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Fitzgerald, P. J.
On January 19, 1973, defendant Robert L. Patterson appealed as of right from a denial of a motion for retrial. On March 16, 1973, this Court, in acting upon a motion for peremptory reversal, agreed with defendant’s position arguing that the sentence of three to four years was in violation of the indeterminate sentence act and accordingly issued an order reducing defendant’s minimum sentence to two years and eight months.
Two questions remain for our consideration. Was defendant denied his constitutional right to a speedy trial? Is defendant entitled to credit for time served between arraignment and sentencing where a charge of felonious assault with intent to do great bodily harm was brought against bim while incarcerated in Jackson prison?
On August 4, 1971, the Jackson County grand jury returned an indictment against defendant charging him with feloniously assaulting Edward Crothers with intent to do great bodily harm less than the crime of murder. Both defendant and Crothers were inmates of Jackson prison at the time of the altercation, defendant serving a five-to ten-year sentence for breaking and entering. Formal arraignment on the grand jury indictment was conducted on August 10, 1971. Defendant issued a formal written demand for a speedy trial in this matter on October 28, 1971. A second count, felonious assault, was added to the grand jury indictment, and on January 31, 1972, the Jackson County Circuit Court accepted defendant’s plea of guilty to this lesser included offense.
On February 14, 1972, defendant moved to withdraw his plea of guilty, alleging the plea was the result of duress imposed upon him by being "segregated” in Jackson prison five months prior to the entry of the plea. At a hearing held on this motion, the trial court refused to allow the defendant to withdraw his guilty plea. On April 13, 1972, defendant was sentenced to a term of three to four years, commencing at the expiration of his exist ing sentence for breaking and entering. Credit was given defendant on this sentence from the date of the guilty plea, January 31, 1972. On July 21, defendant’s court-appointed counsel moved for a new trial which was denied on January 8, 1973. This appeal followed.
Defendant first argues that he was denied his constitutional right to a speedy trial by the oppressive and prejudicial delay of 234 days between his arrest and trial. Because the majority of this period was spent in solitary confinement, defendant contends he was prejudiced in that his efforts to communicate with a key witness and to consult with counsel were hampered. We disagree.
The United States Supreme Court has established that all speedy trial claims will be approached on an ad hoc basis examining several pertinent factors to determine whether one’s constitutional right to a speedy trial has been violated. These factors include, (1) the length of delay, (2) the reason for delay, (3) defendant’s assertion of his right, and (4) prejudice to the defendant. Barker v Wingo, 407 US 514; 92 S Ct 2182; 33 L Ed 2d 101 (1972). Michigan decisions are in complete accord with Barker, having adopted this approach in People v Grimmett, 388, Mich 590, 601-607; 202 NW2d 278, 283-287 (1972); People v Collins, 388 Mich 680; 202 NW2d 769 (1972); and People v Potts, 46 Mich App 538; 208 NW2d 583 (1973).
The length of delay between arrest and trial in the instant case was 179 days. Defendant erroneously arrives at 234 days by calculating the period elapsed from the date of the offense, June 11, 1971, to the trial date. Where no pre-arrest delay is involved, speedy trial claims are normally measured from arrest to trial. Further, the delay is reduced to 151 days since the circuit court judge acted on defendant’s demand for a speedy trial on January 3, 1971, by scheduling the trial as soon as possible. The facts of this case indicate the delay has not been sufficiently long to warrant further inquiry as to the remaining considerations as outlined in Barker, supra. The Court stated at 407 US 530; 92 S Ct 2192; 33 L Ed 2d 117:
"The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.”
The period of six months has been established as the "triggering mechanism” in determining whether a delay is presumptively prejudicial and whether the remaining factors in the balance must be examined. MCLA 767.38; MSA 28.978, MCLA 780.131; MSA 28.969(1), People v Collins, supra, 689; 202 NW2d at 773. The length of delay is less than six months and is not sufficiently prejudicial to warrant further examination into the speedy trial claim. But were this not the case, the defendant would still be unsuccessful in arguing that he was denied his right to a speedy trial. The delay cannot be attributed to a deliberate or purposeful attempt to hamper the defense. Defendant’s trial was promptly scheduled at the beginning of the January term. Owing to the full court calendar at the time the motion for speedy trial was made, this represented the first available opportunity to submit the casé for trial. Finally, defendant has not made a sufficient showing of prejudice resulting from the delay. The key witness whose availability has been denied to defendant did not disappear. Either defendant or his attorney was free to talk with this witness prior to the entry of defendant’s plea of guilty. These factors taken together fail to establish that defendant has been denied his constitutional right to a speedy trial.
Our next inquiry is whether defendant is entitled to credit for the period of imprisonment between his arraignment and sentencing in this matter pursuant to MCLA 769.11b; MSA 28.1083(2). The trial court awarded credit on the felonious assault conviction from the date the guilty plea was entered. The people rely upon People v Pruitt, 23 Mich App 510; 179 NW2d 22 (1970), and People v Brooks, 33 Mich App 297; 189 NW2d 816 (1971), contending that the trial court did not err in failing to credit defendant for time spent in prison between the date of his arraignment and the date he entered his plea of guilty. Conversely, defendant argues that People v Hall, 19 Mich App 95; 172 NW2d 473 (1969), and People v Lewis, 42 Mich App 121; 201 NW2d 341 (1972), require that credit be received for the period of detention between defendant’s arraignment and sentencing, a total of 247 days.
There currently exists a split of opinion on this Court as to whether credit should be received for a sentence imposed as the result of the defendant’s committing a crime while in prison. The basis for these divergent positions rests in the interpretation given MCLA 769.11b; MSA 28.1083(2), which reads:
"Whenever any person is hereafter convicted of any crime within this state and has served any time in jail prior to sentencing because of being denied or unable to furnish bond for the offense of which he is convicted, the trial court in imposing sentence shall specifically grant credit against the sentence for such time served in jail prior to sentencing.”
In People v Pruitt, supra, the defendant was apprehended and charged with prison escape while serving a term in Jackson prison on a prior conviction. The Court denied defendant’s contention that the amount of credit should be computed by measuring the time between the date of his arraignment and ultimate sentencing for his conviction of prison escape. Instead, the Court looked to the date upon which the accused could have in fact been released upon bond for the crime of prison escape as the point from which sentence credit should be granted. This interpretation renders the credit-granting statute inapplicable to the crime of prison escape since the apprehended escapee was validly incarcerated when the attempt was made and could not in fact post bond as an inmate of a penal institution. In support of this interpretation, the Court reasoned:
"We consider that placing a premium on prison escape under the involved statute does result in 'absurd consequences.’ It is apparent that to grant appellant credit from the date of his arraignment on the warrant for prison escape July 26, 1968 would be an invitation to all inmates similarly circumstanced to attempt escape, then if apprehended and arraigned simply to indicate an inability to furnish bond. Automatically credit would of necessity be extended from the date of apprehension and arraignment to the date of sentencing for prison escape.” 23 Mich App at 514; 179 NW2d at 25.
The Pruitt Court distinguished People v Chattaway, 18 Mich App 538; 171 NW2d 801 (1969), and People v Hall, supra, on the basis that the latter two cases involved credit on sentences imposed concurrently while the prison escape attempt in Pruitt imposed a consecutive sentence. A later case, People v Brooks, supra, relies wholly on the Pruitt decision. There, defendant was also denied credit for the period of time between his arrest following a prison escape and the subsequent date of sentence. More recently, this Court again adopted the reasoning of Pruitt in People v Holibaugh (Docket No. 13907, decided April 27, 1973 [unreported]), in refusing to credit defendant with the period from arraignment to sentencing of the subsequent crime of prison escape. The Court adopted Pruitt, believing it to be the better-reasoned interpretation of the credit-granting statute with regard to its application to crimes committed while in prison.
People v Lewis, supra, advanced by defendant as a leading case in support of his position, held that a prison inmate convicted of carrying a concealed weapon while serving a sentence for a prior conviction is entitled to be credited with time served for the period between arraignment and sentencing. It is conceded that defendant Patterson could not in fact have been released upon bond since he was incarcerated at the time the altercation occurred. It may also be argued that the grant of credit in Lewis could result in one of the "absurd consequences” sought to be avoided. However, we think the preferable construction of MCLA 769.11b; MSA 28.1083(2) is to grant defendant credit for time served from the date of arraignment to the date of sentencing.
The credit-granting statute is considered remedial legislation and should be construed liberally. People v Havey, 11 Mich App 69, 81-82; 160 NW2d 629, 636 (1968); People v Chattaway, 18 Mich App 538; 171 NW2d 801 (1969); People v Hall, supra; and People v Haines, 24 Mich App 240; 180 NW2d 107 (1970). The Court in Chatta way enunciated this construction in stating at 543; 171 NW2d at 804:
"We hold that the statute entitles a convicted person to sentence credit without regard to the reason why he was denied or unable to furnish bond. It is enough that he was not allowed to or could not furnish bond. The defendant in this case is entitled to credit for time served before sentencing even though he received credit for the time served against another sentence.” (Emphasis added.)
In People v Hall, supra, defendant was granted sentence credit even though he could not have in fact been released upon bond for the offense of armed robbery since he was serving a presumptively valid sentence for a previous crime. In adopting Chattaway, the Court held that sentence credit received for an earlier conviction did not negate the right to credit against the subsequent armed robbery sentence.
This Court distinguished Pruitt from Chattaway and Hall on the basis that the latter two cases involved credit granted on concurrent sentences, whereas the prison escape in Pruitt involved a sentence imposed consecutively by statute. Yet Lewis involved the carrying of a concealed weapon, an offense for which a consecutive sentence was imposed. Thus, the distinction between Pruitt and Lewis was not based upon whether the sentence was imposed concurrently or consecutively. The only possible distinction to be made is the nature of the subsequent conviction involved, sentence credit being granted for carrying a concealed weapon and denied for prison escape. People v Potts, supra, inferred as much in stating:
"We find such reasoning [arguments to deny sentence credit], although conforming to the letter of the statute [MCLA 769.11b; MSA 28.1083(2)], not in accordance with the construction given the statute in order to effectuate its purpose. People v Chattaway, 18 Mich App 538 [171 NW2d 801] (1969); People v Hall, 19 Mich App 95 [172 NW2d 473] (1969). Compare People v Pruitt, 23 Mich App 510 [179 NW2d 22] (1970), whose holding was limited to the application of the credit-granting statute to a sentence imposed for prison escape.” (Emphasis added.) 46 Mich App at 550-551; 208 NW2d at 590.
However, People v Holibaugh, supra, declines to recognize the distinction between prison escape and any other crime committed while in prison.
Our decision to adopt the Lewis position is further supported by the doubtfulness of any absurd consequences resulting as envisioned by the Pruitt Court. To argue that prison escapes will be encouraged if sentence credit is awarded for a subsequent conviction ignores the fact that an inmate who escapes and is later apprehended faces the imposition of a consecutive sentence pursuant to MCLA 768.7a; MSA 28.1030(1). It is unlikely a prison inmate will risk additional jail time because he is aware sentence credit will be awarded on the consecutive sentence. Where a concurrent sentence is involved, the compelling logic of People v Chattaway, supra, at 543; 171 NW2d at 804, is persuasive.
"Nor is there anything in the statute which makes relevant the fact that the consequence of granting credit in this case would be to give the defendant the benefit of the credit against the sentences imposed in both cases. In this connection we note that the sentence credit which the defendant obtained in the other case was of illusory benefit to him; since both sentences run concurrently, the shorter sentence in the other case was in practical effect absorbed by the longer sentence imposed in this case. If the defendant can only have credit against one sentence (as the people contend), surely he should receive the credit against the longer sentence imposed in this case, where it would be of value to him, rather than against the shorter sentence imposed in the other case where the credit was of no value to him.”
The people attempt to distinguish Hall from the instant case by restricting its applicability to sentences imposed concurrently. This distinction is of doubtful significance and we agree with the Lewis court in granting credit, although a consecutive sentence was involved. Rather than have a shorter existing sentence absorbed by a subsequent longer one, defendant Patterson was nevertheless denied credit for the time spent in jail prior to his subsequent conviction and sentence. The court, did not differentiate between concurrent and consecutive sentences, but instead looked to defendant’s inability to furnish bail as being sufficient to invoke the credit-granting statute.
Finally, the practical effect of granting sentence credit to prison inmates who commit a crime while in prison will be minimal. In the exercise of their discretion, circuit court judges may impose sentences taking into consideration the sentence credit to which the defendant is entitled. We think it preferable to give effect to the remedial nature of the credit-granting statute and rely upon judicial discretion to impose sentencing rather than to deny defendant the sentence credit to which he is entitled.
No purpose will be served by remanding this case for resentencing. It is ordered that defendant’s sentence be amended specifically granting credit for the 247-day period between arraignment and sentencing.
Affirmed in part and modified in part.
All concurred.
People v Tanner, 387 Mich 683; 199 NW2d 202 (1972).
MCLA 750.84; MSA 28.279.
MCLA 750.82; MSA 28.277.
MCLA 570.227; MSA 28.424.
In this case, the grant of credit would presumably serve as an invitation for all inmates similarly circumstanced to attempt felonious assault with intent to do great bodily harm.
MCLA 768.7a; MSA 28.1030(1). | [
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] |
Bronson, P. J.
Defendant, Norman Midgyett, was tried before a jury for the offense of larceny in a building. MCLA 750.360; MSA 28.592. He was convicted on February 29, 1972 and was sentenced on March 16, 1972 to a term of from 3-1/2 to 4 years in the Southern Michigan Prison. Defendant’s appeal is by right.
The offense occurred shortly prior to Christmas in 1971. On December 10, 1971 the defendant was observed by the security personnel of the Sears Roebuck store on Gratiot Avenue in Detroit. Defendant was noticed walking down an aisle with what appeared to be an empty shopping bag. Defendant entered the toy department, walked over to a shelf containing model trains and placed one box containing a train set in the bag. The bag did not conceal the box.
On attempting to leave the store, the accused bypassed a cashier. The store security personnel gave chase and apprehended the defendant in the adjacent shoe department. The box containing the train set was not produced at trial, but three Polaroid pictures, purporting to depict the same train set, were admitted into evidence. Defendant did not take the stand. His defense was that he was merely taking the train set to another register to pay for it when he was arrested by security personnel.
Defendant’s first claim of error can be stated simply:
"Whether photographs may be introduced in lieu of the actual pilfered train set without allowing the jury to speculate unnecessarily as to the contents and value of the pictured train set.”
The photos here were illustrative of the size of the box and what kind of merchandise it was. The photos supplemented the testimony of the store detective in detail. The trial judge properly limited the purpose for which the photographs were admitted. In general photographs, like other kinds of demonstrative evidence, are admissible if they are helpful in illuminating any material point in issue. People v Brannon, 14 Mich App 690, 692; 165 NW2d 903, 905 (1968). Since the photographs were admissible in all respects, it was up to the court to decide whether their probative value outweighed any prejudice to the accused. This he did. It was not error to admit them. Value of the merchandise is not an element of the offense larceny in a building. Therefore, even if the jury did speculate as to value, it is not prejudicial.
Defendant claims the trial court improperly uti lized his juvenile record in sentencing. The juvenile record may properly be considered in the sentencing process by the sentencing judge. See People v McFarlin, 389 Mich 557; 208 NW2d 504 (1973).
Defendant next claims that the court’s failure to instruct sua sponte on lesser included offenses was error. There was no request for such an instruction by the defendant. Furthermore there is no indication that the defense relied upon any theory of attempt nor did the evidence support that theory. Additionally the trial judge did not affirmatively move to limit the jury’s consideration of lesser included offenses. We find no error. See People v Lemmons, 384 Mich 1; 178 NW2d 496 (1970), and People v Membres, 34 Mich App 224; 191 NW2d 66 (1971).
We have carefully considered defendant’s remaining allegations of error and based upon our review of the record and briefs find no reversible error.
Defendant’s minimum sentence exceeds the guidelines of People v Tanner, 387 Mich 683; 199 NW2d 202 (1972). The issue has been properly preserved, People v Montgomery, 43 Mich App 205; 204 NW2d 82 (1972).
Pursuant to GCR 1963, 820.1(7) defendant’s minimum sentence of 3-1/2 years is hereby set aside and corrected to 2 years and 8 months.
Conviction affirmed with modification of minimum sentence.
All concurred.
The defendant at trial agreed to admission of the photos for some purposes but it is unclear whether objection to nonproduction of the train set and/or the box containing the train set was made.
People v Jackson, 29 Mich App 654; 185 NW2d 608 (1971). | [
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O’Hara, J.
The City of Alma is a Michigan municipal corporation.
Citizens Mutual Insurance Company is its general liability insurer.
E. G. McDermott and Hertel-Deyo are construction contractors, who for the purpose of this opinion were joint venturers, who contracted with Alma to install sewer lines in Alma. We will refer herein to the joint venturers as the contractor.
Employers Mutual Liability Insurance Company of Wisconsin is an insurance carrier duly admitted to do business in Michigan. It writes public liability insurance. It issued such a policy to the contractor.
Employers Reinsurance Corporation is not a party to this litigation but its role in the proceedings requires that we refer to it herein. To avoid misunderstanding or possible confusion we will refer to this company as the reinsurer. Citizens bought a policy from reinsurer to cover in part the payment of claims by Citizens on behalf of its various insureds.
All of the foregoing is clear. What follows is much less clear. The reason is expressed in 169 ALR 387.
"The question of apportionment of loss between specific and blanket insurance policies with which this annotation is concerned enjoys the doubtful distinction of being universally recognized as constituting one of the most perplexing and troublesome problems in the whole law of insurance.”
The problem is troublesome enough in cases which go through to verdict and judgment, so that at least a trial judge or an appellate court can rely in total security upon findings of fact by the trier of questions of fact. In this case the parties settled the original lawsuit out of which this litigation grew, so there are no specific findings of fact as to negligence and proximate cause. To add frosting to this litigious cake, Employers appeared and participated in the defense of the negligence action under a denial of liability and a reservation of rights.
So much for the identification of the parties and a general statement of the legal problems. We review now the factual problem.
When Alma decided to install the sewer system and engaged the contractor to do the work, it required that the contractor obtain a policy of liability insurance to protect Alma from claims arising out of what can be described as the "sewer job”. The contractor obtained the policy from Employers. A workman was killed, either by suffocation or drowning, when a water main was ruptured in the trench for the new sewer line. The gushing water caused the collapse of the side walls of the trench. The shutoff valve required a wrench or hydrant key to cut off the flow. Co-workers of the deceased ran to the valve, but the wrench or key was not there. Their efforts to extricate the trapped worker failed. The administratrix of his estate sued Alma. The case went to trial. After several days it was settled for $45,000. Citizens paid $25,000. Reinsurer paid $20,000. Employers paid nothing but did offer $5,000 in exchange for a release of all claims against it.
Citizens sued Employers for the $45,000 paid to the estate. Citizens contended that Employers’ policy covered an incident which caused the worker’s death, and furthermore, that if the negligent act did not come within the terms of the policy, Employers was estopped to assert the policy defense, because Alma relied on Employers to issue a policy which would protect Alma against any claim growing out of the sewer job. The record supports the fact that Alma’s then director of public works did not see or read the policy Employers issued but did receive and keep in his file a certificate of insurance attesting that the contractor had obtained insurance in the required amounts. He testified that it was not "customary” to see or read the policy and that he relied upon the certificate to support his approval that Alma enter into the contract with the contractors. It may be worthy of more than passing notice that the policy Employers issued has a large rectangular space to the left of the designation of the named insured. It is set off by a thin red line of the same shade of ink in which the name of the issuing company is printed. It reads: "PLEASE READ YOUR POLICY”. Perhaps other directors of public works of other municipal corporations might do well to consult with the city attorney or corporation counsel or whoever the city’s legal advisor is before approving the execution of a contract calling for insurance protection when all the director has seen is a "certificate of insurance”. Additionally, we suggest that a precise record be kept in something other than the memory of the city employee as to exactly what coverage is demanded by the municipality, and insistence upon no exclusions which limit the coverage written.
The able and experienced trial judge favored us with a 13-page written opinion. His discussion of the issue and his findings of fact have been extremely helpful. The rhetorical questions the opinion asks are much the same as occurred to us after oral argument and our post-argument conference. They arise out of the limiting effect of exclusion "b” upon the insuring agreement. Alma is the named insured. It is designated as a municipality. The policy is a standard form with an insert specifying the "Definition of Operations”, which reads "Operations performed for NAMED INSURED at the premises herein designated by Edward G. McDermott Co. and Hertel-Deyo”.
The insuring agreement which is relevant reads:
"Coverage A — Bodily Injury Liability. To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury * * * sustained by any person, caused by accident and arising out of the operations hereinafter defined.”
Exclusion "b” reads:
"This policy does not apply:
"(b) To any act or omission of the named insured or any of his employees, other than general supervision of work performed for the named insured by independent contractors.”
The complaint alleges that Alma was negligent:
"a. In failing to adequately inspect and supervise * * * construction operation.
"b. In failing to provide [contractor] with a hydrant key or turn off wrench when then use of said instrument would have averted the death of [decedent].
"c. In failing to leave a hydrant key in or near the hydrant control valve.
"d. In removing said key from the area while Defend ant had knowledge that said construction was underway.
"e. In failing to notify [contractor] or any of its employees that the Defendant had removed the hydrant key from its proper place.”
The trial judge noted that:
"It appears to the court that a fact of some importance is that there was never any determination that the City of Alma or the contractor were liable for any damages to plaintiff. * * * While it may be * * * interesting * * * to speculate on the verdict a jury might render. * * * Can it be said that Employers who denied any liability, contributed nothing to the settlement, and was deprived of the opportunity to have its liability determined is now obligated to reimburse plaintiff for the amount of the settlement.”
We also wonder if it can be said.
Throughout the whole case and with particular vigor on oral argument Citizens contends (and the trial court adverted to this in his opinion) that it was "forced” to settle by the reinsurer. A member of the panel was moved to ask during argument how Citizens was "forced”. Did reinsurer use a gun? We can’t possibly know what went on between Citizens and its reinsurer through their respective counsel that ended up in the settlement. Frankly, we don’t know how it would affect the issue before us.
We have no findings as to whether Alma did any of the things decedent’s administratrix alleged it did. We obviously can make no finding of fact in this regard. All we have before us is the question of whether what the administratrix contended Alma did fell within the insuring agreement or was within exclusion "b”.
The trial judge held that:
"[T]he failure to have the hydrant key handy may have been one of several proximate causes of [decedent’s] death, but it could hardly be said to have been, in and of itself, the sole proximate cause.”
We certainly can’t make that determination in this Court. The trial judge further found:
"[I]n the opinion of the court the failure of the City to make sure that the hydrant key was always available could very well be considered a failure of general supervision rather than an act of negligence.” (Emphasis supplied.)
This is a conclusion of law with which we are unable to agree. "General supervision” of the actions of an independent contractor digging a sewer line does not and cannot, in our view, extend to keeping a hydrant key available for use in a possible emergency. A negligent act on the part of the city it might well be. The contingency that eventuated might well have been reasonably foreseeable. This still is part and parcel of a negligent act. It was the "act or omission of the named insured [Alma] or * * * his employees”. This is just exactly what Employers clearly, plainly, and unequivocally excluded from its coverage.
We havé not failed to consider the question of the alleged estoppel. The trial judge did not address himself to it specifically. Perhaps it is not really before us. However, to obviate an unnecessary remand to us in the event appeal to the Supreme Court is sought and granted and that Court would consider the issue viable in this Court, we do not find from the record that degree of proof which would establish an estoppel to bar Employers from asserting its policy defense.
We are asked to reduce the verdict to the $25,-000 Citizens itself paid. We are asked to pass upon the question of primary liability. In view of our holding these issues need not be discussed.
We simply construe the language of a contract in the nature of an insuring agreement between Alma and Employers to determine what, if any, redress Citizens had against Employers because Citizens and its reinsurer paid a claim they contended Employers should have paid. Citizens knew and reinsurer knew that Employers had raised a policy defense and was participating in the litigation to whatever extent it did under a reservation of rights. What motivated Citizens to join with its reinsurer in the settlement we cannot be expected to know. In any event assuming Employers had prevailed on the policy defense question in any prior action Citizens would be in the same position it is now. After all it did insure Alma against general public liability. What it did was doubtless required under its policy, that is to defend or settle as it chose. We know of no legal manner in which the reinsurer could force Citizens to do what it did.
For the reasons herein discussed we vacate the verdict and judgment of the trial court and direct the entry of a verdict of no cause of action. Appellant may tax costs.
All concurred.
There are, of course, infrequent exceptions. | [
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Fitzgerald, J.
Defendant was charged in a two-count information with breaking and entering with intent to commit larceny and attempt to break and enter with intent to commit larceny. After waiving preliminary examination and prior to arraignment, defendant complied with the prosecuting attorney’s request to complete a prearraignment questionnaire. Defendant stood mute as to count 1 and entered a plea of guilty as to the second count of attempted breaking and entering. Following the court’s acceptance of defendant’s plea of guilty, a motion for entry of nolle prosequi on count 1 was filed together with an order to that effect. Defendant was sentenced to a term of from three to five years in prison.
The trial court, apprised of defendant’s decision to appeal, appointed attorney James Orford as defense counsel. However, on December 23, 1971, defendant filed a claim of appeal in propria persona. The Iosco County Circuit Court then entered a subsequent order appointing the Appellate Defender to file a claim of appeal on behalf of defendant, to which Docket No. 13403 was assigned. Defendant then filed an in propria persona motion for postconviction review. Appointed counsel Or-ford filed a motion for an appeal bond together with notice of hearing and proof of service. An order for postconviction review was entered and a hearing was scheduled for March 6, 1972.
Attorney Orford’s request that he be relieved of all responsibility as defendant’s attorney was granted, as was defendant’s motion for appeal bond. On the same day the case was remanded for bond, this Court dismissed Docket No. 13403 and ordered the case remanded for further proceedings pursuant to defendant’s postconviction review petition. Mr. Paul Dwyer was requested to serve as standby attorney during the postconviction review hearing scheduled for March 6, 1972. At the hearing, appeal bond of $10,000 was set and the proceedings with respect to postconviction review were adjourned until April 10, 1972. On this date defendant’s motion for new trial was denied. It is from this denial that defendant appeals.
Defendant first contends the trial court abused its discretion in refusing to vacate defendant’s guilty plea. He argues a trial should have been ordered based upon testimony at a postconviction hearing from defendant’s alleged accomplices which repudiated earlier statements implicating the defendant. Testimony of the two codefendants involved which exculpated defendant is said to constitute newly discovered evidence entitling him to a new trial in accordance with People v Clark, 363 Mich 643; 110 NW2d 638 (1961). We disagree. By requesting that the guilty plea be vacated on the basis of newly discovered evidence, defendant does not challenge acceptance of the plea on jurisdictional grounds, but rather seeks to raise questions relating to the merits of his conviction. The general rule states:
"The plea of guilty waives any defect not jurisdictional.” 4 Wharton’s Criminal Law & Procedure, § 1901, p 770; People v Jury, 252 Mich 488; 233 NW 389 (1930); People v Potts, 45 Mich App 584; 207 NW2d 170 (1973).
People v Laudermilk, 67 Cal 2d 272, 281; 431 P2d 228, 234-235; 61 Cal Rptr 644, 650-651 (1967), expresses this principle in stating:
"Since a plea of guilty constitutes a conviction * * * [citations omitted] and indeed has been called 'the highest kind of conviction which the case admits’ * * * [citation omitted] it has been stated as a general principle that the ’judgment entered on the plea of guilty is not appealable on the merits’ and irregularities not going to the jurisdiction or legality of the proceedings will not be reviewed.” (Emphasis added.)
Defendant’s attempt to vacate his plea of guilty on the basis of newly discovered evidence involves a nonjurisdictional defect and is deemed to be waived. People v Catlin, 39 Mich App 106; 197 NW2d 137 (1972); People v Horace, 36 Mich App 666; 194 NW2d 128 (1971); People v Wickham, 41 Mich App 358; 200 NW2d 339 (1972).
Nor is defendant able to find support from the Court Rules as a basis for ordering a trial. GCR 1963, 527.1(1)-527.1(9) lists the grounds for which a new trial may be granted. Examination of the cases and commentary relating to newly discovered. evidence as a basis for a new trial fails to indicate that such a motion is appropriate in connection with a guilty plea. Specific reference is made to motions seeking a new trial made following trial judgments, jury trials, and trials by the court sitting without a jury. By waiving trial and entering a plea of guilty, defendant also waived the right to further consideration of the evidence pertaining to the merits of the validity of the waiver.
Defendant next argues he was not substantially informed of his constitutional privilege against self-incrimination and the right to confront his accusers. Consequently, the plea of guilty was not understanding^ made. The prosecution contends the plea record and prearraignment questionnaire reflect that defendant freely, intelligently, and understandingly waived his constitutional rights. While the trial court’s remarks on the record are somewhat ambiguous, the recitation contained in the prearraignment questionnaire adequately informed the defendant as to his rights against self-incrimination and right to confrontation. People v Jaworski, 387 Mich 21; 194 NW2d 868 (1972). Defendant was required to answer the following questions:
"Do you understand that you have a right to testify or not to testify, as you choose, at a trial?
"Do you understand that any statements or confessions previously made by you are subject to investigation by the Court as to whether they were voluntarily made?
"If not freely and voluntarily made they cannot be used on the trial. Do you feel that they were voluntarily made?
"Do you understand that at trial, witnesses would be presented and subjected to cross examination in your behalf?”
In People v Chappell, 44 Mich App 204, 207; 205 NW2d 285, 286 (1972), this Court concluded that it is not required to specifically relate the precise wording of defendant’s Jaworski rights to him. The Court stated: j
"Jaworski and Boykin v Alabama, 395 US 328; 89 S Ct 1709; 23 L Ed 2d 274 (1969), do not require a parroted incantation of defendant’s constitutional rights. What is required of the trial judge is that he convey to the defendant in a way defendant can understand, what his rights are So that he can act intelligently as concerns these rights. In this case the trial judge in plain and simple language conveyed to the defendant full information of his rights which he then knowingly waived.”
The separate written acknowledgements by defendant of his Jaworski rights are comparable to those given orally by the trial judge in Chappell. This distinction is not of reversible significance. People v Frederick Washington, 43 Mich App 551, 554-555; 204 NW2d 541, 543 (1972), is supportive in stating:
"Since the thrust of Boykin is to insure that defendant is aware of the rights which he waives by his guilty plea, it is unimportant how or when he receives the information, as long as it is clear from the record that defendant had such knowledge when he entered his plea.”
The prearraignment questionnaire, acknowledged by defendant at the plea-taking and later at the postconviction review, constitutes a part of the record of equal dignity and effect as that transcribed in a verbal proceeding. In fact, the Supreme Court considered the written statements of defendants taken in connection with their guilty pleas as part of the record in Jaworski, supra, and People v Butler, 387 Mich 1, 12-13; 195 NW2d 268, 273-274 (1972). Reference to the prearraignment questionnaire indicates that defendant was substantially advised of his constitutional right against self-incrimination and his right to confrontation.
Defendant offers no authority or policy reason in support of his contention that the absence of counsel at the time the questionnaire was completed invalidated the plea of guilty. Accordingly, this issue is deemed abandoned. People v Fusion Thomas, 36 Mich App 23, 26; 193 NW2d 189 (1972).
Affirmed.
All concurred.
MCLA 750.110; MSA 28.305.
MCLA 750.92; MSA 28.287.
The following requirements must be satisfied in order to obtain a new trial upon the ground of newly discovered evidence: (1) the evidence, and not merely its materiality, must be newly discovered; (2) the evidence must not be cumulative; (3) the evidence must render a different result probable on a retrial of the cause; and (4) the party could not with reasonable diligence have discovered and produced the evidence at trial.
"A new trial may be granted to all or any of the parties and on all or part of the issues whenever their substantial rights are materially affected, for any of the following causes:
"(6) Material evidence, newly discovered, which could not with reasonable diligence have been discovered and produced at the trial;
"(9) On any ground warranting a new trial specified in sub-rule 528.3.”
People v Jaworski, 387 Mich 21; 194 NW2d 868 (1972), requires that prior to acceptance of a guilty plea, the court must inform defendant that he waives his constitutionally guaranteed privilege against self-incrimination, the right to a jury trial, and the right to confront his accusers.
"The Court: And of course he has gone over this questionnaire which in short says that you are entitled to a jury trial or a trial before the judge. You have all the rights against incrimination and have the witnesses and you are presumed to be innocent, and the People have to prove you guilty beyond a reasonable doubt. Things that have been seized have to be tested for reasonableness, and statements have to be tested for voluntariness. What is his intent, Mr. Huck?” | [
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McGregor, J.
Defendant was charged, in an information filed on January 4, 1972, with first- , degree murder, MCLA 750.316; MSA 28.548, in the beating death of his seven-year-old adopted son. The child was beaten on November 5, 1971, and died the following day of an acute subdural hematoma. The people’s case was based wholly on circumstantial evidence, there being no eyewitnesses to the alleged crime. The defense filed a notice of alibi defense on February 1, 1972, pursuant to MCLA 768.20; MSA 28.1043. In that notice, defendant averred that, on November 5, 1971, he was away from his residence between the hours of 5 p.m. and 11:15 or 11:30 p.m., and that, upon arriving home, he found his son in an unconscious condition, unsuccessfully attempted to revive him, and thereafter obtained medical aid for the youngster. At the conclusion of proofs at trial, the court decided not to submit the issue of first-degree murder to the jury for lack of sufficient evidence of premeditation. On March 5, 1972, the jury found defendant guilty of second-degree murder, MCLA 750.317; MSA 28.549, and a judgment of conviction was accordingly entered. On April 19, 1972, appellate counsel was appointed to represent defendant in post-conviction proceedings. This appeal followed.
Although defendant has raised a number of issues in this Court, we think it necessary to deal only with one, i.e., whether the trial court committed reversible error by allowing the prosecutor to impeach the credibility of a defense witness through the use of testimony concerning prior arrests which did not result in convictions.
One of the witnesses called by the defense testified, on direct examination, that he had been with the defendant at approximately 7:30 p.m. on the night the victim was beaten. The prosecution’s cross-examination of that witness, in its entirety, was as follows:
"Q. [by prosecution]: Have you ever been arrested?
"A. Oh, yes.
"Q. What for?
"[.Defense counsel]: Are these questions proper, your Honor?
"[Prosecution]: As to a witness, I think so.
"A. I was picked up—
"[Defense counsel]: Are you ruling on that objection, your Honor?
"The Court: I will allow him to answer.
"A. I was picked up, on a C. C. W.
"Q. And what else?
"A. And a breaking and entering.
"Q. What about rape?
"A. I wasn’t picked up on that until just now.
"Q. Not until just now?
"A. Yes.
"[Prosecution]: That’s all.”
In People v Brocato, 17 Mich App 277, 302-303; 169 NW2d 483, 495-496 (1969), this Court stated:
"We now hold that a defendant testifying at his own trial may not be asked if he has been arrested or charged with crime, where the arrest or charge has not resulted in a conviction and where the only purpose of the questions is to impeach the defendant’s credibility as a witness. Where credibility is the only issue, the probative value of arrests and charges, unsubstantiated by a conviction, is slight at best. When weighed against the great danger that the jury, despite careful instructions, might misapply such evidence, the scales of justice tip in favor of exclusion. United States v Beno (CA 2,1963), 324 F2d 582.”
Subsequently, in People v James, 36 Mich App 550, 559-560; 194 NW2d 57, 62 (1971), we extended the Brocato holding to the impeachment of a defense witness, noting:
"The reasoning of our Court in Brocato applies with equal force in the case of a witness who is not a defendant; a distinction in this regard between the defendant and one of his witnesses cannot reasonably be drawn. Since the trier of fact is more likely to credit the testimony of disinterested third persons than the testimony of a keenly interested defendant, the defendant in many cases will be more dependent on the evidence offered by others than on his own testimony.”
See also Cachola v The Kroger Co, 32 Mich App 557; 189 NW2d 112 (1971), leave to appeal denied, 385 Mich 775, and compare People v Sesson, 45 Mich App 288; 206 NW2d 495 (1973).
There can be no doubt that the prosecutor’s cross-examination of the defense witness in this case was improper under James, supra. In light of the fact that the entire cross-examination consisted of improper inquiry regarding the witness’s arrest record, any claim of inadvertence is without merit. Further, the error was properly preserved by a specific and timely objection and we are unable to conclude, beyond a reasonable doubt, that the error did not contribute to the jury’s verdict. The trial court’s allowance of the improper cross-examination was reversible error.
Our disposition of the above issue renders unnecessary consideration of defendant’s remaining contentions which may not arise again during retrial.
Reversed and remanded for a new trial.
All concurred. | [
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Danhof, J.
Plaintiffs appeal from the trial court’s finding of no cause of action and judgment for defendants entered on November 24, 1970.
Plaintiff, Helen Bachor, is an 80-year-old widow. Her daughter, Dorothy Bachor, is a 58-year-old single woman who is deaf. Neither has had any formal legal training. They initiated the present action against defendants on October 23, 1969, with the filing of a complaint. They proceeded in pro per, because they had been allegedly thwarted by the prohibitive fees of private attorneys and the inaction by pro bono legal aid services.
Plaintiffs sought to recover Detroit police pension benefits as survivors of Walter Bachor, a former Detroit police lieutenant who, after retiring in 1939, died November 26, 1947. Plaintiffs also sought to recover the wages of Walter Bachor which allegedly were withheld by defendants between 1932 and 1934, plus accrued interest and punitive damages.
On November 18, 1969 defendants filed an answer which raised several affirmative defenses, among which were included: lack of standing by Dorothy Bachor, laches and the statute of limitations as to past wages, and the defense that plaintiffs were not entitled to any retirement or survivors’ benefits "in that they did not attain any eligibility nor did any subsequent amendments to the Charter of the City of Detroit retirement provisions retroactively include the plaintiffs, and therefore they are barred from any recovery”.
On November 26, 1969, plaintiffs filed an untitled pleading which was interpreted by the trial court as a reply to defendants’ answer. On the same date, plaintiffs filed a written demand for a jury trial. Thereafter, the record reveals a number of letters from plaintiffs to the trial court between January 20, 1970 and September 29, 1970. The correspondence consisted of affirmations by plaintiffs of their entitlement to relief and a history of the attempts by plaintiffs to obtain relief from Federal and city agencies — all of which resulted in failure. Plaintiffs also replied to the trial court’s advice that they seek legal representation by saying that all of the attorneys that had been consulted either thought they had no cause of action or took no action. Finally plaintiffs filed a motion for early pretrial and trial. The motion was granted and trial was ordered for November 23, 1970.
No jury fee payment was ever made by plaintiffs. On November 23, 1970, without objection by plaintiffs, a bench trial was had. Defendants made a motion for directed verdict early in the proceedings. After plaintiffs had testified, defendants’ motion was granted.
By order dated September 3, 1971 this Court waived its filing fees and ordered placed on the docket plaintiffs’ application for delayed appeal. By order dated January 10, 1972, plaintiffs’ application for delayed appeal was granted by this Court. The sole issue which confronts us is whether the trial court erred in failing to grant to plaintiffs a jury trial, where a request was filed, but where no payment of the jury fee was ever made.
The relevant statutory provision is MCLA 600.2537; MSA 27A.2537:
"In every case where a trial by jury is demanded, the party making the demand shall, at the time of filing the demand, pay to the clerk of the court the sum of $20.00. Failure to pay the fee within the time provided in the court rules constitutes, a waiver of the right to a jury trial. Such sum shall be taxed in favor of the party paying the same, in case he recovers a judgment for his costs.”
Also relevant is GCR 1963, 508.4, which in part states:
"The failure of a party to file a demand as required by this rule or to deposit the jury fee by the close of the pretrial conference constitutes waiver by him of trial by
This Court has on different occasions discussed the interpretation of GCR 1963, 508.4. In the case of Jinkner v Widmer, 3 Mich App 155, 157, 158, 159; 141 NW2d 692, 693-694 (1966), the question was "whether the trial court erred by ruling * * * that the admitted failure to pay the jury fee by the close of the pretrial conference constituted a waiver of trial by jury”. The Court held:
"The right to trial by jury is a substantive right guaranteed by the Constitution of the State of Michigan; see Const 1963, art 1, § 14. The manner in which this right is perfected is procedural and is governed by statute and court rule.
"Though it may be that this writer in passing upon the motion in the first instance might have provided a different result under the circumstances of this case, there is nothing shown herein to indicate that the trial court abused its discretion in denying the plaintiff a jury trial.”
In Ritchie v Macinkowicz, 3 Mich App 275, 279; 142 NW2d 45, 46-47 (1966), no written demand for a jury trial was made, nor was a jury fee paid, but the pretrial judge in his summary docketed the case for the jury calendar. The trial judge, finding no record of a written demand for a jury trial, nor proper payment of the jury fee, denied plaintiff a trial by jury. This Court, in affirming, said:
"Failure to demand a jury trial and to pay the jury fee by the close of the pretrial conference constitutes a waiver of the right to trial by jury. Const 1963, art 1, § 14, GCR 1963, 508.4. Although a jury trial may be granted after the close of the pretrial conference, notwithstanding the failure to demand a jury trial and nonpayment of the fee prior thereto, it lies within the sole discretion of the trial judge. Basmajian v Detroit, 256 Mich 539; 240 NW 87 (1932); Richey v Board of Education of County of Monroe, 346 Mich 156; 77 NW2d 361 (1956).”
Thus the law in Michigan, at the time these occurrences transpired, was clear. In filing their timely demand for a jury trial, plaintiffs had satisfied but one-half of the requirements laid down by statute and court rule. Once the close of pretrial conference had passed without payment of the jury fee, plaintiffs’ entitlement to a jury trial became a matter of discretion with the trial court. We hold that the trial court did not abuse its discretion by holding a bench trial in the case at bar. Admittedly, the trial court overlooked plaintiffs’ demand for a jury trial. This oversight would not have occurred, however, had plaintiffs either paid the fee, pleaded their inability to pay, or requested an exercise of the court’s discretion when it later became apparent that the trial was going to be held without a jury. Plaintiffs in this action decided to proceed in pro per, even though counsel had been repeatedly recommended. The right to a jury trial in civil cases must be carefully guarded, but it is nevertheless governed by statute and court rule. Appearance in pro per does not excuse all application of court rules, and neither should it in this instance.
Finally, plaintiffs claim that their indigency offers an excuse for failing to pay the requisite jury fee, citing Boddie v Connecticut, 401 US 371; 91 S Ct 780; 28 L Ed 2d 113 (1971). First of all, the holding of Boddie was narrowly confined to divorce actions, where state courts are the only avenue by which a citizen can obtain dissolution of a marriage. Secondly, plaintiffs were not denied access to the court, as were the plaintiffs in Boddie. Thirdly, plaintiffs in the instant case did not inform the trial court, until these proceedings had concluded, that their failure to pay the jury fee was caused by indigency. In a letter sent by plaintiffs to the trial court, dated August 28, 1970, plaintiffs did not claim indigency, but on the contrary expressed a willingness to pay the fee. They stated further, that they were told by someone that the fee did not have to be paid until the case was heard.
Although GCR 1963, 120.3 is not applicable to this appeal because it became effective October 4, 1971, its provisions are illustrative. Waiver or suspension of fees and costs is mandatory only upon the filing of an affidavit by a person stating facts showing that inability to pay fees and costs is due to indigency. Absent a timely request by plaintiffs to the trial court based on indigency, we cannot hold that the trial court abused its discretion by failing to Waive the jury fee.
Affirmed. No costs.
Adams, J., concurred.
A motion to dismiss under GCR 1963, 504.2 would have been more appropriate. | [
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J. H. Gillis, J.
Defendant, Revnell Couch, Jr., was convicted by a jury of manslaughter. MCLA 750.321; MSA 28.553. He appeals as of right.
On May 25, 1971, a neighborhood argument took place at the home of Dorothy Haney. Her daughter, Janet Harrell, age 6, was standing on the porch of the home when she was struck by a brick thrown at Dorothy Haney by the defendant. All of the numerous res gestae witnesses called to testify at trial corroborate those facts. However, there was serious dispute at trial among those witnesses as to the circumstances surrounding the throwing of the brick at Mrs. Haney.
Some testified Mrs. Haney drew a knife and ran towards defendant threatening imminent peril. They say defendant then picked up the brick and threw it in self-defense.
Others testified Mrs. Haney did not chase defendant with a knife until after the little girl was fatally wounded. Those witnesses say defendant was the aggressor.
Some witnesses said both versions were true. That is, they testified at trial that defendant acted to defend himself, while, at the same time admitted the truth of prior statements indicating the contrary.
Still other witnesses who corroborated defendant’s theory of self-defense at trial, admitted making prior inconsistent statements but denied the truth of the matters asserted therein.
Defendant’s statement to police, made shortly after the incident, was admitted. It did not remotely assert the claim of self-defense, but instead indicated the brick was thrown at someone else, but without an intention to harm anyone.
The prosecutor made several remarks during the argument concerning the obvious conflict in testimony. Defendant contends the remarks were inflammatory, prejudicial, and deprived him of a fair trial. We do not agree.
It should go without saying that an attorney for either party may argue to a jury that, in his opinion, the evidence shows a witness to be unworthy of credence. See People v Wirth, 108 Mich 307; 66 NW 41 (1896). Such argument may be based on the internal consistency of a witness’s statement, its relation to other testimony in the case, the likelihood or possibility of the events described by the witness, the fact of prior inconsistency by the witness, the opportunity or motive to fabricate, or a demonstrated inability to recount incidents normally within a person’s recall. In any case, argument on the credibility of witnesses should not be based on the superior knowledge of the attorney of facts or evidence not in the case. See People v Quick, 58 Mich 321; 25 NW 302 (1885); People v Dane, 59 Mich 550; 26 NW 781 (1886); People v Hess, 85 Mich 128; 48 NW 181 (1891); People v Ignofo, 315 Mich 626; 24 NW2d 514 (1946); People v Humphreys, 24 Mich App 411; 180 NW2d 328 (1970).
In our opinion, the remarks of the prosecutor, while severe, did not go beyond permissible limits. In essence, the prosecutor translated into layman’s terms many of the concepts just discussed.
For example, the notion stated by some witnesses that Mrs. Haney, after chasing defendant from her yard with a knife, ran back to the porch after seeing him throw the brick, in time to shield herself with the body of her child before the brick struck, is incredible. Furthermore, defendant’s prior statement of the incident revealed he threw the brick at someone other than Mrs. Haney. Arguing that a present assertion of self-defense from Mrs. Haney is recent fabrication from prior inconsistency is permissible. See, e.g., People v Russell, 27 Mich App 654; 183 NW2d 845 (1970). The fact that the prosecutor phrased his argument in words not as delicate as an Oxford don might have used does not require reversal.
During trial prior statements of several witnesses were offered by the prosecution to show inconsistency with their present testimony. Some of the witnesses acknowledged they made the self-contradictions contained in their signed statements. Some admitted the prior statements were true. To that extent, and over defense counsel’s objections, those statements were admitted as substantive evidence and not merely to show inconsistency. The jury was so instructed.
Had the statements made prior to trial been merely identified and the content denied, they could have been used only for impeachment pur poses. However, notwithstanding the fact that inconsistency is shown, so much of a prior statement as a witness adopts by admission of the truth of the facts contained therein, becomes substantive evidence. Perry v F Byrd, Inc, 280 Mich 580; 274 NW 335 (1937); Schratt v Fila, 371 Mich 238; 123 NW2d 780 (1963). We find no error.
Nor do we find error in the admission of defendant’s statement to police shortly after the incident. We are satisfied the trial court correctly determined the issue of the admissibility of the statement at a separate hearing pursuant to People v Matthews, 22 Mich App 619; 178 NW2d 94 (1970).
Defendant’s theory at trial was based on self-defense. To the extent the evidence permitted, defense counsel argued defendant was faced with an attack by a woman wielding a knife and that throwing a brick at her was a justified response. The jury was instructed, in essence, that a case of self-defense was made out if they found that defendant was not the aggressor; that he was in danger of suffering grievous bodily injury; and that there was no way open for retreat, leaving a physical response the only means of repelling the attack. See People v Etheridge Turner, 37 Mich App 226; 194 NW2d 546 (1971). We think those instructions were appropriate.
Since defendant was charged with manslaughter, his intent to kill anyone is not necessarily pertinent; however, at the very least, it must have been shown to the jury he did some unlawful act not amounting to a felony or naturally tending to cause death or great bodily harm. See People v Clark, 26 Mich App 475; 182 NW2d 632 (1970); People v Carter, 387 Mich 397; 197 NW2d 57 (1972).
The case, as presented, was described to the jury correctly. If, at trial, it had been defendant’s theory that he need not have feared grievous bodily injury, but only have suffered an assault, to justify his response, different considerations for the jury might have been appropriate. However, we are satisfied the jury, as instructed, was not precluded from determining the legality of defendant’s act from any standard in the law. Since the jurors, if they believed defendant was attacked, must have found defendant acted unreasonably if assaulted by a knife, it is difficult for us to understand how any lesser assault would have legitimated defendant’s brick-throwing response.
It was also proper for the trial court to refuse requested jury instructions describing assault and battery as a lesser included offense. People v Carabell, 11 Mich App 519; 161 NW2d 776 (1968); People v Dykes, 37 Mich App 555; 195 NW2d 14 (1972); People v Carter, supra, 422; 197 NW2d at 69.
Affirmed.
All concurred.
Some of the remarks assigned as prejudicial, taken out of context, are of the following flavor:
"That’s the most incredible story I’ve ever heard.
"And I suggest to you that if there were one speck of truth in that conjured up story that’s been put together between May the 25th and today’s date, if there were any truth at all in that story, it’s at that time that the defendant would have told that story to the police.
"And, for the life of me, if you believe anything else, then you are incapable of separating the truth from the lies or fact from fiction.
"[Y]ou can’t escape the conclusion that someone in this case, in fact, many persons in this case, are lying. And those lies are fabricated, perjury, itself an offense under the law. That’s the disgusting part about this case, that people can sit back and think and deal with the death and plan and then come in here and lie to you [the jury].
"But they knew that if they told the truth in this courtroom, there would be no defense for the defendant and so we heard the parade of lies not even artfully constructed in the same language, witness after witness after witness, identical words. As though the plot were written * * * .” | [
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] |
J. H. Gillis, J.
The trial court ordered the dissolution of Samaritan Hospital Association, a nonprofit corporation, and the sale of all its assets, including certain x-ray equipment, located at Samaritan’s Clinton Valley Hospital. American Hospital Supply Corporation asserted the priority of its interest in the x-ray equipment on the strength of an after-acquired property clause in a November, Í967, security agreement. Fan-Gil Corporation and Doctors Katz and Fannin claimed their purchase money security interest in the equipment deserved priority.
American appeals the trial court’s recognition of Fan-Gil’s security interest and its subsequent award of approximately $10,000 from sale proceeds. Fan-Gil has cross-appealed, asserting the trial court erred in holding Fan-Gil estopped to recover the full balance of Samaritan’s obligation and requiring it to share sale proceeds on a pro rata basis with other secured creditors.
The facts demand our close attention as they are ultimately dispositive of the parties’ rights. American sold hospital supply equipment to Samaritan from 1963-1965, receiving in return a promissory note and security interest in certain property. Thereafter, in 1967, Samaritan refinanced its indebtedness to American, executing a promissory note for a larger amount and extending the security agreement to include after-acquired property. The financing statement evidencing this agreement, filed November 2, 1967, fully complied with MCLA 440.9401(l)(d); MSA 19.9401(l)(d).
Late in 1967, two radiologists employed at Clinton Valley Hospital sought to terminate their 1964 employment contract with the hospital, apparently because the hospital had not reimbursed them for their services. The doctors desired to be paid for these services and also to sell the x-ray equipment to the hospital. Testimony indicated that the parties intended the transaction to remain incomplete until they could agree on an amount which would include both personal services and the x-ray equipment. By December 15, 1967, the doctors had terminated their association although the parties had not yet agreed on a sale price. That month, a sales and security agreement was prepared in which the date and an amount for personal services were left blank. The agreement indicated the x-ray equipment would be sold for $18,150. "This agreement further provided for $1,000 monthly payments, $500 applied to the x-ray equipment debt, and $500 to the personal services debt.
A bill of sale dated January 22, 1968, and signed by the parties conveyed the x-ray equipment to the hospital, but also provided the sale was subject to the terms of the security agreement.
On February 2, 1968, Samaritan paid Fan-Gil $1,000. Samaritan apparently offered this as a good faith payment to appease Fan-Gil’s anxiety about the delay in reaching agreement on the personal services debt. On February 9, 1968, the doctors’ accountants sent their final audit of the debt owed for personal services to the hospital, and a duplicate of their report to Fan-Gil’s attorney. Sometime during the week of February 12, 1968, the sale and security agreement was delivered to Fan-Gil. Fan-Gil filed its financing statement on February 22, 1968.
American asserts the priority of its interest, claiming Fan-Gil, the purchase money creditor, failed to perfect its interest as required by MCLA 440.9312(4); MSA 19.9312(4). If the purchase money creditor neglects to timely perfect his interest, the rights of the secured creditor claiming under the after-acquired clause remain paramount. National Cash Register Co v Firestone & Co Inc, 346 Mass 255; 191 NE2d 471 (1963).
American contends that Fan-Gil’s security interest was not timely perfected since their interest attached as early as December 1967 when Samaritan received possession of the collateral, but Fan-Gil filed no financing statement until February 22, 1968. Citing Semple v State Farm Mutual Automobile Insurance Co, 215 F Supp 645 (ED Pa, 1963), they argue in the alternative that the security interest attached, at the latest, on February 2, 1968, since on that date an agreement for. security existed, value had been given, and the debtor had rights in the collateral. Value of $2,000 was given on February 2, 1968; the debtor had rights in the collateral by its continuing possession; and the December 1967 security agreement provided and $18,150 amount for the x-ray equipment and $8,764.98 for personal services. American argues that even if the figure for personal service was inserted at a later time, the $18,150 amount was part of a separate agreement.
Fan-Gil asserts parol evidence is proper to show that the parties inserted the personal services amount at a later date. They also claim parol evidence is admissible to vary the January 22, 1968, bill of sale date to prove the transaction could not have been consummated until the week of February 12, 1968.
While we agree the trial court properly admitted parol evidence, we justify its admission on a different basis. Fan-Gil has cited extensive authority for the rule that the date written on the instrument is only presumptive evidence, and the true date may be shown by evidence aliunde. The law as stated does not apply to these facts since Fan-Gil has never suggested that the bill of sale was executed on a date different from January 22, 1968. For example, Cook v Knowles, 38 Mich 316 (1878), does provide authority for the claim that evidence of a delivery date later than the date of execution of an instrument may be shown. However, in light of the abolition of reliance on the passage of title, we think better grounds exist to sustain appellees’ position.
Several courts have suggested that UCC 2-202 was meant to liberalize the presumption that a written contract is the total and final expression of the parties’ agreement. Cf. Zwierzycki v Owens, 499 P2d 996 (Wyo, 1972), and cases cited therein. We agree with that line of cases and Illinois C R Co v Brotherhood of Locomotive Engineers, 443 F2d 136 (CA 7, 1971), which approved the use of parol evidence to prove the intended integration of separate documents in a single agreement.
Finally, and more traditionally, parol evidence is admissible to explain the ambiguities in the various instruments here at issue. Ambiguities needing explanation included the statement that the bill of sale was subject to the sales agreement, the omission of the date from the security agreement, and the handwritten figure for personal services included in the otherwise typewritten security agreement. For all the above reasons, parol evidence was properly admitted.
We disagree with American’s contention that the security interest attached on February 2, 1968, at the latest. No agreement for security existed until the amount owed for the equipment and the personal services was settled. MCLA 440.2305(4); MSA 19.2305(4), expressly contemplates a situation where the parties do not intend to be bound until the price is agreed upon. Testimony indicated agreement between the parties was impossible until the week of February 12, 1968. The trial judge properly concluded that Fan-Gil’s timely filed security interest took priority over American’s interest in the collateral.
The next issue is whether the trial court erred in finding Fan-Gil estopped to collect the full balance due from sale proceeds. The trial court permitted Fan-Gil to collect only 58.5% of the balance due, the same rate as other secured creditors. Fan-Gil argues that no penalty should be exacted for its agreement permitting the equipment to remain on the premises, and that its consent operated to confer a benefit on the hospital by allowing the hospital to extract the maximum price from the sale of the hospital as a going concern.
Certainly, Fan-Gil conferred a benefit on the hospital by not removing the x-ray equipment. However, Fan-Gil also received a benefit from the receiver and other secured creditors. Fan-Gil never demonstrated that a separate sale would have resulted in a higher price for the equipment. The trial court could have reasonably found that a separate sale would probably have returned less. A separate sale would have required removal, transportation, and reinstallation of the equipment at the buyer’s place of business. A reasonable buyer would have considered this factor and reduced his offer if he bore the expense; conversely, if Fan-Gil had borne the expense, its profits would have been substantially reduced. Sound business sense leads us to conclude that if Fan-Gil could have realized a greater profit by a separate sale, Fan-Gil would have done so.
Adoption of Fan-Gil’s position would mean that all secured creditors who consent to a sale of their collateral as part of a functional unit to realize going concern value could claim the full balance owed irrespective of the amount recovered on the sale. The unpaid balance owed could easily exceed the proceeds. Principles of equity and logic require rejection of this view. One who retains the benefits of a transaction which he has the right to accept or reject cannot avoid its obligations. Merriman v Westlawn Cemetery Association, 304 Mich 12; 7 NW2d 126 (1942).
The trial court decision is affirmed. No costs, neither party having prevailed in full.
All concurred.
Hereafter, for convenience, American Hospital Supply Corporation will be referred to as American, Samaritan Hospital Association as Samaritan, and Fan-Gil Corporation and Doctors Katz and Fannin as Fan-Gil.
Because of the low sale price and service indebtedness of the hospital, only secured creditors shared in sale proceeds.
MCLA 440.9401(l)(d); MSA 19.9401(l)(d), provides: "The proper place to file in order to perfect a security interest is as follows:
"(d) in all other cases, in the office of the secretary of státe.”
MCLA 440.9312(4); MSA 19.9312(4), provides: "A purchase money security interest in collateral other than inventory has priority over a conflicting security interest in the same collateral if the purchase money security interest is perfected at the time the debtor receives possession of the collateral or within 10 days thereafter. ” (Emphasis supplied.)
MCLA 440.9202; MSA 19.9202, provides: "Each provision of this article with regard to rights, obligations and remedies applies whether title to collateral is in the secured party or in the debtor.”
The parallel Michigan enactment is MCLA 440.2202; MSA 19.2202, which provides: "Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented (a) by course of dealing or usage of trade (section 1205) or by course of performance (section 2208); and (b) by evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement.” | [
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Bronson, P. J.
Plaintiff, Forrest G. Wright, appeals by leave granted from a decision of the Workmen’s Compensation Appeal Board. On December 3, 1968 the hearing referee issued two decisions. In the first the referee found, in pertinent part: "The plaintiff sustained a new work-connected back injury in December, 1963, which disables him from engaging in his occupation of lineman”. On the fourteenth of July, 1972, this decision was affirmed by the Workmen’s Compensation Appeal Board. In affirming this decision of the referee the board opinion is supported by the record and we must affirm. MCLA 418.861; MSA 17.237(861).
In the referee’s companion decision issued on the same date the referee found inter alia:
"IT IS FOUND that the plaintiff is not totally and permanently disabled within the meaning of sections 10(b) of Part II of the act and, therefore, is not entitled to compensation under section 9 of Part II since he does not have permanent and total loss of industrial use of both legs. IT IS FURTHER FOUND, however, that he sustained a new injury on 12-1-63, as set forth in companion decision of even date.”
This decision sets the stage for the present controversy. By way of background plaintiff, for approximately 20 years, was a tree trimmer and a lineman for the defendant Thumb Electric Company. This job involved extensive pole climbing, tree climbing and various forms of lifting. The board affirmed the referee’s determination that plaintiff suffered from a disabling back injury arising out of and in the course of this employment with Thumb Electric. The testimony demonstrates that plaintiff has undergone five surgical operations to correct the resulting disabling pain.
The question presented is whether plaintiff has suffered "permanent and total loss of industrial use of both legs” within the meaning of the statute. MCLA 412.10, as amended by 1956 PA 195; MSA 17.160. We must affirm if the board applied the proper legal standard to their findings of fact if there is any evidence to support their findings. The board found inter alia: "Dr. Townley testified that plaintiff’s legs did not indicate any objective findings and that he could use his legs for various types of work”.
It is clear from this finding alone that the board has not applied the proper legal standard in their determination. Direct injury to the legs is not required. Paulson v Muskegon Heights Tile Co, 371 Mich 312; 123 NW2d 715 (1963); Lockwood v Continental Motors Corp, 27 Mich App 597; 183 NW2d 807 (1970).
In Lockwood, supra, now Justice Levin explained:
"[A] teaching of Paulson is that disabling symptoms are traceable to the use of the lower limbs when they are due to an impairment of another bodily mechanism which is aggravated by leg movement, that compensation for total and permanent disability is payable when a non-leg malady is triggered by the use of the legs and it is that condition which prevents use of the legs in industry.” Lockwood v Continental Motors Corp, 27 Mich App 597, 603; 183 NW2d 807, 810 (1970).
Applying Paulson we observe that the board found: "The medical evidence fully supports the referee’s finding of a totally disabling work-connected back injury date on plaintiffs last day of employment”. If this back injury is "aggravated by leg movement” and is "triggered by the úse of the legs and it is that condition which prevents the use of the legs in industry”, then the plaintiff, Forrest Wright, has suffered the loss of industrial use of both legs within the meaning of the statute. Even though our review of the record in this case indicates evidence to support such a conclusion, the board has not made findings of fact with consideration for the proper legal standard. We are not the fact finding body and will not invade this function of the board.
In support of their conclusion that plaintiff had not suffered the loss of industrial use of both legs the board quoted Dr. Townley as testifying that plaintiff could use his legs for various types of work. Our careful search of the entire testimony of Dr. Townley brings to light no statement by Dr. Townley which would support this finding. When issuing their findings the board should indicate the testimony adopted, the standard followed and the reasoning it used in reaching its conclusion. Lamb v John’s Tavern, 37 Mich App 678, 681; 195 NW2d 278, 280 (1972).
We are not unmindful of Miller v Sullivan Milk Products, Inc, 385 Mich 659; 189 NW2d 304 (1971). In Miller the plaintiff failed to establish his claim of loss of industrial use of both legs because it was undisputed that one of his legs was unimpaired. In addition the use of this leg did not trigger a work-connected disabling injury as is the case in Paulson, supra, Lockwood, supra, and apparently the present controversy. In Miller, supra, Justice Adams noted that each claim of this nature must be weighed carefully. Justice Adams indicated that some claims will fail and some will prevail depending upon the quality of the proofs presented at the hearing. When reconsidering this matter on remand, the board may wish to take cognizance of Justice Adams’ remarks and take further testimony in light of the proper legal standard.
Reversed and remanded for proceedings consistent with this opinion. Costs to plaintiff.
All concurred.
Now MCLA 418.361(2)(g); MSA 17.237(361)(2)(g).
The following testimony of Dr. Townley is representative:
"Mr. Ducey: When ydu first saw him [plaintiff].
"A. [Dr. Townley]: He was complaining of pain in both legs.
"Q. (By Mr. Sharpies): Pain in both legs?
"A. I think. That’s typical of a spondylolisthesis, you see, because it’s a pulling forward and they’ll have generalized pain in the legs or one worse than the other or equally or maybe just one with occasional splaying to the other side. That’s typical of spondylolisthesis. 'Both legs, which, was worse in the left.’ ” (Deposition of Dr. Townley, p 39.)
Testimony of similar import can be found in the deposition of Dr. Townley at pages 13,17, 26, 27, and 31. | [
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V. J. Brennan, P. J.
Defendant is a physician, licensed to practice medicine in the State of Michigan. He was charged with a violation of the Michigan uniform narcotic drug act. MCLA 335.51 et seq.; MSA 18.1071 et seq. He was charged with violating the following statute:
"A physician or a dentist, in good faith and in the course of his professional practice only, may prescribe, administer, and dispense narcotic drugs, or he may cause the same to be administered by a nurse or interne under his direction and supervision.” .'MCLA 335.57(1); MSA 18.1077(1).
The specific accusation in the information was that he prescribed,
"certain narcotic drugs, to wit, Methadone, cocaine, dilaudid, and morphine sulphate and numorphan, by means of a written prescription, to certain persons, said persons known to him to be narcotic users or addicted to the use of narcotics, whose names are: LOUIS NEBULONE, SHIRLEY DAVIES, ROBERT KREUGER, MARIO DIVITA and PETER GIORDINO, and by so doing was not practicing in good faith and in the course of his professional practice.”
The defendant doctor admitted prescribing such drugs to the named individuals knowing them to be addicted to the use of narcotics. The doctor denied that his actions were not in good faith, or not in the course of his professional practice. One doctor, who was not actively engaged in the practice of treating narcotic addicts, testified on behalf of the state. Two doctors testified on behalf of the defendant, as did the defendant. The trial court gave a very thorough charge to the jury regarding "good faith”. He was, nevertheless, convicted by a jury of the offense charged and now appeals as of right.
Defendant’s first contention that the statute under which he was convicted is unconstitutionally vague and therefore void as a denial of due process has been considered and rejected by both the Illinois and California Supreme Courts. In People v Guagliata, 362 Ill 427; 200 NE 169 (1936), defendant was a licensed physician and pharmacist who was convicted of selling a narcotic drug in violation of an Illinois statute whose terms were identical to § 7(1) of the Michigan uniform act, except that the Illinois statute used the phrase "habit forming drugs”, rather than "narcotic drugs”.
Defendant contended that the statute was unconstitutional because the words used in it, "good faith”, had no common or generally accepted meaning and the statute created an offense in ambiguous and uncertain language. The Supreme Court rejected the contention, saying:
"The words complained against have been defined in many cases in many jurisdictions. In Crouch v First Nat Bank, 156 Ill 342, [357; 40 NE 974, 979 (1895)], we said that 'good faith’ means 'honest, lawful intent,’ and in McConnel v Street, 17 Ill 253 [1855], we said that 'good faith’ is 'the opposite of fraud and bad faith.’ Numerous cases in other jurisdictions give substantially similar definitions. A liberal construction should be given constitutional provisions in order to sustain legislative enactments, and all doubts and uncertainties arising from the constitution, as well as the statute, should be resolved in favor of the validity of the statute. (People v McBride, 234 Ill 146 [84 NE 865; 123 Am St Rep 82; 14 Ann Cas 994 (1908)].) The words 'good faith,’ as used in paragraph 3, have a definite and well understood meaning, are free from ambiguity, and their use in the act does not violate the due process clause of the State or Federal Constitution. People v Anderson, 355 Ill 289 [189 NE 338 (1934)]; Amberson v Amberson, 349 Ill 249 [181 NE 825 (1932)].” 362 Ill at 432-433; 200 NE at 171.
Defendant in this case does not distinguish Guagliata. He notes only that the Illinois statute was amended after the opinion and suggests that Guagliata be limited to the Illinois Constitution and cases. Guagliata is persuasive authority against defendant’s first contention. The words "good faith” in similar narcotics legislation were held not to be so vague and indefinite as to violate Federal due process by the California Supreme Court in People v Nunn, 46 Cal 2d 460; 269 P2d 813 (1956).
Defendant contends that § 18 of the uniform narcotic drug act compels a defendant in a prosecution under the act to assume the burden of proof that he did act in good faith. We do not read the section that way. Section 18 provides:
"In any complaint, information, or indictment, and in any action or proceeding brought for the enforcement of any provision of this act, it shall not be necessary to negative any exception, excuse, proviso, or exemption, contained in this act, and the burden of proof of any such exception, excuse, proviso, or exemption, shall be upon the defendant.” MCLA 335.68; MSA 18.1088.
Lack of "good faith” is a substantive element of an offense charged under § 7(1). It is not an exception, excuse, proviso, or exemption contained in the act. Such exceptions, excuses, provisos, and exemptions referred to are matters of defense which, if presented in a prosecution at all, would have to be presented by defendant. For example, §8(l)(b) exempts from the application of the act preparations which are suitable for external use only and which contain narcotic drugs other than cocaine in such combinations as prevent their being readily extracted. Thus, in the prosecution of the present case, the people, by virtue of § 18, would not have to present evidence that the narcotics furnished by defendant were not contained in preparations exempted under § 8(l)(b). If the narcotics were, in fact, contained in a liniment exempted by § 8(l)(b), it would be up to defendant to prove that fact as a matter of defense. The people would not have to prove lack of an exemption as part of their case.
This section simply repeats the general statutory provision that negating statutory exceptions is unnecessary in prosecutions. MCLA 767.48; MSA 28.988.
Defendant contends that the uniform act’s references to and reliance upon Federal narcotics laws amounts to an unconstitutional delegation of state legislative power to Federal congress and agencies. The subject references are contained in § 1(13), (14), and (15). MCLA 335.51(13), (14), and (15); MSA 18.1071(13), (14), and (15). Subsection 13 adopts as a catalogue of "narcotic drugs” the substances designated as such by the United States Treasury Department. Subsection 14 defines "federal narcotic laws”. Subsection 15 refers to and adopts for use the official narcotics order form provided by the United States Commissioner of Internal Revenue.
Defendant particularly complains of subsection 13 which includes as narcotic drugs under the act synthetic narcotic drugs "which the bureau of narcotics of the United States treasury depart ment has designated as 'narcotics.’ ” He points out that two of the drugs which he is charged with having prescribed (methadone and dilaudid) are not mentioned specifically in the state uniform act.
The contention is without merit. While it is true that a state may not delegate its powers to the Federal government, it may adopt existing Federal legislation by reference. 16 CJS, Const Law, § 133, at p 563. State legislation which might become subject to future enactments of the Federal government amounts to an unconstitutional delegation of state legislative power. Dearborn Independent, Inc v Dearborn, 331 Mich 447; 49 NW2d 370 (1951). That case held invalid a statutory requirement that a newspaper used for publication of legal notices "shall have been admitted by the United States post-office department for transmission as mail, matter of the second class”. Independent, supra, at p 454; 49 NW2d at p 375. The Court held that that provision "would make the validity of the publication of legal notices depend upon the future as well as present regulations of the United States post-office department”, Independent, supra, at p 454; 49 NW2d at p 376, and "[t]he statute * * * attempts to incorporate into its standards any future changes of postal regulations as to second-class mail”. Independent, supra, at p 456; 49 NW2d at p 376.
The second-class mail requirement of the statute in Independent was written in the future tense. The Federal definition of narcotic drugs in the present case is in the past tense: "which the bureau of narcotics of the United States treasury department has designated as 'narcotics.’ ” MCLA 335.51(13); MSA 18.1071(13). (Emphasis added.)
More importantly, defendant is not capable of raising the issue because he does not establish his standing. As a general rule of construction, the validity of a statute cannot be attacked on the ground that the statute is invalid when applied to a hypothetical situation not involved in the case. General Motors Corp v Attorney General, 294 Mich 558; 293 NW2d 751 (1940). The drugs methadone and dilaudid were included in the Federal Harrison narcotics acts at the time the uniform narcotic drug act was adopted in Michigan in 1937. Defendant cannot show that the section is invalid as to him because the two drugs were not added by Federal action subsequent to the state legislation.
Defendant’s final issue is frivolous.
He states that the title of the uniform act is unconstitutional because it embraces more than one object, namely, regulation of the legitimate use of drugs and prohibition of their illegitimate use. He cites In the Matter of Charles Houck, 70 Mich 396; 38 NW 269 (1888), for the proposition that regulation and prohibition are not synonymous. We agree so far. He then represents that regulation and prohibition are separate and distinct objects which cannot be combined in one act. In this, defendant is wrong. Beacon Club v Kalamazoo County Sheriff, 332 Mich 412; 52 NW2d 165 (1952), adequately answers defendant’s contention. Regulation and prohibition may be accomplished in one act because "any regulation of the trafile involves, of necessity, a prohibition of conducting the business in defiance of the regulations”. Beacon, supra, at p 422; 52 NW2d at p 169. The uniform act does not have more than one object, the control of narcotics traffic.
Conviction affirmed.
All concurred.
This enactment has since been repealed, and replaced by the new Controlled Substances Act. 1971 PA 196, § 66, effective April 1, 1972. | [
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Per Curiam.
A judgment of divorce on a complaint filed by plaintiff wife was entered on March 31, 1970 in Kent County Circuit Court. The judgment provided, among other things, for child support of $25 per child per week for the three minor children and for visitation privileges.
Between the judgment of 1970 and the filing of the petition to amend the judgment of divorce on which this appeal is founded, various petitions and orders concerning visitation disputes and schedules were filed and entered on behalf of plaintiff.
Defendant appeals from two orders entered on July 31 and September 25, 1972, which gives rise to consolidated appeals.
Under date of July 14, 1972 plaintiff’s attorney signed and filed, without verification by plaintiff, a "Motion to Amend Judgment of Divorce” and requested that (1) defendant’s visitation rights be limited; (2) a permanent injunction be granted preventing defendant from entering plaintiff’s house under any circumstances, and (3) the child support be increased to $50 per week per child.
The trial judge entered an order curtailing defendant’s visitation privileges, granting the permanent injunction, and increasing the child support from $25 to $40 per week per child. Defendant filed a petition for rehearing and relief from the order amending the judgment of divorce. The trial court denied it. Defendant appealed of right.
In effect, his argument is that the claimed service upon him was fatally infirm and conferred no jurisdiction upon the court to amend the judgment and that he has been denied his day in court and any opportunity to present evidence in his own behalf.
Plaintiff replies that defendant had actual knowledge of the pendency of the proceedings whether the service on him was infirm or not, and that besides his attorney of record was served as provided for by GCR 1963, 107.2(1). We address ourselves first to the question of service.
Notice of hearing was signed and filed by plaintiff’s attorney and sent to the attorney who represented defendant in the original proceedings, stating that the motion was noticed for hearing on Friday, July 21, 1972.
Both the motion and notice of hearing were dated four days prior to the July 18, 1972 filing.
Plaintiff’s attorney has signed an affidavit that defendant’s then attorney of record phoned deponent on July 18 or 19, 1972 and stated that he had discussed the pending motion with defendant by phone and was advised that defendant no longer wished that attorney to represent him on the pending motion.
Plaintiff and her attorney appeared on July 21, 1972 at the appointed hour and neither defendant nor anyone in his behalf appeared. The trial judge was advised of the phone conversation and deponent says the trial judge "instructed plaintiff to personally serve on defendant an order to show cause on the next occasion that defendant came to visit the children”.
The trial judge then issued a show cause order to be served on defendant no later than Thursday, July 27, at 7:30 p.m.
It should not be an approved practice for the trial bench to "instruct” or authorize one party litigant, particularly in the often emotionally charged atmosphere of proceedings to amend a judgment of divorce, to effect personal service on the adverse party.
Plaintiff relies in part on Gmelin v Gmelin, 324 Mich 590, 593; 37 NW2d 561, 563 (1949):
"The petition to modify the decree was filed in the original proceeding, and rested on the theory that it related to a phase of the case over which the court retained jurisdiction. It was not a new and independent proceeding. Metzinger v Metzinger, 310 Mich 335; 17 NW2d 203 (1945). Michigan Court Rule No. 8 (1945) makes specific provision for the service of papers by mail on an attorney of record.”
Gmelin, supra, is obviously controlling if the prior trial counsel was the "attorney of record” within the meaning of the opinion.
We think the time has arrived to come to grips with the question of when an attorney who represented one party in divorce proceedings ceases to be the "attorney of record” for the purpose of valid service under settled case precedent, and the cited rule.
It is no part of logic that, because a court retains jurisdiction over the subject matter of litigation, an attorney who has concluded his professional obligation in the proceedings, and who has been paid (or often has not), has the status of an "attorney of record” for the balance of his professional career. When a judgment of divorce has been entered, the litigation as far as the attorney is concerned is concluded. Because one party continues to employ the same counsel does not oblige the other party to do likewise. We hold that a party who rests the validity of service upon an attorney who represented the other party before the entry of a final judgment of divorce does so at his peril.
It may well be that the relief granted by the trial court was justified by the record made. By our action here we indicate no opinion on the merits. We do feel that the questionable nature of the service, plus the timely action of defendant in seeking relief from the trial court’s order, dictates that a complete record be available to the trial judge.
We vacaté the order denying defendant’s petition for rehearing and to amend the judgment. We remand to the trial court for an additional hearing with personal service of the notice thereof to be made on the defendant by someone other than the plaintiff. Costs to abide the outcome of the rehearing.
We do not pass on the question of actual notice since the record is unclear as to whether defendant’s former attorney of record specifically informed defendant as to the time and place the pending motion would be heard. | [
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Per Curiam.
Defendant appeals as of right from his conviction by jury of first-degree murder. MCLA 750.316; MSA 28.548.
Early on the morning of June 8, 1971, police officers discovered the bodies of Barbara Reed and Glenn Williams lying in an alley near the rear of an apartment building in the City of Detroit. Later that same day police discovered bloodstains and drag marks indicating that the bodies had been dragged into the alley from the apartment building. After searching the basement and three of the four apartments in the building without success, the officers observed defendant approach the door to his apartment. They allegedly requested and received defendant’s permission to search the premises. Defendant was arrested after the police noticed a pair of trousers with bloodstains soaking in a sink, and defendant equivocated as to his ownership of the trousers and the origin of the bloodstains.
Defendant was tried by a jury on two separate informations charging him with first-degree murder. Charles Long and John Zellner, testifying for the prosecution, stated that on the night of June 7, 1971 they went to the apartment in question and were admitted by defendant, who was holding a revolver in his hand and immediately told them that he wanted to "off” somebody in the back room. The trio proceeded to the rear of the apartment and observed Mrs. Reed and Williams in bed. Defendant allegedly shot Williams and, with varying degrees of assistance by Long and Zellner, strangled Mrs. Reed, after which the witnesses dragged the bodies into the alley and cleaned up the blood inside the apartment. Zellner and Long attributed their participation in the macabre events to their fear of defendant.
Defendant did not testify. He was convicted of first-degree murder as to both victims, was sentenced to life imprisonment in each case, and now appeals.
Issue I
Did defendant validly consent to the search of his apartment?
By way of a pretrial motion to suppress certain incriminating evidence seized by police officers in his apartment, defendant contended that he did not consent to the search and argued that the evidence had therefore been improperly seized. At an evidentiary hearing on defendant’s motion, Detective Sergeant Lloyd Clemons testified that he observed defendant approach the apartment door and insert his key in the lock, whereupon Clemons identified himself as a police officer, showed defendant his badge and identification, card, asked if defendant lived there and, when defendant responded affirmatively, requested and received permission "to come in and take a look around”. Officer Clemons stated that the only persons present in the hall at this time were himself, his police partner, and defendant. Defendant was not advised of his Miranda rights at the time of entry because he was not suspected of anything at that time.
Officer Clemons’ testimony was corroborated by his partner, Officer Gilbert Hill. Hill stated that defendant had not only consented to the officers’ entry, but "was quite courteous and genial” and was "quite cooperative”. Hill indicated that at the time of entry he, Clemons, defendant, and at least one other plain-clothes officer were present in the hallway.
The manager of the apartment building first stated that "they [the officers] was not belligerent, they didn’t push him around or anything, they just told him to open the door and he opened it”, but later stated that he neither heard any conversation at all between the officers and defendant nor observed anyone enter defendant’s apartment at the time in question.
Defendant testified that two detectives and two patrolmen ordered him to open the door, that he told them they could not enter until they showed him a search warrant, but that the officers pushed their way into the apartment.
At the conclusion of the evidentiary hearing, the trial court ruled that defendant had validly consented to a search of his apartment. Defendant challenges the accuracy of this determination.
Defendant argued at the evidentiary hearing and now contends that he could not validly have consented to the search since the police did not first inform him that he had a constitutional right to refuse permission to search in the absence of a search warrant. In Schneckloth v Bustamonte, 412 US 218, 248-249; 93 S Ct 2041, 2059; 36 L Ed 2d 854, 875 (1973), the United States Supreme Court recently resolved this issue adversely to defendant’s contention. The Court there concluded:
"Our decision today is a narrow one. We hold only that when the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances, and while the subject’s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.”
The law concerning consensual searches is stated in People v Kaigler, 368 Mich 281, 294; 118 NW2d 406, 413 (1962), as follows:
"It is elementary that the obtaining of a search warrant may be waived by an individual and he may give his consent to search and seizure; but such waiver or consent must be proved by clear and positive testimony and there must be no duress or coercion, actual or implied, and the prosecutor must show a consent that is unequivocal and speciñc, freely and intelligently given. ’’(Emphasis by the Court.)
In the light of the above-quoted standards, the trial judge did not err in deciding that defendant had validly consented to a search of his apartment.
Issue II
Did the trial court err by allowing into evidence statements made by defendant before he was advised of his constitutional rights?
During trial, defense counsel demanded and obtained an evidentiary hearing in the absence of the jury to determine the admissibility of certain statements which defendant made to police officers shortly after they entered his apartment and be fore they advised him of his constitutional rights under Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966). At this hearing, Officer Hill testified that defendant cooperated fully with their search of his apartment by walking about with the officers and pointing things out to them. The officers noticed a pair of trousers bearing apparent bloodstains soaking in the kitchen sink. Officer Hill testified regarding this incident as follows:
”Q. What happened when you noticed the pants in the kitchen?
'A. We asked Mr. Reed either if those were his trousers or whose trousers they were or whatever.
”Q. Did you receive a reply?
”A. Yes, sir. * * * He said they were his trousers and that the stains were blood that he had gotten on them at his home on Marlborough when he and his little cousin were playing around with the lawnmower.
”Q. Did you make any response to that answer?
’A. I did.
”Q. What was that, sir?
"A. I told him that if the blood on the trousers and the blood in the water matched the blood of the deceased, he would be in trouble.
”Q. What did Mr. Reed do at this time, if anything?
'A. He changed his story about the trousers.
”Q. What did he indicate to you the second time?
”A. That he found the trousers on the back steps.
’’Detective Hill: Found the trousers on the back steps of 959 Emerson.
”Q. (by Mr. Bahen): Did he indicate to you why he picked them up?
”A. Yes. He said that they appeared they might fit him. So he brought them in to soak the blood out of them.
"Q. Now, at this time, was Mr. Reed under arrest when he made this second statement?
* * *
”A. No. He was not placed — he wasn’t placed under arrest or restricted at that time.”
The witness stated that at the time of these statements he, his police partner, and two or three other officers were on the premises. According to Hill, defendant was advised of his Miranda rights immediately after he changed his story concerning ownership of the trousers, but he was not arrested until later when a police chemist identified the stains as blood.
On cross-examination Officer Hill related that before entering defendant’s apartment he and his partner had searched the rest of the building without discovering evidence of a homicide, and that upon entering defendant’s premises the physical layout caused him to conclude immediately that the apartment was a "narcotics pad”. After walking through the living room and dining room without discerning evidence of the killings, Officer Hill entered the kitchen and noticed the trousers bearing what appeared to be bloodstains. The witness testified:
"Q. Did the thought occur to you at that time, Sergeant Hill, that the pants were soaking in order to get blood out of them?
'A. Yes.
”Q. Did you think at that point that you were getting closer and warmer to a discovery or a determination of the place of the killings of those two people?
”A. We felt a lot better — I felt a lot better.
"Q. You felt you were closer?
”A. I felt better.
"Q. Answer the question, Sergeant Hill. Did you feel closer?
'A. No. I didn’t feel that close at that time.
"Q. What do you mean you 'felt better’?
"A. I felt that after going through the apartment on the second floor in Mr. Gray’s apartment and finding nothing, and seeing the blood there, I felt maybe we were on the right track. I felt a lot better.
"Q. You felt maybe you were on the right track?
"A. Yes.
"Q. Now, at some point you told Mr. Reed that if the blood on the trousers was the same as the blood of the two deceased persons, then he, Mr. Reed, 'was in trouble,’ or something to that effect?
"A. Yes, sir.
"Q. Wouldn’t it be fair to say, Detective Hill, that if the blood in the trousers matched the blood of the deceased persons, whoever owned the trousers were [sic] in trouble?
"A. That is true. I didn’t think Mr. Reed owned the trousers.
"The Court: Why didn’t you think he owned the trousers, Mr. Hill?
"Detective Hill: I thought he was a flunky. I thought he was sent there to clean up the place for someone else. I never suspected Mr. Reed.
* * *
"Q. (by Mr. Ziemba): After Mr. Reed replied to you that those were indeed his trousers, you still didn’t suspect Mr. Reed?
"A. No, sir. We never really suspected him.
"Q. Not even when you said if the blood on the trousers is the same as the blood of the two deceased persons that he was in trouble?
"A. That is true.
"Q. You didn’t suspect him?
"A. No, we didn’t. We never truly suspected him.
"Q. When you asked Mr. Reed if those were indeed his trousers, did you have any idea whatever that he might say that they were?
"A. My idea was that Mr. Reed knew what had happened there.
* * *
"Q. The question is specifically, at the time you asked Mr. Reed whether those trousers were his, did you have an idea that he might say they were?
* * #
"Detective Hill: Yes, sir. We did have some idea they might be his trousers.”
Shortly thereafter, the following colloquy ensued:
"The Court: Mr. Hill, if I understood you correctly, you said you thought they could have been his pants?
"Detective Hill: We thought they were his trousers.
"The Court: What was your idea about the whole situation and his being there?
"Detective Hill: The idea about the whole situation was, Your Honor, that Ike Reed — we didn’t believe Ike Reed actually was involved in the killing of these people. But we believed he had helped dispose of the bodies and helped clean up the place. We thought he might have been wearing those trousers when he cleaned up. We never suspected he was the actual killer.
"The Court: And possibly, because he was cleaning up and his pants had gotten blood on them, he put them in the sink?
"Detective Hill: Right.”
The trial court ultimately ruled that defendant’s two statements concerning the trousers had not been obtained in violation of his Miranda rights, and admitted these statements into evidence at trial. Defendant contends that the receipt of these statements constituted prejudicial error.
The admissibility of an accused’s statements is governed by the following rule enunciated in Miranda v Arizona, supra, 384 US 444, as follows:
"[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”
The question presented in this case is similar to that presented in People v Wasson, 31 Mich App 638, 641-642; 188 NW2d 55, 57 (1971), where this Court stated:
"The basic issue thus is whether at the time the statement was made the investigation had become accusatory. If the investigation had reached that stage, the defendant was entitled to be advised of his constitutional rights. [Citations omitted.] The deciding factor, in each case, is determined by examining the specificity of the investigation, i.e., whether the investigation has focused on one suspect.”
Our examination of the record convinces us that at the time of Officer Hill’s question to defendant the status of the police inquiry was investigatory and not accusatorial in nature and defendant’s statements were not made while he was in "custody or otherwise deprived of his freedom of action in any significant way”. Miranda v Arizona, supra, 384 US 444. At the time of the statements, police officers did not believe defendant had perpetrated the killings and had no probable cause to arrest him in connection with these crimes. People v Gilbert, 21 Mich App 442; 175 NW2d 547 (1970), relied upon by defendant, is distinguishable on this basis. Furthermore, defendant’s second statement —in which he changed his story regarding ownership of the trousers — was volunteered after Officer Hill remarked that if the blood on the trousers matched that of the victims, defendant would be in trouble. As the Miranda Court noted (384 US 478): "Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today”.
Under all of the facts and circumstances, the trial judge did not err in admitting the challenged statements into evidence.
Issue III
Did the trial court err by limiting the scope of an evidentiary hearing held to determine whether the prosecution had made promises to a prosecution witness?
Both defendant and John Zellner were originally charged with first-degree murder in the death of Barbara Reed, both underwent a joint preliminary examination, and both were bound over on the charge. A motion for bail made by Zellner’s retained counsel, Robert Mann, was denied at the conclusion of the examination, but later Mann’s motions for severance and for bail on behalf of Zellner were granted. Zellner testified for the prosecution at defendant’s trial.
During the trial, defendant requested and obtained an evidentiary hearing in the absence of the jury to determine whether any promises or representations were made to Zellner by the prosecution in return for Zellner’s testimony against defendant. See Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963). At this hearing Mann stated that he had informed Officer Hill and a representative of the prosecutor’s office, Mr. Connor, that Zellner was willing to testify against defendant, but denied that he [Mann] had received any promises from either Hill or Connor that the case against Zellner would be dismissed if Zellner testified.
Officer Hill denied that he had ever promised Zellner or Mann that the case against Zellner would be dismissed if Zellner testified against defendant. Hill’s police partner, Officer Clemons, denied ever having discussed the subject with Zellner, Mann, Hill, or any other police officer or member of the prosecutor’s staff.
The court questioned the trial prosecutor (not under oath), and he denied that he had made any promises to Zellner either directly or indirectly. Defendant now alleges error in that he was not allowed to cross-examine the trial, prosecutor and was not permitted to call Connor as a witness.
The trial judge did not err by refusing to permit cross-examination after the trial prosecutor, as an officer of the court, denied having made promises to Zellner either directly or indirectly. As for Connor, although he had been in court at the time Zellner’s motion for bail was presented and did not oppose the motion, there is no evidence in the record to suggest that Connor made promises or representations to secure Zellner’s testimony against defendant, and Zellner’s counsel specifically denied having received any such promises from Connor. Under such circumstances, the trial judge’s refusal to permit defendant to call Connor as a witness at the evidentiary hearing did not constitute an abuse of discretion.
Issue IV
Did the trial judge err by admitting into evidence three photographs of the deceased victims?
Prior to admission of three black-and-white photographs showing the victims as they were discov ered, defense counsel argued that because of the testimony by witnesses Long and Zellner the photographs would be merely cumulative on the issue of premeditation and malice, that the gruesomeness of the pictures outweighed their probative value and that, if admitted, they would unduly prejudice the jury against defendant. Of six photographs proposed for introduction by the prosecution, the trial judge ruled three to be admissible.
The issue here presented is controlled by the holding in People v Eddington, 387 Mich 551, 562; 198 NW2d 297, 301 (1972), where the Court stated:
"In a criminal case, the burden is upon the people to prove every element of the crime charged. These are not nice pictures but they are not any more gruesome than some of the testimony by witnesses. The pictures showed the victims as they were found. The pictures depict the corpus delicti. The admission of such evidence is in the sound discretion of the trial judge.”
We have examined the challenged photographs and are not persuaded that the trial judge abused her discretion by admitting them into evidence.
Issue V
Did the trial judge commit reversible error by eliciting hearsay testimony from a witness?
During defense counsel’s cross-examination of Officer Hill, the following ensued:
"Q. Did you make any representations, ever, to Mr. Robert Mann that John Zellner would not be brought to trial in the case of the People vs. John Zellner if John Zellner testified against Ike Reed?
”A. No, sir, I didn’t. I couldn’t do that anyway.
"The Court: May we ask what conversation, if any, specifically you had with Mr. Mann?
"Detective Hill: Yes, you can.
"The Court: What conversation did you have, Mr. Hill?
* * *
"Mr. Ziemba (interposing): I object to this procedure, your Honor.
"The Court: Very well. Would you continue, please, Mr. Hill.
"Detective Hill: This conversation took place in the Homicide Section of the Detroit Police Headquarters. I don’t know the date. But Mr. Mann had been to see his client. And he told me that after talking to his client, he thought that the witness, Charles Long, was lying. And he said he thought that Charles Long attributed to John Zellner at the preliminary examination what he, Charles Long, had done himself. He thought his client was innocent. And he suggested that I go and talk to him. He was of the opinion that his client could convince me of his innocence.”
Defendant maintains that his efforts to impeach prosecution witness Zellner were heavily handicapped because Officer Hill’s hearsay recitation tended to bolster Zellner’s credibility. Defense counsel’s efforts to attack the credibility of Zellner on the basis of prosecution promises made to Zellner apparently had no basis in fact, as is shown under Issue III, supra. While we agree that the trial court erred by eliciting Hill’s recital of Mann’s alleged comments to him, we are persuaded that the error complained of was harmless beyond a reasonable doubt.
Issue VI
Did the trial judge commit prejudicial error by declining to rule upon the admissibility for impeachment purposes of certain inculpatory state- meats made by defendant and suppressed before trial?
Prior to trial, certain inculpatory statements made by defendant were suppressed by court order pursuant to a stipulation between defendant and the prosecution that the statements had been elicited as a result of police promises that defendant would not be prosecuted. The suppression order specifically reserved to the trial judge the right to determine whether the suppressed statements could be utilized for impeachment purposes should defendant elect to testify at trial.
Near the conclusion of the people’s case, defense counsel requested the court to decide whether the statements would be usable for impeachment purposes should defendant decide to testify. The trial judge requested an offer of proof detailing the circumstances under which the suppressed statements were given, and declined to rule anticipatorily when the offer of proof was not furnished. Defendant did not testify at trial, and now contends that the trial court erred by failing to rule that the suppressed evidence could not be used for impeachment purposes.
In Harris v New York, 401 US 222; 91 S Ct 643; 28 L Ed 2d 1 (1971), the United States Supreme Court held that statements obtained in violation of a defendant’s Miranda rights could be utilized to impeach the defendant’s testimony at trial. The Michigan Supreme Court in People v Graham, 386 Mich 452; 192 NW2d 255 (1971), quoted Harris with approval and ruled that evidence that a defendant chose to exercise his Fifth Amendment right to remain silent during interrogation was admissible for the purpose of impeaching his testimony at trial.
Defendant’s contention that the suppressed statements were intrinsically unusable for impeachment purposes therefore is unfounded. Furthermore, since the admissibility of evidence for impeachment purposes ultimately turns upon whether the evidence is inconsistent with a witness’s testimony, the trial court, as a practical matter, could not rule upon the use of any specific statement until that statement could be compared with defendant’s testimony. There was no error.
Issue VII
Did reversible error occur as a result of prosecutorial miscomment during closing argument?
In discussing the trial testimony of prosecution witnesses Long and Zellner, the prosecutor during closing argument stated:
"The routine investigation somehow showed they were involved. And they were brought before you to testify. Now, why would they want to testify before Mr. Reed? Many reasons. And I am sure you will hear of many more of them. Maybe they want to save themselves. This is possible. Maybe they did it themselves and they are getting together. This is possible, also. Maybe one did it. Maybe Mr. Zellner did it and Mr. Long is trying to save Mr. Zellner. This is possible. Maybe Mr. Long did it and Mr. Zellner is trying to save Mr. Long. All of these things are possible. But the reason I think you should give some consideration to is simply they wanted to testify because Ike Reed did it. Ike Reed implicated them in this matter. (Emphasis added.)
Defense counsel immediately objected that the prosecuting attorney’s final statement was not supported by any evidence in the record. The prosecutor withdrew the remark. The trial judge sustained the objection, ordered the remark stricken, and instructed the jury to disregard the statement. As a result of the trial court’s prompt corrective action, the error was cured and defendant was not prejudicially injured thereby.
Issue VIII
Did the trial judge err reversibly by removing from jury consideration the elements of premeditation and deliberation?
