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Long, J.
This case was in this Court on appeal from the order of the court below sustaining a demurrer to the declaration, and is reported in 83 Mich. 281. It was there said:
“If it is true that the plaintiff, while acting under the foreman or boss, ivas ordered by him to pull the coupling-pin and jump across to the other car, and, without any notice to the plaintiff, the foreman let off the brake, which suddenly accelerated the speed of the car and widened the distance which plaintiff was to jump, and the plaintiff had no knowledge or information that the brake was to be let off, and by that means the plaintiff was injured, without any fault or negligence on his part, he certainly would have the right to recover. These are questions for the jury.”
The order sustaining the demurrer was overruled, and the case sent down for trial. It has been tried, and resulted in a verdict and judgment in favor of the plaintiff. Defendant now brings error.
On the trial the defendant contended, and contends here, that there is a variance between the proofs and the declaration, and that the court below should have directed the verdict in favor of the defendant for that reason. This claim is based upon thé proposition that plaintiff’s proofs tended to show that the duties pertaining to a brakeman had nothing to do with his injuries, which, if they resulted as claimed, were owing to a subsequent and distinct order, given after the duties of brakeman were discharged, while the allegation in the declaration is that the plaintiff, being a common laborer, whose duty it was to shovel gravel, was sent to perform the duties of a brakeman, and pull a pin between two cars, and assist in separating them, and to jump from one car to another,, the distance between which was rapidly increasing by reason of the letting off of the brake by the foreman without plaintiff’s knowledge'; the real point of the claim being that the plaintiff had safely performed the work of pulling the pin, at which time his duties as brakeman ended, ■and when he jumped his duties as a common laborer had commenced. It must be confessed that this reasoning is altogether too subtle to have much weight. It is asking the court to determine as matter of law upon the facts found that up to the instant the pin was pulled plaintiff was acting in the capacity of brakeman, when at that identical moment that duty ceased, and his duty as a common laborer commenced, so that as a brakeman he pulled the pin, but in the act of jumping he was a loader of gravel.
The plain facts are that, defendant’s foreman, Moleski, had full charge of this gravel train, and complete control over every one employed working under him. He had full power to hire all laborers engaged in the work and to discharge them. To him alone could they make complaint, and he directed the movements of this train. Plaintiff was injured upon the train upon which he had been accustomed to throw gravel. The order given him by Moleski to pull the pin and jump from one car to another was obeyed, and, as plaintiff says, because he supposed he must obey the order of Moleski, or he would discharge him. Moleski himself had command and control of the brake, and when he gave the order to pull the pin and jump he knew his command would be obeyed by the plaintiff. It was one continuous act, and took but a moment of time. Moleski had put the plaintiff in a place of danger to which he was not accustomed, and for which he was not originally hired; and it cannot be said that the danger had passed, and his duties as brakeman ended, after the pin was pulled, and before he had obeyed the further order to jump to the opposite car. It was one continuous act, and we think the declaration sufficiently specific to allow the introduction of proofs made under it.
It is also contended that Moleski, in directing the plaintiff to make the jump by which he was injured, was a fellow-servant. This question was settled in Harrison v. Railroad Co., 79 Mich. 409, and we must hold Moleski as standing in the place of the master, and not as a fellow-servant.
Complaint is made of the ruling of the trial judge while plaintiff was upon the witness-stand. He had been examined through an interpreter up to the noon recess of the court, and had been questioned relative to the order given him by Moleski to pull the pin and jump from one caito another, and had testified that the brake was open before he pulled the pin or was ordered to jump, and which state of facts, it is claimed, he had testified to on a former trial. Before the court convened in the afternoon of that day, plaintiff had a consultation with his counsel, and was told by Mm that he (the plaintiff) had stated the case differently than he (the counsel) had understood it in his talk with him. The plaintiff went to the interpreter, and told him that “they had got him down wrong," meaning evidently that either the interpreter had misunderstood him, or that the court reporter had taken his testimony down erroneously. When the court convened, the plaintiff took the witness-stand, and corrected his testimony, making claim that he had been misunderstood, as he had been informed by his counsel, and then made the statement that the brake was loosened after he had pulled the pin, while he was in the act of jumping. The correction of his testimony was made against defendant’s objection. The defendant’s counsel, upon cross-examination, showed the talk had between plaintiff and his counsel during the noon hour, and offered to call the plaintiff’s counsel to show the fact. Counsel objected to being sworn in reference to the matter, and the court ruled that he could so decline. We find no error in this. Defendant’s counsel had a full and fair opportunity to cross-examine the 'plaintiff himself in reference to the whole subject-matter, and availed themselves of it. The plaintiff had a right to make correction of his testimony if he had made an erroneous statement, or had been misunderstood by the court reporter, or misinterpreted by the interpreter. It was a question of fact for the jury whether this was so or not, and to give such weight to the plaintiff’s testimony as, under the circumstances, they thought it warranted; but by no rule of practice had defendant the right to call plaintiff’s counsel to the stand against his objection, and interrogate him as to what statement he had made to his client. Counsel had not been called as a witness by either party, and was not thereafter called.
These are the principal objections argued orally before this Court. An examination of the brief of defendant's counsel shows several other objections which are argued there, all of which have been carefully examined, so that we do not think it necessary to speak of them here; and they must be overruled in view of the answers returned by the jury to the special questions propounded ‘ by defendant's counsel, as follows:
“1. Was the brake on the empty cars open before plaintiff attempted to jump?
Was the danger of plaintiff's attempting to jump from ■one car to the other such as threatened immediate injury when he started to jump?
“ 3. Was the danger of jumping from one car to the other at the time in question plain to be seen?
“4. Was the danger of being injured by attempting to jump as plain to be seen by Erickson, the plaintiff, as it was by Moleski?
“ 5. Could the danger of jumping be plainly seen by Andrew Erickson at the time he attempted to jump?”
These questions were all answered in the negative,' and 'we think determined the question that the plaintiff was not guilty of contributory negligence, as claimed.
The judgment must be affirmed, with costs.
The other Justices concurred. | [
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Grant, J.
It is stated in the commencement of the record in this case that “the following testimony was introduced, which is all that was offered by the parties.” The case appears to have been tried before the court without a jury.
Two errors are assigned: (1) That the court erred in admitting evidence, and (2) that he erred in rendering judgment for the plaintiff.
1. No exception was taken to the ruling of the court upon the evidence. Therefore such ruling cannot be reviewed in this Court.
2. No written demand for a written finding of facts and law was filed, nor did the judge make and file any such written finding. He who desires to review in this Court a judgment, wherein a trial was had before the court without a jury, and to question the conclusions reached by such court upon the facts and the law, must have a written finding, both of facts and law, and must take his exceptions thereto. Circuit Court Rules, 87-90; Griffin v. Johnson, 37 Mich. 87; Plumer v. Abbey, 39 Id. 167; Green v. Gill, 47 Id. 86; Irwin v. Schlief, 48 Id. 237; Wertin v. Crocker, 47 Id. 642; Cragin v. Gardner, 64 Id. 399; Keystone Lumber & Salt Mang. Co. v. Jenkinson, 69 Id. 220.
Hnder the present record, the judgment must be affirmed, and it is so ordered.
The other Justices concurred. | [
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Long, J.
This is an appeal from the decree of the court below sustaining a demurrer to complainant's bill, which was filed in the circuit court for Wayne county, in chancery.
The bill sets out substantially that the complainant is a corporation organized and existing under the laws of the state of Connecticut; that the G-eorge.T. Smith Middlings Purifier Company is a corporation organized under the laws of this State, with its principal office at Jackson; that on January 14, 1890, the Purifier company made a common-law assignment for the benefit of its creditors to defendants Emerson and Eldred, and that such proceedings were thereafter had in the matter that the same was removed to the circuit court for the county *of Wayne, in chancery, and is now there pending; that said Emerson and Eldred were appointed receivers in the matter of such assignment, and are now acting- as such; that the complainant is a creditor of this Purifier company in the sum of $17,761, said indebtedness accruing for material sold to the said company;, that among the assets of the Purifier company were certain, accounts against various persons throughout the United States, being debts for merchandise theretofore sold to such persons by the company, and a large part of which was uncollectible and worthless, and a part being good and collectible, and of such latter the complainant states, on information and belief, there was from $50,000 to $100,000, or thereabouts; that the total amount' of the debts of said company at the time of the assignment was about $300,000 or $400,000, and that the liquidation of the Purifier company has so far proceeded that it is charged, on information and belief, that the complainant and other creditors similarly situated will receive therefrom only a small dividend upon their claims, not over 15 or 20 per cent., unless the complainant have the relief prayed for in this bill; that among the debts against the Purifier company was one of $88,000, in favor of the Preston National Bank of Detroit, a corporation organized under the national banking law; that such bank claimed to hold as securitjr for such debt a paper in the words and figures as follows:
“Whereas, The George T. Smith Middlings Purifier Company is indebted to the Preston National Bank on its own paper, and for indorsements on commercial paper, and will hereafter be likewise indebted; and—
“Whereas, The George T. Smith Middlings Purifier Company has on its books not less than $300,000 in good and collectible accounts:
“Now, therefore, said George T. Smith Middlings Purifier Company does hereby set aside and assign to the Preston National Bank of Detroit $150,000 of such good and collectible accounts now existing, or shall hereafter accrue or be acquired in the conduct of the business of the said George T. Smith Middlings Purifier Company, which said $150,000 of the good and collectible accounts shall be held by said Preston National Bank as collateral for any indebtedness of any kind or nature which may now or hereafter be due and payable from said George T. Smith Middlings Purifier Company to said Preston National Bank of Detroit.
“The George T. Smith Middlings Purifier Co.
“By Geo. T. Smith, President and Treasurer. ■“Dated Detroit, Mich., July 10, 1889."
The complainant further charges that the Preston National Bank claimed thereunder the right to control ■and collect $150,000 of said good and collectible accounts, and, for the purpose of establishing that claim and enforcing such security, said bank, on or about March 15, 1890, filed its bill of complaint in the circuit court for Wayne •county, in chancery, against the Purifier company, Emerson, Eldred, and George T. Smith, as defendants; that answers were filed to said bill, and on August 7, 1890, a decree made which, in effect, adjudged, as against the receivers, that said bank was entitled to priority of payment over all the other creditors out of the proceeds of the collection of accounts of the Purifier company, said decree being after-wards on appeal affirmed in the Supreme Court. 84 Mich. 364.
Complainant charges in its bill that, before extending to the Purifier company the credit, it inquired concerning the assets and responsibility of said company, and it was represented to complainant by the company that it had among its assets about $500,000 or more of debts and accounts owing to it, and that its total liabilities, aside from capital stock, were less than $67,000; that such condition of things was from time to time represented to it as continuing up to the last item of credit; that the statements so made were false; that the Purifier company did not have anywhere near the amout of credits claimed, and that its debts were more than twice as large as stated; that the property of the Purifier company at the various times the complainant gave it credit consisted of three classes, — its real estate or plant, the materials and machinery manufactured or in process of manufacture, and the debts due the company; that the real estate and plant consisted .largely of special machinery adapted for the business of the company, and nothing else; that the materials and products of its manufacture were designed for special purposes only; and such plant and all other property, •except the debts due it, were of such a kind as always depreciate enormously, and in many instances prove worthless, Avhen the liquidation of the business is attempted.
It is also charged, upon information and belief, that,. Avhen the assignment of July 10, 1889, was made by George T. Smith to the Preston National Bank, it was-agreed between them that said assignment should not be-put on record or filed, or in any way be disclosed to the-public; that the same was accordingly secretly held by said bank, and its existence concealed from the commercial public, until January 11, 1890, Avhen the same was filed, in the office of the city clerk at Jackson; that such creation and holding of a secret lien upon all of the most, available property of the company, as against the complainant and others, who gave credit relying upon the-apparent ownership by the company of its accounts, was a fraud in law and in fact; and that such assignment was and is fraudulent and void, as against complainant.
It is further alleged that, during the time while said bank was so secretly holding said assignment and complainant Avas giving credit in ignorance thereof, the annual statements of said company were on file showing the ownership by it of a large amount of accounts, and said bank must have known, and complainant is informed and believes it did in fact know, that the public was giving credit to said company in reliance on the apparent OAvnership by it of said accounts; that no credit would have been given if the fact of such assignment became public; that giving publicity thereto would have the effect, as it did, to force the suspension of such company; and that it was necessary to keep such assignment secret in order that said company might continue to do business and buy of others on credit, property which in fact was used to pay said bank’s debts.
Upon information and belief it is further charged that, at the time of making the aforesaid assignment to the bank, the Purifier company Avas hopelessly insolvent, its. assets being entirely insufficient to pay its debts; that the conduct of said bank, in taking the assignment, holding the same secretly, and then enforcing the same as a lien upon the accounts subsequently accruing, was intended to, and in fact did, have the effect to take complainant’s, property and apply it to the payment of the debts to the-bank, for the reason that such subsequent accounts, upon which the lien is now claimed, were in part the product-of the resale by the Purifier company of the property sold to it by the complainant, and under the circumstances, such conduct was fraudulent against the complainant and others similarly situated.
Complainant alleges that it filed proof of its claim under the statute in the matter of such assignment 'in the office of the clerk of Jackson county, February 12, 1890. The bill then sets out many of the creditors of and the amount owing each by the Purifier company, and claims that, with respect to the matters set forth in the bill as grounds of relief, they are situated similarly to the complainant, and entitled, respectively, to the relief prayed, for the same reason that the complainant is entitled thereto; and that accordingly they have to bear their proportionate share of the expenses of this suit, and that the bill is filed in their behalf, as well as in the behalf of the complainant; but it is expressly alleged, upon information and belief, that the grounds of relief in equity herein set out are not common to all the creditors of the Purifier company.
The relief prayed for is that the receivers of the Purifier company be ordered to give no priority to the claim of the bank over the complainant, but to distribute the property and pay dividends pro rata to the complainant and the bank without regard to the assignment of July 10, 1889, whatever be the effect thereof as against the creditors in general.
The court below was not in error in sustaining the ■demurrer and dismissing complainant’s bill. The only special equity claimed by the bill is that it gave credit to the Purifier company in reliance upon the apparent ownership by that company of a large amount of accounts receivable,' and that, except for such apparent ownership, it would not have given the credit; and that the Preston National Bank, knowing that credit was being so given, concealed its agreement, and aided the Purifier company to keep up .a fictitious credit, thereby misleading complainant to its injury.
In the case referred to (Preston Nat’l Bank v. Purifier Co., 84 Mich. 364) it was settled that How. Stat. § 6193, providing for the filing of chattel mortgages, applies only to mortgages of goods and chattels which are capable of •delivery, and not to an assignment of open accounts. One •of the questions discussed in that case was whether the agreement was void as to creditors who became such between July 10, 1889, the date of the giving of the agreement referred to, and January 11, 1890, the date of filing in the city clerk’s office. It was held that, complainant in that case had a right to hold its security, and that it was not void as to creditors who became such between those dates. This was placed upon the ground that it was not such an instrument as section 6193 required to be filed in the city clerk’s office. This ruling was supported by a large number of authorities, which are cited in that case at page 388. So it appears that two questions, at least, which are raised here, were settled in that case:
1. That the agreement was not an instrument which was required to be filed under the statute as a chattel mort.gage.
2. That it was a valid and subsisting lien in the hands of the complainant, as against all creditors whose claims arose between the date of the execution and the date of ■filing.
Emerson and. Eldred, who are the receivers, as stated in the present bill, were parties defendant to that bill, and alone appealed from that decree to this Court, where the decree was affirmed.
The present bill does not allege that the complainant had any lien on the accounts, but that it relied upon the apparent ownership in the Purifier company. Every other creditor might allege the same fact. It is not claimed that the complainant made any special inquiry about the accounts, but that the annual statements filed showed the ownership. We do not think this creates any such special equity in the complainant that the matter can be taken out of the hands of the assignees or receivers, and a bill filed by a general creditor. If any equity exists in this, it is common to all the creditors.
How. Stat. § 8741, provides that—
“ Every such assignment shall confer upon such assignee the right to recover all property, or rights or equities in property, which might be reached or recovered by any of the creditors of such assignor.”
It is claimed under this statute, by counsel for defendants, that if a creditor has any special rights of his own which are peculiar to himself, that have not become a fixed lien at the time of making the assignment,-his rights are transferred to the assignee, and under the statute such special equities must be enforced through the assignee. We think counsel right in this contention. It was said in Root v. Potter, 59 Mich. 504:
“ The assignment law regards the assignee as a trustee or representative of the creditors for all purposes auxiliary to the assignment, and, if creditors could sue also, it would create great confusion.” See, also, Scott v. Chambers, 62 Mich. 532.
The complainant seeks by the present suit to enforce an equity against another creditor in the same assignment pro ceedings, without in any manner calling upon the receiver to commence proceedings for that purpose, and after the receivers have litigated the claims of the Preston National Bank through the courts, and in which the bank has sustained its claim as a lien against all the creditors generally. Complainant had filed its claim in the assignment proceedings within a month after the assignment was made, and yet in the suit against the receivers by the bank —the defendant in this bill — it does not appear that the receivers had any notice or knowledge that any of the creditors claimed any of the special equities now set up in this bill; and a general creditor cannot now litigate over again the questions settled in the former proceeding.
The decree of the court below must be affirmed.
The other Justices concurred. | [
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Montgomery, J.
The original bill was filed to foreclose a mortgage made by the defendant Charles F. Conrad and wife to Arnold Mclntire on the 25th day of August, 1873, and given to secure a promissory note of that date for $6,000, with interest at 10 per cent., payable annually, principal sum due four years after date. The mortgage 'covered an undivided one-sixth interest in certain lands in the county of Marquette, and was duly recorded. In January, 1881, Arnold Mclntire died, leaving a last will and testament, whereby, after making certain specific bequests, he bequeathed the residue of the estate to the complainant. At the date of his decease he was a resident of Tompkins county, in the state of New York. August 15, 1881, the probate court for the county of Marquette allowed this last will and testament as a foreign will, but letters testamentary were not in fact issued to the complainant until March 9, 1891, when complainant gave a bond as executor of the estate to the probate court, and letters testamentary with the will annexed were issued to him.
On November 1, 1887, the complainant assigned to the defendant Charles F. Conrad the undivided one-half interest in this note and mortgage, and this assignment was duly recorded in the office of the register of deeds. On the 23d of April, 1888, the defendant Charles F. Oonrad, without the knowledge of the complainant, executed and acknowledged a satisfaction of this mortgage, which recited that the undivided one-half interest in said mortgage had been assigned to said Charles F. Oonrad, and which said discharge was duly recorded. No part of the principal or interest secured by this, mortgage has been paid, and on the 2d day of June, 1891, the complainant filed a bill to foreclose this mortgage against the defendant Charles F. Oonrad, Mary E. Oonrad, and the Saginaw Iron Mining Company. The defendant Oonrad appeared, and put in an answer, admitting the execution of the note and mortgage, the record, and assignment to him; and set up:
1. That he had discharged the mortgage of record.
2. That the note and mortgage had been fully paid.
3. That on June 28, 1888, for the consideration of $10,000, he, together with his wife, conveyed certain lands to the complainant, upon the latter’s agreement to retain sufficient of the consideration to pay the amount due him on the mortgage and note, and to pay over the balance.
Defendant Conrad also filed a cross-bill, setting up substantially the same facts averred in his answer, and praying an accounting for the $10,000, the surrender of the note and mortgage, and a decree for the statutory penalty; and on the hearing he was further permitted to set up by way of answer and amendment to his cross-bill that Mclntire entered into a collusion and conspiracy with one Francis M. Moore to defraud and cheat defendant Conrad out of a one-sixth interest in 2,484 acres of land in the county of Marquette, described in the cross-bill, alleging that he had purchased the lands in question from Francis M. Moore, as assignee in bankruptcy of the Michigan Iron Company, and that Mr. Moore represented to Conrad that, unless he should make a sale of this one-sixth interest, he (Moore) would take away all the title which Conrad had acquired by the sale, and that defendant was induced by the fraudulent representations made by Moore, and Mclntire, as the agent of Moore, to make conveyance of the lands in question, and that Mclntire, by reason of said conspiracy and collusion, became liable to account for and pay to defendant the full value of said land, which was at the time the sum of $50,0Q0.
The case was heard upon proofs taken in open court, and a decree entered in favor of the complainant for the amount due upon the note, with interest, amounting to the sum of $9,958.06; the decree providing that the defendant Charles F. Conrad was personally liable for the payment thereof, and also providing for the usual sale on foreclosure.
1. The charge of fraud set up in the cross-bill is not sustained by the evidence. It appears that in May, 1882, Conrad executed and delivered to Moore a land contract, by which he agreed to sell to Moore an undivided one-sixth interest in the 2,484 acres of land subsequently deeded to Mclntire. On the 22d of June, 1888, Conrad and wife conveyed to Mclntire the land covered by the contract previously executed to Moore, and Mclntire after-wards conveyed to Moore. We are satisfied that the reason why this conveyance was made to Mclntire was that Mr. Conrad thought it might affect his title in some way to deed direct to Moore, by reason of the fact that Moore had sold the land to him as assignee in bankruptcy; but we are satisfied that the circuit judge was right in holding that there was not sufficient evidence of fraud, and in disallowing the claim asserted by Conrad to the purchase price of this land. It would serve no good purpose to review at length the testimony given upon this subject, but a careful examination of the record has convinced us that the circuit judge could have reached no other conclusion than he did.
2. It is claimed by the appellant that the execution of the discharge by Conrad relieved the mortgaged premises from the incumbrance, or that at least one-half the mortgage was discharged, and therefore the decree should have been against an undivided one-twelfth interest, instead of one authorizing the sale of the undivided one-sixth interest.
The assignment of the interest in the mortgage from complainant to Conrad was an assignment of “the undivided one-half of a certain indenture of mortgage, bearing date the 25th day of August, 1873, made by Charles F. Conrad and Mary E. Conrad to Arnold Mclntire, * * * * with all and singular the premises therein mentioned and described, together with one-half of the note or obligation therein also mentioned, and one-half of the moneys now due and one-half of the interest that may hereafter grow due thereon/-’ and contained the usual power of attorney, appointing the party of the second part (Conrad) true and lawful attorney of the party of the first part, — .
“ To take all lawful ways and means for the recovery of the sum or sums of money now due and owing, or hereafter to become due and owing, upon the said note and mortgage, and, in case of payment, to give acquittance or other sufficient discharge as fully as I might or could ■do if these presents were not made."
As Conrad was himself the maker of the note and mortgage, the only payment that could be referred to by this provision was a payment which he (Conrad) should make to the person entitled to receive the same; and, as no payment was made to the holder of the remaining interest in the mortgage, it follows that the condition precedent for the authority to discharge was not fulfilled. Nor do we think that the effect of this assignment was to relieve any portion of the mortgaged property from the burden of the incumbrance. Page v. Pierce, 26 N. H. 317; American Wheel Co. v. Buggy Co., 89 Mich. 15. If interests had intervened after the giving of this mortgage, so that it might be equitable for Conrad to enforce the interest in the mortgage assigned to him, he would undoubtedly have had that right, but this he never saw fit to exercise. The mortgage was but a security for the debt, and it remained, as well after as before the assignment, a security for the entire debt, — not divisible, but entire; and in any foreclosure proceeding both Conrad and Mclntire, being holders of separate interests in the mortgage, would be necessary parties.
3. It is contended that this foreclosure is barred as to the two payments of interest due August 25, 1874-, and August 25, 1875, by section 8709, How. Stat., which reads:
“No suit or proceeding shall be maintained to foreclose a mortgage on real estate, either at law or in equity, unless commenced within fifteen years from and after such mortgage shall become due and payable, or within fifteen years after tbe last payment was made on said mortgage: Provided, however, that this act shall not be construed to apply to mortgages which have been due fifteen years or more, or the last payment upon which was made fifteen years or more, prior to the passage of this act; but in all such cases no suit or proceedings shall be maintained to foreclose the same unless commenced within five years after this act shall take effect.”
When the act of 1879 took effect 15 years had not elapsed after the maturity of these claims for interest, hence the proviso of the statute is not applicable. It was held in McKisson v. Davenport, 83 Mich. 211, that, except in cases coming within the proviso of the statute, mortgages given before the act of 1879 took effect are controlled by the 20-year limitation theretofore in force. See, also, Highstone v. Franks, 93 Mich. 52.
4. Does the statute of limitations bar the right to a personal decree against defendant on the note? Dnder section 8722, How. Stat., if the person entitled to bring the action should die before the expiration of the time limited, or within 30 days after the expiration of the time, the action might be commenced by the executor or administrator of the deceased person at any time within two years after granting letters testamentary or of administration, and not afterwards, if barred by the provisions of law. A similar statute has been held to apply to a grant of ancillary letters of administration, and to extend the statute for two years from the date of their issue. Gallup v. Gallup, 11 Metc. 445. It is suggested, however, that the bill avers that the note and mortgage in question were assigned to complainant by the foreign executor; but, as to securities of this nature, such an assignment was ineffectual, as was held in Reynolds v. McMullen, 55 Mich. 568.
Tbe personal decree, however, includes the amount of the interest payment due the 25th of August, 1874, against which the statute of limitations had run prior to the ■decease of Mclntire. This is an error, and the decree .should be modified to this extent. In all other respects the decree will stand affirmed. But, as this point does not seem to have been distinctly made, we think that complainant should recover costs of both courts.
McGrath, O. J., Long and Durand, JJ., concurred. Grant, J., did not sit.
January 31, 1881, the will was admitted to probate in the surrogate’s court for Tompkins county, and letters issued to complainant as executor.
After bis appointment as executor by tbe probate court of Marquette county, complainant assigned the mortgage and note to himself as residuary legatee. | [
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Morse, C. J.
The plaintiff sued upon the following note:
“$13,000.
Detroit, October 19, 1886.
“On or before two years after date, James Jenks & Go., incorporated, promises to pay to J. A. Fay & Co., or order, twelve thousand dollars, at its office in Cincinnati, Ohio, said maker having the privilege of paying any sum at any time hereon, value received, -with 6 per cent, interest per .annum.
“James Jenks & Co., Incorporated. .
“By James Jenks, Prest.”
Indorsements:
“James Jenks.
“George A. Jenks.
“F. W. Swiet.
“Pay cashier Citizens’ National Bank, Cincinnati, Ohio, •or order. For collection.
“J. A. Fat & Co.”
At the time this note was given, the folloAving contract was entered into betAveen J. A. Fay & Co. and James Jenks •& Co.:
“This agreement, made this 19th day of October, A. D. 1886, by and between J. A. Fay & Co., a corporation organized and doing business under the laws of the state of Ohio, at the city of Cincinnati, in said state,.party of the first part, and James Jenks & Co., a corporation doing business under the laws of the State of Michigan, at Detroit, Michigan, part}*- of the second part, witnesseth.
“That whereas, the said corporation, James Jenks & Co., is noAV indebted to J. A. Fay & Co. in the sum of $23,086.21, represented by the notes of said James Jenks & Co., as follows:
Note dated July 10, 1886, due Nov. 13, 1886____ $1,686 48
Note dated Aug. 10, 1886, due Dec. 13, 1886____ 3,344 51
Note dated Sept. 10, 1886, due Jan. 13, 1887 ... 3,238 68
Note dated Oct. 19, 1886, due Feb. 22, 1887____ 2,816 54
Note dated Oot. 19, 1886, due on or before two years from date, interest at 6 per cent., with privilege of -making payments at any time, indorsed by James Jenks, George Jenks, and Frederic W. Swift............................. 12,000 00
Total....................................... $23,086 21
“ It is therefore hereby agreed, by and between the par-lies hereto, that said J. A. Fay & Co. hereby appoint said James Jenks & Co. sole agent for the exclusive sale of said J. A. Fay & Co.’s machinery in the State of Michigan, and that said J. A.' Fay & Co. shall supply, on consignment, machinery to said James Jenks & Co., as the latter may require the same for sale in its business, Avhich said machinery shall be properly insured by said JamesJenks & Co. for the benefit of said J. A. Fay & Co. Said James Jenks & Co. is to report on the 10th of each month the sales for the previous month, and give its notes, due in four months, bearing date with said report, for the amount of such monthly sales, without, interest; and in case said James Jenks & Co", shall at any time desire a renewal of any of said notes, or of the four notes first mentioned herein, said James Jenks & Co. may renew the same for the period of four months, with six per cent, interest, by giving thereon the indorsements of said J ames Jenks, George A. Jenks, and Frederic W. Swift, who are the stockholders of said James Jenks & Co. A second renewal of any note shall only be allowed by special arrangement with said Fay & Co.; and it is further agreed that, in case of failure to pay any renewed note at maturity, said J. A. Fay & Co. shall have the option to declare all indebtedness of said James Jenks & Co. to it due and payable forthwith, including said note for $12,000.00, and also to declare said agency at an end.
. “In witness whereof the said parties hereto have affixed their official signatures the day and year first above written.
“J. A. Fat & Co.,
“By W. H. Doane, President.
“James Jenks & Co.,
“By James Jenks, President.”
The note and contract executed at the same time, and given in consideration of each other, are parts of the same transaction, and must be construed together. This note, with others, was given to secure the past indebtedness of James Jenks & Co. The defendants James Jenks, George A. Jenks, and Frederic W. Swift, the indorsers upon this note, were substantially the only stockholders of James Jenks & Co. Mr. Swift claims that he would not have indorsed the note except for the contract, upon which he relied in making his indorsement. "Upon the refusal of Mr. Swift, to indorse a renewal note for this $12,000 note, Fay & Co. declared the agency at an end, and removed its machinery then on hand from the possession of Jenks & Co.
The defense made against' this note by the indorsers was -that Fay & Co. had violated the contract by selling'- its machinery to other parties in Michigan, through other agencies than Jenks & Co., and that, by such violation ■of the contract, the indorsers, who were sureties, were released. The circuit judge held that the indorsers stood in the relation of sureties, but that they would not be released from liability by the sales of machinery by the plaintiff, or by its branch house in Chicago, to residents ■of Michigan, nor by the cancellation of the agency, and the removal of the machinery, upon the refusal of the indorsers to renew this note; that the defendants would •only be entitled to deduct from the amount of the note the damages arising from such sales. The jury must have found that the plaintiff violated the agreement as to the exclusive agency, as they made a reduction from the amount of the note and interest.
There is no doubt that, as against James Jenks & Co., the maker of the note, the plaintiff had a right to declare the agency at an end when any one of the indorsers refused to renew this note, and it was not paid when due. This we held in Fay v. Jenks, 78 Mich. 304. We also held, •as against Jenks & Co., that if the contract had been violated, defendant was only entitled to damages in reduction of the amount of the note, and that such violation ■of the agreement did not affect the validity of the note, which was given for the past indebtedness of James Jenks & Co. But our opinion in- that case does not affect the ■question here raised by the Sureties.
It is claimed by Mr. Swift that he indorsed this note relying upon the consideration that the condition of the contract would be strictly performed by Fay & Co. It must be remembered that Mr. Swift and the other indorsers were not personally liable for this debt of $12,000. This was the debt of the corporation, Jenks & Co. They became liable individually-only by virtue of their indorse ments. If the plaintiff had violated the agreement as to-the exclusive agency of the sale of machinery in Michigan, without the consent of Col. Swift, the question arises' whether Swift was obligated to renew his indorsement of' the note, or to pay it. It is evident from the testimony that Col. Swift was induced to indorse this note upon some promise or reliance other than the fact that he was-a stockholder in Jenks & Co. He had resigned his office-in the corporation as treasurer, and withdrawn from active-participation in the business, being satisfied that the concern was losing money. The president and secretary of the plaintiff company came to Detroit, and, after several days of negotiation, this contract and note were made, and Swift indorsed the note. He claims that he did it in reliance upon the contract, and the belief induced by the-plaintiff’s officers that, if the contract was fulfilled by the plaintiff, the business could be made profitable, and the old indebtedness to Fay & Co., then amounting to over $23,000, would.be liquidated. If Swift’s claim that he-relied upon this contract, and would not have indorsed the note but for it, and the contract was violated before he-refused to pay or renew the note, is maintained, what are-his rights in the premises? This is the question to be here determined. The counsel for plaintiff are mistaken in their supposition that Col. Swift is defending this note upon the ground that there has been a partial failure of consideration to the original maker, and that the cases-bearing upon such a defense are applicable here. The defense is that he became a surety — indorsed the note— upon condition that the contract, which was a part of the same transaction as the indorsement, should be fulfilled by the plaintiff; and that, by a violation of such contract in reference to exclusive agency, the surety has been released. It is the general rule that, if the condition upon which the surety signs is not complied with, he is not bound. Brandt, Sur. § 403; Burge, Sur. p. 115. In this case the condition that Jenks & Co. should have the exclusive sale of plaintiff’s machinery in Michigan was a vital part of the contract. Upon this assurance the indorsers had a right to rest. It can make no difference as to the extent of sales in violation of this condition of the agreement. If such sales were made without the consent of the indorsers, and without any subsequent waiver of their rights under the contract, courts will not stop to inquire into the amount of damage that may have been done by such sales. The fact that one sale has been made violates the contract, and destroys the condition upon which the indorsements were made, and releases the sureties. See Hall v. Parker, 37 Mich. 590; Johnston v. Township of Kimball, 39 Id. 187; Hessell v. Johnson, 63 Id. 623.
We do not deem it necessary to examine the other allegations of error.
The judgment will be reversed, and a new trial granted, with costs to the defendant indorsers.
McGrath, Long, and Montgomery, JJ., concurred. Grant, J., did not sit. | [
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] |
McGrath, C. J.
Plaintiff had his arm caught between two dead-woods while attempting to draw a coupling pin. He stepped in between the cars while the slack was being given in order to enable him to draw the pin. No claim is made that the road-bed or draw-bars or dead-woods were defective or out of order.
Plaintiff was between 23 and 24 years of age at the time of his employment. He had never had any experience as. brakeman, but had lived in the vicinity of a railroad station, and was frequently at the station and around the cars while they were being handled 'at the station. He had, within six or eight weeks prior to his employment, applied two or three times to one Bryant, a station agent, to get him a position as brakeman. The agent had no authority to employ him. On the 23d day of February, 1890, plaintiff was engaged at Brent Creek, a station just north of Flushing, in loading some logs for a shipper. After the logs were loaded, plaintiff rode to Flushing on the train with the logs, and he claims to have applied to the conductor of that train for employment as brakeman, but the conductor informed him that he had no authority to take him on in the capacity of brakeman. When the train arrived at Flushing, the conductor reported by wire to Mr. Gardner, the manager at Saginaw, that he was short one brakeman. Bryant sent the message, and testifies respecting the hiring as follows:
“I think as I sent that message in to Mr. Gardner he was at the wire on the other end. I think he told me to tell Mr. Hanson that he would have a brakeman for him when he came in that night. Then I spoke to Mr. Gardner, and says, ‘ There is a young man here that would like to go on braking.’ I think the conversation was like this: ‘Tell Mr. Hanson to take'him on.’”
Bryant also testifies that he—
“ Saw him around the depot a good deal where they were switching, and working around there. He had been around the depot more or less ever since I had been there, and I thought probably he would make a good brakeman.”
The conductor took plaintiff on, and the train went to Durand that night, and remained there until the next morning. The conductor says:
“I told him I didn’t want him to do any coupling or anything until he got onto it; to watch us fellows what we did for a few days, and he could get the hang of things, and he would be all right.”
The other brakeman, Davit, who was upon the train, says:
“I told him he wanted to be very careful. He had been riding around on them cars all day that didn’t have any dead-woods whatever. I says: So you are going to work here? You want to be very careful, and not get hurt.’ I told him not to take any chances whatever. ‘ Be very careful about the dead-woods on the cars, as we handle all kinds of cars.’”
In the morning, at Durand, plaintiff was sent to flag a train, and then to locate other cars that were to be taken <on at that point. Several cars were pulled out, Davit doing the coupling and uncoupling. Plaintiff says he was there, but did not cut off the cars; that he didn’t see 'Davit do it; that he didn’t look, and “don’t know why” he did not; that the reason why he did not observe how it was done was that he was not instructed to. Finally 'they (Davit and plaintiff) were sent after a car which was upon a side track. Plaintiff opened the switch, and Davit made the coupling, threw the switch after the car was pulled out upon the main track, and, giving the signal for slack, told plaintiff to pull the pin. Plaintiff stepped in between the cars to pull the pin, and his arm was caught between the dead-woods.
Plaintiff’s claim is that he had had no experience; that he had informed both Bryant and the conductor, when he applied to them for employment, that he had had no •experience; and that it was the duty of defendant to instruct him before sending him to couple or uncouple cars. Both Bryant and the conductor deny he so informed them, but the case must be determined here upon plaintiff’s testimony.
It is not necessary to determine whether the knowledge possessed by Bryant, to whom plaintiff had several times .-applied for a position, was the knowledge of the company; but conceding, for the purposes of this case, that it was, it by no means follows that the defendant must be held liable. Plaintiff was not an infant, nor a person of weak intellect. He was of mature age, possessed of all his faculties, and did not lack ordinary intelligence. He applied, not for an unnamed position, but for employment as brakeman. He sought the employment voluntarily. He was his own master, unfettered by anything except consideration for his own interests, which prompted him to seek and enter upon the employment, and to incur its hazards. The position sought is ordinarily deemed and commonly regarded to be one of danger. In the course of the employment, •cars are to be coupled and uncoupled, coupling pins are to be inserted and withdrawn in the presence of draw-bars .and dead-woods. The danger is not concealed, but appar■ent. Plaintiff was exposed to no extra hazard, nor set at work which he had not sought and engaged to do. The business required no special skill or training to foresee that it was dangerous, and the injury was caused by a condition that was apparent. The books make a clear distinction between cases where risks are voluntarily assumed, and those where the servant acts under orders or defers to ■the superior judgment of the master. Plaintiff must be held to have assumed the ordinary risk of the employment. He cannot now be heard to say to defendant:
“1 sought the position with a full knowledge of my inexperience, but you knew of my inexperience, and therefore insured me against injury. I solicited the service, but you took all the chances. You owed me a duty, but I owed none to myself. You were negligent; but, although I sought this very employment, knowing that it was a -dangerous one, and that I had no previous experience in .it, I am free from fault."
The judgment must be reversed, and a new trial granted.
The other Justices concurred. | [
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] |
Durand, J.
On January 2, 1888, the defendant, in consideration of $15, charged as a premium, issued its policy of insurance to the heirs of the estate of Eugene Weatherwax, insuring them for three years against loss or ■damage by fire to the amount of $1,500, being $1,000 on a dwelling-house and $500 on a barn, situated on property which was owned by Eugene Weatherwax at the time of his death. He died intestate, and at the time of his death he left surviving him as his sole heirs his two children, Don E. and Jessie E. Weatherwax, then infants of tender years, to whom the insured property descended, subject to the dower interest of his widow, Mary E. Weatherwax. The widow, with the advice and assistance of relatives, among whom was the uncle of the children, J. Weatherwax, looked after the children and their estate as any prudent and loving mother would do. The J. Weatherwax referred to was the agent of the defendant company at the time the policy was issued. He knew the exact condition of the title, and that the two children spoken of as heirs of Eugene Weatherwax were the owners of the fee of the property, and that the widow, who was their mother, owned a dower interest therein. At that time these infants had no legally appointed guardian, and the application for the insurance in their behalf was signed by the mother, under the advice and direction of J. Weatherwax, the agent of the defendant company.
In September, 1890, Mary E. Weatherwax, by the advice and direction of a Mr. Hall, who was her uncle, and knew about the title and condition of the property, and who was at the time an agent of the Rochester German Insurance Company, obtained an insurance to herself on the .property above referred to, and upon other personal property belonging to her, for an amount not exceeding $2,200, and not exceeding the interest of the insured in the property covered by the policy.
On November 4, 1890, the barn burned. The agent of the Rochester German Insurance Company, upon hearing of the loss, went to the house of Mrs. Weatherwax, and told her that he did not think his company was obliged to pay anything on its policy, but he was a friend of hers, and wanted no trouble, and he would return her the premium, and pay $350, if she would accept it, and cancel the policy issued by the Rochester German Insurance Company. This she consented to do, and the matter, so far as that company was concerned, was then and there ended.
Proofs of loss in behalf of the heirs of Eugene Weather-wax were made and presented to the defendant company, and it declined to pay the loss. Herbert Haire was then duly appointed the legal guardian of the infant heirs, Don. E. and Jessie E. Weatherwax, and this suit was brought by him, as such guardian, to recover against the defendant company on the policy first referred to for the loss sustained.
The defendant contends that the policy in suit is void, because in the application signed by Mary E. Weather-wax slie stated that the heirs of Eugene Weatherwax owned the property in fee-simple, and that it was unincumbered, when in truth and in fact she, as widow, held a dower interest in it; and also that because she stated in the proofs of loss that the subsequent insurance in the Rochester German Insurance Company was on her dower interest, and that she had not procured any insurance upon the heirs' interest in the property subsequent to the one issued by the defendant company, the policy is forfeited under a clause contained in it, which provides that—
“Any misrepresentation, concealment, or false swearing in any statement or affidavit in relation to loss or damage shall cause a forfeiture of all claims under this policy.''
No suspicious circumstances were developed in relation to the fire, or what caused it, and no claim that it was not a Iona fide loss was made; nor was there any contention that the loss on the barn did not equal or exceed the amount for which it was insured. Under these facts the circuit judge directed the jury to find a verdict for the plaintiff for the amount of the loss ou the barn as expressed in the policy, amounting, with interest, to the sum of $524.33. The defendant claims error.
We think the circuit judge was right. The heirs of Eugene Weatherwax, to whom this policy was issued, were the owners of the fee. There was no incumbrance ujoon the property. The only claim against it was the dower interest which the widow held in it, and of which the agent of the defendant company had full knowledge at the time he issued the policy and accepted the premium from her in behalf of the defendant. His knowledge must be considered as the knowledge of the company, and binding upon it; and it would be a gross injustice to permit the defendant, under such circumstances, to take the money of the insured, giving them to understand that the insurance is valid, and, when a loss occurs, repudiate the contract because of a technical variance from its conditions, but of which it, by its agent, had full knowledge; especially while at the same time it retains the money paid to it for a supposedly valid insurance. Such a rule would be unsafe and inequitable, and would enable the defendant to consider the contract good in so far as it contributes to its advantage, and to repudiate it when a loss occurs.
Neither do we think the policy of the Rochester German Insurance Company to Mary E. Weatherwax avoids the loolicy in suit. It was not a policy to the heirs of Eugene Weatherwax, and, so far as appears, they had no knowledge of it, and, if they had, it would not have deprived them of their rights under this policy. They could not prevent her from obtaining insurance upon her dower interest in this property. She had a right to do so if she chose, and it must be held as well-settled law that, in order to assert a forfeiture of this first policy, the second policy must have been made to the same persons mentioned in the first policy, and on the same interest in the same property. 7 Amer. & Eng. Enc. Law, 1015; Carpenter v. Insurance Co., 61 Mich. 635; Guest v. Insurance Co., 66 Id. 98; Hall v. Insurance Co., 93 Id. 184.
This must dispose of the -case in favor of the plaintiff. Some points were raised upon the trial in reference to the admission of certain testimony offered, but as, under the view we have taken, they are immaterial, they will not be noticed.
The judgment of the circuit court will be affirmed, with costs of this Court.
The other Justices concurred. | [
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] |
Montgomery, J.
The plaintiff and several other residents of Mason paid into the defendant's hands sums of money aggregating $2,500 for the purpose of aiding in the building of an hotel, under an agreement fully set out in Near v. Donnelly, 80 Mich. 132. The plaintiff's subscription amounted to $500. The defendant, in consideration of this subscription, agreed to build the hotel, and on its completion to furnish and keep the same as an hotel, and to pay to each of the subscribers 7 per cent, per annum upon the amount invested by each as long as they should continue to own the same.
This action was brought to recover an installment of interest accruing from August 22, 1890, to April 1, 1891. It appears that the defendant has occupied the hotel, and the obligation to pay 7 per cent, on this contribution is within the express terms of the agreement. But a single question is presented, and this is whether the obligation of this agreement has been merged in the decree rendered in the former case.
The plaintiff, who held assignments from the other contributors, filed a bill asking to have the amount of such subscriptions declared a lien upon the hotel property. This relief was ultimately denied him, but he was given a decree declaring the installments of interest then due a lien on the undivided five-eighteenths part of the hotel property, and also declaring that this sum was due and owing to him from the defendant. It' does not appear, however, that any sale has been made under the decree; on the contrary, defendant has been permitted to occupy the hotel, and has refused to pay the installments of 7 per cent, subsequently accruing as per agreement.
There was no such merger by the decree as prevents the plaintiff from maintaining this action. It is true that he has a decree for certain installments of interest accrued under' the agreement prior to August 22, 1890, but the case is not different from one where a recovery is had upon one installment of a note, or for an installment of rent due on a lease. In neither case is there such a merger worked as prevents a recovery for installments subsequently falling due. Jacobson v. Miller, 41 Mich. 90.
Judgment will be affirmed, with costs.
The other Justices concurred. | [
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FER CURIAM.
Flaintiff Lisa Brown appeals as of right the circuit court’s order granting summary disposition to defendant Samuel Whittar Steel, Inc. (Whittar). We reverse.
I. BASIC PACTS AND PROCEDURAL HISTORY
This case arises from a sexual assault that took place on Whittar’s premises. Lisa Brown was employed by a security company and assigned to Whittar as a security guard. Defendant Michael Brown (no relation to Lisa Brown) worked for Whittar as a foreman. Lisa Brown alleged that while both were on duty, Michael Brown sexually assaulted her.
Michael Brown was charged with criminal sexual conduct in the third degree, but, pursuant to an agreement, pleaded no contest to a reduced charge of attempted third-degree criminal sexual conduct. In that proceeding, Michael Brown’s lawyer agreed with the prosecutor’s assertion that “on the date of November 17th of the year 2000 at the address of 20001 Sherwood Avenue in the City of Detroit, . . . the defendant, Michael Brown, did attempt to forcibly put his penis into the vagina of Lisa Brown.”
Lisa Brown commenced a civil suit, pursuing Whittar on theories of vicarious liability and negligence for Michael Brown’s assault and battery. Whittar moved for summary disposition, but the trial court initially denied the motion on the ground that “for purposes of this motion,.. . Whittar was on notice that there was a likelihood that [Lisa Brown] could have been in danger with Michael Brown because she had reported it three times to them.”
Just before trial, however, the trial court granted Whittar’s renewed motion for summary disposition. The trial court stated as follows:
The ultimate question for this Court is whether or not the employer, Whittar Steel is liable for the unforeseen criminal acts of an employee....
Based upon everything that I have read with regard to this case including the testimony of [Lisa Brown], the Court is of the opinion that the employment of [Michael] Brown merely gave rise to an opportunity to commit the crime. [I]t was not within the scope of his employment as has been conceded by [Lisa Brown’s] counsel. There was no benefit to Whittar Steel.
In terms of [Michael] Brown raping [Lisa Browm], it [was] purely for his own personal interest and gratification and had nothing to do with the business of the employer. That being the situation, the Court is of the opinion that as it relates to the Whittar Steel, the motion for summary disposition should be and it is granted. There is no genuine issue of material fact.
II. VICARIOUS LIABILITY
A. STANDARD OF REVIEW
We review de novo a trial court’s decision on a motion for summary disposition. “In reviewing a motion under MCR 2.116(0(10), this Court considers the pleadings, admissions, affidavits, and other relevant documentary evidence of record in the light most favorable to the nonmoving party to determine whether any genuine issue of material fact exists to warrant a trial.”
B. SCOPE OF EMPLOYMENT
Lisa Brown states in her brief on appeal that she is not appealing her claim relating to the agency relationship between Michael Brown and Whittar, yet she refers to that doctrine in the course of framing her sole issue on appeal. However, this is not a civil rights action concerning sexual harassment. Rather, it is one involving claims of common-law negligence and assault and battery. In the argument section of her brief on appeal, Lisa Brown nowhere asserts that, let alone explains how, Michael Brown’s sexual aggression against her fell within the scope of his employment. In fact, Lisa Brown’s attorney in this case explicitly conceded that “raping somebody is outside of the scope of employment.” For these reasons, we will consider Lisa Brown’s arguments on appeal only in connection with her negligence claim against Whittar.
III. NEGLIGENCE
A. STANDARD OF REVIEW
As stated above, we review de novo a trial court’s decision on a motion for summary disposition, and in reviewing a motion under MCR 2.116(C)(10), we consider the pleadings, admissions, affidavits, and other relevant documentary evidence of record in the light most favorable to the nonmoving party to determine whether any genuine issue of material fact exists to warrant a trial.
B. ELEMENTS OF ACTIONABLE NEGLIGENCE
In order for a plaintiff to establish a prima facie case of negligence, the plaintiff must prove four elements: that the defendant owed a duty to the plaintiff, that the defendant breached that duty, that the defendant’s breach of duty was the proximate cause of the plaintiff s damages, and that the plaintiff suffered damages. Generally, an individual — and presumably an individual employer or corporate employer — has no duty to protect another who is endangered by a third person’s conduct. The existence of a duty is a question of law for the court to decide.
C. THE “VIOLENT PROPENSITY” EXCEPTION
(1) HERSH
There are circumstances, however, in which an employer has a duty to protect an individual from harm by an employee. In particular, as the Supreme Court outlined in Hersh v Kentfield Builders, Inc, an employer may share liability for intentional torts committed by an employee who is acting beyond the scope of employment if the employer knew, or should have known, of the employee’s violent propensities.
Hersh involved a situation in which Benton Hutchinson, an employee of the defendant Kentfield Builders, attacked the plaintiff, Melvin Hersh, while Hersh was visiting a model home to keep a business appointment with Kentfield Builders’s president. Hutchinson had a criminal record, about which Kentfield Builders had some knowledge, and he was later committed to a hospital for the criminally insane.
The Supreme Court, in reversing the Court of Appeals, quoted headnote 2 of Bradley v Stevens for the proposition that
“[a]n employer who knew or should have known of his employee’s propensities and criminal record before the commission of an intentional tort by employee upon customer who came to employer’s place of business would be liable for damages to such customer.”
The Supreme Court also quoted § 9 of 34 ALR2d 372, 390 as indicating that
“[t]he employer’s knowledge of past acts of impropriety, violence, or disorder on the part of the employee is generally considered sufficient to forewarn the employer who selects or retains such employee in his service that he may eventually commit an assault, although not every infirmity of character, such, for example, as dishonesty or querulousness, will lead to such result.”
Thus, under Hersh, with respect to an employee with a criminal record, possibly even involving a “crime of violence,” about which the employer had some knowledge, “[w]hether the employer knew or should have known of [an employee’s] vicious propensities should not be determined by any court as a matter of law, but by the jury.”
(2) COURT OF APPEALS CASES
This Court has also considered the violent propensity exception. In Samson v Saginaw Professional Bldg, Inc, a divided panel dealt with a situation in which plaintiff Carol Samson, an employee of an attorney with offices in a building owned by defendant Saginaw Professional Building, Inc., was attacked with a knife by Donald Butzin. Butzin was an outpatient of another tenant of the building, the Saginaw Valley Consultation Center. Butzin had previously used a knife in another attack and had been sent to a juvenile home as well as being committed to the Traverse City State Hospital. To paraphrase the dissent, the issue before this Court was whether the corporate defendant, Saginaw Professional Building, Inc., knew or should have known of Butzin’s “vicious propensities.”
The majority, while acknowledging that the relationship between the parties was tangential, that the causation chain was attenuated, and that the situation involved the “quagmire of foreseeability,” found that the “the developing case law in this area” supported imposition of a duty on Saginaw Professional Building, Inc. The majority found that the leasing agent and the principal stockholder of Saginaw Professional Building, Inc., “had actual knowledge that mental patients would visit the Saginaw Consultation Center daily for treatment.” Further, the leasing agent conceded that female workers in the building were fearful and apprehensive about the patients’ presence in the building. The majority reasoned that common knowledge “that assaults and homicides are committed by mental patients while on convalescent leave” should have placed Saginaw Professional Building, Inc., on notice “that a possible dangerous condition may exist.” The majority went on to state:
Many patients sire simply mentally deficient or retarded and present no unreasonable threat to the community in which they are released. Others possessing a propensity for violence, as evidenced by prior violent conduct toward others, may present a hazard. The fact that the consultation center would be treating mental patients and the fact that those patients with a propensity to be violent present a risk created sufficient knowledge to require defendant to inquire further to determine the type of patients that would visit its building with regularity. After evaluating the competing considerations, we do not find that such inquiry created an undue burden upon defendant. The present record indicates that defendant absolutely failed to make such further inquiry and this failing may well be sufficient to support a finding of negligence. Had defendant conducted such inquiry the risk would have become sufficiently foreseeable to reveal defendant’s duty to adequately protect the employees of other tenants on the premises.
Thus, in Samson there was no indication that Saginaw Professional Building, Inc., actually knew of Butzin’s past violent acts or of his incarceration or commitment. Nevertheless, the majority found that “[w]hether the assault by a mental patient with a history of violence was a reasonably foreseeable consequence of [Saginaw Professional Building, Inc.’s] failure to discover that a tenant was treating mental patients with such histories and to take reasonable precautions . . . was a question for the jury.”
Several years later, however, another panel of this Court had an entirely different take on a somewhat similar situation. In Tyus v Booth, Flozelle Nails, an employee at a service station owned by the defendant, Tom Booth, committed unprovoked assaults on the plaintiffs, Bernard and Robert Tyus. Apparently, Nails had a criminal record. However, there was no evidence that Booth actually knew of Nails’s prior assault convictions. The trial court dismissed the Tyuses’ negligence action, and this Court upheld that dismissal, holding that an employer is not obliged to “conduct an in-depth background investigation of his employee” to discover whether there is a history of violent propensities. Rather, “[t]he duty is to use reasonable care to assure that the employee known to have violent propensities is not unreasonably exposed to the public.” Thus, while Samson imposed a duty of further inquiry under the factual circumstances of that case, Tyus imposed no such duty even though the employee in Tyus who committed the violent acts in question also apparently had some history of such violent acts.
D. DELINEATING THE ISSUE
The factual circumstances of this case are considerably different from the preceding cases. There is no evidence that we can find in the record that Michael Brown had any criminal convictions or any history of prior violent acts. Rather, Lisa Brown’s theory of liability is premised not on what Michael Brown did to other women in the past or, indeed, even what he did to her in the past. Rather, Lisa Brown premises her negligence action on the theory that Whittar knew or should have known of Michael Brown’s propensity for violence on the basis of what he said to her.
In this regard, Lisa Brown alleges that Michael Brown made a number of sexually aggressive and predatory statements to her, statements that she reported to Whittar’s plant manager, Harlan Gardner. Specifically, Lisa Brown stated in her deposition that Michael Brown said that he “would want to f — k me and pull my long hair,” that “[h]e liked how I shaked my ass,” and that “I had big tits and just all the terrible things like that.”
However, Lisa Brown also indicated that she feared no violence from Michael Brown up to the moment the sexual assault occurred. She testified that, despite having complained about Michael Brown’s sexually suggestive comments, she was not concerned that he would physically assault her. Thus, Lisa Brown is asserting that Whittar should have recognized and protected her from the hazard of Michael Brown’s sexual predations at a time when she herself apparently felt no such threat.
Further, we note that we must resist the trap of fallacious reasoning that because Michael Brown sexually assaulted Lisa Brown, Whittar must have known of his propensity for violence. Rather, we must determine whether, on the basis of Michael Brown’s words — and his words alone — before the assault, Whittar knew or should have known of Michael Brown’s violent propensities. Thus, the situation here is unlike that in Hersh, Samson, and Tyus, in which the employees who committed the assaults all had a history of prior violent acts. We must decide, in a case of first impression, whether sexually aggressive and predatory words are sufficient to put an employer on notice of its employee’s propensity for violence.
The crude comments made by Michael Brown to Lisa Brown did not have time certainty associated with them. Most would agree, for example, that had Michael Brown said to Lisa Brown, “The next time we are alone, I’m going to rape you,” and had Lisa Brown immediately reported this threat to the plant manager, these words, although accompanied by no overt act, would be sufficient to put Whittar on notice of Michael Brown’s violent propensities. But Michael Brown did not use these words. Rather he said that he “would want to f — k” Lisa Brown and pull her long hair, that he “liked how [she] shaked [her] ass,” and that she “had big tits” and “all the terrible things like that.” The narrow question before us, therefore, is whether these words, after Lisa Brown reported them, were sufficient to put Whittar on notice of Michael Brown’s violent propensities.
In deciding this question, we acknowledge that derogatory comments about women and crude sexual references about women are, unfortunately, made at times in our society.
However, in this case, we find that the language and the circumstances were sufficient to create a jury question regarding whether Whittar knew or should have known of Michael Brown’s violent propensities. Although Michael Brown, before the assault, apparently never touched Lisa Brown, he told her in graphic terms what he liked about her sexually and what he wanted to do to her sexually. He made these statements repeatedly, and he made them from a position of power as a foreman in Whittar’s plant. His words were redolent with crude sexual aggression, and he used them with apparent reckless disregard of the consequences. There is no question that Lisa Brown was sufficiently alarmed that she reported Michael Brown’s statements to Whit-tar’s plant manager.
Clearly, Lisa Brown did not specifically foresee that Michael Brown would sexually assault her. Had she been able to predict the future, the assault likely would never have occurred. But there is no requirement that Lisa Brown be able to predict the future. Nor is there a requirement, in Hersh or elsewhere, that an employer must know that the employee had a propensity to commit the actual crime that occurred. Rather, it is sufficient under Hersh if the employer knew of the employee’s “impropriety, violence, or disorder,” in short, whether the employer could have reasonably foreseen the employee’s “violent propensity,” that is, his or her “natural inclination or tendency” to violence. Given what Michael Brown said to Lisa Brown and what Lisa Brown reported to Whittar’s plant manager, we conclude that a jury could find that Whittar should have, under these circumstances, known of Michael Brown’s propensity for sexual violence. There was, therefore, a genuine issue of material fact, and the trial court erred when it granted summary disposition on Lisa Brown’s negligence claim. The question whether Whittar knew or should have known of Michael Brown’s vicious propensities should not have been determined by the trial court as a matter of law, but by the jury.
Reversed and remanded for further proceedings. We do not retain jurisdiction.
MCL 750.520d.
Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003).
Walsh v Taylor, 263 Mich App 618, 621; 689 NW2d 506 (2004).
“An employer is liable for the intentional tort of his employee if the tort is committed in the course and within the scope of the employee’s employment.” Bryant v Brannen, 180 Mich App 87, 98; 446 NW2d 847 (1989). Accordingly, “[a]n employer is not hable ... if the employee does the act while engaged in the employer’s work, but outside of his authority.” Id.
Dressel, supra at 561.
Walsh, supra at 621.
Chivas v Koehler, 182 Mich App 467, 475; 453 NW2d 264 (1990).
Murdock v Higgins, 454 Mich 46, 54; 559 NW2d 639 (1997).
Id. at 53.
Hersh v Kentfield Builders, Inc, 385 Mich 410, 412-413; 189 NW2d 286 (1971).
Id. at 411.
Id. at 413.
Id. at 412.
Bradley v Stevens, 329 Mich 556; 46 NW2d 382 (1951).
15 Hersh, supra at 412.
16 Id. at 413.
Id. at 415.
Samson v Saginaw Professional Bldg, Inc, 44 Mich App 658; 205 NW2d 833 (1973), aff d 393 Mich 393 (1975).
Id. at 671 (Danhof, EJ., dissenting).
Id. at 672.
Id.
Id. at 661 (emphasis in original).
Id. at 667.
Id. at 663.
Id.
Id. at 663-664.
27 Id. at 664-665.
Id. at 669.
Tyus v Booth, 64 Mich App 88, 89; 235 NW2d 69 (1975).
Id. at 91.
Id. at 92.
Id.
Hersh, supra at 413.
See Random House Webster’s College Dictionary (2001), which defines “propensity” as “a natural inclination or tendency.”
See Hersh, supra at 415. See also Duran v Furr’s Supermarkets, Inc, 921 SW2d 778, 790-791 (Tex App, 1996) (concluding that a factual question was raised regarding whether knowledge of the employee’s prior use of abusive language would put a reasonable person on notice that the employee’s verbal abuse of a store patron might escalate into a physical assault). But see Thatcher v Brennan, 657 F Supp 6, 11 (SD Miss, 1986) (“It is not sufficient that the plaintiff prove a mere possibility of violence.... Rather, there must he proof that the employee/assailant was a person of known vicious character or one whom the employer should have known had a vicious character.”). | [
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NEFF, J.
In these consolidated appeals involving a wrongful death medical malpractice action, defendants appeal by leave granted an order of the trial court denying their motions for summary disposition pursuant to MCR 2.116(C)(7) on the grounds that plaintiffs action was time-barred. Dr. Srinibas Mahapatra also challenges on cross-appeal the order denying summary disposition. We affirm, although not on the basis cited by the trial court.
i
This case is one of numerous appeals prompted by the Michigan Supreme Court’s decision in Waltz v Wyse, 469 Mich 642, 648-650; 677 NW2d 813 (2004), and, more particularly, this Court’s decision in Ousley v McLaren, 264 Mich App 486, 494-495; 691 NW2d 817 (2004), which determined that Waltz warrants retroactive application. The question in this case is whether plaintiffs wrongful death medical malpractice action is properly dismissed after the decision in Waltz because the 182-day statutory tolling period, MCL 600.5856, on which plaintiff relied in calculating the period of limitations for filing her action was no longer applicable, and thus the saving period for filing a wrongful death action, MCL 600.5852, expired during the required 182-day statutory notice period for filing a medical malpractice action, MCL 600.2912b. We conclude that principles of equity require affirmance under the circumstances of this case.
ii
In Waltz, the Supreme Court held that wrongful death actions filed by personal representatives under MCL 600.5852 were subject to the 182-day statutory waiting period for filing a medical malpractice action, MCL 600.2912b(l), but were not entitled to the concomitant 182-day statutory tolling of the limitations period under MCL 600.5856. Before the decision in Waltz, the bench and bar in Michigan, including a significant portion of this Court, generally functioned with the understanding that the notice period and the notice tolling provision operated together so that the two-year saving period permitted for filing a wrongful death action by a personal representative would be tolled during the 182-day waiting period. Consequently, after the decision in Ousley holding that Waltz applied retroactively, numerous cases pending in the lower courts were summarily dismissed as time-barred because the plaintiffs had filed the actions presuming a statutory tolling period, which under Waltz no longer applied. Like the proverbial deer in the headlights, the plaintiffs’ causes of action have been frozen in time and space by the retroactive application of Waltz by Ousley, leaving them with no recourse or remedy.
The legal fallout from the decision in Waltz has been significant. This Court has been presented with numerous appeals of nearly identical issues of time-bar dismissal, all disputing the correctness and reach of Waltz and its progeny. These issues have consumed inordinate time and effort on the part of the bench and bar at various levels. For defense counsel, Waltz and Ousley were essentially a windfall in pending cases. For the plaintiffs’ counsel, and their clients, the decisions had serious repercussions.
Viewing Waltz and Ousley as correct, the fact that so many members of this state’s bench and bar committed such rudimentary errors would be a discredit to the profession. Viewing Waltz or Ousley as incorrect, the fact that members of the bench and bar can ignore the inequities in these circumstances is a discredit to our sense of fairness and justice. Either way, permitting the summary dismissal of these legitimately filed claims is an indictment of our legal system, not merely the plaintiffs’ lawyers. The Supreme Court has generally recognized and applied equitable principles to avoid injustice in circumstances such as these. Bryant v Oakpointe Villa Nursing Ctr, Inc, 471 Mich 411, 432; 684 NW2d 864 (2004); Gladych v New Family Homes, Inc, 468 Mich 594, 606; 664 NW2d 705 (2003); Pohutski v City of Allen Park, 465 Mich 675, 698-699; 641 NW2d 219 (2002). We conclude that the application of principles of equity is similarly warranted in this case to reinstate plaintiffs action.
hi
Plaintiff Monika Mazumder filed this action as personal representative of the estate of the decedent, Deepika S. Mazumder, following Deepika’s death on June 3, 2000. According to plaintiffs complaint, Deepika committed suicide as a result of defendants’ negligence in treating her mental illness.
Personal representative letters of authority were issued for Deepika’s estate on May 2, 2002. Plaintiff filed a notice of intent for the medical malpractice action on April 27, 2004, and subsequently filed her complaint on October 21,2004. Presuming that the saving period was tolled during the 182-day notice period, plaintiff calculated that she had the remainder of the two-year saving period in which to file her complaint, and thus the complaint was timely filed.
Waltz was decided on April 14,2004. Under the analysis in Waltz, plaintiffs action would be time-barred because Waltz held that the notice tolling provision, MCL 600.5856, did not toll the wrongful death saving period, MCL 600.5852, and therefore the saving period expired May 2, 2004, during the 182-day waiting period following her notice of intent. This Court subsequently held that Waltz applied retroactively; thus, the analysis in Waltz became applicable to plaintiff’s case. Ousley, supra at 494-495.
IV
Defendants argue that the trial court erred in denying their motions for summary disposition on the basis that plaintiff timely filed her complaint within the “five-year ceiling” permitted for filing a wrongful death action under MCL 600.5852. We agree for reasons discussed below.
Further, it seems clear that applying the analyses in Waltz and subsequent cases would result in the dismissal of plaintiffs case in hindsight because plaintiff could not meet the 182-day waiting period following her notice of intent, during which she was precluded from filing suit, and still file her complaint before the end of the two-year saving period under MCL 600.5852. However, given the widespread recognition within the bench and bar of notice tolling during the saving period before the decision in Waltz, and the injustice that results from ignoring that recognition, plaintiff is entitled to equitable relief. Bryant, supra at 432; Apsey v Mem Hosp (On Reconsideration), 266 Mich App 666, 681-682; 702 NW2d 870 (2005); see also Ward v Rooney-Gandy, 265 Mich App 515, 517-520; 696 NW2d 64 (2005) (setting forth principles for equitable tolling), rev’d 474 Mich 917 (2005). No principled basis exists for denying plaintiff her right to proceed with her pending action.
A
Whether a period of limitations applies in particular circumstances constitutes a legal question that this Court considers de novo. Detroit v 19675 Hasse, 258 Mich App 438, 444; 671 NW2d 150 (2003).
We [also] review de novo decisions regarding summary disposition motions. Under MCR 2.116(C)(7), summary disposition is proper when a claim is barred by the statute of limitations. In determining whether summary disposition was properly granted under MCR 2.116(C)(7), this Court “consider[s] all documentary evidence submitted by the parties, accepting as true the contents of the complaint unless affidavits or other appropriate documents specifically contradict them.” [Waltz, supra at 647-648, quoting Fane v Detroit Library Comm, 465 Mich 68, 74; 631 NW2d 678 (2001).]
This Court considers de novo the applicability of equitable doctrines. Yankee Springs Twp v Fox, 264 Mich App 604, 611; 692 NW2d 728 (2004).
B
The trial court denied defendants’ motions for summary disposition on the grounds that plaintiffs complaint was timely filed in light of what the court perceived as a “five-year ceiling” in MCL 600.5852. We disagree.
MCL 600.5852 sets forth a saving period in which a personal representative may pursue a wrongful death action:
If a person dies before the period of limitations has run or within 30 days after the period of limitations has run, an action which survives by law may be commenced by the personal representative of the deceased person at any time within 2 years after letters of authority are issued although the period of limitations has run. But an action shall not be brought under this provision unless the personal representative commences it within 3 years after the period of limitations has run.
The trial court reasoned that under the wrongful death saving provision, plaintiff had three years from the time she was issued letters of authority in which to file her complaint, or until June 3, 2005. However, as this Court noted in Farley v Advanced Cardiovascular Health Specialists, PC, 266 Mich App 566, 573 n 16; 703 NW2d 115 (2005), the three-year period referenced in the second sentence of MCL 600.5852 does not establish a wrongful death saving period separate from the period of two years after the issuance of letters of authority:
We note that the three-year ceiling in this provision does not establish an independent period during which a personal representative may bring suit. Specifically, it does not authorize a personal representative to file suit at any time within three years after the period of limitations has run. Rather, the three-year ceiling limits the two-year saving period to those cases brought within three years of when the malpractice limitations period expired. As a result, while the three-year ceiling can shorten the two-year window during which a personal representative may file suit, it cannot lengthen it.
Consequently, plaintiffs action is not saved by the three-year ceiling in MCL 600.5852, and the trial court erred in granting summary disposition on this basis.
c
The period of limitations applicable to a wrongful death action is generally the period applicable to the underlying theory of liability. Waltz, supra at 648. The limitations period for a medical malpractice action is two years from the date the claim first accrued. MCL 600.5805(1) and (5); Farley, supra at 571. However, MCL 600.5852 sets forth a saving period in which a personal representative may pursue a wrongful death action:
If a person dies before the period of limitations has run or within 30 days after the period of limitations has run, an action which survives by law may be commenced by the personal representative of the deceased person at any time within 2 years after letters of authority are issued although the period of limitations has run. But an action shall not be brought under this provision unless the personal representative commences it within 3 years after the period of limitations has run.
Accordingly, “a personal representative may file a medical malpractice suit on behalf of a deceased person for two years after letters of authority are issued, as long as that suit is commenced within three years after the two-year malpractice limitations period expired.” Farley, supra at 572-573.
In 1993, the Legislature enacted a number of changes to the Revised Judicature Act, including a 182-day notice provision for medical malpractice actions, MCL 600.2912b(l), and a provision for tolling the period of limitations during the 182-day notice period, MCL 600.5856(d). 1993 PA 78; Morrison v Dickinson, 217 Mich App 308, 311-312; 551 NW2d 449 (1996). The purpose of the notice requirement is “to encourage settlement without the need for formal litigation.” Neal v Oakwood Hosp Corp, 226 Mich App 701, 715; 575 NW2d 68 (1997).
MCL 600.2912b(l) provides:
Except as otherwise provided in this section, a person shall not commence an action alleging medical malpractice against a health professional or health facility unless the person has given the health professional or health facility written notice under this section not less than 182 days before the action is commenced.
MCL 600.5856 provides:
The statutes of limitations or repose are tolled:
(d) If, during the applicable notice period under section 2912b, a claim would be barred by the statute of limitations or repose, for not longer than a number of days equal to the number of days in the applicable notice period after the date notice is given in compliance with section 2912b.
Under the statutory scheme for notice, “filing a notice of intent to sue will toll any period of limitations or repose, if such period . . . would otherwise bar the claim, for the time set out in the written notice of intent provision (MCL 600.2912b[l]), that is, for a period not longer than 182 days.” Farley, supra at 572.
In Waltz, the Supreme Court held that the medical malpractice notice tolling provision did not toll the saving period under MCL 600.5852 for filing a wrongful death action:
Section 5856(d), by its express terms, tolls only the applicable “statute of limitations or repose.” As we recently stated in Miller [v Mercy Mem Hosp, 466 Mich 196, 202; 644 NW2d 730 (2002)], the wrongful death provision, § 5852, “is a saving statute, not a statute of limitations.” (Emphasis supplied.) See also Lindsey v Harper Hosp [455
Mich 56, 60-61, 65; 564 NW2d 861 (1997)], in which we explained that § 5852, as “the statute of limitations saving provision” and an “exception to the statute of limitations,” operated “to suspend the running of the statute until a personal representative is appointed to represent the interests of the estate.”
The plain language of § 5852 wholly supports our conclusion that it is not itself a “statute of limitations.” ... By its own terms, § 5852 is operational only within the context of the separate “period of limitations” that would otherwise bar an action. Section 5852 clearly provides that it is an exception to the limitation period, allowing the commencement of a wrongful death action as many as three years after the applicable statute of limitations has expired. [Waltz, supra at 650-651.]
D
The parties do not dispute the timing of the following relevant events in this case: (1) The decedent died on June 3, 2000, after alleged acts of malpractice by defendants beginning on March 3, 2000; (2) the probate court issued letters of authority appointing a personal representative of the decedent’s estate on May 2, 2002; and (3) the personal representative gave defendants notice of the estate’s intent to pursue medical malpractice claims against them on April 27, 2004.
Plaintiff filed suit on October 21, 2004, nearly six months after the expiration of the grace period for filing a medical malpractice action pursuant to the wrongful death saving statute. Under the analysis in Waltz and its progeny, plaintiffs complaint would be considered untimely. Waltz, supra at 651; Farley, supra at 573-575.
E
The decision in Waltz, and subsequent decisions, essentially retroactively foreclosed any statutory basis for tolling the two-year filing period in the saving statute, MCL 600.5852. Waltz was decided on April 14, 2004, less than two weeks before the notice of intent in this case on April 27, 2004, and less than three weeks before the two-year saving period expired on May 2, 2004. Under pre-Waltz decisions, our courts clearly applied the notice tolling provision to the two-year saving period in the wrongful death statute. Plaintiff proceeded accordingly in this case. If Waltz had not “eliminated” the tolling period, plaintiffs complaint, filed on October 21, 2004, would have been timely in light of the 182-day notice tolling provision. Given the timing of the Waltz decision, it was not possible for plaintiff to alter the course of the litigation to protect her right to a cause of action.
In rendering its decision in Waltz, the Supreme Court acknowledged that its earlier decision in Omelenchuk v City of Warren, 461 Mich 567; 609 NW2d 177 (2000), “might be viewed as sanctioning application of the notice tolling provision to the wrongful death saving provision,” and to that extent overruled Omelenchuk. Waltz, supra at 655. In Omelenchuk, supra at 577, a unanimous Court referred to MCL 600.5852 as a “limitation period,” and calculated the limitations period on the basis of the date the personal representative was appointed, February 14, 1994, rather than the accrual date of the cause of action, February 13, 1994. See Waltz, supra at 654. Accordingly, in Omelenchuk, supra at 577, the Court observed that “the two-year limitation period was set to expire on February 14,1996,” two years after the personal representative was appointed, indicating that the two-year period was tolled during the statutoiy notice period, i.e., the wrongful death saving period under MCL 600.5852. See Waltz, supra at 654.
Although in Waltz the Court determined that the dates in Omelenchuk were miscalculated and should have been based on the accrual date of the cause of action, February 13, 1994, rather than on the date the personal representative was appointed, February 14, 1994, the fact remains^that Omelenchuk undeniably applied the tolling provision to the wrongful death saving provision, even if contrary to the plain language of the statute. The bench and bar subsequently relied on the analysis in Omelenchuk and the dates as calculated. See, e.g., Waltz v Wyse, unpublished opinion per curiam of the Court of Appeals, issued October 1, 2002 (Docket No. 231324), slip op, p 3 n 2 (“To the extent that plaintiff relies on Omelenchuk, supra at 577, we find that case distinguishable. In that case, the Supreme Court added the 182-day tolling period to the two-year limitation periods that started when the personal representative was appointed . . . .”).
In addition to Omelenchuk, pre-Waltz published decisions of this Court similarly recognized tolling with respect to the required 182-day notice period. In Fournier v Mercy Community Health Care System-Port Huron, 254 Mich App 461; 657 NW2d 550 (2002), the Court clearly based its analysis and decision on the premise that the tolling provision, MCL 600.5856, applied to the wrongful death saving provision, MCL 600.5852. The Court held that because the plaintiff failed to comply with the requirements for the notice of intent under MCL 600.2912b, the notice of intent did not toll the “statutory period of limitation,” which expired two years after the probate court issued letters of authority appointing the plaintiff personal representative. Fournier, supra at 468-469. In Fournier, the decedent died' on July 7, 1998. The plaintiff was appointed personal representative on July 13, 1998. The plaintiff mailed six notices of intent on July 12, 2000, next-day delivery, all of which were mistakenly sent to one recipient who was not named as a defendant. Id. at 463. The Court noted that “under the particular facts of this case, the period of limitation expired July 13, 2000, two years after the letters of authority were issued.” Id. at 466-467 (emphasis added).
Likewise, in Lentini v Urbancic, 262 Mich App 552; 686 NW2d 510 (2004), vacated and remanded, 472 Mich 885 (2005), on remand 267 Mich App 579 (2005), the “Court accepted that MCL 600.5856(d) tolled the period described under MCL 600.5852 . .. .” Lentini, supra, 267 Mich App 581. In the initial opinion, the Court addressed the question of “when” the letters of authority were considered “issued” for the purposes of tolling the period of limitations. The Court held that the letters are “issued” on the date they are signed by the probate judge. Id. The decedent died on April 11, 1999. The letters of authority were signed on October 15, 1999, and certified and mailed to the plaintiff on October 19, 1999. On October 12, 2001, the plaintiff filed a notice of intent. Id. at 580-581. In its initial decision, the Court stated:
If the date of issuance of the letters of authority is fixed as October 15, 1999, plaintiff had three days remaining under the statute of limitations when he tolled the running of the statutory period on October 12, 2001. The saving provision would give plaintiff three days to timely file his malpractice complaint when the tolling provision expired on April 12, 2002, or until April 15, 2002. But if the date of issuance of the letters of authority is deemed to be October 19, 1999, plaintiff had seven days remaining under the statute of limitations at the time it was tolled, and, therefore, when the tolling provision expired on April, 12, 2002, plaintiff had until April 19, 2002, to timely file his complaint. Plaintiff filed his complaint on April 17, 2002. Thus, whether plaintiffs complaint survives is wholly dependent on the date the letters of authority were “issued.” [Lentini, supra, 262 Mich App 554-555.]
No matter which date the letters of authority were considered “issued,” the Court recognized that the tolling period applied to the wrongful death saving statute. Pre-WaZfe decisions by lower courts likewise applied the tolling provision to the wrongful death saving provision.
Moreover, in Morrison, this Court addressed the statutory scheme for the notice of intent requirement, MCL 600.2912b, and the tolling provision, MCL 600.5856, as enacted under 1993 PA 78. Because of the effective date and the enacting provisions of the public act, the plaintiffs’ case was subject to the notice requirement, but not the tolling provision. The Legislature enacted the notice provision and the tolling provision, both effective April 1, 1994. Morrison, supra at 311. The act, however, provided that the tolling provision did not apply to causes of action arising before October 1, 1993, whereas the notice provision applied to cases filed on or after October 1, 1993. Id. at 312.
In Morrison, the plaintiffs’ malpractice action arose on May 21, 1992, with respect to a childbirth; however, the plaintiffs provided their notice of intent on April 28, 1994, and filed their complaint on May 19,1994. Id. at 310. The defendants claimed that they were entitled to summary disposition because the plaintiffs failed to give the required 182-day notice. The Morrison Court held that although the plaintiffs failed to comply with the notice requirement, they could not be denied the tolling period, even though technically it did not apply to their cause of action, because “enforcement would vitiate an accrued medical malpractice claim without providing the potential plaintiff the benefit of the 182-day tolling provision.” Id. at 318. The Court held that the plaintiffs, as well as all similarly situated plaintiffs, were free to refile their suits following the dismissal of their actions. Id. at 319. Morrison clearly recognized that the Legislature’s intent was that the 182-day notice provision would be counterbalanced by the 182-day tolling provision. Id. at 315-316.
f
In this case, plaintiffs “untimely” filing was not due to her miscalculation of the applicable limitations period. Plaintiff relied on the courts’ repeated recognition and the general understanding among the bench and bar that tolling applied under the circumstances of this case. Accordingly, in keeping with established precedent, equitable principles compel affirmance.
The Supreme Court has generally recognized and applied equitable principles to avoid injustice in circumstances such as these. Bryant, supra at 432; Pohutski, supra at 698-699. Given this precedent, including the recognition in Waltz, supra at 655, that Omelenchuk “might be viewed as sanctioning application of the notice tolling provision to the wrongful death saving provision,” we find the equitable principles applied by Justice MARKMAN in Bryant, supra at 432, a proper basis for reinstating plaintiffs action. In this case, as in Bryant, “[p]laintiff s failure to comply with the applicable statute of limitations is the product of an understandable confusion about the legal nature of her claim, rather than a negligent failure to preserve her rights.” Id.
The fact that the language of the statute plainly refers to a “statute of limitations” or a “statute of repose,” see Waltz, supra at 651, 655, does not change this result. In Pohutski, considering similar equities, Justice CORRIGAN, writing for the majority, obtained a similar result under the same reasoning. The Court held that “the plain language of the governmental tort liability act does not contain a trespass-nuisance excep tion to governmental immunity,” but nonetheless determined that it would be inequitable to apply the holding to pending cases. Id. at 689-690. Justice CORRIGAN concluded:
Thus, if we applied our holding in this case retroactively, the plaintiffs in cases currently pending would not be afforded relief under Hadfield [v Oakland Co Drain Comm’r, 430 Mich 139; 422 NW2d 205 (1988)] or 2001 PA 222. Rather, they would become a distinct class of litigants denied relief because of an unfortunate circumstance of timing.
Accordingly, this decision will be applied only to cases brought on or after April 2, 2002. In all cases currently pending, the interpretation set forth in Hadfield will apply.
[.Pohutski, supra at 698-699.]
Although Justice CORRIGAN’S statements were made in the context of retroactivity, there is no principled basis for failing to similarly uphold the “administration of justice” in this case. Id. at 699; see also Gladych, supra at 606. The equities do not change merely because of the nature of the action. Plaintiffs circumstances are no less worthy of equity, fairness, or justice with respect to her right of action.
Even absent this Supreme Court precedent, the doctrine of judicial or equitable tolling should be invoked to prevent the unjust forfeiture of plaintiffs cause of action. Ward, supra at 520. In Ward, this Court set forth the principles of equitable or judicial tolling:
“The time requirements in lawsuits between private litigants are customarily subject to equitable tolling if such tolling is necessary to prevent unfairness to a diligent plaintiff.” 51 Am Jur 2d, Limitation of Actions, § 174, p 563. “In order to serve the ends of justice where technical forfeitures would unjustifiably prevent a trial on the merits, the doctrine of equitable tolling may be applied to toll the running of the statute of limitations, provided it is in conjunction with the legislative scheme.” 54 CJS, Limitations of Actions, § 86, p 122....
This Court in United States Fidelity & Guaranty Co v Amerisure Ins Co, 195 Mich App 1, 6; 489 NW2d 115 (1992), noted that “Michigan and federal case law provides precedent for the principle that limitation statutes are not entirely rigid, allowing judicial tolling under certain circumstances[.]”
Equitable tolling has been applied where “the plaintiff actively pursued his or her judicial remedies by filing a defective pleading during the statutory period or the claimant has been induced or tricked by the defendant’s misconduct into allowing the filing deadline to pass.” Am Jur 2d, supra at 563. While equitable tolling applies principally to situations in which a defendant actively misleads a plaintiff about the cause of action or in which the plaintiff is prevented in some extraordinary way from asserting his rights, the doctrine does not require wrongful conduct by a defendant. Id. at 564. An element of equitable tolling is that a plaintiff must exercise reasonable diligence in investigating and bringing his claim. Id. at § 175, p 564. {Id. at 517-520.]
The doctrine of equitable or judicial tolling “must and should be rarely invoked” only “to ensure fundamental practicality and fairness and to prevent the unjust technical forfeiture of a cause of action . ...” Id. at 520; see also Apsey, supra at 681-682. Such circumstances exist in this case.
Although the Supreme Court recently reversed the majority decision in Ward in lieu of granting leave to appeal for the reasons stated in the dissent in Ward, see 474 Mich 917 (2005), the Ward dissent did not eschew the doctrine of equitable tolling, but concluded that it did not apply in the circumstances of that case because the affidavit was grossly nonconforming and the filing of the defective affidavit did not toll the period of limitations. Ward, supra at 529. Contrasting Bryant, supra at 432, the dissent concluded that the plaintiffs filing of an affidavit regarding the wrong patient “was undoubtedly ‘the product’ of a ‘negligent failure’ rather than an ‘understandable confusion ....’” Ward, supra at 528-529. In this case, to the contrary, there is no indication that the timing of plaintiffs complaint resulted from any negligent failure; rather, it was based on the confusion among the bench and bar concerning the existing law in Michigan. Apsey, supra at 681.
Plaintiffs failure to comply with the statute of limitations was the product of an understandable misinterpretation of the notice tolling provision, resulting from not only the appellate courts’ interpretation of the statutes at issue, but also from the presumed legislative intent. We hold that plaintiff is entitled to equitable relief. Accordingly, we affirm the trial court’s order denying defendants’ motions for summary disposition pursuant to MCR 2.116(C)(7).
V
Regardless of whether the decision in Waltz reached a correct result reading the plain language of MCL 600.5856, this result could not have been intended by the Legislature. In this case, as in Morrison, plaintiff is subject to the notice provision, but not the tolling provision, which is contrary to the legislative intent as set forth in Morrison. The notice of intent tolling provision, MCL 600.5856, should apply to the wrongful death saving period, MCL 600.5852, because it is the only way to harmonize the statutes and thereby effectuate the plain enactments of the Legislature.
In effect, Waltz established a judicial obstacle to a cause of action that the Legislature established pursuant to the strict requirement of a 182-day waiting period to file a medical malpractice action. The 182-day waiting period is used as a sword to shorten the two-year saving period. Wrongful death medical malpractice actions are generally time-consuming and difficult to evaluate; personal representatives should at least have the benefit of the two-year minimal period for filing a cause of action that the Legislature has determined is appropriate for medical malpractice actions generally. We urge the Legislature to respond legislatively to restore the two-year saving period for a wrongful death cause of action to eliminate confusion.
Affirmed.
DAVIS, J., concurred.
Drs. Mohamed Aziz and Stephan F. Taylor appeal by leave granted in Docket No. 261331, and Washtenaw County Community Mental Health; Moonson R. Elliott Eninsche, B.A., R.S.W, C.S.M.; and Richard Pfoutz, M.S.W, C.S.W, appeal by leave granted in Docket No. 261333.
See also Forsyth v Hopper, 472 Mich 929 (2005); Wyatt v Oakwood Hosp & Med Centers, 472 Mich 929 (2005); Evans v Hallal, 472 Mich 929 (2005); McMiddleton v Bolling, 267 Mich App 667, 671; 705 NW2d 720 (2005); Lentini v Urbancic (On Remand), 267 Mich App 579, 582 n 3; 705 NW2d 701 (2005).
Not only were the cases dismissed, but the grounds of dismissal call into question the adequacy of counsel's representation; a statute of limitations error on the part of trial counsel is the most rudimentary error.
Although plaintiff apparently is the successor personal representative, she relies on the date the initial personal representative, Bhaskar Mazumder, was appointed.
The number of days from April 27, 2004, to May 2, 2004, added to the 182 days.
The six-month discoveiy rule, MCL 600.5838a(2), does not apply in this case.
Effective March 31, 2003, former MCL 600.5805(5) was renumbered as subsection 6. 2002 PA 715. Because subsection 5 prescribed the period of limitations appbcable at the time this action accrued, MCL 600.5838a(l), this opinion refers to subsection 5.
8 Effective April 22, 2004, MCL 600.5856 was amended, relettering subsection d as c, and making other changes that do not affect this appeal. 2004 PA 87. This opinion cites the former subsection for consistency.
Plaintiff argues that the wrongful death saving provision in MCL 600.5852 began to run on May 2, 2002, the date that her predecessor personal representative, Bhaskar Mazumder, was issued letters of authority. Plaintiff does not argue that the wrongful death saving period should recommence on the date that she received letters of authority appointing her as the successor personal representative, and thus we do not address this consideration.
A review of both published and unpublished decisions in which this Court recognized that tolling applied during the statutory notice period reveals that at least 17 members of this Court presumed that tolling applied to the wrongful death saving statute. Fournier v Mercy Community Health Care System-Port Huron, 254 Mich App 461; 657 NW2d 550 (2002) (authored by Judge Kelly, joined by Judges Smolenski and Hood); Lentini v Urbancic, 262 Mich App 552; 686 NW2d 510 (2004) (authored by Judge Smolenski and joined by Judges White and Kelly), vacated and remanded, 472 Mich 885 (2005), on remand 267 Mich App 579 (2005); Crockett v Fieger Fieger Kenney & Johnson, PC, unpublished opinion per curiam of the Court of Appeals, issued October 28, 2003 (Docket No. 240863) (Judges Bandstra, Hoekstra, and Borrello); Waltz v Wyse, unpublished opinion per curiam of the Court of Appeals, issued October 1, 2002 (Docket No. 231324) (Judges Cooper, Hoekstra, and Markey); Chernoff v Sinai Hosp of Greater Detroit, unpublished opinion per curiam of the Court of Appeals, issued March 22, 2002 (Docket No. 228014) (Judges Neff, Fitzgerald, and Talbot); Gillary v Sisters of Mercy Health Corp, unpublished opinion per curiam of the Court of Appeals, issued July 10,2001 (Docket No. 221665) (Judges Saad, Holbrook, and Murphy); Williams v Spohn, unpublished opinion per curiam of the Court of Appeals, issued December 12, 2000 (Docket No. 212792) (Judges Wilder, Holbrook, and McDonald). Our review indicates that, before the holding in Ousley, no panel had indicated a contrary view and, further, that defense counsel as well generally held the view that tolling applied to the saving period. See, e.g., Chernoff, supra, slip op, p 1 and n 1.
The number of recent and pending appeals presenting nearly identical issues of time-bar dismissal in the context of the wrongful death saving provision, MCL 600.5852, is further evidence of this general understanding. | [
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Marston, J.
Phillips brought an action of replevin; against defendant Carr to recover possession of certain goods.
The plaintiff Phillips claimed to have purchased the goods in question previous to January, 1873, from Charles N. Lewis of Jackson, and that they were shipped from Jackson to, and received by him at Kalamazoo previous to that date.
It also appeared that on the 17th day of January, 1873, a petition was sworn to and filed in the District Court of the United States for the eastern district of Michigan, by some of the creditors of said Lewis, asking that he be declared bankrupt.
Upon the same day a petition was presented to and filed in said court, praying that the property of said Lewis be seized and possession thereof taken provisionally by an officer of the court, and for the arrest of said Lewis. That thereupon, and^ on the 17th day of January, a. warrant was issued out of said court to the marshal of said district commanding him forthwith to take possession, provisionally, of all the property and effects of the said Lewis, and safely to keep the same until the further order of the court; that defendant Carr, who resided at Jackson, and was then deputy marshal of the United- States for the eastern district of Michigan, by virtue of this warrant, in February, 1873, went to the store of plaintiff Phillips, and other places where the goods were, at Kalamazoo, in the western district, took possession of the goods, boxed and shipped them to Jackson in the eastern district, where this action was afterwards commenced.
Upon the trial a number of questions were raised as to the regularity and validity of the bankruptcy proceedings, and as to the right of the marshal under this warrant to seize goods in the hands of a third person, claimed to have been purchased previous to the commencement of the bankruptcy proceedings. The .view taken by the court was favorable to the defendant upon all but one point, viz.: tbe right and authority of the 'defendant to go out of his district and make the seizure in question at Kalamazoo, and upon this question the court held he had no such authority, and the offer of the provisional warrant, under which the seizure was claimed to have been made, was rejected. Other ques-^ tions were afterwards raised and decided against the defendant, but as they all depended and turned upon the ruling already made, they become immaterial.
In the brief submitted by counsel for plaintiff in error it is conceded that under § 787, Rev. St. of U. S., p. 147, which prescribes the duties of marshals, that the authority there conferred is to execute throughout their districts all lawful precepts directed to them and issued under the authority of the United States. This it is claimed is but the general authority and is not intended to point out what may or may not be done by them in special cases. It is not claimed by counsel that this section conferred ány authority to make the seizure in question. The claim made is that Congress has power to authorize the marshal as messenger of the bankrupt court to execute its process anywhere in the United States; that Congress has in this respect the same power that the legislature of a State has to say that a sheriff may serve process of a circuit court outside of the county from which the process issues. Counsel does not claim that Congress has, in express terms, conferred any such authority, but rather that such authority follows as a necessary and legal implication from other powers expressly conferred; that in order to fully carry out the provisions of the bankrupt act, and in order to protect and preserve the property of the bankrupt for the assignee, it is necessary that the marshal should have this authority.
I cannot concur with counsel in this view that such authority will be implied in order to protect the property for the assignee. Sec. 5046 prescribes what property of the bankrupt shall vest in the assignee, and it is declared that property conveyed by the bankrupt in fraud of his creditors shall at once vest in the assignee, and the assignee may commence and maintain an action for such property, and is not confined to the district in which he was appointed in so doing. To give the marshal the power claimed for him, would enable him to follow property which it was claimed had been by the bankrupt sold in fraud of his creditors, all over the United States, —to seize it and carry it into the district where the bankrupt resided and the bankruptcy proceedings were pending. This would require the claimant to follow the property if he desired to protect his title thereto, and submit to the jurisdiction of a court at an expense and loss ruinous even in case of success. If it could unerringly be said that all sales claimed to have been so made were fraudulent in fact, and that the claimant acquired no interest or rights entitled to protection, there might be less hardship in this view, but the law does not proceed upon any such theory.
We have not been referred to any provision in the Acts of Congress, or to a judicial construction of any provision which would protect the officer making the seizure in this case, and in the absence of such he clearly had no such authority. The seizure having been wrongfully made in a county where the warrant was but waste paper, and wrongfully removed to and detained in Jackson county, the warrant under those circumstances could afford no justification for the detention. The property could not thus be brought within the jurisdiction of the writ. Craig v. Grant, 6 Mich., 455.
Express authority is given marshals of the United States to transfer, keep and sell property outside their districts, in like manner as if the property were within the same. Rev. St., § 4629, p. 908. See also sec. 776, p. 145, et seq., where marshals of one district are authorized to perform duties in others. Other instances may be found where Congress, deeming an enlargement of powers necessary, has conferred the same in express terms. In. the absence of any construction by the court of the United States, giving marshals the authority claimed in this case under the bankrupt laws, we think it safer and more in accord with well settled legal principles to hold that they have no such authority.
It follows that the judgment must be affirmed with costs.
The other Justices concurred. | [
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] |
Per Curiam.
This case is covered by the decision on a previous writ of error between the same parties. See Matteson v. Vaughn, 38 Mich., 373.
The judgment is reversed with costs and a new trial ordered. | [
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] |
Maeston, J.
This action was commenced in justice’s court. The first error assigned relates to the sufficiency of the declaration. The justice in his return set forth that “the plaintiff declared verbally against said defendants on common counts in assumpsit, and also on a breach of a written contract, now on file in court, in all for three hundred dollars or under.” The defendants pleaded the general issue.
We are of opinion that under the liberal rules of pleading applicable to, and which have long been practiced in justice’s courts, the declaration was sufficient, and that the contract referred to was admissible in evidence thereunder.
It is next claimed that upon the trial in the circuit upon appeal the court erred in admitting evidence as to the property sold. This question grows out of the written agreement entered into between defendants as parties of the first part and plaintiff as party of the second part, on the 11th day of October, 1875, and upon which this action was brought.
It appeared upon the trial that in 1875 McLoughlin, at William P. Thrasher’s request, endorsed a note for him, running to one Daniel West. This note was after-wards taken up and a new note given, signed by Mc-Loughlin and Schuyler Williams. This second note was not signed by Thrasher, but a mortgage was given by him to these parties, upon a certain horse, to secure them, and it also appeared that Amos Bradshaw had a prior mortgage, to secure the payment of about $200 on this same horse.
Afterwards there was some talk between these parties about getting the amount which was owing them: the result was that plaintiff and defendants met, had the agreement of October 11th drafted, and signed the same.
It was therein agreed that Thrasher and Bradshaw should make an auction sale of Thrasher’s “stock.” The sale was to be made on October 29th: $200 of the proceeds of the sale were to be deducted and retained (this being tlje amount of Bradshaw’s mortgage on the horse) by the first parties, and the balance of the proceeds they were to turn over to the party of the second part, M'cLoughlin, and if after deducting the said sum of $200 there should not be enough left to pay MeLoughlin the sum of $225, then the first parties agreed to assign to McLoughlin enough of certain accounts to satisfy the deficiency.
In support of the error alleged, it is argued that under this contract only live stock could be sold; that hay is not stock and could not have been sold and was not included under the term “stock.”
This word “stock” was somewhat uncertain and we are not prepared to say that it could only refer to and legally include the live stock of Thrasher. At all events the question asked the witness Best, after he had testified that the horse British Warrior was sold — “What other property was sold?” — was proper. The agreement did not confine the sale to be made to this horse, and under any view it would have been proper to show that other property, which would be included as a part of Thrasher’s stock, was sold. It also appeared that the notice of sale, which was drawn up and agreed to by all the parties at the time .the contract was drawn and executed, and which was published by their authority, specifically described the property that was to be sold. This notice included the horse referred to, two lumber wagons, one pair road sleighs, certain cows, horses, buggies, hay and other articles. This was a practical contemporaneous construction of what was understood by the term “stock,” made by the parties interested, and clearly showed that it was not, as the term itself necessarily could not, be confined to live stock alone. The evidence was therefore properly admitted.
It is next claimed that the court erred in not giving defendants’ first request to charge. This request proceeded upon the theory that if there was an attempted bona fide sale of the property, which failed because the parties to whom the property was struck off refused to pay for the property according to the terms of the sale, the defendant Bradshaw would not be liable if he acted in good faith. This request was properly refused. The court charged the jury as to the duty of these parties in ease the persons bidding off the property did not comply with the terms of the salé. If the parties were responsible, the sale would be valid and binding and the amount of their bid could be collected. If not responsible, then it was Bradshaw’s duty to put this property up immediately at this sale, and have it resold, and to keep the sale open until a responsible bidder could be found. If none could be found, then to retain the property unless a different arrangement was made.
It is next claimed that there was no consideration to support the contract of October 11th. This position clearly is without support. The plaintiff had a mortgage upon certain property as security, and Bradshaw had a prior mortgage upon the same property. Thrasher was the debtor and mortgagor and owner of the property subject to these incumbrances. For the purpose of paying the indebtedness all parties met and mutually agreed that this and other property should be put up at public auction and the proceeds be applied in a certain way to the payment of these claims. For the-purpose of this sale the mortgage security upon this property would be waived: the purchaser would take a good title free from the mortgage claims.
The plaintiff thereby released his mortgage security and thenceforth looked to the contract of Oct. 11th in lieu thereof. This being so, the parties could not after-wards insist that there was no sufficient consideration to support their promise to pay. To permit them so to do would certainly work an injury to the plaintiff which would be a sufficient consideration for their promise. Other views might be taken, but the above is sufficient.
It is also urged that the court erred in charging the jury as to the amount of the plaintiff’s claim, upon the assumption that they found the horse which had been mortgaged to be of a certain value. There were certainly some very singular things in connection with that sale. The bids each and all failed, some for one reason and some for another. The horse that had been mortgaged went into the possession of the Bradshaws and they kept him for upwards of a year thereafter. For the court under all the circumstances of the case to instruct the jury that if the horse was only .worth $200, and Bradshaw had a right to sell him at private sale, then the plaintiff’s claim would be only $96.25, was as favorable as defendants could claim. The plaintiff’s right to recover did not depend upon the mere value of this horse, viewed in the light that Bradshaw had a prior mortgage on him, as was supposed. He did not recover on his mortgage, but on the agreement of Oct. 11th, and he was not so limited under that agreement.
There was some farther criticism of the charge of the court, but we do not see that the defendants were in any way injured by what was said. The remarks made by the court, as to the quantity and value of the hay, was only a statement to the jury of his understanding of the evidence, but the court did not thereby take or assume to take from or interfere with the right of the jury to find the facts.
As we discover no error, the judgment must be affirmed with costs.
The other Justices concurred. | [
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Marston, J.
The first question of importance in this case is whether the claim at the time action was brought, was not barred by the statute of limitations. It clearly was, unless there was a fraudulent concealment within the meaning of Comp. L„ § 7159.
There is no pretence whatever that either of. the defendants made any representations in relation to this claim, or that they or either of them concealed any fact from plaintiff’s knowledge. The claim is that one Pease, who was a clerk in the office of defendants and had charge of the collection of this claim, fraudulently concealed from her the fact that the .claim had been collected. Even if this were true it would be insufficient. The provisions of this section cannot be extended by construction to concealments made by persons other than those sought to be' charged in the action. If there was any fraudulent concealment it was that of Pease and not of these defendants who acted in entire good faith.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Marston, J.
There are some legal objections set up to the relief sought for in this case which will first be noticed.
First, that the court had no jurisdiction, because it was not alleged in the.bill of .complaint that the property in dispute was of the - value of over $100.
It does appear in the bill of complaint that the complainant claimed to be the owner in fee simple of the premises, consisting of three hundred and sixty acres, and that since his conveyance to defendant Gregory the latter had conveyed them to Fifield; and that the consideration as expressed in the deed was $15,000. We are of opinion that enough appears to clearly'give the court jurisdiction. Church v. Ide, Clarke’s Ch. (N. Y.), 494.
Second. That the action is improperly brought in the name of complainant. In support of this it was urged on the argument that complainant by his own showing had parted with all his legal and equitable interest in the land to Gregory upon an oral trust that the latter should hold it for Catherine Abbott, the infant daughter of complainant, and that Catherine was the proper person, if any one, to commence proceedings.
We are of opinion that the position taken by complainant’s solicitor is correct. Complainant being of intemperate habits, was desirous of conveying this property to his infant daughter so as to place it out of his reach and prevent its being squandered. He was informed that to do so he must convey to a third person and not directly to his daughter. With this object in view he conveyed to defendant Gregory who he claims was to convey to Catherine Abbott, and that Gregory refuses to convey to Catherine, and has made a conveyance of the property to defendant Fifield. There being no binding agreement between complainant and his daughter under which she could have compelled a conveyance of this property, it being a free gift to her by her father, and the conveyance made to Gregory being for the sole purpose of enabling the latter to convey to Catherine, so that a perfect title might vest in her to the property, we are of opinion, upon complainant’s theory, that he remained sufficiently interested in the transaction to enable him to come into court and insist upon the conveyance being made by Gregory in accordance with the agreement, if such an one was made, in order to prevent a frustration of the only object which he had in view in making the conveyance to Gregory. We do not say that Catherine as against Gregory might not have filed a bill for the same purpose, but we see nothing in this case that would prevent her father coming into court as a complainant and insisting upon a performance of the agreement entered into between him and Gregory. The mere fact that performance thereof would enure more particularly and directly to the benefit of another would be no good reason why the party making such agreement could not insist upon its performance. Otherwise the entire consideration as to him might fail, and unless the person for whose direct benefit the conveyance to Gregory was made, would move in the matter, he would be remediless.
We will now consider the facts in this case.
On the 21st day of April, 1875, Gregory by warranty deed conveyed the premises to defendant Fifield. The bill charges that this conveyance'was made without consideration and with intent to cheat and defraud complainant and his daughter Catherine, and the bill prays that this conveyance may be decreed of no effect and null and void; that defendant Gregory may be decreed to execute to defendant Catherine a deed of the lands in accordance with the trust reposed in him, and if this relief cannot be granted, that the deed to Gregory may be declared null and void, and for general relief. . I¡
Fifield in his answer admits the conveyance to him. He sets up that during the season of 1875 complainant and defendant Gregory were partners doing a general commission business; that he at various times furnished the firm with flour, feed and money; that he wanted security for the advancements then made and after-wards to be made; that for the purpose of securing said indebtedness and any flour, feed or money, after-wards advanced, defendant Gregory executed the deed in question; that said deed was made in good faith, and for the sole purpose of securing and protecting him (Fifield) for any and all indebtedness incurred and to be incurred between him and said firm. And that he caused this deed on the 28th of April, 1875, to be recorded in the record of deeds and also in the record of mortgages of the proper county. He denies that he had any knowledge of the fact that Gregory held these lands in trust, and he offers to release or convey upon payment of the amount due him.
Defendant Gregory in his answer claims that the deed to him was made to enable him to secure persons who should make advances to the firm, and substantially sets up the same facts in reference to the conveyance to Fifield as stated in the answer of the latter.
I am satisfied from the evidence in this ease that previous to and at the time the conveyance was made to Gregory, there was not and had not been any agreement or understanding between Abbott and Gregory, that the latter should take and hold this property for the . purpose of securing the firm creditors. Gregory’s testimony standing alone establishes this fact.
On the other hand I am not satisfied that the conveyance was made in pursuance of an agreement or understanding that Gregory should hold the property in trust for or convey the same to Catherine Abbott, complainant’s daughter.
The complainant testifies that he conveyed the premises to Gregory in trust for his child, and that Gregory was to deed to her, and that he thought all the time Gregory had done so, until some time in September or October, 1875, when he first learned that Gregory had conveyed to Fifield to protect the property against certain claims against Gregory, and that Fifield, Gregory said, would convey to Catherine as first agreed upon.
Mrs. Abbott also testifies that the conveyance to Gregory was for Catherine’s benefit, but her evidence is far from being clear or distinct upon this point. Indeed her testimony standing alone would-and does convey the impression, at least to my mind, that the conveyance was made to protect the property and to prevent complainant from recklessly disposing of and squandering it.
The letters written by Mrs. Abbott shortly after the conveyance to Gregory certainly are inconsistent with the theory of a conveyance to him in trust for the benefit of her daughter.
These letters show that there was no love or affection, and nothing but the most bitter feelings existing between Mr. and Mrs. Abbott, and give very strong support to the testimony of Gregory that complainant had repeatedly refused to convey the premises to either Mrs. Abbott or her daughter, for the reason that the property would then be placed beyond his reach or control; that they did not care for him and would kick him into the street.
The conveyance was made January 18, 1875, and the letters referred to were written in March and June following. Mrs. Abbott in her testimony says that after the conveyance she repeatedly spoke to Gregory about conveying to the child, and that the only reason he gave for not doing so was his hurry of business. She says it ran along so until February when complainant and witness were going to leave the city, when she saw Gregory and told him she could not leave until, she knew he had fixed the place; that he might die in the meantime and if he didn’t fix it .they would lose it; that he then made an appointment with Mrs. Abbott to meet her at a certain time and place, apparently to make the conveyance, but that he did not keep the appointment, and that she did not see him again until June, when he told her he had conveyed to Fifield.
In none of the letters which were written by Mrs. Abbott to Gregory, does she mention or even intimate that the property was held by Gregory for her daughter’s benefit, or that Gregory had not conveyed as he had agreed to do, or that he was violating his agreement in any way.
The first letter is dated March 6th, and in it she advises Gregory to sell every dollar’s worth of personal property complainant owns to some person he (Gregory) can trust, reminding him that he had power so to do. She wrote him to do so at once, to make it a legal sale, even to passing money, as surely there was some one he could trust. The power she here refers to was doubtless a power of attorney hereafter mentioned.
In the letter of March 10th she speaks, of the difficulties she was having on account of complainant’s intoxication and his selling personal property from off the farm. She says she will advise a sale of this farm if she finds complainant cannot manage it, and speaks of a debt that will have to be paid, even if Gregory should have to mortgage the farm to pay it, but she hopes it will not be necessary to sell. There are also expressions in the letter of June 23d, which need not be here repeated, inconsistent'with the idea of a trust, but consistent with a conveyance to Gregory as a protection against complainant’s folly and recklessness.
There are also certain admissions claimed to have been made by Gregory that he held the property in trust. These admissions are denied by him, and are at best entitled to but little weight. If however there were doubts as to the correctness of the views expressed upon this branch of the case, yet complainant could not obtain the full relief prayed for.
The fact that Fifield was a creditor of the firm of Abbott & Gregory, and that a balance of account exists in his favor does not seem to be seriously disputed. The evidence as to the condition of the account is not as full, clear, and satisfactory as we could have wished. If complainant was satisfied to .let the case stand, in this respect, upon the showing made by Fifield, we cannot in the absence of all testimony, and upon mere suspicion that a more thorough investigation would have reduced the amount of his claim, find that the amount which he testified to is not correct.
Fifield claims to have received the conveyance in good faith as a security for the amount of his account against the firm of Abbott & Gregory, and this is disputed.
The testimony introduced on the part of tke defendants tends strongly to support Fifield’s view of the ease. Fifield denies that he had knowledge that Gregory held the premises in trust. He was shown the deed to Gregory, an abstract of the property and a power of attorney from complainant and wife to Gregory, authorizing the latter to sell and convey the real and personal property of complainant.
It appears from the testimony of complainant and wife that they first learned of the conveyance to Fifield in June, but did not then learn that Fifield made any claim against the property or claimed any interest therein. Things remained in this shape until January, 1876, when Gregory and Fifield went to see complainant, where he resided upon the farm. The parties then, had a conversation in reference to this matter, and as complainant and wife substantially agree in their testimony as to what was then said, and the most important part of the defense depends upon the correctness and reliability of their testimony as to what then took place, I cannot do better than give that part of the conversation, in complainant’s own words. When requested to state the conversation, he testified, “he (Gregory) said that Mr. Fifield was one of our heaviest creditors and he held the deeds of the farm. Then I spoke to him about the farm, spoke to Mr. Fifield about the farm, and he spoke up and said ‘1 know how the farm was deeded to Augustus Gregory, but we must have the same story to tell, and of course, he said, my claim must be made good.’ I then asked him how much his claim was: he said something over $4,000. He said we must all have the same story to tell, and then he spoke about exchanging a piece of land he had out at Pontiac, for the farm.”
The importance of this conversation to complainant’s case is to show that Fifield at the time he took the conveyance knew that Gregory held the property in trust. The parties present and taking part in that conversation were all interested, and are equally divided in their recollections, in numbers at least, as what took place. As already stated complainant and wife substantially' agree in their version, while Gregory and Fifield deny that Fifield admitted having had notice that Gregory held the property in trust or that anything was said impeaching or questioning the bona fides of Fifield’s security. What then are the probabilities? All agree that the amount of Fifield’s claim was then spoken of as being about $4000, and that he claimed security upon the property under the conveyance from Gregory for the amount of his claim. Under such circumstances it seems incredible that Fifield should admit his security to be absolutely worthless, as suph is the effect of his admission if made. If he knew at the time he took the conveyance as security, that Gregory held the property in trust for Catherine Abbott, his security was of no value. And if such was the case at that time, it was at least very questionable whether those present at that date could make it valid and effectual. Complainant and wife did not at this time, as might have been reasonably expected, if Gregory had conveyed to Fifield in violation of the trust and confidence reposed in him, repudiate the conveyance, or deny that Fifield had any security upon this property, or could have for the amount of his claim. On the contrary they recognized the claim made by Fifield. Complainant said that the interest on $4000 would be more than he could make on the farm; that he could not pay it: they talked of exchanging this farm with Fifield for a smaller one that he owned in Oakland county, and considered the proposition Fifield made them in reference to such exchange for some short time afterwards, but owing to some additional information afterwards obtained, abandoned it.
Fifield remained at their house all night, not as one who was attempting to defraud them or their daughter, but as one friendly to their interests, and was taken by complainant on the following morning to the depot at Decatur.
It was said that after arriving in Decatur Fifield and complainant had a conversation in a store at that place; that Atkins, a man in complainant’s employ, who drove them over to Decatur, heard a portion of this conversation, and he testified that “as I came in (to the store) he (Abbott) asked Mr. Fifield this question: they were talking about the farm, and about trading farms, and ■ he asked him if he didn’t — if he knew this to be a deed of trust for him to hold this property for his daughter, and he said he did, before he took the mortgage, if I understood it right; he had a mortgage it seems — the way they talked — on the property; that Mr. Gregory had told him all about it.”
