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Beasley, J.
Plaintiffs are land developers seeking to develop a regional shopping mall for major department stores and numerous other retail stores on 96 acres of land in defendant City of Burton (hereinafter referred to as defendant city). The shopping center site is surrounded by high quality, residential homes and a nature preserve. Defendant city granted plaintiffs’ zoning request to change the zoning to a C-4 classification, which is designated as a planned shopping center district.
Shortly after the rezoning, a group of citizens circulated petitions and filed them with the city clerk, demanding a referendum on the repeal of the old ordinance No. 19-51(C). The petitions were certified by the city clerk as meeting the referendum requirement of the city charter, as set forth in § 5.10.
Plaintiffs then brought this action for declaratory judgment and injunctive relief, seeking a declaration that ordinance No. 19-51(0 was not subject to repeal by referendum. Although named as a party defendant, and apparently caught in the middle, defendant city leans toward denying the petitioners a referendum. Defendant, Davison-Belsay Citizens Association, Inc., made up of objectors to the rezoning, was permitted to intervene as a party defendant and, as a practical matter, is the real party in interest.
In response to plaintiffs’ motion for summary judgment, the trial court rendered an opinion finding that there was no right of referendum, granting plaintiffs’ motion for summary judgment and permanently enjoining defendant city from holding a referendum to repeal ordinance No. 19-51(C). Defendant association appeals as of right from the order granting summary judgment, raising two issues.
The first issue is whether ordinance No. 19-51(C) of defendant city may be repealed by referendum.
Defendant City of Burton is a home rule city. The home rule cities statute provides for referendum and initiative as a permissible charter provision as follows:
"Sec. 4-i. Each city may in its charter provide:
"(6) For the initiative and referendum on all matters within the scope of its powers and for the recall of all of its officials.”
The Burton City Charter provides, in § 5.9, as follows:
"INITIATIVE AND REFERENDUM.
"Section 5.9. The electors of the city may initiate any ordinance or secure a referendum on any ordinance permitted by law, except annual tax levy ordinances, by petition as hereinafter provided.”
Under § 5.14 of the city charter, if the required number of citizens file certified referendary petitions with the city clerk within 30 days after an ordinance is passed, the effect of the ordinance is automatically suspended. For purposes of the summary judgment motion, it has been conceded that the petitions are sufficient under the city charter.
This issue is not new to Michigan courts. In Elliott v City of Clawson, the Court framed the issue before it as follows:
"The sole issue presented is whether the general initiative and referendum provisions in the charter of a home rule city give rise to a right to repeal an amendatory zoning ordinance by referendum.”
The Elliott Court held that there was not any right of referendum in that situation and that the procedure afforded by the zoning enabling act constituted the only method to repeal an amendatory zoning ordinance in a home rule city. Among other things, the Court, citing decisions from other states, decided that the Legislature had established other procedures as a substitute for the right of referendum. For example, the statute provides that if a "protest petition” is filed timely the amendment to the zoning ordinance requires a two-thirds vote to pass.
In Elliott, the Court also indicated that referendum is not an appropriate technique in rezoning matters because of the unique impact which zoning laws have on property rights, saying:
"The protection of private property rights must be balanced with the community’s need for a comprehensive and flexible zoning plan. The general referendary provision of the Clawson city charter imposes no time limit in which a referendum on a proposed ordinance must be brought. Such an initiative and referendary plan without time limitation tends to destroy the comprehensiveness and coordination of zoning legislation. If zoning ordinances were subject to such provision, what reliance could be placed upon such ordinances by owners or prospective purchasers of property?”
But, in Rollingwood Home Owners Corp, Inc v City of Flint, this Court took a different tack, holding that, while the housing and slum clearance statutes permit a city to violate the provisions of its own zoning ordinance, approval of a construction contract involving a housing project with minimum lot sizes less than required by the zoning ordinance was subject to a charter-provided referendum.
Since the effect of the contract was to amend the minimum lot size provisions of the zoning ordinance and since the decision made approval of the contract subject to a referendum, the case is cited as authority for permitting application of referendum to an amendment to the zoning ordinance. Thus, the holding in Rollingwood, supra, is said to be in conflict with Elliott, supra.
In Korash v Livonia, the Supreme Court held that a zoning ordinance cannot be enacted by an initiatory proceeding. The basis for that decision is that the statutory notice provisions and the necessity of a recommendation by the planning commission are conditions precedent to adoption of a zoning ordinance which lift that subject outside of the practical possibility of an initiatory proceeding. The reasoning is that since the notice and referral provisions become largely inconsequential if an ordinance is to be adopted by initiative, therefore the initiative provisions of the charter are deemed inapplicable to adoption of a zoning ordinance.
In West v City of Portage, the Supreme Court split, 3-3, with one abstainer. One view held that an amendatory zoning ordinance was an administrative act; therefore, a referendum was inapplicable because it only applies to legislative acts.
The other view held that there is a right to referendum on a zoning amendment, but due to the fact that in Portage the referendum petition was combined with initiative it was, thus, defective and not applicable.
Thus, Portage appeared to leave this issue deadlocked and undecided. However, subsequently, in Ed Zaagman, Inc v City of Kentwood, the Court stated:
"[W]e are not persuaded to adopt Justice Levin’s administrative approach to the review of zoning determinations * * *.”
Thus, we conclude that the majority opinion adopted "the legislative approach” and interpret Zaagman to permit application of referendum to zoning amendments.
In Chynoweth v City of Hancock, this Court adopted a similar analysis and held that an amendatory zoning ordinance was subject to a charter referendum provision.
We conclude that the right of referendum ap plies to the subject amendment to the zoning ordinance which applied the C-4 regional mall zoning classification to the subject 96 acres. On this issue, we consider our prime function to be to ascertain the law as enunciated by the Supreme Court, rather than to reweigh the merits regarding this difficult issue.
While the state constitution does not extend initiative and referendum to municipal acts, we read the prevailing body of law to favor applying initiative and referendum to legislative acts except where there is compelling reason not to. Where, as here, repeal of an existing zoning classification is involved, we do not believe there is compelling reason to deny a referendum if petitioners otherwise meet the statutory requirements.
In this connection, we would point out that the referendum does not deprive those with standing from litigating the constitutionality or validity of a zoning classification, as applied to a particular parcel of real property, whether or not the zoning amendment has been the subject of a referendum.
Intervening defendant also claims that issues of material fact existed that precluded award of summary judgment. In view of our disposition of this appeal by setting aside the injunction awarded plaintiffs and finding that the subject amendment to the zoning ordinance is subject to a referendum, it is unnecessary for us to resolve this second issue raised by intervening defendant-appellant.
Accordingly, we reverse the judgment of the trial court, vacate the injunction issued, and remand this case for entry of a declaratory judgment in favor of intervening defendant, holding that a referendum on ordinance No. 19-51(C) legally is available.
Reversed and remanded, with costs.
MCL 117.4Í; MSA 5.2082.
21 Mich App 363, 365; 175 NW2d 821 (1970).
MCL 125.584; MSA 5.2934.
MCL 125.584(5); MSA 5.2934(5), or up to, but not to exceed, three-quarters if required by ordinance or charter.
Elliott, supra, 376.
26 Mich App 1; 181 NW2d 797 (1970).
388 Mich 737; 202 NW2d 803 (1972).
392 Mich 458, 461-472; 221 NW2d 303 (1974).
406 Mich 137, 164; 277 NW2d 475 (1979).
107 Mich App 360; 309 NW2d 606 (1981). | [
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Cynar, J.
On January 23, 1979, an order was entered by the Schoolcraft County Probate Court affirming the termination of the adoption subsidies of petitioners’ two adopted children, April Ann and Daniel James Klaus. Petitioners appeal by leave granted on January 16, 1980.
The minors were placed as foster children with petitioners in August 1973, after they had been removed from their natural parents on grounds of neglect. The children were made permanent wards of the court on May 21, 1974.
Petitioners filed a petition for adoption on December 8, 1976, and requested an adoption support subsidy for each child and a medical subsidy for April Ann under MCL 710.48; MSA 27.3178(555.48). That statute provides, in pertinent part:
"(1) When a petition has been filed to adopt a child, the court may pay to the adopting parent or parents, without respect to the income of the adopting parent or parents, either or both of the following subsidies:
"(a) For support of the child who was in foster care for not less than 4 months prior to petition for adoption, a subsidy not to exceed the established foster care rate that could have been paid for the same child by the department.
"(b) For medical, surgical, hospital, and related expenses due to a physical, mental, or emotional condition of the child which existed before the adoption, a subsidy, which may be ordered at any time.”
In order to grant a subsidy, a court must find either (1) that the placement is the only one in the best interests of the child or (2) that efforts have been made to place the child and that no other persons are willing to adopt the child without a subsidy. MCL 710.48(2)(d); MSA 27.3178(555.48)(2)(d).
At a hearing held April 5, 1977, petitioners withdrew their request for a medical subsidy after indicating that medical care would be covered by their insurance. Testimony at the hearing showed that, because the children had developed emotional ties with the petitioners and adoption with a new placement would be detrimental, the best interests of the children would be served if they remained permanently in petitioners’ home. By an order entered April 22, 1977, the court granted the maximum subsidy allowable.
The Michigan Adoption Code provides the following regarding the continuation of an adoption subsidy:
"A subsidy shall continue until the child becomes 18 years of age, becomes emancipated, or dies, or until the further order of the court, whichever occurs first. A subsidy shall continue even if the adopting parent or parents leave the state. As a condition for continuation of a subsidy, the court shall require the adopting parent or parents to file a sworn report with the court at least once each year as to the location of the child and other matters relating to the child as the court determines, but not including the financial condition of the parent or parents. On the basis of the report or information received by the court at any time indicating changed conditions, other than financial conditions, a subsidy may be discontinued by order of the court. A subsidy shall not affect the legal status of the child, nor the rights and responsibilities of the adoptive parent or parents as provided by law.” MCL 710.48(3); MSA 27.3178(555.48X3).
Petitioners filed an undated report on the two children on May 10, 1978, indicating the children were adjusting well to their adoptive home. The probate court ordered an investigation on July 11, 1978, and a report was filed by a juvenile officer two days later. That report focused on the family’s financial status. Without holding a hearing, the probate court ordered the subsidies terminated on August 15, 1978.
Petitioners appealed to circuit court, which heard the appeal and reversed and remanded, apparently unaware that petitioners’ appeal as of right was to this Court and not the circuit court under MCL 710.65; MSA 27.3178(555.65). The probate court was ordered to give proper notice to all interested parties, to hold a hearing and to make written findings of fact and conclusions of law.
A hearing was held December 19 and 28, 1978. The juvenile department officer who investigated the case testified that he observed no adverse change with the children in their adoptive home. He said that the farm and home had not been altered. He testified that Thomas Klaus had told him he needed the subsidies to maintain the family’s lifestyle, but that he loved the children and would keep them even if the subsidies were terminated.
Petitioner, Thomas Klaus, testified that the children were improving in their home. He was then questioned about his home, his strawberry crop and the irrigation system he used for his strawberries. Klaus admitted that he had filed the annual report late, but said he had been unaware of the need to file such a report. He indicated that he understood the subsidies were granted because of his family’s financial situation. Klaus indicated that he had used the subsidies to help pay various bills relating to the upkeep of the home.
On December 28, 1978, petitoner Karen Klaus testified, indicating she believed that the subsidies had been provided for the family’s financial help. She said that the children were improving continually in their home. She also admitted that the first annual report had been filed late and expressed some confusion about the need to have the report notarized.
The probate court issued findings of fact on January 23, 1979, affirming its previous order that terminated the subsidies. The court found that the subsidies were intended for the support of the children, that a subsidy could be terminated by order of the court without a hearing, and that the petitioner had not filed a sworn report as required by statute. The court further found:
"The record has shown that, at the time of the adoption, the Klaus’ indicated that love and affection was their motive and overriding factor to bring these children into their home, but the testimony and other information now shows that their emphasis has now substantially changed, in that the subsidy has been used for payments of their own obligations, and that the subsidy for support has not been a consideration.
"It is clear that these are significant changed conditions since the support payments are being utilized for debts of the Klaus’, and certainly the children are not responsible for the debts of their parents.”
Petitioners now bring this appeal.
Petitioners’ contention that the trial court relied on secret, undisclosed information in reaching its result appears unfounded. It is true that the trial court’s opinion stated that it could discontinue the subsidy based on "other information” received by the court (in addition to the testimony taken at the hearing). It is, however, apparent that the trial court was simply reciting its statutory authority, MCL 710.48(3); MSA 27.3178(555.48X3). The record shows that the information relied on by the trial court consisted of the testimony taken at the hearing plus the annual report filed by petitioners under the section just cited and the investigation report filed by the juvenile department. Petitioners prepared the former report and both reports were read into the record, so there can be no inference that any of the information therein was concealed. Petitioners were represented by counsel at the hearing, and if there was some reason to believe that undisclosed information was before the court, counsel could have requested disclosure. In fact, we see nothing more than a strained and unwarranted inference to support this argument. Therefore, it is not grounds for relief.
Petitioners’ constitutional challenge to the stat ute is based on the proposition that the trial court interpreted the statute to allow a discontinuance of the subsidies based on "secret information”. We see no such interpretation in the trial court’s order, and petitioners’ challenge is thus without merit.
Although the issue of whether petitioners are entitled to a hearing is not relevant to this case (a hearing was, in fact, held), we note that, even after the hearing in the instant case, the trial court insists that petitioners are not entitled to a hearing. Although we decline to rule on the question, it would appear, by analogy to Goldberg v Kelly, 397 US 254; 90 S Ct 1011; 25 L Ed 2d 287 (1970), that due process would require a hearing on the termination of the subsidies in the case at bar.
The important question in this case is whether the trial court acted properly in terminating the subsidies. The court advanced two justifications for termination: (1) failure to file the annual report as required by MCL 710.48(3); MSA 27.3178(555.48X3), and (2) a finding of changed conditions in that petitioners’ motive for adopting the children had originally been their love and affection for the children, but their "emphasis” had substantially changed and the subsidies were being used to satisfy the debts of petitioners and not for the support of the children.
We find that the failure timely to file the annual report was not a proper ground for termination in the instant case. The report in question was due on April 22, 1978 (the subsidy order having been entered April 22, 1977). The subsidies were terminated for a short time due to the failure to file the report, whereupon petitioners submitted a report and the subsidies were reinstated. This occurred some three months prior to the second termina tion, which is the subject of this appeal. The testimony at the hearings of December 19 and 28 showed that the failure to file the report was not willful but was a mistake due in part to the fact that the attorney who had handled the original adoption proceeding had left town and was no longer advising petitioners.
It was unfair and an abuse of discretion for the trial court to "revive” the matter of the late report as a technical ground for again terminating the subsidies. The reporting requirement was substantially complied with, and in view of the purpose of the statute as discussed below, such an inconsequential technical violation should not be used to terminate a subsidy, since such a practice would undermine the incentive for adoption which the subsidy provides.
As a second ground for its decision, the trial court found that the motive of petitioners had changed, and that the subsidies were being used to satisfy the debts of petitioners with no benefit to the adopted children.
The statute allows termination of a subsidy on the basis of "changed conditions, other than financial conditions”. MCL 710.48(3); MSA 27.3178(555.48)(3). Unfortunately, there is no guidance given as to what is meant by changed conditions, and no case law addresses the question.
Petitioners draw an analogy to child support cases to suggest what the Legislature meant by "changed conditions”. In child support cases, one of the foremost concerns is the financial circumstances of the parties — their assets and their ability to earn money. Hakken v Hakken, 100 Mich App 460; 298 NW2d 907 (1980). This analogy must fail in the instant case because the Legislature has specifically excluded financial conditions from consideration in adoption subsidy cases.
An inference may be drawn from a reading of MCL 710.48(1); MSA 27.3178(555.48)(1) that the purpose of the subsidy is to encourage the adoption of children who are in foster care for over four months by relieving the financial burden of adoption. A reading of MCL 710.48(3); MSA 27.3178(555.48)(3) reveals that the subsidy, once granted, is meant to continue until the child reaches age 18, unless some change occurs which obviates the need for the subsidy. The fact that changed financial conditions are not to be considered as a ground for terminating the subsidy further supports the inference that the subsidy is intended as an incentive to the adoption.
We note also that the subsidy is, by the language of MCL 710.48(l)(a); MSA 27.3178(555.48)(a), a support subsidy. In plain language, this means that the subsidy is meant to compensate the adoptive parents for the expense incurred in caring for and raising the children. It is not, therefore, intended to provide a profit to the adoptive parents as an additional incentive to the adoption.
We therefore interpret the term "changed conditions” to mean at least an alteration of circumstances which causes the adoption to cease being a financial burden to the parents in the absence of the subsidy. This interpretation is supported by the fact that the specific events listed in the statute as triggering automatic termination are also those which terminate support expenses (emancipation, death and the reaching of the age of 18, which is presumably the age at which the child could accept responsibility for his own needs).
We cannot ignore the fact that the subsidy is also terminable as a penalty for failure to file the required annual report. This leads us to conclude that termination of the subsidy may also be used as a penalty for abuse of the subsidy. We therefore interpret the term "changed conditions” to include circumstances in which the subsidy funds are wrongfully diverted for uses other than the support of the children.
This is precisely the second ground for termination found and relied on by the trial court. It thus remains for us to determine whether the trial court’s findings of fact were clearly erroneous. Hartford Ins Group v Mile High Drilling Co, 96 Mich App 455, 461; 292 NW2d 232 (1980).
The trial court’s decision is clearly erroneous insofar as it states that the subsidies have been diverted to the benefit of petitioners to the exclusion of the adopted children. It is clear that the adopted children are living in the home of petitioners and are benefiting from the payment of petitioners’ appropriate expenses out of subsidy funds.
It is also true, however, that the record supports an inference that the subsidy funds may have been applied to discharge the obligations of petitioners beyond what is required to alleviate the financial burden of caring for the adopted children. What needs to be determined, but cannot be from the record as it now stands, is a question of accountability: whether petitioners have used an amount of money equivalent to the subsidies for the benefit of the adoptive children.
We believe that an honest assessment of the situation is that there has been no change in conditions but that from the outset the subsidies may have been, in part, misapplied. We also believe that there has been no willful abuse of the funds but that petitioners assumed in good faith that the subsidies could be used to enhance the home environment of the entire family.
Under our analysis, there is a question as to whether the trial court had adequate reason to terminate the subsidies. The statute vests the trial court with discretion, but since a proper exercise of discretion should be based on accurate information and since the petitioners should have an opportunity to present their case with respect to the concise issue involved, we remand the case for a further hearing at which petitioners may present evidence as to what extent the subsidies have been utilized for purposes attributable to the support of the children. If the court finds that a substantial portion of the funds have been utilized for other purposes, then it should enter its finding to that effect and the termination of the subsidies should stand.
Finally, we note a possible alternative. Because the hearings already held indicate that the adopted children are doing well and have been well cared for, the most equitable solution might be to reduce the subsidies to an appropriate level, if the level of payment, in fact, has been set so high that there remains a surplus that the petitioners have applied to their own debts.
Remanded for further proceedings in accordance with this opinion. | [
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Per Curiam.
On July 18, 1978, plaintiffs filed a complaint against defendants in the Wayne County Circuit Court alleging malpractice arising in the course of outpatient radiation therapy treatments received by plaintiff, Bernice Brown. Defendants filed a motion for accelerated judgment on the basis that Mrs. Brown had executed an agreement to arbitrate in accordance with Michigan’s medical malpractice arbitration act, MCL 600.5040 et seq.; MSA 27A.5040 et seq. The lower court held that the malpractice arbitration statute was constitutional and the contract recognized therein did not constitute a contract of adhesion. Consequently, on June 1, 1979, the court entered an order granting defendants’ motion for accelerated judgment. From this order, plaintiffs appeal as of right.
As concerns the contract of adhesion claim, all members of this panel have previously held that an arbitration agreement is not invalid on this basis. As to the constitutional claim, two of us have concluded that the statute presents no constitutional problems while Judge Bronson is of the contrary opinion. Judge Gillis’s views on these problems are set forth in Brown v Siang, 107 Mich App 91; 309 NW2d 575 (1981), while Judges Cynar and Bronson have expressed their positions in their respective opinions in Morris v Metriyakool, 107 Mich App 110; 309 NW2d 910 (1981). Since these are the only issues raised in respect to the hospital, the lower court’s order granting accelerated judgment in its favor is affirmed.
As to the individual doctor, another claim of error is asserted. The arbitration agreement executed by Mrs. Brown provided in pertinent part:
"I understand that this hospital and I by signing this document agree to arbitrate any claims or disputes (except for disputes over charges for services rendered) which may arise in the future out of or in connection with the health care rendered to me by this hospital, its employees and those of its independent staff doctors and consultants who have agreed to arbitrate.”
In this case, Mrs. Brown signed the arbitration agreement on June 2, 1976. However, it was not until December 22, 1976, that Dr. Considine signed a participation agreement with the hospital agree ing to arbitrate claims of medical malpractice. Plaintiffs contend that, if the arbitration agreement is valid, it nonetheless does not cover the action instituted against Dr. Considine. They argue that since Considine had not agreed to arbitrate as of June 2, 1976, Mrs. Brown’s contract with the hospital extends no benefit to him.
Preliminarily, we note that this issue was not raised in the lower court. As a general rule, the appellate courts of this state will not consider an issue raised for the first time on appeal. However, this rule is not inflexible and, where consideration of a claim not previously raised is necessary to a proper determination of the case, the general principle will not be applied. Dation v Ford Motor Co, 314 Mich 152, 160-161; 22 NW2d 252 (1946), Felcoskie v Lakey Foundry Corp, 382 Mich 438, 442; 170 NW2d 129 (1969). In the case sub judice, the scope of the arbitration agreement must be addressed to properly and fully resolve this matter. Furthermore, the issue does not require an analysis of facts not of record so that the factual posture of this case presents no impediment to our reaching the problem.
It is basic to the law of contracts that no contract can arise except on the expressed mutual assent of the parties. Woods v Ayres, 39 Mich 345, 351 (1878). A contract is made when both parties have executed or accepted it, and not before. Holder v Aultman, Miller & Co, 169 US 81, 89; 18 S Ct 269; 42 L Ed 669, 672 (1898). As stated in 17 Am Jur 2d, Contracts, § 15, p 353:
"Everyone has a right to select and determine with whom he will contract, and cannot have another person thrust on him without his consent. The rule that there must be a meeting of the minds to form a contract involves a common understanding of the identities of the parties. If one of the supposed parties is wanting, there is an absence of one of the formal constituents of a legal transaction, and there is no contract.” (Footnotes omitted.)
There is no doubt that the agreement in question covers the hospital. The agreement specifically provides for arbitration between "this hospital and I”. In respect to Dr. Considine, however, the agreement is ambiguous at best. We must determine whether the phrase "who have agreed to arbitrate” includes independent physicians who agreed to arbitrate only after the contract with the hospital was entered into and following the alleged acts of malpractice. Where a contract is prepared on behalf of one of the parties, any ambiguity therein will be strictly construed against that party. Keller v Paulos Land Co, 381 Mich 355, 362; 161 NW2d 569 (1968). In the instant case, plaintiffs had nothing to do with the preparation of the arbitration agreement with the hospital.
We agree with plaintiffs that under the contract as written, Dr. Considine is not within the scope of the agreement. Taken literally, the use of the term "who have agreed” refers to an action taken some time in the past. Furthermore, the arbitration agreement specifically refers to claims "which may arise in the future”. However, if Dr. Considine is allowed to claim the benefit of the agreement, at least insofar as he is concerned, the arbitration contract would be covering a claim of malpractice based upon acts which have occurred in the past. The arbitration agreement does not cover past acts of malpractice.
We further believe that the construction advanced by defendants exceeds the range of expectations of any knowledgeable patient who would read and execute the agreement. A hospital is not liable for the acts of a staff physician on a respondeat superior theory. Ravenis v Detroit General Hospital, 63 Mich App 79, 83-84; 234 NW2d 411 (1975), lv den 395 Mich 824 (1976), Bivens v Detroit Osteopathic Hospital, 77 Mich App 478, 487; 258 NW2d 527 (1977), rev’d on other grounds 403 Mich 820 (1978). Given that it is more likely that a patient will be harmed by his own doctor’s negligence, as opposed to the independent negligence of the hospital, it is plausible that a given patient would agree to arbitrate with the hospital, but not the doctor. Under defendant doctor’s proposed construction, even a patient who had consciously made this choice, knowing that his doctor had not agreed to arbitrate, could nonetheless lose his right to sue the physician in court if the latter subsequently executed a participation agreement with the hospital. Defendant doctor’s construction, then, allows the addition of new parties to the surprise of the patient. The unexpressed intention of Dr. Considine cannot bind plaintiffs anymore than Mrs. Brown’s unexpressed intention not to arbitrate if malpractice actually did occur can be used to negate the agreement with the hospital.
Defendants also argue that this question was resolved adversely to plaintiffs’ position in Kukowski v Piskin, 99 Mich App 1; 297 NW2d 612 (1980). We find Kukowski easily distinguishable. In Kukowski, plaintiff asserted that she was unaware of her doctor’s agreement to arbitrate, had entered into agreements with, two hospitals only, and had not agreed to arbitrate with the doctor. The arbitration agreements entered into by the plaintiff in Kukowski were identical to the one under consideration here and specifically referred to independent staff doctors "who have agreed to arbitrate”. Thus, the plaintiff in Kukowski was attempting to ignore a portion of the agreements she had executed. No allegation was made by the plaintiff in Kukowski that, at the time she executed the arbitration agreements with the hospitals, her physician had not yet agreed to arbitrate. If the malpractice arbitration act is constitutional, as a majority of this panel believes, Kukowski is correctly decided and is simply not material to the issue under consideration here.
Defendants also rely on the principle that arbitration agreements are to be liberally construed in favor of arbitrability. See Maryland Casualty Co v McGee, 32 Mich App 539; 189 NW2d 44 (1971), Detroit Automobile Inter-Ins Exchange v Reck, 90 Mich App 286; 282 NW2d 292 (1979), lv den 407 Mich 870 (1979). The question in this case, however, is not the arbitrability of a particular issue where a concededly binding contract between the parties to arbitrate exists. Instead, we are confronted with the problem of whether an arbitration contract even exists in respect to Dr. Considine.
Defendants point to the loss of benefits provided by arbitration if the doctor is subject to suit in the courts. The fact is, however, that nothing in the medical malpractice arbitration act requires a plaintiff who has agreed to arbitrate with the hospital to also arbitrate with the doctor. Indeed, had Dr. Considine never executed a participation agreement with the hospital, the need for litigation in two forums would be obvious.
Affirmed in part; reversed in part. No costs, since, at the time this case was submitted, the issues raised involved substantial problems of statutory construction not previously addressed. | [
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M. F. Cavanagh, P.J.
We adopt the facts of this case as they are presented by our brother Burns in his dissent.
There is a difference of opinion among judges of the Court of Appeals as to whether the require ment of the R. Hood-McNeely-Geake Malpractice Arbitration Act (MAA), MCL 600.5040 et seq.; MSA 27A.5040 et seq., that one member of the three-member arbitration panel be a hospital administrator or physician violates a patient’s due process rights. Two recent cases from this Court addressed this issue and held that that requirement does not infringe unconstitutionally upon the due process right to a hearing before a fair and impartial tribunal. See Judge Cynar’s opinion in Morris v Metriyakool, 107 Mich App 110; 309 NW2d 910 (1981), and Brown v Siang, 107 Mich App 91; 309 NW2d 575 (1981).
We find the reasoning in Brown, supra, to present the better view on the issue sub judice. Based upon the reasoning presented there and in Morris, supra, we affirm the trial court’s decision.
Affirmed.
R. H. Campbell, J., concurred. | [
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Per Curiam.
On August 16, 1979, defendant was convicted of conspiracy to deliver a controlled substance and sentenced to 5 years probation with the first 4 months in county jail. After serving the 4 months in jail defendant was released. On April 11, 1980, defendant was found guilty of violation of his probation. On April 21, 1980, defendant was sentenced to 4 to 7 years imprisonment. Defendant was not credited with the 4 months incarceration which was part of the probation order. Defendant appeals as of right.
The only issue on appeal is whether a trial court must credit a defendant for the time spent in jail as a condition of probation when imposing sentence after the defendant’s probation has later been revoked. This Court has answered this question in both the affirmative and the negative. Holding no credit is due are People v Jaynes, 23 Mich App 360; 178 NW2d 558 (1970), People v Westman, 53 Mich App 662; 220 NW2d 169 (1974), People v Finn, 74 Mich App 580; 254 NW2d 585 (1977), People v Risher, 78 Mich App 431; 260 NW2d 121 (1977), and People v Sturdivant, 97 Mich App 711; 296 NW2d 157 (1980). Holding credit must be given are the strong dissent in Sturdivant, supra, and the unanimous decision in People v Stanley Robinson, 99 Mich App 623; 299 NW2d 13 (1980).
We find the reasoning in Stanley Robinson, supra, to be persuasive and adopt it as our own.
Remanded for entry of credit in conformity with this opinion. | [
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Bashara, P.J.
Defendant appeals from a guilty plea conviction of armed robbery, MCL 750.529; MSA 28.797.
Defendant contends that the trial court committed reversible error by failing to advise him that his plea was made under MCL 791.233b; MSA 28.2303(3). That recently enacted statute did away with "good time” provisions for certain offenses, including armed robbery.
There is no requirement, by court rule or statute, that the court advise defendant that "good time” is not available. People v Richards, 106 Mich App 16; 307 NW2d 692 (1981). This contention is without merit.
We have examined defendant’s other allegations of error and find that they are frivolous.
Affirmed.
Beasley, J., concurred. | [
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] |
D. F. Walsh, J.
On March 5, 1981, defendant pled guilty to the offense of unlawfully driving away a motor vehicle (UDAA), MCL 750.413; MSA 28.645, and to being a second felony offender, MCL 769.10; MSA 28.1082. He was sentenced to from 5 to 7-1/2 years in prison.
Defendant argues that his plea-based conviction should be set aside because an earlier, tentative plea-bargain agreement was not fulfilled by the prosecutor.
On December 18, 1979, defendant was arraigned in district court on the charge of unlawfully driving away a motor vehicle. At a proceeding in the district court on December 28, 1979, defense counsel indicated that a tentative plea-bargain agreement had been reached in which defendant agreed to give a statement to the police concerning uncharged offenses involving defendant or other individuals. Defendant agreed to submit to a polygraph examination to verify his statement. If verification was established, the prosecution agreed to charge defendant with the violation of an offense carrying a maximum sentence of four years imprisonment. If the polygraph results were negative, the prosecutor could proceed on the original charge. Defendant also was granted immunity from prosecution for any information contained in the statement and agreed to an unconditional waiver of preliminary examination on any charge arising from the agreement.
Defendant then was bound over to the circuit court for an arraignment on January 21, 1980. The arraignment was subsequently waived by defendant. Ori January 22, 1980, the prosecutor filed a supplemental information charging defendant as a fourth felony offender, MCL 769.12; MSA 28.1084.
On March 5, 1980, defendant entered into another, totally separate plea agreement pursuant to which the instant plea of guilty was offered and accepted by the circuit court. The record of the March 5, 1980, plea-taking proceeding indicates that the court fully complied with the court rule. GCR 1963, 785.7. Defendant voluntarily entered his plea of guilty and admitted that he was guilty of the offenses. Defendant’s contention that this March 5, 1980, guilty plea should be set aside because of an alleged failure on the part of the prosecutor to fulfill the earlier tentative plea agreement is without merit. Defendant abandoned that claim in the circuit court. The record before us is devoid of any evidentiary support for it. We are precluded from considering it. People v Serr, 73 Mich App 19; 250 NW2d 535 (1976). Moreover, by entering a valid, knowing, and voluntary guilty plea, defendant waived any alleged defect with respect to the prior tentative agreement.
Defendant next contends that the circuit court erred in failing to quash the supplemental information charging him as a fourth felony offender which was filed by the prosecutor on January 22, 1980. This supplemental information was filed (a) 25 days after the filing of the information charging the principal offense of UDAA and one day after the date scheduled for the arraignment on that information in the circuit court, (b) 43 days prior to defendant’s plea-based conviction on the UDAA charge, and (c) 35 days after defendant’s arraignment on the UDAA warrant in the district court. During this 35-day period prior to the filing of the supplemental information, plea negotiations were carried on which resulted in the original tentative plea-bargain agreement.
At issue is whether, under these circumstances, the supplemental information was filed "promptly” as required by People v Fountain, and its companion case People v Jones, 407 Mich 96, 98; 282 NW2d 168 (1979). More precisely the i6ssue is whether Fountain's prompt filing requirement mandates that the supplemental information be filed "with the information which charged the last felony * * id., 99, or "prior to the initiation of any plea negotiations”, People v Martin, 100 Mich App 447, 459; 298 NW2d 900 (1980), or "prior to conviction on the current charge * * People v Stratton, 13 Mich App 350, 356; 164 NW2d 555 (1968).
We rule that Fountain requires that a prosecutor who has notice of a defendant’s previous convictions must file a supplemental information charging the defendant as an habitual offender prior to the defendant’s trial on a current felony charge. The effect of the Fountain decision was to make mandatory the procedure first announced in Stratton, supra, and later approved by the Supreme Court in People v Hatt, 384 Mich 302, 309; 181 NW2d 912 (1970).
In Stratton, supra, 356, a panel of this Court declared that:
"[W]here it appears to the prosecutor before conviction of the current charge that the accused person is a prior felon, the accused person is to be informed against as a prior offender prior to conviction on the current charge * * *.” (Emphasis supplied.)
In Hatt, supra, the Supreme Court "approved” the Stratton procedure. In People v Marshall, 41 Mich App 66, 71-74; 199 NW2d 521 (1972), a panel of this Court held that it was not mandatory for a prosecutor to follow the Stratton-Hatt procedure unless failure to do so would deny the defendant due process of law. This set the stage for Fountain.
The precise issue to be decided in Fountain was clearly stated by the Supreme Court at the very outset of its opinion:
"Is it permissible to enhance sentence under the habitual offenders act if the prosecutor has reliable information pertaining to a person’s prior felony record before trial but does not charge the person as an habitual offender until after conviction is entered on the current felony charge?” (Footnote omitted.) (Emphasis supplied.) Fountain, supra, 97._
The Court resolved this issue in the negative. As authority for its decision, the Court cited Hatt, supra, and Stratton, supra.
Although later in the opinion the Court stated nondecisionally that in the cases of Fountain and Jones the "habitual offender charges should have been hied with the information which charged the last felony * * *” (emphasis supplied), Fountain, supra, 99, the Court did not rule that it was mandatory to do so. Moreover, we find nothing in the Fountain decision or in any of the decisions upon which it is premised which would preclude a prosecutor from proceeding on recidivist charges against a defendant because the supplemental information containing those charges was not filed simultaneously with the information charging the current offense as long as the supplemental information is filed before trial on the current offense.
Further support for this interpretation of Fountain’s prompt filing requirement can be found in the following statement from Justice Levin’s concurring and dissenting opinion in People v Young, 410 Mich 363, 368; 301 NW2d 803 (1981), in which the Supreme Court ruled on the retroactivity of the Fountain rule:
"I would vacate the habitual offender charge and reinstate the original sentence or remand for resentencing in any case where a defendant with prior felony convictions was not charged as an habitual offender until after conviction of the current felony, subject to the prosecutor’s right to show that he did not know, and should not have been on notice, of the prior convictions.” (Emphasis supplied.)_
In Martin, supra, a panel of this Court, which included this writer, attempted to reconcile Fountain with Marshall and other pre-Fountain cases which related to the Fountain issue. We held that the purpose for the Fountain rule was two-fold, first, to provide fair notice to the accused and, second, to avoid the appearance of prosecutorial impropriety. We further held that with respect to the fair notice aspect of the Fountain decision, Fountain merely restated prior law.
That holding was based upon the premise that the fair notice purpose of Fountain referred to the notice required to be given to any defendant, both pre-Fountain and post -Fountain, by virtue of the right of every citizen to due process of law. We concluded that insofar as the Fountain decision required that type of notice, it merely restated what had always been the law.
With respect to the second purpose for the rule, i.e., to avoid the appearance of prosecutorial im propriety, we concluded that this purpose was separate from and independent of the notice purpose and required an even earlier filing of the supplemental information than was mandated by due process. We reasoned that to accomplish this purpose the Court was establishing a new prophylactic rule that required filing "with the information which charged the last felony” (Fountain) or at least "prior to the initiation of plea negotiations” (Martin) so that it would not appear that the prosecutor was using the threat of supplementation improperly for the purpose of coercing a plea.
In Young, supra, 367, however, the Supreme Court made it clear that the Fountain decision established a new procedural rule with a single purpose, i.e., to avoid the appearance of prosecutorial impropriety.
"The rule established in Fountain is procedural in nature * * *.”
"[t]he purpose of the rule is to avoid an appearance of prosecutorial impropriety * * (Emphasis supplied.)
Where Fountain, supra, 99, had said "to provide fair notice * * * and avoid an appearance of * * * impropriety”, Young, supra, 367, said "to provide fair notice * * * so as to avoid the appearance of * * * impropriety * * *”. (Emphasis supplied.)
The fair notice referred to in Fountain, therefore, is not the notice required by due process of law but rather a notice in excess of what is required by due process which the Court now requires prophylactically to avoid even the appearance of prosecutorial impropriety.
Since the premise on which we based our conclu sions in Martin, supra, is no longer valid, those conclusions are no longer valid. We are no longer persuaded, therefore, that a prosecutor who has knowledge of a defendant’s prior felonies must file habitual offender charges simultaneously with the current charge or at least prior to the initiation of plea negotiations.
In this case since the supplemental information was filed nearly a month and a half prior to the entry of the guilty plea the Fountain rule was satisfied.
Affirmed.
In Marshall, supra, 71-73, the Court stated:
"The holding of [In re Brazel, 293 Mich 632; 292 NW 664 (1940)] and Stratton does not, however, make it mandatory on the part of the prosecutor to proceed against an accused as a subsequent offender prior to conviction, but is merely permissive in that it allows the prosecutor to so proceed.
"Clearly, the prosecutor has discretion to file a supplemental information under the habitual criminal act after conviction, and is not limited to filing such supplemental information prior to conviction of a current charge, where he has knowledge of the previous conviction.”
However, the Court also stated:
"[W]here no good reason exists for the delay in filing a supplemental information charging the defendant as a subsequent offender, and the delay on the part of the prosecutor substantially prejudices defendant’s rights, the filing of that supplemental information clearly denies defendant his right to due process of law.” Id., 74.
Because of the fact that the purpose for the Fountain rule is to avoid even the appearance of prosecutorial impropriety, a prosecutor would still be well-advised, despite our ruling in this case, to initiate recidivist proceedings at the earliest possible stage of the criminal process.
In her concurring opinion, Chief Justice Coleman, joined by Justice Ryan, expressed some doubt that the result reached by the majority, at least in Jones, was statutorily or constitutionally required.
"Although the result in Jones may not be statutorily or constitutionally required, especially in the absence of any allegation or showing of prejudice from the delay, it is based on this Court’s supervisory powers over the practices and procedures used in the courts of this state.” (Footnote omitted.) Fountain, supra, 99-100 (Coleman, C.J., concurring).
Our holding in Martin was also influenced by the fact that, with respect to the need for the prosecutor to proceed promptly, the Supreme Court did not state that it was establishing a new rule but rather indicated that it was applying the rule established previously in Stratton, supra, and Hatt, supra. Moreover, it described the Stratton-Hatt rule as a rule so well established that it recognized only one exception, i.e., where the delay was due to the need to verify out-of-state convictions. Fountain, supra, 98-99. In Young, supra, 367, however, a majority of the Court described the rule applied in Fountain as a new rule established by the Fountain decision. "The rule established in Fountain is procedural in nature, mandating how a prosecutor must proceed when charging a defendant as an habitual offender pursuant to a supplemental information.” (Emphasis supplied.) | [
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Beasley, J.
The six minor plaintiffs, whose ages range from 6 to 15, brought an action against defendant, American Multi-Cinema, Inc., alleging age discrimination under the Michigan Civil Rights Act. The following findings of fact by the trial judge were undisputed by the parties:
"On or about January 16, 1979, the four Cheeseman children who are plaintiffs in this lawsuit were denied admission to the defendant’s theater in Meridian Mall where the movie 'Animal House’ was showing. Their parents, William B. Cheeseman, Sr., and Linda Cheese-man, had accompanied them to the theater and attempted to purchase tickets for them. Since their parents did not intend to attend the movie with the Cheeseman children, the defendant denied admission to them because they were minors.
"On or about January 7, 1979, Mark Rilling purchased tickets for his two stepchildren, Scott Hamilton and Richard Hamilton, so that these minors might attend the movie 'Animal House’ at defendant’s theater in the Meridian Mall in Ingham County, Michigan. Scott Hamilton and Richard Hamilton were admitted to see the movie 'Animal House’, but upon the defendant’s agents observing that they were not accompanied by an adult, Scott Hamilton and Richard Hamilton were ejected from the theater and not permitted to see the movie 'Animal House’.
"During its exhibition of 'Animal House’ at the Meridian Mall theater, the defendant’s admission policy was to admit persons under age 18 to see the film only if accompanied into the theater by a parent or an adult guardian. Defendant would have permitted the minors to see the movie 'Animal House’ had they been accompanied by a parent or an adult guardian.
"There is no dispute as to these facts. The defendant refused six unchaperoned children, ages 6-15, inclusive, admission to sit through the film 'Animal House’. This is an 'R’ rated film.” (Citations omitted.)
Plaintiffs demanded an injunction enjoining defendant and its agents from denying the minor plaintiffs admittance to its theaters on the basis of age. In response to the complaint, defendant filed an answer and a motion for summary judgment. Prior to the hearing on defendant’s motion, plaintiffs filed an answer to the motion and also moved for summary judgment.
After a hearing on the motions, the trial court issued a written opinion and entered an order granting summary judgment to defendant, denying plaintiffs’ cross-motion, and awarding attorney fees to defendant. Plaintiffs appeal as of right.
On appeal, we hold that defendant theater may deny admission to these six children to view the "R” rated movie "Animal House” when unaccompanied by a parent or legal guardian, even though consent was given by a parent or legal guardian, by virtue of the "except where permitted by law” exception in the statute.
Plaintiffs’ claim for relief rests entirely upon the Michigan Civil Rights Act. No constitutional issue is raised or involved. Section 102 of the statute provides:
"The opportunity to obtain employment, housing and other real estate, to refuse polygraph, psychological stress evaluation, or similar tests in employment situations, and the full and equal utilization of public accommodations, public service, and educational facilities without discrimination because of religion, race, color, national origin, age, sex, height, weight, or marital status as prohibited by this act is recognized and declared to be a civil right.” (Emphasis added.) MCL 37.2102; MSA 3.548(102).
Section 301 defines the term "place of public accommodation” as follows:
"(a) 'Place of public accommodation’ means a business, or an educational, refreshment, entertainment, recreation, health, or transportation facility, or institution of any kind, whether licensed or not, whose goods, services, facilities, privileges, advantages, or accommodations are extended, offered, sold, or otherwise made available to the public.” (Emphasis added.) MCL 37.2301(a); MSA 3.548(301)(a).
Section 302 provides:
"Except where permitted by law, a person shall not:
"(a) Deny an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or public service because of religion, race, color, national origin, age, sex, or marital status.” (Emphasis added.) MCL 37.2302; MSA 3.548(302).
Thus, this civil rights legislation has a two-sided thrust. One relates to certain defined activities which are declared to be civil rights possessed by each of us. Relevant here is the civil right to be free from discrimination based on age, except where permitted by law.
The other side of the statute relates to limitations placed on each of us. A person is prohibited from denying to anyone full and equal enjoyment of the facilities of a place of public accommodation because of age, except where permitted by law.
The latter emphasized portion is clear indication of the intent of the Legislature to retain and apply a practical rule of reason to the prohibition against discrimination on the basis of age. Otherwise, literal application of the prohibition against age discrimination would outlaw many regulations, rules, laws and policies designed to protect children. We believe it is clear that, by adding the words "except where permitted by law”, the Legislature intended, among other things, to retain age discrimnation as a protection to children.
In ascertaining and giving effect to the intention of the Legislature, we follow the teleological approach adopted in People v McFarlin. as in Salas v Clements, we seek a construction of the statute that will avoid an absurd result.
In interpreting the words "except where permitted by law”, we do not believe the Legislature intended to mean only "statutory law”. If the Legislature had so intended, it could easily have so indicated. Rather, the Legislature intended "law” to mean the common law and the constitutional law in addition to statutory law. The cases support this conclusion. For example, in Dauer v Zabel, we said:
" 'The law of a state is to be found in its statutory and constitutional enactments as interpreted by its courts and, in the absence of statute law, in the rulings of its courts.’ ”
The common law forms an essential part of the "law” of this state.
At common law, owners of movie theaters are liable for foreseeable injuries to their patrons. Furthermore, an owner who invites a minor onto his premises has a duty of due care which must take into account the immaturity and inexperience of the minor.
In Moning v Alfono, the Court said:
" 'One has no right to demand of a child, or of any other person known to be wanting in ordinary judgment or discretion, a prudence beyond his years or capacity, and therefore in his own conduct, where it may possibly result in injury, a degree of care is required commensurate to the apparent immaturity or imbecility that exposes the other to peril.’ ”
This recognition by the Court of children’s limitations led to its holding that it was reasonable to deny them access to certain dangerous articles (for example, slingshots, in Moning). Also, producers and exhibitors of motion pictures have been faced with liability for allowing minors access to sexu ally explicit or violent films, even where such films were not obscene for minors.
Thus, it can be argued that refusing admission of unescorted children to motion pictures designed for mature audiences is not only "permitted” but may be actually required to avoid civil liability.
The dissimilarity between children and adults has been recognized and used as a basis for restricting children’s access to certain materials. in Ginsberg v New York, the United States Supreme Court was faced with deciding whether a New York criminal obscenity statute, which prohibited sale to minors under 17 of material defined to be obscene, was constitutional. Defendant had argued that, since the material was not legally obscene for adults, constitutional freedom of expression could not be limited by a statute denying minors under 17 access to such material.
The Supreme Court rejected defendant’s claims, finding no invasion by the New York statute of "minors constitutionally protected freedoms”, saying, among other things:
"That the State has power to make that adjustment seems clear, for we have recognized that even where there is an invasion of protected freedoms 'the power of the state to control the conduct of children reaches beyond the scope of its authority over adults * *
"The well-being of its children is of course a subject within the State’s constitutional power to regulate, and, in our view, two interests justify the limitations in § 484-h upon the availability of sex material to minors under 17, at least if it was rational for the legislature to find that the minors’ exposure' to such material might be harmful. First of all, constitutional interpretation has consistently recognized that the parents’ claim to authority in their own household to direct the rearing of their children is basic in the structure of our society. "It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.’ * * * The legislature could properly conclude that parents and others, teachers for example, who have this primary responsibility for children’s well-being are entitled to the support of laws designed to' aid discharge of that responsibility. Indeed, subsection l(f)(ii) of § 484-h expressly recognizes the parental role in assessing sex-related material harmful to minors according 'to prevailing standards in the adult community as a whole with respect to what is suitable material for minors.’ Moreover, the prohibition against sales to minors does not bar parents who so desire from purchasing the magazines for their children.
"The State also has an independent interest in the well-being of its youth. * * *” (Citations and footnotes omitted; emphasis added.)
Subsequent to Ginsberg, Michigan enacted a statute prohibiting the distribution of "obscene” matter to minors, which affords a permitted basis for a type of age discrimination.
Section 5 of this statute provides, in part:
"Sec. 5. (1) A person is guilty of distributing obscene matter to a minor if that person does either of the following:
"(a) Knowingly disseminates to a minor sexually explicit visual or verbal material that is harmful to minors.
"(b) Knowingly exhibits to a minor a sexually explicit performance that is harmful to minors.
"(2) A person knowingly disseminates sexually explicit matter to a minor when the person knows both the nature of the matter and the status of the minor to whom the matter is disseminated.
"(3) A person knows the nature of matter if the person either is aware of the character and content of the matter or recklessly disregards circumstances suggesting the character and content of the matter.”
This section does not apply to the dissemination of sexually explicit matter to a minor by the minor’s parent or guardian. The statute prohibiting the distribution of "obscene” matter to minors includes the following definitions:
"Sec. 4. As used in this act:
"(a) 'Harmful to minors’ means sexually explicit matter which meets all of the following criteria:
"(i) Considered as a whole, it appeals to the prurient interest of minors as determined by contemporary local community standards.
"(ii) It is patently offensive to contemporary local community standards of adults as to what is suitable for minors.
"(iii) Considered as a whole, it lacks serious literary, artistic, political, educational, and scientific value for minors.
"(b) 'Local community’ means the county in which the matter was disseminated.”
We conclude that, under Michigan law, theaters have a right to treat children differently than adults. Under the Michigan Civil Rights Act, what might otherwise be unlawful age discrimination is permitted by law where, as here, it is designed for the protection of children. Against this background, we give consideration to the film ratings utilized by defendant and now employed by most moving-picture theaters.
Part of the impetus for the movie rating system came from parents who wanted prior information about films that their children might be viewing. It is safe to say that not all parents feel as do the parents and guardians of these plaintiffs about what their children may see and be exposed to. It is not relevant here as to which point of view is in the majority.
But, in fairness to defendant, the rating system instituted by the Motion Picture Association of America around 1968, and for which ratings film makers pay, is in part an effort to meet a public demand for a method by which to discover and decide what their children should not see.
The Classification and Rating Administration of the Motion Picture Association of America classifies movies as "G” (general audiences), "PG” (parental guidance), "R” (restricted, children under 17 must be accompanied by parent or guardian), and "X” (no one under 17 admitted).
A motion picture is rated "R” if it is adult in some significant respects such as theme, nudity, sex, language or violence, but does not contain such an accumulation of brutal or sexually connotative language or of explicit sex or excessive and sadistic violence as to result in an “X” rating.
The "R” rating is intended to warn parents that a film is adult in content or theme and may contain either nudity, sex, rough sexually connotative language, hard violence or a combination of the same. In Michigan, children under 18 are admitted to "R” films only if they are accompanied into the theater by a parent or adult guardian.
While film makers are not required to have their films rated, many exhibitors around the country will not hire and show an unrated film. Obviously, this system is far from perfect and is not on trial here. However, it is at this time the chief, if not only, national film rating system in operation and, as indicated, it arose from a public clamor for some protection from films that some believed were objectionable.
Defendant says that its admission policy follows these ratings. As indicated, the movie "Animal House” was rated "R”. Thus, defendant refused to permit plaintiff children from viewing "Animal House” unless accompanied by a parent or legal guardian.
We do not believe the Legislature intended to prohibit a film exhibitor from using this rating system to preclude unescorted children from viewing "R” rated films. On the contrary, we believe this admission policy for children is a reasonable method of seeking to comply with the juvenile obscenity statute and with the common-law duties imposed on those who make entertainment available to children.
The civil rights of these children, ages 6 through 15, were not violated by prohibiting them from viewing this film except in the company of a parent or guardian. In this connection, the purpose of the rating system is protection of the children. The fact that the parents and guardians of these particular children have a different point of view is not relevant to whether or not there is a violation of the civil rights statute. We hold that defendant’s actions here come within the exception, i.e., use of the rating system to deny admission to unescorted children is permitted by law. It is not an unlawful age discrimination.
In so holding, we point out again that there is no constitutional issue asserted here, and we agree that no constitutional issue is present. Our decision rests upon interpetation of the statute and ascertaining the legislative intention.
Plaintiffs’ interpretation of the statute would seem to grant children unfettered and uncontrolled access to the adult world in a way which the Legislature did not intend. We should avoid construing the statute in a way that would produce absurd and undesirable results. In prohibiting age discrimination, the act contemplates only that "similarly situated people” be treated equally, but children and adults are not similarly situated people in most circumstances.
There then remains the question of whether the legal right of parents to control their children cuts across defendant’s right to use a rating plan to exclude unescorted children.
We recognize the primary responsibility of parents for the care, control and upbringing of their children. At the same time, we do not believe we limit that broad, sweeping authority when we hold that defendant theater may establish rules for viewing movies. The choice remains with the parents as to what the children view. But, that choice does not extend to a right to violate the theater’s rules under the rating system.
While we affirm the trial court’s award of summary judgment to defendant, we do not necessarily subscribe to all that he has said in his opinion. Under our analysis, we do not find it necessary to express an opinion regarding the content of the movie "Animal House”. Our result does not depend on whether or not it is an obscene film.
In summary, we hold that some discrimination between adults and children is permitted by law; that in the civil rights statute the term "law” includes the entire body of law including but not limited to the constitution, the statutes, administrative rules and regulations, and the common law as embodied in decisions and judgments of courts; that theaters, such as defendant, are permitted by law to distinguish between adults and children for purposes of admission to a theater; that, in seeking to protect children, theaters may utilize a rating system such as used here to advise prospective patrons of the nature and content of movies to be shown; that the Civil Rights Act is not intended to and does not afford to children independent judicial review of the rating of each "R” or "X” rated movie; and that denial of admission to unescorted children is permitted by law.
Last, we set aside the award of attorney fees to defendant. Although the statute authorizes award of attorney fees to successful complainants of violations under the Civil Rights Act, no provision is made for award of attorney fees to defendants. Consequently, there is no special statutory basis here for award of substantial attorney fees. Since we do not believe plaintiffs’ claims hereunder are made in bad faith, there is no basis for such an award of attorney fees under either GCR 1963, 116.5 or GCR 1963, 117.3. Furthermore, the fact that the issues that plaintiffs attempt to raise are essentially of first impression leads us to deny any award of attorney fees.
Affirmed in part and reversed in part. No costs.
R. M. Maher, J., concurs in the result only.
MCL 37.2101 et seq.; MSA 3.548(101) et seq., which is often referred to as the Elliott-Larsen Civil Rights Act and was enacted in 1976.
389 Mich 557, 564-565; 208 NW2d 504 (1973).
399 Mich 103; 247 NW2d 889 (1976).
9 Mich App 176, 180; 156 NW2d 34 (1967), quoting 52 CJS, Law, p 1025, now 52A CJS, Law, p 739.
Myers v Genesee County Auditor, 375 Mich 1, 7; 133 NW2d 190 (1965), Beech Grove Investment Co v Civil Bights Comm, 380 Mich 405, 428; 157 NW2d 213 (1968).
Earle v Colonial Theatre Co, 82 Mich App 54; 266 NW2d 466 (1978), Lane v B & J Theatres, Inc, 314 Mich 666; 23 NW2d 120 (1946).
See, Moning v Alfono, 400 Mich 425; 254 NW2d 759 (1977), Kreiner v Yezdbick, 22 Mich App 581; 177 NW2d 629 (1970).
Moning, supra, 447-448.
National Broadcasting Co, Inc v Niemi, 434 US 1354; 98 S Ct 705; 54 L Ed 2d 742 (1978), Olivia N v National Broadcasting Co, Inc, 74 Cal App 3d 383; 141 Cal Rptr 511 (1977).
See, Ginsberg v New York, 390 US 629, 638; 88 S Ct 1274; 20 L Ed 2d 195 (1968).
Id.
Ginsberg, supra, 638-640.
MCL 722.671 et seq.; MSA 25.254(1) et seq. The new statute replaced MCL 750.343e; MSA 28.575(5), which also afforded a permitted basis for a type of age discrimination in dealing with the distribution of obscene materials.
