage, or any part thereof, unless authorized by the court.”
See, also, amendment by Act No. 169, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 14367), providing for consolidation with the foreclosure suit of all cases begun subsequent to the foreclosure action by holders of evidence of indebtedness secured by the mortgage. Once the transaction is brought into a court of equity on foreclosure, as authorized by the indenture, equity should give effect to all of its terms. It will not do to say that equity may not do s'o because all the terms of the security contract were not incorporated in the bond. In Grant v. Railway Co., 85 Minn. 422 (89 N. W. 60), in disposing of the claim that the bondholder was without notice of the terms of the mortgage, the court said:
“Where such a railway bond contains a clear statement that it is one of a series of bonds secured by a mortgage to a trustee upon the property of the railway, every proposed purchaser is thereby advised that if he buys he will be brought into contract relations with his co-bondholders, and that his absolute rights in respect to the foreclosure of the mortgage, or the collection thereby of the principal or interest of his bond, are limited by the provisions of the trust deed and the peculiar nature of the security.”
What we say here does not apply to a no-action clause in an indenture which is sought to be used to thwart the attempts of uninformed bondholders to collect on the bonds before the institution of foreclosure proceedings. In Guardian Depositors Corp. v. David Stott Flour Mills, Inc., 291 Mich. 180, it was held by a majority of the court that the restriction on the right to sue at law must appear on the face of the bonds to bind the holder, but this ruling has no application when foreclosure is under way, for then the right to sue is controlled by statute, 3 Comp. Laws 1929, § 14367 (Stat. Ann. § 27.1135).
Appellants’ last claim is that they are entitled to payment in money “either perforce the personal obligation or resort to the security,” and that the decree deprives them of that right, in contravention of the fourteenth amendment to the Federal Constitution. The argument is without merit. The decree merely enforces the contract according to its terms.
“By the agreement, the entire body of the bondholders consented to place their interests, to a certain extent, under the control of a majority of their number.” Sage v. Railroad Co., supra.
Due process has been accorded in substance as well as in form.
The decree should be affirmed.
Bushnell, C. J., and Wiest, J., concurred with Butzel, J.
Potter, J.
The bonds issued provided:
“The holder * # * shall have all the rights of a holder in due course for value and without notice, * * * and this bond shall have all other attributes of a negotiable instrument. ’ ’
The power of sale contained in the1 real-estate mortgage collateral thereto was a matter of contract. Butter v. Ladue, 12 Mich. 173; State Bank of Bay City v. Chapelle, 40 Mich. 447. There was nothing on the face of the bonds indicating the holder thereof would be compelled, in case of foreclosure, to take a pro rata share in real estate held by the trustee. If there had been such notice, it would have destroyed negotiability. If I understand the holding, a negotiable instrument is made nonnegotiable by a contract to which the negotiable instrument does not refer, and such foreclosure in equity may reach out and destroy negotiability and compel the holder of a negotiable instrument to accept something he never contracted to take.
“It seems, however, the more reasonable, ethical and business-like approach is to demand that the restriction upon the right to sue for payment of the note or bond on maturity should appear upon the face thereof.” Guardian Depositors Corp. v. David Stott Flour Mills, Inc., 291 Mich. 180.
Here, though nothing indicates any restraint on the right to sue, yet, on foreclosure, equity may destroy that negotiability which before existed and a bond which is negotiable on its face becomes nonnegotiable, a contract to pay thereupon becomes a contract not to pay, and that which should appear upon the face of the bond is controlled by that of which the bond gave no notice.
Sharpe, North, and McAllister, JJ., concurred with Potter, J. Chandler, J., did not sit. | [
16,
36,
25,
37,
-2,
52,
31,
74,
3,
-4,
-1,
-5,
22,
9,
-14,
-8,
44,
10,
-37,
33,
-27,
1,
-36,
-12,
14,
0,
20,
-58,
4,
-17,
16,
-7,
0,
43,
-23,
-17,
10,
-37,
64,
-13,
-18,
31,
-1,
18,
-47,
-7,
4,
-98,
0,
-11,
7,
23,
65,
10,
-12,
3,
-9,
-19,
-46,
-43,
23,
-65,
32,
-22,
-68,
-12,
9,
38,
32,
-41,
-10,
-36,
7,
-29,
20,
-2,
44,
-1,
-53,
-62,
-26,
-62,
67,
-87,
14,
-5,
4,
22,
-54,
30,
-29,
45,
-18,
1,
-53,
31,
27,
4,
66,
34,
-7,
-43,
-11,
58,
20,
7,
-17,
-54,
4,
5,
29,
-10,
-1,
-5,
-46,
-15,
-44,
18,
-35,
-27,
-34,
-18,
-23,
-61,
14,
51,
26,
-41,
-56,
-8,
-20,
17,
-8,
36,
-44,
13,
-21,
-51,
26,
9,
11,
-11,
-13,
-30,
-7,
-47,
39,
-20,
18,
4,
-24,
-4,
-17,
32,
-10,
-6,
-23,
1,
-13,
-43,
4,
25,
-1,
-10,
-41,
-3,
-58,
62,
-9,
34,
13,
36,
-22,
-26,
-21,
-41,
29,
-16,
-13,
13,
-28,
0,
28,
-2,
20,
-17,
-37,
4,
31,
11,
-5,
1,
-5,
38,
-18,
24,
-11,
24,
15,
2,
-1,
-5,
15,
6,
-17,
-39,
-13,
-5,
8,
44,
-46,
50,
6,
12,
-50,
6,
-18,
17,
38,
-4,
0,
14,
-57,
18,
-29,
-48,
5,
-25,
1,
-4,
-5,
-35,
-20,
52,
10,
17,
41,
23,
-1,
49,
-10,
18,
-15,
8,
-91,
-39,
1,
-5,
24,
-20,
-46,
3,
-7,
78,
22,
23,
-57,
-25,
-39,
-37,
36,
3,
-71,
28,
20,
-35,
1,
-4,
14,
-28,
18,
-9,
32,
64,
17,
3,
-36,
6,
-46,
-84,
-17,
9,
14,
18,
-30,
69,
35,
-9,
-11,
-32,
52,
-22,
10,
9,
30,
21,
-46,
1,
47,
53,
1,
-3,
28,
3,
14,
26,
-20,
4,
-14,
-6,
4,
8,
-4,
14,
41,
23,
39,
7,
35,
-37,
41,
24,
-15,
10,
14,
0,
33,
-29,
-24,
31,
27,
-20,
-6,
26,
20,
17,
9,
-48,
-53,
-1,
10,
34,
24,
17,
56,
-40,
-47,
-4,
-55,
41,
-47,
53,
-46,
44,
-4,
-1,
-4,
16,
-11,
6,
38,
20,
3,
-5,
-42,
-11,
-4,
-39,
-5,
38,
28,
52,
-62,
-9,
-50,
24,
-13,
41,
-19,
27,
-5,
35,
55,
45,
25,
7,
-26,
23,
-15,
16,
-43,
-3,
0,
18,
-24,
-16,
13,
-4,
-22,
-39,
-37,
6,
-50,
-20,
-20,
19,
21,
-29,
4,
46,
19,
30,
-1,
8,
-18,
19,
15,
-1,
28,
8,
-7,
-41,
35,
29,
16,
-50,
-3,
0,
-77,
-4,
-63,
29,
-17,
-22,
0,
4,
-6,
1,
-16,
22,
11,
17,
54,
24,
34,
25,
-14,
1,
30,
26,
-29,
27,
-6,
5,
-1,
-6,
56,
-23,
-15,
19,
22,
3,
58,
-4,
19,
-32,
-25,
-6,
12,
-39,
49,
26,
29,
33,
-28,
32,
5,
31,
9,
31,
-10,
9,
-9,
30,
-35,
-11,
-59,
-27,
0,
-27,
31,
-4,
33,
8,
-41,
-17,
-6,
-41,
-6,
27,
28,
26,
-10,
5,
-5,
-24,
1,
-53,
39,
39,
-4,
-25,
-12,
65,
1,
-3,
34,
-33,
-15,
75,
19,
-17,
-19,
-44,
22,
-4,
18,
60,
23,
-44,
38,
5,
-6,
-9,
-42,
48,
11,
15,
22,
-17,
-59,
30,
-40,
99,
-1,
5,
-5,
-19,
5,
2,
-5,
-29,
-26,
60,
37,
25,
-18,
-15,
-21,
-22,
-21,
15,
34,
-14,
14,
-35,
-13,
-26,
-43,
-1,
7,
-16,
-15,
1,
6,
-31,
15,
0,
7,
-32,
-9,
-36,
-27,
-54,
-2,
18,
2,
24,
-34,
29,
26,
-10,
-15,
-2,
-25,
-61,
34,
16,
-7,
50,
-6,
22,
1,
-30,
4,
-76,
-28,
21,
22,
-2,
1,
-63,
10,
34,
-3,
9,
0,
14,
-5,
19,
-26,
29,
10,
-34,
8,
9,
5,
28,
32,
-13,
-2,
-21,
14,
-48,
1,
6,
-57,
20,
35,
-54,
-11,
22,
-50,
-30,
-19,
-28,
1,
-3,
92,
10,
0,
8,
22,
-25,
57,
-15,
2,
-71,
14,
-65,
43,
-20,
-21,
-36,
45,
8,
-1,
63,
-27,
3,
19,
20,
23,
19,
13,
-1,
-15,
14,
-16,
-9,
-44,
-19,
-10,
8,
-2,
-3,
50,
-2,
6,
38,
40,
12,
-23,
-23,
-6,
-5,
28,
56,
7,
-1,
69,
-66,
-27,
43,
-47,
-11,
-41,
21,
-35,
34,
-11,
3,
10,
-35,
-6,
-17,
-25,
-33,
-12,
-20,
-38,
-55,
34,
-15,
0,
-50,
26,
-24,
-28,
0,
9,
-81,
-5,
12,
-27,
79,
-31,
15,
17,
-53,
-39,
39,
10,
11,
35,
12,
-25,
23,
1,
0,
18,
-11,
-18,
10,
-2,
8,
-50,
16,
-16,
17,
-38,
25,
-16,
21,
40,
6,
-47,
-44,
-16,
-26,
-5,
-23,
-75,
-7,
-24,
-32,
-19,
-19,
65,
-8,
7,
-18,
-11,
-20,
28,
-39,
18,
34,
49,
15,
18,
15,
-29,
-49,
12,
75,
29,
6,
12,
-8,
11,
50,
-45,
16,
4,
11,
-29,
-12,
23,
-21,
-19,
-54,
32,
-35,
1,
22,
-3,
30,
-58,
-18,
-15,
47,
5,
-22,
-19,
-4,
-9,
17,
-10,
7,
30,
-17,
-12,
30,
31,
-14,
14,
26,
52,
-42,
-47,
-39,
18,
-17,
18,
6,
9,
7,
-32,
-8,
-1,
-1,
11,
8,
32,
-44,
-44,
3,
14,
-32,
1,
54,
-20,
0,
31,
-23,
-53,
45,
42,
21,
-37,
28,
27,
29,
-11,
-10,
23,
-4,
-1,
-11,
-7,
6,
-9,
46,
-15,
27,
33,
17,
-23,
25,
-6,
-4,
-76,
45,
-15,
35,
36,
-35,
32,
21,
-14,
-4,
-18,
-15,
15,
40,
-11,
113,
7,
21,
20,
-24,
1,
-31,
-7,
32,
38,
-35,
-27,
27,
4,
-27,
-66,
-24,
11,
-53,
-4,
23,
-9,
18,
-2,
18,
-15,
-18,
12,
-59,
0,
-7,
22,
-12,
-7,
-31,
-16,
-3,
11,
24,
-26,
-6,
4,
-30,
-41,
7,
25,
15,
9,
7,
-42,
3,
-27,
-41,
-28,
-1,
43,
-61,
54,
38,
15,
-30,
-24,
-10,
18,
-7,
-1,
-12,
-51,
-23,
22,
-20,
-24,
-6,
28,
11,
9,
2,
-44,
28,
70,
25,
-42,
-30,
35,
-15,
13,
21,
-54,
-9,
13,
36,
31,
-19,
4,
11,
41,
-4,
-27,
3,
4,
-1,
35,
-23,
-33,
-81,
24,
41,
-25,
15,
-18,
-4,
52,
-4,
28,
46,
-49,
64
] |
Chandler, C. J.
On January 22, 1940, Gordon Jacobson, plaintiff and appellant, followed his wife by walking in a southerly direction on the east side of Fourth street in the city of Iron River. Upon seeing her enter the car of John E. Carlson, defendalnt 'and appellee, plaintiff left the sidewalk and hurried to the street by the use of an alley which intersected the sidewalk at a point about 90 feet from a driveway where the car was parked. He hurried about 45 feet up the street, threw up his arm as the car approached* and was struck or sideswiped by the right side of the car which continued northerly down the street. This suit was brought as a consequence thereof, resulting in a verdict for the defendant, and this appeal followed.
At the trial, an undersheriff, who was immediately called to the scene of the accident, was allowed to testify as to the nature of the questions he asked plaintiff who was then in a dazed condition and unable to answer. Because of plaintiff’s condition, the questions elicited no admissions from him against interest, and although it was inadmissible under these circumstances, it is clearly apparent from the record that no prejudice resulted.
Plaintiff testified that the reason he left the sidewalk at the alley and proceeded up the street was because the sidewalk beyond was covered with deep unshoveled snow. This is contradicted by other wit nesses and left a question for the jury which was presented to them by the judge in his charge as follows:
“There are some provisions of our statute which bear upon the question of negligence and contributory negligence. We will take the question of contributory negligence first. It is one of the provisions of our statute that where sidewalks are provided it shall be unlawful for pedestrians to walk upon the main traveled portion of a highway. Where sidewalks are not provided, pedestrians shall when practicable walk on the left side of the highway, facing traffic which passes nearest. Now, under that provision of the statute, if there was a usable sidewalk along the street at the point of the accident and Jacobson did not use it, but went into the street, he would be himself guilty of negligence, which would prohibit his recovery. The testimony is in dispute, as I recollect, about that, as to whether or not there was a usable sidewalk there, and it is for you to say under the evidence if there was or not. Now, if there was no sidewalk there then Jacobson had the legal right -to walk in the highway on the side upon which he would face traffic. Now, when so walking it was his legal duty to take reasonable care for his own safety. You can see readily the purpose -of that provision of the law. It is a late provision provided by our legislature that people should walk so as to face traffic and, seeing it coming, can step aside. So you see if you find that there was no sidewalk there and Jacobson had the right to be on the highway, then the question comes up to you as to whether or not he used the reasonable care which an ordinarily careful and prudent person would use for his own safety.”
The statute to which the trial court referred is Act No. 318, § 34a, Pub. Acts 1927, as added by Act No. 318, Pub. Acts 1939 (Comp..Laws Supp. 1940, §■ 4726-1, Stat. Ann. 1941 Cum. Supp. §9.1594[1]), which provides:
“Where sidewalks are provided, it shall be unlawful for pedestrians to walk upon the main traveled portion of the highway. Where sidewalks are not provided, pedestrians shall, when practicable, walk on the left side of the highway facing traffic which passes nearest.”