This conversation Fifield denies. There is one rather singular'circumstance in reference to this conversation. If the evidence of complainant and wife, as to what took place and was said at their house the evening previous, is correct, there was no necessity whatever for complainant asking Fifield this question, as they claim the whole matter had been gone over at their house, and knowledge admitted by Fifield.
It is said, however, that complainant was in possession of the farm, and that this was sufficient notice of the rights claimed by him. We think otherwise. He had conveyed the premises by warranty deed but a few months previous to the time of the conveyance to Fifield, and his possession under such circumstances would not be an indication that he claimed any rights inconsistent with the conveyance he had made.
It was also said that Fifield upon obtaining this deed caused it to be recorded in the record of deeds and mortgages; in connection with this the fact that he took a deed and not a mortgage, and that at that time he had not seen the lands are all suspicious facts and tend to show that he was not acting in good faith. These facts might under certain circumstances be considered suspicious and yet they are under others, consistent with perfect honesty and good faith. If, as claimed, the amount to be secured was uncertain and depended upon the advances thereafter to be made, and for that reason a deed was taken as affording better security as was supposed than a mortgage, there was nothing wrong in it. The fact that he at once caused the deed to be recorded in the record of mortgages shows that Fifield considered it as but a security. Had it been so recorded after this difficulty arose, it might indicate that the question of security had not sooner been thought of. There was sufficient upon the back of the deed to Gregory both in reference to the quantity of land and the consideration expressed for the conveyance, when taken in connection with the location of the land and the information given by Gregory, to satisfy Fifield that it would be sufficient security for the amount of the advances contemplated, and the fact that he so considered it without farther examination would not throw doubt upon his good faith. All these facts when taken together we think are not sufficient to justify us in finding that Mr. Fifield was acting in bad faith.
It but remains to consider what decree should be rendered under the facts in this qase. As between these parties I can see no objections to the property being conveyed to Catherine Abbott, when so prayed by complainant, subject to the lien of Fifield.
The amount claimed by Fifield as nearly and definitely as we can ascertain the same from the record was, January, 1876, $4927.30. For this amount Fifield testified he had the due-bill of Abbott ’& Gregory, payable with interest at ten per cent.
The bill in this case may be treated, on behalf of Catherine Abbott, as one to redeem the property from the claim of Fifield, and a decree may be rendered giving her six months to pay Fifield the amount of his claim, and that upon payment thereof he convey the premises to her. In default of such, payment then that the premises be sold, as on a mortgage foreclosure, and from the proceeds thereof, after deducting the costs and expenses of such sale, to pay Fifield the amount his due, and the balance to be paid over to the said Catherine.
The decree of the court below will be reversed, and a decree rendered in accordance with this opinion, appellees to recover costs in the court below, and appellants to recover costs in this court.
The other Justices concurred. | [
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] |
Graves, J.
This is a certiorari to review certain action of the drain commissioner under the township drain law.
The case differs in some respects from Lane v. Burnap, ante, p. —1, but it teems with as many errors. The respondent’s counsel argues that it appears on the face of the record that Taylor is not justly entitled to prosecute the writfirst, because of laches in suing it out; and second, because he was a petitioner for the drain in question.
As in the case of Lane v. Burnap the record refutes the first position. The last proceeding by the commissioners was a supplemental report and which according to respondent’s answer to the writ at page 17 of the record was not made until December 21st, 1877, and the writ was taken out only nineteen days later. That the writ was ■not out of season is clear enough.
As to the second ground it is enough to say that the plaintiff must be supposed to have petitioned for legal and not illegal action on tbe part of the commissioner, and it would be startling to hold that because he applied for the prosecution of lawful methods, he should therefore be precluded from complaining against unlawful ones enacted to his prejudice. Every day’s experience in the courts of justice exposes the fallacy of the objection. The plaintiff is never supposed to be estopped from complaining of a wrong ruling to his prejudice for the bare reason that he instituted the action or invoked the jurisdiction. When the party has given his assent to the specific act by procuring it or uniting in it, there is or may be good reason for refusing to hear him complain of it, and in this case the counsel might not err in saying that Taylor should not be heard to object to the petition. But the main errors are in the later proceedings and the plaintiff is not precluded from objecting to them.
Only one or two of the numerous defects will be noticed. The “examination” upon the application, and which .is required to be had on notice, was fixed by the commissioner for June 10th, 1876, at the house of one Maples, and the only indication that any notice was given is found in a statement by Mr. Burnap in his answer to the certiorari. He sets forth a writing having no signature dated June 5, 1876, and being in the form of a notice for the “examination” in question on June 10th, and then adds: “ This is a copy of notice served on interested persons.” And this is all we have in the record to show that any notice was given. If in fact this writing was served on the very day it was made, it was not lawful notice. It was without signature, and moreover the time between the date and return was shorter than the period required between the day of service and the day of “examination.” People on rel. of Platt v. Highway Com’r, 38 Mich., 247.
In the next place the statement in the commissioner’s answer concerning the fact of service proves nothing. Apart from the objections against making proof of service in that way and apart from other objections to the sufficiency of this • statement in the abstract, it does not even suggest who made the service or what means of knowledge the commissioner possessed on the subject. See the authorities in Lane v. Burnap, ante, p. 739.
Shortly after the “examination” mentioned, the drain commissioner instead of calling a jury to make inquisition upon the necessity of the ^contemplated work and for taking property therefor, and upon the subject of damages or compensation, made an ex parte application to the probate court for the appointment of three commissioners, and the court thereupon appointed the commissioners and they in turn proceeded ex parte to adjudicate in the premises. They decided in favor of the necessity, but were entirely silent on the subject of damages and compensation. The taking of these proceedings in this manner without any notice to those interested, was a fatal error as we held in Strachan v. Brown, ante, p. 168. The various other material defects which appear in the record require no notice.
The proceedings must be quashed.
The other Justices concurred. | [
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Cooley, J.
Two questions are made upon this record; one of law and one of fact.
The question of law is whether, in a suit brought in behalf of the estate of a deceased person to which a private corporation is defendant^ it is competent for the corporators to testify in behalf of the corporation to facts which, if true, were equally within the knowledge of the deceased. The 'question arises under the statute making parties witnesses generally, with a few exceptions, and which we have had occasion to interpret and apply in several cases. Kimball v. Kimball, 16 Mich., 211; Wright v. Wilson, 17 Mich., 192; Wheeler v. Arnold, 30 Mich., 304; Twiss v. George, 33 Mich., 253.
We have no doubt the corporators may so testify. It is only parties to the suit the statute renders incompetent, and a corporator and the corporation are distinct persons, not in a legal sense identical at all. Talbot v. Scripps, 31 Mich., 268; Hanson v. Donkersley, 37 Mich., 186.
The question of fact is whether Aloney Bust, the testator of complainants, in conversations with persons interested in the Big Bapids Improvement & Manufacturing Company, gave them to understand that a certain real estate mortgage held by him had been paid, and thereby induced them to purchase and pay for the land described in it. The circuit court found that he did, and that consequently he was estopped from foreclosing it as against the corporation.
Upon this question the court has not been able to agree. We agree that when an estoppel in pais is relied upon, the facts which support it should be clearly made out; and some of us think that is not the ease here. But as a majority do not agree in that conclusion, the decree will be affirmed, but without costs.
The other Justices concurred. | [
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Campbell, C. J.
Replevin was brought against the sheriff of Genesee for property held under levy, claimed by the plaintiff below by an instrument previously executed by the execution debtor.
The main question raised is whether the instrument was an assignment for the benefit of creditors, and void for not containing the legal requisites of such assignments.
It is upon its face a transfer to a bank for a valuable consideration of certain lands, machinery and lumber, of all book accounts, notes and demands. It is declared on its face to be given to secure $15,283.26 with interest at ten per cent., and it authorized the grantee to take possession of and run the mill and machinery, and dispose of the lumber and other property to pay the debt and expenses of management, leaving the balance to belong to the grantor.
It- would be difficult to find a paper having less resemblance to an assignment for creditors than this. It does not purport to proceed on any insolvency, and does not set forth any inability to pay debts or that any other debts existed. It is an instrument intended to secure a single creditor on property which could only be disposed of to pay the secured debt, and which was therefore an equitable if not a legal mortgage, and no more. It would be useless to discuss authorities on such a plain document.
Not being bad on its face, it could only be avoided for actual fraud. Comp. L., § 4716; Oliver v. Eaton, 7 Mich., 112.
The levy is shown by the execution creditor’s agent who swore out the attachment, to have been made after he had seen the mortgage on the premises in possession of the' mortgagee’s agent, who was shown to have taken possession. There was no ground for the request to charge that unless filed before levy no notice would supply the place of filing. The statute requires neither notice nor filing where there is an immediate and continuous change of possession. There being evidence to go to the jury of such a change, that element could not have been left out of the request without making it misleading. Notice by such possession would be the best possible notice under the language of the statute. Comp. L., § 4706.
There is no error in the record, and the judgment must be affirmed with costs.
The other Justices concurred. | [
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] |
Per Curiam.
Motion for further return to writ of ■certiorari. The proceedings which it is proposed to .review on the writ were proceedings by a county drain commissioner, who had gone out of office when the writ issued. The writ was nevertheless directed to him, and he returns that he is out of office and no longer has -custody of the papers and records.
We think this was all the late commissioner could return. The proceeding is one that must stand or fall by the record, and that should be certified to us by the officer who controls it. Commonwealth v. Winthrop, 10 Mass., 177; Goodrich v. Commissioners etc., 1 Mich., 385.
Our attention is called to Harris v. Whitney, 6 How., Pr., 175, and People v. Peabody, 6 Abb. Pr., 228, as laying down a different doctrine. In the case last mentioned the proceeding was a special one before a judge whose action after he went out of office would not be of record anywhere; and the case is therefore not in point here. In the case in Howard the proceedings seem to have been had before the judges of a court that had ceased to exist, and whether the decision is right or wrong, it can have little force as authority as it professes to overrule another decision in the same court, which seems to us the more reasonable. Peck v. Foote, 4 How. Pr., 425.
If the ends of justice required a personal return from the late commissioner the case might be different. But here he could return nothing but the record, and that we think is to be obtained from the proper custodian. | [
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] |
Graves, J.
This case now appears for the third time in this court. Our former rulings in it will be found in 30 Mich., 118, and 33 id., 334. The present record exhibits several questions of more or less importance, but the point of primary significance relates to the effect of lapse of time on Blackwood’s right to bring the action, and if the opinion of the court is against him on that, the other questions are not material in respect to the result. It is, therefore, expedient to waive discussion on the other points for the time being and first examine the important question referred to. In approaching it the familiar doctrine suggests itself that Blackwood must rely on the sufficiency of his own title, and cannot question Yan Yleet’s before making a prima facie case of .actionable right in himself. Now he base's his right on a mortgage by Miller to Adee May 27, 1837, for $400 and interest, payable June 1st, 1842, and an assignment of the mortgage July 14th, 1838, by Adee to the elder Blackwood, and another November 7th, 1859, by the latter to himself. The objections to the evidence relative to these transfers may be waived and it may be assumed they were in good form. For the present purpose it may be likewise assumed that nothing has been paid. Yan Yleet entered in 1850, and since that time has continued in actual possession. Prior thereto the premises were wild and vacant. Neither Miller, the mortgagor, nor Adee, the mortgagee, nor Blackwood senior nor defendant in error ever made entry or occupied. No disabilities have been in the way.
In making this statement of facts objections raised by plaintiff in error are not regarded. The case is set forth in as strong a light for defendant in error in respect to the facts as the record will permit. Now the question whether the action can be maintained in view of the length of time between its commencement and of the accruing of the right of entry under the mortgage must be ruled by the regulations for limiting such rights contained in ch. 1, tit. 6, pt. 3d of the Rev. Stat. of 1838. Chapter 228, Comp. L., is restrained by its own provisions. § 7145. Hence § 7140 quoted by counsel for defendant in error as bearing effectively on the case does not apply at all.
As between Miller, the mortgagor, and the successive owners of the mortgage, the former had the constructive possession, but the latter, at least from the default in June, 1842, held the right of entry up to 1862. Subds. 4 and 5 of § 3, ch. 1, supra, Rev. Stat., 1838. Albright v. Cobb, 34 Mich., 316, and eases. But as no one ever entered or had actual possession under the mortgage it follows that no one was ever seized or possessed under it within the meaning of the provision in section one allowing twenty-five years for entry where an actual possession has been ousted or abandoned. § 6.
Hence the case does not fall within that regulation. The conditions required by it have never existed.
The other branch of the section is independent of such antecedents, and it prohibits action or entry unless the first is commenced or the second made within twenty years next succeeding the accruing 'of the right. Now as before stated, the right to enter under the mortgage title in question accrued as early at least as June, 1842, or some twenty-two years before suit, and the facts assign the ease to this twenty years provision.
Had the premises remained vacant, Blackwood’s right of entry would have been tolled (Albright v. Cobb, supra); and it is not perceived that Van Vleet’s going in arrested the statute and so accrued to the benefit of Blackwood. His case is that Yan Yleet has nothing in privity with the mortgagor or his estate or interest, and that he is a stranger whose entry and holding have been without right. In Henderson v. Griffin, 5 Pet., 151, 158, the court say, “it is settled law, that an entry on the land by one having the right has the same effect in arresting the progress of the limitation as a suit; but it cannot be sustained, as a legal proposition, that an entry by one having no right is of any avail.” Finally, the statute in express w'ords negatives the right to recover in ejectment unless the plaintiff at the commencement of the action has a right to recover the possession of the premises or of some share, interest or portion to be proved and established at the trial (Comp. L., § 6206), and we think this right was cut off before he sued by the foregoing provision against entry after twenty years. Atkyn’s Lessee v. Horde, 1 Burr., 60; Angell on Lim., § 369.
We observe these parties were in controversy about this mortgage in 1868. This is evident from the report in 11 Mich., 252. It thence appears that Blackwood filed a bill alleging his ownership of the mortgage; that Van Yleet was in possession claiming title under tax-deeds, and threatening waste; that the tax-deeds were invalid: and praying an injunction to restrain the waste, and that the deeds in question 'might be declared void. Yam Yleet demurred, and the circuit court sustained the demurrer and dismissed the bill. Blackwood appealed, and this court affirmed the decree. In giving the opinion Mr. Justice Manning observed that as the statute of 1843, taking away the right to bring ejectment, was inoperative against this antecedent mortgage, there was “nothing in the way of complainant bringing an action of ejectment against defendant to try the validity of the tax-titles.” But in closing the opinion, he further observed that “in no view that can be taken of the bill does it show sufficient cause for an injunction. Complainant is not in possession, has not established his title to the premises against defendant at law, and shows no priority of estate, or action of ejectment pending to try the tax-title.” The remark relative to the right to sue in ejectment was not necessary to the decision and was uncalled for. The attention of the court was not directed to the existence of any obstacle whether founded on lapse of time or on any other ground.
On the contrary Blackwood’s counsel conceded that ejectment might be brought, but contended it would not afford the relief due. Had the point been noticed it must have been deemed a further reason against the equity of the bill. The right of entry being barred at law would be a basis for argument in favor of the refusal to sanction equitable interference with the possession prior to foreclosure in the mode and on the ground which the bill contemplated.
The record discloses other difficulties than the one chiefly noticed, and among them one which springs from the neglect to enter coupled with the want of proof of payment of anything and the want of cogent evidence, if any at all, of recognition on the part of the mortga. gor or of any one in his shoes of the substance of the mortgage within the twenty years next preceding the commencement of the Suit. Buller’s N P., 110; Dun- ham v. Minard, 4 Paige, 441; Giles v. Baremore, 5 Johns. Ch., 545; Jackson v. Hudson, 3 Johns., 375; Collins v. Torry, 7 Johns., 278; Hillary v. Waller, 12 Ves. Jr., 239, and other eases. It is not needful to extend discussion, however, beyond the principal point.
The rulings below involve it and a reversal with costs is unavoidable.
.Campbell, C. J. and Graves, J. concurred: Cooley, J. did not sit in this ease. | [
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] |
Graves, J.
This is a certiorari to a circuit court commissioner to review his refusal to exonerate plaintiffs as special bail for one Dwight Gibbs, they having become such bail in an action brought by defendant Stimson against him in the circuit court for Kent county.
In that suit Stimson recovered judgment and proceeded regularly to enforce it by execution against property and likewise against the body. The latter execution was returnable September 24th, 1877, and was actually returned and filed on the 25th of that month. It bore the certificate of the sheriff that Gibbs could not be found within the sheriff’s county. The bail resided in different counties, Begole being a resident of Genesee and Stevens of Bay. On the 4th of October, being nine days after the actual return of the execution against the body and ten days after the time for its return, Stimson commenced suit by declaration in Genesee county against the bail on their recognizance. The declaration was filed and rule to plead entered and copies of the declaration with notice of the rule served, on that day. All these steps are admitted to have been formal and regular. It was claimed and not denied that the bail appeared to the action and that when it was commenced the circuit court for the county of Kent was in session and continued in session for more than eight days thereafter. Whether the circuit court for Genesee was then in session does not appear. There was evidence that the next term was .appointed to commence on the 20th of November ensuing.
On the 15th of October, being twenty days after the return of execution against the body, and eleven days after the commencement of suit against the bail, Gibbs the principal, presented himself befóte the commissioner for Kent county for the purpose of surrender in exoneration of his bail. • The commissioner entertained the application and after a full hearing denied it and refused to order a discharge of the bail, and it is this decision which is now brought into question. The position of the plaintiffs in certiorari is that the commissioner in refusing to discharge, erred in point of law. No other ground is open. Neither the original suit nor that against the bail is in this court, and we have no authority whatever except what belongs to us as a court of error-sitting to review this specific determination of the commissioner.
We have .no concern with what either the circuit court for Kent county or the circuit court for Genesee county might have done in their discretion! Nor is it a sub ject of inquiry here whether the commissioner had power to receive an excuse for not making a render earlier. The question and the only question on this return is, whether it appears that the commissioner was bound to liberate the bail. If he was not, whatever might be said as to his power to do it under the circumstances, his decision cannot be disturbed.
It follows that the evidence submitted to the commissioner to show why it was that Gibbs did not render himself between the 9th and 15th of October, and to excuse the failure is of no importance on this hearing. It is of course well known that a party need not wait for counsel, but may render hims.elf (Nethersole’s Bail, 2 Chitty, 99), and the books are replete with evidence of the indisposition of the courts to excuse defaults. 1 Tidd’s Pr., 308: Perigal v. Mellish, 5 T. R., 363; Field v. Lodge, 3 Doug., 410.
The real question presented on this record is this,— within what time in case of special bail may a render be made as matter of right?
On the part of the bail it is contended that it extends to the end of eight days in term after the return of process served on them, and that by fair construction this applies to suits commenced by declaration, and there means eight days running from the expiration of the time allowed for pleading.
This last position that the beginning of the eight day period is postponed in cases commenced by declaration, until the expiration of the space allowed for pleading, is rather suggested than urged; and indeed, the proposition that the render in question was in season to be insisted on as matter of strict right, is not pressed.
The ground chiefly relied on is that “whether strictly in time or not, the facts disclose such diligence and evident good faith on the part of the bail in endeavoring to make the surrender, as to entitle them under the practice of the courts, to be exonerated.” We have noticed this view and observed that if admissible below it is one we cannot act upon as a court of error.
Granting for the present, but without deciding, that in ease the time had unquestionably passed for surrender as matter of right, it was still competent for the commissioner or circuit court, in the exercise of a discretionary power over the practice of the court, and on the ground of grace and favor, to liberate the bail, it is very obvious we think after all, that it is not in our power in this proceeding, if in any, to retry upon the original showing the propriety of relief on such a claim, or to assume to adjudicate upon the wisdom displayed by the commissioner. We are sitting as a court of error to decide whether the tribunal below was bound to relieve, and not to assert an appellate authority over matters confided to the discretion of that tribunal.
The fact that the disposition of a subject in one way or another is submitted to discretion necessarily implies that it cannot be revised on writ of error. That proceeding supposes the will of the appellate court to be controlling on the question, and to admit that a controlling will resides in a different jurisdiction is to deny the existence of the discretion. An objection may lie that discretionary power has been abused.
But no such question is presented, or in view of the state of facts could be. The defendant in certiorari contends that the period for rendering as matter of right ceases when the execution against the principal is returned, and that if any exception exists, it consists in allowing eight days after the return of process against the bail, — an exception, as he alleges, which has no application where the bail are sued by declaration, and not by writ. He also maintains that even if this allowance of eight days is held applicable to suits so brought, the time must begin when the declaration is served and not later, and hence that the render here was too late in any view.
There is no rule on the subject. Neither is there any statute which in direct terms defines the time within which a render may be made. Under the ancient course the only remedy against bail was scire facias, and the courts did not permit a common action on the recognizance. Godlington v. Lee, Thos. Raym., 14. And no render was allowed after return of execution not found, against the principal. This practice was taken advantage of to work oppression. Execution against the principal would be issued one day returnable the next, and so allowing no time for bail to bring in the body. To pre-. vent such injustice the court proceeded upon the ground of grace and favor to allow time after return of scire facias. 1 Tidd’s Pr., 308; Wilmore v. Clerk and Howard, 1 Ld. Raym., 156.
After some fluctuations the right to bring debt on the recognizance of bail was sanctioned, and a rule was adopted providing that in such case the bail should have eight days after the return of the writ to render the principal. This was in the 13th of William III.; Milner v. Petit, 1 Ld. Raym., 720. In the 1st of Anne it was provided by rule of court that in ease of suit by action against the bail they should “have liberty to render the defendant in discharge of his bail, by the space of eight entire days in full term next after the return of the latitat or other process sued out against them.” Fisher v. Branscombe, 7 T. R., 355.
Although by the literal terms of the recognizance the bail might be considered as definitely fixed by the return of the execution against the principal not found, still the court thought the recognizance was so blended with the process and procedure as to give some discretionary power over the proceedings and authorize equitable mitigation.
The theory was invariably maintained that the allowance of the eight days was mere matter of grace and favor, but the allowance was as certain and invariable as though of strict right. The practice was never departed from and was always appealed to with as much confidence as to any positive' regulation whatever. As something on which the bail might fairly rely it was practically a matter of right during the existence of the rule. To interpret proceedings and preserve their due relations and dependence it was proper to perpetuate the theory. The practice of the Common Pleas was not exactly the same.
Between the Revision of 1830, and the adoption of the code there was no express provision in New York limiting the time for special bail to render their principal, and there was no uniform practice on the subject. The Supreme Court prior to the Revision pursued a practice derived from the King’s bench and closely resembling it, and it was kept up afterwards. The bail were allowed eight entire days including Sunday in full term after the return of process against them, and the “ term ” for the purpose in guestion was deemed to continue only to the second Saturday after its commencement. 2 Burrill’s Pr., 229. The courts of common pleas in the respective counties made their own regulations. The Superior Court of the city allowed ten days after return of process against the. bail.
Although many provisions in our statutes agree exactly with those in the Revision of New York, made in 1830, still numerous regulations are found there which we have not, and considering the diversity of practice which has existed there concerning the time allowed for. surrender, there is no foundation for deriving a definite and satisfactory rule from that source. It is, however, very apparent that there as in England, and generally elsewhere, the return of the execution against the principal not found has not been regarded as the termination of the time for making surrender.
Everywhere has it been considered not only competent, but expedient to exceed this time and not only so, but to extend it beyond the return of process against the bail. So much is proved by the practice of all courts. And we have seen that by the rule of the Queen’s bench during more than a century and a half the period so given was eight days.
As already observed we have no regulation in direct terms. There is a provision however which very strongly implies a regulation. It is in these terms : “ When the defendant in a suit shall die after the return of the execution against his body, and before the expiration of eight days from the return of the process served on his bail, the court shall relieve such bail on the same terms as if they had surrendered their principal at the time of his death.” Comp. L., § 5766.
This provision is certainly required to be read and construed with that which prescribes the form of the recognizance, and it becomes evident that in enacting what the recognizance should contain it was not intended to limit the time for surrendering by the time of return of the execution against the principal. If, as is claimed, it was designed that the bail should be positively fixed on return of execution against the principal, why specially provide that his death after that event, and much more, so late as at some time during the eight days after return of process served on them, should entitle them to be relieved, and not only so, but in the same way as though they had surrendered him at the time of his death? Why should they be able to make his death in that interval a ground of relief? Why relieve as though he had been surrendered if he could not have been.surrendered if he had continued to live? If the law has already barred his surrender, why ordain that his subsequent death shall be equivalent to a surrender?
If the theory is sound that return of execution against the principal conclusively binds the bail and cuts off their right to surrender at their option, how can it make any difference in the case, that the principal dies after such return or that his death takes place within a specific space thereafter ? What explana tion can be given? Now the implication appears clear that his death at the time mentioned prevents his surrender and that he might be surrendered as matter of right at any time within the eight days, if living.
The absolute right is in the bail to make surrender, and it is terminated by the death of the principal. The fair conclusion is that the statute must be deemed to contemplate a positive right in the bail to surrender until the expiration of the eight days if the principal is alive. There is no qualification. So much space is allowed after return of process served on the bail and without regard to term time or any artificial apportionment of it, and this measure of eight days is doubtless a remnant of ancient practice.
According to this view, if the action against the bail here had been commenced by writ, it would follow that the proceeding before the commissioner to effect surrender was too late to be matter of right. But the suit was commenced by declaration, and on the part of the defendant in certiorari it is said that declaration is not process, and hence that the provision for surrender does not apply to the case; and on the part of the bail it is claimed that suits commenced by declaration on recognizances of bail are within the reason of the statute and that the eight days in such eases only commence at the expiration of the time to plead.
The circumstances would have to be very controlling to lead to the opinion that the Legislature in allowing the bail to be sued by declaration-thereby intended to give an option to the creditor to allow or disallow the eight days for surrendering. And yet, if such time is given when the suit is commenced by writ, and is not given where the first proceeding is a declaration, it is left to the creditor to decide by choice of remedy whether the eight days shall be allowed or not. No reason can be imagined for such a distinction. On the contrary, fairness and uniformity are opposed to it. The practice of commencing suits by declaration as authorized by our statute, is modem and we derive it from New York, and there it is settled that in such cases the filing and service of declaration is in the nature of process to bring the defendant into court, and for many purposes must be regarded as process, and ruled upon accordingly, Roth v. Way, 2 Hill, 385; Thayer v. Lewis, 4 Denio, 269. And in Mayell v. Follett, 7 Wend., 507, the court decided expressly that bail were entitled to the same time for making surrender after service upon them of declaration as commencement of suit, that they would have in case they were sued on their recognizance by capias.
We think the principle is correct,' and that the bail on being served with declaration as a mode of instituting suit against them are at the same stage of proceeding, for the purpose of effecting a surrender of their principal, which is attained at the return of capias served upon them.
The result is that the plaintiffs in certiorari had eight days after service of declaration within which as matter of strict right to make surrender, whether the court was in actual session or not; and that when the principal appeared before the commissioner on the 15th of October to effect surrender, the time for doing so as matter of right had elapsed, and the commissioner was not bound to exonerate the bail. It follows that the judgment must be affirmed with costs.
The other Justices concurred. | [
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] |
Dethmers, O. J.
Challenged by plaintiffs are the proceedings and election for transfer of a portion of Handy #1 Fractional School District in Livingston county to the Howell School District. From circuit court order dismissing their bill of complaint they appeal here.
The statutory provisions governing such transfer are to he found in CLS 1956, §§ 340.461-340.467 (Stat Ann 1959 Rev §§ 15.3461-15.3467).
Proceedings were initiated by resolution of the Handy #1 Fractional School District Board, adopted June 7, 1958, requesting the Livingston county board of education to make the transfer. On June 19, 1958, the county board adopted a resolution directing the transfer and an election thereon in the district, to be held not less than 10 nor more than 15 days from that date. It did not fix the date upon which the transfer was to become effective. The district board set July 2, 1958, as the date for the election and posted notices thereof on June 24th. On June 26th plaintiffs, electors and property owners in the portion of the district not to be transferred under the resolution of the county board, appealed from the latter to the State board of education. On that same date plaintiffs filed their bill of complaint in this cause, seeking to enjoin the election. Although no temporary injunction issued, these actions by plaintiffs caused the district board to refrain from holding the election on July 2d.
On August 21, 1958, the district board met and adopted a motion as follows:
“if it is found the election can be held, that the posting and other preparations be done as soon as possible. That the polls be opened 3 hours from 6 till 9 p. m. on whatever day the election falls.”
On August 27th 2 of the 3 district board members, namely, the president and secretary, met in the office of the county superintendent of schools and were advised that the appeal to the State board had been denied. The president, believing that they then were free to do so, insisted on setting a date for the election and posting notices thereof in accord with their mentioned action of August 21st. The secretary dis agreed and refused to sign proposed notices of such election. Thereupon the president signed and posted the notices calling for an election on September 3, 1958.
On September Sd the election was held pursuant to the posted notices. As stated in the trial court’s opinion, it is conceded that on that date there were 66 eligible voters and 60 of them cast their ballots. Eight spoiled ballots were cast. Of the remaining 52 cast, 31 were for and 21 against the transfer.
On September 4th plaintiffs again appealed to the State board of education. On September 26, 1958, the State board considered plaintiffs’ appeal and confirmed the county board’s action directing the transfer.
Plaintiffs urge that the election of September 3d was unlawful because the State board had not yet acted upon the appeal of June 26th. They quote from CLS 1956, § 340.467 (Stat Ann 1959 Rev § 15.3467), the following:
“Such appeal shall have the effect of holding the effectiveness of the resolution from which appealed in abeyance until the appeal is acted upon by the State board of education.”
It is clear that the quoted statutory language providing that the effectiveness of the county board’s resolution directing the transfer shall be held up until the State board has acted on the appeal therefrom, means that the transfer shall not become effective until that time. It does not prohibit or deny validity to the approving election held in the interim.
Defects in the proceedings stressed by plaintiffs are:
(1) That the resolution of the county board, adopted on June 19th, did not provide for the election to be held on September 3d. The statute does not require that the county board shall call or fix the date of the election.
(2) That the county board’s resolution did not determine the effective date of the transfer as provided in CLS 1956, § 340.465 (Stat Ann 1959 Bev § 15.3465). We think the effective date should be deemed to be the date when approved by the electors. This is specifically provided in CLS 1956, § 340.431 (Stat Arm 1959 Bev § 15.3431), with respect to the annexation of one district by another.
(3) That the district board did not, at its August 21st meeting, determine the time and place for the special election held on September 3d and the secretary did not post the notices thereof as provided in CLS 1956, § 340.36 (Stat Ann 1959 Bev § 15.3036), but, instead, the president alone, on August 27th, determined the time and place for the election and posted the notices therefor. However, the district board, at its August 21st meeting, had determined to hold and post notices of such election “as soon as possible.” From this it is clear that the president, on August 27th, was merely implementing what the board had determined on August 21st.
Plaintiffs contend that the district board never had jurisdiction to hold the election because the above mentioned defects prevented it from having-been acquired either by the June 19th resolution of the county board, the August 21st meeting- of the district board, or the August 27th meeting of 2 members of the district board. In Carnes v. Livingston County Board of Education, 341 Mich 600, 605, we quoted with approval from Hulan v. Township of Greenfield, 229 Mich 273, 280, that, “The validity of an election does not involve the technical question of jurisdiction.” Bather, the question is whether the statutory provisions governing the proceedings and election here involved must, after the election approving the transfer, be deemed mandatory or directory. In Carnes we said the action of the board was merely ministerial, setting in motion the machinery for the election. "We held the provisions of the statute for conducting the proceedings and election to be “directory” and that technical failure to comply therewith should not be permitted to disenfranchise the electors or to set their votes at naught when, as here, there is no reason to conclude that the will of the majority of the electors has been thwarted. We have consistently held, as we did in Carnes, that irregularities by officials or their failure to comply with statutes’ directory provisions will not be held to invalidate an election without a showing that any elector was thereby deprived of his right to vote or in any way misled or prejudiced or that the result was thereby affected or changed. Rosenbrock v. School District No. 3, 344 Mich 335; Richey v. Monroe County Board of Education, 346 Mich 156; Connine v. Smith, 190 Mich 631; Attorney General, ex rel. Miller, v. Miller, 266 Mich 127 (106 ALR 387); Thompson v. Cihak, 254 Mich 641; Adsit v. Secretary of State, 84 Mich 420 (11 LRA 534). Here 60 of the 66 eligible voters voted. If the remaining 6 had voted adversely, the result would not have been changed. No fraud or deception is shown or claimed. Under such circumstances and the decisions in the above cited cases the election must be upheld and the transfer held lawful.
Affirmed. Costs to defendant.
Carr, Kelly, Smith, Black, Edwards, and Kavanagh, JJ., concurred.
Souris, J., took no part in the decision of this case. | [
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] |
Smith, J.
Tbe question before us is tbis: Does tbe Constitution require a different vote for tbe call of a constitutional convention than it requires for tbe adoption of an amendment to tbe Constitution?
The question before us is not tbe wisdom of providing for a different vote. That is a question for tbe draftsmen of tbe Constitution. Our duty is not to draft a Constitution but to uphold tbe one adopted by tbe people.
Nor is tbe question before us whether tbe Constitution should be changed because it is allegedly an outmoded, borse-and-buggy contraption better suited to tbe needs of 50 years ago, when it was adopted, than those of today. If it should be changed, it must be changed by tbe sovereign power that created it, tbe people. Tbis Court does not have tbe jurisdiction to change tbe Constitution.
Having disposed of what tbis case is not, we return to what it is: Does tbe Constitution in fact require a different measure of the vote to call a constitutional convention from that required to adopt an amendment to tbe Constitution?
What the Constitution actually says is that the adoption of a constitutional amendment requires a majority of tbe electors “voting thereon,” whereas a call for a constitutional convention requires “a majority of such electors voting at such election.”
Thus the Constitution prescribes 2 measures of voter approval, depending upon the magnitude of the constitutional change under contemplation. These requirements seem simple and straightforward enough. We held in People v. Board of State Canvassers, 323 Mich 523 (sometimes referred to as the Alger Case), that they meant what they sci.d. Mr. Justice Btjtzel, writing for a unanimous court, held that,where a Constitution requires, for the passage of a proposition, a majority of those voting at an election, the proposition cannot be carried merely by a majority of those voting on the particular proposition; It requires, rather, a majority of the votes 'cast at the election.
This decision is now assailed as having been erroneous. The assertions put before us by plaintiff all reduce to 1 fundamental proposition: that there is no difference in the vote required for the 2 actions, i.e., either may be carried by a simple majority of those voting on the issue. The short answer is that the Constitution expressly provides to the contrary.
Before procteeding to re-examination of the words employed, and their meaning, it would be helpful to our understanding if we were to examine their origins, to ascertain, if possible, the reasons behind . their inclusion. The words of a Constitution normally carry the gloss Of history. They come to us not as the apt alliterations of the moment of draftsmanship but as the verbal symbols of political tur- . moil. So it is with the constitutional clauses before ;us. They do; indeed, mean far different things. The reasons for their differences are plain to all who stop to read for they lie deep in the roots of onr political life.
It was the conviction of onr forbears that our people should be safeguarded by a written Constitution, a device unknown to onr English ancestors. It was intended by them to be a sacred and invulnerable document. It had been purchased at a staggering cost. It was not easily .to be abandoned, in favor of new and more enticing structures of government, by mere temporary majorities. The allurements of the unknown and the untried are not unknown to government itself, as our founding fathers had good reason to know in this new world. The problem involved in the constitutional change, as clearly seen since our earliest days, and as expressed in The Federalist, is the contest between “that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, 'which might perpetuate its discovered faults.” In' short, it has been feared that easy change might degrade' our constitutional principles to the level of statutes, some of which are hastily drawn and reflect exCes: sive and partisan zeal. The threat of such action directed against our basic liberties has not been regarded as insubstantial. Daniel Webster denied the necessity for a revision of the whole Constitution once a government had been framed and spoke against providing for such an event. *James Madison suggested the concurrence of 2 of the 3 departments of State. Robbing points out that only a minority of the original 13 States made provisions for changes in the basic law and that Delaware and South Carolina, the first States to authorize specific amendment, as well as general revision, were not followed by other States until 1835. Whatever the particular safeguards employed in the various State constitutions, the procedures looking towards general constitutional revision were both dilatory and cumbersome as compared with the more expeditious procedures set up for less momentous changes. It has been the practice of the people of this country (and Michigan is no exception) to hedge about with numerous safeguards, sometimes called obstructions, the power to call conventions empowered to revise the organic law of the State. The problem presented is one of the balancing of interests. (This, we stress, was the problem facing the framers of our Constitution in 1908, not the courts of the State.) At the one extreme of voter participation, the calling of a constitutional convention empowered to rewrite the basic charter of government by the same simple procedures or majorities as are required for usual voter approval has been rejected much more often than accepted. At the other extreme, there has been no adoption of a requirement that such vote be unanimous. What has emerged from the debates between constitutional draftsmen in State after State has been a compromise as to safeguards, the form of which is a matter for determination by the people of the State, and not by the courts. It has varied from State to State. In some States, a 2/3 (not a mere majority) vote of the members of each house of the legislature is required to submit the question of calling a convention. In Kentucky, action not at 1 session of the general assembly but at 2 is necessary, and, moreover, the majority voting on the question must equal 1/4 of the number of electors voting in the last preceding general election.* **** In still other States, the majority must be a majority of those voting at the election at which the question is submitted. Michigan is among the latter. There is nothing ambiguous, confused, or contradictory here. A call for a convention cannot be carried by the indifference of the electorate: the Constitution itself demands participation.
The Constitution also requires that a proposed constitution adopted by a constitutional convention be approved by a majority of the electors voting thereon. The measure of such approval, we observe, again, is a matter of weighing opposing considerations, some States specifically require a majority of the electors voting on the proposal. Others require a majority of those voting at the election. Still others require different measures of approval. It is not unknown, in fact, that a constitution be not submitted to the people for approval, once having been drafted by a convention duly called.
In opposition to the clear mandate of the Constitution certain arguments are urged upon us. We will address ourselves only to the legal arguments made, and will examine the questions submitted to us by plaintiff in his brief in the order put:
1. What election is referred to by the words “such election” in article 17, § 4, of the Constitution (1908) ?
2. Should People v. Board of State Canvassers, 323 Mich 523, be followed?
As to the first question it is said that “contemporary and practical construction of the words ‘such election’ from the very first revision vote in 1849 through the 1906 revision election (which resulted in our present Constitution) was that they referred to the election on the revision question and not to an election on some other matter held on the same date.”
We will accept, for purposes of argument, but without conceding, that a problem of interpretation is presented despite the clear differentiation made in the words of the Constitution itself respecting the votes required in the 2 situations. What, then, can fairly be said to have been the understanding of the people with respect to the issue here under consideration at the time of the adoption of the Constitution? Was it in truth, and despite what has been said, that there should be no difference between the vote required to call a constitutional convention and that for the adoption of an amendment merely?
A study of the contemporaneous legal history leaves no doubt as to the answer. The people in tended to say just what they said in their Constitution, namely, that the vote required to call a constitutional convention must be a majority of those voting at the election. There had, as plaintiff points out, been some confusion on the subject in the early history of the State. But we are not seeking the understanding of the people in 1849, or in 1867, but that contemporaneous with the adoption of the Constitution of 1908. As to such there can be no serious question. The issue was clearly defined in 1899. In that year the attorney general ruled, in answer to a resolution of the house of representatives calling for his opinion (with respect to the general election held in November, 1898) upon this question:
“Do these words [majority of the electors * * * voting at such election] mean a majority of the electors voting upon the single proposition of constitutional revision, or a majority of the electors who participated in the election generally?”
TIis opinion, after examination of the authorities, was that the majority required was a majority of those participating as voters in the general election, not merely a majority of those voting on the issue (OAG- 1899, pp 75, 76). Despite an effort on the part of certain legislators to nullify this opinion (see 1899 House Journal, pp 2199, 2679) it remained controlling on the question. Consequently the board of State canvassers later ruled, with respect to votes cast at the general election held in November, 1904, that the proposal to call a constitutional convention had failed to carry, despite the fact that a majority of those voting on the issue were in favor thereof, since those favoring the proposition did not constitute a majority of the voters participating in the election. See Michigan Manual, 1907, p 46. Less than a year later the legislature, obviously acting under that portion of article 20, § 2, of the Constitution of 1850, authorizing an election upon the question of a general revision to be held “also at such other times as the legislature may by law provide,” passed PA 1905, No 325, providing for a “special election to be held” for voting upon “the question of calling and holding a convention for the purpose of making a general revision of the Constitution.” At this election a majority of qualified electors voting at such election having declared in favor of calling such convention, it was ruled that the proposition had been duly carried. The convention held in 1907-1908, resulting in the adoption of our current Constitution, was the direct outcome of these proceedings. It was this constitutional convention, so convened, that placed in our present Constitution the words here under study, differentiating between the vote required for a constitutional amendment and that required to call a constitutional convention. To construe the words “such election” to mean merely any submission of the issue to the people at any election, held at any time, for any purpose or purposes, where the mere fact that a constitutional convention is contemplated may be lost in a mass of parochial issues and a plethora of all grades of office seekers, is simply to destroy the safeguards (whether wise or foolish) that the people have placed in their basic charter. In shortest terms, it destroys, and without reason, the difference written into the Constitution between the vote on an issue and the vote at the election.
In short, we are now asked to hold that the people did not clearly understand what they were thus doing. "We are asked to hold that, despite the 1899 opinion of the attorney general upon the very issue here presented, despite the unsuccessful legislative attempt to overcome it immediately thereafter, despite the ruling of the board of State canvassers that the 1904 proposition had failed to carry for lack of the necessary majority, and despite the re-enactment in the new Constitution of the very language over which all of this turmoil had raged, the people did not really understand the clear meaning of the words they were using, once again, in their new Constitution. (Constitution 1850, art 20, § 2: “in case a majority of the electors, so qualified, voting at such election, shall decide in favor of a convention.” Constitution of 1908, article 17, § 4: “In case a majority of such electors voting at such election shall decide in favor of a convention.”) We are to hold that when they required to pass a constitutional amendment a majority of the votes cast thereon, and when they required to call a constitutional convention a majority of the votes cast at such election, they were actually prescribing no difference between the 2 votes hut were in fact merely calling for the same vote on each. All of this we decline to do. The understanding of our people is not so meager. Their distinguished leaders who framed the Constitution were not so inept, so thoughtless, so blind to the issues of the day. From the language used it is clear that they meant to distinguish between the votes required for a simple amendment and those required to call a constitutional convention, and our holding is that they did so distinguish.
We have thus relied upon the contemporaneous understanding of the people. Their understanding is as relevant today as it was a half-century ago and it has a direct applicability to the situation before us. When the people went to the polls in 1958 to vote upon the question of a constitutional convention, they went with the contemporaneous understanding that a failure to vote upon the constitutional question would have the practical effect of a vote in the negative thereon. Such is not only the clear phrasing of the Constitution but the high est Court in the State had unanimously so ruled with respect thereto. We have no way of knowing how many of the 900,000 electors who failed to vote on the issue would have voted in the affirmative thereon, had they voted, or how many who failed to vote did so because of reliance upon the practical effect of their failure to vote. Obviously we cannot say that the proposition carried nor can we command the board of State canvassers, as plaintiff wishes, “to certify that the revision question carried.”
The second argument urged upon us is that the case of People v. Board of State Canvassers, 323 Mich 523, “should be' overruled because based upon an error of law.” In support of this argument the plaintiff’s brief asserts that such case was in error when it held that Stebbins v. Judge of Superior Court of Grand Rapids, 108 Mich 693, had not been overruled by Shearer v. Board of Supervisors of Bay County, 128 Mich 552. We do not agree. The cases are not inconsistent. This Court pointed out in the Shearer Case, supra, the distinction between the 2 eases in words so clear as to obviate the need for elaboration by us.
Many conceive the constitutional requirement hereinabove discussed to be an impediment to the economic and social well-being of this State. We are urged, as though we were a constitutional convention faced with a choice of alternatives, to choose that one the more beneficial to our people. All of this misconceives the problem presented to this Court. We are not a constitutional convention. 'We have before us for consideration a Constitution already adopted, the words of which are clear' and clearly stated. We have no choice of alternatives presented to us. The people themselves made the choice, now' urged upon us, back in 1908. The argument that their choice is, a half-century later, shown to have been unduly'restrictive of constitu tional- change does not constitute this Court into a constitutional convention, empowered somehow at this date, to make a wiser choice.
The constitutional words before us, onerous though they made be, are the onerous words of the people themselves and by the people only may they be expunged. They are beyond our jurisdiction to alter or amend. The action of the Indiana court in In re Todd, 208 Ind 168 (193 NE 865), has been warmly commended to us. In this case the Indiana court changed the rule long prevailing in that State as to the counting of votes. We are urged to go and do likewise. Not cited to us, however, are the words of a later Indiana court, written many years after Todd, containing the melancholy admission that the opinion in the Todd Case “in substance amounted to a change in the constitution itself.” This course of judicial conduct, that of arrogating to ourselves the authority to change the Constitution itself, is a course upon which we will not embark. For if we may today interpret out of the Constitution this obstacle to rapid constitutional change, we may tomorrow interpret out still another obstacle to rapid popular action, the slow and cumbersome jury process, or the time-consuming secret ballot. The problem we face is not how a wise Constitution would have been phrased, but whether the particular Constitution before us will be held inviolate. We have been quick to strike down legislative tampering with its precepts. It is equally secure from judicial profanation, though its security is measured only by the tradition of the law, our sense of self-restraint.
The constitutional scheme is clear. The reasons for its adoption are manifest, whether wise or unwise. The words employed are “plain and free from ambiguity.” The arguments and authorities once more urged upon us as aids to “interpretation” have gained nothing in validity or applicability since our prior determination of this matter, and those newly devised are unimpressive. The simple, inescapable fact is that the Constitution clearly distinguishes between the vote required to approve a constitutional amendment and that required to call a constitutional convention.
Writ denied. No costs, a public question.
Dethmers, C. J., and Carr, Kelly, Edwards, and Kavanagh, JJ., concurred.
Black, J., took no part in the decision of this case.
Souris, J., did not sit.
Const 1908, art 17, §§ 1, 2.
Const 1908, art 17, § 4.
Sea The Works of Alexander Hamilton, edited by Henry Cabot Lodge, vol 9, p 274. (2d ed, vol 11, p 364. Federalist Paper No 43, part 8.—Reporter.)
Speaking in the Massachusetts Convention of 1820 and 1821, Journal of Debates and Proceedings in the Convention of Delegates, p 413.
The Writings of James Madison- (Hunt ed), pp -175, 176.
Rohlfing, Amendment and Revision of State Constitutions, 181 Annals of the American Academy of Political and Soeial Science, p 180.
Calif Const (1879), art 18, §2; Colo Const (1876), art 19, § 1; Del Const (1897), art 16, §2; Fla Const (1885), art 17, §2; Idaho Const (1890), art 20, §3; 111 Const (1870), art 14, § 1; Kan Const (1859), art 14, §2; Minn Const (1857), art 14, §2; Mont Const (1889), art 19, § 8; Nev Const (1864), art 16, § 2; NM Const (1911), art 19, § 2; NO Const (1868), art Í3, § 1; Ohio Const (1851), art 16, § 2; SC Const (1895), art 16, § 3; SD Const (1889), art 23, § 2; Utah Const (1895), art 23, § 2; Wash Const (1889), art 23, § 2; Wyo Const (1889), art 20, § 3. The Nebraska constitution requires a vote of 3/5 of the members elected to the legislature. Neb Const (1875), art 16, § 2.
Ky Const (1891), § 258.
Ala Const (1901), art 18, § 286; Idaho Const (1890), art 20, § 3; 111 Const (1870), art 14, §1; Kan Const (1859), art 14, §2; Md Const (1867), art 14, §2; Midi Const (1908), art 17, §4; Minn Const (1857), art 14, § 2; Nev Const (1864), art 16, § 2; SC Const (1895), art 16, § 3; SB Const (1889), art 23, § 2; Utah Const (1895), art 23, § 2; Wash Const (1889), art 23, §2; Wyo Const (1889), art
Mich Const (1908), art 17, § 4.
Alaska Const (1956), art 13, § 1; Ariz Const (1910), art 21, § 2; Ga Const (1945), art 13, §1; Md Const (1867), art 14, §2; Mich Const (1908), art 17, §4; Neb Const (1875), art 16, § 2; NT Const (1938), art 19, §2; Ohio Const (1851), art 16, S3; Okla Const (1907), art 24, § 2.
Colo Const (1876), art 19, §1; 111 Const (1870), art 14, § 1; Mont Const (1889), art 19, § 8; Utah Const (1895), art 23, § 3.
The Hawaii constitution provides for ratification at a general election by a majority of all the votes tallied upon the question, such majority constituting at least 35% of the total vote cast at such election, or at a special election by a majority constituting at least 35% of the total number of registered voters. Hawaii Const (1950), art 15, § 2.
E.g., 18 Political Science Quarterly 480, 509, with particular reference to the Virginia Constitution of 1902.
Swank v. Tyndall, 226 Ind 204, 221 (78 NE2d 535, 542).
People v. Board of State Canvassers, 323 Mich 523, 528.
All parties hereto have referred to the briefs heretofore filed with this Court in People v. Board of State Canvassers, supra. | [
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Edwards, J.
Clarence Cadeau was committed to the hoys’ vocational school by the Wayne county probate court in April, 1954. On July 7, 1954, while he was operating a water-extracting machine in the laundry at boys’ vocational school, he received severe and disabling injuries to his left arm. At that time Clarence was 14 years old.
A petition was filed by the boy’s father, as next friend, against boys’ vocational school, the department of social welfare, and the State of Michigan, alleging violation of the Michigan statutes governing child labor; alleging negligence in the maintenance of the laundry machinery, and in the training and assignment of Clarence to the particular machine on which he was hurt; and alleging that the laundry was a proprietary function of the boys’ vocational school.
The petition was heard in full before the court of claims. The circuit judge, sitting in that court, entered an opinion containing complete findings of fact. He did not find negligence as to the defendants in relation to operation of the laundry. He did find that Clarence’s own negligence was a proximate cause of his injury, and that his claim was barred thereby. He also found facts which indicated that the laundry operation was a nonproprietary governmental function and, relying upon the majority holding in Richards v. Birmingham School District, 348 Mich 490, he held the suit barred by the doctrine of governmental immunity. He also held that the statutes governing child labor were not applicable to inmates of the boys’ vocational school. Only the last of these issues is preserved for our review by this appeal.
The court of claim’s opinion bearing on this issue was as follows:
“The petitioner urges that this ward falls under the protection of PA 1909, No 285, as amended (CL 1948, § 408.51 et seq., as amended [Stat Ann 1950 Bev § 17.11 et seq.]), as well as the Hittle act, being CL 1948, § 409.1 et seq. (Stat Ann 1950 Bev § 17.701 et seq.). These acts seek to regulate the employment of men, women, and children. The work done by boys confined to the vocational school is for the purpose of training and for the additional purpose of keeping the institution running on a day-to-day basis. It would be just as logical to say that every 14-year-old student attending manual training classes in the schools of Michigan were subject to acts regulating employment. In the opinion of the court, the legislature did not intend that a boy committed to the boys’ vocational school would be subject to these acts (CL 1948, §409.14 [Stat Ann 1950 Bev §17-.714]).”
Appellant claims that the statutes cited do apply to boys’ vocational school inmates, that they act to exempt the current claim from the doctrine of governmental immunity, and that violation of these statutes as to a minor is negligence which serves to remove the defense of contributory negligence.
The decisive question on this appeal is, therefore, whether or not the 2 statutes governing child labor in Michigan (PA 1909, No 285, as amended [CL 1948, § 408.51 et seq., as amended (Stat Ann 1950 Rev §17.11 et seq.)], and PA 1947, No 157 [CL 1948, § 409.1 et seq. (Stat Ann 1950 Rev § 17.701 et seq.)]) apply to inmates of the boys’ vocational school.
The sections of PA 1909, No 285, primarily relied upon by appellant are:
“Sec. 10. No child under 15 years of age shall be employed, permitted or suffered to work in or in connection with any mercantile institution, store, office, hotel, laundry, manufacturing establishment * * * factory or workshop, quarry, telegraph or messenger service within this State during school hours * * *
“(a) It shall be the duty of every mercantile institution, store, hotel, office, laundry, manufacturing establishment * * * or any person coming within the provisions of this act to keep a register in which will be recorded the name, birthplace, age and place of residence of every person employed under the age of 18 years and it shall be unlawful for any such establishment or person to hire or employ or permit to be hired or employed or suffer to work, any child under the age of 18 years without [unless] there is first provided and placed on file in the business office thereof a permit or certificate. Such permit or certificate shall be issued by the superintendent of schools of the school district in which such child resides, or the county commissioner of schools, or some one duly authorized by him in writing, any of whom shall have power to administer oaths in relation thereto.”
“Sec. 11. No person under the age of 18 years shall be allowed to clean machinery while in motion nor employed in any hazardous employment, or where their health may be injured or morals depraved, nor shall females be unnecessarily required 'in any employment to remain standing constantly * * * Provided, however, That any person over 16 and under 18 years of age may be employed in any occupation, other than the cleaning of machinery while in motion, subject to the following conditions: Such employment shall be for a total of not more than 54 hours in any week nor more than 10 hours in any 1 day.”
Those of PA 1947, No 157, are as follows:
“Sec. 3. No minor under 18 years of age shall be employed, permitted or suffered to work in, about, or in connection with, any gainful occupation, not excepted by this act, unless and until the person employing such minor shall procure from the minor and keep on file a work permit for each minor so employed, issued by the superintendent of schools.”
“Sec. 12. The commissioner of labor shall have authority to establish standards not inconsistent with the provisions of this act as to the working-conditions of minors under 18 years of age in various types of employment and as to safety, health and morals.”
The language of these acts certainly prohibits the employment of a 14-year-old boy in a laundry absent the work permit called for therein. The significance of the term “employment” as to those statutes is further emphasized by their titles:
“An act to provide for the creation of a department of labor; to prescribe its powers and duties; to regulate the employment of labor; to prescribe certain equipment and conditions of employment; and to prescribe penalties for the violation of this act.” (Emphasis supplied.) PA 1909, No 285, as amended by PA 1945, No 220.
“An act to provide for the legal employment and protection of minors under 18 years of age; to define legal employment; to prohibit the employment of minors under 18 years of age without work permit, except as otherwise provided in this act; to provide for the issuance and revocation of work permits and age certificates, to provide for the regulation of hours and conditions of employment of minors; and to provide for the enforcement of this act and prescribe penalties for the violation of this act.” (Emphasis supplied.) PA 1947, No 157.
Commitments to boys’ vocational school are governed by PA 1925, No 185, as amended (CL 1948 and CLS 1956, § 803.101 et seq., as amended [Stat Ann 1954 Rev and Stat Ann 1959 Cum Supp § 28-.1961 et seq.]).
The purpose of those commitments is statutorily spelled out thus:
■“The State shall at all times stand in the place and relationship of parent and legal guardian to each boy sent to said boys’ vocational school during his residence therein or while under the control thereof; and the superintendent shall represent the State in such relationships. Each boy sent to such school shall be subject to the training, education and discipline herein prescribed by the commission.” CLS 1956, § 803.105 (Stat Ann 1954 Rev § 28.1965).
The use of the laundry as a part of the vocational training at boys’ vocational school was recommended to the school by a governor’s commission. The superintendent of the boys’ vocational school testified:
“A. "Well, the present program at the school is the direct result of a study, a survey, made under Governor Kelly in 1945. At that time the governor appointed a committee of close to a hundred people, representing all the different areas of interest in child welfare, and they thoroughly surveyed the school and made certain recommendations in the vocational areas, and specifically they recommended that the vocational work for younger boys should be exploratory in nature. For example, the boys whose ages ranged from 12 to 14 years might be expected to explore the various occupational fields represented in the institution.
“Q. Now, did the committee make recommendations as to in what fields vocational training should be furnished?
“A. They did.
“Q. And what fields did those include?
“A. Machine shop, painting and decorating, hating, cooking, ground maintenance, printing, drafting, farming, building maintenance, woodworking, sheet-metal work, horticulture, laundering, tailoring, shoe repair, barbering, and auto mechanics.
“Q. Can you tell me, do you have — or has the school set up training in each of those subjects that you just enumerated?
“A. With the exception of auto mechanics, they have.”
The training program was described thus by the laundry supervisor:
“A. The program is that any boy starting in on the laundry detail starts in on the flat-work ironer, and works his way up to the other various assignments on a seniority basis. He goes from the flat-work ironers to the extractors, to the driers, and then to the washing machines, giving each boy an opportunity to work each individual job.
“Q. About how long, on the average, is each boy assigned to your laundry?
“A. We have boys that stay 30 days, we have boys that stay 6 months. The average boy who is interested in the laundry will be there for from 5 to 6 months.
“Q. Five to 6 months?
“A. That’s right.
“Q. Well, the boys that complete the course, what evidence is given to them?
“A. The boy who completes a course is given a certificate of endeavor for the period of time he has worked in the laundry.
“Q. And that, do I understand, normally takes 5 to 6 months?
“A. We like to have them spend at least 4 months in order to be eligible for a certificate, yes, sir.
“Q. Now' do you — the average boy that completes .the course, is he qualified to go out and get a job in a commercial laundry?
“A. I would say yes, sir.
“Q. Do any of your boys go out and get jobs?
“A. We hear from several of the boys who have gone out and gotten a job in laundries and are doing well by themselves.”
The testimony indicates that Clarence had been assigned to the laundry as a result of classification study:
“Q. Now can you tell me what factors enter into the consideration of the committee in making the assignment that you have indicated that was given ■to Clarence Cadeau on April 22, 1954?
“A. Well, in arriving at this assignment we took into account the fact that Clarence had an active dislike of academic subjects. We thought, too, that he should receive vocational training in an occupation, because the indications were that he would need to be self-supporting at an early age. We were aware of the fact that Clarence lacked the intellectual capacity and also the academic achievement for some of our skilled-training assignments.”
■ It is apparent that Clarence’s assignment to the laundry was a part of the vocational education and training program for which he was sent to the boys’ vocational school.
The assignment to the laundry was made under the authority of the superintendent of the boys’ vocational school. CLS 1956, § 803.105 (Stat Ann 1954 Rev § 28.1965). It is obvious that the work permit provisions of the statutes cited which refer to a permit or certificate from “the superintendent of schools of the school district in which such child resides, or the county commissioner of schools” were not designed to apply to the situation of a boy committed to boys’ vocational school.
More directly, however, we believe that the word “employment” as used in PA 1909, No 285, and PA 1947, No 157, was not intended to apply to the vocational training of a boy committed to the boys’ vocational school.
Somewhat similar problems have been dealt with by other courts. In a negligence action brought against a public technical institute wherein the injured party was a pupil, an English court said:
“A school or college is not a factory and the scholars or pupils are employed neither by those who own nor by those who teach in the school. Nothing, I think, would have caused parliament more surprise when discussing the merits and difficulties of the new factory legislation in 1937 than to be told that they were legislating for schools, colleges and technical institutes. There is much in the factories act, 1937, which is applicable to any place where work is done upon machines, but there are many other provisions in the act which are as clearly inapplicable to schools or institutes. If it were necessary I could, I think, support this view by referring to subsections 4 and 6 of section 152, the' latter of which deals with apprentices. Again section 154 and possibly section 104 tend to show that parliament had not the intention of legislating for schools, but was not unwilling to provide some machinery whereby the operation of the factories act could be applied to certain institutions and premises which are not factories. I think that those sections support the view that parliament did not intend to cover by the words ‘persons who are employed’ scholars, pupils and learners.” Weston v. London County Council, [1941] 1 KB 608, 613 (110 LJKB 332, 165 LT 135).
See 163 ALB 474.
In relation to a suit based upon still another vocational training school injury, the Wisconsin supreme court said:
“It is also clear from the provisions of the statute that unless the defendant was an employer the plaintiff was not an employee and the place where he was injured was not a place of employment.
“If the contention of the plaintiff is sound then every schoolroom is a place of employment and every pupil is- a frequenter, and the city or State maintaining the school, although acting in a governmental capacity, is liable for injuries sustained while in the course of receiving instruction. There is nothing in the safe-place statute which indicates that the legislature intended any such result. A person receiving instruction in a public school, whether the person be a minor or an adult, is not an employee and the place where he receives instruction is not a place of employment.” Kirchoff v. City of Janesville, 255 Wis 202, 206 (38 NW2d 698).
See, also, In re Abbott’s Estate, 311 Mich 35.
We note, of course, the series of excellently reasoned cases from the State of New York, in which recovery by inmates of State institutions has been sustained. These are based, however, upon a New York statute (to which as yet there is no Michigan counterpart) which allowed suits for negligent injury to be brought against the State by inmates of its public institutions. Robinson v. State, 242 App Div 94 (273 NYS 465), reversing 150 Misc. 593; Gould v. State, 196 Misc 488 (92 NYS2d 251); Oliver v. State of New York, 17 Misc 2d 1018 (186 NYS2d 151).
This Court has been vigilant in enforcement of the child labor laws so as to give effect to their stated purpose. Fritz v. Christian Reformed City Mission Board, 281 Mich 582; Field v. Jack & Jill Ranch, 343 Mich 273. And we conceive of many reasons why a right of action for negligent injury, or coverage under the workmen’s compensation act, should be provided for inmates of State institutions. See 1 Larson’s Workmen’s Compensation Law, § 47.31. But we cannot, within our judicial function, extend the influence of statutes beyond their wording and intent.
We cannot find in these laws any language giving authorization of suit by this claimant. Nor do we believe that any reasonable interpretation of legislative intent as applied to the term “employment” in the 2 statutes upon which the present claim is based can be held to include vocational training at the boys’ vocational school.
Affirmed. No costs, a public question being involved.
Dethmers, C. J., and Carr, Kelly, Smith, Black, and Kavanagh, JJ., concurred.
Souris, J., did not sit.
CL 1948, § 408.60 (Stat Ann 1950 Rev § 17.20).
CL 1948, § 408.61 (Stat Ann 1950 Rev § 17.21).
CL 1948, § 409.3 (Stat Ann 1950 Rev § 17.703).
CL 1948, § 409.12 (Stat Ann 1950 Rev § 17.712).
It is likewise clear from this record that under department of labor regulations no sueh permits are issued for employment of boys under 15 around moving machinery. | [
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Griffin, J.
In this products liability case alleg ing negligent failure to warn, we must decide whether the manufacturer of an above-ground swimming pool had a duty to warn plaintiff that serious or permanent injuries could result from a dive into the shallow end of the pool. Because a reasonably prudent person would recognize that a headfirst dive into observably shallow water carries with it substantial risk of serious injury, we would find as a matter of law that the defendant had no duty to warn plaintiff of this open and obvious danger. Since the trial court properly granted summary judgment for defendant, we would reverse the decision of the Court of Appeals.
i
This lawsuit against defendant Doughboy Recreational Industries, Inc., a pool manufacturer, arises out of a diving accident which occurred in September 1978. Plaintiff David Glittenberg, then thirty years old, dove off the edge of his neighbor’s above-ground swimming pool into three and one-half feet of water and struck his head on the bottom, rendering him a quadriplegic. The details surrounding the accident are recounted by plaintiff in his deposition.
On the day in question, plaintiff accompanied his ex-wife Connie Glittenberg, to the home of neighbors Robert and Dianne Wilcenski. Plaintiff carried with him a container of beer that he had been drinking while splitting wood at his residence. He consumed one or two additional beers at his neighbors’ house before he dove into their pool. The shallow end of the Wilcenski pool was three feet deep and the other end was seven feet in depth. Plaintiff testified that he had been in the pool on at least two occasions prior to the accident and had observed others in the pool at various times as well. Thus, he was familiar with the shallow end of the pool and its three-foot depth. He was able to discern where the shallow water ended and the deep water began; plaintiff acknowledged that he did not need depth markers to remind him of the water’s depth.
Connie Glittenberg was basking in a floating chair in the deep end of the pool. Plaintiff attempted a "shallow” or "racing” dive into the shallow end with the intention of swimming across the pool to his wife. Tragically, he never made it.
Plaintiff testified that he did not slip or trip when making the dive. He was an experienced swimmer, having received instruction in both swimming and diving in high school and lifesaving certification which qualified him to become a lifeguard. As a result of this training, plaintiff admitted in his deposition testimony that he knew serious injury could result from diving into shallow water. However, he testified that "]j]ust exactly what type of injury would result from it, I couldn’t have said at the time.”
No warning against diving was posted on or near the pool. Warning labels and instructions for posting the labels were provided by defendant to the original purchaser of the pool, Fred Bancroft. However, the warning labels were not placed on the pool by Mr. Bancroft or by the Wilcenskis, who purchased the pool from Bancroft.
Plaintiff sued defendant, the pool manufacturer, and others, alleging in his complaint failure "to warn the Plaintiff of the dangerous conditions existing in the pool . . .
On January 20, 1984, defendant moved for summary judgment pursuant to GCR 1963, 117.2(1), alleging failure to state a claim. The motion was predicated on the "open and obvious danger” rule —a manufacturer has no duty to warn of dangers involved in the use of simple and otherwise non-defective products which are so open and obvious that a reasonably prudent user would require no warning. The trial court granted the motion on April 9, 1984. Plaintiff subsequently filed a motion for rehearing, which was denied on May 2, 1985.
Plaintiff filed a timely claim of appeal, and the Court of Appeals reversed on January 17, 1989. 174 Mich App 321; 435 NW2d 480 (1989). The Court opined that the "open and obvious danger” rule relied upon by the trial court is no longer viable in Michigan and that, at any rate, the risk of serious injury, i.e., quadriplegia, is not an obvious danger:
We do not believe the risk is open and obvious. We believe the risk of serious injury, in this case paraplegia, is not obvious in the absence of some form of warning. A simple act of pleasure on a hot summer’s day, a dive into a pool, can result in a lifetime of heartache, frustration, pain and loss. Nothing in the appearance of the pool itself gives a warning of the very serious consequences to which a mundane dive can lead. Nor are we convinced that the danger of serious injury from a dive is a risk of which the public is generally aware. [174 Mich App 326.]
We then granted leave to appeal. 433 Mich 880 (1989).
ii
Typically, the perimeters of appellate review are defined by the procedural posture of the case. In this instance, we are called upon to review the disposition of a pretrial motion for summary judgment. Although defendant’s motion was brought pursuant to GCR 1963, 117.2(1), failure to state a claim, the record makes clear that the parties, the trial court, and the Court of Appeals relied on matters outside of the pleadings—most notably plaintiff’s deposition testimony—to argue and rule on the motion. In such a situation, even though the parties and the lower courts have referred to the motion as one for failure to state a claim, we will treat it as one brought pursuant to then GCR 1963, 117.2(3), under which the court may properly consider matters outside of the pleadings.
A federal rule, FR Civ P 12(b)(6), which was the model for the former GCR 1963, 117.2(1) and the current MCR 2.116(C)(8), provides that a dismissal is appropriate if a pleading fails to state a claim upon which relief can be granted. However, the federal rule also states that
[i]f, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. [FR Civ P 12(b).]
Although no analogous provision appears in our court rules, Michigan appellate courts have previously reviewed the disposition of a motion for summary judgment as though it were brought under GCR 1963, 117.2(3), or MCR 2.116(0(10), where the parties have gone outside the pleadings and even though the parties and the lower courts have labeled the motion as one for failure to state a claim under MCR 2.116(C)(8) or GCR 1963, 117.2(1). See, e.g., Velmer v Baraga Area Schools, 430 Mich 385, 389; 424 NW2d 770 (1988); Ross v Jaybird Automation, Inc, 172 Mich App 603, 606; 432 NW2d 374 (1988); Huff v Ford Motor Co, 127 Mich App 287, 293; 338 NW2d 387 (1983). Thus, we will treat the present motion as if it had been brought pursuant to GCR 1963, 117.2(3).
Such a motion tests the factual basis of a plaintiff’s claim and may be granted only if, giving " 'the benefit of any reasonable doubt to the opposing party,’ ” it is determined that " 'there is no genuine issue as to any material fact.’ ” Rizzo v Kretschmer, 389 Mich 363, 372; 207 NW2d 316 (1973).
hi
Actionable negligence presupposes the existence of a legal relationship—in other words, a duty. Clark v Dalman, 379 Mich 251; 150 NW2d 755 (1967). This maxim applies as a matter of course to products liability actions. A prima facie case of negligent failure to warn requires the plaintiff to demonstrate that the defendant manufacturer owed the plaintiff a duty to warn of the danger. See Antcliff v State Employees Credit Union, 414 Mich 624; 327 NW2d 814 (1982); Moning v Alfono, 400 Mich 425; 254 NW2d 759 (1977). As explained by this Court in Antcliff, supra, pp 630-631:
"A duty, in negligence cases, may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.” Prosser, Torts (4th ed), § 53, p 324. The terse legal conclusion that a duty is owed by one to another represents a judgment, as a matter of policy, that the latter’s interests are entitled to legal protection against the former’s conduct.
It is equally well established that the threshold issue of the existence of a duty is a question of law for the court to decide:
It is generally agreed that the duty question— "whether, upon the facts in evidence, such a relation exists between the parties that the community will impose a legal obligation upon one for the benefit of the other”—is to be decided by the court.
Plaintiffs contend, however, that where the scope and nature of the relationship between the plaintiff, defendant and others determines whether a duty is owed, the question is for the jury.
It is commonplace to say that a particular defendant owes a duty to a particular plaintiff, but such a statement, although not incorrect, merges two distinct analytical steps. It is for the court to determine, as a matter of law, what characteristics must be present for a relationship to give rise to a duty the breach of which may result in tort liability. It is for the jury to determine whether the facts in evidence establish the elements of that relationship. Thus, the jury decides the question of duty only in the sense that it determines whether the proofs establish the elements of a relationship which the court has already concluded give rise to a duty as a matter of law.
It is also for the court to determine what evidence is minimally necessary to establish the elements of a relationship on which tort liability may be premised. [Smith v Allendale Mutual Ins Co, 410 Mich 685, 713-715; 303 NW2d 702 (1981). See also Antcliff, supra; Moning, supra; Elbert v Sagi naw, 363 Mich 463, 476; 109 NW2d 879 (1961); Prosser & Keeton, Torts (5th ed), § 37, p 236.]
A manufacturer is subject to liability for failure to warn about a risk inherent in the way a product is designed that is related to the intended uses, as well as the reasonably foreseeable uses of the product. However, the courts "have never gone so far as to make sellers insurers of their products and thus absolutely liable for any and all injuries sustained from the use of those products.” Prentis v Yale Mfg Co, 421 Mich 670, 682-683; 365 NW2d 176 (1984). In the failure to warn theory of liability,
the danger is not in the manufacture but in the product itself, and its availability is deemed beneficial notwithstanding the presence of danger. Furthermore, since almost every product would appear to have some potential for inflicting harm, and since it would appear that instructions and warnings could not reasonably be required in the marketing of every product, a rule as to standards of conduct must be applied in determining the circumstances under which a warning or instruction is required so as to keep the product from being considered "defective” without the warning. [Anno: Failure to warn as basis of liability under doctrine of strict liability in tort, 53 ALR3d 239, § 2, pp 243-244.]
The existence of a duty in failure to warn cases has consequently been qualified, most notably by the "open and obvious danger” rule. As explained in Prosser & Keeton, supra, § 96, p 686:
It is often said that there is no duty to warn of obvious dangers. It is clear that there should be no liability for failing to warn someone of a risk or hazard which he appreciated to the same extent as a warning would have provided.[ ]
The court in the oft-cited case of Jamieson v Woodward & Lothrop, 101 US App DC 32; 247 F2d 23 (1957), cert den 355 US 855 (1957), described the underlying concept of the "open and obvious danger” rule:
It seems clear under all or any of the cases or text authorities that, where a manufactured article is a simple thing of universally known characteristics, not a device with parts or mechanism, the only danger being not latent but obvious to any possible user, if the article does not break or go awry, but injury occurs through a mishap in normal use, the article reacting in its normal and foreseeable manner, the manufacturer is not liable for negligence. [Id. at 37.]
The Jamieson court set forth a number of hypothetical examples:
The law does not require that an article be accident-proof or incapable of doing harm. It would be totally unreasonable to require that a manufacturer warn or protect against every injury which may ensue from mishap in the use of his product. Almost every physical object can be inherently dangerous or potentially dangerous in a sense. A lead pencil can stab a man to the heart or puncture his jugular vein, and due to that potentiality it is an "inherently dangerous” object; but, if a person accidentally slips and falls on a pencil-point in his pocket, the manufacturer of the pencil is not liable for the injury. He has no obligation to put a safety guard on a lead pencil or to issue a warning with its sale. A tack, a hammer, a pane of glass, a chair, a rug, a rubber band, and myriads of other objects are truly "inherently dangerous,” because they might slip . . . [b]ut the doctrines fashioned by the law for inherently dangerous objects do not encompass these things. A hammer is not of defective design because it may hurt the user if it slips. A manufacturer cannot manufacture a knife that will not cut or a hammer that will not mash a thumb or a stove that will not burn a finger. The law does not require him to warn of such common dangers. [Id., p 35. See also American Law of Products Liability, 3d, § 33:25, pp 52-55.]
The "open and obvious danger” rule, although abandoned in the jurisdiction of its origin (New York) and some states, remains a broadly accepted principle of products liability law. See anno: Products liability: Modern status of rule that there is no liability for patent or obvious dangers, 35 ALR4th 861, and cases collected therein. The current vitality of the "open and obvious danger” rule in Michigan is at the heart of the present controversy.
In Fisher v Johnson Milk Co, 383 Mich 158; 174 NW2d 752 (1970), this Court first articulated the rule that a defendant manufacturer has no duty to warn of a known or obvious danger associated with the use of a simple tool. In Fisher, the plaintiff, an attorney, purchased from the defendant a wire carrier made to carry four half-gallon bottles of milk. On one stormy day, as the plaintiff was carrying the full carrier into his house, he slipped and fell on some ice, causing the bottom of the carrier to strike the sidewalk and the bottles to break. The plaintiff cut his hand severely and sued the defendant for an alleged negligent failure to warn. In affirming summary judgment for the defendant, this Court stated:
There was no inherent, hidden or concealed defect in the wire carrier. Its manner of construction, how the bottles would rest in it, and what might happen if it were dropped, upright, on a hard surface below, with the possibility that the contained bottles might break, was plain enough to be seen by anyone including a patent attorney as well as a milk dealer. There is no duty to warn or protect against dangers obvious to all. [Fisher, supra, p 160.]
The Fisher Court, citing Jamieson, supra, recognized that no product is totally accident proof:
"If the manufacturer does everything necessary to make the machine function properly for the purpose for which it is designed, if the machine is without any latent defect, and if its functioning creates no danger or peril that is not known to the user, then the manufacturer has satisfied the law’s demands. ... In such cases, . . . the very nature of the article gives notice and warning of the consequences to be expected, of the injuries to be suffered. In other words, the manufacturer is under no duty to render a machine or other article 'more’ safe—as long as the danger to be avoided is obvious and patent to all.” [Id., pp 162-163, quoting Campo v Scofield, 301 NY 468, 472; 95 NE2d 802 (1950).][ ]
The Michigan courts have subsequently applied the "open and obvious danger” rule to diving accident cases alleging a manufacturer’s failure to warn—with varying results.
In Hensley v Muskin Corp, 65 Mich App 662; 238 NW2d 362 (1975), the Court of Appeals affirmed summary judgments on behalf of a pool manufacturer, retailer, and owner in a case in which the plaintiff dove off of a seven-foot garage roof into a four-foot deep swimming pool and complained that the defendants had a duty to warn him not to dive. The plaintiff was familiar with the pool and its shallow depth, having helped assemble the pool. The Court, citing Fisher, supra, held that none of the defendants "were under any duty to warn this plaintiff of an obviously dangerous use of an otherwise nondangerous product.” Hensley, supra, p 663.
However, in Horen v Coleco Industries, Inc, 169 Mich App 725; 426 NW2d 794 (1988), the Court of Appeals refused to apply the "open and obvious danger” rule. The plaintiff in Horen became a quadriplegic when he attempted a flat, shallow dive from a standing position on the deck of an above-ground pool into approximately four feet of water. The plaintiff, who had some swimming and diving experience, had observed others jumping and diving into the pool and had previously executed a successful shallow dive. The pool had a warning label affixed to the base of the chain-link fence adjoining the pool which read: "No Diving. Shallow Water.” The plaintiff did not see the sign. The trial court granted summary disposition in favor of the defendants, finding no duty to warn of an open and obvious danger inherent in a simple product. The Court of Appeals reversed, declining to follow Hensley, supra. Instead, the Court concluded that the open and obvious danger rule articulated in Fisher no longer accurately represented the law in Michigan since it subsequently had been modified by the more recent decision in Owens v Allis-Chalmers Corp, 414 Mich 413; 326 NW2d 372 (1982). The Horen Court explained:
Owens opined that a manufacturer is not automatically excused from responsibility merely by showing that the risks inhering in a simple tool or product are open and obvious. Id. at 424-425. Although such a determination may be utilized as one factor among others to conclude that the manufacturer has no duty to warn because the product is not unreasonably dangerous, the new test is whether the risks are unreasonable in light of the foreseeable injuries. Id. at 425. [Id., p 729.]
The Horen Court also found Hensley to be distinguishable on the facts, id., p 730, and held that there was evidence from which a jury could conclude that the manufacturer’s product posed an unreasonable and unforeseeable danger that death or paraplegia could result. Id., p 731.
Owens, supra, was a lawsuit which alleged negligent design of a forklift for failure to provide a driver restraint. The plaintiff’s husband was killed when, for an undetermined reason, the forklift which he was operating left the roadway, struck a concrete post, and rolled over. The forklift was tested after the accident and found to be in perfect mechanical order. The trial court directed a verdict in favor of the defendant manufacturer. The Court of Appeals affirmed, finding that the risk of injury should have been obvious to the decedent, an experienced forklift operator. This Court also affirmed the directed verdict, but for different reasons. The Owens Court noted that the language in Fisher, supra, "would tend to support the proposition that liability does not attach when the dangers are patent and obvious.” Owens, supra, p 423. The Owens Court nevertheless refused to apply the "open and obvious danger” rule to the facts, stating:
Our Court of Appeals has essentially limited the language in our decision in Fisher by the fact that Fisher involved a simple product or tool. Coger v Mackinaw Products Co, 48 Mich App 113; 210 NW2d 124 (1973); Byrnes v Economic Machinery Co, 41 Mich App 192; 200 NW2d 104 (1972); see, also, Jennings v Tamaker Corp, 42 Mich App 310; 201 NW2d 654 (1972). We believe that such a limitation is proper. Obvious risks may be unreasonable risks, and there is no justification for departing from general negligence and breach of implied warranty principles merely because the dangers are patent.
This is not to say that the obviousness of the danger is irrelevant. As in Fisher, the obviousness of the risks that inhere in some simple tools or products is a factor contributing to the conclusion that such products are not unreasonably dangerous. The test, however, is not whether the risks are obvious, but whether the risks were unreasonable in light of the foreseeable injuries. [Id., p 425.]
Utilizing this latter test, the Owens Court concluded that the plaintiff’s evidence did not raise an issue of fact concerning any unreasonable risk at the time of the design or manufacture of the vehicle; a directed verdict was therefore properly granted in favor of the defendant manufacturer.
Did the Owens decision overrule Fisher and preclude application of the "open and obvious danger” rule to the present facts? The Court of Appeals panel in the instant case, citing Horen, supra, thought so, and plaintiff now argues that the proper test is not whether the risks are open and obvious, but whether they are unreasonable in light of foreseeable injuries. Cf. Francisco v Manson, Jackson & Kane, Inc, 145 Mich App 255; 377 NW2d 313 (1985); Casey v Gifford Wood Co, 61 Mich App 208, 212-213; 232 NW2d 360 (1975). However, several factors contradict such a conclusion, leading us to hold that the Owens decision did not repudiate the "open and obvious danger” rule.
First, Owens is factually inapposite. Owens, unlike Fisher and the instant case, involved a claim that a complex machine was defectively designed because it lacked a necessary safety device. It was not a failure to warn case. In fact, the Owens Court expressly noted that it did not decide any issue regarding the defendant’s alleged duty to warn of a product defect. Owens, supra, p 427. It is well recognized that design defect and duty to warn cases are two separate and distinct theories of products liability which entail different inquiries.
Moreover, we do not find in the language of the Owens decision a manifest intent to overrule Fisher. The language of the decision merely relegates the "open and obvious danger” rule to a narrower class of cases. The Owens Court adopted the limitation placed on the Fisher holding by appellate courts restricting application of the "open and obvious danger” rule to cases involving simple tools and ratified the previously recognized distinction between simple and complex products. See, e.g., Mach v General Motors Corp, 112 Mich App 158; 315 NW2d 561 (1982), Durkee v Cooper of Canada, Ltd, 99 Mich App 693; 298 NW2d 620 (1980), lv den 417 Mich 910 (1983), Graham v Ryerson, 96 Mich App 480; 292 NW2d 704 (1980), Coger v Mackinaw Products Co, supra, Jennings v Tamaker Corp, supra, and Byrnes v Economic Machinery Co, supra.
Failure to warn cases decided after Owens have continued to endorse the "open and obvious dan ger” rule. Less than one month after Owens was released, this Court decided Antcliff v State Employees Credit Union, supra, which approvingly cited Fisher and reaffirmed that the "open and obvious danger” rule is still good law where simple products are involved. The plaintiff in Antcliff was seriously and permanently injured when the support system of a powered scaffold on which he was standing gave way unexpectedly and fell to the ground. The plaintiff’s safety line apparently failed, and he fell with the scaffold. Plaintiff alleged that the manufacturer breached its duty to instruct on or give directions for the safe rigging of the scaffold. This Court held on the facts of the case that the defendant was under no duty to instruct or give directions for the safe rigging of its product:
[0]ur prior decisions support a policy that a manufacturer’s standard of care includes the dissemination of such information, whether styled as warnings or instructions, as is appropriate for the safe use of its product. If warnings or instructions are required, the information provided must be adequate, accurate and effective.
This policy has limits. It has been applied in instances where the product itself had dangerous propensities. Out of recognition that the manufacturer’s interests are also entitled to protection, this policy has not been applied in situations involving known or obvious product-connected dangers where the product itself is not defective or dangerous. Fisher v Johnson Milk Co, Inc, 383 Mich 158; 174 NW2d 752 (1970) (wire milk bottle carrier). See, also, Anno: Products liability—duty to warn, 76 ALR2d 9, 28-37, and cases cited therein.
In the instant case, Spider manufactured the scaffold which happened to be involved in a con struction site accident. The scaffold was not found by the jury to be defective. The most that can be said of the accident is that the load-bearing capacity of the rigging system designed by plaintiff Howard Antcliff and his co-worker was insufficient to support the powered scaffold. This led to the system’s collapse. We are unable to conclude that the scaffold’s weight was a dangerous propensity which necessitates vindication of the policy. In addition, plaintiff Howard Antcliff and his coworker were both journeyman painters. In view of their knowledge and experience as riggers, we feel constrained to charge them with full appreciation of the danger of inadequately supporting the scaffold on which they worked. As a result, the circumstances here (a non-defective product lacking in dangerous propensities and a known or obvious product-connected danger) do not support application of the policy which would require Spider to provide instructions for the safe rigging of its product. [Antcliff, supra, pp 638-640. Emphasis added.]
Numerous other post-Owens cases either have followed the "open and obvious danger” rule or recognized but distinguished it on the basis of the simplicity or complexity of the product. See, e.g., Michigan Mutual Ins Co v Heatilator Fireplace, 422 Mich 148; 366 NW2d 202 (1985), Wiegerink v Mitts & Merrill, 182 Mich App 546; 452 NW2d 872 (1990), Wessels v E W Bliss Co, Inc, 180 Mich 440; 447 NW2d 758 (1989), Reeves v Cincinnati, Inc, 176 Mich App 181; 439 NW2d 326 (1989), Pettis v Nalco Chemical Co, 150 Mich App 294; 388 NW2d 343 (1986), Trotter v Hamill Mfg Co, 143 Mich App 593; 372 NW2d 622 (1985), Warner v General Motors Corp, 137 Mich App 340; 357 NW2d 689 (1984), Bullock v Gulf & Western Mfg, 128 Mich App 316; 340 NW2d 294 (1983), Bishop v Interlake, Inc, 121 Mich App 397; 328 NW2d 643 (1982), and Maletich v Zemaiduk, 115 Mich App 206; 320 NW2d 72 (1982). Three recent cases following the "open and obvious danger” rule are diving accident cases. See Spaulding v Lesco Int’l Corp, 182 Mich App 285; 451 NW2d 603 (1990); Johnson v Coleco Industries, Inc, unpublished opinion per curiam of the Court of Appeals, decided January 17, 1985 (Docket No. 76152), and Johnson v Park Shore Marina, Docket No. K86-452-CA8 (WD Mich, 1988) , aff’d 872 F2d 1026 (CA 6, 1989), cert den 493 US 853; 110 S Ct 155; 107 L Ed 2d 113 (1989).
The Court of Appeals in the instant case "conducted a thorough review of swimming pool injury cases in other jurisdictions” and conceded that "[generally the courts have been unwilling to impose a duty to warn on the manufacturer or have concluded that, because of a plaintiff’s swimming experience and knowledge of diving procedures, the absence of a warning was not a proximate cause of plaintiff’s injury.” 174 Mich App 325-326. See Kelsey v Muskin, Inc, 848 F2d 39 (CA 2, 1988), cert den 488 US 1030 (1989), Caraballo v United States, 830 F2d 19 (CA 2, 1987), Colosimo v May Dep’t Store Co, 466 F2d 1234 (CA 3, 1972), Winant v Carefree Pools, 709 F Supp 57 (ED NY, 1989) , aff’d without opinion 891 F2d 278 (CA 2, 1989), Dowen v Hall, 191 Ill App 3d 903; 138 Ill Dec 933; 548 NE2d 346 (1989), Amatulli v Delhi Construction Corp, 156 AD2d 500; 548 NYS2d 774 (1989), Howard v Poseidon Pools, Inc, 72 NY2d 972; 530 NE2d 1280 (1988), Caris v Mele, 134 AD2d 475; 521 NYS2d 260 (1987), Belling v Haugh’s Pools, Ltd, 126 AD2d 732; 511 NYS2d 732 (1987), Boltax v Joy Day Camp, 67 NY2d 617; 490 NE2d 527 (1986), Smith v Stark, 67 NY2d 693; 490 NE2d 841 (1986); Smith v City & Co of Denver, 726 P2d 1125 (Colo, 1986), Vallillo v Muskin Corp, 212 NJ Super 155; 514 A2d 528 (1986), Clark v Lumbermans Mutual Ins Co, 465 So 2d 552 (Fla, 1985), McCormick v Custom Pools, Inc, 376 NW2d 471 (Minn App, 1985), Benjamin v Deffet Rentals, Inc, 66 Ohio St 2d 86; 419 NE2d 883 (1981), Fuller v California, 51 Cal App 3d 926; 125 Cal Rptr 586 (1975), Smith v American Flyers, Inc, 540 P2d 1212 (Okla, 1975), and Telac v Maszczenski, 248 Md 476; 237 A2d 434 (1968).
Despite this abundance of authority favoring application of the "open and obvious danger” rule to the present circumstances, the Court of Appeals in the instant case nevertheless chose to adopt the reasoning of a federal case which rejected application of the "open and obvious danger” test to an above-ground pool diving accident. In Corbin v Coleco Industries, Inc, 748 F2d 411 (CA 7, 1984), the plaintiff sustained a severe injury from a headfirst dive into a shallow above-ground pool. The trial court granted summary judgment for the defendant manufacturer, finding "no duty to warn of open and obvious dangers . . . .” 748 F2d 413. The federal Court of Appeals reversed, upon the basis of testimony concerning the "crucial point” that
even though people are generally aware of the danger of diving into shallow water, they believe that there is a safe way to do it, namely, by executing a flat, shallow dive. If people do in fact generally hold such a belief, then it cannot be said, as a matter of law, that the risk of spinal injury from diving into shallow water is open and obvious. Whether a danger is open and obvious depends not just on what people can see with their eyes but also on what they know and believe about what they see. In particular, if people generally believe that there is a danger associated with the use of a product, but that there is a safe way to use it, any danger there may be in using the product in the way generally believed to be safe is not open and obvious. [Corbin, supra, pp 417-418.][ ]
We are not persuaded by the reasoning of the Corbin court. Instead, we agree with those courts which have found the dangers of propelling what is typically a five-foot tall or more physical frame headfirst into observably shallow water merely three or four feet deep to be open and obvious.
An open and obvious danger has been defined as what is visible or well-known:
What is "open and obvious” has been defined as what is visible, what is a well known danger, or what is discernible by casual inspection. Thus, one cannot be heard to say that he did not know of a dangerous condition that was so obvious that it was apparent to those of ordinary intelligence. [American Law of Products Liability, 3d, § 33:26, p 56.]
In other words, what is "open and obvious” to all reasonable persons can be objectively determined:
[C]ourts have usually meant by "obvious danger” a condition that would ordinarily be seen and the danger of which would ordinarily be appreciated by those who would be expected to use the product. [Prosser & Keeton, supra, pp 686-687.]
The parties in the instant case do not seriously dispute that the above-ground swimming pool is a simple product. As the defendant notes, there is nothing deceiving about its appearance, nothing enigmatic about its properties. It has no mechani cal devices, but rather is an uncomplicated non-defective product with universally known characteristics.
The danger involved in diving into shallow water is obvious to the reasonably prudent user of such a product. The admonition "feet first” is a matter of common knowledge where shallow water or water of an unknown depth is involved. In the instant case, the shallowness of the water was clearly visible.
Plaintiff argues that while he was conscious of some danger inherent in diving into shallow water, he did not appreciate the extent or seriousness of the injury he could sustain ("[c]onsciousness of a vague danger, without appreciation of the seriousness of the consequences, may require the manufacturer to provide warning . . . .” Graham v Ryerson, 96 Mich App 480, 489; 292 NW2d 704 [1980]). However, a danger deemed to be "open and obvious” is a danger that is objectively anticipatable—the "open and obvious danger” rule is based upon what the user should have known. In our Anew, a reasonably prudent user of an above-ground pool knows or should know that serious injury, including paralysis, is a potential risk and probable result of a headfirst dive into visibly shallow water. The "open and obvious danger” rule is not dependent on the subjective knowledge of a particular user. To adopt a requirement that persons voluntarily confronting open and obvious dangers must also be subjectively aware of each and every potential consequence of their action would be to effectively extinguish the doctrine itself.
Moreover, as the court noted in Vallillo v Muskin Corp, supra, p 161, n 3, an above-ground pool diving accident case,
At oral argument plaintiff contended that the precise nature of the injury was a material part of the recognition of the danger and asserted that there was no showing that plaintiff knew that he possibly could have been crippled. Thus, he contends that only a warning of the full extent of the possible injury would be adequate. In some settings where no serious injury of any kind is apparent, such additional explicit warnings might be appropriate; but we cannot overlook the wide variety of injuries to be listed if warnings were legally required to contain a list of all possible injuries (or even the severest injury that could be reasonably expected, usually death). Warning labels cannot be effective if they take on the characteristics of drug package inserts. It is generally sufficient if the warning gives general notice of a danger and the conduct to be avoided. For example, signs giving a warning of high voltage electricity that pictorially indicate not to touch wires or equipment, utilizing a lightning symbol, or a poison label with a skull and cross-bones, or even road signs indicating danger areas need not indicate the particular permanent physical harm that might befall a person who disregards the warning.
By virtue of plaintiff’s knowledge and swimming experience, and plain common sense, plaintiff should have known of the danger of spinal injury. It would strain credibility to conclude that the risks were not appreciated by this plaintiff. It is clear from the plaintiff’s deposition testimony that with all of the relevant information in his grasp— full knowledge of the depth of the water, familiarity and prior experience with the pool, and better-than-average swimming and diving training—the plaintiff nevertheless attempted a flat dive into the shallow end of the pool. The record shows that the plaintiff realized the importance of entering the water on a horizontal plane so as to avoid hitting the bottom. He admitted that he was present when his wife told his daughter not to dive headfirst into the Wilcenskis’ pool. Plaintiff further testified:
Q. If they [the Wilcenskis] had told you that it was three feet deep, it was shallow, be careful, would they have been telling you anything you didn’t already know?
A. No, they wouldn’t have.
The ultimate conclusion to be made from the evidence of record is that the presence of a warning label on the pool in question would not have deterred the plaintiff. The material facts are not in dispute in this regard. Having already understood the open and obvious danger involved, and disregarding the same, a warning not to dive into the shallow end of the pool would not have given the plaintiff any additional information. A warning would have been superfluous. Plaintiff’s error in judgment, not a failure to warn, was the basis of this accident.
Since the dangers associated with diving into visibly shallow water in an above-ground pool are open and obvious to the reasonably prudent user, plaintiff in the instant case must, as a matter of law, be held to the knowledge and appreciation of the risk likely to be encountered in his headfirst dive. We would hold that the defendant manufacturer owed no duty to warn the plaintiff on the facts of this case. Plaintiff has consequently failed to make out a prima facie claim of negligence.
In light of this conclusion, that the defendant’s duty to warn is obviated by a danger which is open and obvious, we would reverse the decision of the Court of Appeals and reinstate the trial court’s order granting summary judgment in favor of defendant. However, for purposes of resolution of this case, in light of the plurality status of this opinion and the need of practical guidance for the trial court, we join in the statement by Justice Boyle that this case should be remanded to the trial court "for a determination of the threshold question whether the duty of reasonableness imposed on the defendant required warning.”
Riley, C.J., and Brickley, J., concurred with Griffin, J.
Boyle, J.
I agree with Justice Archer that a manufacturer’s duty to warn is not automatically excused when the risk of harm is obvious. The rule that a manufacturer owes no duty to warn of a danger "obvious to all” was stated by this Court in Fisher v Johnson Milk Co, Inc, 383 Mich 158; 174 NW2d 752 (1970). The Fisher doctrine, however, was seriously undermined by this Court’s decision in Owens v Allis-Chalmers Corp, 414 Mich 413; 326 NW2d 372 (1982). The Owens Court rejected the contention that a manufacturer owed no duty with respect to an alleged design defect in a forklift merely because the defect was obvious:
Obvious risks may be unreasonable risks, and there is no justification for departing from general negligence and breach of implied warranty principles merely because the dangers are patent. [Id. at 425.]
While the Owens Court approvingly cited case law which had limited the application of Fisher to situations involving simple products or tools, its reasoning undermined even this narrow ground for preserving the absolute rule of Fisher:
As in Fisher, the obviousness of the risks that inhere in some simple tools or products is a factor contributing to the conclusion that such products are not unreasonably dangerous. The test, however, is not whether the risks are obvious, but whether the risks were unreasonable in light of the foreseeable injuries. [Owens, supra, p 425.]
Thus, even when a simple product is at issue, the ultimate standard by which a manufacturer’s conduct must be measured is one of reasonableness. I cannot agree with the lead opinion’s characterization of Antcliff v State Employees Credit Union, 414 Mich 624; 327 NW2d 814 (1982), as "reaffirm[ing] that the 'open and obvious danger’ rule is still good law where simple products are involved.” Ante, p 691. The Court in Antcliff emphasized the sophisticated knowledge of the professional users of the powered scaffolding manufactured by the defendant in reaching the conclusion that the defendant did not owe a duty to instruct on the safe rigging of its powered scaffold. Id. at 640-641. Antcliff involved a complex product, and the holding that no duty existed turned on the sophisticated knowledge of the professional users of the product. While the Court properly considered the "known or obvious product-connected danger,” id. at 639-640, its analysis went beyond that single consideration. The Court performed the required risk/utility balance when it weighed against the fact of the users’ sophisticated knowledge the difficulty and burden to the manufacturer of providing instructions on the basic operations of its products. Id. at 640. In short, the Antcliff Court implemented the rule stated in Owens—that the obviousness of a risk inherent in a product is merely a factor to be considered in determining whether the manufacturer’s duty of reasonable conduct under the circumstances requires the manufacturer to provide warnings of such danger.
"The reasonableness of the risk of harm . . . turns on how the utility of the defendant's] conduct is viewed in relation to the magnitude of the risk.” Moning v Alfono, 400 Mich 425, 433-434; 254 NW2d 759 (1977). The threshold question in this case, never answered in the trial court, is whether the danger of serious injury resulting from diving into shallow, above ground pools, was of sufficient magnitude that a reasonable manufacturer would have warned of it. This is the inquiry whether the employer owed a duty to warn. The existence of a duty is a question of law. See, e.g., Smith v Allendale Mutual Ins Co, 410 Mich 685, 714-715; 303 NW2d 702 (1981). Nevertheless, the determination regarding the existence of a duty to warn requires inquiry into the factual questions of foreseeability and reasonableness: Were injuries such as plaintiff’s foreseeable, and, if so, was the frequency and, magnitude of such injuries such that a reasonable manufacturer would have warned? The existence of a duty to warn is a complex question, involving the familiar but sometimes nebulous considerations involved in the risk-utility balancing test. The balancing of the risk inherent in a product which does not contain warnings against the utility of that product is itself an inquiry into social policy. I would submit that the inquiry is therefore initially one for the court.
The trial court in this case did not apply the necessary balancing test to determine whether the danger of serious injury was of sufficient magnitude that a reasonable manufacturer would have warned of it. Rather, the trial court based its conclusion that no duty existed solely on the obviousness of the danger. I would remand to the trial court for a determination of the threshold question whether the duty of reasonableness imposed on the defendant required warning.
The judgment whether a warning was required in the circumstances of this case should not be made in a vacuum. The fundamental problem in cases such as this is that we lack the information necessary to make an intelligent decision, even with regard to the obviousness of the dangers of diving. We remain largely uninformed regarding such crucial questions as the efficacy of warnings against diving when they are provided, whether there is, in fact, any safe way to dive into shallow water, and what dangers are actually perceived by the users of above-ground pools. On remand, we urge the parties to provide evidence which will allow the court to evaluate the risk inherent in defendant’s product, and its obvious or nonobvious qualities.
Assuming a duty to warn, the question becomes the adequacy of the warnings which were enclosed with the pool when it was initially purchased, but apparently never used. The adequacy of the warnings is a question for the jury. See Pettis v Nalco Chemical Co, 150 Mich App 294, 303; 388 NW2d 343 (1986), lv den 426 Mich 881 (1986).
Levin, J., concurred with Boyle, J._
Cavanagh, J., concurred only in the result.
Archer, J.
The issues presented are whether the defendant pool manufacturer had a duty to warn the plaintiffs that serious or permanent injuries could result from a dive into the shallow end of their above-ground pool, and whether it was error for the trial court to grant summary judgment for the defendant either (a) because the plaintiffs failed to state a claim upon which relief could be granted, GCR 1963, 117.2(1), or (b) because there was an absence of a genuine issue of material fact in dispute and defendant was entitled to judgment as a matter of law pursuant to GCR 1963, 117.2(3).
I would hold that the trial court’s grant of the defendant’s motion for summary judgment was improper upon the basis of the erroneous conclusion that the obviousness of a risk totally excuses a manufacturer’s duty to warn. See Moning v Alfono, 400 Mich 425, 449-450; 254 NW2d 759 (1977), Antcliff v State Employees Credit Union, 414 Mich 624, 630; 327 NW2d 814 (1982), Owens v Allis-Chalmers Corp, 414 Mich 413, 425; 326 NW2d 372 (1982), and Horen v Coleco Industries, Inc, 169 Mich App 725, 729; 426 NW2d 794 (1988). The trial court failed to properly analyze the factual evidence presented in the plaintiff’s deposition. As a result, the trial court’s finding that the plaintiffs’ claim contained no genuine issues of material fact, was improper and precipitous under GCR 1963, 117.2(3), now MCR 2.116(0(10).
i
Duty is defined as the existence of a relationship between an actor and an injured person giving rise to a legal obligation on the actor’s part for the benefit of the injured person. Moning v Alfono, supra at 438-439. The question whether a duty exists presents an issue of law solely for the court. See Elbert v Saginaw, 363 Mich 463, 476; 109 NW2d 879 (1961); Antcliff v State Employees Credit Union, supra at 640. Generally, a manufacturer has a duty to warn of known dangers inherent in a product or its contemplated use. See Comstock v General Motors Corp, 358 Mich 163; 99 NW2d 627 (1959). However, this Court has also held that there is no duty to warn or protect against dangers obvious to all. Fisher v Johnson Milk Co, Inc, 383 Mich 158; 174 NW2d 752 (1970) (the manufacturer of a metal milk carrier was sued for a hand injury occurring when the carrier struck an icy sidewalk, breaking milk bottles). However, unlike the opinion for reversal, I do not believe the open and obvious test, standing alone, addresses the considerations necessary to resolve failure to warn issues.
A
In the years since Fisher, this Court has gradually departed from the premise that a manufacturer’s duty to warn is totally excused when a risk is open and obvious. In the more recent cases, the focus of the duty to warn is on whether the risk of danger is "reasonable.” Beginning with Moning, supra at 449-450 (a slingshot manufacturer was sued when a twelve-year-old lost sight in one eye after being struck by a slingshot pellet), this Court stated, "Even if a person recognizes that his conduct involves a risk of invading another person’s interest, he may nevertheless engage in such conduct unless the risk created by his conduct is unreasonable.” Likewise, in Antcliff, supra at 630 (a scaffold manufacturer was sued for permanent injuries occurring when the scaffold on which the plaintiff stood unexpectedly gave way and fell to the ground), "A manufacturer’s liability to a purchaser or a user of its product should be assessed with reference to whether its conduct [with regard to instructions or warnings] was reasonable under the circumstances.” The clearest pronouncement, however, appeared in Owens v Allis-Chalmers Corp, supra at 425 (a forklift manufacturer was sued when the plaintiff was killed in an accident in which the forklift driven by the plaintiff was found on the side of the road, turned over, having apparently hit a concrete pole), wherein this Court declared, "As in Fisher, the obviousness of the risks that inhere in some simple tools or products is a factor contributing to the conclusion that such products are not unreasonably dangerous. The test, however, is not whether the risks are obvious, but whether the risks were unreasonable in light of the foreseeable injuries.” (Emphasis added.) Moreover, our Court of Appeals in Horen v Coleco Industries, Inc, supra at 729 (a pool manufacturer was sued when the plaintiff was rendered a quadriplegic after a flat shallow dive into a four- to five-foot-deep pool), recently applied this standard to facts nearly identical to the case at bar, observing, "Although such a determination [that a risk is open and obvious] may be utilized as one factor among others to conclude that the manufacturer has no duty to warn because the product is not unreasonably dangerous, the new test is whether the risks are unreasonable in light of the foreseeable injuries.”
Accordingly, in the present case, the trial court’s grant of summary judgment under GCR 1963, 117.2(3), based upon the erroneous conclusion that, standing alone, the alleged obviousness of the risk of injury totally excused the defendant manufacturer’s duty to warn of inherently dangerous risks, was improper. The obviousness of a risk is only one factor to be considered in deciding whether a manufacturer has a duty to warn of product dangers and, therefore, cannot be the sole basis upon which a defective design case can be dismissed. Despite its obvious character, if a risk of danger is one not likely to be appreciated, see Prosser, Torts (4th ed), § 96, p 649, citing Hopkins v El DuPont de Nemours & Co, 199 F2d 930 (CA 3, 1952), then a manufacturer may still have a duty to warn of inherent dangers associated with its product. Therefore, in the present case, even if the trial court had found that the specific risk of a quadriplegic injury was obvious, this fact would not necessarily have excused defendant Doughboy’s duty to warn the plaintiff. For this reason, summary judgment was improper.
B
I disagree with the overall assessment in the opinion for reversal that under GCR 1963, 117.2(3), there was no genuine issue of material fact. Summary judgment pursuant to this court rule is proper only if there is no issue as to any material fact and the party in whose favor judgment is granted is entitled to judgment as a matter of law. In the present case, I believe the plaintiffs have been unjustly disserved because the trial court apparently did not consider the instant facts in the light most favorable to the nonmoving plaintiff, Rizzo v Kretschmer, 389 Mich 363; 207 NW2d 316 (1973), did not draw any inferences in favor of the plaintiff, Dagen v Hastings Mutual Ins Co, 166 Mich App 225, 229; 420 NW2d 111 (1987), and did not give the benefit of every doubt to the opposing plaintiff, Maccabees Mutual Life Ins Co v Dep’t of Treasury, 122 Mich App 660; 332 NW2d 561 (1983), lv den 417 Mich 1100.15 (1983).
In the present case, the plaintiffs filed suit against the defendant manufacturer, principally claiming that the swimming pool in which David Glittenberg was injured was defective for failing to warn of dangerous conditions existing in the pool. Applying the previously enunciated test whether the risk of danger was unreasonable in light of the foreseeable injuries, see Owens, supra at 425, I would hold that the defendant’s failure to sufficiently warn the plaintiff, in light of the tremendous risk of permanent quadriplegia, was unreasonable. The magnitude of the risk of irrevocable quadriplegia, in my view, substantially outweighs the utility of the defendant’s conduct. See Moning, supra at 449-450. However, at the very least, this proposition should have been presented to and decided by a jury in order that the question regarding exactly what was reasonable under these particular circumstances be fully and fairly resolved. Bonin v Gralewicz, 378 Mich 521, 527, n *; 146 NW2d 647 (1966), citing Prosser, Torts (3d ed), § 52, pp 329-330.
Furthermore, in examining the open and obvious exception even as one factor to be considered with respect to a defendant’s duty to warn, fault can still be found with the trial court’s determination that the present risk was obvious as a matter of law. In my view, the trial court glossed over a particularly important query: Exactly what was obvious in this case? Injury in general? Danger in general? What is it that must be obvious before a court can properly decide that a risk associated with the use of a product is obvious as a matter of law? Here, the plaintiffs argue that the specific risk of quadriplegia was not obvious. The defendant, on the other hand, maintains that it was enough that plaintiff David Glittenberg had some general appreciation of the risk involved with shallow diving. I disagree.
The question whether the plaintiff’s awareness of the general risks (urged by the defendant to have been obvious to the plaintiff) excused the defendant’s duty to warn should have been allowed to proceed to trial. As this Court reasoned in Michigan Mutual Ins Co v Heatilator Fireplace, 422 Mich 148, 154; 366 NW2d 202 (1985), "Even if it is arguable that [the plaintiff’s] testimony establishes consciousness on his part of a vague danger, it would not preclude a jury from finding that a warning was nonetheless required to give him a full appreciation of the seriousness of the life-threatening risks involved.” See also Hardy v Proctor & Gamble Mfg Co, 209 F2d 124 (CA 5, 1954); Hopkins, supra.
The plaintiff’s deposition testimony reveals the following:
Q. What type of injury would you—prior to this did you know that [diving into shallow water] was dangerous?
* * *
A. If you were to make a dive straight into shallow water?
Q. Yeah.
A. Yeah, I would say it’s dangerous. Just exactly what type of injury would result from it, I couldn’t have said at the time.
Q. Prior to that time did you know you could receive a serious injury if you dove straight in?
A. As far as an injury like this, I would say no.
Q. What sort of injury did you think you could—
A. If you got your arms out in front of you like you do all the time, broken arm possibly, concussion possibly.
Q. What do you have to know about how to dive?
A. Well, depending upon the depth of the water is a lot of it.
Q. Have you ever had swimming instructions?
A. Oh, yes.
Q. Did you ever have, as part of those instructions, any instruction in diving?
A. Yeah.
Q. What did you learn from that about the depth of water in diving?
A. If you’re going to dive in shallow water, you do a long dive so you don’t go deep.
Q. When you were in your swimming class and diving was discussed, was any mention made of injuries that you could receive from diving?
A. Not that I can recall, not specific injuries.
Q. What type of dive were you attempting to make on the day that this injury occurred?
A. Well, I would call it a long dive or a racing dive.
Q. Can you describe what that dive is?
A. You dive off low edge ■ of the pool, diving straight out more than down so you don’t go so deep.
Q. Did you consider yourself a pretty good swimmer prior to this?
A. Yes, I did.
Q. And you knew about diving and when you’re diving into shallow water, you have to take precaution to dive so you’re going across as opposed to down; is that correct?
A. Correct.
A. ... I would say if you knew—were versed in diving and knew what type of dive you were doing, it would be safe.
Q. . . . And you considered yourself versed in diving?
A. Yeah. [Emphasis added.]
Plaintiff’s testimony acknowledges a degree of risk recognition, i.e., a broken arm or a concussion, but it did not include the contemplation of losing the permanent use of his limbs. Therefore, the question whether this specific danger was open and obvious is ripe for factual development. Corbin v Coleco Industries, Inc, 748 F2d 411, 418 (CA 7, 1984). In particular, the question whether the plaintiff’s cognizance of the risk of possible concussion necessarily included the prospect of permanent disability should have precluded the court’s grant of summary disposition on the question of obviousness. "The obviousness of a danger which makes a warning unnecessary has been held to present a question of fact, unless there is an absence of evidence supporting the view that the danger is obvious.” 2 Hursh & Bailey, American Law of Products Liability (2d ed), § 8:15, pp 184-185.
In this case there was evidence that the risk of quadriplegia was not open and obvious. At his deposition, the plaintiff testified about having some awareness of "possible” danger associated with diving into shallow water, but his testimony did not reveal either that the risk of life-altering injury was known or open and obvious to him. Thus, this should have precluded summary judgment on the failure to warn issue. The determination of a plaintiff’s level of risk recognition is critical to any decision to dispose of a case on the basis of the question whether a defendant has a duty to warn. The plaintiff testified regarding a lack of specific recognition that his physical liberty lay in the balance, a fact which could have been made obvious by the presence of an explicit visible warning.
The plaintiff testified regarding having been instructed that it was possible to eliminate or reduce the risk of injury from diving into shallow water by executing a "long dive or a racing dive.” The plaintiff’s expressed belief is another crucial factor illustrating the impropriety of summary judgment based on the open and obvious standard. As the court in Corbin, supra at 417, stated, "If people do in fact generally hold such a belief [that certain diving techniques will prevent injury], then it cannot be said, as a matter of law, that the risk of spinal injury from diving into shallow water is open and obvious.”
Hence, in light of the plaintiff’s testimony that he had been instructed that dives can be safely made into shallow water, coupled with the fact that other similarly situated plaintiffs have or do hold like beliefs, the presumption that the possibility of crippling injury in this context is open and obvious to all as a matter of law is rebutted.
n
An explicit visible warning could have, more likely than not, altered the plaintiff’s behavior in this instance. Prosser states, "There are two separate goals to be achieved by adequate warnings. These are risk reduction and the protection of individual autonomy in decision-making.” Prosser & Keeton, Torts (5th ed), § 96, p 685. The purpose of providing explicit visible warnings is to reduce, not eliminate totally a given risk. I do not premise my belief that a warning could have prevented the instant injury on the notion that pool manufacturers or product manufacturers in general should be responsible for warning of all possible injuries. My concerns address only those specific risks and dangers that are manifestly serious while at the same time not obvious. See Prosser, Torts (4th ed), supra, pp 649-650. If the presence of an explicit visible warning, which coincidentally is now a standard part of the defendant’s marketed pool package, can reduce the number of severe pool injuries by one, then the purpose of including the warnings has been served.