MCL 722.675; MSA 25.254(5).
MCL 722.676(a); MSA 25.254(6)(a).
We would guess the parents and guardians of these plaintiffs are, at this point in time, a distinct minority.
Defendant represents that it is a member of the National Association of Theatre Owners (NATO) and that it abides by the rating system of the film industry, which system is a joint effort of the Motion Picture Association of America, NATO and the International Film Importers and Distributors of America.
For purposes here, we consider guardians in loco parentis and, thus, when we speak of parents, we include legal guardians.
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Per Curiam.
On December 6, 1979, defendant was convicted by a jury of two counts of delivery of marijuana, MCL 335.341; MSA 18.1070(41), and one count of conspiracy to deliver marijuana, MCL 750.157a; MSA 28.354(1). In another jury trial, on December 11, 1979, defendant was convicted of delivery of cocaine. MCL 335.341; MSA 18.1070(41). These four convictions were obtained under the Controlled Substances Act of 1971, since repealed and replaced, 1978 PA 368. Defendant appeals from all four convictions. Since many of the issues raised are common to both appeals, the cases have been consolidated.
Defendant was arrested and incarcerated in Ohio on December 9, 1978. While incarcerated, on December 10, 1978, a detainer was lodged against the defendant by the Bay City prosecutor’s office.. On December 15, 1978, defendant learned that a detainer was lodged against him. Defendant was sentenced in Ohio in February, 1979, and pursuant to the interstate agreement on detainers (hereinafter IAD), MCL 780.601; MSA 4.147(1), a detainer again was placed against him in March, 1979.
On July 18, 1979, the prosecutor’s office requested that the governor of Ohio immediately approve the defendant’s release to Michigan. The request was granted; defendant returned to Michigan on August 28, 1979, and was arraigned on August 30, 1979.
The defendant brought motions to dismiss based on noncompliance with Articles III and IV of the IAD and denial of his right to a speedy trial, which were denied. The defendant filed an applica tion for leave to appeal to this Court which was denied on December 11, 1979.
The first issue on appeal is whether or not the IAD, MCL 780.601 et seq.; MSA 4.147(1) et seq., was violated in two respects. The defendant claims that letters sent to his wife, or at least the copy of a letter which his Ohio attorney forwarded to the prosecutor’s office, substantially complied with the notice requirements set forth in Article III of the IAD and thereby the convictions must be dismissed. We disagree.
Article III provides, in part, as follows:
"(a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officers’ jurisdiction written notice of the place of his imprisonment and his request for a ñnal disposition to be made of the indictment, information or complaint * * *.” (Emphasis supplied.)
Article V(c) of the IAD provides the following remedy in the event that Article III is violated:
"(c) If the appropriate authority shall refuse or fail to accept temporary custody of said person, or in the event that an action on the indictment, information or complaint on the basis of which the detainer has been lodged is not brought to trial within the period provided in Article III or Article IV hereof, the appropriate court of the jurisdiction where the indictment, information or complaint has been pending shall enter an order dis missing the same with prejudice, and any detainer based thereon shall cease to be of any force or effect.
This Court on several occasions has stressed that the notice requirement of the IAD must be complied with strictly. People v Beamon, 83 Mich App 121; 268 NW2d 310 (1978), Edmond v Dep’t of Corrections, 78 Mich App 196, 202; 259 NW2d 423 (1977). The defendant did not give the required written notice to the prosecutor to invoke the act. Informal letters do not satisfy the notice requirment of the act. Id.
The defendant claims that Article IV(a) of the IAD was violated when he was not afforded a hearing prior to his transfer to Michigan. We summarily reject this claim. Article IV(a) provides:
"The appropriate officer of the jurisdiction in which an untried indictment, information or complaint is pending shall be entitled to have a prisoner against whom he has lodged a detainer and who is serving a term of imprisonment in any party state made available in accordance with Article V(a) hereof upon presentation of a written request for temporary custody or availability to the appropriate authorities of the state in which the prisoner is incarcerated: Provided, That the court having jurisdiction of such indictment, information or complaint shall have duly approved, recorded and transmitted the request: And provided further, That there shall be a period of 30 days after receipt by the appropriate authorities before the request be honored, within which period the governor of the sending state may disapprove the request for temporary custody or availability, either upon his own motion or upon motion of the prisoner.”
The right to contest the delivery to another state is lost when an inmate, who contests the legality of delivery to the other state, fails to move the governor of the sending state to disapprove the transfer. Cody v Morris, 623 F2d 101 (CA 9, 1980), State v Thompson, 133 NJ Super 180; 336 A2d 11 (1975).
The defendant contends that his right to a speedy trial, guaranteed by the Sixth Amendment, was violated. In People v Grimmett, 388 Mich 590, 605-606; 202 NW2d 278 (1972), pursuant to Barker v Wingo, 407 US 514; 92 S Ct 2182; 33 L Ed 2d 101 (1972), the Michigan Supreme Court adopted the following balancing test to resolve denial of speedy trial claims:
" 'Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.’ ”
Recently this Court has held that failure to assert the right to a speedy trial is strong support that the constitutional guarantee was not violated. People v Ewing, 101 Mich App 51, 55; 301 NW2d 8 (1980). The Supreme Court in Barker, supra, 532, also emphasized that "failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial”.
The defendant first mentioned the speedy trial issue in a motion to dismiss heard on November 26, 1979. This cannot be construed as an assertion of the right to a speedy trial since this motion contended that the defendant’s rights already had been violated. Therefore, the factor in Grimmett, supra, namely, that defendant assert his right to a speedy trial, is not satisfied. Prejudice to the defendant’s case is not presumed until the passage of 18 months. People v Collins, 388 Mich 680; 202 NW2d 769 (1972). The defendant argues that the right to a speedy trial accrues when a warrant for arrest is issued. Under this analysis there would be a 26- month delay. However, United States v Marion, 404 US 307; 92. S Ct 455; 3 L Ed 2d 468 (1971), held that the right to a speedy trial is not triggered until a person is arrested. Only 12 months passed between the time when the defendant was arrested in Ohio and the time when he was ultimately brought to trial in Michigan. Where 12 months passed between arrest and trial, defendant had to establish that the delay prejudiced his case, which he failed to do. People v Butcher, 46 Mich App 40; 207 NW2d 430 (1973).
In Barker, supra, 533, a passage on the interrelationship of the four factors to consider a speedy trial claim stated:
"We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. ” (Emphasis added.)
After balancing the factors in Grimmett, supra, we find no basis on which to hold that the defendant’s constitutional right to a speedy trial was denied.
There are four remaining issues raised by defendant. The defendant argues that his constitutional right to a jury representative of the community was denied when five jurors, who either expressed personal doubts about marijuana laws or stated they might be prejudiced in drug cases, were dismissed for cause.
The voir dire of the jury is challenged for the first time on appeal. The prosecutor affirmatively agreed to the dismissal of four of the five jurors and was silent, not indicating an objection, during the dismissal of one juror for cause.
As a general rule, to challenge the voir dire of the jury on appeal, objection should be taken immediately when the jurors are excused. People v Costea, 19 Mich App 166; 172 NW2d 488 (1969). Where there are no previous objections to the dismissal of jurors, this Court will reach the issue only if the defendant demonstrates prejudice by the jury ultimately selected. People v Clyburn, 55 Mich App 454; 222 NW2d 775 (1974). The defendant offers no evidence to indicate that he was prejudiced by the jury impanelled. To the contrary, no objections were raised during the voir dire of the jury, indicating that the competency or impartiality of the jury was not questioned.
This Court does not find that irrelevant and prejudicial testimony was allowed when an expert witness testified regarding the number of "dime bags” which could be produced from the quantity of marijuana delivered. The expert witness, when asked a question regarding the average weight of marijuana which he had analyzed, volunteered:
"I would say in 75 — around 75% of the cases, as I recall, were what was labeled a 'dime’ bag and were probably confiscated from teenagers or someone in that class from a high school range.”
Defendant contends that this testimony improperly injected into the trial the jury’s civic duty to deal with the problem of drugs.
In People v Gloria Williams, 65 Mich App 753; 238 NW2d 186 (1975), this Court held that deliberate appeals to a jury’s civic duty to deal with the problem of drugs denies defendant a fair trial. Gloria Williams is not controlling here since there was no deliberate appeal to the jury’s civic duty to
bring in a conviction. The whole tenor of the prosecutor’s examination reveals that the object of the question was to elicit the value of the substance, not who would buy it.
At the beginning of trial defendant’s attorney emphasized that all elements of the charge were in issue. During trial a defendant retains the possibility of asking for an instruction on possession with intent to deliver marijuana. People v Chamblis, 395 Mich 408; 236 NW2d 473 (1975). Since the street value of marijuana would be relevant upon interposing the issue of intent to deliver, we do not find that the admission of such evidence was irrelevant. People v Gould, 61 Mich App 614; 233 NW2d 109 (1975).
The trial court erroneously instructed the jury that mere preparation was enough to establish an attempted delivery of marijuana. People v Coleman, 350 Mich 268; 86 NW2d 281 (1957). Although no objection was taken below it is argued that this instruction constitutes error requiring reversal. We disagree.
This Court has often approved the principle that the defendant must object timely to an instruction so that, where possible, the defect can be cured. People v Willie Johnson, 58 Mich App 165; 227 NW2d 272 (1975). Where an objection is not timely, absent manifest injustice, the allegation of error properly is not before the Court. Id.
A subsequent instruction, upon defendant’s request, was given by the trial court to clarify that mere preparation to deliver was not enough for conviction. The separate instruction accurately and clearly stated the law, with special emphasis that mere preparation was not enough to support a conviction.
On several occasions, we have held that jury instructions are to be reviewed for error in their entirety, not by isolated excerpts. People v Frank Johnson, 58 Mich App 1; 226 NW2d 730 (1975), People v Fields, 64 Mich App 166; 235 NW2d 95 (1975). Overall, the jury instructions were proper and not misleading. There is no evidence that the defendant sustained manifest injury from the first instruction, especially where he was convicted on the charge of delivery, not the lesser charge of attempted delivery.
Finally, defendant contends that evidence was admitted in contravention of the similar acts statute, MCL 768.27; MSA 28.1050. This contention is without merit.
The prosecution offered evidence that a second packet, following the cocaine transaction, was exchanged between defendant and the undercover officer. An expert witness testified that the substance in the second packet was not a controlled substance. At this point, the trial court judge gave a cautionary instruction to the jury.
MCL 768.27; MSA 28.1050 provides:
"In any criminal case where the defendant’s motive [or] intent * * * in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive [or] intent * * * in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto * *
Although it is true that the second packet turned out not to be a controlled substance, contemporaneously with the exchange, defendant stated that the packet’s contents would "knock the head off” the undercover agent. Clearly, the words surround ing the transaction involving the second packet of powder indicate that in selling the first packet defendant knew the character of the substance possessed and intended it to be of a narcotic nature.
In People v Major, 407 Mich 394, 400; 285 NW2d 660 (1979), the Supreme Court enumerated the requirements for admission of similar acts evidence: 1) it must be probative of one or more of the statutorily specified purposes; and 2) one or more of these purposes must be material, that is, a proposition "in issue” in the case. The test in Major is satisfied since the evidence went to the issue of defendant’s knowledge and intent which are material elements to the delivery of a controlled substance.
Affirmed.
Under the Michigan substance control law the attempted delivery of marijuana has been merged into the completed offense. MCL 333.7105; MSA 14.15(7105). | [
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M. J. Kelly, J.
In this appeal we are asked to review the potential liability of defendants-appellees Wilford and Virginia Mielke, whose alleged negligence in forcing the plaintiff, while intoxicated, to leave their home and attempt to drive his automobile was said to have caused an accident and subsequent injuries to the plaintiff. The trial court granted defendants’ motion for summary judgment on the basis that plaintiff had failed to state a claim upon which relief could be granted, GCR 1963, 117.20L). The facts in this case thus consist of the pleadings filed by the parties.
Plaintiff’s complaint alleged that on or about October 23, 1976, while visiting the defendants’ home, he consumed excessive amounts of alcoholic beverages provided by defendants. Plaintiff became visibly intoxicated while at the defendants’ home, and defendants allegedly forced him to leave their home by way of his automobile. After leaving defendants’ home, plaintiff lost control of his vehicle and was involved in a one-car accident from which he suffered severe head and other personal injuries.
When reviewing a lower court decision to grant a motion for summary judgment under GCR 1963, 117.2(1), we will accept as true the well-pleaded factual allegations of the plaintiff. Pontious v E W Bliss Co, 102 Mich App 718, 721; 302 NW2d 293 (1981). Once established as true, we must then determine whether the plaintiff’s claim is so clearly unenforceable as a matter of law that no factual development supporting the pleadings could justify a right to recovery. Pontious, supra, Casualty Reciprocal Exchange v Vancil, 100 Mich App 284, 286; 299 NW2d 49 (1980).
On appeal, plaintiff-appellant contends that the trial court improperly granted the motion for summary judgment, because "defendants were guilty of wanton and wilful acts of negligence in permitting, condoning, and, in fact, forcing plaintiff to drive his automobile after having knowingly caused plaintiff to become inebriated”. We have reviewed the plaintiff’s complaint and can find no support for the conclusion that gross or wilful and wanton negligence was alleged below. We thus proceed to determine if the plaintiff’s complaint, alleging a cause of action arising in ordinary negligence, was properly dismissed pursuant to GCR 1963, 117.2(1).
In LeGault v Klebba, 7 Mich App 640; 152 NW2d 712 (1967), this Court heard an appeal from the plaintiff, alleging error in the trial court’s decision to give summary judgment of no cause of action against a similar claim. The appellees in LeGault had been brought in as third-party defendants by the principal defendant, a tavern owner, under a theory that the third-party defendants contributed to the intoxicated condition of a patron of defendant’s bar, who later was involved in an accident with the plaintiff. The Court summarized the remedies available against the defendant bar owner and third-party defendants (private wedding reception hosts):
"At common law, there was no action available against those who sold intoxicants to a person who later caused injury. 30 Am Jur, Intoxicating Liquors, § 520, p 821; 48 CJS, Intoxicating Liquors, § 430, p 716; Anno, 75 ALR2d 835. In Michigan, recovery for such injury caused by an intoxicated person is exclusively statutory; Holland v Eaton, 373 Mich 34 [127 NW2d 892 (1964)]; Kangas v Suchorski, 372 Mich 396 [126 NW2d 803 (1964)]; and though remedial, the statute must be strictly construed. Holland v Eaton, supra. An effort to enlarge the statute was aptly commented upon by the Michigan Supreme Court in Malone v Lambrecht, 305 Mich 58, 62 [8 NW2d 910 (1943)]:
" 'The statute does not so provide. Whether such a provision should be embodied in our statute is within the province of the legislature, not the courts.’ "* * * It is not the law that private individuals are liable for the actions of their social guests who overindulge in the liquid hospitality provided at private homes or parties.” 7 Mich App 640, 643.
See also Hollerud v Malamis, 20 Mich App 748, 758; 174 NW2d 626 (1969) ("Nevertheless, having in mind our function as an intermediate appellate court, we do not think that we would be justified in announcing liability for ordinary negligence in this sector of law completely independent of a statute prescribing a standard of care.”) (Footnotes ommited, emphasis changed.) A similar analysis was used in Behnke v Pierson, 21 Mich App 219, 220-221; 175 NW2d 303 (1970):
"This Court is asked to decide whether or not the complaint states a cause of action against defendants under the common law or the civil damage act.
"The general rule is that furnishing liquor without gain on social occasions creates no right of action against the host. 8 ALR3d 1413, § 2.
"Michigan follows this general rule. LeGault v Klebba, 7 Mich App 640 [152 NW2d 712 (1967)].
"LeGault held that there was no action available against those who gave intoxicants to a person who later caused injury. In Michigan, recovery for such injury caused by an intoxicated person is exclusively statutory. The statute makes no provision for holding private individuals liable for furnishing intoxicants without pecuniary gain for social courtesy or hospitality reasons.” (Footnotes omitted.)
Finally, see Guitar v Bieniek, 402 Mich 152, 167; 262 NW2d 9 (1978), describing the motivation for imposing liability on liquor retailers as "totally inapplicable to a social setting in which the alcohol is supplied as a mere social amenity”.
We view the above authorities as directly applicable to the instant case. The plaintiffs action arising , in negligence is neither permitted under the dramshop act, MCL 436.1 et seq.; MSA 18.971 et seq., nor recognized at common law. Additionally, we concur with the opinion of Judge (now Justice) Levin in Hollerud that recognition of a nonstatutory cause of action on behalf of this plaintiff and others similarly situated must await a decision by the Supreme Court. We hold, therefore, that the trial court’s decision to grant the defendant’s motion for summary judgment was not in error.
Affirmed.
In granting defendants’ motion for summary judgment, the trial court stated from the bench:
"I don’t believe a higher court in Michigan has yet said a social host has liability under any test that I know of regardless of what happened, and therefore, I will grant the motion.” | [
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N. J. Kaufman, P.J.
Plaintiff appeals from a grant of accelerated and summary judgment by the Wayne County Circuit Court.
Plaintiff initiated this cause in Wayne County Circuit Court on July 25, 1979. This action was premised on alleged violations of the Michigan Handicappers’ Civil Rights Act, MCL 37.1101 et seq.; MSA 3.550(101) et seq., by defendant, which resulted in plaintiff’s dismissal from the Wayne State University Law School.
In his complaint, plaintiff alleged that he had lost substantially all of the hearing in his left ear because of the amputation of that ear drum. During the fall semester of 1977, plaintiff requested permission from two of his professors as well as from a law school dean to tape-record specific lectures because of his hearing impediment. Plaintiff claims that such permission was denied by one professor and that the dean, while giving permission to plaintiff to tape-record lectures, did not send a memo notifying plaintiff’s professors that such accommodation should be made. Plaintiff asserts that as a result of his hearing problems, plaintiff received a C minus in one course and withdrew from the other. Plaintiff prayed for an injunctive order restoring him to law school and further claimed damages in tort.
Defendant responded by way of motions for accelerated and/or summary judgment. Defendant contended that only the Court of Claims had jurisdiction to hear this cause of action against a state agency, according to MCL 600.6419; MSA 27A.6419. One portion of the motion for summary judgment was premised on GCR 1963, 117.2(1). Defendant alleged that plaintiff had failed to state a claim upon which relief could be granted, in that plaintiff had misconstrued the Handicappers’ Civil Rights Act (hereinafter HCRA) as creating a duty affirmatively to accommodate handicapped law students. The other portion of the motion for summary judgment was based upon GCR 1963, 117.2(3), the lack of existence of a genuine issue of material fact. Defendant argued that plaintiff failed to make any causal connection between his handicap and his termination as a law student.
Defendant attached various affidavits to its motions, including one by evidence professor Ralph Slovenko. Professor Slovenko stated that while he remembered a student asking permission to tape, he did not recall that such student ever represented that he had an auditory problem which prevented him from properly hearing lectures. Plaintiff’s affidavit and objection to defendant’s motions set forth the history and extent of his hearing problems. In his affidavit, plaintiff reiterated his attempts to gain approval to use his tape recorder. At the time he made such attempts, his left ear was fully bandaged because of a recent operation. Plaintiff related his hearing deficiency to his lack of success in law school during the semester in question, which was his last, because of his poor grades.
In granting accelerated judgment, the trial court concluded that the Court of Claims was the proper forum in which to bring this action.
The trial court also granted defendant’s motion for summary judgment, based on GCR 1963, 117.2(3) and (1). Plaintiff brings this appeal as of right, pursuant to GCR 1963, 806.1.
Plaintiff first contends that the trial court erred in granting accelerated judgment on the basis that an action under the HCRA against a state agency must be initiated in the Court of Claims.
The Court of Claims has exclusive jurisdiction over claims against the state. MCL 600.6419; MSA 27A.6419. This includes claims against a state university. Fox v Board of Regents of University of Michigan, 375 Mich 238; 134 NW2d 146 (1965), Sprik v Regents of University of Michigan, 43 Mich App 178; 204 NW2d 62 (1972), aff’d 390 Mich 84; 210 NW2d 332 (1973).
MCL 600.6419(4); MSA 27A.6419(4) limits the jurisdiction of the Court of Claims as follows:
"(4) This chapter shall not be construed so as to deprive the circuit courts of this state of jurisdiction over actions brought by the taxpayer under the provisions of Act No. 167 of the Public Acts of 1933 or any other actions against state agencies based upon the statutes of the state of Michigan in such case made and provided, which expressly confer jurisdiction thereof upon the circuit courts, nor of the proceedings to review findings as provided in Act No. 1 of the Public Acts of the Extra Session of 1936, or any other similar proceedings expressly authorized by the statutes of the state of Michigan in such case made and provided.” (Emphasis added.)
The Court of Claims is a "legislative court” and not a "constitutional court” and derives its powers only from the act of the Legislature and is subject to the limitations therein imposed. Manion v State Highway Comm’r, 303 Mich 1; 5 NW2d 527 (1942), cert den 317 US 677; 63 S Ct 159; 87 L Ed 543 (1942). The Legislature created a Court of Claims as a substitute "for the 'board of State auditors’ and the 'State administrative board’ for the purpose of hearing and determining 'all claims and demands, liquidated and unliquidated, ex contractu and ex delicto against the State’ * * Id., 20. Taylor v Auditor General, 360 Mich 146, 150; 103 NW2d 769 (1960). Thus, the jurisdiction granted to the Court of Claims is "narrow and limited, substituting, merely, a 'court’ of claims for the superseded claims jurisdiction of the earlier boards”. Id.
The HCRA sets forth the following complaint procedure:
"Sec. 605. A complaint alleging an act prohibited by this act shall be subject to the same procedures as a complaint alleging an unfair employment practice under Act No. 251 of the Public Acts of 1955, as amended, being sections 423.301 to 423.311 of the Michigan Compiled Laws, or under the existing state law dealing with unfair employment practices if Act No. 251 of the Public Acts of 1951, as amended, is repealed.” MCL 37.1605; MSA 3.550(605).
1955 PA 251 was part of the former Michigan State Fair Employment Practices Act, which was repealed by 1976 PA 453, effective March 31, 1977. At the same time that 1955 PA 251 was repealed, a new act, known as the Elliott-Larsen Civil Rights Act, MCL 37.2101; MSA 3.548(101), was passed. The act provides the following complaint procedure:
"Sec. 801(1). A person alleging a violation of this act may bring a civil action for appropriate injunctive relief or damages, or both.
"(2) An action commenced pursuant to subsection (1) may be brought in the circuit court for the county where the alleged violation occurred, or for the county where the person against whom the civil complaint is filed resides or has his principal place of business.
"(3) As used in subsection (1), 'damages’ means damages for injury or loss caused by each violation of this act, including reasonable attorney’s fees.” MCL 37.2801; MSA 3.548(801).
This Court cannot accept defendant’s contention on appeal that § 801 is strictly a venue statute, not affecting the exclusive jurisdiction of the Court of Claims in actions against a state university. Actions brought pursuant to either the HCRA or the Elliott-Larsen Civil Rights Act are constitutional claims. Under the latter act, the circuit courts have jurisdiction, and §605 of the HCRA states that a complaint filed under the HCRA must comport with the procedural provisions of the existing state law dealing with fair employment practices, that is, the Elliott-Larsen act. It is, therefore, our opinion that the Court of Claims would have no jurisdiction over the instant case. For this reason, the trial court erred in granting defendant’s motion for accelerated judgment on the ground that the Court of Claims had exclusive jurisdiction over the subject cause.
Plaintiff next argues that the trial court erred in finding no genuine issue as to any material fact and in entering summary judgment pursuant to GCR 1963, 117.2(3).
The Michigan HCRA provides in pertinent part:
"Sec. 402. An educational institution shall not:
"(a) Discriminate in any manner in the full utilization of or benefit from the institution, or the services provided and rendered thereby to an individual because of a handicap that is unrelated to the individual’s ability to utilize and benefit from the institution or its services, or because of the use by an individual of adaptive devices or aids.
"(b) Exclude, expel, limit, or otherwise discriminate against an individual seeking admission as a student or an individual enrolled as a student in the terms, conditions, and privileges of the institution, because of a handicap that is unrelated to the individual’s ability to utilize and benefit from the institution or because of the use by an individual of adaptive devices or aids.” MCL 37.1402; MSA 3.550(402).
The trial court’s order of November 30, 1979, granted defendant’s motion for summary judgment pursuant to GCR 1963, 117.2(1) (failure to state a claim) and 117.2(3) (no genuine issue of material fact).
The events at issue are those which occurred during the fall, 1977, semester, after plaintiff had been readmitted to law school provisionally, following termination in June, 1976, because of unsatisfactory academic performance. Plaintiffs readmission was expressly conditioned upon his achievement of a 2.33 grade point average during the fall term. Plaintiff had undergone ear surgery in August, 1977, and had not regained any hearing in the affected ear by the time the fall term began. Plaintiff was terminated by the law school after he received a 1.85 grade point average for course work completed during the term in question.
Plaintiff filed suit under the HCRA on the ground that the university discriminated against him by refusing to permit him to use a tape recorder in certain classes. The complaint specified two fall, 1977, classes — Evidence, taught by Professor Slovenko, and Professional Responsibility, taught by Judge Horace Gilmore. Plaintiffs affidavit states that when he asked Judge Gilmore if he could use a tape recorder because of his surgery and hearing difficulties, Judge Gilmore indicated that he had no objection as long as the school administration concurred. Plaintiffs affidavit further indicates that Dean Sharon Brown, Dean of Student Affairs, stated that she did not object to plaintiffs use of a tape recorder in his classes; however, she did not notify plaintiffs instructors officially as plaintiff requested.
Plaintiff also stated that Professor Slovenko refused plaintiff permission to use a tape recorder in Evidence class, despite plaintiffs request during the first week of class for such permission because plaintiff just had undergone ear surgery and was having hearing difficulty. Professor Slovenko, in his affidavit, stated that he did tell a student during the fall, 1977, term that tape-recording of the class would not be permitted. However, Slovenko also stated that he did not recall plaintiff as being the individual who requested to tape the class, that he did not recall plaintiff as ever indicating that he had a hearing problem, and that many seats were available at the front of the classroom, in proximity to the lecturer, for any individual with an auditory problem.
As this Court views the instant situation, a possible issue of fact which might have aided plaintiff in withstanding defendant’s motion for summary judgment did exist. The trial court never resolved the dispute regarding whether plaintiff had informed Professor Slovenko that he had a hearing problem when plaintiff requested to tape the class.
With respect to a motion for summary judgment on the ground that there is no genuine issue as to any material fact, the court should give the benefit of any reasonable doubt to the opposing party and should not grant summary judgment unless it finds that "it is impossible for the claim * * * to be supported at trial because of some deficiency which cannot be overcome”. Rizzo v Kretschmer, 389 Mich 363, 372; 207 NW2d 316 (1973). Inferences are to be drawn in favor of the one opposing the motion, and the court is to consider the affidavits, pleadings, depositions, and other documentary evidence submitted by the parties when determining whether or not to grant summary judgment. Gamet v Jenks, 38 Mich App 719, 723; 197 NW2d 160 (1972), Sanders v Clark Oil Reñning Corp, 57 Mich App 687; 226 NW2d 695 (1975). In ruling that no issues of fact exist, the court must be careful to avoid substituting a trial by affidavit and deposition for a trial by jury, and the court is not allowed to make findings of fact nor to weigh the credibility of affiants or deponents. Northern Plumbing & Heating, Inc v Henderson Brothers, Inc, 83 Mich App 84; 268 NW2d 296 (1978), lv den 405 Mich 845 (1979).
Although the documentary evidence seems to indicate that plaintiff may not have informed the law school administration adequately of his handicap and his need to tape-record his classes, it is our opinion that a factual issue did exist as to whether a discriminatory act was, indeed, committed by defendant board. Admittedly, the issue is close. However, drawing any inferences in favor of plaintiff leads us to the conclusion that the grant of summary judgment under GCR 1963, 117.2(3) was improper.
The third issue on appeal is closely related to the issue just resolved. Although plaintiff frames this issue differently, his claim, in essence, is that, as a matter of law, Wayne State University violated the HCRA. This issue is addressed to the grant of summary judgment under GCR 1963, 117.2(1), that is, that the opposing party has failed to state a claim upon which relief may be granted. A motion for summary judgment under GCR 1963, 117.2(1) is to be tested only by the pleadings. Todd v Biglow, 51 Mich App 346, 349; 214 NW2d 733 (1974), lv den 391 Mich 816 (1974). In examining those pleadings, a court must accept as true the well-pleaded facts contained therein. Weckler v Berrien County Road Comm, 55 Mich App 7; 222 NW2d 9 (1974). The test is whether the plaintiff’s claim, on the pleadings, is so clearly unenforceable as a matter of law that no factual development possibly can justify a right to recovery. Crowther v Ross Chemical & Manufacturing Co, 42 Mich App 426, 431; 202 NW2d 577 (1972). Where the resolution of a legal issue may depend greatly upon the factual context, summary judgment on the pleadings is never proper.
In Dady v Rochester School Board, 90 Mich App 381; 282 NW2d 328 (1979), this Court upheld a lower court’s grant of summary judgment for failure to state a claim upon which relief could be granted where the plaintiff contended that the HCRA imposed a duty on a school board to provide affirmative medical services — administering periodic catheterization during school hours to a child who required such treatment as a condition to attending school. This Court held that the HCRA imposes no affirmative duty on a school to extend such services to the handicapped.
This Court does not agree with defendant’s contention that Dady is analogous to the case at bar. The instant case does not involve a claim that Wayne State University was duty bound to undertake an affirmative program with respect to treating or alleviating a student’s handicap. Plaintiff’s claim in the instant action implies that Wayne State University had a passive duty not to interfere with "the full utilization of or benefit from the institution” under MCL 37.1402; MSA 3.550(402) by preventing a hearing-impaired student from tape-recording lectures if a student otherwise could not benefit adequately from class lectures. The situation is analogous to the duty to permit blind students to use Seeing Eye dogs in a university building. (See Department of Health and Human Services regulation 45 CFR § 84.1 et seq. [1980], interpreting the Rehabilitation Act of 1973, 29 USC 794).
We find defendant’s total reliance on Dady misplaced. Recognizing that Dady is the only case in which this Court has spoken on the mandates of the HCRA, we nevertheless find untenable defen dant’s conclusion that even if plaintiff adequately had made the university aware of his handicap, the university’s alleged refusal to allow him to tape class lectures would not violate the HCRA. Arguing that the act places no affirmative duties on the university to accommodate the handicapped, defendant concludes that, by passage of HCRA, the Legislature intended to "permit”, but not require, an educational institution to adopt affirmative action policies regarding the handicapped. Defendant argues that granting plaintiffs request to tape lectures would have given plaintiff a preference not granted other students. We cannot accept defendant’s convoluted and somewhat callous interpretation of the act. Indeed, Dady does not go so far. Dady, supra, 390.
It is our belief that the balance to be struck herein is whether the burden to the institution in providing plaintiff with the aid he needs to compete equally outweighs his individual right to such assistance. In Dady, the burden on the institution was found to be too high. However, the Dady Court was clear in stating that:
"[0]ur opinion should not be interpreted as giving school districts a carte blanche to limit special education programs to benefit those children who may be accommodated most conveniently and economically.” Id., 390-391.
In our view, an inflexible policy on the part of the university administration or its professors forbidding deaf or hearing-impaired students from undertaking those measures necessary to permit them to benefit from class lectures would be violative of the HCRA, § 402(b), supra. Allowing the use of an adaptive device such as a tape recorder is not analogous to requiring the university to pro vide medical or other services to permit a handicapped student to attend school. A tape recorder is the least obtrusive device which plaintiff could have used, and is, in fact, the only device adapted to his purpose.
Although in no way binding upon this Court, we find instructive a regulation of the Department of Health and Human Services to be used in connection with § 504 of the Rehabilitation Act of 1973, 29 USC 794. This regulation is entitled "Nondiscrimination on the Basis of Handicap in Programs and Activities Receiving Benefits from Federal Financial Assistance”. In subpart E — "Postsecondary Education” the following regulation was promulgated:
"b) Other rules. A recipient to which this subpart applies may not impose upon handicapped students other rules, such as the prohibition of tape recorders in classrooms or of dog guides in campus buildings, that have the effect of limiting the participation of handicapped students in the recipient’s education program or activity.” 45 CFR § 84.44 (1980). (Emphasis supplied.)
Our conviction that summary judgment was improper under GCR 1963, 117.2(1) in that plaintiff has stated a claim under which relief could be granted, coupled with our hesitation regarding the propriety of the grant of summary judgment under GCR 1963, 117.2(3), leads us to the conclusion that the grant of summary judgment in the instant case was not proper.
We note the contradiction in the trial court’s grant of accelerated judgment on the ground that it had no jurisdiction, and the grant of summary judgment on plaintiff’s claims under GCR 1963, 117.2(1) and (3). Although we do not believe that these conflicting judgments have prejudiced either party, we reiterate our holding that jurisdiction in the circuit court was proper and that, therefore, the granting of accelerated judgment was error.
Upon remand, if this case proceeds to trial, a determination of the cause of action should be made on the basis of facts occurring only during the fall semester of 1977. Furthermore, since plaintiff brought his case under the HCRA, the only damages to which plaintiff shall be entitled, if any, are those recoverable under that act.
Reversed and remanded in accordance with this opinion. We do not retain jurisdiction.
M. J. Kelly, J., concurred. | [
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] |
R. B. Burns, P.J.
The parties are owners of adjoining parcels of land in the University Subdivision located on Lake Orion, Orion Township, Oakland County. Plaintiff is the owner of lot 26. Defendants own lots 27, 28, 29, 30 and 31, which are immediately west of lot 26. All of the lots face the lake, and are bounded on the north by Heights Road, a public highway which runs generally parallel to the shoreline. It is the property located north of plaintiff’s lot, between the highway and the shoreline, which is the subject of this litigation.
Defendants operate a party store on lot 27, next door to plaintiff’s lot. The store has been in existence since 1940. In 1941, Charles Vanderwall, a predecessor in defendants’ title, constructed a dock north of lot 26, stretching from the land north of the highway into the water. The dock and subject property have been used through the years for access to the party store from the lake.
Plaintiff acquired lot 26 by land contract in 1950, and a deed was issued in 1964. The deed did not describe the land but referred to the lot by number only.
The original plat, dedicated in 1903, shows that Heights Road ran north of lots 26 through 31, immediately adjacent to the shoreline, with no property between the road and the water. In 1950, when the plaintiff purchased lot 26, there was approximately 5 feet of land north of the road. The 1903 plat also shows a parcel of land located between the road and the shoreline, east of lot 26, near lot 23 and eastward. This land is designated on the plat as "Park”. It is not clear from the record whether or not this "Park” property is contiguous to the alluvion property north of lot 26 between the road and the water.
At the present time, the subject alluvion prop erty is 35 feet wide — the width of lot 26 — and approximately 28 feet deep at one end and 40 feet deep at the other end. Part of this land came into existence as the result of natural erosion and part is due to filling done during the construction of a new sewer.
The dock and subject property are used for access to defendant’s store by approximately 200 to 300 people per week during the summer months. The noise, litter, and nuisance caused by these customers prompted plaintiff to file an action to quiet title. Defendants filed a counterclaim to quiet title, or, in the alternative, to establish a prescriptive easement for ingress and egress over the subject property.
Both plaintiff and defendants moved for summary judgment under GCR 1963, 117.2(3), on the ground that there was no genuine issue as to any material fact. After oral argument the trial judge found the existence of a prescriptive easement and partially granted defendants’ motion. The question of title was reserved.
After trial, the court ruled that the subject property, created by accretion after 1903, was an extension of the land designated as "Park”. The trial judge did not make any specific findings of fact. However, he apparently based his ruling on a determination that the plat showed that lot 26 was bounded on the north by the highway and not by the shoreline, and that plaintiff was not, therefore, a riparian owner entitled to the alluvion property.
The trial court erred. The general rule is that, in order for land to be riparian, it must border on the water. Rice v Naimish, 8 Mich App 698; 155 NW2d 370 (1967). However, a well-established exception to this rule provides that a transfer of land bordering on a highway contiguous to a lakeshore conveys the appurtenant riparian rights. Croucher v Wooster, 271 Mich 337; 260 NW 739 (1935).
In the present case, the 1903 plat showed no land lying between the highway and the lake. Under Croucher, plaintiff had riparian rights and was entitled to the alluvion property.
It is clear that land formed by accretion belongs to the adjacent riparian owners, Hilt v Weber, 252 Mich 198; 233 NW 159 (1930). However, there is a question whether or not property created by filling done by a third party should be treated the same as natural alluvion property.
There is no authority in Michigan dealing with this question. Other jurisdictions have generally held that such artificially created lands belong to the owner of the riparian property to which it is contiguous. Gillihan v Cieloha, 74 Or 462; 145 P 1061 (1915). See also 78 Am Jur 2d, Waters, § 433, pp 880-881, Anno: Rights to land created at water’s edge by ñlling or dredging, 91 ALR2d 857, § 4, pp 878-884.
The subject property was created by natural accretion and by filling done during the Oakland County sewer construction project. In our opinion plaintiff is entitled to the subject property by reason of the riparian ownership of the adjacent land.
A prescriptive easement claimant must establish a use which is actual, open, notorious, continuous, and hostile for the statutory 15-year period. Mutual use of an area will not mature into a prescriptive easement until the mutuality has ended and the adverse and hostile use continues for the statutory period. Wood v Denton, 53 Mich App 435; 219 NW2d 798 (1974).
The trial court did not make specific findings of fact on the record and it is impossible from the record to determine if the prescriptive easement has been established.
Reversed and remanded for proceedings consistent with this opinion. | [
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] |
J. L. Banks, J.
Seymour Karp died on February 5, 1979, leaving a will, interpretation of which forms the basis of this appeal. Paragraph 4 of the will provides:
"I give, devise and bequeath one-half (1/2) of all the rest, residue and remainder of my property and estate, of which I may die seized or prossessed [sic], or to which I may be entitled to at the time of my death, or whatsoever kind or nature, real, personal or mixed, and wheresoever situate, including all property over which I may have the power to appoint or dispose of by my Last Will and Testament, to the Seymour and Margaret Karp Basic Religious Museum and Library, to be built in Plaka, Hania, Crete, Greece.”
Attorneys representing the Greek Consul General attempted to intervene after the will was admitted to probate. After an exchange of letters, the Greek Consul sought adjournment of a hearing on a petition for construction of the will. The request for adjournment was denied. At that hearing, the probate court, without taking testimony, determined that it was impossible or impracticable to carry out paragraph four of the will for three reasons:
First, the Seymour and Margaret Karp basic religious museum and library, the designated devisee, was nonexistent;
Second, that it was impossible or impracticable to cause a suitable legal entity to be created to carry out the specific purposes of paragraph four; and
Third, that the funds devised where insufficient in amount to carry out the specific purposes of paragraph four of the will.
Applying the cy pres doctrine (see Kostarides v Central Trust Co, 370 Mich 690, 696-697; 122 NW2d 729 [1963]), the probate court awarded a devise to Oakland University to provide funds to establish a Seymour and Margaret Karp book collection on humanities and religion. Further, in an order denying rehearing, the probate court held that the nation of Greece, through its Consul General, was not an interested party in the Karp estate.
While we observe, as did the probate judge, that the library and museum were not in existence at the time that the will was construed, we find that there was an intent manifested by the testator to benefit the citizens of Plaka on the Island of Crete. The proper representative of those beneficiaries is the Greek government, by its Consul General. Kostarides v Central Trust Co, supra.
Moreover, by failing to take testimony, the probate court erred in applying cy pres. To properly apply cy pres:
1) The court must determine whether the gift creates a valid charitable trust;
2) It must be established that it is impossible or impracticable to carry out the specific purpose of the trust; and
3) The court must determine whether, in creating the charitable trust, the testator (or settlor) had a general charitable intent. In re Rood Estate, 41 Mich App 405, 416-417; 200 NW2d 728 (1972), 2 Restatement Trusts, 2d, § 390, pp 297-307. We hold that the probate court erred in applying cy pres to the facts before it. Without taking any appropriate testimony the trial court had no basis for determining impossibility or impracticability of the specific bequest or that the amount of the bequest was not sufficient for carrying out the testator’s intent.
We remand this case to the Probate Court for Oakland County for further proceedings, consistent with this opinion, in which the court shall allow the Greek Consul General to intervene. The court should receive evidence concerning the possibility of implementing the testator’s bequest. We retain no jurisdiction.
Reversed and remanded. | [
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Per Curiam.
This appeal arises from a divorce action heard September 4, 1980, in Kent County Circuit Court. The parties agreed on various issues including alimony, custody, support, visitation of the child, and division of personal and real property. The defendant’s share of the value of the house was agreed to be $12,070, or one-half the equity. The parties disagreed on only one issue, and that was whether the defendant’s equity should accrue interest while its payment was suspended under the otherwise agreed-upon provisions of the proposed judgment.
The agreed-upon provisions of the judgment of divorce provided:
"IT IS FURTHER ORDERED AND ADJUDGED that the defendant, James A. Youmans, shall have a lien against said property in the amount of $12,070.00 to be paid upon the first happening of the following contingencies:
"1. Plaintiffs remarriage or death.
"2. Plaintiffs ceasing to use the property as a residence.
"3. The minor child attaining the age of 18 years.
"4. Plaintiff occupying the residence with a male person not a member of her family.
"5. Sale of property.”
The trial judge ruled on the single issue, that defendant was not entitled to any interest on the lien prior to the occurrence of any of the agreed-upon conditions. Defendant appeals this decision.
The question on appeal is whether the failure to award interest on the amount of a lien granted in an equitable divorce decree is a violation of MCL 600.6013; MSA 27A.6013. This appears to be a question of first impression in Michigan.
MCL 600.6013; MSA 27A.6013 provides for interest on any money judgment recovered in a civil action. This Court finds that an equitable real estate lien pursuant to a judgment of divorce is not a money judgment as contemplated by MCL 600.6013; MSA 27A.6013. Therefore, the statute has no application to an equitable suspension of a domestic partner’s share, unless the chancellor so orders.
Although MCL 600.6013; MSA 27A.6013 does not necessitate the awarding of interest in this case, the question remains whether the trial court abused its discretion in failing to award such interest.
The facts do not indicate an abuse of discretion by the trial judge. The record discloses that the judge considered the totality of the problem involved in a divorce involving a minor child. Plaintiff is not receiving any alimony. She has an equal burden of supporting, raising and caring for the minor child of the parties. Defendant contends that it is unconscionable to deny him interest for the use of his money during these inflationary times. However, plaintiff’s share of the property settlement is also suspended by the same terms. The trial judge found it necessary for both parties to make these contributions for the continued welfare of their child.
Affirmed. | [
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] |
M. J. Kelly, J.
Plaintiff, Michigan Mutual Insurance Company, appeals as of right from an order granting accelerated judgment, GCR 1963, 116.1(5), to defendant Home Mutual Insurance Company. The judgment as rendered effectively barred fur7 ther prosecution of the plaintiffs claim for reimbursement of benefits mistakenly paid to the injured person whose first recourse for benefits should have been to defendant.
On September 29, 1976, Raymond Eastham was injured when an automobile struck the motorcycle he was riding. The automobile was owned by John D. Clarence and was driven by James Clarence. At the time of the accident, Raymond Eastham was separated from his wife, Judith Eastham, and was residing with his father, Charles Eastham. Raymond’s father owned an automobile that was insured by plaintiff Michigan Mutual, and Raymond’s wife owned an automobile that was insured by defendant Home Mutual. Raymond East-ham did not own an automobile. His motorcycle had standard cycle coverage but did not have no-fault coverage.
After the accident, Raymond Eastham applied to the plaintiff for personal protection insurance benefits under his father’s policy. Plaintiff, which was unaware of the potential coverage under the defendant’s policy with Judith Eastham, paid $29,492.21 in benefits to Raymond Eastham. In late March or early April of 1978, plaintiff learned that Raymond Eastham was still legally married and that his wife had a no-fault policy issued by defendant. Plaintiff immediately notified defendant and demanded reimbursement of the $29,492.21 that was paid to Eastham. Defendant refused to reimburse plaintiff.
Plaintiff, as subrogee of Raymond Eastham, filed this action in Genesee County Circuit Court on April 28, 1980. On August 27, 1980, defendant moved for accelerated judgment pursuant to GCR 1963, 116.1(5), claiming that the action was barred by the one-year statute of limitations contained in MCL 500.3145(1); MSA 24.13145(1):
"An action for recovery of personal protection insurance benefits payable under this chapter for accidental bodily injury may not be commenced later than 1 year after the date of the accident causing the injury unless written notice of injury as provided herein has been given to the insurer within 1 year after the accident or unless the insurer has previously made a payment of personal protection insurance benefits for the injury. If the notice has been given or a payment has been made, the action may be commenced at any time within 1 year after the most recent allowable expense, work loss or survivor’s loss has been incurred. However, the claimant may not recover benefits for any portion of the loss incurred more than 1 year before the date on which the action was commenced. The notice of injury required by this subsection may be given to the insurer or any of its authorized agents by a person claiming to be entitled to benefits therefor, or by someone in his behalf. The notice shall give the name and address of the claimant and indicate in ordinary language the name of the person injured and the time, place and nature of his injury.”
In an oral statement preceding the order granting accelerated judgment, the lower court opined that the limitations period commenced running when the plaintiff received notice of the alternate coverage under the defendant’s policy. The court rejected the plaintiff’s argument that the action for reimbursement was grounded on a theory of quasi-contractual recovery, to which the general six-year statute of limitations embodied in MCL 600.5807(8); MSA 27A.5807(8) would apply. The plaintiff raises a similar argument in this appeal.
This case presents a factual and legal similarity to this Court’s recent decision in Federal Kemper Ins Co v Western Ins Cos, 97 Mich App 204; 293 NW2d 765 (1980). In Federal Kemper, the plaintiff insurer brought an action in quasi-contract against the defendant insurer to recover the amount of no-fault benefits which the plaintiff had paid for injuries suffered by a person to whom both companies were contractually liable. The trial court granted summary judgment to the defendant under GCR 1963, 117.2(1) for failure to state a claim upon which relief could be granted and accelerated judgment under GCR 1963, 116.1(5) on the ground that the action was barred by the one-year statute of limitations quoted above. On appeal, this Court found that plaintiffs had pled facts sufficient to state a claim for subrogation, despite their designation of the action as one arising in quasi-contract:
"In balancing the equities in the instant case, we are not blind to the fact that though plaintiffs are trying to recover for personal injury benefits they paid under the no-fault act, they are bringing the instant action in quasi-contract solely to avoid the one-year statute of limitations in the act, MCL 500.3145(1); MSA 24.13145(1).
"Further recognizing our discretion in granting equitable relief, we believe the proper action here is one in equity for subrogation. In Farmers Ins Group v Progressive Casualty Ins Co, 84 Mich App 474, 484; 269 NW2d 647 (1978), this Court held that where an insurer, whose liability is arguably secondary to that of a primary insurer, pays the claim, it becomes subrogated to the rights of the insured. Under these circumstances the Court held that a separate suit for 'indemnification’ is the preferable method for handling the dispute 'since the injured person recovers for his injuries without delay while the insurers thereafter iron out their respective liabilities’.
"Although plaintiffs in their complaint did not mention the term 'subrogation’, they pleaded sufficient facts to state a claim for subrogation as the complaint reasonably informed defendant of the nature of the cause if must defend. See Wynn v Cole, 68 Mich App 706, 712-713; 243 NW2d 923 (1976).” (Footnote omitted.) Id., 208-209.
Relying on the legal principle that a subrogee acquires no greater rights than his subrogor, Northwestern Mutual Ins Co v Jackson Vibrators, 402 F2d 37, 40 (CA 6, 1968), the panel in Federal Kemper then held that plaintiffs’ subrogation claim was subject to the one-year statute of limitations in the no-fault act:
"In the case at bar, defendant never gave plaintiffs or the insured any reason to believe it would pay the claim; on the contrary, defendant denied liability ab initio. Yet plaintiffs allowed almost three years to elapse before filing this lawsuit. It is clear that if the insured had followed this course of procedure, his action would have been barred by the one-year limitation in the statute. In this respect, it would be inequitable to afford plaintiffs the beneñt of the more liberal statute of limitations for an action in quasi-contract. Doing so would thwart the legislative intent of the no-fault act to give quick notice of claims and provide prompt payment. Therefore, we hold that the trial judge did not err in granting defendant accelerated judgment on the basis of the one-year limitation in the no-fault statute.” (Emphasis added.) 97 Mich App 211.
See also Home Ins Co v Rosquin, 90 Mich App 682; 282 NW2d 446 (1979), a case in which the one-year statute of limitations was held to bar plaintiff insurer’s cause of action where plaintiffs complaint for subrogation was not amended to include co-insurers until 17 months after payment of original claim, and Keller v Losinski, 92 Mich App 468, 473; 285 NW2d 334 (1979), a case in which similar facts resulted in the following holding:
"Finally, Michigan Mutual cannot avoid the statute of limitations by classifying its action as one for indemnification rather than one for recovery on personal injuries. In its indemnification action, Michigan Mutual is subrogated to plaintiff’s rights and cannot recover where plaintiff would be barred from bringing his own action.”
The case sub judice is no less a subrogation action than those raised in Federal Kemper, supra, and Farmers Ins Group, supra. As in Farmers, the instant plaintiff was contractually subrogated to the rights of its insured, Raymond Eastham. Un der the second contract of insurance held by Judith Eastham with defendant Home Mutual, a claim against Home Mutual was available to Raymond Eastham after his accident. Thus, this action is an attempt by Michigan Mutual, as subrogee of Raymond Eastham’s right to claim benefits from Home Mutual, to enforce the cause of action it has inherited. Because the action is one for subrogation, the one-year statute of limitations is the proper provision to apply in reviewing the motion for accelerated judgment.
We note that during arguments on this motion before the trial court the parties agreed that plaintiff Michigan Mutual had notice of the potential claim against the defendant as of April 21, 1978, the date of plaintiffs demand for reimbursement of benefits paid to Raymond Eastham. However, the complaint initiating the plaintiffs action was not filed until April 28, 1980, over two years after the plaintiff acquired notice of its claim. Therefore, the complaint was filed over one year after the limitations period in MCL 500.3145(1); MSA 24.13145(1) expired. We find no error in the lower court’s order of accelerated judgment.
Affirmed. | [
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T. M. Burns, J.
On May 21, 1975, a severe wind and rain storm passed through Van Burén County uprooting two tall trees that fell against one of defendant’s power lines knocking it nearly to the ground. Area residents reported power failures to defendant and a company service repairman was dispatched, who located and replaced a burned-out, 65-amp fuse in the area without investigating to determine what caused the power failure or fuse blowout.
Later that evening on the day of the storm, at approximately 10 p.m., the decedent, Sheila Crawford, who was 18 years old, and her sister, plaintiff Susan Crawford Rodriquez, who was 16 years old, and two young male companions drove into a dirt road in the area of the power line failure and parked. Sheila and one of the males left the automobile and walked into a wooded area where they came into contact with the downed electric wire and were killed by electrocution. A short time thereafter, plaintiff Susan Crawford Rodriquez and her male companion were drawn to the area by a fire which they saw. There they saw the partially burned bodies of the decedent and her companion.
The administrator of decedent Sheila Crawford’s estate commenced a wrongful death action on May 20, 1977, and one year later, on May 22, 1978, plaintiff Susan Crawford Rodriquez commenced a companion action for damages arising out of mental, distress occasioned by the viewing of her sister’s electrocution, burning, and death. Both complaints alleged several counts: ordinary negligence, gross negligence, wilful and wanton misconduct, trespass, and nuisance.
Defendant moved for summary judgment under GCR 1963, 117.2(1) on June 13, 1980. Defendant claimed that plaintiffs’ complaints failed to state claims upon which relief could be granted because the utility was immune from liability under the recreational users statute, MCL 300.201; MSA 13.1485, which provides:
"No cause of action shall arise for injuries to any person who is on the lands of another without paying to such other person a valuable consideration for the purpose of fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use, with or without permission, against the owner, tenant or lessee of said premises unless the injuries were caused by the gross negligence or wilful and wanton misconduct of the owner, tenant or lessee.”
On August 11, 1980, defendant’s motion for summary judgment as to both complaints was granted in part. Specifically, the first count of plaintiffs’ complaints alleging ordinary negligence was dismissed. The gross negligence portion of Count II of plaintiffs’ complaints was dismissed but that part of Count II alleging wilful and wanton misconduct was sustained for trial. Both portions of Count III, which alleged nuisance and trespass, were dismissed.
Plaintiffs now appeal, having briefed a number of issues for our consideration.
We summarily reject plaintiffs’ contention that the recreational users statute is unconstitutional. This argument was addressed in a manner adverse to plaintiffs’ position in Thomas v Consumers Power Co, 58 Mich App 486; 228 NW2d 786 (1975), modified 394 Mich 459; 231 NW2d 653 (1975). We further note that plaintiffs did not raise this issue below and, therefore, it would be inappropriate for us to consider it on appeal.
Similarly, we reject plaintiffs’ contentions that defendant does not have a sufficient interest in the land where this occurrence took place so as to raise the defense of the recreational users statute and that Thomas is not binding precedent upon the issue of whether an easement constitutes "land” within the meaning of the recreational users statute. In Thomas, this Court construed the recreational users statute and held that the present defendant, as an easement holder, is a sufficient owner of the land under the statute to invoke its protection. The Michigan Supreme Court affirmed this Court’s construction of the statute on this question. 394 Mich 459, 460. The significance of the Thomas decision is that it permits a utility-easement owner to invoke the protection of the recreational users. statute. We are bound by that decision.
Nor are we persuaded by plaintiffs’ argument that the Legislature intended to distinguish between ordinary negligence arising out of a natural condition of land and active negligence by the owners of that land when it enacted the recreational users statute. As was noted by this Court in Thone v Nicholson, 84 Mich App 538, 550; 269 NW2d 665 (1978), " '[a]ctive’ negligence is, however, still negligence, and different in kind from wilful and wanton misconduct”. Thus, this Court has repudiated plaintiffs’ purported distinction be tween ordinary negligence and active negligence. The recreational users statute shields from liability all owners of land falling within its purview for all acts of negligence, whether active or passive.
With respect to plaintiffs’ concern that the trial judge may instruct a jury improperly in the future regarding the law of wilful and wanton misconduct, we find that plaintiffs’ fears are not ripe for our consideration at this time. There is ample time for plaintiffs to submit proposed jury instructions to the lower court on this issue. Finally, the definition of wilful and wanton misconduct was set forth by this Court in its opinion in Thone, and, having examined the record, we are not persuaded by plaintiffs’ argument that the trial judge misread Thone. That case contains ample definition of common-law wilful and wanton misconduct as applicable to the recreational users statute. We fully trust that the trial judge will apply the law as set forth therein.
We now turn to the principal issue in this case. That is, whether the recreational users statute permits actions against the owners of land for other than gross negligence or wilful and wanton misconduct. Plaintiffs argue that the trial judge improperly dismissed those counts of their complaints alleging nuisance and trespass. They contend that the recreational users statute grants immunity to defendant only for ordinary negligence and that other causes of action, such as nuisance, are permitted.
As this Court noted in its opinion in Thomas, supra, 492, the recreational users statute merely codifies tort principles that are universally recognized in common-law jurisdictions with regard to such duties owed by owners and occupiers of property to those who come upon such property merely as licensees.