In instructing the jury, the trial judge stated:
"I am going to describe for you or define for you briefly what the charge of murder encompasses. The reason I am not going to go into it with you in any more extensive detail is the fact that there has been no dispute about the fact here that the offense charged, that is murder in the first degree, is the offense that was committed. The issue, of course, will be whether the defendant is guilty of committing that offense.
"Now, murder at common law, and as charged in this information, is defined as being where a person or persons of sound memory and discretion wilfully and unlawfully kill any human being against the peace of the State with malice aforethought expressed or implied. Murder of the first degree is a killing done wilfully and with premeditation. And when we talk about premeditation, we mean to consider or plan the act of killing beforehand. And as I have said, I am instructing you both as a matter of fact and as a matter of law in connection with these proceedings, that the killings here are murder in the fírst degree. ” (Emphasis added.)
Defendant objected to this instruction.
The trial court, in a criminal case, may state that the evidence supporting a given fact is undisputed (if such is the case). However, the court should not declare as fact that which the undisputed evidence tends to show. People v Pratt, 251 Mich 243; 231 NW 564 (1930); People v Wojnicz, 12 Mich App 423; 162 NW2d 904 (1968). Standing alone, the challenged instruction would constitute a partial directed verdict of guilty and would be reversible error. People v Pratt, supra; People v DeFore, 64 Mich 693; 31 NW 585 (1887); People v Brian Harris, 37 Mich App 409; 195 NW2d 29 (1971); People v Wojnicz, supra.
Each information charged defendant with first-degree murder. During his opening statement defense counsel declared:
"Members of the jury, you will hear, indeed, as the prosecutor has indicated to you, that on June 7th or June 8th of last year, two people met their death unnaturally, and in what probably can be characterized as a brutal and repulsive manner. You will be asked in this case to decide whether Mr. Reed is guilty of their murder. That will be the question. Not whether or not these people died. Not whether or not these people were murdered. That they met their death unnaturally, I think that will be quite clear. ” (Emphasis added.)
In People v Griffen, 36 Mich App 368, 371; 194 NW2d 104, 105 (1971), which involved a prosecution for second-degree murder, the trial judge in his charge to the jury stated:
"I may say that I don’t believe this jury is going to have much difficulty in arriving at the conclusion that a felonious homicide was committed, and that the homicide was second-degree murder.”
This Court held (p 371; 194 NW2d p 105):
"The comment was improper, and if the fact that a homicide had been committed had been disputed, it would require reversal, People v Wichman, 15 Mich App 110; (1968). However, the fact that a homicide had been committed was not disputed at trial. The contest was over who did it and defendant’s defense was that he did not do it. If the comment was error, it was not reversible error.”
The defense theory in the instant case, consistently followed during the course of the trial, was that defendant was not in the apartment at the time of the homicides. In view of that theory, the fact that each information charged defendant with ñrst-degree murder, and defense counsel’s above-quoted statement, defendant was not prejudiced by the trial court’s instructions which limited the jury’s consideration to a question of identification of the perpetrator of the crime, where the fact that the crime had been committed was not in dispute. See People v Daleo, 43 Mich App 386; 204 NW2d 315 (1972); People v Spaulding, 42 Mich App 492; 202 NW2d 450 (1972); People v Allen, 42 Mich App 195; 201 NW2d 353 (1972); People v Griffen, supra.
We have carefully considered defendant’s remaining allegations of error and find that they do not merit discussion.
Affirmed.
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966).
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J. H. Giixis, J.
Plaintiff appeals the grant of a summary judgment motion in favor of defendant City of Berkley. For purposes of review, all factual allegations of the complaint are considered as true.
On August 25, 1970, a disturbance took place at Memorial Park in Royal Oak, Michigan. Police were ordered to the scene to restore order. Plaintiff, a 17-year-old amateur photographer, had been observing the altercation from a vantage point across the street. Suddenly and without provocation, three police officers assaulted and beat him, causing severe and lasting injuries. The assailants were not attempting to arrest plaintiff. The incident was recorded by newspaper photographers and TV cameramen and later published and broadcast. The officers involved could not be identified.
Plaintiff sued the South Oakland County Mutual Aid Pact, the 18 member cities of the Pact, and 3 unidentified police officers. His complaint sounded in tort for assault and battery, libel and slander, and the negligence of the Mutual Aid Pact and the 18 defendant cities in training police officers. Plaintiff sought compensatory damages and injunctive relief.
Defendant City of Berkley moved for summary judgment, contending MCLA 691.1407; MSA 3.996(107), shields it from liability. Plaintiff appeals, asserting that the statute denies him equal protection of the law. He argues that the statute arbitrarily and unreasonably discriminates by denying relief to victims of public tort-feasors while according relief to victims of private tort-feasors for the same tort. Briefly, he argues that predicating a right to relief on public vis-a-vis private identity of the tort-feasor strains logic. He asserts further that equal protection is denied by according relief to certain victims of public tort-feasors while denying it to others because the Legislature employed no rational scheme to create exceptions.
Courts in other jurisdictions have summarily dismissed similar equal protection claims. Cf. Hall v Powers, 6 Pa Commonwealth 544; 296 A2d 535 (1972); Sullivan v Midlothian Park District, 51 Ill 2d 274; 281 NE2d 659 (1972); Lewis v City and County of San Francisco, 21 Cal App 3d 339; 98 Cal Rptr 407 (1971); Flournoy v State, 230 Cal App 520; 41 Cal Rptr 190 (1964); Hayes v State, 231 Cal App 48; 41 Cal Rptr 502 (1964).
Plaintiff relies on Krause v State, 28 Ohio App 2d 1; 274 NE2d 321 (1971), and cases cited therein. That intermediate appellate court found the Ohio governmental immunity scheme so riddled with exceptions that it created serious inequalities in its operation. Plaintiff’s reliance is misplaced. In addition to a questionable construction and application of the traditional equal protection tests, the decision was finally reversed by the Ohio Supreme Court. Krause v State, 31 Ohio St 2d 132; 285 NE2d 736 (1972), appeal dismissed 409 US 1052; 93 S Ct 557; 34 L Ed 2d 506 (1972).
The "rational basis” test applies when the law allegedly infringing equal protections creates no fundamental rights. The right claimed by plaintiff clearly falls within that class. If a reasonable relation exists between the classification and some legitimate state interest, no denial of equal protection results. Wilkins v Ann Arbor City Clerk, 385 Mich 670; 189 NW2d 423 (1971), citing Naudzius v Lahr, 253 Mich 216; 234 NW 581; 74 ALR 1189 (1931). Withholding legal remedy from persons injured by the state, while granting one to persons injured by nongovernmental tort-feasors does not offend the equal protection clause:
"The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.” Tigner v Texas, 310 US 141, 147; 60 S Ct 879, 882; 84 L Ed 1124 (1940).
"[T]he Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways.” Reed v Reed, 404 US 71, 75; 92 S Ct 251, 253; 30 L Ed 2d 225, 229 (1971), cited in Krause v State, supra, 146; 285 NE2d 744.
Neither of plaintiff’s alleged invidious classifications is sufficient. To deny the state its defense on plaintiff’s reasoning is to "preclude the combined legislative judgment that there may be substantive differences between the two types of conduct”. Krause v State, supra, 146; 285 NE 2d 745. States have the power to enact laws which affect some groups of citizens differently from others if the classification is reasonable:
"Although no precise formula has been developed, the Court has held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.” McGowan v Maryland, 366 US 420; 81 S Ct 1101; 6 L Ed 2d 393 (1961).
One who assails a classification on the grounds that it violates equal protection of law has the burden of showing that the classification has no reasonable basis. Wilkins v Ann Arbor City Clerk, supra. Plaintiff failed to sustain his heavy burden of proof. We think Wood v Jackson County, 463 SW2d 834, 835 (Mo, 1971), aptly stated the rule:
" 'It is a general rule that equal protection of the laws is not denied by a course of procedure which is applied to legal proceedings in which a particular person is affected, if such a course would also be applied to any other person in the state under similar circumstances and conditions. Equal protection of the laws of a state is extended to persons within its jurisdiction, within the meaning of the Fourteenth Amendment to the Federal Constitution, when its courts are open to them on the same condition as to others in like circumstances, with like rules of evidence and modes of procedure, for the security of their persons and property, the prevention and redress of wrongs, and the enforcement of contracts.’ 16 Am Jur 2d, Constitutional Law, § 533, p 923.”
Plaintiff next asserts that PA 1970, No 155 violates Const 1963, art 4, § 24, which requires the title of a statute to accurately express the object of the law. Maki v East Tawas, 385 Mich 151; 188 NW2d 593 (1971), voided PA 1964, No 170, §7, because the title to the act did not indicate the broader and more inclusive immunity expressed in § 7, in contravention of the title-object rule. PA 1970, No 155,'is entitled:
"AN ACT to amend the title and sections 4, 6 and 7 of Act No 170 of the Public Acts of 1964, entitled 'An act to make uniform the liability of municipal corporations, political subdivisions, and the state, its agencies and departments, when engaged in a governmental function, for injuries to property and persons caused by negligence; to define and limit such liability; to define and limit the liability of the state when engaged in a proprietary function; to authorize the purchase of liability insurance to protect against loss arising out of such liability; to provide for defending certain claims made against public oflicers and paying damages sought or awarded against them; and to repeal certain acts and parts of acts,’ being sections 691.1404, 691.1406 and 691.1407 of the Compiled Laws of 1948.”
The amendment sought to remedy the deficiency set forth in Maki v East Tawas, supra, by broadening the title to include all "injuries to property and persons”. Plaintiff argues merely to state "an act to amend the title * * * ” does not suffice because the title’s only indication of the substance of the amendatory act is the prior act’s title which the Supreme Court labeled misleading and incapable of giving fair notice. Maki v East Tawas, supra, He cites precedent for the proposition that:
" * * * the title to an amendatory act is sufficient, and will support any legislation that would have been permissible under the original title when the law was enacted, if the amendatory act refers by chapter or section to the act amended.” Fort Street Union Depot Co v Commissioner of Railroads, 118 Mich 340; 76 NW 497 (1898); see also People v Howard, 73 Mich 10; 40 NW 789 (1888); Common Council of Detroit v Schmid, 128 Mich 379; 87 NW 383; 92 Am St Rep 468 (1901); Maclean v State Board of Control for Vocational Education, 294 Mich 45; 292 NW 662 (1940).
We note at the outset that our examination of the plaintiffs cases reveals no case factually parallel to the instant case, i.e., in each case plaintiff relied on, the Legislature failed to amend the title to the original act in the body of the amendatory act. Such failure to amend the title while introducing amended legislation broader than the title clearly violates the title-object provision. Plaintiff cites Eaton v Walker, 76 Mich 579, 584; 43 NW 638; 6 LRA 102 (1889). In Eaton, the Legislature explained in the title:
"An act to amend section one of an act entitled 'An act for the incorporation of manufacturing companies,’ approved May 1, 1875, being Act No 187 of the Laws of 1875, so as to include mercantile business. ” (Emphasis supplied.)
They proceeded to amend § 1 to include mercantile business, but never amended the title. Thus, the title-object rule was violated because the original unamended title could not support the amended section. Plaintiff also cites A & M Pest Control Service, Inc v LaBurre, 247 La 315; 170 So 2d 855 (1965). In that case, the court considered a Louisiana statute. The Legislature had enacted an amended section but failed to amend the act’s title to support the new provision. The title did not express the object of the act violating the title-object rule.
Where the original title is defective, the Legislature has the inherent power to cure the defect by amending the title. In this case, the Legislature in the amendatory act’s title set out its intent to amend the title and certain sections of 1964 PA 170, providing notice to the public and the Legislature, as the rule intends. They proceeded to act in accord with their expressed purpose in the body of the act. Such a legislative procedure conforms to the constitutional mandate of art 4, §24. While the Court lacks the power to expand or contract legislative titles or provisions, this is precisely the power conferred on the Legislature by the Constitution. We think Justice Wiest expressed the appropriate test in the case of In re Lewis’ Estate, 287 Mich 179, 183; 283 NW 21 (1938), cited in Maclean v State Board of Control for Vocational Education, 294 Mich 45 (1940):
"The title to an enactment is required to be expressive of the purpose and scope of the enactment. If the enactment comes fairly within and is reasonably a component part of the purpose expressed in the title, it is not an interloper but a part thereof and so proper as to be expected therein.”
The title here expressed the purpose and scope of the enactment; to amend the title and certain sections of 1964 PA 170. The enactment was within the purpose and scope expressed in the title. It was proper to expect that the body of the act would reflect the title. Const 1963, art 4, § 24, was not violated.
Affirmed. Costs to appellees.
All concurred.
See Sovereign Immunity, Denial of Equal Protections, 52 B U L Rev, 202, 204 (1972).
The Ohio Appeals Court (8th District) cited Yick Wo v Hopkins, 118 US 356; 6 S Ct 1064; 30 L Ed 220 (1886), and Baker v Carr, 369 US 186; 82 S Ct 691; 7 L Ed 2d 663 (1962), cases which dealt with "suspect classification” and "fundamental rights”. Such situations require the state to prove a compelling state interest in the classification. Instead, the Ohio Court applied a "rational basis” test holding that the statutory distinctions were dependent "upon a gossamer as frail as that supporting those distinctions founded on nationality or race”.
For a suggested approach to the traditional labeling in the equal protections area, see Gunther, In Search of Evolving Doctrine on a Changing Court; A Model for a Newer Equal Protection, Supreme Court 1971 Term, 86 Harv L Rev 1, (1972). | [
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O’Hara, J.
The problem presented by this appeal is to reconcile, if possible, the literal wording of art 10, §2 of the 1963 Michigan Constitution and the statute which furnishes the procedural implementation of the constitutional provision.
It is axiomatic that our duty is to arrive at a constitutional conclusion, if possible.
The involved constitutional provision reads:
"Private property shall not be taken for public use without just compensation therefor being first made or secured in a manner prescribed by law. Compensation shall be determined in proceedings in a court of record.” (Emphasis supplied.)
We supplied the above emphasis because it is to this literal wording appellant addresses his appeal. The visceral issue he raises is what date controls the evaluation to be placed upon the property taken.
It is manifest that if the Constitution were read literally that the state could not "take” property until the whole initial proceeding were completed and the appeal of right concluded, so that the amount determined to be "just” could be "first” made or its payment "secured”. Such an interpretation would grind to a halt the whole integrated state and Federal road building program. It would De totally unworkable for the state. Surely we cannot conclude that the framers of the Constitution intended any such absurd result.
The special condemnation act provides the es sential statutory authority for exercise of the eminent domain power. It seeks to arrive at a result which will be substantially just as between the sovereignty and the affected citizen landowner.
Upon filing of the declaration of taking, the State Highway Commission places on deposit with the State Treasurer or other designated official the amount of estimated just compensation which it in good faith believes constitutes fair recompense for the property sought to be acquired by the state. MCLA 213.369; MSA 8.261(9). One purpose of the deposit is to grant the government immediate possession of the property and to relieve it from the burden of paying interest on funds deposited from the date notice of taking was given until the eventual date of payment. As to the former landowner, the deposit provision sensibly provides immediate compensation to the full extent of the property’s estimated cash value. The payment is merely provisional and is by no means a final settlement of the amount ultimately due. Should the jury award a verdict in excess of the amount deposited, the condemnee recovers the excess with interest. See State Highway Commission v Davis, 38 Mich App 674; 197 NW2d 71 (1972). By virtue of these provisions the statute seeks to balance the legitimate interests of both the state and the property owner.
We conclude that though the property is constructively taken upon the filing of the declaration of taking, it is a reasonable exercise of legislative authority to fix the date of evaluation as the date of filing the declaration or the date of commencement of trial, whichever is earlier. Neither the constitutional convention, the Legislature, nor the courts can control those economic forces which affect the value of property during the progress of proceedings to fix just compensation. Conceivably in one instance a property owner may profit by the time taken to complete the proceedings. Conceivably too he may sometimes be adversely affected. Such a contingency is an inherent hazard of an organized society which must function within the inevitable passage of time.
In this case the pertinent facts appear as follows. The State Highway Commission commenced this action to condemn a parcel of land which was necessary for the development of a section of 1-96 in Oakland County. The defendants answered by filing a motion to compel the highway commission to take their entire parcel of land. In the motion it was alleged that a partial taking would render the defendants’ remaining property landlocked and would leave them with a worthless piece of property. Subsequently, plaintiff highway commission consented to a total take of defendants’ land. Upon trial to a circuit court jury, it was determined that just compensation for all the property was $41,500. A motion for a new trial was presented to the trial court, alleging that the judge had erroneously determined the date on which the involved property should be valued. The motion was denied. This appeal followed.
The first issue pertains to whether the valuation section of the special condemnation act, MCLA 213.389; MSA 8.261(29), which provides that the date of valuation shall be the date of filing the declaration of taking, contravenes the constitu tional requirement of art 10, §2, Constitution of 1963, that just compensation must be "first made or secured in a manner prescribed by law” before private property can be taken.
Defendants contend that they were denied their right to have just compensation first made or secured because the date of valuation precedes the time at which the estimated just compensation is placed on deposit. Practically speaking, they argue the date of deposit of estimated just compensation represents the actual date on which the property was taken. Thus they assert that property taken under the power of eminent domain should be valued as of the date of deposit.
The "taking” provision of the involved condemnation act, MCLA 213.367; MSA 8.261(7), evidences a two-fold purpose. The filing of the declaration of taking by the petitioner declares that certain property is thereby taken and puts the landowner on notice that the state desires his particular property thus inhibiting any future use. Filing of the declaration also establishes the date of valuation for the purpose of securing the right of just compensation to the landowner.
The deposit section of the act, MCLA 213.369; MSA 8.261(9), provides that upon filing of the declaration and depositing of the estimated compensation with a designated public official "title to the property described in the declaration of taking shall vest in [the] petitioner”. However, technical passage of title does not necessarily determine when the taking actually occurred. As stated in 3 Nichols on Eminent Domain (3d ed), § 8.5(1), pp 27-28, in those jurisdictions where the taking is accomplished by administrative order with the damages to be later determined by a court of law, the amount of compensation which the condemnee will receive is ascertained as of the date the declaration is filed. Consequently, we hold that the act of depositing merely vests title in the petitioner as to property which has already been "taken” within the intendment of the involved condemnation act. Hence, there is no conflict between the valuation section of the special condemnation act, MCLA 213.389, supra, and the eminent domain section of the 1963 Michigan Constitution, art 10, § 2.
Now as to the second issue raised on appeal defendants claim that if MCLA 213.389, supra, relating to the date of valuation, is construed to be constitutional then the proper date for the determination of value in this case as to that portion of the property which was subsequently taken is the date of filing the amended declaration of taking. The state did not declare its intention to take all of the property until it filed an amended declaration of taking some time later. Therefore, appellants argue the proper date for determination of value should be the day the amended declaration was filed and not that of the original filing. They claim the trial court erred by providing that the amended declaration should relate back to the date of filing the first petition.
We do not understand how defendants can possibly complain of prejudice with respect to the trial court’s entry of an order amending the original declaration of taking to provide for a complete taking of all the involved property. This is so because defendants asked that it be done. It is a condition precedent to condemning an entire parcel under MCLA 213.365; MSA 8.261(5), that if the proposed condemnation of a portion of land destroys the practical value or utility of the remaining parcel the owner may ask that the whole parcel be taken. As a general rule, property which is by action of the state rendered without any practical use and hence value is considered to be taken. See In re Urban Renewal, Elmwood Park Project, 376 Mich 311, 315, fn 2; 136 NW2d 896, 899 (1965). This situation occurred in this case at the moment the State Highway Commission filed its declaration of taking of the initial parcel. For that reason the property should be valued at the point when "taken”. Such was the situation in this case.
We hold the challenged section of the statute is not constitutionally infirm. We find no reversible error in the proceedings. The judgment entered upon the jury verdict is affirmed. No costs, a public question.
All concurred.
MCLA 213.389; MSA 8.261(29).
See generally 16 Am Jur 2d, Constitutional Law, § 146, pp 350-352: § 175, pp 399-401.
MCLA 213.361 et seq; MSA 8.261(1) et seq.
MCLA 213.389, supra.
MCLA 213.389; MSA 8.261(29) provides in pertinent part:
"The date of valuation in all proceedings pursuant to this act shall be the date of filing the declaration of taking or the date of commencement of trial, whichever is earlier. The value of the property, and of any part thereof remaining after the taking, shall be determined with respect to the condition of the property and the state of the market on that date.”
Since the declaration of taking may be filed at any time before the judgment, MCLA 213.367; MSA 8.261(7), notice to an affected property owner may be by service of a notice of taking and statement of estimated compensation pursuant to MCLA 213.366; MSA 8.261(6).
See United States v 1,060.02 Acres of Land, Etc, 215 F Supp 811 (WD Ark, 1963), and United States v 551.03 Acres of Land, Etc, 249 F Supp 253 (ED 111, 1966), construing a statute similar to Michigan’s own "quick take” statute.
For a discussion with respect to when property is taken under a Federal Act substantially similar to that herein involved, see United States v Dow, 357 US 17; 78 S Ct 1039; 2 L Ed 2d 1109 (1958).
True, there is a provision in that statute, MCLA 213.368; MSA 8.261(8), permitting an aggrieved landowner to file a motion in circuit court claiming abuse of discretion or fraud in the necessity of the taking. This very limited scope of review is such that it cannot reasonably be construed to postpone the time of the taking until after the trial court’s disposition of a motion raising the necessity issue. Most jurisdictions with "quick take” statutes do not provide for any challenge to the necessity. | [
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Per Curiam.
Defendant was found guilty by a jury of escaping from prison. MCLA 750.193; MSA 28.390. He was sentenced to a term of from two to three years imprisonment.
The defendant was initially confined to prison for a term of from three to ten years upon his plea of guilty to a charge of breaking and entering. He was 16 years old at the time. However, the probate court, pursuant to MCLA 712 A.4; MSA 27.3178(598.4), had waived its juvenile jurisdiction over the defendant, and he was tried as an adult in circuit court. After spending a short time at the Southern Michigan Prison at Jackson, the defendant was transferred to Cassidy Lake Technical School, a minimum security prison facility from which he later escaped.
At the trial on the escape charge, defendant testified that his departure from the prison camp was involuntary. He explained that while he was walking on the camp grounds he was confronted by two armed men, he became frightened, ran through some woods to a highway, and hitchhiked to Detroit, where he was arrested approximately eight days later.
On appeal defendant argues that since People v Fields, 388 Mich 66; 199 NW2d 217 (1972), declared the juvenile waiver statute unconstitutional, he was incarcerated illegally and that as such he cannot be prosecuted for the crime of escape from prison. See People v Alexander, 39 Mich App 607; 197 NW2d 831 (1972).
A prisoner is not justified in escaping from prison where he is confined under color of law. The proper method for challenging a conviction is not by escape, but by the procedural avenues provided by statute and court rule. People v Mullreed, 15 Mich App 538; 166 NW2d 820 (1969).
Here jurisdiction over the defendant was waived by the probate court nearly five years before the Fields opinion was released. Likewise defendant’s escape occurred approximately five years before the advent of Fields. Thus the defendant could not have reasonably suspected or believed, as did the defendant in People v Alexander, supra, that his imprisonment was without color of law, nor did the defendant so indicate at trial.
Furthermore, while it is true that Fields held the juvenile waiver statute unconstitutional, nothing in that opinion or subsequent opinions stated that Fields was to be applied retroactively. Moreover, by an order dated September 1, 1972, the Supreme Court has scheduled Fields for a rehearing.
Thus inasmuch as the probate court waived its jurisdiction over the defendant under a statute not as yet declared unconstitutional, and since the defendant has not raised any other allegations of error pertaining to the trial in circuit court, we find that the defendant was incarcerated under color of law and that as a consequence the prosecution for escape was proper.
Affirmed.
MCLA 750.110; MSA 28.305. | [
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Walsh, J.
Plaintiff instituted this action for damages due to an alleged assault and battery committed upon his person on April 28, 1968, at the Highland Park police headquarters by four of defendant’s police officers. Plaintiff alleged in his complaint that as a result of this attack he was bruised and injured in and about his head and genitals. Plaintiff further claimed that he had endured great pain and suffering which had necessitated and would further necessitate medical treatment for alleviation of the injuries and suffering. Plaintiff’s ad damnum clause sought actual damages of $10,000 and exemplary damages of $100,000.
The case was tried before a judge sitting without a jury. Plaintiff and a man who was his companion at the time of plaintiff’s arrest alleged that defendant’s police had beaten plaintiff after he was taken into custody following a high-speed automobile chase. Defendant’s police officers testified that plaintiff was not beaten. The trial court, after making findings of fact, specifically stated that it did not believe the police officers and that plaintiff’s testimony "rang true” and was corroborated in its essentials by the testimony of plaintiff’s companion. The court then awarded actual damages in the amount of $30,000. The court declined, however, to award exemplary damages, reasoning that it would not be beneficial to impose the burden of exemplary damages upon the defendant city for improper conduct on the part of its employees.
Immediately following the court’s decision, plaintiff moved to amend the ad damnum clause to correspond with the court’s award of actual damages. Defendant objected, but the court allowed it.
Subsequently, a hearing was held on defendant’s motion for remittitur to $10,000 or, in the alternative, for a new trial. The motion was denied. Defendant has appealed raising two questions pertaining to the amount of damages.
First, defendant contends that the trial court was without authority to award a greater amount of actual damages than plaintiff requested in his ad damnum clause. As noted supra, plaintiff asked for only $10,000 in actual damages but was awarded $30,000 by the trial court.
The key to resolution of this issue is contained in the language of GCR 1963, 518.3 which provides:
"Demand for Judgment. A judgment by default shall not be different in kind from, or exceed in amount, that prayed for in the demand for judgment. Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.”
The language of GCR 1963, 518.3 is identical to that of FR Civ P, 54(c). The Federal courts have interpreted the rule in such a manner as to countenance an award of damages in excess of those the claimant requested in his pleadings. See for example, Southwestern Investment Co v Cactus Motor Co, 355 F2d 674 (CA 10, 1966); Brown v Burr-Brown Research Corp, 378 F2d 822 (CA 5, 1967).
Also, the authors of 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 632, in commenting upon GCR 1963, 518.3 state:
"In former Michigan practice it was said a judgment could not exceed the amount requested in the ad damnum clause, although in practice the problem might have been side stepped [sic] by permitting an amendment to conform the pleadings to the proofs. * * * The new rule makes it clear that except upon default judgment, the court has power to enter judgment in an amount greater than that demanded, if proved.”
At first blush, the case of Phillips v Rolston, 376 Mich 264; 137 NW2d 158 (1965), might appear to mandate a holding to the effect that an award of damages cannot exceed the amount prayed for by a party in his complaint. In Phillips the question was whether the ad damnum clause could be amended in order to conform with the jury’s award of damages. The trial court had allowed the amendment but had also granted defendant’s motion for a new trial unless the plaintiff would agree to remit the amount by which the jury award exceeded the amount asked for in the original ad damnum clause. The plaintiff consented to the remittitur but the defendants appealed nonetheless. The Supreme Court concluded that the amendment of the ad damnum proofs were sufficient to support the amount after remittitur and so the case was affirmed. The Court spoke at length on the proposition of amending the ad damnum clause after verdict and disapproved such an amendment, stating:
"To allow the amendment of an ad damnum to conform with a jury’s verdict in an amount in excess of the amount claimed would prejudicially and adversely affect the substantial right of the party against whom the award was made to defend against the award to the extent it was in excess of the ad damnum.
"While it may be true that the ad damnum not infrequently is grossly exaggerated, nonetheless it serves to limit the amount of the defendant’s maximum potential liability. Such limitation, as gross as it sometimes is, may well be pertinent to the trial strategy adopted by a defendant. For example, a defendant might be willing to concede liability provided damages to be awarded by the jury are limited to a specified amount. The ad damnum serves this function, at the very least. Conceivably, a defense counsel engaged by an insurance company to represent its insured might be willing to concede liability within the policy limits but not beyond. If the ad damnum is within those limits, and if it effectively limits the defendant’s potential liability by jury verdict, such concession of liability might well be made whereas no skilled attorney would so much as consider such a concession if the extent of liability were in practical fact not limited by the ad damnum” 376 Mich 264, at 268-269; 137 NW2d 158, at 160.
For some reason unbeknownst to us, the Court did not make any reference whatsoever to GCR 1963, 518.3. It is precisely rule 518.3 which persuades us that an award in excess of the damages prayed for in an ad damnum clause may be sustained. While we will not speculate as to the possible reasons why the Supreme Court did not allude to GCR 1963, 518.3, we do conclude that the existence of this rule justifies our distinguishing the case of Phillips v Rolston, supra, from the instant one.
We are persuaded by the thoughtful analysis of GCR 1963, 518.3 by Judge R. B. Burns in Piatkowski v Mok, 29 Mich App 426; 185 NW2d 413 (1971). There it was stated:
"The language of 518.3, in no uncertain terms, states that a judgment must be based on what is proved rather than on what is pleaded. To base a judgment solely on what is pleaded totally ignores the word 'entitled’ and the phrase 'even if contained in GCR 1963, 518.3. The plain meaning of a general court rule should not be ignored by this Court.
"We hold the plaintiff may recover a judgment in the amount of his provable damages irrespective of the ad damnum clause.” 29 Mich App 426, at 428; 185 NW2d 413, at 415.
We therefore hold that the trial court did have authority to award a greater amount of actual damages than plaintiff had requested in his ad damnum clause.
Defendant next contends that the money judgment rendered by the trial court was excessive in that it was not supported by the evidence. We disagree.
Plaintiff testified that after he was taken into custody and handcuffed, three of defendant’s police officers walked him to the police car, threw him against it, and kicked him in the groin, head, .and back. He stated that the policemen then took him to the police station where he was beaten again. This beating allegedly entailed the grabbing of plaintiff’s hair, bouncing his head against a wall, and kicks directed at his scrotum. This second beating lasted, according to plaintiff, for some 10 to 15 minutes.
Plaintiff testified that after these beatings he felt ill, could barely walk, and had severe pain in his head and scrotum. He remained incarcerated for one day. When he was released, he went to a physician due to the fact that he felt dizzy and had difficulty in walking.
Plaintiff further testified to the effect that he subsequently developed a hearing problem in his left ear. He stated that he went to an ear specialist who allegedly informed him that the problem had been caused by a blow to the head. This ear specialist allegedly drained some water from plaintiff’s ear. Plaintiff contended that ever since then he hasn’t been able to hear well.
Plaintiff stated that he paid the two aforementioned physicians about $50 each for their respective services. No expert medical testimony was ever produced however. Nor were any medical bills produced. At the time plaintiff testified, nearly three years after the beatings, he contended that he still had extreme difficulty in hearing. He stated that he had trouble walking for six months after the beatings and had large bruises which also lasted for about six months. Finally, plaintiff claimed that he lost his job at General Motors, where he had worked for three years, because of this incident.
The depositional testimony of one Michael J. McKeown, a companion of plaintiff at the time of the arrest, served largely to corroborate the fact that plaintiff had been beaten by defendant’s police officers.
The trial judge awarded plaintiff $30,000 in actual damages. The trial judge’s award included pain and suffering, medical expenses, humiliation and affront to sensibilities, psychological and mental anguish, and impairment to hearing in one ear. The court noted that there was no expert medical testimony, but also observed that plaintiffs testimony regarding his loss of hearing was unchallenged, undisputed, and unobjected to at trial.
In Watrous v Conor, 266 Mich 397, 401-402; 254 NW 143, 144-145 (1934), the Michigan Supreme Court stated:
"There is and can be no absolute standard by which we can measure the amount of damages in personal injury cases. Individual opinions may differ as to the correctness of awards, even those made by trial judges. It has yet to be determined whether the judgment of a one-man jury is sounder than that of 12. The parties seemed to prefer the judgment of one and waived a jury. Now appellant suggests that the judgment of eight is better than either method. Adopting defendant’s contention that, at best, the showing here is only one of pain and suffering; plus expenses for medical services and hospitalization attention, we still prefer our rule stated in the case of Weil v Longyear, 263 Mich 22 [248 NW 536 (1933)], that the amount allowed for pain and suffering must rest in the sound judgment of the trier of the facts. Assuming even that our verdict might be in a different amount, we are loath to disturb verdicts for personal injuries on the ground that the amount is excessive. Cawood v Earl Paige & Co, 239 Mich 485 [214 NW 402 (1927)]. We do not substitute our judgment on this question unless a verdict has been secured by improper methods, prejudice or sympathy. Michaels v Smith, 240 Mich 671 [216 NW 413 (1927)]. No such showing has been made, nor were the verdicts so great as to shock the judicial conscience. Sebring v Mawby, 251 Mich 628 [232 NW 194 (1930)].”
So too, in the instant case, we will not substitute our judgment for that of the trial court.
Affirmed.
All concurred. | [
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] |
R. B. Burns, J.
Appellants, three Detroit police officers, were disciplined, after hearings before separate departmental trial boards, for various violations of the rules and regulations of the Detroit Police Department. Each officer sought review of the disciplinary action taken against him by filing in the Wayne County Circuit Court a complaint for an order of superintending control directed against appellees. In each case the circuit court refused to issue the order, thus affirming the trial boards. This Court granted each appellant’s application for leave to appeal and, on its own motion, ordered the cases consolidated.
The facts will be detailed as pertinent to our discussion of the several claims of error advanced by appellants.
I THE CHARGES AGAINST APPELLANTS
Sergeant Gerald R. Sponick was found guilty of all four charges of misconduct levied against him. Specification I: knowingly submitting a false daily log for his activities while on duty on November 17, 1970, in violation of Detroit Police Manual, ch 3, § 34(21). Specification II: conduct unbecoming an officer in that he did "knowingly and intentionally have contact on November 17, 1970, November 20, 1970, and December 4, 1970, with a convicted criminal”, in violation of Detroit Police Manual, ch 3, § 34(8). Specification III: "knowingly and intentionally associating] with a convicted criminal” on March 12, 1971, and April 30, 1971, in violation of Detroit Police Manual, ch 3, § 34(41). Specification IV: neglect of duty in that he failed to timely report "knowingly and intentionally having had] contact on March 12, 1971, and April 30, 1971, with a convicted criminal”, in violation of Detroit Police Manual, ch 4, § 73, and ch 3, § 34(10). The involved provisions of the Detroit Police Manual are reproduced in the margin.*
Two charges of misconduct were levied against Sergeant Cyril Rickard. Specification I: knowingly submitting false daily logs for his activities while on duty on February 5, 1971, March 4, 1971, and April 2, 1971, in violation of Detroit Police Manual, ch 3, § 34(21). Specification II: failing to timely report "knowingly and intentionally hav[ing had] contact on February 5, 1971, March 4, 1971, and April 2, 1971”, with a convicted criminal, in violation of Detroit Police Manual, ch 4, § 73, and ch 3, § 34(10). Sergeant Rickard was found guilty of Specification I, but not guilty of Specification II.
Two charges of misconduct were also filed against Sergeant Roy A. Daugherty. Specification I: neglect of duty in that he failed to timely report "knowingly and intentionally hav[ing had] contact on February 17, 1971, with a convicted criminal”, in violation of the Detroit Police Manual, ch 4, § 73, and ch 3, § 34(10). Specification II: conduct unbecoming an officer in that he "did, while on duty on May 20, 1970, knowingly and intentionally have contact with a convicted criminal”, in violation of the Detroit Police Manual, ch 3, § 34(8). Sergeant Daugherty was found guilty of both specifications.
Sergeant Sponick claims that the charges against him are premised on unconstitutional rules and regulations.
A. Conduct Unbecoming An Officer
It is our opinion that the regulation proscribing "conduct unbecoming an officer” is too vague to be valid. We base our holding on the cases of Avrech v Secretary of the Navy, 155 US App DC 352; 477 F2d 1237 (1973); and Hamtramck Civil Service Commission v Pitlock, 44 Mich App 410; 205 NW2d 293 (1973).
In Avrech v Secretary of the Navy, supra, at 355, 356; 477 F2d at 1241, the Circuit Court of Appeals for the District of Columbia, in an opinion authored by Mr. Justice Clark, struck down Article 134 of the Uniform Code of Military Justice, 10 USCA 934, which article imposes criminal sanctions on "all disorders and neglects [not specifically mentioned in this chapter] to the prejudice of good order and discipline in the armed forces” and "all conduct of a nature to bring discredit upon the armed forces”. Article 134 was struck down because it "gives no fair warning of the conduct it proscribes and fails to provide any ascertainable standard of guilt to circumscribe the discretion of the enforcing authorities”. The analysis applied to Article 134 is equally applicable to that regulation of the Detroit Police Department which proscribes all conduct "not specifically mentioned in the rules and regulations which tends to bring the department into disrepute or reflects discredit upon the individual as an officer”. See also Levy v Parker, 478 F2d 772 (CA 3, 1973).
In Hamtramck Civil Service Commission v Pitlock, supra, 413-414; 205 NW2d at 294-295, a panel of this Court, in an opinion authored by Judge, now Justice, Levin, ordered one Robert Pitlock reinstated to his position with the City of Hamtramck. Pitlock had been discharged because his act of driving a city truck at a time when his driver’s license had been suspended was deemed "conduct unbecoming an officer or employee of the city”, in violation of Rule XII, § 5 of the Hamtramck Civil Service Rules and Regulations. It was held by this Court that a "rule proscribing 'conduct unbecoming an officer or employee of the city’ presents a standard or guide so impalpable as to be no standard at all” and, as such, is not in compliance with that provision of the Hamtramck City Charter authorizing the civil service commission to "adopt and amend rules and regulations”. Detroit Police Manual, ch 3, § 34(8), is no more certain a standard and, therefore, is not a valid exercise of the Police Commissioner’s authority to "make all proper rules for the government and discipline” of the department. Detroit Charter, Title 4, ch 21, § 5(a).
Accordingly, we hold that Specification II against Sergeant Sponick and Specification II against Sergeant Daugherty must be, and are hereby, dismissed.
A contrary holding is not required by those decisions of our Supreme Court affirming the discharge of a police officer because of conduct unbecoming an officer. See Purdie v Detroit Police Department Trial Board, 318 Mich 430; 28 NW2d 283 (1947), and Aller v Detroit Police Department Trial Board, 309 Mich 382; 15 NW2d 676 (1944). In neither of those cases was there a challenge to the propriety of the regulation which prohibited conduct unbecoming an officer. Therefore, the decisions of the Supreme Court should not be read as upholding the regulation.
B. Associating With Criminals
1.
It is further claimed by Sergeant Sponick that the regulation which prohibits associating with convicted or suspected criminals is also unconstitutionally vague. He cites DeGrazio v Chicago Civil Service Commission, 31 Ill 2d 482; 202 NE2d 522 (1964). We disagree.
Detroit Police Manual, ch 3, § 34(41), does not have the defects of uncertainty found in Rule 309 of the Chicago Police Department. The Detroit rule proscribes knowing and intentional association, except in the line of duty, with persons convicted, charged, or suspected of any crime other than traffic offenses and municipal ordinance violations. Thus, it can be readily ascertained from the face of the regulation that arrest and conviction records are included within the meaning of the regulation, that all felonies and many misdemeanors are also included, and that a single arrest or conviction constitutes a "criminal record”. Since only knowing and intentional associations are proscribed, it is readily apparent that the individual officer must know that the individual has been convicted of, is charged with, or is suspected of, some crime. Because the regulation is so all-inclusive, we think it fairly within the apparent meaning of the regulation that no time limit be placed on prior criminal activity. Finally, the word "associate” is not an obscure term. It means more than "incidental contacts” between police officers and known criminals. Cf. Arciniega v Freeman, 404 US 4; 92 S Ct 22; 30 L Ed 2d 126 (1971). To "associate” with a known criminal means to join with him for a particular purpose as "a partner, fellow worker, colleague, friend, companion or ally”. DiMarco v Greene, 385 F2d 556, 561 (CA 6, 1967); and Weir v United States, 92 F2d 634 (CA 7, 1937), cert den 302 US 761; 58 S Ct 368; 82 L Ed 590 (1937), reh den 302 US 781; 58 S Ct 479; 82 L Ed 603 (1938).
Therefore, it is our opinion that Detroit Police Manual, ch 3, § 34(41) gives police officers "fair warning” of that conduct which it proscribes. See Section I-A of this opinion.
2.
However, statutes and administrative regulations which are precise and which do accomplish some legitimate governmental end are, nonetheless, unconstitutional if they "broadly stifle fundamental personal liberties when the end can be more narrowly achieved”. Shelton v Tucker, 364 US 479, 488; 81 S Ct 247, 252; 5 L Ed 2d 231, 237 (1960); United States v Robel, 389 US 258; 88 S Ct 419; 19 L Ed 2d 508 (1967); Schneider v Smith, 390 US 17; 88 S Ct 682; 19 L Ed 2d 799 (1968); and Grayned v City of Rockford, 408 US 104; 92 S Ct 2294; 33 L Ed 2d 222 (1972). Sergeant Sponick claims that such is the defect of Detroit Police Manual, ch 3, § 34(41), that the regulation is "over-broad”.
No one questions the authority of the Detroit Police Department to regulate the conduct, both on and off duty, of its officers in an effort to preserve the integrity of the department and of its individual officers and the public’s confidence in the department. Nor does any one question the propriety of restraining police officers’ associations with known or reputed criminals. Some such associations may expose an officer to irresistible temptations to yield in his obligation to impartially enforce the law, and some such associations may give the appearance that the community’s police officers are not themselves honest and impartial enforcers of the law. Respect for law cannot long exist when the governed believe that the government is not obeying its own laws. Olmstead v United States, 277 US 438, 485; 48 S Ct 564, 575; 72 L Ed 944, 960 (1928) (dissenting opinion per Brandéis, J.). What is questioned is the propriety of banning all knowing associations by police officers, except when in the line of duty, with anyone ever arrested, convicted, or suspected, however long ago, of any crime other than a traffic offense or a municipal ordinance violation.
Freedom of association is closely allied to freedom of speech and, as such, lies at the foundation of a free society and is protected by the First and Fourteenth Amendments to the Constitution of the United States. NAACP v Alabama, 357 US 449; 78 S Ct 1163; 2 L Ed 2d 1488 (1958); Shelton v Tucker, supra, 485; 81 S Ct at 251; 5 L Ed 2d at 236; Schneider v Smith, supra; and United States v Robel, supra. That freedom may not be denied to an individual or unreasonably limited merely because he has chosen public employment as a police officer. Rather, that freedom may be circumscribed only as reasonably and narrowly related to the effective performance of a police officer’s duties. Pickering v Board of Education, 391 US 563, 568; 88 S Ct 1731, 1734-1735; 20 L Ed 2d 811, 817 (1968); Perry v Sindermann, 408 US 593, 597; 92 S Ct 2694, 2697-2698; 33 L Ed 2d 570, 577 (1972), and cases cited therein.
It is our conclusion that some of the associations proscribed by Detroit Police Manual, ch 3, § 34(41) have no possible bearing on the integrity of a police officer and that of his department and no possible bearing on the public’s confidence in the police. The regulation does not proscribe only association with individuals recently convicted or currently suspected of some crime. The regulation prohibits a police officer from associating with a neighbor, fellow church members, etc., arrested once decades ago. The regulation also prohibits a police officer from befriending a recently convicted individual and helping him become a productive citizen. Such associations cannot possibly impugn a police officer’s integrity. Since the regulation thus unnecessarily restricts police officers’ fundamental right to associate freely, that regulation is constitutionally infirm.
Undoubtedly, the Detroit Police Department has no intention of enforcing the letter of the regulation to the instances mentioned above. However, that observation only highlights the defective nature of the regulation. Both of the associations mentioned above, and numerous other obviously innocent associations, are clear violations of the regulation. Therefore, if the regulation is upheld by this Court, any police officer may be disciplined at the whim of a superior for conduct generally ignored and sometimes encouraged by the department. Such unrestricted discretion in a government agent is to be feared and is prohibited by our Constitution. Coates v Cincinnati, 402 US 611; 91 S Ct 1686; 29 L Ed 2d 214 (1971); Papachristou v Jacksonville, 405 US 156; 92 S Ct 839; 31 L Ed 2d 110 (1972).
"Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute [or regulation] may constitutionally be applied will not be heard to challenge that statute [or regulation] on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.” Broadrick v Oklahoma, 413 US 601, 610; 93 S Ct 2908, 2915; 37 L Ed 2d 830, 839 (1973). Were that principle without exception, Sergeant Sponick could not now challenge Detroit Police Manual, ch 3, § 34(41), for the regulation is constitutional as applied to his alleged misconduct: knowingly associating for purposes other than rehabilitation or the like with a recently convicted felon and a man currently suspected of extensive criminal activities. However, because the First Amendment needs "breathing space”, the traditional rules of standing have been loosened to permit — in the First Amendment area — " 'attacks on overly broad statutes [and regulations] with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite specificity’ ”, Dombrowski v Pfister, 380 US 479, 486; 85 S Ct 1116, 1121; 14 L Ed 2d 22, 28 (1965), and cases cited therein, provided that the over-breadth is "not only * * * real, but substantial as well, judged in relation to the statute’s [or regulation’s] plainly legitimate sweep”. Broadrick v Oklahoma, supra, 413 US at 612, 615; 93 S Ct at 2916, 2918; 37 L Ed 2d at 840, 842. It is our conclusion that the overbreadth of the challenged regulation is very real and very substantial. In addition to legitimate restraints on a police officer’s freedom of association, the regulation prohibits innocent associations with neighbors and even family members, and restrains innocent activities in church groups, fraternal organizations, civic groups, and the like. At the very least, police officers may be deterred from making associations by fear of discovering that their associates are within the proscribed class. This is not a case where the over-breadth is theoretical or limited to a handful of highly unusual and unlikely circumstances. Therefore, it is our opinion that Sergeant Sponick has standing to challenge the overbreadth of Detroit Police Manual, ch 3, § 34(41). As we have already noted, the challenged regulation is unconstitutionally broad. Accordingly, we hold that Specification III against Sergeant Sponick is premised upon an unconstitutional regulation and must be, and is hereby, dismissed.
C. Failure To Report Contacts
1.
Finally, Sergeant Sponick alleges that Detroit Police Manual, ch 4, § 73, is unconstitutionally vague. We disagree.
Chapter 4, § 73, requires every police officer to file a written report within 24 hours of all deliberate "contacts” with persons he knows to be convicted, charged, or suspected of any crime other than minor misdemeanors, and all deliberate visits to places frequented or suspected of being frequented by such persons.
A deliberate contact is any deliberate encounter for whatever purpose, e.g., an investigatory interview, an effort to obtain an individual’s assistance as an informant, paying one’s dues to the treasurer of a fraternal organization, or accompanying one’s children to a Christmas party. "Contacts” do not involve the personal relationship inherent in "associations”.
Except for the distinction between deliberate contact and deliberate association, Chapter 4, § 73, parallels Chapter 3, § 34(41). Therefore, for the reasons expressed in Section I-B(l) of this opinion it is our holding that Chapter 4, § 73, fairly informs all Detroit police officers what they must report to their superiors and when.
2.
However, a regulation that requires a police officer, under threat of departmental discipline, to report in writing to his superiors certain personal associations is no less obvious a restraint on that officer’s personal freedom of association than is a regulation completely prohibiting those same associations. A police officer might choose to curtail his innocent involvements with others rather than publicize those involvements or rather than take the time to record all such involvements. Cf. Shelton v Tucker, supra. Therefore, since Detroit Po lice Manual, ch 4, § 73, is a restraint on police officers’ freedom of association, it is constitutional only if reasonably and narrowly related to the accomplishment of some legitimate governmental objective.
The Detroit Police Commissioner defends the challenged regulation as a mechanism for gathering criminal intelligence. We do not question the legitimacy of the Commissioner’s objective, nor his authority to accomplish that objective by requiring Detroit police officers to record some of their personal encounters, social as well as professional. However, because the reach of Detroit Police Manual, ch 4, § 73, is even greater than the reach of ch 3, § 34(41), i.e., the former deals with encounters less than "associations”, we declare that Detroit Police Manual, ch 3, § 73, is unconstitutional as presently written. See Section I-B(2) of this opinion. We are aware that a recording requirement is somewhat less of a restraint on the freedom of association than is an outright prohibition. Nonetheless, we decide as we do because Detroit Police Manual, ch 4, § 73, is considerably broader than ch 3, § 34(41), and, therefore, on balance, the constitutional infirmity of the former is comparable to that of the latter.
Since the overbreadth discussed in Section I-B(2) of this opinion is real and substantial, the over-breadth at issue in this section is even more real and substantial. Accordingly, appellants may challenge the constitutionality of Detroit Police Man ual, ch 4, § 73, although as to them the regulation is constitutional. Broadrick v Oklahoma, supra.
II APPELLANTS’ TRIAL BOARDS
A.
The Detroit Charter provides that police department trial boards "shall” consist of the Police Commissioner or a deputy commissioner, the chief of detectives or an assistant appointed by him, and the chief inspector of the department. Detroit Charter, Title 4, ch 21, § 16. Because, at the time of the proceedings against appellants, there was no chief inspector in the Detroit Police Department, there obviously was no chief inspector on any of appellants’ trial boards. In the cases of Sergeants Sponick and Daugherty the Police Commissioner appointed a district inspector to sit in place of the chief inspector. In Sergeant Rickard’s case the commissioner appointed the Director of Administrative Services to sit in place of the chief inspector. Sergeant Sponick claims that the absence of the chief inspector deprived the respective trial boards of authority to adjudicate appellants’ guilt and to discipline them. Once again, we disagree.
That same Title of the Detroit City Charter which prescribes the membership of departmental trial boards authorizes the Police Commissioner to "change the titles of police officers and employees under him, except deputies”, to designate such new titles as he sees fit, and to create "whatever offices and positions” he deems "necessary for the proper organization and conduct of the department”. Detroit Charter, Title 4, ch 21, § 5(d). The commissioner also has "such other powers as * * * may be necessary * * * for the proper discharge of his duties”. Detroit Charter, Title 4, ch 21, § 5(m). One of his duties is the maintenance of discipline. Detroit Charter, Title 4, ch 21, § 5(a). We read these subsections of the Charter to authorize the commissioner to either abolish the office of chief inspector lor to reasonably compensate for a vacancy in that office.
B.
It is further claimed that a trial board composed exclusively of police officers cannot impartially judge charges of misconduct prosecuted against a fellow officer by the department.
The United States Supreme Court has held that administrative hearings need not be conducted by a judicial officer or even by the traditional "neutral magistrate”. Due process is satisfied if the hearing is conducted by someone who did not participate in the decisión under review. Morrissey v Brewer, 408 US 471, 486; 92 S Ct 2593, 2603; 33 L Ed 2d 484, 497 (1972); Goldberg v Kelly 397 US 254; 90 S Ct 1011; 25 L Ed 2d 287 (1970). There is nothing in any of the three records before us to indicate that any of the members of appellants’ trial boards participated in any way whatsoever in the investigation which led to the filing of charges against appellants or in the decision to file said charges. Therefore, the fact that appellants’ trial boards were composed exclusively of police officers did not deny them due process.
Sergeant Sponick claims that allowing a police officer to sit in judgment of a fellow officer is a violation of the common-law principle that "no man shall be judge in his own cause”. See Peninsular R Co v Howard, 20 Mich 18, 25 (1870); and Milk Marketing Board v Johnson, 295 Mich 644, 660; 295 NW 346, 353 (1940). Both cases are inapposite. In neither case did the Supreme Court hold that one member of a profession may not judge another member of that profession. Neither has any subsequent case cited either the Johnson or Howard decision in support of such a holding. On the contrary, in People v Murphy, 364 Mich 363, 367; 110 NW2d 805, 807 (1961), our Supreme Court indicated approval of examining boards composed of members of the very profession being regulated. Rather, in Johnson and Howard the Court prohibited individuals from sitting in judgment of causes in which they had a "direct pecuniary interest”. In Johnson the Court refused to permit milk producers and distributers to fix wholesale and retail milk prices. In Howard the Court refused to allow shareholders in a railroad to sit as jurors to decide a case involving the taking of private property by that railroad. There is no allegation in the instant cases that any of the members of appellants’ trial boards had any financial interest in the outcome of the cases against appellants.
C.
Failing in his first two claims of error as to the composition of his trial board, Sergeant Sponick contends that the general atmosphere within the Detroit Police Department was so charged against those implicated in the "Anchor Bar Case” that it was impossible to impanel an impartial trial board to judge him. He also claims that his trial board was, in fact, biased against him.
Due process has been denied when it can be objectively concluded that an impartial jury was an impossibility because of extensive news media exposure or strong community feeling of prejudgment. The burden of proving such conditions is on the challenger. Sheppard v Maxwell, 384 US 333; 86 S Ct 1507; 16 L Ed 2d 600 (1966); People v Pearson, 13 Mich App 371, 380; 164 NW2d 568, 573 (1968). Analogously, due process has been denied when an impartial trial board is impossible because of pretrial publicity or strong community feeling and when the challenger can prove the existence -of such conditions. Sergeant Sponick has offered no evidence to the trial board, to the circuit court, or to this Court in support of his claim of prejudgment. Therefore, we must reject that claim.
The Sergeant bases his claim of actual bias on a half dozen sentences extracted from over 400 pages of testimony. We have carefully read the entire transcript and find no indication whatsoever that the trial board was biased against Sergeant Sponick. What he claims are examples of bias appear to us to be slips of the tongue and mild expressions of skepticism at explanations offered by him. That the trial board chose not to believe Sergeant Sponick does not mean that it was biased.
Although Sergeant Rickard does not claim that his trial board was biased, we have read the entire transcript of his case and conclude that no bias whatsoever was demonstrated.
Ill PREFACE TO ADMINISTRATIVE LA W
A departmental trial board hearing is not a trial and, therefore, need not comply with all the rules of evidence and procedure applicable to a trial. However, because a trial board hearing affects an "important interest”, i.e., the officer’s employment future, the hearing must comply with "rudimentary due process”. Cf. Slochower v New York City Board of Higher Education, 350 US 551; 76 S Ct 637; 100 L Ed 692 (1956). See also Greene v McElroy, 360 US 474; 79 S Ct 1400; 3 L Ed 2d 1377 (1959); Sniadach v Family Finance Corp of Bay View, 395 US 337; 89 S Ct 1820: 23 L Ed 2d 349 (1969) ; Bell v Burson, 402 US 535; 91 S Ct 1586; 29 L Ed 2d 90 (1971); Wisconsin v Constantineau, 400 US 433; 91 S Ct 507; 27 L Ed 2d 515 (1971); Fuentes v Shevin, 407 US 67; 92 S Ct 1983; 32 L Ed 2d 556 (1972).
"Rudimentary due process” demands: (i) timely written notice detailing the reasons for proposed administrative action; (ii) an effective opportunity to defend by confronting any adverse witnesses and by being allowed to present in person witnesses, evidence, and arguments; (iii) a hearing examiner other than the individual who made the decision or determination under review; and (iv) a written, although relatively informal, statement of findings. Goldberg v Kelly, supra; Wheeler v Montgomery, 397 US 280; 90 S Ct 1026; 25 L Ed 2d 307 (1970) ; Morrissey v Brewer, supra; and Gagnon v Scarpelli, 411 US 778, 786; 93 S Ct 1756, 1761-1762; 36 L Ed 2d 656, 664 (1973). See also Dation v Ford Motor Co, 314 Mich 152, 163; 22 NW2d 252, 256 (1946); Napuche v Liquor Control Commission, 336 Mich 398, 403; 58 NW2d 118, 120-121 (1953).
The remainder of this opinion will be concerned with the application of "rudimentary due process” to the proceedings under review herein.
IV EVIDENCE ADMITTED
A.
Over the objection of corporation counsel, who acted as prosecutor in these cases, the trial boards received into evidence reports of the results of polygraph examinations to which each appellant submitted. The examinations were conducted by technicians selected by appellants. Each report concluded that appellants’ denials of any wrongdoing were truthful. Because no reports were submit ted to contradict the reports submitted by appellants and because the examiners’ credentials and techniques were not challenged, it is claimed that the trial boards acted arbitrarily and capriciously when they obviously disregarded those reports by finding appellants guilty.
In this jurisdiction at present the results of polygraph examinations are not admissible at trial, either civil or criminal. People v Frechette, 380 Mich 64, 68; 155 NW2d 830, 832 (1968), and Stone v Earp, 331 Mich 606; 50 NW2d 172 (1951). Our Supreme Court has never been asked to decide whether the results of polygraph examinations may be admitted into evidence at administrative hearings, and it is not necessary for us to now decide the question. Even if properly admitted, polygraph results need not be accepted even when uncontradicted by another polygraph expert. We base our decision on People v Cole, 382 Mich 695; 172 NW2d 354 (1969).
The results of a polygraph examination are, in reality, the examiner’s expert opinion as to the veracity of the individual examined by him. United States v Ridling, 350 F Supp 90, 93 (ED Mich, 1972). It cannot be seriously claimed that nonexperts are incompetent to judge veracity or credibility. Our jury system is grounded on the principle that all unbiased adults are competent to judge credibility. Therefore, the members of appellants’ trial boards, although not polygraph experts, were competent, having heard all the testimony and seen appellants testify, to interpose their own conclusions of appellants’ credibility against the opinions of the polygraph experts who testified for appellants. Accordingly, applying the underlying principle of People v Cole, supra, it is our conclusion that appellants’ trial boards did not act arbi trarily and capriciously when they chose not to accept as conclusive the results of polygraph examinations to which appellants submitted.
B.
The cases against appellants resulted from extensive surveillance (152 days) of two bars in the City of Detroit, the Anchor Bar and Leiter’s Lounge. The surveillance, which was directed against suspected gambling activities, was conducted both in the bars and from various vantage points outside the bars by officers of the Detroit Police Department and agents of the Federal Bureau of Investigation. The surveillance was not directed against appellants. However, when the officers and agents on surveillance duty compared their notes, they became aware that several Detroit police officers, including appellants, were frequent visitors to both bars and appeared to be friendly with the primary object of the surveillance, one Charles Sherman, a man convicted of several felonies and suspected of extensive gambling activities. This information was relayed to appellants’ superiors and, after additional internal investigations, resulted in the filing of charges of misconduct.
While on surveillance duty the officers made fragmentary notes of their observations. Subsequently, detailed reports were prepared using the fragmentary notes, and then the notes were destroyed. At appellants’ trial board hearings the police officers and FBI agents who conducted the surveillance testified against appellants, admittedly basing their testimony on the reports prepared by them from their fragmentary notes. Some of these witnesses candidly admitted having no independent recollection of either the incidents or the dates detailed in their reports. Others claimed to have independent recollections of the incidents, but not of the dates, detailed in their reports. None of the witnesses had independent recollections of both incidents and dates. It is obvious from the specifications against appellants that the establishment of particular dates is essential to the cases against them. See Section I of this opinion. Appellants’ counsel objected to all testimony based on written reports when the witness had no independent recollection of the subject of his testimony, and could not produce his fragmentary notes, citing People v Rosborough, 387 Mich 183; 195 NW2d 255 (1972). Appellants renew here their objections based on Rosborough. Corporation counsel claims now, as he claimed successfully at the trial board hearings, that Rosborough is inapplicable to the instant cases because they are administrative proceedings.
It is our opinion that the Rosborough decision is applicable to administrative proceedings in general, but is not applicable to the particular proceedings under review herein.
In People v Rosborough, supra, 194-195; 195 NW2d at 261, our Supreme Court held that a surveillance report prepared from fragmentary notes may be admitted into evidence only if the officer who prepared the report cannot testify from his present recollection and only if the report is accompanied by the fragmentary notes. The Court perceived such an evidentiary rule as the only way to enable counsel for a defendant "to proceed with a meaningful cross-examination of the officer”. Rudimentary due process demands that the defending party in an administrative proceeding be given a fair opportunity to confront and cross-examine adverse witnesses. Goldberg v Kelly, 397 US 254, 267-268; 90 S Ct 1011, 1020; 25 L Ed 2d 287, 299 (1970); Wheeler v Montgomery, 397 US 280; 90 S Ct 1026; 25 L Ed 2d 307 (1970); Anti-Fascist Refugee Committee v McGrath, 341 US 123; 71 S Ct 624; 95 L Ed 817 (1951) (concurring opinion per Frankfurter, J.), quoted with approval in Wisconsin v Constantineau, 400 US 433; 91 S Ct 507; 27 L Ed 2d 515 (1971); Greene v McElroy, 360 US 474; 79 S Ct 1400; 3 L Ed 2d 1377 (1959), and Reilly v Pinkus, 338 US 269; 70 S Ct 110; 94 L Ed 63 (1949). Since the decision in Rosborough was promised on the right to confront and cross-examine, it is our opinion that the evidentiary rule promulgated therein is applicable to administrative proceedings.
Nonetheless, we are constrained to hold that the Rosborough decision is not applicable to the instant cases because the surveillance involved was concluded before the effective date of that decision. It is our opinion that Rosborough applies only to fragmentary notes and reports based on surveillance occurring after March 9, 1972. All surveillance at issues herein was concluded in 1971.
The evidentiary rule announced in People v Rosborough, supra, 195; 195 NW2d at 261, is applicable only to "future cases”. In People v Whisenant, 384 Mich 693, 697-702; 187 NW2d 229, 230-233 (1971), our Supreme Court devoted almost six pages of its opinion to distinguishing "trials commenced” from "cases commenced” and "prosecutions commenced”. We cannot believe that, only nine months later, the same Court would use the phrase "future cases” as the equivalent of "future trials”. Therefore, while we must conclude that the Court intended to give Rosborough prospective application, we must also conclude that the decision does not apply to all trials and administrative hearings conducted after March 9, 1972.
Although the Whisenant decision expressly distinguished "trials commenced” from "cases commenced” or "prosecutions commenced”, that decision neither expressly distinguished "prosecutions commenced^ from "cases commenced”, nor did it equate the two terms. However, it is our conclusion that the Court used "future cases” in its Rosborough decision to mean other than "future prosecutions”. Had the Court intended to limit Rosborough to "future prosecutions”, we think it would have said so. Furthermore, the application of Rosborough only to "future prosecutions” would risk creating the very "anomalous situations” the Court sought to avoid in Whisenant.
In Michigan a criminal prosecution is commenced when a warrant is issued in good faith and delivered for execution. People v Clark, 33 Mich 112 (1876), quoted in People v Whisenant, supra, 700; 187 NW2d at 232. Analogously, a prosecution before a police trial board commences when formal charges are filed against the officer. Although the charges against appellants herein all arose out of the same 1970-1971 surveillance, charges were not levied against appellants at the same time. Sergeants Daugherty and Rickard were charged on December 20, 1971. Sergeant Sponick was not charged until March 14, 1972. Therefore, if "prosecutions commenced” is the determinative date for Rosborough, Sergeant Sponick’s right to confront and cross-examine his accusers is significantly different than the same right of Sergeants Daugherty and Rickard to confront those same accusers.
Thus, we conclude that People v Rosborough, supra, is applicable only to cases in which relevant surveillance occurred after March 9, 1972. In People v Charlie Lee Woods, 382 Mich 128, 132-136; 169 NW2d 473, 475-477 (1969), our Supreme Court expressed a clear preference for such a form of prospective application when police conduct and suppression of evidence are involved.
C.
Each appellant was interrogated by the Internal Affairs Section of the Detroit Police Department. Prior to any questioning, a "Certificate of Notification of Constitutional Rights — Departmental Investigation” was handed to each appellant and thereafter read to them. That certificate advised appellants of their constitutional right to remain silent, but warned that refusal to answer appropriate questions regarding conduct as a police officer would be grounds for immediate dismissal. The certificate also advised appellants that any statements made by them and any evidence derived from such statements could not be used in subsequent criminal prosecutions against them. Each appellant acknowledged in writing that he understood his rights and was willing to answer questions put to him. Each appellant was then interrogated and their answers were transcribed. The transcripts of appellants’ responses were received into evidence by the trial boards. Sergeant Rickard objected to the receipt into evidence of the transcript of his responses. He renews that objection here.
Sergeant Rickard concedes that a police trial board may receive into evidence a statement made by a police officer under threat of dismissal, provided that the statement and any evidence derived therefrom are not used against the officer in criminal proceedings. Garrity v New Jersey, 385 US 493; 87 S Ct 616; 17 L Ed 2d 562 (1967). Nonetheless, Sergeant Rickard claims that the statement made by him is inadmissible because obtained under false pretenses. The Sergeant reads the Certificate of Notification of Constitutional Rights to include a promise of immunity, which promise is allegedly beyond the authority of the Detroit Police Commissioner. We do not so read the certificate. Paragraph 5 of the certificate, which paragraph is reproduced in the margin, does not promise immunity. It merely states the applicable law: if a police officer makes a statement, that statement and any derivative evidence cannot be used against the officer in a criminal prosecution. Therefore, Sergeant Rickard was fully advised of the applicable law and his statement was admissible before the trial board.
D.
In addition to visual surveillance of the Anchor Bar and Leiter’s Lounge, the FBI apparently engaged in extensive electronic surveillance. With one exception, we do not know the nature of that electronic surveillance. In September, 1972, after the proceedings reviewed herein, a Federal District Judge ruled that all the electronic surveillance had been conducted without proper authorization as required by Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 USCA 2516, 2518). Accordingly, he ordered suppressed all conversations intercepted and all evidence derived therefrom. United States v Wierzbicki, Criminal Docket #45884 (ED Mich, 1972). Wierzbicki was a Detroit police officer arrested on federal gambling charges as a result of the same investigation which resulted in charges of misconduct against appellants.___
Appellants claim that the evidence submitted against them at their trial board hearings was "tainted” by the illegal wiretaps condemned in the Wierzbicki decision. They ask us to vacate the discipline to which they have been subjected and to order suppressed all evidence tainted by the illegal wiretaps. We accept the decision in Wierzbicki as dispositive of the legality of the electronic surveillance at issue herein. We also agree with appellants that evidence obtained by means of illegal electronic surveillance may not be used, in any government proceeding, state or Federal, including police trial board hearings. 18 USCA 2515, 2518(10)(a); 1968 US Code Cong & Admin News, p 2185. However, appellants have not alleged that they are "aggrieved persons” within the meaning of 18 USCA 2510(11), 2518(10), and therefore entitled to complain about the illegality of the electronic surveillance. Nor have appellants indicated to us in any manner whatsoever just what evidence submitted against them was derived from illegal electronic surveillance. No contents of conversations or other oral communications were submitted into evidence before the trial boards. We cannot imagine what evidence used against appellants at the trial board hearings could have been derived from overheard conversations. The evidence against appellants consisted of visual observations of them entering and leaving two bars, visual observations of them conversing with certain individuals inside those bars (no evidence was submitted as to the contents of those conversa tions), and the failure of appellants to report such visits to the Anchor Bar and meetings therein.
In addition to having its agents inside the Anchor Bar posing as patrons, the FBI had a video tape machine located in an adjacent building. This machine photographed, apparently through a hole in the common wall, what transpired inside the bar and recorded at least some of the conversations which occurred in the bar. Sergeant Rickard appeared in one of the tapes. The trial board admitted into evidence the video portion of that tape. Because of the motion to suppress pending in Federal District Court in the Wierzbicki case, the trial board excluded the audio portion of the tape. Sergeant Rickard’s counsel objected to receipt of even the video portion of the tape.
Because Title III of the Omnibus Crime Control and Safe Streets Act of 1968 applies only to "wire communications” and "oral communications”, 18 USCA 2510(1) and (2), and 2515, the act does not apply to photographic surveillance. Therefore, the video portion of the tape showing Sergeant Rickard is inadmissible only if obtained in violation of the Sergeant’s constitutional rights. We find no violation of constitutional limitations.
The Anchor Bar is a public tavern. Therefore, people in the bar must expect to be observed by those members of the public who patronize the bar. A video tape machine, insofar as it photographs only, is merely making a permanent record of what any member of the general public would see if he entered the tavern as a patron. Accordingly, to photograph Sergeant Rickard’s presence in the bar did not violate his "reasónable expectations of privacy”. The Fourth Amendment protects only "reasonable expectations of privacy”. Katz v United States, 389 US 347; 88 S Ct 507; 19 L Ed 2d 576 (1967). See also Harris v United States, 390 US 234; 88 S Ct 992; 19 L Ed 2d 1067 (1968); Ponce v Craven, 409 F2d 621, 624-625 (CA9, 1969).
V RULES OF PROCEDURE
A.
At the conclusion of the prosecution’s case Sergeant Sponick’s counsel moved for a directed verdict of acquittal. The trial board took the motion under advisement. At the conclusion of all proofs the motion was denied. Sergeant Sponick claims that it was "arbitrary and unfair” for the trial board to defer passing on his motion until the close of the proofs, for such postponement forced him to "risk * * * supplying missing evidentiary elements”.
In this jurisdiction trial judges in criminal prosecutions have long been allowed to take under advisement motions for directed verdict of acquittal and then deny those motions when the defendant’s proof supplies necessary evidence. People v Barlow, 134 Mich 394; 96 NW 482 (1903); People v Garcia, 33 Mich App 598, 601; 190 NW2d 347, 349 (1971); and People v Qualls, 9 Mich App 689, 697; 158 NW2d 60, 64-65 (1968). If such is permissible in criminal prosecutions, it certainly is permissible in administrative inquiries.
Furthermore, a motion for directed verdict made at the close of the prosecution’s case must be denied if the prosecution has presented "any evidence” in support of its case. People v Wesley Brown, 35 Mich App 153, 155; 192 NW2d 281, 282 (1971); People v Garcia, supra. In Sergeant Sponick’s case the evidence presented by the prosecution justified the trial board’s finding of misconduct. Accordingly had the trial board ruled on Sergeant Sponick’s motion when made, it would have been justified in denying that motion. As a matter of fact, given the evidence presented by the prosecution, it would have been error to grant the motion. Therefore, denying the motion at the close of all proofs was not error.
B.
Sergeant Sponick’s trial board found him "guilty of all four * * * specifications * * * as formally charged before this Panel”. Sergeant Daugherty was found "guilty of both * * * specifications * * * as formally charged before the Board”. Sergeant Rickard was found "not guilty of the offenses described in specification 2”, but "guilty of those offenses enumerated in specification 1”. Sergeant Rickard’s trial board explained why they found him guilty of specification I. No explanations were offered by Sergeant Sponick’s trial board or by Sergeant Daughterty’s trial board. Sergeant Sponick complains that a finding of "guilty as charged” is not an adequate finding of fact. We disagree. A finding of "guilty as charged” is not an exemplary finding, but it is adequate. We base our decision on the case of Viculin v Department of Civil Service, 386 Mich 375; 192 NW2d 449 (1971).
Donald Viculin was an examiner with the Vocational Rehabilitation Division of the Michigan Department of Education. Because of two consecutive "unsatisfactory” service ratings, Viculin was dismissed by his immediate superiors. He appealed the dismissal to the Civil Service Hearing Board. Formal charges were filed against Viculin before the hearing board, a hearing was held, findings were made, and the dismissal was affirmed. The board’s findings of fact recited verbatim the charges filed before the board. The charges filed and the findings made are reproduced in the margin. Viculin then appealed to the Civil Service Commission. Another hearing was held. Viculin was informed by letter by the commission that it "affirmed the Hearing Board’s decision”. On appeal to the Supreme Court Viculin complained that the findings of the Civil Service Hearing Board and those of the Civil Service Commission were inadequate. The Supreme Court affirmed, holding that the "findings” were "sufficient”, although the board and the commission "could have been more articulate in presenting their findings and the basis for their decisions”. Viculin v Department of Civil Service, supra, 405-406; 192 NW2d at 465. See also Martin v Wayne County Civil Service Commission, 16 Mich App 536, 538, 540-541; 168 NW2d 419, 420, 421 (1969).
Findings of fact which recite verbatim the charges levied against an individual are, in effect, findings of "guilty as charged”. Therefore, on the basis of the Vieulin decision, we hold that the findings of fact made by Sergeant Sponick’s trial board "could have been more articulate”, but were "sufficient”.
VI SUFFICIENCY OF THE EVIDENCE
A.
Sergeant Rickard was found not guilty of failing to timely report "knowingly and intentionally having had] contact on February 5, 1971, March 4, 1971, and April 2, 1971”, with a convicted criminal (Specification II). However, he was found guilty of having deliberately submitted false daily activity logs (Specification I) in that his daily logs for February 5, 1971, March 4, 1971, and April 2, 1971, indicated that he was elsewhere than the Anchor Bar on those dates at times when the trial board determined that he was, in fact, in the Anchor Bar. Sergeant Rickard claims that implicit in his acquittal on Specification II are findings of fact which necessitate acquittal on Specification I. We disagree.
Specification II charged Sergeant Rickard with having been in the Anchor Bar on certain dates, and having had contact while there with a named individual, and with having failed to report said contacts. The Sergeant was acquitted of the specification because the trial board "entertain[ed] a doubt” that Rickard deliberately had contact with the named individual. The board did not find that he was never in the bar. Specification I merely charged the Sergeant with having been in the Anchor Bar on the same dates specified in Specification II and with having submitted daily logs indicating he was elsewhere. Contact with anyone is not an element of Specification I. Therefore, acquittal on Specification II did not preclude conviction on Specification I.
B.
Each appellant claims that the trial boards’ findings of misconduct are not supported by the evidence.
We must sustain challenged determinations of fact by administrative agencies if those determinations are supported by "competent, material and substantial evidence on the whole record”. Const 1963, art 6, § 28; Viculin v Department of Civil Service, supra, 403; 192 NW2d at 464. We do not now detail the adequate factual bases for Specifications II, III, and IV against Sergeant Sponick, and Specification I and II against Sergeant Daugherty, for we have ordered those specifications dismissed because premised on defective regulations. We will set forth the factual bases for only those specifications not premised on defective regulations. With a single exception to be explained below, we find all the remaining findings of misconduct "supported by competent, material and substantial evidence on the whole record”.
1. Case #15396
Speciñcation I. Detroit police officers and FBI agents on surveillance duty outside the Anchor Bar on November 17, 1970, observed Sergeant Sponick enter the bar at 10:09 a.m. and remain therein until 11:14 a.m. Sergeant Sponick’s activity log for November 17, 1970, makes no mention of the one hour spent in the Anchor Bar. Rather, the log shows Sergeant Sponick leaving the pre cinct at about 10 a.m., going to the garage at headquarters for gasoline, and then engaging in general police work. The trial board was justified in concluding that Sergeant Sponick spent one hour in the Anchor Bar on November 17, 1970, and that he falsified his activity log for that day to obscure that fact.
2. Case #15397
Specification I. Testimony by police officers on surveillance'duty outside the Anchor Bar placed Sergeant Rickard inside the Bar on February 5, 1971, from 9:23 a.m. until 11:13 a.m.; on March 4, 1971, from 9:01 a.m. until 10:31 a.m.; and on April 2, 1971, from 9:07 a.m. until 9:40 a.m. Sergeant Rickard did not contest this evidence.
Daily logs purporting to be those of Sergeant Rickard for the dates at issue were then submitted into evidence. Sergeant Rickard identified as his own the signatures appearing on the logs for February 5th and April 2nd. He denied that the signature on the log dated March 4th was his. A cursory comparison of the logs for February 5th and April 2nd with the log for March 4th indicates that the signatures thereon are very different. Because Sergeant Rickard refused to admit that the signature on the log for March 4th was his or that he had authorized anyone to sign the log of March 4th for him, and because the prosecution offered no evidence that the signature on the March 4th log was the signature of Rickard or that Rickard had authorized anyone to sign his name for him, we must conclude that the prosecution failed to prove its case as to March 4th. However, adequate proof was submitted as to February 5th and April 2nd.
The trial board was entitled to infer that the logs for February 5th and April 2nd were false. Sergeant Rickard’s log for February 5, 1971, shows him arriving in the office at 8 a.m. and doing miscellaneous office work until 10:15 a.m., at which time he left the office and visited one George Wright about some charitable solicitation, had lunch, visited some recruiting office, and then observed labor pickets beginning at approximately 2:45 p.m. According to his log Sergeant Rickard did not spend any time on February 5, 1971, in the Anchor Bar. The evidence suggested the contrary. The Sergeant’s log for April 2, 1971, shows the Sergeant arriving on duty at 7:45 a.m. and doing miscellaneous office work until 10 a.m., at which time he left for the City Clerk’s office. At approximately 10:30 a.m. Rickard attended a union meeting. At 12:30 p.m. Rickard and his partner checked into their offices and then went to lunch. According to a fair reading of this log Rickard spent no time in the Anchor Bar. The trial board was entitled to infer from the evidence that such was false.
C.
At his trial board hearing Sergeant Sponick presented some evidence to the effect that scores of Detroit police officers were lax in the preparation of daily logs and other required reports, but were not prosecuted. He claimed then, and claims now, that pressing charges against him and a handful of other officers was unfair in light of such widespread unpunished laxity.
The United States Constitution forbids the discriminatory enforcement of nondiscriminatory laws and regulations. However, the conscious exercise of some selectivity in the enforcement of a law or departmental regulation is not, in itself, a violation of the Federal Constitution. In order to be a violation of the Constitution, the selectivity must be based upon race, religion, or some other arbitrary classification. Intentional or purposeful discrimination will not be presumed; it must be shown affirmatively. Oyler v Boles, 368 US 448; 82 S Ct 501; 7 L Ed 2d 446 (1962); Snowden v Hughes, 321 US 1; 64 S Ct 397; 88 L Ed 497 (1944); Society of Good Neighbors v Mayor of Detroit, 324 Mich 22; 36 NW2d 308 (1949); People v Gillespie, 41 Mich App 748, 750-751; 201 NW2d 104, 105 (1972); People v Sawicki, 4 Mich App 467, 476-477; 145 NW2d 236, 240-241 (1966). No showing of intentional discrimination has been made in the instant cases. There has not even been an allegation of such discrimination.
VII. DISCIPLINE
The trial board which found Sergeant Sponick guilty as charged demoted him to the rank of patrolman, and ordered that he not be considered for promotion from the then current eligible register or from the next register. In effect, Sergeant Sponick was denied promotion for four years. Sergeant Rickard’s trial board ordered him to forfeit five leave days and further ordered that he not be considered for promotion from the then current eligible register.
Sergeant Sponick claims that the Police Commissioner has no authority to deny promotion to any police officer who has taken and passed the qualifying examinations. He also claims that denying promotion is so disproportionate to the misconduct of which he was convicted as to be cruel and unusual punishment. The circuit judge who reviewed these cases thought that the discipline ordered against appellants was harsh. He re manded the cases with the suggestion that the severity be mitigated. However, he felt himself without authority to order such mitigation. Apparently, the commissioner rejected the circuit judge’s suggestion.
Because, upon remand, Sergeant Sponick is to be disciplined for substantially less misconduct than that for which he was originally disciplined, the new discipline may be different than that complained of. Were Sergeant Sponick’s case the only one before us, w:e would decline to consider his challenge to the discipline imposed on him as a potentially unnecessary resolution of a constitutional issue. However, Sergeant Rickard, who was also denied promotion, is to be disciplined anew for essentially the same misconduct for which he was originally disciplined. The likelihood of promotion again being denied to Sergeant Rickard is substantial. Therefore, as guidance to Sergeant Rickard’s trial board and in hopes of precluding another appeal, we will consider the challenges made against denial of promotion as a form of discipline.
The Police Commissioner is charged with making "all proper rules for the government and discipline” of the department, Detroit Charter, Title 4, ch 21, §5(a), and is given all powers "necessary * * * for the proper discharge of his duties”. Detroit Charter, Title 4, ch 21, § 5(m). To withhold from the commissioner authority to deny promotion as discipline for misconduct is to deny him an effective tool for discharging his duty to properly discipline the department.
Finally, all departmental trial boards are authorized to discharge any officer convicted of misconduct or to impose such "other penalty as the board may prescribe”. Detroit Charter, Title 4, ch 21, § 16. If a trial board may discharge an errant officer from the force, it certainly can impose a lesser penalty, including forfeiture of leave or pay, denial of promotions, etc.
By filing false activity logs a police officer compromises the integrity of the Detroit Police Department. The public is entitled to infer that, when a police officer deliberately conceals from his superiors his activities while on duty, those activities are improper. Unless the public is convinced that its police officers scrupulously obey the rules and regulations of the department, the public cannot be certain that its police officers will obey the constitutions and laws they are charged with enforcing. Accordingly, denial of promotion is not out of proportion to such misconduct and does not violate either the Federal Constitution or the Constitution of this state. People v Lorentzen, 387 Mich 167, 172, 174-176; 194 NW2d 827, 829, 830-831 (1972).
VIII. CONCLUSION
Specifications II, III, and IV against Sergeant Sponick are dismissed. The trial board’s finding of fact as to Specification I is affirmed. The case is remanded to the original trial board for reconsideration of discipline. If the original trial board cannot be convened, the commissioner shall appoint another board to reconsider discipline. If a new board must be convened, it shall include as many of the members of the original board as are still with the Detroit Police Department.
The trial board’s findings of fact as to Specification I against Sergeant Rickard are affirmed, ex-, cept as to the charge of filing a false activity log for March 4, 1971. That one charge is dismissed. The case is remanded for reconsideration of disci pline. If possible, the original trial hoard shall reconsider the discipline to be imposed on Sergeant Rickard. If the original board cannot be convened, the commissioner shall act as ordered above.
Specifications I and II against Sergeant Daugherty are dismissed. Sergeant Daugherty is to be fully reinstated and promoted to the rank of lieutenant, effective the date he would have been so promoted were it not for these proceedings.
Case # 15396: Affirmed in part; reversed in part. Remanded.
Case #15397: Affirmed in part; reversed in part. Remanded.
Case #15398: Reversed.
All concurred.
Detroit Police Manual, ch 3, § 34(8) provides:
"Conduct unbecoming an officer, which shall include any act or conduct not specifically mentioned in the rules and regulations which tends to bring the department into disrepute or reflects discredit upon the individual as an officer.”
Detroit Police Manual, ch 3, § 34(41) provides:
"Knowingly and intentionally associating with (unless in the course of their official duties): convicted criminals or persons charged with crimes excluding traffic and municipal ordinance violations; or persons known or suspected of criminal offenses of any type, including subversive activities which tend to jeopardize the security of the government.”
Detroit Police Manual, ch 4, § 73 provides:
"Each time any member knowingly and intentionally has contact with or goes to a location frequented or suspected of being frequented by:
1. Convicted criminals or persons charged with crimes excluding traffic and municipal ordinance violations: or
2. Persons known or suspected of criminal offenses of any type, including subversive activities which tend to jeopardize the security of the government;
an information report shall be prepared in duplicate on a PCR within 24 hours, unless such contact or visit is properly recorded on a routine report such as activity log, interrogation sheet, routine PCR or other official department record.
"When an information report is prepared, both copies shall be forwarded to the commanding officer of the Inspectional Services Bureau. If the member preparing the report wishes to keep the information confidential, he may personally convey the report to the commanding officer of the Inspectional Services Bureau. Failure to follow the above procedures shall be considered neglect of duty.”
Since 1960, Sherman has been convicted of failing to purchase a gambling tax stamp (1960), willfully failing to file a Federal income tax return (1961), income tax evasion (1963), conspiracy to violate Michigan liquor laws (1966), and attempted bribery of a police officer (1966). Because Sergeant Sponick had been assigned for some time to the vice bureau and because he had been assigned to investigate a magazine article alleging connections between Sherman and the police department, it would he reasonable to conclude that Sponick was fully aware of Sherman’s criminal record and the suspicions as to his criminal activities.
We estimate that approximately 250,000 cases covered by the challenged regulation were commenced in this state in 1972. This figure includes criminal cases commenced in all the county circuit courts (19,027) and all felonies commenced in Detroit Recorder’s Court (12,213); all misdemeanors other than traffic offenses and violations of Detroit ordinances commenced in Recorder’s Court (14,- 968); all cases other than traffic offenses commenced in the state’s district courts, minus cases bound over to circuit courts (173,230); and all cases other than traffic offenses commenced in municipal courts, minus cases bound over to circuit courts (27,143). Admittedly, some actions against one defendant for several violations have been recorded as several "cases”. On the other hand, however, some actions with several codefendants have probably been recorded as a single case. We have no way of separating municipal ordinance violations out of the cases commenced in the district courts and municipal courts. However, since a defendant is not likely to know whether he was tried for an ordinance violation or a state misdemeanor (the same crime may be tried as either depending on the location of the alleged offense), to be safe a policeman is likely to assume all cases other than traffic offenses are covered by the regulation. Hence, the figure of 250,000 indicates the order of magnitude of the situation before us. Allowing for a recidivism rate of 50% within each year and 50% from year to year, approximately 0.6% of the population of this state (nine million) is involved each year for the first time with the criminal law other than traffic offenses to the point of having charges filed and not dismissed before getting to court. That means that some multiples of 0.6% of all people currently living in this state fall within the proscribed class of associates. Our statistics are from Sup Ct of Mich, 1972 Annual Report, pp 24, 26, 36, 135, 144-145. Within racial minority neighborhoods and poverty neighborhoods, the percentage of associations within the proscribed class will be substantially higher. President’s Commission on Law Enforcement & Admin of Justice, The Challenge of Crime in a Free Society (E. P. Dutton & Co, Inc, 1968), pp 130-133, 149-150. To obey Detroit Police Manual, ch 3, § 34(41), a minority police officer or a police officer who comes from a poverty area would have to abandon his neighborhood and his past.
As to Sergeant Sponick’s awareness of Sherman’s recent criminal record and currently suspected criminal activities see fn 2, supra. Sergeant Daugherty admitted full knowledge of Sherman’s record.
Since Sections 1-A and I-C(2) of this opinion require the dismissal of both specifications against Sergeant Daugherty, for purposes of the remainder of this opinion "appellants” are Sergeants Sponick and Rickard.
"If I do answer, and immunity, federal, state, or other has not been given, neither my statements nor any information or evidence which is gained by reason of such statements can be used against me in any subsequent criminal proceeding.”
Had appellants been the persons at whom the electronic surveillance was directed or had appellants been parties to intercepted conversations, the Federal judge who authorized the surveillance would have notified appellants thereof. 18 USCA 2518(8)(d). Had appellants been notified that they were, in effect, "aggrieved” persons (18 USCA 2510[11]), we are confident appellants would have so notified us.
The following charges were lodged against Donald Viculin (See Viculin v Department of Civil Service, 386 Mich 375; 192 NW2d 449 [1972], Appellant’s Appendix, p 144a):
"1) Unnecessary long delays of cases * * *
"2) Lack of response to supervisor’s help * * * .
"3) Gross errors in case action * * * .
"4) Carelessness in routine work » * * .
"5) Poor case management at desk * * * .
"6) Inability to acknowledge mistakes * * * .
"7) Poor handling of invoices * * * .”
The asterisks above represent references to memoranda stating the particulars of each specification against Viculin.
The Civil Service Hearing Board made the following "findings” (Viculin v Department of Civil Service, supra, 382; 192 NW2d at 453):
" '1. Unnecessary long delays of cases.
" '2. Lack of response to supervisor’s help.
" '3. Gross errors in case action.
" '4. Carelessness in routine work.
" '5. Poor case management at desk.
" '6. Inability to acknowledge mistakes.
" '7. Poor handling of invoices.’ ”
The Civil Service Commission adopted as its own the findings of the Civil Service Hearing Board. | [
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] |
V. J. Brennan, P. J.
Defendant was convicted of committing an act of gross indecency with a female person (MCLA 750.338b; MSA 28.570[2]) by a jury in the Wayne County Circuit Court. The testimony at trial revealed that on the evening of January 19, 1972, two members of the Dearborn Heights Police Department observed defendant’s car near a store entrance in a private parking lot. A few moments later, the officers again passed the store; at that time they noted that defendant’s car had been moved to a darker area of the parking lot. The officers then placed the vehicle under observation for approximately 15 minutes, and noted that the motor was running and the lights were out.
Having their curiosity aroused, and their suspicions raised, the officers approached the car. After turning on their flashlights, they observed the defendant; they also observed the fact that his trousers were opened. Defendant’s companion, a girl of chronologically young years, but of questionable naivete, had her hand on defendant’s penis.
Defendant was arrested and brought to trial. The only significant disparity between the testimony of the defendant and that of his companion was whether her hand made its way to defendant’s genitals of her own free will, or whether the defendant placed her hand there. There is absolutely no question that her participation was quite voluntary.
Defendant’s first argument on appeal consists of a challenge to the constitutionality of the statute under which he was convicted. That statute provides, in pertinent part, as follows:
"Any male person who, in public or in private, commits or is a party to the commission of any act of gross indecency with a female person shall be guilty of a felony, punishable as provided in this section. Any female person who, in public or in private, commits or is a party to the commission of any act of gross indecency with a male person shall be guilty of a felony punishable as provided in this section. Any person who procures or attempts to procure the commission of any act of gross indecency by and between any male person and any female person shall be guilty of a felony punishable as provided in this section. Any person convicted of a felony as provided in this section shall be punished by imprisonment in the state prison for not more than 5 years, or by a fine of not more than $2,500.00 * * * .” MCLA 750.338b; MSA 28.570(2).
Defendant phrases his challenge by urging that the statute is unconstitutionally vague in that it does not have sufficient specificity to guide those who would abide by it, to advise those charged thereunder of the nature of the accusation, or to guide the courts in the trial of those charged with its violation.
In the context of his "vagueness”, defendant also asserts that the statute is void for "overbreadth”. A statute may be void for overbreadth if, when fairly read, it prohibits or punishes conduct which is constitutionally protected. Stromberg v California, 283 US 359; 51 S Ct 532; 75 L Ed 1117 (1931); Cox v Louisiana, 379 US 536; 85 S Ct 453; 13 L Ed 2d 471 (1965). The statute before us prohibits an "act of gross indecency” between "any male person” and "a female person” "in public or in private”. A fair construction of the statute reveals that it would apply to an act between a husband (a male person) and his wife (a female person) in the privacy of their bedroom. The United States Supreme Court has recognized a "right of privacy in marriage” which the state may not invade. Griswold v Connecticut, 381 US 479; 85 S Ct 1678; 14 L Ed 2d 510 (1965). At least one commentator on Griswold has said:
"It would seem reasonably clear that other laws attempting to prohibit certain kinds of sexual activity by married couples, such as so-called acts of 'perversion,’ requiring a type of enforcement similar to that implicit in the Connecticut statute, would fall under the ban against invasion of privacy.”
Nine Justices in Search of a Doctrine, Thomas I. Emerson, 64 Mich L Rev 219, 231 (1965).
However, in keeping with the oft-reiterated doctrine that courts will not invalidate a statute on constitutional grounds if it is not necessary to reach that issue, we turn to defendant’s second argument. His argument is essentially that, this private act which defendant is charged with committing does not, as a matter of law, constitute an act of "gross indecency”. In People v Danielac, 38 Mich App 230; 195 NW2d 922 (1972), appeal dismissed, 389 Mich 545 (1973), this Court held that the act of intercourse between a male and a female did not constitute "gross indecency”. On the authority of that case, had defendant and his companion in this instance been apprehended in the act of intercourse we would reverse. If an act of intercourse is not "gross indecency” we do not see how the action with which defendant is charged could possibly constitute a violation of the statute. We make no comment regarding whether the alleged facts might constitute a violation of some other statute.
Reversed and discharged.
All concurred.
Companion statutes prohibit acts of gross indecency between two male persons (MCLA 750.338; MSA 28.570) and between two female persons (MCLA 750.338a; MSA 28.570[1]).
For analyses of the question of statutory indefiniteness in generad, see Comment, 53 Mich L Rev 264 (1954), and Note, 62 Harvard L Rev 77 (1948). | [
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Fitzgerald, P. J.
Defendants Albert and Clarence Fields were tried jointly with codefendants Irene Wyrembelski and Joanna Carson and convicted by a jury of possession, acquisition, and transportation of cigarettes without a license or permit.
At trial, State Police detectives and State Treasury agents testified as to the facts and circumstances leading up to defendants’ arrest and conviction. Proceeding on previous knowledge and surveillance of the Fields, the police witnesses followed Joanna Carson and Clarence Fields from Michigan to Angelo Brothers Wholesale Grocers located in Winston-Salem, North Carolina. Fields’ vehicle, a camper-box-fitted pickup truck, entered the Angelo establishment empty with windows uncovered and emerged twenty minutes later, window covers drawn and apparently heavily laden. The defendants were followed on their return route along Highway 1-75 into Southgate, Michigan. Fields dropped Joanna Carson off at her house and proceeded to the home of his son, Albert Fields. Albert joined Clarence in the truck, drove his father home, and returned to his house alone, where he was met by Irene Wyrembelski and two young boys. Fields and the two boys drove to the home of Joanna Carson, Wyrembelski following in a separate car. Soon after their arrival, Fields, Carson, and the two boys were observed unloading cartons of cigarettes. The law enforcement officials approached the truck and examined the cartons, observing that none bore any evidence of Michigan tax payment. A search of the Michigan Department of Treasury cigarette wholesaler license records disclosed that none of the defendants were licensed to sell or distribute cigarettes. At this point the detectives and agents placed defendants under arrest.
Both defendants testified. Clarence Fields admitted purchasing the cigarettes from Angelo Brothers, Inc., in late August, stating that it was his understanding that a supply of cigarettes must be on hand prior to making application for a license. It was defendants’ plan to sell the cigarettes in conjunction with the auto parts supply company he owned, yet he had inexplicably marked "yes” to the license application question, "Do you maintain an established place of business where substantially all of the business is the sale of cigarettes?”
Albert Fields corroborated much of his father’s testimony. He also indicated their intent to operate a wholesale cigarette business in a portion of their auto parts store. The cigarettes were stored in Joanna Carson’s air-conditioned basement to keep them fresh until receipt of the license. He further stated the cigarettes were purchased in North Carolina because they were cheaper. Defendant admitted that he had made no arrangements for developing customers, a regular Michigan supplier, or any other preparations such as stationery, purchase orders, or invoice forms.
A verdict of guilty as charged was returned as to all four defendants. Following denial of defendants’ motions for new trial, the case against Irene Wyrembelski was dismissed due to lack of evidence. Following an order granting defendant Carson’s motion for new trial, a nolle prosequi order was filed regarding the case against her. Clarence and Albert Fields were sentenced to two years probation with the special conditions that each cease and desist any association with co-defendants Carson and Wyrembelski, in addition to paying court costs of $330.
It is first alleged that the prosecutor misled defendants and the jury with respect to the nature and elements of the crime charged. Defendants argue that continued reference to tax evasion, a charge not contained in the information, together with prosecutorial language amounting to testimony of defendants’ guilt, constitute reversible error. We find this contention without merit. The information charged defendants with violation of MCLA 205.509; MSA 7.411(9), which provides in part:
"(a) Any person not a licensee in control or in possession of any cigarettes contrary to any provision of this act, or who offers to sell or does sell any cigarettes to others for purposes of resale without being licensed to do so under this act, shall be deemed to have possession of such cigarettes as an unclassified acquirer and shall be personally liable for the tax imposed by this act, plus a penalty of 100%.
"(b) Any person who possesses, acquires, transports or offers for sale any cigarettes contrary to any provision of this act, wherein the wholesale price of the cigarettes involved amounts to or exceeds the amount of $50.00, shall be guilty of a felony and upon conviction thereof shall be fined not more than $5,000.00 or imprisoned for not more than 5 years, or both.”