It should be stressed that the warnings urged necessary by the plaintiffs should, to be effective risk reducers, be explicit, visible, and permanently affixed to the pool itself. The defendant in the present case had included warnings in the pool brochure, as well as small warning labels affixable at the pool owner’s discretion. However, because the warnings were not permanently affixed to the pool by the defendant manufacturer or the pool owners, they were not assessable by the plaintiff or, for that matter, by any of the invited swimmers present on that day or any other day. Furthermore, the defendant’s effort to provide some kind of warning as of the time of this injury, undermines, as a matter of . practical policy, the consistency of its argument that the danger was open and obvious.
CONCLUSION
In affirming the decision of the Court of Appeals, I would hold that the trial court’s grant of the defendant manufacturer’s motion for summary judgment was improper upon the basis of the erroneous belief that the obviousness of a risk totally excuses a manufacturer’s duty to warn. See Owens, supra. Unlike the opinion for reversal, I believe there were several genuine issues of material fact that should have gone to the trier of fact. Specifically, a factfinder should have been allowed to consider and resolve the following questions: (1) whether the defendant’s conduct in failing to adequately warn about the risk of crippling injury, was reasonable under the circumstances, see part a; (2) whether the magnitude of quadriplegic injury outweighed the utility of defendant’s failure to adequately warn, Moning, supra; (3) whether the plaintiff’s awareness of the general risk of injury was enough to excuse the defendant’s duty to warn, Heatilator, supra; and (4) whether the risk was necessarily obvious in light of the apparent risk, see Coleco, supra.
The above questions provide genuine issues of material fact appropriate for a factfinder. Accordingly, I would affirm the decision of the Court of Appeals.
Connie Glittenberg is also a named plaintiff in this case. However, since her loss of consortium claim is derivative in nature, for convenience sake, we use the term "plaintiff,” to refer to David Glittenberg.
The Wilcenskis purchased their home, including the pool, from Fred Bancroft in December 1977. Bancroft had purchased the pool in 1973 from Hilson Pool Company, which had installed it in his backyard. In addition to the pool manufacturer, plaintiff’s lawsuit named as defendants the Wilcenskis, Bancroft, and Hilson. Bancroft was dismissed pursuant to his motion for summary judgment in 1981. Plaintiffs appealed, and the Court of Appeals affirmed in Glittenberg v Bancroft, unpublished opinion per curiam of the Court of Appeals, decided July 27, 1982 (Docket No. 58254). Hilson was never served and is not an active defendant in the case. The Wilcenskis moved for summary judgment on two grounds: (1) that they had no duty to warn of the obvious danger, and (2) that the recreational land use statute, MCL 300.201; MSA 13.1485, precluded liability. The trial court denied summary judgment on the duty to warn theory; however, it granted summary judgment on the basis of the recreational land use statute. Plaintiffs appealed and the Wilcenskis cross-appealed. The Court of Appeals affirmed the ruling with respect to the duty to warn issue but reversed summary judgment in favor of the Wilcenskis on the basis of the land use statute. The Wilcenskis have not pursued a further appeal in this Court. As a result of this procedural history, the pool manufacturer, Doughboy Recreational Industries, Inc., is the only remaining defendant in this appeal.
Our grant of leave to appeal is limited to the issues: (1) whether the defendant manufacturer had a duty to warn the plaintiff that serious or permanent injuries could result from a dive into the shallow end of the defendant’s above-ground pool and (2) whether it was error for the trial court to grant summary judgment to the defendant either (a) because the plaintiff failed to state a claim upon which relief could be granted, GCR 1963, 117.2(1), or (b) because there was an absence of a genuine issue of material fact in dispute and defendant was entitled to judgment as a matter of law pursuant to GCR 1963, 117.2(3).
GCR 1963,117.2 provides:
Grounds. The motion for summary judgment shall state that the moving party is entitled to judgment in his favor because of any 1 of the following grounds:
(3) that except as to the amount of damages there is no genuine issue as to any material fact, and the moving party is therefore entitled to judgment as a matter of law.
GCR 1963,117.3 provides:
A motion based upon sub-rule 117.2(3) shall be supported by affidavits, and the opposing party prior to the day of hearing may serve opposing affidavits. . . . Such affidavits, together with the pleadings, depositions, admissions, and documentary evidence then filed in the action or submitted by the parties shall be considered by the court at the hearing.
Restatement Torts, 2d, § 402A, comment (j), P 353, reads in pertinent part:
[A] seller is not required to warn with respect to products . . . when the danger, or potentiality of danger, is generally known and recognized.
The "open and obvious danger” rule laid down in Fisher, supra, was not a dramatic departure from prior case law. See Nabkey v Jack Loeks Enterprises, 376 Mich 397; 137 NW2d 132 (1965) (the plaintiff was injured while jumping on a trampoline and was not entitled to recover from the owner/operator of the trampoline park; there was nothing the instructor could have done which was not readily apparent to the plaintiff or which was not under the plaintiff’s control). ■
The Corbin court also placed considerable emphasis on evidence suggesting that the plaintiff was an inexperienced swimmer, thereby distinguishing him from the plaintiffs in other cases finding the risk of diving to be open and obvious. 748 F2d 419.
The trial court’s resolution by summary disposition did not turn on the question of proximate cause, nor did the Court of Appeals consider that question. By writing for remand for a determination of the existence of a duty, I do not mean to intimate that defendant is precluded from again moving for summary disposition on the ground that, if a duty existed, any breach by defendant was not the proximate cause of plaintiff’s injuries.
The appendices to the brief amicus curiae for the Foundation for Spinal Cord Injury Prevention and the Aquatic Injury Safety Foundation address these and other factual questions bearing on the reasonableness of defendant’s conduct. However, these materials are not part of the record and apparently were not presented in the trial court.
See Henderson & Twerski, Doctrinal collapse in products liability: The empty shell of failure to warn, 65 NYU L R 265, 323 (1990).
I agree with the assessment in the opinion for reversal that reliance on matters outside the pleadings converted the motion for failure to state a claim, GCR 1963, 117.2(1), now MCR 2.116(C)(8), into a claim that there were no genuine issues of material fact, GCR 1963, 117.2(3), now MCR 2.116(0(10). See discussion below.
Robert and Dianne Wilcenski, the pool owners, did not appeal the Court of Appeals reversal of summary judgment regarding the plaintiffs’ suit against them. Thus, I do not pass on the issues presented in their case. | [
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Per Curiam.
The sole issue raised on this appeal is the propriety of an order of summary judgment entered May 7, 1980, allowing defendant insurance company to partially offset social security retirement benefits received by plaintiff against work-loss benefits paid under a no-fault insurance policy by defendant to plaintiff. The issue raised is of first impression and involves interpretation of § 3109(1) of the no-fault insurance act, MCL 500.3109(1); MSA 24.13109(1).
On June 27, 1977, plaintiff, then age 64, was a passenger in an automobile which was involved in an accident. As a result of the accident, plaintiff suffered severe bodily injuries which precluded return to his job at Borman Foods, where plaintiff was paid $285 per week salary. Due to plaintiff’s inability to continue work, defendant insurance company began paying plaintiff work-loss benefits computed by taking 85 percent of his $285 per week salary. MCL 500.3107; MSA 24.13107. Plaintiff became 65 years of age and on November 1, 1977, was mandatorily retired from Borman Foods. At this juncture, defendant stopped paying plaintiff work-loss benefits. Shortly thereafter, defendant received a letter stating that had it not been for the automobile accident, plaintiff would have begun working at the Supreme Steel Company following his retirement from Borman Foods. Plaintiff would have made $200 per week at Supreme Steel. Defendant than began paying plaintiff work-loss benefits computed by taking 85 percent of a $200 per week salary. MCL 500.3107; MSA 24.13107. Upon learning that plaintiff was also receiving social security retirement benefits which were not computed based upon a $200 per week salary (but rather were computed on the basis that plaintiff was retired and not receiving a weekly salary), defendant tendered to plaintiff work-loss benefits which offset the amount of the difference of the retirement benefits plaintiff was receiving and the amount of retirement benefits plaintiff would be receiving had he actually been earning $200 per week at Supreme Steel. Plaintiff refused this tender, claiming defendant was not entitled to offset any portion of his retirement benefits against plaintiff’s work-loss benefits. Plaintiff now appeals the trial court’s finding in favor of the defendant.
Both plaintiff and defendant rely upon O’Donnell v State Farm Ins, 404 Mich 524; 273 NW2d 829 (1979), to support their respective positions relative to the intent of MCL 500.3190(1); MSA 24.13109(1). O’Donnell states:
"Section 3109(1) of the No-Fault Act requires the subtraction of government, benefits from no-fault benefits otherwise due:
" 'Benefits provided or required to be provided under the laws of any state or the federal government shall be subtracted from the personal protection insurance benefits otherwise payable for the injury.’
"The history of § 3109(1) indicates that the Legislature’s intent was to require a set-off of those government benefits that duplicated the no-fault benefits payable because of the accident and thereby reduce or contain the cost of basic insurance.” O’Donnell, supra, 539, 544.
Plaintiff claims that social security retirement benefits are not benefits payable "because of the accident” and, as such, cannot be offset against the insurance company’s liability for no-fault work-loss benefits which arise directly from the automobile accident. Defendant claims that full payment of retirement benefits, as if plaintiff were not working, and full payment of work-loss benefits, as if plaintiff were working, results in duplication of benefits which requires a set-off to the extent of the duplication.
This issue is one of first impression in Michigan. We find defendant’s rationale persuasive. Although the O’Donnell opinion was confined to the facts before the Court (involving social security survivor’s benefits) and did not purport to encompass other possible government benefits, O’Donnell, supra, 538, the above quoted language concerning the history of § 3109(1) is instructive. This language makes clear that the objective of the § 3109(1) statutory scheme was to provide a more complete and effective coordination of benefits between Michigan automobile insurance and the benefits provided by the laws of all the states and the federal government and that § 3109(1) was framed in terms of maintaining or reducing premium costs for all insureds through the elimination of duplicative benefits recovery. O’Donnell, supra, 545. We view the present situation in light of the valid legislative objectives.
Plaintiff’s contention that there can be no set-off of social security retirement benefits because these retirement benefits are not payable "because of the accident” does not comport with the objective of § 3109(1). Section 3109(1) does not seek only to set off government benefits that are payable "because of the accident” and are duplicative of no-fault benefits but also seeks to set off all of those government benefits that duplicate no-fault benefits which are payable "because of the accident”. As defendant argues, § 3109(1) requires a set-off for all government benefits which duplicate no-fault benefits to the extent of the duplication. Only such an implementation of § 3109(1) will achieve the complete and effective coordination of benefits sought by the Legislature in its attempt to reduce or contain the cost of no-fault insurance by eliminating benefit duplication.
Applying the above rationale to the facts of the present case, it is clear that under plaintiffs construction of the statute a duplication of benefits would result. Had there been no accident, plaintiff would have earned $200 per week before taxes. Using the statutory presumption of 15 percent tax, MCL 500.3107; MSA 24.13107, plaintiff would have received $170 per week after taxes plus $52.34 per week in social security retirement benefits in the year 1979. 20 CFR 404.430 (1981). This results in an after-tax total of $222.34 per week had there not been an accident. However, because of the accident plaintiff could not work and received $113.80 per week in retirement benefits. To this amount plaintiff wishes to have added the full work-loss benefit of $170 per week (computed as 85 percent of the $200 per week plaintiff would have earned). This would result in a total amount of $283.80 per week or a total of $61.46 per week more than plaintiff would have received had there been no accident. Certainly, duplication exists in this computation by plaintiff. Further, plaintiffs construction of the statute is internally inconsistent. In order to justify his continued receipt of work-loss benefits following his retirement, plaintiff assumes that, but for the accident, he would be able to work at the Supreme Steel Company. But in order to qualify for social security retirement benefits at the full rate of $113.80 per week, plaintiff assumes that he would not be working for Supreme Steel Company, for, under federal law, working at Supreme Steel would reduce plaintiff’s social security retirement benefits by $61.46 per week. In our opinion, plaintiff cannot have it both ways.
Defendant contends, and the trial court properly found, § 3109(1) requires the set-off to the extent of the duplication, e.g., $61.46 per week in 1979. Maintaining plaintiff in the position he would have been in had there been no accident does not prejudice the plaintiff and, at the same time, fulfills the valid legislative objectives of § 3109(1). Therefore, we find no error in the trial court’s grant of summary judgment in favor of defendant.
Affirmed. Costs to defendant.
In the year 1979, social security retirement benefits were reduced $1.00 for every $2.00 earned over $4,500. In 1979, plaintiff’s earnings on the Superior Steel Company job would have been $10,400 (52 X $200). Subtracting $4,500 leaves an overage of $5,900. Likewise, plaintiff’s retirement benefits would have been reduced by one-half of $5,900 which equals $2,950 for the year or $61.46 per week. Social security would have subtracted $61.46 per week from $113.80 per week, the amount plaintiff would have received had he retired or not made over $4,500. Thus, plaintiff would have received $52.34 per week in social security retirement benefits had there not been an accident. | [
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On Second Remand
Before: M. F. Cavanagh, P.J., and M. J. Kelly and D. S. DeWitt, JJ.
M. J. Kelly, J.
On April 19, 1978, defendant was convicted of second-degree murder, MCL 750.317; MSA 28.549, three counts of assault with intent to commit murder, MCL 750.83; MSA 28.278, and four counts of possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Defendant was sentenced under the indeterminate sentencing act, MCL 769.8 et seq.; MSA 28.1080 et seq., to life imprisonment on the second-degree murder count and to a prison term of from 10 to 30 years for each count of assault with intent to murder. He also received a mandatory two-year prison term for each of the four felony-firearm counts. Defendant’s subsequent appeal of right to this Court resulted in an unpublished memorandum opinion affirming each of the convictions. People v Rone, Docket No. 78-2461, released December 12, 1979. The decision was remanded to this Court on order of the Supreme Court, for "amplification of the reasons for its decision”. 409 Mich 903 (1980). We were also directed to consider "whether the trial court’s unrequested instructions concerning the procedures to be followed after a verdict of not guilty by reason of insanity constituted error” under People v Cole, 382 Mich 695; 172 NW2d 354 (1969). Pursuant to the Supreme Court’s order, the Court issued a second opinion amplifying the reasons for our decision and considering the trial court’s unrequested instruction. 101 Mich App 811; 300 NW2d 705 (1980). However, the second decision is now remanded to this Court on order of the Supreme Court because only two judges of the original panel considered the case during the first remand. 411 Mich 984; 308 NW2d 97 (1981).
On September 2, 1977, defendant, while armed with a .22-caliber semi-automatic rifle, entered the Band Drug Store in the City of Detroit. He was looking for the manager when, suddenly and without apparent provocation, he shot the pharmacist, Allen Margolis. Defendant then exited from the store, whereupon he encountered Mary and Robert Rish. He then asked Miss Rish if Robert was her "old man” and proceeded to shoot Robert in the side of the head.
Shortly after the above shootings, Detroit police officer James Lawless observed the defendant in the neighborhood carrying a rifle. When Lawless identified himself as a police officer, the defendant began shooting at him as well. Defendant then retreated into a nearby house where he was arrested. A subsequent search of the defendant’s home disclosed the body of Mary Stevens, with whom the defendant had been living. Miss Stevens was later found to have been shot three times with a .22-caliber rifle.
During trial, the defense presented the testimony of Dr. Norman G. Pothyress, a clinical psychologist, in support of its proposed defense of insanity. Dr. Pothyress opined that the defendant was mentally ill at the time of the shootings. He also suggested that defendant had likely consumed a considerable amount of alcohol both on the day of and the day before the shootings.
Defendant first contests as a violation of due process this Court’s denial of his motion for additional time to file an appellate brief. Defendant specifically alleges that this denial violated his due process right to effective oral arguments on appeal. On October 5, 1978, the defendant was provided with substitute appellate counsel, after the 60-day period for filing briefs provided in GCR 1963, 815.1(1) had expired. On October 19, 1978, defense counsel petitioned this Court for an additional 60 days to file his brief. We granted a 20-day extension in an order dated November 6, 1978.
This Court’s authority to permit the filing of an appellant’s brief more than 90 days after a claim of appeal or transcript is filed is governed by GCR 1963, 815.1(1). Under this rule, additional time may be ordered "for cause shown”. We hold that no error was committed. Defendant’s appellate brief was not in fact filed until February 26, 1979, three months after expiration of the original 20-day extension. Further, arguments were not scheduled on defendant’s case until October, 1979; counsel made no motion for oral argument although the case call specifically noted the time requirements for filing motions and that "all attorneys not endorsed must move for oral argument”. This allegation of error is not only meritless but specious.
Defendant next alleges as reversible error the trial court’s decision, sua sponte, to instruct the jury on the post-trial effect of a verdict of not guilty by reason of insanity. The trial judge instructed as follows:
"If you make such decision, the defendant will be immediately committed to the custody of the center for forensic psychiatry for a period not to exceed sixty days. During that time the statute directs that the center thoroughly examine and evaluate the present mental condition of the defendant in order to reach an opinion as to whether he is mentally ill and requires medical treatment.
"Within the sixty day period, the center will file a report with the court, prosecuting attorney and defense counsel. If the report states that the person is not mentally ill or does not require treatment, the defendant shall be discharged from custody. If the report finds that the person is mentally ill and does require treatment, the court may direct the prosecuting attorney to file a petition with the probate court for an order of hospitalization or an order of admission to a clinical facility.
"If the court so directs the center may retain the person pending such a hearing. If after a hearing before a probate court, the defendant is found not to be mentally ill or not to be a person requiring treatment, the defendant shall be discharged. However, if the person is ordered hospitalized, admitted to a facility or otherwise (to) receive treatment he shall not be discharged or placed on leave without prior consultation with the center for forensic psychiatry.
"If hospitalized, the defendant will be hospitalized until his mental condition is such that he is no longer judged to require treatment.”
In Cole, supra, the Supreme Court considered as a matter of first impression the question whether a jury should be apprised of the consequences of returning a verdict of not guilty by reason of insanity. The Court concluded in favor of the instruction, when requested by the defendant or jury. In so holding, the Cole Court adopted the rationale supporting the instruction expressed in Lyles v United States, 103 US App DC 22, 25; 254 F2d 725 (1957):
" 'This point arises under the doctrine, well established and sound, that the jury has no concern with the consequences of a verdict, either in the sentence, if any, or the nature or extent of it, or in probation. But we think that doctrine does not apply in the problem before us. The issue of insanity having been fairly raised, the jury may return one of three verdicts, guilty, not guilty, or not guilty by reason of insanity. Jurors, in common with people in general, are aware of the meanings of verdicts of guilty and not guilty. It is common knowledge that a verdict of not guilty means that the prisoner goes free and that a verdict of guilty means that he is subject to such punishment as the court may impose. But a verdict of not guilty by reason of insanity has no such commonly understood meaning. As a matter of fact its meaning was not made clear in this jurisdiction until Congress enacted the statute of August 9, 1955 [69 Stat 710, DC Code § 24-301 (1951) (Supp 5)]. It means neither freedom nor punishment. It means the accused will be confined in a hospital for the mentally ill until the superintendent of such hospital certifies, and the court is satisfied, that such person has recovered his sanity and will not in the reasonable future be dangerous to himself or others. We think the jury has a right to know the meaning of this possible verdict as accurately as it knows by common knowledge the meaning of the other two possible verdicts.’ ” Cole, supra, 719-720.
Accord, People v Hampton, 384 Mich 669, 674-676; 187 NW2d 404 (1971), People v Gray, 57 Mich App 289, 297; 225 NW2d 733 (1975). See also People v Ashford, 91 Mich App 693; 283 NW2d 830 (1979), in which the Court found no manifest injustice arising from the trial court’s unobjected-to decision to instruct the jury, sua sponte, in this manner.
Two subsequent cases in this Court have considered the specific allegation of error raised by defendant. In People v Samuelson, 75 Mich App 228; 254 NW2d 849 (1977), the Court interpreted the Cole reference to a request by the jury or defense counsel as impliedly prohibiting a sua sponte disposition instruction. The Samuelson Court did not, however, find the lower court’s unrequested instruction to be reversible error. It concluded that the Cole "automatic commitment charge” mistakenly given by the trial court under MCL 767.27b; MSA 28.966(12), since repealed, 1974 PA 258, was more helpful to defendant’s insanity defense than a disposition instruction under the then recently enacted Mental Health Code, MCL 330.2050; MSA 14.800(1050).
The more recent decision in People v Tenbrink, 93 Mich App 326; 287 NW2d 223 (1979), lv den 408 Mich 945 (1980), offers a differing analysis. The Tenbrink Court quoted the following additional language from Lyles, supra, 25-26:
" 'Sometimes a defendant may not want such an instruction given. If that appears affirmatively on the record we would not regard failure to give it as grounds for reversal. Otherwise, whenever hereafter the defense of insanity is fairly raised, the trial judge shall instruct the jury as to the legal meaning of a verdict of not guilty by reason of insanity in accordance with the view expressed in this opinion.’ ” Tenbrink, supra, 330.
The Tenbrink Court then reasoned that in Cole the Supreme Court adopted the entire rationale offered in Lyles, including the requirement of a disposition instruction for insanity defenses. The Court also rejected the argument that the new Mental Health Code’s disposition procedures would alter its finding:
"Nor do we feel that the change in the law relative to the possible disposition of one found 'not guilty by reason of insanity’ requires a different result. While the Lyles rule related to an automatic commitment statute similar to Michigan’s when Cole was decided, the District of Columbia code was amended in 1970 to require a sanity hearing within 50 days. This is similar to the new Michigan mental health code in effect at the time of trial in the case at bar. In United States v Brawner, 153 US App DC 1, 28-30; 474 F2d 969 (1972), the Court reconsidered the Lyles change and held that the instruction should be revised to conform with the statute as amended. The instructions in the instant case conformed with Michigan’s new law. On the basis of Lyles, Brawner and Cole we find no reversible error in the sua sponte instructions of the trial court relative to possible dispositions of the defendant if he were found 'not guilty by reason of insanity’ or 'guilty but mentally ill’.” Tenbrink, supra, 330-331.
We agree with the result reached in Tenbrink, but subscribe to a different approach.
Basic to the function of a trial court is its duty to instruct a jury on all elements of a charged crime, whether requested by the parties or not. MCL 768.29; MSA 28.1052, Ashford, supra. Imposition of this duty is intended to secure the defendant’s right to a jury trial, which includes the right to a properly instructed jury. People v Lewis, 91 Mich App 542; 283 NW2d 790 (1979). Central to this requirement is the necessity that instructions make understandable to a jury the legal concepts they are to apply. As explained in People v Lambert, 395 Mich 296, 304; 235 NW2d 338 (1975):
"[J]uries cannot be allowed to speculate. It is the function of the court to inform the jury of the law by which its verdict must be controlled. The purpose of instructions is to enable the jury to understand and apply the law to the facts of the case. The accused has a right to have a jury pass upon the evidence under proper instructions.” (Footnote omitted.)
As noted in Cole and Lyles, the basis for instructing a jury on the consequences of a not guilty by reason of insanity verdict is the judicial recognition that jurors do not generally understand the results of such a decision. Thus, to find error in the lower court’s instruction would run contrary to the rationale approved in Cole. To insure a jury’s fair consideration of all possible verdicts brought into issue, a trial court should have independent authority to instruct on the disposition of a defendant found insane. We therefore conclude that a trial judge may instruct a jury, sua sponte, as to the post-trial effect of a not guilty by reason of insanity verdict.
Defendant next alleges a violation of his constitutional right to be free of double jeopardy, US Const, Am V; Const 1963, art 1, § 15, arising from his separate conviction for possessing a firearm during the commission of a felony. Under the authority of the decision of Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979), it is determined that defendant’s convictions did not violate the constitutional prohibition against double jeopardy.
The fourth issue raised by defendant concerns the trial court’s failure to instruct the jury, sua sponte, on the defense of intoxication. In People v Reed, 393 Mich 343, 349-350; 224 NW2d 867 (1975), the Supreme Court summarized the duties of a trial court to instruct its jury properly. If supported by the evidence, a trial judge must include instructions on any theories or defenses raised. See also People v Hoskins, 403 Mich 95, 100; 267 NW2d 417 (1978). In this case, the sole reference to intoxication was that made by the defendant’s expert psychiatric witness who, based upon conversations he had with the defendant and several witnesses, suggested that the defendant had been drinking heavily on the day of the incident. We note, however, the hearsay nature of this testimony, offered solely in support of defendant’s claim of insanity. Had the expert attempted to establish by direct testimony a defense claim of intoxication, such evidence would have been inadmissible as hearsay. Absent additional evidence supporting a finding that defendant was intoxicated, the trial judge was not required to instruct the jury, sua sponte, as to the possible mitigating effect of intoxication.
We also note the defendant’s failure to request an intoxication instruction. Absent such a request, this Court will not reverse unless manifest injustice would thereby result. People v Crawford, 89 Mich App 30, 36; 279 NW2d 560 (1979). Our review of this issue discloses no such manifest injustice.
Defendant asserts error arising from the trial court’s instructions in preparing the jury for expert psychiatric testimony on the defense of insanity. People v Mikulin, 84 Mich App 705; 270 NW2d 500 (1978). However, our review of the trial court indicates instructions in substantial compliance with CJI 7:8:01 as required by Mikulin. Thus, no reversible error was suffered by the defendant.
Defendant next asserts that the prosecutor’s closing argument contained remarks prejudicial to the defendant’s case. Specifically, he complains of the following statements made during rebuttal:
"But, is that to say that they are immune from criminal prosecution, because the acts which they committed upon their fellow men and women were so reprehensible? The law was not intended to unbridle the passions of men and women, to allow them to go through the world and murder, kill and plunder and then assert that they did that as the result of a mental defect.”
"Now are we to let people go about consuming large volumes of alcohol and then go out on the streets and shoot, kill and maim and murder and come in and say, 'Ah, I had some mental problems.’?”
"I hope that that is a verdict that you are able to live with today, tomorrow, next week and as long as you are here on this good earth.”
Defense counsel raised no objection to these remarks. Such failure to object precludes appellate review unless it can be said that a timely requested curative instruction would not have eliminated the claimed prejudice, People v Champion, 97 Mich App 25; 293 NW2d 715 (1980), or that the comments denied defendant his right to a fair trial. People v Thangavelu, 96 Mich App 442; 292 NW2d 227 (1980). The prosecutor’s remarks were not so inflammatory that curative instructions would be unable to eradicate the claimed prejudice. E.g, People v Lewis, 37 Mich App 548; 195 NW2d 30 (1972). Nor did the remarks make reference to matters not in evidence. Thangavelu, supra. Finally, review of the prosecutor’s closing statement in its entirety shows no manifest prejudice accrued to the defendant. His argument did not suggest a "civic duty” to convict or disparagement of the defense of insanity. Had defense counsel entered objections to the prosecutor’s remarks, the trial court’s curative instructions could have erased any prejudice to defendant.
Defendant next argues that the guilty but mentally ill statute, MCL 768.36; MSA 28.1059, under which the jury was instructed denied to the defendant his constitutional rights to due process and equal protection of the law. His due process argument rests upon the allegation that the psychiatric treatment statutorily mandated will not, in fact, be provided. Defendant’s equal protection argu ment alleges that the law creates an irrational classification between defendants found guilty but mentally ill and those found not guilty by reason of insanity. Each of these arguments was addressed, and dismissed, however, in People v McLeod, 407 Mich 632; 288 NW2d 909 (1980). We thus find no merit in defendant’s constitutional arguments.
Defendant lastly contends that he was denied the effective assistance of counsel when his attorney: (1) failed to request an instruction on intoxication as a theory of defense, (2) failed to object to the previously noted prosecutorial comments during closing argument, and (3) failed to seek dismissal of the second-degree murder charge or request an instruction on manslaughter.
In People v Garcia, 398 Mich 250; 247 NW2d 547 (1976), the Supreme Court adopted the standard for effective assistance articulated in Beasley v United States, 491 F2d 687, 696 (CA 6, 1974), requiring defense counsel to " 'perform at least as well as a lawyer with ordinary training and skill in the criminal law * * The Garcia Court also approved this Court’s decision in People v Degraffenreid, 19 Mich App 702; 173 NW2d 317 (1969), finding that a "serious mistake” but for which defendant would have had a reasonably likely chance of acquittal could constitute grounds for a valid claim of ineffective assistance. We shall discuss the individual bases claimed by defendant to constitute ineffective assistance seriatim.
The defense of intoxication is of limited utility, except where the charged offense(s) require(s) a specific intent for its (their) commission. In People v Crittle, 390 Mich 367, 371; 212 NW2d 196 (1973), the Supreme Court quoted its previous opinion in People v Walker, 38 Mich 156, 158 (1878), for the effect of an intoxication defense:
" 'While it is true that drunkenness cannot excuse crime, it is equally true that when a certain intent is a necessary element in a crime, the crime cannot have been committed when the intent did not exist. In larceny the crime does not consist in the wrongful taking of the property, for that might be a mere trespass; but it consists in the wrongful taking with felonious intent; and if the defendant for any reason whatever, indulged no such intent, the crime cannot have been committed.’ ”
See also People v Stanton, 97 Mich App 453; 296 NW2d 70 (1980). Thus, had defense counsel raised as a defense the alleged intoxication of the defendant, such defense would necessarily have been limited to the assault with intent to commit murder charges.
Despite the availability of intoxication as a defense to the assault charges, we find the defendant’s argument unavailing. From the record there was little evidence of intoxication. Moreover, defense counsel was likely aware that such an instruction would not be a defense to the second-degree murder or felony-firearm charges. It appears that defense counsel merely chose to emphasize the insanity defense rather than distract the jury with another defense which might appear to be flimsy. This decision by counsel was part of his trial strategy. The fact that the strategy failed does not mean that counsel was ineffective.
We have already determined that no prejudice was imposed upon the defendant by the prosecutor’s remarks during closing arguments. Defen dant’s claim of ineffective assistance of counsel for failure to object to such remarks is thus without merit. As every trial lawyer knows, objections often underscore points made by the opposition.
The final rationale proposed in support of defendant’s claim of ineffective assistance is defense counsel’s failure to move for dismissal of the second-degree murder charge or for instructions on the lesser included offense of manslaughter. We disagree. The evidence presented at trial as to second-degree murder was more than adequate to withstand a motion for directed verdict of acquittal. People v Hampton, 407 Mich 354; 285 NW2d 284 (1979). Further, defense counsel’s failure to request instructions on manslaughter could be a matter of trial strategy. In effect, by not requesting such instructions defense counsel may have attempted to force the jury into an "all or nothing” decision. Defendant was not deprived of his constitutional right to the effective assistance of counsel.
Affirmed.
Unlike the present case, the Supreme Court in Cole did not have before it the issue of an unrequested instruction. Nor did the Court endeavor to address the issue.
The latter provision establishes a required period of forensic center commitment not to exceed 60 days, during which the defendant is to undergo tests and examinations to determine his continuing mental condition. MCL 330.2050(1); MSA 14.800(1050)(1). A report on the defendant’s mental health then is required to be prepared and submitted to the court, which may direct the prosecutor to prepare a petition seeking a more permanent commitment and course of treatment. MCL 330.2050(2), (3); MSA 14.800(1050)(2), (3).
We note with approval the following discussion in People v Thomas, 96 Mich App 210, 223; 292 NW2d 523 (1980), a case in which the trial court gave a disposition instruction over defense counsel’s objection:
"In this connection, there is much to be said for adopting a truth and accuracy test as a measure of the correctness of a trial judge’s instruction regarding the effect of a not guilty by reason of insanity verdict or a guilty but mentally ill verdict. It is just as wrong and erroneous to mislead a jury into believing there is no public safety factor in either of those verdicts because a defendant will not be released until it is certain that he will not commit further violent crime as it is to mislead a jury into believing a defendant will automatically be released from a mental hospital within a very short time after either of these verdicts. The argument for the truth and accuracy of the jury instruction test rests on the practical assumption that under our adversary system the prosecutor and the defense counsel will each indirectly and obliquely seek to persuade the jury of their respective, differing versions of what happens after a not guilty by reason of insanity verdict or a guilty but mentally ill verdict and that the best way to combat these efforts is by telling the jury what the law provides. Leaving the question of whether or not to give this jury instruction to the whim of the defendant imparts a kind of judicial gamesmanship to the trial. Confidence in the jury should override the fear that somehow knowledge of what happens to a defendant in the case of a not guilty by reason of insanity or a guilty but mentally ill verdict will result in an unjust verdict.”
See People v Taylor, 98 Mich App 685; 296 NW2d 631 (1980), rejecting the defendant’s argument that intoxication is a defense to second-degree murder, an offense not requiring specific intent to kill. See also Wayne County Prosecutor, supra, 396-398, in which the Supreme Court discussed the elements required to prove a violation of the felony-firearm statute but did not find specific intent necessary. But see People v Fields, 64 Mich App 166; 235 NW2d 95 (1975), holding assault with intent to commit murder to be a specific intent crime. | [
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Per Curiam.
Defendant appeals a Workers’ Compensation Appeal Board determination awarding plaintiff workers’ disability compensation benefits.
On July 29, 1972, plaintiff was injured while operating a crane for defendant, Ford Motor Company. Defendant paid disability benefits to plaintiff until 1974, at which time plaintiff returned to defendant’s employ performing favored work. Plaintiff remained employed intermittently with periods of disability until August 25, 1975, at which time he was fired. Defendant contended at the hearing that plaintiff repeatedly had broken company rules and had threatened a supervisor on the date of his termination. Plaintiff contended that he was unable to perform the work and was being harassed by supervision.
In its opinion affirming the referee’s award of benefits, the appeal board found the record to be compelling regarding the conclusion that plaintiff could not perform the favored work due to the residuals of his injury. It further found support in the record for plaintiff’s assertion that his supervisor was trying to find reasons to fire him. The board then concluded that plaintiff’s behavior was sufficient cause to fire him under the union contract but was not enough to bar him from receiving disability benefits. The board ruled that in order for plaintiffs behavior to bar benefits it must amount to an act of "moral turpitude”.
On appeal, defendant claims that the appeal board used the wrong standard in determining that plaintiff was entitled to benefits. Defendant asserts that the board’s finding of just cause for plaintiffs termination barred the award. On the other hand, plaintiff asserts that the board was correct in holding that the plaintiff did not commit an "act of moral turpitude” so that his discharge does not prevent recovery of benefits. Alternatively, plaintiff asserts that plaintiffs inability to perform the favored work renders irrelevant the question of why plaintiff was terminated.
A review of Michigan cases dealing with this issue reveals that the board incorrectly stated the applicable standard. The Supreme Court first considered a similar issue in Todd v Hudson Motor Car Co, 328 Mich 283; 43 NW2d 854 (1950). In that case, the Court held that a partially disabled employee who was discharged from favored work because of criminal gambling activities while at work was not entitled to compensation benefits since his favored employment "ceased through his own volition and turpitude and not by reason of his accidental injury”. Id., 289.
In Garrett v Chrysler Corp, 337 Mich 192; 59 NW2d 259 (1953), the Todd doctrine was extended beyond criminal activity to a situation where the employee, who was also back at favored work, was discharged for habitual drunkenness. In Garrett, the Court held:
"We consider that the instant case falls within the reasoning in the Todd Case. Plaintiff Garrett was being furnished with suitable employment at no wage loss. His voluntary drunkenness was the reason for his discharge, and not his physical condition resulting from his injuries. His several voluntary acts of drunkenness, indicating and caused by his moral turpitude, decreasing his efficiency as an employee, detrimental to the morale of his fellow employees and subversive of the employment, were the efficient cause of the termination of his employment.” Id., 194.
See, also, DeMars v Roadway Express, Inc, 99 Mich App 842, 844; 298 NW2d 645 (1980).
In Scott v Kalamazoo College, 77 Mich App 194; 258 NW2d 191 (1977), this Court reversed an appeal board’s ruling which interpreted Todd and Garrett as requiring that an employee’s discharge be based on an act of "moral turpitude” in order for an employer to refuse to pay benefits following the discharge. This Court held that "[n]either Todd * * * nor Garrett * * * is so restrictive”, and set forth the following standard:
"Whether a disabled employee on favored work, who quits or is discharged, is entitled to further benefits is a question of fact in each case. The questions being, did he quit or was he discharged for any reason connected with his disability, or was he unable to find employment at equal pay for any reason connected with his disability? Was the discharge for just cause?” Id., 196.
The Scott standard stands as the most recent and direct pronouncement of this Court concerning the issue in the case at bar.
We agree with the standard established in Scott. Furthermore, where there is a question as to whether plaintiff could perform the favored work, Scott established a two-step analysis. First, was plaintiff able to perform the favored work? If not, the plaintiff is entitled to receive disability benefits. If plaintiff was able to perform the work, the next question is whether plaintiff was fired for any reason connected with his disability or whether he was fired for just cause. If defendant can show that plaintiff was fired for violation of company rules which would normally result in termination of a nondisabled employee, and that the violation was not caused by plaintiff’s disability, then benefits may properly be denied.
By establishing the second prong of this test, both parties are protected. The employee is guarded against termination or harassment leading to voluntary termination as a pretext to denial of benefits. The employer is insulated against unacceptable behavior which normally would result in termination of other employees. A disabled employee who can perform the favored work, yet violates company rules to the extent that discharge is justified, in actuality is refusing to perform the favored work and thus creating a bar to compensation. See Lynch v Briggs Manufacturing Co, 329 Mich 168; 45 NW2d 20 (1950).
In this case, the reason that the appeal board awarded plaintiff benefits is not entirely clear. On remand, the board is directed to follow the standard set forth above. If plaintiff was unable, due to the residuals of his injury, to perform the favored work, the inquiry is ended and plaintiff is entitled to benefits. Similarly, if plaintiff was fired for any reason connected with his disability, he is also entitled to benefits. However, if the board determines that plaintiff could perform the favored work and was not fired for any reason connected with his disability and that plaintiff broke company rules which normally would result in termination of an employee, then plaintiff shall be denied benefits. The board may, in its discretion, take additional evidence or rely upon the present record.
Remanded for further proceedings consistent with this opinion. We do not. retain jurisdiction.
In Tury v General Motors Corp, 80 Mich App 379; 264 NW2d 2 (1978), another panel of this Court mentioned the issue and referred to the Scott case, but specifically declined to express an opinion on the Scott holding. | [
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Per Curiam.
Alan F. Kment appeals by leave granted the decision of the Workers’ Compensation Appeal Board (WCAB) holding that he was not entitled to receive $1,500 in penalties from the City of Detroit for its late payment of medical bills under § 801(2) of the Worker’s Disability Compensation Act (the act), MCL 418.801(2); MSA 17.237(801X2).
Kment, a police officer for the defendant, City of Detroit, received a head injury during a narcotics raid staged on October 6, 1977. The parties do not dispute that the injury was duty-related. Kment’s injury resulted in his being disabled from October 8, 1977, through mid-December, 1977. During this time, Kment continued to draw his normal salary. He returned to work in mid-December, 1977, but was assigned light duty in the Detroit Police Fiscal Section because he continued to suffer from the effects of his injury. After obtaining prior authorization from his employer, Kment was treated for his injuries on an outpatient basis at the University of Michigan Hospital in Ann Arbor on January 17 and January 24, 1978. The cost of these visits, totaling $260, was billed directly to the Detroit Police Medical Section on January 29 and February 12, 1978. On February 14, 1978, the hospital bills were approved for payment by the Detroit Police Department physician and were routed to the fiscal section, where Kment worked. Kment, in the course of his duties, authorized payment of the bills and they were finally paid on May 4 and May 19, 1978. Payment was made directly to the hospital. Kment also claimed reimbursement for travel expenses incurred on his visits to the hospital and, on June 9, 1978, a check in the amount of $14.28 was personally received by Kment.
While working in the Fiscal Section, Kment became aware of a then new statute, MCL 418.801(2); MSA 17.237(801X2), which provides for a $50 per day penalty for late payment of workers’ compensation benefits. On May 16, 1978, Kment filed a petition for hearing with the Bureau of Workers’ Disability Compensation (Bureau) claiming to be entitled to the penalties described in § 801(2) of the act. The city responded to the petition and a rule V hearing was conducted be fore an administrative law judge on June 28, 1978. In a decision signed July 11, 1978, and mailed July 17, 1978, the administrative law judge awarded Kment the $1,500 statutory maximum.
The city then appealed to the WCAB raising several potentially meritorious issues concerning the application of § 801(2). In an opinion and order dated January 25, 1979, the WCAB reversed the decision of the administrative law judge, holding that pursuant to § 418.161 of the act, MCL 418.161; MSA 17.237(161), Kment was not entitled to receive benefits under the act since he had elected to accept "like benefits” under the city charter. The matter was remanded to the Bureau in order to allow him to make an election between the benefits provided by the city charter and those provided by the act.
Kment then sought leave to appeal to this Court and leave was granted on May 3, 1979. A decision was orginally rendered on September 3, 1980, reversing the decision of the WCAB on the basis that the benefits provided by the city charter were not, as a matter of law, "like benefits”. The city subsequently brought an application for rehearing, which was granted.
The issue on appeal remains whether the applicable disability benefit provisions of the Detroit City Charter provide "like benefits” so that plaintiff is barred from recovering benefits under both the act and the charter. At the heart of this issue is MCL 418.161; MSA 17.237(161), which provides in part as follows:
"Policemen, firemen, or employees of the police or fire departments, or their dependents, in municipalities or villages of this state having charter provisions prescribing like benefits, may waive the provisions of this act and accept in lieu thereof like benefits as are prescribed in the charter but shall not be entitled to like benefits from both.”
Concerning police disability benefits, the present charter of the City of Detroit provides:
"The police commissioner’s power under title 4, chapter 21, section 18 of the 1918 Charter shall in all respects continue in existence exactly as before until changed by ordinance.” Detroit Charter, 1974, § 13-108.
The referenced section of the prior charter provided:
"Whenever any member of the police department shall become sick or shall be disabled in the performance of his duties, his salary and medical, surgical and hospital expenses during the time of such disabilities may become a charge upon the police fund and he may be paid such salary and expenses at the discretion of the commissioner, who shall inquire into the circumstances, and if satisfied that the charge upon said fund is correct and reasonable, may certify the same to be paid from the police fund.” Detroit Charter, 1918, tit 4, ch 21, § 18.
In determining whether the above quoted portion of the charter provides "like benefits” we first note that the charter does not have to provide for benefits which are in every detail identical to those provided for by the act. Even if the workers’ compensation scheme provides for a particular benefit which the charter does not, the benefits are "like” so long as the two plans are similar in their salient features. MacKay v Port Huron, 288 Mich 129, 134; 284 NW 67.1 (1939), Johnson v Muskegon, 61 Mich App 121; 232 NW2d 325 (1975). Accordingly, the fact that the Detroit City Charter does not provide for a penalty payment as does § 801(2) of the act is not dispositive. It is clear, however, that to be considered as "like benefits” the claimant must have a legally enforceable right to the benefits dependent on the charter and not on the good will of the city council or any other city official. Cichecki v Hamtramck, 382 Mich 428, 435; 170 NW2d 58 (1969). In Cichecki, a police officer for the City of Hamtramck suffered a heart attack and died, leaving a widow and six minor children. Under the city charter the widow was entitled to receive 1/2 of her husband’s salary until she died or remarried. The minor children were not entitled to receive anything under the charter unless their father had died without leaving a widow, in which case they would share equally in the benefits that the widow otherwise would have received. Mrs. Cichecki received the benefits specified in the charter. In addition, and apparently because of the needs of the children, the city council voted to double the amount she received. The children then applied for workers’ compensation benefits. The referee and the appeal board held that the children were not entitled to benefits because they had received "like benefits” under the charter. The Supreme Court reversed, holding that since the children had at best only a mere expectancy of benefits under the charter while the workers’ compensation act provided them with present, vested, and enforceable rights to compensation, the benefits, if any, recoverable under the charter were not "like benefits”. The city argued that the children had in fact received "like benefits” by virtue of the city council’s resolution doubling the amount their mother received. The Supreme Court rejected this argument:
"The appellee would have us affirm the referee’s and appeal board’s determination that the doubling of the amount received by the widow through the resolution of the city council constituted a portion of 'like benefits’ to plaintiff children with which the workmen’s compensation act was concerned. We can make no such affirmation. It is clear that the workmen’s compensation act requires that the 'like benefits’ there proscribed be within the charter pension provision. 'Like benefits’ must be legally enforceable rights dependent on the charter and not reliant on the good will of the city council. In this case, the council’s resolution to increase the widow’s pension gave no further right to the six plaintiffs; their common-law right to support was unaffected by this gesture, and the increase amounts to a gratuity to the widow with no assurance as to its continuation or amount.” Cichecki, supra, 435. (Emphasis in original.)
Kment argues in the instant case that he did not have an enforceable right to benefits under the charter. He points out that the charter provides only that his salary and expenses related to his disability "may become a charge upon the police fund” and that he "may be paid such salary and expenses at the discretion of the commissioner He argues that, as a result, the payment of benefits under the charter is a discretionary act and that, under Cichecki, he has no legally enforceable right to compensation pursuant to the charter.
In response, the city first argues that the commissioner’s discretion under the charter is limited to a determination of whether the disability was duty-related and that in this regard the commissioner is fulfilling the same function as would an administrative law judge under the act charged with determining whether a particular disability arose out of and in the course of employment. We do not believe, however, that under the language of the charter the commissioner’s discretion is automatically so limited. The charter does require the commissioner to "inquire into the circumstances”, but even if he or she is "satisfied that the charge upon said fund is correct and reasonable” the commissioner is still not required to pay the benefits but "may certify the same to be paid from the police fund”. Accordingly, the charter language seemingly grants the commissioner authority to deny benefits even when convinced that the disability is duty-related. This language from this portion of the Detroit City Charter is vastly different from that found in the charters at issue in Cichecki and MacKay v Port Huron, supra, 132, in that those charters provided that the widows "shall” receive the specified benefits.
The city next contends that, while the language of the charter appears discretionary, when read in connection with other sections of the charter, when placed in the context of modern labor relations law, and when consideration is given to the city’s collective-bargaining agreement with plaintiff’s union, the plaintiff does in fact have a legally enforceable right to the benefits mentioned in the charter. Section 6-507 of the Detroit City Charter recognizes that "[ejmployees of the city have the right to collective organization and collective bargaining”. Section 6-508 of the same charter states in part that "[t]he terms of any collective bargaining contract, and all rules and rulings made under it, shall take precedence over any inconsistent classifications, rules, or policies of the personnel department”. Furthermore, the Supreme Court has held that "the duty * * * to perform in accordance with the terms of a collective bargaining agreement prevails over conflicting provisions of the charter of a home-rule city”. Pontiac Police Officers Ass’n v Pontiac, 397 Mich 674, 677; 246 NW2d 831 (1976). While Cichecki holds that to be "like benefits” the benefits must be legally enforceable on the basis of the charter, the Supreme Court has recognized in Pontiac Police Officers that the terms of a collective-bargaining agreement control in case of a conflict with the provisions of a charter. Accordingly, if the collective-bargaining agreement in the instant case between the city and Kment’s union provided for a legally enforceable right to disability benefits, Pontiac Police Officers would suggest that the terms of the agreement would supersede the discretionary charter provision and, under the reasoning of Cichecki, Kment might be deemed to have received "like benefits”. Further analysis of this issue, therefore, requires an examination of the applicable collective-bargaining agreement between the city and Kment’s union, the Detroit Police Officers Association (DPOA).
The provisions of the collective-bargaining agreement referred to by the parties, insofar as they relate to duty-connected disability benefits, begin by incorporating the charter provisions on the same subject. The effect of this incorporation, of course, is to carry over in the agreement the same discretionary language found in the charter. The city then refers to other parts of the agreement concerning the establishment of a grievance procedure, the final step of which is binding arbitration. The procedure established specifically refers to the grievance and arbitration of a "medical issue”. The city argues that the existence of this procedure allows the disabled officer to enforce his or her entitlement to disability benefits. The major problem with the city’s argument is that article XI of the collective-bargaining agreement limits the arbitrators’ authority as follows:
"The Board of Arbitrators shall limit its decision strictly to the interpretation, application, or enforcement of the specific articles and sections of this agreement, and it shall be without power or authority to make any decision:
"2. Involving the exercise of discretion by the City under the provisions of this agreement, its Charter, or applicable laws.”
Since the award of benefits under the charter (and, by incorporation, under the agreement) seemingly remains within the discretion of the city (through the person of the police commissioner), the arbitrators are without authority to order the payment of benefits when, in the exercise of discretion, the commissioner has chosen not to award such benefits. Accordingly, the city fares no better under the terms of the collective-bargaining agreement than it does under the charter. In either event the city must establish that, although apparently discretionary, the provisions of the city charter do in fact establish an enforceable right to recover disability benefits.
Before addressing the city’s remaining arguments concerning the enforceability of the disability charter provision, it is helpful to note the differences between Cichecki and the instant case. In Cichecki, the charter made absolutely no provision for the children of Officer Cichecki unless his wife predeceased him. While the city voluntarily doubled the benefits received by his widow because of the children’s needs, that act was totally independent, having no relation at all to the language of the charter. In the instant case, however, the charter does provide disability benefits for officers such as Kment who are disabled in the line of duty. The problem arises because of the discretionary language used in the charter which would seemingly allow the commissioner to deny benefits even if the disability was, as here, undisputedly duty-related. It is suggested by the city, however, and not disputed by Kment, that once it has been determined that a particular disability is in fact duty-related the benefits provided in the charter are routinely awarded. This further distinguishes the instant case from Cichecki. the Cichecki children were absolutely disqualified from receiving charter benefits since their mother was still living. Officer Kment, on the other hand, was not only specifically included within the class of persons potentially entitled to receive charter benefits (those with duty-related disabilities), but the city suggests that the history of its conduct under the charter establishes that once it is found that an officer is suffering from a duty-related disability, benefits under the charter are always awarded. Accordingly, the city argues that, while the language of the charter appears discretionary, history and custom establish that Kment in fact had an enforceable right to recover the charter benefits he was actually awarded.
Ordinarily, use of the word "shall” indicates that the doing of a particular thing is mandatory while use of the word "may” grants discretion. Law Dep’t Employees Union v Flint, 64 Mich App 359, 368; 235 NW2d 783 (1975). This is not always the case, however, and it has often been held in the context of particular statutes that the term "shall” is not mandatory and that the term "may” is. McBrian v Grand Rapids, 56 Mich 95; 22 NW 206 (1885), Smith v City Comm of Grand Rapids, 281 Mich 235; 274 NW 776 (1937), Burns v Auto-Owners Ins Co, 88 Mich App 663; 279 NW2d 43 (1979), Nortown Theatre, Inc v Gribbs, 373 F Supp 363, 367-368 (ED Mich, 1974), rev’d sub nom American Mini Theatres, Inc v Gribbs, 518 F2d 1014 (1975), rev’d sub nom Young v American Mini Theatres, Inc, 427 US 50; 96 S Ct 2440; 49 L Ed 2d 310 (1976). "Although the form of the verb used in a statute, i.e., whether it says something 'may’ or 'shall’ or 'must’ be done, is the single most important textual consideration bearing on whether a statute is mandatory or directory, it is not the sole determinant and what it naturally connotes can be overcome by other considerations”. 2A Sutherland, Statutory Construction (4th ed), § 57.03, p 415. Chief among such "other considerations” is, of course, the intent of the Legislature. Id., § 57.02, p 414. See Spartan Asphalt Paving Co v Grand Ledge Mobile Home Park, 400 Mich 184, 187; 253 NW2d 646 (1977). "The literal meaning of the words 'may’ and 'shall’ is not always conclusive in the construction of statutes in which they are employed; and one should be regarded as having the meaning of the other when that is required to give effect to other language found in the statute, or to carry out the purpose of the Legislature as it may appear from a general view of the statute Strain v Southerton, 75 Ohio App 435, 440-441; 62 NE2d 633 (1945). (Emphasis added.) In determining the intent of the Legislature, certain generalities may be adduced concerning specific types of statutes and it has been said as a general rule that "the permissive word 'may’ is interpreted as mandatory when the duty is imposed upon a public official and his act is for the benefit of a private individual”. 1A Sutherland, Statutory Construction (4th ed), § 25.04, p 301.
Our Supreme Court has recognized and given effect to these principles. In McBrian v Grand Rapids, supra, the statute in issue provided for the solicitation of sealed proposals relative to the construction of sewers. The statute also provided that the board of public works "may” contract with the lowest responsible bidder. The Supreme Court held:
"In construing this section, with reference to contracting with the lowest responsible bidder, the word 'may’ must be construed as if it meant shall. What the board is required to do is for the benefit- of the public; the object being to invite competition, and prevent favoritism and fraud in awarding contracts for public works. It was not the intention of the Legislature to leave it discretionary with the board whether the contract should be made with the lowest responsible bidder.” McBrian, supra, 98-99. (Emphasis in original.)
And in Smith v City Comm of Grand Rapids, supra, the Supreme Court stated:
" 'Statutes which confer upon a public body or officer power to act for the sake of justice, or which clothe a public body or officer with power to perform acts which concern the public interests or the rights of individuals, are generally regarded as mandatory, although the language is permissive merely, since they are construed as imposing duties rather than conferring privileges.’ ” Smith, supra, 242-243.
Applying these principles to the instant case, we hold that the word "may”, as used in title 4, ch 21, § 18 of the Detroit City Charter of 1918, and as incorporated by reference in § 13-108 of the present Detroit City Charter, should be read as mandating the payment of charter disability benefits once it has been determined that a police officer has suffered a duty-related disability. The charter provision is clearly aimed at providing compensation to those officers who are disabled in the line of duty. While the charter clearly contemplates the exercise of some discretion and specifically refers to the "discretion of the commissioner”, we believe that this discretion was intended to apply solely to the issues of whether a particular disability was duty-related and whether a particular charge was correct and reasonable. The presence of this degree of discretion does not defeat a finding that the benefits provided by the charter are "like benefits”. As the city points out, similar determinations are made under the workers’ compensation act. If the scope of the commissioner’s discretion under the charter were broader than this, however, the essential purpose of the charter provision in question would be defeated. It must be assumed that this charter provision does not con template the arbitrary denial of benefits and, once it is determined that the disability is duty-related and that the amount of the benefits sought are correct and reasonable, the charter suggests no other basis on which the commissioner might deny benefits. The charter imposes a duty on a public official for the benefit of a private individual. Once the threshold requirements are satisfied, the police commissioner must certify that the charter disability benefits be paid.
Because we accord a mandatory construction to the charter provision, we hold that Kment had a legally enforceable right to the benefits provided by the charter. Accordingly, Cichecki does not defeat a finding that the charter benefits are otherwise "like benefits”.
In his original brief on appeal, Kment also contended that the benefits provided under the charter were not "like benefits” because the disability benefit provisions of the charter were susceptible to change by ordinance. See MCL 117.21; MSA 5.2100. Kment has retreated from this argument on rehearing, and, in the face of Detroit Police Officers Ass’n v Detroit, 391 Mich 44; 214 NW2d 803 (1974), concedes that the possibility that the charter might be amended by ordinance does not automatically render the charter benefits unenforceable. We agree, and, accordingly, need not discuss the matter further.
The benefits which Kment has received under the Detroit City Charter are, as a matter of law, "like benefits” and under § 161 he cannot also receive workers’ compensation benefits. Accordingly, the decision of the WCAB is affirmed, and, pursuant to that decision, this cause is remanded to the Bureau of Workers’ Disability Compensation in order that Kment might make an election, on the record, between the benefits provided by the charter and those provided by the workers’ compensation act. Johnson v Muskegon, supra, 127-128.
Affirmed and remanded.
R. M. Maher, P.J., and T. C. Quinn, J., concurred.
"If weekly compensation benefits, accrued weekly benefits, medical bills, or travel allowance are not paid within 30 days after becoming due and payable in cases where there is no ongoing dispute, $50.00 per day shall be added and paid to the worker for each day over 30 days in which the compensation, medical bills, or travel allowance are not paid. Not more than $1,500.00 in total may be added pursuant to this subsection.” MCL 418.801(2); MSA 17.237(801X2).
The statute was amended by 1980 PA 357, to be effective on January 1, 1982. So far as it concerns the quoted portion of the statute the amendment makes several stylistic alterations but does not appear to produce any substantive change.
" 'Sec. 7 Widows, children; pensions; duration, rate. — Pensions shall be paid as in this chapter provided to the widow or the children of any person herein described who shall die from causes entitling him, if still living, to retirement, or who shall die while in retirement or who shall die while eligible to retirement, said pension shall be equal to 1/2 of the rate of pay said person was entitled to receive at the time his disability was caused, or at the time of retirement by reason of length of service, or while eligible for retirement. Such a widow shall, during her lifetime or until she remarries, receive such pension.
" 'Should any such person described in paragraph one, subsection (a) of this chapter die, leaving no widow, his child or children under the age of 18 years shall receive such pension, share and share alike. When any of such children attain the age of 18 years or shall die, the share of such child shall be paid to the remaining child or children under the age of 18 years, share and share alike, until such remaining child or children reach the age of 18 years respectively.’ ” Cichecki, supra, 433. (Emphasis in original.)
While none of the opinions in Pontiac Police Officers commanded a majority, a majority of the justices concurred in the specific holding quoted here. See Central Michigan University Faculty Ass’n v Central Michigan University, 404 Mich 268, 279; 273 NW2d 21 (1978).
There is some doubt as to whether the particular collective-bargaining agreement referred to by the parties was still in effect at the times relevant to the instant case. Given our disposition of this issue, however, and given that the city has failed to support its arguments by reference to a more recent agreement, we do not believe it is necessary to resolve the matter. | [
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Per Curiam.
This matter arises from an automobile accident involving the cars of Ronald and Joyce Johnson and John L. Woodson, which occurred on July 17, 1973. Woodson was uninsured at the time of the mishap.
Suit was commenced on June 6, 1975. Following Woodson’s default, the Secretary of State actively entered the case pursuant to MCL 257.1108; MSA 9.2808, the same being a part of the Motor Vehicle Accident Claims Act. MCL 257.1101 et seq.; MSA 9.2801 et seq.
Following a trial on the merits, judgments were returned in favor of Ronald Johnson in the amount of $20;500 and in favor of Joyce Johnson for $12,500. These judgments were subject to set-offs of $8,461 and $7,000 respectively. The deductions were occasioned by payments made to plaintiffs from the uninsured motorist provisions of their own automobile insurance policies.
Pursuant to MCL 257.1108; MSA 9.2808, the Motor Vehicle Accident Claims Fund became obligated to satisfy the judgments. Upon the entry of these judgments, a dispute arose as to the amount of interest which had accrued. The Secretary of State, representing the fund, contended that interest accrued only on the fund’s ultimate liability, the amount of the judgments after the setoffs were deducted. Plaintiffs asserted that interest was owed on the initial dollar amount of the judgments, i.e., ultimate liability plus the setoff figures.
The Secretary of State on behalf of the fund tendered the undisputed amount of interest and refused to pay the remainder. Plaintiffs brought a motion to compel payment of the remaining amount. The motion was approved and appropriate order entered. The present appeal by leave granted then followed.
The fund’s liability is confined to those limits set forth in MCL 257.1123(1); MSA 9.2823(1). There is no question that the fund is entitled to a setoff in an amount equal to that which a plaintiff has received from his own insurer in the way of uninsured motorist coverage. Ingram v McCastle, 97 Mich App 593; 296 NW2d 116 (1980).
Plaintiffs place considerable reliance upon Douglas v Secretary of State, 32 Mich App 533, 538; 189 NW2d 114 (1971), which holds that the fund is liable for both pre-judgment and post-judgment interest. Douglas further states that such interest is limited only to the "statutory obligation” of the fund. It is noted that Douglas addresses the issue of interest liability in terms of judgments in excess of the statutory limit. The present case is distinguishable in that the awards, with or without setoffs, fall within the statutory limits.
Reference is made to Silisky v Midland Ross Corp, 97 Mich App 470, 475-477; 296 NW2d 576 (1980). The case holds that where prior settlements are deducted from the facial value of a given judgment, interest accrues upon the ultimate liability of the judgment only and not upon its facial value. A contrary result would force a losing party to pay interest on a debt for which that party had no liability. This amounts to unjust enrichment.
In the instant case, the foregoing logic is even more compelling. The Legislature has clearly defined the statutory limits in terms of both ultimate liability and in terms of required setoffs. We believe that the legislative intent was that the fund should pay interest only on its ultimate liability.
The decision of the trial court being to the contrary, that decision is reversed. The matter is remanded for entry of an order in conformity with this opinion. No costs are assessed, a novel question being presented. | [
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Per Curiam.
Stanford C. Stoddard and John W. Butler appeal a probate court decision including certain property in the estate of Myrtle Fruehauf Chamberlin in determining the amount of inheritance taxes due.
On November 11, 1975, Myrtle Chamberlin established a revocable inter vivos trust with appellants named as trustees. Under article 7 of the trust, the appellants were directed to create a pour-over marital trust consisting of 50% of the donor’s adjusted gross estate in the event her husband Gerald survived her. The eighth article established the rights, duties and obligations of Gerald. In summary, the provision required that the trustees pay the net income of the trust to Gerald for as long as he lived. A general power of appointment over the trust corpus was granted to Gerald. He was given unbridled discretion to invade the corpus for any amount at any time and for any reason. In the event the trust remained funded upon his death, the power of appointment was to have been exercised in his will. If not duly exercised by the time Gerald died, the remaining corpus was to be further distributed as directed in article 10 of the trust.
Myrtle Chamberlin died on February 21, 1976. She was survived by her husband Gerald. The marital trust was funded and Gerald enjoyed its benefits, including invasion of the corpus, before his death.
The appellee Michigan Department of Treasury determined that the marital trust was properly included in Myrtle’s estate for inheritance tax purposes. Appellants petitioned the court for a redetermination of the tax, contending that the remainder interest of the marital trust was improperly included in the estate inasmuch as the interest was subject to a general power of appointment. The probate court rejected appellant’s contention holding that since Gerald, as a result of decedent’s death, gained complete dominion and control over all assets of the marital trust, including the right to possession and enjoyment of the corpus, the res was properly included in the estate in computing the inheritance tax on Myrtle Chamberlin’s estate._
Review of the probate court’s ruling requires interpretation of the Michigan inheritance tax act, MCL 205.201 et seq.; MSA 7.561 et seq., which states in pertinent part:
"That after the passage of this act a tax shall be and is hereby imposed upon the' transfer of any property * * * in trust or otherwise, to persons or corporations, not exempt * * * in the following cases:
"Third, When the transfer is of property made by a resident or by nonresident, $hen such nonresident’s property is within this state, by deed, grant, bargain, sale or gift made in contemplation of the death of the grantor, vendor or donor or intended to take effect, in possession or enjoyment at or after such death. Any transfer of a material part of this property in the nature of a final disposition or distribution thereof made by the decedent within 2 years prior to his death, except in case of a bona fide sale for a fair consideration in money or money’s worth, shall, unless shown to the contrary, be deemed to have been made in contemplation of death within the meaning of this section. Such tax shall also be imposed when any such grantee, vendee or donee becomes beneficially entitled in possession or expectancy to any property or the income thereof by any such transfer, whether made before or after the passage of this act;
"Fourth, Whenever any person or persons, corporation or association, whether voluntary or organized pursuant to any statute shall exercise a power of appointment derived from any disposition of property made either before or after the passage of this act, such appointment when made shall be deemed a transfer taxable under the provisions of this act in the same manner as though the property to which such appointment relates belonged absolutely to the donee of such power and had been bequeathed or devised to such donee by will; and whenever any person or persons, corporation or association, whether voluntary or organized pursuant to any statute, possessing such a power or appointment so derived shall omit or fail to exercise the same within the time provided therefor in whole or in part, a transfer taxable under the provisions of this act shall be deemed to take place to the extent of such omission or failure, in the same manner as though the person or persons, corporation or association thereby becoming entitled to the possession or enjoyment of the property to which such power related had succeeded thereto by a will of the donee of the power failing to exercise such power, taking effect at the time of such omission or failure.” MCL 205.201; MSA 7.561.
Appellants claim that the fourth paragraph quoted above is applicable whereas appellee contends that the marital trust falls within paragraph three. We agree with the probate court and appellee herein that paragraph four is not controlling and that the trust was properly included in determining the amount of inheritance tax due.
It is clear from studying paragraph four that it governs the extent that a power of appointment is taxable in the donee’s estate. It does not state that the power is not taxable in the donor’s estate. It is conceivable that the property could be included in both the donor and donee estates for inheritance tax purposes. Paragraph four clearly evidences an intent on the part of the Legislature to clarify the inheritance tax position of the donee in the event of his death. The provision does not address the liability of the original donor.
It is clear that the property belonged to Gerald to dispose of as he saw fit. In the event the power of appointment had not been exercised by Gerald at or before his death, the property was disposed of in paragraph 10 of the trust instrument and properly included in Myrtle’s estate. Thus, Gerald obtained possession and enjoyment of the property at the time of Myrtle’s death, creating a taxable event. In re Canon Estate, 11 Mich App 548; 161 NW2d 768 (1968). Also, see MCL 205.221; MSA 7.582. We agree with the very excellent opinion of the trial court. White v Grand Rapids & I R Co, 190 Mich 1, 4; 155 NW 719 (1915), In re Brackett Estate, 342 Mich 195; 69 NW2d 164 (1955).
Affirmed.
The eighth article of the declaration of trust provided:
"The separate Trust created by the provisions of ARTICLE SEVENTH hereof and designated as the MARITAL TRUST and the property which is the subject matter thereof shall be held, administered and disposed of by the trustees as follows:
"(a) The trustees shall pay the net income from the MARITAL TRUST to the settlor’s husband, GERALD W. CHAMBERLIN, at convenient intervals, but at least quarter-annually, for and during the lifetime of the settlor’s said husband. The settlor’s said husband shall be entitled to the net income of the MARITAL TRUST from the date of the settlor’s death. Net income for the purposes of this MARITAL TRUST shall be deemed to include all income required to qualify the principal of the MARITAL TRUST for the marital deduction under the federal tax law.
“(b) The trustees shall pay to the settlor’s said husband, or as he directs, from the principal of the MARITAL TRUST, from time to time, such amount or amounts of all of the principal as the settlor’s said husband may specify in an instrument or instruments in writing delivered to the trustees in the settlor’s said husband’s lifetime. In addition, the trustees may, in their uncontrolled discretion, from time to time, apply all or any part of the principal toward the support, care, maintenance and benefit of the settlor’s said husband, in such amount or amounts and in such manner as they may determine without regard to the other means of the settlor’s said husband.
"(c) Upon the death of the settlor’s said husband, the entire remaining principal (including property allocated to the MARITAL TRUST subsequent to the death of the settlor’s said husband) of the MARITAL TRUST, shall be paid over, conveyed and distributed, free of any trust, to or in favor of such person or persons, or to the estate of the settlor’s said husband, in such manner and in such proportions, and outright or upon such terms, trusts, conditions and limitations as the settlor’s said husband may appoint in and by his Last Will and Testament. Said power of appointment shall be exercisable only by specific reference to said power in the Last Will and Testament of the settlor’s said husband regardless of the date of execution thereof.
"(d) In the event the settlor’s said husband fails to exercise such power of appointment, or in the event and to the extent the settlor’s said husband shall only partially exercise such power of appointment; or to the extent that any such power of appointment shall be partially or completely void, or to the extent that an exercise of such power of appointment shall not take effect, then upon the death of the settlor’s said husband, the trustees shall pay to the executor or administrator of the settlor’s said husband’s estate an amount equal to the additional estate, inheritance succession and other similar taxes imposed by reason of the inclusion of the property subject to such power of appointment in the gross estate of the settlor’s said husband for any such tax purposes (such amount of taxes attributable to such property shall be the excess of the taxes- actually due over the taxes that would be due if such property were not included in the tax computation), provided such amount shall be in lieu of any contribu tion for such taxes to which the settlor’s said husband’s fiduciary may otherwise by entitled, and the remaining principal shall be held, administered and disposed of under and in accordance with the provisions of ARTICLE TENTH below as part of the principal of the Trust.”
The life interest in the income from the marital trust was included in the estate and has not been contested. | [
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Cynar, J.
Plaintiff appeals as of right from a final judgment of May 5, 1980, exercising jurisdiction in the State of Michigan for purposes of ruling on a child custody question. We affirm the judgment of the circuit court.
The parties were married on January 2, 1977. A daughter, Liesl Tryon Bull, was born on February 18, 1977. At the time of the marriage, both parties were residents of Georgia. On October 20, 1977, defendant filed an action for divorce in the Superior Court of Cobb County, Georgia. On June 15, 1978, the Georgia court issued a final judgment and decree, which awarded defendant custody of the child and gave plaintiff reasonable visitation rights including two weeks with the child each summer. See Bull v Bull, 243 Ga 72; 252 SE2d 494 (1979).
On June 20, 1978, defendant filed a motion to modify the divorce judgment to allow plaintiff to visit the child only in defendant’s home. At the hearing on the motion held on August 3, 1978, the Georgia superior court ordered defendant to surrender the child to plaintiff for a one-week visitation period as required by the judgment. Following the hearing, however, neither defendant nor the child could be located. Plaintiff then filed a motion to change custody. This motion was granted at an August 11, 1978, hearing at which defendant was represented by counsel. On the same date but prior to the August 11, 1978, hearing, defendant left the state. On August 23, 1978, defendant was held in contempt for refusal to honor plaintiffs visitation rights and for failure to obey the order of August 11, 1978, changing custody. Defendant’s counsel appealed these rulings, which were affirmed by the Georgia Supreme Court on February 6, 1979.
Defendant and the child moved to Michigan on September 7, 1978. In the meantime, plaintiff filed a complaint in the Cobb County District Attorney’s office charging defendant with "felonious interference with custody”. An extradition warrant was issued and served on defendant in Michigan on November 3, 1978.
On November 6, 1978, plaintiff filed a civil complaint in the Oakland County Circuit Court, seeking a writ of habeas corpus and return of the child based on the Georgia decree. Defendant filed an answer and a "counter-complaint” on December 14, 1978. In her counter-complaint, defendant requested that the Michigan court exercise jurisdiction under the Uniform Child Custody Jurisdiction Act and make a determination as to which party should have custody.
Following hearings in the Oakland County Circuit Court, the trial court initially refused to exercise jurisdiction. In reaching this decision, the court found that when defendant filed her counter-complaint there were insufficient contacts with the State of Michigan to establish it as the home state of the child. The court also found that no emer gency situation existed which would prevent the court from returning the child to Georgia. However, the court also found that when plaintiff filed his complaint for a writ of habeas corpus, the Cobb County Superior Court’s order granting him custody of the parties’ child had been stayed by the Supreme Court of Georgia. Accordingly, the Oakland County Circuit Court held that plaintiff’s complaint was invalid as filed and would have to be amended before it would entertain a request to enforce the Georgia decree. This decision was apparently rendered from the bench on September 5, 1979, but the written order and opinion were not filed until October 11, 1979.
On September 18, 1979, plaintiff filed an amended complaint seeking a writ of habeas corpus and enforcement of the custody order issued by the Georgia superior court. In reply, defendant filed an answer and an "amended counter-complaint” on October 3, 1979. In defendant’s amended counter-complaint, she alleged that there had been a significant change of circumstances since the Georgia superior court issued its order granting plaintiff custody of the child and asserted that she and the child had established sufficient contacts with Michigan to allow Michigan to assert jurisdiction in the matter. Plaintiff filed a motion for accelerated judgment based on the trial court’s earlier decision.
Following a hearing held on November 14, 1979, the trial court found that defendant and the child had established a significant connection with this state and exercised jurisdiction to rule on the custody question under MCL 600.653; MSA 27A.653. The court stated in pertinent part:
"The Court finds that the child has been living with the mother consistently since her birth, and the Court can determine that the mother has been in the State of Michigan for over one year; that the mother is employed in the State of Michigan; that the mother has the remainder of her immediate family living with her in the State of Michigan; that she has signed a lease on a residential home for the ensuing year; all of which go for her intention to make Michigan her home state.
"The Court finds that the mother does have at this time a significant connection with this State, and there is available in this State substantial evidence concerning the child’s present, past, future care, protection, training and personal relationships.
"Therefore, this Court will take jurisdiction in this matter to determine custody.”
Pursuant to the trial court’s ruling at the November 14, 1979, hearing, the trial court on February 6, 1980, entered an order exercising jurisdiction pursuant to MCL 600.653; MSA 27A.653 as requested by defendant in her October 3, 1979, amended counter-complaint for custody of the parties’ minor child. The court found that Janelle Dillon Bull, at that time, had a significant connection with this state and there was available in the state substantial evidence concerning the child’s past, present, future care, protection, training, and personal relationships. Further, the plaintiffs petition for writ of habeas corpus, petition for immediate enforcement and motion for accelerated judgment were denied with prejudice. On motion of the plaintiff, the order of February 6, 1980, was entered as a final judgment on May 5, 1980.
Plaintiff contends that the Oakland County Circuit Court was required, under MCL 600.663; MSA 27A.663 of the Uniform Child Custody Jurisdiction Act (hereafter UCCJA), to enforce the Georgia court’s order of August 11, 1978, modifying the parties’ divorce judgment. This section provides:
"Sec. 663. The courts of this state shall recognize and enforce an initial or modification decree or judgment of a court of another state which had assumed jurisdiction under statutory provisions substantially in accordance with sections 651 to 673 or which was made under factual circumstances meeting the jurisdictional standards of sections 651 to 673 as long as this decree or judgment has not been modified in accordance with jurisdictional standards substantially similar to those of sections 651 to 673.”
Under section 663, enforcement of a custody decree from another state is mandatory if the state in which the decree was rendered (1) has adopted the act, or (2) has statutory jurisdictional requirements substantially like the act, or (3) would have had jurisdiction under the facts of the case if the act had been the law in the state. See 9 Uniform Child Custody Jurisdiction Act (ULA), § 13, Commissioner’s Note, p 151.
Since Georgia did not adopt UCCJA until January 1, 1979, the act was not in effect on August 11, 1978, when the Cobb County Superior Court modified its decree. It must therefore be determined whether the Georgia court exercised jurisdiction under factual circumstances meeting the jurisdictional standards of §§ 651 to 673 of UCCJA. The Oakland County Circuit Court was not required to recognize and enforce the Georgia decree because Georgia’s court order modifying its prior custody decree was not entered under circumstances comporting with this act.
Since both parties and the child were domiciled in Georgia more than six months prior to the entry of the modification order, Georgia was the child’s "home state”. MCL 600.652(e); MSA 27A.652(e). Georgia therefore had general jurisdiction to modify its earlier custody decree. Defen dant did receive sufficient notice of the proceedings, as required by MCL 600.654; MSA 27A.654. The Oakland County Circuit Court found that defendant had constructive notice of the August 11, 1978, hearing and did appear through counsel. Additionally, § 654 also requires that a contestant be afforded a reasonable opportunity to be heard before a court enters a decree or judgment in a custody proceeding. The change of custody hearing in Georgia was not a meaningful proceeding in making a determination concerning the best interests of the child. The Georgia court’s order was based on defendant’s denial of plaintiffs visitation rights without any evidence being taken concerning the best interests of the child. The fact that the superior court’s order was affirmed by the Georgia Supreme Court would not require enforcement. See Berlin v Berlin, 21 NY2d 371; 235 NE2d 109; 288 NYS2d 44 (1967). To the extent that the Oakland County Circuit Court determined in the October 11, 1979, order that Michigan must recognize and enforce the Georgia decree, it was in error.
When dealing with the modification of a child custody decree of another state, a court of this state must consider the provisions of MCL 600.664(1); MSA 27A.664(1). This section provides:
"(1) If a court of another state has made a custody decree or judgment, a court of this state shall not modify that decree or judgment unless it appears to the court of this state that the court which rendered the decree or judgment does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with sections 651 to 673 or has declined to assume jurisdiction to modify the decree or judgment and the court of this state has jurisdiction.” (Emphasis added.)
Thus, two requirements under § 664(1) must be met before a Michigan court can modify a custody decree from another state. First, the court which rendered the decree either does not now have jurisdiction under the jurisdictional prerequisites of MCL 600.653(1); MSA 27A.653(1), or that court declines to exercise jurisdiction. Second, the Michigan court has jurisdiction. Brown v Brown, 104 Mich App 621; 305 NW2d 272 (1981).
In determining whether the Georgia court that rendered the decree had jurisdiction under UCCJA, the clause "does not now have jurisdiction” used in § 664(1) refers to the time when the petition to set aside or modify the custody decree is filed in Michigan. See 9 Uniform Child Custody Jurisdiction Act (ULA), § 14, Commissioner’s Note, p 154. Accordingly, in the instant case, December 14, 1978, the date on which defendant filed her original "counter-complaint” requesting the Michigan court to exercise jurisdiction and determine custody, would be the controlling date.
The prerequisites for jurisdiction to decide a custody dispute are enumerated in § 653(1) of the act and are stated in pertinent part as follows:
"(1) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree or judgment if any of the following exist:
"(a) This state is the home state of the child at the time of commencement of the proceeding or had been the child’s home state within 6 months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state.
"(b) It is in the best interest of the child that a court of this state assume jurisdiction because the child and his parents, or the child and at least 1 contestant, have a significant connection with this state and there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships.” MCL 600.653(l)(a), (b); MSA 27A.653(l)(a), (b).
"Home state” is defined under MCL 600.652(e); MSA 27A.652(e) as follows:
"(e) 'Home state’ means the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as parent, for at least 6 consecutive months, and in the case of a child less than 6 months old the state in which the child lived from birth with any of the persons mentioned. Periods of temporary absence of the named persons are counted as part of the 6-month or other period.”
On December 14, 1978, defendant had been living in this state approximately three months and had been away from Georgia for approximately four months. Georgia was the child’s home state under §§653(l)(a) and 652(e) at the time the proceedings were commenced in Oakland County Circuit Court. Therefore, on the date defendant filed her counter-complaint, Georgia still had jurisdiction to decide the custody dispute. There is no indication that the Georgia court declined to exercise jurisdiction after proceedings were commenced in Michigan. On the contrary, the record indicates that after the Georgia Supreme Court affirmed the superior court’s order on February 6, 1979, the superior court issued an order requiring defendant to appear and show cause why the child should not be turned over to plaintiff.
The Oakland County Circuit Court held that it could not entertain plaintiffs complaint and request for a writ of habeas corpus seeking return of the minor child because at the time the complaint was filed the order granting plaintiff custody had been stayed by supersedeas under Georgia statutes. The Oakland County Circuit Court held that plaintiff’s initial petition was invalid and would have to be amended before it would entertain any request for the enforcement of the Georgia custody order. Plaintiff filed an amended complaint on September 18, 1979, in which he alleged that on February 6, 1979, the Supreme Court of Georgia affirmed the superior court’s order awarding him custody. Defendant filed an amended counter-complaint on October 3, 1979. A hearing was held and the Oakland County Circuit Court, in considering the question of jurisdiction, noted that defendant (1) had been in Michigan with the child for over a year, (2) had obtained employment in Michigan, (3) had the remainder of her immediate family (i.e., her children from previous marriages) living with her in Michigan, and (4) had executed a one-year lease on a house. The court concluded that Michigan could exercise jurisdiction under subsections 653(l)(a) and (b) of the act. Further, the court recognized that defendant left the State of Georgia and retained physical custody of the child in contravention of the Georgia court’s order changing custody. Thus, under MCL 600.658(2); MSA 27A.658(2), the Michigan court had discretion to refuse jurisdiction. Section 658(2) provides:
"2. Unless required in the interest of the child, the court shall not exercise its jurisdiction to modify a custody decree or judgment of another state if the petitioner, without consent of the person entitled to custody, has improperly removed the child from the physical custody of the person entitled to custody or has improperly retained the child after a visit or other temporary relinquishment of physical custody. If the petitioner has violated another provision of a custody decree or judgment of another state, the court may decline to exercise its jurisdiction if this is just and proper under the circumstances.”
The Oakland County Circuit Court found that the best interests of the child required that the Michigan court exercise jurisdiction despite defendant’s misconduct. Therefore, jurisdiction was not precluded by defendant’s misconduct. See Brown v Brown, supra, Green v Green, 87 Mich App 706; 276 NW2d 472 (1978).
In the October 11, 1979, opinion, the court determined that defendant did not have sufficient connection with Michigan to allow the court to exercise jurisdiction when she filed her counter-complaint in December, 1978. It was only after the parties amended their pleadings that the court considered the child’s significant connection with this state that had developed during the pendency of the proceedings. The court erred in so considering connections that evolved during such time period. This conclusion is reached for two reasons. First, under the court’s order of October 11, 1979, plaintiff was required to amend his initial pleadings, apparently to allege that the Georgia Supreme Court had affirmed the superior court’s order awarding him custody. An amended pleading to allege additional facts is allowed under GCR 1963, 118.1. Under GCR 1963, 118.3, however, such amendment would relate back to the date the original pleading was filed. It is submitted that the period on which the court must focus to determine jurisdiction under UCCJA would still remain the date on which defendant filed her original counter-complaint. This is supported by the terms of the custody act (§ 653[l][a]) and the Commissioner’s Commentary, 9 Uniform Child Custody Jurisdiction Act (ULA), § 13, p 151. See also In re Sagan, 261 Pa Super 384; 396 A2d 450 (1978). There is nothing in the act which would indicate that jurisdictional requirements may be established during the pendency, as opposed to the commencement, of the proceedings. Therefore, the lower court erred in allowing defendant to submit an amended counter-complaint alleging jurisdictional facts which had developed during the pendency of the proceedings. Secondly, the court erred in requiring plaintiff to amend his complaint requesting a writ of habeas corpus because the order awarding custody had been stayed pending appeal. A supersedeas has the effect of suspending the power of a court to enforce a judgment or decree that is appealed. 4 Am Jur 2d, Appeal and Error, § 364, p 839. However, when the Georgia Supreme Court affirmed the order awarding custody on February 6, 1979, there was no impediment to the judgment’s enforcement. Therefore, the August 11, 1978, Georgia court order was in full force and effect at the time the Michigan court issued its order of October 11, 1979, and there was no need for amendment. Accordingly, assuming the validity of the August 11, 1978, Georgia decree, the Michigan court would not have had jurisdiction to make a child custody determination on the basis stated in its opinion.
Plaintiff further asserts that the Oakland County Circuit Court was precluded from exercising jurisdiction because a proceeding concerning custody of the child was pending in Georgia at the time defendant filed her counter-complaint.
MCL 600.656; MSA 27A.656 provides in pertinent part:
"Sec. 656. (1) A court of this state shall not exercise its jurisdiction under sections 651 to 673 if at the time of filing the petition a proceeding concerning the cus tody of the child is pending in a court of another state exercising jurisdiction substantially in conformity with sections 651 to 673, unless the proceeding is stayed by the court of the other state because this state is a more appropriate forum or for other reasons or unless temporary action by a court of this state is necessary in an emergency to protect the child because the child has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent.” (Emphasis added.)
Even assuming the validity of the August 11, 1978, Georgia decree, it is our opinion that the Oakland County Circuit Court did not err when it did not immediately defer the matter to the Georgia court under § 656(1). An appeal was pending in Georgia when defendant filed her first counter-complaint. In this pleading, defendant specifically informed the court that the August 11, 1978, custody order was currently on appeal to the Georgia Supreme Court. It has been held under § 656 of UCCJA that the term "pending” includes the situation where the foreign court’s custody determination has been appealed by one of the contestants. See In re Custody of Rector, 39 Colo App 111; 565 P2d 950 (1977). In Michigan, a case is deemed "pending” until final determination on appeal. See Ford Motor Co v Jackson, 47 Mich App 700, 702; 209 NW2d 794 (1973). Accordingly, the case was still pending in Georgia at the time defendant filed her pleading and, as a general rule, the Oakland County Circuit Court therefore would be precluded from intervening in the matter. However, exceptions to this rule exist where the rendering court failed to exercise jurisdiction in conformity with UCCJA or where temporary action by a Michigan court would be necessary in an emergency to protect the child because the child had been subjected to or threatened with mistreat ment. Both of these exceptions apply here. Defendant’s first counter-complaint alleged that plaintiff had abused her and threatened to take the child out of the country. Defendant requested, inter alia, that the court stay enforcement of the Georgia custody order because of the danger to the minor child. Testimony was taken at the hearing held on January 18, 1979 regarding plaintiff’s alleged mistreatment of the child. Further, the entire basis of the Georgia change of custody determination was the defendant’s denial of plaintiff’s visitation rights without any consideration of what was in the best interests of the child. Such a procedure would not be in conformity with the requirements of UCCJA.
The trial court’s decision to address defendant’s counter-complaint despite the pendency of the appellate proceedings in Georgia was not error. Defendant raised objections to the propriety of the Georgia proceeding and also indicated that the child would be mistreated if plaintiff were awarded custody. Therefore, the lower court’s intervention was not improper under § 656(1).
Additionally, since the Georgia custody order was not issued in conformity with the applicable UCCJA provisions, the Oakland County Circuit Court was not required to enforce the amended custody order. Therefore, although the Oakland County Circuit Court accepted jurisdiction for the wrong reason, the result was correct and is affirmed on appeal.
Affirmed. | [
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] |
Per Curiam.
This action involves the validity of an "owned vehicle exclusion” to the uninsured motorist provision of an automobile insurance policy.
Plaintiffs, husband and wife, were injured on June 2, 1974, when Mr. Osborne’s 1969 Chevrolet station wagon was involved in an accident with an uninsured vehicle. Plaintiffs’ vehicle was insured under a policy issued by the American Fellowship Insurance Company, with whom plaintiffs have settled any potential claims. At the time of the accident, plaintiffs’ son, Arthur Osborne, resided with them. Arthur Osborne owned a 1968 Chevrolet insured by defendant. The uninsured motorist provision of that policy provided, in part:
"Exclusions
"This policy does not apply under Part III:
"(a) to bodily injury to an insured while occupying a highway vehicle (other than an insured automobile) owned by the named insured or a relative, or through being struck by such a vehicle * * *."
Plaintiffs sought coverage under the uninsured motorist provision of their son’s policy. When defendant denied coverage pursuant to the "owned vehicle exclusion”, plaintiffs commenced the present suit. The trial court granted defendant’s oral motion for summary judgment, and plaintiffs appeal as of right.
In Boettner v State Farm Mutual Ins Co, 388 Mich 482; 201 NW2d 795 (1972), the Supreme Court held a similar exclusion unenforceable after concluding it to be unconscionable and contrary to the public policy expressed in 1965 PA 388, MCL 500.3010; MSA 24.13010. Id., 487-488; see also Blakeslee v Farm Bureau Mutual Ins Co of Michigan, 388 Mich 464; 201 NW2d 786 (1972). The statutory section, the uninsured motorist amendment, provided in part:
"No automobile or motor vehicle liability policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this state * * * unless coverage is provided therein * * * for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles, including owners or operators insured by an insolvent insurer, because of bodily injury, sickness or disease, including death, resulting therefrom, unless the named insured rejects such coverage in writing as provided herein.”
The uninsured motorist amendment was repealed by 1972 PA 345, effective October 1, 1973, the same day on which the no-fault insurance act went into effect. 1972 PA 294. In Bradley v Mid- Century Ins Co, 409 Mich 1, 22-23; 294 NW2d 141 (1980), the Supreme Court reaffirmed that owned vehicle exclusions violate the legislative policy of the uninsured motorist amendment with regard to cases arising before the repeal. Nonetheless, the Court also held that in cases arising subsequent to the repeal "other insurance” clauses limiting uninsured motorist protection are enforceable. Id., 46-59. We believe that the rationale utilized by the Court is applicable to the instant case. Therefore, we hold that in cases arising subsequent to the repeal of the uninsured motorist amendment "owned vehicle exclusions” are likewise enforceable.
In Bradley, supra, 50-51, the Court observed that the Blakeslee and Boettner decisions were based upon a perceived legislative statement of public policy, namely the policy of compensating otherwise unprotected accident victims. The Court concluded that the repeal signified that public policy no longer demanded mandatory uninsured motorist coverage. Although uninsured motorists still exist after the passage of the no-fault act, accident victims are protected either by their own no-fault policies (as in the present case) or, in the absence of an applicable policy, by the assigned claims facility. MCL 500.3101 et seq.; MSA 24.13101 et seq., MCL 500.3172; MSA 24.13172. Moreover, with the advent of the assigned claims facility, uninsured motorist protection need not be mandated to protect the fiscal integrity of the now defunct Motor Vehicle Accident Claims Fund. Bradley, supra, 51-53.
The Bradley decision also noted "other insurance” limitation clauses are no longer unconscionable or beyond the reasonable expectations of insured motorists with the repeal of the statute. Because uninsured motorist coverage now acts as a substitute for residual liability insurance, it is no longer the primary means of recovery for victims of uninsured motorists. These changes make it unlikely that a motorist could reasonably contemplate duplicate coverage. Id., 54-59. For these same reasons, owned vehicle exclusions can likewise no longer be considered unconscionable or beyond the insured’s expectations.
We conclude that the policy exclusion in the instant case is enforceable and that summary judgment was therefore appropriate.
Affirmed. | [
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R. M. Maher, J.
Defendant was charged with and convicted of attempted unarmed robbery, MCL 750.530; MSA 28.798, MCL 750.92; MSA 28.287, at a bench trial conducted in early August, 1979. He was sentenced to a prison term of from three to five years and appeals by leave granted.
There is really very little dispute as to what happened on May 21, 1979, at the Alpine Party Store near Suttons Bay, Michigan. Instead, the dispute at trial centered on whether what took place amounted to a criminal offense or merely a bad joke. It appears that on the day in question the defendant went to the home of a friend, Sandra Storey, where he proceeded to consume a large amount of vodka mixed with orange juice. Defendant was still suffering from insect stings acquired the previous day so he also took a pill called "Eskaleth 300”, containing 300 milligrams of Lithium, which Storey had given him. After about an hour, the pair each mixed a half-gallon container of their favorite drinks (vodka and orange juice, in the defendant’s case) and set off down the road in Storey’s '74 MGB roadster. At approximately 8:15 or 8:30 in the evening, defendant (who was driving) pulled into the parking lot of the Alpine Party Store. Although he apparently did not tell Storey why he pulled in, defendant testi fied that the reason for the stop was to buy a pack of cigarettes.
Concerning events inside the store, testimony was presented by Susan Stanchfield, the clerk and sole employee present at the time. She testified that defendant came in and began talking to and whistling at the Doberman Pinscher guard dog on duty at the time. She gave him a "dirty look”, because she didn’t want him playing with the dog. Defendant then approached the cash register, where Stanchfield was stationed, and demanded money. Stanchfield testified that she thought the defendant was joking, and told him so, until he demanded money again in a "firmer tone”.
"Stanchfield: By his tone I knew he meant business; that he wanted the money.
"Prosecution: You felt he was serious?
"Stanchfield: I knew he was serious.”
Stanchfield then began fumbling with the one dollar bills until defendant directed her to the "big bills”. Stanchfield testified that as she was separating the checks from the twenty dollar bills defendant said "I won’t do it to you; you’re good-looking and I won’t do it to you this time, but if you’re here next time, it won’t matter”. A woman then came in (Storey) who put a hand on defendant’s shoulder and another on his stomach and directed him out of the store. Stanchfield testified that she called after the defendant, saying that she would not call the police if he would "swear never to show your face around here again”. To this defendant is alleged to have responded: "You could only get me on attempted anyway”. Stanchfield then directed a customer to get the license plate number on defendant’s car while she phoned the owner of the store.
Defendant also testified concerning events inside the store. He stated that the first thing he noticed when he walked in the door was the Doberman Pinscher. When he whistled the dog came to him and started licking his hand. Defendant testified that while he was petting the dog Stanchfield said "[w]atch out for the dog; he’s trained to protect the premises”.
"Defendant: Well, as soon as she told me that the dog was a watchdog and a guarddog [sic], I just walked up in front of the cash register and said to Sue [Stanch-field] — I said, T want your money’.
"I was really loaded and it just seemed to me like — it was kind of a cliche because of the fact that they’ve got this big bad watchdog there that’s supposed to watch the place and there I was just petting it, and it was kind of an open door to carry it a little further and say hey, I want all your money because this dog isn’t going to protect you. It just kind of happened all at once.
"She said — I can’t quote it, but something to the effect that if this is just a joke, it’s a bad joke, and I said, 'Just give me your big bills’.
"Then she started fumbling in the drawer, and before she pulled any money out of the drawer — I don’t know whether she went to the ones or the twenties — I said— as soon as she went toward the drawer to actually give me the money, I said, 'Hey, I’m just kidding’, and something to the effect that you’re too good-looking to take your money.
"[A]nd she said, 'Well, if you leave right now and don’t ever come back I won’t call the police’, and I said, 'Okay, okay’, and I started to back up.
"[A]nd Sandy [Storey] — I mean I don’t know if I was stumbling back or stepping back, but I know she grabbed me, my arm, and said, 'Let’s go’, and we turned around and left, and that was it.”
Both Stanchfield and the defendant testified that there were other people in the store during the time that defendant was in the store, but the testimony of these people revealed that they did not hear what was said between Stanchfield and the defendant.
Storey testified that she remained in the car while defendant went into the store but that after waiting a reasonable time she went inside to see what was happening. As she approached the defendant she heard Stanchfield say "just promise you will never do that again and I won’t take you license number”. She then took defendant’s arm, turned around, gave Stanchfield an "apologetic smile”, and took defendant back to the car. Once in the car, defendant told Storey what had happened in the store, saying "but I told her [Stanch-field] I was only kidding”. Defendant and Storey then drove to a shopping center where defendant was subsequently arrested.
The general attempt statute, under which defendant was prosecuted, provides in part as follows:
"Any person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act towards the commission of such offense, but shall fail in the perpetration, or shall be intercepted or prevented in the execution of the same, when no express provision is made by law for the punishment of such attempt, shall be punished * * MCL 750.92; MSA 28.287.
The elements of an attempt are (1) the specific intent to commit the crime attempted and (2) an overt act going beyond mere preparation towards the commission of the crime. People v Coleman, 350 Mich 268; 86 NW2d 281 (1957), People v Youngs, 122 Mich 292; 81 NW 114 (1899), People v Degraffenreid, 19 Mich App 702, 708, fn 3; 173 NW2d 317 (1969), People v Gardner, 13 Mich App 16, 18; 163 NW2d 668 (1968), People v Bowen, 10 Mich App 1, 7; 158 NW2d 794 (1968), CJI 9:1:01, 2 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 1070, p 1014. Considering the second element first, it is clear that in the instant case defendant committed sufficient overt acts. As the trial court noted, there was evidence on every element of an unarmed robbery except for the actual taking of money. From the evidence presented, including the evidence of defendant’s intoxication, the question of whether defendant undertook these acts with the specific intent to commit an unarmed robbery is a much closer question. After hearing all the evidence, however, the trial court found that defendant possessed the requisite intent and we do not believe that finding was clearly erroneous. See People v Anderson, 64 Mich App 218, 221; 235 NW2d 746 (1975).
Defendant raised an additional defense in the trial court. Assuming that he committed the necessary overt acts with the requisite specific intent, defendant contended that he was not guilty because he voluntarily abandoned his criminal enterprise before consummating the offense attempted. The defense was rooted in the language of the attempt statute, which refers to a person doing an act towards the commission of an offense and adds: "but shall fail in the perpetration, or shall be intercepted or prevented in the execution of the same”. MCL 750.92; MSA 28.287. (Emphasis added.) Defendant argued that, under the statute, a person who abandons a criminal scheme of his or her own volition, instead of through the intervention of outside forces, has not committed an attempt. The prosecution argued that once the defendant had committed an overt act with the requisite intent, a punishable attempt had occurred which could not subsequently be abandoned. The trial court rejected defendant’s arguments, holding that an attempt may still be shown even if the defendant fails to consummate the offense attempted due to a mere lack of perseverance. On appeal, defendant contends that the trial court erred in rejecting the legal basis of his defense.
Regardless of what else might be said on the subject, the authorities are in agreement that it is no defense that a defendant fails to carry through to completion the crime attempted because of the intervention of outside forces, because circumstances turn out to be different than expected, or because the defendant meets more resistance then expected. On the issue of voluntary renunciation of criminal purpose after an overt act beyond preparation but before the completion of the attempted crime, however, there are few reported cases nationwide and no general consensus. La-Fave & Scott, Handbook on Criminal Law, § 60, p 449, Model Penal Code (Tentative Draft No 10, 1960), § 5.01(4), p 69. The status of the law in Michigan is equally unclear, and there are apparently no cases under the general attempt statute which clearly accept or reject the possibility of such a defense. See People v Stephens, 84 Mich App 250, 253; 269 NW2d 552 (1978), lv den 406 Mich 865 (1979), Michigan Second Revised Criminal Code (Final Draft, 1979), § 1020, p 115.
Despite the lack of direction from the cases, the issue has continuously intrigued commentators and the authors of proposed criminal codes. Some commentators have espoused the traditional view that voluntary abandonment is not a defense where the elements of an attempt are already established, although it may be relevant to the issue of whether defendant possessed the requisite intent in the first place. Miller, Handbook of Criminal Law, § 29, p 100, Clark & Marshall, Law of Crimes (6th ed, Wingersky Rev), § 4.13, p 229. Under this view, once a defendant has gone so far as to have committed a punishable attempt, the crime is "complete” and he or she cannot then abandon the crime and avoid liability anymore than a thief can abandon a larceny by returning the stolen goods. Other commentators, however, emphasizing the differences between attempts and other crimes and focusing on the purpose of the law of attempts, contend that a truly voluntary abandonment of the attempted offense should be recognized as a defense to the attempt as well. This view was early on expressed by Wharton: "If an attempt be voluntarily and freely abandoned before the act is put in process of final execution, there being no outside cause prompting such abandonment, then this is a defense * * *”. 1 Wharton, Criminal Law (12th ed), § 226. Perkins, while acknowledging that this was not the "accepted view” at common law, nevertheless concedes that Wharton’s position "has much to commend it”. "[Although a criminal plan has proceeded far enough to support a conviction of criminal attempt, it would be sound to recognize the possibility of a locus penitentiae so long as no substantial harm has been done and no act of actual danger committed”. Perkins, Criminal Law (2d ed), ch 6, § 3, p 590.
LaFave & Scott similarly acknowledge that the position taken by the prosecution in the instant case is the "traditional view”. Relying on the purpose of the law of attempts, however, they argue that this position is not the better view. The law of attempts seeks to plug the gap between mere criminal intent, which is not punishable, and the completed offense. Because "[t]he objectives of the criminal law would not be sufficiently served if the only action which could be taken against an attempt were on-the-spot prevention of the crime on that particular occasion”, "one important function served by the crime of attempt is to provide a basis whereby law enforcement officers may intervene in time to prevent a completed crime. More precisely, attempt law makes possible preventive action by the police before the defendant has come dangerously close to committing the intended crime”. LaFave & Scott, supra, § 59, pp 426, 427. (Emphasis in orginal.) (Footnote omitted.) Because these same purposes may also be served by a voluntary abandonment of the crime attempted, these commentators conclude that:
"On balance, the arguments in favor of recognizing voluntary abandonment as a defense to a charge of attempt are more persuasive than the arguments against the defense. For one thing, recognition of the defense is consistent with the rationale of attempt, as a complete and voluntary renunciation of criminal purpose 'tends to negative dangerousness.’ In addition, if the defense is allowed, then those who have crossed the threshold of attempt will still be encouraged to desist and thereby escape any penalty. The counter-argument is that the defense may actually embolden those considering some criminal endeavor because they will be more willing to take the first steps toward the crime when they know they can withdraw with impunity. This risk, however, seems slight, as does the risk that recognition of the defense will result in the acceptance of false claims of repentance.” LaFave & Scott, supra, § 60, p 450. (Footnotes omitted.)
For these reasons the drafters of various modern criminal codes have incorporated the defense of voluntary abandonment into the law of attempts. Section 5.01(4) of the Model Penal Code recognizes as a defense to an attempt crime the abandonment of efforts to commit the crime attempted under circumstances manifesting a complete and voluntary renunciation of criminal purpose. Based on this section of the Model Penal Code, the authors of the Michigan Second Revised Criminal Code recognized voluntary renunciation of criminal purpose as an affirmative defense to a prosecution for attempt. The comments to § 5.01 of the Model Penal Code (quoted extensively in the Michigan committee commentary) explain the bounds of the defense and the reasons for its recognition:
"By a 'voluntary’ abandonment is meant a change in the actor’s purpose not influenced by outside circumstances, what may be termed repentance or change of heart. Lack of resolution or timidity may suffice. A reappraisal by the actor of the criminal sanctions hanging over his conduct would presumably be a motivation of the voluntary type as long as the actor’s fear of the law is not related to a particular threat of apprehension or detection.
"The basis for allowing the defense involves two related considerations.
"First, renunciation of criminal purpose tends to negative dangerousness. As previously indicated, much of the effort devoted to excluding early 'preparatory’ conduct from criminal attempt liability is based on the desire not to punish where there is an insufficient showing that the actor has a firm purpose to commit the crime contemplated. In cases where the actor has gone beyond the line drawn for preparation, indicating prima facie sufficient firmness of purpose, he should be allowed to rebut such a conclusion by showing that he has plainly demonstrated his lack of firm purpose by completely renouncing his purpose to commit the crime.
"A second reason for allowing renunciation of criminal purpose as a defense to an attempt charge is to encourage actors to desist from pressing forward with their criminal designs, thereby diminishing the risk that the substantive crime will be committed. While, under the proposed subsection, such encouragement is held out at all stages of the criminal effort, its significance becomes greatest as the actor nears his criminal objective and the risk that the crime will be completed is correspondingly high. At the very point where abandonment least influences a judgment as to the dangerousness of the actor — where the last proximate act has been committed but the resulting crime can still be avoided — the inducement to desist stemming from the abandonment defense achieves its greatest value.
"It is possible, of course, that the defense of renunciation of criminal purpose may add to the incentives to take the first steps toward crime. Knowledge that criminal endeavors can be undone with impunity may encourage preliminary steps that would not be undertaken if liability inevitably attached to every abortive criminal undertaking that proceeded beyond preparation. But this is not a serious problem. First, any consolation the actor might draw from the abandonment defense would have to be tempered with the knowledge that the defense would be unavailable if the actor’s purposes were frustrated by external forces before he had an opportunity to abandon his effort. Second, the encouragement this defense might lend to the actor taking preliminary steps would be a factor only where the actor was dubious of his plans and where, consequently, the probability of continuance was not great.
"On balance, it is concluded that renunciation of criminal purpose should be a defense to a criminal attempt charge because, as to the early stages of an attempt, it significantly negatives dangerousness of character, and, as to later stages, the value of encouraging desistance outweighs the net dangerousness shown by the abandoned criminal effort.” Model Penal Code (Tentative Draft No 10, 1960), § 5.01(4), pp 69-73. (Footnotes omitted, emphasis in original.)
The authorities do recognize a limitation on the defense of abandonment. If a defendant has taken the last proximate step toward the completion of the attempted offense and is powerless to prevent its consummation, yet fails to actually commit the ultimate offense for other reasons, it may be too late to abandon the criminal purpose and avoid liability for the attempt. A popular example concerns a defendant who, with the intent to kill, fires a shot toward the intended victim but misses the mark altogether or succeeds only in wounding his enemy. Under such circumstances, it would not be a defense to show that the intent to kill was abandoned after the shot was fired. On the other hand, a defendant who lights the fuse of a bomb but repents and stomps out the fuse before the explosion should be allowed to assert voluntary abandonment as a defense. In this second example, the possibility of avoiding criminal liability altogether, even at the last second, encourages the defendant to prevent the greater harm from taking place. As the comments to the Model Penal Code suggest, such encouragement is most important in these final seconds.
As noted above, the issue presented is one of first impression'in this state. We are persuaded by the trend of modern authority and hold that voluntary abandonment is an affirmative defense to a prosecution for criminal attempt. The burden is on the defendant to establish by a preponderance of the evidence that he or she has voluntarily and completely abandoned his or her criminal purpose. Abandonment is not "voluntary” when the defendant fails to complete the attempted crime because of unanticipated difficulties, unexpected resistance, or circumstances which increase the probability of detention or apprehension. Nor is the abandonment "voluntary” when the defendant fails to consummate the attempted offense after deciding to postpone the criminal conduct until another time or to substitute another victim or another but similar objective. Such a holding is not at odds with the terms of the statute, which refer to one who "fails”, is "prevented”, or is "intercepted” before completion of the attempted offense. Such language lends itself to a holding that voluntary abandonment is a defense. LaFave & Scott, supra, § 60, p 449, Model Penal Code (Tentative Draft No 10, 1960), § 5.01(4), pp 70-71.
In the instant case, the trial court recognized that involuntary abandonment is not a defense, but it also rejected defendant’s claim that voluntary abandonment was a defense. As a result, the trial court never determined whether defendant’s abandonment was voluntary or involuntary. Accordingly, defendant’s conviction is reversed and this case is remanded for a new trial at which defendant may present a defense of voluntary abandonment according to the guidelines set forth in this opinion. We recognize that the judge who presided at defendant’s trial was forced to decide the issue without benefit of precedent established by the appellate courts of this state. We are persuaded, however, that the defense of voluntary abandonment is in accord with the rationale of the law of attempts and that the defendant is entitled to present such a defense.
Reversed and remanded._
R. B. Burns, P.J., concurred.
After defendant was arrested samples were taken of .his blood, urine, and stomach contents. An analytical forensic toxicologist employed by the state police testified that, based on the blood sample taken after defendant’s arrest, defendant’s blood alcohol level at the time of the events in the store would have been approximately .255 percent.
Some cases have stated that failure to complete the attempted offense is a third element, People v Bauer, 216 Mich 659, 661; 185 NW 694 (1921). "Failure” is not, however, universally held to be an element of the offense of attempt and Perkins argues strongly against its inclusion. Perkins, Criminal Law (2d ed), ch 6, § 3, pp 552-557.
For a more detailed discussion of the overt act requirement, see People v Bowen, supra, Hall, General Principles of Criminal Law (2d ed), pp 576-586, Model Penal Code (Tentative Draft No 10, 1960), § 5.01(1)(c), pp 39-48.
The dissent in Stephens clearly rejects the idea of such a defense, People v Stephens, supra, 255 (Beasley, P.J., dissenting). The dissent in People v Youngs, supra, 300, does state that the law "may refuse conviction when repentance and abandonment are shown”, but, as with many older cases, it is unclear whether the abandonment spoken of is before or after the performance of an overt act. If before, then it is not really an issue of "abandonment” as that term is used here since there cannot in any event be a conviction for attempt without an overt act.
Wharton’s original views appear, however, to have been abandoned by his revisors. See 1 Wharton’s Criminal Law & Procedure (Anderson), § 76, p 161.
"It is an affirmative defense to a prosecution under this section that, under circumstances manifesting a voluntary and complete renunciation of his criminal purpose, the actor avoided the commission of the offense attempted by abandoning his criminal effort and, if mere abandonment is insufficient to accomplish this avoidance, that the actor took further and affirmative steps that prevented the commission thereof.” Michigan Second Revised Criminal Code (Final Draft, 1979), § 1001(3), p 94.
"A renunciation is not 'voluntary and complete’ within the meaning of this chapter if it is motivated in whole or in part by either of the following:
"(a) A circumstance which increases the probability of detection or apprehension of the defendant or another participant in the criminal operation or which makes more difficult the consummation of the crime.
"(b) A decision to postpone the criminal conduct until another time or to substitute another victim or another but similar objective.” Id., § 1020, p 113.
It is not unconstitutional to place this burden on the defendant since voluntary abandonment does not negate any element of the offense.
Under the South Dakota attempt statute, for example, which is substantially similar to that of Michigan, the failure to complete the attempted offense must be due to intervening circumstances apart from, and independent of, the will of the defendant. State v Martinez, 88 SD 369; 220 NW2d 530 (1974), State v Judge, 81 SD 128; 131 NW2d 573 (1964). | [
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] |
V. J. Brennan, P.J.
Defendant appeals from a judgment entered in favor of plaintiff in the Common Pleas Court of Detroit in plaintiff’s action against defendant for tortious conversion of plaintiff’s personal property. The circuit court subsequently affirmed the trial court judgment. Defendant now appeals by leave granted.
The certified concise statement of facts and proceedings discloses the following facts:
Plaintiff was the owner of a 1967 Cadillac which he purchased a year and a half previously for the sum of $200. On October 10, 1978, the Cadillac was inoperable by virtue of the fact that the motor was missing and, in addition, the vehicle had no registration plates whatsoever. Defendant, in the busi ness of towing and storing vehicles for the last 41 years, from time to time had towed and stored abandoned vehicles at the direction and request of the City of Detroit.
On September 22, 1978, an employee of the Community and Economic Development Department of the City of Detroit sent a letter to the Detroit Police Department’s Fifth Precinct, indicating that there were a number of abandoned vehicles being stored illegally on city owned properties, one such property being a vacant lot adjacent to 4818 Pennsylvania.
On October 10, 1978, the Fifth Precinct issued an abandoned vehicle report to defendant, requesting removal of said vehicles to defendant’s place of business at 2619 Connor, Detroit. Among the abandoned vehicles, one was described as a two-door 1967 Cadillac, located at an empty lot adjacent to 4818 Pennsylvania. That day, defendant towed a two-door 1967 Cadillac to its place of business.
The following day, October 11, 1978, plaintiff appeared at defendant’s place of business, claimed ownership of the Cadillac, and demanded its return. Defendant advised plaintiff that the vehicle could be returned only upon payment of towing and storing charges of $12. Plaintiff claimed that defendant requested $24, not $12. Plaintiff refused to pay the charges, and upon the expiration of the statutory 45-day redemption period set forth in a notice to plaintiff from the Bureau of Driver and Vehicle Services of the Department of State, on November 27, 1978, defendant delivered the vehicle to Troy Auto Parts, where the Cadillac was shredded into scrap.
On February 20, 1979, plaintiff instituted this lawsuit seeking damages of $1,300 for the loss of his vehicle. At the subsequent bench trial, plaintiff testified, inter alia, as to the description and condition of his Cadillac, that it had been purchased for $200 approximately one to one and one-half years before, that the present value was $1,300. Moreover, plaintiff testified that his Cadillac was located on private property at 4826 Cooper with the property owner’s permission and not on the lot adjacent to 4818 Pennsylvania. Plaintiff’s brother’s testimony at trial corroborated that plaintiff’s vehicle was at 4826 Cooper and not the vacant lot next to 4818 Pennsylvania.
Defendant’s proofs, conversely, were that the vehicle it removed was located on a vacant lot adjacent to 4818 Pennsylvania.