The foregoing provision was enacted as an amendment to the uniform motor vehicle act (Act No. 318, Pub. Acts 1927, as amended [1 Comp. Laws 1929, § 4693 et seq., as amended (Comp. Laws Supp. 1940, § 4693 et seq., Stat. Ann. and Stat. Ann. 1941 Cum. Supp. § 9.1561 et seg.)]), the title to which reads as follows:
“An act to regulate the operation of vehicles on highways; providing for traffic signs and signals; defining the power of local authorities to enact or enforce ordinances, rules or regulations in regard to matters embraced within the provisions of this act; providing for the enforcement of this act and for penalties for violations thereof; to make uniform the law relating to the subject matter of this act and to repeal certain acts and sections of acts.”
Appellant claims that the charge of the court, based on the foregoing quoted amendment, was error in that said amendment is unconstitutional and in violation of Const, of 1908, art. 5, § 21, which provides in part:
“No law shall embrace more than one object, which shall be expressed in its title.”
The rules governing the application of this section of the Constitution are well settled and have been defined in Loomis v. Rogers, 197 Mich. 265, wherein we said:
“While it (the Covert act) contains various related provisions not directly indicated or enumerated in the title, under the construction of this constitutional requirement, as many times reviewed by this court, if the act centers to one main general object or purpose which the title comprehensively declares though in general terms, and if provisions in the body of the act not directly mentioned in the title are germane, auxiliary, or incidental to that general purpose, the constitutional requirement is met.
“A title is but a descriptive caption, directing attention to the subject matter which follows.”
See, also, Michigan Boiler & Sheet Iron Works, for the use and benefit of American Mutual Liability Co., v. Dressler, 286 Mich. 502; Weco Products Co. v. Sam’s Cut Rate, Inc., 296 Mich. 190; Kull v. Michigan State Apple Commission, 296 Mich. 262; Banner Laundering Co. v. State Board of Tax Administration, 297 Mich. 419.
There is no quarrel about the principle, but much question as to its application. The regulation of traffic on the public highways of the State is primarily the responsibility of the State to the public. The use of automobiles and other vehicles and travel by foot on public highways is subject to regulation under the police power and a large discretion is vested in the legislature in its exercise.
The legislature, in passing the vehicle act, was concerned in making the public highways of the State, which are public ways for use of the public in general for passage and traffic without distinction, reasonably safe for public travel, and under the title of the act, without violating the constitutional provision in question, it had plenary power to incorporate in the body of the statute such provisions as would promote the general purpose thereof — the safety of the highways.
The general purpose of the act as expressed in its title is not circumscribed to the manual operation and control of vehicles, but embraces innumerable factors of highway traffic which promote public safety. It could hardly be said that because the title has reference only to the operation of vehicles on highways, provisions designed to promote the security of vehicle traffic or that would prevent others than those operating vehicles from unreasonably impeding or endangering vehicle traffic or obstructing the highway or doing acts to make hazardous or dangerous the operation of vehicles thereon, would not be germane, auxiliary or incidental thereto.
In People v. Thompson, 259 Mich. 109, 115, we said:
“It is well within the purport of the title of the act to include provisions governing the conduct of parties incident to highway accidents.”
In that case it was held that the title was broad enough to cover a provision requiring a driver to render assistance in case of accident, and make a report thereof, since it was germane to the general purpose of the act. And we hold that the amendment here in question is equally germane, auxiliary and incidental to that general purpose.
The judgment is affirmed, with costs to defendant.
Boyles, North, Starr, Butzel, and Sharpe, JJ., concurred with Chandler, C. J. Bushnell, J., concurred in the result. Wiest, J., did not sit. | [
8,
61,
-34,
-8,
-15,
-8,
60,
26,
3,
6,
5,
-16,
67,
-53,
-33,
-4,
-28,
0,
4,
7,
-52,
-60,
14,
-29,
-4,
0,
3,
-21,
-40,
40,
53,
-7,
-23,
1,
2,
23,
67,
15,
3,
43,
27,
-22,
-40,
-31,
31,
10,
6,
-38,
-18,
-4,
30,
15,
30,
15,
20,
12,
22,
87,
-41,
-14,
-20,
-12,
0,
0,
32,
4,
20,
35,
9,
-22,
-66,
27,
-15,
-15,
-5,
52,
5,
15,
-13,
-23,
-34,
25,
57,
23,
4,
-17,
-64,
-23,
6,
-9,
9,
17,
44,
6,
-6,
52,
-28,
0,
13,
-14,
9,
11,
7,
-9,
-4,
10,
-52,
-38,
54,
52,
-8,
18,
3,
39,
11,
-42,
33,
0,
-1,
0,
23,
-23,
18,
7,
-34,
-14,
-9,
8,
43,
-22,
-3,
46,
23,
-4,
6,
-28,
-34,
-65,
47,
20,
-34,
-2,
-14,
18,
-5,
31,
-13,
43,
-45,
-31,
-57,
8,
26,
-60,
-3,
0,
21,
-22,
43,
27,
-36,
-33,
33,
15,
-33,
13,
-44,
42,
-32,
-23,
52,
0,
6,
-77,
24,
12,
9,
34,
-56,
14,
12,
21,
16,
12,
-71,
-36,
-9,
-5,
-13,
27,
37,
-17,
6,
-33,
4,
55,
0,
-18,
5,
-74,
9,
13,
-15,
-35,
-11,
15,
-9,
12,
5,
3,
-38,
10,
-12,
-28,
3,
44,
-15,
-58,
9,
-17,
7,
18,
20,
0,
-35,
-30,
20,
-30,
-21,
-13,
39,
15,
-44,
7,
-39,
17,
54,
-24,
7,
-11,
10,
-16,
17,
-7,
-5,
29,
-51,
7,
-18,
10,
21,
-47,
-63,
-1,
-38,
-41,
24,
-38,
7,
15,
31,
63,
-6,
13,
22,
13,
0,
9,
-45,
-45,
-27,
13,
6,
33,
-38,
-60,
16,
24,
-4,
48,
3,
-30,
20,
-19,
-4,
46,
-28,
39,
11,
-46,
52,
-58,
3,
-42,
16,
28,
43,
0,
-53,
-6,
59,
-6,
-22,
-10,
0,
-19,
-1,
-51,
12,
27,
-2,
14,
11,
-41,
35,
50,
-19,
0,
26,
-33,
-8,
26,
-26,
-20,
-1,
35,
4,
-3,
7,
4,
11,
16,
-21,
57,
25,
-30,
0,
13,
1,
25,
-28,
25,
-27,
-31,
-3,
-11,
25,
39,
0,
4,
-27,
-31,
-25,
-28,
-50,
10,
33,
-23,
11,
2,
21,
-56,
-7,
-8,
-37,
-43,
0,
-20,
-4,
44,
8,
-29,
-23,
9,
-28,
-67,
50,
-8,
16,
49,
-11,
-47,
24,
3,
-33,
-25,
-34,
-14,
-83,
-8,
-19,
3,
37,
15,
10,
6,
18,
0,
-12,
-23,
-15,
18,
27,
7,
-14,
-42,
9,
-57,
-1,
-4,
-51,
-11,
45,
6,
32,
5,
2,
44,
-14,
-17,
23,
34,
62,
21,
41,
-32,
-31,
-3,
-37,
-6,
21,
15,
21,
-6,
24,
-22,
-4,
-23,
2,
-15,
-18,
-22,
10,
8,
-3,
-5,
-27,
39,
-2,
-26,
22,
51,
25,
44,
-32,
5,
0,
17,
28,
0,
10,
-19,
-5,
-46,
22,
-42,
-49,
12,
16,
-9,
37,
13,
-6,
8,
3,
-11,
8,
5,
-40,
-15,
-71,
-7,
40,
29,
-15,
-60,
24,
34,
0,
12,
60,
15,
-31,
-19,
5,
-34,
-19,
16,
-5,
-4,
-56,
-2,
-61,
-12,
16,
-23,
48,
50,
24,
-13,
-20,
-47,
-7,
7,
-13,
1,
22,
-1,
1,
-11,
19,
-11,
-20,
-17,
4,
-23,
28,
-7,
-37,
-42,
29,
-3,
-42,
22,
20,
-10,
-23,
12,
37,
-34,
-14,
31,
-20,
4,
-2,
-12,
-3,
25,
31,
14,
0,
4,
-2,
-21,
16,
-39,
11,
-32,
-8,
0,
6,
40,
14,
5,
6,
36,
-17,
-1,
47,
-36,
-46,
58,
31,
-39,
-55,
34,
-14,
29,
-52,
-5,
-14,
13,
-51,
-40,
11,
50,
-8,
13,
-15,
37,
-61,
21,
9,
3,
35,
0,
48,
11,
2,
-35,
30,
-21,
-40,
15,
36,
-28,
-14,
-47,
46,
-21,
27,
-2,
-40,
47,
-32,
-19,
-15,
-14,
28,
-23,
-42,
-8,
24,
12,
-15,
18,
3,
53,
-69,
-49,
-5,
26,
-48,
11,
29,
-46,
28,
32,
-30,
34,
43,
10,
26,
17,
15,
-42,
-1,
-13,
-45,
-48,
20,
8,
12,
5,
28,
6,
-38,
-14,
-43,
-15,
-2,
0,
0,
-46,
-78,
2,
-37,
-15,
-9,
24,
3,
-20,
21,
53,
20,
16,
-9,
41,
27,
32,
0,
-14,
19,
-26,
12,
-32,
-22,
36,
64,
-19,
-42,
19,
9,
3,
-62,
24,
69,
-11,
18,
12,
-42,
-12,
-23,
1,
-11,
-15,
10,
0,
-30,
-3,
-28,
53,
10,
-27,
0,
62,
13,
-14,
-9,
15,
57,
-16,
-11,
-41,
32,
17,
17,
-18,
3,
0,
16,
2,
-22,
-12,
8,
9,
46,
-44,
-8,
-55,
20,
15,
-5,
72,
-49,
-19,
23,
-27,
-11,
1,
-6,
25,
26,
-2,
-10,
-24,
17,
-4,
-28,
-16,
23,
-35,
21,
-15,
-24,
1,
-1,
-2,
-14,
0,
-40,
9,
9,
-47,
-68,
45,
-2,
-23,
39,
1,
-20,
2,
0,
6,
-4,
28,
-2,
12,
28,
37,
-33,
-11,
-9,
15,
-9,
-16,
-23,
-26,
32,
50,
-28,
7,
2,
47,
50,
-18,
-12,
58,
40,
-9,
16,
-1,
-2,
-69,
-43,
14,
41,
26,
-7,
3,
15,
-15,
-6,
-30,
35,
-24,
-8,
-34,
42,
-28,
19,
-24,
-18,
66,
-35,
12,
28,
30,
-6,
-26,
22,
39,
-55,
25,
17,
-18,
-34,
-18,
15,
30,
-5,
31,
32,
5,
-44,
-4,
-30,
-1,
-2,
-5,
0,
-26,
-48,
-49,
34,
-31,
-50,
8,
10,
-36,
-5,
63,
6,
4,
6,
30,
-3,
-33,
40,
-17,
-2,
-27,
19,
44,
-26,
-28,
5,
7,
-8,
32,
-25,
25,
12,
-15,
-77,
0,
-65,
62,
51,
-18,
0,
23,
18,
11,
25,
-8,
21,
17,
16,
-20,
-7,
-8,
21,
24,
16,
0,
-42,
33,
21,
5,
0,
19,
-9,
-4,
-30,
22,
-12,
20,
-10,
49,
-5,
19,
-3,
-20,
99,
5,
-7,
-36,
-65,
-5,
-9,
-6,
-32,
1,
-21,
-63,
13,
-3,
-54,
35,
23,
-30,
-46,
51,
3,
8,
-40,
-24,
8,
-13,
4,
-2,
37,
7,
37,
-4,
31,
-42,
-18,
20,
-6,
-12,
-2,
9,
11,
11,
-29,
8,
-23,
-11,
31,
0,
35,
24,
34,
9,
0,
-26,
-66,
26,
-61,
5,
7,
26,
10,
26,
-26,
1,
-14,
-35,
-1,
-15,
50,
32,
49,
15,
3,
25,
20,
-27,
-56,
-5,
12,
-25,
26,
56,
-35,
0,
19,
-4,
18,
-8,
14,
36
] |
Bttshnell, C. J.
Plaintiff, on December 19,1936, at about 12:30 a.m., was struck by a car owned and driven by defendant. He was then walking west across North Saginaw street in the city of Flint, in the area between East and West Edmund streets. The corner of North Saginaw and Edmund is a “jog” intersection, East Edmund being some distance north of West Edmund.
Plaintiff had gone to a tavern on the west side of North Saginaw street about 11 p.m., where he had two bottles of beer. About an hour later he crossed the street to look at Christmas trees being sold on a vacant lot. He had previously picked out a tree and not finding it started to re-cross the street. He “stood on the curb waiting for traffic to thin out a bit,” stepped down, looked south and saw a car coming from the south about 250 feet away. He continued his course, looked to the north and again to the south and again saw defendant’s auto about 130 feet away. He looked to the north again, continued walking, and when he looked south again “the car was right on me” when “I was between the curb and the east rail of the street car track.”
Defendant testified that he had lived in the city of Flint for many years and.was familiar with North Saginaw street and that he was an experienced driver. He said he was driving at about 25 to 26 miles per hour at the time of the accident, was-just “cruising along,” and liked the solitude of midnight driving alone; that his brakes and lights were good and he could see 150 to 200 feet ahead. He said he did not see the pedestrian before he hit him, and that after the accident the top of the hood of his auto was bent in, the radiator ornament broken off, the grille dented on the right side in front and the front fender had its side dented. He heard glass but did not feel a jolt. He said:
“It looked to me like a big sheet of paper blew over that side of the car. Even after I had struck the man, damaging my car, I didn’t think I had struck a man, and thought it was only a piece of paper lopping over my car. I stopped, come behind the car, — in about 5 or 8 feet — and there was the man there. I could not give an idea in feet how far I went after the impact. I stopped reasonably soon.”
The case was tried by the court sitting without a jury. Plaintiff, who testified in his own behalf, called the defendant as his witness under the statute (3 Comp. Laws 1929, § 14220 [Stat. Ann. § 27.915]), and produced several other witnesses. Defendant called a gasoline station attendant who said he saw a man standing at the curb south of his station and “the next thing I saw he was in the air. ”
The trial judge based decision for plaintiff upon two recent cases involving injuries to pedestrians on this same street and under somewhat similar circumstances. Orme v. Farmer, 268 Mich. 425, and Burton v. Yellow & Checker Cab & Transfer Co., 283 Mich. 384. Judgment was entered for plaintiff in the sum of $3,713.30.
The questions raised on. appeal are the claims that defendant was not guilty of any negligence which was the proximate cause of the accident, and plaintiff was guilty of contributory negligence as a matter of law and of fact.
“We have repeatedly said in cases tried without a jury that the trial judge is the trier of the facts and may give such weight to the testimony as in his opinion it is entitled to. In such cases we do not reverse unless the evidence clearly preponderates in the opposite direction.” Vannett v. Public Service Co., 289 Mich. 212, 218.