Likewise, in Thone, supra, 543-544, this Court agreed that the purpose of the recreational users statute "was to codify the common-law liability of landowners to those who come gratuitously upon the land, and that the statute neither expanded nor restricted the common-law duty of landowners owed to licensees”.
As Thomas points out, it is the common-law duty of an owner of land to use ordinary care to avoid or prevent injury to licensees and to refrain from wilfully or wantonly injuring them. In addition, however, landowners have a common-law duty to protect licensees from injury on account of nuisances created or maintained on the land. This is true even where the dangerous condition involves not only a defect but a "threatening or impending danger to the public, or, if a private nuisance, to the property rights or health of persons sustaining particular relations to the same * * *”. Kilts v Board of Supervisors of Kent County, 162 Mich 646, 651; 127 NW 821 (1910).
In Anderson v Brown Brothers, Inc, 65 Mich App 409; 237 NW2d 528 (1975), a panel of this Court considered the scope of the recreational users statute under facts that also brought into consideration the governmental immunity statute. Although a majority of the Court could not reach agreement on the question of whether a claim in nuisance may be pursued despite the defense of the recreational users statute, Judge O’Hara, in his separate opinion, held that such a claim could survive:
"If in this state a pleaded nuisance is indistinguishable from an action based upon gross negligence or wilful and wanton misconduct, I am unaware of it. If it is true, it should be said so with judicial clarity and finality. It seems to me the Supreme Court has said there is a difference as succinctly as possible in Buckeye Union Fire Ins Co v Michigan, 383 Mich 630, 636; 178 NW2d 476 (1970), as quoted by the very recent case of Buddy v Michigan, 59 Mich App 598, 603; 229 NW2d 865 (1975).
" 'Primarily, nuisance is a condition. Liability is not predicated on tortious conduct through action or inaction on the part of those responsible for the condition. Nuisance may result from want of due care (like a hole in a highway), but may still exist as a dangerous, offensive, or hazardous condition even with the best of care.’
"I vote to vacate the summary judgment entered in favor of all the defendants on count one alleging a nuisance and to remand this issue to the trial court for such proceedings as may there properly ensue.” Id., 421-422.
It is not enough to say that the recreational users statute permits actions only for gross negligence or wilful and wanton misconduct. As this Court noted in Thomas and in Thone, the recreational users statute was intended by the Legislature to reiterate a landowner’s duty to refrain from intentionally injuring persons coming onto bis land and to protect the landowners from ordinary negligence arising out of a natural defect in the land. However, a landowner had at common law a duty not to injure others by maintaining a nuisance. Under Michigan case law, a landowner’s liability for negligence is based upon the existence of a dangerous condition. Rosario v City of Lansing, 403 Mich 124; 168 NW2d 230 (1978). The presence of a dangling, high-voltage wire is a dangerous condition which can be considered to be a nuisance for which a landowner may be liable in damages should a licensee be injured by that wire.
Remanded for trial during which plaintiffs may pursue their claim for wilful and wanton misconduct and nuisance. In all other respects, the judgment of the lower court is affirmed. | [
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Per Curiam.
Defendant was charged with first-degree criminal sexual conduct, MCL 750.520b(l); MSA 28.788(2)(1), and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). A Recorder’s Court jury found him guilty of third-degree criminal sexual conduct, MCL 750.520d; MSA 28.788(4), and not guilty of felony-firearm. He was sentenced to a term of from 10 to 15 years in prison and appeals as of right.
Defendant’s sole issue raised on appeal challenges the admission of the testimony of two prosecution witnesses, Joyce Wilkins and Amelia Robinson, who testified concerning sexual attacks that the defendant allegedly had made on them prior to the date of the criminal sexual conduct with which defendant is charged in this case.
The admission of similar acts evidence will not be reversed on appeal unless the trial court has abused its discretion. People v Hayward, 98 Mich App 332; 296 NW2d 250 (1980). Similar acts evidence is admissible under the following circumstances:
"First, it must be probative of one or more of the statutorily specified purposes, and one or more of those purposes must be material, that is, a proposition 'in issue’ in the case. [People v Major,] 407 Mich 394, 400 [(1979)]. Then, there should be direct proof of three propositions from which a fourth is inferable: 1) that the manner in which the criminal act in question or some significant aspect of it was performed bore certain distinguishing, peculiar or special characteristics; 2) that certain specific similar acts, performed contemporaneously with or prior to or subsequently to the act in question, bore the same distinguishing, peculiar or special characteristics; 3) that the similar acts were performed by the defendant; and 4) that, accordingly, the crime in question was committed by the defendant. 407 Mich 394, 398.” People v Horton, 98 Mich App 62, 69-70; 296 NW2d 184 (1980).
The evidence in this case clearly satisfies these tests. First, it is probative of the purposes specified in MRE 404(b), i.e., proof of a scheme, plan, or system in doing an act, or identity. During trial, defendant placed his identity as the perpetrator of the alleged crime in issue. The evidence also meets the three-proposition test because "there are distinctive characteristics common to the acts which constitute a 'signature’ identifying the defendant as the perpetrator”. Id., 70. The acts to which the two witnesses testified shared distinctive elements with the act against the complainant with which the defendant is charged. Each of the women was young and was accosted by a man with a gun in the same area of town in the early morning hours. Each was taken through an alley and into the back door of the same vacant house on Joseph Campau Street and upstairs into an empty room. The defendant had each of the women stand facing the wall and then made them lie down on something that he had placed on the floor to have sexual intercourse. Two of the women testified that he covered their eyes with a scarf or a hat and that after the sexual act he asked them whether they wanted to go downstairs first or whether he should go first. Each of the women was threatened that if she screamed he would hurt her. We hold that the trial court did not err in admitting this evidence. We reject defendant’s claim that the evidence was more prejudicial than probative. Its probative value in establishing the identity of the defendant as the perpetrator of the crimes outweighed its potential prejudicial effect on the defendant.
Affirmed. | [
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] |
N. J. Kaufman, P.J.
Respondents’ residential property was condemned by plaintiff Highway Commission. Respondents, at times, utilized the backyard of their residence for environmental photography in conjunction with a photographic studio which they owned and operated in down town Plymouth, approximately 1.3 miles from the condemned property.
Respondents claimed that they should be compensated for the "going-concern” value of their property in addition to its value solely as a residence. The trial court ruled, as a matter of law, that respondents could not submit evidence to the jury of the going-concern value of their residential property in determining the amount of the award to be made in the condemnation proceedings.
In an amended default judgment and consent judgment of April 14, 1980, the parties settled for $88,000 while preserving the issue of the trial court’s denial of the submission of evidence concerning the going-concern value.
The general rule is that no compensation will be allowed for the goodwill or going-concern value of a business operated on real estate being condemned. State Highway Comm v L & L Concession Co, 31 Mich App 222, 229; 187 NW2d 465 (1971).
In the instant case, it is undisputed that the primary use of respondents’ property is residential. It is a home in a neighborhood which is zoned residential. Respondents’ photography studio is located in downtown Plymouth, and the major portion of their business is conducted at this studio. Apparently, they brought clients to their residence during a few months of the year and used their backyard as a setting for outdoor photographs.
If this backyard studio technically constituted a business, the question before this Court is whether or not the value of this use should have been considered as an element in determining respondents’ condemnation award.
In L & L Concession Co, supra, the defendant operated a concession stand within the confines of a racetrack which was condemned. The defendant had the exclusive license to operate there, and his business was totally destroyed by the condemnation of the racetrack property. There was no place, no other racetrack, to which the defendant could relocate. The Court stated that going-concern value can be awarded if it is necessary to render the compensation full, if it is not redundant of other damages awarded and if the business has been totally destroyed by the taking. Id., 235. Based on the circumstances in that case, the Court ruled that an award must be granted for the going-concern value of the business.
Detroit v Whalings, Inc, 43 Mich App 1; 202 NW2d 816 (1972), lv den 388 Mich 813 (1972), reiterates the basic rules set out in L & L Concession Co. The issue in Whalings was very similar to the issue in the instant case: whether the defendant should have been allowed to submit evidence to the jury on the question of alleged loss of goodwill and destruction of its business occurring as a result of its purported inability to relocate. Whalings was a men’s clothing store which had operated in downtown Detroit for over 100 years. It was unable to relocate in a financially feasible location because all other possible sites were already occupied. Furthermore, the defendant, in an offer of proof, submitted affidavits regarding its contention that the store’s location was crucial and the condemnation would result in the total destruction of its ongoing value.
The Court refused to allow the evidence, as a matter of law, and distinguished L & L Concession Co, stating:
"* * * Whalings’ going-concern value does not derive primarily from its location; it does not enjoy a monopoly, and its customers are not a captive audience. * * *
"* * * In the L & L case, a 'suitable location nearby’ could only be within the racetrack grounds. The possibility of such relocation was foreclosed by reason of the condemnation of the entire racetrack. For this case to come within the facts of L & L, the entire downtown area would have to be included in the condemnation order.” Whalings, supra, 9-10.
In re Lansing Urban Renewal, 68 Mich App 158; 242 NW2d 51 (1976), lv den 397 Mich 828 (1976), further interpreted L & L Concession Co. In that case a very unique restaurant located in downtown Lansing was condemned. The defendants fruitlessly made every possible effort to relocate in the same area. Thus, the trial court, in determining the proper award, considered the profits of the restaurant. On appeal, the plaintiff, relying on Whalings, alleged that the trial court’s award was legally erroneous because it had included the going-concern value, or goodwill, in its determination of the condemned property’s worth. In re Lansing Urban Renewal, supra, 163. The defendants responded that the inclusion was authorized by L & L Concession Co. The Court, at 165, held that there was no error in considering the going-concern value of the restaurant in determining the condemnation award:
"We hold that, where special facts similar to those present in L & L exist, a court may properly consider goodwill as evidence of the value of the leasehold or the capacity of the realty for use.” (Citations omitted.)
The trial court had found that the restaurant was a unique operation in a unique location; it depended greatly on the location and any significant move would so greatly impair its business as to nearly destroy it. More importantly, the trial court found that " '[t]he premises were adapted for a particular highly productive use no way dependent on ownership by these particular defendants’ (Emphasis in original.) In re Lansing Urban Renewal, supra, 165.
Applying the law in the above-cited cases to the case at bar, it does not appear that the trial judge erroneously excluded evidence of the going-concern value alleged by respondents. As set forth in In re Grand Haven Highway, 357 Mich 20; 97 NW2d 748 (1959), the normal method for determining a condemnation award is to use the market value of the property. In this case it is undisputed that respondents received fair compensation for their property as used for residential purposes. Furthermore, the highest and best use to which land may be put is the test to be used to determine value of the land. In re Condemnation of Lands in the City of Battle Creek for Park Purposes, 341 Mich 412; 67 NW2d 49 (1954). In this case, there is no doubt that the highest and best use of respondents’ land was as a residence, not as an outdoor photographic studio.
Western Michigan University Board of Trustees v Slavin, 381 Mich 23, 26; 158 NW2d 884 (1968), reiterates the standard for reviewing lower court decisions in condemnation proceedings:
" 'It is a recognized rule of this Court in condemnation cases that strict rules as to the admissibility of testimony are not always enforced, that ordinarily this Court will not set aside the award because of the introduction of improper evidence or improper rulings of a trial judge where one attends, but that where prejudicial, inadmissible testimony was received and acted upon by the jury, or where competent testimony going to the merits was excluded which if admitted would have changed the result, * * * this Court upon appeal will reverse.’ ” (Emphasis added.) Quoting De troit v Fidelity Realty Co, 213 Mich 448, 454; 182 NW 140 (1921).
In the instant case no competent testimony going to the merits which may have changed the result was excluded. Those factors cited in L & L and In re Lansing Urban Renewal justifying an award of going-concern value were not present in the instant case. Respondents did not lose their entire business because of the condemnation of their residential property. The location of their residential property was not crucial to the conduct of their downtown photography business. Their business did not consist solely of environmental photography. Respondents drew customers because of Mr. Gaffield’s acclaim as a photographer, not because he took, on some occasions, outdoor photographs. Relocation was possible, though admittedly difficult, as is evidenced by the fact that respondents have subsequently purchased comparable property for their residence. Nor did respondents have a monopoly on environmental photography, much less the photography business as a whole, in Plymouth, as was the situation in L & L. Also, the going-concern value of respondents’ photographic business did not derive primarily from the location of their residence. Unlike L & L, respondents’ customers were not a captive audience. Finally, unlike the restaurant in Lansing, respondents’ move did not "so greatly impair its business as to nearly destroy it”. Also, unlike the restaurant, ownership of the photography studio by respondents in the instant case is vital. The instant case does not involve a situation where "the premises were adapted for a particular highly productive use”. In re Lansing Urban Renewal, supra, 165. The trial judge did not abuse her discretion in refusing to allow evidence of going-concern value to be submitted to a jury and in ruling on this as a "matter of law”.
It is, therefore, our conclusion that the appropriate measure of value was applied and respondents did not fall within the exceptions set forth in State Highway Comm v L & L Concession Co, supra, and In re Lansing Urban Renewal, supra.
Our resolution of the propriety of the condemnation award is dispositive of respondents’ other issues on appeal.
Affirmed. No costs, a public question being involved. | [
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Steere, J.
This action in replevin grew out of a levy by defendant in his official capacity as under-sheriff, made under authority of a process issued in an action brought against the Sheffer Lumber & Timber Company, a corporation, by Francis A. Judie to recover a balance which said company owed him for timber he had sold to it. While Lundy is the nominal defendant by reason of his official action in seizing the lumber, Judie is the real defendant in interest, and ■ the actual issue is between him and plaintiff, Lang, who replevied said lumber claiming title and prior right thereto through an assignment from said company. It is conceded that before the instant case was tried Judie had obtained a judgment against the Sheffer Lumber & Timber Company for a balance due him on timber he had sold it, amounting, with costs, to $902.87. The lumber levied upon was stock manufactured by said company in the course of its business from timber it had purchased from Judie or others for that purpose. The exact date of Judie’s judgment is not disclosed in this record, neither is the nature of the process under which the officer seized the lumber made clear; the court designating it as an execution levy after judgment, and counsel as a seizure under an attachment. Which it was, however, is apparently unimportant, as it is undisputed that a lawful seizure was made if the lumber belonged to said company, and this action is based on the claim that it did not, but was the independent and distinct property of Lang. At the conclusion of the evidence on trial of the instant case, counsel for plaintiff requested a directed verdict in his favor, and counsel for defendant, waiving return of the property, requested a directed verdict against plaintiff and his bondsmen for the conceded amount of Judie’s judgment (which was less than one-fifth of the appraised value of the lumber seized) ; counsel for each side urging that the case involved no material issue of fact for a jury and the court should dispose of the same as a matter of law. A verdict was directed in favor of defendant for $902.87, being the amount of the judgment in Judie v. Sheffer Lumber & Timber Co., to satisfy which the levy in question was made.
The points relied upon by plaintiff, as stated in his counsel’s brief, are:
“I. That the court erred in not instructing a verdict for the plaintiff at the close of the testimony for the following reasons: (1) That the assignment to plaintiff was uncontradicted, valid, and passed the property covered thereby, including the lumber in question, to him; (2) that the defendant could only attack the assignment on the ground that it was fraudulent; or (3) that it was an assignment for the benefit of creditors, and neither defense could be made because they had not been pleaded.
“II. That the court erred in instructing a verdict for the defendant for the same reasons.”
The Sheffer Lumber & Timber Company was organized as a corporation on the 13th of November, 1912, under Act No. 232, Pub. Acts of 1903, with a capital stock of $15,000 divided into 1,500 shares of the par value of $10, of which H. F. Griffin had -890 shares, B. F. Sheffer 600 shares, and Miss M. A. Carney, their stenographer, 10 shares, making the requisite number of persons to incorporate. Its office and place of business were at Kalamazoo, Mich., where it entered upon the business of purchasing timber and manufacturing the same into lumber. The articles of incorporation show that its capital stock was all paid in, consisting of $3,000 in cash and $12,000 in other property, mostly logs and timber. Timber was purchased by the company from various owners in the vicinity of Kalamazoo, and amongst others from Judie, with whom a contract was made shortly after the company was organized, in 1912. About the time of its organization plaintiff loaned said company $3,000 at the solicitation of Griffin, and not long thereafter appears to have become quite actively interested in its affairs. At what date he became a stockholder is not disclosed, but before June 13, 1913, he held all the 1,500 shares of stock of the corporation, except the 10 shares held in the name of Miss Carney, the stenographer, who was one of the original incorporators. H. K. Nicolls, who had charge of the books and looked after the general operations of the company, states that he was employed for that purpose by plaintiff in January, 1913, shortly after the organization of the company. Griffin and Sheffer, two of the three incorporators, and who, together, originally had all but 10 shares of the capital stock, dropped out of the organization and transferred all their stock to plaintiff at some time before June 13, 1913; Griffin disappearing with some money belonging to the company, as plaintiff testified. The dates of their retirement are not disclosed, though the circumstances indicate that their connection with the concern was of comparatively short duration, for Judie and others who sold timber to the company testify to receiving payments from plaintiff by checks of the company signed by him, personally, or as secretary and treasurer, during the early part of 1913, some as early as January, in which month he hired Nicolls to take charge of the books and look after operations, and on April 29, 1913, plaintiff wrote Judie, personally, in answer to a letter addressed to the company urging payment, in part as follows:
“Yours of recent date on hand addressed to the Sheffer Lumber & Timber Company, and will say that as- assignee of this company I am trying to straighten up all matters in an honest, peaceable manner and am now trying to do the same with you. While Mr. Sheffer is not in any way connected with this company he has kindly consented to call on you as soon as possible and come to some mutual agreement satisfactory to you. * * * I do not want you to feel that you are going to be beaten out of a cent as long as I am interested. I am very sorry we have had so much delay but I assure you I am very sorry and it is no fault of mine and will hurry everything along just as fast as I can, and will see that you get everything you have coming.”
On May 29, 1913, Judie wrote plaintiff asking for money due him for logs, and on June 9, 1913, Nichols replied for plaintiff as follows:
“Dr. Lang wishes me to advise you that just as soon as he can, possibly, he will be down to see you and settle up the outstanding account. We are getting our business settled up as fast as possible, and will be sure to call on you in the near future. With kindest personal regards, we remain, very truly yours.
“Sheffer Lumber & Timber Co.,
“By Hugh K. Nicolls.”
Plaintiff’s claim of distinct ownership of and right to replevy the property seized is predicated on an alleged assignment of it made to him by the company on June 14, 1913, at a time when, as he describes it, he was “practically the whole company.” Just at what time Griffin and Sheffer assigned their stock to plaintiff he was unable to say, but he testifies that hoping to “carry on the business to clear some of the money for myself that I had put into it, and I knew that it was necessary to have three stockholders,” he went to an attorney named Grace, who had his office in the Majestic building in Chicago, and asked “if he would take a little stock to make a third party.” Grace testified that, as attorney for plaintiff and to protect his interest, he became a “nominal stockholder” to the extent of 10 shares and accepted the position of president of the company; that he did not then, nor at the time of the trial, know the capital stock of the corporation, when it was organized, never saw its articles of incorporation, did not know what assets it had or what debts it owed, nor whether it was insolvent or not, did not care, and it did not concern him. After Grace accepted the stock, they proceeded to revive the moribund corporation by holding a meeting at which Grace was elected president, Miss Carney vice president, and Lang secretary and treasurer. Thereupon a resolution was at once introduced and unanimously carried authorizing the president to give Lang a note of the corporation for $11,890 and assign the assets of the company to him to secure payment of said note, with full power to sell and dispose of the same “for the purpose of reimbursing himself to the amount of said note and the accrued interest,” reciting that the action was in consideration of moneys loaned from time to time to the Sheffer Lumber & Timber Company to enable it to carry on its business.. On the following day Grace executed said note and assignment accordingly. The assignment was never filed or recorded, and no copy of the resolution or record of these meetings was produced; it being claimed they had been lost.
An annual report of said Sheffer Lumber & Timber Company filed with the secretary of State was made and sworn to by plaintiff purporting to give its condition December 31, 1912. It shows that all the debts owing by the corporation were but a single item of $3,000 unsecured, and assets amounting to $14,500 including $2,500 cash on hand. Lang is shown to have had 1,390 shares of stock, and the officers are given as Grace president, Carney vice president, and Lang secretary-treasurer. The time of filing this document is not disclosed, but its manifest inconsistencies may perhaps be accounted for by it apparently having been sworn to by Lang on the 21st of August, 1913.
The fact that plaintiff acquired ownership of all, or practically all, the stock of the company, did not destroy its legal entity as a corporation, nor divest it of legal title to its property, although it thereby became for the time dormant owing to lack of sufficient members and requisite officers to legally conduct its business as a corporation. Plaintiff later revived it into legal form for corporate activity by adding a dummy stockholder and electing a dummy president. His only suggestion of title and right to the property in question is based upon an assignment obtained through that channel. His counsel well presents the controlling question in the point urged that the assignment to plaintiff was uncontradicted, valid, and passed the property covered thereby, including the lumber in question, to him.
The burden of proof is upon plaintiff to establish by a preponderance of evidence that this assignment is valid and did pass the property to him, as between him and the judgment creditor, Judie. A lack of distinct dates and details in matters peculiarly within his knowledge or available to him cannot be supplied by inferences in his favor; but it is shown without controversy that almost from the beginning he was understood by those dealing with the company to be a member of it, that he hired Nicolls for a responsible position with the company, assumed to do business for it both in its name and his own, fairly justifying the inference that he was an important, responsible, and controlling member of the concern, even advising Judie in April, over his own signature, that he was in control as an assignee, and promising that he would hurry everything along and see that Judie got all that was coming to him. So far as the record discloses, he did all these things without any legal authority emanating from the corporation itself by proper official action and at a time when, according to portions of his own conflicting testimony, he was not an officer, nor even a stockholder, of the lumber company.
Of the corporation and his relations with it, plaintiff testifies in part as follows:
“I couldn’t say how many shares there were. $10 was the par value of them, I think. I think Miss Carney has 10, Grace has 10, the rest I have on assignment, assigned to me. I am practically the whole company. I know nothing about whether the company had cash and timber on hand or not when it was organized. I don’t think there has been any change in the capital stock. As secretary and treasurer, it has been my duty to make reports to the secretary of State, and I have done so. When I made such reports, I had to have knowledge of the condition of the company, and the reports were truthful. * * * I bought no stock. The stock was assigned to me. I got my stock from Sheffer and Griffin. * * * After they had organized and started, I loaned them money. So far as I know, all the stock is paid up. When I made the annual report I made, the company was insolvent. My report will show the insolvency.” (His only report shows but $3,000 indebtedness and assets amounting to $14,500.) “I was acting as secretary and treasurer of the company in January, 1913. I was elected to that position in June, 1913. I did make some checks signing my own name personally, not the Sheffer Lumber & Timber Company, made some checks to individuals in payment and taking security from the company in payment of these deals. * * * If I am not mistaken, I signed checks at that time ‘Sheffer Lumber & Timber Co., W. W. Lang,’ and also ‘Acting Secretary and Treasurer,’ and probably some of them may not have had ‘Acting’ on.”
Plaintiff also stated in one portion of his testimony that he had a chattel mortgage upon the assets of the company to secure money he loaned it, which was never filed, and which his own counsel said at the trial he had not before heard of, but later in his testimony said “it would be better to say” an “assignment” of some “contracts which are not in existence now,” and he did not know where the assignments were. Further testifying, he said:
“I meant, by saying that I was assignee, that owing to the note that I had for $3,000 backed by a mortgage of all- the assets of the company was past due, and I consulted an attorney at the Bank building, the same building I am in, and he advised me to consider that an assignment. I can’t say just when it was that Sheffer and Griffin made an assignment, to me of their stock. It was before the time that Mr. Grace became president. There was no assignment to me or transfer to me to secure the note until Mr. Grace became president.”
The acquisition of practically all stock of this company by plaintiff, thus reducing the stockholders below the minimum number requisite to organize and officer it as a corporation, while it did not dissolve of divest it of the legal title to its property, suspended its powers and the exercise of its franchise rights until the stock was again distributed in good' faith among sufficient owners to meet the statutory requirements, and its powers of corporate activity revived by proper organization and election of officers to manage its business. In the meantime it retained, however, an artificial personality distinct from its stockholders,' and its assets were holden for its lawful debts.
'Just when this corporation reached that condition of suspense -is not shown, and- plaintiff states he does not know. It is fairly inferable that it was before his letter of April 29th, when he- claimed to be in charge as assignee. He continued thereafter to transact business in the name of this dormant corporation as though-it was active and operating with corporate vitality according to law. He could not thereby impose upon it, while in that condition and incapable of corporate action, any indebtedness arising from his management of the business in its name. Owning and controlling this corporation in fact and effect, if not in law, by reason of his ownership of its stock, he proceeded to use its abstract corporate entity as .an instrument to get direct title to its assets against other creditors by nominally, and for that particular purpose, transferring 10 shares to his attorney, electing him president and having him as such sign the assignment asserted here against the levy of a creditor of the corporation upon its property to collect a valid corporate' debt.
“The abstraction of the corporate entity should never be allowed to bar out and pervert the real and obvious truth.” Seymour v. Cemetery Ass’n, 144 N. Y. 333 (39 N. E. 365, 26 L. R. A. 859).
It is obvious that Grace had no actual interest in this corporation as a bona fide stockholder. His only interest or concern in relation to it was as attorney, to assist his client. Beyond that the corporation as such was nothing to him, and he so states. He was but a nominal stockholder and a figurehead president, made so at the behest of his client for the particular purpose of making this assignment to his client, with no thought of the rights or interests of the corporation of which he assumed to be chief officer. However near the proceeding on its face came within the letter of the law, in the spirit of the law it approximated a sham.
The Sheifer Lumber & Timber Company is not, as such, a party to this litigation, and protection of its individual corporate rights is not involved. The contention is between two parties claiming, each against the other, a right as creditors to certain of its assets. Judie as an outside judgment creditor claims under a levy, and Lang, owning practically all its stock and “Practically the whole company,” claims under an assignment from the company. Judie did not, and does not, seek to hold Lang personally liable as the sole owner or principal stockholder of the corpora tion, nor by reason of the promises made in writing to pay what was due him for timber sold the company. He is seeking to collect it by a levy on the property of the corporation, whose alleged corporate action under Lang’s direction, taken after Judie’s claim was due and payment demanded, is now interposed in Lang’s behalf to defeat the levy. Judie was manifestly pressing his claim and apparently in a position to protect it and enforce payment when Lang wrote him, on April 29th, claiming to be assignee of the company, proposing peaceful methods and forbearance, giving assurance .that Judie would not be beaten out of a cent while Lang was interested, and promising to see that he got everything due him. That Judie relied on these representations and assurances, forbore, changed his conduct, and thereby altered his condition, as subsequently developed, is fairly shown. On May 29th, just a month after receiving that letter, he wrote Lang stating that parties he owed were waiting for their money and urgently asked payment of what was due him for logs. On June 9th a letter, claiming to be at Lang’s dictation, signed “Shelter Lumber & Timber Co., by Hugh K. Nicolls,” advised Judie that Lang would be down as soon as he possibly could and settle his account. Having thus quieted Judie temporarily, Lang, on June 18th, went to his attorney Grace and created him a “nominal stockholder,” followed by proceedings resulting in the assignment on which he relies, executed, by Grace as president, on June 14th. Courts of law have jurisdiction to recognize an equitable estoppel in pais (Barnard v. Seminary, 49 Mich. 444 [13 N. W. 811]), and the same need not be especially pleaded (Dean v. Crall, 98 Mich. 591 [57 N. W. 813, 39 Am. St. Rep. 571]).
The salient features of this record as disclosed by plaintiff’s own evidence, as well as lack of evidence which if in existence was apparently at his command, sustain the conclusion of the trial court that the alleged assignment on which plaintiff relies cannot be recognized as valid to establish in him a paramount title as against Judie’s levy.
The judgment is affirmed.
Brooke, C. J., and McAlvay, Kuhn, Stone, Ostrander, Bird, and Moore, JJ., concurred. | [
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] |
Brooke, C. J.
Complainant seeks a divorce from the defendant on the grounds of nonsupport and extreme cruelty. She was married to the defendant on July 14, 1910, at which time both she and defendant were just under 21 years of age. Defendant became of age on October 12, 1910, and at that time received from the estate of his foster mother in Chicago a fortune of about $100,000. He immediately embarked on an extravagant scale of living. He purchased a dry goods business in the town of Shelby, and for a short time seems to have made a pretense of doing business there. He bought some lots in Shelby and proceeded to erect an elaborate residence thereon. He seems to have spent money freely in every direction, with the result that before he was 22 years of age he had dissipated practically his entire fortune. A receiver had been appointed when his financial difficulties became oppressive, and after his debts were paid there remained about $4,000. This sum was divided by the receiver between the complainant and defendant. Complainant loaned her $2,000 to the telephone company at 6 per cent, interest, taking a secured note therefor.
The defendant with his last $2,000 went on a trip to Florida and there became interested in a land scheme, in which he lost all the money he had. While in Florida he sent to Tiffany & Co., of New York, for three diamond rings valued at about $1,800. The rings were sent on consignment, the understanding being that he should select one, pay for it, and return the other two. As a matter of fact, he kept all three and paid for none. One of these rings he presented to a young lady in Florida, to whom he was very attentive during the winter of 1912-1913, and to whom, although he was married, he was said to be engaged. Another one of the diamond rings he seems to have exchanged for a motor boat in Florida. What became of the other the record does not disclose. Later, in Chicago, he was threatened with criminal prosecution for passing worthless checks. Information of his situation coming to the ears of his wife, she • borrowed $500 with the aid of her father, and went to Chicago and settled his difficulties. Later still the Tiffany claim was sent on to an attorney for collection, or for the institution of criminal proceedings for embezzlement, against defendant. Whereupon complainant took the note representing her $2,000, ■disposed of it, repaid the $500 which she had borrowed to use in Chicago for defendant’s purposes, and with the balance paid the Tiffany claim. Only $80 remained after these matters were adjusted.
Prior to her marriage to defendant, complainant had a position as a telephone operator. After her marriage, although she resigned her position in the telephone office, she, with her husband, continued to live in the home of her father, Mr. Morningstar. Never since her marriage to defendant has she had a home apart from her father, and during all the time since her marriage her husband has not only failed to pay her father for her board or the board of himself, for he likewise lived with her father with complainant whenever he was in Shelby, but he likewise borrowed small sums of money from his father-in-law totaling about $50 or $75. Early in 1913 complainant again secured a position as telephone operator. She testifies that at that time the defendant had furnished her absolutely nothing by way of support for upwards of a year. He continued, however, from time to time to reside in Shelby until October, 1913, when without notice he disappeared. The bill in this case was filed on January 6, 1914. It is the testimony of the complainant that for more than two years she had received no support of any character from the defendant. She testified to the fact that he had lost or squandered his fortune, but further said that he was a young man of fair education, of good health, and amply able, if willing, to furnish her with an adequate support. Complainant’s testimony as to defendant’s failure to work or support her was corroborated by that of her- father, who testified that he had boarded his daughter from the time of the marriage on.
The defendant was personally served with process in the case, but failed to appear. The learned trial judge who heard the case declined to grant a decree ■to complainant, being of the opinion that the testimony was insufficient to support the charge of gross, wanton, and cruel refusal to support within the meaning of the statute. Although the record does not clearly disclose his reasons, because no written opinion was filed, he seems to have been somewhat influenced by the fact that the fortune of the defendant had been squandered by him, during the first year of his married life, and that complainant might have participated in spending the money as readily as her husband. The record does not clearly show this to have been the fact, but even if it did, we are of opinion that the duty of a fairly educated healthy young man to support his wife is not abrogated by reason of the fact that he and his wife together had theretofore foolishly joined in squandering his patrimony.
The record shows that some time during their married life defendant caused to be conveyed to complainant 160 acres of wild land in Minnesota. The value of this land is not shown, although it appears affirmatively that it is located a long distance from any railroad and is absolutely unsalable, and at the present time it would seem to be a liability rather than an asset to the complainant, as she testified that the taxes which she was obliged to pay amounted to about $30 per annum.
In addition to the charge of nonsupport, the bill contains a charge of extreme cruelty, based upon the averment that the defendant improperly associated with women other than his wife. Whether the testimony in support of this charge is sufficient to warrant relief we find it unnecessary to determine, for the reason that the record clearly establishes the following undisputed facts:
(1) The husband is of good health and sufficient ability to earn a living for the wife.
(2) The wife is without means of support, except such as she earns for herself as a telephone operator.
Under this evidence we think it clear that the defendant’s refusal to support is gross, wanton, and cruel within the meaning of the statute. 3 Comp. Laws, § 8622 (4 How. Stat. [2d Ed.] § 11459); Brown v. Brown, 22 Mich. 242; Cary v. Cary, 106 Mich. 646 (64 N. W. 510); and Whitacre v. Whitacre, 64 Mich. 232 (31 N. W. 327).
The decree of the court below is reversed, and a decree will be entered in this court in accordance with the prayer of complainant’s bill of complaint.
McAlvay, Stone, Ostrander, and Moore, JJ.; concurred with Brooke, C. J. Kuhn, Bird, and Steere, JJ., concurred in the result. | [
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Stone, J.
The plaintiff, an unmarried woman about 24 years of age, brought this action to recover damages resulting from her falling into an excavation made by the defendant in the course of the construction of its tracks in the city of Detroit. In June, 1911, the defendant was building a track on Grandy avenue north from Gratiot avenue, in said city. One block north of Mack avenue, Grandy crosses St. Joseph street at about right angles; the latter street running east and west. Grandy avenue at this time was a paved street; St. Joseph was not. There is a depression in Grandy avenue between Alexandrine avenue on the north and Mack avenue on the south, with the lowest point at St. Joseph street, which is 5.2 feet lower than Alexandrine and 1.3 feet lower than Mack avenue. An excavation 7 feet wide and about 22 inches deep, measured from the top of the pavement, had been dug in the center of Grandy extending north and south from St. Joseph street for some distance beyond, in both directions. Temporary crossings at street intersections were required by the city. There was no dispute that such a crossing had been provided at St. Joseph street for vehicular traffic. It was made of ties and planks laid lengthwise in the trench for its entire width and depth. Whether there had also been a foot passenger crossing provided on the south side of St. Joseph street in the line of the sidewalk prior to the accident in question is disputed in the evidence. Between 9:30 and 10 o’clock on the night of June '4, 1911, the plaintiff, accompanied by her mother and sister, was returning to her home going east on St. Joseph street. They lived a little over a block east of Grandy avenue, and their way lay across the latter avenue. When they reached Grandy avenue, the plaintiff, the foremost of her party, stepped or fell into the excavation at a point in the line of the sidewalk on the south side of St. Joseph street. She and her companions testified that there was no light on the crossing. A somewhat severe electrical storm, accompanied by what was claimed to be an unusually high wind and a heavy rainfall, raged in Detroit from at least 8 until nearly 10 o’clock of the night in question.
The railway company had provided sufficient lanterns to light every street intersection, in the line of the excavation, with eight lights. It had also put two men to the task of lighting the lights and seeing, by patroling the district, that they were kept lighted. It was the claim of the defendant, and it gave evidence to support that claim, that these men had placed lighted lanterns at the intersection in question prior to the storm. There was evidence that the storm was of sufficient violence to put out the lights.
The declaration charged the negligence to be that there were no lights at this place at the time of plaintiff’s injury, and it was claimed upon the trial that the defendant was negligent in failing to provide a sufficient force of men on the job to keep the lights burning during and after the storm, and that the men provided were negligent in not seeing that any lights put out by the storm were relighted before the injury. Owing to the topography at the scene of the accident, large quantities of water accumulated in the trench at this point. When the plaintiff went into the excavation, she was completely immersed up to her chin. In falling, she claimed to have seriously sprained and injured her ankles, and at the time of the trial it was claimed that her left ankle was weak and impaired, and more or less permanently injured.
The pleadings were silent upon the subject, but the evidence disclosed that some time previously the plaintiff had been suffering from a species of goiter, called “Graves” disease, and it was claimed that her condition in this respect was aggravated principally from the shock.
The evidence offered on the part of the plaintiff was of a very positive nature that there was an entire lack of lights at the time and place of the accident.
On the part of the defendant there was evidence tending to show that the lights were burning before the storm. This testimony was given by one Kolb, who testified that he and one Dooley, who was dead at the time of the trial, had the territory lying from Forest avenue at tlie north to Gratiot avenue on the south of St. Joseph street. He testified on direct examination as follows:.
“Q. How many lights, do you remember, did you have at St. Joseph street, at Grandy — just tell us how many lights?
“A. Oh, we had all the time four, and four on the road; that makes eight altogether.
“Q. On the crossing?
“A. Yes, sir. * * *
“Q. Before this heavy wind came up, were all the lights lit on St. Joseph street?
“A. Yes; all over.
“Q. Now, do you know whether the wind blew those lights out or not?
“A. Oh, yes, tipped the lights over — the rain and the wind blew out the lights, and the city lights was gone out the same way for a while, too.
“Q. Now, after the lights on St. Joseph street were blown out by the wind, did you and Dooley come along and relight them again?
“A. Yes.
“Q. And do you know whether they were blown out again?
“A. Not after that
“Q. Not after the storm?
“A. No, then the wind lay off.”
He testified to a heavy rain and storm, and that he went under cover over on Mack avenue.
“Q. When it stopped raining, did you go back on the job?
“A. Right away, when the lights was put all in shape.”
He further testified that they had plenty of lights, whicn consisted of lanterns properly trimmed and in condition.
We'infer from this testimony that the relighting testified to by this witness, in all probability, occurred after the injury of the plaintiff. The testimony of this witness was somewhat weakened by his cross-examination, which was lengthy, and from which we quote a small portion only. The witness testified that he and Dooley divided the work of lighting lanterns between them:
“Q. Some nights he would take the upper end and some nights you would take the lower end?
“A. Yes, sir.
“Q. To light these lights?
“A. Yes, sir.
“Q. Which end did you usually take — the lower end or the upper end?
“A. I was on the back end.
“Q. On the north end?
“A. On the north side.
“Q. Which end did you take on Sunday night — the -north end?
“A. I don’t know.
“Q. He lit the lights on one end, and you lit the lights on the other?
“A. We lit them all on the box.
“Q. I say, he would light them on one end of the route and you would light them on the other?
“A. Yes, sir.
“Q. Where did the north end of the route end — at what street did you divide your division?
“A. On Forest avenue.
“Q. So one of you would work up from Gratiot to Forest, and the other would work up from Forest to the other end?
“A. Yes, we had so many streets.
“Q. But you don’t know on the night of June 4th, on Sunday night, which end one of you had, the upper and which had the lower end?
“A. No, I cannot tell anything about that.
“Q. You cannot tell anything about that?
“A. No, I cannot go on to count that. ■
“Q. If you had the upper end, you stayed all night at the upper end?
“A.-Yes, and we walked up and down.
“Q. And if he had the lower end he would stay all night at the lower end?
“A. Yes, sir.
“Q. You would walk up and down your division?
“A. Yes, sir.
“Q. And he would walk up and down his division, but you could not tell which division you were in that night?
“A. No.”
There was evidence tending to show the velocity of the wind and the amount of rainfall. The inspector of the United States weather bureau testified, from the official records, that at 8:52 p. m. the velocity of the wind on the Majestic building was (a north wind) 59 miles, and at .9:06 (northwest) 38 miles, and at 10:23 (north) 28 miles an hour; that the wind movement was general throughout the city; that the rainfall was general over the city; and that the entire rain that fell during the entire day of 24 hours was .62 inch. This same witness testified that it rained continuously from 8:43 to 10:02 p. m., accompanied by thunder. There was evidence also tending to show that the wind was blowing at 10 o’clock.
The trial took place a year and nine months after the injury, and the plaintiff and her witnesses, including her physician, testified that she still suffered from her injuries, and that her left ankle was impaired and weakened. After plaintiff’s physician had testified in chief, defendant requested-an examination by its physician, Dr. Sanderson, with a view of qualifying him as a witness. Such examination was made in the presence of Dr. Jaeger, the plaintiff’s physician. After such examination Dr. Jaeger was recalled by defendant for cross-examination, and testified he witnessed the examination made by Dr. Sanderson. Upon redirect examination of Dr. Jaeger the following occurred:
“Q. Do you know whether or not, during the examination yesterday, there was any manifestation of pain on the part of the patient? (Objected to as incompetent and self-serving.)
“Mr. Mertz: The examination took place after the adjournment of this case yesterday.
“The Court: I think he may testify to any objective symptoms. Note an exception.
“A. Yes, sir.
“Mr. Fitzpatrick: I move to strike out the answer as incompetent. The question was whether there was any exclamation of pain.
“The Court: Manifested. I think he may testify to any objective symptoms that he saw.
“Mr. Fitzpatrick: I want the record to disclose the fact that the examination was being made by a physician of the defendant, to testify as a witness in this case — made for such purpose to the knowledge of the plaintiff herself. I therefore, under those circumstances, assert that anything in the way of manifestations or of exclamations are incompetent and improper.
“The Court: I think, with reference to that, he may testify to any manifestations — to any objective symptoms shown at such examination of the plaintiff.
“Q. What objective symptoms as to the manifestation of pain were there, if any?
“A. What do you mean — by visual signs, what I saw?
“Q. Exactly.
“A. I did not see any visual sign of pain excepting an exclamation from the plaintiff when the doctor—
“Mr. Fitzpatrick: That is objected to. That is the thing I say is improper — exclamations of pain.
“The Court: I think exclamations of pain may be given if it was a pure exclamation.
“Mr. Fitzpatrick: If there is any element of doubt in your Honor’s mind, I would be willing to submit, authorities. Exclamations made under those circumstances are highly improper, I believe, under the authorities.
“The Court: Very well; put it in at your peril.
“Mr. Fitzpatrick: Also on the strength of the doctor’s last answer that there were no visible signs —no objective symptoms — I move to strike out the answer as incompetent. The answer just before that which was ‘yes,’ as to whether manifestations of pain were made.
“Mr. Mertz: I am willing to have that word ‘yes’ stricken out.
“The Court: Strike it out.
“Mr. Mertz: I understand exclamations of pain are objective symptoms — something you can hear— if it was manifest to this doctor, as a medical man, as a pure manifestation of pain.
“Mr. Fitzpatrick: Counsel is laboring under an entire misapprehension of the rule with reference to objective symptoms. Exclamations of pain have never, to my knowledge, before been categoried as objective symptoms.
“Mr. Mertz: Well, that is true, strictly speaking. I want to know whether there were any exclamations of pain which were apparent to you to be pure exclamations of pain?
“A. When Dr. Sanderson manipulated the limb she said it pained her. I saw when Dr. Sanderson manipulated the limb she said it pained her.
“Mr. Mertz: That may be stricken out.
“Mr. Fitzpatrick: I except to the statement, and I object to the attempt to cure the error. It has been put in. Note an exception.
“The Court: Note an exception.”
Later Dr. Sanderson was called as a witness on behalf of defendant, and in the course of his cross-examination the following occurred:
“Q. Did she manifest any tenderness in the examination you made?. (Objected to as incompetent.)
“The Court: I think you may ask if she flinched— did she flinch under it?
“A. She said it pained her.
“Mr. Fitzpatrick: Object to that and ask that it be stricken out.
“The Court: That may be stricken out.
“Q. Did she scream?
“A. No, sir.
“Q. She did not flinch?
_ “A. She drew her foot away. She remarked at the time it pained her, and drew her foot away.
“Mr. Fitzpatrick: I move to strike that out.
“The Court: That may be stricken out.
“Q. Did she flinch?
“Mr. Fitzpatrick: I move to strike out the answer as incompetent and self-serving — that she flinched. I move that it be stricken out — she drew away her foot —as self-serving and incompetent.
“The Court: Let it stand. Note an exception.
“Q. To your eye — an experienced eye of a medical man — while you made that examination, were there any signs of pain? You would not say there were not, would you? • •
“A. In an examination?
“Q. Yes.
“A. On deep pressure, I probably elicited pain, but I would expect that.
“Q. You would expect that?
“A. Yes, sir.
“Q. Now, is it possible for a person, situated as this young lady was situated, to fall into an excavation, ■filled with cold water, on a dark night, and receive a severe nervous shock such as she did receive?
“A. Certainly it is possible for anybody.
“Q. Whether they are well or sick with goiter?
“A. Certainly. •
“Q. Is it possible to get a permanent nervous injury from the fall?
“A. The possibilities are unlimited; certainly it is possible. You can do all kinds of damage with a fall. I would attribute the aggravation of her condition after the accident to the injury.
“Q. To the accident?
“A. Yes, sir.
“Q. There is nothing else in God’s world to attribute it to, is there?
“A. No, sir.
“Mr. Fitzpatrick: Doctor, you said there was some pain on deep pressure, such as you might expect in any case. Why do you say that?
“A. On deep pressure on the left ankle over the tendon that runs down; that is, just back of the little toe, it was severe pressure that elicited pain.”
At the close of all the evidence in the case, the defendant moved for a direction of a verdict in its favor, on the ground that there was no evidence of any of the several acts of negligence charged in the amended declaration. The motion was denied, to which defendant excepted. Whereupon the defendant requested the court to charge the jury to the same effect, which was refused. In the course of its charge to the jury the trial court used the following language:
“ (If the intersection was not sufficiently lighted by the proper lights and usual lights that are placed at such places, and if you find that the plaintiff was in the exercise of ordinary care — such reasonable care as a party under like circumstances should exercise-then, of course, the plaintiff would be entitled to a verdict at your hands.)
“Mr. Fitzpatrick: Now I direct your honor’s attention right there to the statement that the crossing was in the line of the sidewalk. I understood the case was to be submitted—
“The Court: I am going to say there is no doubt about that fact; there is no question about that. Of course, gentlemen of the jury, I do not mean to say that it was essential to lay planks precisely over the excavation — precisely at that point — (but, of course, if planks were not laid over at the intersection of the southerly sidewalk with Grandy avenue, it should have been so lighted at that point as to indicate to them that there was danger in passing over what would be a continuation of the sidewalk. Of that, of course, there can be no question.)
“(You are also instructed that if this excavation at this place was left open and unguarded on the evening in question without signal lights or other warnings of approach thereto, so that the plaintiff or any other person in coming upon it would not be warned of its existence, then this crossing is not in a condition reasonably safe and fit for travel, and the plaintiff or other pedestrians could not be expected — could not necessarily be expected to be on the lookout for such a situation — that is to say, if they had no knowledge of that, of the existence of it, and there was nothing there to indicate, gentlemen of the jury, that there was this excavation, they certainly could not be expected to anticipate that the excavation was there, and I charge you, therefore, if you find from the evidence in this case that such a situation existed at this particular place, and the plaintiff herself, while in the exercise of ordinary care and free from negligence on her part, while passing over at this intersection, fell into the excavation, then it would be your duty to return a verdict for the plaintiff for such damages as will compensate her.) * * *
“Now, on the part of the defendant, I think I may say, as I said before, that it is not essential, that I know of, that a crossing should have been built in the line of the southerly sidewalk. (I think it ought to have been sufficient if a sufficient walk was built in the center of the street, as has, been testified^ to, but still in that connection you may bear in mind the testimony of the city inspector that such a walk had been provided at that place, and I say again to you, gentlemen of the jury, that if such walk were not built there would be, of course, more necessity for the putting of lights to indicate the excavation and the maintenance of such light while put there.) * * *
“(If the jury should believe the walk was removed or disturbed by trespassers or others over whom they have no control at any time after Saturday night or before the accident happened, then I charge you that this would not be, under the evidence in this case, negligence for which the defendant would be liable to the plaintiff. That is undoubtedly so, gentlemen of the jury, but the necessity to guard the excavation which exists, of course,- would remain, because there would be necessity for watchmen, and the necessity to guard if the sidewalk or crosswalk had been taken up.)
“I am asked to charge you that the defendant is not legally chargeable with the results of the storm which is shown to have been of unusual severity, nor was it in duty bound to anticipate the effects of the elements upon its crosswalk; and if you find it had constructed the same with reasonable care, if you believe the storm or the rain which fell with it caused the walks to become unsafe, submerged, or to float away, then the defendant cannot be said to be negligent or liable for injuries which resulted approximately from such condition. I think that is so, gentlemen of the jury (but, as I said before, if the storm was of such severity at that time as to render the force of watchmen upon the job insufficient to light the light and sufficient time had intervened for the city railway to have put on — the defendant in this case to put on a larger force of men — I think, gentlemen of the jury, under such circumstances, it may have been requisite for them to have placed the light in such a position, if it was not there before, as to have given a warning of the existence of the excavation, but not otherwise).
“Under tne evidence in this case, I think you must find defendant had upon the work, at the time of the accident, a reasonably sufficient number of lanterns, properly supplied and properly equipped to provide all necessary warning and signals; and if you believe from this evidence that eight of those lanterns were placed at or near the crossing in question, and were lighted and so placed, gentlemen of the jury, as to afford a warning of the excavation, and if the same were blown out by the wind that prevailed, or put out by the rain at that time, then. I charge you that the defendant would not be responsible for the action of the elements, and the fact, if you find it so, that the lights were not going when the plaintiff attempted to cross, would not be negligence for which the defendant would be liable to the plaintiff. I think that is so (except, gentlemen of the jury, as I said before, if sufficient time intervened for the agents of the defendant to have lighted these lights, and they failed to do so, then under the existing circumstances, of course, gentlemen of the jury, it would be the same as if the lights had not existed).”
The jury returned a verdict for the plaintiff in the sum of $1,000, and judgment was entered accordingly.
The defendant has brought the case to this court by writ of error. The errors assigned upon the charge appear in parentheses in that portion of the charge above quoted. Error is assigned also upon the rulings of the court in receiving the evidence, above quoted, of Drs. Jaeger and Sanderson. The errors raised are discussed by the appellant under the following heads:
(1) That there was no proof of negligence, and the court should have directed a verdict for the defendant.
(2) That the court erred in submitting to the jury the question of whether the intersection was lighted by proper lights, independent of the question of whether the lights had been put out by the storm, or were seasonably relighted after the storm subsided.
(3) That the court erred in submitting to the jury the question whether the railway furnished a sufficient number of watchmen to properly guard the intersection, and whether sufficient time elapsed after the subsidence of the storm, and before the accident, to permit the lights to be relighted that had been extinguished thereby.
(4) There was error in the admission of the testimony of the two physicians as to complaints of pain by plaintiff, and her flinching, at the time when she was examined by defendant’s physician, in order to qualify him as a witness ill the case.
The last assignment of error is as follows:
“The charge of the court on the question of whether there were lights on the crossing, and the duty of the defendant to have such lights there, and lighted at the time of the accident, and the duty of the defendant to have watchmen at the scene of the accident, if the lights were not lighted, or had been put out by the storm, considered as a whole, was erroneous, inconsistent, and confusing, and well calculated to mislead the jury.”
1. The first three propositions of appellant are discussed together, and the defendant contends that the evidence is undisputed that a sufficient quantity of lights had been provided by the defendant to properly light the excavation, and, in fact, the court so charged the jury; that, if the lights were not burning at St. Joseph street at the time of the accident, they had been put out by the wind and rain; that the evidence is uncontradicted that the storm was of unusual severity, and of such a character as to prevent the possibility of keeping the lanterns lighted during its progress. The defendant further contends that the evidence in substance agrees that the accident occurred about 10 o’clock in the evening; that the evidence clearly shows that the wind and rain put out the lights that had been set to guard this very crossing, and that defendant could not keep the lights lighted, nor relight them, if they were out, while the storm raged; that there was a wind velocity at that time of 28 miles an hour; and that the real question is: How soon after the storm ceased was it practicable to set about repairing the damage it had done, and how soon after that did the defendant’s agents act?
We are not able to agree with defendant’s counsel that the court should have instructed the jury, as a matter of law, or undisputed testimony, that the storm was an unusual and extraordinary one. We think that a question of fact was presented by the testimony. Neither do we agree with the contention that a verdict should have been directed. We are of opinion, however, that the jury should have been instructed more explicitly than they were upon the subject. We think the rule applicable here is stated by Elliott on Roads and Streets (Bd Ed.), at section 1163, as follows:
“The duty of a public corporation does not demand of it that high degree of care which would be necessary to keep its roads and streets absolutely safe for passage at all times and hours, and therefore it is not ordinarily liable for injuries produced by defects caused by sudden and violent storms and extraordinary floods. In many cases an action may be successfully defended upon the ground that the injury resulted from an extraordinary flood, and in no case is a corporation liable for a defect, or an obstruction, in a highway produced by sudden, violent, and unforeseen storm, until it has had a reasonable time in which to remove the obstruction or remedy the defect.”
See cases cited by the author.
If the jury should find, as matter of fact, that the storm was an unusual and extraordinary one, and one which the defendant could not, in the exercise of ordinary care, reasonably expect, we think the question then should have been clearly put to the jury whether the defendant had had a reasonable time in which to restore the lights before the accident happened; and they should have been instructed that if it had not had a reasonable time in which to restore the lights, in case the storm was of such a nature, then there would be no liability. Whether it was such .a storm as it might reasonably expect and provide for at that season of the year was also a question for the jury. The idea is embraced in the charge of the court in Beattie v. City of Detroit, 137 Mich. 319, at page 324 (100 N. W. 574, at page 576), where the charge of the trial court was approved by this court:
“Did they do all that prudence and foresight would demand of them? In other words, if the rain and storms that might be expected, if you believe that they might be expected at that time of the year, would put that street out of repair and render it dangerous, then, gentlemen of the jury, in my opinion, negligence would be chargeable against the city; but if you find that a storm of unusual severity, or a storm that might not be expected under ordinary circumstances and conditions at that time of the year, came up, then it is something human foresight cannot see or prevent, and that would be an extraordinary visitation of the elements, and the city * * * would not be, in such a case, chargeable with negligence.”
And the rule of reasonable time in which to remedy the defect would apply.
We have quoted extensively from the charge of the court, and most of it cannot be justly criticised, but we fear the jury failed to understand from the charge that a reasonable time in which to restore the lights, in any event, should be given to the defendant, before there would be liability in case the storm was an unusual and extraordinary one which put out the lights. This question of reasonable time in which to make repairs in cases of severe storms has been before this court in numerous cases, including cases against railroads for destruction of stock, where fences have been destroyed by violent storms. Robinson v. Railway Co., 32 Mich. 322; Stephenson v. Railway Co., 34 Mich. 323. The question of reasonable diligence is involved in all that line of cases. That the crossing was a place that required lighting, in the first instance, is not denied.
2. We are constrained to hold that the court erred in admitting the evidence of the physicians, above quoted. We have examined the testimony with great care; and while there is some confusion, in the colloquy between court and counsel, which leaves it somewhat in doubt as to what was intended by the rulings, yet we think it does sufficiently appear that the court permitted, and the jury understood that the court permitted, the evidence as to the flinching of the plaintiff to stand in the case. In the testimony of Dr. Sander-son the following appears:
“Q. Did she flinch?
“Mr. Fitzpatrick: I move to strike out the answer as incompetent and self-serving, that she flinched. I move it be stricken out — that she drew away her foot —as self-serving and incompetent.
“The Court: Let it stand. Note an exception.”
This question had substantially been answered in the affirmative, and we gather from the ruling that it was permitted to stand. This subject has been so often ruled upon by this court that about all that is necessary to do is to refer to the following authorities : Grand Rapids, etc., R. Co. v. Huntley, 38 Mich. 537 (31 Am. Rep. 321); Comstock v. Georgetown Township, 137 Mich. 541 (100 N. W. 788); O’Dea v. Railroad Co., 142 Mich. 265 (105 N. W. 746); Marshall v. Railroad Co., 171 Mich. 180 (137 N. W. 89).
