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North, C. J.
This suit was commenced in chancery to recover contributions to the Michigan unemployment fund allegedly improperly charged against and made by plaintiff during the years 1937 to 1949, both inclusive. Defendant entered a special appearance and made a motion to dismiss plaintiff’s bill in equity. This resulted in an order by the trial court transferring the case to the law side of the court. Thereafter plaintiff filed an amended bill of complaint and subsequently thereto plaintiff petitioned for a rehearing of defendant’s motion which resulted in the case being transferred to the law side of the court. Plaintiff’s petition was denied, and it has appealed.
Plaintiff is a Michigan corporation, engaged in the coal business in Wayne county, and for the delivery of its coal to purchasers-, plaintiff contracts with an individual and pays him an agreed amount on a per ton basis; that individual makes deliveries in his own trucks, hires the drivers of the trucks, and pays them for their services, presumably out of money received from plaintiff. During the years 1937, 1938 and 1939, plaintiff made no contributions to the Michigan unemployment fund, on the theory that the sums paid by plaintiff to the owner of the trucks and by him to the truck drivers were not payments of wages by plaintiff to employees. In 1940 the Michigan unemployment compensation commission determined that the money paid to the truck drivers was “wages” and that these men were plaintiff’s employees. As a result, from 1937 to 1949, plaintiff, as alleged in its amended bill of complaint, made contributions to the Michigan unemployment fund totaling $2,990.37, on the basis of payments made to the truck drivers. But in 1950 the commis sion changed Its determination and ruled that the truck drivers were not employees of plaintiff and, hence, the contributions by plaintiff were not- re^ quired by law. The commission offered to refund to plaintiff the amounts it considered plaintiff had paid for the years 1947, 1948 and 1949. However plaintiff claims' the offer was somewhat insufficient in amount. It refused defendant’s offer, and instituted this suit in equity claiming the right of recovery for contributions made by it during the years 1937 to 1949, inclusive. The pertinent statutory provisions read:
“Any employer or employing unit improperly charged or assessed any contributions provided for under this act, may recover the amount improperly collected or paid, together with interest, in any proper action or suit against the commission; and the circuit court * * * shall have original jurisdiction of any action to recover any contributions improperly paid or collected whether or not such charge or assessment has been reviewed by the commission or heard or reviewed by a referee or the appeal board.” CL 1948, § 421.15(d) (Stat Ann 1950 Eev §17.515).
The statute contains no provision as to whether proceedings for recovery of “improperly charged or assessed” contributions should be brought on the law side or the equity side of the court. Defendant herein contends plaintiff has an adequate remedy at law, and therefore the transfer of the instant ease to the law side of the court was proper. But plaintiff asserts it is entitled to present its suit by a bill in chancery. The reasons assigned by it in support of its contention are stated in its brief, substantially as follows: (1) Plaintiff has set forth in its amended hill of complaint facts requiring an accounting from defendant; and (2) that all of the contributions made by plaintiff were paid under an innocent mistake of law or fact and the unjust enrichment which has resulted from such mistake should be corrected in equity. And, both in the brief and at the oral argument, plaintiff’s counsel asserted the further reason that in a suit at law defendant might successfully assert plaintiff’s claim, at least in part, was harred by the statute of limitations, whereas that defense would not be tenable in this case in equity.
We are of the opinion that none of the above reasons asserted, nor all of them collectively, affords a tenable reason for holding that equity has jurisdiction. The claim that an accounting is required is based upon plaintiff’s assertion in its brief that: “Possibly defendant has paid, during those years, unemployment compensation to some of these men” engaged in driving the trucks delivering coal for plaintiff. Plowever, if such a defense is to be urged as a ground for minimizing the amount of recovery, obviously it is of interest only to defendant and is of no concern to plaintiff, except plaintiff’s recovery might be minimized thereby; and further if such claim on the part of defendant were tenable it could be, and naturally would be, asserted by defendant. It is not an affirmative part of plaintiff’s case. Nor, in a case of this character, can equitable jurisdiction be asserted solely on the ground of mutual mistake of law or fact. Likewise jurisdiction on the law side of the court may not be nullified by a claim on the part of a plaintiff that its right to recover may, either in whole or in part, be barred by a defendant’s assertion of the defense afforded by the statute of limitations.
On the assumption, which we think is proper, notwithstanding plaintiff’s contrary contention, that these contributions by plaintiff are in the nature of taxes, defendant, relying upon authorities about to be noted, correctly asserts that assumpsit is the proper action for the recovery of taxes and these contributions improperly paid or collected.
“The remedy to recover illegal taxes paid is in assumpsit for money had and received.” Salisbury v. City of Detroit, 258 Mich 235.
“The sole purpose of plaintiffs’ suit is the recovery of money paid for taxes. Such an action can be brought only on the law side of the court. See Long v. Village of Dundee, 159 Mich 320.” Paul v. City of Detroit, 318 Mich 545, 551.
The correctness of defendant’s contention that the contributions or assessments provided in the Michigan unemployment compensation act are at least in the nature of taxes, seems wholly justified by the following provisions in the act:
“The commission shall have the right to make assessments against any employer who fails to pay contributions or interest as required by this act. The commission shall immediately notify the employer of the assessment in writing. * * * And provided further, That any employer may pay an assessment under protest and file suit to recover the amount so paid, as provided under section 15(d) (partly quoted above) of this act. Unless an assessment is paid within 15 days after it becomes final the commission may issue a warrant under its official seal directed to the sheriff of any county of the State or to any State officer authorized to serve process commanding such sheriff or other officer to levy upon and sell the property of the employer used in connection with his business, found within his jurisdiction, for the payment of the amount of such contributions including penalties, interests, and the cost of executing the warrant. No property of such employer used in connection with his business shall be exempt from levy under such warrant.” CL 1948, § 421.15(b) (Stat Ann 1950 Rev § 17.515).
Thé order of the circuit judge transferring plaintiff’s suit to the law side of the court is affirmed. Costs to defendant.
Dethmers, Btitzel, Carr, Btjshnell, Sharpe, Boyles, and Reid, JJ., concurred.
Now the Michigan employment security commission. See PA 1936 (Ex Sess), No 1, § 3, as amended by PA 1951, No 251 (Stat Ann 1951 Cum Supp § 17.503).
See CL 1948, § 609.13 (Stat Ann 1949 Cum Supp § 27.605).— Reporter. | [
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Deti-imers, J.
Defendant commission granted defendant Hawkins a contract carrier’s permit upon application and hearing of which plaintiffs Koss and Strange, competing carriers, were not given the stat utory notice'. They appealed to the Ingham county circuit court. The court granted defendant Hawkins’ motion to dismiss as to Strange because he had not been a party before the commission, but allowed him to intervene as a party plaintiff. Koss died, whereupon defendants moved to dismiss on the grounds that the appeal had abated on Koss’s death and that Strange, as intervening plaintiff, was thereafter without legal capacity to maintain 'it; The motion was denied. At that stage Koss’s widow, as administratrix of his éstate, after the commission had granted her carrier’s rights identical with those previously held by her husband, was permitted to intervene as party plaintiff. On hearing before 'the court defendant Hawkins alone introduced proofs, which the court transmitted to the commission for further consideration. Thereafter the commission made statutory report to the court that it had rescinded its original order granting a permit to defendant Hawkins and asked that the cause be dismissed, which the court did accordingly. Defendant Hawkins appeals.
Both intervening plaintiffs had a direct interest warranting their intervention. Kirkby v. Public Service Commission, 320 Mich 608. In King v. Emmons, 283 Mich 116 (115 ALR 564), we held that a motion to dismiss a bill of complaint because plaintiff was not a proper party would not be granted, where one who was unquestionably a proper party had intervened as plaintiff. Here intervenors are real parties at interest; their rights as competing carriers are directly affected, entitling them to a judicial determination in the premises. As relates to Strange, that right of judicial review- could not be terminated nor defeated by Koss’s death. The language of article 5, § 20 of the motor vehicle car riers’ act (CL 1948, § 479.20 [Stat Ann 1949 Cum Supp § 22.585]), providing that “Any party to a cause before the commission * * * may * * * appeal” is not to be so narrowly construed as to deny to a real party at interest the right to appeal from a commission order, granted upon an application and hearing of which such interested party had no statutory notice, merely because he was not present nor represented at the hearing before the commission. To so hold would run contrary to the intent and purpose of the entire act, which carefully guarantees to interested parties the right to notice, to hearing, and to make objections, redress being afforded thereunder by way of appeal. If the appeal provisions of section 20 are exclusive, as defendant Hawkins contends, but unavailable to one who was not present or represented before the commission, then, by the simple expediency of failing to give statutory notice, the rights of interested parties, competing carriers, sought to be protected by the act, could be subverted. We hold that defendant Hawkins’ motion to dismiss before the matter was transmitted back to the commission was properly denied.
Defendant Hawkins contends that the court may not transmit to the commission for further consideration a copy of the evidence introduced before the court when it consists solely of evidence introduced by defendant. He relies upon the provisions of section 20 in effect when before the trial court (since amended) as follows:
“If, upon the trial of such action, evidence shall be introduced by the complainant which is found by the court to be different from that offered upon the hearing before the commission, or additional thereto, the court, before proceeding to render judgment * * * shall transmit a copy of such evidence to the commission.”
In the instant case plaintiffs’ bills of complaint alleged certain facts, admitted by defendants’ answers, and at tbe hearing plaintiffs’ counsel elicited, upon cross-examination of defendants’ witnesses, certain testimony, tbe character of which allegations and testimony was different from, and in addition to, that offered before the commission. Tbe court acted within tbe confines contemplated by tbe statute in transmitting tbe same to tbe commission.
Affirmed, with costs to plaintiffs.
North, C. J., and Butzel, Carr, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred.
See OL 1948, § 477.5 (Stat Ann § 22.552) —Reporter. | [
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Boyles, J.
This case calls for decision whether’ Act 54, PA 1951, is subject to a referendum under the provisions of the Michigan Constitution (1908)^ art 5, § 1. A sufficient number of 'petitions have beep filed with the secretary-óf State to require a refer^ endum. Petitions, have been filed in this Court for a writ of prohibition directed to; the State board of canvassers, to prevent the certification -of said ac^ to the electors on a referendum.- We’ directed the board of canvassers to show caiise- why said writ should not issue, and stayed all' proceedings until further order of the; Court, Various cities and other interested parties have been .granted leave to inter-1 vene and have filed helpful briefs. j The question has been submitted.
Said Act 54, PA 1951, in ch 1, § 2, increases the gasoline tax †from 3 cents to 4í’ cents -per gallon, and in ch 2, § 22, increases the’diesel motor fuel tax from 5 cents to 6 cents per gallon." These increases are opposed by the petitioners whor are seeking the-referendum. Article 5, § 1, of 'the-Michigan Constitution (1908), essential to decision here, providing for a referendum on'the legislative act, reads: !■
“The legislative power of the State -of Michigan-is vested in a senate and house of representatives;’ but the people reserve to themselves the power to. propose legislative measures, resolutions and laws.; to enact or reject the same at the polls independently of the legislature; and to approve-or reject at the polls any act passed by the legislature, except acts malting appropriations for State institutions .and to, meet deficiencies in State funds.”- -].
The italicized part, supra, is relied on by plaintiffs who have petitioned this Court for the writ, as a bar’ to a referendum. Plaintiffs claim that Act 54, PA 1951, makes appropriations for State institutions. Chapter 1, § 18b of said act, which plaintiffs claim appropriates the money collected under the act for State institutions, provides:
“All sums of money received and collected under the provisions of this act, except the license fees provided for herein, shall be deposited in the State treasury to the credit of the motor vehicle highway fund and, after the payment of the necessary expenses incurred in the enforcement of this act, are hereby appropriated, allocated, and apportioned therefrom to the State highway department, the several county road commissions, and incorporated cities and villages of the State in the manner and for the specific highway purposes prescribed by law.”
Thus, the question before us narrows down to whether section 18b of said act, hereinbefore quoted, is án appropriation for State institutions. If so, the act is not subject to a referendum. It expressly appropriates the money collected' under the gasoline tax and diesel motor fuel tax, to the State highway department, the several county road commissions, and the incorporated cities and villages. Are they State institutions.?
In Detroit Automobile Club v. Secretary of State, 230 Mich 623, this Court held that the State highway department is a State institution. It’reads:
“Considering these constitutional exceptions in the order stated, the first question to be determined is whether this is an act making- appropriations for a State institution. It appropriates money for the use of the highway department in constructing and maintaining the highways of the State. Is the highway department a State institution within the meaning óf the Constitution? The question is not. solely whether the highway department may be correctly termed a State institution, but rather whether, in view of the functions which it exercises, it comes within the meaning of that term as used in the Constitution. It is not difficult- to determine what the framers of the Constitution had in mind. It is clean that by permitting immediate effect to be given to appropriation acts for State institutions, it was their purpose to enable the State to exercise its various functions free from financial embarrassment. The highway department exercises State functions. It was created by the legislature for that purpose. It must have money to carry on its activities. Without the money appropriated by this act for its immediate use, it would cease to function. The constitutional purpose was to prevent such a contingency. And so we hold it a fair conclusion that the framers of the Constitution used the term State institutions in a broad sense intending to include all organized departments of the State to which the legislature had delegated or should delegate the exercise of State functions. '* * *
“We are of the opinion that the State highway department is a State institution within the meaning of the Constitution, and that, therefore, this aet, which makes an appropriation for its use, is not subject to the referendum.”
In Moreton v. Secretary of State, 240 Mich 584, the Court held that an appropriation of the money received from the gasoline tax for highway purposes, under substantially the same conditions as the 1951 act now challenged, was not subject to referendum-, The act there under consideration likewise provided that the money received under the act be deposited in the State treasury to ;the credit of the State highway fund, and appropriated therefrom (in part) to be paid to the several county treasurers, and to each city and village within which State trunk line high ways were contained, for highway purposes. The Court said: .
“The question is whether the appropriations provided in the act are for State institutions or to meet deficiencies in State funds. It is clear that except as to subdivisions c and c-1, of section 19, the act makes appropriations for State institutions in the constitutional'sense as held by this Court in Detroit Automobile Club v. Secretary of State, 230 Mich 623. The only meritorious controversy revolves around subdivisions c and c-1. We will therefore confine our discussion on this feature of the case to those ■sections of the law which make appropriations to the several counties; cities, and villages of the State for highway purposes. * * *
. “It is a part of the legislative highway policy, as shown by this and previous legislation, to enlist the aid of the counties in carrying on the elaborate program of road building to which it is committed. While so engaged; in building roads for State purposes, under the direction and supervision of the State administrative board, with money supplied by the State at large, are the counties not exercising State functions? ’If they are, the money appropriated for that purpose is for State institutions within the meaning of the Constitution. It ought to be kept in mind that this is not a case where the counties are to build county roads as is ordinarily done ''with local appropriations. Here the State at large ■ furnishes the money and selects the counties as the agencies through which it is to he expended for State purposes. So, to bring' these appropriations within the constitutional-exemption from referendum, it is ¡not necessary to .hold that the counties are State institutions. They áre not, but, in respect to these appropriations., they are cooperating with the State in "exercising State functions. They are not acting 'independently;, hut ás .agencies of the State in ex- ' pending the State ■ mfoney for State-purposes. The building and maintenance of good public roads have become important State' functions in ’ Michigan. These appropriations were made to enable it to function in that regard, and, being made for that purpose,, they are not subject to referendum. To hold otherwise would be to give the words ‘State institutions’ such a restricted meaning as to defeat the constitutional purpose, which is to save the State from financial embarrassment in exercising any of its State functions. And, in our view, it makes no difference whether it exercises them directly or through other organized agencies selected for that purpose. Nor does it matter whether the appropriation goes into the county treasury or is retained in the .State highway fund by the State treasurer, so long as it is used for highway purposes under the direction and super-, vision of the State administrative board.
“For these reasons, we hold that the act is not subject to referendum.” " . - •
The State highway department, the several county road commissions and the incorporated cities arid villages are State institutions within the purview of the Constitution and legislative intent of said Act 54, PA 1951.
The defendants’ return to our order to show cause does not contest, and they have not filed a brief. Counsel for the intervening defendant asserts that even if it shquld be held that the State highway department and the counties, cities and villages who’ receive highway funds from State appropriations,, are State institutions, still we should hold that Act 54 does not make an appropriation. While chapter 2, § 34, of said Act 54 appropriates the money collected under the act for the same purposes considered by the Court in the Moreton Case, supra, said defendant asserts that Act 51, PA 1951, not Act 54, actually makes the appropriation. Plaintiffs, pointing to the provision in Act 54 stating that the moneys received under said act are appropriated and allocated from the State treasury to the State high way department, counties, cities and villages, “for the specific highway purposes prescribed by law,” assert that Act 54 makes the appropriation, while certain other acts, enacted and effective at the same-time, designate the manner in which, and the specific highway purposes for which, the gasoline tax and diesel motor fuel tax shall be used. ■
Acts 51 to 55, inclusive, PA 1951, to which plaintiffs thus point, constitute a comprehensive system for the collecting of specific taxes on motor vehicles and motor vehicle fuels, the allocation of funds therefrom and the use thereof for highway purposes. They were all enacted by the 1951 legislature and became effective at the same time. Construed together, they provide for levying the specific taxes and the use thereof for-highway purposes, the manner in which the said appropriations for highway purposes are allocated to said institutions, and the specific highway purposes for which they are to be used by said institutions. Act 51 allocates said funds, after payment of necessary expenses, as follows: 44% to the State highway department, 37% to the several county road commissions, and 19% to incorporated cities and villages which contain State trunk line highways; and declares that all of it shall be used only for highway purposes.
Acts in pari materia must be considered and construed together. Act 54, levying the specific tax and appropriating it to these institutions “for the specific highway purposes prescribed by law,” necessarily points directly to those other acts for the apportioning of said moneys and for directing the manner of its use. If considered separately,- without construing them together, they would be unworkable. Furthermore, if Act 51, instead of Act 54, appropriates these moneys, then Act 51 as well as Act 54 would fall; because Act 51 expressly provides (section 23) that it shall not take effect unless Act 54 also be enacted into law and become effective. Act 51 could not operate without Act 54, being without the funds appropriated by said Act 54.
In State Highway Commissioner v. Detroit City Controller, 331 Mich 337, the Court held that Act 51 is an act for the allocation and distribution of highway moneys collected under Act 54. It further held that these acts were in pari materia, to be considered together (p 358) :
“It is the usual rule of statutory construction that apparently conflicting statutes should be construed, if possible, to give each full force and effect. As we said in Rathbun v. State of Michigan, 284 Mich 521, 544:
' “ ‘ “Statutes in pari materia are to be construed together, and repeals by implication are not favored. The courts will regard all statutes upon the same general subject matter as part of one system, and later statutes should be construed as supplementary or complementary to those preceding them.” State v. Omaha Elevator Co., 75 Neb 637, 648 (106 NW 979, 110 NW 874).’ * * *
“Had the legislature not again spoken on the subject, the foregoing discussion would have been sufficient, but in 1951 several acts were passed which materially affected the amounts of vehicular taxes and the method of distribution. We have reference to PA 1951, Nos 51 through 55. Only PA 1951, No 51, need concern us. It created the motor vehicle highway fund, the successor to the State highway fund. Rather than provide for piecemeal distribution of the moneys in the fund, as had been done previously, the act set up a comprehensive system of allocation to the commissioner and the various subordinate governmental units.”
See, also, Reed v. Secretary of State, 327 Mich 108, where the Court said:
“Statutes in pari materia should be construed together, particularly when, as here, they were passed or reenacted in the same legislative session and approved by the governor on the same, day.”
We hold that Act 54 appropriates the proceeds received in the State treasury from the specific tax imposed by Act 54 upon the sale or use of motor vehicle fuels.
Various briefs have been filed to indicate the importance of the increase in the gasoline tax to the intervening cities for highway purposes, and the serious consequences which would follow7 an upset of the act. As to that, the advisability or necessity for the increase is a legislative function, outside the jurisdiction of the Court. We need not comment on the propriety of the enactments.
Finally, counsel for the intervening defendant contends that the reference in Act 54 to other acts for the allocation, distribution and manner of use of the money collected under said Act 54 violates article 10, § 6, of the Michigan Constitution (1908), wherein it provides:
“Every law which imposes, continues or revives a tax shall distinctly state the tax, and the objects to which it is to be applied; and it shall not be sufficient to refer to any other law to fix such tax or object.”
This contention has been repudiated by the Court in considering a situation quite parallel to the present case. In Lake Shore Coach Lines, Inc., v. Secretary of State, 327 Mich 146, the Court had under consideration PA 1947, No 319, imposing a specific tax upon the use of diesel motor fuel to propel vehicles upon the highways of the State. The Court said:
“Plaintiffs further claim that section 14 of the act in question violates article 10, § 6, of the Michigan State Constitution, which provides as follows:
■ ■ “ ‘Every law which imposes, continues or revives a tax shall distinctly state the.tax, and the objects to which it is to be applied; and it shall not be sufficient to refer to any other law to fix such tax or object.’
“The portion of the act in question which is claimed as offending against the section of the Constitution just cited is as follows (CL 1948, § 207.214 [Stat Ann 1947 Cum Supp § 7.339 (14)]):
“ £A11 sums of money received and collected by the secretary of State under the provisions of this act, except the license fees herein provided, shall be deposited in the State treasury to the credit of the State highway fund, and after the payment of the necessary expenses incurred in the enforcement of this act shall be used, disposed of, and appropriated in the manner provided for and to the uses and purposes provided in Act No 150 of the Public Acts of 1927, as amended.’
■ “Plaintiffs claim that because of the reference to PA 1927, No 150, as amended, the act contravenes the Constitution by making PA 1927, No 150, as amended, an essential part of the act under consideration, PA 1947, No 319. * * * •
“When we apply the reasoning in the Moreton Case [240 Mich 584], above cited, it becomes apparent that section 14 of Act No 319 sufficiently sets forth the objects to which the tax money realized shall be applied by prescribing the deposit in the State highway fund. Article 10, § 6, Michigan State Constitution, does not forbid a reference to some other act, but does state that the tax and the objects to which it shall be applied shall be distinctly stated in the act. Act No 319 does sufficiently state the tax and the objects of the tax without the reference following to the manner of the disposition of the funds, which latter under the ruling in the Moreton Case just cited, and so far as concerns compliance with article 10, § 6, may be treated as though unnecessary and superfluous. The highway fund is a well recognized and very important fund in State affairs. When the legislature said that the diesel motor fuel tax in question should be deposited in the State treas ury to the credit of the State highway fund, there could be no doubt of the general object of the diesel motor fuel tax in question. Plaintiffs do not point out nor claim that PA 1927, No 150, as amended, provides a different object than the State highway fund.”
See, also, In re Appeal of Newton Packing Co., 279 Mich 139.
We conclude that said Act 54 imposes the specific tax upon the sale or use of motor vehicle fuel upon the public highways and appropriates the money collected therefrom to the use of State institutions for highway purposes. The legislative intent is plain that the gasoline tax, increased to 4£ cents per gallon and the diesel motor fuel tax increased to 6 cents per gallon, by. Act 54, PA 1951, is therein appropriated for highway purposes, to be allocated and used as such for such specific highway purposes as may be prescribed by other acts.
Act 54, PA 1951, is not subject to a referendum and the writ will issue. No costs, a public question being involved.
North, C. J., and Dethmers, Butzel, Carr, Bushnell, Sharpe, and Reid, JJ., concurred.
PA 1927, No 150 (CL 1948, §-207.101 et séq. [Stat Ann 1950 Rev, § 7.291 et seq. ]).
PA 1947, No 319 (CL 1948; •§. 207.201.et seq. [Stat Ann 1950 Rev § 7.339(1) etseq-l). '
CL 1948, § 207.118b, as added by PA 1951, No 54 (Stat Aim. 1951 Cum Supp § 7.308 [2] ) .—Reporter. | [
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] |
BIRD, J.
On the evening of May 12, 1912, plaintiff was a passenger on one of defendant’s interurban cars entering Muskegon. The place where he intended to leave the car was at its regular stopping place, at the intersection of Walton and Pine streets. Walton street extends east and west and intersects Pine street at right angles, and the usual stopping place of defendant’s cars was on Walton street close to the west line of Pine street. When the car was a block west of Pine street, it began to lessen its speed, and plaintiff left his seat in the car and went out on the platform and down on the last step to be ready to get off when the car stopped. While in this position, with his hands holding the handrails, the car reached its usual stopping place, and when on the point of stopping, the car was suddenly started in response to a signal from the conductor. In starting, the car lurched forward, and, in consequence thereof, plaintiff was thrown to the ground and injured.
When plaintiff had concluded his case, the trial court directed a verdict for the defendant, on the ground that no actionable negligence against the defendant had been shown, and, further, that plaintiff assumed the risk of going onto the platform and steps while the car was in motion. These conclusions of the trial court give rise to two questions:
(1) Was defendant guilty of negligence?
(2) Did plaintiff assume the risk of being injured by going upon the platform and steps while the car was in motion?
1. If plaintiff had been thrown from his position on the step by reason of an acceleration of the car in order to reach its usual stopping place, no recovery could be had, under the rule laid down in Etson v. Railway Co., 110 Mich. 494 (68 N. W. 298). If the car had come to a stop at the usual stopping place, and then suddenly started while plaintiff was in the act of alighting, the question . of defendant’s negligence would have been one for the jury under the rule in Burke v. Electric Co., 147 Mich. 172 (110 N. W. 524). In the case at bar, plaintiff was in position to alight, and the conductor was aware of it. After the car had reached its usual stopping place, and had nearly come to a stop, it was suddenly started on signal from the conductor. These circumstances bring the case within the principle of the holding in the Burke Case. If it were necessary for any reason to depart from the usual custom of stopping at that point, it was the duty of defendant to warn plaintiff. But it is the contention of defendant that the car was 16 feet away from its usual stopping place when its speed was accelerated, and that it was accelerated for the purpose of driving it to its usual stopping place, and counsel devotes much time in their brief to show that plaintiff’s testimony is in accord with that contention. We have examined the testimony of both the plaintiff and Nellie Voss, the only witnesses who testified upon that subject, and we are persuaded that their testimony was such that the jury would have been justified in finding that the car had already reached its usual stopping place before its speed was accelerated. We are therefore of the opinion that the question of defendant’s negligence should have been submitted to the jury.
2. Plaintiff was not necessarily negligent in leaving his seat and going out upon the platform while the car was in motion. Etson v. Railway Co., supra. His position upon the platform and steps was not an uncommon one. It is a custom -indulged in frequently by passengers on such cars as they are nearing their usual stopping places, and plaintiff’s going upon the platform on this occasion appears to have had the consent of the conductor, as he stood aside from the doorway to allow him to pass out. Whether plaintiff’s conduct in going on the platform increased the hazard, and, if it did, whether that was the proximate cause of his injury, were questions of fact for the jury.
The judgment of the trial court is reversed, and a new trial ordered.
McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred. | [
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Ostrander, J.
(after stating the facts). I have searched the record in vain for evidence of the right of defendant, appellant, to occupy the premises after the expiration of the terms created by the leases. Nothing is clearer than that the occupancy which was continued was in opposition to the expressed will of the landlord. In the face of refusals to create a new term, while unlawfully holding the premises, after the expiration of both terms, defendant tendered, and a servant of the landlord, inadvertently and without authority, received, money equal in amount to a quarter’s rent. Knowledge of this payment appears not to have been brought home to any one in authority in the premises until the quarterly period was nearly ended. The money was not returned to defendant. There is no other act, or failure to act, which can be pointed out as creating any right of defendant to continue in possession. It is inferred that the pur pose of defendant in making the payment was surreptitiously to acquire a position of apparent right. No notice was required, upon the expiration of the terms, to entitle plaintiff to possession of the premises. However, one was given, and the position of plaintiffs as expressed therein was not thereafter changed. On October 21, 1913, another formal notice was served. It repeated, merely, the conclusions stated in the earlier notice, and was in accord with oral communications repeated during the interval. It is therefore not upon a question of the authority of the persons signing these notices so much as a question of a showing of any right on the part of defendant to occupy the premises that the validity of the judgment depends. Apparently, it was in this view of the case that the circuit judge advised the jury there was no question for them to determine and directed a verdict for plaintiffs. He committed no error in so doing.
Assuming the plaintiffs are entitled to possession of the premises, no reason is given for refusing them the right to proceed in the courts of the State to recover possession. There is attempted no interference by the State court with the jurisdiction of the Federal court over property in the hands of its receivers, or with funds in the control of the Federal court. Defendant’s right while it continued was a contract right, respected by the Federal court and by its receivers. When this right expired, the right of the receivers to possess and deal with the property accrued. In face of an unlawful detention they needed a remedy. They have ratified the proceeding in the State court which their agent instituted. In principle, the case cannot be distinguished from an action of replevin.
The judgment is affirmed.
McAlvay, C. J., and Brooke, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred. | [
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MOORE, J.
This case is now here by writ of error. After it was brought here, the appellant made a motion to dismiss the writ, and also to dismiss the cause and all proceedings thereunder, and to decide the plaintiff was without authority to proceed further with this cause, or to attempt to collect the judgment of the lower court. We were of the opinion that it would be inconsistent to say, in a motion to dismiss, that we were without jurisdiction in the case, and at the same time exercise jurisdiction by passing upon the effect of the judgment rendered in the same case in the trial .court, and, as the motion could not be granted in toto, that it should be denied. Since that order was made, the case has been heard and submitted in this court, and many of the questions considered upon the motion to dismiss are here again, so that it would be very helpful to refer to the opinion found in 169 Mich. 332 (135 N. W. 265). In that opinion it is held that the State is a party to the litigation. It is also held that it was competent for the State to withdraw, at any time, its consent to be sued, without impairing the obligation of contracts. The effect of such withdrawal, upon a judgment rendered in the circuit court before the withdrawal legislation took effect, when said judgment had been removed to this court by writ of error, was left undecided.
The question is now before us. Counsel for appellees say in substance that they had a cause of action, growing out of a contract which they brought into court, and upon which they obtained a judgment in the circuit court, conferring upon them a vested right, and that, while the repealing clause may affect the right of this court to proceed, it does not affect the judgment in the court below or their right to collect it. Much reliance is placed by the appellees upon the case of McCullough v. Virginia, 172 U. S. 102 (19 Sup. Ct. 134). We think that case distinguishable from the instant case. It is a case in the Federal courts. Virginia had passed, in 1871 (Laws 1870-71, p. 378), an act authorizing the issue of bonds and providing, among other things:
“The coupons -shall be payable semi-annually and be receivable at and after maturity for all debts, taxes, dues, and demands due the State, which shall be so expressed on their face.”
These bonds were issued, and some of them became the property of the plaintiff. Later the State repealed that part of the act making the matured coupons receivable for taxes, and it was held that this impaired the obligation of contracts, within the meaning of the Constitution. It is true that the question was raised that the State of Virginia had withdrawn its consent to be sued by a repealing statute after judgment in the trial court, and therefore the whole proceeding abates. Justice Brewer said:
“But the judgment in this case did not go upon the effect of that repealing statute. It was not noticed in the opinion, and the decision was not that the suit abate by reason of the repeal of the statute authorizing it, but that the judgment of the trial court be reversed, and a new judgment be entered against the petitioner for costs. If the action had abated, it was error to render judgment against him for costs.”
It is true that later in the opinion it was stated:
“It is not within the power of a legislature to take away rights which have been once vested by a judgment. Legislation may act on subsequent proceedings, may abate actions pending, but when those actions have passed into judgment the power of the legislature to disturb the rights created thereby ceases.”
If this language is not dictum, and if it is regarded as saying that a judgment in a trial court pending a writ of error to an appellate court creates a vested right, then we think it must be said the opinion is against the great weight of authority, as will appear later.
Counsel also cite and rely upon Town of Strafford v. Town of Sharon, 61 Vt. 126 (17 Atl. 793, 18 Atl. 308). A reading of the opinion in that case will show it is not controlling.
In 26 Am. & Eng. Enc. Law (2d Ed.), pp. 747, 748, it is said that the general rule—
“may be stated to be that the repeal of a statute, in the absence of a saving clause, necessarily divests and destroys all inchoate interests which have arisen under it, while it leaves unimpaired those which either have become invested or, though connected with it, have an independent existence. * * * Though it is, as a general rule, the province of an appellate court to inquire only whether the judgment appealed from was in accordance with law at the time it was rendered, yet if, pending the appeal, the law which authorized the judgment is repealed, the judgment must be reversed.”
It is also said:
“If a law conferring jurisdiction is repealed, expressly or by implication, without any reservation or saving clause, the fight to exercise the jurisdiction is lost, and proceedings pending under it fall with the law.” Pages 751, 752, Id.
“Even the recovery of a judgment for a statutory penalty or forfeiture does not give a vested right thereto, where an appeal has been taken, because the judgment, under such circumstances, is not immediately enforceable; and therefore the repeal of the statute pending the appeal will necessitate the reversal of the judgment and the dismissal of the action.”
In 36 Cyc. p. 915, it is said:
“The consent of a State to be sued, being voluntary, may be withdrawn or modified by the State whenever it sees fit, even though pending suits may be thereby defeated; and, upon the repeal of the statute authorizing the suit, the court in which the suit is pending can proceed no further therein.”
In Vance v. Rankin, 194 Ill. 625 (62 N. E. 807, 88 Am. St. Rep. 173), it is said:
“ ‘It is well settled that, if a statute giving, a special, remedy is repealed without a saving clause in favor of pending suits, all suits’ must stop where, the repeal finds them. If final relief has not been granted, before the repeal went into effect, it cannot be after." South Carolina v. Gaillard, 101 U. S. 433. ‘If a case is appealed, and, pending the appeal, the law is' changed, the appellate court must dispose of the case under the law in force when their decision is rendered.; Cooley’s Const. Lim. (2d Ed.) '381, and note. The effect of the repeal of a statute is' to obliterate the statute repealed as completely as if it had never been passed, and it must be considered as a law that never existed, except for the purposes of thdse actions or suits which were commenced, prosecuted, and concluded while it was an existing law. Ex parte McCardle, 7 Wall. 514; Key v. Goodwin, 4 Moore & P. 341; Thorne v. San Francisco, 4 Cal. 165; Musgrove v. Railroad Co., 50 Miss. 677; Town of Belvidere v. Railroad Co., 34 N. J. Law, 193. Pending judicial proceedings, based upon a statute, cannot proceed after its repeal. Gilleland v. Schuyler, 9 Kan. 569; Wade v. St. Mary’s School, 43 Md. 178; McMinn v. Bliss, 31 Cal. 122; State v. Daley, 29 Conn. 272. This rule holds true until the proceedings have reached a final judgment in the court of last resort, for that court, when it comes to pronounce its decision, conforms it to the law then existing, and may therefore reverse a judgment which was- correct when pronounced in the subordinate tribunal from whence the appeal was taken, if it appears that pending the appeal a statute which was necessary to support the judgment of the lower court has been withdrawn by an absolute repeal. Hartung v. People, 22 N. Y. 95; Hubbard v. State, 2 Tex. App. 506; Atwell v. Grant, 11 Md. 104; United States v. Peggy, 1 Cranch, 103; Mayor of Annapolis v. Maryland, 30 Md. 112. In Musgrove v. Railroad Co., supra, a judgment erroneous when pronounced was affirmed because the subsequent repeal of a statute freed it from error. In Keller v. State of Maryland, 12 Md. 323 (71 Am. Dec. 596), the court having affirmed a judgment in ignorance of the repeal of a statute pending the appeal, afterwards at the same term; on its attention being called, to the repeal, struck out the order of affirmance and in its place entered a judgment of reversal. In Wikel v. Board of Com’rs of Jackson County, 120 N. C. 451 (27 S. E. 117), which.was a petition for mandamus to compel the county commissioners to build a bridge and levy a tax for that purpose, as required by the act of 1895, which.act, pending an appeal from a judgment granting a peremptory writ was repealed it was held that the repeal of such act destroyed the subject-matter of the action, and that the suit should abate.
“The repeal of a statute conferring jurisdiction takes away all right to proceed thereunder, unless it is expressly saved (Illinois, etc., Canal v. City of Chicago, 14 Ill. 334), and it carries with it all prosecutions pending thereunder (Wilson v. Railway Co. 64 Ill. 542 [16 Am. Rep. 656]), and, except for the purposes of such suits as are begun, prosecuted, and concluded while it is an existing law, the statute repealed is as if it never existed (Eaton v. Graham, 11 Ill. 619; Van Inwagen v. City of Chicago, 61 Ill. 31; Menard County v. Kincaid, 71 Ill. 587; Town of Jefferson v. People, 87 Ill. 503; Holcomb v. Boynton, 151 Ill. 294 [37 N. E. 1031]). In Van Inwagen v. City of Chicago, 61 Ill. 34, it is said: ‘The doctrine is that inchoate rights, derived under a statute, are lost by its repeal, unless saved by express words in the repealing statute, and unless those rights have become so far perfected as to stand independent of the statute; * * * that is to say, executed. * * * The effect of a repealing statute is to obliterate the prior law as completely from the records as if it had never passed, and it must be considered as a law that never existed, except for the purpose of those actions or suits which were commenced, prosecuted, and concluded while it was an existing law.' In Holcomb v. Boynton, 151 Ill. 297 (37 N. E. 1032), the court say: ‘Where a statute is repealed without such saving clause, it must be considered, except as to proceedings passed and closed, as if it had never existed.' ”
See Railroad Co. v. Tennessee, 101 U. S. 337; Railroad Co. v. Alabama, 101 U. S. 832; Baltzer v. North Carolina, 161 U. S. 240 (16 Sup. Ct. 500), and Beers v. Arkansas, 61 U. S. (20 How.) 527.
In a note to Todd v. Landry, 12 Am. Dec. 479, appears the following:
“The effect of the repeal of a statute is To obliterate the statute repealed as completely from the records of parliament as if it had never passed, and it must be considered as a law that never existed, except for the purposes of those actions or suits which were commenced, prosecuted, and concluded while it was an existing law.’ Ex parte McCardle, 7 Wall. 514; Key v. Goodwin, 4 Moore & P. 341; Thorne v. San Francisco, 4 Cal. 165; Van Inwagen v. Chicago, 61 Ill. 31; Musgrove v. Railroad Co., 50 Miss. 677; Town of Belvidere v. Railroad Co., 34 N. J. Law, 193. Pending judicial proceedings, based upon a statute, cannot proceed after its repeal. Gilleland v. Schuyler, 9 Kan. 569; Wade v. St. Mary’s School, 43 Md. 178; McMinn v. Bliss, 31 Cal. 122; State v. Daley, 29 Conn. 272. This rule holds true until the proceedings have reached a final judgment in the court of last resort, for this court, when it comes to pronounce its decision, conforms it to the law then existing, and may therefore reverse a judgment which was correct when pronounced in the subordinate tribunal whence the appeal was taken, if it appears that, pending the appeal, a statute which was necessary to support the judgment of the lower court has been withdrawn by an absolute repeal. Hartung v. People, 22 N. Y. 95; Hubbard v. State, 2 Tex. App. 506; Montgomery v. State, 2 Tex. App. 618; Shepard v. State, 1 Tex. App. 522 [28 Am. Rep. 422]; Atwell v. Grant, 11 Md. 104; Price v. Nesbitt, 30 Md. 263; United States v. Peggy, 1 Cranch, 103; Mayor of Annapolis v. Maryland, 30 Md. 112. In one instance a judgment erroneous when pronounced was affirmed, because the subsequent repeal of the statute freed it from error. Musgrove v. Railroad Co., 50 Miss. 677. Another court having affirmed a judgment in ignorance of the repeal of a statute, pending the appeal, afterwards, at the same term, on its attention being called to the repeal, struck out the affirmance, and in its place entered a judgment of reversal. Keller v. State, 12 Md. 323 [71 Am. Dec. 596].” People v. Bank, 159 Cal. 65 (112 Pac. 866, 37 L. R. A. [N. S.] 934, Ann. Cas. 1912B, 1148).
It would seem to be clear that after an appeal is taken from the circuit court to the Supreme Court, until the appellate court has spoken, it cannot be known whether the judgment will be affirmed or reversed. In Baumgarth v. Insurance Co., 159 Mich. 207 (123 N. W. 592), it is held that the issuance of a writ of error from the Supreme Court is a continuation of the original cause, and not a new proceeding. How can it then be said there is a vested right created by the judgment in the trial court? Instead of it being true that the litigation is ended, we think it must be said that the litigation is yet pending.
Under the facts disclosed by this record, applying the principles of law as stated in the authorities from which we have quoted, we are constrained to reverse the judgment. As this result has been brought about by legislation on the part of the State, enacted after the judgment in the court below was obtained, we decline to give either party costs.
Judgment is reversed, and no new trial is granted.
BROOKE, C. J. After a careful examination of the record in this ease, I am satisfied that reversible error was committed upon the trial. We held (McDowell v. Fuller, 169 Mich. 332 [135 N. W. 265]), that this action is one against the State. Upon the trial the plaintiff was permitted to introduce testimony bearing upon the attempt upon the part of Wallerstein to bribe a member of the board of control, one Locke. Testimony was received over objection relative to the claimed conversations which took place in the city of Jackson with reference to the alleged bribery. With reference to this testimony, the attorney general interposed the following objection:
“We wish the record to show that we object to this testimony on the ground it was subsequent to cancella tion of the contract by the board; that it is irrelevant, immaterial, and incompetent; and there is no testimony upon which can be based a claim for damages against the State and has no tendency to show bad motives on the part of the board as a board and would not affect their action legally.”
I regard it as an elementary principle that the State is not to be held estopped by the acts or conduct of its officers through waiver, acquiescence, negligence, or fraud. Crane v. Reeder, 25 Mich. 303; Manthey v. Vincent, 145 Mich. 327 (108 N. W. 667); Olds v. Commissioner of State Land Office, 150 Mich. 134 (112 N. W. 952); and State v. Land Co., 160 Mich. 702 (125 N. W. 770). Where the acts of the official are not within the scope of his authority, they are not official acts, and the State is not bound thereby. The State is not liable for the torts of its officers, though committed in the discharge of official duties. 26 Am. & Eng. Enc. Law (2d Ed.), pp. 479, 480, and 481. See, also, People v. Brown,, 67 Ill. 435, and State v. Brewer, 64 Ala. 287.
The basic question involved in the controversy was whether the State was justified in declaring the so-called Wallerstein contract forfeited. In his instructions to the jury, the learned trial judge used the following language:
“This testimony [with reference to the bribery of Locke]_ was admitted for you to consider in connection with the question as to whether or not there was good cause for canceling the Wallerstein contract. If you are able to say from the evidence, without reference to any claim of fraud or unlawful motive on Mr. Locke’s part, that the receiver, Mr. Hatch, did not as a matter of fact, no matter for what cause or reason, employ the men assigned by the prison authorities to the Wallerstein contract, and that in considerable numbers the men so assigned and ready to be used were not used, and this was of frequent occurrence, or such disuse was prolonged, so that either the num ber so not used or employed was considerably in excess of the number suffered by the prison authorities to be in idleness from time to time before Hatch’s receivership beginning May 2, 1903, or if, while the number not used and necessarily remaining idle, even if not much or any in excess of what had been before customarily permitted on occasion to remain temporarily idle, yet such idleness became more prolonged, or of much more frequent occurrence, so that there was a sensible increase of care and responsibility thrown upon the prison authorities on that account, that the work of enforcing or maintaining discipline was more difficult, if there was a perceptible increased interference with discipline, or the. warden was to a greater extent than had been customary theretofore prevented from carrying into effect the sentences of the court imposing hard labor, then there was good cause for declaring the contract broken by Mr. Hatch, who was then charged with its performance as receiver of Wallerstein & Co., and the prison authorities had good cause for determining not to perform any longer on their part, no matter what corrupt or improper motive might have actuated Mr. Locke in voting to take advantage of the default of the other party, as I have substantially already said.
“But if you find it doubtful as to the actual facts in respect to whether Hatch, as receiver, was carrying out the Wallerstein contract substantially as completely as the Wallersteins had performed before Hatch was appointed and as they had been suffered to perform, and you think it doubtful whether the board of control had good cause for declaring the contract at an end or for refusing to longer carry it out, then you should consider the charge of fraud brought against Locke, and determine, first, whether it is proved by a preponderance of the evidence on that question, and, if so, whether it was the cause, the efficient procuring cause of the action of the prison board of control, and also the cause of the board insisting upon its action declining to change it. * *
“And I go still further and instruct you that if the number of men not kept at work was' considerably increased over what had been the usual experience when the contractor was going forward under ordinary circumstances, or the men not at work, whether increased in number or not, were kept idle for more frequent time or greater length of time, and there appeared no prospect of immediate change in this condition, the prison authorities might declare this a breach on the part of Wallerstein & Co., or the receiver, and in so doing might, in relying upon that situation as a cause, take into consideration the circumstances in which Wallerstein & Co. were placed, their situation as being in the hands of a receiver in bankruptcy as indicating to the board of control of the prison the likelihood of this condition of default continuing, indications of immediate or early change for the better not being evident, the situation being prospectively prolonged, perhaps indefinitely, and acting in good faith in accordance with its own judgment, as the controlling board, and in reference to such a situation, if that was the situation, it would have the right and it might be its bounden duty to refuse longer to recognize the contract as binding or to suffer further default on the part of the contractor or the receiver.”
It is apparent from the foregoing excerpt, and it becomes even more apparent from an examination of the entire charge, that the jury were permitted, and indeed instructed, to consider the alleged bribery or attempted bribery of Locke and permit it to have weight in determining whether the State was justified in declaring the Wallerstein contract forfeited, and acted in good faith in so doing. It is clear, I think, that the question of the bribery or attempted bribery of Locke was immaterial to the issue. The Wallersteins had either breached the contract in such a manner as to warrant the State in declaring it forfeited, or they had not breached it, in which event the action of the State in forfeiting it was invalid. Good faith on the part of the State in declaring it forfeited would not establish a breach of the contract on the part of the Wallersteins, nor would bad faith on the part of the State in taking this action excuse such breach if, in fact, it existed. It seems very clear to me that the admission of the testimony in question, and the charge of the court in connection therewith, was erroneous and prejudicial to the defendant. If I am right upon this question, it becomes unnecessary to consider the other questions involved, and particularly the one treated in the opinion of Mr. Justice Moore.
Upon the record as it stands in this court, I am of opinion that this court should content itself with an entry of an order reversing the judgment of the court below, for the reason pointed out herein.
McAlvay and Stone, JJ., concurred with Brooke, C. J.
Ostrander, J. The State, through the warden of the Michigan reformatory at Ionia, who acted in pursuance of a statute making him capable in law of suing and being sued in all matters concerning the prison by his name of office, made a contract with plaintiff’s assignor. For an alleged breach of the contract, suit was brought against the warden, was tried in the circuit court for Jackson county, with a jury, resulting in a judgment in plaintiff’s favor of $22,000. The judgment was rendered April 23, 1910. The defendant sought to review the proceedings on error, but the bill of exceptions was not settled until May 25, 1911. By an act approved May 1, 1911, effective July 30, 1911 (Act No. 219, Pub. Acts 1911), the legislature amended the law (1 Comp. Laws, § 2091) in such manner that we held (169 Mich. 332, 334 [135 N. W. 265]), that the right of the warden to sue and be sued was withdrawn. From the manner in which the amendment was made, I must doubt whether a majority of the members of the legislature intended thereby to repudiate the plaintiff’s claim or supposed the law,
as amended, would have- the effect that is now claimed for it. The writ of -error being undecided, the attorney: general moved to dismiss the action and all proceedings in. connection therewith and for- an order determining-that plaintiff is without authority to proceed further to collect his judgment. This motion was denied March 29, 1912. Thereafter the record was printed and was filed June- 8, 1912. The brief of the attorney , general was filed September 4, 1912; a brief for the appellee having theretofore been filed. The brief for the attorney general does not raise the point that the court is without jurisdiction to- examine the errors assigned, or is bound to reverse the judgment because of the amendment to the statute. In January, 1914, in a supplemental brief, and at the hearing, the attorney general contended and contends that the legislation which has been referred to effected a withdrawal of the privilege of the plaintiff to sue the State, violated no contract obligations, and that the action has abated.
In my opinion, the judgment of the circuit court for the county of Jackson, as a judgment, cannot be set aside or avoided by the legislature. I have examined many of the authorities cited in the opinions and annotations which are made a part of the opinion of Mr. Justice Moore. I have found no case which supports the conclusion at which he has arrived. The rights which the plaintiff sought to enforce were not derived from the statute. His remedy against the State was so derived. The. remedy was not taken away until after he had recovered his judgment, until after, according, to the . law of the State, his demand had been liquidated and his right to recover it had become a vested right. He is not attempting to further pursue the remedy. It is the State which is urging that,, because it has sued out a .writ of error to review the judgment, the cause -is pending, and plaintiff is still dependent upon the statute remedy. The question immediately open to the State, in this court, on this appeal, is whether the judgment should have been obtained. If no error was committed, the judgment cannot be disturbed.
When the State enters into business, as an individual may do, it is bound, I think, by the same rules as are individuals with whom it makes contracts. The persons who are intrusted with the management of the State’s private, proprietary, business affairs may do whatever the general agents of any business proprietor may do. If this is so, the State may be estopped by their conduct, may waive strict performance of contracts, and may not profit by their fraud or misconduct.
Whether reversible error was committed in the trial of this cause depends, I think, upon whether incompetent and irrelevant testimony was admitted in the attempt of the plaintiff to prove that the action of the board of control, which terminated the contract which is the foundation for this suit, was taken in bad faith and amounted to a fraud, and whether the court correctly instructed the jury upon that subject. I assume, of course, that the board had not the right to arbitrarily forfeit of terminate the contract, and that plaintiff had the right to prove, if he could, that the attempted forfeiture was arbitrary and fraudulent. It was conceded by counsel for the State, at the trial (record, p. 72), that plaintiff had the right to show improper motives, corrupt motives, on the part of the board in canceling the contract. The situation was a peculiar one. Whether plaintiff was performing the contract according to its- terms- depended somewhat upon the view which the warden and board of control took of the manner in which the men were em ployed, the number employed, and the time they were employed. The men were not free, but were prisoners. Discipline and good order in the institution, as well as the profits to be derived from the labor of the men, were matters to be considered. If a practice or practices, of the contractor, approved for a considerable time and apparently satisfactory to the officials, were later made the ground for declaring the contract relations at an end, especially if no amendment of the practices was first demanded, some foundation would be laid for the claim that the action forfeiting the contract was arbitrary. It is a theory advanced by plaintiff that one member of the board acted corruptly in forfeiting the contract, and testimony was introduced which tended to prove it. It was testimony of conversations with the member and his conduct after the action canceling the contract had been taken.' It affected no other member of the board.' The court advised the jury that they might use this testimony to resolve a doubt, if they had one—
“As to the actual facts in respect to whether Hatch, as receiver, was carrying out the Wallerstein contract substantially as completely as the Wallersteins had performed before Hatch was appointed and as they had been suffered to perform, and you think it doubtful whether the board of control had good cause for declaring the contract at an end, * * * then you should consider the charge of fraud brought against Locke and determine, first, whether it is proved by a preponderance of the evidence on that question, and, if so, whether it was the cause, the efficient, procuring cause of the action of the prison board of control, and also the cause of the board insisting upon its action declining to change it.”
I have said that the testimony referred to has some tendency to prove that one member of the board acted corruptly. It had no tendency to prove that other members acted corruptly, and should have been confined, in the instructions, to its legally probative sphere. And, unless the jury was satisfied that the contract was being substantially carried out by the contractor according, at least, to a method theretofore acceptable to the prison authorities, plaintiff had failed to make out a case and could not be aided by the conduct of Locke, whether it was fraudulent or otherwise. I am impressed that the testimony should not have been received for the purpose for which it was used, and that, with the instruction referred to reversible and extremely prejudicial error was committed.
Whether a new trial ought to be awarded depends, in my opinion, upon whether plaintiff has any other remedy; because I deny the right of the State to enter upon contract relations such as are involved in this suit, at the same time affording the other party a remedy for its breach of the contract, and then withdraw all remedy. There is a remedy for plaintiff other than through the courts, namely, through the board of State auditors. Constitution, art. 6, § 20. This being so, the judgment should be reversed, without prejudice to the right of plaintiff to present his claim to this board.
Steere, J. I am unable to conclude that this court now has any authority to enter upon a review of this case, either for affirmance or reversal. The legislature has spoken and removed by repeal a former statute conferring power to pursue a remedy against the State in its courts, with the result that the repealed statute must be considered as never having existed, except as to actions theretofore prosecuted and concluded. All courts are stripped of jurisdiction to proceed further. Pending actions and all proceedings growing out of them must stop where the repeal finds them.
Legislation having thus withdrawn jurisdiction from the court, its only remaining duty and power in the premises is to dismiss the proceedings because its jurisdiction is gone, as in any other litigation where want of jurisdiction is made manifest.
Kuhn and Bird, JJ., did not sit. | [
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Steere, J.
At the February, 1914, term of the circuit court of Genesee county respondent was tried and convicted of having, on a certain day of the previous month of September, seduced an unmarried woman named Bessie Howk. The offense was charged under section 11694, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 14779), which provides that it shall be a criminal offense punishable by imprisonment or fine for any man to “seduce and debauch an unmarried woman.”
The numerous assignments of error for which a reversal is asked range over and center around the propositions that a verdict should have been directed because the facts proven did not establish the offense charged; because of unwarranted statements by the prosecuting attorney and the attitude of the court in assisting the prosecution during the trial; because of erroneous rulings in the admission and rejection of, testimony; and particularly because of errors in the charge and refusal to give respondent’s requests, in the light of such rulings upon the testimony.
It was and is the claim of the prosecution that an unequivocal promise to marry was the inducement by which the offense was accomplished. It is contended in behalf of respondent that it was, as shown by prosecutrix’s own testimony, at most but a conditional promise to marry her in the event she became pregnant; that seduction cannot be predicated upon such a promise, and a verdict should have been directed for the defense; that, even conceding the testimony raised an issue in that particular, the court erroneously curtailed cross-examination of prosecutrix and failed to properly instruct the jury upon such issue. The last contention calls for serious consideration. We are well satisfied there was testimony in the case tending to prove the essential facts constituting the offense charged, the weight of which was for the jury under carefully guarded instructions, and the court committed no error in refusing to direct a verdict for the defense.
Stated in outline, testimony introduced by the prosecution showed, or tended to show, that at the time of the alleged offense the prosecutrix and respondent both resided in the city of Flint on different streets. He was a recent arrival, and had located in a rooming house on a street in a neighborhood, where there were fortune tellers, living with a woman called “Princess Carlos,” who was practicing the art of palmistry. They represented themselves to their landlady and others as husband and wife. Prosecutrix had been a resident for about two years and was working as a domestic in a private family. She was a woman 26 years of age, who had lived and worked as a domestic in Chicago, Flint, and other places since she was 11 or 12 years old. She was of scant mental vigor and overcredulous, as her manner of testifying and contradictory statements indicate, and is shown to have first met respondent when visiting the neighborhood where he resided to consult a nearby fortune teller named Mann in regard to some of her love affairs. While stopping on the sidewalk to read a sign of a hand on a post she saw respondent on the porch of what proved to be his and Princes^ Carlos’ residence, and he accosted her. Either divining or being informed of her mission, he invited her in to consult the Princess Carlos, who he stated was his mother. She then went in to have a talk with the woman and gave her a dollar for a “reading,” which, it so happened, was interrupted by an officer appearing on the scene and taking the Princess to the city hall. She accompanied the officer and Princess to the steps of the city hall, not knowing, as she states, the Princess was under arrest, and being advised by the officer that she did not have to go, she then went home. In the evening she returned to the house where the reading was interrupted, and found they were not in, but later met respondent on the street and finally went to his boarding house with him. The acquaintance thus begun rapidly ripened into an intimacy resulting in an engagement and her seduction that night. On direct examination she was asked and answered:
“Q. Did he ever take any improper liberties with you?
“A. Yes, in the room. * * *
“Q. Did he ever succeed in having intercourse with you?
“A. Yes, under the promise of marriage, .the very same night.
“Q. Is that the way I understand the matter, he did not succeed in having intercourse with you until after he had promised to marry you?
“A. Yes.
“Q. Would you have yielded to his embraces had he not promised to marry you?
“A. No.”
The record contains much more of her testimony along this line, bearing upon their intimate relations, to the effect that she was not certain whether it was the first night, nor of the date; that she only yielded because of his repeated promises to marry her; that in anticipation of their marriage she gave him her wages; that he explained the absence of his mother by claiming she was in Lansing to get a license for her palmistry; and that their intimacy resulted in her getting in a delicate condition, after which, he disappeared.
Being questioned in cross-examination as to their conversation and promises made by respondent at the time of the alleged seduction, prosecutrix stated that she told him she would not have intercourse with him because she was afraid she would get into trouble; and, being asked if he did not tell her if anything happened he would marry her, she at first answered: “No, he promised to marry me.” When the question was repeated, reference being had to her testimony in justice’s court, after remarking that she might have made a mistake, she answered:
“Yes; he didn’t say that then. He promised to marry me — then told me that afterwards.”
Later attention was called to her testimony taken on the preliminary examination in justice’s court, and, portions of it being read to the effect that it was on account of such conditional promise that she consented to the intercourse, and the following question was finally asked her:
“Q. Now, witness, the agreement with Mr. Carlos and you was, in case you became pregnant he would marry you?”
—which was objected to by opposing counsel “as having been gone over twice and ruled out twice by the court,” whereupon the court said: “That is true. I sustain the objection” — thus ending the inquiry upon that branch of the case.
On behalf of respondent the court was especially requested to instruct-the jury upon the question of a conditional promise, and, amongst others, the following request was presented and refused:
“I further charge you that, if the testimony given by the complaining witness in justice’s court is true and the promise of marriage relied upon in this case was that the respondent should marry prosecutrix should she become pregnant, [it] is not seduction.”
The court, in his charge, recognized the , general rule, but in language which, it is urged, not only failed to advise the jury of its application to this case, but amounted to an intimation that it was of little importance. The portion of the charge where the subject is referred to is as follows:
“Now, our courts have held that it is not necessary even that there should be a promise of marriage in order to constitute the offense charged in this case, seduction, that any deceit or any species of persuasion that leads the mind of the woman astray and leads her from the paths of virtue by some inducement held out to her, the courts hold that is seduction, but they do hold that where it is based purely and only upon a promise to marry in case the prosecutrix should become pregnant, that promise, a bare promise of that kind, will not constitute the offense of seduction. But in this case, if you find beyond all reasonable doubt that this girl was virtuous before that time, and the law presumes that she was, and I do not recall any testimony in this case that she was not, then you further find that she objected to intercourse with this man and stated to him that she would not have intercourse unless he would agree to marry her, and, having made that statement, he then had intercourse with her under a promise that he would marry her, then the offense would be complete.”
In People v. Smith, 132 Mich. 58 (92 N. W. 776), where it is held that a respondent cannot be convicted of seduction when the only inducement to procure the illicit intercourse was a promise to marry the woman if she became pregnant, it is said:
“Such a promise has no tendency to overcome the natural sentiment of virtue and purity. The woman who yields upon such a promise is in no better position than as though no promise whatever had been made. No wrong is done her if she is put in the class with those who commit the act to gratify their desire. She was willing to lose her virtue if some provision was made to conceal its loss.”
The testimony of the prosecutrix made this question a pertinent and important one in the case, upon which the defense was not only entitled to fully examine her, but was also entitled to have the jury fully instructed as to their duty, according as they found the facts on that particular point.
It was shown that prosecutrix testified in her preliminary examination before the justice that respondent had promised, if anything happened to her, in the particular mentioned, he would marry her, and that it was on account of such promise she consented. On the trial she testified that his promise was unconditional; that she might have made a mistake in her previous testimony, but he made the positive promise, and “then told me that afterwards.” The record shows that the defense was allowed to partially examine her upon such apparent contradictions, and then when the direct and legitimate question squarely covering that issue was asked, the court sustained an objection to it on the ground that it had already been gone over twice and ruled out twice by the court, making, according to the statement of the prosecuting attorney and court, in the presence of the jury, three times in all that such inquiry was held inadmissible. The record before us may be incomplete, for it fails to disclose that this question had twice before been asked or ruled upon, but it was. so stated by court and counsel, and further inquiry was stopped by the ruling referred to. With that as the last word in examination of the witness as to- a conditional promise, it cannot be said that a bare statement of the general rule upon the subject in the charge, in the connection it was made, sufficiently advised the jury of its relevancy to the case, and the manner in which it was their duty to consider it when passing upon the testimony. Conceding that in the objection it was intended to say, and the court in its ruling intended to hold, and by what was said all there understood that the subject had been twice before gone over and exhausted to a point where it was within the discretion of the court to restrain annoying and time-consuming repetition (a state of affairs, however, which we cannot find the record discloses), it was nevertheless incumbent upon the court, in view of what had occurred and the testimony before it, to give defendant’s request upon that subject, and to more fully and unequivocally instruct the jury upon that material issue. The line of inquiry to which the rejected question relates was relevant and material under the law of seduction, the question was pertinent and in proper form to be asked upon cross-examination, and upon the face of this record we can discover no reason for its rejection, and are constrained to conclude that the ruling sustaining such objection was prejudicial error.
Of the remaining assignments of error, those which might, under other circumstances, call for serious consideration involve questions not likely to arise upon a retrial, and we, therefore, refrain from discussing them.
For the foregoing reasons we are impelled to the conclusion that the present verdict and judgment of sentence cannot be sustained. They are therefore set aside, and a new trial granted.
McAlvay, C. J., and Beooke, Kuhn, Stone, Osteandee, Bied, and Mooee, JJ., concurred. | [
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Ostrander, J.
The bill filed in this cause asks for the construction of the will of Leonard Rowland, who died in March, 1909, and prays that the fourth clause thereof may be decreed to be invalid. The fourth clause creates what is called a charitable trust for the benefit of dependent children in Oakland county between the ages of 12 and 14 years. The estate con sists of both real and personal property. It is conceded that the provision must fail unless it is saved by, and the trust created can be administered under, Act No. 122, Public Acts of 1907 (4 How. Stat. [2d Ed.] §§10700, 10701), entitled “An act relative to gifts for religious, educational, charitable and benevolent purposes,” which declares:
“Section 1. No gift, grant, bequest or devise to religious, educational, charitable or benevolent uses which shall in other respects be valid under the laws of this State, shall be invalid by reason of the indefiniteness or uncertainty of the persons designated as the beneficiaries thereunder in the instrument creating the sahie, nor by reason of the same contravening any statute or rule against perpetuities. If in the instrument creating such a gift, grant, bequest or devise, there is a trustee named to execute the same, the legal title to the lands or property given, granted, devised or bequeathed for such purposes, shall vest in, such trustee. If no trustee shall be named in said instrument, or if a vacancy occurs in the trusteeship, then the trust shall vest in the court of chancery for the proper county, and shall be executed by some trustee appointed for that purpose by or under the direction of the court; and said court may make such orders or decrees as may be necessary to vest the title to said lands or property in the trustee so appointed.
“Sec. 2. The court of chancery for the proper county shall have jurisdiction and control over the gifts, grants, bequests and devises in all cases provided for by section one of this act. The prosecuting attorney of the county in which the court of chancery shall have jurisdiction and control shall represent the beneficiaries in all cases where they are uncertain or indefinite, and it shall be his duty to enforce such trusts by proper proceedings in the court, but he shall not be required to perform any duties in connection with such trusts in any court outside of this State.”
The act was amended by Act No. 125 of the Public Acts of 1911, but not so as to affect the questions presented here.
The learned trial judge filed carefully considered opinions, sustaining the validity of the legislation and the validity of the will. The bill was dismissed.
It is said in this court, as it was in the court below:
(1) The object of the act is not expressed in the titie; (2) the act is broader than its title, and it is therefore .unconstitutional.
It is also contended that, if the statute is valid, the particular trust is invalid, not because the beneficiaries are indefinite, but because the purpose of the trust is indefinite. The trust is not fully expressed and clearly defined upon the face of the instrument creating it.
In Moore v. O’Leary, 180 Mich. 261 (146 N. W. 661), we had occasion to examine this statute and to determine whether, in view of its provisions, a certain disposition of property by last will could be sustained. The constitutionality of the law was not questioned or considered, and the act itself was not construed.
The statute is like one adopted in the State of New York in 1893, which, when adopted here, had been construed by the court of last resort of that State. The New York chancery courts, in an early day, asserted and exercised a somewhat broad power to administer charitable trusts. And in Allen v. Stevens, 161 N. Y. 122 (55 N. E. 568), in sustaining a bequest, after referring to the earlier doctrine of the courts, it was said of the New York statute of 1893 (Laws 1893, chap. 701):
“Reading the statute in the light of the events to which reference has been made, it seems to me very clear that the legislature intended to restore the law of charitable trusts as declared in the Williams Case; that having discovered that legislative enactment had operated to take away the power of the courts of equity to administer trusts that were indefinite as to beneficiaries, and had declared a permanent charity void unless the devise in trust was to a corporation already formed or to one to be created, it sought' to restore that which had been taken away through another enactment. This is markedly indicated, not only by the absence of details in the statute, which is broadly entitled ‘An act to regulate gifts for charitable purposes.' but also in the brevity of the statute, which confers all power over such trusts and trustees on the Supreme Court and directs the attorney general to represent the beneficiaries in cases Within the purview of the statute, as was the practice in England. Practical effect can be given to the provision that no devise or bequest shall be deemed invalid by reason of the indefiniteness or uncertainty of the persons designated as beneficiaries only by treating it as a part of a general scheme to restore to the courts of equity the power formerly exercised by chancery in the regulation of gifts for charitable purposes, for, in order to ascertain the class of persons who were entitled to the benefits of the trust, the rule formerly in force must necessarily be invoked by which the court ascertained, as nearly as possible, the intention of the testator, by decree adjudged, who were intended to be the beneficiaries of the trust, and directed its administration accordingly.”
We have in this State no body of rules, no affirmation or exercise of power in the equity courts to administer charitable trusts. On the contrary, by a policy more than 100 years old, the doctrine of charitable trusts has been refused in Michigan. Methodist Episcopal Church v. Clark, 41 Mich. 730 (3 N. W. 207); Hopkins v. Crossley, 132 Mich. 612 (96 N. W. 499). See, also, Moore v. O’Leary, supra. In Michigan, trusts for charitable uses have never been distinguished from others, and their validity has always depended upon the rules affecting other trusts. Whether the trust fund was real or personal estate, the object public or private benefaction, the rule here, evidenced by legislation long in force, is the rule of the common law:
“If there be a clear trust, but for uncertain objects, the property that is the subject of the trust is undisposed of; and the benefit of such trust must result to those to whom the law gives the ownership in default of disposition by the former owner.” Morice v. Bishop of Durham, 9 Vesey, 399.
So, also, if the beneficiaries of the trust be uncertain. Stoepel v. Satterthwaite, 162 Mich. 457 (127 N. W. 673). So by our law it is provided that:
“The absolute power of alienation shall not be suspended by any limitation or condition whatever, for a longer period than during the continuance of two lives in being at the creation of the estate, except in the single case mentioned in the next section.” 3 Comp. Laws, § 8797.
Repeatedly the courts have been obliged to enforce this statute to prevent the accumulation of landed estates to be held in perpetuity or for a long period of time. If, then, the object of the statute now before us is, as it appears to be, to overturn a long-settled State policy in favor of gifts, grants, bequests, and devises to religious, educational, charitable, and benevolent uses, and to permit courts of chancery to administer, in perpetuity, landed and other estates, the advertisement of such an object ought to be clear. The Constitution, art, 5, § 21, provides that:
“No law shall embrace more than one object, which shall be expressed in its title.” '
This provision of the fundamental law is binding upon the legislature as well when it borrows or adopts a law from another jurisdiction as when the law originates at home.
“The Constitution has made the title the index to the legislative intent as to what shall have operation.” Callaghan v. Chipman, 59 Mich. 614 (26 N. W. 808).
“One of the purposes * * * of the Constitution is to prevent ‘the insertion of clauses in the bill of which the title gives no intimation,’ or, as has been said, 'for the purpose of preventing the legislature, as well as the people, from being misled as to its contents.”’ Davies v. Board of Supervisors, 89 Mich. 302 (50 N. W. 862).
“This purpose of the constitutional direction, which has been disregarded in this act, is that the intent of the bill — its. object — shall be clearly shown by its title, for the benefit, not only of the members of the legislature who are to vote upon it, but also for the benefit of the people of the State outside of the. legislature, who are interested, and have a right to be, in all legislation.” Brooks v. Hydorn, 76 Mich. 278 (42 N. W. 1123).
“The purpose of this constitutional provision is that legislators, and as well parties interested, may understand from the title that only provisions germane to the object therein expressed will be enacted.” Blades v. Water Com’rs of Detroit, 122 Mich. 378 (81 N. W. 276).
If the title to this act expresses its object, it equally as well expresses the object of any act which could be passed affecting gifts, grants, bequests, and devises for religious, educational, charitable, and benevolent purposes, and it equally as well expresses the object of any act enlarging or limiting the powers to be exercised by courts of chancery. This is so even if we consider the word “gifts” in the title as equivalent to and meaning the same as “grants, bequests, and devises.” The trouble is that the title to the act expresses no object and would express none if we could refer the words “gifts for religious, educational, charitable, and benevolent purposes” to a body of rules or a doctrine, the nature and extent of which was well known and made certain by association, practice, or judicial decision. In whatever manner or spirit the title is read, the inquiry must still be: What is the object of the law? And that can be discovered only by reading the law. The title is misleading. In my opinion, there is present, not a mere technical evasion or disregard of the Constitution, but the precise evil at which the Constitution is aimed. An act of the greatest importance is passed with a title which not only fails to express its object but, in so far as it is suggestive of an object, is misleading. In such a case, the duty of the court, however unpleasant its performance, is to declare the act invalid.
I doubt the value of any attempt to reply to the opinion of Mr. Justice Brooke upon this point. Industry might be so extended as to bring together even a larger variety of titles to legislative acts than he has done. Whether the ruling I have indicated would or would not make invalid “a mass of legislation of the greatest importance” is, I submit, not an argument. The question is whether the law before us “has but one general object which is fairly indicated by its title.” People v. Mahaney, 13 Mich. 481, 495. The question must be answered, not by a reference to any mass of legislation of great or of little importance, but by an intelligent examination of the act itself, discovery of its general object, and finding the object fairly indicated in the title, or otherwise. That the effect of my conclusion is to overrule two of our own decisions is a statement which should be noticed. It is not very material, but the title to the original act, considered in Soukup v. Van Dyke, 109 Mich. 679 (67 N. W. 911), is not correctly stated in the opinion of Mr. Justice Brooke. The title is:
“An act relative to justices’ courts in the city of Grand Rapids, to reduce the number thereof, and to fix the compensation of such justices, and provide a clerk and offices therefor.”
It is clear that almost any provision relating to justices’ courts in Grand Rapids might be looked for in such an act. The act contained also provisions regulating fees to be paid by suitors and to transfer of causes for trial from one justice to another. By an amendatory act, entitled “An act to amend an act entitled ‘An act,’ ” repeating the title of the original act, justices of the peace of the city of Grand Rapids were given exclusive jurisdiction of all actions within the limits of a justice’s jurisdiction where both parties were residents of the city. The question was whether this object was sufficiently indicated in the title. It was held that the general words, “An act relative to justices’ courts in the city of Grand Rapids,” indicated the general purpose of the legislation, which was not restricted by a reference in the title to certain special features of the act. The general rule applied was, “The title is sufficient if it fairly and reasonably announces the object, and that is a single one.” People v. Kelly, 99 Mich. 82 (57 N. W. 1090); Canal Street Gravel Road Co. v. Paas, 95 Mich. 379 (54 N. W. 907), and Van Husan v. Heames, 96 Mich. 507 (56 Ñ. W. 22), are cited. In this connection, People v. Snyder, 108 Mich. 48 (65 N. W. 562), and Cote v. Village of Highland Park, 173 Mich. 201 (139 N. W. 69), may be cited. I think the distinction between the case at bar and those cited by Justice Brooke is plain. In People v. Kelly, the title of the act was “An act relative to disorderly persons and to repeal,” etc. It is said in the opinion:
“The precise contention is that the title gives no information as to what acts constitute a disorderly person, and that the third offense, of which the defendant was found guilty, is not expressed therein. The title to this act is the same as the titles to other acts for the punishment of disorderly persons, which have been, from time to time, enacted by the legislature, and the ¡Sections of those acts defining who are disorderly persons have been substantially the same. The term ‘disorderly persons’- is comprehensive, and properly includes all those who are designated in the body of the act. It is within the purview of the title to include different degrees of punishment for first, second, and subsequent convictions. The crime does not consist in the fact of two or more convictions, but in the fact that the respondent has been convicted as a disorderly person for the second or more times. Upon such subsequent trial, he must be found guilty of being a disorderly person; and, in order to impose the heavier punishment, former convictions must be proven. This objection to the law is not well founded.”
This court has been careful not to hamper legislation by a too striét application of the constitutional provision in question. Each case in which it has been applied must be consulted in order to learn the real ground of decision. I have called attention to the fact that in the case now presented the title is not aided by a reference therein to any subject defined by former legislation or to any body of rules or to a doctrine made certain by association, practice, or judicial decision.
But I do not consider that, because all donations to the uses mentioned in the act are commonly known as gifts, the word “gifts” in the title expresses the same meaning as the words “grants, bequests, and devises” in the body of the act, nor connotes or suggests the larger purpose and object indicated in the body of the act. It will be presumed to have the same meaning in the title that it has in the body of the act, where, plainly, it is used as having a different meaning than the words “grants, bequests, and devises.”
The decree should be reversed, and a decree entered in this court generally agreeably with the prayer* of the bill; but, unless counsel can agree upon its terms, the extent to which the trustee ought equitably to account must be left a matter for further consideration.
Stone, Bird, and Steere, JJ., concurred with Ostrander, J.
Brooke, C. J. My Brother Ostrander holds the act in question invalid because of the alleged insufficiency of its title. The title reads: “An act relative to gifts for religious, educational, charitable and benevolent purposed.” This court has three times passed upon the precise question raised.
In People v. Kelly, 99 Mich. 82 (57 N. W. 1090), the court had under consideration an act entitled “An act relative to disorderly persons.” It was said:
“The precise contention is that the title gives no information as to what acts constitute a disorderly person, and that the third offense of which the defendant was found guilty is not expressed therein. * * * This objection to the law is not well founded.”
In Soukup v. Van Dyke, 109 Mich. 679 (67 N. W. 911), the title under consideration was: “An act relative to justices’ courts in the city of Grand Rapids.” The court said:
“We think the general words ‘An act relative to justices’ courts in the city of Grand Rapids’ are used to indicate the general purpose of the legislation. * * *
“The provision requiring the object to be expressed in its title has not received a construction which renders it necessary * * * that the title be as full as the act itself.”
Again in the case of People v. Worden Grocer Co., 118 Mich. 604 (77 N. W. 315), this court, in considering an act entitled “An act in relation to the manufacture and sale of vinegar,” said:
“It is contended that the title to the act does not express any object; that the act was intended to prevent deception in the sale of vinegar, or to prevent adulteration of vinegar, but that no such object is expressed in the title. * * * We think this contention sufficiently answered by what was said by this court in Soukup v. Van Dyke, supra.”
Much of the most important legislation upon our statute books has been enacted under titles similar to the one in.question. ¡ Some, instances follow:
“An act relative to" levies and sales in execution, in certain cases.”' Act No. 274, Laws 1865.
“An-act relating to negotiable instruments.” Act No. 2.65, Pub. Acts 1905.
“An act in relation to the public health in this State.” Act No.. 293,. Pub. Acts 1909.
“An act in relation to the sale of corn syrup.” Act No. 123, Pub. Acts 1903.
“An act relative to the unauthorized removal of timber or other, property from State tax lands.” Act No. 145, Pub. Acts 1903.'
. “An act in relation to.the use of preservatives in food products.”. Act Np. 7, Pub. Acts 1905.
“An act relative to the cost' of bonds to be furnished by State officers.” Act No. 311, Pub. Acts 1905.
'“An act relative to agreements, contracts and combinations in restraint of trade or commerce.” Act No. 329, Pub. Acts 1905.
“An act in relation to acquiring title to real estate by adverse possession.” Act No. 46, Pub. Acts 1907. “An act relative to the maintenance and construction of hospitals and sanitoria within the counties of this State and to provide a tax to raise moneys therefor.” Act No. 139, Pub. Acts 1909.
. “An act relative to wills executed without this State.” .Act No. 45, Pub. Acts 1911.
“An act relative to proceedings against and the liquidation of delinquent insurance corporations.” Act No. 216, Pub. .Acts 1911.
“An act relating to the conduct of hotels, inns and public lodging houses.” Act No. 188, Pub. Acts 1913.
In addition to the foregoing there are others. This list is sufficient, however, to indicate the breadth and importance of the legislation enacted under titles subject to the exact infirmity which my Brother holds fatal to the act in question. Many, of these acts are penal in character and directly affect the liberty of the individual. Others deal with the public health, fix property rights, and define and provide penalties for illegal methods of doing business.' Many of these acts have been before this court for construction; no attack having been made upon their several titles. To agree with my Brother’s conclusion would be to overrule the three cases above cited, to adopt a new and much stricter rule of construction, and (by inference) to make invalid a mass of legislation of the greatest importance. It is true that the act in question does change an old and well-settled policy of this State,, That fact, however, does not militate against its validity. Legislative changes are constantly being made to meet varying conditions, and it is. the duty of the court to give effect to legislation, where the legislative intent is clear and no constitutional provision offended.
It should be noted that, under constitutional provisions practically identical with our own, the States, of Pennsylvania and Kentucky have had for many years acts similar in character to our own under titles subject to the same alleged infirmity. The fact that the title may be said to be broader than the enactment thereunder does not affect its validity. Under our own decisions, I am satisfied that the title to the act in question is sufficient.
It is said that -the word “gifts” in the title is insufficient to cover the language “gift, grant, bequest or devise” used in the body of the act, and that therefore the enactment is broader than its title. 1 Comp. Laws, § 50, subsec. 1, relative to the construction of statutes, provides:
“All words and phrases shall be construed and understood according to the common and approved usage of the language; but technical words and phrases, and such as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.” '
The word “gift” is about as common and ordinary as any in the English language. It is of everyday use, and has acquired a very well-settled, common, and approved definition. That universally accepted and popular definition is the transfer without consideration of something of value, whether between living persons or by will. The fact that a sum of money is bequeathed or a piece of real estate devised by law does not affect the quality of the act. It is still a gift, in the popular understanding of that term, and, indeed, would be so understood by the legally trained mind as well as by the lay mind. The donee of a gift inter vivos, the legatee of a bequest, or the devisee of lands all receive something of value without consideration. The quality of the transaction is the same in each instance, though the method of its performance is different. To hold that the word “gift” was insufficient to cover the terms used in the enacting part of the statute would, in my opinion, be inexcusable over-refinement.
At the last session of the legislature, an act (Act No. 380, Pub. Acts 1913) was passed entitled:
“An act to regulate gifts of real and personal property to cities, villages and other municipal corporations, and to validate all such gifts heretofore made.”
Section 1 provides:
“Any city, village, township or other municipal corporation in the State of Michigan may receive, own and enjoy any gift of real or personal property, made by grant, devise, bequest or in any other manner, for public parks, * * * whether made directly or in trust. * * * ”
This act has never been construed by this court, and it is significant only as indicating the legislative understanding of the definition of the word “gift,” used in the earlier act. It is unnecessary to hold that the word “gift” in the title be restricted to the meaning it is said to have in the body of the act.
In Black on Interpretation of Laws, § 82, it is said:
“Where the same language is used repeatedly in the statute, in the same connection, it is presumed to bear the same meaning throughout the act; but this presumption will be disregarded where it is necessary to assign different meanings to the same term in order to make the statute sensible, consistent, and operative.”
The word “gifts” in the title is generic, but the word “gift” in the body of the act, used in connection with the words “devise” and “bequest,” doubtless was intended to refer to gifts inter vivos, as distinguished from gifts by devise or bequest. The presumption that a word repeatedly used in the same statute bears the same meaning is of little weight. 26 Am. & Eng. Enc. Law (2d Ed.), p. 610. If a statute is susceptible of two constructions, that construction which renders it constitutional is to be chosen rather than the one which would render it unconstitutional, even though the latter may be the more natural interpretation of the language. Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308; Weimer v. Bunbury, 30 Mich. 201; 8 Cyc. p. 606; 36 Cyc. p. 1112; Black on Interpretation of Laws, § 43.
A statutory interpretation invalidating a law upon constitutional grounds is adopted by the courts only when imperatively demanded. I do not regard the fact that the body of the statute deals in some measure with trusts as important, for the reason that a gift in trust, whether inter vivos or by bequest or devise, is nevertheless a gift, and as such is covered by the general term used in the title. The fact that this statute was enacted more than seven years ago should not be overlooked. It is to be presumed that, relying upon the act, charities have been established and estates have vested. Under such circumstances, it would be the duty of the court to decline to hold it invalid, even if it was subject to the infirmities claimed by the appellants, but which, in my opinion, do not exist. Stockle v. Silsbee, 41 Mich. 615 (2 N. W. 900); Continental Improvement Co. v. Phelps, 47 Mich. 299 (11 N. W. 167).
The decree should stand affirmed.
McAlvay, Kuhn, and Moore, JJ., concurred with Brooke, C. J. | [
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Brooke, J.
Relator asks for mandamus to compel the respondent to make an order striking from the files of the circuit court of Kalamazoo county a certain report presented to the said court by a grand jury. The report in question follows:
“State op Michigan.
“To the Circuit Court for the County of Kalamazoo:
“We, the members of the grand jury now in session, beg leave to report, in addition to the reports already made, that our investigations have disclosed the existence of a state of affairs in connection with the office of prosecuting attorney for this county which we deem it our duty to call to the attention of the court.
“1. The evidence disclosed that the prosecuting attorney of this county has violated the laws of the State by drawing from the treasury of the county the sum of $245, claiming that amount as fees for services rendered in certain divorce cases, to which we believe he is not legally entitled. Act No. 586 of the Local Acts of the State of Michigan for the year 1907 provides that the salary of the prosecuting attorney for the county of Kalamazoo shall b$ fixed by the board of supervisors, and that such compensation shall be in full for all services that may be rendered for which the county may be liable, and in lieu of all fees which are fixed by law.
“2. That he was advised, as the evidence shows, before drawing said amount that he was not entitled thereto; notwithstanding which he drew the same from the treasury of the county and retains the amount so drawn, and has neglected and refused, and still neglects and refuses, to return the money so drawn to the treasurer of the county.
“3. Our investigation further shows that he has refused to attend sessions of the grand jury, though often requested by the circuit judge to do so, thereby subjecting the county to a great expense of having a special prosecutor to perform the duties for which he was elected and for which he is paid by the county.
“4. Without going into details our investigations further show that from the time the grand jury was summoned, and since it has been in session, that the prosecuting attorney of this county has, through the public press and otherwise, sought to cast discredit upon and to obstruct, hinder, and delay any efforts of the jury to get at the truth or falsity of the many rumors of alleged criminal irregularities within the county and city of Kalamazoo; that he furthermore in furtherance of his schemes has not hesitated to apply the most vile, profane, obscene, and vulgar epithets (too filthy, vile, and disgusting to be embodied in this report), not only to the chief executive of the State, the head of the legal department thereof, but to others who have been engaged in an honest effort to arrive at the truth of matters under investigation.
“5. Our investigation has disclosed in the conduct of criminal business of the county that he is utterly incompetent to discharge properly the duties of the office to which he has been elected. His neglect of duty and his conduct has been of so serious a nature that we feel it our duty to bring the same to the attention of the court and to request that this report or a copy thereof be forwarded to the governor of the State for consideration and for such action as to him shall seem proper.
[Signed] “The Grand Jury of Kalamazoo County,
“By Byron J. Carnes,
“Foreman of Grand Jury.”
The relator charges that the averments and innuendoes contained in said report are false and malicious, and wrongfully tend to impute a lack of integrity on the part of petitioner.
He filed a petition with the circuit judge demanding that said paper be summarily stricken and expunged from the files and records of the court. Re spondent’s return to the order to show cause, issued by this court, shows that in fact relator’s petition filed in his court has never been acted upon, for the reason that no notice has been given by relator to members of the grand jury making the report, nor has any hearing upon said petition been demanded by relator. Respondent, however, returns that if he had acted upon said petition, as he is at present advised, he would have denied the prayer of the same for the following reasons:
“(a) Because, as matter of law, it is his judgment that the said grand jury had the lawful right to make said report to the court for the purposes therein set forth.
‘‘(b) Because in the judgment of the respondent, said report was made to the court by said grand jury in good faith, and not from malicious or improper motives.
“(c) Because an ex parte decision to strike said report from the files and proceedings of the court would, in the judgment of respondent, be an adjudication which might embarrass the grand jury and the several members thereof, and render them, at least prima facie, guilty of libeling relator.
“(d) Because the lawful rights of the relator, the members of the grand jury, the court, and the people of Kalamazoo county are such, in the judgment of respondent, as to render it improper to strike said report from the files and proceedings of said grand jury and award the relief prayed by relator in and by his petition to strike same from said files.
“(e) Because the' relator’s remedy, if any, in the premises, is not by writ of mandamus, but by suit, or suits, as against the grand jurors and all who may have taken part in the preparation and publication of said report, if the matters embraced therein are false and untrue, and if said report was not made by said grand jury in good faith and without malicious motives, and respondent states and avers that if all the matters and things stated, alleged, and averred in the relator’s petition in this matter are true, which tbis respondent does not concede, he is not entitled to the relief prayed, and resoondent demurs thereto for that reason.”
We are of the opinion that it was unnecessary for relator to serve notice of his motion to strike said report from the files upon any member of the grand jury. The paper, having been filed, became a part of the records of the circuit court for the county of Kalamazoo and, as such, was peculiarly within the custody and control of respondent. Touching the failure of relator to demand a hearing upon said petition, it is, we think, true that relator should have secured action, one way or the other from respondent, upon his petition before applying to this court for relief. However, we are not inclined to dispose of the case upon this technicality, in view of respondent’s return, and in view of the further fact that counsel for respondent has asked us to disregard the technical defense, and dispose of the question upon its merits. We will, therefore, consider the matter in this court as if, in fact, the respondent had refused upon proper application to expunge the report from the records of the court.
In order to determine the question in issue, it becomes necessary to ascertain, if possible, what duties and functions devolve upon the grand juries in this jurisdiction. Blackstone, in his Commentaries, book 4, page 301, defines the procedure as follows:
“The next step towards the punishment of offenders is their prosecution, or the manner of their formal accusation. And this is either upon a previous finding of the fact by an inquest or grand jury; or without such previous finding. The former way is either by presentment or indictment.
“1. Presentment by indictment. A presentment, generally taken, is a very comprehensive term; including not only presentments, properly so called, but also inquisitions of office and indictments by a grand jury. A presentment, properly speaking, is the notice taken by a grand jury of any offense from their own knowledge or observation, without any bill of indictment laid before them at the suit of the king; as the presentment of a nuisance, a libel, and the like; upon which the officer of the court must afterwards frame an indictment, before the party presented can be put to answer it. An inquisition of office is the act of a jury summoned by the proper officer to inquire of matters relating to the crown, upon evidence laid before them. Some of these are in themselves convictions, and cannot afterwards be traversed or denied; and therefore the inquest or jury ought to hear all that can be alleged on both sides. Of this nature are all inquisitions of felo de se; of flight in persons accused of felony; of deodands, and the like; and presentments of petty offenses in the sheriff’s tourn or court-leet, whereupon the presiding officer may set a fine. Other inquisitions may be afterwards traversed and examined; as particularly the coroner’s inquisition of the death of a man, when it finds any one guilty of homicide; for in such cases the offender so presented must be arraigned upon this inquisition, and may dispute the truth of it; which brings it to a kind of indictment, the most usual and effectual means of prosecution, and into which we will therefore inquire a little more minutely.
“2. An indictment is a written accusation of one or more persons of a crime or misdemeanor, preferred to, and presented upon oath by, a grand jury. To this end the sheriff of every county is bound to return to every session of the peace, and every commission of oyer and terminer, and of general gaol-delivery, twenty-four good and lawful men of the county, some out of every hundred, to inquire, present, do, and execute all those things which, on the part of our lord the king, shall then and there be commanded them. They ought to be freeholders, but to what amount is uncertain: which seems to be casus omissus (omitted cases), and as proper to be supplied by the legislature as the qualifications of the petit jury, which were formerly equally vague and uncertain, but are now settled by several acts of parliament. However, they are usually gentlemen of the best figure in the county. As many as appeal upon this panel are sworn upon the grand jury, to the amount of twelve at least, and not more than twenty-three; that twelve may be a majority. Which number, as well as the constitution itself, we find exactly described, so early as the laws of King Ethelred. (Exeant seniores duodeeim thani, et prsefectis cum, eis, et jurent super sanctuarium quod eis in manus datur, quod nolint ullurn innocentem acensare, nec aliquem noxium celare.) (Let twelve elder freemen, and the foreman with them, retire and swear upon the holy book which is given into their hands that they will not accuse any innocent person, nor screen any criminal.) In the time of King Richard the First (according to Hove-den) the process of electing the grand jury ordained by that prince, was as follows: four knights were to be taken from the county at large, who chose two more out of every hundred; which two associated to themselves ten other' principal freemen, and those twelve were to answer concerning all particulars relating to their own district. This number was probably found too large and inconvenient; but the traces of this institution still remain in that some of the jury must be summoned out of every hundred. This grand jury are previously instructed in the articles of their inquiry, by a charge from the judge who presides upon the bench. They then withdraw to sit and receive indictments, which are preferred to them in the name of the king, but at the suit of any private prosecutor; and they are only to hear evidence on behalf of the prosecution; for the finding of an indictment is only in the nature of an inquiry or accusation, which is afterwards to be tried and determined; and the grand jury are only to inquire, upon their oaths, whether there be sufficient cause to call upon the party to answer it. A grand jury, however, ought to be thoroughly persuaded of the truth of an indictment, so far as their evidence goes; and not to rest satisfied merely with remote probabilities; a doctrine that might be applied to very oppressive purposes.”
The definition of a “presentment” as distinguished from “indictment” is set out in 20 Cyc. p. 1335, § B-2, as follows:
“A presentment in its limited sense is the notice taken by a grand jury of any offense from its own knowledge or observation without a bill of indictment laid before it at the suit of the Commonwealth. It is generally regarded in the light of instructions upon which an indictment must be found. In some jurisdictions either under statute or apart from statute, grand juries have the power to make presentment of offenses which are within their own knowledge and observation or are of public notoriety and injurious to the entire community. But in other jurisdictions it is held that the grand jury has no power to present any person for a criminal offense except by indictment.”
It is said in Hirsh on Juries, p. 209, § 725, par. 2:
“In addition to bills of indictments and specific offenses, the grand jury have the right to present to the court such public wrongs as in their judgment should be brought to the notice of the court.”
In a charge to a grand jury delivered by Mr. Justice Field, and reported in 2 Sawy. (U. S.) 667 (Fed Cas. No. 18,255), the following definition of “presentment” is found:
“A presentment differs from an indictment in that it wants technical form, and is usually found by the grand jury upon their own knowledge, or upon the evidence before them, without having any bill from the public prosecutor. It is an informal accusation, which is generally regarded in the light of instructions upon which an indictment can be framed.
“This form of accusation has fallen in disuse since the practice has prevailed — and the practice now obtains generally — for the prosecuting officer to attend the grand jury and advise them in their investigations.”
The identical question here presented seems to have arisen in the State of New York in the case of In re Osborne, 68 Misc. Rep. 597 (125 N. Y. Supp. 313). There a grand jury was summoned to take action regarding the American Ice Company. The deputy attorney general attended the grand jury and instructed them to find “no bill,” because of lack of evidence. The grand jury, however, did present to the court a report assailing the conduct and integrity of the deputy attorney general. This is a late case, being tried in 1910. In ordering the report expunged from the records, the court says:
“It has become a custom of almost invariable occurrence that the grand jury, at the close of its term, makes a presentment on some subject on which, frequently, no evidence has been heard. This, no doubt, proceeds from the zeal of its members to promote the general welfare by calling attention to certain conditions which they believe should be remedied. So long as they are confined to matters of general interest, they are regarded as harmless, even though a waste of time and effort, and after the ephemeral notice of the day has passed they are allowed a peaceful rest. But it is very different when the motives and conduct of the individual are impugned, and he held to reprobation, without an opportunity to defend or protect his name and reputation, for it must be borne in mind that, if the gentlemen of the grand jury were to meet as an association of individuals and give expression to the sentiments contained in a presentment, little attention would be paid to them, and a healthy regard for the responsibility of utterances injurious to the individual would, in all probability, restrain exaggerated and unfounded statements. The mischief arises from a prevalent belief that a grand jury making the conventional presentment speaks with great. authority and acts under the sanction of the court, thereby giving to its deliverance a solemnity which impresses the mind of the public. This is a grave error. The powers and duties of a grand jury are defined by law. No matter how respectable or eminent citizens may be who comprise the grand jury, they are not above the law, and the people have not delegated to them arbitrary or plenary powers to do that, under an ancient form, which they have not a legal right to do. * * *
“Some States have abolished the grand jury system. This State yet preserves it, and it may be wise that it does so, for it is an institution that has indelibly impressed upon the pages of history a record for the protection of the citizen against the arrogance and oppression of power and has inspired in the hearts of the lawless and corrupt a healthy fear of its powers and honesty. But its. action should be checked when, from thoughtlessness or misconception * * * it arraigns the citizen in phrases accusing him of acts or conduct which in themselves are not criminal, thereby precluding him from the right guaranteed by the Constitution to every man to meet his accusers face to face before a jury of his peers, but which are the most insidious and harmful because they must remain without answer or denial. Such is this case, and in the interests of justice I am constrained to protect the attorney general and his deputies from an injustice by directing that the paper presented to the court by the grand jury, bearing date the 7th day of April, 1908, and entitled ‘a presentment,’ be stricken from and expunged from the records of this court.”
In the case of Rector v. Smith, 11 Iowa, 802, which was an action for libel against grand jurors for filing a report reflecting upon the conduct of plaintiff as county judge, it was held that the plaintiff could not recover, on the ground that the presentment was made without malice and supposedly in discharge of duty. The court, however, made the following comment upon the duties of the grand jury:
“It is made the duty of the grand jury when they find that an indictable offense has been committed within their county, to present the same by indictment. See Code, § 2897. By section 2992 it is made the special duty of the grand jury to inquire into the matters specified in the four subdivisions of this section. It is under the provisions of this section that the defendant claims that the law authorized and justified him in presenting to the court, as a grand juror, the report in regard to the actions of plaintiff as county judge. The grand jury have no power, nor is it their privilege or duty to present any person for a criminal offense except by indictment. If the misconduct of an officer does not amount to a crime, and is not of such magnitude as will justify the jury in finding an indictment, their powers over the offense complained of are at an end.”
It would appear that the statutory enactments relative to the duties of grand juries in Iowa were without effect upon the determination.
In State v. Darnal, 1 Humph. (Tenn.) 290, it is said:
“The presentment is in the form of a bill of indictment, and is signed individually by the grand j.urors who returned it. In England, as we have had occasion .heretofore to observe, an offender never was put upon trial upon a presentment, but on a return of a presentment by the grand jury, which was merely an informal information of the offense having been committed, the attorney general prepared a bill of indictment thereon, stating an offense in legal and technical form, and, upon this the person charged was put upon his trial. But such has not been the practice in the State of Tennessee. Here, when the grand jury, or any one of their body, is cognizant of an offense, the practice is to inform the attorney general thereof in the first instance, who prepares a bill of indictment upon the information, which is delivered to the grand jury and is by them returned, instead of the old informal presentment.”
In the case of Grand Jury v. Public Press, 4 Brewst. (Pa.) 313, in speaking of presentments, the court said:
“Like an indictment, however, it must be the act of the whole jury, not less than 12 concurring in it. It is, in fact, as much a criminal accusation as an indictment, except that it emanates from their own knowledge, and not' from the public accuser; and, except that it wants technical form, it is regarded as instructive for an indictment. That a grand jury may adopt such a course of procedure without a previous preliminary hearing of the accused is undoubted; it is equally true that in making such a presentment the grand jury are entirely irresponsible, either to the public or to individuals aggrieved, the law giving them the most absolute and unqualified indemnity for such an official act.”
In the case of In re Jones, 101 App. Div. (N. Y.) 55 (92 N. Y. Supp. 275), decided in 1905, a report or presentment was filed by the grand jury criticising certain officials of the court. It was sought to have the same expunged from the records. This relief was denied by the court, but at page 58 of 101 App. Div. (92 N. Y. Supp. 277), it is said:
“I think that if under the guise of a presentment the grand jury simply accuse, thereby compelling the accused to stand mute, where the presentment would warrant indictment so that the accused might answer, the presentment may be expunged, but I do not think that a presentment as a report upon the exercise of inquisitorial powers must be stricken out if it incidentally point out that this or that public official is responsible for omissions or commissions, negligence, or defects.”
In this State there are but two matters upon which a grand jury have statutory right to make reports or presentments, i. e., trespass on public lands, 1 Comp. Laws, § 1395, and violation of the election laws, §11443 (5 How. Stat. [2d Ed.] §14910). 3 Comp. Laws, §§ 11891, 11893 (5 How. Stat. [2d Ed.] §§ 15062, 15064), provide how indictments shall be found, but contain no provisions for the filing of a report or presentment reflecting upon the conduct of public officials.
An examination of the report filed by the grand jury in the instant case shows that it contains reflections of the gravest character upon the official conduct of the petitioner, if it does not actually charge him with the commission of a felony.
A review of all the cases cited upon both sides of the question, and such others as we have been able to examine, leads us to the conclusion that inherently, apart from statutory sanction, the grand jury has no right to file such a report, unless it is followed by an indictment. The evils of the contrary practice must be apparent to all. While the proceedings of the grand jury are supposed to be secret, it is clear that in the present instance that secrecy was not inviolate, for the objectionable report found its way into the press of Kalamazoo within a few hours after it had been filed. Whether the matter contained in such report be true or false, it can make no difference with the principle involved. In either event the accused person is obliged to submit to the odium of a charge or charges based, perhaps, upon insufficient evidence, or no evidence at all, without having the opportunity to meet his accusers and reply to their attacks. This situation is one which offends every one’s sense of fair play and is surely not conducive to the decent administration of justice. Upon the coming in of said report, we are of the opinion, that it was the duty of the trial court to have refused to accept it, or file it with the records of his court. Having received and filed it, upon the application of the petitioner, it was plainly his duty to have expunged it from the files. The writ will issue as prayed.
McAlvay, C. J., and Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred with Brooke, J. | [
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] |
Stone, J.
This cause deals with the power of the defendant to promulgate rules covering car service and demurrage, applicable to shipments of freight loaded or unloaded, in Michigan, and the validity of the rules promulgated by the defendant on July 5, 1912. The history of the controversy is somewhat lengthy and involved.
As early as January 1, 1909, the railroads of the lower peninsula of the State promulgated and placed in effect a set of demurrage rules applicable to both State and interstate business in Michigan. Those rules were contained in tariffs regularly filed by the railroads, with both the defendant and the Interstate Commerce Commission.
During the year 1909 the National Association of Railroad Commissioners, composed of the railroad commissioners of the several States, and the Interstate Commerce Commission, gave consideration to the formulation of a code of car service and demurrage rules. This code was finally adopted by that association, and Was tentatively approved by the Interstate Commerce Commission, on December 18, 1909. The Michigan railroads decided to adopt these rules, and announced them to be effective May 1, 1910, and published their tariffs and filed them as required by law. In the meantime the defendant had under consideration, on a complaint pending before it, the formulation of a set of demurrage rules, and on February 3, 1910, it promulgated, by an order, such a set of rules to be effective March 1, 1910, accompanied by an opinion as to its power, and as to the reasonableness of its rules.
Upon March 1, 1910, a bill of complaint was filed in the circuit court for the county of Wayne, in chancery, by a number of railroad companies, which are likewise parties complainant in the instant case, praying that the defendant be restrained from enforcing the rules it had promulgated to be effective on that date. The bill charged in substance that the defendant, under the act by which it was. created, had no authority to make such rules; that the rules themselves were a burden upon interstate commerce; and that, by the express terms of the act, the defendant com mission was limited in its power over transportation to the transportation of property between points within the State of Michigan. The defendant demurred to this bill of complaint. Upon a hearing in the circuit court a decree was entered sustaining the demurrer. Upon an appeal to this court by complainants, the decree of the lower court was reversed, and it was held in substance that the statute (Act No. 300, Pub. Acts 1909) limited the authority of the defendant to the regulation of transportation within the State of Michigan. Ann Arbor R. Co. v. Railroad Commission, 163 Mich. 49 (127 N. W. 746). Justice Blair, writing the opinion, said:
act creating the defendant and defining its powers, its
“It is apparent, therefore, that, by the terms of the authority to promulgate demurrage rules is limited to cases where the property has been or is to be transported ‘between points within this. State.’ It becomes unnecessary, therefore, to consider the power of the legislature to grant the authority claimed for the defendant or the other interesting questions discussed in the briefs of counsel, since the limitations of the act creating it negative any authority on the part of defendant to establish and enforce demurrage rules where the transportation is interstate.”
This opinion was handed down September 28, 1910. As the law then stood, it is therefore res ad judicata that the defendant had no jurisdiction over demurrage upon interstate shipments.
However, by Act No. 173, Public Acts of 1911 (3 How. Stat. [2d Ed.] §§ 6526, 6531), sections 3 and 8 of the act under which the defendant was organized were amended, so that they read as follows; the amendments appearing in italics:
“SEC. 3 (d). The provisions of this act shall apply to the transportation of passengers and property between points within this State, and to the receiving, switching, delivering, storing and handling of such property, -and to all charges connected therewith, including icing and mileage charges: Provided, however, that this provision shall not be construed as a limitation on the authority of the commission created by this act to prescribe car service and demurrage rules applicable to all traffic beginning or ending within this State.”
“Sec. 8. Every railroad shall, when within its power so to do, and upon reasonable notice, furnish suitable cars to any and all persons who may apply therefor, for the transportation of any and all kinds of freight in car load lots. * * * The commission shall have power to make and enforce, and shall make and enforce reasonable regulations for the furnishing and distribution of freight cars to shippers and switching the same, and for the loading and unloading thereof, and for the weighing of the cars and the freight offered for shipment over any line of railroad and shall fix a reasonable per diem demurrage to be paid_for the detention of cars by shipper or consignee (which said car service and demurrage rules and regulations shall be applicable to all traffic whether the same begin or end within the State of Michigan), and for the failure or delay of the railroad in the furnishing of such cars, and for the failure of the railroad to move the cars the number of miles per day as ordered by the commission.”
At the time of the above legislation, the present case was pending in the circuit court, but the bill of complaint was so framed as to raise only the question of the power of the defendant to enforce its demur-rage rules as to intrastate commerce.
An order had been entered on handing down our decision in the Ann Arbor Railroad Company Case, modifying the previous injunction, and permitting the railroad companies to make effective, on interstate business, the rules known as the uniform rules, and permitting the defendant to enforce upon State business the rules it had promulgated.
In view of the State legislation above referred to, the complainants, on September 2, 1911, filed an amended bill of complaint, setting forth the foregoing proceedings, and charging that the defendant claimed that it had the power to enforce its rules upon both State and interstate business in Michigan; that the freight cars of complainants could not be detained without unlawfully burdening interstate commerce; that defendant had no authority to promulgate its rules as to interstate commerce; that the power of the defendant was limited to State traffic; that no other power had ever been conferred on it by the State legislature; that the legislature had no authority to confer any power upon the defendant to affect demurrage; that the said act of the legislature of 1911, purporting to extend the power of the defendant, in that respect, was beyond the power of the legislature; that interstate commerce began with the loading of the property intended for interstate shipment, and continued until it was unloaded; that the Interstate Commerce Commission had complete jurisdiction over interstate commerce; that the"rules promulgated by the defendant would constitute a burden upon interstate commerce; that the rules so promulgated gave an advantage to shippers in intrastate commerce; that the allowance of extra time would afford such an advantage, would increase the expense to the railroads, cause trouble and annoyance in the handling of cars, greatly increase the expense of the carriers under the interchange agreement, and delay the use of cars;' and that, in such respects as the Michigan rules differ from the uniform rules, they would constitute a burden upon interstate commercé. The defendant answered the amended bill, admitting that it claimed authority to promulgate rules, but denying that the rules it had promulgated would materially extend the time within which cars would be detained. It admitted the amendment of the statute of 1911, and declared that the legislature had power to confer the authority therein attempted to be conferred on the defendant; that under this amendment the defendant had authority to promulgate rules applicable to both State and interstate commerce, and denied that its rules were a burden upon interstate commerce, or would cause any inequality or discrimination.
On October 5, 1911, the defendant reissued its order directing that its demurrage rules should become effectual on both State and interstate business, and on January 31, 1912, the complainants again amended their bill of complaint, calling attention to the making of this order, and praying for an injunction, and on February 7, 1912, an injunction was issued restraining the defendant from making effectual its said order of October 5, 1912.
Under an order of reference theretofore entered, the parties proceeded to take proofs, and, these having been completed, the court- entered añ order, on June 22, 1912, referring to the defendant the testimony and proofs, in accordance with the provisions of the act of 1909. On July 5, 1912, the defendant entered an order which recited the proceedings that had been taken before it, and the fact that the proofs had been certified to it, and had been examined; that the demurrage rules established by the railroad companies in Michigan were unreasonable and unjustly discriminatory, and the defendant promulgated a new set of rules, which appear in the record and are known as the rules of July 5, 1912. Later, and on August 21, 1912, on application of complainants, the court issued an injunction against the defendant, forbidding it to enforce its new rules of July 5th. While this litigation had been progressing, the so-called uniform rules, or national car demurrage rules, had been the subject of frequent discussion by the National Association of Railroad Commissioners, by the American Railroad Association, and by the Interstate Commerce Commission. The American Railroad Association had issued certain explanations of these rules and had adopted the rules themselves and had modified them from time to time. Finally, on June 3, 1912, the Interstate Commerce Commission issued its bulletin to the effect that it had tentatively indorsed such revised rules. . That bulletin reads as follows:
“INTERSTATE COMMERCE COMMISSION.
“Washington, D. C., June 3, 1912.
“Revised National Car Demurrage Rules.
“The American Railway Association on May 15, 1912, adopted a revised set of national car demurrage rules, that being the designation used by the American Railway Association for the uniform demurrage code tentatively’approved by the commission on December 18, 1909, and also a revised set of the explanations to the national car demurrage rules tentatively approved on April 11, 1911.
“The Interstate Commerce Commission, recognizing the great benefits to be derived from uniformity in car service rules, is desirous of lending its influence to the movement. The commission therefore tentatively indorses' the revised rules and explanations thereto adopted by the American Railway Association and recommends that they be made effective on interstate transportation throughout the country. This action is of course subject to the right and duty of the commission to inquire into the legality and reasonableness of any rule or rules which may be made the subject of complaint.
“By the Commission:
[Seal.] “John H. Marble, Secretary.”
The above-mentioned rules and their explanation, and the defendant’s revised rules promulgated July 5, 1912, are published in the record in parallel columns. The testimony having been returned to the court, by the defendant with its revised rules, the case came on for hearing, and the learned circuit judge found that the bill of complaint was well founded, and. that its prayer should be granted. A decree was entered reciting that it appeared to the court “that the State of Michigan and the defendant are without any power, jurisdiction, or authority to promulgate, establish, or enforce demurrage rules as to the transportation of property in commerce with foreign nations and among the several States, and the movement and use of cars,, vehicles, and other instrumentalities therefor, referred to in said bill of complaint as interstate commerce, or to establish demurrage rules applicable to all traffic beginning or ending within the State of Michigan, and it further satisfactorily appearing that it is impossible to have two sets of demurrage rules in existence within the State of Michigan, one affecting interstate traffic as aforesaid, and the other affecting transportation for hire of property in commerce wholly between points within the State of Michigan, referred to in said bill of complaint as intrastate commerce, and materially differing from each other, without the latter becoming a material burden upon and regulation of interstate commerce, and it satisfactorily appearing to the court that the rules promulgated and proposed to be enforced by said defendant, as set forth in said amended bill of complaint, would, if enforced, constitute a material burden upon and regulation of interstate commerce,” etc., the defendant was perpetually restrained from promulgating,, enforcing, or attempting to establish or enforce its said demurrage rules. The defendant has appealed.
By reference to the two sets of rules, the uniform rules, as finally revised, and the Michigan Railroad Commission rules, as revised on July 5, 1912, it may be said that they differ only as. follows: Three days for unloading coal allowed by the Michigan rules, as compared with two days allowed by the uniform rules. Three days- allowed for unloading lumber (except cargo and lightered lumber) allowed by the Michigan rules, as against two days allowed by the uniform rules. Three days for the loading or unloading of interior finish allowed by the Michigan rules, as against two days allowed by the uniform rules. Three days for loading cars with furniture loaded by several consignors allowed by the Michigan rules, as against two days by the uniform rules. Five days’ free time allowed by the Michigan rules for unloading cargo and lightered lumber as against two days allowed by the uniform rules. Five days allowed by the Michigan rules for loading, weighing, and billing coal at the mines, as against two days allowed by the uniform rules. Five days’ free time allowed by the Michigan rules for unloading coal to be used for fueling transient vessels, as against two days allowed by the uniform rules. One day to fit up cars with lining for the loading of potatoes allowed by the Michigan rules, as against no allowance for this service by the uniform rules. The allowance for bunching and weather interference, to shippers operating under the average time agreement, as provided in the Michigan rules, as against the elimination of such an allowance as provided by the uniform rules.
These, as we understand it, are the particular provisions, as to which complainants contend that the Michigan rules are more liberal to the shipper than the uniform rules. In other words, they insist that the shippers would receive more time, and would that much longer detain cars, if they were operating under the Michigan rules, than if they were operating under the uniform rules. As we understand complainants’ position it is that:
(1) The defendant has no power or authority to enforce demurrage rules as to shipments in interstate commerce.
(2) The defendant has no power or authority to promulgate and enforce demurrage rules applicable to intrastate commerce only, which materially differ from the uniform code, or which are unreasonable in themselves, for the reason that such rules constitute a regulation of, and burden upon, interstate commerce.
Answering the foregoing propositions, we understand the claim of defendant to be:
(1) Demurrage and car service rules concern intrastate service or traffic in all instances, whether the car is to move, or has moved, from point to point within the State, or is to move, or has moved, beyond the borders of the State; and the State, therefore, can regulate this traffic, unless it be limited by the exertion of the constitutional power of congress with respect to interstate commerce and its instruments.
(2) If it should be determined that demurrage rules do not in all instances concern intrastate traffic, nevertheless the State in the absence of Federal legislation and regulation, can make such rules and regulate such traffic, so long as its. regulation does not directly burden interstate traffic.
1. Has the Michigan Railroad Commission power or authority to make and enforce demurrage rules as to shipments in interstate commerce? It may be said that Federal jurisdiction as to interstate commerce is exclusive. By the Federal Constitution, congress is given express power “to regulate commerce with foreign nations and among the several States.” The nature and extent of the power conferred by this provision have been under consideration in a vast number of cases in the United States Supreme Court. A citation of the cases would cover many pages of this opinion. Many of them are referred to in the late case of Simpson v. Shepard, 230 U. S. 352 (33 Sup. Ct. 729, 48 L. R. A. [N. S] 1151. A reading of the several acts of congress upon the subject shows that that body, in the exercise of the broad and exclusive power conferred by the Constitution, has given the subject of interstate commerce most careful consideration, and its legislation upon the subject is very complete and thorough.
Has congress acted upon the identical question we are considering? On June 29, 1906, the interstate commerce commission act was amended in several particulars. In that part of section 1 which defines the term “transportation,” it was made to read as follows:
“The term ‘transportation’ shall include ears and other vehicles and all instrumentalities and facilities of shipment or carriage, irrespective of ownership or of any contract, express or implied, for the use thereof and all services in connection with the receipt, delivery, elevation, and transfer in transit, ventilation, refrigerating or icing, storage, and handling of property, transported; and it shall be the duty of every carrier subject to the provisions of this act to provide and furnish such transportation upon reasonable request therefor, and to establish through routes, and just and reasonable rates applicable thereto.”
By the same act (section 6), which provides for the filing and publishing of rates and schedules, that part of the paragraph relating to this question was made to read as follows:
“The schedules printed as aforesaid by any such common carrier shall plainly state the places between which property and passengers will be carried, and shall contain the classification of freight in force, and shall also state separately all terminal charges, storage charges, icing charges, and all other' charges which the commission may require, all privileges or facilities granted or allowed and any rules or regulations which in any wise change, affect, or determine any part or the aggregate of such aforesaid rates, fares, and charges, or the value of the service rendered to the passenger, shipper, or consignee.”
Here we have an express recognition of the fact that terminal and storage charges, and rules and regulations relating thereto, have a direct effect upon rates and charges. That demurrage is a terminal charge is, we think, beyond question. The act provides heavy penalties and liabilities for its violation. The administration of the law is expressly conferred upon the Interstate Commerce Commission.
A comparison of the language of the act, of congress with that of the Michigan Act No. 300 shows that the former was intended to control and cover every incident of interstate commerce, including receipt, delivery, elevation, transfer in transit, ventilation, refrigeration, icing, storage, and handling of property transported, all terminal charges, storage charges, and rules relating thereto, just as the Michigan act was intended to cover every incident of intrastate commerce, including “all services in connection with the receipt, delivery, elevation, switching and transfer in transit, ventilating, refrigeration or icing, storage and handling of * * * property transported between points within this State.”
We think that shipments for interstate commerce become impressed with the character of such commerce from the first receipt thereof, and this character continues until the final delivery thereof to the consignee. Such is the plain intent of the language of the Federal legislation, and the similarity of the language of the two acts is evidence that the Michigan legislature of 1909 had in mind the Federal legislation above referred to. It cannot be presumed that the legislature intended or attempted to invade the field covered by the Federal legislation, and thus render its own action invalid. The learned circuit judge quoted the following language found in the case of Chicago, etc., R. Co. v. Elevator Co., 226 U. S. 426 (33 Sup. Ct. 174, 46 L. R. A. [N. S.] 203):
“As legislation concerning the delivery of cars for the carriage of interstate traffic was clearly a matter of interstate commerce regulation, even if such subject was embraced within that class of powers concerning which the State had a right to exert its authority in the absence of legislation by congress, it must follow in consequence of the action of congress, to which we have referred, that the power of the State over the subject-matter ceased to exist from the moment that congress exerted its paramount and all embracing authority over the subject.”
We think that the above language is applicable to the question we are considering. Has the Interstate Commerce Commission acted? On March 16, 1908, the commission decided that demurrage rules and charges applicable to interstate shipments are governed by the act to regulate commerce, and therefore are within its jurisdiction, and not within the jurisdiction of State authorities. On May 12, 1908, the commission adopted the following rules with relation to demurrage on interstate shipments:
“Demurrage on Interstate Shipments. The act requires that carriers shall publish, post and file ‘all terminal charges * * * which in any wise change, affect, or determine * * * the value of the service rendered to the passenger, shipper, or consignee,' and all such charges become a part of the ‘rates, fares, and charges,' which the carriers are required to demand, collect and retain. Such terminal charges include demurrage charges.”
In the case of Wilson Produce Co. v. Railroad Co., 14 I. C. C. Rep. 170, decided June 24, 1908, this exact question was before the Interstate Commerce Commission, and it held that:
“The duty of regulating terminal charges, when related to traffic between the States, has been lodged with the Interstate Commerce Commission. A State statute fixing terminal charges is not controlling with respect to interstate transportation.”