We find no reversible error. The law of the cited cases was correctly applied by the trial judge.
The judgment is affirmed, with costs to appellee.
Sharpe, Chandler, North, McAllister, Wiest, and Butzel, JJ., concurred. The late Justice Potter took no part in this decision. | [
-33,
38,
0,
17,
-20,
-59,
-6,
0,
3,
0,
-14,
-14,
23,
-47,
23,
0,
23,
1,
-17,
-22,
-11,
-64,
-6,
-22,
-26,
-31,
-12,
-64,
-25,
-1,
14,
-9,
23,
-40,
-38,
46,
49,
-12,
21,
50,
15,
2,
3,
-48,
15,
-35,
16,
-46,
-21,
-54,
-40,
-14,
2,
-15,
34,
-17,
-9,
31,
-32,
14,
31,
-20,
45,
-24,
-23,
-20,
40,
48,
37,
1,
-52,
43,
10,
10,
1,
24,
9,
5,
-8,
-2,
-32,
-10,
70,
36,
4,
-32,
-9,
21,
-50,
-35,
4,
-18,
7,
-7,
36,
6,
-34,
-33,
3,
18,
-62,
22,
-40,
-5,
-46,
6,
-14,
-60,
-9,
2,
-10,
35,
37,
50,
13,
-56,
29,
-6,
86,
21,
24,
-44,
22,
-2,
-22,
13,
-23,
-12,
-19,
-32,
47,
41,
50,
32,
13,
-34,
-9,
-24,
-37,
-5,
-7,
-12,
-27,
57,
-14,
11,
16,
70,
-25,
-4,
-41,
3,
16,
9,
-10,
-22,
-2,
-9,
61,
-55,
-19,
-13,
53,
45,
-6,
6,
-55,
23,
-9,
6,
-22,
-15,
45,
-30,
39,
18,
-14,
-28,
-39,
-23,
2,
4,
47,
7,
-25,
-86,
-3,
26,
19,
-10,
34,
63,
-24,
-41,
-34,
48,
-17,
-31,
-17,
-38,
64,
-55,
-20,
-23,
-8,
-37,
45,
16,
51,
-15,
-1,
-27,
17,
7,
36,
-22,
23,
-28,
62,
-67,
-6,
-42,
26,
-15,
-17,
-13,
-49,
-54,
-21,
-9,
44,
-19,
-37,
0,
-18,
-12,
38,
-54,
37,
-3,
29,
22,
-11,
21,
-9,
13,
-37,
17,
-6,
15,
25,
8,
-20,
-34,
0,
19,
6,
-23,
39,
30,
8,
55,
-18,
28,
36,
0,
10,
44,
10,
-57,
-31,
-39,
19,
9,
-48,
-34,
7,
-4,
42,
60,
7,
10,
-26,
0,
33,
35,
-25,
11,
-24,
-67,
26,
-7,
7,
34,
11,
34,
58,
-25,
-55,
27,
25,
1,
-51,
30,
25,
-25,
24,
-17,
2,
16,
1,
-53,
0,
-11,
43,
48,
36,
30,
50,
-27,
24,
76,
-73,
12,
-10,
71,
-29,
14,
-72,
-23,
29,
35,
-8,
48,
-30,
-63,
7,
14,
41,
32,
-21,
19,
-15,
86,
0,
26,
29,
7,
-20,
-30,
-94,
-63,
39,
-57,
-17,
33,
35,
-43,
3,
4,
17,
-40,
-2,
50,
-22,
-51,
20,
-36,
-4,
53,
-1,
4,
-7,
26,
-39,
-66,
4,
-12,
-59,
98,
34,
-17,
-8,
-24,
31,
-1,
-36,
-71,
-26,
13,
-47,
20,
21,
8,
28,
32,
-7,
7,
-34,
-1,
-17,
28,
-5,
21,
-39,
22,
26,
12,
9,
-24,
-43,
-18,
10,
31,
5,
11,
37,
-5,
-43,
-38,
2,
71,
-33,
-40,
31,
5,
-4,
0,
7,
27,
65,
45,
21,
4,
14,
-16,
-29,
-54,
0,
-38,
-9,
-41,
43,
12,
54,
9,
-55,
7,
10,
8,
6,
6,
27,
20,
-28,
24,
22,
23,
-6,
-10,
0,
-50,
-30,
-12,
-20,
-27,
-37,
-34,
-9,
-8,
24,
25,
-19,
13,
-34,
-35,
9,
-20,
-2,
9,
-83,
3,
15,
-10,
-44,
-17,
-11,
-21,
1,
15,
58,
27,
-14,
14,
-19,
26,
-59,
40,
-28,
-36,
-28,
-4,
-128,
6,
38,
-25,
31,
-9,
-48,
-40,
17,
-33,
-27,
-36,
37,
5,
-21,
-13,
7,
-35,
-7,
36,
31,
35,
-31,
-9,
22,
-15,
-22,
-52,
25,
-54,
-30,
45,
27,
-20,
-16,
42,
-6,
18,
20,
24,
-2,
-27,
-4,
-42,
-13,
44,
45,
20,
18,
-12,
-23,
-44,
19,
5,
11,
-20,
-25,
12,
-6,
7,
25,
18,
26,
22,
-12,
23,
37,
-36,
-67,
38,
39,
-56,
-21,
35,
-19,
-3,
-65,
-14,
9,
19,
-24,
48,
-39,
16,
19,
11,
-44,
29,
-5,
36,
8,
8,
34,
20,
30,
5,
1,
-35,
43,
-30,
-12,
41,
43,
21,
-39,
-20,
12,
8,
5,
-5,
-2,
17,
-32,
1,
-13,
3,
3,
-6,
37,
-13,
25,
23,
-9,
-3,
-3,
25,
-64,
-39,
-57,
-6,
-37,
8,
3,
-21,
51,
56,
-39,
-7,
8,
3,
50,
-10,
1,
-3,
-39,
10,
-32,
-6,
-38,
27,
-15,
25,
-3,
5,
-14,
-6,
-43,
0,
34,
16,
-71,
-83,
-15,
-24,
11,
9,
18,
34,
7,
-10,
8,
-36,
14,
5,
-47,
41,
41,
-1,
50,
3,
24,
-6,
39,
-8,
-19,
-17,
51,
-53,
-19,
51,
-36,
-18,
-18,
20,
48,
-18,
-27,
-15,
-2,
-40,
-22,
-21,
-47,
9,
43,
-22,
10,
15,
44,
24,
17,
-10,
30,
52,
48,
-31,
-34,
63,
-33,
-15,
-15,
-58,
43,
-44,
-6,
1,
-12,
8,
64,
-4,
-24,
4,
-22,
-46,
51,
22,
-42,
-46,
-34,
5,
15,
-34,
-25,
-46,
-4,
30,
14,
18,
-27,
26,
34,
12,
31,
-25,
40,
13,
-54,
-9,
-13,
0,
67,
-5,
-14,
6,
17,
22,
6,
-43,
-53,
-10,
-8,
-28,
-52,
-7,
5,
-39,
25,
-24,
-22,
-5,
25,
14,
22,
9,
15,
19,
38,
-11,
17,
-19,
35,
-38,
-6,
-8,
65,
7,
72,
-2,
-2,
49,
38,
43,
32,
4,
32,
29,
70,
26,
8,
13,
37,
-42,
14,
-10,
34,
11,
-32,
13,
7,
5,
-16,
-15,
-14,
16,
-48,
-42,
4,
-35,
35,
34,
13,
28,
-38,
32,
38,
1,
2,
10,
57,
46,
-42,
7,
12,
3,
32,
14,
-5,
3,
-27,
-17,
-13,
-25,
-27,
25,
-50,
5,
-15,
35,
-31,
-59,
-86,
0,
24,
-47,
38,
-10,
-58,
45,
31,
48,
20,
1,
8,
-5,
31,
-11,
-5,
-29,
-14,
-72,
60,
34,
-11,
-16,
-29,
-35,
-12,
41,
-16,
-7,
20,
3,
-67,
-22,
-36,
53,
7,
-30,
-13,
20,
0,
30,
-18,
-21,
1,
-15,
-32,
10,
-4,
-6,
-7,
29,
31,
0,
-52,
0,
36,
-28,
-20,
16,
-19,
-3,
6,
38,
-42,
27,
-1,
47,
-7,
9,
-56,
-20,
5,
1,
33,
-32,
-25,
19,
-2,
31,
-39,
30,
-4,
-18,
-10,
-20,
-60,
49,
18,
3,
-9,
73,
-56,
-48,
-18,
-43,
-1,
11,
50,
41,
41,
11,
51,
11,
43,
-33,
-16,
23,
8,
0,
-30,
13,
1,
-38,
-16,
29,
2,
-52,
-28,
-1,
-14,
33,
5,
-51,
21,
-55,
-57,
31,
-57,
0,
-27,
7,
20,
-2,
58,
25,
25,
-15,
-8,
-17,
2,
16,
15,
-28,
31,
56,
66,
10,
-20,
18,
-17,
-31,
56,
62,
-49,
3,
8,
-44,
3,
2,
1,
39
] |
North, J.
Each of these litigants claimed an unliquidated indebtedness from the other but did not agree as to the balance which plaintiff claimed was due to her. At least two or three unsuccessful attempts were made to adjust their differences and fix definitely the amount due from defendant to plaintiff. Finally, on May 14, 1938, a settlement was reached, obviously by way of compromise. The agreed balance due from defendant to plaintiff was $31.82, and each of the parties signed a written memorandum worded as follows: “Balance due $31.82, May 14, 1938.” Plaintiff claims that defendant promised to pay this balance “the following week when he got his milk check. ’ ’ This was not done, but on June 3, 1938, defendant went to plaintiff’s home and there paid her $10. According to her testimony on that occasion the following conversation occurred between the parties:
“And I said, ‘When can you pay any more than that?’ He said, 'Why, next week I am going to sell some calves,’ and he says, 'I will have some more money for you.’ I said, ‘Will I come and get it or will you bring it to me?’ He says, ‘I will bring it to you.’ That was the whole conversation.”
No further payments having been made, plaintiff commenced suit by summons in justice court July 16, 1938. From the justice court there was an appeal to the circuit court. In accordance with her bill of particulars plaintiff sought to recover a total of $249.10. Defendant under the plea of general issue asserted the parties' had reached a settlement and that there was due plaintiff only the unpaid balance agreed upon in the settlement, which balance after the $10 payment was $21.82. Plaintiff asserted that since defendant had not lived up to the terms of their compromise settlement, she was not bound thereby, and was entitled to recover in accordance with her bill of particulars. The circuit judge rendered judgment in favor of plaintiff and against defendant in the sum of $236.60. Leave having been granted, defendant has appealed.
In effect the defendant testified that at the time the $10 payment above noted was made it was understood between these parties that- he would pay the balance agreed upon on July 25,1938, that being the time when .he would receive his July milk check. As noted above plaintiff instituted her suit prior to July 25th. It is plain from the finding* of the circuit judge, who tried the case without a jury, that he accepted plaintiff’s testimony in preference to that of defendant, and in so doing reached the conclusion that defendant had failed to make payment to plaintiff in accordance with the terms of their compromise settlement; and that even as modified, the understanding reached between the parties was that defendant would make plaintiff a further payment within the next week after June 3,1938, when he was “going to sell some calves.” Admittedly defendant did not make such a payment; and because of this default the circuit judge held plaintiff was no longer bound by the compromise settlement.
As noted by the circuit judge in his findings, a compromise settlement performed in accordance with its terms becomes an accord and satisfaction. In his opinion he quoted the following:
“An unliquidated demand can be satisfied by the payment of an amount smaller than its actual value.
“A creditor who, in settling the amount of a disputed claim, agrees with the debtor upon a certain sum, and as a part of the agreement accepts a less sum in full payment, discharges the whole demand. ’ ’ Wheeler v. Baker (syllabi), 132 Mich. 507.
But this record sustains the finding of the circuit judge that defendant did not make payment in accordance with the compromise settlement agreement; and the circuit judge correctly concluded that decision herein is controlled by the following authorities and others of like character.
“Although a compromise parol agreement, if otherwise valid, may supersede or take the place of one theretofore entered into in writing, failure to make payment of the amount agreed upon leaves such agreement a mere executory accord without satisfaction, and as such it constitutes no bar to the enforcement of the original debt or claim.” Palmerlee v. Republic Acceptance Corp. (syllabus), 216 Mich. 692.
“Nothing short of the fulfillment of an agreement of compromise will discharge the original demand. If the agreement of compromise is breached by what is in effect a failure or refusal to perform, the original cause of action is revived, and the other party may elect to regard the compromise as rescinded and proceed upon the original demand.” 11 Am. Jur. p. 275.
In Stadler v. Ciprian, 265 Mich. 252, quoting from Burr’s Damascus Tool Works v. Peninsular Tool Manfg. Co., 142 Mich. 417, we said:
“It is the general and well-settled rule that an accord cannot be made a successful defense unless fully performed.”
■ The supreme court of the United States has expressed itself on this question as follows:
“Where a controverted case was, by agreement pi the parties, entered settled, and the terms of settlement were that the debtor should pay by a limited day, and the creditor agreed to receive a less sum than that for which he had obtained a judgment ; and the debtor failed to pay on the day limited, the original judgment became revived in full force. ’ ’ Early v. Rogers (syllabus), 16 How. (57 U. S.) 599.
“It is not enough that there be a clear agreement or accord and a sufficient consideration; but the agreement or accord must be executed before it can be pleaded as an accord and satisfaction. If part of the consideration agreed on be not performed, the whole accord fails.” First National Bank of Arkansas City v. Leech, 36 C. C. A. 262 (94 Fed. 310).
See, also, Brown v. Spofford, 95 U. S. 474, 484, and Shubert v. Rosenberger, 123 C. C. A. 256 (204 Fed. 934, 45 L. R. A. [N. S.] 1062).
Appellant rightly points out that incident to the settlement agreement there is no claim of fraud, mistake or duress. He further urges that the settlement agreement amounted no more than to bringing about between these parties an account stated and that time of payment was not of the essence of the settlement agreement. We are not in accord with the contention that the settlement agreement amounted to no more than an account stated and that an agreed time for payment was not of the essence of the agreement.
In controversies of this character the problem is the interpretation to be given the compromise settlement agreement' of the parties. In Belrose v. Kanitz, 284 Mich. 497, it was said:
“The distinction between an agreement which is, per se, to satisfy and extinguish an existing debt, and an agreement, the performance of which is to have that effect, must not be overlooked. The former operates as an immediate satisfaction of the debt; the latter, only when performed. White v. Gray, 68 Me. 579.”
In Henderson v. McRae, 148 Mich. 324, this court said:
“In matters of accord and satisfaction, there is a well-defined and easily-recognized distinction between two classes of agreements:
“1. Where the agreement of the creditor is to accept the performance of the debtor’s new promise or agreement in satisfaction of the demand.
“2. Where such promise or agreement itself, based upon sufficient consideration, is accepted in satisfaction of the demand. 2 Chitty on Contracts (11th Am. Ed.), p, 1124.