The trial court resolved the controverted testimony as to the location of the Cadillac in favor of plaintiff and adversly to defendant. The trial court found, and the circuit court agreed, that plaintiff’s vehicle was located at 4826 Cooper, a private lot, at the time defendant towed away the vehicle. It further found that such act amounted to conversion and awarded damages of $200 which was the purchase price paid by plaintiff for the vehicle one and one-half years prior to defendant’s conversion.
On appeal, the defendant first argues that the trial court erred in finding that defendant converted plaintiff’s vehicle since its acts were privileged under either the common-law or the statutory provisions of MCL 257.252; MSA 9.1952. However, a reading of defendant’s arguments readily reveals that they are premised upon the erroneous notion that the vehicle was removed from the "lot adjacent to 4818 Pennsylvania”.
This factual assertion was explicitly rejected by the trial court which found, contrary to defendant’s contentions, that the vehicle was located on private property at 4826 Cooper when it was re moved by defendant. A trial court’s finding of fact will not be set aside unless it is clearly erroneous: "when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed”. Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976), National Car Rental v S & D Leasing, Inc, 89 Mich App 364; 280 NW2d 529 (1979), lv den 407 Mich 927 (1979), Kurrle v Walker, 56 Mich App 406, 409-410; 224 NW2d 99 (1974).
Since this factual finding is fatal to the underpinnings of defendant’s argument of common-law and statutory privileges, we refrain from discussing these arguments in further detail. The facts show that the City of Detroit instructed the defendant to remove a vehicle from a city lot located adjacent to 4818 Pennsylvania; the trial court found that the defendant removed a vehicle from a private lot located at 4826 Cooper. Contingent upon this factual determination which is not clearly erroneous, we affirm the legal conclusion that defendant wrrongfully converted plaintiff’s automobile. Gum v Fitzgerald, 80 Mich App 234, 238; 262 NW2d 924 (1977). Since conversion is an intentional tort, the defense of "good faith” is unavailing. Warren Tool Co v Stephenson, 11 Mich App 274, 299; 161 NW2d 133 (1968), Kearney v Clutton, 101 Mich 106; 59 NW 419 (1894), Gibbons v Farwell, 63 Mich 344, 349; 29 NW 855 (1886).
We find no error in the trial court’s award of damages in the amount of $200. The measure of damages for the conversion of personal property is the value of the property at the time of the conversion, in the absence of any testimony establishing a peculiar value in the goods to the owner. Hudson v Enichen, 308 Mich 79, 85; 13 NW2d 215 (1944). A purchaser of an automobile, or other personalty, is competent to give testimony regarding its value. Kavanagh v St Paul Fire & Marine Ins Co, 244 Mich 391, 394; 221 NW 119 (1928), Duma v Janni, 26 Mich App 445, 452; 182 NW2d 596 (1970).
Mathematical precision in the assessment of damages is not required, where from the very nature of the circumstances precision is unattainable, particularly where the defendant’s own act causes the imprecision. Godwin v Ace Iron & Metal Co, 376 Mich 360, 368; 137 NW2d 151 (1965). Public policy demands that, when damages are not susceptible of precise calculation because of an act of the wrongdoer, the risk of giving more than fair compensation be cast upon the wrongdoer. Id., 369. Also, see Purcell v Keegan, 359 Mich 571, 576; 103 NW2d 494 (1960). Allison v Chandler, 11 Mich 542, 553-554 (1863). Where the fact of liability is proven, difficulty in determining damages will not bar recovery. Troppi v Scarf, 31 Mich App 240, 260; 187 NW2d 511, lv den 385 Mich 753 (1971). The Court must do the best with what is presented to it. Purcell, supra, 576.
Here, plaintiff stated that he purchased the vehicle eighteen months prior to its conversion for $200. The lower court fixed the value at $200 at the time of the conversion. Applying the above-cited rules to the testimony heard in this case, it can be said that plaintiff sustained his burden of proof of damages, such burden being substantially eased because defendant’s conduct caused the inability to fix the vehicle’s value more precisely.
Nor do we find error in plaintiffs alleged failure to mitigate damages. The rule requiring the injured party to mitigate damages does not apply where the invasion of property rights is due to defendant’s intentional, or positive and continuous, tort. McCullagh v Goodyear Tire & Rubber Co, 342 Mich 244, 255; 69 NW2d 731 (1955), Allen v Morris Building Co, 360 Mich 214, 217-218; 103 NW2d 491 (1960).
Lastly, since we affirm the trial court’s finding that defendant committed the intentional tort of conversion, the shield of governmental immunity is no direct or derivative defense to the action against defendant’s individual personal liability. Tocco v Piersante, 69 Mich App 616, 625-626; 245 NW2d 356 (1976), lv den 399 Mich 882 (1977), Lockaby v Wayne County, 406 Mich 65, 77; 276 NW2d 1 (1979).
Affirmed. Costs to plaintiff. | [
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] |
Allen, J.
Which unit of government, the State of Michigan or the City of Grand Rapids, is liable for workers’ disability compensation benefits due the dependents of the deceased, an assignment clerk of the 61st District Court? This question of first impression comes to us as a result of a determination made on December 14, 1979, by the Workers’ Compensation Appeal Board that decedent’s death arose out of and in the course of his employment with the 61st Judicial District Court and that, pursuant to Judges of the 74th Judicial Dist v Bay County, 385 Mich 710; 190 NW2d 219 (1971), the deceased was an employee of the State of Michigan. From both determinations, the State of Michigan appeals by leave granted. Defendant City of Grand Rapids cross-appeals only the determination that decedent’s death arose out of and in the course of the deceased’s employment.
In the latter part of 1968, the deceased, Joseph L. Kain, was hired by the 61st District Court as a bailiff. Some six months later, he was hired by the five judges who serve in that court as the court’s assignment clerk. He continued to be employed in that position until his death on February 15, 1974. Early in the afternoon on that date, the deceased came to the second floor of the building in which he worked, perspiring and looking pale. He com plained of chest pains and stated he was going to his doctor’s office. He arrived at the doctor’s office about 3 p.m.,. where he sustained an apparent cardiac arrest and was pronounced dead on arrival at a hospital at about 3:34 p.m.
Two petitions were filed on behalf of Mary Kathryn Kain, plaintiff and widow of the deceased. The first, filed in March, 1974, listed the City of Grand Rapids as employer. The second, filed in May, 1974, designated the State of Michigan as employer. On October 25, 1976, an administrative law judge found that the decedent suffered a personal injury in the course of his employment, resulting in death, that the deceased was not an employee of the City of Grand Rapids, and that his death was the result of a coronary thrombosis precipitated by the deceased’s negotiating stairs between 1:30 and 2 p.m. on February 15, 1974. Appeal was taken by the State of Michigan and its statutory insurance carrier, Michigan State Accident Fund, to the Workers’ Compensation Appeal Board (WCAB).
The appeal board stated the issues as follows: (1) Did plaintiff sustain her burden of proving that her husband’s death arose out of and in the course of his employment with the 61st Judicial District Court?, and (2) Did the hearing referee err in finding that the State of Michigan was the employer of decedent? In a 25-page decision summarizing the testimony and conflicting claims in detail issued December 14, the appeal board affirmed the administrative law judge’s decision that decedent suffered a compensable injury. In so doing, the appeal board did not base its decision on the narrow grounds found by the administrative law judge, viz.: coronary thrombosis precipitated "by negotiating stairs between 1:30 and 2:00 p.m. on 2- 15-74”. Instead, the appeal board found that "employment related stress accelerated the development of this (coronary artery) disease process within the decedent” and "the fatal episode occurred far sooner than it might otherwise have occurred because of the accelerating effect of the employment generated stress on the underlying disease process”. On the second issue, the appeal board found:
"The State of Michigan argues strenuously that the decedent was not its employee, but, rather, that Mr. Kain was employed by the City of Grand Rapids. This board lacks the power to resolve constitutional issues. However, in Judges of the 74th Judicial Dist v Bay County, 385 Mich 710 [190 NW2d 219] (1971), the Michigan Supreme Court determined that employees of a judicial district were to be deemed employees of the state, rather than employees of the district control unit, despite the fact that they were actually paid by that control unit. Therefore, I find that Joseph Kain was an employee of the State of Michigan and affirm the referee’s dismissal of the City of Grand Rapids as a party defendant in this cause.”
I. Did the Workers’ Compensation Appeal Board apply the correct legal standard in determining that the decedent’s death was work-related, and are such fíndings of fact and conclusions of law supported by competent, substantial, and material evidence on the record?
Defendants contend that because the appeal board made no findings relative to the amount of exertion used by decedent within an hour or so of his death the requisite "exertion” required as a condition of liability in Zaremba v Chrysler Corp, 377 Mich 226; 139 NW2d 745 (1966), is lacking. We do not read Zaremba as requiring some unusual exertion. Neither does our Supreme Court which said in Kostamo v Marquette Iron Mining Co, 405 Mich 105, 125-126; 274 NW2d 411 (1979):
"In Zaremba v Chrysler Corp, 377 Mich 226, 231; 139 NW2d 745 (1966), the Court declared that compensation was payable for work-related heart damage without regard to whether there was unusual exertion before the attack:
"Medical theory appears to be unanimous that work-related stress can precipitate or aggravate cardiac injury. The Legislature has, for certain occupations, created a presumption that a relationship between employment and cardiac injury exists. This Court has approved recovery under the workers’ compensation law for heart injury caused by job-related stress. We do not add to or disturb those precepts, but, rather, address matters of proof.” (Emphasis supplied.) (Footnotes omitted.)
The appeal board’s finding that decedent suffered severe stress in his job is overwhelmingly supported by the record. The presiding judge of the district court described the job of assignment clerk as "a pressure pot” job. James Farrer, court administrator for the 61st District, testified that he became increasingly aware of friction developing between the deceased and other employees and that people who worked with the deceased commented that the deceased looked tired. The deceased’s secretary testified of increasing friction between the deceased and the court administrator which caused the deceased to feel that he was "being squeezed closer and closer into a corner” and to consider leaving the job. Other witnesses testified that in the last few months deceased had lost a lot of weight, looked tired and gray, and had noticeably aged. Two doctors, each a specialist in cardiology, testified that in their opinion the demands of the job were an important accelerating, aggravating, and contributing factor in the decedent’s premature death from coronary arteriosclerosis. A third medical expert, Dr. Richard Bates, testifying for the defendants, stated that in his opinion the deceased’s heart attack was in no way related to his employment.
In Teddy v Dep’t of State Police, 102 Mich App 412; 301 NW2d 876 (1980), a case factually similar to the instant case, a lieutenant in the personnel division suffered a heart attack while at work. He died some seven weeks later. As in the instant case, there was abundant testimony of work-related pressures, hostilities, and conflicting demands, but no evidence of unusual exertion on the day of the seizure. Likewise, Dr. Bates, testifying for the defendants, stated that the heart attack was unrelated to the deceased’s job while the plaintiff’s medical witness testified that on the job emotional stress was at least one of the factors in the development of the deceased’s arteriosclerotic heart disease. The WCAB found the injury to be work-related and the defendants appealed, claiming, as here, that the testimony did not establish a work-related compensable heart attack under the standards set forth in Kostamo. This Court rejected the defendants’ claim saying:
"As required by Kostamo, the WCAB carefully assessed the probabilities in light of the factual background through an examination of both medical and lay testimony. It is also clear from the opinion which testimony was accepted and which was rejected by the WCAB.
"It is our opinion that the WCAB properly set forth the legal standard to be employed, the testimony adopted, and the path it followed through the conflicting evidence in reaching its conclusion. There was ample evidence to support a causal nexus between the deceased’s job and his heart attacks. The WCAB was definite in its conclusion that the employment was related to the injury. The evidence, both from the record of the hearing before the administrative law judge and from the independent hearing conducted by the WCAB, amply supports the WCAB’s conclusion and, therefore, may not be disturbed on appeal.” Teddy, supra, 417-418.
Similarly, we. find ample evidence to establish a causal nexus between the deceased’s job and the heart attack on February 15, 1974.
The state’s second ground for contending that the appeal board applied an improper standard in awarding benefits is the following language in Kostamo, supra, 116:
"Arteriosclerosis is an ordinary disease of life, which is not caused by work or aggravated by the stress of work.”
This claim, which was not raised or addressed in Kostamo, must be considered in context with the entirety of the Kostamo opinion. The instant case is similar to the claim involving Jarman v Atlas Supply Co, reported with Kostamo. Jarman had arteriosclerotic heart disease, suffered a heart attack, and lived. The issue was whether the work was a cause of the heart damage. In Jarman, the WCAB awarded benefits, finding that there was evidence of stress in the employment and adopting the expert testimony offered by Jarman relating the stress to his heart damage.
The Supreme Court set forth the test to determine whether compensation is payable:
"Unless [1] the work has accelerated or aggravated the illness, disease or deterioration and, thus, contributed to it, or [2] the work, coupled with the illness, disease or deterioration, in fact causes an injury, compensation is not payable.” Kostamo, supra, 116. (Emphasis supplied.)
The Supreme Court found that although "[arteriosclerosis is an ordinary disease of life which is not caused by work or aggravated by the stress of work”, Jarman had produced evidence of job stress and had related the stress to the heart damage. Therefore, Jarman was within the second alternative which allowed the payment of compensation.
Likewise, in the present case, plaintiff produced evidence of job stress and related the stress to the heart damage. The WCAB correctly awarded benefits.
II. Did the Workers’ Compensation Appeal Board err in holding that the State of Michigan was the decedent’s employer and, accordingly, was liable for workers’ compensation benefits to the decedent’s dependents?
The question raised is of first impression. The determination that the state was Kain’s employer and the subsequent affirmance by the Workers’ Compensation Appeal Board hinged, to a large extent, on the Supreme Court’s holding in Judges of the 74th Dist, supra. There the issue was whether a collective-bargaining agreement, executed by a county board of commissioners as an employer, bound a judicial district. The Court held:
"Employees of the district court are employees of the judicial district, an administration unit of the state’s one district court, which in turn is a subdivision of Michigan’s one court of justice. They are not employees of the county, city or other district control unit, even though they are paid by the district control unit.” Id., 723.
The Court explained its reasoning:
"Our decision today is not only consistent with the manifest legislative intent but wholly consonant with the constitutionally prescribed functioning of the courts under inherent powers.” Id., 727.
Although Judges of the 74th Dist did not deal with the determination of an employer for purposes of the Worker’s Disability Compensation Act, its holding at first blush appears to support the finding of the Workers’ Compensation Appeal Board that the state was Mr. Kain’s employer. The Attorney General disagrees, claiming that Judges of the 74th Dist is not controlling in that it is inconsistent with a series of Supreme Court decisions holding that the existence of an employer-employee relationship for workers’ compensation purposes is to be determined by the economic realities of the situation. Goodchild v Erickson, 375 Mich 289, 293; 134 NW2d 191 (1965), Solakis v Roberts, 395 Mich 13, 25; 233 NW2d 1 (1975), Askew v Macomber, 398 Mich 212, 217-218; 247 NW2d 288 (1976). In Askew, supra, 217, the Court stated that the relevant factors of the "economic reality test” were:
"(1) Control of a worker’s duties, (2) the payment of wages, (3) the right to hire and fire and the right to discipline, and (4) the performance of the duties as an integral part of the employer’s business towards the accomplishment of a common goal.”
Application of the Askew factors to the situation before us discloses that as to factor (2) the city would be the decedent’s employer, but as to factors (1), (3) and (4) the judicial district would be the decedent’s employer. Judge Woodrow A. Yared, testifying in his capacity as the presiding judge of the 61st District Court, explained that the entire salary of the decedent and all district court employees was paid by the City of Grand Rapids. The decedent received no financial remuneration from the state. Furthermore, the operative salary range for all court employees, except the judge, is subject to local control. Judge Yared also testified that the district court judges had control of a district court employee’s duties and had the right to hire, fire, and discipline an employee. He explained that decedent was definitely an integral part of the court system which was administered by a district court administrator who reported to the district court judges. Thus, depending upon the relative weight given each factor, Askew leads to mixed conclusions as to who was the decedent’s employer. Nevertheless, on balance, we are of the opinion that the decedent was not a city employee nor a state employee in the sense that term is generally understood but, instead, was an employee of the 61st judicial district which is an administrative unit of the state’s one court of justice. In this respect, our decision conforms with the holding in Judges of the 74th Judicial Dist, supra.
However, it does not necessarily follow that the state is responsible for workers’ compensation benefits. This, we perceive, is the flaw in the decision of the appeal board. Judges of the 74th Judicial Dist did not hold that the State of Michigan was the employer. Instead, it held that "the judicial district” was the employer. A judicial district is an entity created by statute.
"A district court is established in the state. The district court is a court of record. The state is divided into judicial districts of the district court each of which is an administrative unit subject to the superintending control of the supreme court.” MCL 600.8101(1); MSA 27A.810K1).
The 61st judicial district is defined as follows:
"The sixty-first district consists of the city of Grand Rapids, is a district of the third class and has 5 judges.” MCL 600.8130(1); MSA 27A.8130(1).
Section 8104 then establishes a "district control unit” which in the case of the 61st district is the City of Grand Rapids and proceeds to state that except as otherwise provided the entire cost of operating the court is the responsibility of the "district control unit”.
"Except as otherwise provided in this act, a district control unit shall be responsible for maintaining, financing, and operating the court only within its political subdivision.” MCL 600.8104(2); MSA 27A.8104(2).
As part of its obligation to maintain and operate the court, the district control unit has control of its workers’ duties and the right to hire, fire, and discipline its employees. One aspect of maintaining the court is ensuring that the court’s employees are protected against job-related injuries. Nothing provided elsewhere in the act places this responsibility on the state.
The district control unit’s obligation to finance the court also suggests that the unit is the employer for workers’ compensation purposes. The only court cost assumed by the state under the "except as otherwise provided” language of § 8104(2) is the salary of the district judge and, more recently upon enactment of 1980 PA 438, infra, the cost of dictating equipment. MCL 600.8621(2); MSA 27A.8621(2). In other words, a reading of the various sections of the statute as a whole discloses a clear legislative intent to make the judicial district the employer but, except for the judges’ salaries (even that could be supplemented by the district) and dictating equipment, mandates that the "local control unit” is to pay all the costs of operating the court. Again, we empha size that the statute does not make the state the employer. Instead, the employer is the judicial district, whose entire costs (with the two exceptions noted) are paid by the "local control unit”. While it is true that in most instances the employer is the party charged with providing workers’ compensation insurance, such is not true where the Legislature mandates that someone else assume the cost. In the case before us, that "someone else” is the local control unit. Thus, even if one concludes that a "judicial district” is the State of Michigan, it is clear that the Legislature has required the local control unit to provide coverage. Accordingly, we hold that the appeal board did err in holding that defendant State of Michigan was liable for workers’ compensation benefits to decedent’s dependents.
Our holding in the above respect is strengthened by the passage of 1980 PA 438, approved by the Governor on January 15, 1981. That act reorganized the court system in Wayne County by merging the administrative functions of the Wayne Circuit and Recorder’s Courts, abolishing the Recorder’s Court Traffic and Ordinance Division and the Common Pleas Court, and replacing them with the 36th District Court for the City of Detroit. The bill provides that the employees of the 36th District Court shall become state employees and further provides that the state, in addition to paying the salaries of district court employees, would gradually assume the operating and maintenance costs of the court. House Legislative Analysis of Senate Bill 1106 and House Bill 5630, dated March 6, 1981, explained the relevant section of 1980 PA 438 as follows:_
"Senate Bill 1106 would establish an eight-member state judicial council to serve as the employer of employees who worked in the circuit, recorder’s, probate or district court and were paid by the state. However, the council would not be the employer of judges, and would be the employer of district court magistrates for compensation purposes only.
"The state would pay the compensation of employees working in the Thirty-Sixth District Court, and would provide funding to meet operational and maintenance expenses of the court beginning in the 1982-83 state fiscal year.”
The fact that the amendatory act explicitly provides that employees of the newly created 36th District Court are to be state employees and further provides that commencing after a date certain the state will begin paying operational and maintenance costs of the district court indicates to us that the Legislature did not intend that employees in other judicial districts were state employees or that the state would be responsible for workers’ compensation benefits. Until the Legislature makes comparable amendments affecting the employees of other judicial districts, workers’ compensation insurance is the responsibility of the designated control unit. Accordingly, the determination of the Workers’ Compensation Appeal Board as to issue II is reversed. The determination as to issue I is affirmed.
Affirmed in part, reversed in part. No costs, a question of public importance being involved.
T. Gillespie, J., concurred.
On cross-examination decedent’s secretary testified as follows:
"Q. So you don’t know whether or not Mr. Kain used the stairway or the elevator the day in question?
"A. I’m sure it was the elevator. He always used that. "Q. So he did not, as Mr. Reamon suggested, walk up and down the stairs to your knowledge?
"A. No. I would say not.” (Emphasis supplied.)
"Q. And why was that, doctor, if you could explain.
"A. Mr. Kain worked generally about 40 hours a week at a job that he enjoyed. There were tensions at work as there are in any job that is enjoyable for normal people. On the day of his death, without previous warning, he suffered a heart attack. That day was no different than any previous days in his employment when he did not suffer a heart attack. There is no logical way in which we can state that his employment then brought on or aggravated his death.”
The salary of the district judge (as distinguished from all other court employees) is paid by the state and is equal to 90% of the annual salary paid by the state to a circuit judge. However, in addition, the district judge "may receive from the district control unit in which the judge regularly holds court an additional salary as determined by the governing legislative body thereof’. MCL 600.8202; MSA 27A.8202.
"(a) The county in districts of the first and second class.
"(b) The city or township in districts of the third class except as provided in subdivision (c).
"(c) The city or the incorporated village in districts of the third class in which portions of 2 townships comprise an incorporated village.” MCL 600.8104(1); MSA 27A.8104U).
In a memorandum filed with the hearing referee, the City of Grand Rapids admitted that under § 8104 it was responsible for paying "expenses, maintaining, financing and operating the district court in the city”. However, the city argues that providing workers’ compensation coverage was not one of the included expenses.
SB 1106 and HB 5630 became 1980 PA 438 and 1980 PA 440, respectively. | [
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Cynar, J.
Although a timely claim of appeal was not filed, this matter is before us on a delayed application for appeal, which was granted.
Defendant was charged in a two-count complaint. In count I she was charged with conspiracy to commit murder in violation of MCL 750.157a; MSA 28.354(1), MCL 750.316; MSA 28.548, and in count II she was charged with first-degree murder in violation of MCL 750.316; MSA 28.548. She was convicted on both counts on November 20, 1979, after a jury trial. Defendant was sentenced to serve a life term in prison. We affirm defendant’s convictions.
On the evening of June 9, 1979, Clarence Boose, Sr., was shot to death in the upstairs of his home at 316 Pierson Road, Flint. The deceased was the spouse of the defendant. Testimony of a neighbor, Nancy Cowens, indicated that she had been present in the Boose home at the time of the shooting. She went there to use the telephone. As she approached the Boose house, the defendant was getting out of a car which was parked in front of the house. Defendant was accompanied by her 11-year-old mentally retarded daughter. As this was taking place, two men dressed in green approached the house from the opposite direction. These men were later identified by Cowens at police line-ups held on June 12, 1979, and June 13, 1979, as being Henry Hurt and Clifford Kerse. Cowens followed the defendant into the house and she was followed by the two men. After they entered the house, the defendant directed the two men to go upstairs. Mr. Boose was not present at that time.
After Cowens used the phone, she was offered a soft drink by defendant. Defendant then stated that she was going to another part of the house to bathe her daughter. Cowens remained in the kitchen. Shortly thereafter Mr. Boose came home, and when he entered the kitchen he asked Cowens where his wife was. Cowens told him that defendant was bathing their daughter in another room. Mr. Boose then went back outside. Defendant then entered the kitchen, and as she did so she leaned back toward the stairway located in the room from which she had entered and said, "Are you guys still up there”. Cowens heard a response but she could not understand it.
Cowens testified that a short time later Mr. Boose came back into the house. Defendant asked him to go upstairs to change some lightbulbs. He went upstairs and came back with a sack containing some bulbs, took one out and went back upstairs. Cowens then heard several shots. Mr. Boose came running down the stairs with blood about his shoulder and told Cowens that he had been shot and asked her to call the police. He then ran outside. As Cowens picked up the phone, Hurt and Kerse entered the kitchen, each holding a gun. One of them pointed a gun at Cowens and told her to put the phone down. They then went out the same door from which Mr. Boose had exited.
Cowens stated that defendant then entered the kitchen and asked Cowens what had happened. Cowens told her that her husband had been shot and asked defendant if she wanted Cowens to call the police. Defendant told Cowens that she would give her some "change” if she did not call the police. Defendant also told Cowens that she knew that the men who had shot her husband would be able to recognize Cowens.
Cowens testified that shortly thereafter she left the Boose house to return to her home located next door. When she got to her house, she saw a pool of blood on her porch and went back to the Boose house. She again asked defendant if she should call the police and again defendant told her that she would give her "some change” if she did not do so.
A few minutes later defendant told Cowens to call the police from a downstairs phone. Defendant then made several other phone calls from the phone located in the kitchen. After the police arrived, their investigation disclosed the body of Mr. Boose in the Cowens home. He had been shot a total of six times.
Defendant told an investigating officer that she did not know what had happened, for she had been in another room bathing her child when these events took place. Neither Cowens nor the defendant told the police of the presence of the two men. Cowens eventually did come forth with that information on June 11, 1979. She stated that she did not do so earlier because she was afraid.
There was testimony by Sheila Jones, another daughter of defendant, that several meetings had taken place between Hurt, Kerse and defendant. Jones also testified that defendant had asked her on several occasions to find someone to kill the deceased. She stated that defendant had told her shortly after her first meeting with Hurt that Hurt had agreed to kill "Ronnie”. Ronnie was the defendant’s boyfriend. Jones testified that three days prior to the murder, defendant had asked her in the presence of Hurt and Kerse to take Hurt and Kerse to Detroit to get some guns.
On cross-examination, Jones admitted having been convicted of a felony. She also admitted that she had attempted to forge a check in the name of the defendant while the defendant was in jail on the present charges.
A defense witness testified that during the period of time that both defendant and Jones were in jail on these charges, Jones had passed the defendant a note which stated that if the defendant did not help her get out of jail, Jones would "make it bad for her”.
Jones did not tell the police of these events until sometime in the fall of 1979. She testified that she did not*do so earlier because she was confused and did not know whether she should tell. She stated that she finally decided to come forth because she had been "seeking the Lord”.
Clarence Boose, Jr., son of the deceased and the defendant, testified that he had seen the defendant in the presence of Kerse and Hurt on at least three occasions during the week of the murder. He also said that the defendant asked him three days prior to the murder if he knew where she could get an unregistered handgun.
Prior to the presentation of evidence, the court had ordered that the witnesses be sequestered. On at least four occasions Clarence Boose, Jr., had entered the courtroom during the course of trial. Officer Buszek stated that the entries involved no more than Boose sticking his head in the courtroom whereupon the officer whould point outside and Boose then went right out of the courtroom. Defendant moved that the witness be disqualified from testifying for having violated the sequestration order. The court ruled that defendant could bring the fact that the witness had violated the order out on cross-examination but did not order that the witness be precluded from testifying. The cross-examination relating to the witness’s entry into the courtroom during trial was scant.
The remainder of the evidence presented dealing with the events leading up to and including the day of the murder are presented in greater detail in the discussion of the first issue.
I. Was the evidence legally sufficient to support a conviction of either conspiracy to commit murder or first-degree murder?
Defendant claims that the evidence was insufficient to enable the jury to find that the elements of the respective offenses were proven beyond a reasonable doubt. The people contend that this issue has not been properly preserved for appeal by a motion for a new trial. People v Cage, 83 Mich App 534; 269 NW2d 213 (1978), People v Mattison, 26 Mich App 453; 182 NW2d 604 (1970). Cage and Mattison both involve claims that the verdict was against the great weight of the evidence, not that the evidence was insufficient to support the verdict. Here, there is no claim relating to the great weight of the evidence. It was not necessary for the defendant to move for a new trial to preserve this issue for appeal.
With respect to the sufficiency issue, the controlling statutes are:
"Sec. 157a. Any person who conspires together with 1 or more persons to commit an offense prohibited by law, or to commit a legal act in an illegal manner is guilty of the crime of conspiracy punishable as provided herein:
"(a) except as provided in paragraphs (b), (c) and (d) if commission of the offense prohibited by law is punishable by imprisonment for 1 year or more, the person convicted under this section shall be punished by a penalty equal to that which could be imposed if he had been convicted of committing the crime he conspired to commit and in the discretion of the court an additional penalty of a fine of $10,0000.00 may be imposed.” MCL 750.157a; MSA 28.354(1).
"Sec. 316. All murder which shall be perpetrated by means of poison, or lying in wait, or any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery, burglary, larceny of any kind, extortion or kidnapping, shall be murder of the first degree, and shall be punished by solitary confinement at hard labor in the state prison for life.” MCL 750.316; MSA 28.548.
In determining whether there is sufficient evidence to support a conviction, the Court must view the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. People v Delongchamps, 103 Mich App 151; 302 NW2d 626 (1981), People v Hampton, 407 Mich 354; 285 NW2d 284 (1979).
The evidence adduced at trial which was most favorable to the prosecution was sufficient to support the convictions.
Defendant’s husband, Clarence Boose, Sr., was shot to death on June 9, 1979. Defendant was charged with having conspired with Henry Hurt and Clifford Kerse to murder the deceased and with aiding and abetting in the murder.
In January or February of 1979, defendant asked Sheila Jones, her daughter, if Jones could find someone to kill the deceased. At that time, Jones refused. On cross-examination it was brought out that defendant had made similar requests of Jones in 1974, 1975, and 1977. In May of 1979, defendant asked Jones if Jones would find someone to kill "Ronnie”. Ronnie was the defendant’s boyfriend. Defendant told Jones she would give her $500 to find someone to kill Ronnie. Approximately two weeks later, defendant asked Jones to tell Henry Hurt that she wished to talk to him. Hurt is Jones’s cousin and had been staying with her since early May.
Henry Hurt and defendant did have a meeting approximately two weeks prior to the murder at defendant’s home at 316 Pierson Road in Flint. The next day, defendant told Jones that Hurt had agreed to kill Ronnie. Approximately one week prior to the murder, Jones took Hurt to the bus station in Flint where they picked up a friend of Hurt. He was later identified as being Clifford Kerse by Jones at a line-up held on June 13, 1979.
On several occasions during the week of the murder, Clarence Boose, Jr., saw the defendant speaking with Hurt and Kerse at her home at 316 Pierson. Three days prior to the murder, defendant asked her son if he knew where she could find an unregistered handgun.
Two or three days prior to the murder, defendant asked Jones, in the presence of Hurt and Kerse, to take Hurt and Kerse to Detroit to get some guns. Jones did so. During the trip to Detroit, Hurt showed Jones a post card on which the name of "Walli’s Motel” appeared. Defendant’s name appeared on the guest register at the same motel. This motel was located a few blocks from the defendant’s home.
From June 4, 1979, until the evening of June 8, 1979, the deceased had been out of the state with a woman by the name of Mary Tedford. The deceased had been dating Tedford since 1974. Approximately three months prior to the murder, Tedford had begun to collect rent owed the deceased from several of his tenants. After the murder, the defendant told Sergeant Ronald Ignash, an investigating officer of the Flint Police Department, that on June 8, 1979, she had gone to a lawyer’s officer in an effort to put a "lien” on some property owned by her and the deceased to "prevent a lady from collecting rent”. She stated that it did not bother her that her husband was going out with another woman but it did bother her that this woman might be getting money that belonged to defendant.
Tedford testified that at approximately 1 a.m. on the morning of the murder defendant had called Tedford’s home and asked for Tedford. Tedford told defendant that she was not at home. At approximately 6:30 p.m. that same day, defendant drove slowly past Tedford’s home and looked at the house.
On the afternoon of the killing, defendant was seen by Roderick Johnson in the parking lot of a school located near her home. He said that she was driving a brown Cadillac with a yellow vinyl top. At trial, Sergeant Robert Atkinson testified that defendant is a registered owner of a brown Cadillac with a brown vinyl top. Johnson testified that defendant was in the company of two black males, both dressed in green jump suits. Johnson later identified Clifford Kerse in a line-up held on June 13, 1979, as one of these two men. The two men got out of the car and went to a pile of leaves located nearby and each pulled out a bag that was approximately six to eight inches in length. They both returned to the car, whereupon defendant drove the car a short distance forward and dropped off the two men. She then departed.
At approximately 9:15 p.m. on June 9, 1979, Nancy Cowens, who lived next door to the defendant at 226 Pierson Road, went to the defendant’s home and asked if she could use the defendant’s telephone. Defendant was getting out of her car as Cowens approached. At the same time, Cowens saw two black men dressed in green approaching the house from the other direction. These men were later identified by Cowens at police line-ups held on June 12, 1979, and June 13, 1979, as being Henry Hurt and Clifford Kerse. Cowens testified that she followed the defendant into the house and that she was followed by the two men. Defendant then told the two men to go upstairs. Mr. Boose was not present at that time. The door through which they entered was a side door located near the kitchen. Cowens remained in the kitchen to use the telephone while the defendant went to another part of the home. Shortly thereafter, after Cowens had completed her use of the telephone, the deceased entered the home. He asked Cowens where his wife was and then went back outside. Defendant then came into the kitchen, and as she came through the doorway she leaned back toward the stairs and said, "Are you guys up there”. Cowens heard some response but could not understand it. Shortly thereafter, the deceased reappeared and was asked by the defendant to change a lightbulb in the attic. He went up to the attic and came back with a sack full of lightbulbs. He took one out and went back upstairs. Cowens then heard several shots. The deceased came running down the stairs with blood about his shoulder and said, "Nancy, call the police, somebody is trying to kill me”. He then ran out of the house.
Cowens testified that as she picked up the phone to call the police Hurt and Kerse entered the room with guns in their hands. One of them pointed a gun at her and told her to put the phone down. She did so. The two men then left the house. Defendant came into the room and asked Cowens what had happened. Cowens told her that her husband had been shot and asked defendant if she wanted Cowens to call the police. Defendant told Cowens that if she did not call the police right away the defendant would give her "a little piece of change”. Cowens walked out of the house and over to her house where she saw blood on her front porch. She then went back to the Boose house and again asked the defendant if she should call the police. Defendant again responded by telling her that she would give her "a piece of change” if she did not call the police. A few minutes later, defendant told Cowens to go down to the phone in the basement and call the police. As Cowens went to the basement to do so, defendant made several other telephone calls.
Neither Cowens nor defendant told the police of the presence of the two men. Cowens did tell the police on June 11, 1979. She testified that she did not do so earlier because she was afraid. Defendant had told Cowens that Hurt and Kerse knew that Cowens could identify them.
Narriss Washington, a cousin of Henry Hurt, testified that on the morning of June 10, 1979, Hurt and another man, whom she later identified at a police line-up held on June 13, 1979, as being Clifford Kerse, were at her apartment and threw several items of green clothing into her garbage. Those items were later retrieved by the police and identified at trial by Roderick Johnson as being the clothing he saw worn by the two men that he had seen in the school parking lot on June 9, 1979. The items were also identified at trial by Nancy Cowens as being the clothing that she saw worn by thé two men she had seen at the Boose home on the night of June 9, 1979.
Police Officer Charles Weston testified that he was called to the scene at approximately 9:55 p.m. on June 9, 1979. His investigation disclosed a trail of blood leading from the upstairs portion of the house located at 216 Pierson Road to the house located at 226 Pierson Road, where a body, later identified as Clarence Boose, Sr., was found. Dr. David Congdon, associate pathologist at Hurley Medical Center in Flint, testified that his examination of the body revealed that the victim had been shot six times.
Criminal conspiracy is a mutual understanding or agreement between two or more persons, express or implied, to do or accomplish some criminal or unlawful act. To prove conspiracy to commit murder, it is also necessary to prove that at least two persons intended to murder another. To establish such intent, there must be knowledge of the unlawful purpose of murder. People v Hintz, 69 Mich App 207, 217-218; 244 NW2d 414 (1976). In the present case there was no direct evidence concerning the agreement between the defendant and Henry Hurt and Clifford Kerse. In People v Atley, 392 Mich 298, 311; 220 NW2d 465 (1974), the Supreme Court stated:
"The gist of the offense of conspiracy lies in the unlawful agreement between two or more persons. Direct proof of agreement is not required, nor is it necessary that a formal agreement be proven. It is sufficient if the circumstances, acts, and conduct of the parties establish an agreement in fact.
"Furthermore, conspiracy may be established, and frequently is established by circumstantial evidence, and may be based on inference.” (Citations omitted.)
There was no direct evidence relating to the content of any conversation between defendant and Henry Hurt and Clifford Kerse other than the statement by defendant to Sheila Jones the day after defendant’s meeting with Hurt that Hurt had agreed to kill "Ronnie”. However, the evidence relating to the conduct of the participants could have led a rational trier of fact to find beyond a reasonable doubt that an agreement had been made to murder Clarence Boose, Sr. Defendant had numerous contacts with Hurt and Kerse. She requested her son to find an unregistered gun. In the presence of Hurt and Kerse she requested Sheila Jones to take Hurt and Kerse to get "some guns”. Hurt and Kerse did in fact accompany Jones to Detroit. On the way to Detroit, Hurt showed Jones a post card from Walli’s Motel. Defendant’s name appeared on the guest register at that same motel. Defendant told Jones two weeks prior to the murder that Hqrt had agreed to kill someone. Defendant was seen with Hurt and Kerse on the afternoon of the murder, and on the evening of the murder she directed those two men to the upstairs of her home, where the shooting actually took place.
Defendant contends that no inference of guilty participation can be drawn merely from the defendant’s association with Hurt and Kerse. The above evidence demonstrates more than mere association. It clearly supports a finding that defendant had entered into an agreement with Hurt and Kerse to murder defendant’s husband.
The evidence could also have led a rational trier of fact to conclude that the participants had the requisite specific intent to murder Clarence Boose, Sr. Jones testified that three months prior to the murder defendant had asked her to find someone to kill the deceased. On cross-examination, Jones testified that defendant had made the same request of her on at least three other occasions. Defendant’s actions as to the request for the guns, combined with her actions in directing Hurt and Kerse upstairs and in sending the victim upstairs to "change a lightbulb” and in twice telling Nancy Cowens that she would give her "change” if she did not call the police, could lead a rational trier of fact to conclude that defendant had knowledge of the unlawful purpose to murder. Hintz, supra.
Defendant next contends that the evidence was insufficient to enable a jury to find that defendant aided and abetted in the murder of her husband.
It has been held that one aids and abets another to commit a crime where the former takes conscious action to make the criminal venture succeed. People v Wright (On Remand), 99 Mich App 801; 298 NW2d 857 (1980). If the Court concludes that sufficient evidence existed to enable the jury to find the existence of conspiracy, it is clear that it was also permissible for the jury to find that defendant aided and abetted in the commission of the crime. To establish the existence of the conspiracy it was necessary for the prosecution to show, in addition to the existence of the conspiratorial agreement, the existence of the specific intent to commit murder. To prove such intent it was necessary to establish that defendant had knowledge of the criminal purpose of murder. Hintz, supra. If the jury believed that defendant had that specific intent, it could also have ration ally found that defendant’s acts of requesting Jones to drive Hurt and Kerse to Detroit to get guns, of directing Hurt and Kerse to wait upstairs, of sending the victim upstairs where she knew Hurt and Kerse awaited him, and of offering Nancy Cowens "some change” if she did not call the police, were all conscious acts of defendant to make the criminal venture succeed. Wright, supra.
Defendant contends that the jury’s finding of guilt necessarily involved a pyramiding of inferences upon inferences proscribed by Atley, supra. In her brief, the defendant has attempted to isolate each fact presented to the jury and argue that such fact could not support a particular inference. Taken in isolation, it is unlikely that any single fact could ever support the inference of an agreement necessary to find a conspiracy. It is the composite of those facts from which the jury is permitted to draw reasonable inferences relating to the missing elements. In People v Orsie, 83 Mich App 42; 268 NW2d 278 (1978), this Court held that what is actually meant by the statement that an inference cannot be based upon an inference, is that an inference cannot be based upon evidence which is uncertain or speculative or which raises merely a conjecture or possibility. The evidence upon which the inferences were drawn is not speculative. It is direct evidence which could have led a rational juror to conclude that all of the elements of these offenses were proven beyond a reasonable doubt.
Defendant next contends that where the evidence is circumstantial, it is the burden of the prosecution to negate every reasonable hypothesis consistent with the defendant’s innocence. In People v Williams, 94 Mich App 406, 416-417; 288 NW2d 638 (1979), this Court stated:
"If inferences drawn from circumstantial evidence are so compelling that the trier of fact has no reasonable doubt of defendant’s guilt, that should be sufficient basis for a guilty verdict. If circumstantial evidence does not give rise to inferences of such a compelling nature as to overcome the reasonable doubt standard, then a guilty verdict could not be justified, not because the evidence was circumstantial or because of basing inferences on inferences, but rather, because of the prosecution’s failure to meet its burden of proof. If so, it would seem to follow that if the evidence persuaded the trier of fact of a defendant’s guilt beyond a reasonable doubt the prosecution’s failure to specifically disprove an innocent hypothesis advanced by defendant would not result in the setting aside of a guilty verdict. It should be recognized that there can be hypotheses of innocence advanced by defendants that would be impossible to disprove by either direct or circumstantial evidence. To require the prosecution to do the impossible would be neither sound logic nor good law. It would appear that in order for a hypothesis of innocence to negate an otherwise supported finding of guilt the hypothesis must be of such a compelling nature that it creates a reasonable doubt on the part of the fact trier.”
The evidence presented in this case gives rise to the compelling inference that defendant did enter into an agreement with Henry Hurt and Clifford Kerse to murder her husband, that the participants had the specific intent that that agreement be carried out and that defendant did aid and abet Hurt and Kerse in the commission of the murder.
Defendant’s argument that Hurt and Kerse merely entered the residence of defendant and the deceased to meet with the deceased on some business is not supported by evidence sufficient to mandate a reasonable doubt in the mind of the trier of fact. The evidence is to the contrary, and by proving its theory beyond a reasonable doubt, the prosecution has, in effect, negated every reasonable theory of innocence.
Defendant’s final claim relating to the sufficiency of the evidence deals with the elements of premeditation and deliberation.
First-degree murder is distinguished from second-degree murder, MCL 750.317; MSA 28.549, in that the prosecution must prove that the death was the willful result of a premeditated, deliberate intent to kill. Neither premeditation nor deliberation need be established by direct evidence. The requisite state of mind can be inferred from all of the facts and circumstances. People v Hoffmeister, 394 Mich 155; 229 NW2d 305 (1975).
The factors to be considered in deciding whether there was sufficient evidence from which the jury could infer premeditation and deliberation are: (1) the previous relation of the parties; (2) the defendant’s action prior to the actual killing; (3) the circumstances of the killing itself; and (4) the defendant’s conduct after the homicide. People v Johnson, 93 Mich App 667; 287 NW2d 311 (1979).
With respect to the first factor, the evidence at trial taken in the light most favorable to the prosecution, Hampton, supra, shows that the deceased was involved in an extramarital relationship and that the woman he was dating had begun collecting rent from tenants of the deceased approximately three months prior to the murder. Defendant told a police officer after the murder that she did not mind the fact that her husband had been seeing another woman but it did bother her that the other woman was getting money which the defendant believed belonged to her. From these facts the jury could rationally infer that defendant had a motive to kill her husband.
With regard to the second factor, on several occasions prior to the murder defendant had told her daughter that she wanted to kill her husband. She had been seen in the presence of the actual killers on many occasions prior to the night of the murder. She had asked her daughter to take the killers to Detroit to "get some guns” several days prior to the murder. Finally, she was seen in the presence of the killers on the afternoon of the murder.
With regard to the third factor, defendant directed the killers to the upstairs portion of her house shortly before the murder occurred. When her husband came home, she directed him upstairs, ostensibly to replace a lightbulb. While there is no evidence to suggest that defendant actually shot her husband, it was established that both Hurt and Kerse had a gun and that the deceased was shot a total of six times.
Finally, defendant’s conduct following the murder is consistent with premeditation and deliberation. She twice offered to pay her neighbor, Nancy Cowens, some money if the neighbor agreed not to call the police.
On the basis of all this, the jury could properly have inferred premeditation and deliberation.
II. Did the trial court err in permitting the testimony of a witness who had violated the court’s sequestration order?
Prior to presentation of any evidence in the case, the court ordered the witnesses sequestered. Clarence Boose, Jr., violated that order on at least four occasions. Defendant moved that he be precluded from testifying. The court ruled that defendant could inquire into the matter on cross-examination, but did not order that the witness be precluded from testifying.
Whether to exclude a witness who has violated a sequestration order from testifying is within the trial court’s discretion. People v Dickerson, 62 Mich App 457; 233 NW2d 612 (1975).
Officer Buszek stated that the witness’s appearances in the courtroom were very brief. In any event, the testimony of this witness related primarily to events which were not the subject of any other testimony. He testified that he had seen defendant in the presence of Hurt and Kerse at defendant’s home on several occasions during the week of the murder and that he was the only person present other than those three on those occasions. He also testified that defendant had asked him if he knew where she could get an unregistered gun. No other witness testified as to these events. Consequently, even if this witness did hear any other testimony during the trial, it did not relate to matters about which he testified.
Defense counsel was given an opportunity to cross-examine the witness on this matter. His cross-examination does not reveal that defendant has been prejudiced in any way by the witness’s violation of the sequestration order.
The court did not abuse its discretion in refusing to exclude the testimony of the witness.
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Mackenzie, J.
This case requires us to determine (1) whether the sale of undivided fractional interests in (three) oil and gas leases constituted the sale of "securities” within the meaning of the Uniform Securities Act, MCL 451.501 et seq.; MSA 19.776(101) et seq., (2) if so, whether defendants’ retention of leasehold interests in the wells without contributing their proportionate share of capital comprised "commissions or other direct or indirect remuneration” on the sale such that defendants lost the exemption from registration under § 402(b)(9) of the act, MCL 451.802(b)(9); MSA 19.776(402)(b)(9), entitling plaintiffs to the remedy of rescission, or (3) whether defendants’ failure to tell plaintiffs that defendants were not contributing proportionate capital for their interests constituted a material omission of fact also entitling plaintiffs to rescission under § 410(a)(2) of the act, MCL 451.810(a)(2); MSA 19.776(410)(a)(2).
Since the sale of the oil and gas interests herein occurred in 1976, the provisions of the act then in effect will be applied. The amendment of several pertinent sections by 1978 PA 481, effective March 30, 1979, will be discussed but is not binding us to this particular case.
Following a bench trial held on February 26 and 27, 1979, Eaton Circuit Judge Hudson E. Deming found that three separate oil and gas ventures were involved herein. Judge Deming found that defendants are in the business of obtaining oil and gas leases from property owners, contacting individuals to determine if they wish to participate financially in drilling, and drilling wells on such lands. Defendants share profits and losses equally. Judge Deming further held that plaintiffs Prince and Wipperfurth, who are bridge and marine contractors, had invested money through a partnership, plaintiff D. J. K. Company, for six years and that they had previously invested in oil and gas wells. Thus, Judge Deming concluded that plaintiffs were "sophisticated and knowledgeable businessmen”.
The trial judge found that plaintiff Prince heard about defendant Sokolowski and the first of the three wells through a cousin of defendant Sokolowski. Prince discussed the matter with plaintiff Wipperfurth, and plaintiffs had phone conversations with defendant Sokolowski. The latter informed plaintiff Prince that the cost for a 4/64 leasehold working interest of 3/4 of all oil and gas from the Gullett enterprise would be $14,400. The parties entered into a written joint venture agreement on June 8, 1976, whereby plaintiffs paid defendants $14,400 for the agreed participation in the Gullett Well. Gullett proved to be a dry hole.
Subsequent to the failure of the Gullett venture, the parties met and discussed participation in the Kent Well to be drilled later in the summer. The trial judge found that plaintiffs Prince and Wipperfurth, acting separately, invested a total of $7,200 for 2/64 leasehold working interest of 3/4 of all oil and gas from the Kent Well, and $7,200 for 2/64 leasehold working interest of 3/4 of all oil and gas from the Southwick Well. Each well also proved to be a dry hole.
The court further found that plaintiffs knew their money would be gone if the ventures proved to be dry holes. The court accepted defendant Sokolowski’s testimony that he did not represent to plaintiffs that the lease cost was $10,000 and defendant Fortuna’s testimony of the work required in obtaining the various leases.
The court held that none of the transactions had been registered with the Michigan Corporation and Securities Bureau, that defendants had no outside salesmen or promoters nor any written sales material, and that all the investors contacted actually invested in the ventures and were residents of the State of Michigan. Regarding the amount invested in each well and the number of investors, Judge Deming held:
"In the Gullett Well, there were 11 investors who purchased 18/64 leasehold working interests in 6/8 of the oil and gas for a total of $63,900.00. The total of the itemized costs of the defendants was $64,486.40.
"In the Kent Well, there were 13 investors who purchased 23/64 leasehold working interests in 6/8 of the oil and gas for a total of $82,800.00. The total of the itemized costs of the defendants was $53,384.55.
"In the Southwick Well, there were 5 investors who purchased 9/64 leasehold working interests in 6/8 of the oil and gas for a total of $32,400.00. The total of the itemized costs of the defendants was $72,031.56.”
The trial judge found that defendants’ use of ten percent of the cost of drilling for administrative overhead and another ten percent for supervision and maintenance was reasonable.
Judge Deming also held that defendants had perpetrated no fraud upon plaintiffs, that defendants had performed their end of the contract by drilling the wells in the Niagaran formation, and thus, that defendants had not breached the contracts. The court found that the parties had not been engaged in a joint venture.
With respect to the alleged securities laws violations, Judge Deming concluded (1) that defendants had sold securities to plaintiffs in each of the three wells, (2) that defendants had not made any material misstatements (or omissions) of fact in selling the securities, (3) that the Gullett and Southwick ventures fell within the § 402(b)(9) exemption since neither the leasehold working interests retained by defendants nor the reimbursement for expenses constituted commissions or direct or indirect remuneration for soliciting the sales, and (4) that the Kent venture did not fall within § 402(b)(9) because defendants received remuneration of $29,415.45 (the difference between the amount investors contributed and the cost to drill the well) and that therefore plaintiffs were entitled to judgment of $7,200 plus interest regarding this count. Plaintiffs appeal, and defendants cross appeal.
Under MCL 451.701; MSA 19.776(301), "[i]t is unlawful for any person to offer or sell any security in this state unless (1) it is registered under this act or (2) the security or transaction is exempted under section 402”. Thus, the threshold question is whether defendants sold plaintiffs "securities” within the meaning of the act.
At the time the parties entered into the three transactions herein, "security” was defined in MCL 451.801(1); MSA 19.776(401)0) as follows:
" 'Security’ means any note; stock; treasury stock; bond; debenture; evidence of indebtedness; certificate of interest or participation in any profit-sharing agreement; collateral-trust certificate; preorganization certificate or subscription; transferable share; investment contract; voting-trust certificate; certificate of deposit for a security; certificate of interest or participation in an oil, gas or mining title or lease or in payments out of production under such a title or lease; or, in general, any interest or instrument commonly known as a 'security’, or any certificate of interest or participation in, temporary or interim certificate of interest or participa tion in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing. 'Security’ does not include any insurance or endowment policy or annuity contract under which an insurance company promises to pay money either in a lump sum or periodically for life or some other specified period.”
The following language was added to the definition of "security” by the most recent amendment, 1978 PA 481, effective March 30, 1979:
" 'Security’ includes any contractual or quasi contractual arrangement pursuant to which: (1) a person furnishes capital, other than services, to an issuer; (2) a portion of that capital is subjected to the risks of the issuer’s enterprise; (3) the furnishing of that capital is induced by the representation of an issuer, promoter, or their affiliates which give rise to a reasonable understanding that a valuable tangible benefit will accrue to the person furnishing the capital as a result of the operation of the enterprise; (4) the person furnishing the capital does not intend to be actively involved in the management of the enterprise in a meaningful way; and (5) a promoter or its affiliates anticipate, at the time the capital is furnished, that financial gain may be realized as a result thereof. 'Security’ does not include an insurance or endowment policy or annuity contract under which an insurance company promises to pay money either in a lump sum or periodically for life or some other specified period or a commodity contract. The administrator may exclude by rule or by order other transactions or agreements from the definition of the word 'security’.”
Defendants had obtained drilling rights and leasehold interests entitling them to a fraction (3/ 4) of the oil and gas produced on the land in question. The joint venture agreements purported to convey to plaintiffs an undivided fractional "leasehold working interest” in the drilling sites and 3/4 of the oil and gas produced. Defendants argue that plaintiffs only bargained for the actual drilling of the wells in the Niagaran formation. Admittedly, the joint venture agreements provided that if defendants drilled the wells according to the specifications and the wells failed to produce oil or gas, plaintiffs would retain no further interest in the property. However, the contracts also provided that if oil and gas were found plaintiffs owned a fractional interest in the minerals, providing plaintiffs continued to share costs of production. These circumstances support the trial court’s finding that plaintiffs did not receive a property interest but an investment contract in the venture initiated by defendants.
It is not necessary to utilize the new language in the definition of "security” regarding "risk capital” to find that defendants sold securities to plaintiffs.
In People v Breckenridge, 81 Mich App 6, 14; 263 NW2d 922 (1978), the Court recognized the general principle that:
"Whether or not a particular transaction comes within the purview of a state securities law such as the Uniform Securities Act depends on the language of the statute and the real nature of the transaction. State v Hodge, 204 Kan 98; 460 P2d 596 (1969). The court must ascertain the substance of the transaction and the real intent and purpose of the parties, looking beyond labels and devices. People v Blankenship, 305 Mich 79; 8 NW2d 919 (1943).”
This Court in Breckenridge further noted that the classification of a transaction as the sale of a security depends on the economic realities underlying the particular transaction:
"The salient feature of securities sales under the Uniform Securities Act is the public solicitation of venture capital to be used in a business enterprise. Subjection of the investor’s money to the risks of an enterprise over which she or he has no managerial control is the basic economic reality of a security transaction as defined in the context of the Uniform Securities Act. See State of Hawaii by its Comm’r of Securities v Hawaii Market Center, Inc, 52 Hawaii 642; 485 P2d 105 (1971).” Id., 15.
In Parvin v Davis Oil Co, 524 F2d 112, 115 (CA 9, 1975), the Ninth Circuit Court of Appeals employed the following criteria for determining whether the sale of a fractional interest in oil and gas exploration constituted a security:
"This circuit has not determined under what circumstances such a fractional interest is a security under federal law. Those other circuits which have considered the issue have held such an interest to be a security when the seller or a third party will conduct drilling operations on the land subject to the leases and it is from these operations that the buyer expects to derive his profit. Nor-Tex Agencies, Inc v Jones, 482 F2d 1093 (CA 5, 1973), Gilbert v Nixon, 529 F2d 348 (CA 10, 1970).”
Parvin further held that the interests sold satisfied the definition of an "investment contract” as "[a]n interest in an enterprise * * * where 'the efforts made by those other than the investor are the undeniably significant ones, those essential managerial efforts which effect the success or failure of the enterprise’ ”. Id., 115-116.
In Blankenship, supra, the Supreme Court of Michigan held that an undivided fractional interest in oil and gas was a security within the meaning of the statute then in effect. The Court reasoned that the interest conveyed to the grantee was a purely speculative investment since (1) the grantee would be entitled to a share of the royalties if, as, and when the leases were developed and oil and gas were produced, and (2) the grantee was not entitled under the lease to future rentals, thus negativing the contention that the deeds conveyed an interest in land. The Court in Blankenship, supra, 87, quoted the Rhode Island Supreme Court in State v Pullen, 58 RI 294; 192 A 473 (1937), as follows:
" 'It is difficult to read these documents and not come to the conclusion that, notwithstanding the legal verbiage in which the transaction is clothed by such documents, they are, nevertheless, securities evidencing an investment by the purchaser in a share of oil produced and brought to the surface by the lessee of the land described therein. * * * Really and actually behind the form of a conveyance of an interest in land set out in these documents is an investment contract, and it is peculiarly the kind of an investment contract which lends itself readily to the perpetuation of the evil which the securities act is designed to eradicate.”
In summary, we conclude, as did the Supreme Court of Michigan in Blankenship, that the circumstances surrounding the joint venture agreements herein belie the contention that they conveyed merely a property interest or that plaintiffs bargained only for defendants’ performance in drilling said wells. Rather, we hold that the purpose of executing the documents was to secure plaintiffs’ investment in a risky venture, exactly the type which the Uniform Securities Act was designed to regulate. Sale of the fractional interest in the venture constituted the sale of "securities” within the meaning of the act.
Next, we must consider whether the sale of securities in any or all of the three ventures was exempt from registration under § 402(b)(9) which then provided:
"(9) Any transaction pursuant to an offer directed by the offeror to not more than 15 persons, other than those designated in paragraph (8), in this state during any period of 12 consecutive months, whether or not the offeror or any of the offerees is then present in this state, if:
"(A) The seller reasonably believes that all the buyers in this state, other than those designated in paragraph (8), are purchasing for investment; and
"(B) No commission or other remuneration is paid or given directly or indirectly for soliciting any prospective buyer in this state, other than those designated in paragraph (8); but the administrator may by rule or order, as to any security or transaction or any type of security or transaction, withdraw or further condition this exemption, or increase or decrease the number of offerees permitted, or waive the conditions in clauses (A) and (B) with or without the substitution of a limitation on remuneration.” MCL 451.802(b)(9); MSA 19.776(402)(b)(9).
The availability of the exemption in the instant factual situation hinges on whether defendants’ retention of leasehold working interests in the oil and gas wells constituted the receipt of a "commission or other remuneration * * * paid or given directly or indirectly for soliciting any prospective buyer”. We hold that the leasehold interests were, in fact, other remuneration from the sales.
From the testimony and exhibits at trial, it can readily be deduced that defendants received the bulk of the leasehold working interest in each venture with low or no financial investment. In the Kent venture, defendants received a 41/64 leasehold working interest of 3/4 of all gas and oil without any financial expenditures from their own pockets. Moreover, they received an excess of $28,-958.45 from investors’ contributions over the cost of drilling. In the Gullett venture, defendants kept a 46/64 leasehold working interest of 3/4 of all oil and gas by contributing only $584.40 to the cost of drilling as compared to $63,900 contributed by other investors. In the Southwick venture, defendants retained a 55/64 leasehold working interest of 3/4 of all oil and gas for an investment of $39,631.56; other investors contributed $32,400 for only a 9/64 leasehold working interest in this venture. In each instance, defendants paid much less per share than the outside investors. Even in the Southwick venture, where defendants claim to have lost money, they received each share (1/64) for $720.58 as compared to $3,600 per share paid by plaintiffs and outside investors.
We hold that the receipt of securities by promoters for prices grossly below those paid by outside investors amounts to other remuneration. The effect of the interests retained by defendants was to dilute the equity paid by outside investors and to mislead plaintiffs and other investors into believing that defendants were contributing a proportionate share of capital for the interests retained. This practice was one of the evils the securities laws were enacted to thwart by regulating the percentage of an issue which may be retained by promoters, insurers, etc., and by disclosing this information to investors.
Clearly, under the statute, once plaintiffs estab lished a prima facie case, defendants had the burden of proving the availability of the exemption. Section 402(d), MCL 451.802(d); MSA 19.776(402)(d), now MCL 451.802(c); MSA 19.776(402)(c). Moreover, statutory exemptions, including those provided by the Uniform Securities Act, are to be afforded an expansive construction. Rzepka v Farm Estates, Inc, 83 Mich App 702, 707; 269 NW2d 270 (1978).
It is noteworthy that the 1978 amendment to the act added the following definition of commission, consistent with our holding:
"(r) 'Commission’ means any payment in cash, securities, or goods for offering or selling, promise, or commitment to provide payment in the future for offering or selling, or any other similar payment. Commission does not include a real estate commission commensurate with fees paid in the area for similar services, paid to licensed real estate brokers solely for real estate services which have been rendered, or payment by a person to a lawyer or accountant in connection with advice or recommendations made by a lawyer or accountant to the client with whom the lawyer or accountant has an established professional relationship, if disclosure of the payment and the interest of the lawyer or accountant in the transaction or in the issuer or any affiliate of the issuer, is made in writing to the client before the sale. Officers, directors, and partners of an issuer or purchaser, or persons occupying a similar status shall not be considered a finder if their contact was purely incidental and their compensation was not directly or indirectly tied to or conditioned upon involvement in securities or commodities solicitation or purchase.” MCL 451.801(r); MSA 19.776(401)(r).
We also find that defendants’ revelation to plaintiffs that defendants had retained a certain percentage of the various ventures without informing plaintiffs that defendants had not contributed proportionate capital constituted a material omission of fact under §101(2), MCL 451.501(2); MSA 19.776(101)(2), and § 410(a) cited supra. A material misstatement or omission of fact has been defined as one which a reasonable investor might have considered important to his investment decision. Mills v Electric Auto-Lite Co, 396 US 375, 384; 90 S Ct 616; 24 L Ed 2d 593 (1970), People v Cook, 89 Mich App 72, 83; 279 NW2d 579 (1979). Certainly, the promoter’s representation to a prospective purchaser that he had retained a certain percentage of a venture might tend to mislead the investor into believing that the investment was sound because the promoter himself invested heavily in it. A reasonably prudent investor would want to know that the promoter in such a situation received his stock without financial investment or at grossly lower prices.
We find no merit in defendants’ argument that plaintiffs did not tender their securities so as to be entitled to rescission. Merely because the securities plaintiffs tendered are now worthless does not affect the validity of the tender. See Lesher v Bonner, 269 Mich 124; 256 NW 827 (1934).
Due to our finding that defendants were not entitled to the exemption under § 402(b)(9), plaintiffs are entitled to rescind the entire transaction. Judgment may be entered in favor of plaintiffs for $7,200 plus interest from July, 1976, in the South-wick venture and for $14,400 plus interest from July, 1976, in the Gullett venture. The trial court’s award in favor of plaintiffs of $7,200 plus interest with respect to the Kent venture is affirmed. Plaintiffs are also entitled to costs and reasonable attorney fees under § 410(a). Since there are no proofs on the amount of costs or reasonable attorneys’ fees, the matter is remanded to the trial court for an evidentiary hearing and determination of that issue. We retain no jurisdiction.
Reversed in part and remanded.
Section 402(b)(9) was totally rewritten by the 1978 amendments. It should be noted, however, that the revised exemption retains the requirement that no commission be paid directly or indirectly for soliciting any prospective purchaser, "except to a broker-dealer registered pursuant to this act who is not affiliated with the issuer or its affiliates” and whose commission is reflected on the books and disclosed in writing to each prospective purchaser. MCL 451.802(b)(9)(C); MSA 19.776(402)(b)(9)(C). | [
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Per Curiam;.
Defendant was charged with knowingly or intentionally possessing a controlled substance (heroin), MCL 333.7403(2)(a); MSA 14.15(7403)(2)(a). Following preliminary examination, defendant was bound over for trial on that charge, the magistrate rejecting defendant’s claim regarding an illegal stop by police. Subsequently, defendant filed a motion to suppress evidence seized by police at the time he was stopped. The motion was heard by the trial court and, following argument of counsel, the trial court granted defendant’s motion and dismissed the charge against him.
The people argue on appeal that the trial court erred in ruling that the stop of defendant’s car was improper and that the seizure of evidence pursuant to the stop must be suppressed.
The trial court ruled on defendant’s motion as follows:
"The Court: That might be a good case for Michigan Court of Appeals to make a decision on. I frankly believe that the involuntary abandonment is akin to illegal search and seizure. That’s the court’s belief. I feel that that is a better view of law that’s following the State of New York.
"As I say, where the police chase, or attempt to arrest a person have no basis and factor doing so in law, or no probable cause to make the arrest, the person seized, the place, abandoned property is not voluntary; it’s involuntary.
"Of course, the state held that those kind of searches or seizures rather are unconstitutional. I believe that’s a better view of the law. I’ll give the prosecuting attorney a chance to appeal it. I grant your motion. Dismissed.”
We review the merits of the trial court’s ruling on the motion to suppress the evidence to determine whether it was clearly erroneous. People v White, 84 Mich App 351; 269 NW2d 598 (1978), People v Robertson, 81 Mich App 446; 265 NW2d 365 (1978).
The standard for determining whether an investigatory stop is valid is well documented. In People v Martin, 99 Mich App 570, 574-576; 297 NW2d 718 (1980), the dimensions of such an inquiry, with respect to the stop of an automobile, were set out in detail by the Court:
"On appeal, defendant contends that the initial stop of his vehicle violated his right to be free of unreasonable searches and seizures as guaranteed by the Fourth Amendment to the United States Constitution. If every such stop had to be predicated upon probable cause, we would agree with defendant and reverse his conviction. However, the Supreme Court in Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968), held that when an officer observes unusual conduct which leads him to reasonably conclude, in light of his experience, that criminal activity may be taking place, he may make an initial investigatory stop of the suspect. The Supreme Court in Adams v Williams, 407 US 143, 145; 92 S Ct 1921; 32 L Ed 2d 612 (1972), expanded upon the principle that an investigatory stop may take place with less than probable cause. The Supreme Court stated:
" 'The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response.’
"The requirements for an investigatory stop of an automobile were outlined by Michigan’s Supreme Court in People v Whalen, 390 Mich 672, 682; 213 NW2d 116 (1973). The Supreme Court adopted the following four rules:
" '1. Reasonableness is the test that is to be applied for both the stop of, and the search of moving motor vehicles.
" '2. Said reasonableness will be determined from the facts and circumstances of each case.
" '3. Fewer foundation facts are necessary to support a finding of reasonableness when moving vehicles are involved, than if a house or a home were involved.
" '4. A stop of a motor vehicle for investigatory purposes may be based upon fewer facts than those necessary to support a finding of reasonableness where both a stop and a search is conducted by the police.’
"The rules adopted by the Supreme Court must, of their nature, be applied on a case-by-case basis. People v Lillis, 64 Mich App 64; 235 NW2d 65 (1975). Reasonableness of the stop is judged on an objective standard which hinges upon whether specific, articulable facts, together with rational inferences from those facts, reasonably warrant the stop. Lillis, supra, People v Hunter, 72 Mich App 191; 249 NW2d 351 (1976).”
Simply put, the question is whether the stop of defendant’s car was valid under these standards. In Martin, supra, 576-577, the Court carefully reviewed a number of automobile stop cases. The nub of these decisions is that a stop may be made where, on the basis of specific, articulable facts, the officers involved have a reasonable suspicion of the possibility of criminal activity, such that they may stop an individual to maintain briefly the status quo, to determine a person’s identity, or to obtain information on crimes. Also, see People v Hunter, 72 Mich App 191, 199; 249 NW2d 351 (1976), People v Grimmett, 97 Mich App 212, 215; 293 NW2d 768 (1980).
In the case at bar, the trial court relied upon the preliminary examination transcript in holding that the stop was unreasonable. There were two police officers in the unmarked car which stopped defendant. As they were getting out of their car, they observed a vial fly from the window. Defendant was the only person in the car. They arrested defendant and picked up the vial which contained heroin.
One officer testified as follows concerning the stop of defendant’s vehicle:
"My partner and I were on surveillance and I believe the address was 6009 Copeland. We had instructions from Sergeant Michelak to stop any car that exited or left that dwelling or any person as an undercover officer purchased narcotics in the abode at that address and the defendant exited the house.
"An undercover officer was involved in a narcotics purchase at that address and our purposes was to try to retrieve any secret service funds or anything like that leaving the premises.”
The second officer offered the following facts as justification for the stop:
"At the time my partner and myself, Richard Olejnik, we were positioned outside the dwelling. At that time I was informed by my supervisor and sergeant, Robert Michelak, I was outside the vehicle at the time and I had a prep radio, that they were in the process of executing a narcotics search warrant for that dwelling and they were approximately three blocks away. At this time they told us that there was a possibility that the dealer that had sold the under cover [sic] officer the heroin would be leaving the dwelling and he ordered us to stop any persons leaving that dwelling.”
He further stated that he was informed that the narcotics purchase had occurred only minutes earlier.
The issue is close. In People v Talley, 410 Mich 378; 301 NW2d 809 (1981), the Supreme Court specifically disapproved of the practice of relying solely on the preliminary examination transcript to conduct suppression hearings in the trial court. While the foregoing mandate in Talley was not made retroactive, the Court did discuss the scope of the trial court’s review of an examining magistrate’s decision thoroughly:
"In reviewing the decision of a magistrate to bind over an accused person, the trial court may not properly substitute its judgment for that of the magistrate, but may reverse a magistrate’s decision only if it appears on the record that there has been an abuse of discretion. Genesee Prosecutor v Genesee Circuit Judge, 391 Mich 115, 121; 215 NW2d 145 (1974); People v Dellabonda, 265 Mich 486, 491; 251 NW 594 (1934). In Dellabonda, this Court stated:
" 'Primarily the question of probable cause is for the consideration of and determination by the examining magistrate. This Court may not agree with the findings of such magistrate but it has no right to substitute its judgment for his except in case of a clear abuse of discretion.’ ” Id., 385-386.
We conclude that, in the instant case, the findings of the examining magistrate were not so erroneous as to constitute an abuse of discretion. There having been no further facts developed at the suppression hearing before the trial judge, we find that the trial court improperly substituted its judgment for that of the examining magistrate.
Reversed and remanded for trial. | [
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Allen, J.
This is the second of two identical actions brought by Patrick and Michael Eyde against the Charter Township of Lansing, the Drainage Board for the Remy-Chandler Inter-county Drain and the Augmented Drainage Board for the Remy-Chandler Intercounty Drain. On February 15, 1979, the Eydes, property owners in the Township of Lansing, filed a two-count complaint against the above noted township and boards in the circuit court for Ingham County, and, on February 21, 1979, they filed an identical two-count petition in the Michigan Tax Tribunal. The circuit court suit eventually became Docket No. 48319 in this Court and the Tax Tribunal action, which is the instant appeal, became Docket No. 52221.
Count I of both the complaint and the petition alleged numerous defects in the proceedings taken under § 536 of the Drain Code, MCL 280.536; MSA 11.1536, by the two drainage boards and further alleged that § 536 of the Drain Code was unconstitutional. None of the allegations contained in Count I were directed against the Township of Lansing. Count II, which was directed against the township, reiterated all of Count I and alleged that the special assessment levied by the township was invalid by reason of procedural irregularities, gerrymandering, and factual errors and further alleged that § 539 of the Drain Code, MCL 280.539; MSA 11.1539, under authority of which the township levied the assessment, was unconstitutional.
In December 1979, the circuit court for Ingham County granted summary judgment in No. 48319 in favor of the township on Count I on grounds that Count I claims lay against the drainage boards, and granted accelerated judgment on Count II on grounds that jurisdiction as to Count II claims lay with the Tax Tribunal and not in the circuit court. On appeal, this Court upheld the determinations of the circuit court. Eyde v Lansing Twp, 105 Mich App 370, 379; 306 NW2d 797 (1981). The drainage boards did not file motions testing the court’s jurisdiction on Count I claims and thus, the Eydes’ action against the boards is still pending in circuit court.
On February 21, 1980, the Tax Tribunal sua sponte dismissed the Eydes’ petition in No. 52221 against the drainage boards, holding that the Eydes did not file their appeal timely against the drainage boards, that to add the drainage district as a party "at this time would also be untimely”, and that the Eydes lacked standing to challenge the actions of the boards "since petitioners are not participants to the proceedings specified in [MCL 280.511 et seq.; MSA 11.1511 et seq.]”. The Tax Tribunal did not dismiss the Eydes’ action against the township and thus the Eydes’ action against the township is still pending before the Tax Tribunal.
For further facts, see this Court’s opinion in Eyde v Lansing Twp, supra.
The basic issue raised on appeal is whether the Tax Tribunal was without jurisdiction to hear the Eydes’ claims under Count I against the drainage boards. The Eydes’ argue that there must be one forum where all claims regarding drain assessment matters can be determined. The boards respond that claims filed against municipal units of government under the Drain Code of 1956 are not assessments "under property tax laws” and thus the Tax Tribunal is without jurisdiction to hear such claims.
In resolving the question raised above, we are reminded of Judge Louis McGregor’s opening statement in Ray v Mason County Drain Comm’r, 48 Mich App 559, 560; 210 NW2d 810 (1973), vacated 393 Mich 294; 224 NW2d 883 (1975).
"At the center of this dispute is the Drain Code of 1956, MCLA 280.1 et seq.; MSA 11.1001 et seq., an exceedingly complex statute, the provisions of which apparently are known by few in the profession and understood by far fewer.” Ray, supra, 560. (Emphasis supplied.)
Section 31 of the Tax Tribunal Act, MCL 205.731; MSA 7.650(31), states in pertinent part:
"The Tribunal’s exclusive and original jurisdiction shall be:
"(a) A proceeding for direct review of a final decision, finding, ruling, determination, or order of an agency relating to assessment, valuation, rates, special assessments, allocation, or equalization, under property tax laws.
"(b) A proceeding for refund or redetermination of tax under the property tax laws.” (Emphasis supplied.)
The phrase "under property tax laws” has not been interpreted in Michigan appellate decisions. In interpreting statutes, every word should be given meaning and no word should be treated as surplusage if at all possible. Stowers v Wolodzko, 386 Mich 119; 191 NW2d 355 (1971). When certain things are specified in a law, the intention to exclude all others from its operation may be inferred. Wolverine Steel Co v Detroit, 45 Mich App 671; 207 NW2d 194 (1973). This Court must assume that the Legislature meant something by limiting review of decisions concerning special assessments to decisions relating to special assessments "under property tax laws”. The final order of determination of need made by the augmented board was not a "special assessment” made pursuant to property tax laws. That determination was made pursuant to § 519 of the Drain Code, MCL 280.519; MSA 11.1519, and is no more related to property tax laws than any other local government decision to spend. While the apportionment of costs against municipal corporations is termed a "special assessment” in the Drain Code, MCL 280.526; MSA 11.1526, it is not a special assessment "under property tax laws”. It differs from a real property type assessment in that the "assessment” is not on property but is on the public corporation.
The public corporation is free to meet the levy in any legal way it chooses. MCL 280.526; MSA 11.1526. The public corporation — which in this instance is the township — could pay the assessment out of any funds available to the corporation —sales tax funds, general funds, ad valorem taxes, special assessments, or any combination thereof. Unlike a property assessment made under the General Property Tax Act, the assessment under the Drain Code is not a lien upon the township’s lands. No lien attaches since no property is assessed. We therefore conclude that the Eydes’ dispute with the drainage boards does not come within the language of the Tax Tribunal’s statutory grant of exclusive jurisdiction, because the Eydes do not seek review of a decision relating to special assessments under property tax laws. _
Lending support to our determination that final orders of a drainage board are reviewable in the circuit court rather than in the Tax Tribunal is §536 of the Drain Code, MCL 280.536; MSA 11.1536. That section reads:
"Neither the final order of determination nor the final order of apportionment shall be subject to attack in any court except by proceedings in certiorari brought within 20 days after the filing of such order in the office of the secretary of the board issuing the same. If no such proceeding shall be brought within the time above prescribed, the drain shall be deemed to have been legally established and the legality of the drain and the assessments therefor shall not thereafter be questioned in any suit at law or in equity.” (Emphasis supplied.)
Review of Tax Tribunal decisions is by trial de novo and not by certiorari. MCL 205.735; MSA 7.650(35). As was stated by the Supreme Court in Toledo, Saginaw & Muskegon R Co v Shafer, 190 Mich 89, 91; 155 NW 712 (1916):
"An examination of the drain law clearly discloses that it was the intention of the legislature to have all matters pertaining to the locating and constructing of a drain, in the absence of fraud, tried out, determined, and forever settled in the direct proceedings to establish the drain or on certiorari, as provided for in the statute.”
The Supreme Court has also stated that the purpose of the statute limiting review to certiorari within 20 days "undoubtedly is to give an opportunity to have a speedy hearing upon any question of jurisdiction or any question of irregularity”. Strack v Miller, 134 Mich 311, 313; 96 NW 452 (1903). The Court has also stated that under the circumstances, certiorari "provides an adequate remedy for any person aggrieved by the proceedings to establish a drain, and protect [sic] the public and its officers against the delay which might ensue if the proceedings could be otherwise attacked”. Auditor General v Bolt, 147 Mich 283, 287; 111 NW 74 (1907). Clearly, Tax Tribunal procedures are not designed to provide the type of review needed for these drain decisions.
A further reason for leaving jurisdiction over Drain Code proceedings with the circuit court is that most drains, including the drain in the instant case, are funded through the issuance of bonds. Once it is established that a drain is necessary to the public health, it is essential that it be financed and constructed, as quickly as possible. To that end the Legislature purposely adopted the expedited proceedings by way of certiorari with a 20-day appeal period. Turning jurisdiction over to the Tax Tribunal would defeat legislative intent and delay construction.
We recognize that there is merit in the Eydes’ claim that it is preferable to have one forum in which the claims against the township and the claims against the drainage boards can be resolved. Obviously it is cumbersome and awkward to have jurisdiction in the circuit court over a portion of drain projects and jurisdiction in the Tax Tribunal over the remainder. Yet in view of the explicit statutory provisions described above and the clear distinction between an assessment against property and an assessment on a public body (rather than on the public body’s lands), and because we are reluctant to interfere with estab lished bonding procedures, we conclude that the remedy lies with the Legislature rather than with this Court.
Having determined that the Tax Tribunal did not err in holding it was without jurisdiction, it is technically unnecessary to pass upon the Eydes’ claim that §536, MCL 280.536; MSA 11.1536, is unconstitutional. Nevertheless, we believe the matter should be decided now. The Eydes argue that § 536 is constitutionally infirm because § 519, MCL 280.519; MSA 11.1519, only requires that personal notice be given the public corporation — in this instance the township and § 521, MCL 280.521; MSA 11.1521, only requires publication in a newspaper of general circulation. The Eydes contend that as property owners who would be assessed by the township they are entitled to reasonable notice of the pending project and that the. published notice in county newspapers did not reasonably inform property owners of the drainage boards’ actions.
A similar attack on the sufficiency of the notice provisions of the Michigan Drain Code was made and rejected in Fair Drain Taxation, Inc v St Clair Shores, 219 F Supp 646, 649-650 (ED Mich, 1963), aff'd 375 US 258; 84 S Ct 361; 11 L Ed 2d 311 (1963). That case involved the constitutional validity of § 467 and § 469 of the Code. MCL 280.467; MSA 11.1467, MCL 280.468; MSA 11.1468. The only difference between §§ 467 and 469 and §§ 517 and 519 is that the former two sections concern intracounty drains and the latter two sections concern intercounty drains. The court held that personal notice was not required.
"Plaintiffs further contend that the notice provisions of sections 467 and 469 violate both the state and the federal constitutions. It is important to recognize that the final orders of determination and apportionment bind the public corporations involved, which must receive notice by registered mail under the statute. Notice by publication is also provided, but plaintiffs contend that they are entitled, as the class of people which may ultimately bear the burden of paying for the drain, to more effective notice than that of publication. But as such a class, plaintiffs are affected only indirectly and to the same degree as all other taxpayers in the preliminary stages of Chapter 20 proceedings which culminate in the final orders of determination and apportionment. Not until the proceedings reach the stage where it becomes necessary to decide what proportion of the cost of the proposed improvement shall be assessed to the particular parcel of land which each plaintiff owns, must opportunity be given to them as owners to be heard upon that question (see Voight v Detroit, 184 US 115; 22 S Ct 337; 46 L Ed 459 [1902]), and Michigan law affords opportunity to question such direct assessment on their property, upon proper notice and at an adequate hearing. See also Chicago etc R R v Risty, 276 US 567; 48 S Ct 396; 72 L Ed 703 [1928]; Embree v Kansas City Road Dist, 240 US 242; 36 S Ct 317; 60 L Ed 624 [1916]; Soliah v Heskin, 222 US 522; 32 S Ct 103; 56 L Ed 294 [1912]; Londoner v Denver, 210 US 373; 28 S Ct 708; 52 L Ed 1103 [1908]; Goodrich v Detroit, 184 US 432; 22 S Ct 397; 46 L Ed 627 [1902], We hold, therefore, that the notice provisions contained in sections 467 and 469 of Chapter 20 are constitutional.”
Michigan courts have reached similar conclusions. The Michigan Supreme Court has stated that certiorari under the circumstances "provides an adequate remedy for any person aggrieved by the proceedings to establish a drain, and protect [sic] the public and its officers against the expense and delay which might ensue if the proceedings could be otherwise attacked”. Auditor General v Bolt, supra, 287. This Court has stated that "[e]very one affected by a drain is notified of the date and place of the determination board’s meeting”. Bartnicki v Wayne County Drain Comm’r, 18 Mich App 200, 204; 170 NW2d 856 (1969). The statute considered in Bartnicki did not include provisions for personal notice to property owners.
In the instant case, when the decision was made to assess a certain portion of the cost against property owners in the township, the Eydes became directly affected. At that point they were given personal notice by the township. Prior to that time, the Eydes were only indirectly affected. We find the notice requirements in §§ 519 and 521 constitutionally valid. The Eydes’ reliance on Alan v Wayne County, 388 Mich 210; 200 NW2d 628 (1972), is misplaced. That case did not hold that personal notice rather than notice by publication was required. Instead, it held that the content of the notice was inherently misleading. Accordingly, we hold that § 536 of the Drain Code of 1956 does not violate the Eydes’ right of due process under the Michigan Constitution.
Affirmed, no costs, a question of public interest being involved.
R. B. Burns, P.J., concurs in the result only.
"In our opinion, jurisdiction of the questions raised as to defendant township lay with the Tax Tribunal and not with the circuit court.”
In our opinion in Eyde v Lansing Twp, supra, we held that the Tax Tribunal had jurisdiction over the Eydes’ dispute with the township. We recognize that the Drain Code, MCL 280.263; MSA 11.1263, authorizes this assessment; such an assessment is, however, in the nature of a property tax as it is a burden running with the land and is enforceable by a tax lien and tax sale. We believe the Tax Tribunal’s jurisdiction over disputes arising "under property tax laws” is not limited to disputes under the General Property Tax Act, but extends to any tax on real property.
We note, however, that the Eydes still have an action pending in circuit court against the drainage boards challenging the proceedings before the boards and still have an action pending in the Tax Tribunal against the township challenging the special assessment levied against their property by the township. | [
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Per Curiam.
Following his sentence of life imprisonment, defendant appeals by right from his jury conviction of two counts of first-degree criminal sexual conduct, contrary to MCL 750.520b(l)(f); MSA 28.788(2)(l)(f). The defense presented at the trial of this cause was that of insanity. In its instructions to the jury, the trial court, over defense counsel’s objection, gave the dispositional instruction contained in CJI 7:8:08 which explains the disposition to be made of a defendant found not guilty by reason of insanity. It is this instruction which forms the basis for the first issue raised on appeal.
While there has been some support for defendant’s position that the holding in People v Cole, 382 Mich 695; 172 NW2d 354 (1969), should no longer be followed, the Cole rationale remains the rule in Michigan and has been followed in People v Tenbrink, 93 Mich App 326; 287 NW2d 223 (1979), lv den 408 Mich 945 (1980), People v Thomas, 96 Mich App 210; 292 NW2d 523 (1980), and People v Rone (On Remand), 101 Mich App 811; 300 NW2d 705 (1980). Although none of these cases has specifically held that the court may so instruct the jury over an objection by defense counsel, it is implicit in a fair reading of those decisions that a trial judge has independent authority in that regard. Accordingly, we find no error requiring reversal in the trial court’s instruction in this regard.
As to the remaining three issues raised on appeal, we find no reversible error.
Defendant’s convictions are affirmed.
See People v Szczytko, 390 Mich 278; 212 NW2d 211 (1973), committee comment to CJI 7:8:08, and People v Rone (On Remand), 101 Mich App 811, 828; 300 NW2d 705 (1980). | [
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J. L. Banks, J.
Defendant was charged with possession of a "billy” in violation of MCL 750.224(1); MSA 28.421(1). In a jury trial, he was found guilty as charged and sentenced to serve from two to five years imprisonment. We hold that the statute, as applied to a "J. T. Fisherman’s Quality Handy Fish Billy”, is unconstitutionally overbroad and vacate defendant’s conviction.
Defendant was stopped early in the morning by Wayne County Sheriffs deputies after a traffic infraction. When officers observed a club plainly visible in the backseat of defendant’s automobile, defendant was arrested. The object in question is carved or stamped with the inscription "J. T. Fisherman’s Quality Handy Fish Billy”. The billy is described as about 30 inches in length.
The officers who made the arrest testified that there were differences between nightsticks, blackjacks and billy clubs. A nightstick or a riot stick is about 36 inches long and is carried on a cord or a string. A blackjack is approximately one foot long and flat in shape and is carried in the pocket. A billy club is about two and one-half feet in length and is made of wood. The officers also noted that the trunk of defendant’s car was opened voluntarily at their request and that it contained a fisherman’s tackle box, two fishing rods and an amount of unspecified clothing.
The defendant testified that he fishes regularly for large fish, such as pike, "muskie” and salmon, and that he had purchased the club at a tackle shop in Taylor, Michigan, four years previously, paying $1.98 for it. Defendant told the jury that he had used the instrument on numerous occasions and gave, as an example, the time that he caught a large pike and the lure became stuck in the fish’s mouth. Defendant hit the fish on the head with the club, stunning it, and was then able to extract the lure without being bitten.
Battles also testified that he always carried the fishing gear in his car because, "I might just stop anywhere and want to fish”, and that he had, in fact, been fishing on the day prior to his arrest. On cross-examination, defendant admitted that the club, though designed as a fisherman’s tool, could easily be used as a weapon, but that a baseball bat or pool cue-stick could be put to use as a weapon as well.
The prosecutor closed his argument to the jury, misstating the law by telling the jury that he only had to prove that the object was a billy and that the defendant possessed it. Moreover, the prosecutor improperly argued to the jury that the law proscribed mere possession of this device, whether it was used for fishing or any other purpose.
We note, however, that the trial judge properly instructed the jury in accordance with Michigan Standard Criminal Jury Instruction 11:8:01. He told the jury that a defendant charged with possession of a billy must knowingly possess it with knowledge of its real character as a weapon.
At issue is the reach of MCL 750.224(1); MSA 28.421(1), which reads:
"(1) A person who shall manufacture, sell, offer for sale, or possess a machine gun or firearm which shoots or is designed to shoot automatically more than 1 shot without manual reloading, by a single function of the trigger, a muffler, silencer, or device for deadening or muffling the sound of a discharged firearm, a bomb or bomb shell, blackjack, slung shot, billy, metallic knuckles, sand club, sand bag, bludgeon, or a gas ejecting device, weapon, cartridge, container, or contrivance designed or equipped for or capable of ejecting gas which will either temporarily or permanently disable, incapacitate, injure or harm a person with whom it comes in contact, shall be guilty of a felony, and shall be imprisoned for not more than 5 years, or be fined not more than $2,500.00, or both.”
Constitutional challenges for vagueness or over-breadth, where the claim does not touch the First Amendment, must be examined in the light of the facts at hand. United States v National Dairy Products Corp, 372 US 29, 36; 83 S Ct 594; 9 L Ed 2d 561 (1963), People v Howell, 396 Mich 16, 21; 238 NW2d 148 (1976), People v Lynch, 410 Mich 343, 352; 301 NW2d 796 (1981).
With this guide before us, we hold that the portion of the statute prohibiting the manufacture, sale, offering for sale, or possession of a "billy”, as applied to these facts, is unconstitutionally over-broad, proscribing conduct which is otherwise wholly innocent. Possession of a "fish billy”, commercially sold and used as such is not within the ambit of the statute. Because the term "billy” is not defined by the statute, and because reasonable citizens may purchase and use such implements in sport fishing, totally innocent of any wrongful knowledge or intent, the lack of specificity in the statute makes the law unconstitutionally over-broad as applied to this defendant.
Reversed. | [
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Bronson, P. J.
Pursuant to a plea bargain, defendant pled guilty to three armed robbery charges arising out of separate incidents and one count of carrying a firearm during the commission of a felony, contrary to MCL 750.529; MSA 28.797 and MCL 750.227b; MSA 28.424(2), respectively. As part of the agreement, sentences of 5 to 20 years for one of the armed robbery convictions and two sentences of 8 to 20 years for the other armed robbery convictions were imposed. These sentences were to run concurrently with another term of imprisonment defendant was serving at the time of the plea. Defendant also received a five-year consecutive sentence for the felony-firearm conviction. Additionally, as part of the bargain, the prosecution agreed not to try defendant as a habitual offender. Defendant now appeals as of right.
Defendant’s primary allegation is raised through two different approaches on appeal. Defendant contends that, because the total elapsed time between meeting his attorney, pleading guilty, and being sentenced was somewhat less than three hours, his plea cannot be considered voluntary and that he was denied effective assistance of counsel. Following sentencing, defendant moved for a new trial on these grounds. At this time, affidavits were filed averring that defense counsel failed to investigate defendant’s claims of an improper lineup identification procedure and of an improperly ob tained confession. Defendant further avers that his counsel told him he had to plead guilty that day.
There is no doubt that the pleas here were taken in an unusually hasty manner. It is much more common for a guilty plea to be offered at a pretrial date than for one to be given on the same date the defendant meets his attorney. Additionally, there is usually some period of time between the taking of the plea and sentencing. During this period of time, if a defendant moves to withdraw his guilty plea, asserts his innocence, and gives a reason for withdrawing the initial plea which is not obviously frivolous, the motion for withdrawal should be granted. People v Zaleski, 375 Mich 71, 79; 133 NW2d 175 (1965), People v Hatcher, 83 Mich App 307, 308; 268 NW2d 389 (1978), lv den 405 Mich 823 (1979). In this case, however, as defendant’s motion to withdraw came after sentencing, even though there was no period of time between the plea and the imposition of sentence, this rule does not govern defendant’s motion. Generally, where a defendant moves to withdraw a plea of guilty after sentencing, the trial court’s denial of that motion will not be disturbed unless it is clear that the failure of the appellate court to intercede will result in a miscarriage of justice. See, for example, People v Eaton, 38 Mich App 113, 114; 195 NW2d 797 (1972), lv den 387 Mich 777 (1972). We note, however, that the rationale for applying this rule is largely absent in this case since defendant’s motion to withdraw his plea was obviously not due to dissatisfaction with the sentence imposed (he knew what the sentence would be before he pled guilty) and since defendant had literally no opportunity to reflect on his decision to plead guilty before sentencing.
This Court has recognized that a claim of ineffective assistance of counsel is reviewable following a guilty plea. People v McDonnell, 91 Mich App 458; 283 NW2d 773 (1979), lv den 407 Mich 938 (1979), People v Hale, 99 Mich App 177, 182; 297 NW2d 609 (1980). While complete resolution of the claim of ineffective assistance of counsel raised here is not possible on this record, defendant did move to withdraw his plea on the same grounds below so that review of the contention is not precluded. McDonnell, supra. We further note the difficulty in obtaining record support for an ineffective assistance claim arising during the process of a plea agreement. See, Comment, Effective Assistance of Counsel in Plea Bargaining: What is the Standard?, 12 Duquesne L Rev 321 (1973).
We are unprepared to adopt the rule advanced by defendant’s appellate counsel, namely, that there is per se ineffective assistance of counsel where the initial contact between attorney and defendant precedes the plea of guilty and sentencing by only a few hours. At the same time where, as here, a cognizable claim is raised that counsel did not investigate potentially meritorious defenses to the charges, and the time-span from the initial contact between the attorney and his client to the point of the guilty plea is so short that a substantial possibility appears on the record that potential defenses suggested by defendant were not considered, we believe that a full evidentiary hearing on the ineffective assistance of counsel allegation must be conducted. We agree with the panel of our colleagues who decided McDonnell, supra, 461, that defense counsel performs inade quately where he fails to seriously investigate and consider the possibility of defenses suggested by defendant.
In this case, although there was a hearing to consider defendant’s motion to withdraw his guilty plea, no testimony was taken. Several questions remain unanswered: Does defendant’s trial counsel agree that information was relayed which suggested defenses to the charges? Did defendant want to plead guilty without further exploration of possible defenses because he believed he was being offered a good deal? Did trial counsel really indicate that defendant had to plead guilty on the day of their initial contact? If so, what was the complete substance of this conversation? Was there serious investigation of the potential defenses allegedly raised by defendant? Did the alleged suggested defenses apply to all of the charges or would the defenses only have applied to some of the charges? Other relevant matters might need to be developed at the time of the remand.
The prosecution relies on People v Flanagan, 72 Mich App 613; 249 NW2d 872 (1976), for the proposition that a guilty plea will not be set aside where defense counsel hurried defendant into making the plea. Flanagan is distinguishable from this case primarily in that the defendant in Flanagan did not express the opinion that his attorney failed to investigate potential defenses. Instead, the defendant in Flanagan merely expressed feel ings that he was hurried into pleading guilty without allegations that the assistance he received from his attorney was inadequate.
Defendant also asserts that an inadequate factual basis was elicited to sustain one of the armed robbery convictions. Specifically, defendant contends that the information conveyed at the plea-taking was inadequate to lead to the conclusion that the victim of the robbery believed defendant was armed. The transcript of the plea proceedings states, insofar as is relevant:
"The Court: Okay. On the date in question, which is here in the file, what happened on the case 79 08296, which involves an area at Lyndon and Wyoming? There was a robbery committed at that time. What were the circumstances?
"The Defendant: I got out of the car and made like I had a gun in a paper bag, and asked the man to get out of the car. And, he did. And, I got in and took his car.
"The Court: You had a gun at that time?
"The Defendant: No, I didn’t have one.
"The Court: You had the hand in the bag at that time, indicating that you might have been armed?
"The Defendant: Yeah, yeah.”
In Guilty Plea Cases, 395 Mich 96, 130; 235 NW2d 132 (1975), the Supreme Court held that a factual basis is sufficient to sustain a conviction if the jury could reasonably draw an inculpatory inference from the admitted facts. We believe that defendant’s admission that, "I made like I had a gun in a paper bag”, along with his statement that his victim subsequently complied with his demand, supports drawing the inference that the victim reasonably believed defendant had a weapon.
Defendant also avers that the felony-firearm statute is unconstitutional. However, as he notes, the Michigan Supreme Court does not agree. Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979), app dis sub nom Brintley v Michigan, 444 US 948; 100 S Ct 418; 62 L Ed 2d 317 (1979).
We address sua sponte the question of whether a five-year felony-firearm sentence was proper in this case. In People v Sawyer, 410 Mich 531; 302 NW2d 534 (1981), the Supreme Court stated that a defendant convicted of a second felony-firearm offense may not receive the greater five-year penalty unless the second offense is subsequent to the first conviction. In this case, the record reveals to a virtual certainty that the second felony-firearm offense was not committed subsequent to conviction on the first offense. The record shows that at the time of sentencing in this case, the prior felony-firearm conviction was very recent and also strongly indicates that defendant had been in prison continuously since the time of the prior conviction. On remand, unless the trial court ascertains that, in fact, the second felony-firearm offense occurred after conviction on the first offense, it shall modify the sentence imposed for violation of MCL 750.227b; MSA 28.424(2) from five years to two years.
Remanded for proceedings consistent with this opinion. We retain jurisdiction. All hearings to be conducted and findings of fact to be made within 60 days of the release date of this opinion._
It is possible that the prosecution left the plea agreement open for one day only. If so, and if this was explained to defendant, even if true, this does not constitute a basis for reversal.
It was possible to sentence defendant immediately because a presentence report had already been prepared.
Where a guilty plea is taken within a few hours of the defendant’s preliminary contact with his attorney, to avoid the necessity of a remand if ineffective assistance of counsel is later claimed, the trial court could inquire of the defendant whether he believes he might have defenses to the prosecution and, if so, whether he has discussed these with his attorney. The court might also inquire of defense counsel whether defendant suggested any possible defenses and, if so, whether these were investigated.
Counsel states that he raises this claim to preserve it for possible consideration in the federal courts. | [
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Per Curiam.
Plaintiff appeals from the entry of summary judgment in favor of defendant bar owners.
On June 20, 1977, plaintiff initiated a suit arising out of an automobile accident between plaintiff and defendant Kortas. In an amended complaint filed on February 22, 1978, plaintiff alleged a violation of Michigan’s dramshop act, MCL 436.22; MSA 18.993, and included as defendants Charles and Josephine Borg and Hillman Von Zidkow, the partners operating the Dare Bar. Subsequently, numerous interrogatories and depositions were taken.
In September, 1979, defendants Von Zidkow and the Borgs moved for summary judgment pursuant to GCR 1963, 117.2(3), on the ground that plaintiff was unable to prove Kortas’ visible intoxication at the time of the sale of the liquor, an essential element of plaintiff’s dramshop claim. After a hearing on November 2, 1979, the circuit court granted defendant bar owners’ motion.
We hold that summary judgment was granted prematurely. As a general rule, a motion for summary judgment based upon GCR 1963, 117.2(3), should not be granted until discovery is completed. Goldman v Loubella Extendables, 91 Mich App 212, 218; 283 NW2d 695 (1979), lv den 407 Mich 901 (1979). While the appellee correctly notes that Goldman "involved complex issues of motive and intent”, we do not believe that this is a critical distinction between it and the instant case. The question is not the complexity of the issues involved but whether further discovery stands a fair chance of uncovering factual support for the liti gant’s position. In our opinion, further discovery in this case might provide sufficient facts to make out a jury question.
Based solely on the record as it currently stands, there exists a substantial possibility that Robert Kortas, the driver of the automobile who struck plaintiffs car, was visibly intoxicated at the time of the sales of alcoholic beverages by defendant. Kortas admits to having drunk five or six beers over a two-hour period while in the bar. Douglas Thompson, a witness to the accident, stated in his deposition that just following the collision Kortas seemed to be drunk. We do not know whether Kortas continued to drink after he left defendants’ bar. This fact, in and of itself, shows the need for further discovery. If Kortas denied drinking anything after he left the bar and Thompson stated that he seemed drunk some two to two and one-half hours after he left the bar, the jury reasonably could infer that he was visibly intoxicated at the time of the sale of intoxicants by the bar.
Moreover, we disagree with the appellee’s contention that neither the police officers who came to the scene of the accident nor the toxicologist who tested Kortas’ blood alcohol level would be able to give relevant and material testimony tending to indicate that Kortas was visibly intoxicated at the time of the sales of alcohol. The police officers’ testimony, like that of Thompson’s, would be highly relevant on this question if Kortas appeared intoxicated to them and he denied drinking anything after leaving the bar. Since the degree of intoxication would dissipate over time, if Kortas drank nothing after leaving the tavern and still appeared intoxicated at the time of the accident, it would seem most unlikely that he did not appear visibly intoxicated at the time of the sales.
The toxicologist, depending on his expertise, could testify as to the likely alcohol content in Kortas’ blood at the time he left the bar based on his blood alcohol level at the time of the accident. If this projected level were high, plaintiff might be able to obtain a medical expert who would testify on the likelihood that Kortas’ intoxication would be visible at the time of the sales. Again, this assumes that Kortas denies drinking anything or, at least, very much after he left the bar. However, until the critical facts concerning Kortas’ post-Dare Bar drinking are before us, summary judgment is clearly inappropriate.
The dramshop plaintiff who has not actually accompanied the drinking defendant to the bar normally faces serious obstacles in proving his case. MCL 436.22; MSA 18.993 requires that the allegedly intoxicated person be named a defendant in the dramshop action. Thus, the person named as intoxicated has a vested interest in denying the same. As such, his cooperation cannot be expected. Nor can the cooperation of the named tavern’s agents be expected. Obviously, individuals who work for the bar would have an interest in seeing that their employer did not lose the dramshop action. A plaintiff who did not actually frequent the tavern which served the drinks will almost never have any hope of tracking down impartial patrons of the bar who might be able to enlighten him concerning the appearance of the one who injured him at the time the sales were made. Where patrons can be found, they are most often friends of the allegedly intoxicated person who, for this reason, have an interest in the outcome of the proceeding. As such, it is our opinion that a plaintiff in a dramshop action should have the opportunity to engage in the most vigorous and complete discovery before any thought is given to directing a verdict against him.
Reversed and remanded. Costs to plaintiff-appellant. | [
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Per Curiam.
This is an appeal of right from a judgment of the Newaygo County Circuit Court, made final pursuant to GCR 1963, 518.2, dismissing Count I of plaintiff’s complaint, a petition for superintending control, for lack of jurisdiction.
This litigation arises out of a take-over offer made by Anderson, Clayton & Co. As delay in decision would work to the detriment of Anderson, Clayton, and in light of the fact plaintiff has filed a motion to expedite the appeal, we peremptorily remand this cause, pursuant to GCR 1963, 820.1(5), (7) for further proceedings consistent with this opinion.
Regarding the jurisdictional issues, in holding that it lacked authority to issue mandamus to the Director, Corporation and Securities Bureau, Department of Commerce, a state official, the circuit court seems to have overlooked recently enacted 1976 PA 317; MCLA 600.4401; MSA 27A.4401, amending RJA § 4401 to provide that mandamus may be brought, at the plaintiff’s option, in this Court, the Circuit Court for the County of Ingham, or any other circuit court of proper venue. Furthermore, the circuit court had jurisdiction to issue an order of superintending control. GCR 1963, 711.4; Chrysler Corp v Civil Rights Commission, 68 Mich App 283; 242 NW2d 556 (1976), Radke v Employment Security Commission, 37 Mich App 104; 194 NW2d 395 (1971). The question of whether to issue the writ is distinct from the power to do so. Here, issuance would depend on whether the Director abused his quasi-judicial discretion either by denying Gerber’s request for hearing or by accepting Anderson, Clayton’s registration statement as being in compliance with MCLA 451.908; MSA 21.293(8). Due to basic securities economics and the omnipresent possibility of market manipulation during any period of uncertainty following public disclosure of the existence of a take-over offer, time is of the essence and appeal is not a "speedy” remedy under the circumstances. In lieu thereof, superintending control may therefore be sought. Cf. GCR 1963, 711.2; Oakland County Prosecutor v 46th District Judge, 72 Mich App 564, 566-567; 250 NW2d 127 (1976).
In enacting 1976 PA 179; MCLA 451.901-451.917; MSA 21.293(1)-21.293(17), the Legislature intended to insure that affected securities investors could make informed decisions regarding management changes accomplished through the medium of take-over offers, thereby buttressing public confidence in securities as a medium of investment, HR Rep No 1711, 90th Cong, 2d Sess; reprinted in (1968) US Code Cong & Ad News, 2811, and to emphasize to the investor the potential effect of his decision on the Michigan economy, as evidenced by MCLA 451.908(l)(c), (h); MSA 21.293(8)(l)(c), (h). Accordingly, the statutory requirement that the offeror provide "material” information must be construed in this light. Moore v Department of Military Affairs, 398 Mich 324, 327; 247 NW2d 801 (1976).
"Material” information is anything of which an average prudent investor ought reasonably to be informed before deciding whether to buy, sell or hold an affected security. 17 CFR 230, 204(1) (1971), applied in Gilbert v Nixon, 429 F2d 348, 356 (CA 10, 1970), and Johns Hopkins University v Hutton, 422 F2d 1124, 1128-1129 (CA 4, 1970). If a reasonable investor would consider a particular item of information important in making such a decision, that fact is "material” per se. Affiliated Ute Citizens of Utah v United States, 406 US 128, 153-154; 92 S Ct 1456; 31 L Ed 2d 741 (1972).
Gerber makes 11 allegations of omission of "material” information and error on the part of the Director of the Corporation and Securities Bureau of the Michigan Department of Commerce who is the administrator of take-over and tender offer matters. The first allegation of a material omission in the registration statement is the failure to disclose Anderson, Clayton’s plans with regard to changing the number of employees in this state, as required by § 8(l)(c) of 1976 PA 179; MCLA 451.908(l)(c); MSA 21.293(8)(l)(c). Gerber notes that the registration statement asserts Anderson, Clayton has no "present” intention of "significantly” reducing "production facilities”, but makes no specific mention of plans regarding the 650 nonproduction workers employed by Gerber. Aside from the production workers, the remaining Gerber workers perform functions which are in large part duplicated in Anderson, Clayton’s Houston-Dallas facilities.
The answer to this allegation is that it is untrue. The registration statement, part VII D states:
"Except as stated in such information, there are no plans or proposals or negotiations, which the offeror has to liquidate Gerber Products Company, sell its assets, effect its merger or consolidation, change the number of its employees in Michigan or change the terms and conditions of their employment, or make any other substantial change in its business, corporate structure, management, or employees upon gaining control.”
Second, Gerber contends that the proposed takeover will affect the terms and conditions of employment of Gerber employees by affecting their pension plan value and retirement benefits, and third, that the disclosure statements do not contain a discussion of the adverse tax consequences which will befall Gerber workers.
In light of the present state of the Federal tax law, these allegations lack apparent merit. Gerber notes that as of December 31, 1975, 2,007 Gerber employees were participants in the retirement investment plan, which by its own terms is required to invest in Gerber stock and holds some 414,000 shares. However, the retirement investment plan, whether deemed a pension plan, deferred compensation plan, employee stock option plan, or other retirement benefit plan, is exempt from taxation. 26 USCA 401 (IRC 1954); Treasury Regs 1.401-1. Should the retirement investment plan sell some of its 414,000 shares to tender offeror it will pay no taxes on the gain because it is tax exempt, and there will be no tax consequences on the employees until such time as there is a distribution of the funds through payments of retirement benefits. 26 USCA 402(a) (IRC 1954); Treasury Reg 1.402(a)-l. The fact that, in order to take advantage of the highly favorable tender offer, the retirement investment plan may need to be amended so as to allow investments in things other than shares of Gerber corporation is a minor detail, easily effectuated without adverse tax con sequences. Furthermore, any employee can transfer within certain time limits rights from one pension fund to another qualified pension fund without any tax consequences. As Anderson, Clayton has specifically announced in its disclosure statements that it intends to effect no change in the existing retirement plan, Gerber’s allegations are seen to be invalid both factually and legally.
Fourth, Gerber contends that the disclosure statement should specify that if the retirement investment plan retains its 414,000 shares of Gerber, or some of them, the value of these shares will be affected by the fact that the company is controlled by Anderson, Clayton, and that such shares therefore constitute a minority interest which may be of diminished value. No reason to make such disclosure appears where such is the effect of any take-over in any company. Disclosure statements are designed to inform the existing stockholders of the kind of new management control he can expect in his company so he can determine whether or not to retain his shares, contribute to the takeover by accepting the tender, or sell his shares on the open market and, in effect, abstain from the decision. Nothing in the philosophy of disclosure requires that investors be given lessons in the basic rules of the investment game concerning majority and minority shareholding. Moreover, Anderson, Clayton has specifically acknowledged in several of the exhibits which are letters to the defendant administrator that it regards itself as a fiduciary with respect to the minority shareholders and is prepared to be held accountable for its subsequent actions should the take-over succeed.
Fifth, Gerber contends that the disclosure statement is misleading in discussing antitrust implications. The disclosure statement notes that in any such acquisition, by a company as large as Anderson, Clayton of a company the size of Gerber, there are always unpredictable antitrust consequences, and the acquisition might well be blocked by Federal officials through legal action. However, the disclosure statement notes that Anderson, Clayton’s special counsel has advised it that no antitrust violation is involved. Gerber’s answer to this is that the Federal Trade Commission has begun an investigation of the proposed take-over and that this should be disclosed in the take-over registration statement. Gerber relies on Hill York Corp v American International Franchises, Inc, 448 F2d 680 (CA 5, 1971).
The Hill York case is totally inapposite to the present case. That involved a pyramid scheme, and the Court found numerous misleading and material omissions where purchasers were given a brochure representing that the defendant promoters of the franchise operation had just left a very successful firm without disclosing the fact that the firm was under investigation by the FTC. Other misleading statements involved included a claim that one of the defendant promoters was an expert in capitalization consulting, when he had no experience in this field. The brochure claimed that the franchise fee was $25,000 when in actuality it was $25,000 plus $1,000 per month royalty. Finally, the brochure claimed that existing sales centers were operating successfully, but it failed to disclose that most of such centers were under investigation by various state securities commissions.
Sixth, Gerber does have a solid point when it notes that allowing the opinion of special counsel to be circulated in this fashion is misleading because the opinion was rendered prior to the commencement of the FTC investigation. Furthermore, the opinion seems dubious in light of exist ing precedent. Since a major food processor such as Anderson, Clayton is always a threat to enter related food markets, its acquisition of the dominant company in the baby food market might well run afoul of § 7 of the Clayton Act, 15 USCA § 18. Federal Trade Commission v Procter & Gamble Co, 386 US 568; 87 S Ct 1224; 18 L Ed 2d 303 (1967).
The importance of clearly and fully disclosing in the registration statement the existence of the FTC investigation and of attenuating the force of the special counsel’s opinion can be seen by considering the investor’s decision whether to accept the tender offer or to retain some of his shares should the tender be accepted as to only part of his holdings. If the acquisition later results in an FTC decision to compel divestiture under the Clayton Act, the market would be flooded with Gerber shares which Anderson, Clayton would have to dispose of. This would grossly depress the stock price of Gerber and consequently reduce the liquidity and value of the holdings of all other investors owning Gerber stock. Faced with that grim possibility, many investors might well decide not to tender their shares.
Seven, Gerber alleges that the disclosure statement makes no mention of Anderson, Clayton’s admissions to the SEC in Form 8-K filed May, 1976, and February, 1977, admitting payment of "inducements” to foreign officials in order to assist Anderson, Clayton operations in other countries. Instead, the disclosure statement acknowledges only that it is alleged that such payments have been made and denies each of the material allegations. Anderson, Clayton defended this omission by noting that copies of Form 8-K are available from the SEC or from the Department of Commerce, but placing such a burden of discovery on the investor seems unreasonable when it could be disclosed in the body of the required registration statement. Thus, we find merit in Gerber’s allegation on this issue.
Eight, the next allegation by Gerber is that Anderson, Clayton has failed to properly disclose the source and amount of funds to be used in acquiring the Gerber stock, a requirement of § 8(l)(b) of 1976 PA 179; MCLA 451.908(l)(b); MSA 21.293(8)(l)(b). This allegation is without factual support. In the file are loan commitment papers in the amount of 210 million dollars from Morgan Guarantee Trust Company and Manufacturers Hanover Bank, two of the largest financial institutions in the country. Gerber contends that Anderson, Clayton has not established its ability to pay back the loans, but this argument seems weak in light of Anderson, Clayton’s observation that institutions such as Morgan Guarantee Trust do not loan out hundreds of millions of dollars without being assured that repayment will be forthcoming.
Nine, Gerber contends that, through carefully placed press releases, Anderson, Clayton has violated § 10(2) of 1976 PA 179 by engaging in "manipulative act[s] or practice[s] in connection with a tender offer”, MCLA 451.910(2); MSA 21.293(10)(2). Gerber gives no explanation as to why the act should be construed to limit the first amendment right of an offeror to reveal its plans to the news media. The only thing manipulative about Anderson, Clayton’s actions in this regard is that the $40 per share offer is so tempting it may well create a stampede, something Gerber management understandably finds threatening to its continued employment security.