This case involved demurrage charges which were held to be terminal charges, within the meaning of the interstate commerce act. Many cases are cited, and it was held that it was unnecessary to decide that the Federal authority over this subject was exclusive, inasmuch as congress had taken definite action, and removed the subject altogether from the field of State regulation. See, also, Lehigh Valley R. Co. v. United States, 188 Fed. 879 (110 C. C. A. 513); St. Louis, etc., R. Co. v. Edwards, 227 U. S. 265 (33 Sup. Ct. 262).
We have not referred to the action of the Interstate Commerce Commission to show necessarily that its opinion was conclusive, but to show that it has assumed to act under the law of congress. It is said by counsel for defendant that it has not adopted the revised rules of the American Railway Association, but has only tentatively indorsed them, as shown by the bulletin above quoted. To indorse' is to sanction, ratify, or approve. The difference between adoption and indorsement is not very important. But it is said that it has only tentatively indorsed the national rules. It is true that the commission has only approved of these rules by way of trial. That is probably all it would do in the adoption of any rules. They would be subject to the right of change or amendment.
We think that the pertinent question is: Has the commission so acted under the law of congress that it can be said that the subject is removed from State regulation? Such question must be answered in the affirmative. We adopt the language of the trial judge:
“When congress placed the instrumentalities and the cars and the terminal charges and the storage charges into the hands of the Interstate Commerce Commission, those who, as to interstate traffic, desired to complain must apply to that tribunal for an adjustment of their grievances. The Michigan law, in so far as it attempts to give jurisdiction to a different tribunal, has invaded the domain of congress, and its enactment is of no force.”
We are forced to the conclusion, therefore, that the amendments of 1911 are without force or effect in so far as interstate commerce is concerned. By the Federal Constitution the subject of interstate commerce is within the exclusive jurisdiction of congress and congress has, by its legislation, taken possession of the entire subject. Therefore it is obvious that “demurrage rules applicable to all traffic beginning or ending within this State” can only apply to traffic beginning and ending within this State. Upon this branch of the case we agree with the circuit judge.
2. This brings us to the second proposition of complainants. We are of the opinion that any car service on a car which has moved or is about to move in intrastate commerce is intrastate, and therefore within State authority. In so far as the rules promulgated by the defendant apply to cars that are moving from point to point within this State, they are valid. The 'mere fact that those rules differ from the uniform rules in a few instances does not render them invalid, when applied to intrastate traffic. We have read this record carefully, and are unable to say that the Michigan rules, when applied to Michigan traffic, are unreasonable in themselves, or that they constitute a regulation of, or a burden upon, interstate commerce. It should be borne in mind that by section 26 of the Michigan act of 1909 it is provided that:
“In all actions under this section the burden of proof shall be upon the complainant to show' by clear and satisfactory evidence that the order of the commission complained of is unlawful or unreasonable, as the case may be.” Michigan Central R. Co. v. Railroad Commission, 160 Mich. 355 (125 N. W. 549).
We do not think that the complainants have sus tained the burden of proof placed upon them by this statute. Much more might be said upon this branch of the case, but, as this opinion is already too long, we refrain from stating our reasons at length, for the conclusion reached.
Our attention has been called to the opinion of the Supreme Court of the United States in the Shreveport Case, filed June 8, 1914. We do not think that case controlling here, for the reason that in that case the Interstate Commerce Commission had acted, and had found that the State action was unreasonable. We do not find such action here unreasonable, when applied to State traffic.
The decree of the circuit court will be modified in accordance with the views here expressed, and the injunction will be so modified that the defendant will be permitted to enforce its rules as to intrastate traffic only. No costs are awarded to either party.
McAlvay, C. J., and Ostrander, Moore, and Steere, JJ., concurred. Brooke, Kuhn, and Bird, JJ., did not sit. | [
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] |
Brooke, J.
The bill of complaint in this cause is filed by the complainants for the purpose of enjoining a threatened breach of a building restriction. The property in question is situated at the northwest corner of Chandler and Oakland avenue in the city of Detroit.
It appears that Edwin B. Robinson, who was the owner of the subdivision at the time it was platted, conveyed the lot in question (No. 50) to one William A. King. The deed in question contained the following restrictive covenant:
“The said second party hereby agrees not to build or cause to be built on the front of lots 11 and 22 any other than a brick or stone dwelling to cost not less than $4,000.00, and on the front of the remaining lots none other than a dwelling to cost not- less than $2,500.00, any and all of which are to stand back 20 feet from the street line of Chandler avenue and to be at least two stories high.”
King sold the lot in question to Bamlet, without restriction; Bamlet sold to Irwin, without restriction; Frank L. Irwin sold to Estella G. Irwin, without restriction ; and Estella G. Irwin sold the lot to defendant Goldberg September 1, 1912.
This is the third time the question of restrictions upon Chandler avenue has been before this court. In Tillotson v. Gregory, 151 Mich. 128 (114 N. W. 1025), an attempt was made to restrain the defendant from building a dwelling house for the use of more than one family, which failed. In Erichsen v. Tapert, 172 Mich. 457 (138 N. W. 330), an attempt was made to erect a store building on lot 49, immediately across the street from the lot in question in the instant case. The construction of said store building was enjoined by the circuit court, and on appeal to this court the decree was affirmed. There was considered in that case, however, an agreement signed by various lot owners, among them the owner of lot 49, containing covenants between each other restrictive in character. At the time that agreement was executed the owner of lot 50 declined to sign it, as it appears from this record. In that case, while there was a dissenting opinion as to the effect of the restrictive covenants contained in the contract, the court was unanimously of the opinion that the lot was, in any event, subject to the general restrictions pointed out in Tillotson v. Gregory, supra.
It is urged in the instant case, as it was urged in Erichsen v. Tapert, supra, that the covenant between Robinson and King was a personal one not running with the land. This contention we think untenable and direct attention to the authorities cited in Erichsen v. Tapert, at page 462 of 172, Mich. (138 N. W. 330), touching the question. But it is contended on behalf of defendants that, even though the restriction is enforceable, in any event, it covers only the front of the lot, and the rear portion thereof might be used for business purposes. We cannot agree with this position. It is clear that the front of the lot, by the terms of the restriction, must be occupied by a dwelling house only which shall stand back 20-feet from the street line. How far back from that line the house is to extend is undetermined by the restriction. If complainant’s contention is correct, one owner might use 50 feet of the rear of his lot for business purposes, while his neighbor might be able to utilize but 20 for that purpose.
We are of the opinion that the peculiar language of the restriction was rather intended to fix a uniform building line back from the street front, and that the clear intention of the parties was to prevent the erection of any building upon the lot to be used for business purposes.
The decree of the circuit court stands affirmed, with costs.
McAlvay, C. J., and Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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Stone, J.
The principal question involved in this case is: Were certain provisions contained in the will of Elizabeth A. Hartlerode, deceased, procured by and through undue influence?
The will in question bears date February 19, 1913. The pertinent provisions are as follows:
"First. I will and bequeath to my beloved husband, Charles Hartlerode, Sr., all my real estate, including our home, situated in the county of Berrien, township of Pipestone, in the State of Michigan, and all my personal property during his life.
“Second. At the death of my said husband, it is my will and wish that one-half of my personal property and one-half of my real estate shall go to and vest in Winifred Thomas, wife of William Thomas, of Chicago, and that the balance of my said personal property and real estate shall go to, and become the property of St. Alban’s Episcopal Church, now located at No. 4338 Prairie avenue, Chicago, Illinois.
“Third. In case of the death of the said Winifred Thomas, prior to my death, or prior to the death of my said husband, it is my will and wish that the one-half of my real and personal property herein above willed to her, shall go to and become the property of Charles Kenneth Thomson, now rector of the said St. Alban’s Episcopal Church.
“Fourth. It is my will and wish that in case of the death of both the said Winifred Thomas and the said Charles Kenneth Thomson before my death, or before the death of my said husband, then all of my property, both real, personal and mixed, shall go to, and become the property of the St. Alban’s Episcopal Church.
“Fifth. I nominate and appoint my said husband, Charles Hartlerode, my executor.”
The said husband was the proponent of the will. Numerous objections to the probate of this will, including undue influence, were filed in the probate court by Winifred Thomas, daughter of deceased, but no contest was really made in that court, and the will was there admitted to probate. Contestant appealed to the circuit court, and there gave formal notice that on the trial she would only attack the provisions and bequests in said will, giving certain property of deceased to the St. Alban’s Episcopal Church, located at No. 4338 Prairie avenue, Chicago, and Charles Kenneth Thomson, rector of said above named church.
At the trial in the circuit court, at the close of the testimony, the court directed a verdict and judgment for the proponent, and the will was admitted to probate. Contestant has appealed, and the principal con tention is that there was a question for the jury upon the subject of undue influence. In stating the case the contestant’s evidence is to be considered in its aspect most favorable to her; for, if, in giving contestant’s evidence its strongest probative force, it was sufficient, unexplained, to support a verdict, then she was entitled to have the case submitted to the jury.
Contestant’s evidence tended to show that decedent came from England to this country a number of years ago, locating in Chicago, where she followed the occupation of a nurse, and, after residing there for a number of years, she went to Berrien county, Mich., where she married Charles Hartlerode in 1900. They lived upon a farm in Berrien county during the whole of their married life until she went to Chicago, as hereinafter stated. Mrs. Hartlerode contracted pulmonary tuberculosis, from which she died April 17, 1913. Contestant is the only child of decedent, and has been for a number of years living in Chicago. Decedent, on the 21st of September, 1912, went from her home in Berrien county to Chicago for the purpose of obtaining medical treatment, took apartments with contestant, and remained with her until January 14, 1913. For the purpose of accommodating her mother, contestant was obliged to move to a house with additional rooms, which she did. Contestant was married in 1894, and, after some domestic differences, she and her husband separated January 14, 1913. Prior to their separation it was arranged between decedent and contestant that they were to occupy rooms together, but decedent afterwards concluded that would be too much of a burden for contestant to assume, so she made an arrangement to, and did, go to room with a Mrs. Brock, who resided in premises adjoining those decedent had occupied while staying with her daughter and son-in-law.
Rev. Charles Kenneth Thomson was the rector of St. Alban’s Episcopal Church, which church is situated in the vicinity of Mrs. Brock’s premises. Mrs. Anna Cragg is a member of the Episcopal Church, and was the wife of a deceased brother of Mrs. Hartlerode. Decedent was not a member of any church, and had never seen the St. Alban’s Church building, and had never seen the Rev. Thomson until he made a call upon her while she was living with contestant. He called upon her at the request of Mrs. Cragg for the first time about the middle of October, 1912, and continued his visits until decedent went to a hospital on March 10, 1918. Decedent was confirmed as a member of St. Alban’s Episcopal Church the day before she was taken to the hospital.
From the time decedent went to Chicago for medical treatment she gradually failed until her death, at the date above stated. She was weak, changeable, and easily influenced.
Decedent, just prior to the signing of the will in question, was the owner of 21 acres of land in Berrien county, which was subject to a life estate of her husband, and she was . also the owner of personal property, including three notes, aggregating about $700. The real estate was worth from $1,000 to $1,200, and the personal property, outside of the promissory notes, only amounted to a few dollars. Mr. Ayres, an attorney, who drew the will in question, was a witness for proponent, and testified that he was called over the phone and requested to draw the will; that he did not know who called him, but it was not Rev. Thomson; .that in accordance with the request he called, but did not draft the will until he had called there three or four times; that upon his arrival he found Mr. and Mrs. Hartlerode alone; that he talked with them at length about the proposed will, and about the deed which she had from her husband, and advised that the husband deed absolutely to her, as there was some question in the mind of the attorney about the validity of the deed. Later, upon being notified, he drew a deed from the husband to decedent and a will like the one signed, except that it referred to contestant as her daughter. Decedent objected to signing it on account of such reference, and the will was redrafted, eliminating such reference. Rev. Thomson visited decedent the day the will was taken to her for her signature.
Just prior to going to Chicago, decedent, in September, 1912, had made a will giving all of her property to contestant (subject to a life estate in her husband), except that she thereby gave $350 to one Alonzo Asel, a boy that decedent and her husband had taken from the Children’s Home at Coldwater. On February 18, 1913, on the advice of the attorney aforesaid, Mr. Hartlerode gave an absolute warranty deed to decedent covering the 21 acres of land, and on February 19, 1913, while decedent was confined to her bed, she signed the will in question. The attorney made no charge for his services. Two of the witnesses to the will were members of St. Alban’s Episcopal Church, and had called on decedent frequently prior to the time she was removed to the hospital. Neither the Rev. Thomson nor either of the witnesses to the will called to see decedent after she was removed to the hospital. The contestant visited her mother every day while she was living with Mrs. Brock, and called nearly every day while she was at the hospital. Contestant was not present when the will in question was signed. Upon the trial Mrs. Brock, among other things, testified as follows:
“Q. Did she ever say anything regarding Mr. Thomson in connection with the will?
“A. Not at that time; no, sir.
“Q. Did she later?
“A. Only to the effect that Mr. Thomson having called, and not having — her not having sufficient money that she could give him, or pay for his trouble, he thought it was no more than right that she should donate some of her property, should she have any, to the church.
“Q. How long was this after she came to your house that she began talking about that?
“A. About four weeks.
“Q. Did she talk about it more than once?
“A. Well, that was somewhere around in February some time, and then she told me she was having a new will drawn up, and through Rev. Thomson she. had secured a lawyer who would draw up the new will, and in that way — she didn’t tell me the contents of the will, but she told me the will was changed, in which Mrs. Thomas would not get the full amount of the will.
“Q. Did she say why that change was made?
“A. Only as I said, that she thought that — the minister thought that they ought to get some of the money as long as they — she was going to be a member of the church.
“Q. Did she say anything to you about what it cost her to have the will drawn?
“A. She told me the lawyer who drew up the will, his charges were usually $25, but as a favor he would charge $10, and then she said that he charged her nothing, being a friend of Rev. Thomson. * * *
“Q. Were you at home the day they came to draw the last will?
“A. Yes, sir.
“Q. Do you know whether or not Mr. Thomson was there that day?
“A. He was there; yes, sir.
“Q. Do you know whether or not he talked with Mrs. Hartlerode?
“A. Yes, sir; he did, in my room, which happened to be my parlor. He was there not more than ten minutes.”
This witness also testified that decedent told her that she always preferred seeing Mr. Thomson alone, and that she did so.
Contestant testified in part as follows:
“I am not personally acquainted with Rev. Charles Kenneth Thomson, but I let him in my house on his first visit to see my mother. My mother did not know he was coming; thought at the time that he was a traveling salesman. He told me he was an Episcopal preacher, and had been sent there by Mrs. Anna Cragg. I think he called there about eight times to see my mother at my place. I think he was there three times in the daytime, and the other times he would come just before I would leave for my work, so I don’t know how long he would remain. Mrs. Anna Cragg is a sister-in-law to my mother; married my mother’s brother, who has been dead for several years. Mrs. Cragg was only at my house twice to see my mother, to my knowledge. My mother talked with me about her property when she first came to my house. She told me she had made a will in Benton Harbor, and had left the bulk of her property to me, with the exception to Alonzo Asel, a boy she took out of the orphans’ home in Michigan. After that my mother told me that she might change it in favor of my husband; that she would give the property equally to my husband and myself, provided we live together. She asked me if I was willing, and I told her I was. She told me up to the time she left my house, that she had left everything to me, with the exception of a little money to that boy. After she left my house she talked with me one day about Rev. Thomson, and said she didn’t know how to repay the minister for his visits, and said, ‘Of course you know, Daughter, ministers, as a rule, expect a little fee every time they call,’ and of course I didn’t know that, and she said, ‘I am not able to pay that fee,’ and she said — he said —the minister said to her that she really ought to leave something to the church, and she said, T don’t know what to do about it.’ She said that he said he ought to be left something and also the parish; that is what she told me.”
Mr. Hartlerode, husband of decedent, was sworn in behalf of proponent and legatees, and on his direct examination testified as follows:
“Q. Did your wife explain to you why she wanted to give a portion of this property to St. Alban’s Church?
“A. Well, she thought they had helped her on the road to God, you might as well say.
“Q. Did she ever tell you that Rev. Thomson had asked her for any property?
“A. No, sir.”
There seems to be no question that a confidential or fiduciary relation existed between decedent and the Reverend Mr. Thomson. It is the claim of appellant that, this confidential relationship having been established, a prima facie fact of undue influence was proven, without proof of any additional facts, which fact required proof on the part of proponent to overcome, and the weight of the testimony, both for and against, was for the jury.
Mr. Thomson was not sworn in the case. It was competent, under our rulings, to admit evidence of statements made by decedent, at and about the time she made the will, as to the conduct of a legatee. In re Foerster’s Estate, 177 Mich. 574-587 (143 N. W. 616).
Taking into consideration the significant facts that decedent, up to within a few weeks of the making of the will in question, was an entire stranger to both St. Alban’s Church and its rector, that she willed to them a substantial part of her property, thus changing a former will, in which she had disposed of the same to the natural object of her bounty, did not the duty then devolve upon the legatees to explain the cir-' cumstances in such a manner as to exonerate them from the use of undue influence? St. Alban’s Church could only act through its agents or representatives. The Reverend Mr. Thomson stood in'that relation, and whether the property was willed to him personally, or to the church which he represented, was he not called upon here to show that the presumption of undue influence should not prevail under the circumstances of the case? In other words, was not the contestant, in the state in which the evidence left the case, entitled to have it submitted to the jury? There are certain cases in which the law indulges in the presumption that undue influence Has been used, as where a patient makes a will in favor of his physician, a client in favor of his lawyer, or a sick person in favor of a priest or spiritual adviser, whether for his own personal advantage, or for the advantage of some interest of which he is a representative. This rule has been recognized and applied by us.
In Re Bromley’s Estate, 113 Mich. 53 (71 N. W. 523), the jury was charged as follows:
“Where a person devises his property to one who is acting at the time as his attorney, either in relation to the subject-matter of the making of the will, or generally, during .that time, such devise is always carefully examined, and of itself raises a presumption of undue influence. But this is by no means a conclusive presumption, but it is one that may be overcome by evidence.”
This court, in affirming the judgment, said:
“We think the charge, as a whole, correctly indicated to the jury that the burden does rest upon the proponent to overcome the presumption that arises from the confidential relation.”
In McPherson v. Byrne, 155 Mich. 338 (118 N. W. 985), where defendant, a priest, claimed to be the owner of certain certificates of deposit, as a gift from deceased while she was in extremis, this court, in referring to the confidential relation, stated:
“That the burden of proof in such a case as this rests upon the one occupying a confidential relation is clearly settled by the authorities. See In re Bromley’s Estate, 113 Mich. 53 [71 N. W. 523]; Ross v. Conway, 92 Cal. 632 [28 Pac. 785].”
To the same effect are In re McMaster’s Estate, 163 Mich. 210 (128 N. W. 259); Conklin v. Conklin, 165 Mich. 571 (131 N. W. 154). In the last-cited case Justice Blair, speaking for the court, said:
“The relations of defendant Conklin to testatrix raised a presumption of influence which would call for explanation on his part.”
The case of Ross v. Conway, supra, is worthy of examination on this subject.
We are of opinion that enough was shown by contestant to raise a presumption of undue influence, which was not overcome by evidence, and that the question should have been submitted to the jury, under proper instructions. As the case must go back for a new trial, we would sáy that we think that the trial court should have permitted the answers to the questions asked of Dr. Moore to have been read to the jury. This deposition had been taken in Chicago. While other answers which were permitted to be read render the answers objected to somewhat unimportant, yet we think they were unobjectionable.
We find no other errors in the record.
The judgment of the circuit court is reversed, and a new trial granted.
McAlvay, C. J., and Brooke, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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Ostrander, J.
Alleging in his declaration that the defendant, his employer, set him at work dangerous to life and limb, that he was within the protection of the statute (Act No. 285, Pub. Acts 1909, 2 How. Stat. [2d Ed.] § 4009 et seq.), and that he was, without fault on his part, injured in performing his work, plaintiff sued for and recovered a judgment for damages. A motion for a new trial was refused. Whether, considering his age,, the employment, and the instructions which were given him, plaintiff’s injuries were due to his own negligence was the principal issue at the trial and is the principal question presented by the record before us; it being contended that upon this point a peremptory instruction should have been given in defendant’s favor. That the instructions given were prejudicial, and that, in any event, a new trial ought to have been granted, are other contentions of appellant.
There seems to be no particular dispute about plaintiff’s age. That he was injured upon one of defendant’s machines at which he was assisting another and mature operator in the operation of trimming veneer is clear. It is a contention of defendant that the plaintiff’s duties, if performed according to the nature of the work to be done and the instructions which were given, placed him in no danger and made his injury impossible. As it was, instead of keeping a position at a distance from the cutting knife of the machine — a position which defendant says was assigned him by the operator and indicated by the very nature of the work — it occurred that plaintiffs wrist was cut by the knife when it was set in motion by the operator. If plaintiff was not instructed, but, being called upon to assist the operator, was left to himself to measure the assistance he ought properly to give, depending upon the operator not to set the knife in motion while he was in danger, he might or might not be considered negligent, depending upon the judgment a youth of his age and experience, called upon for the first time to perform the service, ought to have exercised. The testimony is conflicting. Inferences may be, and it is claimed by appellant ought to be, drawn from the nature of the injury inflicted. Such inferences are drawn, by counsel, in argument. I am impressed that the contention cannot be decided as matter of law, and that it was not error to submit it to a jury.
It is pointed out that in one portion of the charge the court said, in defining “negligence” and in applying the definition, that if plaintiff—
“Did not use the care and prudence that an ordinary man would under such circumstances, but put his hand through without caution and care, and without calling the attention of anybody to the matter, or without instructions from any person to put his hand under the knife, unless he thought it necessary in the performance of his work, then I charge you he would be guilty of negligence, and if he was guilty of negligence, he cannot recover in this case.”
It is argued that the theory of recovery suggested in the instruction is not the theory of the declaration, which alleges the performance of a duty in accordance with orders — that plaintiff was ordered to do that which he did do. It is further argued that an im proper standard was set up when it was suggested that what plaintiff thought was his duty, or thought was necessary to be done in performing it, was substituted for what he was or ought to have been instructed to do, or what was obviously necessary to be done within his instructions and his experience. It seems to be clear from a reading of the entire charge that the court had im mind, when the phrase I have italicized was used, an element which is plainly in the case and has already been referred to. To order an inexperienced and youthful employee to assist another to do a particular thing, and to stop there, may be to leave to inexperienced judgment the details, the method, of rendering assistance. Plaintiff says in the case at bar, that he was ordered to assist the operator of the machine, but was not told, except in a general way, how to assist, what to do, or what not to do, that he supposed he was doing a proper thing when he was hurt, and that while he was doing it the operator would not set in motion a knife which, when his hand approached it, was not in motion and could not be put in motion except by the act of his fellow workman. It is obvious that, as the jury found the plaintiff was performing or was not performing his apparent duty, it would find the employment dangerous or otherwise. There is no variance. The case submitted is the case alleged in the declaration and the case made by the testimony. If the plaintiff ought to have known better, was reckless or careless, he should not ask defendant to repair the consequences of his fault. This the court, in substance, told the juryr The whole charge was favorable, rather than unfavorable, to appellant.
While several witnesses sworn for defendant contradicted plaintiff in regard to the instructions given him, there were circumstances proven by which the truthfulness of the testimony might be, in some de gree, tested, which, made the issue particularly one to be decided by a jury. The case for defendant is not so strong that we may say the verdict should be set aside because against the weight of evidence.
Appellant preferred a number of requests to charge based upon a claimed misrepresentation of plaintiff with regard to his age when he sought and entered upon the employment. In some of them the ruling asked for is, in substance, that as plaintiff represented himself to be, so his employer had the right to believe him to be and to instruct him accordingly, and so the jury had the right to and should regard his conduct. Questions of more than ordinary interest are thus suggested and discussed by counsel for appellant, but they are not properly for discussion because defendant’s witness who hired plaintiff does not pretend that the plaintiff misrepresented his age, nor claim to have taken any precautions or to have entered upon any investigation of the matter. He thought, he says, from plaintiff’s appearance, that he was “anywhere from 17 to 19 years. Somewheres along in there.” True, plaintiff testified that he told this witness that he was 17 years of age when, in fact, he was 16 years and 2 months old. But defendant’s agent did not, according to his testimony, rely upon what. plaintiff told him, but did rely upon his own judgment. Upon this point the case at bar and Syneszewski v. Schmidt, 153 Mich. 438, 444, 445 (116 N. W. 1107), cannot be distinguished. What was there said is applicable here.
I do not find reversible error made out, and think therefore the judgment should be affirmed.
McAlvay, C. J., and Brooke, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred. | [
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Steere, J.
Plaintiffs and appellants herein seek, by certiorari, review and reversal of certain “Proceedings and Decisions and Awards,” had and made before and by the Industrial Accident Board of this State, which culminated in the following final order:
“Alden Spooner, Claimant, v.
“Estate op P. D. Beckwith & Fidelity & Casualty Company op New York, Respondents.
“This matter having come on to be heard upon the petition of the respondent filed herein, praying for relief and to stop compensation for reasons set forth in said petition, and, after full examination of the proofs, upon said petition, and hearing (argument thereon, and due consideration thereon having been had, and it appearing to the board that the facts alleged in said petition as reason for stopping compensation are not sustained by the proofs, it is ordered and adjudged that the said petition be, and the same is hereby, dismissed.”
It appears undisputed that said Alden Spooner was regularly employed as a molder by the above corporation, known as the “Estate of P. D. Beckwith,” of Dowagiac, Mich., which, as an employer of labor, had, with approval of the Industrial Accident Board, elected to come under the provisions of Act No. 10, Public Acts of 1912, Extra Session (2 How. Stat. [2d Ed.] § 3939 et seq.). While regularly engaged in its employment as a molder Spooner suffered an accident resulting in an injury to his right eye, described by his employer, in its report made under the requirements of section 16, part 3, of said act, as follows:
“Molten iron splashed into right eye, right eye burned.”
Section 5 of part 3 of said act provides:
“If the employer, or the insurance company carrying such risk, or commissioner of insurance, as the case may be, and the injured employee reach an agreement in regard to compensation under this act, a memorandum of such agreement shall be filed with the Industrial Accident Board, and, if approved by it, shall be deemed final.and binding upon the parties thereto. Such agreements shall be approved by said board only when the terms conform to the provisions of this act.”
Pursuant to the provisions of this section the following was filed with the Industrial Accident Board, on November 14, 1913:
“Agreement in Regard to Compensation.
“We, A1 Spooner, residing at city or town of Dowagiac, Mich., and Fidelity & Casualty Co., of N. Y., have reached an agreement in regard to compensation for the iiy'ury sustained by said employee while in the employ of Estate of P. D. Beckwith, Inc., Dowagiac.
“The time, including hour and date of accident, the place where it occurred, the nature and cause of injury and other cause or ground of claim, are as follows:
“Mr. Spooner was injured Oct. 22, 1913, about 4:30 p. m. Molten iron splashed into right eye, causing bad burn in corner of eye.
“The terms of the agreement follow: $17.60 wages earned; $8.80 compensation agreed upon.
“Al Spooner.
“Fidelity & Casualty Co., op N. Y.,
“By Leo A. Donahoe,
“Witness: Wm. Hurst.
“E. A. Miecham.
“Dated at Dowagiac, Mich., this 12th day of November, 1913.”
This agreement was approved by the Industrial Accident Board on November 14, 1913, and thereafter compensation was paid accordingly from October 22, 1913, to January 14, 1914. On January 21, 1914, ap pellants filed with, the Industrial Accident Board a petition asking to be relieved from further payments, based upon the following letter or report, addressed to Dr. Jones, the local physician who attended Spooner professionally at the time of his injury, and who had referred him to Dr. Bonine, an eye specialist:
“January 15, 1914.
“Dr. J. H. Jones,
“Dowagiac, Mich.
“Dear Sir:
“I have had Mr. Spooner under my careful scrutiny and find the following condition: Some years ago I operated for cataract on one eye and obtained good results — above the average. The other eye shows signs of the same trouble at this time. That, however, is not strange as it is the rule with senile cataracts if they come on one eye they are quite certain to grow on the other, as you know.
“Therefore there is nothing unexpected about the remaining lens filling in, so can’t see where any one could be held responsible for present conditions, as no other pathological condition of the orbit is in evidence.
[Signed] “F. N. Bonine, M. D.”
Upon the hearing of said petition depositions of Drs. Jones and Bonine were introduced in evidence. The board thereafter made the following:
“Findings op Fact.
“(1) The respondent, Alden Spooner, was employed in the plant of the Estate of P. D. Beckwith, Inc., as a molder, and had worked there for several years in that capacity. He was 65 years old, and at the time of the injury was receiving wages of $17.60 per week.
“(2) That on October 22, 1913, respondent while attending to his duties as a molder, received an injury to his right eye by having hot sand and other substances splashed into the same, producing an inflammation necessitating immediate medical attention and causing disability to do work.
“(3) That in 1905 respondent had a cataract removed from his left eye by Dr. F. N. Bonine, and that such operation was successful and the result thereof above the average.
“ (4) That respondent’s right eye, being the one injured in October, 1913, has now developed a cataract, which is so far advanced that he can discern light, but has practically no vision. His left eye, operated on in 1905, is of little use, and he is in a condition of total disability on account of the condition of his said eyes.
“(5) That the claim of petitioners that the present condition of respondent’s right eye is due not to the injury thereof on October 22, 1913, but that such condition is due to senile cataract, is not sustained by the evidence.
“(6) That the present condition of respondent’s right eye and his resulting disability is due to the injury received by him October 22, 1913.
“(7) That all of the proposed findings of fact of petitioners, not included in these findings, are refused.”
Against the action of the Industrial Accident Board in this matter, appellants urge two major grounds of reversal: First, that the controlling findings of fact are unwarranted and unsupported by evidence; and, second, “insufficiency of proceedings.” In explanation of the latter it is stated that not the legality, but the sufficiency, of the proceedings is questioned, in the particular that, although appellants in support of their petition produced proof which established—
“Spooner was suffering with a senile cataract, and that his disability was not a result of his injury of October 22, 1913, yet the Industrial Accident Board refused to accept the unchallenged testimony of the physicians, and without any further evidence whatsoever, as to Spooner’s precise condition, with respect to his eyes, entered an order denying appellants’ petition, which order is so vague, uncertain and indefinite that it may work irreparable damage to appellants, * * * ” and “that appellee has never produced any proof that he sustained an injury while in the employ of the Estate of P. D. Beckwith, Inc.; that there is no evidence that his disability or impairment of eye sight were a result of his accident of October 22, 1913, as well as that it did not exist for some time prior to the date mentioned; that at no time has any admissible evidence been offered relative to his present condition, whether the sight of the left eye operated on in 1905 is good, or in any degree impaired, and if impaired to what extent, nor is there any testimony as to the exact condition of the right eye, in which grains of sand lodged on October 22, 1913, and whether the sight in that eye is impaired, permanently or partially, or to what degree.”
In the latter particular appellants disregard the significance of the report and agreement as to compensation filed by them, which eliminate the various statutory steps of arbitration now urged as imperative. The agreement, filed with and approved by the board, is a substitute for, and, under the statute, the legal equivalent of, an arbitral award. They have equal force and like standing when, to enforce recovery it becomes necessary to put them in judgment in the circuit court for the county where the accident occurred (section 13, part 3, of said act). The power of the board to act upon a petition such as appellants presented in this case is found in the following section (14), which authorizes it to review any weekly payment at the request of the employer, insurance company carrying the risk, commissioner of insurance, or employee, “and on such review it may be ended, diminished or increased, subject to the maximum and minimum amounts above provided, if, the board finds that the facts warrant such action.”
On the hearing of such petition for review it can be stated as a general rule that the essentials leading up to the award, or its equivalent, are to be taken as res adjudicata, except the physical condition of the injured employee, which naturally and legally remains open to inquiry. Mead v. Lockhart, 2 B. W. C. C. 398.
We discover no claim in this record that appellants were induced to enter into the agreement regarding compensation by fraudulent misrepresentations of the other party. It is established beyond question by their own representations that Spooner was injured on October 22, 1913, while working as a molder for the Estate of Beckwith, by “molten iron splashed into right eye; right eye burned;” that he was treated by Dr. Jones, one of their witnesses, on October 23d, 27th, 30th, and 31st. Dr. Jones, a physician in general practice, testified that he found small, black particles of foreign substance in the right eye and inflammation in the conjunctiva, but neither it nor the cornea were abrased or penetrated; that the inflammation was slow in disappearing, and continued over several weeks — four or five weeks before it disappeared— that he thought it a case which needed the service of a specialist, and referred the patient to Dr. Bonine. The only reference in Dr. Jones’ testimony to a cataract is found in this answer to a question, on cross-examination, whether he thought the injury he treated would cause, or help cause, a cataract.
“A. Well, upon technical points, the substance of special matters bearing upon the interior conditions of the eye, I don’t make a special work of if. I would state, however, severe injuries to the eye do cause cataracts. I do not make a practice of treating conditions that involve the interior of the eye, but I refer them to a specialist.”
We see no force in the contention that at the time of settlement Spooner was not suffering from an injury which arose out of and in the course of his employment. The manner of the accident and condition of the eye were then open to appellants’ investigation, and unquestioned. After ample time and opportunity to learn fully of the accident and history of the case from the physician in charge, the injured employee, and all other sources, the agreement was made on November 12th following. We find no testimony tending in any manner to show that prior to the accident there was any cataract or impairment of vision in, or trouble with, this right eye. Thereafter its vision was impaired, and a state of inflammation, slow in healing, led the local physician to refer the patient to a specialist, who, on December 20, 1913, discovered an immature, developing cataract, the existence of which was undisputed at the time of hearing.
Dr. Bonine testified that when he examined the injured eye, on December 20, 1913, “there was irritation of the eye that could be attributed to an inflammatory state of traumatism producing it, or hardness of the eyeball would cause a largeness of the vessels of the eye, would give it that appearance;” that he found a pretty well-advanced cataract on that eye, but could not tell how long it had been forming, because he had not seen Spooner, except casually, since he operated on his left eye for a cataract eight, years previous, in 1905. In explaining the nature of cataracts, witness stated that there were three distinct ways in which they are formed, the simplest being a traumatic cataract, caused from an injury, the second a senile cataract, caused by an interference with the nourishment of the lens through diseases of the inner tissues, and the third hereditary, or resulting from hereditary tendency; that a traumatic cataract would usually come in from one to three or four weeks after an injury, or sometimes instantly if the lens was pierced so that the aqueous humor came in contact with it; asked if this was a traumatic or senile cataract, he answered:
“A senile. * * * It is the rule when a cataract comes on one eye the tendency is to form on the other; not necessarily, but it is the rule, and not concurrent. * * *
“Q. Could you determine, in saying, whether this was a senile or traumatic cataract?
“A. The stage of inflammation had gone on until it would be a difficult matter to do that. The only indi cation had was irritation or flushed eyeball that I spoke of at first; that was traumatism.
“Q. Has the cataract grown since you first saw Mr. Spooner in December?
“A. From the first to the last the vision has decreased decidedly. * * *
“Q. If this was a traumatic cataract, would it have been probably fully developed by December 20th, in 8 weeks?
“A. Depending upon the severity of the injury. If the injury was slight, it would develop slowly.”
Being asked on cross-examination, “In your opinion, doctor, is there any connection between the cataract on the left eye and on the right?” he answered:
“The only connection established would be the rule of the formation of cataracts, as over 80 per cent, of cataracts that form first in one eye would later form on the other, 20 per cent, of one eye will be cataracts, a-nd the other eye not at all, so that is the only relation one eye could have to the other.”
The doctor nowhere testifies that the cataract removed by him from the left eye over eight years before was senile, but such possibly may be inferred from his testimony, especially when considered in connection with his letter to Dr. Jones.
Section 12, part 3, of said Act No. 10, under which these proceedings are had, empowers this court to review only questions of law; all questions of fact determined by the board from competent evidence being conclusive, in the absence of fraud. It must be conceded, as urged by appellants, that the record discloses no testimony, competent or otherwise, to sustain the finding:
“His left eye, operated on in 1905, is of little use, and he is in a condition of total disability on account of the condition .of his said eyes.”
This finding, however, tends only to confuse, and must be eliminated from consideration, not only because it has no evidential support in the case, but no claim was ever made for injury to the left eye, and its condition is not in issue. With it eliminated, there is sustaining evidence for the remaining findings of fact essential to support the order sought to be reversed.
The controlling issue raised before the board by appellant’s petition for review was whether they had by their evidence conclusively established that the cataract which appeared in claimant’s right eye after the injury was senile, and therefore not connected with, or attributable to, such injury. To sustain appellant’s contention here this court must therefore be able to say, from the whole record, as a conclusion of law, that the Industrial Accident Board must find, not could find, as a conclusion of fact, that the cataract in the injured right eye is senile and not traumatic, and that Spooner was not, at the time of hearing said petition, under any incapacity attributable to the accident, and resulting injury to that eye, on October 22, 1913.
We conclude that upon such issue different inferences of fact could legitimately be drawn from what the record discloses and, in such case, where the board does not find “that the facts warrant such action” as may be requested under section 14, part 3, of the act creating said board, the court cannot disturb its findings and orders thereon, made while acting within the authority there conferred.
The order complained of is therefore affirmed.
McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Bird, and Moore, JJ., concurred. | [
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] |
Bird, J.
The respondent was convicted in the recorder’s court in the city of Detroit for having violated the provisions of Act No. 105 of the Public Acts of 1911 (2 How. Stat. [2d Ed.] §2880 et seq.), in that he loaned money at a rate of interest in excess of 7 per cent., without having first applied for and obtained a license for carrying on such business, without having paid the license fee, and without having given an approved bond in conformity with said act.
The defense principally relied upon is that the law is unconstitutional. The grounds of attack are:
(1) The title of the act is defective in that the object of the law is not therein expressed.
(2) The act creates class legislation.
(3) The act is not a valid exercise of the police power of the State.
1. Section 21 of article 5 of the Michigan Constitution provides that:
“No law shall embrace more than one object, which shall be expressed in its title.”
It is the claim of respondent that this provision of the Constitution has not been observed in the passage of the law under which respondent stands convicted. The title of the act reads:
“An act relative to the loaning of money and prescribing rates of interest, penalties and forfeitures for violations * * * of such act, and repealing acts numbers 334 and 337 of the Public Acts of 1907.”
Under this title it would be competent for the legislature to enact legislation regulating the rate or rates of interest which might be lawfully charged for the use of money, and also to provide penalties for the violation of its provisions. It would be likewise permissible to gather beneath this title any matter or provision which was reasonably germane to the fixing of interest rates or of their enforcement. People v. Mahaney, 13 Mich. 494. But it would not be competent for the legislature to go beyond this and include provisions in the act which were not germane and had no proper connection with the subject-matter recited in the title. Ryerson v. Utley, 16 Mich. 269. The act under consideration is composed of 20 sections, and is a full and complete regulation in detail of the business of pawnbrokers and loan agents. Some of the sections of the act are germane to the subject-matter found in its title, but others are not. Section 16 is illustrative of several sections of the act which have not even a “far-fetched” relation or connection with the title. Section 16 reads:
“Whenever complaint shall be made by any person on oath to any magistrate in any city authorized to issue warrants in criminal cases, that personal property belonging to such complainant has been without his consent taken or retained from his possession, and that he has good reason to believe and does believe that the same is pawned or pledged, and that the complainant believes the same to be in some pawnshop within such city, such magistrate, if he be satisfied that there is reasonable cause for such belief, shall issue a warrant to search for such property in the several pawnshops in said city, which warrant shall be directed to the sheriff of the county or any police officer of such city, demanding such officer to search the several pawnshops where the property for which he is required to search is believed to be concealed, which places and the property or thing to be searched for shall be designated and described in the warrant and to bring such property or other thing before the magistrate issuing the warrant. The court before whom any property so seized shall be brought shall cause the same to be delivered to the complainant on his issuing a bond as hereinafter provided, and if such bond be not executed within twenty-four hours, excluding Sundays, said court shall cause said property to be returned to the person from whose possession it was taken.”
This section might not be out of place under a title regulating the business of pawnbrokers, but it appears to be very much out of place under the title to this act. What proper connection is there between the legal machinery for discovering and recovering stolen property and the fixing of interest rates and the enforcement of the same? One reading this title would never suspect that he could find within the text provisions for recovering stolen property from pawnbrokers. And, were the average man requested to read the law and give it a title, he would call it a regulation of the business of pawnbrokers. As a slight proof of this assertion, the compiler and indexer of the Public Acts of 1911 indexed the act under the head of “Pawnbroking/’ and not under the head of “Interest.” It has been the policy of this court to give this constitutional provision a liberal construction, so as not to embarrass legislation, but we feel that even such a construction would not save this act from falling under the ban of the constitutional requirement. The objection raised is not one merely of form; it goes to the substance of the act. The act in its entirety is aimed at the regulation of the business of pawnbrokers and loan agents, and it repealed and supplanted two other acts which regulated the same business. Acts Nos. 334 and 337, Public Acts of 1907. Such regulation has been recognized as proper legislation in this State, but, before it can become effective legislation, some effort must be made in passing it to observe the constitutional procedure. For the failure of the legislature to do this, the act must be declared void. Having reached this conclusion, it will be unnecessary to consider the other reasons assigned.
The judgment of conviction is reversed and vacated, and the respondent discharged.
McAlvay, C. J., and Brooke, Stone, Ostrander, Moore, and Steere, JJ., concurred. Kuhn, J., did not sit. | [
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STONE, J.
This action is based upon a policy of fire insurance issued on December 3, 1910, by the defendant and appellant, to D. Littman & Co., assignors of the plaintiffs and appellees, covering an amount not exceeding $2,250 upon a stock of merchandise, and not exceeding $50 upon store furniture and fixtures, contained in a two-story frame building located in the village of Woodville, Sandusky county, Ohio, for the term of one year from the date of policy. The policy in suit was procured by D. Littman & Co., and issu'ed to said firm in the State of Ohio, and was countersigned by the agents of defendant at Woodville, aforesaid, a village of about 1,000 population about 18 miles from Toledo. The insured at the time was a co-partnership doing business in the State of Ohio, and the property at the time of the issuing and delivery of the policy, and at the time of the fire hereinafter referred to, was located in the State of Ohio. The insured partnership consisted of Harry Friedenberg, Ben Levine, a stepbrother, and David Littman, a brother-in-law. The policy in suit was one of six policies procured from different insurance companies through the same agency, at the same time, making a total of $12,000 on the stock and $200 on the furniture and fixtures; and, while written on December 3d, the policies were not delivered until December 10, 1910,- and the fire occurred and the insured property was totally destroyed on December 15, 1910, at 1:40 o'clock a. m. The insured claimed to have carried a stock of upwards of $15,000 in value. They attempted to procure $14,000 of insurance upon the stock, but the agents of the insurance companies declined to write for more than $12,000 thereon. The policies carried an 80 per cent, coinsurance and reduced rate average clause.
The partners Friedenberg and Levine had been engaged in business in Detroit. About 1907 Friedenberg engaged in an extract manufacturing business in Detroit, which he claims to have purchased from his cousin, Morris Harris, and which he ran for a few months when the same was burned. He collected the insurance on the stock and paid the amount to Harris on his indebtedness for purchase price. After the said fire, Friedenberg peddled pictures for some months, then bought a dry goods store on Dubois street, in Detroit, for which he paid, or agreed to pay $600 or $700. He ran this business for a few months, and then formed a partnership with Littman and moved to MeDougall avenue. This business continued until the insured partnership was formed in the fall of 1910. Littman resided in Chicago, and continued to reside there. Immediately before Levine became a member of the insured firm he had been employed at the Globe Dry Goods Store in Hamtramck. There was a fire there in which the stock was damaged. He claims to have purchased this stock. Immediately after the insured partnership was formed Friedenberg went to Woodville, Ohio, to look up a location for business. He rented a store, executing a writtén lease. Neither the owner of the store nor the notary who took the acknowledgment of the lease was informed that his name was Friedenberg. He signed the lease in the name of Littman. At the time of such signing Friedenberg inquired of the owner of the store whether he could get insurance on the stock, and he was taken to the insurance agents, who later wrote the insurance. The insured firm took the Detroit stocks, the value of which is in dispute, to Woodville, and some new stock was added. The store was then opened for business about November 15, 1910. Upon inquiry by one of the insurance agents before the issuance of the policies, as to who composed the firm of D. Littman & Co. there was evidence that Friedenberg expressly disclaimed having any interest in the firm himself, and Levine stated to the agent that Littman and Levine, those two, were all there were in the firm. Upon this subject the agent testified as follows:
“When the insurance was written, the one that came to see about the insurance disclaimed having any interest in the firm.
“Q. What is that?
“A. The one that came to see about the insurance in the first place, the morning that the insurance was written, I went to the store to get the name, and see how the firm wrote their name whether ‘D’Littman,’ or whether it was ‘De Littman,’ or whether the ‘D’ stood for the initial, and to make it plain I said—
“Q. Who did you speak to?
“A. Mr. Levine. I wanted to get the name to know how to write it up, and the one that came to see about the insurance first came, as Mr. Levine was busy at that time and I told him what I wanted, and he said, T have nothing to do with it; that other fellow does,’ and so then I said, ‘All right, you can tell him,’ and I went down to the other store, and when I came back they were standing talking, and Mr. Levine said he didn’t know what I wanted him to write that down for, and I said I did not understand how they wrote it, and I wanted it written down the way it was, whether it was ‘D’Littman.’ I asked him whether the ‘D’ stood for David Littman, and he lived in Chicago, and I said, ‘Who is the company?’ and he said he was.
“Q. How about the other gentleman, did he say he was a member of the firm?
“A. No, he did not say he was not a member, but he said that was all there was, those two all'there was in the firm.
. “Q. Did he say the other gentleman was not a member?
“A. He did not say he was not a member, but he said those two were all.
“Q. Which two?
“A. Littman and Levine.”
Further evidence tended to show that, prior to the issuance of the policies, Ben Levine, in response to inquiry of C. C. Layman, one of the agents, as to the exact names of the members of D. Littman & Co., gave to such agent one or more slips of paper in the handwriting of Ben Levine, one containing the name of “D. Littman” only, and the other “D. Littman & Co.,” and immediately underneath the name of “B. Levine.” Further, there was testimony that, on November 7, 1910, Ben Levine, on behalf of the copartnership of D. Littman & Co., made, signed, and rendered a financial statement to R. H. Lane & Co., of Toledo, Ohio, which contained the following statement:
“Firm of D. Littman & Co. is composed of the following persons: D. Littman, B. Levine.”
And on the same date, B. Levine, on behalf of D. Littman & Co., made, signed, and rendered a financial statement to the firm of Baumgartner & Co., of Toledo, Ohio, in which again the names of the members of the firm of D. Littman & Co. were given as D. Littman and B. Levine. On the same , date, in response to the inquiry of A. A. Hall, credit man for Baumgartner & Co., of Toledo, as to who composed the firm of D. Littman & Co., Ben Levine replied, orally, that the firm of D. Littman & Co. was composed of D. Littman and B. Levine. Much of this testimony was denied by the assured. On December 19, 1910, the policy in suit, and two others, were assigned by D. Littman & Co. to the plaintiffs, for the purpose of securing a pre-existing indebtedness of $526, due the plaintiffs from the assured, and to pay some other debts of D. Littman & Co., which were to be paid by the plaintiffs from the proceeds of said policies, the balance, if any, to be returned to D. Littman & Co. On January 14, 1911, original proofs of loss were made by the insured. Attached to the plea of the general issue, defendant gave notice, among other things, that said policy of insurance contained the following provisions:
“This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance, or the subject thereof; or if the interest of the insured in the property be not truly stated herein; or in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss.”
We copy further from the notice the following:
“That prior to the issuance of said policy of insurance, and with the purpose and intent of inducing the defendant to issue said policy of insurance, one Ben Levine falsely and fraudulently stated and represented to the agent of this defendant that the said D. Littman & Co. was a copartnership, and was composed of one D. Littman and said Ben Levine, and no others; whereas, in truth and fact, as said Ben Levine well knew when he made said false and fraudulent statement, said copartnership was not composed of said D. Littman and said Ben Levine and no others; but, on the contrary, said copartnership was composed of said D. Littman, said Ben Levine and one H. Friedenberg; that said false and fraudulent statement was made by said Ben Levine with the purpose and intent of thereby defrauding this defendant; that this defendant relied on said false and fraudulent representation, and in reliance thereon issued said policy of insurance; that but for said false and fraudulent representation and its reliance thereon, it would not have issued said policy of insurance.”
The trial court refused to submit to the jury the question raised by the evidence under the foregoing paragraph of the notice, as to whether false representations were made to the agent of this defendant company for the purpose of inducing this defendant to issue the policy in suit, but directed the jury to return a verdict for the plaintiffs, leaving to the jury only the question of damages. The trial court also refused to submit to the jury the following special questions requested by the defendant:
(1) Did the agents of the defendant insurance company know when the policy sued upon was issued that H. Friedenberg was a member of the firm of D. Littman & Co.?
(2) Did any member of the firm of D. Littman & Co. inform the agent of the defendant insurance company, before the policy sued upon was issued, that H. Friedenberg was one of the partners in that firm?
(3) Was it represented by any member of the firm of D. Littman & Co. to the agent of the defendant insurance company, at the time the policy sued upon was applied for, that the firm consisted of D. Littman and Ben Levine only?
The trial resulted in a verdict and judgment for the plaintiffs in the sum of $2,300 damages, and costs. There was a motion for a new trial upon the grounds of newly discovered evidence that the insured did not have the amount of goods or property which they represented they had, that the insured swore falsely in the proofs of loss as to the value of the goods destroyed, and as to the origin of the fire, and that Harry Friedenberg, one of the members of the insured firm, had admitted, both orally and in writing, that he wilfully set the fire which caused the loss in question.
The case is here upon writ of error, and by the assignments of error it is the contention of appellant, among other things, that the court erred in directing the jury to return a verdict for the plaintiffs, in denying the motion for a new trial made upon the ground of newly discovered evidence, in refusing to submit to the jury the question of false representations and concealment as to Friedenberg’s membership in the insured firm, and in refusing to submit to the jury the special questions above set forth.
Other questions were raised, both in the pleadings and the evidence, which we do not deem it necessary to specially allude to, which were presented by a mo tion for a directed verdict for the defendant made at the conclusion of the proofs. We are not prepared to say that, upon those questions, the court should have directed a verdict in favor of the defendant, and no error is assigned upon the refusal of the court to submit them to the jury.
It is the claim of the appellant that the contract of insurance is one requiring the utmost good faith, inasmuch as knowledge of the facts of ownership and value of the property is knowledge possessed exclusively by the insured, and the insurer must, of necessity, rely upon the truth of the representations made by the insured upon these matters. Therefore it is fundamental that the making of a material false representation by the insured for the purpose of inducing the issuance of the policy renders the policy void, and constitutes a complete bar to any recovery thereon.
It is further claimed that it is important to note the fact that Friedenberg was the only member of the firm who was known to have had previous connection with a fire loss, to wit, in the extract factory.
It is also urged that a representation as to the members who composed an insured copartnership owning the property is a representation of a material fact, and the following cases are cited: Abbott v. Insurance Co., 85 Mass. (3 Allen) 213; Pelican Ins. Co. v. Smith, 92 Ala. 428 (9 South. 327), affirmed in 107 Ala. 313 (18 South. 105).
In the last-cited case the court said:
“An insurance company has the right to know the real owner of the property insured and the extent of his insurable interest, and a contract of insurance is one in which the utmost good faith is required of the insured. A representation has been defined to be a statement incidental to the contract relative to some fact having reference thereto, and upon the faith of which the contract is entered into. 4 Wait, Act. & Def., page 39; May on Ins., § 181.”
“Where the policy, by express stipulation, requires a full statement as to the ownership of the property, it becomes material, and one who accepts such a policy, issued upon such statements, becomes bound thereby. Brown v. Insurance Co., 86 Ala. 189 (5 South. 500); Western Assurance Co. v. Stoddard, 88 Ala. 606 (7 South. 379).”
See, also, Capital City Ins. Co. v. Autrey, 105 Ala. 269 (17 South. 326, 53 Am. Rep. 121).
We have no doubt that the insurer has the right to know who composes the partnership owning the property which is to be insured. The moral hazard involved in the contract is one of the essential elements of the risk, and the materiality to the insurer of the personnel of the insured copartnership, especially when inquiry is made with reference to such membership, becomes apparent. A leading case upon this subject is Graham v. Insurance Co., 87 N. Y. 69 (41 Am. Rep. 349). We quote from the syllabus of that case:
“Where a policy of fire insurance contained a clause declaring it to be void, 'in case of any misrepresentation whatever, either in the written application or otherwise,’ a misrepresentation will avoid the policy, and this, without regard to the question as to its materiality to the risk.”
Defendant in that case issued to the plaintiff two policies of insurance. At the time of the application for the first policy, plaintiff’s agent, who made the application, stated in answer to an inquiry as to ownership that “Mrs. Catherine E. Jack, widow of Capt. Jack,” was the owner, and was going to keep a first-class hotel on the premises, and the policy was made out insuring Catherine E. Jack, loss, if any, payable to plaintiff, as mortgagee. When application was made for the second policy, the agent stated there was a mistake in giving the name, that it should be Margaret instead of Catherine in the first policy, which was altered accordingly, but he repeated the statement that the owner was the widow of Capt. Jack. The title to the property was in Margaret E. Jack, an infant three years of age, who had no general guardian. The policies contained the condition above stated. Held, that the misrepresentation was material, and -that it was not error for the court to refuse to submit that question to the jury. In its opinion the court said:
“Even if it be assumed that the materiality of the misrepresentation actually made is important, we think it is sufficiently established that the statement made as to the ownership of the property was material, and that the representation, if untrue, was such a violation of the terms of the' policy as rendered it void. A distinct inquiry was made at the time as to the ownership of the property, of the plaintiff’s agent, and a direct and positive answer given. * * * The representations were also believed by the defendant’s agent, and upon the faith of them the policies were issued. The inquiry made evinces that it was material, and it is evident that it was important to the underwriter to know the person who owned the property, and who was to keep the hotel and conduct the business; whether it was one well known or otherwise — an adult who would be likely to exercise proper care over the same, or an infant who would be unable to do so, and who, as the evidence shows in this case, had no general guardian to protect her rights. The insurer has a right to know to what extent the insured has the ability to protect, or an interest in protecting, against the perils insured against. Savage v. Insurance Co., 52 N. Y. 502, 504 [11 Am. Rep. 741]. And in a case like this, when a specific inquiry is made, the question of the materiality of the statement in respect to the risk is settled by the parties as a matter of contract. A broad distinction exists whether the statement is made in answer to inquiries or otherwise. In the one case the answers are made material by the act of the assured, whether they are in fact or not; while in the other case, even though the statements are made a part of the policy, they are not efficacious as warranties, although material in fact. (Wood on Fire Ins. 422, §214.) This is especially the case when the inquiry calls upon the party to communicate the nature of his interest in the property, and he is bound to answer accurately and at his peril” (citing cases).
Many more cases might be cited to the same effect. 19 Cyc. p. 679:'
“The insured may, by failing to disclose facts material to the risk to be assumed under the policy, and which he has reason to believe are not within the knowledge of the company, be guilty of such fraud as to defeat the contract.”
If the insured undertakes to state fully all of the circumstances which affect the risk, he is bound to tell the whole truth, and concealment will render the policy void. 19 Cyc. p. 681, and cases cited.
The contract of fire insurance is in its nature personal, being presumed to rest to some extent on the trust and confidence of the insurer in the insured that the property will not be destroyed by the insured for the purpose of realizing on the contract. Hence the importance of answering truthfully all questions relating to ownership.
Counsel for plaintiffs and appellees, not specially controverting the position that such claimed representations and concealments would be material, say:
“Assuming, which is contrary to the fact, that the Laymans [insurer’s agents] did not know that Friedenberg was a member of the firm, and that fact was concealed from them, there is absolutely nothing in the record to justify even a suspicion that the policy would not have been issued had Mr. Friedenberg’s name been mentioned. However, a complete answer to all of counsel’s argument is that if there had been any misrepresentations which would have justified the voiding of the policy, the insurance company was bound to notify the insured and Jacobs & Friedman immediately upon the discovery of this alleged false representation that they considered the policy void. The defendant had no right to put the insured and their assignees to the enormous expense to which they were put prior to the filing of the plea in this case, and which for the first time pleaded this alleged defense. The proofs of loss filed January 15, 1911, with each of the companies distinctly stated that the firm of Da Littman & Co. consisted of David Littman, Ben Levine and Harry Friedenberg. The connection of Mr. Friedenberg with D. Littman & Co. was known to the insurance companies the moment they received these proofs of loss. At that time their agents, Mr. and Mrs. Layman, knew whether, or not there had been any false representations made to them before the policies were issued. * * * When the first suit was brought, although the defendant put in a large number of defenses, it made no claim that the policy had been obtained by misrepresentation or fraud. It was not until more than a year after the fire had occurred, and after the insured and Jacobs & Friedman had been put to an enormous expense in the way of traveling back and forth from Chicago and Detroit to Woodville, employing attorneys, and the expense of two suits on each policy, that the defendant made this defense, and did not even tender back the premiums. New York Life Ins. Co. v. Baker, 83 Fed. 647, 27 C. C. A. 658. It is an elementary proposition that, where an insurance company, with full knowledge of the facts afterwards relied upon in support of its claim that a policy was void ab initio, bases its refusal to pay the loss upon other grounds accruing subsequent to the fire, after which the insured is subjected to loss of time in trying to adjust the,loss and incurs the expense of bringing suit for its recovery, the company is estopped from asserting such claim, of forfeiture as’ a defense in said suit” (citing Marthinson v. Insurance Co., 64 Mich. 372 (31 N. W. 291), and many other cases).
It should be here stated that suit had first been begun upon this policy on June 27, 1911, and the plea and notice thereunder, in that suit, did not raise the question of false representation and concealment which we have above set forth, but notice was given of certain other alleged defenses. That suit was discontinued December 9, 1911, and this one begun De cember 13, 1911. We think a number of answers may be given to the objection urged by appellees as to the availability of the defense we are here considering.
It is undoubtedly true that the general local agent —that is, one who has power to solicit insurance, to receive applications, to fix premiums, to accept risks, and to issue, countersign, and renew policies in a particular locality — is such an agent that his knowledge will be imputed to the insurer. The record in this case is not very clear as to the extent of the power of the agents of the companies at Woodville. It does appear, as above noted, that while the policies were dated on the 3d day of December, they were not delivered until the 10th day of December, and that in the meantime reports had been made to the several companies. There is no evidence that the agents reported, or were required to report, to the companies the individual names of the insured partnership. While the proofs of loss did show that the firm, at that time, was composed of David Littman, Ben Levine, and Harry Friedenberg, it did not necessarily follow that Friedenberg was a member of the firm at the time the policy in question was issued. He might have been introduced into the firm at a later date for aught that appears in this record. There is no evidence that either the defendant, or its agents, at the time of entering the plea in the first suit, had full knowledge of the facts of which notice is given in the instant case, and we do not think that this can be presumed. There is nothing to show that either the defendant, or its agents, had any knowledge, at the time the first plea was interposed, as to the similar representations which it is claimed were made to the merchants in the city of Toledo. As showing the quo animo and nature of the representations made to the agent, it was competent to show other similar representations made at or about the same time to other persons. Beebe v. Knapp, 28 Mich. 53.
The language of Chief Justice Campbell in Security Ins. Co. v. Fay, 22 Mich. 467-473 (7 Am. Rep. 670), is pertinent here:
“The waiver that is spoken of in these cases is another term for an estoppel. It can never arise by implication alone, except from some conduct which induces action in reliance upon it, to an extent that renders it a fraud to recede from what the party has been induced to expect.”
We think the rule is well stated in Smith v. Insurance Co., 107 Mich. 270 (65 N. W. 236, 30 L. R. A. 368), where this court held that where an insurance company, with knowledge of all the circumstances attending a loss, undertakes to notify the insured of its specific reasons for denying the liability, it cannot, when sued upon the policy, set up any additional grounds for defense.
In the light of this record, we cannot say that the defendant is estopped from interposing the defense claimed in the instant case. There being a sharp conflict in the evidence as to whether the representations were made and the concealment practiced, as claimed by the defendant in its notice and evidence, we think it was the clear duty of the trial court to submit that question to- the jury, together with the special interrogatories above set forth, and that it was prejudicial error to refuse so to do. Clearly, as to whether these representations were made or not was one of fact. The effect of the representations may have been a question of law. Upon that subject there is a diversity of opinion; some respectable courts holding that even the question bf the materiality of the representations is one of fact to be submitted to the jury. There is authority to the effect that whether a material fact was intentionally or fraudulently concealed is a question for the jury. Johnson v. Insurance Co., 93 Wis. 223 (67 N. W. 416).
It is very clear that the question whether the rep resentations were made or not is one of fact. This view of the case renders it unnecessary for us to pass upon the question of the refusal of the court to grant a new trial upon the grounds stated in the motion therefor. As a new trial must be had, the questions involved in that motion may never arise, and it is unnecessary for us to discuss them.
For the error pointed out, the judgment of the court below is reversed, and a new trial granted.
McAlvay, C. J., and Brooke, Ostrander, Moore, and Steere, JJ., concurred. Bird and Kuhn, JJ., concurred in the result. | [
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] |
Martin Ch. J.:
So far as the complainants ask for an injunction upon the ground that the vacation of a portion of Campus Martius, and the erection of a City Hall thereon, creates a nuisance, the answer having denied all the equity of the bill, and set out a state of facts wholly inconsistent with such relief, and no proofs having been exhibited, the bill was properly dismissed. But the case does not appear to have been brought into this court upon that ground solely, but also for supposed defects and irregularities in the proceedings in the Recorder’s Court; and to these the evidence is exclusively directed.
The power of vacating public grounds is lodged with the Common Council, acting through judicial proceedings in the Recorder’s Court; and these proceedings all appear to have been regularly taken. But it is claimed that the resolution of the Common Council upon which the subsequent proceedings in the Recorder’s Court were founded, was not -in compliance with the charter, and hence con ferred no jurisdiction upon that court. The charter, Chap. VII, §1, provides that the Common Council shall have power to lay out, alter, vacate, &c., streets, public grounds, <fec., in said city, whenever they shall deem it a necessary public improvement, &c.; and §2 provides that, whenever they shall deem any such improvement necessary, they shall so declare by resolution, and describe the contemplated improvement, &c. It is charged and admitted that it is the purpose of the city, as soon as the premises in question are vacated, to erect upon it and an adjoining lot now owned by the city, a City Hall; and it is claimed that this is the improvement that should have been described in the resolution. We think not. The vacating of the square is, by the first section, denominated an improvement; and this construction of the word determines its signification in the second section. “Such improvement” in the second, refers to “it” in the first section. The Common Council are to determine whether an act respecting the public property is necessary — as to open streets or alleys, or vacate them, or any'public grounds — and this act is denominated an improvement; and the fact that a further design exists respecting the property, makes it none the less an improvement, nor does it require that the further design, which may or may not be an improvement in the common signification of the term, should also be described. Now it is contended that the jury inq^annelled in the Recorder’s Court are to determine the necessity of the improvement; and it will be conceded to be the grossest absurdity so to construe the law, that such jury may prevent the erection of a City Hall by holding, against the action of the whole city, that a hall is unnecessary. This shows to what absurd consequences the complainants’ doctrine, that such is really a part of the jury’s duty, leads. There is no provision in the charter imposing this duty upon the jury, except in' eases where private property is taken: in all other ‘eases it is expressly confided to. the Common Council. The language of §14 of Chap. VII is not applicable to cases of this character, nor did the Legislature ever intend it to be so, or to confer upon a jury the power, in a case like that before ns, of revision of the acts and decisions of the Common Council. When private property is taken for public use, the Constitution requires that a jury should determine the necessity for its condemnation ; and a careful consideration of § 14 will show, that it can only have reference to that contingency. But even if the amount of benefit which an adjoining owner may be supposed to have in the public square, beyond that to which every individual of the public is entitled, can be considered private property, still, in this ease, no such peculiar benefit having been shown, and all injury by the vacation 'of this portion of the square being denied, and no proofs taken to Show any injury, and the jury having negatived any damages, this case must be treated as one in which the taking of private property is not involved.
The decree of the court below is affirmed.
Christiancy J. concurred.
Manning J. dissented.
Campbell J. did not sit in the case. | [
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Cheistiancy J.:
As to the first error assigned, we do not think the absence of the justice for a few minutes more than the hour after the time to which the cause had been adjourned, for the cause stated in the return, could be allowed to operate as a discontinuance, though the defendant might have remained at the office till the expiration of the hour, and then left. But in such case, if the defendant had gone away ignorant of the cause of the justice’s absence, the justice should have notified him of his return at the earliest opportunity, and should have required proof that he had received the notice before taking any other step in the cause: and if the defendant had, in good faith, dismissed his witnesses, he would on showing cause be entitled to the necessary time to procure their attendance.
The justice was absent in the discharge of an official duty which was quite as imperative as' the trial of tho suit. Both duties could not be perforare I at the same instant. The view we have taken is the only one which would enable him to perform both. See Hunt v. Wickwire, 10 Wend. 102.
But whether the return of the justice contains any proper evidence that defendant was notified of the cause of the justice’s absence, or of the fact of his return to the office, may well be doubted; but we do not propose to rest the case upon this ground, because the objection covered by the second assignment of error is, we think, fatal to the justice’s jurisdiction.
The adjournment from the twentieth to the twenty-sixth day of January, was granted in the absence and without the consent of the defendant, and without the showing of any cause whatever. It was an adjournment unauthorized by the statute, and without necessity. It is claimed to have been beneficial to the defendant. But if the defendant had been properly notified that the justice had returned, and was ready to proceed, he had a right to decline any defense, and allow tho plaintiff to proceed ex parte, without being subjected to the costs of another adjournment, and the re-attendance of tlieplaintiff’s witnesses. It can not therefore be said to be for tho defendant’s benefit. Though the justice might have held the cause open for a reasonable time, and continued the cause from day to day in the progress of the trial, as the necessities of the case might require, he had no right, without any such necessity, and without entering upon the trial, to adjourn it over for several days, as in this ease, unless at the instance of a party, and upon cause shown as required by the statute.
The right expressly given to the justice (by § 90) to adjourn of his own motion on the return day, cuts off all implication of an intent to give him the like power in any other stage of the case.
But it is urged by defendant in error, that by § 86 {Comp. L. §3738) before the amendment of 1861, a party applying for an adjournment was not bound to show any cause, unless a former adjournment had been had on his own motion. But this provision applies only to the showing of diligence, and leaves in full force the previous portion of the • section requiring cause to be shown.
In the State of New York, from whose statutes these provisions in reference to adjournments, and most of the •other provisions of our justices’ act, have been almost literally copied, it has been long and well settled, that an adjournment, unless by consent, without some cause recognized by the statute, or without showing cause when the statute has given it only on cause shown, or without showing diligence wrhen that is required, or upon the justice’s own motion except on the return day, operates as a discontinuance of the suit: — Gamage v. Law, 2 Johns, 192; Proudfit v. Henman, 8 Johns. 391; Hilmore v. Sudam, 7 Johns. 529; and see Kimball v. Mack, 10 Wend. 497; Horton v. Auchmoody, 7 Wend. 201, and 2 Cow. Treat. 856.
In adopting these provisions from the statutes of New York, it is fair to presume that the Legislature ’ were aware of the judicial construction they had received, and that the legislative intent was in accordance with these decisions.
The judgment of the Circuit Court must be reversed, with costs.
The other Justices concurred. | [
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Campbell J.:
This is a cause wherein an appeal was taken from-the Probate Court of Jackson county to the Circuit Court, from the probate of a will. Exceptions were taken to the rulings on the trial in the circuit, and are brought up on writ of error. A motion is now made to dismiss, on the ground that the proceedings are not according to the course of the common law.-
It was decided in Parker v. Copland, 4 Mich. 528, that although proceedings in their commencement in the inferior-court were not in common law form, yet if, on appeal to the Circuit, the trial assumed substantially that nature, a writ of error would lie. Where facts going directly to the merits are to be determined on probate appeals, the statute contemplates that issue may be joined thereon, under the direction of the court, and a trial had by jury: Comp. L. § 3635. This does not in any way prevent a trial by the court without a jury of the same issue.
Upon an appeal from the decree of a Probate Court allowing or disallowing a will, the substance of the controversy must be the same as on the issue of devisavit Del non; and presents of necessity an issue peculiarly proper for trial in the ordinary way. While a new issue may be very properly made in the Circuit Court in a common law form, yet it can not differ materially from that, necessarily made on the application for probate; which, with us, is usually somewhat informal, but which if made-With full allegations, would present all the issues in form, which are now comprehended in substance, in every such application. No one can be misled concerning the questions to be tried on such a dispute. The form of such an issue can not be very important where the substance is fairly presented. It appears in the case before us that, although no new issue was framed in the Circuit Court, a trial was had there upon facts admitted, which are the same as facts. proved; and that a decision was made of the whole controversy. The case was treated as if at issue on the merits; and there was in fact such an issue, of necessity, comprehended in such an appeal; and its nature and extent can be clearly seen from the record.
Substantial- issues of this kind, when tried in the Circuit Court, upon pleadings framed in the usual way, are governed by all the analogies attending common law trials of other civil actions; and it would not only be extremely inconvenient, but might also be destructive of established rights, to apply to them a different rule of appellate proceeding. The practice of exceptions and writ of error has long been applied to them without objection, and in the case of Parker v. Copland was settled, as far as it can be, by a close analogy of principle. No practice would operate fairly which should place the disposal of this class of issues of fact beyond the rules applicable to other civil controversies in common law form, in this court, when the proceedings at the circuit have been such as this case received and required.
While we adhere to our repeated decisions, that matters interlocutory, or discretionary, or collateral to the main issue, and other cases not involving the substance of a controversy like the present, are not reviewable on writ of error, we think the case before us is properly brought into this court. The motion to dismiss is denied.
Cheistianct and Manning JJ. concurred.
Martin Ch. J. was absent. | [
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Campbell J.:
This case presents but a single point, concerning the sufficiency of a notice of dishonor of an inland bill, under the general rules of law applicable to such paper, which is governed by the general law merchant in the absence of proof that the laws of Ohio have varied it.
The notice before us is dated on the day of the maturity of the paper, and states it was on that day, by the Notary who signed it, protested for non-payment after due demand and refusal of payment, and that the holders look to the defendant for payment. The bill is fully described, and the only question is whether, by this language, the defendant was legally informed of its dishonor, so that when the facts of presentment at maturity and non-payment are also shown, he can be regarded as having notice of those facts as existing or claimed to exist, and so be held responsible. The object of this notice has always been held to be, merely to bring home to the party sought to be charged, information that the paper has been presented at maturity and dishonored, and that he is looked to for payment. And accordingly no technical phrases are necessary, but it is only required that the terms used be such as fairly and naturally to lead the mind of a person of ordinary intelligence to this idea. The notices may be given as well by private holders as by commercial officers, and the use of terms is not to be subjected to technical criticism, but they must be interpreted by common sense and common usage, unless some special reason exists to the contrary in a given case. No court is at liberty to strain the meaning of terms so as to render them senseless and nugatory, when a sensible meaning is reasonably apparent.
When an indorser, knowing, as he is bound to know, the nature of his liability, receives within the proper time, and in a proper manner, a notice claiming a liability against him on a bill properly described, there is certainly no very good reason why he should be allowed to shut his eyes to any further facts plainly appearing, or to assume that although fairly understood, the words used convey a clear assertion of the facts completing his liability, the notice was nevertheless not designed for any known legal purpose whatever, and was meant as an idle ceremony. This would not be in accordance with the fairness which should characterize all commercial rules, as well as all other rules of human conduct. And no court has laid down any general rules which would countenance the rejection of any' notice which fairly and naturally admits of but one construction, and informs the party charged of the necessary facts, whether directly or inferentially. But there have been some cases in which the application of these rules has been unreasonably narrowed.
It is claimed that the case of Platt v. Drake, 1 Doug. Mich. 296 (subsequently recognized as res adjudicata in Newberry v. Trowbridge, 4 Mich. 391), has determined that the term protest is absolutely without meaning, when used in connection with inland bills, and therefore that a notice of protest is also unintelligible, and conveys no idea to the recipient, which he can be supposed' to comprehend.' The ruling in that case undoubtedly was based entirely upon that technical use of terms; but the court,! through misapprehension, was led to overlook a practice which was sanctioned, not only by usage, but by the express statutes of the State, as well as of the Territory. The laws recognizing the common usage of making protest as well of notes fand inland bills as of foreign bills (which usage is certainly nearly or quite as old as the negotiability of promissory notes), regulated the fees of notaries for making these protests as well as for giving notices: — R. L. 1820, p. 365: R. L. 1827, p. 198; R. L. 1833, p. 255; R. S. 1838, p. 568: courts reading these statutes, could not assume that they were nugatory, because protests were unnecessesary. They would be obliged to give them their usual and ordinary meaning, and recognize them as the expression of an idea perfectly familiar in every commercial community. In the absence of any statute it is always presumable that words in common use may be safely resorted to in business documents. And it is very manifest that in deciding Platt v. Drake, the attention of the court was not called to the fact that these statutes existed, which were certainly as binding as any other laws, upon all the courts of the State, and would of course have been followed. The statutes have since gone further, and now in some cases make notarial certificates, concerning all kinds of negotiable paper, more available in evidence than notarial acts relating- to foreign bills were by the commercial law. R. S. 1846, p. 79, (C. L. p. 215). But in construing these statutes also, we are necessarily compelled to recur to common usage for the meaning of the terms, as in the other cases. And the overwhelming mass of authorities sustaining notices of protest as sufficient, is based entirely upon this recognizedusage. The protest of a note includes, by natural inference, the timely demand and refusal which alone could justify it; and a notice of protest therefore is an inferential statement 'of these. In the case before us, the demand and refusal are directly mentioned. Such a notice is too plain to mislead any one, and was therefore sufficient. The court below erred in holding it invalid, and the judgment must be reversed, and a new trial granted.
The other Justices concurred. | [
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Manning J.:
The only question in this case Arises on the cross-bill, and is whether Abby S. Perce, who was the holder and owner of two promissory notes at and previous to her Intermarriage with Heman M. Perce, after such marriage-gave them to her husband. He acquired no interest in the notes by the marriage; they remained the property of' his wife the same after the marriage as before, except that' she could not sell or dispose of them without the consent of her husband, as the law then was: — Comp. L. §3289, This restriction on her right of disposition was soon after-wards removed: —Comp. L. § 3292. Her husband therefore had no interest in the notes unless they were given to him by his wife. The evidence relied on to show a gift I do not think sufficient. Austin’s receipt of the 9th January, 1855, shows a transfer of the notes to him by Perce and wife as collateral security for the payment of a mortgage and notes Austin held against Perce. By the terms of the receipt, the proceeds of the notes, if they were paid to Austin, were to be applied by him on Perce’s notea and mortgage, and if Perce’s notes and mortgage were' otherwise paid, the notes were to be returned by Austin, In this, I see nothing more than a pledge by the wife and her husband (for it was necessary as the law then stood that the husband should join with his wife in making the pledge) of the wife’s property as security for the payment of the husband’s debt.
A pledge for the purposes stated, and not a gift, is all the receipt and circumstances attending the transaction show. The receipt is to both; but why was her name-included in it if she had given the notes to her husband? She with her husband called on Austin, and on the-arrangement being agreed upon between them and Austin, she indorsed the notes and handed them over to Austin. It does not appear her husband so much as ever had the notes in his possession; and the transaction, it should be recollected, took place within ten days after they were married.
The parol testimony in support of a gift all has reference to this transaction, and not to any other. And besides being extremely vague and uncertain, and sometimes contradictory to itself, should not be received even if it was of a ■more satisfactory character than it is, to contradict the written evidence of its true character, to be found in the receipt of Austin, understood and construed by the circumstances attending its execution.
The most that can be said of the parol evidence is, 'that it shows an intention of the wife to use the money due her on the notes to pay off the mortgage, if necessary to secure the ;mortgaged premises as a homestead. An intention that was not consummated at the time of her death. And had it been carried into effect, it could not so properly be called a gift as an appropriation of the money for an object in which she would have had an interest beyond the control of her husband without her voluntary consent.
I think the decree should be modified so as to conform to the above views.
Christiancy J. concurred.
Campbell J.:
The contest in this case is entirely between Hernán M. •Perce and the Administrator of his late wife Abby S. Perce, so far as the principal merits are concerned, and is to determine whether the Administrator has a right to the notes received by Julius A. Austin from her. As the other parties are satisfied with the decree as it stands} and have not appealed from it, any claim which they might have asserted against it is immaterial. Whether, however, they can bé deprived of any right now reserved to them under the decree, is a question which does arise, and which may in some aspects of the case become material.
The circumstances under which Mrs. Perce transferred the Norris notes to Austin, as appears from the case, are substantially as follows: Hernán M. Perce, her husband, owned a homestead, which was mortgaged to Austin; and' after her marriage they desired to build a new house on the farm. Mrs. Perce having the Norris notes, and being desirous of getting the property clear, transferred them to Austin,, who agreed to receive them as collateral security. Whether they passed through her husband’s hands is in my view entirely immaterial. If paid, the proceeds, which would nearly cancel the mortgage, were to be applied on it. If' the mortgage should be paid otherwise, the notes were to be returned; and here again, in my judgment, it can make no difference whether they were to be returned to Mrs. Perce, or to her husband. The receipt given by Austin shows what his rights were, but does not show anything concerning the arrangements of Mrs. Perce, or her designs, or reasons. Those I' think sufficiently appear from the other evidence. But the design apparent from the receipt is entirely consistent with the other evidence in regard to what is a main feature of the case. It is very clear that she never desired or designed that the land should be sold in preference to having her notes collected and, applied. Both the receipt and the testimony show plainly that the payment from other sources than the notes, upon which the notes were to be returned, meant payment by other means than foreclosure. The evidence of her desire-to save the land at all events is entirely convincing and undisputed. No other object could exjdain the transfer, even if there were no proofs on the subject. But the proof is abundant.
The case is not changed by her death from what it would have been had she in person, instead of her administrator, been a party. And did the receipt stand alone, a. claim on her part to compel Austin to look to the land before using the notes she had herself given as collateral, would not I think be at all consistent with any purpose for which such collaterals are ever given. A dispute arose in Davis v. Rider, 5 Mich. 423, whether a. person holding collaterals must not first resort to them. We held that he need not do so. But it would be difficult to find authorities negativing, his right to do so, if he pleased. And the evidence shows that the sale of the land would have been the last thing desired by her, inasmuch as it would deprive her and her husband of their homestead, and of all improvements made . on it, a portion of which at least we may gather from the witnesses were to be paid for by her assistance as well as by means saved by her economy.
I am unable to draw any other conclusion from the case than that she meant, so far as she was able, to have the lands cleared from encumbrance by her means, and that she meant to appropriate these notes to be, as between notes and land, a primary and not a secondary fund. She could not compel Austin to resort to them first; but it is clear that such was her desire. And I do not see how she could have done more to complete the appropriation.
Courts have never been so particular in requiring exact proof in cases of gifts or appropriations of the separate property of married women in favor of their husbands as in other cases, for the obvious reason that testimony concerning their mutual acts is not legally attainable. In all cases where an intention is manifested to give him the benefit of it, and it requires no further formal transfer, the gift or appropriation has been sustained unless impeached for deceit, oppression, or some manifest unfairness. The law has never required her to restrain her generosity from her husband when it is left unrestrained as to the rest of the world; neither does it assume that he has cheated or over-persuaded her into it. And if this transaction, when made, would have been entirely for his benefit, I see no reason for questioning its validity or conclusiveness. And on the other hand, if it was originally not entirely for his benefit, the fact that by his survivorship it may have become so can not deprive it of its original character and sufficiency.
"When we consider the circumstances under which Mrs. Perce became induced (or rather determined of her own will, for it appears that her husband did not request her), to appropriate the notes to pay the mortgage, so far as they would go, we shall find that she was providing directly for her own individual benefit, and not merely saving her husband’s property. Under our Constitution, the wife has an absolute and vested interest in the homestead, which her husband has no power to discharge or affect. The exemption is not under his control, and he can not waive or destroy it. It is intended for her benefit as much as his. (See Beecher v. Baldy, 7 Mich. 488). As the mortgage held by Austin was made before her marriage, it of course was valid as against her interest in the homestead, and she therefore had a direct interest in having it cleared off, and thus securing herself a home against all contingencies. The testimony of Fralick, Crosby and the Sellecks, shows how anxious she was to get the place clear of incumbrance, in order for building a new house, and she was evidently anxious to secure a comfortable home. That she did not live to enjoy it does not change the force of her design when the arrangement was made.
I think such an application as that' of her administrator, whatever might have been the facts, is without precedent, and unsustainable upon any principle. But I prefer to put my conclusions upon the. merits, and therefore I shall not go into any discussion of that question. I think the decree contains no error of which the appellant can complain, and should be affirmed.
Martin Ci-i.-J. concurred in the result of this opinion.
The Court being thus equally divided, the decree of the Court below was affirmed. | [
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Martin Ch. J.:
While in the absence, of any statutory provision to that effect, a corporator may, at the common law, have a mandamus to compel the cusios of corporate records and documents to allow him an inspection of them, yet to entitle himself to the aid of the court, he must show that he has made a proper demand upon the custos, at a proper time and place, and for a proper reason, and has been refused. I have examined all the cases to which we have been referred, and can find none where the writ was granted to enable a corporator to gratify idle curiosity. The principle seems to be, and very properly too, that the party asking the writ must have some interest at stake which renders the inspection necessary.
No such case is made by this relator; nor has he any remedy under the statute (Comp. L. §1915) which provides that plank road companies shall keep a stock book, which shall be open at the office of the corporation during business hours, for the inspection of all persons — for he makes no case under it. He asks for an inspection of all the books, records and papers of the company; which is a demand not within the statute; and he shows no demand made at the office of the company in business hours for inspection of its books, nor does he give any excuse or reason why such demand was not or could not be made Had he the statutory right to make the broad demand which was made in this case, he has not made it under circumstances which entitle him to the remedy asked.
The writ is refused.
Manning and Campbell JJ. concurred. | [
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Reid, J.
Plaintiff brought this action to recover damages for personal injuries received by her by reason of slipping on a damp spot on the floor of defendant’s store, and falling, so that her back was injured. A verdict for $12,000 was rendered for plaintiff by a jury. Prom judgment had thereon, defendant appeals.
Defendant operates a serve-self grocery, vegetable and meat store in Escanaba, Michigan. On Thursday, August 25, 1949, a 3-ounce glass jar of olives fell or was knocked off a shelf in defendant’s store onto the floor of an aisle leading from the front entrance of the store back to the meat counter. The glass jar broke and the contents, half olives and half juice, spilled onto the floor at a place about 20 to 25 feet from the front entrance. The floor was a mottled dark green asphalt tile. Ronald Moras, a 22-year-old employee of defendant, went immediately to the scene and swept the olives and broken glass into a cardboard box, took the debris to a back room and immediately returned with a mop and mopped up the rest of the fluid, leaving a damp spot about 3 or 4 feet in area. There were no pools of water or fluid and the damp spot was visible. Moras then went again to the back room, picked up a dry mop and “went right back” to dry up the damp spot. The plaintiff testified that as she walked from the front of the store, the aisle was clear and she saw nothing in the aisle and there were no people in the aisle. Witness Moras testified that in general his instructions were to put up a barricade or box to warn people, i.e., of a dangerous condition of the floor.
Mr. John Ryan, the manager of the defendant’s store, was within 30 or 40 feet of the place of the accident, heard the crash of the jar of olives when it struck the floor, walked over there, saw the damage that was done, watched Moras clean up the olives, glass, et cetera, and took the label that was on the broken jar of olives. The store is 100 feet long and 70 feet wide,- the mops are located in the north part of the store, north 50 feet and east 25 or 30 feet from the place of the accident. Mr. Ryan stayed at the spot in question while Moras cleaned up the glass and after removing the label from the broken glass, went about his business.
Before Moras returned with the dry mop, plaintiff came to the damp spot, slipped, both her feet went out from under her, and she fell on her back.
Ryan testified that he examined the spot after ■plaintiff had left the spot. The spot was damp, not •slippery.
There is no showing that plaintiff was guilty of contributory negligence.
Defendant argues with considerable force that the •defendant moved with fair and reasonable diligence to remedy the condition caused by the fall and breaking of the glass jar of olives. Defendant is not shown to have been at fault as to the breaking of the glass container and is not an insurer of the safe ty of patrons; It would take an ordinarily prudent and careful person some little time to remedy the condition.
Defendant’s employee, Moras, testified, “I knew it was slippery,” referring to the spot in question and referring apparently to the time when he first returned after carrying out the olives. Negligence of defendant could only be found on the proposition that Moras, who was left by the manager Ryan in charge of the cleanup operations, knew that the spot had not been sufficiently cleaned up when he left to get the second mop, but left the spot unguarded either by a person in charge, or by barricade, while he went after the second móp. The round trip for the second mop required Moras to travel 75 feet each way, a total of 150-feet. Plaintiff was not in sight when Moras left to obtain the second mop; she had fallen before he returned. There was some foundation for the jury’s verdict that defendant was guilty of negligence, even though it is easier to come to that conclusion after the accident occurred, than it would have been before plaintiff fell, viewing the situation as things would occur to the mind of an ordinarily prudent person. The jury could well have found that even with the damp spot remaining after the first mopping, the aisle was reasonably safe for the public to use.
Plaintiff testified that when she fell she did not try to arise, that a store clerk came to assist her; that someone brought a box on which she sat 5 or 7 minutes; that Mr. Ryan came and said he would get a doctor and wanted her to go to a hospital, but she refused and said she wanted to go home first; that several men assisted her to an automobile, which took her to her home at the residence of Father Thompson where she was staying permanently as assisting housekeeper; after her- arrival at Father Thompson’s residence, Mrs. Clara Potvin, the housekeeper, tried to get plaintiff to lie on a couch, but she couldn’t lie down; an overstuffed chair was brought; Mr. Rodman brought boards and took the mattress from the bed and put the boards on the springs and plaintiff tried to lie like that, but couldn’t lie on a soft bed. Two days later, and on Saturday, August 27th, she went to a hospital and there Dr. LeMire attended, her. Plaintiff remained in the hospital a week and had to sit in a chair all the time. Plaintiff testified that her meals had to be brought to her in her bedroom all winter and that she suffered pain all the time, and especially when she moved; she got up 3 or 4 times during the night and Mrs. Potvin assisted her; that she wears a corset and never, leaves it off, because she feels the corset helps her. Mrs. Potvin testified that the mattress was put back on her bed in March. Plaintiff says she sleeps on the boards yet.
Dr. William A. LeMire, plaintiff’s attending physician, sworn as a witness for plaintiff, testified that he examined plaintiff August 27, 1949, 2 days after the accident, and that there was a muscular spasm in the lumbar group of muscles, and tenderness' along the spine and lower back region. He further testified:
“I had her confined to St. Francis hospital in Escanaba on September 2, 1949. X-rays were taken at that time. The X-rays showed a compressed fracture of the first lumbar vertebra with fracture of the anterior lip which more than likely is a fracture through an arthritic spur, increase in the intervertebral space between the first and twelfth lumbar vertebrae; there is shortening in the length of the anterior body of the first lumbar, shortening in the twelfth lumbar showing slight compression of the thoracic vertebrae and compressed fracture of the first lumbar vertebra. A compressed fracture is when part of the vertabra is crushed down, due to pressure. The X-rays taken from the anterior-posterior view, show a compression in the first lumbar vertebra and twelfth thoracic vertebra. Exhibit 5 is an anterior-posterior view showing a compression in the first lumbar and twelfth thoracic vertebrae. On. December 7th, the X-rays again showed our depressed or compressed fracture of the first lumbar vertebra. The twelfth shows healing; the first lumbar shows healing; but we still have our shortening in the distance between the anterior body of the first lumbar as compared with the second lumbar and the eleventh thoracic. The shortening here. This body here is compressed as compared with this one. And the distance. The compression is permanent.
“There is decrease in the calcification of the whole spine. It means that the nutrition of the spine has been decreased; a decrease in the circulation with resultant loss of mineral substance in the bone due to nonuse. It makes the bone weaker; more brittle. * * * There is a little angnilation of the spine at the site of the fracture; a tilting of the spine.”
The doctor further testified that he continued to care for plaintiff until X-rays were taken on August 31st and that she continued to complain of pain and soreness in the back, and that she was instructed not to bend or do any heavy lifting; that she stayed pretty much on her back; that she was given heat and massage and physiotherapy; that he continued to care for her up until the trial. He further testified plaintiff weighed 169 pounds when he first examined her and that in the week before the trial she weighed 172 pounds. He further testified,
“The prognosis would be pretty good providing she does not get another fall or gets pushed forward to jack-knife the spine.”
Dr. John J. Walch, defendant’s witness, testified that he examined plaintiff at a hospital in Escanaba on or about October 21, 1950, that she was in a room with Dr. Harold G-roos when he arrived; that she moved about the examining room by herself without any aid; and that X-ray plates were taken of the dorsal and lumbar spine, anterior, posterior and lateral; and that he took her history. Dr. Walch further testified:
“Q. Now upon your examination, doctor, what would you say in your opinion in regard to her recovery?
“A. She still has some pain, I think, on movement, as anyone else would have with arthritis, and this lumbar vertebra seems to be well healed. These lumbar vertebrae. Pretty well healed. And I don’t say she could do heavy work. She has to be careful.
“Q. In what relation is her age to this condition? As to the arthritis ?
“A. That is usually caused by age and the colds and the different things we have during life. That causes the arthritis.
“Q. And do you think that under the conditions she will make a complete recovery?
“A. No, she never will, on account of that arthritis she has. That is going to keep her down.
“Q. I mean as far as the injury; the fracture; will that heal over completely?
"A. Our X-ray reports state it is completely healed.”
Dr. Harold Q. Groos, defendant’s witness, testified that with Dr. Walch, he made an examination of plaintiff, October 18, 1950; that she was walking at that time; that she gave a personal history. Dr. Groos testified among other things as follows:
“Q. Now can you point out to the jury on that [X-ray] plate’where there is any positive fracture or was not positive fracture.
“A. This is the first lumbar vertebra. At the superior upper border there is — here—with a projection of an eighth of an inch on its upper anterior surface, indicative of-an old injury at this point. The height of the body of the vertebra is somewhat slightly diminished in respect to the bodies of the corresponding vertebrae. There is cupping of several of the vertebrae along the entire spine. The first lumbar apparently is healed and a solid union has taken place at the site of a previous possible fracture. There is also arthritic spurring and projections along the course of several of the other vertebral bodies.”
Dr. Groos further testified that the X-ray plate shows that the upper part of the body of the first lumbar has been slightly compressed and evidently the anterior part of the bone has been pushed out a trifle, but it had completely healed at the time the picture was taken, and that there was evidence of a definite osteo-arthritis present in practically all of the vertebrae; that there was evidence of a fracture at the anterior upper border of the first lumbar. Dr. Groos further testified:
“Q. Prom your examination of this patient and from your examination of the plates as have been exhibited here what is your opinion as to the proper or satisfactory progress of this condition?
“A. Well, the progress of the case has been quite satisfactory. Without the application of any amount of treatment she has made as good a recovery as I believe she is able to make under the conditions.”
Dr. Groos also testified that he and Dr. Walch signed a report, October 18, 1950, in which it was stated, “It is hard for her even to walk.”
Plaintiff’s total doctor’s bill is $200 and ber hospital bill, $101.50. No charge was made by Mrs. Potvin for caring for plaintiff at Father Thompson’s residence. Before the accident, plaintiff had been postmistress at Franklin Mine for 10 years, had voluntarily retired, and was receiving a pension at first of $27 a month and 6 months later it was raised to $34.74 per month. The testimony does not warrant any conclusion that plaintiff suffered any monetary loss greater than $301.50 as a result of the accident. The balance of the verdict of $12,000 must have been for pain and suffering. No ground is shown for allowing plaintiff damages for loss of future earnings.
Defendant claims the verdict is excessive. The doctors sworn as witnesses agree on the fact that plaintiff has well recovered from her injury. It is clear that the vertebrae involved in the injury are well healed. The painful effects of the compression of the vertebrae have evidently faded out with the complete healing of the vertebrae. No doctor testified that decaleification of the vertebrae was caused by the injury. Plaintiff’s- attending physician and witness, Dr. LeMire, testified that he would not undertake to say that trauma will cause more arthritis. Plaintiff’s high blood pressure was not caused by her injury. Plaintiff’s present pain is evidently caused by arthritis and high blood pressure not attributable to the accident, but which the jury very evidently must have attributed to the accident, for otherwise they would not have made the high award which they rendered.
Plaintiff went into details as to her suffering and consequent helplessness even after the vertebrae had healed and also as to present and future helplessness and consequent need of assistance, none of which is attributable to the injury.
For some cases in which we have required a remittitur of part of an excessive award, see: McLean v. American Railway Express Co., 243 Mich 113; Leary v. Fisher, 248 Mich 574; Pembor v. Marcus, 307 Mich 279.
The verdict is excessive.. The judgment appealed from will be set aside unless the plaintiff shall remit all of the verdict in excess of $5,000. No costs, neither side having prevailed in full.
North, C. J., and Dethmers, Butzel, Carr, Bushneld, Sharpe, and Boyles, JJ., concurred. | [
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Bitshnell, J.
Plaintiff Henrietta A. Rybinski, who made no attempt to collect past due alimony for more than 28 years, obtained an order requiring her divorced husband to pay the sum of $2,000 “forthwith as settlement in full for any and all claims” arising out of a decree of divorce granted on June 25, 1921. At the time of the divorce the daughter of the parties, Zenonia, was 13 months old. The wife was awarded the custody of the infant, and the husband was ordered to pay the sum of $10 per week until further order “for the support and maintenance of said minor child and said plaintiff.”
No further calendar entries appear in the cause until February 10, 1950, when the divorced wife sought enforcement of the decree. The friend of the court, as referee, reported that the plaintiff had remarried 7 days after the entry of the decree; that the daughter had since been married; that defendant had remarried in 1924 and has another daughter 24 years old; and that 13 years after the divorce defendant, by order of the probate court, was permitted to change his name to Carl Robinson.
Defendant visited Zenonia on several occasions before he left for China in 1946. Except for a 4 months’ visit to Poland in 1921, and a year in China, Rybinski had lived at various addresses in Detroit and his name had been listed in city directories from 1921 to 1936. Since his divorce, Rybinski had been employed at various manufacturing plants in Detroit and had acquired property, title to which was recorded in his name. He had been listed on the tax rolls and election records either as Karol Rybinski or Carl Robinson. Rybinski stated in an affidavit filed in the cause that a mutual friend of the parties has always known where defendant lived.
Zenonia testified'before the friend of the court that she first saw her father about 24 years after the divorce, and'that he acknowledged he owed for her support. She further stated that he' offered to buy her a home and set her up in business, and even went so far as to examine certain properties with her. Plaintiff and her sister testified with respect to such promises to Zenonia. All of this was denied by Bybinski. The record shows that the father paid a hospital bill of $300 for Zenonia; and although she testified that she had received only $78.50 worth of money and clothing from him, he insisted that he had also given her about $400 worth of clothing and spending money.
Defendant is an industrious man who earns good wages, notwithstanding some periods of unemployment. He has been able to give his second daughter an automobile that cost $2,500; and has accumulated, with the assistance of his present wife, some government bonds and real property.
The referee informed the court that it seemed logical to assume that the original $10 per week order was intended to be $5 for the wife and $5 for the child. In the light of plaintiff’s immediate remarriage, he suggested that the order be modified to provide only $5 per week for the .support of the daughter. He further assumed that the alimony payments would have been discontinued when the .daughter reached the age of 17. He then computed the arrearage at $4,150 arid allowed a credit for the money expended for Zenonia. The referee stated, “considering the late date at which this controversy arises, it would appear that some reduction of a substantial degree should be allowed.” He recommended that the defendant be required to pay the plaintiff the sum of $2,000 as settlement on such terms as the court should direct. The recommendation was accepted by the court with the requirement that this sum be paid forthwith.
As in Chipman v. Chipman, 308 Mich 578, the rights of. a minor child are not involved^ .The ap peal of Rybinslri raises the question of whether plaintiff is barred from recovering for the support of her minor child because of her delay in attempting to secure enforcement of her divorce decree.
Laches have been held to bar an action to recover accrued alimony. Stone v. Stone, 162 Mich 319, and Smith v. Smith, 246 Mich 80. See, also, Chipman v. Chipman, supra, and Sonenfeld v. Sonenfeld, 331 Mich 60. However, mere lapse of time, without a showing of prejudice, does not constitute laches, Wright v. Brown, 317 Mich 561; but “it must appear the delay resulted in some prejudice to the party asserting laches which would make it inequitable to disregard the lapse of time and incidental consequences.” Manheim v. Urbani, 318 Mich 552, 555.
Plaintiff is guilty of unreasonable delay in prosecuting her claim. But, on the other hand, there is little if any showing of such change in defendant’s circumstances that would make plaintiff’s delay prejudicial. Lacking this essential element, defendant is unable to rely upon laches.
While no cases in this State have expressly applied the generally accepted theory, that the statute of limitations begins to run against each alimony instalment as it becomes due, there are Michigan cases which indicate approval of this view. Dewey v. Dewey, 151 Mich 586; Kaiser v. Kaiser, 213 Mich 660; Gutowski v. Gutowski, 266 Mich 1; and Sullivan v. Sullivan, 300 Mich 640. See, also, authorities annotated in 137 ALR 890. An action founded upon a judgment must be commenced within 10 years after the cause of action accrued. CL 1948, § 609.13 (Stat Ann § 27.605).
Whether defendant’s acknowledgment of the debt or his promise to pay will suspend the operation of the statute of limitations is not before us. Any statements or promises made by Rybinslri were to his daughter, and she is not a party to this action.
Although plaintiff’s petition was filed February 10, 1950, defendant’s absence in China for 1 year during 1947 suspends the operation of the statute of limitations (CL 1948, § 609.17 [Stat Ann § 27.609]), for that period, and plaintiff is entitled to recover those instalments for the support of her child which became due after February 10,1939. In order to determine what payments defendant was obliged to make after that date, we must also determine the date upon which the daughter was no longer entitled to the support of her father.
The court may alter or revise a decree providing for the care of the child at any time when circumstances may require. CL 1948, § 552.17 (Stat Ann § 25.97). See Barry v. Barry, 291 Mich 666. However, the order of the trial court does not indicate what calculations and assumptions of the referee were accepted by the trial judge.
The decree provided for payments until further order. No further order was made until the instant one in 1951. When the decree was entered in 1921, the statute, then as now (CL 1915, § 11407 [CL 1948, § 552.16 (Stat Ann § 25.96)]), provided for the care, custody and maintenance of the minor child. See West v. West, 241 Mich 679. Hnder that statute and the principles of the common law the court could not order support for a child after it had reached majority. See Chaffee v. Chaffee, 15 Mich 184. Since the court did not alter the support provisions of the decree, we, therefore, must assume that the defendant was obliged to contribute to his daughter’s support until she reached the age of 21 on May 24,1941. That obligation, if computed at $5 per week from February 10, 1939 to May 24, 1941 would amount to $595.
The order is modified to require the payment of $595 and the cause is remanded for the enforcement thereof. Cost to plaintiff in both courts.
North, C. J., and Dethmers, Btjtzel, Carr, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Butzel, J.
On August 18,1947, at about 1:2Q p.m., Sam Ashley, plaintiff, was struck by a taxicab'owned by Bert Kilborn and driven by John Ray Johnson, defendants. Plaintiff was on the way to the Ford factory where he worked. ■ He was injured while attempting to cross Michigan avenue from the northwest to the southwest corner of its intersection with Griswold street in Detroit, Michigan. Michigan avenue runs approximately east and west, Griswold runs north and south. The intersection is one of the busiest in downtown Detroit. There are double streetcar tracks on Michigan avenue, and near the southwest intersection with Griswold street, there is a marked area where Ford workers can catch streetcars that will take them to their work. Plaintiff worked on the 3:30 p.m. shift and had arrived at the northwest corner of Michigan avenue and Gris-wold street. He testified as follows:
“Q. All right. You say that light was green? •
“A. Green. I observed that light before I started across the street.
“Q. What color was it before you started across?
“A. Green. Before I started to cross, I made observation for other traffic conditions. I lookéd both ways before I stepped off the curb, — the light was green. I looked east and west. That was about 1:20 in the afternoon. That is the time of the accident.
“I looked towards the east. I seen some cars standing on car track, on the Griswold car track. That is Michigan and Griswold. Eight in the intersection; wasn’t any traffic whatever moving at that time. Then I started across to the middle ways, about 15 feet. About 13 feet into the street, from the curb. And just as I got 15 feet to the curb, the next time that I looked, and after again I looked and the cab was right on me, I ran back west, by the time I got out of the way the cab hit me.
“Q. From the time that you left the curb on the north side of Michigan, did you see the light across on the southwest corner?
“A. I didn’t ay any attention to one light, when I go across the street I pay attention to the light that I am going across on.
“Q. All right. Did yon watch that light, more than once ?
“A. Sure, I just looked at the light as I was going across the street.
“Q. Did that signal change from the green at any time, while you were crossing?
“A. No, sir. Not as I knows of.
“Q. All right, were you watching it?
“A. Not all the time, after I seen the green, I kept walking, I didn’t pay any attention to it any more.
“Q. All right, you say you saw the cab and you ran west?
“A. West.
“Q. Caught up with you ?
“A. Yes, sir.
“Q. What happened when it caught up with you?
“A. Hit me and knocked me I reckon seemed to be about 15 feet.”
He also testified that the northerly curb of Michigan avenue is about 25 feet distant from the most northerly streetcar track. The cross-examination and other testimony on behalf of plaintiff prior to the time he rested brought out no further facts in regard to what happened just prior to the accident.
When plaintiff rested after making out his prima facie case, defendants moved for a directed verdict in their favor on the ground that plaintiff by his own testimony showed he was not free from contributory negligence and therefore could not recover. The trial court reserved decision under the Empson act, and defendants presented a complete defense both as to their own freedom from negligence and plaintiff’s, contributory negligence. In rebuttal, plaintiff called a witness who testified that plaintiff had the light in his favor when he crossed Michigan avenne, hut when the witness was confronted with a written statement to the contrary effect, he testified that but a few days before he went on the witness stand, he was shown the statement at his own request and he then stated it was true, although on the witness stand he repudiated a large part of it. The jury held in plaintiff’s favor, the trial.judge denying motions for directed verdict, a judgment for defendants non obstante veredicto and for a new trial. Defendants appeal.
Inasmuch as a jury may believe either 1 of the inconsistent statements of a witness, we rest our decision on the testimony as it stood when plaintiff first made out his prima facie case. Defendants allege that such testimony indicates that plaintiff was contributorily negligent as a matter of law. Plaintiff had the burden of proving his freedom from contributory negligence. This he did not do. He testified that he went into the street a distance of 13 or 15 feet before he looked for traffic from the east. He must have known that' he was crossing a very busy intersection, that traffic lights change at frequent short intervals, but he further testified that upon leaving the curb, he paid no further attention to the traffic light.
A pedestrian must not only make proper observations before crossing a street, observe approaching traffic and form a judgment as to its distance away and speed, but must continue his observation while crossing the street and exercise such a degree of care and caution as an ordinarily careful and prudent person would under like circumstances. Malone v. Vining, 313 Mich 315. The factual circumstances in the numerous automobile accident cases that have come to this Court differ in various. respects, but there are many that have sufficiently similar or analogous facts so that the decisions-therein and the principle's set down therein are a guide in the instant case. Plaintiff, at the first motion by defendants for a directed verdict, had shown that he was guilty of contributory negligence as a-matter of law. After leaving'the curb, he failed to look to the east until he was struck, and he did not look ahead to see whether or not the light had turned to red. One cannot enter.the intersection of busy streets and carelessly fail to continue attention to traffic conditions.
Halzle v. Hargreaves, 233 Mich 234, presented a similar situation. Plaintiff had made proper observations upon leaving the curb, and saw no automobile for a block of unobstructed view. She then traveled 13 feet into the middle of the street without further observation, then saw an automobile bearing down upon heir when it was too late. She admitted that she might have avoided the accident if she had looked and seen the approaching car. The Court said, at page 237:
“Vigilance is an essential and available safeguard to life and limb in this automobile age and reasonable care requires constant exercise of the faculty of sight while crossing a city street. Under plaintiff’s testimony she was negligent and the circuit judge was right in so holding. Jones v. Armstrong, 231 Mich 637, and cases there cited. We recognize the rule that it must be a clear case of want of ordinary-care to justify the court in holding there was negligence as a matter of law, but when the facts are beyond dispute the law must be applied. Counsel for plaintiff asked leave to argue the question of plaintiff’s negligence to the jury and contends there was error in not permitting him to do so. The question was one of law upon the conceded facts and there was no error in the refusal.”
In Boyd v. Maruski, 321 Mich 71, a case involving an accident at an intersection with the protection of changing lights, we reviewed other cases reaffirming the duty of a pedestrian to continue to observe traffic conditions even when starting with the protection of a green light, and said on page 77:
“Since the traffic signal had turned red against the traffic on Wyoming avenue before plaintiff left the bus, in the exercise of ordinary care she was bound to anticipate that the light might change before she could complete crossing Wyoming avenue. But-regardless of whether the light did change while plaintiff was in the act of crossing Wyoming avenue, nonetheless even with the traffic light in her favor, she was bound to use such care as an ordinarily careful and prudent person would use in looking for approaching traffic. Under her own testimony plaintiff failed to make such observation, and in that respect she was guilty of negligence which was a proximate cause of her accident.”
Reaffirming the duty of the pedestrian to use a proper degree of care, see the more recent case of Cioffari v. Blanchard, 330 Mich 518.
In accordance with our holdings, defendants’ motion for a directed verdict should have been granted when first made, and it becomes unnecessary to discuss alleged errors in the charge of the trial court.
The judgment for plaintiff is reversed without a new trial. Costs to defendants.
North, C. J., and Dethmers, Carr, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred.
CL 1948, § 691.691 et seq. (Stat Ann and Stat Ann 1949 Cum Supp § 27.1461 et seq.).—Reporter. | [
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] |
Reid, J.
Plaintiff, on leave granted, appeals from an order of defendant board determining that Local 634 of Hotel & Restaurant Employees’ & Bartenders’ International Union, A. F. of L. (hereinafter spoken of as the union) is the appropriate bargaining unit for employees of plaintiff, and ordering a strike vote among said employees on the issue of representation.
The Hotel Olds is a metropolitan type hotel with several dining rooms on 3 floors, a bar, its own furniture repair and upholstery department, its own laundry, its own barbershop and its own print shop. The total number of nonsupervisory employees is between 210 and 220, of whom about 200 are nonclerical. The union is an international union which includes hotel employees in its membership and which charters a large number of different types of local unions. There have been 2. successive local charters issued by the union, local 448 and local 634. The constitution shows that there is no local autonomy.
Early in 1950, the union requested recognition of local 448 as the bargaining representative for the employees of the Hotel Olds, and on May 8th, notified the defendant board of a dispute. Pursuant thereto, election proceedings on the question of representation were instituted by means of an agreement between plaintiff and local 448 for a consent election, which agreement contained the following:
“The following constitutes the unit appropriate for the purpose of collective bargaining: The name of the unit is as follows: All regularly employed employees excepting those in management, supervisory, executive, front office, telephone operators and auditing department.”
181 employees were agreed upon as eligible to vote under the above-quoted descriptive words. On this basis the recognition election was held May 17, 1950, under the supervision of the defendant board. The recognition proposition carried. Thereafter and on the same basis for qualifying employees as voters, with a list of 188 employees agreed on as eligible to vote under the above quoted descriptive words, a requested strike election was called for and held under the supervision of defendant board, on August 17, 1950, at which the strike proposition was defeated. The union protested the election on the ground that the persons who voted differed from the agreed list; but afterwards withdrew its protest and the board closed the case September 7, 1950.
A new local was formed some time before September 8,1950, on which date the union demanded recognition of the new local, 634, and on September 26, .1950, notified defendant board of a dispute and requested a strike election. The new local changed materially the bargaining unit to contain only a portion of the classifications .of employees , which were in the previously agreed bargaining unit. The new local claimed representation as sole bargaining agent for the employees. The defendant has decided to use the reduced unit as the bargaining unit. Plaintiff protested as improper and illegal the change from the basis for membership as in the previously established bargaining unit, local 448, and further objected that a strike vote should not again be had within a year. On April 9,1951, the defendant closed the case without action.
On July 30, 1951, local 634 renewed its claim for representation as a bargaining unit though consisting of a portion only of the .employees previously agreed to by plaintiff. The union notified the defendant board of a dispute.
A hearing was held September 13, 1951, and the defendant board on September 21, 1951, ordered the conducting of a.strike election vote in the new bargaining unit, local 634, requested by the union, from which decision the instant appeal was taken.
Important and practically controlling are questions of construction to be given to section 9e of PA 1939, No 176, as added, being CL 1948, § 423.9e (Stat Ann 1950 Bev § 17.454 [10.4]), which paragraph is as follows:
“The board, after consultation with the parties, shall determine such a bargaining unit as will best secure to the employees their right of collective bargaining. The unit shall be either the employees of 1 employer employed in 1 plant or business enterprise within this State, not holding executive or supervisory positions, or a craft unit, or a plant unit, or a subdivision of any of the foregoing units: Provided, however, That if the group of employees involved in the dispute has been recognized by the employer or identified by certification, contract or past practice, as a unit for collective bargaining, the board shall adopt such unit.”
Plaintiff claims that, within the meaning of the proviso of the statute, the holding of 2 elections under the agreed on designation of classes of employees as eligible to vote, constituted “past practice,” recognizing as proper the membership basis in local 448, and that the employer “recognized” the unit within the meaning of the proviso by certifying in writing, “The following constitutes the unit appropriate for the purpose of collective bargaining,” the same being part of the agreement for recognition election of local 448. Plaintiff further claims that defendant board by its certificate of the results of the recognition election of May 17, 1950, identified (within the meaning of the proviso) local 448 as “Hotel Employees Union, Local448, AFL;” and that defendant similarly identified local 448, in its certification of the results of the strike election of August 17,1950; and that the agreement of May, 1950, approved by the defendant board, is a “contract” identifying local 448 as the bargaining unit.
Each of the above-specified claims of the plaintiff as to construction to be given the proviso of the statute in question, is denied by the defendant in its opinion and contended against in its brief.
The testimony of the president and manager of plaintiff company clearly showed that the employees included in local 448 but excluded in local 634, are intimately related to and interested in the general operation and any possible threatened cessation of operations of the hotel.
We note the decision of the Massachusetts Labor Relations Commission, In re Salem Hotel Corporation d/b/a the Hawthorne Hotel and the Hotel and Restaurant Workers, Local 290, A F L, 19 LRRM 1245, decided November 20, 1946:
“In designating bargaining units as appropriate, a primary objective of the commission is to constitute the largest unit which, in the circumstances of the particular case is most compatible with the effectuation of the purposes of the law and to include in a single unit all common interests.”
The quoted statement in the Hawthorne Case is, so far as applicable to the instant case, in keeping with the directions of the cited proviso of the statute.
The defendant seems to disregard the general principle set forth in the Hawthorne Case, as hereinbefore cited, which general principle subject to the provisions of the statute, should. be observed by defendant board.
Defendant accentuates the case of Hotel Utah Co. v. Industrial Commission, 116 Utah 225 (209 P2d 235). However, the'Utah statute, as cited in the opinion in that case, does not contain any such provision as is in the proviso in section 9e of the Michigan statute, hereinbefore cited.
The opinion of defendant board fails to disclose any reason whatever for excluding from the new local, 634, those who are thus excluded but formerly were in local 448. We are not by this opinion determining that the rules for membership, once es-r tablished, must forever remain the same, without any showing as to what would best secure to the employees their right of collective bargaining, nor do we determine what the future happening must be that should change the rules as to membership.
* Defendant board was in error in ruling that the holding of 2 elections under the agreed on. designation of classes of employees as eligible to vote did not constitute past practice within the meaning of the proviso in section 9e.
We further consider that the defendant board identified by certifications the former local 448 and thereby recognized the appropriate basis for membership in the bargaining unit by reason of the certificátions of the results of the recognition election of May 17,1950 and the strike election of August 17, 1950. Under the statute and the facts in the case át bar, it was the duty of defendant board to recognize as the bargaining unit, the group of employees as established by the agreement and certificáte in the election of May 17, 1950.
“ The defendant’s decision and order of September 21, 1951 is set aside and the board is perpetually enjoined from conducting the strike election provided for’ in its decision and order of September 21, 1951. No costs, a public question being involved.
; North, C. J., and Dethmeks, Butzel, Carr, Btjshnell, Sharpe, and Boyles, JJ., concurred. | [
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] |
Carr, J.
The parties to this case were married in April, 1928. In November, 1949, serious trouble developed between them, resulting from misconduct on the part of the defendant. In consequence, plaintiff became very angry at defendant and stated to him in substance that she would not continue to live with him longer in the marital relation. Thereupon defendant began preparations for leaving the home, unequivocally declaring his intention to do so. Plaintiff objected to his leaving without making such arrangements with reference to property owned by the parties as would enable her to maintain a home and to care for their children, a daughter aged 18 and a son aged 15.
The matter was discussed at some length and plaintiff’s father, at her request, joined with her in attempting to dissuade defendant from his proposed action. It was, in substance, plaintiff’s position, in which her father joined, that defendant should execute conveyances of his interest in the real estate of the parties, that he should remain in the home where a room would be furnished him, and that the parties, in order to prevent a scandal in the community that would result to the prejudice of their children, should continue to maintain outward appearances of the continuance of their family life. The exact nature of the agreement finally reached is in dispute.
In accordance with his understanding of what plaintiff and defendant had agreed should be done, the latter executed a quitclaim deed to plaintiff and the 2 children as grantees of his interest in the property in the city of Clare, Michigan, on which the fam ily lived, which the record indicates was worth approximately $10,000. Conveyance of this property liad been made to plaintiff and defendant, as husband and wife, in 1947. It is not disputed that they held it as tenants by the entireties. They were also vendees under a land contract for the sale and purchase of other real estate in Clare, in which they had an equity at the time of their above-mentioned trouble of approximately $2,500. Defendant executed to plaintiff an assignment of all his interest in said contract. Possession of the deed and the assignment was given to plaintiff. Shortly thereafter she caused the deed to be recorded and placed the instruments of conveyance in a safety deposit box in a local bank, which box she rented in her own name.
For some time prior to the execution of the conveyances above-mentioned the parties had operated a restaurant on the lot on which they maintained their home, which faced on McEwan street in the city of Clare. The record indicates that defendant did the greater part of the necessary work in connection with the operation of the restaurant, and that he was assisted therein by the plaintiff. Presumably in accordance with the agreement made in November, 1949, they continued to carry on said, business, and defendant lived in the home, •for a period of several weeks. Because of an act on his part that greatly offended plaintiff she insisted, that he leave the premises. He did so on or about January 22, 1950, and on the 3d of February, following, plaintiff filed suit for divorce, alleging extreme and repeated cruelty towards her on the part of defendant, and averring also that the parties had entered into a property settlement.