The information contained the penalty and enforcement provisions of the general cigarette tax act. Reference to this act, together with the language contained therein, provided reasonable notice to defendants regarding the tax evasion aspects of the case so as not to have caused surprise. MCLA 767.57; MSA 28.997. Defendants were not unaware of the need to pay taxes in connection with cigarette sales. Defendants suffered no prejudice, nor has a miscarriage of justice resulted from language contained in the information or spoken by the prosecutor in fully apprising defendants of the offense charged. People v Owens, 37 Mich App 633; 195 NW2d 36 (1972); MCLA 767.76; MSA 28.1016. We think it permissible for the prosecution to comment on tax evasion to show defendants’ motive and to point out the rationale underlying the statutory requirement. We further note that objection was not made to any portion of the prosecutor’s argument as being misleading, and thus any error was not saved for review. People v Martin, 1 Mich App 265; 135 NW2d 560 (1965).
Defendants contend the trial court abused its discretion in permitting a rebuttal witness to testify after the parties agreed to sequester witnesses where the rebuttal witness remained in the courtroom after he had testified. We do not so find. It is well settled that sequestration in a criminal trial is within the discretion of the trial court. People v Sawicki, 4 Mich App 467, 473; 145 NW2d 236, 239 (1966); 2 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 604, pp 781-782. Defendants cite no authority for their position, nor do they demonstrate any resulting prejudice to defendant. Conditions were altered which allowed the trial court to rescind the earlier exclusion order and permit the testimony of an agent to be introduced to rebut the claim of innocent mistake. Defendants’ failure to object and the lack of resulting prejudice persuade us that neither judicial abuse nor error resulted from the introduction of the testimony.
Defendants claim prejudicial error occurred when the prosecutor asked leading questions and failed to lay a proper foundation for police witnesses on direct examination. The admission of leading questions is discretionary with the court and the record discloses no clear abuse. Moreover, this issue is not developed either by reference to the record, citation to controlling authority, or reasoned argument. Consequently, further consideration on appeal is waived. People v Fuston Thomas, 36 Mich App 23, 26; 193 NW2d 189, 190 (1971), People v Williams, 29 Mich App 420, 426; 185 NW2d 435, 438 (1971).
The admission of testimony and photographs as evidence of similar acts is believed by defendants to constitute reversible error. MCLA 768.27; MSA 28.1050 permits the showing of acts similar to the crime charged to show defendants’ motive, intent, absence of mistake or accident, or modus operandi. The rebuttal testimony of agent Bushor, supported by corroborating photographs, places defendant Albert Fields and Irene Wyrembelski in knowledgeable possession of contraband cigarettes from Angelo Brothers of North Carolina in front of Clarence Fields’ auto parts store on July 13, 1971. This occurred more than six weeks prior to the late August journey, under surveillance, to North Carolina. However, Albert Fields’ testimony revealed that he worked with his father in the auto parts business. He and his father had planned to enter the cigarette supply business and he knew of his father’s attempt to obtain a license authorizing the sale of cigarettes. Contradicting the rebuttal testimony offered by the prosecution, Albert Fields testified he had never seen cases of cigarettes at Mrs. Carson’s house or in his father’s possession prior to September 1, 1971. Defendant Clarence Fields previously testified that he had never been to Angelo’s Wholesale in Winston-Salem, North Carolina prior to September 1, 1971. We are aware that mere association alone is not sufficient to implicate individuals with others involved in a crime. People v Blakes, 4 Mich App 13; 143 NW2d 769 (1966). Yet the evidence presented by the prosecution supports their theory that both defendants were associated in a common scheme to smuggle cigarettes into Michigan for resale without paying the Michigan cigarette tax. An examination of the circumstances involving Albert Fields demonstrates an inconsistency with the position taken by his father, Clarence. These inconsistencies are sufficient to be relevant in contradiction of that position on rebuttal in light of all the circumstances. Though Clarence denied any dealings with Angelo Brothers prior to the transaction leading to his conviction, both he and Al bert testified to their involvement in a contemplated cigarette-supply venture. The close association between Clarence and Albert Fields in their existing auto parts concern and Albert’s admitted awareness of the preliminary steps taken by his father to organize a "sideline” cigarette business belie Clarence’s categorical denial of any prior cigarette dealings in North Carolina with the Angelo Brothers.
From these facts, a reasonable inference can be drawn connecting the cigarettes in Albert Field’s possession at his father’s store on July 14, 1971 to the supply of cigarettes obtained by his father on August 31 as a common continuous enterprise. To deny the jury an opportunity to consider these circumstances by discounting them as mere coincidence would constitute an unreasonable exclusion of relevant evidence. Agent Bushor’s testimony contained evidence sufficiently related to the principal charge to establish relevance while indicating an absence of the mistaken identity alleged by defendant Albert Fields. MCLA 768.27; MSA 28.1050. The similarity between the photograph of Albert Fields with contraband cigarettes and the subsequent incident in which both Fields admit of their complicity render the evidence admissible. Further, the absence of a request for limiting instructions restricting the evidence to the guilt of Albert Fields and Irene Wyrembelski does not require reversal. People v McPherson, 38 Mich App 534; 197 NW2d 173 (1972); People v Harper, 39 Mich App 134; 197 NW2d 338 (1972).
The next issue raised by defendants is whether testimony amounting to admissions was properly introduced without a prior hearing to determine the voluntariness of the testimony. Defendants’ contention that a hearing on this question was required to be held is without merit in the absence of a claim of involuntariness. People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965). The record clearly indicates that a Miranda warning was given and defense counsel made no attempt to attack the validity of the assertion that such statements were in fact made.
In connection with the above issue, there remains the final question as to whether reversible error occurred where the trial court failed to sua sponte limit the admissions of codefendants as reflective of their own guilt without implicating others allegedly involved. Defendants argue that their failure to request a Walker hearing does not alter the fact that the implicating testimony was a complete surprise to them. The following testimony was received by Detective Hagstrom:
"A. She made four admissions: Number one, she did admit that she had made trips prior to this trip with Mr. Clarence Fields to North Carolina.
"The Court: All right, just restrict it then to what she said about herself.
"A. Number, one, she advised us that she had made prior trips to North Carolina for the purpose of obtaining cigarettes and bringing them back into Michigan. Number two, she advised us that the cigarettes had been stored in her basement prior to this event of September 1. And third, that she had engaged in the disposal of these prior cigarettes to persons in the down river area.”
No existing authority considers it absolute reversible error where the trial court fails to give a limiting instruction restricting admission testimony to the declarant alone. We are aware of a recent decision from this Court which found re versible error in the trial court’s failure to sua sponte limit the extrajudicial admissions of a co-defendant to the declarant. In that case, the evidence against one codefendant was tenuous, entirely circumstantial, and not connected with the planned conspiracy. Undeniably, it would have been appropriate for the trial court in the instant case to strike the testimony of defendant Carson admitting to having traveled to North Carolina on previous occasions with Clarence Fields for the purpose of transporting cigarettes to Michigan for resale. The quantum of evidence submitted as to defendants’ guilt persuades us that both defendants were consciously involved in an illegal enterprise. Substantially more than tenuous or circumstantial evidence has been introduced against them which distinguishes the instant case from Berryman.
We do not believe the admissions against defendants were sufficiently damaging to warrant reversal. Considering the testimony adduced in its entirety, we find the failure of the court to issue limiting instructions was harmless error beyond a reasonable doubt consistent with the standard set out in People v Robinson, 386 Mich 551; 194 NW2d 709 (1972).
Affirmed.
All concurred.
MCLA 205.509; MSA 7.411(9).
Clarence Fields gave conflicting testimony as to whether application for the license was made before or after his arrest.
MCLA 768.24; MSA 28.1047.
People v Berryman, 43 Mich App 366; 204 NW2d 238 (1972). | [
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] |
Danhof, P. J.
Defendant township appeals from a grant of summary judgment as a matter of law, GCR 1963, 117.2(3), in favor of plaintiff property owners, declaring the township’s 1954 zoning ordinance invalid. We reverse.
Plaintiffs, whose property has at all times since the adoption of the ordinance in question been zoned Ag-1: agricultural, attempted without success in April of 1972 to obtain from the township zoning authorities a rezoning of their property to a light industrial classification. Plaintiffs thereafter commenced this action by complaint filed July 21, 1972, alleging (1) that the ordinance amounted to an unconstitutional taking of their property without just compensation; (2) that the ordinance should be declared unenforceable as to their property; (3) that the township had failed in 1954 to pass a resolution declaring its intent to proceed under the township rural zoning act contrary to the provisions of § 2 of 1943 PA 184, being MCLA 125.272; MSA 5.2963(2), and further that the township failed to maintain a book of ordinances as required by § 2 of 1939 PA 191, being MCLA 41.192; MSA 5.6(2). It was on this third count that the circuit court entered summary judgment for plaintiffs.
The record reveals that prior to approval of the ordinance in question, the township zoning board caused on June 23 and July 14, 1954 a notice to be published in a newspaper of general circulation in the township stating that a public hearing would be held on July 17, 1954 relative to the tentative zoning plan and ordinance prior to submission on August 13, 1954 to the township board. Following adoption by the township board on September 25, 1954, the ordinance as approved was published together with a zoning map in the same newspaper of general circulation on September 29, 1954. The ordinance was to take "immediate effect and be in force from and after the earliest date allowed by law”.
The record further reveals that, from time to time subsequent to the adoption of the 1954 ordinance, after appropriate publication and notice of hearings by the zoning board, recommendations were made for amendments to the zoning ordinance and amendments were adopted by the township board. On August 13, 1960, a comprehensive amendment was adopted affecting ten articles and subsections of the zoning ordinance and was published in full on the same date.
In the opinion of the trial court, the zoning ordinance was invalid for the following reasons: (1) the township’s failure to adopt a resolution and publish notice of intent to zone under the enabling legislation; (2) the township’s failure to maintain a book with required certifications by the township clerk of ordinance publication dates and to record the vote of the township board therein; (3) since the ordinance could not take immediate effect, the general provision that the effective date of the ordinance is "the earliest date allowed by law” was insufficient for interested parties to be able to determine as of what date the ordinance took effect.
Were it not for the fact that the ordinance in question had been in existence for approximately 18 years and that during this period numerous owners and occupiers of property in Filer Township had relied upon it, we would be in complete agreement with the trial court. Defendant township concedes that it cannot prove publication of notice of intent, but points to the fact that plaintiffs acknowledged in effect the existence of the ordinance by applying to the zoning board for rezoning of their property. Moreover, although there was a failure to maintain a bound book of ordinances prior to 1961, the township did maintain a file of ordinances in which all of the township’s zoning ordinances were set forth. In September of 1961, after the adoption of the comprehensive amendment in the preceding year, a bound volume was printed containing the zoning ordinances of the township and all prior amendments. These bound volumes were maintained by the clerk of the township for distribution to all interested parties. We hold that the failure of the township clerk to keep a book of ordinances in strict compliance with MCLA 41.192; MSA 5.6(2) is not adequate ground to invalidate this ordinance.
It is true that in 1954, before the fourth sentence of MCLA 125.281; MSA 5.2963(11) was added by 1960 PA 146, this ordinance which provided penalties for violation could not have taken immediate effect, but rather became effective upon the expiration of 30 days after the first publication date of September 29, 1954. However, this should hardly be a basis for setting aside an ordinance challenged for the first time after 18 years. By operation of MCLA 41.191; MSA 5.6(1), this ordinance became effective on October 30, 1954.
When a zoning ordinance has been the subject of public acquiescence and reliance for this length of time, the reasonableness of a belated challenge is certainly open to question. Such challenges have been successfully defended on the basis of estoppel or by overriding policy .considerations. The Missouri Supreme Court, in the case of Taylor v Schlemmer, 353 Mo 687; 183 SW2d 913 (1944), refused to permit purchasers of property to attack a 14-year-old ordinance on the grounds that proper notice of hearing had not been given prior to adoption. The Court said at 695; 183 SW2d at 916, in quoting another decision:
" 'Where there is no laches, however, and an ordinance is attacked within a reasonable time after its enactment, formal or procedural defects will not be tolerated and will cause it to be set aside.’ ”
A similar challenge was turned aside by the Iowa Supreme Court in City of Creston v Center Milk Products Co, 243 Iowa 611, 614-615; 51 NW2d 463, 465 (1952):
"As pointed out by the trial court, the ordinance, if valid, had been in effect for twenty-one years at the time defendant assailed it. Under it the City had granted more than four hundred building permits. In general the owners and occupiers of property in Crestón had relied upon its validity in dealing with and improving such property since 1930. Apparently its validity had never been challenged in any suit prior to the present action.
"For twenty-one years the public acquiesced in and permitted the exercise of authority, under the zoning ordinance, throughout the City. During this time and in reliance upon the validity of the ordinance there have been changes in conditions involving extensive property interests. An adjudication that the ordinance never took effect because of the failure to strictly comply with the statute requiring its publication after its adoption would result in much confusion and loss. Such a sacrifice should not be demanded upon merely technical grounds. Under the circumstances the doctrine of estoppel is applicable. After such long acquiescence by the public with the results above-stated, no one may contend the ordinance never took effect because of irregular publication.”
The public policy considerations were alluded to by Mr. Justice William J. Brennan, Jr., then a judge of the New Jersey Superior Court, in the case of Struyk v Samuel Braen’s Sons, 17 NJ Super 1, 9; 85 A2d 279, 282-283 (1951):
"The ordinance has been in effect for ten years and '[p]ublic policy forbids an attack based upon informalities and irregularities in the procedure which led to the adoption of the ordinance, when it has been accepted as a valid enactment for a long period of time, and property owners affected by it have conformed to its provisions, and have fixed their status accordingly’.”
This language has been quoted with approval by this Court in the recent case of Northville Area Non-Profit Housing Corp v Walled Lake, 43 Mich App 424, 434; 204 NW2d 274, 280 (1972), where the city attempted to prove its own zoning ordinance, in effect little more than 4 years, invalid because of lack of publication of notice of hearing. In a comprehensive statement of public plicy, this Court in Northville stated:
"In the orderly process of handling real estate transactions where they are affected by provisions of zoning ordinances and amendments, it is essential that the members of the general public and the people buying or selling real estate must be able to rely on the validity of the public record, to wit: a zoning ordinance and the zoning map issued in accordance with such zoning ordinance, without the necessity of poring over musty files and searching newspaper morgues, going back years in order to avoid a claim by other persons that there was a failure to comply with some technical requirement of law in the adoption of the ordinance in question. To hold otherwise would bring about chaotic conditions beyond all comprehension in the transfer and usage of real estate in any community having a zoning ordinance affecting such land.” 43 Mich App at 435-436; 204 NW2d at 280.
We find this language all the more controlling in the case at bar because of the considerably longer period of public reliance. We hold that the ordinance is valid and that the granting of summary judgment was erroneous.
Reversed and remanded for proceedings not inconsistent with this opinion. No costs, a public question being involved.
All concurred. | [
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Adams, J.
John Henry Harrison was charged with first-degree murder in the March 4, 1970 slaying of Jan Logsdon. MCLA 750.316; MSA 28.548. Preliminary examination was held on March 26, 1970, April 14, 1970, and May 14, 1970. Defendant was bound over to circuit court on a charge of first-degree murder. Defendant’s trial commenced on June 22, 1971 and ended on July 9, 1971 when the jury found him guilty of first-degree murder.
Issue I
Did the trial court abuse its discretion in ñnding a minor witness competent to testify at the trial within the meaning of MCLA 600.2163; MSA 27A.2163?
At the preliminary examination, Derrell Snyder, then six years of age, was barred from testifying by the district court, which questioned his "sense of obligation” to tell the truth because, in the opinion of that court, he did not know what a "promise” was. The examining magistrate, however, did find that Derrell had "sufficient intelligence” to testify. During the trial, upon motion of the prosecutor, the trial court conducted an in camera hearing to determine whether Derrell (then age seven) was competent to testify at the trial. After discussing the issue with both counsel, holding a further separate hearing, considering the record of the hearing held on this issue before the district court, and listening to argument by counsel, the trial court found Derrell Snyder com petent to testify under the statute. In so doing, the court stated in part as follows:
’’The Court: In discussing the matter earlier, setting the background for this, I think I failed to indicate that most importantly I had discussed with Derrell Snyder, the youngster involved, in the presence of both counsel, in addition to the other witnesses that I named for the purposes of this so-called competency hearing. I think it is uncontradicted that both Judge Horrigan and this court have indicated that the youngster appears to be intelligent enough to testify. I think that the reservations that Judge Horrigan had, the examining magistrate in this matter, was whether this youngster had the sense of obligation to tell the truth as the statute in question [MCLA 600.2163; MSA 27A.2163] indicates. I think those are the two principal issues that the court has to decide, and I concur with Judge Horrigan, that he has sufficient intelligence, and I disagree with him as to the sense of obligation to tell the truth, because it appears to me that the youngster does have that sense of obligation to tell the truth.”
In McGuire v People, 44 Mich 286, 287-288; 6 NW 669, 670 (1880), there is an excellent statement by Justice Campbell pertaining to the testimony of a boy who was a few months over six years of age. He points out that if the judge is satisfied to allow the testimony, "the inability of such an inexperienced boy to keep up a consistent false story through the various questionings of a trial is a pretty safe guard against any great danger on that head”. See also People v Walker, 113 Mich 367; 71 NW 641 (1897); People v Minchella, 268 Mich 123; 255 NW 735 (1934).
The trial court specifically concluded that Derrell had not been unduly influenced in any way by his mother, by the detective in charge of the case, or by the prosecutor. We agree with that conclusion. Derrell testified that Miss Logsdon had gone outside with defendant on a certain night when she had been baby-sitting with Derrell and that he (Derrell) had told this fact at that time over the telephone to Michael O’Neal.
We find no error.
Issue II
Did the trial court err reversibly by allowing Michael O’Neal to testify at trial regarding a statement made to him by Derrell Snyder in a telephone conversation on March 4,1970?
After the testimony of Derrell Snyder, Michael O’Neal testified that at approximately 7 p.m. on March 4, 1970 he called the Snyder home, where Jan was baby-sitting, and talked with Derrell Snyder. O’Neal called back and talked with Derrell again at about 7:30 p.m. The witness stated that Derrell then told him over the telephone that Jan had gone "outside with the man next door, out back”. Defense counsel objected, claiming that the statement made to O’Neal was hearsay. The trial judge overruled the objection and the testimony was allowed to stand.
The prosecutor has presented two grounds for the admission of the challenged testimony: 1) that it was not offered to establish the truth of Derrell’s telephone statement, but only to pinpoint the particular night on which the call took place; and 2) that Derrell’s statement was admissible as a res gestae exception to the hearsay rule.
The first ground relied upon by the people is insufficient, under the facts of this case, to justify admission of the statement. As to the second argument advanced in support of admissibility, the governing rule is aptly stated in Sexton v Balinski, 280 Mich 28, 29-30; 273 NW 335, 336 (1937), as follows:
"Statements which are part of the res gestae are always hearsay but constitute, as generally classified, an exception thereto based upon the fact they are spontaneous exclamations which by virtue of their origin have a peculiar trustworthiness. The only conditions on which such statements will be allowed in evidence are: (1) That there is a startling occasion, startling enough to produce nervous excitement and render the utterance spontaneous and unreflecting; (2) the statement must have been made before there has been time to contrive or misrepresent; and (3) the statement must relate to the circumstances preceding it.”
See also Holtz v LJ Beal & Son, Inc, 339 Mich 235; 63 NW2d 627 (1954); Rice v Jackson, 1 Mich App 105; 134 NW2d 366 (1965); People v Kelley, 32 Mich App 126; 188 NW2d 654 (1971).
The record in this case is devoid of evidence justifying a conclusion that Derrell’s telephone statement was made under conditions which would render the remark admissible as a res gestae exception to the hearsay rule. The trial judge therefore erroneously admitted the statement into evidence.
As stated earlier, prior to O’Neal’s hearsay testimony Derrell Snyder had himself testified that Jan Logsdon left the house with defendant, and he was cross-examined by defense counsel. Since the hearsay statement related by O’Neal recapitulated and was merely cumulative of Derrell’s earlier testimony, its admission was harmless error beyond a reasonable doubt. People v Dykes, 37 Mich App 555; 195 NW2d 14 (1972).
Issue III
Where an expert witness testiñed for the prose cution, and the defense was not provided with the content of this expert testimony until one day before the witness took the stand, did the court err in admitting this evidence?
Approximately nine months before trial the name of Walter Holz, an expert associated with the Division of Crime Detection of the Michigan Department of Public Health, was endorsed as a witness. The relevant paragraphs in the prosecutor’s affidavit and motion requesting endorsement of Holz read as follows:
"3. Certain physical evidence in this case is currently being subjected to certain scientific examinations and analyses, such examination and analyses including, without limitation, nuclear activation analysis at the laboratory of Gulf General Atomic, Incorporated, in San Diego, California.
"4. Although no written reports on these analyses and examinations have yet been received, and although said analyses and examinations are believed to be not yet completed, it is the desire of the people to make early disclosure of any witnesses not presently endorsed on the information herein who relate to these analyses and examination.” (Emphasis added.)
The scientific report prepared by Holz was furnished to defense counsel one day before Holz testified. At trial, Holz testified exclusively regarding his own analyses (which tended to implicate defendant) and did not discuss analyses performed by Gulf General Atomic, Inc. Defendant now claims that the prosecution endorsed Holz solely for the purpose of testifying regarding scientific examinations performed by Gulf, and also claims that under the pressure of the trial he did not have time adequately to evaluate Holz’ final laboratory report.
Although a careful scrutiny of the record does not compel the conclusion that Holz was endorsed for the limited purpose suggested by defendant, the prosecutor’s affidavit accompanying his motion to endorse Holz was somewhat ambiguous. In any case, Holz’ testimony was properly received. The witness’s final laboratory report was given to defense counsel on the same day it became available to the assistant prosecutor. On the morning after he received the report, defendant’s attorney privately interviewed Holz without any time limitation on the interview. He did not request a continuance to provide further evaluation time.
No Michigan cases hold that a witness need be endorsed for a particular purpose under the provisions of MCLA 767.40; MSA 28.980. Under the facts and circumstances of this case, defendant received fair notice of the purpose for which the witness was to be called.
Issue IV
Did the trial court err in not granting a mistrial as a result of the prosecutor’s fínal argument?
In closing argument, after stating, 'T would like to suggest to you kind of a theory of the facts of what transpired after that girl was left alone”, the prosecutor proceeded to reconstruct his theory of the crime based upon the circumstantial evidence and the testimony of the witnesses. During and after the argument of the prosecutor, defense counsel made no objections, nor did he request from the trial court any cautionary instructions. At the conclusion of all closing argument, defense counsel did move for a mistrial which the court denied.
The prosecutor’s theory of how the crime was perpetrated was based upon the evidence in the case. Any errors were not so prejudicial they could not have been cured by an instruction. People v Cipriano, 238 Mich 332; 213 NW 104 (1927); People v Rowls, 28 Mich App 190; 184 NW2d 332 (1970). This assignment of error is without merit.
Issue V
Is defendant entitled to a reversal of his conviction based upon a claim of instructional error?
Defense counsel initially requested the trial court to "include on voir dire a discussion with the jury relative to circumstantial evidence”. The trial court did so. Due to the informality of the voir dire instructions, the judge stated that he would include in his charge "adequate instructions that will be available to counsel prior to the time that those instructions are made to the jury in writing”. The court charged the jury with regard to a conviction upon circumstantial evidence and, after so doing, asked defense counsel if he was "satisfied with the instructions as they were presented”. Counsel indicated he was and made no further requests to charge. The final instructions of the trial court regarding circumstantial evidence, taken as a whole, adequately and fairly stated the law. We find no error.
The trial court is affirmed.
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Bashara, J.
Defendant Simmons was found guilty in a nonjury trial of the offenses of abduction and armed robbery. Defendant Clark was convicted by a jury of abduction but was found not guilty of the charge of armed robbery. From these convictions both defendants appeal.
The following facts are relevant to the disposition of this appeal. During the early morning hours of July 5, 1971, the complainant, a 70-year-old proprietor of a billiard parlor, was confronted by a man with a shotgun while in his business establishment. Defendant Simmons was identified at trial by complainant as being the man with the weapon. The complainant was instructed to call his wife and order her to bring any money in their home to the billiard hall. The complainant was driven to various locations, including an apartment building where he had previously lived.
The complainant notified the police after being released, and described his abductors. Later in the day the complaining witness, accompanied by two police officers, returned to the apartment building. They rendezvoused with four other officers. Three of the officers, without a search warrant, went to the apartment occupied by defendant Simmons. The complainant stated that he knew that was the apartment but did not know who had abducted him.
The officers went up to the apartment and, upon knocking, defendant Simmons’ father answered the door. None of the officers were in uniform. They identified themselves, asked if he had any sons, and he replied affirmatively. The officers then asked if they could speak to them. The father allowed them to enter. The officers went through the kitchen and saw defendant Simmons sleeping on a bed in a room which would normally be a dining room. However, a bed and a dresser were located there. One officer testified that they opened a curtain, entered the room, and arrested defendant Simmons, who answered the description given by the complainant. Another officer alleged that defendant Simmons’ father led the officers into the room where the defendant was found. After the arrest, the shotgun used in the crime was discovered under the bed where defendant was sleeping. A subsequent search of the room disclosed a pistol and a watch which had been taken in the robbery. These items were introduced at trial after defendant Simmons’ motion to supress was denied.
Defendant Simmons’ sole contention on appeal is that the warrantless seizure of the shotgun from his bedroom was the result of an unreasonable search and seizure.
It should be emphasized that no testimony was offered by anyone other than police officers on the question of the entry into the apartment. They indicated that the father invited them in after being asked if the officers could talk to his sons. The record also indicates that defendant Simmons’ father was present in the courtroom but did not testify.
The first question to be decided is whether the police were proper in their entrance to the apartment where the defendant was located. Defendant Simmons argues that his father could not consent to the warrantless entry without testimony showing that the father was advised that he could refuse entry of the police.
The recent United States Supreme Court case of Schneckloth v Bustamonte, 412 US 218; 93 S Ct 2041; 36 L Ed 2d 854 (1973), appears to dispose of the issue. In clear language the Court stated at pages 231 and 232 of its opinion (93 S Ct 2050; 36 L Ed 2d 865):
"For it would be thoroughly impractical to impose on the normal consent search the detailed requirements of an effective warning. Consent searches are part of the standard investigatory techniques of law enforcement agencies. They normally occur on the highway, or in a person’s home or office* and under informal and unstructured conditions. The circumstances that prompt the initial request to search may develop quickly or be a logical extension of investigative police questioning. The police may seek to investigate further suspicious circumstances or to follow up leads developed in questioning persons at the scene of a crime.”
In light of the foregoing, we hold that the police officers were properly within the residence of defendant Simmons’ father.
The question of whether the police officers were properly within the room where defendant Simmons was allegedly sleeping is not so easy to determine.
This Court has previously held, in People v Flowers, 23 Mich App 523; 179 NW2d 56 (1970), that a parent could not consent to a search of a son’s bedroom. In People v Overall, 7 Mich App 153; 151 NW2d 225 (1967), we held that a grandmother could not authorize the search of a grandson’s bedroom. These cases appear to emanate from the rule enunciated in Stoner v California, 376 US 483; 84 S Ct 889; 11 L Ed 2d 856 (1964), that where a party has a right to privacy in a particular area of a building (in that case a hotel room), that right could not be waived by anyone save the one asserting the right.
However, this rule is not without exception. People v Bunker, 22 Mich App 396; 177 NW2d 644 (1970), stands for the proposition that parents have the right to consent to a search of premises open to all members of the family. It is equally clear that once legally upon the premises, if defendant Simmons was in view of the police officers having his description, the arrest and resulting search were proper.
There appears to be some question of whether the police themselves went to the room where the defendant was located, or whether the elder Mr. Simmons led them there. The lower court record, however, clearly reveals that before any search was conducted, defendant Simmons was recognized and arrested. We again refer to the compelling language of approval in Schneckloth v Bustamonte, supra, that:
"[t]he circumstances that prompt the initial request may develop quickly or be a logical extension of investigative police questioning.”
There is no doubt that the area involved was the scene of at least a portion of the crime committed. We therefore affirm the trial judge’s ruling that the objects found as a result of the search after arrest were properly admissible into evidence. Chimel v California, 395 US 752; 87 S Ct 2034; 23 L Ed 2d 685 (1969); People v Frank Smith, 43 Mich App 400; 204 NW2d 308 (1972).
Defendant Clark finally alleges that error occurred when the jury was not privy to certain testimony which bore upon the credibility of the prosecution’s main witness. The attorney for defendant Simmons was attempting to impeach the complaining witness as to his identification of defendant Lawrence Clark. Testimony at the preliminary examination raised the possibility that the complainant may have mistaken defendant Lawrence Clark for one Thomas Clark.
The trial court indicated that the jury should not hear the colloquy and that it was only admissible for impeachment purposes as it applied to defendant Simmons’ case. In absence of the jury, the court questioned the witness as to whether he had identified Thomas Clark who had had his case dismissed. The witness answered affirmatively. Defendant Clark’s attorney did not object to this procedure. The jury was returned and defendant Clark’s attorney engaged in a brief recross-examination of the witness as to his mistaken identity of Thomas Clark. The complaining witness did, however, positively identify defendant Lawrence Clark as one of those participating in the abduction.
No objection was voiced to the excusing of the jury. Recapitulation of what transpired was reviewed for the jury by defendant’s own attorney. We therefore find that this issue was not preserved for review and is not reversible error.
Affirmed.
All concurred. | [
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] |
T. M. Burns, J.
Defendant was charged with first-degree murder. After a six-day jury trial, he was convicted of the lesser included offense of manslaughter. Defendant was subsequently sentenced to a term of from 7-1/2 to 15 years imprisonment on July 14, 1970. Upon a motion by the defendant, we granted leave to appeal in February of 1973.
The facts of the case are highly complex and stem from an alleged armed robbery perpetrated late in the evening of August 26, 1969, an alleged fire-bombing incident occurring in the early morning hours of August 27, 1969, and an alleged exchange of gunshots in the early afternoon of August 27, 1969. The evidence and testimony presented at trial was conflicting, and a detailed recital is required for a proper disposition of the questions raised by the defendant.
At trial a 16-year-old juvenile and friend of the defendant testified that at approximately 11 p.m. on August 26, 1969, he went to the defendant’s home for a visit. The defendant, his wife, and children were present. The youth had subsequently been convicted of an armed robbery committed at the defendant’s home on the evening of August 26, 1969. In response to the prosecutor’s questions concerning the robbery, the witness gave answers which indicated the robbery did not take place. The jury was excused, the prosecution told the trial court of the juvenile’s robbery conviction, and the witness was then declared hostile. On cross-examination by the prosecutor after the jury returned, the witness testified that on the night of August 26, 1969, one Ray accompanied by two men named Powley and Lichtenberg arrived at the defendant’s home. The youth explained that when the men entered the residence he ordered them at gunpoint to lie on the floor and relieved them of their money. At the witness’s direction, the trio crawled out of the house on their hands and knees, then walked away. The witness admitted that he had been convicted of the armed robbery in juvenile court but stated that the defendant was not in the room at the time of the robbery and that the defendant knew nothing about it. Later that same evening an individual identified by the witness as Brown arrived at the defendant’s residence. Shortly thereafter at about 2 a.m., the defendant’s house was fire-bombed. The juvenile continued his testimony and stated that he remained at the defendant’s house through the night and into the next afternoon when an automobile was observed driving slowly past the house. There were four passengers. The vehicle backed up and stopped in front of the house. At this point either Brown or the defendant announced that someone in the car had a shotgun. Defendant went into the bedroom, procured an M-l .30-caliber rifle, loaded it, went to the telephone, called the police, put the phone down, and went to the door. There was a shotgun blast from outside. Almost immediately thereafter a shot was fired from inside the house. Defendant’s wife and children were not in the house at the time.
A victim of the armed robbery, Martin Ray, testified that as he and the other two individuals entered the defendant’s home both the juvenile and the defendant pulled guns and committed the robbery. In addition he stated that while he was lying on the floor during the robbery the defendant approached, put a gun in his face, and warned him not to try anything or he would shoot the three of them for trespassing. After the victims left the defendant’s home, they telephoned the defendant and demanded their money back. The defendant allegedly responded that he neither knew them nor knew what they were talking about. Later that evening the witness related that he and a friend returned to the defendant’s home and threw two one-quart gasoline fire bombs at the dwelling for the purpose of frightening the defendant into returning the money. The following day between noon and 1 p.m., the witness along with Powley, one Lockhart, and another person later identified as David Rivas, drove to the defendant’s house. Rivas was armed with a 16-gauge sawed-off shotgun. The witness stated that he could see the defendant standing in the doorway and shouted at the defendant for a return of the money he allegedly had taken the night before. Upon receiving no response, they started to drive slowly away and Rivas, at the witness’s command, fired the shotgun at the defendant’s house. Immediately afterwards Rivas exclaimed that he had been shot. The witness stated the two shots were almost simultaneous.
The second victim of the armed robbery, William Powley, took the stand and testified as follows: On August 26, 1969, between 10 and 11 p.m., he accompanied two others to the defendant’s home. They were invited into the house and told to lie on the floor. It was too dark to ascertain who gave the order; however, the witness explained that the robber spoke with a deep southern accent. It should be noted at this juncture that the record unfortunately does not reflect whether either the defendant or the juvenile, both of whom testified at trial, spoke with a southern accent. The witness also explained that Litchenberg, a member of the victimized trio, had directed them to the defendant’s residence. Other than the three victims, the witness stated there were two other persons in the house. The next afternoon the witness accompanied by Ray and two others unconnected with the robbery drove to the defendant’s house. At the time of the exchange of gunfire between the occupants of the auto and the defendant, the witness stated the auto was stationary and started to move after Rivas said he was shot.
Another witness, Robert Lockhart, testified that although he was not involved in the armed robbery he accompanied Ray to the defendant’s home for the purpose of fire-bombing the defendant’s house in the early morning hours of August 27, 1969. On the afternoon of August 27, 1969, he drove Ray, Rivas, and Powley to the defendant’s dwelling. The car pulled up in front of the house and Ray shouted for the occupant to bring out some money. An individual in the house asked "Who is it?” and Ray answered "It’s Sharkey”. Approximately five minutes elapsed, then at Ray’s command Rivas shot at the house. The witness, who was driving the auto, quickly accelerated. A shot rang out, and Rivas announced he had been shot and asked to be taken to the hospital. The witness opined that the car only moved a few feet between the time of the first and second gunshot.
In addition William Brown, who had arrived at the defendant’s home shortly after the alleged armed robbery and who remained on the premises until the next afternoon, stated that he was at the defendant’s house only a few minutes before it was fire-bombed and that during the bombing episode he heard a gunshot from the front room of the dwelling. The following afternoon he heard someone shouting from the street. Defendant told Brown and the juvenile to go to the dining room, pick up the telephone, and hold on to it. Brown stated that he heard a gunshot from outside and two or three minutes later a second gunshot from inside the dwelling. After the shotgun blast he heard the vehicle occupied by Ray, Powley, Lock-hart, and Rivas accelerate. He then telephoned the Hazel Park police.
At trial defendant interposed the defenses of accident and self-defense. Defendant also took the stand in his own behalf. He denied any knowledge of an armed robbery at his residence. During the fire bombing incident defendant stated that he moved his wife and children to safety, grabbed his rifle, ran to the front room, tripped, and the gun discharged. The next morning he sent his wife and children away to a relative’s home. When the automobile stopped in front of his house the afternoon of the 27th, he explained that he telephoned the police, told them that an auto was parked in front of his house, and that one of the men in the vehicle was armed with a sawed-off shotgun. He left the telephone and went to the door to get a better description of the vehicle. Defendant was carrying a rifle at the time. He related that as he appeared in the doorway, he was fired upon. He jumped back and the rifle discharged. Defendant estimated that only a single second elapsed between the two gunshots.
A neighbor living three doors away from the defendant testified that on the afternoon of August 27 she heard two gunshots, the first louder than the second and very close together. She also stated that the auto parked in front of the defendant’s home moved after the second shot and not before.
The description of the vehicle carrying the quartet of gunmen was broadcast to police in the vicinity. At 1:20 p.m. an officer in a cruiser spotted the vehicle in question and pulled it over. Ray exited the vehicle and told the officer that one of the passengers had been shot. The officer approached the vehicle and discovered Rivas prostrate on the back seat suffering from a bullet wound in the back. An ambulance was immediately summoned, however, Rivas was pronounced dead on arrival at the hospital. After an examination of the vehicle, the police observed an oval-shaped bullet hole on the driver’s side between the rear door and the rear end of the auto. In addition the police discovered a sawed-off shotgun in the vehicle.
On appeal defendant raises numerous allegations of error which we will discuss and decide in the manner presented below.
I
First defendant argues that the evidence adduced at trial was insufficient to support a charge of first-degree murder and that as a consequence the trial court erred by instructing the jury on this offense. See People v Marshall, 366 Mich 498; 115 NW2d 309 (1962).
Aside from instances wherein a killing is committed by poison, lying in wait, or in the perpetration or attempt to perpetrate certain enumerated crimes, the prosecution, where first-degree murder is charged, must prove that the accused killed another willfully, deliberately, with premeditation and with malice aforethought. MCLA 750.316; MSA 28.548, People v Morrin, 31 Mich App 301; 187 NW2d 434 (1971), leave to appeal denied 385 Mich 775 (1971).
Premeditation and deliberation connote a willfulness and are defined as follows:
"To premeditate is to think about beforehand; to deliberate is to measure and evaluate the major facets of a choice or problem. As a number of courts have pointed out, premeditation and deliberation characterize a thought process undisturbed by hot blood. While the minimum time necessary to exercise this process is incapable of exact determination, the interval between initial thought and ultimate action should be long enough to afford a reasonable man time to subject the nature of his response to a 'second look’.” People v Morrin, supra, pp 329-330; 187 NW2d p 449.
Premeditation and deliberation may be reasonably inferred from all of the facts and circumstances surrounding a homicide. People v Morrin, supra. However where there is an absence of any evidence pertaining to premeditation or deliberation, it is improper for the trier of fact to consider a charge of first-degree murder. People v Meier, 47 Mich App 179; 209 NW2d 311 (1973). The element of malice aforethought may be inferred where an act of killing has been proven. People v Morrin, supra.
The facts and circumstances of the present case embody a series of interrelated transactions beginning with the alleged armed robbery of three men at the defendant’s home on the evening of August 26, 1969, and culminating with the death of David Rivas, the following afternoon. The evidence produced at trial was conflicting. However it is not our task to weigh the credibility of this evidence as would a jury, but rather our duty is to determine whether there was any evidence produced at trial to support a charge of first-degree murder.
The testimony adduced at trial pertaining to the defendant’s deliberation and premeditation may be capsulized as follows: The defendant during the course of the armed robbery at his home told the victims he could kill them for trespassing. On the afternoon following the robbery a vehicle containing four men drove up in front of the defendant’s home. Someone in the defendant’s house stated that one of the individuals in the auto had a shotgun. The defendant procured a rifle. A passenger in the vehicle shouted instructions to the defendant to return the money taken on the previous evening. Defendant appeared in the doorway. A shotgun blast from the vehicle was directed at the defendant’s residence. One witness who was in the defendant’s home at the time testified that there was a lapse of from two to three minutes before the defendant returned fire. The vehicle was accelerating away from the defendant’s home at the time he fired the fatal shot. From this evidence it is our opinion that it would have been possible for a jury to reasonably conclude that since there was a two or three minute interval between the shots and inasmuch as the vehicle from which the shotgun blast was fired was driving away from the defendant’s residence, there was sufficient time for the defendant to form the intent to kill and an opportunity for the defendant to reconsider the matter and not fire the rifle. Therefore sufficient evidence was presented from which a jury could reasonably have inferred that the defendant acted willfully, deliberately and with premeditation.
That there was a killing is undisputed. Accordingly, it would have been permissible for a jury to have found that the defendant acted with malice aforethought. People v Morrin, supra.
In view of the foregoing, we hold that there was evidence presented at trial which, if believed by the jury, was sufficient to find that the defendant committed the killing in question willfully, deliberately, with premeditation and with malice aforethought. Consequently, the trial court did not err by submitting the first-degree murder charge to the jury.
II
Next defendant similarly contends that there was insufficient evidence presented at trial to support a charge of second-degree murder and that as a result the trial court erred by instructing the jury in this offense.
To justify the submission of a second-degree murder charge to the trier of fact there must be evidence that there was a killing, that the accused killed with malice aforethought but without premeditation and deliberation, that the accused formed the intent to kill upon a sudden provocation prior to and accompanying the act, and that such provocation did not foreclose the exercise of reason and thus reduce the crime from murder to manslaughter. People v Dawson, 29 Mich App 488; 185 NW2d 581 (1971), quoting 3 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 1639, pp 1973-1974; MCLA 750.317, MSA 28.549.
As previously recounted it is not disputed that the defendant killed David Rivas. As a result it would have been permissible for a jury to find that the defendant acted with malice aforethought. People v Morrin, supra. There was testimony that the defendant threatened to kill the three robbery victims the preceding evening. It is immaterial that the defendant did not kill one of the victims but rather killed a passenger in a vehicle who was accompanying a victim back to the scene of the alleged armed robbery. People v Hodges, 196 Mich 546; 162 NW 966 (1917). There was evidence of a sudden provocation, i.e. the shotgun blast directed towards the defendant’s residence. From testimony by witness Brown, who was in the defendant’s dwelling at the time the shots were fired, that two or three minutes elapsed between the shotgun blast and the defendant’s rifle shot, the jury could have reasonably determined that the shotgun blast did not foreclose the exercise of defendant’s reason and that the defendant intentionally aimed the rifle at the auto intending to kill the occupants. Therefore we find that evidence was presented which, if believed by a jury, would support a charge of second-degree murder. Accordingly, the trial court did not err by instructing the jury on second-degree murder.
Ill
In response to the first-degree murder charge brought by the prosecution, defendant claimed he acted in self-defense. It is the defendant’s position on appeal that the trial court erred, under the facts of the case, by refusing to grant defense counsel’s motion for a dismissal of the charges on this basis. Defendant’s argument requires only brief comment.
Whether or not an accused acted in self-defense is a question of fact for the jury to determine. The sole question for the jury where the defendant interposes a claim of self-defense is whether "the accused, under all of the circumstances of the assault as it appeared to him, honestly believe[d] that he was in danger of his life, or suffering great bodily harm, and that it was necessary for him to do what he did in order to save himself from such apparent threatened danger”. 1 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 26, pp 47-48. Moreover, where there is evidence introduced at trial which would justify the jury’s verdict, that verdict is final. People v Harper, 43 Mich App 500, 509; 204 NW2d 263, 268-269 (1972), leave to appeal denied 389 Mich 759 (1973).
It is patent from the guilty verdict that the jury did not believe the defendant acted in self-defense. Thus our question narrows to whether there was evidence presented at trial to support that verdict. A review of the record discloses that there was testimony from one witness to the effect that the defendant waited from two to three minutes after the shotgun blast before returning fire, none of the passengers alighted from the automobile and came towards defendant’s home, and that defendant did not discharge his rifle until after the vehicle from which the shotgun blast came was driving away. From this evidence a jury could reasonably conclude, as it apparently did, that at the time defendant fired the rifle, it was not necessary to do so in order to save himself from the gunman.
We hold, therefore, that there was evidence to support the jury’s verdict and that the trial court did not err by referring the question of defendant’s self-defense to the jury.
IV
Defendant next asserts that the trial court reversibly erred by denying a defense motion to exclude any evidence and testimony concerning the alleged armed robbery. Defendant contends that the prejudicial effect of this evidence far outweighed its probative value.
Where as here a defendant is charged with first-degree murder, the prior relationship between the parties involved and the facts and circumstances surrounding the crime are material in determining whether the accused killed with deliberation and premeditation. People v Morrin, supra, People v Meier, supra. The defense of accident interposed by the defendant would also permit the introduction into evidence of any prior act or like acts on the part of the defendant tending to show a lack of accident, notwithstanding the fact such proofs would reveal the commission of a crime by the defendant. MCLA 768.27; MSA 28.1050.
As noted earlier the alleged armed robbery was closely intertwined with the subsequent shooting. The testimony concerning the armed robbery revealed the character of the relationship among those involved in the shoot-out. The threat allegedly made by the defendant during the course of the robbery was, in addition, indicative of the defendant’s state of mind and bore upon the question of whether the shooting was an accident. Furthermore the trial court carefully and correctly instructed the jury on the proper use of such evidence.
We hold, therefore, that the trial court did not err by denying defense counsel’s motion to exclude evidence of an armed robbery and that the prejudicial effect of such evidence did not outweigh its probative value.
V
Defendant complains that the trial court reversibly erred by permitting the prosecution to impeach the credibility of the juvenile witness by reference to his juvenile record.
The juvenile witness testified he was present in the defendant’s home during the armed robbery, fire bombing, and subsequent shooting. The juvenile was, therefore, a res gestae witness and subject to impeachment by the prosecution. MCLA 767.40a; MSA 28.980(1).
In response to a question by the prosecutor, the witness admitted being convicted in juvenile court for the armed robbery allegedly perpetrated at the defendant’s dwelling.
We find no error. A witness in a criminal case, who is not himself a defendant, may be impeached on the basis of a juvenile record. People v Glover; 47 Mich App 454; 209 NW2d 533 (1973); People v Basemore, 36 Mich App 256; 193 NW2d 335 (1971); People v Davies, 34 Mich App 19; 190 NW2d 694 (1971).
VI
During opening argument the prosecutor stated: "I believe in the way of defense [sic] [the defendant] will claim self-defense”. Defendant argues that the foregoing statement, was outside the bounds of a proper opening statement, highly prejudicial, and forced the employment of a claim of self-defense.
No objection was voiced to the prosecutor’s statement concerning self-defense. It is axiomatic that absent manifest prejudice, we will not entertain allegations of prejudicial trial conduct unless an objection was raised thereto below. Inasmuch as there was no objection, our review is limited to ascertaining whether the statement complained of was unduly prejudicial to the defendant.
The scope of opening statements is governed by GCR 1963, 507.1 which reads in pertinent part:
"Opening Statements. Before the introduction of any evidence, the attorney for the party who is to commence the evidence shall make a full and fair statement of his case and the facts he intends to prove.”
In People v Montague, 71 Mich 447; 39 NW 585 (1888), the prosecution was criticized for interjecting inflammatory statements and an imaginary proposed defense during the course of its opening argument.
Clearly the prosecution’s statement in the instant case can in no manner be classified as inflammatory. Although we recognize the interjection of an imaginary defense during the people’s opening argument would in some cases prejudice the defendant by forcing defense counsel to employ such a defense, such is not the case here.
After the prosecution’s opening argument, defense counsel made a spirited opening argument to the jury and argued at length that the defendant fired in self-defense and that the killing was an accident. The prosecutor could not with certainty foretell that defense counsel would employ a claim of self-defense. However since the people’s proofs were bound to show that a shotgun blast was directed at the defendant’s home, defendant’s claim of self-defense would immediately spring to mind. The practice of the prosecutor outlining an accused’s defense during opening argument is fraught with many dangers and should not be encouraged. However under the facts of this case we find that the prosecution’s statement concerning the employment of self-defense neither interjected an imaginary defense nor so tainted the entire proceedings as to require a new trial.
VII
Finally defendant argues that it was reversible error for the prosecutor to cross-examine the defendant by framing a line of questions in terms of the defendant’s assaultive nature.
The colloquy at trial between the prosecutor and the defendant concerning defendant’s assaultive nature reads as follows:
”Q. (by Mr. Murphy, continuing): Would you describe yourself as a person having an assaultive nature?
"A. No.
"Q. Directing your attention to October twenty fifth in the year 1964, were you then convicted with an assault with intent to have carnal knowledge of a female minor?
"A. Yes, I was.
"Q. Directing your attention to 9-2-1965, one year later, were you then convicted with an assault with intent to commit rape?
’A. No, it was carnal knowledge that I was convicted of.
"Q. That was on 10-26-64, is that correct?
"A. That I was convicted?
”Q. Yes.
”A. I believe it was ’65, August of ’65 or September.
”Q. Let me rephrase my question. On October 26th in the year 1964 were you convicted of assault with intent to have carnal knowledge of a female minor?
"A. No.
"Q. You were not?
"A. I believe it was ’65 that I was convicted. ’64 I was arrested.
"Q. In 9-2-65 were you convicted. with assault to commit rape?
'A. No.
"Q. Your name is George Vail, isn’t it?
’A. 9-2? Yes, it must have been 9-2, yes
”Q. You remember now?
”A. 9-2, yes.
"Q. You’re not an assaultive person, is that correct?
'A. No, I am not.”
Evidence that a defendant has committed other crimes is not admissible for the purpose of showing that the accused was more likely to have perpetrated the crime charged. 1 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 446, p 549. However, evidence that a defendant has committed prior crimes is admissible for the purpose of establishing, among other things, lack of an accident. MCLA 768.27; MSA 28.1050.
In the present case defendant proffered the defense of accident. Thus the question of whether the shooting was an accident was material. After a thorough review of the record and the testimony quoted above, we are persuaded that the evidence of defendant’s prior convictions was introduced for the purpose of showing a lack of accident on the defendant’s part, and was not introduced for the improper purpose of establishing that the defendant was more likely to have committed the crime charged.
For all of the reasons delineated above, defendant’s conviction is affirmed.
All concurred.
MCLA 750.316; MSA 28.548.
MCLA 750.321; MSA 28.553.
The specified crimes are: arson, rape, robbery, burglary, larceny of any kind, extortion or kidnapping. MCLA 750.316; MSA 28.548.
The trial court’s instructions on this point read as follows: "There’s also been testimony regarding an alleged robbery armed and an alleged fire bombing and arson. The purpose in allowing such evidence is to assure you all the pertinent information and evidence available that you could comprehend the entire picture; however, let me caution you that we are not trying here a case of robbery armed or arson. There’s no need that these offenses, if any, be proven. You may, however, consider that testimony in evidence only insofar as it relates to the state of mind of the defendant’s intent, motive, or purpose; both as it relates to the people’s case and to his own defense.” | [
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V. J. Brennan, P. J.
Judge Levin in his dissent, we believe, has set up a standard which encompasses all gun-in-car cases and because of that reasoning it seems every situation where guns are found under the seat or on the floor and nobody claims them (and why should they) will require dismissal. And this standard we cannot agree to.
The defendant, Robert Early Smith, and three other persons were charged with committing the offense of carrying a concealed weapon in a motor vehicle. MCLA 750. 227; MSA 28.424. After the preliminary examination, the defendants including Smith were bound over for trial. Motions to quash the information were denied. Smith was granted leave to take an interlocutory appeal.
Detroit police officer Ward, the principal witness at the examination, testified that he and his partner observed a Ford Econoline van, in which Smith was a passenger, make several erratic U-turns in front of traffic. The four defendants were placed under arrest after officer Ward saw through the right window what he believed to be the stock of a rifle, opened the door, and grabbed an M-l rifle from underneath the second seat. The defendants had not moved when the officers approached.
The van had three seats. Codefendant Gaut was driving. Codefendant Turner was seated next to him in the right front passenger seat. Codefendant Williams was occupying the second seat alone. The gun was on the floor in front of the second seat between the seat and Williams’ legs. Defendant Smith was stretched out on the third seat with his feet up on the seat.
A cartridge belt and clips containing ammunition were found in the front seat between co-defendants Gaut and Turner.
The first question is whether, under the concealed weapons statute, supra, this defendant’s presence in this vehicle under these circumstances constitutes sufficient evidence to bind him over for trial. The relevant statute provides:
"Sec. 5. If it shall appear that an offense not cognizable by a justice of the peace has been committed, and that there is probable cause to believe the prisoner guilty thereof, and if the offense be bailable by the magistrate, and the prisoner offer sufficient bail, it shall be taken and the prisoner discharged; but if no sufficient bail be offered, or the offense be not bailable by the magistrate, the prisoner shall be committed to jail for trial.” (Emphasis supplied.) MCLA 766.5; MSA 28.923.
At this stage, the people must first establish each element, not prove each beyond a reasonable doubt. In order for the examining magistrate to reach that conclusion, he must necessarily have proof before him of all of the elements of the offense. That is plain on the face of the statute. A holding to that effect should be based on the statute, not on the cases cited in Judge Levin’s dissent. People v Randall, 42 Mich App 187; 201 NW2d 292 (1972), does make such a holding, but the cases it is based on (People v Kelsch, 16 Mich App 244; 167 NW2d 777 [1969], and People v Barron, 381 Mich 421; 163 NW2d 219 [1968]) both deal with a defendant’s challenge to the sufficiency of the evidence to convict, not to bind over. People v Bellanca, 386 Mich 708; 194 NW2d 863 (1972), just reiterates the statutory standard.
Assuming for the moment that the rifle falls within the meaning of the statute, it is clear that someone was carrying it in violation of the statute. There is abundant authority that we review the examining magistrate only for abuse of discretion, People v Paille #2, 383 Mich 621; 178 NW2d 465 (1970). We find no such abuse here. The standard of proof for binding over isn’t as high as conviction, People v O’Leary, 6 Mich App 115; 148 NW2d 516 (1967). In Paille #2, supra, at 626; 178 NW2d at 467, the Court defined probable cause as follows:
"In People v Dellabonda, 265 Mich 486 [251 NW 594, 595] (1933), the Court at p 490, stated:
" 'To authorize the examining magistrate to bind appellant over for trial there must have been good reason to believe appellant guilty of the crime charged. Some cases hold a prima facie case against the accused must be made out. This Court has not deñned what constitutes probable cause, leaving each case to be determined upon its facts. Bouvier defines probable cause as, "A reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that a person accused is guilty of the offense with which he is charged. ” 3 Bouvier’s Law Dictionary (Rawle’s 3d Rev), p 2728.’ ” (Emphasis added.)
Thus, on this point we disagree with Judge Levin on the facts. An M-l is not an inconspicuous article; it’s 43 inches long, and, since it’s an infantry weapon, quite heavy, so that it could also be used as a club. It was found partially under the second seat, and defendant was lying on the third seat. While, if he were especially non-observant, he could have missed it, it strains the imagination. That strained imagination should leave little doubt that the magistrate did not abuse his discretion. We should, however, be careful to say that this isn’t enough to convict — a strained imagination still leaves room for reasonable doubt.
Is a 43-inch M-l a "dangerous weapon” within the meaning of MCLA 750.227, MSA 28.424, which provides as follows:
"Sec. 227. Carrying concealed weapons — Any person who shall carry a dagger, dirk, stiletto or other dangerous weapon except hunting knives adapted and carried as such, concealed on or about his person, or whether concealed or otherwise in any vehicle operated or occupied by him, except in his dwelling house or place of business or on other land possessed by him; and any person who shall carry a pistol concealed on or about his person, or, whether concealed or otherwise, in any vehicle operated or occupied by him, except in his dwelling house or place of business or on other land possessed by him, without a license to so carry said pistol as provided by law, shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 5 years, or by fine of not more than 2,500 dollars.” (Emphasis added.)
We can, if we choose, dive into the statute and examine it piece by piece making cross references to not only statutes but to statute-interpreting cases. However, we choose not to do so because we have no doubt that the Legislature, when they said "dangerous weapon”, in fact meant dangerous weapon; and we have no difficulty at all placing M-1 rifles in the dangerous weapon category.
We affirm and remand to the trial court for trial.
O’Hara, J., concurred. | [
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Per Curiam.
Defendants appeal from an order of the Wayne County Circuit Court compelling them to proceed to arbitration of a dispute regarding plaintiffs discharge from employment with defendant city. The city challenges the determination of the trial judge on three grounds.
The defendants’ first argument, that they are not bound in any fashion by an order of the circuit court in a prior case to which they were not a party, is quite correct; they should not be bound thereby. Unfortunately, that prior decision was totally irrelevant to the disposition of the case at hand. The trial court disposed of the present case on the basis of the collective bargaining agreement; defendants are certainly bound thereby.
Defendants’ remaining arguments are that plaintiff did not timely or exhaustively pursue his pre-arbitration remedies. These arguments are both devoid of merit. The plaintiff cannot, on these facts, be compelled to comply with the pre-arbitration procedures. Plaintiffs complaint is against an action taken by the mayor of the City of Dearborn Heights; the mayor of the City of Dearborn Heights is the person to whom plaintiff would ultimately have to appeal in the course of prearbitration proceedings. As the trial judge concluded, requiring the plaintiff to follow through with such proceedings "would be futile, and a waste of everyone’s time and money”. Also, since the collective bargaining agreement does not specify a time limit in which arbitration must be sought, a reasonable time will be read into the agreement. We find no error in the trial court’s holding that, under all the facts of the case, the plaintiff did proceed within a reasonable time.
Affirmed. | [
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Long, J.
On July 15, 1891, the probate court of Wayne county made an order assigning the personal estate of Henry P. Pulling, deceased. Jeane W. Pulling, the widow, was given the household furniture, $200 of other personal property, and one-third of the rest of the personal estate, until ■such sum should amount to $5,000, and one-half of the remainder of such one-third. The balance of the estate was paid to the appellants here, who are the children by a former marriage, and heirs at law of the deceased. From this order ■an appeal was taken by the heirs at law to the circuit court for Wayne county, and, upon a hearing there, the decree of ■distribution was affirmed by direction of the court. The heirs at law bring the case here on error.
It appears that Dr. Pulling died.in the city of Detroit on July 15, 1890. He was possessed at the time of his death of about $88,000 of personal estate, including land contracts, and $40,000 of real estate, exclusive of his homestead in Detroit. At the time of his marriage with Jeane W. Pulling, Dr. Pulling was about 75 years of age, and his wife about 40. . The marriage took place April 26, 1890. Prior to the marriage the deceased obtained from Jeane W. the agreements which are set out in Pulling v. Durfee, 85 Mich. 34. After the marriage, Dr. Pulling executed a deed conveying to his wife a life interest in the homestead occupied by him in Detroit, valued at $10,000; and he also gave her a bill of sale for life ■of the furniture therein, valued at about $1,500. Mrs. Pulling occupies the homestead. Deceased left a will, which was admitted to probate, but no provision whatever was made by it for the widow. The contention here on the part of the heirs is that these antenuptial agreements are valid and binding upon the widow, and that, by such agreements, she has released all claims upon the estate of her husband. The same claim was made in Pulling v. Durfee, supra, and that by the terms of these agreements she was not entitled to an allowance pending the settlement of the estate. We granted a mandamus in that ease, directing the judge of probate to make proper allowance to her.
The sole consideration for the agreement, by which it is claimed the widow has barred her right, is the sum of $5 and love and affection. Were the agreements signed by the widow the sole evidence of what the understanding between the parties actually was, there might be some force in the contention; but on the very day of the marriage (April 26, 1890) the deceased made a writing, under his hand, which throws some light upon the transaction, and shows that the whole agreement and understanding between the parties • was not confined to the papers signed by Mrs. Pulling. It not only shows that fact, but also the motives which actuated the parties in making any agreement whatever. It is evident that had Dr. Pulling lived for any length of time after the marriage he would have made some other and better provision for his widow, and that it was his intent to do so. The letters of Dr. Pulling, which are in evidence in the case, show that he had considered the question of his marriage with Mrs. Pulling for a considerable length of time, and that it was a constant source of trouble to-him as to how his daughters might view it. He apparently had a high regard for their judgment, and desired so to conduct his affairs that they could attach no blame to him; but at the same time he desired, as he expressed in the writing left by him, to make ample provision for his widow at his death. As one step in that direction, he gave her a life-estate in the homestead and the furniture. He, of course, recognized the fact that, in the event of his death, there would be no income from that by which she could have any support whatever; but, as he said, “he expected to provide for her future consistent with his ability in a financial wajr.” He asserts that it was understood between himself and wife that he should . do so.
It is apparent, from all the writings, that the agreements signed by the wife were intended to allay any feeling which his daughters might have against the marriage, and it is evident that it never was understood between them that the wife was not to share in the estate.
The antenuptial writings, if they are to have the force contended for, not only cut the widow off from all participation in the personal estate, but also operate to bar her right of dower. How. Stat. § 5746, provides how a woman may be barred of her dower. It reads:
“ A woman may also be barred of her dower in all the lands ■of her husband, by a jointure settled on her with her assent before the marriage, provided such jointure consists of a freehold estate in lands for the life of the wife at least, to take effect in possession or profit immediately on the death of her husband.”
No such jointure was settled on Mrs. Pulling by these agreements, the only actual consideration paid to bar her dower in $40,000 of real estate, and for the release of her claim upon $88,000 of personal property, being $5. Certainly the terms of this statute were not complied with to bar her dower. Section 5747 provides that—
“ Such assent shall be expressed, if the woman be of fall age, by her becoming a party to the conveyance by which it is settled, and, if she be under age, by her joining with her father or guardian in such conveyance.”
And by the next section it is provided:
“ Any pecuniary provision that shall be made for the benefit of an intended wife, and in lieu of dower, shall, if assented to, as provided in the preceding section, bar her right of dower in all the lands of her husband.”
By the common law, no provision or settlement made by a a man before his marriage in favor of his future wife could bar dower. Vincent v. Spooner, 2 Cush. 467. The reason of this rule of the common law was that dower, being a freehold estate, by a maxim of the common law could not be' barred by a collateral satisfaction. Hastings v. Dickinson, 7 Mass. 153; Logan v. Phillips, 18 Mo. 22; Jones v. Powelly, 6 Johns. Ch. 196; Murphy v. Murphy, 12 Ohio St. 407. Neither at the common law nor under the statute was this-contract sufficient to bar dower.
Referring to the letter left by Dr. Pulling, it is clear that it was the intent of the parties that the effect of the agreement signed by Mrs. Pulling, if any effect was to be given to> it at all, was to bar her dower, so that, as he expressed it, “ in the final settlement of the estate her dower right would not interfere with or prevent a distribution of the property during her life.” This was one of the purposes, and apparently the-, main purpose, of the agreement, except, as shown by his. letters, to satisfy his daughters. From all these documents, ’ and the letters written by Dr. Pulling, we are unable to say that it was the intent of the parties that the widow should not receive her -distributive share of the personalty. It does not seem probable, in view of the repeated expressions, of the doctor in his letters and the writings, that it was ever understood that the widow, in case of the death of the husband, was to be deprived of all participation in the estate. We think that was not the intention of the parties, and that to-enforce such a contract would be to open the door in that class of cases to the grossest fraud. Here was personalty to the amount of $88,000, and an attempt is made to enforce an agreement which, to say the least, is ambiguous when all the papers are taken together, and, by it, to cut off the widow without a dollar.
The language of Mr. Justice Sharswood in Kline v. Kline; 57 Penn. St. 120, may well be applied to the present case. There an attempt was made to enforce an antenuptial agreement. The court below charged:
“The woman was bound'to exercise her judgment, and take advantage of the opportunity that existed to obtain information; if she did not do so, it was her own fault. The parties were dealing at arm’s length. He was not bound to disclose to her the amount or value of his property.”
The learned justice, remarking upon this, said:
“There is, perhaps, no relation of life in which more unbounded confidence is reposed than in that existing between parties who are betrothed to each other. Especially does the woman place the most implicit trust in the truth and affection of him in whose keeping she is about to deposit the happiness of her future life. From him she has no secrets; she believes he has none from her. To consider such persons as in the same category with buyers and sellers, and to say that they are dealing at arm’s length, we think is a mistake. * * * If, indeed, this agreement was intended to debar the wife of all future right to any share of her husband’s estate in case she survived him, it was a most unequal and unjust bargain. * * * It bestows on her a portion of the house for life, with her own household goods which she owned before marriage, and the small annuity of $40 a year, or about eleven cents a day, to feed and clothe her, to find medical attendance and nursing for-her when sick, and to bury her decently when she died. If, as has happened, she should find herself a solitary widow, without children, at the advanced age of seventy,, such a pittance leaves her to be an object of private-charity or public relief. To say that she was bound, when the contract was proposed, to exercise her judgment; that she ought to have taken advantage of the-opportunity that existed to obtain information; and that,, if she did not do so, it was her own fault, — is to suggest what would be revolting to all the better feelings of woman’s nature. To have instituted inquiries into the property and fortune of her betrothed would have indicated that she was actuated by selfish and interested motives. She shrank back from the thought of asking a single question. She executed the paper without hesitation and without inquiry. She believed that he would propose nothing but what was just, and she had a right to exercise that confidence.”
In the present case Mrs. Pulling signed a paper saying she did not care to know the value of the estate. This is explained by the statement in the paper left by the doctor that “she confided in him entirely about doing for her what was just and proper.”
Under the circumstances, the probate and circuit courts were right in their interpretation of the contract, and in awarding to the widow her distributive share of the estate.
The judgment of the probate and circuit courts must be affirmed, with costs. It will be so certified to the probate court of Wayne county.
The other Justices concurred. | [
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Grant, J.
Plaintiff recovered damages for injuries received in falling through, a defective cross-walk of the defendant city.
The duty alleged in the declaration is—
“ To use reasonable care that said street and said crosswalk were kept and maintained in a suitable condition for travel by the public; and, in case of paving or repairing said street, * * * to take all proper precautions to warn the public thereof by barriers and lights.”
The violation of this duty is alleged to consist in the removal of a portion of the plank in the cross-walk, leaving two holes about four feet in length and nine- inches in width, without closing the street or cross-walk to the use of the public, and without placing any guard, watchman, barriers, or light at or near said cross-walk to warn persons who might have occasion to use the same.
The accident occurred on the evening of July 6, 1891. Plaintiff and her husband walked from their home down town to do some shopping. The cross-walk in question was on McYicker street where it crosses East Maumee street. Plaintiff lived on Addison street, — the next street east of McVicker street, — and north of East Maumee street. In going down town she and her husband passed on the north side of East Maumee street, where the cross-walk was in good condition. They went down and returned in the evening, and in going passed very near the defective cross-walk. As they approached McYicker street on their return, plaintiff reminded her husband that they had forgotten to get some meat. They then turned south upon the east cross-walk to go to a meat-market. Her husband crossed over in safety, but she fell in one of these holes, and was very seriously injured. The hole was about 18 inches deep. The improvement which the city was making: consisted of excavating, filling, and paving East Maumee street. The cross-walk was in good condition from the south side of the north sidewalk of Maumee street, where the plaintiff turned to cross, for about eight feet; then came these two holes, which were caused by the removal of some planks from the walk. Plaintiff's evidence tended strongly to show that there was no necessitjf for removing these planks, which was done about eight days before the-accident.
The three following questions were given to the jury:
“ 1. Did the plaintiff cross Maumee street from the south side to the north side on the east side of McVicker street?
“2. Was the plaintiff free from negligence on her part?
“3. Did the plaintiff know these inprovements were-going on?”
To the first of these questions the jury answered “No;”' to the other two “Yes.”
It is conceded that no light was placed upon the crossing, and no other means were employed to warn passengers of danger.
The negligence of the defendant is not disputed, but it is insisted that the jilaintiff cannot recover on account of her own contributory negligence. The fact that she knew that the street was being paved in close proximity to the cross-walk is not sufficient to charge her with knowledge that the cross-walk was dangerous, and that she must therefore cross in a dark night at her own risk. In the absence of some notice, travelers have a right to assume that a cross-walk is in safe condition. Her testimony was that some days before the accident, and evidently at the time the planks were removed, she was passing along the street, and saw workmen standing there, but she could not say whether they were taking up the cross-walk or putting it down,, but she noticed it was up. After that she gave no thought to the matter. The fact that she knew that the street was being repaved, and that the cross-walk was partially-torn up eight days before, is not sufficient to charge her with contributory negligence in attempting to cross when she did. On the contrary, she had the right to assume that the walk had meanwhile been placed in good condition, in the absence of any signal to warn her of danger. Under the circumstances of this case, the question of contributory negligence was properly submitted to the jury. Argus v. Village of Sturgis, 86 Mich. 344; Brezee v. Powers, 80 Id. 172; Dundas v. City of Lansing, 75 Id. 499.
The injury alleged in the declaration was that—
“ Her limbs, arms, shoulders, chest, side, and back were greatly bruised and wounded, and she was greatly and permanently injured in her spine, stomach, and internally.”
Plaintiff was allowed to show a urinary difficulty as the result of her injuries. Exception is taken to this evidence, for the reason that it is not alleged in the declaration. ' Plaintiff’s counsel disclaimed any right to recover for this, as an independent element of damage, but claimed that it. was evidence of injury to the spine. The court instructed the jury that they must not allow any damages for that, trouble, except as it might be a direct result of the injury to the spine; and that it was permitted to be introduced as one of the evidences of spinal injury, and for that purpose alone. We think the evidence was competent.
One Dr. Todd, who was one of plaintiff’s attending-physicians, was asked the following question:
“ Supposing, doctor, that she had received an injury by stepping into an open hole, the surface of the ground below the plank being 18 to 20 inches; that she stepped down so unexpectedly that her head, when she fell down, came very suddenly forward on her chest; that then she fell sideways over the plank that was on her right side, and gave a scream; that she was assisted out, and did not realize anything from the time of her falling over on her side until she found herself out on the walk, and then those symptoms of her injury which I have enumerated followed; that before she got home — a short distance — she was sick at her stomach, — now, what is your judgment as to her ultimate recovery?”
It is insisted that this question was incompetent, in that it was not based upon the evidence in the case. Counsel for the defendant has not pointed out wherein it is not based on the evidence. His brief contains no reference to the evidence, nor has he furnished an index to the record, as the rule requires. We are therefore left to examine a record of 200 pages to determine whether the objection is well taken. We are, however, satisfied, from a careful examination, that the question was competent.
Plaintiff’s counsel, in his closing argument to the jury, used this language:
“If Dr. Maclean was entitled to receive $20,000 for injury to his reputation from the Evening News, what ought this woman to receive here?”
This 'language was intemperate, and its use cannot be defended. Counsel had no legal right to refer in his argument to the result of any other suit, and especially where the suit referred to is in no manner similar to the one on trial. Were the amount of the verdict such as to leave a fair inference that the jury were influenced by this unjustifiable statement of counsel, we should feel compelled to set the judgment aside, and order a new trial; but we think, under the circumstances, it was error without prejudice.
Judgment affirmed.
The other Justices concurred.
Counsel cited in support of his objection, Shadock v. Plank-Road Co., 79 Mich. 7; Schindler v. Railway Co., 77 Id. 154,
Supreme Court Rule No. 61, as amended July 2, 1890 (74 Midi.).
The judgment was for $3,500. | [
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McGrath, C. J.
This is ejectment, brought to recover possession of premises occupied by defendant and his wife for some years as a homestead. The wife was not joined as a defendant. For this and other reasons, which it is not necessary to discuss, the trial judge directed a verdict for defendant.
The case is ruled by Hodson v. Van Fossen, 26 Mich. 68; Henry v. Gregory, 29 Id. 68; Rowe v. Kellogg, 54 Id. 206; Cleaver v. Bigelow, 61 Id. 47; Haddy v. Tobias, 85 Id. 326, — and the judgment is affirmed.
The ‘other Justices concurred. | [
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] |
McGrath, J.
Plaintiff had judgment against the owners of a saw-mill, for injuries received by him while at work near a revolving shaft, being thrown against it, his arm taken off, and otherwise severely injured.
The rough sketch on next page will aid in the description of the place of the injury.
The conductor is a trough 14 or 15 inches deep, 28 inches wide at the bottom, and 40 inches wide at the top. Along the bottom an endless chain operates a conveyor, which carries the slabs and mill refuse out of the mill to the burner. The large chute, A, leads to the floor above at an angle of 45 -deg., through which coarse slabs, cut to lath lengths, are discharged into the conductor. The chute B brings the refuse from the lath-mill, strikes the conductor at right angles, is about 12 inches wide, and is located about one foot from the lower end of cliute A. The chute C brings other refuse, is about 20 inches wide, and strikes the conductor at right .angles on the opposite side from chute B, and about three and one-half feet from the lower end of A. These chutes are all smallest at the lower end. D is a shaft two inches in diameter, crossing the conductor, and E represents a section of the pulley, which is about 36 inches from the conductor, and over which runs the belt which operates the shaft, D. F represents a platform, which plaintiff says was composed of
two 2x8 planks, while the employé who built it says it was composed of two planks 2x10 or 2x12. There is a key-seat half an inch wide, and 3.32 of an inch deep, in the shaft, which extends out 28 inches towards the conductor. This key-seat is a groove in the shaft, through which the key which fastens the pulley to the shaft is driven. The key was a piece of half-inch iron, which, when in place, extended outwards inches beyond the inner face of the pulley. The shaft is about 8 feet 5 inches above the mill floor, about 34 inches above the platform, and 14 inches above the sides of the con ductor. The platform is about 4 feet 3 inches above the mill floor. The distance between the chute B and the shaft is 5 feet 2 inches. The shaft, pulley, and belting were uncovered, and the shaft makes 144 revolutions each minute.
This plaintiff, then 13 years of age, was set at work on the platform, F. His duty was to keep these three chutes clear while the mill was in operation. To do this, he was provided with a pike-pole 6 feet long, and a hook, with which he pulled or pried out the refuse as it clogged in the chute. The boy was employed May 1, having had no experience at such work. He was the first person set at this job, and was at first placed on the other side of the conductor, without any platform, but, as he says, he could not then reach his work. In the course of a day or two the platform, F, was erected, and he was stationed on the platform to do this 'work. The trial was had some four years after the injury. He says, in substance:
“ I was set to work to keep slabs from clogging in the big box, to keep the conveyor clean. To keep these slabs moving, I was furnished with a six-foot pole with a pike in the end. While engaged in this work, I had to stand upon two eight-inch planks. I was not informed by them concerning taking care of myself, and I did not at the time that I commenced work there, and during the time I was working there, know that I was in any danger. The slabs and refuse which came into the conveyor from the chutes sometimes clogged, and it was my duty to unfasten them. To do this, I took a pike-pole and loosened them. I stuck in the pike-pole, and pulled them down.
“ I was working as usual, and trying to keep those slabs from clogging up there, and I put up my pole the first time to unfasten them, and they would not come down. I stuck my pole into the slabs, when another slab from above struck my pole, and the pole struck my breast, and shoved me back against the pulley, and partly off the platform, and, in trying to save myself, I reached out, and my hand became caught, and that is all I know of it. I could not say how my hand got caught, — whether I reached over or under. I have no memory of it. I had an arm taken off about two inches above the elbow, and had it amputated at the shoulder, and broke my heels and bruised my back, and my head was hit on the left side. It took the arm off my body, injured both feet, — ■ the left one the worst; the bones in that foot were broken.
“While I stood on that platform, I was about half way part of the time, to keep the little one olear, and then I had to go right alongside. There was the other chute, and I had to keep that clear. To keep the slabs clear at the big chute, I stood pretty near the little chute, — right by the side of it.
“At the time I got hurt, the slabs clogged up in the big chute a little more than half way up from the bottom, when the slabs started suddenly, and slid down the chute. There was some slabs from above that caused them to start, and they slid down. I cannot tell how big a pile there was. They lay angling across. Tbe corners wordd catch on each side of the box. What I wanted to do was to pull one end out so they would slide down. When the slabs started, the pike-pole did not hit me. It shoved me; struck me in the breast; shoved me backwards. When I put the pike-pole up there, I did not have it against my breast. I had the end in my hands, reaching out, and, when the slabs started to shove the pike-pole against me, I was then facing right towards the big chute, so that it shoved me backwards to the pulley, partly off the platform. If the platform was wider, I think I should have been all right. I could not step out of the ivay. I could not get the pike-pole away from in front of me; it would shove me off the platform. I could not get away from before it. When I shoved the pike into the slabs, and they came down and pushed me onto the shaft, I was facing towards the big chute. My side was partly towards the shaft. It pushed me backwards right against the pulley. I could not fall off the platform. It partly pushed me off the platform in going back. The platform was not wide enough. If it was not for the wheel, I would have fallen to the floor. I fell against the pulley. It pushed me back against the pulley. I was on my feet all the time. It just kept me walking back before the pike, until I got against the pulley. It shoved my breast. I didn't exactly fall. I could not tell where my hand struck. I tried to save myself, and my hand got on the shaft or some place. I cannot remember that. I did not catch hold of anything, as I remember. I did not know what my hand struck. I could not say whether I went over the shaft. I never measured the planks. When I fell against the pulley, the pulley kept me from falling off the platform as long as the shaft did not catch my hand. I suppose, when my hand got caught, my clothes wound me up, and kept me from falling. The pulley was going around towards me. When I reached up to pull down the slabs with the pike-pole, I handled it with both hands, and had hold clear out to the end; reaching out with both hands as far as I could.”
The boy was picked up on the mill floor, six or seven feet from the shaft. He had evidently been whirled into the air with the shaft, and thrown where found. His arm was found around the shaft. The bones in one of his feet were broken, and the 3x6 piece that supported the floor of the platform was broken, indicating that, in being carried with the shaft, his feet had struck and broken down the platform.
Defendant insists:
1. That a verdict for defendant should have been directed; that there was no evidence of negligence on the part of defendant; that there was no negligence in omitting to fence off or box the shaft; that plaintiff had admitted to several witnesses that he was hurt by hanging with his arm over the shaft.
3. That expert and opinion evidence was admitted as to the dangerous character of the place.
3. That one witness was permitted to testify that, in his judgment, the shaft ought to have been covered.
In the view which we take, it is unnecessary to discuss the questions separately. No witness questioned the danger of sudden or accidental contact with a shaft making 73 to 144 revolutions per minute. The foreman who placed the boy at work says:
“ I told him there was a shaft, and he wanted to look out for it. I did not think there was any danger. I knew there was no danger if he kept away from it. I was around there occasionally, where he was at work, before he got hurt. When I went there one day, I found him with a string, hitching it on the shaft, and seeing it wind up there. I told him I wanted him to keep those strings off. If he did not, I said, the first thing he would know he would get wound up, •and I said, If you ever get caught on the shaft, it will be hard for you.'”
The assistant superintendent of the mill says that he found the boy at one time with his arm around the shaft, and said to him:
“ My boy, you keep away from the shaft; you will get hurt the first thing you know, and, if you got wound around that •shaft, you will get killed.”
The witnesses all say that, if oner’s clothes got caught on the shaft, it would be likely to wind him up, and all, in fact, insist that throwing an arm about it would be likely to produce the result here produced.
This boy, 13 years of ago, was placed upon a narrow platform, elevated over four feet from the floor, and charged with the duty of keeping these three chutes clear. With a hook or pike-pole six feet long, he was expected to pry, push, and pull the clogged slabs so as to loosen them. When at work releasing the slabs in the chute A, if he stood close up to chute B, his left side would be within four feet of this revolving-shaft. He would naturally have to stand facing the chute, with his back to the shaft, and within a less distance from the shaft. If he pulled either with hook or pike-pole, he would pull towards the shaft. If he was pushed by a sudden giving way of the clogged slabs, he would be pushed towards the shaft. If he pulled with hook or pike-pole, and the hook or pole gave way, he would be thrown towards the shaft. A boy of 13 would be more likely to be pushed or thrown than one of more mature years. He would be more easily pushed, and would be more likely to be exerting more strength in proportion to what he had, if pulling upon hook or pole, and the giving way of hook or pole would be more likely to throw him off his balance.
There is a difference between working with or at a piece of -machinery and being engaged in other work in close proxim ity to such machinery. In the one ■’•’se, attention is naturally directed to the machinery; and in the other, attention is directed to the work, and not to the machinery, and the more attention is given to the work the less must necessarily be given to the machinery. Take the present case. Slabs were clogged, and were collecting in this chute. The boy had not control of the work, but the work was driving him. To what would his attention be naturally directed, and what would naturally challenge his entire attention, if not the clogged chute? If, from the nature'of this boy's work,he was liable to be thrown against this shaft, sudden contact with which was dangerous, can there be any question but that the place was one of danger? There was testimony tending to show that shafting like this was not usually covered; but the necessity for covering any dangerous machinery arises' from the probability of contact Avith it, from its proximity to persons engaged at work in its vicinity. This shafting was eight feet and five inches from the mill floor. Independent of the fact that this conductor and these chutes and this platform had been constructed there, and this boy placed at work beside this shaft, it would have been entirely unnecessary to cover or guard it. If this boy was likely to be thrown against this shaft, and, being thrown against it, would be likely to have his clothes caught or to clutch it, is there any question but that it should have been guarded or covered so as to prevent just those consequences? Can it be said not to be dangerous, because he ought not to have or might not have clutched it, or his clothes might not have caught?
With reference to the admissions, although plaintiff had not expressly denied them, they were in conflict with his testimony given upon the trial. The court fairly submitted that question to the jury, giving several requests, and all of the requests submitted by defendant relating specifically to plaintiff's admissions. No one saw the accident. The first word said to the boy when he was found upon the floor, his arm torn from tlie body, and wound around the shaft, was by the assistant superintendent, who said:
“ If you had done as I told you, and attended to your business and kept off the shaft, you would not be in this shape.”
The wife of the mill foreman says that he told her within a short time after the accident, an hour before the doctors arrived, that he had his arm around the shaft, and showed her how he did it, and she says he told her so repeatedly. Another witness says that the next summer after the accident plaintiff was around begging for assistance, and witness told him that if he had done as Jule told him he would be all right, and would not need the subscription paper; and the boy replied:
“ Yes, he would; if he had done as Jule told him, and not been hanging on the shaft, he would not have been hurt.”
This witness, when asked from what source he received his first information that the boy got hurt by putting his arm over the shaft, replied:
“ The men standing around him there at the time of the injury. I asked what was the matter. They said the boy had been hanging on the shaft, and got his arm torn off.”
Conceding that these statements had been made by plaintiff, they went to his credibility, and it was for the jury to deteranine that question. It was for the jury to consider under what circumstances they were made; what plaintiff’s condition then was; whether what he said when appealing for alms, in answer to a charge made, ought to have any weight. There is no rule of law which prevents a jury from believing what a witness says upon the stand, because he may at other times have made statements inconsistent with his testimony.
It is clear that, upon the question of defendant’s negligence, the dangerous character of the machinery and of the place, and the duty of defendant to have guarded plaintiff against the danger, plaintiff was entitled to have the jury instructed that, unless plaintiff understood and assumed the danger or risk, then defendant was guilty of negligence; that it was its duty to have covered or guarded this machinery; and that, if they believed that plaintiff, while in the performance of the work assigned to him, received the injury in the manner detailed by him, while in the exercise of reasonable care, he was entitled to recover. No amount of expert or opinion evidence, as to whether the place was a dangerous place, or as to whether the shaft should have been boxed, could have affected the result or prejudiced defendant.
It is next insisted that the court erred in instructing the-jury that—
“If you find that the place was dangerous, and that the defendant knew, or had reason to know, the peril to which plaintiff would be exposed, and did not give him sufficient or reasonable notice of it, and if he, without any negligence on his part, from youth or inexperience, failed to perceive or appreciate the danger, and was injured in consequence, the defendant is responsible to him, in an action, for such damages as you shall find he has sustained by reason of the injury, under the charge.”
If plaintiff fully understood or was informed by defendant, of the dangerous character of the shafting, and of his liability to fall upon it and become caught and injured by it, and appreciated that danger, he might be held to have assumed the risk.
The court further instructed the jury that—
“ A party entering upon a particular employment assumes-the risk and perils usual thereto, when the usual and customary means to guard against accidents are adopted. If the servant, with full knowledge of the danger, and understanding the increased risk occasioned thereby, consents to enter into the employment, then he voluntarily incurs the risk,, and, if he suffers damages in consequence of injury received thereby, he will be without remedy. The fact that he remains in the master’s employment under such circumstances, and with such knowledge, is what constitutes contributory negligence on his part. In such a case, the master, in permitting his machinery to be thus more than ordinarily dangerous, is guilty of negligence; but the servant, with full knowledge thereof, by remaining, contributes thereto, and hence he cannot recover if he has such knowledge.”
These instructions were without error.
It is next urged that the court assumed that the risk to which plaintiff was exposed was not one incident to his employment, in the instruction given to the jury that,—
“ When the servant shows that the injury received was in consequence of a risk not ordinarily incident to the employment, growing out of the master’s negligence, the burden is then upon the master to show the servant knew and understood the increased danger.”
The court followed almost verbatim the rule laid down in Swoboda v. Ward, 40 Mich. 423, and the instruction was correct.
The court further instructed the jury as follows:
“ Had the plaintiff been warned to keep away from the shaft, and of its dangerous nature when running? If he was notified of the danger, did he comprehend and understand it? If so, he cannot recover. In determining whether he understood the warning, if given, you may consider the plaintiff’s age at the time, his intelligence, his experience or want of experience, and such like. In other words, you may consider these circumstances to enable you to ascertain and determine-whether he fully understood and appreciated the danger. If' such warning was given, and he understood it, and continued to work there after such knowledge, he cannot recover in this. action.”
This instruction was clearly correct. A master is liable for injuries to his servant, resulting from the master’s negligence in exposing the servant to dangers which the servant is. incapable of appreciating. Chicago & Northwestern Ry. Co. v. Bayfield, 37 Mich. 205.
An employe, by reason of youth or inexperience, may not understand and appreciate a danger to which he is exposed, although the place and the dangerous machinery are open to observation. In one case, it may be due care to inform a servant of mature years and experience of the danger which he must guard against; while in the case oí an infant, or one not of mature age, and without experience, it would be carelessness in a master to content hiriiself with merely pointing-out dangers which are not likely to be appreciated. Cooley, Torts, 553.
In Coombs v. Cordage Co., 102 Mass. 572, 596, Gray, J., declares the rule to be that the notice which the master gives to the servant must be such as to enable a person of his youth and inexperience to apj>reoiate the nature of the danger. In determining the question, it is proper and necessary to take into consideration, not only the plaintiff’s youth and inexperience, but also the nature of -the service, and the degree to which his attention while at work would need to be devoted to its performance.
“ Mere information in advance that the service generally, or a particular thing connected with it, was dangerous, might give him no adequate notice or understanding of the kind and degree of the danger which would necessarily attend the actual performance of his work.”
The judgment is affirmed, with costs to plaintiff.
The other Justices concurred. | [
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Morse, C. J.
The respondent was informed against in the Lenawee circuit court, and charged with having set fire to and burned “a certain brick dwelling house,” the property of William Anderson. Section 9123 of Howell’s ■Statutes provides that—
“ Every person who shall willfully and maliciously burn, in the night-time, the dwelling-house of another, or shall, in the night-time, willfully and maliciously set fire to any •other building, owned by himself or another, by the burning whereof such dwelling-house shall be burnt in the night-time, shall be punished by imprisonment in the State prison for life” or for a term of years, at the discretion of the court.
The information seems to have been drawn under this ■statute. After the people had rested their case, the counsel for the respondent moved the court for a direction of acquittal, on the ground that there was a fatal variance between the information and the proofs, in that the evidence showed that the building was not the dwelling-house of William Anderson; that Anderson never lived in the building; that it was the dwelling-house of the defendant, or the dwelling-house of nobody. The prosecuting attorney insisted that a conviction could be had under section 9127 of the statute. The court said that he was impelled to the conclusion that the proofs did not show the burned building to be the dwelling-house of Anderson, as charged in the information. The prosecuting attorney then asked to amend the information by inserting, after the word “ certain,” and before the word “brick,” the word “vacant.” This amendment was permitted, against the objection of the respondent. The defendant introduced no proofs. The court instructed the jury that, if they found the building was burned by defendant, and that it was the property of William Anderson, the defendant should be found guilty of the offense charged. The verdict of the jury was against respondent. Judgment and sentence were stayed, and the defendant let to bail to await the issue in this Court.
Before the case went to the jury, the defendant’s counsel asked the court to designate in his charge whether the case should be submitted and a conviction asked under section 9123, or under section 9127, of the statutes. The prosecuting attorney objected to any limitation being made. The court said: “Counsel will learn that from the charge about to be given;” but in his instructions failed to comply with the defendant’s request. It is now contended by the counsel for the people that the original information was good, as it stood, under section 9137; that the use of the words “dwelling house” without a hyphen between the words “dwelling” and “house” did not convey the idea that it was Anderson’s dwelling-house in the sense of occupancy; that the addition of the word “vacant” only made the meaning of the original information clearer. The counsel insist that the case was submitted to the jury, and that the verdict can stand, under section 9127, which reads as follows:
“Every person who shall willfully and maliciously burn, either in the night-time or in the day-time, any banking house, warehouse, store, manufactory, mill, barn, stable, shop, office, out-house, or other building whatsoever of another, other than is mentioned in the third section of this chapter, or any bridge, lock, dam, or flume, or any ship, boat, or vessel of another, lying within the body of any county, shall be punished by imprisonment in the State prison not more than ten years.”
We think the original information clearly charged an offense under section 9123. Under the proofs in the case, the defendant’s counsel are right in their contention that, in the sense in which “dwelling-house” is used in the statute, this building was not the dwelling-house of William Anderson. The adding of the word “vacant” did not better the information under section 9123. The crime of burning a dwelling-house, under our statute, is an offense against the habitation, and not against the fee title. Snyder v. People, 26 Mich. 106; People v. Fairchild, 48 Id. 31. This was not a case of temporary absence of the occupant of the dwelling-house, because Anderson had never dwelt in it. It had never been his dwelling-house, in the sense of the statute.
There was no examination upon the complaint and warrant in this case, the defendant .waiving the same. He was bound over to the circuit court, and informed against under section 9123. The information, therefore, could not be amended so as to charge an offense under section 9127, which is a different offense, with a' different penalty.
The verdict cannot stand. The defendant was entitled to an acquittal, and must be discharged from custody under the warrant and information in this case. No reason is seen why he cannot be complained against and tried under section 9127, as the result in this case can be no bar to a prosecution for the offense stated in that section.
Yerdict set aside, and respondent discharged.
The other Justices concurred. | [
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] |
Long, J.
This cause was tried in the circuit court before a jury. The suit was on a sheriff’s bond; but the only question in controversy here is upon a justice’s summons, which was introduced in evidence, and upon which the rights of the parties depend. The summons was issued February 9, 1889, returnable February 18. It was served upon one of the defendants in the summons named, February 13. It is claimed upon the part of the defendants that both the day of service and the return-day should be excluded, and that, so excluding both days, no sufficient service was had to give the justice jurisdiction. How. Stat. § 6827, provides:
“A summons shall in all cases, except as hereinafter otherwise provided, be served at least six days before the time of appearance mentioned therein.”
If this statute provides for six days exclusive of the day of service and the day of return, the summons was not properly served, and the justice did not acquire jurisdiction. If, on the contrary, either of these days is to be included in the computation of time, then it was properly served, and the justice had jurisdiction.
It is claimed that there is great confusion in the cases heretofore decided by this Court upon this question, but we thipk, if the proper rule in the construction of the statutes is kept in mind, this confusion is not so apparent. The rule was laid down in Turnpike Road v. Haywood, 10 Wend. 422, which was followed by this Court in Arnold v. Nye, 23 Mich. 286, and that rule has_ since been adhered to, or at least it is apparent that this Court has attempted to keep within that rule. In Turnpike Road v. Haywood, supra, the rule is that, in determining the time within which process or notice must be served, the language of the statute .must be observed; and, where an act is to be done a certain number of days before a day stated, then that day is excluded in the computation, but, where an act is to be done a certain number of days before another act, then the day on which that act is to be done is included. The summons was therefore served within the time required by the statute, and gave the justice jurisdiction.
Under the act of 1875, pertaining to public drains, the commissioner was required to serve notice of examination upon the application “at least five days before the day appointed as aforesaid.” Act No. 140, Laws of 1875. In Lane v. Burnap, 39 Mich. 736, and Taylor v. Burnap, Id. 739, it was held that five clear days were required-
It has also been held by this Court that, in proceedings to lay out highways, the statute requiring- that notice of a meeting to determine the necessity of a highway must-be served at least 10 days before the time of said meeting,, requires 10 full days. Platt v. Highway Commissioner, 38 Mich. 247; Coquard v. Boehmer, 81 Id. 445; Cox v. Commissioner, 83 Id. 193. See, also, Rifenburg v. City of Muskegon, 83 Mich. 279.
It is held under How. Stat. § 6840, requiring writs of attachment to be served at least six days before the return thereof, that the last day is to be included. Hubbell v. Rhinesmith, 85 Mich. 30, and cases there cited.
It is also held, under section 4245, Comp. Laws of 1857 (How. Stat. § 7434), authorizing a commission to take depositions, which provides that notice shall be given to the adverse party at least 10 days before the making of application therefor, that the day of service is to be excluded, and the day on which the application is to be made is included. Arnold v. Nye, supra. See, also, Eaton v. Peck, 26 Mich. 57, and Warren v. Slade, 23 Id. 1. We think the rule as laid down in Arnold v. Nye, supra, which adopted the rule of the New York court in Turnpike Road v. Haywood, supra, has not been intentionally departed from in the subsequent cases in this Court, and that the true construction of this statute includes the return-day mentioned in the summons in the computation of time.
As the rule in Turnpike Road v. Haywood, supra, must hereafter be followed, we note the language of that court in which it is said:
“ Our rule is well settled that, when days are mentioned in the statutes or our own rules, they are to be reckoned one exclusive and one inclusive. Thus a notice of argument is a notice of eight days. If the term commences on the 9th day of the month, the service must be on the 1st. If you include in the computation the day of service, you will have eight days, excluding the first day of the term; if you exclude the day of service, you include the first day of term. So, when six days’ service of a summons are required, and it is returnable on the 8th, the service on the 2d is good. This rule of construction is said by the defendant’s counsel to be inconsistent with the decision in Small v. Edrick, 5 Wend. 137; but it will be seen the phraseology of the two statutes under which the questions arise is different; the one requires the summons to be served at least six days before the timé of appearance; the other requires notice to be served at least fourteen days before the first day of the court. The latter excludes the first day of the court, and therefore requires fourteen days,— one exclusive and one inclusive, excluding the first day of court, which our rules and the general rules of construction include. That case is, therefore, an exception to the general rule, and is so from the terms of the statute. There was no error in the justice’s court in this part of the case.”
In that case the justice’s summons was served on the 2d day of April, in the afternoon, and was returnable on the 8th day of April, at 10 o’clock in the forenoon.
Isabelle v. Iron Cliffs Co., 57 Mich. 120, which defendants’ counsel relies upon as sustaining his position as holding that the day of service and the return-day must be excluded in computing the time, must be overruled if at variance with the above rules of construction of the statute; but the learned Justice who wrote the opinion in that case was giving construction to a statute relative to the service and return of a writ of attachment. The officer mating service in that case was unable to find the defendant within his bailiwick, and it was held that the case fell within the rule laid down in Town v. Tabor, 34 Mich. 262.