“And in this class of cases it must clearly appear that the intention of the party was to accept such promise, and not the performance, in satisfaction of the original demand. In the first class of cases the accord must be fully executed to bar an action on the original demand. 1 Cyc. p. 312, and cases cited. In the second class the original demand is extinguished, and cannot be the foundation of an action. ’ ’
In the first class stated above, the promise of the creditor is to discharge the old debt when the debtor’s new promise is performed. When the debtor fails to perform his new promise, or is materially in default, the creditor need not perform his promise to discharge the old debt, but may rescind the compromise agreement and sne on the original obligation. The presumption is that the parties intended that the old debt not be discharged until the debtor’s new promise be performed. Breitung v. Lindauer, 37 Mich. 217; Henderson v. McRae, supra; Stadler v. Ciprian, supra.
On this record we must affirm the determination of the circuit judge that the agreed time for payment was as asserted by plaintiff, and that the agreed time of payment in the compromise settlement between these parties was of the essence of their agreement. There is nothing in this record to indicate that a present discharge of the old debt was intended at the time the compromise agreement was made. There was no error in the trial court’s holding that defendant’s neglect to pay at the agreed time was a material breach of the compromise agreement.
The judgment entered in the circuit court is affirmed, with costs to appellee.
Bushnell, O. J., and Sharpe, Chandler, McAllister, Wiest, and Butzel, JJ., concurred. The late Justice Potter took no part in this decision. | [
17,
16,
-8,
36,
-13,
-53,
59,
22,
-15,
60,
-1,
20,
9,
42,
-42,
43,
-9,
-65,
46,
-11,
-60,
-57,
-23,
41,
20,
36,
-2,
-50,
9,
22,
0,
19,
-38,
21,
-74,
-14,
15,
7,
12,
12,
1,
-69,
35,
19,
-23,
-12,
-60,
-41,
31,
-19,
27,
-63,
47,
-24,
9,
16,
-32,
17,
-51,
-10,
1,
-16,
51,
14,
-30,
10,
-40,
14,
20,
-8,
-18,
11,
-9,
-52,
24,
-27,
-6,
-15,
3,
-23,
24,
-16,
16,
26,
17,
2,
-9,
-9,
16,
27,
-26,
69,
-42,
24,
15,
27,
-41,
12,
15,
10,
-22,
-68,
-56,
-9,
18,
23,
-61,
-41,
3,
88,
-15,
3,
61,
-23,
-14,
-6,
-57,
6,
-8,
-41,
-15,
38,
15,
50,
-7,
46,
-78,
-14,
8,
-7,
17,
-20,
-27,
38,
-13,
-30,
8,
-35,
15,
5,
30,
-7,
-22,
-41,
19,
10,
-52,
-14,
-10,
19,
-14,
4,
42,
34,
0,
-31,
37,
-55,
6,
-33,
26,
-12,
-7,
-24,
14,
-69,
18,
-5,
50,
-35,
-7,
21,
-25,
-23,
-2,
22,
12,
-102,
-22,
-14,
-11,
6,
-21,
-15,
22,
-9,
-1,
-5,
-1,
-14,
0,
-9,
-21,
36,
20,
-14,
0,
-12,
52,
4,
-3,
-24,
6,
28,
-22,
5,
42,
-48,
-22,
-14,
-35,
-49,
2,
-49,
-57,
5,
13,
5,
-41,
10,
-8,
18,
-44,
11,
-66,
-43,
39,
-14,
25,
22,
-35,
18,
-22,
30,
26,
9,
57,
1,
-9,
-15,
-35,
-15,
-38,
-43,
47,
17,
-65,
3,
-26,
9,
-22,
16,
4,
59,
-19,
0,
13,
18,
-7,
-20,
-31,
21,
-2,
49,
-11,
-49,
-14,
23,
18,
20,
24,
-41,
28,
6,
-3,
-56,
-21,
11,
-17,
12,
6,
-18,
-19,
-13,
25,
-12,
-40,
-5,
22,
11,
54,
-10,
-13,
-4,
47,
81,
-25,
23,
8,
44,
-71,
-70,
27,
-13,
3,
-33,
-6,
-33,
-27,
-11,
22,
31,
-3,
-28,
66,
-2,
-13,
9,
19,
-21,
0,
-2,
21,
64,
27,
2,
-6,
-2,
-25,
-3,
-2,
8,
-32,
-14,
-59,
-13,
-5,
37,
-6,
-25,
47,
35,
16,
15,
-22,
-1,
34,
-4,
-41,
28,
-34,
-10,
-25,
26,
37,
-2,
15,
-36,
-2,
25,
25,
-46,
1,
-67,
0,
0,
52,
-34,
1,
62,
4,
34,
0,
-61,
-55,
2,
-34,
37,
-1,
19,
-14,
-33,
-22,
49,
16,
9,
-46,
-12,
-13,
5,
-8,
-25,
1,
7,
78,
2,
16,
-35,
-47,
-9,
27,
-16,
31,
-24,
-11,
15,
-18,
-63,
-27,
20,
52,
-12,
4,
-10,
-37,
-16,
51,
-9,
24,
5,
7,
27,
28,
-23,
50,
-40,
86,
-11,
-4,
-2,
-10,
14,
-44,
-35,
59,
7,
-30,
-7,
-25,
-16,
60,
41,
41,
56,
10,
30,
-29,
-32,
59,
36,
21,
-21,
17,
7,
-43,
-15,
8,
-20,
26,
-57,
-24,
13,
7,
31,
32,
-40,
0,
48,
8,
59,
-20,
6,
67,
26,
-16,
40,
29,
-46,
34,
-1,
-22,
-12,
11,
-15,
-1,
-18,
-27,
-46,
5,
43,
48,
-26,
-58,
40,
33,
-16,
3,
-35,
-8,
23,
-22,
63,
66,
-26,
37,
12,
8,
-94,
0,
-10,
-24,
-3,
48,
-31,
32,
-15,
42,
54,
-32,
34,
-36,
56,
-40,
2,
-48,
-34,
5,
-10,
9,
-10,
-24,
-14,
-42,
-4,
-4,
14,
22,
28,
-12,
-14,
-32,
43,
32,
31,
9,
6,
-9,
-20,
-22,
27,
33,
-44,
34,
20,
-13,
16,
45,
15,
-15,
-20,
8,
39,
18,
-4,
66,
-11,
17,
-11,
3,
6,
-30,
11,
15,
42,
12,
10,
-54,
-20,
-17,
-9,
22,
-8,
-7,
-27,
0,
30,
62,
3,
-1,
13,
5,
4,
-12,
11,
41,
-51,
-16,
-27,
25,
22,
44,
11,
-40,
18,
-5,
-5,
-81,
53,
0,
-31,
26,
14,
33,
21,
0,
-49,
22,
-3,
19,
12,
14,
-4,
-8,
-3,
12,
-31,
19,
-11,
-35,
-9,
31,
-59,
61,
10,
-29,
19,
-25,
26,
-28,
22,
-13,
-13,
-4,
10,
-37,
1,
-46,
-10,
-32,
-27,
20,
50,
61,
13,
-16,
-1,
9,
9,
-12,
-17,
36,
-19,
-45,
8,
-14,
2,
74,
-8,
9,
22,
7,
-82,
32,
-12,
38,
-9,
-33,
39,
-19,
15,
-1,
7,
20,
31,
-45,
35,
3,
-23,
0,
26,
-5,
-7,
-27,
5,
25,
-25,
44,
46,
-26,
14,
38,
-57,
21,
-40,
7,
-29,
-19,
11,
39,
21,
20,
-39,
-8,
-9,
11,
20,
-1,
48,
6,
-1,
15,
-12,
81,
14,
4,
0,
40,
-16,
20,
11,
25,
65,
-2,
18,
-3,
45,
0,
32,
-5,
-21,
-3,
25,
-19,
10,
3,
-15,
13,
21,
-13,
10,
-11,
-19,
-3,
23,
-5,
-17,
-7,
-45,
-27,
-1,
-16,
11,
0,
11,
-9,
0,
8,
-49,
-2,
-31,
-41,
-45,
-9,
8,
53,
3,
16,
-9,
10,
6,
22,
-25,
25,
-43,
25,
-27,
65,
-23,
29,
78,
-14,
-37,
20,
-53,
-21,
17,
16,
-19,
-46,
-18,
-34,
-22,
22,
-10,
12,
35,
-30,
45,
-21,
53,
-19,
-63,
-5,
-12,
-37,
22,
-33,
-30,
3,
14,
-21,
30,
19,
-1,
14,
38,
-34,
5,
-29,
9,
14,
-39,
-12,
28,
7,
36,
19,
-20,
-10,
-5,
-7,
-46,
-24,
-17,
35,
-6,
-34,
32,
-15,
-22,
-2,
-26,
18,
6,
-33,
-40,
-20,
-10,
-25,
9,
-46,
-44,
-34,
9,
22,
10,
-12,
30,
4,
2,
9,
-18,
-3,
3,
33,
61,
28,
-51,
32,
-52,
-43,
-20,
7,
38,
-14,
-2,
-31,
0,
-22,
31,
-37,
17,
-9,
0,
39,
-48,
-10,
-61,
-39,
2,
33,
32,
-12,
-25,
20,
-5,
-8,
7,
-12,
35,
23,
-51,
5,
-18,
-20,
25,
10,
4,
0,
20,
1,
-25,
-29,
5,
49,
38,
1,
30,
29,
21,
0,
-52,
-30,
2,
-5,
8,
-24,
-66,
34,
3,
-7,
6,
12,
-28,
-28,
-13,
5,
-15,
0,
6,
15,
35,
-32,
40,
70,
-92,
-21,
15,
-1,
18,
-15,
31,
40,
-9,
31,
-18,
0,
32,
-55,
-22,
39,
-36,
-17,
-27,
14,
-23,
40,
0,
-17,
5,
27,
-4,
-36,
-9,
-7,
35,
1,
-17,
-56,
20,
72,
15,
-10,
13,
34,
-29,
44,
-11,
7,
-37,
0,
-36,
25,
-22,
-52,
-65,
10,
53,
11,
13,
-20,
-32,
7,
47,
21,
70,
-12,
-10,
-5,
-14,
8,
-30,
31,
29
] |
Sharpe, J.
Plaintiff as administrator of the estate of Mary K. Wesch brings this action against Elsie K. Bissenger and others to recover assets of the estate.
On September 17, 1934, Mary K. Wesch executed an instrument purporting to be a deed to her sister Elsie K. Bissenger, which deed was recorded March 4, 1938. Mary K. Wesch died March 7, 1936.
Mary K. Wesch was the owner of a homestead; she had been sick several years prior to her death. Defendant Elsie K. Bissenger was a resident of Van Burén county, Michigan. Every time that Mrs. Wesch became seriously ill, she would send for her sister who would come and stay with her, doing the housework and generally maintaining the home. At one time Mrs. Bissenger stayed nearly a year caring for her sister, and at other times she would stay a few weeks or a few months.
On September 17, 1934, Mrs. Wesch went to the office of her attorney and there executed a warranty deed to her sister, and on the 1st day of August, 1935, executed a will in which she gave all her property to her sister Elsie K. Bissenger. After Mrs. Wesch executed the deed, she gave it to her nephew Joseph Knoll to have recorded, but the register of deeds refused to record the deed owing to the fact that there were unpaid taxes on the property. The deed was recorded at a later date.
April 2, 1936, Mrs. Bissenger filed petition for probate of will in which real estate was originally listed at $3,500, this figure was later erased and the word “none” superimposed. Plaintiff was appointed administrator with will annexed of the estate. The inventory showed assets in the amount of $903.50 and claims totalling $6,028.18 were allowed by the probate court against the estate. Plaintiff brings this action to recover assets of the estate. The trial court after hearing all the testimony determined that there had been a proper delivery of the deed to Mrs. Bissenger; that Mrs. Wesch intended the deed to become effective during her lifetime; and that there had been an adequate consideration for the deed.
Plaintiff appeals and contends that there had been no effective delivery of the deed; that if the deed was delivered, it was without consideration and in fraud of creditors; that the deed, if delivered, was intended as security for the creditors of Mrs. Wesch; and that defendant Bissenger is not entitled to claim credit, for homestead.
We are in accord with the finding of the trial court that the deed was delivered with the intention of becoming effective during the lifetime of Mrs. Wesch. There was an attempt made to record the deed a few days subsequent to its execution. Mr. Leslie, the attorney who drew the deed, testified that he told Mrs. Wesch that delivery was essential to pass title.
Joseph Knoll, a witness for the defendant, testified as follows:
“Q. Will you tell the Judge what, if anything, occurred in reference to this deed?
“A. Why, she got it from wherever she had it and gave it [to] Mrs. Bissenger, and I was there because she made the remark that Mr. Leslie said that she would have to have a witness that [it] was given to her, for me to be there and see it given, and I was there when it was given, right in the living room of the house.
“Q. Mrs. Wesch handed it to Mrs. Bissenger.
“A. Yes.
“Q. In your presence.
“A. Yes.
llQ. What did Mrs. Bissenger do with it?
“A. She looked at it and took care of it. That was the last I saw of it, well until, I guess, this morning when you showed it to me.
“Q. Or at least until the other trial.
“A. Yes.
“Q. What did Mrs. Wesch say to her sister when she gave her that deed?
“A. She said that she put her money in and put her time in, had been an attendant for her, if she had not been there, that she would not have been there herself, that she would not have pulled through if she had not been there; it was the only thing she could give her; it wasn’t what she should have for her time and effort, but that was the best she could do; in fact she hoped she would do better, if she got better. ’ ’
Max Knoll, a witness for the defendant, testified that Mrs. Bissenger brought the deed to her home in Van Bnren county a long time before Mrs. Wesch died and kept it there in the house. Mrs. Bissenger testified that she kept the deed in her possession up to the time of the trial in the instant case.
It is urged by plaintiff that Mrs. Wesch lived in the property until her death; that she carried fire insurance on the property in her own name, and made a will naming Mrs. Bissenger devisee of all her property both real and personal. In our opinion none of the facts relied upon by plaintiff are determinative of the question of an intent to convey a present interest in the property to Mrs. Bissenger.
It is the general rule that to constitute a valid delivery, there must have been a conveyance of a present interest in the land. Pollock v. McCarty, 198 Mich. 66; Camp v. Guaranty Trust Co., 262 Mich. 223. It is also the well-established rule that the whole object of the delivery of a deed is to indicate an intent upon the part of the grantor to convey a present interest in the land. Gibson v. Dymon, 281 Mich. 137; Noakes v. Noakes, 290 Mich. 231.
In Hynes v. Halstead, 282 Mich. 627, 637, the court said:
“The act of delivery is not necessarily a transfer of the possession of the instrument to the grantee, and an acceptance by him, but it is that act of the grántor, indicated either by acts or words, or both, which shows an intention on his part to perfect the transaction by a surrender of the instrument to the grantee, or to some third person for his use and benefit. * * *
“The test is whether it can be said that delivery of the deed was such as to convey a present interest in the land. Pollock v. McCarty, 198 Mich. 66.”