• Defendant filed answer to the bill of complaint and also filed a cross bill alleging in substance that he had executed the conveyances of his property interests because of fraudulent misrepresentations on the part of plaintiff and cross-defendant. In substance it was his claim as pleaded, and as asserted on the trial, that he was led by plaintiff’s and cross-defendant’s statements and conduct, including her apparent acquiescence in statements made by her father, to believe that if he would execute such conveyances as a guaranty of his good faith and would refrain from the improper conduct which had caused the difficulties between the parties she would undertake to forget his previous misconduct and resume a normal home life with him. Cross-plaintiff further claimed that such representations were made in bad faith, that in fact cross-defendant had no intention of again living with him as his wife, and that the primary purpose of such representations was to induce him to execute the conveyances. The cross bill also alleged that because of cross-defendant’s failure to keep her promises the consideration for the transfers of property to her had failed. Cross-plaintiff asked that the deed and the assignment of the land contract be cancelled, that his interests in the properties in question be restored to him, and that the property belonging to the parties be divided by the court in such manner as might be found to be equitable. An answer to the cross bill was filed, denying that cross-defendant had been guilty of fraudulent conduct and denying that under the facts cross-plaintiff was entitled to the relief sought by him. Subsequently plaintiff filed an amendment to her original bill of complaint, alleging adultery on the part of the defendant as a ground for divorce. On the trial, however, no competent testimony to prove such charge was introduced.
The record filed in this Court indicates that the parties entered into a stipulation to the effect that their minor children should be added as defendants and that the plaintiff and cross-defendant should be appointed their guardian ad litem. Presumably this was done because of the fact that they were named with her as grantees in the deed executed by cross-plaintiff purporting to convey his interest in the home. However, it does not appear that an answer, or other pleading, was filed on behalf of the children or that they were represented on the trial by counsel. The trial judge in his opinion stated in substance that the deed in question could not be set aside as to the children because they were not proper parties to the action, and there was no showing of any conspiracy to which they were parties, or of other improper conduct on their part. No claim is made that the children may be regarded as parties to the case in this Court.
Following presentation of proofs and arguments, the trial judge came to the conclusion that plaintiff was entitled to a decree of divorce on the grounds of extreme and repeated cruelty, but that defendant and cross-plaintiff was entitled to have the deed set aside and cancelled insofar as any interest was thereby conveyed to the plaintiff and cross-defendant, and -that the assignment of the land contract should likewise be set aside. Following a detailed review of the facts the judge stated his conclusions from the evidence as follows:
“That it appears to the court when plaintiff obtained the deed and assignment of contract from the defendant that she had no intention of living together with the defendant as husband and wife. Further that the deed and assignment of contract were obtained from the defendant by the plaintiff by reason of the confidence which he placed in her as his wife and upon her entreaties, and because of her father, to stay and make a home for the family and to conduct the business and provide a livelihood for the family. The land was still to be occupied as a home stead by both of them and the business was to be operated by the defendant. Because of her entreaties and request to stay and do all the things that he did do it would appear that the parties would live together and conduct a home in name if not in substance; that the family would be intact and the livelihood and welfare financially of the family group would be assured. If he would have been advised at the time that she would not further live with him as his wife under any circumstances and would not make an honest and good faith effort to forgive him for his act of improper conduct, there is no question but what he would have refused to have signed the deed and the land contract.
“It is the court’s opinion that her feelings were such that she'did not entertain any desire to forgive him for his misconduct or to attempt in any manner or permit him to live with her as husband and wife at any time in the future when the deed and land contract were signed, which is contrary to her entreaties and representations to him. Having obtained the property under the agreement that the parties reside together in the homestead and that he operate the business, it does not appear equitable to permit the plaintiff to retain the property which she acquired from her husband.”
Without reviewing the evidence in detail, we think it fully supports the holding of the trial court. The conclusion is fully justified that plaintiff and cross-defendant did not intend at the time of the negotiations leading up to the execution of the conveyances in question to resume marital relations with defendant and cross-plaintiff at any future time. She sought to obtain the property for the benefit of herself and her children, and quite possibly had also in mind preventing the domestic difficulties of the parties becoming generally known. Her conduct after she received the conveyances was such as to clearly indicate that she had neither affection nor respect for her 'husband. Whether- her attitude was justified by his conduct is not material in the consideration of the question whether he was induced by fraudulent conduct on her part to make conveyances of his interests in the properties. That he would not have made such conveyances except in reliance on his belief that her statements to him and her acts were made and done in good faith, is, we think, clearly shown by the record. He does not claim any agreement for reconveyances of the properties to him but, rather, that he was induced to execute the deed and the assignment because of the hope and belief on his part, induced by plaintiff and cross-defendant, that the home life of the parties might be re-established. Such conveyances were made to demonstrate his good faith in making assurances as to his future conduct, and as a guaranty against further violations of his duties with respect to the marital relation.
Plaintiff and cross-defendant has appealed from the decree entered by the trial court in accordance with the opinion filed. In urging that the defendant and cross-plaintiff was not entitled to have his conveyances set aside as to her, reliance is placed on the decision of this Court in Wipfler v. Wipfler, 153 Mich 18 (16 LRA NS 941), which followed the prior decision in Dyer v. Skadan, 128 Mich 348 (92 Am St Rep 461). In the Wipfler Case, however, there was no question of fraudulent conduct inducing the execution and delivery of the deeds in question. The matter at issue was whether there had in fact been a valid delivery resulting in the vesting of title in the grantee. The controlling question in Dyer v. Skadan, supra, was of a similar nature. In Benore v. Benore, 198 Mich 113, also cited by counsel for appellant, in which the plaintiff sought to have set aside a deed and bill of sale executed by him to defendant, his wife, it appears that the latter was deemed guilty of inequitable conduct but there was no fraud on her part of such character to justify the setting aside of the conveyances, nor was relief sought on that ground.
In holding that the cross-plaintiff was entitled to have the conveyances set aside, the trial judge in the instant case cited Judd v. Judd, 192 Mich 198, which involved a factual situation analogous to that in the case at bar. After discussing the issues in the case and the claims of the parties, it was there said:
“These contentions of counsel must turn upon the question as to whether it can be said any fraud or deception was practiced by defendant in obtaining the conveyance. If the conveyance were a voluntary one, as contended by defendant, complainant is entitled to no relief, even though it be admitted that a parol trust was annexed to the conveyance. CL 1897, § 8835 (CL 1915, § 11571). If complainant is right in his contention that the record shows that he was deceived by the defendant into the belief that she intended to continue the marriage relation with him, and if at the time she made the declarations and promises she intended to secure a divorce from him as soon as convenient, and thereby deprive him of all benefit in the property, it was a fraud upon him, and it is within the power of a court of equity to assist him. Witbeck v. Witbeck, 25 Mich 439; Stiles v. Stiles, 14 Mich 72; Dickerson v. Dickerson, 24 Neb 530 (39 NW 429, 8 Am St Rep 213); Meldrum v. Meldrum, 15 Colo 478 (24 P 1083, 11 LRA 65); Fischer v. Fischer, 245 Ill 426, 429 (92 NE 283) ; Turner v. Turner, 44 Mo 535; 21 Cyc, p 1301.”
The Judd Case was cited with approval in Stephenson v. Golden, 279 Mich 710, 742. We think that the principles there discussed and followed are pertinent in the instant controversy.
The decree of the trial court from which- plaintiff and cross-defendant has appealed, after granting to her an absolute divorce, gave to her the household goods, furniture and belongings of the parties, and a 1/2 interest in the lot in the city of Clare on which the home of the parties and the restaurant business that had been conducted by them were located. Defendant and cross-plaintiff was expressly granted a 1/6 interest therein, and the decree further recited that the daughter and the son should each own a 1/6 interest, subject to the right of plaintiff and cross-defendant to use defendant and cross-plaintiff’s 1/6 interest as long as she might desire, or until her remarriage, but not exceeding a period of 6 years. The right to such use was declared to be in lieu of an award of alimony.
Defendant and cross-plaintiff was given the vendee’s interest under the contract for the purchase of the other real estate above referred to, in which the parties had an equity of approximately $2,500. He was ordered to pay plaintiff the sum of $150 by way of attorney fees and the further sum of $15 as costs, and he was assigned the interest of the parties in a 1941 Buick automobile. Plaintiff and cross-defendant was awarded all sums of money, which approximated $4,600 at the time of the trial, on deposit in postal savings or in any bank, whether in her name or in the names of both parties. Such award was made subject to the requirement that she pay to defendant and cross-plaintiff, presumably as his proportionate share of such moneys, the sum of $750 and execute an assignment of any interest that she might have in the automobile.
The conveyance by defendant and cross-plaintiff to his wife and 2 children of his interest in the home and restaurant property suggests a question not referred to on the trial in circuit court nor by counsel in their briefs on appeal. As noted, the property was owned by plaintiff and defendant as tenants by tbe entireties. That the husband might have released his interest to the wife, thereby vesting her with full and complete title, is not open to question. See Ash v. Ash, 280 Mich 198, and prior decisions therein cited. CL 1948, § 557.101 (Stat Ann § 26.201). The effectiveness of an attempted conveyance by one tenant by the entireties to a stranger to the title is a matter of different character. In Berman v. State Land Office Board, 308 Mich 143, 144, it was said:
“This Court has repeatedly held that when title to real estate is vested in husband and wife by the entireties such an estate bars separate alienation by one spouse only. See Eadus v. Hunter, 249 Mich 190; Nurmi v. Beardsley, 275 Mich 328; Long v. Earle, 277 Mich 505.”
See, also, Schultz v. Silver, 323 Mich 454, 459, and prior decisions there cited. As before noted, the children are not parties to the case before us. In consequence their rights may not be determined. In view of this aspect of the situation, and the further complications that might arise under the decree of the trial court if defendant and cross-plaintiff is left with the one-sixth interest granted to him, we think that the- decree should be modified by granting to plaintiff and cross-defendant all the right, title, and interest of the parties to this suit in and to said property, subject, however, to the determination of the rights and claims of the children if such determination is sought in a proper proceeding. In view of such modification the amount of the cash payment that defendant and cross-plaintiff shall receive from the assets of the parties is increased from $750 to $2,250, with the sum of $750 payable at once by plaintiff and cross-defendant and the balance in equal monthly instalments of not less than $100 until the full amount is paid. The obligation to make such payments shall constitute a lien on the interest of the-plaintiff and cross-defendant in and to the home and restaurant property. The other provisions of the decree entered in the trial court are approved.
On behalf of appellant it is asserted that the trial judge was in error in refusing to allow the 18-year-old daughter of the parties to testify. The printed record contains no reference to the offer of such testimony, but from the original transcript filed in the office of the Clerk of this Court it appears that counsel for plaintiff and cross-defendant indicated his desire to call the daughter as a witness. She was not at the time in court. Counsel stated that she was absent from the city on a trip with her high school class, and asked for a continuance to the end that she might be available. No statement was made as to the nature of the testimony that she might give, except that counsel in answer to the questions of the court indicated that it would be “corroborative” and that it would not relate to the claim of adultery set out in the supplemental bill. The trial judge indicated a preference on his part that the children should not be asked to testify. The situation was, however, that the daughter was not present in court. There was no showing that her presence could not have been had at the time of the trial nor was there any showing, other than as above indicated, as to the matters concerning which she would be questioned if the court granted a continuance of the trial to a future date when she might be present. Under the circumstances the court was not in error in refusing the continuance. If the witness had been called to the stand, and her testimony relating merely to property matters had been rejected, an entirely different question would be presented.
A decree will enter in this Court in accordance with the foregoing conclusions, without costs to either party, and the cause will be remanded to the trial court for enforcement of its provisions.
North, C. J., and Dethmers, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred.
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Kuhn, J.
Charles and Mary Schiel, in July, 1908, purchased a lot from Carrie E. C. Berston on land contract. The negotiations were had on the part of Mrs. Berston by her husband, Neil J. Berston, who signed his wife’s name to the contract. The contract was in the form of a book such as is in common use in the sale of lots in new subdivisions. . The Schiels arranged with Michael E. Houran to construct a house on the lot, and on November 5, 1909, the interest of the Schiels in the contract was assigned to Houran to secure him for what was due him. The book containing the contract and showing this assignment was produced at the hearing in this court. After the house was completed Mr. Houran and Mrs. Schiel went to the office of a Mr. Henderson, the agent of the defendant company, and the insurance policy on which this action is based was obtained on the property. The policy was issued on December 29, 1909, and insured “Neil J. Berston, of Flint, Michigan, in an amount not exceeding $1,500 on * * * two-story frame building, and additions thereto, * * * ” on the lot purchased by the Schiels from Mrs. Berston. Attached to the policy at the time it was issued was a loss payable clause, as follows:
“Loss, if any, payable first to M. E. Houran, as his contract interest may appear; balance, if any, payable to Charles and Mary Schiel, purchasers under land contract.”
The facts concerning the issuance of the policy, as testified to by Mr. Henderson, the agent, stand uncontradicted. The directions as to how the policy was to be written were given by Mr. Houran. He told him that Mr. Berston owned the fee to the property, but that he wanted the policy written so as to protect him (Houran) first, and then the Schiels. The Berstons took no part in the issuance of the policy, and had no knowledge of it. Mr. Houran paid the premium, and the policy was mailed to him the next day.
Mr. Houran died in April, 1910, and his widow, Mary M. Houran, who was his sole devisee and legatee, and Thos. F. Stockton were named as executors of his estate, and qualified as such in May, 1910. Cornelius Houran, a son of deceased, who had assisted his father in the business, continued to perform such duties after his father’s death, and more or less looked after his mother’s interest in the estate, with her consent.
The amount due on the land contract was paid' by the Schiels, and they became entitled to a deed to the lot. A warranty deed dated September 29, 1910, conveying the lot, was executed by Carrie E. C. Berston to Mary Houran, and was taken by Cornelius Houran for the purpose, as he testified, of securing the estate of Michael Houran the payment of the amount due the Houran estate from the Schiels.. This amount was $2,433.94, and contained charges made for materials furnished the Schiels on different buildings, including buildings other than the insured premises. It is the claim of both of the executors of the estate that they did not know of the existence of the deed prior to the date of the fire, which occurred June 21, 1911, and damaged the insured premises to the extent of $1,280. This suit was brought by the plaintiff as assignee of Neil J. Berston, Charles and Mary Schiel, and the executors of the estate of Michael E. Houran, deceased. Plaintiff having recovered a judgment in the sum of $1,360, the cause was removed to this court by writ of error.
It is the claim of the defendant that, the policy having named Neil J. Berston as the insured, the contract is solely with him, and the loss payable clause merely constitutes Michael E. Houran and Mary Schiel appointees of the insured.
The case of Jaskulski v. Insurance Co., 131 Mich. 603 (92 N. W. 98), is called to our attention. In that case the policy was issued to Joseph Navrot, the owner of the land. One Eckert made a loan to Navrot, and to secure it had taken a mortgage upon the insured property. They were both present when the policy was issued to Navrot. Indorsed on the policy was:
“Loss, if any, payable to Frank C. Eckert, mortgagee, as his interest may appear.”
After Navrot’s death the insured property was sold by order of the probate court and conveyed to the plaintiff. Eckert foreclosed his mortgage, and the plaintiff redeemed, and Eckert assigned his interest in the policy to the plaintiff. Navrot’s widow also quitclaimed to the plaintiff. No notice of the sale or transfer was given to the defendant company. The plaintiff claimed the right to recover on the policy on the ground that it was, in fact, issued for the benefit of Eckert, the payee of the policy, and that he thereby had a contract with the defendant company. This court held that, under these circumstances, the contract of insurance was made with Navrot alone, and he alone could bring suit upon it. An examination of the record in that case further discloses that the application for insurance was made and signed by Navrot alone. The policy of insurance covered other property than that covered by the Eckert mortgage. It was not claimed that Eckert negotiated the insurance, or that he paid any assessment during Navrot’s lifetime, and it was very properly held that the mere fact that he held possession of the policy, and that it contained the loss payable clause above set forth, did not make him a contracting- party.
The instant case presents an entirely different situation. It is undisputed that Neil J. Berston had no interest whatever in the property and knew nothing about the insurance. The parties who entered into the contract of insurance were Michael E. Houran and Mary Schiel, each having an insurable interest, as insured, and the defendant company, represented by Mr. Henderson its agent, as insurer. It is said in the opinion of Mr. Justice Ostrander that neither Houran nor Mrs. Schiel disclosed to the agent the real interest which each had in the premises, and that most material facts were concealed, and that this is undisputed in the record. It does not seem to me that a fair reading of the record would justify the conclusion that Henderson, the agent of the company, did not know the exact relations of the .parties and their interest in the property at the time the contract of insurance was made. On cross-examination he testified as to what occurred at the time this contract was made, as follows:
“Q. Now, when Mr. Houran and Mrs. Schiel came in, you say Mr. Houran stated to you he wanted the policy changed?
“A. Yes, sir.
“Q. He stated to you what was the condition of the title, did he not?
“A. Yes, sir.
“Q. He stated to you he was selling lumber to these parties, did he not?
“A. Yes, sir.
“Q. Mrs. Schiel stated the same thing to you, didn’t she?
“A. Why, yes, sir; it was understood he was.
“Q. The three of you were there in the office together, were you not?
“A. Yes, sir.
“Q. All three engaged in the conversation?
“A. Yes, sir.
“Q. And they wanted you to draw a policy that would protect Mr. Houran and Mrs. Schiel and her husband, did they not?
“A. Yes, sir; I suppose that was the idea.
“Q. That was the idea. You drew that policy in accordance — you drew that policy as you supposed, to protect those parties, did you not?
“A. Yes, sir.”
It is apparent from the contract of insurance itself that there was no intention on the part of the con tracting parties to insure Carrie E. C. Berston or Neil J. Berston. The premium was paid by Houran, and he had possession of-the policy, and the placing of Mr. Berston’s name in the policy did not give him any right or interest to any portion of the proceeds arising from any loss secured by the policy. As was said by Justice Champlin in Balen v. Insurance Co., 67 Mich. 179 (34 N. W. 654):
“It was unimportant, under the facts of this case, whose name was inserted in the policy as owner. Whosever name was inserted stood there merely as a nominal party, without any beneficial interest in the insurance secured thereby.”
See 1 Cooley’s Briefs on Insurance, p. 793; Traders’ Ins. Co. v. Pacaud, 150 Ill. 245 (37 N. E. 460, 41 Am. St. Rep. 355); Hopkins Manfg. Co. v. Insurance Co., 48 Mich. 148 (11 N. W. 846).
It is further contended that there was such a change of interest in the subject of insurance without the consent of the defendant company that the policy by its terms became void. The Schiels, by paying Mrs. Berston the amount they owed on the contract, simply increased their interest in the property. It cannot be said that the risk to the insurer was increased by this transaction. Foiles v. Insurance Co., 175 Mich. 716 (141 N. W. 879).
The taking of the deed from Mrs. Berston- to Mary Houran raises another question. It was taken as security for indebtedness of the Schiels due on other property than the insured premises. It is claimed that this is such a material change of interest as to avoid the policy. Knowledge -of this deed was denied, however, by the executors of the estate, and Cornelius Houran testified that he told neither of them about it. The question of fact thus raised was submitted to the jury by the trial court as follows:
“Now, if you find by a preponderance of evidence that Mr. Stockton or Mrs. Houran, either of them, authorized the making or accepting of the deed from Mrs. Berston or Mrs. Houran, or if either of them knew that said deed was given before the fire, then plaintiff cannot recover.”
The court further charged the jury that:
“If you find that Cornelius Houran had general management of the business affairs of the Houran estate at the time of the delivery of the Berston deed, and that either executor had knowledge of such management or consented thereto, then the Houran estate is bound by Cornelius’ acts.”
We are satisfied from reading the testimony that these controverted questions of fact were properly submitted to the jury.
We have examined the other assignments of error, but we find no reversible error in the record.
The judgment is affirmed.
McAlvay, C. J., and Brooke and Moore, JJ., concurred with Kuhn, J. | [
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Stone, J.
In this action the plaintiff seeks to recover damages for personal injuries sustained by him, by reason of the defendant’s alleged unlawful conduct in wilfully driving his horse upon, or so near, the plaintiff in a public highway as to cause the plaintiff to fall, or to be thrown with great force and violence, upon the ground.
The declaration contains three counts. The first two counts are for an assault and battery on the plaintiff, the first charging that, with force and arms, the defendant, on September 9, 1912, did with great force and violence drive a horse and carriage “toward and upon the said plaintiff, and by means of the premises, he, the said plaintiff, was then and there cast and thrown with great force and violence upon the ground,” by reason whereof the plaintiff was greatly bruised, hurt, and wounded, and has suffered great bodily and mental distress, etc.
The second count is very similar to the first, except that it charges that the defendant drove the horse “with great force and violence upon and against the above-named plaintiff, who was then and there lawfully walking upon the said highway; by means whereof the said plaintiff was then and there thrown and pushed * * * from out of said highway and into a ditch along the side thereof.”
The third count charges the defendant with the negligent driving of said horse. After stating that the plaintiff was walking upon the grass at the left side of the main traveled part of the highway and using due care in his conduct to protect himself from injury and collision, it alleges as follows:
“That said defendant did not then and there drive along said highway at a reasonable rate of speed, and did not keep his horse under control, and did not use reasonable care in the driving of said- horse and carriage on said highway, * * * but did wilfully, wantonly, recklessly, maliciously, and with gross negligence, drive into and against said plaintiff, and said defendant did at the aforesaid time and place drive the horse at an excessive rate of speed, to wit, 15 miles per hour, and did wantonly, wilfully, maliciously, and intentionally, and with gross negligence, and in violation of the duty of defendant, turn said horse and carriage from the main traveled part of the highway toward said plaintiff” — •
When the plaintiff was then at a point one rod in front of defendant, and because of that fact plaintiff was compelled to move quickly to get out of the way of said horse, and was compelled to step back to get out of the way, and in so doing stepped against a raise of ground which was along said highway, and was thrown backward upon his back and shoulder and suffered great injury, etc.
The plea was the general issue.
The parties are farmers living on and owning farms nearly opposite from each other, where they have lived for some years. The plaintiff was 71 years old and the defendant about 44 at the time alleged.
Upon the trial it appeared that on the day in question, at about 8:30 o’clock a. m., the weather being clear and bright, the plaintiff was walking east along the highway. He testified that he was walking on the sod about six feet north of the edge thereof, or a distance of some eight feet from the north wagon track, when he met the defendant; that the defendant had been driving in the track, but turned out when about ten feet away and drove right upon or onto the plaintiff, so that the horse’s breath came in his face; and that he jumped and fell, sustaining the injuries complained of. The plaintiff does not claim that he was actually hit by the horse, but that, owing to the sudden driving of the horse so near to him, he jumped aside to save himself from being injured by the horse, and fell. No other person save the parties was present, except defendant’s little girl, who was not sworn. The plaintiff testified to defendant’s manner, and that he had an angry expression on his face; that defendant did not stop his horse, but pulled him back into the track and drove on.
Defendant, in his testimony, denied having made any assault whatever upon the plaintiff, and denied that he drove his horse towards or against the plaintiff, but testified that as the horse was nearly opposite the plaintiff it shied out of the road towards the plaintiff by reason of a bunch of hay at the side of the road, at which time defendant testified plaintiff stopped and faced south and looked at him as he drove by.
A reference to the record will show that there was a sharp conflict in the evidence upon every essential point claimed by the plaintiff. Upon the trial the plaintiff attempted to prove certain conduct of defendant tending to show malice and ill will on September 7th, two days before the alleged injury, at defendant’s house, where plaintiff had gone to notify defendant to perform labor on the highway, the plaintiff being an overseer of highways at that time. The plaintiff also attempted to show certain conduct of the defendant in December, 1911, at which time it was claimed that the defendant drove the plaintiff into a water hole by turning his horse near to or upon him.
It having appeared by the opening statement of counsel that on September 7th it was not claimed that defendant made any threats, the court sustained the objection made by the defendant to this offered testimony, to which plaintiff’s counsel duly excepted. An examination of the record shows that the court intimated to counsel that it would, for the time being, sustain the objection, but would consider the matter further. It appears that upon cross-examination of the defendant the whole subject-matter was gone into, and upon rebuttal this testimony which had been excluded was received, but counsel for the appellant claims that the testimony came in too late to have its proper effect upon the jury, and that the weight of the same had been destroyed by the former adverse ruling.
The testimony of the defendant tending to show that the horse had shied by reason of there having been some hay at the side of the road was objected to by plaintiff’s counsel under the pleadings; it being the claim of the plaintiff that it was an affirmative defense, and could not be shown under the general issue. The court ruled otherwise, and plaintiff excepted.
Further complaint is made by appellant upon what is termed the “misconduct of counsel.” Upon cross-examination of the plaintiff the following question was asked:
“Q. You employed counsel in this case, did you not, under a contract by which they were to receive 50 per cent, of the amount recovered?
“Plaintiff’s Counsel: I object to that.
“The Court: Objection sustained.
“Plaintiff’s Counsel: And I take an exception to the asking of it.
“Defendant’s Counsel: It isn’t error to ask a question when the court, in its discretion, can admit it.
“Plaintiff’s Counsel: I take an exception to the remarks of counsel.”
The record also shows that one of plaintiff’s counsel, being the attorney of record, testified in the case as a witness on behalf of the plaintiff.
At the close of the evidence the first and second counts in the declaration were stricken out, and the case was submitted to the jury upon the third count. We find no assignment of error upon this ruling.
Plaintiff requested the court to charge the jury to the effect that, although the plaintiff may have been guilty of contributory negligence, yet, if they should find that defendant was also guilty of wilful, wanton, and reckless conduct, that the negligence of the plaintiff would not bar his right to recover.
Error is assigned upon a portion of the following excerpt from the charge of the court:
“In the first place, was the plaintiff in this case injured by negligence of the defendant, Henry Schroeder, without any negligence on the part of the plaintiff ? * * * In this case, if the defendant was going along there in a careful, prudent manner, and as he came opposite Mr. Luekhurst his horse was scared and he exercised all the due care and prudence which a man of ordinary prudence would have done under the same circumstances, and yet, notwithstanding that, this horse shied and came so near Mr. Luekhurst that Mr. Luekhurst was compelled or did step aside, and his injury was received by that reason, then the defendant would not be guilty of any negligence, for the reason that he had done all that a careful, prudent person would have done under like circumstances. But if, on the other hand, in going along there, he saw and observed Mr. Luekhurst, and he did not use the care which a person would have exercised — that is, an ordinary careful and prudent person would have exercised — under the same circumstances, and 'by reason tnereof, and without any negligence on the part of Mr. Luckhurst, and (I say) by reason thereof his horse came towards Mr. Luckhurst, and Mr. Luckhurst, in order to avoid him, was compelled to get out of the way, and he received injuries by reason thereof, then defendant would be liable for such damages as resulted on account of his negligence. Or if you should find that Mr. Schroeder wilfully drove the horse out one side there, for the purpose of driving it upon Mr. Luckhurst or driving it near him, and you find that Mr. Luckhurst, acting in a careful, prudent manner, and without any negligence on his part, stepped one side and fell down and received injuries, then he would be entitled to recover. So the question, gentlemen, after all, depends upon the negligence of Mr. Schroeder and lack of negligence on the part of Mr. Luckhurst. If Mr. Schroeder was guilty of negligence, as I have stated to you, and Mr. Luckhurst was not guilty of any negligence, and Mr. Luckhurst received injuries by reason of the negligence of Mr. Schroeder, then plaintiff is entitled to recover. But if it was an accident upon the part of the horse of Mr. Schroeder being scared, and Mr. Schroeder used ordinary care in the driving his horse, such as a careful, prudent man would have used under the samé circumstances, then plaintiff cannot recover.”
The jury returned a verdict for the defendant, and a judgment was entered accordingly. The plaintiff moved for a new trial:
Because the verdict therein was against the great weight of the evidence; because the verdict rendered by the jury was contrary to the charge of the court; because of newly discovered evidence of certain witnesses named in the motion; because of the refusal of the court to give plaintiff’s requests to charge; and because the court charged the jury that, although they might find that the defendant was guilty of wilful, intentional, and malicious driving into the plaintiff, said plaintiff could not recover, unless he was free from contributory negligence.
The court denied the motion, filing reasons therefor, to which denial plaintiff duly excepted, and he has brought the case here upon writ of error.
(1) The first group of assignments of error deal with the alleged error in the rulings of the court in rejecting testimony tending to show malice and ill feeling on the part of the defendant towards the plaintiff.
(2) Proving affirmative befense under the general issue. This assignment alleges error in permitting the defendant to .show that the cause of his horse shying and running onto the plaintiff was because of a bunch of hay in the highway.
(3) Misconduct of counsel. This assignment refers to conduct of defendant’s counsel in asking plaintiff on the trial if he was not under contract to pay his attorneys one-half of all he recovered.
(4) Refusing to give plaintiff’s requests to charge as above stated.
(5) Errors in the charge of the court above referred to.
(6) Denial of the motion for a new trial, especially because of the refusal to grant plaintiff’s motion for a new trial on the ground of newly discovered evidence.
1. Taking these questions up in the order in which they are presented by counsel, we may ask: Should the case be reversed because the court first excluded testimony offered by the plaintiff to show that on September 7th — two days before the alleged trespass— defendant was guilty of conduct indicative of malicious motives against the plaintiff; and, also, that in December, 1911, the defendant wilfully and mali ciously ran into the plaintiff on the highway with his horse and buggy and drove him into a water hole? It will be borne in mind that later in the trial of the case this evidence was received, and was submitted to the jury. While we see no good reason for the ruling of the trial court in excluding this evidence in the first instance, yet, under our decisions, we must hold that, it having been admitted at a later stage of the trial, the ruling was at most harmless error. Chambers v. Hill, 34 Mich. 523; Lamb v. Lippincott, 115 Mich. 611 (73 N. W. 887); Pierson v. Railroad Co., 149 Mich. 167 (112 N. W. 923).
'2. It is claimed that the court erred in admitting evidence under the general issue offered by the defendant tending to show that his horse was scared at a bunch of hay in the road and shied towards plaintiff. It is said that this was an affirmative defense. In this contention we cannot agree with plaintiff’s counsel. The first two counts of the declaration, which were standing when this ruling was made, charged that defendant, with force and arms, drove his horse upon the plaintiff and injured him. It was competent for the defendant under the general issue to show that he did not wilfully drive his horse upon the plaintiff, but that his horse became scared and shied out of the road. Instead of being an affirmative defense, it was an attempt to show that the defendant was not guilty of the trespass charged. We find no error in this ruling of the court.
3. This brings us to alleged misconduct of counsel. It will be borne in mind that the court sustained the objection of plaintiff’s counsel, and ruled that defendant could not show that plaintiff was under contract to pay his counsel 50 per cent, of the amount recovered. The exception seems to have been taken to the asking of the question as misconduct of counsel. It should be noted that the plaintiff’s attorney of record was a witness for the plaintiff upon-a material matter on the trial of the case. We think that, under such circumstances, it was competent for the defendant' to show that plaintiff’s said counsel was interested in the result of the suit as bearing upon his credibility as a witness, and that it would not have been error had the court permitted the question to be answered. We do not think that plaintiff was injured by the ruling of the court, nor do we think that the defendant’s counsel was guilty of misconduct in asking the question under the circumstances as disclosed in this record.
4. It is claimed that the court erred in not charg-. ing the jury that, although the plaintiff may have been guilty of contributory negligence, yet, if the jury should find that defendant was also guilty of wilful, wanton, and reckless conduct, that the negligence of the plaintiff would not be a bar to his right to recover. A careful reading of the charge will show that the court attempted to cover different phases of the case claimed to have been made by plaintiff under the third count in the declaration. We find that the court did charge the jury in the following language:
“I charge you that the plaintiff would have a perfect right to walk' in the part of the highway on the north side of the beaten part of the track, and it would make no difference whether he was on the left side or the right side of the highway, and that the defendant had a right to drive his horse along the highway, but if the defendant at that time, seeing the plaintiff, turned his horse out for the purpose of driving it upon him, or for the purpose of driving it near.him, so it would compel or might compel the plaintiff to step aside, and if he did so, and the plaintiff did step aside, and in doing so fell down and was injured, then plaintiff would be entitled to recover.”
Here we find an explicit charge by the court that the plaintiff might recover in case of the wilful or wanton assault upon him by the defendant, without reference to the contributory negligence of the plaintiff. We think this gave the substance of the plaintiff’s requests upon that branch of the case.
5. Did the court err in that portion of its charge above quoted? In this connection, it is proper for us to examine some of the plaintiff’s requests to charge. By their eighth request plaintiff’s counsel had requested the court to charge the jury as follows:
“I instruct you that the burden of proof is on the plaintiff, not only to show negligence and misconduct on the part of the defendant, but also to show ordinary-care and diligence on his own part, and if you should find that the plaintiff did not use ordinary care and diligence, and that the want of same contributed to the injury, and that defendant was guilty of no more than ordinary negligence, you should return a verdict of no cause of action.”
“Tenth. I instruct you as to the distinction between ordinary and gross negligence as follows: Ordinary negligence is a disregard of those rules of conduct which would govern men of ordinary care and prudence. It is not required of a man that he should use the highest degree of care, but he should always be as careful as it is possible for him to be. It is incumbent upon him only to be as careful as men of ordinary prudence and judgment would be. Was the defendant lacking in this regard ? Were the acts and conduct of Henry Schroeder, the defendant, such as a man of ordinary care, prudence, judgment, and caution would not have exercised under the same circumstances. Now, if he was not as careful as a man of ordinary prudence would have been under the same surround-' ings, then he would be guilty simply of what the law calls ordinary negligence; and if his conduct was more than this, then the next inquiry would be whether the plaintiff was himself free from negligence which contributed to the injury. That is, would the injury have been brought about if the plaintiff had been himself as careful as men of ordinary prudence would have been under the same circumstances ? The plaintiff was not obliged to use the highest degree of care to avoid injury to himself. He was only required to use that degree of prudence and caution which men of ordinary prudence and caution would use under precisely or very similar circumstances, as you may find them to be from the testimony in this case.”
It seems, therefore, that plaintiff, in his requests to charge, introduced the subject of contributory negligence. The reading of these requests shows that they are substantially the language used by the court in its charge to the jury on the subject of contributory negligence. The difficulty arises in the mingling of the degrees of negligence; and if there is any apparent confusion in the charge, we think that plaintiff’s counsel are responsible for it.
We think, however, that it clearly appears that the court charged the jury, in substance, that if the defendant was guilty of gross negligence by the wilful driving of his horse upon or against the plaintiff, that there might be recovery, notwithstanding the contributory negligence of the plaintiff, and we think the jury must have so understood the charge. We find no error here of which the plaintiff can complain.
6. Questions raised upon the motion for a new trial. We have examined the record with care, and are unable to say that the verdict of the jury was either against the great weight of the evidence, or that it was contrary to the charge of the court.
We have examined the affidavits in support of the claim of newly discovered evidence. Upon the trial of the case the defendant’s wife had testified that she, while standing near defendant’s house, saw plaintiff and defendant at the time of the alleged injury, and gave testimony tending to show that she saw the transaction, and her testimony corroborated that of the defendant. After the trial the plaintiff had three persons make affidavit that they had experimented nearly a year after the transaction, by standing where it was claimed defendant’s wife stood, and that they were unable, by reason of bushes and other obstructions, to see the place where it was claimed the parties met. Not only did this alleged newly discovered evidence tend to impeach defendant’s wife, but the affidavits of the three persons were contradicted by affidavits of 11 other persons, who claimed to have experimented in the same manner, thus corroborating defendant’s wife in her testimony. Ordinarily, the court will not grant a. new trial on the ground of newly discovered evidence where that evidence is for the purpose of impeachment. Spray v. Ayotte, 161 Mich. 593-595 (126 N. W. 630). And we should also add that the matter of granting a new trial on the ground of newly discovered evidence was largely a matter of discretion for the trial court. Hammond v. Pullman, 129 Mich. 567 (89 N. W. 358). We cannot say that the newly discovered evidence, in the light of this record, would probably cause a different result to be reached on another trial, and we think the court did not err in denying the motion. Morin v. Robarge, 132 Mich. 337 (93 N. W. 886).
We find no error in the record of which plaintiff can complain, and the judgment of the circuit court is affirmed.
McAlvay, C. J., and Brooke, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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McAlvay, C. J.
This suit was instituted by plaintiff, as receiver of the Albion National Bank, to recover against defendant on two promissory notes found by him among the assets of said bank after the comptroller of the currency had taken possession. These notes were dated March 27, 1906, each for the sum of $1,500, with interest at 6 per cent., payable to the-Albion National Bank six months after date. The case was tried before the court with a jury, and at the close of taking the testimony a verdict was directed to be entered for the full amount due in favor of the plaintiff, upon which a judgment was duly entered. Defendant asks for a reversal on account of errors assigned.
The facts necessary to be stated are as follows: The Albion National Bank was the successor of the First National Bank of Albion, whose charter expired by limitation January, 1905. The Cook Manufacturing Company was the successor of the Albion Implement & Windmill Company, which latter company had been a customer of said First National Bank of Albion. The Cook Manufacturing Company, above mentioned, was organized in 1901 or 1902, and was officered by the same individuals who were officers and directors of the First National Bank of Albion, being the same individuals who afterwards became the officers and directors of the Albion National Bank when it was organized in 1905. The Cook Manufacturing Company was a customer of both these banks. It appears that it was not a successful business ven ture, as it ran behind altogether, during the ten years it operated, from 1901 to 1911, from $140,000 to $1.60,000, and each year its losses averaged from $10,000 to $12,000.
The notes in question, upon which suit has been brought by the receiver, are renewals of a note given by defendant to the First National Bank of Albion, July 28, 1903, for $3,000. It appears that before this $3,000 note was given other accommodation notes of defendant had been discounted in the transactions between the First National Bank of Albion and the Cook Manufacturing Company, but whether these were paid or renewed and whether any part of the amounts such notes represented entered into this $3,000 note it is impossible to say from the record. The execution of the notes in suit is not denied by defendant. At the time they were given he was, and for several years had been, in the employment of the Cook Manufacturing Company, of which he at one time was a director. These notes were first given by defendant at the request of Mr. Dearing, the president of the company, as accommodation paper for the benefit of the company and were so received by the bank. Upon the backs of the notes in suit appeared indorsements, of payments of several years’ interest. It was admitted on the trial that these payments had been made by the Cook Manufacturing Company, and not by defendant. Mr. Dearing, who was president of the Cook Manufacturing Company, was at the same time cashier of the Albion National Bank, and had also been cashier of the First National Bank of Albion during its existence.
The president of the Albion National Bank, who had also been president of the First National Bank of Albion during the last ten years of its existence, testified that Henry M. Dearing was cashier of the Albion National Bank, and also of the First National Bank of Albion, during these transactions with defendants, and that, as a matter of fact, the board of directors allowed the cashier to run the whole institution; that is, they “acquiesced.” He further said:
“In a sense, Mr. Dearing had general control of the affairs of the bank and the board of directors allowed him that control, and he was exercising that general management and control of the bank’s affairs during 1903 and 1906. The directors usually acquiesced in what he did without first taking any formal action as to what to do.”
Defendant claimed that when he first gave this accommodation paper at the request of the president of the company, at which time he was employed by it as a salesman and collector, he was then told by the president that the company was overdrawn at the bank, and he desired this paper as a matter of accommodation to take care temporarily, of overdrafts,' and it would be taken up in a short time; that the company had big prospects; that the notes were renewed at the request of . the same officer, who stated that the business of the company was getting better every day. He insists that these statements so made at the time he gave and renewed these notes, by which he was induced to do so, were false and fraudulent.
The errors assigned and relied upon relate to the exclusion by the court of testimony offered on behalf of defendant, and also to the action of the court in instructing a verdict for plaintiff.
In this case the defendant, under the general issue, gave extended notice to the effect that these notes in suit were given as renewals of other notes of like amount given by him as accommodation paper for the benefit of the Cook Manufacturing Company, and for a pre-existing indebtedness owing by said company to said bank, and that they were without consideration; that said notes were procured by the fraud of the president of the Cook Manufacturing Company. The following brief excerpts from such notice will indicate the fraud charged:
“That he represented to said defendant at the time of making said original notes and the notes described in plaintiff’s declaration that they would be taken up and satisfied by the Cook Manufacturing Company at or prior to their maturity.”
“That said notes were not enforceable, and that he should not be called upon to pay them.”
“That the giving thereof was temporary accommodation to,the Cook Manufacturing Company to cover an overdraft of said company at said Albion National Bank.”
“That said notes would be taken care of by the paper of customers of the Cook Manufacturing Company.”
“That at the time of giving the renewal notes described in plaintiff’s declaration this defendant was induced to give them upon the representation that the Cook Manufacturing Company was doing better and would soon be in shape to take care of said renewals, and promised defendant that they would very soon be taken care of, and that defendant would never-be called upon to pay them.”
It is undisputed that the only person who made these representations to defendant was the president of the Cook Manufacturing Company, who made the representations in that capacity on behalf of the company, for the benefit of the company. The record shows that the original note was presented to the bank for discount, and was discounted for the accommodation of the Cook Manufacturing Company, and that the company was credited with that amount in reduction of an overdraft. If this were all that is claimed on the part of defendant for this transaction, it would appear to be the ordinary transaction of a concern in need of funds, which relieved such need by securing accommodation paper. It is the contention of defend ant, however, that because the president of the Cook Manufacturing Company was at the same time the cashier of the bank, his knowledge and statements made as such president must be imputed to the said bank. It is further contended by defendant that the bank was not a holder of the note for value, for the reason that it had been discounted by the bank for an antecedent debt due it from the Cook Manufacturing Company, and therefore the bank had not parted with any actual consideration.
We desire to call attention at this point to the notice of special defense given by defendant under his plea, from which we have already freely quoted. The statements of fact made in such notice, under Circuit Court Kule 7 (e), are admissions made by defendant which need not be proved by plaintiff. Julius Hermann & Co. v. People’s Department Store, 160 Mich. 224 (125 N. W. 49).
From this notice we find that defendant admits that the notes in suit were given by him as renewals of other notes of like amount as accommodation paper for the benefit of the Cook Manufacturing Company, for a pre-existing indebtedness owing by said company to the bank, which notes he was induced to give at the solicitation and request of the president of said company upon the representation that it was a temporary accommodation to the company to cover an overdraft it had at the bank, and the record shows that the first of these accommodation notes was presented to and discounted at the bank and credit given, which reduced the overdraft to the amount of such discount.
Defendant contends that, because the officers and directors of the First National Bank of Albion and its successor, the Albion National Bank, were the officers and directors of the Cook Manufacturing Corn pany, the bank was charged with notice of the fraud claimed to have been perpetrated upon defendant. In view of the admissions made by defendant and the undisputed record, can it be said that the court was in error in instructing a verdict on behalf of the plaintiff, and also in refusing to allow defendant to introduce evidence in support of the proposition contended for? As-has already been stated, he gave these accommodation notes to be discounted for a certain purpose, at the request of, and for the benefit of, the Cook Manufacturing Company, and they were applied to the purpose for which they were given; at least, the original note was, and the others are admittedly renewals of the first note. The agreement authorized the discount of the note, and the fact that it was known to the cashier of the bank that the paper had been drawn for accommodation would not prevent the bank which discounted it for value, by giving credit to the company for the amount of the discount upon its account, from recovering thereon. In a case where this question was involved, the Supreme Court of the United States has so held. In that case, as in the instant case, the note was drawn directly to the bank. It was for the accommodation of one of its directors for the purpose of reducing an overdraft. The note was discounted by the bank, and credit given in reduction of the overdraft. Israel v. Gale, 174 U. S. 391 (19 Sup. Ct. 768).
It appeared that the notes sued upon had payments of interest for several years indorsed thereon. Defendant denied that he had made these payments of interest, and sought to show that the indorsements on these notes were actually made by checks from the Cook Manufacturing Company. Earlier in the record it was admitted by counsel for plaintiff, as already stated, that these payments on the notes were made by the Cook Manufacturing Company. This left the matter undisputed, and, upon any view, the fact that the interest was paid by the company for which the accommodation paper' was made was correctly held by the court to be immaterial.
The other errors relied upon by defendant which need be considered refer to the contention, already stated, that the close relations between these banks and the Cook Manufacturing Company imported knowledge of the fraudulent representations which defendant claims induced him to give these accommodation notes.
Our conclusion is that, admitting the representations to have been made to defendant, as claimed, by the president of the Cook Manufacturing Company at the time the original note was given and later, when renewals were given, it cannot be held that they amount to false and fraudulent representations of fact; nor, from a careful examination of the proof offered on the part of defendant to show the same, which was excluded by the court, in view of the admissions of defendant, do we find it was material to the issue joined in the case.
This court, therefore, holds that the trial court was not in error in excluding the testimony offered by defendant or in directing a verdict for the plaintiff.
The judgment is affirmed.
Brooke, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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Steere, J.
Plaintiff, a young man residing in a rural neighborhood in the township of Dover, in Clare county, brought this action in Saginaw county, against defendant, a corporation located and dealing in automobiles in the city of Saginaw, for the purpose of recovering from the latter $300 paid it for a Ford automobile and $75 later paid as the difference in exchanging said Ford for a Buick runabout. The contracts of purchase and exchange for these cars were made and money paid during plaintiff’s minority. On coming of age he disaffirmed the contracts, returned the Buick car, and demanded refund of the $375. His demand being refused, this action was instituted. On the trial of the case before a jury in the circuit court a verdict and judgment were rendered in his favor for $375, with interest.
It appears undisputed that defendant had knowledge at the time of these transactions that plaintiff was a minor; that plaintiff, personally negotiated for the cars; and that he either personally paid to defendant, or sent it by his brother, the money sought to be recovered. In defense it is urged that the contracts were made with the knowledge and consent of, and, in legal effect, with, Richard Emerson, plaintiff’s guardian, who furnished to plaintiff money to pay for the cars.
The court submitted to the jury, under instructions as to the legal relations and status of the parties, the question of whether the contracts were made with plaintiff or his guardian. This is assigned as error, and it is urged that, under the undisputed facts, the court should have held the contract to be that of the guardian, and directed a verdict for defendant.
At the time of these transactions plaintiff was a minor, living in the country seven miles from Clare, with his brothers and sisters, on a farm rented by an elder brother. Emerson, the guardian, was a neighboring farmer who had been appointed guardian some years before, on the death of plaintiff’s mother. Plaintiff left school when 16 years of age, is not shown to have pursued any calling, and apparently was not self-supporting, as he states his guardian furnished him money .to keep himself — “just a little money in order to get along with” — and the guardian testified that he looked after his wants and supplied him with “necessaries and such things.” The extent of his patrimony is not disclosed, but it was apparently limited; his guardian having enjoined upon him “not to get rid of any money if he could help it, for he didn’t have it to spare.”
Though his guardian advised to the contrary, plaintiff conceived and pursued the project of securing for himself an automobile; his reason therefore being:
“My brother had a car, and he thought I ought to have a car; that was about the size of it.”
In harmony with this thought, on May 24, 1913, he and his brother journeyed to Saginaw for the purpose of investigating the opportunities there for supplying this want. The guardian knew of their mission, and furnished plaintiff $10 for expenses, but testified that he deprecated the venture, and did not know Saginaw was their objective point. They there visited defendant’s garage, where they were offered a second-hand Ford car, which plaintiff finally purchased at an agreed price of $300. While negotiating he informed the salesman, Mr. Black, who made in quiry as to his ability to pay, that he would pay $5 down to secure the car; that he was a minor under guardianship, and on his return home would get the rest of the purchase price and send it to complete the payment. This being agreed to, a regular retail car contract for the purchase running to plaintiff was filled out and signed by him, indorsed: “Accepted. Buick Motor Company, Black, Manager.” On his return home plaintiff obtained the money to make the deferred payment from his guardian, and sent his brother to Saginaw with it, who paid the balance of $295 to defendant and drove the car home for plaintiff. After using the Ford for a short time, plaintiff concluded that he preferred a Buick, and wrote defendant inquiring if he could make an exchange with them. Receiving an encouraging reply, with the suggestion that he visit Saginaw, as they had several second-hand Buicks on hand, he went to Saginaw with his Ford car, taking along an acquaintance who could drive, and on June 22, 1913, exchanged his Ford for a Buick roadster, paying $75 additional therefor. For this car he was given and signed an accepted retail car contract^ as before. These negotiations were had with, and the contract was prepared by, Black, the same salesman or manager with whom he had previously dealt. Plaintiff did not have with him sufficient money to pay the additional $75 required in making the exchange. At the suggestion of Black, the guardian was reached by long-distance telephone, and consented to send the money, which he did, plaintiff receiving it the following day; the chief difference as to what occurred being whether he told plaintiff or Black that he would send it. Black put in the call for him, and testifies that when he responded:
“I said to Mr. Emerson that, ‘Walter is down here, and that he has found what he says suits him in the model 14 car, and the price is $75 difference, and do you want him to have it?’ And he said, ‘Yes; he may as well have it if- it suits and he wants it.’ And I said, ‘Will you send the $75?’ He said, ‘Yes.’ Then I said, ‘Do you want to talk with Walter?’ And he said, ‘Yes; I will.’”
Of this and what led up to it Emerson testifies:
“Well, he (Walter) showed me a letter he had got from these parties before that time he came down here, and the next I heard from him was the telephone message. Mr. Black was the man that telephoned to me. He said Walter was there and wanted to talk with me.
“Q. Did Mr. Black tell you what Walter wanted to talk with you about?
“A. He wanted to talk with me about the money.
“Q. Did Mr. Black tell you the difference in the price of the cars?
“A. He did not. Walter told me over the phone. He told me there was a Buick car down there that he thought was what he wanted, and that he wanted — it was $75 difference. That is about all, generally, that he said. He asked me if I could send the money down, and I said I could. He asked me at what time, and I told him. This was on Sunday, and I told him I would send it down on the following day.”
Plaintiff testified that Black did the talking over the telephone with Emerson, that he did not remember doing so, and “if I done any I done a very little of it. I am not sure whether I did or not. There was so much dickering I don’t know.” Ryan, the young man who accompanied plaintiff from Clare and was present when the deal was made, testified that Black put in the call for Emerson, “and he got him, and he told him Walter was down here, and Walter saw a car that he wanted, and Mr. Black asked Mr. Emerson if lie wanted to talk with Walter, and he said, ‘Yes;’ at least Walter talked with him and asked him about money.” These negotiations were had and an agreement reached on Sunday. Plaintiff then gave Black $20, and waited at the hotel until the next day, when he received the promised money from his guardian, paid the balance on the Buick, and, with Ryan driving it, returned home.
Plaintiff became 21 years of age on July 26, 1913, and on August 4th following asserted his newly acquired manhood by disaffirming these contracts, returning the Buick, and demanding that the money he had paid be.refunded. He sent the car back by his guardian, accompanied by an attorney, who, on return of the property, made proper tender and demand for plaintiff. His own testimony indicates that this guardian needed a guardian. The automobiles were not necessaries, and could scarcely be counted as luxuries to plaintiff, nor were they befitting his rank, estate, or station in life. While Black was agreeable to dealing with plaintiff, and had no hesitation in making the sales if the money was forthcoming, the views expressed by him after the Buick was returned and the contract disaffirmed were in some respects appropriate. He testifies:
“I said to Mr. Emerson: ‘You ought to be arrested and sent to jail for spending this young man’s funds for automobiles in this way, when he isn’t fit to operate an automobile * * * new, good, second-hand, or any condition.’ ”
We need spend little time upon the question of plaintiff’s right to recover if the contracts were independently made by and with him. After reaching his majority one may disaffirm a contract made by him during infancy and recover what he paid or parted with pursuant to such contract, if he return what he received. 22 Cyc. p. 616. And it has been held that depreciation in value of. the property returned cannot even be shown to defeat or reduce recovery. On disaffirming the contract and returning the article purchased during infancy, the money paid thereon may be recovered, though the value of its use while the infant had it may exceed the payment made upon it. Whitcomb v. Joslyn, 51 Vt. 79 (31 Am. Rep. 678).
It is undisputed that both machines were paid for by plaintiff with his own money, which his guardian furnished him, knowing it would be so used, and that Black knew he was dealing with a minor who was getting his money from his guardian for that purpose. It is idle to say the contract of purchase and sale was with Emerson. The most that can be claimed of the talk over the telephone, as Black himself relates it, is a promise by Emerson, on the Sabbath, to send plaintiff sufficient money to enable him to make the payment of $75 on the Buick, “if it suits and he wants it,” and an acquiescence in, or implied approval of, the purchase, if plaintiff saw fit to consummate it. He did send the money. Had plaintiff concluded that the car did not suit him, and he did not want it, and used the money so sent him for something else, it would scarcely be contended that defendant could' recover from Emerson the balance due on the purchase price of the car by reason of his fulfilled promise to send the money to plaintiff. Emerson took no part in the negotiations or selection of these cars, and never saw them until they were brought to Clare county. He and Black were strangers; they never saw each other, and he was never at defendant’s place of business until after the second car was sold and delivered to plaintiff. The first communication between them was by telephone when plaintiff was negotiating a trade for the second car. All the usual transactions of purchase and sale were between plaintiff and defendant. The goods were exhibited and demonstrated to him; he was the “prospect” towards whom the salesman directed his efforts and whom he secured as a customer; plaintiff made the selection, closed the negotiations for the article purchased, paid for it, and received delivery of it. When he wrote defendant in reference to another deal for a Buick, he was answered, in part:
“We can show you our new Buick cars. Wish to assure you, however, that any deal we make with you and take in your Ford car, we will not take advantage of you; that we will make the price right and deal with you fairly. Come down to Saginaw and see us.”
Both the written contracts were with him and signed by him without reference to Emerson, and were prepared by Black, defendant’s agent, with full knowledge of existing conditions. The query which directed attention to Emerson was how or where plaintiff could raise the money to pay up and perform on his part the contracts he had made with defendant. Black’s evident concern was not over the fact that he was selling to a minor, but how the minor was going to get the money to pay.
Defendant’s most appealing contention is that the contracts made by plaintiff while a minor, with his guardian’s knowledge and consent, with funds furnished by the guardian from the ward’s estate for that purpose, and which would not have been made had not the guardian promised and furnished the money, are binding upon the quondam minor, and cannot be disaffirmed by him on reaching his majority. In support of this proposition May v. Webb, Kirby (Conn.) 287, is cited with the following quotation:
“If the ward’s contract is made with the guardian’s consent and approbation, it is binding on him personally, as if he had made it himself.”
Whether that which Emerson consented to and did and said in connection with this contract renders him liable and the contract binding on him personally is not the issue here. He is not a party to this action. The case cited does not hold that such conduct on the part of the guardian renders the contract binding on the ward or his estate to the exclusion of his right of disaffirmance on reaching majority. That case was decided in 1787, at a time when no provision was made for an official publication of decisions by the superior court of Connecticut, and Kirby, a member of the bar, who states that he “entered upon this business in a partial manner and for private use,” compiled and published the volume in which the case is found. What is there said is based upon a quoted special verdict of a jury, from which it appears that one Martha, then wife of May, had, in the years 1773 and 1774, while sole and an infant under 18 years of age, having a sufficient estate in her own right, with the consent and approbation of Ezekiel Williams, her guardian, purchased of Webb certain goods and articles, which were all necessaries, suitable to her rank and condition, and which were by Webb charged to said guardian, who afterwards refused to pay for them, whereupon, by his order and direction, they were charged to said Martha. The trial court held “that the contract, being for necessaries, might well be charged to the minor.” With this view the appellate court did not agree, and is reported as saying in part:
“A contract made by a minor, under the power of a guardian, and with his consent and approbation, is by law binding upon the guardian, and was so before the revision of the statute laws of this State, in the year 1784. * * * But if such construction may not fairly be given, and the law was otherwise than is here adjudged, still, in this case, it would be that a minor, without any guardian, by the consent and approbation of said Williams, took the articles charged, and with an understanding, on the part of the creditor, that they were to be charged to Williams, and, in fact, were so charged. Therefore, on either principle, Williams was the original debtor, and no discharge given to him can operate to fix a legal claim in favor of Webb upon said Martha.”
And yet the articles purchased by the infant were for necessaries.
A guardian is a trustee of the estate of his ward, bound by law to manage and conserve it in a manner most advantageous to the inheritance, and held, as a rule, to a rigid accountability in the execution of the trust, and liable for loss occasioned by improper or unlawful expenditure of the funds of his ward. He personally has no beneficial title in the ward’s estate, and, even for the ward, his expenditures must be limited to those things which are necessary, beneficial, and to the advantage of the child in the line of maintenance and education according to its estate and station in life.
The infant himself, though he request it, cannot legalize a breach of this trust nor bind himself or his estate during his minority by adopting it. The doctrine of estoppel cannot be applied to his conduct during minority.
Of the power of guardians to contract for their wards, it is stated as a general proposition that:
“Guardians cannot by their contracts bind either the person or estate of their wards. Such contracts bind the guardians personally, and recovery must be had in an action against them, not against the ward.” Woerner on Guardianship, p. 185.
The graphic views expressed by Black to Emerson, when the matter of disaffirmance of the contract first arose, touching the latter’s disregard of his duties as guardian, indicate a fairly clear comprehension on his part of the limits of such trusteeship. With his knowledge of the disabilities of the parties and understanding of the restricted capacity in which Emerson was acting, defendant was dealing with them, through Black, at its peril. In so far as these transactions relate to depleting plaintiff’s estate and his right to rescind, the principle is the same as though his guardian had furnished him funds from his own estate in the first instance with which to purchase an automobile when and where he chose, and he, with the money to pay, had gone to defendant and made the purchase, truthfully telling whose money it was and how he came by it. Black evidently dealt with and drew up the contracts to him under the mistaken theory that an executed contract with a minor was a finality; whereas the only difference between a minor asking relief on an executed contract of purchase and resisting relief asked on an executory contract is that in the former he must make restitution and return, if possible, that which he has purchased.
This is an action at law, and the only questions which can be considered are strict legal rights. Equitable issues are not involved. The recognized policy of courts, when called upon to act in such cases, is the strict and consistent enforcement of the principle involved in the presumption that minors are incapable of obligating themselves by contract, except for necessaries, etc., as an essential means of most effectually protecting them against mischievous consequences of their own incapacity and imprudence, and impositions by those older and wiser.
It might well be urged that in submitting the case to the jury the court went further in defendant’s favor than the law authorized.
The judgment is affirmed.
McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrandee, Bird, and Moree, JJ., concurred. | [
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] |
Bird, J.
Claimant’s husband, William Redfield, was an employee of the Dr. Denton Sleeping Garment Mills, at Centerville. On April 18th, while so employed, he received a serious injury to one of his hands, which resulted later in an amputation of three fingers. Gangrene set in, and 16 days thereafter he died. His widow petitioned the Industrial Accident Board to have her claim adjusted. Proofs were taken and an award made by an arbitration committee of $5.25 a week for 300 weeks. On appeal to the Industrial Accident Board the award was affirmed. The proceedings were then removed to this court by a writ of certiorari.
Exception is taken to the following findings of fact, it being claimed that the testimony does not support them:
“(15) At the time of the accident there was on each of the carding machines one or more signs reading, ‘Hands Off,’ such being placed on the machines by the manufacturer. These carding machines are so adjusted that they operate through a system of weights, and, when the weight reaches a certain point, the machine dumps down upon the apron; and, if a person coming near the machine should rest his hand upon it, such action would disturb the mechanism and cause the machine to dump, thereby seriously interfering with its operation. That the sign, ‘Hands Off,’ was put up, not as a warning against danger, but to prevent people from disturbing the operation of the machine and so cause it to dump.
“(16) There were also signs posted in the room reading, ‘Cleaning machinery while in motion positively forbidden.’ But this did not have reference to picking- off cotton while machine was in motion, caught on different parts of the machine but not in a dangerous place. Picking off accumulations of cotton while the machine was in motion was part of the duty of the operator.”
It appears from the record that the deceased was engaged in the carding room, in which there were four carding machines. Each machine consisted of a picker, a breaker, and a finisher. While these are different machines, they are connected together and operated as one set. The deceased had charge of one set, and it was his duty to watch the yarn as it came from the carder and take care of the machines while they were in motion. The' testimony tends to show that the deceased was working at the time of his in jury on the finisher. The finisher consists, in part, of two cylinders with protruding ends of small wires. As the cylinders revolved in opposite directions, they separated the cotton. In front of the cylinders, and close to them, was a metal guard to protect the operator against injury. Sometimes the cotton would collect on this guard, and, if not removed, it would cause an imperfection in the product. The findings show that it was near this guard that the injury occurred. Exception to finding No. 16 raises the question as to whether the removing of the cotton at this point was cleaning the machines, in such a sense as to make his conduct a violation of the posted rule that, “Cleaning machinery while in motion is strictly forbidden.”
Touching this question, Frank S. Cummings, who had been formerly general manager, and was at the time secretary and treasurer of the company, testified as follows:
“Q. I will ask if when you were manager, if a little piece of cotton got close to the wire where it. was. not- considered dangerous to pick it off, would they pick it off without stopping the machine?
“A. Any careful employee, any conscientious employee, kept his machine clean.
“Q. Well, now, to get to that, would he pick off the cotton there?
“A. Yes, sir.
“Q. Where it might interfere with the product?
“A. Yes, sir; with reasonable care there was no danger.
“Q. Would you consider this sign, ‘Cleaning machinery,’ would it apply to picking off that little cotton that might injure the product — would you stop the machine fqr that?
“A. If it was not in a dangerous place, it did not apply to that; it was commonly done.
“Q. That is, the employees were expected to do it, weren’t they, to keep them clean and pick off anything like that?
“A. Yes, sir.”
Frank S. Thomas, manager of the company, testified that:
“I posted the signs all over the mill as a general precaution against accidents that might result from cleaning machinery while it was in motion. * * *
The common custom, however, is in the mills to pick the cotton off from the cards, and I do not think our understanding of the words ‘cleaning machinery,’ included that.
“A, As I say, I don’t think our understanding of ‘cleaning machinery’ included picking off such as it was reasonably safe to pick off while the machines were in motion, because it was really impractical to handle the machines in any other way.
“Q. To stop the machines to pick off a little cotton that might be caught in there that you could reach handily would impair the product of the machine?
“A. Yes, sir; every time you stop the card, there is unevenness produced in the work, and, of course, it involves a loss of time, and naturally every practicable attempt to keep the machine in continued operation is taken.”
The testimony relied upon to support finding No. 15 is as follows: Speaking of the sign on the machinery, “Hands Off,” the witness Frank S. Cummings testified:
“A. Yes, sir; those, perhaps, if I may be permitted to explain, were never put there as an indication of danger.
“Q. Did you put them there?
“A. Yes, sir; I was here when the machines were bought, and they were on the machines when they were put there by the manufacturers of the machines.
“Q. You don’t know why the manufacturers put them there?
“A. Surely, simply because putting your hands on them disturbed the mechanism of the machinery. There is no danger from that. The machinery operates through a system of weights, and, when it reaches a certain weight, then it dumps down onto the apron, and, if anybody puts their hands in-there, and dis turbed the mechanism, it makes it work irregularly, and it has to be repaired, it is simply a delicate piece of machinery that ought not to be handled.
“Q. Is there any danger connected with it at all ?
“A. Not a particle.”
Unless there was no proof to support the finding of fact, this court has no power to interfere. The foregoing testimony affords some proof of the facts therein found. It follows therefore that the exceptions to these findings must be overruled.
Several legal questions are raised and discussed by appellant. Most of them rest upon the assumption that the foregoing exceptions are well taken. The exceptions having been overruled, it will be unnecessary to consider them.
A further question is raised that the death of the deceased was caused by the disease diabetes. This was a question of fact. The board, after taking the proofs, decided that this claim was not established by the evidence. An examination of the evidence bearing upon that question convinces us that there was room for such a finding, and therefore it must be regarded as final.
In connection with this question, another one is raised, and that is the refusal of the board to allow respondent to reopen the proofs after the day set for the hearing to permit further expert testimony to be introduced on.this question. The hearing on appeal was fixed for September 9th. On that day claimant’s attorney was present and was heard. Respondents did not appear; they evidently relying upon certain suggestions made by them to the board for an adjournment. The matter was then held open until October 8th. On that day the board gave respondents an opportunity to be heard, but refused to allow them to introduce expert testimony because of the absence of claimant’s attorney, and further refused to allow depositions to be taken in Detroit and elsewhere, because of the added expense to claimant to have her counsel present. Section 11 of part 3 of the law gives the parties the right to be heard, and the right to introduce additional testimony on appeal.' This right was given to them on' September 9th. The fact that appellants’ efforts to secure an adjournment proved-futile on September 9th did not make it incumbent on the board to grant further time in which to take additional testimony.
We think the determination of the board should be affirmed.
' Brooke, C. J., and M.cAlvay, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred. | [
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Moore, J.
Henry Tolsma, deceased, was a bachelor and a farmer. His sister Mina Tolsma presented a claim against his estate. Her claim is that for 18 years, 6 months, and 18 days she kept his house, doing all the housework, making butter, raising chickens, making garden, attended to the personal wants of her brother, washed and mended his clothes, cooked his meals and meals for his hired help, and upon occasions worked out of doors picked up grubs on a new clearing, driving a horse in haying, and doing various other sorts of work for which it was agreed, to state it in the language of the claim filed by her—
“By said Henry Tolsma, deceased, and the undersigned, that the services performed as aforesaid by the undersigned, Mina Tolsma, were to be compensated and paid for by him the said Henry Tolsma, deceased, and that as such compensation the said Mina Tolsma was to have and receive the land constituting. the farm and home of said deceased in payment of the services rendered as aforesaid.”
The commissioners allowed the claim at $1,650. The claimant appealed to the circuit court, and, from a verdict and judgment of $6,770 in her favor, the case is brought here by writ of error.
We quote from the appellant’s brief:
“We will divide our brief into the following heads:
“First. Errors in the ruling of the court, made before submitting the case to the jury.
“Second. Error in overruling defendant’s motion to direct a verdict.
“Third. Error in refusing defendant’s request to charge.
“Fourth. Errors in the charge.”
1. Under this head counsel claims it was error to allow Mrs. Kakabaker to testify as to the value of the services rendered, because it was not shown she was competent. This witness testified that she had known claimant many years, and lived during the summer seasons on a farm adjoining Henry Tolsma’s farm; that she knew much about the work that claimant did; that she was acquainted with work of the character done by claimant, and thought she knew its value. We think the testimony was competent. See Ritter v. Daniels, 47 Mich. 617 (11 N. W. 409); Lathrop v. Sinclair, 110 Mich. 329 (68 N. W. 248); Fowler v. Fowler, 111 Mich. 676 (70 N. W. 336); Miller v. Township of Meade, 128 Mich. 98 (87 N. W. 131).
The claimant produced four receipts bearing her signature, the aggregate total of which was $230, and testified that she and one of her brothers found them in a tin can under the kitchen floor after Henry died, in the space about three feet high, between the earth and the kitchen floor, which space was reached by a trapdoor, and that certain other papers were found in another tin can, which, upon cross-examination, it developed were bank certificates of deposit, belonging to the dead brother, which certificates were turned over to the administrator. Miss Tolsma testified that the receipts bore her signature, and that they were made at the time the receipts bear date. It is claimed this testimony was incompetent because equally within the knowledge of the deceased, counsel citing the statute and Schratz v. Schratz, 35 Mich. 485.
It is clear that the testimony of finding the receipts was not incompetent because that occurred after the death of Henry. In the case of Schratz v. Schratz, supra, the claimant was allowed to testify to the contents of letters which had passed between claimant and deceased. The court, in holding this testimony inadmissible, said:
“There could be no question, admitting the testimony to be true, but that the contents of the letters were within the knowledge of the deceased, equally as within that of the witness. The letters, if they could have been produced, would have been admissible, but their loss or destruction would not change the rule and permit the witness to testify as to their contents.”
In the instant case the witness did not testify to the contents of the receipts, but they were put in evidence. What we have cited from the case justifies this course.
The other assignments of error may be considered together, because, if there was any question to go to the jury at all, it was submitted in a very long charge, in which the theory of defendant was stated to the jury, and the rights of the defendant as to the applicable law were carefully guarded.
The substance of the claim of appellant is stated by its counsel as follows:
“The court erred in overruling defendant’s motion for a directed verdict. The court should have directed a verdict in this case at the close of defendant’s testimony, because the plaintiff did not show that there was any contract relations existing between the plaintiff and deceased, and did not prove a case to be submitted to the jury. * * * There is absolutely no testimony to show that plaintiff was to receive anything for her work, or that the deceased ever agreed to pay her anything, or that he ever recognized that he was indebted to her. We maintain that plaintiff has not made as strong a case as in the case of Robinson v. McAfee, 59 Mich. 375 (26 N. W. 643).”
Counsel also cite Rodgers v. Lamb’s Estate, 137 Mich. 241 (100 N. W. 440). A reference to the first- named case shows, as will appear later, that it is not controlling. In the last-named case Justice Montgomery, speaking for the court, made use of this significant language:
“Passing by the discrepancy between these statements, there may be enough in the latter to indicate an admission on the part of decedent of an obligation to pay. But if we assume that there was a scintilla of evidence to carry the case to the jury, we see no escape from holding that the claim is barred by the statute of limitations. There was no evidence of a mutual, open account. In re Hiscock’s Estate, 79 Mich. 537 (44 N. W. 947).”
On the trial it was stipulated that the value of the real estate was $7,000. In the instant case it is not questioned that claimant did the work for which she put in a claim, but it was urged as a defense on the part of the estate that claimant admitted she had been paid. We quote from the testimony of a contesting brother, Alfred Tolsma:
“Mina Tolsma is my sister. I had some talk with her after Henry’s death. I had something to do with closing up the estate in the first instance. It was during the time of the petitioning the court for the appointment of an administrator. I asked her if she was going to put in a claim, and she said, ‘No;’ that she had had her pay; that Henry had paid her; that she had receipts from him — she had given him receipts. She did not say how many. She said she had an arrangement with Henry that Henry had paid her $50 a year up to the last two or three years, and then he commenced giving her $80, and she had the butter and eggs and what she would sell. This talk was back of the house on Henry Tolsma’s place.”
Miss Tolsma denied this conversation or any like conversation.
The character of the work done by Miss Tolsma was testified to by Edward Tolsma, a brother of Henry, who all the time lived within a mile and a half of the claimant. We quote part of his testimony:
_ “Mina did everything about the house and helped him on the farm at different times at different things. Henry had two houses during the time Mina lived there. He built a house when she was there; the first house he had when Mina first came. It was just a little log house. It had three rooms, I think. She did the housework in connection with that home in that house. She did everything in the line of housework, and I know she did all the housework. I always thought it was well done. He built another house a little better than the one he had, with more room, with four rooms on the lower floor and three above. I recollect that Mina, after going there the first time, went away from there and worked a little while. She went to Kalamazoo. I don’t know how long she was in Kalamazoo. She went back to his place and took up the same kind of employment doing housework.
“Q. Tell the jury what you saw her doing other than the housework?
“A. I have seen her help him in the potatoes on the farm and help put up wheat, and I think a year ago last summer she helped him draw wheat in the barn, and I have seen her helping him get corn-stalks out of the field, and I have seen her pick up grubs with him and burning them, when he was clearing up the ground. * * * She always helped every year in haying, driving the horse on the horse fork. She always did that when I was there. I had conversation with Henry about Mina at different times. I don’t remember any particular date. I put in corn there three years ago last spring and had a conversation with Henry about.Mina at that time. We were in the yard out under a shade tree.
“Q. What did he say?
“A. He said, 'She was thinking of going away_from there and going to Kalamazoo and about getting a lot and building a house on it and leaving the place.’ He said he didn’t know what he would do without her, and if she went away he would sell his farm, because he wouldn’t try to keep the farm and have anybody work it on shares.”
We quote part of the testimony of another witness:
“I worked for Tolsma two or three weeks before he died. I had a little conversation with him once about his sister Mina working there for him.
“Q. Will you tell the jury where it was, when it was, and what was said?
“A. Well, gentlemen, I will tell you. I was passing there. I had to go to town, and I saw Mr. Tolsma out in the yard, and I went over there.to see him. I knew he had been sick, and I asked him how he was getting along; and he says, T feel a little.better today than I have felt; I think in a few days I will be able to work;’ he says, ‘within a day or two.’ I says, ‘Don’t hurry yourself, and you will be around all right.’ He sat down on the barn ridge, and we talked, and he got to telling me the conversation how he started there. He told me he had 30 acres down below there, south of there, that he and his brother bought together. Well, after a few years he bought his brother out, he said; then he bought some other land, and after a while I think his parents died — his mother died; some of them — and this little girl — he called her a little girl. Those are the words he said. He says, ‘She came to live with me.’ He said, T bought this, and I cleared all this up myself, only what little my brother helped me.’ That his brother had cleared up part of the 30 acres, and, having bought the 30 acres, he did the rest of the work himself. Well, he says, I think, it was just a few months prior to that Mr. Kakabaker (that was his neighbor) had offered him $120 per acre for that 20 acres, and Kakabaker wanted it on his farm. I says, ‘That is a pretty good price.’ I says, ‘Hadn’t you better take that and sell the whole thing?’ He says: ‘No, I don’t know anything else but farming. That is all I know. If I get the money it might get away from me.’ And he says, ‘More than that, when I am through with this, it all goes to my sister.’ He says, ‘It all goes to her.’ What he meant by that I couldn’t say, but those were the very words he spoke to me. I don’t know any more than that.
“Q. Did he mention her name?
“A. No, sir; he said the little girl.
“Q. Did he state to you why it was going to her?
“A. No, sir; he didn’t, because it was all going to her.
“Q. Did he say anything about what she had done for him?
“A. He said she had helped him make it all; she had helped him make it.
“Q. Did he say that was why it was going to her?
“A. Yes, sir.
“Q. How long was that before he died?
“A. Well, I think about 2 weeks or 21/2, because I go to town once a week. It was about 2 weeks, as near as I can tell.
“Q. .Did he mention Mina’s name in connection with the little girl?
“A. Yes, sir; her name was Mina. Yes, sir; he said his sister Mina.”
Cross-examination of Mr. Harris by Mr. Carney:
“ * * * He just mentioned — he said his father —parents died. Anyhow this little girl — he called her little — she came to live with him. He says, T will tell you, Harris, when I am through with this, it will go to the girl.’ That is just what he said. Why he said it I don’t know, but that he said: ‘When I am through with this it will go to her. She has been an awful help to me. She has helped to make it.’
“Q. Was that the substance of the conversation?
“A. That was the substance. That is just'what the man said. What he meant by it I don’t know. I didn’t ask him about it. I knew nothing about his business at all. These very words Henry Tolsma said to me. ‘If she outlives me it will all go to her.’ ”
We quote some of the testimony of another witness who lived about a half mile from Henry Tolsma:
“I recollect of Henry locating on the farm there where he afterward died. I also recollect of Mina Tolsma’s coming there. I had an opportunity to observe the nature of Mina Tolsma’s employment during the time she was there. I have seen her loading hay, husking corn, loading wheat, pitching cornstalks, and helping him draw, and she always kept the yard mowed. She did the housework, the washing, and ironing. I have seen her assisting in gathering in the hay and corn. I have seen her load hay and gather it. I was well acquainted with Henry Tolsma and knew him practically all my life.
“Q. Did you ever have any conversation with him about Mina?
“A. I have.
“Q. When?
“A. If I recollect I had the first conversation with him on the subject two years ago this winter.
“Q. Will you go ahead and tell the jury where you were and the substance of what was said by Henry?
_ “A. We were in the woods cutting wood at the time, and we got to talking about the girl, and I says to_ Henry, ‘You ought to fix this thing so your sister will know what she is going to have;’ and he says, ‘We understand each other.’ Those are the words he told me.
“Q. Did he say anything about what she had done for him?
“A. He said she had done as much for him as any wife or anybody could have.
“Q. Do you recollect of him buying the last piece of land about having any conversation with him about Mina' at that time?
“A. Yes, sir.
“Q. What was that?
“A. He said he would not have bought it if it had not been for Mina.
“Q. How long ago was that?
“A. Now, I couldn’t just state when he bought that. * * !|:
“Q. State what you said and what he said.
“A. He bought it for her when he was through with it.
“Mr. Carney: I object to that. He didn’t say that; that is what you took it for; that is not what he said?
“A. He said he expected she would have it when he was through with it.
“Mr. Fitzgerald: Q. Let me ask you if you remember of Mina going away from Henry’s home and coming to Kalamazoo and working during the time she was there? Do you remember of her coming to Kalamazoo and working?
“A. Yes, sir.
“Q. Do you remember of her coming back?
“A. Yes, sir.
“Q. Did you have any conversation with Henry about her at the time or about the time she came back?
“A. I didn’t have any at the time, but I had it later on. He told me when cutting wood.
“Q. What was. that?
“A. He said he didn’t know what he would have done if he hadn’t got her back.”
It is not necessary to quote other testimony. We think what we have quoted shows that there was a question for the jury, under the following cases: O’Connor v. Beckwith, 41 Mich. 657 (3 N. W. 166); In re Williams’ Estate, 106 Mich., at page 503 (64 N. W. 490); Lathrop v. Sinclair, 110 Mich. 329 (68 N. W. 248); In re McNamara’s Estate, 148 Mich. 346 (111 N. W. 1066); Hialey v. Hialey’s Estate, 157 Mich. 45 (121 N. W. 465); In re Mitchell’s Estate, 178 Mich. 493 (144 N. W. 850).
Judgment is affirmed.
McAlvay, C. J., and Brooke, Kuhn, Stone, Bird, and Steere, JJ., concurred with Moore, J.
Ostrander, J. I think the estate should be held liable as upon an implied assumpsit. | [
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] |
Stone, J.
This is an action of assumpsit brought to recover of defendant the amount of rent of a certain store building containing a stock of goods sold by plaintiff to defendant, which rent the plaintiff claims defendant had agreed to assume and pay, and save harmless the said plaintiff on his covenant to pay rent in a certain lease. Defendant having refused to pay such rent, the same was paid by the plaintiff, who brings this action to recover the amount so paid. The history of the dealings of the parties was as follows:
On January 15, 1913, the plaintiff owned and possessed a stock of sporting goods contained in a store located at 122 West Main street, Kalamazoo. He held the premises under a written lease from the Home Savings Bank of that city. The said bank held the store under another lease from Anna E. and John B. Doyle. The lease from the bank to the plaintiff contained the following clause:
“This lease is made subject to the Home Savings Bank lease of said property, a copy of which is hereto attached.”
The lease from the Doyles to the bank contained the following clause:
“And it is agreed by the. parties hereto that said second party will not assign or transfer this lease or sublet said premises or any part thereof, without the written assent of said party of the first part, except for office or desk room.”
There was a written consent by the Doyles to the sublease from the bank to the plaintiff. Neither the Doyles nor the bank ever signed a consent for the defendant to occupy the store. The defendant owned a farm of 160 acres, 20 acres of it, however, was a wood lot, and did not adjoin the other property, but was a considerable distance therefrom. After some preliminary negotiations, the parties agreed to trade the stock of goods for the 160-acre farm; the plaintiff claiming that defendant agreed to take over the lease of the store. The plaintiff was to give defendant a mortgage back of $3,200 on the farm. The defendant and his wife executed a deed of the farm to the plaintiff, and the latter executed a bill of sale of the stock of goods to the defendant, and plaintiff and his wife executed the mortgage back to the defendant. The defendant claims that the bill of sale was not read over or delivered to him. It appears that the bill of sale was left with Mr. Frost, the attorney who drew the papers for the parties, and that a copy thereof was delivered to • the plaintiff. The bill of sale contained the following clause:
“Said party of the second part is to assume and save harmless the party of the first part from the covenants of the lease entered into between himself and the Home Savings Bank.”
Attached to the plea of the general issue was a notice to the effect that the defendant would show on the trial that the above clause was inserted in said contract without the knowledge of the defendant; that he did not know it was there; that he never agreed to said clause verbally or in writing, and never intended to; and that said clause was without consideration and void, for the reason that said plaintiff never had any lease with the Home Savings Bank which he could legally transfer to defendant, and no lease or contract under which he could legally sublet the whole or any part of said store. Whether or not defendant did agree to assume the covenant of the lease, and save harmless the plaintiff, was a disputed question upon the trial. It did appear that neither the lease nor a' copy thereof, from the Doyles to the bank, was attached to the plaintiff’s lease, nor was the same shown to defendant. Mr. Frost prepared an assignment to defendant of the plaintiff’s lease, which was signed by the latter.
Defendant took possession of the stock of goods and store on January 16, 1913, and retained possession until February 20, 1913, when he sold the stock to one Maxwell. By the terms of the bill of sale the plaintiff was to pay the rent to January 16th. The rent was $115 a month. In settling with the bank for the rent the plaintiff gave his cheek for $57.50, one-half month, and defendant turned it over to the bank, and settled the month’s rent. Defendant claims that Mr. Frost was the agent of both parties in drawing the papers. The bill of sale, and copy of plaintiff’s lease with the Home Savings Bank with the assignment thereon were left with Mr. Frost, and there was evidence that the latter, acting for the defendant, went to see the president of the bank with reference to obtaining the bank’s consent to an assignment of the lease, and that such consent was refused, unless the owners of the building would consent. The defendant was never disturbed in his possession of the store, and he paid the rent of the store up to the time of the sale to Maxwell.
Within a few days after the transaction of January 15, 1913, Mr. Frost discovered that there was a mistake in the description of the premises contained in the deed, and he immediately notified the defendant to come to his office, and he came very soon thereafter, and at that time Mr. Frost and defendant had some talk with reference to the lease, and the defendant then disclaimed anv agreement to take over the lease. Mr. Frost then advised him not to sign the deed correcting the mistake. Defendant himself testified that he learned about the provision concerning the lease and what was contained in the bill of sale within a day or two after January 15th, and that Frost advised him not to sign the deed then. After he learned of this bill of sale and the provisions contained in it, and on the 14th day of February, 1913, he executed a deed to correct the description contained in the deed of January 15th, and continued in possession of the. store until the 20th day of February, 1913, when he sold- the stock to Maxwell, who continued to occupy the store until about the 22d of May, when the key was returned to plaintiff. Subsequent to that date plaintiff was called upon by the bank to pay the rent, which he did, and this suit was brought to recover from the defendant for the rent so paid by plaintiff. If the plaintiff is entitled to recover, there is no dispute that the amount of the verdict is correct.
The testimony of the circumstances relating to the correction of the deed is uncontradicted, and is very significant. Upon that subject Mr. Frost testified as follows:
“Q. Now, Mr. Frost, I want to ask you about that deed and mortgage. You said something about the description in the deed; did you afterwards discover that there was an error in the description?
“A. Yes, I did, Mr. Jackson, as I remember it now. After the deed had left my possession I got to thinking about the description to myself, and I thought that can’t be right, there isn’t 160 acres, so I came up to the register of deeds’ office myself, and went and looked at the deed and found it wasn’t correct, and 1 at once notified Mr. Jaseph and Mr. Harlow both, I think, by telephone, that I had made a mistake in the description of the deed, and then I drafted another deed with the proper description, and telephoned Mr. Jaseph to come down, he and his wife, and sign the other deed.
“Q. How long was it after this deed was given before you made this discovery?
“A. Right off. * * *
“Q. How long after that was it before you got the deed from Mr. Jaseph — the corrected deed — signed?
“A. I know Mr. Jaseph came in very soon, I know for this reason, he came in and — do you want me to tell what took place?
“Q. Yes.
“A. I said, ‘Mr. Jaseph, there is a mistake in the description of the deed to Mr. Harlow,’ and I said, ‘Mr. Harlow looked the paper over when I read it, but it isn’t right,’ and I said, ‘I have drafted another deed which I want you and Mrs. Jaseph to execute to make it correct.’ Mr. Jaseph said, ‘All right,’ and then Mr. Jaseph spoke to me and he said, ‘What did you say about the assignment of some lease?’ And I said I had been down to see Mr. Barker of the Home Savings Bank and that he would not consent to the assignment of the lease, and Mr. Jaseph, using his language, said, ‘Oh h — 1, I didn’t never take that lease,’ then I said, being that is so, he shouldn’t sign that deed; I knew there was a mistake some place, and I wanted to do what I could to rectify it.
“Q. Was there anything further done about the lease?
“A. Not about the lease, Mr. Jackson.
“Q. Was there anything further done about the deed?
“A. Yes, later on Mr. and Mrs. Jaseph came up and executed the deed to Mr. Harlow.
“Q. Do you recall how long that was afterwards?
“A. I don’t, Mr. Jackson.
“Q. Well, now, I suppose the deed itself bears the date upon which it was executed?
“A. Oh, yes; I presume so.
“Q. With reference to the lease, you told Mr. Jaseph, did you, that Mr. Barker said he went to see the owners of the property—
“A. No, not that way, Mr. Jackson; I told him Mr. Barker told me that I would have to see the owners of the property.
“Q. Did you ever try to see the owners of the property?
“A. I did not.”
The defendant, after testifying on direct examination that he never , agreed to assume the lease, but that the next day he went back to Mr. Frost who said to him, “I can’t get that lease assigned over to you, I have been over to the Home Savings Bank,” and that defendant said in reply, “I don’t want it, and I never agreed to take it,” on cross-examination testified as follows:
“Q. When was the first time, then, that you learned that Mr. Harlow claimed that you had taken over this lease to the store?
“A. When I went down to see Mr. Frost the next day or so.
“Q. Within a day or two, anyhow?
“A. Yes, sir.
“Q. You then learned that Mr. Harlow claimed you had taken the lease to the store when you had purchased the stuff?
“A. Mr. Frost spoke about the lease; I said, ‘What lease ?’ He said, ‘Why, the lease of that store.’ I said, T don’t want the lease of that store. I didn’t agree to take any lease.’
“Q. Mr. Frost told you then that Mr. Harlow claimed you did and told you not to sign the deed then — the corrected deed?
“A. He said, ‘Let it rest until we get it settled.’
“Q. And you understood Mr. Harlow claimed that you had taken over the lease of the store when you bought the stuff?
“A. Yes, he claimed that.
“Q. You understood from Mr. Frost on that day— a day or two afterwards — later when you went back there to see Mr. Frost, when you and Mr. Frost had this conversation, that Mr. Harlow then claimed that you had taken the lease of the store with the goods?
“A. That is what he told Mr. Frost. It was something new to me.
“Q. But you understood that day that was what Mr. Harlow claimed?
“A. Yes, that is what Frost told me Harlow claimed. He told me Harlow ordered him to draw up a lease and bill of sale, and he done it, and tried to get it transferred to me and they wouldn’t do it. I said I never agreed to take the lease—
“Q. You learned that a day or two after the transaction was made?
“A. Yes, sir; I did.
“Q. And you have understood up to the present time that when you bought those goods you assumed the lease?
“A. I understood he has claimed I did, yes.
“Q. And you were in possession of the store at that time, were you not?
“A. Yes, sir.
“Q. At the time when you learned this of Mr. Frost?
“A. Yes. * * *
“Q. And you knew about this provision which was inserted in this bill of sale, you learned that from Mr. Frost a day or two after the original transaction, as I understand it; is that correct?
“A. Yes, sir.
“Q. And following that you gave another deed to Mr. Harlow, didn’t you?
“A. Yes, sir; we rectified the description in the other one.
“Q. To rectify the mistake that was made in the original transaction?
“A. Yes, sir. (The deeds were then shown witness, the first bearing date January 15th, and the second, or corrected deed, February 14th.)
“Q. Mr. Jaseph, I notice that nearly a month ex pired between the time that you gave this original deed and the time that this corrected deed was made from January 15th to February 14th. Let me ask you if during that time you didn’t state to Mr. Frost that you wouldn’t give Mr. Harlow a corrected deed unless he would release you from that clause in the bill of sale, or that in substance?
“A. No, sir; he advised me to wait.”
At the close of the plaintiff’s testimony defendant’s counsel moved for a directed verdict because it was out of the power of the plaintiff to transfer the lease without the consent of the owner of the premises, and that there was a failure of consideration. The court refused to direct a verdict for the defendant, adding:
“Under the proposition of the lease, if Mr. Harlow kept his lease, as the bill of sale is drawn, Mr. Jaseph would be obliged to take care of it. (To which ruling defendant’s counsel excepted.)”
The trial court instructed the jury that whatever the prior arrangement was as understood by the defendant, when on the 14th of February he corrected the deed, he acquiesced in and. affirmed the entire transaction of January 15th, to save harmless the plaintiff from the payment of rent under the lease between the plaintiff and the bank, and was estopped from denying his obligation under the bill of sale as written. A verdict and judgment were rendered for the plaintiff for the full amount of the claim, and the defendant has brought the case here upon writ of error.
Many errors are assigned which, in our view of the case, we do not think it necessary to discuss, for the reason that, if the trial court was right in its instruction to the jury, the plaintiff was entitled to recover, and the errors assigned on the several rulings of the court complained of, at most, would be harmless error.
It is the claim of the plaintiff that he was entitled to recover, and to have a verdict directed in his favor upon the undisputed testimony of the plaintiff and the testimony of defendant. It is urged by plaintiff’s counsel that, if defendant’s testimony is true in toto, then the most that can be claimed for it is that the minds of the parties never met upon an exchange of their properties; for there is no mistaking the fact that, under the evidence in the case, the plaintiff never intended to exchange his stock of goods for this farm except upon the terms contained in the bill of sale; and, assuming defendant’s testimony to be true, he never intended to assume the plaintiff’s liability under the lease. In such an event there was no meeting of the minds; but according to the testimony of Mr. Frost, which is uncontradicted, he discovered a mistake in the description contained in the deed given by the defendant, and immediately notified the defendant, who came to his office within a day or two after the transaction of January 15th, where the defendant learned of the provision contained in the bill of sale executed by the plaintiff, and thereafter, without attempting to rescind the transaction but with full knowledge of the plaintiff’s contention concerning the lease and the provision contained in the bill of sale, and a month after this original transaction, executed a deed correcting the description. He thereby confirmed the transaction; and within a few days thereafter, and on the 20th day of February, he sold this stock of goods to one Maxwell, thereby putting it beyond his power to rescind the transaction. In other words, it is claimed by the plaintiff that under these conceded circumstances the defendant ratified the original transaction as claimed by plaintiff, and therefore the plaintiff is entitled to recover. We think there is much force in this .claim. In support of this position plaintiff cites the following cases:
Estey Organ Co. v. Lehman, 132 Wis. 144 (111 N. W. 1907, 11 L. R. A. [N. S.] 254, and note, 122 Am. St. Rep. 951), holding that the purchaser of a chattel who, without any agreement between the parties as to the price, receives it from the carrier and retains it, with knowledge of the price demanded by the seller which was a reasonable one, will be bound to pay that price, although, before receiving the property, he contended that the price to be paid was a less amount, Cunningham v. Rotograph Co., 30 App. D. C. 524 (15 L. R. A. [N. S.] 368, 13 Am. & Eng. Ann. Cas. 1147).
If the writing of the clause complained of by the defendant, in the bill of sale, was the unauthorized act of Mr. Frost, the agent of defendant, the latter certainly could ratify that act. The entire' contract concerning the trade was an indivisible one, and when defendant voluntarily corrected the deed and, instead of rescinding the trade, held the goods, knowing at the time that plaintiff claimed that the defendant assumed the lease and was to save the plaintiff harmless from the covenants thereof, we think it should be held that defendant ratified the terms of the sale as they were written.
In Busch v. Wilcox, 82 Mich. 315 (46 N. W. 940), this court held that when a person adopts the unauthorized acts of another in his behalf, and has received and holds the benefits accruing therefrom, he adopts and ratifies the instrumentalities by which the fruits were obtained. See, also, Sokup v. Letellier, 123 Mich. 640 (82 N. W. 523); Schmid v. Village of Frankfort, 141 Mich. 291 (104 N. W. 668).
There is another view of the case which is equally binding upon the defendant. When the plaintiff learned that defendant claimed that he never agreed to take over the lease, and save the plaintiff harmless from the covenants thereof, he might well have said:
“As the minds of the parties have not met, I will rescind the entire contract.”
By the conduct of the defendant in correcting the mistake in the deed, and within five days thereafter selling and delivering the stock of goods to Maxwell, he put it out of his power to place the plaintiff in statu quo had the latter desired to rescind the sale.
We think there is much force in the position of the circuit judge that the defendant was estopped by his conduct from claiming that he did not ratify the entire transaction. It is true the rule is well settled that no estoppel is created when the situation of the party in whose favor the estoppel is claimed to operate is no different from what it otherwise would have been. But here it seems to us that the situation of the plaintiff was changed, as we have above indicated, by the conduct of the defendant. If defendant’s claim that he never agreed to take and assume the lease is true, it would have been a good defense to a bill filed by plaintiff to correct the description in the deed and reform that instrument; for if the general equities of the whole transaction were against complainant he could not have reformation. 34 Cyc. p. 945; Redding v. Rozell, 59 Mich. 476 (26 N. W. 677).
By his volúntary correction of the description it may be said that defendant impliedly waived his right to claim that the entire contract as asserted by the plaintiff was not correct.
While these questions are generally held to be mixed questions of law and fact, yet, when but one inference can be drawn from the conceded facts, it is not error for the court to charge the jury as to the legal effect of such acts.
We are of opinion that, under the conceded facts as we have reviewed them, the plaintiff was entitled to -recover in this action, in any view which we are able to take of the case.
The judgment of the circuit court is therefore affirmed.
McAlvay, C. J., and Brooke, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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McAlvay, C. J.
Plaintiff, as guardian of James O’Brien, a minor, brought suit against defendant, an Iowa corporation, upon a certain fraternal insurance certificate issued by defendant association April 7, 1911, upon the written application of Elizabeth Downey, of Detroit, made April 3, 1911. The original beneficiary named in such certificate was Elizabeth Downey, a daughter of the insured. On or about May 13, 1911, on application by the insured, the beneficiary was changed to Michael James O’Brien, a grandson of the insured. Elizabeth Downey, the insured, died July 12, 1911. The suit brought upon this certificate resulted in a judgment in favor of plaintiff. Defendant has brought the case to this court upon a writ of error.
The fraternal insurance certificate, which was also a certificate of membership, in terms states that it was issued and accepted in consideration of certain warranties, conditions, and agreements contained in the application of membership made and signed by the assured, which application is of great length and which need not be quoted verbatim. It was made a part of the certificate sued upon, including answers to questions in the medical examination contained therein, which in terms were warranted by the insured as full, complete, and true, without evasion or concealment. It was agreed that the application, together with the constitution and by-laws of the order, should form the full and only contract between the parties; and also contained the agreement that any untrue answer to any question on said application should immediately, without process, render the certificate issued thereon null, void, and forfeited, together with all amounts paid thereon.
One question in the medical examination of this application by Mrs. Downey is as follows:
“(21) Is any member of your household affected with consumption, or been so affected during the past two years?”
To this question she answered, “No.”
During the trial defendant, in order to show that this answer was not true, and that Timothy Downey, a son of the insured, died of consumption April 5, 1909, within the two years covered by the warranty contained in answer to question No. 21 of the application, and for that purpose offered in evidence a certified copy of the certificate of death of Timothy Downey, the original of which purported to be signed by Elizabeth Downey, showing the date of his death and the disease of which he died, together with the medical certificate thereto attached, all certified by the department of health of the city of Detroit.
Counsel for plaintiff objected to the introduction of the same on the ground that it was—
“Incompetent, irrelevant, and immaterial. In the first place, it is not the best evidence; in the second place, it is immaterial under the issues in this case. There is nothing in the contract between the parties in this case to show that there was any warranty to the effect that any member of the family had not died within two years.
“The Court: Was there any living member of the family so affected?
“Mr. Gates (Counsel for Defendant) : No, I think not.
“The Court: I will sustain your objection.”
Counsel for defendant thereupon excepted. From the above remark it is apparent the court’s construction was that question No. 21 did not include any member of the applicant’s household affected with consumption who had died from that cause within the two years preceding the date of the application.
We do not think that this question will bear such construction. Our construction is that it refers to all who had been members of the applicant’s household at any time during the preceding two years. Under the pleadings in this case, the evidence offered was material and relevant. This was a public record required to be kept by law, and a duly certified copy was admissible in evidence.
The benefit , certificate upon which suit was brought contained the following, after the seals and signatures of the proper officers:
“Member adopted. Certificate delivered this 15th day of April, 1911.”
Below this appears the following warranty signed by the insured:
“I hereby warrant that I am in good health and that no change has occurred in my condition as set forth in my application and I accept this benefit certificate and agree to all the conditions herein contained.
“Elizabeth Downey,
“Member Adopted.”
The record shows that Clarence J. Williams, foreman of the homestead (which in most organizations is called a lodge) to which Mrs. Downey belonged, testified that he received this certificate April 15, 1911, and dated it as of that date; that Mrs. Downey did not sign it on that day; that he kept it from eight to fifteen days and then sent it to Mark McKee, the State manager of defendant. Mr. McKee testified .that he gave the certificate to Thomas R. Hayes on April 28, 1911; Mr. Hayes, who at the time was an officer of defendant company, testified that after he received the certificate he took it to Mrs. Downey, who thereupon signed it and he delivered it to Mr. O’Brien at her request. As we understand the record, Mr. O’Brien is the father and guardian of the minor and the plaintiff in this suit. The foregoing testimony in relation to the delivery of the certificate to Mrs. Downey and her signature to the warranty is all of the testimony in the case upon that subject.
The court, in submitting the case to the jury, charged as follows:
“I cannot say to you that this policy was delivered on the 29th day of April; that is a question for you to determine.”
Defendant has assigned error upon such portion of the charge for the reason that it was contrary to the undisputed evidence in the case which, as already stated, showed that it was in fact delivered, signed, and accepted by her April 29th. In a motion made by counsel for defendant for a directed verdict, which will be considered later, the fact that the undisputed evidence in the case showed that this certificate was not delivered until April 29th was urged and argued at length. The court therefore was in error in charging the jury as quoted. The evidence upon the question was undisputed.
The record shows from the testimony of two reputable physicians, both of whom attended Mrs. Downey during her last sickness, that she died from pulmonary consumption. One of them testified that as early as the 15th of April she was suffering from that disease. He testified that he made a culture which developed germs of tuberculosis.
It is contended on the part of defendant that this testimony is undisputed as to the fact that she was suffering from this disease before April 29, 1911. Plaintiff urges that the testimony of several witnesses, all of whom were laymefi, that during this time she was doing housework, was about the house, looked and acted well, contradicts the testimony of the expert witnesses and makes it a disputed question of fact. Under the circumstances of the instant case, in a disease of this character, the testimony of ordinary laymen, as these witnesses were, cannot be considered as raising a disputed question of fact against the testimony of the character that was given in this case by reputable physicians based upon professional diagnoses and approved scientific tests.
The motion of defendant for an instructed verdict in its behalf on the ground that Mrs. Downey before and at the time of accepting the benefit certificate was not in good health and was suffering from pulmonary consumption should have been granted. The court was in error in denying it.
Plaintiff urges that defendant had waived the defense of any and all breaches of warranty contained in the policy, as shown by its correspondence with plaintiff’s attorney. An examination of these letters discloses that they referred to the matter of proofs of loss necessary to get the claim in proper shape for presentation to the board of directors for consideration and do not constitute a waiver of the defenses relied on.
There are other questions discussed which do not require consideration.
The judgment of the circuit court is reversed, and no new trial will be granted.
Brooke, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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Kuhn, J.
This action arose out of a contract for the sale by plaintiff to defendant of a beer carbonating system, to be installed by plaintiff in defendant’s brewery. The contract, dated February 28, 1912, contained, along with provisions which were specifications of the machinery, the following:
“Our expert to erect these plants and remain a sufficient time until your employees are sufficiently posted and competent to operate the system. * * *
“We to install this plant on 30 days’ trial.
“The consideration on your part to be the payment of the following amount: $4,600, namely: Thirty days from first operation of the plant, $1,000 cash, and 15 monthly installments of $250 each. * * *
“We agree to complete the outfit on or before June 1, 1912”
—but contained no warranties.
The machinery was installed by plaintiff’s engineer, and first used on May 23, 1913, and the defendant’s employees were instructed how to operate it. After it began to use the system, the defendant complained of “cloudy” beer, and was obliged to take back considerable quantities from its customers. The change in the flavor of the beer was discussed with plaintiff’s agents Skinner and Ketler, and after one of these conversations defendant ordered another filter, in the hope that the carbonating system would give satisfaction if two filters were used. The plaintiff made repeated requests for payment, but several months elapsed before the additional filter could be had and set up, and, before the defendant had satisfied itself with further tests of the machinery, the plaintiff instituted suit to recover the purchase price of the machinery.
The defendant in its defense gave notice of recoupment and claimed damages to the amount of $10,000. By the old process of manufacturing beer, which defendant had used before the carbonating system was installed, it went through the stages of boiling, cooling, settling, and fermenting during the first 15 days, after which it was stored successively in standards and chip casks about 6 weeks and was then ready, for sale. In this brewery, while the beer was in the chip casks, in order to give it foam, sparkle, and life, a small quantity of new beer, made from sugar, was added to the old beer, which process is known as “krising,” and generally took about 14 days of time. It is claimed for this carbonating system that it forces carbonic acid gas into the beer as it is drawn off, giving it the foam and sparkle, and thus dispenses with this secondary fermentation under the old method.
It was claimed by the defendant that plaintiff’s salesman, in negotiating the sale before the contract was entered into, represented to it that by the use of the carbonating system the beer could be carbonated when it was 15 days old, without the aid of an additional filter, and be as good beer as defendant had been making by the old process in about 2 months, and that defendant could by the use of this system increase its capacity two or three times; that the first run of beer through the carbonating system was unsatisfactory, and the plaintiff’s engineer Skinner promised to have a man sent to correct .this matter; that when plaintiffs engineer Ketler came he informed the defendant that it must have another filter and the beer must be 6 weeks old instead of 15 days old. These claims were denied by the plaintiff, and evidence was introduced in support of the contentions of the parties to the controversy. The learned trial judge instructed the jury that if plaintiff’s agent represented to defendant that the carbonating system could be used successfully on 15-day beer and would increase defendant’s capacity two or three times, and the representation was false, the defendant would have a right to rescind the contract and be relieved from payment, provided it acted with reasonable promptness, and that circumstances might have existed which would allow it more than 30 days to exercise the right.
The jury found for the defendant, allowing it six cents damages, and the case is brought here for the, review of 32 alleged errors. Those upon which the plaintiff relies may be stated as follows:
(1) The admission of testimony in support of defendant’s claim that it was fraudulently induced to enter into the contract by the false representations of plaintiff’s agent.
(2) The admission of testimony in support of defendant’s claim for recoupment of damages on account of bad beer.
(3) The refusal of the court to direct a verdict on the ground that defendant did not exercise its alleged right to rescind promptly.
This case is planted in the pleadings, and was tried, upon the theory that the contract in question was obtained by fraud, and it was under this theory that the learned trial judge in a clear charge submitted the case to the jury.
It is urged that what the defendant is attempting to do, in effect, is to add to the contract entered into by the parties warranties not contained therein, and it is insisted that the rule that there cannot be read into a written contract an express oral warranty should not be evaded by calling facts which constitute an express oral warranty by another name, “fraud.” In support of appellant’s claim the case of Detroit Shipbuilding Co. v. Comstock, 144 Mich. 516 (108 N. W. 286), is relied upon.
We are unable to distinguish the instant case from that case, in principle, as it is clear that the representations the defendant here relies upon to show fraud, viz., that the carbonating system would take beer 15 days old and make as good beer as that which had been allowed to stand in the casks for a period of 4 or 5 months, and thus increase the capacity of the brewery three or four times, are warranties. As it was said in the Comstock Case with reference to such representations: “At most, this amounted to evidence of a parol warranty.” Under this authority we see no-escape from the conclusion that the trial court should have ruled out all the evidence with relation to such representations. We quote again from the Comstock Case (144 Mich. 519, 108 N. W. 287):
“That parol evidence is not admissible to add to an unambiguous writing facts which may aid the implication of warranty, see McCray Refrigerator, etc., Co. v. Woods & Zent, 99 Mich. 269, 275 [58 N. W. 320, 41 Am. St. Rep. 599].”
As there is no question in this case of an implied warranty arising out of the contract, as there was in the Comstock Case, with the elimination of the testimony with reference to the representations, there was nothing to submit to the jury, and a verdict should have been directed for the plaintiff. As no judgment can be entered here, the case will be reversed, and a new trial granted.
McAlvay, C. J., and Brooke, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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Cheistiancy J.:
We do not think the contract between complainant and Baughman would have entitled complainant 1o any relief on the ground of a mechanic’s lien, had it properly described the land; and (though we give no opinion upon the point) we are not entirely satisfied that, for the purpose of such lien, any further description was necessary, in a case like the present; the tract upon which the house was erected being less than one hundred and sixty acres. See Comp. L. §5068.
But the contract provides upon its face for a mortgage security upon the same land to which the lien is claimed to attach —a species of security entirely inconsistent with the idea of a mechanic’s lien upon the same land as a security for the same debt.
The lien authorized by the statute is intended as a security for the payment of the debt, and can only be enforced as a means of compelling payment. Doubtless such lien may attach and be enforced to compel payment whether the debt be payable in cash or otherwise. But the statute does not give the lien for the purpose of compelling the debtor to give other collateral secw'ity for the debt, nor does it provide any mode of enforcing it for such a purpose. Yet this is the only purpose, we think, for which the lien could be claimed to exist under this contract. At all events no remedy could be given upon it in this case as a means of enforcing payment, as the debt is not yet due. But we are satisfied that the statute -creates no lien where the parties, by their contract, provide for a different security upon the same land for the same debt which the lien would otherwise, secure.
The only remedy, therefore, which it is competent to give to the complainant in this case, is to correct the mistake in the contract by inserting the description of the land, and by enforcing specific performance by a decree for the execution and delivery of the bond and mortgage.
It is fully admitted by the counsel for the defendants, that the nine acres of land described in the bill as that on which the house is situated, was intended to be, and ought to have been, inserted in the contract; and we are satisfied such is the fact. The complainant is therefore entitled to a decree for such correction. IEe is also entitled to a decree against defendant Baughman, for the execution and delivery by him of a bond, and a mortgage (to secure such bond) on ' the nine acres, for the amount due on the contract, to be made payable at the time provided in the contract, which wras to be five years after the work was completed. The last item of work appears to have been done, and the contract substantially completed, about the twenty-first day of February 1857. The bond and mortgage must therefore be made payable on the twenty - first clay of February 1862, with interest at eight per cent, per annum from the twenty-first of February, 1851.
As to the amount to be secured by the mortgage, the contract is not entirely clear; • it is very loosely drawn, but we think, by fair construction, defendant Baughman was to give his bond and mortgage not only for the four thousand dollars, for work thereafter to be done, as specified.in the contract, but also for all the work which had been done or might be done, by the day or otherwise, not included in the contract prices, as well as all materials furnished or to be furnished by the complainant,
[The question of the amount due under the contract is then discussed, and the sum fixed at IseíáO.'¡'9, and the opinion then proceeds as follows:]
But admitting that the question of preference could be properly decided in this suit, and that the respective mortgages of Hubbard and Stewart, if taken with full prior notice of the contract, would be postponed to the mortgage to complainant, provided for by the contract (upon which we express no opinion); still we can not, in this case, give complainant a preference over either of said mortgages, for two very conclusive reasons: First, because such prior notice is not averred in the bill, as to the Hubbard mortgage, and secondly, no such prior notice is proved either as to the Hubbard or the Stewart mortgage.
The only portion of the bill which alludes to notice to Hubbard is as follows: “And your orator further shows that one Bela Hubbard, who was the son - in - law of said Baughman* when said contract was entered into was a subscribing witness to said contract, and he the said Hubbard, well knew the object of the said contract to be the same as hereinbefore set forth, and he had full notice and knowledge of said contract and -the object of it as hereinbefore set forth.”
This allegation is not made in connection with, or with reference to, the mortgage to Hubbard, and can only be construed as an averment of notice of the contract at the time it was executed and witnessed. The bill alleges that it was witnessed and acknowledged on the second day of April, 1856. Such at least we think is the fair import of the allegation: at all events there is no allegation of its being witnessed at any other time, nor that it was witnessed before the date of Hubbard’s mortgage. The bill states the Hubbard mortgage to have been dated the fifteenth day of March in the same year.
Prior notice to Hubbard was not, therefore, put in issue; and no evidence of such notice could properly be admitted: — Warner v. Whittaker, 6 Mich. 133; Bloomer v. Henderson, 8 Mich. 395. But, had it been proj>erly in issue, no such notice was proved in this case. Hubbard was required to answer on oath, and he denies that he knew that any part of said land wras intended to be described in the contract. The only testimony which goes to show prior notice to Hubbard is that of Stephen S. Barrows, the contractor. To say nothing of any interest or bias he may be supposed to have, we are satisfied that the weight of even his testimony (though somewhat contradictory and confused) when taken together, and considered with reference to all the circumstances, tends rather to show that the contract was not executed and witnessed till about the date of its acknowledgment (April 2, 1856), some eighteen days after the execution of the mortgage to Hubbard, and that Hubbard could not therefore have had notice of the contract when ho took the mortgage.
The answer of 'Stewart denies notice, actual or constructive. Prior actual notice is not claimed to have been shown by the evidence, as to him. But, as his mortgage was taken two days after the recording of the contract, it is claimed that the record was constructive notice of the contract.
But, admitting (without intending to decide) that the record might, without any description of the land, have been notice of a mechanic’s lien had the contract been in other respects sufficient to create such lien; yet as it could not so operate, for other reasons already given, the record could only operate as notice to the extent of the land described in it. And the description must be such that by construction, or by the aid of the references contained in it, the land intended may be specifically ascertained by metes and bounds. Here is no such description, by reference or otherwise. A single mathematical point only is described, as a starting point, and, though an inference may perhaps be drawn from the instrument that some land was intended to be included, and was omitted by mistake, yet when considered without reference to a mechanic’s lien (as to which it might perhaps be aided by the statute) no one can say from any thing contained or referred to in the contract, what was the specific land upon which a mortgage was to be given.
The decree dismissing the bill as to Hubbard, Litchfield, Walker and Stewart, must be affirmed with costs; and a decree must be entered against defendant Baughman, in accordance with the foregoing opinion. But as, on the one hand, the decree of the court below has been slightly increased, and on the other, has been materially narrowed by our decree, in refusing the remedy by foreclosure, given by the court below, and by postponing for one year the time of payment, neither complainant nor defendant Baughman, is entitled to the costs on appeal. But complainant is entitled to costs as against defendant Baughman, in the court below.
The other Justices concurred. | [
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Cheistianct J.:
As the demurrer to the replication opens the whole record, so far as defects of substance may be found, and the plea is claimed to be defective for want of certainty, ■the sufficiency of the plea is the first question to be settled.
The information is general, calling upon defendants to show by what warrant they claim to have and use certain liberties, privileges and franchises. It does not go upon the ground of failure to comply with any act of incorporation, or other law granting such rights and franchises upon certain conditions, nor does it claim a forfeiture of rights admitted to have existed, upon this, or any such ground. The plea sets up the act of incorporation, their organization under it (and other acts), by their alleged compliance with which the defendants claim the rights and franchises in question; alleges the construction of their road “from Jackson, in the county of Jackson, to Eaton Rapids, in the county of Eaton,” without specifying the number of miles, otherwise than by saying that “when said company had completed five consecutive miles thereof, and on the twenty - seventh day of November, in the year eighteen hundred and fifty, the directors of said company did, by resolution duly passed, require that tolls should be exacted,” &c.
It is not denied that the plea is a full answer to the information, upon every point except that of the right to take tolls. But by the law as it then stood — Paws of' 1848, p. 65, § 17— five consecutive miles of the road were required to be completed before this right accrued; and the question is, whether the above cited allegation of the plea is sufficiently certain upon this point. Had the plea been specially demurred to for this reason, it might perhaps have been held bad in form, as it is not a direct and positive allegation of the completion of the five miles of road. But it is a formal defect only, which could not have been reached on general demurrer, and the People having replied without objecting to the defect, on demur-, rer to the replication we can not notice this formal defect in the plea: — Steph. on Pl. 177; 1 Chit. Pl. 707, 708.
The only questions in the case must therefore turn upon the sufficiency of the replications, which have been specially demurred to.
In determining these questions, it may be well to take a general view of the laws under which the franchises of the company are claimed, and then to inquire whether the replications exhibit a ground of forfeiture, and to what extent.
First, as relates to the construction of tha road. As a pre-requisite to the right of taking toll, the company, as already noticed, were bound by the law of 1848 to have completed five consecutive miles of their road. This was reduced to two miles by the act of February 12, 1855— Comp. h. §§ 1984, 1986 — but whether this act can affect roads five miles of which had already been constructed,, it is unnecessary here to inquire, as the questions here involved would not be materially altered. Upon the completion of the five consecutive miles under the act of 1848, the right to take toll became vested; and, whatever might be the length of the road authorized by the charter, the right to tolls on the part completed, could not, by any thing in this act, or any other act applicable to the case, be forfeited or affected by the failure to construct the balance of the road. This is evident from the 19th and 20th sections, by the former of which the company are to cease to be a body politic, if within two years they shall not have commenced the construction of their road, and actually expended thereon ten per cent, of -the capital stock, and by the latter, if the road is not completed within ten years, the company “shall forfeit all rights to so much of the road as shall not be completed in a continuous line.” These are the only penalties-for failure to construct according to the act. If therefore a forfeiture of the franchise as to the entire road was claimed on the ground that the road had never been constructed in the manner required by the charter, it should have appeared upon the replication that no five consecutive miles of the road had been so constructed. And if the forfeiture of a part only were claimed on this ground, the replication should have shown specifically what part was not so constructed; otherwise the judgment of the court might be nugatory or uncertain, as the record would not show to what part of the road it applied.
This disposes of the first and fifth replications, which relate entirely to the question of construction of the road, and which, though literally true,, would not be inconsistent with the fact of the due construction of five consecutive miles of the road; since they amount to no more than an assertion that the road, as a whole, was not constructed according to the statute.
Repairs. As by the charter (for the act of 1848 is part of the charter) if five consecutive miles have been duly completed, the franchise can not be 'forfeited, as to the part so completed, by the failure to construct the balance, the question arises, whether if these five miles are kept in repair, and the remainder of the road or part of such remainder be afterwards constructed, would a failure to keep such remainder in. repair forfeit or affect the franchise as to the first five miles, while that is kept in repair ? I think it would not. Had the company been under the obligation to construct the whole road authorized by the charter (as is frequently the case with turnpike charters), a neglect of this obligation, by which the public would lose the benefit in consideration of which the franchise was granted, might, unless otherwise provided, be ground for forfeiting the franchise for the whole road. Doubtless a failure to keep the remainder of the road in repair when constructed, would be cause of forfeiture pro tanto: but whether for the whole of such remainder, or only so much of it as was not, for five consecutive miles, kept in repair, it is unnecessary here to decide; since, from Avhat has already been said, I think it sufficiently clear that, to authorize a forfeiture of the whole road on the ground of non-repair, the replication should have shown, at least, that the five miles first constructed had not been kept in repair; and to warrant the forfeiture of part for the same cause, the particular part, of which a forfeiture was sought, should have been in some way described and distinguished.
The second replication (which raises only the .question of repair) is defective in this respect: all that is properly alleged in it may be ftrietly true and yet the five miles may have been all along in good repair. The general statement with which this replication commences, is not of itself sufficient, without showing how and to what extent the road was out of repair, and that it had continued in that defective state for an unreasonable length of time. Absolute perfection can not be required as the standard of repair, nor could slight or occasional defects operate as a forfeiture, nor even such as interfered with safety or convenience, if repaired within a reasonable time. The company can not be required to repair before defects occur needing repair: and if the moment they occur their franchises are ipso facto forfeited, the charter is but an illusion and a snare. Admitting, therefore (without intending to decide), that any want of repair short of a virtual non user or abandonment would be cause of forfeiture, notwithstanding the penalty given by the twenty-third section, I am satisfied that no defects could be allowed so to operate except such as render the road unsafe for travel, or at least highly inconvenient, and these only when they had been continued an unreasonable length of time. It is only for defects which render the road unsafe that a penalty is given against the directors by the twenty-third section, and even this is not to be imposed till the time necessary for repairs has elapsed after notice of the defects. And it can hardly be supposed the Legislature intended the company should forfeit their entire charter for a less fault than that for which they have so guardedly imposed a small specific penalty. Now the general allegation of want of repair, at the beginning of the second replication, fails to show that the road was rendered unsafe or inconvenient by reason of want of repair, or to show any continuance of the deficiencies complained of. It charges only that it was out of repair on a certain day. These defects are supplied in the following portion of the replication by saying, “and the planks thereof were in many parts of said plank road displaced, warped and rotten, so that the said plank road was and still continues dangerous and inconvenient to pass over.” From these premises it proceeds to draw the conclusion that the road was out of repair, and to demand a forfeiture. It is therefore manifest that the whole allegation, taken together, amounts only to the assertion that the road was in many places so out of repair as to be inconvenient and dangerous: and this is a clear admission that in other portions it was not thus out of repair. It should therefore have distinguished the respective portions.