We are aware that in a note to the fourth edition of Tiffany’s Justice Guide, under the title of “ Summons,” p. 31, the learned judge who revised that edition carries the impression that the rule has been settled in this State that both the day of service and the return-day of the justice's summons are to be excluded in the computation of time. He says, as supporting that contention, that, when an act is to be done before a specified time or day, that day is to be excluded in computing the time for complying with the requirement, and cites the cases of Sallee v. Ireland, 9 Mich. 154; Powers’ Appeal, 29 Id. 504; Platt v. Highway Commissioner, 38 Id. 247; also one case from New York, and two late cases from Massachusetts. He also says, “it is ruled in this State that the day of service is to be excluded," citing the cases above referred to, together with Lane v. Burnap, supra, Taylor v. Burnap, supra, and the case of Arnold v. Nye. It is evident from this that the rule laid down in Turnpike Road v. Haywood, cited with approval in Arnold v. Nye, was lost sight of, as many of the cases cited in support of the rule laid down in the note arose under quite different statutes from the one in controversy here. We have examined the cases with considerable care, in order to deduce the proper rule of construction of this statute, so that in the future it cannot be said that there is confusion in the cases; and the rule hereafter must be adhered to under this statute, excluding the day of service and-including the return-day in the computation of time.
It is also claimed that the judgment of the court below should not be disturbed, for the reason that the docket entry of the judgment put in evidence does not show affirmatively that the justice, on the adjourned day of the cause, waited one hour for the defendants to appear. This point is ruled by Smith v. Brown, 34 Mich. 455. Had an attack been made upon the judgment in a direct proceeding for that purpose, this defect would have been error. Bossence v. Jones, 46 Mich. 492; Noyes v. Hillier, 65 Id. 636. But the judgment was not attacked except in this collateral way, and tlie defect is not jurisdictional, as beld in Smith v. Brown.
Tbe judgment must be reversed, with costs, and a new trial granted.
Tbe other Justices concurred.
See White v. Prior, 88 Mich. 647. | [
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Montgomery, J.
The plaintiff is a traveling salesman, and, prior to the year 1888, had been in the employ of defendant for several years. The parties had a disagreement in 1887, and the plaintiff left defendant’s employ. About the 1st of January, 1888, he was re-engaged, and continued to work for defendant during the year 1888. This action is brought to recover a balance of $300, ■claimed to be due him. Dnder the agreement for re-employment, his right depended upon the question of what the terms of this agreement were. The plaintiff testified that the defendant agreed to pay him $100 per month and expenses, at all events, and, in case he succeeded in increasing his sales over those of former years, he should receive $300 in addition at the close of the year. The defendant disputed the plaintiff’s testimony, and asserted that the agreement was that it would pay for plaintiff’s services $100 per month, and, further, that, if his services were satisfactory, it would do what was right by him at the end of the year, and that plaintiff undertook to abide by defendant’s decision as to what was fair and right; and the defendant’s manager testified that the plaintiff’s services were not satisfactory, and that there was not, therefore, any sum due him, he having received the $100 per month. The jury found for the plaintiff, and defendant brings error.
1. It is assigned as error that plaintiff’s counsel persisted in putting leading questions to the plaintiff when on the stand. The only question which plaintiff’s counsel put to the witness, and which was objected to on this ground, was the following:
“ Was there ever any other arrangement made about the Detroit expenses than the first agreement that he should pay ? ”
This was answered in the. negative. There was no abuse of discretion in permitting this question to be answered. Lyon v. Chamberlain, 41 Mich. 119.
2. Some testimony was given relating to the circumstances under which plaintiff left defendant’s employ in the year 1887, and one of the defendant’s officers offered to testify as to what he told his book-keeper. The circuit judge correctly ruled that this was not competent. The question was not accompanied by any proposition to show that the statement was afterwards communicated to the plaintiff; but, if it had been, the error- would have been harmless. Both parties had testified to a disagreement in the year 1887. There was no dispute about it, and the only important fact connected with it was that plaintiff had left the employ of defendant, and therefore there was occasion for the re-employment.
3. When the defendant’s manager was on the stand it appeared that he produced certain letters, claimed to have been received from customers, containing complaints against plaintiff, which letters were offered, but, on objection of plaintiff’s counsel, withdrawn. Complaint was made that plaintiff’s counsel was permitted to cross-examine the witness on the subject of these letters, but the only question to which specific objection is made remained unanswered, and we cannot see that the defendant’s cause was in any way prejudiced by permitting the question to be put.
4. Complaint is made of a portion of the charge to the jury, wherein the circuit judge said:
“It is admitted on both sides that Mr. Church worked there a number of years. It is admitted that in August or September before he was at some city in an adjoining state; that he wrote he wanted to lay off; and he had a lay-off up until the first of the nest year. That you need not consider as material in this case, because it cuts no figure in the case. He was away some three or four months, and then came back. The whole question rests on the evidence given here, and the law I have given you here, as to what was the contract.”
Only a portion of this is excepted to, but we state all that was said in that connection, which demonstrates, 'as we think, that there was no error in the portion of the charge complained of. What was said to the jury was, in effect, no more than saying that the decision must turn upon the question of what was in fact the agreement of 1888, which was, as we view it, the sole question in the case.
We find no error- in the record, and the judgment will be affirmed, with costs.
The other Justices concurred.
See Badder v. Keefer, 91 Mich. 612. | [
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Montgomery, J.
The defendant was convicted in the police court of Grand Rapids, and upon appeal in the superior court, of indecent exposure of his person. He appeals to this Court from the conviction of the superior court, and contends:
1. That the complaint made against him stated no offense known to the law.
2. That the court erred in trying the case with a jury, the defendant having waived a jury.
1. The complaint against the respondent was for the violation of an ordinance of the city of Grand Rapids, entitled, “An-ordinance relative to the preservation of the public peace and good order in the city of Grand Rapids,” sec tion 4 of which provides that “no person shall make any indecent exposure of his or her person in the streets, lanes, alleys, or elsewhere in said city.”
The criticism which is made upon the complaint is that it does not allege that the indecent exposure, which is sufficiently set out in the complaint, was intentionally or designedly made. But, in this respect, the complaint follows the ordinance of the city, so that the eases cited by counsel as to the necessity of such an averment in a prosecution for indecent exposure of the person, at the common law or under the statute making intent an ingredient of the offense, are not in point. The precise question more properly is whether it is within the police power of the city to make it an offense to indecently expose the person, without'reference to the intent which accompanies the act. The general rule undoubtedly is that intent is an ingredient of every offense, but this is not universally true. On the contrary, there are many statutes and ordinances which impose upon the public the duty to do, or refrain from doing, particular acts at their peril. In People v. Roby, 52 Mich. 577, a statute of this State, which requires that all saloons, etc., shall be closed on the first day of the week, was held to impose the positive duty upon the proprietor to see to it at his peril that such a place of business was closed on the first day of the week. Under a statute of Massachusetts which provides that whoever kills or causes to be killed, for the purpose of sale, any calf less than four weeks old, shall be punished, etc.,, it was held that it was not necessary to allege in the indictment, under the statute, that the defendant knew that; the calf was less than four weeks old. Com. v. Raymond,. 97 Mass. 567, So in Com. v. Wentworth, 118 Mass. 441, it was held that, under a statute which imposes a penalty upon any person who shall sell or keep or offer for sale naphtha under any assumed name, it was unnecessary to' show that the sale was made with any guilty intent. See the numerous oases cited in People v. Roby, supra, where it was said that—
“ Many statutes which are in the nature of police regulations, impose criminal penalties irrespective of any intent to violate them; the purpose being to require a degree of diligence for the protection of the public which shall render violation impossible."
We think that the ordinance in question falls within this class, and that it is a legitimate exercise of the police power to prescribe that no person shall make any indecent-exposure of his or her person in theo streets, lanes, alleys, or elsewhere in the city, and to provide a penalty for the violation thereof. An exposure of the person purely accidental is not covered by the ordinance. The terms employed in both the ordinance and complaint imply an affirmative voluntary act on the part of the accused.
2. The objection that the superior court directed the case to be tried by a jury, notwithstanding that the respondent was willing to submit the question of fact to-the judge, is without merit. The jury is a component part of the court, and it is provided by statute (How. Stat. § 6485) that in all actions of tort, and in all other-actions where the subject-matters are, in the opinion of the court, peculiarly proper for the consideration of the jury, it shall be competent for the court to order the cause to be tried by a jury. The Constitution (article 6, § 28) provides that in every criminal prosecution the accused shall have the right to a speedy and public trial by an impartial jury; and while it has been held that this right may be waived by the accused if he sees fit (Ward v. People, 30 Mich. 116), there is no constitutional or statutory right of the accused which requires the court to dispense with the aid of a jury in the trial of questions of fact.
The conviction should be sustained, and the record remanded.
The other Justices concurred. | [
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] |
McGrath, J.
This is an action upon a policy of insurance dated October 13, 1888, and running for three years, issued to J. O. Hough “ on his two-story frame dwelling, * * * against all such immediate loss or damage sustained by the assured as may occur by fire to the property above specified, but not exceeding the interest of the assured in the property.” By the terms of the policy, the assured by its acceptance—
“Warrants that any application, survey, plan, statement, or description, connected with procuring this insurance, or contained in 'or referred to in this policy, is true, and shall be a part of this policy; that the assured has not overvalued the property herein described, nor omitted to state to this company any information material to the risk.”
The policy also provided that—
“ This policy shall become void, unless consent in writing is indorsed by the company hereon, in each of the following instances, viz.: If the aésured is not the sole and unconditional owner of the property; or if any building intended to be insured stand on ground not owned in fee-simple by the assured; or if the interest of the assured in the property, whether as owner, trustee, consignee, factor, agent, mortga gee, lessee, or otherwise, is not truly stated in this policy,- or if any change take place in the title, interest, location, or possession of the property (except in case of succession by reason of the death of the assured), whether by sale, transfer, or conveyance, in whole or in part, or by legal process or judicial decree; or if the title or possession be now or hereafter become involved in litigation; or if this policy be assigned or transferred before a loss.”
No written application for the policy was requested or made. The insurance was solicited by the company’s agent, “ who saw the building permit in the paper, and came to the office [Hough’s], and wanted to write a policy on the house.” No statement as to the condition of the title or as to the nature of Hough’s ownership was asked for or given.
Hough, in November, 188?, had bought 10 acres of land for $18,000, a large portion of which had been paid, and had subdivided the land; the house in question being, at the time the insurance was effected, in process of construction on one of the lots known as “ Lot ?.” He held the whole under a contract of purchase. October 13, 1888, the policy was issued. May 11, 1889, Hough contracted, in writing, to sell to one Stevens this lot ? for $3,500, which was to be paid as follows: $25 on or before July 1, 1889, and the further sum of $25 in monthly payments thereafter, until the entire sum, with interest, should be paid. Stevens contracted to pay all taxes and assessments upon the property, and to pay the expenses of keeping the buildings insured against loss or damage by fire. Hough agreed, on performance of all of the covenants upon Stevens’ part, to execute a good and sufficient deed to Stevens. It was further agreed that—
“ The said party of the second part shall have possession of said premises on and after the date hereof, while he shall not be in default on his part in carrying out the terms hereof; * * * and if said party of the second part shall fail to perform his agreements on this contract, or any part of the same, the said party of the first part shall, immediately after such failure, have a right to declare the same void, and may retain whatever may have been paid hereon, and all improve ments that may have been made on said premises, to the extent of his just interest therein, and treat the party of the second part as his tenant holding over without permission.”
Stevens went into possession at once, and occupied the premises at the date of the fire, although he only made three monthly payments. On July 2, 1890, he was given notice to quit the premises, and that the contract had been declared void. In March, 1890, Hough assigned all his interest in the original contract held by him to plaintiff. At the time of that assignment, Hough assigned the policy to Hall, and Hough and Hall went together to the office of defendant’s agent.. Hall told the agent that Hough had “assigned Ms interest-in the property” to him (Hall), and that he “wanted the policy to read payable to him in case it should burn,” and thereupon the consent of the company ivas indorsed upon the policy.
Hpon these facts the court directed a verdict for defendant, and plaintiff appeals.
The record presents two questions:
1. Was this contract valid at its inception?
2. Conceding that the policy was vitiated by the Stevens contract as to Hough, what was the effect of the company’s consent to the assignment to plaintiff?
It must be conceded that Hough, at the inception of the policy, had an insurable interest in the property. It is well settled in this State, at least, that an applicant for insurance is not required to show the exact condition of his title, unless requested so to do (Castner v. Insurance Co., 46 Mich. 15; Guest v. Insurance Co., 66 Id. 98); that the failure to mention incumbrances, if not inquired about, the application being-oral, and no deceit being practiced, is immaterial (O’Brien v. Insurance Co., 52 Mich. 131; Tiefenthal v. Insurance Co., 53 Id. 306); and that an equitable ownership will support a recital of ownership (Farmers’ etc., Ins. Co. v. Fogelman, 35 Mich. 481; Guest v. Insurance Co., supra). See 1 May, Ins. §§ 285-287, and 7 Amer. & Eng. Enc. Law, 1020.
In the present case, neither Hough nor Hall was asked to state the nature of his interest in the property or the condition of the title; neither made any misrepresentation or was guilty of any fraud or concealment; and Hough, at the inception of the policy, and plaintiff, at the time of the consent of the company to the assignment to him, had such an interest in the property insured as would support the recitation in the policy that it covered “liis two-story frame dwelling.” Hough’s contract with Stevens was not executed until after the policy had been issued, and when Hall took Stevens was in default; but, in any event, Hall had at that time an equitable interest.
The provisions of the policy in the present case respecting* the sole and unconditional ownership of the property, the truthfulness of the statement as to the interest of the assured in the property, and as to any change in the title, interest, location, or possession of the property by sale or transfer, are precisely the same as Avere passed upon in Hoose v. Insurance Co., 84 Mich. 309, and the Court there held that all the provisions of the contract must be taken together; that, if the insurer desired to know the interest it was insuring, it should have defined that interest in the policy; that it Avas the intention of the parties to make a binding contract of insurance when accepted by the assured; that the claim as to sole and unconditional ownership could only be held to relate to changes arising after the execution and acceptance of the policy, and did not apply to an existing state or condition of the property at the time that the policy was issued. That case, therefore, disposes of the first question.
The other question is the more serious one, and one upon which the authorities are by no means uniform.
In Insurance Co. v. Munns, 120 Ind. 30 (22 N. E. Rep. 78), the assured had mortgaged the property, and afterwards sold it to Munns, and assigned the policy, to which assign ment the company, without knowledge or notice of the mortgage, consented. The court held—
That a contract of insurance is purely a personal engagement, and does not run with the property insured; citing Nordyke & Marmon Co. v. Gery, 112 Ind. 535, and Cummings v. Insurance Co., 55 N. H. 454; “that the policy expires with the transfer of the estate, so far as it relates to the original holder, but the assignment and assent of the company thereto constitute an independent contract with the purchaser and assignee, the same, in effect, as if -the policy had been reissued to him upon the terms and conditions therein expressed. * * * The contract of insurance, thus consummated, arises directly between the purchaser and the insurance company, to all intents and purposes the same as if a new policy had been issued embracing the terms of the old. In such a case, no defense predicated on supposed violations of the conditions of the policy by the assignor will be available against the assignee. Until the latter himself does some act or permits a condition of things to exist in violation of the terms of the policy, he is not in default.” That being a new and independent contract, both parties are subject to the same rules which govern the making of the original contract.
A large number of authorities are cited in support of the conclusions reached.
In Steen v. Insurance Co., 89 N. Y. 315, the court held that the consent to the assignment created a new contract between the company and the assignee, unaffected by the forfeiture, if, in any event, it could have been insisted upon.
In Shearman v. Insurance Co., 46 N. Y. 526, the property was conveyed to plaintiff March 4. The policy was renewed in the name of the grantor March 21, and was assigned to plaintiff April 15, and on the same day the company consented to the assignment. The company insisted that at the time of its consent it had no knowledge of any fact except that at that time it was notified that the property had been conveyed to plaintiff, but the time of the transfer had not been given, nor the fact that the policy was issued after the transfer. The court held that—
“ The renewal revived the original policy, and continued it with all the virtue which it would have had for any purpose if it had not expired; that the consent to the assignment was equivalent to an agreement to be liable to the assignee upon the policy as a subsisting operative contract, for which agreement the retention of the premium received cn the renewal was a good consideration.”
In Hooper v. Insurance Co., 17 N. Y. 424, the insurance was upon a stock of goods which had been sold on execution, and the purchaser obtained the consent of the company to an assignment to him, and the court held that the policy became a new contract of insurance between the underwriters and the assignee.
“An assignment, therefore, being of no avail, except in case of an interest in the assignee in the subject insured, the request made to the defendants to consent to an assignment to plaintiff was of itself notice to them that he had acquired or was about to acquire an interest in the insured property. If, therefore, it was important to the defendants to know what the nature of the interest was which the plaintiff had acquired, they should have asked for information in «respect to it. If they were content to give their consent without such inquiry, it was their own fault.”
In Ellis v. Insurance Co., 64 Iowa, 507 (20 N. W. Rep. 782), it was held that—
“ Although the assured may have made statements in his application which by the terms of the policy would defeat a recovery thereon by him, yet, where the insured property is sold and the policy assigned to another, and the company assents to such assignment, a new contract arises, which is not affected by the fraud of the party originally insured.”
In Ellis v. Insurance Co., 68 Iowa, 578 (27 N. W. Rep. 762), a majority of the court held that the provision in the policy that, “if the title of the property is incumbered, the policy shall be void,” was imported into the new contract, and that the existence of the mortgage invalidated that contract. The court divided upon the construction of this provision, a minority of the court holding that it was not against prior or existing incumbrances, but against those which should fall on the property subsequent to the execution and delivery of the new contract. Upon this question the dissenting opinion is in accord with the case of Hoose v. Insurance Co., supra.
In Ellis v. Insurance Co., 32 Fed. Rep. 646, there is a very able discussion of the question by Brewer, J., who says:
“ Where an assignment goes with an absolute sale of the property, there is the creation of a new contract. If it is a new contract for one purpose, it is a new contract for all purposes.
“The assignment is expressed to be subject to the terms and conditions of the policy. What does that mean? It is equivalent to saying that the assignee takes the contract as of present writing, containing the same terms and stipulations, binding him to the same duties, and subjecting him to the same liabilities that were imposed by the contract in the first instance upon the assignor. In no other way can it fairly be said that a new contract was made. Tested by that rule, the assignee agreed, as the assignor had agreed in the first instance, that he Avould place no incumbrance upon the, property, and that, if he did, the policy should fail. There is no pretense that he has violated that stipulation thus construed. It may well be doubted whether the use of the technical terms ‘ assignment/ ‘ assignor/ and assignee' are apt to describe the actual transaction. When the insured sells the property, that moment the policy falls. He has no insurable interest. The policy ceases to have legal force as a policy. Can it be said he is assigning that which is nothing, and that the insurance company contemplates and assents to the transfer of that which has no legal existence? * * * This is a practical question, and we must look at these matters in a practical light. When the purchaser buys the property, naturally the thought in his mind is insurance. It being his, and the old policy being dead, he looks for insurance. He finds a policy which had been in force, dead because of his purchase and cessation of the insurable interest in the assignor, yet which the insurance company is willing to have transferred to him. Would it not be an injustice to him if, after the insurance company has consented to that transfer, it could turn back to acts done by the person from whom he obtained the policy, and claim that those acts vitiated the whole thing, and rendered it not liable to the assignee? * * *
“But it is said there is really no consideration for this contract on the part of the company. * * * The assignment of this policy is an assertion, practically, by the assignor of a right to an unearned premium, and the claim of such unearned premium, presented to the assignee, is assented to by the company when it consents to the assignment. It matters not that there may have been no actual right to such unearned premium, for the recognition and compromise of a claim is consideration. Further than that there would be the injury to the assignee as well as the benefit to the insurer to be considered.
“ Again, it is said that there can be no waiver without knowledge; that the insurance company was ignorant of the fact of this incumbrance; and therefore it should not be held to have waived its rights. There may be estoppel without knowledge. * * * This consent to the assignment, dealing with things in a practical way, must be construed as a statement by the insurance company that it recognized that policy as a valid instrument. Surely it would be unjust to think that the insurance company put itself into the position of assenting to the transfer of a policy which had no validity, going through the form of consenting to that which had no legal existence, and was worthless.
“These considerations, although we concede that the question is one of not perfect transparency, lead us to the conclusion that this assignment must be taken, in the language of the text-books and the authorities, to create a new contract between the assignee and the insurance company, — a new contract embracing, as of present writing, the same terms and stipulations as were embraced in the contract originally written between the assignor and insurer.” 2 May, Ins. § 378; Wood, Ins. §§ 110, 366; Fland. Ins. 484; Cummings v. Insurance Co., 55 N. H. 457; Wilson v. Hill, 3 Metc. 66; Flanagan v. Insurance Co., 25 N. J. Law, 506; Pratt v. Insurance Co., 64 Barb. 589.
An insurance policy is a personal contract of indemnity.
It is non-assignable, except with the assent of the insurer; nevertheless the assignment of policies of insurance is an incident of nearly every transfer of personal property or improved real estate. TJnexpired policies, before loss, have, as a rule, in the hands of the.person to whom issued or his assignee, .a certain face value, which is the unearned premium or indemnity to the assignee for the unexpired term. They are either transferred as a part of the consideration for the purchase money, or the value of the unearned premium is agreed to be paid in consideration of the assignment. The assignee acquires the right to the unearned premium, or the right to the indemnity for the unexpired term, for value. The right to the unearned premium may be subject to the conditions of the contract, for he takes that right subject to the consent of the company. But suppose that the unearned premium is paid over to the assignee of the policy, or credited upon the premium for a new policy, could it be contended that the company would have the right to recover back the sum so paid or credited from the assignee? The company, in such case, recognizes the validity of the policy, and the assignee is simply reimbursed for what he has paid to the assignor.
The ordinary railroad mileage ticket is not transferable, ■and attached is a condition that its use by any other person will operate as a forfeiture. ' Suppose that A. holds such a ticket, which he desires to transfer to B., and they go together to the office of the railroad company, and A. transfers the ticket to B., and the company indorses its consent, B. paying the value represented by the unused strip for the transfer. Could the railroad company be afterwards heard to say, as against B., that A. had, before the transfer, forfeited the contract, even though it had no knowledge of the ¿breach, and therefore the contract was void as to B. ? Certainly not. By consent, a new contract between the company and B. is created. The company has agreed with B. that the unused coupons are good in his hands. The company cannot be said to have waived that which it had no knowledge of, but it has waived the right as against B. to insist upon A/s infirmities, whatever they may have been. The contract which, prior to the transfer, was personal with A., has ceased, and has become personal with B. B. does not agree that A. has not violated its provision, but only that he will not. Insurance contracts are peculiar, and hence rules applicable to other contracts are applicable to them only so far as the provisions are analogous.
When a party to a non-assignable instrument, representing upon its face an unearned value, consents to its transfer without reservation, and the assignee in good faith pays value for such transfer, the party consenting cannot be heard to set up mental reservations or prior breaches which were unknown to either party. The rule applicable to the transfer of an assignable contract has no application to such contracts. The consent to the assignment imported validity. The right to withhold or grant it is for the benefit of the insurer. It has its burdens as well as its .advantages. The application for consent is, in effect, one for a contract of indemnity to the assignee. It affords an opportunity to the company to examine the risk, or to inquire as to the title or interest to be insured, or as to whether there had been any other change in risk or title. Had defendant done so, and refused its consent, plaintiff would have been in a position to retain or recover the consideration paid, and to seek indemnity elsewhere. It is too late now, after the loss, to set up the changed conditions.
It may be said, too, that at the time of the application for the consent of the company to the assignment, plaintiff informed the company that Hough had assigned his interest in the property to him. That was sufficient, of itself, to put the company upon inquiry.
Defendant insists, further, that, inasmuch as plaintiff had commenced proceedings against Stevens before a circuit court commissioner to recover possession of the premises, the policy was invalidated thereby. The policy contained a provision that, “if the title or possession be now or hereafter become involved in litigation,” the jDolicy should become void. Stevens was clearly in default, having occupied the premises for 12 months, and paid but $75, whereas he had agreed to pay $25 per month. Plaintiff had declared the contract under which Stevens occupied void, as he had the right to do under the contract. From that moment Stevens became and was a tenant holding over without permission. The proceeding to recover possession was predicated upon these provisions of the contract. It cannot be contended that the provision of the policy referred to contemplated that, in the event that proceedings were instituted to oust a tenant, the policy should become 'void. This provision, taken in connection with the other provisions of the policy, clearly relates to a litigation over the title or possession of the assured.
The judgment must be reversed, and a new trial had, with costs of this Court to the plaintiff.
The other Justices concurred. | [
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Grant, J.
This is an action of trover, in which the ■plaintiff recovered for tbe conversion of 2 bedsteads, 1 feather bed, 1 pair feather pillows, 2 quilts, 1 straw bed, 25 yards rag carpet, 1 clothes-basket, household dishes, and a waslitub. The suit was commenced in justice's court, and appealed to the circuit court, where the verdict and judgment were for $32.27. The record contains 100 pages of fine print, and needlessly includes all the testimony in the case.
Defendant Hutchisson was deputy-sheriff, and received a writ of replevin, issued by a justice of the peace at the instance of one Mrs. Tucker. Defendant Nowlin was the teamster who, at the request of Mrs. Tucker, accompanied Hutchisson when he went to seize the goods by virtue of his writ. Plaintiff claims that the goods here in controversy rvere not included in the writ of replevin, and such appears to be the fact. She gave evidence tending to show her title and right of possession; that at the time of the seizure a list of these articles Avas read to defendant Hutchisson by plaintiff's husband, who was acting as her agent, and he Avas forbidden to take them; that neither plaintiff nor her husband was present at the time the goods Avere seized and loaded upon the Avagon; that Nowlin knew that Hutchisson took goods not included in his writ; that plaintiff's husband, learning that these goods had been seized, followed Nowlin, overtook him upon the road, pointed out to him the goods in dispute, and demanded that he return them to the place from which they were taken. Nowlin himself testified that he was hired to draw them away, and he was going to draw them, “neck oi’ nothing."
Plaintiff's testimony also showed that when Hutchisson served the writ of replevin, after the seizure, her husband informed him that, he had taken these goods, and demanded their return, but that he declined, saying: “ The goods are gone. I can't do anything with them now." This evidence was controverted by the defendants.
Defendants’ counsel insist that the court should have directed a verdict for them, because—
1. Plaintiff had not shown herself to be the owner of the goods.
2. She had shown no conversion by the defendants, or either of them.
We think neither position is correct. The title and right of possession were in dispute. The plaintiff testified that she had possession of the goods at the time, and that she had the key to the house in which they were. It is unnecessary to go into a detailed statement of the evidence upon the title to this property, and the right of possession,, which would be sufficient to. sustain the verdict, though the plaintiff had not the real title.
Under the plaintiff’s evidence it is manifest that these-articles were taken under color of the writ of replevin. It was the duty of the officer to see that no articles were taken except those described in his writ. He and Nowlin went to the house apparently for no other purpose than to execute his writ, and, in the absence of plaintiff and her husband, assisted in taking and loading the goods. He did this after stating to plaintiff’s husband that he-would take only the - goods described in his writ. If the jury believed this evidence, Hutchisson was guilty of conversion, and no demand for the return of the goods was-necessary.
But, if a demand were necessary, we think the question was properly left to the jury. If they believed the plaintiff’s witnesses, this property was pointed out by the plaintiff’s agent to both defendants, and its return demanded, when it was within the power of each to return it. The charge of the court was full and fair, and the case was. properly left to the jury.
Judgment affirmed.
The other Justices concurred. | [
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] |
McGrath, J.
Plaintiffs contracted to sell to James Greacen a 3-saw gang edger, for the sum of $225, payable $112.50 down, and the balance in two, six, and nine months. Greacen gave interest-bearing notes for the deferred payments, and the edger was delivered into his possession, under the following agreement:
“It is also hereby agreed that the above-specified machinery shall remain the property of Thirlby, Jackson & Go., and the machine be subject to their order, until all the purchase price is paid, whether it rest in account or be evidenced by promissory notes or otherwise; but in default or failure to pay any part of the price or the interest thereon, at the time or in the manner herein specified, Thirlby, Jackson & Co. shall have the right to take possession of said machine, wherever it may bo, and whatever sum or sums shall have been paid on the account, shall be f&rfeited^,foiu.wear_and tear, rent, and expense of taking possession of said property."
The first of these notes was paid at maturity. In the fall of 1889, after the maturity of the second note, Greacen gave a chattel mortgage upon his personal property to Olney, Shields & Co., purporting to include this edger, who afterwards foreclosed the same, and the edger was struck off to defendant. After the maturity of the notes, plaintiffs demanded payment from Greacen, and also from defendant, and upon refusal to pay they demanded the edger, and, upon refusal to deliver, replevin was brought.
It is well settled that, under the facts stated, Greacen could, not, before compliance with the conditions of this agreement, transfer tbe property so as to vest the title in a Iona fide purchaser. Couse v. Tregent, 11 Mich. 65; Dunlap v. Gleason, 16 Id. 158. Such a contract is one of bailment merely. Plaintiffs’ right of possession does not depend upon the non-performance of the enumerated conditions; thebailors have a right to recover for the conversion of the property upon a wrongful determination by defendant of the contract of bailment, beyond and independent of the stipulated conditions. Johnston v. Whittemore, 27 Mich. 463. A transfer by the vendee to a subvendee is a direct violation, of the bailee’s duty, which makes him a wrong-doer, and,, under such circumstances, no demand is necessary, as the possession originates in a tortious taking. Whitney v. McConnell, 29 Mich. 12. In case of default, or in case of transfer of possession or attempted sale by the bailee, the vendor has an undoubted right to take possession. Smith v. Lozo, 42 Mich. 6, and cases cited above. The bailee has ne such title as would authorize a levy by his creditors. Marquette Mang. Co. v. Jeffery, 49 Mich. 283.
The principal question in the case, however, is whether Greacen or the purchaser at the foreclosure sale had any such special property in the edger as entitled them to a finding as to their interest in the machine and a verdict for that amount in the replevin suit. The defendant insists that no surrender of the two unpaid notes was made; that the testimony offered tended to show that the machine when taken was worth $175, and but $75 remained due upon it; and that he was entitled to a judgment for the amount paid, less what the machine had depreciated in value. Defendant relies upon Preston v. Whitney, 23 Mich. 260; New Home Sewing Mach. Co. v. Bothane, 70 Id. 443; Johnston v. Whittemore, 27 Id. 463.
In Preston v. Whitney, however, the contract contained no provision for a forfeiture. The piano had been surrendered. One hundred dollars had been paid upon it. The vendor had given to the vendee a note for $70, “ valid as part, pay for a pianoforte of me at retail price,” and suit was. brought upon the note. The defense was that the contract-had been forfeited, and that there was no consideration for the note; but the Court held that the vendor was liable under-such a contract for the excess in amount paid on the piano,, over and above a fair compensation for use, injury, and incidental expenses of regaining possession, and that the note represented this excess. The Court say:
“ Whether it would be competent to provide in such a contract for the forfeiture of all the several installments which might have been paid prior to default, or whether such a provision would be treated as a penalty, according to the principles which distinguish penalties from stipulated damages, is a question upon which we express no opinion.”
Johnston v. Whittemore was an action of trover by the vendor against the purchaser, who had given away the organ to another, and the Court held that, in trover, the measure of damages was the amount of the unpaid note. There the contract had not been declared void. Speaking of a provision relating to forfeiture of all sums paid, the Court say:
“ What might have been the effect of such a provision in-case the contract had been declared void we need not decide,, though it is clear such a provision is not one which the law would enforce, as for stipulated damages, as it is not based upon any idea of just and adequate compensation.”
In Sewing Mach. Co. v. Bothane defendant had purchased a sewing-machine for $65, all but $10 of which had been paid. Defendant failed to pay the $10 when due, and plaintiff,, without demand made, replevied, and the Court held that,, not having declared the contract forfeited by a proper-demand, defendant “had not only a right to hold the-machine, but also an interest in the machine itself, which, if defeasible, was good till defeated.” The Court say, however, that “if plaintiff had disaffirmed the contract by a proper notice, and defendant had failed to pay up the balance due, a question might arise as to her remedy for the return of what she had paid, and how far, if at all, she could insist on a lien till its repayment.”
These cases do not uphold defendant’s contention, except so far as to throw doubt upon the validity of the clause providing for a forfeiture. The question here is whether in case of a transfer of the property by the vendee, or in case of default and rescission, the vendee or the subvendee has a lien upon the property for the amount paid, or rather for the amount which has been paid in excess of the amount which the vendor has a right to retain, or whether the vendee or subvendee in this class of cases has any special property in the article replevied.
Conceding, for the purpose of this case, that the forfeiture clause is or may be unconscionable, and that the courts will not enforce it, has the vendee a right to try that question in a proceeding to obtain a possession to which the contract gives the vendor an unqualified right? We think not. The 'remedy must be sought elsewhere. These contracts enable parties of small means, and without commercial credit, to procure needed articles, which they otherwise could not procure. Any determination which impairs the security which they afford will affect most injuriously the debtor class. Whatever interest the bailee may have before condition broken, that interest is subject to the right of the vendor to declare a rescisión upon a breach or default, and, after such 'declaration, the bailee ceases to have any interest in the property. Whatever equities he may have after the rescission, or the property is retaken, arise, not by virtue of the contract, but because of its rescission. The title is in the vendor. The contract expressly and unqualifiedly gives him the right to retake the property upon condition broken. Is this right, by some importation into the contract, to be made subject to a settlement with the party in default? Who is to determine the question of the value of the vendee’s equity? Who is to say whether this second-hand machinery is worth more than the balance due? How are the expenses of a recovery of possession to be then determined? The result of such a rule^ as is contended for here would be to subject every vendor I seeking to enforce a right to possession, expressly given by the contract, to the costs of that very proceeding. The practical effect of such a ruling would be to give to the party in default a lien upon the property for his payments; something which the parties did not contemplate, and which is inconsistent with a reservation of title. The security of the vendor having the title is not equal to that of a lienor under a chattel mortgage.
The attorney for Olney, Shields & Co. was present at the foreclosure sale, and on the trial gave testimony—
££ Tending to show that, at the time the property described in said chattel mortgage was sold, one H. H. Skinner, whom the testimony on the trial shows was agent for plaintiffs, was present; that at that time said witness was acting as the attorney and agent of Olney, Shields & Co. in foreclosing said chattel mortgage; that said Skinner said nothing to him, and gave him no notice of the fact that Thirlby, Jackson & Co., or the plaintiffs in this suit, were the owners of the property in controversy; and that said witness had no knowledge at that time that said Skinner was agent for said plaintiffs.”
The trial judge instructed the jury upon this point as follows:
££It is claimed on the part of the plaintiffs in this case that Olney, Shields & Co., through their attorney, did have notice of the rights of these parties, and it is denied on the part of the defendant ’that they did have this notice. But it is also claimed on the part of the defendant that the person who was sent by the plaintiffs in this case to forbid the sale upon the chattel mortgage said nothing about this property, and that they did not even know that he represented these parties. Now, even if that was true, that they did not know that he represented those parties, then his being there in the interest of these parties certainly would not mislead the persons who represented Olney, Shields & Co.”
This instruction was correct. There can be no estoppel unless a party is misled to his prejudice by the conduct of the person against whom it is set up, and acts are done-relying upon conduct calculated to mislead. Gorham, v. Arnold, 22 Mich. 247; Palmer v. Williams, 24 Id. 328; Crane v. Reeder, 25 Id. 303; De Mill v. Moffat, 49 Id 125.
The judgment is affirmed, with costs to plaintiffs.
The other Justices concurred.
At the time of the sale plaintiffs and one Holdsworth composed the firm of Thirlby, Jackson & Co., who contracted for the sale of the machine; and at the time this suit was commenced plaintiffs were the owners of the contract and unpaid notes, having acquired the interest of Holdsworth therein. | [
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] |
Grant, J.
Plaintiff entered one of defendant’s cars on Michigan avenue, going west, intending to go to Thirty-third strfeet. He paid his fare, Jive cents, to the conductor. The car he took did not go to Thirty-third street, but .stopped at defendant’s barns, near the railroad crossing. 'This was near the city limits, and it appears that only certain cars went the entire distance. Upon the stoppage of the car the driver unhitched his horses, and was driving them to the opposite end, when plaintiff, perceiving this, •said to the conductor that he desired to go further. To this the conductor replied, “You can go back in this car, .and take the next car up, or get off here, and take the next car up.” Plaintiff decided to get off there. A ■car soon came from the barns and started westward. Some •employé of the road asked him if he was going on that •car, meaning evidently to ask whether he intended to return to the city on the same car. The terminus of the road was but a short distance west of the barns, and plaintiff’s .destination was only five blocks from where he alighted from the first car. Plaintiff replied, “No;” that he had ■come- up on another car. He was then informed that he would have to pay. This he declined to do. Meanwhile the car had gone about two blocks. He was then told that he must pay or get off. One of defendant’s employés then approached him, took him by the lapel of the coat, and thereupon he alighted from the car. No force was in fact used other than this, and plaintiff claims no injury except to his feelings. Plaintiff did not ask for a “ change -off” from the first conductor, nor did the conductor offer him one. Plaintiff brought an action of tort to recover for his alleged unlawful and forcible ejection from the car. The learned court sustained his right of recovery, and •directed a verdict for nominal damages, holding that it was the plaintiff’s duty to pay his fare, and save any injury to his feelings.
It is insisted by the plaintiff that he had a valid contract for carriage from the point where he took the car to Thirty-third street, and that his ejection from the ear was, therefore, unlawful and tortious. If it be granted that he had such a contract, still he had no evidence of it except his own statement, and the question is, what was his duty-under the circumstances? If the conductor was under legal obligation to accept his statement that he had such contract, then his removal was unlawful; otherwise it was not. Counsel has cited no authority, nor have I found one, which holds that a stranger may enter the car of either a railway or street-car company without any evidence that he has paid his fare, and secure passage by his own statement to the conductor that he has previously paid it to some other authorized agent. It is the duty of the passenger to secure evidence of such payment, or to pay when his fare is demanded. The business of such companies cannot be carried on upon any other basis. This certainly is common sense and experience.
Plaintiff’s counsel cites the following authorities in support of his position: Hufford v. Railroad Co., 64 Mich. 631; Hamilton v. Railroad Co., 53 N. Y. 25; Carsten v. Railroad Co., 44 Minn. 454 (47 N. W. Rep. 49); Pennsylvania Co. v. Bray, 125 Ind. 229 (25 N. E. Rep. 439); Railway Co. v. Fix, 88 Id. 384; Railway Co. v. McDonough, 53 Id. 289; Palmer v. Railroad, 3 S. C. 580; Burnham v. Railway Co., 63 Me. 298; Eddy v. Rider, 79 Tex. 57 (15 S. W. Rep. 113); Railroad Co. v. Winter’s Adm’r, 143 U. S. 60 (12 Sup. Ct. Rep. 356). An examination of these cases shows that in all except Hamilton v. Railroad Co. the plaintiffs had procured and showed to the conductors either tickets or stop-over checks, showing that they had paid their fare, and the disputes arose over the right to ride upon such checks or tickets. It is unnecessary to reveiw these authorities.
In Hamilton v. Railroad Co. the plaintiff was transferred from one car to another by the conductor; the first car, for some reason, not going through to the passenger’s destination. It does not appear just how the transfer was .made, but it is quite apparent that when tbe cars were near together the transfer of passengers was made, and the dispute was whether plaintiff was one of the passengers so transferred. In that case no evidence of transfer was required except the knowledge of the second conductor, whose duty it was to see and know who were so transferred. Under those circumstances, the passenger had the undoubted right to insist upon his passage without further payment.
If plaintiff had obtained a “ change off ” or transfer, and lost it, or if he had purchased a ticket and lost it, or if either had been accidently destroyed, it would be absurd to hold that he was entitled to a ride upon stating to the conductor that he had such transfer or ticket, but had lost it, or that it was accidentally destroyed. It is apparent that in the present case plaintiff possessed no other or different right from that which he would have possessed had he procured evidence of payment, which had been lost or destroyed. In the one case his contract to ride would be complete, but the only written evidence he had would be lost; while in the other his contract might be equally good, but he had neither asked nor obtained any evidence thereof, to show to the conductor in charge of the other car or train, which must serve as a voucher in his settlement with the company. It is a novel doctrine that one may compel the agent of another to accept without question, and without opportunity to investigate, his verbal! statement that he has a contract with his principal, and' especially where frequent frauds upon the principal must, inevitably result as the consequence of such a doctrine. It was the plaintiff’s reasonable and clear duty to pay his. fare, and seek redress from the defendant for a violation; of his contract.
In the case of Frederick v. Railroad Co., 37 Mich. 346, Mr. Justice Marston said:
“ There is but one rule which can safely be tolerated with any decent regard to the rights of railroad companies and passengers generally. As between the conductor and passenger, and the right of the latter to travel, the ticket produced must be conclusive evidence, and he must produce it when called upon, as the evidence of his right to the seat he claims."
In Hufford v. Railroad Co. plaintiff paid his fare. The language of the Court in that case, that “it was the duty of the conductor to accept the statement of the plaintiff until he found out it was not true," must be held to apply to the circumstances of that case, where the plaintiff had a ticket. That statement would be most unreasonable in the case of one having no ticket.
Several authorities in support of the rule above stated will be found cited in Frederick v. Railroad Co. The rule, and the reason therefor, are very ably stated in Bradshaw v. Railroad Co., 135 Mass. 407, and are also supported by the following cases: Yorton v. Railway Co., 54 Wis. 234 (11 N. W. Rep. 482), and authorities there cited; Peabody v. O. R. & N. Co., 21 Or. 121 (26 Pac. Rep. 1053); McKay v. Railroad Co., 34 W. Va. 65 (11 S. E. Rep. 737).
Inasmuch as the court should have directed a verdict for the defendant, it is unnecessary to discuss the question of damages.
Judgment affirmed.
The other Justices concurred. | [
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Montgomery, J.
The plaintiff recovered a verdict and judgment against the defendant for unlawfully flowing plaintiff’s lands.
The plaintiff owned and occupied 40 acres in the N. £ of the N. E. ¿ of section 31, and the W. £ of the W. -J-of the N. IV. £ of section 32, in the township of Warren, .Macomb county. Defendant and his brother owned land on section 6, in the township of Hamtramck, adjoining section 31 on the south, and the S. £ of the S. -\ of the S. W. £ of section 31, Warren.
" The plaintiff offered testimony tending to show that near to the dividing line of 31, in Warren, and section 6, in Hamtramck, was a ridge or rise in the ground, which constituted a natural dividing line for the drainage of all the land in the vicinity; that along the line between the "two townships a drain had been constructed some years before, called by plaintiff the “Base-Line Drain,” and by the defendant a “ roadside ditch.” This ditch was shown by the defendant to have existed for many years, and to have become somewhat obstructed; nevertheless, water still continued to flow through it. Two other drains were run into this ditch, the “Fulton Drain,” so called, and the- “ Steffenhagen Drain.” Each extended from a different point westerly of section 31, and emptied into the baseline drain, the one westerly of, and the other at, a point where a culvert had been constructed. The plaintiff's contention was that the waters carried into these drains had been provided for by the base-line drain, and also that the natural drainage of the lands westerly and south of section 31 was to the south and east. The defendant contended that there was an old drain or ditch extending northerly from the culvert before referred to, and intercepting the “Toll Drain,” so called. The Toll drain commenced on section 31, on lands owned by the Jeromes, and extended north-easterly, intercepting another drain, called the “Extension of Bear Creek Drain,” which empties into Clinton river. The plaintiff's testimony tended to show that the defendant caused a ditch to be dug from a point on the base-line drain, where the culvert exists, to the Toll drain, thus turning the waters carried by the Fulton drain and Steffenhagen drain from the base-line ditch into the Toll drain, causing the same to overflow, and to cause the damage to the plaintiff which is complained of.
Defendant claims that the damages were the result of the large flow of water caused by the unusual rains just prior to the flooding in 1889 and 1890, and also claims that the water diverted from his lands was such surface water as naturally came to the land, and such as good husbandry required to be collected and cast upon the lands-of the lower proprietor. The claim is also made by the defendant that the natural course of flowage from his land was in the direction of the Toll drain.
Tlie record contains 70 assignments of error, and all of those which are relied upon in the brief of counsel have been fully considered. We do not consider it necessary, however, to refer to each assignment in detail.
1. After the opening from the base-line ditch to the Toll drain had been made, the plaintiff constructed a dam to stop the flow of water, and was permitted to testify that this was done by permission and under the direction of the township officers. We are unable to see how this testimony could have worked any prejudice to the defendant. It tended to show that the plaintiff had not acted in bad faith or wantonly in constructing the dam, and to some extent bore upon his credibility as a witness; and, while it is true that the township officers had not the power to determine upon rights between the parties, the instructions of the trial judge excluded any such view, and made the determination depend upon other considerations.
2. A witness for the plaintiff was permitted to testify that the Toll drain was not large enough to carry the water conveyed into it by the cut in question, and also that, before the cut was made, it was large enough to convey the waters which would naturally come to it. There was no error in this. It was proper for the witness to express an opinion upon the subject, as no amount of description would so fully possess the jury of the situation:, nor was it a question calling for expert testimony; it wasi but another way of describing the capacity of the ditch.. Laughlin v. Railway Co., 62 Mich. 220.
It appears that, by a slip, the Steffenhagen drain was-, in one of the questions referred to as the “ Stevens Drain,"' but this could easily have been corrected upon cross-examination if it was desired, and it would greatly reflect upon the intelligence of the jury to infer that they were misled by any such error. "We are not disposed to reverse the case on any such ground, particularly as no such specific objection was made to the testimony Avhen offered.
3. The plaintiff offered testimony to show that the baseline ditch had afforded an outlet for the Fulton and Steffenhagen drains, and witness was permitted to testify that, if the obstructions which had formed in the space of 63 rods below the culvert were removed, it would still have afforded an outlet for the waters which were by the cut in question turned into the Toll drain, and thereby, in part, cast upon the plaintiff's lands. There was no error in this; it was only another way of showing the capacity of the baseline ditch. The jury were not led to infer that the defendant could be held responsible for the failure, to clear out the base-line ditch. The court clearly charged as follows:
“ I am asked to say to you by the defendant that the defendant cannot be held liable on account of any want of clearing •out of the base-line ditch. Of course, that is true; he would not be legally called upon to clear it out and keep it open." .
4. The defendant presented various requests, asking the •court, in substance, to charge the folio Aving propositions:
“ That the possessors of lands into which a public drain has been constructed, and for the costs of which the lands have been assessed, have the same right of drainage into such public drain they would have were the drain a natural water-course; that this includes the right to conduct into' it, in the reasonable cultivation and improvement of their lands, not only the surface water thereon naturally draining thereto, but also the surface water naturally draining thereto, brought thereon by the reasonable use, cultivation, and improvement of adjoining lands; and that the exercise of this right creates no liability to a loAver proprietor, who may be thereby injured."
The instruction given by the court upon this subject was as follows:
“ It appears that this Toll drain, and also the Bear Creek drain, were constructed by public authority, and, although all the proceedings to establish and construct them may not have been -strictly according to law, yet they constituted drains having a legal characteristic of natural water-courses, having been established as a neighborhood drain, and the occupants of lands through which they ran have the right to discharge therein the surface water which naturally flows thereto from their lands. They are not limited to drainage and discharge of surface water in the same precise manner as when the land was in a state of nature, unchanged by cultivation or improvement, but they may change and control the natural flow of surface water thereon, and by ditches, or otherwise, accelerate the flow or increase the volume of water which reaches the stream. If they do this in a reasonable way off their own premises, they exercise only a legal right, without incurring any liability to the lower proprietor. They have the right, in the reasonable use, improvement, and cultivation of their lands, to so drain the surface water; but this right is limited to such drainage as will not unreasonably increase the amount of water in the water-course beyond its capacity, causing it to overflow unnaturally onto the lands of others and injure them; and if by artificial ditches the water is collected, and so discharged into a water-course or drain, and so as to cause it to overflow and damage the lower proprietor, then the person doing this, or causing it to be done, is liable for the resulting injury."
We think this instruction was sufficiently favorable to the defendant, in view of the case made by the proofs. The defendant complains of the instructions on the ground that the defendant might be held liable, although the water drained into the Toll drain by the defendant was such only as came to his land from adjoining lands by reason of the usual cultivation and improvement thereof. There might be force in this contention, were it not for the fact that it appears that the water that was by this cut conveyed into the Toll drain included that collected and conveyed by the Fulton and Steffenhagen drains, which, as before pointed out, had for an outlet the base-line drain.
The learned circuit judge, in stating the defendant’s claim, used the following language:
“ He further claims that, whoever was responsible for its
construction [referring to the cut in question], no water was conducted by it onio the plaintiff’s land but what would naturally have gone there had no artificial drains been made, and that this ditch complained of was one which he, as owner of the land along with his brother, had a right to construct, in the proper management and disposal of the surface water coming naturally on his land, and as reasonably called for by good husbandry. * * * If you find, under the above instructions, that this defendant was responsible for the cutting the ditch complained of, leading into the Toll drain, and waters that would not naturally flow there were thereby discharged into the Toll drain and Bear creek, causing the same to overflow and injure the plaintiff’s lands and crops, your verdict should be for the plaintiff. If you find that the defendant caused or procured the ditch to be dug leading from the baseline to the Toll drain, and thereby caused water which would not naturally have flowed across the plaintiff’s land to be discharged there, to his injury, or thereby caused water which would have flowed there naturally, but which had been artificially collected, to be discharged in such an unusual quantity as to be beyond the capacity of the-Toll drain, and overflowing the same on plaintiff’s land, he would be liable for the injury sustained by the plaintiff thereby.”
We think these instructions embody the law as applied to the facts of this case. As was said in Gregory v. Bush, 64 Mich. 44,—
“ One has a right to ditch and drain and dispose of the surface water upon his land as he sees fit; but he is not-authorized to injure, by so doing, the heritage of his. neighbor. He cannot collect and concentrate such waters, and pour them through an artificial ditch in unusual quantities upon his adjacent proprietor.”
5. The evidence of the existence many years ago of the so-called “ Ten-foot Drain,” on the line of the cut in question, did not give the right by prescription to drain an increased amount of water into the Toll drain, to the damage of plaintiff. The charge upon this subject was as follows:
“ You have heard in testimony the fact, as claimed by the-plaintiff [defendant], that there were many years ago artificial ditches constructed across this and other lands in the vicinity, leading into Bear creek; and it is claimed by the plaintiff [defendant] that this Toll drain was constructed upon the lines of one of these ditches, and that the lands of the defendant and his brother had been accustomed for many years— more than 20 years — to be drained by these artificial ditches. If this is so, it would give the right to the occupants of these lands to drain into these ditches, but the right must be exercised in a manner and to the extent that it had been used for this length of time, and any unreasonable or improper diversion of the water into them, exceeding their capacity and beyond what they would carry, and in the manner in which they have carried the water, would be an improper and wrongful act, and, if resulting in injury to the lower proprietor, the parties would be liable.”
This instruction states the law as laid down by this Court in Chapel v. Smith, 80 Mich. 100.
6. It is claimed by defendant’s counsel that there was no evidence connecting the defendant with the digging of the cut in question. An examination of the record discloses that there was testimony which, if believed by the jury, established his connection with the transaction.
A careful examination of' the record discloses no error prejudicial to the defendant, and the judgment will be affirmed, with costs.
The other Justices concurred. | [
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BANDSTRA, EJ.
In this medical malpractice action, defendants appeal the trial court order granting plaintiff Jocelyn Brown’s motion to strike defendants’ affidavit of meritorious defense, MCL 600.2912e (§ 2912e), and to default defendants. The trial court determined that defendants’ expert did not meet the requirements of MCL 600.2169 (§ 2169) of the Revised Judicature Act (RJA), as required by § 2912e, because the expert’s qualifications and credentials, as a physical therapist, did not match those of defendant occupational therapists. We conclude that the provisions of § 2169(l)(a) and (c), requiring that an expert’s qualifications and credentials specifically match that of a defendant health care professional, do not apply in this case because defendants are not physicians. We are reluctantly bound by precedent to also conclude, however, that defendants’ expert does not satisfy the criteria of § 2169(l)(b) and that the witness is not qualified to provide an affidavit of meritorious defense. We affirm the trial court order in this regard. Nonetheless, we further conclude that, at the time the affidavit was filed, defendant reasonably believed that the witness was qualified. Accordingly, we reverse the trial court order granting a default judgment against defendants.
FACTS AND PROCEEDINGS BELOW
This case arises from work-hardening therapy plaintiff underwent with defendant occupational therapists Amy S. Hayes and LeAnn G. Witgen at the Work Improvement Rehabilitation Center (WIC) at Ingham Regional Medical Center. Following carpal tunnel surgery on both of her wrists, plaintiff was referred to the WIC. She alleges that she was directed by defendants to push an 800 pound cart, which resulted in the onset of extreme back pain. Plaintiff asserts that as a result of this injury, she had to undergo corrective care and treatment, including surgery, and that she has been unable to return to work.
Plaintiff filed this medical malpractice action on May 11, 2001. Plaintiffs complaint was accompanied by two affidavits of merit, one signed by a physical therapist and one signed by an occupational therapist. Defendants answered and filed an affidavit of meritorious defense signed by a physical therapist, Ellen Smith.
On May 3, 2004, plaintiff moved for a default against defendants, asserting that defendants’ affidavit of meritorious defense was insufficient under § 2169 because it was not signed by an occupational therapist. Defendants argued in response that § 2169(1) was inapplicable to plaintiffs claims against defendants because occupational therapists are not licensed medical practitioners. Defendants further argued that, even if the affidavit were improper, default was inappropriate pursuant to § 2912e(l) because defense counsel reasonably believed that the affidavit was sufficient. Further, even if those arguments were rejected, defendants argued that default was not a mandatory remedy under applicable case law. The trial court conducted an extensive hearing on the motion, including taking testimony from defense counsel. In addition to the arguments raised earlier, defendants asserted that, although § 2169(1) was inapplicable to this case, § 2169(2) was applicable and that Smith met its requirements. The trial court granted plaintiffs motion for default, rejecting all of defendants’ arguments.
STANDARD OF REVIEW
We review for an abuse of discretion a trial court’s decision regarding a motion to strike a pleading. Belle Isle Grill Corp v Detroit, 256 Mich App 463, 469; 666 NW2d 271 (2003). We also review for an abuse of discretion a trial court’s decision to enter a default. ISB Sales Co v Dave’s Cakes, 258 Mich App 520, 526; 672 NW2d 181 (2003). We also review for an abuse of discretion a trial court’s decision concerning whether a witness is qualified to render an expert opinion and the actual admissibility of the expert’s testimony. Tate v Detroit Receiving Hosp, 249 Mich App 212, 215; 642 NW2d 346 (2002). An abuse of discretion occurs when an unprejudiced person, considering the facts upon which the trial court acted, would conclude that there was no justification or excuse for the ruling made. Novi v Robert Adell Children’s Funded Trust, 473 Mich 242, 254; 701 NW2d 144 (2005).
We review de novo questions of statutory interpretation. Cox v Flint Bd of Hosp Managers, 467 Mich 1, 16; 651 NW2d 356 (2002). Our primary goal is to ascertain and give effect to the intent of the Legislature. Barrett v Kirtland Community College, 245 Mich App 306, 313; 628 NW2d 63 (2001). We may not speculate about the probable intent of the Legislature beyond the words expressed in the statute, and, if a statute provides its own glossary, the terms must be applied as expressly defined. Id. at 313-314.
ANALYSIS
The RJA provides that in an action alleging medical malpractice, a defendant or the defendant’s attorney shall file “an affidavit of meritorious defense signed by a health professional who the defendants’ attorney reasonably believes meets the requirements for an expert witness under section 2169.” MCL 600.2912e(l). At issue in this case is § 2169(1), which provides:
In an action alleging medical malpractice, a person shall not give expert testimony on the appropriate standard of practice or care unless the person is licensed as a health professional in this state or another state and meets the following criteria:
(a) If the party against whom or on whose behalf the testimony is offered is a specialist, specializes at the time of the occurrence that is the basis for the action in the same specialty as the party against whom or on whose behalf the testimony is offered. However, if the party against whom or on whose behalf the testimony is offered is a specialist who is board certified, the expert witness must be a specialist who is board certified in that specialty.
(b) Subject to subdivision (c), during the year immediately preceding the date of the occurrence that is the basis for the claim or action, devoted a majority of his or her professional time to either or both of the following:
(i) The active clinical practice of the same health profession in which the party against whom or on whose behalf the testimony is offered is licensed and, if that party is a specialist, the active clinical practice of that specialty.
(ii) The instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession in which the party against whom or on whose behalf the testimony is offered is licensed and, if that party is a specialist, an accredited health professional school or accredited residency or clinical research program in the same specialty.
(c) If the party against whom or on whose behalf the testimony is offered is a general practitioner, the expert witness, during the year immediately preceding the date of the occurrence that is the basis for the claim or action, devoted a majority of his or her professional time to either or both of the following:
(i) Active clinical practice as a general practitioner.
(ii) Instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession in which the party against whom or on whose behalf the testimony is offered is licensed [MCL 600.2169(1).]
Initially, we note that § 2169(1) is stated in negative terms; it specifies when “a person shall not give expert testimony. .. .” The requirements necessary to avoid that prohibition are two-fold: a person may be qualified as an expert if (1) the person is “licensed as a health professional” and (2) if the criteria listed in subsections a, b, and c are satisfied. We examine each of those requirements separately.
1. LICENSED AS A HEALTH PROFESSIONAL
Defendants argue that the statute’s “licensed as a health professional” requirement means that only persons who have a “license,” such as physical therapists, may qualify as experts, and that persons who are only registered may not. Defendants’ argument in this regard certainly has facial validity and comports with usual principles of statutory construction requiring that we discern and give effect to the Legislature’s intent as expressed in statutory language, giving statutory terms their plain and ordinary meaning. Cox, supra at 18.
However, that approach only applies to “[u]ndefined statutory terms.” Id. In other words, if the Legislature uses terms for which the statutes supply definitions, those statutory definitions are the best indicators of legislative intent and should be used even if they appear contrary to the plain and ordinary meaning of statutory terminology.
The statutory definitions applicable in this case are found in the Public Health Code. A “license” includes both “an authorization... to practice where practice would otherwise be unlawful” and “an authorization to use a designated title which use would otherwise be prohibited. . . .” MCL 333.16106(2). “Registration” is defined as “an authorization only for the use of a designated title ....” MCL 333.16108(2). A person cannot use the title “occupational therapist,” or a similar title, unless the person has been authorized to do so under the Public Health Code. MCL 333.16263(l)(p) and 333.18303. That authorization may be granted if the person is registered under the provisions of the Public Health Code specific to occupational therapists, MCL 333.18301 through MCL 333.18311.
Because occupational therapists cannot call themselves occupational therapists or use a similar title without being registered, registration constitutes a “license” within the meaning of that term as defined by the statute. We thus reject defendants’ argument that only a physical therapist, and not an occupational therapist, may be qualified to give expert testimony under § 2169(1). A physical therapist is certainly “licensed,” MCL 333.17801 through MCL 333.17822, but so is an occupational therapist. Either may provide expert testimony if the criteria listed in subsections a, b, and c are satisfied.
2. CRITERIA IN SUBSECTIONS a, b, AND c
Initially, we find guidance in Cox, in which our Supreme Court considered § 2912a of the RJA, MCL 600.2912a, a statute establishing the standard of care for malpractice actions. Our Supreme Court noted that, under MCL 333.17001(l)(c), a “physician” is defined to be “an individual licensed under this article to engage in the practice of medicine.” Cox, supra at 19. The trial court had concluded that only such a “physician” can be considered either a “general practitioner” or a “specialist” for purposes of § 2912a. Cox, supra at 18-19. Thus, our Supreme Court concluded that the standard of care provisions within § 2912a do not apply to a nurse because § 2912a applies only to a defendant who is either a “general practitioner” or a “specialist” and because a nurse is neither. Cox, supra at 19-20. To determine the applicable standard of care for nurses, it was necessary to turn to the common law. Id. at 20.
Like § 2912a of the RJA construed in Cox, the above-quoted subsections a and c of § 2169(1) of the RJA at issue here employ the terms “specialist” and “general practitioner.” Specifically, an expert seeking to testify for or against a defendant in a medical malpractice action must meet certain criteria if the defendant is a “specialist,” § 2169(l)(a), and different criteria if the defendant is a “general practitioner,” § 2169(l)(c). Under Cox, neither of these sets of criteria can be satisfied unless the defendant is a physician. In other words, subsections a and c of § 2169(1) apply only if the defendant is either a “specialist” or a “general practitioner,” and because those terms only include physicians, those subsections do not apply to nonphysician defendants. Because defendants here are not physicians, subsections a and c do not apply in determining whether Smith is qualified to submit an affidavit of meritorious defense. McElhaney v Harper-Hutzel Hosp, 269 Mich App 488, 497; 711 NW2d 795 (2006).
This same analysis does not apply to § 2169(l)(b) because it is not exclusively limited to general practitioners and specialists. That is the case even though subsection b begins by making its provisions “subject to subsection (c). . . .” That phrase means that the separate rule stated in subsection b applies unless subsection c conflicts with subsection b, in which case subsection c governs. However, in the present case, there is no conflict; subsection c does not apply at all for the reasons stated above. Therefore, the rule of subsection b applies notwithstanding its opening reference to subsection c; its subjection to subsection c is without meaning here.
Thus, contrary to defendants’ argument that § 2169(1) is wholly inapplicable here, subsection b applies even though defendants are not physicians. McElhaney, supra at 497. We turn to the question presented by the parties regarding that subsection, whether Smith is engaged in the “same health profession” as defendants.
The Public Health Code defines a “health profession” as “a vocation, calling, occupation, or employment performed by an individual acting pursuant to a license or registration issued under this article.” MCL 333.16105. Contrary to our dissenting colleague’s reasoning, there is no requirement that an activity be licensed or registered to constitute a “health profession,” as long as the individuals engaged in the activity are licensed or registered. Neither is there anything in the statutory definition to suggest that individuals engaged in the same “vocation, calling, occupation, or employment” are, nevertheless, engaged in different health professions from one another if each of those individuals does not have an identical license or registration. Instead, the language of the “health profession” definition suggests that, as long as the individuals engaged in the same “vocation, calling, occupation, or employment” are acting pursuant to one or another license or registration issued under the Public Health Code, those individuals are engaged in the same “health profession.”
The record here amply demonstrates that defendants, as registered occupational therapists, and Smith, as a licensed physical therapist, are engaged in the same “vocation, calling, occupation, or employment,” i.e., work-hardening therapy. Smith’s uncontested affidavit states that both occupational therapists and physical therapists receive training in work-hardening techniques, that they often work side by side in work-hardening therapy programs, and that there is no difference between the work performed by an occupational therapist and a physical therapist in a work-hardening therapy program. As defendants point out, plaintiff largely acknowledges these facts in her pleadings. Her notice of intent specified that defendants had failed to provide her appropriate “physical therapy” at the WIC and her complaint alleges that defendants “held themselves out to the public as specialists in physical and/or occupational therapy.” Affidavits of merit filed by experts on plaintiffs behalf described the “applicable standard of care for the occupational and/or physical therapist” and, as noted earlier, those affidavits were filed by both an occupational therapist and a physical therapist.
Thus, we would conclude that Smith is engaged in the “same health profession” as defendants under § 2169(l)(b). However, a panel of our Court has concluded that two people cannot be engaged in the “same health profession” for the purposes of this statute unless each has an identical license under the Public Health Code. McElhaney, supra at 497. The McElhaney panel reasoned that, because nurse midwives are licensed under one provision of the Public Health Code and obstetricians/gynecologists are licensed under a different provision, obstetricians/gynecologists do not qualify to testify regarding the standard of care applicable to a nurse midwife. Id. at 496.
The panel reached that result even though it recognized that “it may appear reasonable that a physician with substantial educational and professional credentials should be able to testify about the standard of care of a nurse who works in a closely related field . ...” Id. at 497. We agree with that observation. Similarly, here it appears unreasonable that a physical therapist should not be qualified to testify about the standard of care applicable to an occupational therapist engaged in an occupation like work-hardening therapy where both kinds of professionals are regularly employed together. The McElhaney approach exacts a hardship on both plaintiffs and defendants as they seek to prosecute and defend medical malpractice actions. That hardship is not required under the Public Health Code’s definition of “health profession” as discussed above, a statutory definition not considered by the McElhaney panel.
Nonetheless, we must follow McElhaney. MCR 7.215(J)(1). Therefore, we conclude that Smith is not engaged in the “same health profession” as defendants and is, therefore, not qualified to give expert testimony under § 2169(l)(b). Accordingly, we affirm the trial court order striking the affidavit of meritorious defense filed on defendants’ behalf by Smith.
Nevertheless, we conclude that the trial court erred in deciding that defendants’ counsel filed Smith’s affidavit of meritorious defense without any reasonable belief that she met the requirements of § 2169. Whether defense counsel acted reasonably in this regard is determined by examining the situation as it existed at the time the affidavit was filed. McElhaney, supra at 495-496. The record in this case demonstrates that defense counsel could have filed an affidavit signed by either a physical therapist or an occupational therapist and chose to file Smith’s affidavit after concluding that the “licensed” requirement of § 2169 precluded the qualification of a registered occupational therapist. Although we have today rejected that argument, our decision in this regard is one of first impression and defendant’s contrary conclusion was certainly reasonable at the time it was made. Further, while we conclude today that Smith is not an expert qualified under § 2169, we do so only because we must follow McElhaney. We find merit in defendant’s argument that Smith and defendants are engaged in the same health profession for the purposes of this case. Defendants’ belief that Smith was engaged in the same health profession as defendants at the time her affidavit was filed, long before McElhaney was decided, was reasonable.
The trial court’s erroneous decision on the “reasonable belief” question was the basis for its further decision to enter a default judgment against defendant. We reverse that decision and remand this matter for further proceedings consistent with this opinion. We do not retain jurisdiction.
Fitzgerald, J., concurred.
Plaintiffs’ complaint alleges that defendants Amy S. Hayes and LeAnn G. Witgen engaged in malpractice and that defendants Ingham Regional Medical Center and its Work Improvement Rehabilitation Center are vicariously hable for that malpractice. Accordingly, further references to “defendants” in this opinion refer to Hayes and Witgen.
Plaintiff Donald Brown was dismissed by stipulation of the parties. Further references to “plaintiff” in this opinion refer to Jocelyn Brown.
All the statutory provisions at issue in this appeal are part of the RJA.
The trial court apparently based its decision on both subsections 1 and 2 of § 2169. However, the reasoning of the trial court was that Smith did not qualify because she is a physical therapist and defendants are occupational therapists. That analysis is based on the “match” requirements of subsection 1. The more general language of subsection 2 cannot justify disqualifying an expert simply because the expert’s credentials do not sufficiently match those of the defendant health professional if the criteria listed in subsection 1 do not lead to that result.
We employ Public Health Code definitions to determine the questions raised under the RJA here, following the approach taken by the Supreme Court in Cox. There, the majority relied on Public Health Code defini tions to determine how the RJA applied to nurses. Cox, supra at 19-20. Here, we do the same to determine how the RJA applies to physical therapists and occupational therapists.
Although § 2169 of the RJA contains no definitional provisions, the definition provided in § 5838a(l)(b) of the RJA, MCL 600.5838a(l)(b), which pertains to the accrual of medical malpractice claims, supports our analysis. Section 5838a(l)(b) defines a “licensed health care professional” to include “an individual licensed or registered under . .. the public health code....” That section specifically exempts sanitarians and veterinarians from the application of § 5838a(l), even though sanitarians may be registered, MCL 333.18401 et seq., and veterinarians are licensed, MCL 333.18801 et seq.
The Cox definitions of “specialist” and “general practitioner,” which limit their applicability to physicians, control for all uses of those identical terms within related provisions of the RJA. “ ‘ “Identical language should certainly receive identical construction when found in the same act.” ’ ” Empire Iron Mining Partnership v Orhanen, 455 Mich 410, 426 n 16; 565 NW2d 844 (1997) (citation deleted); see also People ex rel Simmons v Munising Twp, 213 Mich 629, 633; 182 NW 118 (1921).
Although subsections b(¿) and (ii) each establishes an additional expert qualification standard to he used “if [the defendant] is a specialist,” those additional requirements do not negate the standards to be employed in cases like this, in which the defendants are not “specialist” physicians.
Plaintiffs do not contend that Smith fails to meet the other requirements of subsection b regarding the time she spends in therapy activities.
The dissent’s interpretation of the statute improperly constrains the use of experts, in derogation of common-law principles otherwise applicable, more than is required by the statutory language. Nation v WDE Electric Co, 454 Mich 489, 494; 563 NW2d 233 (1997) (Statutes in derogation of the common law are to be given the effect which makes the least rather than the most change in the common law.).
As our dissenting colleague points out, the language of § 2169(l)(b)(i) may be read to suggest that a “health profession” is a particular licensure or registration. This understanding is directly contradicted by the specific and more expansive statutory definition of “health profession” discussed above. Giving deference to that specific definition, we read § 2169(l)(b)(¿) as requiring that an expert must practice in the same “vocation, calling, occupation, or employment” as does a defendant, both by virtue of a license or registration.
If we could conclude that Smith was qualified, that would he a basis for reversing the trial court’s order granting a default judgment against defendants. We reach that same result, however, for reasons discussed below. Therefore, the issue on which we are in disagreement with McElhaney is not “outcome determinative” for the purposes of MCR 7.215(J)(2).
Defendants offered a second affidavit of meritorious defense, signed by an occupational therapist, after plaintiff challenged Smith’s affidavit. | [
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O’CONNELL, J.
Flaintiff appeals as of right an order granting summary disposition for defendant. We reverse. This case concerns the application of the Single Business Tax Act (SBTA), MCL 208.1 et seq., to foreign subsidiary, nonrepatriated earnings that the Internal Revenue Code (IRC), 26 USC 1 et seq., requires plaintiff to report as dividends on its federal income tax returns.
Flaintiff is an international financing company that controls several separate financing corporations in for eign countries. On its federal tax returns in tax years 1994, 1995, and 1996, plaintiff reported over $500 million that its foreign subsidiaries had earned, but had not distributed to plaintiff. Various provisions of the IRC require plaintiff to include the revenues of foreign subsidiaries as dividend income, even if the subsidiaries never actually distributed any money as a dividend. In these years, plaintiff also calculated its adjusted tax base for purposes of Michigan’s SBTA.
After calculating its adjusted tax base, however, plaintiff took advantage of a special provision in the SBTA that saves smaller businesses with low cash flow from paying the full amount of their ordinary tax liability. MCL 208.31(2). The SBTA is designed to create a tax “upon the privilege of doing business and not upon income.” MCL 208.31(3). Because the SBTA taxes the value added by a business, some businesses that run at a loss may face the anomalous predicament of still owing taxes. Stockler v Dep’t of Treasury, 75 Mich App 640, 651-652; 255 NW2d 718 (1977). According to defendant, MCL 208.31(2) was implemented to safeguard smaller businesses that have meager gross incomes and require a large portion of the money they bring in just to sustain operations.' Under MCL 208.31(2), if 50 percent of a business’s “gross receipts” does not exceed the business’s adjusted tax base using the ordinary method of calculation, the provision allows the business to subtract the overage from the adjusted tax base, making it equal to 50 percent of “gross receipts.” The business may then use the new, reduced adjusted tax base to calculate its tax. Id. In other words, under MCL 208.31(2), a business only needs to apply the SBTA tax rate to 50 percent of its “gross receipts” if that amount is smaller than the adjusted tax base it initially calculates.
During the years in question, the amount of plaintiffs actual dividends and earnings from in-state activity were small compared to its adjusted tax base. Without including the undistributed earnings of its foreign subsidiaries from its calculation of “gross receipts,” plaintiff reported to defendant that its adjusted tax base under the ordinary method was more than 50 percent of its “gross receipts” for these years. Simply put, it applied the remedial provision in MCL 208.31(2), reduced its adjusted tax base to equal half of its “gross receipts” calculation, and used the new adjusted tax base to calculate its tax.
Defendant audited plaintiff and notified plaintiff in 1999 of a tax deficiency. Defendant determined that in the relevant tax years plaintiff should have included the deemed dividends it reported on its federal returns in its calculation of “gross receipts.” Defendant determined that if plaintiff had correctly included the deemed dividends, 50 percent of plaintiffs “gross receipts” would not have been less than its original adjusted tax base it calculated, making plaintiff ineligible to reduce its adjusted tax base under MCL 208.31(2). According to defendant’s calculations using the original adjusted tax base for all three years, plaintiff underpaid its taxes by $549,801.37, including interest. Plaintiff paid the additional tax and interest assessed under protest and then sued for a refund.
Plaintiff claimed that defendant misapplied the SBTA and that its treatment of the deemed dividends as actual dividends violates the constitutional ban on discrimination against foreign commerce. The trial court found that the SBTA is essentially a value-added tax that requires inclusion of all business activity to achieve an accurate measure of tax liability. Therefore, it held that the phrase “gross receipts” in MCL 208.31(2) necessarily includes deemed dividends reported to the Internal Revenue Service. The trial court also found that defendant’s calculation of gross receipts did not discriminate against foreign business activity, because all dividends are included in gross receipts without partiality to any particular kind of dividend. The court also gave credence to defendant’s argument that plaintiff was not directly taxed on the deemed dividends, they merely disqualified plaintiff from the privilege of reducing its adjusted tax base.
On appeal, plaintiff argues that the trial court erred when it held that the phrase “gross receipts” included deemed dividends. We agree. “This Court reviews de novo the issue of statutory interpretation because it is a question of law. Review de novo is also appropriate because the Court of Claims decided this issue on plaintiffs motion for summary disposition.” Manske v Dep’t of Treasury, 265 Mich App 455, 457; 695 NW2d 92 (2005) (citations omitted).
As an initial matter, the SBTA clearly states, “A term used in this act and not defined differently shall have the same meaning as when used in comparable context in the laws of the United States relating to federal income taxes in effect for the tax year unless a different meaning is clearly required.” MCL 208.2(2). During the period covered by this appeal, “gross receipts” was not a vague phrase, or an all-encompassing one. Rather, the phrase was explicitly defined as “the sum of sales ... and rental or lease receipts.” MCL 208.7(3) (subsequently expanded by 2000 PA 477). A careful reader will notice that the definition, at least in the relevant tax years, did not include dividends of any type.
However, defendant argues, and plaintiff agrees, that the phrase “gross receipts” includes dividends and interest of financial organizations in accordance with the Tax Tribunal opinion in Genesee Merchants Bank and Trust Co v Dep’t of Treasury, MTT Docket Nos. 35057, 35058 (1979). The parties also agree that plaintiff is a financial organization under the SBTA, so Genesee Merchants applies here. Facing a similar challenge to the inclusion of dividends in a business’s gross receipts, the tribunal in Genesee Merchants held that the Legislature must have intended financial organizations to include dividends in their calculation of “gross receipts,” because the SBTA defines a “financial organization” as “a bank ... or corporation at least 90% of whose assets consist of intangible personal property and at least 90% of whose gross receipts income consists of dividends or interest or other charges resulting from the use of money or credit.” MCL 208.10(4) (emphasis added). We need not and do not address the wisdom of this decision here, and we include the tribunal’s rationale and longstanding policy only to develop the back ground for the case at hand. The parties do not dispute the validity or applicability of Genesee Merchants to plaintiffs received dividends.
Instead, plaintiffs issue is with the application of Genesee Merchants to its deemed dividends, the amount of revenue generated and retained by plaintiffs foreign subsidiaries. These revenues, which are required by the IRC to be reported on plaintiffs federal income tax return, have not been, and may never be, received by plaintiff. Plainly put, plaintiff claims that defendant is essentially taxing it, or at least depriving it of a tax benefit, on the basis of income that it never actually received. Plaintiff notes that part of the reason the IRC treats these revenues more harshly is to discourage foreign commerce in favor of domestic investment. Plaintiff argues that by using the IRC’s legitimate but discriminatory calculation of gross income to determine “gross receipts,” defendant indirectly and unconstitutionally adds to the discrimination against foreign commerce. It correctly argues that if the subsidiaries were domestic corporations, then plaintiff would not automatically receive “deemed dividends” in the form of the domestic corporation’s revenue and would not report any dividends as income until they were actually distributed. Plaintiff argues that this use of deemed dividends also extends the reach of the SBTA to business activity occurring entirely outside the United States, contrary to MCL 208.3(2).
In response, defendant claims that the tax is actually based on the adjusted tax base, not on 50 percent of gross receipts per se, so the fact that “gross receipts” includes foreign deemed dividends does not make the SBTA itself discriminatory. Defendant argues that plaintiff is really complaining about its disqualification for an exception to the general tax, and that the Legislature has the authority to grant or deny tax relief based on the total income, or “gross receipts,” attributable to a business no matter where that income comes from or what accounting measures the IRC uses to compute it. Plaintiff claims that the use of an objective standard, such as total income, to determine whether tax relief is warranted dispels any possibility of discriminating against an out-of-state business. Again, we need not and do not reach this complex, but interesting, issue. Instead, it is enough for our analysis that there are three strong statutorily based reasons to exclude the IRC’s deemed dividends from the SBTA’s computation of “gross receipts.” The first is the very word “receipts,” which denotes “the amount or quantity received.” Random House Webster’s College Dictionary (2001). Although we are not prepared to eliminate every possible accounting practice from the scope of the phrase, the use of the word “receipts” strongly suggests that the Legislature only intended to include within it the money a business actually receives, rather than any amount merely attributable to it. The second reason arises from the statutory language on which the tribunal in Genesee Merchants relied to justify including dividends in “gross receipts.” The statute expressly refers to the “gross receipts” as “income,” and seemingly places “dividends” in the category of “charges resulting from the use of money or credit.” MCL 208.10(4). Whatever the revenue of a foreign subsidiary may be, it is not a parent corporation’s income in any real sense until it is distributed as a dividend, and it certainly is also not a charge for the use of money. Finally, and most persuasively, even the IRC recognizes that its inclusion of a foreign subsidiary’s revenue in a domestic parent corporation’s gross income is an ac counting fiction rather than a fiscal reality. See 26 USC 78. The IRC defines a dividend, in general, as “any distribution of property made by a corporation to its shareholders ....” 26 USC 316. By relying on the IRC to define any terms that the SBTA does not define for itself, the SBTA has adopted this definition of “dividend.” MCL 208.2(2). Because plaintiff has demonstrated that its subsidiaries did not actually distribute the amount of deemed dividends in the relevant tax years, they were not actual dividends for SBTA purposes and are not part of plaintiffs “gross receipts” for those years. It follows that plaintiff was eligible for the reduction of its adjusted tax base, and it is entitled to the refund it claims.
Reversed.
The trial court accurately referred to these earnings as “subpart F” and “foreign gross-up” amounts, but for our purposes the earnings were “deemed,” rather than actual, dividends, so we refer to them collectively as deemed dividends.
This explanation of the facts tracks plaintiffs actions from a legal perspective. From the perspective of an accountant, plaintiff probably took the gross income it reported on its federal return, deducted the amount it claimed in deemed dividends from its foreign subsidiaries, and immediately realized that 50 percent of the remainder would not amount to its adjusted tax base. Next, it simply multiplied 50 percent of the gross receipts by the tax rate and reported that amount as its tax. Although the parties spend a substantial amount of time and energy distinguishing between the perspectives, the result is the same: an amount equal to 50 percent of the business’s “gross receipts” is taxed.
A later amendment, 2000 PA 477, expanded the phrase “gross receipts” to mean “the entire amount received by the taxpayer from any activity whether in intrastate, interstate, or foreign commerce ....”
In fact, defendant correctly points out that all dividends, received or deemed received, foreign or domestic, are deducted from the computation of a business’s adjusted tax base. MCL 208.9(7)(a). | [
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ZAHRA, J.
Defendant appeals by leave granted an order of the circuit court affirming the judgment of the district court, which awarded plaintiff $25,000, plus interest and costs, on his breach of contract action following a bench trial. We are called on to determine whether Michigan’s borrowing statute, MCL 600.5861, applies to this case. Specifically, we are asked to decide whether plaintiffs cause of action accrued “without this state” where defendant, while residing in Michigan, failed to satisfy a contractual obligation to pay plaintiff $25,000 that became due when defendant sold a house that was located in Florida. We hold that plaintiffs breach of contract claim did not accrue “without this state,” and, therefore, Michigan’s borrowing statute does not apply to this case. We affirm.
I. FACTS AND PROCEDURE
Plaintiff and defendant were married in 1976 and subsequently divorced in 1981. In 1993, while defendant was residing in Florida and plaintiff was residing in Georgia, defendant asked plaintiff to loan her $25,000 to cover the cost of attending an out-of-state college. Plaintiff agreed to loan defendant the money. Defendant mailed plaintiff a written agreement that she had drafted and signed. The agreement provided that plaintiff would loan defendant $25,000 without charging any interest. In exchange, defendant agreed to pay off the loan when the first of three events occurred: (1) the sale of defendant’s house in Florida, (2) the refinancing of the Florida house, or (3) on December 1, 1995. Plaintiff sent defendant the funds from Georgia by a wire transfer to defendant’s Florida bank account.
Subsequently, defendant left the state of Florida and on November 21, 1994, while residing in Michigan, defendant sold the Florida house. Defendant did not pay off the loan and did not contact plaintiff to inform him of the sale. Plaintiff eventually contacted defendant in 1995 to obtain satisfaction of the loan, to no avail.
Plaintiff commenced a breach of contract action against defendant on January 20, 2000, in a Michigan district court. Initially, the district court granted summary disposition in favor of defendant on statute of limitations grounds, holding that Michigan’s borrowing statute, MCL 600.5861, required application of Florida’s five-year statute of limitations, which barred plaintiffs claim. The circuit court reversed the grant of summary disposition and remanded for trial after holding that the claim was timely under Michigan’s six-year statute of limitations. After a bench trial, the district court found in favor of plaintiff and awarded him $25,000, plus interest and costs.
Defendant again appealed to the circuit court. The circuit court affirmed the district court’s judgment, but for reasons different than those stated by the district court and for reasons inconsistent with the circuit court’s prior opinion. The circuit court held that the claim accrued in Florida and that, under Michigan’s borrowing statute, plaintiffs claim was subject to Florida’s five-year statute of limitations. However, the circuit court also held that the period of limitations did not commence until December 1, 1995, because defendant never notified plaintiff that the Florida house had been sold, and, therefore, plaintiffs claim was timely filed.
This Court granted defendant leave to appeal.
II. ANALYSIS
Whether a claim is barred by a statute of limitations is a question of law that this Court reviews de novo. DiPonio Constr Co, Inc v Rosati Masonry Co, Inc, 246 Mich App 43, 47; 631 NW2d 59 (2001).
In this case, there are three different states that have ties to the parties and their agreement: (1) Georgia, where plaintiff resides; (2) Florida, where defendant resided at the time defendant entered into the contract; and (3) Michigan, where defendant currently resides, where defendant resided when her obligation became due, and where plaintiff brought his suit. For breach of contract actions, both Georgia and Michigan apply a six-year period of limitations, while Florida applies a five-year period of limitations.
Michigan’s borrowing statute provides, in pertinent part: “An action based upon a cause of action accruing without this state shall not be commenced after the expiration of the statute of limitations of either this state or the place without this state where the cause of action accrued . . . MCL 600.5861. When interpreting a statute, we look first to the language of the statute and give the words used their plain and ordinary meaning. DiBenedetto v West Shore Hosp, 461 Mich 394, 402; 605 NW2d 300 (2000). “If the statutory language is unambiguous, appellate courts presume that the Legislature intended the meaning plainly expressed and further judicial construction is neither permitted nor required.” Atchison v Atchison, 256 Mich App 531, 535; 664 NW2d 249 (2003), citing DiBenedetto, supra at 402.
The phrase “without this state” is not defined in the statute. We observe, however, that the word “without” is commonly defined as: “1. with the absence, omission, or avoidance of; not with; with no or none of; lacking .... 2. free from; excluding.... 3. not accompanied by. . . .” Random House Webster’s College Dictionary (1997). Giving the words used in Michigan’s borrowing statute their plain meaning, it is clear that the borrowing statute applies only if an action accrued without any essential facts giving rise to the cause of action occurring in Michigan.
Consistent with this interpretation, our Supreme Court observed in Parish v B F Goodrich Co, 395 Mich 271, 277-278; 235 NW2d 570 (1975):
Most states have enacted “borrowing statutes” to resolve the possible conflicts of laws that may arise when a plaintiffs claim accrues outside of the forum. Borrowing statutes, including Michigan’s, typically confíne a plaintiff whose claim accrues outside the forum to the limitational period — of the forum or the state where the claim accrued —allowing the least time to commence the action.
We therefore must determine both when and where plaintiffs cause of action accrued. In Michigan, a breach of contract claim accrues “at the time the wrong upon which the claim is based was done regardless of the time when damage results.” MCL 600.5827. To determine what constituted the “wrong upon which the claim is based,” we look first to the parties’ agreement. See Hubbell, Roth & Clark, Inc v Jay Dee Contractors, Inc, 249 Mich App 288, 291; 642 NW2d 700 (2002) (explaining that when determining the intent of the parties, this Court looks to the contract language alone). This agreement, which was drafted by defendant, states: “This debt is to be repaid to ROBERT E SCHERER, JR by LINDA H. SCHERER immediately when the house owned by LINDA H. SCHERER ... is sold or the existing mortgage is refinanced no later than 12/1/95.” On the basis of the parties’ agreement, defendant did not have to pay off the loan until the first of the three specified events occurred. Here, the first event occurred on November 21, 1994, when defendant sold the Florida house. Upon the sale of the house, defendant was immediately obligated to pay plaintiff the money he had loaned to her. Thus, plaintiffs breach of contract claim accrued on November 21, 1994.
Defendant argues that the claim accrued in Florida because defendant’s house was located in Florida. However, when the Florida house was sold, defendant was residing in Michigan. The parties’ agreement did not require defendant to satisfy her obligation to plaintiff with the proceeds from the sale of the Florida house. In fact, the latest payment date contemplated by the parties, December 1, 1995, required the loan to be paid regardless of whether the Florida house was sold or refinanced. Generally, if performance is dependent on a condition precedent, the cause of action does not accrue until the condition is fulfilled and the promise is not performed. 54 CJS, Limitations of Actions, § 168, pp 224-225. Here, the condition was fulfilled when the Florida house was sold, but defendant was residing in Michigan when her obligation to perform on the contract arose. Because defendant was residing in Michigan when she failed to fulfill her promise, the plaintiffs cause of action cannot be said to have accrued “without this state” as contemplated by the borrowing statute. MCL 600.5861. Therefore, the borrowing statute, MCL 600.5861, does not apply and plaintiffs claim was timely filed under Michigan’s six-year statute of limitations for breach of contract. MCL 600.5807(8).
To the extent that the circuit court’s decision was inconsistent with this opinion, we decline to reverse because the right result was reached, albeit for the wrong reason. Tipton v William Beaumont Hosp, 266 Mich App 27, 37-38; 697 NW2d 552 (2005).
Affirmed.
See n 2 of this opinion.
Because defendant failed to notify plaintiff when she sold the Florida house, the circuit court apparently applied a discovery rule to the statute of hmitations by holding that the cause of action did not accrue until December 1, 1995. However, a “ ‘plaintiff need not know of the invasion of a legal right in order for the claim to accrue.’ ” Dewey v Tabor, 226 Mich App 189, 193; 572 NW2d 715 (1997), quoting Harris v City of Allen Park, 193 Mich App 103, 106; 483 NW2d 434 (1992). For breach of contract actions, the statute of limitations begins to run from the date of the breach. Dewey, supra at 193. | [
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COOPER, EJ.
The prosecution appeals, by leave granted, the July 28, 2004, order of the trial court granting defendant’s pretrial motions to exclude certain evidence during his new trial. Specifically, the court prohibited the prosecution from using for impeachment purposes statements made by defendant should defendant waive his Fifth Amendment privilege and take the stand in his own defense. The United States District Court for the Eastern District of Michigan previously found that these statements were elicited in violation of defendant’s Sixth Amendment right to counsel. The trial court also prohibited the prosecution from presenting the testimony of two witnesses whose identity was procured from those inadmissible statements, absent a showing that these witnesses were, in fact, discovered from an independent source. We affirm in part and reverse in part.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 1996, defendant was convicted following a jury trial of two counts of felony murder, two counts of possession of a firearm during the commission of a felony (felony- firearm), and one count of armed robbery. Defendant’s convictions arose from the 1995 murders of James Goff and Aaron McColgan. Kenneth Haywood implicated defendant in the crime. Mr. Haywood told investigating officers that he drove defendant and codefendant, Idell Cleveland, to Mr. McColgan’s home on the night of the murders. Mr. Haywood waited in his car while defendant and Mr. Cleveland went inside. Through the open windows of the house, Mr. Haywood heard Mr. Cleveland say, “Get on the floor.” Mr. Haywood then heard two gunshots, whereupon he fled the scene alone. He went to the police station the following day, after reading of the murders in a local newspaper.
Based on the information provided by Mr. Haywood, officers executed a search warrant at defendant’s home three days after the murders. Thereafter, defendant’s mother retained an attorney to represent her son. The attorney advised defendant to speak with the police in an attempt to negotiate a plea bargain, and accompanied his client when he surrendered to the authorities. Two days later, and following his arraignment, defendant gave three statements to the police detailing his involvement in the crime. Although initially denying any knowledge of Mr. Cleveland’s plans, defendant ultimately admitted that he knew that Mr. Cleveland was armed and intended to rob Mr. Goff and Mr. McColgan. Defendant also admitted that Mr. Cleveland gave him two $50 bills following the robbery. Defendant told officers that two men operating a street sweeper gave him a ride home following the shootings. The prosecution located these witnesses, Anthony Wright and Wilbert Mack, who testified that defendant indicated that he had been at a party and could not find a ride home. They further testified that defendant asked them if they had change for a $50 bill.
In his first appeal, defendant alleged that counsel was ineffective for advising him to speak to the police absent an official offer to enter into a plea agreement. This Court originally affirmed defendant’s convictions. Upon receiving information from the defendant that the challenged interrogations occurred following arraignment, however, the panel reconsidered and remanded for a Ginther hearing. At that hearing, defense counsel testified that he remained with defendant while he waived his Miranda rights and agreed to speak with the police. However, counsel admitted that he did not accompany his client into the interrogations, as he was uncertain whether the officers would have allowed him to be present. Despite counsel’s abandonment of his client, the trial court denied defendant’s motion for a new trial and this Court affirmed. Defendant then filed an application for leave to appeal with the Michigan Supreme Court, which was denied.
The defendant subsequently filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Michigan. Defendant alleged for the first time in that petition that defense counsel’s abandonment during the police interrogations violated his Sixth Amendment right to counsel under United States v Cronic. The federal district court agreed and granted defendant’s writ. The district court found that defendant was completely deprived of the assistance of counsel during a critical stage of the proceedings — the police interrogations following his arraignment. Accordingly, the district court found:
The absence of counsel during the interrogations tainted the whole trial process, as evidenced by the use of Petitioner’s statements at trial. Allowing the State to retry Petitioner with the use of the statements made during the tainted interrogations would lead only to yet another tainted trial. Therefore, the only appropriate remedy is to not allow use of the tainted statements, should the State decide to initiate a new trial in this matter.
Thereafter, the prosecution re-arraigned defendant in November of 2003. Prior to trial, defendant filed a motion to prevent the prosecution from making any use of his statements to the police, even for impeachment purposes. Defendant also sought to prevent the prosecution from introducing the testimony of Mr. Wright and Mr. Mack, as knowledge of their identity was only procured from defendant’s inadmissible statements. The trial court excluded both the statements and any evidence derived therefrom. Based solely on the federal district court’s order, the trial court determined that allowing the prosecution to use the statements for impeachment purposes would taint defendant’s retrial. The trial court also granted defendant’s motion to exclude the testimony of Mr. Mack and Mr. Wright as “fruits” of those improper statements. The court noted, however, that these witnesses could be called at trial, “if the People can provide a foundation that the discovery of these witnesses came from a different source.” This Court subsequently granted the prosecution’s motion for leave to appeal.
II. IMPEACHMENT
The prosecution first contends that the trial court improperly excluded the use of defendant’s statements for impeachment purposes in the event that defendant waives his Fifth Amendment privilege against self-incrimination and takes the stand in his own defense. We review a trial court’s decision to admit or exclude evidence for an abuse of discretion. However, when the trial court’s decision involves a preliminary question of law, we review the issue de novo.
We agree with the federal district court’s determination that the prosecution is prohibited from using defendant’s statements elicited during the post-arraignment interrogations in its case-in-chief. “The Sixth Amendment provides that the accused in a criminal prosecution ‘shall enjoy the right... to have the Assistance of counsel for his defence.’ ” The accused is guaranteed “the right to rely on counsel as a ‘medium’ between him and the State.” This right attaches once formal adversary proceedings are initiated against the defendant, such as at arraignment. Generally, a defendant who alleges that he was denied the effective assistance of counsel must establish that counsel’s errors affected the outcome of his trial. However, the complete deprivation of the assistance of counsel at a critical stage of the adversary proceedings amounts to structural error, and, therefore, prejudice is presumed. The United States Supreme Court has repeatedly found that post-arraignment police interrogations are a critical stage of criminal proceedings at which a defendant is entitled to legal representation. Yet, defense counsel, in this case, purposefully and unreasonably left his client to face the police interrogations alone. The prosecution did not overcome the strong presumption that defendant’s subsequent waiver of his right to counsel was invalid. Accordingly, the prosecution clearly may not use defendant’s statements in its case-in-chief.
While the United States Supreme Court has repeatedly excluded statements elicited in violation of a defendant’s constitutional rights from the prosecution’s case-in-chief, such statements, if otherwise voluntary, are admissible for impeachment purposes. In Walder v United States, the Supreme Court found that the prosecution may not rely on evidence seized in violation of the Fourth Amendment to establish a defendant’s guilt. Yet, the Court found no reason to exclude such evidence for impeachment purposes.
It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can turn the illegal method by which evidence in the Government’s possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths.. ..
... Of course, the Constitution guarantees a defendant the fullest opportunity to meet the accusation against him. He must be free to deny all the elements of the case against him without thereby giving leave to the Government to introduce by way of rebuttal evidence illegally secured by it, and therefore not available for its case in chief. Beyond that, however, there is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the Government’s disability to challenge his credibility.
The United States Supreme Court has similarly found that statements improperly elicited during a custodial interrogation after a defendant invokes the right to counsel may be used for impeachment purposes.
Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury.... Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process... .
The shield provided by Miranda cannot be perverted into a license to use peijury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.
More recently, in Michigan v Harvey, the United States Supreme Court specifically determined that statements improperly elicited in violation of a defendant’s Sixth Amendment right to counsel could be used to impeach his or her testimony on the stand. The Court acknowledged that, as waivers of a defendant’s Sixth Amendment right to counsel are presumptively invalid, evidence obtained following such a waiver is inadmissible to establish a defendant’s guilt. “The prosecution must not be allowed to build its case against a criminal defendant with evidence acquired in contravention of constitutional guarantees and their corresponding judicially created protections. But use of statements so obtained for impeachment purposes is a different matter.” The Court reasoned that the exclusion of “reliable and probative evidence for all purposes” was only necessary when “derived from involuntary statements.”