The record sustains the finding of the trial court as to the delivery of the deed.
It is next urged that the deed was without consideration and in fraud of creditors. It is admitted that deceased was insolvent both before and after the execution of the deed.
In Detroit & Security Trust Co. v. Gitre, 254 Mich. 66, 73, this court said:
“Where no rights of creditors intervene, a transfer from father to son in payment of services is lawful and the adequacy of the consideration unimportant. Even a gift is legal. But where creditors are interested, the transaction is subject to close scrutiny and the fairness of the consideration material. Where it assumes to be in payment of an antecedent debt, the consideration must be not ‘disproportionately small as compared with the value of the property or obligation obtained.’ 3 Comp. Laws 1929, § 13394 (Stat. Ann. § 26.883).”
The trial court made the following finding of facts on the question of consideration:
“There is no question but what Mrs. Wesch had a right to deed away her homestead and none of the creditors could object to this. Further there is no question but what Mrs. Bissenger put considerable money into the home and in looking after Mrs. Wesch in her sickness and prior to the time of her death. There is no question but what she was there a considerable period prior to her death, approximately at least, according to the testimony, two years off and on.
“The homestead exemption would be worth $1,500, which Mrs. Wesch wpuld have a perfect right to do with as she saw fit. Then there was the item of at least $600 in cash that Mrs. Bissenger put into the property. Then there was the length of services that she rendered for her sister, nursing, caring for her, looking after the home for a period of approximately two years, and then taking her sister to Ann Arbor for a period of approximately • three weeks. In the opinion of the court this makes a consideration that was well worth the value of the house. ’ ’
The record discloses that the value of the property conveyed is the sum of $3,500, From this amount there should be deducted the sum of $1,500 as homestead exemption which deceased had the right to convey regardless of how many creditors she had.
From an examination of the facts in the instant case, we find that Joseph Knoll testified that he lived with deceased from September, 1932, until her death in March, 1936; that defendant stayed with deceased during the summer of 1932; that she was there three or four months after deceased had a fall; that there were other times when defendant came and stayed with deceased; that when Mrs. Bissenger was there, she did the housework and went with deceased every place she went; that deceased could not get up and down stairs without help; that when she was confined to her bed, defendant took care of her; that defendant often furnished money for lights, fuel and groceries; and that most of the money was spent by defendant before the execution of the deed. The above testimony supports the finding of the trial court. The consideration for the conveyance was adequate. We find no evidence to support the claim of plaintiff that the deed was intended as security for a purported indebtedness of $600.
The decree of the trial court is affirmed, with costs to defendants.
Btxshnell, C. J., and Chandler, North, Mc-Allister, Wiest, and Butzel, JJ., concurred. The late Justice Potter took no part in this decision. | [
-61,
66,
-8,
-32,
-71,
-3,
25,
40,
-20,
8,
8,
-8,
33,
34,
-30,
3,
16,
-6,
-21,
3,
43,
-40,
-71,
46,
9,
8,
59,
-77,
13,
-25,
-41,
42,
-29,
10,
-9,
0,
44,
-60,
6,
1,
-40,
3,
21,
0,
-19,
12,
-20,
-28,
30,
-9,
-3,
11,
14,
-34,
-3,
8,
38,
-14,
-9,
-22,
8,
-28,
-5,
12,
40,
73,
-7,
-36,
-32,
-31,
36,
-67,
-6,
9,
-13,
8,
9,
20,
5,
38,
6,
-48,
0,
39,
-23,
1,
-39,
-70,
5,
-13,
-39,
22,
-11,
30,
25,
18,
-19,
55,
-12,
29,
0,
12,
16,
53,
-20,
-13,
-10,
4,
-36,
-10,
-35,
11,
28,
38,
2,
-7,
5,
1,
-6,
38,
16,
-18,
-3,
-6,
23,
0,
-32,
15,
7,
-29,
46,
4,
8,
-21,
-27,
15,
-9,
-46,
13,
-18,
69,
-6,
-41,
-46,
7,
-9,
-53,
-38,
-9,
-44,
-46,
-11,
-8,
48,
54,
-33,
25,
-16,
14,
-10,
6,
22,
32,
-34,
-79,
-26,
39,
34,
-9,
-10,
35,
-5,
-33,
-35,
49,
2,
28,
48,
27,
-2,
13,
-8,
22,
-7,
-51,
-42,
-29,
1,
15,
22,
13,
-46,
26,
10,
-25,
35,
25,
24,
9,
3,
43,
-12,
23,
-25,
2,
3,
26,
8,
10,
-37,
10,
-19,
-22,
1,
-49,
-9,
19,
-5,
-47,
1,
-1,
38,
33,
-36,
-38,
25,
9,
-20,
1,
0,
11,
-28,
20,
47,
-43,
-7,
11,
4,
4,
-12,
-27,
-16,
20,
32,
0,
-19,
0,
7,
-2,
-10,
-27,
-33,
-43,
58,
24,
-24,
-8,
-17,
11,
-23,
-16,
32,
2,
31,
-17,
14,
44,
-40,
-30,
-56,
-7,
57,
60,
-1,
-66,
-50,
13,
0,
11,
-8,
52,
-46,
-56,
-10,
12,
23,
-7,
27,
-30,
4,
-36,
14,
28,
0,
41,
-13,
-31,
-45,
25,
-2,
-72,
-6,
22,
47,
80,
1,
-25,
25,
33,
-4,
16,
-12,
1,
-34,
11,
36,
-4,
-43,
-26,
51,
10,
-22,
-38,
59,
-49,
21,
-38,
-20,
22,
46,
-21,
-21,
4,
6,
-2,
-21,
45,
-1,
-33,
-58,
43,
40,
0,
-27,
-12,
22,
-11,
19,
-12,
3,
25,
0,
-7,
25,
-23,
-23,
20,
18,
-19,
79,
21,
18,
13,
38,
-23,
8,
31,
-1,
-6,
15,
48,
30,
-12,
1,
-10,
8,
-41,
37,
15,
-5,
0,
2,
51,
63,
-7,
-21,
4,
-9,
3,
13,
-26,
-1,
0,
6,
-7,
-41,
-8,
-18,
-33,
-26,
-20,
73,
40,
-18,
-26,
-32,
-5,
-22,
-2,
32,
-1,
-17,
35,
9,
40,
1,
15,
-21,
46,
18,
43,
21,
-19,
-29,
19,
-58,
10,
13,
10,
-5,
18,
80,
24,
-8,
88,
-19,
-58,
74,
-27,
50,
40,
-5,
-5,
10,
-48,
-6,
-11,
-27,
41,
-10,
45,
27,
11,
39,
28,
-15,
47,
-3,
-23,
-4,
-9,
-39,
10,
-25,
20,
-10,
10,
8,
26,
16,
-38,
15,
-13,
-41,
40,
6,
-26,
22,
3,
21,
-6,
-28,
-8,
4,
45,
24,
-32,
4,
-11,
-32,
52,
-32,
-24,
42,
-36,
-16,
-40,
15,
12,
12,
-24,
16,
55,
22,
-9,
-67,
-4,
3,
-23,
-47,
8,
-47,
23,
51,
-3,
64,
64,
-31,
5,
18,
11,
9,
-57,
-2,
0,
19,
53,
-39,
17,
12,
-22,
-44,
-38,
1,
-52,
-47,
26,
-9,
-34,
8,
-3,
-12,
29,
32,
-68,
10,
14,
29,
-8,
-23,
-23,
-50,
-35,
-14,
-9,
-5,
-2,
-23,
44,
-14,
-7,
-5,
-15,
-52,
20,
-39,
-4,
34,
-29,
16,
10,
-13,
37,
-26,
18,
11,
-36,
-35,
-22,
-55,
22,
-4,
64,
-11,
6,
60,
14,
21,
3,
15,
26,
10,
-38,
-35,
28,
-5,
-19,
2,
-7,
-65,
-30,
10,
-14,
11,
-70,
-3,
40,
27,
15,
-27,
28,
1,
-14,
-16,
-2,
32,
10,
-61,
9,
1,
12,
49,
2,
68,
-13,
3,
-26,
38,
-31,
49,
4,
-13,
-14,
0,
-28,
-25,
5,
-15,
-5,
-47,
10,
-15,
-26,
6,
-75,
4,
4,
-65,
46,
-15,
-23,
37,
-42,
-11,
37,
-39,
26,
-33,
23,
-19,
20,
1,
-40,
45,
-10,
23,
60,
-11,
14,
-17,
34,
19,
-23,
-21,
-68,
-10,
9,
-7,
70,
7,
-4,
-1,
52,
51,
9,
-19,
68,
27,
1,
-21,
-1,
-34,
17,
30,
16,
-27,
3,
47,
51,
-24,
13,
30,
-5,
35,
-22,
1,
8,
-2,
0,
-26,
-25,
-9,
18,
-28,
-14,
17,
36,
-21,
2,
-22,
-5,
-46,
-2,
-58,
-11,
-32,
56,
-69,
14,
-9,
65,
42,
-56,
-16,
3,
0,
-16,
-7,
-18,
27,
-44,
17,
7,
-1,
-18,
-26,
51,
41,
5,
-23,
-8,
38,
46,
6,
18,
-49,
5,
19,
-19,
-23,
-47,
41,
-14,
3,
11,
-6,
-4,
-44,
-29,
21,
-42,
70,
-22,
-7,
25,
-23,
-24,
5,
48,
-37,
17,
-19,
-30,
-53,
28,
-19,
36,
-7,
47,
25,
-19,
-33,
-16,
-14,
-19,
19,
15,
-34,
-1,
-30,
17,
7,
-3,
54,
-8,
26,
-42,
36,
-10,
38,
-16,
-27,
3,
-48,
-10,
-34,
15,
47,
-39,
-8,
12,
-37,
-30,
33,
-62,
29,
6,
8,
-45,
15,
-19,
-34,
-71,
24,
-4,
11,
24,
65,
-35,
3,
24,
-63,
0,
15,
4,
-3,
5,
-11,
19,
23,
11,
-39,
32,
37,
-1,
-36,
13,
21,
-21,
23,
13,
-19,
-31,
-67,
-15,
8,
-12,
-15,
44,
31,
-12,
-12,
-49,
-15,
16,
12,
-4,
4,
19,
50,
-49,
54,
-18,
23,
-63,
0,
34,
-3,
-25,
21,
-4,
7,
-24,
33,
-1,
-10,
13,
-46,
-20,
21,
-9,
-20,
-9,
11,
18,
-23,
0,
33,
-35,
-20,
-6,
-12,
-69,
-17,
-38,
-25,
10,
-8,
-17,
7,
19,
-25,
-9,
-53,
3,
5,
55,
11,
-26,
31,
3,
21,
-20,
18,
22,
-4,
21,
-27,
1,
9,
43,
40,
-67,
26,
2,
50,
85,
-45,
8,
43,
18,
-6,
57,
38,
-11,
32,
1,
-23,
-67,
21,
21,
-14,
0,
11,
56,
-42,
12,
13,
12,
20,
-61,
-20,
11,
-64,
-6,
-37,
32,
31,
23,
-49,
-32,
-40,
-44,
41,
-63,
20,
4,
-10,
-81,
-36,
19,
22,
13,
19,
22,
35,
-3,
16,
-37,
13,
-12,
-31,
19,
-3,
18,
-12,
38,
-18,
-50,
8,
-29,
-10,
0,
-9,
-2,
7,
-14,
49,
-30,
19,
-15,
-41,
-12,
53
] |
Potteb, J.
Plaintiff filed a bill for divorce against defendant Elmore L. Westgate and November 30, 1938, obtained a decree, which was affirmed by this court November 9, 1939 (Westgate v. Westgate, 291 Mich. 18).
By paragraph 11 of the decree for divorce it was provided plaintiff should have a one-half interest in all of the properties of the Direct Befinery Stations; and a one-half interest in all properties owned by defendant, the ownership of which remained undisclosed. The trial court reserved full jurisdiction of the parties and of the subject matter “in order that this decree may be' amended or supplemented with respect to and for the purpose of disposition of the fully disclosed property and property rights of the parties in connection with the award herein with permanent alimony to the plaintiff.”
Subsequent to the time the decree of divorce was rendered, but before its affirmance by this Court, plaintiff filed a petition for leave to join certain parties as defendants, for accounting and receivership, in which she set up that defendant had concealed from her the nature and extent of his business, that he drew some $16,446.08 from the bank in Grand Rapids the day following the institution of the suit in question, that he caused a wholesale license to deal in gasoline to be taken out in the name of his bookkeeper, Nellie Drake, that he had bought a large amount of trucks and rolling equipment in the names of individuals other than himself, that he concealed and refused to produce daily records of the business, that he set up a system of books in which appeared a series of entries purporting to show the major^part of the ownership of the business was in persons other than himself, that defendant employed and had associated with him other persons in whose names title to the property had been taken; and asking that the court determine and decree what, if any, interest these defendants had in the property belonging to defendant ; and for other relief.
The defendants named in this petition filed answers thereto denying all the material allegations contained in plaintiff’s petition.
November 27,1939, plaintiff filed a petition setting up the terms of the decree granted to her; alleging that a receiver had been appointed to take over the business of the Direct Refinery Stations, that the property was worth approximately $150,000, that the defendant had withdrawn some $40,000 for his personal use, that she was without funds with which to pay her attorney’s fees; asking the trial court for an order permitting her to withdraw $2,500 from her share of the assets in control of the receiver to pay attorney fees; and asking that the receiver of the property be directed to pay her the sum of $500 a month during the pendency of the receivership, to be charged against her interest and ownership in the business and her share of the profits therefrom.
There was some testimony taken as to the amount of the business done by the receiver; and a showing made upon her part of her financial inability to pay her attorney more than $175. There was no proof that defendant Westgate had drawn anything from the fund in the hands of the receiver for anything. The court directed the receiver to pay plaintiff’s attorney $250 for services rendered to the receivership, and the sum of $750 to be charged against the interests of plaintiff, Bertha L. Westgate, in the assets and earnings of such receivership. Defendants appeal.
The question is presented, whether or not the trial court had a right to make the orders awarding attorney fees, the property in question being in the hands of a receiver.
A receiver is sometimes said to be the arm of the court, appointed to receive and preserve the property of the parties to litigation and in some cases to control and manage it for the persons or party who may be ultimately entitled thereto. A receivership is primarily to preserve the property and not to dissipate or dispose of it.
This is not an application for alimony either temporary or permanent. The questions of temporary and permanent alimony have been settled.
The property in controversy is in the hands of a receiver and is to be held and disposed of by the receiver under the order of the court.
This suit is an application for an order directing the receiver to pay out of the trust fund, to plaintiff, attorney fees to be used by her in prosecuting the suit for the determination of the amount of her permanent alimony.
The duty of a receiver is not to litigate as between the adverse parties, but, under the order of the court, to preserve and care for the property and turn it over to the person who is ultimately decided to be entitled thereto. Plaintiff alleges the property of the defendant Westgate has been fraudulently disposed of, and her proceedings are commenced for the purpose of recovering such property in case it shall belong to the defendant Westgate. The question, therefore, is whether the trial court had the power and authority to set apart and deliver to plaintiff a part of the trust fund to be used for the purposes of prosecuting this suit.