We have thus far considered the case as it depends upon the charter (and the act of 1848 a part of the charter), under which the company obtained their corporate rights. But the relator insists that, by the second section of the act of February 12th, 1855 — Comp. L. §1933 — the franchise is forfeited for the entire road, by a failure, as to any part of the road, to comply with this section. This brings us to the third replication, which appears to be framed entirely upon this section. As this section does not expressly refer to roads already existing under previous acts, I am inclined to think that, upon settled rules of construction, it should not be held to apply to such roads. “ Nova constitutio futuris formam debet imponere et non prceteritis.” See opinion of Kent J. in Dash v. Vankleeck, 7 Johns. 477 and authorities cited.
But if intended to apply to roads already constructed, it may be doubtful whether this section was intended to impose any additional obligation as to the condition of the road, beyond what was already imposed by the sixteenth and twenty-third sections of the act of 1848. By the sixteenth section of that act, the road was required to be constructed so as to have “ at least sixteen feet width of good, smooth and permanent road, eight feet of which at least should be of plank not less than three inches thick,” &c. By the second section of the act of 1855, just referred to, the company are required “ to cause to be laid down and kej>t closely together the plank upon its road, and in case of default it shall forfeit the right to receive any toll upon such road.” If not intended to impose any new obligation, then the penalty of forfeiture of the whole charter is in reality imposed for a violation of the act of 1848, under which, as we have already seen, the whole could not be forfeited for this cause, if the five miles first constructed were kept in repair. The act of 1855 then imposes the penalty of entire forfeiture, while by the original act, which constituted the contract between the State and the company, a partial forfeiture only - was allowed. On the other hand, if the act was intended to require the road to be kept in a more perfect condition than required by the act of 1848, then it not only imported a new and additional term into the contract, but imposed a forfeiture of the whole franchise for a violation of the new term thus imposed. In either view the act, in its application to roads already constructed by companies not having assented to it, must, I think, be void, as conflicting with the Federal Constitution; nor do I think it can be justified as a police regulation, under what is usually denominated the police power. Powers, the exercise of which can only be justified on this specific ground, and which would otherwise be clearly prohibited by the Constitution, can be such only as are so clearly necessary to the safety, comfort or well being of society, or so imperatively required by the public necessity, as to lead j to the rational and satisfactory conclusion, that the framers of the Constitution could not, as men of ordinary prudence and foresight, have intended to prohibit their exercise in the particular case, notwithstanding the language of the prohibition would otherwise include it.
No such conclusion, I think, can reasonably be drawn in the present case. By the express provisions of the act of 1848 (§§16 and 28) which constituted the contract, both the convenience and safety of travel had been expressly contracted, and amply provided for, and the penalty •for a breach of the obligation expressly agreed upon, or left to result from the provisions of the law then in force. And such penalties, if enforced, would amply satisfy every requirement of safety and convenience. While the act of February 12, 1855, so far as it seeks to impose any additional obligation beyond the “good, smooth and permanent road” required by the 16th section of the act of 1848, could not be required for safety, and does not appear to have been based upon this idea; and the slight additional convenience, if any, which the act of 1855 might possibly secure, is not such as to induce the belief that it wa3 not purposely and properly omitted in the original contract, nor such as to render the contract amendable at the option of one of the parties, especially where; as in this case, the contract expressly provides against such amendment. Act of Incorporation, . L. of 1848, p. 369. When the public, through the Legislature, enter into a contract for securing the public convenience, they can not be required to insist upon the highest possible degree of convenience, nor can their failure to do so render the contract amendable at their option.
The fourth replication presents, first, the question of substitution of gravel for plank, under the act of February 19, 1857 (Comp. I. §1881) and secondly, the question of repairs. This is demurred to on three distinct grounds: 1st, that it is not sufficient to oust the defendants ; 2d, that it is bad for duplicity, and 3d, for uncertainty. It is unnecessary here to notice the first objection further than to say, that as relates to the question 'of forfeiture for the cause stated, this replication stands irpon grounds analogous to those of the second relating to the question of repairs, and is to be governed by similar considerations. Upon the question of duplicity the replication is clearly bad; not because it states a great number of facts in relation to the removal of plank, and the failure in substituting gravel according to the act; as all of these facts bear upon the single point of substitution’; — but because, after having presented the issue upon this point, it proceeds to raise a distinct issue upon the question of keeping the gravel road in repair. See 1 Chit. Pl. 687. I think it also defective in certainty, in not describing in some way the portion of the road to which it was intended to apply.
The defendants, I think, are entitled, to judgment on the whole record, but the People should be allowed to amend. | [
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Campbell J.:
The only question in this case is, whether, after time given by a contract . with the principal, a surety who promises to pay with full knowledge of the facts, is liable without a new consideration for his promise.
It is claimed that having been absolutely discharged by the extension of time, the surety’s promise is at an end; and several cases are cited to show that, where an end has been put absolutely to an obligation, no new one can be created without a new consideration.
It is unnecessary to refer at length to these authorities, or to examine into their qualifications; for the rules applying to sureties have been so long and so uniformly settled on their own basis, that any attempt to unsettle them would be unauthorized, and would only lead to confusion.
The doctrine that a surety is discharged by the extension of time to his principal, or by any other modification of the contract assured, is not a common law doctrine in its origin, and arose from the practice of Courts of Equity in relieving sureties against liability under such circumstances. There are some cases, even yet, where a court of law can not give complete relief for such causes. The general doctrine, however, has for a long time been allowed to prevail in common law courts; and such a defense may always 'be entertained where the suretyship appears on the instrument sued upon,’’ and in many cases where it does not appear.
But it has always been confined to cases where there has been neither prior nor subsequent assent given by the surety. And in every case where, with knowledge of the facts, a surety recognizes his liability, and promises to pay the debt, such promise is applied to the original debt, and requires no new consideration. This has been expressly decided repeatedly, and is recognized without exception by all the respectable text writers. — Mayhew v. Crickets, 2 Swanst. 185; Smith v. Winter, 4 M. & W. 454; Stevens v. Lynch, 12 East, 38; Bank v. Johnson, 9 Ala. 622; Fowler v. Brooks, 18 N. H. 240; Sigourney v. Wetherell, 6 Met. 553; Tebbetts v. Dowd, 23 Wend. 379; Smith Merc. L. 554; Edwards on Bills, 171; 1 Pars. on Cont. 512, note (x); Chitty on Bills, 448; 2 Lead. Ca. in Eq. Part 2, 363, 383; Burge on Suretyship, 209.
The charge of the court was correct, and the judgment should be qffirmed.
Manning and Ciiristiancy, JJ., concurred. | [
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] |
Campbell J.:
Plaintiff sued defendants upon a joint indebtedness— Todd only being served with process. He set up in bar that plaintiff had recovered a judgment in New York upon the same claim. The judgment relied on was rendered in that State in form against both defendants, but upon personal service against Jacox alone.
The questions which are presented relate first, to the effect of such a judgment upon the original demand when set up in this State; and second, to the sufficiency of the evidence to establish such a judgment.
It is claimed on behalf of the defendants, that the New York judgment extinguished the original demand entirely, and that plaintiff was thereafter either entirely without remedy, or confined to a suit or other proceeding upon that judgment.
It was decided in Candee v. Clark, 2 Mich. 255, that a judgment against one joint debtor operated as a merger, and put an end to any action on the original contract against either. This decision was in' accordance with an unbroken line of decisions at the common law, whereby a party electing to take a higher security, and thereby put an end to the liability of one debtor upon the contract, deprived himself of any further claim against the other by destroying the only joint demand. A party must always take such consequences as the law annexes to his election of remedies. And such were the consequences at common law where a sole judgment was obtained on a joint demand. The reasons are perhaps not as satisfactory as they might be, but the law was clear. There was nothing before the court in Candee v. Clark, to affect the common law rule.
While, however, at- the common'] law such was the effect given to a common law judgment rendered in England, yet no such consequences attended a foreign judgment. A party might sue upon his original cause of action, or he might bring assumpsit upon the foreign judgment, which was regarded as mere evidence whereon to base a demand, and of no higher character than a simple contract: — Hall v. Odber, 11 East, 118; Smith v. Nicolls, 5 Bing. N. C. 208.
Were it not for the Constitution of the United States, the judgments of sister States would be loft on the footing of foreign judgments; and- until the case of Mills v. Duryea, 7 Cranch, 483, was decided, they were very frequently, if not generally, regarded as open to the same investigation, and as not operating to merge the debt or demand sued upon: — Bartlett v. Knight, 1 Mass. 401; Hitchcock v. Aicken, 1 Caines, 460; Taylor v. Bryden, 8 Johns. 173; Pawling v. Wilson, 13 Johns. 792. But under the Constitution and laws of the United States, the judgment of one State is to have the same credit in another State as it has by law or usage in' the courts of the State where it is rendered.
As the judgment rendered in Now York against the defendants impleaded before us was without any service of process against Todd, and he never appeared in the suit, it can have no binding force upon him personally. This is a principle of universal justice/and has been directly applied to a similar judgment rendered in New York and sued upon in Louisiana, in the case of D'Arcy v. Ketchum, 11 How. 165. And the Court of Appeals of New York has decided expressly, that no claim can be averred against defendants jointly as arising out of such a judgment, because it has no validity as a personal judgment against the party not served and not appearing: — Oakley v. Aspinwall, 4 Comst. 514; S. C. 3 Kern. 500.
The question then arises whether, notwithstanding the insufficiency of such a judgment to create a personal liability against one of the defendants, its effect is to put an end to the original contract. No one can question fhe power of any State to regulate the forms of remedy in its own way against those who are personally served within its jurisdiction. And should a State impose upon a party suing in its courts upon a simple contract the ex- tinguishment of that contract by a judgment which should not bind all of his debtors, we are not prepared to say that such a consequence could not be lawful. But if the laws of New York have imposed no such conditions upon parties suing under their joint debtor acts, we should be giving their judgments more than their domestic force, were we to impose them. This is very clearly explained in the case of Suydam v. Barber, 18 N. Y. 468. In that case, a suit was brought in New York on an original demand, against several defendants, and it was set up in bar that a sole action had been brought and a sole judgment been obtained against one of them in Missouri, whereby it was claimed the debt was merged. It appeared, however, that the law of Missouri provided that actions might be brought against any one or more of joint debtors, and that their obligation should be regarded as joint and several. TJpon this the defense was held invalid. The court say, “according to the common law of this State, a judgment against one of several joint debtors, obtained in an action against him alone, is a bar to an action against the others: — (Robinson v. Smith, 18 Johns. 459; Pierce v. Kearney, 5 Hill, 82; Olmstead v. Webster, 4 Seld. 413.) It is held to be a bar upon the ground that, by the recovery of the judgment, the promise or cause of action, as to the party sued, has been merged and extinguished in the judgment, ‘by operation of law, at the instance and by the act of the creditor.’ This is plainly founded upon the nature and force of a judgment under our law, and not upon the idea that the creditor is deprived of his right for any other reason than that, by the first suit and judgment, he has placed himself in a position where he is unable, legally, to assert or enforce his demand. We can easily conceive that the Legislature might alter this rule, and enact that a judgment against one of several debtors should have no such effect. Such a law would be a mere modification of the remedy afforded by our own legal process, and would be within the legislative authority of the State. These observations are made as showing that the consequences of a judgment, in respect to its effect as a merger or extinguishment of the original demand, are a part of the law under which the judgment itself is rendered, just as much as are those other common consequences of judgments, that a party may have execution upon them, and that they are not re-examinable on the merits of the controversy determined by them. In all these particulars, the effect of a judgment, in the government where it is rendered, is the subject of positive regulation by that government, just as it is the subject of positive regulation by what process and what courts judgment shall be rendered at all”: pp. 470, 471. In thus holding, the court recognise the propriety of former decisions where, as in Candee v. Clark in our own State, the common law presumption has been applied to foreign judgments in the absence of any proof of its abrogation.
We are of opinion that neither the analogies of the common law, nor the reasons on which the rule is based, can apply to the statutory proceedings in question, and we think the decisions of the New York courts confirm this view.
In commencing his action, the plaintiff, instead of manifesting a desire to iook to a single defendant, sues them all. The judgment runs personally against one, but it is in form against both, and but for the want of power to reach the absentee, would be valid in every respect against both. Instead of being estopped 'from any further joint claim by entering it, the plaintiff is entitled, at any time, to bring in the remaining party by scire facias, whenever he can be found in the jurisdiction; and try the case over again as to him. In doing so he is obliged to resort to proof of the original demand; and his existing judgment can not avail him: — N. Y. Code, §§ 136, 375, 379.
The common law rule discharged the debtor who was •Hot bound by the judgment from all further liability in •any shape. But under all the New York joint debtor acts, it has been held that the judgment was no bar to a further action. Their Revised Statutes, from which uurs were, in this respect, borrowed, referred very plainly to such actions, and provided how far the judgment should he allowed to prevail as evidence. The only dispute has been whether such new action should be in form on the judgment or on the original demand. But the original demand was always to be made the real foundation of a recovery against the defendant not served in the former action. *' See Mervin v. Kumbel, 23 Wend. 293; Bruen v. Bokee, 4 Denio, 56. In Oakley v. Aspinwall, 4 Comst. 514, six out of the eight judges of the Court of Appeals held that no joint liability could be regarded as arising out of such a judgment. Jewett J. who concurred in this opinion, held that the Legislature having full power to determine in what form a remedy should be sought, the statute might permit an action upon the original demand to be in form upon the judgment, as more convenient, although anomalous. Bronson and Mullett JJ. thought the judgment should not be regarded as a ground of joint action. But no one has ever doubted the continuing liability of all parties. We can not, therefore, regard the liability as extinguished. And inasmuch as the New action must be based upon the original claim, while, as in the case of foreign judgments at common law, it may be of no great importance whether the action may be brought in form upon the judgment or on the primary debt, it is certainly more in harmony with our practice to resort to the form of action appropriate to the real demand in controversy. While we do not decide an action in form on the judgment to be inadmissible, we think the action on the contract the better remedy to be pursued.
As we do not regard the New York judgment as a bar to the action before us, it is not necessary to exam, ine the questions arising on the transcript of the judg. ment.
The judgment of the Circuit Court must be reversed» and a new trial granted.
The other Justices concurred. | [
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Campbell J.:
_ Vail recovered a judgment below, against Williams, as principal, and Beckwith and Kingsbury, as sureties on a replevin bond — Williams having become nonsuit in the original replevin suit, and Vail having recovered a judgment for the value of the property with the costs of his defense.
The errors assigned cover two points: Mrst, the ruling of the court below, whereby the right of action was maintained on the return of the execution referred to in th,e record: Second, the refusal of the court to permit evidence to show that Yail was but a part-owner of the property replevied, for the purpose of reducing damages.
We think that the court rightly excluded the evidence of the want of title in Yail. The statute allows the defendant in a replevin suit, when the plaintiff becomes nonsuit, if entitled to a return of the property to waive it, and have a judgment for the value. And in a suit on the bond the measure of damages is the amount recovered in such action of replevin, and remaining uncollected: Comp. L. §5044. Where the statute provides the exact measure of damages there is no authority to reduce it. See Dorr v. Clark, 7 Mich. 310.
But we think the court erred in the view taken of the execution and the liability of the parties upon the bond under it. The obligation of the bond, as regulated by the statute, creates no liability until an execution issued in favor of the defendant in the action shall be returned unsatisfied in whole or in part:— Comp. L. §5043. This of course means an execution which in law is such as could properly be issued on the judgment. The judgment was in favor of a defendant in replevin, and appears — as the law requires — to be for the value of the goods replevied, as assessed by the court, together with the costs of his defense. The execution is not an execution in replevin at all, but an execution for damages in assumpsit, which is an entirely different form of action. Not only is this so, but it is a plaintiff’s and not a defendant’s execution, and therefore in no sense corresponds with the judgment. It was not amended while in the sheriff’s hands, or before action brought, and does not so correspond with the replevin proceedings that any court could properly read them together as part of the same record. It was. not in any proper sense an execution upon that judgment.
The judgment must be reversed, with costs, and a new trial granted.
The other Justices concurred. | [
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Manning J.:
The objection that the heirs of Shear are not made parties, or that the bill should have been filed by them is well taken. The hill is for the specific performance of a contract for the sale of lands by Dexter to one Waldo, who assigned the contract to Shear; and is filed by complainant as administrator of Shear.
At law, a contract for the purchase of land gives the vendee no interest in the land; but the rule is otherwise in equity, which considers the vendor as to the land a trustee for the purchaser, and the vendee as to the money a trustee for the seller. The land in equity belongs to the vendee, and may be sold, devised or encumbered by him; and on his death it descends to his heirs, who take it subject to the rights of the vendor under the contract: Wing v. McDowell, Wal. Ch. 175, and cases there cited. The bill therefore should have been filed by the heirs of Shear, unless there is some statute authorizing it to be filed by the administrator.
But it is said the right of the administrator to file such a bill is given by the last section of chapter 100 of the Compiled Laws, (Vol. 2, p. 909, §3038). The title of the chapter is, “ Of the specific performance by executors and administrators of the contracts of deceased persons for the conveyance of real estate.” The performance here mentioned is a performance by executors and administrators, .and not a performance by the vendoi’. And the performance provided for in the body of the statute, is a performance by the executor or administrator of the vendor, when the proceeding is in the Probate Court, and by the heir, devisee, executor or administrator when it is in chancery.
The first section of the chapter provides that “When any person who is bound by a contract in writing to convey any real estate, shall die before making the conveyance, the Probate Court may make a decree authorizing and directing the executor or administrator to convey such real estate to the person entitled thereto, in all eases where such deceased person if living might be compelled to execute such conveyance.”
The second, third, fourth, fifth and sixth sections relate exclusively to proceedings in the Probate Court in the case provided for by the first section.
The seventh section provides that “Whenever any person who is bound by a contract in writing to convey any real estate shall die before making the conveyance, the person entitled thereto may have a bill in. the court of Chancery, to enforce a specific perfoi manee of the contract by his heirs, devisees, or the executor or administrator of the deceased party who made such contract.”
The eighth and ninth sections relate to the proceedings provided for by the preceding section.
The tenth, eleventh and twelfth sections, which apply to both courts, declare the effect of the conveyance, and provide for the recording and enforcement of the decree.
Then comes the thirteenth or last section, on which complainant relies for his standing in court. It is as follows :
“Sec. 13. If the person to whom the conveyance was to be made shall die before the commencement of proceedings according to the provisions of this chapter, or before the conveyance is completed, any person who would have been entitled to the estate under him, as heir, devisee or Otherwise, in case the conveyance had been made according to the terms of the contract, or the executor or administrator of such deceased pei'son, for the benefit of the person so entitled, may commence such proceedings, or may prosecute the same if already commenced, and the conveyance shall thereupon be so made as to vest the estate in the same persons who would have been so entitled to it, or in the executor or administrator for their benefit.”
This section must be understood and interpreted with reference to the preceding sections, with which it is so closely connected as to be meaningless without them. It was designed, and such is clearly its only effect, to extend tie remedy given by the first and seventh sections to tho vendee or Ms assignee, after the death of the vendor, to the real and personal representatives of such vendee or assignee, in case of the death of such vendee or assignee after the decease of the vendor. The language of the section is, “If the person to whom the conveyance was to be made shall die,” &c. What conveyance ? A conveyance from tbe vendor? No, for no such conveyance is mentioned in the preceding sections; but the conveyance to be made in pursuance of proceedings under the first and seventh sections of the act. That this is the conveyance referred to, appears from the subsequent language, “ shall die before the commencement of proceedings according to the provisions of this chapter.” These last words recognize a right existing in the deceased vendee or assignee, at the time of his death, to institute proceedings under the statute. So does that part of the section authorizing the executor or administrator to commence “such proceedings.” What proceedings ? Proceedings under the first and seventh sections: “ or to prosecute the same if already commenced.” Commenced by whom? By the deceased in his life time, against the representatives of th§ vendor.
In the case before us, the bill is filed against Dexter, the vendor, and others, and not against Dexter’s representatives. It is consequently not provided for by the statute, and to be sustained independent of the statute, should have been filed by the heirs of Shear.
Leave is asked to amend by making the heirs parties. Waiving the question of practice as to amendments after, appeal, there is no omission or defect in the case stated in the bill to be supplied or remedied by amendment. No amendment can be made that will entitle complainant to relief. It would bo a novel as well as dangerous practice, where A had filed a bill against B, and on the hearing it should appear C, instead of A, should have filed it, to permit A to strike out his own name as complainant and substitute C’s in its place. Such a change would not be an amendment, but the substitution of a new suit for the old one. I know of no case in which the doctrine of amendments has been carried so far. See Lyon v. Tulmage, 1 Johns. Ch. 184.
The decree of the court below must be affirmed, with costs.
The other Justices concurred. | [
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Campbell J.:
The suit below was brought on a replevin bond exe-cuted by Garret S. Swazie, as principal, and James R, Vleit, Jonathan H. Bescherer and Wilder Winslow, as, sureties. All of the sureties were served. The bond was joint and several.
Vliet appeared and pleaded, and a default was entered against the other defendants served. When the case came, on for trial, plaintiff discontinued as against Swazie and "Vleit, and took judgment against Bescherer and Winslow, This is assigned as error.
We think the objection well taken. A party can not, upon a joint and several demand, treat the demand as a Joint obligation of less than all the debtors. It must be joint as to all, or several as to all: — 1 Pars. on Cont. 12, 13. This is a well settled and very familiar doctrine.
The rule authorizing a plaintiff to discontinue against me or more defendants was not designed to change any legal rights, hut merely to enable a plaintiff who had sued more parties than he could recover against to amend his case by declaring against his real debtors. Whether a default obtained under the original declaration could stand so as to bind defendants under a new declaration, setting itp a contract with fewer parties, is a serious question which we aro not now called upon to decide. It is very clear that the declaration before ns does not set out a contract under which the plaintiffs in error were jointly ‘liable without Swazie and Vleit, and had they been sued jointly without their oo-obligors, they might have pleaded in abatement. Plaintiff could not, by the indirect process which he adopted, place them in any different position, or charge them in any way not justified by bis declaration.
Some other questions were presented, hut the view we have taken renders it unnecessary to decide them. The judgment must be reversed, with costs.
The other Justices concurred. | [
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The Court
denied the motion; holding that, as the issue raised by the pleadings was finally disposed of by the decree, the right of appeal was not affected by the reference on the collateral question of alimony. | [
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] |
Manning J.:
The bill is to foreclose a mortgage given by defendants Higgins and wife, to Thorne Deuel, and assigned by him to complainant. The other defendants are subsequent pur' chasers, against whom the bill has been taken as confessed-The defense of Higgins and wife is, that the mortgage was given to secure, in part, the purchase money of a steam engine and boiler, bought by Higgins of the mortgagee, with a warranty that the boiler would make steam sufficient to run one large upright saw for sawing logs into lumber. The engine and boiler had been used by the vendor for manufacturing lumber a number of years, but how many in all does not appear. Nor does it appear that they were in use at the time of sale, or how long previous thereto the vendor had discontinued the manufacture of lumber. They were taken down and removed quite a number of miles to Higgins’ mill, where they were put up, and the boiler, either from previous wear or some latent defect, was soon found not to come up to the requirements of the alleged warranty, and after a short time was thrown aside aud replaced by a now boiler.
Several questions were made on the argument to the admission and rejection of evidence in the court below, which, as we view the case, it is unnecessary to decide; for admitting the deposition of Blackmore, and rejecting the testimony of Thorne Deuel, as insisted on the part of the defense, the warranty, we think, is not established by the proofs in the case. There was no warranty in express terms, but it is insisted that a warranty is to be implied from the representations made by Deuel, and relied on by Higgins at the time the latter purchased. It is always, in the absence of an express warranty, more or less difficult to determine whether the declarations of a vendor are to be regarded as an expression of an opinion by him, or as an undertaking on his part for the truth of what he states. In the present case, we are relieved of this difficulty by the letters of Higgins to Deuel, of the 31st of March, 1851, August 1st, 1851, and April 9th, 1852, which are as follows;
“Flint, March 31, 1851.
T. Deuel,
Dear Sir: In consequence of the failure of the boiler we had of yon, after putting everything in order, and the total insufficiency of power to drive one upright saw, we have been obliged to stop operation and put in a new one alongside, and shall not be able to commence work again before the middle of April; all of which has been a heavy expense to us, so that we shall not be able to pay you this spring the amount going to you; will you have the kindness to extend the payment one year by paying you up the interest? if so, you will very much oblige me. Respectfully, yours,
H. I. Higgins.”
“Flint, August 1, 1851.
T. Deuel, Esq.
Dear Sir: Yours under date 2d July, was duly received; it would give me much pleasure were I prepared to meet my debt to you. Am still obliged to ask for an extension of time. The mill is now in successful operation; when we run day and night, cut from thirty-five to forty thousand a week; we now run days only and cut twenty thousand a week. The mill, as it now stands, cost four thousand dollars with all the fixtures. Prospects look fair for doing a good business the present year. I should be very glad to have you come out and see it operate, and if we can make an arrangement, will sell you one-half the mill, and run it in company. I think it would be an object for you to do so., Please let me know what you think of such an arrangement. I feel confident there is money to be made in the lumber business properly conducted.
Accept for yourself and tender to your good lady my respects. H. I. Higgins.”
“Flint, April 9, 1852.
Me. T. Deuel.
Dear Sir: In answer to yours would say, there is very little money in circulation in this part of the country, in consequence of about one hundred of our enterprising men having left this county within the last four months for California, taking some thirty thousand dollars from the county. That together with our fire and • flood makes business extremely dull, which makes it very difficult to sell goods or any other property for money, or to collect debts. It has been a large damage to me in] purchasing your engine and fixtures.
I would not give to-day, if I wanted to purchase and you had to sell the same articles, six hundred dollars. I have sold the mill on a long credit of 1, 2, 3 and 4 years, at quite a loss. As soon as I can sell property or collect my debts, will arrange my matters with you : at what time am now unable to say: will do so as soon as possible. Respectfully, yours,
H. I. Higgins.”
All of these letters were written after the boiler had proved a total failure. In his first letter, Higgins states the fact, and the injury his business sustained in consequence of it, as a reason for not being able to meet his bond and mortgage, and for soliciting an extension of the time of payment for another year on his paying the interest then due. He neither in this or either of his subse quent letters, apologizing for his delinquency and soliciting further time, so much as intimates a warranty or claim for damages, and yet nothing would have been more natural, in the circumstances in which he was placed, had he supposed himself entitled to any damages. The proper inference to be drawn from his letters, we think, is that he did not, when he purchased the engine and boiler, understand or rely on anything Deuel said as an undertaking or guaranty by him in regard to the boiler.
The decree dismissing the bill must be reversed, and the usual decree be entered for complainant for $775,26, due on 2'Ith March, 1861, with costs of both courts to be taxed. Defendants to have six months from the entry of decree to redeem in, and the proceedings to be remitted to the court below.
The other Justices concurred. | [
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North, C. J.
In his suit tried before the court without a jury, plaintiff recovered a judgment for $47,000 against the above-named defendants. The náture of plaintiff’s cause of action is set forth in the declaration, from which we quote. Defendants have appealed. Plaintiff’s declaration in addition to the common counts contains a special count which in part reads:
“William F. Caldwell, plaintiff, * * * complains of the Detroit Electrode Holder Manufacturing Company, a Michigan corporation, and Thomas S. Donnelly, jointly and severally, defendants herein, of a plea of trespass on the case upon promises, the said Detroit Electrode Holder Manufacturing Company, a Michigan corporation, and Thomas S. Donnelly, having been duly, summoned. * * *.
“2. That in the latter part of August, 1940, the defendant, The Detroit Electrode Holder Manufacturing Company, by its president, Thomas S. Donnelly, requested the plaintiff to assist him in 'laying out a■ sales plan and in the production of sales and to introduce to the manufacturer’s of war worJc and governmental agencies the product of the Detroit Electrode Solder Manufacturing Company, and have the said products approved for use on roar work. That in accordance with said request of the said Donnelly the plaintiff did lay out a sales plan and at his own expense of time and money made 3 trips to Washington, D. C., trips to Baltimore, Philadelphia, New York, and other places in behalf of the products of the said Detroit Electrode Plolder Manufacturing Company. In such effort and for such purpose he secured introductions from congressmen and various parties to government officials and war products manufacturers and placed samples of the said defendants’ products with various governmental and manufacturing heads for approval, among whom was Greorge E. Knox of the Division of Yards and Docks at Washington, D.C., and Commander W. W. Wade of the Navy Yard at Philadelphia, Pennsylvania, and that the plaintiff .secured the approval by these men and others for use of the said products in war work and in government agencies. That after making the said trips and performing the said labors on his own time and expense, the defendant, through its president, Thomas S. Donnelly, requested the continuation of his services in behalf of the defendant company and agreed to pay the plaintiff 5% of the sale price of all products purchased by government agencies or manufacturers of war products. That as a result of said approvals, the defendant company sold a large volume of its products to governmental agencies and manufacturers of war products.” (Emphasis supplied.)
Subsequently to August, 1940, the alleged date of the above-pleaded oral contract, and between. October 8,1940, and March 17,1942, 8 letters or written memorandums concerning sales of its products were written to plaintiff on stationery headed “The Detroit Electrode Holder Mfg. Co.” One of these communications was signed in the name of the manufacturing company, “By L. Wilkinson;” 3 were signed “Thos. S.- Donnelly;” and the other 4 were signed in the name of the manufacturing company, “By Thos. S. Donnelly.” All but one, relative to appointment of a sales agent by plaintiff, had to do with the commission to be paid to plaintiff on certain specified sales made for the manufacturing company. However, it seems to be agreed between these parties litigant that the various subject matters of the 8 written agreements or memorandums are not involved in this suit, and that the judgment entered in this case was founded solely on the alleged oral agreement referred to in paragraph 2 of the declaration.
Defendants’ motion to dismiss plaintiff’s bill of complaint was denied, and defendants answered. Proofs were taken in open court and at the close of the proofs defendants made motions for judgment of no cause of action, which were denied, and judg-. ment was entered for plaintiff against the corporation and Donnelly for $47,000 and taxable costs. Prior to the finding for and entry of judgment, the trial court had at first determined that plaintiff had not proven the alleged oral contract. But, on plaintiff’s motion, that finding was vacated and plaintiff was permitted to take further testimony. Judgment for plaintiff followed, as above noted.
The judgment from which this appeal is taken was entered in the circuit court in the following-form :
“Wilfred F. Caldwell, -vs-
Plaintiff
“The Detroit Electrode Holder Manufacturing Company, a Michigan corporation and Thomas S. Donnelly, jointly and severally,
Defendants.
“Judgment
“The parties again being present, the court heard the conclusion of the testimony, the arguments of counsel and finds that the defendants did undertake and promise as the plaintiff has complained against them and assessed the plaintiff’s damages at the sum of $47,000.
“Therefore, it is adjudged that the plaintiff recover his damages assessed as aforesaid with his costs to he taxed and have execution therefor.”
It is obvious both from the form and substance of the above judgment that plaintiff was not adjudicated a right to recover against the Detroit Electrode Holder Manufacturing Company as a partnership. There has been no cross appeal. Neither the record nor the briefs filed on this appeal, nor any of the other formal documents, bear a title which includes the Detroit Electrode Holder Manufacturing Company as a partnership. No service of process was made upon any individual as a member of the Detroit Electrode Holder Manufacturing Company as a partnership; No appearance was entered for the partnership. Hence, it seems too clear for controversy that plaintiff has not established a right to recover against the partnership as such, or against any individual in his capacity as a member of the partnership. In so concluding we are mindful that late in the trial of this case, when upon the examination of defendant Thomas S. Donnelly, who was called as a witness by plaintiff, it was disclosed, and is not controverted, that at the time of plaintiff’s alleged oral agreement, the business of the Detroit Electrode Holder Manufacturing Company was being carried on by a partnership composed of Thomas S. Donnelly, his son, his wife, and one Philip Bork [Bourque]. There is no question that the corporation under the name of the Detroit Electrode Holder Manufacturing Company was not organized until in December, 1941, a little more than 15 months after plaintiff claims the oral agreement was entered into in consequence of which he asserts his right to re cover. The following testimony given by Donnelly is not controverted:
“When the corporation was organized, it did not succeed to the business of the copartnership and the copartnership was not dissolved. * * * The corporation never did any business and all the business that was ever done was done in the name of the copartnership.”
Thereupon plaintiff’s counsel announced to the court:
“Your Honor, with the facts that are brought out here, we will ask that the name of the defendant be amended to the copartnership, including all of the copartners whom he has named. * * * I want to amend the name of the defendant to include the Detroit Electrode Holder Manufacturing Company, a copartnership. * * *' We have not started suit against any copartnership.”
After some colloquy the trial judge granted counsel’s motion “to include” the partnership as a party defendant. However, as hereinbefore noted, so far as appears from the record, there was no actual amendment made in this particular to plaintiff’s declaration. Nor was any process issued or served upon any one as a member of the partnership. Further, in the proceedings brought to this Court, in none of the formal documents, does the partnership, as such, appear as a party defendant in this case. In view of the foregoing, and particularly the form and substance of the judgment finally entered, it must be held that the Detroit Electrode Holder Manufacturing Company, as a partnership, is not a party to this appeal; nor has plaintiff established a right to recover against the partnership, or any of its members as such.
In so holding we are also mindful that practically at the close of the trial when hearing defendants’ motion for judgment in their favor, the circuit judge stated that judgment would be entered against “All 3 parties.” But even if it had been so entered against the partnership, because of failure to make the partnership a party litigant by proper service of process and affording it an opportunity to be heard, such judgment against the partnership would have been invalid.
The remaining issues presented by this appeal are as follows: (1) Is plaintiff entitled to have the judgment affirmed against the Detroit Electrode Holder Manufacturing Company as a corporation; and (2) Is plaintiff entitled to have the judgment affirmed as against Thomas S. Donnelly, individually?
As bearing upon the liability of the defendant corporation, upon examination by the court, Donnelly testified as follows:
“The Court: And when the corporation was organized in December of 1941, who were the stockholders ?
“A. In 1941, I think Philip Bork and myself.
“The Court: Did you ever have any dealings with this man as an individual ?
“A. With who?
“The Court: Wilfred Caldwell, as an individual?
“A. Not as an individual, no; only as a representative of the manufacturing company.”
In connection with the foregoing testimony it should be noted that the articles of incorporation disclose that the incorporators consisted of Philip Bourque, Lavina Wilkinson and Gelio D. Seghi. Donnelly further testified:
“The partnership, the partnership was the owner of the manufacturing company and sold any goods.
“The Court: And they are the owners that had dealings with the plaintiff?
“A. That is right.”
Since the record conclusively shows that plaintiffs alleged contract, in consequence of which he seeks recovery, was made approximately 15 months prior to the existence of the corporation, and there being no proof of subsequent facts which would render the corporation liable, it seems the conclusion must follow that plaintiff is not entitled to recover against the corporation as such.
The remaining issue is whether plaintiff established a right of recovery against Donnelly as an individual. The only fair construction to put upon the record is that plaintiff was fully aware that Donnelly, in any transactions he may have had with plaintiff, instead of acting in his own right and interest as an individual, was acting in a representative capacity of another entity — a corporation, as plaintiff assumed. The very fact that plaintiff joined as a defendant the corporation is an admission by plaintiff that his dealings with Donnelly were in Donnelly’s capacity as a representative of the assumed corporation, and not in Donnelly’s individual capacity. Plaintiff does not rely upon any misrepresentation, fraud or deceit on the part of Donnelly which would render him personally liable. There is no proof in the record of that character, or that the corporation was a mere artificial alter- ego through which Donnelly carried on his individual business. In consequence, we are of the opinion that plaintiff has not, in the instant case, established á right to recover against defendant Donnelly in his personal capacity.
The motions of defendant Donnelly and of. the corporation, made at the close of all the proofs, for judgment of no cause of action ■ should have been granted. In view of our conclusions hereinbefore expressed, it is not necessary to consider other defenses urged in behalf of appellants.
The judgment entered in the circuit court is re versed without a new trial; and appellants may have costs of both courts.
Dethmers, Butzel, Carr, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Boyles, J.
In January, 1949, the plaintiff traded his 1940 Nash automobile to defendants for a 1942 Nash and assumed an obligation to pay $660 difference. After using the 1942 Nash for about 2 months, plaintiff had it returned to the discount company which had financed his purchase, and brought the instant suit against the defendants, who are used-car dealers, for damages, alleging in his declaration that they “fraudulently and falsely represented the said automobile to be free of defects and in good mechanical order.” After issue was joined, the case was tried before a jury, with verdict for plaintiff. Prom the judgment entered thereon the defendants appeal. Among many questions urged for reversal, appellants’ first and principal claim is that the plaintiff failed to prove fraud.
Plaintiff went to the defendants’ used-car lot on a Saturday to trade his automobile for another used car, and took with him a friend who was in the garage business, as he stated “because I figured he knew more about used cars than I did.” Together they examined the 1942 Nash, and plaintiff took a ride in it with defendant Jaeger driving. Plaintiff did not drive the car before purchase, he was told that their insurance wouldn’t cover it. Plaintiff agreed to the trade, went home and got the title to his 1940 Nash, went back and got the 1942 Nash and drove it home. On the way, he noticed that the car toed to the left. He went back to defendants’ car lot on Monday, but did not drive the car back because something went wrong with the transmission. He told the defendants what had happened and they repaired the transmission for him. He also told them that the car toed to the left, but the defendants told him he would have to have that fixed himself, which he did. After that, the car worked all right for about a month-and-a-half until something went wrong between the transmission and the universal, whereupon plaintiff turned the car back to the discount agency and brought the instant suit for damages for fraud and deceit.
For reasons apparent in the record, plaintiff elected to rely upon fraud rather than breach of warranty. He had signed an agreement:
“Hate: 29 Jan. 1949
“I, the undersigned hereby certify that I have this day received delivery of one 1942 Nash car bearing license No GB 3603, motor No MS 8462. I have driven and tried same and found it in good mechanical condition in every detail, and I accept same in its present condition with no promise, representations, or verbal agreements, of any kind whatsoever made to me in connection with the sale of the above described car.
“I have personally examined all papers and read them before signing same. I understand there is no warranty whatever with this car unless I have received a written warranty at this time before signing this statement.” (There is no claim of written warranty.)
The only proof adduced by plaintiff to establish misrepresentation and fraud is in his own testimony. He testified:
“I asked what shape it was in. * * * They told me that it was in good shape — a nice, clean car. * ■ * * jje gapj that it was in good shape, it was a clean car.”
Plaintiff bases his claim for damages on the ground that the defendants fraudulently and falsely represented the said automobile to be free of defects and in good mechanical order. Plaintiff’s testimony does not establish a claim of fraud. Nor is he materially aided by the fact that he did not drive the car when the defendants said that it would affect their insurance. Plaintiff makes no claim that the defendants made any statements regarding the mechanical condition or operation of the automobile. There was undisputed proof that the defendants had no knowledge of any mechanical defect either in the transmission or differential or elsewhere, or any difficulty in steering the car on the road. Defendant Jaeger who drove the car for the ride with the plaintiff testified that he did not notice any difficulty or any toeing to the left. The plaintiff later had the “toeing” taken care of. In fact, so far as the record discloses, with the exception of those 2 claimed defects, it was true that the car at that time was in good shape and a nice clean car. The testimony is undisputed that it had been recently painted and its upholstery and appearance and outward condition was very good for a 7-year-old used car.
Plaintiff relies largely on Curby v. Mastenbrook, 288 Mich 676, which was not a fraud case. In that ease the plaintiff based his suit on a claim of negligence in that the defendant told the plaintiff that the car was “in perfect condition.” There is no other similarity with the case at bar.
Fraud will not be presumed and cannot be lightly inferred. Fahey v. Pell, 310 Mich 280; Gardner v. Gardner, 311 Mich 615; Dieterle v. Pearll, 312 Mich 134
“The burden rests upon those relying on fraud as the basis for the recovery of damages to establish it by clear and satisfactory proofs.” Groening v. Opsata (syllabus), 323 Mich 73.
A mere honest expression of opinion will not, although proved erroneous, be regarded as fraud. Kulesza v. Wyhowski, 213 Mich 189.
“The legal elements of fraud are stated in Candler v. Heigho, 208 Mich 115, 121, as follows:
“ ‘The general rule is that to constitute actionable fraud it must appear: (1) That defendant made a material representation; (2) that it was false; (3) that when he made it he knew that it was false, or made it recklessly, without any knowledge of its truth and as a positive assertion.’ ” Safety Investment Corp. v. State Land Office Board, 308 Mich 246.
There was undisputed testimony that the defendants had no knowledge of any defects in the transmission or other mechanical operation of the automobile. This is not one of those cases where the plaintiff: is allowed to recover damages for suppression or concealment of known facts or defects which the seller is bound to disclose. Sullivan v. Ulrich, 326 Mich 218.
Defendants’ motion for a directed verdict should have been granted. Reversed and remanded, without new trial. Costs to appellants.
North, C. J., and Dethmers, Butzel, Carr, Btjshnell, Sharpe, and Reid, JJ., concurred. | [
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] |
Reid, J.
Plaintiffs brought suit against defendant on an oral contract of insurance, as a renewal of a policy previously issued by defendant to plaintiffs through Cooper Agency, Inc., for loss which occurred under the renewal. Plaintiffs had judgment. Defendant appeals.
Plaintiffs, Edward Scheiderer and May Scheiderer, were the owners of a certain policy of insurance No OC-1920,- issued by defendant, National Union Fire Insurance Company of Pittsburgh, Pennsylvania, covering fire damage and loss to household and personal property in the amount of $1,500, dated .August 22,1945 and expiring August 22, 1948. This policy of insurance was purchased by plaintiffs from the defendant through the defendant’s agent, Cooper Agency, Inc., a Michigan corporation, with offices at 320 West Fort street, Detroit, Michigan, and was a renewal of policy No F-16771, likewise purchased by plaintiffs from the defendant through the defendant’s agent, Cooper Agency, Inc.
Cooper Agency, Inc., had for a period- of years conducted an insurance agency, and was the agent for a number of companies doing business in the State of Michigan, including the National Union Fire Insurance Company. It was the agent for the National Union Fire Insurance Company for a number of years, up to April, 1948. It is conceded that if the defendant were called as a witness it would testify that in April, 1948, the agency between Coo per Agency, Inc., and National Union Fire Insurance Company was cancelled and terminated but that no notice of said fact was given to the plaintiffs.
It is conceded that if the plaintiffs were called as witnesses, they would testify that on or about July 20, 1948, the plaintiffs requested the said Cooper Agency, Inc., for the renewal of their policy of fire insurance No OC-1920 issued by the defendant and for a removal permit; that the Cooper Agency, Inc., thereupon agreed to the renewal of said policy of insurance and to the issuance of said removal permit; that said removal permit was duly issued; that the plaintiffs had never been notified of the termination of the agency agreement, nor had they any knowledge that would lead them to believe that the agency had been terminated.
It is conceded that if the Cooper Agency, Inc., were called as a witness, it would testify that on August 20, 1948, it wrote a letter to Edward Scheiderer, 21409 Frazer road, Detroit 19, Michigan, his address, informing him that it would not be able to renew the fire insurance when the policy expired on August 22,1948. The plaintiffs would testify that this letter was never received by them.
On or about August 28, 1948, household property valued in excess of $1,500, belonging to the plaintiffs, was destroyed by fire, resulting’ in loss and damage in excess of $1,500. On October 26, 1948, the plaintiffs served proper proof of loss on the defendant.Defendant refuses to make payment of said loss.
Plaintiffs claim damages for $1,500, plus interest to the date of trial.
Defendant claims that its former agent’s authority had expired at the time of the oral agreement for renewal of the policy, and that the claimed renewal, the period covered thereby, being all in the future, the agent-is without authority to make the renewal. Defendant, further plaims that the facts and circumstances, hereinbefore recited, are not sufficient to establish a contract of insurance. Defendant further claims that the oral contract to extend 3 years in the future, is void under the statute of frauds.
In Don G. McAfee, Inc., v. Great American Indemnity Co., 289 Mich 143, 147, we say:
“Plaintiff [McAfee] had never been notified of the termination of Bronk’s agency, nor had he any knowledge that would lead him to believe that the agency had been terminated. It must follow that, insofar as plaintiff’s rights are concerned, Bronk must be considered as a general agent of defendant company.”
See authorities cited in the McAfee Case.
In the case at bar, defendant did not notify its policy holders, the plaintiffs, of the termination of the agency of Cooper Agency, Inc., and defendant is bound by the acts of Cooper Agency, Inc., within the .scope of its former agency.
An insurance policy may be renewed by parol. Massachusetts Bonding & Ins. Co. v. R. E. Parsons Electric Co. (CCA), 61 F2d 264, 268 (92 ALR 218).
“In the absence of charter or statutory provisions prohibiting them, oral contracts of renewal, as well as oral agreements to renew, are held valid. It has even been held that an insurance company may contract by parol for the renewal of a policy, although it is stipulated on the face of the policy that this shall not be done. An oral extension of the insurance so as to include additional parties or risks has also been held valid.” 29 Am Jur, pp 249, 250.
It is clear that the facts and circumstances herein-before set forth constitute a contract, and it is upon that contract that this suit is brought.
The contract in the case at bar is not void as being within the statute of frauds, although it is for a 3-year term, beginning after the date of the renewal.
“It has frequently been held that an oral contract to insure, or of insurance, is not within the provision of the statute of frauds requiring agreements not to be performed within a year to be in writing, where such agreements may be performed within a year. The liability of the insurer thereon may occur within the year by the happening of the contingency insured against.” 49 Am Jur, p 400,
The judgment appealed from is affirmed. Costs to plaintiffs.
North, C. J., and Dethmers, Bittzel, Carr, Bushnell, Sharpe, and Boyles, JJ., concurred.
CL 1948; § 566.132 (Stat Ann 1951 Cum Supp § 26.922).—Be-PORTER. | [
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] |
Dethmebs, J.
On its application and hearing had thereon defendant Michigan Associated Telephone Company was granted a rate increase by defendant Michigan Public Service Commission (M.P.S.C.) applicable to service in an area including plaintiff city of Ludington, located in Mason county. Plaintiff filed a bill for review in the circuit court of Mason county. Defendant company’s motion to dismiss for lack of jurisdiction was granted by the trial court and plaintiff appeals.
Does the circuit court for the county of Mason have jurisdiction or does it repose exclusively in the circuit court for the county of Ingham?
The defendant commission was vested by PA 1939, No 3 (CL 1948, § 460.1 et seq. [Stat Ann 1951 Cum Supp § 22.13(1) et seq.]), with all the rights, powers and duties formerly exercised by the Michigan Public Utilities Commission (M.P.U.C.) and the Michigan Railroad Commission (M.B.C.). Section 4 of the act provided that review of M.P.S.C. orders should be in the manner then provided by law for the review of orders of the M.P.U.C. and the M.R.C.
PA 1919, No 419 (CL 1948, § 460.51 et seq. [Stat Ann § 22.1 et seq.]), abolished the railroad commission and transferred all its rights, powers and duties to the public utilities commission thereby created. Section 9 of the act provided that review of M.P.U.C. orders should be in the manner then provided by law for reviewing orders of the railroad commission.
The Michigan Railroad Commission was created by PA 1909, No 300 (CL 1948, § 462.2 et seq. [Stat Ann § 22.21 et seq.]), and was given jurisdiction and powers of regulation over all common carriers as defined in the act. Section 26 of the act provided for review of railroad commission orders in any circuit court in chancery. Section 26 continued so to provide when the railroad commission was given jurisdiction over telephone companies by legislative action in 1913.
PA 1913, No 206 (CL 1948, § 484.101 et seq. [Stat Ann § 22.1441 et seq.]), gave the railroad commission jurisdiction to regulate telephone companies therein declared to be common carriers. Section 1 of the act provided that all laws so far as applicable then in force or that might thereafter be enacted regulating the transportation of persons or property by railroad companies should apply with equal force and effect to telephone companies. Section' 14 of the act provided for review of railroad commission orders relating to telephone companies in any circuit court in chancery, in terms and language identical with the review provisions of section 26 of the railroad commission act of 1909.
PA 1915, No 145 (CL 1948, § 462.26 [Stat Ann § 22.45]), specifically amended section 26 of the railroad commission act of 1909, supra, so as to restrict to the Ingham county circuit court in chancery reviews of railroad commission orders. The amendatory act of 1915 read in part as follows:
“An act to amend section 26 of act number 300 of the public acts for the year 1909, # # *
“Section 1. Section 26 of act number 300 of the public acts for the year 1909, * * * is hereby amended to read as follows:
“Sec. 26. (a) Any common carrier or other party in interest, being dissatisfied with any order of the commission * * * may within 30 days from the. issuance of such order and notice thereof commence an action in the circuit court in chancery for the county of Ingham, against the commission as defendant to vacate and set aside any such order ”
It is significant that the provisions for review in the railroad commission act of 1909 and those in the telephone act of 1913 were identical and, further, that section 1 of the 1913 act provided that all laws so far as applicable thereafter to be enacted regulating transportation by railroad companies should apply equally to telephone companies. This clearly indicated a legislative intent that both then and, equally, in the future there should be 1 method for review of railroad commission orders regardless of 'whether the cases involved railroad companies or telephone companies. The amending act of 1915 provided that thereafter any review of railroad commission orders should be in the Ingham county circuit court. Plaintiff concedes that inasmuch as the 1915 act specifically amended section 26 of the 1909 railroad commission act, thereafter all other reviews of railroad commission orders were required to be had in the Ingham county circuit court, but contends that because the telephone act of 1913 was not specifically mentioned nor expressly amended or repealed in any particular by the act of 1915, therefore, as relates to telephone companies, the provision of the 1913 telephone company act, permitting reviews in any circuit court, remained in full force and effect despite the enactment of PA 1915, No 145. With that contention we are not in accord. Had the 1915 act made mention of.no previous act whatsoever in providing simply that thereafter all reviews of railroad commission orders should be taken in the Ingham county circuit court, can there be any doubt that the contrary provisions of acts of 1909 and of 1913 would thereby, in effect, have been repealed? We think not. Nor do we see in the mention of one act and failure to mention the other the indication of a legislative intent to provide for 2 methods of review, particularly when it is considered that the act of 1915 provides for the method of review by “any common carrier” dissatisfied with “any order of the commission” (railroad commission). Those terms are all-inclusive and leave no room for the idea that orders relating to telephone companies were not thereby embraced.
In point is Southward v. Wabash Railroad Co., 331 Mich 138, in which we held that the death act of 1939 impliedly repealed article 5, sections 7 and 8, of the 1873 general railroad act, where the title of the 1939 act expressly disclosed a legislative intent to repeal inconsistent acts, provisions in the 2 acts were inconsistent and the latter act provided that “all actions for such death” should be brought thereunder; that specific reference in the latter act to certain earlier acts would not preclude construction of the latter act as impliedly repealing inconsistent acts not specifically referred to, and that repeal by implication may occur even though that effect is not expressed in the title of the latter act. The mere fact that the title of the 1915 railroad commission act did not, as in the ease of the 1939 death act, expressly disclose a legislative intent to repeal all inconsistent acts, does not impel to a different conclusion when it is noted that the language of the body of the 1915 railroad commission act is fully as expressive of a legislative intent to repeal inconsistent prior acts as in the case of the 1939 death act. Likewise, the pro-
visions of the 1915 act and the 1913 act relating to which circuit court shall have jurisdiction to review railroad commission orders are as inconsistent as those considered in the Southward Case. Furthermore, the terms “any common carrier” and “any order of the commission” contained in the 1915 act are as all-inclusive as the language “all actions for such death” in the 1939 death act which we considered in the Southward Case to be persuasive of a legislative intent to repeal inconsistent provisions of prior acts. While we are favored with a review of rules of statutory construction and citations to the effect that repeals by implication are not favored, all of which are no doubt helpful under certain circumstances, in the final analysis legislative intent as expressed in the act must remain the guiding star. Here the identical provisions of the .1909 act and the 1913 act relating to judicial review, the mentioned provision of section 1 of the 1913 act and the all-embracing terms of the 1915 act leave no doubt concerning the legislative intent that after the effective date of the latter all reviews of’ the kind here in question should be had in the Ingham county circuit court in chancery.
Affirmed, with costs to defendant Michigan Associated Telephone Company only, the other defendant having filed no brief in this Court.
North, C. J., and Btjtzel, Carr, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred.
PA 1939, No 297 (CL 1948, § 691.581 et seq. [Stat Ann 1949 Cum Supp § 27.711 et seq-l) •—Reporter.
PA 1873, No 198 (CL 1948, §§ 467.7, 467.8 [Stat Ann §§ 22.288, 22.289] ).—Reporter. | [
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] |
Butzel, J.
Plaintiffs, copartners doing business as the Century Finance Company, purchased promissory notes from the holders thereof at a discount and for less than the face amounts of the principal or balances due on such notes, and when and if paid, realized a profit over and above the amounts paid for the notes. Notwithstanding their claim that they were not legally liable for an intangible tax of $2,103.21 for such discounts or profits realized from this source over a period .of 3 years, they paid additional assessments for the disputed amounts, and brought suit for the recovery of the amounts so paid against the State, the department of revenue and its commissioner. All parties moved for a summary judgment, only a question of law being involved. The trial judge rendered judgment in favor of defendants and plaintiffs appeal.
The following part of what we shall term the intangibles tax act, PA 1939, No 301, as amended (CL 1948, § 205.131 et seq. [Stat Ann 1950 Rev § 7.556(1) et seq.}), provides:
“See. 1. That when used in this act: * * *
“(b) The term ‘intangible personal property’ means: Moneys on hand or on deposit or in transit, shares of stock, and other units of interest, in corporations, joint stock companies, and other associations conducted for profit (not, however, including the interest of a partner under a partnership agreement) ; securities which constitute a part of an issue of similar securities, such as bonds, certificates of indebtedness, debentures, notes, and certificates of deposit therefor; annuities; accounts and notes receivable, land contracts receivable, real estate and chattel mortgages receivable, conditional sale contracts receivable, and other obligations for the payment of money; equitable interest in any of the foregoing classes of intangible personal property, including interest of beneficiaries under trusts whether created inter vivos or by will; and any and all other credits and evidences of indebtedness; whether such intangible personal property is secured or unsecured. * * *
“(d) The term ‘income’ includes: (1) Interest received upon intangible personal property; (2) dividends and other distributions, whether in the form of cash or property, to the extent that they represent the yield of intangible personal property; and (3) all other earnings or yield of intangible personal property regardless of the name by which des-, ignated: Provided, that for the purpose of computing the tax imposed under this act, the gross income, including taxes, charges and other deductions which may be made therefrom, shall be the basis upon which the tax shall be measured. # * *
“(j) The term ‘face value’ means the amount appearing on the face of the instrument or other written record evidencing the intangible personal property, or in case there is no instrument or other written record, then the amount shall be determined by other evidence satisfactory to the commission, re duced by payments, if any, which have been made .thereon. t ‘
• “Sec.- 2:" * * * For the calendar year 1940, and for each year ..thereafter or portion thereof there, is hereby levied upon each resident or nonresident owner of intangible personal property not hereinafter exempted having a situs within this State, and there shall be collected from such owner an annual specific tax on the privilege of ownership of each item of such property owned by him. Except as hereinafter provided the tax on income-producing intangible personal property shall be 3 per cent, of the income but in no event less than 1/10 of 1 per cent, of the face or par value of each item (or in the case of corporate stock or other evidence of corporate ownership having no par or face value, of the average per share contribution to capital, surplus and other funds in consideration of which all of the then outstanding shares of stock of the same class of such corporation shall have been issued). Except as hereinafter provided the tax on nonincome-producing intangible personal property shall be 1/10 of 1 per cent, of said face, par or contributed value.”
Under the wording of the law, does it cover these discounts or profits for which plaintiffs have been obliged to pay the intangible tax? Under authority of section 12 of the act, the department of revenue adopted rules which would include such discounts as earnings or yield. It needs no citation of authority that under the rule-making power an administrative-board may not extend the scope of a tax statute so as to include a tax on discounts if the statute does not expressly provide for such tax. It is also a principle of law that the scope of tax laws may not be extended by implication or forced construction. In re Dodge Bros., 241 Mich 665; Standard Oil Co. v. State of Michigan, 283 Mich 85. In the latter case we quoted from Gould v. Gould, 245 US 151 (38 S Ct 53, 62 L ed 211), as follows: '
“In the interpretation of statutes levying taxes, it is the es tablished rule not to extend their provisions, by implication, beyond the cl&ar import of the language used, or to enlarge their operations so as to embrace matters'not specifically pointed out. In case of doubt they are construed most strongly against the government, and in favor of the citizen.”
So as to avoid any question, it should be stated that this case does not involve the discounting of interest-bearing notes, where' the interest in the form of a discount is paid in advance, nor does it cover cases where a form of contract is used in the purchase of accounts receivable for the purpose of covering up the exaction of interest in excess of the rate permitted by law. Abeloff v. Ohio Finance Co., 313 Mich 568. The notes in the instant case bore interest. There was an absolute sale at a discount or at a profit if plaintiffs collected an amount in excess of the purchase price. The transactions were complete at the time of the purchase. The notes could not bring in more than their face amount at the time of purchase. No earnings or yield were realized from the notes after the purchase, except the interest on them. Had plaintiffs purchased shares of stock and subsequently they had gone up in value, and then sold, we do not believe defendants would have claimed the earnings or yield had been realized from the stock itself. The same is true if interest-bearing bonds had been purchased for less than their face value, and we believe it is true of the notes which were purchased for less than their face amounts.
The trial court in coming to its conclusions held that the department of revenue in setting up its rules and regulations was justified in defining discounts as bearing part of earned income. To this we cannot subscribe.
The judgment is reversed and the case remanded to the trial court with directions to enter a judgment for plaintiffs for the undisputed amount claimed by them and interest from time of payment. A public question being involved, no costs are allowed.
North, C. J., and Dethmers, Carr, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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] |
Bushnell, J.
Plaintiff Jewell Harris entered the employ of defendant Checker Cab Manufacturing Corporation at Kalamazoo in 1945. She was laid off in May of that year and did not return to work until July of 1948. She described her duties as “assembling work.” This consists of putting upholstery on the panels inside the cabs and wood crash pads in the bottom of the cab bodies. She testified that prior to her accident on December 2, 1948, her health had been good and that she had never experienced any pain, swelling or stiffness in any of her joints.
Leo Fleekenstein, who was in charge of the department in which plaintiff worked, testified that at one time prior to the claimed accident Mrs. Harris complained about her arm being a little lame.
According to plaintiff, shortly after she commenced work on the morning of December 2, 1948, a fellow employee, Elizabeth O’Mara, who was on her way to the rest room, gave “a little push” to a truck load of fenders or running boards, which caused the truck to pass over, the instep of plaintiff’s right foot.
Elizabeth O’Mara testified that she had no recollection of this incident, and that the first time Mrs. Harris ever mentioned it to her was in July of 1949. Fleekenstein said he had heard nothing about it until shortly before the hearing in plaintiff’s case. One of the defendant’s foremen testified that a loaded truck would weigh about 500 pounds; that the trucks used in defendant’s, plant have a large pair of cast iron wheels “in the middle” about 14 inches in diameter, with an auxiliary wheel of 6 to 7 inches in diameter at- each end of the truck.
Mrs.' Harris worked the entire day of the accident and the day following, although she said her foot pained her. Several days later she obtained a pass from Fleekenstein to see the company nurse. She worked intermittently for 10 days more.
Defendant’s registered nurse testified that she-bandaged Mrs. Harris’s foot, which was swollen but not bruised, and that on December 14th she sent her to Dr. William L. Green, defendant’s physician. Dr. Green took X-rays of her foot which showed no evidence of any bone injury. He strapped plaintiff’s foot with an elastic adhesive bandage and advised her to return to work. Mrs. Harris again visited Dr. Green on December 20th and 27th, and upon both occasions was wearing high-heeled shoes. He ad vised her to discontinue wearing these shoes, and put a plaster cast on her foot.
Plaintiff testified that while returning from Dr. Green’s office on crutches she slipped, caught herself with her right hand, and painfully injured her wrist. She later had some swelling in the joint of her right little finger. The cast was removed by Dr. Green on January 13th and he advised plaintiff to exercise her foot and finger and told her she could return to work. He also advised her to go to a hospital for a complete check-up. She failed to keep 3 subsequent appointments for such an examination. On February 23d she was urged by the comptroller of the defendant company to see another physician, and she also failed to do this, although several appointments were made for her.
Dr. William L. Green testified that he told Mrs. Harris that her condition was the result of arthritis. Dr. Sherman Andrews testified that she had a “generalized arthritisand at another point said: “I felt like this was -a rheumatoid type of arthritis.” He believed there was no relation between her arthritic condition and her injury. Dr. Warren B. Crane also found a rheumatoid arthritic condition, but said that the original injury might have a causal connection with the present condition. On cross-examination he admitted that Mrs. Harris’s arthritis might have had another cause, or no cause whatever. Dr. Robert B. Burrell stated that an injury to the foot could precipitate rheumatoid arthritis, and on cross-examination stated that there are many theorized causes such as “trauma, infection, endocrine imbalance, various metabolic disorders, circulatory difficulties.”
The deputy commissioner found that Mrs. Harris received a personal injury arising out of and in the course of her employment; that she has been paid compensation for .total disability at the rate of $21 per week for a period of 8 weeks prior to February 11, 1949, “and that the disability plaintiff has had since February 11, 1949, is not the result of her injury.” He held that she was not entitled to any further compensation.
Upon review, the commission modified the award of the deputy commissioner and awarded plaintiff compensation for total disability from February 11, 1949, and until further order.
The commission said:
“In our opinion, there are facts in this case, which justify the conclusion that the plaintiff sustained an injury arising out of and in the course of her employment on December 2, 1948, which caused her to be, and to remain, totally disabled in the general field of labor during the period for which compensation payments were paid, and since February 12, 1949.”
This general finding, standing alone, would be conclusive on review here by certiorari, because it is supported by plaintiff’s testimony. We cannot weigh the evidence or disturb the finding even if we might have reached a different conclusion on the facts. Lindsteadt v. Louis Sands Salt & Lumber Co., 190 Mich 451, and Riley v. Mason Motor Co., 199 Mich 233.
The commission’s general finding, however, is qualified by a more specific finding which reads:
“Mrs. Harris says that shortly after starting time on December 2, 1948, a co-worker who was a little late for work entered their department and proceeded to the rest room, which was nearby and close to where she was working; and, that one of the heretofore described trucks was in this employee’s way and that when the employee gave the same a little push, a wheel ran over her right foot. The record does not distinguish as to which of the wheels injured this woman’s foot, but in view of her failure to make any outcry at the time, we believe it réasonable to assume that it was one of the auxiliary wheels because one of thé load-bearing wheels would, most likely, have caused a crushing and distressing injury. She said nothing about this injury at the time, and just continued with her work, although alleging that her foot pained her the rest of the day.”
This finding indicates that the commission did ndt determine that either of the large wheels ran over plaintiff’s foot because no serious damage resulted and she made no outcry at the time. We must, therefore, find in the record some competent evidence to support the particular and specific finding that one of the auxiliary wheels caused the injury. Becker v. City of Detroit, 267 Mich 511. There is no testimony whatever in this respect.
Plaintiff was the only witness who testified that the truck ran over her foot. We also have the testimony as to the weight and construction of the loaded truck. According to plaintiff, 1 of the 4 wheels must have run over her foot. It seems impossible, in the light of the testimony as to the construction of the truck, that it could have been the auxiliary wheel. These are much smaller than the large weight-carrying wheels. It is entirely possible that the auxiliary wheels ordinarily do not touch the floor but are placed on the truck to balance it and prevent it from tipping a load. It is impossible to infer that an auxiliary wheel in the center of the front or rear of the truck could have run over plaintiff’s foot without her being struck by the main body of the truck. There is no evidence of such an occurrence.
The commission may draw legitimate and reasonable inferences from established facts and circumstances. Froman v. Banquet Barbecue, Inc., 284 Mich 44, 51; and Goudie v. Lakey Foundry & Machine Co., 327 Mich 138, 141. Inferences, however, may not be drawn which are contrary to the established facts and the undisputed evidence. Putnam v. Beechler, 299 Mich 552, 561.
The conclusion of the commission that the large wheels did not cause the injury is supported by competent testimony. But, the conclusion that an auxiliary wheel ran over plaintiff’s foot is not a legitimate and reasonable inference from the established facts. Hence, there is no competent testimony in the record before us to support the commission’s finding that plaintiff sustained an injury arising out of and in the course of her employment.
Questions pertaining to plaintiff’s refusal to submit to medical examinations- and treatment are not material in the light of our conclusion. The same observation is applicable to the questions raised regarding the medical testimony.
The award of the commission is vacated and the cause is remanded for the entry of an award denying compensation. Costs to appellant.
North, C. J., and Dethmers, Butzel, Carr, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Boyles, J.
This is an appeal from a judgment for plaintiff for damages resulting from plaintiff’s falling through a hole in the floor of a place of business run by the defendant Pinto.
Defendant Pinto operated a shoe-shining and hat-cleaning business in a leased building on Harper avenue in Detroit, in the back of which were his shoe-shining chairs. He decided to open up and finish the basement of the building and use it for his shoe-shining business. In order to use the basement for that purpose it was necessary to cut a hole through the wood floor and install stairsteps to go into the basement. To cut down the expense Pinto and some of his employees were doing the work of opening and preparing the basement for that use. Pinto concluded that the making and installing of the stair-steps was too much of a carpenter job for him and he hired the defendant Veen, a carpenter contractor, to do that work. They made no written agreement and apparently the work which was to be done by Veen was in part at least left to be decided by them as the work progressed. There is a considerable variance between the testimony of- Pinto and that of Veen as to what their agreement was. Veen testified that all he was to do was to cut a hole in the floor, make the stairs and install them. Pinto testified that he, Pinto, had nothing whatever to do with cutting the opening through the floor or in putting in the stairs.' Pinto claims that Veen was to com píete the job, 'and'to install a railing around the hole. Veen denies it. They did, however, discuss what sort of a railing was to be installed around the opening at the head of the stairs.' Whether Veen was also responsible for failing to barricade or protect that opening on September 8,1945, when the plaintiff fell through the open hole in the floor and was injured, is the principal issue of fact in the case.
Prior to September 7, 1945, Veen built the stair-steps in 'his own shop and on that date he and his helper cut an opening through the floor of Pinto’s place of business and put the stairsteps into place. Veen claims that was all he was to do. Pinto testified that there was still some work for Veen to do, under their agreement, both in installing the stairs as well as putting a railing around the top. They did, on September 7th, discuss and apparently agree upon such a railing to consist of small square painted spindles. They had previously discussed what kind of a railing should be built but Pinto had not concluded what it should be until September 7th. On that day Pinto left the store somewhere about 4:30 or 5 o’clock. Veen and his helper were still there although they were picking up their tools getting ready to leave. Veen offered to help “straighten up the place” but Pinto said he was going to take care of everything and clean up. Before Pinto left he instructed some of his employees to pile up the loose boards and clean up the place. Nothing was said about a railing or other protection for the hole in the floor. Veen and his helper left shortly afterward. The hole through the floor was left open and unprotected.
The next morning about 9:30 Pinto returned to the store and went in with 2 of his employees and plaintiff then came in. ' Plaintiff was after a hat he had left, gave Pinto the hat check and a dollar bill, and when Pinto had some difficulty in finding plain tiff’s hat and while plaintiff was attempting to help Pinto look for it he fell through the open hole near the counter and was injured.
Plaintiff sued both Pinto and Veen as well as the owners of the building claiming joint and several liability and concurrent negligence. The case against the building owners was dismissed on motion and the case went to the jury on issues of fact whether either or both Pinto and Veen were guilty of negligence in leaving open the hole through the floor, also whether Pinto was guilty of negligence in failing to provide a safe place for the public to use his store. During the trial Veen moved for a directed verdict at the close of plaintiff’s testimony • and again at the close of all the testimony. The court reserved decision* submitted the ease to the jury which returned a verdict against both defendants Pinto- and Veen. Thereafter counsel for defendant Veen made a motion for judgment non obstante veredicto which was denied and judgment entered on the ververagainst both of said defendants. Defendant Veen appeals. Defendant Pinto has not appealed.
The principal question involved here .is whether there were issues of fact to be submitted to the jury as to whether there was any negligence of the defendant Veen and, if so, whether it was a proximate cause of the accident. Appellant Veen frankly concedes that the cause of the accident was the failure to have a railing around the hole in the floor on the morning of September 8th, and that the crucial question is “Whose failure was it to have a barricade there?” It is apparent from the charge to the jury that the case was tried and submitted on the issue of fact whether Pinto was liable for not providing a safe place of business and also whether Pinto and Veen were both guilty Of negligence in leaving the hole" open 'through the floor without any warning-sign, barricade or guardrail. The court appropriately charged the jury that in order to find a verdict against either one or both of the defendants the plaintiff must prove by a preponderance o.f the evidence that such defendant or defendants were guilty of negligence, that such negligence was a proximate cause of plaintiff’s injury, and that plaintiff himself was free from contributory negligence. All of these terms were properly defined. The court also referred to plaintiff’s claim that the relationship between Pinto and Veen was that of an independent contractor whose duty it was to barricade the opening, and submitted to. the jury as an issue of fact whether their relationship was that of an independent contractor or that of an employer and employee or master and servant. We have carefully reviewed the charge and find no merit in appellant’s claim of error in the charge in defining- contributory negligence or in submitting to the jury the questions of fact.
It is apparent from a reading of the record that there were issues of fact to be submitted to the jury to determine whether Veen was guilty of any negligence which was a proximate cause of the accident, what was the relationship between Pinto and Veen, and whether plaintiff was guilty of contributory negligence. There was testimony pro and con whether Veen had completed the work he was to perform under their agreement when he left the store about 5:30, September 7th, after Pinto had left his place of business, with the opening through the floor left unprotected. It is' admitted that when he left about 4:30 or 5 o’clock Pinto instructed his employees to do some work there cleaning up the place, putting away the boards, but there is no testimony that he instructed anyone to cover up or barricade or protect the opening through the floor. There was tes timony that it was Veen’s job to cut the hole 'and do the work of installing the stairs, and that Pinto had nothing whatever to do with that work in getting the basement ready for use. There was testimony that Veen had not yet completed his work. There was a dispute in the testimony as to what Veen was to do, how much he was to be paid for it, and what work he was to be paid for. It is admitted that later Veen did install the railing around the head of the stairs and also that some other work in connection with installing the stairs had not been fully completed on September 7th.
The question as to whose duty it was to protect the opening through the floor by a barricade or railing or otherwise developed into an issue of fact based upon the testimony as to all the circumstances. There was also a question of fact as to what was the relationship between Pinto and Veen, as well as whether Veen had completed his work. On the record before us we are not inclined to hold that there were no such issues of fact to be submitted to' the jury, or that as a matter of law Veen was not guilty of any negligence which was a proximate cause of plaintiff’s accident. Veen left the building about 5:30, September 7th, after Pinto had already left the building, without providing some protection around or over the hole he had made through the floor. Obviously the failure to protect -the hole from an accident was the proximate cause- of plaintiff’s falling through the hole and this was submitted as a question of fact for the jury.
Appellant argues quite persuasively that the plaintiff was guilty of contributory negligence as a matter of law, and relies mainly on Neal v. Cities Service Oil Co., 306 Mich 605. The facts in that case are summarized in the headnote (3) as follows:
• “Plaintiff who had passed through small, well-lighted toilet room connecting front sales room and back storeroom of gasoline filling station without having observed open trap door in floor at his right and who had stood some 5 minutes at doorway leading to storeroom was guilty of contributory negligence as a matter of law in failing to observe open trap door into which he fell as he stepped backwards.”
In the instant case plaintiff had been patronizing this hat-cleaning establishment for 10 years. Three days before the accident he had brought a hat there to be cleaned. On his return later for his hat there was nothing in particular to challenge his attention to any change. The hat counter was along the east wall of the store. The floor opening was nearer the west wall, beginning beyond and back of a counter on that side. Plaintiff gave Pinto $1 and his hat check, in front of the hat counter. When Pinto said “I don’t see your hat up here,” plaintiff looked up to help Pinto find his hat, took 1 or 2 steps and fell into the hole.
It may be conceded that rules of law are applicable only when dovetailed into the facts. In the instant case the question of plaintiff’s contributory negligence was submitted to a jury on proper instructions. The jury concluded that appellant was guilty of negligence which was, at least, one of the proximate causes of plaintiff’s injury and that the plaintiff was not guilty of contributory negligence. The case was carefully tried by able counsel before an experienced circuit judge who later denied appellant’s motion for judgment non obstante veredicto.
In White v. Herpolsheimer Co., 327 Mich 462, 470, where the trial court came to a different conclusion and on motion by the defendant set aside a verdict for the plaintiff, the Court said:
“This brings ns to a consideration of the principal issue in the case, namely, whether the trial court was correct in holding that plaintiff was guilty of contributory negligence as a matter of law. If under the testimony presented the minds of reasonable men might honestly have reached different conclusions with reference to the matter, the question was properly for determination by the jury as an issue of fact. Nezworski v. Mazanec, 301 Mich 43; Keech v. Clements, 303 Mich 69; Lane v. B & J Theatres, Inc., 314 Mich 666. * * *
“Under the testimony in the record it cannot be said that the minds of reasonable men might not differ on such issue. No claim is made that the issues of negligence, contributory negligence, and proximate cause were not submitted to the jury under proper instructions. The trial court was in error in setting aside the verdict.” ,
Much of appellant’s brief refers to many cases which would establish that' Pinto was guilty of negligence in failing to see that the open hole was barricaded or protected, and in opening, his store for the public on the morning of September 8th without providing a safe place for the plaintiff, his customer. However, the question of Pinto’s negligence is not here, as he has not appealed. But that would not establish that Veen was free from negligence as a matter of law, in leaving the open unprotected hole in the floor when he left at 5:30 on September 7th. There was a variance in testimony on the material issues of fact as to Veen’s negligence and plaintiff’s freedom from contributory negligence which properly left the several issues on those disputed questions of fact to be submitted to the jury.
Affirmed.
Carr, Bttshnell, and Sharpe, JJ., concurred with Boxees, J.
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] |
D. C. Riley, J.
Plaintiff appeals from a judgment entered on a jury verdict of no cause of action in favor of the defendant. Plaintiff’s theory at trial was that defendant, a physician specializing in the practice of otolaryngology, committed malpractice by failing to adequately advise her of the risks attendant to a surgical procedure that defendant performed on her and to which she had given her consent. The sole question on appeal concerns the admissibility of the testimony of Theresa Blanchard, a former patient of the defendant.
Plaintiff first visited Dr. Rontal in October, 1972, complaining of hearing difficulty in the right ear. After taking the plaintiff’s history and administering various tests, defendant diagnosed plaintiff as suffering from otosclerosis, the hardening of the bones in the inner ear. Plaintiff testified that defendant informed her that this condition could be corrected by a simple surgical procedure known as a stapedectomy, but that defendant did not advise her that a possibility existed that the surgery could result in a hearing loss. By contrast, defendant testified that he discussed the possible risks of the operation with plaintiff not only on her first visit but also on subsequent visits.
The stapedectomy was performed on June 11, 1973, and, as a result, plaintiff suffered a complete loss of hearing in her right ear. Based on these facts, plaintiff averred that she did not give an informed consent to the surgery because she was not fully advised of the risks of a stapedectomy and of the alternatives to surgery. The other count of her complaint alleged that defendant breached a contract to cure because defendant had assured her that the operation would be simple and successful.
Dr. Rontal testified that he fully advised the plaintiff of the risks of, and alternatives to, the surgery. On cross-examination he stated that the standard of practice in his specialty requires him to fully explain such risks and alternatives to all patients, and that he does so in all cases. With respect to stapedectomies, he stated that internationally there exists a two to four percent statistical risk of hearing loss, and that if an individual physician’s personal failure rate is higher, the standard of practice requires that the patient be informed of that fact. He further testified that he informs his patients that his failure rate is just below five percent. The jury was informed that Dr. Rontal had performed six stapedectomies in the service, approximately fourteen more while undertaking his residency and one more while in private practice at the Hauser Clinic. Dr. Rontal conceded that the only other stapedectomy he had performed in private practice had been a failure.
The plaintiff then offered to call to the stand Dr. Rontal’s former patient, Mrs. Blanchard, upon whom defendant had performed the unsuccessful stapedectomy six months prior to plaintiff’s surgery. Mrs. Blanchard also lost her hearing in the right ear. Mrs. Blanchard would have testified that she had never been advised prior to surgery that an unsuccessful stapedectomy could result in a hearing loss.
Following the trial judge’s initial ruling to disallow the proffered testimony, an offer of proof was made, after which the judge reaffirmed her decision to disallow the testimony. The court concluded that neither MRE 406 nor MRE 404(b) permitted the testimony to be admitted as substantive evidence and that permitting the testimony for impeachment purposes would violate the collateral matter rule.
This Court has held that decisions of a trial court concerning the admissibility of evidence will not be disturbed on appeal unless those decisions are clearly erroneous. People v McKinney, 88 Mich App 715, 720-721; 278 NW2d 728 (1979). Applying this standard of review, we shall consider, seriatim, each of the grounds upon which the proffered evidence was claimed to be admissible.
I
Plaintiff first contends that the proffered evidence should have been admitted as evidence that defendant had a routine, habit, or practice of failing to inform patients of risks involved in surgery. MRE 406 provides for the admission of evidence of habit as follows:
"Evidence of the habit of a person or the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.”
The dispositive question involved is the meaning of "habit”, and whether evidence of one prior act of the defendant can properly be considered evidence of the defendant’s "habit”.
McCormick has defined habit as "one’s regular response to a repeated specific situation * * * [one’s] regular practice of meeting a particular kind of situation with a specific type of conduct”. McCormick, Evidence (2d ed), § 195, p 462. The Michigan cases addressing this issue and admitting evidence of habit, although few in number, have likewise referred to such evidence as establishing a "set pattern”, or evidence of something that is done "routinely” or "has been performed on countless occasions”. Hoffman v Rengo Oil Co, Inc, 20 Mich App 575, 576; 174 NW2d 155 (1969), Mason v Lovins, 24 Mich App 101, 110; 180 NW2d 73 (1970).
The analysis in the Federal Advisory Committee note which follows FRE 406, which is identical to MRE 406, supports the conclusion that evidence of one prior incident of alleged failure to advise a patient of risks does not establish that defendant has a habit of failing to advise patients of the risks of surgery. Although the committee recognizes that there is an inevitable difference of opinion as to the extent to which instances of conduct must be multiplied and consistency of behavior maintained in order to rise to the status of habit, it also emphasizes that the adequacy of sampling and uniformity of response are key factors. The trial court’s ruling that Mrs. Blanchard’s testimony was insufficient to establish defendant’s "habit” of failing to inform patients of the risks of a stapedectomy was not clearly erroneous.
II
Plaintiffs next contention is that the proffered evidence was admissible under MRE 404(b) as evidence of defendant’s system of failing to inform his patients of the risks attendant to stapedectomies. The trial court ruled that 404(b) was not applicable on the basis that that rule applies "only to criminal matters”.
MRE 404(b) provides as follows:
"Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crime, wrongs, or acts are contemporaneous with, or prior or subsequent to the crime charged.”
It should be noted that 404(b) was adopted March 1, 1978, and supersedes the "similar acts” statute. MCL 768.27; MSA 28.1050. See People v Major, 407 Mich 394, 397, fn 3; 285 NW2d 660 (1979), People v Delgado, 404 Mich 76, 81, fn 3; 273 NW2d 395 (1978). The similar acts statute itself begins with words specifically limiting the application of the provision to criminal cases. It states that evidence which may tend to show a scheme, plan or system in doing an act is admissible where such evidence is material "[i]n any criminal case”. Like its statutory counterpart, 404(b), although written somewhat differently than the statute, also suggests that it is limited in its application to criminal cases. Of particular importance are the last four words, "to the crime charged”. In addition, the committee notes following 404(b) indicate that the rule is consistent with prior Michigan law, specifically MCL 768.27; MSA 28.1050.
The particular wording of the Michigan rule compels us to conclude that it is applicable only in criminal cases. Had the drafters of 404(b) wanted that rule to apply equally in civil cases they could have expressed their intent more clearly. They could have, for example, adopted FRE 404(b) which provides as follows:
"Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
As can be seen, the Michigan rule is nearly identical to the federal rule except that the Michigan version adds the phrase "when the same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the crime charged”.
In his treatise on evidence, Wigmore devotes an entire chapter to the topic he entitled "Other Offenses or Similar Acts, as Evidence of Knowledge, Design, or Intent”. 2 Wigmore, Evidence (Chadbourn Rev), §§ 300-373, pp 235-381. Although the bulk of that chapter analyzes similar acts evidence in the context of criminal trials, he makes the following comments with respect to the admissibility of similar acts evidence in civil proceedings:
"The foregoing principles are equally as applicable to civil cases as to criminal cases, i.e., to the use of other torts, sales, forgeries, or the like, in evidencing similar issues in civil cases. The peculiarity of the question involved is merely whether and under what conditions other similar acts are receivable to show knowledge, intent, or design as to the act charged.
"This question is of much less frequent occurrence in civil cases than in criminal cases, mainly because the issues of intent and the like are less commonly open in civil cases. But wherever knowledge or intent or design is relevant in a civil case the foregoing principles are equally applicable * * *. The salient feature is the nature of the issue and the kind of evidence offered, not the penal or the civil form of the proceeding.” Wigmore, supra, § 371, pp 378-379. (Emphasis in original.) (Footnote omitted.)
Many courts from other jurisdictions have agreed with Wigmore. In Janisse v Winston Investment Co, 154 Cal App 2d 580, 588; 317 P2d 48, 54 (1957), for example, the Court held that:
"It is well settled that evidence of other transactions to show motive, intent, knowledge, plan, and absence of mistake, in both civil and criminal cases, is admissible.”
See also Moe v Transamerica Title Ins Co, 21 Cal App 3d 289; 98 Cal Rptr 547 (1971). The California rule of evidence governing the admission of similar acts evidence is significantly different from Michigan’s rule, however. The California rule does not by its terms limit its application to criminal cases. We conclude, therefore, that the trial court did not clearly err in ruling Mrs. Blanchard’s testimony inadmissible under 404(b).
III
Plaintiff’s final contention is that the trial court erred when it ruled Mrs. Blanchard’s testimony was inadmissible as impeachment testimony. The court held that her testimony would go only to a collateral issue and that its probative value would be substantially outweighed by its prejudicial effect.
It is a well-settled rule that a witness may not be impeached by contradiction on matters which are purely collateral. Shannon v Jamestown Twp, 251 Mich 597; 232 NW 371 (1930). What is a collateral matter depends upon the issue in the case. Shannon, supra, 599, Hall v Iosco County Board of Road Comm’rs, 2 Mich App 511, 514; 140 NW2d 761 (1966).
Although often difficult to apply in practice, the collateral matter doctrine applies most often "to limit the way in which a witness may he impeached, on the theory that one cannot introduce extrinsic evidence on collateral questions”. Dolan, Rule 403: The Prejudice Rule in Evidence, 49 So Cal L Rev 220, 264 (1976). The purpose of the doctrine is closely related to the goals of the prejudice rule, MRE 403, and generally the same factors which are employed to determine whether evidence is inadmissible under 403 are used to determine whether extrinsic evidence should be allowed for impeachment purposes. Therefore, although extrinsic impeachment evidence may have some probative value, the judge must weigh this benefit against countervailing factors such as whether admission will result in or cause undue prejudice, confusion, surprise and the like, and whether admission will unduly lengthen the trial.
In the instant case, the trial court concluded that the issue of what defendant did or did not tell Mrs. Blanchard was collateral to the issue in the case at bar. We agree. While the proffered testimony would have tended to discredit defendant’s testimony that he advised plaintiff of surgery risks, the testimony was still evidence of a collateral matter and thus inadmissible. The question in this case was not whether defendant always acted in accordance with the standard of his profession, or whether he so acted with regard to Mrs. Blanchard. Rather, it was whether he acted in accordance with that standard in this case in his treatment of this plaintiff. Defendant’s alleged failure to advise a former patient, therefore, was collateral to the issue at bar, and was properly excluded. The trial judge’s determination that the proffered testimony would be substantially more prejudicial than probative was not clearly erroneous. Plaintiff was, therefore, bound by the answer given by defendant during cross-examination. Skiff v Dickens, 38 Mich App 357, 363; 196 NW2d 481 (1972).
Affirmed.
This was the surgery performed on former patient Blanchard whose testimony regarding Dr. Rontal’s failure to advise of risks was disallowed.
Discussing the prerequisites to the admissibility of habit evidence, Wigmore notes:
“The only conditions (§ 32, supra) are (a) that they should be numerous enough to base an inference of systematic conduct, and (b) that they should have occurred under substantially similar circumstances, so as to be naturally suggestive of a system, rather than casual recurrences.” 2 Wigmore, Evidence (Chadbourn Rev), § 376, p 385.
MCL 768.27; MSA 28.1050 provides as follows:
"In any criminal case where the defendant’s motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such ¡proof may show or tend to show the commission of another or prior or subsequent crime by the defendant.”
The California rule of evidence governing the admission of similar crimes, wrongs or acts reads in pertinent part as follows:
"(a) * * * evidence of a person’s character or a trait of his character (* * * in the form of * * * specific instances of his conduct) is inadmissible when offered to prove his conduct on a specified occasion.
"(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident) other than his disposition to commit such acts.” Cal Evidence Code, § 1101 (1966).
The author wishes to acknowledge her former position in Scott v Hurd-Corrigan Moving & Storage Co, 103 Mich App 322; 302 NW2d 867 (1981). In Scott, this Court held that MRE 404(b) does not apply solely to criminal cases. Having met this issue again, and for the reasons stated in the opinion, she is now convinced that the better view is that MRE 404(b) does indeed apply only to criminal cases. | [
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V. J. Brennan, J.
Defendant was convicted by a jury of voluntary manslaughter in violation of MCL 750.321; MSA 28.553. She was sentenced to a prison term of 5 to 15 years and is appealing as of right from this conviction.
Following a violent argument between defendant and her husband, Robin DeRushia, defendant shot and killed her husband on May 27, 1979. The decedent, a veteran who lost a part of one leg in Viet Nam, suffered chronic problems with his legs, his nerves and with alcohol. There was a great deal of testimony as to decedent’s volatile nature and hair-triggered temper. The record was replete with undisputed testimony which corroborated defendant’s testimony that decedent had committed numerous past acts of physical violence toward her. There also was testimony that he had physically mistreated defendant’s children. Testimony was submitted that the decedent had a reputation in the community as a violent and hot-tempered man.
On the night of the fatal shooting defendant and her husband had gone out socially. According to defendant’s testimony, the following events transpired. While out, they ran into defendant’s brother who allegedly insulted the decedent causing him to become angry. In retaliation, the deceased struck the defendant and said "That’s for your brother”. They then returned home in acrimonious moods. The defendant went to the basement recreation room with the intention of sleeping there. This angered the husband who insisted she sleep upstairs in the bedroom. Angry words were exchanged and the deceased grabbed the defendant by the hair and threw her on the floor. The defendant called for the deceased’s son to come to her aid. The deceased persisted in his efforts to force defendant to return upstairs to their bedroom by pulling her by the hair, kicking her and dragging her up the basement stairwell. Defendant resisted in her efforts to remain in the basement recreation room. Sometime during this fracas, the decedent’s son and defendant’s daughter saw and heard the fight and left the house on their own accord to get the police but returned to the home to get the car keys. By this time, defendant and deceased had scuffled up to the top of the basement stairs. At this point, defendant slapped the deceased causing his glasses to fall off. Deceased then told the defendant, "This is the last time you’re going to hit me. You’ll never hit me again. You’ll never do anything to me again.” Defendant ran into a bathroom and locked herself in. Deceased disassembled the bathroom door and began striking her again. Defendant then ran into the master bedroom with the deceased following her.
"So, I got up and I ran into my — to the bedroom — to the master bedroom. And he come in there, and he kept hollering, 'This is the end. This is all. This is all you’re ever going to do.’ He said, 'This is the last thing.’ So, he ripped my dress off. And I had a little, tiny gold watch on, and he ripped that off of me. And he threw me on the bed. And he said he was going to get the knife — he was going after the knife. And, he said, 'This is the last of it.’.
# * *
"He threw me on the bed, and he kept saying, * * * 'It’s all over for you. This is the end.’ I got — . I was pretty terrified. He was in a different kind of rage than I had ever seen him before.
"I was petrified of him. I had been afraid of him before. I’d been scared of him, but not like this night— just the tone of his voice — the way he was acting — it just seemed like he was — was not — it wasn’t Rob. He was just like he was out of his mind for somethink [sic] that I — was not even my fault. I did not do anything.
"He was going to get that knife. * * *
"I did not want to get hurt. I did not want to get beat anymore. I did not want to get hurt.”
Defendant reached under the mattress, pulled out a gun, ran down the hall and shot the decedent. Four bullets entered the victim’s body from the back; the first bullet being the cause of death. It was stipulated that the deceased’s blood speci men contained .21% ethyl alcohol which creates the presumption that the deceased was under the influence of intoxicating liquor.
Defendant was charged with open murder. After preliminary examination, she was bound over on second-degree murder after the district court judge made findings that the facts sustain neither elements of premeditation nor deliberation necessary for a first-degree murder charge. Defendant’s defense was that of self-defense.
At the trial, defendant’s sister-in-law, Mary Ann DeRushia, was permitted to testify regarding a conversation she had with defendant approximately nine months before the fatal shooting.
The substance of the testimony was as follows. Defendant allegedly told Mary Ann of disagreements between herself and Robin DeRushia regarding his strict disciplining of her older children. Defendant allegedly said that she once had pointed a gun at him while he was sleeping and "would have killed him”. Mary Ann DeRushia did not know how long before the conversation this event actually occurred; she acknowledged that at the time of the conversation, the defendant and Robin DeRushia were divorced. Mary Ann DeRushia agreed that the nature of the conversation was that defendant DeRushia was having a problem with her husband regarding discipline or beating of the older children and that "there were times when she became so upset with that, that there may have been one time when she even thought she could kill him because that is how he treated her children”. Mary Ann DeRushia said that she mentioned the conversation to Robin DeRushia and "he took it very lightly”. Defendant DeRushia testified that she recalled no such conversation.
On appeal, defendant first claims that this testi mony was improperly admitted. She contends that it is inadmissible hearsay, totally irrelevant and fatally prejudicial. Conversely, the people contend that the testimony is relevant and necessary to show state of mind, intent, deliberation or lack of provocation or justification. Under the facts and circumstances of this case, we agree with defendant and, accordingly, reverse and remand.
Hearsay is an out-of-court statement offered in evidence to prove the truth of the matter asserted. MRE 801. In the instant case, the prosecutor was attempting to establish that defendant intended to kill her husband because she had stated at least nine months prior to the shooting that she had at some earlier unspecified time pointed a gun at his head and "would have killed him” because of his abuse of the children. He apparently hoped that the jury would infer that since she had intended to kill him previously, she must have intended to kill him on the night of May 27, 1979. Using the statement in this manner requires the belief that intent is intent, with no consideration given as to the temporariness of that intent or as to what circumstances may have provoked that intent. This is using the testimony for the purpose of asserting the truth of the matter, and, thus, is hearsay.
Since the testimony is hearsay, it can only be admitted pursuant to a recognized exception or exclusion. MRE 802. MRE 803(3) provides an exception for a statement of declarant’s "then existing” state of mind, or emotion which includes intent, plan or motive. However, this exception is not applicable since it is expressly limited to declarant’s "then existing” mental, emotional or physical condition and expressly precludes a statement of memory or belief. Mary Ann DeRushia’s testimony is not a statement of defendant’s then-existing state of mind. The statement does not indicate how defendant felt at the time she related the incident to Mary Ann DeRushia, nor does it indicate the state of her mind at the time she actually shot her husband. She was recalling and relating an incident which had occurred at some time in the unknown past. Thus, the testimony does not meet the exception provided by MRE 803(3).
Both parties relied heavily on People v Melvin, 70 Mich App 138, 144-146; 245 NW2d 178 (1976), lv den 399 Mich 817 (1977), as supporting their respective positions. There the defendant had written a letter to the victim two and a half years before he killed her stating that he was willing to kill in order to prevent her from ever leaving him. The Court stated that "the letter was still hearsay since it was a written out of court statement offered to establish the truth of the defendant’s statement that he had decided to kill his wife if the fights over her repeated departures continued”. Id., 145. The Court, however, determined that the letter was admissible as an exception to prove the declarant’s state of mind. There is, in that case, no doubt that the letter reflected the state of mind of the defendant at the time he wrote the letter — it showed his intention to kill. This was not the situation in the instant case. The letter in Melvin falls under the exception to the hearsay rule, but the statement by defendant here does not.
Alternatively, the challenged testimony may tentatively qualify as a party admission pursuant to MRE 801(d)(2)(a). A statement is not hearsay if the statement is offered against a party and is his own statement.
Once a statement is deemed an admission, however, the issues of relevancy and remoteness are raised. Melvin again applies. Recognizing that the letter in Melvin was written two and a half years prior to that defendant’s killing his wife, the Court discussed both the legal and the logical relevancy of it. The Court stated:
"Given the prosecution theory that the defendant killed his wife because she was about to leave him again, the logical relevance of the letter is clear. The argument that the letter was too old to be admitted is an attack on its legal relevancy, i.e., whether its improper prejudicial effect outweighs its proper probative value. Evaluation of those factors is entrusted to the discretion of the trial judge.” Melvin, supra, 144.
In Melvin, the Court clearly ties the relevancy of the letter to the circumstances which precipitated the defendant’s murder of his wife. This is a very important difference from the instant situation. The circumstances under which Mrs. DeRushia killed her husband were very different from the circumstances which gave rise to her purportedly aiming a gun at her husband’s head as per the testimony of Mary Ann DeRushia. The night defendant shot her husband he was attacking, he had beaten her and threatened to kill her. The night she recalled that she "would have killed him”, her statement was based on the fact that he had been beating and otherwise mistreating her children. Thus, applying Melvin, the instant testimony was neither legally nor logically relevant.
The people invite our attention to a line of cases which are cited for the proposition that "evidence of motive, of course, while not essential, is always relevant for murder”. People v Mihalko, 306 Mich 356; 10 NW2d 914 (1943). We note that relevancy is always a matter of degree, analysis and reasoning. Mihalko, and the case upon which it relies, and Melvin were all cases which involved a charge of first-degree murder where, both premeditation and deliberation were required. Moreover, relevancy means that the evidence is sufficiently probative of a fact in issue to offset the prejudice its admission produces. People v Thompson, 76 Mich App 705; 257 NW2d 268 (1977). Bare relevancy is not the sole criterion for admissibility.
Finally, we note that the Court in Melvin states that they preferred to treat the letter as a state of mind exception to the hearsay rule rather than an admission because of the remoteness issue. It is very difficult to say that an admission made so much earlier in time is relevant to a crime which occurred long afterward.
As stated previously, the testimony given by Mary Ann DeRushia was virtually irrelevant. It did not tend to prove any fact in issue. It did not show that defendant intended to kill her husband on May 27, 1979, that she deliberated or that she lacked provocation or justification. The purported intention stated by Mary Ann DeRushia was provoked by entirely different circumstances. Moreover, the circumstances which gave rise to the testified-to incident, i.e., the mistreatment of defendant’s children, were more than dissipated by the subsequent remarriage of defendant and decedent. To admit the testimony in order to prove defendant’s intent would have the practical effect of imputing intent to a defendant whenever it can be shown that at some time, under some circumstance, the defendant stated he intended to kill his victim. This is not a desired result.
For all of the above stated reasons, we are persuaded that the testimony was more prejudicial than it was probative, MRE 403. People v Wilkins, 408 Mich 69; 288 NW2d 583 (1980). Its prejudicial effect was aggravated by the prosecutor’s arguing to the jury the importance of the testimony in negating the claim of self-defense. The admission of the testimony was not harmless beyond a reasonable doubt. People v Hall, 77 Mich App 456; 258 NW2d 517 (1977), lv den 406 Mich 918 (1979), People v Wilkins, supra. It is reasonably possible that in a trial free of the above error, at least one juror may have voted to acquit defendant. This is especially true in light of the nature of the self-defense excuse and the proofs being in equipoise.
The conviction of defendant must be reversed based on the improper inclusion of the testimony of Mary Ann DeRushia. It is unnecessary for this Court to discuss the remaining three issues since they are not now dispositive.
Reversed and remanded. | [
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J. N. O’Brien, J.
Following trial, plaintiff was awarded $170,000 by a jury for the wrongful death of his son in an automobile accident. Defendant, Kent County Road Commission, appeals by right, and plaintiff brings a cross-appeal.
The defendant owns and operates a gravel pit in eastern Kent County near Lowell, Michigan, adjacent to a public park. The gravel pit in question is one of several located in District 5, in the eastern part of Kent County. Over the years, defendant has acquiesced in public use of this site for many recreational purposes, chiefly involving motor sports such as off-road vehicles, dune buggies, motorcycles, and the like. It is not contested that the property in question was not fenced, posted, or otherwise noted to be private property closed to the public. The premises were open to the public day and night, and the single use restriction was a sign that firearms were not permitted.
Commencing several years prior to the accident in which plaintiffs decedent was killed, defendant stockpiled processed gravel in large mounds. The processed gravel was used, as needed, to build and repair roads. The terrain of the gravel pit was uneven, rolling, and studded with tree stumps, boulders, and other hazards. Photographic and testimonial evidence adduced at trial established that a system of fairly well-defined roads, tracks, and trails were present, apparent to even casual observation.
Commencing in late October, 1977, defendant began earth moving operations on one mound and, over succeeding weeks, took out nearly 1,800 cubic yards of aggregate material. The material was removed from one side of the mound, leaving a crescent-shaped ring of material with a precipitous escarpment at its rear. During the course of removal, defendant’s agents and employees, truck operators, and scoop-loader operators came to realize the obvious danger created by the project. A driver coming into the gravel pit area, day or night, along well-defined trails leading to the top of the mound of dirt, from west to east, could not see that the entire back of the hill had been removed until he was at the top of a twenty-foot precipice.
In the early morning hours of November 19, 1977, plaintiffs decedent drove a Jeep C-J5, four-wheel drive vehicle off the precipice. He was killed, as were three others riding in the vehicle with him.
Defendant’s appeal raises several issues.
First, defendant alleges that it is statutorily immune from suit. MCL 691.1407; MSA 3.996(107). The well-presented argument of counsel and the narrow holdings of our Court and the Michigan Supreme Court in this subject matter have led us to examine closely the case before us. We conclude that, on the basis of the decisions in Parker v City of Highland Park, 404 Mich 183; 273 NW2d 413 (1978), and Perry v Kalamazoo State Hospital, 404 Mich 205; 273 NW2d 421 (1978), the maintenance of defendant’s gravel mining and storage operations do not enjoy statutory governmental immunity.
Given the standard imposed by Perry and Parker, that government is immune from suit only where it is engaged in those functions which are sui generis to government, we are not persuaded that the maintenance of a gravel pit, or even construction and maintenance of roads within a county road network, is a uniquely governmental activity.
Next, defendant raises a number of complex issues surrounding the plaintiffs claim, proofs adduced at trial, and the instruction of the court concerning gross negligence or wilful and wanton misconduct.
Our review of the record leads us to affirm the special jury verdicts entered in this case concluding that defendant was guilty of gross negligence or wilful and wanton misconduct. Moreover, defendant’s reliance on Thone v Nicholson, 84 Mich App 538; 269 NW2d 665 (1978), is misplaced. The active conduct of defendant in creating an obvious danger is directly opposite the defendant’s conduct in Thone. Moreover, this defendant had both notice of the seriousness of the danger and the means and opportunity to prevent disaster immediately after creating the hazard.
Initially, we reject the application of Zeni v Anderson, 397 Mich 117, 146-151; 243 NW2d 270 (1976), and 2 Restatement Torts, 2d, §§ 479 and 480 to this case. Obviously, Zeni and these Restatement sections apply only to situations where a defendant knows, or has reason to know, of a plaintiff’s helplessness and could, but for his or her own negligence, avoid injury to a plaintiff.
We note that the trial court properly ruled that the statutes applicable here, MCL 300.201; MSA 13.1485 and MCL 317.176; MSA 13.1482(6), required that the plaintiff plead and prove gross negligence or wilful and wanton misconduct in order to prevail. Thone, supra.
The unfortunate use of gross negligence and wilful and wanton misconduct as synonyms over the years have created a body of law and precedent which has serious implications for the bench and bar. We agree with the reasoning of Judge R. B. Burns in Thone, supra, that there is most certainly a difference between gross negligence and wilful and wanton misconduct and that failure to maintain a distinction blurs the separate concepts and contributes to unnecessary confusion over the various meanings of gross negligence and wilful and wanton misconduct. Gibbard v Cursan, 225 Mich 311; 196 NW 398 (1923), LaCroix v Grand Trunk W R Co, 379 Mich 417; 152 NW2d 656 (1967). Moreover, we agree that cases which have interpreted the trespass and recreational land use statutes, with the exception of Thone, have failed to see or apply the different standards of conduct properly. See Magerowski v Standard Oil Co, 274 F Supp 246 (WD Mich, 1967), Taylor v Mathews, 40 Mich App 74; 198 NW2d 843 (1972), Thomas v Consumers Power Co, 394 Mich 459; 231 NW2d 653 (1975). However, we are bound by the rationale and law of Thomas and hold that a jury submissible issue was pled and proved by plaintiff so as to avoid either a defense motion for summary judgment or a directed verdict.
The testimony of defendant’s truck drivers and equipment operators and that of the experienced police officer who investigated the accident convince us that the plaintiff has proved his case by a preponderance of the evidence. Defendant had knowledge of a situation requiring the exercise of ordinary care and diligence to avoid injury to the plaintiff’s decedent and the public. Further, defendant had, and knew it had, the ability easily to avoid the resulting harm by the exercise of ordinary care and prudence using no extraordinary measures. Finally, defendant knew that its conduct created the all too apparent threat of disaster, yet failed to use ordinary care to avoid the danger.
Defendant’s argument that "nothing could have been done” falls on deaf ears. Defendant had an absolute duty under these circumstances to obviate the danger. To have done nothing was not only grossly negligent, but wilful and wanton inaction. Having baited a trap for even the most prudent driver, defendant could not stand by idly and await a victim.
We recognize that the three-part test which the Supreme Court said was misleading in Zeni and which is questioned in Thone is misleading if applied to the situations faced by the Court in those two cases, but we have no doubt that the test and 2 Restatement Torts, 2d, §§ 342 and 343, apply here. Further, we hold that even if it does not, the facts adduced at trial go so far as to show not only gross negligence, by whatever standard, but the reckless want of care so as to put the defendant "in the class with the wilful doer of wrong”. Gibbard, supra, LaCroix, supra, 425-426.
The trial court’s instruction to the jury on gross negligence and wilful and wanton misconduct as well as its instructions on damages, read as a whole, adequately and fairly set forth the parties’ respective theories of the case and the applicable law. We find no error.
Moreover, defendant suffered no prejudice as a result of plaintiff’s counsel’s closing argument, nor was there error in the trial court’s ruling on defendant’s mistrial motion.
Finally, we hold that the Recreational Trespass Act, 1976 PA 323, MCL 317.176; MSA 13.1482(6), is constitutional. Its object, the regulation of trespass, is embodied in the title of the act. Const 1963, art 4, § 24. Moreover, the statute applies in all cases to governmental entities where the plaintiff pleads negligence as a cause of action.
Affirmed.
R. B. Burns, J., concurred.
Concerning plaintiffs claim of gross negligence or wilful and wanton misconduct, a number of witnesses testified concerning the condition at the defendant’s gravel pit.
Testimony of Gregg Phillips
"Q. [By Mr. Buchanan, plaintiff’s attorney]: Mr. Phillips, were you among the truck drivers that were involved in the removal of that gravel for a couple of days in late October of 1977?
"A. Yes.
"Q. And isn’t it true, based upon your recollection, you guys took away about a half of that pile?
"A. Yes.
"Q. And isn’t it true, that before you went out there and took away that pile which we could see in that picture, before you did that, that there was a nice, big plateau up on top where vehicles could drive up, stop, turn around and come back down?
'A. Possibly. It wasn’t too big but I think they could.
”Q. Well, you took away about half the stack, didn’t you?
'A. Half the top gone.
"Q. And you do know that if you personally went out there with your recreational vehicle — you said no qualms, you would have gone out there if you wanted to, wouldn’t you?
'A. Yes.
"Q. And you personally know there was some sort of plateau up there that vehicles could drive up on and turn around and come back down?
'A. Yes.
”Q. Now, there was something mentioned about 'noon’. Can you tell us, sir, was there a conversation with yourself and other truck drivers some noon when you guys were starting to chop away from that hill leaving that hill like that, that so-called 'obvious danger’ you talked about, was there a conversation like that?
"A. Yes.
"Q. Can you tell us, sir, about that conversation you and the other truck drivers had?
"A. Well, I don’t recall the one of us that said it. It might have been me.
”Q. What did you say?
"A. We said — I said to somebody — called him some name — some clown was going to come up this hill and go right off the top and be really surprised, and the reason I called him a name like I said, they would be kind of goofy or something because it wouldn’t be me. I would always check the other side of the hill.
"Q. I see. When you guys were talking about the obvious danger, you and a number of other truck drivers were standing around and kind of observing what we see in this picture right here. Let’s take a look at it. What you are talking about is that you could see, in that picture, there is no way you can tell that hill’s been removed?
"A. No, sir.
"Q. That is correct, isn’t it?
"A. Yes, correct.
"Q. And as you move up closer on it, as you see in that picture, there is still no way you are going to tell that hill’s been removed?
'A. No, sir.
"Q. But all of a sudden from profile you can tell there is a nice, sharp drop for somebody and what you are saying is that you and the other truck drivers recognized that — you could call him a clown, you could call him anything you want to call him — somebody that’s used to coming out there and perhaps didn’t because the jeep was down for a couple of weeks comes right over and does not know that hill has been excavated, right, sir?
'A. Yes.
"Q. And you had that conversation with you and several of your truck drivers sometime before this accident happened, didn’t you?
"A. Yes.
”Q. And you talked about that so-called ‘obvious danger’ and what could happen to some human being?
"A. Yes. We weren’t really talking about going all the way over, just if you came up to stop on top you would be surprised.
"Q. Well, when you had that conversation there were several of you guys out there talking about it, weren’t there?
"A. Yes.”
Testimony op Ed Falk
"Q. [By Mr. Kelly, plaintiff’s attorney]: In fact, Mr. Falk, you told us in your deposition and you gave an estimate, anyway, that you had taken away 30 to 40 feet from that hill, isn’t that correct?
"A. That’s my estimate.
"Q. And you also told us that you were having coffee one morning or you were having lunch, you weren’t quite sure, but there was a conversation that took place between the various drivers and possibly the loader operator?
"A. Yes, sir.
"Q. Do you recall telling me about that conversation?
"A. Well, there was just statements made that if somebody ever went flying off there they would go a hell of a long ways.
"Q. Do you recall telling me in the deposition that as you were looking at the hill — the profile of the hill that you or some of the drivers said it would really be a bitch if somebody went over on top of that hill?
"A. Yes, sir.
"Q. And that’s what they said, right?
"A. Yes, sir.
"Q. But from going in and out of that pit that day from that truck you could still see there were tracks leading right up the hill from the west side, couldn’t you?
"A. That’s a view you would have coming into the pit.
”Q. And that was undisturbed in any way, wasn’t it?
"A. No, it hadn’t been dug on that side of the hill.
”Q. There was no digging or warning signs put up that something had happened on the east side?
"A. No, sir.
"Q. From your familiarity you knew that if someone was coming into that pit, particularly from the Lowell area, they would come from that same little trail?
"A. Yes.
"Q. And they would be approaching from the west?
"A. Yes.
"Q. And there is no way they would know what happened on the east side?
"A. Not unless they had driven past and saw the east side.
"Q. But particularly if they came through there at night?
"A. True.
"Q. And you knew from your past experiences out there at that gravel pit that people did go out there at night?
"A. Yes.
"Q. And you could see, even when you were working for that road commission hauling that gravel out, that they were still coming out at night because you could see beer cans and things of this nature?
"A. Yes.
"Q. You knew people went out there and parked?
"A. Yes.
"Q. So as you and your fellow drivers were looking at that hill you recognized that there was an obvious danger, didn’t you?
"A. Yes, there was tracks going up to the top, yes.
”Q. You recognized that somebody that was familiar with that area and used to driving up that west side did not know that the east side had been taken away that they would go right off the east side?
"A. Yes.
"Q. And you recognized that they could be seriously hurt?
"A. Yes.
"Q. Or possibly killed?
"A. Yes.”
Testimony of Donald Eickhoff
"Q. [By Mr. Buchanan]: And when you were there, Mr. Eickhoff, did you assist in the getting of that wreckage, assist in the getting of the victims of the accident into the ambulance and that that sort of thing, sir?
"A. Yes.
"Q. Mr. Eickhoff, you’re there, you said, because at this particular time you were a wrecker driver and you were not really there as an official of the county road commission, were you, on the day of the accident?
'A. No, I wasn’t there because of the road commission, I was there because of my own business.
”Q. Because of your wrecker business?
"A. That’s right.
”Q. But just by coincidence, you happened to be an employee of the road commission and also the man who would normally have been the one to operate the loader, who works out at that hill; is that correct, sir?
'A. Yes.
"Q. All right. Mr. Eickhoff, when you got out there and you looked at this particular situation, as you told me in the deposition, you had an opportunity to take a walk around and to look at that hill from the west side, did you not, sir?
"A. Yes, I did.
"Q. And you could see from the west side of that hill that anybody who happened to be used to coming in there with their recreational vehicles separate, they would not — they would not be able to see what had happened on the other side of the hill; isn’t that correct, sir?
"A. Yes, I did.
"Q. And even in broad daylight, if you happened to move a little closer to that hill, as we see in this picture, you could see even at that time that it would be no way to tell what had been left just over the crest; isn’t that correct sir?
"A. That’s right.
"Q. And you saw that at that time, didn’t you? You observed that? You looked around, walked around, you looked at it, didn’t you, sir? Mr. Eickhoff?
"A. Yes.
”Q. And when you observed that, you as a loader operator also observed that whoever was there and did this did not take their loader up to the front of that hill and remove any of that gravel from right along in here, did they, sir?
"A. No, they didn’t.
"Q. Now, Mr. Eickhoff, you as a loader operator and being familiar, sir, with safe, proper operation and having worked for fifteen years in that capacity, you were familiar with the proper and safe operation of that type of equipment, weren’t you, sir?
"A. Yes.
"Q. And you were familiar with the way in which a hill or excavation or whatever ought to be left, weren’t you, sir?
"A. Yes.
"Q. And based upon your experience, the fifteen years you’ve worked in that job, based upon your knowledge and common sense and good judgment, based upon what you understood to be a policy of the government relative to how they’re supposed to leave that sort of thing, could you tell us what — how this was left, from your observation as compared to the way it should have been left?
"A Well, it was just — when the loader operator got done, he must have pulled out instead of going around and scooping up the other side a little bit, just to slow somebody down, because you can’t keep 'em out, but it would slow 'em down from going like the devil, going up the hill.
"Q. It would tell them you’d been there?
"A. Yes.
"Q. And wasn’t your reaction when you saw it it was terrible?
"A. Yes.
"Q. Isn’t that what you told me, sir?
"A. Yes.
"Q. And wasn’t your reaction when you saw that that you said that it would only take about fifteen or twenty minutes of time to take that machine you’ve got that can pick up a half a truckload of stuff in one scoop and go around the front of that hill; isn’t that correct, sir?
"A. That’s right.
”Q. He could have just come right around there, and like he’d made in the backside of the hill, he didn’t have to make it as high, but as we can see from the backside of the hill, right here, those big teethmarks, those scoop marks are made by that equipment of yours; isn’t that correct, sir? We see right in there?
"A. Not my machine.
"Q. No, not — I don’t mean your machine, I know you weren’t tjhe one that did this and left it this way, but I’m saying the scoop marks that we see at the base of that hill is the sort of thing that your machine would be able to do; is that correct, sir?
"A. Yes.
"Q. And you’re able with that machine to pick up with two scoops a truckload of that gravel, and you’re able to create what you call those scoop marks, or is there a name for that?
"A. No.
"Q. All right. You’re able to pick it up and scoop it out; isn’t that correct?
"A. That’s right.
"Q. And you’re able to create an embankment of some sort, as Mr. Haughey was talking about the reason they couldn’t go down on the east side is that they had scooped that out, because there was no access on the east side of the hill; isn’t that correct, sir?
"A. Yes.
"Q. And what you could do, you could go to the other side of that hill, which you said they should have done, right here, and they could take — that’s those scoop marks right there, and they could take out and make, not necessarily that big, but they could at least take out some scoop marks and create a wall like that; isn’t that correct, sir?
"A. Yes.
"Q. And that would certainly make it awfully difficult for anybody to come up there; isn’t that correct, sir?
"A. That’s right.
"Q. And when you observed that, you thought, you felt that whoever did the work for the road commission on this job didn’t do it the way they should have done it based upon safe operating practice; isn’t that correct, sir?
"A. Yes.
"Q. And if you had done this job and if it — if fortune had been such that you weren’t sick that day or whatever, you’d have done it; is that correct, sir?
'A. Yes.
"Q. You’d have done it because it was common sense?
"A. Yes.
”Q. And common decency, if you respect human life; isn’t that correct, sir? Correct, sir?
"A. I’d say yes.
"Q. And because it was the required policy of the government that you don’t leave it that way; isn’t that correct, sir?
’A. Yes.”
Testimony of Ray Fugitt
"Q. [Mr. Buchanan, plaintiffs attorney]: Now, Mr. Fugitt, you were among the truck drivers who was out there and took away the back side of that hill a couple weeks or so before this accident, isn’t that correct, sir?
"A. Yes, sir.
”Q. And when you guys were removing the back side of that hill like we just talked about and taken it away, you could see that that guy who happened to bring his family over there and have a picnic and the kid with the mini-bike or four-wheel drive vehicle — you guys could see what happened to that fellow, couldn’t you?
"A. Yes.
"Q. And you talked about it, didn’t you?
"A. Yes, sir, I believe we did.
"Q. And there were several of you that stood around and had that conversation, isn’t that right?
"A. That’s correct.
"Q. As a matter of fact, I don’t know if it was during a lunch break or coffee break or what it was, but you were standing there and you could see just what we could see and we talked about a moment ago, isn’t that correct?
"A. That’s correct.
"Q. And you could see this particular gravel pit, unlike all the other gravel pits in the district — well, this one didn’t have any fences. You could see that?
"A. That’s correct.
"Q. It had no sign that would tell people they shouldn’t be there. You could see that?
"A. Yes, sir.
”Q. You guys knew and it was common knowledge that people came in there with their recreational vehicles on almost a daily basis, didn’t you?
"A. Yes, sir.
"Q. And they came and could go to the top of this hill and perhaps look at the animals or whatever and that was common knowledge, wasn’t it?
"A. Yes, it was.
"Q. And as you took away the back side of the hill and you could see where someone comes up that hill on the west side just like we talked about that little kid — they can just ride on over and be all gone or seriously injured, couldn’t they?