As this court said in Comstock v. Georgetown Township, above cited:
“It hardly needs an argument to show that flinching is an expression, if not an exclamation. Like an exclamation, it may be involuntary or it may be voluntary; and in either case it is in the nature of, or has the effect of, a declaration, and, when taken to indicate suffering, becomes hearsay, if proven by another, and therefore subject to the principle discussed.”
Under the circumstances in which the manifestations testified to occurred, we think it was reversible error to receive the testimony.
For the errors pointed out, the judgment of the court below is reversed, and a new trial granted.
Brooke, C. J., and McAlvay, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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Kuhn, J.
This is an action for seduction, in which it is claimed that plaintiff’s decedent was seduced by the defendant under a promise of marriage. The trial resulted in a verdict and judgment for plaintiff. Plaintiff’s decedent died after a writ of error was issued in this cause, and the plaintiff was duly appointed special administratrix of her estate to prosecute this action.
Plaintiff’s decedent was a Polish girl, who came to this country from Russian Poland in October, 1911. She met the defendant soon after arriving here, at which time she was 19 years of age and he 25. It was her claim that, after the defendant obtained her confidence, he committed two different and distinct acts of seduction, to wit, on Saturday night, December 21, 1912, and on Sunday afternoon, December 29, 1912, on both of which occasions defendant promised to marry her, and that she consented to the act relying on the promises made in each instance. These claims were denied by the defendant.
The first error relied upon and argued by appellant in his brief relates to the examination of the witness Valeria Duba, the wife of plaintiff’s decedent’s half-brother, who was asked, “Just what was their attitude toward each other, as evidenced by their actions?-” and answered, “They used to treat each other pretty nice.” It is contended that the motion to strike out this answer should have been granted, for the reason that it stated a mere conclusion. The only justification for allowing the answer is found in an exception to the opinion rule of evidence which allows a witness to give his opinion or conclusion where it would be impossible to state the minor details going to make up his answer so that the jury could understand. It is sometimes difficult to determine exactly where the line should be drawn between the rule excluding opinion evidence and the exception referred to. And while it would seem that the witness, in the answer to the question here propounded, might have detailed more particularly what she actually saw that led up to the conclusion she arrived at, as stated in her answer, nevertheless we do not think it was prejudicial error to allow the answer to stand, as the trial court, who heard and saw the witness, was better qualified to determine whether under all the circumstances the witness should have been allowed to answer as she did. With reference to this rule, Jones on Evidence, vol. 2, § 359, states the following:
“But there are many cases so near the line between the rule and its exception that an appellate court should not be swift to reverse the rulings of the court below unless it is reasonably clear that a plain error of law has been committed. There is a wide difference in the ability of witnesses to describe what they have seen, and to narrate what they have heard. One witness may be able to make so graphic a word picture of the scene he has witnessed that those who hear it are in as good a situation to deduce a correct conclusion as he is; while another, who has observed the same incidents, may be utterly incapable of describing them, and can do nothing but state the impression or conclusion he drew from them. The trial court sees and hears each witness, and in doubtful cases is far better qualified than the court of appeals to determine whether a witness should be confined to the facts, or should be allowed to state his conclusions.”
Appellant’s fourth and fifth assignments of error relate to the following questions and answers propounded to the witness Amelia Zalewski, who was the mother of a child for whom the defendant had been named godfather, according to the custom of the Polish Catholic church. Witness was asked, “Do you know of Tony making any presents to the child because of his appointment?” The record discloses that notwithstanding the court sustained an objection as to the immateriality of the question, it was answered as follows: “I know of Tony making presents to the child.” The answer was allowed to stand, and was not stricken from the record, so there cannot be any merit to this assignment of error.
Another assignment of error relates to the question asked of the same witness, “Was there any particular time of the year when he did that?” and the answer, “No, just on a Christmas,” which answer, on motion of counsel, was stricken on the ground that it was too general, and also because “it assumes it was the custom, or something of that kind, which would be immaterial.” It is appellant’s claim that he was at an en tirely different place at the time of the alleged seduction, and that it was relevant and competent to show the custom among the Polish Catholic people of making such presents at Christmas time, as corroborative evidence of his claim that he was at the home of the witness on the evening of December 21st, bringing a present to his godchild.
With reference to the general principle concerning the proving of a habit or custom, Mr. Wigmore, in his work on Evidence (vol. 1, § 92), says:
“Of the probative value of a person’s habit or custom, as showing the doing on a specific occasion of the act which is the subject of the habit or custom, there can be no doubt. Every day’s experience and reasoning make it clear enough.” (Citing cases.) “There is, however, much room for difference of opinion in concrete cases, owing chiefly to the indefiniteness of the notion of habit or custom. If we conceive it as involving an invariable regularity of action, there can be no doubt that this fixed sequence of acts tends strongly to show the occurrence of a given instance. But in the ordinary affairs of life a habit or custom seldom has such an invariable regularity. Hence it is easy to see why in a given instance something that may be loosely called habit or custom should be rejected, because it may not in fact have sufficient regularity to make it probable that it would be carried out in every instance or in most instances. Whether or not such sufficient regularity exists must depend largely on the circumstances of each case.”
So, in the instant case, we are of the opinion that the answer to the question was properly excluded, for the reason that it is too indefinite and uncertain what custom it was sought to establish, whether it was a custom as to the actions of this particular individual defendant or as to the habit of the devotees of the Catholic religion. The answer to the question was that he did this “just on a Christmas.” The day to which the testimony is sought to be referred is December 21st, so it is also clear that he might have conformed to the custom and still not have been present at the home of the witness at the time that the alleged seduction took place; and therefore, even if such a custom were established, it would have no real probative force to corroborate the testimony of the witness or defendant’s own claim that he was at the home of the witness on the evening of December 21st.
Other assignments of error relate to the admissibility of evidence which the trial court excluded, by which the defendant sought to show that at the time of the alleged seduction he was engaged to marry another girl, and that he appeared in public frequently with her, and that such engagement was known to his neighbors, friends, and acquaintances. The trial court excluded the testimony on the ground that it would not be competent unless such knowledge was brought home to the plaintiff’s decedent before or at the time of the act complained of, and that even then it would only be competent as bearing upon the good faith of the claim of plaintiff’s decedent that she relied upon the defendant’s promise of marriage in consenting to the act. We are of the opinion that the court was correct in its ruling, and that this testimony was entirely immaterial unless knowledge of the same was brought home to the plaintiff’s decedent, which the record does not disclose. Fisher v. Hood, 14 Mich. 189; Simons v. Busby, 119 Ind. 13 (21 N. E. 451).
The court, in charging the jury, said:
“And while it would not be good in a breach of promise case for a man to say to a woman, Tf we have sexual intercourse and you get into the family way I will marry you,’ in a seduction case that is good, that makes the case; the difference being that in a breach of promise case the promise must be a decent, respectable, legitimate promise of marriage, made by the one and accepted by the other to be made in good faith, that makes a breach of promise case. But in seduction, if a man says to a woman, ‘You give up to me and if you get pregnant I will marry you,’ and she relies upon that and gives up to him, then that makes a cause of action for seduction.”
Under the rule in this State there is no question that this is an incorrect statement of the law, as this court has held that the promise of marriage in a seduction case must be absolute, and not conditional. As was said in People v. Smith, 132 Mich. 58 (92 N. W. 776):
“Such a promise (a conditional one) 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. * * * The commission of the offense cannot depend upon the happening of a subsequent event.”
See, also, People v. Carlos, 183 Mich. 269 (149 N. W. 1006).
However, there was no such issue in this case, and our attention has not been challenged to any testimony in the record, nor have we been able to find any, to show that there was a conditional promise of marriage made to the plaintiff’s decedent. She testified with reference to defendant’s promises, as follows:
“He was always kissing me, and said we would always live together and we would get married and I should not be afraid. I believed what he said. I loved him, and he always told me that he loved me. * * * He said we would both get married, right after Easter, I can’t say what year. He said we would both get married and everything would be good with us. * * * On December 21, 1912, Tony promised to marry me, when he was talking me up to that. On December 29th he promised to marry me before and after we had intercourse. I believed him. That was the reason I did what we did.”
As it conclusively appears that the portion of the charge complained of had no application to the facts in issue in this case, it must be treated as surplusage, and it cannot be said to have been prejudicial error.
We have examined the assignments of error with reference to improper argument of counsel, but are not impressed that anything that was said prejudiced the rights of the defendant or affected the result. Houser v. Carmody, 173 Mich. 121, 135 (139 N. W. 9); City of Kalamazoo v. Paper Co., 182 Mich. 476 (148 N. W. 743).
All other assignments of error having been examined and no prejudicial error being found in the record, the judgment is affirmed.
Brooke, C. J., and McAlvay, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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Bird, J.
Plaintiff’s intestate made an oral agreement with defendant to become superintendent and manager of its Holly plant, from the 1st day of February, 1910, for a term of not less than three years, at an annual salary of $5,000, to be paid in monthly installments. He worked under this oral agreement until the middle of May, 1912, and received his pay therefor to May 1, 1912. Soon after July 1, 1912, he commenced this suit and recovered his monthly salary for the months of May and June. On writ of error to this court, the case was reversed for the reason that the plaintiff declared and relied upon an express contract, and therefore could not recover on an implied one. Inasmuch as his recovery for the month of June was on an implied contract, the verdict was set aside. 175 Mich. 371 (141 N. W. 563). Upon the return of the case to the trial court, the record was amended by substituting the administrator for the intestate as plaintiff, and by adding the following paragraph to the declaration:
“And the plaintiff expressly avers that heretofore, to wit, on the 1st day of February, 1912, the said defendant agreed to employ the plaintiff for the whole of year ending February 1, 1913, at the annual salary of $5,000, payable in monthly installments, and the plaintiff agreed to serve the defendant for the whole of said year, to wit, at Holly, in said county of Oakland.”
A retrial was then had, and the same testimony that was given upon the first trial was introduced and read in evidence. Plaintiff’s counsel then insisted that, by reason of the amendment, he had the right to recover on an implied contract for services for the month of June. It was conceded by defendant’s counsel that the plaintiff was entitled to recover services for the month of May, the services having been rendered. The sole evidence relied upon to support the implied contract was the void contract, and the in ference to be drawn from the fact that defendant permitted plaintiff to enter upon a third year and paid him for the months of February, March, and April. The trial court, being of the impression that no different case was made from the first one, directed a verdict for the plaintiff for one month’s salary for the month of May.
Passing over the question of the propriety of the amendment, we are of the opinion that there was no competent proof to sustain the case on the theory of implied contract. If one makes a contract for services which is void under the statute, he can recover at the contract price for the services actually rendered. Fuller v. Rice, 52 Mich. 435 (18 N. W. 204); Smith v. Manufacturing Co., 175 Mich. 371 (141 N. W. 563). Or, if he has rendered services in reliance upon a void contract, he may recover the value of the services actually rendered, under the common counts. Fuller v. Rice, supra; Moore v. Nason, 48 Mich. 300 (12 N. W. 162). But we know of no rule of law which would permit an implied contract to pay for services which have not. been actually rendered to be built up out of a void contract.
We think the view taken by the trial court was the proper one, and the judgment will be affirmed.
Brooke, C. J., and McAlvay, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred. | [
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STONE, J.
An information against the respondent was filed in the recorder’s court of the city of Detroit under the provisions of section 11591, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 14646), the charge being in the following language:
“That Ebenezer Day, late of the city of Detroit in said county, heretofore, to wit, on the 9th day of January, A. D. 1912, at the city of Detroit, in the county aforesaid, being then and there an agent and clerk of Edwin Becker, not being then and there an apprentice, nor other person under the age of 16 years, did, by virtue of his said employment, then and there, and whilst he was agent and clerk as aforesaid, receive and take into his possession certain money, to a large amount, to the amount of five hundred and forty ($540.00) dollars, in lawful money of the United States of America, of the value of five hundred and forty ($540.00) dollars, of the property of the said Edwin Becker, and which said money came into the possession of said Ebenezer Day by virtue of said employment, and the said money then and there fraudulently and feloniously did embezzle and convert to his own use, without the consent of the said Edwin Becker; so the said Ebenezer Day, in manner and form aforesaid, the said money, the property of the said Edwin Becker, his employer, from the said Edwin Becker, feloniously did steal and carry away, contrary to the form of the statute in such case made and provided, and against,” etc.
The plea was not guilty.
Upon the trial of the case the following facts appeared to be undisputed: That prior to the time of the alleged embezzlement the respondent had been appointed, and had qualified, and was acting, as the executor of the last will and testament of one Anna M. Anscomb, deceased; that while acting as such executor said respondent had received from said Edwin Becker a sum of money as part payment for certain real estate which had been sold to said Becker by Mrs. Anscomb in her lifetime; that the only relation which the respondent ever sustained to the said Becker in the matter, or in the transaction, was that of executor as aforesaid; that as such executor he received the money in question; and that there was no evidence that respondent was the agent or clerk of the said Edwin Becker in said transaction, or dealings, or at any time, or that he had ever been in his employ.
At the close of all the testimony, respondent’s counsel made a motion for a directed verdict in respondent’s favor, and for his discharge, for the reasons that there was no evidence that respondent had in any way acted as the agent or clerk of said Becker, or been in his employ so as to bring the case within the general statute covering embezzlement by an agent or clerk; and that, if there was any case against the respondent under the evidence, it should have been brought and prosecuted under section 11610, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 14663), being
“An act to define and punish the offense of embezzlement by general and special administrators, executors or guardians.”
The motion was denied, and exception duly taken.
Respondent’s counsel also requested the court to charge the jury that under the evidence in the case the respondent was entitled to a verdict of not guilty of the charge, which request was refused. The case was submitted to the jury, and in the course of the .charge the following occurred:
“The Court: Is there anything further you want to have charged, Mr. Galloway?
“Mr. Galloway: All I have to say is this: You stated to the jury that they must find he was the agent. The converse of that would be that, if he was not the agent, what would be his position? He says himself he was not such, and Becker says he was not.
“The Court: The people charge the respondent, gentlemen of the jury, with the receiving of five hundred and forty dollars belonging to Mr._ Becker, which he misappropriated; that at the time this money came into his hands he conceived the felonious intent of converting it to his own use. That is the theory of the people, and that is what is alleged in the information. Now you are to determine the truth or falsity of that charge from all the evidence under the instructions I have given you.”
The trial resulted in a verdict of guilty, and the case is here upon exceptions before sentence.
The eighth assignment of error is to the effect that the court erred in not granting respondent’s motion, made at the conclusion of the trial, for his discharge, under the evidence as therein given. The thirteenth assignment is that the court erred in not directing a verdict in the case as requested by the respondent. The fourteenth assignment of error is that the court erred in using the language in the charge above quoted after its attention was called to the material question of agency, by respondent’s counsel. We are of the opinion that the respondent was prosecuted and convicted under the wrong statute, and that the proceeding amounted to a mistrial. There was no evidence that the respondent was the agent or clerk of the said Becker, or that he was ever in his employ, and the jury should have been so instructed. If the respondent was guilty of any offense, he should have been prosecuted under section 11610, 3 Comp. Laws. People v. Gaige, 23 Mich. 93; People v. Chappell, 27 Mich. 486; People v. Peterson, 166 Mich. 10 (131 N. W. 153).
For the errors indicated, the conviction is reversed and set aside, and the respondent discharged.
Brooke, C. J., and McAlvay, Kuhn, Ostrander, Bird, and Steere, JJ., concurred. Moore, J., did not sit. | [
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McAlvay, J.
This suit was brought by plaintiff against defendant in assumpsit to recover damages for a breach of an alleged contract of sale of.ten car loads of flour. Plaintiff recovered a verdict and judgment, and defendant brings the case to this court by writ of error for review.
Most of the facts in the case are not disputed. These parties had been in business and dealt with each other in flour for a great many years. Plaintiff is a Michigan corporation engaged in the manufacture and sale of flour and feed at Flushing, Mich. Its secretary, treasurer, and general manager is R. O. Hart. It was organized from a copartnership, and the same business had been conducted by Mr. Hart and by his father for a great many years in the same mill now occupied by plaintiff. Defendant A. B. McCrillis & Son, Incorporated, is a Rhode Island corporation incorporated in March, 1908, from a copartnership known as A. B. McCrillis & Son, doing business in Providence, R. I. It was incorporated with a capital stock of $200,000, by A. B. McCrillis, A. M. Mc-Crillis, and Howard B. Briggs, as the incorporators; the principal incorporators being the members of the former copartnership. At the same time a branch of this copartnership then doipg business in Boston, Mass., was incorporated under the laws of Massachusetts with a capital stock of $5,000, A. B. Mc-Crillis, A. M. McCrillis, and William A. Rogers as the incorporators; the principal incorporators being the same as the members of the Providence copartnership and as the incorporators of the Rhode Island corporation. Each of these corporations had a third incorporator holding but one share of stock merely for the purpose of making the required number of stockholders. Arthur M. McCrillis was secretary and treasurer of the Rhode Island corporation, and also treasurer of the Massachusetts corporation. His home was in Providence, R. I., and, as such officer of both of these corporations, he transacted the bulk of all their business from the Providence office, where he kept a duplicate set of books of the Massachusetts corporation. He testified that the Rhode Island corporation from time to time loaned money to the Massachusetts corporation with which to conduct its business, which loans, with interest, were charged against it in a running account.
“The Massachusetts corporation charged its goods to its customers, and, as it collected for the same, it deposited the. collections to the credit of the Massachusetts corporation in Boston banks, and then drew checks in round sums which were handed over to the Rhode Island corporation and passed to the credit of the running account against A. B. McCrillis & Son Company.”
Collections of both corporations were made from the Providence office through a collection department established for that purpose. Before the incorporation of either the plaintiff, defendant, or the Massachusetts corporation, when these parties were co-partnerships, they had dealt together in purchases and sales of flour for from 15 to 20 years, and always through the Providence office, under the firm name of A. B. McCrillis & Son.
After these firms were incorporated the Rhode Island Company did not deal so largely in flour, but added real estate and stocks and bonds to its busi ness. The Massachusetts company dealt exclusively in flour and feed. After the incorporation of the Rhode Island and Massachusetts companies in March, 1908, these parties continued their business dealings, and these two Eastern corporations from time to time each placed their orders for flour with the plaintiff company as they desired. The custom was to book these orders as soon as received and await shipping orders from Boston or Providence, as the case might be. The instructions to plaintiff were always to send invoices and drafts to Providence and all payments to plaintiff for sales, whether ordered from Boston or Providence, were made upon drafts drawn upon the Rhode Island corporation and paid by it, which drafts were invariably attached to the bill of lading of the shipment. As we understand the record, no payment was ever made in any other way.
It is the claim of the plaintiff that the Boston corporation was the agent of the defendant. Following is the letter head used by the Boston concern:
“A. B. McCrillis & Son Co.,
“Flour.
“Sales Agent for A. B. McCrillis & Son, Inc., Providence, R. I.
“329 Board of Trade Bldg., Boston, Mass.”
The letter head of the Providence, R. I., corporation reads:
“A. B. McCrillis & Son, Inc.
“Office, 11 Exchange Place.
“Warehouse, 348 Canal Street.
“Boston Office, 329 Board of Trade Bldg.
“Providence, R. I., June 10, 1909.”
Also:
“A. B. McCrillis & Son, Inc.
“Boston Sales Agent A. B. McCrillis & Son Co.,
329 Board of Trade Bldg.
“11 Exchange Place, Providence, R. I.”
Frequently ^letters were written by A. B. McCrillis & Son, Incorporated, on letter heads of the Boston office, and in letters from that company the Massachusetts company was referred to as “our Boston office.” In the dealings between plaintiff and defendant, whenever there were any claims against plaintiff for excess or demurrage on flour shipped under orders from the Boston office, statements for the same would be rendered to plaintiff by A. B. McCrillis & Son, Incorporated, of Providence, R. I., and checks drawn by plaintiff to either one of the companies in payment of these bills would be sent to Providence and indorsed, and the bills receipted by the defendant company.
The manner of doing business between these parties, of which we have given an outline, is not disputed, and appears from the following excerpt taken from the testimony of Mr. R. O. Hart, plaintiff’s general manager:
“So far as I can recollect, we had never sold the Boston house flour for which the Providence house did not pay. In all our dealings with the Boston house we made all drafts on the Providence house. If there were any rebates or claims against us they came from Providence. We paid Providence these rebates and claims. We understood that the Providence house looked after the financial end of the Boston house. We had always done our collecting at Providence; did not know anything to the contrary. These 105 shipping instructions state that they came from the Boston house. * * * In every instance we were instructed to draw on Providence house. These shipping instructions do not include all the flour that we shipped that year. I have run over it to ascertain thé date and how much flour we shipped them from orders received prior to the 8th day of March, 1910, for the year — somewhere in the neighborhood of 14,000 or 15,000 barrels. In each of these instances the draft was drawn on the Providence house, and paid by the Providence house. The Providence house never questioned the right to draw drafts on them, and we were never criticised for it; no question was ever raised in reference to it. That had been our uniform practice during all our business career with the Boston house.”
The dispute in this case arises out of an order or contract made March 8, 1910, between plaintiff and A. B. McCrillis & Son Company, of Boston, for ten car loads, being 2,050 barrels, of flour, at $5.70 per barrel. None of this order was ever delivered, because the party making such contract refused to order shipment of such flour, although often requested so to do. As stated by plaintiff:
“This suit was brought against the Providence house for breach of this contract on the theory that the credit was extended to defendant by the sale to its agent, A. B. McCrillis & Son Company, for and on its behalf.”
It is the contention of defendant and appellant that the contract of March 8, 1910, having been made with the Massachusetts corporation, and not with the defendant corporation, this suit should have been instituted against the Massachusetts corporation, no agency, express or implied, having been established between the two corporations, and that the letter of February 28, 1910, was of such a character that no agency, express or implied, could be established, and that for these reasons the court should have directed a verdict in favor of defendant. This letter, upon which defendant relies, reads as follows:
“A. B. McCrillis & Son, Inc.,
“Flour.
“Boston Sales Agent A. B. McCrillis & Son Co.,
329 Board of Trade Bldg.
“11 Exchange Place, Providence, R. I.
“Feb. 28th, 1910.
“Hart Milling and Power Co., •
“Flushing, Michigan.
“Gentlemen:
“Your favor of February 26th is at hand, and the part of'the letter which strikes me most forcibly is your request that we furnish you directions for flour which you owe the Providence office.
“Permit me to say once more, and I hope that this time I can get it sufficiently emphatic so that it will be understood, the Providence office has no flour bought of you,.
“I cannot understand your persistence in desiring to deliver this flour to Providence, when it belongs to Boston. I don’t know whether you made the mistake in booking the flour for Providence, or some one of us made a mistake and requested you to. It is absolutely immaterial. There is a mistake. The Providence office does not own that flour; never has owned it; never will own it; no matter how many times you ask us for directions on it. You have been written so many times to this effect that we are putting it as strongly as we know how. We don’t want you to take offense at the strong way we put it. We have no hard feelings in the matter at all. We simply want it straightened out so that you will ship the flour on Boston office orders as should be done on cars which went forward some time ago.
“We note your suggestions that you carry everything in the name of the Boston office in the future. We cannot have this done. Our Providence office, and our Boston office, or as they should properly be called, the Rhode Island corporation and the Massachusetts corporation, are two separate and distinct firms, and we want you to carry the purchases of these two corporations separately. It is true that it so happens that the writer is treasurer of both corporations, and it is not improbable that at some time one corporation may sell to the other flour which they have purchased of you or other mills, in which event a letter signed by an officer of the corporation will be sufficient authority for you to transfer.
“Do not let what we have said above relative to the separate nature of the two corporations, confuse you on the drawing of drafts. All drafts should be drawn as formerly on A. B. McCrillis & Son, Incorporated.
“We sincerely regret that confusion has arisen over these purchases and shipments, and trust that you will get everything straightened out in a very few days. It has been a great deal of inconvenience to us and has upset our accounts considerably.
“With kind personal regards of the writer, we remain, Yours truly,
“Arthur M. McCrillis,
“Treas.”
As has already been indicated, the court refused to direct a verdict for defendant. The court also, after judgment rendered upon the verdict of the jury, denied a motion for a new trial. Upon both of these matters exceptions were taken and errors assigned. There are other errors also assigned which relate to the admission of evidence in the case.
The principal question in this case is raised by the motion for a directed verdict on the part of defendant on the ground that the sale of the ten cars of flour was made to the Massachusetts corporation, and there was no evidence in the record tending to show any agency existing between that corporation and the defendant in this case. Before discussing that contention something is required to be said concerning the letter of February 28, 1910, above quoted, which is the main reliance of the defendant in support of this motion. This letter was written to plaintiff by defendant, and, as appears on its face, was called out by a letter from plaintiff to defendant February 26, 1910, the material parts of which are, as follows:
“Flushing, Mich., Feb. 26, 1910.
“A. B. McCrillis & Son,
“Providence, R. I.
“Gentlemen:
“We have had considerable correspondence of late with reference to some flour, as we have had one lot booked up to the Providence house. We would like to ask if in 'the future it wouldn’t be a good plan to carry everything in the name of the Boston office, whether bought from Providence or not, and receive shipping directions from Boston office for it. We find you are badly tangled up on some of these sales and we hope to straighten them out for you in a day or two. We have written Boston today telling them where they were tangled up.”
We also quote such part of the letter written by plaintiff to defendant in answer to its letter of February 28th as refers to the purchase of flour then under consideration, relative to the charges for which the accounts of defendant had become “tangled:”
“Flushing, Mich., March 2, 1910.
“A. B. McCrillis & Son,
“Providence, R. I.
“Gentlemen:
“Your favor of the 28th at hand. We note what you say in reference to there being two distinct offices and that the sales will be carried out along that line.
“We want to call your attention to your remark. made here in the office, and this tangle is based practically on that remark. You said we must be very particular and keep the Boston and Providence offices separate and the 2,000 bbls. we booked for Providence offices and you now claim was for Boston has caused all the tangle.”
Both of these letters from the plaintiff were written to the defendant in the name of A. B. McCrillis & Son, Providence, R. I. They were received, as they were intended to be, as letters dealing with the Rhode Island corporation, and answered by it as such. All of these letters speak of the Boston and Providence offices.
The record shows without dispute that for years the Boston office was a branch of the Providence office, and also shows that after the incorporation of both branches their dealings were carried on in the same manner. This appears from the letters written by defendant to plaintiff in regard to its business wherein the Boston corporation was treated as “our Boston office,” and defendant’s stationery was printed to that effect, and the stationery of the two concerns was used by defendant company interchangeably when treating of the business of either office. The record also shows without dispute that plaintiff was always paid by the defendant company after the incorporation of both offices the same as before for all flour and feed sold by it to the Boston and Providence concerns, and that it had never been paid for sales made to the Boston office by the Massachusetts concern. The record further shows that these payments were made by drafts on defendant at its express order and direction. It appears that after the incorporation not only were the books of the Boston concern kept at the Providence office, but also that it was financed by the Rhode Island corporation.
It must not be lost sight of in this case that the letter of February 28, 1910, was not called out by the sale of flour out of which this litigation arises, but because of certain large purchases, which had been made by these parties of plaintiff, as appears from the excerpts of letters which called out and which answered this letter of February 28th; plaintiff contending that the trouble did not arise on account of its mistakes. The large amount involved was paid to plaintiff by defendant the same as all other orders for flour had been paid since their dealings with each other commenced. The Rhode Island office was in-, corporated for $200,000; the Boston office for $5,000. The record shows that plaintiff and its predecessors had always extended credit to the Rhode Island corporation, and always understood that it took care of the finances of both concerns, and during the entire term of the business relations between them orders had been given for flour and feed to plaintiff from both offices, although for the last two years of their dealings the greater number of orders, which at times were for amounts of more than $10,000, came from the Boston office.
The foregoing was the situation at the time of the writing the letter of February 28, 1910, and indicates the relations of the parties to this suit to each other. As indicative of the spirit which actuated and the intent and purpose for which this letter was written, we quote the last two paragraphs:
“Do not let what I have said above relative to the separate nature of the two corporations confuse you on the drawing of drafts. All drafts should be drawn as formerly on A. B. McCrillis & Son, Incorporated.
“We sincerely regret that confusion has arisen over these purchases and shipments, and trust you will get everything straightened out in a very few days. It has been a great deal of inconvenience to us and has upset our accounts considerably.”
There is ho material dispute between the parties as to the facts involved in this case. It is admitted that this contract to purchase 2,050 barrels of flour at $5.70 per barrel, amounting to $11,685, was made and entered into on March 8, 1910, that the purchaser refused and neglected to carry out said contract; and it is not disputed, but that the plaintiff by reason of such default has suffered the damages claimed.
The contention of defendant is, and this is the sole question in the case, that it neither directly -nor indirectly was a party to such contract, but that A. B. McCrillis & Son Company, the Massachusetts corporation, was the party which made this purchase from the plaintiff, and it is insisted that, as a matter of law, the court should have held that no agency, express or implied, had been established by plaintiff, and a verdict should have been directed in its favor.
The trial court denied the motion of defendant for an instructed verdict, and submitted the question of agency to the jury to be determined as a question of fact, holding that there was, in his opinion, evidence in the case tending to establish the existence of a disputed agency. From our examination of the record our conclusion is that the trial court was correct; that there was such evidence in the case.
The general proposition applicable to cases of disputed agency is laid down in Cyc. as follows:
“When any evidence is adduced tending to prove the existence of a disputed agency, its existence or nonexistence is, as a general rule, a question of fact for the jury, aided by proper instructions from the court, even though the evidence be not full and satisfactory ; and it is error for the court to take the question from the jury by directing a verdict, by instruction, by nonsuit, or by sustaining a demurrer to the evidence.” 31 Cyc. pp. 1672-1674, and cases cited.
In his charge the learned trial judge submitted the question of both an express and implied agency to the jury at length with great care. We are satisfied that in the record there is evidence to support the finding of the jury. It is not necessary to discuss other questions.
The judgment of the circuit court is affirmed.
Brooke, C. J., and Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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] |
North, C. J.
The factual background and controversies presented by the instant case are stated by the trial judge as follows:
“On August 15, 1946, an order was entered in the above cause appointing a receiver for the Rite-Way Tool & Manufacturing Company. In 1948 and 1949 the city of Detroit levied personal property taxes on the assets of the company which, with accumulated interest now amount to $3,612.15. At the time of the order appointing the receiver, nearly all of .the physical assets of the company were subject to 2 chattel mortgages which were in default. On November 14,1949, the receiver petitioned the court for authority to sell the machinery covered by the chattel mortgages and to apply the proceeds of the sale to the mortgage debt. With the consent of the mortgagees an order was entered granting the petition and the gradual liquidation of the machinery has been progressing since the date of the order (November 14, 1949),"with the proceeds being applied to the chattel, mortgage indebtedness. (However the receiver retained possession of sufficient funds for payment of taxes.) The question now before the court is whether or not the personal property taxes for 1948 and 1949 take precedence over the chattel mortgages which were executed and recorded 2 or 3 years before the taxes became due.”
The prayer of the voluntary petition was for a receiver to continue the business. It was so carried on for more than 3 years when the court finally authorized the receiver to proceed to liquidate the assets of the receivership. Subsequent to a court order authorizing the receiver to sell property of .the receivership, incident to such liquidation, on July 12, 1951, the trial judge in the pending receivership proceedings entered an order of distribution to be followed by the receiver, which in part read:
“The order of distribution of the proceeds derived from said sales of the assets covered by said chattel mortgages should be as follows:
“1st. Satisfaction of the secured debts of the 2 chattel mortgages.
“Then any surplus in the hands of the receiver, from sales of said mortgaged machinery, after satisfaction of said mortgages as aforesaid, together with any other cash proceeds in the hands of said receiver, should, in the order of distribution, be disbursed as follows:
“2d. Costs and disbursements of the receiver.
“3d. Fees of the receiver and his attorney.
“4th. Taxes.
“5th. General creditors.
“6th. Balance, if any, to the partners.”
Among other powers conferred upon the receiver incident to his appointment were the following: “That said receiver be and hereby is authorized * * * to conduct the business of said copartnership so as to keep the manufacture of work under order as nearly as possible in accordance with the ordinary conduct of the business of the copartner ship. * * * It is further ordered that said receiver be, and he is hereby authorized in his discretion from time to time, out of the funds coming into his hands, to pay the expense of executing his said trust and to pay all taxes and assessments upon said property and business.” The city’s amended petition, filed July 7, 1950, that the receiver show cause why he should not pay the taxes here involved and interest accrued thereon, sets forth, and it does not appear in the record to be denied, “That the city of Detroit, a municipal corporation of the State of Michigan, levied taxes upon the personal property of said LeRoy Thomas and Sidney Beach, a copartnership doing business as Rite-Way Tool & Manufacturing Company, which is [and was] under control of and in the possession of said receiver, for the year 1948 * * * and for the year 1949.” Prom this it appears that the taxes in suit were assessed pending the receivership and during the period that the business was being carried on by the receiver, and were a charge against the receivership and the receiver as such.
Admittedly the receivership estate is insolvent and payment in full will not be possible of all such claims as have priority over general creditors. Prom the circuit court’s order of distribution the city of Detroit and its treasurer have appealed. Appellants contend that the unpaid taxes, which in this case were assessed as charges against the receivership, were “expense of administration,” and should have priority of payment by the receiver over the unpaid chattel mortgage liens. In this connection it may be noted that the order appointing the receiver authorized him to pay taxes.
Section 1, chapter 4, title 6 of the charter of the city of Detroit, provides:
“All city taxes shall be due aud payable on the fifteenth day of July in each year, and on that date shall become a lien on the property taxed.”
And section 26 of the same chapter and title, in part, provides:
“All city taxes upon personal property shall become on said fifteenth day of July a lien thereon and so remain until paid, and no transfer of the personal property assessed shall operate to divest or destroy such lien.”
CL 1948, § 211.40 (Stat Aim 1950 Rev § 7.81), of the general property tax act, provides:
“The taxes thus assessed shall become at once a debt due to the township, city, village and county from the persons to whom they are assessed. * * * And all personal taxes hereafter levied or assessed shall also be a first lien, prior, superior and paramount, on all personal property of such persons so assessed from and after the first day of December in each year for State, county, village or township taxes or upon such day as may be heretofore or hereafter provided by charter of a city or village, and so remain until paid, which said tax liens shall take precedence over all other claims, encumbrances and liens upon said personal property whatsoever, whether created by chattel mortgage, title retaining contract * * * and whether such liens, claims and encumbrances created by chattel mortgage, title retaining contract * * * become effective prior to the effective date of this act or subsequent thereto, and no transfer of personal property assessed for taxes thereon shall operate to divest or destroy such lien, except where such personal property is actually sold in the regular course of retail trade.”
CL 1948, § 211.107 (Stat Ann 1950 Rev § 7.161), being included in the general tax law of this State, provides: '
“This act shall be applicable to. all cities and villages where not inconsistent with their respective charters.”
In view of the noted statutory and charter provisions, it seems too clear for argument that in the instant ease the tax liens are prior and superior to the rights of the chattel mortgagees. In consequence, we deem it unnecessary to cite many judicial holdings to the same effect.
“Not only is it competent for the State to charge property with a lien for the taxes imposed thereon, but the legislature may, if it shall deem it proper or necessary to do so, make the lien a first claim on the property, with precedence of all other claims and liens whatsoever, whether created by judgment, mortgage, execution, or otherwise, and whether arising before or after the assessment of the tax. * * * This statutory priority generally extends to prior mortgage liens so as to subordinate such liens to tax liens. So the priority may be given to liens for a personal property tax.” 3 Cooley on Taxation (4th ed), § 1240.
Further, our consideration of this appeal brings the conclusion that in the instant case wherein the taxes involved were assessed after the inception of the receivership and while it was being conducted as a going business, and such taxes were assessed against the receivership as such, payment thereof was a duty of the receiver and such payment was a proper expense of administration of the receivership. Bailey v. Bailey, 262 Mich 215, 222; Michigan v. Michigan Trust Co., 286 US 334 (52 S Ct 512, 76 Led 1136).
In the Bailey Case a paragraph of the headnotes reads: “Payments by receiver of summer hotel property out of profits of operation for fire insurance, taxes, and satisfaction of title-retaining contracts on fixtures and equipment covered by mortgage on hotel property, held, properly given priority as expenses of preserving and protecting property;” and in the body of - the opinion we said: “Acts of a receiver in preserving and protecting property are discussed in 1 Clark on Receivers (2d ed), § 378. Payments for fire insurance and of taxes were properly so classed.”
And in the Michigan Trust Company Case the United States supreme court, in passing upon Michigan law, held (syllabus):
“The tax (i.e., a corporation privilege tax) should be paid by the receiver as it accrues, as part of the expense of administration; and where this was deferred until the receivership developed from a merely protective into a winding up process, the accumulated taxes must be paid in preference to -the claims of creditors.”
In justification of the determination of the trial court as to the proper order of distribution, both the circuit judge and appellee rely heavily, and almost solely, on In re Dissolution of Ever Krisp Food Products Co., 307 Mich 182. That case is not controlling of decision in the case at bar because there is a controlling factual difference in this respect: In the instant case the city taxes were assessed while the receivership was in progresses a going concern and against the receivership; whereas in the cited case the tax was not assessed against the receivership but instead against the owner of the property. Under such circumstances the receiver was not duty bound to collect from the property owner the assessed tax for the taxing authorities, or to pay the tax. But, in the instant case the obligation to pay the tax was that of the receiver as such; whereas in the Ever Krisp Case the legal obligation to pay the tax was that of the property owner. The assessed tax had not become a lien on the property when its possession was taken over by the receiver from the owner in the Ever Krisp Case. Hence, as stated in our opinion in that case: “The receiver did not take the property burdened with a city tax lien for the 1940 city taxes.” But on the contrary, in the instant case, as above noted, the taxes were assessed against the receivership. They became a lien on the taxed property which was assessed while in the receiver’s control; and it thereupon became his legal duty as receiver to pay these taxes for the protection of the property rights of the respective parties whom he represented, including the chattel mortgagees. Our opinion in the Ever Krisp Case does not hold that a tax, assessed against the personal property of a receivership engaged in carrying on its business, cannot become a lien on such property during the administration of the receivership estate.
We are not in accord with appellee’s assertion: “This question (now before this Court) is answered with finality in the Ever Krisp Case, as relied upon and quoted in the opinion of the lower court.” To so hold would be entirely inconsistent with the plain statement of Mr. Justice Boyles, who wrote the opinion for the Court in the Ever Krisp Case, as follows: “Under the statute law of this State, an ad valorem personal tax lien now takes precedence over any prior mortgage liens (section 40, general property tax law, as amended by PA 1934 [1st Ex Sess], No 38).”
We conclude that the order of distribution by the receiver entered in the circuit court should be modified and made to provide as follows:
(1) There being no controversy on this appeal as to priority of payment of the items given first priority, the receiver should first apply funds received from liquidation of the receivership assets (including the chattel mortgaged property) in payment of the costs of administration of the receivership, including taxes herein involved, and the fees of the receiver and his attorney as fixed by the court; and thereafter in the following order apply receivership funds in his hands in payment of (2) the chattel mortgages; (3) claims of general creditors; and (4) the balance of such funds, if any, to the partners.
An order in accordance with the above will be entered in this Court and the case remanded to the circuit court for further proceedings therein. Appellants may have taxable costs of this Court against the receivership.
Dethmers, Btjtzel, Carr, Btjshnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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North, C. J.
The defendant in this divorce case, Ira W. Cory, has appealed from an order of the circuit court denying his petition for an amendment to the decree of divorce which would award the custody of the 2 minor children of the parties to defendant; and also from an amendment to the order for alimony theretofore made granting plaintiff’s petition that defendant be required to pay plaintiff an additional sum of $970: The minor children are 2 sons, the older one having become 13 years of age in September, 1951, and the younger one 12 years of age in October, 1951.
The original interlocutory decree of divorce was granted June 17, 1948, to become final 6 months thereafter. The custody of the 2 sons was given to plaintiff, Mary D. Cory, until each arrived at the age of 18 years, or until the further order of the court, with the right of defendant to have either or both of said sons with him for 1 month during summer vacations, and the further right of visitation at other reasonable times. The decree provided defendant should pay plaintiff' $75 per month for the support and maintenance of each of these 2 minors. A property settlement was decreed in which the residence of the parties was awarded to plaintiff as her sole property, subject however to a mortgage encumbrance. Plaintiff was also decreed the ownership of certain other property, including the household furniture and equipment of the parties and certain cash items. Plaintiff was required to release to defendant by quitclaim any and all interest she might have in any real estate which the defendant owned, or in which he might have had an interest, in Philadelphia, Pennsylvania.
The parties have been before the trial court repeatedly since the original decree concerning matters affecting the care, custody and maintenance of the minor children. The mother appears to have lacked the ability to control the minor sons in such a manner as their custodian should exercise. In October, 1950, on petition of defendant, the trial court amended the decree as to the care, custody and control of the 2 minor sons. By such amendment the custody of the 2 boys was given to the friend of the court of Oakland county, subject to •rights of visitation, evidently by either of the parents. It was further ordered that these boys be placed in a boarding school, subject to the approval of the trial court, and that defendant “pay and discharge the board, room, tuition, clothing, medical expenses, et cetera, in connection with the education of said children and all expenses of transportation to and from such school for visits and vacation periods.” On November 1,1950, plaintiff filed a petition asking that the court approve her selection of the Howe Military School, at Howe, Indiana, as a suitable school for the boys to attend. On November 9, 1950, the defendant filed a like petition in which he asked the approval of the court of an arrangement ■alleged to have been made by defendant for the enrollment of said minors in the Colorado Military School, at Denver, Colorado, alleging that the registration fees for their entrance there had been paid. On November 25, 1950, the circuit judge caused an order to be entered approving the Howe Military School “as a suitable boarding school for the minor children of said parties,” and providing further that “the defendant is hereby required to make the necessary financial arrangements with said edricational institution for the enrollment of said minor children, their transportation and other expenses.”' The order further provided “that unless and until the defendant makes the financial arrangements for the education of said minor children in the above named educational institution, said minor, children shall be and remain with their mother, Mary D. Cory, and the obligation of said defendant to pay alimony shall continue.”
Notwithstanding financial arrangements for the sons attending the Howe Military School were not made by the defendant, plaintiff caused the 2 minors to enter the Howe school for the spring term of 1951; and it appears from the record that in addition to the regular monthly alimony paid to her at the rate of $75 per month for each of the minors, plaintiff paid from her own funds $970 to meet the expense of maintaining the sons in the Howe Military School. As the result of a petition filed by plaintiff, defendant was ordered to appear before the court on July 23, 1951, “then and there to show cause, if any he has, why he should not be committed for contempt of court in the disobedience of said decree.” Defendant made answer to plaintiff’s petition, and on July 26,1951, filed a cross-petition in which he asked that the decree of divorce be again amended so that “the custody of the minor children, Robert James Cory and William Davis Cory be awarded to this defendant, and that he be allowed to take them to his home in Fort Monroe, Virginia, forthwith.” As above noted, defendant’s petition for a modification of the decree as to the custody of the minor children was denied and in compliance with plaintiff’s petition defendant was ordered to pay to her $970 in monthly instalments of not less than $75 each. This appeal by defendant followed.
Our review of the record on this appeal brings the conclusion that there should be a modification of the provisions of the decree, as last amended, touching the custody of the minor sons of these parties. An applicable statutory provision provides as follows:
“That in case of the separation of husband and wife having minor children, the mother of said children shall be entitled to the care and custody of all such children under the age of 12 years, and the father of such children shall be entitled to the care and custody of all such children of the age of 12 years or over: * * * And provided further, That nothing in this act shall prevent any court of competent jurisdiction from making and enforcing any such order or orders as it may deem just and proper as to the care and custody of such minor children in the same manner and with like effect as it could if this act had not been passed.” CL 1948, § 722.541 (Stat Ann § 25.311).
"We are mindful, and have repeatedly held, that the above quoted statute does not qualify or restrict the inherent broad powers of a court of chancery to adjudicate the custody of children according to the varying elements for consideration in each case, and to make such disposition in each instance as will best subserve the welfare of the minor or minors before the court. See Davis v. Davis, 296 Mich 711. When the custody of minor children in a divorce case becomes a controverted issue between the parents, the welfare of such minor children is of first and paramount consideration. Sawyer v. Sawyer, 312 Mich 524; Foxall v. Foxall, 319 Mich 459.
In the instant case the 2 minor sons have arrived at an age where, under the circumstances of this case, they need the father’s care and control; and placing their care and custody in the father is preferable to placing their legal custody, as the amended decree now provides, in the friend of the court of Oakland county, while the actual custody is in some boarding school approved by the order of the trial court. The father has remarried and is maintaining a home, the suitability of which is not challenged. Defendant’s present wife, as a witness in the proceedings touching the custody of defendant’s 2 sons, testified: “I would like to have them.” It is our understanding that presently the 2 sons are attending the Pennington School, Pennington, New Jersey, and the attendant expense is borne by the father.
Under all the circumstances of this case, which are indicated only in part in the foregoing, we conclude that the portion of the decree governing the custody of the 2 minor sons should be amended to provide as follows:
Beginning at the conclusion of the present term of the Pennington School now attended by these 2 sons, Robert James Cory and William Davis Cory, the father shall become and be vested with their care and custody, until said children arrive at the age of 18 years, respectively, subject however to the right of the mother of these 2 minors to have the sons with her for 1 calendar month during each summer vacation, defendant to provide the expense of the minors’ transportation to and return from the mother, and suitable clothing and other personal needs for the minors during the visit to their mother; and the mother shall have the further right of reasonable visitation. Plaintiff shall have the right to elect whether the sons’ visit with her shall be during the month, of July or during the month of August, provided she shall by registered mail, return receipt requested, advise defendant herein at least 20 days in advance as to which of the above months the mother elects to have the sons. And further, plaintiff shall definitely advise defendant as to where the sons will be met and the exact time. In event of her failure to notify defendant as to whether plaintiff elects to have the sons’ visit in July or in August, the sons’ summer visit with their mother' shall be during the month of August of each year; provided the mother shall notify defendant in advance, in the same manner as above specified, of her desire as to where and when she will meet the sons.
Further, the decree of the lower court requiring, defendant to pay to plaintiff $970 in addition to the $150 per month which defendant has paid, will be vacated. This modification, we think, is justified because to require the payment of said sum of $970 would impose an undue hardship upon the defendant; and for the further reason that plaintiff incurred this additional expense of the sons attending the Howe Military School over the timely protests of defendant, and notwithstanding the alternative provision in the court’s order approving the boarding school “that unless and until the defendant makes the financial arrangements for the education of said minor children in the above named educational institution, said minor children shall be and remain with their mother, Mary D. Cory, and the obligation of said defendant to pay alimony shall continue.” As a matter of fact, defendant did continue to pay plaintiff $150 per month for the support of these 2 sons during the time they were attending the Howe Military School.
There is now pending in this Court an application for expenses and attorney fees for plaintiff’s present attorney. Disposition of this application must be made in the light of the fact that on 2 previous occasions attorneys who then represented plaintiff were paid under order of court an attorney fee of $100. Plaintiff’s present attorney appeared in this case comparatively recently and we think a proper disposition is to provide in the amended decree that within 60 days from the date of our decree defendant shall pay into court for plaintiff’s present attorney a fee of $100, which will make a total of $300 paid by defendant to plaintiff’s attorneys.
A decree may be taken in this Court in accordance with the foregoing, and providing further that this case is remanded to the trial court with full jurisdiction to hear and adjudicate any subsequent matters arising therein, including payment of the attorney’s fee herein provided. No costs.
Dethmers, Btjtzel, Carr, . Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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] |
Butzel, J.
Gordon R. Connor and Connor Lumber & Land Company, plaintiffs (herein referred to as Connor), filed petitions against D. Hale Brake, treasurer of the State of Michigan, and commission of conservation of the department of Conservation, defendants (herein referred to as Conservation),for a mandamus to order Conservation to pay certain judgments based on condemnation awards and interest in accordance with Connor’s computations. We issued orders to show cause and of reference to the circuit court of Gogebic county. The petitions are presented on 1 record and will be .discussed accordingly as.our decision on either petition will determine the questions raised in each of them. The underlying facts leading to the present proceedings are very fully set forth in.the record and opinions in Department of Conservation v. Connor, 316 Mich 565, to which reference will be made.
PA 1944 (1st Ex Sess), No 27, (CL 1948, § 299.101 et seq. [Stat Ann 1951 Rev § 13.790(21) et seg.]), provides for acquisition and development of recreational facilities in several defined areas and appropriates $5,000,000 for this purpose. The act expressly states that $l,000j000 of the appropriation is to be used for the acquisition by condemnation proceedings of the properties in Gogebic and Ontonagon counties in what is known as the Porcupine Park area, in which the properties of Connor were located. On April 18, 1944, condemnation proceedings were begun by Conservation in the circuit court for the county of Gogebic to condemn certain properties in the area. The jury found necessity and awarded the sum of $211,872.30 to the Connor Lumber & Land Company, and $4,774.10 to Gordon Con-nor, both of whom appealed from judgments on the awards rendered November 25, 1944. The appeals were not submitted to this Court until October 18, 1946, and the judgments were affirmed on January 7, 1947, with costs to Conservation.
Three days after the cases were begun in the circuit court, Conservation brought suit to enjoin Con-nor from removing any timber from the lands which Conservation sought to condemn, and a temporary injunction was issued as well as an order to show cause. Connor at first made no attempt to have the temporary injunction dissolved. It was stated, by Connor’s attorney at the hearing on the order to show cause that up to that time ■ Connor had not been damaged bnt it denied that the court had jurisdiction. Connor was not interested in the scenic beauty of the property but principally in the timber, while Conservation was interested in both, it being also desirous of preserving a large stand of virgin timber for its historical value by thus acquiring one of the few remaining large stands of such timber and exhibiting it to visitors to the area as one of the sources of a basic industry of northern Michigan. Connor took no further action to appeal from the order granting the temporary injunction and remained the sole title owner until divested by final judgment after failure to prevail on the appeal to this Court. In the present mandamus proceedings, Connor no longer denies that the court had jurisdiction but in its brief now concedes that the court' ■had jurisdiction to issue the injunction to preserve the status quo during the pendency of the condemnation proceeding’s. Conservation, on the other hand, could not take possession before the final disposition of the case in this Court. Until that time, Connor had possession but could not remove the uncut timber, the value of which was included in the awards and judgments.
The entire sum of $1,000,000 had been previously set aside to Conservation for the purpose of acquisition of lands in the Porcupine Park. On March 12, 1947, shortly after the decision in this Court affirming the award of the jury, there was filed with the county clerk of Gogebic what is known herein as' defendant’s “Exhibit 502” containing the facts with reference to the condemnation, including the verdict of the condemnation jury, schedule of the lands included, the verdict entered, the judgment- entered thereon, the remittitur from the Supreme Court affirming the judgment,, a.copy of a resolution passed by the administrative board on the 21st day of March, 1944, setting aside-funds for the ■ acquisition of the lands and certification of D. Hale Brake, treasurer of the State of Michigan, dated March 5, 1947, stating that he had set apart and was now keeping moneys directed by the resolution of the State administrative board in payment for the lands as required by the verdict.
On May 8, 1947, the State treasurer, through his deputy, wrote to the Connor Lumber & Land Company that a State warrant payable to it in the amount of $201,977.62 was being held and upon demand would be mailed to it, in accordance with the following computation:
“Connor Lumber & Land Company, gross award .. less: 1945 taxes through $211,872.30
April 30, 1947 .... 1946 taxes through $4,214.89
April 30, 1947 .... 3,959.72
Supreme court costs . 454.59
Circuit court costs .. 230.99
Witness fees, et cetera, allowed by (circuit) court ............. 1,034.49 9,894.68
Warrant........■ $201,977.62”
A letter of the same date was sent to Gordon Con-nor, showing the following computation:
“Gordon Connor, gross award . $4,774.10 less: 1945 taxes through April
30, 1947 .............. $107.07
1946 taxes through April
30, 1947 .............. 100.59
Supreme court costs..... 10.24
Circuit court costs...... 5.21
Witness fees, et cetera, allowed by court 23.31 246.42
Warrant $4,527.68”
Connor, on May 29, 1947, through, their attorneys, wrote to the attorney general of the State of Michigan, stating that they would not accept such computations on which the taxes for 1945 and 1946 were deducted and tha,t the treasurer had not taken into account interest from the date of confirmation or from the commencement of the condemnation proceedings up to the date of the award. The attorneys further stated that they had instructed local counsel to move to set aside the taxation of costs in the circuit court in favor of the State and to take necessary steps for the taxation of costs in behalf of Connor in the event that the taxation was set aside and that if it was the contention of the State that there was no liability for interest upon the award the question would have to be raised in a separate action either in the State or Federal courts.
On motion duly filed, the circuit court for Grogebic county set aside the costs and witness fees totaling $1,265.48 in the Connor Lumber c& Land Company Case, and $28.52 in the Gordon Connor Case, and on December 5,1947, supplemental State warrants were issued for these amounts. No notice was given to Connor that such warrants had been issued, although it knew of the court order authorizing them. The latter appealed from the circuit court’s denial of the cost of fees, of expert witnesses that Connor was put to and in Department of Conservation v. Con-nor, 321 Mich 648, this Court reversed the circuit court and allowed costs and witness fees in favor of Connor to be determined by the circuit court in its discretion. Costs of the second appeal were thereafter taxed in favor of Connor in the amount of $223. Thereupon the circuit court allowed costs and expert and witness fees in favor of Connor in the sum of $4,534.30 on August 16, 1948. A warrant for the latter amount was issued on October 5, 1948, and mailed to Connor, whose attorney refused to accept it until the question of the liability of the State for interest was decided. The warrant upon its return was filed with the State treasurer. 1 ' ■
. On or about November 12, 1948, the instant mandamus proceedings were instituted and an order to show cause was issued. Connor,. as the moving party, did not file a record in this Court until June 23, 1951, a delay of over 2 years. . The record fails to' disclose the reason for this long'delay. Connor now contends that it is entitled to: (1) Interest on the gross awards from the date of the issuance of the preliminary injunction to the present, (2) repayment of 1944 taxes paid by Connor Lumber & Land Company, with interest; (3) costs taxed in its favor on the second appeal, with interest.; Connor also contends that the deduction of the 1945 and-1946 taxes from the gross awards was improper.
. ■ There is no interest due on the awards during the time of the pendency of the proceedings in-the trial court, as claimed by Connor. There was no' action by the State such as to constitute a- “taking” of the property. Although1 Connor was ‘restrained from cutting timber, no loss can be shown thereby which would make interest run. The value of the standing timber was' all-important in assessing damages i,n favor of Connor, who was awarded'damages for an amount found to be the value of the land and the timber. Had Connor proceeded to'-cut the timber it would have réduced very materially the. value of the land, and consequently the jury award, so its claim for interest during the pendency of the injunction cannot be allowed on that'basis.. ■
/ The moneys to pay- the judgment' on the award were available at the time it was entered. - Connor, however, chose to appeal, and thus. the' award did not become final'until the judgment ¡ on the jury’s award was affirmed by this Court. "We cannot subscribe to Connor’s claim that it was- entitled to in terest for th,e périod that elapsed during the timé from the date of the judgment and that of its .affirmation by' this .Court. The moneys had been .appropriated by the State and were held not through the State’s fault but through the act.or fault of Con-nor. We were presented with a similar situation in Marion v. City'of Detroit, 284 Mich 476. Money was set aside to. pay the condemnation award and the judgment of the condemnation. co.uft was appealed, no demand for the amount of the award being made until after the appeal. It was héld that no interest was proper 'for the period of the appeal as a tender had been made which relieved the city of liability for interest; Although the city had originally tendered interest on. the award to the date of final affirmance) we found that no .interest should be charged from the date the funds were set aside. The effect of the ruling was that there was no “taking” such as to give rise, to interest as had existed in Campau v. City of Detroit, 225 Mich 519 (32 ALR 91).