In Taylor v. Sweet, 40 Mich. 736, a bill was filed for the settlement of partnership affairs between the parties. The trial court, during the pendency of the proceeding, made an order directing that certain sums of money be paid over to the parties litigant. After determining that this sort of an order was appealable, the court said:
“If it were absolutely certain that a final accounting would restore from a party who had been overpaid the amount of such overpayment, it might be contended with some plausibility that this was a mere question of the custody and use of the moneys pending suit, and involved nothing more. But the fact cannot be overlooked that a temporary payment may be a final payment, and that it must and will become such unless the party receiving it shall be able to respond when the final settlement shall take place. If the fund were not a copartnership fund, and an order were made for its payment to one of the parties claiming it, subject to a similar accounting, and without any security that the other, if he should establish his right to it, should have it returned to him, the right to appeal would be manifest. The fact that a possible or even a probable return might be secured could not justify its being treated as a mere interlocutory proceeding. In any case where a party is unwarrantably deprived of the possession of property pending suit, the presumption is that he is to be restored at its conclusion. * * *
“The effect of this order is to divide the common fund at the rate of $300 at once and $200 a month be tween the parties so long as the litigation shall continue. This may prove a total destruction of rights; and as complainant asserts his poverty, independent of what is involved in the case, it must certainly prove such destruction if his interest in the concern shall leave him unable to respond on final settlement. # * *
“We * # * think the order was improvidently made.”
In Lakritz v. Wayne Circuit Judge, 252 Mich. 148, mandamus was brought to review an order of the court in divorce proceedings. This court said:
“The order undertakes to give Lakritz money without adjudication that it is his, which, upon hearing, may be found to be his wife’s. Even upon a sufficient bill on the trust theory, the most the court could do, pending determination on the merits, would be to preserve the property and income for the true owner.”
It is the duty of the receiver to preserve and protect the property in his hands as receiver and to turn it over to the true owner at the termination of the litigation. Plaintiff seeks to follow the property alleged to have been fraudulently concealed and converted and to recover the amount of this property as a part of defendant Westgate’s estate. If, however, the parties to whom she claims Westgate has diverted the property and concealed it should turn out to be the true owners, plaintiff, under the facts in this case, might be in a position of having a substantial award for attorney fees which she would be unable to pay.
Plaintiff claims, however, she is warranted in asking for attorney fees, and cites 1 Clark on Receivers (2d Ed.), p. 902, where it is said:
“A court of equity has jurisdiction over the allowance of costs and proper expenses by the party creating or saving the fund in question, if his acts resulted in benefit to all. ’ ’
In connection with this statement, the only authority cited is Trustees v. Greenough, 105 U. S. 527, and Harrison v. Perea, 168 U. S. 311 (18 Sup. Ct. 129).
Trustees v. Greenough, supra, involved a suit filed by one Yose, a large holder of bonds of the Florida Railroad Company, on behalf of himself and other bondholders, against trustees of the internal improvement fund of Florida and former members of the board, to set aside fraudulent conveyances and to recover property belonging to the internal improvement fund which had been pledged as collateral security for the payment of mortgages thereon. A large amount of the trust fund was secured and saved. The management of the fund was taken out of the hands of the trustees. Agents were appointed by the Federal court to make sales of the land. A large number of sales were made, a large amount of money was realized, and dividends were paid among the bondholders who came in and took the benefit of the litigation. Yose, who had carried the burden of the litigation and who had advanced most of the expenses and succeeded in bringing about results, filed an application to be paid an allowance out of the fund for his expenses and services. The court laid down the well-settled rule that one of many parties having a common interest in a trust fund who, at his own expense, takes proper proceedings to save it from destruction and restore it for the purposes of the trust, is entitled to reimbursement for his reasonable costs, counsel fees, charges and expenses, incurred in the fair prosecution of the suit and in reclaiming and rescuing the trust fund and causing it to be subjected to the purposes of the trust. The plaintiff was allowed, in addition to these sums, expenses for per sonal services and private expenses. The court said he was not a trustee, — he was a creditor suing on behalf of himself and other creditors for their own benefit and advantage, and the reasons which applied to his expenditures incurred in carrying on the suit to recover trust property did not apply to personal services and private expenses. The court added:
“We can find no authority whatever for any such charge by a person in his situation.”
As a result thereof, it disallowed the sum of $15,-003.35 for private expenses and $34,625 for personal services.
In Harrison v. Perea, supra, suit was filed by a sole surviving administrator of the estate of Jose L. Perea and as one of the heirs-at-law against the defendant Harrison to recover the valué of money alleged to have been fraudulently converted by Harrison to his own use. The court found that defendant falsified accounts, attempted to convert the whole estate wrongfully and knowingly, attempted to charge interest for the conversion of the assets of the estate, mingled the trust funds with his own; and the question arose whether or not the defendant was entitled to charge the expenses against the estate. The trial court held that, having wilfully obstructed the distribution of the assets of the estate and rendered it necessary that the complainant should obtain possession of the property by the institution of this suit, the necessity for which arose entirely out of Harrison’s wrongful conduct, he was not entitled to compensation for his fraudulent acts, but that Perea was authorized to recover attorney fees in connection with attempting to make Harrison disgorge the money of the estate which he had embezzled and converted to his own use. The case is analogous to Perrin v. Lepper, 72 Mich. 454.
We are unable to find any warrant for an order directing the receiver to pay attorney’s fees in this suit to one of tbe parties in litigation. Tbe order for the payment of $250 to be paid to plaintiff’s attorney for services rendered the receiver is affirmed. This order is made without prejudice to tbe right of plaintiff to apply for additional attorney’s fees when tbe case is concluded.
Btjshnell, C. J., and Sharpe, Chandler, North, McAllister, Wiest, and Butzel, JJ., concurred. | [
-8,
26,
41,
17,
-37,
-7,
-4,
-3,
7,
4,
-53,
-34,
5,
14,
-16,
22,
-19,
16,
2,
16,
-34,
-11,
13,
-8,
32,
26,
-22,
-48,
-25,
-44,
31,
-1,
-16,
19,
-17,
-25,
5,
-41,
26,
19,
27,
20,
26,
64,
-20,
-6,
-16,
-13,
36,
-39,
-56,
-33,
25,
0,
-30,
-16,
-28,
-66,
19,
-18,
23,
-50,
-1,
8,
12,
-9,
42,
1,
7,
-20,
17,
-19,
13,
-21,
-12,
-16,
-25,
-11,
-10,
-10,
-7,
-37,
-5,
-50,
-49,
34,
-13,
3,
-14,
0,
-47,
33,
10,
-28,
40,
10,
51,
8,
25,
-9,
-56,
-36,
-35,
-5,
64,
33,
-3,
-41,
-28,
-26,
5,
-10,
25,
-40,
-20,
-73,
-1,
-27,
10,
-35,
23,
5,
-28,
-4,
36,
-14,
-51,
-14,
7,
18,
-11,
-2,
2,
26,
41,
12,
19,
-14,
-32,
-6,
10,
-38,
60,
28,
-20,
51,
-36,
32,
-42,
-37,
5,
-11,
8,
82,
30,
22,
-18,
-13,
30,
-52,
-16,
-24,
41,
-33,
9,
25,
-22,
29,
-15,
-26,
13,
-11,
-53,
-8,
-56,
17,
-36,
-27,
-44,
-51,
27,
50,
-32,
-29,
-43,
-19,
-5,
-1,
-10,
23,
42,
-29,
-15,
16,
-26,
14,
-6,
38,
7,
-34,
-23,
-29,
2,
12,
30,
-11,
27,
41,
-8,
-44,
-16,
47,
67,
-19,
-85,
23,
-5,
-22,
-50,
6,
7,
9,
-3,
48,
-68,
-55,
20,
-6,
14,
-7,
-13,
-1,
-23,
28,
-15,
-19,
55,
17,
-1,
42,
-28,
-43,
-21,
-27,
17,
-3,
-33,
54,
-8,
49,
-42,
16,
-58,
66,
18,
9,
-19,
-23,
19,
27,
-1,
36,
-7,
38,
-3,
5,
6,
7,
54,
-23,
17,
-35,
5,
10,
23,
-6,
-10,
15,
-32,
-13,
-22,
-5,
17,
-5,
32,
4,
28,
17,
33,
-24,
-4,
11,
-39,
-24,
15,
52,
-13,
0,
32,
73,
-19,
-35,
2,
-46,
0,
0,
9,
-30,
-72,
-11,
43,
5,
-11,
-31,
51,
2,
11,
13,
20,
-15,
53,
43,
-64,
33,
4,
-16,
46,
14,
-15,
45,
1,
39,
32,
-53,
-60,
-39,
-16,
3,
21,
-42,
26,
10,
34,
27,
42,
-26,
31,
-29,
7,
-30,
-51,
-15,
-62,
46,
-60,
-16,
47,
-35,
-9,
25,
0,
7,
-22,
5,
37,
5,
28,
6,
12,
-7,
7,
32,
-18,
-6,
21,
-7,
-34,
5,
-28,
18,
1,
-14,
13,
28,
51,
48,
39,
-28,
-10,
-10,
-18,
63,
11,
-9,
18,
-30,
18,
-2,
-59,
4,
-19,
9,
-53,
29,
-59,
-8,
9,
18,
-40,
25,
49,
-17,
-2,
15,
-31,
62,
31,
-25,
25,
-1,
-3,
3,
-32,
-1,
9,
-24,
-19,
-20,
33,
23,
-35,
-1,
30,
-32,
46,
24,
-53,
-9,
-9,
57,
27,
30,
34,
-6,
4,
6,
-4,
-39,
38,
15,
21,
-41,
5,
35,
-39,
-22,
22,
28,
-3,
0,
41,
13,
30,
10,
2,
-9,
16,
8,
-26,
40,
-37,
19,
-10,
26,
7,
13,
-23,
-15,
24,
-3,
-25,
6,
-18,
-15,
-25,
-14,
9,
-8,
-35,
-53,
9,
-17,
40,
19,
3,
-32,
-23,
-8,
53,
-22,
-50,
-41,
43,
-7,
40,
50,
-36,
-7,
-1,
68,
-41,
-29,
47,
12,
-10,
45,
68,
-5,
-6,
20,
-24,
-14,
36,
2,
-27,
28,
42,
18,
6,
-24,
-2,
-8,
-44,
-19,
-46,
14,
-2,
-16,
11,
-12,
-34,
22,
37,
38,
27,
27,
-26,
-70,
-30,
-2,
-35,
-1,
-2,
-21,
0,
47,
0,
27,
-20,
-34,
-15,
-5,
-19,
-24,
48,
-15,
-2,
-20,
24,
-5,
-30,
-7,
22,
-34,
21,
9,
-44,
0,
-9,
8,
11,
13,
5,
12,
10,
6,
16,
25,
5,
-1,
20,
-19,
-18,
21,
27,
-45,
43,
36,
9,
42,
15,
-15,
-66,
-31,
-27,
13,
3,
42,
-10,
-35,
25,
-48,
17,
10,
12,
12,
14,
-98,
-26,
60,
22,
-21,
18,
-16,
12,
50,
29,
-21,
-31,
0,
5,
0,
-5,
21,
30,
-3,
-25,
37,
18,
-24,
17,
0,
-15,
-32,
-12,
-16,
-15,
-5,
23,
29,
25,
31,
21,
42,
33,
12,
-2,
-21,
8,
-28,
26,
-70,
-35,
19,
32,
-14,
30,
15,
8,
8,
-27,
-30,
44,
13,
53,
-25,
-65,
-20,
23,
-9,
-12,
30,
-18,
27,
10,
-4,
70,
27,
1,
15,
-4,
11,
-52,
40,
-27,
22,
-26,
40,
31,
-17,
41,
-14,
-3,
34,
-24,
-20,
-29,
0,
-19,
20,
51,
-42,
33,
-8,
-18,
19,
61,
-4,
-8,
-41,
6,
9,
-2,
-16,
10,
5,
5,
-12,
10,
-43,
73,
-17,
-2,
-21,
2,
1,
-22,
9,
-24,
-3,
3,
7,
-21,
-22,
-30,
0,
2,
23,
15,
13,
24,
4,
48,
-29,
-28,
22,
58,
0,
-50,
-31,
-74,
44,
-10,
2,
19,
12,
2,
-23,
10,
-16,
2,
-19,
-59,
-7,
-54,
27,
-19,
6,
49,
-5,
26,
-21,
17,
5,
25,
-21,
54,
2,
24,
27,
-25,
-88,
37,
-37,
23,
2,
15,
-8,
34,
-30,
0,
57,
-16,
-11,
14,
40,
0,
33,
-3,
-6,
9,
30,
14,
-2,
22,
42,
-49,
5,
-30,
-13,
-32,
-4,
-12,
23,
-33,
-55,
-11,
-16,
7,
10,
59,
-15,
-15,
-16,
-39,
39,
79,
27,
-18,
16,
15,
-21,
-55,
13,
19,
-3,
-26,
37,
-5,
-25,
-24,
-5,
-34,
-4,
1,
-10,
28,
11,
-1,
-2,
18,
-32,
-33,
-14,
31,
-2,
-55,
-2,
7,
13,
2,
4,
-15,
-3,
8,
43,
31,
-4,
-11,
-43,
-51,
-7,
-50,
-16,
-39,
10,
61,
-7,
-23,
0,
25,
24,
-33,
-24,
0,
0,
-15,
-94,
-53,
-15,
-37,
15,
4,
-46,
-10,
43,
-16,
22,
30,
7,
0,
30,
-31,
-5,
-29,
8,
6,
32,
-14,
-7,
19,
-11,
-38,
29,
-20,
-23,
20,
-13,
41,
67,
45,
-20,
-10,
-19,
5,
6,
-51,
7,
60,
-24,
-48,
25,
0,
1,
79,
8,
20,
-4,
-1,
-15,
-67,
0,
-27,
-5,
-26,
-8,
-20,
-13,
-10,
-47,
1,
49,
37,
-36,
-18,
-74,
19,
32,
11,
9,
-3,
-50,
3,
-13,
-32,
-41,
46,
30,
-2,
-6,
10,
1,
-5,
30,
-30,
24,
-41,
-8,
-31,
32,
37,
-44,
-3,
39,
-6,
2,
41,
63,
18,
-38,
-5,
-22,
-6,
-2,
18,
-39,
17,
1,
-18,
38,
-36,
4,
14,
21,
-20,
40,
-52,
-44,
-36,
-27,
-24,
-5,
-37,
38
] |
Bushnell, J.
This is an appeal by defendants Ruth Graden Ochs, daughter of Peter R. Graden, Fred Ochs, her husband, and Earl F. Ochs, her son, from a decree requiring the defendants, jointly and severally, to pay forthwith to plaintiff Charles E. Allstaedt, the executor of the estate of Peter R. Graden, the sum of $21,500, together with interest thereon from October 10,1938. The sum mentioned represents the proceeds of two bank accounts, the first of $10,300 in The Detroit Bank, and the second of $11,200 in the Commonwealth Bank. These accounts stood jointly in the names of Peter R. Graden and Ruth Graden Ochs, and the funds were withdrawn by Ruth Graden Ochs on October 10, 1938. Peter R. Graden died December 10, 1938, at the age of 79. He had four children, three of whom, defendant Ruth Graden Ochs, her sister Ethel Burns, and her brother Niles Graden, survived their father.