"A. Yes, sir.
"Q. And you guys felt that was a very serious danger, didn’t you?
"A. Yes, sir.
”Q. And you talked about it?
"A. Yes, sir.
"Q. Because people had come there, they had regarded it as part of the park and thought it was part of the park and a real hazard existed for them, isn’t that right?
"A. Yes, sir.
”Q. And you felt that the people in charge should definitely have done or should have taken some action to prevent that type of tragedy, didn’t you?
"A. Correct.
"Q. And you all had that conversation, didn’t you?
"A. Several, sir, I don’t recall how many.”
Testimony of Lieutenant Walter Hudenko, Kent County Sheriff Department
"Q. [By Mr. Buchanan]: Officer Hudenko, based upon what you observed at the scene of the accident, looking at that hill from the west as a driver would see it on that day, and I want you to assume that a driver did not know that the east side of the hill or that top had been taken away, whether it be day or night, and he proceeded up the hill. Would there be any way to know that the top had been gone if you came up the west side and he didn’t know it beforehand?
"A. I would say no.
"Q. Based upon what you saw that day, as you look at the hill from the west, would that or would that not be the direction from which a vehicle would enter the area?
"A. One of the areas.
"Q. Well, I mean to get access to that recreational vehicle site, or the gravel pit; would the logical entrance way be that road that we see in Exhibit # 1, where that sign says No Firearms Allowed?
"A. Yes.
"Q. And if a vehicle entered that, even in broad daylight, and proceeded toward the mound and then proceeded up the mound, would there be any way a driver coming up that mound, based upon what you saw that day, would be able to see what would lay immediately at the top of that drop-off?
"A. Are you excluding the possibility he might go around and look?
"Q. That is exactly — I am assuming that in broad daylight we have four people coming in, and just so we don’t have any claim these four people had anything to drink, we have four people, apparently sober people, coming in there in broad daylight and driving right up the west side, driving right up that so-called road, and the west side of the mound. I want you to assume that, and tell me, would there be any way they could see what lay just over the top of the hill until they got to the top?
'A. Are we considering a speed factor?
"Q. We are saying a car or a vehicle, or a four-wheel drive or whatever, is coming up this, and based upon — whatever speed, unless he is crawling, but going 8 or 10 or 12 miles an hour, would there be any way he could see it in time to stop?
'A. There again, eliminating speed factor, he would not know until he reached the very top.
”Q. And you could see that — you could observe and that was part of your investigation the day of the accident?
'A. Yes, sir.
"Q. So the fact that this thing happened at night, could, based upon what you saw, could also have happened in the daylgiht, because of the visibility obstruction?
'A. I would say so.
"Q. And whether or not somebody was drinking or not drinking, it could happen to somebody who was perfectly sober, couldn’t it?
"A. It is feasible.
"Q. Did you find, in your investigation, that the county made any effort whatsoever to warn or advise the users of that area, for recreational vehicles, that they had taken the top away from the hill?
'A. I saw no indication there that any dirt had been removed.
"Q. Or any effort had been made to warn, is that correct?
’A. No signs or any warnings.” | [
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D. F. Walsh, P.J.
Defendant was convicted by a jury of tampering with property of a utility, MCL 750.383a; MSA 28.615(1). He was sentenced to a term of two years, eight months to four years in prison.
Defendant’s conviction arose from the following set of facts. In the early morning hours of August 31, 1979, Officer Edward Hancox responded to a report that an alarm had been set off at the Bunkman Tire Company. As he drove into the unlighted parking lot, Hancox saw defendant crouching down next to the garage. When the officer turned on his headlights, defendant approached the police car. Hancox then left his vehicle and conducted a pat-down search of defendant for weapons. Hancox found two screwdrivers in defendant’s front pocket. Defendant was placed in the back of the police car while other officers investigated the building and found that the elec trical meters had been disturbed. Defendant was then placed under arrest.
At the time of the offense, defendant was in the custody of the Michigan Department of Corrections in the Valley Inn in Kalamazoo. Defendant was involved in a transitional corrections program. Defendant’s arrest occurred on August 31, 1979, and he was subsequently arraigned and bound over to circuit court. In April, 1980, defendant filed a motion to dismiss based on the alleged violation of the 180-day rule. MCL 780.131; MSA 28.969(1). The court denied defendant’s motion on April 14, 1980, and trial commenced on May 1, 1980, 244 days after defendant’s arrest. Defendant contends on appeal that the trial court erred in refusing to dismiss the charge against him because of the prosecution’s failure to comply with the 180-day rule.
MCL 780.131; MSA 28.969(1) provides:
"Whenever the department of corrections shall receive notice that there is pending in this state any untried warrant, indictment, information or complaint setting forth against any inmate of a penal institution of this state a criminal offense for which a prison sentence might be imposed upon conviction, such inmate shall be brought to trial within 180 days after the department of corrections shall cause to be delivered to the prosecuting attorney of the county in which such warrant, indictment, information or complaint is pending written notice of the place of imprisonment of such inmate and a request for final disposition of such warrant, indictment, information or complaint. The request shall be accompanied by a statement setting forth the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner and any decisions of the parole board relating to the pris oner. The written notice and statement provided herein shall be delivered by certified mail.”
First, we must determine whether defendant was an "inmate of a penal institution of this state” while he was confined at the Valley Inn in a transitional corrections program. While admitting that "Valley Inn is technically an arm of the state penal system”, the prosecution argues that the 180-day rule is inapplicable to defendant because he had freedom to travel in the community. We find this argument unpersuasive.
The consecutive sentencing statute, MCL 768.7a; MSA 28.1030(1), applies to a "person * * * incarcerated in a penal or reformatory institution in this state”. In interpreting that statute, this Court has ruled that an individual participating in a community corrections program is "incarcerated in a penal or reformatory institution”. People v Shirley Johnson, 96 Mich App 84; 292 NW2d 489 (1980), People v Mayes, 95 Mich App 188; 290 NW2d 119 (1980). The same logic applies in this case. The fact that an individual is not confined at the Southern Michigan Prison in Jackson is not a controlling factor if the person continues to be under the control of the Department of Corrections.
Second, we must consider whether the 180-day rule is applicable in a case in which defendant would not be entitled to concurrent sentencing. The prosecutor relies primarily on People v Loney, 12 Mich App 288; 162 NW2d 832 (1968), which held that the purpose of the 180-day rule was to preserve the inmate’s right to concurrent sentencing. The Loney panel concluded that where consecutive sentencing is mandatory, the 180-day rule is inapplicable since its purpose cannot be served in such a case.
This analysis was recently rejected by several panels of this Court. In People v Moore, 96 Mich App 754, 761-762; 293 NW2d 700 (1980), this Court reasoned:
"We find no ambiguity in the 180-day rule statute that would permit us to make exceptions in the application of its plain language. Even if it were reasonable and otherwise valid to distinguish, as Loney did, between inmates who commit criminal offenses prior to incarceration and those who commit them subsequently, the distinction is one that the Legislature, not this Court, should make. However, our decision here rests not only on the concept of separation of powers, but also upon our belief that the rationale underlying Loney is no longer completely valid.
"The Loney Court justified its result on what it believed was the intent of the Legislature in passing this statute. Loney found this intent to be that inmates of state penal institutions should serve concurrent, rather than consecutive, sentences. Because inmates who commit criminal offenses while incarcerated are not entitled to concurrent sentencing, see MCL 768.7a; MSA 28.1030(1), an incarcerated defendant was not prejudiced by delay of trial. However, since Loney was decided the Michigan Supreme Court has recognized that the 180-day rule protects more than just a defendant’s right to serve concurrent sentences.
"In People v Hill, 402 Mich 272, 280; 262 NW2d 641 (1978), the Supreme Court found that the purpose of the 180-day rule was to 'secure to state prison inmates their constitutional right to a speedy trial’. As set forth in the United States Constitution, US Const, Am VI, and the Michigan Constitution, Const 1963, art 1, §20, the right of an accused to a speedy trial does not depend upon whether the charged offense was committed prior to or during incarceration for another crime. Therefore, we hold that Loney was wrongly decided and that persons such as defendant who commit crimes while incarcerated are entitled to the protection of the 180-day rule.”
Accord, People v Woodruff, 105 Mich App 155; 306 NW2d 432 (1981), People v Pitsaroff, 102 Mich App 226; 301 NW2d 858 (1980), People v Anglin, 102 Mich App 118; 301 NW2d 470 (1980). Contra, People v Ewing, 101 Mich App 51; 301 NW2d 8 (1980).
We find the Moore reasoning convincing. Accordingly, we conclude that the 180-day rule applies to defendant in the present case.
Finally, we must determine whether the trial court erred in ruling that the prosecution had met its good faith requirement of readying the case for trial. The court noted that the prosecutor had filed the information 10 days after the offense and defendant was bound over 18 days later.
The 180-day rule does not mandate an actual trial within the six-month period. It obligates a prosecutor, however, to take good faith action on the case and to proceed promptly in readying the case for trial. People v Castelli, 370 Mich 147; 121 NW2d 438 (1963). Where the prosecutor undertakes action to commence proceedings, jurisdiction thereafter will be lost only if the initial action is followed by an inexcusable delay evidencing an intent not to bring the case to trial promptly. People v Hendershot, 357 Mich 300; 98 NW2d 568 (1959).
In this case, the prosecutor did file the information 10 days after the arrest and defendant was bound over for trial 18 days later. However, the mere commencement of an action is insufficient to satisfy the requirements of the statute. People v Hendershot, supra. The record before us contains absolutely no explanation for the subsequent delay in proceedings, well in excess of the 180-day period prescribed by the rule. We conclude that defendant’s conviction must be reversed. Failure to comply with the statute deprived the trial court of jurisdiction to hear the matter.
Reversed.
J. R. Ernst, J., concurred. | [
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Allen, J.
Defendant was convicted by a jury of carrying a weapon in a motor vehicle, MCL 750.227; MSA 28.424. He also pleaded guilty to being a second time felony offender, MCL 769.10; MSA 28.1082. He was sentenced to three to seven and a half years in prison and appeals as of right.
On May 30, 1979, police officers, responding to a tip, stopped a car in which defendant was a passenger and asked for defendant by name. All three occupants offered identification and exited from the car. Police said defendant, the only passenger in the back seat, had been sitting on a .357 magnum revolver.
Sam Stueland, the front seat passenger, told police the gun was his. Defendant denied any knowledge of the gun, stating he was having severe chest pains and was oblivious to his surroundings. Defendant was arrested. The car’s driver, Greg Shafer, and Stueland were allowed to leave, although they were later told they could be charged with carrying a weapon in a vehicle.
Both accomplices testified at trial pursuant to a plea agreement that allowed them to plead guilty to a misdemeanor charge, as opposed to the felony with which defendant was charged. Stueland and Shafer testified that they came to Benton Harbor on May 30, 1979, on an amateur detective investigation, trying to find Stueland’s stereo which had been stolen two weeks earlier. In so doing, they stopped at several bars. Stueland testified that he placed his gun in the car’s trunk and both Stueland and Shafer testified that they did not see the gun again that evening until the police stopped the car.
Defendant testified that he was with Shafer and Stueland but denied having any knowledge of the gun. He testified that when the car was stopped by police he was having an angina attack and did not notice his surroundings.
On appeal defendant raises five issues, none of which was preserved for appellate review by an objection at the trial level. Failure to object at trial prevents the trial court from correcting any possible error and may result in the waste and delay of a new trial. Generally, failure to object precludes appellate review. We will nevertheless review defendant’s claims of error to avoid manifest injustice. People v Provience, 103 Mich App 69, 72; 302 NW2d 330 (1981).
Defendant first argues that he was denied a fair trial when a police officer testified that an informant told him one passenger in the car in which defendant was riding was carrying a gun. The officer testified that early on May 30, 1979, he stopped a white 1967 Camaro. The prosecutor asked if he recalled why and the officer replied:
"I had received information from a street informant of a subject in the vehicle carrying a gun.”
The officer said he asked the occupants for identification because he "was looking for a particular individual named Buschard”. The informant did not testify at trial.
Defendant argues that this response constituted inadmissible hearsay. We cannot agree. Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. MRE 801(c). When examined in its context, it is clear the question was asked as background to determine the motive for stopping the Shafer vehicle, not to prove the veracity of the informant’s tip. People v Eady, 409 Mich 356, 361; 294 NW2d 202 (1980).
Even if the statement did not constitute inadmissible hearsay, it should not have been admitted unless relevant. People v Wilkins, 408 Mich 69; 288 NW2d 583 (1980). Evidence of an informant’s tip could be admissible to demonstrate the police officer’s motivation in stopping the car, if such motives were relevant to an issue in the case. Eady, supra, 361. In the case at bar, however, motivation was not an issue, nor can we find any other relevance to this information.
We also note that testimony about the undisclosed informant’s tip violated defendant’s Sixth Amendment right to confront the witnesses against him. People v Harris, 41 Mich App 389, 391; 200 NW2d 349 (1972).
We conclude that had defendant objected to the irrelevant testimony regarding the informant’s tip, the trial court should have excluded it. We find, however, that admission of this evidence did not result in reversible error. In so doing, we recognize that a jury might infer from the informant’s tip that defendant had knowledge of the gun. This knowledge was also established by the direct testimony of both accomplices and by defendant’s prox imity to the gun when stopped by police. This unobjected to testimony was merely cumulative and did not result in manifest injustice.
Defendant next argues that the prosecution should have endorsed and produced the informant and other persons in the bar where defendant allegedly had the gun. Generally, the prosecution is required to endorse and produce at trial all res gestae witnesses. MCL 767.40; MSA 28.980. A res gestae witness is one "who was an eyewitness to some event in the continuum of a criminal transaction and whose testimony will aid in developing a full disclosure of the facts surrounding the alleged commission of the charged offense”. People v Hadley, 67 Mich App 688, 690; 242 NW2d 32 (1976). A person need not be an actual eyewitness to be presumed to be a res gestae witness; it is enough that his or her testimony would aid in developing a full disclosure of the facts. People v Abdo, 81 Mich App 635, 643-644; 265 NW2d 779 (1978). It is possible that the bar patrons in the instant case may have been able to offer such information.
A defendant, however, bears the responsibility of moving for a hearing during trial, or for a new trial, before claiming on appeal that the prosecution has failed to endorse and produce a res gestae witness. People v LeFlore, 96 Mich App 557, 563-564; 293 NW2d 628 (1980). Failure to move for either will preclude appellate review unless manifest injustice will result. People v Pearson, 404 Mich 698, 723; 273 NW2d 856 (1979), LeFlore, supra.
We do not believe manifest injustice occurred in the present case. Even if the prosecution had produced bar patrons who testified that defendant carried no gun in the bar, their testimony would have been consistent with that of defendant’s accomplices, who said they did not see the gun after placing it in the car trunk. Moreover, defendant’s knowledge of the gun was established by his proximity to the gun when the car was stopped by police. This fact was the basis of the prosecution’s argument that defendant had knowledge of the gun; the testimony of the bar patrons could not have refuted this. We conclude that, even if the bar patrons were res gestae witnesses, defendant waived any error in their nonproduction.
Defendant next argues that he was denied a fair trial because the prosecutor introduced evidence that the accomplices promised to testify truthfully at defendant’s trial in return for being charged with a misdemeanor firearm offense. Generally, the fact that a codefendant pleaded guilty is inadmissible as there is a danger that a jury will infer a defendant’s guilt from that plea. Anno: Prejudicial effect of prosecuting attorney’s argument or disclosure during trial that another defendant has been convicted or has pleaded guilty, 48 ALR2d 1016, People v Lytal, 96 Mich App 140, 159; 292 NW2d 498 (1980), lv gtd 409 Mich 923 (1980). The prosecution does have a duty to disclose promises made in return for testimony on a defendant’s request or if false testimony is presented. People v Atkins, 397 Mich 163, 173; 243 NW2d 292 (1976). It is not necessarily reversible error for the prosecution to anticipate the cross-examination of an accomplice witness and raise the issue of an accomplice’s plea bargain in direct examination. Lytal, supra, 157.
In the case at bar, the prosecution’s questions went beyond mere disclosure of the fact that a plea agreement had been reached. Here the prosecutor asked each accomplice if he had agreed to testify truthfully. No Michigan case has considered whether the disclosure of an agreement to testify truthfully is permissible.
Other jurisdictions are divided over whether such evidence constitutes reversible error. In United States v Koss, 506 F2d 1103 (CA 2, 1974), cert den sub nom Layne v United States, 420 US 997; 95 S Ct 1402; 43 L Ed 2d 657 (1975), the second circuit held that the text of a plea agreement, which included a provision that the accomplice would be liable for all crimes if he committed perjury, was admissible on redirect examination of an accomplice in order to rehabilitate the witness. In United States v Creamer, 555 F2d 612, 617-618 (CA 7, 1977), the seventh circuit rejected a defendant’s argument that reference to an agreement to testify truthfully constituted impermissible prosecutorial vouching. The court found this was not an overt statement of personal belief in the witness’s veracity, and found no error. In United States v Roberts, 618 F2d 530 (CA 9, 1980), the ninth circuit held that reference to a policeman sitting in the courtroom was impermissible when the prosecutor suggested the policeman was monitoring testimony to determine if a conspirator was testifying truthfully. In dicta, the court found that reference in argument to a promise to testify truthfully may be, but not necessarily is, error. The court suggested the application of a balancing test before admitting a plea agreement containing a reference to a promise of truthfulness.
"A strong case can be made for excluding a plea agreement promise of truthfulness. The witness, who would otherwise seem untrustworthy, may appear to have been compelled by the prosecutor’s threats and promises to come forward and be truthful. The suggestion is that the prosecutor is forcing the truth from his witness and the unspoken message is that the prosecutor knows what the truth is and is assuring its revelation.
"A trial court should be alert to the problem of vouching before admitting a plea agreement containing a promise to testify truthfully. The court should consider the phrasing and content of the promise to ascertain its implications and decide whether an instruction to the jury would dispel any improper suggestions. “USING THE PROMISE IN ARGUMENT
"In addressing the third issue we consider the use which a prosecutor may make of a promise to testify truthfully once a plea agreement has been admitted.
"The prosecutor may not tell the jury that the government has confirmed a witness’s credibility before using him. Gradsky v United States, supra. He should be no more able to indicate that the government has taken steps to compel the witness to be truthful. Both of these arguments involve improper vouching because they invite the jury to rely on the government’s assessment that the witness is testifying truthfully.” Roberts, supra, 536.
The most recent relevant case is United States v Hedman, 630 F2d 1184 (CA 7, 1980). Defendants challenged the admissibility of testimony elicited by the government on direct examination of three company employees that they had been granted immunity. Defendants claimed that the testimony was inadmissible because it was used to enhance the credibility of the witnesses. The court rejected the argument saying:
" 'We find nothing improper about the question of the witness’ understanding of the terms of the immunity order in this case. There was no insinuation by the prosecutor, direct or otherwise, that the government possessed knowledge to the exclusion of the jury on the issue of the immunized witness’ veracity. Cf. United States v Creamer, 355 F2d 612 (CA 7, 1977). Further, we believe that the jury’s function of assessing credibility and weighing testimony is aided by evidence of an immunized witness’ understanding of the terms under which he or she is testifying. Indeed, such questions by the prosecution frequently provide a convenient opening for more exploration of a fertile area on cross-examination.’ [United States v Craig, 573 F2d 513, 519 (CA 7, 1978)]. We are aware of no persuasive authority to the contrary. The testimony concerning immunity in this case fails to reflect an implication that the government possessed knowledge to the exclusion of the jury on the issue of the immunized witnesses’ veracity. Moreover, the trial court instructed the jury that the credibility of the immunized witnesses was susceptible to special scrutiny.”. Hedman, supra, 1198. (Emphasis supplied.)
Based upon the state and federal decision cited above, we cannot hold that any reference to a plea agreement containing a promise of truthfulness is in itself grounds for reversal. A more accurate statement of the law appears to be that, although such agreements should be admitted with great caution, admissibility of such an agreement is not necessarily error unless it is used by the prosecution to suggest that the government had some special knowledge, not known to the jury, that the witness was testifying truthfully. In this connection, we note that Roberts, supra, was a much stronger case for the defendant than the situation in the case at bar. Roberts contained testimony of both an agreement to testify truthfully and in addition, over objection of defense counsel, testimony that the government had a detective sitting in court auditing the witness’s testimony to insure its truthfulness. It was this latter testimony, and not the fact that the agreement contained the promise to testify truthfully, that caused the Rob erts court to reverse. Accordingly, we conclude that it is not the testimony that the accomplices agreed to testify truthfully that would constitute error in the instant case. The only question is whether the prosecution’s use of such testimony constitutes grounds for reversal.
In his closing argument to the jury, the prosecutor made no reference to the plea agreement. However, the prosecutor made the following remarks, the emphasized portions of which defendant claims constitute error:
"The judge will instruct you with regard to accomplices’ testimony, and that is what Mr. Shafer and Mr. Stueland really are, they are accomplices to carrying that gun in the car, you should judge their testimony carefully. That is obvious to you, I am sure, if a person is promised something in exchange for testifying or if they tell it in such a way that they obviously have a motive for keeping their own involvement down and playing up somebody else’s involvement, that should be judged. But I submit to you in this case it is not the case. The men have been very candid. They have admitted they were possessing or carrying a pistol in the car. In fact, Mr. Stueland and Mr. Shafer, what reason would they have for saying as they did that they didn’t put that gun anywhere but in the trunk, and that Mr. Buschard was involved in putting it in the passenger compartment and getting it underneath himself when they were stopped. If you will, their motive, if they wanted to — I mean what would they have? They have already admitted it. If it was the truth, that they somehow put it in there and as Mr. Banyon alleges, then it would be easier for them to say, yes, I put it in there. It doesn’t make any difference for their purposes that it is in the trunk or the passenger compartment or wherever. But they are telling you the way it happened because that is all they know about it.
"Now, they are going to testify that they have been allowed to plead to a misdemeanor. That you may consider also. But, that alone. They have been promised nothing about the sentence and they have testified before you here today. I submit to you when you take their testimony coupled with the officers’ testimony, the exhibits and all of the testimony, that it together with all of it should indicate to you that the defendant should be held accountable for the crime which he is charged and that he denies he has any involvement with.” (Emphasis supplied.)
We disagree on four grounds. First, in the case at bar no objection to the prosecutor’s argument was made and a curative instruction was not requested. Second, the prosecution made no reference to steps taken by the prosecution to insure that the witness would testify truthfully. Third, the trial judge did instruct the jury that the testimony of accomplices should be viewed with skepticism. That instruction was not brief or casual but consisted of more than one page of transcript and included a statement that the jury should consider whether the accomplices testified falsely in order to place guilt upon the defendant. Fourth, read in its entirety the statement appears to be a statement of the prosecutor’s conclusion that the accomplices’ testimony "coupled with the officers’ testimony, the exhibits and all the testimony, that it together” should indicate the defendant’s guilt of the crime charged. We do not find such a statement impermissible vouching. We further find that any prejudice which might have resulted could easily have been eliminated had a curative instruction been requested. Finally, we note that at the time of trial the decision in Roberts, supra, had not been announced, and consequently the trial court was without benefit of its admonitions.
Defendant raises two additional arguments which we address briefly. Defendant maintains that inadequate evidence was presented at the preliminary examination to warrant the magistrate’s decision to bind over on the charged offense. Any error that may have occurred in binding over was waived, as defendant filed no motion to quash. People v Miller, 62 Mich App 495; 233 NW2d 629 (1975). Moreover, we find that ample evidence of defendant’s knowledge of the gun was presented, as the police testified at the preliminary examination that the defendant was sitting on the gun when arrested. This information was adequate to establish that the offense had been committed and there was probable cause to believe that the defendant had committed it. Guilty knowledge could be inferred from defendant’s apparent attempt to conceal the gun. People v Beets, 105 Mich App 350; 306 NW2d 508 (1981). The magistrate did not abuse, his discretion in binding defendant over for trial.
Finally, defendant argues that the stop of Shafer’s car and the arrest of defendant violated defendant’s Fourth Amendment protection against un reasonable searches and seizures. We believe that the investigatory stop of the automobile was reasonable, based on the informant’s tip, which was verified by police observation. People v Whalen, 390 Mich 672, 682; 213 NW2d 116 (1973). Once the car was properly stopped, police observed a gun in plain view where defendant had been sitting. This provided probable cause for his arrest. There was no error in the initial stop or in defendant’s arrest.
Affirmed.
"This court held [in United States v Roberts, 618 F2d 530 (CA 9, 1980)] that the prosecutor committed reversible error when, over an objection sustained by the court, he attempted to bolster the credibility of the chief prosecution witness with evidence outside the record.” United States v Roberts, 640 F2d 225, 226 (CA 9, 1981).
"You may consider whether the testimony was affected by either of them being granted immunity from punishment or from receiving a promise of leniency or being allowed to plead guilty to a lesser offense. You may consider whether the testimony is falsely slanted in such a way as to place guilt upon the defendant in order to further the witness’ own interest or any other bias or motive which may have prompted or induced the witness in his testimony. You should also consider how each of those witnesses impressed you with his appearance upon the witness stand. And so to summarize, you should examine an accomplice’s testimony with greater care than you would use to examine the testimony of an ordinary witness. It should be carefully and closely examined before a conviction is based upon it.”
Defendant was convicted September 11, 1979, and Roberts was decided May 7, 1980. | [
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Cynar, J.
Plaintiff appeals as of right from the grant of defendants’ motion for summary judgment as to the negligence count of plaintiffs complaint, which summary judgment was certified as a final order. We affirm.
On August 24, 1973, defendant-attorney, Gary C. Berger, commenced a civil action in Wayne County Circuit Court in favor of his clients, Linda and Gerald Koras, against Suburban Radiology Associates, P.C., and Herbert Schunk, M.D. In the action, Mr. and Mrs. Koras sought damages because of Dr. Schunk’s failure to diagnose an ectopic pregnancy from X-ray films taken of Mrs. Koras which were reviewed by Dr. Schunk. Mrs. Koras had been referred to Dr. Schunk for a hysterosalpingogram, a a procedure whereby an opaque substance is introduced and an X-ray is taken of the patient’s uterus, ovaries, and fallopian tubes. The procedure is intended to indicate the existence of an ectopic pregnancy when the opaque substance is not able to fully circulate due to an obstruction in the fallopian tube.
Dr. Schunk’s review of Mrs. Koras’ hysterosalpingogram on June 28, 1972, detected no ectopic pregnancy. On July 2, 1972, Linda Koras required surgery for a ruptured fallopian tube.
On August 25, 1976, a notice of discontinuance of the Koras medical malpractice action against Dr. Schunk was filed. This notice was signed by Dr. Schunk’s and plaintiffs’ attorneys. No settlement money was paid, nor were costs assessed.
On November 2, 1977, the instant cause of action was commenced. Dr. Schunk complains that defendants, in their representation of Mr. and Mrs. Koras in a malpractice action wherein Dr. Schunk was named as a defendant, breached various duties allegedly owing to Dr. Schunk. Plaintiff specifically complains of defendants’ alleged failure to investigate the merits of the Koras claim prior to the commencement of the medical malpractice action against Dr. Schunk. The complaint was framed in two counts, negligence and malicious prosecution.
After the commencement of Dr. Schunk’s action herein, defendants filed a motion for summary judgment. The trial court granted defendants’ motion for summary judgment as to count I, or the negligence count of plaintiffs complaint, indicating that under the current state of the law an attorney does not owe a legal duty to his client’s adversary, the breach of which would support a negligence action. The trial court denied defen dants’ motion for summary judgment as to plaintiffs claim of malicious prosecution.
In affirming the trial court’s grant of summary judgment on the negligence count, we rely on Friedman v Dozorc, 83 Mich App 429; 268 NW2d 673 (1978), lv gtd 405 Mich 823 (1979), and Gasis v Schwartz, 80 Mich App 600; 264 NW2d 76 (1978).
In Friedman, the Court noted that an attorney has a duty to be a zealous advocate. The lawyer’s obligation to his client thus permits the lawyer to assert that view of the law most favorable to the client. Accordingly, the attorney is not to be liable in negligence to a third party.
This Court in Friedman cited other decisions addressing a factual situation similar to that in the case before us. The holding of those cases was that the attorney was not to be held liable to one other than the client. Free access to the courts was the rationale underlying the conclusion of those courts. Public policy demands that persons shall be entitled to resort to the courts for redress of wrongs; the law is intended to protect them when, in resorting to the courts, individuals act in good faith and upon reasonable grounds.
This Qourt in Friedman also commented that, notwithstanding the demise of the privity requirement, plaintiff must show the existence of a duty in order to recover. That question normally is to be resolved by the judge. Thus, it was decided that the trial court had acted properly in finding that the plaintiff had failed to state a claim of negligence.
In the case of Gasis, the plaintiff, a medical doctor named as a defendant in a medical malpractice action brought by the defendant-attorney’s clients, sued the attorneys for negligence in the commencement of a medical malpractice ac tion. The defendants brought a motion for summary judgment based on the plaintiffs’ failure to state a claim upon which relief could be granted. The trial court, in granting the defendant-attorney’s motion, found that the attorneys owed no duty of care to the plaintiffs.
In affirming the decision of the trial court in that regard, this Court stated as follows:
"Plaintiffs allege, however, that the trial court erred in granting summary judgment to defendants Stanley Schwartz and Sommers, Schwartz, Silver, Schwartz, Tyler and Gordon, P.C. That claim, plaintiffs allege, was not for malicious prosecution but for negligence. Defendant attorneys, plaintiffs argue, have a duty to adverse parties not to institute lawsuits without first undertaking a thorough investigation to determine whether the action is meritorious, and failure so to investigate constitutes actionable negligence vis-á-vis the adverse parties.
"This novel theory has apparently not been ruled upon heretofore by an appellate court of this state. A similar claim was recently rejected, however, by the California Court of Appeals in Norton v Hines, 49 Cal App 3d 917; 123 Cal Rptr 237 (1975). The California court said, Norton, 49 Cal App 3d 917, 921:
" 'In the case at bar a former litigant is suing adverse counsel. Clearly, an adverse party is not an intended beneficiary of the adverse counsel’s client. If a cause of action exists against attorneys for the reasons alleged here, it must be pleaded as an action for malicious prosecution. We see no reason to extend applicable law now found in cases involving attorneys and third parties when there is sound and recognized public policy for limiting the cause of action to malicious prosecution under the facts as pleaded by Norton.’ ” Id., 602-603.
In addition to the Michigan cases cited herein, a number of other states have reached a similar result. The New York Court of Appeals in Drago v Buonaguiro, 46 NY2d 778; 413 NYS2d 910; 386 NE2d 821 (1978), held that a doctor’s complaint did not state a cause of action against the attorney in negligence.
The complaint in O’Toole v Franklin, 279 Or 513; 569 P2d 561 (1977), contained allegations that the defendant-attorneys had commenced a medical malpractice action against the plaintiff-physicians alleging that the physicians had improperly administered certain drugs to the attorneys’ client. The second count of the physicians’ complaint alleged that the attorneys had been negligent in not properly investigating the case and in not advising their client that he had no just claim against the plaintiffs. The trial court concluded that the physicians’ complaint did not state a cause of action.
The finding of no duty was made by the court in Hill v Willmott, 561 SW2d 331 (Ky App, 1978). The issue addressed by that court was whether a former litigant can sustain an action based on the theory of negligence against the adverse party’s attorney in a prior suit. Plaintiff in that case was a physician who had been sued for giving an incorrect diagnosis. The court examined the elements of a cause of action for negligence and found that the main flaw in the physician’s reasoning lay in his assumption that a duty was owing from the attorneys to him:
"Applying the foregoing principles to the case at bar, it is readily apparent that Willmott did not owe the alleged duty urged by Hill nor was the appellant an intended beneficiary of Willmott’s services. Willmott’s alleged failure to investigate the facts and law prior to the filing of the suit in his name would have been material as to the question of 'probable cause’ in a malicious prosecution action if such had been pleaded. However, his alleged failure to investigate was not a duty owing to Hill and as such does not constitute a cause of action by him.” Id., 335.
In Lyddon v Shaw, 56 Ill App 3d 815; 372 NE2d 685 (1978), attorney Shaw was retained by defendant Trembath to bring a medical malpractice action against a surgeon. As a result of that medical malpractice action, the plaintiff-physician brought an action against both Shaw and Trembath stating that they had filed claims against him without first investigating the relevant X-rays and without first obtaining the opinion of a qualified physician. Plaintiff alleged causes of action pertaining to defendant’s duty to refrain from bringing suit without having reasonable cause to believe that the action was tenable, defendant’s failure to exercise the skill required of an attorney at law in filing and maintaining the lawsuit, and the attorney’s alleged violation of the Illinois barratry statute.
Plaintiff cited no express basis for the patient’s duty to refraim from willfully and wantonly filing baseless suits, but, in support of his cause of action against the attorney, plaintiff cited only the Disciplinary Rules of the Canons of Ethics. The Lyddon court refused to impose liability on the attorney on those grounds and stated as follows:
"However, in spite of the increasing scope of the malpractice problem and the growing interest in curbing frivolous malpractice suits, courts in reported cases have refused to enlarge the tort remedies available to physicians, holding that the physicians’ remedy for the wrongful filing of a medical malpractice action is limited to a cause of action for malicious prosecution or abuse of process * * *.
"* * * While we acknowledge the seriousness of the medical malpractice problem, we believe there is a more basic and important consideration of public policy which prohibits any enlargement of the potential tort liability incurred by those who file even groundless lawsuits. Free access to the courts as a means of settling private claims or disputes is a fundamental component of our judicial system, and '* * * courts should be open to litigants for the settlement of their rights without fear of prosecution for calling upon the courts to determine such rights.’ * * * This same public interest demands that we reject any effort to extend the tort liability for the wrongful filing of a lawsuit beyond the ambit of an action for malicious prosecution or abuse of process. These considerations apply with equal force, not only to a party litigant, but to his counsel [citation omitted] since a litigant’s free access to the courts would frequently be of little value to him if he were denied counsel of his choice by a rule which rendered attorneys fearful of being held liable as insurers of the merits of their client’s case, and therefore unwilling to undertake representation in close or difficult matters. The very purpose of a court of law is to determine whether an action filed by a party has merit and we refuse to recognize a rule which would render a litigant and his attorney liable in tort for negligently (or even, willfully and wantonly) failing to determine in advance that which, ultimately, only the courts could determine.” Id., 821-822.
In Pantone v Demos, 59 Ill App 3d 328; 375 NE2d 480 (1978), the case involved an action by two doctors against an attorney for the latter’s alleged wrongful naming of them as defendants in a medical malpractice action. The physicians sought to allege a cause of action entitling them to new legal remedies which they argued should be available to doctors whose livelihoods may be endangered by the filing of supposedly frivolous malpractice actions. The Pantone court cited Lyddon in reaffirming the public policy of free access to the courts. It concluded that there was no historical basis for the willful and wanton cause of action proposed therein that the plaintiffs alleged: that the defendants owed them a duty to refrain from willfully and wantonly bringing suit against them without having reasonable cause to believe that they were guilty of medical malpractice. The court alluded to the overriding public policy of free and unfettered access to courts by potential suitors and said that such policy required rejection of the plaintiffs’ position. As to the issue of whether an attorney could be held liable to a former adverse litigant for professional negligence, the court stated that the answer must be no:
"Establishment of such a negligence cause of action would clearly inhibit free access to the courts. * * * Even those courts which have liberalized the scope of an attorney’s duty of care to include intended beneficiaries of the original attorney-client relationship have refused to recognize a duty under the facts of the instant case.” Id., 335. See also Berlin v Nathan, 64 Ill App 3d 940; 381 NE2d 1367 (1978).
A similar holding was reached by the court in Bickel v Mackie, 447 F Supp 1376 (ND Iowa, 1978). That case grew out of an unsuccessful medical malpractice action by defendant acting on the advice of his counsel. The medical malpractice suit was summarily dismissed, and plaintiff-physician brought a cause of action against the attorney alleging malicious prosecution, abuse of process and negligence. As to the negligence cause of action, the physician alleged that the patient’s attorney had acted improperly in advising his client with regard to commencement and prosecution of the medical malpractice action and was thus liable to the physician for damages. However, the court refused to allow the physician’s cause of action:
"However, in the present case there is no question of reliance of third parties who are adversaries in judicial proceedings. The attorney owes his primary and paramount duty to this client. The very nature of the adversary process precludes reliance by opposing parties. While it is true that the attorney owes a general duty to the judicial system, it is not the type of duty which translates into liability for negligence to an opposing party where there is no foreseeable reliance by that party on the attorney’s conduct.” Id., 1381.
The court in Brody v Ruby, 267 NW2d 902 (Iowa, 1978), was cognizant of the public policy which encourages clients to solve their problems in the courts. In the physician’s counter-suit involved there, the doctor alleged a right to recovery on account of defendants’ alleged negligence. That court held that, absent special circumstances, an attorney will be held liable only to the client for the consequences of the attorney’s professional negligence. The third party, in order to proceed successfully in a legal malpractice action, must be a direct and intended beneficiary of the lawyer’s services. Where such a special relationship between the attorney and the third party is lacking, courts will refuse to impose liability based on legal malpractice.
In Spencer v Burglass, 337 So 2d 596 (La App, 1976), the plaintiff-physician sought damages against the defendant-attorney. The latter party had commenced an earlier medical malpractice action on behalf of his client against the doctor. The physician complained of the attorney’s alleged failure to consult with any expert witnesses prior to trial, to refrain from filing frivolous suits having no basis in law or in fact, and to consult with witnesses prior to the filing of suit or trial. The court rejected the doctor’s claim to a right to recover for the breach of any duty owed her.
Similarly, in Norton v Hines, 49 Cal App 3d 917; 123 Cal Rptr 237 (1975), the appellate court found the trial court to have acted properly when it dismissed the plaintiffs cause of action for professional negligence. Plaintiff in Norton, in a separate suit, had been an adversary of the defendant-attorney’s client. In Norton, plaintiff claimed that the attorney owed a duty to him as a foreseeable third party to exercise reasonable care in advising the client to commence a lawsuit against the third person when the attorney knew that advice would cause the client to commence the suit and that the client lacked probable cause to sue. The court found that an adverse party clearly is not an intended beneficiary of the adverse counsel’s client. Thus, if any cause of action exists against an adverse counsel, it might be an action for malicious prosecution, but certainly not for negligence. The court alluded to sound and recognized public policy reasons for not extending recovery to causes of action sounding in negligence.
Following the policy and case law discussed above, we decline to allow a cause of action in negligence against an attorney by a client’s adverse party under the circumstances of the instant case.
Affirmed.
Danhof, C.J., concurred. | [
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Per Curiam.
Plaintiff appeals of right the trial court’s order of June 6, 1980, granting defendant’s petition for change of custody of the parties’ minor child, born March 16, 1972. We affirm.
Plaintiff, Prudy Currey, filed for divorce on August 17, 1979. The divorce proceeding was not contested by the defendant, Thomas Currey. Plaintiff sought and was awarded, with consent of defendant, temporary custody of the child, Casey, on September 7, 1979. The parties signed a property settlement on January 15, 1980, which included an agreement to give legal custody of the minor child to the wife, subject to the husband’s right of visitation, and subject to the order of a court of competent jurisdiction. A default judgment of divorce was entered in favor of the plaintiff on February 25, 1980. Plaintiff was awarded custody of the minor child and defendant received reasonable rights of visitation. The divorce judgment provided: "The domicile of the minor child mentioned herein shall not be removed from the State of Michigan without the prior written consent of the court”.
On March 19, 1980, defendant filed a motion for an ex parte order changing custody, alleging plaintiff threatened to leave the state with the child without prior approval of the court, that it was defendant’s belief that plaintiff was going to move with the child and live out of wedlock with a male friend in Louisiana, and that it was defendant’s belief that plaintiff had requested the child’s school records be transferred to a location as yet unknown. Plaintiff’s answer denied defendant’s assertions and beliefs. The court granted an ex parte order changing custody from plaintiff to defendant and set a hearing for March 21, 1980.
At the hearing on March 21, 1980, both parties were represented by counsel. On the day of the hearing, defendant filed a motion for permanent change of custody together with an affidavit of Susan Kull, teacher of Casey, stating that on March 18, 1980, she had received a note informing her that "tomorrow will be Casey’s last day of school”, signed by plaintiff. To further support defendant’s belief that plaintiff was going to remove Casey from the state without allowing for visitation or getting prior court, consent, defendant’s attorney stated that John Miller, principal at the school, reported that on March 15, 1980, plaintiff met with Casey’s teacher and informed her that she was leaving the state in a few days and attempted to obtain the school records and wanted to know the procedure for getting the records transferred. Further, it was said that plaintiff quit her job and had other potential job possibilities in Louisiana. Defendant also claimed that plaintiff threatened to leave the state without allowing for visitation and without court approval.
The trial court entered a temporary order changing custody from plaintiff to defendant and set a hearing to determine the issue of custody for May 8, 1980. Plaintiff filed a petition to remove the minor child from Michigan on March 31, 1980.
On April 7, 1980, defendant filed a motion for immediate surrender of the child and suspension of child support pending a hearing, asserting that since the hearing of March 21, 1980, temporary custody of the child had been with defendant, that on March 31, 1980, the child was removed from her school by a person believed to be the plaintiff, and that defendant believed that plaintiff had left Michigan with the child with the intent to remove the child from the jurisdiction of the court and from the custody of defendant.
On May 2, 1980, a hearing was held on defendant’s motion. Plaintiff was not present but was represented by her attorney. Defendant’s motion was granted by order filed May 7, 1980.
Defendant’s petition for change of custody was heard on May 8, 1980. Defendant and his counsel were present. Plaintiffs counsel appeared, but plaintiff did not.
Defendant testified that Casey had lived in Monroe County all of her life, that substantially all immediate and close relatives are in Monroe County, that her close friends are in Monroe County, that she had been in the same school since she began school, and that she has had the same doctor all of her life. Defendant stated that he had arranged for plaintiff and Casey to remain in the marital home after the divorce, but plaintiff sold the home before the divorce decree was granted. Plaintiff and the child moved from a three-bedroom home into a three-bedroom trailer, with two other people, and had to share a bedroom. Defendant said he first heard of a possible move from his daughter on March 5, 1980, and then was told by plaintiff that he had to go along with it or she would just leave and he would never see either of them again. On March 20, 1980, he called his wife at work and found that she had quit.
Plaintiffs counsel stated that plaintiff would not appear in court and refused to answer the petition for change in custody because she denied that there was any basis for a change. He also asserted her petition to change domicile.
On cross-examination, defendant admitted that he approved the September 7, 1979, temporary order of custody and the February 25, 1980, default judgment of divorce, granting custody to plaintiff. Further, he did not object to the Friend of the Court’s recommendation that plaintiff be given permanent custody. Defendant stated that he had never lived alone with Casey, but of some 30 months of marriage, before the separation in March 1979, he lived away from her approximately 11 to 12 months. He did not pay child support during the separation but made house payments. Plaintiff had discussed the possibility of splitting the expense of visitations if she and the child moved, but defendant objected to any move. It was plaintiff who usually took Casey to the doctor and provided her with clothing and personal items. Both plaintiff and defendant took part in school matters and both have close emotional relationships with Casey. Defendant agreed that plaintiff took good care of the child and she was not neglected as to food, clothing, and medical care. Casey was doing well in school.
On redirect examination, defendant’s attorney was allowed to question defendant regarding conversations he had had with Casey about people plaintiff had been associating with. Plaintiffs counsel’s hearsay objection was overruled, as the court stated that the conversations would indicate the frame of mind of the child. Defendant testified that Casey mentioned a man who worked with plaintiff. After being asked, "Do you feel that there are some ways your ex-wife did neglect the child?”, defendant responded, "I don’t feel she spent a great deal of time with her after our separation and divorce”. Defendant then answered "yes” to a series of leading questions which asserted that plaintiff considered her employment more important than her child.
When examined by plaintiff’s counsel, defendant agreed that he had consented to giving plaintiff custody of Casey, notwithstanding his knowledge of the man Casey had mentioned who worked with plaintiff. Although he and plaintiff had never discussed any relocation, they did talk about her job being important.
On questioning by the court, defendant testified that the only knowledge he had of his wife’s associating with some other man during their marriage was what he had been told. When he tried to discuss the situation with her, she said it was not his concern. He objected to Casey being taken to an R-rated movie sometime in January or February before the divorce.
Defendant also testified that he had lived in Monroe County all his life and had a position at the bank making $19,500 a year. Visitations were every other weekend on Saturday from 9 a.m. until 7 p.m. on Sunday. On alternate weekends he had Casey on Sunday from 9:30 a.m. until about 7:30 p.m. No specific visitation hours were written in the divorce judgment. Casey was going to play softball that summer and she was in Blue Birds for a short period of time. Defendant was living with his parents in their four-bedroom home. The Friend of the Court filed a report regarding the Currey home and approved it as an appropriate place for Casey to live. Mrs. Melvin Currey testified that she and her husband would be willing to have her son and granddaughter live with them.
At the conclusion of defendant’s testimony the trial judge stated his findings of fact and conclusions of law for the record. Based upon the ten factors of MCL 722.23; MSA 25.312(3), the judge determined that by clear and convincing evidence it was in the best interests of the minor child to grant defendant custody. Defendant agreed to pay the expenses of getting the child back to Michigan. The court directed that a transcript and copy of the order be sent to the proper jurisdiction in Louisiana. The trial court’s order changing custody from plaintiff to defendant was filed June 6, 1980. Plaintiff had filed a motion for a new hearing on May 28, 1980, which was denied by the trial court on July 11, 1980.
In a custody dispute between parents, the best interests of the child control. MCL 722.25; MSA 25.312(5), Berman v Berman, 84 Mich App 740; 270 NW2d 680 (1978), Zawisa v Zawisa, 61 Mich App 1; 232 NW2d 275 (1975). "Best interests of the child” is defined in MCL 722.23; MSA 25.312(3), which enumerates ten factors to be considered.
Before issuing a custody order, the trial court must evaluate and state a conclusion as to each of the factors contained in MCL 722.23; MSA 25.312(3). Dowd v Dowd, 97 Mich App 276; 293 NW2d 797 (1980), Troxler v Troxler, 87 Mich App 520; 274 NW2d 835 (1978). Furthermore, the trial court is required by GCR 1963, 517.1 to make definite findings of fact and to state its conclusions of law. This duty extends to the determination and explicit consideration of each of the best interest factors listed in the statute. Lewis v Lewis, 73 Mich App 563; 252 NW2d 237 (1977). Failure to make specific findings is reversible error. Zawisa v Zawisa, supra.
The trial court’s authority to modify previous custody orders is governed by MCL 722.27; MSA 25.312(7), as follows:
"Sec. 7. If a child custody dispute has been submitted to a circuit court as an original action under this act or has arisen incidentally from other actions therein or orders or judgments thereof, for the best interests of the child the court may:
"(c) Modify or amend its previous judgments or orders for proper cause shown or because of change of circumstances until the child reaches the age of 18 years or in exceptional circumstances, until the child reaches majority. The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child. (The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life and parental comfort. The age of the child, the physical environment and the inclination of the custodian and the child as to permanency of the relationship shall also be considered.”
See also Adams v Adams, 100 Mich App 1; 298 NW2d 871 (1980), Cooper v Cooper, 93 Mich App 220; 285 NW2d 819 (1979), Eigner v Eigner, 79 Mich App 189; 261 NW2d 254 (1977).
To lend finality to the trial court’s determination, this Court’s review of child custody matters is limited by MCL 722.28; MSA 25.312(8).
"To expedite the resolution of a child custody dispute by prompt and final adjudication, all orders and judgments of the circuit court shall be affirmed on appeal unless the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or clear legal error on a major issue.”
See also Stevens v Stevens, 86 Mich App 258; 273 NW2d 490 (1978), Feldman v Feldman, 55 Mich App 147; 222 NW2d 2 (1974).
Child custody cases are considered de novo and the evidence appraised apart from the trial judge’s findings of fact. Bahr v Bahr, 60 Mich App 354; 230 NW2d 430 (1975), lv den 394 Mich 794 (1975), Outcalt v Outcalt, 40 Mich App 392; 198 NW2d 779 (1972). Although special deference is given to the findings of the trial court, Becker v Becker, 95 Mich App 370; 290 NW2d 149 (1980), the welfare of the child is paramount to all other considerations. Lamky v Lamky, 29 Mich App 17; 185 NW2d 203 (1970).
Plaintiff had notice of the hearing set on the motion for change of custody. However, plaintiff chose to absent herself and the child from the jurisdiction. Because of plaintiff’s actions, the trial court had to decide defendant’s petition to change custody solely on evidence produced on behalf of the defendant.
The court recognized its duty to consider and weigh the proofs concerned with the ten best interest factors under the statute. After doing so, the trial court made specific findings concerning each factor. Our review of the record persuades us that the trial court did not abuse its discretion in finding that defendant presented clear and convincing evidence to support a change of custody.
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Per Curiam.
Defendant was convicted, at a bench trial, of receiving or concealing stolen property over the value of $100. MCL 750.535; MSA 28.803. He was sentenced to a prison term of from two to five years and appeals by right.
Defendant first argues that his waiver of a jury trial was ineffective. We agree. The statute requires that the waiver be in writing, signed by the defendant, and made a part of the record. MCL 763.3; MSA 28.856. The statute also states that the waiver "must be made in open court”. Id. The "open court” provision of the statute at one time was held to require oral acknowledgment of the written waiver on the record in open court. People v Word, 67 Mich App 663; 242 NW2d 471 (1976), People v Rimmer, 59 Mich App 645; 230 NW2d 170 (1975). More recently, however, this Court has held that an oral acknowledgment is not necessary if it is otherwise apparent that the waiver took place in open court. People McKaig, 89 Mich App 746, 750; 282 NW2d 209 (1979). See People v Carl Johnson, 99 Mich App 547; 297 NW2d 713 (1980).
In the instant case the record includes a form entitled "Waiver of Trial By Jury”. It is signed by the defendant and dated April 1, 1980, the day defendant’s trial began. Above the defendant’s signature the preprinted form states in part: "I, having had opportunity to consult with counsel, do hereby in open court voluntarily waive and relinquish my right to a trial by jury * * (Emphasis added.) The form is also signed by a deputy clerk, but not by a judge. Except for the clerk’s statement "this is a waiver”, the transcript makes no reference whatsoever to defendant’s waiver of a jury trial.
The instant case is factually similar to both McKaig, supra, and to People v Blackmon, 95 Mich App 462; 291 NW2d 82 (1980). In each case, the defendants signed a written waiver on the day their trials commenced. In McKaig the transcript apparently made no reference to the waiver, while in Blackmon defense counsel stated that a written waiver had been , filed. In McKaig this Court found the "open court” requirement satisfied since the written waiver was dated on the first day of trial, the defendant was represented by counsel, and the defendant did not claim that he had not signed the waiver in open court. In Blackmon the Court agreed with McKaig that oral acknowledgment is not necessary where it is otherwise apparent that the waiver indeed was made in open court but refused to find the evidence sufficient to sustain a finding that the waiver in that case (or in McKaig) was made in "open court”.
To the extent that McKaig and Blackmon are in conflict, we elect to follow Blackmon and hold that, in the instant case, the record fails to establish sufficiently that the waiver was made in open court. It is important to remember that the waiver statute, including the "open court” requirement, requires strict compliance. People v Edwards, 51 Mich App 403; 214 NW2d 909 (1974). Although the preprinted form signed by the defendant indicates a waiver "in open court”, this does not compel the conclusion that the waiver actually took place "in open court”. It may be that defendant signed the form before court opened and that the language on the form refers to a formal presentation of that document once court was actually in session. In any event, we find it difficult to conclude that the waiver was made "in open court” when the transcript of the proceedings taking place "in open court” contains no discussion of the matter. Accordingly, defendant’s conviction must be reversed and this cause remanded for a new trial. We are constrained to say once again that problems of this sort easily are eliminated by having the defendant orally acknowledge the waiver on the record.
Defendant also argues that the trial court erred in failing to grant 33 days credit on his sentence for time apparently spent in a juvenile detention facility. The prosecution concedes the issue. Accordingly, if defendant is tried again and convicted, defendant should receive credit for an additional 33 days.
Reversed and remanded. | [
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M. F. Cavanagh, J.
In the spring of 1979, 18 duplexes were built in a two-block area of the City of East Lansing. The duplexes were immediately rented to students, which resulted in a population increase of over 110 people in the two-block area. At the time the duplexes were built, the City of East lansing had enacted a zoning ordinance which required a lot width of 75 feet for new duplex construction. The ordinance did not become effective until after the 18 duplexes were completed.
During 1979, Lester Wolterink (intervenor), who lived in the two-block area in an older dwelling, decided to sell his property and move from the neighborhood. The East Lansing Zoning Board of Appeals (defendant), after giving the required notice, placed upon its January 8, 1980, agenda a request by intervenor for a variance of the 75-foot lot width requirement and the area requirement of the East Lansing City Ordinance 451, art VI, §5.40, to permit construction of a duplex on the west half of intervenor’s lot in the event he was able to sell the lot. Plaintiffs Nancy J. Brown, R. Philip Brown, Tony DeBlasi and Penny Hungle received notice of the request and formally opposed it. The variance was denied by a vote of 4 to 1.
Intervenor then filed a written request for reconsideration of the denial with the defendant. The matter was placed on defendant’s February 12, 1980, agenda. No notice of the request for reconsideration was given to any of the plaintiffs. At the February meeting, defendant granted intervenor’s request for reconsideration, scheduling the second hearing for March 11, 1980. Notice was given to plaintiffs, who again opposed the request. Tony DeBlasi and Penny Hungle opposed the request in writing, and Nancy and Philip Brown, Linda and Richard Zapala, and Nina McMillan appeared at the March 11, 1980, meeting to oppose the request in person. Despite plaintiffs’ opposition, defendant reversed its earlier denial and granted intervenor his requested variance.
Plaintiffs filed an appeal with the Ingham County Circuit Court and a motion for a temporary restraining order to enjoin defendant from implementing its decision to grant the variance to intervenor. In their brief in support of the motion for the temporary restraining order, plaintiffs contended that the variance was improperly granted in that (1) defendant had failed to give notice that the request for reconsideration would be heard at its February 12, 1980, meeting and (2) that defendant had failed to follow City of East Lansing Ordinance 451, art XVIII, § 5.145(4), which provides that no application for a variance shall be resubmitted for a period of one year from the date of last denial. The trial judge issued a temporary restraining order and ordered a hearing requiring defendant to show cause why a preliminary injunction should not issue enjoining defendant from implementing its grant of the variance.
The parties agreed for purposes of the hearing that the issue before the court was not whether plaintiffs had standing to appeal but whether they could show irreparable harm which would justify the grant of a motion for preliminary injunction, GCR 1963, 718.2. Plaintiffs presented several witnesses "to show what kind of harm has resulted from the change in the neighborhood in the past year and what kind of harm we believe will result from the building of the duplex on the property as a result of the increase in population density”. Lester Wolterink, at that time still not a party to this action, stated the reasons why he decided to leave the neighborhood and in turn requested a variance so that he might more easily sell his property.
After all the testimony, plaintiffs argued that, given the interest of builders in Wolter ink’s property, there was a real threat that an additional duplex would be built there, causing further increases in population density and resulting in irreparable harm. The trial court, however, denied the request for a preliminary injunction and dissolved the temporary restraining order. An order to that effect was entered on April 10, 1980.
On May 27, 1980, Lester S. Wolterink intervened pursuant to a stipulation between plaintiffs and defendant and also filed a motion for summary judgment against plaintiffs on the basis that they had not alleged any facts to establish their standing to appeal defendant’s decision to grant the variance. At the hearing on this motion for summary judgment, only the issue of standing was involved and plaintiffs filed a brief in opposition to the motion, supplemented by affidavits indicating the interest of each plaintiff in the disposition of the case.
At the hearing, the parties argued the issue of standing. Intervenor argued that plaintiffs did not qualify as "aggrieved” parties under MCL 125.590; MSA 5.2940. Plaintiffs contended that their appeal had been brought under MCL 125.585(6); MSA 5.2935(6), which does not refer to "aggrieved parties” but instead requires only that a person have "an interest affected by the zoning ordinance” in order to appeal to the circuit court. Plaintiffs argued in the alternative that even if their appeal had been brought under MCL 125.590; MSA 5.2940, they would have qualified as "aggrieved parties” based on the statements in their affidavits.
The trial court granted intervenor’s motion for summary judgment and plaintiffs appeal as of right. Neither defendant nor intervenor has filed a brief on appeal.
Our determination of whether the trial court’s grant of summary judgment was erroneous begins with an analysis of the apposite statutes.
MCL 125.590; MSA 5.2940 provides in pertinent part:
"Sec. 10. Any party aggrieved by any order, determination or decision of any officer, agency, board, commission, board of appeals, or the legislative body of any city or village, made pursuant to the provisions of section 3a of this act may obtain a review thereof both on the facts and the law, in the circuit court for the county wherein the property involved or some part thereof, is situated.” (Emphasis added.)
Former MCL 125.585(a); MSA 5.2935(a), amended by 1978 PA 638, effective March 1, 1979, contained similar language:
"An appeal may be taken by any person aggrieved or by an officer, department, board, or bureau of the city or village. Where a city or village has created or may create a board of rules or board of building appeals, that board may be enlarged to consist of not less than 5 members, and these may be appointed as the board of appeals as herein provided.” (Emphasis added.)
This Court has issued several opinions in which it has affirmed a trial court’s finding that a plaintiff did not qualify as an "aggrieved party” and therefore lacked standing to appeal a zoning board decision. In Marcus v Busch, 1 Mich App 134, 136; 134 NW2d 498 (1965), the Court found that to have standing to attack the actions of a zoning board of appeals a party must "be an aggrieved party, and said party must be more than a resident of the city”. The Court went further in Joseph v Grand Blanc Twp, 5 Mich App 566, 571; 147 NW2d 458 (1967), lv den 379 Mich 755 (1967), where it held that to have standing to attack a township zoning board’s decision a non-abutting property owner must prove that he has "suffered a substantial damage which is not common to other property owners similarly situated”. The Court found that increased traffic on the road fronting his property with its incidental inconvenience and economic and aesthetic losses did not constitute "a substantial damage” and that the plaintiff was not an "aggrieved party”. Id. In Unger v Forest Home Twp, 65 Mich App 614; 237 NW2d 582 (1975), plaintiff filed a claim of appeal challenging a township board’s issuance of a building permit for the construction of a condominium complex bordering on the same lake as his own land. The Court noted that "[t]he only inferences one might draw from (plaintiff’s affidavit) are that the traffic on the lake might increase, and that property values in general for lake property might go down”. Id., 618. The Court found that those allegations were insufficient to prevent summary judgment against the plaintiff for lack of standing. Id. Unger was decided under the Township Rural Zoning Act, MCL 125.271 et seq.; MSA 5.2963(1) et seq., a different zoning enabling act from the one in question here.
This Court discussed the issue of standing to appeal zoning decisions at some length in Western Michigan University Bd of Trustees v Brink, 81 Mich App 99; 265 NW2d 56 (1978). That case involved an appeal by the University from a Kala mazoo Zoning Board of Appeals decision to allow expansion of a non-conforming use (operation of a tavern) located within 300 feet of University property. Plaintiff sought review under MCL 125.590; MSA 5.2940. This Court cited its previous decisions in Unger, Joseph and Marcus, supra, and found that plaintiff was not an "aggrieved party”. Western Michigan University Bd of Trustees v Brink, supra, 102-104. Specifically, the Court found that the prospect that plaintiff might have to pay a higher price to purchase the non-conforming user’s land in a subsequent condemnation proceeding was not a sufficient showing of damages to confer standing. The Court said:
"Although the board’s order may indeed result in higher acquisition costs to plaintiff, this in no way interferes with plaintiff’s beneñcial use or enjoyment of its own land. Plaintiff’s financial interest in throttling the development of neighboring properties is not the kind of legally protectable property right or privilege, the threatened interference with which grants standing to seek review.” 81 Mich App 105. (Emphasis added.)
The Court specifically declined to decide whether an abutting property owner automatically has standing, although it indicated in a footnote that it would probably rule that an adjoining landowner would still have to "plead” some "special damages”. Western Michigan University, supra, 103, fn 1.
Finally, in Village of Franklin v Southfield, 101 Mich App 554; 300 NW2d 634 (1980), this Court affirmed the grant of summary judgment on the basis of the plaintiff’s lack of standing under MCL 125.590; MSA 5.2940. In Village of Franklin, the Southfield City Council had approved a site plan for proposed residential and commercial develop ment and had authorized the issuance of certain building permits. The Court found that the Village of Franklin could not establish standing under MCL 125.590; MSA 5.2940 merely by virtue of its status as an adjoining community absent some allegation of "special damages”. Village of Franklin, supra, 557. The Court also found that an individual adjoining landowner who had failed to allege or prove special damages was not an "aggrieved party” under MCL 125.590; MSA 5.2940.
Plaintiffs contend here that the trial court erred in applying the "aggrieved party” standard of the foregoing cases. Plaintiffs point out that their claim of appeal was filed under MCL 125.585(6); MSA 5.2935(6). The basis for their appeal was that defendant’s decision to grant the variance was not supported by competent, material and substantial evidence, following the language of MCL 125.585(6); MSA 5.2935(6). Plaintiffs emphasize that the cases relied on by intervenor and the trial court were all decided under MCL 125.590; MSA 5.2940. As noted above, MCL 125.590; MSA 5.2940 specifically refers back to former MCL 125.583a; MSA 5.2933(1), which provided in pertinent part:
"Sec. 3a. The lawful use of land or a structure exactly as such existed at the time of the enactment of the ordinance affecting them, may be continued, except as hereinafter provided, although such use or structure does not conform with the provisions of such ordinance. The legislative body may in its discretion provide by ordinance for the resumption, restoration, reconstruction, extension or substitution of non-conforming uses or structures upon such terms and conditions as may be provided in the ordinance.” (Emphasis added.)
This section applies solely to situations involving the continuation of non-conforming uses. Plaintiffs argue that MCL 125.590; MSA 5.2940 can there fore only apply to disputes over the continuation of non-conforming uses. They contend that the case at bar is distinguishable because intervenor did not seek to continue a non-conforming use but only sought a variance. Plaintiffs also point out that Unger, Brink and Joseph, supra, all involved non-conforming uses rather than variances and that the Court in those cases expressly relied on the "aggrieved party” language of MCL 125.590; MSA 5.2940, the section governing appeals in cases involving non-conforming uses. Plaintiffs conclude that the trial court erred reversibly in failing to distinguish those cases and the present appeal, taken under MCL 125.585(6); MSA 5.2935(6), a completely different section with a different standing requirement.
In Brink, supra, this Court stated:
"The 'aggrieved party’ requirement is a standard limitation in state zoning acts providing for review of zoning board of appeals decisions. * * * This requirement has repeatedly been recognized and applied in the decisions of this Court. * * * Had the Legislature meant to unshoulder this burden from parties in plaintiff’s status it could have done so in simple terms. However, [MCL 125.291; MSA 5.2941 (referring in turn to MCL 125.590; MSA 5.2940)] does not speak in terms of standing to seek review, but only of notice and a right to appear in 'any action for review instituted’. We do not read this language as broadening the class of parties privileged to begin such reviews. Such a reading would tend to clog our court with suits by parties who could allege no legally cognizable interest in the outcome. For this reason we will not strain to reach plaintiffs reading of this statute.” 81 Mich App 102-103. (Emphasis added.)
The opinion in Brink was decided in February 1978. Soon afterwards, HB 4591, 4592, and 4593 were introduced in the state Legislature. The bills proposed amendments of the state zoning enabling acts, including the sections pertaining to standing. The bills survived to become 1978 PA 638, effective March 1, 1979, containing the following language:
"(6) The decision of the board of appeals shall be final. However, a person having an interest affected by the zoning ordinance may appeal to the circuit court. Upon appeal, the circuit court shall review the record and decision of the board of appeals to insure that the decision:
"(a) Complies with the constitution and laws of this state.
"Ob) Is based upon proper procedure.
"(c) Is supported by competent, material, and substantial evidence on the record.
"(d) Represents the reasonable exercise of discretion granted by law to the board of appeals.” MCL 125.585(6); MSA 5.2935(6).
This Court has held that amended statutes should be construed in the light of the rationale of any court decisions prompting the amendment, E F MacDonald Co v Dep’t of Treasury, 62 Mich App 626, 632; 233 NW2d 678 (1975). Courts may look to the legislative history of an act, as well as to the history of the time during which the act was passed, to ascertain the reason for the act and the meaning of its provisions, People v Hall, 391 Mich 175, 191; 215 NW2d 166 (1974). The Legislature has full knowledge and information as to the subject matter of the statute at issue, the existing conditions at the time of its passage, and prior and existing law concerning the subject matter, including judicial decisions and executive interpretation. 82 CJS, Statutes, § 316, pp 540-549. Applying the foregoing principles, we believe that the Legislature’s decision to amend the language of the provi sions governing standing was in response to this Court’s opinion in Brink, supra.
The present case is the first opportunity that this Court has had to apply the amended language of MCL 125.585(6); MSA 5.2935(6). The fact that this Court in Village of Franklin, supra, recently found that certain plaintiffs were not "aggrieved parties” should not affect the decision in this case. In Village of Franklin, this Court expressly relied on the fact that the appeal in that case was taken under MCL 125.590; MSA 5.2940, which requires a party to be "aggrieved” in order to have standing to appeal. In the present case, on the other hand, plaintiffs’ appeal was taken under MCL 125.585(6); MSA 2.2935(6), which requires only that a person have "an interest affected by the zoning ordinance”. The fact that plaintiffs have an interest affected by defendant’s decision to grant the variance is manifest in their active opposition to the variance and their participation in the different hearings.
The most important factor distinguishing plaintiffs here from those in other cases is the showing of "special damages”. In Brink, this Court found that higher acquisition costs of the plaintiff would not constitute "special damages” under Joseph, supra, because such costs "in no way interfere with plaintiff’s beneficial use or enjoyment of its own land” Brink, supra, 105. In the present case, plaintiffs have in fact pleaded "special damages” in that the construction of duplexes in their immediate vicinity has at least a potential for interfering with the beneficial use and enjoyment of their own land. Their affidavits have established that the construction of duplexes in the two-block area has already resulted in special damages above and beyond the increase in traffic which would be incident to any increase in population. Even if this Court were to overlook the more graphic descriptions of disorderly behavior set forth in some of the affidavits, plaintiffs’ allegations of "special damages” go beyond the mere increase in traffic and population which the Court found inadequate to confer standing in Joseph, supra. Plaintiffs here have demonstrated that the construction of an additional student rental duplex on intervenor’s lot might serve to intensify the change in the character of the neighborhood as well as increase the number of its residents.
At the hearing on the motion for summary judgment, intervenor argued that plaintiffs had only raised the possibility of adverse effects and had not proven that future residents of any duplex built on the lot in question would engage in disorderly conduct or otherwise add to the disturbance of plaintiffs. That fact that plaintiffs could only demonstrate possible adverse effects should not deter this Court from finding that they have standing. In Randall v Meridian Twp Board, 342 Mich 605; 70 NW2d 728 (1955), the Supreme Court held:
’’Possible adverse effects of the change on their property create in them such an interest in the subject matter as to entitle them to maintain an action for that purpose.” 342 Mich 607. (Emphasis added.)
Possible adverse effects are apparently sufficient to confer standing; the Court did not require plaintiffs to prove that adverse effects would necessarily follow. Intervenor also attempted to distinguish Randall, supra, because it involved adjacent property owners whereas the present case involves only non-abutting owners. As noted above, this Court indicated in Brink that the plaintiff’s status as an adjoining owner is of no consequence. The essential question is whether the plaintiff has alleged "special damages”. We conclude that plaintiffs have done so through their affidavits.
It is not necessary to address plaintiffs’ alternative contention that they would have qualified under the former "aggrieved party” standard. However, a comparison of the present case with the others decided by this Court leads to the same conclusion. Plaintiffs have pleaded adverse effects far more substantial than those claimed by the plaintiffs in Marcus, Joseph, Unger, Brink, and Village of Franklin, supra. Even under the "aggrieved party” standard of those cases, plaintiffs have demonstrated "special damages” sufficient to confer standing.
We concur with the following commentary:
"[I]t is important that persons who have an interest in preserving an established plan have an opportunity to be heard when use changes are contemplated. For this reason statutory grants of aggrieved party status to third parties should be liberally construed. Since it is a matter of standing only, litigation on the merits of the complaint should be relied upon to expose any frivolous complaints.
"* * * rpkg reasonableness of any denial of a variance can be examined by the board or the courts, but the requirement of standing should not be employed to inhibit expression of views. If a person can demonstrate that he possesses a substantial economic interest in the outcome of the variance proceeding, he should be accorded standing for purposes of appeal regardless of the nature of his legal interest in the affected property.” Comment, Standing to Appeal Zoning Determinations: The "Aggrieved Person” Requirement, 64 Mich L Rev 1070, 1084-1085 (1966). (Emphasis added.)
We conclude that the trial court erred reversibly in granting intervenor’s motion for summary judgment on the basis that plaintiffs lacked standing. The case is reversed and remanded for a hearing on the merits of plaintiffs’ claim. No costs. | [
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M. J. Kelly, P.J.
In proceedings below, the defendant tendered separate pleas of nolo contendere to charges of armed robbery, MCL 750.529; MSA 28.797, and unarmed robbery, MCL 750.530; MSA 28.798. On April 28, 1980, the lower court imposed a sentence of from 15 to 50 years imprisonment for the armed robbery charge and a 10- to 15-year sentence for unarmed robbery. The sentences were to run concurrently. The defendant appeals as of right and raises two issues.
It is first alleged that the trial court committed reversible error in failing to inform defendant of the nonprobationable nature of the armed robbery conviction, pursuant to GCR 1963, 785.7(1)(f). In a recent decision, People v Sylvester, 103 Mich App 499, 504-505; 303 NW2d 230 (1981), we noted the current split on this Court on the issue of strict compliance with subrule (f). At that time two lines of decisions were at odds: People v Lendzian, 80 Mich App 323; 263 NW2d 360 (1977) (failure to comply with subrule [f[ excused where armed robbery charge, indicating potential maximum and minimum sentences, was read to and understood by defendant), and People v Earl Jones, 94 Mich App 232; 288 NW2d 385 (1979) (similar failure excused where defendant was a prior offender and parolee with presumed knowledge of the law and offense of second-degree murder was a grievous one), were at odds with People v Thalacker, 99 Mich App 372, 375; 297 NW2d 670 (1980) (Lendzian and Jones wrongly decided; provisions of GCR 1963, 785.7[1][f] may only be waived where a sentence bargain is made). The Sylvester panel joined the Lendzian and Jones rationale, stating:
"We disagree with the restrictive ruling of Thalacker and hold that the trial court’s error herein was harmless. In so holding, we note the conclusion of the Supreme Court in Guilty Plea Cases, 395 Mich 96, 113; 235 NW2d 132 (1975), regarding general adherence to the rule’s requirements:
" 'We conclude that the policy expressed in [People v Shekoski, 393 Mich 134; 224 NW2d 656 (1974)], that any failure of strict adherence to the procedure and practice specified in Rule 785.7 mandates reversal, should be modified. Noncompliance with a requirement of Rule 785.7 may but does not necessarily require reversal.
" 'Whether a particular departure from Rule 785.7 justifies or requires reversal or remand for additional proceedings will depend on the nature of the noncompliance.’
"This general holding is not applicable to all sections of the disputed court rule. In Guilty Plea Cases, the majority specifically held that noncompliance with subsection (b) of the rule 'will continue to require reversal’. Id., 118. However, we can discern no intent from Guilty Plea Cases that the holding quoted should not apply to the new court rules issued as part of the Supreme Court’s opinion, specifically GCR 1963, 785.7(1)(f).
"The present case closely resembles People v Lendzian, supra. As in Lendzian, the defendant indicated his understanding of the sentencing consequences of his decision to enter into a plea bargain. Where the defendant so understood the charge and sentencing imposable by the second-degree murder statute, the trial court’s failure to strictly comply with GCR 1963, 785.7(1)(f) does not constitute reversible error.” Sylvester, supra, 505-506.
We hold that Sylvester, applying Guilty Plea Cases, supra, aptly states the inquiry necessary to determine whether a specific failure to comply with GCR 1963, 785.7(1)(f) constitutes reversible error.
Our review of the facts in this case discloses that the defendant waived a reading of the armed robbery statute at the time of his plea. During the plea-taking proceeding below, however, the defendant was informed that armed robbery carried a potential term of "life imprisonment or any term of years up to life imprisonment”, thus imparting to the defendant the same sentence information embodied in the armed robbery statute. Thereafter, the following colloquy between the trial court and defendant took place:
"The Court: All right. Since you have entered a plea of no contest or nolo contendere, I again want to make sure you understand the nature of the charge that has been placed against you. It is a charge of armed robbery, and as I mentioned, carries with it a possible imprisonment of up to life or any term of years lesser than life.
"The charge is that on November 12, 1979, at the Log Cabin Store, south of Hillsdale, here in Hillsdale County, located in Woodbridge Township, and more specifically at 808 South Hillsdale Road, you did assault with a dangerous weapon, in this case, a knife, one Peggy Louise Wingate; that as a result of that assault and with that knife you did then and there at that time take from her or steal some property that she had in her possession or under her control, in this case, money or beer.
"And again I mention to you that the possible penalty is up to life imprisonment.
"Do you understand, Mr. Belknap, that if your plea of no contest or nolo contendere is accepted, that this would constitute a conviction of that particular charge placed against you; that it would be a conviction of the charge of armed robbery?
"Defendant Belknap: Yes.”
From this exchange it is apparent that the defendant, prior to the lower court’s acceptance of his nolo contendere plea, was made aware of and fully understood the offense with which he was charged and potential punishments. Applying the rule established in Lendzian and followed in Sylvester, we thus hold that the defendant’s plea to armed robbery is not rendered invalid by the lower court’s failure to strictly comply with GCR 1963, 785.7(1)(f).
The defendant also alleges as reversible error the failure of the trial court to require the defendant’s waiver of jury trial to be made in writing, pursuant to MCL 763.3; MSA 28.856. We disagree. In People v Sullivan, 38 Mich App 208, 209; 196 NW2d 2 (1972), this Court stated:
"Defendant argues that MCLA 763.3; MSA 28.856 requires that a waiver of a jury trial be in writing. By its terms this statute applies only to trial by a judge and has no application to a guilty plea.” (Emphasis added.)
Accord, People v Hibbitt, 74 Mich App 650, 651; 254 NW2d 602 (1977). Because the factors governing the plea-waiver doctrine are identical for pleas of guilty and nolo contendere, People v Riley, 88 Mich App 727, 729; 279 NW2d 303 (1979), citing People v Goodman, 58 Mich App 220, 222; 227 NW2d 261 (1975), the statute under which the defendant’s claim of error is based in equally inapplicable. Thus, the defendant’s allegation of error is without merit.
Affirmed.
If "strict compliance” means "make no errors on pain of reversal” it is a concept alien to the American Criminal Justice System and should be exorcised. Judges make mistakes. They always have and always will. Proper direction of the inquiry of reviewing courts is in the area of delivery of justice.
At first glance, the instant case would appear to be covered by the Supreme Court’s recent decision in People v Jones, 410 Mich 407; 301 NW2d 822 (1981). However, we find this decision distinguishable from the instant case. The confusion in Jones arises from the Supreme Court’s summary of the facts relating to one of the defendant’s (Abraham Jones’s) appeals. The Court stated:
"The judge did not tell the defendant [Abraham Jones] that he could not be put on probation for armed robbery nor did the judge tell the defendant that the maximum possible sentence was life imprisonment. Because of these omissions, the defendant argued in the Court of Appeals that his plea should be set aside. The prosecutor responded with a motion to affirm which the Court of Appeals granted on November 13, 1979. The defendant filed a request for review in this Court.” People v Jones, supra, 409. (Emphasis added.)
From this discussion, it would appear that the Court was going to require the information about armed robbery not being probationable to be given to fulfill a trial court’s burden to inform about maximum suid minimum sentences under GCR 1963, 785.7(l)(b) and (d), the rules which were at issue in Jones. However, there is no further mention in the Jones opinion of the trial court’s failure to mention that probation is unavailable for armed robbery. The Court then concluded:
"The judges in these cases — did not tell Abraham Jones that the maximum sentence for armed robbery is life imprisonment; and — did not tell Terrence Grant or Albert Grant that the maximum sentence for armed robbery is life imprisonment or that possession of a firearm in the course of a felony carries a mandatory two-year term of imprisonment.
"We once again advise the bench and bar that there must be strict compliance with Rule 785.7(1), subds (b) and (d). Consequently, in lieu of granting leave to appeal, we affirm the judgments of the Court of Appeals in the Grants’ appeals, reverse the judgments of the Court of Appeals in Jones’ appeals, and set aside those plea-based convictions.” Id, 412.
Thus, the sole basis for reversing as to Jones, with respect to subrules (b) and (d), was that the maximum sentence was not mentioned — not that the unavailability of probation was overlooked. We thus conclude that Jones is not authority for a holding that the failure to inform a defendant of the nonprobationable nature of an offense is per se reversible error.
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] |
N. J. Kaufman, J.
Defendant Cutler-Hammer appeals from the Oakland County Circuit Court’s denial on July 6, 1979, of its motions for judgment notwithstanding the verdict, new trial and remittitur. The motions were brought after a jury trial at which the jury returned a verdict of 1.5 million dollars in favor of plaintiff and against defendants Cutler-Hammer and Verson Allsteel, apportioned 95% and 5% respectively. The verdict as to defendants Mackworth G. Rees, Inc., and Rees, Inc., was no cause of action. Defendant Cutler-Hammer brings this appeal as of right, pursuant to GCR 1963, 806.1.
On May 16, 1974, while working as a press operator at Flanders Industries in Fort Smith, Arkansas, plaintiff lost four fingers on her left hand when a press malfunctioned, crushing her hand. At the time of the accident, plaintiff was 19 years old and had a life expectancy of 51 years.
There was considerable testimony as to the effect of the injury on plaintiffs lifestyle. In addition to the severe limitations on plaintiffs simple manual activities, this testimony revealed that since the accident, plaintiff has progressively withdrawn from public life.
Plaintiff has been disqualified from enlistment in the U.S. Navy because of her handicap. She applied for a position at General Electric for which she was more than qualified. However, at her interview, the company told her "they didn’t want to talk to [her] anymore”.
Plaintiff is presently studying to be an electronics technician. However, a rehabilitation specialist who gave plaintiff a finger/hand dexterity test concluded that plaintiff has a severely diminished capacity to perform the work of her chosen field. This specialist further testified that it was his opinion that plaintiff will have substantial difficulty in obtaining a job as an electronics technician or in retaining such a job.
Verson Allsteel manufactured the press involved in the instant case. Various portions of the press were furnished by Cutler-Hammer. The palm buttons were furnished to Verson by Cutler-Hammer but were manufactured by Mackworth G. Rees, Inc.
The press was equipped with dual palm buttons. The press would not operate unless both buttons were depressed. The dual palm system was considered to be a safety feature because a worker’s hand could not be in the area being pressed, since both hands had to be on the palm buttons.
Cutler-Hammer had ordered the palm buttons from a Rees catalogue and Cutler-Hammer deter mined their use. Cutler-Hammer designed the circuitry to be used in the palm button which would be incorporated in the press to be manufactured by Verson Allsteel. Verson Allsteel had no significant electrical design staff.
Plaintiff had been taught to operate the machine by picking up a piece of metal with her right hand, placing it in the die area, pressing the palm buttons with both hands, waiting until the die had come down and gone up, then reaching in with her left hand to retrieve the piece. When the accident occurred, plaintiff was reaching with her right hand to get another piece when the right hand palm button fell off. The slide then came down on her left hand and crushed it. After plaintiff jerked her hand out, the press continued cycling up and down.
An officer of Mackworth Rees testified as to the construction and normal operation of the press. He testified that the mushroom portion of the palm button sits on a shaft. A cotter pin is on the shaft to keep the contact discs on the shaft. When this cotter pin is removed, the machine is subject to stress and may fracture. Removal of the cotter pin takes place when the palm button contacts are cleaned by the press owner. If the cotter pin has been removed or bent, the fatigue potential of the metal increases. If the cotter pin fails, it is possible that the circuits could run and be energized, causing the press to trip. The officer of Mackworth Rees testified that an isolated contact would be safer to use than the two contact discs because in the event of a failure, the contacts would still be separate.
A Verson Allsteel employee testified that, at the time the press involved in the instant case was manufactured and sold, Verson bought the con trols from Cutler-Hammer and relied entirely on Cutler-Hammer’s expertise.
A retired Cutler-Hammer employee testified that good engineering practice did not dictate examining component parts which were standardized and purchased from other manufacturers.
Professor John Carey, Professor Emeritus of Electrical Engineering at the University of Michigan, testified on behalf of plaintiff. He testified that an electrical design engineer should have been aware of the need for isolated contacts. In his opinion, the malfunction of the press was a foreseeable situation for a design engineer to apprehend and guard against. Professor Carey testified that a failure mode analysis should have been made on the circuit before it was supplied to any users.
On appeal, defendant Cutler-Hammer raises three issues, only one of which merits extended discussion. Defendant argues that the trial court abused its discretion in denying defendant’s motion for a new trial or remittitur on the grounds of an excessive verdict of 1.5 million dollars for an injury involving the loss of four fingers.
In reviewing the decision of a trial judge to either grant or deny a remittitur or a new trial, this Court must determine whether or not there has been an abuse of discretion. Pippen v Denison Division of Abex Corp, 66 Mich App 664; 239 NW2d 704 (1976), lv den 399 Mich 823 (1977). Where there are no other errors in the trial, remittitur can be ordered only if the verdict is so excessive as to "shock the judicial conscience”. Id., 674.
A perusal of the cases discussing excessive verdicts discloses no mandatory approach for determining what amount in the context of a particular set of facts will "shock the judicial conscience”. In Pippen, the plaintiff lost an arm in an accident very similar to that involved in the instant case. The jury returned a verdict of $1,250,000 for the plaintiff. This Court held that this amount was not excessive.
While the plaintiff in Pippen lost his entire arm, Mr. Pippen at the time of his injury was 67 years old, while the plaintiff in the instant case was only 19 when she lost her fingers. Mr. Pippen’s life expectancy was 14 years; plaintiff Burnett’s was 51 years.
In Tomei v Bloom Associates, Inc, 75 Mich App 661; 255 NW2d 727 (1977), the jury awarded $250,-000 to the plaintiff who, as a result of dental malpractice, was injured to the extent that an area of her lower lip, about the size of a quarter, was permanently numb. This Court, in ordering remittitur, emphasized the relative lack of seriousness of the injury. The Court noted that there was neither disfigurement nor loss of a part of the body. The only actual effect on plaintiff’s life as a result of the injury was a feeling of self-consciousness when eating and testimony that she felt differently about kissing her husband.
Defendant argues that a significant similarity between Tomei and the instant case is that the jury award greatly exceeded the ad damnum clauses in both cases. Defendant emphasizes the amount requested in plaintiff Burnett’s ad damnum clause, $750,000, and deemphasizes the seriousness of her injury in order to bring the facts of the instant case within the parameters of Tomei rather than Pippen.
In the absence of any definitive test for determining excessiveness of a verdict, the question apparently turns on the facts of each case and the feeling of the appellate court viewing those facts. This subjective test, often phrased as that which "shocks the judicial conscience”, is often tempered by an appellate court’s reluctance to interfere with a jury’s disposition of a case. Were the facts of the instant case closer to those of Tomei than to Pippen, however, we do not believe we would be hesitant to order remittitur.
But, believing as we do that the case at bar much more closely approaches the situation in Pippen, and finding that an award of 1.5 million dollars for the loss of four fingers to a 19-year-old girl does not "shock our judicial conscience”, we will not disturb the award of the jury.
Additionally, we note that Cutler-Hammer’s arguments that the verdict should not stand because it was in excess of the ad damnum clause is not the rule in Michigan. GCR 1963, 518.3 makes it quite clear that this discrepancy is not fatal to a jury award. The rule states in pertinent part that "every final judgment shall grant relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings”. See also Piatkowski v Mok, 29 Mich App 426, 428; 185 NW2d 413 (1971), Gibeault v City of Highland Park, 49 Mich App 736, 738; 212 NW2d 818 (1973), aff'd 391 Mich 814 (1974), and see also Ravenis v Detroit General Hospital, 63 Mich App 79, 86; 234 NW2d 411 (1975), lv den 395 Mich 824 (1976), where the Court allowed an award in excess of the ad damnum clause, where no amendment to the clause had been made.
Concededly, the majority in Tomei, supra, stated that awards in excess of the ad damnum clause are not allowed unless there is proper amendment, which may be made after the verdict in the trial court’s discretion. Tomei indicated that liberal amendment should be the rule unless a jury award is not supported by the evidence. Id., 672; see also Precopio v Detroit, 94 Mich App 506, 510-511; 289 NW2d 34 (1979).
"We realize that failure to amend the pleadings to conform to the award is usually a technical error. However, consideration of such an amendment does require the court and the parties to consider the matter fully. We feel the trial court when granting a motion to amend the ad damnum clause must consider the reason for the amendment and can only grant the motion when the award is supported by the evidence.” Tomei, supra, 672-673.
In the present case, although the ad damnum clause was apparently never amended, the purposes of such an amendment were met. The trial court considered and denied motions for judgment notwithstanding the verdict and for new trial or remittitur. Thus, the trial court fully explored the question of whether the award was supported by the evidence. To now reduce the award for plaintiffs failure to request post-trial amendment of the ad damnum clause would be an exaltation of form over substance. It is noteworthy that, as the court rules are now amended, a pleading need not demand a particular monetary award unless the opposing party requests specificity. GCR 1963, 111.1(3), 309. We believe that the award made was supported by the evidence.
In the instant case, at the time of trial, plaintiff was unemployed. She had been rejected by the U.S. Navy and by the General Electric Company. Although she was going to school, the jury was entitled to consider whether or not plaintiff would ever get a job in her field or, indeed, whether she would be able to sustain another job at all.
The vocational rehabilitation consultant, Robert Ansell, had testified that, if plaintiff could secure employment in her chosen field, her earnings would be $20,000 per year. Although counsel for plaintiff believed that plaintiff would get a job, we cannot say, nor did he say, that the jury was bound by his view of plaintiff Burnett’s future. If the jury determined, as it was free to do, that plaintiff would never be gainfully employed, her damages for lost earnings would, indeed, have totalled over one million dollars. Mr. Ansell’s testimony was that despite plaintiff’s superior intellectual ability, her physical dexterity was in the lowest one or two percentile of the population. In view of these limitations, coupled with evidence of plaintiff’s deteriorating emotional state and social adjustment, the jury may have felt that plaintiff would never be gainfully employed. If this were the case, her lost earnings plus any award for pain and suffering, disfigurement, embarrassment and humiliation, could easily have equalled 1.5 million dollars.
As the Court stated in Pippen:
" 'As long as the amount awarded is within the range of the evidence, and within the limits of what reasonable minds might deem just compensation for such imponderable items as personal injuries sustained and pain and suffering, the verdict rendered should not be set aside.’ ” Pippen, supra, 675, citing Stevens v Edward C Levy Co, 376 Mich 1, 5; 135 NW2d 414 (1965).
The Pippen majority further stated:
"We must assume that the jury represented a cross-section of the community, with diverse experiences in life. It reached its unanimous decision after considerable deliberation. The jury had the benefit not only of listening to the testimony, but also close and extended observation of the plaintiffs and their relative vitality, energy, and seriousness of injuries.” Id., 676.
Similarly, in the instant case, the jury verdict came after long deliberations and was unanimous. Defendant has not claimed any error during the trial of this case. Thus, under the majority opinion in Pippen, the award is affirmed.
Furthermore, Judge Gillis, in dissent in Pippen, would have upheld the trial court’s grant of remittitur for the reasons that ”[t]he trial judge not only has the opportunity to observe the evidence in the case but is also singularly able to observe the jurors in considering whether or not they were motivated by passion or prejudice in their verdict”. Id., 680, quoting Wry v Dial, 18 Ariz App 503, 515; 503 P2d 979 (1972). (Emphasis in Pippen.) Taking the language from the minority as well as the majority opinion in Pippen, Cutler-Hammer has not suggested one incident which would have created prejudice or passion in the jurors. The trial court, after hearing the motion for new trial, including the claim of excessiveness and the request for remittitur, held that the evidence supported the verdict and his conscience was not shocked. Clearly, the trial judge was best able to observe the jury and he, with them, was best able to measure plaintiffs actual damages and the amount that would reasonably compensate her.
We believe that the award was consistent with the evidence and was in no way limited by plaintiffs counsel’s closing argument. We therefore uphold the award of the lower court.
Defendant’s second issue is framed as one of inconsistent verdicts. In reality, however, Cutler- Hammer is arguing that the verdict in favor of Rees and against Cutler-Hammer was against the great weight of the evidence. Cutler-Hammer’s motion for a new trial did not assert this issue and therefore Cutler-Hammer has not properly preserved this issue for review. Froling v Bischoff, 73 Mich App 496, 504; 252 NW2d 832 (1977).
Even assuming this issue had been properly preserved for review by this Court, the record provides ample evidence upon which the verdict could have been based. The palm button was sold by Rees from a catalogue. It was a shelf stock item which had a multitude of purposes. The use to which it was put was entirely up to the purchaser. The decision to use this type of palm button in conjunction with Cutler-Hammer’s circuitry was made by Cutler-Hammer. The jury could certainly choose to believe Professor Carey’s testimony that the circuitry designer, Cutler-Hammer, could have and should have foreseen the danger of using the Rees button with a dual control circuit.
The jury verdict in favor of Rees and against Cutler-Hammer was not against the great weight of the evidence and did not involve inconsistent verdicts.
Defendant’s final contention on appeal is that the trial court erred in ruling that the controversy as to cross-claim liability was governed by Arkansas law.
At trial, defendant objected to the application of Arkansas law to the cross-claim between Cutler-Hammer and Verson Allsteel. Cutler-Hammer alleged that Arkansas law had not been properly pleaded pursuant to MCL 600.2114a; MSA 27A.2114(1). The trial judge ruled that Arkansas law would be applied. We believe that this decision was correct.
Only minimal notice is required to fulfill the dictates of the statute. See Turner v Ford Motor Co, 81 Mich App 521, 527; 265 NW2d 400 (1978). In the instant case, Verson Allsteel asserted the application of Arkansas law in its first responsive pleading to plaintiff’s complaint.
Cutler-Hammer’s argument on appeal is that the application of Arkansas law to the issue of apportionment of damages is against the public policy of this state. These grounds were never asserted at trial and, thus, Cutler-Hammer has not properly preserved this issue for review.
In its motion for a new trial, Cutler-Hammer made vague reference to the public policy argument. However, even if this Court were to fully address Cutler-Hammer’s allegation, we would not find it persuasive. Since the time of trial in the instant case, the Michigan Supreme Court in Placek v City of Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979), has adopted the rule of comparative negligence. This fact belies Cutler-Hammer’s assertion that Arkansas law, which in certain instances allows for the apportionment of damages, is against the public policy of Michigan. Although Placek was decided after the time of trial in the instant case, the subsequent adoption of comparative negligence in Michigan indicates that there was, at the time of trial, nothing inherently incorrect or violative of Michigan’s public policy in employing Arkansas law when that law was otherwise applicable to the instant case.
Affirmed. Costs to plaintiff.
Bashara, P.J., concurred. | [
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Per Curiam.
Ernest Rouse, Jr., a resident of the Michigan School for the Deaf in Flint, Michigan, by his next friend, Ernest Rouse, sued the State of Michigan, alleging that he was assaulted by two fellow students who shared his dormitory room at the School for the Deaf. Plaintiff alleged that defendant was negligent in placing plaintiff in the same room with the two students who allegedly assaulted him and in failing to supervise and control those students.
Defendant filed a motion for summary judgment under GCR 1963, 117, contending that plaintiff’s claim is barred by the principle of governmental immunity, MCL 691.1407; MSA 3.996(107). The trial judge heard oral argument on defendant’s motion for summary judgment. Plaintiff’s attorney did not appear, and the motion was granted. Within seven days of the grant of the motion, plaintiff’s counsel filed a motion for rehearing of oral argument, alleging that his failure to appear was due to a scheduling error. Plaintiff’s motion for rehearing was granted.
At the rehearing, plaintiff’s counsel argued that even if the educational aspect of the Michigan School for the Deaf was a "governmental function” under MCL 691.1407; MSA 3.996(107), and therefore entitled to governmental immunity under that statute, the residential aspect of the school was not. Counsel for defendant repeated her arguments that both the educational and residential aspects of the school were governmental functions entitled to immunity. After hearing the arguments of both counsel, the trial judge issued his opinion from the bench, finding that both the educational and residential aspects of the Michigan School for the Deaf were governmental functions entitled to immunity. Defendant’s motion for summary judgment was granted. Plaintiff appeals as of right from the trial court’s order.
The doctrine of governmental immunity in Michigan is presently embodied in MCL 691.1407; MSA 3.996(107), which provides:
"Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is affirmed.” (Emphasis added.)
Plaintiff concedes that the Michigan School for the Deaf, being a component of the Michigan Department of Education, is a "governmental agency” under the foregoing section. MCL 691.1401(c), (d); MSA 3.996(101)(c), (d). The sole question which the parties dispute in this appeal is the definition of the statutory term "governmental function”.
The parties acknowledge, in their briefs on appeal, that the Supreme Court justices have divided as to the standard for determining what consti tutes a governmental function under the foregoing section. An exhaustive review of the opinions discussing the definition of a governmental function is not necessary here. A survey of the criteria used by the justices of the Supreme Court, together with a brief review of the application of those criteria in the recent decisions of this Court, indicate that the trial court did not err in finding the residential aspect of the Michigan School for the Deaf to be a governmental function entitled to immunity.
Three of the justices of the Supreme Court define a governmental function as an activity which is "sui generis governmental — of [the] essence [of] governing * * * an activity * * * [which] can only be done by [the] government * * *". Parker v Highland Park, 404 Mich 183, 193-194; 273 NW2d 413 (1978) (plurality opinion by Justices Fitzgerald, T. G. Kavanagh, and Levin). See also Perry v Kalamazoo State Hospital, 404 Mich 205, 215; 273 NW2d 421 (1978) (dissent by Justices T. G. Kavanagh, Levin and Fitzgerald), Pichette v Manistique Public Schools, 403 Mich 268, 281; 269 NW2d 143 (1978), and Thomas v Dep’t of State Highways, 398 Mich 1, 21; 247 NW2d 530 (1976) (dissent by Justices T. G. Kavanagh and Fitzgerald; Justice Levin concurring in the dissent). This viewpoint was elaborated in Thomas, supra, as follows:
"The test then, of 'governmental function’ for purposes of the immunity statute, must be phrased in terms of the nature of the specific function. We conclude that a function is not 'governmental’ in this context unless the particular activity that this function entails is uniquely associated with those activities having 'no common analogy in the private sector because they reflect the imperative element in government, the implementation of its right and duty to govern’. Thus, a government is immune only when it is planning and carrying out duties which, due to their peculiar nature, can only be done by a government. The mere fact that a governmental agency is doing a certain act does not make such act a 'governmental function’ if a private person or corporation may undertake the same act. Thus, 'governmental function’ is not delineated by questions of the broad scope of an activity undertaken or by financial or insurance considerations which may be indicative of a governmental undertaking, but rather by viewing the precise action allegedly giving rise to liability, and determining whether such action is sui generis governmental — of essence to governing.” 398 Mich 1, 21 (dissenting opinion by Justices T. G. Kavanagh and Fitzgerald). (Footnote omitted.)
Applying these standards in recent cases, Justices Fitzgerald, Levin and T. G. Kavanagh found the following not to be governmental functions: (1) operation of a state mental hospital (Perry, supra); (2) operation of a general municipal hospital (Parker, supra); (3) operation of a school playground (Pichette, supra); (4) contracting out work on a highway construction project (Thomas, supra).
Justices Coleman, Ryan, and Williams interpret "governmental functions” as activities defined by common-law precedent at the time of the enactment of the governmental immunity statute. Thomas, supra, 8-9, Parker, supra, 203, Perry, supra, 211-212, and Pichette, supra, 287-290. These justices found that the operation of a municipal hospital (Parker, supra), a mental hospital (Perry, supra), a school playground (Pichette, supra), and highway construction (Thomas, supra), were governmental functions entitled to immunity. In each case, the justices noted that the activities were intended to promote the general public health or welfare and were exercised "for the common good of all”, Perry, supra, 213, Parker, supra, 204, Pichette, supra, 288-290, Thomas, supra, 11-12.
With the foregoing three-to-three split between the justices, the opinions of the seventh justice, Justice Moody, are critical. Justice Moody did not discuss his definition of "governmental function” in Pichette, supra, 403 Mich 268, 287. It was in Parker, supra, that he first set forth his interpretation. Justice Moody agreed with Justices Fitzgerald, Levin, and T. G. Kavanagh that the second sentence of the statutory immunity provision should not be regarded as preserving immunity according to the common law as it existed at the time of the statute’s enactment. 404 Mich 183, 199.
Justice Moody observed in Parker:
"Participation of modern government in our everyday existence is so pervasive that any presumption must rightly run to government responsibility and consequent liability rather than to immunity. Present realities dictate viewing immunity as a privilege, limited to those activities uniquely associated with governmental enterprise.
"To delineate a complete and balanced definition of governmental function within a simplistic format would be presumptuous. However, as a basic guideline, the crux of the governmental essence test should be founded upon the inquiry whether the purpose, planning and carrying out of the activity, due to its unique character or governmental mandate, can be effectively accomplished only by the government. Unless liability would be an unacceptable interference with government’s ability to govern, activities that fall outside this perimeter, although performed by a government agency, are not governmental functions and therefore not immune.” Parker v Highland Park, 404 Mich 183, 199-200 (Justice Moody, concurring). (Emphasis added.)
Summarizing, Justices T. G. Kavanagh, Levin, and Fitzgerald limit governmental functions to those which are "sui generis governmental” or "activity [which] can only be done by [the] government”. Justices Coleman, Ryan, and Williams interpret "governmental functions” as those activities conducted "for the common good of all” under the common-law precedent existing at the time of the enactment of the immunity statute. Justice Moody would find immunity where liability would be an unacceptable interference with the ability to govern and where the government is the only agency which can effectively accomplish the goals of the activity in question "due to its unique character or governmental mandate”.
The parties in the instant appeal dispute whether the residential function of the school must be considered independent from the educational function of the school, which plaintiff concedes is a governmental function. Plaintiff contends that the residential aspect of the Michigan School for the Deaf is "little more than a babysitting function undertaken by the [s]tate merely as a convenience, and which contributes little or nothing to the educational purpose mandated by our legislature”. Plaintiff goes on to argue that the residential aspect is neither necessary nor helpful to the function of providing special education for the deaf and concludes that it should be considered separately.
Defendant, on the other hand, contends that the housing of deaf students is a continuation of the educational function of the school. According to defendant, "the only way a centralized school can function is to feed and house the students”. Defendant argues that the educational and residential functions are related, citing Jacobs v Dep’t of Mental Health, 88 Mich App 503; 276 NW2d 627 (1979), where this Court considered whether an alleged assault committed by an attendant against a patient at a state mental facility was a governmental function. In Jacobs, the Court observed:
"Plaintiff’s reliance on Galli v Kirkeby is misplaced. That case only held that an activity which bears no arguable relationship to a governmental function cannot be an exercise or discharge of that governmental function. In the present case, under the circumstances related in the attendant’s deposition, which circumstances plaintiff has not refuted by pleading, deposition, affidavit or other documentary evidence, the alleged assault and battery by the attendant was sufficiently related to the function of the mental facility to be an exercise or discharge of it.” (Footnote omitted.) 88 Mich App 503, 506. (Emphasis added.)
Applying the foregoing language, together with Justice Moody’s criteria, defendant concludes that the residential function "bears a sufficient relationship” to the educational function and is therefore entitled to immunity. We agree.
In Perry, supra, Justice Moody specifically relied on the mandate of Const 1963, art 8, § 8 and MCL 330.1116; MSA 14.800(116), declaring that "services for the care, treatment, or rehabilitation of those who are seriously mentally handicapped shall always be fostered and supported”. 404 Mich 205, 214. Justice Moody, applying the test which he had formulated in Parker, supra, found in these provisions a governmental mandate that the activity in question (operating a mental hospital) could only be effectively accomplished by the government.
Perry, supra, provides a striking parallel with the present case. Defendant directs this Court to consider the same constitutional provision. Defen dant also cites MCL 393.51, 393.65; MSA 15.1401, 15.1415, which provide:
"Sec. 1. That there shall continue to be maintained the institution located at Flint for educating the deaf and dumb, which shall be known as the Michigan school for the deaf.” MCL 393.51; MSA 15.1401.
"Sec. 15. There shall be received in said school, as pupils, all such deaf children and partially deaf children whose defective hearing prevents them from receiving instruction in the common schools, to remain not beyond 21 years of age, as are in suitable condition of body and mind to receive instruction, and who are residents of this state, * * * without charge for tuition, boarding, lodging, or washing and without charge for such health services as may be established by the board of trustees: Provided, That any dependent child enrolled who is in need of surgery, medicines or medical attendance not available through the school’s established program and for whom circumstances make such services impossible under any other act shall receive the necessary surgery and treatment at the school’s expense: provided further, The board of trustees may substitute transportation in lieu of boarding, lodging, washing and other similar resident-school-services for those children who live within a radius of 10 miles of the school and whose educational opportunities would not be jeopardized by such substitution: And provided further, The board of trustees may in their discretion admit persons over 21 years of age under such conditions as may be deemed appropriate; and the trustees may admit children from any other state, but in such cases shall fix a tuition fee that is sufficient to cover all necessary expenses.” MCL 393.65; MSA 15.1415.
Defendant emphasizes the distinction between the housing of students at MSD and residential housing of students at other state-supported institutions, such as colleges. The foregoing statute reflects the Legislature’s mandate that the state’s deaf children are to be educated at one centralized school at Flint. The text of MCL 393.65; MSA 15.1415 suggests that the Legislature regarded the centralization of the special education program to be an important and beneficial feature. Thus, by mandate, the educational and residential functions are "related”.
A decision by this Court affirming the trial court’s judgment would not be inconsistent with its other recent decisions on the subject. In Deaner v Utica Community School Dist, 99 Mich App 103; 297 NW2d 625 (1980), this Court applied the reasoning of Justice Moody in Parker, supra, to find that a school district was entitled to governmental immunity against the claim that a student was injured while participating in a high school wrestling class. The Court specifically relied on the factors used by Justice Moody to distinguish mental hospitals from general hospitals. Deaner, supra, 108. The Court noted that the government plays a pervasive role in the area of education and that the constitution mandates education as a public policy. Id.
On the other hand, this Court has found various activities not to be governmental functions where they could be effectively accomplished by agencies other than the government because the activities were neither of a unique governmental character nor the subject of a governmental mandate. Berkowski v Hall, 91 Mich App 1; 282 NW2d 813 (1979) (municipally operated emergency medical services program), Daugherty v Michigan, 91 Mich App 658; 283 NW2d 825 (1979), lv den 408 Mich 853 (1980) (operation of recreational area), Ross v Consumers Power Co, 93 Mich App 687; 287 NW2d 319 (1979), lv gtd 408 Mich 959 (drainage district not immune from liability arising out of construction of drain), Peter Bill & Associates, Inc v Dep’t of Natural Resources, 93 Mich App 724; 287 NW2d 334 (1979) (determination of DNR to approve or disapprove the salvaging of materials located on state land; court found state’s act in protecting its property rights no different from those of private property owners), Rubino v Sterling Heights, 94 Mich App 494; 290 NW2d 43 (1979) (operation of municipal water system), Keenan v Secretary of State, 103 Mich App 82; 302 NW2d 602 (1981) (administration of a driver’s license examination), Cronin v Hazel Park, 88 Mich App 488; 276 NW2d 922 (1979) (operation of a rollerskating program by recreation department of municipal corporation not entitled to immunity).
Only Deaner, supra, is similar to the present case. In Deaner, as in Perry, the Court relied upon the fact that the activities in question were the subject of a governmental mandate, a factor which is critical under the analysis of Justice Moody. Given the foregoing pattern of decisions interpreting the statutory term "governmental function”, this Court affirms the trial court’s finding that the residential operation of the Michigan School for the Deaf is a governmental function entitled to governmental immunity.
Affirmed. No costs. | [
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Allen, P.J.
Defendant was charged with and convicted, on his plea of guilty, of armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm in the commission of a felony, MCL 750.227b; MSA 28.424(2). He was sentenced to 8 to 20 years in prison on the armed robbery charge and two years on the felony-firearm charge. He appeals as of right.
Defendant’s sole contention on appeal is that reversible error occurred at the plea proceeding because the trial court failed to advise defendant that he could not be sentenced to probation if his plea to armed robbery was accepted. See GCR 1963, 785.7(l)(f). This advice was not given to defendant until the sentencing judge stated as follows:
"On the — I might indicate to you it’s impossible to give you probation on a case where armed robbery is concerned. I’m sure the person who took this plea advised you of that.”
However, at the plea taking, the trial court told the defendant that the maximum sentence for armed robbery was life imprisonment and that he must serve the mandatory two-year felony-firearm sentence "before starting to serve on the life sentence”. Thus, before entering his plea, defendant knew he would not receive probation even though he was not informed that he could not be placed on probation. The question raised is whether this advice sufficiently complied with the explicit mandate of GCR 785.7(1)(f) that where a plea is to armed robbery, defendant shall be told "he cannot be placed on probation”.
In Guilty Plea Cases, 395 Mich 96, 113; 235 NW2d 132 (1975), the Supreme Court held:
"Noncompliance with a requirement of Rule 785.7 may but does not necessarily require reversal.
"Whether a particular departure from Rule 785.7 justifies or requires reversal or remand for additional proceedings will depend on the nature of the noncompliance.”
In at least three cases, the Court of Appeals has affirmed plea-based convictions in which the defendant was not told that he could not be placed on probation. In People v Freeman, 73 Mich App 568, 570; 252 NW2d 518 (1977), this Court held the defect harmless where "[a]s a result of the sentence agreement, defendant knew before he pleaded that he was going to prison if he pleaded guilty”. In People v Lendzian, 80 Mich App 323, 325; 263 NW2d 360 (1977), we found the omission harmless where defendant had been informed that armed robbery was "punishable by imprisonment in a state prison for life or for any term of years” and affirmatively stated his understanding of possible punishment. In People v Earl Jones, 94 Mich App 232, 236; 288 NW2d 385 (1979), defendant pled guilty to second-degree murder after being told that the offense carried a maximum sentence of life imprisonment but not being informed that the court could not grant probation. Noting that defendant was in violation of his parole, was charged with a serious crime, and was obviously familiar with the criminal justice system, our Court found the omission harmless because "[d]efendant had no expectation of being placed on probation”. Obviously, in the case before us, defendant knew he was going to prison if he pleaded guilty and had no expectation of being placed on probation.
We find only one case wherein the court’s failure to advise the defendant that he could not be placed on probation was reversible error. People v Thalacker, 99 Mich App 372; 297 NW2d 670 (1980). Defendant therein pled guilty to armed robbery and was sentenced to 8 to 13 years imprisonment. He was told that the maximum sentence was life but was not advised that he could not be placed on probation and the record was silent as to whether defendant knew he would serve time in jail if he pleaded guilty. After concluding that both Lendzian and Earl Jones were "wrongly decided”, the Thalacker majority concluded that the "clear import” of the court rule is "that a defendant must be told that he will serve some time in prison if he chooses to enter a plea”. Id., 375. We do not agree that Lendzian and Earl Jones were wrongly decided, but, assuming arguendo such to be the case, even under Thalacker no error occurred, since the record in the case before us affirmatively shows defendant knew he would serve at least two years in prison if he entered his plea.
The instant appeal was heard by this Court in January, 1981. On February 23, 1981, the Supreme Court issued an opinion in People v Abraham Jones, 410 Mich 407; 301 NW2d 822 (1981). Because the factual situation therein has certain similarities to the instant case, and because the Supreme Court found error, the question arises whether the Supreme Court, sub silento, overruled Freeman, Lendzian and Earl Jones. In that case the defendant, Abraham Jones, was advised by the trial court that if he pled guilty to armed robbery, the court would impose a sentence of "no more than 10 to 15 years”, but after receiving a presentence report might impose a lesser sentence. He was not told that the maximum possible sentence was life imprisonment, nor was he told that he could not be placed on probation. Because of the two omissions, defendant asked the Court of Appeals to set the plea aside. The prosecutor moved to affirm which was granted by the Court of Appeals, and defendant filed a request for review by the Supreme Court.
Upon review, the Supreme Court held:
"The judges in these cases
" — did not tell Abraham Jones that the maximum sentence for armed robbery is life imprisonment; and
"We once again advise the bench and bar that there must be strict compliance with Rule 785.7(1), subds (b) and (d). Consequently, in lieu of granting leave to appeal, we affirm the judgments of the Court of Appeals in the Grants’ appeals, reverse the judgments of the Court of Appeals in Jones’ * * People v Abraham Jones, supra, 412. (Emphasis supplied.)
In Guilty Plea Cases, supra, the Supreme Court held that the rule does "not require the judge to inform the defendant of all sentence consequences —only the maximum sentence, any mandatory minimum, and as appears below, if he is on probation or parole, the possible effect on his status as a probationer or parolee”. Id., 118. We do not interpret Abraham Jones as doing any more than repeating the mandatory requirements laid down in Guilty Plea Cases. Though defense counsel claimed error on the dual grounds that the trial court did not inform defendant of the maximum sentence and did not inform defendant he could not be placed on probation, the holding of the Court was limited to failure to strictly comply with subdivisions (b) and (d) of Rule 785.7(1).
Failure to inform the defendant that where a plea is to armed robbery he cannot be placed on probation is a subdivision (f) violation. Accord ingly, we hold that the decision in Abraham Jones does not extend the limited mandates of Guilty Plea Cases to require reversal whenever the court fails to inform defendant that he cannot be placed on probation. To hold otherwise would return to the rule of strict adherence laid down in People v Shekoski, 393 Mich 134; 224 NW2d 656 (1974). That rule was rejected in Guilty Plea Cases except for situations where Jaworsk rights were involved and where defendant was not informed of the maximum sentence, any mandatory minimum sentence, and any possible effect on his status as a probationer or parolee. In the instant case, defendant was informed of the maximum sentence, there was no mandatory minimum, and defendant was not on probation or parole.
Affirmed.
Not to be confused with Earl Jones, supra.
People v Jaworski, 387 Mich 21; 194 NW2d 868 (1972). | [
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Brooke, J.
This is an action for malpractice against defendant, who is a surgeon in active practice in the city of Lansing. The record discloses the following material facts: The plaintiff was injured as the result of a fall from a scaffold on the 24th day of August, 1909. His ankle was badly sprained, and perhaps otherwise injured. He immediately called a physician, Dr. Tooker, who prescribed a liniment which plaintiff applied for some three or four weeks. He later went to Dr. Tooker’s office where the ankle was examined, and the injury pronounced to be a bad sprain. The plaintiff continued to use a liniment upon the limb during the fall of 1909 and the winter of 1909-10. He did some work during this period, but found that when he worked the swelling in his ankle would become greater, and when he stopped work it would subside, in some measure. In the spring of 1910 plaintiff consulted Dr. Hagadorn, a physician of Lansing, who made an X-ray photograph of the ankle. Dr. Hagadorn prescribed different medicines, among them iodine, which was applied externally. Dr. Hagadorn’s treatment was continued a week or two, but the ankle did not respond to the treatment or grow better. In June, 1910, plaintiff consulted Dr. Nottingham, also of the city of Lansing. This physician also took an X-ray photograph of the ankle, and later put the injured member in a plaster cast. This was worn two weeks, taken off, and a second one applied. The second one was worn about three weeks, when it was removed. The ankle was no better. Plaintiff then consulted Dr. Gordon, who treated the injured limb with a hot solution and bandaged it. The swelling became somewhat reduced under this treatment, and during the summer of 1910 plaintiff was able to do some little work. During September of 1910 he undertook to perform ordinary labor, but found that the ankle became extremely painful and very badly swollen, so that he was forced to desist. By November 19, 1910, the ankle had assumed such a condition that Dr. Gordon, the attending physician, advised plaintiff his case was one which demanded surgical rather than medical treatment. Dr. Toles, the defendant, was thereupon called in consultation. What occurred at this consultation is set out in the testimony of Dr. Gordon who was sworn as a witness for plaintiff. In part, he testified as follows:
“I thought the condition at that time justified, and called for, amputation. That is why I called in a surgeon. I told Mr. Miller that I considered the case surgical. I called the surgeon for the purpose of consultation about the patient and advised what to do, but had in view an amputation. It was my judgment that the joint had become useless, and there was no use treating it any longer. Dr. Toles and I made a very careful examination- of the joint, and the doctor said to the patient that he could not promise him anything, but' that there was some chance of saving it. I think he made a remark like that. I knew in a general way of this Murphy treatment. I knew that it was reported in the journals that it had in some instances accomplished remarkable results. I knew that it was a treatment that was being used by Dr. Murphy, of Chicago, for chronic inflammatory condition of joints. Dr. Murphy is very famous as a surgeon of the joints. After the treatment the temperature came down. Along in the early part of February the limb resumed a condition similar to that in which the limb was at the time I called Dr. Toles. There was no time when the limb became anything like normal. Even at the time when the temperature came down and there was some subsiding of the enlargement, it was still greatly enlarged all the time. Even after the exploratory examination I still thought that amputation was advisable. While he was still under the anaesthetic I remarked that it should be taken off. I don’t know just why I said that because the case was really Dr. Toles’ case, and yet I had been interested in the case. I examined the tissues and looked at the leg, and I remarked in a kind of aside— I remembered saying it was better off than on. I did not consider that the ankle would ever become useful. I did not pose as an expert surgeon or anything of that kind. It was just simply my own notion of it.”
As a result of the consultation, it was determined by the defendant to attempt to save plaintiff’s foot and ankle by the use of what is known as the “Murphy Treatment.” This consists in the injection, by means of a hypodermic syringe, of a solution, the nature of which is not disclosed by the record. The first of these injections was administered November 20, 1910; the second December 3, 1910; and the third December 30, 1910. At the time the first injection was administered, the plaintiff’s temperature was about 102°, indicating, probably, that the diseased condition of the ankle was causing a serious constitutional disturbance. It was doubtless this fact which induced the belief expressed by Dr. Gordon that the plaintiff’s life could be saved only by amputation of the diseased limb. As a result of the injections, plaintiff’s high temperature subsided. After each injection, however, plaintiff suffered severe pain, which lasted from one to three days, requiring the administration of opiates for its relief. No marked improvement followed the use of the injection and on February 14, 1911, it was determined to undertake an exploratory operation. This was performed, and the bones on the inside of the ankle were laid bare for examination. The condition in which they were found is not disclosed by any expert testimony, although plaintiff testifies that he was assured by the defendant that the bones were all right and that a complete cure would follow. However, the ankle did not improve, but continued to grow markedly worse, until on August 7, 1912, about 18 months after the exploratory operation, plaintiff’s condition became so alarming (his temperature having arisen to about 104°) that it was obvious an amputation must be resorted to or he would certainly die. The foot was therefore, upon that date, cut off.
It appears from the record that four doctors were sworn on behalf of plaintiff, although the testimony of but two of them, Dr. Gordon and Dr. Holm, is set out therein.
Briefly stated, it was the claim of the plaintiff that the defendant was guilty of malpractice:
(1) In administering the injections which he describes as an experimental remedy; (2) in failing to relieve plaintiff’s pain after the administration of the several injections; (3) in carelessly and negligently conducting the exploratory operation in such a manner as to cut the muscles and tendons on the inside of the injured ankle, and in failing to support the same properly after the operation, so that plaintiff’s foot gradually turned outwards, and when his 'weight was imposed upon it, the foot turned completely over.