Connor’s claim for interest, after the judgment and up to the present time should similarly be denied until proper demand is made. If Connor is correct in its. contention that the award draws interest to date, it could have waited for years, .refusing -to ac: cept the amount of the awards on some technicality or other, until it needed the money, in the meantime drawing 5% interest on the whole amount at the expense .of- the State. PA 1911, No 149 (CL 1948, § 213.36 [Stat Ann § 8.26]), provides:
“When a verdict of the jury shall have been finally confirmed by the court, and the time within which to take an appeal has expired, or if an appeal is taken, on the .filing in the court below of a certified copy of the order of the Supreme Court affirming’ the judgment of confirmation, it shall be the duty of the clerk of the court to transmit to the' peti-tioner a certified copy of the verdict of the jury and of . the judgment of confirmance, and of the judgment if any of affirmance, and thereupon, or within 1 year thereafter, said petitioner shall set apart and cause to be provided the amount required to make compensation to the owners of and persons interested in the private property taken as awarded by the jury, and shall by resolution direct payment tó the persons respectively entitled to the money so set apart and awarded; and it shall.be the duty of the treasurer of the petitioner to hold said money so set apart, to securely keep said money for the purpose of paying for the property taken and to pay the same to the persons entitled thereto according to the verdict of the jury on demand, and not pay out the money for any other purpose whatever. When ever the necessary sum is actually set apart in the hands of said treasurer, said treasurer shall, giving the title of the cause and describing the property taken, make and sign duplicates verified by his oath, showing that the amount of compensation awarded is in his hands, and shall cause 1 of the certificates to be filed in the office of the clerk of the court in which the proceedings' were had, and the other to be filed with the register of deeds of the county, which certificate shall be prima facie evidence of the matters therein stated. Whenever the amount of compensation is thus set aside and thus secured to be paid, the petitioner may enter upon and take possession of and use such private property for the purpose for which it was taken. In case of the resistance or refusal on the part of any one to the petitioner entering upon and taking possession of such private property, for the use and purpose for which it was taken, at any time after the amount of the compensation aforesaid is actually set aside and ready to be paid to those entitled thereto, the petitioner may apply to the court and shall be entitled on making a sufficient showing to a writ of assistance to put it in possession of the property.” (Italics ours.)
No demand lias been made for the proper amount due Connor up to the present time. We can see no reason for Connor’s delay. It is true that it did not have to accept payment piecemeal, but it could not demand more than was due it. It could have offered to accept under protest on account the sum that the State concluded .was due them and litigate the comparatively small additional sum claimed. If the State refused to do this, Connor could have promptly applied to the proper tribunal to determine the amount. Instead Connor through its attorneys when the State on October 15, 1948, sent its warrant for the amount found due Connor for costs for witnesses and experts, in accordance with our opinion in Department of Conservation v. Connor, 321 Mich 648, replied in a letter addressed to the attorney general:
“We cannot accept this check in full settlement of the costs and will hold it subject to your order until the question of the liability of the State for interest is decided by the Court.”
We believe the case is ruled by Marion v. City of Detroit, supra, when we held (syllabus):
“Where a demand is necessary as a foundation for a claim of interest, it must be a distinct demand for the sum of money to which the person making the demand is entitled, and if the statute requires that a demand be made in writing, substantial compliance with requirements must be made to start the running of interest,”
and quoted with approval from Appleton Water Works v. City of Appleton, 136 Wis 395, 399 (117 NW 816), as follows:
“If private individuals were involved, no demand for payment would have been necessary to start the running of interest. With municipal corporations thq rule is different, in some jurisdictions at least, and a demand of payment is held necessary to create a default on the part of such corporations so as to set interest running.”
■Such is the rule in the instant case. The State could not use the funds so appropriated, nor could it pay Connor when it insisted on a larger amount than it was entitled to.
' The same is true in regard to the costs later granted Connor when the costs of $1,265.48 in the •Connor Lumber é Land Company Case, $28.52 in the Gordon Connor Lase in the original suit were set aside, the State issued its warrants for each of these amounts. When costs amounting to $4,534.30 were reassessed in favor of Connor, the State issued its warrant for this amount. However, Connor made no proper demand for such amounts, but refused them demanding, instead costs, interests and taxes. Con-nor therefore is not entitled to interest on such costs, as it made no proper demand per statute and as required under the doctrine of the Marion Case.
After the condemnation suit was begun and judgment entered on the verdict, in January, 1945, Con-nor paid the 1944 taxes on the Connor Lumber & Land Company properties in the amount of $3,810.60. It madé no claim to be reimbursed for such taxes until the present mandamus proceedings were instituted. It stated it was required to pay because of -. land contracts with others, to protect such contracts from forfeiture. At this time and subsequently when the 1945 and 1946 taxes became due, the title and possession rights were still in .Connor, although ,it had been enjoined from cutting the timber. There :had been no “taking” by the State so as to become liable for taxes. The State did not own the property while the appeal was pending. Connor strenuously contends that when it was enjoined from cutting timber, the State took possession, at least constructively, and should have repaid the 1944 taxes and made no deduction for 1945 and 1946 taxes assessed against the property and which taxes Conservation paid. The law is plain, however, that the State could not take possession while the appeal was pending in which Connor denied necessity and the adequacy of the award, and even though Connor may claim it has some equitable rights to a release from taxes, it being the sole title owner was subject to PA 1931, No 270, as amended by PA 1941, No 365 (Stat Ann 1946 Cum .Supp § 8.231), which provides:
“Sec. 1. In the case of property taken in any condemnation proceedings, the award shall first be applied to the payment of all taxes and/or special assessments. In case such award shall be insufficient to pay all of such taxes and/or special assessments, such award shall be applied pro rata to the payment of such taxes and/or special assessments, and such payment shall be deemed satisfaction of such tapes and/or special assessments as to the property' so taken and the petitioner shall be entitled tó a receipt from the proper tax collecting officer or officers so stating. The terms ‘taxes’ and ‘special assessments’ as used in this act shall be deemed to include not only delinquent but also current taxes and special assessments as well as any thereafter to be levied upon any assessment theretofore made and moneys required to be paid to redeem such property from sale for nonpayment of delinquent taxes. In case title to such property passes, by virtue of such proceedings after the date upon which the assessment roll is required to be completed and before the levying of the tax or special assessment, or the determination of the amount thereof, á sufficient sum shall be withheld and applied to the payment of such tax or special assessment following the levy or determination thereof. Where lands have been bid in to the State at tax sales and the period of redemption lias not expired, the amount required to .redeem from such sale shall be considered as unpaid taxes.”
We have carefully considered the other authorities cited to us by petitioners, but find them to be so readily distinguishable from the instant case we do not discuss them here.
Connor is entitled to the full amount of the award plus the sum determined by the circuit court as due Connor for witnesses and expert fees and the costs in the second appeal in Department of Conservation v. Connor, 321 Mich 648, but less the amount of the 1945 and 1946 taxes and the amount of the costs of the appeal in the first case in 316 Mich 565. Conservation has the funds and is willing to pay this amount so computed. If it does not do so within 10 days after demand is made, mandamus will issue. For the present it is denied. 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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] |
Reid, J.
On leave granted, defendant appeals from Ms conviction and sentence for robbery armed. Defendant claims errors on grounds of failure of trial judge, sua sponte, to instruct the jury respecting confessions as evidence, improper admission of evidence respecting other offenses, and improper recitals by court and prosecutor to the jury of some phases of the testimony in unexplained absence of the attorney for defendant.
Defendant and another, Willie Jenkins, were jointly tried and each found guilty by a jury in recorder’s court for the city of Detroit, on March 3, 1949, of an armed robbery committed March 21, 1948.
Defendant claims that the victim of the robbery, Glenn Baltz, had so poor opportunity to see the 2 robbers, and Baltz’ recollection when testifying a year later was so indistinct, that without proof of alleged confessions, the jury would not or might not, have found defendant guilty.
Baltz testified that the 2 men hailed him at Woodward and the Boulevard in Detroit at about 12:30 a.m., March 21, 1948; it was dark; the 2 men got into witness’ taxicab and after other directions finally directed him to drive down Pinehurst and told him to stop near Chippewa, where the 2 men, who had been riding on the back seat, told him it was a stick-up; witness said, “What do you mean, a stickup?”; that defendant Thomas had a knife. Witness further testified,
' “They asked me for the dough. They took the money out of the changer, bills in my pocket and looked through my billfold. They took $23 and some cents. I saw only one knife. The tall guy who was doing the talking had it.
“Q. And you identify him as James J. Thomas, is that right?
“A. Yes.”
Witness further testified,
“After that he grabbed the keys out of the ear, and I said to leave me the keys, and he said- they would leave them down the street. He left them down the street, about half a block away. I saw them go away.”
Witness further testified that defendant is the one who told him to stop and held the knife on the witness; that Jenkins stood outside the door with his hands in his pockets; that the defendant took the money and asked Jenkins if he had the witness covered, to which Jenkins replied in the affirmative; that this took about 3 minutes, about 5 before they got away; that defendant did the work; that Jenkins stood there. Witness further testified:
“I claim I had a pretty good look at these 2 men.”
Officers Cochill and Kennedy testified to confessions made by the 2 men after their arrest. Jenkins testified he was beaten by officers and denied that he confessed. Defendant testified that he was threatened by officers but did not confess.
Defendant claims that the trial court must instruct the jury on the law relating to confessions, without request, where there is a conflict of testimony as to whether the confession is voluntary.
Defendant cites and relies upon People v. Prestidge, 182 Mich 80, in which there was uncontradicted testimony which showed that the confession of defendant in that case was not voluntary. The opinion in the Presiidge Case is therefore not controlling in the instant case where the voluntariness of the • confession is in dispute.
Plaintiff cites People v. Eddy, 252 Mich 340, in which there were no requests to charge and the court made no reference whatever in his charge to the statements or confessions reported to have been made by the respondent, and in which case the conviction was confirmed. ■ There was a very substantial question in the Eddy Case as to whether the 2 confessions signed by. Eddy were voluntary. The opinion in the Eddy Case recites at page 343,
“He claims that when he was at the office of the State police in Jackson, he was struck on the mouth by a State trooper, and that his lips bled for a considerable period.”
We further quote from the Eddy Case, pages 344 and 345:
“It is further claimed that the court erred in not charging the jury that they should not pay attention to the statements or confessions of respondent. While it would have been very proper for the court to have made reference to the confessions inasmuch as he discussed the other testimony and he should have done it sua sponte, there was no error in his failing to do so under the circumstances. The confessions were introduced, and full and complete testimony was given to show the circumstances under which they were obtained and that they were voluntary. Respondent in his defense claimed that they were improperly obtained. It became a question of fact thereupon, whether the confessions were signed by respondent in the form in which they were introduced and whether they were made without duress, threats, or promises'. Respondent was defended by able counsel who made no requests to charge whatsoever. Pie did not deem it necessary after the court gave its charge to ask that further instructions be given in regard to the confession. He kept absolutely silent. The failure to make requests to charge precludes him from objecting to the incompleteness of the charge. People v. Smith, 122 Mich 284.”
No error was committed by the court in the instant case in the matter of not charging the jury as to the confessions.
Our statute, CL 1948, § 768.29 (Stat Ann §28.-1052), provides in part as' follows:
“The failure of the court to instruct on any point of law shall not be ground for setting aside the verdict of the jury unless such instruction is requested by the accused.”
Defendant claims that construing this statute to excuse the failure of the court to instruct the jury as defendant claims the j,ury should have been instructed, results in want of due process. We find no want of due process.
Defendant further claims that the assistant prosecuting attorney’s reference regarding other offenses, constituted reversible error.
On the cross-examination of defendant by Mr. Kotelly, the assistant prosecuting attorney, the following occurred:
“Q. Did you make a statement at the prosecuting attorney’s office on the night of November 8, 1948?
“The Court: Regarding this case, you had better put it.
“Mr. Kotelly: If your Honor please, in People v. Wright [315 Mich 81], I have a right to go into admissions on other matters as well.
“The Court: Go ahead.
“Mr. Tauber [attorney for defendant Thomas]: Well, then, let’s go into them.
“Q. Did you?
“A. Yes, I did, if you want to take it that way.
“Mr. Tauber: Now, if your Honor please, I want to — I ask for the right to show what happened to that particular case; otherwise, I am going to ask for a mistrial.
“The Court: All right, I told the prosecuting attorney.
“Q. What else did you say to the police officers at this time?
“A. I didn’t say anything; they put me back in the cell block.”
Following the above matters, defendant testified on redirect examination that he was acquitted on the trial of the case spoken of by Mr. Tauber.
Defendant was permitted to show his acquittal in the other case, the only privilege respecting that phase of the case that he requested.
“A statement by the prosecutor that he expected to prove certain facts but not followed by proofs is not ground for reversal of a conviction if the statement was made in good faith as the jury must be presumed to have based their verdict upon the evidence and not upon the statement.” People v. Ryckman (syllabus 2), 307 Mich 631.
The foregoing statement in the Ryckman Case may serve to point out the general consideration of statements by a prosecutor about other cases in which the defendant is claimed to have been involved. Whether there is prejudice or the degree of prejudice, if any, depends on the circumstances and nature of each individual case. No error occurred in the case at bar, in view of the statements made by defense counsel at the trial.
Defendant further claims there was reversible error because the trial judge and the prosecutor gave the jury their versions of the testimony in response to requests by the jury who had been brought into the courtroom during their deliberations on the verdict. This has reference to the following which occurred when the jury returned to the courtroom, when defense counsel was absent for reasons not explained:
“The Foreman: There is some question, your Honor, as to whether or not the defendants at the time of the robbery in question, whether or not they had a knife — at the time of the confession, rather — I am sorry — that it was confessed as robbery armed.
“The Court: Am I right about that?
“The Foreman: They claimed they had a knife, didn’t they?
“The Court: You heard that testimony. They claimed there was a knife, didn’t they?
“Mr. Kotelly: That is right.
“The Court: And the knife was offered in evidence ?
“Mr. Kotelly: No, it wasn’t in evidence but they admitted that they had a knife.
“The Foreman: At the time of the confession or at the time of the robbery?
“Mr. Kotelly: At the time of the confession they claimed they had a knife at the time of the robbery.
“The Court: That was the statement taken before the police officers. You have heard their testimony regarding that, and they admitted that.
“The Foreman: Whether or not it was at the time of the confession or at the time of the robbery?
“The Court: They confessed they had it at the time of the robbery, if I am right, now.
Mr. Kotelly: And the cab driver also testified he saw the knife, if your Honor please.
“The Court: Is that all?
“The Foreman: Yes.
“The Court: Very well.”
Witness Baltz had testified that defendant had a knife; and defendant claims the statements of the court and prosecutor to the jury to be erroneous because of their saying to the jury that at the time of the confession they claimed they had a knife. Witness Kennedy testified,
“Thomas stated they held up the driver, and he, Thomas, didn’t have a knife, that Jenkins had the knife.”
When the juror asked whether or not the defendants at the time of the confession, confessed that “they had a knife,” .it is evident that the juror had in mind the possession of 1 knife, in the hands of 1 defendant and displayed by 1 defendant for the purpose of effectuating the robbery, and that the court used the statement that “they had a knife” with the same meaning. The statements by the court and assisting prosecuting attorney did not mislead the jury. Commendable practice would have been to have caused the stenographic notes to be read on the point spoken of by the jury. There was no reversible error.
Other claimed errors are not set forth in the questions involved as stated by the defendant, and are of such nature that they need not be specifically disposed of. Judgment affirmed.
North, C. J., and Dethmers, Butzel, Carr, Bushnell, Sharpe, and Boyles, JJ., concurred.
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] |
Boyles, J.
Plaintiff is a private hunting and fishing club which owns about 6,500 acres of land in Caldwell and Lake townships in Missaukee county. There are several lakes on the property, and its usefulness is recreational, hunting and fishing. The property is traversed by numerous roads and trails which plaintiff claims are private roads. The entire acreage is fenced in.
The road here particularly involved runs past Dyer lake on plaintiff’s property from county'road 42. In 1949 the plaintiff extended its fence which was along said county road to cross the entrance from county road 42 on the Dyer lake road and .opened a new entrance somewhat south for a better view of approaching trafile. The defendant county road commission had the fence across the road removed, claiming it was a public highway. The fence was replaced by plaintiff and again removed by said defendant, whereupon plaintiff filed the instant bill of complaint in the circuit court for Missaukee county to enjoin the defendants from further interfering with the, fence. The defendants, by cross bill, claim that the Dyer lake road, as well as some 10 or more other roads in plaintiff’s property, are public highways and ask the Court to decree accordingly. By stipulation, counsel have agreed that the instant case involving the Dyer lake road will control the question whether the other roads are private roads or public highways. The trial court held that they were public roads, dismissed plaintiff’s bill of complaint, and from the decree to that effect the plaintiff appeals.
The trial court relied mainly on 3 claims advanced by the defendants and again relied upon by the defendants on the appeal.
(1) The county road commission had certified to the State highway commissioner in 1939 that the roads in question were county roads, under PA 1939, No 36, an amendment to the McNitt act. While disputed, the record indicates that these roads had not been taken over by the county road commission originally as public highways under the McNitt act during the 5-year period allowed by that act from 1931 to 1936. However, that act as amended by PA 1939, No 36, after the expiration of said original 5-year period, provided that the State highway commissioner and the several boards of county road commissioners should biennially “fix the total mileage of roads in each county of the State in actual use for public travel at least 3 months each year and taken over by the board of county road commissioners as county roads” subsequent to 1931. We hold that the McNitt act, and the later amendments, refer to the taking over of township roads and do not authorize the county road commission to take private roads into the county public highway system as- public highways. Nor would the proofs in this case justif}^ any conclusion that public use of the roads here involved had automatically converted them from private to public roads under CL 1948, § 221.20 (Stat Ann § 9.21). See Green v. Belitz, 34 Mich 512; Irving v. Ford, 65 Mich 241; Stickley v. Township of Sodus, 131 Mich 510 (59 LRA 287). Hence, no particular importance can be attached to the action of the county road commission in certifying the roads in question to the State highway commissioner, for the obvious purpose of using them to increase the apportionment of State highway money allowed counties for county roads under said act. If the Dyer lake road was a private road of the plaintiff, its character could not have been changed to a public highway by said action of the county road commission. Under its title and the other provisions of the McNitt act and amendments thereto, it applies only to the taking over of township roads.
(2) Considerable importance was attached in the trial court to a petition in 1947 or 1948 addressed to the county road commission and the township boards of Caldwell and Lake townships, indicating it was signed by 9 property owners (including directors of the plaintiff) and asking that 3 designated roads on plaintiff’s property (including the Dyer lake road) be closed. No proceedings were had on the petition and it was never acted upon by the township boards or the county road commission. The reason for such inaction does not appear in the record. Defendants claim that it now estops the plaintiff from claiming these roads are private roads. Regardless of the probative value of the petition, it does not operate as an estoppel of the plaintiff’s claim that the roads are private, or to change their character to public roads. It is logical to consider that the previous use of the roads by the public and the unsuccessful efforts of the plaintiff to prevent such claimed unauthorized use by fencing, posting signs, patrolling during the hunting season, had created a doubt as to whether the public had made such use of the roads as to change their character, and that the petitioners felt that this doubt might be definitely settled by action of the public authorities abandoning the roads. No action was taken, and the doubt remained. Apparently it still does.
(3) The roads in question had been used by the public. The county road commission and the State conservation commission occasionally did repair and maintenance work on the roads in question — mostly other than the Dyer lake road. No doubt these are elements to consider in determining whether the roads (and particularly the Dyer lake road) were private or public highways. Plaintiff had also worked to put the roads into condition for use, and repaired them when impassable.
The title to the roads, as well as that of the lakes and the rest of the land in the area in question, is in the plaintiff corporation. Originally a wild and rugged area, lumbering operations had ended there in about 1921. At that time, both before and after, many of the roads and trails in question here, including the Dyer lake road, have been used by the public. Whether by consent, or as trespassers, or as a matter of right, is in dispute. There was no dedication of the roads, grades and trails to the public, or acceptance by any public authority. In 1929 this area had been acquired on land contracts by a private hunting and fishing club which had posted signs warning of the private ownership. The vendee company went broke. The acreage was crossed by trails, old lumber roads and railroad grades. In 1932 the plaintiff club acquired the property, brushed out the trails and made the grades and roads more usable, and built some new roads. Later, plaintiff fenced in its property, posted trespass signs, patrolled for fires and violators, built a lodge, stocked the private lakes, used fire-fighting and snowplow equipment, and kept the roads in usable condition. After the early days, the need for public use of the roads in the area largely ceased to exist when public roads were constructed and maintained around and outside plaintiff’s property. The roads and trails within the property, with occasional aid from the outside highway authorities, were improved and maintained by the plaintiff. About 1937, and again in 1945-1947, the county did work toward their maintenance, partly because plaintiff was short of funds.
Plaintiff established at least a prima facie case to claim private ownership by proving title and possession. There are no public records to the contrary. There was no express dedication to public use by the plaintiff. The defendants claimed an implied dedication arising from public use. The defendants called witnesses to show that they had used the roads and trails for various purposes without objection by plaintiff. The testimony also shows that the plaintiff took means to exclude the public. No implication of dedication can arise in contravention of the facts. The use made by the public under these circumstances does not change the character of private roads to public highways.
“A mere permissive use of a private road by the general public, however long continued, will'not make it a public highway. ',
“To constitute a highway by user under the statute (CL 1897, § 4061, providing that all roads that have been used as such for 10 years or more shall be deemed public highways), such use must have been accompanied by some act on the part of the township authorities so open, notorious, and hostile as to be notice to the landowner that his title was denied.” Stickley v. Township of Sodus (syllabi), supra.
“To constitute a common-law dedication of land for a highway, the owner of the land must set apart, for such purpose so much of the land as he intends to be appropriated therefor, and must give it over to the public with the intention that it be used as such, and there must be an acceptance thereof by the public. ......
“To constitute a highway by user, there must be a defined line, and it must be used and worked upon by the public authorities, and traveled over and used by the public, for-10 consecutive years, without interruption, and the possession thereof by the public must be open, notorious, and exclusive.” Alton v. Meeuwenberg (syllabi), 108 Mich 629.
“The use required by the statute to make a way a public highwáy is one accompanied by some act on the part of the township authorities, open, notorious, and hostile to the private ownership, which gives the original owner notice that his title is denied.” Murphey v. Township of Lee (syllabus), 239 Mich 551.
• “Use alone by public of old logging road for many years after lumbering operations had ceased is insufficient to establish it as public highway by user, since, to establish if as such, there must also have been acceptance by public at least by taking over control and maintenance of some portion of alleged highway.
. “-That irregular way across plaintiff’s land was méans of passage between other roads, control of- which had been taken by township, will not suffice to establish acceptance of said irregular way and thus make of it public highway.” Snow v. Murphy (syllabi), 248 Mich 659.
Decree set aside for entry of decree in this Court granting plaintiff the injunctive relief prayed for, with costs to appellant.
North, C. J., and Dethmers, Butzel, Carr, Bushnell, Sharpe, and Reid, J J., concurred.
PA 1931, No 130 (CL 1948, § 247.1 et seq. [Stat Ann §9.141 et seq.\).
The later repeal of said acts by PA 1951, No 51, has no bearing here.
Be-enacted as CL 1948, § 221.20 (Stat Ann § 9.21).—Beporter. | [
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] |
Reid, J.
Plaintiff began this suit by filing declaration in common pleas court for the city of Detroit, suing on 3 counts on his own behalf and as assignee of 7 other employees of defendant. Defendant denied liability. The common pleas court rendered judgment for plaintiff for $958.93 and costs. Defendant appealed to the circuit court for Wayne county, which rendered judgment for defendant of no cause of action. Plaintiff appeals to this Court.
Plaintiff claims and defendant denies, that a duly authorized agent of defendant entered into an agreement with the UAW, locals 155 and 157, which agreement among other things, gave plaintiff and his assignors, as employees of defendant, certain vacation benefits. In view of our decision hereinafter stated, we deem it sufficient to accept for the purposes of this decision only, plaintiff’s contention that the agreement in question was binding on defendant.
The pertinent provisions of the agreement, which in booklet form was received in evidence as exhibit No 7 on the trial, are contained in exhibit B attached to the booklet, and are as follows:
“Compensation in lieu of vacation shall be paid on the following basis:
“1. Employees on the seniority list of the company [i.e., defendant] on December 1, 1947, who will have completed at least 6 months’ work since December 1, 1946, shall be entitled to compensation in lieu of vacation.
“2. Such employees having more than 6 months’ but less than 1 year of seniority shall receive 20 hours pay.
. “3. Such employees having 1 year or. more of seniority shall receive 1/12 of the following allowances for each month or major portion thereof worked between December 1, 1946, and November 30, 1947. * * *
“5. Compensation in lieu of vacation shall be payable on December 20, and shall be determined on the basis of the individual employee’s straight time hourly rate of pay, exclusive of any bonus, either for night shift or for overtime as of December 1, 1947.”
During the month of September, 1947, defendant permanently ceased operations for the reason that the business was being operated at a loss, making it impossible for defendant to continue business. Before us is the sole issue, is plaintiff entitled to vacation pay ?
Plaintiff contends that defendant’s voluntary cessation of operations before December 1,1947, cannot justly deprive plaintiff of the earned vacation money due plaintiff.
Plaintiff cites and relies on In re Wil-Low Cafeterias, Inc. (Kaftan v. Siegel) (CCA), 111 F2d 429. In that case, Kaftan had been an employee for the bankrupt Wil-Low Cafeterias, Inc., for whom Siegel became trustee in bankruptcy. The question was over the validity of the claim of Kaftan for vacation pay. The agreement with the union provided :
“All full time employees who will have concluded 6 months’ employment during the months of June, July, August, or September shall be entitled to 3 days’ vacation with pay. All full time workers who will have completed 1 year’s employment during the said months shall be entitled to a week’s vacation with pay. All vacations shall take place during the months of June, July, August and September but may take place at any other time by consent'of the union and the employer.”
The debtor operated under the contract until June 7, 1938, when the debtor was adjudicated bankrupt; 7 of its 12 stores were immediately closed and the employees thereof summarily discharged. Kaftan had worked for the debtor for 9 years, and was one of the discharged employees. He had received no vacation though his vacation had already been set for August. The court found that Kaftan had completely earned his vacation prior to his discharge and allowed his claim for pay for the vacation.
Kaftan had met the 2 qualifying requirements’: First, the 6-month period of work, and second', that the end of the 6-month period should be in one of the 4 months, Juno, July, August and September. As distinguished from the qualification of Kaftan in the Wil-Low Cafeterias Case, the plaintiff Treloar in the instant case met only 1 qualification, that is the 6 months’ work, and did not meet the second necessary qualification, the qualification date of December 1, 1947. The cited judgment in the Wil-Low Cafeterias Case does not furnish a precedent for plaintiff in the instant case, as to plaintiff Treloar’s second required qualification.
The trial judge in the instant case recites in his opinion:
“The record shows that while the first of these conditions, namely, the minimum 6-month term of work, was fulfilled by plaintiffs, the second condition, namely, employee on the seniority list of the company on December 1, 1947, was not fulfilled by plaintiff Elmer Treloar, or by any of his coemployee assignors.”
The cessation of operations by defendant in September, 1947, must be regarded as though an involuntary act by defendant, and not a merely willful violation of any agreement to continue the business. He had a perfect right to discontinue an unprofitable operation.
Plaintiff claims that the agreement should be liberally construed in his favor. The agreement clearly prescribes a condition precedent to vacation pay that the employee shall be on the seniority list on December 1, 1947, as well as having completed at •least 6 months’ work since December 1, 1946. The 2 conditions precedent are clearly stated and there is no doubtful meaning to be resolved in plaintiff’s favor. "We must apply the clear provisions of the agreement as we find them. It was competent for the parties to fix and agree upon December 1, 1947, as the eligibility date and it is not for the court to advance the eligibility date to suit the convenience or wishes of one party to the agreement. It is not for us to review or redetermine the considerations that led to the fixing of the date as December-1, 1947.
Plaintiff and his assigns have failed to qualify under the requirements of the agreement and are not entitled to vacation pay.
The judgment appealed from is affirmed. Costs to defendant.
• North,-C. J., and Dethmers, Butzel, Carr, Bushnell, Sharpe, and Boyles, JJ., concurred. | [
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Stone, J.
This case originated in justice’s court, where plaintiff declared on all of the common counts in assumpsit, and especially for use and occupation, and upon a written lease, filing a bill of particulars in which it claimed rent due under said written lease, dated February 10, 1910, for premises known as Nos. 601 and 602, Bamlet building, as follows:
The plea was the general issue, with notice of eviction and surrender. The written lease in evidence was made by plaintiff, as party of the first part, and the defendant, as party of the second part, for a term of four years and six months from and after March 1, 1910, upon the terms and conditions mentioned, to be occupied for a ladies’ tailoring establishment, and to be used for no other purpose without the written consent of the party of the first part. By the terms of the written lease the rent of $100 per month was to be paid as follows: $100 on the signing of the lease, and $100 on April 1, 1910, and $100 on the first day of each and every month thereafter during the life of the lease, being monthly in advance. The following additional agreement was made, bearing date February 9, 1910:
“Whereas, Bamlet Realty Company is about to make alterations on the sixth floor of the Bamlet building to accommodate Louis Doff, under his lease, and said alterations were to be completed by March 1, 1910, it is agreed that the rent due under said lease shall abate pro rata, during such time after March 1, 1910, as the Bamlet Realty Company is engaged in completing such alterations.
“This agreement attached to the lease of the Bamlet Realty Company and Louis Doff, becomes a part of the same.
“Electric wiring to be run for motor and electric lights to be put in where designated by party of the second part.” Signed by the parties.
Upon the trial of the case in the circuit court, as plaintiff’s counsel was making his opening statement, wherein he claimed $60 for commission paid a broker in re-renting the premises, objection was made by defendant’s counsel on the ground that the item was not in the plaintiff’s bill of particulars. Plaintiff’s counsel then moved the court to allow the bill of particulars to be amended by adding an item of $60, paid for re-renting the premises. There had already been two trials of the case, one in justice’s court and one in the circuit court. The court remarked that the motion came rather late, and that counsel might have made the motion before. Plaintiff’s counsel then stated that he appreciated that it was discretionary with the court, and the court said that its discretion at that late day called for sustaining the objection to the amendment, to which ruling plaintiff excepted. Defendant, by the undisputed evidence, moved into the premises before the 1st of March, at which time the alterations that were to be made had not been completed. Prior to this time the floor had been used as a dance hall, and was not partitioned. There is a conflict in the evidence when the alterations were made —whether before or after March 1, 1910. It appears to be undisputed that the use of the premises by the defendant for the operation of sewing machines was very soon objected to by the plaintiff, claiming that the noise of the machines was such as to disturb another tenant on a lower floor that was using rooms there for club purposes, and the machines were moved from the rooms that were rented and placed in a smaller room not included in the lease, and for the use of which the item of $175 was claimed. The parties do not agree as to who moved the machines, the plaintiff claiming that the defendant acquiesced in the arrangement, and consented to the moving of the machines into the small room. But it was the claim of the defendant, upon the trial, that the machines were moved against his will by one Stoddard, who seems to have been the agent or engineer of the plain tiff; that there was not sufficient space in the small room for the use of the large number of machines needed by defendant in conducting his business, and that only about one-half the number of machines could be set up and used in the small room; that he objected to this, and only consented to the change upon the promise of the plaintiff (which was never carried out) that there should be built an extension to this small room. The testimony was in dispute, also, as to the extent of the improvements that were put in the two rooms mentioned in the lease, the defendant claiming that these rooms were never fitted up suitably for show room and fitting room such as he needed in conducting his business, and that frequent complaint was made to the plaintiff in that regard, and he also complained that, being excluded with his machines from the large room, he had not sufficient room to carry on his business. It is the claim of defendant that in the latter part of May, or first of June, while he and his wife were making complaint to the president of the plaintiff this officer used some profane language to defendant’s wife, which caused their relations from that time on to be unpleasant. A witness for defendant testified upon that subject as follows:
“Q. Did you hear Mr. Doff complain to Mr. Barn-let or Mr. Stoddard at any time about the condition of the fitting room?
“A. Continually, he always complained about it, because he could not do his work. * * * I was present and heard Mr. Doff complain continually to Mr. Bamlet and Mr. Stoddard. First he said he was to fix them up about the latter part of May. One evening about quitting time, while Mr. Doff was at the elevator, he asked when he was to fix it up, when he was to fix up the premises, and he did not use very nice language at that time, and then Mr. Doff walked away.
“Q. What was said at that time, if you will repeat it?
“A. He said, ‘Damn it; I ain’t going to do a damn thing for you.’ And Mr. Doff said, ‘All right, I will look for another place.’ And he said, ‘Get out, and get out quick,’ and they did not complain after that; that was enough; it was the latter part of May.”
It was the claim of defendant that thereupon he commenced to look for other rooms, and, finally, on or about the 1st day of October, he vacated the premises in question, having paid all the rent under the written leasé, during the time of such occupancy. The evidence tended to show that the plaintiff was to some expense later in putting the premises in proper condition, and finally was able to re-rent the premises described in the written lease, on the 15th day of November at the same rental, and the $150 claim is for the rental value of the premises while they remained vacant for the month and a half between October 1st and November 15th. The trial of the case resulted in a verdict for the defendant of no cause of action. There was a motion for a new trial upon the grounds that the verdict and judgment were not in accordance with the just rights of the plaintiff, because said verdict and judgment were against the weight of the evidence and not justified by any proper evidence introduced in the case, because the verdict and judgment were not in accordance with the law, and because the court erred in admitting certain testimony favorable to the defendant and prejudicial to the plaintiff, which is set up in great detail, and also erred in refusing to give plaintiff’s requests to charge, and in the charge of the court. The motion for a new trial was denied, and the reasons therefor stated, to which plaintiff’s counsel excepted, and it has brought the case here upon writ of error.
There are thirty-four assignments of error considered and discussed under the following heads:
(1) Error in admission and rejection of testimony.
(2) Error in not striking out testimony.
(3) Error in not directing a verdict for plaintiff.
(4) Error in the court’s charge. •
(5) Error in refusing to give plaintiff’s requests to charge.
(6) . Error in not granting a new trial and reasons given thereon.
(7) Error in not permitting plaintiff to amend pleadings.
We have examined each of the assignments of error.
(1) In our opinion the alleged errors in admission and rejection of testimony, covered by the numerous assignments under this head, were cured by the court’s withdrawal of the matters from the jury. We cannot better demonstrate this than to quote from the charge of the court. The court, after stating the claims of the respective parties, said, referring to the written lease:
“This contract of lease provided for the renting by the plaintiff to the defendant certain rooms, or certain floor space on the sixth floor of the Bamlet building for a certain purpose, for the purpose of carrying on the business of making women’s skirts and gowns and dresses, I presume, but you have heard from the evidence what the purpose was. There, was also executed at the same time, or at a subsequent time — we are not informed of the time definitely — another writing which provided for cutting up the floor space into rooms by partitions and the furnishing of other things by _ the plaintiff to the defendant. The defendant claims this was not done, but I charge and instruct you that that claim cannot be properly made in this case, for the reason that the contract, that is, the paper writing between the parties, provided for a penalty, and that penalty was that if the improvements were not made as contracted for, then the rent of the premises should, during the time the premises were not put in proper order, cease; and by reason of the fact that each and every month during the time of occupation the defendant actually paid $100, the amount of the rent reserved, he is now estopped from claiming that was an eviction, or that the plaintiff did not carry out his terms of the contract, providing that the certain improvements should be made. So, although certain things have been said in the argument concerning that alleged wrong on the part of the plaintiff to the defendant, and although certain testimony has been táken on that point, I now charge and instruct you that you are to pay no attention to that, for it is not a good excuse for not paying the rent on the part of the defendant that the premises were not put in the condition that the parties agreed they should be put in. So that matter is out of the case.”
It seems, both by reason and authority, that any possible error committed by the admission of the testimony in question was cured by the court withdrawing the subject from the consideration of the jury and the positive instructions given on that point. Hill v. Robinson, 23 Mich. 24; Dykes v. Wyman, 67 Mich. 236-239 (34 N. W. 561); Cadman v. Markle, 76 Mich. 448-454 (43 N. W. 315, 5 L. R. A. 707); Blaisdell v. Scally, 84 Mich. 149 (47 N. W. 585); Tolbert v. Burke, 89 Mich. 142-145 (50 N. W. 803); Smith v. Railway, 155 Mich. 466-472 (119 N. W. 640); Stolz v. Railway, 167 Mich. 300-305 (132 N. W. 1021).
(2) It is alleged that there was error in not striking out testimony. The following appears:
“Plaintiff’s Attorney: I desire to make a motion to strike out all the testimony that alterations were not made, and that the alleged acts do not constitute an eviction or surrender. * * *
“The Court: There is some testimony on the part of some one that Mr. Bamlet, as an officer of the corporation, said, Tf you don’t like it, you can get out,’, and on that declaration they did decide to move, and the question is raised whether they did move because of that, and whether they used diligence in moving.
“Plaintiff’s Attorney: Whether such acts would constitute an eviction, or whether we could put them out?
“The Court: I shall charge the jury that there is nothing here under the repair clause of the agreement that would justify their leaving; that must be so, because a long time has elapsed, and the only justification for leaving was the fact that either the conditions were rendered so intolerable to the tenants, or it amounted to an eviction, or they left under the express consent of the landlord.
“Plaintiff’s Attorney: I want it to appear that we move to direct a verdict for rent for a month and a half, and damages to the small room. I would like to be heard on that, but not in the presence of the jury.
“The Court: There are two matters only suggested by the evidence, the weight being with the jury whether the conditions were rendered intolerable by reason of certain conduct of the plaintiff, and the other is whether an express promise was given, and those two matters are in dispute and are the only matters.”
The defendant insisted and gave evidence tending to sustain his position, that the interference practiced by the plaintiff’s officer, Frank Bamlet, upon the defendant in refusing to allow him to use the rooms mentioned in the written lease for the purposes for which they had been rented, constituted an eviction. We have examined the authorities upon the subject quoted by counsel upon both sides, and are of the opinion that- this claim of the defendant, if found by the jury to be true, would bring the case within the decisions of this court, holding that to constitute an eviction of a party, an actual, physical expulsion from the rooms would not be necessary. Any act or acts of the landlord which deprived the tenant of the beneficial enjoyment of the rooms to which he was entitled under the lease would amount in law to an eviction. Grove v. Youell, 110 Mich. 285 (68 N. W. 132, 33 L. R. A. 297), and cases there cited; Adams v. Werner, 120 Mich. 432 (79 N. W. 636); Pridgeon v. Boat Club, 66 Mich. 326 (33 N. W. 502). There this court used the following language:
“A party should be held evicted when the act of the landlord is of such a character as to deprive the tenant, or has the effect of depriving him, of the beneficial use and enjoyment of the whole or any part of the demised property, to the extent he is thus deprived.”
We do not think there was any error in refusing to strike out the testimony upon that subject.
(3) We do not think the court erred in refusing to direct a verdict for the plaintiff.
(4) Error is assigned upon the following part of the charge of the court:
“The plaintiff claims that under the terms of the lease the defendant was holden and bound for a period of 41/2 years. Instead of staying during that period and paying rent, that without any legal justification or excuse the defendant left the premises at the expiration of some six months. The plaintiff claims that it did what it was obliged to do — it sought to get another tenant — and that it used expedition in that matter, but did not succeed in getting another tenant until the expiration of a month and a half, and therefore it claims the right to recover here the rental for a month and a half. That is how their claim m that regard amounts to $150. So much for the plaintiff’s claim. With regard to that claim the defendant says this:
“ ‘You agreed in your lease to give me the premises fitted up and suitable for my business, and it was agreed and understood between us that I was to carry on a certain business, and you knew that my business would call for the use of certain sewing machines, and for the use of the premises in a certain way, and you contracted to give me the premises to be used in that manner, and this obligation on your part you failed to fulfill, and therefore you evicted me, and you cannot complain because I left.’
“The defendant claims that he had the right, under his lease, to set up his sewing machines and run them in any part of the premises he desired under the terms of this lease. Because they made a noise, the plaintiff said, ‘You cannot run your machines here,’ and took them out of the principal room and put the same in a small room, which, the defendant claims, prevented him carrying on the volume of business that he expected to carry on in those premises. In answer to that claim of the defendant the plaintiff claims that the defendant was perfectly satisfied, and that when the suggestion was made that the sewing machines were making too much noise for the comfort and convenience of the people who occupied the premises below these rooms, the defendant acquiesced and used his sewing machines in the small room, called the smaller room here, and nothing was heard in the nature of a complaint from the defendant. There is a statement of facts that is contradicted. You, as judges of the facts, will have to find out from a search of the evidence in the case just which theory is established. I charge and instruct you with regard to the defendant’s claim this: That where one leases premises to be used for certain particular purposes, if he is prevented from carrying out that purpose by his landlord, there becomes an eviction in part, if not in whole, and that where there is a partial eviction, the tenant has the right to remain and pay the rent but he cannot be holden under the lease. On the other hand, if the tenant acquiesces in what is done, he cannot afterward, after the lapse of a long time, after he has slept on his rights and given the other party to the lease the idea that he was perfectly satisfied, he cannot then step forward and terminate the lease. The rights of the parties are sometimes fixed by a series of conduct as well as by word by one and agreed to by the other, and the claim of the plaintiff is this: That as the defendant occupied those rooms without any notice to it of dissatisfaction, during all that time there was no legal eviction, either in whole or in part, from the premises. That is a question of fact, and will rest entirely with you to be determined. Now, it is further claimed by the plaintiff that this occupancy by the defendant was continued; that nothing was ever said by the plaintiff that gave the defendant the right to leave at any time. The defendant with regard to that claim of the plaintiff, says this: That at some time during the occupancy the defendant objected to the manner in which things were being conducted, and that the president, Mr. Bamlet, himself, of the Bamlet Realty Company, stated that if the defendant was not satisfied, he could get out, and that he accepted that as a release from his obligation under the lease, and actually did get out with as great expedition as the circumstances would permit. Now, if anything of that kind was said, the evidence shows that it was said in the spring, either in May or June, but the time is not definitely fixed by any of the witnesses, and you will have to determine whether it is reasonable to believe that the defendant got out by reason of that statement, if the statement was made, although the statement is denied, whether he got out at the end of September by reason of that, or whether some other thing in the mind of the defendant at that time caused him to move. Where a landlord says to a tenant, ‘You may leave,’ if you wish to take advantage of that permission, you must leave, not immediately, but with as great expedition as circumstances will permit. So if you consider that claim, you will have to consider the circumstances that existed at the time or subsequent to the time it is claimed that the release was given, of the permission was given to move out. The defendant claims he was delayed by reason of the peculiarity of the business and the difficulty in obtaining suitable quarters in which to move. Those circumstances have been narrated, and you will have to study the evidence to determine what the truth of these claims is. So much with regard to the claim of the plaintiff with regard to the $150 item.
“Now the second item: The plaintiff claims that the defendant occupied a smaller room. That room was not spoken of in the lease or in the other contract that existed at the time between the parties. It is claimed that that room was actually occupied by the defendant, and that claim is not denied, and for a period of some seven months. Now, with regard to that claim, the plaintiff claims that nothing ever was actually said except that it was understood that the defendant^ wanted that room, and the plaintiff claims that wanting the room and actually using it at a loss or detriment to the plaintiff constituted a contract be tween them, and carried with it an agreement on the part of the defendant to pay such a sum for rental as the room was reasonably worth. You have heard the testimony with regard to that, and you will have to consider that claim after a full consideration of the testimony. The defendant, with regard to that claim, says this: That he was prevented from using the room that he had actually hired, and prevented from using it by the plaintiff because of the noise made by the sewing machines that I have already referred to, and he says that the putting of him — that is, the defendant — into that room was an act on the part of the plaintiff for the plaintiff’s own benefit, and not for the benefit of the defendant at all, and therefore he claims that the claim of the plaintiff is unjust, and that there was no contract relations that ever existed, either by contemplation in law or agreement of the parties, for the leasing of that room. That becomes, of necessity, a disputed question of fact, and you will have to determine that. If you find that the plaintiff’s claim in that regard is established by the proofs, then the plaintiff is entitled to a fair and reasonable compensation for the use of that room for the period of seven months. The full claim that he makes is for $175. If you find that the defendant has established his theory with regard to that item, then the defendant, with regard to that item, is entitled to a verdict of no cause of action.”
We have examined the portion of the charge complained of, and are of opinion that there is no error therein, and that the court properly submitted to the jury the question whether the leaving of the premises under the circumstances was within a reasonable time. In our opinion this view finds support in the case of Kuschinsky v. Flanigan, 170 Mich. 245 (136 N. W. 362, 41 L. R. A. [N. S.] 430, Ann. Cas. 1914A, 1228), and cases there cited.
(5) In our opinion the charge of the court properly presented the questions involved to the jury, and the court did not err in refusing to give plaintiff’s requests to charge.
(6) We have examined the motion for a new trial, and are of opinion that the court did not err in refusing to grant the same. We are not prepared to say that the verdict was so clearly against the weight of the evidence as to demand interference on that ground.
(7) We think the court did not err in refusing to pérmit the bill of particulars to be amended. It should be borne in mind that this was the third trial of the case, and, in the exercise of its discretion, we find no error in the refusal of the court to permit the amendment. Unlike the case of Connell v. McNett, 109 Mich. 329 (67 N. W. 344), the proposed amendment was not justified by anything contained in the declaration or bill of particulars, and would operate as a surprise to the defendant.
We have considered all of the assignments of error, and are of the opinion that there is no reversible error in the record, and the judgment below is therefore affirmed.
Brooke, C. J., and McAlvay, Kuhn, Ostrander, Bird, Moore and Steere, JJ., concurred. • | [
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] |
Brooke, C. J.
Complainants are the.brothers, sisters, nephews, and nieces of William Wright. Defendants are, respectively, administrator and children of Elizabeth Wright, who was the wife of William Wright. William and Elizabeth had been married some 11 years, when on the 10th day of September, 1912, William, who was suffering from heart disease, caused a scrivener to be sent for, and instructed him to prepare a conveyance of the homestead to William Wright and wife. Later he modified those instructions as follows:
“ T want you to deed it right to her; I don’t know what will happen.’ I got the impression it was going to be a direct deed, and he added, ‘Make it jointly; I don’t know how things are going to go.’ ”
Whereupon the scrivener drew a deed, containing the following:
“Between William Wright, of the township of North Plains in Ionia county and State of Michigan, of the first part, and William Wright and Elizabeth Wright jointly, the survivor to have full ownership of the same place, of the second part.”
It is the claim of complainants, and the learned circuit judge so held, that this deed was an absolute nullity, and that, therefore, William Wright having died without issue, the complainants, being his brothers and sisters and children of a deceased brother, were entitled to have.one-half of said estate, and that the other half belonged to the defendants as heirs at law of their mother, Elizabeth Wright. From the decree entered, defendants appeal.
The intention of William Wright to create an estate in himself and wife by the entireties cannot be questioned. Assuming, but not deciding, that such an estate cannot be created by the instrument in question, what is the legal effect of that instrument? The infirmity in the conveyance is said to be that a grantor cannot convey directly to himself. Assuming this to be true, we still find a valid conveyance from William Wright, as grantor, to his wife, Elizabeth Wright, as grantee. It is well settled that, where one of several grantees, for any reason, is incapable of taking, one or others capable of taking shall take the whole. Dowset v. Sweet, 1 Ambler’s Eng. Chan. R. 175; Humphrey v. Tayleur, Id. 136; Ball v. Deas, 2 Strob. Eq. (S. C.) 24 (49 Am. Dec. 651); Cameron v. Steves, 9 N. Brunsw. 141; McCord v. Bright, 44 Ind. App. 275 (87 N. E. 654). In the conveyance in question the grantor named as grantee may be considered as mere surplusage.
It is unnecessary, therefore, here to determine whether an estate by the entireties may be created by an instrument such as the one under consideration, though upon this question see Bassett v. Budlong, 77 Mich. 338 (43 N. W. 984, 18 Am. St. Rep. 404); McKee v. Marshall, 5 S. W. 415, 9 Ky. Law Rep. 461; Saxon v. Saxon, 46 Misc. Rep. 202, 93 N. Y. Supp. 191; Schulz v. Brohl, 116 Mich. 603 (74 N. W. 1012).
The case of Pegg v. Pegg, 165 Mich. 228 (130 N. W. 617, 33 L. R. A. [N. S.] 166, Ann. Cas. 1912C, 925), relied upon by complainants, is not controlling.
The decree should be reversed, and a decree entered in this court dismissing the bill of complaint and confirming title to the property in question in defendants.
McAlvay, J., concurred with Brooke, C. J.
Bird, J. I am unable to concur in Mr. Justice Brooke’s conclusion that the entire estate granted vested in Elizabeth Wright upon the death of her husband. An attempt undoubtedly was made to create an estate in entirety, but it failed, because the formalities of the law were not observed in its ere-
ation. Pegg v. Pegg, 165 Mich. 228 (130 N. W; 617, 33 L. R. A. [N. S.] 166, Ann. Cas. 1912C, 925); Cameron v. Steves, 9 N. Brunswick, 141. This being so, the conveyance must be regarded the same as though made to strangers, and not to man and wife. Had William Wright made the deed to himself and his brother, one of two things would have resulted— either the conveyance would have transferred to himself and brother the estate, or it would have transferred to the brother an undivided half of the estate, and left remaining in him the other undivided half. It is not important which would have taken place, as the result would have been the same in either event, namely, each would own an undivided half interest in the estate; and this result would be in accordance with the intent of the grantor to retain an interest in the estate. But it is said that Wright could not convey to himself, and that, if he conveyed the premises to himself and wife, the wife would take the whole. This proposition would be true if the estate conveyed was ‘an estate in entirety or joint tenancy, because in both each is seised of the entire estate and both have the incident of survivorship, but it would not be true if it were an estate in common. The cases cited to this proposition by Mr. Justice Brooke are cases which proceed upon the premise that the estate granted is one of joint tenancy, and it is expressly held in Cameron v. Steves, 9 N. Brunswick, 141, cited by him, that, if the estate granted had been a tenancy in common, it would have resulted in a reservation of an equal share in the grantor. It is there stated:
“Now, as it is clear enough that a man cannot convey an estate to himself by deed, nor is a man capable of taking an estate from himself by deed, the only question would be whether Barnett reserved to himself an equal interest with Cameron and Marshall; and that he did, would have been the result had the deed been a conveyance to the three as -tenants in common, for in that case the deed would have operated to give to Cameron and Marshall severally an undivided third part; but, inasmuch as the deed is given to the three as trustees, by the express words of the Revised Statutes, vol. 1, chap. 117, § 1, it is a joint tenancy.”
Therefore my conclusion is that the deed from. William Wright to Elizabeth Wright and himself did not create an estate in entirety, nor in joint tenancy, but did create an estate in common, which, upon the death of the parties, would descend to their respective heirs, and I think the decree should be so made.
Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred with Bird, J. | [
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Stone, J.
This case is now before us upon the motion of the defendants to reinstate their appeal, upon the ground that we erred in dismissing it. The history of the proceedings and of the steps taken therein is as follows:
Complainant filed his bill of complaint to foreclose a mechanic’s lien for lumber and material furnished by him to defendants Schliess and Bachman and used in the construction of a certain building for the defendants. To this bill the appellants filed a plea, duly verified, setting up in brief that, at the time complainant entered into the contract alleged in the bill, he was doing business under the assumed name of the Hagar Lumber & Coal Company, of which he was the sole proprietor; that under the above business name he entered into this contract, and as such furnished the materials in question; that at the time of entering into this contract, and while he was so conducting his business, complainant had not filed in the office of the clerk of the proper county the certificate required by Act No. 101 of the Public Acts of 1907, entitled “An act to regulate the carrying on of business under an assumed or fictitious name.” The plea properly raised that sole question. Upon this plea complainant took issue by filing a replication, followed by the service of notices of taking proofs in open court and of hearing. The case was heard upon the sole issue thus framed by the trial court. In an opinion filed by the court it was said that “on the hearing there was no attempt to disprove the truth of the plea, and its truth w;as established beyond a doubt.” However, on June 22, 1914, an order was filed and entered, concluding as follows:
“It is hereby ordered that the replication filed by said complainant herein is hereby stricken from the files of said cause, and may be withdrawn by said complainant, and that the said plea of said defendants be, and the same is hereby, overruled, and that the said defendants answer the said bill of complaint within twenty (20) days from the entry and filing of this order, and that, in default thereof, the said bill be taken as confessed by the said defendants for want of. an answer.”
With the record standing in this condition the defendants (except defendants Schliess and Bachman) on August 4, 1914, filed and served notice of appeal to this court. The appeal was perfected in due time, and the case was placed upon the October, 1914, docket for hearing.
A motion was made by complainant to dismiss the appeal, for the reason that the order overruling the plea was not a final order from which an appeal could be legally taken, but that the same was interlocutory and not appealable. On October 12, 1914, we granted the motion to 'dismiss the appeal, making the following memorandum:
“Appeal dismissed, without prejudice to raise the question by answer.”
The appealing defendants now ask us to re-examine the matter for the following reasons:
(1) Because this court overlooked the fact that the defendants had irrevocably abandoned their right to file an answer in said cause, and had in their brief upon said motion declared their sole reliance upon their plea filed in said cause and the issue framed thereon.
(2) Because the court overlooked the fact that said defendants, in waiting for the time granted them by the trial court in which to answer, to elapse, before taking their appeal from the order overruling their plea, were by law barred from answering, and were legally deemed to have elected to abide by their plea.
(3) Because defendants have abandoned their right to answer in said cause, and have elected to abide by their plea and the issues framed thereon in the final disposition of said cause.
In defendants’ brief, in answer to the motion to dismiss, they said:
“In this cause we have irrevocably abandoned our right to answer, electing to stand or fall on the issue framed under the plea, and we respectfully urge that we should not be denied a hearing on this, the only question involved.”
The last clause of subdivision “f” of Chancery Rule 8, relating to pleas to bill, is as follows:
“If the facts are determined for the complainant, the effect shall be the same as though the bill of so much thereof as is covered by the plea was taken pro confesso.”
It is very evident that the plea in this case is to the whole bill. No doubt the proper practice in this case would have been to have set the plea down to be argued, if it was desired to test the legal sufficiency of the plea. Instead of that course being taken, a replication was filed and proofs taken; the trial court finding that the matters alleged in the plea were true in fact, but must have reached the conclusion that they were insufficient in law to defeat the bill.
It is the claim of appellants that this question should be treated as governed by the case of Cross v. Cross, 54 Mich. 115 (19 N. W. 919). That is a very short case. There was a motion to dismiss the appeal. The following is the opinion in full:
“Per Curiam. Bill for divorce. The defendant interposed a plea that he was never married to the complainant. The court, on hearing upon this plea, overruled it, and gave defendant leave to answer within 20 days. Without waiting for the expiration of the 20 days, defendant appealed, and complainant moved to dismiss the appeal on the ground that the order overruling the plea was not a final order.