Ten, it is argued that Anderson, Clayton, by purchasing 90,000 shares of Gerber stock within 60 days of the tendering period, violated § 5 of 1976 PA 179; MCLA 451.905; MSA 21.293(5). However, § 5 merely prohibits the purchase of any shares for 60 days after the effective date of a tender offer. Nowhere in the act is there any mention of purchasing shares prior to the effective date of a take-over offer. Furthermore, every court which has previously considered the issue has held that purchase of shares on the open market does not constitute a "tender offer” for purposes of regulatory legislation. Gulf & Western Industries, Inc v Great Atlantic & Pacific Tea Co, Inc, 356 F Supp 1066 (SD NY, 1973), aff'd (without mentioning this point), 476 F2d 687 (CA 2, 1973), Water & Wall Associates, Inc v American Consumer Industries, Inc, 1973 CCH Fed Sec L Rep ¶ 93, 943 (DC NJ, 1973), D-Z Investment Co v Holloway, 1974-5 CCH Fed Sec L Rep ¶94, 771 (SD NY, 1974), Nachman Corp v Halfred, Inc, 1973-4 CCH Fed Sec L Rep ¶ 94, 455 (ND Ill, 1973). 1976 PA 179 accords recognition to this principle by exempting from the definition of "take-over offer” in § 4(2)(c) the acquisition of an equity security "pursuant to an offer effected by or through a broker-dealer in the ordinary course of his business”, MCLA 451.904(2)(c); MSA 21.293(4)(2)(c).
Eleven, last is the question of the propriety of the Director’s decision not to grant Gerber a hearing. As the Director noted in letters to counsel for Gerber, as originally introduced, 1975 House Bill No. 4151 would have required the Director to order a hearing upon request of the target company:
"Unless prior thereto the administrator calls a hear ing with respect to the offer. The administrator may call a hearing if necessary or appropriate for the protection of offerees in this state, and shall call a hearing if requested by the target company.”
As enacted, however, § 5(4) provides simply that the effective date of a take-over offer may be stayed by the Director "if the administrator orders a hearing for * * * [the] alleged violation of this act”, MCLA 451.905(4); MSA 21.293(5X4). Given the exigencies of securities trading, the statute should be construed as requiring a hearing only where there are substantial grounds for believing that a prima facie case establishing a violation of the act can be made.
Gerber seeks a hearing for the purpose of examining under oath executives of Anderson, Clayton regarding the truth of statements in the registration statement now pending. We agree with the Director that he need not hold such hearing. If the registration statement discloses all material facts as required by the act, the averments therein may be accepted by the Director as true. Should subsequent events establish the falsity of any statement in the registration statement, the act provides ample remedies by way of rescission of any sale or purchase on petition of the Director, Attorney General, or prosecuting attorney of the appropriate county. MCLA 451.914(2); MSA 21.293(14X2). Investors are protected by being able to file an action to recover the security, plus any income received thereon by the purchaser together with interest, costs, and reasonable attorney’s fees. MCLA 451.917(1); MSA 21.293(17)(1). The potential imposition of such draconian penalties provides sufficient assurance of the truth of statements made in the registration statement for the purpose of allowing a take-over effort to proceed.
In conclusion, we hold that the trial court did have jurisdiction to issue a writ of superintending control. We further find against Gerber on 9 of the 11 charges of material omission in the registration filed by defendant and approved by the Director. Nevertheless, we conclude that in two respects the registration statement requires fuller disclosure. This cause is therefore remanded to the Newaygo County Circuit Court, with instructions to supervise the supplementation of the registration statement so as to provide full, fair, and truthful disclosure of possible antitrust consequences and of past '■'payments” to foreign officials as disclosed in previously filed Forms 8-K promulgated by the SEC. The restraining order entered by the circuit court on May 20, 1977, shall be continued until the circuit court and the Director are satisfied that the registration statement truthfully, fairly and fully discloses all material matters.
Pursuant to GCR 1963, 821.3 the clerk is hereby ordered to issue final process in this cause forthwith. No costs, neither party having prevailed in full.
Anderson, Clayton controls nationally, 11% of the pourable salad dressing market, 7% of the butter substitute market, inter alia.
Gerber controls 69% of the national baby food market. | [
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] |
J. H. Gillis, J.
The law firm of Jaffe, Snider, Raitt, Garratt & Heuer, P. C. (hereinafter referred to as JSRG & H) appeals by right from an order requiring the firm personally to pay $960 in witness fees to the law firm of Greenfield & Koppel-man, P. C. (hereinafter referred to as G & K).
The principal case underlying the present controversy was a contract action initiated in 1972 in which the Spurlings claimed that Silvio Battista had agreed to sell them 10% of Silcor, Inc., and that a $5,000 down payment had been made. On January 23, 1973 Silvio Battista filed a third-party complaint against Joseph Fuger and Sil Machine Rebuilding Press Repair Company (hereinafter referred to as Sil Machine), claiming that they were liable for the contract damages. Silvio Battista had sold his entire interest in Silcor, Inc. to Joseph Fuger and Sil Machine.
JSRG & H represented principal defendant-third-party plaintiff, Silvio Battista. G & K represented third-party defendants, Sil Machine and Joseph Fuger.
Sil Machine went into bankruptcy and Joseph Fuger fled the country. Being left without a client, G & K was allowed to withdraw from the case on December 8, 1975.
On January 20, 1976, principal defendant, Silvio Battista, filed a motion to compel nonparty witnesses to produce documents. On January 22, 1976, Norman E. Greenfield and Mark S. Koppel-man, individually and on behalf of Rubenstein, Butcher & Allen and G & K, were served with a subpoena duces tecum commanding them to appear and give testimony for defendant and bring with them certain documents. G & K responded claiming attorney/client privilege and work product. On January 26, 1976, the trial court granted defendant’s motion. Norman E. Greenfield and Mark S. Koppelman complied with the order and spent approximately 16 hours being deposed.
Subsequently, G & K filed a motion for witness fees pursuant to MCLA 600.2552; MSA 27A.2552, seeking compensation for loss of working time. The motion was directed at JSRG & H personally. The court granted G & K’s request and ordered JSRG & H to pay G & K $60 per hour for 16 hours amounting to $960 in witness fees. JSRG & H appeal from that order.
We recognize that circuit courts have broad powers, MCLA 600.601; MSA 27A.601, and that they have the power to "make any order proper to fully effectuate” their jurisdiction and judgments, MCLA 600.611; MSA 27A.611; however, we find that in this case the trial court did not have the power to compel JSRG & H to pay witness fees.
JSRG & H was not a party to this action. There has been no complaint filed against it. Therefore, the only way that the trial court could have authority over JSRG & H would be because of its involvement as counsel for Silvio Battista or under GCR 1963, 908.
GCR 1963, 908 is inapplicable because G & K was not a client of JSRG & H nor has it claimed to be successor to such a client. See Maljak v Murphy, 385 Mich 210; 188 NW2d 539 (1971).
G & K had full knowledge that JSRG & H was acting in a representative capacity on behalf of Silvio Battista. All of the relevant pleadings and subpoenas reflect that they were filed by Silvio Battista through his attorneys, JSRG & H. G & K has made no claim that JSRG & H undertook to be personally bound. We refuse in this type of situation to hold an attorney liable to third parties for expenses incurred on behalf of clients. See Anno., 15 ALR3d 531, § 14, p 557.
Although we reverse the trial court in ordering JSRG & H to pay witness fees, we find that further explanation of MCLA 600.2552; MSA 27A.2552 is in order. It provides in relevant part:
"(1) Witnesses shall receive for attending in any suit or proceeding pending in a court of record, $12.00 for each day and $6.00 for each half day, or a witness may be paid for his loss of working time, but not more than $15.00 for each day shall be taxable as costs as his witness fee. Witnesses shall receive for traveling at the rate of 10 cents per mile in coming to the place of attendance and returning therefrom, to be estimated from the residence of such witness, if within this state, or from the boundary line of this state, which such witness passed in coming, if his residence is out of the state.”
We agree with the trial court that the. phrase "or a witness may be paid for his loss of working time” leaves the decision to so award and the amount awarded within the discretion of the trial court. We make no comment as to whether or not $60 per hour would have been appropriate in this situation had the request been made against the proper party; however, we do offer the following guidelines to be used when applying this statute.
We caution trial courts to utilize this provision of the statute with much caution. It must be remembered that the duty to give testimony is a public obligation. Hurtado v United States, 410 US 578; 93 S Ct 1157; 35 L Ed 2d 508 (1973). Additionally, according to the statute, regardless of the amount of compensation awarded to the witness, only $15 per day is taxable as costs should the party requesting the testimony prevail. See Mihailoff v Meijer, Inc. 53 Mich App 312; 218 NW2d 798 (1974). Large witness fees could therefore result in pretrial preparation costing more than any possible recovery. In light of the policy toward encouraging pretrial preparation, this would be most undesirable. On the other side, we are sympathetic to the witness who contributes much time testifying for a party and loses work time in the process. Often the standard witness fee does not make the witness whole.
In exercising its discretion, the trial court should first consider whether the witness did in fact lose working time. Witness has been defined as "one who testifies under oath to something he knows at first hand”. People v Martin, 316 Mich 669, 672; 26 NW2d 558 (1947), quoting 3 Bouvier’s Law Dictionary, p 3475. The court should make sure that if compensation is awarded for loss of working time that the individual witness’s loss of time is considered. If the individual is on a salary and received his or her same salary even though not at work, the court should consider if payment of more than the standard fee would amount to double compensation. Whatever the decision, the court should make its findings clear and explain its measure of compensation on the record.
Most important, any fee awarded pursuant to the loss of working time provision of the statute should be for the purpose of making the witness whole and not to punish the subpoenaing party. As appellant in this case correctly pointed out, there are remedies available to witnesses who feel that they are being harassed. See GCR 1963, 305.1, 306.2, 306.4.
In conclusion, we reverse the trial court in ordering JSRG & H to pay witness fees to G & K. We agree with the trial court’s interpretation of the "loss of work time” provision in the witness fee statute; however, we urge trial courts to utilize that provision only when necessary and with great caution.
Reversed. No costs.
N. J. Kaufman, J., concurred.
There has been no appeal as to this order.
In the instant case, the court based the award on the amount of money that the corporation billed its clients per hour. The corporation was not the witness. There was no testimony as to what the witnesses earned, i.e., salary, or if in fact the individuals did lose any income because of the deposition time. The court should focus on actual loss and not on potential gain in seeking to make the witness whole. | [
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] |
Montgomery, J.
This is a bill filed to foreclose a mortgage for $8,000 given on lands in the county of Marquette to secure a portion of tlie purchase price thereof. The ••complainant Pearce is named as trustee in the mortgage; the complainant Hyde is the real owner of the security. The defendant filed an answer, and claimed the benefit of -a cross-bill, alleging that there was fraud perpetrated upon the defendant in the sale of the lands by. the complainant Hyde and one Alonzo L. Foster, who, as tenant in common with Hyde, conveyed the lands to defendant.
The facts appearing by the testimony are that complain•ant Hyde and Foster held the legal title to the lands in question. It appears, however, that one Warrick Price was .a partner with Foster in the lumber business, and was also interested with him in these lands. It is very doubtful whether Hyde knew anything of this relation, but this is immaterial, as we shall see later on. In April, 1890, Warwick Price, who had had some deal with defendant before,' informed him that he knew of a good bargain in the Upper Peninsula, and that he had got the lands traded for Iowa lands, which he could sell at a large advance, and proposed •to defendant that, if he (the defendant) would furnish the .money, he (Price) would pay 5 per cent, on the money .•advanced on the Michigan lands, and divide the profits in the property with defendant, and defendant assented to this -arrangement. In these negotiations Price stated that the Michigan lands could be bought for $20,000. . Subsequent negotiations resulted in a meeting between Price, Foster, •complainant Hyde, and the defendant. . Defendant testified that previous to this he had said to Mr. Price that, before •closing any deal, he desired to see the owners of the land; to quote his own language, “I says I want to see these principals in Michigan which you claim to represent.” On the occasion of the meeting of the three, it is claimed that Hyde and Foster misrepresented the character and value of the lands in question; and because of these misrepresentations, and of the misstatements of Price, defendant now seeks to rescind the contract, and defeat the foreclosure of the mortgage in question.
Defendant testified as follows:
“He came to me after these gentlemen came down that, morning, and said he had made them an offer of $2,000 less than he had agreed to sell me. I had agreed to put. it at $20,000 the day before. When Mr. Hyde and Mr-Foster came down, Mr. Price came in, and told me he had pressed them down $2,000; it was $2,000 our way; instead of being $20,000, he had bought it of them at $18,000. I says, 'All right. You have Avon $2,000 for us.’ He says, 'Yes, I did that. That goes to profit and loss account.”’’
It is contended by defendant that complainant Hyde is; bound by the representations of Price, for the reason that, he has profited by the fraud which it is claimed Price perpetrated upon defendant. But it seems to us that the-defendant does not occupy a position entitling him to> maintain this claim. If the defendant’s testimony as to-Price’s position as agent is true, then it amounts to this:He (defendant) combined Avith Hyde and Foster’s agent to-buy the land of the principals, and to take advantage of’ the betrayal of trust by the agent, and profit to the extent, of $2,000 reduction from the price Avhich he had previously agreed with the agent to pay. If, under these circumstances,, he was deceived by the agent, a court of equity will not. relieve him.
We think, aside from the false statements of Price, if any, the fraud charged in the cross-bill is not made out-by a preponderance of evidence.
But another reason why the relief prayed in this ansAver cannot be granted is that the proper parties are not before the court. After the sale to Ware, Foster indorsed the note, which was given to Foster and Hyde jointly, to Hyde. The consideration for the land Avas $18,000, of which $10,-000 Avas paid in cash. One thousand dollars of this, and the note, were retained by complainant Hyde, and the. 'other $9,000, in cash, was paid to Foster. Before a rescission of this transaction could be decreed, Foster was a .necessary party, and upon defendant’s theory Price was .also a necessary party. No attempt was made by defendant to bring in these parties; and upon the case and pleadings, as they stood, no decree of rescission could be properly made by the court below.
The decree will be affirmed, with costs.
The other Justices concurred. | [
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C. J. Byrns, J.
Defendant was convicted of first-degree murder by a jury and now appeals by right.
The homicide occurred at Hazel Park Race Track, on June 13, 1975. Defendant went there to collect his pregnant wife, who had gone, unaccompanied, to watch the races. He spied her from a distance under the grandstand, where she was watching for the results of the last race, just as the victim, John Sweden, approached her and began talking to her. Defendant approached them, words were exchanged between defendant and Sweden, and the words led to blows. It is unclear who struck the first blow, but from all the testimony it appears that Sweden knocked defendant down two or three times, and that defendant had the worst of the fray. At one point, one of Sweden’s companions intervened, but it is unclear whether he joined Sweden in beating defendant while he was down, as defendant and his wife testified, or whether he was merely trying to restrain Mrs. Alexander, who, it was undisputed, beat her husband’s assailant with her purse.
Sweden’s two companions testified that before defendant finally fled from the scene of the fight he turned, shook his finger at Sweden, and shouted, "Be here when I come back”, or, "Just give me one minute”. This testimony was corroborated by three witnesses unrelated to either the victim or defendant. Defendant and Mrs. Alexander denied recalling that defendant uttered such a threat, although defendant conceded on cross-examination that he was angry and "might have”.
Defendant and Mrs. Alexander denied that she left the grandstand area with defendant after the fight. Defendant maintained that he left the grandstand area to get the loaded revolver that he kept in the trunk of his car with the intention of using it to protect himself and his wife when he returned to rescue her. Sweden’s companions did not testify on this point, but two other witnesses testified that defendant and his wife left the grandstand area together. Defendant’s wife testified that she stayed behind when defendant fled, but could not explain how she came to be standing behind defendant at the time of the shooting without having passed Sweden and his companions, who left the grandstand area after the fight and proceeded toward the parking lot.
It is unclear exactly where the shooting occurred, but all the witnesses agreed that it was somewhere in the vicinity of the boulevard separating the grandstand area from the parking lot. As Sweden and his companions were walking toward the parking area, defendant and his wife ran up, defendant shook the gun in Sweden’s direction, and said, "Hey, what you gonna do now?” Defendant denied making this statement, but he did not deny shooting Sweden twice in the chest, allegedly acting in self-defense as Sweden advanced toward defendant after defendant had warned him to stop.
According to Sweden’s companions, Mrs. Alexander pounded on defendant’s back and shouted, "Shoot him, Ernest, shoot him”, immediately before defendant fired. Mrs. Alexander denied saying this. She testified that she said, "Look out, Ernest”.
Defendant estimated that "maybe a minute” passed between the time he fled from the grandstand area and the time of the shooting. Sweden’s two companions estimated the period between defendant’s "Be here when I get back” statement and his "Hey, what you gonna do now?” statement at from three to five or four to five minutes. Witness Ophelia Walker testified that she heard gunshots two or three minutes after defendant’s threat.
Witness Donald Smith testified that after hearing two shots he saw defendant and his wife walk "nonchalantly” away from Sweden’s body, talking as they proceeded toward the parking lot. Defendant handed the gun to his wife, who put it in her purse, and then they separated. Defendant proceeded at a "lope” toward Ten Mile Road while his wife ran to the car. Smith wrote down the license number on a newspaper and related it to a police officer at the scene who broadcast it. Two patrolmen spotted defendant’s car on Ten Mile Road and began following it. One of them, Officer Sanders, testified that as they drew up beside defendant’s car near the intersection of Tawas and Ten Mile he saw a flicker of movement. Fearing that defendant was about to open fire, the officers dropped back and waited for assistance before stopping defendant’s car. Defendant’s gun was subsequently recovered near the intersection of Tawas and Ten Mile, and ballistics tests confirmed that it was the murder weapon.
Officer Sanders testified that when he advised defendant that he was under arrest for attempted murder, defendant responded, 'T know”.
On appeal, defendant’s appellate counsel has raised a single claim of error, and defendant, by way of supplemental briefs filed in propria persona, has raised three additional claims of error.
The first claim of error concerns a question posed to defendant by the prosecutor on cross-examination. On direct examination defendant testified that he purchased the gun in Detroit in March, 1975, after being held up, and that he had kept it in his trunk ever since. On cross-examination defendant repeated his testimony that he had kept the gun in his trunk since March, whereupon the prosecutor asked defendant if it would "surprise [him] to know that this particular gun was reported taken in a holdup in Detroit on April 13, 1975”.
Defendant now contends that the question was so prejudicial as to warrant reversal, even though defense counsel’s prompt objection was sustained, the question went unanswered, and the trial judge cautioned the jury to disregard the question. Defendant claims that the trial judge should have granted defendant’s motion for a mistrial. We disagree. This case presents a situation quite unlike that in People v Brocato, 17 Mich App 277, 291; 169 NW2d 483 (1969), relied upon by defendant, in which the prosecutor "made every conceivable effort to prevent the defendant from having a fair trial” by repeatedly engaging in blatant acts of misconduct. In the present case, we perceive the prosecutor’s question as an attempt to test defendant’s memory and credibility, People v Alphus Harris, 56 Mich App 517, 530-531; 224 NW2d 680 (1974), rather than as an attempt to inject prejudicial and inadmissible matters into the trial. People v Gregory Williams, 57 Mich App 521; 226 NW2d 547 (1975).
In addition, we believe that the trial judge’s action in sustaining defense counsel’s objection to the question before it was answered and in promptly cautioning the jury to disregard the question cured any error the prosecutor may have committed. People v Jack, 61 Mich App 638, 639; 233 NW2d 120 (1975). Accordingly, denial of defendant’s motion for mistrial was proper.
Finally, we note that during his closing argument defense counsel compounded any error the prosecutor may have committed by inaccurately characterizing the prosecutor’s question. Since the prosecutor’s question appears to have been posed in a good faith attempt to impeach defendant’s credibility, and since the trial judge promptly corrected any error that may have arisen, defendant should not be heard to complain when the prejudice alleged was aggravated by his own attorney’s closing argument. See People v Clark, 63 Mich App 334, 338; 234 NW2d 511 (1975), People v Jelks, 33 Mich App 425, 431; 190 NW2d 291 (1971).
Defendant raises three claims in his supplemental briefs. His first contention, that the trial judge who presided at defendant’s jury trial should have been disqualified because he accepted Mrs. Alexander’s guilty plea, is without merit. Consideration of a disqualification claim not raised at the time of trial is precluded when the basis for such disqualification was known before the trial. People v Dudley, 393 Mich 762; 223 NW2d 297 (1974). We note also that the reasoning of People v Chesbro, 300 Mich 720, 723-724; 2 NW2d 895 (1942), is applicable to this case. Absent a showing of actual prejudice, bias, or misconduct from the record, a trial judge has the right to hear a case to its conclusion. People v Irwin, 47 Mich App 608; 209 NW2d 718 (1973), see People v Grable, 57 Mich App 184; 225 NW2d 724 (1974). Defendant’s concession that he "does not in any way suggest that the trial judge in this was anything but fair and impartial” is confirmed by our complete review of the transcript of the proceedings below, and accordingly we find no error.
Defendant next contends that reversible error occurred when the prosecutor revealed that Mrs. Alexander had been convicted on her plea of guilty to a reduced charge of manslaughter in connection with this case. This occurred after Mrs. Alexander reiterated on cross-examination her testimony on direct examination that she had merely warned defendant to "look out”. The prosecutor questioned Mrs. Alexander closely on this point, asking her if she was absolutely sure that she had not said, "Shoot him, Ernest, shoot him”. After Mrs. Alexander denied saying that, and without defense objection, the prosecutor called in rebuttal the court reporter who recorded Mrs. Alexander’s guilty plea and impeached Mrs. Alexander’s testimony with that of the court reporter, who testified that when asked by the judge whether she had told defendant to shoot Sweden, Mrs. Alexander had answered "yes”.
Initially, we note three factors that enter into our decision. First, defense counsel failed to object to any of the questions posed to Mrs. Alexander on cross-examination and also failed to object to the court reporter’s impeachment testimony. In the absence of manifest injustice, failure to object to allegedly improper impeachment precludes review. People v St Onge, 63 Mich App 16, 19; 233 NW2d 874 (1975).
Secondly, defense counsel had already revealed, for all practical purposes, that Mrs. Alexander had been convicted as a result of her participation in this matter, by repeatedly asking whether she had been convicted "previous to this case”.
Thirdly, once the fact of Mrs. Alexander’s conviction had been divulged, defense counsel chose to question Mrs. Alexander as to why she had pled guilty, thus emphasizing that fact. Mrs. Alexander explained that she had been guaranteed probation and had not wanted to risk being convicted and separated from her baby by going to trial.
Additionally, we note that the prosecutor only alluded to Mrs. Alexander’s guilty plea in the course of laying a foundation for impeaching her testimony, that she had not urged defendant to shoot the victim, with her statements at the plea-taking. The questions posed by the prosecutor were necessary to comply with the foundation requirements set forth in People v Graves, 15 Mich App 244; 166 NW2d 480 (1968). In this case apparently no transcript of the plea-taking was available for use in impeaching Mrs. Alexander, and the court reporter had to be called so as to enable her to testify from her notes.
Mere revelation of the fact that an accomplice has pled guilty in the course of impeaching the accomplice’s testimony does not necessarily entitle a defendant to reversal. See People v St Onge, supra, People v Woodfork, 29 Mich App 633; 185 NW2d 826 (1971), People v Marra, 27 Mich App 1, 8; 183 NW2d 418 (1970). In the present case, the fact of Mrs. Alexander’s guilty plea was revealed in the course of proper impeachment of her testimony on a material point by use of her prior inconsistent statement at the guilty plea proceeding. See People v Coates, 40 Mich App 212; 198 NW2d 837 (1972). Mrs. Alexander’s testimony that she did not urge defendant to shoot his victim was material to the issue being tried, viz. whether defendant acted with premeditation and deliberation, and thus the prosecutor did not improperly impeach Mrs. Alexander upon testimony collateral to the issue being tried. See People v McGillen #1, 392 Mich 251, 265-268; 220 NW2d 677 (1974).
In view of the foregoing, this case is distinguishable from those in which the prosecutor deliberately injected evidence of a codefendant’s or accomplice’s guilty plea in an improper attempt to prejudice the defendant, see eg., People v Brocato, supra, People v Eldridge, 17 Mich App 306; 169 NW2d 497 (1969), or in which the fact that an accomplice has pled guilty is revealed to the jury in the course of ruling on a self-incrimination claim. See People v Brown, 44 Mich App 402; 205 NW2d 207 (1973).
" 'Whether [a prosecuting attorney’s disclosure during trial that another defendant has pleaded guilty] was prejudicial is a question of fact, and, in the final analy sis, each case must be determined on its own particular facts, for there is no legal standard by which the prejudicial qualities of a prosecuting attorney’s remarks or conduct can be gauged, and it is only when, in the light of all the circumstances attendant upon a trial, the misconduct complained of can be said to have influenced the jury’s verdict and prevented a fair trial, that prejudice results.’ ” People v Eldridge, supra, at 317.
In the present case, the fact of Mrs. Alexander’s guilty plea was revealed in the course of proper impeachment and without defense objection. Defense counsel had previously implied that she had been convicted in connection with this case, and he further emphasized the guilty plea by questioning Mrs. Alexander concerning her reasons for tendering her plea. Under these circumstances, we hold that it was not so prejudicial as to constitute reversible error for the prosecutor, in the course of impeaching her testimony on a material point, to divulge the fact that Mrs. Alexander had pled guilty, particularly in view of the overwhelming evidence against defendant. See People v Woodfork, supra.
Finally, defendant contends that there was insufficient evidence to warrant submission of the charge of first-degree murder to the jury. Defendant argues that the testimony shows that the homicide was committed in the heat of passion, after great provocation by the victim. Although defendant may have been humiliated by the beating inflicted upon him by the victim, and may even have been enraged when he fired the fatal shots, we are unable to say, as a matter of law, that there was insufficient evidence to warrant submission of the first-degree murder charge to the jury.
Indeed, the above statement of facts, culled from a careful and thorough review of the entire transcript, contains more than sufficient evidence of premeditation and deliberation to warrant submission of the question to the jury.
First, five witnesses testified that defendant uttered a threat before leaving the grandstand area. The witnesses variously estimated that, between defendant’s threat and the shooting, one minute (defendant), two or three minutes (Ophelia Walker), three to five minutes or four to five minutes (Sweden’s companions) elapsed. It is only necessary that there be "Some time span between initial homicidal intent”, as evidenced in this case by defendant’s threat, "and ultimate action * * * to establish premeditation and deliberation”. People v Hoffmeister, 394 Mich 155, 161; 229 NW2d 305 (1975), People v Bargy, 71 Mich App 609, 613; 248 NW2d 636 (1976). This case is thus unlike People v Vail, 393 Mich 460, 471; 227 NW2d 535 (1975), in which all witnesses but one, whose testimony was self-contradictory, testified that defendant’s shot was fired almost simultaneously with that of his victim. We cannot say that the time interval was insufficient to afford defendant a chance to subject the nature of his initial response to a "second look”. People v Morrin, 31 Mich App 301, 330; 187 NW2d 434 (1971), see People v Berthiaume, 59 Mich App 451; 229 NW2d 497 (1975).
Secondly, in this case, there was abundant evidence that defendant "acquired or positioned” his weapon with the thought beforehand to kill Sweden. Defendant had ample motive to do so, having lately received a beating from Sweden, and, after uttering his threat, defendant returned to his car, opened the trunk, took out a loaded revolver and went off in search of Sweden. This case is thus distinguishable from People v Morrin, supra, in which defendant used "an apparently impromptu weapon”, a tool of his trade immediately at hand. See People v Berthiaume, supra, at 459.
Finally, the testimony concerning defendant’s conduct leading up to and after the shooting can be regarded as reflecting a coherent plan deliberated and premeditated before the homicide. People v Morrin, supra, at 332. There was testimony that defendant and his wife left the grandstand area together after defendant uttered his threat; that after defendant returned to the car, got his gun, and spotted Sweden, he asked his victim "What you gonna do now?”; that Mrs. Alexander encouraged defendant to shoot; that after the shooting defendant and his wife walked "nonchalantly” away from Sweden’s body while talking; that defendant handed the gun to his wife, who put it in her purse before they separated; that defendant then "loped” out to the highway, where he rejoined his wife after she had negotiated the congested parking area in their car; and that defendant threw away the weapon before he was apprehended. When told that he was under arrest for attempted murder, defendant replied, "I know”. This case is thus quite unlike People v Oster, 67 Mich App 490; 241 NW2d 260 (1976), in which the only evidence suggesting a plan or scheme to kill were the facts that defendant had carried a knife long before the stabbing and that he cleaned the knife afterwards. Defendant’s conduct in this case was "coherent * * * [and] organized enough to suggest [that] it occupied a place in a scheme or plan deliberated and premeditated upon before the homicide”. People v Morrin, supra, at 332, People v Fields, 64 Mich App 166, 169; 235 NW2d 95 (1975) (defendant told his victim he "would be back”).
We are constrained to conclude that there was no error in submitting the charge of first-degree murder to the jury, and we therefore decline to disturb its verdict. Although we can feel a degree of sympathy for defendant, who committed this murder after receiving a severe beating at the hands of the man who had accosted his pregnant wife, we cannot say that the jury was wrong. We note that defendant parked his car next to the race track police post, and observe that he would be a free man today if he had gone there for assistance after receiving the beating instead of taking the law — and his gun — in his hands.
Affirmed.
MCLA 750.316; MSA 28.548.
Defendant lost part of a tooth and at the time of trial he testified that he still bore bruises inflicted during the encounter.
Witness Ann Clayton testified that defendant pointed his finger at Sweden and said, "Wait a minute,” or "Just wait till I come back.” Witness Willie Ann Norris testified that defendant stopped at the door and shouted "that he was gonna get the big guy”. Witness Ophelia Walker testified that defendant shouted, "You wait, you son of a bitch, you wait and then I’ll be back”.
The prosecutor merely asked whether defendant would be surprised to learn that the gun had been taken in a holdup after defendant claimed to have purchased it and stored it in his trunk. If true, this would merely tend to show that defendant’s testimony on that point was not credible. In his closing argument, however, defense counsel criticized the prosecutor for asking defendant if he knew the gun "was in a holdup”, asking, rhetorically, "How low can you get? Bringing something else in here”. | [
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] |
R. B. Burns, P. J.
Plaintiffs brought suit on behalf of themselves and their minor children for damages sustained when the school bus in which the children were riding collided head-on with an automobile. Defendants were the bus driver, Owen Zaphe, his employer, the Cheboygan Area Schools, and the driver of the automobile, Sharon Thornton. A jury returned a verdict of no cause of action. Plaintiffs appeal and we reverse.
Sharon Thornton testified that she had driven Long Lake Road, where the accident occurred, once or twice a week for three years. She had driven on the road when there was snow on it and snowbanks piled on the side. She had previously passed a bus on this road without difficulty. At the time of the accident she was traveling approximately 20 miles per hour and first observed the bus when 90 feet away. When she saw the bus she angled toward the right, moving over "maybe a couple of feet” and had come to a complete stop when she was struck. She noticed that the bus was angling toward her and that the driver was looking in the rear view mirror. The bus driver did not take any action to avoid the accident and part of the bus was over the center line at time of impact.
She further testified that there was sufficient room for two vehicles to have passed each other, despite the snowbanks.
Defendant Zaphe testified that he was familiar with the road, driving it once a day five times a week. He was traveling 10 to 12 miles per hour at the time of the accident. He did not see Ms. Thornton’s car until just a second or two before the accident because of the crest of a hill. He did not dispute Thornton’s testimony that he had angled over the center line toward her. He also thought that the vehicles could have passed each other at the point of impact.
Approximately half of the car and the same width of the bus were damaged. The weather was sunny, although the road was slippery and snow-covered from a snow earlier in the week. The vision of both drivers was limited by the crest of the hill. Two witnesses testified that the bus appeared to be over as far as it could get, and one verified that there was sufficient room at that point in the road for them to have passed safely.
The plaintiffs claim the trial court erred by instructing the jury on the theory of sudden emergency.
The trial court instructed the jury as follows:
"I further charge you, it is the law of the State of Michigan, and we have a state statute which provides as follows, and these will be a series of statutes, as •follows: Drivers of vehicles proceeding in opposite directions shall pass each other to the right, each giving to the other at least one-half of the main traveled portion of the roadway as nearly as possible.
"Further, we have a state statute which provides as follows: (a) No vehicle shall at any time be driven to the left side of the roadway under the following conditions: (1) When approaching the crest of a grade or upon a curve in the highway where the driver’s view is obstructed within such distance as to create a hazard in the event another vehicle might approach from the opposite direction: (2) When the view is obstructed upon approaching within one hundred feet of any bridge, viaduct or tunnel (3) the foregoing limitations shall not apply upon a one-way roadway.
"I further charge you, we have another state statute in the State of Michigan which provides as follows: Upon roadways of sufficient width, a vehicle shall be driven upon the right half of the roadway.
"I further charge you that we have a state statute, and it’s the law of the State of Michigan, which provides as follows: Any person driving a vehicle upon a highway shall drive the same at a careful and prudent speed, not greater than, nor less than is reasonable and proper, having due regard to the traffic, surface and width of the highway and of any other conditions then existing, and no person shall drive any vehicle upon a highway at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead.
"I charge you, if you find either, or both of these defendants violated any of these statutes before or at the time of the occurrence, then that defendant, or both, was guilty of negligence as a matter of law. However, I further charge you in this connection, if you find that either or both of these defendants, at this time and place was confronted with a sudden emergency not of their own making, and if you find that he or she used ordinary care and was still unable to avoid the violation because of such emergency, then his 01 her, or their violation is excused.”
Vander Laan v Miedema, 385 Mich 226; 188 NW2d 564 (1971), sets out several principles involved when a party asserts the doctrine of sudden emergency. First, we must view the facts in the light most favorable to defendants. Second, those facts must indicate that the circumstances attending the accident were either "unusual” or "unsuspected”. An example of an "unusual” circumstance is a blizzard. "Unsuspected” means a suddenly revealed and totally unexpected peril.
In the instant case there was an abundance of evidence that one or both of the drivers were driving left of center at the moment of impact. There is no indication that weather conditions were either "unusual” or caused either driver to be left of center while cresting the hill. A driver who crests a hill over the center line may not assert sudden emergency when he would not have been in peril had he obeyed the statute and crested the hill to the right. The danger in such circumstance is not "totally unexpected”, but rather a foreseeable risk which should have been avoided through obedience to the law. There is no indication here that an "unsuspected” peril caused either driver to be in the wrong lane at the wrong time.
It was error for the trial court to instruct on the theory of sudden emergency with reference to violation of MCLA 257.639; MSA 9.2339 (driving left of center when approaching the crest of a grade).
Reversed and remanded for a new trial. Costs to plaintiffs.
It being unnecessary for resolution of this appeal, we express no opinion as to the propriety of the instruction on sudden emergency as an excuse for violation of any other of the statutes upon which the trial court instructed the jury. | [
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V. J. Brennan, P. J.
Defendants Louis B. Gunter and William T. Griffith were jointly tried before a St. Clair County jury on the charge of armed robbery, contrary to MCLA 750.529, MSA 28.797. On May 2, 1975, the jury convicted both defendants of the charged offense. On June 9, 1975, defendant Griffith was sentenced to a term of not less than 7-1/2 years nor more than 15 years. On June 16, 1975, defendant Gunter was sentenced to a similar term. Both appeal to this Court as of right under GCR 1963, 806.1.
Defendants were charged with the commission of an armed robbery which occurred at the Vega Motel in Port Huron, Michigan, on October 19, 1974. Albert Myles, the manager of the Vega Motel, testified that on the night of the alleged offense he was at the Vega Motel in the company of his daughter and her friend and two grandchildren. He stated that he heard the doorbell ring and went to the door to find a man standing just outside the door asking for a room. He later identified this man as defendant Griffith.
Myles testified that Griffith took the cash box while armed with a handgun. Shortly afterward another man entered; but, because Myles was only able to get a quick glance at the second man, he was unable to identify him. Myles testified as to various objects which were taken by the perpetrators of the offense and identified certain objects found in the defendants’ car as those which were taken from him on the evening in question. Phyllis Dorland, the daughter of Myles, and Thomas Gam ble, a friend of Ms. Dorland, testified in substantial corroboration of the testimony as given by Myles.
Deputy Sheriff Edward D. Lane of the St. Clair County Sheriff’s Department testified that, shortly before the commission of the robbery, he received a call which indicated that there were two black males in the area acting suspiciously. In the company of his partner, Officer Lane proceeded to follow the black males to the site of the Vega Motel. After about ten minutes had elapsed, defendants were observed running from the motel and leaving at a high rate of speed. The two officers followed, and a chase ensued in which the defendants were finally caught. Certain items subsequently found missing from the Vega Motel were found in the defendants’ car.
Both defendants elected to testify in their own behalf. The substance of their testimony was that neither was involved in the robbery committed at the Vega Motel. Testimony was further elicited from both defendants to the effect that they were, due to the influence of drugs or alcohol, somewhat intoxicated during the evening in question. Certain other witnesses testified on behalf of the defense.
On appeal, defendants raise all allegations of error jointly, save one claim which relates to defendant Griffith alone. We will treat the questions dealing with defendants jointly first.
Defendants initially argue the trial court abused its discretion by denying their motions for severance and separate trials of their causes.
Generally, defendants do not have a right to separate trials in this state. People v Hurst, 396 Mich 1, 6; 238 NW2d 6 (1976). Further, joinder of defendants for trial normally rests within the sound discretion of the trial court. MCLA 768.5; MSA 28.1028. People v Smith, 73 Mich App 463; 252 NW2d 488 (1977), People v Hurst, supra, at 6. In moving for separate trials, defendants must clearly, affirmatively and fully show that substantial rights will be prejudiced by a joint trial. People v Scott, 61 Mich App 91, 94; 232 NW2d 315 (1975). See People v Schram, 378 Mich 145, 156; 142 NW2d 662 (1966).
Both defendants’ counsel in this case moved for separate trial based only on the allegations that interviews with their clients disclosed the probability of antagonistic defenses. Supporting affidavits provided no indication of what those defenses would be or what factual basis existed to believe prejudice would occur. Under similar circumstances, no abuse of discretion has been found. People v Markham, 19 Mich App 616, 633, 635; 173 NW2d 307 (1969), People v Kynerd, 314 Mich 107, 112; 22 NW2d 90 (1946). Further, defendants’ testimony at trial was not inconsistent, supporting the view that no prejudice occurred. People v Behm, 45 Mich App 614, 619; 207 NW2d 200 (1973), People v Schram, supra, at 156. We find no abuse of discretion.
Defendants contend secondly that the trial court should have excluded all eyewitness identifications of defendants due to the contingent prejudicial effect of a pretrial lineup which was allegedly unduly suggestive and unfair.
Where the pretrial lineup is allegedly so suggestive as to taint any subsequent identification at trial, we must determine if the lineup was so impermissibly suggestive as to give rise to the substantial likelihood of irreparable misidentification. People v Lee, 391 Mich 618, 626; 218 NW2d 655 (1974), People v Rivera, 61 Mich App 427, 431; 232 NW2d 727 (1975). Defense counsel carries the burden of proving the lineup was impermissibly suggestive where defendant was represented by counsel at the lineup. People v Rivera, supra, at 431, People v Curtis, 34 Mich App 616, 617; 192 NW2d 10 (1971).
In this case, defendants claim the lineup was impermissibly suggestive because (1) they were forced to appear before the witnesses in the same clothes they were arrested in the night of the robbery and (2) with respect to defendant Griffith, all participants in the lineup, although of the same race, were darker skinned than defendant.
We have stated that wearing the same clothing as when arrested is not of itself indicative that a lineup is impermissibly suggestive. People v Jones, 44 Mich App 633, 637-638; 205 NW2d 611 (1973). We find no error here where witnesses had 20 minutes to 1/2 hour in which to observe defendants and where there is no record evidence that identification of defendants depended substantially on the clothing they wore on the night of the robbery.
Neither do we find defendant Griffith’s contention concerning the lightness of his skin persuasive. People v Herrera, 42 Mich App 617, 620-623; 202 NW2d 515 (1972). We do not believe the lineup was impermissibly suggestive. We find no error in the trial court’s subsequent rulings or actions.
Defendant next claims that the trial court abused its discretion by refusing to suppress evidence of the defendants’ prior convictions.
In deciding whether to admit evidence of prior felony convictions for purposes of impeachment, the trial court must exercise and identify its discretion in doing so. People v Trombley, 67 Mich App 88, 94; 240 NW2d 279 (1976). We find the court did adequately exercise its discretion on the record. People v Pleasant, 69 Mich App 322, 328; 244 NW2d 464 (1976).
However, defendants argue that the court abused its discretion by admitting defendant Gunter’s conviction for breaking and entering in 1966 and defendant Griffith’s conviction for breaking and entering in 1967. People v Jackson, 391 Mich 323, 332-333; 217 NW2d 22 (1974).
We will not reverse a conviction simply because the prior convictions admitted by the trial court were remote in time. See Proposed Michigan Rules of Evidence, Rule 609(b) (evidence not necessarily inadmissible where, as here, neither conviction was ten years old or more at the time of the present trial). Furthermore, we have held that the trial court need not exclude prior convictions merely because they involved crimes of a similar nature to the crime charged. People v Townsend, 60 Mich App 204, 206; 230 NW2d 378 (1975). We do not find the prior conviction in this case so remote in time as to be unfair or improper to admit. See People v Penn, 71 Mich App 517, 519-521; 248 NW2d 602 (1976) (where the convictions had occurred some 20 years before). We must also believe from statements on the record that the court properly admitted the prior convictions primarily because of their relation to defendants’ credibility. We find no abuse of discretion here. People v Kelly, 66 Mich App 634, 637; 239 NW2d 691 (1976).
Defendant contends fourthly that the trial court erred reversibly in charging the jury on the defense of intoxication.
We recognize that the Michigan Supreme Court has found defective an instruction on the defense of intoxication which stressed the defendant’s capacity to form the necessary specific intent and not whether defendant had in fact entertained the specific intent. People v Crittle, 390 Mich 367, 372; 212 NW2d 196 (1973).
However, Crittle did not prohibit giving any instruction at all in terms of defendants’ capacity to form criminal intent because of intoxication. In fact, we believe such an instruction is necessary in order to inform the jury that they must determine whether the purported intoxication would prohibit a person from forming a criminal intent. However, what is also necessary to avoid improperly misleading the jury is the additional charge that, regardless of intoxication, defendant must in fact be found to have formed a specific criminal intent before conviction is justified.
In the case before us, the trial court instructed the jury regarding intoxication on three occasions. The pertinent language of the charge in question is the following:
"If you find the Defendants committed the offense but that they were under the influence of intoxicating liquors or drugs to such an extent that they were unable to form the necessary criminal intent, then you cannot find the Defendants guilty of the crime requiring a specific intent.”
The court here emphasizes the need to find the specific intent, not just the capacity to form it. Furthermore, prior to this language, the court instructed as follows:
"Now, I am going to instruct you on intoxication as it might apply to this question of intent or knowledge of wrong. One of the necessary elements to constitute the offense of armed robbery is a felonious intent enter tained by the Defendants at the time it is claimed they committed such offense. While it is true that intoxication cannot excuse a crime in general, it is equally true that when a certain intent is a necessary element in a crime, the crime cannot have been committed when the intent did not exist.” (Emphasis added.)
These intoxication and intent instructions clearly informed the jury of the standards they should use — standards that have been repeatedly approved. People v McKenzie, 67 Mich App 356, 359-360; 241 NW2d 205 (1976), People v Parsons, 59 Mich App 79, 82-86; 228 NW2d 852 (1975), People v Scott, 55 Mich App 739, 741-746; 223 NW2d 330 (1974).
We also observe that defense counsel not only submitted and approved the instructions under these standards, but actively argued them to the jury in closing. We find no error requiring reversal here or anywhere else incident to the court’s charge to the jury.
Defendant next claims the trial court erred by admitting various items of demonstrative evidence.
The court admitted a gun, a knife, a comb, a cash box and a wallet. The various witnesses properly identified these items or similar as being the ones involved in this crime. We review the trial court’s finding of evidential relevancy by the following standard:
"How are we to evaluate the relevancy of the proffered evidence? Defendant has cited this passage by Justice Cooley in Stewart v People, 23 Mich 63; 9 Am Rep 78 (1871), concerning the use of impeachment evidence:
" 'The proper test for the admissibility of evidence ought to be, we think, whether it has a tendency to affect belief in the mind of a reasonably cautious per son, who should receive it and weigh it with judicial fairness.’ (p 75.)
"Justice Cooley further said the judge 'ought to be allowed a reasonable discretion in such cases’ which 'ought not to be set aside except in a clear case of abuse’, (p 76.)” People v Howard, 391 Mich 597, 603; 218 NW2d 20 (1974).
We find reasonable admission of the gun, knife and comb. See People v Howard, supra, at 603.
We also see no error in admitting the cash box and wallet. People v Kremko, 52 Mich App 565, 573; 218 NW2d 112 (1974).
Defendant Griffith last argues that resentencing is necessary due to the trial court’s consideration of allegedly improper and inaccurate information contained in the presentence report.
Within statutory limits, sentencing in Michigan is a matter for the exercise of judicial discretion. People v Lee, 391 Mich 618; 218 NW2d 655 (1974). We also recognize that the ambit of the presentence report compiled by defendants’ probation officer which is provided to the court for purposes of its sentencing decision is necessarily broad. People v Burton, 44 Mich App 732, 733-735; 205 NW2d 873 (1973). The only real limit on what may be included in the presentence report is that the report not contain inaccuracies or clear misinformation. People v Lee, supra, at 636-637.
In this case, defendant Griffith alleges the court considered notation in the presentence report that he had been "suspected of illegal activity” for which he was not tried or convicted.
We note at the outset the presentence report may include information concerning defendant’s illegal activities even though such activity may not have resulted in defendant being charged or convicted. People v Burton, supra, at 735. While we recognize that the notation to mere "suspicion of illegal activity” is vague, we find no affirmative indication on the record that the court relied upon such information in its sentencing decision. People v Nelson Johnson, 58 Mich App 473, 479; 228 NW2d 429 (1975), People v Clark, 57 Mich App 339, 346; 225 NW2d 758 (1975). Further, we observe defendant has not properly presented the issue to us on appeal. Guilty Plea Cases, 395 Mich 96, 137; 235 NW2d 132 (1975). We thus find insufficient reason to remand for resentencing.
Having reviewed both defendants’ various allegations of error and finding none persuasive, we sustain the conviction below.
Affirmed.
J. H. Gillis, J., concurred.
The trial court instructed in essentially the same manner in each of the three instances. | [
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Per Curiam.
This case reflects the difficulties engendered by the repeated efforts of the Supreme Court to decide on the rules surrounding attacks on zoning ordinances. This state of flux initially developed when the Supreme Court came down with their decision in Sabo v Monroe Twp, 394 Mich 531; 232 NW2d 584 (1975). In Sabo, Justice Levin, with Justices Kavanagh and Fitzgerald concurring, stated that "the proper test to be applied in the majority of zoning cases should not be the Kropf test of whether or not the present zoning is unreasonable or confiscatory, but instead, should be whether or not the proposed use is reasonable under all the circumstances”. [Footnote 1 added.] This rule, however, was short lived, as the Supreme Court in Kirk v Tyrone Twp, 398 Mich 429; 247 NW2d 848 (1976), returned to the test set forth in Kropf In the present case, our task is to determine what to do with a case decided while Sabo was controlling.
The trial judge in the instant case did an admirable job of trying to "save” his case from the onslaught of an ever-changing body of appellate law. His opinion is laced throughout with language which, we believe, was intended to be sufficient under either a Kropf or Sabo test. While we commend the trial judge on his efforts, we think it only fair that this case be remanded to the trial court for reconsideration in view of Kirk. This is similar to the position this Court took in zoning cases after Sabo. See e.g. Werkhoven v City of Grandville, 65 Mich App 741; 238 NW2d 392 (1975).
While it may be said that a remand is unnecessary because we hear zoning cases de novo, we are of the view that this approach in the instant case is the best one to fully allow the trial judge’s opinion to be accorded the great weight which we give it on appeal. Therefore, we order that this case be remanded for additional findings of facts or law, if any, necessitated by the Supreme Court’s decision in Kirk, supra We retain jurisdiction.
Kropf v Sterling Heights, 391 Mich 139; 215 NW2d 179 (1974).
Werkhoven v City of Grandville, 65 Mich App 741; 238 NW2d 392 (1975).
Kropf, supra, p 152.
Biske v City of Troy, 381 Mich 611; 166 NW2d 453 (1969).
We liken this procedure to the one employed where there has been a failure to comply with GCR 1963, 517.1. See Powell v Collias, 59 Mich App 709; 229 NW2d 897 (1975). | [
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D. E. Holbrook, J.
Defendant was convicted by the trial court, after proper waiver of jury trial, on November 7, 1975, of two counts of first-degree murder, MCLA 750.316; MSA 28.548. The record reveals that defendant was found guilty of executing Brenda Freeman and her seven-year-old son Johnny. The homicides were committed as part of an insurance fraud scheme in which defendant herein was a hit man in this murder which the trial court found: "as the most brutal, planned, heartless, savage killings in the county’s history”. Following conviction defendant’s motion for a new trial, alleging that his confession which was used at trial was involuntary, was denied. Defendant appeals.
The record reveals that defendant herein was charged with these murders and was at least under suspicion for other similar homicides. Defendant initiated discussions concerning a possible bargaining agreement and subsequently confessed to these two murders. In return for testimony against the other parties to these murders, these charges were to be dismissed and defendant was to be allowed to plead guilty to second-degree murder in another homicide. Defendant’s confessions supplied graphic and horrifying detail into these murders for money. Defendant subsequently refused to testify against the others and went to trial on these two counts of first-degree murder. Defendant maintains now that his confession was per se involuntary.
Defendant did not challenge the voluntariness of this confession before or during trial. No Walker hearing was held or requested. Absent a finding of manifest injustice this issue has not been preserved for appellate review, MCLA 769.26; MSA 28.1096, People v Carroll, 396 Mich 408; 240 NW2d 722 (1976).
The record reveals that defendant initiated discussions concerning the "plea bargain”. Defendant even demanded that the agreement be in writing. Defendant was fully informed of all his Miranda rights several times. Defendant was represented and advised by counsel. There is no claim that defendant was illiterate, of unsound mind, was under coercion or duress, or in any other way deprived of the exercise of free will. Defendant was able to weigh all the circumstances involved. He freely chose to confess and reveal the facts herein. Defendant, however, later changed his mind and refused to live up to his end of the plea bargain and justifiably these charges were then brought. Defendant now argues that his confession was per se inadmissible. Based on the record below, we disagree. The trial court, following argument on the motion for new trial, found as follows:
"The trial record shows that after his arrest and after being told of his Miranda rights on apparently at least two different occasions, the defendant told the police he wanted to make a deal and that he would talk about some unsolved murders in the Benton Harbor area. The police called Prosecutor Smietanka, who in turn called the defendant’s attorney, Mr. David Peterson. Both attorneys then came to the jail.
"The record in this case shows that Attorney Peterson counselled privately with the defendant; then both attorneys met with the defendant who once again was informed of his rights not only by the prosecutor but also by his own attorney, Mr. Peterson. Defendant says he understood his rights and he wanted to waive them. Apparently not content with the verbal promises of an agreement by the prosecutor, the defendant got the agreement in writing, signed not only by him but apparently by the prosecutor, the defense counsel and one or two police officers. The defendant, it appears then, in the presence of his own attorney gave the calculated and the bloody details of the slaying of the Freemans with which we are concerned in this case.
"There is no claim that to get his confession beatings were used or that the defendant did not receive and understand his rights or that he is an illiterate or of unsound mind or was under the influence of any drug or alcohol or that he was denied his counsel or that he was tricked. There is no claim in this case that the prosecutor would not have kept his part of the plea agreement had the defendant done so.
"The claim, boiled down, is that even though he voluntarily and knowing his rights under the law furnished the details of the slayings which tied in or dovetailed with the evidence then known, the defendant had a right to violate his agreement and at the same time bar the prosecutor from showing the facts which he himself had supplied to the prosecutor.
"There is no case cited by either counsel on every point with the one with which we are now concerned. There certainly is no case in Michigan. The case that comes closest to our situation is that of Earl Gunsby v The State of Florida, found in 316 Southern Reporter 2d Series 313, decided by the District Court of Appeals of Florida, Second District, on July 2, 1975. I would like to quote from page 314 as follows:
" 'Appellant contends that since the agreement to testify against Smith was part of the plea bargain, his statement and subsequent deposition should not have been introduced in evidence against him after the plea bargain was set aside.’ Citing various cases which I will omit, but continuing the same paragraph, 'Appellant contends that his admissions were improperly introduced because they were not voluntary.’
"The appeal court in Florida quoted from the trial judge again at page 314 as follows; and this is the trial judge speaking quoted with apparent approval by the appeal court:
" 'This statement was made freely, voluntarily and in the full knowledge and presence of counsel and may not now be withdrawn. To allow this would sanction the total frustration of criminal justice in cases of multiple defendants merely by one of them doing as this defendant has done and then claiming relief from his wrongful act on the basis that since he has again been allowed to change his plea he should also be allowed to withdraw his sworn statement.’ That is the end of the quote of the trial judge.
"The appeal court continues on, however, speaking for itself, 'The Appellant brought on the problem by changing his testimony. He should not now be allowed to repudiate a statement which he made under oath’— departing for a moment, it’s conceded in this case of Langford this was not under oath, but continuing on in the quote — 'in the presence of counsel and after weighing his options, merely because he was guaranteed a sentence less than the maximum in return for it. On the peculiar set of facts of this case, the statement was properly admitted.’ And then the citation of another case from Oregon is omitted.
"The issue in Langford is whether an admitted killer, having violated his agreement he initiated and this court finds from this record voluntarily and knowingly made with the assistance of his own counsel to testify as to the details of the killings at the trial of his confederates, can prevent the prosecutor using such details in a later trial against him when the prosecutor has stood ready to fulfill his part of the agreement.
"It would be a shock to common sense and justice to so hold. This court knows of no such right. To cite cases where improper means were used to get a confession is to fail to appreciate the actual situation in this case and to further understand what is the law of the land and the state and what it prohibits. The law abhors forced or coerced confessions or those obtained unfairly by trickery or those taken from the ignorant or in violation of what today are called collectively Miranda rights. The basic reason is simple, that is, such confessions are not always reliable and may be false and further may be in violation of the defendant’s rights under the law. The law has correctly prohibited a defendant from being compelled to incriminate himself. Such is part of our basic national Constitution as well as state Constitution.
"The law has never, however, prohibited a person from waiving his constitutional protections against self-incrimination and voluntarily admitting his wrongs. This is no great phenomenon; it occurs every day in courts and it occurs in police stations and it occurs in schools and in homes and on the streets. One can admit his faults and it is possible for him to do it voluntarily and, if he does so, he may meet them at some later time.
"In this case for a valuable consideration and knowingly, voluntarily and after having had the advice and assistance of counsel, who is one of the most experienced criminal trial practioners, [sic] in this circuit anyway, the defendant waived his rights.”
The trial court then concluded:
"This court finds then that where a person, being fully advised, informed and knowing all of his rights in the law, who has present with him an attorney with whom he has consulted, initiates and secures a beneficial plea bargain for himself in return for supplying details of a crime in which he was involved and then waives his rights and without force or trickery supplies the details of the crime, subsequently and for his own reasons violates the agreement, then the prosecutor may in a prosecution of such person use the details so furnished.”
We agree on the basis of this record that defendant confessed voluntarily. No additional hearing is required nor is one available since defendant only properly challenged the admissibility of this confession on other grounds.
Defendant’s ineffective assistance of counsel argument is without merit. People v Garcia, 398 Mich 250; 247 NW2d 547 (1976).
Affirmed.
Defense counsel did challenge the admissibility of this confession on statutory grounds arguing that MCLA 750.157; MSA 28.354, precluded admission of this statement. Defendant’s challenge was unsuccessful and this issue is not before this Court.
People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966).
See Gunsby v State, 316 So 2d 313, 314 (Fla App, 1975), where the Court said:
"Thie appellant brought on the problem by changing his testimony. He should not now be allowed to repudiate a statement which he made under oath, in the presence of counsel and after weighing his options, merely because he was guaranteed a sentence less than the maximum in return for it. On the peculiar set of facts of this case, the statement was properly admitted.”
We express no opinion as to the result had the prosecution sought, encouraged, and solicited this plea bargain and subsequent confession. However, we doubt the admissibility of such a statement. See People v Pallister, 14 Mich App 139; 165 NW2d 319 (1968). A decision more nearly analogous to the instant case is People v Jordan, 34 Mich App 360; 191 NW2d 58 (1971), cert den 406 US 908; 92 S Ct 1616; 31 L Ed 2d 818 (1972). Herein the trial court found that defendant should not now be able to repudiate that waiver. People v Van Epps, 59 Mich App 277; 229 NW2d 414 (1975). | [
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Per Curiam.
Plaintiff is a podiatrist, licensed to practice as such in Michigan pursuant to 1915 PA 115, as amended, MCLA 338.301 et seq.; MSA 14.661 et seq. For some years he has been attempting to secure staff privileges at the River District Community Hospital, located in St. Clair County. Plaintiff submitted a formal application for such privileges in late 1969. When staff privileges had not been granted plaintiff by 1973, after several years of various administrative procedures, plaintiff filed suit against the hospital in St. Clair County Circuit Court. Plaintiff requested an injunction ordering the defendant hospital to grant him "full and complete staff privileges afforded to all other physicians and surgeons at defendant’s hospital”. Plaintiff also sought compensatory and exemplary damages in a combined amount of $450,000.
Motions by defendant for summary and accelerated judgment were denied prior to trial, and the parties agreed to submit the case on an agreed question of law, which was stated as follows:
"Whether a non-private community hospital is required to grant a licensed podiatrist full staff privileges identical to those of duly licensed physicians and surgeons on its medical staff.”
Briefs were submitted on this question by the parties and several amici curiae and the trial court issued an opinion on December 11, 1975. The ambiguity of the "agreed question” was revealed by the briefs, which discussed several related issues, as well as by the opinion. The opinion, citing MCLA 331.6; MSA 5.2456(6) and MCLA 331.422; MSA 14.1179(12), held that the fact that plaintiff had been granted a license to practice podiatry in Michigan did not in itself entitle plaintiff to full staff privileges at the defendant hospital as a matter of right and that the hospital had a right pursuant to the cited statutes to set forth eligibility requirements for an applicant in the position of plaintiff.
The opinion went on to say that a final decision in the case could not be reached unless and until three things were done:
"1. Defendant River District Community Hospital shall within thirty (30) days from date of this opinion submit to the plaintiff, Dr. David Touchton, D. P. M., a group of questions authorized under its rules and regulations as it applies to the plaintiff applicant, a licensed podiatrist.
"2. Plaintiff, Dr. David T. Touchton, D. P. M., shall have thirty (30) days from receipt of the above referred to questions to answer same in writing.
"3. Defendant, River District Community Hospital, shall have thirty (30) days upon receipt of written answers to act upon the application of plaintiff and shall notify the plaintiff of their decision. This decision shall be made by the duly authorized authority of the defendant hospital.”
Questions were submitted to plaintiff, plaintiff responded, and the hospital board denied plaintiff’s application on February 26, 1976.
Defendant then filed a motion for entry of judgment pursuant to the trial court’s opinion of December 11, 1975. On March 15, 1976, the trial judge entered a judgment holding, in accord with the previous opinion, that the governing body of the hospital had a right to determine the qualifications of practitioners in the hospital. Plaintiff’s complaint was ordered dismissed with prejudice.
Plaintiff appeals from the March 15, 1976, judgment. Again, the agreed question of law is said to be presented, and the parties argue various related issues under that question. Upon review, we conclude that the single issue actually decided below was correctly decided, but that dismissal of plaintiff’s action was unwarranted given the state of the record on other issues presented.
The single reviewable argument made by plaintiff concerns whether the defendant hospital has a right to set standards of eligibility to be met by licensed podiatrists seeking staff privileges. Plaintiff argues that MCLA 338.301; MSA 14.661 ren ders podiatrists to be "physicians and surgeons” within the meaning of MCLA 331.163; MSA 14.1142, which, in turn, is said to grant all "physicians and surgeons” the absolute right to practice in a public hospital without being required to meet any standards, or regulations in addition to those imposed by the body licensing such physicians and surgeons. In addition to these statutes, plaintiff relies upon Albert v Gogebic County Public Hospital Board of Trustees, 341 Mich 344; 67 NW2d 244 (1954).
In Albert, the Supreme Court construed several sections of the so-called county hospital act, 1913 PA 350, as amended, MCLA 331.151 et seq.; MSA 14.1131 et seq., as it then read. At that time, § 13 of that act read as follows:
"The patient shall have absolute right to employ at his or her own expense his or her own physician or nurse, and when acting for any patient in such hospital the physician employed by such patient shall have exclusive charge of the care and treatment of such patient, and nurses therein shall as to such patient be subject to the directions of such physician, subject always to such rules and regulations as shall be established by the board of trustees under the provisions of this act.” Former MCLA 331.163; MSA 14.1142.
Reading this provision in conjunction with two other sections of the act referring to rule making powers of the county hospital boards, the Court concluded that the license granted the plaintiff, Dr. Albert, by the State Board of Registration in Medicine to practice medicine and surgery in Michigan included practice in public hospitals and that no provision of the county hospital act suggested that "the hospital board may suspend, even partially, the license of a regularly licensed practitioner. Suspension is left with the State Board of Registration in Medicine”. Albert, supra, p 357.
Plaintiffs reliance on Albert is unwarranted. After that decision, § 13 of the county hospital act was amended by 1958 PA 105 to read as follows:
"Sec. 13. All physicians and surgeons licensed under the laws of Michigan shall have the privilege of treating patients in the hospital, subject always to such rules and regulations as shall be established by the board of trustees under the provisions of this act. The patient shall have the right to employ at his own expense his .own physician or nurse, and when acting for any patient in such hospital the physician employed by the patient shall have charge of the care and treatment of such patient.” MCLA 331.163; MSA 14.1142.
At the same time, § 11 of the act was also amended to read as follows:
"Sec. 11. When such hospital is established, the physicians, nurses, attendants, the persons sick therein and all persons approaching or coming within the limits of same, and all furniture and other articles used or brought there shall be subject to such rules, regulations and policies as said board, with the advice of the medical staff, may prescribe governing the operation of the hospital and the professional work, surgical privileges, conduct and maintenance' of proper medical records of and by the physicians and surgeons using said hospital facilities. The board of trustees of the hospital may deny hospital privileges and facilities to any physician or surgeon who violates any of the provisions of this act or any rules, regulations or policies adopted under the provisions of this act.” MCLA 331.161; MSA 14.1140.
It seems clear that by virtue of 1958 PA 105, the Legislature intended to and did overrule the Al bert decision, based as it was purely on statutory construction.
The defendant in this case is a community hospital organized and operating pursuant to 1945 PA 47, as amended, MCLA 331.1 et seq.; MSA 5.2456(1) et seq. That act provides for the creation of a hospital board, which is given the following authority in § 6 of the act:
"The board shall adopt bylaws, rules and policies governing the operation and professional work of the hospital and the eligibility and qualifications of its medical staff. Physicians, nurses, attendants, employees, patients and persons approaching or on the premises of the hospital and furniture, equipment and other articles used or brought thereon shall be subject to such bylaws, rules and policies as the hospital board may adopt or authorize to be adopted. The board may deny or revoke staff membership, suspend or reduce hospital privileges to a physician who violates any provision of the medical staff bylaws, rules and policies.” MCLA 331.6; MSA 5.2456(6).
The right of the medical advisory committee of a community hospital, with the approval of the hospital board of a hospital organized under this act, to adopt rules, regulations and policies governing the eligibility and qualifications of their medical staff was seemingly acknowledged by the Supreme Court in Milford v Peoples Community Hospital Authority, 380 Mich 49, 57; 155 NW2d 835 (1968). That case went on to hold that upon restricting the privileges of a staff member, a public hospital is required to accord the staff member notice and a hearing and make a decision pursuant to reasonably precise standards.
Thus it is clear that the trial court ruled correctly on plaintiff’s most extravagant claim. The defendant hospital has the right to adopt rules, regulations and policies governing the eligibility and qualifications of their medical staff. But merely answering this question does not decide this case.
Other issues were argued by the parties in the trial court as well as on appeal as falling under the agreed question of law. Plaintiff makes a less sweeping claim that as a duly licensed podiatrist, he has a right to practice in public hospitals equal to that possessed by doctors of medicine, though within the limits of his license, and that he was denied that right. This is an issue within the agreed question of law, argued by the parties, but incapable of resolution absent some factfinding as to the hospital’s policies, rules and regulations regarding podiatrists in general and its actions regarding plaintiffs application.
Another issue which plaintiff has raised, and which the parties have argued both at trial and on appeal, is that the hospital’s denial of plaintiff’s application was arbitrary and capricious and amounted to a denial of due process. The trial court appears to have had this issue in mind upon ordering defendant to submit questions to plaintiff and act upon plaintiff’s responses prior to entering a final judgment. However, upon entering final judgment, the trial court made no reference to the questions, answers, or actions by defendant and did not address the issue. Again, findings of fact would appear necessary to permit resolution of this issue.
The same can be said about plaintiffs final argument, that he was denied equal protection of the laws.
Thus it appears that the trial court’s order dismissing plaintiffs complaint was entered prematurely. We can affirm the trial court ruling that defendant has the right to regulate qualifications of persons seeking to practice in the hospital. However, we must reverse the dismissal of plaintiffs complaint and remand the case for trial, findings of fact, and conclusions of law on the remaining issues presented.
Affirmed in part, reversed in part. Remanded for further proceedings. Costs to abide the final result.
That section reads as follows:
"Sec. 1. As used in this act, 'podiatrist’ or 'chiropodist’ means a physician and surgeon who examines, diagnoses, and treats abnormal nails, superficial excrescences occurring on the hands and feet, including corns, warts, callosities, bunions, and arch troubles or one who treats medically, surgically, mechanically, or by physiotherapy, ailments of the human foot, or one who is qualified as a podiatrist or chiropodist within the meaning of this act, except as hereinafter provided, through a certificate of qualification or license issued by the board of registration in podiatry. The words 'chiropodist’, 'chiropody’, and 'chiropodical’ are synonymous with the words 'podiatrist’, 'podiatry’, and 'podiatric’.”
But see MCLA 338.308; MSA 14.669, providing in part as follows:
"The name or title 'physician and surgeon’ as used in this act shall not confer any privileges of practice upon any podiatrist other than those specifically conferred by the language in section 1 of this act * * * .” | [
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] |
T. M. Burns, J.
Tel-Ex sought damages for Hardees’ breach of an agreement to enter into a build-to-suit lease. The trial court found that Hardees breached the lease but that Tel-Ex had failed to prove any damages. Costs were awarded to neither party. Both parties appeal, each raising one issue.
On October 24, 1971, the parties entered into an agreement to enter into a build-to-suit lease involving a parcel of land located at 10 Mile Road and Telegraph Road in Southfield. Basically, TelEx agreed to construct a $120,000 building and Hardees agreed to pay $26,500 per year for 20 years. Hardees was permitted to erect a free-stand ing sign, subject to governmental requirements. An adjoining parcel of land had been leased by Tel-Ex to Ponderosa Steak House.
In November, 1971, Ponderosa cancelled its lease with Tel-Ex. Tel-Ex leased the land to Elias Brothers Big Boy Restaurant.
In April, 1972, Hardees cancelled the lease agreement because it had been refused a sign permit. Hardees was also concerned about the change in neighbors from a remote competitor to a direct competitor.
Tel-Ex eventually leased the Hardees parcel to Elias Brothers for use as a Roy Rogers Restaurant. Under the Roy Rogers lease, Big Boy erected its own building and agreed to pay $18,000 per year for 15 years.
The only issue of substance is whether Tel-Ex has suffered damages as a result of Hardees’ breach of the agreement.
Tel-Ex computes its damages by taking the total rent payable under the Hardees lease, deducting the cost of the proposed building and deducting the gross rentals due under the Roy Rogers lease:
Hardees Rent ($26,500 X 20 years) $530,000
Cost of Proposed Building — 120,000
$410,000
Rent Due from Roy Rogers — 270,000
($18,000 X 15 years)
Damages $140,000
In offering the argument that Tel-Ex suffered no damages, Hardees utilized two different measures of damages. Under the first theory Tel-Ex’s damages of $140,000 is completely offset by the return on Tel-Ex’s investment of the $120,000 savings in low-risk, high grade bonds. Hardees’ second theory was based on expert testimony to the effect that the Roy Rogers lease had a greater market value than the Hardees lease. The trial court accepted Hardees’ theories.
Although incorrect measures of damages were employed below, we agree that Tel-Ex has suffered no damages.
The general measure of damages applied where an agreement to lease is breached by the prospective lessee is the excess of the agreed rent over the rental value of the property, or the rent plaintiff could obtain for the property through reasonable diligence. Application of this measure alone would easily resolve the dispute in the instant case. However, factors other than mere agreed rent and rental value are involved and formulation of a fair remedy requires consideration of broader concepts.
The goal in awarding damages for breach of contract is to give the innocent party the benefit of his bargain — to place him in a position equivalent to that which he would have attained had the contract been performed. The injured party, however, must make every reasonable effort to minimize the loss suffered, and the damages must be reduced by any benefits accruing to the plaintiff as a consequence of the breach. In other words, under the avoidable consequences doctrine, the plaintiff is not allowed to recover for losses he could have avoided by reasonable effort or expenditure. He has a duty to do whatever may reasonably be done to minimize his loss. Closely related to the avoidable consequences rule is the requirement that any benefit to the plaintiff arising from or as a result of the breach must reduce the damages otherwise payable.
Applying the above rules to the facts before us, the agreed rent was $26,500 for 20 years or $530,-000. The rental value of the property without improvements (presumably established by the parties as the rent payable under the Roy Rogers lease) was $18,000 for 15 years or $360,000 over 20 years. The excess of agreed rent over rental value is $170,000. Had the terms of the two leases been identical and without other consequences of significance, Tel-Ex’s damages would be $170,000. We must, however, account for such differences and compare Tel-Ex’s financial positions under the two leases.
Roughly, under the Hardees lease, Tel-Ex would receive $530,000 in exchange for the lease of the property and the construction of a building costing at least $120,000. At the expiration of the lease the building was to belong to Tel-Ex. Under the Roy Rogers lease, Tel-Ex received a total of $270,-000. The tenant was required to erect a building at its own expense and at the expiration of the lease the building was to belong to Tel-Ex.
In reducing the $170,000 damages by savings made due to the breach and the value of benefits derived from the breach, there is no argument that the saving of the $120,000 building must be included. This reduces the damages to $50,000. Not only has Tel-Ex saved $120,000, moreover, it has received the value of $120,000, which rested in a checking account at the time of trial. Thus, an other benefit to Tel-Ex resulting from the breach is the value of the $120,000 savings, not just the savings alone. We do not agree with Hardees that Tel-Ex should be credited with the potential return on investment of the fund in some low-risk venture. Tel-Ex has no duty to risk its money in an effort to minimize its loss. We do, however, recognize the inherent earning power of money and deem it proper to appreciate the $120,000 figure to account for its value to Tel-Ex. We adopt as a reasonable measure of that value the statutory, legal rate of interest of 5 percent per annum. Reducing the $50,000 damages by the simple interest on $120,000 at 5 percent over a 20 year period ($120,000), we find that Tel-Ex has suffered no loss. We thus find, as did the trial court, that no damages were shown.
On cross-appeal Hardees argues that the trial court erred in not awarding costs to it as the prevailing party. GCR 1963, 526.1. We find no abuse of discretion or violation of the court rule in the decision of the trial court refusing to award costs.
Affirmed. No costs.
For example, an investment of $120,000 in bonds paying 7.45 percent would yield $178,800 over 20 years.
See 49 Am Jur 2d, Landlord & Tenant, § 23, p 66, 51C CJS, Landlord & Tenant, § 201, pp 516-517.
Maraldo Asphalt Paving, Inc v Harry D Osgood Co, Inc, 53 Mich App 324, 326; 220 NW2d 50 (1974), Greenstine v Srere, 222 Mich 25; 192 NW 676 (1923).
Goodwin, Inc v Orson E Coe Pontiac, Inc (Supplemental Opinion), 62 Mich App 405, 413; 233 NW2d 598 (1975).
See Dobbs, Remedies, § 3.7, p 186.
Freeman v Lanning Corp, 61 Mich App 527, 529; 233 NW2d 68 (1975).
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A. C. Miller, J.
This presents another facet of the many problems arising under the Michigan no-fault insurance act, MCLA 500.3101 et seq.; MSA 24.13101 et seq. Two cases were consolidated on appeal because both present the problem of recovery by a motorcyclist where the motorcyclist collided with an automobile covered by a no-fault policy and where the motorcyclist was covered by the no-fault policy on the family car, which contained a $5,000 deductible on the personal protection insurance.
In the first case plaintiff Davidson was operating a motorcycle and was the "named insured” in a policy on the family car issued by Citizens Mutual Insurance Company. The policy was issued pursuant to MCLA 500.3109(3); MSA 24.13109(3), which provided:
"An insurer providing personal protection insurance benefits may offer, at appropriately reduced premium rates, a deductible of a specified dollar amount which does not exceed $300.00 per accident. This deductible may be applicable to all or any specified types of personal protection insurance benefits but shall apply only to benefits payable to the person named in the policy, his spouse and any relative of either domiciled in the same household. Any other deductible provisions require the prior approval of the commissioner.”
At that time the commissioner approved a $5,000 deductible. Defendant Johnson was the owner and operator of the automobile involved and was cov ered by a no-fault policy issued by The Farm Bureau Insurance Group. Both insurance companies were joined as defendants.
Plaintiff initially filed a common law action, but later amended to claim no-fault benefits against one or the other of the insurance companies. The facts were stipulated and the court granted plaintiff’s motion for summary judgment and ordered defendant Farm Bureau to pay no-fault benefits to plaintiff, denied the property damage claim and denied all claims against defendants Johnson and Citizens.
The principal issue is the validity of the deductible provision and the priority of insurance coverage. Property damage and attorney fee issues are also raised.
In the second case plaintiff Vander Zyl was operating a motorcycle and an accident occurred with an automobile owned and operated by defendant Danevicz. Plaintiff was covered as a "named insured” by a policy issued by defendant State Farm Mutual Automobile Insurance Company containing the same deductible mentioned above. Plaintiff complained against Danevicz for the no-fault benefits and for residual losses. The latter filed a third-party complaint against State Farm for indemnity.
Plaintiff was awarded $25,000 by jury, and as a precaution to avert retrial, the court requested the jury to separate the damages. It awarded $11,000 no-fault benefits and $14,000 non-economic losses.
The right of the motorcyclist to proceed under the no-fault act was considered in Underhill v Safeco Insurance Co, 76 Mich App 13; 255 NW2d 349 (1976). In that case it was reasoned that the operator of a motorcycle was "not an occupant of a motor vehicle” and therefore not required to main tain no-fault insurance and could recover against the policy covering the automobile involved in the accident under MCLA 500.3101(1); MSA 24.13101(1), which provides in part:
"The owner or registrant of a motor vehicle required to be registered in this state shall maintain security for payment of benefits under personal protection insurance, property protection insurance and residual liability insurance.”
The Court went on to say:
"Since, in the instant case, plaintiff was not operating a 'motor vehicle’ under the act he was not required to maintain security for the payment of personal protection insurance benefits. However, since defendant’s insured was the owner of a four-wheel vehicle, he was required to maintain security for the payment of personal protection insurance benefits. Further, because plaintiff was not the owner of a 'motor vehicle’ which was involved in the accident, he is not precluded from receiving benefits under the exclusion provided in MCLA 500.3113; MSA 24.13113. MCLA 500.3115; MSA 24.13115 provides that an individual who suffers accidental bodily injury while not an occupant of a motor vehicle shall claim personal protection insurance benefits first from the insurers of owners or registrants of motor vehicles which are involved in the accident. This is precisely the action plaintiff took and precisely the action upheld by the court below.” 76 Mich App at 15.
This logic is persuasive and is adopted. The motorcyclist can recover (in the same way as a pedestrian) upon the no-fault policy covering the automobile involved in the accident.
Section 3115 provides:
"Except as provided in subsection (1) of section 3114, a person suffering accidental bodily injury while not an occupant of a motor vehicle shall claim personal protection insurance benefits from insurers in the following order of priority:
(a) Insurers of owners or registrants of motor vehicles involved in the accident.
(b) Insurers of operators of motor vehicles involved in the accident.”
This should be read with the primary § 3105:
"(1) Under personal protection insurance an insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle, subject to the provisions of this chapter.”
One can see the legislative intent to tie responsibility to the motor vehicle involved in the accident. If there are two motor vehicles, then each party recovers upon his own policy, but it is farfetched to reach other insurance just because it might be construed to apply where not required by the act. Statutes must be read so as to harmonize, to be constitutional. We are asked to declare the troublesome § 3109 unconstitutional as a denial of the Equal Protection Clause (US Const, Am XIV) or as a violation of the separation of powers (Const 1963, art 3, § 2) between legislative and administrative bodies. This inquiry is suggested because of the difficulty in reconciling §§ 3114 and 3115. The public is better served by an interpretation of the sections that will result in certainty, rather than further declarations of invalidity and uncertainty. Where a motor vehicle is involved, the insurance on that vehicle shall be primary. Where a section of the statute deals with nonoccupants, it shall be given meaning. Cross-references in statutes should not be used to pervert an otherwise harmonious statutory scheme. Section 3114 deals with occu pants. Section 3115 refers to nonoccupants throughout and we are dealing with a nonoccupant. The cross-reference in substance means "except when an occupant”. There being only one motor vehicle involved, its coverage must bear the responsibility for the no-fault losses. The fact that by happenstance plaintiff had some nonrequired coverage does not alter the liability of the insurer of the motor vehicle involved in the accident.
We thus arrive at the same result as the trial judge on the principal issue.
The court in Davidson denied the property damage claim for the motorcycle itself on the basis of Shavers v Attorney General, 65 Mich App 355; 237 NW2d 325 (1975), where Judge Horace Gilmore’s ruling in part provided:
"G. * * * As a further consequence, the residual liability insurance coverage required by Section 3131 of The Act includes property damage liability.” Id., at 361
and which was affirmed, quoting from page 370:
"We therefore hold that the property damage provisions are violative of equal protection.”
and page 372:
"Paragraphs A, G and I of the Declaratory Judgment are affirmed;”
Since the parties stipulated to fault, property damages were properly recoverable from defendants’ insurers. The trial court’s ruling in Davidson, to this extent, is reversed. An additional $730 plus interest should be added to plaintiff Davidson’s recovery against Johnson.
The trial court denied attorneys fees. Section 3148(1) of the no-fault act, MCLA 500.3148(1); MSA 24.13148(1), provides:
"An attorney is entitled to a reasonable fee for advising and representing a claimant in an action for personal or property protection insurance benefits which are overdue. The attorney’s fee shall be a charge against the insurer in addition to the benefits recovered, if the court finds that the insurer unreasonably refused to pay the claim or unreasonably delayed in making proper payment.”
Thus, attorney fees are only to be charged against an insurer upon a finding that the insurer "unreasonably” delayed payment or refused to pay. Because of the substantial constitutional and statutory construction issues raised in the instant case, it cannot be said that the refusals of both insurers to pay the claimed benefits were "unreasonable”. The trial court’s denial of attorney fees was proper.
In Davidson, the trial court is affirmed except as to the property damage item of $730 which should be,added to plaintiffs recovery. In Vander Zyl, the entire judgment of $25,000 should be paid by defendant Danevicz and his insurer. The subrogation judgment over against State Farm is reversed and held for naught. Costs may be taxed in both cases.
Section 3109a was added by 1974 PA 72, and at that time the commissioner rescinded the $5,000 deductible authorization and permitted an additional premium for the endorsement. | [
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Quinn, J.
This wrongful death action based on alleged negligence and nuisance was disposed of in the trial court by summary judgment, GCR 1963, 117.2(1), in favor of defendant. Plaintiff appeals.
Accepting the well-pleaded facts to be true, does the complaint state a claim upon which relief can be granted?
The pertinent facts alleged are:
1. As part of its urban renewal program, defendant owned a vacant house located at 4736 Lincoln, Detroit. On or about May 1, 1975, the body of plaintiffs decedent was found therein dead of strangulation. (Plaintiffs conclusions that her decedent was taken there against her will and strangled to death are not accepted as facts.)
2. Defendant knew, or should have known, that wrongdoers were in the habit of entering the house and performing unlawful acts therein.
3. That entrances to the house were not locked and the windows were not boarded up. Inspection of the premises was not made.
Thereafter, certain duties allegedly owed by defendant to the general public and to plaintiffs decedent with reference to the vacant house are stated. However, _ the complaint does not allege ultimate facts showing the relationship out of which arose the duty of defendant to exercise appropriate care with reference to the rights of plaintiffs decedent, nor the negligent act of omission or commission for which defendant is responsible, that proximately caused the death. Such allegations are essential to state a claim upon which relief can be granted, Gonzalez v Pensacola, 65 Fla 241; 61 So 503 (1913).
Affirmed without costs. | [
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D. C. Riley, J.
Following a long and tortuous procedural path involving a district court, a circuit court, various panels of the Court of Appeals, and the Supreme Court, the case at bar presents itself for our resolution. While retracing that circuitous route might prove interesting to scholars of legal procedure, we choose to dispense as much as possible with so fruitless an undertaking and proceed instead to the more significant substantive matters involved.
I.
The record reflects that on August 1, 1974, an assistant prosecutor in Washtenaw County, acting on the request of an Ypsilanti police officer, authorized prosecution of defendants Joslin and Christante for violation of Michigan’s Controlled Substances Act, MCLA 335.301 et seq.; MSA 18.1070(1). On that day, complaints were filed against the defendants and warrants were issued charging possession of marijuana with intent to deliver, a felony carrying a maximum penalty of 4 years imprisonment and $2,000 fine. MCLA 335.341(l)(c); MSA 18.1070(41)(l)(c).
On September 19, 1974, defendants filed motions before the district court to dismiss the charges on the ground that the instant prosecution contravened Ypsilanti City Ordinance No 437, which "has been held a lawful enactment by the Circuit Court for the County of Washtenaw”. Specifically, defendants argued that the Ypsilanti police officer who had filed the complaint in this matter had violated § (d) of the ordinance by taking the case to the Washtenaw County Prosecutor rather than to the Ypsilanti City Attorney as the ordinance requires.
In the circuit court decision on which defendants relied, Ypsilanti Police Officers’ Association v City of Ypsilanti, No 74-9222-CL, an action for declaratory judgment decided on August 21, 1974, Judge Patrick J. Conlin had declared the ordinance valid and constitutional in all but one respect. Interpreting § (d) of the ordinance, Judge Conlin upheld that part of the section requiring city police officers to refer marijuana violations to the city attorney but invalidated the remainder of the section limiting the city attorney’s ability to refer complaints to any other authority for prosecution. The court ruled instead that the city attorney, once apprised by a city policeman of a marijuana violation, may elect either to proceed under the ordinance or to refer the matter to the county prosecutor for disposition under state law. For reasons unknown to this panel, however, Judge Conlin did not issue an order of declaratory judgment until March 4, 1975, over 6 months from the decision date of his opinion.
Thus, on October 3, 1974, when District Judge Thomas F. Shea ruled on defendants’ motions to dismiss the state charges, Judge Conlin’s order of declaratory judgment had not yet been entered. Though aware of the prior decision in circuit court upholding most of the ordinance, Judge Shea nonetheless denied defendants’ motions and voided the ordinance in its entirety.
Defendants then sought an order of superintending control before Judge Conlin in the circuit court. By written opinion of October 16, 1974, Judge Conlin, alluding to his prior decision in Ypsilanti Police Officers’ Association, supra, held that a district judge may not overrule a prior, relevant decision of a circuit judge located in the same county. Judge Conlin then instructed Judge Shea "to treat the Ypsilanti ordinance as a valid enactment in this and -all future cases”. Although at the time Judge Conlin did not order the charges against defendants dismissed, he later so ruled while this case awaited appellate resolution. We issued a stay of Judge Conlin’s order of dismissal pending our decision in the cause.
II.
At the outset, we must acknowledge that this case represents a woeful example of an adversary proceeding. The parties apparently have chosen to avoid at all costs any discussion of opposing arguments. The Washtenaw County Prosecutor, mounting a broad-based constitutional and statutory attack, would have us nullify the ordinance in toto. Conversely, counsel for defendant Christante, raising various procedural objections, contends that we should abstain where possible from discussion of constitutional issues. Moreover, neither defendant Joslin nor the Ypsilanti City Attorney have participated in the case on this appeal.
Given, then, these unilateral arguments and our recognition that the underlying issues transcend the interests of the instant parties, we proceed to resolve only those questions pertaining to the facts at hand.
Of the three contentions advanced by defendant Christante, one has already been decided by a prior panel of this Court and another is without merit. The third involves the question whether a decision of a circuit judge upholding a municipal ordinance is binding on a district judge 'Sitting in the same county. Although the question is intriguing, its answer must await another day. As noted, Judge Conlin had not yet issued his order of declaratory judgment sustaining the ordinance when Judge Shea denied defendants’ motions to dismiss. Since a court speaks through its orders, not its opinions, Jones v Hicks, 358 Mich 474, 485; 100 NW2d 243 (1960), In re Spalter, 31 Mich App 458, 464; 188 NW2d 67 (1971), we hold that there was no circuit-court order extant that could bind the district judge.
Of the prosecutor’s arguments, only one is necessarily invoked on the facts at bar. The prosecutor charges that § (d) of the ordinance impermissibly restrains Ypsilanti police officers from enforcing state law. We agree.
By its terms, § (d) purports to prevent the Ypsilanti police from complaining to anyone but the city attorney about marijuana violations. The law is clear, however, that municipal police are authorized to enforce state law. MCLA 764.15; MSA 28.874 ("Any peace officer may, without a warrant, arrest a person — (a) For the commission of any felony or misdemeanor committed in his presence; [or] (b) When such person has committed a felony although not in the presence of the officer”). See also, Odinetz v Budds, 315 Mich 512; 24 NW2d 193 (1946). The power of a city to enact ordinances "relating to its municipal concerns, property and government, [is] subject to the constitution and law”. Const. 1963, art 7, § 22.
Accordingly, to the extent § (d) limits the authority of city police to enforce state law, we hold it void. Hence the district court properly denied defendants’ motions to dismiss the state charges, § (d) of the ordinance being no bar to prosecution under the Controlled Substances Act.
We expect that municipal police officers in performing their dual functions as representatives of the city and state will exercise their considerable discretion, 16 McQuillin, Municipal Corporations (3d ed), § 45.15, p 616, in a rational, evenhanded manner. The day may soon arrive, however, when the legitimate exercise of that discretion causes this Court and ultimately the Supreme Court to be confronted with the issues left unresolved by today’s decision.
Whatever the judgment eventually pronounced on the validity of the remaining portions of the ordinance, we must recognize that a sizable contingent of our citizens, as well as the administrations in Lansing and Washington, no longer view as effective, necessary or reasonable the present crim inal sanctions punishing possession by adults of small amounts of marijuana.
To be sure, this question of policy is best addressed to the Legislature. But perhaps the time has arrived for our lawmakers to see the handwriting on the wall. In light of the developing trend toward decriminalization in the states, the time seems ripe for a responsive Legislature to reexamine the issue. If after thorough inquiry, Michigan declines to follow the lead of Oregon, California, Ohio, Maine, Minnesota, Colorado, Alaska and South Dakota, then perhaps it will opt for an intermediate step, namely, delegating express authority to the cities to enact ordinances lessening current state penalties. Cf., People v Hanrahan, 75 Mich 611; 42 NW 1124 (1889).
The courts, too, have a significant role to play. The question deferred in People v Alexander, 56 Mich App 400, 404; 223 NW2d 750 (1974)— whether the private possession or use of marijuana is a protected right — can only be postponed so long. Perhaps a panel of this Court, or a majority of the Supreme Court, may soon decide (based on briefs and argument that fully ventilate the issue) Whether to adopt the view previously expressed by now Chief Justice Thomas G. Kavanagh:
"As I understand our constitutional concept of government, an individual is free to do whatever he pleases, so long as he does not interfere with the rights of his neighbor or of society, and no government — state or Federal — has been ceded the authority to interfere with that freedom. As has been said:
" '[T]he sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of these number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral is not a sufficient warrant.’ J. S. Mill, On Liberty, Chapter 1.
"Whatever the validity of the concept that traffic in marijuana is freighted with a proper public interest, it is extending the concept entirely too far to sanction proscription of possession and private use of it. Although it is conceivable that some legitimate public interest might warrant state interference with what an individual consumes, 'Big Brother’ cannot, in the name of Public health, dictate to anyone what he can eat or drink or smoke in the privacy of his own home.
"In my view when the legislature proscribed the possession and private use of marijuana as a Public health measure it did so unconstitutionally.” People v Sinclair, 387 Mich 91, 133-134; 194 NW2d 878 (1972). (Emphasis in original.)
Even if this position cannot garner the requisite consensus, the courts may yet subscribe to the recent holding of the Alaska Supreme Court in Ravin v State, 537 P2d 494, 511 (1975):
"[W]e conclude that no adequate justification for the state’s intrusion into the citizen’s right to privacy by its prohibition of possession of marijuana by an adult for personal consumption in the home has been shown. The privacy of the individual’s home cannot be breached absent a persuasive showing of a close and substantial relationship of the intrusion to a legitimate governmental interest. Here, mere scientific doubts will not suffice. The state must demonstrate a need based on proof that the public health or welfare will in fact suffer if the controls are not applied.
"The state has a legitimate concern with avoiding the spread of marijuana use to adolescents who may not be equipped with the maturity to handle the experience prudently, as well as a legitimate concern with the problem of driving under the influence of marijuana. Yet these interests are insufficient to justify intrusions into the rights of adults in the privacy of their own homes.” (Footnote omitted.)
We quote these extracts from prior cases not to express our personal views (indeed, we agree with the Ravin court that the use of any psychoactive drugs should be discouraged, id.), but rather to emphasize the need for an evaluation of whether the present mode of discouragement is appropriate or permissible.
The orders of superintending control issued by the circuit court are vacated. Prosecution of defendants under state law may proceed.
Beasley, J., concurred.
The record does not disclose the quantity of marijuana defendants allegedly possessed. At oral argument the prosecutor stated, and defense counsel did not dispute the point, that approximately 100 pounds were involved. We presume this figure is accurate.
Ypsilanti Ordinance No 437, enacted by referendum election on April 1, 1974, provides:
" 'AN ORDINANCE ESTABLISHING RESTRICTIONS ON MARIJUANA AND PENALTIES FOR THE VIOLATIONS THEREOF’
"BE IT HEREBY ORDAINED BY THE CITY OF YPSILANTI:
"(a) No person shall possess, control, use, give away, or sell marijuana or cannabis, which is defined as all parts of the plant cannabis sativa L., whether growing or not; its seed or resin; and every compound, manufacture, salt, derivative, mixture, or preparation of the above, unless such possession, control, use, or sale is pursuant to a license or prescription as provided in Public Act 196 of 1971, as amended. This definition does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compounds, manufacture, sale, derivative, mixture or preparation of the mature stalks, except the resin extracted therefrom, fiber, oil or cake, or the sterilized seed of the plant which is incapable of germination.
"(b) Any violation of this section shall be subject to a sentence of up to FIVE DOLLARS ($5), including judgment fees and costs, and no probation or any other punitive or rehabilitative measure shall be imposed, provided, however, that this Section shall not be construed to prohibit deferred sentencing. The District Court Clerk shall accept any plea of guilty which is made in the same manner as pleas of guilty for moving traffic violations are accepted as of October, 1973. Persons pleading guilty of violations of this Section shall be allowed to render the sum of FIVE DOLLARS ($5) to the District Court Clerk as a full and complete satisfaction and discharge of liability, and no appearance before a District Judge or other judicial Officer shall be required. In any prosecution for violation of this Section the burden of establishing any license or prescription shall be upon the defendant but this does not shift the burden of proof for the violation.
"(c) In all arrests and prosecutions for violations of this Section, appearance tickets and the relevant procedures set forth in Public Act 147 of 1968, as amended, shall be used.
"(d) No Ypsilanti police officer, or his or her agent, shall complain of the possession, control, use, giving away, or sale of marijuana or cannabis to any other authority except the Ypsilanti City Attorney, and the City Attorney shall not refer any said complaint to any other authority for prosecution.
"(e) Should the State of Michigan enact lesser penalties than that set forth in (b) above, or entirely repeal penalties for the possession, control, use, giving away, or sale of marijuana or cannabis, then this Section, or the relevant portions thereof shall be null and void.
"(f) The People of the City of Ypsilanti specifically determine that the provisions herein contained concerning marijuana or cannabis are necessary to serve the local purposes of providing just and equitable legal treatment of the citizens of this community, and in particular of the youth of this community present as University students or otherwise; and to provide for the public peace and safety by preserving the respect of such citizens for the law and law enforcement agencies of the City. Such provisions are necessary within the City because of the widespread local use of marijuana or cannabis.
"(g) If any portion of this ordinance is ruled unconstitutional or otherwise illegal, the balance of this ordinance shall remain in full force and effect.”
No appeal was ever taken from the order of declaratory judgment.
Besides Ypsilanti, other Michigan cities have significantly reduced criminal penalties for marijuana violations. See Ann Arbor Charter, § 16.2 (charter amendment adopted by referendum vote, using language substantially similar to the Ypsilanti ordinance) and East Lansing ordinances, ch 108, §§ 9.107-9.110 (regulation enacted by city council, applying solely to possession and use of marijuana).
With regard to the latter ordinance, the East Lansing City Attorney has informed the Court by letter that:
"Our office and the Police Department have found this ordinance to be a most affective [sic] tool in dealing with these types of violations, especially with respect to first offenders, or persons who are not otherwise identified to be dealers or distributors. It applies a modest sanction for this offense, but allows us to deal with it on a most cost effective basis, as opposed to prosecution under the State Statutes as a high misdemeanor. ” (Emphasis added.)
Governor William G. Milliken recently observed:
"An area which requires more evaluation is the issue of legalizing the use of marijuana. I continue to oppose the legalization in view of the lack of scientific evidence as to its safe use. But I continue to believe that far too much importance is being placed on the arrest and prosecution of individuals who may possess a small amount of this substance for personal use. I believe that the Legislature should act to reduce the penalties for possession of small amounts of marijuana in order that we might devote more of our limited crime-fighting resources to the battle against hard drugs and more serious crimes.” Michigan State of the State Message, January, 1977, p 56.
As reported in NY Times, March 15, 1977, § A, at 30:
"Dr. Peter G. Bourne, [President] Carter’s choice to head the Office of Drug Abuse Policy, told a special House committee on narcotics that the Administration 'will continue to discourage marijuana use, but we feel criminal penalties that brand otherwise law-abiding people for life are neither an effective nor an appropriate deterrent.’ ”
Similarly, see Erickson, Deterrence and Deviance: The Example of Cannabis Prohibition, 67 J Crim L & C 222 (1976).
See Ore Rev Stat § 167.207(3); West’s Ann Cal Health and Safety Code §11357 (1977 Supp); Ohio Rev Code § 2925.11(c)(3), (D) (1976 Supp); Maine Rev Stat Ann, tit 17-A, §§ 1101, 1114; tit 22, § 2383 (1975 Supp); Minn Stat Ann § 152.15 (1977 Cum Supp); Colo Rev Stat Ann § 12-22-412 (1976 Supp); Alaska Stat § 17.12.110(dMf), as enacted, ch 110, Session Laws of Alaska (1975); and ch 158, 1976 Session Laws of South Dakota, § 42-6. See also NY Times, April 1, 1977, § A, at 10. | [
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] |
N. J. Kaufman, J.
This case involves the discharge of plaintiff as an administrative assistant to the Macomb County Health Department. It is plaintiff’s position that this action resulted solely from plaintiff’s letter-writing activities which criticized the actions of various local elected officials as inimical to the welfare of the county’s residents. Plaintiff claims it is too plain for argument that this dismissal impermissibly punishes the exercise of his First Amendment rights to speak freely on matters of public concern; accordingly, correction of this alleged egregious injury was requested by way of a variety of remedies set forth in plaintiff’s complaint in the Macomb County Circuit Court. First, plaintiff requested that a writ of mandamus issue directing that he be reinstated to his former position of employment, citing violations of 42 USCA 1983 as justification for the necessity of the relief. Next, damages were asked for, resulting from the purported violations of 42 USCA 1985. Finally, the original complaint was amended to include a request for temporary and permanent injunctive relief against the defendants because of their continued wrongful actions in denying him his employment, again citing 42 USCA 1983 in support. All of plaintiff’s contentions were either rejected or not ruled upon by the circuit judge and are here now on appeal, as the circuit judge was of the view that mandamus or any other type of injunctive relief was inappropriate in the instant case and, therefore, granted the defendants their requested summary judgment.
As noted above, the case was spawned by the prolific pen of the plaintiff. Plaintiff’s days as a writer began in December, 1974, when he composed the first of 13 letters to the Macomb Daily, a daily newspaper distributed in the Macomb County area, expressing his disagreement with the actions of certain elected officials. (See Appendix A.) None of these letters disclosed plaintiffs position within the county’s bureaucracy; instead, they appeared to be the voicings of a concerned citizen.
Plaintiff’s letter-writing did not stop here. He was not adverse to composing a letter or two to the particular official with whom he was displeased. Specifically, on July 20, 1976, plaintiff wrote a letter to Robert Verkuilen, chairman of the Macomb County Board of Commissioners, voicing his objections to the actions of the board, with particular emphasis on what he perceived to be unwise fiscal expenditures. (See Appendix B.)
The record indicates that the force and vitality of plaintiff’s remarks were not well received by the members of the board. As a result of this letter, the following occurred, as testified to by Dr. Leland Brown, director of the health department, in his deposition:
"Q Could you describe the substance of your meeting with Mr. Pilarowski on July 28th, 1976 at which time he was fired? Basically what transpired?
"A Basically I asked him if he wouldn’t step in my office when he had a moment in whatever it was he was doing. When he finished, he came in.
"I handed him a copy of whatever letter it was and asked him, did you indeed write this, since the one I had was not signed, signature didn’t appear on it.
"He acknowledged the letter. And I indicated to him that we had talked about this problem of his activities contributing to the deteriorating public relations we were having with the political entity and that he was, therefore, terminated.
"Q Could you describe the document that you had in your hand at the time?
"A It was a copy of a letter from Mr. Pilarowski to, I believe, Mr. Verkuilen with a copy to Lou Gordon.
"Q Could you describe how it came about that you had possession of this letter?
"A Yes. Sometime late in the afternoon of the, I believe it was the day previous I received a call from one of the Commissioners who said that he was quite disturbed about the obligations [sic] in this letter.
"He didn’t appreciate it.
"Q Would it be fair to state that in fact this letter di [sic] [did] precipitate the firing of Mr. Pilarowski?
"A That would be fair to say.”
Subsequently, plaintiff appealed Brown’s decision to the Macomb County Board of Health which stated, in part, the following in upholding Brown’s decision:
"It is therefore readily obvious that any person occupying such a responsible position must conduct his office and affairs, both on and off duty so as not to bring discredit or disfavor upon the department or to do any act or omission which would affect ultimately the protection and promotion of the public health of the citizens of this county.
"Our independent investigation as well as giving due consideration to the statement of Dr. Brown and Mr. Pilarowski lead us to one conclusion, namely, that in our judgment Dr. Brown on more than one occasion made known to his administrative assistant that the operation and function of the department of health was being seriously undermined and deteriorating, and that the employee in question’s conduct must cease or face termination, which fact was acknowledged by the employee as when notified of termination by Dr. Brown, stated that he was expecting same.
"After giving due consideration to all matters of inquiry and aspects of this case it is the position of the Health Board to support the actions of its director with regard to his selection and termination of administrative assistants.
"To hold otherwise would result in the Health Board becoming involved in the day to day problems confronting all health department employees which is contrary to the statute creating the County Health Department and its Board of Health.”
As we have noted, the dispute was thereafter placed in the lap of the circuit judge who ruled that he was not empowered to grant plaintiff relief. Plaintiff now contends this was error.
Our initial problem in resolving this appeal does not lie on a constitutional level. Rather, it requires consideration of the trial judge’s ruling that mandamus was unavailable to plaintiff. The requirements necessary for the issuance of a writ of mandamus have been outlined by this Court in Dettore v Brighton Township, 58 Mich App 652, 654-655; 228 NW2d 508 (1975):
" 'A writ of mandamus will issue only if plaintiffs prove they have a "clear legal right to performance of the specific duty sought to be compelled” and that defendant has a "clear legal duty to perform such act”
"It is evident, then, that mandamus is both a discretionary and an extraordinary remedy. It is not to be entertained lightly and may issue only under limited circumstances. Accordingly, we must assess the factual matrix of the present case to determine whether the trial judge abused his discretion in denying the writ of mandamus as prayed for. If either Dettore does not have a 'clear legal right’ to the relief requested or the township board does not have a 'clear legal duty’ to perform the act requested, then the writ was properly denied.”
Similarly, in Lundberg v Corrections Commission, 57 Mich App 327, 329; 225 NW2d 752 (1975), it was said:
"Mandamus is a discretionary writ and will issue against a public official only to compel the enforcement of a clear legal duty. Livonia Drive-In Theatre v Livonia, 363 Mich 438; 109 NW2d 837 (1961). Ordinarily the act requested must be of a ministerial nature. However, the execution thereof may involve some measure of discretion. Michigan Dental Society v Secretary of State, 294 Mich 503; 293 NW 865 (1940). If the act requires some discretion but is mandated by statute and the officer failed to carry out the provisions of the statute the courts may order him to do so. Bischoff v County of Wayne, 320 Mich 376; 31 NW2d 798 (1948).”
Having stated these well-established principles, we turn to the question of whether there are circumstances herein which would justify the issuance of a writ of mandamus. On this point, we must disagree with the trial judge. Any other conclusion would disregard the fact that if the .claims of the plaintiff are sustained, they translate into a mandatory obligation on the part of the defendants to reinstate plaintiff and require only a ministerial act- on their part. See Meiland v Wayne Probate Judge, 359 Mich 78; 101 NW2d 336 (1960), and Toan v McGinn, 271 Mich 28; 260 NW 108 (1935). This remedy is especially appropriate because, as we will note later, of the strength of plaintiff’s claims. Of course, it is possible plaintiff may not be entitled to the relief he seeks; but this goes not to the maintenance of the action at all but, rather, to the issuance or denial of the writ.
With this decided, we must now examine the merits of plaintiff’s claims. We begin our inquiry fully aware that "it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general”. However, "the theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected”. Thus, " '[t]he problem in any case is to arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees’ ”. Moreover, we zealously protect the individual’s freedom of belief because it is a "fixed star in our constitutional constellation”, indeed, it is "central” to our form of government. "These protections reflect our 'profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open,’ [citation omitted], a principle itself reflective of the fundamental understanding that competition in ideas and governmental policies is at the core of our electoral process.”
Despite the foregoing fundamental doctrine, the defendants insist that denial of plaintiffs employment, because of his comments on matters of public concern, does not work a violation of plaintiffs First Amendment rights. A combination of factors impels us to disagree with them.
Plaintiff lost his job of some seven years as a direct consequence of his continued exercise of his right to freedom of speech. What the defendants wanted to exact from the plaintiff was a compromise of his true beliefs by pledging allegiance, or at a minimum silence, to incumbent elected officials and their actions. The principles we have earlier set out admonish us against sustaining such a barrier to the free flow of political discourse in our society. This is because "even a pledge of allegiance to another party, however ostensible, only serves to compromise the individual’s true beliefs”. Moreover, we should scrupulously regard the rights of plaintiff because "[a]s governmental employment, state or federal, becomes more pervasive, the greater the dependence on it becomes, and therefore the greater becomes the power to starve political opposition by commanding partisan support, financial and otherwise”. In the instant case, we find a classic example of how true this wise counsel is.
The uncontroverted justification offered by the defendants to support the termination of plaintiff’s employment is that plaintiff’s letter writing was creating animosity against him by members of the Macomb County Board of Commissioners, and that there was a fear that this animosity would cause problems in obtaining funds and various approvals for the board of health’s actions.
In examining the forcefulness of this argument, it may be conceded that plaintiff’s activities did cause such animosity. Nevertheless, the defendant has the burden to prove that avoidance of such friction with the commissioners is a vital state interest and that this interest clearly outweighs plaintiff’s right to freedom of expression. We think the rationale of the many cases quoted above defeats any such argument on the part of the defendants. Plaintiff’s criticism dealt with matters outside the scope of his activities within the department. The board of commissioners sit as the elective representative of their community. If excessive funding requests and frivolous or unnecessary projects were being approved by them for unwarranted reasons, then plaintiff was performing a public service in bringing these matters to public view. Moreover, it would be perverse for this Court to uphold plaintiff’s discharge because of a fear that the commissioners would attempt to retaliate against a single employee of the County Health Department by rejecting meritorious projects and funding requests to the detriment of the entire public. Indeed, if the board does operate in such a manner, and we have no evidence aside from plaintiffs letter that it does, then Macomb County needs more letter writing and public debate, not less, to disclose these evils. Obviously, this type of justification must fall.
The defendants next request that we stop and consider whether the plaintiff was a policymaking employee. They assert that the effect of such a ruling would be, in effect, to discount the entire value of our previous discussion and tie our hands in our ability to grant plaintiff any relief. Particular reliance for this proposition is placed on the following language from the concurring opinion of Mr. Justice Stewart in Burns, supra at 427 US 375:
"The single substantive question involved in this case is whether a nonpolicymaking, nonconfidential government employee can be discharged or threatened with discharge from a job that he is satisfactorily performing upon the sole ground of his political beliefs. I agree with the plurality that he cannot. See Perry v Sindermann, 408 US 593, 597-598; 92 S Ct 2694; 33 L Ed 2d 570.”
Taken at its face value, this language can hardly be used to support an argument that plaintiff forfeited all of his rights to speak on matters of local public concern outside the confines of his department by taking a policymaking position within his department. Surely, to conclude otherwise would do violence to all of the principles heretofore cited. We do not say, however, that it does not have some bearing on the propriety of plaintiff’s termination but, rather, say that a close examination must be engaged in under the Picker ing balancing test even when the public employee is a policymaker.
Of course, the above discussion presupposes that the plaintiff is a policymaking employee and, as the defendants properly point out, because of the trial court’s disposition, insufficient proofs were taken on this point; accordingly, a remand is appropriate on this issue. Moreover, again because of the circuit judge’s earlier ruling, the defendants must be offered the opportunity to present any other justifications they might have for terminating the plaintiff’s employment.
For guidance in the trial judge’s ruling on whether plaintiff was a policymaking employee we point to the language in Burns, at 427 US 367. There the Supreme Court recognized that the terms "policymaking” and "nonpolicymaking” are not easily susceptible of definition, but the Court did observe that an employee whose responsibilities have only limited and well defined objectives is a nonpolicymaking employee, while an employee whose responsibilities are not well defined or are of broad scope is more likely in a policymaking position. Also to be considered is:
"whether the employee acts as an adviser or formulates plans for the implementation of broad goals.” Id, at 368.
We, however, express our doubt that defendants will be able to prevail. In the instant case, the health board’s statement casts doubt on whether the plaintiff was a policymaking employee; the statement saying plaintiff executes the policies formulated by the board under the direction of defendant Brown. Moreover, if the issue is close, the presumption to be utilized is that he is a nonpolicymaking employee. Burns at 427 US 368. Additionally, as we have noted above, if plaintiff is determined to be a policymaking employee, the Pickering balancing test must be utilized; that being, of course, balancing plaintiff’s First Amendment rights against the vital and legitimate interests, if any, of his public employer.
Because the case is so strong that plaintiff is being injured because of the deprivation of his constitutional rights, we will grant plaintiff relief by requiring that the trial judge issue a temporary injunction ordering that from the release date of this opinion plaintiff should receive from the county on each regular period his salary and all other benefits which he enjoyed in his position as of the date of his discharge until a full hearing can be held and a decision reached in line with the principles hereinabove outlined. See GCR 1963, 820.1(7). The trial judge will also immediately determine if plaintiff is presently engaged in alternative employment as a result of his discharge. If so, the compensation to be paid to plaintiff by reason of the trial judge’s order shall be reduced to reflect his actual economic loss. Finally, plaintiff’s request for other relief must be determined in conformity with the trial judge’s final decision.
Accordingly, this case is remanded for proceedings in conformity with this opinion. We retain no further jurisdiction.
APPENDIX A
We think it unnecessary to reproduce every letter written by the plaintiff; instead we will reproduce two to give a flavor of plaintiff’s writing:
"Why are defeated Macomb County Commissioners traditionally kept in the system by their collegaues [sic] with appointments to various commissions such as road, planning and parks and recreation?
"Why are ex-commissioners, ex-supervisors (under the old governmental structure) and other members of 'Macomb’s political family’ appointed as department heads, deputy directors and board members with little, if any, professional qualifications for these important county positions?
"Why do only the political departments get the necessary resources to help accomplish their goals?
"Why are successful, positive programs transferred from one department to another if not for past or future political favors?
"Why do so many county officials operate from a manual based on preference and discrimination whether this involves the unseen deals made in the selection process for a new Chairman of the Board of Commissioners or the favoritism shown annually in who gets hired during summer employment programs?
"County officials,, both elected and appointed, must become more responsible and concerned about the conduct of Macomb County government and the nearly 700,000 citizens who are dependent upon their judgment.
"I hope the new Board of Commissioners will use its political pressure for the positive program ming necessary to solve our local problems, not add to them.
JOHN PILAROWSKI
Mount Clemens”
"I would like to compliment Wondering County Employe, the author of 'No Contract Yet’ which appeared in The Macomb Daily letters column on April 19, if I knew who to compliment. It is a shame that a county employe [sic] cannot write a letter-to-the-editor expressing his-her beliefs and sign that letter without fear of official reprimand and job harrassment [sic].
"The writer is accurate in the assessment of labor-relations in Macomb County. Commissioner Robert VerKuilen, as chairman of the board, bears responsibility for contract talks not being in a productive stage at this late date. One hundred and twenty-five days without contracts for 32 bargaining groups is ridiculous, yet the employer (Macomb County) is content with this arrangement. Why? Non-movement is not permitted in the private sector nor should it be allowed in the public. Progress cannot be made without communication. To date communication has not occurred, let alone wage offers.
"What is more important resource for a public service organization (county government) than its employees? If the Board of Commissioners will not enter into meaningful discussions (in good faith) with its employees, how can it serve its citizens? Whose interest is met by such delays? Are the funds for employees not already in the county budget? Is this fair treatment, proper leadership or responsive government?