Nothing on the record suggests that defendant’s statements during these post-arraignment interrogations were involuntary. This Court has found that “[a] confession is involuntary if obtained by any sort of threat or violence, by any promises, express or implied, or by the exertion of any improper influence.” The United States Supreme Court has further found “that coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause... .” Defendant was advised of his Miranda rights in the presence of counsel and signed a waiver form. Defendant does not contend, nor is there any indication on the record, that any police officer intimidated, coerced, or used any other improper method to secure defendant’s statements. Neither the caselaw of this state, nor that from the United States Suprqjne Court, requires the total exclusion of otherwise voluntary statements elicited in violation of a defendant’s Sixth Amendment right to counsel. The exclusion of these statements for impeachment purposes was unwarranted under these circumstances. Accordingly, we reverse that part of the trial court’s order granting defendant’s motion on this ground.
III. DERIVATIVE EVIDENCE
The trial court also determined that the prosecution was precluded from introducing the testimony of Mr. Mack and of Mr. Wright, as their identities were discovered during the improper post-arraignment interrogations. However, the court ruled that the prosecution could present these witnesses if it could establish that it did, in fact, discover their identities from an independent source. Rather than making that determination during the motion hearing, the trial court left the prosecution to its proofs. We agree that the prosecution must make an affirmative showing to support the admission of this evidence prior to calling these witnesses. Yet, we do not qgree that the prosecution must show that it actually discovered these witnesses through independent, legal means. Rather, the prosecution need only show that the identity of these witnesses would have inevitably been discovered through alternate means.
The rule that the tainted “fruit” of unlawful government conduct must be suppressed began with the United States Supreme Court’s opinion in Silverthorne Lumber Co v United States. The exclusionary rule originally applied to tangible evidence obtained in violation of the Fourth Amendment and any incriminating evidence derived therefrom. In Wong Sun v United States, the Supreme Court extended the rule to further exclude indirect evidence derived from an illegal search. From the genesis of the exclusionary rule, however, there were exceptions. Illegally obtained evidence does not “become sacred and inaccessible”; rather, these facts, if discovered by independent means, can be placed before the jury as substantive evidence. In Wong Sun, the Court noted the lessened need for exclusion when the connection between the illegally seized evidence and the underlying impropriety was attenuated.
We need not hold that all evidence is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”
This exception to the exclusionary rule is known as the “independent source doctrine.”
The United States Supreme Court has not limited the application of the exclusionary rule, or its exceptions, to violations of a defendant’s Fourth Amendment right to be free from illegal searches and seizures. The Court has since applied the rule to violations of a defendant’s Sixth Amendment right to counsel and Fifth Amendment privilege against self-incrimination. In Michigan v Tucker, however, the Supreme Court declined to extend the exclusionary rule to statements procured in violation of a defendant’s right to counsel during a custodial interrogation. In Tucker, the defendant was advised that he had the right to counsel during his custodial interrogation, but was not advised that counsel could be appointed. The Court found that the defendant voluntarily spoke with the police, regardless of the imperfect instruction of rights. During the interrogation, the defendant named an alibi witness, who ultimately further incriminated the defendant. The Court found the exclusionary rule of Wong Sun inapplicable in cases involving a violation of Miranda’s “prophylactic” protection of a defendant’s Fifth Amendment rights. The Court did exclude the defendant’s statements from the prosecution’s case-in-chief, however, the Court determined that, where officers act in good faith, the exclusion of illegally obtained evidence would not deter future misconduct. The Court further declined to exclude the testimony of the defendant’s “alibi” witness, as that witness was not subjected to “custodial pressures.” Accordingly, the Court found that his independent testimony was trustworthy and therefore admissible against the defendant.
Tucker is inapplicable in this case, however, as defendant was clearly deprived of his Sixth Amendment right to counsel following the initiation of formal adversary proceedings. Therefore, pursuant to Silverthorne and Wong Sun, the prosecution may not present the testimony of Mr. Mack and Mr. Wright absent an exception to the exclusionary rule. While the prosecution is not required to show that it did, in fact, discover these witnesses through independent means, the prosecution must show that their independent discovery was inevitable.
In United States v Ceccolini, the Supreme Court noted that it would invoke the exclusionary rule “with much greater reluctance” where the illegally obtained, derivative evidence was live testimony. The Court did not name the doctrine upon which it relied. However, the Court reasoned that live witnesses are more likely to be inevitably discovered by alternate, legal means.
The greater the willingness of the witness to freely testify, the greater the likelihood that he or she will be discovered by legal means .... Witnesses can, and often do, come forward and offer evidence entirely of their own volition. And evaluated properly, the degree of free will necessary to dissipate the taint will very likely be found more often in the case of live-witness testimony than other kinds of evidence. The time, place and manner of the initial questioning of the witness may be such that any statements are truly the product of detached reflection and a desire to be cooperative on the part of the witness. And the illegality which led to the discovery of the witness very often will not play any meaningful part in the witness’ willingness to testify.
In Nix v Williams, the Court specifically extended the “inevitable discovery doctrine” as an exception to the exclusionary rule. In Nix, officers elicited information from the defendant in the absence of counsel while being transported to another jurisdiction. The information concerned the location of his victim’s body. Without defendant’s statement, the body would have been discovered through independent search efforts within three to five hours. The Court found that the exclusion of illegally obtained evidence should not place the government in a worse position than if counsel had been present during the interrogation.
Exclusion of physical evidence that would inevitably have been discovered adds nothing to either the integrity or fairness of a criminal trial. The Sixth Amendment right to counsel protects against unfairness by preserving the adversary process in which the reliability of proffered evidence may be tested in cross-examination....
Nor would suppression ensure fairness on the theory that it tends to safeguard the adversary system of justice. To assure the fairness of trial proceedings, this Court has held that assistance of counsel must be available at pretrial confrontations where “the subsequent trial [cannot] cure [an otherwise] one-sided confrontation between prosecuting authorities and the uncounseled defendant.” Fairness can be assured by placing the State and the accused in the same positions they would have been in had the impermissible conduct not taken place. However, if the government can prove that the evidence would have been obtained inevitably and, therefore, would have been admitted regardless of any overreaching by the police, there is no rational basis to keep that evidence from the jury in order to ensure the fairness of the trial proceedings. In that situation, the State has gained no advantage at trial and the defendant has suffered no prejudice. Indeed, suppression of the evidence would operate to undermine the adversary system by putting the State in a worse position than it would have occupied without any police misconduct. . . .
The United States Supreme Court recently granted certiorari in Hudson v Michigan to consider whether evidence discovered during an illegal search following a violation of the knock-and-announce rule could be otherwise admissible under the inevitable discovery doctrine. While both this case and Nix involved a violation of a defendant’s Sixth Amendment right to counsel, the inevitable discovery doctrine has its roots in Fourth Amendment jurisprudence. Therefore, the Court’s decision in Hudson could potentially have a more far-reaching effect. However, at this time, we remain bound by Nix to apply the inevitable discovery doctrine.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
FORT Hood, J., concurred.
After defendant exhausted his state appellate relief, he successfully petitioned the federal district court for a writ of habeas corpus.
MCL 750.316.
MCL 750.227b.
MCL 750.529.
This Court affirmed Mr. Cleveland’s convictions of two counts of first-degree murder, MCL 750.316; two counts of felony-firearm, MCL 750.227b; and one count of armed robbery, MCL 750.529. People v Cleveland, unpublished opinion of the Court of Appeals, issued June 17, 1997 (Docket No. 194236).
A panel of this Court previously indicated that “defendant admitted that he supplied codefendant with the murder weapon and knew of codefendant’s intent to rob the victims.” People v Frazier (After Remand), unpublished opinion of the Court of Appeals, issued April 21, 2000 (Docket No. 193891) (Frazier III), slip op at 6 n 2. This description of defendant’s statement is inaccurate. Defendant stated that he knew that Mr. Cleveland intended to rob Mr. Goff and Mr. McColgan “when he told me to get his gun.” Defendant never indicated that he provided the murder weapon.
People v Frazier, unpublished opinion of the Court of Appeals, issued February 27, 1998 (Docket No. 193891) (Frazier I) (vacated by an order entered May 6, 1998).
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
People v Frazier (On Rehearing), unpublished opinion of the Court of the Appeals, issued August 7,1998 (Docket No. 193891) (Frazier II). The panel also vacated defendant’s conviction of armed robbery on double jeopardy grounds.
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
Frazier III, supra. The panel focused solely on counsel’s strategic decision to seek a plea bargain for his client.
People v Frazier, 464 Mich 851 (2001) (Frazier IV) (Kelly and Cavanagh, JJ., dissenting).
United States v Cronic, 466 US 648; 104 S Ct 2039; 80 L Ed 2d 657 (1984).
Frazier v Berghius, unpublished opinion of the United States District Court for the Eastern District of Michigan, issued August 6,2003 (Docket No. 02-CV-71741-DT) (Frazier V).
Id. at 12-13.
16 Id. at 13-14.
In the current trial, the prosecution charged defendant with two counts of open murder (rather than felony minder), MCL 750.316; two counts of felony-firearm, MCL 750.227b; and one count of armed robbery, MCL 750.529.
The trial court also ruled upon several pretrial, evidentiary motions that are not at issue in this appeal.
People v Frazier, unpublished order of the Court of Appeals, entered July 30, 2004 (Docket No. 256986).
People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999).
Id.
People v Russell, 471 Mich 182, 187; 684 NW2d 745 (2004), quoting US Const, Am VI. See also Const 1963, art 1, § 20 (a criminal defendant “shall have the right... to have the assistance of counsel for his ... defense”).
Maine v Moulton, 474 US 159, 176; 106 S Ct 477; 88 L Ed 2d 481 (1985).
Michigan v Jackson, 475 US 625, 629-630; 106 S Ct 1404; 89 L Ed 2d 631 (1986); Kirby v Illinois, 406 US 682, 689; 92 S Ct 1877; 32 L Ed 2d 411 (1972).
Strickland v Washington, 466 US 668, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984).
Cronic, supra at 659; People v Willing, 267 Mich App 208, 224; 704 NW2d 472 (2005), citing Russell, supra at 194 n 29, and People v Anderson (After Remand), 446 Mich 392, 405; 521 NW2d 538 (1994).
Jackson, supra at 629-630; Brewer v Williams, 430 US 387, 400-401; 97 S Ct 1232; 51 L Ed 2d 424 (1977), citing Massiah v United States, 377 US 201; 84 S Ct 1199; 12 L Ed 2d 246 (1964).
See Michigan v Harvey, 494 US 344, 349; 110 S Ct 1176; 108 L Ed 2d 293 (1990), citing Jackson, supra (“[0]nce a criminal defendant invokes his Sixth Amendment right to counsel, a subsequent waiver of that right — even if voluntary, knowing, and intelligent under traditional standards — is presumed invalid if secured pursuant to police-initiated conversation,” and may not be admitted as substantive evidence in the prosecutor’s case-in-chief.).
Walder v United States, 347 US 62, 64-65; 74 S Ct 354; 98 L Ed 503 (1954).
30 Id. at 65.
Oregon v Hass, 420 US 714; 95 S Ct 1215; 43 L Ed 2d 570 (1975); Harris v New York, 401 US 222; 91 S Ct 643; 28 L Ed 2d 1 (1971). We note that previous opinions of the Supreme Court appeared to consider Miranda to he merely a “prophylactic” protection of a defendant’s Fifth Amendment rights. The Supreme Court has since made clear that the protections in Miranda are themselves constitutionally based. Dickerson v United States, 530 US 428; 120 S Ct 2326; 147 L Ed 2d 405 (2000).
32 Harris, supra at 225-226.
Harvey, supra.
Id. at 349.
Id. at 351.
Id., citing New Jersey v Portash, 440 US 450, 459; 99 S Ct 1292; 59 L Ed 2d 501 (1979). See also People v Stacy, 193 Mich App 19, 24-25; 484 NW2d 675 (1992), quoting People v Paintman, 139 Mich App 161, 169-170; 361 NW2d 755 (1984) (“ ‘[Statements taken in violation of a defendant’s right to counsel, if voluntary, may be used for impeachment purposes although they could not have been used in the prosecutor’s case-in-chief.’ ”).
Paintman, supra at 171, citing Malloy v Hogan, 378 US 1, 7; 84 S Ct 1489; 12 L Ed 2d 653 (1964).
Colorado v Connelly, 479 US 157, 167; 107 S Ct 515; 93 L Ed 2d 473 (1986).
See Frazier II, supra at 4-5. The panel in that case found that a detective mistakenly informed defendant that any statements made during his polygraph examination would be inadmissible in court. However, officers corrected that error prior to administering the exam. Id. at 5.
We note that, prior to Michigan v Haney, the Michigan Supreme Court had not made a definitive decision whether the prosecution could impeach a defendant with his prior inconsistent statements elicited in violation of his right to counsel. See People v Esters, 417 Mich 34; 331 NW2d 211 (1982) (in which three justices found that such statements could he used for impeachment purposes, while three others would prohibit the use of the statements for any purpose). See also People v Gonyea, 421 Mich 462; 365 NW2d 136 (1984) (the justices reached a similar three-three split, with Justice Cavanagh finding that the statement was inadmissible for any purpose under the facts of that case alone).
We further believe that the trial court must make this determination at a separate hearing outside the presence of the jury.
Silverthorne Lumber Co v United States, 251 US 385; 40 S Ct 182; 64 L Ed 319 (1920).
Id. at 392.
Wong Sun v United States, 371 US 471, 484-485; 83 S Ct 407; 9 L Ed 2d 441 (1963).
Silverthome, supra at 392. See also United States v Ceccolini, 435 US 268, 274; 98 S Ct 1054; 55 L Ed 2d 268 (1978), quoting Nardone v United States, 308 US 338, 341; 60 S Ct 266; 84 L Ed 2d 307 (1939).
46 Wong Sun, supra at 487-488, quoting Maguire, Evidence of Guilt, 221 (1959).
See United States v Wade, 388 US 218, 227, 240-241; 87 S Ct 1926; 18 L Ed 2d 1149 (1967) (holding that an identification based upon a pretrial lineup, conducted without the benefit of counsel, must be suppressed unless the prosecution can establish that a witness’s in-court identification was based upon independent observations).
See Kastigar v United States, 406 US 441, 460-461; 92 S Ct 1653; 32 L Ed 2d 212 (1972) (holding that evidence obtained in violation of a defendant’s Fifth Amendment privilege against self-incrimination must be suppressed unless the prosecution can establish that it “had an independent, legitimate source for the disputed evidence”). See also Murphy v Waterfront Comm of New York Harbor, 378 US 52, 79; 84 S Ct 1594; 12 L Ed 2d 678 (1964), overruled in part on other grounds United States v Balsys, 524 US 666; 118 S Ct 2218; 141 L Ed 2d 575 (1998).
Michigan v Tucker, 417 US 433; 94 S Ct 2357; 41 L Ed 2d 182 (1974).
Id. at 435. Defendant was arrested and interrogated before the United States Supreme Court issued its opinion in Miranda v Arizona. However, his trial occurred after that decision.
Id. at 450.
Id. at 436-437.
Id. at 444. The Court has not extended the exclusionary rule to such situations since rendering its opinion in Dickerson, supra.
Tucker, supra at 447-448.
Id. at 449.
Id.
Ceccolini, supra at 280.
58 Id. at 276-277.
Nix v Williams, 467 US 431; 104 S Ct 2501; 81 L Ed 2d 377 (1984).
Id. at 448-449.
Id. at 444.
62 Id. at 446-447 (internal citations omitted).
Hudson v Michigan,_US_; 125 S Ct 2964; 162 L Ed 2d 886 (2005).
See Fitzpatrick v New York, 414 US 1050, 1051; 94 S Ct 554; 38 L Ed 2d 338 (1973) (dissent by White, J.) (questioning the wisdom of extending the independent source doctrine to “hypothetical,” that is, “inevitable,” discoveries incident to an illegal search). | [
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NEFF, J.
Defendant appeals as of right his jury trial convictions of assault with intent to commit murder, MCL 750.83, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. Defendant was sentenced to 15 to 30 years’ imprisonment for the conviction of assault with intent to commit murder, and to a consecutive two-year term for the felony-firearm conviction. We affirm.
i
This case resulted from the October 29, 2003, shooting of Vertdell Burnette on Kalamazoo’s east side. Defendant was identified as the shooter, although testimony concerning the shooting varied widely and key witnesses were reluctant to testify or provide details of the shooting.
The shooting apparently was related to an ongoing dispute between certain residents of Kalamazoo’s north and east sides. According to Burnette, who lived on Kalamazoo’s north side, he went to the east side with his friend Chris on the afternoon of October 29. As they walked on the sidewalk, the two were approached from behind by a group of male teenagers, one of whom was wearing brass knuckles. When Burnette turned around, he was hit in the chin, and someone in the group told the two to get off the east side. As Burnette was running to a parked car, he was shot in the back of his left leg and lower back.
Burnette could not identify the shooter. Although numerous witnesses testified at trial, the only eyewitness was a friend of defendant’s, Kendrick Troup, who refused to testify about defendant’s involvement in the shooting, stating that he did not want to incriminate defendant and their mutual friends. In a separate hearing concerning his refusal to testify, however, Troup admitted that he feared retribution if he testified, particularly because certain individuals were present in the courtroom. After the hearing, and consulting with counsel, Troup did not resume his testimony. The trial court subsequently ruled that Troup’s partial direct examination would be stricken from the record and that his earlier statement to the police would be admitted as evidence under MRE 804(b)(6).
n
Defendant argues that he was denied his Sixth Amendment right of confrontation because the trial court admitted into evidence the prior testimonial statement of eyewitness Troup, who was the prosecution’s primary witness against defendant. Defendant contends that the admission of Troup’s statement to Officers Hicok and Kloosterman was error because the prosecution did not prove that defendant forfeited his Confrontation Clause rights by procuring the unavailability of Troup as a witness under MRE 804(b)(6). Further, the error was not harmless and, therefore, requires reversal of his conviction. We disagree.
A
The decision to admit or exclude evidence is reviewed for a clear abuse of discretion. People v Bauder, 269 Mich App 174, 179; 712 NW2d 506 (2005). Preliminary questions of law, such as whether a rule of evidence, constitutional provision, or statute precludes the admission of the evidence, are reviewed de novo. People v Katt, 468 Mich 272, 278; 662 NW2d 12 (2003).
An abuse of discretion exists only if an unprejudiced person, considering the facts on which the trial court acted, would say that there is no justification or excuse for the trial court’s decision. Bauder, supra at 179. “A trial court’s decision on a close evidentiary question ordinarily cannot be an abuse of discretion.” Id. However, an abuse of discretion occurs when a trial court admits evidence that is inadmissible as a matter of law. Katt, supra at 278.
Errors alleging constitutional violations may require heightened review:
When constitutional error occurs and is preserved, as defendant here alleges the admission of hearsay in violation of the right of confrontation to be such an error, a new trial must be ordered unless it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error. On the other hand, ordinary trial error, even if preserved, will merit reversal only when, in the context of the entire trial, it affirmatively appears more probable than not that the error was outcome determinative. [Bauder, supra at 179-180. (citations omitted.)]
B
MRE 804(b)(6) provides an exception to the hearsay rule for a statement by a declarant made unavailable by the opponent. If the declarant is unavailable as a witness, the rule allows admission of “[a] statement offered against a party that has engaged in or encouraged wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.” MRE 804(b)(6). MRE 804(b)(6), adopted in 2001, is nearly identical to FRE 804(b)(6), except that the Michigan exception applies if a party “has engaged in or encouraged wrongdoing” rather than “engaged or acquiesced in wrongdoing” (emphasis added). These rules are a codification of the common-law equitable doctrine of forfeiture by wrongdoing, first recognized in Reynolds v United States, 98 US 145; 25 L Ed 244 (1879). Bauder, supra at 182-183. Under the doctrine, a defendant forfeits his or her constitutional right of confrontation if a witness’s absence results from wrongdoing procured by the defendant:
The Constitution gives the accused the right to a trial at which he should be confronted with the witnesses against him; but if a witness is absent by [the accused’s] own wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he has kept away....
[T]he rule has its foundation in the maxim that no one shall he permitted to take advantage of his own wrong.... [Reynolds, supra at 158-159; see Bauder, supra at 183.]
Although the Michigan and federal rules codify the rule of forfeiture by wrongdoing, the equitable doctrine “is not dependent on them for its application because the Sixth Amendment’s protections are not dependent on ‘the vagaries of the rules of evidence.’ ” Bauder, supra at 184. quoting Crawford v Washington, 541 US 36, 61; 124 S Ct 1354; 158 L Ed 2d 177 (2004), and citing United States v Garcia-Meza, 403 F3d 364, 370 (CA 6, 2005).
i
In support of his arguments on appeal, defendant contends that he had a constitutional right to confront the prosecution’s primary witness against him, citing Crawford. It is not clear whether defendant is asserting a right of confrontation independent of and despite the proper admission of hearsay evidence under MRE 804(b)(6). To the extent that defendant argues that Crawford requires an opportunity for cross-examination even if the defendant has by wrongdoing procured the absence of a witness, we disagree.
In Crawford, the Supreme Court
held that the Confrontation Clause does not permit the admission in evidence of ex parte “testimonial” statements, .which the Court did not precisely define, unless the accused has had a prior opportunity for cross-examination and the declarant is unavailable. “Where testimonial evidence is at issue,. .. the Sixth Amendment demands what the common law required: unavailability and a prior op portunity for cross-examination.” [Bauder, supra at 180-181, quoting Crawford, supra at 68.]
In our view, in deciding Crawford, the United States Supreme Court did not intend to deem testimonial hearsay evidence, such as that in the present case, inadmissible on the basis of a witness’s unavailability and the lack of a prior opportunity for cross-examination if the defendant is responsible for procuring the witness’s unavailability. In Crawford, the Court overruled its earlier decision in Ohio v Roberts, 448 US 56, 66; 100 S Ct 2521; 65 L Ed 2d 597 (1980), which held that a hearsay statement against a criminal defendant was admissible if the witness was unavailable and the statement bore adequate “indicia of reliability” by either falling within a “firmly rooted hearsay exception,” or because it possessed “particularized guarantees of trustworthiness.” In discussing the Confrontation Clause and Roberts, Justice Scalia stated:
The Roberts test allows a jury to hear evidence, untested by the adversary process, based on a mere judicial determination of reliability. It thus replaces the constitutionally prescribed method of assessing reliability with a wholly foreign one. In this respect, it is very different from exceptions to the Confrontation Clause that make no claim to be a surrogate means of assessing reliability. For example, the rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds; it does not purport to be an alternative means of determining reliability. See Reynolds[supra at 158-159]. [Crawford, supra at 62.]
These statements indicate that the reasoning in Crawford does not apply to the circumstances at issue in this case. “If. . . the witness is only unavailable to testify because the defendant has killed or intimidated her, then the defendant has forfeited his right to confront that witness.” United States v Cromer, 389 F3d 662, 679 (CA 6, 2004). Defendant’s constitutional right to confrontation is waived under the doctrine of forfeiture by wrongdoing if hearsay testimony is properly admitted because the declarant’s unavailability was procured by defendant’s wrongdoing.
2
Defendant argues that Michigan should adopt a clear and convincing evidence standard, rather than a preponderance of the evidence standard, in considering the admission of evidence under MRE 804(b)(6). We find no basis for applying the stricter clear and convincing evidence standard.
The notes of the advisory committee on the 1997 amendments of the Federal Rules of Evidence indicate that “[e]very circuit that has resolved the question has recognized the principle of forfeiture by misconduct, although the tests for determining whether there is a forfeiture have varied.” The notes indicate that the Second, Sixth, Eighth, and Tenth circuits all apply the preponderance of the evidence standard, while the Fifth Circuit applies the clear and convincing evidence standard. The notes further state, “The usual Rule 104(a) preponderance of the evidence standard has been adopted in light of the behavior the new Rule 804(b)(6) seeks to discourage.”
In Steele v Taylor, 684 F2d 1193, 1202-1203 (CA 6, 1982), the Sixth Circuit Court of Appeals stated:
Our Court has developed such a preponderance standard for trial judges in making preliminary findings of fact on the admissibility of extra-judicial statements under the co-conspirator exception. Since the question of admissibility of such statements under the co-conspirator exception is equivalent to a ruling on their admissibility under the confrontation clause, we see no logical reason to impose a higher standard on the states in making preliminary findings on procurement in connection with rulings on the admissibility of similar extra-judicial statements. [Citations omitted.]
Our Supreme Court addressed the trial court’s role in determining the admissibility of evidence in People v Vega, 413 Mich 773, 778-780; 321 NW2d 675 (1982). The Court noted that MRE 104, which is identical to FRE 104, provides that the trial judge is to determine the conditions for the admissibility of evidence, including preliminary questions of admissibility, and held that the trial judge should use the preponderance of the evidence standard to determine whether the underlying conspiracy was proven before admitting statements of coconspirators under MRE 801(d)(2)(E). The Court noted that although Michigan had traditionally used a “prima facie” evidentiary standard to determine admissibility under the coconspirator exception, a higher standard, preponderance of the evidence, was evolving under FRE 104. Vega, supra at 782. We find no basis for deviating from the preponderance of the evidence standard generally applicable to preliminary questions of admissibility.
Defendant cites People v Geraci, 85 NY2d 359, 367; 625 NYS2d 469; 649 NE2d 817 (1995), in which the New York Court of Appeals adopted the clear and convincing evidence standard for the admission of such hearsay evidence in grand jury proceedings because it is the “more exacting standard, which is the one most protective of the truth-seeking process,” and reasoned that this standard “best recognizes the gravity of the interest at stake and most effectively balances the need to reduce the risk of error against the practical difficulties of proving witness tampering.” However, we find the reasoning in Geraci unconvincing in light of over whelming support for the use of the preponderance of the evidence standard in both state and federal courts.
We are also unpersuaded by defendant’s argument that Michigan’s rejection of the less stringent federal rule, that one merely “acquiesce” in the wrongdoing of another, is support for the similar adoption of the stricter clear and convincing evidence standard. To the contrary, by adopting a stricter requirement within the rule itself, Michigan has addressed any desired distinction from the federal rule, and any further obstacle to its application would defeat the intended balancing of the interests at stake.
3
Defendant argues that even if the preponderance of the evidence standard applies, the prosecution failed to establish that defendant engaged in or encouraged wrongdoing intended to procure Troup’s unavailability as a witness. We find no error requiring reversal.
As noted, Troup was an eyewitness who identified defendant as the person who shot Burnette. Troup’s statement was made to officers Hicok and Kloosterman, in Kloosterman’s office at Kalamazoo Central High School.
Although, as noted above, MRE 804(b)(6) differs slightly in language from the federal rule, the general approach to determining admissibility under either rule would be the same. Accordingly, “[t]o admit a statement against a defendant under the rule,... the government must show (1) that the defendant engaged [in or encouraged] wrongdoing, (2) that the wrongdoing was intended to procure the declarant’s unavailability, and (3) that the wrongdoing did procure the unavailability.” United States v Scott, 284 F3d 758, 762 (CA 7, 2002).
In the present case, there appears to be no disagreement that Troup refused to testify about defendant’s role in the shooting because of threats and fear of retribution. However, because there was no evidence that defendant himself directly threatened Troup, the key dispute is whether the evidence of indirect threats established that defendant “engaged in or encouraged wrongdoing.” MRE 804(b)(6). Given Troup’s initial testimony in court, subsequent statements by Troup and Officer Johnson during a separate hearing concerning Troup’s refusal to testify, and other evidence before the court, we find no error in the court’s determination that defendant engaged in or encouraged wrongdoing. There was ample evidence of the threats to Troup to prevent him from testifying against defendant and of the practice of witness intimidation by persons affiliated with the East Side 100 gang, who were the source of Troup’s intimidation.
In the courtroom, Troup declined to testify further after initially providing details of the events surrounding the shooting. However, in a separate hearing in chambers to determine appropriate courtroom procedures to secure Troup’s testimony, the court heard statements under oath from Troup and Officer Johnson, who had investigated the threats against Troup. Troup testified that he had received word that Shawn Lockett, defendant’s cousin, would kill him if Lockett saw him testifying in court, which was one of at least three death threats Troup received. He was also afraid that two female relatives of Lockett, who were cousins of defendant and were in the courtroom, would relay Troup’s testimony to Lockett. Troup stated that the girls and Lockett were members of the East Side 100 gang. He also acknowledged that defendant was a member of the gang, which added to his reluctance to testify. After leaving the hearing with his mother to consult with counsel provided through the court, Troup refused to testify further.
The court then heard testimony from Officer Johnson, who testified that sometime in the preceding weekend, Troup’s mother called him and reported that a person named Philip, who was a member of the East Side 100 gang, came to her home and indicated that “they” had received a letter from defendant telling them to come and fight Troup to stop him from testifying. Officer Johnson stated that on the morning of the hearing, Troup identified the visitor as Philip Johnson in a photo lineup; however, Troup was afraid that if Officer Johnson took any action concerning Philip’s threat, it would only exacerbate Troup’s problems with the East Side 100 gang. Officer Johnson testified that another witness, Michael Lasenby, also received threats from individuals associated with the East Side 100 gang about his testimony, and that the East Side 100 gang has a history of involvement with other violent crime investigations, including shootings between the feuding north side and east side groups. Defense counsel acknowledged that Lockett had been charged with intimidating a witness in another trial reportedly involving a defendant who was one of the leaders of the East Side 100 gang, although he was not bound over on the charges.
Defendant takes issue with the fact that the court relied on testimony from Officer Johnson concerning Phillip Johnson’s threat and the alleged letter from defendant, rather than on direct testimony from Troup or his mother. However, under the circumstances of this case, we do not find that the lack of direct evidence precludes a finding of defendant’s wrongdoing, particularly in light of the evidentiary rule’s purpose.
“Rule 804(b)(6)... is an attempt to respond to the problem of witness intimidation whereby the criminal defendant, his associates, or friends through one means or another, often a simple telephone call, procures the unavailability of the witness at trial and thereby benefits from the wrongdoing by depriving the trier of fact of relevant testimony of a potential witness.” Anno: Construction and application of Fed Rules Evid Rule 804(b)(6), 28 USCA, hearsay exception based on unavailable witness’ wrongfully procured absence, 193 ALR Fed 703; see also Scott, supra at 763-764, quoting 30B Graham, Federal Practice & Procedure (2000 interim ed) § 7078, p 702 (“ ‘Rule 804(b)(6) is an attempt to respond to the problem of witness intimidation whereby the criminal defendant... through one means or another, often a simple telephone call, procures the unavailability of the witness at trial....’”).
To the extent that the court’s finding rested on Officer Johnson’s credibility, it was a matter for the trial court to decide. The court expressly stated that it found the testimony of Troup and Officer Johnson credible with respect to the threats to prevent Troup from testifying. Moreover, the trial court could infer from the evidence before it that defendant had a role in intimidating or issuing the death threat to silence Troup, given the history of witness intimidation by those involved, their personal relationships, and their affiliation with the East Side 100 gang.
Rule 804(b)(6) “contemplates application against the use of coercion, undue influence, or pressure to silence testimony and impede the truth-finding function of trials.” Scott, supra at 764. “[A]pplying pressure on a potential witness not to testify, including by threats of harm and suggestion of future retribution, is wrongdoing.” Id. This case, although a close call, is essentially a “battle of inferences,” id., and we cannot conclude that the court erred in inferring that defendant was involved in intimidating Troup to prevent him from testifying. We find no abuse of discretion in the admission of Troup’s statement under MRE 804(b)(6).
Affirmed.
“FRE 804(b)(6) provides that ‘[a] statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness’ is not subject to exclusion under the hearsay rule if the declarant is unavailable as a witness.” Bauder, supra at 183 n 3. The federal rule was adopted in 1997. Id. at 183-184.
Troup was called as a witness and testified about the events preceding the shooting, including that he knew Burnette, the victim, and that he and defendant were friends. He provided details of the confrontation and events surrounding the shooting. He identified who hit Burnette with the brass knuckles, but became nonresponsive when the questioning began to focus on defendant. Troup’s responses were inaudible, and he covered his mouth with his hand as he replied to questions. The court questioned Troup about his refusal to testify, and Troup stated that the reason he did not want to testify in court was that he was getting death threats.
Under MRE 1101(b)(1), the rules of evidence do not apply to “[t]he determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under Rule 104(a). ” MRE 104(a) provides that “[preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court,” and, in ruling on preliminary questions of admissibility, the trial court is “not bound by the Rules of Evidence, except those with respect to privileges.”
Because Troup’s statement was admissible under MRE 804(b)(6), we do not address defendant’s argument that Troup’s statement would have been inadmissible under MRE 804(b)(7). | [
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] |
PER CURIAM.
Defendant appeals as of right the trial court’s order requiring it to modify plaintiffs basic information report (BIR) to reflect that plaintiff had no criminal sexual conduct convictions. Specifically, defendant appeals the trial court’s denial of its motion for summary disposition, which argued that plaintiffs failure to follow reporting procedures rendered the suit invalid and subject to immediate dismissal. We agree and reverse. We review de novo a trial court’s decision to grant summary disposition. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999).
As an initial matter, plaintiff was a “prisoner” at all relevant times under the definition contained in MCL 600.5531(e). Before the BIR was completed, plaintiff pleaded guilty of five crimes related to distributing child pornography with a computer. Therefore, he was “a person subject to incarceration, detention, or admission to a prison who is accused of [or] convicted of.. . violations of state or local law ....” MCL 600.5531(e).
A prisoner who brings a civil action regarding “any conditions of confinement or the effects of an act or omission of government officials, employees, or agents in the performance of their duties,” MCL 600.5531(a), must disclose, at the suit’s commencement, the number of civil actions he or she has previously initiated, MCL 600.5507(2). If a prisoner fails to disclose the number of previous suits, the statute explicitly instructs the court to dismiss the action. MCL 600.5507(3)(b). Flaintiff did not disclose the number of civil actions relating to prison conditions that he had previously pursued, so the trial court should have dismissed this suit. The fact that plaintiff had never pursued a civil action before does not excuse his lack of disclosure because “a prisoner is obligated to disclose ... the number of civil actions and appeals he had previously initiated, even when that number is zero.” Tomzek v Dep’t of Corrections, 258 Mich App 222, 224-225; 672 NW2d 511 (2003). Plaintiffs failure to disclose the number of previous civil actions he commenced mandates the dismissal of this case.
Reversed.
Although we recognize that plaintiff is currently on parole, he has not been discharged. Therefore, the contentious BIR might still play a part in defendant’s administration of plaintiff, and the issue is not yet moot. An issue is not automatically rendered moot merely because its ramifications are partially or potentially alleviated. To hold that the issue is moot is to require defendant to maintain a judicially altered BIR as part of plaintiffs records. Unless plaintiff follows the appropriate procedures for obtaining the remedy he seeks, we see no reason to grant him this relief, no matter how unlikely it may be that the relief will ever benefit him. | [
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Cooley, J.
Suit was brought by the insurance company to recover of Hurd moneys which they had paid to him in settlement for a loss against which they had insured him; The grounds on which they claimed to recover were that the policy was void for misstatement of facts and for misdescription of the risk, and that the proofs of loss were deceptive and untrue.
Hurd resides, and did reside when the insurance was taken out, in the State of Ohio. The building on which the risk was taken was a hotel, situated near the mouth of Pine river in Bay county. Mr. Foote at Saginaw was agent for Hurd, and as such obtained the insurance of one Martin, who was agent of the company at that place. It was -shown on the trial of the cause that the hotel had for a long time been held adversely to Hurd by one Mrs. Spears; that Hurd had brought ejectment against her in the U. S. Circuit Court and recovered a judgment; that no writ of possession had been taken out, and that Mrs. Spears still remained in possession, and under the statute was entitled to a new trial as matter of right on paying the costs. While this was the state of things Mr. Foote applied for the insurance, and without any written application, Martin wrote and delivered the policy. In the policy the building was described as Hurd’s “two story frame hotel building and addition, occupied by a tenant for hotel purposes” — a recital manifestly untrue so far as relates to possession. Martin was not called as a witness for the purpose of any explanation of this misrecital, but Mr. Foote testified that while he was making his brief for the purpose of participating in the ■trial of the ejectment suit Martin was frequently in his office and talked with him about the nature of Hurd’s claim to the property, and saw the brief; that after the trial he told Martin of the result of the suit; that a judgment had been rendered' in Mr. Hurd’s favor, but that Mrs. Spears still remained in possession and was entitled to a new trial if she saw fit to claim it, and Hurd was fearful that some accident might occur, and wanted the property insured; that the amount of insurance Hurd wanted was talked over, and Martin made inquiries of other persons concerning the value, and wrote up and issued the policy, the witness having nothing to do with directing the language that was inserted in it.
There was other evidence in the case which showed that Mrs. Spears claimed the land under a tax-title and a purchase at a sheriff’s sale, — and the circuit judge in instructing the jury called their attention to this fact as establishing the untruthfulness of the recital that the building was occupied by a tenant. He then explained to them that Mrs. Spears might have been a tenant and still have been proceeded against in ejectment for holding over after her term had expired, and therefore explaining to Martin the position of the suit against her did not necessarily apprise, him that she was in possession otherwise than as tenant. He then instructed them that if Foote merely disclosed that there was a litigation in regard to the property, he might have left Martin ■fairly to'understand that Mrs. Spears was in there in subserviency to the right which Hurd claimed as absolute owner of the property, and not denying it at all, and that if he did so, the recital-in the policy being a warranty of its truthfulness, the policy would be avoided by its falsity. Also that as Mr. Foote had not expressly testified that he explained the nature of the adverse claim of Mrs. Spears, it must be assumed that he explained only as far as he now says he did, namely, the condition of the litigation.
This instruction entitled the insurance company to the verdict, which was rendered in their favor. We think the circuit judge applied to the testimony of Mr. Foote a literal strictness which is hardly reasonable. Mr. Foote was familiar with the litigation and the grounds of it, and when he testifies that he talked with Martin concerning the nature of Hurd’s claim and showed him his brief, we should make a somewhat violent assumption if we were to suppose that he left Martin to understand or infer that Hurd’s claim was that of a landlord whose tenant was holding over. It is somewhat difficult. to imagine what Mr. Foote could have said of his client’s claim which would have been consistent with the existence of a tenancy without falsifying the facts.
It is suggested that the explanation by Mr. Foote ,to Martin was before there was any negotiation for insurance. This may be true, but it sufficiently appeared that the conversations which took place when the insurance was applied for were shortly afterwards, and were had with the explanations in mind, which indeed were expressly referred to.
The circuit judge appears to have assumed that had Mrs. Spears been in position of a tenant holding over and contesting the right of her landlord, the policy would have been valid. If so, it is not very clear that the misrecital of fact should avoid it. When a party is in possession contesting the right of the insured to the possession, the question whether the risk from fire depends upon the nature of the claim he makes is one somewhat difficult to be disposed of as matter of law. An obstinate and contentious tenant who resists to the last extremity his landlord’s right would certainly not be a desirable person with whom to entrust the tenement insured for his landlord’s benefit: perhaps as little desirable as the adverse claimant.
Our view of this case renders necessary a new trial. A question is made of the fraud of Hurd in obtaining the insurance money on untrue proofs; but it is one that should be passed upon by the jury. In this case it was taken from the jury by the. charge.
The judgment must be reversed, with costs, and a new trial ordered.
Campbell, C. J., and Graves, J., concurred; Mars-ton, L, did not sit in this case. | [
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Graves, J.
March 9th, 1874, Van Marter filed this bill to foreclose a mortgage executed to him by McMillan June 24th, 1869. The mortgage was made to secure several promissory notes of even date given by defendant to complainant and the bill claimed that the amount called for by seven of these notes was still unpaid and that the sum represented by three was due. .They were respectively for twenty-five dollars and interest at ten per cent and one was payable November 13th, 1871, and one in each year thereafter until the whole seven should be due. The others secured by the mortgage were earlier and seem to have been transferred to one Jehks and paid by McMillan. No one questions that they have been regularly satisfied.
McMillan answered and admitted giving the mortgage and seven notes as stated in the bill. He however denied the accuracy of the statement of the amount due and alleged that an error in computation had occurred, and next denied that any sum was due complainant on the notes and averred that pursuant to an agreement and understanding between the parties, defendant had fully paid the notes to complainant “ at sundry times in goods, moneys, chattels, work and labor to the amount of two hundred dollars and upwards.”
A sworn answer being waived there was no oath. May 9th, 1874, the usual general replication was filed and the parties proceeded to produce evidence. September 12th, 1874, the taking of testimony was commenced and YanMarter then testified. The production of evidence was concluded April 13, 1876, at which time he testified again. June 14, 1877, the court on full hearing decreed in favor of complainant and rejected the defense.
The decree declared that there was then due $288.91 and that November 13, 1877, there would be due the further sum of $25 and interest thereon at ten per cent from November 13, 1876, amounting to $27.50.
The objection that the ownership of the demand or whatever of it had matured when the bill was filed, was in complainant’s mother, cannot be sustained. It rests entirely upon complainant’s statements on the stand, and all of his statements on the subject must be considered together. Some were made when he was first sworn and others nearly two years later and just at the close of the examination of witnesses, and on the last occasion he stated that since his previous deposition the arrangement with his mother had terminated. His exposition of her relation to the claim is not lucid. But upon the whole it causes the impression that she was never legal or equitable owner of any of the securities.
In regard to the defense set up by answer not many words are needed. There is no claim of set-off. The position is that the demand has been cancelled by payment under a somewhat singular arrangement. The giving of the securities is admitted and the complainant holds and produces them. They have not been actually taken up and prima facie remain in force as valid demands in complainant’s ownership. They presumptively make out the cause of action and this consequence is not liable to be overcome by slight or not very prob able reasons. It is for tbe defendant to make out bis defense and prove that be paid tbe mortgage and notes as he asserts in bis answer. He is required to show distinctly tbe special agreement and 'the transactions under it constituting tbe alleged payment and satisfaction. No agreement in writing is produced, and it is conceded that none was made. If there was any understanding, it must have been verbal, and whether there was or not depends pretty much entirely on tbe testimony of tbe ■ parties. It seems that tbe mortgage in suit was given in place of one which contained a mistake, and tbe account given by defendant as a witness of this agreement, and tbe shape of it, is this: “He said seeing I had been so honorable with him, on tbe night of tbe 24th of June, 1869, in presence of bis wife, that he would take his payments in tin toare or anything, if it was only ten cents at a time, and I agreed I would do so; and when be called on me I did so, and whatever I paid him was to be endorsed on tbe 13th day of November in each and every year;” and further on be says the complainant also told him “if I would keep it in an account be would do tbe same and allow as much interest on tbe account as tbe mortgage called for.”
Tbe complainant fully and explicitly denies that be ever made tbe arrangement described or any other of tbe kind, and swears positively that be never entered into any arrangement with defendant or bad any understanding with him that tbe mortgage might be paid in any way except according to its own terms, and tbe surrounding incidents and presumptions weigh quite as strongly in favor of complainant as of defendant. Mrs. Van Marter in whose presence tbe defendant says tbe agreement was made died several years since, and consequently there is no one except tbe parties able to speak on personal knowledge as to tbe fact of making tbe alleged agreement.
It appears that tbe parties in one way and another carried on between them a very miscellaneous traffic in small matters amounting in the aggregate to quite a sum, and that these dealings included little bailments and special bargains. It also appears that defendant made memoranda which contained, as he claimed, a correct account of items received by complainant pursuant to the agreement. Here again the evidence is opposed irreconcilably. Some items are distinctly shown to be not chargeable to complainant and others are disputed, and complainant swears that whatever charges are correctly set down as items against him are largely overborne by similar matters of account he has against defendant, and that the latter has virtually admitted it.
This branch of the controversy like the other, is left to be determined almost wholly upon the personal testimony of the parties, and the disagreement is complete. The failure of the defense is evident, and if it were less palpable it would be right to hesitate before assuming to interfere with the conclusion of the court below against a defense to plain written securities resting on such grounds and attempted to be maintained by evidence of the nature of that in the record.
A point is made by defendant that in decreeing that there was due at the date of the decree, June 14, 1877, the sum of $288.91, the court allowed too much, and he insists that the amount was unlawfully enhanced by making computation according to the act of 1869 (Sess. L., 1869, p. 12). The complainant contends that the computation was not under that act and that if it had been the amount must have been very much larger. He tacitly admits that the sum allowed is considerably beyond the principal with simple interest computed from November 18th, 1870, and he explains and defends the allowance by saying that although the notes due November 13, 1869 and November 13, 1870, were sold and paid to Jenks, still no interest on the principal was paid to him.
There is reason for saying that the decree is wrong in this particular, and moreover, that both parties are in error likewise. Complainant has never made claim that interest should be calculated under the act of 1869, and therefore his position does not help to authorize an inference that the computation was so made. On the other hand the decree contains internal evidence that the court' did not intend to allow interest pursuant to that law.
The sum is conspicuously less . than it would have been if fixed according to that act, and considering the simplicity of the operation the discrepancy cannot be charged to mistake.
Then again the case is clear that the amount paid to Jenks did cover the interest on the principal up to November 13, 1870. Defendant swears positively that he paid that interest to Jenks, and complainant does not controvert it. He merely says he does not know whether he did or not. It was due to Jenks. The notes transferred to him called for it and they were given up to defendant as satisfied in full. There is no other evidence as to whether it was paid or not, and certainly there is no ground for saying it was not paid. Was it included in the computation? Here again the ground for inference is wanting and the internal evidence is strong. All the proof showed that the back interest was paid and rightly paid to Jenks, so that complainant’s interest would have to be computed from November 13, 1870, and consequently the true state of the case is inconsistent with the supposition that the interest which accrued prior to that date was meant to be included. In the next place the amount.of that early interest and the actual deviation in the decree do not correspond. The decree would not be set right in amount by striking out a sum equal to that interest. How then shall the real discrepancy be accounted for? By making an accurate computation of simple interest on the whole principal sum from November 13, 1870 to November 13, 1876, and from the latter time on $150, the amount then payable, for the fraction of the year at the time of the decree, June 14, 1877, (the interest for the last year on the last twenty-five dollar payment being excluded on account of not falling due until the 13th of November after the decree), the amount of principal and interest due is found to be exactly $25 less than the amount inserted in the decree. The latter is therefore too large by precisely $25. How may this, be explained? The record, it is believed, affords a perfect answer. On turning to the mortgage it is found that it contains a clause allowing $25 as attorney fee in case of foreclosure, and beyond all question this item in some way has crept into the allowance and has caused the perplexity experienced. Of course it is improper and must be stricken out. Sage v. Riggs, 12 Mich., 313.
The decree being corrected in this respect ought to be affirmed. The complainant is entitled to costs.
The other Justices concurred. | [
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] |
Graves, I.
This ease comes up on the appeal of Henry and Edwin B. Morgan, from an order of the circuit court confirming commissioner’s award in certain proceedings taken to condemn land for right of way. The land is situated in the outskirts of the city of Lansing, and when demanded for right of way was wild. The appellants reside in the State of New York, but a gentleman at Lansing has for many years been their agent to attend to paying taxes and guard the land against unlawful intrusion. In the summer of 1876 the company made entry upon the land to build their road and for the purpose of their track occupied between three and four acres, and in so doing placed about forty feet of a large bridge there.
During this time efforts were being made to acquire the way by private and amicable means, and the company proceeded in the belief that such efforts would succeed and there was reasonable ground for such belief. The facts in regard to this need not be explained. In the fall of that, year, however, and after the company had about completed the road across the land, it became obvious that the endeavor to get the way by private arrangement must fail, and .they then instituted proceedings in the probate court to secure the result by condemnation under the statute. This took place the 29th of September.
Commissioners were appointed and they made an award which the probate court confirmed November 7, 1876. The appellants were not satisfied and they obtained a review here on certiorari. The record showed that error had been committed in giving notice, and the proceedings were therefore quashed. Morgan v. Chicago & N. E. R. R. Co., 36 Mich., 428. After this decision the company made the application in the record. This was in July, 1877. The appellants appeared in the circuit court and demanded a jury. In the course of some eight days, however, they stipulated with the company that the order for a jury shold be changed to one for commissioners, and that Edward W. Sparrow, T. Gale Merrill and George E. Eanney should be appointed by the court “to determine the necessity for taking the land described in the said company’s petition, and the compensation and damages.to be awarded to the owners of said land in consequence of such taking.” The court conformed its action to the stipulation and the commissioners so agreed on were appointed and the award now in question was made by them on the strength of these proceedings: They examined the premises and received and heard the proofs and claims of the respective parties. Counsel attended on each side and a full hearing was allowed. After deliberation, and on the 19th of December, 1877, the report was filed. The commissioners thereby found and determined “that the taking of said strip or parcel of land (described as fifty feet in width on each side of the center line of said company’s road extending across the northwest fractional quarter of section 22 in town 4 north, range 2 west, and about 92 rods in length from east to west, containing 3£ acres) was required and necessary for the constructing and operating of said railroad and a necessary public use thereof,” and that the company ought to pay appellants as compensation for the land taken $190.50 and $195 for damages to remaining lands, and that the same was awarded. They further reported that they did not estimate or include improvements which the company had made, and that their award was made up as of Novem ber 15, 1877. It appears to have been written ont December 11, 1877.
The statute prescribes that the notice of appeal “ shall specify the objections” taken to the proceédings and that the Supreme Court shall pass on such objections only, and that all others, if any, shall be deemed waived. It further prescribes that when a “ claimant of damages ” appeals, no part of the report shall be affected except the part appealed from. Act 198 of 1873, art. ii, § 23; Laws of 1873, pp. 517, 518, 519. The notice here given was drawn in view of these regulations, and the first objection alleged is that the' commissioners refused to allow appellants for the road itself and part of the bridge constructed by the company prior to these proceedings. These works cost between seven and eight thousand dollars, and appellants contend that the company in making them on the land acted without authority and simply trespassed, and that the works became fixed and incorporated with the land and were required to be considered as part of it and in the appellants’ ownership, for the purpose of estimating their damages. There is no basis in law or equity for this claim. It is not consistent with a fair interpretation of the stipulation -for the creation 'of the commission, nor reconcilable with the actual attitude the parties bore to each other whilst the work was going on. The company did not act wantonly or oppressively. They had reasonable expectation of getting the right of way on private terms and without difficulty. But it is not intended to rest upon such considerations.
The proceeding is not an action by appellants to recover damages for past trespasses, nor an ejectment on their part to compel the company to restore possession, and as incidental thereto to forfeit erections constructed in their own wrong.
The nature of it is different. It' is no part of its object to compel the company to sacrifice the cost of its works upon the land, either by enforced abandonment on the one hand or enforced payment of the value to the land owners on the other. It is a proceeding by the company to secure in a lawful way the right to take and use the land, a right not previously obtained; and the only terms the law imposes in case the taking and use are sanctioned is the payment of such “damages or compensation as ought justly to be made.” And certainly it would not be “just” to require the company in this proceeding to pay appellants for the identical works the company have constructed in order to carry out the specific use and purpose for which the land is required.
The right sought by the company is a right to burden the land with a particular servitude and one which necessarily includes the creation of these works upon the land and their retention therfe, and the inquisition required by the proceedings excludes the taking into the valuation these works themselves as fully as it excludes -the taking into the valuation the cost or worth of the -cars or other instrumentalities used there. The right of the company to have there all the requisite means to ■effectuate the use intended is one of the facts to be considered in ascertaining the amount to be allowed. But the abstract value of the things themselves is not a fact to be footed up as part of the allowance. It is a foreign question. See authorities cited by counsel for the -company.
The admission of several pieces of evidence by the commissioners is complained of. The objections in the record are not of such character as to make it needful to inquire about what practice ought to be pursued by juries and commissioners in these particular cases or to consider the precise province of this court in regard to such when in the exercise of its mere appellate power under the Railroad Law. It is enough now to say that none of the objections to evidence which are reported seem to us to possess any solid merit, and we cannot perceive that any of the rulings relating thereto could have worked any injury to appellants.
A farther objection is that as á basis of valuation the commissioners assumed that the quantity of land in question was three acres and a half and no more, when in fact and according to the proof which was not disputed the quantity was 3 81-100 acres. Supposing the exact amount to be as stated, and the answer is that it does not appear that the damage was adjusted at last according to acreage. The report shows that the parcel was inspected by the commissioners and that they determined the entire damage for the entire parcel. They describe it and then add that it contains 3 50-100 acres. But there is nothing in this to warrant the assumption that the commissioners in arriving at their final determination concerning the amount to be awarded were led to an undervaluation through mistake respecting the exact number of rods in the parcel. There may be satisfactory ground for inference that after looking at the premises they cast about in their minds for some general criterion to assist their judgments in the process of seeking a result which would be satisfactory to them and which would embrace an entire amount justly allowable for the entire parcel then under their actual inspection; and that in this.way and in order to reach a decisive end they called the parcel 3J acres. Admitting this and still the record neither expresses nor implies that the sum actually allowed was any less than the true worth according to their sense and judgment of the entire parcel. And we cannot decide .on this record that any variation in quantity of only a few rods imposed upon the judgments of the commissioners and that they were only satisfied with the amount reported, upon the supposition that the quantity of land was actually 31-acres. Their report in no way indicates any such qualification. So far as the record affords light it is not apparent that the ascertainment of .the proper sum was regulated in the commissioners’ minds by any extreme nicety in regard to the number of rods or feet contained in the parcel.
The remaining objection is that the finding is neither in form nor substance what is required by § 2 of article xviii of the Constitution.
The objection cannot be supported. It is true the form is not very felicitous. Still it embodies in substance and complies with the sense of the constitutional provision referred to, and moreover is much less open to controversy than the language of the stipulation which dispensed with a jury and by agreement determined upon a submission to commissioners. ■
It is a finding which specifies the exact use and declares it to be public and necessary. No other construction can be fairly put upon it. If the meaning were doubtful or ambiguous other considerations would arise.
The objections to the report failing, the order of the circuit court should be affirmed with costs against the appellants.
The other Justices concurred. | [
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] |
Cooley, J.
Edwards & .Murphy sued Eifield in the Superior Court of Detroit to recover the price of certain goods received by one A. B. Watson, but for which, as they claimed, Fifield had made himself responsible. The principal question made in the case was whether the judgment in a previous suit, wherein Francis W. Fifield and Eugene Fifield were plaintiffs and Edwards & Murphy were defendants was not a bar to this demand.
In the previous suit Edwards & Murphy relied upon this same demand by. way of set-off to the claim of the two Fifields against them. Judgment passed for the plaintiffs in that suit, and the record is silent upon the point whether this set-off was or was not allowed. In the present suit the plaintiffs were permitted, against the objection of Fifield, to show that the demand as a set-off was rejected in the previous suit on the ground that it appeared to be a demand against Francis W. Fifield only, and not against the two who were then plaintiffs. On that showing, and on evidence satisfactory to the court that the demand was a legal incíebtedness of Francis W. Fifield to Edwards & Murphy, they recovered judgment.
The objections made to this recovery may be briefly stated as follows:
1. That the demand involved in this suit having been once the subject of litigation in a suit to which all the parties to this suit were parties, and which was tried on its merits and proceeded to judgment, and evidence having been offered in favor of the demand and a recovery claimed upon it, such previous judgment is an estoppel, and it is wholly immaterial whether demand was or was not sufficiently proved, or was or was not allowed.
2. The bar not depending upon the allowance of the claim, the parol evidence received to show its rejection was immaterial and its reception erroneous.
3. The fact that the parties in the second suit are not precisely the same as in the first is immaterial; for though they be more or less numerous, if the litigation is the same in substance and involves the same subject matter, the legal bar is made out.
No doubt these positions present or suggest general principles which in the main are correct. It cannot be suffered that a controversy shall be tried over and over, but the one suit tried, submitted and disposed of on the merits must conclude the litigation. If a party has .been so negligent or so unfortunate as to fail in making a full presentation of his case, whereby the judgment has passed against him, he cannot be helped on making a better showing in a new suit. The estoppel does not depend upon the question whether justice was done in the first suit, • but upon the merits. having once been considered and passed upon. Miller v. Manice, 6 Hill, 114; Stafford v. Clark, 2 Bing., 377.
But there can be no bar if the demand to which by their evidence the parties directed the attention of the court, and which the court rejected, was not within the issue and consequently could not have been allowed. The estoppel does not depend upon, technicalities, but rests in broad principles of justice, and it can apply only when the party has had his day in court and an opportunity to establish his claim. The fact that a suit has been instituted and evidence produced is of no importance whatever, if in fact the evidence was directed to matters which were foreign to the issue. If,. for example, the plaintiff in an action of -assumpsit were to attempt to litigate a matter of trespass to lands, it would be immaterial how far he should go into the evidence, or at what stage of the proceedings the ruling should be made rejecting his claim; the bar cannot attach because in law, whatever may have been the testimony, there could have been no recovery. Nothing would seem to be plainer than that no man could be barred by a judgment against him who was not by the issue placed in such a position that establishing his demand would entitle him to a judgment in his favor.
In this case the nature of the demand was such as to bring it within the issue in the former suit. But the evidence that was received upon it showed that it was not within the issue, because it was a demand against one of the plaintiffs only, and could not have been allowed against the two. Had the claim been a promissory note signed by one of the plaintiffs only, or a covenant to which only one of them was a party, the impossibility of litigating it in that suit would perhaps have appeared more clearly, but it could not have been more absolute. Nor is it of importance that the defendants in that suit put evidence into the case which perhaps had some tendency to fix a liability upon both the plaintiffs; it is enough for the purposes of this suit to know that the endeavor to establish the set-off failed, not because of defect'in proof of the claim, but because it was made against the wrong parties. The more clearly the defendants proved their claim against Francis W. Fifield, the more manifest it became that the court could not consider its merits and allow it as a set-off' in that suit. Lawrence v. Vernon, 3 Sumn. 20, 23.
Nothing in the authorities to which the briefs call our attention is in our opinion inconsistent with these views. On principle, if the mistake made in presenting and endeavoring to establish the claim against the two Fifields should constitute a bar to a suit against the one really responsible, then no' reason is perceived why, if by mistake in identity a creditor were to pursue by suit tbe wrong person, tbe judgment against tbe plaintiff should’ not bar a suit against the real debtor. The reason for an estoppel, and the justice in allowing it would be no greater in the one case than in the other.
We find no error in the record, and the judgment must be affirmed with costs.
The other Justices concurred. | [
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] |
Graves, J.
These claimants presented two joint claims against the estate of decedent to the commissioners of audit and the claims were disallowed. The claimants appealed to the circuit court, where the ease was tried before a jury. The judge instructed the jury against one of the demands and submitted the other, and upon that a verdict was returned in favor of the claimants. The estate brought error.
The first claim was for a balance asserted to be due the claimants on dissolution of an alleged co-partnership between them and decedent.- The. second was for the amount of a judgment in Buffalo, alleged to have been collected by the administratrix upon an order given by the judgment debtor to decedent upon Downey & Devine, for the benefit of claimants.
As the first demand was disposed' of, no question in relation to it arises on this record.
In December, 1875, the claimants gave decedent a written assignment of the judgment, and in the course of a few weeks he took an order on Downey & Devine from the judgment debtors for the amount, and after his death his administratrix received the money upon the order. Several exceptions were taken to the admission of parol evidence to explain the circumstances and show that decedent acted for claimants and was to receive $50 as compensation for collecting the judgment, and that the money was received by the estate and belonged to the claimants. The objection made against the evidence was that it was inconsistent with the written assignment of the Buffalo judgment. The objection was properly overruled. Willard v. Fralick, 31 Mich., 431; Catlin v. Birchard, 13 Mich., 110.
• That the assignment passed the legal title to the judgment was not questioned in any way, and the evidence was not tendered for the purpose of infringing the assignment. The claim was in substance of the same nature as the equitable action for money had and received, and was governed by the same principles. It was hence perfectly competent to show a state of facts sufficient to establish that the money when received by the estate equitably belonged to the claimants, and could not be equitably withheld, and the evidence admitted was pertinent.
As matter of defense, an attempt was made by the estate to prove that claimants and decedent were co-partners, and that a balance existed in the partnership affairs in favor of decedent which the estate was entitled to set off. The court excluded the offer. The record contains nothing to impeach this ruling. Counsel for the estate refer to Wheeler v. Arnold, 30 Mich., 304, as opposed to it, but that is not so. There, but two partners were concerned and on the death of one an adjustment only required a consideration of the equities between the survivor and the estate of the deceased partner. There could be no disparity of interests beyond such as eould arise between the one and the other, and no ground for conflicting or disagreeing’ equities or variable relief on the side of the estate or the side of the claimant, and the opinion carefully confined the right of inquiry to the case of two partners. Here there were three partners and the defense contemplated an investigation of their affairs, to show a final balance in favor of decedent and against the claimants jointly. The proceeding was not suitable for the tribunal and case. No overhauling of the partnership affairs to ascertain and fix the final rights of the parties could be made without taking cognizance of the respective equities, and the specific rights and interests of each one of the three, and this could not be safely attempted before a jury in an action of the nature of one at common law, and on the common law side of the court.
This difficulty seems to have occurred to counsel for the estate, because in their brief they observe that ■“notwithstanding there were three individuals in the firm, yet there were not in reality but two partners,— Hosier constituting one of the partners, who furnished all the capital employed, and- the two «elder brothers, who were to do all the labor of the business as an off-set to the capital furnished by Eosier, constituting the other partner.”
The record does not disclose any proof or offer to prove that in the constitution of the partnership and in the relation between the partners the claimants were as one partner and decedent as the other. There is hence no occasion for saying what the effect of such a state of things might be. -
The exceptions not disposed of by .the views expressed are not of sufficient merit to require special notice.
We discover no error of which the estate can complain, and the judgment should be affirmed with costs..
The other Justices concurred. | [
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] |
Cooley, J.
The land for which Lewis brought ejectment appears to have been Normal School land, and was first purchased of the State by Eugene Smith in December, 1853. The price was $160, and credit was given by the State for $120, which Smith was at liberty to pay at any time, but until payment was made, was required to pay interest at seven per centum annually.
In January, 1875, the land was again sold by the State to Lewis, upon the assumption that the original certificate of purchase had been forfeited by non-payment of interest. July 7, 1875, a patent was executed and delivered to Lewis. Eomain had previously become the assignee of the original certificate, and was in possession under it.
On the trial Eomain sought to defeat the patent to Lewis by showing that no default in the payment of interest had occurred; but the circuit Judge rejected the evidence. He also insisted that Lewis must support his purchase by showing affirmatively that the previous purchase had become forfeited; and as matter of law he claimed that the patent to Lewis was void because under the statute, Comp. L., § 3836, the prior purchaser, if in default, was entitled to a year in which to redeem from a subsequent sale, and a patent given sooner was premature. Neither of these positions was sustained by. the court, and Lewis had judgment.
It has been held in this State that a patent from the Federal government is evidence of title, and cannot be assailed at law upon mere equities. Bruckner’s Lessee v. Lawrence, 1 Doug. (Mich.), 19. A patent from the State would come under the same rule, and the uniform course in this State has been to test the justice and legality of its issue by bill in equity. That was the course adopted in Boyce v. Danz, 29 Mich., 146, and Hedley v. Leonard, 35 Mich., 71, and we see no reason to depart from it. The questions which such a case is likely to present are either questions of law or questions arising upon official records or documents, and as complete relief would include the setting aside of the patent, the proper tribunal, seems to be that which will have the power to dispose finally of the whole controversy.
It is to be observed of the patent which is issued on a sale of lands as forfeited, that the Land Commissioner issues it without any. hearing or adjudication, and upon an inspection of his own records. If he errs in the facts, his patent is not void, but only voidable. The same is to be said of a patent issued prematurely: it cannot cut off private rights, but it nevertheless conveys the legal title from the State to the patentee, and puts him in position to bring ejectment. Whoever has a better equitable right may show it in equity, but not at law.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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] |
Campbell, 0. J.
Freehling sued the Ketehums under the common counts for goods sold, work and labor, money lent, money had and received, and account stated.
The record shows a bill of particulars (whether demanded or voluntarily furnished does not appear), which contained six separate charges for the aggregate value of goods furnished to sell on commission, on vari ous days mentioned, and three similar charges for goods sold on various days, giving the aggregate charge in each instance, but not giving the separate articles of goods thus furnished. No objection seems to have been taken before trial, and no demand was made for a fuller itemized bill.
On the trial three several classes of testimony were offered and ruled out. 1. Plaintiffs offered to prove that they furnished the goods specified, to be sold on commission, which defendants had sold, but had retained the proceeds. 2. They offered proof of the sale and delivery of the goods mentioned in the bill of particulars as sold to defendants. 3. They offered to show an accounting and balance struck.
All these were rejected. The commission transactions were ruled out on the double ground that there was no count in the declaration averring the relation of factors, and that the particulars were not itemized. The sales were rejected as not itemized. The account stated was rejected as not mentioned in the bill.
The objection that the bills were not itemized is without force. The bill of particulars informed defendants of the dates and amounts of the several sales and deliveries of merchandise. This is all that can usually be necessary to inform a defendant what he is expected to meet, and if he is dissatisfied and really needs a fuller statement, he should demand it. There was nothing in the present bill which was obscure or evasive, and the bill was as full as is customary among merchants in rendering accounts where they have previously sent invoices which the debtor is presumed to have received. If he has not received such invoices, or desires a fuller bill, fair practice requires that he shall not lie by until trial and then spring such a technical objection for the first time. The purpose of the rules in allowing bills of particulars to be demanded is to enable defendants to avoid surprise, and not to enable them to -make vexatious requirements. The testimony was admissible if the bill came within the counts at all. Goodrich v. James, 1 Wend., 289; People v. Monroe, 4 Wend., 200; Smith v. Hicks, 5 Wend., 48; Davis v. Freeman, 10 Mich., 188; Tefft v. McNoah, 9 Mich., 201.
There can be no doubt of the sufficiency of the bill for goods sold.
In regard to the commission dealings, although there is no count which sets out in terms the fact of agency, yet the count for money had and received clearly includes any dealings whereby money due to plaintiff came into the hands of defendants, and the items of goods furnished on commission were sufficient to indicate out of what transaction the claim for money had and received arose. The cases cited sustain this position, and the claim of account stated, if growing out of these dealings would be governed by the same rule. It. was therefore error to exclude any testimony which would have made out these claims.
The judgment must be reversed with costs, and a new trial granted.
The other Justices concurred. | [
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Graves, J.
At his death the decedent, Mr. Adams, held a mortgage on real estate which one Miriam Adams had given to him in December,. 1869, and his administrators foreclosed it by proceedings at law and bid in the premises.
The sale took place in April, 1874, and became operative in April 1875, and nearly two years later this ejectment was brought against Wixom to reduce the premises to possession. A verdict was returned in his favor by direction of the court, and the surviving administrator alleges error. The ruling now impugned was based on the idea that in remodelling section 7 of ch. 71 of the Rev. Stat. of 1846 the Legislature had deprived the administrators of all discretionary power to enter and take possession of lands belonging to the estate whenever and however acquired, and hence had disabled them from maintaining ejectment for the land in question. This view is a misconception of the bearing of the particular provisions and'legislation mentioned.
In no instance during the legislative mutations on the subject, has this branch of the chapter been applicable to lands bid. in by .executors and administrators on mortgages and executions. It relates to real estate left by the testator or intestate and existing originally as real assets and to be catalogued in that way in the inventory, and to be held and managed as lands descended or devised.
For many years prior to 1871 the law interposed against any peremptory claim by heirs ancl devisees to have possession, and empowered executors and administrators to control the possession and the rents, issues and profits from the death of the testator or intestate until settlement, or until the probate court should order them to yield to the heirs or devisees. But since that time there have been repeated changes in regard to the respective possessory rights for the time being of the legal representatives on the one hand and of the heirs and devisees on the other, over these lands so left b.y the testator or intestate. The inaptness of the legislation to lands acquired in the course of administration,— to lands obtained in the progress of converting personal securities to cash, — to lands the testator or intestate never owned and which could not descend or be devised, would seem to be quite plain.
Special provisions are made in regard to lands bid in on foreclosure (Comp. L., §§ 4412, 4413, 4414, 4415), and the statute attaches a character to such lands entirely distinct from that recognized as belonging to lands left by the deceased. For many purposes they are regarded as personal estate. The executor or administrator holds the mortgage as personal property, and is empowered to foreclose it and to bid in the premises and receive conveyance, and in case the land is not required to satisfy liabilities of the estate, it must be assigned and distributed, not as realty, but as personalty, that is, “to the same persons, and in the same proportions as if it had been part of the personal estate of the deceased.” In the mean time the executor or administrator stands “seized of the same” for those who would have been entitled to the money the mortgage called for, and unless the legal representative is- entitled to possession the premises must remain open and unprotected and exposed to the intrusions of any who may choose to enter, since the law has not vested the right of possession even contingently in any one else. We think the effect of these provisions is to give the right to the representatives, and that there is no room for objecting against its enforcement. Reynolds v. Darling, 42 Barb., 418.
But the defendant contends that the failure of his general objection is not sufficient to defeat the judgment. He takes the ground that he was tenant at will or by sufferance and that as no notice was given to terminate the tenancy, the suit was for that reason defective. It seems unnecessary to go far to refute this position. The facts in the record are sufficient. There is no possible foundation for any theory of a tenancy at will. On the contrary the circumstances disprove it. Bid the defendant so occupy as to entitle him to contend that he held in character of tenant by the plaintiff’s sufferance ?
Now a tenant at sufferance is one who having entered under a lawful title holds over without right and by reason of the laches of his landlord, after the termination of the interest. And in order that the occupant may assert and maintain against the supposed landlord that his holding is at the latter’s sufferance it is essential that he do not ground his retention of possession upon a contrary theory and hostile basis.
If the keeping of the possession is upon a claim which directly or by implication repels or negatives all right of the plaintiff to put an end to it, it involves a negative upon any right of the tenant to insist that his holding is on terms permitting the plaintiff to expel him, and he cannot elect to be considered as tenant by sufferance. Turning to the record and it appears too plain to admit of question that the defendant holds this very position, and refusing to recognize any right of possession in the plaintiff, endeavors to-defend his own possession by setting up an inconsistent and hostile ownership.
The premises were originally granted to him subject to the mortgage held by the estate, and another some three days older, and upon his agreement to pay both as part of the purchase price, and having failed to pay the mortgage given to decedent he sets up a title derived from the prior mortgage to protect his possession and defeat the action brought against it. Nothing could be more inconsistent than to permit him in these circumstances to shift his ground and insist that he ought to have had the notice which the statute prescribes for terminating tenancies by sufferance. Having repudiated the conditions essential to that tenancy and set up an adverse claim he must submit to the consequences. Notes to Taylor v. Horde, 2 Smith’s Lead. Cas., 478; i Washb. Real. Prop., ch. 12, § 1; 4 Kent’s Com., 116 et seq.; 1 Wheat. Selw., 721; Buller’s Nisi Prius, 96; Doe v. Williams, 2 Cowp., 621; Doe on dem. of Souter and others v. Hull, 2 Dow. & Ry., 38; Doe on dem. of Gray v. Stanion, 1 M. & W., 695; Cripps v. Blank, 9 Dow. & Ry., 480; Tew v. Jones, 13 M. & W., 12; Jackson v. Chase, 2 Johns., 84; Jackson v. Deyo, 3 Johns., 422; Reckhow v. Schanck, 43 N. Y., 448; Willison v. Watkins, 3 Pet., 43.
The judgment must be reversed with costs and .a new trial granted.
The other Justices concurred. | [
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Campbell, C. J.
Plaintiffs brought suit to recover under the money counts a sum of $2000, which they -claimed had been received by defendants to their use. The court below made a special finding, the substance of which was as follows:
Plaintiffs had a deposite account, with a little over $3000 to their credit, with a banking firm consisting of John, Charles and Andrew McKinley, in Pontiac. This was a general deposite account.
On the 29th of March, 1876, the banking firm knew that they were embarrassed, but supposed they could pay their debts if they could get an' extension. That evening after making up the cash account John McKinley, in pursuance of an understanding with Charles before the cash account was made up in the afternoon, put .$2000 in currency in a package with a strap round it marked “Coots & Topping, private,” and threw it back into the money box with the rest of the money of the firm. The money was put up in this way “ because the firm supposed their business might be stopped for a time and the money could not be drawn out, and they were afraid plaintiffs might be embarrassed for want of the money, and the money had only been deposited for a few days and plaintiffs were comparatively strangers in Pontiac, and that they did this that plaintiffs might get the money, and they intended the package should be delivered to plaintiffs.” When John and Charles had their conversation they had not concluded to make an assignment, and did not so- conclude until about nine o’clock that evening, when a general assignment was drawn up to defendants McConnell and Stout, and executed and delivered to them the next morning, March 80th, when McKinley Brothers delivered up their office and property, including the $2000, which was then in the safe, which had not then been unlocked.
Soon after this delivery John McKinley, who had the combination, opened the safe and took out the money box, showed it with the package in it to defendants and told them what he had done, and that he would like to have them give the package to plaintiffs. After taking advice they were advised they could not do so. John McKinley restored the box and package to the safe and in defendant’s presence directed the book-keeper to charge plaintiffs with $2000 as of the previous day. No cheek or memorandum was made.as to the $2000, and plaintiffs knew nothing about it until a day or two after the assignment. Defendants on a subsequent demand refused to give the package or the money to plaintiffs.
On these facts the circuit judge held there was no cause of action.
The plaintiffs rest their right to recover on the ground that the act of John McKinley was equivalent to the creation of a trust in favor of plaintiffs whereby the package of money became irrevocably set apart to their use.
The ease was argued with great ability on this hypothesis, and it was claimed that such a trust in favor of-creditors stood on as good a footing as any other similar trust, resting on an intention to devote the fund to the benefit of the cestui que trust.
Upon a review of the facts we do not think the finding establishes any such case, and we do not consider it necessary to discuss the doctrines referred to.
The case finds there was a general deposite account, which was therefore open to draft, and which in the ordinary course of business would be checked out from time to time and augmented from time to time by new deposites. It was competent at any time for the bank to tender the full balance due, but plaintiffs could not have been compelled to receive any less.
The utmost that can be claimed under this finding is an attempt to apply $2000 upon a much larger debt, with no attempt to communicate with the creditor until other rights had intervened. If plaintiffs had afterwards declined receiving this package it can hardly be claimed that any trust existed. It was not a ease of setting apart collateral securities. It was a money payment, or it was nothing.
The charging over to plaintiffs on the 30th could have no force as against the intermediate assignment. If the money was not completely set apart on the 29th it necessarily passed to the assignees.
It is evident from the finding that on the 29th this $2000 formed a part of the cash on hand as shown on the day’s balances, and that on that same evening plaintiffs had $3000 and upwards credited, and were not debited with the money put in the package.
The finding does not aver, and the judge evidently 'did not mean to aver, that anybody understood or intended that this package of money at the moment of its deposit in the money box became ipso facto a pay ment of so much upon the general balance, and had become irrevocably the property of plaintiffs. He finds expressly that it was intended the package should be delivered to plaintiffs, and until such delivery there could be no inore than an intent to deal with the bank’s own property — or in other words, an intent to make a future payment.
There is no finding — and evidently none was intended —that the banking firm considered themselves at the time as ceasing to have any control over this money. The endorsement made on the package of an unsigned memorandum is no transfer, and its language was not enough of itself to explain the transaction. Taking .the whole finding together, it indicates no design to pass any present, title to plaintiffs.
But even if it did, the difficulty is insuperable that a partial payment or tender of payment is inconsistent with a creditor’s rights, and can only be operative when he consents to receive it. Until, therefore, the plaintiffs had accepted this package, it — on the best possible theory for them — was an offer which could at any time be withdrawn before acceptance, and which was withdrawn and annulled by the general assignment from which it was not excepted.
We can see nothing in the case to justify a legal conclusion that this money did not belong to the bank at the date of the assignment.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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] |
Campbell, C. J.
In 1874 complainants filed their bill against defendant to restrain a series of suits at law for liabilities under the act for the incorporation of canal and harbor companies, under which defendant was incorporated.
On the 15th of August, 1876, a decree was entered dismissing the bill and decreeing payment to defendant of $2638.97, with interest from March 31, 1876, and that they have execution therefor.
• On the 4th of September, 1876, leave was granted to make a motion to set aside the decree; and that it be heard October 4, 1876.
On the 31st of October it was ordered that the report of the special commissioner be referred back for further investigation and correction, and that he report by December 26th the correct amount, and that if the report should be so filed showing a less amount to be due than the decree called for, defendant might remit the difference. It was further ordered that the decree should continue to stand for its full amount until the report came in, and should not be changed unless the report was filed within the time mentioned.
The original reference to Mr. Warriner, the special commissioner, was by stipulation which agreed that on his report a final decree should be entered for the amount he should report, and that the decree should be a bar to any future suit for the demands referred to in the stipulation and bill, and that no appeal should be taken from the decree, and that notes should be given for the amount payable at times specified. • This stipulation was made in December, 1875.
On the 27th day of November, 1876, Mr. Warriner made a new report reducing the amount due to $1104.15.
Exceptions were filed to this report by defendant, which were afterwards withdrawn.
The decree was enrolled April 18,1877, and execution issued April 20, 1877.
On the 16th day of May, 1877, the circuit court commissioner made an ex parte order staying proceedings and granting leave to move to set aside the execution.
On the 19th of January, 1878, this motion was decided, or rather the judge’s opinion was filed in favor of granting it, on the ground that the commissioner’s report had never been confirmed, and that until a rule nisi had been entered, and the lapse of eight days thereafter, either party might except, and that confirmation was appealable.
On the 6th of April, 1878, defendants entered an order nisi of confirmation. Thereupon complainants filed exceptions. On the 10th of June these exceptions were overruled and the report confirmed, and a remitter was entered of the excess in the old decree.
On the 5th of July, 1878, complainants moved to stay proceedings and vacate the decree, because under an act of March 20th, 1875, the corporate existence of defendants was annulled and the act under which they were incorporated was repealed, and three years had since expired, and there was no longer any defendant in the cause.
This motion was denied. An appeal is taken from both of the orders last referred to.
The repealing act of March 20th, 1875, declared that corporations legally formed and existing under the repealed statute (Comp. L., ch. 84) “shall nevertheless continue to have legal existence for the purpose of closing up their business only in accordance with the pro visions of chapter one hundred and thirty of the Compiled laws of eighteen hundred and seventy-one.” Pub. Acts, 1875, p. 39.
Chapter 130 (§ 3435) of the Compiled Laws provides that corporations whose charters shall expire by their own limitation, or shall be annulled by forfeiture or otherwise, shall nevertheless continue to be bodies corporate for the term of three years after the time when they would have been so dissolved, for the purpose of prosecuting and defending suits by or against them, and of enabling them gradually to settle and close their concerns, to dispose of and convey their property and to divide their capital stock; but not for the purpose of continuing the. business for which such corporations have been or may be established.
If the corporation continues to exist for the purposes of this suit, we think the other grounds of appeal are entirely without merit. The original decree has never been vacated or appealed from. The circuit court, when application was made to vacate it, refused to do so, but merely allowed an opportunity to remit a portion of it in case it turned out a mistake had been made by the commissioner — which seems to have been the fact. No rehearing was granted, and the complainant not appealing was confined to the privileges with .their conditions fixed by the circuit court.
That court could not properly have gone further. The parties, instead of adopting the regular practice, saw fit to preclude themselves from it by their ' own stipulation, which took the whole controversy out of the hands of the court for any purpose except that of entering a decree, which both parties agreed should be conclusive, on the report of their own referee.
They cannot be'allowed after doing this to ask this court or any other court to adopt a part of this stipulation and reject the remainder. They must abide by their own practice.
The circuit court should not have required the delay of an order nisi, nor permitted exceptions to be considered, such as were filed in this case. It is very well settled that an order of confirmation of such a report is not appealable, Kingsbury v. Kingsbury, 20 Mich., 214. If it required a further decree it is an interlocutory order. If on the other hand it is made as here as a favor to complainant and in pursuance of a stipulation, and not in the usual course of practice, there is nothing open to review because the parties have bound themselves by their own consent. But inasmuch as the decree had already been made and no leave had been given to vacate it, that would also preclude any further discussion on the merits. Whether there was or was not any legal or constitutional objection to any or all of the claims set up we need not inquire, because by their stipulation complainants agreed to pay them, and never appealed from the decree. It is too late now to raise such questions. *
The other question deserves attention.- There can be no doubt, under § 6623 of the Compiled Laws, if that section is applicable, of the duty of the circuit court and of this court to consider this case as still in full vitality. That section is express that a suit pending at the time óf the dissolution of a corporation shall continue to final judgment or decree. But as some further difficulty may arise concerning our own order and its enforcement, we are compelled to consider the effect — so far as it is involved in this case — of the repealing statute of 1875.
There is an obvious difference between repealing a general statute under which corporations have been formed for definite periods, and authorized to do acts and incur obligations that cannot be suddenly annulled without violating the obligation of contracts, and abolishing . the corporations already organized under it. Whatever power the Legislature may possess to forbid future incorporations, or to limit or prevent the future enjoyment by existing corporations of certain franchises, such a repeal would not necessarily either end or shorten the corporate existence, or destroy all corporate franchises. This distinction was pointed out in Mok v. Detroit Building and Savings Association, 30 Mich., 511, where a clause reserving to the Legislature the power pf abolishing particular corporations was treated as peculiar and highly penal in its character. See p. 528. If this were not so the effect of the many changes and substitutions in our general corporation laws would lead to strange and destructive results. That the repeal in the present case was only an indirect attempt to reach this result of destroying particular corporations' is evident from the fact that the same Legislature re-enacted the old law and confined it to the Upper Peninsula, and revived all the corporations in that region.
The three years section of the Compiled Laws was adopted when all corporations were created by special charter, and when no power had been reserved to repeal any charter except for ’cause. Under such a system all persons dealing with corporations knew when their corporate life would cease, and could contract and calculate accordingly. All contracts made with such a corporation contained by implication the condition that the corporate life would terminate as the charter declared it would. The object of this clause was not to limit, but to enlarge the corporate privileges, so that corporations whose existence for general purposes was nearing its end might enjoy the advantage of doing general business during the whole charter period, instead of being compelled to begin winding up their affairs before it ended.
The history of this three years’ clause will throw some light on the proper construction of our present legislation. While it appears to have been borrowed originally in substance from some other states, it had received no recognized construction when we adopted it, and the concurrent provisions of our own laws would probably have rendered such construction if existing more or less inapplicable.
This clause appears first in the Revised Statutes of 1838, part 1, tifie 10, chapter 3, sec. 7, where, as before stated, it could only have applied to special charters.
It is there followed by two other sections which provided for the appointment of receivers or trustees to take charge of the corporate interests and settle up the business, and make final distribution. These officers could be appointed at any time within the three years, and their duties could be performed during any period necessary beyond the three years, without limitation. Sections’8 and 9 of same chapter, R. S. 1838, p. 230.
On the 15th of April, 1839, a law was • passed “ to provide for the voluntary dissolution of corporations, and to prescribe the duties of receivers in chancery, in certain cases, and for other purposes.” L. 1839, p. 94. This statute, after providing for the principal purposes named in its title, embraced a section (sec. 34) which provided that the dissolution of a corporation by a decree of the court of chancery, or by the expiration of its charter, or otherwise, should not abate any suit or proceeding in favor of such corporation, but it might proceed in the corporate name, or the receivers or trustees might if they chose be substituted as plaintiffs. Sec. 34. The next section (sec. 35) provided. for suits by .receivers either before or after dissolution, but that suits commenced after dissolution should not be in the corporate name. Section 36 provided that no such suit once commenced should become abated at any time until brought to a close. Section 37 provided that suits against corporations should not abate by their dissolution but continue- to judgment or decree as if there had been no dissolution.
The law stood in this way until the Revision of 1846, and, as has been seen, the dissolution of a corporation in no way affected the prosecution or defense of any existing causes of action except in requiring cases on behalf of -the corporation to be commenced after its dissolution in the name of its trustees or receivers, if any had been appointed. The expiration of the three years of grace extinguished no rights absolutely.
The Revised Statutes of 1846, for some reason or accident which does not appear, omitted sections 8 and 9 of the old revision, and made no provision for the appointment of receivers or trustees of corporations whose corporate existence had run out or been annulled, while it retained section 7 verbatim, allowing three years to close up the corporate affairs. R. S. 1846, p. 212.
This Revision also retained in part the chapter on the voluntary dissolution of corporations, re-enacting without change section 34, above referred to; changing sections 35 and 36 so as to allow suits to be brought and continued in the corporate name after as well as before dissolution, by the receivers; and striking out a redundant clause in section 37 which was tautological.
The Compiled Laws of 1871, in all these respects retain the provisions 'of the Revision of 1846, which remain unchanged and show a manifest intent to keep alive all causes of action and to allow them to proceed in the corporate name after any interval of time. There can be no doubt of the power of the corporation to commence legal proceedings in its own name at any time during the three years and to continue them to a close unless superseded by trustees or receivers. The old method of appointing receivers or trustees having been repealed, and the statute nevertheless providing for suits after as well as before dissolution, it may be open to consideration how far it may have effect to enlarge the entire operation of the three years’ clause in cases where it is otherwise applicable, or how trustees are to be appointed if not chosen, which we need not now consider.
It is quite clear that where corporations are created under general laws, which allow an existence of thirty years, and which, as in the present case, éxpressly authorize transactions which in the usual course of things could not be all brought into litigation within three years after any sudden dissolution, it would not be competent for the legislature to adopt any arbitrary terms of repeal which would destroy contracts or other assured rights. And we are bound if possible, to construe any such repeal so as to make it valid rather than invalid. If no reference had been made to the Compiled Laws, they would still, so far as they lawfully could do so, apply .in aid of the repealing statute. There was no need of referring to them for such a purpose, and such references are not usual. For any other purpose the reference is entirely too blind to be very significant. Chapter 130 of the Compiled Laws, besides including one chapter of the Revised Statutes, contains a great many provisions in the shape of independent statutes, passed at different times, and contains provisions for the dissolution of some corporations different from those applicable to others. We held in Mok v. Detroit Building & Savings Association before referred to, that when one act undertakes to eke out its own provisions by reference to another, the reference to be controlling must be so definite as to create no possible ambiguity. The Compiled Laws have not the force of a revision. That is prohibited by the Constitution. Where any chapter of the Compiled Laws is made up of several independent statutes, such a reference as was here made is too vague to be permitted to incorporate any particular provision of that chapter into the repealing law, without creating the mischief pointed out in the case cited; especially as it is not impossible there may be causes of action which could not lawfully be cut off in three years. Nor is such an intent apparent.
The primary object of the repeal was to prevent the continuance of corporate franchises in the future in the Lower Peninsula. In view of existing legislation it cannot be supposed, or at least it can not be admitted, that the Legislature meant to prevent the enforcement of existing demands. The reference to the Compiled Laws for the distinction between continuing the' old franchises and winding up the corporate concerns, although not needed, may be of some use in explaining the difference. But when the repealing act, which authorizes the corporation to continue for the latter purpose, fixes no limit of time, we cannot interpolate a three years’ clause on such a general reference; and if we did so we should raise confusion by ignoring the sections in the chapter on voluntary dissolution, which as part of the Revised Statutes of 1846, constituting in law but one statute, modified that portion of chapter 130 of the Compiled Laws which was borrowed from the same Revision. We think the repealing clause, while prohibiting a continuance in ordinary business, leaves the corporate existence for winding-up purposes unchanged. There is therefore nothing to prevent the continuance of these proceedings, either in the circuit court or in this court, or to interfere with their enforcement in the name of the corporation.
The proceedings appealed from must be affirmed with costs.
The other Justices concurred. | [
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Marston, J.
Two questions are raised in this case: First. Can one tenant in common of chattels maintain an action of trover against his co-tenant, after demand made that he be admitted to his rights as a co-tenant, and a refusal to recognize such rights, coupled with a distinct claim of entire ownership? and
Second. Can a mortgagee of chattels, entitled to the possession thereof under his mortgage, maintain trover for their conversion?
Both questions must be answered in the affirmative. The first is distinctly passed upon in Bray v. Bray, 30 Mich., 479; Webb v. Mann, 3 Mich., 139.
The second question was indirectly raised and passed upon in Harvey v. McAdams, 32 Mich., 473, where mortgagees of personal property maintained such an action against parties who had interfered with their right to the possession of the property.
It was supposed that under the recent decisions in this State, holding that the true relation existing between mortgagor and mortgagee is that of debtor on the one side, and creditor secured by lien upon the other, and that the title of the mortgagee does not become absolute until he has foreclosed, or done some act equivalent thereto, would prevent him from maintaining this action. Such is not however the legitimate conclusion. The mortgagee still has a sufficient property in the goods and chattels to enable him to take possession thereof, as against the mortgagor and those claiming through or under him, as well as against strangers to the title. He does not, upon default made in the payment at the time mentioned in the mortgage, become the absolute owner of the goods. The mortgagor may still come in and redeem, and herein lies the principal distinction between the older decisions and those of more recent date. A mortgage of personal property is now treated, as it should be, as a mere security for the debt,'in the same manner, as is a mortgage of real estate. Were it not for the statutes of this State, a mortgagee of real estate might still maintain ejectment against the mortgagor before becoming the absolute owner upon a foreclosure of his mortgage. So a mortgagee of chattels may maintain trover against any person wrongfully interfering with his right to the possession of the mortgaged property, even before condition broken.
The judgment must be reversed with costs and a new trial ordered.
The other Justices concurred. | [
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Dethmers, C. J.
This appeal is from a circuit court order permitting defendant, administrator of decedent’s estate, to take the discovery deposition of plaintiff, an opposite party, without waiving plaintiff’s disqualification under the so-called dead man’s statute (CL 1948, §617.65 [Stat Ann §27.914]) to testify, at the trial, concerning the same subject matter.
Suit is for specific performance of an alleged oral agreement under which decedent was to leave all his property, upon his death, to plaintiff.
Plaintiff says the order is grossly unfair because it permits defendant to obtain all of the information relating to the transaction from plaintiff, use it against her, and yet prevent her, at the trial, from testifying on those matters in her own behalf. Plaintiff cites in support of this In re Renee, 159 Ohio St 37 (110 NE2d 795, 42 ALR2d 572). In that case the court held that, in an action brought by an executor, the defendant cannot be required to give testimony by way of deposition as to matters concerning which such defendant is prohibited from testifying on trial by reason of the provisions of the Ohio dead man’s statute (Ohio General Code, § 11495). The decision was by a closely divided court. The Ohio statute, as distinguished from Michigan’s, prohibits the opposite party from testifying at all in the cause. The court referred to its earlier decision in Prince, Executrix, v. Abersold, 123 Ohio St 464 (175 NE 862), in which it was held that the taking of a deposition of the opposite party, which is not offered in evidence at the trial, does not waive the statutory inhibition against the testimony of the party whose deposition is so taken. On the basis of such statute and earlier holding, the majority of the court held that one who is thus disqualified to be a witness is not, under the language of the statute governing taking of depositions (Ohio General Code, § 11525), one whose deposition can be taken. The court said:
“The necessary conclusion is that the capacity to be a witness and to testify must exist before the person’s deposition can be taken.”
This was because the statute in question provided for the taking of “the deposition of a witness.” That reasoning is inapplicable to Michigan Court Rule No 35, § 6(a) (1945), providing for taking the testimony, by deposition or otherwise, “of any person.”
It is of interest to note, with respect to the holding in Prince, Executrix, v. Abersold, supra, to the effect that taking the deposition does not constitute a waiver at trial, that there is division of authority on this question. See annotations, 64 ALR 1148, 1165, 107 ALR 482, 491, and 159 ALR 411, 422. Our question here, however, is not whether a waiver at trial was worked by the earlier taking of a discovery deposition, but rather, whether the opposite party may he required to submit to such discovery without a waiver by the party seeking it of the disqualification under the dead man’s statute.
The purpose of the latter statute is stated in Farmers & Merchants Bank & Trust Co. v. Globe Indemnity Co., 264 Mich 395, 400, 401, as follows:
“The statute relied upon as originally enacted was designed to afford protection to estates against the knavery and perjury of dishonest claimants (Kimball v. Kimball, 16 Mich 211); fraud and injustice (Penny v. Croul, 87 Mich 15 [13 LRA 83]); protect the estate of deceased persons against claims which depended in whole or in part upon testimony of a party which could not be refuted by the testimony of deceased (McHugh v. Dowd’s Estate, 86 Mich 412); prevent a living party from obtaining an unequal advantage from his own testimony as to matters known only to himself and the deceased, and of which the deceased party could no longer speak (Wright v. Wilson, 17 Mich 192; Chambers v. Hill, 34 Mich 523); prevent fraud and false swearing whereby estates became unjustly depleted in cases where no one on the part of the estate except the deceased had knowledge of the facts necessary to refute the unjust claim attempted to be enforced against it.”
In Applebaum v. Wechsler, 350 Mich 636, 650, this Court said:
“Tbe purpose of modern pleading is to give the parties adequate notice of the issues they are to meet. The pretrial conference is intended to narrow and simplify such issues, to consider the necessity of amendments to the pleadings, and, generally speaking, to assure that the issues raised may be expeditiously tried.* Its purpose is to achieve rapid and efficient administration of justice by eliminating traps and surprises.”
As observed in Honigman’s Michigan Court Rules Annotated, 1959 Pocket Part, p 77, the rule for discovery represents an important extension of the concepts of pretrial practice and gives that procedure considerable impetus. Of its purpose, we said in Ewer v. Dietrich, 346 Mich 535, 541, 542:
“In Hallett v. Michigan Consolidated Gas Co., 298 Mich 582, 592, we stated the underlying principle of the discovery process in somewhat similar terms:
“ ‘Comparatively recent procedure for compelling discovery of the facts and circumstances of a controversy in advance of joining issue or in advance of trial is well established. * * * The recent trend and purpose of statutes and court rules is to provide accurate information in advance of trial as to the actual facts and circumstances of a controversy. We have already said such rules must be liberally construed. They should promote the discovery of the true facts and circumstances of a controversy, rather than aid in their concealment.’ * * *
“As we said in Vincent v. Van Blooys, 263 Mich 312, 314:
“ ‘Aside from its advantage to a party in discovering the opponent’s claim, the rule has a public pur pose which should he served in its interpretation, arising from reducing the time of the trial by narrowing the issues, obtaining admissions of fact, fixing the claims of the parties when the incidents are fresh in their minds, and otherwise fostering accuracy and celerity of trial, and also from inducing settlements, which are made more easy when the respective claims are known.’ ”
It is apparent that there is no conflict between the purposes, as above considered, of the dead man’s statute and the rule for discovery. Both are intended to aid in arrival at truth and justice in litigation. Invoking the one need not be treated as a waiver of the other. Enabling both parties to become fully conversant with all the facts involved in a matter and to avoid “traps and surprises” makes for enlightened administration of justice. Its achievement need not be paid for by sacrifice of the object or purpose of the dead man’s statute. There is no unfairness in permitting defendants and their counsel to know what plaintiff’s claims are and the foundation on which she bases them and, yet, at the same time, closing her mouth at trial as to matters equally within the knowledge of the deceased whose mouth has been closed by death.