“The defendant undoubtedly had a right, within 20 days, to elect to abide by his. plea, or to answer, under the permission given him. Had he waited till the expiration of the 20 days without answering, and then appealed, we should have had no doubt of his right to take that course. And we are inclined to hold that when he appeals within the 20 days, he thereby elects to stand by his plea, and not to accept the permission given him to answer; and, in this view, the appeal may be saved.
“Motion denied, without costs.”
It is urged by appellants that the rule above declared has never been changed, but that it has been recognized since by this court. It will be noted that the appealing defendants allowed the 20 days in which they could answer to elapse before claiming their appeal, thus depriving themselves of the right to answer, and permitting the bill to be taken as confessed.
In Cross v. Cross, supra, the only doubt expressed by this court as to appellant’s right to appeal arose from the fact that his appeal was taken within the 20 days granted him in which to answer, but even that was held not to be fatal. But it would seem that the appellants in this case are within the rule suggested by this court as leaving it in “no doubt of his right to take that course.”
The question arose next in Miller v. McLaughlin, 135 Mich. 646 (98 N. W. 390). We have been unable to procure the record in that case, but enough appears in the opinion to distinguish it from the Cross Case. The motion there was to reinstate an appeal, and this court said:
“This case is unlike the case of Cross v. Cross, 54 Mich. 115 [19 N. W. 919], cited by appellants. In that case this court sustained the right of a defend ant to appeal from an order overruling a plea and permitting him to answer, on the ground that, by appealing, ‘he thereby elects to stand by his plea, and not to accept the permission given him to answer.’ Appellants cannot complain that this court did not sustain their appeal on this ground. Notwithstanding their appeal, they distinctly claimed the right to answer, and two of them have since that time, as we are informed by their counsel, exercised that right.
“Motion to reinstate appeal is therefore denied.”-
The question next arose in Wells v. Montcalm Circuit Judge, 141 Mich. 58 (104 N. W. 318, 113 Am. St. Rep. 520). That was an application for a writ of prohibition to restrain the exercise of jurisdiction in a divorce proceeding. This court, in its reasoning why a writ of prohibition might issue, referred to the fact that there had been a plea interposed in the divorce case, and used this language:
“No relief can be obtained by appealing from the order overruling the plea. That order is not appealable. See Miller v. McLaughlin, 135 Mich. 646 [98 N. W. 390].”
It will be noted that the court refers solely to Miller v. McLaughlin, but, whether the circumstances were the same, we are unable to determine; but it may be said that the ruling was in reliance upon that case. The latest expression of this court on this subject is contained in Painter v. Land Co., 178 Mich. 47 (144 N. W. 483). We invite attention to the opinion of Justice Bird in that case and to the following language :
“A hearing on the plea was had before the chancellor, and resulted in the following order being made:
“ ‘It is ordered, adjudged, and decreed that said plea be and the same is hereby overruled, but without prejudice to the defendants to raise by their answer the same defense as is raised by and set forth in said plea.
“ ‘It is further ordered that the defendants have 15 days from and after this date in which to answer said hill of complaint, or take such steps therein, as may he advised. Provided, however, that if an appeal or other method of review he taken from this order to the Supreme Court of the State of Michigan, the defendant shall have 15 days in which to answer said hill after said cause has been determined in said Supreme Court, if defendant takes steps to appeal to the Supreme Court within the time prescribed by statute.’ ”
The defendants, took an appeal to this court. The complainants moved to dismiss the appeal for the following reasons:
“Because the order is not a final order, and therefore is not appealable.”
We further quote the language of the opinion:
“The general rule is that a judgment on a plea in abatement is not final in the sense that it may be reviewed before the final determination of the cause. 2 Cyc. p. 607, and cases cited. It would not be, in any event, unless it affected the merits of the controversy. Miller v. McLaughlin, 135 Mich. 646 (98 N. W. 390); 2 Cyc. p. 587. It is quite apparent that the order made by the trial court has no such effect. The court said, in effect, to the defendant by its order, there may be some merit in your plea, but if there is, I am not going to determine it until I hear the whole case upon its merits. I will overrule it now, but it shall be without prejudice to your raising the same question in your answer. In other words, the court examines the plea, listens to the arguments thereon, and postpones his decision thereof until he hears the whole case on its merits. This practice finds support in Puterbaugh’s Chancery Practice, p. 97, and cases cited. The order as made is in no sense a final order, and is therefore not appealable.”
In our opinion the case of Cross v. Cross, supra, and the instant case are readily distinguished from Miller v. McLaughlin and Painter v. Land Co., supra. In the instant case the plea was to the whole bill and affected the merits of the entire controversy. By the overruling of the plea and the lapse of the time in which, defendants could answer, the bill of complaint was, under the rule, taken as confessed, and in our opinion the defendants are without remedy, unless it be upon their appeal.
Referring to page 97 of Puterbaugh’s Chancery Practice, cited above by Justice Bird, the reason of the rule applied by him in that case is well stated:
“It sometimes happens that, upon the argument of a plea, the court considers that, although so far as then appears, it may be a good defense, yet there may be matters disclosed in the evidence which, supposing the matter pleaded to be strictly true, would avoid it. In such a case the court, in order that it may not preclude the question of allowing the plea, directs that the benefit of it shall be saved to the defendant at the hearing.
“The effect of an order for this purpose is to give the complainant an opportunity of replying and going into evidence without overruling the plea. And, when the benefit of the plea is reserved to the hearing, such parts of the bill as are covered by the plea are not to be answered, and neither party recovers cost until the hearing.”
It is manifest that such was not the view entertained by the trial judge in the instant case, but that, on the other hand, the order of the court below was, in case the defendants did not answer in 20 days, the bill of complaint should be taken as confessed by them. Notwithstanding the language used by this court, as above quoted, in the case of Wells v. Montcalm Circuit Judge, supra, we do not find that it has been the intention of this court to overrule the doctrine of Cross v. Cross, supra. We are of opinion that the rule there stated is. the correct one, and in a case where the plea goes to the entire bill, and, if good, effectively disposes of the entire case, and especially where the defendant has been by the lapse of time, or otherwise, deprived of the right to answer, the order should be treated as a final and appealable order. Furthermore, it may be said that this practice is in harmony with our statute (section 1, Act No. 299, Pub. Acts 1909), permitting appeals from orders overruling general demurrers, and-with the general line of authorities permitting appeals from orders decisive of the entire cause of action.
We think that it should be held that the appeal in this case was improperly dismissed, and that the same should be reinstated, but without costs, and the case will be placed upon the January, 1915, docket for hearing.
It will be so ordered.
McAlvay, C. J., and Brooke, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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] |
Kuhn, J.
The plaintiff and the defendant in June, 1911, entered into a contract, by the terms of which the plaintiff, who was a coke dealer in Detroit, agreed to sell to the defendant, who was a retailer of coke in Flint, 2,000 tons of coke, at the following prices: $2.25 for egg, $2.10 for stove, and $2 for chestnut, per ton, f. o. b. cars at ovens, to be paid for cash on receipt of each car less 1 per cent. After some coke had been shipped, a question arose between the parties as to the price to be paid, and in October of the same year a new agreement was made, by which the plaintiff was to ship 17 cars, in addition to 4 cars then in transit, at the prices fixed in the June contract, and the balance of the 2,000 tons at a price 10 cents per ton for each grade in advance of the old price.
The defendant paid cash on receipt of all cars of coke until December 14, 1911, when the defendant, in payment of a car of stove size coke billed to him by the plaintiff at $60.64, sent the plaintiff a check of $56.04, which was payment for stove coke at the price fixed in the June contract, $2.10, less 1 per cent, discount. The plaintiff returned the check, refusing to accept it, but later admitted that it was- an error of his billing clerk, and .that the amount in defendant’s check was correct. The defendant thereupon refused to make any more payments, and after some correspondence, on January 19, 1912, plaintiff sent defendant a letter, claiming $736.21 due him for coke de livered at the agreed prices, and refusing to deliver any more, unless that amount was paid him. To this defendant replied that he would pay $100 on the arrival of each car of coke, the average cost of which was about $50, the difference between the cost of the car and the payment to apply on the old account until it was balanced; and, if the plaintiff did not accept this proposition, he would purchase the coke at the best price he could and charge the loss to the plaintiff. Plaintiff did not agree to this, and brought suit, which resulted in a verdict directed in his favor in the sum of $826.40.
Attached to defendant’s plea of the general issue was a notice of recoupment, claiming damages in the sum of $2,000 because of plaintiff’s failure to carry out the contract. A motion for a new trial was denied by the court. It is defendant’s claim that the claim of recoupment should have been submitted to the jury. In support of this claim two propositions are relied upon:
“First. That the return of his check sent in payment of an invoice billed at a higher rate than the contract price was a breach of the contract.
“Second. That the contract was entire, and that the mere failure of defendant to pay for one or more installments was not such a breach of the contract as to justify plaintiff in rescinding the contract, and that plaintiff’s subsequent refusal to deliver coke was a breach of the contract for which defendant could recoup damages.”
It is true, as claimed, that plaintiff refused to accept the check, but, when he was satisfied that it was an error, he expressed his willingness to correct it, and in his communication of January 19th, making demand of payment, he made allowance for the error. There is no merit in this contention; as the sending of the check was nothing more than a tender of pay ment, and should have been kept good when the error was corrected. 38 Cyc. p. 161.
The contract between the parties provided for the delivery of 2,000 tons of coke, to be shipped in car load lots, to be paid for on delivery of each car. It is conceded that the defendant received 15 cars of coke which were not paid for, and it was clearly the right of plaintiff to demand payment therefor before shipping any more. The offer of defendant to pay $100 on each new car shipped, of which practically one-half was to apply on the old contract, was an attempt on defendant’s part to impose new conditions on the contract, which, with his refusal to pay, entitled the plaintiff to refuse to make further deliveries of cars.
The contract was severable, as the shipments were to be made in car lots, and to be paid for as received. Williams v. Robb, 104 Mich. 242 (62 N. W. 352); W. K. Henderson Lumber Co. v. Stillwell & Co., 130 Mich. 124 (89 N. W. 718).
Defendants rely upon the cases of West v. Bechtel, 125 Mich. 144 (84 N. W. 69, 51 L. R. A. 791), and Welsh v. Maple Co., 161 Mich. 16 (125 N. W. 692). We think these cases are readily distinguishable from the case now before us. Both of these cases were brought for damages for breach of contract, and in both cases there was no evidence of an intention of the purchaser to abandon the contract. Here we have a refusal to pay for 15 cars of coke, and when the seller refuses to comply with new terms sought to be imposed by the purchaser, the purchaser threatens to abandon the contract. By his continued refusal to pay and trying to impose new terms, he forces the seller to rescind the contract, and then endeavors to cancel his debt by claimed losses, which, if there were any, were brought about by his own misconduct, and seeks thus to profit by his own wrong.
We are of the opinion that the judge was not in error in refusing to submit, to the jury defendant’s claim of recoupment, and the judgment is therefore affirmed.
McAlvay, C. J., and Brooke, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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] |
Christiancy J.:
Does the bill show such title or interest of the complainant in the mortgaged premises as entitles him to the relief asked? This is the only question presented by the demurrer.
As the facts stated in the bill are somewhat numerous and complicated, and a full abstract of the bill and exhibits will accompany the report, I do not deem it necessary to incorporate such abstract in the opinion, but, for the sake of brevity, shall proceed directly to the main question, the bearing of which will be fully rmderstood by reference to the bill.
The bill is essentially a bill for the redemption of certain lands, from the encumbrance of two mortgages (the prior one executed by William A. Howard, Rollin C. Smith and Alfred A. Dwight, to defendant Austin, November 10th, 1853, the latter by Howard, then averred to be owner, to Almet Reed, March 5th, 1855, and assigned to defendant Roswell Reed). The bill claims that these mortgages have been satisfied by complainant, and even over paid, in the manner stated in the bill; but, if any balance shall be found still due, he offers to pay it, and if found to be overpaid, he asks a decree in his favor for the excess. To enforce his right of redemption is, however, the chief end and aim of the bill, and the substantial relief sought. The account asked from Warner, the trustee, must be considered as mainly auxiliary to this relief, as a means of showing what has been paid or should be applied upon the mortgages, and the consequent balance; and the right to call for the account as against Warner, is so far dependent upon, or connected with the right of redemption, as against Austin and Reed, that no useful purposes could be subserved by sustaining the bill as one solely for an account, nor by 'enforcing the account under the present bill, unless a proper case is made for redemption. And every other species of particular relief sought by the bill is auxiliary or incidental to, or dependent upon, the right to redeem.
So far, therefore, as the question raised by the demurrer is involved, the bill may be treated as a bill of redemption only.
If the complainant has shown no title or interest in the premises, he has shown no right to be protected by the redemption; and a court of equity will not lend its aid to enforce his right, as a volunteer, to pay off a mortgage on the lands of another, nor subrogate him to the rights of a mortgagee under a mortgage thus paid by him. But the interest required, as the basis of a right to redeem, need not be the fee subject to the mortgage, or the whole of the mortgagor’s original equity of redemption (except in some .cases of a statute redemption thus limited). -Any person who may have acquired any interest in the premises, legal or equitable, by operation of law or otherwise, in privity of title with the mortgagor, may redeem, and protect such interest in the land: Story Eq. Juris. § 1023. But it must be an interest in the land, and it must be derived in some way, mediate or immediate, from or through, or in the right of the mortgagor; so as, in effect, to constitute a part of the mortgagor’s original equity of redemption. Otherwise it can not be affected -by the mortgage, and needs no redemption.
But whatever may be the title or interest claimed, it •must, in some way, appear on the face of the bill, and the nature and extent of it must be set forth: and, if the bill be not brought by ■ the mortgagor, it must be shown how complainant became entitled to it; unless the •bill distinctly sets up some special matter of estoppel, and expressly relies upon it as such.
When a bill for redemption is brought by the mortgagor himself, both parties claim under the same title: the mortgagee, by the acceptance of the mortgage and his claim under it, and all claiming under him, by the fact of such claim, conclusively admit an interest in the mortgagor sufficient for redemption; as their own claim under the mortgage rests upon such interest, which they cannot claim and deny at the same time (though they might, perhaps, under special circumstances show that interest to be less than the mortgagor claimed to convey by the mortgage). But if the bill be brought by any other person than the mortgagor, the title or interest claimed must be derived, immediately or remotely, through the mort. -gagor, or in some way spring out of his general equity of redemption; and the principles applicable to the statement of a derivative title or interest in pleading must apply to. the statement of such title or interest in the bill.
It is a well settled rule of pleading at common law, ■that a party claiming under a derivative title must show how that title is derived. Thus, in an action by the heir of a lessor, the death of the ancestor and the descent to. the plaintiff, as heir, must be shown; and it must appear how he is heir — whether as son or otherwise — and if he claims by mediate and not immediate descent, he must show the pedigree; for example, if he claim as nephew, he must show how he is nephew. And when the plaintiff' claims as asignee of the reversion by lease and release, or other conveyance, the nature and operative part of the conveyance must be set forth. In an action brought by the assignee of a term, all the mesne assignments down, to himself should be specifically stated; for he being privy to them, shall not be allowed to plead generally that the estate of the lessee of and in the demised premises Game-to him by assignment. But when the action is brought against the assignee, this general form of stating the defendants interest is sufficient; because the plaintiff is a stranger to the defendant’s title: — A Chit. Pl. 402, 396, 397. This is not a technical rule, but is founded in good sense, and essential to the rights of parties. It is upon principle equally applicable in equity as at law, and as well recognized there ; and it applies to all derivative titles, whether of the fee, or of a less estate or interest: —1 Dan. Ch. Pr. 369 to 371; Story Eq. Pl. §258 and note: and see §241. The defendant has a right to be informed of the nature and derivation of the title or interest claimed, that he may, by his answer, admit or deny it, and be prepared to meet it in evidence, or refer the question of its suffi. ciency to the court by demurrer. The court, and not the complainant, is to judge of its sufficiency. If the title or interest be properly set forth, it may appear to the court that, what the complainant claims as constituting such title or interest, constitutes no title or interest at all; and the parties are saved the expense of all further proceedings. The fi cts constituting the complainant’s title are supposed, when the bill shows nothing to the contrary, to be pecu liaiiy within his own knowledge, and the defendant a 'stranger to them. The complainant is not to he supposed to state his case in the way least advantageous to himself; and if the facts constituting his case are such as not •to he susceptible of statement in a manner which would show a valid title or interest, the court may safely take it for granted he will notj be more successful with the proof.
In such cases, therefore, at least when the question'*' arises upon demurrer, any ambiguity or uncertainty of lan.guage should be construed most strongly against the complainant.
To apply these principles to the present case: the only statement on the face of the- bill of complainant’s title or -interest in the mortgaged premises, and that upon which •the bill bases his right to redeem, is in these words: '“And your orator further shows that afterwards” [after the execution of the two mortgages] “on the first day of November, 1856, your orator became and was interested ■in said real estate by contract, and then and there and for a long time thereafter was, and continued to be in actual possession of all of said premises, and that while your orator was so in possession of said premises, claiming and holding the same,” Reed filed his bill, &e.
It would be difficult to contrive a more indefinite statement of an interest than this, or one which would give less information of its nature to the defendants or the court. So far from describing the contract, or stating its purport or substance, so as to allow the court to judge whether it created any interest in the land, ’ it does not -even mention the parties by or between whom it was made, nor a single stipulation it contained. It may have ■been a contract between two parties or ten. If it gave •comjfiainant an interest in the land, it may have been a joint interest with several others who wouldjbe necessary parties to this bill. The contract may have been upon a condition, precedent which, complainant has never performed* or the interest created by it defeasible upon condition suIk sequent, and defeated before the institution of this suit. It may have been such that, by allowing complainant to. redeem after permitting Reed’s foreclosure bill to be taken as confessed, and the rights of others, which he ought to-protect, to be cut off, would operate as a fraud upon them* Or, what is equally probable, though the contract may-have related to the land, and in the opinion of complainant created an interest in real estate, it might, in the opinion of the court, have created no such interest. . If' it be said that these are gratuitous suppositions not proved by any thing found in the bill, I reply that they are not more gratuitous than complainant’s assertion of an abstract interest, under a contract alleged as an abstraction, and. of which neither the nature, the parties, nor a single stipulation is set forth or described in the bill. If a complainant presents and claims under a blank contract, the court or-the opposite party is just as much at liberty to fill the blanks as he is; and there is just as much proof for either of the suppositions above suggested as for complainant’s assertion, that he became interested in the land by contract. It is no where alleged in the bill that he went into possession under it, nor even that he claimed or continued in the possession under it. The statement of complainant’s right in the premises would have been quite as strong-had he relied upon a nakedfpossession, or at least a bare possession with a claim of title. But this would not be. sufficient as a basis for redemption. The possession might be tortious, and both possession and claim might be under-a title not in privity with the mortgagor, but hostile or paramount, and which could not therefore be affected by the mortgage.
But uncertain as the interest of the complainant is, this, mode of stating it raises a clear, if not a conclusive inference that he had not and did not claim to have the fee, or the whole of the mortgagor’s original equity of redemption. If he had, it would have been quite as easy and much more natural to have said so in plain and unambiguous terms than to have taken this circuitous mode of saying what, when said, amounts to nothing of the kind. It could- never occur to counsel to state a fee, or general equity of redemption, in such a formula of words. It is therefore certain that he intended to claim by this language some interest less than the general equity of redemption, and therefore that he did not claim as a purchaser within the ordinary import of the term, but, as I think, some incomplete or inchoate right or interest; some interest, in fact, which did not amount to any definite estate or title known to the law, or it might have been readily described in the bill by its fixed and well defined legal term.
It is therefore, I think, very clear that the matter of the complainant’s interest in the lands, is not, so far as it depends upon the allegation alluded to, well pleaded, and that, upon demurrer, the bill must be treated as if this allegation had been entirely left out. The demurrer admits only facts well pleaded, and must therefore be held to be well taken, unless there be something in the exhibits (for there is not a word in the bill) to supply the defect.
But it is insisted by the counsel for the complainant, that this defect is supplied by the recitals in the exhibits B and C referred to, and prayed to be made a part of the bill, both dated December 28, 185V, the former being, in the language of the bill, a “covenant or declaration of trust” made by complainant to defendant, Warner, and the latter an instrument executed by Reed, by which he refers and assents to the former, and agrees, on certain conditions, to extend the time of payment of his mortgage.
It is evident that neither of these instruments, nor both combined, could have been intended as the contract by means of which he “became interested in said real estate by contract;” because, 1st. they were executed more than a year after the time when he alleges he became thus interested; and secondly, because neither of these instruments purports to give any interest in the lands whatever, and the bill alleges that to Warner to have been made “to protect and secure the rights” of complainant “in said premises.” This, upon any fair construction, must be understood as referring to the right already claimed, the “interest by contract.”
But admitting the bill to have properly averred an interest in the land, and that such interest had been admitted by Warner, Austin or Reed, the language of the instrument would hardly prove such interest or such admission. It merely recites by way of inducement, that “whereas the premises so mortgaged are now claimed by Simeon Smith subject to and after the execution of a certain trust deed” (probably meaning the execution of the trusts) “made by cne William Warner and his wife, to one Thomas B. Rose as trustee” (to which reference is made generally as of record in the county of Sanilac, and then proceeds) “and it being provided in said trust deed to said Rose, that said Simeon Smith and his agents might manage and operate said real estate and the steam saw mill thereon with the fixtures and appurtenances thereto belonging, for the purpose amongst other things, of paying the debt secured by the said” [Austin] “mortgage hereinbefore referred ■to, and as a further security to that end, this instrument is made.”
This recital shows only that complainant claimed an interest, (which by the way is left quite as much in the dark as the aforesaid interest by contract), but the other party admits none; the language would seem to have been thus purposely guarded to avoid an admission, and there is nothing in the instrument, even less if possible than in the bill, to show whether the claim was well or ill founded.
The reference to this trust deed to Rose, so far from showing any interest of complainant, only tends to render still more dubious that interest by contract which was too uncertain before. For, as it states no new interest, this “claim” must be understood as referring back to the contract interest, and this reference shows this “claim” of that uncertain interest, to be subject to this trust deed, which, in its terms, is in most particulars quite as uncertain. No date is given. The deed of trust is said to have been given by Warner; but in what capacity does not appear, nor how the title, if it conveyed any, which last appeared in Howard, in March, 1855, without showing how it got there, now at some indefinite period prior to December 28, 1857, suddenly and for an instant becomes visible ron its transit through Warner to Rose, where it finally disappears; unless complainant has again discovered it emerging from the foreclosure, and finally resting in Ayers and Learned; but without more elements for determining its orbit, its identity can hardly be relied upon. But it is uncertain whether the trust deed from Warner to Rose conveyed or assumed to convey the title subject to the mortgages, though such would be the most natural inference from the language of the reference. Nor does it appear except by inference that the deed may not have been executed prior to the Reed mortgage. This is the last we hear of Rose or his trust. We had only heard of him before as a defendant in the Reed foreclosure.
Was it this trust deed to Rose by means of which complainant “became interested in said real estate by contract ?” If allowed to grope our way by conjecture where all is uncertain, there is much to render this theory probable ; yet it would but faintly illuminate the mist in which that “interest,” and I may say the title generally, seems to be enveloped by the bill and the exhibits. The only terms of the trust deed which are intimated — and the statement from its context has somewhat the semblance of having been inserted as explanatory of the nature of the complainant’s “ claim” — show merely that complain ant was to have the right to “manage and operate said real estate, for the purpose, among other things, of paying the debt secured by said” [Austin] “mortgage.” This alone could hardly constitute an interest in the real estate: the right of a mere volunteer, showing no interest in the land, to pay off the mortgage, could hardly be deemed a Valuable right; and the right to operate or work the property for such a purpose would be equally a negative interest.
Does the reference to exhibit C, asked to be taken as a part of the bill, with all its averments, give any greater aid to the bill, or supjdy the want of a proper averment of title?
This instrument was executed by Reed on the same day as exhibit B, and by way of inducement recites that “whereas, the party of the second part,” [the complainant] “ has become the purchaser of the mortgaged premises and then proceeds to describe the mortgages, the trust instrument to Warn'er, and Reed’s assent to the same, and then sets forth Reed’s agreement to give time of payment of his mortgage on condition that complainant pays the Austin mortgage according to the terms of' the trust instrument to Warner, and that he pay Reed’s mortgage in the manner and by the instalments mentioned.
Supposing it to have been competent for the complainant, by reference, to make a document a part of his bill, in such manner as to give its language the effect of a direct allegation in the bill itself, and to suj>ply the entire absence of any allegation in the bill upon the same point, without showing the effect he intended to claim for it, or the use intended to be made of it, yet giving to this paper the same effect as if its language wTere inserted verbatim in the bill — and this is the greatest effect that can be claimed for it — how will the case then stand? To say nothing of its form as mere recital, the greatest effect it could have would be an averment that he had become the purchaser (the most natural interpretation of which would be that he had acquired the fee subject to the mortgages, or the general equity of redemption of the mortgagors') without showing how, when, or from whom,, or whether by one conveyance or through several, or the date, parties or purport of any instrument or conveyance through which he claimed to have derived it. But we have already seen that the rules applicable to the state-, ment of a derivative title apply to the statement of complainant’s title, as it must be derived from the originad equity of redemption. He must therefore show, upon his bill, how that title is derived; each of the conveyances must be brought specifically to the notice of the opposite party and the court, according to the well settled rules-of equity pleading. Though the nature of the interest is more specific as recited in exhibit C, yet the same rules-of pleading apply to the mode of its acquisition as to the “interest by contract” mentioned in the bill, and these rules need no further explanation here. Whether a man has become a purchaser is -a mixed question of law and fact, as much as, whether he has obtained an interest by contract. The execution and delivery of the instrument is a question of fact; its effect a question of law.
There is still another difficulty to be noticed. This, exhibit C was executed by Reed alone; and however Reed may be affected by it, or Warner, as his trustee, by receiving money under it, I can see no ground on which it could affect Austin, either as matter of pleading or as-evidence, unless it operated to transfer to complainant an interest in the mortgaged premises, in which case, if this-interest were properly alleged in the bill, it might show a basis for complainant’s right to redeem. But complainant does not claim to derive his interest in the land by or through this instrument, nor does it purport to create or-convey an interest, nor is it referred to in the bill for-any such purpose. Both the bill and the exhibit go upon the assumption that he was already interested by some other’ means and in [some other way; though they do not agree as to what that interest was. This instrument, therefore, is entirely outside of any claim of title by which complainant’s interest could have been acquired, and was executed long after he claims to have acquired it. It therefore neither gave any new interest in the land, nor increased or diminished any interest he mky already have had. The admission, therefore, that complainant had become the purchaser, could only operate, even upon Reed (and perhaps Warner) in one of two ways : either as an estoppel, or as mere evidence: and it is entirely unnecessary here to determine which, since in either view, to give it any effect in favor of complainant on demurrer, there must be some allegation in the bill to be supported by it; or, at least, the general nature of the case made by the bill, and the ground upon which the bill has based his claim, must be clearly consistent with it.
The demurrer was, I think, well taken. But as, from other parts of the bill, it seems quite probable complainant may have strong equities, and upon a bill properly drawn might be able to show a sufficient interest in the land, he should be allowed to amend on payment of costs; and he should be allowed to add other parties, should he deem it essential; and the cause should be remitted to the Circuit Court in Chancery for further proceedings.
It not unfrequently happens, that the ablest counsel may be driven by some emergency in the affairs of his client, or some real or supposed necessity for immediate action, to prepare a bill without sufficient opportunity for investigation of the facts or the law, and without access to all the documents which may be material to the case. The defects in the present bill lead to the supposition that such may1 have been the case with the able counsel who •is understood to have prepared it.
The other Justices concurred. | [
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The Court
held that the relators had acquired a vested right to the bounty offered by the act of 1859, upon all the salt manufactured before the act of 1861 took effect, and that they could not be deprived thereof by the last mentioned act. | [
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Christiancy J„:
The plaintiff in error excepts to the conclusion of law drawn by the Circuit Court from the facts found by the Judge.
The finding of facts, so far as this question is involved, must be considered as in the nature of a special verdict, and, to warrant the conclusion of law, must, in this case, contain all the facts and circumstances necessary to constitute the defendant a trespasser.
Having set on the dog, we think the defendant, if liable at all, was liable in this form of action.
But, it is clear, the tplaintiff’s cow was wrongfully on the land of the defendant (below) when the dog was set on for the purpose of driving her off; for, though the act of March 17, 1847, (Comp. L. § 628), prohibits an action for damages done by the coav, it has no other effect; and it leaves the defendant’s rights, in the present action, as they would have stood at common law under like circumstances:— Williams v. Mich. C. R. R. Co. 2 Mich. 259.
The cow being wrongfully on the land, the defendant had a clear right to drive her off by any of the ordinary means to which a prudent man would naturally resort; and for this purpose, Ave think he had a right to set a dog upon her; unless there was something in the size, character or habits of the dog, or in the mode of setting him on or pursuing, which would negative the idea of ordinary care or prudence. And if he exercised this right in good faith, and was not wanting in ordinary care and prudence, we think he could not justly be ¡j held responsible for the injury which might ensue. Such was expressly held by the Supreme Court of Vermont to be the law in Clark v. Adams, 18 Vt. 425, and again in Davis v. Campbell, 23 Vt. 236. In the first cited case, Royce J. says: “I have met with no decided case or other authority, which has denied the right of a party, at common law, to use a dog in driving from his own grounds cattle of another, which were wrongfully there doing damage :” and in favor of this right he cites: 1 Comeyn’s Dig, 411 (citing “R. Lat, 199,” and Mullen v. Fandrye, stated by Aston J. 4 Burr. 2994, from Popham 161, which I think sustains the right). The finding of the court shows nothing of the size or character of the dog, nor of the mode of setting him on, nor any lack of ordinary prudence and caution on the part of the defendant.
It is not necessary to decide what might have been the conclusion, if the finding of facts had shown that the dog had seized or wounded the cow, or thrown her by force; for, though the language of the finding appears, at first view, a little ambiguous, we are satisfied it does not fairly warrant this construction. The language is, “ and the dog then and there chased said cattle, by means whereof ” (as we understand the language, by means of such chasing)” the cow of the plaintiff was thrown by said dog, and fell, breaking or otherwise injuring the shoulder of said plaintiff’s said cow.” This is not the language which would naturally be used, had the cow been seized by the dog and thrown by force.
The facts stated in the finding do not warrant the conclusion of law, that the defendant was a trespasser. The judgment must therefore be reversed, and the plaintiff in error must recover his costs in this court and in the court below, as well as before the Justice.
The other Justices concurred. | [
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] |
Martin Ch. J.:
Whether we regard the assignment of the moifcgage to these plaintiffs as a mortgage of the mortgage, or as. an absolute assignment, extinguishing all the security as to the notes not transfered; whether there can be a mortgage of a mortgage of chattels, or whatever may be the effect of the assignment of the five notes and the chattel mortgage to secure the payment of the debt due these plaintiffs, upon the residue of the notes secured but not assigned,, still, as between these parties, whether the debt to secure which the assignment was made had or had not been paid, and if paid, when paid, were material questions. If paid without foreclosure, the plaintiffs’ title to the goods was extinguished; for by the most liberal construction of the mortgage in their behalf, they could only act as trustees of Beach, the assignor, upon foreclosure and sale; while, if them debt was satisfied without resort to foreclosure, the residuum of the mortgage interest, if any there were, reverted to Beach. In either view, they would have, no title upon which to t maintain this action.
The ruling of the court excluding testimony offered to show such payment, either in cash or by appropriation of sufficient of the mortgaged property before forfeiture, was therefore erroneous, within the rule of Parish v. Fuller and Jewett v. Thurber. See also Rose v. Story, 1 Barr, 190. With these errors, we can not consider the facts submitted, but the judgment must be reversed and a new trial ordered.
The other Justices concurred. | [
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] |
Christiangy J.:
Rogers, the plaintiff below, brought his action of ejectment against Amberg, the defendant below, and claimed title under three several deeds from the Auditor General, on sales for the taxes delinquent for 1854, 1855 and 1856.
The plaintiff introduced these deeds in evidence, and proved that the defendant claimed title to the premises, and rested.
The defendant objected to the introduction, of the deeds, on the ground that the lands which they purported to convey were insufficiently described; which objection was overruled by the court, and the deeds admitted.
The lands are described in the declaration and in the-several deeds, as “the west half of the southwest fractional quarter of section twenty - eight, in town one south of range twelve east, containing fifty acres more or less, in the county of Wayne and State of Michigan.”
The defendant introduced in evidence the official plat of the United States survey, of the entire south west fractional quarter of said section, from which it appeared that said fractional quarter had not been subdivided, and that it contained one hundred acres, of an irregular shape, having six very unequal sides, but in general shape somewhat resembling a triangle, with the acute angle at the east, formed by the center or quarter line of the section on the north, and by the rear of several claim lines on the southeast, and extending east beyond the centre of the section so as to include a portion of what would have constituted a part of the southeast quarter of the section- had the quarter line from, north to south extended beyond the east and west quarter line.
The defendant then introduced the official tract book of the United States land office, by which it appeared that the whole of said southwest fractional quarter was entered by J. L. Leib, as one parcel, containing one hundred acres, date of entry not stated. Here the defendant closed. No assessment roll was introduced by either party, nor was any evidence given tending to show by what description the land has been assessed.
Though several other questions were raised by the bill of exceptions, yet as the counsel for the plaintiff in error chose to waive them on the argument, and expressed the desire to rest the case entirely upon the insufficiency of the description, we shall express no opinion upon the other questions presented by the bill.
The first inquiry is, whether this description was sufficient for the purpose of assessment, and, if not, then secondly, whether it can be held sufficient, under the proof in this case, for the purpose of a sale for taxes. Both questions depend upon the statute.
The twenty - third section of the act of 1853 (Comp. L. § 804), in providing for the description of lands on the assessment roll, enacts; “The description of real estate shall be as follows:” and then proceeds in several distinct subdivivisions to provide for as many distinct classes of cases. We are called upon to notice only the second and third subdivisions (it being admitted that this case does not fall within either of the others). These are: “2. If the tract be the subdivision of a section authorized by the United States for the sale of the public lands, it shall be described by a designation of such subdivision, with the number of the section, township and range. 3. If the tract be less or other than such subdivision, it shall be described by a designation of the number of the lot or tract, or of other lands by which it is bounded.”
¿It is insisted on the part of defendant in error, that this case falls within the second^ subdivision, because, as he insists, it was competent for the Surveyor General, under the acts of Congress of April 24, 1820, and April 5, 1832, thus to have subdivided it into halves by a north and south line. But admitting this could be done (upon which we give no opinion), still as no such subdivision Avas made by the Surveyor General, and if the whole fractional quarter were noAV for sale in the United States land office, it could not, under any laAV of Congress, be sold in halves, or in any portions less than the whole, without being first subdivided by the Surveyor General, I do not think the west half of the fraction can be said to be “the subdivision of a section authorized by the United States for the sale of the public lands,” within the meaning of this subdivision of our statute. Its sale could not be “ authorized by the United States,” until the subdivision had been previously made.
I think, therefore, the case falls clearly within the third subdivision, and having no designation by “number,” it must be described by the designation of “other lands by which it is bounded.” It is urged that this description is a substantial compliance with this third subdivision, because by necessary implication it designates the lands by Avhich it is bounded. This may be said of any description provided for by any of the other subdiAdsions of this section, but I do not think this is a fair interpretation of the statute. One principal object of the statute doubtless was to secure such a description as would enable parties interested readily to ascertain whether their lands Avere taxed or advertised for sale; and the express designation of other lands by which it is bounded would be one of the best means of accomplishing this end; while an implied designation of such other lands Avould have little, if any, such tendency. The Legislature had a clear right to determine what should be a sufficient description for these purposes ; and having thus determined the question, it is not for the court to say that any other mode of description shall be good because it may in their opinion equally accomplish the end. Had the Legislature seen fit to adopt, in the case provided for in this subdivision, the same principle which applies to conveyances between 'individuals, as they have done in the fourth subdivision in reference to town or village plats, and added the words “or in some other way by which it may be known,” the description would, I think, have been sufficient; but having expressly done so in the one class of cases and not in the other, it is, I think, quite clear they intended this liberal rule to apply to the one class and not to the other.
I can see no plausible ground for holding that any of these provisions should be construed as directory merely. If any provision of the act is to be construed as essential and mandatory, it must be the description of the land; the very subject matter to which most of the other provisions are auxiliary. To treat these provisions in relation to description as merely directory would be to annihilate all intelligible distinction between what is directory and what is imperative.
As an original description for assessment, therefore, the description contained in these deeds is insufficient.
But, secondly, does it therefore follow that the description is insufficient for the purpose of a sale for taxes?
If the statute had made no provision by which the description of the land as assessed might be reduced .or altered before sale, then no valid sale could be made by a different description from that by which it was assessed; and the assessment roll not having been given in evidence, we should be compelled to presume the land was assessed by the same description as that contained in the deed. But the statute has expressly provided for such alteration of the description .intermediate the assessment and sale. It has done this by providing (§49 — Comp. L. §831) for the payment to the township treasurer of the tax on “a part of any lot or parcel of land which the tax payer will clearly define,” and for the return of the balance for non-payment: and by section 69 (Gomp. L. §851) a similar provision is made for payment on part of a tract after the return to the Auditor General: and subsequent provision is made for the sale of all lands on which the taxes remain unpaid. And since, from the nature of the case, such payment on part of a tract assessed must be a fact of very frequent occurrence, no safe presumption could, in the nature of things, arise that the land was assessed by the same description as that by which it was sold. The land may have been assessed as the whole south west fractional quarter, which would have been a good assessment, and the east half of the tract may have been paid : and if so, the balance, I think, might be sold by any description by which the land could be clearly identified. The description in these deeds, if strictly construed, defines the land with mathematical certainty. There might perhaps be peculiar cases in which the court might be satisfied such strict construction would defeat the intent of the instrument; but I can see no reason for such apprehension in this case. The description is entirely practicable, and would bound the tract on the east by a north and south line so drawn as to leave one-half in quantity on each side, and would leave both halves in as convenient a shape as any other division into portions of equal quantity.
But it is urged by the plaintiff in error, that there is no evidence that the whole tract was assessed, and after-wards reduced by payment on the other half. It is a sufficient reply to this objection to say that the contrary has not been proved.
The statute (§ 89 — Comp. L. § 871) declares that “the deed shall be prima facie evidence of the regularity of all the proceedings, from the valuation of the land by the assessors to the date of the deed inclusive, and of title in the purchaser.” This provision applies to the deeds for the taxes of 1855 and 1856, and a similar provision — (§124 Comp. L. §906) to the deed for the taxes of 1854, made on sale of the premises as State tax lands.
The effect of these provisions is, I think, to change the burden of proof to the party claiming against the tax deed, and to raise the presumption that every thing has been done which was competent to be done under the statute, to render the sale of the land- described in the deed a valid sale: in other words, if any proceedings might have been had under the statute which would authorize the sale of the land described in the deed, they must, until a reasonable presumption to the contrary has been raised by proof, be presumed to have been taken in accordance with the statute. Such was the view taken of a less forcible presunxption in the act of 1848, by the late Supreme Court, in Lacy v. Davis, 4 Mich. 140, and I can see no ground for doubting its correctness. Indeed I am unable to see how any intelligible effect short of this can be given to the presumption which the statute creates.
There was, I think, no error in the ruling of the court below on this point, and the judgment should be affirmed.
Manning J.:
I have been unable to bring my mind to the conclm sion that- the description in the deed is not good for the purposes both of an assessment, and of a sale where the tax has been paid on a part of an entire description. That it is good for the latter I have no doubt; and that being the case it seems strange it should not also be good for the former.
The whole statute should be liberally construed. It is to raise a revenue for the support of government. This is its primary object; all else is secondary: and it should be construed in such a way as to secure the revenue, and at the same time protect the rights of the tax payer and a purchaser at a tax sale of lands on which the tax has not been 'paid. The principal, if not the only, object of the description of real estate on the assessment roll, is to secure the lien of the State for the tax on the premises assessed. Except to secure such lien, there is no more reason for describing real estate than personal property on the assessment roll. If we give the act a strict construction, looking to the letter only, and not to its spirit, the description of a subdivision of a section, say an eighty or a forty, in any other way than by the United States survey, although it might be by the lands bounding it, with the names of the persons in possession or owning such lands, would not be a good description. I can not think such to have been the intention of the Legislature; or that where the land to be described is less than a forty, say the east or west half of the northwest quarter of the northwest quarter of a section, and it should be assessed by that description, the assessment would be void because it was not described by the land surrounding it, while the former description would, for all practical purposes, be a better description of the"ffcland than the latter, and one that would in nine cases in ten be used in ordinary conveyancing.
The language of the act, I admit, is imperative; but shall is sometimes construed to mean may, and should always be so construed when necessary to give effect to the intention of the law - giver; which intention I think in the present instance was to secure a perfect description of the land, with a view to render the lien; thereon for the tax operative. “A thing which is within the intention of the makers of a statute, is as much within the statute as if it were within the letter of the statute; and a thing which is within the letter of the statute, is not within the statute unless it be within the intention of the makers.” (Thompson Ch. J. in The People v. The Utica Insurance Co. 15 Johns. 380.)
By the construction I give the statute no one is injured; the revenue is secured to the State; and whether the tax payer intended to evade his duty to the State or not, he can not say the description was so imperfect hé did not know his land was advertised to be sold at the tax sale'; and the purchaser is protected, and nothing more, in the right the law gives him and held out to him as an inducement to attend the sale and bid off the property.
I think the judgment should be affirmed.
Campbell J.:
I agree in the’ conclusion of my brother Christiancy, that the description of land in the deeds now in controversy is entirely invalid for purposes of assessment. Whether, as between individuals,- the west half of an irregular frac, tion would be construed as bounded by a north and south line dividing it into portions of equal area, is, I think, doubtful as a general proposition; but in the view which I have taken of the case, is not important, and I express no decided opinion upon it. I think that, as soon as it was shown that no such government division existed, the burden of proof was thrown upon the tax purchaser to explain how a description improper for assessment became proper, if proper at all, when used in a conveyance from the Auditor General.
The tax deed is prima facie evidence- of the regularity of the proceedings under the law, and of title, unless containing on its face proof of illegality. I am disposed to concede that, until the land office proofs showed the contrary, it was fair to presume that the government had made a subdivision answering to that in the deeds, and that there was nothing on the face of the deeds to impeach them. But the land office proofs having shown that no such division had been made, I think their production destroyed the purchaser’s prima facie case, and put him to the necessity of showing a good assessment, and a redemption of such por tions as should bring him within the law, and authorize the conveyance of the remnant of land described. Nad the deed shown on its face that the land conveyed was the balance left unredeemed of a tract properly described, this difficulty would have been obviated, as it would then appear on the face of the deed whether the original description was good, and whether the redemption was of a tract so clearly described as to be within the law. In the absence of any such explanation, I think it more reasonable to presume that the land sold corresponds with the original assessment. The intendments made to help out deeds between individuals, arise out of the desire of the law to enforce mutual contracts according to their intent. But in ex parte proceedings to divest title, those who rely on them must, I think, place themselves where no ambiguity or difficulty can arise, and conform rigidly to the statute. The law can not infer any intention in the land owner to be deprived of his freehold. Where the statute prescribes a description of a certain kind, no other one will suffice, although quite as clear and plain.
I do not know that any especial reliance is placed upon the presumption of title as well as of regularity mentioned in the statute. I do not imagine it would in any way strengthen the other presumptions if it appeared on the face of the deed that the proceedings were irregular, or if it appeared so otherwise. Regular proceedings would give title, and irregular ones could not. It is not a new provision entirely. Under the Revised Statutes of 1838, it was enacted that the Auditor’s deed should “be conclusive evidence of the title: Provided such assessment and all other proceedings in the premises were regular according to the provisions of this title.” R. S. 1838, p. 98. By changing this section and raising a prima facie presumption of regularity, the effect of the Statutes of 1838 would have been greater than that of our present statute. The occasion of the introduction of the phrase as it now stands was the provision for selling lands bid off to the State for taxes. These were originally sold under a separate advertisement, and as a distinct class, requiring several proceedings to complete their disposal. Under our early statutes, it had been held that when a deed was made by a statute “ evidence that the sale was regular, according to the provisions of this act," it proved nothing but the treasurer’s action immediately connected with the sale, and was no evidence that the anterior steps were regular: Scott v. Detroit Young Men's Society, 1 Doug. Mich. 119; Latimer v. Lovett, 2 Ibid. 204; Ives v. Kimball, 1 Mich. 308. Upon sales of State tax lands it is expressly provided that the deed shah convey “ all the right, title and interest of the State in and to said state tax lands, acquired by virtue of the original sale or sales to the State" A deed of such an interest, if only made evidence of the correctness of all the proceedings to its date, would probably, under those decisions, have been no evidence of any proceedings except those under the special provisions concerning State tax lands, which originally formed no part of the general tax law. A provision making the conveyance prima facie evidence of title, would therefore have, in such cases, simply the effect of placing these sales on the same footing with ordinary tax sales, which was undoubtedly the design of the Legislature when that provision was adopted. It was not until 1858 that, in drawing up a new law covering the whole ground, the reference to presumption of “title’’ was made substantially the same in regard to ordinary and state tax land conveyances. L. 1853, pp. 151, 159. Compare R. S. of 1846, pp. 114, 115, 118; L. of 1843, pp. 58, 80; L. 1845, p. 81; L. 1846, pp. 13, 14, 88.
It seems to me that under the somewhat strict rules which are justly applied to all proceedings of this character, no presumption of regularity ,; can be made to reach any of the steps not directly connected with the regular course of action in the ordinary line of duty of the State officers, unless some reference is made to them in the deed. And a reference to the various provisions in regard to redemptions, to my mind strengthens this view. And in referring to them, it must be borne in mind, that any redemption of less than a whole parcel, unless the interest redeemed is an undivided one, is made upon principles not consistent with the just rules of taxation under the Constitution. The east half of a parcel assessed may contain valuable buildings and improvements, and the west half may be waste land, so that the basis of nine-tenths of the tax is in the value of the former. By paying one half of the tax, the owner of the improved portion shifts his own burdens upon his neighbor. Such cases may often arise, and have arisen heretofore. Presumptions of an entire assessment, and of the redemption of a specific portion, made to sustain a defective description, are not, I think, to be made without the clearest and most unequivocal legislative requirement.
The earliest partial redemption permitted is when the roll is in the hands of the township treasurer. He is required to receive the taxes on a part of a lot which the tax payer will clearly define, and if the tax on the rest is not paid, he is to “enter a specification thereof in his return to the county treasurer.” — 1 Comp. L. §831. He is required to make in this return a full and perfect description of the premises from his tax roll; and it must be compared by the county treasurer with the original tax roll, and be found a “true transcript from the same:” §§833, 834. I do not see how this is complied with, unless the original description is given with a specification of the “clearly defined” part which is redeemed. A sale by such a description would leave open no door for mistake. Any other definition of the remainder would be, to say the least, extremely liable to error in any but perfect and square government subdivisions.
This view impresses me the more strongly, because so long as the land remains returned for taxes and unsold, in the Auditor’s office, no part less than the entire tract can be redeemed at all, unless it be an undivided interest; §881. The terms used in allowing a redemption after but not before sale, of less than the whole parcel, are “ any part or interest in the same;” and the portion of the whole sum to be paid is “ sueh proportion thereof as the part or interest redeemed shall amount to§ 873. Section 907 contains a similar provision concerning tax lands bid off by the State, allowing the redemption of any part or interest “ clearly defined.” After sale, therefore, probably a defined part may be redeemed.
,. Whatever may have been the reason which induced the Legislature to require a particular kind of description for purposes of assessment, it seems to me the same occasion exists for preserving similar rules in regard to redemptions. And in 'eases of irregular parcels, it would often be unsafe for the state authorities to undertake to make a new description of a residuary portion without showing the amount originally assessed. In regard to undivided interests, it is necessary to show what interest is redeemed, and to whom it belongs, “that it may be excepted in case of the sale for the tax on the remainder:” §831. Where the deed does not show a redemption, and does not cover a full assessable description, I see no good reason for raising any presumptions concerning what, if true, is the act of a private person, and not within the discretion of any public officer, and in which the latter is merely an agent to receive money which may be lawfully tendered him by any one who chooses to redeem. The law which now requires some show of ownership in the redeemed tract, and that it is confined to the redeemed portion, was not in force when these transactions took place. The right to redeem was, before the statute of 1858, subject to no such condition:— L. 1858, p. 186. It was a private, not an official act, and can not, I think, without more specific language, be classed among the proceedings concerning which the law can raise any presumption of correctness.
I think the court erred in not requiring proof of a valid assessment, after the description had been shown to be incorrect.
Judgment affirmed. | [
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Campbell J.:
The bill in this case was filed to restrain the foreclosure of a mortgage, given by the defendant, Ralph Sackett, to the defendant, Gilbert Hathaway, February 21, 1854, to secure the payment, with interest, of three notes of $600 each, payable in one, two and three years from date; or to redeem should the mortgage be established. Bassett is owner of the fee, and the state of the title is as follows: On February 21, 1854, the title of record to two - thirds of the property was in Gilbert Hathaway, who also held a mortgage on the remainder, from William Jenny and Edwin Jenny. On that day, the two Jennys gave a warranty deed of the whole to Ralph Sackett, who executed on the same day, to Gilbert Hathaway, the mortgage above referred to. March 15, 1854, Gilbert Hathaway conveyed and released to Ralph Sackett, all his “right, title, interest, claim and demand, both at law and in equity, whether by deed, mortgage or otherwise, and as well in possession as in expectancy,” to the premises, reserving certain rights in a railroad for a period of three years.
June 2, 1855, an agreement was made between Ralph Sackett and Gilbert Hathaway, which was acknowledged, and recorded by itself, June V, 1855, and is as follows:
“This memorandum, made this second day of June, a, d. 1855, between Gilbert Hathaway and Ralph Sackett, the parties to the within mortgage, witnesseth; that whereas the said Hathaway released and conveyed to said Sackett his title to the within premises, except always reserving the privilege of transporting on and over the railroad any kind of lumber, material, &c., and to secure a part of the purchase money the said Sackett executed his notes and the within mortgage; and whereas the said notes and the within mortgage are still in full force, and remaining wholly unpaid; and whereas, for the convenience and at the request of said Sackett, said Hathaway has agreed to extend the time for the payment of said notes and mortgage, as hereinafter stated:
Now, therefore, the said Sackett hereby confirms the ■said mortgage to the said Hathaway and his heirs and assigns forever.
And the said Hathaway, on his part, extends the time for the payment of the sums secured by said notes and mortgage, as follows: The note falling due February 27, 1855, for six hundred dollars and interest, is hereby extended to July (15) fifteen, 1855, and the other two notes of six hundred dollars each and interest, are to be paid as stated in the within mortgage.
In witness whereof the said parties have hereunto affixed their hands and seals. ■
Gilbert Hathaway, [/S'eal.]
Ralph Sackett. \Seah~\"
July 19, 1855, Ralph Sackett conveyed the premises to. William M. Campbell, by quit claim deed, which was. recorded December 11, 1855. December 12, 1855, Gilbert Hathaway filed his bill against Ralph Sackett to foreclose the mortgage of February 27, 1854. No one else was made a party, and no notice of lis pendens is proven. In September, 1856, Bassett purchased from Campbell, There is no proof of notice to him of any thing connected with the title, except so far as the records operated as notice.
The defense claimed is, that the release or conveyance from Hathaway to Ralph Sackett was a mistake, and was designed to operate only to release the mortgage against the Jennys, which is expressly referred to in it; and that by the agreement of June, 1855, Sackett reinstated the original mortgage to remedy the mistake.
There can be no doubt that the conveyance, from Gilbert Hathaway to Sackett, discharged the mortgage. And the questions in this case may therefore be narrowed down to the inquiry: Jñrst, whether it was broader than intended; Second, whether the agreement of June, 1855, restored the mortgage or intended to do so; and Third, whether Bassett is affected with notice of such intent.
This renders it necessary to examine into the admissibility of the evidence of Gilbert Hathaway and Ralph Sackett, two of the defendants, who were examined, under objection, as not interested in the matters concerning which they testify.
Gilbert Hathaway is the principal defendant, who claims to own the mortgage in controversy. There is no part of the case in which he is not interested, and his evidence is clearly incompetent.
Ralph Sackett conveyed the premises by deed without covenants. The object of his testimony is to subject the land to the payment of his personal liabilities. His interest is equally manifest, and his evidence must also be excluded,,
After throwing out the depositions of Gilbert Hathaway and Ralph Sackett, as the defendants have not examined ■the Jennys, or any other witnesses, we are left entirely without evidence concerning the circumstances attending the transactions of February and March, 1854. We are therefore remitted to the other facts in the case, and are called upon to consider the agreement of June, 1855, whereby it is claimed the mortgage to Gilbert Hathaway was renewed, and remains yet in force.
To make such a renewal effectual, it was requisite, First, that Gilbert Hathaway should then own the securities; and Second, that the agreement should properly refer to and identify them; and Third, that he still owns them, and that they are unpaid.
It was held in Bailey v. Gould, Walk. Ch. 478, that unless the note accompanying a mortgage is produced or accounted for, it must be presumed paid as against the party setting up the mortgage. This is in accordance with well settled principles. In the case now before us, the notes are not produced, and we are entirely without evidence either of their existence or ownership at the present time, or when the agreement was made between Sackett and Hathaway, in June, 1855.
The agreement purports to he endorsed on a mortgage. But as the mortgage is not produced, we have no evidence that it was endorsed on the mortgage of February 27, 1855, or on any mortgage at all. The registry is not connected in any way with that of the mortgage, and does not refer to it, and is precisely the same as it would be if the agreement were upon a separate paper. We have no right to infer from a record what is not necessarily to be drawn from it. The record of an instrument entitled by law to be recorded, is prima facie evidence of its execution, but is not prima facie evidence that it is endorsed upon any instrument not recorded with it; for that is un extrinsic fact which is not within the purview of the registry laws. Whether such an instrument as this agreement, is entitled to record at all, as a lien or conveyance, is a question we do not deem it necessary to discuss. Had the original mortgage been produced with this agreement upon it, and had they been recorded together, the question of the effect of such registry as notice would become important.
The defense set up must fail as entirely unsupported by proof. The decree below must be reversed, with costs, and a decree must be entered in favor of the complainant, perpetually enjoining defendants from proceeding to enforce the mortgage securities, in accordance with the prayer of the bill.
The other Justices concurred. | [
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] |
Reid, J.
Petitioner Blanche I. Lonnt on August 24, 1950, petitioned the circuit court for leave to intervene (as additional- principal defendant), after judgment had been entered on August 9, 1950, against her son, Herbert Gr. Lount, and Leo Gr. Andries, as principal defendants, and the Detroit Bank, as garnishee defendant, and after the garnishee defendant had paid the judgment, August 15, 1950.
The trial court by its order filed March 28, 1951, denied the petition of Blanche I. Lount to intervene' “with prejudice to the right of petitioner ever again to bring suit at law or in equity or otherwise, against either plaintiff or garnishee defendant concerning any of the matters set forth in the petition for leave to intervene.”