During 1933, 1934, and 1935 Graden distributed' all the real estate he owned among his three living children in equal shares. In November of 1934 he opened a joint bank account at the Detroit Savings Bank (now The Detroit Bank) in the names of Peter R. Graden and Ruth Graden Ochs. In December of that year he attempted to open another joint bank account with himself, Ruth and Niles at the Commonwealth Bank, but being advised that, under the bank regulations then in force, only two names could be placed on an account, he opened this account in the names of himself and Ruth.
A branch manager at the Commonwealth Bank at the time the account was opened testified that he explained to Graden that such an account would permit withdrawals by either and the balance would be payable to either or the survivor upon the death of one of the parties. Ruth admitted in her answer that at the time the accounts were opened she promised her father that she would not withdraw any sums from these accounts without his consent or authorization, and that no withdrawals were made by her until October 10, 1938.
In September of 1937, Graden executed his last will and testament and, aside from minor gifts mentioned therein, divided his estate equally among his three children. In September of 1938 he was taken ill. On October 4th he underwent a serious operation, and it was six days later that Euth withdrew the balance in each of the accounts after certain-withdrawals had been made by Graden himself during his illness. Graden suffered a cerebral hemorrhage and died December 10, 1938.
Plaintiff Allstaedt qualified as the executor named in the will. After a hearing in the probate. court he was authorized by the court to institute this action. The hearing in the circuit court resulted in a record on appeal consisting of 801 pages and 270 exhibits. Despite the extent of the record and the documentary evidence referred to therein, the simple question presented here, as it was in the circuit court, is whether or not Peter E. Graden made a gift of the two bank accounts to his daughter, Euth Graden Ochs.
An examination of the testimony and exhibits referred to requires the conclusion that the trial judge who had the advantage of seeing and hearing the witnesses correctly determined that Peter Graden never intended to make a gift of the money in the joint accounts. There is no doubt that Euth was Peter Graden’s favorite child, and she certainly did much for him, especially during his> latter days. Yet when he made his will less than a year prior to his last illness he divided his estate equally' among his three children. The will does not indicate any preference of one over the other; nor does it mention the joint bank accounts. His agreement with Euth, which she admitted, to the effect that no moneys should be withdrawn without his knowledge and consent, had not been changed when she withdrew the balances prior to his death.
Prior to the time the bank accounts were first opened, the statute governing joint bank deposits read as follows:
“When a deposit shall be made in any bank or trust company by any person in the name of such depositor or any other person, and in form to be paid to either or the survivor of them, such deposits thereupon and any additions thereto, made by either of such persons, upon the making thereof, shall become the property of such persons as joint tenants, and the same together with all interest thereon, shall be held for the exclusive use of the persons so named and may be paid to either during the lifetime of both, or to the survivor after the death of one of them, and such payment and the receipt or acquittance of the same to whom such payment is made shall be a valid and sufficient release and discharge to said bank for all payments made on account of such deposits prior to the receipt by said bank of notice in writing not to pay such deposit in accordance with the terms thereof.” 3 Comp. Laws 1929, §12063 (Stat. Ann. §23.303).
This section of the statute was amended by Act No. 286, Pub.' Acts 1937 (Comp. Laws Supp. 1940, § 12063, Stat. Ann. 1941 Cum. Supp. § 23.303), and the pertinent additions thereto have since read as follows:
‘ ‘When a deposit has been made, or shall hereafter be made, in any banking institution transacting business in this State, in the names of two or more persons, payable to either or the survivor or survivors, such deposit or any part thereof or any interest or dividend thereon and any additions thereto, made by any one of the said persons, shall become tbe property of sucb persons as joint tenants, and the same shall be held for the exclusive use of the persons so named and may be paid to any one of said persons during the lifetime of said persons or to the survivor or survivors after the death of one of them, and such payment and the receipt or acquittance of the same to whom such payment is made shall be a valid and sufficient release and discharge to said banking institution for all payments made on account of such deposits prior to the receipt by said bank of notice in writing not to pay such deposit in accordance with the terms thereof.
“The making of the deposit in such form shall, in the absence of fraud or undue influence, be prima facie evidence, in any action or proceeding, to which either such banking institution or surviving depositor or depositors is a party, of the intention of such depositors to vest title to such deposit and the additions thereto in such survivor or survivors.”
The creation of the joint bank accounts by the deceased did not conclusively establish title thereto in the survivor but merely created a presumption of ownership in the survivor which is rebuttable by competent evidence to the contrary. Van’t Hof v. Jemison, 291 Mich. 385. The presumption created by the statute has no weight as evidence when challenged by rebutting testimony. Hill v. Hariston, 299 Mich. 672. Such presumption disappears in the face of the evidence presented in this case. Kuth’s admission that she was not to withdraw money without her father’s consent or authority indicates that her father did not intend to make a gift of the moneys in the accounts. Also, the bank branch manager who handled the opening of one of the accounts testified that Peter G-raden said at the time that the account was for the purpose of having someone able to take care of emergencies, but that he wanted the money to go to all of his children. Other disinterested witnesses testified to like effect. Because of the rebutting testimony, we have searched the record for proof of Peter Graden’s intent to vest a right of survivorship in Ms daughter Ruth, and that intent cannot be found.
The court properly ruled on the exclusion of testimony of the opposite parties on matters equally within the knowledge of the deceased as provided in 3 Comp. Laws 1929, § 14219 (Stat. Ann. § 27.914), and the executor did not waive the benefit of this statute by relying on the admission in the answer of defendant Ruth Graden Ochs.
The decree entered in the circuit court is affirmed, with costs to appellee.
Chandler, C. J., and Boyles, North, Starr, Butzel, and Sharpe, JJ., concurred. Wiest, J., took no part in this decision. | [
-6,
7,
3,
-16,
6,
-47,
12,
-9,
-7,
-39,
-4,
-32,
30,
19,
-22,
-11,
-13,
9,
29,
0,
-15,
-52,
-18,
41,
-18,
-1,
16,
9,
-4,
1,
36,
-22,
29,
14,
-7,
9,
90,
-1,
24,
-12,
16,
-19,
67,
60,
-36,
9,
44,
-29,
10,
34,
27,
-41,
83,
13,
64,
-1,
21,
-35,
-35,
-5,
24,
-61,
54,
3,
15,
-12,
0,
5,
-46,
5,
14,
-9,
-9,
45,
-19,
-32,
-19,
12,
21,
1,
-43,
-38,
12,
-3,
-16,
-18,
-27,
14,
-17,
31,
32,
-4,
3,
6,
16,
9,
-20,
2,
12,
22,
19,
-48,
33,
34,
15,
38,
16,
19,
32,
12,
28,
36,
50,
-1,
-16,
6,
-37,
-10,
-40,
-8,
-15,
13,
37,
-9,
25,
-2,
-65,
0,
-2,
-43,
8,
12,
-12,
15,
-12,
23,
-14,
-90,
-9,
-9,
0,
20,
6,
16,
-12,
-20,
8,
6,
32,
-28,
-61,
17,
8,
44,
23,
-26,
6,
-20,
19,
-3,
-15,
-36,
18,
-49,
-35,
-30,
31,
33,
-30,
7,
31,
58,
12,
-17,
10,
29,
44,
0,
-24,
25,
36,
18,
8,
28,
-26,
-19,
-22,
8,
8,
-36,
15,
-37,
11,
34,
-10,
34,
70,
-7,
11,
-1,
28,
-32,
31,
31,
38,
-65,
17,
-47,
-11,
-18,
-13,
-29,
37,
-5,
-61,
9,
-67,
-30,
-28,
-13,
-18,
-20,
-24,
-5,
-22,
-14,
37,
-14,
28,
-22,
1,
-7,
-8,
82,
-9,
47,
17,
-12,
-33,
-34,
-47,
-18,
19,
-51,
-30,
40,
-26,
-24,
-5,
-23,
-1,
12,
-32,
56,
-33,
50,
18,
-21,
0,
-1,
-16,
13,
-24,
41,
21,
1,
16,
21,
-33,
-44,
0,
-32,
29,
-12,
-44,
-45,
36,
5,
3,
-1,
13,
16,
-6,
1,
1,
-24,
-17,
-4,
18,
11,
38,
4,
15,
-10,
93,
21,
-31,
-24,
23,
3,
-36,
-15,
41,
-13,
55,
32,
23,
-65,
-26,
-4,
29,
-31,
32,
-38,
60,
52,
-51,
-26,
6,
61,
38,
-72,
-55,
41,
-10,
17,
-16,
-29,
32,
25,
-26,
25,
-4,
6,
-72,
-25,
10,
23,
48,
2,
-2,
-24,
-46,
22,
10,
-24,
-16,
19,
-24,
-45,
2,
34,
10,
21,
3,
9,
52,
-14,
-23,
39,
35,
21,
28,
-8,
-45,
-18,
1,
-50,
24,
11,
50,
17,
-21,
-27,
20,
55,
-23,
24,
21,
38,
1,
13,
8,
9,
5,
20,
3,
9,
-37,
-19,
0,
-13,
13,
28,
-16,
-43,
22,
-29,
-7,
-16,
-7,
7,
42,
-3,
-26,
-9,
-41,
-12,
24,
39,
-13,
47,
12,
-17,
23,
-11,
-10,
-51,
19,
9,
19,
18,
25,
24,
5,
-62,
17,
-8,
26,
10,
12,
42,
-24,
-24,
-3,
-35,
-28,
57,
0,
-30,
28,
25,
37,
68,
-5,
32,
-42,
-49,
38,
10,
27,
43,
13,
20,
-24,
-20,
24,
41,
6,
1,
22,
-33,
24,
28,
21,
11,
-7,
23,
14,
1,
8,
4,
-3,
-8,
33,
25,
46,
-1,
13,
-6,
16,
14,
-31,
-28,
-52,
-10,
-35,
-62,
-28,
-5,
15,
-14,
-29,
0,
11,
5,
-54,
-31,
-22,
-38,
-42,
-26,
38,
25,
8,
-5,
2,
-44,
-1,
-1,
4,
-54,
-25,
50,
-19,
-31,
6,
29,
-21,
62,
20,
34,
-17,
28,
-15,
-17,
10,
-23,
-32,
4,
12,
-26,
-46,
-26,
5,
-65,
17,
-16,
-44,
9,
-27,
-42,
16,
26,
-38,
-4,
-16,
-14,
-9,
3,
-12,
-37,
-15,
0,
27,
-8,
25,
-19,
-41,
-51,
-30,
7,
-14,
-27,
47,
-52,
-6,
6,
-5,
-7,
2,
16,
27,
-16,
-19,
38,
18,
37,
-35,
-37,
25,
-31,
-9,
-19,
-32,
8,
5,
57,
27,
25,
1,
-19,
0,
1,
22,
-46,
-48,
-39,
20,
-25,
-22,
3,
-9,
8,
0,
-5,
6,
81,
1,
-79,
48,
-14,
-22,
9,
-21,
5,
-18,
-11,
22,
-54,
21,
34,
-37,
9,
27,
13,
-37,
38,
-16,
44,
44,
-33,
5,
-8,
-25,
19,
-20,
5,
-4,
-9,
6,
38,
10,
19,
-12,
-22,
26,
-13,
44,
25,
5,
20,
13,
11,
-7,
-31,
-1,
-68,
-21,
-41,
-32,
-12,
-37,
44,
-4,
43,
12,
10,
21,
-32,
9,
-1,
-11,
-39,
-3,
11,
-62,
19,
-7,
-42,
15,
-35,
-22,
10,
-61,
-34,
16,
47,
-11,
2,
45,
0,
-27,
2,
-3,
7,
12,
30,
-7,
-4,
-2,
-12,
13,
25,
-29,
1,
-20,
13,
-28,
-1,
-62,
46,
-2,
-20,
7,
-17,
18,
-42,
14,
-2,
9,
-55,
19,
-52,
4,
20,
52,
-16,
-12,
26,
19,
18,
-8,
6,
8,
34,
-56,
-14,
-16,
-15,
-18,
20,
7,
29,
-40,
1,
-38,
0,
-6,
29,
-7,
46,
23,
-8,
-29,
12,
-5,
-17,
-4,
15,
-39,
21,
14,
-17,
-27,
-4,
-2,
-27,
3,
-56,
-97,
-15,
-46,
9,
-46,
1,
-51,
-25,
71,
21,
-11,
-20,
-10,
-26,
53,
11,
42,
17,
44,
50,
-49,
4,
18,
-38,
-19,
50,
21,
15,
49,
-20,
0,
7,
26,
20,
-2,
18,
4,
18,
-57,
33,
2,
1,
-9,
-27,
-27,
26,
-24,
-33,
-1,
21,
-2,
-33,
23,
-24,
-21,
27,
-27,
-4,
-7,
17,
-3,
-41,
-36,
6,
-18,
-1,
20,
16,
0,
-23,
-27,
3,
-36,
39,
0,
-13,
11,
31,
0,
6,
25,
-49,
0,
17,
-16,
-52,
-39,
6,
5,
32,
-5,
-32,
-36,
-9,
-1,
2,
-20,
48,
45,
-6,
-23,
16,
-28,
14,
-18,
0,
19,
-6,
26,
2,
-26,
30,
30,
28,
26,
35,
54,
12,
-40,
-16,
-57,
19,
8,
-28,
-24,
0,
-16,
0,
29,
45,
30,
21,
20,
-14,
-31,
19,
-17,
16,
-8,
-3,
15,
-32,
25,
-22,
-1,
30,
23,
0,
1,
6,
2,
-11,
-59,
14,
14,
-23,
22,
-29,
-50,
16,
3,
-15,
31,
-2,
27,
-2,
7,
-25,
-19,
1,
36,
-35,
-69,
16,
12,
34,
47,
-49,
-16,
39,
39,
-27,
-14,
40,
-39,
30,
-47,
-20,
-31,
28,
-31,
32,
11,
23,
61,
-56,
19,
-11,
17,
-15,
-18,
-5,
-34,
-33,
2,
-43,
28,
-10,
-5,
-19,
11,
12,
20,
40,
-44,
30,
-35,
21,
-34,
35,
17,
2,
0,
51,
12,
50,
23,
42,
12,
-32,
-23,
-37,
35,
9,
-17,
-8,
-15,
30,
-27,
-9,
-18,
1,
1,
9,
16,
-17,
-18,
-17,
7,
28,
17,
7,
-32,
46
] |
Weadook, J.
(dissenting). On September 28, 1926, plaintiffs entered into a land contract with Thomas N. Sickrey for the sale of certain real estate at No. 4727 Division avenue, county of Kent. The contract provided that Sickrey was to keep the buildings insured against loss by fire and'in the event of loss the insurance to be paid to plaintiffs.