Court Rule No 35, § 6, in providing for pretrial depositions and discovery, permits examination of the deponent only “regarding any matter, not privileged and admissible under the. rules of evidence governing trials, which is relevant to the subject matter involved in the pending action.” It is suggested that this limitation of the examination to matters admissible under the rules of evidence governing trials, denies to the protected party the right to examine the opposite party on discovery as to matters equally within the knowledge of the deceased concerning which the latter is prohibited by statute from testifying at trial. It will be noted, however, that, at least so far as matters not privileged are concerned, the limitation pertains not to the identity, qualifications, or competence of a witness but to the competency of the evidence and its relevance to the subject matter of the litigation. This limitation was intended to prevent fishing expeditions into areas unrelated to the cause of action, not to impede a party in discovering from any person, whether competent as a witness or not, all facts and information, not privileged, which are relevant to that cause of action. Indeed, it is the gaining of such information, from whatever source, that the rule was designed to facilitate.
Although Michigan Court Rule No 31, § 1 (1945), provides that when a deposition has been taken by either party it may be read by the other party on the trial, this Court held in Webb Coal Co. v. Bay City School District, 342 Mich 116, that that provision does not invalidate objections to the competency of evidence therein contained and that they may be raised for the first time on trial. See, also, in this connection, Angell v. Rosenbury, 12 Mich 241, and Bliss v. Paine, 11 Mich 92, as to answers to interrogatories under a commission. "We see no sound reason for holding otherwise concerning objections to the competency of a witness to give certain testimony under the mentioned statute. Court Rule No 35, § 6(d), provides that at the trial any part of a deposition may be used against any party present or represented at its taking “so far as admissible under the rules of evidence,” but section 6(e) thereof further provides that objection may be made at trial to receiving any deposition or part thereof “for any reason which would require the exclusion of the evidence if the witnesses were then present and testifying.” This includes the excludable evidence from an opposite party. Clearly, under these provisions of the rules, the party protected under the statute has lost no part of such protection at trial by the earlier taking of depositions on the matters equally within the knowledge of the deceased.
In Fox v. Barrett’s Estate, 117 Mich 162, the party protected under the statute sought to prove a part of a transaction by the opposite party’s own testimony at trial, and then to close his mouth as to the remainder. This Court declined to permit this. In In re Potter Estate, 351 Mich 326 (66 ALR2d 710), this Court refused to extend the protection of the statute to one not included within the class of litigants covered by its terms. The instant case does not involve such extension nor permission to the protected party to use part of the opposite party’s ex-cludable testimony on trial and to keep out the rest. Neither does the action of the trial court here constitute an expansion of the scope of the statute at a trial beyond what has heretofore obtained under the previous decisions of this Court. It merely gives needed effectiveness to pretrial and discovery proceedings to attain their intended purpose.
The sequel to our reasoning and holding that an opposite party may be required to submit to discovery without the protected party’s waiver of the disqualification under the statute, is that the right of a protected party to discovery and the trial court’s discretion in permitting it are in no wise to be affected by nor made dependent upon either the invoking or waiver of the protection of the statute. Court Buie No 35 contains no authorization for a court to compel parties, on pretrial or granting of discovery, to claim or waive the protection of the statute as is provided in section 6(b) thereof with respect to the physician-patient and hospital-patient privilege. Accordingly, there is no occasion to anticipate that the grant of discovery will produce a variance, in the several circuits, in its effects upon or the consequences of the dead man’s statute.
Affirmed, with costs to defendants.
Carr, Smith, and Edwards, JJ., concurred with Dethmers, C. J.
Page’s Ohio Code Anno, § 2317.03.—Reporter.
Page’s Ohio Code Anno, § 2319.05.—Reporter.
See 334 Mich xl and 352 Mich xvii.—Reporter.
See Court Rule No 23, § 3 (1945).—Reporter.
See Court Rule No 35, § 5 (1945).—Reporter.
See Court Rules Nos 40, 41 (1945).—Reporter. | [
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] |
Kelly, J.
This is an appeal from a Wayne county circuit court finding that a television program known as “Play Marko” was not a lottery.
The successive Michigan Constitutions (Const 1835, art 12, § 6; Const 1850, art 4, § 27; Const 1908, art 5, § 33) have, in language materially unchanged from the original phraseology, prohibited legislative authorization of lotteries by providing that:' “The legislature shall not authorize any lottery nor permit the sale of lottery tickets.”
The constitutional mandate was implemented by RS 1838, pt 4, title 1, ch 10, re-enacted by RS 1846, eh 160, a statute which, with minor amendments in' 1867 (PA 1867, No 86) and in the penal code (PA 1931, No 328), remains the law today. CL 1948, ■§ 750.372 [Stat Ann 1954 Rev § 28.604] provides:
“Any person who shall set up or promote within this State any lottery or gift enterprise for money, or shall dispose of any property, real or personal, goods, chattels or merchandise or valuable thing, by the way of lottery or gift enterprise, and any person who shall aid, either by printing or writing, or shall in any way be concerned in the setting up, managing or drawing of any such lottery or gift enterprise, or who shall in any house, shop or building owned or occupied by him or under his control, knowingly permit the setting up, managing or drawing of any such lottery or gift enterprise, or the sale of any lottery ticket or share of a ticket, or any other writing, certificate, bill, goods, chattels or merchandise, token or other device purporting or intended to entitle the holder or bearer or other person to any prize or gift, or to any share of or interest in any prize or gift to be drawn in any such lottery or gift enterprise, or who shall knowingly suffer money or other property to be raffled for in such house, shop or building, or to be there won by throwing or using dice, or by any other game or course of chance, shall for every such offense be guilty of a misdemeanor, punishable by imprisonment in the State prison not more than 2 years or by a fine of not more than $1,000.”
The television program under question consists, of drawing and televising numbers by the television station. The participant in his home, or elsewhere, observes a television screen and ascertains whether the numbers drawn match the vertical, horizontal, or diagonal set of numbers on his card. The participant may use a card distributed by plaintiff or he may prepare his own card, which participant forwards to the television station where it is registered and then returned to participant with notice of the broadcasting day on which the card may be used. If participant matches numbers, he notifies the broadcasting station and is awarded a prize.
There has been no substantial legislative change since People v. Reilly (1883), 50 Mich 384. In this decision in which Justice Cooley participated, the Court traced the legislative history, background and intent of the statute, and called attention to the fact that lotteries were allowed to raise money for public improvement, such as for the benefit of Detroit after the destruction of the city by fire in 1805; for the benefit of the university in 1817, and the 1829 lotteries to secure free bridges and improved highway communication between Detroit and Monroe; that the 1835 Constitution “clearly referred to the class of enterprises which had formerly been lawful if authorized by law”; that the statute of 1828 “covered all such cases adequately, and remained unchanged until the Revised Statutes of 1838, which introduced the sections now in force, and which has only been once amended, in 1867.”
In this People v. Reilly decision, supra, our Court said (pp 387, 388):
“In 1867 (PA 1867, No 86, p 122) an amendment was made inserting after the word ‘lottery,’ when it occurred, the words ‘or gift enterprises,’ but in no other way varying the substance of the statute, which still remains a.s then amended. This change was no doubt introduced from a doubt whether the gift enterprises which were then becoming numer ous, belonged strictly to the class of lotteries, because in some respects conducted in different ways, although reaching similar results.
“No one can compare the legislation of the State without seeing that the legislature has found it desirable to deal with lotteries differently as well as more severely than with other gambling transactions. The reason is not difficult to find. Lotteries generally involve large sums of money, or large prizes of some kind, and circulate their tickets in large numbers and in all parts of the country. All classes and persons of all ages are tempted to invest in the chances of sudden riches, and it is a matter of history that the passion for such investment has led to serious and wide-spread mischief. No other form of gambling operates as extensively in its dealings or demoralizes so many people. It is this extensive reach and not merely its speculative purposes which makes lottery-gambling* so dangerous-. The profits are so great -that small penalties might not he efficacious enough to suppress the business, and the changes of our own legislation indicate this by the successive addition of imprisonment in the county jail, and even in the State prison, to the large fine first imposed in 1828.
“It is not safe to extend these serious consequences by construction to cases which are not fairly within the language of the Constitution and statutes, especially as the legislature has made provision for much lighter punishment in those cases of gambling which are more confined in their action, and therefore less likely to do mischief on a large scale. We think that it would be straining the law to include such acts as those of the respondent within the category of lotteries, and therefore we must treat the case as one which has not been placed by the legislature under the classification of offenses which should be left to be dealt with by the municipal by-laws and ordinances, as well as by State laws.”
A television program similar in every way to the television program now being considered was decided not to be a lottery by'the District of Columbia circuit of the United States court of appeals. In that decision (Caples Company v. United States, 100 App DC 126 [243 F2d 232]), the court stated:
“Petitioner contends that the commission’s ruling is contrary to the supreme court’s decision in Federal Communications Commission v. American Broadcasting Co., Inc. (1954), 347 US 284 (74 S Ct 593, 98 L ed 699), construing earlier antilottery regulations. The court held that, since the regulations were bottomed squarely on a criminal statute, 18 USC, § 1304 (based upon section 316 of the communications act of 1934, 47 USC, § 316), the regulations must be as strictly construed as the statute. The statute, and therefore the regulations, said the court, proscribe ‘(1) the distribution of prizes; (2) according to chance;'(3) for a consideration.’ 347 US at page 290, 74 S Ct at page 598, emphasis supplied. In that case, as in this, only the existence of consideration was in question. The court found that, in the program there involved, ‘not a single home contestant is required to purchase anything or pay an admission price or leave his home to visit the promoter’s place of business; the only effort required for participation is listening.’ Id. 347 US at page 294, 74 S Ct at page 600, emphasis supplied. It held this effort alone insufficient consideration for the purposes of a penal statute.
“The commission says American Broadcasting Co. is not controlling here because ‘Play Marko’ requires something more than ‘listening,’ in that the cards necessary for participation can only be obtained from the sponsor’s stores or outlets. The requirement of a visit by the participant, or someone on his behalf, is said to be a thing of value since it is of benefit to the sponsor.
“We agree that the requirement of obtaining the cards from the sponsor’s stores or outlets is something more than ‘listening’ and, perhaps, makes the program here more objectionable. But the commis sion tells us that its ruling ‘is not an- expression .of the commission’s judgment as to the quality or desirability ■ of the program but an interpretation of a Federal statute specifically prohibiting the broadcast of lotteries.’ When the test- laid down by the supreme court is applied, we conclude that ‘it would [still] be stretching the statute to the ’breaking point to give it an interpretation that would make such programs a crime.’ Ibid. The undesirability of this type of programming is not' enough to brand those responsible for it as criminals. Protection of -the public interest will have to .be sought by means not pegged so tightly to the criminal statute or in additional legislative authority.”
In Federal Communications Commission v. American Broadcasting Co., Inc., 347 US 284 (74 S Ct 593, 98 L ed 699), the court dealt with the prohibition by the Federal communications commission of the broadcasting of programs because of a Federal statute forbidding the broadcasting of “any lottery, gift enterprise, or similar scheme, offering prizes dependent in whole or in part upon lot ■ or chance.” The United States supreme court in an unanimous opinion, written by Chief Justice Warren, held that no lottery existed, and said (p 293):
“We find no decisions precisely in point on the facts of the eases before us. The courts have defined consideration in various ways, but so far as we are aware none has ever held that a contestant’s listening at home to a radio or television program satisfies the consideration requirement. Some courts —with vigorous protest from others — have held that the requirement is satisfied by a ‘raffle’ scheme giving free chances to persons who go to a store to register in order to participate in the drawing of a prize, and similarly by a ‘bank night’ scheme giving free chances to persons who gather in front of a motion picture theatre in order to participate in a drawing held for the primary benefit of the paid patrons of the theatre. Bnt such eases differ substantially from the cases before us. To be eligible for a prize on the ‘give-away’ programs involved here, not a single home contestant is required to purchase anything or. pay an admission price or leave his home to visit the promoter’s place of business; the only effort required for participation is listening.”
Reporting the same case in 98 L ed 699, a headnote reads:
“A ‘giveaway’ program broadcasted by a radio or television broadcasting company, that is, the distribution of prizes to home listeners, selected wholly or in part on the basis of chance, as an award for correctly solving a given problem or answering a question, does not constitute a ‘lottery, gift enterprise, or similar scheme,’ the broadcasting of which is prohibited by 18 US C, § 1304,”
The Alabama supreme court in Clark v. State, 262 Ala 462 (80 So2d 312), considered the question whether a lottery existed where the operator of a store awarded prizes to contestants whose names were drawn on weekly television programs. The court held:
“Scheme whereby prizes were given by operator of store to contestants whose names were drawn on weekly television program without contestants being required to make any purchase or pay any money, was not a ‘lottery’, though purpose of scheme was to increase store’s business through television advertising.” (Syllabus.)
The prosecuting attorney relies upon the Colonial Theatre Cases (Sproat-Temple Theatre Corp. v. Colonial Theatrical Enterprise, Inc., 276 Mich 127, and United-Detroit Theaters Corp. v. Colonial Theatrical Enterprise, Inc., 280 Mich 425). Both of these cases dealt with the theater’s plans whereby prizes were awarded to occupants of the theater, or those in the lobby, or in the immediate vicinity of the theater, who held tickets or cards bearing the numbers drawn from a container.
Each of these cases required the participants’ presence, either in the theater or in the immediate vicinity, and presented an entirely different combination of facts than are presented in this appeal.
The trial court’s opinion stated :•
“Michigan statutes do not define lotteries. The elements of a lottery are not set forth in the statute and, therefore, this has been left to the courts.
“Our lottery statute has been on the books for many years and was passed to prevent the mulcting or cheating of the public by the sale of gambling chances.
“In 41 Georgetown L J, 556, 558, it is said that authority is only as good as the reason for it, and the evil sought to be eradicated by the lottery statutes was the impoverishment of the participant, and the enrichment of the promoter of the scheme, but this evil results only when the participant pays something valuable for the chance to win a prize.
“It is the opinion of the court that these radio1 and television programs do not encourage gambling because the person is passive as far as the giveaway plan is concerned; also, it seems to follow that the radio and television programs are not included within the prohibition of the statutes.
“The courts have been quite realistic in viewing giveaway programs only as a nuisance in our time and not as the evil of the century.
“The court therefore holds that television program ‘Play Marko’ is not a lottery within the meaning of the statute.”
We agree with the trial court, and hold that if television programs such as considered in this appeal are to be prohibited it must be by legislative action and not by decision of the court.
Affirmed. No costs, a public question being involved.
Dethmers, C. J., and Carr, ■ Smith, Black, Edwards, and Kavanagh, JJ., concurred.
Souris, J., took no part in the decision of this case. | [
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] |
Dethmers, C. J.
Plaintiffs in these 2 cases are husband and wife. Suit is for costs of automobile repairs and for damages resulting from the wife’s personal injuries caused by one of the defendants driving a tractor-trailer, owned by the other, into the rear of the automobile owned by the husband and then being operated by the wife, hereinafter called the plaintiff. The 2 cases were consolidated for trial as they are on appeal here. Plaintiffs appeal from a jury verdict of no cause for action and denial of their motions for new trial.
The plaintiff was driving the automobile, at a rate of speed of 35 miles per hour, in the lane next to the center line of a 4-lane city street, along the left side of a bus traveling in the same direction. The tractor-trailer was following the bus, in the outer lane, at about 25 miles per hour. The bus slowed down, whereupon defendant driver turned into the center lane behind the plaintiff, and accelerated to pass the bus. Plaintiff testified that when the bus slowed down, she did so also, applying the brake and reducing her speed from 35 to about 15 or 20 miles per hour. Defendant driver testified, however, that she made a sudden stop. Plaintiff testified that she had'not intended to stop, and she gave no reason why either stopping or decelerating was necessary. Shé testified that she knew the traffic was heavy, but that she did not look at her rear-view mirror or look back at all, that she never saw defendants’ truck before it struck her, and that she' did not give any signal of her intention to slow down. As soon as defendant driver noticed plaintiff slow down, or, as he termed it, suddenly stop, he “slammed” his brakes on, but was unable to avoid striking the rear of the automobile with the front of the tractor-trailer.
The question whether defendant driver was guilty of negligence as a matter of law, mentioned in plaintiffs’ brief, was not raised below, either by requests to charge, or by motions for directed verdict or judgment non obstante veredicto. It is not before us.
Plaintiffs say the verdict is contrary to the great weight of the evidence. Whatever may be the conflicting views as to the question of defendant driver’s negligence, as may be gathered from the opinions in Sun Oil Co. v. Seamon, 349 Mich 387, evidence of the conduct of the plaintiff in the instant case presented a jury question as to her contributory negligence, and a finding against her by the jury on the question cannot be said to be against the great weight of the evidence.
Was it error for the court to fail to give plaintiffs’ requested charge, in line with CLS 1956, § 257.402 (Stat Ann 1952 Rev § 9.2102), that defendant driver’s striking the rear of plaintiffs’ vehicle makes bi-m prima facie guilty of negligence? Plaintiffs say yes, citing Gordon v. Hartwick, 325 Mich 534, and Corbin v. Yellow Cab Co., 349 Mich 434. Gordon was tried without a jury, thus presenting no question as to instructions. While the opinion contains a statement that a “rear-end collision is presumptive evidence of negligence on the part of the driver of the following car,” decision did not turn on the question of a presumption or of prima facie negligence, but on whether a finding of no negligence was against the clear preponderance of the evidence. In Corbin, as distinguished from the instant case, plaintiff had good reason to stop, for a train and line-up of cars ahead of her, she saw defendant approaching behind her, signalled her intention of stopping, and came to a stop slowly. In that case this Court, in finding, under the evidence or paucity thereof in that case, no error in the trial court’s instruction similar to that here requested by plaintiffs, nonetheless said concerning the presumption here in question (p 440), that “It is the rule that in the absence of evidence, the presumption applies.” There was no absence of such evidence at bar. On the contrary, there was evidence that the plaintiff either slowed down or stopped suddenly, for no apparent reason, without giving any signal of her intent so to do. Here there was evidence which, as said in the case of Patt v. Dilley, 273 Mich 601, caused the presumption to disappear. As held in that case, under such circumstances, the giving of an instruction, as plaintiffs requested, would have been error. This evidence would also bring into play the reasoning and holding in Rossien v. Berry, 305 Mich 693, that it was not, as plaintiffs here claim, error for the court to give an instruction on the question of a sudden emergency confronting defendant driver.
Plaintiffs complain of being curtailed by the court in the cross-examination of defendant driver. No showing is made of undue curtailing, that the exam ination was other than repetitious, as the court styled it, what it was that plaintiffs expected to show that had not already been developed, or how plaintiffs were prejudiced in this connection. We find no error on this account.
Plaintiffs complain of the court permitting defendants’ counsel to argue incorrect law, without itself correcting it. The criticized argument related to a subject of little and hut indirect significance to the case, serving, at most, to reflect on the plaintiff as a witness. Plaintiffs’ counsel immediately objected to the argument, it was not pursued further by defendants’ counsel, plaintiffs made no request to charge on the subject, and the court gave none. No prejudicial error resulted.
Trial commenced on Wednesday, May 28, 1958, continued on Thursday, May 29th, and, at the end of that day, was adjourned over the Memorial Day week end until Tuesday, June 3d. On the latter date one additional witness was sworn and testified, counsel made their arguments, the court charged the jurors, and they returned their verdict. On June 1,, 1958, Michigan Court Rule No 23, § 3a, became effective “in all negligence cases tried after the effective date” thereof. It provided that “the contributory negligence of the plaintiff shall he deemed to he a matter of affirmative defense to he pleaded and proved by defendant.” Prior thereto the burden was on plaintiff to prove her freedom from contributory negligence. Plaintiffs charge error on the court’s refusal to charge, as plaintiffs requested, that the burden of proof was on defendants to show the plaintiff was guilty of contributory negligence and charging them, instead, that the burden was on plaintiff to prove her freedom therefrom. The new section 3a also provides that “in cases pending as of the effee tive date of this rule, amendments to pleading's to conform to its provisions shall be granted on motion filed prior to trial.” It is obvious that in this case, tried almost entirely before the effective date of the new rule, it was impossible on that date to grant amendment to the pleadings to which a motion filed prior to trial was prerequisite, there having been no requirement for filing such motion before June 1st. The quoted language as to amendments makes it plain that no such switch of rules was intended to become controlling in the midst of the trial of a lawsuit. This was not a case tried after the effective date of the new rule. The court’s charge was correct.
Plaintiffs also complain of the court’s instructions as to definition of contributory negligence and its application and refusing to give plaintiffs’ requests relative to amount of care required of the respective parties. The instructions in their entirety adequately, fairly, and correctly covered these subjects.
Affirmed, with costs to defendants.
Carr, Kelly, Smith, and Edwards, JJ., concurred with Dethmers, C. J.
See 352 Mieh xiv.—Reportes.
After proper quotation of the statute (CLS 1956, § 257.402 [Stat Ann 1952 Rev § 9.2102] ) plaintiffs’ said request proceeds relevantly as follows:
“If the party to this action violated the statute just read to you, the presumption arrives that he was negligent. This presumption is not a conclusive one. It may be overcome by other evidence showing that under all the circumstances surrounding the event the conduct in question was excusable, justifiable, and such.which .might reasonably have been expected from a person of ordinary prudence.” | [
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Black, J.
Counsel for appellant (defendant Louis Whitsitt) has favored us with an excellent and helpful brief. The statement of facts set forth therein is sufficient as well as accurate, and, since it is not traversed by tbe people according to the requirements of Court Rule No 68 (1945), I would accept it for tbe purposes of present decision (see section 2 of Court Rule No 67 [1945], as amended April 15, 1959, effective July 1, 1959. )
So much of appellant’s said statement as is deemed requisite for present purposes is quoted as follows:
“Louis Whitsitt, a 17-year-old youth, was brought before Macomb county circuit judge Neil E. Reid at 5 p.m. on Saturday, September 9,1933, along with 3 other codefendants. They ‘were not represented by counsel.’ The information filed against them (after they waived examination on the same afternoon) charged them with the murder of one Joseph Nesbitt (first count), and armed robbery (second count), in taking from Mr. Nesbitt a 1931 Buick automobile and $87 cash on September 7, 1933.
“After each defendant pleaded guilty, the court took testimony from the defendants and made a determination that the crime was first-degree murder, and sentenced Louis Whitsitt, appellant, and the other defendants to life imprisonment, to be served concurrently with a 45-to-90 year sentence (imposed in Detroit recorder’s court) on the same day upon guilty pleas to kidnapping Mr. Nesbitt (also without benefit of counsel).
“The 4 defendants (Robert Frazer, Robert Buffa, Douglas Whitsitt, and Louis Whitsitt) entered a Buick vehicle occupied by Joseph Nesbitt (Buffa thought it was about 11 p.m.) on September 7, 1933, at Chalmers and East Jefferson streets in the city of Detroit, Wayne county. Robert Frazer, the only one Avho had a gun, ordered Mr. Nesbitt to move over, and Buffa to sit at the steering wheel and the 2 Whitsitt boys in the back seat. Buffa drove out Jefferson and then on Gratiot into Macomb county to a side road ‘this side of Muttonville’ where a robbery and shooting occurred. Frazer ordered ‘all to get out of the car,’ but Louis Whitsitt stayed in the back seat. Frazer told Buffa to search Mr. Nesbitt and Buffa took his watch and pocketbook and gave them to Frazer. Frazer ‘just shot him after that.’ Buffa had ‘to jump on one side to keep from getting hit.’ Mr. Nesbitt was left lying in the road. The judge said he was shot 3 times. Frazer ordered them back into the car. Buffa drove the car out from Detroit, and back to Detroit after the shooting, and did not stop anywhere on the way back to Detroit.
“Douglas Whitsitt denied there was any plan to rob Mr. Nesbitt, or to shoot him to cover up — that the only plan was to steal a car in Detroit for a ride to Port Huron where he and his brother Louis lived. They were going to take Mr. Nesbitt to the city limits and let him walk back. Robert Buffa testified that Louis Whitsitt was not part of a plan for a holdup, but ‘just to take the car.’ Douglas Whitsitt testified that Louis Whitsitt ‘didn’t have anything to do with it.’ Once, Robert Buffa started to testify that Louis Whitsitt was not part of the party — ‘but Louis there, he didn’t,’ and then Buffa was interrupted by the judge. Buffa further said he wanted to leave Mr. Nesbitt to walk back, and ‘all at once I heard 6 shots.’ Douglas Whitsitt tried to take the gun away from Frazer. Frazer testified that he was under the influence of liquor and didn’t know what he was doing — and he was not conscious of the fact he was shooting the man. He remembered it later, but ‘everything went out nearly at once.’ Louis Whitsitt testified that it was the first time he had ever been in anything, and he didn’t know there was to be a holdup, that the agreement was to get a car — and further that Frazer was drunk, and he was half crazy.
“After each defendant pleaded guilty, the judge asked each defendant whether he wanted an attorney, but did not inform them that they had a right to counsel, nor did he offer to appoint counsel at county expense if they lacked funds. * * *
“Appellant’s last new trial motion was heard and denied on December 16, 1957, by Judge Alton Noe, successor to Judge Reid. Judge Noe also denied previous motions in 1947, 1949, 1950, and 1952. In substance, Judge Noe’s opinions are that appellant knew the 4 defendants planned to take a car in Detroit; that he was present in the car in Macomb county at the time of the robbery and received some of the cash; that his failure to notify anyone that Mr. Nesbitt was lying on the road wounded resulted in his death; that a ‘rather detailed explanation of his rights was given him by the court’; that he ‘was accorded every right to which he was entitled’ and opportunity to have counsel; that he waived his right to counsel, and that his guilty plea ‘was based upon a sufficient knowledge of his constitutional guaranties,’ and that in Michigan the ‘State is not compelled to provide counsel for a respondent.’ ”
Appellant applied in due time for leave to review the order of December 16, 1957, by which his latest motion for new trial was denied. December 2, 1958, we granted the application, following consideration of a memorandum — prepared by a member of the Court — reciting in part as follows:
_ “Whitsitt’s main contention is that if he had been given a clear opportunity to have counsel, he would have been able to properly establish defenses available to him at the murder charge. He asserts that because of his youth and lack of understanding of the legal processes, counsel should have been provided for him.”
I conclude on review of the briefs and joint appendix that appellant is right in such regard; that counsel should have been provided for him on the occa sion of arraignment and before acceptance of plea, and that the so-called “totality of circumstances” shown here discloses rather forcibly that appellant has not as yet received the process that is due as a lawful condition of sentence for guilt as charged.
No lawyer of competence (we must presume the competence of counsel if and when furnished on order of one of our circuit judges) would have advised this youthful defendant to plead guilty to our most serious crime. The reason is record-apparent. The investigative facts upon which the sentencing judge assumed to accept appellant’s plea were hurriedly adduced, late in the one day of dual arraignment and dual sentence of all 4 defendants in separate courts, during the course of the statutorily required proceeding “to determine the degree of the crime” (CL 1948, § 750.318, CL 1929, § 16710 [Stat Ann and Stat Ann 1954 Rev § 28.550]). No one undertook to explain, to appellant (he remained, so far as the record discloses, in the car without knowledge of any homicidal intent or purpose of codefendant Robert Frazer), the elements distinguishing first-degree murder from lesser offenses of which he was or might have been guilty. No one bothered to suggest that the proof then before the sentencing judge might be insufficient, as a matter of law, to justify conviction of appellant as charged. No one, except 2 of the other defendants, suggested that “the boy” be given “a break.” To this the judge replied “There is only one sentence, under the statute.” 6
This is not to say, of course, that appellant might not then or may not now be convicted of murder in the first degree of Mr. Nesbitt. It is to say that the hearing before the sentencing judge disclosed no proof that the “degree of the crime” of all defendants was the same.
Here, as in Moore v. Michigan, 355 US 155, 160 (78 S Ct 191, 2 L ed 2d 167), “The record shows possible defenses which might reasonably have been asserted at trial, but the extent of their availability raised questions of considerable technical difficulty obviously beyond his [the defendant’s] capacity to comprehend.” Further, and as said in Moore, supra (same page):
“With the aid of counsel, the petitioner, who, as we have said, neither testified himself in the proceeding nor cross-examined the prosecution’s witnesses, might have done much to establish a lesser degree of the substantive crime, or to establish facts and make arguments which would have mitigated the sentence.”
By force of intervening decisions of the supreme court, notably Moore v. Michigan, supra, and Crooker v. California, 357 US 433 (78 S Ct 1287, 2 L ed2d 1448), it must now be said that Mr. Justice Bushnell’s dissent, in People v. Crandell, 270 Mich 124, 130-134, has become the established law of Michigan. So far as concerns a youthful first-time defendant charged with our most serious crime, it is the duty of judicial officers to see that competent legal representation is provided, certainly by and from the time of arraignment in the court which is duty-charged by present Court Rule No 35-A (1945). Constitutional due process has never admitted less, especially where it is possible (if not manifest) that the prisoner at the bar has been charged with a crime more heinous than that which he apparently has committed.
It is said, however, that appellant waived the benefit of counsel in this case. I do not agree—factually or legally—and preface presentation of the facts (they speak for themselves) with this passage taken from Moore v. Michigan, supra, (p 161):
“Where the right to counsel is of such critical importance as to be an element of due process under the Fourteenth Amendment, a finding of waiver is not lightly to be made.”
Submitted as follows is the sole record upon which it is said that appellant “intelligently and understandingly” waived the advices and aid of counsel:
“Q. [By the Court] You are here without an attorney. Do you desire to have an attorney to represent you in this matter, or are you willing we should go ahead with the case without one?
“A. I think that we may, Your Honor.
“Q. You say that ‘we may’?
“A. Yes, sir.
“Q. Do you want an attorney now?
“A. I would rather leave it up to the other 3 boys, if they wish it.
“Q. The other 3, I understand, do not desire an attorney, and they have not had an attorney.
“A. All right.
“Q. Is it all right with you?
“A. Yes, sir.
“Q. To go ahead, is that what you mean?
“A. Yes, sir.
“The Court: The plea is accepted.”
-.[This.-showing,- compared with' the corresponding showiilg -which came to scrutiny in Moore, suggests that w-e- are presently hound to reach the same conclusion.' (as in Moore). If appellant “waived” the right to counsel, he did so only because the other -3 defendants were’ so inclined. This, to me, was no more ’ an intelligent and understandable waiver of his federally-assured right than was Moore’s stated desire “that he wanted to get the matter over with.” Less so, in fact. The status of the 3 older and definitely implicated, defendants differed legally from that of appellant.
Moore .quotes and follows one of the rules laid down in Pennsylvania, ex rel. Herman, v. Claudy, 350 US 116, 118 (76 S Ct 223, 100 L ed 126), that “where a person convicted in a State court has not intelligently and únderstandingly waived the benefit of counsel and where the circumstances show that his rights could not have been fairly protected without counsel, the due process clause invalidates his conviction.” I would do the same in this case of Whitsitt.
When appellant was arraigned in the Macomb circuit — a quarter century ago — he was entitled by the fard of constitutional due process to the advices of competent. counsel before being ashed to plead to this information. The record, fortified as. it is “by. the inferences which may he drawn from the age of petitioner,” shows that he did not validly waive his right to the aid of counsel. His plea, then, was and is now a nullity.
I hold that appellant’s motion in the court below was erroneously denied and therefore vote to reverse and remand for trial.
.....Dethmers, C. J., and Carr, Kelly, Smith, Edwards, Kavanagh, and Souris, JJ., concurred.
Amendments, 1956, did not affeet this provision. See 347 Mich xxiv.'—Reporter.
See 355 Mieh xiv.—Reporter.
OL 1948, § 750.316 (Stat Ann 1954 Rev § 28.548) .—Reporter.
CL 1948, § 750.529 (Stat Ann 1954 Rev § 28.797).—Reporter.
Defendant Douglas Whitsitt, appellant’s- older brother, testified without dispute — in answer to a question of the judge — as follows:
“The Court: Anything further you want to say?
“A. I would like to say Louis didn’t have anything to do with it; he stayed in the ear, and he didn’t do anything, and didn’t take any of the money off the man.
“Q. Is that all you desire to say?,
“A. Yes.”
The relevant essence of Justice Bushnell’s opinion appears thus (p 132).
“Constitutional principles aside, the simplest principles of fairness and decency, summarized under the name of 'justice,’ impose even a greater burden on courts and prosecutors when the accused is a minor than in other eases; there must be no doubt that the defendant understands his rights, including that of the aid and advice of counsel before his plea is accepted.”
Adopted June 4, 1947. See 318 Mich xxxix.—Beporter. | [
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] |
Smith, J.
The controlling issue in this case is whether a trust has been created or an ordinary contract executed.
The matter arises thus: The Knights of Equity was an organization devoted to the advancement and welfare of persons of Irish descent. It owned certain property in the city of Betroit. In 1924, the corporation (“the old Knights of Equity corporation”) was being dissolved. It had no further use for its property. • Various dispositions thereof were considered (including sale and pro rata distribution of the proceeds to the then members) but all, save one, were rejected.' That is the one before us. It was decided to establish certain scholarships, as hereinafter set forth in detail. In so doing it felt that the works of the “Knights of Equity wohld live forever,” a fitting memorial to this unselfish and praiseworthy organization.' Accordingly, an agreement was entered into. The corporation conveyed certain property to the University of Betroit. The university, in turn, agreed in part as follows:
“2. Said university grants to the society 24 scholarships in perpetuity in its high school and collegiate departments and a commission has been created by the. society with power from it to per petuate itself. * * * This commission shall in perpetuity assign and distribute said scholarships.
“3. In respect to said scholarships, it is understood :
“A. That if in the future the high school of said university becomes a free institution, the scholarships existing therein will be changed to scholarships in one of its collegiate departments.
“B. That any young man taking up the engineering course, which is 5 years, will be allowed to finish his course on the scholarship given him, although in the fifth year another beneficiary may be entered on the same scholarship.
“C. That said commission will not ask the university to retain upon its rolls any student who renders herself or himself subject to dismissal for a breach of any rule or regulation of said university or for lack of proper scholarship, or for any conduct unbecoming a student.”
Other clauses provided that masses for the deceased members of the Knights of Equity would be offered annually and that a university building would be named in their honor.
Trouble has now arisen. We, as well as the trial chancellor, take judicial notice of the shrinkage in the value of the dollar, of the hardships visited upon the recipients of fixed incomes, of the adjustments necessary to be made in their affairs. In short that the suit must be cut to fit the' cloth. The university decided that, with the academic semester commencing in February, 1956, it would require payment of tuition, in part, to make up the difference between the net income it derived from the property and the amount the scholarships represented. Thus in 1955, the net income had been $6,225.76, and the tuition charges allocable to the scholarships, $8,222.34. Each year, in fact, that the scholarships were granted, the net income proved insufficient to support them, but the deficits were met by the university from thé regular university fund. This, it felt, it could no longer continue to do, what with rising costs across the entire scale of university activities. It contended that the intention of the parties in the agreement was not to impose a financial burden upon the school. The scholarships commission (set up by the agreement, supra) countered by bringing the present action. Its contention was that the university had entered upon an enforceable contract to furnish tuition annually, and without additional charge, to 24 students to be nominated by the commission, regardless of what the cost so to do might run. The university’s reply, in part, was that the parties had intended to, and had, set up a trust, that it was obligated to manage the property as a trust and, it further urged, that if the net income was not sufficient fully to defray the cost of the scholarships, under the cy pres doctrine it was justified in applying the trust income, so far as it would go, towards the scholarships, and in billing the appointees of the plaintiff, proportionately, for the balance. It was argued, in addition, that if this were to be held an ordinary contract, the doctrine of commercial frustration would apply to it.
The decision of the chancellor below was that the property was held in trust, that there had been a general intention to devote the property to charitable purposes, that changes in economic conditions had made it impracticable to enforce the terms of the trust as originally framed, which the chancellor found, contemplated fully-paid scholarships, and hence it should be altered, by application of the doctrine of cy pres, so as to relieve the university from the financial drain imposed at this time by the costs of such scholarships paid in full. He concluded that the trust funds should be applied as a “tuition credit” only.
: In arriving at this conclusion the trial chancellor received evidence as to the circumstances surround^ ing. the execution of the agreement. • This evidence was taken for the purpose of establishing'the intention of the parties with respect to the.controverted matter of the creation' of a trust. Objection made on the ground the instrument was a full and complete integration of the agreement of the parties was properly overruled. The agreement did not contain the words “trust” or “trustee,” and although such words are neither necessary to the creation of a trust nor conclusive with respect thereto even if used, their omission does require a most complete review of the. surrounding circumstances in order to determine whether or not a trust has been intended. Here the rule of partial integration applies. Cf. Stimac v. Wissman, 342 Mich 20.
The evidence revealed that the agreement was, in the words of an original member of the scholarships commission, “the memorialization of a charitable deed.” The Knights of Equity, as we noted, had determined in 1924 to dispose of their real property. A committee was appointed to recommend a mode of disposition that would reflect credit on the organization. In all, 10 proposals were considered by the committee. The one that received their approval, and that of the members in general meeting, is outlined in a letter from the president of the University of Detroit:
“May 7, 1924
“Board of Trustees,
Knights of Equity,
Detroit, Michigan.
“Attention: Chairman Dooley
“Gentlemen:
“It has been brought to my attention that there is some thought of the Knights of Equity transferring their real estate to the University of Detroit. I have been told that some question has been raised as to how the University of Detroit might make a fitting-memorial in consideration for such a transfer.
“The Board of Trustees of the University of Detroit hereby authorize the execution of a proper agreement, if the following proposition which we respectfully submit is acceptable to your organization:
“1. A memorial mass every year for the deceased members of the Knights of Equity to be sung in the university chapel with a proper address commemorating the services of your organization to the church and the State.
“2. Twenty-four scholarships in perpetuity to be issued by a commission of your own creation to young men, to any department now existing in the university. I would suggest that these scholarships be issued in series of 3, so that each class graduating from the high school or college will have in it 3 of your beneficiaries.
“(a) With this proviso, that in case the University of Detroit High School ever becomes a free institution, the scholarships existing, in high school will be changed to scholarships in one of the college departments now existing in the university.
“(b) With a further proviso, that any young men taking up the engineering course, which is 5 years, will be allowed to finish the 5 years on the scholarship, although in that same fifth year another beneficiary is entered on the same scholarship in a college course.
“(c) With this further proviso, that your committee will not expect the university to retain upon its roll any of your beneficiaries, if the same have rendered themselves subject to dismissal either for breaches of discipline or for lack of proper scholarship.
“3. Some building in the group of the new university buildings, to be known as ‘Knights of Equity Memorial building.’
“4. That the honor roll as determined' by your organization be presented to the university so that the members thereof may be added to the roll of the founders of the Society of Jesus, and shall in perpetuity be remembered in the masses and prayers of the entire order throughout the world and especially of those members of the order who reside at the University of Detroit.
“Yours very truly,
“University oe Detroit
“By John P. McNichols, S. J.
“Its President.”
The committee recommended that the scholarships be distributed in the discretion of the commission, preference to be given “to those of Irish blood,” but without limitation thereto. It expressed its belief that this proposal would “accomplish good in encouraging sincere and earnest working young men and women so that a direct benefit- [would] come from their efforts and inure to the continued success and prosperity of themselves and of our city.”
We entertain no doubt, upon this record, that the property was intended to be devoted to charitable purposes. The controlling consideration is well expressed by Scott in these words:
“A charitable trust, like an express private trust, is created only if the settlor properly manifests an intention to create it. The settlor need not, however, use any particular language in showing his intention to create a charitable trust; he need not use the word ‘trust’ or ‘trustee.’ It is sufficient if he shows an intention that the property should be held subject to a legal obligation to devote it to purposes which are charitable.”
And, further:
“It is the purpose to which the property is to he devoted which determines whether the trust is charitable, not the motives of the testator in giving it.”
The trust so created was, it is clear, intended for the purpose of encouraging education and of benefiting, ultimately, the people of “our city.” We concur in the opinion of the trial chancellor that the trust was established with general charitable intention. The circumstances surrounding the transaction and the expressed intent of the parties, as well as the time of agreement itself, reject any conclusion that this was purely a contract or that it should be so construed. ‘ Its purposes were unselfish, praiseworthy, and charitable. It will be construed to effectuate the manifest intent of the creators. We do not regard this canon of construction as debatable and to the degree that such cases as Alumnae Association v. University of Pennsylvania, 306 Pa 283 (159 Atl 449), and Hopkins v. Women’s Medical College of Pennsylvania, 331 Pa 42 (200 Atl 32), may properly be construed as inconsistent therewith, their reasoning is rejected. , .
What the situation now boils down to is this: Carrying out the trust in the terms of fully-paid scholarships cannot now be accomplished. To require such on the part of the university must result in a diversion of funds normally available to all students to the beneficiaries of these scholarships. Thus the institution is limited in the accomplishment of its overall objectives by the demands of a few and, should such inflexibility in the use of trust funds become the rule, a curtailment of the facilities otherwise available to all must be the inevitable result. It is to this situation that the cy pres doctrine has peculiar applicability. The authority thus to alter the purposes of a charitable trust cy pres when the net income available is not sufficient to make the purposes practicable was recognized by this Court in Gifford v. First National Bank of Menominee, 285 Mich 58, is applicable to the case at bar, and was properly applied by the trial chancellor. Under the view we have taken of the case it is unnecessary to discuss additional points raised by counsel.
Decree affirmed. No costs, a matter of public interest being involved.
Dethmers, C. J., and Carr, Kelly, Black, Edwards, and Kavanagh, JJ., concurred.
Souris, J., took no part in the decision of this case.
4 Scott, Trusts (2d ed), § 351.
4 Scott, Trusts (2d ed), § 351, at p 2574.
4 Scott, Trusts (2d ed), § 348, at p 2551. | [
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] |
Black, J.
By a simple 2-paragraph will this testatrix bequeathed her entire estate in equal shares to her 2 adult sisters and adult brother. The will was duly admitted to probate.- Thereupon discord arose as the 3 legatees debated ownership of the property content of a safety deposit box. Prior to death of the testatrix, the box was maintained in the joint names of testatrix and 1 of the legatees (Elsie Hunt). While the estate was in course of probate, such legatees executed an agreement providing that the contents of the box be divided a certain way among them and providing further that testatrix’ entire estate, aside from the property found in the safety deposit box, be distributed as in the will provided.
The only seriously advanced question is whether the settlement agreement requires judicial approval under the second and third sections of the so-called Dodge act of 1921 (for discussion and citation see In re Dutton Estate, 347 Mich 186). Presumably, although this is not made clear in the briefs, the appellant (fiduciary of deceased legatee Thomas Webb) expects on hearing under the Dodge act (if ordered by this Court) to show that the agreement of settlement is invalid or, for some appropriate reason considering the statute, that it should not receive judicial approval.
The agreement required no approval of court under the Dodge act or otherwise. The contracting parties were competent, as we must presume, and their agreement in no manner frustrated or sought to evade the expressed will of the testator. See to the point In re Peck’s Estate, 323 Mich 11, 22.
Other presented questions require no consideration. The judgment of the circuit court, affirming the probate court order of assignment of testatrix’ estate, should be affirmed, with costs to appellee.
.Dethmers, C. J., and Carr, Kelly, Smith, Edwards, Kavanagh, and Souris, JJ., concurred.
PA 1921, No 249, re-enactecl and superseded by part of probate code, CL 1948, §§ 702.45-702.48 (Stat Ann 1943 Rev §§27.3178 [115]-27.3178[118]) .—Reporter.
A separate chaneery action, brought by Mr. Webb’s fiduciary to set aside the settlement agreement as fraudulent, was dismissed after the briefs before us were filed. Whether such dismissal was with prejudice does not definitely appear. | [
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Edwards, J.
This is a libel suit by a real estate saleswoman, Marilyn Cochrane, against her former employer, Wittbold & Company, and its president, Robert Wittbold, a real-estate broker. At the trial of the case in Wayne county circuit court, a jury awarded plaintiff $7,500, and the circuit judge denied a motion non obstante veredicto and entered judgment.
On appeal, defendants argue several claims of error as to which we find the first decisive, “that defendants’ charge concerning plaintiff was true, * * * that reasonable men could not differ thereon, and that the trial court should have granted defendants’ motion for judgment non obstante veredicto.”
The charges with which we deal are contained in a statement to the Michigan corporation and securities commission written by Wittbold on a commission form provided for applying for a salesman’s transfer to another broker and in a letter which he sent the commission. Plaintiff had asked defendants to fill out the form for her transfer, at which point they discharged her and sent the statement and letter which follow:
(on reverse side)
“I have discharged Marilyn H. Cochrane for what I consider to be a direct violation of the rales and regulations of the Michigan securities commission. The particular rule that has been violated is a rale which prohibits real estate people from purchasing for their own account listings without revealing to the seller that they are purchasing for their own account. This salesman asked me about the propriety of buying a^ piece of property which we had listed, and I informed her that it was O.K. provided the seller knew full well that she was a purchaser and was no longer acting as the seller’s agent. Salesman proceeded to purchase the property, but instead of buying it in her own name, she had her parents buy it and she received a commission from the seller. Some time later it was pointed out to me that she had executed a conveyance as the owner of the property to a third party on the day that the deal had been closed. After finding this out, I talked to the original owners of the property and they feel as I do that acts of this kind should not be condoned. I asked the salesman to pay over to the original owners any profits she may have made on the transaction, but this she refused to do. If you want further details as to this case or should you care to investigate further, I shall be pleased to forward such details and documents as you may request.”
“Gentlemen:
“I wish to cancel the application for the renewal of salesman’s license of Marilyn H. Cochrane, as I have this day discharged her for what I consider to be a direct violation of the rules and regulations of the Michigan corporation and securities commission. * * *
“This salesman has asked for the transfer of her license to another broker, and I have refused, as I will not take the responsibility for helping to allow a person who has committed snch acts as described above, from continuing in the real estate business.
“Very truly yours,
“Wittbold & Co.
/s/ Robert L. Wittbold”
The undisputed evidence, including plaintiff’s own testimony, shows the following regarding the transaction :
On March 19, 1955, a Mr. and Mrs. Dowling listed 6-1/2 acres on Grosse lie for sale with the Wittbold firm. Plaintiff, as a Wittbold saleswoman, presented an offer of $1,000 an acre from a Mr. and Mrs. Mitchell which the Dowlings accepted on April 16th. Mr. and Mrs. Mitchell were actually plaintiff’s father and mother who were buying the property for plaintiff. Plaintiff discussed the situation with Wittbold who told her that she could buy the property if she made full disclosure to the sellers.
On May 21, 1955, the transaction was closed. On the way to the closing, Mrs. Cochrane for the first time told Mrs. Dowling that the purchasers were relatives of hers. The closing statement included the language, “Seller has full knowledge that the salesman is related to the purchaser.”
Mrs. Cochrane could not remember at trial whether or not the Dowlings were told that her mother and father were purchasing the property. Mrs. Dowling testified that they were not told.
It appears that as of May 21st, when such disclosure as is shown by this record was made, 3 important facts were not revealed:
(1) The purchasers were not only related, but were in fact plaintiff’s mother and father;
(2) The purchase was being made by them for plaintiff;
(3) Plaintiff already had a binding agreement with a Mr. Anthony for her to sell him the property concerned at a price of $1,200 per acre.
As to these matters, plaintiff testified at cross-examination :
“Q. You purchased this property for your own account?
“A. No.
“Q. You did not?
“A. No. Indirectly yes, but actually no.
“Q. Indirectly you purchased it for your own account ?
“A. Yes. I mean I asked my parents to purchase it.
“Q. In other words, you knew of the entire deal beforehand? In other words, before May 21st, yon had this all set up, is that correct? That you were going to buy it and that you could make a profit and the commission on it?
“A. I had knowledge of it, yes.
“Q. Did you reveal to Mrs. Dowling that you were buying for your own account ?
“A. No.”
Within 2 days after the Dowling-Mitchell closing, the Mitchells assigned the land contract to plaintiff, and plaintiff in turn assigned it to Anthony.
The Dowlings were charged the regular commission on their sale, and plaintiff made an individual profit of $1,196 on the Anthony transaction.
Wittbold’s uncontradieted testimony is that he first knew all these facts as a result of checking into a report to him made 2 or 3 months later by another real-estate broker who had found the recording of the assignment to plaintiff.
Wittbold thereupon discussed the matter with plaintiff and with the Dowlings. He did not, however, discharge plaintiff until March of 1956 when plaintiff presented him with the application form for transfer to another real-estate broker.
As a result of the communication previously quoted, plaintiff’s license was suspended and a hear ing was held before a deputy commissioner on a charge of violation of Rule 6 of the rules and regulations of the Michigan corporation and securities commission:
“A broker shall not buy for himself either directly or indirectly property listed with him, nor shall he acquire any interest therein either directly or indirectly, without first making his true position clearly known to the listing owner.” Michigan Administrative Code, 1954, § R 451.306.
Wittbold, though notified, did not appear or testify, and the complaint was dismissed and plaintiff’s license restored.
Subsequently the instant suit for libel was started.
At trial, the judge instructed the jury that the only communications of the alleged libel proved were those to the corporation and securities commission. Plaintiff offered no request for instruction on this point and, when afforded an opportunity to object to the charge, specifically indicated no objection. The judge also instructed the jury that the communications to the corporation and securities commission were qualifiedly privileged and, hence, that both their falsity and defendants’ malice must be found antecedent to recovery. The charge as to qualified privilege accorded with defendants’ requests, and defendants’ counsel expressed satisfaction with the charge as a whole. Both parties, on appeal, now present objections to the charge, which we will not discuss or decide since they were not presented at trial below and are not necessary to decision here.
On the charge as given, we must, of course, read the jury verdict as finding that defendants’ communications to the corporation and securities commission were false and maliciously made.
• We do nót invade the fact-finding authority of the jury or remand for entry of judgment non obstante veredicto, as sought by defendants herein, unless the factual record is so clear that reasonable minds may not disagree. See Churukian v. LaGest, 357 Mich 173. This is, in our view, such a case.
We simply do not find any dispute as to the relevant facts. The factual allegations as to plaintiff’s conduct are these:
“Salesman proceeded to purchase the property, but instead of buying it in her own name, she had her parents buy it and she received a commission from the seller. Some time later it was pointed out to me that she had executed a conveyance as the owner of the property to a third party on the day that the deal had been closed.”
These allegations are uncontradicted, with the exception of the immaterial fact that the third party conveyance was made “within 2 days,” rather than “on the day the deal had been closed.”
The claim of falsity really is addressed to defendants’ stated conclusion that these acts represented a violation of the rules of the corporation and securities commission. As to this, the jury may well have been led, by the restoration of plaintiff’s license, to conclude that the decision of the deputy commissioner was a determination of the falsity of the violation charge, and that the determination was binding on them.
Whatever the proofs may have shown at the license hearing, we believe that the acts of plaintiff, which are established beyond dispute by this record, represent both a violation of the corporation and securities commission rule, and a violation of the public policy of this State.
Common law establishes the principle upon which Rule 6 is based, that an agent may not serve himself while purporting to serve and accepting a fee from his principal without the fullest and most complete disclosure to the principal. Moore v. Mandlebaum, 8 Mich 433; McKay v. Williams, 67 Mich 547 (11 Am St Rep 597); McNutt v. Dix, 83 Mich 328 (10 LRA 660); Beedle v. Crane, 91 Mich 429 (26 ALR2d 1307).
Justice Cardozo, while on the New York bench, put the matter this way:
“If dual interests are to be served, the disclosure to be effective must lay bare the truth, without ambiguity or reservation, in all its stark significance (Dunne v. English, LR 18 Eq 524 [31 LT 75]; Imperial Mercantile Credit Assn. v. Coleman, LR 6 HL 189).” Wendt v. Fischer, 243 NY 439, 443 (154 NE 303, 304).
There are in this record facts to support a finding of malice on the part of defendants. The jury finding on this point may have rested on the unexplained delay in defendants’ indignation about this deal and the coincidence of their complaints and plaintiff’s statement of intention to leave their employment.
Nonetheless, the damaging statements contained in the publications were true when compared to plaintiff’s own testimony.
Recovery in a libel action cannot be predicated upon defamatory charges which are proven to be true. Sullings v. Shakespeare, 46 Mich 408 (41 Am Rep 166); Hysko v. Polonia Publishing Co., 239 Mich 676; Noth v. Evening News Association, 338 Mich 359.
The motion for verdict non obstante should have been granted.
Reversed. Costs to appellants.
Dethmers, C. J., and Carr, Kelly, Smith, Black, Kavanagh, and Souris, JJ., concurred.
The determination of the existence of a privilege is normally a question for the court. See discussion in Lawrence v. Fox, 357 Mich 134, 139. | [
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Smith, J.
This case concerns the proper forum for consideration of an appeal from the appeal board of the Michigan employment security commission.
The facts are not in dispute. The plaintiff, a resident of Macomb county, Michigan, was employed by the defendant Curtiss-Wright Corporation in its Utica Bend division, in Macomb county. Dissatisfied with a determination of the appeal board of the employment security commission, he filed a petition for writ of certiorari in the Wayne circuit court. The writ was issued and noticed for hearing. Defendant thereupon appeared specially and moved to dismiss for lack of jurisdiction in the Wayne circuit. Plaintiff conceded that he resided in Macomb county and countered with a motion for change of venue to such county. This motion was granted, the motion to dismiss denied, and defendant is before us upon leave granted. ^
The controlling statute provides as follows:
“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 case, 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 mailing 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.”
The “power to review” thus granted is the power to hear and determine. It is language of jurisdiction. The right of appeal granted,- we note, is purely statutory, and in so saying we are not unaware of our constitutional authority to issue original and remedial writs. But here the legislature has provided for a limited judicial review, to obtain which a specified procedure in specified courts must be followed. The benefits in question do not accrue in the course of the common law but have their “roots in legislative enactments,” which enactments prescribe both the nature of the benefits and the remedies to be pursued in their effectuation. Jurisdiction for the limited judicial review available is vested exclusively with designated circuit courts.
With much of what appellee asserts, and what the trial court held, respecting venue, and change of venue, we are in accord. Venue is primarily a matter of convenience. Properly construed, and without reference to specific statutory enactments, it “has nothing whatsoever to do with jurisdiction— instead it is concerned only with the place of trial of an action within the State.” But here we have express statutory provisions regulating the appeal, namely, the procedure, the scope of review, and the courts empowered to hear the same. The general provisions of the statute and rules relating to venue and jurisdiction thus have no application to this particular situation.
The disposition of causes of action upon narrow procedural grounds without a hearing on the merits thereof does not commend itself to any modern system of jurisprudence, hut as the statute is drafted it is clear, unambiguous, and presents no alternative. We have observed, in our research upon the matter, that certain States have passed curative acts to prevent the result here necessarily reached. Thus we find in article 8307a of the Texas revised civil statutes, a requirement, with respect to workmen’s compensation, that an action to set aside the ruling of the industrial accident board shall be brought “in the county where the injury occurred.” But it then goes on to provide that:
“In the event such suit is brought in any county other than the county where the injury occurred, the court in which the same is filed shall, upon ascertaining that it does not have jurisdiction to render judgment upon the merits, transfer the case to the proper court in the county where the injury occurred.”
Prior to the effective date of article 8307a, it had been held that where an action had been filed in the wrong county the court was without jurisdiction of the subject matter and could only dismiss.
The orders appealed from are reversed and the case remanded to the circuit court for entry of orders consistent herewith. No costs, a question of statutory construction.
Dethmers, C. J., and Carr, Kelly, Edwards, Kavanagh, and Souris, JJ., concurred with Smith, J.
CLS 1956, § 421.38 (Stat Aim 1959 Gum Supp § 17.540).
Langdon v. Judges of the Wayne Circuit Court, 76 Mich 358.
Scott v. Nevada Employment Security Department, 70 Nev 555, 551 (278 P2d 602, 603).
Mooney v. Unemployment Compensation Commission, 336 Mich 344.
Joint Committee on Michigan Procedural Revision, Pinal Report (1960), part 2, Proposed Statutes and Comments, p 89.
Federal Underwriters Exchange v. Pugh, 141 Tex 539, 542 (174 SW2d 598). | [
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Long, J.
The defendant gave an order to the plaintiff for a windmill, at the price of $125. The order was in writing, signed by the defendant, and delivered to the plaintiff’s agent at Millington, this State, and by the agent forwarded to the plaintiff at Batavia, 111. The order was dated May 16, 1890, and contained the following clause:
“This order is not subject to countermand. No verbal understanding with agents to affect this order, all conditions under which same is given being specified herein. All orders subject to the approval of Challenge Wind & Feed Mill Company.”
This order was forwarded to the plaintiff, and the word ^Accepted” written upon it, together with the words, “ Will ship to-day, May 38, 1890,” and signed by the company. About a week after the order was given defendant notified the company that he would not accept the mill. The mill was subsequently shipped to Millington, this State. Defendant refused to receive it, and so notified the plaintiff, and returned the mill to the company. The mill was reshipped to Yassar by the plaintiff, and subsequently an arrangement was made between the defendant and plaintiff's agent, by which the mill was to be erected upon defendant's premises under a verbal warranty made by the agent.
This suit was brought to recover the value of the mill. On the trial plaintiff had judgment for the value.
The defense was that the mill did not comply with the warranty made by the agent at the time defendant agreed to take it. Defendant's proofs tended strongly to show that the mill did not comply with the warranty, and that, though the plaintiff’s agent attempted npon several occasions to make it do the work intended, he was unsuccessful. The court below, however, was of the opinion that it was immaterial whether or not the agent made the warranty, for the reason that, under the written contract first made, the agent had no authority, to make a contract which would bind the plaintiff, and of which the defendant had notice, and so charged the jury.
This was error. The written order given by the defendant to the agent, and forwarded to the plaintiff, was countermanded before acceptance by the plaintiff, and before the plaintiff had taken any steps whatever towards filling the order. The defendant had a right during that time to countermand it. The order was one which the plaintiff could accept or not, as it pleased. This right was expressly reserved in the order, and until acceptance the contract was unilateral. Wilcox v. Cline, 70 Mich. 517. Up to tbe time of acceptance, or up to tbe time tbe plaintiff had signified its intention to accept, it was not bound by the order; and during this time the defendant had the right to countermand, as no period was fixed within which the plaintiff might accept defendant’s terms. This contract, therefore, was not binding between the parties, and defendant was under no obligation to accept the mill upon its arrival at Millington, and plaintiff shipped it at its own risk of having the mill received by the defendant. The defendant refused absolutely to receive it, and it was reshipped. No other written order was made, and the plaintiff sent the mill to its agent at Vassar. Whatever arrangement was thereafter made by its agent with the defendant would be binding upon the plaintiff. What these arrangments and representations made by thn agent were, and whether they were fulfilled, were questions of fact for the jury. The defendant had a right to have his case submitted to the jury upon his theory, and, if the mill did not fulfill the warranty, defendant would be under no obligation to keep and pay for it.
The judgment below is set aside, with costs, and a new trial ordered.
The other Justices concurred. | [
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] |
Per Curiam.
The facts in these cases are the same as those in the case of Pierce v. Johnson, ante, 125.
The judgments must be reversed, and judgment entered here quashing the proceedings. | [
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Morse, C. J.
February 13, 1888, the president and board of trustees of the village (now city) of Gladstone undertook to pave Delta avenue, in said village. May 21, 1888, the Contract was awarded to one D. J. Kennedy, who immediately commenced the work, and subsequently finished such paving. Certain orders were issued to him in payment of this work, but the return of the respondent alleges that they were issued without proper authority. Taxes were levied to meet these orders. The lands of the relator, with other real estate, were assessed, and taxes levied upon them to pay for this work.
The relator joined with others in a suit in chancery, in the circuit court for the county of Delta, to set aside such tax levies, upon the ground that the paving had been done without jurisdiction, alleging various jurisdictional defects in the proceedings. The court decreed that the tax was null and void, and a cloud upon relator’s title, and perpetually enjoined the village of Gladstone from collecting or endeavoring to collect such tax.
The relator claims to hold one of these orders, issued to Kennedy, and has demanded payment of the same, which payment has been refused by the respondent. Delator prays for a mandamus commanding the respondent to pay said order, or to provide means for its payment by reassessment, or for “such other or further order as justice may require.”
It is admitted that the work done by Kennedy was accepted by the respondent; also that there has been collected, of taxes levied on account of said paving, and ig now in the hands of the treasurer of said respondent, the sum of 16,069. Questions of fact are raised by the replication to respondent’s return, and relator asks that such issues be sent down to be tried by a jury in the Delta circuit.
Delator claims that he has no other remedy than by mandamus; that the order was received by his firm (Davis & Mason) for materials furnished Kennedy in the paving work; and that a portion of the money now in the hands of the treasurer, as the Delta-avenue paving fund, was received on the sales of land for these taxes, which the purchaser at the tax sale cannot recover back from the village; and that, in equity and justice, the relator is entitled to such money to pay, or to be applied upon, his order, standing, as he does, in the shoes of Kennedy.
We do not care to enter into a discussion of the law points involved in this controversy. The writ of mandamus is not one of right. The relator saw fit to institute the proceedings which resulted in the determination of a proper court that the village of Gladstone had no right to levy any taxes to pay for the paving work done by Kennedy, under the proceedings taken to pave Delta avenue. He took measures to escape the payment of his share of this expense, and now comes here asking that the money received from other tax-payers illegally, or derived from illegal tax sales, shall be applied to pay his order. There is no equity or justice in this demand; nor do we think it proper to determine, in this proceeding, whether the respondent should order a new assessment and tax levy to pay this order.
The writ will be denied, with costs.
The other Justices concurred. | [
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Durand, J.
This case comes up on an appeal from a •final order denying leave to file a bill of review, and only the facts relating to the points raised by the record will be stated.
The bill of complaint was filed February 9, 1889, in the •circuit court for the county of Gogebic, in chancery, by the complainant, to foreclose a mortgage purporting to have been made on March 19, 1888, by the defendants John Stockley and Emma Stockley, his wife, to secure to the •complainant the payment of 40 notes of $100 each, and payable in monthly payments after that date. The other defendants were made parties as subsequent incumbrancers. On May 15, 1889, the defendants John and Emma Stockley caused their answer to be filed through one James Freeman, as their solicitor, in which, among other things, they •claimed that the notes and mortgage were obtained without consideration, as well as by false representations on the part of the complainant. The other defendants were defaulted, and an order pro confesso entered as to them. After filing a' replication, and on July 5, 1889, the usual order for taking testimony in 60 days was filed and served. August 20, 1889, notice of taking testimony of certain witnesses for complainant was served on the contesting defendants as well as upon their solicitor, and on the day set complainant’s proof was taken. The 60 days limited for producing witnesses expired, and, although repeatedly urged, no steps were taken by the defendants or their solicitor to produce or examine any witnesses in their behalf, or to give any attention to the order which had been entered in reference thereto; and finally, on January 9, 1890, an order was entered closing the proofs. The usual notice was served, and the cause brought on for hearing in the regular way before Judge Daboll, presiding judge, and on January 27, 1890, a decree of foreclosure in the usual form was duly entered and signed.
After this decree was made, the contesting defendants secured the assistance of M. M. Riley, an attorney at law, to assist their solicitor, Freeman, and his name was entered as solicitor in the cause for them. On the defendants’ petition, Judge Daboll, on February 7, 1890, made an order that all further proceedings under the decree be stayed until the first day of the next term of court, at which time, to wit, May 12, 1890, an order was made by Judge Daboll, vacating and setting aside the decree and the order closing the proofs, and extending the time in which proofs might be taken, but, as expressed in said order, that same must be closed “twenty days before the first day of the next term of this court, to be holden on the first Monday of August next.” The defendants did not comply with this order; neither did they take any proofs; and on July 23, 1890, after the expiration of the time limited, complainant entered a second order in the case closing the proofs, and served notice of the same, and again brought the case on for hearing, and on August 4, 1890, a second decree of foreclosure was entered in the cause, substantially the same as the first.
After this last decree was entered, the defendants employed O. F. Button as solicitor, who, on August 16, 1890, filed a petition asking that a stay of proceedings might be granted until the first . day of the next term of court, to allow the defendants to appeal to the court for a rehearing. The court granted the motion. At the next term of court, and on December 17, 1890, the petition to set aside the decree and for relief was brought on to be heard, and, after due consideration, the same was denied by Judge Williams. The defendants then claimed the right to make a new petition, and applied to the court for a further stay of proceedings, to enable them to renew their application, which was also denied, and on January 9, 1891, the decree referred to was duly and properly enrolled.
On January 10, 1891, notice was given for a sale on March 4, 1891, of the property described in the decree by a circuit court commissioner, and on February 28 — a few days before the proposed sale — the defendants made, and the circuit court commissioner granted, an application of said defendants, which was based upon the petition and affidavits filed in the cause, staying said sale until the first, day of the next succeeding May term of said court, in order to give them the right again to move to get the decree and the order closing proofs set aside. On March' 3, 1891, the matter was brought to the attention of tho circuit judge, who promptly set aside the order of the circuit court commissioner, and ordered the sale to proceed on March 4, 1891, according to the terms of the published notice of sale. The sale was according^ made on March 4, 1891, and the property was sold. On March 13, 1891, the defendants filed exceptions to the sale made by the circuit court commissioner, and on July 1, 1891, the circuit judge made an order overruling the exceptions and confirming the sale so made. A decree was also entered against the defendant John Stockley, who had been adjudged personally liable for the deficiency which remained unpaid upon the decree after the sale of the mortgaged premises.
Many things contained in the record need not be discussed here, as they are not necessary to the determination of the question presented, which is whether the circuit judge erred in denying leave to file a bill of review in this case. As is seen by the facts stated, extraordinary means were resorted to by the defendants during the progress of the case to invoke the clemency of the court in their behalf, and to excuse them from the results which had been brought about through their own neglect. Wé fail to discover wherein they were denied either a fair hearing or generous treatment from either of the learned circuit judges to whom they appealed during the progress of the litigation; and it is not too much to say that the defendants, by the filing and urging of repeated petitions and motions, succeeded in producing much, if not very unusual, delay.
While the defendants contend that their solicitors are entirely responsible for the neglect, which they charge as the cause for not bringing in the witnesses to prove their defense, we are compelled to say that the record does not sustain them on that point. At least one of their solicitors gave them information which should have prompted them to act, and, in addition, complainant's solicitor caused them to be personally notified of some of the proceedings, so as to put them upon their guard against the consequences of neglect. The mere employment of counsel is not always sufficient to excuse parties for repeated and flagrant acts of neglect. The diligence and prudence required of ordinarily prudent litigants requires something-more than this, especially when they are given informa tion which would put an ordinarily prudent person upon his guard. This doctrine is well settled, and is clearly recognized in Loree v. Reeves, 2 Mich. 133, referred to in defendants' brief.
An application for leave to file a bill of review is the method employed to obtain a rehearing and to vacate a decree after its enrollment; but the results to be attained, and the facts properly to be considered, are the same as though it were a motion for a new trial, or a motion for a rehearing and to vacate a decree before its enrollment, and in like manner it addresses itself to the fair discretion of a court. In passing upon it, each case stands by itself, and is controlled by the circumstances surrounding it, and without reference to any other case. The power of the court in granting or denying it is largely discretionary, and is always to be exercised in vieAv of the peculiar circumstances of each casé, so as to effectuate substantial justice, and protect the legal and equitable rights of the parties.- Unless this principle has been violated by the circuit judge through an abuse of the fair discretionary power with Avhich he is invested, his decision should not be disturbed. In this case we do not think he is chargeable with this fault. The parties Avere before him, as well as their solicitors, and Ave think the record fully sustains him in the decision he made.
The order of the circuit judge denying the petition for leave to file a bill of review in this case is affirmed, with costs.
The other Justices concurred. | [
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Long, J.
The plaintiff brought an action of assumpsit in the circuit court for Ogemaw county.
In a special count of the declaration it is alleged that since the 1st day of January, 1885, the different treas urers of said county, in pursuance of the provisions of the statute, have received sums of money belonging to the plaintiff, which the said county now refuses to pay; that such moneys arose from delinquent taxes returned to the county, and by the county treasurers returned to the Aiiditor General, and that such moneys were paid upon such delinquent taxes by the Auditor General and individuals to the county treasurers, and were the moneys of the township; but that the several county treasurers since 1885 have unlawfully paid out said moneys to others than the plaintiff's treasurers.
This declaration was demurred to upon the grounds—
1. That the amount is liquidated.
2. That the plaintiff's remedy is by mandamus.
3. That the statutes providing for the assessment of property, and the levy and collection of taxes thereon, referred to in the special count, do not purport to give any right of action in a suit at law by a township against a county for the default of a county treasurer in paying over delinquent taxes’ collected by him, and belonging to said township.
The court below sustained the demurrer, and gave judgment for the defendant.
Plaintiff brings error.
3 How. Stat. § 1170/il, provides that the accounts between the State and county and each township shall be adjusted on the basis of crediting and paying to each the taxes collected for each, with interest thereon; and the Auditor General is required by this section, on the 1st days of January, April, July, and October in each year, to make a statement of the account between the State and county, and render the same to the county treasurer, drawing his warrant on the State Treasurer in favor of the county treasurer for all moneys collected for county, township, school, and highway purposes for the several townships, and transmitting the same to the county treasurer. The county treasurer is also required to make a statement of the accounts between the county and each of the townships, and render the same to the township treasurers of the proper townships, and to pay over to the township treasurers the amount of moneys belonging to them.
By section 1170A5, it is provided that all losses by default of any county officer shall be chargeable to such county.
It is evident, under the declaration, that the amount for which the suit is commenced is not liquidated and ascertained, so that the Court by mandamus could compel its payment over to the township. The account between the county and the township does not appear to have been stated, and no settlement is claimed to have been made showing the state of the account between the county and township. There may be charges both ways, and, until the amount is fixed and determined by the judgment of the court, no order could be awarded compelling its payment. It is to ascertain the true amount of the indebtedness that this action is brought. We think the action properly brought.
The judgment of the court below, sustaining the demurrer, must be reversed, with costs. The case will be remanded to the court below, where defendant will have 20 days after remittitur is there filed to plead issuably.
The other Justices concurred. | [
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Grant, J.
Defendant was register of deeds for the county of Wayne, and Emanuel Fox was a clerk under him. Eox was paid by the county of Wayne a salary of $1,000 per year. His working hours were from 8:30 A. M. to 4 p. m. Act No. 262, Laws of 1887, made it the duty of the register of deeds of each county to notify the supervisors and assessing officers of the various counties of the existence of mortgages recorded but undischarged. For every such notice the register was to receive 10 cents. In accordance with this act, defendant caused notices to be given of the mortgages in the county of Wayne. Defendant received pay for this service. Roulo v. Board of Auditors, 74 Mich. 129. These notices were in fact made by Mr. Fox. Plaintiff introduced evidence tending to show that Mr. Fox, at defendant’s request, performed this service, and that he promised to pay him extra compensation therefor. The case was first tried in justice’s court. Mr. Fox died befóre the trial in the circuit court.
1. Plaintiff was entitled to have his case submitted to the jury upon the theory that defendant agreed to pay Mr. Fox a definite sum for such services. He was also entitled to an instruction to the jury that, if he failed to establish’ a contract for a specific sum, still he was entitled to recover upon a quantum meruit, provided he established the fact that defendant employed Mr. Fox to do the work out of office hours.
2. The court rejected evidence of what Mr. Fox testified to in regard to the transaction in the justice’s court. This was error. Such testimony is competent. 1 Greenl. Ev. § 163; Howard v. Patrick, 38 Mich. 795; Stewart v. Bank, 43 Id. 257; Labar v. Crane, 56 Id. 585; Dunbar v. McGill, 69 Id. 297.
3. One James A. Visger, who was also a clerk in the office, testified that Fox was unsteady in his regular work during office hours, and was permitted to testify that he made complaint to defendant. This testimony was incompetent. The conduct of Mr. Fox in the regular work upon which he was-employed was disconnected with this special service, and had no bearing upon the contract here involved.
It is unnecessary to discuss the other questions raised.
Judgment reversed, and a new trial ordered.
The other Justices concurred. | [
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Durand, J.
This action was brought to recover money-paid, under protest, to the city of Jackson for an auctioneer's license. The case was tried before the court without, a jury, who rendered judgment for the defendant.
No request for findings either of law or fact was made, as required by Circuit Court Eule No. 87, nor did the judge make any such findings. This Court, therefore, has nothing to review, as has been repeatedly held, and this case will be governed by Haines v. Saviers, ante, 440.
The judgment will be affirmed, with costs of this Court.
The other Justices concurred. | [
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Grant, J.
The respondent was convicted of having uttered a false, forged promissory note. He waived examination before the justice. The objections raised to the information and conviction are these:
1. The information does not follow the warrant, in that the warrant charges the offense to have been committed November 18, 1890, while the information charges it as November 18, 1889; also that the note is described in the warrant as signed by “L. D. Foote & Co.,” while in the information it is described as signed by “L. D. Foote.”
2. The court erroneously permitted one Newnham, an attorney, to assist the prosecution upon the trial.
3. The court erroneously permitted the people to show upon the cross-examination of the respondent that he had been ai-rested for another crime.
4. The court erred in not delaying the trial to permit respondent to secure the attendance of two witnesses.
I think none of the objections are tenable. The complaint, which, of course, forms the basis for the warrant, alleged the offense to have been committed November 18, 1889, and gave a copy of the note, which bore the same date, and was signed, “L. D. Foote.” The warrant gave the date as November 18, 1890, and also gave a copy of the note, bearing the same date as in the complaint, with the signature thereto, "L. D. Foote & Co.” The complaint was sworn to May 23, 1890. The date November 18, 1890, was therefore an impossible one, and a clerical! error. The same discrepancies that now appear in the warrant and information appeared also in the complaint and! warrant, to which respondent made no objection. The objection is purely technical, and the discrepancies could not have operated to his prejudice.
When objection was made to Mr. Newnham’s taking part in the trial, the court investigated the matter, and it appeared that he was not employed by any private party, that he had no interest in the matter, that he was associated in business with the prosecuting officer, and had attended the prosecution on behalf of the people in the justice’s court. It was therefore discretionary with the court to permit his employment. Ulrich v. People, 39 Mich. 245; Sneed v. People, 38 Id. 248; People v. Bemis, 51 Id. 422.
The third objection is ruled by the following cases: Wilbur v. Flood, 16 Mich. 40; Clemens v. Conrad, 19 Id. 170. In the latter case the question, “Were you indicted in 1865 in Sandusky for smuggling?” was held competent. Foote was a witness in his own behalf, and the inquiry was competent, as bearing upon the credibility of the witness. The reason for such inquiry is very clearly stated in Wilbur v. Flood.
It was entirely within the discretion of the court to refuse a delay for the purpose of procuring witnesses, and we see no abuse of that discretion. When the request was made, the circuit judge and counsel for the people and the respondent retired to an adjoining room to see if they could arrange some disposition of the matter. What took place there does not appear upon this record. We have not, therefore, all the facts before us. The judge was possessed of all the facts, and was in a far better position than are we to judge of the propriety of a delay.
Conviction is affirmed.
.The other Justices concurred. | [
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] |
Durand, J.
The bill in this case is filed for the purpose of settling the ownership of the ice forming from time to time on a body of water known as the'“Prairie Creek Pond."
On April 25, 1855, John P. Place and Laura Place, his wife, executed and delivered to John C. Dexter a warranty deed in the usual form, conveying to him certain property mentioned in the deed, and described as:
“ The following described parcels of land in Ionia county, Michigan, on section 21, in township 7 north, of range 6 west, described as follows, to wit: Being all the land lying south of the center of the highway leading through said section 21 from Ionia county-seat to Lyons, and north of the north line of Detroit & Milwaukee Railroad, which belongs to the said parties of the first part, west of a point on said center of said highway 35 rods east of the center of Prairie creek, where the said highway crosses the same, embracing in tbe above tbe mill yard and location of tbe saw-mill lately burned; also the right of building and maintaining a dam across Prairie creek on the said highway, or at any point or place north of same, sufficiently high to flow the lands of the said parties of the first part on said section 21, and on the south half of the south-west quarter, and the west half of the south-west quarter of the south-east quarter, of section 16, in said town, back to the north line of the last-described pieces, together with the right to flow said lands north of and on said highway; also-embracing in the above rights all of the present mill race, together with the east bank of said race; also the right of! making and maintaining a mill race on the east side of the said creek, and north of the center of the highway, at any suitable point, together with the right of taking earth from the hill on the east side of the creek, and north of the center of the highway, so much of and as often as the same may be necessary to make, maintain, and repair said dam or mill race; also the right of entering upon the lands adjoining said dam and race whenever it may be necessary to repair the same; also the right of keeping and floating-logs in said pond or race; also the right of cutting the timber in and clearing out the timber and logs in the pond; also the right of making and maintaining a race across the south half of the south-west quarter of section 16, in said town, along the high bank or hills on the west side of said creek, at any height, and thence in a straight line to the highway, near where the said highway crosses the west line of said section 21, together with the right of entering upon lands adjoining said race only so much and so often as may be necessary to repair said race. The said party of the second part, and his heirs and assigns, is to make and maintain suitable bridges across the said race where necessary for crossing. Together with all and singular the hereditaments and appurtenances thereunto belonging, or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits, thereof; and all the estate, right, title, interest, claim, or demand whatsoever of the said parties of the first part, either in law or equity, of, in, and to the above-bargained premises.”
Afterwards, through various conveyances to and from different persons, the title finally passed into the complainants, the same as that conveyed by the Dexter deed, and they have succeeded to all the rights granted to him under such deed. The defendants are heirs of John P. and Laura Place, and they have succeeded to all the rights formerly held by them, and which they had not disposed of or lost through their acts or omission to act in reference to the subject now in controversy.
In 1863 the owners of the Dexter title built a flouring-mill and erected a dam, which set back the water of Prairie creek, and overflowed the land mentioned in the deed, and thereby created the pond of water known as the “Prairie Creek Pond,” and Avhich is situated near the city of Ionia. At the time of the giving of the Dexter •deed, Ionia was a small place, but in 1869 it had grown into a town of considerable size and importance; and during the winter of 1869 and 1870 one Norman S. Goodrich, under a lease from the then owners of the Dexter title, proceeded to put the pond in condition for the ice business, and begun to cut and harvest ice for sale to his customers in Ionia. This he continued to do during those years, and also during the winter of 1871. On January 30, 1872, in consideration of the sum of $480 by him paid, he obtained from the owners of the Dexter title a lease for the period of 10 years of all — ■
“ The territory known as the c Prairie Creek Mill PondJ * * * for the express purpose and benefits of the ice which shall or may accumulate thereon during the term of this lease, together with all and singular the benefits, liberties, and privileges to the said premises for such purposes belonging.”
This lease was duly witnessed and acknowledged, and recorded in the office of the register of deeds for Ionia county. Under this lease, Goodrich proceeded to build ice-houses adjoining the pond upon land which he leased of Mrs. Laura Place for that purpose. He improved the pond by taking out stumps and trees, and cutting down the brush, so as to make a clear field for the ice to form upon, and constructed a road to enable him to draw the ice, when cut, from the pond to the city. During all this . time Mrs. Place occupied the farm and lived in sight of the pond, knew all that was being done, and her sons and hired man were employed by Goodrich at different times to assist him in conducting his ice business. Goodrich continued to operate the ice business under this lease for about eight years, when, finding he could not get an extension of it when it should expire, he sold out the business, including the balance of the term of the lease, to Isaac P. and Anson Iioag, for $1,450. Before buying out Goodrich, they obtained a promise from ~W. D. Place, one of the defendants, who it appears was at that time managing the business for his mother, that if they bought out Goodrich they could obtain the title of the land upon which the ice-houses stood. The purchase was thereupon consummated, and the ice business was continued as before, Mrs. Place receiving $10 per year as rent for the ice-house property for the remaining two years of the lease, and at that time she executed a deed of the same according to the evident understanding of all the parties, for a consideration of $300. The land conveyed was about one acre in amount, situated upon the bank of the pond, and the price received by her for it was evidently many times its actual value, and the large price paid for it was clearly because its value was enhanced by reason of the ice business, and for which use it was intended. The ice business, as established, was continued thereafter, and without objection from any one, until near the time when the bill was filed in this case. The property acquired, as stated, for ice-house purposes, through different conveyances, also became vested in the complainants, including the rights conveyed to Isaac P. and Anson Hoag by Goodrich.
There has never been any concealment on the part of •complainants, or on the part of any one from whom they have derived title, of the claim which they made and still make to the ice. Their occupation and use of the pond for that purpose has been open and notorious. The lease to Goodrich, as well as the conveyances in the chain of the Dexter title, under which the complainants claim, have been recorded from time to time in the office of the register of deeds for Ionia county; and, in addition, Laura Place, and at least some of her heirs, and who are defendants in this suit, were fully advised of all that was being done from time to time, as well as of the claim made by the owners of the Dexter title, and not only made no objection to it, but by leasing and selling property to be used in connection with the business as then established and being carried on, as well as by buying ice from and engaging in the employment of those who were conducting the business, acquiesced in the claim made by them to the exclusive ownership and use of the ice forming from time to time on the pond. Some of the conveyances were made with special reference to the value of the ice business, and the bill alleges that when complainant Mansfield purchased his one-half interest in the ice-house property and business, paying $2,000 therefor, he did so with the honest belief and understanding that he thereby became the owner of the undivided one-half of all the ice which would form from year to year on the pond, as well as of one-half the ice business which had been established in connection'therewith.
The bill also alleges that the defendants, as heirs of Laura-, Place, claim that, because they are the owners of the fee of the-land covered by the waters of the pond, they are the owners-, of the ice forming from year to year upon its surface, and the-court is asked for a decree settling the rights of the parties as: to the ownership of the ice, and to restrain the defendants from laying claim to or interfering with it. The answer generally denies that the complainants, either through the Dexter chain of title or by long-continued use of the property in the manner stated, have any right or title to the ice, and denies that, under all the circumstances of this case, defendants are estopped from claiming that they, as the owners of the fee, are entitled to it.
It may be considered as settled law in this State that the owner of the soil under the water is ordinarily the sole and exclusive owner of the ice forming upon such water, and that his riparian ownership of the bed of a stream will carry with it the right to the ice forming upon the surface of such stream as far as his riparian right to the soil extends. This doctrine is fully established in Lorman v. Benson, 8 Mich. 18; People’s Ice Co. v. Excelsior, 44 Id. 229; Clute v. Fisher, 65 Id. 48; Bigelow v. Shaw, Id. 341. We reaffirm the principle established by these cases, and this controversy could be easily disposed of if there were no other questions to be considered except the abstract proposition urged by the defendants,- — that they, as owners of the land covered by the waters of the pond, are entitled to the ice forming upon its surface. But there are other and more serious contentions in reference to the extent of the grant in the Dexter deed, and the construction to be placed upon it, and also in reference to the prescriptive and other rights acquired by the complainants in the subject-matter of this suit, in consequence of the acquiescence of the defendants, and of those through whom they obtain title, in the claim which complainants have made for many years, and are now making, as to the ownership of the ice in question. These become important questions, which must be given fair consideration in the determination of the rights of the respective parties to this litigation.
Under our view of this case, as it appears to us in the light of all the facts and circumstances surrounding it, we are not called upon to construe the Dexter deed, or to decide upon the extent of the right conveyed by it. The parties have fhemselves construed it, and, except when there has been mistake or fraud or concealment of important facts, courts should not give a construction to a deed in direct conflict with that which the parties have themselves put upon it, especially after such construction has been in force and assented to by all the parties for a period of time long enough to create prescriptive rights and equities under the statutory limitations of the State. And this is so even when the terms employed in the deed are doubtful. When a water easement is granted in general or indefinite terms, rendering the construction doubtful, contemporaneous acts of the parties, giving a practical construction /to the grant, will be deemed to express their intention. Gould, Waters, § 318a, and cases cited; Mudge v. Salisbury, 110 N. Y. 413, 417 (18 N. E. Rep. 249). Where the uniform and continued acts of the parties for many years have placed a construction upon a contract or deed of conveyance, the court will give effect to the contract or deed as the parties themselves have construed it. Johnson v. Gibson, 78 Ind. 282; Reissner v. Oxley, 80 Id. 580; Lyles v. Lescher, 108 Id. 382 (9 N. E. Rep. 365); Kingsland v. Mayor, 45 Hun, 198. The same general doctrine is laid down in Fitzsimons v. Foley, 80 Mich. 518.
Applying this principle to the facts of this case, it is clear that the right to the ice forming on this pond from year to year is in the complainants. The evidence shows conclusively that, ever since the ice in question has been of any value, the owners of the Dexter title have always claimed the ice forming upon the pond, and have exercised the right to cut it and dispose of it as their own. They have done so openly and without opposition from any one. They exercised and enjoyed this right uninterruptedly for more than 15 years before the death of Laura Place, with her full knowledge and consent, and she rented and sold some of her own land at a large price, to furnish them with better facilities to carry on the ice business. Acting upon her open acquiescence in the claim which complainants make to the ownership of the ice, a large amount of money was invested in the business. Sales and transfers of portions of the ice business and property were made from time to time with the fullest acquiescence on the part of Laura Place in the fact that the owners of the Dexter title were the owners of the ice forming on the pond, and no objection was at any time made by her to this claim. She would certainly be estopped from denyhig complainants’ right, and her heirs have no more rights than she owned at the time of her death, and cannot be heard to assert a claim which she, if alive, could not, assert.
In giving .the construction to the deed which the parties gave to it, and for a period exceeding 15 years, the complainants have acquired a prescriptive right to the ice in question. A grant to them is implied, for, in order to establish a right or easement in the lands or waters of another, it is only necessary that the enjoyment be adverse and under a claim of right, and with the knowledge of the owner. That it be contrary to the interests of the owner, and of such a nature that it is difficult to account for it except on the presumption of á grant from him; and that it has continued in that manner for the period of limitation fixed by the statute; and the knowledge of the exercise of this right in the manner stated is binding, not only on the owner, but his, grantee as well. The adverse and uninterrupted use and enjoyment of an easement of this character, in the manner stated, for more than 15 years under a claim of right,, and with the knowledge of the owner, is strong ground on which to found the presumption of a grant, and, when unexplained, it is presumed to be under a claim of right, and Vdverse, and is sufficient to establish a title by prescription. Gould, Waters, §§ 334, 335, 341, and cases cited.
We cannot agree with defendants5 contention that complainants have, if at all, only acquired prescriptive rights in the ice forming on such parts of the pond as they have actually cut upon! It has never been treated in that way. They, and those from whom they derive title, have claimed the right as extending over the entire pond, and they have cut and gathered ice at any point or points they chose without objection from any one. This claim, too, has been made under color of title. The Dexter deed gave the right 'to the fiowage which creates the pond, and, whether or not the deed conferred the right now contended for, yet it would be idle to say in this case that it was not even a color of title, when it is clear that the parties themselves agreed that it was not only a color of title, but an actual title, and when able and learned lawyers, after much thought and attention, honestly disagree as to whether or not it actually conveys the right claimed for it by complainants. It is sufficient to say that the court must treat it as the parties themselves did, and as relating to the entire pond, and not to any parts or portions of it.
It follows that the decree of the court below, dividing the ice upon different parts of the pond between the respective parties, must be reversed, and a decree will be entered here in accordance with this opinion, settling the ownership of the ice in the complainants, and restraining the defendants from interfering therewith, as prayed for in the bill. Complainants will recover the costs of both courts.
The other Justices concurred. | [
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PER CURIAM.
Defendants appeal by leave granted the trial court’s order granting plaintiffs motion to strike defendants’ affidavit of meritorious defense and entering a default against them. Defendants also challenge the court’s denial of their motion to strike plaintiffs notice of intent and affidavit of merit. We reverse both orders.
Defendant University Neurosurgical Associates, EC. (UNA), employed defendant Setti Rengachary, a neurosurgeon. Plaintiff visited Rengachary complaining of pain in her neck and along her right side. Plaintiff had undergone fusion surgery in her neck before, and Rengachary suggested an operation with a posterior approach that would remove excess bone and disk tissue on the left side of her cervical vertebrae. Plaintiff consented and was admitted to the hospital on Novem ber 30, 1999. However, before the surgery, Rengachary learned that plaintiff complained of bilateral pain, which he determined would not be cured by the mere removal of tissue on the left side, but mandated fusion of the vertebrae above and below the previous fusion. This required an anterior approach. Rengachary met with plaintiff in the preoperation area and gave her a consent form explaining some aspects of the procedure, such as the approach and the use of cadaver bone grafts. Plaintiff signed the consent form. During the operation, Rengachary perforated plaintiffs esophagus, and complications arose, including intubation and subsequent infection. According to her notice of intent to sue, plaintiff was not released from the hospital until January 14, 2000, and was readmitted a few days later for another week-long hospital stay.
Plaintiff sent her notice of intent to sue on November 16, 2001. In relevant part, the notice states:
1. FACTUAL BASTS FOR CLAIM
On or about November 30, 1999, Plaintiff Cynthia Gawlik... was admitted to the Detroit Medical Center, Harper Hospital, under the care of Paul Ragatzki, M.D. On December 1, 1999, she underwent emergent anterior cervical dysectomy and fusion (ACDF) by Dr. Setti Rengachary resulting in a series of complications which are the subject of this NOI, including esophageal perforation (which was not repaired in a timely fashion) resulting in abscess, osteomyelitis and mediastinitis and aspiration pneumonia. The medical records from the DMC, Harper Hospital, and especially Dr. Rengachary, are intentionally incomplete and false regarding the date and time of the ACDF by Dr. Rengachary, and the subsequent hospital course of the patient.
The patient acquired staphylococcus aureus, osteomyelitis with mediastinitis, respiratory distress (not treated timely) and acute adult respiratory distress syndrome (ARDS) and aspiration pneumonia, tracheostomy, vocal cord damage, and brain damage secondary to prolonged respiratory distress, which was not diagnosed in a timely fashion by the hospital team caring for the patient.
2. APPLICABLE STANDARD OF PRACTICED Tsicl OR CARE ALLEGED
The applicable standard of care required is that of reasonably prudent physicians and surgeons and medical care providers in the same or similar circumstances as those who were conducting surgical procedures, and caring for the patient, Cynthia Gawlik, from the time of her admission on November 30, 1999, and subsequent surgeries, including the ACDF by Dr. Rengachary from neurosurgery on December 1,1999, and post operative care through discharge on January 12, 2000.
Pursuant to MCL 332.21513 entitled “Duties and Responsibilities of Owner, Operator or Governing Body of the Hospital,” the owner, operator and governing body of a hospital licensed under this Article (A) are responsible for all phases of the operation of the Hospital, selection of the medical staff, and quality of care rendered in the Hospital. Defendant DMC and Harper Hospital had this statutory duty in addition to its responsibly to act reasonably under the circumstances which existed in this case.
3. THE MANNER TN WHICH IT IS CLAIMED THAT THE APPLICABLE STANDARD OF PRACTICE OR CARE WAS BREACHED
The applicable standard of practice and care was breached when the above named health care providers, physicians, and surgeons faded to act reasonably under the circumstances which existed at the time the patient was admitted to Defendant Harper Hospital on November 30, 1999 and thereafter. Defendants were required to perform the ACDF by Dr. Rengachary on 12/1/1999 in a reasonable manner and in accordance with consent from the patient after she had been properly apprised of the risks and benefits of the proposed surgery. Dr. Rengachary and the physicians and residents responsible for this surgery acted unreasonably, including Dr. Julia Pilitsis, when they changed the surgical plan on the patient to anterior cervical dysectomy and fusion of C4-5 and C6-7 which greatly increased the risk to the patient of complications, and then, conducted the surgery and approach in a negligent manner. Plaintiff never understood and never consented to the changed surgical plan. Further, the patient never agreed to any use of cadaver donations for the cervical surgeries and would have refused same if she had known of the risks and proposed changes.
The 12/1/99 surgery was conducted in a negligent fashion, and resulted in the above described complications. These complications, including esophaeal [sic] perforation, were not diagnosed or treated in a timely fashion by Defendant Surgeon, by the attending physician, by the residents, or the team responsible for the patient’s care and treatment. Post-Operatively, as a result of the negligence of Defendant Physicians and Surgeons, the patient developed abscesses, osteomyelitis and mediastinitis and the other complications which would have been completely avoided but for the radical surgery performed on 12/1/99 without the consent of the patient, and but for the esophaeal perforation, and failure of the Defendants to timely diagnose and repair the esophaeal perforation, before additional complications occurred.
Post-Operatively, these complications were allowed to worsen, requiring I & D on 12/23/99. She remained hospitalized until January 12, 2000. Plaintiff complains that the entire admission of 11/30/99 through January 12, 2000 was the result of a series of complications and botched procedures which were caused [by] Defendants [sic] negligence and failure to act reasonably from the time of the surgery on 12/1/99 and thereafter.
4. THE ACTION THAT SHOULD HAVE BEEN TAKEN TO ACHIEVE COMPLIANCE WITH THE STANDARD OF PRACTICE OR CARE
In order to comply with the standard of practice, the above named physicians and health care providers and hospitals needed to [sic, to do] the things listed in Section #2 above.
Although the notice names several physicians, hospitals, and professional corporations, plaintiffs notice generally described the standard of care as “that of reasonably prudent physicians and surgeons and medical care providers in the same or similar circumstances as those who were conducting surgical procedures, and caring for the patient----” The notice did not contain a standard of care particularly tailored to Rengachary and did not contain any standard of care for UNA. Moreover, the compliance portion of the notice merely referred defendants to an earlier section, which lacked any information on how defendants could have complied with the standard of care.
Nevertheless, plaintiff filed suit on May 23, 2002, relying on an affidavit of merit signed by Dr. Karl Manders. Defendants responded in a timely fashion with an affidavit of meritorious defense signed by Rengachary. Defendants’ affidavit was extremely conclusory, and in it Rengachary merely opined that plaintiff received diagnosis and treatment according with the standard of care, which only required “evaluation of the patient’s medical condition and assessment of reasonable courses of treatment.” Their answers, however, clearly challenged the sufficiency of plaintiffs notice of intent and affidavit of merit. They also clearly raised the affirmative defense that plaintiff failed to comply with the statute of limitations. The case proceeded without further incident, except that the list of defendants dwindled until only Rengachary and UNA remained in the suit.
During discovery, plaintiffs expert revealed that he would not disparage Rengachary’s decision to change the approach from a posterior to an anterior approach or from a foraminotomy on the left side to a fusion and plating procedure. The expert also agreed that the esophageal perforation could have occurred without negligence on Rengachary’s part. In fact, the expert’s only point of genuine contention was how Rengachary obtained plaintiffs signature on the surgical consent form. The expert opined that Rengachary should have cancelled or postponed the surgery indefinitely rather than obtaining consent for a new operation from a distressed patient. Defendants limited plaintiffs complaint to the issue of informed consent by successfully moving to strike the unsupported allegations regarding negligence in the selection and performance of the actual surgery.
According to the final pretrial order, plaintiff asserted that she would argue the primary issue of lack of consent, but did not raise any issue regarding defendants’ affidavit of meritorious defense. Nevertheless, on the day scheduled for trial, and only a few weeks after our Supreme Court issued its opinion in Roberts v Mecosta Co Gen Hosp (After Remand), 470 Mich 679; 684 NW2d 711 (2004), plaintiff and defendants filed motions to strike; plaintiff sought to strike defendants’ affidavit of meritorious defense, and defendants sought to strike plaintiffs notice of intent and affidavit of merit. The trial court heard the motions the following day and held that plaintiffs notice and affidavit sufficiently complied with the requirements in Roberts, but defendants’ affidavit did not. The trial court denied defendants’ motion, granted plaintiffs motion, and entered a default in plaintiffs favor. Defendants applied for leave to appeal, which this Court granted.