Plaintiffs had taken judgment against principal defendants, Herbert Gr. Lount and Leo Gr. Andries, in common pleas court in the sum of $1,358.50, and later transcribed that judgment to the circuit court. On July 12, 1950, plaintiffs procured the issuance of a writ of garnishment to the Detroit Bank as garnishee of Herbert Gr. Lount and Leo G-. Andries, and the writ of garnishment was served on the bank on the same date. The bank filed disclosure on July 27, 1950, the material averments of which were that the bank “was not indebted to Herbert Gr. Lount and/or Leo Gr. Andries in any amount whatever, but was indebted to Herbert Gr. Lount or Blanche I. Lount upon a joint account payable to either or the survivor in the amount of $2,445.67.” The disclosure further stated that the garnishee “does not admit, however, that all or any part of snch indebtedness is dne or owing to the said principal defendent Herbert G. Lount.”
Plaintiffs moved for judgment against the bank as garnishee in the sum of $1,222.83, this amount being one-half of the amount disclosed as owing on the joint account and plaintiffs alleging as the reason for their motion the fact that “according to law the defendant Herbert Gf. Lount, has a one-half interest in the aforesaid bank account * * * which is subject to the claims of his creditors.” The circuit court granted plaintiffs’ motion on August 9, 1950, and entered judgment on the court sheet for plaintiffs against the bank as garnishee in the sum of $1,206.68, with costs to the garnishee in the sum of $16.15, or a total of $1,222.83. The court clerk sent notice of the entry of this judgment to the garnishee on August 12,1950, and on August 15, 1950, the bank paid the full amount of the judgment to plaintiffs. On August 24, 1950, Blanche I. Lount filed a petition for leave to intervene in the cause, alleging that “she is the sole owner of the funds in said joint bank account, all of the moneys being deposited therein being her own money and no part thereof having been contributed or paid in by said Herbert Gf. Lount,” and that “your petitioner has not been impleaded in said proceeding, pursuant to the statute in such case made and provided.”
The question for our decision is whether the petition of Blanche I. Lount should be granted or denied.
As above noted, the disclosure of the bank, garnishee defendant, on July 27,1950, was that the bank “was indebted to Herbert G. Lount or Blanche I. Lount upon a joint account payable to either or the survivor in the amount of $2,445.67.” There was nothing about the bank deposit nor any statement filed with the bank concerning the nature of the deposit to show that Blanche I. Lount was the owner of the entire deposit, which ownership she claims in her petition.
The trial court in his opinion cited and relied upon the case of Murphy v. Michigan Trust Co., 221 Mich 243, in which case plaintiffs were husband and wife and deposited money in the bank in their joint names and had such savings designated in their deposit book as payable to James E. Murphy and Gertrude Murphy, either or the survivor. At the time the bank closed its doors, Mr. and Mrs. Murphy had $726.62 in such deposit. They had also deposited in their joint names,’ $1,000, and received a certificate of deposit payable to either or the survivor. The testimony further established that the major part of the deposits represented the individuals means of Mrs. Murphy. We say, on page 246:
“We must hold the deposits constituted plaintiffs joint tenants. As joint tenants the ownership of Mr. Murphy is severable for the purpose of meeting the demands of creditors.
“In the absence of proof establishing their contributions toward the deposits the presumption prevails that plaintiffs were equal contributors thereto and, therefore, equal owners. * * * The joint claim should have been allowed and the right of Mrs. Murphy therein determined as one-half thereof.”
The trial court in the case at bar found in part as follows:
“The court takes judicial notice of the fact, as referred to by the garnishee, that the thousands of .garnishments which have been filed in this court against joint bank accounts over past years have all been handled in the way this garnishment was handled. This custom and practice has been so general and widespread among all the banks in this jurisdiction that I think petitioner must be charged with notice of it.” Citing .25 CJS, p 86.
We cannot overlook the custom of which the court thus took judicial notice.
The pertinent portion of the statute governing the deposit in this case is CL 1948, § 487.703 (Stat Ann § 23.303), which is as follows :
“When a deposit shall he made, in any hank by any person in the name of such depositor or any other person, and in form to be paid to either or the survivor of them, such deposits thereupon and any additions thereto, made by either of such persons, upon the making thereof, shall become the property of such persons as joint tenants, and the same together with all interest thereon, shall be held for the exclusive use of the persons so named and may be paid to either during the lifetime of both, or to the survivor after the death of one of them, and such payment and the receipt or acquittance of the same to whom such payment is made shall be a valid and sufficient release and discharge to said banking institution for all payments made on account of such deposits prior to the receipt by said bank of notice in writing not to pay such deposit in accordance with the terms thereof.
“When a deposit has been made, or shall hereafter be made, in any banking institution transacting business in this State, in the names of 2 or more persons, payable to either or the survivor or survivors, such deposit or any part thereof or any interest or dividend thereon and any additions thereto, made by any 1 of the said persons, shall become the property of such persons as joint tenants, and the same shall be held for the exclusive use of the persons so named and may be paid to any 1 of said persons during the lifetime of said persons or to the survivor or survivors after the death of 1 of them, and such payment and the receipt or acquittance of the same to whom such payment is made shall be a valid and sufficient release and discharge to said banking institution for all payments made on account of such deposits prior to the receipt by said bank of notice in writing not to pay such deposit in accordance with the terms thereof.
“The making of the deposit in such form shall, in the absence of fraud or undue influence, be prima facie evidence, in any action or proceeding, to which either such banking institution or surviving depositor or depositors is a party, of the intention of such depositors to vest title to such deposit and the additions thereto in such survivor or survivors.”
. As we have before noted, the bank did not receive prior to making its disclosure nor prior to payment of judgment founded on the disclosure, any “notice in writing not to pay such deposit in accordance with the terms thereof.”
The statute of Michigan governing the petition is CL 1948, § 612.11 (Stat Ann § 27.663), the pertinent portion of which is as follows:
“In an action either at law, or in equity, anyone claiming an interest in the litigation may, at any time, be permitted to assert his right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding.”
We do not determine whether or not the sought-for intervention in the instant case is subordinate to or in recognition of the propriety of the main proceeding.
Petitioner Blanche I. Lount relies upon CL 1948, § 628.28 (Stat Ann § 27.1882), the pertinent portion of which is as follows:
“When the answer of the garnishee shall declare that any other person'than the defendant claims the indebtedness or property in his hands, or any part thereof, and the name and residence of such claimant, the court may, on motion, order that such claimant be interpleaded as a defendant to the garnishee action, and that notice thereof, setting forth the fact that a copy of such order in such form as the court shall direct, be served upon him; and after snch service shall have been made, the garnishee may pay or deliver snch indebtedness or property to the clerk of the court, and have a receipt thereof, which shall be a complete discharge from all liability to any party for the amount so paid or the property so delivered. Such notice shall be served within or without this State by any competent person, and proof of the fact of such service shall be made by affidavit and filed with the clerk of the court where such garnishee proceedings are commenced. If such personal service cannot be had, then such service shall be made as the court shall direct. Upon such service being made and proof thereof being filed in the cause, such claimant shall be deemed a defendant to the garnishee action and within 20 days' shall answer, setting forth his claim or any defense which the garnishee might have made. In case of default, judgment may be rendered, which shall conclude any claim on the part of such defendant.” j
For the purposes of the instant case, we consider that CL 1948, § 628.28 does not apply to the present proceedings because the bank’s disclosure did not “declare that any other person than the defendant claims the indebtedness or property in his hands, or any part thereof,” and plaintiffs sought only to hold the undivided half of Herbert Gr. Lount in the deposit. Further, it is apparent that intervention under CL 1948, § 628.28 is contemplated to be had, if at all, before judgment, because the “claimant” under CL 1948, § 628.28 (which would be the petitioner in the instant case) is to be treated as a defendant and directed to set forth his (or her) claim or defense, and the statute proceeds to say, “In case of default, judgment may be rendered, which shall conclude any claim on the part of such defendant,” thus indicating that the permissible intervention is to take place before judgment. In any event, the 2 statutes, CL 1948, § 487.703 and CL 1948, § 628.28 must be read together and when so read, the presumption still remains under CL 1948, § 487.703 of an equal ownership of the deposit in question herein. Moreover, in order to set in operation CL 1948, § 628.28, Blanche I. Lount would have been required to serve on the bank the written notice provided for by CL 1948, § 487.703. This she did not do, consequently Blanche I. Lount made no claim to the half of the deposit and CL 1948, § 628.28 does not apply; petitioner is not accorded by reason of CL 1948, § 628.28, any ground for her petition.
Petitioner relies upon the case of Peoples Lumber Co. v. Strehlke, 260 Mich 513, which was a case where intervention was permitted before judgment. It must be very obvious that a great distinction must be observed between an intervention occurring before judgment is rendered as in the Peoples Lumber Company Case, supra, and another case in which intervention is sought, as in the instant case, after judgment has been rendered and has been paid.
“Provision of statute authorizing intervention of parties claiming an interest in the litigation ‘at any time’ relates to time actions are pending in court (CL 1929, §14019 [CL 1948, §612.11 (Stat Ann § 27.663) ]).” Hettche v. Oakland Circuit Judge (syllabus 1), 290 Mich 453.
We conclude petitioner Blanche I. Loiint was without right to intervene after the judgment against the garnishee defendant had been rendered and paid. It is of interest to note the adverse disposition made by us in Meier v. Blair, 287 Mich 13, 27, on a claim of a party who sought interpleader after judgment.
We consider that the case of Murphy v. Michigan Trust Co., supra, controls the instant case. Under the reasoning in the Murphy Case, by her deposit, petitioner Blanche I. Lount in effect said to the bank that the bank should consider that she was the owner of half of the deposit and her son the owner of the other half. Relying on that implied statement, the bank suffered and paid the judgment without appeal. Petitioner did not change the form and nature of her statement as to the ownership until after the judgment had not only been rendered but also had been paid. Plaintiff simply took the chance of the deposit being garnisheed by her son’s creditors. Petitioner is now estopped to retract her implied stateT ment of the ownership, and estopped to claim the entire deposit was and in law still is hers.
In Detroit Savings Bank v. Loveland (a suit at law), 168 Mich 163, we say at page 172:
“Estoppel is a bar which precludes a person from denying the truth of a fact which has in contemplation of law become settled by the act of the party himself, express or implied. If one’s conduct induces another to believe in the existence of certain facts, and the other acts thereon to his prejudice', the former is estopped to deny that the state of facts does in truth exist.”
See, also, Fleckenstein v. Citizens’ Mutual Insurance Co. (an action in assumpsit), 326 Mich 591 (syllabus 9).
The order dismissing the petition of Blanche I. Lount is affirmed. Costs to plaintiffs and to gar- • nishee defendant.
North, C. J., and Dethmers, Butzel, Carr, Bushnell, Sharpe, and Boyles, JJ., concurred. | [
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] |
Sharpe, J.
Plaintiff, Lee Roy Willard, on or about January 15, 1950, entered into an agreement with defendant, Dean Gaston, doing business as Tri-State Roofers, to solicit business for defendant. Under the agreement plaintiff was to solicit the business, estimating the cost of the jobs according to the schedule, and set a contract price for each job. Defendant was to complete the job, deducting the cost of materials used on each job, adding a profit of 20% above cost of labor and materials, and the balance to be paid plaintiff for soliciting the job.
Plaintiff continued his employment with defendant until on or about May 26, 1950. During the course of his employment plaintiff secured a number of profitable jobs for building and repairing buildings. During this period plaintiff had a drawing account of $50 weekly. Under the contract plaintiff did not collect any of the payments after the several jobs were completed. All disbursements for labor and materials were made by defendant; all records, re- . ceipts, invoices and contracts were at all times in the possession of defendant. Prior to the commencement of the present suit plaintiff demanded an accounting from defendant, and subsequently filed a petition for discovery and continuance, in which it is alleged:
“2. That the general nature, object and purpose of said action is for an accounting between the parties on account of certain building contracts obtained by the plaintiff and carried out by the defendant. That by reason of the fact that all material and labor were purchased by the defendant, it is necessary to check his files to ascertain the veracity of his accounts for material and labor purchased. That a total of 21 contracts were so let ranging from $165 to $2,160. That these contracts range in places from Holly and Pontiac, Michigan, north of Lansing, Michigan, and south of New Hudson, Michigan. That supplies were alleged to have been purchased from nearly all suppliers of building materials in the entire area described.
“3. That under agreement of counsel, 10 of the contract files of the defendant were shown to the plaintiff and the 11 other contract files among which are the following:
Harold Van Wagoner ............... $ 230
D. B. Miller ...................... 550
Lubert Warner ..................... 300
Grace Nichols ...................... 615
Prank Bradley...................... 350
Ervin Whittaker.................... 495
Albert Boulton ..................... 530
Lloyd Kleinsmith ................... 1,490
William Gibson.....-................ 1,940
Agnes Johns........................ 165
Archie Willard ..................... 580
have not been shown to the plaintiff, although the defendant has often been requested so to do, and the defendant has informed the plaintiff that many of the said 11 contract files were on file in the municipal court for the city of Jackson, Michigan, as exhibits, -but that inquiry at such court and inspection of the court files by the plaintiff and the plaintiff’s attorney, Robert Crary, Jr:, has revealed no traces of them, and plaintiff is informed and verily believes the fact to be that said contract files are all in the possession of the defendant and that the plaintiff saw the Gibson file in the possession of the defendant shortly after the hearing in municipal court.
“4. That the defendant has likewise refused to produce any actual receipts for the moneys paid for materials on any of the 21 contracts, but has shown only loading certificates not indicating prices or payments.
“5. That such files and receipts are of material importance in evaluating and appraising the same and the rights of the parties' are in the possession and control of the defendant, one of the parties herein, discovery of which is required by petitioner in order to enable him to prepare for trial of said cause.
“6. That the plaintiff and the plaintiff’s attorney, acting in the best information available have made diligent effort to check on the accounts so far shown to them but due to the multiplicity of the same and the ubiquitous character of the same, have been unable to accomplish a thorough audit up to this time, but that if given additional time such an audit may be made, upon discovery as above prayed for. The plaintiff has contacted numerous persons to whom contracts were sold and including Frank Walz and Frank Bradley, and has also contacted numerous suppliers including, the Jackson Electric and the R. M. Stone Lumber Company, and others, but is unable to safely proceed to trial unless the files of the 21 contracts are made available to the plaintiff so that the supplies, and materials may be cross checked between them.”
. Defendant filed an answer to plaintiff’s petition for continuance and discovery, and alleges:
“2. In answer to the allegations in paragraph #2, defendant denies that it is necessary to check the defendant’s files to ascertain the veracity of the defendant’s accounts for material and labor purchased, and shows that for each job that the plaintiff obtained he was given a statement showing the items of expense together with the amount of the profit. Further answering said paragraph, the defendant shows that each broker had his own file, and after each deal was completed, a copy of the complete deal was placed in the broker’s file and a check on the brokerage earned was also placed in said file, and that this practice was followed in the dealings between the plaintiff and the defendant. Further answering said paragraph, the defendant admits that he purchased materials and supplies from wholesalers and suppliers in various places.
“3. In answer to the allegations in paragraph #3, defendant shows that during the trial of a.certain municipal court case, wherein the plaintiff herein was the defendant and the defendant herein was the plaintiff, the judge suggested that the parties go over the files involved and defendant shows that the parties hereto went to the office of the defendant herein where the files mentioned in paragraph #3 were shown to the plaintiff herein and said plaintiff admitted the accuracy thereof and offered to pay his indebtedness at the rate of $5 per month. Defendant further shows that said municipal court case was adjourned for 1 week on the statement of the plaintiff herein that he could obtain information to support his setoff or whatever other claim he had against the plaintiff in said cause.
“4. In answer to the allegations in paragraph #4, defendant shows that he has no receipts for moneys paid for materials on any of the 21 contracts, but he further shows that the invoices for said materials have been shown to the plaintiff, and as a matter of fact, in addition thereto, his ledger sheets have been made available to the plaintiff for examination.
■ “5. In answer to the allegations in paragraph #5, defendant denies that he has any receipts and he denies that the files are of material importance in evaluating’ and appraising the same, and he further shows that after each job which plaintiff sold to the defendant, a statement of the materials and expenses of the job was made up by defendant’s bookkeeper and was available to the plaintiff, that the plaintiff had full opportunity for examination thereof, and that a check was paid to the plaintiff accordingly. Defendant further shows that the plaintiff apparently has no books, papers or other documents relating to the deals which he sold to the defendant, and defendant shows on information and belief that the motion is purely a ‘fishing expedition’ and made only for the purpose of delay.”
The trial court granted plaintiff a continuance but denied his petition for discovery, and in an opinion stated:
“Now the plaintiff petitions for an order of discovery as to books, papers, and documents in the ■possession of the defendant, for the purpose of preparing for trial, under the provisions of Court Rule No 40 (1945), and asks for a continuance as well. Plaintiff makes no showing that the books, papers, and documents requested cannot be obtained by subpoena duces tecum. .
“Under Court Rule No 40 (1945), the granting of discovery is discretionary with the court. While the tendency has been to become liberal in granting discovery for the purpose of enabling the plaintiff or defendant to plead or answer, it is apparent that the courts have not been so lenient where discovery is sought to facilitate preparation for trial, unless an affirmative showing is made that the books, papers, and documents sought cannot be obtained by subpoena duces tecum.”
Under Court Rule No 40 (1945), a party seeking production and discovery of documents in order to prepare for trial must allege that the information cannot be obtained at the trial of the case by subpoena duces tecum (see Gemsa v. Dorner, 256 Mich 195; Spelman v. Addison, 300 Mich 690).
In the case at bar plaintiff’s petition for discovery is for the purpose of enabling him to prepare for trial, and is filed under the provisions of section 1 (d) of Court Bule No 40 (1945). Plaintiff’s petition alleges that all materials were purchased by defendant and all labor hired and paid by defendant, that it is necessary to check his files in order to determine the accuracy of his accounts, and that it will be necessary to contact the suppliers who furnished defendant materials for the jobs completed. In order that plaintiff may have a correct accounting it is evidently necessary for him to check the amount of labor and materials that went into each job. His petition alleges that because of defendant’s failure to produce receipt for material purchased, it is necessary to find out the parties from whom defendant purchased materials and examine their records in order to determine the accuracy of defendant’s records. He also urges that a subpoena duces tecum would'not give him the necessary information in order to prepare his case for trial. While the granting of discovery is discretionary with the court, we think plaintiff has made a sufficient showing of inaccurate records kept by defendant and the need to acquire the names of parties from whom defendant purchased supplies to warrant the granting of his petition.
The decree is reversed and remanded to the circuit court of Jackson county for the granting of plaintiff’s petition for discovery. Plaintiff may recover costs.
North, C. J., and Dethmers, Btitzel, Carr, Btjshnell, Boyles, and Beid, JJ., concurred. | [
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Boyles, J.
Plaintiff filed this bill for specific performance of an oral agreement by the defendant to sell him certain property in Lockport township, St. Joseph county, and also sought a temporary injunction restraining the defendant and a certain deputy sheriff from attempting to enforce a writ of restitution to remove the plaintiff from the premises. Prom a decree for the plaintiff, the defendant appeals.
To support his claim, the plaintiff offered in evidence a written receipt signed by the defendant, as follows :
“March 4,1931.
“Received of J. C. Ranck $450 on house and lot. Balance due $250.
(Signed) “Lulu Springer.”
Át the time of trial plaintiff was past 86 years of age, the uncle of the defendant who was 74. The. property in question was in a dilapidated condition and consisted of an old house, a garage, a little oil house, and a chicken house, all assessed for $300. Plaintiff, about the time he bought the place, was a farm laborer affectionately known as “Cappie” who later became unable to work. Before he bought the place it was owned by the defendant. Plaintiff went into possession of the premises with 2 sisters, one of whom was the defendant’s mother who lived there with him from that time for about 11 years until she was taken to the Kalamazoo State hospital in 1942. The other sister was still living with the plaintiff at the time of trial. Plaintiff built a hen house, roofed part of the house, and had paid all the taxes on the propei’ty since 1931. The defendant herself kept her clothes and other personal belongings there and lived there most of the time. Plaintiff helped to take care of the defendant while she lived there, as she was unemployed and had no visible means of support except from a small insurance policy, most of which she used in purchasing an automobile. Plaintiff, besides improving the property, paid for utilities and fuel. The only .modern improvement was electricity. In 1931, at the time of purchase, plaintiff intended to pay the balance of $250 that year, but was unable to do so on account of a bank failure. However, the defendant never asked the plaintiff for the balance of the purchase money nor to vacate the-property until after she moved out in 1947. At about that time, together with her son and daughter-in-law, she went to see the plaintiff and they asked him to move out. "Whether or not he agreed to do so is in dispute. However, the defendant did start summary proceedings for possession, obtained a judgment and writ of restitution which she turned over to a deputy sheriff for service. At about that time (1947 or 1948) another niece of the plaintiff tried to talk the defendant into allowing plaintiff to remain on the property as long as he lived inasmuch as he had no other place to go, went to see the defendant, offered to pay her the $250, and interest, and took a deed along for the defendant to sign. The defendant, however, refused to receive the payment or sign a deed, claiming she had sold the property and .'that she would do nothing until she discussed the matter with her son. There was some testimony that the place at the time of the hearing was worth $1,500. The defendant while she was living in the home at no time before she moved out in 1947 ever demanded or mentioned the payment of the $250, or the interest. .She well knew that he lacked the means for paying it and doubtless that was the reason why she never made any request for the balance during the 17 years she lived there. The record plainly establishes that the defendant waived performance of payment of the balance, until she finally made demand in 1948.
“The time of performance of a land contract can be waived by the parties, and such waiver can be shown by their acts.” Sorge v. Dickie (syllabus), 199 Mich 251.
See, also, Waller v. Lieberman, 214 Mich 428.
The appellant claims that the plaintiff never made a tender of the balance of the purchase price. The record establishes that the defendant was offered payment of the balance, with interest, refused it, and started summary proceedings for possession. It is apparent that a legal tender of the balance of the principal and interest, if made by the plaintiff, would have been refused. A further tender was unnecessary, would have been an idle ceremony and under the circumstances a failure to make a further tender is not a defense. Weinburgh v. Saier, 303 Mich 640; Hanesworth v. Hendrickson, 320 Mich 577.
The defendant does not. deny that she agreed to' sell the property to the plaintiff for $700, and that she received a $450 down payment in 1931. The record establishes that the plaintiff has ever since then been in possession of the property, paid the taxes and made improvements. The trial court held that under the circumstances of the case the parol contract that had been made was enforceable ■in equity and decreed accordingly. No question is : raised here regarding the statute of frauds, the statute of limitations, or equitable estoppel. We need not discuss whether the proceedings carried on by the defendant in the municipal court in Sturgis in summary proceedings for possession were with jurisdiction. or .legally carried on. Obviously, the defendant is not entitled to possession inasmuch as the plaintiff is entitled to specific performance, and a deed of the property. The trial court granted specific performance on condition that the plaintiff pay ;the defendant the balance of $250, with interest at '5% beginning on the date when the defendant demanded payment. We are in accord with the decree :and also the conclusion of the trial court that “this is a family matter,” without costs allowed either party. No costs.
Affirmed.
Butzel, Carr, Bushnell, Sharpe, and Reid, JJ., concurred with Boyles, J.
North, C. J., and Dethmers, J., concurred in the result. | [
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Carr, J.
These cases involve the same issues of law and fact, were tried together in the circuit court, and on appeal have been submitted here in like manner. The plaintiffs brought their respective actions claiming the right to recover from the defendants under a contract alleged to have been made between the parties. Certain material facts involved are not in dispute. The plaintiffs, their brother David Charles White, and the defendants are the sons and daughters of Charles White, who died in September, 1943. Prior to his death the father and Mrs. Isabelle Drebes, his sister, were co-owners of certain real estate in Wayne county which, it appears, had been inherited by them from their father. Mrs. Drebes was a resident of the State of California and Mr. White managed the property. Apparently a portion of it was sold during his lifetime and the proceeds divided. Whether the grantors received equal shares of the proceeds is in dispute. The rest of such property was sold by the estate of Charles White after his death, Mrs. Drebes receiving one-half of the amount realized.
Mrs. Drebes died in California in May, 1949. Her nearest relatives were her nephews and nieces. During her final illness the defendant Mrs. Sullivan, with the approval of her brothers and her sister, went to California for the purpose of rendering such assistance to the aunt as might be possible. Shortly after the return of Mrs. Sullivan to Michigan, Mrs. Drebes passed away. She left an estate that was distributed after the payment of taxes and the expenses of the probate proceedings in accordance with the terms of a will that she had executed in January, 1947. In accordance therewith each plaintiff, and their brother, David White, received the sum of $500. The will gave a total of $1,100 to friends and also made specific bequests of jewelry, said legacies and bequests not being in question here. The remainder of the estate was by the will directed to be divided between the defendants in equal shares.
On learning the provisions of their aunt’s will the plaintiffs were greatly dissatisfied. It is their claim that they considered going to California for the purpose of investigating the situation and contesting the probating of the will if grounds for such a contest were discovered. It appears that they had expected that Mrs. Drebes would, by will, divide the principal portion of her estate remaining at her death among her nephews and nieces in equal shares. Discussions were had between plaintiffs and the defendants which, as plaintiffs claimed in their declarations and in their testimony on the trial in circuit court, cul minated in the making of a contract whereby defendants undertook and promised, in consideration of the plaintiffs’ promises to forbear to contest the will of Mrs. Drebes, that all moneys coming to the nephews and nieces from the estate of their aunt would be divided among them in equal shares.
The actions brought by plaintiffs were based on the right to recover on such alleged contract. Defendants by their answers and in their testimony denied that any such contract was made. It was in substance their claim that they did not at any time, either by oral statement or in letters written by them, make any promise or promises to divide the cash assets of the estate coming to them with their brothers in consideration of any promise made by the plaintiffs to forbear to contest the will. On the contrary it was their position that the statements on which plaintiffs relied as the basis for the claim of a contract had reference to the division of that portion of Mrs. Drebes’ estate that came from the Detroit property which she and her brother Charles had inherited from their father, that defendants felt that the father, if living, would have wished such division, and that in deference to such wish they indicated to plaintiffs that they would give to each, after deducting certain expenses, enough money so that each niece and nephew, including their brother David, would receive one-fifth of the amount so realized by the estate. It was their position in .the trial pourt, as well on this appeal, that whatever they said to the plaintiffs was merely in the nature of statements of an intention to make gifts, and that there was no consideration of any kind or character moving from the plaintiffs to them in connection with the transaction.
It further appears that payments on the basis suggested by defendants were made by them to their brother David and accepted by him. It may be noted in passing that the testimony of David White on the trial indicated that he considered such payments to be gifts. Plaintiff Robert White refused a similar tender made by Mrs. Sullivan, and the other plaintiff indicated that he would not accept payments from the defendants on the basis of such payments being gifts made for the purpose of equalizing the amounts received by the parties from that portion of Mrs. Drebes’ estate derived by her from the Detroit property.
Plaintiffs’ motions for summary judgments were denied, and the cases were brought to trial before a jury. At the conclusion of plaintiffs’ proofs defendants moved for directed verdicts which motions were taken under advisement by the trial judge. They were renewed following the introduction of testimony by defendants and rebuttal proofs by plaintiffs. The trial judge again took them under advisement and submitted the cases to the jury, which returned verdicts for defendants. Plaintiffs’ motions for new trials were denied and they have appealed, claiming that errors in the course of the trial were so prejudicial to them as to require reversals of the judgments and the granting of new trials.
As before noted, it was the claim of the plaintiffs in their declarations and in their testimony that defendants entered into a contract with them, in consideration of and in reliance on their promises to forbear to contest the will of Mrs. Drebes, to share with plaintiffs all of the assets of the aunt’s estate. They had refused to accept from defendants payments intended to bring about an equal participation in the assets of the estate derived from the Detroit property which Mrs. Drebes and Charles White had inherited from their father. Nevertheless the trial court was requested to charge the jury that it might return verdicts based on the theory of a contract obligating defendants to pay to each plaintiff one-fifth of the residue of the Detroit property remaining in the estate. The request was denied, and appellants now claim that the trial court was in error in not submitting the cases on the theory that the jury might find that the parties, under the proofs in the cases, had in fact made such a contract. The cases were, in fact, submitted on the basis of plaintiffs’ claims as to the existence of a contract and the provisions thereof if made.
There was no error in refusing to submit the cases also on the alternate theory suggested by plaintiffs in their request to charge. There was no proof before the jury justifying a conclusion that a contract was made pertaining solely to the assets in Mrs. Drebes’ estate derived from the Detroit property. Plaintiffs did not claim any such agreement, and defendants denied the existence of any contract whatsoever between themselves and the plaintiffs, asserting that statements made by them had reference merely to contemplated gifts to be made to plaintiffs in deference to the supposed wishes of their father. Defendants did not, as the argument of counsel for the appellants seems to assume, admit the existence of a contract based on a consideration obligating them to share with plaintiffs any part or portion of what they had received under the will of their aunt, conceding merely the making of statements indicating a then present intention to make gifts. Promises of such nature are not enforceable. See Holmes v. McDonald, 119 Mich 563 (75 Am St Rep 430); Geisel v. Burg, 283 Mich 73; 38 CJS, pp 793, 794. The request to charge in the manner indicated was properly refused.
It is further claimed that the trial judge erred in refusing to charge the jury that verdicts might be returned against either defendant on the theory that the agreement was joint and several. This question was discussed by court and counsel immediately before the submission of the cases to the jury. The record does not indicate that a specific request to charge on the matter was submitted. Any claim that the jury might have returned verdicts against one of the defendants only is wholly at variance with the declarations and proofs of the plaintiffs and the obvious theory on which the cases were tried. The declarations did not suggest, other than in the titles of the causes, that the actions were “joint and several.” The claims of the plaintiffs were clearly set forth in the declaration filed by plaintiff Robert White, as follows:
“Plaintiff further shows unto this court that after several conferences and exchange of letters commencing as of May 27, 1949 and ending on or about July 29, 1949 entered into between the defendants and the plaintiff and his brother John it was agreed by them that the residue of the estate of Isabelle C. Drebes would be divided equally between all the children of Charles D. White and that the plaintiff and his brother should not contest the validity of the will of the late Isabelle C. Drebes or institute any legal proceedings against her estate and that the travel expenses of the defendant Grace Sullivan be deducted therefrom.”
During the course of the trial counsel for plaintiffs, in answer to a question of the court with reference to the contract claimed to have been made, said:
“The promise Jo forbear the contest of the will. That is the contract. That is our contract, that we would forbear the contest of the will, and in consideration therein they offered to divide the property equally in accordance with the understanding that the people had before the death of Mrs. Drebes.”
The situation, in Lorimer v. Wayne Circuit Judge, 216 Mich 587, cited by appellants, was materially different than in the case at bar. There the moving parties sought by mandamus to compel the setting aside of the judgment rendered against them in a case in which they had been sued, with others,’ on a contract. It appears that some of the defendants named in such suit as obligated under the contract were not served with process, others had not appeared, and still others had not pleaded. In seeking the writ of mandamus it was the claim of plaintiffs that the trial court was without jurisdiction to render judgment against them on the ground, among others, that the obligation on which recovery was sought was joint. The declaration averred that the defendants, and each of them, had employed plaintiffs to perform certain services, and afterwards said defendants, and each of them, had agreed to pay therefor. It was held that the language used clearly charged a joint and several indebtedness, emphasis being placed on the words “and each of them.”
The allegations in the declaration of Robert White, and the statement of counsel, above quoted, cannot be interpreted except as indicating that the plaintiffs were relying on a contract claimed to have been made by both of the defendants. Shortly before the end of the trial counsel again stated, in answer to a question of the court, that “it is a joint contract.” Our examination of the record indicates that at no time during the introduction of the proofs was there any suggestion on the part of plaintiffs or their counsel that the contract on which recovery was sought could be regarded as made by one of the defendants alone. Such theory is not supported by testimony. It is scarcely conceivable that one of the defendants, without the participation of the other, would have entered into a contract with the plaintiffs to pay them out of the proceeds which she might receive from the estate of the aunt such sums as would give each one-fifth of the assets available for distribution after the payment of the specific legacies and bequests. It is equally inconceivable that one defendant would have undertaken to' bind herself to cause her sister to join in the making of such payments. The claim that the trial judge was in error in refusing to permit the jury to consider the return of verdicts against one of the defendants to the exclusion of the other finds no support in the record. It is, in fact, wholly at variance with it.
The brother of the parties to these cases, David Charles White, a retired rear admiral of the United States Navy, was called as a witness on behalf of the defendants. Among other matters, he testified on cross-examination to receiving a letter from Mrs. Sullivan stating that the plaintiffs had threatened to start suits. He was then asked if he recalled what was in that letter, to which a negative answer was made. The witness indicated that he thought that the letter stated why the suits were to be instituted. Further testimony with reference to the contents of the letter was excluded by the trial judge.
Apparently an order had been obtained by counsel for plaintiffs requiring defendants to furnish plaintiffs with copies of letters in their possession from the plaintiffs to either of them, or from either of them to other relatives interested in the' estate of Mrs. Drebes. It does not appear that any request had been made of the witness to produce letters in his possession received by him from defendants or from other parties in interest. The ruling excluding further testimony as to the contents of the letter was made on the ground that there was no showing of any attempt whatever to have the original of the letter produced in court. Such was obviously the situation. It may well be doubted that the examination of the witness was proper under the rule as heretofore rec ognized by this Court. Paul v. University Motor Sales Co., 283 Mich 587.
It may also be noted that the witness stated that he did not recall what was in the letter. In the absence of a specific recollection on his part, testimony as to the contents was open to objection. No statement was made by counsel for plaintiffs as to the purpose of placing before the jury the contents of the letter. Presumably, counsel had in mind that the letter might contain statements against the interest of the writer, or might tend to impeach testimony that she had given. However, when on the witness stand, Mrs. Sullivan was not interrogated with reference to the contents of the letter in question. If counsel’s purpose in inquiring about the letter was the impeachment of testimony,- it is apparent that no attempt was made to lay a proper foundation therefor. It is equally apparent that statements made by Mrs. Sullivan in the letter to the witness as to the reasons why plaintiffs were threatening to bring suits may not be assumed to be inconsistent with her claims on the trial. The materiality of the contents of the letter is not made to appear in any way. On this record we cannot say that the exclusion of the testimony as to the contents of the letter, assuming that the witness might finally have recalled such, was prejudicial to the plaintiffs. On the contrary, we think that the ruling of which appellants now complain was correct.
Counsel for plaintiffs in cross-examining the witness David C. White inquired if his father was intensely religious and extremely honest. Affirmative replies were given by the witness. The trial court indicated .that such cross-examination was open to objection. Appellants claim that the limitation on the pursuit of the cross-examination and the remarks of the trial court were prejudicial to them. Justification of the testimony is attempted on the ground that defendants through the introduction of a letter written by Mrs. Drebes to Charles White had impugned the character of the latter. An examination of such letter does not justify any such claim. Deference was made therein to the fact that Mr. White in dividing the proceeds received from certain property owned by himself and Mrs. Drebes had retained considerably more than he had forwarded to her. The letter expressed some surprise, but admitted that Mr. White had done much work for several years and was deserving of compensation. Apparently Mrs. Drebes was somewhat disappointed at the amount she received, but there was nothing in the letter that could reasonably be construed as reflecting in any way on the character of the father of the plaintiffs. Such character was not in issue in the case. Under the circumstances the comments of the trial judge did not constitute error prejudicial to plaintiffs.
Complaint is also made, based on the admission of the letter above referred to, which apparently was written in January, 1937. Plaintiffs alleged in their declarations that Mrs. Drebes and Charles White owned certain real estate, that for many years the property was managed by Mr. White without charge, and that it was understood between Charles White and Mrs. Drebes that the latter “would leave her property in equal shares to the children of Charles B. White.” The testimony of plaintiff Eobert White indicates that he believed that his father and his aunt shared equally the proceeds received from the Detroit property sold before Mr. White’s death. The record suggests that plaintiffs relied to some extent in support of their claim that they should share equally with defendants in the entire estate of their aunt on an agreement of such purport between her and their father. If there was any arrangement of that kind, the record fails to show it. The letter was apparently' received in evidence, after having been first excluded by the trial judge, on the theory that it tended to throw some light on the relations of the parties. It is doubtful that it was material to any issue actually involved in the determination of the question whether the contract on which the plaintiffs based their actions was in fact made. However, it must be said that plaintiffs by their pleadings and their testimony laid some foundation at least for receiving the exhibit in evidence. Such being the case, they are not now in position to complain. In any event the introduction of the letter, assuming’ its lack of materiality, did not prejudice the plaintiffs.
■ After defendants had rested their case, plaintiff John White was recalled to the stand ostensibly for rebuttal testimony. After having been asked certain questions, the trial judge interposed on the ground that the matters had previously been covered in the testimony of the witness in support of plaintiffs’ cases. Certain further questions were asked and answered, and Robert White was also recalled, presumably as a rebuttal witness. Appellants now complain that the refusal of the trial court to permit John White to repeat testimony that he had previously given was prejudicial error. With such claim we are unable to agree. The record discloses that both plaintiffs testified at length in support of their claims. The trial judge was not guilty of any abuse of discretion in refusing to permit plaintiffs to repeat their claims after the defendants had rested.
■ It is also argued that the trial court erred in refusing to charge the jury that it is the policy of the law to favor the settlement of controversies arising out of the distribution of estates. The instant cases do not involve probate proceedings. Rather, the question was whether the parties to this litigation had entered into a contract, as claimed by plaintiffs, whereby defendants were bound to make certain payments to each of them. The nature of the controversy did not call for a statement of the policy of the courts or of the law. The function of the jury was to determine the facts from the proofs introduced by the parties. A consideration of the entire charge of the court indicates that the issues involved were clearly and definitely stated. The claim of error based on the refusal to charge as requested is without merit.
The judgments were filed November 14, 1950,'and the orders denying the motions for new trials were entered January 3, 1951. Thereafter a motion was made on behalf of defendants to dismiss writs of garnishment that had been taken out by plaintiffs at the time their suits were instituted. Such motion was granted, and it is claimed on behalf of appellants that the order of dismissal was improper because of the pending appeal of the cases to this Court. In view of the conclusions reached on the matters above discussed, it is unnecessary to consider the claim of error based on the dismissal of the garnishment proceedings. Plaintiffs were not prejudiced thereby.
The judgment is affirmed, with costs to appellees.
North, C. J., and Dethmers, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred.
See CL 1948, § 691.691 et seq. (Stat Aim and Stat Ann 1951 Cum Supp § 27.1461 et seq.).—Reporter. | [
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] |
Boyles, J.
Plaintiffs own lot 3 in Zenith Heights, a recorded, platted subdivision on Walloon lake in Bay township, Charlevoix county, on which they have had a summer home since 1939. Defendants own lots 1 and 2 in said subdivision and have a summer home on lot 1.' These lots front easterly on the lake, and at their rear westerly boundary Valley Brook avenue runs northerly and southerly through the subdivision. Among others, Valley Brook avenue and Franklin avenue, the 2 streets involved in this case, are shown on the recorded plat as dedicated to the use of the public. Valley Brook avenue, although not improved, had been used by plaintiffs until it was barricaded by the defendants. In 1948 the defendants erected a barricade across Valley Brook avenue from the southwest corner of plaintiffs’ lot 3 to the opposite lot 28, and later posted “No Trespassing” signs on that part of Valley Brook avenue southerly from the barricade to its connection with Franklin avenue, a distance of 117 feet according to the plat. This. prevented plaintiffs from using that part of Valley Brook avenue as an outlet for their lot 3 to and- from Franklin avenue. The locus of said lots and streets, the barricade across Valley Brook avenue, and the signs put up by the defendants, is shown on the following diagram:
After Valley Brook avenue was barricaded by the defendants the plaintiffs filed the instant bill of complaint in the circuit court for Charlevoix county to have the defendants enjoined from obstructing or closing Valley Brook avenue, and incidentally to recover damages which plaintiffs claim to have suffered for inconvenience and loss of rental of their summer home while said street has been closed by the barricade. The trial court held that the barricaded part of Valley Brook avenue had ceased to be a street by abandonment and nonuse, that the streets were never dedicated and accepted by the public, and that Zenith Heights was “a mere plat on paper.” The decree as entered, dismissing the bill of complaint, ordered that the plaintiffs, for themselves, their guests and tenants, be granted an easement over a roadway of the defendants from the county highway to their lots 3 and 4 for a period of 2 years as a means of ingress and egress from said county road to their lots, to automatically terminate 2 ye.ars from date of decree. Plaintiff Velma Richey appeals.
"VVe are not in accord with the conclusion that Valley Brook avenue from the southerly line of plaintiffs’ lot 3 to Franklin avenue has been abandoned by nonuse. The barricaded distance which has been used by plaintiffs and others for access to and from plaintiffs’ lot 3 is 117 feet. Plaintiffs showed that from the time when they first purchased lot 3 in 1939 they used Franklin avenue and Valley Brook avenue for access to the rear of their property. They did not have water facilities on their property, and used Valley Brook avenue to obtain water from the well of a neighbor to the south of Franklin, 2 or 3 times a day, carrying it in pails. Until Valley Brook avenue was barricaded they used Franklin and Valley Brook every year, since they had been there. Their renters also used Franklin and Valley Brook for access to lot 3. The oil truck making deliveries for their use came in by Franklin and up Valley Brook once a week. They had lumber and roofing brought in by the same route. For the' last 4 years their guests and other members of their family used Valley Brook between Franklin and their place. There were times when they used the same route for motor vehicles, when they could not get through by a road across private land which subsequently was closed up by the owner. A witness for plaintiffs testified that he was called to fix screens for plaintiffs’ porch and drove upon Franklin avenue 4 or 5 rods, then north up Valley Brook to plaintiffs’ place; and had walked it a good many times. A Mr. Cavell, owner of 40 acres of land immediately south of Franklin avenue, testified that he had walked Franklin avenue and Valley Brook avenue many times to go to plaintiffs’ place, and that plaintiffs visited them the same way almost every day, using Valley Brook down to Franklin, and that it had “been going on” ever since plaintiffs took possession in 1939. Mrs. Cavell testified she had “driven a car over Franklin and Yalley Brook * * * probably 3 years ago and on occasions prior to that when we would want to get something to the Richeys (plaintiffs) or Shephards from our place, I would drive up with it. I have walked that route every day and often more than once a day during the summer when Richey’s cottage has been occupied.”
In the trial court the defendants apparently relied on Meyer v. Meldrum, 237 Mich 318, and Gardens of Rest, Inc., v. Upper Michigan Power & Light Co., 322 Mich 153, to sustain their claim that Yalley Brook avenue had ceased to be a street by voluntary abandonment and nonuse. In the Meyer Case the plaintiffs claimed that land 40 x 66 feet, which would extend from a public highway to Lake St. Clair, was itself a public highway. It had been unusable as a highway for upwards of 25 years, after it had been obstructed by street railway tracks crossing it. These tracks were above the level of the street, with a vertical rise of several feet, making this land impassable for use by automobiles. Trees had been planted and a well dug on it for 15 or Í6 years, and a dike built across it out of logs, stones and cement. For many years no attempt had been made to use it for travel. It was covered with sod, sloped rapidly so as to make it impassable, and across the entire front there was a solid stone and concrete breakwater. The Court properly held that if it ever had been a public street, it had been abandoned for many years. Obviously the facts distinguish the case from the case at bar. In the Gardens of Rest Case, under facts comparable to some extent with the case at bar, the Court said:
“A highway may cease to be such by voluntary abandonment and nonuse (see Meyer v. Meldrum, 237 Mich 318)', but we are satisfied there never has been a voluntary abandonment and nonuse of the old highway in the case at bar.”
The defendants assert that Valley Brook avenue from plaintiffs’ lot 3 southerly to Franklin avenue has been abandoned by nonuse. In that regard they have not sustained the burden of proof.
“The burden of proving abandonment is upon the party asserting it,- and abandonment occurs only when the use for which the property is dedicated, wholly fails.” Kirchen v. Remenga, 291 Mich 94.
We conclude that Valley Brook avenue from plaintiffs’ lot 3 southerly to Franklin avenue has not been abandoned by nonuse, and we so hold.
Nor do we agree with the holding that Franklin avenue and Valley Brook avenue, platted streets in Zenith Heights, were not dedicated to the use of the public. The dedication is in the recorded plat, signed by the plattors, as follows:
“-DEDICATION-
• “Know all men by these presents, That we George Franklin Jr. as proprietor, and Laura L. Franklin his wife, have caused the land embraced in the annexed plat to be surveyed, laid out and platted, to be known as Zenith Heights and that the streets and alleys as shown on said plat are hereby dedicated to the use of the public.
“Signed and sealed in presence of 1 “Mary E. Anderson j-“Grace D. Flagg J
George Franklin Jr. [L.S.] Laura L. Franklin. [L.S.]”
The recorded plat also shows the approval of the township board of Bay' township, August 14, 1911, signed by the supervisor and clerk. No question has been raised that the recorded plat fails to conform to the statutory requirements. CL 1948, § 560.12 (Stat Ann § 26.442), requires that a form of dedication shall be printed on each plat, “and that the public streets, alleys and other public places shown on it are dedicated to the use of the public.”
“The dedication of property for the purpose of a highway carries the right to public travel.” Village of Grosse Pointe Shores v. Ayres, 254 Mich 58.
There have been no proceedings attempted or taken to vacate or abandon the 2 streets in question. Plaintiffs had and still have the right to use said streets for access to their lot 3. As against their rights, the , defendants’ barricade was unlawful. Schurtz v. Wescott, 286 Mich 691; Kirchen v. Remenga, supra.
Plaintiffs asked for damages. They claim that as the result of the barricade" of Valley Brook avenue they had been “prevented” from renting their property since the barricade. Appellant testified:
“Q. What about'your property this year?
“A. It has been a complete loss to us, as far as income is concerned, because of the obstruction. We felt it would hardly be fair to ask people to rent property when there was no way for them using the road. * * *
“Q. When you rent your property, how much do you get for it ?
“A. We get $35 a week.
"Q. Normally, how many weeks of the year do you rent?
“A. We rent it about 6 weeks out of the season.”
Plaintiffs’ property was occupied by tenants in 1948, although the barricade was then in place. They made no showing that any person was ready and willing to rent their place in 1949, or later. Appar ,ently they preferred to refrain from attempting to rent it, as a matter of their own choice. Their proofs do not justify an award of such speculative damages as they now seek to obtain.
The decree entered in the circuit court is set aside and a decree may be entered in this Court requiring the defendants to remove the barricade and no trespass signs and enjoining the defendants from obstructing, closing or attempting to close Yalley Brook avenue in said plat, with costs of both courts to appellant.
North, C. J., and Dethmers, Butzel, Carr, Bushnell, Sharpe, and Reid, JJ., concurred.
CL 1948, § 560.1 et seq. (Stat Ann § 26.431 et seq.). Subsequent amendments have no bearing. | [
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Reid, J.
Plaintiff brought suit against the defendant to recover for personal injuries and for damages to plaintiff’s automobile caused by a collision in which defendant and defendant’s automobile were involved. The case was tried before a jury which rendered a verdict in favor of plaintiff. From the judgment entered on the verdict, defendant appeals.
The sole question raised on the appeal is whether the verdict was against the great weight of the evidence.
On June 8,1949, after midnight, plaintiff was driving southerly on Telegraph road in Taylor township, Wayne county,. Michigan. The paved portion of Telegraph road at the point in question is 40 feet wide with a median line. A driveway led to plaintiff’s premises easterly from Telegraph road. Plaintiff testified that as he was going southerly and approached a point nearly opposite his driveway, he “took over toward the middle of the road” and started putting his stoplight on and off to signal some transit trucks to go by him on the right and to indicate that he, plaintiff, was going to make a left turn and had come to a stop. He testified that the front of his ear was at least a foot to a foot and a half west of the center line of the highway. The wheels and his car were turned to the east or southeast a little, and he there remained in that position. He testified that there was no one in the car with him and that 2 vehicles traveling north on the easterly portion of Telegraph road passed by.
Plaintiff further testified that after the 2 cars had passed plaintiff, a third car, defendant’s car, traveling north, came to the point of collision, a few seconds later, and that defendant’s car was out in the center of the road, the lights coming right at plaintiff, and “he got on top of me and he turned to the right and that is when the crash came;” that he, plaintiff, first saw the car in the center of the road about 500 or 600 feet away, a considerable distance. It was in the center of the road traveling partly in the lane on the east side and the lane on the west side, straddling the middle line of the highway.
Plaintiff testified:
“Q. Which half of the highway was this [defendant’s] vehicle on as it approached you?
“A. It was on the west half of the road, on the west side.”
Plaintiff further testified:
“Q. When it [defendant’s car] came up close to your vehicle, what did it do ?
“A. It made a turn to the east.
“Q. And when it did that what occurred?
“A. That is when it collided with me and the crash occurred and it seemed everything went black.”
Plaintiff further testified the front of defendant’s car hit the right front of plaintiff’s car, right front fender, the right half of plaintiff’s radiator and the right headlight, that after the impact both cars went about 100 feet and plaintiff’s ear came to a stop about 100 feet to the north, and that after plaintiff got out of his car, he heard defendant Ritchie say to a lady, “We were all sleeping.”
Some of plaintiff’s testimony is corroborated by that of his son, who was living with his father and mother, and who testified that about 12:30 in the morning of June 8, 1949, his mother came and told him that his father was in an accident and he arose immediately and that he took a flashlight and saw his father’s car about 120 feet northerly of the plaintiff’s driveway and that he had occasion to ascertain that there was dirt or debris that had dropped on the pavement on the west side of the center of the highway, that he saw no skid marks whatever on any part of the road near the place of the collision.
Plaintiff’s wife, Catherine Skrzycki, testified that when she heard the noise of the collision, she went out to a point near the point of the impact and saw the defendant Ritchie and as she neared it there was a man shouting, “What in the hell were you doing there?” and that she walked up to him and said “What happened to you, Mister?” and he said, “Lady, the man was standing in the center of the road.”
Defendant Ritchie on cross-examination testified,
“Q. If that car [plaintiff’s car] did make a turn it is a physical fact and you know to your knowledge that the headlights would also have turned, would they not ?
“A. They would.
“Q. And you never noticed those lights turning so that they showed into your car?
“A. I did not.”
It is to be noted in connection with these answers by Ritchie, that defendant Ritchie had testified that as he neared the point of impact, plaintiff’s car suddenly came from the westerly side of the pavement into the path of his car and that the last he, defendant Ritchie, saw of the lights coming from the opposite direction, that car was headed straight going south and that Ritchie had further said, “Well, the car [plaintiff’s car] apparently had gotten on, not over 20 or 30 feet ahead and cut straight in.”
It will thus he seen that there was substantial tes-, timony supporting plaintiff’s theory within the meaning of the case of Werker v. McGrain, 315 Mich 287, 291. In saying that there was substantial testimony supporting plaintiff’s claim as to the manner of the causing of the accident, we still have in mind that defendant on the stand testified that at a time when it was impossible for defendant to prevent the accident, plaintiff suddenly drove his car from the westerly side of the pavement into the path of defendant’s car. In that connection we further note that witness Carl W. Lutz, detective with the State police, stationed at Plat Rock, testified that he re ceived word of the accident in question about 1 a.m. and speedily went to the place of the accident and that plaintiff said he (plaintiff) saw the vehicle going north and slowed down and wanted [waited] for that vehicle to go by and started to make his turn into the driveway and that he was struck at that time. But witness Lutz also testified that the person who told him what we have recited also said that he was coming home from his work, whereas plaintiff was not coming home from work, he was on vacation and was returning from having his car greased, and defendant was the person who was coming home from work. Hence, the jury could well have disregarded Lutz’s testimony that plaintiff admitted cutting in ahead of defendant on the basis that the officer misidentified the party speaking.
We also note that there was testimony by a shorthand reporter that took the statement of plaintiff on June 28, 1949, that plaintiff stated:
“Q: You didn’t see the set of lights in the car that struck you?
“A. No. I could see cars down the line. It seemed 2 cars were almost side by side. They came through and I supposed just a few seconds went and everything went black.
“Q. You didn’t see the car at all that hit you?
“A. No.”
Plaintiff claims that he was in pain when the statement was taken by the stenographer.
Defendant offered photographs taken at the scene of the collision at a time when the cars (as it was testified) were still standing as they stood when they first came to a rest after the collision. Defendant claims there were skid marks back of plaintiff’s car. However, the skid marks are but for a few feet back of plaintiff’s car so far as revealed in any photograph and there is an utter want of testimony in the case that there were any skid marks leading from plaintiff’s car or defendant’s car back to the point of the collision.
The case of Blair v. Consolidated Freight Company, 327 Mich 167, cited by defendant, is therefore not controlling of the instant case. In the Blair Case, there were photographs and testimony of witnesses showing that there were skid marks on the pavement after the collision leading' from the crescent shaped scrape on the pavement to the overturned truck and also skid marks from the same crescent shaped scrape on the pavement to the car of Blair, the plaintiff in that case. The showing as to skid marks is so different in the Blair Case from the showing in the instant case that the Blair Case cannot be said to be controlling as an authority in the instant case.
Notwithstanding the testimony cited herein and other testimony cited and relied on by defendant, there is still substantial testimony which would support the verdict.
We cannot say that the verdict is against the overwhelming weight of the testimony. The judgment appealed from is affirmed. Costs to plaintiff.
North, C. J., and Btjtzel, Carr, Bushnell, Sharpe, and Boyles, JJ., concurred with Reid, J. | [
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Boyles, J.
Plaintiff brought suit to recover damages for personal injuries sustained by reason of being struck by a streetcar operated by defendant. Plaintiff’s declaration, in 2 counts, first declared on defendant’s negligence and plaintiff’s freedom from contributory negligence, and in the second count alleged subsequent negligence. The trial court submitted the ease to the jury on both theories and the jury returned a verdict for plaintiff. On- motion, the trial court entered a judgment for defendant non obr stante■ veredicto from which plaintiff appeals.
The accident occurred at a safety zone for northbound streetcar passengers located opposite Orchestra Place on Woodward avenue in Detroit. Parsons ends at Woodward from the west, and Orchestra Place starts about 100 feet north at Woodward and continues east. Mack, on the east side of Woodward, is 500 or 600 feet south from Orchestra Place, and Brady runs east from Woodward between Mack and Orchestra Place.
The accident happened on Sunday, April 25, 1948, between 10 and 11 a.m. Defendant is a motorman on the Woodward avenue streetcar line, then operating a streetcar on the northbound track. It was a spring day, clear, warm, and. dry. The traffic on Woodward avenue was lighter than usual week-day ■traffic.
The plaintiff, a man 55 years of age, had been using a hearing aid for more than 30 years due to progressive deafness. However, at the time of the accident, he did not have it turned on.- On the morning in question he had eaten breakfast at a ■restaurant just south of Parsons street on the west side of Woodward and intended to go to his sister’s house by taking a Woodward car north.
The essential facts are not in dispute. Plaintiff: testified that he did not remember what happened after he left the restaurant. A witness who saw the entire accident testified as follows: Pie first saw plaintiff when the plaintiff was 5 feet from the west curb of Woodward near Parsons, that plaintiff was running across Woodward at an angle of about 65 degrees. When plaintiff was crossing the southbound tracks, the northbound streetcar was 300 to 500 feet south of the east (northbound) safety zone. It was going 20 to 30 miles per hour and when the plaintiff was between 90 and 110 feet south of the south end of the northbound safety, zone, he began to run north parallel to the tracks. The streetcar sounded its gong twice. Plaintiff continued to run towards the zone. This witness did -not see plaintiff turn his head. The streetcar began to slow down gradually 200 feet south of the northbound zone and entered that zone going approximately 10 miles per hour. At no time did plaintiff turn as if to go outside the zone or make "any deviation from his path, which was northward about 2 feet to the' east of and parallel to the right rail of the northbound . tracks. Both the plaintiff and the streetcar entered the safety zone at about the same time. The right side of the streetcar just behind the front door struck the plaintiff’s left side and threw him against a large metal girder.