"This anti-union behavior by the commissioners is difficult to understand. Employees are not ene mies to be defeated. They are workers with whom to solve problems. Positive labor philosophies must be developed.
JOHN PILAROWSKI
Mount Clemens”
APPENDIX B
49329 AuLac Drive East
Mt. Clemens, Michigan 48043
July 20, 1976
Robert A. VerKuilen, Chairman
Macomb County Board of Commissioners
County Building
Mount Clemens, Michigan 48043
Dear Mr. VerKuilen:
I was disappointed to read in The Detroit News (June 28, 1976) that seven county officials, including two "lame duck” commissioners, Mr. Walsh and Mr. Gavin, attended the National Association of Counties (NAC) convention in Salt Lake City. This $2,700.00 junket, all at public expense, as with the trip to Hawaii last year, cannot be understood. This is especially true as we listen to commissioners tell the public and their employees that they are totally committed to a "tight, austere budget” and that cuts will have to be instituted. The commissioners want the best of both worlds, that is, money for all their purposes, but none to settle 27 outstanding labor contracts. The employees, the majority of whom earn $5,828.00 to $8,584.00 a year, are 200 days without contracts. Their patience is to be commended, but how long can these employees wait? Mr. Carter stated in his acceptance speech — invest in people, not buildings and bureaucracy. If commissioners want increased federal funding, it will not be found in Salt Lake City or Hawaii. Public resources must be distributed more productively and in a much less politically self-serving manner.
The five bargaining units who are currently in various stages of ratification (They represent approximately 120 or 8% of a county work force of 1700.) have done so because of a verbal "Me Too Raise Clause” on any agreement signed that exceeds the 5.5% and 4.5% for 1976 and 1977 they received. The county’s logic and tactics are apparent, but the short sighted wisdom of dividing to conquer does not address an inequitable salary structure that has existed for years. To intimidate and force employees to break the law by striking in order to receive a living wage is not a public service.
On a second point, I question the Board’s reasoning on its recent appointment to the Zoccola seat. You stated you wanted a non-candidate for this seat, however you failed to use this argument when Vander Putten was appointed to Gaberty’s commission seat. Mr. Denny L. Robinson’s charges of "political hacks” and "machine politics” are perhaps credible statements. Is it sound judgment for a public employee to be appointed to a commissioner seat? The dual role as both a public employee and an appointed county commissioner raises questions. If this reasoning stands, will public employees be allowed appointments to the ethics committee, when formed?
On a third matter, it has been over 30 days since County Commissioner Stephan Dane was indicted on two counts of perjury by a Federal Grand Jury and released on a $5,000.00 personal bond. However, to date, he has not submitted his resignation. Will the Board formally request his resignation, offer another "Vote of Confidence” or officially submit this issue as the first matter of public business for the new ethics commission?
The future must bring the citizens of Macomb County and the nation officials who will speak for the people not against them, possessing integrity, professionalism and who will be fair on the issues —officials who will exercise objective oversight to correct abuses within the organizational structure of government (for example, Road Commissioners’ irregularities). Renewed public faith in the system will have to be earned. We require officials with the ethical convictions, courage and the ability to direct, analize [sic] and implement policy. We can no longer afford to have politicians serving only their own self-interest or obeying the dictates of special political interest groups. All unethical and illegal activities must be rejected and prosecuted under law. It is the people who should run this government. The government should not run the people.
I believe increased public awareness by exposure to who is getting what, when, where, and how will improve the quality of government by improving the character and composition of the membership itself. Informed voters can and must reclaim government and demand political and campaign reform making ¡government responsive to the people as intended by the Constitution. The major gap between the ruling politician and the general population must be closed as the system is opened. This is the way to celebrate our 200th birthday and would hold the greatest promise of another 200 years. The public concern and "fireworks” must not end on the 4th of July, but continue to August 3rd, November 2nd and through our third century. The people responded in 1776 to the political injustices of their day, so must the people of 1976.
More than a time of celebration, this is a time of rededication of ourselves to basic human principals. This nation and especially Macomb County requires equality for all and privilege for none (B. Jordon).
Sincerely,
John M. Pilarowski
cc: Lou Gordon
Section 1983:
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
Because of the length of this provision, we think it necessary only to recite the title: "§ 1985. Conspiracy to interfere with civil rights— Preventing officer from performing duties”.
Phillips v City of Flint, 57 Mich App 394, 400; 225 NW2d 780 (1975), quoting from Pickering v Board of Education, 391 US 563, 568; 88 S Ct 1731; 20 L Ed 2d 811 (1968).
Keyishian v Board of Regents, 385 US 589, 605-606; 87 S Ct 675; 17 L Ed 2d 629 (1967).
Phillips, supra, at 400, again quoting Pickering, supra.
Elrod v Burns, 427 US 347, 356; 96 S Ct 2673; 49 L Ed 2d 547 (1976).
New York Times Co v Sullivan, 376 US 254, 270; 84 S Ct 710; 11 L Ed 2d 686; 95 ALR2d 1412 (1964).
Burns, supra, 427 US 347, 355.
Burns, supra, 427 US 347, 356.
It is particularly interesting to note that it is conceded by the defendants that as a result of their action in dismissing the plaintiff the morale among the health department employees has plummeted. | [
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] |
D. C. Riley, J.
Defendant appeals as of right from a decision of the trial court rendering unconstitutional a zoning ordinance which purportedly precludes the erection of additional movie theaters in Livonia.
Plaintiff, a motion picture exhibitor, purchased 21 acres of land in Livonia at the northeast corner of Plymouth and Farmington Roads in 1961. The southern half of this property, approximately 11 acres, has been zoned C-2 (general business) since 1952. The balance of the property is zoned M-l (light manufacturing) and is not a factor in these proceedings. At present, plaintiff owns and operates a 1,400 seat theater on this property. _
Livonia’s first zoning ordinance (Ordinance #60) was enacted in 1952 and remained in effect until 1965 when it was replaced by Ordinance #543. Under the new ordinance, theaters could not be built in M-l districts and were permitted only in a C-2 district. Seven years later, in 1973, § 1103 was added to Livonia’s zoning regulations with the enactment of Ordinance #1071. This ordinance removed theaters as a permitted use in C-2 districts and they were made subject to waiver-use approval.
This appeal arises from defendant’s refusal to grant a waiver use which would allow plaintiff to construct a new four-theater complex, with a seating capacity of over 1,800 people, on the southern parcel of property zoned C-2.
Plaintiff’s application to build the four-theater structure was submitted to the city planning commission in 1974. The commission and the department of public safety approved the plan but it was ultimately rejected by the city council for the following reasons:
"1. The area is already adequately served by theaters, one already existing on the subject site;
"2. The proposed development would generate an increase in traffic and would cause added traffic problems to the major roads of Farmington and Plymouth Roads, which are already overburdened with traffic;
"3. The proposed use, which would add a quad-theater with a seating capacity of 1,835 seats would overburden the site and the area, as the site does not have the capacity to adequately accommodate the increased intensity of use.”
In reviewing a waiver-use petition, the council does not exercise any discretion in the application of the special standards set out in § 11.03(q), but it does have discretion in applying the general standards of § 19.06. In refusing plaintiffs petition, the council invoked its absolute discretion provided by ordinances and charter even though plaintiffs petition had conformed with all of the requirements set forth in 11.03(q).
We note first that this ordinance does not, on its face, censor any particular type of movie or theater. It applies equally to all theaters. It is ostensibly a land use regulation and not a censorship ordinance. We note further that the record before us indicates that there are presently three theater complexes consisting of a total of six theaters now located in Livonia. Further, C-2 zoning allows for numerous commercial ventures for which the parcel at issue has substantial value. Finally, with the enactment of Ordinance #1101 in 1972, theaters may be constructed in a C-3 district as a permitted use. This, however, would require a zoning change. Plaintiff has not petitioned the City of Livonia to rezone the subject property or any other property to a C-3 use.
Defendant first argues that a city may amend its zoning ordinance so as to classify theaters as a special or waiver use subject to review and compliance with specific standards with respect to location and structure when no attempt is made to restrict the content and type of film shown.
We find this argument consistent with MCL 125.584a; MSA 5.2934(1), the zoning enabling act, which specifically allows a municipality to provide in its zoning ordinances for specific land uses which will be permitted in a zoning district only after review and approval by a commission. This section also provides that the legislative body may deny requests for special land use provided that it indicates the specific basis for its decision.
In order to determine the validity of a particular governmental proscription, a test measuring the "existence of a real and substantial relationship” between the exercise of the police power and the public health, safety, morals and general welfare will be applied. People v Yeo, 103 Mich App 418, 421; 302 NW2d 883 (1981). Also, all such ordinances are presumed constitutional unless proven otherwise by competent evidence, or unless they are facially invalid. Id. see also Bruni v Farmington Hills, 96 Mich App 664, 668; 293 NW2d 609 (1980). In this case, the statute in question does not, on its face, affect constitutional rights; it does not purport to regulate the content or types of movies shown.
Defendant also argues that motion picture theaters which cater to general audiences are not within the ambit of the First and Fourteenth Amendments of the United States Constitution and article I, § 5 of the Michigan Constitution. Plaintiffs contention, on the other hand, is that motion picture theaters stand on the same footing as motion pictures themselves in terms of the applicability of the First and Fourteenth Amendments.
Our assessment of the relevant cases persuades us that defendant is correct.
A municipality can constitutionally pass ordinances restricting movie theaters to specified areas or preclude them absent a waiver or zoning amendment, as in the instant case. Such ordinances must, of course, further a reasonable governmental interest and not be arbitrary or capricious. Jamens v Avon Twp (On Remand), 78 Mich App 289; 259 NW2d 349 (1977).
In Young v American Mini Theatres, Inc, 427 US 50; 96 S Ct 2440; 49 L Ed 2d 310 (1976), the Court addressed a zoning ordinance restricting the location of "adult theaters”. In language we find particularly instructive, the Court stated:
"The city’s general zoning laws require all motion picture theaters to satisfy certain locational as well as other requirements; we have no doubt that the municipality may control the location of theaters as well as the location of other commercial establishments, either by conñning them to certain speciñed commercial zones or by requiring that they be dispersed throughout the city. The mere fact that the commercial exploitation of material protected by the First Amendment is subject to zoning and other licensing requirements is not a sufficient reason for invalidating these ordinances.” (Emphasis added.) Id., 62.
Further, we are in accord with defendant’s argument that a movie theater is not a "preferred use” which would preclude a municipality from constitutionally excluding the construction of a movie theater by a zoning ordinance. Defendant correctly argues that the "preferred or favored use” doctrine was overruled by Kropf v Sterling Heights, 391 Mich 139, 156; 215 NW2d 179 (1974). In Ed Zaagman, Inc v Kentwood, 406 Mich 137, 153-154; 277 NW2d 475 (1979), our Supreme Court established the standards by which the constitutionality of all zoning ordinances are measured and expressly affirmed the standards set forth in Kirk v Tyrone Twp, 398 Mich 429; 247 NW2d 848 (1976), and Kropf.
" 'The principles and tests to use to determine whether the present zoning of plaintiffs’ property is valid was detailed in Kropf.
" 'The important principles require that for an ordinance to be successfully challenged plaintiffs prove:
"' "[F]irst, that there is no reasonable governmental interest being advanced by the present zoning classification itself * * * or
"' "[SJecondly, that an ordinance may be unreasonable because of the purely arbitrary, capricious and unfounded exclusion of other types of legitimate land use from the area in question.” 391 Mich 139, 158.
" 'The four rules for applying these principles were also outlined in Kropf. They are:
" '1. "[T]he ordinance comes to us clothed with every presumption of validity.” 391 Mich 139, 162, quoting from Brae Burn, Inc v Bloomfíeld Hills, 350 Mich 425; 86 NW2d 166 (1957).
" '2. "[I]t is the burden of the party attacking to prove affirmatively that the ordinance is an arbitrary and unreasonable restriction upon the owner’s use of his property * * *. It must appear that the clause attacked is an arbitrary fiat, a whimsical ipse dixit, and that there is no room for a legitimate difference of opinion concerning its reasonableness.” 391 Mich 139, 162, quoting Brae Burn, Inc.
" '3. "Michigan has adopted the view that to sustain an attack on a zoning ordinance, an aggrieved property owner must show that if the ordinance is enforced the consequent restrictions on his property preclude its use for any purposes to which it is reasonably adapted.” 391 Mich 139, 162-163.
" '4. "This Court, however, is inclined to give considerable weight to the findings of the trial judge in equity cases.” 391 Mich 139, 163, quoting Christine Building Co v City of Troy, 367 Mich 508, 518; 116 NW2d 816 (1962).’ 398 Mich 429, 439-440.”
Defendant also challenges the trial court’s ruling that the ordinance was unconstitutional because it served as a total prohibition of the erection of movie theaters in the City of Livonia. While appellate courts give considerable weight to the findings of the trial judge in equity cases, reviewing this record de novo, we find that this ordinance did not totally exclude movie theaters from the City of Livonia. Biske v City of Troy, 381 Mich 611; 166 NW2d 453 (1969), Christine, supra.
In Kropf, supra, 155-156, the Court stated:
"On its face, an ordinance which totally excludes from a municipality a use recognized by the constitution or other laws of this state as legitimate also carries with it a strong taint of unlawful discrimination and a denial of equal protection of the law as to the excluded use. Such a taint can hardly be presumed to be present in cases such as that presently before us when the general use is reasonably permitted in the community and the only issue is whether it. was arbitrarily or capriciously denied as to this particular parcel of land.” (Emphasis in original.)
This statement is particularly appropriate to the case at bar. In Kropf, the City of Sterling Heights had enacted a zoning ordinance which precluded multi-family dwellings in a single-family residential district. The Court refused to find that the ordinance was unconstitutional and stated that there may be several rational reasons a city may have in excluding other uses from a particular piece of property. In such a case, there is a presumption that the city acted for such reasons, or for any other valid reasons, in enacting the particular ordinance. In order to show arbitrariness and capriciousness on the part of the city, a plaintiff must show that it did not act for a valid reason, or that no such grounds reasonably exist with respect to a particular piece of property. Id., 160-161. The Court went on to state that it would not second-guess local governing bodies in the absence of a showing that the body was arbitrary or capricious in its exclusion of other uses from a single-family residential district. Id., 161. The burden, therefore, is with the plaintiff to establish that the unreasonableness of the ordinance is apparent and indisputable. Brae Burn, Inc, supra.
In the instant case, it is without a doubt true that the ordinance does not, on its face, preclude the building of movie theaters in the City of Livonia. The trial judge, in support of his decision, relied on several opinions, all of which we believe to be distinguishable.
Roman Catholic Archbishop of Detroit v Village of Orchard Lake, 333 Mich 389; 53 NW2d 308 (1952), involved an ordinance which, on its face, allowed churches and schools, under special permit only, in three zones comprising about ten percent of the village’s area while completely prohibiting them in the fourth zone which constituted the balance of the village. When applied to the existing facts and circumstances, however, the ordinance served to exclude churches and schools completely from the village. The Court held the ordinance unconstitutional.
Ferndale v Ealand (On Remand), 92 Mich App 88, 91; 286 NW2d 688 (1979), also relied upon by the trial judge, dealt with the constitutionality of a zoning ordinance which set up a special criteria for adult motion picture theaters. Since that ordinance involved the regulation of speech, the Court recognized that the ordinance precluded a constitutionally recognized use.
The other cases cited by the court, Tocco v Atlas Twp, 55 Mich App 160; 222 NW2d 264 (1974), Gundersen v Village of Bingham Farms, 372 Mich 352; 126 NW2d 715 (1964), and Dequindre Development Co v Warren Twp, 359 Mich 634; 103 NW2d 600 (1960), all dealt with yet another constitutionally protected use — housing—and involved ordinances which attempted to completely prohibit trailer parks and mobile homes.
A careful consideration of these cases persuades us that all speak to a use that is implicitly protected by our federal and state constitutions and thereby shift the burden of proof to the governmental unit. Measured by this standard, we cannot conclude that the erection of a motion picture theater is a constitutionally protected use or that the City of Livonia should carry the burden of proving the reasonableness of the ordinance.
Furthermore, classifying or zoning theaters is particularly justified since theaters are atypical of other commercial uses and require regulation to prevent safety hazards and other related problems. In the instant case, the record supports a finding that Livonia’s ordinance furthers reasonable governmental interests and that plaintiff did not establish that the ordinance was an arbitrary or capricious use of governmental authority. Jamens, supra.
Most importantly, the instant ordinance does not totally exclude movie theaters from the city. Unlike the aforementioned cases relied upon by the trial judge which dealt with unconstitutional exclusion, where no property was allocated for the desired use, Livonia is a substantially developed community in which several theater complexes already exist. Kropf, supra. That this ordinance cannot be viewed as a complete prohibition of motion picture theaters is shown by the fact that theaters may be built in a C-2 district upon approval of a waiver use or in a C-3 district. There is no proof that defendant would deny any and all zone change requests since it has no history of doing so and because there is a large amount of C-2 property which could conceivably be rezoned to C-3. Finally, it cannot be said that defendant acted in an unreasonable and arbitrary manner in denying plaintiffs petition.
Plaintiffs final contention is that the ordinance is invalid as a prior restraint in violation of the First and Fourteenth Amendments. To constitute a prior restraint, case law requires that the legislation must purport to regulate content in an impermissible manner or have the direct and intended effect of doing so. Young, supra, Burstyn v Wilson, 343 US 495; 72 S Ct 777; 96 L Ed 1098 (1952). This is not the situation here.
Reversed. No costs.
The existing theater was built prior to 1965 in the M-l district. Although it is now a nonconforming use, the theater can be sustained, repaired, remodeled and improved. However, if destroyed, it cannot be rebuilt. It may be enlarged only with the zoning board’s approval.
Section 11.03(q) provides:
"(q) Theaters, enclosed (not including drive-in theaters) but only when such use is carried on in a building properly designed and suitable for theater use and when such theater is located on a parcel of land five (5) acres or more in size. The Planning Commission shall recommend approval of a theater located on a parcel of land more than five (5) acres in size only if it finds that the proposal for such use complies with the following additional requirements.
"(1) Such use shall have a minimum seating capacity of four hundred (400) seats.
"(2) Such use shall have direct access by means of at least two (2) separate entrances and exits to a major thoroughfare having an existing or planned width of one hundred twenty (120) feet or more as designated on the Master Thoroughfare Plan of the City of Livonia.
"(3) Signs shall be provided pursuant to Section 18.50E and shall be non-flashing.”
In an opinion dated July 15, 1976, the trial judge held that the Livonia City Council’s decision to deny plaintiff a waiver use was not an abuse of discretion. A panel of this Court affirmed that ruling in an unpublished per curiam opinion, Jeffrey Lauren Land Co v Livonia, docket no. 77-1181, released January 10, 1978, and the Supreme Court denied leave to appeal, 405 Mich 819 (1979). Thus, the only issues left for our resolution at this time concern whether the lower court erred in finding the Livonia ordinance unconstitutional. | [
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Bronson, J.
Respondent appeals by right the holding of the Tax Tribunal finding that its machine' was not exempt from personal property taxation as "inventory” and determining its true cash value to be $81,775.
The subject of this assessment dispute is a large tooling machine owned by respondent. Respondent, an Ohio corporation with facilities in Ohio, entered into a contract with High Performance Machines, Inc. (hereinafter HPM), a corporation with its place of business in Troy, Michigan, to retrofit the machine. Retrofitting is a process by which the usable portions of an old machine are integrated with new parts and advanced technology to transform the machine into a modernized, automated piece of equipment. As concerns this dispute, it appears that the major usable portions of the machine were base castings, and the electrical systems, drive trains, and motors were to be new parts designed to adapt the machine for computerized operation.
Leo Burton of HPM testified before the Tax Tribunal that the old parts sent by respondent were worth "almost nothing”. The asessed value imposed by the Tax Tribunal was based on HPM’s 1977 personal property statement which reported $163,550 paid by respondent for labor and materials involved in the retrofitting process. The $163,-550 figure was reduced by 50% in accordance with the "Assessors Manual, 1972 edition, Chapter XV, page 3” dealing with construction in process. Thus, the Tax Tribunal’s true cash value for the ma chine was identical to that earlier imposed by the Troy city assessor.
The first question we must resolve is whether any portion of respondent’s machine is exempt from taxation as inventory. MCL 211.9c; MSA 7.9(3). For purposes of this inquiry, we believe the base castings and the new materials purchased by HPM to be used in the retrofitting process must be separately considered.
MCL 211.9c; MSA 7.9(3) provides in pertinent part:
"Sec. 9c. (1) Inventory property shall be exempt from taxation under this act effective with the 1976 tax year.
"(2) As used in this section, 'inventory’ means:
"(a) The stock of goods held for resale in the regular course of trade of a retail or wholesale business.
"(b) Finished goods, goods in process, and raw materials of a manufacturing business.
"(c) Materials and supplies, including repair parts and fuel.”
Respondent contends that the base castings constituted "goods in process” and were therefore inventory. The definition of "inventory” established by the Legislature is not entirely clear, necessitating our resort to construction. The cardinal principle of statutory construction is to ascertain and give effect to the legislative intent. Melia v Employment Security Comm, 346 Mich 544, 562; 78 NW2d 273 (1956).
We do not believe that the Legislature envisioned a tax exemption for old materials owned by companies in the position of respondent. There can be no doubt that, insofar as the old parts shipped to HPM are concerned, they were "goods, chattels, and effects” belonging to respondent within the meaning of MCL 211.8(a); MSA 7.8(a). The parts of the old machine shipped to HPM continued to belong to respondent and never became the "goods” of HPM. Respondent is not a manufacturing business which fabricates finished products from base castings and other parts. As such, it cannot claim the benefit of the inventory exception embodied in MCL 211.9c(2)(b); MSA 7.9(3)(2)(b). We believe that the inventory exception under consideration here only applies to a business whose "finished goods, goods in process, and raw materials” are intimately associated with its own manufacturing process of goods for resale. In other words, for the goods in process exemption to apply, the unfinished goods must ultimately be intended as an item for resale during the normal course of the business claiming the exemption. We therefore uphold the Tax Tribunal decision insofar as it involves the status of the old parts sent by respondent to HPM. Before turning to the question of how the value of the old parts should have been determined, we address the issue of whether any other value added to the machine, as represented by the progress payments, was taxable as personal property.
The in-progress retrofitting of the machine falls within the definition of inventory as "goods in process” of a manufacturing business. The few old parts used in the process of retrofitting are actually being used by HPM in the manufacture of an entirely new machine. This retrofitting is intimately associated with HPM’s manufacturing business as a fabricator of new machines — both from scratch and through the retrofitting process. Similarly, the parts purchased by HPM to be used ultimately in retrofitting respondent’s two other machines are inventory as either "raw materials of a manufacturing business” pursuant to MCL 211.9c(2)(b); MSA 7.9(3)(2)(b) or as "materials and supplies” within the meaning of MCL 211.9c(2)(c); MSA 7.9(3)(2)(c).
The question of taxability of the partially retrofitted machine (a good in process) and the parts to be used in retrofitting the other machines (materials) turns on whether these items were "allowed a deduction or allowance for depreciation” by the Internal Revenue Code. MCL 211.9c(3); MSA 7.9(3)(3). The Tax Tribunal held that respondent’s machine was personal property for which a depreciation deduction was allowable and, since respondent failed to present evidence to the contrary, the tribunal held that the machine did not cease to be a depreciable asset when under a contract to be retrofitted.
The burden of proof problems posed in this case will be considered infra. Since this case must be remanded to the Tax Tribunal for further proceedings concerning the value to be placed on the nonexempt portions of the old machine, we also direct the tribunal to reopen the proofs concerning whether depreciation would be allowed respondent on the partially completed retrofitted machine and the parts purchased by HPM to be used in retrofitting respondent’s two other machines in the fu ture. Respondent raises a significant question concerning whether under the Internal Revenue Code depreciation would be allowed for its partially retrofitted machine which had not yet been placed into service. It appears that there may be substantial merit to respondent’s contention that the retrofitting actually will create an entirely new asset, for purposes of the Internal Revenue Code, which is not depreciable until the asset is placed into service. See IRC Reg 1.167(a)-10(b).
The Tax Tribunal placed the burden of proving both eligiblity for an exemption and cash value of the asset on the respondent taxpayer. Respondent argues that both allocations of the burden of proof were contrary to law. At the time of the proceedings before the tribunal each party assumed that the other would bear the burden of proof on the material issues. Respondent believed that since it prevailed before the Board of Review and was the respondent before the Tax Tribunal, the city, as the petitioner, carried the burden of proof. Petitioner, on the other hand, adopted the position that the taxpayer always has the burden of proof.
MCL 205.737(3); MSA 7.650(37X3) provides that the petitioner has the burden of proof in establishing the true cash value of the property in dispute. The tribunal’s opinion states as follows concerning this statutory provision:
“Under MCLA 205.737(3), the Petitioner has the bur den of proof in establishing true cash value and the assessing agency has the burden of proof in establishing the average level of assessments. In this matter, the petitioner and assessing agency are one and the same. However, the tribunal has addressed this apparent paradox of nomenclature in City of Detroit, Petitioner v E L Rice & Company and Norman Allan & Company, Respondents (MTT Dockets 10420 and 10423), a dispute involving omitted personal property, in which it stated on page 7:
" * * the tribunal is firm in its belief that the taxpayer, regardless of litigorial denomination as petitioner or respondent, has the burden of proof as to such matters as true cash value * * *; as the substantive facts of which are more readily found within the knowledge of said taxpayer vis-á-vis the taxing authority.’ ”
We conclude that the Tax Tribunal erred in its construction of the statute. The precursor to MCL 205.737(3); MSA 7.650(37)(3), being MCL 205.737(1); MSA 7.650(37)(1), provided that the taxpayer bears the burden of establishing the value of his property. In construing an amendment to a statute, a change in phraseology raises a presumption that a change in meaning was also intended. Lawrence Baking Co v Unemployment Compensation Comm, 308 Mich 198, 205; 13 NW2d 260 (1944), cert den 323 US 738; 65 S Ct 43; 89 L Ed 591 (1944), Michigan Transportation Co v Secretary of State, 41 Mich App 654, 665; 201 NW2d 83 (1972), lv den 389 Mich 767 (1973). We find nothing to suggest that the Legislature intended anything other than to change the allocation of the burden of proof vis-á-vis true cash value when amending MCL 205.737; MSA 7.650(37). The Legislature was apparently dissatisfied with allocating the burden of proof in all cases to the taxpayer and determined that the party who loses in the early stages of the tax dispute on the issue of true cash value should shoulder the obligation of proving that the value should be computed differently in the Tax Tribunal.
Petitioner cites two cases from this Court which rely on the amended MCL 205.737; MSA 7.650(37), stating that the burden on the issue of true cash value is on the taxpayer. See Consolidated Aluminum Corp, Inc v Richmond Twp, 88 Mich App 229, 232; 276 NW2d 566 (1979), Kern v Pontiac Twp, 93 Mich App 612, 620; 287 NW2d 603 (1979). While these cases could be read as contrary to our holding, in both instances the taxpayer was also the petitioner. To the extent that our colleagues in Consolidated Aluminum and Kern really meant that the taxpayer always bears the burden of proving true cash value, we specifically disagree with them in light of the amendment to MCL 205.737; MSA 7.650(37).
Turning to the issue of which party should have borne the burden of proof on whether the property was exempt from taxation, we note that the property tax statutes do not specifically allocate the burden of proof on this issue. By MCL 205.726; MSA 7.650(26), tribunal hearings are to be conducted in accordance with the Administrative Procedures Act, MCL 24.201 et seq.; MSA 3.560(101) et seq. However, unlike the federal administrative procedures act, 5 USC 551 et seq., the Michigan act does not explicitly allocate the burden of proof in contested cases.
By MCL 205.732(d); MSA 7.650(32)(d), the Tax Tribunal is allowed to promulgate rules for practice and procedure before it. However, the tribunal has not promulgated rules with respect to the allocation of the burden of proof. Instead, following the close of the petitioner’s proofs, the tribunal informed respondent that it had the burden of proof based upon its incorrect construction of MCL 205.737(3); MSA 7.650(37X3).
In Almira Twp v Benzie County Tax Allocation Board, 80 Mich App 755, 758-760; 265 NW2d 39 (1978), one panel of this Court held that the Tax Tribunal had to promulgate rules of procedure in accordance with the Administrative Procedures Act. This Court found that the tribunal could not properly follow an ad hoc procedure established in its order to the litigants. The method followed by the tribunal in this case is even more egregious than that used in Almira Twp. Here, the parties were not explicitly told who had the burden of proof until midway through the proceedings.
While we conclude that Almira Twp requires us to remand this case, we do not believe that the burden of proof question must be allocated by rule in accordance with the Administrative Procedures Act. We agree with the panel’s decision in Superior Public Rights, Inc v Dep’t of Natural Resources, 80 Mich App 72, 80; 263 NW2d 290 (1977), lv den 406 Mich 926 (1979), that an agency may allocate burdens of proof by rule or decision so long as the allocation is consistent with the legislative scheme being administered. Nonetheless, in all cases, the parties must have sufficient notice of who is to bear the burden of proof on each issue for the proceedings to be deemed consonant with procedural due process.
On remand, the tribunal must allocate the burden of proof on the exemption issue and give the parties sufficient advance notice of this allocation. While we do not mean to resolve the allocation problem for the tribunal, the following analysis should be considered by the Tax Tribunal.
Petitioner states that the burden of proving a tax exemption is always on the taxpayer. It is true that many cases flatly assert this proposition. See, for instance, Evanston YMCA Camp v State Tax Comm, 369 Mich 1, 8; 118 NW2d 818 (1962), app dis 375 US 19; 84 S Ct 63; 11 L Ed 2d 39 (1963). However, this rule arose in a setting in which taxpayer appeals were the norm. The principle behind the restrictive construction of exemption provisions is largely absent here. The exemption of inventory from personal property taxation was dependent upon the enactment of the Single Business Tax Act, MCL 208.1 et seq.; MSA 7.558(1) et seq. See 1975 PA 234, § 2. The principle of restrictive construction of exemption provisions is not particularly compelling where the purpose of the exemption statute is to avoid double taxation. The single business tax is a modified value-added tax, intended to tax the value of business activity conducted in this state. Haughey, The Economic Logic of the Single Business Tax, 22 Wayne L Rev 1017 (1976). "Inventory” exempt from personal property taxes will nonetheless be taxed at some point in time under the Single Business Tax Act. As such, the rationale behind the restrictive construction principle is not operative. The personal property tax exemption will not mean the property will escape taxation but, rather, one tax will be substituted for another. Compare, American Title Ins Co v Detroit, 102 Mich App 679; 302 NW2d 278 (1981).
The remaining question is how true cash value of the non-exempt property is to be established. This question we basically leave to the Tax Tribunal’s expertise in taxation matters. We do note, however, our disagreement with respondent’s contention that the old parts sent to HPM have no value. Clearly, respondent would not have undertaken the expense of having the parts shipped to Michigan if this would not reduce the ultimate cost of obtaining a machine which performs the functions desired by respondent. Instead, respondent would merely have ordered an entirely new machine. If the partially retrofitted machine is ultimately held not to be exempt from taxation, true cash value should be determined by reference to how much money a willing buyer would pay for the unfinished machine on the tax date.
Respondent raises no other issues entitling it to relief.
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction. No costs, neither party having prevailed in full and significant issues of statutory construction having been presented.
The $163,550 figure actually represented amounts expended to obtain new parts and materials to retrofit three machines owned by respondent. Each machine was to be retrofitted sequentially. Thus, while HPM had only the base castings for the first machine, it was purchasing all the materials needed to complete the retrofitting process on all three machines.
Following the assessor’s valuation, respondent successfully appealed to the local Board of Review on the theory that the machine and parts were "inventory” exempt from personal taxation pursuant to MCL 211.9c; MSA 7.9(3). The city petitioned the Tax Tribunal for review and prevailed in that forum.
The Tax Tribunal did not consider whether the old parts could be classified as inventory within the meaning of MCL 211.9c(2)(b); MSA 7.9(3)(2)(b). Instead, the tribunal impliedly assumed for purposes of its opinion that the old parts could be considered exempt inventory. However, no exemption was actually permitted because the tribunal found that the property was allowed a deduction or allowance for depreciation under the Federal Internal Revenue Code. As such, even if the property were inventory, MCL 211.9c(3); MSA 7.9(3)(3) precluded the exemption.
We do not mean to imply that respondent should necessarily prevail on this issue. Petitioner argues that under the Asset Depreciation Range system of depreciation, respondent would be allowed a deduction on the partially completed retrofitted machine. The problem is that the record at hand is totally devoid of any testimony or other evidence actually detailing how the Internal Revenue Service would treat the issue of respondent’s machine’s depreciability. Moreover, neither party cites us to relevant federal authority. Thus, the record lacks both sufficient factual findings and legal citations for us to reach a conclusion on this aspect of the case.
1973 PA 186, § 37(1).
The hearings officer in this case found the machine exempt from taxation but held in the alternative that its true cash value was zero.
5 USC 556(d) specifically places the burden of proof on the proponent of the rule or order.
In the context of this case it probably does not matter who has the burden of proof on the exemption issue. In all likelihood respondent’s tax returns will be dispositive since they will show whether a deduction for depreciation was allowed. These records are probably available to the taxing unit through the Commissioner of Revenue. IRC 6103. In any case the tribunal rules allow reasonable discovery so that if the burden of proof was placed on the city it would have available means to meet this burden. | [
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Per Curiam.
Plaintiff appeals as of right a lower court order granting a motion by defendant for summary judgment. We reverse.
The sole issue in this appeal is whether an employer may fire an employee on account of absences from work that were due to a work-related injury for which the employee is entitled to compensation benefits. The few pertinent facts of this case are summarized in the dissenting opinion.
For purposes of determining the propriety of a motion for summary judgment, a trial judge must accept as true all of the nonmovant’s factual allegations as well as any reasonable inferences that could be drawn therefrom. Szydlowski v General Motors Corp, 59 Mich App 180; 229 NW2d 365 (1975).
It would be anomalous for this Court to hold that an employee may not be fired in retaliation for the filing of a workers’ compensation claim, Sventko v The Kroger Co, 69 Mich App 644; 245 NW2d 151 (1976), and then to hold, as the dissent would, that an employer may fire the employee nonetheless because of his absence from work due to the injury for which he is receiving such compensation. The effect of the dissenting opinion in this case would be to create a substantial "loophole” through which this Court’s opinion in Sventko may be vitiated.
Permitting an employer to fire an employee for absences due to a compensable claim under the Worker’s Disability Compensation Act would have a chilling effect on the filing of such claims. Public policy, therefore, dictates the opposite result. Inasmuch as it is the policy of this state that injured employees be fully compensated for their work-related injuries, the firing of such employees on account of their absence from work while recovering from their injuries does violate the established public policy of this state.
The lower court order granting summary judgment in favor of defendant is reversed and this case is remanded for trial. | [
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Per Curiam.
Defendant was charged with conspiracy to deliver under 50 grams of cocaine, MCL 333.7401; MSA 14.15(7401), MCL 750.157a; MSA 28.354(1), and delivery of under 50 grams of cocaine, MCL 333.7401; MSA 14.15(7401), arising out of a transaction which occurred on September 28, 1979.
Defendant was also charged with similar crimes arising out of another transaction which occurred on September 25, 1979. Both transactions involved the alleged sale of cocaine to an undercover police officer. In addition, defendant was charged in another case with possession of marijuana, which substance was allegedly in his possession at the time of his arrest on September 28, 1979. On January 16, 1980, defendant pled nolo contendere to the charge of delivery of cocaine arising out of the transaction of September 28, 1979. This plea was entered pursuant to a plea agreement whereby the remaining charges would be dismissed at the time of sentencing. On March 24, 1980, defendant was sentenced to serve 10 to 20 years in prison, and the other charges were dismissed.
I
Defendant first claims that certain errors occurred in the sentencing process. His contention that the trial court failed to consider adequately defendant’s potential for rehabilitation and that the trial court disregarded the information contained in the presentence report are not supported by the record, and constitute the statement of a conclusion rather than an argument. The record shows affirmatively that the trial court was familiar with the presentence report and defendant acknowledged the accuracy of the information contained therein.
Defendant contends that the trial court improperly considered the other pending charges in passing sentence. We find, however, that the trial court stated on the record that it would consider the pending charges and that defendant made no objection to that fact. The trial court may consider pending charges, and defendant may challenge or explain such charges if he chooses to do so. People v Lee, 391 Mich 618; 218 NW2d 655 (1974). We note that those charges arose out of the sale of narcotics to an undercover police officer and the fact that defendant allegedly had marijuana in his possession when he was arrested on the charge to which he pled nolo contendere. It is not likely that a denial of the facts surrounding those charges would have been credible even if defendant chose to make such a denial. The trial court was not accepting defendant’s guilt of misconduct based on mere accusations denied by defendant, which practice is not permissible, People v Zachery Davis, 41 Mich App 683, 686-692; 200 NW2d 779 (1972). Rather, the trial court said only that it would consider the charges. This was not error. Lee, supra.
Defendant claims that the trial court placed undue emphasis on the local attitude towards drug offenses. The record does not reflect an abrogation of the trial court’s sentencing discretion such as was ground for reversal in People v Chapa, 407 Mich 309; 284 NW2d 340 (1979), nor does it show the undue emphasis on vengeance or reassurance of the community that criminals would be dealt with firmly as was true in People v Gonzales, 86 Mich App 166; 272 NW2d 227 (1978). It appears only that the trial court considered the community attitude as one factor in passing sentence.
Defendant also claims that the sentence imposed is the result of personal bias on the part of the judge. This allegation arises from the fact that the judge was the defense attorney in a previous civil action in which defendant was the plaintiff. That civil case was a suit by defendant for damages in compensation for an accident in which defendant became a paraplegic. Defendant claims that since the trial judge, as the defense attorney in the civil case, lost a substantial judgment in that case, he is now using his sentencing discretion as a tool of revenge.
Defense counsel in the instant case admits being aware of this potential for bias, and has submitted an affidavit with his brief on appeal claiming that he was induced not to move for disqualification of the trial judge by the judge’s representations that he would not be biased and by his statements to the effect that the other judge who would then hear defendant’s case was unduly harsh on drug offenders. Once more, defendant has stated a conclusion rather than demonstrated factual support for reversal. Where a defendant knows of a basis for disqualification prior to trial and fails to move for disqualification, the issue is not preserved for appeal. People v Alexander, 76 Mich App 71, 78; 255 NW2d 774 (1977).
We also note that, by affidavit, defendant alleges that the trial court had previously sentenced 14 other drug offenders to incarceration, the highest minimum sentence imposed being 4-1/2 years. This information, if true, is inadequate from which to draw any conclusion, since nothing is presented as to the nature of the offenses other than that they are drug related. This lack of information precludes meaningful comparison. We further note that throughout his brief defendant emphasized the fact that his conviction is based on the delivery of a single gram of cocaine. In fact, the quantity involved in the transaction of September 28, which is that to which defendant’s plea was addressed, was greater. The single gram delivery occurred on September 25, and the charges on that transaction were dropped.
II
Defendant claims that the absence of appellate review of the exercise of judicial discretion in determining the length of sentence in each case constitutes a denial of due process. In his argument, however, defendant acknowledges that the Supreme Court of Michigan has declined to allow review of the exercise of a trial court’s sentencing discretion. People v Burton, 396 Mich 238; 240 NW2d 239 (1976). Defendant makes an excellent argument in support of the proposition that appellate review of sentences which are within statutory limits should be instituted in Michigan. However, we feel constrained by the policy of the Supreme Court and, following the lead of Burton, we decline to disturb the sentence in the instant case. If the defendant takes an appeal to the Supreme Court, that Court may decide to allow review of the sentence, but we await action by the Supreme Court or the Legislature rather than institute such a review of our own accord. See People v Armstrong; 99 Mich App 137; 297 NW2d 637 (1980).
Ill
Defendant claims that his felony conviction under the Public Health Code of 1978 for a controlled substances violation is unconstitutional because the statute violates the title-object clause of the Michigan Constitution, Const 1963, art 4, § 24. Defendant’s contentions that the act under which he was convicted embraces more than one object and that the controlled substances provisions, art 7 of 1978 PA 368, are outside the scope of fair notice provided by the title of the Public Health Code were addressed and rejected in People v Trupiano, 97 Mich App 416; 296 NW2d 49 (1980), lv den 409 Mich 895 (1980). For the reasons set forth in Trupiano, we decline to reverse on those grounds.
Affirmed. | [
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Per Curiam.
Houghton Lake Community Schools, Board of Education (board) appeals an order of the Michigan Employment Relations Commission (MERC) requiring it to bargain with Houghton Lake Education Association (association) over the identity of a health insurance plan policyholder. We affirm.
This dispute concerns the board’s refusal to bargain over the Super-Med II medical insurance plan offered by the Michigan Educators’ Support Special Service Association (MESSA). The Super-Med II plan was a group insurance plan underwritten by the Equitable Life Assurance Society and administered by MESSA. MESSA developed insurance programs for the Michigan Education Asociation (MEA), to which the Houghton Lake Education Association belonged. Furthermore, MESSA and MEA had interlocking boards of directors. Under the Super-Med II plan, MESSA served two functions. First, it administered the insurance program for Equitable Life. Second, MESSA was the policyholder under the plan. According to MESSA, this dual responsibility had a profound effect upon benefits available to the employees. As the administrator, MESSA was responsible for paying all claims and establishing the claim appeal procedure. MESSA also was responsible for how the insurance contract was to be interpreted. For example, Super-Med II compensated the employee for doctor’s fees which were customary and reasonable. When the contract was negotiated, the customary and reasonable fee could be set at $100 but later change by MESSA to $150, causing an increase in premiums. Also, MESSA was allowed to change benefits during the term of the collective bargaining agreement without renegotiating the contract with the school board. MESSA also controlled the disposition of premium refunds which were usually used to buy additional coverage for the employees. According to MESSA, any ambiguity in the insurance contract would be resolved in favor of the employee and would result in in creased cost to the board. Finally, the Super-Med II plan cost $119 per month for full family membership while the Blue Cross & Blue Shield plan cost $84.65 a month.
In the summer of 1979, the board began to negotiate a new collective bargaining agreement with the association, which represented the teachers in the Houghton Lake schools. During the initial negotiations, the board was informed that the association’s insurance and economic package would be submitted later. On June 28, 1979, the association proposed that the board accept the MESSA Super-Med II plan as a replacement for the Blue Cross & Blue Shield plan carried under the previous collective bargaining agreement. The board representatives failed to respond to this demand.
During negotiations, the association representatives claimed that Blue Cross & Blue Shield had reduced benefits paid for emergency room services. According to the board, Blue Cross & Blue Shield was refusing to pay for services which were not of an emergency nature or life threatening. The board supported Blue Cross & Blue Shield’s interpretation of the contract. On August 28, 1979, the association renewed its proposal that the board accept MESSA’s Super-Med II plan. The board’s chief negotiator informed the association that the board was willing to negotiate over the contents of an insurance plan but refused to negotiate over the insurance carrier.
On September 4, 1979, the association filed an unfair labor practice charge with MERC, claiming that the board’s refusal to bargain over the insurance carrier was an unfair labor practice contrary to MCL 423.210; MSA 17.455(10). After a hearing, held on November 1, 1979, an administrative law judge found for the board. The association took exception to the judge’s findings, and MERC reversed the judge’s findings on July 8, 1980. MERC ordered the board to negotiate over the indentity of the insurance policyholder.
The sole question submitted for our determination is whether the board, a public employer, violated the public employees relations act, when it refused to negotiate with the union regarding the indentity of the policyholder of a group health insurance plan.
MCL 423.215; MSA 17.455(15) states:
"A public employer shall bargain collectively with the representatives of its employees as defined in section 11 and is authorized to make and enter into collective bargaining agreements with such representatives. For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract, ordinance or resolution incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession.”
This statute is identical to § 8(d) of the National Labor Relations Act, 29 USC 158(d), and this Court looks to federal law when interpreting this section. Detroit Police Officers Ass’n v Detroit, 391 Mich 44, 53; 214 NW2d 803 (1974), Detroit Police Officers Ass’n v Detroit, 61 Mich App 487, 490; 233 NW2d 49 (1975), lv den 395 Mich 756 (1975).
Matters which are proposed as categories or subjects for collective bargaining are classified as: mandatory, permissive, and illegal. Pontiac Police Officers Ass’n v City of Pontiac, 397 Mich 674, 679; 246 NW2d 831 (1976), National Union of Police Officers Local 502-M, AFL-CIO v Wayne County Board of Comm’rs, 93 Mich App 76, 87; 286 NW2d 242 (1979). Mandatory subjects are those within the scope of "wages, hours, and other terms and conditions of employment * * *". MCL 423.215; MSA 17.455(15). Pontiac, supra, 679, National Union of Police, supra, 88. Any matter which has a significant impact on the subjects listed or settles an aspect of the relationship between employer and employee is a mandatory subject, except for management decisions which are fundamental to the basic direction of a corporate enterprise or which impinge only indirectly upon employment security. National Union of Police, supra, 88, Detroit Police Officers Ass’n, 61 Mich App 492. The parties are required to bargain in good faith on mandatory subjects, although they need not reach agreement. National Union of Police, supra, 87.
Health insurance benefits are mandatory subjects for bargaining. Allied Chemical & Alkali Workers of America, Local Union No 1 v Pittsburgh Plate Glass Co, 404 US 157, 159; 92 S Ct 383; 30 L Ed 2d 341 (1971), Bastian-Blessing, Division of Golconda Corp v National Labor Relations Board, 474 F2d 49, 52 (CA 6, 1973). Whether the identity of an insurance carrier or administrator is a mandatory subject for bargaining has been discussed by a number of courts. In Bastian-Blessing, supra, the employer, without prior bargaining with the union, unilaterally terminated the employees’ contributory group health insurance plan with Aetna Life Insurance Company and instituted a company self-insurance program. The Sixth Circuit Court of Appeals found that the insurance carri er’s identity was a mandatory subject because the carrier’s identity was inseparable from the benefits offered by the insurance plan. Id., 54. This Court reached a similar result in City of Roseville v Local 1614, International Ass’n of Firefighters, AFL-CIO, 53 Mich App 547, 552-554; 220 NW2d 147 (1974).
In Keystone Steel & Wire v National Labor Relations Board, 606 F2d 171 (CA 7, 1979), the Court addressed the issue of whether the identity of the administrator of the medical insurance program was a mandatory subject for collective bargaining. Under the collective bargaining agreement between the company and the union, Keystone paid all health insurance benefits while Blue Cross & Blue Shield administered the program. During the term of the bargaining agreement, Keystone unilaterally decided to change the administration of the program to Metropolitan Life Insurance Company, which would save over $100,-000 a year in administrative fees. The change in administrators affected the usual and customary fee allowances, did away with the Blue Cross labor consultant, increased the amount of paper work for recovery of claims, and stopped employees’ eligibility for the Blue Cross & Blue Shield conversion plan which enabled employees to continue their Blue Cross & Blue Shield insurance plan after their employment was terminated. However, the change also meant that claims would be processed faster and requests for information answered more swiftly. The union objected by filing an unfair labor charge which claimed that the identity of the administrator was a mandatory subject for bargaining. The Court, affirming the decision of the National Labor Relations Board, found that the change of administrators was a mandatory subject for bargaining because it had a material and significant effect or impact on the terms and conditions of employment. Id., 179. Therefore, where a change in administrator or carrier has a material or significant effect or impact upon the conditions of employment, their identity becomes a mandatory subject for bargaining. The same reasoning should apply to the identity of the policyholder.
In this case, the Super-Med II plan has a profound effect upon the conditions of employment. First, if MESSA has a surplus from the premium, the surplus will be used to either stabilize the rate or increase the benefits. Furthermore, MESSA is responsible for interpretation of the insurance contract and will normally resolve an ambiguity in favor of the employees. MESSA is also responsible for establishing the customary and reasonable fee allowance. Finally, MESSA pays all claims and establishes the claims procedure which is favorable to the employees. Therefore, the change in administrator and policyholder has a material and significant effect upon the conditions of employment and is a mandatory subject for bargaining.
However, the board claims that the decision of who will be the policyholder is a managerial decision which is not a mandatory subject of bargaining. Management decisions which are fundamental to the basic direction of a corporate enterprise or which impinge only indirectly upon employment security are not mandatory subjects for bargaining. National Union of Police, supra, 88. In this case, the policyholder’s identity is not fundamental to the basic direction of the board’s enterprise. Furthermore, it directly affects employment security. Therefore, requiring the board to bargain on the identity of the policyholder does not impinge upon the board’s right to manage the school district.
Affirmed. | [
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Per Curiam.
Defendant pled guilty to three separate violations of the controlled substances law contrary to MCL 333.7401 et seq.; MSA 14.15(7401) et seq. In exchange for the plea, two other similar charges and counts were dismissed. He subsequently was sentenced to concurrent terms of 20 months to 3-1/2 years, 3 years to 7 years and 2-1/2 to 5 years. He now appeals as of right.
On appeal, defendant first argues that his conviction must be set aside because the statute under which he was convicted, the Public Health Code of 1978, violates the title-object clause of Const 1963, art 4, § 24. This identical issue recently has been presented, argued, considered and rejected by this Court. People v Ward, 107 Mich App 38; 308 NW2d 664 (1981), People v Langham, 101 Mich App 391; 300 NW2d 572 (1980), People v Trupiano, 97 Mich App 416; 296 NW2d 49 (1980). All three cases contain excellent analysis of defendant’s argument and conclude that the body of the Public Health Code does not violate the one-object doctrine. We now hold likewise.
Defendant next argues that the statement by the sentencing judge that he was "committed to the position that any involvement with drugs earns either time in jail or in prison” irrevocably tainted the state’s policy that sentences are to be individualized, and, hence, he must be resentenced by a different judge.
We are in full accord with the defendant’s statement of the law. This state is committed to the policy of indeterminate sentencing and it is incumbent upon the sentencing judge to exercise his discretion so as to individualize the sentence to the particular circumstances of the case and the offender. People v Chapa, 407 Mich 309; 284 NW2d 340 (1979), People v McFarlin, 389 Mich 557, 574; 208 NW2d 504 (1973). The sentencing judge is not permitted to abdicate his discretion to individualize the sentence to either local policy or his own preconceived notions.
However, we disagree with the defendant’s application of the above stated law to the instant case. We do not find that the one statement, albeit ill-advised, so overrode all other valid sentencing considerations as to void the sentencing on that basis. The record clearly demonstrates that the judge carefully pointed out different facets of the crimes and defendant’s record so as to render individualized sentences. Defendant was permitted to allocute at length concerning his own rehabilitation; the court considered a presentence report; the court on the record considered sentencing factors and mitigating circumstances; and the resultant sentences were well below the maximum sentences allowed by the law. People v Hooks, 101 Mich App 673, 681-682; 300 NW2d 677 (1980). When the judge’s comment is viewed in light of the totality of the sentencing proceedings, we are convinced that the judge did not base his decision solely on the above comment so as to evidence lack of exercise of discretion in individualizing defendant’s sentences.
Affirmed. | [
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J. N. O’Brien, J.
This is an appeal from the trial court’s grant of the motion for summary judgment brought by certain defendants.
In early June, 1973, plaintiffs, Leo and Mildred Hammond, purchased a home located in South Haven, Michigan, from defendant Ethel Pruitt. For some time prior to 1970, it appears that liquid petroleum gas was supplied to the home owned by Mrs. Pruitt from two 100-pound tanks located next to the house. In 1970, a gas furnace, water heater and cooking stove were installed and a 500-pound tank was placed in the yard in order to provide fuel for the new appliances. Plaintiffs’ complaint alleged, inter alia, that, at the time of installation of these appliances and the 500-pound tank, the former gas line which ran from the two 100-pound tanks into the house was negligently severed inside the basement wall and left uncapped.
In late June, 1973, approximately three weeks after the plaintiffs had moved into the house, the appliances stopped working. Plaintiffs ordered additional fuel from Wanks Home Furnishings, another defendant in this action. A Wanks employee went to the Hammond residence on June 22, 1973, where he saw the large tank in the yard and two small tanks next to the house. He replaced the two small tanks with two full ones and left the gas regulator turned off.
The appliances in the Hammond home worked well until July 13, 1973, when the appliances again failed. After investigating the problem, Leo Hammond discovered that the regulator on the two tanks which had been delivered by Wanks was closed. Hammond, apparently believing that they were connected to the appliances, opened the valve and went into the basement to relight the water heater. The liquid petroleum gas which had escaped into the basement through the severed and uncapped fuel line exploded, severely burning Mr. Hammond.
Plaintiffs sued the seller of the house (Mrs. Pruitt), two real estate agencies and salespersons who represented the seller (Koshar Real Estate Company, Anthony Koshar, Teri Koshar, United Farm Agency and Beverly Matthes), the supplier of the 500-pound tank (Thermogas Corporation and Thermogas Company of Kalamazoo), the installer of the 500-pound tank (Ralph Green, doing business as Green’s Dri-Gas), the supplier of the two full 100-pound tanks (Wanks Home Furnishings), and several parties involved with the installation of the furnace and water heater.
As to the real estate companies and their agents, plaintiffs’ complaint alleged that they negligently and fraudulently failed to disclose the hidden and dangerous defect in the house and that they breached implied warranties of fitness and habitability. Specifically, paragraphs 20 and 21 of plaintiffs’ complaint provide:
"20. Defendants Beverly Matthes, Anthony J. Koshar, Teri Koshar, Koshar Real Estate Company and United Farm Agency, individually or together acted as agents or brokers on behalf of defendant Ethel Pruitt in the sale of said premises.
"21. Said defendants, alone or together:
"a) Negligently and carelessly failed to warn plaintiffs of the hidden, defective and dangerous condition heretofore described.
"b) Defrauded and deceived plaintiffs by their failure to disclose to plaintiffs the existence of said hidden, defective and dangerous condition.
"c) Breached an implied warranty of habitability, fitness, and merchantability with respect to the manner in which said premises were sold.”
The defendants real estate companies and their agents moved for summary judgment on the basis that plaintiffs had failed to state a claim upon which relief could be granted and that no genuine issue as to any material fact existed. GCR 1963, 117.2(1), 117.2(3). The trial court granted defendants’ motion, thereafter denying plaintiffs’ motion for a rehearing.
Because we believe that plaintiffs’ three distinct claims against these defendants deserve separate analyses, we discuss the trial court’s grant of summary judgment as to each claim individually.
The trial judge granted summary judgment as to plaintiffs’ claim of negligent or fraudulent nondisclosure on the basis that plaintiffs’ complaint failed to state a cause of action. GCR 1963, 117.2(1). We look to the pleadings alone in testing their legal sufficiency. Crowther v Ross Chemical & Manufacturing Co, 42 Mich App 426, 429; 202 NW2d 577 (1972). Treating the well-pled allegations of plaintiffs as true, we concur with the trial court because plaintiffs’ claim, on the pleadings alone, is unenforceable as a matter of law and no factual development can possibly justify a right to recovery. Crowther, supra, 430. Obviously, there is no duty to disclose what is not known; and, because plaintiffs’ complaint does not aver knowledge of the defect in the gas line or allege a duty to inspect for hidden defects, plaintiffs’ complaint must fail.
We recognize that fraudulent misrepresentation is a valid theory in Michigan law. The state of the law of misrepresentation is best set forth in Irwin v Carlton, 369 Mich 92, 96-97; 119 NW2d 617 (1963). The Court traced the law of misrepresentation back to Mr. Justice Cooley’s opinion in Converse v Blumrich, 14 Mich 108, 123 (1866), stating:
"Decision in Columbus Pipe & Equipment Co v Sefansky, [352 Mich 539; 90 NW2d 492 (1958)] and Graham v Meyers, [333 Mich 111; 52 NW2d 621 (1952)] relied upon by defendant, did not turn upon defendants’ knowledge of the falsity of the alleged misrepresenta tions and, therefore, the Court did not reexamine the rule of Converse v Blumrich which has been followed in this State whenever such cases present the issue of scienter. The 2 cases relied upon by defendant were decided on appeal against the plaintiffs because, in Columbus Pipe, supra, the proofs failed to disclose reliance was placed upon the representations claimed to be false and because, in Graham, supra, there was no claim or proof that defendants made any representations regarding the defect subsequently discovered by the purchaser. Unfortunately, without acknowledging the limited applicability in Michigan of the general rule stated in 20 Cyc, quoted above, our opinions in both cases made reference generally to its requirement of proof of knowledge. Other cases, not cited by counsel, have likewise referred without qualification, to the same quotation from 20 Cyc or upon prior cases which have done so. See, for example, Smith v Taber, 362 Mich 619 [107 NW2d 761 (1961)]; A & A Asphalt Paving Co v Pontiac Speedway, Inc, 363 Mich 634 [110 NW2d 601 (1961)]; Wheeler v Martin, 364 Mich 41 [110 NW2d 635 (1961)]. But none of these cases required the Court to consider proof of scienter, or the lack thereof. The decisions turned upon absence of proof of misrepresentation. We have found no case in Michigan contrary to the rule of Converse v Blumrich, when determination of the issue of scienter was necessary to decision. As late as last year, in Kroninger v Anast, 367 Mich 478 [116 NW2d 863 (1962)], this Court reaffirmed its adherence to the Converse rule.
"In the case at bar, plaintiff was entitled to have the jury instructed, as he requested the trial judge to do, that defendant might be found guilty of actionable misrepresentations even though the representation was made in good faith believing it to be true. It was error to charge the jury, to the contrary, that plaintiff had the burden of proving that defendant made the representation knowing that it was false or that he made it recklessly without any knowledge of its truth and as a positive assertion that it was so. This error requires our reversal and remand for new trial.”
Here, we find that plaintiffs’ claim properly pleads only nondisclosure of a hidden defect rather than misrepresentation, and, but for our conclusion regarding the misrepresentation issue discussed below, we would conclude that the trial court properly granted summary judgment. GCR 1963, 117.2(1).
From our review of the events below, we are persuaded that there were material issues of fact and that the trial court improperly granted summary judgment under GCR 1963, 117.2(3).
The parties argued and the trial court expressly ruled that defendant Anthony Koshar’s representations to plaintiffs that everything in the basement was brand new, that plaintiffs had nothing to worry about, and that everything was working fine was "puffing” and not a material misrepresentation. Thus, notwithstanding lack of a sufficiently specific pleading alleging fraudulent misrepresentation, the defendants’ motion for summary judgment and the plaintiffs’ response thereto put the matter squarely before the trial judge and properly preserves the matter for appeal.
Michigan law plainly differentiates between actionable frauds by agents and principals. Where a defendant is charged with misrepresentation as a principal, his untrue statement, though made in ignorance of its falsity, is actionable, where plaintiff relies on the statement to his loss. Converse v Blumrich, supra, Irwin v Carlton, supra. But where, as here, an agent is charged with fraud, the plaintiff must show the additional element that the agent made the questionable representation knowing it to be false or made it recklessly without knowledge of its truth and as a positive assertion. Smith v Taber, 362 Mich 619, 622-623; 107 NW2d 761 (1961), A & A Asphalt Paving Co v Pontiac Speedway, Inc, 363 Mich 634, 639; 110 NW2d 601 (1961), Irwin v Carlton, supra, 95-96.
Moreover, Michigan law recognizes that false statements which are made recklessly are the legal equivalent of those which are intentionally false. Callihan v Talkowski, 372 Mich 1, 4; 124 NW2d 788 (1963), Banque de Depots v National Bank of Detroit, 491 F2d 753, 756-757 (CA 6, 1974), Irwin v Carlton, supra. Thus, even if Anthony Koshar had no knowledge of the defect, an issue remains as to whether his statement was recklessly false. The question is not whether he knew that his statement was false, but rather whether his statement, if recklessly false, exerted a material influence, among other considerations, on plaintiffs’ decision to purchase. Callihan, supra, 6.
The factual issue is one for the factfinder and its outcome must be determined after trial. We conclude that, as to defendant Anthony Koshar and Koshar Real Estate, the trial court improperly granted summary judgment. However, as to Beverly Matthes, Teri Koshar and United Farm Agency, plaintiffs presented no facts in avoidance of those defendants’ summary judgment motion and, therefore, the trial court correctly granted summary relief as to those defendants.
We note that paragraph 21(c) of plaintiffs’ complaint alleges breach of implied warranties. The sufficiency of this cause of action was never pursued below nor was it raised on appeal. We consider it abandoned. Likewise, on appeal, plaintiffs raise for the first time a theory of "negligent” misrepresentation based on the relationship between an agent for the seller and the buyer of real property. We do not consider the issue, as it is raised for the first time on appeal. Darin & Armstrong v Ben Agree Co, 88 Mich App 128, 137; 276 NW2d 869 (1979).
Affirmed in part, reversed in part and remanded for proceedings consistent with this opinion. | [
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] |
J. H. Gillis, P.J.
The controversy herein centers on the location of the boundary line separating Grosse Pointe Park from the City of Detroit. Defendant, City of Detroit, claims the boundary line lies 200 feet east of the east line of Alter Road. This location places the line somewhere along the front porches of plaintiffs’ homes. Plaintiffs claim the boundary lies 200 feet east of the center line of Alter Road, placing it in their backyards.
The controversy arose when, in 1971, the City of Detroit decided to assess resident income taxes against plaintiffs, retroactive to 1968. The plaintiffs contested the assessments to the local board of review and to the State Commissioner of Revenue and were denied relief. Suit was instituted in circuit court in 1974 pursuant to MCL 141.505; MSA 5.3194(5). The City of Grosse Pointe Park and the Grosse Pointe Board of Education were permitted to intervene as plaintiffs.
The trial court determined that the boundary set forth by the Legislature clearly and unambiguously placed the line 200 feet east of the center line of Alter Road. The trial court further held that this boundary was controlling notwithstanding any acts of acquiescence. Thus, plaintiffs were residents of Grosse Pointe Park and were not subject to the Detroit resident income tax. The City of Detroit appeals this determination.
Prior to 1907, the Village of Fairview separated the City of Detroit from the Township of Grosse Pointe. On March 27, 1907, the Legislature passed a bill providing for the annexation of a portion of the Village of Fairview to the City of Detroit. The boundary was described as lying "west of a line two hundred feet east of Alter Road”. 1907 LA 455 (hereinafter Act 455).
Approximately two months later, the Legislature enacted 1907 LA 534 (hereinafter Act 534) providing for the incorporation of the Village of Grosse Pointe Park. The western boundary of the village was described as "beginning at a point five hundred feet south and two hundred feet east of the center of Mack Road and Alter Road”.
On October 15, 1907, the Michigan Supreme Court declared Act 455 unconstitutional because its title was not broad enough to cover its scope. Village of Fairview v Detroit, 150 Mich 1; 113 NW 368 (1907). Nine days later the Legislature again passed a bill providing for the annexation of a portion of the Village of Fairview to the City of Detroit. 1907 (Ex Sess) LA 1 (hereinafter Act 1). This act contained the same boundary description as that found in Act 455.
In 1909, the Legislature enacted the Home Rule Cities Act, 1909 PA 279; MCL 117.1 et seq.; MSA 5.2071 et seq., which provides a procedure for the incorporation of cities and villages. The City of Grosse Pointe Park was incorporated in 1950 by the procedure set forth in the Home Rule Cities Act. The boundary was described as lying 200 feet east of the east line of Alter Road.
Defendant claims the various statements of the boundary line have rendered the location ambiguous and urges this Court to adopt the last statement of the boundary. Alternatively, defendant claims the doctrine of acquiescence should be employed to determine the location of the boundary even if its location is not ambiguous.
The fixing of municipal boundaries is a legislative function. Presque Isle Prosecuting Attorney v Rogers Twp, 313 Mich 1, 9; 20 NW2d 787 (1945). The courts will not disturb a legislative determination in this regard. Mitchell v City of Negaunee, 113 Mich 359; 71 NW 646 (1897). Nor will the courts extend boundaries by judicial construction to include territory outside a legislatively established line. People v Bouchard, 82 Mich 156; 46 NW 232 (1890).
In the instant case, the first legislative statement of the boundary was made in Act 455. When Act 455 was held unconstitutional, Act 534 became the effective legislative statement of the boundary. Act 534 set the boundary 200 feet east of the center line of Alter Road. The subsequent statement of the boundary in Act 1 is not inconsistent with this statement of the boundary. Act 1, using the same language as Act 455, simply described the boundary as being 200 feet east of Alter Road. It did not state whether the distance should be measured from the center or the edge of Alter Road.
The procedure followed in 1950 by the City of Grosse Pointe Park was for the purpose of incorporating the city, not to change its boundaries nor to annex to Detroit the 33 feet of disputed area involved herein. Thus, despite the description of the boundary as being 200 feet east of the east line of Alter Road, the boundary remained as set forth in Act 534.
Defendant claims that plaintiffs have acquiesced in a boundary 200 feet east of the east line of Alter Road and that this acquiescence has fixed the boundary notwithstanding any legislative statement to the contrary. The doctrine of acquiescence provides that acquiescence in a boundary for the statutory period or after resolving a dispute as to its location fixes the boundary. Corrigan v Miller, 96 Mich App 205; 292 NW2d 161 (1980), Jackson v Deemar, 373 Mich 22; 127 NW2d 856 (1964). Several jurisdictions have held that this doctrine does not apply to municipal boundary disputes wherein the boundary line has been clearly fixed by the Legislature. Crescent City v Dodd, 131 Cal App 153; 18 P2d 999 (1933), Town of Brookline v Town of Newfane, 126 Vt 179; 224 A2d 908 (1966), Town of Stephens City v D M Zea, 204 Va 88; 129 SE2d 14 (1963).
In urging this Court not to follow this line of cases defendant cites Village of Elberta v City of Frankfort, 347 Mich 173; 79 NW2d 616 (1956). The trial court in Elberta decided a municipal boundary dispute by applying the doctrine of acquiescence. The Michigan Supreme Court adopted the trial court’s opinion as the opinion of the Court. However, the Supreme Court added to the opinion by stating what it considered to be the controlling fact:
"The ultimate fact of this case is that the Benzie county board of supervisors acted first, with full and lasting legal effect upon corporate status of the peninsula. When the village of Frankfort was later incorporated, with enacted inclusion of the peninsula as part of the village, the peninsula was no longer available for inclusion by such means. It was then a part of Gilmore township and, by operation of law and subsequently-pursued legal proceedings, became and is now a part of Elberta village.” Id., 185.
This statement indicates that the Court did not consider acquiescence relevant to the determination of the boundary. The Court considered the boundary set by the first statement of its location having legal effect. Subsequent actions could not alter this location.
The Supreme Court’s resolution of the boundary dispute in Elberta indicates that Michigan follows those jurisdictions holding the doctrine of acquiescence inapplicable to municipal boundary disputes in which the boundary line has been clearly fixed by the Legislature. The boundary between Grosse Pointe Park and the City of Detroit was set by the Legislature in 1907 at 200 feet east of the center line of Alter Road. No subsequent acts of acquiescence could move that line. Plaintiffs are residents of Grosse Pointe Park.
Affirmed. No costs, a public question being involved. | [
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Per Curiam.
The Director of the Michigan State Police petitioned for an order to show cause why an injunction should not issue against respondents for failure to comply with school fire safety standards, MCL 388.851 et seq.; MSA 15.1961 et seq., MCL 29.1 et seq.; MSA 4.559(1) et seq. A hearing was held, and the trial court, after filing findings of fact and conclusions of law, enjoined respondents from using the North Star Baptist Church building as a school until written approval for school building usage was obtained from the state fire marshal. Respondents appeal, and we affirm.
In September of 1978, the North Star Baptist Church established the North Star Academy, the church members feeling that they were required by their faith to give their children a Christian education. The entire school curriculum is oriented toward religion.
The school is located in the same building which houses the North Star Baptist Church. Six students were enrolled in the school during the 1978-79 term, and 20 were enrolled by the end of the 1979-80 term. The school operates from September to May, six hours a day, five days a week. The students do not attend public school or any other private school. Respondents obtained no written approval from the state fire marshal or from the Department of Education, as is required by the aforementioned statutes, to use the building as a school.
Inspections of the building were conducted by Donald St. Arnauld, an officer from the state fire marshal’s office, who reported the following violations: the structural members of the building consisted entirely of wood and did not have a one-hour fire resistance rating, MCL 388.851(b); MSA 15.1961(b); 1979 AC R 29.31; and the heating plant walls consisted of wood framing and drywalls, also not having a one-hour fire resistance rating, MCL 388.851(d); MSA 15.1961(d); 1979 AC R 29.151.
Respondents refused to comply with the school fire safety standards and refused to comply with an order of abatement issued by the state fire marshal’s office. School usage continued until the injunction was issued by the trial court.
The primary contentions presented by respondents in this appeal were rejected on substantially identical facts in State Fire Marshal v Lee, 101 Mich App 829; 300 NW2d 748 (1980). We agree with that holding but offer our own reasons.
Respondents contend that the application of school fire safety regulations to a building used both as a church and as a school is unreasonable and arbitrary and imposes an unconstitutional burden on the free exercise of their religious beliefs.
While it is true that religious beliefs may not be restricted or regulated, the state, acting within its police powers, may regulate religious practices which run contrary to the state’s interest in the health, safety, and welfare of its citizens. See Cantwell v Connecticut, 310 US 296; 60 S Ct 900; 84 L Ed 1213 (1940). The party alleging a First Amendment violation has the burden of proving that the regulation in question imposes a burden or restriction on the exercise of his or her religious beliefs. Sherbert v Verner, 374 US 398; 83 S Ct 1790; 10 L Ed 2d 965 (1963). In the present case the trial court found that the church members believed that they were required by their religious precepts to establish a school and give their children a Christian education, and we concede that conducting the school is an exercise of their religious beliefs.
However, the fire safety regulations do not prevent respondents from operating a Christian school. Respondents are prevented only from conducting the school in a building which does not meet minimum fire safety standards applicable to all schools, public or private. The burden placed on respondents’ practice of their religion is at most financial.
Involved here are laws concerned entirely with secular conduct, and, as such, they are valid unless their application is arbitrary or otherwise unreasonable. Gillette v United States, 401 US 437; 91 S Ct 828; 28 L Ed 2d 168 (1971), reh den 402 US 934; 91 S Ct 1521; 28 L Ed 2d 869 (1971), Braunfeld v Brown, 366 US 599; 81 S Ct 1144; 6 L Ed 2d 563 (1961), Walsh v Louisiana High School Athletic Ass’n, 616 F2d 152 (CA 5, 1980). The rules and regulations at issue have, as their purposes, the prevention of fire and the promotion of the health, safety, and educational interests of the state’s citizens. This is clearly a secular purpose. The Legislature has determined that schools present a unique situation requiring higher standards of fire prevention and safety than buildings used for open meetings.
Although the imposition of these fire safety standards might possibly prevent some churches from providing a place where their children can receive a Christian education, we conclude that respondents failed to carry the burden of proving that these fire safety laws and regulations impose an impermissible burden on the free exercise of their religious beliefs.
Respondents next contend that their use of the building as a school was incidental to its occupancy as a church and that, therefore, the fire safety regulations pertaining to a church rather than a school should be applied. Respondents base their argument on § 16(2) of the rules promulgated by the state fire safety board, which rules provide certain requirements for school buildings only. For purposes of the rules, a school building is defined as follows:
" 'School building’ or 'building’ means a building or structure used by 6 or more students for instruction such as a school, university, college, or academy. In areas where instruction is incidental to some other occupancy the fíre safety requirements for that occupancy shall apply.” (Emphasis supplied.) 1979 AC R 29.16(2).
Respondents argue that the North Star Academy is incidental to the North Star Baptist Church and thus is not located within a "school building”. We disagree. The above definition of a school building does not exclude the situation where a school is incidental to some other occupancy, but where instruction is merely incidental to some occupancy other than a school. Therefore, despite the definite church involvement here, since the building is used as a school, and for instruction therein, we conclude that the activity being conduted in the North Star Academy is not incidental instruction as that term is used in the above-quoted rule. Respondents’ argument is without merit.
The above rule reflects the realization that there are many instances where "incidental” instruction takes place outside of a "school”. Seminars are often held in homes, offices, motels, or other buildings totally unconnected to a school. Instruction often takes the form of on-the-job training. In these cases the primary occupancy exists contemporaneously with any incidental instruction. Here the North Star Baptist Church meets the definition of a "school building”; thus the fire safety regulations for schools apply.
We find no merit to respondents’ contention that the trial court improperly limited their cross-examination of a witness. The fire inspector’s opinion on the merit of the safety regulations, or on the wisdom of applying those regulations here, is, as the trial court stated, nothing more than a legal argument. Furthermore, the fire inspector was not qualified as an expert witness in "safety”. He was qualified to inspect buildings, to detect any noncompliance with safety standards, and to give testimony regarding such noncompliance.
Affirmed. No costs, a public question. | [
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] |
Ostrander, J.
The relations of complainants and defendant are respectively those of vendor and vendee in an executory contract for the purchase and sale of certain premises; defendant being in possession. The vendee defaulted, and the vendors elected to forfeit and determine the contract relations and to repossess the premises. Written notice to this effect was given defendant and was followed by proceédings before a circuit court commissioner to recover possession. The commissioner, and later the circuit court on appeal, made an order for restitution of the premises, determining and stating the extent of defendant’s default —the sum due and unpaid on the contract. The complaint was prepared and was signed and verified in Ottawa county and was transmitted by mail to the circuit court commissioner in Muskegon county, who issued the summons two days after the complaint was verified. The complaint was made on the same day that the last notice of forfeiture and to quit was served on defendant. This was February 2, 1914. The notice was served in the morning and the complaint was made afterwards. An earlier notice, which failed to describe a portion of the land, but which declared the contract under which the premises were held forfeited, was served on defendant June 26, 1913.
No testimony was offered by defendant, who rested in the court below and in this court upon the propositions: .
(1) That the circuit court commissioner did not acquire jurisdiction because summons was not issued on the day the complaint was verified; (2) the complaint was a nullity because verified in Ottawa county while the lan'd sought to be recovered is in Muskegon county; (3) the complaint was made too soon, because defendant was entitled to the day on which the last notice was given to comply therewith and vacate the premises.
We are referred to no authority sustaining either proposition, and no good reason is given, and we know of none, for regarding them as meritorious. Complainants elected in June, 1913, to declare the contract forfeited. Out of abundant caution, notice of this election was repeated. Defendant owes a sum of money, by reason of which and complainants’ election he is wrongfully in possession of the premises.
The judgment saves all of his rights, and is affirmed.
McAlvay, C. J., and Brooke, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred. | [
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] |
Ostrander, J.
(after stating the facts). The Michigan Railroad Commission is a body possessing limited powers, to be ascertained by reference to the statute creating it. It may enforce its orders by application to the courts, and its orders are reviewable by the courts. In proceedings before it, unnecessary formality is, and should be, dispensed with, and complaints such as were made in the matters now before us ought to be considered, as the commission in its opinion says, with reference to “the real substance of the issue presented.”
But the necessity for distinct issues,, discoverable from the record which is made, is apparent, since it is by the record that the court must determine whether the jurisdiction of the commission has been exceeded. These observations are made here because it seems to us that the complaint which set the commission in motion is lacking in certainty; the real issue — the one determined by the commission — not being the one immediately suggested by reading the complaint.
Referring to the complaint, we find it states that “it is the practice and regulation” of the said railroad company, “to require the execution of a certain lease or agreement, a copy of which is hereto attached and marked ‘Exhibit A/ as a condition precedent to the construction and the maintenance of a switch connection with the private side track of any shipper tendering traffic for transportation,” and that the practice or regulation is unreasonable, unjust, discriminatory, and in violation of the act. Referring* to the act, it is found that the legislature has enjoined upon railroads the duty “upon application of any shipper tendering traffic for transportation” to construct, maintain, and operate upon reasonable terms a switch connection with any private side track, when such connection is reasonable, practicable, and can be put in with safety, and will furnish sufficient business to justify the construction and maintenance of the same. Section 6 (a). Reading the statute and that portion of the complaint referred to together, it would appear that the railroad company, instead of obeying the statute^ made it a practice to disobey it, and to refuse switch connections with private side tracks, unless an objectionable contract was first made with the shipper. No such complaint was considered by the commission. The form of agreement attached to the complaint indicates that no such issue was intended to be presented. The agreement relates entirely to the construction and maintenance of a side track by the railroad company to the plant of some person or corporation. When completed and executed, it would embody the terms upon which the railroad company undertook, upon request of the shipper, to construct and maintain a side track connecting with its line of road running to the plant or place of business of the shipper. The order of the commission relates, not at all to establishing switch connections with private side tracks, but wholly to side-track agreements and leases, and, attached to the order, is a form of agreement containing “the maximum provisions that may be required by the railroad as preliminary to the construction or operation of side tracks after the date of this order, where such side tracks are to be constructed or where leases or agreements now in existence may have expired.” The railroad company seems, however, not to have mistaken the question intended to be raised, as is indicated by the answer which was filed, and so we proceed to examine the arguments made for and against the validity of the order of the commission.
The commission found: First, that it was a practice and regulation of the railroad company to exact from those requesting the building and maintenance of side tracks an agreement or contract; second, that “the existing side-track leases and agreements required by said defendants in this State contain unreasonable, unjust, and discriminatory provisions,” and that the regulation and practice of requiring them is unreasonable, unjust, and discriminatory, and it determined that defendants cease and desist from the regulation and practice of requiring such agreements “as described in the said petition in this cause,” and that “side-track agreements and leases executed after the date of this order shall not contain requirements in any way providing” — enumerating provisions found to be unreasonable, unjust, and discriminatory. In effect, the commission decided, not that railroad companies shall construct and maintain side tracks in any case, not that construction and maintenance may not rest upon agreement, but that, if they do decide to agree to construct and maintain them, they — and this, of course, includes the shipper and railroad — may not agree to certain things. And the order is universal, applying to every case, whatever the circumstances of the case may be. In my opinion, the validity of the order must be denied,
1. If the duty to build, maintain, and operate so-called private spur or side tracks was an absolute duty of the railroad company, no universal rule governing the conditions and circumstances under which the duty should be performed could be made. The reasonableness of an order requiring the performance of such a duty would be always open to question, and, manifestly, in each case, the peculiar circumstances would determine the question of the reasonableness of the order. Oregon Railroad & Navigation Co. v. Fairchild, 224 U. S. 510, 528, et seq. (32 Sup. Ct. 535, 540). It is true, and has been already stated, that the order in question does not require the railroad company to build or maintain or operate any track. The order was made, however, in contemplation of the fact that shippers desire side tracks to be constructed, and that railroad companies accede to the desire and build side tracks. The right to build at all is denied, unless the order be complied with. This is a practical denial of a hearing in each case, if one is desired, and a prejudgment of rights. *
“Since the decision in Wisconsin, etc., Railroad v. Jacobson, 179 U. S. 287 [21 Sup. Ct. 115], there can be no doubt of the power of a State, acting through an administrative body, to require railroad companies to make track connection. But manifestly that does not mean that a commission may compel them to build branch lines, so as to connect roads lying at a distance from each other; nor does it mean that they may be required to make connections at every point where their tracks come close together in city, town, and country, regardless of the amount of business to be done, or the number of persons who may utilize the connection, if built. The question in each case must be determined in the light of all the facts, and with a just regard to the advantage to be derived by the public and the expense to be incurred by the carrier. For while the question of expense must always be considered (Chicago, etc., Railroad v. Tompkins, 176 U. S. 167, 174 [20 Sup. Ct. 336]), the weight to be given that fact depends somewhat on the character of the facilities sought. If the order involves the use of property needed in the discharge of those duties which the carrier is bound to perform, then, upon proof of the necessity, the order will be granted, even though ‘the furnishing of such necessary facilities may occasion an incidental, pecuniary loss/ But even then the matter of expense is ‘an important criteria to be taken into view in determining the reasonableness of the order,' Atlantic Coast Line Railroad v. North Carolina Commission, 206 U. S. 1, 27 [27 Sup. Ct. 585, 11 Am. & Eng. Ann. Cas. 398]; Missouri Pacific Ry. v. Kansas, 216 U. S. 262 [30 Sup. Ct. 330]. Where, however, the proceeding is brought to compel a carrier to furnish a facility not included within its absolute duties, the question of expense is of more controlling importance. In determining the reasonableness of such an order, the court must consider all the facts — the places and persons interested, the volume of business to be affected, the saving in time and expense to the shipper, as against the cost and loss to the carrier. On a consideration of such and similar facts the question of public necessity and the reasonableness of the order must be determined. This was done in Wisconsin, etc., Railroad v. Jacobson, in which, for the first time, it was decided that a State commission might compel two competing interstate roads to connect their tracks.
“It appeared on an examination of the facts in that case that on one of the lines there was an immense supply of wood, for which there was a great demand at points on the other, where there was none, and that if the connecting track was installed, there would be a saving-in time and freight on this large volume of business. It also appeared that many cattle were raised on one line, for which there were important markets on the other, and that without the track connections these cattle would have to be hauled over a much longer route, with a resulting loss in weight and value. The advantage to the public was so great that the order requiring the track connection was sustained, in spite of the fact that one of the roads was thereby deprived of the revenue which it would otherwise have received for the longer haul. But the court said (179 U. S. 301 [21 Sup. Ct. 1115]), that:
“ ‘In so deciding we do not at all mean to bold that under no circumstances could a judgment enforcing track connection between two railroad corporations be a violation of the constitutional rights of one or the other, or possibly of both such corporations. It would depend upon the facts surrounding the cases in regard to which the judgment was given. The reasonableness of the judgment with reference to the facts concerning each case must be a material, if not a controlling, factor upon the question of its validity. A statute, or a regulation provided for therein, is frequently valid, or the reverse, according as the fact may be, whether it is a reasonable or an unreasonable exercise of legislative power over the subject-matter involved. And in many eases questions of degree are the controlling ones by which to determine the validity, or the reverse, of legislative action.’ ”
Oregon Railroad & Navigation Co. v. Fairchild, supra.
The language quoted relates to a requirement that a track connection be established between railroads, but the reasoning is pertinent here.
The universality of the rule established by the order of the commission condemns it.
2. Assuming, what is doubtful, that the complainant railroad company in every case, no matter what the circumstances surrounding it, would refuse to make agreements other than the one found to be objectionable, a practice or regulation within the meaning of the act is not thereby made out. This sufficiently appears from a reading of the act and the particular context wherever these terms are used. For example, in section 22 (a) it is provided that:
“Upon complaint of any person, firm or corporation * * * that any regulation or practice whatsoever affecting the transportation of persons or property, or any service in connection therewith, are in any respect unreasonable or unjust, * * * the commission may notify the railroad complained of that complaint has been made, and * * * may proceed to investigate the same. * * * ”
If a side track is constructed, and cars are moved over it, the transportation of persons and property may be affected. Whether a side track shall be built, and, if built, the relations which shall be established by agreement between the railroad constructing it and the private shipper, are not usually, if ever, in the absence of legislation, matters of public concern. By section 14 of the act the commission is given control over private side tracks in so far as the same are used by common carriers, and innumerable cases may be conceived in which it might be called upon, within its powers, to exercise such control. But a practice of the railroads to build and maintain side tracks only by an arrangement of its own and the shippers’ private rights is not, in the absence of legislation, a practice to be controlled by the commission.
3. What the commission did was, not to administer, but enact, a law. The legislature alone can impose upon railroads the duty to construct private side tracks. When the complaint was made, it had imposed no such duty. Having the right to construct or refuse to construct or maintain a particular track, the complainant had the right to impose the terms upon which it would construct and maintain it. This is settled beyond doubt by our own decisions and those rendered in other jurisdictions. Mann v. Railroad Co., 135 Mich. 210 (97 N. W. 721). This right the order of the commission would take away.
Without entering upon an examination of many interesting phases of the subject-matter discussed in the briefs, we are content to rest decision upon the points above stated; the more so because the legislature, after the complaint was made to the commission, and before the decision of the commission was handed down, imposed upon railroads, in terms, the duty to build spur tracks to and to and upon the grounds of shippers upon certain terms and subject to certain contingencies. The enactment (Act No. 300, Pub. Acts 1909, § 6, subd. “5”) reads:
“Every railroad shall provide a reasonable, adequate and suitable spur track to and to and upon the grounds of any mill, elevator, storehouse, warehouse, dock, wharf, pier, manufacturing establishment, lumber yard, coal dock or other industry or enterprise, wherever such spur track does not necessarily exceed two miles in length and is practically indispensable to the successful operation of any such industry or enterprise, and shall connect such spur track with its main track and operate the same in connection therewith: Provided, that such railroad may require the person or persons, firm, corporation or association primarily to be served thereby, to pay the legitimate cost and expense of acquiring by condemnation or purchase where necessary the rights of way for such spur track, and of constructing the same, in Which case the total estimated cost thereof shall be deposited with the rail road before the railroad shall be required to incur any expense whatever therefor. No railroad shall, however, be required to provide a spur track where it is unusually unsafe and dangerous: Provided, that in the event of the failure of said shipper and the said railroad to agree, the necessity for, reasonableness of, and practical safety of such spur track and connection and the operation thereof shall be decided by the said Michigan Railroad Commission upon complaint and hearing as provided in section twenty-two of this act.”
This act was called to the attention of the commission by the answer of the railroad* We need not now inquire whether this legislation may be sustained. Assuming it to be valid, the duties of the commission are pointed out with, respect to disagreements between the railroad and a shipper in a particular case. If the legislation shall be held to be invalid, it is nevertheless an expression of legislative opinion that the commission had theretofore no such powers as were assumed in the matter at bar.
The decree of the circuit court is reversed, and a decree will be entered in this court in accordance with the prayer of the bill.
McAlvay, C. J., and Stone, Moore, and Steere, JJ., concurred. Brooke, Kuhn, and Bird, JJ., did not sit. | [
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Per Curiam.
Appointed by the probate court under Act No. 253, Public Acts of 1899 (4 How. Stat. [2d Ed.] § 10710 et seq.), trustee of an estate belonging to himself and his brother, the estate being created by the will of their father, Clayton H. Hoffman filed certain accounts in probate court at the instance of the administrator of his brother’s estate and the guardian of his infant child. After a hearing in probate court, an appeal from the order entered was taken to the circuit court. In the circuit court the cause was tried by the court without a jury. A finding was requested and was made and filed. Appellants, the administrator and guardian, filed exceptions and moved to amend the finding. One additional finding was made; in other respects the motion was denied. Exceptions were filed to the refusal to amend the finding as requested. A judgment was entered, and the record is brought into this court for review upon assignments of error 33 in number.
An examination of the brief for appellants and of the errors assigned suggests the inquiry whether there is any point properly open to review in this court. Neither party presented to the trial court points of law to be passed upon as the rule permitted them to do.
It is alleged as error that the facts found do not support the judgment. It is not alleged, either in exceptions or assignments of error, that any finding is wholly unsupported by evidence. It is alleged in some of the exceptions, and restated in the assignments of error, that certain findings “are contrary to the fact and the evidence in said cause.” To this allegation there is added, in some instances: “And is erroneous in law.” It is assigned as error (assignments 19-29) that the court refused to amend the finding as requested, but these and most of the other assignments rest ultimately upon what the facts are found to be. No objection is made to the form or extent of the findings. Circuit Court Rule 26 reads, in part, as follows:
“(d) The finding of the facts by the court shall be treated in all respects as a special verdict, and error may be alleged that the same does not support the judgment, as on a special verdict.”
It is only where there is a total want of evidence or where the finding is contrary to the undisputed evidence that the facts found by the trial court can be overturned. Upon this point the decisions of this court have been many times repeated. See notes to Stevens’ Rules of Practice (2d Ed.).
The first two assignments of error are based upon rulings admitting testimony. We do not find either discussed in the brief. The assignment that the facts found do not support the judgment, which is open for our consideration, does not appear to be discussed in the brief.
We therefore affirm the judgment. | [
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Bird, J.
Having been denied a decree of divorce in the circuit court, complainant appeals to this court for relief. In her bill she charges defendant with extreme cruelty. The parties were married in December, 1904, and separated in June, 1910. During that time they lived upon defendant’s farm, a few miles distant from the city of Ionia. When they separated, complainant went to her mother’s home in Ionia, taking with her their only child, a boy of four years. Defendant remained on the farm. The extreme cruelty alleged consists principally of a free use of profanity, lack of attention at the time of her confinement, grumbling over household expenses, refusal to accompany her to church, staying out late nights, visiting houses of ill fame, using abusive and profane language to her, using intoxicating liquors, and, on one occasion, just prior to her leaving, with personal violence.
The complainant’s case in chief was not a strong one. Upon cross-examination, much of her direct testimony was explained and modified. As illustrative of this, she stated upon cross-examination that, while defendant grumbled about the household expenses, he always purchased what she requested, and that a credit was established by him at a store 2% miles away, from which she had authority to order supplies over the phone, and that on several occasions she did so, and the supplies were brought to her by some of the neighbors.
It appeared that, while defendant was disinclined to attend church, he opened the way for her to attend by furnishing her a driving horse and offering to care for the child. His staying out late nights was explained by the fact that he was a stock buyer, and loaded and shipped his cattle at night at the city of Ionia, several miles away. She had no knowledge of defendant’s visiting houses of ill fame, and she admitted that her charge was based upon the suspicion of herself and mother. The only instance that complainant knew of defendant’s intoxication was when he was confined to the house and suffering with blood poison in his arm. The doctor brought some whisky, and on one occasion he took too much of it and became intoxicated. She had seen him at other times when she thought he had been drinking. The extent to which complainant testified that he was addicted to the use of profanity was not corroborated by any other witnesses. The personal violence occurred while defendant was ill with blood poisoning. It was not serious. Her testimony shows- that he was not as attentive as he should have been during her confine-, ment, but at the time her mother was with her and had sole charge of her care.
Passing over defendant’s denials and explanations of her charges, and the testimony of her own witnesses, we think her own testimony falls short of making a case of extreme cruelty under the statute. Her witnesses corroborated her testimony in some of its phases, but not on any of the more serious charges. And it appears from her own testimony that defendant furnished her a comfortable home, dressed her in keeping with, their station in life, provided a good table, finished paying for her piano, which she had bought before marriage, and, aside from the things complained of, he was generally kind to her.
The record also shows that the defendant respected and loved his wife, and that, after she left his home, he, in company with .one of the neighbors, went to Ionia to her mother’s home to see her and induce her to return. When complainant’s mother saw them approaching the house, she informed defendant that he could not come in, and ordered and pushed him off the premises. The complainant, however, came out and talked with them in the street. The defendant expressed regret over their differences and begged her to return, but she replied that she would not do so. It appears that complainant’s mother was opposed to the marriage, and it is charged by counsel that she was “the fly in the ointment.” However this may be, a reading of the record convinces us that the mother was not very helpful in keeping the parties together. We are of the opinon that the chancellor arrived at the proper conclusion when he denied complainant the relief prayed for.
The decree may be affirmed. No costs will be allowed either party in this court.
McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred. | [
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Ostrander, J.
The testimony given by plaintiff was to the effect that before beginning suit he knew, and told his attorney, that he had signed a receipt which he had not read; that it might have been a receipt in full, and, if it was, it was not binding, because in that case a fraud had been perpetrated, 'the physician having misrepresented his (plaintiff’s) condition; that he did not seek to learn what was the form of the receipt, and did not tender to defendant the money which he received when the receipt was given. The declaration was read to him, and he knew what it contained upon the subject. The declaration contains the following:
‘•'That because of his injuries aforesaid he was directed by one Bockus, manager of said plant No. 4 of said defendant, to see and consult Dr. Walter G. Paterson, of the city of Detroit, who was one of the physicians and surgeons of the said defendant, who treated said plaintiff on séveral occasions, and who represented to said plaintiff that he was not injured internally or permanently, which he relied upon and hoped and believed at the time; that some time after said treatment by said Paterson he put in his time which he had lost by reason of said injuries to said defendant at, to wit, seventy ($70.00) dollars, for 14 days’ work lost time, at five ($5.00) dollars a day, which was the amount he received from said defendant, and said defendant offered to pay him forty-two 50/100 ($42.50) dollars for his said lost time, which said plaintiff accepted, and received said money on or about the 23d day of December, 1911, and he signed a receipt for the same, but did not examine it closely; that if said receipt was made in full for his said injuries and action aforesaid, he hereby avers and charges that it was signed by mistake, and was also a fraud upon him because of the statements and representations of the said Dr. Walter G. Paterson, said physician and surgeon of said defendant, concerning his physical conditions, and should have no binding effect upon him, and is null and void.”
A verdict was directed for defendant when plaintiff’s proofs were concluded, upon the ground that plaintiff was bound, before bringing his suit, to tender to defendant a sum of money paid to him, and for which he receipted in the following form:
“Receipt and Release.
“Dec. 19, 1911.
“Received from the Studebaker Corporation the sum of $42.50, which I, being of full age, acknowledge to be in full accord and satisfaction of the disputed claim growing out of the bodily injury sustained by me on or about September 27, 1911, for which bodily injury I claim the said Studebaker Corporation to be legally liable, which liability is expressly denied; and in consideration of the said sum to be paid, I hereby remise, release, and forever discharge the said Studebaker Corporation, its heirs, administrators, and assigns, from any and all actions, causes of action, claims, and demands for or upon or by reason of any damage, loss, injury, or suffering which before has been or which thereafter may be sustained by me in consequence of such accident and injury.
“Witness my hand and seal the day and date first above written.
“Harry E. Crawley.
“Witnessed by Robert E. O’Brien.
“Robert E. O’Brien.”
Error is specifically assigned upon this ruling. When the bill of exceptions was settled, the trial judge added to his certificate the following:
“While I have not considered favorably or unfavorably any of the grounds raised by counsel for defendant in its motion for direction of a verdict, other than the matter of tender, by stipulation of counsel for both sides, in order that all matters raised in the motion of defendant may be considered in the event of appeal, I direct a verdict upon each and all of the grounds raised by defendant in its motion for direction.”
Upon this errors are not specifically assigned. The stipulation referred to is:
“It is hereby stipulated and agreed by and between counsel for the respective parties in the above mentioned cause that inasmuch as the lower court only passed upon the question of tender, and inasmuch as the testimony on plaintiff’s side of this .case is contained in this record, that all the questions included in defendant’s motion for the direction of a verdict may be considered by the Supreme Court, the same as if they had been passed on by the lower court.”
The motion for a directed verdict was based upon the grounds that there had been accord and satisfaction : that defendant’s negligence was not proven; that plaintiff accepted the risk of the injury, and was himself guilty of negligence contributing thereto, as well as the ground that no tender had been made.
With respect to the error specially assigned, it is contended by the appellant that he made 'a case relieving him from the duty of tendering to defendant the money it had paid to him in settlement. He cites and relies upon Mullen v. Old Colony Railroad, 127 Mass. 86 (34 Am. Rep. 349), Stewart v. Railroad Co., 141 Ind. 55 (40 N. E. 67), Bliss v. Railroad Co., 160 Mass. 447 (36 N. E. 65, 39 Am. St. Rep. 504), Butler v. Railroad Co., 88 Ga. 594 (15 S. E. 668), in which cases the principle applied is that, as with respect to a disputed or unliquidated demand, an accord is matter of
contract, preceding or accompanying satisfaction, if the contract is not made and the money paid and received pursuant thereto, but the money is paid and received on some other account, it need not be tendered back before bringing suit upon the demand. In Mullen v. Old Colony Railroad, supra, the court, referring to the rule that tender of the sum received must precede suit, if it is claimed the accord was fraudulently brought about, said:
“The principle * * * applies to those cases only where that which was received, and which must be returned, was the consideration of the contract or settlement which the receiver intended to make, and understood that he was making, and which he seeks to avoid by reason of fraudulent practices of the other party which led him to agree to its terms. It does not apply to cases where a party holds out that he gives the consideration for one thing, and by fraud, obtains an agreement that it was given for another thing.
“In the case at bar, if the evidence for the plaintiff was true, he signed the paper, which purports to show a settlement of his claim, believing it to be a totally different paper from what it, in fact, was. Signing in that belief, in consequence of the fraudulent representations of the defendant, he is not bound by it, because he never made the agreement which the paper indicates. He is not attempting to avoid a contract which he has made, but is showing that he did not make the contract which he apparently made. If this fact is established, it establishes the further fact that he did not receive the money, which was paid him when the paper was signed, in consideration of the settlement of his claim; for the only ground on which the effect of the paper is destroyed is that it was not his intelligent act, but was fraudulently procured by the artifice of the defendant, who knew that he had not made the settlement and had not received a consideration for a settlement.”
The court, in Butler v. Railroad Co., 88 Ga. 594, 598, 599 (15 S. E. 668), states and applies the rule in the following:
“It is quite true that if the plaintiff had made any settlement or entered into any accord touching the injury complained of in his declaration, and now sought to open the same on the ground of fraud, he would have to tender back any money which had been paid to him in consequence or by way of execution of the settlement or accord. East Tennessee, etc., R. Co. v. Hayes, 83 Ga. 558 [10 S. E. 350]. The reason is that to attack a contract on the ground of fraud involves an admission that such a contract was made, and also an election to rescind it; and the rule of rescission always is that the opposite party must be placed in statu quo. But where the plaintiff, instead of attacking a contract for fraud, merely attacks a writing which purports to embody such a contract, and alleges that his signature to the writing was appended without knowledge of its contents and under the belief that he was signing another document, he neither admits that the contract was made nor seeks to rescind it. His grievance is not that he was induced by fraud to enter into a contract, but that a fraudulent advantage was taken of him by procuring his signature to a writing, which purports to set forth a contract into which he never entered. On his theory, the money he received was no fruit of such a contract, and. could not have been, because none such was ever made. The money, as he contends, was paid him as wages which he claimed then, and still claims, as due hirn under a previous and wholly different contract. Taking all he says as true, he has received nothing which he ought not to have had independently of any agreement, fraudulent or not fraudulent, touching his claim for damages on account of the personal injury sued for, and he denies distinctly that the contract set forth in the writing was ever made. Mullen v. Railroad Co., 127 Mass. 86 [34 Am. Rep. 349]. The true question is, therefore, not whether he could be heard without tendering back the money, but whether, as a rule of evidence, he is estopped from'controverting the truth of the contents of the writing. That he is an illiterate person is apparent from the fact that he subscribed the instrument by making his mark, his name being written by some one else. He testifies that he cannot read, and that the document was not read over to him, and that he thought he was signing an ordinary pay roll. In the course of his testimony he details the circumstances which led up to the payment, and, while he does not explain fully why he thought he was signing an ordinary pay roll, the facts which he mentions are strongly suggestive of misrepresentation on the part of one or more agents of the company, together with erroneous inferences made by his own mind, as the true explanation. .It may be that, under the authorities, he did not show the alleged fraud by sufficient evidence, but this is a very different matter from tendering back the money as a condition precedent to having the charge of fraud submitted to the jury on such evidence as there was.”
In this State a similar proposition has received some attention in O’Neil v. Iron Co., 63 Mich. 690 (30 N. W. 688); Henderson v. McRae, 148 Mich. 324 (111 N. W. 1057); Proctor v. Hobart M. Cable Co., 145 Mich. 503 (108 N. W. 992); and in other cases.
But there is no room for the application of the doctrine in the case at bar, because the evidence that plaintiff and defendant did reach an agreement' with respect to compensation for plaintiff’s injuries is very clear. He was injured, and did not work for 14 days. He was earning $5 a day. He lost, in this way, $70. He returned to work, supposing, as he says, that his injury was not continuing; at least, was not permanent. The claim agent of defendant saw him and inquired how he got hurt and said:
“ ‘The thing that hurt you the worst is the time you lost.’ I said, T did not know; the company had always treated me all right.’ And he said, ‘Well,’ he said, T am going to take this up to No. 1 plant and see that you get your wages for the time you were off.’ I said, ‘All right.’ He represented himself to be assistant claim agent of the Studebaker.”
Later on, on plaintiff’s application, the subject was resumed, and plaintiff was informed by the same agent:
“He said the company would not let him give me all the wages; it amounted to $70; he would give me $42.50 of it, so I took it.”
Trué, plaintiff testifies that he understood this was for lost wages, and that he was not told that it was for a release of all claims for his injury; that he did not read the paper — release—which he signed, and it was not read to him. But no fraud was practiced, and none is alleged, in procuring the written release. Plaintiff is intelligent and can read. The release is plainly printed, and its-terms are not doubtful. Moreover, as has been stated, plaintiff did not then suppose that his injury was serious. He had returned to work and was earning wages, and his apparent damages were his lost time. It is clear that plaintiff understood the effect of what he was doing, some evidence of which is found in the declaration. The trial court could not have permitted a finding opposed to this conclusion to stand.
The stipulation of counsel and the pro forma ruling of the trial court upon other points relied upon by appellee at the trial impose no duty upon this court to examine those points, beyond this, that if the reason given by the trial court for directing a verdict was a bad reason, and it appeared, nevertheless, that the ruling was a correct one, the judgment would be affirmed. The cause has been briefed and argued as if all of the grounds urged for a directed verdict were open to our consideration. It may therefore be said, with propriety, that we were impressed at the hearing, and an examination of the record has convinced us, that the defendant’s negligence was not made out, and that plaintiff’s injury was the result of his own want of care; the risk of the particular injury being voluntarily and intelligently assumed by him.
The judgment is affirmed.
Brooke, Stone, Bird, Moore, and Steebe, JJ., concurred with Ostrander, J. McAlvay, C. J., and Kuhn, J., concurred in the result. | [
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Ostrandee, J.
The bill is filed for specific performance of a contract for the sale of real estate. So far as the facts are concerned, the defense -is predicated upon the denial of defendant Annie E. Streeter that she ever signed the instrument relied upon by complainants or was a party thereto. The lease and option relied upon describes the premises as a strip 40 feet wide and 8 rods long. It is so described in the bill. The decree, which recites that the trial court finds that defendant Annie E. Streeter signed the lease and option understanding^ and with, the intention and purpose of uniting therein as one of the lessors and optioners, orders the defendants to execute and deliver to the complainants a sufficient conveyance of the premises described in the option and lease upon payment to them of the sum of $449.70, which is the amount of the purchase price less the amount allowed to complainants as costs. The defendants appeal, insisting that the defendant Annie E. Streeter never signed the instrument, asserting also that it and what was done in respect to it is insufficient in law:
(a) Because the undisputed testimony shows that they owned but 33 feet by 8 rods, and not 40 feet by 8 rods.
(5) Because the option and lease on its face purports to be made by Daniel W. Streeter alone.
(c) Because (and this is predicated upon the last-stated contention) the husband signed the lease in the forenoon and the wife in the afternoon, neither being present when the other executed the instrument, the contract appearing on its face to have been made by the husband alone and as his individual act; the wife could not join with him in a valid contract to sell the property by the simple act of signing her name thereto.
(d) Because the option was void under the statute of frauds because not accepted in writing.
I am satisfied, after reading the record and after an examination of the handwriting of the defendant Annie E. Streeter and of her alleged signature to the lease and option, that she signed the lease, and that the finding and conclusion of the trial court as to this fact must stand. The giving of the option was part of a single transaction agreed upon between the parties. The tender of the money within the time limited was sufficient to make the contract otherwise evidenced by the option mutual and binding upon both parties. I have no doubt that both defendants under took to do whatever was necessary to be done, and that complainants relied upon what defendants did as securing to them what they had bargained for. The serious question is whether the instrument relied upon as giving an option is, for that purpose, legally effective.' Assuming the bargain to have been that defendants were to convey to complainants certain property and give them a lease for five years of the strip of land in question and an option that the vendees might buy the strip at any time during the five years for $500, for which the complainants paid $4,000, the necessary legal evidence of the bargain must have been contemplated. A properly drawn and properly executed lease and option was a part of the necessary legal evidence of the bargain.
There are many decisions to be found which sustain the proposition that the estate of one who signs, seals, and acknowledges a deed, but is not described therein as grantor with apt words to indicate the estate and interest intended to be conveyed, does not pass by the deed, and it has been many times held that a joint deed executed by husband and wife, which omits the name of either as grantor, is inoperative as a conveyance of the interest of the one whose name is omitted. A considerable collection of cases has been made by counsel, and such a collection is to be found in a note to Sterling v. Park, 129 Ga. 309 (58 S. E. 828, 13 L. R. A. [N. S.] 298, 121 Am. St. Rep. 224), as reported in 12 Am. & Eng. Ann. Gas. 201, 203. See, also, 13 Cyc. p. 538; 21 Cyc. p. 1203. No analysis of these cases is attempted, although it may be remarked that a considerable number of them are based upon some statute requirement as to the form of the conveyance, others follow the early decision in Catlin v. Ware, 9 Mass. 218 (6 Am. Dec. 56). In that case a wife signed and sealed a deed in which she joined with her husband for the purpose evidently of releasing or barring her dower; she having no other interest. She was not otherwise mentioned in the deed. The conclusion that the deed was ineffectual to bar dower was rested upon the ground that a deed cannot bind a party signing and sealing it unless it contains words expressive of an intention to be bound.
The statute requisites of a deed in Michigan are that it be executed in the presence of two witnesses, who shall subscribe their names to the same as such. 3 Comp. Laws, §8962; 4 How. Stat. (2d Ed.) § 10824. But as between the parties deeds not witnessed are good. Fulton v. Priddy, 123 Mich. 298 (82 N. W. 65, 81 Am. St. Rep. 201); Carpenter v. Carpenter, 126 Mich. 217 (85 N. W. 576). As to lands owned by the husband, the wife joins in his deed for the purpose of releasing dower, and if the homestead is conveyed she is a necessary party to the deed because she has a peculiar interest in the premises by reason of the family relation and must join with her husband in conveying it. In practice it is usual, in every case where a married man conveys real estate, to name his wife in the body of the deed, in which, usually, she appears to have joined in making all of the covenants of the deed. Whether the purpose is to release the homestead interest, or to bar dower, the form of the deed is, usually the same. The Constitution (article 14, § 2) provides that the alienation of the homestead by the owner, if a married man, shall not be valid “without the signature of the wife to the same.” A married woman may bar her dower in any estate conveyed by her husband by joining in the deed of conveyance and acknowledging the same. 3 Comp. Laws, § 8930, 4 How. Stat. (2d Ed.) § 10922; Maynard v. Davis, 127 Mich. 571 (86 N. W. 1051). It would not be entirely safe, however, to conclude that the signature and acknowledgment by the wife to a deed in which she joined with her husband as grantor in conveying land owned by him amounted to no more than barring her dower. Where a wife joined with her husband in a warranty deed of his land and the sole consideration was paid to her, she was held jointly liable with her husband for a breach of the covenant against incumbrances. Arthur v. Caverly, 98 Mich. 82 (56 N. W. 1102). Decision was put upon the ground that she was contracting with respect to property to be held and owned as her separate estate. A married woman who held a recorded mortgage upon her husband’s land, which they occupied as a homestead, joined with him in a second mortgage upon the land. In a foreclosure of the second mortgage, it was claimed that in joining with her husband in giving the mortgage the wife had subjected her own mortgage interest to the lien of the junior mortgage. It was held that the execution by the wife of her husband’s deed of any sort implies that she executes it for the' purposes for which the statute requires such execution in order to make the husband’s deed effective; that if the intention is to affect any'independent interest of her own it is reasonable to expect some special provision in the instrument showing specifically in- what manner and how far her separate interests are intended to be affected. Kitehell v. Mudgett, 37 Mich. 81. A wife joined with her husband in giving a warranty deed of land in which he had a life estate, and the wife had a contingent interest as heir of her husband, created by the will of the husband’s ancestor, by which the life estate was also created. It was said:
“In Arthur v. Caverly, 98 Mich. 82 [56 N. W. 1102], it was held that a married woman uniting with her husband in a warranty deed of his property is liable on the covenant when she obtains all the consideration, which, in that case, was a conveyance to her of other property. The record in the instant case does not disclose for what purpose the wife signed the deed, as she had no dower interest; the husband’s interest being simply' a life estate. The burden was upon the complainant to show for what purpose she joined in the instrument, and to prove it clearly, and to show that she had brought herself within the rule above set forth. Mutual Benefit Life Ins. Co. v. Savings Bank, 68 Mich. 116 [35 N. W. 853]. This complainant has failed to do, and it necessarily follows that the wife’s signature to the instrument was a nullity, and did not bind her subsequently acquired estate.” Menard v. Campbell, 180 Mich. 592 (147 N. W. 556).
From these cases I deduce the following rulés:
(1) Usually, when a wife joins in the deed of her husband of his property, the covenants in the deed being in form the joint covenants of both of them, the covenants are not hers but are his only.
(2) If, however, it is made to appear that the sole consideration for the deed was received by her and was by her husband so intended, the covenants will be treated as the joint covenants of husband and wife. The fact may be shown by evidence aliunde the deed.
(3) While a wife may convey her separate interest in land as though she were unmarried, if the deed she executes, with her husband, is a proper and suitable instrument for the release of her dower or for consenting to the alienation of the homestead — such an one as she would be expected to execute if she had no independent interest — no purpose to affect her independent interest can be implied.
It is perceived that as affecting the wife the declarations in the body of the instrument are usually of no significance. The significant thing is that she joins her husband in executing the deed.
Neither the husband nor the wife can alone alien an estate held by them by the entireties. A deed or mortgage of such an estate executed by either, alone, is a nullity, before and after the death of the non- consenting spouse. Naylor v. Minock, 96 Mich. 182 (55 N. W. 664, 35 Am. St. Rep. 595). At least, if the conveyance is to a third party. Wilkinson v. Kneeland, 125 Mich. 261, 264 (84 N. W. 142). A wife has no dower interest in such an estate, or in such interest as. her husband has therein. To convey such an estate, one of them joins in the deed for the same reason that the other joins in it, and to accomplish the same purpose, namely, to alien the estate. Nothing can be accomplished except by joint action, and therefore they act jointly.
Defendants stand in the position of joint grantors, who must act jointly or not at all if the estate or any interest in it is to be aliened. In the instrument relied upon as conveying an interest therein one is named as grantor; the other is not named. Both have signed it, and both signatures are witnessed by two witnesses. Following the reasoning of our own decisions, to some of which I have referred, the implication is, and it is the only reasonable one, that the wife, one of the joint owners, signed the deed in order to make the instrument effective. We are permitted to adopt, and I think should adopt, the rule that in such a case the failure to name the wife as grantor in the body of the deed or other instrument of conveyance is not fatal. I quote and approve the language and conclusion of the Georgia supreme court in Sterling v. Park, supra. After referring to a large number of authorities, it is said (page 312 of 129 Ga. [58 S. E. 829, 13 L. R. A. (N. S.) 303, 121 Am. St. Rep. 226, 12 Am. & Eng. Ann. Cas. 202]):
“Most of these decisions were based upon the ground that a wife could not relinquish her right of dower unless the conveyance contained apt words expressive of such intent. But the weakness of the reasoning, in our judgment, is the clinging to an ancient rule of the common law which grew out of the en vironment and civilization of the sixteenth century, when such conditions do not exist in our own civilization. As was very pertinently said by Woodbury, J., in Elliot v. Sleeper, 2 N. H. 525, decided as early as 1823:
“ ‘Here, however, a deed must by statute be attested; and since seals have ceased to be distinguished by peculiar devices, and education has become more generally diffused, signing would seem to be proper and indispensable. When a deed is signed, the utility of naming the grantor in the premises or any part of the body of the instrument appears in a great measure superseded; for “know,” says Perkins, § 36, “that the name of the grantor is not put in the deed to any other intent but to make certainty by the grantor.” Bacon’s Ab. “Grant” C. This certainty is attained whenever a person signs, seals, acknowledges, and delivers an instrument as his deed, though no mention whatever be made of him in the body of it; because he can perform these acts for no other possible purpose than to make the deed his own. In a deed poll, like that under consideration, where only the grantor speaks or signs or covenants, there is still less danger of mistake and uncertainty concerning the party bound, than in deeds indented.’