Defendants argue that the trial court abused its discretion when it granted plaintiffs motion for a default on the basis of a timely filed, but defective, affidavit of meritorious defense. Under the particular facts of this case, we agree. The trial court applied case law designed to enforce statutes of limitations and a defendant’s basic compliance with filing requirements. Roberts, supra at 686; Kowalski v Fiutowski, 247 Mich App 156, 165-166; 635 NW2d 502 (2001). Here, defendants’ pleadings were not tardy or totally absent, but merely deficient, cf. Kowalski, supra at 161, and defendants were not racing the statute of limitations. See id.; see also Saffian v Simmons, 267 Mich App 297, 304; 704 NW2d 722 (2005) (explaining that the requirement in Scarsella v Pollak, 461 Mich 547, 549; 607 NW2d 711 [2000], regarding the mandatory inclusion of an affidavit of merit with a complaint applied only to cases in which the statute of limitations was an issue).
Nevertheless, the trial court did not discuss the prejudice to plaintiff or the appropriateness of any other remedial sanctions on the record, but improperly defaulted defendants without explanation. See Kowalski, supra at 166. This Court has previously rejected the argument that default is an appropriate sanction for failing to file an affidavit of meritorious defense when a plaintiff, as here, suffers no prejudice and fails to raise the issue before trial. Wilhelm v Mustafa, 243 Mich App 478, 485; 624 NW2d 435 (2000). We have also rejected dismissal of a plaintiffs suit merely for the failure to comply perfectly with the affidavit of merit statute. VandenBerg v VandenBerg, 231 Mich App 497, 502-503; 586 NW2d 570 (1998). Additionally, the sanction of dismissal with prejudice, comparable to the default in this case, is only appropriate when a flaw in the affidavit is accompanied by a statute of limitations problem. Scarsella, supra. Nevertheless, the trial court failed to recognize any of these legal distinctions and entered the default as a matter of course. An error of law may lead a trial court to abuse its discretion, see Craig v Oakwood Hosp, 471 Mich 67, 82; 684 NW2d 296 (2004), and a trial court abuses its discretion by employing default as a sanction without determining, on the record, whether less drastic alternative sanctions are appropriate, Kowalski, supra at 166; Houston v Southwest Detroit Hosp, 166 Mich App 623, 631; 420 NW2d 835 (1987). Because the trial court abused its discretion, we reverse the trial court’s order entering the default.
Default was an inappropriate sanction in this case. See Wilhelm, supra at 483-486. Even assuming that default is ordinarily an available remedy for a technically deficient, but timely filed, affidavit of meritorious defense, plaintiff forfeited the issue by not raising it for the final pretrial order. See id. at 485. By that time, Rengachary, plaintiffs expert, and other medical personnel had been fully deposed, providing the entire factual backdrop for the claims and defenses relevant to trial. Defendants correctly argue that, during his deposition, Rengachary explained how his actions conformed to the standard of care. Moreover, he was available to clear up any ambiguities in his affidavit of meritorious defense. Nevertheless, plaintiff avoided the issue and waited until the day of trial to bring her motion to strike. Although this caused defendants to incur the expense of extensive trial preparation, plaintiff failed to present any evidence that a deficiency in the affidavit of meritorious defense prejudiced her ability to prepare for trial or led to any other form of prejudice. See id.
Plaintiff mistakenly relies on a series of cases in which a plaintiffs failure to provide a proper affidavit of merit or notice of intent led to dismissal. However, in each of those cases, the plaintiff ran into problems with the statute of limitations. As we pointed out in Kowalski, supra at 165, plaintiffs and defendants are different for the simple reason that defendants are never racing against time to comply with a statute of limitations. Moreover, in VandenBerg, supra at 502-503, we held that, absent statute of limitations problems or other serious prejudice, dismissal of a plaintiffs complaint was not a permissible remedy for failing to provide an affidavit of merit with the complaint. See also Saffian, supra at 304. In other words, we have consistently distinguished between cases involving a statute of limitations bar and those simply involving defective pleadings. Even in the total absence of an affidavit of merit, a plaintiff is not barred from filing a new complaint unless a statute of limitations problem arises. Scarsella, supra at 551-552. The trial court failed to appreciate this legal distinction and granted plaintiffs motion for a default as a matter of course, effectively barring defendants’ legitimate defenses. The trial court failed to determine what prejudice, if any, plaintiff suffered because of the cursory statements in defendants’ affidavit and also failed to consider, on the record, any lesser alternative remedial sanctions. As stated, this was not a proper exercise of its discretion.
We next consider defendants’ challenge to plaintiffs notice of intent. In Roberts, our Supreme Court held that a claimant’s notice of intent must “make good-faith averments that provide details that are responsive to the information sought by the statute and that are as particularized as is consistent with the early notice stage of the proceedings.” Roberts, supra at 701. As in Roberts, supra at 692-693, plaintiffs notice of intent contains a one-sentence standard of care that generally encompasses all caretakers. Moreover, the notice does not contain any standard of care for UNA and fails to explain any theory of liability that pertains to it. See id. at 693. The portion of the notice designated for explaining how defendants could have conformed to the standard of care merely refers defendants back to the portion containing the standard of care. This practice was expressly condemned in Roberts. Id. at 698. Although the notice’s third paragraph provides more detail about what plaintiff thought Rengachary did wrong, it still failed to explain what he should have done, a defect that came to light when plaintiffs expert stopped short of deeming Rengachary’s selection and performance of the surgery as negligent acts. Because plaintiffs notice of intent failed to meet the standards set forth in Roberts, the trial court erred by denying defendants’ motion to strike it, and we reverse that order. However, defendants never moved to dismiss on the basis of the statute of limitations, so we remand to the trial court for further proceedings.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
We do not consider defendants’ challenge to plaintiffs affidavit of merit because our decision on plaintiffs notice of intent is dispositive. | [
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Graves, J.
This bill was filed'in January, 1875, to set aside proceedings for the foreclosure of a mortgage under the statute, and for redemption. A decree was given for complainant and the defendant appealed.
On the 9th of May, 1857, Noel B. Hollister and wife mortgaged the premises to defendant for $500 and after-wards and on the 2d of December, 1868, they again mortgaged them except a strip of two feet, to complainant, and in the forepart of 1873 this mortgage was foreclosed at law and the premises were purchased thereon by complainant. He went into possession. No question is made concerning these proceedings. The controversy relates to the first mortgage. In October, 18JT3, defendant commenced proceedings at law to foreclose it and claimed in his notice that the sum of $71.93 was due. The first publication was made October 16 and the premises were struck off on the 9th of January, 1874, for $113.44 to defendant. No deed was made until the 13th of January, four days afterwards, and it was then placed on file in the register’s office. It had an endorsement by the sheriff that it would become operative in one year from the 9th day of January, 1874, unless the premises should be redeemed..
This delay in making and filing the deed gives rise to a question of much difficulty. It was certainly an irregularity which was very apt to mislead and make trouble. The statute is express that the deed shall be executed, delivered and deposited in the register’s office forthwith. The amount bid as the consideration is to be inserted and the time when it will be operative is to be endorsed. Comp. L., § 6920. The regulation is one of importance.
New and peculiar relations, rights and duties arise on the completion of the sale, and the statute appears to intend that the giving and depositing the proper deed shall be incidents of the sale and the regular acts to consummate it. No other writing _is provided for as a contemporary memorial of the proceeding. Until the sale redemption must be had against the mortgage, but after that, it is required to be from the sale. The law does not contemplate any suspension of the right to redeem, and supposes that a state of things is in constant existence in which redemption would be practicable.
Prior to the sale the application must be to the party. He is then to accept payment and redemption, and stringent regulations are provided to compel satisfaction in case of valid tender. § 4246. The matter remains in private hands and no officer is authorized or required to adjust and receive redemption.
As soon, however, as the sale is completed, new conditions arise. New rights and duties attach immediately. No provision is made for a state of things involving the rights and duties applicable before and after sale in any promiscuous way. As soon as the sale occurs, the register may be applied to for redemption against it. No delay seems to be provided for. The right is absolute, and no one entitled can be regularly prevented, and 'the facts may be such as to make it very important.
So long as the deed is not given, the full right to redeem against the sale provided by the statute is impracticable. The register cannot act because he has nothing before him to authorize or require him to do so and nothing on which he can act.
The present case illustrates somewhat the mischief to arise from substantial departures from the statute. The fact of- striking off the property occurred on the 9th of January. , The deed was not made and filed until the 13th of January. According to the theory and claim of the defense, the tenth, eleventh and twelfth days next after the property was struck off were part of the redemption year and covered time when as matter of law the complainant was entitled to redeem at the register’s office and against the sale. And yet in fact; as conceded, the neglect on the part of the agencies resorted to by the defendant to execute the power of sale ren dered it impossible to effect redemption through the register on either of those days.
Finally, the disagreement between the date of the striking off of the property and the date si the execution and filing of the deed, misled the register and materially helped to bring on, if it did not wholly cause, this expensive controversy. The defendant insisted that the space between the act of striking off the property and the deposit of the deed must be deemed a part of the redemption year, and consequently that on the arrival of January 9th, 1875, the right to redeem was terminated, and the register, although of a contrary opinion until the expiration of that time, was actually brought by defendant to accept his view.' Moreover, complainant had repeatedly applied to the register and had been constantly instructed by him that the time would run until the 13th of January, being a year from the deposit of the deed. This advice seems to have been confided in, and in fact complainant offered redemption to the register between the 9th and 13th of January, 1875, and was refused. The door was in fact closed against amicable redemption.
The reasonable view to take of the statute is that it regards the execution and deposit of the proper deed as the consummation of the sale, and as marking the true time, when there is no unreasonable delay, for the commencement of the redemption year, and the time for dating the beginning of the period in the certificate for the deed to become operative. Still we are not to be understood as saying there may not be so long delay in filing the deed as to render the whole proceeding, as one of foreclosure, void. In the present case complainant was deprived of his right to redeem whilst the time was still current therefor.
The remaining question relates to the amount to be paid as a condition of redemption, and only a few words are needed upon it. The result depends upon deductions from a mass of memoranda, numerous depositions, often obscure and conflicting and covering the transactions of a number of years. The parties appear to have been at variance and their accounts concerning their affairs are discordant. Very precise results are unattainable. The defendant claimed there was due him on the mortgage at the date of his notice, October 16,1873, the sum of $71.93, being the amount inserted in his notice. The circuit judge found that this claim was excessive and that there was behind at the date of the notice only $35.33. The complainant acquiesced in this determination. The difference is only $36.60, and an examination of the record has convinced us that this allowance by the circuit judge is as nearly accurate as we can make it.
The final result is that the decree should be affirmed with costs.
The other Justices concurred. | [
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Marston, J.
This was an action of trover brought by Soper as assignee of Carter & Minkler, to recover the value of a stock of goods taken from him by the defendant.
On the trial Fry claimed to have taken the goods as deputy sheriff by virtue of a writ of attachment issued out of the circuit court at the suit of John P. Woods against Carter and Minkler as defendants, and farther claimed that the assignment to Soper was fraudulent and void as against the creditors of the assignees, for matters apparent upon the face thereof, and also because of other matters as shown by the testimony on the trial.
The defendant on the trial was in no shape to attack or question the validity of the assignment. It was a matter in which strangers were in no way concerned. Attaching or judgment creditors could question the validity of the assignment, but none others. The plea was the general issue, and there was no notice attached thereto or in connection therewith referring to or justifying the seizure as having been made by virtue of any judicial proceedings. The evidence offered of the proceedings by attachment was clearly inadmissible, and should have been rejected upon the objection made by plaintiff’s counsel to their admission. This case must therefore be considered as though no such evidence had been introduced. Rosenbury v. Angell, 6 Mich., 508.
The judgment must therefore be affirmed with costs.
The other Justices concurred. | [
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] |
Campbell, 0. J.
Goodrich, being sued on a note payable in several installments with annual interest, upon an alleged default in payment of an installment subsequent to the first, set up in defense that a mortgage foreclosure had been commenced and carried to decree on a mortgage given to secure the note. It appeared on the trial that this was the case, and that' all the property had been sold. The court below disregarded this defense and gave judgment against him.
The statute is very clear that no such action can be brought without leave of the court where the foreclosure was had. Comp. L., § 5149.
The defense, however, is not an absolute want of power to sue at all, but a want of power to sue without leave. We held in Joslin v. Millspaugh, 27 Mich., 517, that pendency of proceedings in equity could not be pleaded in abatement at law, but that resort should be had to the court of equity to restrain the unauthorized suit. This is the case where suiis are brought by receivers. Wynne v. Lord Newborough, 1 Ves. Jr., 164; Anonymous, 6 Ves., 287. The objection is not one which lies in bar of the cause of action, but only to the authority to sue without leave, which does not touch the merits.
Bringing such a suit is an abuse which the court below should have checked by a stay, if applied to for that purpose. There may be reasons not necessarily bearing on the debt as a legal obligation, which would justify the court in equity in refusing leave, which could-not properly be granted ex parte where defendant was within reach. We are not prepared to say that judgment should not be stayed upon a sufficient showing of equities if they exist. Upon this,- as it was not argued, we give no opinion. But we think the defendant below ought to have made a motion originally to stay proceedings, before going to trial. This would have compelled the plaintiff to become a moving party to get leave, inasmuch as the statute is imperative, and would have enabled the propriety of granting leave to be' settled on its own merits. The question was not one for the jury.
We are therefore compelled to affirm the judgment with costs, but we shall do so without prejudice to any application which may properly be made below at law or in equity for relief against the abuse of practice.
The other Justices concurred. | [
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] |
Marston, J.
Suit was commenced upon a forfeited recognizance.
Upon the trial objections were made that there was a variance between the allegations in the declaration and the recognizance offered in evidence, and that the latter was fatally uncertain and defective.
In the declaration Gordon was charged with having, at a time and place mentioned, “feloniously and burglariously broken and entered” with intent, etc., while the language of the recognizance was- that he “did break and enter.” These objections were not well taken. The recitals in substance are alike, and the charge as set forth .in the recognizance was sufficiently certain and accurate. Daniels v. People, 6 Mich., 385.
The recognizance required the respondent to appear in court at a time certain to proceed with the examination, to appear in said court from day to day, as ordered by the court and to not depart without leave.
As we understand counsel it is not claimed that such a condition was improper or invalid, or that respondent would not be bound to appear from day to day during the examination. The claim made is that such a condition could not be so construed as to require the respondent to appear at some future day to which the examination might be adjourned; that there is a difference between formal adjournments for one or more days, and an examination carried on and continued from day to day.
Any magistrate, for an offense not cognizable by a justice of the peace, may adjourn an examination pending before himself, from time to time, as may be necessary, without the consent of the person charged, and to the same or a different place in the county, as he shall deem necessary. Comp. L., § 7852. Where a person accused has entered into a recognizance for his appearance before a magistrate, to proceed with an examination, and not to depart the court without leave, such recognizance must be considered as binding him to appear at such time or times, and at such place or places, as the magistrate may, acting within his jurisdiction, lawfully order or direct. The statute clearly contemplates, and the parties signing the recognizance must have understood, that it would remain in full force and effect during the entire examination, and that should the person recognized fail to appear before the magistrate, at such time and place as should be deemed necessary, he would be in default and his recognizance forfeited. The conditions as set forth in the recognizance need not recite or enumerate the several powers possessed by a magistrate upon an examination, and require the accused to observe each and every of them; such a requirement would but enable parties to enter into and forfeit their recognizances with impunity. A recognizance requiring the person accused to appear before the magistrate for examination, in regard to the offense charged, and not depart the court without leave, is sufficient, and under such it would be the duty of the person charged to appear and remain in attendance during the entire examination of the whole matter, whether continued from day to day, or adjourned from time to time, as might be deemed necessary. See Comp. L., § 7854.
Another objection was urged, viz.: that there was no record evidence that default had been made.
It appeared that the police justice, at the time the case was called and the accused failed to appear, made upon the' files in the case, a minute of that fact, also that the recognizance was forfeited and a re-arrest ordered. From the notes so made, it was the duty of the clerk of the police court to make up the record, which in this case was not properly done at the time.
The default and forfeiture were complete when the accused failed to appear and the magistrate had declared and recorded the fact and effect thereof upon the files. The clerk could not by a willful refusal, a negligent omission, or an unavoidable failure, caused by a pressure of. other official duties, to make up the record for the official signature of the magistrate, relieve the parties from the responsibility, that had already attached. The memorandum made by the justice upon the files would be proper and sufficient evidence, in an action brought upon the recognizance, to show that default had been made. Hickey v. Hinsdale, 8 Mich., 267. The statute, Comp. L., § 7854, does not contemplate that nothing short of a record in the docket of the magistrate of such default would be sufficient, or that the recognizance and record, as made in his docket, should be certified to the circuit. We are of opinion that the original memorandum of the default and forfeiture as minuted upon the files, or upon the recognizance, is the record there contemplated, and would be sufficient evidence, when properly certified to, of the facts there stated. The loss of the files with the original entries thereon, was sufficiently accounted for to admit secondary evidence.
The judgment must be reversed and a judgment rendered in favor of the People for the amount of the recognizance with costs.
The other Justices concurred. | [
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] |
Cooley, J.
The plaintiff in this case obtained a commission for taking the testimony of one Mary Ann Glaspell at Philadelphia. The. order for the commission was in due form, and interrogatories addressed to the witness were settled, and -attached to the commission. By mistake in drafting the commission the name of the witness appears to have been given as Mary Ann Gaspell. The person intended nevertheless appeared before the commissioner and her evidence was taken and duly returned. When the cause came on for trial the evidence was objected to for the reason, among others, that the person whose testimony was taken was not the person whom the commissioner was directed to examine. The circuit court sustained the objection.
The ruling was manifestly erroneous. The interrogatories attached to the commission sufficiently corrected the error, which was merely clerical. No one was misled; the right person was examined, and the objection had no merit whatever. It is said, however, that the error was immaterial, because on the other evidence in the case it clearly appears that the plaintiffs, had the deposition been received, could not have recovered. There are two conclusive answers to this suggestion: first, the facts in the case are not found by the circuit judge, and this court does not draw conclusions of fact from evidence; and second, we ■ cannot know what further evidence the plaintiffs might have put into the case had the deposition been received.
The judgment is reversed, with costs, and a new trial ordered.
The other Justices concurred. | [
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] |
Cooley, J.
The suit against Mrs. Russel in the court below was upon a contract of indorsement. It appears that the Detroit Car Works, a corporation in which she was a stockholder, was indebted to the Savings Bank upon a note which was about to be sued, and that to prevent suit she indorsed over to the bank a note held by herself against the Hamtramck Iron Works. This last note does not appear to have been received in exchange for the other, though the note against the Car Works was surrendered; but it was held by the bank as collateral security, and as it exceeded the other note in amount, there would have been a balance to return to Mrs. Eussel had it been paid. No payment being made upon it, this suit was brought.
When the indorsement was made, Mrs. Eussel was and now is a married woman. Under the statute (Comp. L., § 4803) she was empowered to contract, sell, transfer, mortgage, convey, devise and bequeath her own property and in the same manner and with the like effect as if she were unmarried. Therefore no question can arise respecting her right to transfer the note to the bank by indorsement. Nor, had the transfer been made for any purpose of her own, could her liability on the indorsement have been questioned. She might have purchased property with it, and thus pledged her personal responsibility. Tillman v. Shackleton, 15 Mich., 447; Campbell v. White, 22 Mich., 178; but affirmative proof that the'contract concerned her own estate would have been essential. Powers v. Russell, 26 Mich., 179; Emery v. Lord, 26 Mich., 431.
But a contract of suretyship is not one by which the woman contracts, sells, transfers, mortgages or conveys her own property or any part of it. She sells nothing by it, buys nothing by it, gives a lien upon nothing by it. She pledges merely her personal responsibility, having in view only the benefit of another, and not any advantage to her own estate. Such a contract is therefore not within the words of the statute. Neither is it within the spirit of the statute, for that had in view the relieving of the wife from disabilities which operated unfairly and oppressively, and which hampered' her in the control and disposition of her property for the benefit of herself and her family. It was not its purpose to give her a general power to render herself personally responsible upon engagements for any and every consideration which would support a promise at the common law. This has been so fully explained heretofore that nothing further need be said concerning it. DeVries v. Conklin, 22 Mich., 255; West v. Laraway, 28 Mich., 464.
But it is said that in this case the suretyship was for the benefit of a corporation in which Mrs. Eussel was a stockholder, and therefore she must be supposed to have had in view in making it her own interest in the corporation. Mrs. Eussel, however, was not identified with the corporation otherwise than as having an interest in it; the legal identity of each was distinct, and contracts for the benefit of the corporate estate were in no sense contracts for the benefit of the estate of one of its corporators. Talbot v. Scripps, 31 Mich., 268. It is true that if it resulted advantageously, it might eventually bring incidental benefit to the stockholders, but on the other hand it might also bring incidental injury; and whether beneficial or injurious, the result would have been indirect and circuitous, following not directly a contract made on her own behalf, but remotely a contract made on behalf of another.
It is not enough that such possible indirect benefits are looked for, in a contract of suretyship, for these may be in view in many cases, and especially when the wife becomes surety for the husband. The test of competency to make the contract is to be found in this; that it does or does not deal with the woman’s individual estate: possible incidental benefits cannot support it. Tested by this criterion this contract of indorsement, so far as it involves a personal responsibility, must fail. Mrs. Eussel has contracted for the advantage, not of her own estate, but of a corporation with which she is no more identified in law than she is with her husband or any third person. Even if presumptive incidental benefit could support her contract, it could not be supported under these circumstances, for by pledging her own responsibility for the corporate debt she would only put a large share of her estate at risk in the corporate business, and if any presumption could arise from this, it would be that it was prejudicial rather than advantageous. But there is no occasion to indulge in presumptions one way or the other; it is sufficient that the contract is one of suretyship merely, and as such is not one the statute empowers a married woman to make.
The judgment must be reversed with costs, and a new trial ordered.
Campbell, C. J. and Graves, J. concurred; Marston, J. did not sit in this case. | [
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] |
Cooley,’ J.
This is an appeal by one of tbe defendants from an order of the circuit court in chancery giving leave to the defendant Mickles to file a bill of review. The order granting leave was made before any steps had been taken in execution of the decree, and consequently before any new rights had been acquired.
The statute permitting appeals to this court from the circuit courts in chancery, confines the privilege to those who may think themselves aggrieved by “the ■decree or final order” of any such courts. If the order permitting a bill of review to be filed is a “decree or final order,” we can take jurisdiction of this case; otherwise not.
We have held in several cases that if an order finally disposed of any right, it might be appealed from, not withstanding the case vfas such that proceedings would afterwards be taken in the case. Thus, an order setting aside a sale in a foreclosure suit after the confirmation of report of sale may be appealed from: Bullard v. Green, 9 Mich., 222; Perkins v. Perkins, 16 Mich., 162. So may an order modifying a decree for alimony in a divorce case. Chandler v. Chandler, 24 Mich., 176. So may an order appointing a receiver where the order disposes of legal rights of others in order to put the receiver in possession. Lewis v. Campan, 14 Mich., 458. See People v. Jones, 33 Mich., 303.
But an order opening a decree to a defense, before any new rights have intervened, is not a final order. Prentis v. Rice, 2 Doug. (Mich.), 296. Neither is one which opens for review a decree for permanent alimony in a divorce case. Perkins v. Perkins, 10 Mich., 425. Neither is the order now before us.
The order for filing a bill of'review simply opens the controversy between the parties for further testimony, hearing and consideration. It is no more a final order than would be an order- opening a default, or permitting a new defense before decree, or bringing in a new party. It may embarrass and possibly wrong some one for the time being, but if so, we are powerless to prevent it. We can act only, in these cases, where the statute permits it; and here it is plain the power has been withheld.
The appeal must be dismissed. As the appellee for some reason has seen fit not to object to the want of jurisdiction, we award no costs.
The other Justices concurred. | [
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Marston, J.
Suit was commenced by declaration to recover upon a promissory note, default was entered and made absolute, and judgment rendered for plaintiff which is brought here upon writ of error.
The objections urged are that no copy of the note was served upon either of the defendants; no notice of the rule to plead was served upon either of them; and that it is doubtful whether the declaration was legally served upon either of the defendants.
On turning to the record we find a declaration upon the common counts, filed August 14th, 1876, as commencement of suit, with a copy of the note given thereon and a rule to plead entered on the same day. The sheriff makes and endorses upon a copy of the declara tion his return that he “ served the declaration of which the within is a true copy,” * * by delivering, etc., “ a true copy thereof, and of the foregoing complaint and the notice relating thereto.” The copy of the declaration upon which this return was made, had the usual notice endorsed thereon that a rule had been entered, and requiring the defendants to appear and plead thereto. The return of the sheriff that he served a true copy of the declaration “and of the foregoing complaint, and the notice relating thereto,” could mislead no one. The word complaint was evidently a mistake.
"We have noticed the criticism of counsel as to its being doubtful whether the declaration was served upon either of the defendants, but we fail to see any force in what is said. He certifies “that on the 9th day of Sept., 1876, he served the declaration of which the within is a copy, on John C. Hammond, and on the 11th day of Sept., 1876, he served on the defendant, Erastus L. Hammond * * by delivering to said defendant” etc. It is said that the word “defendant” as here used in the singular number, refers to Erastus L., and that there is therefore nothing in the return showing the manner of service upon John C. The failure of the sheriff to add the letter “s” to the word “defendant” does not, when the entire return is examined, leave the question in any uncertainty. It is clear from the return that service was made upon both the defendants at the respective dates given.
Upon the whole we think the objections made are frivolous and that the judgment must be affirmed with costs.
The other Justices concurred. | [
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Campbell, C. J.
Respondent was eonvicted of embezzlement of the funds in his hands' as treasurer of the township of Grosse Pointe. His last term of office began in the spring of 1876. There was evidence tending to show that he was removed from office in February, 1877, but the finding of the jury did not go upon this theory and he was eonvicted of having received a large sum of money officially, and having refused to pay it over as required by law, and with having appropriated, it to his own use.
There was full evidence of the receipt of the money,, and of his having failed to appear and account with the township board before the annual meeting, as required by § 715 of the Compiled Laws, and he paid over no> moneys to his successor.
Several points are presented by the record, which will be referred to as raised.
Objection is made that a plea of not guilty was put in without respondent’s consent. The statute authorizes this where he does not plead on arraignment (Comp. L., § 7907). Here he moved to quash, and after that motion was denied, the plea was entered. No attempt was made to put in a demurrer or special plea in bar, and we think there can be no occasion for a second arraignment, which seems to have been what respondent insisted on. Having been once arraigned and informed concerning the charge against' him he could have had no necessity for any further ceremony of that sort.
It is also objected that the information is defective in not containing specific allegations of the sums embezzled. But the statute (Comp. L., § 7811) expressly authorizes a general allegation without specifying particulars, and allows evidence thereunder of any embezzlement within six months of the day stated in the information. This objection therefore, is groundless.
It is also objected that the court erred in authorizing the jury to find embezzlement from the receipt of moneys without keeping any account of such receipts and expenditures, and a refusal to account with the township board, and the non-payment of moneys to his successor. It seems to us that in the absence of any attempt to explain or excuse such conduct the instruction was correct.
The main question presented is whether a township treasurer can be guilty of embezzlement at all.
We think there is no doubt that section 309 and section 7580 of the Compiled Laws hold such officers responsible for embezzling public moneys or property in their charge. The only question is whether the respondent did embezzle public moneys or property.
It is claimed the moneys in his charge were private and not public funds, and that he is only civilly responsible to account for funds in his control as a public debtor, and the ease of Perley v. The County of Muskegon, 32 Mich., 132, is relied on to support this theory. In that case it was held that the county treasurer who receives public money does not hold the specific bills or other parcels of money which he receives, as a bailee, but that he is answerable for the amount as a personal obligation. And it is claimed embezzlement can only be charged where the specific moneys converted belong to the public treasury.
We do not see the force of this suggestion. A fund is a distinct thing however frequently the coins or bills which may be received on its account are changed in identity. If a trustee receives a payment of $1000 on trust account, certainly the trust is not confined to that identical money. It attends its proceeds in whatever way they can be traced. It would be simply impossible to trace or identify the specific moneys which come into the hands of a public officer, who alone has the means of knowing what particular payments he receives and what he does with them. If a person receives a'particular amount belonging to a trust fund, and uses it for his own purposes without repaying or accounting for it, no one has any difficulty in seeing that he has converted the money improperly, although every specific coin or bill may have been substituted for some other means which he has exchanged and abstracted. Some of the difficulties of confining charges of embezzlement to specific moneys were referred to in the case of People v. McKinney, 10 Mich., 54. We have no hesitation in holding that whenever any township treasurer misappropriates his trust funds to his private purposes, and fraudulently refuses to account for them, he comes as plainly within the law as if he made a similar misuse of specific coins or bills which he had no right to exchange for their equivalents. Of course there may be losses and failures to pay or even to account, where the failure is due to misfortune or other cause not criminal. But where the design is criminal, the misuse of a fund belonging to the public, though changing its form constantly, is just as clearly an embezzlement of the property of the public as if any specific chattel had been so misapplied.
As there is no error in the record, it must be certified to the court below that judgment should be rendered on the verdict.
The other Justices concurred. | [
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] |
Cooley, J.
Williams on the eighth day of March, 1877, commenced suit in attachment against Brown before a justice of the peace. The writ was made returnable March 17, 1877. The constable to whom it was delivered made return as follows: “ By virtue of the within attachment, I, Wm. F. Montague, on the 8th of March, 1877, seized the goods and chattels of the defendant mentioned in an inventory [attached], and on the same day, because the defendant could not be found in the county of Kalamazoo, I left a copy of the within attachment and of the said inventory, duly certified by me, at' the last place of residence of said defendant in said county of Kalamazoo, with Stephen H. Wattles in whose possession I found the said goods and chattels.” Brown did not appear in the case, and the justice rendered judgment for the plaintiff.
It will appear by the foregoing return that no effort was made by the constable to make service on the defendant after the eighth day of March, 1877, and it is consistent with his certificate that Williams might have been found in the county, and personal service made upon him on any subsequent day. The statute requires personal service to be made at least six days before the return of the writ (Comp. L., § 5275); and it might therefore have been made on or before March 11th. We have repeatedly decided that if the officer fails to show by his return that he retained the writ in his hands and made diligent search for the defendant during the time within which personal service might by law have been made, his return of substituted service is insufficient to confer jurisdiction upon the justice to proceed further with the case. Withington v. Southworth, 26 Mich., 381; Nicolls v. Lawrence, 30 Mich., 395; Town v. Tabor, 34 Mich., 262. The case is governed by these decisions and the judgment must be reversed with costs.
We have taken no notice here of an amendment of the return, to which some attention was given on the argument, as it in no manner affects the point on which the case must turn.
The other Justices concurred. | [
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Campbell, C. J.
This ease is the same which came before ns on a former trial and exceptions therein, reported in 87 Mich., 25. After that decision, in which we held the declaration included a cause of action which was not admissible, an amendment was made. which it is now insisted obviated the difficulty. The objection to the original declaration was that while the action was case to recover damages on account of injuries to a wife by the defendant’s contributing to her husband’s intoxication, it also included a claim for money paid to defendant for intoxicating liquor, which under the statute was recoverable in assumpsit for money had and received.
The declaration originally contained a double termination in damages, viz: $5000 for the money paid for liquors, and $5000 in addition for damages suffered. The amendment consists in changing the ad damnum clause so as to make it read “wherefore plaintiff claims to recover of the said defendant for the damages as aforesaid suffered, the sum of five thousand dollars.” , The causes of action set forth in the body of the declaration remain unchanged.
We can see no change in the legal effect of the declaration. There can be but one award of damages on one declaration, and the ad damnum clause must be construed as referring to all the grievances set forth. Our former decision was not based on the form of the ad damnum clause, but on the incongruity of the separate grievances and causes of action set forth in its body. We do not therefore deem it necessary to go over the same ground again. This declaration seeks to recover in case in addition to personal damages, a money demand which could only be sued in assumpsit, and no testimony should have been received under it when, its duplicity was pointed out.
For the same reason we do not think it necessary to discuss the impropriety of receiving evidence of the amount of money spent at the defendant’s saloon. It formed no element in the lawful ground of action sued upon, and its reception could not be harmless. Plaintiff below, in the present form of action, could not recover back what her husband spent, nor could she measure her losses by what he paid out to Friend for liquor or for other purposes. That sum could furnish no means of estimating the change in her domestic support caused by her husband’s habits, and allowing it to be shown could not fail to lead the jury to consider it as an important element of recovery.
The sufficiency of the declaration to allow' evidence of damage from the increased drunkenness of a man who was not a sober man at the date set forth as the beginning of defendant’s misconduct was before us on the former hearing. We think it was not improper to cover such a case. Instructions to the jury would sufficiently apprise them not to give the wife damages for the loss of a sober husband, when she had only lost a drunken one.
We think evidence of the stipulation against drinking required and obtained of him by his partner on going into business had some tendency to show his habits at that time, and was admissible as an act ante litem, motam, of more or less significance.
Some other questions suggested on the argument become unimportant because of the imperfect manner in which the rulings excepted to are connected with any testimony actually given. Unless testimony is given in accordance with a wrong ruling, it can do no harm. We cannot tell what may have been given if not set forth.
The judgment must be reversed with costs and a new trial granted.
The other Justices concurred. | [
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Campbell, C. J.
In this case plaintiff in error claims freedom from liability on certain notes made by her for goods purchased, because she insists that as a married woman residing in Indiana she was disqualified from contracting in Michigan or elsewhere in that way.
We do not find in the record any evidence that the laws of Indiana disqualify her. If any such laws exist they should have been proven in the circuit court. We can only review such matters as that court has acted on, and we cannot reverse a judgment upon grounds not based on evidence introduced below. We cannot presume that there was anything which would make such notes void when our laws authorize them. Worthington v. Hanna, 23 Mich., 530.
We do not wish to be understood as intimating that our laws would not govern these notes at any rate, as made in Michigan. That point we do not decide because it is not required by the record.
Judgment is affirmed with costs.
The other Justices concurred. | [
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] |
Graves, J.
McHugh sued to recover on an open account and served with the declaration a copy of the account and of an affidavit made by him of the amount due. The defendant made no affidavit in reply.
On the trial the plaintiff contending that his affidavit had the effect to make out a prima facie case under the statute (Comp. L., § 5954), rested without adducing any extrinsic evidence whatever of the account. The -defendant then gave evidence tending to show that the account was not against him and that he was not debtor for it, and rested.
The plaintiff then sought to go back and give evidence of his original case, and on objection the court refused to permit it.
The affidavit of amount due on account seems to have been made seven days before the institution of the suit and the point is made that it was therefore of no force, and we think the objection is unanswerable.
In permitting the use of an affidavit to operate as prima facie evidence on the trial that there existed a cause of action to the amount sworn to when the suit was commenced, the provision • must be considered as intending that the oath must be at least substantially contemporaneous with the institution of the suit.
The very nature of the regulation implies that it must be so timed as to show how the fact is when the party asserts a right of action, and not how it may have been at some earlier time, and if such an interval occurs as to cause failure of this effect, the proceeding cannot aid the plaintiff’s case. Here the affidavit was made out of time, and when the plaintiff went to trial his situation was no better than it would have been if no affidavit had been made. He was required to prove his case in the ancient way. But he made no proof at all before resting, of his claim on the account, and he could not insist as matter of right upon going back and making such proof after the defendant had closed his case. So far as he had put forward any case by evidence in chief he was at this stage entitled as of right to give rebutting evidence, and' the court had a discretion to permit him to return and submit evidence in chief but it was not bound to do so. He could not insist upon it as a right, and the refusal of the court is not open to review. The questions as to what is the proper bearing and effect of a good affidavit under the statute do not arise.
What has been said disposes of the case.
The judgment should be affirmed with costs.
The other Justices concurred. | [
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Per Curiam.
An attachment is ashed against respondent for refusing to make return to the writ because not served also with a copy of the affidavit.
The writ here actually describes what documents it calls for, and respondent should have returned them. He would not be to blame for not returning papers to which his attention is not called by the writ unless otherwise informed, — for which purpose it would always be proper to append the affidavit. But we think it is not for him to object to doing what the writ plainly calls for.
In this case the respondent probably acted on advice of counsel, and we shall — as it is a new question — allow him to make a further return within thirty days after service of order. | [
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Carr, J.
This case has resulted from a traffic accident occurring in the city of Charlotte shortly before midnight on May 28, 1955. The testimony taken on the trial in circuit court is not materially in dispute. On the evening in question a birthday party was being held at the home of the plaintiff. Defendant was one of the guests. The latter expressed a desire for potato chips of a certain kind and indicated his willingness to procure them. Plaintiff thereupon advised defendant that he would himself go downtown in Charlotte and purchase the desired chips. Defendant, who had parked his car in such position that it was convenient for use, offered to drive plaintiff on the errand. Plaintiff accepted the offer, and the 2 men proceeded toward the business portion of the city.
The testimony taken on the trial indicates that plaintiff suggested to defendant that the purchase could be made at a certain shop located at the intersection of Main and Lawrence streets in Charlotte. However, defendant passed the shop referred to and as he went through the intersection began to accelerate his speed. It does not appear that plaintiff made any comment on defendant’s failure to stop at the suggested shop to make the purchase, apparently concluding that defendant preferred to go to another place of business therefor. Plaintiff called defendant’s attention to the fact that the speed limit in Charlotte was 25 miles per hour, which rate defendant was at the time exceeding.
Plaintiff also claimed that he admonished defendant to be careful in his driving because of the speed limit and the fact that there was a curve in the street ahead. Apparently another remark was made to defendant just as the car was proceeding into the curve at a rate of speed, as plaintiff claimed, of 70 miles an hour. Plaintiff testified that the warning at that time came too late, that defendant could not have prevented the car from leaving the road and running into a tree. As a result of the impact plaintiff was injured, and apparently defendant also sustained injuries. On the trial of the case he was called as a witness in his own behalf but claimed that he had no recollection whatever of the party held at plaintiff’s home, the trip downtown in Charlotte, or the accident in which the men were injured. Defendant’s claim as to his inability to remember what had occurred was not challenged.
The details as to what occurred on the trip from plaintiff’s home to downtown Charlotte rest wholly in the testimony of plaintiff. He stated in substance that during the first 4 blocks of the ride, which took them to the intersection of Main and Lawrence streets, defendant drove in a reasonable manner and did not in any way indicate that he was incapable of properly controlling the car, specifically stating that at the time the trip started defendant gave no indications of intoxication. It may be noted in this con nection that another witness testified to the fact that defendant had been drinking. It further appears that the remarks made by plaintiff to defendant during the period of time after the car passed through the intersection mentioned to the place of the accident, some 3 or 4 blocks down the street, evoked no response from the driver who gave no indication that he heard the admonitions but remained wholly silent. It is not claimed that any argument occurred or that defendant exhibited any indication of being irritated or otherwise displayed ill will toward plaintiff. The record contains no explanation with reference to defendant’s motive in driving at a high rate of speed. He was somewhat familiar with the streets of Charlotte, but there is no showing that he had knowledge of the location of the curve where the accident occurred.
It was plaintiff’s claim on the trial of the case that the errand on which the parties were embarked at the time of the accident was, in fact, a joint enterprise, and that plaintiff was entitled to recover damages on the basis of ordinary negligence. Defendant disputed such claim, insisting that the plaintiff was a guest passenger and that there was no liability in the absence of a showing of wilful and wanton misconduct or gross negligence within the meaning of section 401 of the motor vehicle code of 1949. Plaintiff further contended that if the relationship was that of driver and guest passenger liability should be predicated on the theory that defendant’s driving at an excessive rate of speed constituted wilful and wanton misconduct. At the conclusion of plaintiff’s proofs the trial judge, who heard the case without a jury, determined that the parties were not engaged at the time of the accident in a joint enterprise and that plaintiff was, in fact, a guest passen ger. Defendant’s motion for directed verdict was denied at the time and further proofs were taken, the trial judge obviously considering the issue as to wilful and wanton misconduct as one of fact. At the conclusion of the case he determined that the proofs did not entitle plaintiff to judgment and disposed of the case accordingly. Plaintiff has appealed.
The first question presented for consideration is whether the trial judge was in error in holding that plaintiff was a guest passenger and rejecting his claim that the parties were engaged in a joint enterprise. The term “joint enterprise” has been considered by this Court in numerous cases, among which is Farthing v. Hepinstall, 243 Mich 380, 382, 383. It was there said:
“To constitute a joint enterprise between a passenger and the driver of an automobile within the meaning of the law of negligence, there must be such a community of interest in its operation as to give each .an equal right of control. There must be a common responsibility for its negligent operation, and there can be no common responsibility unless there is a common right of control. It must be held that the driver is acting as the agent of the other members of the enterprise. The rule of joint enterprise in negligence cases is founded on the law of principal and agent. On no other theory could the negligence of the driver be imputable to a passenger. Being parties to the same enterprise, they are assumed to have common control and possession of the machine. Otherwise, each could not be charged with the negligence of the other. It is not necessary to review the cases in which this question is considered. The subject is discussed and many cases are cited in the annotation to Keiswetter v. Rubenstein, 48 ALR 1049 (235 Mich 36).”
In Laughlin v. Michigan Motor Freight Lines, 276 Mich 545, the plaintiff was riding with her husband at the time of the accident and resulting injuries for which, she sought to recover damages. The accident occurred in the State of Ohio as the parties were returning to their home in Pennsylvania after visiting friends in Michigan. In discussing the situation, it was said (p 552):
“Plaintiff and her husband were not engaged in a joint enterprise according to this record. The earmarks of the legal relation of a joint adventure in the operation of a motor vehicle may be found in Farthing v. Hepinstall, 243 Mich 380, and Frisorger v. Shepse, 251 Mich 121. Mrs. Laughlin neither shared the expense nor the control of the car. See, Huddy on Automobiles (6th ed), § 682; Berry, on Automobiles (3d ed), §514; 2 RCL, Automobiles, § 43, p 1208; 8 LRA NS 628; 32 Michigan L Rev, n 274; and cases annotated in 48 ALR 1055, 1077, 63 ALR 909, 921, and 80 ALR 312. See, also, Bailey v. Parker, 34 Ohio App 207 (170 NE 607).”
The general rule is summarized in 38 Am Jur, Negligence, § 237, pp 924, 925, as follows:
“Parties cannot be said to be engaged in a joint enterprise, within the meaning of the law of negligence, unless there is a community of interests in the objects or purposes of the undertaking, and an equal right to direct and govern the movements and conduct of each other with respect thereto. Each must have some voice and right to be heard in its control or management. No legal distinction exists between the phrases ‘joint enterprise’ and ‘the prosecution of a common purpose.’ ”
An interesting case that seems to be in accordance with the general rule on the subject is Van Gilder v. Gugel, 220 Wis 612 (265 NW 706, 105 ALR 824). There the plaintiff brought action to recover damages resulting from the death of her husband due, as it was claimed, to negligence on the part of one of the defendants. It appeared from the proofs that plaintiff’s husband was riding in an automobile driven by said defendant, that each of the men owned a wood lot, and that each wished to go to his lot for the purpose of sawing wood thereon. There was also an arrangement whereby each was to assist the other in certain work. Neither had any interest in the wood that belonged to the other. It was held that, as a matter of law, Van Gilder and the driver of the car in which he was riding at the time of the fatal accident were not engaged in a joint venture. Commenting on the situation it was said (p 621):
“They were not joint owners or bailees of the automobile. It was solely under Meicher’s control in every respect, and he did the driving. Neither the wood lots nor the wood were owned by Van Gilder and Meicher jointly or in common. Neither had or was to have any interest in either the land or the wood, before or after it was cut, which had theretofore belonged to the other. It continued to be the individual property of each original owner, to be used solely for his individual purpose. Consequently, the journey in question was not part of any business or enterprise in which they were jointly or mutually interested financially. Although each had a similar purpose in making the trip, it did not involve any joint financial interest to them, nor the performance of any joint duty on their part. Because of the complete absence thereof, there is no factual basis upon which to hold that they were engaged in a joint adventure or enterprise, and that, therefore, Van Gilder was charged with Meicher’s negligence in operating the automobile.” (Citing cases.)
In the final analysis any case based on a claim of right to recover damages for a negligent injury, and involving the question as to the existence of a joint enterprise, must be determined on the basis of the factual situation disclosed by the proofs. In the case at bar plaintiff had no interest in the automobile of defendant, nor any right to control the operation thereof. The purpose of the errand on which the parties went was to enable plaintiff to make a purchase. The mission was his and not that of the parties jointly. Defendant as a matter of accommodation to plaintiff, and of convenience, offered to take plaintiff downtown for the purpose indicated. Defendant’s interest in the potato chips, had they been purchased, would have been no different than that of other guests at the party. The furnishing of the refreshments was obviously considered by plaintiff as his obligation inasmuch as he was the host.' The following excerpt from the testimony of plaintiff fairly indicates the situation:
“Q. Was he to do the driving?
“A. Yes, sir.
“Q. You were to have nothing to do with that?
“A. No, sir.
“Q. That was his job?
“A. He was going to do the driving, yes, sir. In fact, it wasn’t discussed. He said he would take me and that was it.
“Q. That is right. You did not have any idea of driving when you started out. Did you?
“A. No, sir.
“Q. Driving his car?
“A. No, sir, because actually I could have—
“Q. (Interrupting) Or of telling him how to drive it?
“A. No, sir.
“Q. Or necessarily where to drive it, except to get some potato chips?
“A. I explained to him where we could get them at the Sweet Shop and where it was located.”
The testimony in the ease does not justify the conclusion that there was any mutual agency relationship as between the plaintiff and defendant. Defendant had the sole right to control his automobile, and the purchase of the desired refreshments was the mission solely of plaintiff. Without discussing this phase of the case further, we conclude that the trial judge was right in holding that plaintiff was a guest passenger, and that his testimony did not sustain his claim that there was a joint enterprise.
This brings us to the question whether the proofs in the case were of such nature as to require a conclusion that defendant operated his car in such manner as to have been guilty of wilful and wanton misconduct or gross negligence. The parties were apparently on friendly terms, a fact indicated by defendant attending the party as a guest and volunteering to drive plaintiff downtown in order to make the desired purchase. There is no showing that he acted in an irritable manner toward plaintiff or that he had any reason for so doing. As before suggested, there is no satisfactory explanation as to why he drove at a high rate of speed on the city street. It does not appear, however, that his manner of driving interfered with other traffic or, in fact, that there was other traffic, at the time, on the street where the accident occurred. Plaintiff’s warning as the automobile was entering 'the curve admittedly came too late to serve any useful purpose.
The question is, as in every case involving alleged liability under the guest act, whether the driver of the vehicle was guilty not merely of negligence but of wilful and wanton misconduct. There is no fixed rule that may be applied in determining such issue. Goss v. Overton, 266 Mich 62. The requirement that the misconduct must be wilful suggests that an inquiry into the driver’s state of mind, including his purpose and intent in indulging in the conduct of which complaint is made, is involved in the consideration of the case. In the instant proceeding the trier of the facts, after listening to the proofs of the parties, concluded that plaintiff had failed to show that defendant was guilty of the conduct specified in the guest act.
Driving at an excessive rate of speed does not necessarily establish liability nor does the failure under all circumstances to heed admonitions of a passenger suffice for that purpose. All facts pertaining to -the situation must be given consideration, and this Court may not set aside the judgment of the trial court unless found to be against a preponderance of the evidence. Generally speaking, different inferences may be drawn from testimony as to the behavior of a party, and as to what was actually done. The trial judge, as the trier of the facts, was entitled to exercise the prerogative of a jury and draw inferences from the proofs. In a number of quite recent decisions this Court has-firmly committed itself to the rule that whether the proofs sustain a finding of wilful and wanton misconduct or gross negligence involves an issue of fact to be determined by the trier of the facts. Kocks v. Collins, 330 Mich 423; Price v. Western, 330 Mich 680; Cain v. Enyon, 331 Mich 81; Tuinstra v. Lynema, 340 Mich 534.
In Stevens v. Stevens, 355 Mich 363, plaintiff sought to recover damages against defendant on the basis of liability under the guest statute, above cited. Judgment having been entered for plaintiff on the finding of the trial judge hearing the case without a jury, defendant appealed, claiming that the requisite showing of liability under the statute had not been made. This Court, after reviewing the record, declined to disturb the finding. It should be noted that there was proof in the case that the defendant driver displayed irritation by quarreling with one of the inmates of the car, that traffic conditions were poor, the night was foggy, and the surface of the highway was wet. Notwithstanding such conditions defendant drove at a very high rate of speed.
In Peyton v. Delnay, 348 Mich 238, it ivas held that the testimony justified submitting to the jury the issue of wilful and wanton misconduct as charged against defendant. There was testimony in the case indicating that defendant driver had exhibited a reckless state of mind. Prior decisions were cited in recognition of the general rule that the issue is ordinarily one of fact to be determined by the trial court or the jury, as the case may be.
In the case at bar the trial judge properly regarded the question as to the liability of the defendant under the guest act as presenting an issue of fact, and determined it accordingly. Reference was made in the opinion filed to the fact that defendant appeared to be normal when the parties started downtown, that he operated his car in an ordinary and proper manner for at least the first 4 blocks, and that the conduct on which the claimed right of recovery was based rested wholly on the manner of driving during the remaining distance of approximately 3-1/2 blocks to the place where the accident occurred. Such conduct was found to constitute ordinary negligence, but the circuit judge declined to say that it justified a finding of wilful and wanton misconduct. The case is .somewhat unusual in some of its aspects, but we think the trial judgé was entitled to draw inferences from the testimony as given by plaintiff, and to base his conclusion on the facts established by the proofs and on the inferences permissibly drawn therefrom. It may not be said on this record that the judgment entered was against a preponderance of the proofs.
The judgment of the circuit court is affirmed.
Dethmers, C. J., and Kelly, Edwards, and Kavanagh, JJ., concurred with Carr, J.
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Kavanagh, J.
Plaintiff, a guest passenger in a fellow employee’s car, brought an action to recover for personal injuries sustained by him when a collision occurred on the north half of an east-west highway between the westbound automobile in which plaintiff was a guest passenger and the eastbound automobile driven by defendant Booth. The point of collision was on West Long Lake road approximately 1/4 mile east of its intersection with Middle-belt road in Oakland county. West Long Lake road at this point is a 2-lane, paved, undivided highway running in a generally east-west direction. Admittedly, defendant’s car, which was traveling in an easterly direction, slipped off the edge of the pavement and dropped into a rut. This caused defendant’s car to skid and swerve sideways onto the north half of the highway, colliding with the car in which plaintiff was riding as a passenger. This collision occurred on March 16, 1956.
The case was tried to a jury and upon its rendering a verdict of no cause for action, the court entered a judgment to that effect. Plaintiff moved for a new trial, claiming the verdict of the jury was contrary to law, contrary to the great weight of the evidence, and unsupported by the evidence. Plaintiff added the further reasons that the court erred in refusing plaintiff’s number 2 request to charge (emergency doctrine); that the court erred in failing to instruct the jury that the defendant was guilty of negligence which was the proximate cause of the collision; that the court erred in failing to clearly instruct the jury that the conduct of plaintiff’s driver was not an issue for their consideration and/or that plaintiff’s driver was not guilty of any negligence or contributory negligence or of any negligence or contributory negligence proximately related to the collision; and that all of the foregoing matters resulted in a miscarriage of justice.
The court in a written opinion denied the motion for new trial. Plaintiff appeals and states his question as follows:
“Is a jury verdict for defendant contrary to law and the great weight of evidence, warranting the granting of a motion for new trial, where an eastbound defendant, without excuse goes off a 2-lane highway on a curve, encounters a rut off the roadway on the snow-covered shoulder, and is thrown out of control, skidding sideways along the highway approximately 100 feet on the wrong half of the road into the westbound vehicle in which plaintiff is a guest passenger? (On such fact, should the court have instructed that defendant was guilty of negligence as a matter of law?)
“The trial court said ‘No.’
“Plaintiff-appellant contends the answer should be ‘Yes.’ ”
In order to properly understand the issues involved in this case, these additional facts are necessary :
Plaintiff testified that his driver was proceeding in a westerly direction at approximately 25 to 30 miles per hour and that the plaintiff first noticed the defendant’s vehicle when it was some 50 to 75 feet away. At that moment the defendant’s vehicle was on its own half of the highway facing easterly, but beginning to go out of control. Defendant’s car was seen by the plaintiff to skid and swerve, finally facing south and skidding sideways in an easterly direction with the rear end of the car slightly to the east of its front end. The rear of defendant’s car was over the center line and blocking the north half of the highway when it collided with the front of the vehicle in which plaintiff was riding. Plaintiff’s driver testified similarly except that he indicated he first saw defendant’s car when the cars were some 135 to 140 feet apart, and he testified defendant’s speed to be in excess of 65 miles per hour. The defendant himself testified that he was traveling in an easterly direction, having entered Long Lake road about 1-1/4 miles west of the point of collision. He testified he was traveling 30 to 35 miles per hour and that just before the accident he was rounding a curve to the right at approximately 30 to 35 miles per hour when his right rear wheel slipped off the pavement into a rut which was directly adjacent to the slab of concrete, and in trying to pull his car back onto the slab he turned his wheels in a clockwise direction which brought his car back on and threw it into a skid sideways going down the road.
All of the witnesses testified that the pavement was slippery and that there was snow on the ground, and defendant acknowledged that the pavement had been wet and slippery for the entire distance he traveled on West Long Lake road.
A State police trooper testified that the pavement was snowy, quite packed, packed with snow and slippery. He also testified that the shoulders were covered with snow and that the physical evidence clearly showed the point of impact in the westbound lane with tire tracks of defendant’s car approximately 100 feet long, evidencing the defendant’s skid to the point of impact from a rut' off the pavement in the shoulder adjacent to the eastbound lane. He further testified that the rut in question was “right at the edge of the cement portion of the roadway.”
Plaintiff’s driver testified that lie applied bis brakes and stopped bis car before tbe collision. Tbe police officer testified that be saw no marks on tbe road made by tbe skidding or braking of tbe plaintiff’s car. Defendant Booth testified that after be lost control of bis car and when bis car was sliding-sideways blocking tbe westbound lane, be looked and, for tbe first time, saw tbe car in wbicb plaintiff was riding some 800 to 1,000 feet away, beaded west in tbe westbound lane and coming over the crest of tbe bill wbicb was some distance to tbe east of tbe point of impact. There was no testimony that plaintiff’s driver made any attempt to steer bis car onto tbe right, that is tbe north shoulder of tbe road; all of tbe testimony, at least inferentially, is to tbe contrary.
Plaintiff in bis appendix and brief does not allege be requested tbe trial court in writing to charge that defendant was guilty of negligence as a matter of law. Defendant, on page 3 of bis appendix and brief, states as follows: “No request to charge that defendant was guilty of negligence as a matter of law was submitted.”
The trial court in bis opinion denying motion for new trial said:
“Tbe real question involved in this matter, in tbe court’s opinion, is whether or not tbe court should have directed tbe jury to find tbe defendant guilty of negligence as a matter of law, and left only the question of damages to be considered. In this connection it should be pointed out that counsel did not make any such request but seemed to be content to leave this question to tbe judgment of tbe jury. If tbe defendant was guilty of negligence as a matter of law counsel waived his right to such an instruction, and be cannot now be beard to complain.”
An examination of tbe file discloses a request to charge was filed on July 3, 1958 — tbe day of tbe charge to the jury in the trial of the cause — reading as follows:
“Under the law of this State, there is a statutory duty of the driver of an automobile to drive his automobile on the right half of the roadway, assuming sufficient width to do so. Violation of such statutory duty is considered negligence per se.”
(It is to be noted this request is not a proper charge without incorporating causal connection of the negligence per se.)
Whether such request was actually submitted to the trial judge before the completion of his charge is impossible to determine. It is to be noted, however, that at the conclusion of the charge counsel for plaintiff was asked if there was anything further or any corrections to the charge which he wished the court to make. Reference was then made to clarification as to future headaches and permanent injuries, but no request was made with respect to the defendant being guilty of negligence as a matter of law.
It would appear to the Court that the sole question to be determined in this case is whether or not there was an issue of fact which was properly submitted to the jury. In the instant case, although it was admitted that the defendant was on the wrong side of the highway at the time of the collision, there is no showing that he was there intentionally. Although the highway was slippery, and this was known to defendant, there is no showing that the speed at which he was driving was unreasonable considering the condition of the highway.
The controversy is whether under the circumstances, particularly in view of the snow-covered and slippery highway, defendant was guilty of negligence in running off the paved portion into the rut, or whether this could have happened through no fault of his own. The resolution of this controversy and the judging of the reasonableness, or lack of it, of defendant’s conduct under all the existing circumstances was a matter for the jury.
This Court in a number of cases has held that the mere fact that an automobile is on the wrong side of the highway at the time of collision does not of itself make the driver thereof guilty of negligence as a matter of law. The fact that an automobile skids across the highway as a result of striking a rut or a patch of ice, or because of a slippery pavement, through no fault of the driver, has been held to excuse failure to comply with the requirement of the statute that the driver of a car must keep on the right side of a street or highway. Leonard v. Hey, 269 Mich 491 (37 NCCA 111); Cosgrove v. Thomas, 257 Mich 376; Peden v. Carpenter, 352 Mich 604. The issues involved in how defendant struck the rut and the distance of plaintiff’s driver’s car from defendant’s car at the time defendant skidded onto the north half of the highway were factual and were properly submitted to the jury in a charge that, taken in its entirety, carefully protected the rights of plaintiff as well as those of defendant. The weight to be given to the testimony of the different witnesses and the inferences to be drawn from such testimony rested in the good judgment and common sense of the jurors.
It is certainly a factual question to be determined by the jury as to whether or not the negligence of defendant, if any, was a proximate cause of the accident. Beading the charge of the court as a whole, he properly stated the position and theories of the respective parties. He charged the jury as to the questions of law, instructing them that a violation of the State statute, requiring driving on the right side of the road except for proper passing, is negligence; and then instructed them that if that negligence was a proximate cause of the injury the defendant would be guilty of negligence, his negligence would be a proximate cause of the injury, and the plaintiff should recover. He instructed the jury further with reference to the statute that provides the operator of an automobile must drive with due caution and circumspection and at a careful and prudent speed not greater than nor less than is reasonable and proper with due regard to the circumstances. He further instructed the jury that if they found a violation of the statute, and if they found such violation was a proximate cause of the injury, then the plaintiff would be entitled to recover. He instructed the jury that the negligence of the driver of the automobile in which plaintiff was a passenger could not be imputed to plaintiff; in fact, he instructed the jury that that question would not come up for their consideration.
This Court of late has been increasingly burdened with appeals involving the correctness of instructions to juries. It is impossible to establish rules that will answer all of the particular questions relative to the issue. However, it is apparent that the bench and bar are entitled to have some guidance in this important field.
The law applicable to jury trials requires the court to instruct the jury correctly as to the law of the case, regardless of whether there has been a timely and proper request. This has been the law in Michigan from its earliest day. Mr. Justice Champlin, in Barton v. Gray, 57 Mich 622, has probably outlined the law as succinctly as it is possible to do in the following words (pp 631, 632):
“It does not appear from the record that any requests were presented on behalf of the defendant for specific instructions to the jury. Undoubtedly it is the duty of the court to present ■ to the jury .the substantial issues in the cause, and to state to them the principles of law governing the rights of the parties, whether any specific instructions are requested by counsel or not. This duty was performed by the trial judge in this case. His instructions covered all branches of inquiry under the issues made by the pleadings; and if counsel desired more full or specific instructions upon any particular point, it was his duty to frame a special request to the court to charge as desired. Omitting or neglecting to do so, he will be deemed to be satisfied with the sufficiency of the instructions as given, and an exception based upon the want of sufficiency on particular points of law cannot be assigned as error.” (Emphasis added.)
A modern day version of the same rule is set forth in the lucid comments of Mr. Justice Voelker in Huffman v. First Baptist Church, 355 Mich 437, where he said (pp 445-447):
“We find in the instant case that the charge of the court, when read as a whole, adequately stated the various claims and counterclaims of the respective parties, and understandably presented the applicable rules of law and essential legal principles to help guide the jury in reaching an intelligent decision in the case. That is all either side is ever entitled to. See, generally, Hautala v. Cochran, 289 Mich 409; Bathke v. City of Traverse City, 308 Mich 1; Graham v. United Trucking Service, Inc., 327 Mich 694.
“We are so often compelled to repeat this elementary proposition that we are moved to observe that it is probable that few trial judges, however experienced or learned, if given more time for meditation and research, would again give precisely the same jury instructions that they actually gave. Upon further reflection their instructions would doubtless be less halting and redundant, infinitely clearer and more cogent and more on target- — -much like the compelling jury arguments most lawyers make to their bedroom ceilings the night after the trial is over. It follows that the job of an appellate court in appraising jury instructions (usually given by the busy trial judge immediately following the tug and heat of the trial) is not to determine whether we would select his instructions as models of literary excellence and pearls of legal wisdom were we editing a form book on the subject; rather our role is mercifully more limited and our test less severe, namely: Did the instructions as given adequately inform the jury on the applicable law reflecting and reflected by the various evidentiary claims in the particular case? In other words, in the idiom of the day, we simply ask ourselves: Were the instructions understandable and did they give both sides a ‘fair shake’? We must not also demand the subtle reasoning of a Socrates or the gem-like prose of a Walter Pater. Pew jury verdicts anywhere would stand if that were the criterion.
“Trial judges are constantly required to instruct juries, often in complicated cases, with scarcely more pause to meditate than to sip a glass of water — much (dark thought) as though the members of this Court were obliged, say, to dictate in final form their opinions from the bench immediately following oral argument. Their task is unenviable and manifestly neither counsel nor we should impose on the instructions thus given any severer requirements than we ourselves would fairly expect under similar circumstances. Given the adverse and distracting conditions under which most jury instructions must be delivered, the marvel is not that the average jury instructions are as bad as they are but rather that they are as good.
“Thus modestly tested we must conclude that the present instructions fairly pass muster, at the same time reflecting what a pity it is that most of the jury instructions which do find their way into our form books are not the carefully polished pearls alluded to but usually those impromptu shot-from-the-hip ones frequently so lame and inept and so nearly off target that an appeal was felt necessary to determine the issue. Thus it is that some rather questionable pebbles sometimes falsely appear to emerge from our reports branded as pearls to be envied and emulated. This appearance may be dangerous.”
The established rule of law above set forth has been confirmed by the adoption of Court Buie No 37, § 9 (1945), which reads in part as follows:
“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.”
The omission of detailed instructions which, if due request therefor is made, might result in a ruling that such omission constitutes reversible error, will not mean anything on appellate review — the charge otherwise being proper — in view of this rule.
The cases subsequent to the adoption of this rule have held, where no written request was submitted and counsel did not indicate the form in which he thought the jury should be charged, and where the instructions given sufficiently covered the matter, no reversible error existed. Peden v. Carpenter, 352 Mich 604.
This Court has further said it will not reverse the verdict of a jury for an isolated technical error of jury instruction provided the charge taken as a whole fairly and properly advises the jury. Kaminski v. Grand Trunk W. R. Co., 347 Mich 417.
Mr. Justice Black in Gilson v. Bronkhorst, 353 Mich 148, said (pp 160, 161):
“Assignments of error aimed at a doubtful or erroneous small island of an otherwise proper jury charge are consistently approached in this Court. Quoting from Provost v. Brueck, 110 Mich 136, we said in Bouma v. Dubois, 169 Mich 422, 434:
“ ‘Where the charge of the court, taken as a whole, correctly states the law as applicable to the particu lar case; and clearly defines the issue, the fact that sentences are objectionable, when considered independent of the context, does not constitute- reversible error.’
“On at least a score of occasions this Court has since so affirmed. Examples appear in Hayes v. Coleman, 338 Mich 371; Bathke v. City of Traverse City, 308 Mich 1; Stehouwer v. Lewis, 249 Mich 76 (74 ALR 844); Holmes v. Borowski, 233 Mich 407; Hall v. City of Flint, 195 Mich 638; and Sloman v. Credit Guarantee Co., 112 Mich 258. In Max v. City of Detroit, 337 Mich 674, 678, Mr. Justice Butzel, writing for a unanimous Court, found occasion to declare the ruling with vigor and care of citation. And in Eger v. Helmar, 272 Mich 513, 517, we find what well may be said in disposition of defendant’s said question 4:
“ ‘In the instant case, as sometimes happens, certain portions of the charge to the jury when isolated from the general context are somewhat indefinite and possibly inaccurate. But as a whole we think the charge advised the jurors of the law applicable to the case in such a manner as enabled them to make an intelligent and just disposition of the controverted issues.’ ”
See, also, Lober v. Sklar, 357 Mich 166, 171.
In so writing we are not unmindful of the holding in Hicks v. B & B Distributors, Inc., 353 Mich 488, and the cases cited therein, where we held under the rule of Pierson v. Smith, 211 Mich 292, and Hansel v. Hawkins, 326 Mich 177, that failure to give an important element of the law applicable to the facts in the particular case constitutes reversible error even though not requested to so charge.
If the fact in the instant case is that no request to charge was made to the trial court with reference to negligence per se, we think that Justice North, writing for the Court in the case of Dubeau v. Bordeau, 291 Mich 418, properly established the rule with, respect to the law in the instant case, where he said (p 423) :
“We think the claimed error was not prejudicial; and further, failure to give a detailed charge as to proximate cause cannot be held to be a ground for reversal because plaintiff made no request to charge on that phase of the law. Court Rule No 37, § 9 (1933); Moss v. Shreve, 278 Mich 665.”
If the fact is that such a request to charge was made to the trial court, and if we assume contrary to the actual facts in the instant case that the request was not given in the words of the trial judge, then we believe that the rule referred to by Justice Black in Gilson v. Bronkhorst, supra, 160, in paraphrasing Robertson v. Hayes, 261 Mich 200, would apply:
“That if * * * counsel, present at the time, observed the * * * error now pressed upon us, such counsel doubtless would have then called it to the trial judge’s attention for correction. On the other hand, and if counsel did not then notice or comprehend the presently-claimed prejudicial effect thereof, it would appear farfetched to assume that the jury took from the criticized words a controlling-instruction.”
This certainly is true in the instant case where plaintiff’s counsel was asked if he was satisfied with the charge, and he agreed that he was except as to matters with reference to damages.
In order for the plaintiff to recover in this case it was necessary for him to establish the negligence of defendant and, in addition thereto, to show that this negligence of defendant was a proximate cause of the accident. Whether or not he has carried the burden of proof on both of these elements appears to have been a question for the jury. Negligence alone would not establish liability. The negligence must also be a proximate cause of the injury. The trial court charged as follows with reference to this matter:
“One of the statutes of the State of Michigan requires that you drive on your own right hand side of the road, and if you drive over on the wrong side of the road, except when you are passing, and when it is clear so that you can pass, you are violating a State statute, and you are guilty of negligence, and if that negligence was a proximate cause of the injury, then, of course, the defendant would he guilty of negligence, his negligence would be a proximate cause of the injury, and the plaintiff should recover. * * #
“Or if you find that he (referring to defendant) was negligent but that negligence was not a proximate cause of the accident, then you also would bring in a verdict of no cause of action.”
A careful reading of the entire charge indicates that the theories of the respective parties and the law applicable to the case were fairly and adequately given to the jury. It was a jury question to determine negligence, and its causal connection, in view of the condition of the pavement, the rates of speed of the 2 cars as they approached the point of collision, and especially the distance they were apart when defendant got into trouble by slipping off the edge of the pavement into a rut. Conflicts of testimony on these points existed in the instant case and were properly left to the jury to decide.
The plaintiff has had his day in court. There was sufficient factual evidence for the questions to be presented to the jury under a correct charge. More than this, the plaintiff cannot ask. We find no error requiring reversal of the judgment entered.
The judgment is affirmed, with costs to defendant.
Dethmers, C. J., and Carr, Kelly, and Black, JJ., concurred with Kavanagh, J.
See CLS 1956, § 257.634 (Stat Ann 1952 Rev § 9.2334)'.—Re-porter. | [
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] |
Edwards, J.
Three substantial questions are presented by this appeal, all of which pertain to computation of the statutory fee prescribed in relation to certain activities of public utility companies which are regulated by the Michigan public service commission.
The statutory language to be construed is:
“Whenever any stocks, bonds, notes or'other evidences of indebtedness are authorized by the commission to be issued in accordance with any law of this State, the party or parties upon whose application said securities are authorized shall before the issuance or sale of said securities, pay into the treasury of the State of Michigan a sum equal to 1/10 of 1% of the face value of the securities so authorized; the sum so paid not to be less than $50 in any case.” CL 1948, § 460.61 (Stat Ann 1957 Cum Supp § 22.11).
The first question is whether, in computing the statutory fee, an'issue of “convertible debentures” properly requires a fee to be paid both on the “face value” of the debentures and the “face value” of the stock for which the debentures may later be traded.
The second question is whether the statutory term “face value” as applied to the stock issue in this proceeding means the par value described on the face of the certificate.
The third question is whether a certain guaranty agreement entered into between plaintiff and the Power Eeaetor Development Company was a “certificate of indebtedness” within the meaning of the statute, and hence subject to the fee provided.
Both the Michigan public service commission and the circuit judge presiding in the court of claims answered questions 1 and 3 in the affirmative. In relation to question 2, the Michigan public service commission computed the fee on the basis of the conversion value of the stock, and the circuit judge sitting in the court of claims reversed,, holding that “face value” as applied to stock was properly to be interpreted as the “par value” shown on the face thereof.
We affirm the ruling of the court of claims on all 3 questions.
The factual background of the first 2 questions may be quickly described. On July 16,1956, plaintiff petitioned the public service commission for approval of an issue of convertible debentures in an aggregate amount of $59,778,900.- The debentures were to be convertible at any date after October 1, 1958, and before April 1, 1971, into capital stock of the company at the ratio of.3-1/4 shares of stock for each $100 of principal amount of debentures upon surrender and cancellation of the debentures. The conversion price of the stock was fixed at approximately $30, while its par value as proposed to be printed on the face of the certificates was stated as $20.
The application was ¿pproved by the commission, with the statutory fee computed by the commission and paid under protest by plaintiff at a figure of $119,557.80. This fee can be arrived at only by using the face value of the debentures, plus the conversion value of the stock issue, in the computation.
The questions posed are questions of first impression in this Court. We have cited to us as authority 2 attorney general’s opinions from Michigan (OAG, Jan 7, 1920, p 113, and OAG No 2572, June 8, 1956, p 321), the latter of which overruled the former. The appellees rely upon the interpretation contained in OAG No 2572, and upon the language of the fee section of the statute. Appellant relies upon the older opinion of the attorney general, plus a similar interpretation contained in an opinion of the attorney general of the State of New York dated July 24, 1957.
We believe that the debentures issue and the stock issue are 2 separate issues for purposes of the statute under consideration. The debenture is a bond, with a definite and fixed amount of both principal and interest and definite times for payment of both. The bondholders are creditors of the corporation, whose claims must be met prior to any consideration of stockholders’ dividends. The conversion feature does not alter the fact that the debenture is a bond until and unless the bondholder exercises his option.
On the other hand, stock is an indicia of investment, ownership, and control. The common stockholder has no preference, but he does share in the profits of the company. When the added stock contemplated herein is issued, it affects by dilution the rights of every other stockholder.
The language of the statute makes the fee applicable “whenever any stocks, bonds, notes or other evidences of indebtedness are authorized.” (Emphasis supplied.)
Regardless of the effect of the 2 transactions in producing funds for the corporation, the language of the statute requires that each of the 2 issues he authorized and that the fee be paid as to both.
It may well be that the convertible debenture was not contemplated by the legislature when this statute was passed, and that it may be regarded as joining a bond issue and a stock issue so closely into 1 transaction as to warrant special treatment. If so, we believe it to be a matter for legislative attention.
In any event, we plainly are not presented here with a record where only 1 security transaction was involved. This proposed stock issue was not limited just to the redemption of the debentures. Plaintiff’s application for approval of its proposed convertible debentures sought (and received) authorization “to issue and sell at not less than the par value, shares reserved for the purpose of satisfying any conversion rights of said debentures which are not exercised in accordance with the provisions of said debentures and the indenture.”
There is nothing in this record to show to what extent such conversion rights would be likely to be utilized. Nor do we think the public service commission could properly speculate on this. Obviously, both the bond issue and the stock issue required investigation and approval by the regulatory body. On this record, we see no logical reason for failing to apply the fee to both.
We can be more brief about the second question. It simply requires us to say whether the statutory term “face value,” as applied to the stock issue in question, referred to the par value printed on the face of the stock, or to the conversion price as used by the commission. We think the statutory intent is clear, and that “face value” is the par value as printed on the face of the stock. We find no ambiguity and only 1 interpretation appears possible. Big Bear Markets of Michigan, Inc., v. Liquor Control Commission, 345 Mich 569; Watkins v. Atkinson, 2 Mich 151.
As to this issue, appellees’ defense is really a contention that the issue was improperly injected in the trial before the court of claims by belated amendment. The amendment did indeed come during trial. If was certainly not in conflict with the basic position as stated in plaintiff’s petition, nor do we find in the transcript any claim of surprise. In any event,' the trial judge offered defendants-appellees time for study or preparation or production of additional testimony. He allowed the amendment under the broad powers of Michigan Court Rule No 25 (1945). We do not believe he abused the discretion vested in him.
We agree with the trial judge that a credit of $21,536.88 should be allowed appellant, representing the difference between the fee charged on the basis of conversion value of the stock as ■ compared to face value.
The third question requires us to determine whether a certain contract of guaranty signed by plaintiff-appellant is such as to fall within the term “other evidences of indebtedness” as employed by the statute. CL 1948, § 460.61 (Stat Ann 1957 Cum Supp § 22.11).
On October 19, 1956, appellant filed an application for authority to guarantee repayment of certain loans to be made by various banks to the Power Reactor Development Company in a principal amount not to exceed $9,000,000. On November 9th, the commission, by order, found that such guaranty was an evidence of indebtedness under CL 1948, § 460.301 (Stat Ann § 22.101), and that the statutory fee called for by CL 1948, § 460.61, was required to be paid. Thereupon appellant paid $9,000 under protest, .which.it seeks to recover under this count.
The Power Eeactor Development Company is engaged in developing an atomic reactor in the vicinity of Monroe, Michigan. The appellant Detroit Edison is one of the participating companies in the project and intends to make substantial use of the power to be generated there. The contract of guaranty has the obvious purpose of securing construction loans for a power project to be constructed by the Power Eeactor Development Company, which loans Power Eeactor Development may or may not be able to repay. That there is a public interest in such a guaranty by appellant for such a purpose seems beyond dispute. It appears, likewise, beyond dispute that some investigation, at some cost, prior to authorization would be essential to any regulatory body.
We note that appellant apparently felt that the contract was one which required authorization of the commission, for the contract was thus conditioned upon its face and an application for approval was filed voluntarily by appellant. And indeed we believe that CL 1948, § 460.301 (Stat Ann § 22.101), does require such authorization. It is interesting to note that the section requiring appellant to seek authorization employs the very same words as the section assessing the fee:
“Any corporation * * * may issue * * * other evidences of indebtedness * * * provided * * * that there shall have been secured * * * an order authorizing such issue.”
We note that appellant asserts that its application was filed under the general powers of the commission. CL 1948, § 460.551 et seq. (Stat Ann § 22.151 et seq.). Appellant, however, does not point to, nor do we find under this citation, statutory language which specifically required this application as we have noted CL 1948, § 460.301 (Stat Ann § 22.101), does.
The trial judge said in relation to this issue:
“Certainly a contract of guaranty is not a stock, bond or note. A contract of guaranty is in the nature of a suretyship. Payment if at all is in the future and rests on a contingency. Under exhibit 17, the petitioner would be required to pay a certain sum of money not exceeding $9,000,000 under the contract of guaranty only if the Power Reactor Development Company failed to pay on its notes as it was obligated to do. In the opinion of the court, the contract of guaranty clearly falls under the authority of CL 1948, § 460.61 (Stat Ann 1957 Cum Supp § 22.11), and a fee is required to be paid if the contract of guaranty — is an ‘evidence of indebtedness.’ The courts have on occasion defined the word ‘indebtedness.’ Its meaning may be broad or narrow. Indebtedness may comprehend a contingent liability — if used in the broad sense, it does —if used in the strict, it does not (Commissioner of Internal Revenue v. Tennessee Co. [CCA 3], 111 F2d 678). In the opinion of the court, the word ‘indebtedness’ should be "given the broad interpretation. Contingent liability should be included in the definition. The statute was designed for the protection of the public and for the opportunity of investigating and approving the debt transactions of public utilities by the Michigan public service commission. In the opinion of the court, the contract of guaranty is an evidence of indebtedness under CL 1948, §460.61 (Stat Ann 1957 Cum Supp § 22.11), and a fee was properly demanded of the petitioner.”
We believe the court of claims was right. The definition employed was consistent with previous definition of the term “indebtedness” by this Court. In Young v. City of Ann Arbor, 267 Mich 241, 248, 249, the Court employed this language:
“The term ‘indebtedness’ may be said to include obligations of every character whereby a municipality agrees, or is bound, to pay a sum of money to another. Usually one of the incidents of municipal indebtedness is that there is a legal right upon its maturity to coerce payment.”
Further, the definition adopted by the court of claims accords with the purposes of the statutes we construe. The guaranty contract was given to guarantee payment of up to $9,000,000 of loans to Power Reactor Development Company. If that company fails to pay, beyond all doubt appellant will have to. Actually, there appears to be rather more than normal reason for careful investigation of this obligation prior to approval by the regulatory body. We hold the contract is an evidence of indebtedness under both CL 1948, § 460.301 (Stat Ann § 22.101), and CL 1948, §460.61 (Stat Ann 1957 Cum Supp § 22.11), and that the fee was properly charged and paid.
Finally, defendants, through the attorney general, seek to counterclaim on the ground that fees charged appellant in prior transactions involving convertible debentures were computed on the basis of the issuance of only 1 security, and hence were assessed at too low a figure in the commission’s orders of November 1,1948, and December 16,1953.
The simple answer is that these orders were final orders, and no appeals were taken therefrom. Nor have any modifications of the orders been entered. Appellant, on this record, has paid all it has been ordered to pay, and the trial judge was correct in holding that the counterclaim should be dismissed.
The judgment of the court of claims is affirmed. No costs, public questions being involved.
Dethmers, C. J., and Carr, Kelly, and Smith, JJ., concurred.
Black and Kavanagh, JJ., did not sit.
Souris, J., took no part in the decision of this case. | [
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] |
Souris, J.
Section 14 of PA 1909, No 279, as amended (CLS 1956, § 117.14 [Stat Ann 1957 Cum Súpp § 5.2093]), a part of the so-called home-rule act, provides in part:
“Whenever a new city shall be incorporated, the personal property of the township from which it is taken shall be divided and its liabilities assumed between such city and the portion of the township remaining after such incorporation, which incorpo- . ration shall be effective as of the daté of filing the certified copy of the charter as hereinafter provided, in the same • ratio as herein provided .in case of the annexation of a part of a township to a city.”
The question to be decided in this case is whether or not elected township officials’ salaries are “liabilities” within the meaning of the act, as quoted above, •such that,"a new city incorporated froria a portion ' of a township is required to.pay part of the township '.officials’ salaries.after, the date of incorporation of the new city.
Defendant. city of Trenton was incorporated as ! a'' home-rule city from territory'comprising a-major '¿art of <Monguagon township, plaintiff. Subsequent to commencement of this case, the remaining portion of the township became incorporated as the city of Riverview. Appropriate amendment of the pleadings and title of this case followed.
The ratio referred to in the statutory provision quoted above is the same ratio as the assessed valuation of the taxable property in the territory incorporated as a city bears to the assessed valuation of the taxable property in the entire township from which said territory is taken. By stipulation, it was agreed by the parties that the assessed valuation of the taxable property in the defendant city of Trenton comprised 87.62% of the assessed valuation of the taxable property in the entire township prior to defendant’s incorporation. The parties likewise agreed that the personal property of the township to be divided and the liabilities of the township to be assumed by the defendant city and the remaining portion of the township shall be in the ratio of-87-.62% and 12.38%, respectively. Apparently, the parties had no difficulty dividing the personal property of the township and allocating its liabilities, except those items claimed here to be liabilities, in the ratio stipulated. Thus far, but no further, did the parties agree.
The items in dispute are the salaries which .plaintiff township was obliged to pay its supervisor, treasurer, clerk, and 4 trustees on and after July 31, 1957, the date defendant city’s incorporation became effective. Four months prior thereto a complete slate of township officers had been elected to serve 2- and 4-year terms at the same salaries paid to their predecessors. However, upon incorporation of defendant city all township offices, except that of treasurer, became vacated because the incumbents in those offices were residents of the township territory which became the city of Trenton. See CL 1948, §41.103 (Stat Ann §5.152), which requires residence within a township as one of the qualifications for township office. All township offices, except that of treasurer, remained vacant from July 31st until October 8, 1957, when successors were elected at a special township meeting called for that purpose by the county board of supervisors, pursuant to CL 1948, §41.24 (Stat Ann §5.24). Plaintiff township claims that defendant city should be required to assume and pay 87.62% of the salaries for all of such officers from and after July 31st, in the case of the treasurer, and October 8th, in the cases of the other officers, to the end of each officer’s 2- or 4-year term, pursuant to the disputed statutory provision. This suit for declaratory judgment, pursuant to the provisions of CL 1948, § 691.501 (Stat Ann § 27.501), was instituted on December 20,1957, by the township.
Plaintiff’s claim, as it relates to the salaries of its officials other than its treasurer, is without merit. On July 31, 1957, 6 of the 7 township offices were vacant. There were then no incumbents in those 6 township offices to whom plaintiff could be liable for salaries then or in futuro. As a matter of fact, those 6 vacancies were not filled until October 8, 1957, at which time, and only then, did plaintiff incur any obligation which could ever ripen into a liability to pay salaries to the holders of the 6 offices involved. Defendant city’s duty to assume liabilities of plaintiff township from which its incorporated territory was taken is determined as of July 31, 1957, the date of its incorporation, and its duty is limited to partial assumption of those liabilities of the township which then existed. See Township of Dearborn v. City of Dearborn, 308 Mich 284, where this Court so held in an annexation case arising out of another similar provision of the same statute here in dispute.
On October 8,1957, but prior to the special election held on that date, the township electors voted to reduce the salaries to be paid to the 6 officials to be elected (but they did not vote to reduce the incum'bent treasurer’s salary). Plaintiff now claims that the action of its electors in reducing such salaries violated article 16, § 3, of the Constitution of the State of Michigan (1908) and CLS 1956, § 41.95 (Stat Ann 1957 Cum Supp § 5.82). Decision on this claim is unnecessary to disposition of this appeal, in the light of our holding that the salaries of the 6 officials elected in October, 1957, are not subject ■to apportionment between the township and the city.
The treasurer’s salary presents a different problem. The treasurer resided in a portion of the township not incorporated by defendant city and, consequently, remained in office on July 31, 1957. The question hereafter considered is whether ■ salaries of incumbent elected township officials are township liabilities subject-to apportionment within the meaning of the statutory language quoted at the beginning of this opinion.
The trial judge ruled that such salaries are contingent or deferred liabilities not subject to apportionment under the statute. He said: •
“To directly approach the question which appears to be controlling, the court is of the opinion that it is the law of this State that current operating expenses not yet incurred or liquidated or final, are not liabilities which can be apportioned under this statute. By this I mean such items as light, rent, supplies, snow removal, auditing expenses, legal expenses, expenses of regular and special elections, if any, and salaries. Respectable authority is presented holding that these items are not liabilities within the contemplation of this statute, and that they are merely contingent or deferred liabilities, the amount of which cannot be determined now and which may become greater or less with the passing of time and the occurrence of subsequent events. I do not think it is the function of this court to project its jurisdiction into the future and to retain the right indefinitely to determine piecemeal and from time to time, as the occasion may arise, whether or not a contingent liability has become a fixed liability. This would seem an interminable job and would he most disturbing and upsetting to anyone attempting to set up a fiscal policy for either the township or the city. It is fraught with intangibles, with imponderables and any attempt to formulate a financial policy or to make long-range financial plans by either the township or the city, would be seriously hampered by the constant uncertainty arising from the possible impact of contingent and deferred liabilities. With this judicial conclusion the court believes that a decree may he entered leaving many of the debatable items that have been presented, unsolved.”
All of the facts involved herein were stipulated at the trial in the circuit court. Both parties, however, offered testimony of certified public accountants with respect to how such items should be treated, for accounting purposes, in preparing a balance sheet for a township. Basing his opinion upon certain assumptions, which included the assumption that township officers in all events would render services during their ' entire elected term to the township, plaintiff’s accountant testified that under such circumstances the amount of their salaries during the period involved would be treated by accountants as contingent liabilities. In the ordinary situation, however, where rendition of future services by officials is as uncertain as sudden death, resignation, or other disqualification from office, plaintiff’s accountant testified that the amount of the liability could not be evaluated, and, consequently, he would note on the balance sheet that “the assets of the township would be encumbered by some unknown amount,” depending upon contingencies which would be stated. Defendant city’s accountant agreed that such salaries would be contingent liabilities if plain tiff’s accountant’s assumption were valid (that services in all events would.be rendered), but he testified that such contingent liabilities appear properly in balance sheets only as footnote items which state that upon the happening of described events an expense will be incurred. He further testified that salaries of elected officials, for balance sheet purposes, “are never set up as liabilities at the time when the official is elected to his office.”
Fortunately, we need not rely solely upon the testimony offered by the parties’ accountants, for this Court previously has considered the statutory provision here in dispute and previously has ruled that the term “liabilities,” as used in the statute, does include contingent liabilities. In Township of Dearborn v. City of Dearborn, supra, and in Hazel Park Association v. Township of Royal Oak, 317 Mich 607, there were involved special assessment bonds on which the townships incurred obligations (pursuant to statute) to advance money from their general funds to pay such bonds in the event that the special assessment funds were insufficient to pay such bonds and interest when they became due. In the Dearborn Township Case, we said, beginning at page 293:
“A contingent liability to advance funds sufficient to satisfy any past due special assessment bond obligations was imposed upon and assumed by the township on the date the bonds were issued. Such liability continues, under the circumstances of this case, until the bond obligation is satisfied, including •liability on refunding bonds issued in lieu of the special assessment bonds. And this liability must .be shared proportionately by the city, which has annexed part of the township territory after the special assessment bonds were' issued, and the remaining portion of the township. The right of the township to enforce contribution by the city, which subsequent to issuing the bonds annexed part of the township, accrued as soon as it became reasonably certain tbat receipts from the special assessments would be inadequate to satisfy in full the bond obligation. That condition arose in the instant case prior to the commencement of this suit. In effect it is so stipulated by the parties litigant.”
At page 295 of that opinion appears the following:
“While it does not appear in the instant case that the township has actually paid from its general funds the amount in default on the special assessment bonds of districts 1 and 2, nonetheless it does convincingly appear that the township is presently obligated to make such payment. In 1938 it issued general obligation township bonds in refunding outstanding special assessment bonds. And further it appears quite beyond doubt that funds sufficient to meet the default on the special assessment bonds cannot be obtained either from unpaid special assessments already levied or from reassessments. In fact it is so stipulated by counsel. For the purpose of plaintiff’s right to bring the instant suit, the above circumstances are, we think, tantamount to plaintiff township having actually paid the defaulted assessments from its general funds. But for the purpose of covering the contingency of future payment of special assessments or reassessments in either district 1 or 2, and in event defendant city has contributed its proportionate share to the payment of these bonded obligations, the decree to be entered in the instant case may provide that any money subsequently collected on the special assessments or on reassessments in either of these 2 districts by the township shall be shared proportionately by the township and the city.”
In the Royal Oak Township Case, supra, we said the following, at page 625:
“The township’s liability as guarantor cannot be said to arise before the bonds are issued and delivered. It is claimed that liability did not arise until the subsequent happening of the contingency, i.e., defaults and lack of special assessment funds. However, the township’s liability, although contingent, was there continuously from the time of the delivery of the bonds. It is implied in Township of Dearborn v. City of Dearborn, supra, that this liability arises when the bonds are issued.”
Other contingent liability cases arising out of the disputed statute here involved are Township of Royal Oak v. City of Pleasant Ridge, 295 Mich 284, and Township of Royal Oak v. City of Pleasant Ridge, 307 Mich 714.
Both of the foregoing cases likewise concerned bond obligations, but the contingent nature of each obligation, affecting the issue of ultimate liability as well as the amount thereof, is identical with the contingent nature of a township’s obligation to pay salaries to its incumbent elected officials upon their rendition of services after the incorporation of a city within the township. Here, plaintiff’s liability would not become actual or fixed in the event such services were not rendered after July 31, 1957 (as indeed in the case of all elected officials except the township treasurer, such services were not rendered) ; and the amount of the liability would not become known until, and as, the services were actually rendered. Whether we are concerned with bonds or salaries, an obligation exists on the date of annexation or incorporation, as the case may be, by which the township involved might be compelled later to pay its funds in satisfaction of such preexisting obligation. In the cases cited above, this Court has. described such obligations as contingent liabilities, and it has held that they are included within the meaning of the statutory provision quoted at the beginning of this opinion. This Court now holds that a township’s obligation to pay its incumbent elected officials’ salaries is a contingent liability and that sneb obligation is a liability subject to apportionment pursuant to that statutory provision.
At the time of tbe trial judge’s opinion, July 2, 1958, there remained 9 months of the township treasurer’s then current 2-year term of office. He already had served 15 months at the rate of $5,687 per annum, 11 of which months were served from and after July 31, 1957, the date of defendant city’s incorporation. As in the Dearborn Township Case, supra, while it does not axipear in the instant case from the record before us that plaintiff township actually had paid him his salary for the 11 months he had served following July 31, 1957, nevertheless the township was then obligated to make such payment if it had not done so already. For the purpose of plaintiff’s right to relief in this suit, we think the trial court should have found plaintiff entitled to contribution from defendant city in the stipulated ratio for the treasurer’s salary during those 11 months. Further, as was suggested in Township of Royal Oak v. City of Pleasant Ridge, 295 Mich 284, at page 293, we think the decree in the instant case should have reserved jurisdiction to determine the apportionment of plaintiff’s liability for the payment of salary to its treasurer during the 9 months then remaining in his term of office in the event he performed services therefor. His term now having-expired, the decree entered below is hereby reversed and the case remanded to the circuit court for further proceedings therein to determine the extent of the liability actually incurred by plaintiff for the services of its township treasurer from July 31, 1957, to April 1, 1959, and to apportion said liability in accordance herewith.
No costs shall be allowed, a public question being involved.
Dethmers, C. J., and Carr, Kelly, Smith, Black, Edwards, and Kavanagh, JJ., concurred. | [
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Cavanagh, J.
The issue in this case is whether, under the fourth-time habitual-offender statute, MCL 769.12; MSA 28.1084, two of a defendant’s three prior convictions must be counted as only one prior conviction whenever the defendant commits both offenses before being convicted of either, or is sentenced for both offenses on the same day. We hold that the statute does not require that a fourth offender’s three prior convictions, the sentences for those convictions, or the offenses upon which those convictions and sentences are based, occur in any particular sequence. The statute requires only that the fourth offense be preceded by three convictions of felony offenses, and that each of those three predicate felonies arise from separate criminal incidents.
i
The defendant in this case was charged with breaking and entering an occupied dwelling with the intent to commit larceny and with possessing cocaine. Defendant allegedly committed both of these offenses on November 24, 1986. Defendant was also charged with being a fourth offender. The habitual-offender information alleged three prior convictions for breaking and entering, one for which defendant was sentenced June 26, 1986, and two for which he was sentenced December 3, 1985.
Defendant pled guilty of the breaking and entering and fourth-time habitual-offender charges, admitting the three prior convictions alleged in the habitual-offender information. After an unsuccessful motion to withdraw his guilty plea, defendant appealed in the Court of Appeals. In defendant’s supplemental brief he argued, relying upon People v Stoudemire, 429 Mich 262; 414 NW2d 693 (1987), that his habitual-offender conviction should be reduced from a fourth-offender conviction to a third-offender conviction because the two prior convictions for which he was sentenced on the same date should count as only one prior conviction. The Court of Appeals agreed with the defendant that defendant’s two convictions resulted in only one opportunity to reform, and ordered resentencing. We granted the prosecutor’s application for leave to appeal to determine whether "defendant was properly convicted as a fourth-time habitual offender.” 432 Mich 891 (1989).
ii
In Stoudemire, p 278, we held that under the fourth-offender statute, "multiple convictions arising out of a single incident may count as only a single prior conviction . . . .” This holding, we stated, was consistent with the purpose of the statute, which we divined from the history of the statute. We reasoned that in order to be convicted as a fourth offender, a defendant must have been involved previously in three, separate criminal incidents, because_
[t]he Legislature intended that the habitual offender statute’s fourth-felony provision . . . should apply only to a person who had had three opportunities to reform—who had been convicted and sentenced and then subsequently committed another felony for which he was also convicted and sentenced, and then subsequent to the second conviction committed yet another felony, for which he was again convicted and sentenced. Upon this person’s conviction for yet a fourth felony, he would be subject to the habitual offender act’s fourth-felony provision. He would be subject to mandatory life imprisonment because he had three times failed to reform, "because of the apparent persistence in the commission of crime by the person convicted and his indifference to the laws . . . .” [Id., p 271 (quoting People v Palm, 245 Mich 396, 401; 223 NW 67 [1929]). See also Stoudemire, pp 266, 268.]
Since Stoudemire, several panels of the Court of Appeals have applied its reasoning to varying factual scenarios to determine when a defendant’s prior convictions may be counted separately. Some panels have interpreted Stoudemire’s opportunity-to-reform rationale in a limited manner, holding that a defendant rejects an opportunity to reform each time he commits another crime, even if he was not convicted or sentenced for one crime before committing the next, as long as the offenses arose from separate incidents. Others, like the panel below, have adopted the Court’s statements in Stoudemire that in order for a conviction to count as a prior conviction under the statute, each conviction must be for an offense committed after conviction and sentence for a prior offense.
in
The prosecutor in this case asks that we reevaluate our statutory analysis in Stoudemire and reject the conclusions in that case concerning the Legislature’s intent to limit the reach of the fourth-offender provision to defendants whose prior offenses are separated by intervening convictions and sentences. We agree with the prosecutor that our statutory analysis of the habitual offender statute in Stoudemire was flawed. Although we need not disturb the precise holding of that case—that multiple convictions arising out of a single incident may count as only a single prior conviction under the statute—we conclude that a more accurate interpretation of the statute precludes many of the statements made there concerning the intent and purpose of the Legislature.