On October 2, 1926, plaintiffs entered into a contract of insurance with defendants. Mrs. Cole testified that she went to see Mrs. Sara Igelman, the solicitor for the LaBarge Insurance Agency (the duly authorized agent of defendant company), explaining their interest in the property as being that of owners and vendors and asking that they be protected. Mrs. Igelman testified she gave this information to Mrs. Ethel A. Knutson, then Miss Ethel Dell, an employee of the LaBarge Insurance Agency, over the telephone, asking that the interest of plaintiffs be protected in issuing the policy. She is supported in this testimony by Mrs. Cole. Mrs. Knutson denies this and testified that Mrs. Igelman instructed her to issue the policy to Thomas Sickrey. The policy was issued in the name of Thomas N. Sickrey on the uniform standard Michigan form, with a mortgage clause running to plaintiffs, and was sent to Mrs. Igelman who testified that her office girl made a record of it and mailed it to the Coles. This contract of insurance .expired and Mrs. Igelman testified that she called Mr. LaBarge at his office and told him to renew it, asking that the interest of plaintiffs be protected. The policy was sent to Mrs. Igelman’s office and a record made of it by the office girl and mailed to the Coles.
On July 7, 1932, Thomas N. Sickrey burned the house by pouring a quantity of gasoline in the basement and throwing a match into the cellar window. He testified that this caused an explosion; that he walked four or five steps and discovered his shirt was on fire and his arms were burned but that he did not see the house on fire until after he had driven his car six blocks and turned’ around toward the house. There is no other testimony to support the claim of defendants that the property was destroyed by an explosion. The court held that the defendant companies did not establish their claim on the theory of explosion.
Plaintiffs filed proofs of loss which defendants claim were inadequate. The court held that defendants did not establish this claim. The court held that damages should be awarded on the basis of the interest of plaintiffs in the property insured at the time of the fire on July 7, 1932, amounting to $1,761.31. Defendants have appealed.
The policy provided that the insurance company should be liable for any direct loss or damage to the property insured hereunder caused by explosion occurring in the structure insured.
‘ ‘ Provided further that in each and every instance the explosion results from the hazards inherent in the occupancy described herein (frame building, garage and barn) and not otherwise.”
.The property was destroyed by explosion, not in the foregoing manner bnt intentionally, and criminally by Thomas Sickrey, vendee in the land contract which was the basis of the insurable interest of plaintiffs, who testified that he sprinkled a gallon and a half of gasoline in the basement of the house, threw in a lighted match and the house exploded. For the crime he was convicted and sentenced to the prison at Ionia on July 28, 1932. After Sickrey burned the property he gave plaintiffs a quitclaim deed of it. There was no testimony contradicting Sickrey. The other matters as to reformation of policy, value of property, etc.', become immaterial.
The decree should be reversed, with costs to defendants and appellants.
Sharpe, J., concurred with Weadock, J.
Fead, J. I cannot agree with the result reached by Mr. Justice Weadock.
The house was damaged by both explosion and fire. Plaintiffs recovered for the whole damage on the theory it was all a fire loss. Defendants denied liability for that part of the damage caused by the explosion. The proofs attempted no determination of the loss attributable to each.
The facts are undisputed. The events in sequence were that Sickrey scattered gasoline in the basement with the purpose of burning the house, he went outside, threw a lighted match through the open windoiv, the flame caused the gasoline vapor to ignite, an explosion and fire resulted, each causing damage.
The policy insured “against all direct loss or damage, by fire,” except, etc. The insurer is not liable for loss occurring “by explosion or lightning unless fire ensue, and, in that event, for loss or damage by fire only. ’ ’
The general rule is:
“Under a provision of the latter character, if the fire precedes the explosion and the explosion is an incident thereto, the fire is the direct or proximate cause of the injury by the explosion, and the insured is entitled to recover for his entire loss; but, if the explosion precedes the fire and is not caused by it, he can, under the express terms of the policy, only recover for that proportion of the damages resulting from the fire alone.” 14 R. C. L. p. 1218.
See, also, Judson v. Manhattan Fire & Marine Ins. Co., 243 Mich. 458; 26 C. J. p. 344; notes in 38 L. R. A. (N. S.) 474; 13 A. L. R. 883; 44 A. L. R. 870; 65 A. L. R. 934.
The general rule, however, does not solve our problem. It is held that where an explosion of gas is caused by an innocent flame, like a lighted lamp or match, the damage therefrom is an explosion, not a fire loss under the policy. Ross v. L. & L. & G. Ins. Co., 83 N. J. Law, 340 (84 Atl. 1050); Briggs v. N. A. & M. Ins. Co., 53 N. Y. 446; Zamboni v. Imp. Dealers Mutual Fire Ins. Co., 174 Minn. 122 (218 N. W. 457). This ruling is in harmony with the construction that the policy does not insure against innocent or friendly fire. Harter v. Phoenix Ins. Co., 257 Mich. 163. However, where a lighted match, carelessly thrown into a keg of gun powder, caused an explosion and fire, the whole damage was held to be a fire loss. Hobbs v. Northern Assurance Co., 12 Can. Sup. Ct. 631. The negligence converted the flame into a hostile fire.
The case at bar is quite unusual and does not fit into any of the reported cases. The lighted match was a hostile element, intentionally criminal. The gasoline was not an innocent occupant of the house. It was a malicious enemy, introduced specifically as an instrumentality to burn the building. Both the lighted match and gasoline were so intended and so resulted. When the flame from the match set fire to the gasoline vapor, the elements of destruction by fire were in full operation. The fact that an unexpected explosion occurred does not prevent the damage being wholly a fire loss because it happened as an incident of the burning and was subsequent to the first hostile fire which, in uninterrupted operation, caused the conflagration. The whole damage was within the policy as a fire loss.
Defendants raise other points in connection with liability but, under the findings of fact by the court, amply supported by the testimony, and repeated decisions of this court, they need no discussion. However, defendants urge that the decree is erroneous in providing joint judgment against the defendants instead of adjudging pro rata liability and in failing to provide for subrogation.
The court recognized the right of subrogation and suggested that counsel present their views. Evidently it was not done. If counsel desire to propose amendments to the decree in these respects, they will be considered on settlement; otherwise the decree is affirmed, with costs to plaintiffs.
MacDonald, C. J., and Potter, North, Wiest, and Btjtzel, JJ., concurred with Fead, J. | [
12,
36,
23,
-23,
21,
18,
-8,
19,
8,
-10,
6,
21,
91,
-22,
-6,
-1,
7,
18,
17,
24,
-50,
-28,
-44,
-29,
-23,
-59,
15,
-33,
-12,
-1,
32,
12,
-22,
-5,
-32,
8,
49,
-7,
2,
-16,
-3,
-14,
73,
-4,
12,
-3,
11,
-10,
25,
33,
51,
6,
22,
-9,
-27,
-68,
-29,
58,
-15,
6,
2,
-77,
26,
21,
-39,
6,
20,
32,
7,
19,
11,
0,
-36,
-3,
16,
-4,
35,
21,
-35,
1,
9,
-29,
53,
-16,
31,
13,
-19,
-8,
-33,
36,
1,
-39,
22,
7,
6,
-8,
-40,
22,
21,
17,
4,
-1,
-44,
15,
23,
28,
7,
-27,
-4,
-20,
-2,
-1,
28,
-1,
24,
-1,
-4,
15,
-45,
0,
-1,
-41,
-16,
-20,
6,
56,
-28,
3,
-61,
-17,
-29,
24,
-4,
30,
-2,
0,
-13,
-52,
19,
-48,
-12,
27,
-62,
-23,
-55,
19,
11,
-28,
-11,
-30,
-33,
-8,
-33,
-9,
-4,
-13,
51,
-37,
40,
-69,
1,
-62,
0,
4,
-75,
-2,
-23,
-7,
-9,
3,
30,
-18,
-8,
-40,
43,
29,
11,
-20,
-36,
30,
25,
28,
8,
-51,
-7,
-64,
-38,
0,
38,
6,
16,
-38,
-48,
-35,
-39,
41,
6,
51,
1,
-38,
46,
-17,
-16,
-25,
32,
27,
17,
0,
36,
23,
-20,
38,
-7,
-51,
-32,
48,
-29,
-33,
-27,
-38,
28,
9,
8,
56,
-36,
-47,
-2,
35,
4,
-8,
-17,
5,
-2,
41,
-37,
-7,
22,
-17,
-4,
63,
-13,
5,
-10,
28,
11,
24,
-23,
-33,
7,
5,
-17,
5,
-16,
42,
-31,
15,
-11,
-7,
-39,
12,
-27,
44,
-48,
1,
42,
1,
60,
14,
7,
32,
-20,
28,
35,
7,
-43,
-35,
8,
2,
-19,
-28,
26,
-14,
-19,
7,
-2,
13,
32,
28,
-34,
-43,
31,
-28,
-7,
-8,
39,
17,
32,
-7,
6,
10,
-34,
-9,
-11,
-55,
7,
11,
-40,
3,
-24,
-7,
7,
27,
36,
-32,
57,
14,
-7,
3,
-15,
-41,
9,
44,
-15,
-16,
12,
11,
32,
-24,
-39,
20,
-21,
10,
42,
28,
-2,
-9,
-4,
-53,
-8,
-31,
-15,
27,
9,
5,
-8,
46,
-11,
-17,
-32,
-11,
-24,
-35,
-1,
30,
-41,
20,
46,
24,
-13,
20,
23,
34,
30,
78,
-55,
-14,
2,
-55,
-10,
42,
27,
26,
-63,
-13,
-4,
-9,
-43,
61,
-48,
58,
32,
-26,
9,
39,
22,
7,
18,
-6,
-15,
5,
-28,
-24,
14,
25,
-11,
-27,
-25,
-18,
-8,
29,
16,
31,
-62,
-6,
-45,
25,
-17,
-14,
-60,
3,
8,
7,
-57,
-40,
39,
16,
34,
3,
55,
11,
35,
-8,
16,
11,
-2,
-13,
23,
20,
-31,
-25,
-33,
-40,
-9,
18,
-22,
-34,
-71,
-11,
-14,
21,
-14,
37,
-15,
19,
-15,
26,
-32,
26,
54,
2,
-18,
30,
5,
59,
9,
33,
31,
-13,
32,
-33,
4,
-21,
39,
-31,
10,
24,
-2,
-34,
24,
-24,
15,
-18,
-16,
-13,
-6,
3,
-28,
13,
-18,
26,
-19,
63,
-11,
13,
-31,
-35,
-61,
16,
27,
-24,
49,
-14,
-42,
-33,
-19,
24,
-2,
-35,
0,
-11,
-35,
-17,
-3,
0,
-1,
-2,
4,
-36,
-7,
31,
22,
-17,
21,
43,
4,
40,
72,
-35,
4,
21,
26,
31,
-29,
-33,
0,
32,
15,
9,
35,
-37,
36,
13,
23,
24,
9,
-14,
51,
9,
-18,
6,
26,
20,
29,
23,
5,
-20,
16,
14,
-8,
-1,
-5,
-9,
-24,
-2,
6,
24,
17,
-13,
-16,
47,
-36,
-4,
20,
-28,
32,
-13,
22,
-37,
-14,
-35,
-58,
-4,
8,
-27,
-27,
-16,
-27,
-15,
-33,
37,
-12,
-33,
2,
-54,
-17,
1,
-2,
24,
-37,
11,
19,
32,
17,
-42,
-13,
4,
7,
-6,
-21,
9,
-11,
-63,
-34,
-10,
-22,
73,
-7,
-41,
62,
-9,
-4,
17,
-6,
-34,
18,
38,
-4,
16,
36,
-24,
19,
-16,
-23,
19,
8,
2,
-6,
41,
-30,
40,
0,
-14,
12,
-9,
4,
-17,
75,
30,
-38,
-14,
-25,
16,
0,
7,
-16,
-15,
-46,
-40,
-13,
-59,
-65,
-12,
1,
-44,
-8,
-12,
39,
-4,
-8,
-12,
-1,
-21,
-7,
-3,
-32,
-21,
59,
9,
8,
27,
-13,
-16,
33,
28,
-8,
27,
37,
87,
37,
28,
36,
-5,
36,
14,
50,
16,
2,
-33,
-20,
-7,
2,
-61,
-42,
12,
20,
-26,
17,
3,
14,
-39,
-15,
-6,
-1,
20,
-43,
30,
36,
-58,
14,
7,
39,
35,
46,
-37,
-29,
13,
14,
8,
-16,
7,
32,
-65,
15,
-14,
-43,
18,
48,
21,
-25,
15,
22,
-38,
-23,
24,
30,
37,
30,
-16,
10,
-46,
4,
-28,
21,
49,
-48,
-1,
68,
-17,
57,
-29,
-39,
30,
5,
-7,
-5,
4,
-43,
27,
-24,
-1,
28,
2,
28,
-20,
1,
-15,
30,
-7,
7,
-56,
-5,
25,
-6,
-14,
3,
-9,
11,
-8,
-9,
9,
43,
-26,
-30,
-30,
4,
-41,
15,
18,
44,
9,
9,
20,
0,
9,
-38,
21,
20,
-57,
-20,
16,
-21,
32,
9,
74,
33,
-11,
-34,
31,
42,
-5,
-12,
-24,
21,
-16,
-8,
-1,
-45,
15,
-27,
26,
-26,
-5,
18,
36,
37,
8,
21,
-45,
-59,
-15,
8,
-41,
11,
18,
1,
9,
17,
2,
-7,
29,
52,
18,
-22,
39,
-8,
-28,
-2,
17,
-3,
21,
-14,
-3,
1,
20,
-15,
-25,
-20,
5,
42,
-13,
9,
-5,
-39,
14,
41,
-55,
-13,
-5,
22,
-14,
-11,
27,
-16,
-42,
-6,
-2,
-34,
-68,
33,
65,
21,
17,
-17,
26,
-4,
23,
8,
-1,
-3,
62,
60,
-63,
8,
16,
-46,
4,
-13,
-23,
25,
0,
-56,
-60,
12,
4,
7,
19,
30,
28,
22,
3,
24,
-26,
6,
-53,
-20,
39,
-24,
-20,
-36,
41,
-14,
-31,
-13,
-49,
-17,
-36,
-9,
48,
-1,
57,
-14,
35,
-23,
49,
32,
-38,
54,
-38,
-6,
-4,
25,
-18,
-9,
-4,
-15,
25,
33,
-34,
3,
62,
29,
26,
40,
54,
-56,
37,
-67,
-5,
-56,
-23,
-53,
22,
5,
-15,
47,
-12,
-7,
50,
-33,
-25,
8,
-22,
5,
-13,
-52,
-29,
3,
22,
6,
-28,
-23,
0,
-51,
24,
8,
-11,
-47,
-43,
0,
-45,
-33,
16,
0,
17,
3,
-11,
-23,
12,
10,
-36,
-2,
-22,
21,
-4,
-20,
11,
34,
32,
15,
-26,
-14,
-13,
64,
-8,
-30,
12,
-46,
5,
-8,
-10,
42,
24,
-26,
32
] |
Subsets and Splits
No saved queries yet
Save your SQL queries to embed, download, and access them later. Queries will appear here once saved.