Upon the conclusion of the plaintiff’s case a verdict was directed for the defendant, upon the ground that the record contained no evidence tending to show that the treatment administered by the defendant in any of the particulars charged in the declaration was improper or conduced in any way to the loss of the plaintiff’s foot. It is obvious from an examination of this record that at the time Dr. Toles was called plaintiff’s ankle was in an extremely serious condition. It was in such a condition as, in the opinion of his attending physician, demanded amputation. Under these cir cumstances defendant tried a remedy which appears to have been known and approved by the profession, though perhaps not generally, and which in some instances of diseased joints had achieved remarkable results. It is apparent from the testimony of Dr. Gordon, the plaintiff’s own witness, that a favorable result from such treatment was scarcely to be expected; at most, it could only be hoped for. Inasmuch as the only alternative at that time was immediate amputation, it would, in our opinion, be a strange application of the law which would hold defendant responsible for its failure. In treating a broken or diseased limb, the implied contract between the surgeon and patient is not to restore it to its natural condition, but to use that degree of diligence and skill which is ordinarily possessed by the average of the members of the profession in similar localities, giving due consideration to the state of the art at the time. 30 Cyc. p. 1573, n. 35; 39 Cent. Dig. title “Physicians and Surgeons,” §28.
While the facts touching plaintiff’s injury and his subsequent treatment, step by step, are set out in the record by witnesses both lay and expert, there is absolutely no testimony from any witness in the record that the course pursued by the defendant was improper or contributed in any degree to the loss which the plaintiff suffered. No witness, lay or expert, testified that, under the circumstances of the case, the administration of the so-called Murphy treatment was not warranted. No witness, lay or expert, testified that, in making the exploratory operation, the muscles or tendons holding the foot in place were severed by the defendant. There is no testimony tending to show that the gradual turning of the foot, during the months succeeding the exploratory operation, was the result of that operation, rather than the result of the antecedent injury. It appears to be the contention of the plaintiff that, having laid before the jury the facts surrounding the injury, the subsequent treatment, and the ultimate loss of the limb, the jury, in the absence of all testimony of an expert character tending to show malpractice, should be permitted to draw inferences of negligent conduct on the part of. defendant. We have had occasion, very recently, to pass upon this identical question. In the case of Farrell v. Haze, 157 Mich. 374 (122 N. W. 197), the following request to charge was submitted on behalf of the defendant:
“The question whether the loss of the plaintiff’s foot was attributable to anything that the plaintiff claims the defendant did or omitted to do is a scientific question, which the jury cannot determine for itself, and can only be answered by an expert; and, inasmuch as no expert or medical man or surgeon has stated that the loss of the foot, in his opinion, came from anything the defendant did or omitted to do, therefore I charge you that you cannot take the loss of the foot into consideration in this case or hold the defendant liable therefor.”
We held, at page 392 of 157 Mich. (122 N. W. 107), that the preferred request should have been given. Upon the same point see, also, Wood v. Barker, 49 Mich. 295 (13 N. W. 597); Mayo v. Wright, 63 Mich. 32 (29 N. W. 832); Spaulding v. Bliss, 83 Mich. 311 (47 N. W. 210); and Neifert v. Hasley, 149 Mich. 232 (112 N. W. 705).
We are of the opinion that the circuit judge properly directed a verdict for defendant, and the judgment will stand affirmed.
McAlvay, C. J., and Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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Ostrander, J.
Respondent, on November 17, 1913, was a retail liquor dealer in Ann Arbor. On that day three students in attendance at the university of Michigan were furnished by respondent’s barkeeper with intoxicating liquor, which one of them paid for and which they drank in respondent’s saloon. It is provided (2 Comp. Laws, §5392), that:
“It shall not be lawful for any person by himself, his clerk or agent, to permit any student in attendance at any public or private institution of learning in this State, or any minor, to play at cards, dice, billiards or any game of chance, in any part of any building, in which spirituous liquors or intoxicating drinks are sold; nor shall it be lawful for any person, by himself, his clerk or agent, to sell or give to any student in attendance at any public or private institution of learning, in this State any spirituous or intoxicating drinks, except when prescribed by a regular physician for medicinal purposes; and any person who shall offend against either of the foregoing provisions of this section shall be deemed to have been guilty óf a misdemeanor, and on conviction thereof shall be punished as provided in section seven of this act.” (2 How. Stat. [2d Ed.] § 5068.)
Respondent was informed against for violation of this law and was convicted, the jury returning a verdict of “guilty,” adding, “without knowledge or intent.” Sentence was deferred and exceptions settled and, although a writ of error was sued out, it is made to appear that the trial court understood, and acted in conformity with the understanding, that a review on exceptions before sentence was desired, and counsel state that the issuing of the writ of error was an inadvertence. The people are content with the record, and the case will be considered as if no writ of error had issued.
The undisputed fact is that respondent was not present in his saloon when the liquor was sold, and it does not appear that his barkeeper knew that the young men who drank the liquor were students in attendance at the university. Respondent contends that the law should not be construed so as to make him responsible in this action for the conduct of his servant and, if such a construction is inevitable, that the law is unconstitutional. This contention was in various ways presented to the trial court.
It is unfortunate that the statutes relating to the sale of liquors do not with more certainty express the legislative intention. It is a general rule of criminal law that crime involves intention. By 2 Comp. Laws, § 5391, sales of liquor to a minor, intoxicated person, person in the habit of becoming intoxicated, Indian, and posted person, by any person except a druggist, is forbidden, and the fact of selling is made prima facie evidence of an intent on the part of the seller to violate the law. The language employed in this section implies that intent is a necessary ingredient of the offense. And so we have held that the good faith of the seller may be shown and may acquit him of a charge made under this section. People v. Parks, 49 Mich. 333 (13 N. W. 618); People v. Bronner, 145 Mich. 399 (108 N. W. 672); People v. Averill, 179 Mich. 224 (146 N. W. 189). See, also, People v. Thompson, 161 Mich. 391 (126 N. W. 466). Turning to the law governing sales of liquor by druggists, 2 Comp. Laws, § 5381 (2 How. Stat. [2d Ed.] § 5057), it will be found that sales to minors and others by druggists is forbidden, but no mention is made of the intent of the seller. And it was held in People v. Curtis, 129 Mich. 1 (87 N. W. 1040, 95 Am. St. Rep. 404), that criminal intent, or intent to violate the statute, is not an ingredient of the offense, and that the druggist must ascertain at his peril that the sale is a lawful one. This ruling was followed in People v. Sharrar, 164 Mich. 267 (127 N. W. 801, 130 N. W. 693), and, in an action for damages, in Bailey v. Briggs, 143 Mich. 303 (106 N. W. 863). It had been previously held, in People v. Roby, 52 Mich. 577 (18 N. W. 365, 50 Am. Rep. 270) (see, also, People v. Possing, 137 Mich. 303 [100 N. W. 396]; People v. Tolman, 148 Mich. 305 [111 N. W. 772]), that a statute which required all saloons to be closed on Sunday and prescribed a punishment for any person who violated the statute, warranted the conviction of a saloon keeper whose clerk, without his knowledge or consent, opened the saloon on Sunday morning to have it cleaned and meantime sold a drink to a casual customer. In Faulks v. People, 39 Mich. 200 (33 Am. Rep. 374), Mr. Chief Justice Campbell said:
“The court held that it was no defense to a charge of selling intoxicating liquor to a minor that the seller had reason to believe and did believe him to be of age. This we think was clearly wrong. It cannot be assumed that the legislature would attempt such a wrong as to punish as criminal an act which involved no criminal intent. There can be no crime where there is no criminal mind.”
Of Faulks v. People it was said in the Roby Case, 52 Mich, page 580 (18 N. W. 367, 50 Am. Rep. 270):
“It was held in Faulks v. People, 39 Mich. 200 [33 Am. Rep. 374], under a former statute, that one should not be convicted of the offense of selling liquors to a minor who had reason to believe and did believe he was of age; but I doubt if we ought so to hold under the statute of 1881, the purpose of which very plainly is, as I think, to compel every person who engages in the sale of intoxicating drinks to keep within the statute at his peril.”
In People v. Hughes, 86 Mich. 180 (48 N. W. 945), respondent was. charged with a violation of section 15 of the law, which makes it unlawful for any person to allow a minor to visit or remain in a room where liquors are sold or kept for sale, unless accompanied by his father or guardian. It appeared that the owner of the saloon was absent upon the occasion there in question, and it was held that the trial court was in error in holding that the proprietor was responsible for the failure of his agent to obey the law. In reaching this ‘ conclusion it was pointed out that other sections of the statute, including section 14, here involved, contained words showing an intention on the part of the legislature to make the saloon keeper responsible for the conduct of his agent, and that, reading the various provisions of the law together, some effect must be given to the omission in section 15 of all reference to the clerks or agents of the proprietor. If this case may be treated as an exception, it is the only one since People v. Roby in which the statute has not been regarded by the court as a police regulation, imposing criminal penalties irrespective of the intent of the offender to violate the law, and regardless of whether the principal or his agent was the offender, except as the act itself makes intent a necessary element of the offense.
The language employed in section 14, which is the section here involved, imports the legislative purpose to make the respondent responsible for the acts of his servant and as, following previous decisions, he would have been liable if he had personally sold the liquor to these students (People v. Longwell, 120 Mich. 311 [79 N. W. 484]; People v. Curtis, supra; People v. Sharrar, supra), he is liable for the particular sale although it was made by his servant in his absence. In other words, he must, at his peril, see to it that liquors are not sold in violation of this section of the law.
Given this meaning and effect, it is said the statute is repugnant to section 1 of article 14 of the Federal Constitution, and that it is class legislation. It is not pointed out that any particular privilege or immunity arising under the Federal Constitution, protected by the Constitution and common to citizens of the United States, is invaded. It is generally accepted doctrine that the exercise of the police power by the States is not affected by the fourteenth amendment
The statute forbids sales of liquor to any student in attendance at any public or private institution of learning in this State. It is said, in argument, and is true, that the effect of the legislation is to deny to adult students privileges enjoyed by other adult citizens, and to deny them during the school year rights and privileges which they may enjoy during vacation. So citizens living .in a local-option county may be, in the same way, stripped of privileges which are enjoyed by their neighbors in an adjoining county. A law which makes it improbable, if not impossible, that students shall patronize drinking places, is not so clearly beyond the police power that the courts may declare it invalid. It appears in the record before us that one of the young men to whom liquor was sold drank three or more times in respondent’s saloon, and afterwards visited one or more other saloons. He was arrested the same evening, charged as a disorderly person. An investigation by the university authorities resulted in his being suspended for the balance of the year. It is possible that the reasons of discipline and morale which influenced the university authorities in the particular case affected the legislature in a general way, and induced the enactment of this preventive legislation.
The exceptions are overruled, and the court advised to proceed to judgment.
McAlvay, C. J., and Brooke, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred. | [
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Bird, J.
Having been found guilty of bastardy in the Montcalm circuit court, respondent has removed the proceedings to this court by certiorari for review.
1. Complaint is made that the testimony relied upon by the people to prove that respondent was the father of complainant’s child was too uncertain to sustain the verdict. The weakness of the people’s case lay in the fact that the complainant, when first interviewed by the public authorities as to the paternity of her child, informed them that one Walter Nelson was the father, and, when questioned who he was, she would disclose nothing further than the fact that he was a stranger she had met at a dancing party at Trufant, a neighboring village. She also made a sworn complaint charging him with being the father of her child. But later she disclosed to the public authorities that respondent was the father of her child, and gave as a reason for her previous untruthfulness that respondent had prompted her to tell that story, and had threatened her with physical violence and death if she did not obey.
The jury had before them her conflicting stories, together with the explanation of why she had at first been untruthful about the matter. They also had before them the fact that complainant was a young girl, only 17 years of age, who lived with her grandmother in the country neighborhood where respondent resided. Instances of respondent’s attentions to and his manifestations of affection for the complainant were testified to by those who had witnessed them. They also had before them the fact that respondent was in the habit of exchanging work with the tenant on the grandmother’s farm, and that those occasions afforded the respondent an opportunity for doing the thing with which he was charged. Whether she told the truth when she declared that Walter Nelson was the father of her child, or when she charged that respondent was the father, was a question of fact for the jury. It was for them to determine which story, if either, was true. Kelly v. Freedman, 56 Mich. 321 (22 N. W. 820); Watson v. Watson, 58 Mich. 507 (25 N. W. 497).
2. Error is assigned because the court charged‘the jury that:
“It is admitted in this case that she has made statements wherein she charged a man by the name of Walter Nelson with being the father of the child, and, as admitted by counsel, it is a question that is very indefinite as to whether such a man existed as referred to by her. The claim is made by the people that no such man did exist, and, as I understand it, the defense do not claim there did; but it is offered by- the defense as showing she made a statement that was absolutely untrue.”
Counsel argue that these instructions were harmful because the respondent based his entire defense on the fact that Walter Nelson was the father of the child. We find nothing in the record of any claim made by either the respondent or his counsel that the defense was based upon the fact that Walter Nelson was the guilty party. On the contrary, there is testimony on the part of the respondent that he had given it as his opinion that one John Hansen, who resided with the grandmother, was the father of the child. Had that been the chief defense, we think there should be something in the record to disclose it. But if the court was in error in making the statement, his attention should have been called to it by counsel at the time. Not having done so, he is in no position now to complain of it.
3. Error is also assigned on the following instruction to the jury:
“You have the right to take into consideration the standing he has in the neighborhood, whether it is for honesty, integrity, and truthfulness.”
Counsel argue that the respondent was not charged with dishonesty, and that his honesty was- not an issue in the case, and therefore, when the jury were told that they had a right to consider his standing in the neighborhood for honesty and integrity, it was error. If this isolated portion of the charge is considered without reference to the context, we would probably agree with counsel. Upon the trial character witnesses were produced for and against the respondent. After instructing the jury generally as to the testimony of the witnesses, and the weight which should be given to it, he said:'
“Something has been said in regard to the credit and character of the respondent in the neighborhood where he lives for conduct toward women. You have ' the right to take into- consideration the standing he has in the neighborhood, whether it is for honesty, integrity, and truthfulness, or whether it is for conduct that shows a disregard of the rights of women and tenderness or lack of tenderness towards children of that age, and all coming before you in the way of testimony or evidence that satisfies you or throws light upon this transaction, and render such a verdict as you believe will be in accord with the evidence and the law as given you by the court.”
Respondent had attempted to show by his character witnesses that his reputation was good as regards his conduct toward women. When it is understood that the court was instructing the jury as to this testimony, when he used the words “honesty and integrity,” it is manifest that they were made use of in connection with respondent’s conduct toward women and children, and not generally, as would appear from the contention of counsel, and we think the jury must have so understood it.
We have considered the other errors assigned, but find no merit in them. The writ will be dismissed, and the judgment of the trial court affirmed.
McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred. | [
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Ostrander, J.
The suit was begun by summons. The sheriff of Gogebic county certifies that within said county of Gogebic the writ was served upon the defendant, Montreal Mining Company, by personally handing and delivering to and leaving with George H. Abeel, the superintendent and manager and an officer and agent of the above-named defendant, Montreal Mining Company, a true copy of the said summons, etc. The defendant pleaded in abatement of the action that it is a foreign corporation, organized and existing under the laws of the State of Wisconsin; that at the time of the commencement of this action “it was not doing business in this State of Michigan, or transacting or operating any business within said State, or coming within said State in any way * * *; that it had never within said State done or transacted any such business;” that it has no officer, agent, attorney, or counsel in the State of Michigan authorized to receive service of legal process or to appear for it in legal proceedings in any court in said State without its special direction and authorization; that none of its officers or agents has any office or place of business within the State, and it has not authorized any agent, officer, attorney, or counselor to appear for it in this suit, except for the special purpose of objecting to the jurisdiction of the court. The plea further sets out that George H. Abeel, on whom the summons was served, was not at the time of such service within the State of Michigan on official business for defendant, nor in an official character as an officer of defendant or otherwise, but casually and accidentally, and not as representing this defendant; that he was not then and there authorized to represent it as an officer or otherwise, or to receive service of legal process. It is further alleged that the cause of action in this suit arose out of the State of Michigan, and within the State of Wisconsin, in which latter State the decedent was employed by the defendant, and was working for it therein, under a contract made and to be performed therein, for wages due and payable therein. It prays judgment of the writ, and whether the court will take further cognizance of the action, and that the writ be quashed. The plea is verified. Plaintiff demurred to the plea, and the demurrer was sustained. Defendant pleaded over.
A judgment having been rendered in favor of the plaintiff, the first question this court is called upon to consider is the jurisdiction of the circuit court. 3 Comp. Laws, § 10442, was amended by Act No. 3 of the Public Acts of 1909, so as to read as follows:
“In cases where the plaintiff is a resident of the State of Michigan, suits may be commenced at law or in equity in the circuit court for any county in this State where the plaintiff resides or where service of process may be had, and suits at law may be commenced before any justice of the peace in such county, against any corporation not organized under the laws of this State, by service of a summons, declaration or chancery subpoena, within the State of Michigan, upon any officer or agent of the corporation, or upon the conductor of any railroad train, or upon the master of any vessel belonging to or in the service of the corporation against which the cause of action has accrued. And where the plaintiff is a nonresident of the State of Michigan, suits may be commenced in like manner against such corporations, in all cases where the cause of action accrued within the State of Michigan: Provided, that in all cases, except before justices of the peace, no judgment shall be rendered for sixty days after the commencement of suit, and the plaintiff shall, within thirty days after commencement of suit, send notice by registered letter to the corporation defendant at its home office.” (5 How. Stat. [2d Ed.] § 13521.)
It is by virtue of this statute and the service which was had in this case that jurisdiction of the defendant is asserted.
One ground of demurrer to the plea is that it is uncertain and ambiguous, and it is urged in this court on the part of the plaintiff, quoting from 1 Green’s Practice (1st Ed.), pp. 209, 211, and Gould on Pleading (by Hamilton), 87, 88 (see §57, 5th Ed.), that the plea lacks precision, and is open to the objection that it is double. It is also urged in the brief that, as it was originally filed and verified, it stated a certain conclusion of law, that by amendment this conclusion was omitted, that the plea has never since been verified, and is therefore insufficient in law. It is urged, further, that after the order sustaining the demurrer and overruling the plea had been entered defendant, through its attorney, filed a general notice of retainer, and later, without reservation, a plea of the general issue; that after judgment it filed a stay bond without reservation, and later entered into a general stipulation for extension of time to move for a new trial or settle a bill of exceptions. It is upon these grounds asserted that any rights which defendant had in consequence of the plea have been waived, and that the point raised by the plea is not for consideration by this court. The statute (Act No. 310, Pub. Acts 1905; 5 How. Stat. [2d Ed.] §12737) permits the assignment of error upon the overruling of the plea. Defendant duly excepted to the ruling, and lost no rights by pleading over.
The plea as amended is certain. The facts stated in it all relate to a single matter. The pleader evidently intended to negative the existence of all facts upon which, according to his construction of the law, jurisdiction could be predicated. It is true that a conclusion of law, namely, that the defendant was not transacting or operating any business within the State “so as to submit to the jurisdiction of the above entitled court,” is contained in the plea as filed and verified. The quoted language by permission of the court was struck out, and the plea was not again or thereafter verified. It does not appear from the record that any point was made in the court below that the plea was thereby rendered infirm, and as a mere conclusion of law is hardly the subject of an affidavit, and as the facts stated in the plea are verified, notwithstanding the presence or absence therein of the conclusion of law, which was eliminated, and the court below overruled the plea upon the merits, the objections which are made in this court are not sufficient to permit us to refuse to consider the plea.
It is evident that, if the judgment in question here had been rendered in another jurisdiction having a similar statute against a Michigan corporation, and it was sought to sue upon the judgment in the courts of this State, an objection that the foreign court had not acquired jurisdiction to render a personal judgment would be sustained. This upon the authority of decisions in the following and many other cases: Cella Commission Co. v. Bohlinger, 147 Fed. 419, 78 C. C. A. 467 (8 L. R. A. [N. S.] 537); Kendall v. Loom Co., 198 U. S. 477 (25 Sup. Ct. 768); Conley v. Alkali Works, 190 U. S. 406 (23 Sup. Ct. 728); St. Clair v. Cox, 106 U. S. 350 (1 Sup. Ct. 354); Goldey v. Morning News, 156 U. S. 518 (15 Sup. Ct. 559); Moulin v. Insurance Co., 24 N. J. Law, 222; Foster v. Lumber Co., 5 S. D. 57 (58 N. W. 9, 23 L. R. A. 490, 49 Am. St. Rep. 859, and notes). See, also, Marshall v. R. M. Owen & Co., 171 Mich. 232 (137 N. W. 204).
We held in Daniels v. Railway Co., 163 Mich. 468 (128 N. W. 797), in an opinion in which the foregoing and the next succeeding sections of the statute were set out, that the service upon a foreign corporation was valid; it appearing that the corporation was doing business in the State. As applied to such a case, we declined to hold the statute unconstitutional. The question of the constitutionality of the statute as applied to service upon the agent of a corporation not doing business in the State was mooted in National Coal Co. v. Mining Co., 168 Mich. 195 (131 N. W. 580), and in Young v. Reeves & Co., 172 Mich. 363 (137 N. W. 701, 139 N. W. 876), but was not decided, because in each of those cases defendant had entered a general appearance. In Showen v. J. L. Owens Co., 158 Mich. 321 (122 N. W 640, 133 Am. St. Rep. 376), it was held that section 10442, before the amendment of 1909, was limited in its application to foreign corporations transacting interstate commerce business in this State, and jurisdiction of the court in that case was sustained because it was found that the defendant was transacting a local business in the State. The court distinguishes corporations admitted to do business in the State, and thereby in a measure domesticated and domiciled here, and other foreign corporations. But it is contended that as to all foreign corporations not admitted to do business here the legislature intended and attempted by the amended law to confer upon the courts jurisdiction to render personal judgments in suits begun by residents, if process is served upon an officer or agent of the corporation within the State.
The court below, in the opinion overruling the plea, relied, as counsel for plaintiff relies, on Pope v. Manufacturing Co., 87 N. Y. 137, a decision which appears to have been followed in Tuchband v. Railroad Co., 115 N. Y. 437 (22 N. E. 360). The New York statute appears to be similar to our own. In the case first mentioned, service was made upon the president of a foreign railroad company temporarily within the State on his way to a seaside resort; the cause of action not arising in the State, and the corporation doing no business and having no corporate office or property within the State. It was held that the service was authorizéd by the Code, and, in effect, that the judgment was good in .the State, whatever its legal effect abroad might be. Like the State of New York, we have other provisions for reaching property of nonresident owners situated within the State. Our statute as it now stands still supports the construction given to it in Showen v. J. L. Owens Co., supra. To construe it as plaintiff contends we should is to do violence to the principle that courts may not draw to themselves jurisdiction over property or persons situate or living outside of the territorial range of the process which they may issue and may not be thereto empowered by legislation.
The plea should have been sustained, and the action dismissed. Consequently the judgment should be reversed, and no new trial awarded.
The judgment is reversed.
McAlvay, C. J., and Brooke, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred. | [
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The Court
held that the application was too late. The object of requiring notice to be given of the writ, is that the defendant in error may be apprised of the proceedings which are being taken; and when he is otherwise informed, and does not move promptly to take advantage of the omission, he will be held to have waived the objection. | [
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] |
Christiancy J.:
Admitting the case imade by the bill, can the bill be sustained? If not there is no propriety in discussing the evidence.
Construing the bill in the most favorable light for the complainant, the case is substantially this:
The complainant is a creditor of the Bank of Windsor (in the State of Vermont) which became insolvent in 1838. Thomas Emerson, being largely indebted to the Bank, and being the equitable owner of the undivided half of a farm in the county of Wayne, Michigan, the legal title to which stood in the name of Curtis Emerson and Royal II. Waller, turned out to the Bank, among other property, this equitable interest as security for a part of such indebtedness, giving a bond with sureties, that the property thus turned out should produce to the Bank the sum of twenty thousand dollars. Cnrtis Emerson and R. II. Waller, soon after (January, 1839) conveyed the legal title to Rufus Emerson and Edward R. Campbell, who were directors and agents of the Bank, but who took in their individual names, and without, so far as appears, any declaration of trust on the face of the deed, or by any written instrument; though the conveyance was in fact made in pursuance of, and for the purpose) of carrying into effect the arrangement made with the Bank by said Thomas Emerson ; the effect of the whole being to place in the Bank and Rufus Emerson and Edward R. Campbell, when acting in concert, the power to sell these lands, and apply the proceeds towards the payment of Thomas Emerson’s indebtedness.
Afterwards, in a suit brought by Thomas Emerson in Chanc.ery, in the State of Vermont, against the Bank, in reference to the securities or property so turned out, Carlos Coolidge was appointed receiver, and these securities were ordered to be sold, in such manner as to secure the interests both of the bank and said Thomas Emerson; but the receiver, on the 13th day of August, 1845, under the direction of, and by collusion with the officers of the Bank, made a pretended sale of the interest of the Bank in these lands to one Reuben Davis, for a very small sum, which, if paid at all, was paid by the Bank; Davis being the agent of the Bank, and taking the receiver’s deed in his own name, but really in secret trust for the Bank, and for the purpose of defrauding both Thomas Emerson and the creditors of the Bank. In pursuance of this sale, and to carry it into effect, and with the like fraudulent intent, said Rufus Emerson and Edward R. Campbell, who held the legal title as above mentioned, on the next day conveyed the land to said Dams, thus making Davis the apparent owner, while he in fact took the title only for the benefit and on behalf of the Bank.
The title, so far as it appeared of record, remained in Davis until the recording of his deed to Green & Skinner mentioned below, on the 30th day of July, 1857. In the meantime, on the 27th day of May, 1857, the complainant, for the purpose of enforcing payment of his debt against the Bank, commenced his suit in attachment in the Circuit Court for the county of Wayne, in this State, against the • Bank as a foreign corporation, and on the same day caused the land to be seized on the writ of attachment; by which he claims a legal and equitable lien for the payment of the judgment subsequently obtained in the attachment suit.
But, as now appears by the record in the registry of deeds, Davis, by deed dated the 7th day of May, 1857 (before the attachment), conveyed the lands to the defendants Green & Skinner, which deed, however, was not recorded till July 30th, 1857.
Green & Skinner are alleged to have been, at the time of the execution of this deed, the agents and directors •of the Bank, and to have taken their deed with full notice of the facts, withont the payment of any consideration, and in secret trust for the Bank.
No process in the attachment suit was served upon ■the Bank, and it never appeared in the cause; but the •complainant proceeded to judgment under the attachment Saw, and on the 28th day of September, 1857, obtained judgment for the sum of $8602.76. Execution has been issued .upon this judgment, and a levy made upon the lands.
The complainant files his bill in aid of this execution, insisting that the real title and beneficial interest in the land are vested in the Bank; that the deeds from the receiver to Davis, and from Davis to Green & Skinner 9 are fraudulent, and operate as a cloud upon the title, Which he asks to have removed as an obstacle to the ‘sale; and prays that the premises may be decreed to be ^sold by the sheriff on the execution, and that the Bank, and Green & Skinner, may be decreed to execute deeds to the purchaser; and for an injunction, &c.
Upon this statement of the case, and admitting all the facts stated in the bill, was the interest of the Bank in these lands subject to be taken upon a writ of attachment; or, in other words, could that interest be seized and sold on execution at law? If not, there being no property attached, and no service of the writ upon the Bank, and -no appearance on its behalf, the ^Circuit Court never acquired jurisdiction of the attachment suit, and there is no judgment to sustain the execution, or to serve as the basis of the present bill.
What then was the nature of the interest of the Bank in this land? The bill does not very clearly show the nature of that interest under the original arrangement with Thomas Emerson, while the title stood in the names of Curtis Emerson and R. H. Waller, or afterwards in the names of Rufus Emerson and Edward R. Campbell; but the equitable interest seems to have been held by the Bank, and the legal by the trustees, as security, with power m the trustees and the Bank together to sell and apply the proceeds to the debt of Thomas Emerson; and that he was interested in the proper disposition of the lands to reduce the liability of himself and his sureties on ■ their bond of indemnity.
In this condition it seems to have remained until the sale by the receiver to Davis, and the deed from R» Emerson and E. R. Campbell to him in 1845. By this sale, if in good faith, and if Davis paid the consideration, the whole title, legal and equitable, vested in him; but if the sale was merely colorable and fraudulent, for the purpose stated in the bill, it was void as to creditors, and left the equitable interest still in the Bank for the benefit of creditors, but standing merely as it did before the sale; the conveyance of the legal estate operating merely as a change of trustees, and placing Davis in the position previously occupied by R. Emerson and E. R. Campbell» If the Bank paid the whole consideration, and the sale was made to Davis in good faith, to be held for the use of the Bank, it might perhaps have cut off or extinguished all interest of Thomas Emerson; in other words, it might cease to be held merely as security; and, from that time, it might have been held by Davis under a new trust, in the execution of which the Bank alone and its creditors would be interested. But unless the trust was expressed on the face of the deed, or, at least, by some instrument in writing, the interest of the Bank would be merely a, resulting trust: — Rev. Stat. of 1838, p. 261, §27. And if the sale was made, as alleged in the bill, to defraud creditors, and the only consideration was paid by the Bank, it would still be a resulting trust, and nothing more; and in that event, the subsequent conveyance to Green & Skinner, without consideration and with full notice, and with the like fraudulent intent, clid not change the nature of the interest, but merely substituted them as trustees in the place of Davis; so that, in any view which can be taken of the case, the interest of the Bank never rose to a higher grade than that of a resulting trust, or a trust which the law implies as resulting from the whole transaction.
The complainant’s counsel insists — and such is the theory of his bill — that this being a mere naked and passive trust, was executed as a use, and vested in the Bank as a legal estate, by the operation of the Statute oí Uses, 27 Hen. VIII, Ch. 10, and thus became liable to execution against the Bank, like any other legal estate.
To this there are several conclusive objections:
1st. It does not satisfactorily appear that the English Statute of Uses ever had any operation within the territory now constituting the State of Michigan; and though we do not expressly decide the point, as it is not necessary to the decision of the present case, the authorities cited by the defendants’ counsel from the colonial history of Canada, and the decisions of the Ohio courts, for which we refer to his very thorough and elaborate brief, tend strongly, if not conclusively, to show that this statute never was enforced here while the territory remained under the jurisdiction of the British government; and if, subsequent to 1796, when the jurisdiction of the United States was extended over it, the statute, in any way, acquired force here (of which we have seen no evidence), its operation must have ceased on the 16th of September, 1810, when an act was passed (or adopted) by the Governor and Judges, expressly repealing all acts of the British Parliament and of the authorities of Canada : Gass Code, 119; Laws of 1820, p, 460; Laws of 1833, p. 563.
From the passage of this repealing statute till the Revised Statutes of 1846 took effect, March 1, 1847, there was no statute involving the principle of the Statute of Uses, or purporting to execute uses or trusts, or to convert them into legal estates: and trusts might be created or held as at common law, except so far as their creation might be affected by the Statute of Frauds, or the Revised Statutes of 1838, already cited, requiring all except resulting or implied trusts to be created or declared by writing.
By section three of chapter 63 of the Revised Statutes of 1846, the principle of the English Statute of Uses was adopted; -and it is insisted by complainant’s counsel, that the preceding section (two) which provides that “every estate which is now held as an use executed under the laws of this State, as they formerly existed, is confirmed as a legal estate,” is a legislative recognition of the fact that such a law had previously existed here. But if this were true, the statute could not so operate upon the past as to give a previous existence to a law which had not existed in fact; and if it had previously existed, it needed no such recognition. But I think it is fair to say that the statute does not undertake to determine the former state of the law, • but, in effect, merely to provide for the confirmation of any such uses as legal estates, provided there had been any such prior law. The question whether a law has formerly existed, is not one for legislative but judicial cognizance.
But the insertion of this section (2) in this chapter may be accounted for on a very obvious hypothesis. The whole chapter is copied almost literally from the Revised Statutes of New York (Vol 1, Tit. 2, part 2, Ch. 2, art 2, §46) in which the provision is found, in the same words, with the difference only that the reference there is to “any former statute of this State.’’
This language was entirely proper there, where they had adopted the Statute of Uses at an early day; but our Legislature, or the Revisor, finding no former statute on the subject, thought it bettor to refer to the “laws as they formerly existed,” so as to meet any previous state of the Law, on the principle that if it would do no good it could do no harm.
But secondly: Had the Statute of Uses been in full operation here at the time of these several conveyances, it would not have affected the present case : as that statute never operated upon mere resulting trusts, or trusts arising by operation or implication of law, but only upon those express trusts actually created by the parties: Garfield v. Hatmaker, 15 N. Y. 477; Moore v. Spelman, 5 Denio, 225. Nor did it apply to or execute trusts created by parol, except in those cases where the conveyance of the legal estate might' be by parol, as by feoffment: — Shep. Touch. Ch. 9, p. 213; 7 Bacon's Abr. 92; 1 Greenl. Cruise, Tit. xi, Ch. 2, note to §29, and authorities there cited.
We are next to inquire whether this trust was converted into a legal estate by Chap. 63 of the Revised Statutes of 1846 (Ch. 86 Comp. L.). Section three of this chapter enacts: “Every person who, by virtue of any grant, assignment or devise, now is or hereafter shall be, entitled to the actual possession of lands and the receipt of the rents and profits thereof, in law or in equity, shall be deemed to have a legal estate therein of the same quality and duration, and subject to the same conditions-as his beneficial interest.”
But if the language of this section were broad enough to include resulting trusts, it can have no such effect, since it is expressly provided by the 6th section, that “the preceding sections of this chapter shall not extend to trusts arising or resulting by implication of law.”
And if the deed to Green & Skinner, which was made since this statute, is to be treated as a grant for a valuable consideration paid by the Bank; then, so far from this statute executing the trust as a use, not even a trust resulted in favor of the Bank (§ 1); but, unless a fraudulent intent were disproved, the trust would result [directly to the creditors, under the provisions of the 8th section : See Garfield v. Hatmaker, above cited.
Where the title before the conveyance has been vested in the debtor himself, and he has conveyed for the purpose of defrauding his creditors, the right of creditors to levy and sell rests upon the ground, that the deed being void as to creditors, the legal title, as to them, still remains in the debtor, as if no conveyance had been made. The land may therefore be sold on execution at law, without invoking the aid of a court of equity; and the purchaser may, if he chooses, try the question of fraud in an action at law: — Cleland v. Taylor, 3 Mich. 201 and cases cited; and he may, .doubtless, file his bill in a proper case, after sale, to remove the cloud created by the fraudulent conveyance. But it is generally more advantageous to all parties, and therefore more common, for the creditor to bring his bill before sale, in aid of the execution. And this may be done at any time after the creditor has obtained a lien upon the land by his judgment, when that, of itself, creates the lien, or only after the levy of an execution, where, as in this State, the levy is necessary to give the lien.
But if the title has never been in the debtor, and the fraudulent conveyance has been made by some other person on a secret trust for the benefit of the debtor, the setting aside of the fraudulent deed would still leave the title out of the debtor, as much as if the deed had been valid; the only difference being, that there is a different trustee.
We are therefore all clearly of opinion that neither the attachment on which the complainant’s judgment is based, nor his execution, could be levied upon the interest of the Bank, as a legal estate in the land.
Was it, then, subject to levy and sale on execution at law as a trust?
In England, under the Statute of Frauds, 29 Ch. II, c. 3, Sec. 10, trusts of the debtor in real estate might be seized on execution, and the possession of the lands de livered to the creditor; for no sale of lands was there made on execution. But this provision is said not to have extended to the colonies, and several of the states have never adopted it: See 1 Greenl. Cruise, Tit. xii, eh. 2 note to § 31, and authorities there cited. This statute, or one of similar operation, has been adopted in several of the states, and in most cases extended to the sale of the land subject to the trust. These statutes constitute the basis of most of the decisions cited by complainant’s counsel as tending to show that the trust was recognized as a legal estate. In most of these decisions the statute is expressly referred to: — See Foote v. Colvin, 3 Johns. 216; Jackson v. Bateman, 2 Wend. 570; Pitts v. McWhorter, 3 Kelley, 5; Thompson v. Wheatley, 5 S. & M. 499; Goodwin v. Anderson, 5 S. & M. 730; Hall v. Harris, 3 Ired. Eq. 289. In other cases where the operation of the statute had rendered the principle familiar, general language is adopted without referring to the statute.
We have no such statute in this State, though it has been insisted that the clause “including lands fraudulently conveyed, with intent to defeat, delay or defraud creditors”— Sec. 1 of Chap, 10 Rev. Stat. of 1846; Comp. L. §3119 — has the effect to render trusts in lands liable to execution ; but, when the whole section, and especially the whole chapter is construed together, we think it is not susceptible of this construction.
The whole section is in these words, “The real estate of the debtor, whether in possession, reversion or remainder, including lands fraudulently conveyed, with intent to defeat, delay or defraud his creditors, and the equities and rights to redemption hereinafter mentioned, shall be subject to the payment of his debts, and may be sold on execution, as hereinafter provided.” We think the “real estate of the debtor” here intended is the legal estate, and not a mere equity or trust. And this is rendered the more clear by the fact that it specially provides for “ the equi ties and rights of redemption hereinafter mentioned.” The only equities or rights of redemption mentioned in the subsequent portion of the chapter, are the rights to redeem mortgaged real estate sold on execution. Now the right of the debtor himself and his heirs and assigns to redeem land sold on execution is clearly a legal estate, as by the express provision of the statute his title is not divested till the fifteen months (the period for redemption) has expired — Sec SO of this chapter — and the right of the mortgagor and Ms heirs and assigns to redeem is also, I think, the legal estate, his title not being divested until the time for redemption expires: it is only when some creditor of the execution debtor, or some person other than the mortgagor, having some interest in or encumbrance upon the mortgaged property, seeks to redeem, that the right can be viewed in the light of an equity. But whatever may be the extent of the u equities and rights of redemption” hero mentioned, the fact that these are specifically mentioned as made liable to execution cuts off all inference that any other equities, and more especially mere resulting or implied trusts, were intended to be included, without being mentioned at all. We can therefore have no doubt that the fraudulent conveyances in this section referred to, are those made by the debtor himself.
In some States, where judgments constitute a lien on real estate, it has been held that a creditor has, by his judgment, a lien on the equitable estate of the debtor, in like manner as at law on Ms legal estate: — Coutts v. Walker, 2 Leigh, 268; McNairy v. Eastland, 10 Yerg. 310; Chapron v. Cassady, 3 Humph. 661; and see Godbold v. Lambert, 8 Rich. Eq. 162: and upon the like principle, if correct, it may be difficult to see why the levy of an execution on the land subject to the trust, when judgments are not a lien, would not equally give an equitable lien: — See Story Eq. Jur. §1216.
Had the Bank been served with process, or appeared in the attachment suit, the judgment would have been binding upon the Bank generally, independent of the seizure of the property attached; and it might then have been important to discuss tbe principle which seems to have been recognized by these authorities; but as the. equitable lien upon the trust under these authorities is purely a creature of equity, and the equitable interest can not be sold on the execution, nor reached without the aid of a court of equity, and this aid is only afforded after a valid judgment has been obtained at law, it is quite evident the principle recognized in these authorities can have no application to the present case. The aid of the judgment can not be invoked to sustain the service of the writ when, without the service, there could be no judgment.
The decree of the court below, dismissing tbe bill, must be affirmed.
Martin Ch. J. concurred. | [
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] |
D. E. Holbrook, Jr., P.J.
The people appeal by leave granted an order of the Kalamazoo Circuit Court dismissing the case.
Defendant was arrested at 7:40 p.m. for driving under the influence of liquor (DUIL) in violation of a local ordinance substantially corresponding to MCL 257.625; MSA 9.2325. He was transported to the police station and, at 8:10 p.m., asked to take a Breathalyzer test after being advised of his rights in compliance with Michigan’s implied consent statute. MCL 257.625 et seq.; MSA 9.2325 et seq. Defendant refused to take the test because he wished first to consult his attorney.
At 9:20 p.m., defendant’s attorney arrived at the station and soon thereafter requested that the defendant be given a Breathalyzer test. The police refused to administer the test because it is standard department policy not to give a test if it is. requested after one hour from an initial refusal. This was the first time that defendant was advised of this policy. Police also refused the attorney’s request that he be permitted to have a blood test performed on defendant.
The district court denied defendant’s motion to dismiss. The circuit court reversed the order of the district court and dismissed the case. In dismissing, the court held that the defendant has the same right to be apprised of the police department’s policy and the results that would follow as he does of the other rights which are read to him. We agree.
The Michigan Vehicle Code makes admissible in DUIL prosecutions the amount of alcohol in a person’s blood as shown by chemical analysis. MCL 257.625a(1); MSA 9.2325(1)(1).
The statute provides that a person who operates a motor vehicle "is deemed to have given consent to chemical tests” if he is "arrested for driving a vehicle while under the influence of intoxicating liquor, or while his ability to operate a vehicle has been impaired due to the consumption of intoxicating liquor”. MCL 257.625c(1); MSA 9.2325(3)(1).
It is also provided, however, that a "person under arrest shall be advised of his right to refuse to submit to chemical tests; and if he refuses the request of a law enforcement officer to submit to chemical tests, no test shall be given”. MCL 257.625d; MSA 9.2325(4). If the driver refuses to take a test, the Secretary of State may suspend, revoke or deny issuance of a driving license. MCL 257.625f(1); MSA 9.2325(6)(1).
Although the relevant provisions of the statute are commonly called the "implied consent law” and it is provided that a person who operates a motor vehicle "is deemed to have given consent to chemical tests”, it is also provided that "no test shall be given” to a person who refuses to consent. The tenor of this statute is that the driver has a choice whether to submit to a test; if he does not submit, this evidence of his condition shall not be extracted from him. McNitt v Citco Drilling Co, 397 Mich 384; 245 NW2d 18 (1976).
The Legislature has provided an agonizing choice for one accused of DUIL. But the legislation does require that the tactical choice allowed be knowingly made. Pursuant to the statute, any person charged with driving a vehicle while under the influence of intoxicating liquor shall be informed: (1) he has a right to demand a test, (2) if he takes a chemical test administered at the request of a police officer he may have a person of his own choosing administer a test, (3) he has the option to take only the breath test, and (4) he has a right to refuse the test and the consequences of such refusal.
We are guided by these statutory requirements to hold that any person charged with DUIL must be informed of police regulations and rules, if any, that materially affect him to insure that the accused has an opportunity to make an informed decision. This is particularly so when one considers the impact of the choice and the fact that the person arrested does not have the assistance of counsel in deciding whether to submit to a test. See, Holmberg v 54-A Judicial Dist Judge, 60 Mich App 757; 231 NW2d 543 (1975).
In this case, defendant was deprived of the opportunity to make a knowing choice of whether to submit to the test when police failed to inform him timely of material departmental policy. We do not intimate an opinion in this decision as to the propriety of the departmental policy. We do say that police policy which prohibits a defendant from demanding a chemical test after a prescribed time must first be explained to the defendant, enabling him to make an informed decision.
Plaintiff points to language of the New Hampshire Supreme Court that states in Harlan v State, 113 NH 194, 196; 308 A2d 856 (1973):
"Other courts considering whether a person properly advised by the police may rescind an initial refusal to submit to an implied consent law blood-alcohol test and demand that the test then be administered have almost unanimously concluded that the test need not be administered once a substantial period has elasped from the initial refusal.”
However, the language in Harlan quoted by plaintiff is conditioned upon a person being properly advised by the police. In this case, we find that defendant was not properly advised.
Because of the foregoing disposition, we need not address the constitutional arguments. The decision of the circuit court is affirmed.
Affirmed. | [
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Bronson, J.
Plaintiff filed for divorce and custody of her minor child on April 9, 1976. On May 5, 1980, a judgment of divorce was entered ending the parties’ marriage of some 16 years. Defendant was awarded custody of the parties’ daughter. Plaintiff now appeals by right certain aspects of the property division and the trial court’s decision not to award her alimony. The custody disposition is not in issue.
We begin our consideration of the issues raised on appeal by noting the longstanding rule that the division of marital property or an award of alimony is a matter within the trial court’s discretion. This Court will not reverse a trial judge’s property or alimony decision unless it is convinced that, sitting in the lower court’s position, it would have reached a different result. Wilcox v Wilcox, 100 Mich App 75, 87; 298 NW2d 667 (1980), vacated on other grounds 411 Mich 856 (1981), and cases cited therein.
Plaintiff first argues that the trial court erred in awarding defendant the parties’ marital home on North Pearl Street in Tecumseh and the furnishings in the house. We are not convinced that, sitting in the trial judge’s position, our decision would have been any different. Plaintiff was also awarded a house with furnishings, albeit this house was still subject to a mortgage, while defendant owned the North Pearl abode outright. Furthermore, the division of property in a divorce action is not governed by mathematical formulas. The division need not be equal. Christofferson v Christofferson, 363 Mich 421, 426; 109 NW2d 848 (1961). The primary question is what is fair. Wilcox, supra. Defendant and his daughter were to live in the house on North Pearl Street. Since the parties’ daughter had grown up in this home, the court’s decision in this regard was eminently sensible.
After filing for divorce, plaintiff, who had a history of mental illness, was committed to Ypsilanti State Hospital for a period of some four months. Defendant received a bill for approximately $10,000 as the cost of the hospitalization. Plaintiff claims that the trial court erred in not holding defendant responsible for this bill. Supporting this holding are the facts that the hospitalization occurred after the separation of the parties, was presumably for plaintiff’s benefit, and nothing in the record suggests that defendant was responsible for his former wife’s mental illness.
While the financial position of the plaintiff and defendant are not equal, plaintiff apparently does have a monthly income of $311 to $330 per month in social security benfits. Furthermore, the house which plaintiff was awarded includes a rental unit. Finally, plaintiff testified that she had worked in a cafeteria for the Tecumseh School District during the 1977 through 1979 school years. Plaintiff made approximately $80 per week in this capacity during the periods when school was in session.
Nonetheless, we conclude that a remand is in order concerning this aspect of the case. From the record at hand, we are unable to determine if plaintiff is in a position to make payments on the debt. We note that the judgment of divorce orders plaintiff to pay as child support "that sum which is paid by the Social Security Administration on behalf of the minor child, Sherri”. It is unclear whether the sum referred to in the support order is in addition to the $311 to $330 a month plaintiff receives or is, in fact, the very same social security benefit. Furthermore, the record at hand strongly suggests that plaintiff may no longer be able to work due to her mental illness. At this time, plaintiff is required to make monthly house payments, although once again the amount is not clear on this record. On remand, the trial court should ascertain whether plaintiff is in any position to support herself and to make payments on the hospital bill. Depending on whether plaintiff is able to pay anything toward the bill on a monthly basis, the trial court may again require plaintiff to pay the whole bill or require defendant to pay the bill or modify the judgment so that each party is responsible for some portion of the hospitalization costs.
On the question of alimony, the trial court found:
"While plaintiff claims to have never been ill mentally or physically for a day in her life, the number of hospitalizations, the length of those hospitalizations, the testimony of the party and the other evidence during all the hearings in this cause convince the court that this otherwise intelligent woman has had some mental illness which appeared spora[d]ically during the marriage and separation. With a marriage of 16 years and a prior marriage between them of 4 to 7 years, the court is unwilling, at this time to foreclose plaintiff from seeking alimony in the future although none should be ordered now. We realize this may keep the hornets available to cause a commotion in the hornet’s nest, but we believe equity requires it.”
In our opinion these findings were inadequate under GCR 1963, 517.1 to inform us of how and why the trial court reached its conclusion that at the time it entered judgment in this matter no alimony should be awarded. See Nicpon v Nicpon, 9 Mich App 373, 376-378; 157 NW2d 464 (1968). However, this does not preclude review since this is an equity case in which our consideration is de novo on the record. Holbern v Holbern, 91 Mich App 566, 569; 283 NW2d 800 (1979).
Michigan case law reveals a number of factors which have been considered in evaluating whether alimony should be awarded. These factors include:
1. The past relations and conduct pf the parties. Johnson v Johnson, 346 Mich 418; 78 NW2d 216 (1956), Feldman v Feldman, 55 Mich App 147; 222 NW2d 2 (1974), Abadi v Abadi, 78 Mich App 73; 259 NW2d 244 (1977), lv den 402 Mich 870 (1978).
2. The length of the marriage. Abadi, supra.
3. The ability of the parties to work. Hoffman v Hoffman, 9 Mich App 715; 158 NW2d 78 (1968), Van Ommen v Van Ommen, 25 Mich App 652; 181 NW2d 634 (1970), Abadi, supra.
4. The source of and amount of property awarded to the parties. Pinchuk v Pinchuk, 317 Mich 523; 27 NW2d 81 (1947), Schaffer v Schaffer, 37 Mich App 711; 195 NW2d 326 (1972), Abadi, supra.
5. The age of the parties. Johnson, supra, Abadi, supra.
6. The ability of the parties to pay alimony. Ross v Ross, 24 Mich App 19; 179 NW2d 703 (1970), Hoffman, supra.
7. The present situation of the parties. Johnson, supra, Hoffman, supra.
8. The needs of the parties. Abadi, supra.
9. The health of the parties. Johnson, supra, Abadi, supra.
10. The prior standard of living of the parties and whether either is responsible for the support of others. Johnson, supra.
11. General principles of equity. Stathas v Stathas, 1 Mich App 510; 136 NW2d 713 (1965), lv den 377 Mich 698 (1966), Hoffman, supra, Ross, supra.
Applying these standards, we conclude that plaintiff must be awarded some alimony. Almost every factor cuts in favor of an award, and those that do not are neutral only. We are here concerned with the marriage of some duration. Defendant is definitely able to work and has held his current job since 1950. It is unclear on this record whether plaintiff is capable of working at all. However, if she has any capacity to work said capacity seems to be intermittent, and it is clear that plaintiff has no ability to perform anything more taxing than unskilled labor. Overall, by the trial court’s figures, defendant received $22,761 worth of realty and money along with a 1969 car, furnishings, and his interest in his pension. Plaintiff, on the other hand, received realty and money with a current value of $14,672 and furnishings. The only testimony concerning the source of the marital property was from plaintiff, who indicated that she was largely responsible for the accumulation of all marital assets. The record does not reveal the age of defendant. Plaintiff, however, is 55 years of age, and this fact will probably be detrimental to her ability to find work, even if she is able. Clearly, plaintiff is in no position to pay alimony. While defendant is by no means a wealthy man, his income does leave him with the ability to pay some alimony. This is particularly true given that he owns the home he was awarded free and clear. Plaintiff’s mental health is obviously not good. It is unclear on this record to what extent her illness impairs her present ability to function on a day-to-day basis. In terms of needs, apart from food and clothing, plaintiff must have sufficient funds to make a house payment. Defendant has no house payments. Furthermore, given plaintiff’s history of mental illness, it seems likely that she will need further professional help in the future.
On the record at hand, we cannot say how much alimony plaintiff should be awarded. We therefore remand to allow the trial court to make this determination. The award of alimony ultimately rendered can be taken into account by the trial court upon reconsideration of the parties’ responsi bility for the hospital bill. The trial judge may take further evidence to aid in the resolution of this matter.
Plaintiffs last claim on appeal is that the trial court erred in ordering "that the amounts now held in deposit with the First Federal Savings and Loan Association in the name of Arland McLain, Trustee for Sherri McLain, shall be the sole and separate property of Sherri McLain”, the parties’ daughter. Plaintiff correctly notes that it is improper for a judgment of divorce to allocate the parties’ property to their children. Snyder v Snyder, 42 Mich App 573, 579-580; 202 NW2d 504 (1972), and authorities cited therein. As concerns the account in question, however, the trial court found:
"The defendant has accumulated an account for Sherri’s education. This has come from the Social Security payments made to Sherri as a result of the plaintiffs disability. We note that if plaintiff [sic] had been a spendthrift unaware of or unresponsive to his obligations to Sherri, this sum would never have accumulated as it did. Whoever has custody should have that fund and hold it in trust for Sherri. This is the father. The sum rightfully belongs to the daughter for her benefit and is not really an asset of either of the parties or of this marriage.”
The question which must be resolved, then, is whether Sherri had any enforceable legal or equitable title in the savings account in the name of "Arland McLain, Trustee for Sherri McLain”. MCL 489.713; MSA 23.540(313) provides in perinent part:
"Whenever an account is opened by any person, describing himself in opening the account as trustee for another and no other or further notice of the existence and terms of a legal and valid trust than such description has been given in writing to the association, in the event of the death of the person so described as trustee, the withdrawal value of the account or any part thereof, together with the dividends or interest thereon, may be paid to the person for whom the account was thus stated to have been opened, and the account and all additions thereto shall be the property of the person. The payment or delivery to the beneficiary or designated person, or a receipt or acquittance signed by the beneficiary, or designated person, for any payment or delivery is a valid and sufficient release and discharge of an institution for the payment or delivery so made.”
See, also, MCL 487.702; MSA 23.302.
In May v American Savings Ass’n, 46 Mich App 668, 672-673; 208 NW2d 619 (1973), this Court stated that MCL 489.713; MSA 23.540(313) and MCL 487.702; MSA 23.302 do not by their terms make payment to the beneficiary mandatory even upon the death of the named trustee. Rather, the May Court saw the purpose of the statutes as the protection of financial institutions and not as a codification of any aspect of the law of trusts. In Boyer v Backus, 282 Mich 593, 617; 276 NW 564 (1937), cert den 305 US 644; 59 S Ct 147; 83 L Ed 416 (1938), reh den 305 US 674; 59 S Ct 248; 83 L Ed 437 (1938), the Michigan Supreme Court held that the placing of sums by one in a bank account as trustee for another does not in and of itself create an enforceable trust. In so holding, the Court relied on In re Totten, 179 NY 112; 71 NE 748 (1904), in which the New York Court of Appeals stated:
"After much reflection upon the subject, guided by the principles established by our former decisions, we announce the following as our conclusion: A deposit by one person of his own money, in his own name as trustee for another, standing aione, does not establish an irrevocable trust during the lifetime of the depositor. It is a tentative trust merely, revocable at will, until the depositor dies or completes the gift in his lifetime by some unequivocal act or declaration, such as delivery of the passbook or notice to the beneñciary. In case the depositor dies before the beneficiary without revocation, or some decisive act or declaration of disaffirmance, the presumption arises that an absolute trust was created as to the balance on hand at the death of the depositor.” Id., 125-126. (Emphasis added.)
During the trial, defendant indicated that he was holding the money for his daughter’s education. However, no evidence exists that this intent was ever conveyed to the daughter, Sherri, the intended beneficiary. Furthermore, no evidence exists concerning what would become of the trust funds should Sherri choose not to further her education. Defendant’s explicit statement that the trust was for his daughter’s education suggests that he may have actually intended a future gift of the funds contingent on Sherri furthering her education.
This issue was not vigorously litigated at trial. Apparently, the parties did not fully envision the ramifications of this problem. Thus, rather than simply declare the account a marital asset, on remand the trial court should take further evidence on the issue of the account’s status. Obviously, whether defendant has ever withdrawn money from the account will be relevant to a determination of this issue. If the trial court believes on remand that "unequivocal” evidence supports a finding that a valid trust has been established for Sherri’s education, giving her a cause of action should defendant not pay over the funds, it should also provide in the amended judgment a provision concerning the disposition of the funds should she die or choose not to pursue her education. Assuming no irrevocable trust is found on remand, it is in the trial court’s discretion to determine how this marital asset should be distributed.
Affirmed in part, reversed in part and remanded for proceedings consistent with this opinion. We retain jurisdiction. All remand proceedings and findings of fact to take place within 90 days of the date this opinion is officially released. No costs, neither party having prevailed in full.
The parties had previously been married in 1946 and divorced in 1953.
Defendant testified to having a take-home pay of $220 per week.
We are unable to determine from this record, however, whether this unit is in a state of repair fit for rental and, if so, how much this unit can command in rents.
We can appreciate, however, the difficulty which the trial court must have had in rendering its findings. The testimony adduced at trial was often vague, particularly as concerns plaintiff.
Admittedly, much of plaintiffs testimony regarding the source of the marital property seems difficult to believe. However, defendant never attempted to rebut this testimony.
On appeal, each side merely makes conclusory statements concerning the ownership of the account. | [
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] |
M. J. Kelly, P.J.
Plaintiff filed a complaint for divorce on September 29, 1971. The judgment of divorce was entered on December 3, 1973. A modified judgment of divorce was subsequently entered on March 28, 1974, requiring the defendant-father to support a minor daughter until she reached the age of 18 years or finished high school, whichever event occurred later, or until the further order of the court.
On November 14, 1979, plaintiff filed a petition to amend the judgment of divorce seeking an order directing the defendant-father to continue support and maintenance for his daughter to enable her to obtain a college education. At that time, the daughter was 18 years and 7 months old. The hearing on plaintiffs petition was held on August 7, 1980. The trial court granted a defense motion for dismissal based upon a perceived lack of subject-matter jurisdiction. From that decision this appeal is taken as of right.
In this appeal, plaintiff submits a single issue. It is alleged that under the facts of the case the trial court erred in granting defendant’s motion to dismiss because the trial court had subject-matter jurisdiction pursuant to MCL 552.17a; MSA 25.97(1). We affirm.
Plaintiffs reliance upon Price v Price, 395 Mich 6; 232 NW2d 630 (1975), and Charlton v Charlton, 397 Mich 84; 243 NW2d 261 (1976), is misplaced. In Price, the Supreme Court construed the petition for modification as pending on the effective date of the Age of Majority Act, MCL 722.51 et seq.; MSA 25.244(51) et seq., thus placing the petition within the act’s savings clause. MCL 722.54; MSA 25.244(54). The Court’s decision in Charlton is subject to a similar characterization since that appeal involved an objection to the support provisions in the parties’ original judgment of divorce. Because the plaintiff’s complaint for divorce was filed in late 1971, prior to the Age of Majority Act’s effective date, the Court held the proceedings also to be within the act’s savings provision. The importance of this distinction was recently summarized in McNames v McNames, 93 Mich App 477, 481; 286 NW2d 892 (1979), a case bearing substantial factual similarity to the instant dispute:
"It should also be noted that in Price the Supreme Court made specific reference to a prior voluntary agreement to continue support between the parties. We deem this to be of significance because, in our review of those reported cases where support was allowed to be continued, we have noted that in each there was either a prior agreement (Price, supra), or some form of reservation for future support in the original judgment of divorce, Barbier v Barbier, 45 Mich App 402; 206 NW2d 464 (1973), Milbrand v Milbrand, 66 Mich App 730; 239 NW2d 730 (1976). See also Anno: Statutory Change of Age of Majority as Affecting Pre-Existing Status or Rights, 75 ALR3d 228, especially § 7, pp 256-259.
"Here, there was neither an agreement nor any reservation for future support beyond age 18. Further, as in Allen v Allen, 63 Mich App 475; 235 NW2d 22 (1975), the instant petition was filed well beyond the effective date of the Age of Majority Act. We therefore conclude that the trial court was without authority to extend support in this case. We deem this result not necessarily desirable, but required.” (Emphasis added.)
See also Wagner v Wagner, 105 Mich App 388; 306 NW2d 523 (1981), quoting the same passage but contrasting McNames on the basis that, in Wagner, a voluntary stipulation was entered providing for postmajority support.
In this case, the question of postmajority support was not raised prior to the Age of Majority Act’s effective date. Thus, the savings provision of the act, under which prior orders for such support were upheld, is unavailable as a basis to vest the lower court with subject-matter jurisdiction to hear the plaintiff’s petition. We conclude, therefore, that the trial court was correct in denying the petition for modification on jurisdictional grounds.
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C. J. Hoehn, J.
Defendants appeal as of right an October 9, 1979, judgment rendered by the trial court granting a permanent injunction in favor of plaintiff and which also gave plaintiff monetary damages and unjust enrichment damages. These damages were based upon defendants’ misuse of plaintiffs trade secrets.
Defendant Kuberski was employed by plaintiff on October 17, 1973. Approximately one week after defendant Kuberski was hired by plaintiff, he signed an invention assignment agreement and a trade secret agreement.
Plaintiff manufactures silicone rubber sheets, dies, rollers, and sleeves to be used in hot stamp decorating. Plaintiff does not do the hot stamp decorating itself. Most of the processes and equipment used by plaintiff were developed by the founder of the company, Carl Gladen.
Defendant Kuberski met defendant Lunger while working for plaintiff. Mr. Lunger owned defendant National Pattern and Model Company and defendant Erie Marking Tool Company. Although plaintiff had previously used the services of Erie, the volume of business after this meeting substantially increased. The orders before this meeting were approximately $12,500 for the previous year. For the next year and two months, the sales volume was around $81,000. Before this meeting plaintiff did no business with National Pattern.
In October of 1976, defendants Kuberski and Lunger signed the articles of incorporation for defendant International Silicone. Defendant Kuberski resigned from plaintiff corporation on January 31, 1977. During the intervening time, defendant looked for equipment for International Silicone and made various phone calls. This suit was filed on March 17, 1977, charging defendants with misappropriation of trade secrets and confidential information, and plaintiff sought injunctive relief and damages for lost profits and unjust enrichment. A preliminary injunction was issued on April 25, 1978. A trial to the bench was held from April 24, 1979, through May 23, 1979.
The trial court found that defendant Kuberski’s trade secret agreement was valid and enforceable. It also found that, regardless of the contract, de fendant Kuberski was prohibited by the common law from disclosing trade secrets. The trial court found that plaintiffs manufacturing procedures manual, that plaintiffs bonding technique, that plaintiffs technology for manufacturing dies, that plaintiffs technology for manufacturing rollers and sleeves, that plaintiffs customer lists and project information, and that plaintiffs materials, supplies, and sources were all trade secrets. The court found that defendants had misappropriated each and every one of the above described trade secrets. The court awarded plaintiff lost profits for the time defendants were in operation. These lost profits were based upon plaintiffs selling price and margin of profit, not defendants’.
The court also rendered a judgment against defendants for unjust enrichment. This was based upon defendant Kuberski’s placement of orders with defendants National Pattern and Erie while Mr. Kuberski worked for plaintiff. The court also awarded plaintiff exemplary damages in the amount of $25,000 in cash. In all, defendants were found liable for $176,968.39, plus costs of $3,443.80, plus interest. Defendants were also permanently enjoined from disclosing or using any of plaintiffs trade secrets relating to the production, sale or use of material for hot stamp decorating.
Further facts, where necessary, will be included in the discussion of the issues.
Statement of Issues:
I. Whether the trade secrets agreement signed by defendant Kuberski one week after he was employed by plaintiff was valid.
II. Whether plaintiff has trade secrets which defendants used in violation of plaintiffs rights.
III. Whether plaintiff must prove that its alleged trade secrets and confidential information are not known to others in the trade.
IV. Whether the evidence supports the trial court’s finding that plaintiff is entitled to lost profits as the result of sales made by defendants.
V. Whether defendants Lunger, Erie Tool, and National Pattern were unjustly enriched because of defendant Kuberski’s placement of business with them when Kuberski worked for plaintiff, and if so, whether plaintiff can recover for unjust enrichment in addition to lost profits.
VI. Whether plaintiff was entitled to exemplary damages under the facts of this case.
VII. Whether the trial court erred in excluding the testimony of Ray Flynt, even on a separate record.
VIII. Whether the trial court erred in issuing a permanent injunction which prohibited defendants from ever disclosing or using trade secrets or confidential information of plaintiff.
IX. Whether the trial court should have granted defendants’ motion for a new trial and disqualified itself because of possible bias against defendants.
The Court will discuss these issues seriatim.
I. Whether the trade secrets agreement signed by defendant Kuberski one week after he was employed by plaintiff was valid.
A condition of employment that one may not disclose trade secrets is valid. O & W Thum Co v Tloczynski, 114 Mich 149; 72 NW 140 (1897). The condition may be implied if there is a confidential relationship. Id., 157-158. This condition does not violate public policy against restraint of trade because:
"To restrain him from making use of what he has not discovered is not an injustice to him, and does not abridge his right to work along those lines which would not be harmful to those to whom he has sustained a position of confidence.” Id., 161.
The statute which makes illegal any contract which prevents a person from engaging in any trade or profession does not apply to a trade secret agreement. Glucol Manufacturing Co v Schulist, 239 Mich 70, 74; 214 NW 152 (1927). A contract which restricts the employee only from disclosing trade secrets, and not from employment in the industry, does not violate the statute. When "one obtains a trade secret of another either under contract not to divulge the same or because of relationship of confidence or through his employment, he will not be permitted afterward to make use of such secret for his own benefit or to disclose it to others without the consent of the original possessor of the secret”. Dutch Cookie Machine Co v Vande Vrede, 289 Mich 272, 279-280; 286 NW 612 (1939).
Although one has the right to change jobs and use his learned skills, he does not have the right to disclose trade secrets. Allis-Chalmers Manufacturing Co v Continental Aviation & Engineering Corp, 255 F Supp 645, 653 (ED Mich, 1966).
The trade secret agreement signed by defendant Kuberski was executed one week after he was hired by plaintiff. The agreement provides:
"I agree not to communicate or disclose to any person, either directly or indirectly or under any circumstances or at any time, any knowledge or information whatsoever acquired by me during the period of my employment relating to or concerning the Company’s inventions, trade secrets, systems or any other confidential information regarding the property, business and affairs of the Company or any of its subsidiaries without the written consent of the Company, and I agree not to utilize or make available any such knowledge or information, either directly or indirectly, in connection with the solicitation of or the acceptance of employment with any competitor of the Company.”
The agreement was restricted to the disclosure of trade secrets. Defendant Kuberski is perfectly free to use his general skill and knowledge. This agreement does not violate MCL 445.761; MSA 28.61.
Even without an agreement specifically prohibiting disclosure of trade secrets, defendant Kuberski is prohibited by the common law from disclosing such trade secrets. O & W Thum Co, supra, 157-158. Defendant Kuberski’s own testimony indicated that he knew there was certain information he should not disclose to competitors.
Finally, defendant Kuberski’s contention that there was no consideration for the agreement, and it was therefore unenforceable, is without merit. MCL 566.1; MSA 26.978(1) provides that any agreement to change any contract is not invalid because of lack of consideration as long as the modification is written and signed. Defendant Kuberski’s attempt to restrict this statute to real property and personal property does not easily comport with the language of the statute itself.
It is this Court’s opinion that a valid and enforceable trade secret agreement applied to defendant Kuberski. There was no error by the trial court on this issue.
II. Whether plaintiff has trade secrets which defendants used in violation of plaintiff's rights.
The law gives no protection to knowledge which is so general as to be common property in the trade. Russell v Wall Wire Products Co, 346 Mich 581, 590-591; 78 NW2d 149 (1956). Kubik, Inc v Hull, 56 Mich App 335, 347-348; 224 NW2d 80 (1974), lists the steps in order to find whether the information is a trade secret. To be a trade secret the information must be: (1) valuable enough to give the possessor a .competitive edge over those who do not use the information or know of it; (2) secret, that is, sufficient measures are taken to guard the secrecy of the information and preserve its confidentiality; and (3) information which is not readily ascertainable, that is, incapable of being ascertained by the general public without extreme difficulty or hardship. See also Manos v Melton, 358 Mich 500, 508; 100 NW2d 235 (1960).
Whether plaintiffs processes were a trade secret is a question of fact. The trier of fact found that the processes were trade secrets.
This Court will accept the findings of fact of the trial court unless the record reveals no substantial evidence to support such findings. Tuttle v Dep’t of State Highways, 397 Mich 44; 243 NW2d 244 (1976).
The trial court record overwhelmingly supports the trial court’s findings in relation to the manufacturing processes which the trial court ordered protected.
The customer lists of plaintiff and plaintiffs sources of materials and supplies were capable of being discovered through research and investigation.
Defendant Kuberski did not discover the trade lists of customers and sources as the result of any independent research or investigation. Defendant Kuberski took advantage of his confidential relationship with plaintiff to avail himself of plaintiffs customer lists and sources of supply.
"Even conceding, as the Defendants contend, that all the trade secret information, acquired by the Defendants could have been legally obtained through investigation, research and the like, this does not negate the secrecy of the information, as to the present Defendants, nor does it negate their culpability, for they failed to employ legal, proper and fair means in learning these trade secrets.” Kubik, Inc v Hull, 56 Mich App 335, 352; 224 NW2d 80 (1974).
The trial court did not err in holding plaintiffs customer lists and sources of supply to be confidential information which defendants were not entitled to use. To hold otherwise would permit defendants to profit from their theft.
Kubik, supra, refutes the notion that all information garnered in a confidential relationship is enjoinable at the behest of the former employer.
However where, as here, written lists are stolen by a person in a confidential relationship, the use of such written lists is indeed enjoinable.
Defendants may, if such lists are publicly available, purchase and use such lists notwithstanding that plaintiffs customers, plaintiffs sources of supply or some of them are included on such public trade lists.
III. Whether plaintiff must prove that its alleged trade secrets are not known to others in the trade.
There is ample evidence, including the testimony of defendant Kuberski, from which the trial court could infer that the manufacturing processes were trade secrets and by implication, at least, not known to the general public. The findings of the trial court will not be disturbed where the evidence reveals supporting evidence. Tuttle, supra.
The Court will not repeat the statements of the law relating to customer lists and sources of supply set forth in section II.
Once plaintiff has established that a person in a confidential relationship has stolen its trade secrets or customer lists the burden of going forward with the evidence falls on the guilty party to establish that the trade secrets and customer lists are not in fact secret but are openly known in the trade.
IV. Whether the evidence supports the trial court’s ñnding that plaintiff is entitled to lost proñts as a result of sales made by defendants.
Defendants contend that, although an overwhelming percentage of its sales were made to plaintiffs customers, plaintiff failed to prove that if defendants had not made the sales plaintiff would have. Hence plaintiffs damages are speculative and cannot be recovered.
The general rule is that plaintiff may recover all damages resulting necessarily, immediately and directly from defendants’ breach but may not recover such damages as are contingent, speculative or uncertain. As the United States Supreme Court has said:
"Nor can we accept the view of that court that the verdict of the jury, in so far as it included damages for the first item, cannot stand because it was based upon mere speculation and conjecture. This characterization on the basis for the verdict is unwarranted. It is true that there was uncertainty as to the extent of the damage, but there was none as to the fact of damage; and there is a clear distinction between the measure of proof necessary to establish the fact that petitioner had sustained some damage, and the measure of proof necessary to enable the jury to fix the amount. The rule which precludes the recovery of uncertain damages applies to such as are not the certain, result of the wrong, not to those damages which are definitely attributable to the wrong and only uncertain in respect of their amount. Taylor v Bradley, 4 Abb App Dec 363, 366, 367; 100 Am Dec 415:
" 'It is sometimes said that speculative damages cannot be recovered, because the amount is uncertain; but such remarks will generally be found applicable to such damages as it is uncertain whether sustained at all from the breach. Sometimes the claim is rejected as being too remote. This is another mode of saying that it is uncertain whether such damages resulted necessarily and immediately from the breach complained of.’ ” Story Parchment Co v Paterson P Paper Co, 282 US 555, 562; 51 S Ct 248; 75 L Ed 544, 548 (1931).
Concerning uncertainty, the Court said:
" 'Whatever of uncertainty there may be in this mode of estimating damages, is an uncertainty caused by the defendant’s wrongful act; and justice and sound public policy alike require that he should bear the risk of the uncertainty thus produced * * Story, supra, 565.
Moreover, the Michigan Supreme Court has followed the principles articulated in the Story decision from at least the early 1860’s when Justice Christiancy wrote:
"The nature of the case is such that the wrong-doer has chosen to make it; and upon every principle of justice, he is the party who should be made to sustain all the risk of loss which may arise from the uncertainty pertaining to the nature of the case, and the difficulty of accurately estimating the results of his own wrongful act. Upon what principle of right can courts of justice assume — not simply to divide this risk, which would be thus far unjust — but to relieve the wrong-doer from it entirely, and throw the whole upon the innocent and injured party? Must not such a course of decision tend to encourage trespasses, and operate as an inducement for parties to right themselves by violence, in cases like the present?
"Since, from the nature of the case, the damages cannot be estimated with certainty, and there is a risk of giving by one course of trial less, and by the other more than a fair compensation — to say nothing of justice — does not sound policy require that the risk should be thrown upon the wrong-doer instead of the injured party? However this question may be answered, we cannot resist the conclusion that it is better to run a slight risk of giving somewhat more than actual compensation, than to adopt a rule which, under the circumstances of the case, will, in all reasonable probability, preclude the injured party from the recovery of a large proportion of the damages he has actually sustained from the injury, though the amount thus excluded can not be estimated with accuracy by a fixed and certain rule. Certainty is doubtless very desirable in estimating damages in all cases; and where, from the nature and circumstances of the case, a rule can be discovered by which adequate compensation can be accurately measured, the rule should be applied in actions of tort, as well as in those upon contract.” Allison v Chandler, 11 Mich 542, 554-555 (1863).
Further, our own Court has repeatedly held adversely to defendants’ claim:
"It has been observed that the certainty requirement 'will be relaxed where the fact of damage has been established and the question to be decided is the extent of the damage.’ 2 Harper and James, Law of Torts, § 25.3, p 1306. (Emphasis by authors.)
" 'The law does not require impossibilities; and can not, therefore, require a higher degree of certainty than the nature of the case admits.’ Allison v Chandler, 11 Mich 542, 555 (1863).
"On the principle that where a litigant can show he had been damaged, but his damages cannot be measured with certainty, that it is better that he recover more than he is entitled to than less, the rule in Michigan is that the risk of the uncertainty is cast upon the wrongdoer, not the injured party. Routsaw v McClain, 365 Mich 167, 171 (1961).” Howard v City of Melvindale, 27 Mich App 227, 235; 183 NW2d 341 (1970).
The fact of damage having been established, the burden of going forward with the evidence to show that plaintiff would not have made the sales was upon the defendants. Defendants failed in this burden.
V. Whether defendants Lunger, Erie Tool, and National Pattern were unjustly enriched because of defendant Kuberski’s placement of business with them when Kuberski worked for plaintiff, and if so, whether plaintiff can recover for unjust enrichment in addition to lost proñts.
The trial court found that defendant Kuberski diverted business to defendants Erie Tool and National Pattern in order to finance defendant Silicone. The evidence substantiates the trial court’s findings. The award of damages for unjust enrichment was proper.
Unjust enrichment is allowed for the wrongful placement of tooling orders with Erie Tool and National Pattern. Damages were awarded for the loss of profits accruing from the unlawful appropriation and use of trade secrets. These are separate wrongs which entitled plaintiff to separate recoveries. Neither one overlaps the other.
VI. Whether plaintiff was entitled to exemplary damages under the facts of this case.
Michigan law is clear that exemplary damages may be awarded in cases such as this. Exemplary damages may be awarded in a trade secrets case. Shwayder Chemical Metallurgy Corp v Baum, 45 Mich App 220, 225; 206 NW2d 484 (1973).
The purpose of exemplary damages is not to punish the defendant but to render the plaintiff whole. The focus is on plaintiffs injuries to determine the measure of exemplary damages. The focus is on the action of the defendant in determining if exemplary damages should be awarded. Peisner v Detroit Free Press, Inc, 68 Mich App 360; 242 NW2d 775 (1976).
Defendant’s conduct clearly entitled plaintiff to recover whatever exemplary damages it sustained.
The trial court found from the evidence that plaintiff suffered uncompensated damages by reason of defendant’s wrongdoing.
Many such elements of damage are incapable of ascertainment, e.g., the amount of time defendant Kuberski devoted to National Silicone when he was being paid by plaintiff.
The court did not err in awarding exemplary damages.
VII. Whether the trial court erred in excluding the testimony of Ray Flynt, even on a separate record.
Mr. Flynt was not on the list of witnesses exchanged by counsel prior to trial. Whether he was to be permitted to testify at the trial was discretionary with the court. The court did not abuse its discretion in refusing the proferred testimony of Mr. Flynt.
VIII. Whether the trial court erred in issuing a permanent injunction which prohibited defendants from ever disclosing or using trade secrets or conñdential information of plaintiff.
Whether a permanent injunction should be issued is a matter for the discretion of the court. Kubik, Inc v Hull, 56 Mich App 335; 224 NW2d 80 (1974).
The court’s conclusion that the permanent injunction was necessary in order to uphold defendant Kuberski’s contract with the plaintiff is amply supported by the facts and is affirmed.
IX. Whether the trial court should have granted defendants’ motion for a new trial and disqualified itself because of possible bias against defendants.
The proper procedure to secure the disqualifica tion of a judge is a motion for disqualification. GCR 1963, 912.
Defendant, not having followed the court rules, may not raise the issue for the first time on appeal.
Righteous indignation is not entirely inappropriate, even to a court of law.
The trial court is affirmed, plaintiff will recover its costs. | [
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Per Curiam.
Defendant was charged in two informations with receiving and concealing stolen property, MCL 750.535; MSA 28.803. After an evidentiary hearing, the trial court entered an opinion and order quashing the information in case number 78-07370 and denying a motion to quash in case number 78-07369. Defendant was tried and found guilty in a bench trial (Case No. 78-07369) before Recorder’s Court Judge Robert L. Evans on May 15, 1979. Defendant was sentenced on May 31, 1979, to a term of five years probation. Defendant appeals as of right.
The two informations against defendant arose out of two separate transactions between defen dant, a Mr. Kendricks and FBI agent John Insogna.
Defendant was first contacted by Insogna in mid-1977. Insogna indicated to defendant that he wanted stolen cars. Insogna contacted defendant approximately every two weeks thereafter until August, 1978. Defendant always told Insogna that he "didn’t have anything”.
On September 1, 1978, defendant delivered to Insogna a stolen car that Kendricks had given him. Defendant testified that he did not know the car was stolen. Defendant received $200 from Insogna. While in Insogna’s office, Insogna opened a drawer and lifted out bundles of money. He told defendant that the money could all be his if he delivered more goods.
On September 8, 1978, Kendricks again delivered a stolen car to defendant claiming that the owner needed insurance money. Defendant stated that he did not believe the car was stolen. Defendant delivered the car to Insogna and received $50. The defendant indicated to Insogna at that time that he would be willing to deliver five cars daily to Insogna.
The trial court conducted an entrapment hearing on the two charges. The court determined that the repeated solicitation by an undercover officer constituted entrapment. The court quashed the information relating to the September 1 transaction.
The court concluded, however, that the second transaction was not the "product of police creativity”. Defendant is now appealing his conviction from the September 8 transaction.
Defendant contends in effect that a new rule of law should be adopted by this Court. Specifically, defendant argues that once an initial transaction has been "tainted” by police misconduct constituting entrapment all subsequent similar transactions are necessarily "tainted” by entrapment.
Michigan has adopted an objective test for determining whether entrapment existed. This test focuses upon the police conduct involved rather than the predisposition of the defendant. People v Turner, 390 Mich 7; 210 NW2d 336 (1973).
As recently summarized in People v Alford, 405 Mich 570, 589-590; 275 NW2d 484 (1979):
"This Court in People v Turner, 390 Mich 7; 210 NW2d 336 (1973), adopted the objective test for entrapment articulated by Justice Stewart’s dissenting opinion in United States v Russell, 411 US 423; 93 S Ct 1637; 36 L Ed 2d 366 (1973). This test focuses on 'whether the actions of the police were so reprehensible under the circumstances, that the Court should refuse, as a matter of public policy, to permit a conviction to stand.’ 390 Mich 7, 22.”
In People v D'Angelo, 401 Mich 167, 183; 257 NW2d 655 (1977), the Court determined the standard of review to be applied when reviewing a finding of entrapment:
"To burden the defendant with proving his aifirmative defense of entrapment by a preponderance of the evidence is certainly not offensive to the Due Process Clause. Patterson v New York, [432 US 197; 97 S Ct 2319; 53 L Ed 2d 281 (1977)]; Rivera v Delaware, 429 US 877; 97 S Ct 226; 50 L Ed 2d 160 (1976); Leland v Oregon, [343 US 790; 72 S Ct 1002; 96 L Ed 1302 (1952)].
"We hold therefore that the defendant shall have the burden of proving the claim of entrapment by a preponderance of the evidence.
"In deciding the entrapment question the trial court should make specific findings of fact. Should the trial court find the claim of entrapment to be proved, the related charge will be dismissed. If the court finds the claimed entrapment not proved, the prosecution will proceed.
"The trial court’s finding will be subject to appellate review under the clearly erroneous standard.” (Footnote omitted.)
This Court believes that the above rules are clear and that defendant’s proposed "rule” should not be adopted. Entrapment must be determined from the circumstances of each individual transaction.
Therefore, we reject defendant’s new rule of law that, once an initial transaction has been "tainted” by police misconduct constituting entrapment, all similar transactions are necessarily "tainted” by entrapment. Rather, we apply the rule that the facts and circumstances of each similar transaction must be examined to determine whether the "taint” of the police activity is still present.
Applying the above rationale to the instant case, we are persuaded that the trial court clearly erred in finding that the second transaction, the one which occurred on September 8, 1978, could be sufficiently divorced from the initial transaction. Nothing occurred within the week to attenuate the police misconduct.
The relationship between defendant and the undercover agent did not consist merely of two isolated contacts in September of 1978. Rather, the agent, who first contacted the defendant in mid-1977, pressured the defendant every two weeks for a period of more than thirteen months before the September 1 transaction took place. Hence, we hold that the entire course of conduct by the agent constituted entrapment.
The police should not be permitted to set someone up and attempt to pressure him into a crime for an extended period of time and then claim that their questionable actions in no way induced a subsequent crime. Nothing in the one-week interval between the first transaction and the second acted to lessen the reprehensibility of the police conduct that the lower court found amounted to entrapment with regard to the September 1 sale. Therefore, we hold that under the facts of this case the lower court erred in not finding that defendant was entrapped on September 8.
Defendant’s conviction is vacated and the cause remanded for entry of an order quashing the information. | [
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Allen, J.
On June 7, 1978, Lester N. Turner filed a petition with the Michigan Tax Tribunal alleging excessive assessment of certain partnership property in 1975, 1976, and 1977, and requesting relief from the tribunal. No allegation was made that petitioner or any of the partnership owners had protested to the local board of review in any of the years on which appeal was taken. In October, 1979, respondent township filed a motion to dismiss the petition and, on November 9, 1979, petitioner moved to file an amended petition adding allegations of fraud, misfeasance, and malfeasance and adding a protest of the assessment for 1978.
Following briefs and argument on the motions before a hearing officer, Julianna B. Wilson, the motion to amend the original petition was denied, and the motion to dismiss was granted on grounds that under § 35 of the Tax Tribunal Act, MCL 205.735(1); MSA 7.650(35)(1), an assessment must be presented to the board of review before the Tax Tribunal may acquire jurisdiction. On December 6, a proposed judgment was entered by the hearing officer denying the motion to amend and granting the motion to dismiss the petition. Petitioner then filed exceptions and appealed to the entire Tax Tribunal which, on January 30, 1980, entered an opinion and judgment affirming the findings of fact and conclusions of law of the hearing officer. From that judgment petitioner appeals of right.
The property in question was a bar-restaurant and a party store known as the Brass Monkey Bar and Party Store located in respondent township near the Red Cedar River. During the tax years for which the assessment is disputed, the property was owned by a partnership, of which petitioner was one of three partners. In 1975, the property was assessed at $23,400. On April 19, 1975, the Red Cedar River flooded, severely damaging the partnership property. The premises were not repaired or rebuilt, and the business has not operated since that time. In 1976, the assessment was raised to $43,500, and notice of the change in assessment was sent by mail to the address shown on the tax roll, viz., "Turner, Dickerson and Taylor, 3201 S. Cambridge, Lansing, Michigan 48910”. No one representing the partnership appeared before the board of review to protest the 1976 assessment. In 1977, the property was again assessed at $43,500, and again the assessment was not protested. Nor was any protest made to the board of review of the 1975 assessment of $23,500 despite the fact that according to petitioner the salvage value of property following the 1975 flood was only $5,000.
Petitioner concedes that § 35 of the Tax Tribunal Act and a consistent line of current decisions, require protest before the board of review before the tribunal may acquire jurisdiction. However, petitioner argues that three judicially created exceptions have been made to the rule allowing review by the tribunal: (1) where the party assessed has no notice of the assessment; (2) where the requirements of board of review appearance would be an exercise in futility; or (3) where local officials have committed constructive fraud. According to petitioner all three exceptions exist in the instant case. We examine petitioner’s three claims of exception seriatim.
I. Notice.
Petitioner does not deny that notice of the 1976 increase was sent to one member of the partnership but claims that each member of the partnership must receive such notice. In Howland v Davis, 40 Mich 545 (1879), the Supreme Court held that notice to one partner was notice to all partners. Previously, the Supreme Court had held that a partnership is held to know conclusively any material fact known to any of its partners and to have notice of everything of which any partner had notice. Hubbardston Lumber Co v Bates, 31 Mich 158 (1875). More recently, this Court, citing Moran v Palmer, 13 Mich 367 (1865), opined that each partner is a general partner of the others and what is known to one is supposedly known to all. Robbins v Eotoff, 39 Mich App 589, 591; 197 NW2d 912 (1972). See also Osborn v Osborn, 36 Mich 48 (1877), and 60 Am Jur 2d, Partnership, § 135, p 62.
The statutorily prescribed notice requirements upon a change of assessment are:
"When the board of review makes a change in the assessment of property or adds property to the assessment roll, the person chargeable with the assessment shall be promptly notified in such a manner as will assure the person opportunity to attend the second meeting of the board of review provided in section 30.” (Emphasis added.) MCL 211.29(7); MSA 7.29(7).
"The supervisor or assessor shall give to each owner or person or persons listed on the tax roll of the property a notice by first class mail of an increase in the assessment for the year. The notice shall specify each parcel of property, the assessed valuation for the year and the previous year, the net change in assessment, and the time and place of the meeting of the board of review. The notice shall be addressed to the owner according to the records of the supervisor or assessor and mailed not less than 10 days before the meeting of the board of review. The failure of the property owner to receive notice shall not invalidate an assessment roll or an assessment on property.” (Emphasis added.) MCL 211.24c; MSA 7.24(3).
Petitioner’s interpretation of the statutory notice requirements, that notice must be given to each partner rather than to the partnership itself, is unreasonable. Under petitioner’s interpretation, all shareholders of a corporation whose property assessment is increased would have to be given notice of the increase. Since petitioner testified at the hearing before the Tax Tribunal that one of the partners, Mr. Taylor, lived at 3201 S. Cambridge, and since the unrebutted affidavit of the township assessor stated that notice was sent to the partnership at 3201 S. Cambridge, we find that proper notice was given.
II. Futility.
A second exception to the doctrine of the exhaustion of administrative remedies is found in the rule that the law will not require a citizen to undertake a vain and useless act. Where it is clear that appeal to an administrative body is an exercise in futility and nothing more than a formal step on the way to the courthouse, resort to the administrative body is not required. Trojan v Taylor Twp, 352 Mich 636, 638-639; 91 NW2d 9 (1958). The purpose of the doctrine of exhaustion of administrative remedies and the "futility” exception thereto is found in International Business Machines Corp v Dep’t of Treasury, 75 Mich App 604, 610; 255 NW2d 702 (1977).
"Exhaustion of administrative remedies serves several policies: (1) an untimely resort to the courts may result in delay and disruption of an otherwise cohesive administrative scheme; (2) judicial review is best made upon a full factual record developed before the agency; (3) resolution of the issues may require the accumulated technical competence of the agency or may have been entrusted by the Legislature to the agency’s discretion; and (4) a successful agency settlement of the dispute may render a judicial resolution unnecessary. See Judges of the 74th Judicial Dist v Bay County, 385 Mich 710, 727-728; 190 NW2d 219, 226 (1971).
"Exhaustion of administrative remedies is not an inflexible condition precedent to judicial consideration, however, and will not be required if review of the agency’s final decision would not provide an adequate remedy, MCLA 24.301; MSA 3.560(201), i.e., if it would run counter to the policies which underlie the doctrine.”
In the instant case, petitioner never protested the assessments or presented his case before the board of review even though more than three years had elapsed since the flood in April, 1975. The board of review was never given the opportunity to hear petitioner’s objections and to take corrective action. The fact that the board of review never had the opportunity to review the alleged overassessment was not the fault of the board of review. Just why the partnership waited so long to protest is not explained. Obviously the partnership knew of the flood and knew that the 1975 assess ment of $23,400 was substantially increased in 1976 and maintained at the higher level in 1977. Petitioner argues that since the damage caused by the flood was known to the board of review when it increased the assessment, petitioner could have offered nothing which would have changed the board’s mind. We disagree. Certainly the board of review would have no reason to know that even the 1975 assessment was considered by petitioner to be excessive. Many properties damaged by flooding are covered by insurance and, even if not insured, are repaired or restored to former value. Had the facts that the partnership did not intend to repair the damage or continue the business been presented to the board of review, it well may have adjusted the assessment. In Hutson v Royal Oak, 28 Mich App 393, 395; 184 NW2d 558 (1970), this Court said:
"The basis of exhaustion of administrative remedies is the presumption that the administrative agency, if given a chance to pass upon the matter, will decide correctly and will not fail in the performance of its duty.”
In the absence of facts to the contrary, we cannot assume that in the case before us the board of review, if given a chance to pass upon the matter, would have failed in its duty.
III. Motion to amend — constructive fraud.
The third ground upon which petitioner relies for exclusion from the doctrine of exhaustion of administrative remedies is the doctrine of constructive fraud as set forth and described in Helin v Grosse Pointe Twp, 329 Mich 396, 406-407; 45 NW2d 338 (1951):
" 'A valuation is necessarily fraudulent where it is so unreasonable that the assessor must have known that it was wrong. If the valuation is purposely made too high through prejudice or a reckless disregard of duty in opposition to what must necessarily be the judgment of all competent persons, or through the adoption of a rule which is designed to operate unequally upon a class and to violate the constitutional rule of uniformity, the case is a plain one for the equitable remedy by injunction.’ 4 Cooley on Taxation (4th ed), § 1645.
"Intentional overassessment is fraud. Sloman-Polk Co v City of Detroit, 261 Mich 689 [247 NW 95] 87 ALR 1294 [1933]. In the eyes of the law an assessment at variance with undisputed facts is a fraud upon the rights of the taxpayer. S S Kresge Co v City of Detroit, 276 Mich 565, 571 [268 NW 740] 107 ALR 1258 [1936].
"The use of a method of valuation which does not determine true cash values is fraud in law. Newport Mining Co v City of Ironwood, 185 Mich 668 [152 NW 1088 (1915)].”
Petitioner seeks in Count III of his amended bill of complaint to set forth facts bringing him under the protective umbrella of constructive fraud. In Count III petitioner avers that after the flood the respondent township knew that there was substantial damage to the property, knew that the premises no longer were occupied and would not permit rehabilitation without requiring substantial structural changes, and knew that the value of the property had diminished substantially but nevertheless proceeded to increase the assessment by some 86%, used a method of valuation not reflecting the decreased value, and that the assessment "was so unreasonable that the respondent should have or must have known that it was wrong”.
Since constructive fraud is an equitable doctrine, calling for the use of a court’s equitable powers, Spoon-Shacket Co, Inc v County of Oakland, 356 Mich 151, 160; 97 NW2d 25 (1959), we must first decide whether the Tax Tribunal possesses general equitable powers. On that question this Court has come to disparate conclusions. Holding that the Tax Tribunal lacks equitable powers is Romulus City Treasurer v Wayne County Drain Comm’r, 86 Mich App 663; 273 NW2d 514 (1978). Holding that the Tax Tribunal is vested with equitable powers is Edros Corp v Port Huron, 78 Mich App 273; 259 NW2d 456 (1977), and Eyde v Lansing Twp, 105 Mich App 370; 306 NW2d 797 (1981). This panel finds the better reasoning to be found in the Edros-Eyde opinions and consequently concludes that in the case before us the doctrine of constructive fraud could be employed if timely raised or not otherwise inapplicable.
However, the Michigan Tax Tribunal hearing officer denied petitioner’s motion to amend his original petition. MCL 205.735(4); MSA 7.650(35)(4) provides that a "petition * * * may be amended at any time by leave of the tribunal and in compliance with its rules”. Tax Tribunal Rule 225(2); R 205.1225(2) states: "A party may amend or supplement his pleading only by leave of the tribunal * * The grant or denial of a motion to amend is discretionary. Central Advertising Co v City of Novi, 91 Mich App 303, 317; 283 NW2d 730 (1979), Matson v Soronen, 57 Mich App 190, 193; 226 NW2d 52 (1974). Although amendment should be allowed liberally, this Court will not overturn a denial of a motion to amend absent a clear abuse of discretion. Ben P Fyke & Sons v Gunter Co, 390 Mich 649; 213 NW2d 134 (1973), Cobb v Mid-Continent Telephone Service Corp, 90 Mich App 349, 353; 282 NW2d 317 (1979), Grove v Story Oldsmobile, Inc, 31 Mich App 613, 617; 187 NW2d 923 (1971). Among the permissible reasons for denial of a motion to amend are undue delay, bad faith, or dilatory motive on the part of the movant. Fyke, supra, 659.
Although petitioner is attempting to -protest the tax assessments for the years 1975, 1976, and 1977, petitioner did not file his original petition until June 7, 1978. This is well beyond the proper time for protesting assessments before the local board of review as established by administrative guidelines. Petitioner did not move to amend his original petition until November 9, 1979, more than one year since the original petition was filed. The hearing officer found that petitioner did not explain why he could not have protested, and did not in fact protest, his assessment to the board of review and timely file a petition with the Tax Tribunal. It was only after respondent moved to dismiss the petition and filed its brief in support of its motion that petitioner moved to amend. Interestingly, respondent’s brief in support of its motion to dismiss the petition indicated that petitioner had not protested to the board of review or pled any of the possible exceptions to prior review in the board of review (including constructive fraud). The hearing officer found: "Apparently, petitioner believes that by inserting the words, 'fraud, misfeasance, and malfeasance’ within his petition (by amendment) he has somehow nullified the statutory procedural requirements established by the Legislature for the appeal of a property assessment”.
A panel of three Tax Tribunal judges unanimously agreed with the hearing officer’s findings of fact and conclusions of law in denying petitioner’s motion to amend his petition and in granting respondent’s motion to dismiss. We do not find this a clear abuse of discretion. Petitioner’s delay in attempting to allege constructive fraud, in excess of four years from the first assessment protested and in excess of one year since the filing of his original petition, was undue.
The order of the Michigan Tax Tribunal is hereby affirmed. No costs, a question of public interest being involved.
The Court of Appeals has consistently held that a petitioner must appear before the local board of review as a condition precedent to maintaining an action with the Tax Tribunal contesting assessments. Consumers Power Co v Big Prairie Twp, 81 Mich App 120, 158; 265 NW2d 182 (1978), Imerman Screw Products Co v City of Hamtramck, 67 Mich App 727, 730-731; 242 NW2d 505 (1976), Henal Realty Co v Brownstown Twp, 90 Mich App 374, 377; 282 NW2d 325 (1979).
Petitioner’s original petition, which pertained to the tax years 1975, 1976, and 1977, was not filed until June 7, 1978. The 1978 assessment was not disputed until plaintiff moved to file his amended petition on November 9,1979.
We also note that the decisional value of Romulus is weakened by reason of the Supreme Court’s decision to grant leave to appeal in that case with instructions to the parties to brief the Court of Appeals determination in Edros, 406 Mich 976 (1979). Romulus has been argued before the Supreme Court and an opinion on the merits is pending.
We make no determination as to whether petitioner’s motion to amend, coming after respondent’s brief in support of the motion to dismiss, could be considered to be in bad faith. | [
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Per Curiam.
Defendant was convicted by a jury of armed robbery and felony-firearm contrary to MCL 750.529; MSA 28.797 and MCL 750.227b; MSA 28.424(2). He was sentenced to the mandatory two years imprisonment for felony-firearm and 5 to 15 years imprisonment for the armed robbery. He appeals as of right.
Of the issues raised on appeal only three merit extended discussion.
Defendant first argues that his right to confrontation was violated when the trial court limited the full scope of defense counsel’s recross-examination of a key prosecution witness. Specifically, the defendant predicates error on the fact that he was precluded during recross-examination from showing that this witness had been unable to make an out-of-court identification of the three other persons who had been simultaneously arrested with defendant and, allegedly, were coparticipants in the robbery. He likewise complains about being precluded from showing that this witness misidentified an uninvolved person during a lineup identification. After reviewing the record, we are persuaded that the court’s action in limiting the recross-examination in this regard did not constitute reversible error.
It is well settled that the permissible scope of cross-examination during a trial is vested in the sound discretion of the trial court. Such discretion is not to be disturbed unless a clear abuse of discretion is shown. People v Taylor, 386 Mich 204; 191 NW2d 310 (1971), People v Johnston, 76 Mich App 332; 256 NW2d 782 (1977). The right of confrontation protected by the Sixth Amendment protects the right to cross-examine witnesses on evidence which is relevant to the matter being tried. People v Davis, 91 Mich App 434; 283 NW2d 768 (1979), lv den 407 Mich 868 (1979), People v Thompson, 76 Mich App 705, 711-712; 257 NW2d 268 (1977). Conversely, the Sixth Amendment does not create a right to introduce irrelevant evidence. Id. The court in determining the admissibility of relevant evidence must balance many factors including: the time necessary for presenting the evidence; how directly it tends to prove the fact in support of which it is offered; the potential for confusion of the issues or misleading the jury; and whether the fact can be proved in another way. People v Oliphant, 399 Mich 472; 250 NW2d 443 (1976), MRE 403. Relevant circumstantial evidence may be excluded if the above counterbalancing factors outweigh its probative value. People v Jordan, 23 Mich App 375; 178 NW2d 659 (1970).
Under the facts and circumstances of this case, the significance of the witness’s ability to identify all the alleged participants in separate lineups is only minimally relevant to his unequivocal identification of defendant. The witness was able to make in-court identification of defendant; he was able to pick defendant out of a lineup; he was able to identify the clothing worn by defendant. Defense counsel was allowed complete latitude in his cross-examination as to this positive identification of defendant. Further, the record only suggests that the three other persons whom the witness failed to identify were truly the coparticipants in the robbery. Indeed, these three persons were named by defendant as "alibi witnesses” who, if his testimony is to be believed, never were present at the scene of the crime. Additionally, two of the actual coparticipants stayed in the car outside of the restaurant so the witness never saw them except at a distance. Finally, this inability to identify the three other coparticipants from the lineup was fully developed and argued by defense counsel in the closing argument to the jury. As this challenged evidence only remotely bore upon the witness’s positive, unequivocal identification of defendant, we find no abuse in the trial court’s ruling and no improper restriction of defense counsel’s scope of recross-examination amounting to a denial of the fundamental right of confrontation.
Defendant also argues on appeal that his felony-firearm conviction must be set aside because the prosecution did not offer positive proof that the weapon was in operable condition. We disagree. No such duty is imposed by Michigan case law, and defendant’s argument, therefore, is without merit.
The general rule is that the prosecutor need not present proof of operability as an element of a prima facie case in a felony-firearm prosecution. People v Stephenson, 94 Mich App 300; 288 NW2d 364 (1979), People v Gibson, 94 Mich App 172; 288 NW2d 366 (1979). As the Gibson Court stated:
"The Supreme Court has found that the legislative purpose behind the felony-firearm statute is to deter the use of firearms due to their inherent dangerousness. Wayne County Prosecutor, supra. Therefore, the felony-firearm statute requires a construction in harmony with that finding, MCL 8.3; MSA 2.212.
"It is our opinion that the prosecutor need not present proof of operability as an element of a prima facie case in a felony-firearm prosecution. A contrary requirement would be inconsistent with the legislative intent of discouraging the practice of carrying guns in circumstances where harm is apt to occur.” Id., 177.
This rule was recently reaffirmed in People v Mason, 96 Mich App 47, 51; 292 NW2d 480 (1980), where the Court stated:
"We agree with the position taken in People v Gibson, 94 Mich App 172; 288 NW2d 366 (1979), that the prosecutor need not present proof of operability as an element of the prima facie case in a felony-firearm prosecution. To hold otherwise could prevent prosecution under the statute in cases where the weapon is not recovered, even though the victim testifies to its existence. Additionally, as was noted in Gibson, '[a] contrary requirement would be inconsistent with the legislative intent of discouraging the practice of carrying guns in circumstances where harm is apt to occur’. People v Gibson, supra, 177.”
See, also, People v Boswell, 95 Mich App 405; 291 NW2d 57 (1980).
Accordingly, we find defendant’s argument to be without merit.
Defendant also asserts that the trial court erred in refusing defendant’s request to explain to the jury the absence of an alibi witness with whom the defendant testified that he had spent the time in question. Defendant contends that he should have been permitted to call a process server to the stand to testify regarding the futile efforts to subpoena Mr. Coward. Defendant argues that this testimony was necessary to negate any adverse inference which the jury could draw from his failure to call the alibi witness and that this error was exacerbated by the prosecutor’s comments in closing argument that the jury should evaluate defendant’s testimony on the basis of whether or not it was corroborated. We find this argument to be without merit. It is well settled that a prosecutor is permitted to comment on a defendant’s failure to produce "corroborating” witnesses when ever the defendant takes the stand and testifies on his own behalf. People v Ovegian, 106 Mich App 279; 307 NW2d 472 (1981), People v Clemons, 91 Mich App 68, 73; 282 NW2d 838 (1979), remanded on other grounds 407 Mich 939 (1979), People v Hunter, 218 Mich 525, 528-529; 188 NW 346 (1922), People v Ford, 59 Mich App 35, 39; 228 NW2d 533 (1975), People v Hooper, 50 Mich App 186, 197; 212 NW2d 786 (1973), lv den 391 Mich 808 (1974), People v Gant, 48 Mich App 5, 8-9; 209 NW2d 874 (1973), People v Fuller, 44 Mich App 297, 299; 205 NW2d 287 (1973), aff'd 395 Mich 451; 236 NW2d 58 (1975), People v Falkner, 36 Mich App 101, 109; 193 NW2d 178 (1971), rev’d on other grounds 389 Mich 682; 209 NW2d 193 (1973). In those decisions the defendant himself testified or produced witnesses on his behalf.
This is in contradistinction to comments which parade before the jury the fact that the defendant initially gave notice of alibi witnesses but subsequently was unable or unwilling to produce such witnesses to testify in his defense. It is in this latter situation that prosecutorial comment can result in reversible error. People v Hunter, 95 Mich App 734, 737; 291 NW2d 186 (1980), People v Shannon, 88 Mich App 138; 276 NW2d 546 (1979).
In the case at bar, the jury was never apprised of the fact that the defendant had originally intended to call alibi witnesses but was unable to do so. Therefore, we conclude that no error requiring reversal resulted from the prosecutor’s brief reference to the fact that defendant’s testimony was uncorroborated.
We have examined the other issues raised by defendant and find them to be without merit.
Defendant’s conviction is affirmed. | [
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Per Curiam.
On April 18, 1972, Oakland County entered into two contracts with Ackron Contracting Company for the construction of portions of the Clinton-Oakland Sewage Disposal System. The contracts called for installation of sewer mains as well as for the restoration of areas disturbed as a result of construction. The drawings and specifications for the contracts were set out in two separate booklets specifically incorporated into the contract. At the same time, Argonaut Insurance Company, appellant herein, executed performance bonds as surety for Ackron’s performance of the contracts.
Ackron commenced construction under the terms of the contract and substantially completed all underground structures, the sewers and their appurtenances before ceasing operations in June of 1974. At the time of abandonment, Oakland County had disbursed monthly progress payments in the amount of $1,265,714.29 for contract T-3 and $698,005.26 for contract T-6. The final contract prices which would have been due to Ackron, had it completed the work, were stated by Oakland County to be $1,348,255.49 for contract T-3 and $750,133.77 for contract T-6. _
On February 26, 1976, Ackron filed a complaint against Oakland County, alleging that the county failed to pay certain amounts due Ackron for sodding in connection with the contracts, for additional work by Ackron that was not within the scope of the contracts, and for the balance due under the contracts. Oakland County’s answer alleged that Ackron had failed to perform its obligations under the contracts and counterclaimed for an amount in excess of $300,000 to cover expenses incurred in completing the project. On July 19, 1976, Oakland County successfully moved to add Argonaut as a counter-defendant.
On September 14, 1977, Oakland County filed a motion to dismiss Ackron’s complaint and for entry of a default judgment against Argonaut. On September 28, 1977, an order was entered, granting the county’s motion for a default judgment against Argonaut for failure to comply with discovery orders. The entry of default was affirmed by this Court in Ackron Contracting Co, Inc v Oakland County, 87 Mich App 294; 274 NW2d 44 (1978), lv den 406 Mich 915 (1979).
Pursuant to GCR 1963, 520.2(2), evidentiary hearings were held on May 23, July 26, and July 27, 1979, to determine the amount of damages recoverable against Argonaut for costs incurred in completing the project. Oakland County’s project engineer was the only witness called. He testified concerning the scope of the contracts and the procedures for payment of individual contractors during completion. He stated that, although Ackron had substantially completed the construction of the sewer system, it had failed to complete surface restoration and had failed to make necessary repairs on the sewer system. As a result, the county was forced to hire other contractors to complete the project.
In an attempt to establish the cost of completion, detailed accounts and summaries of amounts paid to individual contractors were presented in evidence. Oakland County contended that it was entitled to recover $516,890.01 for amounts expended in completing the project, less $123,754.25, which it had retained.
Argonaut’s trial counsel attempted to cross-examine the county’s project engineer regarding certain amounts paid to the contractors to complete the project. It was Argonaut’s theory that some of Oakland County’s expenditures were either uncalled for by the contracts or were items which Ackron had not been directed to complete before it abandoned the project. Following a discussion held oif the record, cross-examination was not permitted.
On April 2, 1980, the trial judge entered an order awarding the county damages in the amount of $313,705.44. The principal action between Ackron and Oakland County has not as yet been heard. Argonaut brings this appeal as a matter of right, challenging the April 2, 1980, order.
Argonaut’s first contention on appeal is that the court’s restrictions on the scope of the damage hearing were inconsistent with the requirements of GCR 1963, 520.2(2) and Michigan case law and that the court’s decision to preclude Argonaut from challenging Oakland County’s claim for damages on the ground that certain costs were not within the terms of the contract constituted error requiring reversal.
The procedural history of this case compels us to decide this matter on a ground not raised by the parties. Argonaut, the defaulted party, is surety for Ackron Construction Company, and the extent of its liability is, therefore, coextensive with that of Ackron. 23 Mich Civil Jurisprudence, Surety-ship, § 35, p 84. Generally, a surety may plead any defense available to its principal and if no action can be maintained by the obligee against the principal, none can be maintained against the surety. 23 Mich Civil Jurisprudence, Suretyship, § 47, p 100. Since the primary action between Ackron and Oakland County has not yet been tried, it is unclear what Ackron’s ultimate liability will be._
Oakland County’s counterclaim against counter-defendants Ackron and appellant Argonaut seeks recovery for damages caused by Ackron’s alleged breach of contract. When the case between Oakland County and Ackron is ultimately resolved, however, it may be determined that Ackron did not breach the contracts and that Ackron has a right of recovery against Oakland County, as Ackron asserts in its complaint. In such a case, Argonaut, as Ackron’s surety, should not be liable to Oakland County in any amount.
As the matter currently stands, Argonaut, as the defaulted party, stands in the anomalous position of having to admit its principal’s liability for breach of the contracts and to compensate Oakland County for the costs which the county incurred in completing them before that issue has been ultimately determined in the principal action between Oakland County and Ackron.
The present issue before this Court, as we see it, was stated in 6 Moore’s Federal Practice (2d ed),. § 55.06, p 55-81:
"Where there are several defendants a question may arise as to whether, after entry of a default against one, a default judgment can be entered immediately against the defaulting defendant or whether entry must be postponed until all the defendants are in default or the case is tried as to the defendants not in default.”
The authors of that treatise, citing the leading case of Frow v De La Vega, 82 US (15 Wall) 552, 554; 21 L Ed 60 (1872), state that the "latter alternative is the correct procedure where the liability of the defendants is joint”. Moore’s, supra, p 55-81.
The problem with the posture of the present case was stated by Justice Bradley in Frow, supra, 554:
"If the court in such a case as this can lawfully make a final decree against one defendant separately, on the merits, while the cause was proceeding undetermined against the others, then this absurdity might follow: there might be one decree of the court sustaining the charge of joint fraud committed by the defendants; and another decree disaffirming the said charge, and declaring it to be entirely unfounded, and dismissing the complainant’s bill. And such an incongruity, it seems, did actually occur in this case. Such a state of things is unseemly and absurd, as well as unauthorized by law.
"The true mode of proceeding where a bill makes a joint charge against several defendants, and one of them makes default, is simply to enter a default and a formal decree pro confesso against him, and proceed with the cause upon the answers of the other defendants. The defaulting defendant has merely lost his standing in court * * *. But if the suit should be decided against the complainant on the merits, the bill will be dismissed as to all the defendants alike — the defaulter as well as the others. If it be decided in the complainant’s favor, he will then be entitled to a final decree against all.”
The problem of default judgments in actions involving several defendants is explored further in 10 Wright & Miller, Federal Practice and Procedure: Civil, § 2690, pp 288 et seq., where the authors make the following conclusion:
"The general rule developed in the Frow case applies when the liability is joint and several and probably can be extended to situations in which several defendants have closely related defenses. When that is the case, entry of judgment also should await an adjudication of the liability of the nondefaulting defendants.” (Emphasis added.) Id., 290-291.
Following this procedure also promotes concepts of judicial economy, as stated in Baker v Old National Bank of Providence, Rhode Island, 91 F 449, 450 (CA 1, 1899):
"[A]s all the defendants are interested in the same underlying questions, there are serious objections to having a case of this kind come up by several successive appeals, on one of which different phases might be presented from those presented on another, leading to inconsistent results. The proper way is to hold the suit for one ultimate decree * *
The following appears in 47 Am Jur 2d, Judgments, § 1192, p 210:
"In an action against several defendants some of whom default, the question of damages as to the defaulting defendants may properly be tried and determined at the trial of the case of the answering defendants, and as a part thereof. In such a case, the defaulting defendants are entitled to participate in the trial on the question of damages, and no pleading on their part is necessary to enable them to do so. Another procedure sometimes followed is to proceed to trial on the issue of the liability of the remaining defendants before holding a hearing in damages as to the defaulted defendant.” (Footnotes omitted.)
As a general rule, upon the entry of a default, the well-pled factual allegations of the complaint, except those relating to the amount of damages, are taken as true. Geddes v United Financial Group, 559 F2d 557, 560 (CA 9, 1977), Grinnell v Bebb, 126 Mich 157, 159; 85 NW 467 (1901). Once the default is established, the defendant loses his standing to contest the factual allegations of the plaintiffs claim for relief. Geddes, supra.
Applying the aforementioned principles of law, we are of the opinion that the question of damages between Argonaut and Oakland County best should be determined after the rights of Ackron and the county have been litigated. This procedure, we believe, will avoid the anomalous situation which may arise whereby Argonaut is required to compensate the county for costs incurred in completing the contracts allegedly breached by its principal only to have it later determined that Ackron did not breach the contract and has a right of recovery against Oakland County.
Accordingly, in the interests of judicial economy, we remand this matter to the circuit court for an immediate trial of the principal action between Ackron and Oakland County. OCR 1963, 820. As a defaulted party, of course, Argonaut has no right to participate in these proceedings and is precluded from denying the validity of its surety agreements with Ackron. Once the issue of liability has been determined, a new, separate hearing on damages shall be held at which counsel for Argonaut shall be allowed to participate in accordance with the dictates of the Supreme Court in Grinnell, supra. Since the issue of liability will have been resolved by that time, the line of demarcation between damages and liability should be clearer than it was at the hearing held below. The April 2, 1980, order against Argonaut is hereby set aside.
Reversed and remanded. We retain po further jurisdiction.
Costs to abide the final outcome.
These figures were calculated by taking the actual quantities of the sewer system installed by Ackron (and other contractors hired to complete the project) and adding to that figure the reasonable costs of change orders and extras which the county felt obligated to pay. Less than the estimated quantities of sewer main were actually installed under each of the contracts, resulting in a downward adjustment from Ackron’s original bid prices.
GCR 1963, 520.2(2) reads in pertinent part as follows:
".2 Judgment. Judgment by default may be entered as follows:
"(2) By the Court. In all other cases the party entitled to a judgment by default shall apply to the court therefor * * *. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall accord a right of trial by jury to the parties when and as required by the constitution.”
Although the trial court failed to make a ruling on the record, the remarks of Argonaut’s counsel indicates the scope of the in-chambers discussion:
"Your Honor has indicated that he intends to interpret the default judgment of liability as a limitation on my right to inquire into anything that relates to the county’s right to have performed certain portions of the work. I wanted to state on the record that it was my intention, through the cross-examination of [the county’s project engineer], and the presentation of witnesses, Mr. Brown, Mr. Ackron, James Ackron and Mr. Harold Ackron, it was my intention to challenge the right of the county to charge for certain portions of the work represented by Exhibits 3 through 23 or 3 through 20.
"For example, it was my intention, and this is for example purposes only, to question the right of the county to charge for gravel restora tion, that being an item that it would be our position was not called for under the contract, or not an item which the contractor or the bonding company received notice to complete in the period May and June of 1974.
"With that statement of the — I’m sorry, there’s one other area that we intended to go into. We intended to challenge the accuracy of the records which have been introduced, specifically to show that a great portion of that work does not relate, in any way whatsoever, to the punch list which was prepared and forwarded to Ackron Contracting Company and the bonding company.” | [
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] |
N. J. Kaufman, P.J.
Plaintiff Geraldine Kueppers was injured on October 8, 1973, when a press she was operating severed her right hand. At the time she was an employee of Gleason-Holbrook Manufacturing Company. This appeal results from the circumstances of that injury.
The procedural history of the instant case is quite lengthy and complex. For purposes of this appeal, however, only certain portions of this his tory are of import. Numerous defendants were sued by plaintiffs. Some were dismissed on stipulation or motion for summary judgment. Prior to the time of trial, others of these defendants settled with plaintiffs in amounts varying between $30,-000 and $50,000, for a total settlement of $180,000.
On April 1, 1980, the sole defendant remaining in the case was Chrysler Corporation. A trial took place in Macomb County Circuit Court, at the conclusion of which a verdict of no cause of action was returned. Plaintiffs now appeal as of right, pursuant to GCR 1963, 806.1.
Prior to trial, plaintiffs brought a motion to strike any references to prior defendants or the fact that any settlements had been reached between them and plaintiffs. Defendant objected to plaintiffs’ motion on the ground that the defendant desired to comment on the pleadings filed by other defendants in the case and that it would severely confuse the jury in that they would not know how to apportion the alleged negligence of Chrysler without knowing that there were other defendants that had settled with the plaintiffs. The trial court determined that it was best to let the jury hear what had actually transpired. If they were not allowed to do so, it would be "misleading”.
In addition, plaintiffs made a motion to exclude any reference to subsequent repairs or modifications to the press made by Geraldine Kueppers’s employer. The trial court, after noticing that it was plaintiff’s employer who made the modifications after the accident and that liability could not be imposed upon the employer, ruled that references to subsequent modifications would not be excluded.
On appeal, plaintiffs raise four issues, the first of which we believe to be dispositive of the case. Plaintiffs’ initial allegation is that the trial court erred in allowing the jury to be informed of the existence of prior defendants and the fact that several of these defendants had settled with plaintiffs for certain specified amounts.
The trial judge ruled that evidence of prior settlements would not be violative of MRE 402 or MRE 408, neither rule, he felt, being applicable to the instant case. At issue is the following holding of the trial court:
"The Court: All right. Apparently it’s within the sound discretion of the Court as to whether the motion should be granted.
"I am going to find, gentlemen, that the jury is entitled to hear everything that’s transpired in this matter.
"In reading these cases, I do not find that the testimony should be excluded.