A
Since 1978, the fourth-offender statute has provided,
If a person has been convicted of 3 or more felonies, attempts to commit felonies, or both, . . . and that person commits a subsequent felony within this state, the person shall be punished upon conviction as follows .... [MCL 769.12; MSA 28.1084.]
Before that, the language was somewhat different:
A person who after having been 3 times convicted ... of felonies or attempts to commit felonies, . . . commits any felony within this state . . . may be sentenced upon conviction of such fourth or subsequent offense to ... . [1949 PA 56; 1929 PA 24; 1927 PA 175.]™
While the original language of the statute clearly requires that the fourth offense be committed after the three prior convictions, and the present language probably requires the same, neither contains any requirement that a fourth offender’s three prior offenses, convictions, or sentences occur in any particular sequence.
The Legislature’s specification that the fourth offense must follow three convictions, combined with its omission of any similar requirement for the second and third offenses, implies that no particular sequence for the first three offenses or convictions was intended. However, recognizing the well-established principle that a literal reading of a statute may be modified if that reading leads to a clear or manifest contradiction of the apparent purpose of the act, or if necessary to correct an absurd and unjust result, we must turn to sources of legislative intent other than the language to determine whether declining to read into the statute a sequentiality requirement for predicate offenses would contradict the Legislature’s purpose in enacting the statute.
B
As in Stoudemire, we find it appropriate to begin our analysis of legislative purpose with the original enactment of 1927. 1927 PA 175 was the culmination of the work of the Commission of Inquiry Into Criminal Procedure. Sections 10, 11, 12, and 13 of chapter IX of the act mandated specific punishment and procedures for prior offenders. In its report to the Legislature, the commission made special mention of these sections, suggesting that they were intended to remedy perceived deficiencies in the former statutes governing repeat offenders:
We also call your attention to sections eleven, twelve, and thirteen of this chapter. These sections deserve your most earnest consideration. It will be observed that section thirteen provides that a person who has four times been convicted of a felony shall be imprisoned for life. It is interesting to note that section 15,613 of the Compiled Laws of 1915, one of the oldest criminal enactments of this State, has provided that a person who has been twice sentenced for the commission of a felony may be sentenced upon third conviction to life imprisonment. We do not find that this statute has been put into operation. We have, therefore, adopted section thirteen, which makes it mandatory to sentence to life imprisonment upon the fourth conviction.[ ]
This passage from the report does not contain any express statement concerning the commission’s intent regarding whether a defendant’s prior convictions, offenses, or sentences must occur in any particular sequence in order for him to be subject to the fourth-offender penalties. However, because the commission regarded the prior repeat-offender statute as ineffectual, an examination of its provisions is instructive.
When any person shall be convicted of any offense, and shall be duly sentenced therefor to confinement in the state prison of this state, for one year or more, and it shall be alleged in the indictment on which such conviction is had, and admitted or proved on the trial, that the convict has before been sentenced to a like punishment by any court in this state, or in any other of the United States, for a period not less than one year, he shall be sentenced to be punished by imprisonment in the state prison not more than seven years, in addition to the punishment prescribed by law for the offense of which he shall then be convicted. [1915 CL 15612. Emphasis added.]
When any such convict shall have been twice before sentenced to imprisonment at hard labor, for a period of not less than one year at each time, by any court in this state, or in any other of the United States, he shall be sentenced to imprisonment at hard labor for life, or for a term of not less than seven years in addition to the punishment prescribed by law for the offense of which he shall then be convicted. [1915 CL 15613. Emphasis added[ ]
The repeat-offender provisions proposed by the commission were substantially different from these earlier provisions in several ways. Most pertinent for our inquiry in this case, the new provisions did not require that the defendant have previously been twice sentenced to prison, for at least a year each time, before the enhanced punishment could be imposed. The 1927 act required only that the person have been "three times convicted” prior to committing the fourth offense. Thus, the new provision literally applied to defendants who had previously been convicted three times before they committed their fourth offense, even if they had not yet been sentenced on any or all of those prior convictions.
The commission’s decision to delete the sentencing requirement, combined with its statements that the overall purpose of the act was to make it tougher for criminals to avoid apprehension, conviction, and adequate punishment, suggest that the commission’s intent was that §§ 10, 11, and 12 apply to a broader class of criminals than they would have applied to had the prior language about prior sentences been retained. This history suggests that the commission did not intend § 12 to apply only to defendants who commit four felonies, each of the last three being committed after a previous sentence, as Stoudemire concludes was the Legislature’s intent. The commission’s report reflects the goal of punishing repeat offenders harshly, but does not particularly support an objective of punishing them only after they have three separate times disregarded the sobering message of a conviction and sentence._
Because the Legislature ultimately adopted these sections of the commission’s proposed code without change, the commission’s views on these issues were presumably shared by the members of the Legislature who adopted its recommendations. See 2A Sands, Sutherland Statutory Construction (4th ed), § 48.09, p 316. Declining to read into the statute a requirement that a defendant’s second offense must follow the conviction and sentence for his first offense, and that his third offense must follow the conviction and sentence for his second offense, certainly does not violate any expressed purpose of the commission or the Legislature.
c
In Stoudemire, as guidance for determining our own Legislature’s intent in adopting §§ 10-13 of chapter IX of 1927 PA 175, we relied upon certain authorities interpreting the intent of the New York Legislature in adopting its "Baumes Laws.” We reasoned, "By borrowing New York’s statute in its entirety, the Legislature indicated that it was motivated by the same purpose that underlay the New York statute.” Stoudemire, p 271.
1
While it is certainly possible that our Legislature adopted identical language for different reasons, the report of the commission bolsters our conclusion in Stoudemire that the 1927 Legislature was aware of the motivations behind the New York law, and that the intent of the New York Legislature in passing similar provisions, and to some extent the views of Senator Baumes, may reflect the purposes of our own Legislature in passing these sections of 1927 PA 175. See 2A Sands, Sutherland Statutory Construction (4th ed), § 51.06, p 510; cf. Evening News Ass’n v City of Troy, 417 Mich 481, 494-495; 339 NW2d 421 (1983). However, regarding the nature of either Senator Baumes’ or the New York Legislature’s intent, we must depart from our prior conclusions in Stoudemire.
2
The language at issue in this case, in the New York statute, and our own statute—having been three times convicted—had been part of New York law since 1907. Neither New York’s 1907 law nor the law as amended in 1926 contained language concerning the sequence of the first three convic tions, and sequentiality of the convictions was not litigated prior to the 1926 amendment. People v Morse, 62 NY2d 205; 476 NYS2d 505; 465 NE2d 12 (1984). So, at the time our Legislature adopted the New York law, there were no New York decisions interpreting whether this language required that a former offender’s prior convictions be sequential.
Furthermore, even though their decisions shed little light on what our Legislature intended when it enacted 1927 PA 175, New York courts eventually interpreted the language at issue in this case not to require that the prior offenses or convictions occur in any particular sequence. All except one held that the three prior convictions need not be sequential. Morse, supra, pp 219-220. In Stoudemire, we relied erroneously on the only New York decision that held that a fourth offender’s second and third offenses must each follow conviction and sentence on the earlier offense. This decision was not only clearly at odds with the weight of authority in New York and unavailable when our Legislature adopted the pertinent language, it relied on three cases that did not address the same issue.
In Stoudemire, we quoted statements of Senator Baumes and relied on them for our conclusion that the New York Legislature intended the act to punish only those "who had been convicted and sentenced and then subsequently committed another felony for which he was also convicted and sentenced, and then subsequent to the second conviction committed yet another felony, for which he was again convicted and sentenced.” Stoudemire, p 271. However, even assuming that our Legislature or the commission was exposed to the quoted statements or similar ones by Senator Baumes, those comments do not establish Senator Baumes’ intent on the issue of the sequentiality of prior convictions.
The quoted portion suggests only that Senator Baumes considered that the fourth-offender provision was directed at a defendant who had been previously convicted three times and committed his fourth offense after serving his sentences and after he had been given "a chance to watch his step.” It suggests nothing about whether he or other New York legislators in 1907 or 1926 intended that the second offense occur after sentenc ing for the first offense and the third offense occur after sentencing for the second offense.
Not only are Mr. Baumes’ views ambiguous on sequentiality of a fourth offender’s three prior convictions, his suggestion that the fourth offense must follow a completed sentence conflicts with the language of 1927 PA 175, which literally requires only that the commission of the fourth offense follow three prior "convictions,” not sentences. The language of "conviction” replaced the language of our earlier statute which expressly required that the offender have previously been not only convicted but sentenced. See part iii(b).
Finally, we concluded in Stoudemire that the New York Legislature endorsed the sequentiality theory for prior offenses by amending the statute in 1936 to prevent the separate counting of two or more crimes consolidated for charging or trial purposes. However, that conclusion is questionable, since it is contrary to New York’s own courts’ interpretation of that amendment. As the court stated in People v Schultz, 23 Misc 2d 620, 625; 198 NYS2d 814 (1960), aff’d 15 AD2d 948; 226 NYS2d 680 (1962), app dis 11 NY2d 1058 (1962), cert den 371 US 866 (1962),
Some habitual offender statutes of other States require that each succeeding conviction to be counted must be subsequent to a previous conviction both in time of commission and in time of conviction. . . . This eliminates "same time” convictions altogether. This is not the law in this State. The only exception to our general policy is the one specified in the consolidation clauses adopted in 1936.[ ] [Emphasis added.]_
In contrast to New York’s history, our Legislature has never adopted any provision barring separate counting of multiple convictions for offenses consolidated for charging or trial, despite the Legislature’s revisions of the statute in 1949, 1978, and 1988. See n 3 and 1988 PA 90.
In sum, a requirement that a fourth offender’s three prior offenses be separated by intervening convictions and sentences need not be read into' the language of our statute in order to accommodate any legislative purpose gleaned from New York law. Accord Castle v Gladden, 201 Or 353, 369-370; 270 P2d 675 (1954) (relying on New York law to interpret identical language, finding no sequentiality requirement).
D
Stoudemire’s reliance on our own precedents as authority for a legislative purpose to limit the timing of prior convictions was misplaced as well. The statement we quoted from Palm, supra, p 401 in Stoudemire, p 270, is neutral regarding whether a fourth offender’s prior offenses must be separated by intervening convictions. It states that there must be " 'repeated commissions’ ” of felonies, and that the person convicted must demonstrate " 'persistence in the commission of crime’ ” and " 'indifference to the laws ....’” Both of these attributes are demonstrated by a person who commits three separate felonies, is convicted and sentenced for them, and then commits a fourth offense, as well as by a person who commits one offense, is convicted and sentenced, commits another offense, is convicted and sentenced, commits a third offense, is convicted, then commits a fourth offense.
The Palm Court stated that the statute "evidence^] a desire on the part of the people of the State to protect themselves from the acts of habitual violators of law.” It reasoned that repeat offenders "are a menace to society, unfit for liberty, and should be deprived thereof.” Id., p 401. These statements describe a legislative purpose to punish repeat offenders harshly, regardless of whether they committed each of their offenses after a conviction and sentence.
Also, for the reasons stated by Justice Archer in his dissent in Stoudemire, our reliance on People v Podsiad, 295 Mich 541; 295 NW 257 (1940), and People v Lowenstein, 309 Mich 94; 14 NW2d 794 (1944), was misplaced. People v Sawyer, 410 Mich 531; 302 NW2d 534 (1981), like Podsiad and Lowenstein, stands for the principle that an enhanced penalty for a second offense may.be imposed only when a defendant commits the second offense after conviction of his first offense. That is not the question in this case, where the statute already requires that the commission of defendant’s fourth offense follow the convictions of his prior offenses. Here, we are concerned only with whether the Legislature intended that those prior offenses and convictions be sequential.
Not only is the dicta in Stoudemire an unneces sarily broad reading of Palm, Podsiad, Lowenstein, and Sawyer, Stoudemire’s statements that the second, third, and fourth offenses committed by an habitual fourth offender must each follow a sentence for a prior offense conflict with our decision in People v Funk, 321 Mich 617; 33 NW2d 95 (1948). In Funk, we rejected a defendant’s contention that a conviction for which no sentence was imposed could not be counted as a prior offense under the fourth-offender provision and held:
The statute does not make imposition of sentence upon the previous convictions a prerequisite to the enhancement of punishment upon the fourth conviction. The conviction is the finding of guilt. Sentence is not an element of the conviction but rather a declaration of its consequences. [Id., p 621. Emphasis added. See also People v Hatt, 384 Mich 302; 181 NW2d 912 (1970).]
Like the statute’s legislative history, the decisions of this Court preceding Stoudemire fail to demonstrate a legislative purpose that would be contradicted by declining to read into the statute a requirement that the first, second, and third offenses be separated by intervening convictions or sentences.
E
In Stoudemire we also examined cases from other jurisdictions interpreting statutes similar to our own fourth-offender provision to determine what our Legislature had in mind when it enacted what is now MCL 769.12; MSA 28.1084. To the extent that statements in Stoudemire suggest that other jurisdictions support the conclusion that our Legislature intended that a fourth offender’s prior offenses be separated by intervening convictions, we reject those statements.
First, other jurisdictions’ interpretations of similar, or even identical, language, is of only limited value in determining what our own Legislature intended, absent circumstances which suggest our Legislature considered these statutes or the decisions interpreting them when it enacted or amended the fourth-offender provision. See 2A Sands, Sutherland Statutory Construction (4th ed), § 51.06, p 510.
More important, the difference of opinion on the question in this case is much more balanced than that on the question examined in Stoudemire. As we noted in Stoudemire, almost every jurisdiction with similar statutory language has interpreted that language and its legislative history to require that predicate offenses arise from separate transactions. However, the same weight of authority does not support Stoudemire’s reasoning that the Legislature intended to apply the fourth-offender statute only to defendants whose predicate offenses are separated by intervening convictions and sentences.
For example, several of those jurisdictions specifically relied upon in our opinion in Stoudemire do not support defendant’s claim in this case. Nevada has held that its statute, containing the phrase "previously been three times convicted” "does not require that the convictions and commissions of prior offenses occur in any particular sequence.” Hawaii adopted the same rule prohibiting the separate counting of convictions imposed for related offenses while allowing the separate counting of simultaneously entered convictions for separate offenses. In addition, every United States Court of Appeals that has examined this issue has rejected the claim that predicate offenses under the federal habitual offender statute must be separated by intervening convictions or sentences, despite their equally unanimous agreement that the same statute prohibits separate counting of multiple convictions for offenses arising from the same incident.
Among the states that enacted laws with wording like that in our statute which does not specify whether a third or fourth offender’s prior crimes must be separated by intervening convictions or sentences, there is a split on this question. Some courts have held that their Legislatures intended that the sequentiality requirement be read into the statute, others have held that the same language, combined with legislative history, evidenced no such intent or purpose.
These decisions illustrate that the policy concerns that our Legislature might have considered before adopting the 1927 act were not so one sided that we must now conclude it meant something it did not say. In defendant’s favor is the view expressed in State v Carlson, 560 P2d 26, 30 (Alas, 1977):
[W]hen a convicted criminal has not taken advantage of the opportunity to reform and subsequently commits another crime, he may be considered a worse offender than one with no previous convictions. It is then reasonable to subject him to harsher sanctions. However, where . . . two convictions occur on the same day, the opportunity for reformation is afforded to him only once, not twice.
One cannot refute the argument that a defendant who is proven to have ignored three, separate, postconviction opportunities to reform is "reasonably” deemed a "worse” offender, and more deserving of the harsh penalties in the habitual offender statute, than a defendant who is shown to have ignored only one postconviction opportunity to reform, even if both defendants have the same total number of convictions. But this argument certainly does not preclude a Legislature from deciding that the latter type of criminal is also worthy of the fourth-offender penalties. Just because a particular statutory scheme is more favorable to defendants, does not require a Legislature to choose it. See Gimmy v People, 645 P2d 262, 265-267 (Colo, 1982); United States v Balascsak, 873 F2d 673, 687 (CA 3, 1989) (Greenberg, J., dissenting). Also, our Legislature may very well have considered a sequentiality requirement unwise, given a defendant’s ability to elude separate prosecutions for separate crimes and the advantages of resolving multiple charges at one plea or sentencing proceeding.
Without belaboring further the reasoning of the conflicting decisions from other jurisdictions, suffice it to say that they do not persuade us that we must give effect to a requirement concerning a fourth offender’s prior convictions under our statute that does not appear in its language.
IV
Although we conclude that the legislative purpose behind the fourth-offender statute does not require that we read into the statute a requirement that a defendant’s first, second, and third offenses be separated by intervening convictions or sentences, we believe there is sufficient indicia of legislative intent to support the narrow holding in Stoudemire that a defendant’s prior offenses must arise from separate incidents. Therefore, although we no longer rely on much of the reasoning in Stoudemire, we do not overrule its holding.
The legislative history of the statute suggests that it was directed at the "persistent” or "repeat” offender. See parts iii(b), (c), and (d). A commonsense interpretation of these phrases is that the Legislature did not have in mind the person who had only one criminal episode in which he managed to commit several different crimes. Instead, "repeat” suggests some time interval between crimes, and "persistent” suggests a criminal who continues in his criminal pursuits after these intervals. Neither of these concepts may easily be reconciled with an interpretation of the statute which would allow a court to impose fourth-offender penalties on a defendant whose three prior convictions arose out of the same criminal incident.
We need not take on the task of defining the scope of a criminal "transaction,” "incident,” or "episode” for purposes of the fourth-offender statute in this case, except to note that because defendant’s two breaking and entering charges from June of 1985 were separated by several days and occurred at different locations, they were properly counted separately. Because we conclude that even under Stoudemire’s Same-incident test this defendant was properly convicted as a fourth offender, we need not reach whether Stoudemire is to be applied retroactively, a question raised by the prosecutor in this case.
v
The language of the fourth-offender statute contains no requirement that a fourth offender’s three prior convictions must be for three offenses separated by intervening convictions or sentences. We find no legislative purpose or policy that is clearly contradicted by failing to read such a requirement into the statute’s language, nor does this plain reading of the statute generate absurd or unjust results. To the extent that some of the reasoning in Stoudemire conflicts with our decision in this case, it is modified. Because the defendant in this case had previously been convicted of three felonies when he committed his fourth offense, each of those three prior felonies having arisen from separate criminal incidents, he was properly convicted and punished as a fourth offender. We reverse the judgment of the Court of Appeals and reinstate defendant’s sentence.
Riley, C.J., and Brickley and Griffin, JJ., concurred with Cavanagh, J.
In Ms application for leave to appeal, the prosecutor alleged that defendant committed the earliest breaking and entering on June 8, 1985, and pled guilty of that crime on August 20, 1985, that he committed the next breaking and entering on June 13, 1985, and pled guilty on November 20, 1985, and that he committed the third breaking and entering on May 15, 1986. Defendant does not dispute these allegations except to suggest that not only was he sentenced, but he was convicted, of the two earlier breaking and entering charges on the same day, December 3, 1985. The parties do not dispute that defendant committed two of his three prior offenses before he was convicted of either.
Although not expressly solicited by our grant order, arguments concerning the continuing validity of the Stoudemire rationale have been offered by both parties.
The amendments of 1929 and 1949 changed only the penalties. The Legislature’s decisions to be more lenient with regard to repeat offenders suggest no particular intent to alter either class of persons to whom these penalties apply or the legislative purpose expressed in the original 1927 statute. See Stoudemire, p 278.
See Stoudemire, pp 267, 281; 2A Sands, Sutherland Statutory Construction (4th ed), § 47.38.
1927 Journal of the House 642 (Governor’s message to the members of the Legislature regarding HB 80). See also Waite, What is being done about crime, 6 Mich St BJ 100, 102 (Jan, 1927); Fead, "Presidential Address—Judges’ Association," 7 Mich St B J 39 (Dec, 1927).
See HB 80, pp 88-91. As proposed, the sections were numbered 11, 12, 13, and 14.
State of Michigan, Report of the Commission of Inquiry Into Criminal Procedure (1927), p 15 (available from the State of Michigan Law Library; hereinafter "Report”).
The language of these sections had remained the same, without amendment, since 1846. See 1846 RS, ch 161, §§ 12,13.
In People v Palm, supra, p 401, we observed, "[t]he mandatory provision” of the 1927 law was its "chief additional feature.” The new sections did limit sentencing discretion. But they also increased the penalties for all repeat offenders and added an additional tier of punishment for fourth offenders. Another significant change was the procedural change contained in §§ 12 and 13. The 1927 act provided that in order for a person to be punished under the new provisions, he need not have been indicted and convicted as a previous offender, but need only have been given the procedural protections specified in § 13. 1927 PA 175, ch IX, § 12. Section 13 allowed the prosecutor to file information after conviction or sentence on the last offense accusing the defendant of the prior convictions, an option unavailable under the prior statute. The prior law required that the prior offense or offenses be alleged in the indictment and admitted or proven at trial. See People v Campbell, 173 Mich 381; 139 NW 24 (1912).
The earlier statute would not have permitted this. See People v Ellsworth, 68 Mich 496; 36 NW 236 (1888).
Report, n 7 supra, pp 4-7.
The commission stated at page 4 of its report that it
investigated with some particularity the work done in the State[ ] of New York .... The State of New York has up to the present time appointed two Commissions, both headed by Honorable Caleb H. Baumes, of Newburgh, an able attorney with long legislative experience. This Committee has done much in the way of securing data and in recommending important changes to the New York Legislature, some of which have been adopted. Your Commission is indebted to Mr. Baumes for valuable help and suggestions.
Also, in its discussion of the pertinent sections, the commission noted that it had modified the Baumes Laws of New York:
We have also provided increased penalties for second and third convictions and a prohibition against parole, in such cases before the expiration of the period recommended by the sentencing judge without the approval of such judge or his successors. We believe this to be an improvement over the so-called Baumes law of New York. [Report, n 7 supra, p 15.]
As we observed in Stoudemire, the only substantive difference between § 12 of our 1927 act and the same New York provision was the sentence regarding parole eligibility. The commission’s comments suggest that it carefully considered the language of New York’s provisions and concluded that nothing else needed modification.
The 1926 amendment expressly excluded any requirement that prior convictions be alleged in the indictment or proven at trial, and added a provision requiring the imposition of fourth-offender penalties upon a prisoner already sentenced if previously undiscovered convictions later became known. See People v Morse, 62 NY2d 205, 219-220; 476 NYS2d 505; 465 NE2d 12 (1984).
See People ex rel Bravata v Morhous, 186 Misc 893, 896; 63 NYS2d 451 (1946) ("I can find no justification for reading into the statute a legislative intent that, in substance, one is not to be treated as an habitual criminal unless the repeated offenses of which he has been convicted occurred after the serving of a sentence and the lapse of a period of time between convictions and sentencings to meditate upon the advantages or disadvantages of a further life of crime”), aff’d 273 AD 929; 77 NYS2d 451 (1948); Terwilliger v Turk, 156 Misc 246, 248; 281 NYS 527 (1935) ("To make a defendant a fourth offender, under section 1942, the order of the commission and conviction of the first three offenses is immaterial. All that is necessary is that the three convictions precede the commission of the fourth offense. The section says so.”). Accord People ex rel Reynolds v Morhous, 268 AD 843; 50 NYS2d 272 (1944); People ex rel Terwilliger v Brophy, 256 AD 894; 9 NYS2d 25 (1939); Terwilliger v Eaton, 164 Misc 776; 299 NYS 351 (1937); People ex rel Ploiser v Warden of Auburn State Prison, 193 Misc 596; 84 NYS2d 43 (1948), aff’d 274 AD 1086; 86 NYS2d 112 (1949); People v Taylor, 13 NY2d 675; 241 NYS2d 166; 191 NE2d 670 (1963), aff’d 16 AD2d 944; 229 NYS2d 862 (1962); People v Freggans, 79 Misc 2d 144; 359 NYS2d 635 (1974).
People v Spellman, 136 Misc 25; 242 NYS 68 (1930).
People v Bergman, 176 AD 318; 162 NYS 443 (1916), and People ex rel Gaczewski v Jennings, 223 AD 78; 228 NYS 373 (1928), both concerned New York’s second offender statute which required that a defendant’s second offense follow his first conviction. People v Schaller, 224 AD 3; 229 NYS 492 (1928), concerned only whether a defendant’s two pleas could be counted as prior convictions at all when neither was followed by judgment or sentence.
I must speak to you a moment about the Fourth Felony Offender Act, the one that has received more discussion and criticism than any other of the twenty so-called Baumes laws, the act that requires a judge, if a man is convicted the fourth time of a felony, which means a serious crime, he must send him to state’s prison for life.
The theory of the Fourth Offender Act is not punishment at all, but it is protection to the public. The man who has been convicted once, twice, three times, sentenced and served his time and come out and resumed operations again has proven to you and to me that he cannot learn his lesson. He is incurable.
He is non-reformable. And either he cannot or he will not adjust himself to the fixed and settled rules and regulations of society and civilization. And it matters not whether it is because he cannot or because he will not—the result is just the same. That is to say, he is anti-social. He is a habitual criminal, a menace to society, and as such should be segregated from society for the good of society and perhaps for his own good as well.
That is one thing I wish to make clear to you. It is not cruelty; it is not torture; it is not with the idea of punishing this man any more. But he is not a safe man to have at large in the community where you and I live. It is dangerous to have him loose. When this law was passed they said to us, "You will fill the prisons to overflowing if you pass that.” Well, as a matter of fact, the prisons of New York were filled to overflowing before we passed that law. But I do not believe it. Leave these laws just as they are on the statute books for five years, and I am firmly of opinion that for every prison cell you fill with a life termer you will empty three.
Again on the subject of the Fourth Offender Act, we say it is playing fair with the criminal to write plainly in the statute books, if he has already been convicted of three serious crimes, what we call felonies in the law, and is again convicted, that there is no alternative to the court but to send him to prison for life; so that we give him a chance to watch his step; and I say that is in the interest of fair play to the criminal himself. [Address by Caleb H. Baumes, 1927 Am Bar Ass’n, Report 511-529 (reprinted in Johnsen, VI The Reference Shelf, The Baumes Law 95, 99-100 [New York: HW Wilson Co (1929)]). Emphasis added.]
This assumption is speculative. The quoted comments were published sometime in 1927. The commission’s report to the Legislature was delivered by February 8, 1927, the date HB 80 was introduced. As stated in 2A Sands, Sutherland Statutory Construction (4th ed), § 48.12, p 327 (emphasis added):
There is not necessarily a correlation between the understanding and intent of a draftsman and the understanding and intent of the legislature. There is reason to invoke an exception to the general rule and consider the draftsman’s views if those views were clearly communicated to the legislature and there is reason to believe that a legislator’s understanding of the bill was influenced.
See also People v Gorney, 203 Misc 512, 520-521; 103 NYS2d 75 (1951) (Had the Legislature intended to reject the result reached by the weight of authority in New York courts that predicate offenses need not be separated by intervening convictions, the language of the 1936 amendment could have otherwise been qualified); People ex rel Ploiser v Warden of Auburn State Prison, n 14 supra, p 598.
The Palm Court’s quotation of a passage from 8 RCL does not compel a different conclusion. Even if the passage, " 'it does no violence to any constitutional guaranty for the State to rid itself of depravity when its efforts to reform have failed,’ ” reflected our Legislature’s intent, the statement is ambiguous on the precise question presented in this case. Id., p 401. First, the statement is directed at why such statutes are constitutional, not who is included under the provisions of these statutes. Second, even if the statement describes the Palm Court’s conclusion about who may be penalized under our fourth-offender provision, it is consistent with imposing that provision’s penalties upon defendants who persist in committing felonies after being convicted three times, sequentially or not.
Some of the jurisdictions cited as support in Stoudemire have statutes containing language not present in our own statute that supports the sequentiality theory. See, e.g., State v Ellis, 214 Neb 172, 172-173; 333 NW2d 391 (1983) (" 'Whoever has been twice convicted of crime, sentenced and committed to prison ....’” Emphasis added.); State v Tillman, 228 NW2d 38 (Iowa, 1975).
Carr v State, 96 Nev 936, 939; 620 P2d 869 (1980).
State v Rodrigues, 68 Hawaii 124, 132-133; 706 P2d 1293 (1985).
See United States v Gillies, 851 F2d 492 (CA 1, 1988), cert den 488 US 857 (1988); United States v Towne, 870 F2d 880 (CA 2, 1989), cert den 490 US 1101 (1989); United States v Schoolcraft, 879 F2d 64 (CA 3, 1988), cert den 493 US 995 (1989); United States v Herbert, 860 F2d 620 (CA 5, 1988), cert den 490 US 1070 (1989); United States v Schieman, 894 F2d 909 (CA 7, 1990); United States v Rush, 840 F2d 580 (CA 8, 1988), cert den 487 US 1238 (1988); United States v Wicks, 833 F2d 192 (CA 9, 1987), cert den 488 US 831 (1988); United States v Harden, 846 F2d 1229 (CA 9, 1988), cert den 488 US 910 (1988); United States v Greene, 810 F2d 999 (CA 11, 1986).
Some of the reasons for this interpretation were explained in the dissenting opinion in the Third Circuit’s en banc opinion in United States v Balascsak, 873 F2d 673, 687 (CA 3, 1989) (Greenberg, J., dissenting), reasoning later approved in Schoolerañ, supra, p 73, n 4. The dissent explained that characterizations of habitual offenders in the legislative history of the statute as "career criminals,” "three-time losers,” and "repeat offenders,” "are as equally applicable to those who commit three crimes without any intervening convictions as to those who go through the judicial and penal systems between crimes.” The dissent opined that under the contrary view, "the serial felon who is repeatedly arrested, but whose prosecution is delayed, will avoid the enhancement provision.”
The federal statute was recently amended to require that a defendant’s predicate offenses be " 'committed on occasions different from one another,’ ” but did not add any requirement that intervening efforts at rehabilitation separate each prior conviction. See Balascsak, supra, p 688 (Greenberg, J., dissenting).
State v Carlson, 560 P2d 26 (Alas, 1977); Hall v State, 473 A2d 352 (Del, 1984); State v Lohrbach, 217 Kan 588; 538 P2d 678 (1975); Cobb v Commonwealth, 267 Ky 176; 101 SW2d 418 (1936); State v Linham, 93 NM 307; 600 P2d 253 (1979), cert den 444 US 846 (1979); Dye v Skeen, 135 W Va 90; 62 SE2d 681 (1950); Joyner v State, 158 Fla 806; 30 So 2d 304 (1947); State v Rinier, 93 Wash 2d 309; 609 P2d 1358 (1980). See also Nunn v State, 133 Tex Crim App 266; 110 SW2d 71 (1937).
Carr v State, n 22 supra; Castle v Gladden, supra; Watson v State, 392 So 2d 1274 (Ala App, 1980); State v Williams, 226 La 862; 77 So 2d 515 (1955); State v Angelucci, 137 Vt 272; 405 A2d 33 (1979); State v Brandt, 110 Idaho 341; 715 P2d 1011 (1986); Cox v State, 255 Ark 204; 499 SW2d 630 (1973); State ex rel Ves v Bomar, 213 Term 487; 376 SW2d 446 (1964); Smith v State, 644 P2d 106 (Okla Crim App, 1982). See also Gimmy v People, 645 P2d 262 (Colo, 1982); People v Braswell, 103 Cal App 399; 284 P 709 (1930); State v Montague, 671 P2d 187 (Utah, 1983).
The question whether more closely related crimes would qualify as separate incidents or episodes must await later case development. | [
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Cavanagh, J.
We granted leave in these consolidated cases to decide the constitutionality of 1987 PA 28, §354(17X20), MCL 418.354(17X20); MSA 17.237(354)(17)-(20). This statute prohibits the coordination of workers’ compensation benefits for employees who were injured before the eifective date of 1981 PA 203. It also requires the repayment plus interest of all benefits withheld as a result of coordinating benefits between 1982 and 1987 from disabled employees whose injury dates were before 1982. We hold that the amendments of the Workers’ Disability Compensation Act contained in 1987 PA 28, § 354(17)-(20) are constitutional exercises of legislative power retroactively modifying benefit levels for a legitimate purpose furthered by ra tional means. We also hold that the statute does not abrogate any vested rights of the employers. The statute may validly be applied to all compensation liabilities within its terms except those which have been reduced to final judgment before its enactment.
FACTS AND PROCEDURAL HISTORY
The plaintiffs were injured before 1981. In 1981, the Legislature enacted 1981 PA 203 which included the coordination of benefits provision of § 354, MCL 418.354; MSA 17.237(354). This section allowed coordination of workers’ compensation benefits with employer-funded pension plan payments. This statute was part of a legislative reform package involving a series of related amendments of the workers’ compensation statute. The coordination provisions were an essential component of a compromise plan that restructured benefits payable to disabled workers. The resources saved as a result of this coordination were reallocated by the statute to increase benefit levels generally, from two-thirds of the average weekly wage to eighty percent of after-tax wages, effective for injuries occurring after January 1, 1982.
The plaintiffs were subjected to these coordination provisions even though the statute was silent regarding its application to claims resulting from injuries occurring before its 1982 effective date. On September 28, 1983, General Motors Corporation informed plaintiff Romein that he had been overpaid $75.03 per week from January 1, 1982, because of the corporation’s failure to coordinate benefits under 1981 PA 203, § 354, as of its effective date. Thus, the corporation began to deduct the amount of this "overpayment” of $3,913.57 from compensation benefits as they became due and payable. The corporation also began coordinating future benefit payments by deducting pension and social security benefits from the workers’ compensation payments due, resulting in a thirty-five percent reduction of benefits actually paid. This resulted in a reduction of $132 a week. His total benefits were reduced from $19,377.80 to $12,513.80 per year. Plaintiff Gonzalez experienced an even more dramatic reduction in his workers’ compensation benefits. The Ford Motor Company informed Gonzalez that it would begin coordination of his benefits in accordance with § 354 resulting in the withholding of his entire $176 weekly payment beginning March 31, 1982.
Between January 1, 1982, and October 7, 1985, the legality of coordination of benefits for injuries which occurred before the effective date of 1981 PA 203, § 354, was in doubt. The Legislature expressed its view that the initial, lower court decisions permitting application of § 354 coordination rights only to claims arising from injuries occurring after the effective date of § 354 were correct.
The defendants’ efforts to coordinate plaintiffs’ benefits under § 354 received judicial acceptance in 1985 when this Court reversed the lower court in Chambers v General Motors Corp, 422 Mich 636; 375 NW2d 715 (1985). The Court applied principles of statutory interpretation to hold that § 354 permitted coordination of benefits regardless of the date of injury since the Legislature did not state an intent to apply the provision only to benefits paid to employees whose injuries occurred after its effective date.
Thereafter, the Legislature enacted 1987 PA 28 which clearly indicated that the coordination of benefits provision of 1981 PA 203 was not intended to reduce benefits for injuries which occurred before the effective date of the 1981 statute. This statute retroactively amended § 354 and prevented any coordination of benefits for claims arising from injuries which occurred before March 31, 1982.
The first provision of 1987 PA 28 states that it is the Legislature’s intent to prohibit the coordination of benefits for pre-March 31, 1982, injuries. Another provision of the act requires that any setoffs which have been made by employers between March 31, 1982, and May 14, 1987, be refunded to employees, with interest. Thus, any benefits that were reduced under the coordination provisions of § 354, are deemed by statute to have been "underpayments” of workers’ compensation benefits and must be refunded within sixty days with interest. In addition, if the employee had repaid money to the employer for benefits received that the employer alleged should have been coordinated, 1987 PA 28 requires the employer to reimburse the employee, with interest, within sixty days.
The issue before the Court is whether the Legislature has violated the defendants’ constitutional rights under the Due Process or Contract Clauses of the state and federal constitutions by retroactively altering the level of benefits due and payable prior to the amendment. We must also decide whether this retroactive alteration of benefits violates the Separation of Powers and One Court of Justice Clauses of the Michigan Constitution.
i
The defendants contend that 1987 PA 28, § 354(17)-(20) violates the Due Process Clauses of the United States and Michigan Constitutions by retroactively imposing liability for additional workers’ compensation benefits for past compensable periods. They contend that they relied on the coordination provisions of § 354 during the period between its effective date of March 31, 1982, and the amendment date of May 14, 1987, and that this reliance gives them a vested right to have their liability for those periods determined by the law then in effect.
The defendants argue that 1987 PA 28 is "purely retroactive” and unconstitutionally impairs rights under executed contracts of employment.
The defendants urge that this statute is "purely retroactive” because it not only applies to injuries arising before the effective date of the act, but also modifies the employer’s liability for a preenactment compensable period. Thus, this statute is different from the one upheld in Chambers.
We hold that the challenged statute satisfies the rational relationship test and does not abrogate any vested rights of the employers. The statute, therefore, does not violate the Due Process Clauses.
A
A rational basis standard of review governs this Court’s scrutiny of the legitimacy of social and economic legislation.
"It is by now well established that legislative Acts adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality, and that the burden is on one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way. See, e.g., Ferguson v Skrupa, 372 US 726 [83 S Ct 1028; 10 L Ed 2d 93] (1963); Williamson v Lee Optical Co, 348 US 483, 487-488 [75 S Ct 461; 99 L Ed 563] (1955).” [Pension Benefit Guaranty Corp v R A Gray & Co, 467 US 717, 729; 104 S Ct 2709; 81 L Ed 2d 601 (1984).]
The rational basis test has been applied to the retroactive portions as well as to prospective portions of statutes modifying workers’ compensation benefit levels. Pension Beneñt Guaranty Corp, supra.
To apply a stricter standard of review to a workers’ compensation statute simply because it operates retroactively would put the judiciary in the business of "allocating] the interlocking economic rights and duties of employers and employees upon workmen’s compensation principles” although this is a task within the province of the Legislature. Usery v Turner Elkhorn Mining Co, 428 US 1, 15; 96 S Ct 2882; 49 L Ed 2d 752 (1976), citing New York Central R Co v White, 243 US 188; 37 S Ct 247; 61 L Ed 667 (1917).
B
A workers’ compensation statute will not be deemed unconstitutional simply because it imposes "a new duty or liability based on past acts,” Usery, supra at 16. The Usery decision upheld the constitutionality of title IV of the Federal Coal Mine Health and Safety Act of 1969 against a Due Process Clause challenge by applying only minimal judicial scrutiny to its retroactive provisions. The statute retroactively imposed liability on employers for injuries which occurred years before its enactment. The law was retroactive in two respects. First, it altered the legal status of completed transactions by requiring the compensation of employees who left the industry before the effective date of the act. Second, it imposed liability on coal mine owners for injuries suffered before the date of the new statute.
The Court in Usery, supra at 16-17, cautioned that: "It does not follow, however, that what Con gress can legislate prospectively it can legislate retrospectively. The retrospective aspects of legislation, as well as the prospective aspects, must meet the test of due process, and the justifications for the latter may not suffice for the former.” The justification for retrospective legislation must take into account the possibilities that the parties acted in reliance on current law and that they may have altered their conduct to reduce liability if they had anticipated the imposition of later liability. The coal mine operators could not have altered their conduct to avoid retroactive liabilities arising from injuries occurring before 1950 because at that time there was no understanding of the causal relation between the exposure to coal dust and black lung disease. Thus, the injuries arising before the enactment of the statute could not have been foreseen or avoided.
It is similarly unlikely that the defendants in this case would have altered their course of conduct and paid full benefits merely to avoid the potential liability from a later change in the law. This is especially true since they would have been unlikely to recoup these amounts from the employees if the coordination provisions were later upheld for pre-1982 injuries. The employers acted in their own best economic interests at the time.
As in Usery, where the employer was required to pay benefits to former employers, the form of retroactive application at work here imposes liability for past, completed acts since the payments have already been made. These payments created an expectation in the employers that the payment periods were completed transactions. The employers in Usery also argued that the statute was purely retroactive in that it required payment to miners who left employment in the industry before the effective date of the act, i.e., past, completed transactions.
Admittedly, the employers in this case held an expectation that the payments were completed transactions. We do not accept, however, their contention that if parties have patterned their past conduct in reliance on past law, they have a vested right to have the legality of that conduct determined under law then in effect. The rational relationship test applies to economic legislation whether it is retroactive or not. The retroactive aspects of legislation must meet the test of due process, "[b]ut that burden is met simply by showing that the retroactive application of the legislation is itself justified by a rational legislative purpose.” Pension Benefit Guaranty Corp, supra at 730. The Court in Usery held that the retroactive portion of the statute was justified "as a rational measure to spread the costs of the employees’ disabilities to those who have profited from the fruits of their labor—the operators and the coal consumers.” Usery, supra at 18.
The retroactive portions of the statute challenged here are justified by a rational legislative purpose to protect the benefit levels of workers who did not receive the increases in the legislative reform packages of 1980 and 1981. Since they did not receive the increase, remedial measures were needed. These amendments served a rational legislative purpose to alleviate this hardship.
The United States Supreme Court has upheld retroactive liability even where the employers acted in reliance on existing law. In Pension Benefit Guaranty Corp, supra at 729, the Court upheld the retroactive application of the Multiemployer Pension Plan Amendments Act of 1980. The statute modified the terms of a governmentally provided program of insurance designed to insure that the termination of a pension plan would not result in insufficient funds to pay employees their anticipated benefits. Employers paid premiums for the benefit of this government subsidized insurance program. The act imposed a new obligation on employers who terminated their plans to pay a proportionate share of the plan’s "unfunded vested benefits.” This new withdrawal liability was made retroactive for five months preceding the enactment of the amendments.*
The United States Court of Appeals for the Ninth Circuit found that the retroactive provisions of the act violated due process rights because the employers had legitimately relied on existing law upon withdrawing from pension plans, but the United States Supreme Court reversed. The Court concluded that Congress could impose the act retroactively because the retroactive portion was a rational means to further a legitimate end, namely, "to prevent employers from avoiding the adverse consequences of [the newly enacted] withdrawal liability . . . Id. at 723.
The defendants seek to distinguish Usery and Pension Beneñt Guaranty Corp by arguing that the retroactive provisions of 1987 PA 28 are materially different from the workers’ compensation and pension liabilities imposed by the statutes addressed in those two cases. The defendants argue that the statute in Usery only prospectively mandated the payment of new compensation obligations and so did not impose new liabilities for past compensable periods as does 1987 PA 28. But as to those miners in Usery who had left employment in the industry before the effective date of the act, the liability for past, completed transactions was altered. Additionally, the form of retroactivity does not alter the relevant test for assessing a due process violation. The payments at issue here are "purely retroactive” in that they apply to payments for past injury and they apply to payments that were already paid for past compensable periods. We cannot say, however, that the form chosen by the Legislature was arbitrary or unreasonable.
To determine if the retroactivity is arbitrary or unreasonable, the party’s reliance on the preexisting state of the law should be considered. Thus, we must address the extent of the defendants’ justifiable reliance on the coordination provisions of the prior statute repealed by 1987 PA 28.
We are not persuaded that the defendants’ reliance on the coordination provisions was reasonable.
The defendants cannot claim a reliance interest on rights created by the workers’ compensation statute that are more deserving of constitutional protection than the reliance interest of the employers who incurred retroactive liabilities under the pension law upheld in Pension Benefit Guaranty Corp, supra at 727. In both instances, the employers were on notice of the legislative debate regarding the proposed changes in the law. Reliance on an area of law that is in a state of flux is not reasonable reliance.
There are no vested rights in the amount of liability established at the time of an injury. The Legislature possesses the authority to enact workers’ compensation laws that " 'increase the burden on the employer for disability or expenses occurring or continuing after the date of enactment of the amendatory statute, even though the accident which gave rise to the disability or expenses had occurred prior to that time.’ ” Lahti v Fosterling, 357 Mich 578, 592; 99 NW2d 490 (1959), citing Hogan v Lawlor & Cavanaugh Co, 286 AD 600; 146 NYS2d 119 (1955).
This Court has held that a remedial statute which acts retroactively does not violate due process so long as it does not impair vested rights. The statute challenged here does not violate this principle for several reasons. First, from the context in which the statute was passed, it is clear that the Legislature was modifying the coordination of benefits provision to cure a perceived defect resulting from the interpretation of the prior law in Chambers, supra. Therefore, the amendment is remedial.
Second, the defendants have no vested rights in the finality of the coordinated benefits paid. The retroactive liability imposed by 1987 PA 28 does not abrogate a vested or contractual right of the employers since workers’ compensation benefits and liabilities are statutory in origin and may be revoked or modified at the will of the Legislature. See Lahti, supra at 589. The United States Supreme Court has held that an employer’s interest in the rate of compensation is not a right that is absolutely vested for purposes of the Due Process Clause:
[Certain] vested economic rights are held subject to the Government’s substantial power to regulate for the public good the conditions under which business is carried out and to redistribute the benefits and burdens of economic life.[ ]
Finally, the 1987 amendment only modifies the source of funds from which an employer may satisfy a workers’ compensation award. The entitlement to benefits was established before the enactment of the original coordination of benefits statute. The amendment does not create a new entitlement conferring a disability status not provided under prior law. In White v General Motors Corp, 431 Mich 387, 395-396, n 7; 429 NW2d 576 (1988), this Court recognized that the retroactive increase of the amount of benefits owing to a disabled employee differs qualitatively from a statute altering the terms of a claimant’s eligibility for benefits. Thus, the defendant’s assertion that the amount of benefits specified by statute is a vested right and cannot be retroactively modified is unsupported by case law.
We hold, therefore, that 1987 PA 28 is constitutional even though it applies to benefits due and payable for a period before the effective date of the statute. We hold further that only judgments entered under former law are immune from this legislative modification. This limitation protects the vested rights that form in reliance on an award at the moment it is reduced to a final judgment.
n
Having found no violation of the Due Process Clauses, we must now decide if 1987 PA 28 violates the Contract Clause, US Const, art I, § 10. The defendants contend that the retroactive provisions violate the Contract Clause because they revive liabilities of employers that were fully discharged by completed transactions in reliance on state law. We hold that the contention lacks merit primarily because the expectation at issue here is not protected by the Contract Clause.
Further, even if the benefit levels were construed as a contractual right, the law serves a significant and legitimate public purpose and it employs reasonable means sufficient to survive a Contract Clause challenge.
A
The defendants cannot rely on the level of benefits existing at the time of an injury as a legitimate contractual expectation protected by the Contract Clause. Lahti, supra at 590-592.
Additionally, in Chambers, this Court reiterated the established principle that benefits and liabili ties in the workers’ compensation statute do not create rights protected by the Contract Clause. Chambers, supra at 654, citing Shavers v Attorney General, 402 Mich 554; 267 NW2d 72 (1978), and Lahti, supra at 591-592.
B
Even though we hold that the Contract Clause does not apply to the benefits at issue here, the retroactive provisions would survive a Contract Clause challenge. While the Contract Clause prohibits any state law from impairing the obligations of contract, this prohibition must be "accommodated to the inherent police power of the State 'to safeguard the vital interests of its people.’ ” Energy Reserves Group, Inc v Kansas Power & Light Co, 459 US 400, 410; 103 S Ct 697; 74 L Ed 2d 569 (1983). The prohibition, therefore, is not absolute. To test for the valid accommodation of the Contract Clause and the state’s police power, the United States Supreme Court has established a three-pronged test. The first prong is to determine "whether the state law has, in fact, operated as a substantial impairment of a contractual relationship.” Allied Structural Steel Co v Spannaus, 438 US 234, 244; 98 S Ct 2716; 57 L Ed 2d 727 (1978).
The impairment in this case cannot be deemed a substantial one. The workers’ compensation statute substitutes a remedial scheme of compensation for injuries otherwise subject to recovery in tort actions for the negligent acts of employers in the workplace. The employers benefit from this scheme by obtaining a definite limit on their liability for workplace injuries. Since the impairment complained of in this case does not alter this basic benefit to the employer, it cannot be said to be substantial.
One factor in determining the extent of the impairment is the degree of regulation in the industry the complaining party has entered. The party to a contract who has entered into a highly regulated industry may not remove their contract from state restrictions merely by making a contract purportedly immune from legal limitation. Energy Reserves Group Inc, supra at 411, citing Hudson Co Water Co v McCarter, 209 US 349, 357; 28 S Ct 529; 52 L Ed 828 (1908). The workers’ compensation statute regulates a field of commerce that has been subject to a wide-ranging and comprehensive scheme of government regulation. In this scheme the parties occupy a status that subjects them to certain retroactively imposed rights and liabilities. Lahti. The defendants knew that their rights were subject to alteration. In addition, the legislative resolution in early 1982 purporting to interpret §354 put the defendants on notice that the Legislature might seek to prevent the coordination of benefits for pre-1982 injuries if efforts to achieve this result failed in the courts. Since the employer was aware of the likely alteration of the coordination of benefits provision, the impairment cannot be deemed substantial.
To the extent, if any, that contractual interests are impaired, the second prong of the Contract Clause test requires that there be a legitimate public purpose for the regulation. This requirement guarantees that rather than merely providing a benefit to special interests, the state is validly exercising its police power. There is a significant state interest in protecting the right of disabled employees to receive the full compensation intended by the Legislature in return for the relinquishment of their tort claim._
It is significant that in the 1981 amendment, the resources saved as a result of coordination of benefits were reallocated to increase benefit levels generally. These increased levels, however, were only for injuries after January 1, 1982. The Legislature could have reasonably found that the coordination of benefits caused hardship among the employees whose injury dates were before 1982 since these employees were not entitled to the overall increase of benefits provided for those injured after 1982. There was a legitimate state interest, therefore, in correcting this perceived inequity.
The final prong of the Contract Clause test examines the means by which the contracting parties’ rights and responsibilities are adjusted. The means chosen here are reasonable in the light of deference given to legislative action. "As is customary in reviewing economic and social regulation . . . courts properly defer to legislative judgment as to the necessity and reasonableness of a particular measure.” United States Trust Co v New Jersey 431 US 1, 22-23; 97 S Ct 1505; 52 L Ed 2d 92 (1977). The means are also reasonable since the statute imposes no more retroactive liability than is necessary to remedy an unexpected circumstance relating to the interpretation of a prior statute. The judicial interpretation that allowed for the setoff was deemed to be incorrect and the setoff must be returned, not an unreasonable solution.
We find that 1987 PA 28 serves a legitimate state interest in protecting the benefits of disabled employees through reasonable means sufficient to survive a Contract Clause challenge.
hi
Turning to the Separation of Powers and One Court of Justice argument, we do not read the provisions of 1987 PA 28, § 354(17)-(20), as violating either art 3, § 2 or art 6, § 1 of the Michigan Constitution. The operative provisions of the statute do not encroach upon the sphere of the judiciary. Rather, they merely repeal the act that Chambers construed. That prior statute is superseded by 1987 PA 28 and the amendatory act expressly indicates that it is to be applied retroactively. This enactment is a valid exercise of the Legislature’s authority to retroactively amend legislation perceived to have been misconstrued by the judiciary. Such retroactive amendments based on prior judicial decisions are constitutional if the statute comports with the requirements of the Contract and Due Process Clauses of the federal and state constitutions, and so long as the retroactive provisions of the statute do not impair final judgments.
Numerous courts have recognized that the Legislature may cure, the judicial misinterpretation of a statute. For instance, the federal courts have upheld statutes that retroactively abrogate statutory rights, at least where the repealing statute does not impair final judgments. In Seese v Bethlehem Steel Co, 168 F2d 58, 62 (CA 4, 1948), the court reasoned that the Legislature’s enactment of a retroactive statute repealing the effects of a prior judicial decision is not an exercise of judicial power:
When the Fair Labor Standards Act was interpreted by the Supreme Court as requiring computation in the work week of time consumed in walking to work and other preliminary activities, this was just as though the original act contained express provision to that effect; and, when Congress passed the sections of the statute here under consideration, the effect was to repeal the original statute to the extent of that coverage and deny to the federal courts jurisdiction to entertain a suit based thereon. This does not in any manner affect adjudications already made, nor does it attempt to direct the courts in the exercise of judicial power. All that it does is to define rights, i.e., to amend or limit the effect of a prior statute so as to take away a cause of action given by it.[ ]
Similarly, in Long v United States Internal Revenue Service, 742 F2d 1173 (CA 9, 1984), subsequent proceedings vacated on other grounds 487 US 1201; 108 S Ct 2839; 101 L Ed 2d 878 (1988), the court upheld a statute that abolished the plaintiff’s right to obtain disclosure of certain irs data, although such disclosure rights had been created by a previous federal appellate decision interpreting a statutory exemption to the Freedom of Information Act. In upholding the Congressional repeal of this exemption against due process challenge, the Court articulated a principle that is useful in resolving the separation of power claim presented here:
Courts have consistently upheld the retroactive application of "curative” legislation which corrects defects subsequently discovered in a statute and which restores what Congress had always believed the law to be. [Id. at 1183.]
Indeed, if the defendants’ separation of powers claim had merit as applied to the curative statute challenged here, the power of the Legislature to enact curative and remedial legislation would be severely curtailed, even where the statute does not violate constitutional due process limits. This would represent a judicial usurpation of what is properly a legislative function.
Finally, we conclude that §354, as originally enacted in 1982, gave employers the right to coordinate benefits when an employee received a duplicate recovery through the receipt of other employer-funded benefits. Thus, employers may have properly exercised this right by withholding compensation benefits due and payable between the date of decision of Chambers in 1985 and the repeal of these provisions in 1987. An employer’s act of withholding benefits, however, does not have the status of a final judgment.
CONCLUSION
The employers’ right to coordinate benefits as provided by statute in 1982 was repealed by 1987 PA 28 through a constitutional exercise of legisla tive authority to regulate social and economic life. We hold that 1987 PA 28 does not violate the Due Process Clauses of the state and federal constitutions, the Contract Clause of the federal constitution, or the Separation of Powers Clause of the Michigan Constitution, so long as it is not applied to impair coordination rights that were reduced to final judgment before its effective date.
Accordingly, we affirm the decision of the Court of Appeals.
Levin, Boyle, and Archer, JJ., concurred with Cavanagh, J.
See Chambers v General Motors Corp, 1982 WCABO 751, and Franks v White Pine Copper Div, 122 Mich App 177; 332 NW2d 447 (1982).
The House and Senate both adopted legislative resolution in early 1982, purporting to interpret § 354 to prevent the coordination of benefits of persons injured before the effective date of § 354. These legislative resolutions, however, are not binding on this Court. Chambers v General Motors, 422 Mich 636, 659; 375 NW2d 715 (1985).
Subsection 17 provides:
The decision of the Michigan Supreme Court in Franks v White Pine Copper Division, 422 Mich 636 (1985) is declared to have been erroneously rendered insofar as it interprets this section, it having been and being the legislative intention not to coordinate payments under this section resulting from liability pursuant to section 351, 361, or 835 for personal injuries occurring before March 31, 1982. It is the purpose of this amendatory act to so affirm. This remedial and curative amendment shall be liberally construed to effectuate this purpose.
Subsection 19 provides:
Notwithstanding any other section of this act, any payments made to an employee resulting from liability pursuant to section 351, 361, or 835 for a personal injury occurring before March 31, 1982 that have been coordinated before the effective date of this subsection shall be considered to be an underpay ment of compensation benefits, and the amounts withheld pursuant to coordination shall be reimbursed with interest, within 60 days of the effective date of this subsection, to the employee by the employer or carrier.
Subsection 20 provides:
Notwithstanding any other section of this act, any employee who has paid an employer or carrier money alleged by the employer or carrier to be owed the employer or carrier because that employee’s benefits had not been coordinated under this section and whose date of personal injury was before March 31, 1982 shall be reimbursed with interest, within 60 days of the effective date of this subsection, that money by the employer or carrier.
See 30 USC 931-945.
The Court has examined an argument based on the likelihood of altering conduct to avoid future liability in Welch v Henry, 305 US 134; 59 S Ct 121; 83 L Ed 87 (1938). The Court upheld against due process attack a state statute enacted in 1935 which taxed 1933 dividend income previously exempted by the 1933 taxing statute. The Court held that the stockholder would have continued to receive corporate dividends even if he had known that the dividends would later be taxed.
Usery, supra at 40, n 4 (Powell, J., concurring).
As Justice Boyle stated in Chambers, supra at 662: "[OJverpayments by an employer while waiting for the board to approve a setoff may be difficult or impossible to recover.”
29 use 1381-1461.
The retroactive provisions of the act resulted in the appellee in Pension Benefit Guaranty Corp, supra, having to pay a withdrawal liability of $201,359 that could neither have been foreseen nor avoided. Id. at 725. Prior to enactment, this employer would have been liable upon termination of the plan to pay only funded pension rights that had vested.
See Shelter Framing Corp v Pension Benefit Guaranty Corp, 705 F2d 1502 (CA 9, 1983).
See Brennan v Kirby, 529 A2d 633, 640 (RI, 1987), citing Hochman, The Supreme Court and the constitutionality of retroactive legislation, 73 Harv L R 692, 727 (1960). »
We do not address in this opinion the constitutionality of a retroactive statutory reduction in workers’ compensation benefit levels.
In Karl v Bryant Air Conditioning Co, 416 Mich 558; 331 NW2d 456 (1982), the Court held that the newly enacted statute adopting comparative negligence could be applied to a products liability action even though the action was brought before the adoption of comparative negligence; the retroactivity did not violate due process because it did not take away any vested rights. See also Hansen-Snyder Co v General Motors Corp, 371 Mich 480; 124 NW2d 286 (1963).
United States v Locke, 471 US 84, 105; 105 S Ct 1785; 85 L Ed 2d 64 (1985), citing, inter alia, Usery, supra.
Energy Reserves Group, Inc, supra, citing Spannaus, supra at 242, n 13, citing Veix v Sixth Ward Bldg & Loan Ass’n of Newark, 310 US 32, 38; 60 S a 792; 84 L Ed 1061 (1940) ("When he purchased into an enterprise already regulated in the particular to which he now objects, he purchased subject to further legislation upon the same topic”).
See, e.g., Long Island Oil Products Co, Inc v Local 553 Pension Fund, 775 F2d 24, 30 (CA 2, 1985).
Accord Battaglia v General Motors Corp, 169 F2d 254, 261-262 (CA 2, 1948) ("[n]or is the Portal-to-Portal Act ... an encroachment upon the separate power of the judiciary”).
We are, however, troubled by the language of subsection 17 of 1987 PA 28. This provision contends that this Court’s holding in Franks, n 3 supra, was erroneous. Even though the Legislature has authority to remedy the effects of this Court’s decisions, and may do so by repealing statutes which those decisions interpret, the Legislature lacks the power to act as a supreme judicial body. But we need not address the defendants’ separation of powers claim with respect to this particular provision. Even if we held that subsection 17 violated the Separation of Powers Clause of the Michigan Constitution, this holding would not affect the validity of subsections (18K20). These separate amendatory provisions express a legislative intent to retroactively prohibit the coordination of benefits authorized by the prior statute. These provisions wholly replace the former law. The legal effect of such a repealing statute that wholly supplants a former statute was addressed by this Court in Lahti, supra at 588. Lahti held:
" 'Where a section of a statute is amended, the original ceases to exist, and the section as amended supersedes it and becomes a part of the statute for all intents and purposes as if the amendments had always been there.’ ” [id.]
See, generally, Hochman, n 13 supra at 704.
We do not address the question of how and to what extent the principles of finality are implicated. | [
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McGrath, C. J.
This is case for negligence.
Plaintiff, a bus driver, was m route for the depot, with two passengers. Three railway tracks crossed the street near the depot. A freight train occupied one of these tracks, and obstructed the street for over 20 minutes. The conductor of the freight train had gone to dinner. Plaintiff halted his team some 3 or 4 rods south of the tracks, and waited from 10 to 15 minutes for the freight to get out of the way, or to make a cut so that he might pass. While waiting, a passenger train came along on one of the tracks north of the track occupied by the freight train, enveloping the freight train at the crossing in smoke and steam. Plaintiff's horses became frightened, backed away, •overturned the bus, and ran away, throwing plaintiff out and injuring him. The horses were ordinarily gentle, and were used to running trains as well as to standing cars, and had not before that time taken fright at either.
This is the second appearance of the case in this Court. On the former appeal this Court held (58 Mich. 195) that, while the declaration alleged that the horses were frightened and the injury occasioned by carelessly and negligently causing the passenger engine to exhaust great quantities of steam and noise, the plaintiff had failed to give any evidence in support of the allegation of wrong to which he had by his declaration attributed the injury. Plaintiff amended his declaration, and now alleges that—
“ Defendants did then and there, by their said cars and train, obstruct the said public highway for more than five minutes at one time, to wit, at said time; that is to say, they negligently and unlawfully obstructed it for more than five minutes immediately preceding the time when the plaintiff reached the spot as aforesaid, with their said cars and train, and at a time when the west-bound passenger -train, run by tbe defendants over said railroad would arrive and depart from said depot, passing over the track on the north side of said freight train, and the engine drawing the same would exhaust great quantities of steam, and. thereby, with its whistle and bell, make a great noise, and, the wind blowing fresh from the north, the smoke and steam from the passing engine would be driven south over the said freight train, carelessly, negligently, and wantonly neglecting to cut the train, and open a passage along said highway across said track at any time during said period of over twenty minutes, but wrongfully left the cars and train standing on the track across the said highway during •all that time, totally blockading and preventing travel thereon during all of said period, well knowing people would need to use the street at said time in going to the depot, with and without teams and wagons, to meet the west-bound passenger train over said railroad; and also knowing that the blockade of said highway, as aforesaid, made it an unsafe and dangerous place for teams to be caught in."
It is insisted by defendant that the present case is ruled by the decision upon the former hearing, and stress is laid upon that part of the opinion in which the Court say:
“ The plaintiff has not, by his declaration, attributed his injury to the illegal detention, and, if he had, it would have been idle, for the particular injury of which he complained, namely, the fright and running away of his horses, could not have flowed from that detention as a proximate cause."
The Court had already disposed of the first allegation of wrong, viz., that the defendant had negligently obstructed the street, and had eliminated that allegation from their •consideration; but the trial court had instructed the jury that, if the plaintiff had been unavoidably detained, and ■by reason of that detention, and while waiting, the team became frightened by the surroundings, in consequence of which plaintiff was injured, the defendant was liable. It was with reference to this instruction that this Court used the language upon which stress is laid by defendant. It is not .alleged or claimed that the fright and runaway were occasioned by the illegal detention as the proximate cause, but by the obstruction which caused the detention. That opinion was written by Chief Justice Cooley, and filed at. the June term, 1885; but in the case of Young v. Railway Co., 56 Mich. 430, 438, in an opinion filed at the April term of the same year, and concurred in by Chief Justice Cooley, speaking for the Court, Mr. Justice Champlin says:
“If it be conceded that teams could be driven through the opening left by defendant between its cars, and across, the plank crossing, without coming in contact with the rail of the main track, yet, if the freight car obstructed the traveled track, and by reason of such obstruction caused the plaintiff's horse to sheer off so as to throw one runner of the outter against the rail of the main track, the horse being one of ordinary gentleness, such conceded facts would present a proper question for the jury to determine,— whether the injury resulted from leaving the freight car in that position, and whether plaintiff's husband ivas in the-exercise of ordinary care ivhile driving the horse.
“No railroad company has the right to obstruct a public-highway with its cars an unreasonable length of time, and, as before stated, the Legislature has enacted that this time shall not, in any one instance, exceed five minutes. The liability arises from the duty of the company to leave the traveled part, of the highway unobstructed after the expiration of the reasonable time limited by law. A violation of this duty is. negligence, and, if a party is injured by reason thereof, being free from fault on his own part, wrong and injury concur, and the liability attaches. * * * We can only apply the law to those facts. The shying of the horse was the result of the act of the defendant in obstructing the highway. If the car was lawfully there, and defendant had not violated any duty at. the time, no liability would have attached, for the reason that, although injury might have arisen from the shying of the horse, the defendant had been guilty of no wrongful or negligent act which concurred in producing the injury."
In the present case there was no intervening cause. The obstruction of the highway was a continuous breach of duty-It was a cause operating at the time of the injury. The smoke and steam were concurrent, rather than intervening,. causes. They were contemporaneous. They enveloped and environed the freight train, and produced a condition of the cars. It was for the jury to say whether the fright of the horses was caused by the appearance of the freight cars, surrounded as they were. Again, if the team was frightened by the noise and steam and smoke under the circumstances, it was for the jury to say, under testimony clearly tending to show that the team was used to passing trains and their attendant incidents, whether it was not the presence of the freight train across the highway, obscuring the origin of the steam and smoke and noise, that was the cause of the fright and injury. The wrongful act had not ceased to operate.
In the recent case of Telephone Co. v. Robinson, 50 Fed. Rep. 810, the company had permitted one of its wires to remain suspended across a public highway, a few feet from, the ground, and plaintiff came in contact with it during an electrical storm, and was injured by a discharge of electricity, which had been attracted from the atmosphere. The court held that, since the electricity would have been harmless except for the wire, the defendant was liable.
“If,” it is said, “the electric fluid with which the wire of the telephone company was charged at the time was an element, or the main element, in the production of the injuries to the defendant in error [plaintiff], still it is clear that the displaced wire furnished the means of the communication of the dangerous force which resulted in the injury. * * * To say that the agency of the telephone wire in the production of the injury was inferior to that of the electric current, which was the main cause, is not satisfactory. it is, in fact, to admit that the company’s displaced wire furnished the means by which the dangerous force was communicated to and injured the defendant in error. True, it was a new force or power which intervened, with the production of which the telephone company had nothing to do; but upon this point, in Insurance Co. v. Tweed, 7 Wall. 52, the court say: 'If a new force or power has intervened, of itself sufficient to stand as the cause of misfortune, the other must be considered as too remote.’ The new force or power here would have been harmless but for the displaced wire and the fact that the wire took on a new force, with the creation of which the company was not responsible, yet it contributed no less directly to the injury on that account.”
There the wire furnished the means of communication. Here it was a question for the jury to determine whether the cars did not give to the noise and steam and smoke a character which, as to this team, they did not possess in the absence of the obstruction. It was for the jury to say whether the new forces would or would not have been harmless except for the presence of the obstruction.
In the case of Grimes v. Railway Co. (Ind. App.), 30 N. E. Rep. 200, recently determined, the rule is laid down that — •
“When two causes combine to produce an injury, both of which causes are proximate in tlieir character, — the one being' the result of culpable negligence, and the other an occurrence as to which neither party is at fault, — the negligent party is liable, provided the injury would not have been sustained but for such negligence.”
A large number of authorities are cited which support the doctrine. The rule is followed in Association v. Wilcox (Ind. App.), 30 N. E. Rep. 202.
In Campbell v. City of Stillwater, 32 Minn. 310, it is said that,—
“Where several concurring acts or conditions of things —one of them, the wrongful act or omission of the defendant' — produce the injury, and it would not have been produced but for such wrongful act or omission, such act or omission is the proximate cause of the injury.”
In Shearman & Redfield on Negligence (section 39) the authors say:
“It is universally agreed that, if the damage is caused by the concurring force of the defendant’s negligence and some other cause, for which he is not responsible, including the ‘ act of God ’ or superior human force directly intervening, the defendant is nevertheless responsible if his negligence is one of the proximate causes of the damage, within the definition already given. It is also agreed that, if the negligence of the defendant concurs with the other cause of the injury in point of time and place, or otherwise so‘directly contributes to the plaintiff's damage that it is reasonably certain that the other cause alone would not have sufficed to produce it, the defendant is liable, notwithstanding he may not have anticipated, or been bound to anticipate, the interference of the superior force which, concurring with his own negligence, produced the damage. But if the superior force would have produced the same damage, whether the defendant had been negligent *or not, his negligence is not deemed the cause of the injury."
In Railroad Co. v. Reaney, 42 Md. 136, Alvey, J., says:
“The efficient and predominating cause in producing a given event or effect, though there may be subordinate and dependent causes in operation, must be looked to in determining the rights and liabilities of the parties concerned."
The rule laid down by Mr. Cooley in his work on Torts (page 70) is that,—
“If the original act was wrongful, and would naturally, according to the ordinary course of events, prove injurious to some other person or persons, and does actually result in injury through the intervention of other causes which are not wrongful, the injury shall be referred to the wrongful cause, passing by those which were innocent."
In the note to page 71 the same author says:
“ It is equally true that no wrong-doer ought to be allowed to apportion or qualify his own wrong; and that, as a loss has actually happened whilst his own wrongful act was in force and operation, he ought not to be permitted to set up as a defense that there was a more immediate cause of the loss, if that cause was put in operation by his own wrongful act. To entitle such party to exemption, he must show, not only that the same loss might have happened, but that it must have happened if the act complained of had not leen done.” Citing Davis v. Garrett, 6 Bing. 716.
In the present case, while the passenger train was not put in operation by the act of obstruction, both trains were operated by defendant, and it was for the jury to determine whether the presence of the obstruction did not give a different color and character to the other operations, and convert otherwise harmless incidents into fear-exciting agencies, and whether the presence of the obstructing cars did not produce the effect which caused the fright, the runaway, and. the injury.
In 2 Thomp. Neg. 1084, it is said that—
“ Whoever does a wrongful act is answerable for all the consequences that may ensue in the ordinary and natural course of events, though such consequences be immediately and directly brought about by intervening causes, if such intervening causes were set in motion by the original wrongdoer.”
It is insisted that ‘ the result was not one that could have been anticipated, but that is not the test of liability in cases like the present. The question what a reasonable man might foresee is of importance in determining the question of negligence; Rut when the act complained of is negligent per se, the person guilty of it is equally liable for its consequences, whether he could have foreseen them or not. Smith v. Railway Co., L. R. 6 C. P. 21; Grimes v. Railway Co., supra; Shear. & R. Neg. supra.
The trial court properly submitted the question of the proximate cause to the jury, and we find no error in his instructions.
It is unnecessary to discuss the other questions raised. Upon an examination of them, we do not discover any prejudicial error.
The judgment is affirmed, with costs to plaintiff.
The other Justices concurred. | [
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Long, J.
The testator died on January 2, 1891, leaving a last will and testament. The will was made September 13, 1888, and bequeathed all his household goods, wearing apparel, ornaments, and one-third of the remainder of his personal property to his wife, forever, and also devised to her one-third of his real estate during the term of her natural life. The remainder of his real and personal estate he gave to his son, David P. Wilcox, Jr., forever, providing that, should the son die before he arrived at the age of 21, without issue, then said remainder should gp to the testator’s wife, forever. This will was approved and allowed in the probate court for Clinton county, March 10, 1891, and from which the contestants appealed to the circuit court.
The beneficiaries under the will are the second wife and her child by the testator. The testator, at the time .of his second marriage, had two daughters by a former marriage then living, and at that time was about 76 years of age. Before the death of his first wife, the present Mrs. Wilcox, whose name was Ella Duff, lived in his family. She was a comparatively young woman, and had previously been married.
The will is contested solely on the ground of undue influence, claimed by the contestants to have been exercised over the aged father by the second wife. At his death the testator left an estate of about $35,000, consisting of farming land and personal property, the whole of which, by the terms of the will, was given to his wife and her child, to the exclusion of his daughter, and the representatives of the other daughter, who had died prior to the death of the testator. Considerable testimony was offered upon the trial in the court below tending to show undue influence, but the court was of the opinion that some of' this testimony was too remote, and that no showing was. made near enough to the time of the execution of the will to make a ease for the determination of the jury. Many pages of the record are taken up with offers of testimony, and which, with the testimony taken by deposition, counsel for contestants claim the court erred in excluding, and in determining as matter of law that it did not constitute undue influence at the time the will was executed. The court directed a verdict in favor of the proponents.
It would bo unprofitable, in the present state of the case, to determine more than the one question of whether the case, under the testimony given and that offered, should have been submitted to the jury; and in the determination of that question it is not necessary to set forth the testimony here, as we think, upon the whole record, the court erred in taking the case from the jury.
The verdict and judgment must be reversed, with costs, and a new trial ordered.
The other Justices concurred. | [
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Grant, J.
This is a condemnation proceeding to open, widen, and extend Toledo avenue, in the city of Detroit, from Twenty-fourth street to Scotten avenue. The jury found that the necessity for opening the street existed, and awarded the appellant $4,497.06 for damages.
Four objections are raised against the validity of the proceedings:
1. That there was no evidence showing any public necessity for opening the street.
2. That the award made no provision for loss and injury to appellant’s business, by reason of its having to change its method of conducting the same.
3. That the court erred in instructing the jury:
“If the benefit to tbe public of tbe city of Detroit exceeds the cost and expense of making tbe improvement, then you will be justified in finding that there is a public necessity for making the improvement in the manner proposed.”
4. That tbe court erred in allowing tbe following question:
“ Would tbe opening of Toledo avenue, as proposed in this proceeding, give a direct route into the city as soon as possible, and is it necessary to open it?”
1. We think tbe evidence of necessity sufficient to sustain the finding of the jury. Tbe evidence on tbe part of tbe petitioner tended to show that there was a considerable population which would secure a more direct route into tbe city; that tbe fire department would secure better facilities for protection against fire; that a better communication with tbe school would be afforded children living in tbe vicinity; and that the opening would bring the people living beyond, five blocks nearer tbe center of tbe city. In addition to this, the jury viewed the premises.
2. We do not think it can be said that tbe jury made no award for damages to ajDpellant's business. There was evidence showing that the land alone was worth only $3,000. Appellant manufactured boilers, and claimed to-have so constructed its building that in loading its heavy boilers upon tbe cars it would be necessary to erect a derrick having an arm of 35 feet, while less than that space was left between tbe side of tbe building and tbe proposed street. The court explicitly charged the jury to allow “tbe full measure of compensation and tbe injury done to tbe business.” But it is insisted that this charge was wholly ignored by tbe jury. There was evidence tending to show that a. derrick sufficient for tbe purpose could be used in the space left. Tbe situation of the premises and the character of tbe business were fully presented to tbe jury, rriio viewed the premises. We cannot, therefore, say that tbe jury ignored this claim or the charge of the court.
3. The charge of the court complained of must be taken in connection with the entire charge, and when so taken was exceedingly favorable to the appellant. At the request of appellant’s counsel, the court charged the jury as follows:
“ The jury must not only find that it is necessary to take the property to open the street as proposed, but that the public necessity requires the street itself to be opened.
“If there is a route which would accommodate the .general public more fully, and at a lesser cost, it is the duty of the jury to find that the proposed improvement is not a public necessity.
“ If the opening of the street is a convenience to individn uals merely, it is not a necessary public improvement, and private property cannot be taken to serve that convenience.
“The law considers the rights of the property and business carried on by the respondent as of equal consideration, and entitled to as much protection, as the right of the city to take the property and to interfere with the business; and will not permit the property to be taken and 'the business to be interfered with unless an actual public necessity exists for the making of the improvement.
“ Unless the public benefit exceeds the amount to be paid for compensation, there is no necessity to take the land.
“The elements of damage are: (1) The value of the property taken for the opening of the street; the injury to the works and property not taken, and left in the parcel of land from which the property is taken. (2) The injury to the business of the owner. (3) Compensation for all prospective loss •or injury resulting from the opening of the street, and the taking of the property for that purpose.”
Under this charge, the jury could not have been misled into believing that “ the cost and expense ” meant anything •else than the value of the land and the damage to appellant’s business.
4. The witness whose testimony was objected to lived in that section of the city, had detailed the situation of the streets, and stated the number of manufactories that existed in the vicinity. It is insisted that the question called for a conclusion, and was putting the witness in the place of the jury. We think the court should have excluded the question, but we do not think that the jury could possibly have been misled by the answer. We do not think verdicts should be set aside in these important proceedings for such harmless errors.
The judgment is affirmed.
The other Justices concurred. | [
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] |
G-rant, J.
Plaintiffs had verdict and judgment. The facts will be found sufficiently stated in 77 Mich. 517, when this case was first before the Court. There are eight assignments of error, but we shall consider only those which appear to be argued in the defendant’s brief.
1. The defense is that the mortgage was fraudulent as io creditors, and that, if not fraudulent, it was paid at the time the suit was commenced. Plaintiffs, the mortgagees, and Edgett, the mortgagor, had both testified to facts which clearly showed that the mortgage was given for a bona fide indebtedness, and without any intent to -defraud creditors. They also testified that there was about $1,900 due on the mortgage at the time this suit was commenced. Plaintiffs testified to this from. their recollection. Their books were produced in court, which they said contained the true state of the account between them and Edgett. These books had been used upon former trials of the case. Plaintiffs did not formally offer them in evidence, but tendered them to defendant’s counsel upon the trial for their examination and 'use. The position of defendant’s counsel appears to be that it was the duty of the plaintiffs to put these books in evidence, and that they were not entitled to recover without having so done. The position is not tenable. It was competent for plaintiffs to testify to the amount due. If the defendant questioned this, and believed that plaintiffs’ books would show the contrary, it was his duty to examine them, and put them in evidence if he desired.
2. The court was correct in instructing the jury that the evidence would not warrant them .in finding that the mortgage was fraudulent in its inception. The burden of proof in this respect was upon the defendant, and he produced no testimony showing fraud.
3. Edgett had assigned to the plaintiffs a land contract, which was not fully paid. After this suit was commenced, and after the mortgage was foreclosed, plaintiffs paid the balance due upon it, and took a deed. The court instructed the jury that “ the deed, being made afterwards, cuts no figure so far as the payment of the mortgage is concerned. It must have been paid before the suit was commenced.” The instruction was correct.
4. The court instructed the jury that, if the mortgage was paid at the time this suit was commenced, the verdict must be for the defendant; but if they found that it was not paid, but that there was one dollar due upon it, then the plaintiffs should recover. The only complaint defendant’s counsel appears to make of this instruction is that the foreclosure for so trifling a sum would, of itself, be a badge of fraud. The enforcement of a strictly legal right, however small the amount involved, is not, of itself, a badge of fraud. Whatever it might be in some circumstances, there were none in this case to render the charge improper, or to require any qualifications of it, and defendant had given no evidence to contradict the plaintiffs as to the amount due upon the mortgage. Edgett, the mortgagor, had manufactured shingles, and delivered them to the plaintiffs. Plaintiffs testified that, after giving credit for these, the amount then due was . as above stated.
Defendant offered no evidence to contradict this.
We find no error upon the record, and the judgment is. affirmed.
The other Justices concurred. | [
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Long, J.
The original bill of complaint in this case was filed January 18, 1890, in which it is set forth substantially •that the complainant is the daughter of Addison H. Wilder, who died when she was of the age of about one year; that Myron C. Wilder was appointed her guardian by the probate court of Ionia county, March 8, 1871, and, as such guardian, •obtained possession of about $1,500 of personal property belonging to her, but she is unable to state the exact amount, as she never had a final accounting with him; that in March, 1877, Mr. Wilder, as guardian, filed a sworn statement in the probate court, setting forth that he had in his hands $812.69 belonging to the complainant; that he also filed a statement in 1879, showing in his hands $807.69, and in 1881 another statement, showing that he had $767.69; that when complainant became of age her guardian proposed to settle with her, if she would go to Mr. Webber’s bank at Muir; that, upon going to the bank, Mr. Webber paid her $135, and told her that her guardian had left a note of $812.69, which had been given by one Aaron Abbey; that she refused to accept this note, upon the ground that the maker was insolvent; and that subsequently her guardian attempted to make a final .settlement with her by her taking the note she had refused. The bill further sets up that her guardian neglected his duty, and never intended to file any final account, but omitted to do so, in order to aid him to defraud the complainant; and •that, because of his neglect and omission of duty, he lost ;$1,000 belonging to her, which he should account for, and for •.which his estate should be liable.
It is further alleged in the bill that Aaron Abbey was the sole surety upon the guardian’s bond, and, when the complainant arrived at her majority, Abbey was insolvent; that her guardian died August 5, 1889, leaving his account with her unsettled; that he left a will, disposing of his property, which was proved and allowed in the probate court .for Ionia county in September, 1889, the defendant being appointed executor thereunder. His estate was inventoried at $4,100.94, and it is alleged in the bill that this included the property, or the proceeds thereof, which Mr. Wilder, as guardian, held in trust for the complainant, and that such property is now in the hands of the executor of Myron C. Wilder, deceased. It is claimed by the bill that, if the bequests named in the will are paid, together with the creditors’ claims, the residue of the estate will be entirely insufficient to satisfy complainant’s demand; and that, by virtue of the trust relations which existed between the complainant and Wilder, her claim is, paramount to that of the legatees, devisees, heirs, or any other creditors; and prays for an injunction against the executor, restraining and forbidding him from making any distribution of the estate until the complainant’s demands are satisfied, and that the executor render an account of the goods, chattels, and property which came into his custody, belonging to the complainant.
On January 23, 1890, the circuit judge made an order requiring the defendant to show cause on the 28th of that month why an injunction should not issue as prayed.. Upon that day the defendant filed a plea, admitting the death of Myron C. Wilder, and the appointment of defendant as executor, and his qualification as such. The plea then sets forth that on November 20, 1889, commissioners on claims were appointed on the estate of Mr. Wilder, pursuant to chapter 224, How. Stat., to receive, examine, and adjust all claims against said estate; that said commissioners entered upon the discharge of their duties, and upon December 27, 1889, published a notice, as required by the statute, of their meeting for that purpose; that, by virtue of the .statute in such case provided, the action of complainant set forth in her bill of complaint cannot and ought not to be maintained; that sections 15 and 60, chap. 22d, How. Stat., bar complainant’s bill; and prays the judgment of the court as to whether defendant should be compelled to make any further answer.
On January 30, 1890, the complainant moved to set aside the plea for insufficiency, in that it presents nothing which would be a bar to the suit or any substantive part of it. February 26, the court made an order overruling the plea, and requiring defendant to file his answer within 20 days, and ordered the issuing of an injunction. On the same day an injunction issued, directed to the defendant, requiring him to absolutely desist and refrain from .making any distribution of the property, money, goods, chattels, credits, and effects in his hands or under his control belonging to the said estate, or in any manner parting with the possession or control of the the same.
April 3, the defendant filed his answer, in which it is denied that the inventory of the Wilder estate included any property, or the proceeds of any property, belonging to the complainant. The answer admits the death of Addison H. Wilder, complainant’s father, and alleges that Aaron Abbey was appointed administrator of his estate, and that he never filed any final account, or paid f over any money in his hands belonging to said estate. The answer further sets out that in. March, 1871, a petition was filed in the probate court praying for a guardian for the complainant on the ground that, she was interested in real estate in Montcalm county, and that Myron C. Wilder was appointed as such guardian; that the land mentioned was sold by Aaron Abbey, as administrator, July 5, 1871, and tbat Abbey did not account for tbe money received for sucb land, and did not file any final account, and no order was ever made directing wbat disposition should be made of tbe money; and tbat, in 1874, Abbey failed, and remained financially irresponsible.
It is further alleged tbat Myron O. Wilder, tbe guardian, attempted to collect tbe money of Abbey for bis ward; tbat, with a view of getting a settlement, October 29, 1874, Mr. Wilder took a note of Abbey of $812.69, it being expressly agreed tbat tbe note should not be payment, but evidence of tbe amount, and tbat on tbe same day Mr. Wilder received two other notes from Abbey, — one for $194.20, and one for $104.70; tbat these notes were given by other parties to Abbey, and, when paid to Mr. Wilder, were indorsed on tbe Abbey note, leaving a balance due of $513.79; and tbat another indorsement was made in August, 1880^ upon tbe note, of $7.05. The answer denies tbat Wilder ever received any other or further money from said estate, and tbat tbe balance of tbe note is wholly uncollectible. Tbe answer avers tbat complainant became of age whiletbe note was in full force and effect, and tbat she was informed of all tbe facts concerning tbe transaction as totbe note, and tbe note tendered to her; tbat Myron C. Wilder paid to her the full sum of money received into bis bands belonging to her. It is further claimed by the answer tbat Mr. Wilder boarded and clothed complainant, who resided with him for more than 15 years; and tbat her clothes, board, and schooling, together w*th tbe moneys paid her, were in full of all demands she bad against him. It is admitted by tbe answer tbat Mr. Wilder-made tbe reports to the probate court as charged in the bill, but it is claimed tbat tbe Abbey note was figured in. as a part of tbe property belonging to tbe complainant. Tbe answer also sets forth tbe appointment of commis sioners, as stated in the plea; that they entered upon their duties, and had been discharged; and claims the same advantage as though these facts had been pleaded.
The proofs were taken in open court, from which it appears that, after the death of complainant’s father, Aaron Abbey was appointed administrator of his estate, and gave the requisite bond, with Myron C. Wilder, deceased, the sole surety thereon. ' This appointment was made in October, 1866. Abbey continued to act as administrator, he having as yet never been discharged, and never having filed an accounting. In March, 1871, he petitioned the probate court for Ionia county to sell this piece of real estate in Montcalm county. The license was afterwards granted, and the sale was made, the administrator giving a bond, with Charles W. Staley and George W. French as sureties. The proofs show that these sureties are financially responsible to meet all the requirements of the bond. The-real estate brought $925. Myron C. Wilder was appointed guardian, with Aaron Abbey as sole surety on his bond. The sale of the real estate was consummated in July, 1871, and an order of confirmation entered in November following. The testimony further shows that in July, 1873, Abbey failed, the money coming into his hands from the sale of the real estate having been used by him in the year previous, whereupon the guardian took the note from Abbey, and received the moneys as set forth in the answer. The testimony further shows that from the time the complainant was two or three years old she lived with Myron O. Wilder until she was married, during which time he clothed, boarded, and educated her at his expense, except for a short time, when she taught school. The testimony further shows that after she became of age Mr. Wilder paid her about $500 in money, and also tendered her the Abbey note, which she refused.
After the testimony was closed, the complainant’s solicitors obtained an order from the court permitting them to file amendments to the bill, and giving the defendant 10 days after service of the amendments to plead, answer, or demur to the amended bill. These amendments set-up the appointment of Mr. Abbey as administrator of complainant’s father’s estate, and that Myron C. Wilder was sole surety on his bond; the sale of the land by him as administrator, and the coming-into his hands of the money from such sale, and that at that time he was solvent, and was solvent for six months thereafter, at which time he should have paid over the money to Mr. Wilder as guardian; that it was the duty of the guardian to have caused Abbey to account for the money in his hands, and that it was negligence in him not to collect the money from Abbey; that he neglected to perform this duty, but permitted Abbey to retain the money until July, 1873, when Abbey became insolvent, and unable to pay his debts; that Abbey was permitted to retain the money by Wilder’s consent, and that, therefore, the Wilder estate is liable to account with the complainant in a court of chancery for the reasons:
1. That it was negligence, and utter failure to perform his duty, on his part to leave the money in the hands of Abbey so long after he should have accounted for it.
2. That, as he was surety on Abbey’s bond, he is liable, as such surety, for any loss of money for which Abbey was liable.
By this amendment paragraph 3 of the original bill was stricken out, which alleged that Wilder, as guardian, obtained possession of this money.
Defendant’s counsel moved to strike out these amendments, for the reason that they attempted to change the very substance of the bill, by making an entirely different case, and as basing the complainant’s right of recovery upon an entirely different theory; that the bill, being an injunction bill, could not be amended without good and sufficient reasons shown to the court, and that no such reasons were shown. This motion was overruled and the amendments permitted to stand. The defendant thereupon filed a plea to the •amended bill, ■which substantially sets up the same matter as does the plea to the original bill. The court overruled the plea, and the defendant answered the amended bill.
The court below entered a decree, July 9, 1891, in favor of the complainant, holding:
1. That the bill in equity would lie, and the complainant was entitled to the aid of the court.
2. That the complainant should recover from the defend.ant, as executor, $812.69, less the items in defendant's .account, which the court allowed as follows:
a — The sum of $300, which Mr. Wilder, as guardian, paid for a house and lot which he purchased for complainant.
b — The sum of $135.10, which complainant received after she became of age.
c — The sum of $10, which is charged to the complainant by her guardian in his account filed in the probate court.
This leaves a balance due the complainant, as found by the decree, with interest, of the sum of $166.91. This amount it is adjudged the complainant recover from the estate of Myron O. Wilder, deceased, and that the defendant, John McKelvey, as executor, pay this sum out of the assets of said ■estate within 60 days, together with the costs of this suit.
From this decree the defendant appeals. The contentions •are:
1. That the court had no power to permit the amendments to the bill of complaint.
2. That the amended bill did not set forth a cause of action which gave the court of chancery jurisdiction.
The allowance of amendments on final hearing on pleadings .and proofs is very much within the discretion of the court. It appears that application was made to the court for the .allowance of the amendments to the bill, and notice given to the opposite party that an application to amend would thereafter be made to the court. At the time of this application, the proofs had already been taken, and the court was then advised of the nature of complainant's claim. Chancery Rule No. 31 authorizes and empowers amendments to be made to bills, and, as to injunction bills, it is provided by tbe rule:
But no amendment of an injunction bill shall be allowed without a special order of the court, and upon due notice to the adverse party, if he has appeared in the suit.” After the parties had been heard upon the question of amendments, the court made an order permitting the amendments to be made, as prayed by the complainant.
We think there was no abuse of discretion in permitting these amendments to be made. In Livingston v. Hayes, 43 Mich, at page 136, it was said:
“ In some very peculiar cases the court will deem it just and politic to deviate from the general rule, and will allow the complainant, on fair and equitable terms, to revise his bill, and give it anew bearing.”
The purpose of the original bill in the present case was to obtain an accounting with the guardian, the executor of the guardian’s estate being made the party defendant, because it was claimed that he held in his hands funds belonging to the complainant. By the amendment that theory is abandoned, and it is now sought to recover against the guardian’s estate upon the ground of neglect of duty in the discharge of his trust. By this amendment an accounting is also sought, not upon the claim that any portion of complainant’s money is in the hands of the defendant, but upon the theory that the guardian should have had the funds in hand, and that he would have had them had he faithfully discharged the trust; and his estate is therefore sought to be charged by reason of his negligence. The proofs disclosed, as it was thought by the court below, that the guardian had been negligent in the execution of his trust, and, in consequence, his estate was chargeable with the amount of moneys which the guardian had failed to collect from Mr. Abbey. Upon this theory the court had the power to allow the amendments under the rule, and in accordance with the settled practice in this State.
The more serious question is whether the court of chancery had jurisdiction oyer the subject-matter involved.- The guardian was entitled to receive the proceeds of the sale of the real estate in 1871. Nearly 15 years elapsed after the cause of action accrued against the administrator and his bondsmen and in favor of the guardian before complainant became of age, and, under Daniells v. Daniells, 92 Mich. 208, the statute had run against her.
It is urged by defendant that the note was not received by the guardian as payment, but that does not help complainant nor relieve the defendant.- It was the duty of the guardian within the life of the bond to have insisted upon payment over, and to have protected his ward. This he failed to do, but, instead,' extended the time to the administrator by taking his note, which he knew was not collectible, and suffered the statute to run in favor of the bondsmen and against his ward. Notwithstanding this failure,— and probably because conscious of it, — he continued to care for his ward, and, according to the decree of the court below, expended several hundred dollars more than he actually received in behalf of his ward. The guardian died. Complainant now sets up a claim against the guardian’s estate, which does not arise out of moneys received, but is in fact a claim for damages for failure to-collect, — for a breach of duty as guardian.
Neither the probate court nor a court of chancery could try that naked question. Had the guardian filed his final account, and been discharged, the ward’s remedy would have been a suit at law upon his bonds. Here, however, the guardian had not filed his final account, and it is admitted that he had expended a.large, amount in the ward’s behalf, which in some manner his estate should be allowed to set off against any claim which may be established against the estate by the ward. By her bill of complaint, complainant concedes the right of the estate to the accounting, and 'to the benefit as an offset to any suma expended in her behalf. She prays for an accounting. Conceding that the matter of the accounting is one .for the probate court, the determination of the other question is not one for that court; nor is the accounting a matter within the jurisdiction of the commissioners on claims, when coupled with the question of damages for breach of duty. The proper forum for a matter of this complex nature is one in which the entire matter can be adjusted in one proceeding, and a court of chancery is the only forum in which this can be done.
But the court below was in error in supposing that this claim so made out by the complainant was one which should be held paramount to the claims of the general creditors of the estate of the guardian. It is not so. The complainant’s claim arises out of a breach of duty on the part of the guardian. There would be some force in the position of complainant’s counsel if the guardian had actually received the money, and it was in his estate at his death. It would then be a trust, and should not be distributed to his general creditors. But here is a claim for damages purely, and an accounting. No injunction should have been awarded to tie up the guardian’s estate and prevent its distribution under these circumstances. The amount allowed by the chancery court constitutes a claim against the estate of the guardian, and must be paid ratably with the claims of other creditors.
The decree of the court below will be affirmed, except as modified by these views, with the costs of the court below to the complainant. No costs of this Court will be granted.
The other Justices concurred. | [
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Montgomery, J.
The appellant filed a petition in the circuit court in chancery of Wayne county, representing that in August,-1890, he sold watches to the men employed in defendant’s camp, and received in payment therefor a draft on defendant, in which petitioner’s agent was -named as payee, which draft read in substance:
“Pay W. A. Fulton, or order, for orders days’ labor at Memo, on bach per month, which above payee herewith accepts as below in full settlement to date.
“Amount................................i_________$441 02
“Less camp account------------------------------
“Balance due.....................................$441 02”
—And signed by A. J. Potts, foreman of defendant. The draft was indorsed, “ Payable December 11, 1890,” and on the back of this draft was also indorsed the names of the men whose accounts were drawn against to the amount charged to each.
On presentation of this order, the lumber company indorsed the draft: “Accepted. Payable on 1st or 4th of January, 1891. J. E. Potts S. & L. Co.”
The petition alleges that the total amount of said draft was deducted from the wages due or to become due to its employés named on the back of the order, and that the-deduction from the wages was charged against the account, of the men on the books of the company. The petition-further avers that by this transaction the petitioner became- and was the assignee of the laborers in and to the sums-of money mentioned, and that, as such assignee, he is entitled to all the rights of such laborers to have the claims; declared a preference, and paid out of the proceeds of the-lumber company’s estate; that the estate is insolvent; and the prayer is that the petitioner’s claim be made a preferred claim.
The answer denies that the petitioner is assignee of the claims of the employés, and alleges that there was a novation accomplished by the transaction by which the defendant lumber company assumed and agreed to pay the debts of said employés to the petitioner, whereby the debts of said defendant to said employés and the debts of said employés to said petitioner were liquidated and discharged.
The matter was heard and disposed of on the petition and answer, the circuit judge denying the prayer of the petitioner.
This ruling was correct. If it be regarded as an open question of fact as to whether there was a novation, the answer, not being controverted by proofs, was conclusive; but, as a matter of law upon the facts stated in the petition, there was a complete novation. The petition shows that the draft was accepted by petitioner as payment, and that the company accepted the draft, and charged the amount to its several employés. There was no longer the relation of debtor aud creditor between the laborers and the defendant, and the acceptance did create that relation between the payee and the company.
The petitioner relies upon the case of Carley v. Graves, 85 Mich. 483, as authority in support of his position, but that case presented a very different state of facts. The case was decided on the ground that the fund withheld was a trust fund, left on deposit for the claimant, and that the relation of debtor and creditor never existed between the defendant and the claimant. In the present case the petition avers, in legal effect, that the debt from the laborers to the petitioner was discharged. The petition recites that the draft was accepted in payment for watches sold to men in the employ of the defendant. No trust fund was left on deposit with defendant for petitioner, but, on the contrary, a term of credit was extended by accepting the draft payable January 4.
The order appealed from will be affirmed, with costs to the appellee.
The other Justices concurred. | [
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