“In agreement with the New Hampshire case are Armstrong v. Stovall, 26 Miss. 275; Ingoldsby v. Juan, 12 Cal. 564; Hrouska v. Janke, 66 Wis. 252 (28 N. W. 166). Text-writers now very generally discard as unsound the proposition that the grantor should be named as such in the deed, and approve those cases , which hold that the conveyance is operative when signed by the grantor, though his name be omitted from the body of the instrument. 3 Washburn on Real Prop. 2120; 1 Devlin on Deeds, § 204.
“The requisites of a deed under the Code are that it must be in writing, signed by the maker, attested by at least two witnesses, and delivered to the purchaser or some one for him, and be made on a valuable or good consideration. No prescribed form is essential to the validity of a deed, and the instrument will be deemed sufficient if it make known the transaction. Civil Code, §§ 3599, 3602. We think that the deed under discussion measures up to these statutory essentials and is effective as a conveyance of the de fendant and her coremainderman, though their names are not mentioned in the body of the instrument. See, in this connection, Ball v. Wallace, 32 Ga. 170.”
See, also, Sloss-Sheffield Steel, etc., Co. v. Lollar, 170 Ala. 239 (54 South. 272); Barrett v. Cox, 112 Mich. 220 (70 N. W. 446).
It is probable that if the weight of authority depends upon the number of decisions, old and new, my conclusion is opposed to the weight of authority. See Cordano v. Wright, 159 Cal. 610 (115 Pac. 227, Ann. Cas. 1912C, 1044), and cases cited in opinion. I conclude that the instrument creating the option was not, for that purpose, invalid.
It is singular that there should be a dispute, at least a failure to agree, about the width of the strip defendants own. Record evidence of title does not appear to have been produced by either party. Complainants can gain no title, through a deed from defendants, to land defendants do not own. The bill is framed according to no theory of an abatement of the purchase price to correspond with the quantity of land defendants own. The evidence upon the subject, aside from the oral statements of defendants, or one of them, is found in the lease and option in which defendants assert title to 40 feet. If the defendants own but 33 feet, there ought not to be two suits to adjust differences which should be settled in one. However, as the record stands, there appears to be no warrant for modifying the decree.
It is therefore affirmed, with costs to appellees.
McAlvay, C. J., and Brooke, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred. | [
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Brooke, J.
The bill of complaint in this cause was filed to procure an annulment of marriage. The record discloses the following pertinent facts: The defendant in this proceeding on July 14, 1911, at that time being married to one Dibler, filed a bill for divorce in the Allegan circuit court. The defendant in that cause was brought in by publication, and after a full hearing upon the merits, a decree was granted to complainant (defendant herein) on December 5, 1911. Some time prior to the filing of said bill, complainant herein became acquainted with defendant and interested himself in and about the procuring of said decree of divorce. His purpose in so doing becomes apparent from the fact that shortly after the granting of said decree he became engaged to defendant and married her on April 9, 1912. The parties lived and cohabited together from that date to April 2, 1913, at which time defendant herein filed a bill for divorce against complainant in the county of Washtenaw. To this bill of complaint defendant filed an answer May 15, 1913, a material portion of which follows:
“The defendant, further answering said bill of complaint, denies each and every allegation as therein contained that has not already been answered or denied, and expressly charges the truth to be that said complainant perpetrated a fraud upon this defendant when she told this defendant that she had procured a legal divorce from her former husband, J. C. Dibler, of South Bend, Ind.; that this defendant believed the statements made by the said complainant concerning said matter, or he would not have entered into marriage relations with her; that he did so in good faith, believing that she was legally divorced, and did not know the contrary until he was so informed by his solicitor; and that since he was so informed, he has not lived or cohabited with said complainant,
“This defendant further alleges that after he was so informed by his said solicitor that he had made investigations, he learned that said complainant and her former husband were living in the city of South Bend, Ind., when they were separated; that the last time they separated was on the 10th day of April, A. D. 1910; that after the separation the said complainant lived for a short time with her mother at Quincy, Mich.; that later on she went to Mishawaka, Ind., where she engaged in the millinery business, and continued in such business from July 21, 1911, to March 12, 1912; that after leaving Mishawaka she clerked in a store at Hammond, Ind., and that she never had a legal residence in the State of Michigan, notwithstanding the fact that said complainant alleged in her bill of complaint against her former husband that for a period of one year and upwards immediately preceding the time of exhibiting her bill of complaint, she was an actual resident of the State of Michigan, and that she- still resided in, and was an inhabitant of the State of Michigan.
“This defendant further alleges that by reason of the false statements made in the bill of complaint filed by said complainant to obtain a decree of divorce from her former husband, she perpetrated a fraud upon the court, and procured a decree; that said decree is absolutely void, and that by reason thereof, she perpetrated a fraud upon this defendant, and has greatly wronged this defendant, and is not, nor has never been, the legal wife of this defendant.
“This defendant therefore prays that _ (a) said marriage entered into by the said complainant and himself may be declared null and void.”
On said last-mentioned date an order was made in the Washtenaw circuit court, requiring complainant herein to pay certain alimony and solicitor’s fees. This order he complied with until August 15, 1913, when he filed in the Van Buren circuit court his bill of complaint in the instant case. While this bill sets out with more particularity the alleged facts upon which he relies to bring about an annulment of his marriage than does his answer filed in the Washtenaw circuit court, they are, in essence, the same. On September 9, 1913, a motion was made in this cause, by defendant, praying for the dissolution of the preliminary injunction theretofore granted and the dismissal of the bill of complaint. The principal ground for said relief was that the same issues between the same parties were then pending in the circuit court for the county of Washtenaw, which court had jurisdiction of both parties. This motion was denied, and a full hearing had in the Van Burén circuit court upon the merits of the case. By the decree of that court, from which complainant appeals, his bill was dismissed. The court was of the opinion that the Allegan circuit court did not have jurisdiction to render the decree of divorce between defendant and her former husband, Dibler, for the reason that defendant had not resided in the State of Michigan a suificient length of time to confer jurisdiction. The court, however, found that complainant was active in the matter of securing said decree, that no fraud was perpetrated upon him, and that he should be held, by his conduct, to be estopped. The question involved upon this appeal is whether the bill was properly dismissed.
In the case of Robson v. Robson, 161 Mich. 293 (126 N. W. 216), this court refused to remand a proceeding to the circuit court for the purpose of permitting defendant to interpose the defense that the complainant was not his wife, because her divorce from a former husband.had been illegally granted. It was said of the defendant in that case:
“That he has been guilty of such laches as to render it inequitable for this court to exercise its discretion in favor of permitting him to take advantage of this defense. * * * Even if the statute should be held to be mandatory and the taking of the testimony and entry of the decree prior to the lapse of four months should be held to avoid the decree, the court ought not to facilitate the making of such an inequitable defense.”
In Harrison v. Harrison, 94 Mich. 559 (54 N. W. 275, 34 Am. St. Rep. 364), it was held proper for the defendant in a divorce proceeding to set up, by way of cross-bill, fraud on the part of complainant which would be sufficient to warrant a decree of annulment.
The gist of complainant’s bill in the case at bar, and of his answer filed in the Washtenaw county proceeding, is that he was induced to enter into the marriage relationship with defendant because he believed her fraudulent representation to the effect that the divorce between herself and Dibler was valid. Under the authority of Harrison v. Harrison, he had the right, by appropriate pleading, to raise this question in that court.
He did, in fact, raise it in his answer, and asked a decree of annulment upon the ground stated. It appears, however, that the answer was not verified as a cross-bill. This defect would have been remedied upon application. See Harrison v. Harrison, supra.
The issues in that case being such as they were, we are of opinion that complainant had no right to go to another county (Van Buren) and file an independent bill for the annulment of his marriage. At an early stage of the proceedings the court’s attention was called to the fact of the pendency of the identical question in the Washtenaw circuit court, where the court was possessed of full jurisdiction. The motion made at that time to dismiss complainant’s bill should have been granted, and complainant should have been remitted to his remedy in the Washtenaw circuit court, where he had first raised the issue. This view disposes of the matter in issue upon the question of jurisdictional grounds only.
The decree dismissing complainant’s bill is affirmed.
McAlvay, C. J., and Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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Bird, J.
The plaintiff recovered a judgment in the Kent circuit court, for personal injuries which he claims to have incurred in consequence of a defective highway in defendant township. It appears from the record that the plaintiff was the owner of two farms in Byron township. In the highway lying between them was a long, steep hill, known as Whitcomb Hill. Toward evening on the 15th day of April, 1910, plaintiff hitched his horses to a lumber wagon and started for his other farm a mile and a half away, to get several swarms of bees. His daughter and four young people accompanied him. The going part of the trip was made up the hill without incident. Late in the evening, he started home with the bees, and every thing went well with him until he had gone about two-thirds of the way down the hill, when his nigh horse jumped sideways and crowded the “off” horse into the ditch, and then both started in a southwesterly course and continued for 53 feet until the wagon was stopped by an obstruction. The young people jumped out, but the plaintiff was thrown out and injured.
The negligence alleged was the failure of the township to erect barriers. The defendant contends that the trial court should have directed a verdict in its behalf, on the ground that it was obvious that the highway was in a reasonably safe condition without barriers, and also on the further ground that the proximate cause of the injury was the shying of the colt and not a lack of barriers.
The plaintiff was unable to give much of an account of how the accident occurred. He said:
“I drove very carefully until I got to the Whitcomb Hill and proceeding down that to turn around that washout, why, I supposed I was right, all right, and all to once one of the horses went down someway and the other one after him, and that is the last I could remember of that, and I went with them, and I brung up within 15 feet of the bottom of the hill.”
Plaintiff’s daughter, however, was able to give a very clear description of what took place. She testified that the three-year old colt was on the “nigh” side and the four-year old on the “off” side. She further testified:
“Q. When you got down to a point where you left the highway, the colt over here became frightened at something and started the other horse right off the other way, didn’t he?
“A. I don’t think he was frightened at anything; he just simply, as a colt, jumped sideways. I didn’t see anything for him to get frightened at; I don’t think he was frightened.
“Q. Then we will leave out whether he was fright ened. He jumped sideways, and that steered the team right off in a southwesterly course, didn’t it?
“A. Yes, sir.
“Q. They turned abruptly, when this colt on the left-hand side jumped in toward the other horse, didn’t he?
“A. Yes, sir.
“Q. And that turned the team right around so they went right straight down the incline in a southwesterly direction?
“A. Not just at that moment, it didn’t.
“Q. They didn’t stop, did they?
“A. The other horse tried to keep his footing on the road, and he couldn’t.
“Q. What is the reason he couldn’t?
“A. Because there was a little bank there.
“Q. You mean that little ditch that ran along down the side of the beaten track?
“A. Yes, sir. * * *
“Q. What did he do when he got to that little ditch?
“A. He was shoved in there by the other horse, at least kind of crowded.
“Q. Crowded in there by the other horse?
“A. Yes.
“Q. And then they took a southwesterly course right down through the brush there, didn’t they?
“A. Why, that one horse tried to keep his footing and he couldn’t, and he went down that little bank, and he just simply lost his balance and he went right down the hill. * * *
“Q. And before they abruptly turned out of the highway they were right in the beaten track?
“A. As far as I can remember they were.
“Q. You couldn’t see any other reason for that colt crowding the other horse down off that incline, through that little ditch and down the incline, unless he did get scared, could you?
“A. Yes, sir.
“Q. What .is that? Because he was a colt?
“A. Yes, sir.
“Q. I see. It was because he was a colt, and colts are liable to do those things?
“A. Yes, sir.
“Q. This horse on the right-hand side, the off horse, he tried to hold the colt in the road, didn’t he?
“A. Yes, sir.
“Q. And he couldn’t do it, could he?
“A. No, sir.”
The point at which plaintiff’s team left the highway was 210 feet from the bottom of the hill. The roadbed at that point was 14 feet wide and directly west therefrom, for 30 feet, there was a fall of only about 2 feet. That stretch of ground was separated from the traveled part of the highway by a ditch, not to exceed a foot in depth. By turning abruptly as the team did, one could have driven to the west for 30 feet without encountering any serious danger. The idea of barriers is usually suggested to .the highway authorities where there are dangerous places just outside the traveled part of the highway. No such danger existed here. The team made its exit from the highway at about the point where the “cut” left off and the “fill” began, and had his team been under control he ought to have stopped them within the 30 feet. But whether he could or not, we think it can be said as a matter of law that where the wrought portion of the highway is 14 feet wide, and where one can drive with reasonable safety for 30 feet at right angles therefrom before reaching a place of danger, the highway is reasonably safe and fit for public travel without the protection of barriers. Usually in these cases the question is one for the jury to determine whether barriers should have been provided, but in this case there is no contention over the material facts, and they are such that we can say as a matter of law that no such obvious danger existed at the place in question as to require the erection of barriers. See Kingsley v. Township of Blooming dale, 109 Mich. 340 (67 N. W. 333).
The testimony of plaintiff’s daughter, which is the only clear account of how the accident happened, convinces us that the playful actions of the colt in crowd ing its mate off from the traveled way was the proximate cause of plaintiff’s injury, and not the lack of barriers. If barriers had been erected at that point and the colt had crowded his mate in like manner, and then both had started directly down the hill at the same rate which they went off at an angle, the results probably would have been quite as disastrous. But it is argued that the colt simply shied and there was not a loss of control; but, if there were a loss of control, it was only temporary. We think that the testimony establishes the fact that the actions of the colt were something more than shying, and that there was something more than a temporary loss of control upon the part of plaintiff, as the combined effort of plaintiff and the colt’s mate was unable to prevent the colt from leaving the traveled part of the way and going a distance of 53 feet before being brought to a stop by the wagon falling into a depression. The proximate cause of plaintiff’s injuries was clearly the shying of the colt, and, as the township was in no wise responsible for the shying, no recovery should have been permitted. Beall v. Township of Athens, 81 Mich. 536 (45 N. W. 1014); Kingsley v. Township of Bloomingdale, 109 Mich. 340 (67 N. W. 333); Doak v. Township of Saginaw, 119 Mich. 680 (78 N. W. 883); Bell v. Village of Wayne, 123 Mich. 386 (82 N. W. 215, 48 L. R. A. 644, 81 Am. St. Rep. 204).
Whether the conduct of the colt was induced by a spirit of playfulness or wilfulness is of no importance, as the township would not be responsible for its conduct in either event, and, indeed, there appears to be no claim that the township was responsible for his conduct. Something has been said in the briefs concerning a washout that was located further up the hill. The proofs show that the plaintiff was aware of the washout; that' there was a well-beaten track around it; and that he did drive around it in safety, and the point where the team left the traveled part of the way was 30 feet south of the washout. There is no claim in the declaration that it caused the shying of the colt.
We are of the opinion that the trial court was in error in refusing to direct a verdict for defendant, as either ground would have furnished a basis for so doing.
The judgment will be reversed, and no new trial granted.
McAlvay, C. J., and Brooke, Kuhn, Stone, Moore, and Steere, JJ., concurred with Bird, J. | [
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Brooke, J.
Respondent stands convicted of a violation of the provisions of Act No. 301 of the Public Acts of 1913, relating to the licensing, bonding, and regulation of private employment agencies. The act provides:
“Section 1. No person, firm or corporation in this State shall open, operate or maintain a private employment agency where a fee is charged to persons seeking employment, without first obtaining a license for the same from the commissioner of labor, and the fee for such license shall be $25.00 per annum except in cities over 200,000 population, where it shall be $100.00 per annum. Every license shall be void after the thirty-first day of December of the year in which it was issued. The form of the license shall be fixed by the commissioner of labor and it shall be nontransferable. The license may be revoked by the commissioner of labor whenever, in his judgment, after full hearing, the licensed agency shall have violated any of the provisions of this act. The commissioner of labor is hereby charged with the enforcement of the terms of this act and empowered to make such rules or regulations as are consistent with it and aid in its enforcement and he shall direct copies or excerpts of this act to be kept conspicuously posted in every licensed agency. The commissioner of labor shall turn into the State treasury all fees collected under this act.”
Section 2 provides for a surety bond in the penal sum of $1,000. Section 8 requires the employment agency to keep certain records. Section 4 requires such agency to give receipts for fees paid. Section 5 provides for a limitation upon such fees and for their repayment under certain contingencies. Sections 6 and 7 prohibit certain practices. Section 8 provides for a penalty, which may be either fine or imprisonment.
Respondent avers that said act is unconstitutional and void, for many reasons which we find it unnecessary to enumerate at large in this opinion. It may be said, generally, that the claim of the respondent is:
(1) That the title of the act is insufficient.
(2) That the fee charged is a tax and as such lacks the equality or uniformity demanded by the Constitution.
(3) That it is unreasonable, oppressive, prohibitory, and not regulative.
(4) That it vests arbitrary, executive, legislative,- and judicial power in the State labor commissioner to say whether any man may engage in this lawful business.
(5) That it is discriminatory class legislation.
Other reasons are urged, which we believe may fairly be considered as covered by those above set forth.
With reference to the first contention, we think it is sufficient to say that in our opinion the title is sufficient and does not offend section 21 of article 5 of the Constitution.
The other reasons urged for holding the act unconstitutional, with the exception of No. 4, may be treated together.
The “police power” is said to be a power or organization of a system of regulations tending to the health, order, convenience, and comfort of the people and to the prevention and punishment of injuries and offenses to the public. It is the expression of an instinct of self-preservation and characteristic of every living creature, an inherent faculty and function of life, attributed to all self-governing bodies as indispensable to their healthy existence and to the public welfare. It embraces all rules and regulations for the protection of life and the security of property. 28 Cyc. p. 692; 31 Cyc. p. 902. It has for its object the improvement of social and economic conditions affecting the community at large and collectively with a view to bring about “the greatest good of the greatest number.” Courts have consistently and wisely declined to set any fixed limitations upon subjects calling for the exercise of this power. It is elastic and is exercised from time to time as varying social conditions demand correction.
This court has had frequent occasion to examine legislative enactments whose validity rests upon a proper exercise of this power. Among these are the following: With respect to meat dealers, Ash v. People, 11 Mich. 347 (83 Am. Dec. 740). Regulating the manufacture and sale of bread, People v. Wagner, 86 Mich. 594 (49 N. W. 609, 13 L. R. A. 286, 24 Am. St. Rep. 141). Regulating pawnbrokers, City of Grand Rapids v. Brandy, 105 Mich. 670 (64 N. W. 29, 32 L. R. A. 116, 55 Am. St. Rep. 472). Hawkers and peddlers, City of Muskegon v. Zeeryp, 134 Mich. 181 (96 N. W. 502). Regulating the sale of goods in bulk, Musselman Grocer Co. v. Kidd, Dater & Price Co., 151 Mich. 478 (115 N. W. 409 [affirmed in 217 U. S. 461 (30 Sup. Ct. 606)].
It is the contention of counsel for respondent that respondent is engaged in a lawful and useful occupation, and that in consequence thereof the legislature was without power to regulate said business as it attempted to do by means of the act in question. In support of this position, the case of People, ex rel. Valentine, v. Berrien Circuit Judge, 124 Mich. 664 (83 N. W. 594, 50 L. R. A. 493, 83 Am. St. Rep. 352), is cited. It is there said:
“The legislature of this State is not empowered by the Constitution to regulate contracts between its citizens who are engaged in legitimate commercial business, or to require any class of persons to pay a fee for the right to carry on business, or to give a bond to perform their contracts which other parties may choose to make with them. The Constitution guarantees to citizens the right to engage in lawful business, unhampered by legislative restrictions, where no restrictions are required for the protection of the public.”
There can be no doubt of the soundness of the principles enunciated in the foregoing quotation. The point in issue is whether the business carried on by the respondent is one which may properly be regulated by the legislature through the exercise of the police power, in the interests of the public.
This question was considered by the Supreme Court of the United States in the case of Williams v. Fears, 179 U. S. 270 (21 Sup. Ct. 128). Mr. Chief Justice Fullee, writing the opinion for the court there, says:
“It would seem, moreover, that the business itself is of such nature and importance as to justify the exercise of the police power in its regulation. We are not dealing with single instances, but with a general business, and it is easy to see that if that business is not subject to regulation, the citizen may be exposed to misfortunes from which he might otherwise be legitimately protected. Nor does it appear to us that the objection of unlawful discrimination is tenable.”
In the case of Price v. People, 193 Ill. 114 (61 N. E. 844, 55 L. R. A. 588, 86 Am. St. Rep. 306), the court had under consideration section 10 of an act of the general assembly entitled in part “for the regulating of private employment agencies.” (Hurd’s Rev. Stat. 1899, chap. 48, § 62.) This act provided for a license fee of $200, and the execution of a bond in the penal sum of $1,000. That court determined that the act contravened neither the State nor the Federal Constitution. It is there said:
“It is an attribute of sovereign power to enact laws for the exercise of such restraint and control over the citizen and his occupation as may be necessary to promote the health, safety, and welfare of society. This power is known as the police power. * * *
“That the public welfare demands legislation prescribing regulations and restrictions to'protect against the evils of imposition and extortion which have manifested themselves in the conduct of private employment agencies is not controverted by counsel for plaintiff in error.”
In that case, as in the case at bar, it was contended that the license fee of $200 was an oppressive arbitrary exaction. While affirming the right of the court to pass upon the reasonableness of the license fee exacted, it was held that, where the fee was imposed by an act of the general assembly, the court should proceed with great hesitation and caution in passing upon the validity of the enactment.
The same law, in its entirety, was considered by the Illinois supreme, court in the case of Mathews v. People, 202 Ill. 389 (67 N. E. 28, 63 L. R. A. 73, 95 Am. St. Rep. 241). The court there held the entire act to be unconstitutional, but upon grounds not affecting the question at issue in the instant case.
Counsel for respondent cite and rely upon the case of State v. Moore, 113 N. C. 697 (18 S. E. 342, 22 L. R. A. 472). The question was again before the supreme court of that State in the case of State v. Hunt, 129 N. C. 686 (40 S. E. 216, 85 Am. St. Rep. 758), where the holding in the earlier case was distinctly overruled.
In the case of Moore v. City of Minneapolis, 43 Minn. 418 (45 N. W. 719), a municipal ordinance enacted in pursuance of legislative authority, which required a license fee in the sum of $150, was considered and upheld. In a later case (Moore v. City of St. Paul, 48 Minn. 331 [51 N. W. 219]), a license fee of $150 was held invalid upon the ground that it was not apportionable; that is, the applicant, according to the terms of the regulation, was obliged to pay $150 without regard to the time of year at which the application was made, all licenses expiring on the 1st of January.
The infirmity of this provision, if it be conceded to be such, is not found in the act now under consideration. The provision of section 1 is that:
“The fee for such license shall be $25.00 per annum, except in cities over 200,000 population, where it shall be $100.00 per annum.”
Under this provision we think it clear that the commissioner has authority to pro rate the fee according to the period covered by the license.
It was contended in the case of People, ex rel. Armstrong, v. Warden of City Prison, 183 N. Y. 223 (76 N. E. 11, 2 L. R. A. [N. S.] 859, 5 Am. & Eng. Ann. Cas. 325), that an ordinance requiring the payment of a license fee of $25 was unconstitutional, as being in conflict with both the State and Federal Constitutions. The court sustained a conviction under said ordinance on the ground that the character of the business was such as to warrant proper regulation in the exercise of the police power.
In the case of Ex Parte Dickey, 144 Cal. 234 (77 Pac. 924; 66 L. R. A. 928, 103 Am. St. Rep. 82, 1 Am. & Eng. Ann. Cas. 428), the supreme court of that State had under consideration a law limiting the compensation to be received by employment agents, which limitation was practically the same as that provided for in section 5 of the act under consideration. It was there held that the regulation was unwarranted and that the business was “not only innocent and innocuous, but highly beneficial, as tending the more quickly to secure labor for the unemployed.”
A like result was reached in the case of City of Spokane v. Macho, 51 Wash. 322 (98 Pac. 755, 21 L. R. A. [N. S.] 263), the decision going upon the ground that the regulation was not general and impartial in its operation, but preyed upon one class to the exclusion of others in respect to a penal act common to all classes of business, and exceeded the reasonable limit of police regulation. See, also, Shepperd v. County Commissioners of Sumpter, 59 Ga. 535 (27 Am. Rep. 394); State v. Napier, 63 S. C. 60 (41 S. E. 13).
From a careful consideration of all the authorities, we have reached the conclusion that the business is one properly subject to police regulation and control. The character of those with whom the business is likely to be conducted, in point of capacity for self-protection from fraudulent practices, is such that the legislature might very properly determine that a license system should be adopted, to the end that dishonest and disreputable persons might, in a measure, be excluded from a right to engage in the business and means afforded for the detection of fráud and the redress of wrongs. It seems clear that the character of the business is such as to facilitate the practice of fraud upon the ignorant and credulous. •
Nor are we prepared to say that the license fee imposed is excessive. The record contains no evidence tending to show the cost of inspection or enforcement of the terms of the act. Under the circumstances, we are disposed to the view that the sum charged for the license is within the legislative discretion.
The contention of the respondent that the act in question violates article 5, § 30, of the State Constitution, in that under the guise of a general act it is really local legislation, is, in our opinion, untenable. It is true that it provides for a license fee of $100 in cities containing over 200,000 population, and but $25 in other cities, and it is likewise true that at the present time there is but one city in the State of Michigan which has a population of more than 200,000. This fact, however, is not necessarily controlling. The act operates upon all citizens alike, except that a larger sum is charged for the license in larger cities than in smaller ones. Wherever the fee for the license is charged primarily for the purpose of regulation and not for the purpose of revenue, a variable sum may be fixed to meet the varying conditions under which the licensee operates. 25 Cyc. p. 608, and cases cited in note 74. It may well be that the legislature appreciated the fact that inspection for the purpose of proper regulation in large cities would be much more expensive than such inspection in smaller cities, and that the larger sum was fixed for the purpose of meeting such added expense of administration.
4. There remains for consideration only the question whether the act confers upon the commissioner of labor arbitrary powers judicial in their character.
The legislature frequently delegates to boards or commissions the right and power to determine certain facts upon which action is based, and this power has frequently been challenged in our own and other courts. It was considered in this State in the case of Feek v. Township Board of Bloomingdale, 82 Mich. 393 (47 N. W. 37, 10 L. R. A. 69), where it was determined that the local option law was valid against the objection that it conferred judicial power upon the board of supervisors. And again in the case of Sherlock v. Stuart, 96 Mich. 193 (55 N. W. 845, 21 L. R. A. 580), where the power to determine the question as to whether an applicant was a suitable party to have a license to conduct a saloon was delegated.
The exact point was determined contrary to the contention of respondent in the case of Kennedy v. State Board of Registration, 145 Mich. 241 (108 N. W. 730, 9 Am. & Eng. Ann. Cas. 125). The act there under consideration conferred upon the State board of registration the right to—
“Revoke the certificate of registration, after due notice and hearing of any registered practitioner who inserts any advertisement in' any newspaper, pamphlet, circular, or other written or printed paper, relative to venereal diseases or other matter of any obscene or offensive nature derogatory to good morals.”
It was there urged that the authority delegated was judicial in character, and therefore unconstitutional. In an exhaustive opinion, supported by many authorities, this court denied the contention, and held that the power delegated is not judicial in character and that—
“If, through nonobservance of the statute, complainant or any other physician is deprived of a constitutional right, there is nothing therein which prevents his obtaining adequate redress in a court.”
It is to be presumed that public officials will perform their duty without prejudice or dishonesty* Their failure to act within the limits of their delegated authority may be reviewed in a proper forum.
In the late case of Michigan Central R. Co. v. Railroad Commission, 160 Mich. 355 (125 N. W. 549), the legislation was attacked upon the ground that legisla tive power was conferred upon the commission. We there said, speaking through Mr. Justice Stone, at page 362 of 160 Mich. (125 N. W. 551):
“It is held that the functions and duties of such commissions are administrative or ministerial, and neither legislative, executive, nor judicial.”
Upon this question, see, also, Union Bridge Co. v. United States, 204 U. S. 364 (27 Sup. Ct. 367); Hubbell v. Higgins, 148 Iowa, 36 (126 N. W. 914, Ann. Cas. 1912B, 822); State v. Railway Co., 76 Kan. 467 (92 Pac. 606); Oregon, etc., Navigation Co. v. Campbell (C. C.), 173 Fed. 957; and Railroad Commission Cases, 116 U. S. 307 (6 Sup. Ct. 334, 388, 1191).
We are of opinion that the act in question is a valid exercise of the police power of the State, and that the judgment must be affirmed.
McAlvay, C. J., and Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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Steere, J.
This action was brought to recover damages for personal injuries alleged to have been caused by the negligence of defendants’ employee in running down plaintiff with an automobile on Joseph Campau avenue in the city of Detroit, on November 30, 1912. The accident occurred just south of where Joseph Campau avenue is crossed by Smith avenue. Joseph Campau runs north and south, is 35 feet wide, and has a double track street car line extending along it, the clear space for vehicles on either side of said tracks being about 10 feet. On the occasion in question an employee of defendants named William Wasmund was driving for them an automobile used in connection with their business, called a “pick-up” car, of 22-horse power and estimated to weigh “not over 2,500 pounds,” going south on Joseph Campau avenue. Following behind him at a distance of'about 50 feet was another pick-up car belonging to the Kelsey Wheel Company, driven by one of its employees. They were on the west, and to them the right, side of the avenue.- On the east side two horse-drawn wagons were moving north, the one in front being loaded with lumber and the one in the rear being a Standard Oil wagon. When the conditions arose which resulted in this accident the automobiles from the north and the wagons from the south were approaching and about to pass each other on opposite sides of the avenue they were traversing, near its intersection with Smith avenue.
Plaintiff, a Polish boy between eight and nine years of age, was riding on the rear end of the load of lumber, having apparently climbed upon some projecting boards, out of sight of the driver and those approaching from the north. The lumber wagon and the oil wagon were about 25 feet apart, their horses going at a walk. When the heads of the horses drawing the lumber wagon were approximately 20 feet south of Smith avenue, their driver guided them diagonally to the left, beginning to turn west on that thoroughfare. Defendants’ auto car was at that time some 60 to 70 feet to the north, beyond and approaching Smith avenue. Observing that the lumber wagon was about to cross his course, Wasmund, defendants’ driver, swung his car to the east, crossing over the railway tracks diagonally to the left, or wrong, side of the street for a person driving in the direction he was taking, and then turned westerly to cut across at the rear of the lumber wagon and in front of the oil wagon, back to the right side of the street again. As the lumber wagon was turning onto Smith avenue and Wasmund was swinging his car towards its rear to recross behind it, plaintiff alighted and ran out towards the east curb, when the. lamp or spring on the right side of defendants’ automobile struck and seriously injured him. Wasmund testified that he was but 10 or 12 feet away when he first saw the boy come from behind the wagon; that he then for the first time applied his brakes and could have stopped shortly after striking him, but the driver of the oil wagon motioned him to go ahead. If this be true, he could have easily checked down or stopped in time to allow the lumber wagon to pass before him onto Smith avenue. The driver of the auto car following him testified that they were running at a speed of 12 to 15 miles per hour, and that defendants’ car did not go any slower or faster when it started to turn out. behind the wagon and that he heard no horn blown. The driver of the oil wagon, who had driven automobiles, testified that the car which struck the boy was going, according to his judgment, 15 miles an hour, when it swung out to go across the street.
At the conclusion of the testimony a verdict was directed for defendants on the ground that plaintiff had failed to make out either a prima facie case of defendants’ negligence or his own freedom from contributory negligence. Though the driver’s own testimony tends to negative his claim that he could not check or stop his car in time to allow the wagon to safely pass in front of him, which compelled turning the car and passing to the left, and there is some conflict of testimony as to the speed at which he was running when he started to swing in behind the wagon he was meeting, those questions were clearly issues of fact, and there was ample evidence for the jury to consider, much of it undisputed, tending to show that his car struck the boy while on the wrong side of the street and of the vehicle it was passing, in violation of the law of the road and a city ordinance, near a crossing, with other following and passing convey anees in close proximity, without giving warning of its approach to those who might not be able to see or would not anticipate its passing upon that side, and while swinging in behind the loaded wagon at the rear of which the boy was riding, running the car at such a speed that he could not. avoid any one who might come from behind the wagon, which he knew was just turning onto another street.
Irrespective of which side they pass and why, it is a settled rule of the road that:
“When two vehicles are passing it is the duty of each driver to look out for pedestrians suddenly appearing from behind the other vehicle.” Babbitt’s Law of Motor Vehicles, p. 286.
The undisputed evidence that defendants’ car was on the wrong side of the road, passing the vehicle it was meeting on the left, alone raises a presumption of negligence on the part of its driver, and when such negligence is shown to have had a causal relation to the injury inflicted upon the plaintiff, as is the case here, a prima facie case of actionable negligence is presented. Daniels v. Clegg, 28 Mich. 32; Tyler v. Nelson, 109 Mich. 37 (66 N. W. 671); Buxton v. Ainsworth, 138 Mich. 532 (101 N. W. 817, 5 Am. & Eng. Ann. Cas. 146); Bourne v. Whitman, 209 Mass. 155 (95 N. E. 404, 35 L. R. A. [N. S.] 701). If, as claimed by defendants, there were justifying circumstances tending to show it necessary for the driver to take the left side of the road, the question was of fact for the jury and not of law for the court. If facts were shown warranting the driver in passing to the left, it then became his duty to observe that degree of caution and proceed with care at such reduced speed as was commensurate with the unusual conditions.
“One who violates the flaw of the road’ by driving on the wrong side assumes the risk of such an experiment and is required to use greater care than if he had kept on the right side, * * * and if a col lision takes place in such circumstances, the presumption is against the party who is on the wrong side.” Angell v. Lewis, 20 R. I. 391 (39 Atl. 521, 78 Am. St. Rep. 881).
That defendants’ automobile was not exceeding the statutory speed limit of 15 miles per hour in non-business sections of a city by no means conclusively established freedom from negligence. The driver is required to operate a motor upon all public highways at a proper and reasonable rate of speed, with regard to the traffic and use of the highway under the existing conditions, to avoid so far as possible endangering the life or limb of any person or the safety of any property. The demanded care of a driver in operating a motor upon a public highway under varying conditions is thus well stated in Thies v. Thomas (Sup.), 77 N. Y. Supp. 276:
“No owner or operator of an automobile is, therefore, exempt from liability for a collision in a public street by simply showing that at the time of the accident he did not run at a rate of speed exceeding the limit allowed by law or the ordinances. * * * He still remains bound to anticipate that he may meet persons at any point in a public street, and he must keep a proper lookout for them, and keep his machine under such control as will enable him to avoid a collision with another person also using proper care and caution. If necessary, he must slow up, and even stop. No blowing of a horn or of a whistle, * * * without an attempt to slow the speed, is sufficient, if the circumstances at a given point demand that the speed should be slackened or the machine be stopped, and such a course is practicable” to him. “Every such operator of an automobile has the right to assume, * * * that every person whom he meets will also exercise ordinary care and caution according to the circumstances, and will not negligently or recklessly expose himself to danger, but, rather, make an attempt to avoid it.”
If, as in this record, there is testimony showing or tending to show, defendants’ driver for any reason, while running at a speed of 12 to 15 miles an hour, swung his car to the left side of that narrow street to pass on the wrong side an approaching team drawing a loaded wagon, followed by another but 25 feet behind, and then turned again to go diagonally across the street through the narrow space between the two horse-drawn, loaded vehicles without slackening his speed, a jury would at least have supporting evidence for a finding that he was not driving with that due regard to the then traffic and use made of the highway demanded by the statute, to avoid endangering “the life or limb of any person or the safety of any property.” Witness Pierson well expressed the mental attitude of those who continue on at a dangerous speed under such circumstances rather than take the trouble of checking their cars to safe control in his statement:
“I suppose he did as many of us often do on that side; I often run on that side [the left] of the street myself, and it is merely a game of chance.”
If such game of chance only hazarded the safety of the driver who indulged in the game, it might be regarded with complacency, and even condoned, but such conduct is not in harmony with the rule of law requiring due care for the safety of others, although theoretically expiated, as too often occurs, by subsequent expressions of regret at a coroner’s inquest over an involuntary victim of the chance.
Neither can it be held under this testimony, viewed in the light most favorable to plaintiff, that he is shown, as a necessary legal conclusion, to have been guilty of such contributory negligence as to demand a directed verdict for defendants.
Children of his age and intelligence are held to have an understanding of the ordinary dangers incident to their playing upon or crossing public thoroughfares, and the necessity of avoiding them. In this State and elsewhere it has been held, under the facts of the respective cases then being considered, that children injured as a result of suddenly running out to cross a public street or from behind a concealing conveyance, without care or thought to look for a passing automobile or other vehicle dangerously near and which they encountered, were guilty of such contributory negligence as would, in the absence of excusing circumstances, preclude recovery; but in the instant case it may well be contended that there were confusing and excusing circumstances for one of plaintiff’s years, resulting from the driver of the lumber wagon starting to turn his team to the left and defendants’ automobile at the same time coming swiftly down upon the wrong side of the street. Plaintiff’s conduct is to be tested by his age, capacity, and understanding.
“The care and discretion to be used by children, and for which they must be held chargeable, must be proportioned to their age and capacity; and, while it must be ordinary care, it is not the ordinary care required of an adult under the same circumstances.” Wright v. Railway Co., 77 Mich. 123 (43 N. W. 765).
To what extent this boy knew and understood the rules of the road or reasoned upon the proper course which he should pursue to avoid danger is mere conjecture, but to the same extent he is held accountable under the law of contributory negligence .he must be credited with commensurate knowledge of the subject-matter. In seeking to reach the walk from near the center of the street he took the proper direction for safety, from his point of observation, according to the rules of the road, and would have been safe had defendants’ driver kept on his proper side of the street, as plaintiff had a right to presume all vehicles from that direction would do. From where he was at the rear of the load of lumber he could watch in the direction vehicles on the east side of the street should come from. The only thing in that direction for him to avoid was the oil wagon following close behind, drawn by walking horses. This first commanded his attention. He could easily estimate that danger, and know that by moving quickly he would avoid it while passing to the walk across the east side of the street, which was otherwise safe, provided the rules of the road were observed by drivers of passing vehicles.
It cannot be said under these circumstances that a child of his age was, as a matter of law, negligent in not anticipating that defendants’ automobile might come upon him without warning, running at a rapid rate upon the wrong side of the street, and then turn quickly diagonally across the way, between the two horse-drawn conveyances which were moving close together. If he thought that far, he would have the right to assume that should necessity cause the driver to take the wrong side of the street in passing, a timely warning would be given and the car slowed down to immediate control. Contributory negligence cannot be imputed to a plaintiff for failure to anticipate negligent acts of a defendant — no one need anticipate an unlawful act. In Gilbert v. Burque, 72 N. H. 521 (57 Atl. 927), this thought is thus expressed:
“Where the position of the plaintiff who was run into by a vehicle going in the opposite direction was not dangerous, until the other traveler’s act rendered it so, he is not chargeable with negligence as a matter of law because he did not see defendant or because he failed to anticipate that he would suddenly turn to the left, or because he did not instantly resort to some self-protecting expedient.”
An important consideration carrying the question of negligence into the realm of facts for the jury is that this automobile was running on the wrong side of the street when the accident occurred.
Even in the case of adults, it is held that one is not barred from recovery when run into by an auto mobile while crossing a street, merely because of failure to look in each direction before starting to cross. Lynch v. Rubber Co., 209 Mass. 16 (95 N. E. 400); Dugan v. Lyon, 41 Pa. Super. Ct. 52; Bradley v. Jaeckel, 65 Misc. Rep. 509, 119 N. Y. Supp. 1071. In the latter case the court said:
“Especially would it be unwarranted to hold, that when a person steps from the curb of a city street * * * he must look, not only in the direction from which vehicles may rightfully be traveling on that side of the street, but that he must look back, as well, in order to be sure that nothing is approaching from the rear on the side of the street prohibited by the rule of the road to vehicles traveling from that direction.”
In recognizing the significance of defendants’ automobile being upon the wrong side in case of accidents to children, it has even been held as a conclusion of law that a boy was not negligent in moving diagonally across a street without looking for automobiles which might come up behind him, but to do so must be. on the wrong side of the street. Burvant v. Wolfe, 126 La. 787 (52 South. 1025, 29 L. R. A. [N. S.] 677).
Ordinarily, and particularly where the defendant is traveling upon the wrong side, it is for a jury to determine whether an infant struck by an automobile and the driver, both or either of them, exercise requisite care under the facts shown. Turner v. Hall, 74 N. J. Law, 214 (64 Atl. 1060); Lynch v. Shearer, 83 Conn. 73 (75 Atl. 88); Bartley v. Marino (Tex. Civ. App.), 158 S. W. 1156.
Plaintiff’s age and intelligence clearly required, under the circumstances of this case, that his conduct should be measured and ascertained as a question of fact. It was for the jury to determine the double or mixed question of what was reasonably to be expected of an infant of his age, experience, and intelligence, so far as shown, and whether, on the occasion of the accident, his conduct reached the standard of such reasonable requirements so determined.
The judgment is reversed and a new trial granted.
McAlvay, C.' J., and Brooke, Kuhn, Stone, Ostrander, Bird, and Moore, JJ., concurred. | [
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Moore, J.
At the close of the testimony of the plaintiff, and again at the close of all the testimony, the defendant asked for a. directed verdict. The case was submitted to the jury. From a verdict and judgment in favor of the plaintiff the case is brought here by writ of error. We quote from the brief of counsel for appellant:
_ “This case is brought to' recover loss of profits occasioned by the alleged failure of the defendants to receive goods according to the terms of certain contracts of sale. _ The defendant claims that the times of shipment stipulated in the contracts of sale were changed by mutual agreement, and under the altered contract he was not required to accept the goods at the time they were tendered by plaintiff. The plaintiff by its pleadings admits that the times for shipment were extended, but contends that it had the right to make shipment at the time the goods were tendered. The only question before this court is: What was the modified agreement between the parties as to time of shipment? To answer this question correctly will require a full statement of facts. * * *
“We submit as follows: That, the plaintiff having broken the contract by demanding that the defendant accept the waste prematurely, the circuit court should have directed a verdict in favor of the defendant; that the circuit court was in error in stating to the jury in his voluntary charge that the defendant was liable to the plaintiff for the difference between the market value and the contract price.”
The contract between the parties is contained in the correspondence which passed between them. We shall quote sufficiently therefrom to understand the situation. A previous order was filled, and is not involved here.
“Contract No.-. July 11, 1912.
“Sold to Robinson Cider, Vinegar & Pickle Co., Benton Plarbor, Mich.
“For account of the Aspegren Fruit Co., Sodus, N. 'Y., five cars (12 to 15 tons each) prime bleached apple waste, crop 1912 at l^c. per lb. f. o. b. shipping point.
“Payment sight draft B/L attached, payable after arrival and prompt examination of goods.
“Shipments between Dec. 15/12 and Feby. 1/13.
“Above to be packed in bags, bags to be returned.
“In all cases f. o. b. sales the buyer hereby assumes the risks of transit upon issuance by carrier of a clean bill of lading or shipping receipt, notwithstanding the goods may be shipped to seller’s order.
“Any complaint as to quality to be made within forty-eight hours after arrival of goods.
“Sellers are not responsible for nonshipments or delay in shipment caused by ‘act of God,’ general strikes, or strikes on transportation lines, nor for errors or delays on the part of postal authorities or telegraph companies, or for acts of the broker not authorized by sellers. Each car load to be considered as a separate contract.
“Accepted by Robinson Cider Vinegar Co. (R).
“Accepted. Aspegren Fruit Co.,
“Per F. Walter E. Martin, Secy, and Treas.”
“Benton Harbor, Michigan, 12/10/12.
“The Aspegren Fruit Co.,
“Sodus, N. Y.
“Gentlemen:
“I wish you would hold back shipment on the waste we bought of you as we are very short of room.
“We are making preparations to take care of it but are not ready yet. Try and hold it until January 15th, if you can.
“Resp. yours,
“Robinson Cider, Vinegar & Pickle Co.,
“Per John Robinson.”
“Sodus, N. Y., December 14, 1912.
“Robinson Cider, Vinegar & Pickle Co.,
“Benton Harbor, Michigan.
“Gentlemen:
“Your letter of the 10th received, and in reply we beg to state that we will hold back the waste just as long as we possibly can.
“Yours truly,
“The Aspegren Fruit Co.,
“Per F. Walter E. Martin, Secy, and Treas.”
Then followed some letters which are not important to the controversy here:
“Benton Harbor, Mich., Dec. 31, 1912.
“Aspegren Fruit Co.,
“Sodus, N. Y.
“Gentlemen:
“We have yours of the 27th with invoice of car of waste. As soon as it arrives we will unload it and remit you.
“Do not ship any more until we order it out for we are stored full. And all our tankage is full and we cannot work it out until we have tank room.
“Resp. yours,
“Robinson Cider, Vinegar & Pickle Co.,
“Per John Robinson.”
“Sobus, N. Y., January 4, 1913.
“Robinson Cider, Vinegar & Pickle Co.,
“Benton Harbor, Mich.
“Gentlemen:
“Your letter of December 31st received and was not answered before as the writer was out of town. We note that you do not wish us to ship any more waste until it is ordered out by you. We beg to state, however, that we are perfectly willing to hold this waste as long as we can, although you must not forget that we are also crowded at this time of the year. * * *
“The Aspegren Fruit Co.,
“Per F. Walter E. Martin, Secy, and Treas.”
“Benton Harbor, Mich., 1/6/13.
“Aspegren Fruit Co.,
“Sodus, N. Y.
“Gentlemen:
“Inclosed find check for invoice of Dec. 7th $402.50; also the weight of car.
“Do not ship any more cars until we order it out, for we cannot take care cf it if you ship. It will lay here subject to your order.
“Resp. yours,
“Robinson Cider, Vinegar & Pickle Co.,
“Per John Robinson.”
“Sodus, N. Y., January 8, 1913.
“Robinson Cider, Vinegar & Pickle Co.,
“Benton Harbor, Mich.
“Gentlemen:
“Your letter of the 6th received, inclosing check with which we have credited your account.
“We note what you write about not shipping any more waste until you order it out. As we wrote you, we are perfectly willing to hold this waste back as much as we can, but we also pointed out to you that we are crowded for room, and in addition to this we have to pay for this waste, and there is no reason why we should have to pay for and carry waste at an expense to us, when we have it sold to you or any one else. You wrote us some time ago that you were making preparation to take care of this waste, and that we should try to hold it until January 15th, if we could. As we wrote you above, we are perfectly willing to do anything within reason, and are also willing to accommodate you whenever we can and we are willing to hold this waste as long as we can do so, but whenever we find that we will have to ship, we will certainly expect you to live up to your contract and take the waste.
“Yours truly,
“The Aspegren Fruit Co.,
“Per F. Walter E. Martin, Secy, and Treas.”
“Benton Harbor, Mich., 1/13/18.
“Aspegren Fruit Co.,
“Sodus, N. Y.
“Gentlemen:
“We have yours of the 8th in answer to ours of the 6th. We will not receive any more waste until we order it out. So if you ship it, it will lay here subject to your order.
“Respectfully yours,
“Robinson Cider, Vinegar & Pickle Co.,
“Per John Robinson.”
The following telegram was sent:
“Sodus, N. Y., January 30, 1913.
“Robinson Cider, Vinegar & Pickle Co.,
“Benton Harbor, M.
“Referring to your letter thirteenth regarding eight cars waste still due we are willing to hold six cars until February fifteenth provided you let us ship two cars now or willing cancel contracts nine hundred fifty dollars. If you do not agree to this in order protect our legal rights must either hold you difference market value or sell out the waste your account. Wire immediate reply. Collect.
“Aspegren Fruit Co.”
No reply was sent to this telegram, and the following letter was sent:
“Sodus, N. Y., February 7, 1913.
“Robinson Cider, Vinegar & Pickle Co.,
“Benton Harbor, Mich.
“Gentlemen:
“On January 30th we telegraphed you as follows: ‘Referring your letter 13th regarding eight cars of waste still due, we are willing to hold six cars until February 15th, provided you let us ship two cars now or willing cancel contracts $950. If you do not agree to this, in order to protect our legal rights must either hold you difference, market value or -sell out the waste your account. Wire immediate reply. Collect.
“You did not wire us in reply to the above, and we therefore inclose herein bill for difference between the contract price and the market value, amounting to $1,072.50, for which we will thank you- to send us remittance at once.
“Yours truly,
“The Aspegren Fruit Co.,
“Per F. Walter E. Martin, Secy, and Treas.”
Later the following letter was sent:
“Sodus, N. Y., February 17,1913.
“Robinson Cider, Vinegar & Pickle Co.,
“Benton Harbor, Mich.
“Gentlemen:
“We beg to refer you to our letter of February 7th, in which we inclose invoice covering difference due us on eight cars of waste. We will thank you to kindly send us remittance to cover same by return mail and very much oblige.
“Yours truly,
“The Aspegren Fruit Co.,
“Per F. Walter E. Martin, Secy, and Treas.”
No reply was sent to this letter', and the claim was put in the hands of an attorney for collection, and later defendant sent the following:
“Benton Harbor, Mich., April 3d.
“Aspegren Fruit Co.,
“Sodus, N. Y.
“Gentlemen:
“Upon my return home from the South, I am notified by Cady & Andrews, attorneys, that you have made a claim against us.
“Now we see no reason for that. As we wrote you, we were stored full and asked you to hold the goods until we could get room. We are crowded yet as our sales are light on vinegar.
“However, you can start shipping the stock, send us two cars a week if convenient for you. Be sure and send us prime stock, made of late winter apples, and be sure that they will not have over 20% dampness; for we will have to carry the stock a long time until we can make tank room to store in.
“If you buy this stock from other parties you must know that it is prime waste.
“Resp. yours,
“Robinson Cider, Vinegar & Pickle Co.,
“Per John Robinson.”
Plaintiff declined to act upon the suggestion contained in this letter, and this suit followed. There were other letters which are not important to the controversy here.
We think this correspondence clearly answers the question we quoted from the brief of counsel, which is stated to be the only question in the case against the contention of defendant. It does not show a change made in the terms of the original contract. The most that can be said of it is that plaintiff was. willing to oblige defendant so far as it could, but it is clear it was all the time insisted by plaintiff:
“But whenever we find that we will have to ship, we will certainly expect you to live up to your contract and take the waste.”
The record does not disclose any reversible error.
Judgment is affirmed.
McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Bird, and Steere, JJ., concurred. | [
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Ostrander, J.
(after stating the facts). I do not find that appellant’s first point was made in the trial court. Indeed, the court was requested to instruct the jury to render a verdict of guilty and to determine that there was due complainant, by virtue of the contract, $481.20, which was the amount agreed to be due. As to the second point, the appellee does not claim that the vendee’s interest was surrendered by parol, and does contend that what he did amounted to an abandonment of the premises, surrender thereof to the owner, and acquiescence in the claimed and asserted forfeiture of his rights; that thereafter he interfered with complainant’s acts as, possessor of the premises in a threatening manner and excluded complainant by threats and a show of force.
Defendant seems to have wholly misapprehended the complainant’s theory and the ruling, of the trial judge. Complainant does not claim to be entitled to possession of the premises in consequence of the nonpayment of a sum of money. She denies that the parties have any contract, relations. If she is right, it is not because defendant attempted to divest himself of his interest in the land by parol. The contract provides for a forfeiture of the vendee’s rights, at the election of the vendor. The vendor elected to forfeit. It is obvious that thereafter the vendee might have acquiesced, surrendered his possession to the vendor, and thereby lost all right in the premises, or, he might have refused to do so. If he had refused, and suit'to recover possession had been begun and successfully prosecuted, then by virtue of the statute (3 Comp. Laws, §§ 11168, 11177) he would still have the right to pay the sum found to be due on the contract and double the costs awarded to complainant, and in this way save his interest in the land. A jury has found that the vendee acquiesced in the forfeiture and surrendered possession to the vendor. If he did, he should not have retaken and retained possession by force. He could not, in this way, reinstate the original contract relations of the parties and by virtue of them claim the benefit of the statute right to discharge his contract obligation after judgment. There was testimony supporting the verdict of the jury, and there was no motion for a new trial.
The charge of the court was contradictory, both in the recital of the contention of complainant and in advising the jury that if they found no surrender of possession by the vendee, they should still find defendant guilty and find the amount due on the contract. The instruction is explained by the attitude of defend ant as indicated in the requests to charge, and the wrong recital may be charged to inadvertence. Defendant could not be, and was not, prejudiced by either.
It is alleged as error that the court struck out the answer of defendant to the question, “Did you ever surrender possession to Josephine R. Kennedy?” What the parties did and said was laid before the jury. Whether there was a surrender was at least a mixed question of fact and law. No fault is found with the charge in this behalf, and the court was not in error in the ruling complained about.
Reversible error not being made to appear, the judgment is affirmed.
McAlvay, C. J., and Brooke, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred. | [
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] |
Bird, J.
In October, 1911, plaintiff purchased a Ford automobile of defendants, and paid $560 therefor, with a warranty that it was a “good car and would run all right.” The car soon developed motor trouble, and plaintiff returned it several times to defendants at their garage in Ypsilanti, to have the defect corrected. After several attempts to adjust it, it still worked badly, and complaint was again made to defendants. Defendant Schaible then requested plaintiff to return the car to their garage and give him one more chance to adjust it, and promised if he could not do so he would give him a new Ford car, or refund his money. On this occasion the car was in defendants’ garage for several days, and during the time a fire occurred in the garage and the car was damaged. Defendants at once advised plaintiff of the damage to his car, whereupon he went to Ypsilant and saw the defendants, and while there it was suggested by them that the repair expense would not be heavy to send it to the factory at Detroit to be repaired.
Plaintiff advised them that he would not pay for any repairs on the car; that he had bought a good car and had not yet got what he paid for. The car, however, was sent by the defendants with other damaged cars to the factory and repaired, and, when returned to Ypsilanti, plaintiff was notified that his car was in working order and that he could come and get it. When he went after it, he was informed that there was a repair bill against it for $203.85. Plaintiff refused to pay this amount and possession of it was denied him. He thereupon began this suit in replevin and recovered possession of it. The trial resulted in a judgment for plaintiff, and defendants assign error.
It was the contention of the defendants that the car was in their possession for the purpose only of making repairs, and that the fire which occurred in their garage was due to no fault or neglect of their own; therefore the loss was plaintiff’s loss, and not theirs, and that the repairs for putting the car in shape was a legal charge against the plaintiff.
On the other hand, the plaintiff contended that he bought the car with a warranty that it was a good car and would run all right; that the car was returned to the garage repeatedly, not for repairs, but to give the defendants an opportunity to make good their warranty; and that its final return was made under the promise of defendants to make good their warranty, and if they could not do so, they would furnish plaintiff with another car, or refund the money; and, further, that he advised the defendants after the fire that he would not pay for any repairs, and therefore was not liable for them. Under the conflicting claims of the parties, the trial court submitted the case to the jury, and, among other instructions, gave the following, which is assigned as error:
“Under the evidence in. this case the plaintiff is not obliged to pay for any repairs to said machine, unless you find from the evidence that there was an agreement or understanding on the part of Mr. Helber to pay for same.”
1. The principal assignment of error is based upon the refusal of the court to charge, as requested, that for the repairs made after the fire, in the absence of an express agreement, the law would imply a promise upon the part of plaintiff to pay what they were reasonably worth. The complaint is that the trial court not only refused to so charge, but did charge in substance that defendants could not recover for the repairs to the car unless they found that plaintiff had agreed to pay for them.
It is undoubtedly true that if plaintiff took his car to defendants’ garage to be repaired, and no agreement was made as to compensation, the law would imply a promise upon the part of plaintiff to pay what the repairs were reasonably worth. But that is not quite the situation presented by the testimony.
Even if it be conceded that the car was in the garage for repairs before the fire, after the fire it was optional with plaintiff whether or not he would have his car repaired, and, if defendants caused the car to be repaired at the factory in Detroit without any agreement upon plaintiff’s part to pay for it, they cannot recover for it. Under such circumstances, the law would raise no implied promise on the part of plaintiff to pay for repairs which he had never ordered, and to the payment of which he had expressly objected before they were made. We are of the opinion that the trial court properly instructed the jury as to this phase of the case.
2. Eugene Helber, father of plaintiff, testified, over defendants’ objection, that he informed defendants, when they suggested having the car repaired at the factory, that “they would pay no repair bill.” Error is assigned on the admission of this testimony, on the ground that there was no testimony showing that the witness had any authority to speak for the plaintiff. The testimony shows that the father carried on the negotiations with defendants, which resulted in the purchase of the car, and that they consulted with him about the repairs and when the car was damaged by fire, the father, and not plaintiff, was notified by them. It further appears that, when the father advised the defendants that they would pay no repair bill, the plaintiff was present and gave his tacit assent to the statement of the father. Under these circumstances, we think the authority of the father to make the statement in behalf of the plaintiff might reasonably be implied. The authority to negotiate for the purchase of the car would carry with it the authority to see that he got what he contracted for. 2 Cyc. p. 948; Ferguson v. Hemingway, 38 Mich. 159.
3. It appears that on the trial plaintiff objected to any recovery by the defendants for repairs because they had failed to file a certificate with the county clerk, in accordance with Act No. 101 of the Public Acts of 1907, relating to copartnerships. Inasmuch as this right was not denied to defendants by the trial court, we see no occasion to discuss it.
We find no error in the record, and the judgment will be affirmed.
Brooke, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred. McAlvay, C. J., did not sit. | [
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Stone, J.
The bill of complaint in this cause was filed to restrain a suit at law, and for further specific relief as hereinafter indicated. The defendants de murred. Upon the hearing of an application for an injunction, the same was denied. Afterwards the demurrer was sustained and the bill of complaint dismissed. The complainant has appealed. .
The bill alleges that the complainant (hereinafter called the company) is a corporation organized under the laws of this State, and is engaged in the business of manufacturing refined sugar from sugar beets; that one of its plants, for this purpose is located at Alma, Mich., and is known as the “Alma Plantthat it obtains its supply of sugar beets by contracts with farmers in the neighboring counties; that for the purpose of encouraging and assisting men without means to plant, cultivate, and harvest sugar beets, it has in certain cases rented lands, in its own name for such purpose, and sublet such lands to such persons, advancing money to such growers, for the production and delivery of the crop; that with this object in view, the company entered into a written lease with one Charles Johnson for 60 acres of land, on August 27, 1910, for the term of two years from and after January 1, 1911, a copy of which is made a part of such bill, and is referred to as “Exhibit A.” It is averred that on the same day the company entered into a written contract with the defendant Edmond Moffett to grow sugar beets upon the same lands rented from Johnson, and to deliver such beets at a stated price to the company at the Alma plant “during the year commencing with the spring of 1911.” Said agreement is referred to as “Exhibit B,” and contained the following provision:
“Said beets shall be harvested and loaded by the grower for the company on cars, or delivered at factory sheds, at such times and in such quantities as may be directed by the company, allowing each grower his pro rata, amount. The company will not be able to receive or pay for beets which are rotten, or otherwise unfit, or undesirable for making sugar.”
This contract bears the following date: “Date 1/27/1911.” The bill avers that the date was an error, and should have been, “August 27, 1910.” The bill further alleges that on the same day, to wit, August 27, 1910, the company and said defendant Moffett made and entered into a second contract, in writing, referred to as “Exhibit C,” whereby the said defendant assumed the lease between the company and. Charles Johnson, and the company agreed therein—
“To advance all necessary money to Mr. Moffett to pay off his help, but the aforesaid Edmond Moffett agrees to do all the work he can himself, said money so advanced to be paid back to the aforesaid sugar company with interest, according to certain notes used by the aforesaid sugar company; the aforesaid Edmond Moffett agrees to make out a statement of the actual expense, and turn it over to the company or its agent whenever he wishes money advanced to pay off help; all moneys so advanced shall be taken out of the proceeds of the crops grown if the proceeds come to enough, otherwise Mr. Moffett is liable the same as any other debt.”
It is averred that under the said contracts the defendant Moffett proceeded to grow upon the lands in question 60 acres of sugar beets for the company; that the company, under the last-named contract, to assist said defendant to produce such crop, did, from time to time, advance to him large sums of money; that it did also advance beet seed to said defendant and paid freight charges for the delivery of such beets to its Alma plant, and that the amount of such advances exceeded the sum of $2,000. It is further averred that at the time such cash advances were made, from time to time, the said defendant gave to the company security notes or contracts, of which the following is a specimen:
“350.00 No. 5600.
“Ashley, Michigan, January 17, 1912.
“Michigan Sugar Company (Alma Plant).
“Gentlemen:
“I hereby make application for a loan of three hundred and fifty dollars, to use in growing and harvesting my crop of sugar beets grown for you under my contract No. 2822, for the season 1911.
“I hereby acknowledge the receipt of said sum of $350.00 from the Michigan Sugar Company, and agree to pay the same to the said company, or its order, on demand after Feby. 1, 1912, with interest at the rate of 6% per annum.
“As security for the repayment of said loan as aforesaid, I hereby sell, transfer and set over unto the said Michigan Sugar Company, all of the sugar beets raised during the year 1911 upon the lands mentioned in said contract, and authorize the said Michigan Sugar Company to deduct the amount above named, with interest thereon, from the first money due or payable to me; provided, however, in case I neglect to cultivate, harvest or deliver the crop, in accordance with said contract, said company is authorized to do so, and to charge the expense thereof to me, and to first deduct the amount thereof from the first moneys due or owing me.
“Edmond Moffett, Grower.”
It is further averred that said defendant,. in pursuance of said contract relations, delivered to said company, beginning on September 20, 1911, and ending on February 8, 1912, about 130 wagonloads of sugar beets, grown upon the land described in said contract, which beets were properly tared and tested by complainant in the due course of its business, and which several net sums of money for said loads of beets said defendant is entitled to have applied in payment of said several sums of money so advanced by complainant to said defendant. It is further averred that said company, at its Alma plant,- had made and entered into 2,075 beet contracts with farmers, which were in existence and force during the season of 1911. The bill further avers that on November 26, 1911, the defendant Moffett made and executed an assignment of his contract with said company, to the defendant Luke B. Sawyer, and authorized the said Sawyer to collect and receipt for alb amounts due defendant Moffett thereon, that on November '30, 1911, the defendant Sawyer caused said assignment to be filed with complainant for the purpose of giving the latter notice of his right to receive all payments due upon said contract, and that defendant Sawyer made claim to the full amount of money that might become a credit in favor of defendant Moffett under his contract. It is further averred that on June 8, 1913, the defendant Moffett began a suit at law against complainant, in the circuit court for the county of Gratiot by declaration, counting upon a breach of the contract known as “Exhibit B,” in this: That the company refused to receive the beets grown by said Moffett—
“In season, and within a reasonable time after the same were harvested and ready for delivery said defendant refused to receive the said beets, or any part thereof, except that it received a part of said beets, beforehand after that time, and wrongfully refused to receive the remainder and did not pay said plaintiff for those which it received. And the plaintiff further avers that by reason of the premises and the failure, neglect, and refusal of said defendant to receive said beets in due season 'and in accordance with the terms and provisions of said contract, and when so tendered and offered to it, as aforesaid, by said plaintiff, the said beets became and were injured, frozen, spoiled, and worthless.”
Said declaration also contained the common counts in assumpsit. The plaintiff in that suit filed a bill of particulars, claiming that the company was indebted to him for 600 tons of sugar beets raised by him in the campaign of 1911, and tendered to said company and refused, which at the contract price amounted to a large sum, to wit, $4,400. Also for 200 tons of beets raised, grown, harvested, and delivered under the terms of said agreement, for which the company did not pay said plaintiff, $1,100. Also for damages because of the failure, neglect, and refusal of the company to abide, perform, and fulfill the terms of said agreement, $10,000.
To this declaration the company pleaded the general issue, and gave notice of set-off, with a bill of particulars of its advances and payments, also of payment, satisfaction, and discharge, of the authorized deduction of advances with interest, as evidenced by said writing and notes; also by way of recoupment that said plaintiff—
“Did not with due care, plant, cultivate, harvest and deliver during the year commencing with the spring of 1911, sixty acres of sugar beets on said lands, but on the contrary, in violation of said contract in that regard, permitted said beets, by exposing them to the elements, to become frozen, rotten, and worthless for use by the defendant in the manufacture of sugar therefrom, for which purpose said plaintiff knowingly produced said crop of sugar beets for the said defendant, by reason whereof the said defendant avers that it suffered great damage in this: That it has not been paid for said beet seed, and has not been paid for said several sums of money and advances and items so made, as set forth as aforesaid, as of dates previous to March 1, 1912, to its damage of $2,000. And that the said defendant has suffered damage in the loss of profits which it would have enjoyed and received had said beets been delivered to it as said plaintiff had contracted, in this: That it would have made and received, from its use of said beets for said purpose, the sum of a net profit of $2 per ton of beets to its damage, to wit, $1,000, and to its total damage of nonperformance of said contract of $3,000, which damage said defendant will recoup as against all damages, if any, which plaintiff may have sustained in the premises, and have the balance certified as a judgment against said plaintiff, in favor of said defendant.”
Counsel for complainant state in their brief that this bill is filed in part as a bill of interpleader, in part as a foreclosure bill, also to prevent a multiplicity of suits, and for an accounting, asserting that:
“The whole question of default by either party in accepting or delivering beets under these contracts, involves the delivery of beets on 2,075 growers’ contracts.”
They also assert that the company’s defenses are not available in the action at law.
To this bill of complaint the defendants demurred for the following reasons:
“(1) It appears by said bill that a court of competent jurisdiction, to wit, the circuit court for the county of Gratiot, has become possessed of a case involving a legal controversy between said complainant and said defendant Edmond Moffett, and, it not appearing by said bill that that action is not brought by, or in behalf of said defendant Luke B. Sawyer in the name of Edmond Moffett as his assignor, the authority of that law court continues, subject to the appellate authority, until the matter is finally and completely disposed of, and no court of co-ordinate authority is at liberty to interfere with its action.
“(2) Complainant has a full and adequate remedy at law, if it has any defense to said action.
“(3) There is. no equity in said bill of complaint.
“(4) The two contracts mentioned and referred to in said bill of complaint are either a part and parcel of one contract, or they are not; if they are, complainant can make its defense at law; if they are not, equity has no jurisdiction to ascertain and apply any claim of complainant against said defendant Edmond Moffett on account of the other contract, not mentioned and declared upon in the declaration in said action at law until said claim is litigated at law.
“(5) It does not appear that complainant had or has any rights under, or claimed to arise on account of either or both of the contracts mentioned and referred to in said bill of complaint as ‘Exhibit B’ and ‘Exhibit C,’ which cannot be fully, fairly, and adequately considered and litigated in said action at law.
“(6) It does not appear that there is either any danger or any possibility of said complainant being put at a disadvantage, or in any other manner damnified by reason of the assignment from said defendant Edmond Moffett to said defendant Luke B. Sawyer, if it is required to make its defense in such action at law, and is not permitted to enjoin and restrain the prosecution of such action at law.”
In sustaining the demurrer the learned circuit judge, in his opinion, said:
“The contention of complainant that it may be liable to Sawyer under the assignment need not be discussed, as Sawyer has filed an affidavit herein expressly stating that the suit on the law side of the court was commenced with his consent and under a contract between himself and Moffett, a copy of which is attached to his affidavit. Hence in any event Sawyer can make no claim in any other suit against the sugar company.
“Complainant claims that the controversy will require an accounting, and that this can be had in a court of equity. After a careful examination of the cases cited by the solicitors for both parties, I have reached the conclusion that if the case requires an accounting, it can be had at law as well as in equity. Certainly the case here is no stronger than the one in the cited case below, where our court held that the mere fact that the accounts of the State for a period of years with those of a bank are to be examined does not give equity jurisdiction. Title Guaranty & Surety Co. v. Indemnity Co., 167 Mich. 535 [133 N. W. 515].
“It is next contended that defendant in the law case cannot set off the amounts advanced by it to plaintiff. That action is in assumpsit which is an equitable action and the advancements can be treated as payments, and under well-settled rules plaintiff then can recover no more than is equitably due him.
“If complainant is right in its assertion that there was but one contract, and that plaintiff has sued only on a part of it, that defense can be made at law. If the contracts are separate ones, plaintiff can be compelled to litigate both at this time.
“If, as claimed by plaintiff in the law case, the contract is to be construed like ordinary contracts, then the question to be decided is whether there has been a breach on the part of defendant sugar company and the amount of plaintiff’s damages in case he shows that he has fulfilled his contract. And upon these questions he is entitled to the verdict of the jury.
“On the other hand, if he contracted with reference to the usage claimed by the sugar company, and it has the right to show this usage and its custom in accepting a pro rata share under each contract, this can be shown as well at law as in equity. There is no rule that, because much time will be taken in the taking of evidence to establish the rights of the parties, therefore equity courts must take jurisdiction. It is the nature and not the extent of the accounting that determines this question. In many cases juries sit for weeks and months listening to testimony in order to arrive at a proper verdict; and, while it may be'more expensive^ to the taxpayers, it usually is not more so to the litigants, and at any rate presents no reason why the case should not be tried on the law side.
“These are the material questions involved, and I am unable to reach the conclusion that complainant has made or stated such a case as entitles it to relief. The grounds of the demurrer are therefore sustained, and an order may be entered accordingly and the bill dismissed.”
While it may be questioned whether the circuit judge could consider the affidavit of defendant Sawyer in support of the demurrer, yet, it not being claimed by the bill of complaint that the suit at law was not brought by or on behalf of said defendant Sawyer, we think the circuit judge reached the correct conclusion. The assignment of a non-negotiable demand does not, at common law, entitle the assignee to. pursue remedies in his own name, upon the-con tract. The statute (section 10054, 3 Comp. Laws, 5 How. Stat. [2d Ed.] § 12704) is only permissive in its provisions, and the assignee is still at liberty to sue in the name of the contracting party. Sisson v. Railroad Co., 14 Mich. 489-496 (90 Am. Dec. 252); McRoberts v. Lyon, 79 Mich. 25-31 (44 N. W. 160).
The bill of complaint cannot be treated as a bill of interpleader. It lacks many of the essentials of such a bill. Neither can it be treated as a foreclosure bill, for it appears by the bill that there are no beets now in existence upon which to foreclose any lien, and such foreclosure would be fruitless. It is contended on behalf of complainant that a proper disposition of the issues raised involves the delivery of beets on 2,075 growers’ contracts. These growers are not before the court, and the rights of the parties to this suit can as well be disposed of in the suit at law as in equity. We have fully stated the issues in the law case, to show that the rights of the parties can be fully litigated in that suit. There is no claim in the bill that complainant is entitled to the cancellation or surrender of any contract, or that it is entitled to any relief, other than a money judgment. We are of opinion that it has a full and adequate remedy at law in the law case now pending, and that the trial court properly sustained the demurrer.
The decree below is affirmed, with costs to the defendants.
McAlvay, C. J., and Brooke, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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Steere, J.
Plaintiif brought this action in the circuit court of Montcalm county, to recover the contract price of a heating and ventilating system which it installed in defendant’s schoolhouse during the fall of 1911. Upon the trial of said cause in the circuit court before a jury the court directed a verdict for defendant on the ground that plaintiif had mistaken its remedy. Plaintiff’s declaration was in assumpsit upon the common counts, with a special count upon a written contract alleged to have been entered into between the parties and set forth at length. Defendant pleaded the general issue, and, by an amended plea, gave notice of special defense as follows:
“Take notice that in the trial of said cause defendant will show in its defense under the general issue above pleaded that no such order or writing, as is described in plaintiff’s declaration, was ever executed by the officers of the defendant school district, as is shown by the following affidavit.”
The attached affidavit was signed and sworn to by Henry Herzog, stating that he was then director of said school district, and no such order or writing as described in the declaration was ever executed by the officers of defendant. It is undisputed that the plant in question was installed in defendant’s schoolhouse under some kind of agreement between the parties.
Plaintiff is a foreign corporation, with its. home office in Minneapolis, Minn., and was licensed to do business in this State. It maintained a branch office in Lansing, Mich., under the charge of a State manager. On July 26, 1911, an order in writing was given by defendant’s officers to an agent of plaintiff. The nature and terms of this order are in dispute.
Upon the trial plaintiff introduced testimony showing that the original order, signed by the three officers of defendant, was received and accepted by it, mailed to its home office in Minneapolis, and there accidentally destroyed by a fire which occurred in the building on January 7, 1912. A paper claimed to be a true copy of the original was produced and put in evidence. It is as follows:
“Copy.
“County op Montcalm, State op Michigan.
“The Waterman-Waterbury Company,
“Lansing, Michigan.
“We hereby authorize the Waterman-Waterbury Company to furnish one Waterman-Waterbury heating and ventilating system, style C, size 24, kind, Special, to school district No. 4, township of Cato, for which, on February 1, 1912, we agree to pay the sum of $120, or issue a school warrant on February 1, 1912, drawing 6 per cent, interest.
“We agree to transfer the Waterbury system from the freight depot to the schoolhouse and furnish a man for one-half day to assist the regular setter in installing the Waterbury system and to see that the doors, windows, ceiling, etc., are reasonably tight.
“The_ Waterman-Waterbury Company guarantee that this system will be constructed of first-class material the same as described in the catalogue and shown by the salesman and manufactured in a careful workmanlike manner and free from imperfect workmanship and material.
“This system is guaranteed to heat the schoolroom to 70 degrees during the coldest weather.
“This system is guaranteed to furnish thorough ventilation during school hours.
“Dated July 26, 1911.
“William Coleman, Director.
“Emery Almy, Treasurer.
“H. W. Rockelman, Moderator.
“Given at meeting of school board.”
Defendant denied the correctness of this copy, and produced in evidence what it claimed was a correct copy of the order given by it to plaintiff, which is in the following words and figures:
“Copy.
“Lakeview, Michigan, July 26, 1911.
“The Waterman-Waterbury Company,
“Lansing, Michigan.
“Gentlemen:
“You may install in our schoolhouse, district No. 4, Cato township, Montcalm county, State of Michigan, one Waterbury system, style C, size 24. We will use this until February 1, 1912, or, if we wish, until March 1, 1912. If the system proves to be as represented, we will pay for it either in cash or school district warrants bearing 6 per cent, interest from February 1, 1912.”
A plant of the size and style described was installed in defendant’s schoolhouse by plaintiff’s agent, assisted in the work by Henry W. Rockelman, the defendant’s moderator, who testified that the furnace was installed in a satisfactory manner. Counsel for defendant stated in answer to an inquiry from the court that no question was raised as to the material used. Plaintiff introduced testimony tending to show performance, on its part, of the contract relied upon, and that, when properly operated, the system would produce the results guaranteed.
The plant was used during November and December of 1911, and for some time after the holidays. The teacher then in charge testified that she had difficulty at first in keeping the children warm, but, after being instructed by a representative of plaintiff, she had success with it, and heated the room properly, being able on a cold morning to reach a temperature of 100 degrees; that the ventilation, in her opinion, was all right, and she used the system as long as they would let her. Other evidence was introduced tending to show its successful operation.
As indicated by the pleadings, questions asked, and statements of counsel at the trial, it appears to have been defendant’s contention that a “trial order” was given for the system, with the right to reject the same if it did not prove “to be as represented,” and that it failed to either heat the schoolhouse sufficiently or as represented; that defendant therefore rejected it, and Owes plaintiff nothing for it.’ At the conclusion of plaintiff’s testimony, opposing counsel moved the court to direct a verdict for defendant and enter judgment accordingly, for the reason:
“That, under the absolute showing in this case, based upon the evidence of the plaintiff company all the way through, a verdict should be directed, for the reason they have mistaken their remedy.”
After listening to argument, the court granted the motion, and directed a verdict as requested; the controlling reason being embodied in the following excerpts from the charge to the jury:
“The amount here has been liquidated; no defense looking to the reduction of the amount agreed upon has been raised; the only defense that has been offered here outside of the general issue is a denial under oath of the execution of the contract as presented. * * *
“Now, a judgment given in this case would have no tendency to liquidate the claim. It would be $120, and interest, when we get through with it, or it would be nothing.”
It is manifest that at least two issues of fact were involved in the case; the nature of the contract en tered into between the parties; and whether, if the-contract was as it claimed, plaintiff had performed on its part, and the system fulfilled the guaranties, when’ properly run.
This case is analogous in many respects, though not identical, with Waterman-Waterbury Co. v. School District No. 2, 182 Mich. 498 (148. N. W. 673), an action in assumpsit which disposes of some of the questions proposed in this record, but in which the propriety of the remedy was not questioned.
Upon this record counsel for defendant correctly states that there is but one proposition to be considered, which is the correctness of the ruling by the court that an action in assumpsit would not lie, and plaintiff’s only remedy was by mandamus. This claim is based upon the contention that the claim is liquidated, and the school district cannot be subjected to the expense of regular litigation on a demand already liquidated, in which execution could not issue should judgment be. recovered by plaintiff, who might thereafter have to resort to mandamus to compel payment of such judgment.
If the latter suggestion were accepted as controlling, all actions looking to a money judgment against a municipal corporation would be idle, and all judgments obtained against them erroneous, for an execution cannot issue upon a judgment against such corporations. The law provides other methods for collecting the same, and it is not to be presumed that a municipal corporation will attempt to repudiate its legal liability when finally adjudicated.
While it is true that plaintiff’s claim is for a definite amount under an alleged contract, and is a liquidated demand from its standpoint, it is not, however, a liquidated liability of the school district, the validity of which has been determined by any statutory board or tribunal. Neither • does the admission of de fendant’s counsel that its liability is either for the amount named in the alleged contract or nothing, liquidate the claim to the exclusion of an action in assumpsit on a contract as to which the defense denies liability, and contends that no such contract was ever made.
The term “liquidated” has a somewhat varied meaning, but, when used in reference to claims or demands against municipal corporations enforceable only by mandamus, it signifies claims on which the amount due is either fixed by law or has been ascertained and agreed upon between the parties. Here it is denied that any amount is due, and none is fixed by law.
Plaintiff asserts and seeks to enforce a legal liability created by the voluntary act of defendant’s officers in entering into a contract which they had authority to make, but deny having made. The law imposed on the school board no duty to enter into a private contract to buy a certain kind of heating and ventilating system, but it was within its power to do so if deemed for the best interest of the district. It was discretionary.
The primary purpose of the writ of mandamus is to enforce duties created by law. It is stated by text-writers, as a general principle, that the writ is not designed as a remedy for the collection of debts, and will not lie to enforce the private contracts of municipalities. Merrill on Mandamus, § 16; High on Extraordinary Legal Remedies, § 341; 26 Cyc. p. 164. It is said:
“That if there be doubt as to what his legal right may be, involving the necessity of litigation to settle it, mandamus must be withheld; that its principal office is not to inquire and investigate, but to command and execute. * * * The rule has also been stated that mandamus will not lie to compel a public officer to perform a duty dependent upon disputed and doubtful facts, or where the legal result of the facts is subject of legal controversy. If the right is reasonably in serious doubt, from either cause mentioned, the discretionary power rests with the officer to decide whether or not he will proceed to enforce it, till the right shall have been established in some proper action; and that discretion, fairly exercised, cannot be controlled by mandamus.” 2 Bailey on Habeas Corpus, pp. 801, 805.
"The writ of mandamus is designed to enforce a plain, positive duty, upon the relation of one who has a clear legal right to have it performed, and where there is no other adequate legal remedy.” State v. New Haven & Northampton Co., 45 Conn. 331.
These general principles are recognized and sustained by our own decisions. While this court has treated the writ of mandamus as in its nature discretionary and prerogative, not necessarily limited by strict rule to cases involving positive statutory duties, or in which there was an entire absence of any other remedy, it has frequently said that the writ will not be granted where there is another adequate remedy. 2 Stevens’ Michigan Practice, § 458, and cases cited.
School districts are municipal corporations, "capable of suing and being sued, of contracting and being contracted with.” 4 How. Stat. (2d Ed.) § 9873. This school district is charged in an action ex contractu with nonperformance of a contract which it voluntarily entered into. The contention involves only an alleged simple money claim for the purchase price specified in a contract of bargain and sale, and is between the original contracting parties. Both the execution and performance of the asserted contract are in dispute. Such doubts in relation to an alleged contractual indebtedness are familiar sources of litigation which are solved in independent adversary proceedings at law, by an action in assumpsit between the parties. Such is the recognized and adequate remedy where differences of that nature arise. That one of the contracting parties is an artificial person, or a municipal corporation capable of suing and being sued, does not change the rule, or render the remedy less adequate for the solution of such questions.
We are unable to discover in the cases cited by counsel, or others which have been consulted, a denial of the principle that the “liquidated claim” requisite for.mandamus must be a claim wherein the amount due is either fixed by the judgment of a court, by some statutory provision, by some authorized officer or board, or by agreement between the parties. In the early case of Township of Marathon v. Oregon Township, 8 Mich. 372, cited by defendant, wherein it was held mandamus, and not assumpsit, was the proper remedy, the opening statement of the opinion thus sounds the distinction:
“This suit is brought to recover an ascertained sum found by the united action of the township boards to be due from Oregon to Marathon, upon a division of the latter township, whereby the former was set apart and became liable for its share of the debts to be thus determined.”
This is emphasized and further pointed out as controlling in the following:
“The action in this case is brought, not upon an open and disputed account, but upon a liquidated claim, determined by a statutory board or tribunal. * :[! *
“Being ascertained by the tribunal referred to, it becomes, under the statute, a charge upon the township.”
Reeder v. Wexford County Treasurer, 37 Mich. 351, cited by defendant, also involved a settlement between two townships. It appears a settlement was had and a division of indebtedness assigned by the proper authorities. The court did not sustain defendant’s contention that a change of incumbency affected mandamus proceedings against an official, and that a want of funds was a sufficient answer, but held that interest was not chargeable upon the sum ascertained to be due, under the circumstances of that case. The question of another adequate remedy does not appear to have been, raised.
The cases of Mackenzie v. Baraga Township Treasurer, 39 Mich. 554 and Just v. Wise Township, 42 Mich. 573 (4 N. W. 298), involved the validity of highway orders, ascertained sums liquidated, as due from the townships, by their highway commissioners. The only questions raised were questions of law, touching the statutory authority of such officials to issue the orders and obligate the townships.
In Pape v. Township of Benton, 140 Mich. 165 (103 N. W. 591), the last case cited by defendant, this court held that a township is not primarily liable for the cost of a road machine purchased by the highway commissioner under the provisions of- sections 4193-4197, 2 Comp. Laws, and assumpsit will not lie; the remedy being by mandamus against the proper officers to compel levy and collection of a tax to pay the same as provided by law. After reviewing the special provisions of the statute in question and pointing out its mandatory provisions, the reason why assumpsit is not, and mandamus is, the proper remedy appears clearly stated in harmony with the general rule as follows:
“No proceeding is necessary to determine the amount of such indebtedness. That amount is fixed by the proper township officers, who certify to the board of supervisors. The contract fixes the purchase price. Payment can be made only through official channels. Everything is a matter of record. At no time can the balance due be a matter of doubt. The township is not primarily liable. No contract relations exist between the seller of the road machines and the township.”
In Burland v. Benefit Ass’n, 47 Mich. 424 (11 N. W. 269), an action in assumpsit on a contested certificate of membership was sustained against defendant’s contention that the remedy was by mandamus to compel a levy of an assessment to pay the claim. It was there said:
“The case presented is one of contract between parties and a breach thereof, and even should we accept as correct the argument of counsel as to the nature of the agreement, still the conclusion would mot follow that mandamus was the proper remedy. Such a writ does not purport to adjudge or decide any right. It is rather in the nature of an award of execution than of judgment. It is the mode of compelling the performance of acknowledged duty or enforcing an existing right rather than deciding what that right or duty is.”
In Van Wert v. School District, 100 Mich. 332 (59 N. W. 139), the court defines a liquidated demand, as distinguished from a disputed claim, as an account “audited to the satisfaction of the plaintiff by the moderator and assessor.”
The case of Coffin v. Board of Education, 114 Mich. 342 (72 N. W. 157), is in principle closely analogous to this. In each case plaintiff’s claim was founded upon a contract which the school board was authorized, but not in duty bound, to make, and recovery was sought for breach thereof. In that case plaintiff was hired by defendant as a teacher in its schools. There was no dispute about the amount as expressed in the contract of employment. The demand was liquidated as fully there as here. The board discharged her, for good cause, as it is claimed, and refused to pay her as contracted. She resorted to mandamus to compel payment. In dismissing her writ because the usual action at law afforded her a remedy, it is said:
“If she was dismissed for cause which would be sufficient to warrant an employer to dismiss his servant, then she had no right of action. * * * But, whatever may be the rule in this case which must determine the rights of the relator, it is evident that she has an adequate remedy at law. It is an ordinary contract of employment as a teacher in the public schools. She claims to have lived up to its requirements; that she was unjustly and unlawfully discharged, and that she is now entitled to be paid. On the other hand, the respondent contends that it had power to discharge her, and did discharge her for good and sufficient cause. Courts will not permit the use of tlie writ of mandamus when there is a plain, direct, and adequate remedy at law. Merrill, Mand. § 10, and cases there cited. We are not disposed to carry the use of this writ beyond the bounds to which we have already gone, or permit its use in cases where there is so plain a remedy as here shown.”
We need spend no time in considering cases cited by defendant in support of the contention that request of the board for an order or auditing of the account and demand for payment were a prerequisite to legal proceedings. According to the contract which plaintiff relies on, defendant agreed to make payment or issue a school warrant therefor on February 1, 1912. Plaintiff’s testimony shows that some time in February, after the plant was installed and in successful operation, its agent asked the members of the board to give him an order and settle for it before he left; that the three members met together, and thereafter “refused to give it.” This, if controverted, is an issue of fact to be disposed of at the trial, and, as raised, has no bearing upon the propriety of the remedy under consideration.
We conclude that all doubts arising from the conflicting claims over this alleged indebtedness by contract should be settled in an action in assumpsit.
The judgment is reversed, and a new trial granted.
McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Bird, and Moore, JJ., concurred. | [
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Ostrander, J.
The form of action is assumpsit, the declaration special. It is alleged that plaintiff is an attorney and counselor at law and had been retained by one Robert Campbell, who was confined in the common jail of Jackson county, charged with having committed a crime—i. e., embezzlement and forgery—on the complaint of one Pauline Ragotsky, and charged with embezzlement on the complaint of one Charles Smith; that defendant, Andrew Campbell, in consideration of professional services there after to be rendered by plaintiff in the defense of said Robert in the matter of said charges, and in consideration of certain necessary moneys to be thereafter advanced by plaintiff in that behalf, made his certain written guaranty to pay plaintiff reasonable compensation for his services and repay him all the sums of money advanced and disbursed by him in and about the said defense upon the said charges; that plaintiff rendered services and advanced funds, which defendant afterwards agreed to pay. With his bill of particulars, plaintiff gave a copy of the alleged guaranty, which reads:
"Jackson, Mich., Oct. 12, 1908.
"In consideration of the services and disbursements of Thomas E. Barkworth as attorney for my son, Robert Campbell, I hereby guarantee the payment of all sums reasonably due for such services and disbursements as the same may accrue.”
The bill of particulars specified dates when services were rendered from August 8, 1908, to March 7, 1910, itemized expenses, and credit is given for $122.37. With the plea of the general issue, defendant gave notice that he would insist in his defense and give evidence to prove that he caused to be paid to plaintiff $1,000 upon the amount due to him, which was the reasonable compensation for the services and disbursements.
It appeared that one William Campbell, a brother of defendant, paid plaintiff $1,000 February 25, 1910. It is not mentioned in the bill of particulars. Upon what account it was paid, how and by what authority it was disbursed, are questions concerning which testimony was offered. All questions raised and debated grow out of this payment and its application as claimed by plaintiff. A verdict having been returned for plaintiff, and a motion for a new trial denied, judgment was entered on the verdict.
Under his assignments of error appellant contends that testimony about the purpose for which the $1,000 was paid to plaintiff and was disbursed by him was not admissible under the pleadings “as a basis of recovery by the plaintiffno allegation concerning the matter appearing in the declaration, and no items concerning it in the bill of particulars. The testimony was not offered as a basis for the demand asserted by plaintiff. Defendant was asserting that plaintiff had been paid, in this way, the whole or a part of his demand, and plaintiff explained that, while he received the money, it was paid, and he received it, to repay himself money which he had advanced to take up demands against Robert Campbell, any balance thereof to be credited on his account. Mr. Barkworth was the first witness for the plaintiff. Upon his cross-examination the check for the $1,000 was offered in evidence by the defendant, and Mr. Barkworth was interrogated concerning it and what was done with the money. It is clear that Mr. Barkworth was not precluded by anything in the pleadings from showing in what manner the money was disbursed by him and by whose authority it was so disbursed; was not precluded from showing that his demand had not been paid. An issue of fact was presented — a less doubtful one when all of the testimony is read than it appears from appellant’s brief to be — and this issue was submitted to the jury. The exceptions taken and the errors assigned relate, as has been stated, to this issue. A detailed examination of them here would profit no one. The testimony for plaintiff, and I find no rulings thereon which were prejudicially erroneous, tended to prove the services rendered and disbursements made within the terms of the written guaranty given by defendant, and negatived the fact alleged by defendant that the $1,000 was paid pursuant to the guaranty or the obligation which it created, except that a small balance thereof was, in fact, so applied. I see no reason for thinking that the statute of frauds is applicable upon either the plaintiff’s or defendant’s theory of the real issue. Certainly it is not applicable to the issue made by the testimony. In a short charge, which appears to me to be subject to no criticism, the court submitted the actual issue made by the testimony to the jury.
The judgment is affirmed.
McAlvay, C. J., and Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred. Brooke, J., did not sit. | [
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Martin Ch. J.:
Were the property which is the subject of this assessment actually occupied by the corporation of St. Ann’s church, as it is now occupied by these complainants, it would, I think, be most clearly exempt from taxation. It was conveyed by the Governor and Judges of the territory of Michigan to such corporation, to the end, as the bill alleges, that they might from time to time, as they should deem necessary, erect thereupon any buildings or improvements suitable for ecclesiastical, literary or benevolent purposes; and we find it occupied by these complainants for the purpose of keeping and maintaining an orphan asylum and gratuitous school for poor and destitute children. But the corporation of St. Ann’s having leased it, without rent, to the Bishop of Detroit, and his successors, for the term of nine hundred and ninety-nine years, limiting its use to the objects of the grant, and the Bishop of Detroit having leased it for the nominal rent of one dollar, to the complainants, for the special benevolent purpose for which they occupy it, for the period of thirty years, requiring them to pay all taxes which may be lawfully assessed against it, it is claimed to be subject to taxation. This claim is founded upon subdivision 8 of § 786 of the Compiled Laws, which provides that “the personal property of all library, benevolent, charitable and scientific institutions incorporated within this State, and such real estate belonging to such institutions as shall actually be occupied by them for the purposes for which they were incorporated” shall be exempt from taxation. By subdivision 9 of § 3 of Compiled Laws (p. 88), it is enacted that the word land, or lands, and the words real estate “shall be construed to include land, tenements and real estate, and all rights thereto and interests therein /” and this is one of the several rules prescribed by the Legislature for the construction of statutes — {Comp. L. §788). Now this tax was required by law to be assessed against these complainants as occupants; and the bill alleges that the defendant O’Neil threatens to make the money from their personal property, which is primarily liable for its j)ayment— not until no personal property could be found, or that found proved insufficient, could the land be sold. It is true that the land being the subject of taxation, a lien existed upon it for the amount of the taxes, and it became liable to sale upon their default to make payment. Should such sale be made, their leasehold estate would be destroyed if the land were purchased by a stranger. It does not alter the case that the land is, itself, sold in such case, and not the term of the lessee; for the jeopardy to the landlord makes that of the tenant no less, but far greater; and the term is involved in the sale, for it is a condemnation of all titles and interests. The statute must not be read without a recognition of the fact that the land having an owner of the fee, may be possessed by one having ing an interest less than the fee, which is denominated “real estate.” The “real estate” is exempted; and this exemption, although attached to the land, is a personal privilege; for we can not conceive of exemption except as a personal benefit, or a subject of exemption without ownership. Such personal privilege may be upon an estate less than the fee; for the statute does not limit it to the greater estate, but extends it to such as belongs to such incorporations as are designed to be protected by it, and occupied for the purposes of the incorporation. The benefit is not bestowed upon the land, but upon persons; the land, or real estate therein, being the subject, the person the object.
The tax was therefore assessed upon the “real estate” of these complainants.
But were it assessed against the land, and not against an owner or occupant, I think it would still be exempt under the circumstances of this case, and a true construction of the statute.
In giving a construction to a statute, it is the duty of a court to consider its policy, and to give it such an interpretion as may appear best calculated to advance its •object, thereby effectuating the design of the Legislature: Allen v. Parish, 3 Ohio 198 — and this even though such construction may seem contrary to its letter: — 3 Cow. 89. Now the policy of this exemption act is too evident to require discussion. It was to relieve these incorporations from the burthen of taxation upon property used for the purposes of their organization, but not such as might be occupied for other purposes, or made the source of revenue; and such is the principle of the case of The Young Men's Society v. Defroit, 3 Mich 172. The essential idea or requirement is, that the property shall be actually occupied for some one of the purposes the statute was designed to foster and protect. The words “ belonging to ” do not necessarily and imperiously imply ownership, unless upon the severest technical construction; for property belongs to its possessor so long as he has the exclusive right to its possession. The words “ by them ” are not, nor were they intended to be, the emphatic words which should limit and restrict the beneficial operation of the statute; for the design was to exempt such property as should be actually occupied for the purposes designed to be fostered. I am not required to say that property leased to a benevolent society for the use for which it was incorporated is, in all cases, exempt, although I believe it is so, so far as protection to the society is involved; but I Ifave no doubt that such is the case where property is dedicated by government to a charitable or benevolent use, as in the present case, and the lessees are restricted to use it according to the purposes of such dedication. Houses of religious worship are exempt from taxation: were the same language employed in exempting them as is used in this subdivision of § *786, and a religious society should gratuitously lease its building to another religious society to be used for the purpose of worship, I doubt whether any one would hold that thereby the property became subject to taxation,
A statute is not to be construed according to technical rules unless such be the apparent meaning of the Legislature; and many eases not expressly named may be comprehended within the equity of a statute, the letter of which may be enlarged or restricted according to the true intent of the makers of the law: — See Whitney v. Whitney, 14 Mass. 88; Holbrook v. Holbrook, 1 Pick. 248; Somerset v. Dighton, 12 Mass. 382; 3 Mass. 17, 21, 296, and 523; 8 Mass. 418, 423; 6 Mass. 380; 7 Mass. 558; 15 Mass. 205; 1 Mo. 147; 2 Har. & J. 167; 2 Pet. 662; 15 Johns. 358; 1 Pet. 64; 18 Wend. 126; 2 Pick. 29; 5 Pick. 449. Now had the corporation of St. Ann’s Church actually or by its servants and employees occupied this property, for the purpose of keeping and maintaining thereon an orphan asylum and gratuitous school for poor and destitute children, it would be exempt, and no humane man would desire that it should be the subject of taxation. How is the case changed by the fact that the Sisters of Charity occupy it for such benevolent purposes, the property having been from the first dedicated to such or the like uses ? The whole object of the grant, and the whole subject of the exemption, is contained in their enterprise. Had the church employed them as servants or agents to conduct this benevolent enterprise, the property would not have been assessable; and can it be held, upon any equitable or legal principle, that because a gratuitous lease was given by the church, instead of gratuitous service offered by the Sisters, the benefit of the exemption is taken from the property? It is true that the complainants are required, by the terms of the lease, to pay all taxes and assessments legally imposed upon the premises; but this precautionary provision in the lease does not change the law, nor impose liability where exemption existed before. If we hold the property subject to taxation under the facts of this case, we insist upon the severest construction of language, in opposition, as I think, to the true meaning of the letter,, and to the equity and spirit of the law.
I think the decree should be affirmed.
Manning J. concurred.
Campbell J.:
The bill in this case is filed by the complainants to prevent the collection of taxes upon real estate occupied by them in Detroit, on the ground that it is exempt from taxation under section 786, vol. 1 Compiled Laws, which exempts “the personal property of all library, benevolent, charitable and scientific institutions, incorporated within this state, and such real estate belonging to such institutions as shall actually be occupied by them for the purposes for which they were incorporated.’’
The bill states, in substance, that the title is in St. Ann’s church, -to which it was granted to the end that they might, from time to time as they should deem necessary, erect thereupon any buildings or improvements suitable for ecclesiastical, literary or benevolent purposes. That in 1834, St. Ann’s church leased the premises in question to Frederick Rese, Bishop of Detroit, and his successors in office for 999 years, without rent, for similar purposes. That Peter Paul Lefevre, who is alleged to be the successor in office of Bishop Rese, leased the premises to complainants for thirty years next ensuing January 1, 1869, for the nominal rent of one dollar, and on condition that the lessees should pay all taxes and assessments legally imposed upon said premises during said lease. The lease is alleged to have been made for the purpose of keeping and maintaining on the premises, durihg the term, an orphan asylum and gratuitous school for poor and destitute children, and the bill alleges the premises to have been occupied for those purposes. The city has levied the ordinary tax upon the premises.
The case has been argued assuming the validity of the lease and other requisites of title and corporate character, and the only question presented is whether property so held is exempt.
A society incorporated under the laws of this state for the purposes set forth in the hill is, I think, within the meaning of the statute, a benevolent or charitable institution. And I shall only consider therefore whether the property taxed comes within the exemption. By the terms of the law all property not expressly exempted therefrom is subject to taxation. And any exemption claimed must come plainly within the meaning of the statute.
It is certainly not designed by this law to exempt from taxation all real estate owned by the benevolent or other institution referred to, whether the proceeds of the property or the property itself may or may not be used for the benevolent or literary purposes mentioned.
Every corporation misapplying any of its funds, or diverting them to uses not contemplated in its charter, is guilty of a violation of law. It is always to be presumed that all the corporate funds will be applied to proper corporate uses. Had the Legislature designed to exempt all property the proceeds or income of which should be thus applied, or all property to whomsoever belonging actually used for benevolent purposes, such exemption would probably have been competent. But they saw fit to limit the exemption of real estate to such as shall actually belong to, and at the same time be actually occupied by the institution, for the purposes' for which it was incorporated. The occupation here referred to is not constructive, but actual; and must be by the institution, and for its corporate purposes.
The language is so plain that no explanation can make it plainer. The statute was construed in the case of The Detroit Young Men’s Society v. City of Defroit, 3 Mich. 172. Similar statutes have been construed repeatedly in England as well as in this country; — Purviss v. Traill, 3 Exch. 344; Clarendon v. St. James, 10 C. B. 806; Regina v. Missionary Society, 10 Q. B. 884; Cincinnati College v. The State, 19 Ohio 110.
As the premises in question are occupied by complainants, any exemption must depend on their ownership within the meaning of the statute. The only ownership claimed is a thirty years’ lease. And we are required to determine whether this leasehold interest entitles the property to be regarded as belonging to complainants.
If a leasehold were taxable as real estate under the statute, apart from the fee, then the phrase might fairly apply. But our tax laws do not contemplate or permit any such separation.
Not only does the statute declare that real estate shall, for the purpose of taxation, be construed to include all lands within the state, and all buildings and fixtures thereon, except in cases otherwise expressly provided by law, — Comp, L. § 783, but in assessing it the statute requires it to be described either as a government subdivision, a lot or block on some plat, or by its boundaries (§804). The taxes assessed are a lien upon the real estate (§820). When taxes are returned, payment may be made on any pa/reel of lands returned, or any undivided share thereof (§ 851). The land itself is sold, and if less than the whole parcel is bid off, it is to be a specific portion from the north side (§866). The deed is to be a deed of the land therein described., and is evidence, prima facie, of title 'in the purchaser (§871). No one ever imagined that a tax sale could be made of a mere leasehold, or that it could be taxed as_ real estate. This tax is on the land, and includes the whole estate. It is very clear that this does not belong to the complainants. And the statute can not be made, by any construction, to exempt what does not belong to them, and furnishes no means of reaching any such case. The fact that the lessees pay but a nominal rent beyond taxes can make no difference, for the statute does not exempt property on any such ground, and the case of complainants would be the same if they paid rent.
The policy of embracing such cases is not for the courts to determine. Till the statute provide for them we must apply the law as we find it.
I think the injunction should not have been granted, and that the decree should be reversed, and the bill dismissed,
Christiancy J. concurred.
The court being thus equally divided, the decree of the court below was affirmed. | [
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Cheistiancy J. :
The first objection taken by the plaintiffs in error is» that it was incompetent to change the venue from the county of Genesee, in which the premises are situated, to the county of Saginaw; and, therefore, that the Circuit Court of Saginaw county had no jurisdiction to try the cause.
The action of ejectment being local at common law, this objection must prevail, unless the statute has given the power to change the venue. But we think the statute has given that power. Section two of chapter 103 Revised Statutes of 1846, prescribes the place of trial of all issues of fact in the Circuit Courts. The first clause of the section is in these words: “ Issues of fact joined in such actions shall be tried in the proper county as follows:” and though the words, “joined in such actions,” might seem at first view to confine the provisions to issues joined in a Probate Court — these being the only issues previously mentioned in section one — yet the various actions mentioned in the three subdivisions which immediately follow, are all actions of which the Probate Court had no jurisdiction, and issues in which could not be joined in that court. The provisions of the section can not, therefore, 'be confined to issues of fact joined in the Probate Court, without making the whole section repugnant and nugatory. This section was amended in 1847 (L. of 1847, p. 172) by striking out the words, “joined in such actions.” But this amendment, though proper enough, was not necessary ^ and, we think, had no other effect than to express in words what the section, without the amendment, must have been construedjto mean. With or without the amendment, we think the issues mentioned in the first line of this section (two) include all the issues of fact joined in any of the classes of cases mentioned in the three following subdivisions of the section. The entire section reads as follows :•
“Issues of fact joined in such actions, shall be tried in the proper county, as follows:
1. Actions for the recovery of any real estate, or for the recovery of possession of real estate, actions for trespass on land, and actions for (of) trespass on the case for injuries to real estate, shall be tried in the county where the subject of the action shall be situated.
2. Actions of trespass for injuries to the person, and actions on the case for injuries -to the person, or personal property, shall be tried in the county where the cause of action arose.
3. Actions of slander, for libels, and all other actions for* wrongs, and upon contracts, shall be tried in the county where one of the parties shall reside, at the time of commencing such action; unless the court shall deem it necessary for the convenience of parties and their witnesses, or for the purposes of a fair and impartial trial, to order any such issues to be tried in some other county; in which case the same shall be tried in the county so designated.”
It is urged that the clause beginning with the words “unless the court,” ¿so., and giving the power to order “issues to be tried in some other county,” being contained in the third subdivision, ’and in immediate juxtaposition with the class of actions in that subdivision, and separated from it only by a semicolon, should be construed as confined to the cases mentioned in that subdivision. Looking only to the grammatical arrangement, and the punctuation, there might be some plausible ground for this construction; but, on the other hand, the two preceding subdivisions are separated from the third only by a colon; so that even on the score of punctuation, the clause giving the power in question may be correctly enough construed as extending to, and qualifying, all the subdivisions. But punctuation alone is a very unsafe guide in construing an act of the Legislature; it is often much or entirely neglected by the person who drafts the provision, and generally unnoticed by the great body of the members; it depends much upon the enrolling clerk, and perhaps quite as much upon the printer. The object of the provision, when it can be clearly ascertained, furnishes a much safer guide. Here the object is plainly expressed on the face of the statute; it was “for the convenience of parties or their witnesses” or “for the purposes of a fair and impartial trial.” Now the action of ejectment, and all the other actions enumerated in the first and second subdivisions, are as clearly within this object, as those mentioned in the third; and the provision was quite as necessary for the former as for the latter. The words* of the provision strongly confirm this view: the power given is “to order cmy such issues to be tried in some other county.” Now the word, “issues,” is not found in the first, second or third subdivisions, but only in the general provision at the beginning of the section, where, as already shown, it extends to all issues of fact joined in the Circuit Courts-: and the words, “any such issues,” we think have the same extent of application.
Act No. 94 of the laws of 1853, amending the second section of chap. 103 Rev. Stat. of 1846, did not, we think, in any respect, alter or modify the power given in that section to change the venue. The whole scope and object of the amendatory act was to strike out subdivision two of the original section, so as to leave the actions therein mentioned to fall within the next subdivision. In making the amendment it was necessary, under the Constitution, to re-enact the section as amended,’’ and in doing this it is very obvious, the person who drew the amendatory act copied directly from the Revision of 1846, as there printed,, and thus overlooked the amendment of 1847. But, as we have already shown, the amendment of 1847 did not alter the effect of the original section.
. Section ten of the act of 1851, “to define the limits jurisdiction and power of the Circuit Courts” (Laws of 1851, p. 245) also gave full power, upon good cause shown, “to change the venue in any case pending therein,” and made full provision for carrying the power into effect. It is unnecessary to determine whether this act, as a full and later provision on the same subject, had the effect to repeal the provision in the Revised Statutes giving the power to change the venue. If it had this effect, it also of itself gave full power to do the same thing: if it had not this effect, then the provision in the Revised Statutes giving 'the same power remained in full force. Nor, for a like reason, is it necessary to determine what effect the law of 1853 had upon the law of 1851. If it did not repeal or modify the law of 1851, then the law of 1851 continued to authorize the change of venue; if it did repeal it, it also made a sufficient provision for the exercise of the same power.
The act of 1855 (Laws of 1855, p. 273) cited on the argument, we think has no bearing on the question. It provides only for the transfer of causes from one circuit to another, where the Judge of the circuit in which the case is pending is incompetent, for special reasons therein mentioned, to hear the case, or even properly to hear the motion for its transfer. It has a different scope and object from all the other provisions above referred to.
The second ground of error, urged upon the argument, is the rejection of the deposition of Okemos and four other witnesses, taken conditionally before the suit was brought, and, as is claimed, in pursuance of the “act relating to depositions taken within this State,” approved' March 29, 1848: Comp. L. 1171 et seq.
These depositions were objected to and rejected in the court below upon three distinct grounds :
1st. That the depositions were taken through an interpreter.
2nd. That they were in the narrative style, without having the questions and answers written out, and
3d. That no notice was served on the plaintiffs (below) as required by the statute; the notice served having been verified by C. P. Avery’s affidavit and served by Brown.
The first and second objections we think are untenable. We see no reason to doubt the power of the commissioner to swear an interpreter under this statute; especially when (as in this case) the notice declares the intention of swearing interpreters, and gives their names.
As to the taking of the testimony in the narrative form, the act expressly provides (§8) that the examination may be made upon verbal or written interrogatories. As no interrogatories appear with the depositions, we are to infer that the witnesses were examined orally; and though it might be more satisfactory if the questions were stated at length in the depositions, we see nothing in the statute which, by fair construction, would make it imperative? especially when not requested by either party.
But the third objection is not so easily disposed of. The statute, after providing for a notice to be issued by a justice, commissioner or judge, further provides, in the alternative, that “ such notice may be given by such party, and served upon such adverse party without any such direct agency of such justice, commissioner or judge.” If the suit had been pending at the time this notice was given, and Mr. Avery had been the attorney of record, the notice, so far as this point is involved, might have been regarded as given by the party within the meaning of the statute. The defendants below would then have been bound by his acts, and the record would have been conclusive of his authority, which the defendants could not have repudiated. But, no suit having been commenced, there was no attorney of record: and should a notice thus signed be held good, this difficulty might arise) if the testimony was found unfavorable to the party, he might deny the authority of the attorney, and exclude the evidence, or put the other party to the proof of the authority, a fact which it might be difficult for him to show. For myself, I am inclined to look upon the affidavit of Avery attached to the notice, as it regards the question of authority, as entirely extra judicial.
But it is unnecessary to decide upon the validity of the notice upon this ground, as we are all of the opinion that the depositions were properly rejected upon another ground. This statute authorizes testimony to be taken in the absence of a party to be affected by it, if he fail to be present in compliance with a notice verified and served in the particular mode specified by the statute. No latí, tude of interpretation can therefore be indulged, which might dispense with even the slightest formality touching the notice, its verification or service, which the Legislature have seen fit to impose. And, before testimony taken in the absence of a party can be received against him, it is incumbent upon the courts to see that he was required to attend, and has been put in default by the proper notice, verified and served in all respects" as the statute requires.
Admitting an original notice to have been properly signed, there was no proof of any proper service upon the plaintiffs below.
The third section, after having provided for a notice to be issued by a justice, commissioner or judge, uses the following language: “ or such, notice may he given by such party, and served upon such adverse party, without any such direct agency of such justice, commissioner or judge.”
The plaintiffs in error contend that this is a full and complete provision in itself, for the service of the notice, when given by the party; and this view would be correct if there were no subsequent provision prescribing the manner of service 'of this species of notice. He insists there is no such subsequent provision: that sections four and five refer only to the notice issued by the officer, and not to that given by the party. Section four is in these words: “The said notice may be served on the agent or attorney of the adverse party, and shall have the same effect as if served upon the party himself.”
We can not entertain a doubt that this section, following as it does directly after the provision for both kinds of notice, applies equally to both. The reason and the language apply equally to both. Section five, immediately following, commences as follows. “The notice shall be served by delivering- an attested copy thereof to the person to be notified, or by leaving such .copy at his place of abode, if served by an officer authorized to serve a subpoena, and when served by the party, by delivering a true copy of such notice verified by the affidavit of the party serving the same.” We think this was equally intended to apply to the service of both kinds of notice. But it is contended that service by an officer of “an attested copy” is only appropriate to the notice issued by the commissioner, &c., which is in the natfire of process, and that such a provision is inaj)plicable to a notice issued only by the party. It may have been more customary to provide this kind of service for papers officially issued. But it is equally competent and, for aught we can see, equally proper, to provide this as one mode of service of a notice issued by the party, as well as when issued by an officer, under a statute which gives the same validity and effect to both forms of notice. The question here turns principally upon the mode of verifying the copy served. If not served by an officer it is verified by the affidavit of the party serving it: if served by an officer, it is attested by him under his oath -of office: in each case it has the sanction of an oath.