"The Brewer case is not on all fours. MRE 402 and 408 are not applicable as cited.
"The general rule of materiality exists in any circumstance and cannot be used specifically to prevent evidence coming into this file that pertains to one injury in the succession of one machine. I just don’t see how we can cut it. It would be misleading to the jury, and it would be attempting to establish a fact that is not truthful.
"I think the best movement is to allow the jury to hear the entire facts; take the charge of the Court and in the course of their performance, decide whether or not the remaining defendants are liable.
"The jury will understand that if an award is entered, the total award for damages, any settlement will be deducted from the total award; the remaining sum will be the net judgment to go against whoever the jury finds is liable.
"To hold otherwise, I think would be an absolute charade. I just don’t think it would be a search for the truth. It would be a fiction of some sort in view of what’s happened with some prior defendants.
"The motion in limine is denied.”
We believe that the trial court’s reasoning on this matter was not correct.
MRE 408 provides:
"Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.”
This Court has given little guidance in the interpretation of the aforementioned rule but rather has decided issues similar to the one in question under MRE 402. This rule requires that any evidence presented meet a threshold prerequisite of relevancy to issues remaining at trial. The rule provides:
"All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of the State of Michigan, these rules, or other rules adopted by the Supreme Court. Evidence which is not relevant is not admissible.”
The relevancy issue was addressed in Wilson v WA Foote Memorial Hospital, 91 Mich App 90, 96-97; 284 NW2d 126 (1979), lv held in abeyance 409 Mich 868 (1980), in a case concluded at the trial level prior to the effective date of MRE 408. The Wilson Court addressed the issue of the propriety of informing the jury of a prior settlement and decided that admission of proof of a prior settlement agreement between a defendant and the plaintiff is a matter of judicial discretion. See also Stitt v Mahaney, 403 Mich 711; 272 NW2d 526 (1978), Croda v Sarnacki, 106 Mich App 51; 307 NW2d 728 (1981).
However, in Brewer v Payless Stations, Inc, 94 Mich App 281, 284; 288 NW2d 352 (1979), lv gtd 409 Mich 871 (1980), another panel of this Court held:
"Under the new rules of evidence, evidence that is not relevant, that is, has no bearing on a material issue of fact, is inadmissible at trial. MRE 402. In the instant case, unlike that of Stitt, evidence of plaintiffs settlement with General Motors had no bearing on the issue of fact for the jury.
"In the case at bar, plaintiff has stipulated to permit the trial court to deduct the total amount of his settlement with General Motors from any verdict the jury may render against Payless. Thus, plaintiff has waived the right to have the jury consider whether only a portion of the General Motors settlement should be deducted from a possible judgment against Payless. Further, defendant in this case, Payless, does not argue as the defendant in Stitt did that this settlement purports to release it from any liability.
"As is obvious, the reasons supporting the Supreme Court’s decision in Stitt have no application here. Because plaintiff has stipulated to permit the trial court to deduct the total amount of the settlement with General Motors from any jury verdict against Payless, plaintiff will not receive a double recovery. As long as the jury can fairly determine the portion of plaintiffs damages caused by the negligence of Payless, assuming that Payless has any liability at all, there is no need for the jury to know the amount of plaintiff’s settlement with General Motors or, in fact, to even know that a settlement occurred.” (Emphasis added.)
The identical question was recently addressed by a panel of this Court in Silisky v Midland-Ross Corp, 97 Mich App 470, 480-481; 296 NW2d 576 (1980). The Silisky Court reviewed cases involving the issue before us and Judge Allen stated:
"However, the decisions [as to whether evidence of settlements may be offered on the issue of damages] can largely be reconciled. It is evident that the principal reason in favor of admitting evidence of settlements is to prevent double recovery. Wilson v WA Foote Memorial Hospital, 91 Mich App 90, 96-97; 284 NW2d 126 (1979). Where, as in the case before us, the parties have stipulated that from the damages ultimately determined by the jury there would be deducted the dollar amount of the settlement and that settlement with one party was not a release of the other parties, double recovery is precluded.
"The facts in the instant case are not distinguishable from Brewer. In both cases plaintiff agreed that the court could subtract from the jury award of damages the amount of the settlement. Accordingly, we find that the trial court’s exclusion of evidence of the settlement was proper for failure of such evidence to meet the MRE 402 threshold requirement of relevancy.” (Footnote omitted, emphasis added.)
Thus, the admission of evidence of settlements was held to be improper where the evidence did not meet the threshold requirement of relevancy. It was not demonstrated that the jury could not fairly determine the portion of plaintiffs’ damages allegedly caused by defendant without knowledge of the previous settlements.
As in Silisky and Brewer, there was no danger of double recovery in the instant case. The parties had stipulated that the settlement amount would be deducted from the amount of damages determined by the jury. Therefore, we conclude that evidence of settlement was not relevant under MRE 402.
Although there is a paucity of Michigan authority directly on point, it would seem that evidence of settlement in the instant case would also be improper under MRE 408. While evidence of an offer to compromise is admissible for purposes other than establishing liability, the other purposes enumerated by the rule were not at issue here.
In the case at bar, evidence of the settlement was purportedly offered by the defendant to prevent an excessive verdict or double recovery for the plaintiffs. If MRE 408 is given an interpretation similar to that of FRE 408, see In re General Motors Corp Engine Interchange Litigation, 594 F2d 1106, 1124, fn 20 (CA 7, 1979), it would seem that the trial court was required, at the very least, to exercise its discretion in determining the relevance and possible prejudicial impact of the evidence. See also Jackson v Shell Oil Co, 401 F2d 639, 643 (CA 6, 1968).
Although we feel an interpretation of the scope of MRE 408 is desirable, we deem, as in the Michigan cases previously decided, that this case does not demand such analysis. As in Croda v Sarnacki, supra, MRE 408 is not truly applicable to the instant case.
However, a consideration of the issue in terms of questions of relevancy alone leads us to the conclusion reached in Brewer and Silisky, supra. This is the position adopted by Judge Bronson in his dissenting opinion in Croda, supra. Judge Bronson acknowledged that, standing alone, MRE 408 was not directly applicable to the controversy, the jury having been informed of the settlement for reasons other than proving the validity or invalidity of the claim. In Croda, the amount of settlement with the other defendants was extremely small, while in the instant case the amount was relatively large; therefore the possibility for prejudice took a different form, that is the jury in Croda might have concluded that plaintiff’s claim was of dubious validity, given the low amount of the other settlement. 106 Mich App 62. In the instant case, we can only speculate that the prejudice might have lain in the fact that upon hearing that plaintiff had already received $180,000 from other defendants and knowing of Chrysler Corporation’s financial problems, the jury may have concluded that plaintiff had been sufficiently remunerated for her injury.
It is not, however, necessary to speculate on the nature of the prejudice, if any, suffered by plaintiff in the case at bar. It is sufficient to say that we adopt the rule stated in Brewer and Silisky and in the dissenting opinion in Croda and state that when plaintiff’s counsel makes known his willingness to allow the trial court to make all necessary post-verdict adjustments to a judgment rendered, "the fact of the settlement [is] immaterial and inadmissible”. Croda, supra, 63.
Under MRE 402, we believe the trial court was required to exercise its discretion to determine the relevance and possible prejudicial impact of the evidence of settlement. In Spalding v Spalding, 355 Mich 382, 384-385; 94 NW2d 810 (1959), the Supreme Court defined judicial actions which will constitute an abuse of discretion:
"The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations. In order to have an 'abuse’ in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias.”
A review of the evidence offered and the rationale suggested for the admission discloses such abuse of discretion by the trial court. Thus, under either MRE 402 or MRE 408, the trial court’s decision granting the admission of evidence of the settlements was error.
A determiantion must be made as to whether the error was harmless. Such determination may be made according to the standards set forth in Ilins v Burns, 388 Mich 504, 510-511; 201 NW2d 624 (1972):
"The question then arises as to whether or not the error was harmless under GCR 1963, 529. A finding of prejudicial error depends on the circumstances of each case (3 Honigman & Hawkins, Michigan Court Rules Annotated [2d ed], Comments, p 228); the excessiveness or unfairness of the verdict (Ford v Cheever, 105 Mich 679 [1895]; McDonald v Champion Iron & Steel Co, 140 Mich 401 [1905]); the intent of counsel in introducing such evidence (Cluett v Rosenthal, 100 Mich 193 [1894]; Nemet v Friedland, 273 Mich 692 [1935]); and whether the evidence went to the substantive issues of the case (Burns v Kieley’s Estate, 242 Mich 668 [1928]).
"Once prejudicial error is found, the cases call for reversal regardless of whether the trial judge gave an instruction in an attempt to cure the error. Potentially prejudicial error can be cured. Prejudicial error, however, implies a conclusion that the substantial rights of the party were affected. Such error calls for reversal and new trial.” (Footnote omitted; emphasis in original.)
Applying this standard, this Court finds the aforementioned error to be sufficiently prejudicial to plaintiffs’ substantial rights so as to warrant reversal. Defendant’s purpose in admitting the evidence of settlement could only have been to prejudice the jurors. The trial court’s acquiescence in its admission was an abuse of discretion which the court’s limiting instruction could not cure. For these reasons, we find that the case must be reversed and remanded for a new trial in which the evidence of settlement may not be admitted.
Although our resolution of this issue is dispositive of the instant case, we address plaintiffs’ remaining issues in the event this action is retried.
Plaintiffs’ first remaining allegation of error is that the trial court improperly refused to admit into evidence portions of the deposition of Ted Wahl, who had been an employee of Chrysler Corporation at the time of the accident. The court’s rationale for its refusal was that certain portions of the deposition testimony were irrelevant and confusing.
The admission of depositions is governed by GCR 1963, 302.4, which provides in pertinent part:
"At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any 1 of the following provisions: ,
"(2) The deposition of a party or anyone who at the time of the transaction or occurrence out of which the action arose or at the time of taking the deposition was an officer, director, employee, or agent of any party may be used by an adverse party for any purpose.” (Emphasis added.)
The key language in the rule is that the deposition must be admissible under the rules of evidence. The trial court therefore has discretion to exclude the deposition or portions thereof if it determines that the testimony contained therein is irrelevant. MRE 402. See, for example, Moldovan v Allis-Chalmers Manufacturing Co, 83 Mich App 373, 382-383; 268 NW2d 656 (1978), cert den 444 US 1034 (1980). Although there is authority to the contrary, see Mendyk v Michigan Employment Security Comm, 94 Mich App 425, 436; 288 NW2d 643 (1979), a majority of panels of this Court which have addressed this issue in previous cases have agreed that the relevance of evidence is to be determined by the trial court, whose exercise of discretion is to be affirmed unless an abuse of discretion is manifest. Kujawski v Cohen, 56 Mich App 533, 540; 224 NW2d 908 (1974), Birous v Thompson-Brown Co, 67 Mich App 502, 513; 241 NW2d 265 (1976), lv den 397 Mich 808 (1976), Schalkofski v Lawrence, 37 Mich App 686; 195 NW2d 292 (1972).
Here, the trial judge excluded portions of the deposition because he believed that the testimony contained therein would confuse and mislead the jury. Generally, even relevant evidence can be excluded if its probative value is substantially outweighed by the danger of confusion of the issues or of misleading the jury. MRE 403. Grubaugh v City of St Johns, 82 Mich App 282; 266 NW2d 791 (1978), lv den 404 Mich 804 (1978).
Wahl’s testimony, when considered in its entirety, is not as conclusive as plaintiffs would have this Court believe. Wahl did not testify as to the specific modification or lack of modification done to the press in question. Indeed, his testimony could not be generalized to show that certain modifica tions were standardized procedures. Certainly then, this testimony was not relevant to show that Chrysler put a dangerous instrumentality into the stream of commerce. It was therefore properly excluded by the trial judge, who expressly found its probative value to be substantially outweighed by the potential for confusion that admission of the deposition would cause.
Additionally, the fact remains that Wahl was available to testify. On April 4, 1980, after the trial court ruled that only certain portions of Wahl’s deposition would be admitted into evidence, Wahl was subpoenaed by plaintiffs. However, he was never called upon to testify. It seems that had plaintiffs wished to fully cross-examine Wahl, they certainly could have called him as a witness at trial. Plaintiffs’ claim of prejudice on this issue is, therefore, without merit. See Duckett v North Detroit General Hospital, 84 Mich App 426, 433; 269 NW2d 626 (1978).
Plaintiff’s next assignment of error concerns the trial court’s allowance of evidence of subsequent remedial measures adopted by plaintiff’s employer, Gleason-Holbrook.
MRE 407 reads as follows:
"When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility or precautionary measures, if controverted, or impeachment.”
MRE 407 is consistent with prior Michigan law. As a general rule, evidence of subsequent repairs has been held inadmissible to show negligence. Grawey v Board of Road Comm’rs, 48 Mich App 742, 749; 211 NW2d 68 (1973), lv den 390 Mich 814 (1973). However, in Denolf v Frank L Jursik Co, 395 Mich 661; 238 NW2d 1 (1976), the Supreme Court held that such a policy is not present "where imposition of liability is not sought against the person taking the remedial action”. Denolf, supra, 667. The admission of such evidence was permitted in Denolf to prove negligence, but was limited to situations where: (1) evidence of a subsequent remedial action is otherwise relevant; (2) admission of the evidence would not offend policy considerations in favor of encouraging repairs; and (3) the remedial action is not undertaken at the direction of a party plaintiff. See, for example, McLaughlin v Great Lakes Contracting Co of Detroit, 82 Mich App 729; 267 NW2d 489 (1978).
Plaintiffs argue that the evidence was not relevant and therefore inadmissible. MRE 402. In addition, it is argued that even if the evidence was relevant, it is nevertheless inadmissible because its probative value is substantially outweighed by its prejudicial content. MRE 403. These arguments are without merit. The evidence was relevant. As stated in Denolf, supra:
"Such evidence is said to be irrelevant because it is capable of explanations equally as plausible as an admission by conduct of pre-accident neglect of duty. If relevancy were the only criteria, Professors Wigmore and McCormick both point out that such evidence would meet the usual standards of relevancy.” Id., 667. (Footnotes omitted.)
The Court also noted is passing:
"As will be seen infra, we hold today that post-occur rence modifications should not only be relevant, but also the policy considerations regarding encouragement of repairs must be inapplicable before such evidence becomes admissible.” Id., 667, fn 4.
Finally, plaintiffs argue that the trial court erred in refusing to give a jury instruction requested by plaintiffs. Plaintiffs contend that the court erred in refusing to inform the jury of plaintiffs’ implied warranty cause of action although plaintiffs requested that SJI 25.21 be given. The requested instruction reads as follows:
"When I use the words implied warranty, I mean a duty imposed by law which requires that the (manufacturer’s) (seller’s) product be reasonably fit for the purpose(s) and use(s) intended or reasonably foreseeable by the (manufacturer) (seller).”
Plaintiff argues that GCR 1963, 516.6(2) mandates that said instruction be given.
GCR 1963, 516.6(2) provides:
"Pertinent portions of Michigan Standard Jury Instructions (SJI) published under authority of this subrule shall be given in each civil case in which jury instructions are given if (a) they are applicable and (b) they accurately state the applicable law.”
In Javis v Ypsilanti Board of Education, 393 Mich 689, 702-703; 227 NW2d 543 (1975), the Supreme Court discussed the scope of GCR 1963, 516.6(2) and stated:
"We accordingly adopt a strict rule that we believe will provide economy in administration and fairness to the parties: Where there is an omission of, or a deviation from an applicable and accurate SJI, prejudicial error will be presumed; provided that the erroneously omitted SJI was properly requested at trial; and, pro vided that in those cases where error is charged as a result of a deviation from a SJI, said deviation was brought to the attention of the trial court prior to the commencement of jury deliberations.”
The aforementioned principles must be applied to the case at bar.
Plaintiffs’ attorney requested that SJI 25.21 be given. The trial court refused to do so. In regard to the contested instruction the following colloquy occurred:
"The Court: The record should reflect that the Court has counsel here in chambers and we have been discussing the charge to the jury and some requests have been made to the Court that the Court declines to give at this point, and we are going to make a record concerning that so counsel will be protected.
"Mr. Goldsmith: Yes, your Honor. In this regard it is the plaintiffs position that since the facts, as far as plaintiff is concerned, will establish the fact that a defective product left the seller, and that defective product caused an injury, that pursuant to applicable Michigan law, that the instruction should be given pertaining to implied warranty and specifically request is made 25.21 of the Michigan Standard Jury Instructions 25.21, 25.22, 25.23.
"The Court indicated it will not give that instruction and plaintiff is limited in his position, that of negligence, so I just want to make that record.
"The Court: The record should reflect that the Court declines to give it, feeling that the situation is governed by MCLA 440.2316, 440.2317.
"Mr. Goldsmith: That would be the only objection, your Honor.”
It is this Court’s belief that the trial court did not err in its decision to deny the requested instruction.
Generally, parties to a transaction may negate an implied warranty with proper language showing such intention. See Richardson v Messina, 361 Mich 364; 105 NW2d 153 (1960). In Parsonson v Construction Equipment Co, 18 Mich App 87; 170 NW2d 479 (1969), reliance on an implied warranty theory of recovery was precluded where the goods were purchased "as is”. See MCL 440.2316; MSA 19.2316 for exclusion or modification of warranties in commercial transactions. Curby v Mastenbrook, 288 Mich 676; 286 NW 123 (1939). Believing the instant case to be similar to Parsonson, supra, it was not error for the trial court to rule that plaintiffs could not maintain their implied warranty claim.
In support of this conclusion is Blanchard v Monical Machinery Co, 84 Mich App 279; 269 NW2d 564 (1978), a case misconstrued by plaintiffs. In Blanchard, the plaintiff was injured in 1974 when he accidentally tripped on an unguarded foot treadle, causing an air-operated clamp to close on his thumb. The clamp, which had been manufactured prior to 1965, was allegedly sold to plaintiffs employer on an "as is” basis. Plaintiff brought suit against several defendants, including defendant Monical, claiming negligence and breach of warranty. Monical moved for and was granted a directed verdict on the basis that it owed no duty to plaintiff because it sold the machine to a knowledgeable, sophisticated and experienced furniture dealer which had its own safety department. This Court, in reversing the trial court, stated:
"Plaintiff claims defendant seller is liable for failure to install a safety guard on or around the foot treadle and for failure to warn users of a possible danger in accidentally tripping the foot treadle. The trial court concluded that, as a matter of law, defendant did not owe plaintiff any duty. He said to require a seller, who sells an 'ancient machine’, 'as is’, to a knowledgeable furniture company that had its own safety engineer, to install a safety guard around the foot treadle and to warn users of a possible danger in accidentally tripping the foot treadle, would be an exercise of the absurd. It may well be that a jury will so conclude, but under the law, it is for the jury, not the judge, to so find.
"Contrary to the trial judge’s conclusion, defendant seller owed a general duty to plaintiff user to exercise the reasonable care required of a reasonably prudent seller under the existing circumstances. Certainly, the age of the equipment and the condition it was in when it left defendant seller’s possession would be relevant factors in the jury’s determination of whether the duty owed plaintiff was breached. But, it is not the rule that, as a matter of law, used machinery dealers owe no duty to persons injured by their products.
"Nor can we find any reason to relieve defendant seller of his duty of care merely because he is dealing in used rather than new goods. There is no indication in the Uniform Commercial Code of an intention to completely relieve a seller of used goods of his duty of care to persons affected by the use of those goods. Nor have we been able to find authority for so doing.
"Further, the designation of the sale in the within case as being on an 'as is’ basis, does not relieve defendant seller of his duty of care. While disclaimers are generally not favored, the Uniform Commercial Code, recognizing that they have some utility in promoting free commerce, provides for such disclaimers in limited circumstances. However, whatever the impact of the UCC warranties and disclaimer attempted by defendant seller in the within case, it does not result in relieving defendant seller of his duty of care to plaintiff under the common law. Common-law tort liability in Michigan is distinct from the warranty liabilities imposed by the Uniform Commercial Code, and may not be abrogated by the disclaimers permitted under the code.” 84 Mich App 282-284. (Emphasis added; footnotes omitted.)
Blanchard does not require that an implied warranty instruction per se be given, only that the jury be instructed as to the duty of a used equipment dealer "to exercise the reasonable care required of a reasonable, prudent seller under the existing circumstances”. Here, the instructions of the trial court adequately informed the jury of such a duty.
The instruction, as given, stated:
"Now, when I use the word 'negligence’ with respect to the defendant’s conduct, I mean the failure to do something which a reasonably careful seller would do or the doing of something which a reasonably careful seller would not do under the circumstances which you find existed in this case.
"It is your duty to decide what a reasonably careful seller would do or not do under such circumstances.
"I am going to repeat that because it is the first time you ever heard it and listen * *
The trial court therefore correctly determined that SJI 25.21 was inapplicable and instructed the jury accordingly. In Socha v Passino, 405 Mich 458, 467; 275 NW2d 243 (1979), the Supreme Court held:
"We do not believe Javis totally constrains the discretion of trial judges. The judge’s discretion is still required in determining whether or not the instruction is applicable and whether or not the instruction accurately states the law.” (Footnote omitted.)
In the case at bar, the trial court properly determined that SJI 25.21 was inapplicable and did not accurately state the law. The decision not to give the requested instruction was, accordingly, correct.
It is, thus, our conclusion that the trial court committed reversible error by admitting into evidence testimony that pertained to prior settlements obtained by plaintiffs with certain previous defendants. Plaintiffs’ other allegations of error, however, are incorrect.
Reversed and remanded for new trial in accordance with this opinion. Costs to plaintiffs. | [
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C. L. Bosman, J.
Defendant appeals by right from a judgment granted in favor of plaintiff on his complaint. The judgment was based on the trial court’s opinion that a policy of insurance issued to defendant excluding coverage for bodily injury arising out of "business pursuits of any insured except (i) activities therein which are ordinarily incident to non-business pursuits and (ii) farming * * *” did not exclude coverage for plaintiffs injury. Based on said exclusion, the Pioneer State Mutual Insurance Company which insured defendant under a comprehensive farm owners liability insurance policy denied coverage.
The parties stipulated to bring the issue of Pioneer’s liability before the trial court on a motion for declaratory judgment. The parties agreed that if the trial court determined that coverage was not precluded, the defendant would owe plaintiff $11,022.00; but, that, if the trial court found that coverage was precluded, defendant would owe plaintiff nothing.
Defendant purchased from his neighbor a barn which he razed, moved to his property and advertised for sale. Several people responded to the advertisement but only plaintiff and another purchased the barn wood. Plaintiff was injured when he and defenant were loading the wood on plaintiffs pickup truck.
The trial court concluded that defendant was not engaged in a business pursuit when plaintiff was injured and, therefore, the exclusion to the policy of insurance was not applicable. The trial court concluded that since it found that Pioneer was liable to plaintiff for his injuries, it was not necessary to address plaintiff’s alternative claim that Pioneer was liable because the razing of the barn was incident to ordinary farming operations.
In Roese Contracting Corp, Inc v Zgliczynski, 97 Mich App 199, 202; 293 NW2d 763 (1980), the Court set forth the applicable standard of review:
"Our review of the declaratory judgment is de novo, and the findings below must be sustained unless we conclude that we would have ruled differently, sitting in the trial court’s stead. Salvador v Connor, 87 Mich App 664, 675-676; 276 NW2d 458 (1978), lv den 406 Mich 966 (1979).”
Jurisdictions differ in their interpretations of what constitutes a business pursuit for purposes of determining whether a business pursuit exclusion contained in a policy of insurance precludes coverage. In certain jurisdictions, any activity that is profit motivated constitutes a business pursuit for such purposes. However, as the trial court in the instant case recognized, Michigan employs a two-prong test in which, in addition to the profit motive, there must be a degree of continuity to the activity involved. See State Mutual Cyclone Ins Co v Abbott, 52 Mich App 103; 216 NW2d 606 (1974).
In this case, the record clearly supports the trial court’s conclusion that defendant’s activity was profit motivated. The record also supports the trial court’s finding that defendant’s involvement in the activity was not continuous. The trial court noted in its opinion that there was no evidence presented that defendant had ever engaged in the business of razing old barns for profit prior to the occasion at issue or that he had done so since. The defendant was a full-time employee at Lansing Motor Wheel Corporation and additionally conducted a sizeable farming operation. That is indicative of the singular nature of the activity in question. The fact that defendant’s venture required a great amount of effort and a great amount of time is not determinative. Since defendant’s activity was not a "stated occupation” or a "customary engagement”, it was not continuous. State Mutual Cyclone Ins Co v Abbott, supra.
We conclude that the trial court correctly determined that defendant was not engaged in a business pursuit when plaintiff was injured and, therefore, the business pursuit exclusion to the policy of insurance does not act to preclude coverage. Based on the above, we also find it unnecessary to address plaintiffs alternative theory that coverage was not precluded because defendant’s activity was incidental to ordinary farming operations.
Affirmed. | [
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Per Curiam.
Plaintiffs brought an action in equity seeking to set aside a deed or to impose a constructive trust on farm property which was the subject of the deed. The trial judge found no cause of action and plaintiffs appeal as a matter of right.
In 1962, plaintiff Dr. Havens purchased the Scholz family farm from the estate of her twin brother, Norman Scholz. She gave a deed of trust to her other brother Earl Scholz in 1964, naming her daughter Linda Karen Adams as the principal beneficiary. In 1969, she filed suit against Earl and Inez Scholz and, in settlement of that suit, the property was conveyed to Dr. Havens and her daughter, now deceased. On August 13, 1969, Dr. Havens executed a quit-claim deed to her daughter of her remaining interest in the farm. It is this deed which Dr. Havens wishes to set aside.
The trial court found that plaintiffs failed to meet the burden of proving an invalid conveyance. Plaintiffs claim that there was never a delivery or an intent to presently and unconditionally convey an interest in the property to the daughter. The deed was recorded but defendants presented no other evidence to prove delivery. The recording of a deed raises a presumption of delivery. Hooker v Tucker, 335 Mich 429, 434; 56 NW2d 246 (1953). The only effect of this presumption is to cast upon the opposite party the burden of moving forward with the evidence. Hooker v Tucker, supra. The burden of proving delivery by a preponderance of the evidence remains with the party relying on the deed. Camp v Guaranty Trust Co, 262 Mich 223, 226; 247 NW 162 (1933). Acknowledging that the deed was recorded, plaintiffs presented substantial evidence showing no delivery and no intent to presently and unconditionally convey an interest in the property. The deed, after recording, was returned to Dr. Havens. She continued to manage the farm and pay all expenses for it. When asked about renting the farm, the daughter told a witness to ask her mother. Plaintiffs presented sufficient evidence to dispel the presumption. We find that the trial court erred when it stated that plaintiffs had the burden of proof on all issues. The defendants had the burden of proving delivery and requisite intent.
In Haasjes v Woldring, 10 Mich App 100; 158 NW2d 777 (1968), lv den 381 Mich 756 (1968), two grandparents executed a deed to property to two grandchildren. The grandparents continued to live on the property, pay taxes on it and subsequent to the execution of the deed they made statements which this Court found inconsistent with a prior transfer of property. These circumstances combined with the fact that the deed was not placed beyond the grantors’ control led the Haasjes Court to conclude that a valid transfer of title had not been effected. The Haasjes Court, citing Wandel v Wandel, 336 Mich 126; 57 NW2d 468 (1953), and Resh v Fox, 365 Mich 288; 112 NW2d 486 (1961), held that in considering whether there was a present intent to pass title, courts may look to the subsequent acts of the grantor.
This Court reviews de novo the determinations of a trial court sitting in an equity case. Chapman v Chapman, 31 Mich App 576, 579; 188 NW2d 21 (1971). Having reviewed the evidence presented by the defendants to prove delivery, we find that the defendants failed to meet their burden of proof. Under the circumstances, the recording itself and the language of the deed were not persuasive proof of delivery or intent. Defendants presented no evidence of possession of the deed by anyone but the grantor and presented no evidence showing knowledge of the deed by the grantee. No evidence was presented showing that the daughter was ever aware that she owned the property. The showing made by defendants was inadequate to carry their burden of proof. The deed must be set aside.
Plaintiffs alleged none of the grounds which have traditionally been recognized as justifying the imposition of a constructive trust. See Chapman v Chapman, supra. A constructive trust is imposed only when it would be inequitable to do otherwise. Arndt v Vos, 83 Mich App 484; 268 NW2d 693 (1978). Although plaintiffs claim relief for a mutual mistake, plaintiffs have presented no facts suggesting a mistake on the part of the grantee. Creation of a constructive trust is not warranted by the facts as found by the trial court. There has been no claim that those findings are erroneous.
We remand to the trial court to enter an order setting aside the August 13, 1969, deed from Norma Anderson Havens to Linda Karen Ander son Adams purporting to convey the interest of Dr. Havens in the farm. The decision of the trial court finding no justification for imposing a trust upon the property is affirmed.
Affirmed in part, reversed in part, and remanded. | [
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Per Curiam.
Defendants, Local Union 318, Amalgamated Clothing & Textile Union, AFL-CIO and Frances Wetmore, appeal the trial court’s order reversing an arbitrator’s award reinstating Wetmore’s employment with plaintiff, The Felters Company.
In April, 1973, Wetmore was hired by Felters. On March 8, 1978, she fractured her finger while working. Because the fracture did not heal, she was given six weeks of leave commencing July 7, 1979, during which she had the tip of her finger amputated. When Wetmore did not return to work on August 25, 1979, she was discharged by Felters.
Wetmore protested her discharge by filing a grievance which alleged that she was unable to return because she was recovering from surgery. The grievance proceeded to arbitration before arbitrator Marvin J. Feldman, who found that Wet-more had been improperly discharged. Felters commenced an action in Jackson County Circuit Court alleging that the arbitrator had exceeded his authority. The circuit court agreed with Felters and remanded the cause to the arbitrator for a decision consistent with the collective bargaining agreement. On remand, Feldman decided to overrule the circuit court by finding that:
"A court sitting in Jackson, Michigan, while it may believe it has general jurisdiction over the interpretation of contracts, does in fact not have general jurisdiction, absent fraud, because the parties in fact bargained for arbitration and not for a judicial system to determine the rights and merits of the contractual relationship by and between the parties.”
Arbitrator Feldman then affirmed the award as initially rendered. Felters Company went back to the circuit court and moved to have the arbitration award vacated. Felters also requested that the circuit court issue an order of superintending control over the arbitration proceedings. The circuit court vacated the arbitration award and ordered that Wetmore not be reinstated. No decision on Felters’ request for an order of superintending control was entered. The defendants appeal this decision.
When reviewing an arbitrator’s award, this Court has adopted the standard of review proclaimed by the United States Supreme Court in the Steelworkers trilogy. In Ferndale Education Ass’n v School Dist for City of Ferndale #1, 67 Mich App 637, 642-643; 242 NW2d 478 (1976), this Court stated:_
"Questions concerning the scope of judicial review of arbitrability and the awards made by arbitrators in labor disputes have been almost a plague on both state and federal courts for years, but the eminently proper attitude that we have taken is one of 'hands off. The party that ends up holding the short end of an arbitrator’s award may try desperately to fit the facts within the narrow doorway to the courts, but the judicial policy is clear. In the Steelworkers trilogy, the United States Supreme Court held that the merits of either the grievance or the arbitration award are irrelevant when a federal court is asked to enforce an arbitration agreement or award thereunder. Judicial review is limited to whether the award 'draws its essence’ from the contract, whether the award was within the authority conferred upon the arbitrator by the collective bargaining agreement. Once substantive arbitrability is determined (as it was in the court below) judicial review effectively ceases. The fact that an arbitrator’s interpretation of a contract is wrong is irrelevant.” (Emphasis changed.)
Under this standard of review, the courts’ power of review is very limited.
In this case, Felters discharged Wetmore because she failed to comply with § 7H(4) of the collective bargaining agreement. That section states:
"H. Seniority rights shall be terminated when an employee
"(4) Is absent for three (3) working days without notifying the Company of proper reason for absence; or * * * 99
Wetmore filed a grievance claiming that the discharge was improper. When the parties could not settle the grievance, they resorted to arbitration as required by § 12B of the collective bargaining agreement.
In his arbitration award, arbitrator Feldman recognized that the word "shall” was mandatory in nature. He also recognized that Wetmore failed to give notice to Felters within the required time. However, he ruled that § 7H(4) was not meant to apply to cases where the work-injured employee failed to give notice, but the company knew that the employee had been seriously injured. Furthermore, Feldman found that Felters knew Wetmore would not be returning on August 25, 1978. He therefore ordered her reinstatement.
The circuit court found that § 7H(4) was mandatory and that Feldman lacked the power to reinstate Wetmore. Although the circuit court’s interpretation of the contract might be correct, it was error for it to vacate the arbitration award. Arbitrator Feldman interpreted the clause as applying to malingering employees and those whose attendance at work was irregular or unreliable and not to employees like Wetmore who had known job-related injuries which caused their absences. While the arbitrator’s interpretation of the contract might be erroneous, it was his interpretation that the parties bargained for and the courts may not reverse his award. Therefore, the circuit court erred when it vacated the arbitrator’s award.
Defendants also argue that the circuit court erred when it issued an order of superintending control over the arbitration proceedings. We do not have to review the propriety of an order of superintending control over an arbitration proceeding since the circuit court did not issue such an order. This Court will not review issues which were not decided by the trial court. Brill v Cherwin, 346 Mich 507, 514; 78 NW2d 122 (1956).
The circuit court’s order vacating the arbitration award is reversed and the arbitration award is reinstated.
United Steelworkers of America v American Manufacturing Co, 363 US 564; 80 S Ct 1343; 4 L Ed 2d 1403 (1960), United Steelworkers of America v Warrior & Gulf Navigation Co, 363 US 574; 80 S Ct 1347; 4 L Ed 2d 1409 (1960), United Steelworkers of America v Enterprise Wheel & Car Corp, 363 US 593; 80 S Ct 1358; 4 L Ed 2d 1424 (1960). | [
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Cynar, J.
Plaintiff, clerk of Exeter Township in Monroe County, appeals by right from an order of the Monroe County Circuit Court which denied to her relief by way of mandamus for reimbursement of or indemnification for attorney fees for legal representation concerned with the validity of certain nominating petitions and for her defense of a mandamus action brought by the candidates whose names were not placed on the ballot.
This appeal is submitted for our determination on a stipulation of facts. Plaintiff, while performing her duties as township clerk under the Michigan Election Law, rejected three nominating petitions for township office in conjunction with the August 5, 1980, primary election. The plaintiff ruled the petitions were invalid and declined to certify them. The petitions determined to be insufficient were filed on June 3, 1980, the last day for filing nominating petitions, three days prior to the June 6, 1980, deadline to certify the sufficiency of nominating petitions. The township attorney, upon request of the plaintiff concerning the validity of the petitions, declined to counsel and advise her without prior approval from the entire township board.
Thereafter, on June 5, 1980, plaintiff sought the legal advice of private counsel, who also is counsel for plaintiff in this action, with respect to the sufficiency of the petitions. Following consultation with private counsel, the petitions were declared legally insufficient on June 6, 1980.
Thereafter on June 16, 1980, the rejected petitioners filed a petition for writ of mandamus in the Monroe County Circuit Court (80-8125-PZ) against plaintiff in her official capacity as township clerk. On June 17, 1980, the township board met and refused to authorize payment, upon the clerk’s request, for legal fees of private counsel incurred with respect to advising her on the sufficiency of the rejected nomination petitions. Further, the township board also denied plaintiffs request for legal representation in the then-pending mandamus action in circuit court.
On July 15, 1980, after the filing of supplemental proceedings in the circuit court mandamus action, the township board again denied plaintiffs request for legal representation. On July 17, 1980, the circuit court issued its writ of mandamus against plaintiff, ordering plaintiff to certify the three nominating petitions which the plaintiff had determined to be legally insufficient. Thereafter, plaintiff filed an emergency appeal in the Court of Appeals on July 31, 1980.
In the case of Koslosky v Exeter Twp Clerk, Court of Appeals Docket No. 52730, order of August 1, 1980, lv den 409 Mich 895 (1980), this Court determined that it was proper for a township clerk to refuse certification of a township nominee’s name to the county clerk when the nominating petition presented is dated before some of the signers. The Court of Appeals ruled that the certificate was invalid on its face as to those signatures. This Court went on to state that, after the statutory date for filing, the defect could not be cured with extrinsic evidence of good faith.
On July 17, 1980, plaintiff filed her complaint in the form of a petition for a writ of mandamus with a signed order to show cause against the defendants, members of the Exeter Township Board, under Monroe County Circuit File No. 80-8208-PZ. She sought an order for the reimbursement to or indemnification of her for her attorney fees in: a) her decision to not certify the nominating petitions, b) her defense in Monroe County Circuit Court file No. 80-8125-PZ, c) her appeal in Docket No. 52730, d) her defense of the Supreme Court appeal in Docket No. 65577, and e) her action in lower court file no. 80-8208-PZ.
On September 30, 1980, after issuing its oral decision against plaintiff on September 17, 1980, the trial court in file No. 80-8208-PZ signed an order denying plaintiff’s request for an order requiring defendants to reimburse or indemnify her for her attorney fees. The basis of the circuit court decision was that the township board acted within its authority in denying reimbursement.
The Michigan Election Law provides, in MCL 168.347; MSA 6.1347, that all duties relating to nominating petitions, to the conduct of primary elections, or to the conduct of general elections which ordinarily devolve upon the county clerk under the Michigan Election Law, MCL 168.1 et seq.; MSA 6.1001 et seq., shall be performed by the township clerk for township elections. The mandate given a county clerk in MCL 168.552; MSA 6.1552, then, transfers to the township clerk. In that statute, MCL 168.552; MSA 6.1552, the state Legislature directed the function of the township clerk with regard to nominating petitions for township offices, as follows:
"* * * [The township clerk] on his own initiative, on receipt of the nominating petitions, shall have the right to examine same and if after examination he is in doubt as to the validity of the registration or genuineness of the signature of the circulator or persons signing or purporting to sign the petitions, the [township clerk] shall commence an investigation * * * to determine whether the signatures appearing on the petition are valid and genuine * * *. Upon the completion of the investigation or examination, the [township clerk] shall forthwith make an official declaration of the sufficiency or insufficiency of any nominating petitions * * * of any nominating petitions which he has examined or investigated on his own initiative.”
The Michigan Election Law provides for no other jurisdiction over the acceptance of township office nominating petitions. The township clerk is mandated by the Michigan Election Law to make an official declaration of the sufficiency or insufficiency of any nominating petitions which he has examined or investigated on his own initiative. MCL 168.552; MSA 6.1552.
The following statutes, MCL 41.2; MSA 5.2, MCL 41.661; MSA 5.47 and MCL 691.1408; MSA 3.996(108), are discretionary in nature and permit, rather than mandate, a township board to either hire a township attorney to represent the township entity as a whole or to pay for, engage, or furnish the services of an attorney to advise an officer charged criminally or sued in a civil action alleging negligence resulting in personal or property damage. There are no statutory guidelines demonstrating any legislative intent to answer the question of legal fee indemnification or reimbursement when a township clerk properly exercised a statutorily mandated function under the state election law.
While there are no Michigan cases directly on point, there are some cases which are helpful in considering the issue before us. The Michigan Supreme Court in the case of Messmore v Kracht, 172 Mich 120, 122; 137 NW 549 (1912), stated:
" 'It is within the discretionary power of a municipality to indemnify one of its officers against liability incurred by reason of any act done by him while in the bona fide discharge of his official duties, and the municipality has the right to employ counsel to defend the officer or to appropriate funds for the necessary expen ses incurred by him in such defense, or pay a judgment rendered against him.’ ”
Accord: OAG, 1975-1976, No 4947, pp 349-350 (March 23, 1976), 67 CJS, Officers, § 254, p 786, see Clark v West Bloomfield Twp, 154 Mich 249; 117 NW 638 (1908). Cf. Sonnenberg v Farmington Twp, 39 Mich App 446, 449; 197 NW2d 853 (1972).
Accordingly, a municipality, such as a township, in general possesses the discretion to determine whether (1) counsel for the township shall represent a township official sued in his or her capacity, (2) to approve retention of private counsel paid for by the township, (3) to indemnify the official for expenses incurred in defending the action, including attorneys fees, or (4) the township board may decline to provide legal representation or indemnification for such official. The exercise of discretion by a municipality is generally reviewable by the courts for abuse of discretion. See Law Dep’t Employees Union v City of Flint, 64 Mich App 359; 235 NW2d 783 (1975). Cf. Wendel v Swanberg, 384 Mich 468, 475-476; 185 NW2d 348 (1971).
The duties performed by the plaintiff pursuant to the Michigan Election Law, were performed when time was of the essence. It may be noted that under the facts here present there was pressing necessity under the Michigan Election Law for the plaintiff to perform her statutory obligations in certifying the sufficiency of the petitions within three days of their receipt by her. Moreover, the township attorney declined to advise plaintiff without express approval of the township board, and, thereafter, the township board declined to provide legal representation to plaintiff in defense of her official actions.
Where it is factually demonstrated that pressing necessity or emergency conditions warrant a mu nicipal official in employing legal counsel in a matter of official, public concern and legal services are provided without consent of the governing body, the courts may hold a municipal corporation liable for such legal services. In Smedley v Grand Haven, 125 Mich 424; 84 NW 626 (1900), the Court held that it was a factual question for the jury whether the mayor of the City of Grand Haven was justified by emergency conditions in retaining private counsel without approval of the city council. In Smedley, supra, the mayor was represented by plaintiff attorney in certain actions filed against the city and city clerk. Further, the city attorney and half the membership of the city council had assumed legal positions antagonistic to the mayor.
In the case at hand, the plaintiff was statutorily required to determine, within three days, the sufficiency of the nominating petitions filed with her on June 3, 1980. Plaintiff’s request for legal advice from the township attorney concerning the sufficiency of the petitions was rebuffed. Faced with the statutory deadline for certification of the nominating petitions, it was reasonable for plaintiff, under the pressing necessity of such deadline, to request advice of outside counsel where the township attorney refused to assist her in the performance of official duties.
Further, the township board rejected plaintiff’s request for legal representation or indemnification for the legal expenses incurred with respect to the precedent mandamus action filed in the circuit court on June 16, 1980. On July 17, 1980, the circuit court in the precedent action ordered plaintiff to certify the previously rejected petitions and place them on the August 5, 1980, primary election ballot. Following plaintiff’s emergency appeal to this Court, the circuit court was reversed and plaintiffs official action in rejecting the nominating petitions was sustained.
The Michigan Supreme Court in Smedley v Grand Haven, supra, discussed at length and with approval opinions from the highest courts of New Jersey and Kentucky which had held that a municipal corporation must reimburse a public official for litigation expenses of private counsel incurred in the faithful performance of official duties.
In Barnert v Mayor of Paterson, 48 NJL 395; 6 A 15 (1886), the New Jersey Supreme Court held that where an officer is required by law to perform a public duty involving the disbursement of money out of pocket he must be reimbursed. In that case, the mayor of the City of Paterson brought suit to recover monies expended by him in employing legal counsel in successfully defending a mandamus action brought by the city against him. No provision in the city charter authorized the mayor to employ counsel at the city’s expense.
The second case cited with approval by the Michigan Supreme Court in Smedley v Grand Haven, supra, was City of Louisville v Murphey, 86 Ky 53; 5 SW 194 (1887). An action had been brought by the mayor of the City of Louisville to restrain the collection of a tax which was claimed to be illegal. The city council and the city attorney declined to seek judicial determination of the illegality of the tax. The mayor retained private counsel, and the Kentucky Court of Appeals sustained the mayor’s claim for reimbursement of his legal expenses. The Court held that the mayor had the right to retain counsel under the circumstances and that the city was liable for the expenses of counsel and attorney fees, stating:
"While, as a general rule, the mayor of a city has no authority, by virtue of his office, to employ counsel, the power being conferred by the charter or by the Legislature of the city, cases of emergency may arise when the power must necessarily exist. It is made the duty of the mayor to see that the law and ordinances of the city are faithfully executed, and that the official duties of the city officials are faithfully performed.” (Emphasis supplied.) Id., 65.
In the instant case, where plaintiff retained private counsel to advise her and represent her in her official capacity in performing statutory obligations under the Michigan Election Law, there existed an immediate need for legal advice. Yet, the township attorney declined to advise plaintiff without approval of the full board. Thereafter, the township board refused the initial, and repeated, request of the plaintiff to authorize retention of private counsel to represent her in the mandamus action brought against her and in plaintiff’s appeal to this Court.
In this case, the facts support the existence of pressing necessity or an emergency situation justifying petitioner in retaining private counsel. While a municipal corporation clearly has the discretion to determine whether an official may be indemnified for legal expenses incurred' in the faithful discharge of his or her duties, it may constitute an abuse of discretion, as in this case, to refuse to provide legal representation or to indemnify the official for legal expenses incurred where pressing necessity or emergency conditions require legal representation.
Accordingly, we hold that under the decision in Smedley v Grand Haven, supra, and the stipulated facts in this matter the plaintiff was justified by pressing necessity and emergency conditions in retaining private counsel where the township at torney and township board refused to provide legal representation to or indemnification of plaintiff for the defense of her official action under the Michigan Election Law. Further, the township board abused its discretion under the circumstances in refusing to provide legal counsel for or indemnification for legal expenses incurred by plaintiff in defending actions against her in her official capacity. We hold the township is liable for the reasonable legal expenses incurred by plaintiff in performance of the statutory duties imposed upon her under the Michigan Election Law in this matter. This matter is remanded to the trial court for purposes of a hearing to determine the costs and attorney fees to be awarded in accordance with this opinion.
Reversed with costs and attorney fees to plaintiff.
MCL 168.347; MSA 6.1347, pertinently provides:
"Except as herein otherwise provided, the laws governing nomination petitions * * * shall, as near as may be, apply to primaries held under the provisions of this chapter [Ch 16]. * * * [A]nd all duties which, under the parts of this act relating to general elections or primary elections, devolve upon the county clerk, shall be performed by the township clerk.” (Emphasis supplied.)
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Per Curiam.
Defendant was convicted on January 29, 1980, of larceny in a building, MCL 750.360; MSA 28.592, following a jury trial. On March 17, 1980, defendant was sentenced to five years probation, with six months to be served in the St. Clair County jail. Defendant also was ordered to pay court costs in the amount of $200 and to reimburse the county in an amount not to exceed $300 for the costs of his court-appointed attorney. Restitution in the amount of $77.50 was also ordered. Defendant appeals as of right.
Defendant first argues that the prosecutor committed error requiring reversal by eliciting testimony from an investigating officer regarding defendant’s refusal to discuss the charged larceny until he had an opportunity to speak with an attorney and in commenting on defendant’s silence in his closing argument. We agree.
During trial the prosecutor examined Sheriffs Deputy Joseph Danna as follows:
"Q. [Prosecutor]: After you learned of Mr. Hoshowski’s involvement in this crime did you speak with him about it again?
"A. Yes, I did.
”Q. Was he willing to answer your questions?
"A. No, he did not want to talk to me until he got a lawyer.”
In the prosecutor’s closing argument, he remarked:
"How does Mark [Ernst] get involved with the police? Well, after Deputy Danna and Mr. Baresi and [defendant] have investigated the premises, [defendant] who initially according to the deputy was very cooperative, volunteering a lot of information, becomes more silent and secretive about the last evening’s events arid he says to the deputy, oh by the way, I was here. I was working on my car, and low and behold I was here with Mark Ernst.”
In People v Bobo, 390 Mich 355, 359; 212 NW2d 190 (1973), the Michigan Supreme Court stated:
"We will not condone conduct which directly or indirectly restricts the exercise of the constitutional right to remain silent in the face of accusation. 'Nonutterances’ are not statements. The fact that a witness did not make a statement may be shown only to contradict his assertion that he did.”
Under Bobo, if a defendant chooses to exercise his right to remain silent, that silence cannot be used against him at trial. People v Gerald Wells, 102 Mich App 558; 302 NW2d 232 (1980). Although Bobo involved a defendant’s right to remain silent at the time of arrest, this Court has extended the rule to encompass a defendant’s prearrest silence. People v Hurd, 102 Mich App 424; 301 NW2d 881 (1980), People v Wade, 93 Mich App 735; 287 NW2d 368 (1979).
In the instant case it is clear that Danna advised defendant of his Miranda rights before attempting to question him further about his involvement in the charged larceny. Although defendant initially was willing to talk, he merely repeated what he had told the officer on the morning following the incident. He then asserted his Miranda rights and refused to answer any additional questions until he had an opportunity to meet with an attorney. The fact that defendant refused to answer any additional questions after Danna learned of defendant’s involvement in the crime was brought out through the officer’s testimony. This was error under Bobo since the jury may have drawn an inculpatory inference from defendant’s refusal to submit to further interrogation. Although the error could be deemed harmless if Danna’s comment about defendant’s silence was unsolicited or was an unresponsive answer, no such claim can be made here. The prosecutor knew that defendant had exercised his right to remain silent from the officer’s earlier testimony at the preliminary examination. Thus, the offensive answer cannot be considered an inadvertent remark. Moreover, in his closing argument, the prosecutor commented on defendant’s silence by stating that defendant had been initially cooperative but became ”more silent and secretive”. We
find that the reference to defendant’s post-Miranda silence cannot be deemed harmless error. People v Hoye, 80 Mich App 258; 263 NW2d 343 (1977), People v Swan, 56 Mich App 22; 223 NW2d 346 (1974), lv den 395 Mich 810 (1975). See also People v Sain, 407 Mich 412; 285 NW2d 772 (1979).
We also find that the prosecutor committed error by questioning defendant regarding a felony charge which had not resulted in a conviction and by erroneously stating in closing argument that defendant had been convicted of a felony but pled guilty to a misdemeanor. Moreover, the error was compounded when the prosecutor stated in closing argument that according to a certified copy of defendant’s convictions he had been convicted of a felony but had pled guilty to a misdemeanor. This reference was not supported by evidence produced at trial and was a gratuitous reference, devastating to the defendant and factually false. The defense attorney made no objection to this reference and failed either to request that it be stricken with appropriate instructions to the jury or to move for a mistrial. Our review of the entire record in this case brings us dangerously close to questioning the effectiveness of defense counsel, but, since we have already found error requiring reversal, we choose not to predicate reversal on that issue.
Reversed.
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966).
It should be noted that the prosecutor misrepresented Danna’s testimony somewhat in his closing argument when he indicated that defendant reluctantly told the officer that he had been working on his car with Mark Ernst on the evening of the robbery; the record reveals that this information was voluntarily offered by defendant. The only testimony regarding defendant’s reluctance to cooperate with the investigation was Danna’s comment concerning defendant’s refusal to submit to further interrogation.
We note that the United States Supreme Court in Jenkins v Anderson, 447 US 231; 100 S Ct 2124; 65 L Ed 2d 86 (1980), recently has held that, in general, a defendant who elects to testify in his own behalf waives any Fifth or Fourteenth Amendment objection to the use of his prearrest silence for the purposes of impeachment. However, the Court expressly recognized that each state is free to form its own evidentiary rules regarding the use of such evidence. Id., 239. Michigan has already done so. The rule formulated in Bobo, supra, apparently was based on our Supreme Court’s interpretation of both the Michigan and Federal Constitutions. Id., 357, fn 1. A state may adopt a standard which affords its citizens greater protection than is required under the Federal Constitution. Oregon v Hass, 420 US 714, 719; 95 S Ct 1215; 43 L Ed 2d 570 (1975), People v Jackson, 391 Mich 323; 217 NW2d 22 (1974). Moreover, since the defendant’s silence resulted from the exercise of his Miranda rights, it appears that the prosecutor’s comments regarding defendant’s silence would be error even under Jenkins, supra, 238-240. | [
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Per Curiam.
Plaintiffs appeal as of right from an order of accelerated judgment entered in favor of defendants-appellees on March 25, 1980.
Defendants’ motion for accelerated judgment was apparently brought under GCR 1963, 116.1(5). In reviewing motions for accelerated judgment, courts must accept all well-pled allegations of the nonmoving party as true. Robards v Estate of Kantzler, 98 Mich App 414, 416; 296 NW2d 265 (1980).
As noted in Kircos v Goodyear Tire & Rubber Co, 70 Mich App 612; 247 NW2d 316 (1976), wherein the jurisdiction of the trial court over defendant Haas was challenged, plaintiffs filed their complaint against defendants Goodyear, Penske, Sports Car Club of America, Lola Cars, Ltd., and Carl A. Haas Automobile Imports, Inc., for injuries suffered when a tire exploded while being inflated. Plaintiffs’ complaint alleged that they were employed as volunteer pit crew members for race car driver Bob Nagle during a racing event known as the Road-America Can-Am, held at Elkhart Lake, Wisconsin, in August, 1972. On August 27, 1972, agents of defendants Goodyear and Penske were engaged in the dismounting of an old tire and the mounting of a new tire on a wheel rim which had been removed from Mr. Nagle’s race car, with plaintiffs’ assistance. A locking air hose was used to inflate the tire. The air hose was apparently left on for too long a period of time and the tire exploded, injuring plaintiffs.
On October 11, 1979, defendant Sports Car Club of America filed a motion for accelerated judgment, based upon a release which had been signed by plaintiffs. A hearing on defendant Sports Car Club of America’s motion, joined by defendants Goodyear and Penske, was held on January 6, 1980. The parties agreed that the accident took place in the paddock area of the racetrack, but the parties disagreed as to whether the paddock area was a restricted area. The trial court concluded that, since plaintiffs were members of a racing team, the release was enforceable:
"The Court: I think everyone’s theory is abundantly clear as to the court. I understand where you stand and what you are advocating. I am concerned, frankly about the affidavits which are quite equivocal in nature. It appears to the court that they were filed for the purpose of creating the question of fact. The affidavits seem to fly in the face of just undisputed facts, facts which cannot really be disputed. But without deciding that question at this point and in looking at the various documents which have been filed and listening to the arguments, there is no question here we are not dealing with a relationship between the various respondents and the general public. This tends to confuse the issue. We are dealing with respondents and members of the racing team. I don’t care what you call them. Whether you call them go-fers or any other name, they are members of the racing team. They are there for a purpose.
"Now, the release unquestionably is a legitimate contract. It is a method of restricting one’s liability from fortuitous events. It is a legitimate form of contract. It is not just restricted to this person and this person. The release is designed to apply to people who are engaged in this type of business, who are either racing cars, involved in the maintenance or furtherance of the purpose. It is a very confined group of people and the world over recognizes racing as a dangerous sport. These people are engaged in a very dangerous sport, no one can deny that, the world over it is recognized. The respondents took the only method, absent the absolute liability as available to protect themselves in a non-dangerous sport, namely through release and waiver of liability and indemnity agreement. It applies to the various areas in which the people are performing, in reliance to the racing of cars and the maintenance of cars and furtherance of these purposes.”
When plaintiffs’ attorney pointed out that a question of fact remained as to whether the paddock was a restricted area, the trial court responded as follows:
"The Court: I do not think that is a controlling question, here. We are not dealing with the member of the public. We are dealing with a member of the racing team, the very person that this type of release is designed to apply to. I do not think that is a controlling, whether general public or otherwise.”
After plaintiffs stipulated that their signatures on the release were authentic, the trial court issued its order of accelerated judgment.
On appeal, plaintiffs argue that the trial court erred in granting defendants’ motion for accelerated judgment upon concluding that the release agreement, signed by plaintiffs, barred plaintiffs’ cause of action.
As noted in Farmers Ins Group v Clear, 94 Mich App 655, 661; 290 NW2d 51 (1980), a defendant may make a motion for accelerated judgment when release is claimed as a defense under GCR 1963, 116.1(5). However, where factual issues exist, it is improper to grant a motion for accelerated judgment. Baker v Detroit, 73 Mich App 67, 75; 250 NW2d 543 (1976).
In the instant case, plaintiffs claim the trial court erred in gránting defendants’ motion for accelerated judgment because fact questions existed as to whether or not plaintiffs’ injuries occurred in a restricted area and whether or not defendants Goodyear and Penske were free from liability by virtue of their being participants, promoters, sponsors or advertisers.
The trial court concluded that defendants Goodyear and Penske qualified as being participants, promoters, sponsors or advertisers and that it made no difference whether or not plaintiffs were injured in a restricted area because they were persons participating in the racing event. The first issue is, therefore, whether or not the trial court correctly construed the terms of the release agreement. In Fireman’s Fund American Ins Cos v General Electric Co, 74 Mich App 318, 323-324; 253 NW2d 748 (1977), the Court stated:
"As a starting point in interpreting this clause, we note that:
" '[t]he general rule in the interpretation of all contracts, including indemnity contracts, is to ascertain the intention of the parties. Klever v Klever, 333 Mich 179 [52 NW2d 653] (1952), Smeader v Mason, 341 Mich 139 [67 NW2d 131] (1954), Sobczak v Kotwicki, 347 Mich 242 [79 NW2d 471] (1956). However, with regard to contracts indemnifying one against his own negligence, it is generally stated:
"' "It is well settled that a contract of indemnity will not be construed to indemnify the indemnitee against losses resulting to him through his own negligent acts, where such intention is not expressed in unequivocal terms.” 27 Am Jur, Indemnity, § 15, p 464.
" 'In Buffa v General Motors Corp, 131 F Supp 478, 482 (ED Mich, 1955), the court stated:
" ' "As a general proposition, a contract of indemnity which purportedly indemnifies against the consequences of one’s own negligence is subject to strict construction and will not be so construed unless it clearly appears from the language used that it was intended to have that effect.
" ' "It is also clear, however, that such clauses [indemnity clauses] are construed most strictly against the party who drafts them and the party who is indemnitee. Michigan Chandelier Co v Morse, 297 Mich 41 [297 NW 64] (1941), In re Traub Estate, 354 Mich 263 [92 NW2d 480] (1958).” ’ Meadows v Depco Equipment Co, 4 Mich App 370, 375-376; 144 NW2d 844 (1966).”
In Tope v Waterford Hills Road Racing Corp, 81 Mich App 591; 265 NW2d 761 (1978), lv den 405 Mich 822 (1979), plaintiff’s decedent, Harry Tope, a professional race car driver, was killed when his race car collided with a guardrail at a race which was sponsored by the defendant corporation. Plaintiff filed an action alleging defendant’s negligence in the design of the racecourse and in its management of the race. Defendant responded with a motion for accelerated judgment based upon a release agreement signed by plaintiff’s decedent. The trial court granted defendant’s motion and plaintiff appealed. On appeal, plaintiff claimed that the terms of the release agreement, which provided in part as follows, were contrary to public policy:
" TN CONSIDERATION of being permitted to enter for any purpose of the RESTRICTED AREA (herein defined as the area to which admission for the general public is prohibited, including but not limited to the pit area, racing surface and infield, including walkways, concessions and other appurtenances therein) each of the Undersigned, for himself and personal representatives, assigns, heirs and next of kin:
" '1. HEREBY RELEASES, WAIVES, DISCHARGES AND COVENANTS NOT TO SUE the Promoter, Racing Association, Track Operator, Track Owner, Landowner, and each of them, their officers, and employees, all for purposes herein referred to as RELEASEES, from all liability to the Undersigned, his personal representatives, assigns, heirs and next of kin for all loss or damage, and any claim or demands therefor, on account of injury to the person or property or resulting in death of the Undersigned, whether caused by the negligence of Releasees or otherwise while the Undersigned is upon the Restricted Area, and * * *.’ ” Tope, supra, 594-595.
The Court concluded that the terms of the above-quoted release agreement were not contrary to public policy. It also stated as follows:
"The waiver and release expressly exempts defendant from liability for damages to the plaintiff caused by defendant’s negligence. Construing the indemnity clause strictly against defendant we find the language unequivocal in exempting defendant from liability for damages sustained by the plaintiff because of defendant’s own negligence. See Klann v Hess Cartage Co, 50 Mich App 703, 705-706; 214 NW2d 63 (1973).” Tope, supra, 595-596.
In Tope, the release agreement specifically provided that in consideration for being permitted to enter into the restricted area of the racecourse, defendant was released from liability for any injury occurring while plaintiff’s decedent was within a restricted area. Since plaintiffs decedent, a race car driver, was injured while within a restricted area, the Court concluded that the language of the release agreement unequivocally released defendant from liability.
The consideration clause of the release agreement in the instant case provided as follows:
"IN CONSIDERATION of being permitted (1) in racing events, to enter for any purpose the RESTRICTED AREA (herein defined as the area to which admission for the general public is prohibited, including but not limited to the pit areas and racing surface), or (2) in non-racing events, to compete, officiate, observe, work for or for any purpose participate, each of the Undersigned, for himself and personal representatives, heirs and next of kin:
"1. HEREBY RELEASES, WAIVES, DISCHARGES AND COVENANTS NOT TO SUE the Sports Car Club of America, Inc., SCCA Regions, their officers and members, officials, car owners, drivers, pit crews, participants, persons in the Restricted Area, promoters, sponsors, advertisers, owners and lessees of premises used to conduct the event, and each of them, their officers and employees, all for the purposes herein referred to as RELEASEES, from all liability to the Undersigned, his personal representatives, assigns, heirs and next of kin for all loss or damage, and any claim or demands therefor, on account of injury to the person or property or resulting in death of the undersigned, whether caused by the negligence of Releasees or otherwise while the Undersigned is in or upon the Restricted Area, and/or competing, officiating in, working or for any purpose participating in such event;
"3. HEREBY ASSUMES FULL RESPONSIBILITY FOR AND RISK of bodily injury, death or property damage due to negligence of Releasees or otherwise while in or upon the Restricted Area, and/or while competing, officiating in, working or for any purpose participating in such event.” (Italics in original.)
Since the phrase "to compete, officiate, observe, work for or for any purpose participate” only referred to non-racing events in the consideration clause, plaintiffs argue that if an injury occurred while a person was "competing, officiating in, working or for any purpose participating in such event”, the release only applied to persons doing such during non-racing events and that during racing events, defendant Sports Car Club of America, participants, persons in the restricted area, promoters, sponsors, advertisers, owners and lessees were only released from liability for injuries occurring in the restricted area. However, even if we were to accept plaintiffs’ construction, we would still be persuaded that the release covered the activities in which they were engaged.
Both parties’ briefs on appeal, as well as their statements during oral arguments, clearly indicated that the area in which the injury occurred was not open to the general public. While members of the public could obtain admission to this area, this could only be done by the payment of an additional fee. While plaintiff defines "restricted area” as an area to which the general public was absolutely prohibited, we believe that it is sufficient that in order to enter the paddock members of the public needed to pay an additional fee and secure a pass. We, therefore, believe that the release covered plaintiffs’ activities.
On appeal, plaintiffs further claim that a disputed issue of fact existed as to whether defendants Goodyear and Penske were insulated from liability under the terms of the release. The re lease agreement provided that the following were released from liability:
"* * * [T]he Sports Car Club of America, Inc., SCCA Regions, their officers and members, officials, car owners, drivers, pit crews, participants, persons in the Restricted Area, promoters, sponsors, advertisers, owners and lessees of premises used to conduct the event, and each of them, their officers and employees * *
In our opinion, there was undisputed evidence that defendant Goodyear qualified as an advertiser. Mr. Nagle testified that his race car carried a Goodyear decal. Furthermore, there was undisputed evidence that defendant Penske was a participant. Attached to defendant Penske’s brief is a copy of an affidavit sworn to by Gerald Tifian, defendant Penske’s representative at the race in question. He averred that defendant Penske was a participant in the racing event. Since plaintiffs presented no evidence to the contrary, we conclude that the trial court did not err in finding that defendants Goodyear and Penske qualified as indemnitees.
In its brief on appeal, defendant Sports Car Club of America raises a claim that might provide another basis for accelerated judgment in its favor. It is claimed that on March 22, 1973, plaintiff Brodowicz made a claim for medical and loss of work benefits with defendant Sports Car Club of America’s insurer and on September 31, 1973 [sic], plaintiff Kircos made a similar "participant’s” claim. It is alleged that in plaintiffs’ responses to defendants’ requests for admissions, plaintiff Brodowicz admitted receiving benefits totaling $4,898.55 and plantiff Kircos admitted receiving benefits totaling $13,537.50.
In Chapman v Ross, 47 Mich App 201, 205; 209 NW2d 288 (1973), the Court stated:
"We agree with defendants’ contention that the law applicable to the rescission of release agreements requires that the party seeking to avoid a settlement or release must tender back the amount paid, thus returning both parties to the status quo. Randall v Port Huron, St C & M C R Co, 215 Mich 413 [184 NW 435] (1921), Kirl v Zinner, 274 Mich 331 [264 NW 391] (1936), Carey v Levy, 329 Mich 458 [45 NW2d 352] (1951).”
Similarly, in Carey v Levy, 329 Mich 458, 463; 45 NW2d 352 (1951), the Court stated:
"We think the law controlling the instant case is stated quite definitely in Kirl v Zinner, 274 Mich 331, wherein the plaintiff disavowed any remembrance of having consummated the settlement and release. We quote:
" 'A compromise and release is not to be confused with the law of contract, in which equivalents are exchanged, for the very essence of a release is to avoid litigation, even at the expense of a strict right. * * *
" 'It is a general and salutary rule that one repudiating or seeking to avoid a compromise settlement or release, and thereby revert to the original right of action, must place the other party in statu quo, otherwise the very fact of payment, in consideration of the compromise of release, will likely operate as a confession of liability.’
"Our research has brought attention to several decisions of courts in other jurisdictions which are in full accord with our holding in Kirl v Zinner, supra, and in accord with the decision of the trial judge in the instant case.”
In the instant case, there has been no showing that plaintiffs tendered back the amount paid in benefits. However, there is no indication that the release was signed in consideration for receiving such benefits or that the benefits were received because plaintiffs signed the release. Without the presentation of additional evidence, this Court does not believe that the fact that plaintiffs might not have tendered back the benefits would alone serve to justify the trial court’s order of accelerated judgment. Nevertheless, because we hold the release in question to be unambiguous, these issues need not be resolved
Affirmed. Costs to defendants. | [
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Bronson, J.
Defendant and John Duncan Wallach were charged with the first-degree murder of Elmer Evans, in contravention of MCL 750.316; MSA 28.548. Gonzales and Wallach were separately tried, however. Following a jury trial in the Oakland County Circuit Court, defendant was found to be guilty as charged. He was sentenced to a mandatory term of life imprisonment. Defendant now appeals as of right.
On Sunday, January 28, 1979, two bodies were found buried in the snow next to a house located on Silver Down Court in Waterford Township, Michigan. The victims later were identified as Fred Torres and Elmer Evans. Torres had been stabbed to death, and Evans died as the result of a beating.
The case against defendant was based almost solely on the testimony of Rhonna Burns. Burns’ testimony had been hypnotically refreshed prior to trial and was admitted over defense objections that the hypnosis may very well have irreparably tainted her true memory so that she was merely parroting suggestions implanted by the police.
According to the testimony of Burns, on Satur day night, January 27, 1979, she was at the Liberty Bar with John Wallach. Late that evening Wallach introduced her to defendant. Wallach then went over to Elmer Evans while Burns and defendant conversed. After talking to Evans, Wallach came back to the booth where Burns and defendant were. He said that Evans needed a ride home. Defendant then went over to Evans who gave defendant his car keys. Defendant then left by way of the front door — apparently to go to Evans’ car which Evans had said was parked in front of the bar. Wallach, Burns, and Evans exited through the back door of the bar and went to Wallach’s station wagon. The trio drove to a warehouse. Defendant was waiting there, standing in front of a small blue car. Defendant got into the back seat of the station wagon and sat next to Evans. They then drove to a house on a hill and stopped in front of a garage. Stating that he had to go to the bathroom, defendant got out and went out around the garage toward the right. Wallach and Evans then got out of the car and went toward the left, out of Burns’ view. After approximately 10 or 20 minutes, defendant returned. Wallach returned immediately thereafter. Evans, however, did not return. Wallach’s right hand was cut and blood was on his hand and pants. Burns and Wallach then dropped defendant off downtown.
The question which is dispositive of this appeal is whether the trial court erred in allowing the testimony of Rhonna Burns since her memory had been hypnotically refreshed and her testimony consisted mostly of posthypnosis recollections. If so, defendant’s conviction must be reversed. If not, at most, the other claims raised by defendant constitute harmless error.
In People v Tobey, 401 Mich 141, 145; 257 NW2d 537 (1977), the Michigan Supreme Court reaffirmed its adherence to the rule of Frye v United States, 54 US App DC 46, 47; 293 F 1013, 1014 (1923), limiting the admission of scientific evidence to techniques which have gained general acceptance in the particular areas in which they belong. Moreover, the general scientific recognition of a particular technique must be established by disinterested experts and not by those intimately linked to the technique. As will be detailed below, at present we believe that hypnosis as a scientifically accepted technique is akin to the polygraph examination. See People v Barbara, 400 Mich 352; 255 NW2d 171 (1977). While both polygraph examination and the hypnosis technique under consideration here have achieved some degree of acceptance, neither has gained that degree of general acceptance in the scientific community which distinguishes a true science from a pseudoscience.
Two decisions of this Court have spoken to the problem of the admissibility of hypnotically "refreshed” testimony. In People v Hangsleben, 86 Mich App 718; 273 NW2d 539 (1978), the defense sought to introduce into evidence a tape recording of an interview between a psychiatrist and defendant while the latter was under the effects of hypnosis. The trial court denied the defense request. This Court held that no error had occurred. Hangsleben differs significantly from this case. There the issue was not whether a witness who had been hypnotized could give testimony but, rather, whether a criminal defendant could permissibly inform the jury that his memory was restored by hypnosis to bolster his credibility. The Hangsleben Court noted out-of-state opinions calling posthypnotic testimony suspect and concluded by holding that if error had occurred it was harmless since any reference to a hypnotic memory tended to impeach, rather than enhance, credibility.
The other Michigan decision dealing with this problem, People v Tait, 99 Mich App 19; 297 NW2d 853 (1980), is much more like the instant matter than Hangsleben. In Tait, a prosecution witness gave hypnotically refreshed testimony. Defense counsel did not learn of the hypnosis until after the first day’s testimony and then moved for a mistrial which was denied. In Tait, no evidence concerning the reliability of hypnosis as a method of uncovering a true memory was introduced. Furthermore, the hypnotist was an amateur and not a professional psychiatrist. Tait found that in respect to hypnotically refreshed memory the Tobey test for reliability had not been satisfied.
While Hangsleben was limited in its holding to the lack of adequate foundation presented in that case, Tait is unclear as to the intended scope of its holding. It appears, however, that the Tait decision has a more expansive scope than Hangsleben and stands for the proposition that hypnosis has not achieved sufficient scientific acceptance to allow the admission of testimony affected by the process.
It generally is agreed among those who have studied the hypnotic state that it is a condition of altered consciousness marked by heightened suggestibility. A subject in a hypnotic state may not have accurate recall. Indeed, there is a tendency in the hypnotized subject to relate false memory, distortions of memory caused by the process of age regression induced by hypnosis in which distinct experiences are jumbled and recalled as one, fantasies, and confabulations (the creation of bits of information to fill in the gaps between that which is actually remembered). This problem is exacerbated significantly by the tendency of the subject to respond in a way which he believes the hypnotist desires. See, among others, Diamond, Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness, 68 Cal L Rev 313 (1980), Note: Hypnotized Witnesses May Remember Too Much, 64 ABAJ 187 (1978), Spector and Foster, Admissibility of Hypnotic Statements: Is the Law of Evidence Susceptible?, 38 Ohio St LJ 567 (1977), Dilloff, The Admissibility of Hypnotically Influenced Testimony, 4 Ohio N U L Rev 1 (1977), Comment: Refreshing the Memory of a Witness Through Hypnosis, 5 UCLA-Alaska L Rev 266 (1976), Comment: Hypnosis, Truth Drugs, and the Polygraph: An Analysis of Their Use and Acceptance by the Courts, 21 U of Fla L Rev 541 (1969), Note: Hypnotism, Suggestibility and the Law, 31 Neb L Rev 575 (1952), Ladd, Legal Aspects of Hypnotism, 11 Yale LJ 173 (1902).
Bernard Diamond, professor of both law and clinical psychiatry, states in Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness, supra, 314-315 (hereinafter Diamond):
"In many cases, presentation to the jury of all facts, whether legally relevant or not, may be desirable. Indeed, I have often expressed the opinion that traditional rules of evidence restricting the information available to the trier of fact may impede a just decision. This principle does not, however, apply to the testimony of witnesses whose memories have been previously enhanced by hypnosis. I believe that once a potential witness has been hypnotized for the purpose of enhancing memory his recollections have been so contaminated that he is rendered effectively incompetent to testify. Hypnotized persons, being extremely suggestible, graft onto their memories fantasies or suggestions deliberately or unwittingly communicated by the hypnotist. After hypnosis the subject cannot differentiate between a true recollection and a fantasy or a suggested detail. Neither can any expert or the trier of fact. This risk is so great, in my view, that the use of hypnosis by police on a potential witness is tantamount to the destruction or fabrication of evidence. Recently, some courts have shown a healthy suspicion of the veracity of this sort of testimony. Yet even under stringent safeguards, including presentation to the trier of fact of the fullest possible information on the effects of hypnosis, the trier will not be able to sort out reality from witness fantasy and weigh this testimony properly.” (Footnotes omitted.)_
Despite a lack of general scientific acceptance and the problems with hypnotically refreshed or created memory recognized by scholars who have done research in this field, at present the majority of jurisdictions which have considered the question have allowed the testimony of one who has had his memory "refreshed” through hypnosis. In light of our research — which indicates that if such testimony be admitted at all, it should be allowed only with stringent safeguards in the hypnotic process —we were understandably surprised with the widespread acceptance of hypnotically "refreshed” testimony. Upon examination of the case law, however, we find that the lead case on this question, Harding v State, 5 Md App 230; 246 A2d 302 (1968), cert den 252 Md 731, cert den 395 US 949; 89 S Ct 2030; 23 L Ed 2d 468 (1969), provides an explanation for this phenomenon.
The Harding Court accepted the scientific reliability of hypnosis based solely on the testimony of Ralph P. Oropolo, who was employed as a psychologist by "several law enforcement agencies and state’s attorneys’ offices in Maryland and other states”. Oropolo’s educational credentials included a Master’s Degree in psychology and some work in pursuit of a doctorate. The court gave great weight to Oropolo’s testimony about the effects of hypnosis. Oropolo explicitly discounted the possibility of enhanced suggestibility of the subject while in the hypnotic trance. He further stated that while the witness was under hypnosis he had made no improper suggestions. The Harding Court also found it significant that the witness stated that she was testifying from her own recollection.
The court gave little consideration to authorities other than Oropolo. Near the end of the opinion, the court noted medical authorities which found that hypnosis was recognized as a means for getting a subject to recall painful experiences. The Harding Court then noted in passing that "some authorities warn that fancy can be mingled with fact in some cases”. Id., 246.
Upon careful scrutiny, the reasoning of the Harding Court is not persuasive. Indeed, it is riddled with problems. First, Oropolo, the hypnotist in Harding, indicated that hypnosis does not dispose a subject to suggestion. We were unable to locate one article written either before or after Harding which supports this assertion. Diamond, supra, 323, categorically states that this claim directly contradicts all scientific evidence. Second, it must be borne in mind that Oropolo was an employee of various law enforcement agencies. The Court in Harding did not discuss the hard question of whether Oropolo’s questionable impartiality should affect the testimony’s admissibility. Third, the hypnosis was conducted at a police barracks at a time at which Harding was already the prime suspect. Undoubtedly everybody connected with the case was desirous of confirming in their own minds that Harding was the culprit. Fourth, the victim modified her story while under hypnosis. Dilloff writes in The Admissibility of Hypnotically Inñuenced Testimony, supra, 19-20 (hereinafter Dilloff), that, at a minimum, the fact of modification should have signaled to the Harding Court the possibility of confabulation or memory distortion. This was particularly true given that the victim not only added new details to the incident but changed other aspects of the original story. Fifth, the court found it significant that the victim believed that she was testifying from her own recollection. However, the scientific studies conducted on hypnosis support the conclusion that hypnotized subjects are unable to sort out accurately fact from distortions after having undergone the process. Dilloff, supra, 20. Diamond, supra, 335-336 writes:
”6. After the hypnotic subject is awakened, do the distorting effects of the hypnosis disappear?
"This too is a critical issue for the admissibility of testimony where there has been pretrial recall enhancement. For courtroom testimony to be admissible, the witness must have emerged from the trance with his powers of recall intact and presumably enhanced, and must be able to relate from the witness stand his wholly conscious recollections as he now perceives them. The evidence, however, is that the effect of suggestions made during hypnosis endures. Although the more theatrical types of posthypnotic suggestion may last only hours or days, less obvious suggestions may last years or even a lifetime. A highly pertinent example is the so-called 'posthypnotic source amnesia.’ This occurs when something learned under hypnosis is carried into the wakened state but the fact that the memory or thought was learned under hypnosis is forgotten. A sizable proportion of hypnotic subjects spontaneously do so, and the incidence of source amnesia can be increased by suggestions from the hypnotist. A subject who has lost the memory of the. source of his learned information will assume that the memory is spontaneous to his own experience. Such a belief can be unshakeable, last a lifetime, and be immune to all cross-examination. It is especially prone to 'freeze’ if it is compatible with the subject’s prior prejudices, beliefs, or desires. This type of distorted memory is very apt to appear genuine and spontaneous, and will be unlikely to disappear.
"One can only conclude that hypnosis can induce subtle but highly significant distortions of memory that will persist indefinitly, distorting all subsequent related recall of the subject. My own experience has convinced me that even communications and other cues to the subject made in the normal, waking state, both before and shortly after the hypnotic session, may be similarly influenced by the hypnotic experience. Thus the police may tell a witness something just before hypnosis and then hypnotize him. When he awakes, his 'source amnesia’ may lead him to believe that the police statement was a product of his own memory. Sometimes communications made to the patient after hypnosis may be retroactively integrated into the hypnotic recall. The subject may recall a fact with no awareness that it was not the product of his own mind. Or he may recall being told the fact but insist that he had prior knowledge of it. This often happens when subjects are shown photographs or line-ups for identification just before or just after hypnotic sessions. In my experience, time, rather than weakening the effects of the hypnotic distortion, tends if anything to fix it into a permanent pattern. Therefore, the pretrial hypnosis of a witness appreciably influences all of his subsequent testimony in ways that are outside the consciousness of the witness and difficult, if not impossible, to detect.” (Footnotes omitted.)
See also, fn 4, supra.
DillofF, supra, 19, states that in his opinion the testimony of the complainant in Harding ''was probably neither very reliable nor accurate”. Dilloffs opinion does not represent a hostility to hypnotically refreshed testimony since he ultimately concludes that such evidence should be deemed admissible despite its potential for mischief.
Obviously, we cannot overrule Harding, We have devoted so much time to a consideration of this case solely because most of the subsequent cases allowing the admission of hypnotically revived or induced testimony rely on Harding or its progeny for reasoning or sources. See, e.g., State v Jorgensen, 8 Or App 1; 492 P2d 312 (1971), State v Brom, 8 Or App 598; 494 P2d 434 (1972), State v McQueen, 295 NC 96; 244 SE2d 414 (1978), (also advancing the theory that hypnosis is no less acceptable than other memory enhancing procedures), People v Smrekar, 68 Ill App 3d 379; 24 Ill Dec 707; 385 NE2d 848 (1979), (over the dissent of Justice Craven, hypnotically "refreshed” testimony was allowed where, prior to the hypnosis, the witness had indicated that there was only a "50-50 chance” that she could identify the murderer), People v Diggs, 112 Cal App 3d 522; 169 Cal Rptr 386 (1980), (defendant’s conviction was reversed on other grounds, however), State v Temoney, 45 Md App 569; 414 A2d 240 (1980), United States v Adams, 581 F2d 193 (CA 9, 1978), cert den 439 US 1006; 99 S Ct 621; 58 L Ed 2d 683 (1978), United States v Awkard, 597 F2d 667 (CA 9, 1979), cert den 444 US 885; 100 S Ct 179; 62 L Ed 2d 116 (1979).
The one case which we have uncovered which would allow the admission of hypnotically "re freshed” memory, while recognizing the substantial problems of such testimony’s reliability, is State v Hurd, 173 NJ Super 333; 414 A2d 291 (1980). Hurd recognizes the limitations of Harding, supra, and provides an excellent analysis of the hypnotic process. Prior to allowing hypnotically enhanced testimony, the Hurd court required, as a prerequisite to admissibility, meeting a set of six standards proposed by Dr. Orne. See fn 4. In our opinion, Hurd certainly represents a more satisfactory solution to this problem than the indiscriminate admissibility of such evidence as propounded in Harding. Nonetheless, we do not believe that even the Hurd standards provide sufficient safeguards. While the Hurd standards would have the tendency to minimize distortion due to hypnotic suggestibility, our examination of the literature convinces us that, even following these criteria, substantial problems with confabulation, fantasy, and distortion would remain. Consequently, in individual cases, the Hurd standards might have an affirmatively detrimental effect. The standards, themselves, would give the hypnotic process an aura of reliability which, in actuality, it does not possess. It is far too likely that a jury would be even less critical of the testimony because of the indicia of reliability provided by such standards. We find nothing in the literature indicating in what percentage of the cases — under the most rigorous clinical standards — a subject’s hypnotic memory later proves to be faulty. Furthermore, as noted previously, there is no way a jury can determine the credibility of the previously hypnotized subject. Since the subject comes to believe the version of the events given while under hypnosis, whether true or not, the jury has no real ability to assess credibility based on demeanor. Indeed, if anything, the body language of the witness will project great confidence in the testimony being given and be persuasive for this reason.
Two recent decisions from the Minnesota and Arizona Supreme Courts are in accord with the position we adopt in this opinion. In State v Mack, 292 NW2d 764 (Minn, 1980), a unanimous Supreme Court noted many of the problems with Harding, supra, raised in this opinion. We concur with the conclusion reached in Mack:
"We do not foreclose, by this opinion, the use of hypnosis as an extremely useful investigative tool when a witness is enabled to remember verifiable factual information which provides new leads to the solution of a crime. A witness under hypnosis may, for instance, bring forth information previously unknown to law enforcement authorities, such as a license plate number, which subsequently aids police in identification of a suspect. Experts see no reasonable objection to the use of hypnosis in this manner, provided the witness is willing, as long as the material remembered during hypnosis is not subsequently used in court as part of an eyewitness’ testimony. Even where the use of hypnosis truly is to investigate a crime rather than to create a witness, adequate safeguards should be established to assure the utmost freedom from suggestion upon the hypnotized person’s memory recall in the event he or she must later be called to testify to recollections recorded before the hypnotic interview.” (Footnote omitted.) Mack, supra, 771.
See, also, State v Mena, 128 Ariz 244; 624 P2d 1292 (1980).
Although we hold that hypnosis as a technique to enhance memory recall has not received sufficient scientific recognition of reliability to allow the post-hypnotic "recollections” of witnesses to be introduced into evidence, we conclude by briefly discussing the various interviews and hypnotic sessions undergone by Rhonna Burns in this case. Our purpose in so doing is to demonstrate that under any reasonable set of guidelines to ensure the reliability of hypnotic recall, the handling of Burns hopelessly tainted her as a witness.
Prior to any hypnosis sessions, Rhonna Burns was interviewed on four separate occasions by the police. In none of these interviews did Burns indicate that Gonzales was involved in the killings. Indeed, Burns denied having any recollection of the killings. The first two interviews were relatively free of police suggestion at least so far as the record indicates. However, the third and fourth interviews present another situation again.
On March 29, 1979, Detective Sergeant Werner interviewed Burns for the third time. At first Burns did not remember anything new about the incident. Werner then asked Burns if she saw defendant at the Liberty Bar on the night of January 27, 1979. Burns replied she didn’t remember seeing him. When asked if she remembered Fred Torres coming into the Liberty Bar, Burns replied affirmatively and also stated that she remembered Wallach saying that he was going to give Chico and Torres a ride to the Wide Track Bar, which was about two blocks away from the Liberty Bar. She and Wallach sat in a booth in the back of the bar. Burns then remembered that Wallach pointed to an old man (perhaps Elmer Evans) sitting at the back of the bar. Wallach stated that they should give him a ride home because he was drunk. She, Wallach, and the old man left the bar together, and they drove the old man home. Burns could not remember if they met anyone at the old man’s house. After Wallach and Burns dropped the old man off, they met Chico and drove him home. She and Wallach then returned to the Liberty Bar where Wallach left her alone for a brief time. The interview was interrupted for a short period. Later that same day Werner returned and showed Burns photographs of Evans, but Burns wasn’t sure if he was the same old man she had been talking about. Asked if she knew where the old man lived, Burns described a big, new house with dark siding. This description fit the house located at 2610 Silver Down Court, where Evans’ body had been found. Burns subsequently identified a picture of the house at 2610 Silver Down Court and said it looked like the house at which the old man had been dropped off. Werner then asked Burns if she had returned to this house at 5 a.m. on Sunday, January 28, and if she got out of the car, saw some bodies, and screamed. Burns replied that she could have, but that she didn’t remember. At some point in this interview, Werner showed Burns a photograph of defendant and asked her if she had seen him in the Liberty Bar. Officer Werner, either during or prior to this interview, told Burns that defendant was short, stocky, and of Mexican or Spanish descent. Burns still did not remember defendant being at the Liberty Bar.
Detective Werner held a fourth interview with Rhonna Burns on April 3, 1979. For the first time Burns remembered defendant sitting at the bar on January 27, 1979, with her and Wallach. Burns now also remembered Wallach and defendant walking up to the old man and asking him if they could give him a ride home. The old man gave defendant his car keys. She, Wallach, and Evans left the bar together; they picked up defendant, who got into the back seat of Wallach’s car with Evans, and then took Evans to what Burns believed to be his house. Both Wallach and defendant helped the old man out of the car. Burns, defendant, and Wallach then returned to the Liberty Bar. She and Wallach subsequently drove home. Somewhere in town they picked up a man named Chico and drove him home. In response to Werner’s question, Burns told him that she remembered Wallach picking up a shovel at Tina Meston’s house and that he put it in the back of the car. When asked if she got out of the car and saw Wallach cover the bodies with snow and then screamed, Burns replied that she may have seen the bodies and screamed but she could not remem ber for sure. At this interview, Burns consented to Officer Werner’s request that she undergo hypnosis in order to improve her memory.
On April 13, 1979, Werner and another officer picked up Burns to drive her to Lansing for the hypnosis session. En route, the officers drove Burns to the murder scene, where she stated that this was where she and Wallach had driven the old man. While walking around the grounds, she remembered various details of the night in question, such as paths in the snow going both to the right and left of the garage. The officers then drove Burns to the Crescent Machine Company where Evans’ car had been found the day after the bodies were found. Burns was not sure if this was the area where they had picked up defendant on January 27, 1979.
By the time that Rhonna Burns was hypnotized by Dr. Donald Rossi, the various interviews conducted by the police had already suggested to her their theory of the killing. She had been told how defendant looked and was shown a photograph of him. She had been shown a photograph of Elmer Evans. By the police questioning, it was suggested to Burns that she had seen corpses and screamed. After the hypnotic process, Burns recalled seeing the bodies and screaming.
Furthermore, some consideration must be given to Burns as a subject for hypnosis. In Dr. Rossi’s opinion, Burns was mildly retarded. This fact may well have exacerbated the already touchy problem of memory distortion while under hypnosis. Rossi acknowledged that a hypnotized person might "recall” events which were merely suggested to them. This can happen particularly where the subject is confused or afraid. It is likely that both words accurately described Burns’ mental state. The con tinual evolution of her version of the events in question demonstrate confusion. At least in the early interviews with the police, Miranda warnings were given to Burns. She might well have believed herself to be a suspect in the killings.
It is clear that Burns’ recollections were not desired solely for investigative purposes. See Mack, supra. Basically, what the police sought from her were statements implicating defendant as one of the killers. This was information which could not be independently verified. Even if the police had had Burns hypnotized solely for investigative purposes, the hypnosis session came too late to be free of taint due to the various suggestions made by the police during the various interviews. If for investigative purposes, the hypnosis session should have occurred after the first police interview, if at all.
Reversed and remanded.
The oldest case we find involving the admissibility of hypnotically linked evidence arose in a context similar to Hangsleben. In People v Ebanks, 117 Cal 652; 49 P-1049 (1897), the Court held that the trial judge properly excluded the testimony of a hypnotist who was to tell of the statements made by defendant while he was under hypnosis. In State v Pusch, 77 ND 860; 46 NW2d 508 (1950), the North Dakota Supreme Court held that a recording of an interview conducted while defendant was under hypnosis was not admissible over prosecution objections. Accord, Greenfield v Commonwealth, 214 Va 710; 204 SE2d 414 (1974). In People v Modesto, 59 Cal 2d 722; 31 Cal Rptr 225; 382 P2d 33 (1963), however, the appellate court stated that it was within the trial court’s discretion to admit or exclude such taped interviews. There, the trial court was reversed because it had failed to recognize its discretion. See, also, People v Cox, 85 Mich App 314; 271 NW2d 216 (1978), excluding a tape recording of defendant’s interview with a psychiatrist while the former was under the influence of sodium brevital, a truth serum, because an inadequate foundation had been established concerning the scientific acceptance of the effect of such serums on the statements elicited.
See also, United States v Miller, 411 F2d 825 (CA 2, 1969), in which defendant’s conviction was reversed solely because the prosecution had failed to disclose to the defense that its principal witness had had his memory restored through hypnosis. The appellate court specifically stated, however, that its decision should not be construed as implying that the key witness could not testify on retrial.
Assuming, arguendo, that circumstances exist in which recollections induced by hypnosis should be admissible at trial, in this case, as in Hangsleben, an insufficient foundation was established to allow admissibility. The expert whose testimony served as the basis of the hypnotically revived memory was Dr. Donald Rossi, a civilian employee of the Michigan Department of State Police. Thus, he fails to qualify as a disinterested and impartial expert or scientist. Moreover, even Rossi did not call forensic hypnosis a science. Instead, he specifically referred to the process as an "art” and could not be considered a "technique guaranteeing truth * * * like a polygraph”. Barbara, supra, prohibited the use of polygraph evidence at trial. Since the prosecution’s own witness concedes hypnosis is not as able to guarantee truth as a polygraph, as an a fortiori proposition, it must be inadmissible as evidence at trial.
See, also, Dr. Martin T. Orne’s affidavit filed in the appeal of People v Quagliano to the United States Supreme Court from an unpublished opinion of the California Court of Appeals, Docket Crim. No. 29766 (Cal 2d Dist Ct App), cert den 439 US 875; 99 S Ct 212; 58 L Ed 2d 189 (1978). Dr. Orne is a professor of psychiatry at the University of Pennsylvania, past president of the Society for Clinical and Experimental Hypnosis, and president of the International Society of Hypnosis. His affidavit provides in part:
"[I] have found hypnosis dramatically useful in some instances where I have used it to help bring back forgotten memories of witnesses to crimes, while in others a witness might, with the same conviction, produce data that is totally inaccurate. This means that material produced during hypnosis or immediately after hypnosis, inspired by hypnotic revivification, may or may not be historically accurate. As long as this material is subject to independent verification its utility is considerable and the risk attached to the procedure minimal. However, there is no way by which a psychologist or psychiatrist, even with the most extensive experience in the field of hypnosis, can differentiate between an actual memory or a confabulation in a particular case without independent verification. Thus, there are many instances when subsequently verified accurate license numbers were recalled in hypnosis by individuals who previously could not remember them; by the same token, however, a good many license numbers which witnesses recalled turned out to belong to individuals where neither they nor their cars could possibly have been implicated. Unfortunately, a witness who is uncertain about his recall of a particular set of events can, with hypnosis, be helped to have absolute subjective conviction about what had happened, though the certainty can as easily relate to a confabulation as to an actual memory.
"While under normal circumstances memory distortions may occur, the use of hypnosis can well nigh guarantee that a responsive subject develops subjective certainty about what happened. He may come to believe that he can identify someone with certainty even though he had never actually seen him. By the same token, of course, he may also correctly recall that he had never seen the individual, or in another instance it will turn out that he did catch enough of a glimpse to be able to bring an accurate image to mind. The crucial fact is that neither the subject nor the expert observer can distinguish between confabulation and accurate recall in any particular instance. The only way that can be done is on the basis of external corroborative data.”
Dr. Orne is also the coauthor of the article on hypnosis appearing in 9 Encyclopedia Britannica 133 (1976), wherein he states: "It remains controversial whether hypnotic suggestions can improve memory effectively.” Id., 137.
The defendant in Harding was on trial for assault with intent to rape and assault with intent to murder. There was independent evidence that the victim had been shot, that she had had sexual relations, and that she had been with the alleged assailants during the night. The victim had been in shock since she had been shot and had almost no recollection of what had happened prior to her wounding or what occurred after she was shot.
Following the first draft of this opinion, the Maryland Court of Special Appeals issued an opinion casting doubt on Harding’s continuing vitality in Maryland. The court held that the rule enunciated in Frye v United States, 54 US App DC 46; 293 F 1013; 34 ALR 145 (1923), had not been adopted in Maryland until after the Harding decision. Consequently, the court in Polk v State, 48 Md App 382; 427 A2d 1041 (1981), reversed defendant’s conviction which was based largely on hypnotically created memory. The court held that on retrial the trial judge was obligated to ascertain in the first instance whether the hypnosis technique has obtained general scientific acceptance. The trial court was also authorized to exclude the evidence if convinced that the hypnotist was not qualified or that the hypnosis was conducted under improper procedures.
Little need be said about the non-Harding theory advanced in McQueen. Hypnosis is less acceptable as a means of enhancing memory than other processes, e.g., reviewing notes, because of the inherent possibility that the hypnotic procedure will result in a pseudomemory which is not accurate.
These standards are:
"(1) The hypnotic session should be conducted by a licensed psychiatrist or psychologist trained in the use of hypnosis.
“(2) The qualified professional conducting the hypnotic session should be independent of and not responsible to the prosecutor, investigator or the defense.
“(3) Any information given to the hypnotist by law enforcement personnel prior to the hypnotic session must be in written form so that subsequently the extent of the information the subject received from the hypnotist may be determined.
"(4) Before induction of hypnosis, the hypnotist should obtain from the subject a detailed description of the facts as the subject remembers them, carefully avoiding adding any new elements to the witness’ description of the events.
"(5) All contacts between the hypnotist and the subject should be recorded so that a permanent record is available for comparison and study to establish that the witness has not received information or suggestion which might later be reported as having been first described by the subject during hypnosis. Videotape should be employed if possible, but should not be mandatory.
"(6) Only the hypnotist and the subject should be present during any phase of the hypnotic session, including the pre-hypnotic testing and post-hypnotic interview.” Hurd, supra, 363.
In Hurd, the court ultimately ruled that the state had not met its burden of showing that the standards had been complied with. Consequently, it granted defendant’s motion to suppress a witness’s identification which could not be made until she had submitted to a pretrial hypnotic procedure.
In cases where the police may want to use hypnosis as an investigative tool, we adopt the Hurd standards as the basis for how this should be done. What happened to Burns in the instant case provides an example of what should not be done.
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D. E. Holbrook, Jr., P.J.
Plaintiff appeals as of right from an order of the trial court granting defendant’s motion for accelerated judgment on the grounds that plaintiff’s claim was barred by the statute of limitations.
On February 18, 1976, the plaintiff received a transfusion of blood platelets while an in-patient at the University Hospital in Ann Arbor. Later the same day, one of the physicians treating plaintiff advised her that at least one of the units of platelets was diseased with serum hepatitis and that she would likely contract hepatitis.
Plaintiff was readmitted to University Hospital on July 23, 1976, and discharged August 2, 1976, when she was diagnosed as having severe serum hepatitis, which later developed into chronic hepatitis.
Plaintiff alleges that defendant furnished all units of platelets to University Hospital which were subsequently administered to her. The defendant failed to discover the donor’s history of serum hepatitis because the donor’s name had been misspelled. The misspelled name cross-matched with a donor who had no history of hepatitis. After finding their error, defendant informed University Hospital.
On October 9, 1979, plaintiff filed her complaint against defendant. Defendant countered with a motion for accelerated judgment on the ground that plaintiff’s claim was barred by the statute of limitations. After consideration of the facts alleged in plaintiff’s complaint, briefs submitted on behalf of both parties and oral argument, the circuit court granted defendant’s motion. In so ruling, the court found that, even if the medical malpractice statute applied, as plaintiff contended, plaintiff should have discovered the cause of action sooner and her claim was now barred by the statute of limitations. We agree.
The sole issue on appeal is whether the trial court erred in granting the defendant’s motion for accelerated judgment. Whether this case is characterized as a negligence case, as defendant contends, or as a malpractice case, as plaintiff contends, either statute of limitations bars plaintiff’s claim. It is unnecessary for us to decide in this case whether the procurement and distribution of whole blood or blood derivatives fall within the purview of the three-year (negligence) or two-year (malpractice) statute of limitations.
Negligence
MCL 600.5805(7); MSA 27A.5805(7) is the applicable statute of limitations with respect to negligence. The statute of limitations is three years from the date of injury.
The date on which the three-year period commenced to run remains to be determined. A cause of action arising out of tortious injury to a person accrues when all the elements of the cause of action have occurred and can be alleged in a proper complaint. These elements are:
1. The existence of a legal duty by defendant toward plaintiff;
2. the breach of such duty;
3. the proximate causal relation between the breach of such duty and an injury to the plaintiff; and
4. the plaintiff must have suffered damages. Connelly v Paul Ruddy’s Equipment Repair & Service Co, 388 Mich 146, 150; 200 NW2d 70 (1972), William C Reichenbach Co v Michigan, 94 Mich App 323; 288 NW2d 622 (1979).
We find that the three-year statute of limita tions began to run no later than August 2, 1976. The diseased blood was administered to the plaintiff on February 18, 1976. On the same day, she was informed of this by her physician, who also told her she would likely contract hepatitis. By August 2, 1976, plaintiff was diagnosed as having serum hepatitis. As of August 2, 1976, all the elements of the cause of action had occurred and could have been alleged in a proper complaint. Since plaintiff’s complaint was filed on October 9, 1979, it was not filed within the three-year period.
Plaintiff claims that her cause of action did not accrue until she knew of defendant’s involvement with the blood platelets. The accrual date of plaintiff’s cause of action is not delayed until she becomes aware of the identity of the alleged tortfeasor that might ultimately be liable for her injuries. Thomas v Ferndale Laboratories, Inc, 97 Mich App 718; 296 NW2d 160 (1980).
Malpractice
A malpractice claim is governed by MCL 600.5805(3); MSA 27A.5805(3) and MCL 600.5838; MSA 27A.5838, which require commencement of suit within two years after treatment is discontinued or within six months of the time the asserted malpractice is or should have been discovered, whichever is later.
Since treatment by the defendant was discontinued before August 2, 1976, it is evident that the plaintiff exceeded the two-year limitation. The question now becomes when, by the exercise of reasonable diligence, should the plaintiff have discovered the existence of a claim._
In order for a court to conclude as a matter of law that a person has or should have discovered asserted malpractice, it must be shown that the person knew of the act or omission itself and had good reason to believe the act itself was improper or was done in an improper manner. Under certain circumstances, mere knowledge of the act will be sufficient because the act alone, i.e., transfusion of diseased blood, gives good reason to believe it was improper. Leary v Rupp, 89 Mich App 145, 149; 280 NW2d 466 (1979).
In the instant case, as early as February 18, 1976, the plaintiff knew she had received blood diseased with hepatitis. By August 2, 1976, plaintiff knew she had contracted hepatitis. The transfusion of diseased blood gave plaintiff good reason to believe the act was improper. Thus under the "time of discovery” rule, the claim is barred.
Plaintiff also argues that the motion for accelerated judgment was improperly granted because factual questions existed as to whether she could have discovered the identity and involvement of the defendants sooner. Accelerated judgment is improper where material factual disputes exist regarding discovery of the alleged malpractice. Jackson v Vincent, 97 Mich App 568, 572; 296 NW2d 104 (1980). However, the "time of discovery” rule relates to the discovery of the asserted malpractice and not the discovery of defendant’s identity or involvement.
The trial court therefore did not err in granting defendant’s motion for accelerated judgment.
Affirmed. Costs to appellee.
MCL 600.5805(7); MSA 27A.5805(7) is now MCL 600.5805(8); MSA 27A.5805(8).
MCL 600.5805(3); MSA 27A.5805(3) is now MCL 600.5805(4); MSA 27A.5805(4). | [
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Allen, J.
Following a joint jury trial, defendant and his codefendant and brother, Jeffrey Kramer, were each found guilty of armed robbery, MCL 750.529; MSA 28.797, kidnapping, MCL 750.349; MSA 28.581, and three counts of assault with intent to commit murder, MCL 750.83; MSA 28.278. Sentenced August 1, 1979, to five concurrent terms of imprisonment of from 10 to 30 years, defendant appeals of right, assigning nine grounds for reversal.
The incidents for which defendant was convicted took place in the early morning hours of April 3, 1978, when defendant and his brother, wearing ski masks and brandishing shotguns, entered the Red Oaks Bar in Wixom. They forced the barmaid and customers to lie on the floor, extracted money from their wallets, and, upon being discovered by officers from the Wixom and Wolverine Lake Police Departments, fled in a copper-orange colored pickup truck after firing a shot which struck one of the officers in the hand. The robbers took the barmaid, Marion Molk, as a hostage. At two different locations, roadblocks were set up, but each time the robbers escaped after exchanging gunfire with the police. Eventually the truck was abandoned, and the two robbers escaped on foot, leaving the hostage lying unharmed in the pickup truck. A box of shotgun shells was found lying near the shoulder of the road next to the abandoned truck. A sawed-off, single barrel shotgun was found lying on the shoulder of the road to the rear of the truck on the passenger side. On the morning of April 13, 1978, defendant and his girlfriend entered thé ticket office in the terminal building at the Detroit Metropolitan Airport. There he was arrested by officers of the Oakland County Sheriff’s Department, and a .38-caliber revolver was removed from his waistband. During trial, the arresting officer stated that the weapon was "loaded and ready to go”.
The arresting officer took defendant outside and placed him in his patrol car. At that moment, one of the officers saw a blue van and recognized Jeffrey Kramer as the driver. Jeffrey Kramer was promptly arrested, and a loaded handgun was removed from his trousers. After the two prisoners were secured, one of the arresting officers, Mark Goodrich, drove the van to the Sheriff’s Annex at the airport where the van was searched. Four shotguns and several rifles were found in the van. Further details of the robbery and arrests appear in the opinion of this Court on the appeal of the codefendant, Jeffrey Kramer. People v Kramer, 103 Mich App 747, 750-753; 303 NW2d 880 (1981).
The trial court denied motions for separate trials and further denied a motion to preclude the introduction of evidence of the shotguns and rifles found in the van when it was searched by the Oakland County Sheriff’s Department. The court held that defendant, Larry Kramer, had no standing to object to the search of the vehicle in which the codefendant, Jeffrey Kramer, was sitting when arrested. The court also stated that there was a sufficient exigency to justify the deputy’s second entry into the van.
During trial, prior to the prosecution’s resting its case, defendant moved, in limine, to preclude the prosecution from impeaching defendant by evidence of three prior convictions within the previous ten years. Defendant acknowledged convictions for breaking and entering with intent to commit larceny, carrying a concealed weapon, and gross indecency. The court ruled that should defendant take the stand the prosecution could question defendant regarding the three prior convictions but could not elicit the details of the crimes or the labels or titles of the offenses. Later during the trial, defense counsel stated on the record that his client declined to testify because of fear of undue prejudice if his prior record were made known to the jury.
Did the trial court commit error requiring reversal in ruling that the defendant could be impeached by use of evidence of his prior convictions but that only the fact of the prior convictions, and not the nature or details of the crimes could be elicited?
While this Court has split on the question, the weight of authority indicates that impeachment by evidence of prior, unspecified felony convictions clearly constitutes error. People v Vincent, 94 Mich App 626, 633; 288 NW2d 670 (1980), People v Jones, 92 Mich App 100, 109-112; 284 NW2d 501 (1979) , People v Graves, 98 Mich App 112, 116-117; 296 NW2d 4 (1979), People v Dixon, 99 Mich App 847, 849; 298 NW2d 647 (1980). Contra. People v Huff, 101 Mich App 232, 248-252; 300 NW2d 525 (1980) . However, such error is harmless where the evidence of guilt is overwhelming. People v Makidon, 84 Mich App 287, 289; 269 NW2d 568 (1978), People v Moseley, 94 Mich App 461, 465; 290 NW2d 39 (1979), People v Mustafa, 95 Mich App 583, 585; 291 NW2d 130 (1980), People v Ovegian, 106 Mich App 279; 307 NW2d 472 (1981). As set forth later in this opinion, the evidence against defendant, although circumstantial, was overwhelming, particularly the evidence linking him to the blue van and to the weapons found therein. Defendant’s main defense — lack of identification— would have been put severely to the test had defendant elected to testify. This, rather than fear of exposure by prior convictions, we believe, was the true reason that defendant declined to testify. We reject defendant’s argument that an error "can’t be harmless” where the defendant does not take the stand. In support of this assertion counsel points out that in Moseley and Ovegian the defendant did not testify and that in Makidon and Mustafa the opinion fails to disclose whether defendant testified or not. The inference to be drawn from counsel’s argument is that there is no case holding that an error in admitting a prior conviction is harmless where a defendant does not testify. However, a check of the record and file in Makidon does disclose that defendant elected to remain silent after the trial court declined to exclude evidence of defendant’s prior criminal convictions.
Did the trial court err in denying defendant’s motion to suppress evidence seized from the van pursuant to a search warrant, where the defendant was neither the owner nor the occupant of the van and where certain facts articulated in the affidavit for the search warrant were discovered by the affiant officer upon entering the van to drive it to the police station after a codefendant’s arrest?
The blue van in which the weapons were found was a stolen vehicle. Neither defendant nor his brother were the owners or lessees, and defendant was not a passenger in the vehicle when the weapons were seized. In Rakas v Illinois, 439 US 128, 134; 99 S Ct 421; 58 L Ed 2d 387 (1978), the defendants were passengers in a car which they neither owned nor leased, yet one which they were using with the owner’s permission. Nevertheless, the United States Supreme Court held the defendants lacked standing because they had no reasonable expectation of privacy in the place searched. In accord with Rakas are United States v Salvucci, 448 US 83; 100 S Ct 2547; 65 L Ed 2d 619 (1980), and Rawlings v Kentucky, 448 US 98; 100 S Ct 2556; 65 L Ed 2d 633 (1980). Since defendant’s interest in the van in the instant case was even less than that of the defendants in Rakas, et al, we conclude that defendant lacked standing to contest the search. Furthermore, the identical claim was made by defendant’s brother and was rejected in Kramer, supra, on grounds that the search was a permissible inventory search.
Did the trial court’s instructions on the crime of assault with intent to commit murder, to which no objection was made, constitute error?
Defendant challenges the jury instruction given on the crime of assault with intent to commit murder. Defendant claims that the instruction was deficient because it failed to state that only actual malice — a specific intent to kill — rather than implied malice — an intent to cause serious bodily harm or risk of death — is required. Defendant’s argument is flawed in three respects. First, the instructions were taken directly from the Michigan Criminal Jury Instructions, CJI 18:1:01, and included an instruction on specific intent, CJI 3:1:16. Second, the instruction on malice was in accord with existing law. People v Moncure, 94 Mich App 252, 256; 288 NW2d 675 (1979), vacated on other grounds 409 Mich 905; 295 NW2d 494 (1980). See CJI 16:3:01. Third, this Court has held that proof that a defendant intended to commit either first- or second-degree murder establishes the mental element of assault with intent to commit murder. People v Branner, 53 Mich App 541, 544-546; 220 NW2d 183 (1974), lv den 392 Mich 814 (1974), People v Eisenberg, 72 Mich App 106, 114-116; 249 NW2d 313 (1976), lv den 401 Mich 803 (1977). Thus, the instruction on malice did not constitute error.
Was sufficient evidence presented to establish the identity of defendant as one of the two individuals involved in the crimes charged?
Citing People v Davenport, 39 Mich App 252; 197 NW2d 521 (1972), defendant claims that the evidence linking him to the crimes charged was all circumstantial and as such was insufficient to connect him to the crimes charged. Because the two robbers wore ski masks and gloves during the robbery and the flight in the truck, the barmaid and hostage were unable to identify the individuals charged except to the extent that one was bigger than the other and that during the flight in the truck they called one another "Larry” and "Jackson”. Thus, all of the evidence linking the defendant to the offenses charged was circumstantial.
However, contrary to defendant’s assertion, the circumstantial evidence was overwhelming. Evidence adduced at trial established, inter alia, the following facts: (1) during the month prior to the robbery, the codefendant, Jeffrey Kramer, fre quently drove a copper-orange pickup truck to defendant’s home; (2) defendant and Jeffrey Kramer utilized the pickup truck on two occasions during the evening prior to the robbery; (3) the pickup truck which the two men abandoned and from which they fled on foot matched the copper-orange color pickup truck which Jeffrey Kramer was observed driving during the month prior to the robbery; (4) the pickup truck was abandoned just 2-1/2 to 2-3/4 miles from the house in which defendant resided with his girlfriend, Debora Cox; (5) the sawed-off shotgun found behind the abandoned pickup truck was the same gun which Larry Kramer had loaned to his brother-in-law and which was returned to Larry during Thanksgiving, 1977; (6) a shotgun found in the blue van at the airport was linked ballistically to the shootings at the Red Oak Bar and during the chase; (7) Jeffrey and Larry drove Larry’s girlfriend to the airport in the blue van; and (8) the blue van was a stolen vehicle.
Defendant argues that, taken in the light most favorable to the prosecution, such evidence does no more than show that defendant lived near the scene of the crime, had the opportunity to commit the crime, and subsequently assisted his brother in an effort to flee from the area, knowing that a crime had been committed. Counsel argues that because the evidence does not require a conclusion that defendant committed the crime (but only that someone, perhaps Jeffrey Kramer, committed the offense), under Davenport, the evidence is insufficient. There is presently a split in this Court over the rule to apply where a defendant’s participation in a crime, and ultimately a defendant’s guilt, is established by circumstantial evidence only. Davenport requires the prosecution to negate every reasonable hypothesis consistent with a defendant’s innocence. People v Edgar, 75 Mich App 467; 255 NW2d 648 (1977), rejects this view, holding that the prosecution need only present evidence, direct or circumstantial, establishing the elements of the crime beyond a reasonable doubt in the face of whatever contradictory evidence is produced by the defense.
The instant case is an excellent example of the legal consequences flowing from the distinction between the standard announced in Davenport and the standard of review in Edgar. In People v Orsie, 83 Mich App 42; 268 NW2d 278 (1978), this Court followed Edgar, and the Supreme Court denied leave to appeal. 408 Mich 857 (1980). This panel finds that the better reasoning, and the reasoning consistent with the majority view, was expressed in Edgar and further finds that under Edgar and Orsie sufficient evidence of defendant’s participation in the offenses charged was presented beyond a reasonable doubt.
Was sufficient evidence presented to establish that the defendant, rather than codefendant, Jeffrey Kramer, ñred the shotgun in the Red Oaks Bar, striking the police officer?
We disagree with defendant’s claim that, because the evidence did not establish which of the two brothers fired the shot striking Sergeant Beamish, defendant could not be convicted as an aider and abettor on the theory "that someone must have discharged the gun at Sergeant Beamish”. Carried to its logical conclusion, defendant’s claim would preclude convicting either brother. In People v Mann, 395 Mich 472, 477-478; 236 NW2d 509 (1975), this Court stated:
"In People v Palmer, 392 Mich 370, 378; 220 NW2d 393 (1974), we reaffirmed the rule that a person may be prosecuted for aiding and abetting without regard to the conviction or acquittal of the principal. '[Aiding and abetting] comprehends all words or deeds which may support, encourage or incite the commission of a crime.’ The conviction of the principal is not necessary to convict an accessory. What must be proven, however, is that the crime was committed by someone, and that the defendant either committed or aided and abetted the commission of that crime.”
Thus, whether or not defendant was the principal in the assault upon the officer is irrelevant so long as the evidence establishes that the defendant aided and abetted the assault.
While it is true that an aider and abettor of a specific intent crime, if not himself possessed of the specific intent, must be shown to know that the principal possessed the requisite intent, it is also true that intent is a question of fact which may be inferred from surrounding circumstances. In the instant case, the surrounding circumstances disclosed that both brothers carried loaded shotguns, both covered their faces with masks, a shot was fired at the bar, a hostage was taken to effect an escape, and numerous shots were exchanged with officers during the subsequent chase. These were facts from which the jury reasonably could conclude that each brother knew that the other possessed the intent, if necessary, to use the weapon and commit all acts, including murder (either first or second degree) if necessary, to accomplish the robbery. Additionally, we note that no objection was made to the instruction on aiding and abetting.
Did the introduction of evidence of three shotguns seized from a van which the codefendant was driving at the time of the codefendant’s arrest some two weeks after the robbery, kidnapping, and assault for which defendant was being tried during joint trial of defendant and his codefendant constitute error?
Four shotguns were found during the search of the blue van at the airport. Only one, a sawed-off shotgun, was tied ballistically to the robbery of the Red Oaks Bar. The remaining three shotguns were admitted in evidence over defendant’s objection. Defendant contends that this was error since their probative value was outweighed by their prejudicial effect, particularly because the prosecution thus was able to argue to the jury that, when arrested, the defendants were "armed to the teeth”, implying that defendants were men of bad character. We disagree. The identical argument was made by the codefendant in Kramer, supra, 759-760, and was rejected:
"Since the shotguns were similar to that allegedly held by the second robber, we can discern no abuse of discretion in their admission. Further, we do not think it is essential that a weapon be tied ballistically to a crime in order to be admissible. Since such weapons were fired on police officers during the escape, they might have been the ones that were used.
"We believe the trial court’s admission of three additional shotguns does not require reversal, even if it constituted error. The other circumstantial evidence in the case was very strong, and we are convinced beyond a reasonable doubt that the jury would have convicted the defendant without the erroneously admitted evidence. People v Norwood, 70 Mich App 53; 245 NW2d 170, lv den 397 Mich 884 (1976).”
Weapons found in an accused’s possession may be introduced into evidence without proof that they were the same weapons used by the accused in the crime, if the weapons found might have been used by the accused. People v Hall, 19 Mich App 95, 98; 172 NW2d 473 (1969), People v Rojem, 99 Mich App 452, 458-459; 297 NW2d 698 (1980). Where, as in the instant case, the evidence against a defendant is largely circumstantial, the probative value of the evidence is heightened. People v Howard, 391 Mich 597, 602-606; 218 NW2d 20 (1974), Hall, supra, 108 (Levin, J., concurring in part and dissenting in part). Although defendant was not in the van when it was seized and searched, defendant’s girlfriend testified that she was driven to the Detroit Metropolitan Airport in a blue van by Jeffrey and Larry Kramer and that when they arrived Larry went inside with her and was arrested by police officers.
Did the trial court err in denying defendant’s motion for a mistrial which was based on the statements of a police witness that other weapons were discovered in the van and that a gun taken from defendant when arrested was "loaded and ready to go”?
Officer Goodrich’s statement that the gun taken from defendant’s person was "loaded and ready to go” was unsolicited, and defendant’s objection thereto was immediately sustained. Standing alone, we do not find the statement to be prejudicial. The officer’s further reference to other weapons in the van was also unsolicited and unantici pated. The identical issue was considered in Kramer, supra, and was found not to constitute grounds for reversal. Our Court explained:
"The remark was no more than an unsolicited response to a legitimate question by the prosecutor concerning the location in the van of the three shotguns admitted as evidence. Further, the statement did not necessarily refer to weapons other than the three shotguns. It is equally possible that the jury interpreted Goodrich’s remark as referring to evidence of remaining shotguns already admitted.” Id., 757.
We find no abuse of discretion in the denial of defendant’s motion for a new trial.
Did the trial court err in permitting the prosecution to impeach one of its witnesses who failed to identify the defendants in court by allowing another witness to testify that the prosecution’s witness did identify defendants on a prior occasion at a lineup?