The counsel for the plaintiffs in error insists that an examination of the previous statutes of this State, and the statute of Massachusetts, portions from both of which seem to have been copied into the act of 1848, will tend to sustain the construction for which he contends: we have ’carefully examined the statutes referred to, but can draw no such inference. The Revision of 1838, so far as it has any bearing, we think sustains the view we have adopted: and, as to the other statutes referred to, it does not follow that the same language, found in a new connection in the act of 1848, must have the same effect, and the like construction, as in the act from which it was taken, We think in the present statute the effect of the language has been modified, and intentionally' modified, by the new order and context in which it has been placed.
But these former statutes can have little, if any, bearing, for another reason. Where there is no ambiguity there is no room for construction. The statute of 1848, upon this point, is entirely clear and unambiguous upon its face.
The reference to former statutes could only serve to create, by construction, an ambiguity where none existed before, for the purpose of justifying a construction which should remove the ambiguity. ■
The fifth section, then, required the copy to be “verified by the affidavit of the party serving the same;” and we think the word party is here used in the same sense as in the previous section three, and, when the service is not made by an officer, the copy must be verified by the affidavit of the same party who gives the notice — the party to the suit, or, at least, by his attorney of record in a pending suit, otherwise the statute .would have used the terms “ affidavit of the person serving the same.’’
We think, therefore, the depositions were properly rejected.
The next question arises upon the decision of the Judge overruling the following questions, propounded by the defendants to the plaintiffs’ witness,;Noc-chic-a-me, on his cross-examination, viz: “Was this Owashamegan any relation to Tonedogane ?” and, “ What band did her mother belong to when she was born?’’
To understand the nature of the question here presented, it is necessary to look to the nature of the main fact in issue, and the manner in which it was presented upon the evidence.
The plaintiffs claimed title under a reservation, in the nature of a grant, made by the treaty of Saginaw of September 24, 1819, with the Chippewa nation of Indians, to a person described in the treaty by the name of Taucumegoqua, and to her heirs. It was necessary for the plaintiffs to show, not only that the person under whom they claimed bore the name of Taucumegoqua, but to-identify her, as the person intended as the grantee designated by that name in the treaty. The treaty simply gives her name, without any other description by which she can be identified, except that ¡she, with ten other reservees mentioned by name in the same clause, are described as “Indians by descent.” The testimony of Noc-chic-a-me, as well as that of other witnesses on the part of the plaintiffs, on the direct examination tended to show both the existence of the Taucumegoqua under whom the plaintiffs claimed, and her identity with the person described by that name in the treaty; still this was not conclusive. Among Indians, as well as whites, ¡there may be several persons known by the same name, and the same person may be known by different names. The latter fact appears upon this treaty as to “the Crow” and‘both, by comparing the treaty with the plaintiffs’ evidence in this case.
Under a treaty like this, which gives no designation of the person but the name, the question of identity is frequently one of peculiar difficulty, and has led to much litigation. This is not the first case of the kind under this very treaty. See Stockton v. Williams, 1 Doug. Mich, 546. The difficulty is inherent in the nature of the case, •and its causes numerous and obvious: the difficulty of expressing the uncouth] sounds of Indian names by the English alphabet, the inability of the Indian to read or write, and, therefore, to detect or correct an error committed by others, the informal and often hasty manner in which these treaties are made, the uncertainties and imperfections incident to the proceedings of a council carried on through an interpreter, and the facilities offered after the lapse of many years and the death of most of the actors, for the manufacture of fictitious cases, by the mere substitution or fabrication of the name of some obscure Indian or half" breed long since dead. These considerations seem to have been appreciated by the counsel for the plaintiffs below; and several discrepancies appeared between the names of reservees mentioned in the treaty and those stated by the plaintiffs’ witnesses. The witnesses mentioned Owanonaketoqua and Ojibwok, as reservees who got land at the treaty, while neither name appears in the treaty itself, the nearest approach to them in the treaty being An-nake-to-qua and Checkbalk, which, judging from the names only, would hardly be suspected of identity. The plaintiffs, therefore, were not content toj leave their case to stand solely upon the direct evidence tending to show the name and identity of the person under whom they claimed; but they went further, and enquired, not only as to this particular reservee, but generally as to the other reservees under the treaty; and they elicit the names and family connections of several others, and their relationship to the chiefs. Noe-chic-a-me, on his direct examination, was asked; generally who were the reservees tinder the treaty. This question and the other enquiries just alluded to were pertinent on two grounds : 1st. They tended to elicit the fact, whether there was any other person among the reservees, known by the name of Taucumegoqua, or who might • have been intended as the reservee, and to preclude, as far as possible, the idea of any mistake as to her being the person intended. 2d. The questions tended to show the extent of the witness’s knowledge of the persons and transactions about which he testified, and to test the accuracy of his memory. By showing his familiarity with the persons and events alluded to, and a clearness of memory, his credit with the jury would be increased; while that credit would be diminished, if his knowledge appeared limited and his memory confused.
By this course of inquiry, the plaintiffs had made the identity of all the reservees a question in some degree pertinent to the case, if indeed it were not so before; and opened this whole field of inquiry to cross-examination by the defendants; for, if the plaintiffs could inquire into the names and family connections of the various reservees, for the purpose of strengthening the inference of identity, and to gain a higher degree of credit for their witness, by showing extensive familiarity with, and a clear memory of, the facts, the defendants must be allowed to cross-examine him at large upon the same general sub^ jccts, for the purpose of weakening- the inference from his direct evidence, and to diminish the credit otherwise due to his testimony, by exposing the imperfection of his knowledge and the confusion of his memory.
The witness Noc-chic-a-me, on his cross - examination had already stated among other things, that he “knew some half-breeds at the treaty trying to get land.” “X saw (he says) some half-breeds that came from towards Detroit, women; they came desiring- lands: O-wash-a-me gan, a half-breed Indian woman, got land at the treaty; I don’t know how much or where situated; perhaps it might be at Muscatawing (Flint); she was a grown person.” This answer is followed up by the counsel for the defense by the questions now under discussion, which were separately put and severally overruled, viz: “ was this 0-wash-a-me-g'an any relation to Tonedogane?” and “what band did her mother belong to when she was born?”
These questions were severally overruled on the single objection, and on the naked ground, that they were irrelevant to the subject matter of the direct examination. This was not a mere postponement of the cross-examination to a subsequent stage of the cause — a matter always within the sound discretion of the court, and upon which error could not be assigned — but an absolute and final’denial of the right to cross-examine the witness, at all, on the matters to which the questions related. This, therefore, is a question of law, and not of discretion, and the ruling of the court is subject to review on error.
In this ruling, the court below doubtless intended to conform to the rule laid down by the majority of the court in People v. Horton, 4 Mich. 67. But, admitting that rule to be correct, I am strongly inclined to the opinion that it would not sustain the ruling of the court in this case. The direct examination of the witness, by the plaintiffs, extended to all the individual reservees under the treaty. He was asked “to whom were individual reservations made ?” It is true he does not give, in answer to this question, the names of all mentioned in the treaty; but he mentions eight as reservees, without saying whether these were all; but this does not alter the extent of the question. But notwithstanding the case of People v. Horton, I think the questions proposed were admissible both upon principle and authority, whether the examination in chief had extended to all the grantees, or not. The plaintiffs had certainly inquired into the names and relationship of several of the other reservees: and, as already shown, this course of inquiry, though not absolutely obligatory upon the plaintiffs, was pertinent and admissible, as tending to strengthen the evidence of identity, and showing the extent of the witness’s knowledge, and the clearness of his memory. And, as the witness, on his cross-examination, had already stated that O-wash-a-me-gan got land at the treaty, it was just as competent for the defendants to pursue the same inquiry as to her, for the pur pose of weakening, if they could, the inference of identity which would result from his evidence in chief, and to diminish the credit of the witness, by exposing ignorance, mistake or defective memory. It was especially important to pursue this inquiry in reference to O-wash-a-me-gan, for another reason. The witness had stated that she got land at the treaty : and no such name appears in the treaty, nor any name bearing the most distant resemblance to it. The witness, therefore, must have been mistaken, as to the fact of her getting land, or she must have been known and described in the treaty by some other name; and this name might as probably turn out to be Taucumegoqua as any other of the names mentioned in the treaty. Until she was fully identified, therefore, it was impossible to know to whom the witness referred by that name, or whether he was mistaken in the fact to which he had testified.
But the right of the defendants to enter uj>on the proposed course of cross-examination rests upon a much broader principle, and' would, I think, have been clear, though the examination in chief had not extended to any other reservee except Taucumegoqua.
As the conclusion at which I have arrived upon this point is directly in conflict with the rule adopted by the Court in People v. Horton, I propose to examine the question at some length, as it relates to the present case: first, upon purely logical principles, without reference to any authority; and secondly, to examine the authorities upon which that decision purports~Lto] rest, and to show that those authorities 'do not warrant the rule as applied in that case.
When a witness is called and examined by a party, the law and the oath impose the obligation to state the whole truth — all the facts within the knowledge of the witness bearing upon the question in controversy upon which his testimony is sought. The witness may be cognizant of some facts which, considered without reference to others equally within his knowledge, would tend strongly to prove the issue in favor of the party calling him; while, at the same time, there may be other facts equally within his knowledge, which, considered without reference to the former, would have an opposite tendency, or which, considered in connection with them, would explain away or modify the former, and give a very different effect to the whole. Should a witness in such a case disclose only that class of facts which operated in favor of the party calling him, his testimony, though true in the detail, would be false in the aggregate, and have all the effect of intentional falsehood; and, if aware of the nature of the controversy in which he is called to testify, he would be guilty of perjury, as much as if he had wilfully falsified the facts stated by him; and this whether he were cross-examined or not. It is the disclosure of the facts known to the witness (bearing upon the issue), as a whole, which’ the law seeks. And a direct examination which should be perfectly fair,(would, in such a case, disclose both classes of facts, and present the witness’s knowledge as a whole-But the party calling the witness may so adroitly direct the examination in chief as to disclose only, that class of facts which tend to establish the issue in his favor, and to conceal those which would destroy or modify their effect. And, as courts (from their ignorance of the extent of the witness’s knowledge, and of the ¡Dlan arranged by the party calling him) has no means of enforcing the perfect fairness of a direct examination, the law has given to the opposite party the right to cross-examine the witness, for the purpose, among others, of bringing out the facts thus concealed, which tend to explain away or modify the effect of those stated on the direct examination, or to rebut the inference which would otherwise result from them. Such facts, thus elicited on cross-examination, constitute, in the nature of things, a part, and a necessary part of those stated on the direct examination; and must be considered and treated as a part of the testimony in chief, the effect of which they go to weaken or modify: and, hence, all such facts thus elicited, in connection with those disclosed by the examination in chief, must be treated as testimony given on the part of the- party calling the witness.
But these remarks must be confined to such facts on cross - examination as go to controvert so much of the plaintiffs’ case as the direct testimony tended to prove. The party against Avhom the witness is called has no right (and I think should not have, under any rule) on cross-examination to go into an independent or affirmative case on his own part, which does not controvert the prima facie case which the direct testimony tended to prove, but seeks to meet it by matter substantially in the nature of confession and avoidance; as to the facts constituting such a defense, the onus of proof is on the defendant.
Nor should the Avitness be cross-examined generally upon the merits, when the direct examination has been confined to mere preliminary or formal proof, such as the execution of a paper, in which case the cross - examination should be confined to such preliminary matter, as (in the instance just put) to facts bearing upon the execution, Avhich the testimony in chief tended to prove; for the contents of the paper can not logically be considered a part of the witness’s testimony. When proved, it is the paper which speaks, and not the witness.
It is further essential to the developement of the true logical idea of cross - examination to observe, that it is the tendency of the direct examination which determines the subject of it, as a test of cross - examination: for example, it is that essential or ultimate fact in the plaintiff’s case which the direct examination tended to prove, which determines, the logical limits of the cross-examination, and not merely the particular minor facts and circumstances tending to the proof of that fact. As the plaintiff is at liberty to. adduce any number of these particular or secondary facts, however disconnected with each other, so that they tend to the proof of the essential resultant fact which he is bound to establish, so must the defendant be equally entitled, on cross - examination, to elicit any number of such particular facts, as may tend to disprove that resultant fact, or to weaken the tendency, in its favor, of the particular facts stated on the direct examination.
And where two or more main facts are essential to the plaintiff’s prima facie case, such as the title of the. plaintiff, and conversion by defendant, in trover, and the direct examination has been confined to matters tending only to the proof of one of these main facts, the defendant should not be allowed¡ to cross-examine as to the other; as this would have no relation to the evidence in chief, and could not therefore, in any logical sense, be denominated a cross - examination. Such, I think, are the' purely logical principles of a cross-examination.
To apply these principles to the case before us. The main question in controversy was the identity of the person under whom the plaintiffs claimed, with the person described in the treaty by the name of Taucumegoqua. The burden of proving this identity rested with the plaintiffs throughout the cause. This fact was necessary to constitute a prima facie case for the plaintiffs, and, without it, the defendants needed no defense. It was a fact, then, which belonged to the plaintiffs’, not the defendants’ case. The defendants were not bound to show title under any* reservee: they had a right, if they chose, to rest their case upon a want of title in the plaintiffs. The direct testimony of this witness had been introduced for the purpose of proving this identity, and such was its tendency. The fact of identity (involving the question who was intended by a certain name in the treaty) though the real question in controversy, can hardly be said to be susceptible of direct proof: it was one to be inferred from other facts to be proved. The witness, on his direct examination, had testified to several distinct matters of fact, none of which was the real fact in controversy, nor, of itself, directly any part of the issue. But these particular facts had been called out by the plaintiffs for the purpose of establishing the main fact in controversy, as an inference resulting from them. The defendants, therefore, had just as clear a right, on cross-examination, to call forth any other particular facts, within the knowledge of the witness, which 'would tend to weaken or destroy that inference, as they could have to show, by his cross - examination, that he had falsified or mistaken any particular fact stated by him. The effect of either course would alike operate to weaken or destroy the premises from which the inference of identity resulted. And, though the proposed cross - examination called for particular facts not ■called for on the direct examination, yet they were facts which related to the same subject matter, and bore exclusively upon the same main fact,. identity, to which the whole examination in chief was directed: facts, the omission to state which, if within his knowledge, gave to his direct testimony the injurious effect of false testimony; and whether the facts were within his knowledge could only be known by the inquiry.
From the peculiar nature of the question, any thing which tended to show that some other person was the reservee intended by the treaty, would also tend to show that the person under whom the plaintiff's claimed was not. It is therefore a mistake to suppose that this could only be shown for the purpose of proving title in the defendants. It would 'defeat the title of the plaintiffs; and this was all that the defendants were required to do. The witness, Noc-chic-a-me, may have known the fact that there was another person present at the treaty by the name of Taucumegoqua. He may have known that Owashamegan was known by that name, or that she was the same person known as Madame Coutant, and shown by other witnesses to be known by the name of Taucumegoqua'; any of which facts would have had a tendency to weaken the inference of identity to be drawn from his testimony in chief. And I can not doubt the right off the defendants to have called out either of these facts by a direct question on cross - examination; and yet the direct question would have been no more relevant to the direct examination, than the indirect questions having the same object in view; and I do not think the indirect form in which the questions were put, at all objectionable on cross-, examination; as this is often the only way in which a cross-examination can be rendered effectual. (See remarks of Mr., Evans cited infra), I can not well see how the Court could fail to discover the object of the questions. It must have been obvious that the defense could only meet the inference of identity arising from the direct testimony,’in one of two ways: either by showing that the particular facts, stated on the examination in chiqf, were untrue, or that, notwithstanding their truth, there was another person by the same name who was the grantee intended. One of these ways was as competent as the "other. The course of the examination had clearly shown that the identity of the person under whom the plaintiffs claimed was not admitted; and the form of the questions overruled, showed clearly enough, that the object of the cross-examination was to elicit evidence tending to weaken the inference of identity in one or the other of the modes mentioned; and it would not seem to have required much foresight to discover that the questions looked to contesting the identity, by showing another person present at the treaty, by the same name, for whom the reservation was intended. This clearly appeared to be the object, when the defendants introduced their own testimony. But it is insisted on the part of the defendants in error that, though the questions might have been relevant in fact, their relevancy did not clearly appear at the time the questions were put, and that, to enable the defendants below to assign error for their rejection, they were bound to show to the court how they proposed to render them relevant. On the direct examination, it is true, if the relevancy of a proposed inquiry does not aj>pear, the court have a right to call on the counsel to state the object of the proposed testimony, and the manner in which it is to be made relevant: and the court may, in the exercise of its discretion, require a particular statement of the substance of the evidence, in connection with which the proposed inquiry is to be rendered pertinent, and if refused, may reject the evidence. Whether on a direct examination the court have a right to reject the evidence without calling for such statement, it is unnecessary to decide. But on a cross-examination the rule as to relevancy is not so strict, and it would be a very unsafe rule which should allow the court to reject evidence which may in any manner be rendered material, because the party proposing it has not volunteered to precede it with a statement of its precise object, and of the other facts, in connection with which it is to be rendered material. The court may, doubtless, in its discretion, when a question is asked on cross - examination which he thinks can not be rendered pertinent, require an intimation of its object, and reject the evidence if not given. But this is a discretion which should be very sparingly exercised, and nothing further than a bare intimation should generally be required. For, in many cases, to state the precise object of a cross-examination would be to defeat it.
The observations of Mr. Evans on this point (2 Evans Pothier on Ob., 2 Am. Ed. 205) are entirely pertinent.
“The benefits of a cross-examination are sometimes defeated by the interposition of the court to require an explanation of the motive and object of the questions proposed, or to pronounce a judgment upon their immateriality. Whereas experience frequently shows that it is only by an indirect and • apparently irrelevant inquiry that a witness can be brought to divulge the truth which he had prepared himself to conceal: the' explanation of the motives and tendency of the question furnishes the witness with a caution that may wholly defeat the object of it, which might have been successfully attained if the gradual progress from immateriality to materiality was withheld from his observation.” I think, therefore, that where a question on cross- examination has been overruled by the court on the ground of irrelevancy (as in this case) without asking from counsel any intimation whatever of its object, it is error, if it appear from the whole record that the inquiry could in any manner have been made relevant. But its relevancy in this case sufficiently appeared I think, at the time it was offered, without any further explanation than was already furnished by the issue and the previous course of examination.
The logical rule governing the relevancy of cross - examination, as I have endeavored to explain it upon principle, is, I am inclined to think, substantially the same as that intended to be recognized by the authorities cited by the court in People v. Horton: and I can not resist the conviction that that rule was misapprehended by the court. The rule relied upon, it is true, implies that a defendant, on cross-examination of a plaintiff’s witness, is not at liberty to inquire into facts which properly constitute matter of defense: but I think the court failed to discriminate between what constitutes a part of the plaintiff’s case, and what a part of the defendant’s defense. Where the defense assumes substantially the form of confession and avoidance, and, without controverting the facts stated on the direct examination tending to show a prima facie case on the part of the plaintiff, seeks to avoid their effect by a new and independent state of facts, the defendant can not be allowed to enter into such a defense on cross-examination; because it would not tend to contradict or modify any fact stated on the direct examination ; and the facts constituting such a defense, tending, as they would, to a different point from those stated on the direct examination, would have no logical connection with them, and could not tend to weaken, explain or modify, his testimony in chief. But when a defendant, on cross-examination of a plaintiff’s witness, enters upon an inquiry calculated only to contradict or weaken facts or inferences from facts stated on the direct examination, and which were necessary to support the plaintiff’s prima facie case, he can not, I think, properly be said to enter upon his defense, within the meaning of this rule. The purpose of such an inquiry is to show that the plaintiff has not made a case which calls for any defense; and the testimony sought thus to be elicited relates to the plaintiff’s rather than to the defendant’s case. To apply the rule in question to such a case, and refuse to allow a defendant to call out a fact on cross - examination tending to weaken the prima facie case which the direct examination tended to prove, necessarily involves the principle, that a witness must be considered the witness of the party in whose favor he may happen to know any fact which would tend to modify or explain other facts stated on his direct examination. If this consideration is to determine whose witness he is, why would he not, thus far, be equally the witness of the party against whom he is called, if he should happen to state such modifying fact in his evidence in chief, where it properly belongs?
It may, indeed, be questionable whether the facts sought to be drawn out on the cross-examination, in People v. Horton, were relevant to the issue, or admissible at all, in any stage of the case; and the case may therefore have been correctly decided, though the reason given for the decision did not apply to that case. But if the evidence was relevant to the issue, or admissible at all, it was admissible to rebut the inference of malice which the evidence in chief tended to prove. The onus of proving malice, as a necessary ingredient of the crime of murder, was upon the People. Any inquiry therefore which related to that fact related, I think, to the People’s case, rather than to that of the defendant, within the sense of the rule relied upon by the court.
The formula in which the rule is expressed, as stated by Mr. Greenleaf, and cited by the court, seems to have originated with Judge Story, in Phila. and Trenton R. R. Co. v. Stimpson, 14 Pet. 547; and whatever may be the true interpretation of the language, it is not a little remarkable, 1st. that he cites no authorities, and 2nd, that no such question was involved in the case (as will clearly appear by the report). All that was said upon it was extra judicial. And, although a mere dictum from so eminent a judge is always worthy of consideration, yet this case does not give the rule any judicial authority. The Judge expressly waives the point, and decides the case on another ground. The language in which the rule is expressed is deficient in clearness, and liable to mislead as to the real extent of its meaning, and there is little in the case in which it was used to aid in its interpretation. The rule, as stated by Judge Story, is, “that a party has no right to cross-examine any witness except as to facts and circumstances connected with the matter stated in his direct examination. If he wishes to examine him as to other matters, he must do so by making the witness his own, and calling him in the subsequent progress of the cause.’
Now if by “facts and circumstances connected with the matters stated on Ms direct examination,” he intended any facts and circumstances which tend to controvert, explain or modify the facts stated on the direct examination, or which bear upon the same main fact which the direct testimony tended to prove — and I think this must have been his meaning, as facts thus related are, when used in evidence, logically connected — then he only expressed in other words the rule which I have endeavored to show is founded in purely logical principles. But if he intended any more intimate or limited connection, and to confine it to a direct connection between the particular facts elicited, without reference to their bearing upon the same main fact, I can see no satisfactory pi-inciple upon which the rule can rest. If the connection of facts of which he speaks be understood in the extended sense suggested, he had at least some very respectable authority for its support; but if in the narrow sense which seems to have been understood in People v. Horton, then I am utterly at a loss to discover upon what authority he based the assertion, that it was “ a principle now well established;” and this assertion is made generally, with nothing to indicate that it was intended to be confined to the Federal courts: while Mr. Greenleaf, in citing the rule, only states it as “ now considered by the Supreme Court of the United States to be well established ;” and the only authority he cites from a Federal court, besides that of Judge Story above quoted, is Harrison v. Rowan, 3 Wash. 588. This case is so imperfectly reported that it is difficult to determine the extent of the rule established by it. What was the nature of the “new matter” to which it refers does not appear, nor what was the extent of the direct examination. But the case does not decide that the witness can not be interrogated on cross-examination as to new matter; it merely denies the right to pursue such cross-examination by leading questions. It clearly admits the right to inquire into new matter on cross - examina tion, provided it be done without leading questions; and thus conflicts with that part of Judge Story’s rule which compels the party to make the witness his own. The other authorities cited by Mr. Greenleaf in support of the rule (and also by the court in People v. Horton), are Ellmaker v. Bulkley, 16 S. & R. 77, Floyd v. Bovard, 6 W. & S. 75. The former of these cases was debt on an award, and the question arose in this way: I quote from the report: “ The plaintiff having, on the trial in the court below, proceeded with his proof to establish the existence and loss of the award, and evidence to supply that loss by the examination of the referees, the defendant’s counsel offered to cross-examine the witnesses on the subject matter of this suit, and in avoidance of the award, before he had opened his defense. This being opposed by the plaintiff’s counsel, the court was of the opinion the defendant was not entitled to cross-examine the witnesses before he had opened his defense; to which the counsel for the defendant excepted.” This decision was sustained by the court above; and this is all that appears in the case bearing upon the present question. It is manifest, I think, that' the question was viewed as presenting itself substantially in the same form as if the attempt had been made to enter upon a like cross-examination of a witness who had merely proved the execution of the award, the proof already offered tending to show only what the written instrument would have shown, had that been introduced and proved; in which case the award would have spoken for itself: and the defense sought to be entered upon on cross-examination seems to have consisted, in part, at least, of matter of avoidance..
In Floyd v. Bovard, no such question as that we are now discussing was at all involved; and all that was said upon it is out of the case. After the plaintiff had examined the witness, and rested, the defendant called the witness, and proceeded to examine him as his own (as I understand the case) to other facts material to the defense; to which course exception seems to have been taken by the plaintiff, for what reason I am as much at a loss to'perceive as the court were; and the court held, as all courts would hold, that the defendant had this right: this is all the court really decides upon this point. It is true that Oh. J. Gribson makes use of the language quoted in People v. Horton, but that was not and could not be the ground of the decision. It is true, nevertheless, that even a passing remark of one of the ablest judges whose-labors have adorned our judicial annals, is not to be treated as undeserving of respect; and some of his objections to the broad English rule are doubtless worthy of consideration. But he also uses language in the same case (not quoted in People v. Horton), which I think admits the distinction I have endeavored to establish in reference to what constitutes the plaintiff’s and what the defendant’s case, and the right of the defendant, on cross - examination, to draw out any facts calculated to weaken so much of the plaintiff’s case as the direct testimony of the witness tended to prove. He says, “ When the testimony of a witness is required to establish a fact which is part of the plaintiff’s case, and also another fact which is part of the defense, it is a dictate of justice that no advantage be given to either party in the manner of eliciting it?” Now by “ a fact which is a part of the plaintiff’s case,” is here intended, as I think the context shows, a fact involved in the issue, and the onus of proving which rests upon the plaintiff; or a substantial fact which is, in itself,\ essential to the support of the plaintiff’s case; not merely those auxiliary or secondary facts which operate only as so many circumstances tending to the proof of that fact; these are merely accidental, not necessarily involved in the controversy; since it is entirely immaterial by what particular facts and circumstances this essential fact is proved, so that they have the effect to prove it. Thus understood, the principle announced by Judge Gibson constitutes the basis of the rule I have endeavored to explain, as the logical rule, in its application to the present case.
The foregoing are all the authorities cited by Mr. Green-leaf, and relied upon in People v. Horton, for the rule in question. But we have been referred to several later cases, decided since the publication of Mr. Greenleaf’s work, which it is claimed sustain the rule as applied in People v. Horton.
Austin v. State, 14 Ark. 555 (decided in 1854) is cited: In this case no question of this kind was involved. The witness sought to be cross-examined was sworn in chief, but was not interrogated or put upon the stand by the State. The prisoner claimed the right to cross - examine him upon the whole case, and relied upon the English rule. The court refused this. In sustaining this refusal, it is true, the court quote from Greenleaf the rule given in the language of Judge Story, and remark that, upon the examination of authorities, they think the decided preponderance in American courts is in favor of the rule. If they mean simply to say that the preponderance of American authority is against a cross-examination in such a case, I concur with them; and this was the only sense in which the remark could have any application to the case.
In Cokely v. State, 4 Clarke (Iowa) 480, this question was not involved; the fact sought to be elicited on cross-examination was entirely irrelevant to the issue in any stage of the case; and though the court cite the rule from Green-leaf, the decision is not put upon that ground.
In Donelly v. State, 2 N. J. 494, the witness for the People had been examined only upon preliminary matters, to identify the deceased party mentioned in the indictment, and to prove certain maps of the premises. Neither he nor any other witness had yet been examined by the People touching the merits (see Attorney General's Statement, p. 488), and the defendant, in that stage of the case, proposed to go into the merits on cross - examination; which- the court held he was not entitled to do. The court do not profess to base their decision on the rule in question.
There is however one case, Landsberger v. Gorham, 5 Cal. 450, in which the court evidently took the same narrow view of the rule which was taken in People v. Horton, without, however, giving any reason, or citing any authority except the dictum of Judge Story, already mentioned; and the court held that, where an attorney or his agent, called, to prove a sale of personal property, had, on his direct examination, testified only to the delivery of the property from the supposed vendor to the supposed vendee, he could not be called upon to state the conversation between the parties accompanying the delivery and giving character to the act;because, first, he was not bound to betray professional confidence (he having claimed his privilege), and second, because the proposed cross-examination was not relevant to the examination in chief. The first reason given is not calculated to increase our confidence in the correctness of the second; but such a case was, perhaps, needed as a practical illustration of the startling consequences which legitimately result from the rule thus narrowly construed. This is the only case I have been able to find which supports the rule as applied in People v. Horton.
Such are the authorities in support of the rule, so far as they have been referred to by counsel, and so far as. any have fallen under my own examination. And, except as to the cross-examination of a witness who has not been examined at all in chief, or only as to preliminary or formal proof not going to the merits, the rule, so far as it differs from the English rule, is supported by the authority of comparatively few oases, whatever may be its true interpretation; and with these qualifications, the majority of American cases I think still favor substantially the English rule. See the cases cited by the counsel for the plaintiff in error. And notwithstanding it is said in People v. Horton, to have been “the established rule in this State,” I must protest my entire ignorance of the prior existence of the rule as it was applied in that case; though in some of the circuits the principle of the rule expressed in the language of Judge Story had been adopted.
While the rule may be salutary in its operation, when not extended beyond the principle on which it rests; I do not deem it necessary here to decide between the respective merits of that, and the common law or English rule, with the modifications of the latter which I have-already suggested; since the rule as applied in People v. Horton is equally a violation of both.
But there are many objections to the rule as applied' in People v. Horton. It impairs the efficiency of cross-examination as a means of detecting error and exposing falsehood, and renders it comparatively easy for a corrupt party, by the aid of corrupt witnesses, to fabricate fictitious cases without the risk of impeachment, compelling the opposite party to make the witness his own, as to facts which might tend to modify the effect of his evidence in chief; thus precluding the power of impeachment.
It tends to break up into detached and widely separated fragments, the state of facts within the knowledge of the witness, bearing upon the same main point, and which would be much better understood if stated as one connected whole. The testimony of other, and perhaps many other, witnesses intervening between the parts of the witness’s testimony, the jury are more likely to confound the testimony of one witness with that of another; the bearing of the different parts of the witness’s testimony upon each other, and any discrepancies which may exist are not so easily discovered, and, consequently, the credit of the witness is not so correctly estimated.
But there is a practical difficulty in the application of this rule (as understood in People v. Horton) inherent in the rule itself, and which can only be avoided by getting rid of the rule, as there applied. It adopts, as the tost of the relevancy of a cross - examination, the bearing of the particular facts sought to be elicited by it, upon the particular facts brought out on the direct examination, instead of the main fact or facts which these particular facts tend to prove; and, as these particular facts are often very numerous, and their number and character incapable of restriction, and the question of relevancy may arise upon any two of them, and as the degrees of relation between them may be as numerous and varied as the facts themselves, it is easy to see that questions of this kind must be constantly arising, till the case bristles with points of relevancy. The rule, therefore, leads to almost infinite embarrassment; and it must, and often does, require more time to dispose of these questions of relevancy, under this rule thus understood, than would otherwise be required for the trial of the cause. On the other hand, if the question of relevancy is to be determined with reference to the main or essential fact, which the particular facts stated on the direct examination tended to prove, and by considerations connected with the burden of proof, questions of relevancy would be much less frequent, and comparatively easy of solution.
Several exceptions were taken to the ruling of the court excluding hearsay and evidence of reputation and common report, or general understanding, after the treaty, among the Indians and other persons acquainted with the parties, going to show who was the Taucumegoqua intended by the treaty.
If this were a new, or could properly be considered an open question, it would be one of much difficulty. Considered as a question of principle, without reference to authority, the reasons for and against its admission are so nearly balanced that good legal minds might well arrive at different conclusions. For myself, I must admit that the reputation and general iinderstanding among the Indians and the whites who were at the treaty, and in constant intercourse with them for years after, and well acquainted with the parties — a reputation commencing immediately after the treaty, and continuing for many years after — would be quite as satisfactory to my own mind as the faint and uncertain impression of particular facts which, alone, would be likely to remain in the mind of a witness forty or even twenty years after the facts occurred, unless indeed the fact were one of peculiar interest to the witness himself. And I think the general fact of such reputation and common report, as to the person who got land at the treaty, would be less likely to be forgotten than any particular occurrence at the treaty, and quite as reliable as the feeble memory of such particular occurrence, after the lapse of so many years. Both species of evidence are exceedingly unsatisfactory.
But we do not feel at liberty to treat this as an open question. The same question, arising under the same treaty, substantially in all the forms here presented, was directly decided by the Supreme Court of this State in Stockton v. Williams, 1 Doug. Mich. 546. This decision has, for sixteen years, been recognized as the law governing the titles under this treaty, at least, and these must be quite numerous, many of which have doubtless been bought and sold on the faith of this decision. We are therefore compelled to recognize it as a rule of property which we are not at liberty to disturb. There was no error, therefore, in excluding the evidence in question.
But the counsel for plaintiffs in error insist that several of the questions in relation to this hearsay and reputation were admissible to show that Madame Coutant bore the Indian name of Taucumegoqua, though the evidence might not be admissible for any other purpose.
Doubtless the fact, that a person was known by a particular name, is one which may be proved by reputation; and this would be original, and the best evidence of the fact. But the questions proposed to the witnesses did not indicate the purpose of calling for reputation upon this point, but another and a different point, to show by reputation that the person in question got land at the treaty and this, we have seen, was inadmissible.
It is insisted that the act of Congress of June 15, 1844 (6 U. S. Stat. at Large, 913) authorizing a patent for the land to Joseph Campau, the patent itself, and the affidavits filed under the act, ought to have been admitted, as tending to show by hearsay or reputation, that Madame Coutant bore the name of Taucumegoqua. It was not claimed on the argument that the act or the patent could directly affect the rights of the parties, as a law or a patent; and they certainly could not, as the title passed by the treaty, and was beyond the control of Federal legislation. All questions affecting the title were judicial questions only. The act and all proceedings under it were res inter alios, and the proofs taken under it were not only ex parte, but extra judicial; and we can discover no ground on which the act, the proofs taken under it, or the patent, could be received as the mere declarations of third persons; they were no part of the res gestae, and were made long after the event upon which alone they could operate, if not also post litem motam.
It is also assigned as error that the court overruled the following question to Louis Campau, a witness for the defendants below: “During the seven years succeeding the treaty, did you ever hear any of Neome’s band claim that any reserves of land had been made at the treaty for any full blooded Indian children of that band ?”
We think this question was properly overruled. First, it does not appear from the bill of exceptions that for seven years, or even for a single year, after the treaty, the witness had any intercourse with these Indians, or was in a position which would make it probable that he would have heard it, had such claim been made. Secondly, the neglect of the other members of the tribe could not affect her right to the land, if she were the grantee. And thirdly, as she was but six years old at the treaty, and only thirteen at the termination of the seven years, she could hardly be affected by her own neglect, especially as she does not appear to have been engaged in agriculture,, or to have needed its use, more than the wild animals which roamed over it.
All the remaining assignments of error, which we shall notice, relate to the refusals of the court to charge as requested, and to the charge as given.
The substance of the several requests, stated in their logical order, was, First, that the terms “Indians by descent” used in this treaty as descriptive of all the individual reservees, must be interpreted to mean persons of mixed white and Indian blood, and not full blooded Indians; or if, as matter of law, the language of the treaty, when judicially construed, does not exclude Indians of the whole blood, then, Secondly, that from the language of the treaty, the policy of the government, as indicated by the Indian treaties and other public records of the time, the despatch of Gen. Cass, and the habits and modes of life of the Chippewa nation, including Neome’s band, a presumption arises that all the individual reservees, including Taucumegoqua, were, or were supposed to be, not full bloods, but half breeds, or persons of mixed white and Indian blood.
If the language of the treaty, in connection with all the matters above referred, to be such as to require, or to enable us, as matter of construction, to confine the terms “ Indians by descent” to half breeds, or persons of mixed blood, then no person of full Indian blood was competent to take under the treaty, and all the evidence on the part of the plaintiffs tending to show such a reservee, was irrelevant, and should have been excluded. But this does not appear to have been the view taken by the counsel of the defendants below, as they do not appear to Lave objected to the evidence. And upon a full and careful examination of this treaty, and many other Indian treaties, the instructions under which they were made, the despatches accompanying them; and other public records of the time, we are entirely satisfied that we are not authorized to construe the terms in question in the narrow sense claimed for them, and that, whether viewed as a question of law to be settled by construction, or as one of presumptive evidence, the court below was right in refusing the instruction asked.
We are hardly to expect strict technical accuracy and precision of language in these Indian treaties. In some of the treaties, as for example, that at the .Foot of the Ra)fids, September 29, 181Y, and that of St. Mary’s, October 2, 1818 (at both of which Gen. Cass was a commissioner) these terms are not used. In the former, the individual grantees are collectively described as “connected with the said Indians by blood or adoption,” the grants are made, as I infer from the treaty, some to Indians, some to whites, and some to those of mixed blood, but the latter are particularly described as half breeds, or their genealogy is, in part, given, showing them to be such; and the last remark is especially true of the treaty last referred to. In the treaty of St. Mary’s, October 6, 1818 (Gen. Cass one of the commissioners) the grantees are collectively described as “ Miami Indians by birth,” and the list begins with French Christian and surnames; it is then intermixed with single Indian names without any additions, and closes with five who are severally and particularly described as “half bloods.” In the treaty of Chicago, August 29, 1821 (Cass and Sibley, commissioners) the individual reservees are described as “being all Indians by descent,” several of them with English and several with French names have their “descent” given, and appear to be half breeds or mixed bloods; while several are described in a manner appropriate only to Indians of the whole blood; and doubtless were such; as (among others) “Menaw^ che, a Pattiwattima woman.” See also treaty of St. Joseph, 20th September, 1828.
In view of these treaties we are entirely satisfied that the terms “Indians by descent” have often been used, not only as descriptive of mixed Indian blood, but also (where the persons named were of both kinds) as collectively applicable both to those of the full blood and those of mixed white and Indian blood: and the terms are in themselves applicable to both, though more strictly to those of the whole blood.
Quite as little aid can be derived in favor of the presumption (claimed by the plaintiffs in error) from the policy of the Government, as indicated by the instructions given to commissioners, and other public records of the time. All that can be safely affirmed upon this point is, that in the Indian treaties throughout the Northwest, as a general rule, the policy of the Government seems to have been to avoid, as far as possible, all such special reservations or grants of land to individuals, whether of the full blood of either, or mixed blood of both races: and that they were assented to only as a means of obtaining the consent of the Indians to the cession of their possessory rights in the territory, which the Government sought to acquire. See especially letter, Mr. Calhoun to Lewis Cass and Duncan McArthur, May 11, 1818, and letter of C. Vandeventer to same, September 18, 1818: American State Papers, Indian Affairs, vol. 2, pp. 175, 176.
As the terms descriptive of the grantees were extensive enough to include both full bloods and mixed bloods, and it does not conclusively appear from the treaty whether both were included or only one, if there be two claimants of the same name mentioned in the treaty, one of the whole and one of the mixed blood, they equally come within the words of the treaty; and it is but the common case of a latent ambiguity created by facts outside of the in strument, and therefore explainable by extrinsic evidence, and to be determined from all the evidence in the case.
We are therefore of opinion that the court below was clearly right in instructing the jury that it was entirely a question of fact for them to determine, who was the reservee intended by the treaty. But it is somewhat questionable whether this view was consistently carried out in the subsequent portion of the charge. The Constitution of Michigan, which might perhaps be properly enough referred to as an illustration of the sense in which the terms, “Indians by descent,” have been sometimes used, could with little propriety be relied upon as affixing “ a legal meaning’’’’ to the same terms as used in this treaty thirty years before; nor could it properly be left to the jury to find whether such was their “ legal meaningThe legal meaning, so far as the terms might have any fixed or definite legal meaning, was a question for the court. And if he intended to say that, by their legal meaning the terms could only apply to cases where both whole and mixed bloods were included, it was equivalent to instructing the jury that there must be among the reservees under this treaty persons of both descriptions, in order to satisfy the words of the treaty; and, if understood in this sense, the charge might materially influence the determination of the main question in the case (who was the reservee) as a question of fact.
But, though the charge in this respect was somewhat ambiguous, I am inclined to' think the terms “ legal meaning,” were not intended to be used by the court in their technical sense, and that, taking the charge as a whole, he did not intend to say that there must be among the reservees under this treaty persons both of the whole and of the mixed blood: though the latter portion of the charge is -not entirely clear, and was liable to be misapprehended. Still, if this were the only error complained of, I should not be disposed to disturb the verdict. But for the error in overruling the questions put to Noc-chic-a-me on cross-examination, the judgment, I think, should be reversed, and a new trial ordered.
There are several assignments of error upon the record besides those already noticed, but as the couusel for the plaintiffs in error declined to argue them, we have not thought it our duty to consider them.
Manning J.:
I can not agree with my brother Christiancy, that the court erred in refusing to let defendants’ counsel ask Nocchic-a-me, on his cross-examination, whether Owashamegon was related to Tonedagone. On his direct examination the witness was not asked any question as to either of those persons, nor did he so much as mention either of them. He was asked to whom individual reservations wore made at the treaty; and in his answer mentioned Tawcumegoqua and a number of others, but made no mention of Owashamegan. But on his cross-examination, he stated Owashamegan got land at the treaty; and he was then asked the question objected to and ruled out by the court, viz: was this Owashamegan any relation to Tonedogane? By the treaty six hundred and forty acres of land were reserved to one Tawcumegoqua, which the plaintiffs claimed under an Indian of that name; and Noc-chic-a-me was examined by them to show that the Tawcumegoqua under whom they claimed was the Tawcumegoqua mentioned in the. treaty. At that stage of the trial, without any statement of the use to be made of it in the further progress of the cause, the court could not see what the fact inquired about had to do with the case, or with any fact stated by the witness in his direct testimony. But the plaintiffs in error, who were defendants in the court below, insist before us that it was competent for them to put the question, as they claim the land through Owashamegan, a half blood Indian, known by the name of Tau cumegoqua, on the ground that the only issue between the parties was as to which of these two persons was the Taucumegoqua mentioned in the treaty; and that whatever tended to prove their case, in the same degree tended to disprove the plaintiffs’ case. How did the court know defendants claimed' the land under Owashamegan, and that she was known by the name of Taucumegoqua as well as Owashamegan? If the court was bound to sit and hear such questions put and answered without seeing or being informed by counsel of any possible object to be gained thereby, because the witness had stated on his cross-examination, that Owashamegan got land at the treaty, it is not easy to see why like questions might not have been put to the witness regarding every person to whom a reservation was made; and why the relationship existing between each of those persons and every other Indian belonging to the tribe might not have been inquired into. Waiving this objection, which seems deserving some little consideration, and supposing the object had been stated to the court at the time, it does not appear to me that the question was one defendants had a right to ask on cross - examination. The advantages of a cross over a direct examination consist in asking leading questions, and in the right to impeach a witness after cross-examining him, if his testimony makes against you. The plaintiffs’ case consisted in proving that the Taucumegoqua under whom they claimed was the person intended by that name in the treaty; the defendants’ defense in proving that Owashamegan, alias Taucumegoqua, was that person. Such being the case, if the right contended for exists, it gives the defendants advantages not contemplated by the rules regulating cross-examinations. It would not only enable them to ask leading questions of plaintiffs’ witness to prove their defense, but to get rid of the facts elicited by themselves, if distasteful, by impeaching the witness. Plaintiffs had proved by the witness certain facts tending to show that the Tawcumegoqua under whom they claimed was the person intended by the treaty. Defendants did not propose by the questions they put, according to their own theory, to disprove any one of those facts, or to modify or change them in any respect whatever, but to prove other facts (consistent with the truth of every statement made by the witness on his direct examination) tending to prove Owashamegan was the person intended by the treaty. The object in permitting leading questions on cross-examination I understand to be to elicit all the light the witness can throw on the facts testified to by him on his direct examination, and not to permit either party to prove his case by his adversary’s witness in a different mode from what he would be required to do had he called the witness on the stand himself. I am not now speaking of questions put on cross - examination to test the witness’s memory or credibility. They are always in the discretion of the court. The reason generally given for the difference between a direct and cross-examination is, that the witness, is supposed to be biased in favor of the party calling him. There would be something in this if it was optional with a party to select Ms witnesses from among his friends. But this he can not do. He is under the necessity of calling on the stand such persons, whether friends or foes, as know the facts he is required to prove. Witnesses may be and sometimes are biased in favor of the party calling' on them to testify; but it proceeds from some cause other than the fact that they are called on by one party and not by the other. And it is by no means so common that any general rule for the examination of all witnesses' can legitimately be based upon it. I am therefore of opinion the reason of the rule allowing leading questions on cross-examination is the one I have stated, and that the rule is to be confined to questions calculated to elicit further light on facts that the witness has testified to on his direct examination. After full consideration, and after viewing the question in all its different bearings, I am satisfied with the rule laid down by this court in the ease of The People v. Horton. It is said the rule at times is difficult of application. Not more so, I think, than all rules; and when there is any difficulty, it may always be obviated by permitting the question to be put and answered, as any error in this direction would not lead to a reversal of the judgment, unless, perhaps, in a very clear case of abuse. On the other questions in the case, I agree with my brother Ohristiancy. I think the judgment should be affirmed. | [
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] |
Manning J.:
The bill is in aid of an execution at law, and not a judgment creditor’s bill under the statute, after an execution returned unsatisfied in whole or in part. It states that the premises levied on were purchased and paid for by Thomas J. Hoskins, the judgment debtor, and that a conveyance was taken by him in the name of his wife, Martha L. Hoskins, to keep them from his creditors; and that Mrs. Hoskins, afterwards, with a like intent conveyed them to Henning, who the bill charges had notice of the intended fraud.
Previous to the Revised Statutes of 1846, if one purchased real estate and paid for it, and took a conveyance in the name of another, in equity there was a resulting trust in favor of the person paying the purchase money, unless the purchase was intended as a gift or advancement to the person to whom the conveyance was made. But this equitable interest does not appear ever to have been subject to levy and sale on execution under the laws of Michigan. This question was not made by counsel or decided by the chancellor in Cutter v. Griswold, Wal. Ch. 437. The only question considered and decided by the Chancellor in that case was, that the conveyance to the son could not be sustained against creditors, as a gift or advancement, as the pecuniary circumstances of the father were such, at the time of the conveyance, as to preclude his making such gift or advancement. It seems to have been taken for granted in that case, by counsel and Court, that a resulting trust could be sold on execution. To that extent, but not as an adjudication, the case is evidence of the then existing law. But such evidence at most is very slight, and deserving of little consideration, when restricted to a solitary case.
But whatever may have been the law at that time is of no importance in the present controversy, as such trusts were abolished by the Revised Statutes of 1846. By them it is provided that “ When a grant for a valuable consideration shall be made to one person, and the consideration therefor shall be paid by another, no use or trust shall result in favor of the person by whom such payment shall be made; but the title shall vest in the person named as the alienee in such conveyance, subject only to the provisions of the next section§ 2637 of Comp. L. The next section is as follows: “Every such conveyance shall be presumed fraudulent, as against the creditors of the person paying the consideration; and when a fraudulent intent is not disproved, a trust shall result in favor of such creditors, to the extent that may be necessary to satisfy their just demands§ 2638.
The trust here reserved in favor of creditors can only be reached by a bill filed by a judgment creditor after an execution has been taken out and returned, on or after the return day, unsatisfied in whole or in part. Or in case of the death of the debtor, and the insolvency of his estate, by a bill framed on like principles. It is not subject to levy and sale on execution: Brewster v. Power, 10 Paige, 562; Garfield v. Hatmaker, 15 N. Y. 475.
The decree of the Circuit Court must be reversed, and the complainant’s bill be dismissed with costs.
Martin Ch. J. and Campbell J. concurred.
Christiancy J. was absent. | [
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] |
Campbell J.:
Complainant filed her bill to restrain defendants from using more than a certain definite number of square inches under a given head, out of a water power on the River Raisin in the city of Adrian, and also to restrain them from using that portion except for specific purposes. The-case was put at issue by replication to answers, and the bill was dismissed for want of equity. It appears that Addison J. Comstock, the original owner of the premises held by both parties, built a saw-mill upon the premises now owned by complainant, which was furnished, with power by a dam, which is near defendant’s land, and either touches it or approaches it quite closely. In 1886, he-conveyed to Rufus and George W. Merrick the lot now claimed by defendants, “together with fifty square inches, of water, to be drawn under nine feet head and fall, or an equivalent at any point above; said water to he used hy said party of the second part for the purposes only of a cabinet shop and the business connected therewith, and also furnace operations.” The saw-mill was subsequently burned down while A. J. Comstock owned it, and was rebuilt in 1884 by complainant. Previous to 1851 all of the premises and water power, except the lot of defendants and the water privilege conveyed to Rufus and George W. Merrick, had become vested, one-half in Rufus Merrick, and one-half in Joshua Mandeville, the husband of complainant, from whom ahe derives title. In that year, articles of agreement were made between them for the purpose of the partition of the land and premises so held in common, and it was agreed that Merrick should take a parcel below the dam, and which included all or most all of the structure of the dam. It does not appear by any averment at what time George W. Merrick sold out his interest in the defendant’s lot and privilege, but it seems to have been assumed and we are probably correct in assuming that when these agreements were made Rufus Merrick was the sole owner of that property which is termed his “ Factory ” in the articles of agreement. By these, Merrick agreed to convey to Mandeville, with the land which fell to him, “one-half the mill privilege situate on said premises, excepting and reserving so much of said water power and privilege as has heretofore been deeded to George and Rufus Merrick,” &o. Certain rights of way were reserved to the several parties, and Mandeville was bound, whenever he should build on and improve the water power, to bear his share of the repairs which Merrick was to make so long as he was the only one using the water. Merrick was to have the right to draw water from the pond to his “factory before mentioned, or any machinery in place thereof,” by a flume as then located, and Mandeville was to be at liberty, without liability for repairs to the dam, to use the water for works he had below the ■dam whenever Merrick should not want to use the water in the pond for his factory or other machinery thereat. It was expressly provided that the partition agreements were not to affect any “exclusive rights to the water in said pond or any portion thereof,” theretofore acquired by either party. 'In September, 1853, deeds were exchanged, and Mandeville, in quit claiming his undivided half of the parcel to Merrick, expressly reserved the interest in the water power, which was to remain as deeded to him previously. The deeds embodied most of the essential parts of the agreements. *
We think it entirely clear that, under this arrangement, Mandeville was to have acquired and did acquire the whole water power except so much as belonged to Merrick’s factory.
It would naturally have gone with the land, unless the ■contrary should clearly appear. The original mill right was on that portion, and the dam had been raised, when all the property was in the same hands, to supply it. Both articles and deeds expressly provide for Mandeville rebuilding on the mill property, and using the power. And we are satisfied from a comparison of the instruments that their legal effect as well as their manifest design was to give Mandeville the whole mill privilege subject to the rights of the Merrick factory on defendants’ lot. Defendants do not set up or claim any interest except in that lot as conveyed by A. J. Comstock to the Merricks, and whatever rights they possess can not exceed those of Rufus Merrick.
The complainant has, we think, a clear right to confine defendants to the use of the fifty square inches mentioned in Comstock’s deed. The only question remaining is whether in the use of that quantity we should limit them to certain purposes.
It is plain that Comstock designed to confine the use of the fifty square inches to cabinet making and furnace purposes. Nor do we think he was precluded from making such a restriction in the way he selected. The grant of the easement (for it is nothing but an easement or servitude) was precisely analogous to a right of way for one class of purposes, as for example a footway. Whether the restriction was subsequently removed is a more serious question.
It is much- to be regretted that no evidence was taken in this case, for without it we can not arrive with any certainty a.t the solution of this inquiry. If, when this partition was made, Merrick’s factory had been, with Mandeville’s knowledge, changed from a furnace and cabinet factory to a woolen factory or any other kind of establishment, we are inclined to think the restrictions were removed. If such a change was made subsequently, it would depend very much on the facts whether a court of chancery should interfere by injunction, or leave the parties to their legal remedies. '
As the case is now presented, the bill claims that the change in machinery was made after the partition. The answer, which is responsive to the bill in this respect and not merely in avoidance — because, if the oaths were not. waived, a discovery on this point would have been required— alleges that it was made long before. The oath of the defendants being waived, the bill and answer are of equal validity on this fact, and neither outweighs the other. In the absence of evidence, this point remains open, and, complainant can have no relief which depends in any way on its settlement.
While, therefore, we think complainant entitled to an injunction against the use by the defendants of more than the quantity of water granted by A. J. Comstock to Rufua Merrick and George W. Merrick, we can not, as the case stands, interfere to confine that use or determine its restrictions. The decree therefore must be made without prejudice to the rights of either party in reference to the restriction claimed by complainant, and without reference to any future proceedings at law or in equity in regard to any rights relating to it.
The decree below must be reversed, with costs, and a decree entered perpetually enjoining defendants and all claiming under them from using more of the water of the pond than the amount granted by the deed to Rufus and George W. Merrick, leaving the question of restriction in such use open to determination at law or in equity as it may come in controversy hereafter.
The other Justices concurred. | [
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] |
ClIBISTIANCY J. :
The bill was filed to foreclose a mortgage given to secure three promissory notes, each for $3,333.33, all dated the 19th day of May, 185V, and payable severally on the first day June, 1858, 1859 and 1860.
Judgment had been obtained at law on the note first due, before the present bill was filed.
If the bill had distinctly claimed a decree for so much only, of the money secured by the mortgage, as was not included in the judgment, and complainant had, on the face of the bill, expressly waived or disclaimed all right ■or claim to the mortgage security, as to that part of the mortgage debt, he might probably have maintained his bill for the balance (the last two notes) without alleging that execution had been issued on the judgment, and returned unsatisfied in whole or in part; as it would then have appeared that the moneys demanded by the bill were no part of the moneys for which judgment at law had been •obtained: — Comp. L. §3569.
But the bill contains no such express waiver or disclaimer, nor any thing from which the inference of such an intent on the part of complainant can fairly be drawn.
The bill alleges that, “on the 24th day of November, 1858, complainant recovered a judgment against the said C, Edward Bresler, in the Circuit Court for said county, upon said note first due, and interest on all said notes up to the said 24th day of November, 1858, being the sum of $4371,90; but that no legal proceedings have ever been instituted upon the other two said notes, and which judgment has been nearly paid.”
That part of the bill which is evidently intended to state the amount claimed to be due on the mortgage •debt, is in the following language : “And your orator further shows unto the Court that there is now due and unpaid on said notes and mortgage the' sum of $7172.22, of which the sum of $3706.64 is actually due, being $3333.33 principal and interest on one of said notes to the first day of June, 1859, and that said ¡judgment remains u/npaid and unsatisfied in part." This is all we hear of the judgment or any payment upon it: it does not appear that any execution was ever issued upon it: and from the last clause above quoted (which I have given in italics) when taken with its context, it would appear complainant intended to claim by his bill any balance which might remain unpaid upon the judgment, or, at least, that he did not intend to waive the security of the mortgage for such balance.
In every other instance (not less than eight) where the mortgage debt, or sum claimed, is mentioned or referred to, it is spoken of as the amount due, or the amount to become due “upon said notes and indenture of mortgage” or “the money secured by the said notes and indenture of mortgage,” making no distinction between the first and subsequent notes. Finally, the bill prays a personal decree against the mortgagor, for “any balance that shall remain clue to complainant of the principal and interest of said notes and indenture of mortgage, if the sale of said mortgaged premises, as aforesaid, fail to produce sufficient to pay the whole of said mortgage debt.”
We think, therefore, it sufficiently appears on the face of the bill that “a judgment has been obtained in a suit at law” for “ a part of the moneys demanded by the bill,” and that the case falls directly within the prohibition of the Statute (Comp. D. §3569), and that, to warrant any proceeding on the bill, it should further have shown the return of an execution “unsatisfied in whole or in part.” See Dennis v. Hemingway, Wal. Ch. 387; Pattison v. Powers, 4 Paige, 550.
The decree of ’the Court below must therefore be reversed, with costs of this Court only, and the bill must be dismissed without prejudice.
The other Justices concurred. | [
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Manning J.:
This is an appeal from an order made under §4094 of Compiled Laws, punishing defendants for a contempt for violating an injunction, which the relator moves to have dismissed. The section is as follows:
“If an actual loss or injury has been produced to any 'party, by the misconduct alleged, the Court shall order a sufficient sum to be paid by the defendant to such party to indemnify him, and to satisfy his costs and expenses, instead of imposing a fine upon such defendant; and in such case, the payment and acceptance of such sum shall be an absolute bar to any action by such aggrieved party to recover damages for such injury or loss.”
The order is final, and can not be reviewed unless on an appeal from the order itself. It is more of a oivil than criminal nature; its principal object being to compel defendants to make compensation to the relator for the injury they have done him in violating the injunction, rather than to vindicate the dignity of the Court and the majesty of the laws. For these reasons wo are all of opinion the motion should be denied.
The other Justices concurred.' | [
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Campbell J.:
The action below was brought by the defendants in error against the plaintiff in error and Curtis Emerson, upon the common counts for goods sold and delivered. Evidence having been introduced to make out the plaintiffs’ ease, which had no tendency to show any but sole transactions of Yawkey, the plaintiffs, without any affidavit or statement showing inadvertence, introduced a stipulation signed by Curtis Emerson, authorizing them to discontinue as against him: and thereupon moved for leave to discontinue the suit as to Emerson, so as to leave it to proceed against Yawkey alone. This was resisted upon affidavits showing that, when the suit was commenced, Yawkey was a resident and citizen of the State of Illinois; and that, a previous suit having been commenced against him in the same court, for the same cause of action, he applied, under the act of Congress, to have it removed to the Circuit Court of the United States for the District of Michigan; when, upon the decision in his favor of the application, the plaintiffs discontinued before the order was entered.
The Circuit Court for Saginaw county, upon these showings, nevertheless permitted plaintiffs to discontinue as against Emerson, and directed the suit to proceed against Yawkey alone. Other questions arose upon the trial, but we do not propose to consider them.
The act of Congress, allowing a defendant who is a citizen of one State, sued in a Court of a State of which he is not a citizen, by those who are citizens of the latter State, to file a petition of removal when he enters his appearance, such removal when applied for in due form, and at that time, is a matter of right: — Brightly's Dig. 129. But the Statute will ' not allow this application to be postponed until other steps aré taken in the cause by the applicant. Neither can the cause be removed if there are other material defendants, who are citizens of the same State with plaintiffs; inasmuch as the jurisdiction arises under the United States Constitution, which restricts this class of cases in that respect. It will be apparent, therefore, that the effect cf the proceedings in the case before us, upon the hypothesis set up in defendant’s affidavits, was, by joining Emerson as a defendant to oust Yawkey of his right to remove the case to the United States. Court; when, by the discontinuance, a case is left which, but for that device, he would have been entitled of right to have transferred.
The Statutes provide that the Supreme Court may make rules “to effectually prevent the defeat or abatement of any civil suit ex contractu, for either any non-joinder or misjoinder of parties, tohere the same can be done consistently with justice — Comp. L. § 3890. Rule 11 of the Circuit Court rules was adopted to carry out this provision, and makes it lawful for the Circuit Courts to permit such discontinuance upon terms.
It was claimed by defendants in error, that the liberty to discontinue under that rule was, if not an absolute right of the party, at least in the uncontrolled discretion of the Court; and also that, if controllable, it must be by mandamus, and not by exception.
It is true that matters resting entirely in discretion •can not usually be reviewed. But it would be going to very dangerous lengths to hold that any legal right can ever rest in the discretion of a court, or that under the pretext of discretion there should be immunity for gross frauds and abuses. We have already decided in Winslow v. Herrick [ante p. 380], that this right of discontinuance is subject to limits; and that it is by no means universal The Statute furnishes the measure, when it permits it to be done when it “ can be done consistently with justice.” While this opens a wide door for discretion, and may perhaps allow courts to exercise it without appeal, in some cases where an appellate court might not have taken the same view, yet when it can, upon no fair hypothesis, or legal intendment, be reconciled with justice, it ceases to be discretionary, and becomes unlawful. Such excesses of power have never, we think, been regarded as beyond redress.
Had the discontinuance been allowed before trial, a mandamus would perhaps have been the most appropriate, if not the only remedy. But this point we do not decide at present.
When the proceeding takes place upon the trial, it can only come up by exceptions; and is as fairly within them as any other question arising on the hearing. In the case before us it had a controling influence on the reception of evidence and on the decision. And all that we can consider is, whether it went beyond a legal discretion fairly exercised.
Upon this there is no room for doubt. It appears afflrmatively from their own showing, that plaintiffs did not proceed to trial by inadvertance; for the stipulation of Emerson was dated several months before. The evidence introduced by them shows conclusively the impossibility of any mistake about parties. It is not the case of a partnership, where it is sometimes difficult to bring home the relation; neither is it analogous to those cases in which a party sued is found to be exempt, or incapacitated. The evidence shows affirmatively that there never could have been any proper reason for joining Emerson. There was, therefore, no foundation for any such action as was had. The affidavits introduced by the defendant, which were held by the Court below to present no valid objec-. tion to a discontinuance, explain why another defendant was joined with Yawkey.- The object was manifestly to, defeat his opportunity of removing the cause; and was a gross fraud perpetrated to deprive him of a legal right. If such crooked devices can be practiced in courts of law with impunity, the administration of justice will incur odium and distrust, and will deserve them.
We are not disposed to lay down any rigid rules concerning the extent of judicial discretion, in cases where a discontinuance is asked. The propriety, in each cause, depends very much upon facts apparent to the Court where the cause is pending; and the party seeking such a privilege can generally present his reasons, where they exist* in such a way as to raise no difficulty in the decision.
The present case is so plain that it calls for no such attempt to deduce general rules for legitimate applications from it.
As the discontinuance against Emerson has put him out of the case, and as a discontinuance against one, except when permitted by law, is a total discontinuance, we are compelled to reverse the judgment entirely. There is no basis for a new trial; and therefore we are not called upon to consider the other law points discussed.
The other Justices concurred. | [
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Christianoy J.:
If it were necessary to determine upon the correctness of the first and third points in the charge to the jury, we should probably be compelled to reverse the judgment; as we have failed to discover anything in the nature of the contract set '.forth in the declaration, or proved by the evidence, to render it objectionable on the ground of champerty, even though it might have been agreed, as intimated in the first point of the charge, that the plaintiff should ■pay his share of the expenses; upon which latter point, however, there appears to have been no evidence.
Nor do we see anything to justify the intimation of the court to the jury, that this contract was to be looked upon with less favor than any other contract. The law can not treat as immoral, or opposed to its just policy, any such reasonable effort to find property of an unwilling debtor to satisfy a debt which has been found due by the solemn adjudication of a competent court.
Nor are we satisfied that there was anything in the case to warrant the instruction contained in the third point, “that under the contract between the parties it was necessary for the plaintiff to demand one-third of the land before action could be brought.” Such, we think, was not the character of the contract declared upon, nor of that proved by the evidence of Mr. Bigelow, unless the land had been shown to have been received with the concurrence of the plaintiff. But the testimony of McHugh might have some tendency to show that the contract was of the character indicated by the charge, and that the land had been received with the plaintiff’s consent. In this view it was a fan- question for the jury to find from the evidence what was the true character of the contract, and whether the lands were received with the assent of the plaintiff; but we do not see how the court could assume to decide these disputed questions of fact as ^matter of law.
But however erroneous may have been the charge upon the points already noticed, the judgment can not be reversed if the judge was right in the second point of his charge: because, if there was no proof in the case on which the jury could estimate the plaintiff’s damages, then the plaintiff would not have been entitled to a verdict under any charge which the court could have rightfully given, and, therefore, the plaintiff could not have been injured by the errors complained of.
The correctness of this point in the charge must depend upon the nature of the rights and obligations created by the contract.
Taking the contract as shown by the testimony of Mr. Bigelow (which is the most favorable view of it for the plaintiff), we do not think it can be treated as a present transfer of any interest in the judgment to the plaintiff, nor as surrendering to him the control of its collection. The plaintiff still retained his own attorney in connection with the claim, and was, we think, still at liberty to receive or collect the whole amount from the Gilletts, or to for give the debt or discharge the judgment, provided he did so before any thing had been done under the contract by the plaintiff. But if he did so after the plaintiff had entered upon performance, by searching for property, and before he had succeeded in finding any, the plaintiff would be entitled to a reasonable compensation for his services. After the plaintiff had succeeded in finding property liable to levy, or at least after notice to the defendant or his agent, that such property had been found, the defendant would have no right to discharge the judgment without paying the plaintiff one-third the amount of it, if the property found was sufficient to satisfy the whole; or if the value of the property were less than the judgment, then one-third the value of the property so found; 'and such payment must have been made to the plaintiff in cash, though the defendant had seen fit to take property instead of money, unless such property was received by consent of the plaintiff. Such, we think, is the fair construction of the contract testified to by the plaintiff’s own witness.
But the plaintiff insists that after he had found any property, and a levy was made upon it, the defendant had no right to release the judgment without paying him one-third of the whole judgment, and this without reference to the value of the property found by plaintiff, or to the amount which defendant received as the consideration for discharging the judgment. If this be so, then the same consequence would have followed if the plaintiff had only succeeded in finding property to the value of one dollar, as if he had found an amount equal to the judgment. Nor is this all; for it would also follow that, after the plaintiff should have found a single dollar’s worth of property, the defendant could not have received the amount of the judgment from the judgment debtor, though tendered in cash, and given a release, without rendering himself liable to pay the plaintiff one-third of the whole amount of the judgment. We can not suppose this to have been the intent of the parties; and we can see nothing in the contract proved, when taken in connection with the subject matter, to warrant such a construction.
Under the construction of the contract which we have adopted, based upon the testimony most favorable to the plaintiff, he would have been entitled to recover in this action one-third of what the property found and levied upon should be shown to be worth. The testimony of McHugh might have some tendency to show that the plaintiff was only entitled to one-third of the land received by the defendant.
But there was no evidence which could entitle the plaintiff to a verdict under either aspect of the mase; the value of the property found and levied upon was not shown, and the land received by the defendant in satisfaction was admitted by the plaintiff to be of no value whatever.
If this had been a case in which the recovery of nominal damages would have entitled the plaintiff to costs, then, upon the hypothesis that a breach of the contract was sufficiently shown, he would have been entitled to nominal damages. But in actions of this particular character, nominal damages are only given for the purpose of carrying costs, and under our statute (Comp. L. ChAp. 174), such damages would not entitle the plaintiff to costs, and therefore should not be given.
The second point of the charge was therefore entirely correct, and no charge which the court could properly have given would have entitled the plaintiff to a verdict.
The judgment must therefore be affirmed.
The other Justices concurred. | [
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Manning J.:
The motion to quash the writ must be granted. No certiorari is given by the statute authorizing the proceedings of the commissioners, and at common law the writ is not one of right, but rests in the sound discretion of the court, to be allowed or not, as may best promote the ends of justice: — The People v. Supervisors of Allegany, 15 Wend. 198; 2 Hill, 9. The report of the commissioners was confirmed on the 26th September, 1859, and the writ was not sued out by the relators until the 23d August, 1860, eleven months thereafter. They appeared and opposed the confirmation of the report in the Circuit Court, and if they intended after failing there to bring the case to this Court for review, they should not in justice to the commissioners, the contractors and tax collectors, have lain by until the work was done and the taxes were levied and collected, as under the law and in the natural course of events they would be, and we are bound to suppose were, before appealing to this Court for relief. They shofild not by this apparent acquiescence on their part for so long a time in the action of the Circuit Court be permitted to reap, as its fruit," the benefit of what was afterwards done, without contributing towards the expense. Non constat that the contractors would have proceeded with the work, or that the taxes would have been levied and collected before the legality of the proceedings had been tested, had the writ been sued out within a reasonable time after the confirmation of the commissioner’s report. For these reasons, without intending to lay down any general rule further than what is necessary to dispose of the present motion, we think the writ was improvidently allowed, on account of the laches of the relator in not suing it out at an earlier day, and that it should for that cause now be quashed.
The statutory provisions requiring the writ to be issued within two years, and providing for its allowance out of court, were not intended to, and do not, take away the discretionary power of the court. The first is a limitation on its powers; and the other 'provision was only intended to do away with the necessity of a special application to the court for the writ, which would have to be pnade when the court was in session, and could be made at no other time.
In the case in Wendell, and in The State v. Anderson, 1 Cox, 318; the writ was quashed on the argument of the case, although it had been allowed by the court. The court being then in possession of the whole case, can more satisfactorily exercise its discretion than on the ex pa/rte statement made to procure the writ.
The writ must be quashed, with costs of the motion.
Martin Ch. J. and Christiancy J. concurred. | [
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Manning J.:
School District No. One of the township of Saginaw was organized in 1837. In 1857 the city of Saginaw was incorporated, the city limits being wholly within the school district, and comprising about one-fourth of the district. A mill tax for schools had been levied and collected in the district the preceding year, and paid over to the township treasurer, which the present action was brought to recover, by the defendant in error, who was plaintiff in the Court below.' After the incorporation of the city, the officers of the district assumed to act as officers of School District No. One of the city of Saginaw, for that part of the district comprised within the city limits, and to change the name of the district from School District No. One of the township of Saginaw, to School District No. One of the city of Saginaw. The city charter provides for the election (éf two school inspectors for the city, and also makes the Recorder of the city ex-officio a school inspector, thereby clearly indicating an intention to sever the city from School District No. One of the township of Saginaw; and such we think was its effect. We are also of opinion that while the charter took from the district a part of its territory, it in no other respect deprived it of any of its legal rights, which remained the same after as before. And that however equitable it may be that the city should have its proportion of the mill tax, or other property belonging to the district when the severance took place, we know of no law giving it to the city, or under which it can be claimed by the city as a legal right. Provision is made by statute for such cases when a school district is divided, or a part of one school district is set off to another, by a board of school inspectors, but the case does not come within the law. The question on the trial was one of law for -the Court to decide, and not of fact for the jury. The judgment must be reversed, with costs.
The other Justices concurred.
Lyman Hunger v. Horace Grinnell.
A verdict in ejectment that defendant is guilty of unlawfully withholding “the west three - fourths of the north-west fractional quarter of section 18, town 5 south and range 16 west, Cass county, Michigan, except twenty-five acres on the west half of said section, and three acres cut off by the road from the south-west corner of said section,11 is so uncertain in the description it gives that no judgment can be rendered upon it.
Submitted and Decided January 17th. | [
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Manning J.:
The appeal in this case, which was submitted on briefs, must be dismissed for want of jurisdiction, as the decree appealed from is not a final decree. It consists, in part, of a reference to a Circuit Court Commissioner to take an account of what is due to defendants, &c. This part of the decree is interlocutory, and the action and report of the Commissioner on the matters referred to him must be had before a final decree can be made. It also contains (a practice very objectionable, and one that should be discontinued,) what in form is a final decree, in anticipation of the Commissioner’s report. But this part of the decree can have no effect whatever, or be regarded as final until the Commissioner’s report is made and confirmed. The policy of the statute in only allowing appeals from final decrees, isp that the whole mase shall be reviewed in this court at one time, and not in detached parts at different times, thereby lengthening litig-ation.
What are and what are not final decrees thatjmay be appealed from, was considered by this court in Caswell v. Comstock, 6 Mich. 391, in which an appeal from a decree similar to the present was dismissed.
Appeal dismissed without costs to either party.
The other Justices concurred. | [
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Beid, J.
Plaintiff filed his bill of complaint against the city of Detroit, as his employer, and against members of the civil service commission of the city of Detroit. The suit has been discontinued as to coplaintiffs Dyson and Krause, originally joined with Walinske. We hereinafter refer to Walinske as plaintiff. We also refer to the civil service commission of the city of Detroit and to its members, as the defendant.
Plaintiff in his bill of complaint prayed that the equity court declare and decree that he is holding his position (to which he was promoted) in the service of the city pursuant to an appointment by the corporation counsel vested with authority at the time of the appointment, to make the appointment and that the court declare and decree that defendant is without authority to order plaintiff to discontinue working for the city or to assign another to take over his duties; and for other equitable relief.
The trial court dismissed the bill on the ground that plaintiff’s only remedy was by way of certiorari.
On October 20, 1942, the Detroit common council approved a rule which had been adopted by the civil service commission of the city of Detroit, rule 16, which among other things, set up a new status for certain future employees of the city, known as “war service employment.” The rule provided among other things that “no person shall be placed from such lists [i.e., war service classes lists] for a period of employment exceeding the duration of the war and 6 months thereafter.” The purpose of the rule is evidently to provide reinstatement of returned veterans in their employment, by making interim appointments.
• On June 14, 1943, Paul E. Krause, then corporation counsel of the city and vested as such with certain powers of appointing city employees, made a requisition to the defendant city civil service commission for a painter to be employed in the real estate division as a permanent employee. On August 5, 1943, plaintiff took and passed an examination for a classification covering the class for which the requisition in question had been made. On October 25, 1943, plaintiff took a physical examination, and was found to have an inguinal hernia. On November 8, 1943, an assistant corporation counsel wrote the defendant commission a letter suggesting that on account of the existing shortage of labor, the defendant suspend the rule as to hernia and employ plaintiff.
On November 22,1943, the defendant informed the corporation counsel that in conformance with the corporation counsel’s requisition of June 14, 1943, the defendant placed plaintiff (as a building trades helper), his name being at the head of the appropriate %var service list. The corporation counsel on November 24, 1943, wrote defendant as follows:
“In compliance with your placement, John Walinske, has been appointed, subject to the provisions of rule 16 of the civil service commission, effective Dec. 6, 1943 [x] Not to exceed duration of war and 6 months thereafter.” (Italics supplied.)
On March 15, 1944, plaintiff was promoted by the corporation counsel from building trades helper to building tradesman, “Effective date, Mar. 23. Duration of employment, Duration,” and requested the defendant commission’s approval. The defendant commission approved the employment of plaintiff as building tradesman, “Effective 3-23-44; for war service employment, per section 8, rule 16 subject to noncompetitive examination and classification survey in 60 days.”
On August 27,1946, the acting corporation counsel made requisition to defendant for a building tradesman to succeed plaintiff “in accordance with instructions in memorandum of June 21, 1946 and August 19,1946 — per civil service commission.” The memorandum, thus referred to, is not in the record. The corporation counsel removed plaintiff so that he received no part of the payroll ending March 2, 1947. We quote from records of the corporation counsel’s office, “Last day worked — 2-21-47. Remarks — Removed from payroll by civil service commission.” The defendant’s roster card for plaintiff shows, “2-21-47 — Off roll.”
Plaintiff concedes (in his reply) that on August 27, 1946, the corporation counsel requested (of defendant) 1 building tradesman (general) to fill the position then occupied by plaintiff, but plaintiff further states that such request was made on the advice and instigation of defendant. Plaintiff in his bill had made the statement that the corporation counsel had never rescinded plaintiff’s appointment, nor discharged him.
Plaintiff’s complaint seems to be: (a) That the defendant had no authority to adopt rule 16 and set up a war service employment classification; (b) that plaintiff having passed a general examination with top credit, his disqualification on account of hernia being waived, he was entitled to be treated as em ployed without the limitation of the war period plus 6 months; (c) and that in consequence, his discharge at the end of the war employment period plus 6 months, was illegal and that in contemplation of law, he never was discharged.
Among other things in his reply, plaintiff claims that his employment does not come within the purview of the war service appointment because he possessed all the qualifications of a building trades helper, having attained a grade on a regular civil service examination in excess of requirements for qualification for passing.
Plaintiff requests a hearing of his case in equity.
Plaintiff asserts that there is no matter of a purely administrative nature in the case, and that he makes no complaint of any order made by defendant after a hearing.
Plaintiff claims (in his brief) that the trial court was in error in dismissing his suit because of the following :
“1. The bill of complaint challenged the authority of the civil service service commission to promulgate rule 16, providing for war service employment, as being an exercise of a power not given to it under the charter.
“2. The civil service commission discharged the plaintiff without hearing, thus usurping the powers of the corporation counsel as conferred upon him by the charter.
“3. The civil service commission, not having authority to establish a war service classification, and not having authority to discharge the plaintiff, since it was not the appointing officer, as provided for by section 18 of chapter 2 of title 4 of the charter, acted in an arbitrary and capricious manner.”
Defendant claims that plaintiff’s sole remedy is by writ of certiorari,
“The office of the common-law writ of certiorari is to bring before the court for inspection the record of the proceedings of an inferior tribunal in order that the superior court may determine from the face of the record whether the inferior court has exceeded its jurisdiction, or has not proceeded according to the essential requirements of the law.” 10 Am Jur, p 524, § 3.
“The principal office of the writ [of certiorari] is to control the action of an inferior tribunal and ta keep it within its jurisdiction.” ' 14 CJS, p 122, § 2a.
“The writ is also used, in many jurisdictions, to review not only proceedings of inferior courts but also proceedings óf inferior officers, boards, and tribunals exercising judicial or quasi-judicial functions.” 14 CJS, p 122,- § 1.
See, also, In re Fredericks, 285 Mich 262 (125 ALR 259); Public Welfare Commission of Detroit v. Civil Service Commission of Detroit, 289 Mich 101, 107; Goodfellow v. Civil Service Commission, 312 Mich 226; Bischoff v. County of Wayne, 320 Mich 376.
Plaintiff’s complaint against defendant is over administrative actions. Plaintiff’s remedy, if any, is by certiorari. It is not for the chancery court to review de novo defendant’s administrative determinations. See In re Fredericks, supra.
The order dismissing the bill of complaint is affirmed. Costs to defendant.
North, C. J., and Dethmers, Butzel, Carr, Bushnell, Sharpe, and Boyles, JJ., concurred. | [
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Carr, J.
The parties to this case are the owners of lots in Deer Lake Hills subdivision, located in Independence township, Oakland county. The property therein was platted by the owners in 1926, the plat being recorded in the office of the register of deeds of the county on May 26th of that year. It was specifically provided therein that streets and easements shown on the plat as public were dedicated to the use of the public while all other roads were dedicated to the use of the property owners in the subdivision.
The plaintiffs allege in their bill of complaint that by virtue of said plat they have easements in a private road known as Sagamore drive, the user of which is essential to enable them to reach their respective lots from a public highway designated on the plat as Clarkston road, and also referred to in the record as the Deer Lake road, now a part of the county road system. Exhibits introduced in the case indicate that said public highway runs in an east and west direction, that it has a total width of 106 feet, that a portion thereof approximately 26 feet in width has been graveled, and that the north edge of the gravel is 48 feet immediately south of defendants’ property line. Sagamore drive approaches the Clarkston road from the northwest, intersecting it at an angle. The roadway that has been, and now is, used by plaintiffs in said drive is graveled.
In 1947 defendants became the owners of lots 67 and 68 in said subdivision and at the time of the institution of the present suit owned, in addition to said lots, a portion of lot 66. The record indicates that defendants’ property abuts mainly on the public highway and to a limited extent on Sagamore drive. It further appears that the buildings on their property are so placed as to be on land 5 feet or more lower than the Clarkston road. As a result defendants have been and now are confronted by a drain age problem. Desiring to protect their lots against the flow of water from the highway, and perhaps in part from Sagamore drive, defendants sought to construct an approach in the highway with a gutter, or concrete curbing, as a part of such construction, extending across the graveled road used for travel between said highway and Sagamore drive. Accordingly a permit from the board of county road commissioners was obtained granting to defendants the right to construct the so-called approach within the right-of-way of the Deer Lake road at the site of their property in said subdivision, subject to the condition that “concrete curbing shall be terminated at least 10 feet from the north edge of existing gravel road surface.”
On learning of the contemplated construction plaintiffs started the instant suit for injunctive relief, claiming that the concrete gutter and curb contemplated by defendants would deprive plaintiffs of the existing entrance to their property on Sagamore drive, would constitute a nuisance as to them, and would put them to the expense of providing another entrance. Defendants by answer and motion to dismiss challenged the right of plaintiffs to the equitable relief sought. After listening to the proofs and viewing the premises the trial judge came to the conclusion that plaintiffs were entitled to an injunction against the proposed construction and entered a decree accordingly. Defendants have appealed.
• On behalf of appellants it is argued that the bill of complaint does not set forth a cause of action cognizable in a court of equity. However, it appears from the pleading that the plaintiffs are the owners of lots in the subdivision in question, that access thereto involves the user of Clarkston road and Sagamore drive, and that said thoroughfares have been used in the past and are now being used for said purpose. . It was further averred that defendants by their contemplated construction were about to interfere with the exercise by plaintiffs of their alleged rights, and that such interference would constitute a nuisance as to plaintiffs, and would deprive them of the established entrance to their properties and put them to great expense to provide another entrance. We think that the averments of fact set forth, as distinguished from conclusions, are sufficient to indicate plaintiffs’ alleged cause of action. Plaintiffs’ rights, the threatened interference therewith, and the anticipated results are averred with reasonable clarity. The trial judge was correct in refusing to dismiss the bill of complaint on the ground of the insufficiency of factual allegations therein.
It is further contended that relief should have been denied on the ground that plaintiffs were guilty of such inequitable conduct as to bar the issuance of an injunction. It is not disputed by defendants that plaintiffs own private easements in Sagamore drive which they are entitled to use and enjoy. Neither is it disputed that since the platting of the property a portion of said drive has been used as a road between lots on the drive and the public highway to the southeast, such portion being graveled. Approximately 1 1/2 years before the trial of the instant case in circuit court an attempt was made to furnish another way adapted for trável from the public road to the drive and conversely. Apparently a strip of land was plowed, said strip of land being located in part in the public highway and in part in Sagamore drive. It is claimed by plaintiffs, and the proofs support such claim, that it encroached on lot 51 of the subdivision which was and is owned by plaintiffs Jans. The record does not establish with any degree of certainty the responsibility for the attempt to open this alternate way. It appears that some' of the plaintiffs at least undertook to use it. but found it unsatisfactory.
No claim is made that the plaintiffs, or any of them, abandoned their right to use the roadway that had existed and had been used for at least 22 years. ■Plaintiffs assert that the new way of approach from the highway to Sagamore drive was left by its promoters in an unsatisfactory and uncompleted condition, and that the grade therein made it undesirable ■for use. Subsequently this proposed alternate way was blocked by plaintiff Paul A. Jans, who admitted on the trial that he had caused a tree that had been struck by lightning to be placed there and had also caused to be moved to said way logs that had been wrongfully put on his lot by the parties undertaking to open the way. Apparently plaintiff Jans undertook to indicate his nonacceptance of the proposed new way in the manner stated. "Whether the other plaintiffs participated in his acts does not appear. Neither do they claim that they expressed any disapproval.
• Insofar as plaintiff Jans is concerned, we think it must be said he was not bound to permit a part of his lot to be taken to furnish a connecting link between Clarkston road and Sagamore drive. It is equally true that the plaintiffs were not required to surrender rights in the established roadway and accept the proposed alternate way of access to their properties in,the subdivision. It is not contended by appellants that plaintiffs interfered with the established way or with any rights of defendants or of others therein. Under the facts here presented the plaintiffs were not guilty of such conduct as precluded the granting to them of equitable relief.
Appellants argue that plaintiffs have an adequate remedy at law and for that reason are not entitled to maintain an action in equity. Such argument is apparently predicated on the right of public authorities having supervision'over a highway to institute proceedings to compel the removal of obstructions or encroachments thereon. In the instant case, however, the easements that plaintiffs seek to protect are in Sagamore drive which, as before noted, is a private road. No claim is made that township or county authorities are charged with any duty to protect private easements. In the instant case plaintiffs are clearly entitled to insist that they be permitted to continue the established user of Sagamore drive and that their means of egress therefrom to Clarkston road shall not be infringed. They are in consequence entitled to maintain their suit for the protection and enforcement of private rights in which the public is not concerned. See Forbes v. City of Detroit, 139 Mich 280; 1426 Woodward Avenue Corp. v. Wolff, 312 Mich 352.
Appellants also insist that as abutting owners on the Clarkston road they have a legal right to a driveway approach to the traveled portion of said road, asserting in this connection that their proposed construction “does not unreasonably interfere with the public easement.” It may be noted that there is no public easement involved in the present controversy. It is obvious, we think, that the construction of the approach as planned, which would entirely cross the gravel road that has been used for over 22 years as a method of travel between Sagamore drive and Clarkston road, would prevent the further use of such way, thereby depriving plaintiffs of rights that they at present enjoy and which have been exercised for the period of time indicated. The fact that another way may be established by plaintiffs does not bar them from seeking to protect the rights that they now have. Defendants’ proposed construction would, if installed, constitute a substantial interference with the exercise by plaintiffs of their easements in Sagamore drive. Berkey & Gay Furniture Co. v. Valley City Milling Co., 194 Mich 234. The rights granted under the dedicatory clauses in the plat to the owners of lots in the subdivision may not be infringed by one lot owner for his own convenience to the detriment of his fellow lot owners.
Attention is directed by appellants to the fact that the interposition of equity is sought in advance of the construction that plaintiffs’ claim will constitute a nuisance. They seek to invoke the frequently-recognized rule that where an injury is uncertain or contingent an injunction, or other equitable relief, will not be granted. Under such circumstances it has been recognized that the remedy should be withheld until such time as it may be made to appear by proper proofs that a nuisance injurious to the parties seeking relief has actually been created, Foster v. County of Genesee, 329 Mich 665. In the instant case, however, there is no chance for question as to the situation that will result in the event that defendants are permitted to construct the driveway approach as planned. In this connection the testimony of plaintiffs’ witness Edwin C. Sage, a registered surveyor, is significant. In describing the situation the witness said in part, referring specifically to an exhibit that he had prepared:
“On the continuation of that line out of lot 67 I have indicated some survey stakes that were to be the curb that was to be built. I think Mr. Jyleen or somebody set them. That curb would completely close the traveled portion of Sagamore drive which as Mrs. Minnis testified has been in use 22 years, which would necessitate another entrance if they were going to get into Sagamore drive.”
Under the record before us the conclusion cannot be avoided that defendants’ proposed construction would wholly prevent the further use by plaintiffs of the present roadway from Sagamore drive to Clarkston road. "We are not here dealing with a situation in which the injury that plaintiffs seek to avert will be doubtful if defendants. continue with their plans. The rule of equitable procedure to which appellants refer has no application. The situation presented is one calling for the granting of equitable relief. See Hasselbring v. Koepke, 263 Mich 466 (93 ALR 1170).
The decree of the trial court is affirmed, with costs to appellees.
North, C. J., and Dethmers, Butzel, Btjshnell, Sharpe, Boyles, and Beid, JJ., concurred. | [
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Carr, J.
The material facts in this case are set forth in a statement which, pursuant to stipulation of counsel, has been included in the certified record. In November, 1948, the parties entered into an arrangement whereby the plaintiff was to do certain work in connection with the repairing and remodeling of defendant’s store and apartments. Labor was performed by plaintiff and by his helper in accordance with the agreement. Differences arose with reference to the amount of work done and the length of time reasonably necessary for the services rendered. Because of such differences plaintiff brought action in circuit court to recover the amount. that he claimed was due to him. He testified on the trial that under the agreement he was to be paid $1.50 per hour for his labor, and that he was authorized to hire a helper at the rate of $1 an hour, It was his claim in substance that he and his helper had worked-546 hours each for defendant.
Defendant testified that he did not know how much time was actually expended by plaintiff, but offered testimony of contractors and builders tending; to show that the work that plaintiff and his helper had done should not have taken the length of time claimed by plaintiff. The latter testified on his direct examination, that he had paid the helper a total of $546, as alleged in the declaration. Subsequently ’he modified his statement, claiming that he had paid up to that time $100 and was indebted for the bal-' anee. In submitting the case to the jury the trial judge charged that in the event a verdict was returned for plaintiff the maximum recovery allowable would be based on 546 hours of work for plaintiff at $1.50 per hour and 100 hours for the helper at $1 per hour. The jurors undertook to return a verdict setting forth that they found 546 hours for plaintiff' and 300 hours for his helper. Thereupon the trial judge explained that their verdict must set forth the amount of money for which plaintiff was‘entitled to judgment. Accordingly, the jurors returned to their-room, determined the amount of their verdict, and returned it in the sum of $1,119, which sum was in accord with the number of hours that they had previously reported they had found plaintiff and his helper respectively had worked, computed at the rates claimed by plaintiff.
Defendant filed a motion for a new trial, asserting among other grounds that the jury had disregarded the instructions of the court and that the verdict finally returned was contrary to law. The trial judge considered the reasons advanced in support of the motion, and reached the conclusion that the jury had erroneously failed to follow the instructions given but that such error could be corrected by a remittitur in the sum’of $200. Accordingly an order, conditioned on the making by plaintiff of such remittitur, was entered, denying the motion. Plaintiff accepted the condition and consented to the reduction of the amount of the judgment by the sum stated, whereupon judgment was entered for him in the sum of $919. Defendant has appealed, asserting that a new .'trial should have been granted and that the error committed by the jury in disregarding the instructions of the trial judge was not cured by the remittitur.
Whether error occurring in the course of a trial of such nature that it is, or may he, reflected in an excessive verdict and judgment can be cured by permitting a remittitur in a specified sum depends in each instance on the particular facts and issues' involved, the precise nature of the error, and the determination of the question whether a possible injustice may be thereby obviated. In an instance where the amount of the excess can be determined with reasonable certainty from ’the record the necessity for a new trial may properly be avoided by permitting a remittitur. Such a situation was presented in Duffiny v. Detroit & Mackinac Railway Co., 186 Mich 40. In that case plaintiff sought to recover damages from the defendant on the ground of 'negligence, including in her declaration a claim of right to recover a penalty in the sum of $100, fixed by statute then in effect, for alleged failure on the part of the defendant to announce a station. The jury returned a verdict for plaintiff in the sum of $500. Subsequently a motion for a new trial was made for the reason, among others, that the declaration set forth 2 distinct causes of action, and that the circuit judge was in error in submitting both causes. The.trial court determined that such submission was error, and entered an order granting a new trial unless plaintiff consented to remit the sum of $100 of the judgment. Plaintiff filed such remittitur, and this Court held on appeal, overruling the claim of defendant that the error had not been cured,.that “defendant had no cause for complaint.”’
In Snook v. Mt. Clemens Sugar Co., 186 Mich 593, the trial court determined from the evidence the amount by which the judgment entered was excessive and required the plaintiff to make a remittitur accordingly or to submit to a ne.w trial. The remittitur was duly filed. On appeal the reduced judgment was affirmed,- the Court saying in part:
“This Court has allowed, and approved the action of the trial judges in making the granting of a new trial depend conditionally upon the remitting of a-portion of the judgment. Detzur v. B. Stroh Brewing Co., 119 Mich 282 (44 LRA 500, 5 Am Neg Rep 371); North Michigan Land & Live Stock Co. v. Kneeland, 149 Mich 495. The rule as to when this Court will interfere with the action of the trial court in disposing of motions for new trials was so clearly stated by Justice Carpenter in Hintz v. Railroad Co., 132 Mich 305, that it is not necessary to restate it here.”
In Weaver v. People’s Motor Coach Co., 237 Mich 274, the trial judge in submitting a claim for personal injuries to the jury neglected to charge that the amount of any sum allowed for future damages should be reduced to present worth. A verdict in the sum of $2,000 was returned on which judgment was entered. A motion for a new trial was denied on condition that plaintiff file a remittitur of $100, which was done. The trial judge, in taking such action, discussed the testimony relating to the subject of damages and concluded that the rights of the defendant would be fully protected by the entering of a judgment decreased by the amount indicated. This Court concluded that the action taken was correct, and the judgment was affirmed.
In Fink v. Superior Lamp & Shade Co., 238 Mich 390, the verdict returned by the jury was found to be excessive because of the failure to deduct from plaintiff’s damages sums earned by him following the breach of contract on which his cause of action was based. A motion for a new trial was denied on condition that plaintiff, for whom judgment had been entered on the verdict for $5,777.80, would remit all amounts in excess of $4,676.79. Plaintiff accepted the condition. Defendant appealed, claiming that since the verdict was excessive it was entitled to have the judgment reversed. In rejecting such claim, it was said:
“We are not favorably impressed with counsel’s argument. The maximum amount claimed by plaintiff was certain. The amount he had earned after discharge was certain, and the error of the jury was certain. When the verdict was corrected-by these certainties we think defendant has no cause for complaint. No one had cause for complaint except the plaintiff, and he has acquiesced. This method of treating the matter is fully justified in Bresnahan v. Nugent, 97 Mich 359; Hines v. Darling, 99 Mich 47.”
Likewise, in Hamilton v. Stephens, 240 Mich 228, an action for damages for breach of contract, it was held that consent by plaintiffs to a reduction of the judgment from $1,325 to $668.10, as the alternative to a new trial, cured any error resulting from claimed inaccuracies in the charge of the trial court. In discussing the situation, attention was directed to the fact that in view of the reduction in the judgment there was no miscarriage of justice.
In Martin Parry Corp. v. Berner, 259 Mich 621, plaintiff was required to make payments under the workmen’s compensation act to one of its employees allegedly injured in the course of his employment by the negligence of the defendant. A lump-sum settlement between employer and employee in the amount of' $2,862 had been entered into, but in determining such amount the sum of the deferred payments computed had not been reduced to present worth as required by the pertinent provision of the statute relating to such settlements. Recovery was allowed by the trial court on the basis of the sum paid to the employee under the agreement. In consequence the judgment entered in plaintiff’s behalf was excessive by the sum of $199.45. This Court held that there was error in permitting such verdict to be returned and in the entry of judgment thereon. It was determined, however, that such error might he cured by a remittitur of-the amount improperly included in the verdict.' An order was accordingly entered granting a new trial unless plaintiff within a specified period of time filed a remittitur in the sum of $199.45. See, also, Meyers v. Gearey, 212 Mich 449; Fortner v. Koch, 272 Mich 273; McDaniel v. Hancock, 328 Mich 78.
In the case at bar it is apparent that the jury overlooked the specific instructions of the court as to the maximum recovery permissible under the proofs. The amount of the verdict, considered in connection with the finding that the jury first undertook to submit, indicates clearly that it was based on a determination that plaintiff had worked 546 hours and that his helper had worked 300 hours. It thus appears that-the jury, in contravention of the instructions, undertook to allow plaintiff to recover the sum of $200 in excess of the maximum amount to which he was entitled under the proofs and the charge of the court. Under the authority of the cases above cited, and others of like import, we think the trial judge was correct in determining that the error on the part of the jury could be cured by a remittitur in the sum by which the verdict was excessive.
Appellant cites and relies on Dolomite Limestone Products Co. v. Kennedy-Van Saun Manfg. & Engineering Corporation, 241 Mich 279. Because of the peculiar facts involved, that decision is not in point in the determination of the issue in the case at bar. The plaintiff there brought action for damages for false representations with reference to machinery purchased by it from defendant for pulverizing limestone. The trial court instructed the jury that the measure of plaintiff’s damages, if it was entitled to recover, was the difference between the value of the. machinery had it been as represented and its ac tual value at the time it was sold to plaintiff. The agreed purchase price was $6,268. Testimony was admitted, over objection, indicating that plaintiff had contracts under which it might have sold a larger quantity of limestone than it was able to process with the machinery in question, that the profits on such sales would have been $6,450, and that the loss on the output actually produced was $2,601.50. The jury returned a verdict in the sum of $9,051.50, which amount aggregated the total of the profits that plaintiff claimed it would have received had the equipment permitted an output in accordance with the representations alleged to have been made and the loss on the business actually done. It was evident that the jury had ignored the instructions of the; court as to the proper measure of damages and had based the verdict on plaintiffs claimed loss of profits and loss in business operations. On motion for a new trial the court permitted plaintiff to remit the sum of $2,500 and thereupon entered judgment in its favor for the balance of $6,551.50. On appeal this Court reversed the judgment, pointing out that the amount thereof after the remittitur was more than $200 in excess of the cost price of the mill which presumably had some market value at the time it was purchased by the plaintiff. The Court further pointed out that the situation was not analogous to that presented in a personal injury case where it is impossible to present proof as to damages allowable for pain and suffering and in which a court has sought to avoid the necessity for a retrial by permitting a plaintiff to remit a portion of the judgment entered on the verdict of the jury when the, verdict is clearly excessive. Attention was directed to the nature of the proof required to determine the damages sustained by the plaintiff under the correct rule as given by the court to the jury and the probability; of such proof being available. The situation, in the instant case is obviously of a wholly different character.
The judgment of the trial court is affirmed. Plaintiff may have costs.
North, C. J., and Dethmers, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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] |
Dethmers, J.
Plaintiff, tbe Saginaw Hebrew Be.nevolent Society, was incorporated in 1898 as a nonprofit corporation for a term of 30 years, and in :1931 its charter was’ voided for failure to file its annual reports and pay its annual fees. Prom the beginning and until the date of hearing it has owned and maintained a cemetery. Adjacent thereto is the 150- by 120-foot parcel of land here in dispute. In 1934, it was conveyed by the record title owner, by warranty deed, to the Saginaw Hebrew Benevolent Association. Defendants Harry R. Budd and Blanche L. Budd secured a deed to the south 60 feet thereof from the State land office board on April 15, 1941, after it had been bid in by the State at the 1939 tax sale for nonpayment of 1936 taxes. They .bought the north 90 feet at the 1940 tax sale decreed for delinquent 1933 taxes, rejected, and reassessed in 1936, and 1936 and 1937 taxes. Plaintiff petitioned the court to set aside the 2 tax sales and declare the assessments upon which they were based null and void for the reason that, when made, the land was cemetery property, exempt from taxation. Prom an order amending the decree for sale, as prayed by plaintiff, defendants appeal.
As relates to the north 90 feet of the land in dispute the trial court held, in effect, that the reassessment in 1936 of 1933 taxes must be treated as a 1936 tax imposed on the land after it became cemetery property, exempt from taxation, and that, therefore, the reassessment was void. The court based its decision in this respect on the provisions of CL 1948, § 211.96 (Stat Ann 1950 Rev § 7.149). A plain reading of the statute makes it clear that rejection may occur if the property was not subject to taxation when the original assessment was made, not merely because it thereafter became entitled to exemption. Proper inquiry by plaintiff at the time of its purchase in 1934 would have disclosed the true status of the 1933 assessment, made when the property was not exempt, as in default, returned, or rejected. It could have protected itself accordingly. The amount of the tax was a subsisting lien at that time, subject to possible future rejection, for whatever reason, and reassessment. The exception, in the statute, from the requirement for reassessment after rejection clearly applies only, as expressly stated, when lands were not subject to taxation “at the time of the assessment for such taxes.” It is significant that the statute does not say “at the time of the reassessment for such taxes.” The 1936 reassessment of 1933 taxes was not void. As relates to the north 90 feet of the disputed property, therefore, the order of the trial court is reversed and plaintiff’s petition in relation thereto dismissed.
The tax assessments upon which the sale of the south 60 feet was based were made after the 1934 conveyance to plaintiff. Consequently, a different situation is presented in relation thereto. The defendants say that, nevertheless, the property was not entitled to exemption under CL 1948, § 211.7 (Stat Ann § 7.7) because it was not “used exclusively as burial grounds.” While actual burials had not yet occurred on the disputed land at time of trial, plaintiff had purchased it to take care of the future needs of the cemetery. Situated on its was a shack, the use of which was permitted by plaintiff to the cemetery caretaker as part of his compensation. While the statute exempting certain property of cemetery corporations (CL 1948, § 456.108 [Stat Ann § 21.878]) does not apply to plaintiff because it was not organized as a cemetery corporation and although that statute is worded somewhat differently than CL 1948, § 211.7 (Stat Ann § 7.7), applicable here, nevertheless we deem the legislative intent and purpose expressed in the 2 sections to be of like import. We construed the former section in the case of In re Petition of Auditor General, 294 Mich 221, saying:
“We are inclined toward liberality in construing this exemption because of the éxpressed policy we have ‘in common with the universal sentiment of mankind, to preserve and maintain the burial places of the dead.’ Avery v. Forest Lawn Cemetery Co., 127 Mich 125; Woodmere Cemetery Association v. City of Detroit, 192 Mich 553; White Chapel Memorial Association v. Willson, 260 Mich 238. The amount of acreage set aside for cemetery purposes did not exceed the legal limit. The record does not show that there was ever an abandonment for cemetery purposes of the land exempted by the decree. The casual use of the property by the indigent for farming purposes without consideration is not to be regarded as an abandonment of the original object. Within the acreage limit of the statute, ample provision may be made for the needs of the future, and the reserve will be entitled to protection from assessments.”
Nowhere does the legislative intent appear to exempt from taxation only the portions of cemeteries actually constituting graves and to subject the re mainder to taxation. It is clearly contemplated that the exemption shall apply to lots intended for future burials. We think the lands here in dispute come within the clear intent of the exempting statute.
, Next, defendants urge that under the limitations of CL 1948, § 211.70 (Stat Ann § 7.115), plaintiff’s petition must fall because not brought within 1 year after plaintiff had notice of the sale. This contention rests for its validity upon defendants’ theory that plaintiff must be held, under the provisions of CL 1948, § 2Í1.66 (Stat Ann § 7.111), to have had notice of the sale when publication of the petition and order therefor occurred. We do not read the cited statute to mean that owners of land exempt .from taxation are bound, at their peril, to peruse such publications to discover whether an unlawful tax assessment has been made upon such property and an illegal sale thereof decreed. The publications were not designed for that purpose.
We consider the word “association” instead of “society” in the conveyance to plaintiff an inconsequential error and note that no mention or complaint is made thereof in defendants’ answer. The conveyance was clearly intended to .be to the plaintiff corporation which at that time stood in default as re-, lates to filing of annual reports and payment of fees. Defendants urge that that default voids the deed to plaintiff and stands as a barrier to its right to invoke the aid of the courts in support thereof. The statute in effect when plaintiff acquired the land (CL 1948, § 450.87 [Stat Ann § 21.87]) did not inhibit the acquisition of real estate by a corporation in that status. This is not an action or suit, prohibited by the statute, upon a contract entered into by the corporation while it was in default. In John J. Gamalski Hardware, Inc., v. Wayne County Sheriff, 298 Mich 662, 671 (136 ALR 1155), we said:
“There is no question in the instant ease but that' plaintiff’s default for failure to comply with the provisions of the general corporation act has rendered iits charter void. However, we have held a corporation does not cease to exist upon its charter becoming absolutely void; that it still continues a body corporate and remains a legally existing corporation for certain purposes. One of said purposes being, as we have inferentially held, and now hold, is to hold and have possession of its property and to conserve same, until due proceedings are had, either to cure the default which caused the loss of its: charter, or to wind up its affairs in an orderly manner. There are many things it cannot do by reason1 of the prohibition of the statutes; but to hold, protect and repossess its property is not one of the-things it cannot do by reason of such prohibitory provisions. It would be doing a great injustice to the-right to own and hold property for us to say that the courts of this State are closed to a defaulting corporation to continue the possession of its property and to conserve the same.”
: By the same token, plaintiff may protect real estate purchased by it while in default. In Cook v. Casualty Association of America, 246 Mich 278, it was held, in a suit at law by a corporation, that the defense that it could not maintain the action because of its failure to file annual reports was an affirmative one which must be pleaded. We think that rule applicable here. The defense, if available to defendants, which we doubt, was not pleaded.
As relates to the south 60 feet of the disputed land we hold the trial court’s order setting aside the tax sale correct and it is hereby affirmed.
A decree may enter in this Court in accord herewith. No costs, neither party having prevailed in full.
North, C. J., and Butzel, Carr, Bushnell, Boyles, and Reid, JJ., concurred with Dethmers, J. | [
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] |
Kuhn, J.
This is a proceeding by writ of certiorari to review an order of the circuit court granting a writ of mandamus. . The respondent Fred Rice, on April 11, 1914, filed an application with the township board of the township of Richland, praying for a license to engage in the retail liquor business in the said township. On the same day a petition addressed to said township board, signed by each of the above relators and 104 other qualified electors of said township, protesting against the issuing of the license, was filed with the clerk of said township. At a meeting held by said township board, the said application and petitions were considered, and the said application was laid on the table. On the 25th of April, 1914, the respondent Fred Rice filed with the township clerk a liquor dealer’s bond, signed by himself as principal and the Michigan Bonding & Surety Company as surety. On the same day, at a meeting of the township board, the application and bond of respondent Rice were approved, notwithstanding the protesting petition of the 111 qualified electors. At the hearing of the petition of the relators for a mandamus, no appearance or answer was made by either the township board or the county treasurer, respondents herein, and the only appearance and answer thereto was by respondent Fred Rice.
The questions brought here for review were stated in counsel’s brief as follows:
“(1) Because the proceedings were brought by the relators, who are private parties.
“(2) Because the only persons who have the right or authority to so petition and to bring such proceedings are the attorney general or the prosecuting attorney.
“(3) That a private citizen does not possess the right to ask for a writ of mandamus without permission of the court.”
It appears, from an examination of the petition addressed to the circuit court for the county of Ogemaw, that the name of George Bennett is signed to said petition as prosecuting attorney in and for said county, and not as private attorney for the relators. The brief in this court is also filed by him in his official capacity.
It is urged by petitioners that the relators have a peculiar interest in the case, not in common with other citizens of the said township of Richland, in that their petition was ignored by the said township board, which gave them a right to ask for the relief granted to them by the circuit court, and that under the weight of authority they had a right as private individuals to launch this suit. Irrespective of whatever merit there may be to this claim, it is conceded that, if the petitioners had no right as private individuals to bring this action, the prosecuting attorney is the proper official to institute such a proceeding, by virtue of section 2556, 1 Comp. Laws (1 How. Stat. [2d Ed.] § 1152). And while it is true that his name does not appear as petitioner, it is clearly evident that he approves of the action in his official capacity; he having signed the petition as prosecuting attorney and represented the petitioners in that capacity, both in the circuit court and in this court. We think this is clearly sufficient to show that he has acquiesced in and approves of the action of the petitioners in his official capacity, and therefore the objections urged are purely technical and without merit. See Village of Wolverine v. Cheboygan Circuit Judge, 162 Mich. 713 (127 N. W. 744).
The order of the circuit judge, granting the writ of mandamus, is affirmed.
McAlvay, C. J., and Brooke, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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] |
Moore, J.
This bill of complaint was filed to em force specific performance of an alleged verbal contract between the complainant and the Gleason Company, wherein the Gleason Company, it is claimed, verbally agreed to give the complainant all he could make over and above certain amounts named, as royalty, if he could find a customer who would explore and sublease for mining purposes two tracts of iron ore lands located in Iron county, Mich., known as the Goodman and Polock properties, of which the Gleason Company was lessee. From a decree in favor of the defendants the case is brought here by appeal.
The board of directors of the Gleason Company were Albert E. Neff, Clayton Voorhis, and Michael Gleason,. Matt E. Gleason, and J. C. McCreevy. Mr. Neff was president, Matt E. Gleason was vice president, and Michael Gleason was.general manager.
There is no dispute about the complainant having found a customer for the Gleason Company, but it is claimed by the Gleason Company that complainant received his, commission from the customer in the sum of $15,000, and that the Gleason, Company never agreed to pay the complainant a commission. It is the claim of complainant that such an agreement was made through Matt E. Gleason. Counsel for complainant state:
“The questions involved. which are raised .by the pleadings and testimony -are whether the defendant, Gleason Company, contracted with the complainant that, if he would secure some one who would explore the mining properties of defendant and would develop the same, defendant would give to complainant all he could sell, lease, or dispose of the same for over and above 47 cents per ton on Ore mined on the Polock property, and all * * * . on the Goodman property above 40 cents per ton. This, includes the question whether Vice President and Director Matt Gleason had power or authority, express or implied, to contract on behalf of the company, and whether he did so contract.”
Counsel for the appellee contend for the following propositions:
“(1) That the verbal agreement relied upon by complainant to secure from this defendant as a commission all the royalty which could be obtained in excess of 47 cents per ton on the Pólock property and 40 cents per ton on the Goodman property was never in fact made by Matt E. Gleason.
“(2) That Matt E. Gleason had no express or implied authority to make any such agreement in behalf of the Gleason Exploration' & Mining Company, and that such agreement, if made, was never, ratified or adopted by the Gleason- Company.
“(3) That the verbal agreement .alleged to have been made by complainant with the Gleason Company is void and unenforceable as against public policy, in view of the undisputed evidence that complainant demanded and secured from Mr. Kendall’s Company a commission of $15,000 in cash without disclosing to it the fact that he likewise claimed a commission from the Gleason Company.”
The case was heard in open cdurt. The trial judge in disposing of the case filed a lengthy opinion in writing, in which he reviewed the testimony at length. He concludes his opinion as follows: .
“A careful examination of the record and briefs of counsel fails to remove, but rather to fix, tie impression obtained at the hearing that on the question whether the contract claimed by the complainant was in fact entered into by Matt Gleason with or without authority, the complainant has not preponderated.
“That Matt Gleason, as director and vice president, did not, because of such offices, have authority to 'bind his company on the contract claimed is clear. No evidence was introduced tending to show the Gleason Company, either expressly or • impliedly, authorized him to make such contract. On the contrary, the evidence is convincing the company had determined not to sublet, these properties at a less royalty than 45 and 50 cents net to the company, and consequently, if Matt Gleason did undertake to conclude on the part of his company, the contract in question, it would be ineffectual unless it appears' it was ratified.
“The learned counsel for complainant do not gravely contend Matt Gleason was authorized to make the contract, but, in the argument and in a carefully prepared brief they endeavor to convince the contract was ratified. They invoke the rule of law which holds a principal, who has accepted benefits under an unauthorized contract, to a ratification of all the terms of such contract of which he had notice or regarding which he is fairly put upon inquiry. That rule of law is elementary, but unfortunately for the complain ant, when applied to the facts in this case, serves rather to defeat than to sustain ratification. The rule relieves from the penalty of involuntary ratification the principal who is diligent in inquiring, and yet does not .know, or who is relieved from inquiring by the conduct of the other party. The Gleason Company was relieved from inquiry by the statement which Mr. Parey volunteered to its general manager, just before the Gleason Company bound itself to the New York Company, that his compensation, which was to be $15,000, was to come from the latter company. The general manager would have the right to assume that when Mr. Carey went into the subject of his compensation he would disclose all his claims in that regard, and was justified in resting and in acting without further inquiry.
“It would be a strange rule which would hold a principal, upon acceptance of the terms of an unauthorized contract which are known to him, to a ratification of other terms of the same contract which are unknown to him, and which are withheld or disclaimed by the other party at a time when the principal was able to go on, or refuse to go on, with the contract in its entirety.
“The discussion of the question whether there was ratification might be extended, but is not necessary, and would not be interesting in view of the conclusion that the alleged contract was not made.”
. The case was argued at length orally in this court. It is also well briefed. We have examined the record and briefs with care. It would profit no one to set out the testimony here. We shall content ourselves witib. saying that the testimony does not sustain the averments of the bill of complaint, but, on the contrary, it preponderates in favor of the contention of defendants that no contract to pay complainant a bonus was made.
The decree is affirmed, with costs.
McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Bird, and Steere, JJ., concurred. | [
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