During trial, a prosecution witness testified that a few days prior to the armed robbery she saw two men in a pickup truck matching the description of the truck used in the incident. When asked by the prosecution to identify the two individuals, the witness stated that she did not recognize either person. Over objection, she then was permitted to testify that at two separate lineups held in October, 1978, she had identified the two individuals. Subsequently, a detective was allowed to testify that he had attended the lineups at which the prosecution witness identified the two brothers.
MRE 607(2)(C) permits the calling party to attack the credibility of its own witness if the witness’s testimony is contrary to that which the calling party had anticipated and was actually injurious to the calling party’s case. The record demonstrates that the prosecution genuinely was surprised when the witness failed to identify either brother. Contrary to defendant’s claim, the prosecutor had prepared his case, deposing the witness in the presence of defense counsel prior to trial. On that occasion, there was no indication that the witness could not recognize the defendants. When recalled to the stand, the witness did identify the two defendants and explained that she failed to identify them when first asked at trial because she "wasn’t sure that I had the proper time to identify anyone”. We find the explanation acceptable, particularly because on recall the witness did identify the defendants.
MRE 801(d)(1) provides additional grounds for the trial court’s allowance of the witness’s subsequent testimony identifying each defendant. Under MRE 801(d)(1), a prior statement of identification made by a witness after previously perceiving the defendant is not hearsay and is freely admissible in a case in chief, provided the witness testifies during trial and is subject to cross-examination by the opposing party. See People v Washington, 84 Mich App 750, 755-756; 270 NW2d 511 (1978), People v Prophet, 101 Mich App 618, 623; 300 NW2d 652 (1980).
Where the defendant requested separate trials, or, in the alternative, the empaneling of separate juries, each to consider the case of the individual defendants, and where each defendant argued that guilt should be attributable to the other, did the trial court err in refusing to permit separate trials or separate juries?
The identical argument was made on appeal by counsel in Kramer, supra, 753-754, and was rejected by this Court.
"The decision on a motion for separate trials is one left to the discretion of the trial court. MCL 768.5; MSA 28.1028, People v Wright (On Remand), 99 Mich App 801, 821; 298 NW2d 857 (1980). In People v Hurst, 396 Mich 1, 6-9; 238 NW2d 6 (1976), the Supreme Court held that separate trials are not a defendant’s right, but are advisable where the defendants’ separate defenses are antagonistic. To support the motion, a defendant must prove that a joint trial will infringe upon his 'substantial rights’. People v Wright, supra, citing People v Carroll, 396 Mich 408; 240 NW2d 722 (1976). In the instant case, counsel for codefendant Larry Kramer alleged that a refusal of separate trials would place the defendants in an antagonistic position. However, neither attorney nor defendant provided support for this allegation at trial. Absent any factual predicate for an affirmative showing of prejudice, we are unable to conclude that the trial court abused its discretion in denying defendant’s motion.”
A conclusionary statement of antagonistic defenses must be supported by an affidavit defining the inconsistencies between the defenses of the parties in order for this Court to find an abuse of discretion in not ordering separate trials. People v Smith, 73 Mich App 463; 252 NW2d 488 (1977), lv den 402 Mich 803 (1977). In People v Gunter, 76 Mich App 483, 489; 257 NW2d 133 (1977), this Court stated that upon moving for separate trials "defendants must clearly, affirmatively and fully show that substantial rights will be prejudiced by a joint trial”. Defendant failed to follow the requirements of Smith and Gunter.
Defendant argues that he is entitled to a separate trial because there was greater evidence linking Jeffrey Kramer to the pickup truck. In every joint trial, there will be some evidence more closely related to one defendant than the other. The question is whether the closer relationship is prejudicial. Though the truck was used mainly by Jeffrey, the testimony of Debora Cox clearly established that both defendants were in the truck shortly before the robbery, that when she went to sleep both defendants were at the house and the truck was in the yard, and that when she woke up both defendants were at the house but the truck was gone. Consequently, we find no prejudice. If anything, Jeffrey Kramer was the only one potentially prejudiced because Larry Kramer refused to join in presenting an alibi defense.
The standard for determining whether separate juries should be empaneled is identical to that for ruling on a motion for a separate trial. Kramer, supra, 755. There being no error in the trial court’s ruling on defendant’s motion for a separate trial, we find no error in its refusal to empanel separate juries.
Affirmed.
See Issue 4, infra.
For lists of cases following the Davenport rule and cases following the doctrine in Edgar, see People v Walker, 93 Mich App 189, 194-195, fns 1 and 2; 285 NW2d 812 (1979), and People v Williams, 94 Mich App 406, 415-416; 288 NW2d 638 (1979).
In his dissent opposing the introduction of evidence of a gun found two days after the crime, Judge (now Justice) Levin acknowledged that "Where the people’s case is based largely or entirely on circumstantial evidence * * * the probative value of the evidence will generally outweigh the danger of confusing the issues or prejudicing or misleading the jury”. | [
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Per Curiam.
The defendant was convicted by a Detroit Recorder’s Court jury of first-degree felony murder, MCL 750.316; MSA 28.548, and assault with intent to commit murder, MCL 750.83; MSA 28.278. He was sentenced to life for his conviction of first-degree felony murder and 15 to 20 years for his conviction of assault with intent to murder. The defendant appeals as of right pursuant to GCR 1963, 806.1, raising five claims of error, none of which require reversal.
Defendant first claims that the trial court incorrectly defined malice by including language concerning a "very high risk of death” in its instructions dealing with first-degree felony murder and assault with intent to commit murder. The defendant’s reliance on People v Milton, 81 Mich App 515; 265 NW2d 397 (1978), amended 403 Mich 821 (1978), is misplaced. Milton in no way purports to criticize or reject the "risk” language included in the definition of malice as an element of first-degree felony murder, second-degree (common-law) murder or assault with intent to murder. The issue in Milton was whether the court must specify in a first-degree premeditated murder case, when employing the "risk” language, that its application is limited to the lesser offense of second-degree murder. People v Johnson, 93 Mich App 667; 287 NW2d 311 (1979), People v Burgess, 96 Mich App 390; 292 NW2d 209 (1980). The Milton rule applies solely to proceedings wherein the defendant is charged with first-degree premeditated murder. It has no application to this case.
Secondly, defendant claims that the trial court failed to adequately instruct the jury that drunkenness or drug intoxication may be a defense to first-degree felony murder (armed robbery). We agree that the rule is firmly established that the jury may take into account the degree of drug or alcohol intoxication in determining whether the defendant had the specific intent in order to be guilty of the crime charged. People v Walker, 38 Mich 156, 158 (1878), People v Crittle, 390 Mich 367; 212 NW2d 196 (1973). Our review of the record reveals that the trial court did in fact give an intoxication instruction dealing with first-degree felony murder (armed robbery) and also dealing with the charges of assault with intent to murder and the lesser included offense of assault with intent to do great bodily harm. Further, during the latter charges the trial judge specifically reminded the jury that he had similarly instructed them earlier with regard to first-degree felony murder. There is no factual basis to support the claimed error.
Defendant claimed error with regard to instructions that the trial court was under the duty to instruct the jury sua sponte that it was the prosecution’s burden to negate every theory consistent with the defendant’s innocence. Until the standard jury instructions on circumstantial evidence are revised, this Court will be forced to address this continuing claim of error. See People v Corbett, 97 Mich App 438; 296 NW2d 64 (1980). Here, assuming solely for purposes of argument that the instruction that defendant contends should have been given accurately reflects the state of the law in this jurisdiction and further that this is a "pure circumstantial” evidence case, the trial court is not required to give such an instruction on circumstantial evidence sua sponte. People v Haney, 86 Mich App 311; 272 NW2d 640 (1978), People v Jackson, 100 Mich App 146, 156-157; 298 NW2d 694 (1980). We fail to discern any reversible error here.
Next, defendant claims that the prosecuting attorney committed error when he impeached the defendant with evidence of a prior conviction without first obtaining a court ruling justifying the admission of evidence of the conviction for purposes of impeachment prior to trial. Although the burden is on the prosecution to justify the admission of such evidence, People v Crawford, 83 Mich App 35; 268 NW2d 275 (1978), People v McCartney, 60 Mich App 620; 231 NW2d 472 (1975), there is no authority which requires that the prosecution bring a pretrial motion and obtain a ruling on the admissibility of evidence of the prior conviction if the prosecution intends to cross-examine the defendant about it. To that extent, the defendant is incorrect.
However, a review of the record reveals that the prosecution did propound a question suggesting that the defendant had a prior conviction which, in fact, did not exist. Where the prosecution suggests by its cross-examination that the defendant has prior convictions which do not in fact exist or misrepresents what the prior convictions were in fact for, error occurs in all but the most limited circumstances. People v DiPaolo, 366 Mich 394; 115 NW2d 78 (1962), People v Wright, 38 Mich App 427; 196 NW2d 839 (1972). We are convinced that the error here was unintentional. Only a close reading of defendant’s criminal record would have revealed that the conviction was a misdemeanor rather than a felony, as the prosecutor suggested.
Although the error was unintentional, the prejudice to the defendant must still be measured. Here, the trial judge forcefully instructed the jury that he had determined that the felony suggested by the prosecutor did not exist and to disregard the question in its entirety. These remarks should have instilled in the jurors’ minds that the defendant, in fact, had only one prior conviction. Accordingly, we fail to discern any reversible error.
The defendant’s final claim of reversible error has recently been decided by People v Vaughn, 409 Mich 463; 295 NW2d 354 (1980), even assuming arguendo that the verdicts were in fact inconsistent.
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T. M. Burns, J.
The factual posture of this case is accurately set forth in Judge Cynar’s dissenting opinion.
There may have been any number of reasons why plaintiff could not have worked following the accident. However, as long as his injuries from the accident were sufficient in themselves to preclude him from working, he is eligible for work-loss benefits. Absent evidence that plaintiffs heart attack will result in permanent unemployment, plaintiff is entitled to continued work-loss benefits under MCL 500.3107a; MSA 24.13107(1), inasmuch as it resulted in his becoming "temporarily unemployed * * * during the period of disability * * *”. The attempt by the dissent to distinguish this statute is not persuasive in view of this plain language.
The purpose of the no-fault act is to provide prompt recompense to automobile accident victims for their injuries. Liberty Mutual Ins Co v Allied Truck Equipment Co, 103 Mich App 33; 302 NW2d 588 (1981). Under the scheme proposed by defendant, an accident victim would be entitled to work-loss benefits only for those days which he actually would have worked. Presumably, for those days on which the victim was ill from causes unrelated to the accident, on which he would have been unable to work because of a scheduled, conflicting, personal commitment, or on which he would have been unable to work because of an uncooperative automobile battery on a February morning, work-loss benefits would be reduced. This, of course, would greatly complicate the Legislature’s simple plan for speedy payment of benefits.
The contract under which plaintiff was insured by defendant provided that he would be entitled to work-loss benefits if, because of an automobile accident, he was unable to earn his normal wages. An automobile accident has rendered plaintiff unable to earn his normal wages. As long as the injuries plaintiff sustained in the automobile accident are a sufficient cause of his inability to work, other, subsequent and independent injuries which result in temporary periods of unemployment do not make plaintiff ineligible to receive work-loss benefits.
Affirmed.
R. B. Burns, P.J., concurred. | [
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Allen, J.
Does the offense of malicious destruction of property, MCL 750.377a; MSA 28.609(1), require a finding of specific intent? The question raised is of first impression. On April 16, 1980, defendant was found guilty by a jury of malicious destruction of property and resisting or obstructing a police officer in the discharge of his duty, MCL 750.479; MSA 28.747. Sentenced to one year in jail, he appeals of right.
Defendant was charged with damaging an automobile belonging to David and Martha Simmer-man. Testimony established that at approximately 8:30 p.m. on October 17, 1979, defendant beat on the automobile with his hands and feet while it was parked in front of the Simmerman home. Approximately $350 worth of damage resulted.
Several witnesses testified that the defendant appeared intoxicated at the time of the offense, although no testimony was presented during trial regarding the quantity of alcohol consumed. At the preliminary examination, Howard VanValkenburgh testified that he had been with defendant from 1:30 p.m. until 8:30 p.m. on October 17, 1979, and that the two had consumed a substantial quantity of whiskey during that time.
A City of Howell police officer, responding to a call at 8:45 p.m. on October 17, 1979, asked the defendant for identification, told the defendant that he was under arrest, and attempted to place him in the patrol car. The officer said that defendant began fighting and kicked him in the thigh as defendant was being pulled into the patrol car. While in the car, the defendant used loud and vulgar language and spat on a police officer’s coat.
During trial, the defendant asked the court to instruct the jury that specific intent is an element of malicious destruction of property and that voluntary intoxication is a defense to that crime. The court refused, and defendant, on appeal, claims that the refusal to instruct the jury on voluntary intoxication constituted error requiring reversal.
The defendant was charged under MCL 750.377a; MSA 28.609(1), which provides:
"Any person who shall wilfully and maliciously destroy or injure the personal property of another, by any means not particularly mentioned or described in the preceding section, if the damage resulting from such injury shall exceed $100.00, shall be guilty of a felony. If the damage done shall be $100.00 or less, such person shall be guilty of a misdemeanor.”
If the statute requires a finding of specific intent, voluntary intoxication may be shown to negate that intent. People v Kelley, 21 Mich App 612; 176 NW2d 435 (1970). No Michigan case law has determined whether this statute in question contains a specific intent element. This Court therefore must determine whether a specific intent must be shown to sustain a conviction for malicious destruction of property.
Specific intent is a nebulous concept. In Roberts v People, 19 Mich 401, 414 (1870), the Supreme Court distinguished between general and specific intent, holding that:
"[W]hen a statute makes an offense to consist of an act combined with a particular intent, that intent is just as necessary to be proved as the act itself, and must be found by the jury, as matter of fact, before a conviction can be had.”
Specific intent has been held to be an element of statutory crimes that include an express requirement of intent. In People v Jones, 228 Mich 426; 200 NW 158 (1924), assault with intent to murder was observed to be a specific intent crime; in People v Berryhill, 8 Mich App 497; 154 NW2d 593 (1967), specific intent was found to be an element of assault with intent to do great bodily harm less than murder; and in People v Stram, 40 Mich App 249; 198 NW2d 753 (1972), assault with intent to rob being armed was recognized as requiring a showing of specific intent.
Specific intent has been held to be an element in some statutory crimes that do not state an intent element. In Kelley, supra, 619, this Court observed that convictions for crimes involving larceny, such as armed robbery and burglary, require a showing of specific intent because a larceny is not merely a wrongful taking, which would be a mere trespass, but is a wrongful taking with felonious intent.
The malicious destruction of property statute does not contain the word "intent” but does require that the conduct be "willful and malicious”. The Michigan Criminal Jury Instructions define these terms:
"The phrase 'wilfully and maliciously’ means that the defendant (1) committed the act, (2) while knowing it to be wrong, (3) without just cause or excuse, and (4) did it intentionally or (5) with a conscious disregard of known risks to the property of another.” CJI 32:1:01.
The commentary to the jury instructions states that there must be a willful act aimed at the property in question and an intent to do damage. CJI, Commentary, p 32-13.
The word "willfulness” has been called a "word of many meanings, depending upon the context in which it is used”. People v Cook, 89 Mich App 72, 85; 279 NW2d 579 (1979). This Court held that "willfully” in the joyriding statute, MCL 750.413; MSA 28.645, requires a showing of specific intent to take possession of a vehicle. People v Lerma, 66 Mich App 566, 571; 239 NW2d 424 (1976). In so doing, the Court recognized that "willfully” has been variously defined as an "evil intent”, a "bad purpose”, or a "guilty knowledge”. The Court gave two reasons for holding that "willfully” in the joyriding statute means specific intent. First, the Court cited one prior case, People v Limon, 4 Mich App 440; 145 NW2d 287 (1966), for the proposition that "willfully” is a separate and distinct element of joyriding, and it interpreted the separate element as something more than the mere physical act of driving away a vehicle without authority. Second, the Court recognized that joyriding is classified among the larceny statutes, which include a specific intent.
Like "willful”, "malice” is a term of various meanings, depending upon its context. In People v Tessmer, 171 Mich 522; 137 NW 214 (1912), the Supreme Court distinguished general malice from malice directed at a particular object. The general malice is that required for any criminal conduct, while a particular malice is that which is directed at an object.
While a Michigan appellate court has never determined whether "willful and malicious” in the malicious mischief statute should be interpreted to mean the broad general intent or a narrower intent, the Supreme Court did address the problem in the context of the now-repealed statute proscribing interference with the business of a railroad, 1877 PA 11, § 2; How Stat, § 9275, repealed by 1891 PA 23, which includes a willful and malicious element. In People v Petheram, 64 Mich 252; 31 NW 188 (1887), the Court distinguished the railroad statute from the common-law crime of malicious mischief, observing that the common-law crime requires that the malice be directed against the owner of the property but finding that the railroad statute requires a showing of only general malice. The Court found that the act of destroying railroad property was sufficient to furnish the presumption of malice. Id., 264. See also Tessmer, supra. Similarly, in People v Iehl, 100 Mich App 277, 280-281; 299 NW2d 46 (1980), this Court held that the statutory crime of willfully and maliciously killing a dog owned by another required no showing of malice directed at a particular object.
Unlike the statutory crimes discussed in Petheram and lehl, the malicious destruction of property statute under which this defendant was charged is an affirmance of the common-law crime of malicious mischief. We therefore interpret the statute consistently with the common-law crime and find that in order to convict under the statute a specific intent to damage property or to injure its owner should be found.
Even if the malicious destruction of property statute were not an embodiment of the common-law crime, specific intent would be a necessary element. This Court has observed that such an intent is required to commit the crime of larceny, for without that element, larceny would be a mere trespass. Kelley, supra, 621. Similarly, if a defendant lacking the intent to damage property injures that property, he has committed only a trespass. People v Severance, 125 Mich 556; 84 NW 1089 (1901).
We find that in order to commit the crime of malicious destruction of. property, a defendant must have the intent to injure or destroy the property. If a defendant voluntarily becomes so intoxicated that he in fact does not have the requisite intent, he cannot be convicted of the crime. People v Crittle, 390 Mich 367, 374; 212 NW2d 196 (1973). As defendant produced some testimony that would warrant giving defendant’s requested instruction on intoxication, failure to give that instruction was error. People v Hansma, 84 Mich App 138, 145-147; 269 NW2d 504 (1978).
Defendant also argues that the trial court erred in refusing to admit the preliminary examination testimony of Howard VanValkenburgh, who had testified that he observed defendant drink a quantity of whiskey on the afternoon and evening of the crime. As it is necessary to remand this case for a new trial for other reasons, we decline to address this issue.
Reversed and remanded for a new trial.
On appeal, the parties dispute whether defendant exercised due diligence in attempting to produce VanValkenburgh, thus making him an unavailable witness under MRE 804(a)(5). We believe that a substantial question exists as to whether the defense, as well as the prosecution, must demonstrate due diligence before a witness will be considered "unavailable”. As neither party addressed this issue in the trial court or on appeal, it is not properly before this Court.
We observe, however, that VanValkenburgh’s preliminary examination testimony established that his contact with the defendant was reasonably contemporaneous with the crime and tended to show the defendant’s state of mind at the time of the act. The witness therefore may have qualified as a res gestae witness. People v Phillips, 61 Mich App 138, 148; 232 NW2d 333 (1975). If the defendant desires the production of the witness at the new trial, he may wish to move for endorsement on the information pursuant to MCL 767.40; MSA 28.980. | [
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] |
V. J. Brennan, P.J.
Defendant appeals from a circuit court order granting plaintiffs petition for entry of judgment for workers’ disability compensation benefits pursuant to MCL 418.863; MSA 17.237(863).
Essential to our resolution of the issue is an understanding of the factual and procedural background by which this case comes before, this Court.
On November 17, 1976, plaintiff was awarded workers’ compensation benefits by a referee of the Bureau of Workers’ Disability Compensation. Thereafter, defendant appealed the referee’s decision to the Workers’ Compensation Appeal Board. Concurrently, pursuant to MCL 418.862; MSA 17.237(862), defendant commenced paying 70% of the benefits ordered by the referee during the pendency of the appeal process.
On September 28, 1979, the appeal board affirmed the referee’s award of benefits. Defendant subsequently filed an application for leave to appeal with this Court, contending that plaintiff was not entitled to receive benefits since he had voluntarily left the State of Michigan and concurrently discontinued his favored work with defendant. Defendant’s application for leave to appeal was denied by this Court on July 1, 1980. Defendant then filed a delayed application for leave to appeal with the Michigan Supreme Court.
On November 13, 1979, while defendant’s application for leave to appeal was pending in this Court, plaintiff filed a petition for entry of judgment pursuant to MCL 418.863; MSA 17.237(863) in Wayne County Circuit Court.
On November 30, 1979, the circuit judge granted plaintiff’s petition for entry of judgment. It is from this entry of judgment that defendant now appeals. The judgment awarded plaintiff full weekly benefits (plus 5% interest) from the date on which compensation was ordered to be paid until the date of the referee’s decision and 30% of weekly benefits (plus 5% interest) from the date of the referee’s decision until the date of the judgment for a total of $22,021.64. Of this amount, $17,965.08 was for weekly compensation benefits and interest due prior to the referee’s decision of November 17, 1976.
The only issue presently before this Court is the question of the propriety of the circuit court’s entry of judgment pursuant to MCL 418.863; MSA 17.237(863) while the defendant’s application for leave to appeal the award on substantive grounds was pending before an appellate court. This issue appears to be one of first impression in Michigan. It concerns the appropriate application of §§ 862 and 863 of the Workers’ Disability Compensation Act. Section 862 states in pertinent part:
"Sec. 862. A claim for review filed pursuant to sections 859 or 861 shall not operate as a stay of payment. to the claimant of 70% of the weekly benefit required by the terms of the hearing referee’s award. Payment shall commence as of the date of the hearing referee’s award and shall continue until final determination of the appeal or for a shorter period if specified in the award. Benefits accruing prior to the referee’s award shall be withheld until final determination of the appeal. * * * If the award is affirmed by a final determination, the carrier shall pay all compensation which has become due under the provisions of the award, less any compensation already paid.”
Defendant has fully complied with § 862 by paying plaintiff 70% of the benefits ordered by the referee as of the date of the referee’s award. However, plaintiff claims that the other 30%, plus the amount of benefits accruing prior to the date of the referee’s award, may be obtained by entry of judgment pursuant to § 863, as was done by the circuit court in this case. Section 863 provides:
"Sec. 863. Any party may present a certified copy of an order of a hearing referee, the director or the board in any compensation proceeding to the circuit court of the circuit in which the injury occurred, or to the circuit court of the county of Ingham if the injury was sustained outside this state. The court, after 7 days’ notice to the opposite party or parties, shall render judgment in accordance therewith unless proof of payment is made. The judgment shall have the same effect as though rendered in an action tried and determined in the court and shall be entered and docketed with like effect.”
Defendant contends that §863 is inapplicable to the case at bar and that the circuit court’s entry of judgment pursuant to §863 was therefore improper. We agree. Defendant’s position is supported by the language of the act as well as by cases which have interpreted and applied these sections.
Section 862 provides that an appeal by the employer or compensation carrier shall not prevent the claimant from receiving 70% of the weekly benefits required by the referee’s award and that "[b]enefits accruing prior to the referee’s award shall be withheld until final determination of the appeal”. It is only "[i]f the award is affirmed by a final determination”, that the carrier is required to pay "all compensation which has become due under the provisions of the award * * It therefore appears that § 862 provides that a compensation carrier who is in the process of appealing an award is only required to pay 70% of the benefits accruing after the date of the referee’s award.
This interpretation of § 862 is supported by the principal Michigan case dealing with this provision, McAvoy v H B Sherman Co, 401 Mich 419; 258 NW2d 414 (1977). In that case, the Michigan Supreme Court held that § 862 did not deny employers and carriers procedural due process because "[t]he worker/claimant does not receive the entire award; only that percentage of the award which statistically reflects the ratio of ultimate affirmances”. Id., 439. It is for this reason, the Court noted, that § 862 ultimately encourages all parties to expedite appeals.
"Employers and carriers certainly will seek prompt appellate relief in cases where they believe unjustified benefits are awarded. Claimants will also seek prompt appellate finalization in most cases because they will wish to obtain the 30% benefits held pending final disposition. In the meantime, the 70% benefits initially awarded will sustain the claimants during this sometimes lengthy process and remove any unfair bargain ing leverage employers or carriers exercise during the interim.” Id., 445.
If a plaintiff were allowed to circumvent § 862 by obtaining a judgment for 100% of the referee’s award, as plaintiff did in this case, the protection of the employer’s due process rights as well as the incentives to expedite appeals would be eliminated. In effect, § 862 would be rendered meaningless since it could be circumvented completely by the claimant.
Plaintiff argues, however, that § 863 should allow for the entry of judgment on the whole compensation award in a situation where the employer’s appeal is wholly specious and without merit. In so arguing, plaintiff would have this Court consider the merits of defendant’s appeal of the referee’s award. However, it is clear that the substantive nature of the award is a matter to be considered through the proper appellate process rather than in the context of an entry of judgment on the compensation award. The Worker’s Disability Compensation Act provides for an orderly appellate process from the referee to the appeal board and subsequently to the Court of Appeals and the Supreme Court, without interference by the circuit court. Plaintiff’s interpretation, by contrast, would involve the circuit courts in the determination of the merits of an employer’s appeal and would allow circuit courts to circumvent totally the 70% rule established in § 862, neither of which would be in accord with the apparent legislative intent of the act.
This Court has emphasized that resolution of all disputes relating to workers’ compensation is vested exclusively in the Bureau of Workers’ Disability Compensation and that remedies for failure to follow statutorily established procedures are to be determined by the bureau, rather than the circuit court. Maglaughlin v Liberty Mutual, 82 Mich App 708, 711; 267 NW2d 160 (1978), lv den 403 Mich 851 (1978), St Paul Fire & Marine Ins Co v Littky, 60 Mich App 375, 378; 230 NW2d 440 (1975). For example, if a defendant employer fails to pay 70% of the plaintiffs benefits pending an administrative appeal, it may result in the dismissal of the appeal by the Workers’ Compensation Appeal Board; but, a plaintiff should not begin suit in circuit court for failure to pay benefits. Maglaughlin, supra, 711. In light of the exclusivity of the bureau’s control over remedies and appeals dealing with compensation awards, it is clear that plaintiffs interpretation would constitute an unintended deviation from the statutorily established procedure. Rather than to involve the circuit court in determining the merits of an appeal and entering judgment for the entire compensation award where an appeal is considered frivolous, the Supreme Court has emphasized that the act provides for a check against specious appeals in § 862. The 70% "no-stay” provision itself has as one of its ancillary goals, "to discourage marginal or frivolous appeals”. McAvoy, supra, 443.
The proper application of § 863 allows for the protection of a claimant whose final compensation award has not been satisfied by a defendant. Section 863 was meant "to protect the interests of persons with workmen’s compensation awards by providing for prompt enforcement through the judicial machinery of the circuit courts * * Wyrybkowski v Cobra Pre-Hung Doors, Inc, 66 Mich App 555, 558; 239 NW2d 660 (1976). It therefore provides a remedy in situations where awards are not involved in the appellate process and subject to the 70% payment provision of § 862. For examples of cases applying § 863, see, Simm v City of Dearborn, 54 Mich App 263; 220 NW2d 768 (1974), lv den 392 Mich 818 (1974), Guerrero v Brighton Athletic Ass% 81 Mich App 58; 264 NW2d 119 (1978), LeBlond v All Right Auto Parts, Inc, 81 Mich App 509; 265 NW2d 394 (1978).
Therefore, we conclude that the trial court erred in granting plaintiffs petition for entry of judgment pursuant to MCL 418.863; MSA 17.237(863).
Reversed. | [
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Stone, J.
The bill of complaint in this cause was filed to obtain an injunction and for an accounting. The defendant had for many years prior to July 8, 1911, been engaged in the business of teaming and general excavating work in the city of Grand Rapids on a large scale, owning and employing in such work from 50 to 60 horses and a large number of wagons and other necessary equipment. This business had latterly been conducted under the name of the Reliable Transfer Company, a corporation, whose capital stock was owned by defendant. Having met with an accident resulting in the loss of his eyesight, he entered into negotiations with the complainants, Matthias Lehnen, the father, and the other three complainants, his sons, for the sale of said property and business. The negotiations resulted in the following agreement, viz.:
“This agreement, made the 8th day of July, 1911, between Otis H. Ryan, of the city of Grand Rapids, county of Kent, and State of Michigan, party of the first part, and Matthias Lehnen, Peter Lehnen, Jacob Lehnen and Joseph Lehnen, all of the same place, parties of the second part, witnesseth:
“(1) That said party of the first part, for and in consideration of the sum of twenty-two thousand, five hundred and seventy-seven and fifty one-hundredths dollars ($22,577.50), lawful money of the United States, to be paid as hereinafter mentioned, has contracted and agreed to sell to the said parties of the second part, and the said parties of the second part have agreed to purchase, the barn building located at 53 Ellsworth avenue, in the city of Grand Rapids, also the hotel, furniture and fixtures as contained in an inventory attached hereto, marked Exhibit B, and all the capital stock- of the Reliable Transfer Company, a corporation of Michigan, which said capital stock is owned by said party of the first part, an inventory of its property being hereto annexed and marked Exhibit A.
“(2) The said parties of the second part may forthwith take possession of said property and they do hereby agree to pay the said purchase price as follows: Two hundred and eight dollars and thirty-three cents ($208.33) on the fifteenth day of August, 1911, with interest on said principal sum at the rate of six per cent, per annum, and a like sum of two hundred and eight dollars and thirty-three cents on the fifteenth day of each and every month thereafter with like interest on so much of said purchase price as remains unpaid each month at six per cent, per annum until the whole of said purchase price is fully paid. It is also agreed that at the end of each month, so long as said purchase price or any part thereof shall remain unpaid, an examination of the books and a trial balance of the business done by said parties of the second part, shall be taken by the bookkeeper, hereinafter mentioned, and after deducting from the gross receipts all wages, repairs, cost of replacing or recovering any of said property and all other expenses incident to said business of said parties of the second part, they shall, in addition to the above monthly payments, pay to said party of the first part, upon such purchase price, ninety per cent, of the net profits of the business each and every month whenever any of said month’s said net profits shall exceed the sum of two hundred and eight dollars and thirty-three cents, provided, however, that said parties of the second part shall pay at least twenty-five hundred dollars of said purchase price each and every year until the same is fully paid. And it is further provided, that only one hundred dollars and interest shall be paid in the months of January, February, March and April, at the option of said second parties, and the said parties of the second part, for themselves, their heirs, executors and administrators covenant and agree to pay said party of the first part, his representatives or assigns, the said several sums of money as they severally become due with interest thereon as above provided, without any deductions, taxes or assessments whatever. And they further agree to and with said party of the first part to pay and discharge within the time prescribed by law, all taxes and assessments either regular or special which may be levied by the United States, State of Michigan, county of Kent, or the city of Grand Rapids, or by any lawful authority, on said property during the time the said purchase price remains unpaid. And said parties of the second part further covenant and agree to and with the said party of the first part to keep said building and property insured for not less than ten thousand dollars ($10,000), with insurer or insurers to be approved by said party of the first part. Loss if any to be paid to said party of the first part as his interest may appear and the policy or policies of insurance shall remain in the possession of the said party of the first part. And the said parties of the second part further covenant and agree to and with said party of the first part to keep the said stock and property, or a stock equal in amount and value to the said stock and property, at all times until the full amount of said purchase price and interest thereon has been fully paid. Or if any of the stock or property is sold its selling price is to be paid to the said party of the first part and to be applied on the amount of this contract, or at the option of said party of the first part, other stock or equipment equal in value is to be purchased, and which will be subject to the terms of this contract, but none of said stock or property shall be sold by said parties of the second part, so long as said purchase price remains unpaid, without the written consent of said parties of the first part.
“(8) Said parties of the second part covenant and agree to retain and hire William Ervine as bookkeeper at the sum of twenty dollars ($20.00) per month, whose duty it is to strike a trial balance each month on the books of said parties of the second part and to keep the book of said parties of the second part in balance and to give to the said party of the first part a copy of such trial balance so struck as aforesaid. Said Ervine shall be discharged for cause only, and in the event of such discharge, said party of the first part shall have the right to choose his successor. And it is further covenanted and agreed between the parties to these presents that if default be made in the payment of taxes and assessments, or any other duties as shall by lawful authority be imposed upon the said property above described, the said party of the first part, his heirs, executors, administrators and assigns may pay and discharge such duties, taxes and assessments and the moneys thus paid are to be a lien on the said property added to the amount secured by this contract and be payable forthwith with interest thereon at the rate of 6 per cent, per annum. It is further agreed by the parties to these presents that if the said parties of the second part fail to get the building and property insured, as aforesaid, against loss and damage by fire and in the amount and manner provided by the said party of the first part, his heirs, administrators, executors or assigns, that then the said party of the first part may effect such insurance and pay the premium or premiums for effecting the same and said premium or premiums so paid shall be a lien upon the said property added to the account secured by this contract and be payable forthwith with interest at the rate of 6 per cent, per annum.
“ (4) And it is further agreed by the parties to this contract that until the said parties of the second part have paid one-half (%) of the face value of this contract, or eleven thousand and two hundred and eighty-eight dollars and seventy-five cents ($11,288.75), with interest, each of the said parties of the second part shall not draw in excess of twelve dollars ($12.00) a week as salary, provided and upon condition, however, that each of the parties of the second part is to put in full time working for the interests and in behalf of the business transferred and sold by these presents, and in the event of their not working as aforesaid, a proportionate amount based upon the period of such idleness is to be deducted from the amount that the one so laying off is to receive except when such item is occasioned or caused by sickness.
“(5) It is hereby understood and agreed that so long as said purchase price and interest thereon remains unpaid, title of said property shall be and remain in the said party of the first part, and if default is made in said payments due hereunder, or in any of them at the time and in the manner the same are made payable, the said party of the first part is hereby authorized to sell at public auction, after the like notice as is required by law for constable sales, the goods, chattels and personal property hereinbefore mentioned or so much thereof as may be necessary-to satisfy the said debt, interest and reasonable expenses and to retain the same out of the proceeds of such sale, the overplus or residue, if any, to belong to and to be returned to the said parties of the second part, and. the said party of the first part, his heirs, executors, administrators and-assigns is hereby authorized at any time, when he shall be himself unsecured or if the said parties of the second part shall sell, assign or dispose of, or attempt to sell, assign, or dispose of the whole or any part of the said goods, chattels and personal property, hereinbefore mentioned, or remove or attempt to remove the whole or any part thereof from said premises without the consent in writing of the party of the first part, then and from thenceforth it shall and may be lawful for the said party of the first part, his executors, administrators or assigns, or his or their authorized agents, to enter upon the said premises of the said parties of the second part, or any place or places where the said goods, chattels and personal property or any part thereof may be, and take possession thereof and the same retain in some convenient place at the risk and expense of said parties of the second part until the said sum of money shall become due as aforesaid and then dispose of the same in the manner above provided.
“In witness whereof, the parties thereto have hereunto set their hands and seals the day and year as above written.”
This agreement was duly signed and acknowledged by the parties.
The bill of complaint states that, to secure the faithful performance of said contract, complainant Matthias Lehnen and wife, on the said 8th day of July, 1911, made and executed to the defendant a certain real estate mortgage in the sum of $2,000, covering certain property in the city of Grand Rapids; and that the other complainants, on the same day, made and executed to said defendant a certain chattel mortgage in the sum of $2,120, covering eight horses and certain larries, wagons, and other property in their possession; that on said day the complainants took possession of said property and business specified in said contract and assumed the active management and operation thereof, and continued the operation and management thereof, until the close of the 6th day of November, 1911; that during that time they performed each and every act, deed, and thing in said contract covenanted to be performed by them; that on November 7, 1911, the said defendant, with the aid of a deputy sheriff, entered upon said premises and took possession of the property and business specified in said contract, together with the cash on hand, book accounts, bills receivable, and other papers and things relating and pertaining to said property and business; and that ever since said last-named date the defendant had been continuously in active charge and control of said property and business; that he had assumed and exercised the active, exclusive control and management of said property and business specified in said contract; that from the 7th day of November, 1911, down to the time of filing the bill of complaint, which was November 15, 1911, said defendant had written, notified, and commanded the various debtors of complainants not to pay their accounts to complainants, but had commanded the said debtors to pay the said accounts to the defendant; that in the meantime said defendant had collected large sums of money due and payable to complainants, which said defendant had neglected and refused to turn over to complainants or account for; that said defendant asserted and pretended that he had taken charge of the property and business mentioned in said contract for the reason that he was unsecure in the several payments as they became due and payable according to the terms of said contract, whereas complainants claim the contrary to be true, they alleging that the defendant was amply secured in the payment of the several payments mentioned in said contract as they became due and payable according to the terms thereof; that said property and business was purchased at the true and actual value of said property, as indicated by said inventory accompanying the contract; that said defendant since taking possession of the property and business, as aforesaid, had published notices to the effect that on November 15, 1911 (the day of the filing of said bill of complaint), he would sell, or cause to be sold, all of the property, goods, chattels, and effects listed, specified, and mentioned in the said inventory attached to said contract of sale; that complainants had repeatedly, but in vain, requested the defendant to turn over to them the management, operation, and control of said property and business, together with the books of account, accounts payable and receivable, and all moneys and other things in any wise pertaining to the management of said business under said contract, and render a true and perfect account of all moneys and properties taken by the said defendant from their possession as aforesaid, together with moneys collected by the defendant; that they had kept during all the time they had possession of said property a true and correct account of all business transacted ; that the bookkeeper employed in said business had rendered a true and correct statement of the business carried on and the condition thereof, and said defendant had full access to the books of account from time to time, as provided in said contract, and had at all times been in possession of knowledge of the conduct, nature, and extent of the business so transacted, and the condition and management thereof; that at the time said defendant took possession of said prop erty and business complainants had outstanding bills due them amounting to upwards of $2,000 upon the books of said company, which said defendant had taken possession of; that he had collected a large portion thereof and converted the same to his own use; that said defendant had in an arbitrary manner taken possession of other property than that specified in said contract belonging to complainants, and on demand refused to turn the same over to them; that he still held the said real estate mortgage and the collateral chattel mortgage above referred to.
The bill prays for an injunction restraining the defendant from selling and disposing of said property, and also prays for a decree holding that the said defendant was unlawfully in possession of said property and business, and that he render and come to a true and perfect accounting as to all moneys received and collected by him belonging to complainants, and to give them free access to the books and to the other papers relating and pertaining to said property and business, and there was a prayer for preliminary injunction.
The answer of defendant admits the making of said agreement and the collateral mortgages above referred to. The answer also states that defendant had learned that the title to the real estate covered by said mortgage given by Matthias Lehnen and wife was incumbered for taxes, and had been sold and deeded to the city of Grand Rapids for certain delinquent taxes; that the property covered by the said collateral chattel mortgage was not worth to exceed $750; and that the same was also incumbered by a previous lien. Especially the said answer denied that, during the time complainants had possession and control of said property and business, they did and performed every act, deed, and thing in said contract and mortgage covenanted and agreed by them to be done and per formed, and that they had made default as follows:
(а) With reference to said collateral mortgages as above referred to.
(б) That said complainants failed and refused to maintain insurance on said property mentioned in the contract and mortgage, or to pay the insurance companies the premiums due upon the policies of insurance. That said insurance companies threatened to, and were about to, cancel said policies, and for his own protection defendant was obliged to, and did, pay said insurance companies premiums to the amount of $125 in order to keep said policies in force.
(c) That said complainants had failed and refused to keep the stock and property described in said contract and mortgage, or a stock in equal amount and value to said stock and property, but, on the contrary, allowed said wagons, harness, and other property to be and remain out of repair, and had mistreated and overworked said horses and did not provide them with proper food, to such extent that four of them had died, and the remainder of them became so poor and run down and unfit for work that the humane agent of said county had ordered that 13 of said horses should not be worked until such time as they were in proper condition. That said complainants did not replace the four horses that died with other horses of equal value, but did bring two old horses of less value than any of said horses that died. That, when defendant attempted to take possession, complainants removed said two horses and now have the same in their possession, and that by reason of complainants’ ill treatment and want of care of said stock and property the same had depreciated in value to the amount of $6,500 and upwards, and that the said property in its then present condition would not sell for, and was not worth in excess of, $16,000.
(d) That complainants did not make the payments due on said contract and mortgage as they had covenanted and agreed to do, but were in default. That complainants had made payments on such contract and mortgage as follows: July 1, 1911, $50; August 18, 1911, $350.03; September 28, 1911, $319.03; October 1, 1911, $252 — making a total of $971.06. That they did not make the payments due defendant under the terms of said contract, but fraudulently and deceitfully attempted to deprive him of the same by keeping a portion of the earnings of said business off their books, collecting the same and appropriating them to their sole use, and by improperly keeping their books so that the same did not represent the amount of business which was being conducted, all for the purpose of depriving defendant of a portion of the earnings due him under said contract. And that without cause they had discharged the bookkeeper mentioned in said contract, and had employed another who would not inform defendant of the condition of the affairs of said business.
(e) That complainants failed and neglected to put in their full time in working for the interests of, and in behalf of, said business; but, on the contrary, certain of said complainants spent a large portion of the time while they were in possession of said property in idleness, and in drinking and carousing in saloons and other places.
The answer admits that defendant took possession of the property as alleged, but avers that he did not take possession of all the cash on hand, or accounts, bills receivable, and other papers and things, but only such portions thereof as were found in the office, and claims that certain cash, accounts, and papers belonging to said business had not come into defendant’s possession, but had been concealed by complainants; that complainants had made default in said contract which justified defendant in taking possession of said property, business, and accounts. The answer states that defendant took possession of said property and business for the reasons that defendant was unsecured in the several payments as they became due and payable according to the terms of the contract. He admits the publication of notice of sale as alleged, and claims that he had a legal right to sell. The answer claims the benefit of a demurrer upon the following grounds:
(а) That complainants have not stated such a case in their bill as is cognizable in a court of equity.
(б) There is no equity on the face of said bill, in that complainants have not offered to pay the purchase price of said property in the possession of defendant, or to secure the payment of the same.
(c) That complainants have a complete and adequate remedy at law.
A preliminary injunction had been issued upon the filing of the bill restraining the sale of the property. Upon the coming in of the answer a motion was made to dissolve. It was ordered dissolved upon defendant giving a bond in the penal sum of $3,000, conditioned that said defendant should promptly comply with, pay, and discharge any decree that might be rendered against him. Such bond was given, and the property was again advertised for sale; was sold and bidden in by defendant for the sum of $15,000. No part of the proceeds of the sale was offered or tendered to the complainants, but they had been notified by defendant that upon payment of $15,000 the property would be restored to them.
The case, being at issue, was heard upon evidence taken in open court. The court found, among other things, in and by its decree, that the whole contract did not fall due at the time defendant seized possession of the said goods and chattels; that the sale made by defendant through seizure was premature and unlawful, and without right under the terms of the agreement; that the money on hand, taken by defendant at the time of the seizure, belonged to complainants ; that the bills receivable seized, and the accounts collected, were the property of complainants; that nothing had ever become due on the chattel mortgage or real estate mortgage given by-complainants to defendant as additional security; and that the several debts contracted by complainants in conducting the business had not been paid. The decree ordered the defendant to account for the money which he took at the time of the seizure, and also for the amount of money collected on the bills receivable for work done by complainants, and that, out of this money, debts owing at the time of the seizure by complainants and incurred while doing the business be paid by defendant out of the moneys so seized and collected and, if not sufficient to pay in full, that the same be prorated. The court found that the defendant, at the time of the seizure, took in cash, or its equivalent, $345.41, and that the defendant had collected since the seizure the sum of $493.30. It also found the value of the property taken by defendant, and not restored to complainants, covered by the chattel mortgages as additional security, to be a certain sum therein specified, and provided for certain offsets, and determined the amount that should be paid by defendant to complainants. The defendant has appealed.
A large amount of testimony was taken in the case, as appears by the lengthy record. The testimony on some points in issue was very conflicting.
The instrument above set forth was a contract, in the nature of a chattel mortgage. It was prepared, according to the evidence, by the attorneys for the defendant, and there is no claim that the defendant did not fully understand its terms. A perusal of the Instrument will disclose some peculiarities. It provides, in addition to the monthly payments, that at the end of each month, so long as the purchase price or any part thereof remained unpaid, a trial balance of the business done by said complainants should be taken by the bookkeeper of complainants mentioned in the contract,—
“and after deducting from the gross receipts all wages, repairs, cost of replacing or recovering any of said property, and other expenses incident to the business of said parties of the second part, they shall, in addition to the above monthly payments, pay to said party of the first part, upon such purchase price, 90 per cent, of the net profits of the business each and every month, whenever any of said month’s said net profits shall exceed the sum of $208.33; provided, however, that said parties of the second part shall pay at least $2,500 of said purchase price each and every year until the same is fully paid.”
It was provided, also, as follows:
“And the said parties of the second part further covenant and agree to and with said party of the first part to keep said stock and property, or a stock equal in amount and value to the said stock and property, at all times until the full amount of said purchase price and interest thereon has been fully paid.”
The last clause of said instrument is also significant. An examination of this clause of the contract shows ■that there is no provision authorizing the defendant ■to declare the whole sum secured by the contract due, in case of default in payment of any installment or interest. In case of default he was authorized to sell such property, or so much thereof as might be necessary to satisfy the said debt, interest, and expenses, and to retain the same out of the proceeds of such sale; the overplus or residue, if any, to belong to and be returned to the complainants. In case defendant was unsecure, or in case of attempt to sell, etc., any part of the property by complainants, defendant might take possession of the property, “and the same retain in some convenient place at the risk and expense of said parties of the second part until the said sum of money shall become due as aforesaid and then dispose of the same in the manner above provided.”
From defendant’s answer it appears that there had been paid upon the contract at least the sum of $971.06. At the time of the seizure defendant found and took in cash, or its equivalent, substantially $350. This sum applied upon the contract would have more than paid any installment then due, and the interest on the contract. This being so, the right of the defendant to proceed to advertise the property for sale and to sell it is not apparent.
We find no clause in the contract authorizing the defendant to take possession of the bills receivable of the complainants. There was a good deal of evidence, pro and con, upon the hearing as to whether the defendant was really unsecured. The trial court evidently found that, as matter of fact, he was not unsecured.
There was also a sharp conflict in the evidence as to whether or not the property had deteriorated in value while in the possession of the complainants and whether they had properly cared for the same. The trial court also evidently found in favor of the complainants upon this question. Whether this finding was correct or not is not controlling here, for in any event the defendant had no right to proceed to sell the entire property, and hold the proceeds thereof.
Referring to the premiums due on insurance, we are satisfied that defendant did not pay these amounts until after he had seized the property. The policies had not been canceled.
Considerable testimony was taken upon the subject of the keeping of the books, and it is quite evident that they were not perfectly kept, but we have looked in vain for any evidence to show that the gross receipts were such that there was any net profit of the business that would entitle the defendant to the 90 per cent, thereof referred to in the contract. It does appear that the complainants contracted for, and were owing a large sum of money for, feed and supplies purchased for the care of the horses and stock while they were in charge of the same. The proofs are left in such condition that we cannot determine what amount, if any, might rightfully have been claimed by the defendant under this clause of the contract. The defendant himself testified that at the time he seized the property he made no claim that complainants were in default as to the’ 90 per cent, clause of the contract.
The business was a going one, and it had been purchased by the complainants under a contract in which they agreed to pay a large sum therefor, and the evidence shows that the good will of the business was a large item in the contemplation of the parties in making the contract. This business of the complainants, so far as they are concerned, was not only interrupted, but was destroyed, by the seizure and sale of the property by the defendant. If defendant had no right to seize and proceed to sell the property at the time he did, and if the threatened sale was premature, these facts, we think, gave the right to complainants to file an injunction bill. The court, having obtained jurisdiction, had the right to proceed to an accounting between the parties, and to make the orders with reference to the injunction. It made such orders, by first enjoining the sale, then permitting it to proceed upon the giving of a bond’ by defendant. See Hall v. Nester, 122 Mich. 141 (80 N. W. 982), where similar action was had.
Whether complainants were entitled in the case to recover damages for the breaking up of their business is not necessary for us to consider, because the trial court awarded no sum in that regard, and the complainants have not appealed.
Counsel for defendant, in their brief, claim that the injunction proceedings were void because the bond provided for, by section 502, 1 Comp. Laws (4 How. Stat. [2d Ed.] §12020), was not furnished. We do not agree with counsel upon this point. The statute contemplates the filing of a bond in case a suit or personal action at law is pending. We do not understand that the seizing of this property by virtue of the contract, in the nature of a chattel mortgage, was such a suit at law as to make the bond necessary.
It is next claimed by defendant’s counsel that, under the demurrer clause of the answer, the court should have dismissed the case on the ground that there was an adequate remedy at law. We think the court had jurisdiction for the reasons already stated.
Counsel for defendant also urge that defendant at least should have been given credit for certain sums of money found to be due complainants on the Century Fuel Company account, and other like accounts. We cannot agree with this contention. The defendant would not be entitled to those sums, or to any sum, unless the record showed, which it did not, that the net profits had been such as to give him the percentage provided for in the contract. We think that the equities of the case are with the complainants.
The sum awarded to the complainants by the court below, under the circumstances of the case, is a small one, and one of which we think the defendant cannot here justly complain; and, as we have said, the complainants are in no position to claim a larger sum.
A careful examination of the record has led us to the conclusion that the decree of the court below should be affirmed, with costs to the complainants. It is so ordered.
Brooke, C. J., and McAlvay, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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Bird, J.
Plaintiff, a farmer living near Marine City, sold his crop of beans by sample, m.the fall of 1912, to the Michigan Farmers’ Elevator Company in Detroit, on the basis of $2 for 71 pounds. On November 19, 1912, he shipped them in 204 bags to the purchaser in Detroit, via the Rapid Railway and defendant’s line. The car arrived in defendant’s yards in Detroit on November 21st, and the consignee was notified the same day. The consignee paid the freight and ordered the car to be delivered to its elevator, which was situated on defendant’s line. Defendant neglected to deliver the car until the afternoon of November 30th. Upon inspection the beans were found to be heated and musty, and the consignee refused to accept them. The plaintiff was notified, and he at once went to Detroit and conferred with defendant, and through some arrangement (which is not disclosed) the beans were sold by the defendant for $244.80. After deducting the freight charges, it left a balance of $220.52, which it still retains. The plaintiff’s action was in tort, counting upon the defendant’s failure to observe its common-law duty to transport the beans within a reasonable time. He was awarded a verdict of $738.14. The only question made by the briefs for our consideration is whether the trial court gave to the jury a proper measure of damages.
The trial court in substance instructed the jury that, to entitle plaintiff to recover, they must first find that the delivery of the beans to the consignee had been unreasonably delayed by defendant, and that such delay was the proximate cause of the damage claimed, and in elaboration of the latter instruction he instructed them that, in order to entitle plaintiff to recover, they must find that the beans spoiled after a reasonable time had elapsed for the transportation of them; and that, if they spoiled during such reasonable time, the plaintiff was not entitled to recover. They were further instructed that, if they found that plaintiff was entitled to recover, he would be entitled to recover the contract price at Detroit at the time they should have been delivered.
Counsel are in substantial accord upon the proposition that, whether the action be tort or contract, the measure of damages for delay in transporting goods is the difference between the market value of the property at the time and place at which the delivery should have been made, and the same value when delivery was actually made, but their disagreement arises out of what elements enter into the market value. Defendant insists that, in arriving at market value, the only thing which may be considered is the difference in price for the same quality of goods, whereas the plaintiff contends that not only the difference in price of the goods may be taken into consideration, but also any deterioration in quality may be considered in arriving at the market value.
The general rule has been stated as follows:
"Where there is a delay for which the carrier is liable, the measure of damages is the difference between the market value of the property at the time and place at which the delivery should have been made, and the same value when delivery was actually made, whether the difference ill value was the result of a decline in the market, or of an injury suffered by the goods in consequence of the delayed delivery.” 5 Am. & Eng. Enc. of Law (2d Ed.), p. '384,
The case of Weston v. Railway Co., 54 Me. 376 (92 Am. Dec. 552), quotes with approval the following:
“ ‘Then comes the other question, whether he is entitled to recover the difference between the value of the goods to him, if they had been delivered in proper time, and their value at the time when they were actually delivered. I am of the opinion that the consignee is entitled to recover such difference in value.’ ‘It is admitted,’ remarks Byles, J., in the same case, ‘that deterioration in quality is to be taken in account in estimating the damage the plaintiff has sustained; it is admitted also that loss or diminution in the quantity is to be taken into account.’ ”
See, also, Nettles v. Railroad Co., 7 Rich. Law Rep. (S. C.) 190, (62 Am. Dec. 409).
We think the foregoing is a proper statement of the general rule, and that the trial court was in no error in including the question of the deterioration of the property as an element of market value, as the proofs tended to show that the deterioration of the beans was caused after a reasonable time had elapsed for their transportation.
The further contention is made tnat the beans were in an abnormal condition; that they contained 23 per cent, of moisture, whereas normal beans contain only 17 per cent.; that the rule of liability would apply only to normal beans; and that, before it could be charged with loss or damage to abnormal beans, it should have notice of their condition at the time they were tendered for shipment, the same as any other perishable property. The proofs do not disclose that the beans were in any such condition as would justify a classification of them with perishable property. A witness who appeared to be qualified to speak of such matters testified that beans with 23 per cent, of moisture would not take damage in a closed car under four or five days, and defendant’s own proofs showed that the usual time for transporting a car from Marine City to Detroit was two or three days. Furthermore, there is no claim that plaintiff had any knowledge that the beans would be likely to spoil in a closed car after four or five days. If neither had any reason to believe they would spoil after four or five days in a closed car, but in fact they did spoil by reason of the neglect of defendant, it should bear the loss. Illinois, etc., R. Co. v. McClellan, 54 Ill. 58.
Counsel relies upon an English case to enforce his argument, on the question of notice. In that case a quantity of rags were consigned. The delivery was delayed two weeks beyond the usual time for delivery. The rags were damp when offered for shipment, and as a result of the delay they heated and rotted. The court held that no recovery could be had because the carrier had no notice that the rags were damp and liable to spoil. Baldwin & Co. v. Railway Co., Law Reports 9 Q.B.582. The difference between that case and the one under consideration lies in the fact that proof was made in this case that the injury to the beans occurred after a reasonable time had elapsed for their transportation. If this fact had not been made to appear, a like result would doubtless have been reached in this case.
Inasmuch as the defendant retains the money for Which the beans were actually sold, and for the further reason that the contract price was the only evidence of market price at the place of delivery, we think the measure of damages directed by the trial court was correct.
The judgment will be affirmed.
Brooke, C. J., and McAlvay, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred. | [
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Brooke, C. J.
The learned trial judge who heard this cause filed a written opinion therein as follows:
“These parties were partners in business from August 1, 1908, until the dissolution of the partnership subsequent to the filing of the bill in this case on March 8, 1913.
“During all of the time the defendant was the general manager of the business. The complainant at no time took any part in the business management, although he was open and ready for advice and assistance when called upon, and at times gave advice in matters' in and about the business. It is undisputed that complainant’s salary for a short time after August 1, 1908, to January 1, 1909, was $15 per week, and that during the year 1910 the complainant was entitled to a salary of $100 per month.
“Defendant drew a salary from January 1, 1910, until the dissolution of the partnership, at the rate of $100 per month, which the defendant claims he is entitled to. The complainant contends that from and after January 1, 1911, the defendant was not entitled to any salary at any amount.
“The business, while not a large one, has been a prosperous business for the amount invested, and on dissolution has repaid the amount advanced, with good additions. This fact is not a controlling fact in the case, but it is a circumstance which may be fairly considered in disposing of the whole question.
“The law applicable to the case, so far as the compensation of partners is concerned, is undisputed and plain. No partner in a partnership is entitled to compensation, unless there is a special agreement between the partners authorizing such compensation, or unless the facts and circumstances are such that such an agreement may be fairly inferred, and this rule of law is the law of this case.
“On the other hand, where it clearly appears that one partner has performed substantially all of the labor of managing and carrying on the partnership, such circumstance affords an equitable basis and claim for compensation. This is not controlling, and does not modify the rule of law above stated, but it is a circumstance to be considered in adjusting the rights of the parties.
“By the agreement of both parties the defendant was entitled to some compensation as the manager of the business up until January 1, 1910. According to the testimony, the services 'rendered by him were such as to equitably entitle him to a reasonably fair compensation.
“I have carefully gone over all of the evidence in the case and weighed and considered the same, together with the attendant circumstances, as established by the testimony, and the reasonable and fair inferences to be drawn therefrom, and have reached the conclusion that the defendant is entitled to the $100 per month until the time of the dissolution of the partnership.
“A strong circumstance in the case is the fact that compensation was fixed at $100 per month, which would leave the burden of proof upon the complainant to prove that that fixing of salary had been modified or changed. I do not believe that the greater weight of the testimony so shows.
“There is much conflict in the testimony, and many circumstances are brought in tending to increase such conflict. Each of the parties have the reputation of being high class, honorable, truthful business^ men, and I believe them to be so, and believe that their disagreement as to the transaction rests in a misunderstanding of terms and different recollections of the same transactions.
“A decree should be entered in accordance with this opinion, but without costs.”
We have read the record, which is short, with care, and have reached the conclusion that the trial court properly determined the single issue presented. The case at bar is one peculiarly within that class where, upon a disputed question of fact, the conclusions reached by the trial court should not be disturbed, unless plainly erroneous, because of the fact that he had an opportunity of seeing and hearing the witnesses upon the stand and of noting their manner as the testimony was introduced.
We have not overlooked the strenuous contention made by counsel for appellant that the burden of proof resting upon complainant was fairly borne by him, but are still constrained to hold that the decree entered in the court below was just.
It is therefore affirmed.
McAlvay, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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Per Curiam.
On February 4, 1915, an opinion was filed in this court holding the respondents guilty of contempt in failing to literally comply with the order of this court, which commanded them to put into effect certain rates fixed by the relators. It was, however, held that respondents, having acted in good faith and on the advice of competent and reputable counsel, might purge themselves of such contempt if, within five days after service upon them of notice of the filing of that opinion, they did comply literally with the order of the court. Such service was made on February 6, 1915. Immediately after such service negotiations were entered into between the respective parties, in which the attorney general participated, in an effort to compose the matters in dispute. These negotiations seem to have been carried on to February 17th, upon which date proof of service was filed in this court. On the day following, the respondents filed with the railroad commission a tariff known as G. F. D. No. 775a, and by its terms made it effective on February 19, 1915. This tariff we understand to be in the exact terms of the railroad commission order, the failure to file which constituted the basis of the finding of this court that respondents were in contempt.
Relators now move the court for the imposition of a penalty upon respondents, alleging that they in fact have not, by their acts, purged themselves, for the following reasons:
“(1) Because respondents did not, within five days from the service of notice of the filing of said opinion, comply literally with the mandate of this court.
“(2) Because respondents have wilfully continued to be in contempt of this court by wilfully refusing to obey the order of this court, in that they insist on charging the extra 50 cents per thousand feet, and rebate the same, if at all, upon a showing that the manufactured'product of the logs shipped, in had been shipped out over its line, and in that they refused to transport logs in car load lots from points on the Onaway & Nofth Michigan Railroad Company consigned to Alpena upon any other tariff than the joint tariff, which is higher than the combined local tariff.”
With reference to the first reason, we think it fairly appears from the papers on file that the delay between the 11th of February, when the rate should have been filed, and the 18th, when it was filed, is excusable, by reason of the negotiations between the parties.
The second contention of relators again raises the question of the construction of the following paragraph contained in the order of the railroad commission, which was put into effect on February 19, 1915:
“Above rates to apply when the manufactured product is reshipped via the Detroit & Mackinac Railway Company. And when not to be so reshipped, the railway company will collect in addition to the above rates fifty (50) cents per thousand feet. But if later reshipment is made over the Detroit & Mackinac Railway, the company will refund to such shipper the fifty (50) cents per thousand feet collected.”
It is shown by relators in this application that the respondents construe this clause as permitting them to charge in all instances the extra 50 cents per thousand feet and to rebate the same only when it is shown that the manufactured product is reshipped via the respondent railway company’s lines, and this is urged by relators as a reason why a penalty should be inflicted.
The construction given to this clause- of the order by the respondents was urged upon the court in the original contempt proceeding, and we there held that their contention was untenable; this for the reason that they were plainly in contempt in failing to comply with the order of this court by putting into effect the orders of the railroad commission as they were directed by this court to do. Having obeyed the order of the court by filing the rate fixed by the commission, we are of opinion that their contention with reference to its construction may fairly receive consideration.
A careful reading of the clause in question will serve to demonstrate its ambiguity. The last sentence of the clause, “But if later reshipment is made over the Detroit & Mackinac Railway, the company will refund to such shipper the fifty (50) cents per thousand feet collected,” indicates very clearly that, in some instances at least, it was contemplated by the commission that the higher rate should be charged and collected and the extra 50 cents refunded only after reshipment over respondent railway company’s lines had been made. It would not seem reasonable to suppose that the commission intended one rule to apply to one shipper and another to another shipper; and such a result would be of doubtful legality even if intended. These views áre based wholly upon the language of the clause in question, and are not predicated upon the contention of respondents that to compel them to carry, in the first instance, all logs at the lower rate, collecting the extra 50 cents only after they could make proof that the product had been reshipped over their line, would entail upon them unnecessary hardship and loss. Without determining that the construction -given to the clause by the respondents is correct, we are satisfied that it- is so far justified as to warrant us in withholding the infliction of a penalty upon relators’ theory that, acting under such construction, respondents still continue in contempt.
With reference to the claim that respondents are in contempt by reason of the joint rate insisted upon by them for transportation of logs in car load lots from points on the Onaway & North Michigan Railroad consigned to Alpena, we think it sufficient to say that this question was not before us in the main case, and is one which is properly referable to the railroad commission for adjustment.
Practically coincident with the filing of the motion by relators for the imposition of the penalty, respondents filed a motion for a modification of the opinion filed in the original contempt proceedings and for further directions. Respondents asked that the opinion be modified by holding:
(1) That the railroad company has a right to collect the 50 cents addition to the rates in the first instance, subject to the obligation to refund on all logs the manufactured product of which is shipped out on the railroad. (2) That the rates fixed by the commission did not apply to the narrow gauge branch, formerly known as the Au Sable & Northwestern Railroad. (3) That the rates fixed by the commission did not apply to or modify the joint through rates of the Onaway & North Michigan Railway Company and the Detroit & Mackinac Railway Company, as fixed by the joint tariff of September 3, 1912.
Touching the first of these contentions, nothing need be added to what has hereinbefore been said. The second and third are matters which should be, and we understand now have been, presented to the railroad commission for action.
Both motions are denied, but without costs. | [
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Kuhn, J.
The facts in this case were sufficiently stated in the opinion of this court when the case was here before, reported in 176 Michigan, page 278 (142 N. W. 582). On a retrial, the jury rendered a verdict in favor of the plaintiff in the sum of $3,000. Judgment being duly rendered thereupon, the case is again brought here by writ of error.
On this trial the plaintiff introduced testimony showing that on the night of the accident, March 9, 1910, she went to the bedside of her husband at the hospital in Greenville, Mich., and remained with him there approximately five weeks, during which time she assisted in caring for and nursing him. Her testimony further showed that since leaving the hospital she had been compelled to care for him occasionally up to the time of the trial. She testified that her services while at the hospital were worth $2 a day. With reference to this service, the court, in charging as to the measure of damages, said to the jury:
“There has also been evidence of services performed by the plaintiff in nursing her husband after his injury. If she is entitled to recover in this case, and you find that she has performed such services, you should allow her what the evidence shows such services to be reasonably worth.”
The statute under which this action is brought provides that:
“Every wife, child, parent, guardian, husband, or other person, who shall be injured in person or property, or means of support or otherwise, by any intoxicated person, or by reason of the intoxication of any person, or by reason of the selling, giving or furnishing any spirituous, intoxicating, fermented, or malt liquors, to any person, shall have a right of action in his or her own name,” etc. Section 5398, 2 Comp. Laws; 2 How. Stat. (2d Ed.) § 5074.
Counsel for appellee contends that the charge of the court was justified by the opinion of this court in Spencer v. Johnson, supra, in which case Mr. Justice Brooke, speaking for the court, said:
“Evidence was admitted of the value of plaintiff’s services in assisting to nurse Spencer while he was in the hospital. This testimony was admissible under the authority of Thomas v. Dansby, 74 Mich. 398 (41 N. W. 1088).”
And later:
“The value of plaintiff’s services in nursing her husband was a proper element to be considered by the jury.”
Counsel for appellants, in their briefs, have in a well-prepared argument sought to demonstrate that it was not the intent of this court by this opinion to hold that the wife can recover the full value of her services in nursing her husband as a substantive part of her damages, and that the value of the wife’s services in nursing should be treated in the same way as the earnings of the husband and the doctor’s bill, and that the court meant that the evidence with reference to the nursing was admissible only as bearing upon the length of time the plaintiff might be deprived of her customary support.
We cannot, however, agree with this contention of counsel, as it was the opinion of the court when the case was here before — and the language of the opinion, we believe, so holds — that by virtue of the statute above quoted, the wife is entitled, in an action of this kind, to recover for the value of her services in nursing such an amount as the jury would find they were reasonably worth. It is clear that she was compelled to do labor which she would not otherwise have been compelled to do, and in our opinion the legislature, in using the word “otherwise” in the statute, intended to provide compensation for this very kind of service. In the case of Thomas v. Dansby, supra, this court said:
“The additional care in nursing the plaintiff was compelled to bestow upon her husband by reason of the injury is one of the elements of damages which she is entitled to recover.”
In the case of Radley v. Seider, 99 Mich. 481, 433 (58 N. W. 366), it was held that the expression “or otherwise” in the statute was broad enough to permit the wife to recover for injury to her feelings. Friend v. Dunks, 37 Mich. 25; McNetton v. Herb, 158 Mich. 525, 529 (123 N. W. 17).
In support of a motion for a new trial, it was shown by affidavits that the case was submitted to the jury under charge of the court in the afternoon of January 29, 1914, and that after the jury had retired to the jury room in charge of an officer, at about the hour of 10 o’clock in the evening of that day, one of the jurors became seriously ill, and by order of the court was removed by the officer in charge of the jury to a room called the circuit judge’s room, where there was a couch. He remained there for several hours, separate from the other jurors, and was visited by a physician, who attended him in the presence of the judge. After midnight the juror was again returned to the jury room, where the other jurors were, and remained there about two hours. He was then again taken by the officer to the judge’s room, where he remained apart from the other members of the jury until about an hour before the jury was taken to breakfast, on the morning of the 30th of January, and while the other jurors were at breakfast he was locked up in the jury room. It is urged that by reason of this separation the trial judge should have granted a new trial, because the defendants in this case had the right to have every member of the jury participate in the deliberation and the discussion of the facts and circumstances of the case, and that as the juror in question was separate and apart from the other jurors several hours during the night, they did not have the benefit of his participation in the discussion and argument which took place during that time; also that they are entitled to have 12 jurors deliberate' upon the case who are in a physical con dition to perform every duty as a juror. The facts with reference to the separation of the jurors were shown to the court by affidavits of the juror who was ill, other members of the jury, the officer in charge, the physician, and one of the counsel for defendants.
It is the universal rule that the verdict of the jury cannot be impeached by the affidavits of jurors showing misconduct in the jury room. In re Merriman’s Appeal, 108 Mich. 454, 463 (66 N. W. 372), holds that as to the question whether any influence is exerted by one of the jurors unduly upon his fellows, or whether his conduct indicates bias, public policy forbids the proof of such claim by the affidavits of fellow jurors, and that the same rule extends with equal force to facts known only to the jurors, which occur during the trial, whether they occur in or out of the jury room. Wixom v. Bixby, 127 Mich. 479 (86 N. W. 1001); City of Battle Creek v. Haak, 139 Mich. 514, 527 (102 N. W. 1005); People v. Swift, 172 Mich. 473, 491 (138 N. W. 662). It is not stated in the affidavits, nor claimed in the motion or otherwise, that any of the jurors were subjected to improper influence. It must be admitted, however, that the situation here presented is not without some difficulty.
The general rule with reference to the separation of jurors after the submission of a case is thus stated in 17 Am. & Eng. Enc. of Law (2d Ed.), pp. 1227, 1228:
“It has been held that after the submission of the cause to the jury, the jurors should not be permitted to separate without the consent of the parties. In some cases; however, it is considered proper to allow a separation during the deliberation; and if the counsel do not object to the order of court to that effect, consent to the order will be implied. Though it is cause for a new trial if the separation is such as to furnish a ready opportunity for communication with other persons, a new trial will not be granted if it appears that there is no probability of prejudice. That the statute requires the jurors to be kept together by the officer until agreement or discharge has been held not to necessitate a new trial in case of their separation, unless there is a showing of prejudice.”
The same authority, page 1251, says:
“The court may, in its discretion, allow proper medicine and medical attendance 'to be furnished to the juror. That the sick juror is separated from the others does not affect the validity of the proceedings .if he is not tampered with; and that a physician was with the juror was held to be immaterial, where the other jurors were in an adjoining room with the door open. It is proper for the court to put a juror in charge of a sworn officer to enable him to consult a physician, and the court may provide for the comfort of the sick juror by allowing him to lie down during the remainder of the proceedings.”
In 2 Thompson on Trials (1st Ed.), p. 1906, it is said:
“From the foregoing, it follows that the mere fact of the separation of the jury pending a civil trial, or the trial of a misdemeanor, in some jurisdictions without reference to the nature of the case, especially where the separation consists of the temporary absence of a single juror, unless there are other circumstances of misconduct or abuse, will be no ground for a new trial. But in other jurisdictions, the opposing rule, applied for the most part in capital cases, obtains, that such a separation creates a presumption against the integrity of the verdict, and will be ground for a new trial, unless it affirmatively appear that the jurors were not thereby subjected to any improper influence. The State fails to do this, when it does not account for all the period of his separation from his fellows, if it was at a time and place where he might have been improperly approached.”
An examination of the authorities generally indicates that in order to warrant the granting of a new trial under such circumstances, it must be shown that the separation was prejudicial, or that the facts of the separation were such that a presumption would arise that there was prejudice, in that the juror might have been improperly approached. City of New Albany v. McCulloch, 127 Ind. 500 (26 N. E. 1074); Edward Thompson Co. v. Gunderson, 10 S. D. 42 (71 N. W. 764); Nichols v. Nichols, 136 Mass. 256; People v. Buchanan, 145 N. Y. 1 (39 N. E. 846); Waller v. People, 209 Ill. 284 (70 N. E. 681); People v. Bonney, 19 Cal. 426; Stout v. State, 76 Md. 317 (25 Atl. 299).
The facts here presented do not show that the juror was subjected to improper influence, and we are of the opinion that they do not raise any presumption that he was. During the entire time of separation he was in charge of a sworn officer of the court, and in fact during the first separation, when the physician was present, the trial judge was also present.
There is force, however, in the contention of counsel that the litigant is entitled to the participation of all the jurors in the deliberations of the jury; and as soon as it became apparent that it was necessary to separate one of the jurors from the others because of physical indisposition, it unquestionably would have been a proper course to instruct the jury that during the time of such separation further discussion of the case should be dispensed with. However, we are not satisfied that the failure to give this instruction would warrant us in saying as a matter of law that a new trial must necessarily be granted. The trial judge, upon a motion for a new trial, found:
“The mere fact that because of sickness one of the jurors was temporarily separated from the jury during their deliberations did not operate to the defendants’ prejudice.”
With this we are inclined to agree, and therefore refuse to reverse the case on this ground.
Error is assigned because of improper argument of counsel for plaintiff. In his closing argument to the jury, he said:
“These men that go into that kind of business unfurl the black flag; they go into that kind of business saying that, ‘We prefer the dollar to the life of the human being; we prefer the dollar to the feelings of the wife and mother; we prefer the dollar to the poverty and penury it causes.’ ”
It does not appear that this language was used with reference to persons engaged in the liquor business generally, or to those who are conducting that business in compliance with the law. Under plaintiff’s theory and the proofs of this case, these defendants were violators of the law, and it must be said that the language used referred to these men when violating the law. Admitting that the language was somewhat intemperate, when the attention of the court was called to it he said:
“I think, Mr. Hawley, that statement should not be taken. I will instruct the jury not to consider it.”
If it can be said that this argument is improper we are of the opinion that the instruction of the court then and there given corrected it.
The following also appears in the record:
“Mr. Bunting: I desire an exception to the statement of Mr. Hawley that this woman has a sober man for a son, and she is entitled to a sober example to the son she gave birth to.”
The record does not disclose in what connection this argument was used, nor does it appear that when it was made the court was asked for a ruling upon the language and a request made to give instructions with reference thereto to the jury. Unless a ruling is requested of or made by the trial court, an assignment of error based upon an exception to improper argument will not be reviewed. See Pierson v. Railroad Co., 149 Mich. 167, 172 (112 N. W. 923); Formiller v. Railway, 164 Mich. 653, 661 (130 N. W. 347); Meade v. Railway, 165 Mich. 489, 493 (130 N. W. 1114); People v. Sartori, 168 Mich. 308, 317 (134 N. W. 200); Crane v. Ross, 168 Mich. 623, 632 (135 N. W. 83); People v. Danenberg, 176 Mich. 337 (142 N. W. 347); Marx & Son v. King, 177 Mich. 662, 667 (144 N. W. 553); Eberts v. Sugar Co., 182 Mich. 449 (148 N. W. 810).
A reference of counsel to the suffering of plaintiff’s husband was immediately and properly corrected by the court’s saying:
“I have no doubt but counsel meant all right, but I don’t want any misunderstanding in regard to this matter, and the exception is well taken, and counsel will try and avoid any reference to suffering, because the jury cannot consider that, and I will tell you more about it when I get to considering my final instructions.”
We have examined the other assignments of error, and are satisfied that no prejudicial error was committed by the court with reference thereto.
The judgment is affirmed.
Brooke, C. J., and McAlvay, Stone; Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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] |
Kuhn, J.
The defendant, who is a practicing attorney in the city of Detroit, in the year 1908 occasionally bought and sold stock through Cameron Currie & Co., a firm of brokers, whose business methods have been reviewed and passed upon by this court in the recent case of Austin v. Hayden, 171 Mich. 38 (137 N. W. 317). This firm of brokers were customers of the plaintiff bank, and for some years up to the date of their failure maintained with it a general deposit and checking account. On the 10th day of July, 1908, Mr. Miller gave an order to Cameron Currie & Co. to purchase for his account 100 shares of United States Steel common stock, but did not pay the brokers firm any money at that time. Mr. Miller, being advised by the firm that they had purchased the stock pursuant to this order, on the 15th day of July paid them $500, to be applied on the purchase price of the stock, which was $4,012.50. On that day Mr. Miller saw Mr. Case, who was a member of the brokers firm, and told him that he proposed borrowing the money at the Michigan Savings Bank to pay the balance on the stock, and asked him whether he would carry the transaction for a few days and have the certificate made out in his name, to be transferred on the books of the steel corporation, to which it is claimed Mr. Case agreed, and upon the 17th of July, 1908, at about 1 o’clock in the afternoon, Mr. Miller delivered to Mr. Case a check which read as follows:
“No. 400. Detroit, Mich., 7/17/1908.
“Michigan Savings Bank of Detroit:
“Pay to the order of Cameron Currie & Co. $3,526.37, three thousand five hundred twenty-six 37/100 dollars. Guy A. Miller.”
Written in red ink across the face of the check was “Payment stopped.” Indorsed on the face of the check was the following:
“Protested July 18, 1908, for nonpayment. James S. Park, Notary Public, Wayne Co., Mich.”
Indorsed on the back of the check was this:
“Pay to the order of the People’s State Bank, Detroit, Mich. Cameron Currie & Co.”
When he presented the check, Mr. Miller asked Mr. Case when the certificate made out in his name would be along, and Mr. Case replied that it had been ordered and would probably be there on the morning of the 18th of July, or certainly on the 20th. His check was deposited by Cameron Currie & Co. with the plaintiff bank during banking hours on the afternoon of July 17th. At about 8:30 o’clock on the morning of July 18th a receiver was appointed for and took possession of the affairs of Cameron Currie & Co. Mr. Miller, having learned that morning of the failure of the brokerage firm, upon inquiry at their office concerning the check he had given the day before, was informed that it had been deposited at the People’s State Bank. He thereupon went to the bank before it was open for business, and saw Mr. Lawson, who was the vice president of the bank, and told him of the circumstances under which he had given the check, and demanded its return to him. Mr. Lawson told him that the check had been cashed, and refused to surrender it to Mr. Miller, and Mr. Miller thereupon went to the Michigan Savings Bank and stopped payment on the check. An action in assumpsit was thereupon brought upon the check by the plaintiff, and the plea herein is the general issue, with notice that the check was given to the payee in payment for 100 shares of United States Steel Company stock; that the check was delivered to payee with instructions to use the same in full payment for said stock, and with the further instruction to secure a certificate for such stock and deliver the same to defendant; that such stock certificate was not procured by said payee and has not been delivered to defendant; that the failure to so procure and deliver said stock certificate, together with the taking of said check, constituted a fraud as between defendant and payee; that, at the time the check was indorsed by the payee to the plaintiff, payee was insolvent; that plaintiff at that time knew payee was insolvent, and had knowledge of the facts constituting a defense as between defendant and payee; that the plaintiff parted with no value whatever on the receipt of said check, and had knowledge or notice of such facts as to make its acceptance of the check a bad-faith and not a good-faith acceptance.
At the conclusion of the evidence the trial judge, reading the provisions of section 54 of the negotiable instruments law of this State (Act No. 265, Pub. Acts 1905, 2 How. Stat. [2d Ed.] §2725), charged the jury that the check is complete and regular upon its face; that the bank became a holder of the check before it became overdue; that there was no evidence that it had been previously dishonored; that the bank took it in good faith; that at the time it was negotiated with the bank it had no notice of any infirmity in the instrument or defect in the title of the person negotiating it; but that there was no affirmative evidence that the bank parted with value or gave any consideration for the check, and upon that ground the jury was directed to render its verdict for the defendant. . Judgment being entered thereon, the plaintiff brings the case here by writ of error.
The trial court found, and so instructed the jury, that, in taking the check under the circumstances under which it was taken, a fraud was perpetrated by Cameron Currie & Co. upon Mr. Miller, and that therefore the title to the check was defective. It is contended by appellant that this instruction to the jury was not warranted because there is no evidence of any infirmity or defect in the check in suit as between the defendant and Cameron Currie & Co.
Section 57 of the negotiable instruments law provides as follows :
“The title of a person who negotiates an instrument is defective within the meaning of this act when he obtained the instrument, or any signature thereto, by fraud, duress, or force and fear, or other unlawful means, or for an illegal consideration, or when he negotiates it in breach of faith, or under such circumstances as -amount to a fraud.”
It conclusively appears in this case that Cameron Currie & Co. assumed to act as agents for Mr. Miller in buying the 100 shares of steel common stock, for which they were to be paid a commission; and also that they fraudulently stated to him that the stock had been ordered transferred to his name on the books of the steel corporation, whereas in fact it was not so transferred; and also that, at the time the check was delivered by them to the bank, they were insolvent, and had taken proceedings looking to the appointment of a receiver, the bill of complaint upon which the receiver was appointed having been signed and sworn to on the 17th day of July. It appears from the opinion of this court in Austin v. Hayden, supra, that they were hopelessly insolvent as far back as July, 1907, and that Hayden, Stone & Co. were held to be parties to the fraud of Cameron Currie & Co. in their dealings with their customers after June 23, 1908. We are therefore of the opinion that the trial judge was right in his conclusion that the transaction between Cameron Currie & Co. and Mr. Miller was a fraudulent one, and that the title to the check in them, by reason thereof, was defective.
On the trial of this cause, the plaintiff first introduced the check in evidence, and thereupon rested. The defendant thereupon proved the fraud of Cameron Currie & Co. in obtaining the check. By virtue of section 61 of the negotiable instruments law, the burden thereupon rested upon the plaintiff to prove that it acquired the title as a holder in due course, and it became incumbent upon it to show affirmatively that as a holder in due course, under the conditions enumerated in section 54 of said negotiable instruments law, it took the check in good faith and for value. Thompson v. Village of Mecosta, 127 Mich. 522 (86 N. W. 1044); Merchants’ National Bank v. Wadsworth, 166 Mich. 528, 531 (131 N. W. 1108).
On the 17th day of July, Cameron Currie & Co. made four separate deposits in the plaintiff bank, and the aggregate deposits of that day amounted to $75,968.78. In accordance with the bank’s business methods, the aggregate amount of the items deposited, as shown by the deposit slips when received by the teller of the bank, was credited by him in the passbook of the customer, on the top of the first leaf of which book was printed the following:
“Notice. — Checks on this bank will be credited conditionally. If not found good at the close of business they will be charged back to depositors, and the latter notified of the fact. Checks on other city banks will be carried over for presentation through the clearing house on the following day. This bank, in receiving check or draft on deposit or for collection, acts only as your agent, and, beyond carefulness in- selecting-agents at other points and in forwarding to them, assumes no responsibility. Should returns sent by collecting agents for said item be dishonored, the amount will be charged to account and the draft delivered to customers.”
It also appears that at the close of the business on July 16th the brokerage firm had a credit balance of $175.97, and from the books it appears that on the 17th of July checks of Cameron Currie & Co. drawn against their account were paid amounting to $74,963.11, leaving a balance to the credit of the firm on the books of the bank at the close of business on that day of $1,181.67. There is no question that in the instant case, in accordance with the terms of the contract entered into between the bank and the brokerage concern, checks were credited conditionally, and, if they were not found good at the close of business, they would be charged back to the depositor.
It seems to be a general rule that when checks or other commercial paper are deposited in a bank indorsed “for collection,” or where there is a definite-understanding that such is the purpose of the parties at the time of the deposit, the title to the paper remains in the depositor. See note to Fayette National Bank v. Summers, 105 Va. 689 (54 S. E. 862, 7 L. R. A. [N. S.] 694; 5 Cyc. p. 493. And the mere fact that the depositor is allowed to check against the credit does not change the import of the transaction, so as to preclude the bank from charging back the amount of credit if the check deposited is not paid. The bank may, as a matter of favor and convenience, permit checks to be drawn against it before payment; the depositor, in the event of nonpayment, being responsible for the sums drawn, not by reason of his indorsement, the check not having ceased to be his property, but for money paid. 3 Ruling Case Law (under title “Banks”), p. 522.
This case has some of the features of the case of In re State Bank, 56 Minn. 119 (57 N. W. 336, 45 Am. St. Rep. 454), in which case the supreme court of that State, in an opinion written by Mr. Justice Mitchell, said:
“But, after all, the question is one of the agreement of the parties, either express or implied, from the general course of business between them. There can be no doubt that, if a draft or other paper is delivered to a bank for collection, the mere fact that the indorsement of the owner is unrestricted will not, as between him and the bank, make the latter the owner of the property.
“Neither is it conclusive upon the question of ownership of the paper that before collection the amount of it is credited to the customer’s account, against which he has the privilege of drawing by check. It b.as been frequently held, with the approval of the best text-writers, that if paper is delivered by a customer to a bank for collection, or ‘for collection and credit,’ a credit of the amount to the customer before and in anticipation of collection will be deemed merely provisional, and the privilege of drawing against it merely gratuitous, and that the bank may cancel the credit or charge back the paper to the customer’s account, if it is not paid by the maker or drawee. Giles v. Perkins, 9 East. 12; Levi v. National Bank, 5 Dill. 104 [Fed. Cas. No. 8,289]; Balbach v. Frelinghuysen [C. C.], 15 Fed. 675. The right of banks to do this in case of the deposit of checks on other banks, without any special contract, is generally exercised and recognized. This is inconsistent with the idea that the title to the checks passes absolutely to the bank, and is only consistent with the theory that the bank is the agent of the customer for collection, notwithstanding the credit of the latter. 2 Morse, Banks, •§ 586; Hoffman v. Bank, 46 N. J. Law, 604.
“Of course, in all such cases the banker, like a factor, has a lien for advances made on the faith of the paper, and consequently the claim of the customer may be modified by the state of his account. No such question, however, arises in this case; the balance of the petitioners’ account, independent of these drafts, being in their favor at the time of the failure of the bank. The authorities on this subject are quite fully collated in Morse on Banking, § 578 et seq. See, also, Paley, Ag. 91, note; and Story, Ag. § 228, note 2.”
See, also, National Commercial Bank v. Miller, 77 Ala. 168 (54 Am. Rep. 50).
Under the contract here entered into between the bank and the brokerage concern, it is clear that the bank became the latter’s agent for collection of the checks, and could not, it is needless to suggest, be the owner of the paper at the same time.
It is contended, however, that, as the books of the bank disclosed that there was a credit of $175.97 at the beginning of business on July 17th, that the credit balance of the firm-at the close of business on that day was $1,181.67, and the check in question amounted to $3,526.57, it is conclusive that at least a portion of the amount of the check had been drawn against, and that the bank should have a lien for at least that amount on the proceeds of the check.
The transactions in Cameron Currie & Co.’s checking account on July 17th are thus tabulated in defendant’s brief:
Credit.
1. Balance .................... $175.97
2. Deposits: Checks on the ' First National Bank and National Bank of Commerce. These items are all a part of the kiting opera- ' tions of Currie & Co., and were upon accounts in which they had no money. , 7.000. 00 9,812.50 3.000. 00 10,000.00 2.000. 00 9.500.00 8,906.25 8.500.00
3. The check in suit............ 3,526.57
4. Two drafts on Hayden, Stone & Co., with collateral, which were later satisfied out of the same $6,500.00 5.500.00
5. Miscellaneous items 25.00 150.00 7.50 3.50 41.66 1.00 10.00 175.00 10.00 1.300.00
Total ................... $76,144.95 6,144.95
Debit.
1. Checks payable to People’s State Bank, which were a part of the kiting operations carried on through the National Bank of Commerce and the First National Bank, and which plaintiff received before clearing house hours — i. e., 11:30 a. m. — July 17th $6,175.00 5.000. 00 4,673.20 6.120.00 4.912.50 3,500.00 5.000. 00 6.512.50
2. Checks payable to People’s State • Bank, on which Fearnley testified he got cash, which was probably used to make good Currie’s account at the two national banks before clearing house. There is no direct testimony as to when these checks were paid 2,500.00 3.000. 00 2.000. 00
3. Other items paid through the ' clearing house July 17th, • and therefore certainly before 1 o’clock 70.05 37.50 300.00 3.50 221.25 142.46 112.50
4. Check to Matthew Finn, paid July 16, 1908, charged July 17th ...................... $5,109.35
5. Items regarding time of pay-' ment of which there is no testimony ► 9,000.00 103.75 190.00 366.25 12.50 1.00 9,899.80
Total $74,963.11 $74,963.11
Credit balance $1,181.84
It is claimed that the books of Cameron Currie & Co. show that their checking account with the bank was overdrawn on that day to the amount of $59,000. On that day, as appears by the summary above set forth, by far the larger part of the entries were mere paper transactions, and were part of what is known as check and draft kiting operations, which it appears had been continued for months previous to that time. Cameron Currie & Co., who, as has been stated, were insolvent on the 1st day of July, 1907, were enabled to continue in business by transactions which are spoken of in the opinion in Austin v. Hayden, 171 Mich. 38, 56 (137 N. W. 317, 324), supra, as follows:
“During the financial depression which occurred during the latter part of 1907 they were in sore straits and resorted to irregular and dishonest practices, which were followed, when emergencies arose, until their failure. They concealed and covered up their true condition by fraudulently hypothecating securities under their control, delaying delivery by specious excuses, by a system of having commercial paper afloat, called 'kiting paper,’ making overdrafts and wiring money at the last moment to cover them, and other similar expedients.”
A considerable part of these check and draft kiting operations were carried on through the plaintiff bank.
Against the objections of plaintiffs counsel, who contended that it was immaterial and irrelevant, a large amount of testimony was introduced bearing upon this practice of Cameron Currie & Co. Mr., McPherson, an expert accountant, described these kiting operations, so far as they are applicable to this case, as follows:
“Cameron Currie & Co. would deposit in the People’s State Bank checks drawn upon the National Bank of Commerce and the First National Bank. Those checks would go through clearings, and so far as I recall, until the morning of the 18th day of July, all such checks were honored by the bank upon which drawn. I mean paid by the bank upon which drawn. Currie & Co. would deposit in the First National Bank and the National Bank of Commerce drafts which they had obtained by purchase from the People’s State Bank, and for which they had given their checks to the People’s State Bank. That would make up a part of their deposits. The balance of their deposits would' be made up of regular transactions, checks from customers and drafts on various brokers. I determined that to the extent that the checks or that the drafts that were purchased from the People’s State Bank were deposited in either of the other two banks, to that extent, with all the knowledge I had before me, they were kiting transactions. * * * Generally speaking, by kiting checks I mean any method which produces a temporary credit by the exchange of checks or by the making of drafts where the money has been later forwarded to pay those drafts, or by depositing of checks where the money to meet the checks has been later deposited to meet the checks before they go through clearings. Transactions of that sort I would regard as kiting transactions.”
In an effort to establish the giving of value for the check in controversy, the plaintiff itself introduced a large number of drafts and checks which were largely made up of these kiting transactions; and it seems to us to have been perfectly proper to allow the defendant to show the real nature of these paper trans actions, and that they in fact represented nothing but illegal transactions on a gigantic scale. Detroit National Bank v. Trust Co., 145 Mich. 656 (108 N. W. 1092, 116 Am. St. Rep. 319).
It is the contention of the defendant and appellee that these illegal transactions and the fictitious credit that was being given by the bank to Cameron Currie & Co. were known to the bank and permitted by it to continue. We think that such knowledge is conclusively shown by the testimony of Mr. Robert Mason, who was an assistant cashier of the bank, and whose duty it was, under a special assignment, to look after the account of Cameron Currie & Co. and see that they did not overdraw their account. With reference to the kiting operations, he testified in part as follows:
“Q. Who was it that turned this account over to you to handle — what officer of the People’s State Bank?
“A. Mr. Potter.
“Q. What position did he occupy?
“A. He. was vice president.
“Q. In short, Mr. Mason, Cameron Currie & Co., through the People’s State Bank, First National Bank, National Bank of Commerce, and Hayden, Stone & Co., for a year were engaged in what is commonly known among bankers as check kiting, were they not, and draft kiting?
“Mr. Keena: I will object to that as immaterial and irrelevant.
“The Co-urt: I will take an answer. Note an exception.
“A. I don’t know how long.
“Q. Well, for six months previous to July 17, 1908?
“A. I don’t remember how long.
“The Court: Under your plea you don’t go back any farther than six months, do you, if you go back that far. I have forgotten.
“Q. They were engaged in this practice on the 17th day of July, were they not?
“A. Yes, sir.
“Mr. Keena: That is objected to as immaterial. (Objection overruled. Plaintiff excepts.)
“Mr. Keena: All of this testimony is received under objection.
“The Court: Yes.
“Q. They were engaged in it on the 16th. day of July, were they not?
“A. I think so.
“Q. On the 15th?
“A. I guess so.
“Q. Well, it extended back.for a period of at least six months, did it not?
“A. I don’t remember how far back.
“Q. What does check kiting and draft kiting mean iii banking?
“A. Am I supposed to explain that?
“Q. Yes; just shortly, what does it mean?
“A. A man will draw a check upon a bank where he hasn’t any funds, and then next day, when the check comes in, he draws a check upon the bank that he originally deposited the first check in to take care of the first one, the second one not coming to the clearing house until the third day.
“Q. Then what?
“A. Then you deposit another one. It just kind of keeps up an endless chain. It is hard to explain it.
“Q. What is the effect of it; what is it done for?
“A. You get the use of money for a day.
“Q. Does it result in a fictitious credit appearing upon the books of the bank?
“A. I should say yes. * * *
“Q. You don’t mean to have it appear here that on the 17th day of July these unpaid checks and drafts that came into the bank afterwards, that those were the beginning of those transactions, do you? You don’t mean that?
“A.- That isn’t what I said.
“Q. You know that the history of those transactions dates back months, don’t you?
“A. I don’t remember how long.
“Q. It dates back from the time you had your talk with Case, doesn’t it?
■ “A. I don’t remember.
“Q. It commenced about that time, didn’t it, when Case had his talk with you?
“A. I don’t remember.
“Q. And stated to you that that is why he wanted to do it, didn’t he?
“A. Wanted to do what?
“Q. That the reason he asked you these favors or your bank these favors was that Hayden, Stone & Co. were having their books examined, and that he thought that they would put $250,000 into the business as capital.
“A. He made that statement to me; yes.
“Q. If it had not been for that statement, you would not have allowed this to go on, would you?
“A. No; I don’t think I would.
“Q. Why wouldn’t you have allowed it to go on?
‘‘A. Well, I wanted to know something about their affairs.
“Q. You would not allow any customer to do that, would you, excepting for some promise of that kind?
“A. No; not without any security. * * *
“Q. You say that Mr. Case stated to you that they were going to get additional capital of how much?
“A. I believe the amount was $250,000, according to my best recollection.
“Q. How long before the failure did you have a talk with him on that subject?
“A. It was some time previous.
“Q. Did he show you any communications he received with reference to it from Mr. Currie or anybody?
“A. I recall he showed me a telegram at one time.
“Q. When was that?
“A. It was some time previous to the failure. I don’t remember just when.
“Q. You don’t know how long?
“A. No, sir.
“Q. But did you have several conversations • with him when he would come in at different times?
“A. Oh, yes; almost every day.
“Q. When he would ask to have dishonored drafts taken up by new drafts, would you have a conversation with him about the additional capital? Would he tell you something about it?
“A. He mentioned that at various times.
“Q. I guess that is all.”
Cross-examination by Mr. Groesbeek:
“Q. But he never brought in the $250,000, did he?
“A. No, sir.
“Q. And it dragged along for months in that stage, that he was coming to you and talking to you about something that they were going to get; showed you a telegram?
“A. I won’t say months, Mr. Groesbeck. I couldn’t say exactly the time.
“Q. Well, Mr. Mason, you said here it was some time in the spring. Fix it by Decoration Day, say.
“A. Somewhere in that neighborhood I guess.
“Q. It was before Decoration Day, wasn’t it?
“A. Well, I could not state. It was around, that neighborhood some time, along in the spring.
“Q. You don’t know of any other concern that the People’s State Bank was loaning a hundred or one hundred sixty-two thousand dollars to upon a statement that somebody was going to put a couple of hundred thousand dollars in their business, do you?
“A. I don’t recall any.”
It thus conclusively appears: That Mr. Mason had knowledge of the kiting operations of Cameron Currie & Co. with the bank as early as Decoration Day of 1908, and that these operations were allowed to be continued by him as an officer of the bank because he had been told by Mr. Case that Hayden, Stone & Co. were auditing the books of Cameron Currie & Co. and expected to put $250,000 of additional capital into that business. That the bank, through Mr. Mason, well knew and understood that Cameron Currie & Co. were agents buying and selling for customers and owners generally on commission, there can be no question, and also that he had knowledge of the fraudulent credits extended to them, and the fact of their insolvency. The defendant put on as witnesses, with reference to the bank’s transactions with Cameron Currie & Co., certain of its clerks and tellers, but no officer of the bank took the stand who testified authoritatively to the real relations existing between the bank and Cameron Currie & Co.
After a careful examination of the record with reference to these various transactions, we are unable to say, from the proofs, what the real condition of this checking account was at the time of the deposit of the check, and are satisfied that a great amount of the transactions that entered into this checking account were not legitimate banking transactions, and were not carried on in the ordinary course of banking business; and that these transactions were consented to by the officer of the bank in charge of this account. We do not believe that, under these circumstances, it should be said, or that it can be said, that the bank (it having consented and permitted Cameron Currie & Co. to do business in this illegal way) was a bona, fide holder of this check for value, and therefore agree with the trial judge in holding that the plaintiff had not met the burden placed upon it to show this, and its case against the defendant must therefore fail.
Neither are we of the opinion that the defendant has by his conduct in the case of Austin v. Hayden, supra, in which he appeared as an intervener, es-topped himself from setting up fraud as a defense in this case. To so hold was not the purpose of this court in the opinion written by Mr. Justice Brooke in the case of Austin v. Hayden, 176 Mich. 331 (142 N. W. 563). While, under this opinion; Hayden, Stone & Co. might have defended this action, nevertheless it appears that they did not so defend and the defendant did.
We find no error, and the judgment is therefore affirmed.
Brooke, C. J., and McAlvay, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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Stone, J.
This action was brought to recover damages for an injury to the left hand of the plaintiff, received on September 9, 1912. This was a few days after the workmen’s compensation act took effect, and about a month before the defendant went out of business; the said defendant not having elected to pay compensation under the said act.
The defendant, ás lessee, had been running a sawmill at Skanee, Baraga county, for about 20 years. The plaintiff had worked for defendant for some time about six years before, and during the summer of 1912 he worked for defendant abaut two months altogether; first behind the slab saw, then outside at various duties, and finally back in the mill running the lath machine — “shoving lath,” as it is called. This lath machine was on a bench or table approximately waist high, about 3 feet wide from front to back (the front being the plaintiff’s position), and some 8 feet long from left to right. The machine consisted of two lath saws about 12 inches in diameter, hung on a horizontal shaft just below the bed of this bench, so that the saws came up through the bench some 3 or 4 inches. The bench extended to the left of the saws toward the bolter saw about 5 feet. In front of these saws there was a pair of feed rollers, one lying in the bed of the bench and the other immediately over it. These rollers were about 3% inches from the saws, were about 1% inches apart, and had jagged teeth. They turned toward the saws so that if a block of wood were shoved against them they engaged it with their teeth and carried it along and forced it against the saws. There was another pair of similar rollers behind the saws, which took the block after it had passed the saws, and a man. was stationed there to receive it and the laths that had been cut from it. At the right hand of the plaintiff there was a lever which raised, simultaneously, the upper roller of each pair so as to disengage both pairs from any timber between them and permit its removal, if it projected out from the machine far enough on either side to permit the man on that side to grasp it, or, if it did not so project, to permit the insertion of another piece to dislodge it.
All of this machinery was covered in front and above so that there was no way for a man’s hand to come in contact with the saws except through these rollers. By reaching around to the left of and behind the rollers, however, the saws could be reached. Beneath the bench and the saws was a chute which conveyed the sawdust, broken pieces, chips, etc., to the burner. There was a side guide against which the bolt was pressed when it was shoved against the front rollers. One lath was cut between this guide and the nearest saw, and another lath was cut between the two saws. The saws and rollers were on the left of this guide, occupying a space of about 5 by 18 inches, while all the bearings and means of driving the saws and rollers were on the right of this guide, as the plaintiff stood at his work. All the machinery, shaftings, bearings, pulleys, saws, and rollers occupied a space approximately 2 feet square on the bench, and extended above the bench about 6 inches. The opening on the left side is this 6-inch space between the bench and the covering over the machinery above mentioned. Next to the right from this guide came the first bearing of the saw shaft, then the pulley which drove the saws, and farthest to the right was the second bearing. The belt which drove this shaft ran down through the floor to the power pulley, so that should the bearings wear away, or the babbitt melt and run out of the bearings, as the plaintiff claimed often happened, and thus gave the shaft additional space in the bearings, the tension of the belt would pull the shaft down to the bottom of that space, and the effect would be to lower the shaft and the saws. The plaintiff, on the trial, contended that the bearing next the saws frequently became thus worn; that because thereof the end of the shaft carrying the saws often was lowered; that at such times the saws ran in a plane slightly out of a true perpendicular, and made a wedge-shaped and unmerchantable lath; and that this position of the saws tended to increase the breaking of bolts, and to increase the liability of pieces becoming lodged around the saws.
At the time of the injury plaintiff was operating this lath machine, i. e., was “shoving lath.” Four days before this, Goodreau, the regular lath shover, had gone away for a visit. Plaintiff, then working outside, was instructed to go into the mill and pick edgings, but refused, saying: “I don’t like to pick edgings. If I am going in thé mill, I will take Goodreau’s place” — and this he did. The lath were manufactured from the refuse of the sawmill. The slabs and edgings that were discarded in the manufacture of lumber were cut into four-foot lengths, and such of them as were suitable for lath were taken to the bolter saw, where they were cut into bolts. The bolts vary greatly in width, being as wide as the material from which they are cut will permit. Some were wide enough to make two laths, some six or eight. These bolts, from the nature of their origin, were defective .and frequently broke from no other cause than inherent weakness, such as knots, cross-grain, dry and checked hemlock, broken slabs, etc. Plaintiff was shoving these bolts into this lath machine. A man stood behind the lath machine and received the lath and remnant of bolt. If the remnant had sufficient width, he passed it back to the plaintiff, and it was fed through again. This was repeated until the bolt was used up. The bolter saw was located at the left end of the lath machine bench, about five feet distant from plaintiff’s position. The man who operated this bolter saw as the bolts were cut piled them on the lath machine bench between the bolter saw and the lath saws. This brought the pile of bolts to the plaintiff’s left hand. Shortly before the accident, a bolt, on its last cut when its liability to break was at the greatest, broke, and a piece of it stuck in front of the saws in some way not explained. Until this piece was removed it prevented further making of lath. This condition existed for some little time before the accident.
The defendant claims that the theory on which the plaintiff relied at the trial was altogether different from the theory set forth in his declaration; that the theory of the declaration was, in a word, an improperly constructed chute, viz., that the accident resulted solely because the chute below the bench and lath saws was so improperly constructed that, instead of permitting the pieces of broken bolts to fall away as they ought, caused them to lodge therein; and that the condition of the babbitt and saws only increased the frequency of the breaking of the bolts; and our attention is called to the language of the declaration, as follows:
“That the plaintiff while engaged in cutting a bolt of wood into lath, a bolt of wood broke, and a piece of said bolt became lodged in the chute hereinbefore mentioned in such a manner as to prevent the further manufacture of lath until the same was removed. That, in order to remove said piece of bolt, plaintiff reached his left hand into said chute and was injured by coming in contact with the saw. * * * That the defendant owed the duty of informing the plaintiff of the increased danger of bolts breaking, and that he failed in that duty.”
It is urged by defendant that these are the only allegations contained in the declaration in any way indicating the cause or manner of the accident, and that they conclusively show that, even if the saws were in such a condition or position as to increase the frequency of broken bolts, as claimed, still the accident would not have happened if the chute had been so constructed that the piece could not lodge therein; and that thus, on the theory of the declaration, the condition of the saws was not the proximate cause of the accident, and was immaterial. It is further urged that upon the trial' this theory was not supported by any testimony. While plaintiff attempted to show the insufficiency of the chute, he failed to show that this broken bolt lodged in the chute, or that he reached into the chute, but showed that the piece lodged in front of the saws, and that he reached around above the bench to the left of and behind the rollers, in an attempt to remove the broken piece, and that because of this testimony the trial court instructed the jury to pay no attention whatever to the chute, saying, “The chute has absolutely nothing to do with this case.”
The defendant contends that upon the triad the plaintiff’s theory was that, because of the melting out of the babbitt in the bearings, the shaft would drop down, causing the saws to run at a slant, and thus to cut a wedge-shaped lath, with a tendency to increase the breaking of the bolts and the lodging of the broken pieces in or around the saws; that this condition and these results had been frequent during the summer; that under this theory the plaintiff was compelled to rely upon the condition of the saws as the proximate cause of his injury, but it is urged that he produced no evidence that the bearings and saws were in any such condition at the time of the breaking of the bolt in question; that in fact the testimony of the plaintiff directly negatived such a condition, he having testified, on cross-examination, as follows:
“Q. Now, you said that the saws were hanging in such a way that they broke this bolt?
“A. I never said such a thing.
“Q. How did this bolt become broken?
“A. I don’t know. The bolt was of the ordinary run that we were using in the mill. I was having-unusual troubles in sawing lath that day. Everything was not going on as usual and all right. The lath machine was bucking; the whole machine. It wouldn’t run; it was blocked up. I saw Mr. De Haas that day. I never took time to tell him it wouldn’t run. I saw Mr. Beckstrom (the foreman) and told him it wouldn’t run. He was fixing it up, and it bucked again. He put in new babbitts in the boxes the same day I got hurt. Twice that day, if I ain’t mistaken. I can’t remember exactly. I told Mr. Beckstrom the machine was bucking. This block was 10 or 12 inches long and was partly between the rollers and up to the saw. This board, after going through the rollers and coming to the saw, broke. When it broke it was standing up in this position, kind of slanting.
“Q. How much of the slab was sticking out from the rollers towards you?
“A. You mean outside of the rollers?
“Q. Yes.
(‘A. About a foot.
“Q. And you took hold of that slab on that foot to pull it back?
“A. Yes, sir. There is a lever there to raise the rollers and separate them. I used that lever. It does not raise them high enough when it is sticking up in front of the rollers. * * *
“Q. You mean you reached around endwise and put your hand behind the roller and the saw?
“A. Yes, sir. I got hold of the bolt, and the bolt jerked my hand onto the saw; it drawed it endwise. I put my hand around the outside of the rollers and reached the bolt, and reached the saw when- the bolt pulled me there. I reached around to take hold of the bolt from the side behind the rollers in front here. That is the only way you could get it out from there. I couldn’t get it between the rollers and out that way.’’
The plaintiff described the accident as follows on direct examination:
“Q. Now, what happened when you got hurt, Mr. Lydman ?
“A. The bolt was broke off and stuck up in front of the saws there, and I couldn’t get it out. I tried by shoving lath to shove it out and couldn’t, and we were in a hurry because we were blocked off. We were in a hurry to catch up, and I took the hand to jerk it out of there. The piece that was stuck in there was 10 inches or a foot, and it stuck right in front of the saw, standing this way (indicating). As soon as I took hold of it, it jerked my hand right on the saw and it was all gone. That is all I can say. The fingers that are missing were taken off as a result of that injury. * * *
“Q. Now state to the jury, Mr. Lydman, just how that piece of 10 or 12 inch stuff was lodged or jammed in there.
“A. As far as I understood, she was bound in against the saw some way in there. I don’t know what it was. That is more than I can say, because I am not any machinist. It stuck up in a position this way (indicating). I took it here behind the roller, and I took it with my hand. I had mitts on and it jerked. I didn’t have time to think or anything when it happened. It took this way and jerked the hand on the saw.”
Besides the methods used by the plaintiff, there was evidence tending to show that there were two othér methods ordinarily in use on occasions of the block becoming fast or stuck in the machine, viz.: The man behind the saws would sometimes take a piece of lath and shove it through the saws from behind to dislodge the broken bolt; and, if this method failed, then the lath shover would step down to the floor beneath, and run off the belt and stop the saws. Neither of these last two methods was used, probably because the plaintiff, as he testified, was in a hurry.
Upon the close of the plaintiff’s case, and again at the close of alj the testimony, the defendant moved the court to direct a verdict of no cause of action on two grounds:
(1) Because no negligence on the part of the defendant had been shown; and (2) that the negligence claimed was in no wise connected with the actual injury.
Which motions were overruled, and to which ruling the defendant excepted. The trial resulted in a verdict for the plaintiff in the sum of $1,200 damages, and the defendant has brought the case here upon writ of error.
The third and fourth assignments of error were because the court erred in overruling the motions of the defendant, last above indicated, for instruction of verdict.
The sixth assignment of error is as follows:
“Because the court erred in charging the jury upon its own motion as follows: Tt is the claim of the plaintiff * * * that by reason of that fact (the babbitt in the bearings being partially melted away so as to cause the saws to run out of true) the bolts would occasionally catch in the saws and were held there in such a way between the saws and the rollers so that the plaintiff would occasionally be compelled to reach in between the saw or saws and the rollers in order to pull away a piece of the bolt, or a piece of lath which might be held by the saw in that way.’ For the reasons that there was no claim in the plaintiff’s declaration and no testimony to show that the bolts occasionally would catch, or that the bolt in question did catch in the saws and be held there in such a way between the saws and the rollers so as to occasionally compel the plaintiff to reach in between the saws and the rollers to pull same away, and because there was no claim or evidence that the plaintiff was compelled to reach into the saws.”
The seventh assignment of error is as follows:
“Because the said court erred in charging the jury upon its own motion as follows: ‘The plaintiff also claims that the defendant was negligent in failing to warn the plaintiff that pieces of wood or pieces of the bolt would occasionally catch in the saw and be held there so that he would be compelled to reach his hand in and pull them out.’ For the reason that there was no claim in the declaration, and no proof upon the trial, that plaintiff was compelled to reach his hand in, and for the further reason that there was no allegation in the declaration of negligence in failing to warn, that pieces of wood or bolt would catch in the saw so as to compel plaintiff to reach his hand in.”
Ninth assignment of error:
“Because the court erred in charging the jury upon its own motion as follows: T will say right here now, as a matter of law, that there was no wilful neglect on the part of the plaintiff as contemplated by that statute (the Michigan workmen’s compensation statute), none whatever; so that, so far as the plaintiff’s negligence is concerned, you need pay no attention to that, or argue about it, or discuss it in any way. It is not in the case. The only questions for you to decide will be the questions that I give you during the course of these instructions.’ For the reason that the latter portion of the foregoing was not necessary to the earlier portion relating to wilful negligence, and in effect eliminated the defendant’s claim that the plaintiff’s negligence was the primary, proximate, and sole cause of his injury, and gave the jury to understand that no action of the plaintiff should be considered by them in the case as affecting any of the issues therein.”
Tenth assignment of error:
“Because the court erred in charging the jury upon its own motion as follows: Tt is the claim of the plaintiff that on account of the machine getting out of line and sticks would catch in the machine so often that it became more than ordinarily often; in fact, so often that it became necessary for him, as a matter of custom, to reach his hand in there and pull them out.’ For the reason that there was no claim in the declaration and no evidence on the trial that it was necessary, or that it was the custom, for the plaintiff to reach his hand into the machine to pull out sticks.”
It is worthy of passing note that, the defendant not having elected to pay compensation in the manner and to the extent provided by the workmen’s compensation act, the following defenses were not available to the defendant:
(a.) That the employee was negligent, unless and except it should appear that such' negligence was wilful; and (6) that the injury was caused by the negligence of a fellow-employee; (c) that the em ployee had assumed the risks inherent in, or incidental to, or arising out of, his employment, or arising from the failure of his employer to provide and maintain safe premises and suitable appliances.
1. It should still be borne in mind, however, that there can be no recovery in this case in the absence of evidence of negligence on the part of the defendant. In order for the plaintiff to prevail, it was necessary for him to show that the defendant was guilty of the negligence complained of, on the day in question. We have examined this record with care, but in vain, to find any evidence of the negligence complained of, on the day of the plaintiff’s injury. There was some general evidence of the working of the machine prior to the afternoon of the accident, but it appears that the foreman had made repairs upon the machine on one or two occasions during the day the plaintiff was injured. Especially did it appear that the machine had been rebabbitted twice that day. We think that evidence of the working of the machine or the condition on prior days was not sufficient to show evidence of the condition of the machine on the day in question, especially in view of the testimony of the plaintiff that the machine had been repaired that day. The plaintiff’s own testimony indicates that he does not know what caused the bolt to break, or that the same was caused by the slanting of the saws. A jury should not be permitted to speculate upon this subject. We are constrained to hold that the plaintiff did not sustain the burden of proof required to show that the defendant was guilty of the negligence complained of, and that the court erred in not directing a verdict for the defendant, as complained of in the third and fourth assignments of error.
2. The sixth and seventh assignments of error complain because the court submitted to the jury the question whether the plaintiff was not compelled occasionally to reach in between the saws and the rollers in order to pull away a piece of bolt or lath. We are unable to find any evidence in the case that warranted this charge. We find no evidence that the plaintiff was, by instruction or otherwise, compelled by any act or instruction of the defendant to reach into the place of danger as indicated. This machinery seems to have been properly covered and protected. There is no claim that the plaintiff did not understand that by going below the machinery could have been stopped and the broken piece or block taken out, and there was no evidence that he was instructed otherwise.
3. By the ninth assignment of error the defendant complains because the court instructed the jury in the manner indicated relative to the plaintiff’s negligence, for the reason that it eliminated the defendant’s claim that the plaintiff’s negligence was the primary, proximate, and sole cause of his injury, and gave the jury to understand that no action of the plaintiff should be considered by them in the case as affecting any of the issues therein. It seems to be the claim of the defendant that the plaintiff’s negligence was the proximate and sole cause of his injury. Of course, if the plaintiff’s negligent conduct was the sole cause of his injury, this may be another way of stating that the defendant was guilty of no negligence, and that matter we have already .considered. If the defendant was guilty of any negligence, it is very evident that he cannot here claim the benefit of any contributory negligence on the part of the plaintiff as a defense, by reason of the act which we have referred to; and he cannot defeat recovery by claiming that the contributory negligence of the plaintiff was the proximate cause of the injury. We have examined the numerous cases cited by defendant’s counsel. It is true that in the case of Charters v. Industrial Works, 179 Mich. 1 (146 N. W. 128), some language was used by the writer of this opinion which would seem to justify the claim of counsel. In that case, in speaking of the conduct of the plaintiff in failing to relight his lantern, and in walking where he did in the dark, we held he was guilty of contributory negligence, and we said, in speaking of such conduct:
“If this did not constitute contributory negligence, it is difficult to state what would constitute such negligence. It is not necessary to cite our own cases holding that, where there is a comparatively safe and a more dangerous way of discharging a duty, it is negligent to select the more dangerous.”
There was then added the following dictum, which might well have been omitted:
“We agree with defendant’s contention, also, that the extinguishment of the lantern was not the proximate cause of the plaintiff’s injury. The extinguishment of the lantern was followed by another independent intervening cause which could not reasonably be anticipated, namely, plaintiff’s voluntary act in walking towards the approaching car, between the weights and the track, after his lantern was extinguished. This, we think, was the proximate cause of the injury, and for this act defendant was not responsible.”
Manifestly, a negligent contributory act of the plaintiff would not constitute “an-independent intervening cause,” as that term is usually applied in the doctrine of proximate cause, so as to deprive such act of the nature or quality of contributory negligence.
Plaintiff’s counsel have also called our attention to other cases where this court has held, in suits brought for injuries to minors under the statutory age for employment at hazardous work — landlord’s duty to install gates for elevators, etc. — that the defense of negligence of plaintiff was not available to de fendant, and assert that the unlawful employment or failure to install gates, under the statutes, barred the defense of contributory negligence. In this we think counsel are mistaken. Beghold v. Auto Body Co., 149 Mich. 14 (112 N. W. 691, 14 L. R. A. [N. S.] 609); Barfoot v. White Star Line, 170 Mich. 349 (136 N. W. 437); Pequignot v. Germain, 176 Mich. 659 (142 N. W. 1092). In those cases, notwithstanding the statutory duty upon the defendants, the defense of contributory negligence was not taken away. The rule that, since the employers’ compensation act took effect, contributory negligence of the plaintiff is not a defense, should not be frittered away in an action for damages, as in the instant case, by saying that such negligence was the proximate cause of the injury. If counsel simply mean that the sole cause of the injury was the conduct of the plaintiff, and that the defendant was guilty of no negligence, then we agree with them that the plaintiff cannot recover. We do not think that the point urged in the ninth assignment of error is well taken.
4. Under the tenth assignment of error, complaint is made because the court charged the jury that they might consider whether it became necessary for the plaintiff, as a matter of custom, to place his hand where he did when he received the injury. We do not find any evidence in the record either that it was necessary for the plaintiff to do as he did, or that there was any evidence of such custom, or that he relied upon, or claimed to know of, any such custom. We think that this portion of the charge was misleading and prejudicial.
We find no other errors in the record.
For the errors pointed out, the judgment of the circuit court is reversed, and a new trial granted.
Brooke, C. J., and McAlvay, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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