The defendant motorman on the streetcar was called by the plaintiff as a witness for cross-examination under the statute, and testified that he was operating north on Woodward a new type of streetcar, his brakes were in good condition, he judged that at 15 miles per hour he could stop in 12 or 15 feet. He testified that when he first noticed the plaintiff he was just leaving the west curb of Woodward at a point 90 to 100 feet south of Parsons, running in a northeasterly direction. At that time the defendant’s streetcar had just left the intersection at Mack, traveling between 10 and 20 miles per hour, was about 150 feet to the south of plaintiff. Defendant testified that he checked his speed but did not sound his bell at first and that plaintiff did not look back towards the streetcar while crossing the street. He testified that plaintiff was running and that when plaintiff was a little north of Brady he changed his course and started to run north within half a foot of the right rail. After plaintiff started running up the track, defendant started ringing his gong continuously. When plaintiff was 90 to 100 feet south of the south end of the zone, he looked over his shoulder. Whether he was looking for traffic or for a streetcar, is left unsettled by the record. When defendant got to the south end of the .safety zone, he was going 4 or 5 miles per hour. The 'last he saw, plaintiff had run up to the end of the safety zone and turned to the right as if to cross the street. At that time defendant was approximately 3 yards south of plaintiff. The defendant did not know whether the streetcar hit the plaintiff, or the plaintiff ran into the streetcar.
A police officer, who was assigned to investigate the accident, testified that the streetcar was stopped after the accident about three quarters of the way past the south end of the safety zone, which was 80 to 90 feet long. He testified that sand was applied by the defendant in an attempt to stop the car, “a spot about 10 feet more or less south of the safety zone.”
The trial court, in granting defendant’s motion for judgment non obstante veredicto, said:
“I * * * think your man (the plaintiff) was negligent, I think the negligence continued, and I am going to find that he was contributorily negligent as a matter of law, under the cases; and give defendant a judgment of no cause for action. * * *
“I did submit the question, however, to the jury at plaintiff’s request. I do not think there was any sub-, sequent negligence in the case.” ¡
Appellant relies on recent decisions of the Court in St. John v. Nichols, 331 Mich 148, and Phillips v. Marten, 331 Mich 330. His claim is that even if the plaintiff was guilty of contributory negligence, he should be allowed to recover on the theory that the defendant was guilty of subsequent negligence. A reading of those decisions shows the controlling difference in their factual circumstances from the case-at bar. In the St. John Case, appellant overlooks the essential fact that the plaintiff’s contributory negligence had ceased to operate as a proximate cause of the accident, caused by the defendants’ subsequent negligence. The Phillips Case held that subsequent negligence had no bearing on the result. The facts in the instant case are similar to those in Kneebone v. Lake Superior District Power Co., 248 Mich 403, where this Court reversed a judgment for a plaintiff who was walking in front of a streetcar, and held' that the trial court should have granted the defendant’s motion for judgment non obstante veredicto.
Considering the testimony in the light most favorable to the plaintiff, we agree with the trial court that the plaintiff was guilty of contributory negligence, and hold that there is no room in the case for a finding that .plaintiff’s negligence had ceased to operate as a proximate causé of his injury before the accident occurred.- In Davidson v. City of Detroit, 307 Mich 420, wherein many cases bearing on the question of. subsequent negligence were discussed, the Court held that the plaintiff was guilty of contributory negligence as a matter of law in going into . a place of obvious danger without observing whether she could do so in safety. The Court held (syllabi):
.“A reasonably prudent man will not take a chance of streetcars slowing up to let him cross a street.
“The fact that a would-be passenger of a streetcar who gave signals of her desire to become a passenger had a right to assume that the streetcar would stop at safety zone which she approached in front of car did not obviate the.necessity of taking usual precaution before attempting to cross the track in front of the streetcar that showed no evidence of slowing down.
“In order to apply the doctrine of subsequent negligence so as to permit recovery by plaintiff, her negligence must have placed her in a position of danger and then ceased to operate as a proximate cause, and it must be clearly proved that defendant must have discovered, or by the exercise of ordinary care and diligence should have discovered, plaintiff’s peril and have had sufficient time and ability to avoid resulting harm by ordinary care and diligence in the use of the means at hand and failed to use it to avert the threatened injury.
“Plaintiff may not recovery damages for injuries sustained, where defendant’s negligence was concurrent with, and not subsequent to, plaintiff’s contributory negligence. * * *
“Where both parties are guilty of concurrent negligence as a matter of law, the doctrine of subsequent negligence has no application.”
Affirmed, with costs.
North, C. J., and Dethmers, Butzel, Carr, Bushnell, Sharpe, and Reid, JJ., concurred.
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] |
Stone, J.
This action was brought by the administratrix of his estate to recover damages resulting from the death of Alexander L. Murphy on July 23, 1910, caused by the alleged negligence of the defendant. The declaration alleges that plaintiff's intestate became a passenger on one of defendant’s trains, having purchased a ticket from Chicago, Ilk, to Bangor, Mich.; that it was the duty of the defendant to keep its depots, with their platforms, along such railroad between Chicago and Bangor in safe condition, and to safely carry said Murphy to his destination. It is alleged that Murphy, upon arrival of the train, left it at Benton Harbor, an intermediate station, for a few minutes’ rest and invigoration, and that while there it was defendant’s duty to keep its station platform in safe condition for passengers in getting on and off the cars at said station. That disregarding this duty, and while the plaintiff’s intestate was on its station platform, it—
“Carelessly and negligently allowed and permitted a large baggage or express truck to be and remain upon said platform, within a few inches from the edge thereof, adjacent to the track of said defendant upon which the said passenger train was remaining aforesaid, and near to and within a few inches of the coaches of said train.
“Plaintiff further says that when the conductor of said passenger train announced that the train was ready to depart, plaintiff’s intestate, being all the time in the exercise of due care and caution on his part, and not knowing of the dangerous proximity of said truck to the said train, attempted to board said train from said platform, got hold of the handlebars or railing on the steps leading to the platform of one of the coaches of said passenger train, with perhaps not more than one foot upon said coach steps, when the said train started, and by reason of the said truck standing where it did, the said truck in some manner, not fully known, caught plaintiff’s intestate and brushed him off the said car steps, hurling him to the ground between the said station platform and the track of the defendant’s said railroad, and onto the said railroad track, and several of the cars of said defendant’s train passed over his body, and then and there on said'day killed him.”
At the- trial it appeared that plaintiff’s decedent, as a passenger, took defendant’s train at Chicago on the day in question, and rode as far as Benton Harbor, Mich. The train was composed of an engine, tender, and seven or eight cars. It made two stops at Benton Harbor, the first about three car lengths from the depot, to coal, and the other at the depot. Murphy alighted at the first stop, and walked towards the depot. After the train pulled ahead to the depot, it stood there some five or six minutes. The length of the depot building, known as the Union Depot, was 135 feet. The express and baggage rooms were located at the west end of the depot. The whole length of the cement platform along the tracks was 305 feet. The conductor registered his train as arriving at Benton Harbor at 5:20 p. m. When the train stopped at the station he shouted, “All aboard,” and after he had registered his train, he came out on the platform and again shouted, “All aboard,” and then proceeded to the engine which stood near Fifth street at the easterly end of the platform. He remained near the cab of the engine while the engineer read a train order to him. He then looked at his train to see if all passengers had gotten onto the train. Everything appearing clear, he gave the engineer the signal to proceed by raising his hand, and stepped onto the front end of the first coach. After the train started Murphy was seen running from the depot some 75' feet in a diagonal direction, and along with the train about a coach length, attempting to board the train. At the time deceased attempted to get on the train, it was going somewhere between 4 and 7 miles an hour. A number of witnesses testified that at this time deceased had an umbrella in his right hand, or under his right arm, and a small paper in his left hand. Other witnesses testified that they did not see deceased have an umbrella, or paper, but their testimony was of a negative character, and it must be said that the great weight of the affirmative testimony was as first above stated. An express truck stood on the platform near the easterly end thereof, towards Fifth street. Its exact distance from the edge of the platform or track was a disputed question. One of plaintiff’s principal witnesses testified: “The last I saw of Dr. Murphy he was on the run, and the train was moving.”
Another of plaintiff’s witnesses testified:
“I seen Dr. Murphy as soon as they hollered, 'All aboard;’ I seen him start for the train. He ran; the train was going about four miles an hour, or anyway, as fast as a man will walk. * * * He took hold of the train with his left hand, and the train was going easterly. He reached with both hands and only got one, and catching with that hand rather threw him this way. * * * When I first saw him I was standing in front of the depot, and he started from the south end. Where he had been I do not know, and the train was pulling out, and he started to run, and he wanted to board the train, and as he got hold of the grab, the handlebar, he struck the truck, the American Express truck, standing right beside the train. The platform was a concrete stone platform. The truck was right alongside the train, and as he tried to board that train he struck his hip against that truck, and that knocked his feet out from under him, and he went headlong down between the truck and the train.”
Whether deceased got one foot upon the step of the car or was running beside the train, with his hand on the handrail when he hit the truck, was a question about which the testimony differed.
Another witness for the plaintiff testified:
“When the accident occurred I was about 20 feet from the main entrance. I was to the east of the main entrance. I was sitting on the curb. * * * I was looking northeast; they call it north there. I was looking toward the track. I saw the conductor going towards the engine; the engine was very near on Fifth street. It was not across the street, but facing Fifth street. Mr. Murphy, he ran diagonally from this window. I didn’t notice Mr. Murphy at the window. * * * Mr. Murphy came on a trot diagonally across here, and I sat here, and the first coach that passed he tried to get on; the people were standing on the platform and the train was going so slow that he missed the next coach; instead of catching the next coach he catched the hind end of the third coach; that is the coach he tried to catch at the head.
“Q. How did he catch it?
“A. He reached his left hand up like that and pulled himself, with his foot upon the platform, upon the step. As he did that the truck pushed him between the cars, in between two, I should say the two coaches, and that doubled him up in such a way the steps hit him in the back, I should say right there some place [indicating], and there was about 12 inches between the step and the earth, I should call it about that, and the step rolled him out, and the train kept on going, and it throwed him back under the next coach wheel.”
The plaintiff’s intestate was killed instantly. He was 36 years of age, weighed about 130 pounds, and was active and in good health.
At the close of the plaintiff’s testimony, and again at the close of all the testimony, counsel for defendant moved the court to direct a verdict for defendant for the following reasons:
“1. Because it is undisputed upon all the testimony that the contributory negligence of the deceased is conclusively established.
“2. Because reasonable minds cannot differ that the deceased was negligent in attempting to get on the moving train, and such minds cannot differ that such negligence contributed to his injury and death.
“3. Because no negligence whatever is shown on the part of the defendant, or any of its employees.
“4. Because there is no proof that the defendant neglected any duty it owed the plaintiff in the premises.
“5. The plaintiff cannot complain that the truck was left at the end of the platform, opposite the baggage car, while the train was at rest; the train being at rest and no part of the truck being where pas sengers could collide with it while getting on the train when the train was at rest; the truck could not possibly interfere with a passenger rightfully and properly attempting to get aboard such train.
“6. The platform of the defendant being absolutely safe for the deceased to have entered any of the coaches while the train was at rest, the truck could not have been made to cut any figure in the case, except by the negligence of the deceased, and such negligence bars a recovery.”
The motions were overruled, and exceptions duly taken.
The trial resulted in a verdict and judgment for the plaintiff.
The above-quoted points, and others, were urged upon a motion for a new trial, which was denied, and the denial duly excepted to by defendant, and the questions are now before ,us upon proper assignments of error.
A careful reading of this record has impressed us with the claim of the defendant that, under all of the testimony in the case, the plaintiff’s intestate was guilty of such negligence in attempting to board a moving train as to bar a recovery. Wé think that it is undisputed upon all of the testimony that the contributory negligence of the deceased was conclusively shown. By the overwhelming weight of the evidence, it appears that deceased was handicapped and at a disadvantage by having an umbrella under his right arm; there had been ample notice, time, and opportunity given to board the train while at rest, and an ample and clear platform provided upon which to reach the train while standing at the station. One who under such circumstances attempts to board a moving train, which, as in this case, was rapidly picking up speed, is guilty of contributory negligence as matter of law; especially is this so when the undisputed evidence shows that the person had ample time and a reasonably safe ingress to the train while it stood at the station. The act of deceased was so palpably reckless as to be inexcusable. He was guilty of contributory negligence in attempting to board a moving train as he did, and no fault of the defendant or its employees, short of gross or wanton carelessness, could excuse him from the results of such negligence. It has always been regarded as negligence for a passenger to attempt to enter a car in a running train. Blair v. Railroad Co., 60 Mich. 124 (26 N. W. 855).
In Lake Shore, etc., R. Co. v. Bangs, 47 Mich. 470 (11 N. W. 276), where a passenger jumped from a moving train, Justice Campbell said:
“We have reluctantly felt ourselves compelled to hold that in our judgment such conduct is beyond any question negligence, and that the jury should have been so instructed. The fact that many persons take the risk of leaving cars in motion does not make them any the less risks which they have no right to lay at the door of the railroad companies. No company can use effectively coercive powers to keep passengers from doing such things. All persons of sound mind must be held responsible for knowledge of the usual risks of such traveling. Every one is supposed to know that a fall beside a moving train is very likely to bring some part of the body or limbs in danger of being crushed. Every one is supposed to know that in jumping from a vehicle running six miles an hour, or much less, he stands a good many chances of falling, or being unable to fully control his movements, and that falling near a train is always dangerous. No doubt every one who tries such an experiment persuades himself that he will escape, but it is impossible to suppose any one of common sense does not know that there is danger. * * *
“If it was negligent to do as Bangs did, the rule of the law deprives him of any redress, because there is here no doubt that it was the immediate occasion of the mischief. The case is a very hard one, and he probably did what some others might have done in his place. But the courts cannot allow hard cases to change the rules that they are compelled to administer.”
See Werbowlsky v. Railway Co., 86 Mich. 236 (48 N. W. 1097, 24 Am. St. Rep. 120); Jacob v. Railroad Co., 105 Mich. 450 (63 N. W. 502).
The opinion in the last-cited case is worthy of ’examination, as it distinguishes the case from McCaslin v. Railway Co., 93 Mich. 553 (53 N. W. 724), and Cousins v. Railway Co., 96 Mich. 386 (56 N. W. 14), cited by plaintiffs counsel in the instant case. In the Cousins Case, Justice Montgomery said:
“The law upon the subject ought no longer to be in doubt. It is undoubtedly prima facie negligent for a passenger to alight from or board a moving train, but it is not in all cases negligence per se to attempt to do so. If one is, by the wrongful act of the carrier, placed in a position where, under a sudden impulse to save himself from serious inconvenience, he attempts to alight from a moving train, where the danger is not imminent, and where persons of ordinary care and caution would make the attempt, it is not necessarily negligent.”
We understand the doctrine of the last-cited case to be that, on first view, or on the face of the act, it is negligent for a passenger to attempt to alight from or board a moving train, but there may be attending circumstances, like a wrongful act of the carrier, or where the danger is not imminent or the like, where it would not necessarily be negligent. We have examined the record in vain to find any such attending circumstances here. The train had been standing at the station five or six minutes, the signals for starting the train were ample and timely, no fault on the part of the carrier is claimed at this point, and it does appear that deceased was simply loitering about the station, at a time when he should have been upon the train. Burden v. Railway Co., 104 Mich. 101 (62 N. W. 173); Michigan Central R. Co. v. Coleman, 28 Mich. 440; Foley v. Railway Co., 179 Mich. 586 (146 N. W. 186).
Many more of our own cases might be cited in sup port of the genera] doctrine here stated. See Smith v. Accident Ass’n, 104 Mich. 634 (62 N. W. 990). We see nothing in the circumstances which could change the general rule, or excuse the act.
In St. Louis, etc., R. Co. v. Dewees, 153 Fed. 56, 82 C. C. A. 190, Van Devanter, C. J., used the following appropriate language:
“It is undoubtedly true that cases are not lightly to be withdrawn from the jury, and that ordinarily negligence is so far a question of fact that it should be submitted to and determined by them, but it is equally true that when the evidence and the inferences to be reasonably drawn from it are undisputed, or are of such conclusive character that the exercise of a sound judicial discretion would permit the court to give effect to but one verdict, the case may and should be withdrawn from the jury, and a verdict directed for the plaintiff or the defendant, as the one or the other may be proper.”
We have examined the authorities cited from other States. In Browne v. Railroad Co., 108 N. C. 34 (12 S. E. 958), the conductor of a train had ordered a passenger to go to a coach and get in, and then signaled the engineer to start the train without waiting to see whether the passenger had gotton on. It was held that the company was not liable for the injuries received by the passenger in trying to get on the car in motion, where the train had already been stopped a reasonable time, and the passenger had wilfully delayed to get on it, and that in order to avoid the imputation of contributory negligence in so boarding the moving train, the passenger must show that he did so without manifest risk to himself, or that the train did not stop long enough for him to board it while it was stationary. The court said:
“The general rule is that passengers who are injured while attempting to get on or off a moving train, cannot recover for the injury. Phillips v. Railroad Co., 49 N. Y. 177; Beach, Railway Law, § 987.
“And of course this, like all other general rules, is subject to some exceptions. Where a train is stopped at a station, and, after passengers, are told to go aboard, it is suddenly started before they have had time to do so, and when, without unreasonable delay they are trying to get upon it, if a passenger who is in the act of getting upon the platform is injured by the sudden jerk of starting, without signal, the court may submit the question of negligence to the jury, but the company is under no obligation to delay the departure of the train beyond the usual time because a passenger has purposely or negligently deferred getting on it till the last moment, though he had abundant time to do so while it was standing still.”
In Hunter, Adm’r, v. Railroad Co., 112 N. Y. 371 (19 N. E. 820, 2 L. R. A. 832, 8 Am. St. Rep. 752), the New York court of appeals held that endeavoring to board a train moving at the rate of six miles an hour is an act of such danger as to prevent any recovery from the railroad company for the death of the person attempting it, even though the train was about to pass the station where it was advertised to stop, and where he was waiting for it, without stopping, and the conductor called to him to jump on if he was going. In that case Peckham, J., delivered the opinion of the court, and reviews the New York cases, quoting the language of Andrews, J., in Solomon v. Railway Co., 103 N. Y. 437 (9 N. E. 430, 57 Am. Rep. 760), as follows:
“ ‘Negligence, no doubt, is usually a question of fact, of which the jury must inquire, but the inference of negligence in a given case may be so clear and convincing that the judge may direct a verdict. The conclusion that it is prima facie dangerous, to alight from a moving train is founded on our general knowledge and common experience, and it is akin to the conclusion, now generally accepted, that it is in law a dangerous, and therefore a negligent, act, unless explained and justified .by special circumstances, to attempt to cross a railroad track without looking for approaching trains. In boarding a moving train there is gen erally less excuse than in alighting from one. The party attempting it is not often under the same stress of circumstances as frequently happens in the former case, tie may be compelled to wait for another train, but this is an inconvenience merely, which does not justify exposing himself to hazard. * * * If men will take such hazards, they must bear the consequences of their own rashness; and it is no just reason for' visiting the consequences upon another that his negligence co-operated in producing the result.’ ”
Judge Peekham continues:
“We think that the facts in this case are so overwhelming in their nature that no reasonable judgment can be formed as to the act of the deceased in attempting to jump upon this moving train other than that it was dangerous and reckless, and that the injury resulting therefrom was contributed to by him.
“We do not regard it as of the slighest importance, under the circumstances of this case, that the conductor of the train notified the deceased to jump on. That notification certainly cannot be interpreted to mean more than that the train would not stop or go slower than it was then going, and that if the deceased wanted to take it he must jump on at that moment. That does not alter the highly dangerous nature of the act itself. The deceased was in absolute safety at the time the direction was given. It created no emergency which called for the exercise of immediate judgment in the choice between the two dangers. It was a simple question of possible inconvenience, * * * and it afforded not the slightest justification or excuse for attempting to board a train moving at that rate of speed, and when he did it, he did it at his own risk.
“We think the plaintiff, upon this state of facts, should have been nonsuited.”
This case was before the court of appeals again, and is found reported in Hunter v. Railroad Co., 126 N. Y. 18 (26 N. E. 958, 12 L. R. A. 429). A new trial had been had in which the plaintiff had recovered on some new evidence that the speed of the train was between one and two miles an hour. The court said:
“Of these witnesses, two had previously testified to a speed of four, to six miles an hour, and the other had not testified upon that subject.
“In.view of the doubt justly resting upon the character and correctness of this evidence, we might very properly say that it was open to the court to take as the fact concerning the speed of the train the evidence given by the other witnesses in the case for both parties, which placed it at about six miles an hour. But we shall, for the purposes of the case, assume that the evidence as now given left it a question * * * as to how fast the train was moving past the station. We will accept that rate of speed deemed by the plaintiffs as most favorable to their contention, and still we must hold that the plaintiffs were not entitled to a recovery on their case. The conclusion was irresistible from the facts that the conduct of plaintiffs’ intestate was negligent, and that his act contributed to his injuries and death.”
In Missouri Pacific R. Co. v. Railroad Co. (Laboy, Intervener), the circuit court for the eastern district of Louisiana, 36 Fed. 879, the intervener sought to recover of the Texas & Pacific Railroad Company damages for injuries received while attempting to board the defendant’s train, operated by receivers of said road.- The master reported adversely to the claim, and thfe intervener excepted. Pardee, J., said:
“The evidence establishes, as the master reports, that the intervener received the injuries of which he complains in attempting to get on the passenger train of the Texas & Pacific Railway Company while the same was in motion, and before it stopped at a regular station on the line; that in so getting on the train he was' neither advised nor compelled by the agents of the company, and that the intervener’s said attempt contributed directly to his injuries. It is the settled jurisprudence of Louisiana, whose laws control as to the responsibility in this case, that no person can recover damages for injuries received where he has himself contributed to the negligence which caused the injury. See Knight v. Railroad Co., 23 La. Ann. 462, and cases there cited.
“Attempting to mount a moving railroad train without the advice and direction of the railroad’s agénts is negligence, according to all respectable authorities, text-books, and adjudged cases. See Shearman, R. Neg. § 288; Hutch. Carr. § 641; 2 Ror. R. R. 1111.”
In Tobin v. Railroad Co., 211 Pa. 457 (60 Atl. 999), the per curiam opinion is so short that we quote the same:
“The plaintiff, was injured at a station where the tracks of the defendant’s road were elevated to avoid crossing a city street at grade. The station platform was 13 feet wide and 340 feet long, and extended to the side of the street. Across the end of the platform above the street there was a fence 3% feet high for the protection of passengers. A train reached the station when the plaintiff was on the street below, and when he was at the top of the stairs which led from the street to the platform, it was standing, or, if started, it was moving so slowly that he did not observe its motion. He walked slowly across the platform and got on the first step of the car, which was then in motion. Before he mounted the second step, his back was struck by the end of the fence, which was 7 inches from the side of the car and about 22 feet from the place where he got on the step.
“No conclusion could have been reached from the plaintiff’s testimony that would have relieved him from the imputation of negligence. There was nothing in the circumstances to make the case an exception to the rule that it is negligence per se to step on a moving train. Nor can it be'said that the plaintiff escaped the risk which he assumed, and was after-wards injured by some negligent act of the railroad company. He was never safely on the train, nor in a position in which his body did not extend at least 7 inches beyond the side of the car during the time he was carried forward 22 feet to the fence. No negligence of the company was shown. There was no sudden start or jar of the car as the plaintiff was getting on, and there was nothing of an unusual character in the construction of the station platform or fence.”
The judgment for defendant was affirmed. See Elliott on Railroads, § 1642; San Antonio, etc., R. Co. v. Trigo, 49 Tex. Civ. App. 523 (101 S. W. 254).
The following cases are cited by plaintiff’s counsel:
In Irvin v. Railway Co., 81 Kan. 649 (106 Pac. 1063, 26 L. R. A. [N. S.] 739), it was held that it was not negligence per se to get on or off a moving train; that, generally, whether it is negligence or not is a question for the jury. In that case the question of contributory negligence was especially pleaded and relied upon as a defense. There was a general verdict for the plaintiff upon all the issues presented, and the court held upon appeal that it was too late to raise the question then. The parties were concluded by the verdict. Two persons got upon the rear step of the rear car, and the plaintiff, being upon the lower step, was prevented from getting upon the other step by reason of the obstacle presented by the other passenger, and he was injured by striking against a truck upon the platform. It was held that the case presented a question for the jury.
In an earlier Kansas case, that of Atchison, etc., R. Co. v. Holloway, 71 Kan. 1 (80 Pac. 31, 114 Am. St. Rep. 462), the person had entered the station and purchased a ticket intending to take a passenger train soon to arrive, and the case holds that such a party acquired the status of a passenger, and it became the duty of the railroad to exercise reasonable care to provide him a safe approach to the.train, and reasonable time and opportunity to get aboard; that the running of a freight train between the station and the passenger train, thus blocking the access of passengers to the passenger train during the time it stopped at the station, was negligence as to the awaiting passenger, who suffered injury by reason of insufficient opportunity to get aboard. That an attempt of a passenger to board a moving train, although attended with some danger, is not, under all circumstances, contributory negligence. It was held that if the speed of the train and the difficulties in the way of boarding it are so obviously dangerous that a person of ordinary prudence would not attempt to get on the train, a passenger who makes the attempt and is injured is guilty of such contributory negligence as would bar a recovery.
In this case, the injured passenger, a strong, able-bodied man, accustomed to getting on and off cars, attempted to board a train moving at the rate of four miles an hour, which he was waiting to take, and which he had not been afforded a reasonable opportunity to get on while it was at rest. The day was clear, and the ground where he made the attempt was smooth. Held, that it cannot be said, as matter of law, that the attempt was so obviously dangerous as to constitute contributory negligence, and that whether there was such negligence was a proper question to leave to the jury. The court said:
“It is the duty of a passenger to be reasonably alert and prompt in boarding a train, but, considering that the freight train concealed the incoming passenger train and blocked the passage from the station to it we cannot say that Holloway was not reasonably prompt and diligent in his efforts to get on board the cars. The stop of the passenger train was very brief —altogether too much so, considering the surrounding circumstances.”
The court quotes the following rule from Thompson on Negligence, § 2995:
“ ‘It cannot be affirmed that a person is guilty of contributory negligence as matter of law from the mere fact that he attempts to board a railroad train while it is in motion. If the train does not stop at the proper stopping place for a sufficient length of time to enable the passenger to get on before it starts, and the passenger, thus coerced by the. negligence of the company, attempts to. board the train while it is slowly moving, and is injured in the attempt, con tributory negligence will not be imputed to him, but ' he will be allowed to recover damages.’ ”
The court also cited Johnson v. Railroad Co., 70 Pa. 357.
It is said in that case that the train had started before the passengers had had sufficient time to get on board, and the plaintiff incumbered with a valise and a number of packages, missed his footing and his arm was crushed by the wheels of the car. It was urged that it should have been declared, as a matter of law, that he was negligent. The court said:
“The fact appears to be clear that a reasonable time for the transfer was not given, and that the plaintiff, with all his effort to make haste, was unable to make the connection in consequence of this want of time. Now, though the train was distinctly in motion, so that a bystander, cool and unconcerned, could see it visibly running on the track, are we to say as a matter of law binding on the jury, that a passenger having a right to go on the train, and seeing himself about to be left improperly by the wayside, is guilty of culpable legal negligence if he should essay to reach his destination, no matter how slow the motion in running might be, or how little danger was apparent to him? He may be guilty of negligence, but of this the jury should judge under the circumstances.”
In Wooten v. Railroad Co., 79 Miss. 26 (29 South. 61), the defendant, a railway company, had tickets for an excursion, but none were on sale in the town where the decedent lived. Decedent, wishing to go, arranged to have tickets from the next station brought to him by the baggagemaster on the excursion train. As soon as the train arrived he took the tickets, signed them as required by the company, and attempted to board the train, which was already moving slowly, and was hurled against a baggage truck, thrown under the cars and killed. His wife, niece, and granddaughter had been helped on board by a friend, and had no time to get their seats before the train started. Held, that the question of decedent’s contributory negligence should have been submitted to the jury. The court said:
“Mr. Wooten’s situation was even more urgent than that of an ordinary passenger. He had arranged for tickets to be brought to him there. They were sent by the company. They were useless until he signed them, which he did as soon as he could, but the train actually started before his family were comfortably seated; before they could get their basket of fruit into the car. Under these circumstances * * * the jury should have been allowed * * * to pass on the question of negligence.”
In Illinois Central R. Co. v. Glover (Ky.), 71 S. W. 630, the question of whether a passenger who got off his train at an intermediate station and undertook, under the direction of the conductor, to board it again while moving, was guilty of contributory negligence was held to be a question for the jury. The court said:
“While there is some conflict in the authorities, the later cases sustain the rule that, where a passenger gets off his train at an intermediate station, and then undertakes to board it, while moving slowly, by the direction of the conductor or servant in charge, he is not per se guilty of negligence; but it is a question for the jury whether, considering the speed of the train, the direction he received, and other circumstances, he exercised proper care.”
Mills v. Railway Co., 94 Tex. 242 (59 S. W. 874, 55 L. R. A. 497). In that case there was evidence that the defendant failed to perform its duties which it owed to the plaintiff. It was claimed that the passenger had been denied the opportunity to get a ticket, and it appeared that by reason of the absence of the ticket agent he was unable to reach the train until it commenced to move. Under those circumstances it was held that it was not negligence per se to attempt to go upon a slowly moving train.
We think that it appears that the cases cited by plaintiff’s counsel are exceptional cases, and do not change the general rule.
It may be said that the cases are uniform in holding that boarding a moving train is at least prima\ facie negligence, and. that in the instant case the plaintiff offered no testimony which showed, or tended to show, any justification or excuse on the part of the deceased. Under the facts in the case and the law applicable thereto, the trial court should have withdrawn the case from the jury, and directed a verdict for the defendant, on the ground of the contributory negligence of plaintiff’s decedent.
This conclusion renders it unnecessary to consider the other assignments of error.
For the error pointed out, the judgment of the circuit court is reversed, and no new trial granted
McAlvay, C. J., and Brooke, Kuhn, Ostrander, Moore, and Steere, JJ., concurred. Bird, J., did not sit. | [
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] |
McAlvay, C. J.
Plaintiff in this case brought suit against defendant board in an action of assumpsit for services claimed to have been rendered by her for the defendant under a contract entered into between the parties for the care, support, and maintenance of Samuel Cole, who was, at the time, a county charge. A trial had in the case resulted in a verdict and judgment in favor of plaintiff. Defendant upon a writ of error has brought the case to this court for review.
The material facts in the case are that Samuel Cole purchased a farm in Van Buren county and became a resident therein as early as 1855. In 1867 he sold this farm, and later, in 1875, purchased a farm in another township, in said county, where he resided until he sold it in 1883 and then removed to Oceana county, where he bought a farm and resided about seven years. He then returned to Van Buren county, where he remained continuously, making his home with his relatives until the time plaintiff, who was his niece, visited him later in the year 1904 and found him sick and without a home, living with her brother. At and before the time the contract out of which this dispute arose was made Samuel Cole was and had been a public charge upon Van Buren county for about one year. He was old, infirm, sick, feeble in mind and body, and entirely unable to wait upon himself or earn a livelihood at the time plaintiff took charge of him. She resided in Tuscola county, Mich., and during this visit to her brother in Van Buren county, in November, 1904, she later saw Charles Barber, then one of the superintendents of the poor of said county, relative to taking Mr. Cole to her home and caring for him. She" did take him a few days afterwards, with the understanding that the matter would be considered by the board at its next meeting to be held December 27th, when a definite arrangement would be made. The term of Mr. Barber expired January 1st following. The result of her interview with Mr. Barber and of a letter written later by plaintiff was that the defendant board, through its secretary, sent her the following letter:
“Paw Paw, Mich., Jan. 26,1905
“Mrs. L. J. Moden,
“Gatestown, Michigan.
“Dear Madam:
“Your letter received and noted. In reply will say that if you are willing to take care of the old man for $1.25 per week we will remit to you once in every three months, commencing at first of last January. If this is all satisfactory let us hear from you at once and oblige.
“M. D. Buskirk, Secretary.”
Under that offer plaintiff kept Mr. Cole until his death on April 5, 1912, at the age of over 98 years. This suit was brought November 29,1911, for services rendered to that date.
On January 31, 1905, the secretary of defendant board again wrote to plaintiff, as follows:
“Yours of recent date at hand. In reply will say that I cannot go back of the quarter ending December 31, 1904, but in the event of death I will stand $15.00 funeral expenses but no more.
“Hoping this will be satisfactory, I am, respectfully,
“M. D. Buskirk.”
Under this agreement payments were made by defendant board according to its terms upon the presentation of bills to the county made out upon blanks furnished by the board, to the amount of $28.25. These facts, as to the agreement made with plaintiff and payments thereon at the rate claimed, are not disputed. The dispute arose upon the claim of defendant board that at the time this agreement was made Samuel Cole was not a resident of Van Burén county, and therefore the county was not responsible for him. Later, after suit was brought, defendant, under the general issue, gave notice of two defenses, viz., ultra vires, and the statute of limitations.
The errors assigned and relied upon by appellant board are grouped as follows:
“First. That the court erred in holding that the contract was not barred by the statute of limitations.
“Second. That the contract was in direct contravention of section 4536, 2 Comp. Laws, and as such was ultra vires and void.
“Third. Errors committed by the court in charging and refusing to charge.”
Relative to the question of whether Samuel Cole was a resident of Van Burén county within the definition of the terms of the statute that he had obtained a “settlement” there which would warrant his becoming a county charge but little consideration is given in defendant’s brief, although upon the trial it appears to have been the principal disputed fact. Upon the trial special questions to the jury were allowed and submitted by both parties. These questions were answered, as follows:
“By plaintiff:
“(1) Did Van Burén county contribute towards the support of Samuel Cole for one year and upwards before the superintendents made the agreement with plaintiff to take him and care for him? Answer: Yes.
■ “(2) Was Samuel Cole living in Van Burén county at the time of the agreement? Answer: Yes.
“(3) Had Samuel Cole lived in Van Burén county for at least 2½ years after he sold his property in the north? Answer: Yes.
“Submitted by defendants:
“(1) Did Samuel Cole maintain himself for one year after his entry into Oceana county in 1883? Answer: Yes.
“(2) On Samuel Cole’s leaving Oceana county and returning into Van Buren county did he maintain himself for one year after he re-entered Van Buren county? Answer: Yes.
“(3) Was Samuel Cole old, sick, infirm, crippled', or otherwise incompetent to earn a livelihood at the time he entered Van Buren county on his return from Oceana county? Answer: No.
“Signed by all the jurors.”
These special findings of fact by the jury are all against the contention of defendant board and dispose of the claim that under the law Samuel Cole was not entitled to public support as a county charge in Van Buren county.
First. The first contention in appellant’s brief is that the court erred in holding that the contract was not barred by the statute of limitations. The record does not show that during the trial mention was at any time made on the part of the appellant that it relied upon the statute of limitations. No objection to the admission of testimony was made upon that ground. It was not included in the motion made at the close of plaintiff’s case for a directed verdict, neither was it mentioned on a like motion made at the close of the case. It is not referred to in the requests to charge and does not appear in the record other than in the plea, until a motion was made for a new trial, where it appears as a reason for granting the same. In our opinion defendant waived its right to rely upon its plea of the statute of limitations. It does not appear from the record that the court had any knowledge that there was such a notice given with the plea., To hold that a trial court may be charged with having committed error upon a proposition that was not with, in his knowledge and not brought to his attention until after a verdict and judgment entered in a case tried. before Mm would be most unfair and unjust, particularly when, as in the instant case, the appellant has abandoned in its brief all reliance upon error assigned for denying the motion for a new trial. For the rea-, sons stated, our conclusion is that no error was com-, mitted in that regard.
Second. The next contention is that the contract' was ultra, vires and void because in contravention of. section 4536, 2 Comp. Laws. This section nrovides:!
“No person shall be removed as a pauper from any city or township to any other city or township of the same or any other county, nor from any county to any other county, but every poor person shall be supported in the township, city or county where he may be, as follows:
“First. If he has gained a settlement in any township or city in such county, he shall be maintained by such township or city;
“Second. If he has not gained a settlement in the county in which he shall become poor, sick or infirm he shall be supported by the superintendents of the poor at the expense of the county;
“Third. If such person be in a county where the distinction between township and county poor is abolished, he shall in like manner be supported at the expense of the county,” etc.
In the instant case it is, not disputed that Samuel Cole, if a public charge, was a proper person to be cared for by the county of Van Buren. The section invoked and relied upon by defendant is a subdivision of the Michigan law which provides for “the support of poor persons by the public,” and this subdivision is entitled, “Of the support of the poor of townships.” It has always been the policy of this State to support and care for the unfortunate poor at public expense. The statutes making such provision divide such public charges into two classes, those to be maintained at the charge of a county, and those to be maintained at the charge of a township or city. Provision is also made that all such persons may, by action of the proper officers, be made county charges. It is apparent from a careful reading of section 4536, supra, and other sections of the chapter providing for support of poor persons by the public, that the legislative intent was to require the expense of the support of a public charge to be borne by the township, city, or county where such poor person had obtained a “settlement” which would entitle him or her to such support and to prevent the shifting of that burden by a transfer of the poor persons from one township or county to another. But it is clear that the legislative intent was concerned in determining by which municipality expenses should be borne, rather than where the individual should be placed. In the instant case, under the facts as found by the jury, the provision of the statute is mandatory that Samuel Cole should be cared for, supported, and maintained at the charge of Van Buren county. It is undoubtedly the general intendment of this law which makes provision for these unfortunate people that they should usually be provided for as county charges in the county poorhouses. We find, however, no provision in this law as far as the county poor are concerned that a board of superintendents of poor, if in the exercise of its judgment it should be considered for the best interests of an individual under its charge to be cared for outside of a county poorhouse, within or without the limits of the county, is prohibited from so doing. For example, in the instant case Samuel Cole, of the age of 92 years, who from the evidence appears to have been infirm, sick, disabled, and enfeebled in body and mind and almost gone, so as to be unable to maintain himself, and also unable to attend to his physical needs, is put in the care and custody of plaintiff, who was his niece, by the defendant board to be kept and cared for by her in her home in Tuscola county for the small sum of $1.25 per- week. Can it be said that such action on the part of this board was ultra vires and in contravention of this statute ? During these years from January 1,1905, to November 29, 1911, she has been discharging a duty which the superintendents of the poor of Van Burén county were bound to discharge, and which in our opinion they could agree with her to discharge beyond the limits of Van Burén county. Our conclusion is this contract was not ultra vires.
Third. The errors claimed under this subdivision of appellant’s brief relate to the charge of the court as given and in refusing to charge as requested. But three requests to charge were submitted on the part of appellants. The first of these requests was for an instructed verdict in favor of defendant. The second, that it was not incumbent upon defendant board to seek to impose a liability upon Oceana county under the facts; that plaintiff could have instituted such proceeding. The third was a repetition of the claim that the contract was ultra vires and therefore void. These requests under the law and the evidence shown in the record were properly refused. We have examined the portions of the charge of the court which are claimed to have been erroneous, and find that they are brief excerpts taken from this charge. A careful reading of the entire charge discloses that the court committed no error except in what we consider an oversight in that portion which treats of damages, which will be stated later in this opinion.
Errors assigned and relied upon relative to the refusal of the court to grant a new trial are not discussed, although barely referred to, in defendant’s brief. We find no error in the denial of a new trial.
In appellant’s supplemental brief the attention of this court is called for the first time to the fact that in the charge of the court to the jury relative to the amount of damages no credit was given defendant board for $28.25, the amount of the payments made by it to plaintiff under this contract. During the trial there was no dispute by either party but that this amount had been paid by defendant, and twice in the charge of the court it is so stated and recognized. It is true that later in the charge the jury was instructed relative to the assessment of damages, as follows:
“And if you reach that question the plaintiff in this case would be entitled to recover at the rate of $1.25 per week from January 1, 1905, to November 29, 1911, together with interest,” etc.
There is no doubt but that this was a clear oversight. The court should have added the words, “less the payments, made by defendant to plaintiff, of $28.25.” This matter was.not noticed by counsel for defendant, or called to the attention of the court. No error was assigned upon it. It is therefore clear that it was not discovered until after argument of the case in this court. However, this as a matter of justice should be corrected.
This is easily done by computing the interest on this amount of $28.25 at 5 per cent, from the 1st of January, 1906, to June 10, 1913, the date of the verdict and judgment, and deducting the amount and interest, being $38.88, from the amount of the verdict, which leaves the sum of $497.18, upon remitting which amount the judgment of the circuit court' will be affirmed, with costs. Otherwise reversed, and a new trial ordered.
Brooke, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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] |
Moore, J.
The plaintiff has an ordinance reading in part as follows:
“Sec. 2. It shall be unlawful for any railroad company, owning or operating any railroad running into or through the city of Owosso, to allow any engine, car or train of cars to remain standing on its tracks at the crossing of any street within the city of Owosso, so as to obstruct travel upon any sidewalk or street for a longer period than five minutes at one time.”
_ “Sec. 5. Every person violating the terms of sections 2, 3 or 4 of this ordinance shall upon conviction thereof, be punished by a fine not exceeding $50, in addition to the costs of prosecution, or by imprisonment in the county jail of Shiawassee county for a period not exceeding 60 days, or by both such fine and imprisonment, in the discretion of the court.”
It is the claim of the plaintiff, and there is testimony tending to support the claim, that upon the 20th day of October, 1913, in the forenoon, a freight train upon the tracks of the Michigan Central Railroad Company passed partially over the crossing on West Main street, in the city of Owosso, and stopped in such a manner as to completely block the crossing. West Main street is a paved business street, and just west of the Michigan Central tracks, upon the south side of the street, is situated the fire station house of the Owosso fire department. That department received a call of fire and in the usual manner answered the alarm. The fire was east of the Michigan Central tracks, and it was necessary for the fire department to cross the Michigan Central tracks on West Main street. The wagon passed out into the street, but was obliged to stop because of the obstruction of the train of cars on the Michigan Central Railroad. It is claimed the train obstructed the crossing eight minutes or more.
On October 21, 1913, a summons was issued by one of the justices of the peace at Owosso, for defendant, in a plea of trespass on the case upon promises, to plaintiff’s damage $500 or under. On the return day each party appeared by its attorney, and plaintiff declared orally in an action of debt for the penalty of $50 or under by virtue of the ordinance referred to.
Defendant pleaded specially, and asked that the case be dismissed because:
(1) That the ordinance was intended to make the offense criminal, and did not authorize an action of debt, nor the collection of a penalty.
(2) No provision was made for the punishment of an individual for the violation of said ordinance, and it cannot be applied to corporations as a corporation.
(3) The so-called ordinance, authorizing this or any proceeding for the blocking of crossings or highways, is in contravention of the statutes of this State.
(4) The city of Owosso has no power to sue for or collect a penalty in its own name, for the reason that the statute provides that the action must be brought in the name of the people, by the prosecuting attorney of the county, upon the request of the authorities of the city.
The court denied the motion to dismiss, and defendant pleaded the general issue. The case was tried. The justice found the defendant guilty as alleged in the declaration and assessed damages against defend ant in the sum of $30 and costs. The defendant took an appeal to the circuit court, where later the cause cam'e on for trial before a jury. Defendant objected to the introduction of the ordinance, and renewed the objections made in the justice’s court, which objections were overruled. The trial of" the cause then .proceeded, and the jury returned a verdict in favor of the plaintiff, finding the defendant guilty as alleged in the declaration and fixed the fine at $50. Whereupon judgment was duly entered. The case is brought here by writ of error.
Appellant’s counsel calls attention to section 6301, 2 Comp. Laws (3 How. Stat. [2d Ed.] § 6656), which forbids a railroad company from obstructing streets and highways for more than five minutes, and providing a penalty therein of $25, and insists the ordinance is in contravention to section 6301, for the reason that the statute provides for a penalty of $25, and the ordinance provides for a fine of not to exceed $50.. We think a complete answer to this contention is found in 1 Comp. Laws (2 How. Stat. [2d Ed.] § 5695). Section 3173 provides:
“The council shall have supervision and control of all public highways, bridges, streets, avenues, alleys, sidewalks and public grounds within the city, and shall cause the same to be kept in repair and free from nuisance.”
Section 3183 provides:
“The council shall have the power to prohibit and prevent obstructions and incumbrances in, and encroachments upon the public highways, streets and alleys of the city and to remove the same, and to punish those who shall obstruct, incumber, encroach or maintain any encroachments, upon or in any such highway, street or alley.”
Section 3186 provides:
“The council may regulate the use of the public highways, streets, avenues and alleys of the city, subject to the right of travel and passage therein. * * * And to prohibit, prevent, remove and abate all nuisances therein, and to require the authors and main-tamers thereof to remove the same and to punish them; and generally to prescribe and enforce all such police regulations over and in respect to the public streets, as may be necessary to secure good order and safety to persons and property in the lawful use thereof.”
Appellant’s counsel insists, however, that even if the ordinance is valid the plaintiff has mistaken its remedy. We quote from the brief:
“An ordinance, like a statute, must be strictly construed. The ordinance in question designates a procedure in case of its violation of a purely criminal nature. It is not a case where the charter provides for the collection of a fine imposed under such an ordinance by suit where it is not paid, but the fact that we wish to emphasize is that the ordinance expressly designates the method of procedure by appropriate terms which can only refer to the authorization in the charter of procedure of the character of a criminal prosecution and at no place, inferentially or otherwise, provides for the bringing of a suit for the collection of a fine in advance of the procedure outlined by the ordinance. We are not dealing with a case where the ordinance imposes a penalty and leaves the collection of the penalty to the general authorization in the charter. The trouble has been that the court and the attorney for the plaintiff have been unable to appreciate the legal difference between a fine and a penalty, treating the terms as one and the same, and the conclusions of law based thereon cannot help but lead to improper deductions and conclusions. * * * The word ‘person’ in the statute applies to corporations. Subdivision 12, § 50, 1 Comp. Laws; Chicago, etc., R. Co. v. Ellson, 113 Mich. 30 [71 N. W. 324]; Turnbull v. Lumber Co., 55 Mich. 387 [21 N. W. 375]; Bush v. Sprague, 51 Mich. 41 [16 N. W. 222]. It could be brought into court in a criminal case by summons served upon its officers, trial had, and, if convicted, could be fined. Then the fine could be collected, if not paid, by an action in debt or assumpsit. But no such procedure was taken in this case.”
It already appears that the council was authorized to pass the ordinance.
It is conceded that the corporation could not be imprisoned, though section 5 of the ordinance provides for both fine and imprisonment in case of violations of the ordinance. Section 3090, 1 Comp. Laws (2 How. Stat. [2d Ed.] § 5612), reads:
“(3090) Sec. 2. Whenever a pecuniary penalty or forfeiture shall be incurred for the violation of any ordinance, and no provision shall be made for the imprisonment of the offender upon conviction therefor, such penalty or forfeiture may be recovered in an action of debt, or in assumpsit; and if it be a forfeiture of any property, it may be sued for and recovered in an action of trover, or other appropriate action. Whenever a corporation shall incur a penalty or forfeiture for the violation of any ordinance, the same shall be sued for in one of the actions aforesaid.”
Without stopping to refine words, we think section 5 of the ordinance provides a penalty, as the word is ordinarily understood, for its violation, and that the statute we have just quoted justifies the bringing of the action in the way it was done. A statute having similar provisions was construed in Yerkes v. Smith, 157 Mich. 557 (122 N. W. 223). See, also, 3 Comp. Laws, § 9805.
We have examined the other assignment's of error, but do not deem it necessary to discuss them.
Judgment is affirmed.
Brooke, C. J., and McAlvay, Kuhn, Stone, Bird, and Steere, JJ., concurred with Moore, J. | [
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Bird, J.
The relator commenced an attachment suit against Dale A. Smith and Clarence Smith, and caused the same to be levied upon their lands lying in the county of Ionia. .The ground alleged in the affidavit for the issuance of the writ was that defendants were nonresidents of the State. The defendants subsequently appeared by counsel and filed their plea to the merits, and the case was noticed for trial. After the case was at issue and ready for trial, defendants filed a motion to quash the attachment for the reasons:
(1) That more than the statutory time had intervened between the making of the affidavit and the issuance of the writ; (2) that the description of the premises in the certificate of levy and inventory was too uncertain and indefinite.
Upon a hearing of this motion, the respondent quashed the attachment levy, giving as his reason for so doing:
“That the said attachment levy in said cause is invalid, and that said plaintiff has not a good and legal cause for suing out said writ.”
The order further provided that:
“It further appearing that said defendants have-appeared in said cause, and the court having jurisdiction of the parties by reason thereof, therefore it is ordered that said suit stand as if personal service had been had.”
It also appeared by the return of respondent that the attachment levy was quashed by reason of the defect in the affidavit pointed out by defendants in their motion. The relator asks this court for a writ of mandamus to compel the respondent to set aside the order and reinstate the attachment levy. Relator’s argument impliedly admits that the objection would have been well taken if it had been raised seasonably, but he insists that after the defendants appeared, filed their plea, and the case had been noticed for trial, the defect was thereby waived. The question, therefore, presented for our consideration is whether, under such, circumstances, the defendants have waived their right to make this objection.
It is proper practice in this State to bring to the attention of the trial court by a motion to quash such defects as are apparent upon the face of an affidavit for attachment. Roelofson v. Hatch, 3 Mich. 278.
But in order to make the motion effective it must be made before the defendant enters his general appearance and pleads to the merits; if delayed until after that time, the defect will be deemed to have been waived. 1 Green’s Michigan Practice, § 427; 1 Stevens’ Michigan Practice, § 17; Crane v. Hardy, 1 Mich. 56; Manhard v. Schott, 37 Mich. 234; Payment v. Church, 38 Mich. 776; Bryant v. Hendee, 40 Mich. 543; Dailey v. Kennedy, 64 Mich. 208 (31 N. W. 125); Gunn Hardware Co. v. Denison, 83 Mich. 40 (46 N. W. 940); Graham v. Cass Circuit Judge, 108 Mich. 425 (66 N. W. 348).
Counsel for respondent cites the case of Hyde v. Nelson, 11 Mich. 353, in support of his contention that there was no waiver. That case is not in point; it has reference to applications for a dissolution of attachment proceedings under the statute. 3 Comp. Laws, § 10595 (5 How. Stat. [2d Ed.] §13400). If it is desired to contest the truth of the grounds alleged in the affidavit for the issuance of the writ, resort must be had to this statute. Bower v. Town, 12 Mich. 230. And inasmuch as there are no restrictions in the foregoing statute as to when a petition for dissolution may be filed, it is held in Hyde v. Nelson, supra, that an application may be made and granted after the defendant has appeared and pleaded to the merits, and in a later case it is held that a petition to dissolve may be granted even after judgment.’ Gore v. Ray, 73 Mich. 385 (41 N. W. 329). But this rule does not apply where the defect in the affidavit is seasonably brought to the attention of the court by a motion to quash, as was done in the instant case. Our conclusion is that the defendants waived their right to take advantage of the defects in the affidavit by entering a general appearance and filing their plea to the merits.
2. It is said the description of the premises in the inventory is too vague and uncertain to establish a lien upon the property. The inventory is in the following form: .
“State of Michigan,
“County of Ionia — ss.;
“By virtue of the annexed writ of attachment, wherein the John D. Gruber Company, a foreign corporation is plaintiff, and Dale A. Smith and Clarence R. Smith are defendants, I have this day seized certain lands, tenements, goods, chattels, moneys, and effects, of which the following is an inventory made by me, viz.:
“Inventory. All that certain piece and parcel of land known and described as follows: The south twenty-five (25) feet lot No. sixty (60) of the original plat of the village of Portland, same being the building now occupied by H. F. Caswell. Four thousand five hundred dollars ($4,500.00).
“Dated this 10th day of January, A. D. 1913.
“Glenn R. Van Geisen,
“Deputy Sheriff of Ionia County.”
The specific objection is that the county and State are omitted. If we look only to the description, there appears to be some force in the objection, but when it is read in connection with the officer’s certificate which accompanied the inventory, it becomes reasonably certain that “the village of Portland” referred to is located in Ionia county and State of Michigan. It appears from the certificate that the inventory was made by a deputy sheriff of Ionia county, and that such official action took place in Ionia county and State of Michigan. This sufficiently identifies the county and State. Russell v. Sweezey, 22 Mich. 235; Smith v. Brown, 34 Mich. 454; Slater v. Breese, 36 Mich. 77.
We are of the opinion that the order setting aside the attachment levy should be vacated, and the writ will issue as prayed.
McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred. | [
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] |
Steere, J.
This case presents the single question of whether the words “the First National Bank,” found in the following promissory note, designate its place of payment under the law of negotiable instruments :
“$900. Hornell, New York, July 16th, 1909.
“On June 1st, 1913, after date, for value received, I promise to pay Calkins & Augsbury, or order, nine hundred dollars at the First. National Bank, with interest at 6 per cent, per annum, interest payable annually.”
Said note is signed by nine makers, and, so far as material here, indorsed on the back:
“Pay to John M. Finch, or order.
“Calkins & Augsbury.”
It is sufficient to state without details that when this paper fell due it was presented for payment at the First National Bank of Hornell, N. Y., dishonored there, protested, notice of such dishonor and protest timely mailed to and received by defendants at their place of business in this State, in conformity with the prerequisites essential to establish their secondary liability as indorsers, provided the presentment and demand for payment were made at the proper place.
At the trial of this case in the circuit court, upon the conclusion of the plaintiff's testimony, counsel for defendant moved the court to direct a verdict of no cause of action and enter judgment accordingly, on the ground that it was not shown said note had been properly presented for payment and dishonored, which motion was granted and judgment entered according to such ruling.
Aside from a minor question of pleading, which we do not regard as controlling or demanding review, defendants’ contention, as briefed and orally argued, is that the note was never dishonored nor notice thereof given defendants, so as to hold them liable as indorsers, because no place of payment is sufficiently specified in said instrument; and, in order to hold the indorsers, it was incumbent upon plaintiff to present said instrument, when due, and demand payment at either the usual place of business or residence of the makers, or to them wherever they could be found, or at their last known place of business or residence, as required by the negotiable instrument law of the State of New York, which is the law governing this case, inasmuch as the note was given and is presumably payable in that State. Requirements of the New York law as to presentment are in harmony with those which almost universally obtain, and substantially the same as the negotiable instrument statute which has been adopted in many of the States. The pertinent part is as follows:
“Seq. 133. Place of Presentment. Presentment for payment is made at the proper place:
“1. Where a place of payment is specified in the instrument and it is there presented.
“2. Where no place of payment is specified, but the address of the person to make payment is given in the instrument and it is there presented.
“3. Where no place of payment is specified and no address is given and the instrument is presented at the usual place of business or residence of the person to make payment.
“4. In any other case if presented to the person to make payment wherever he can be found, or if presented at his last known place of business or residence.”
It must be conceded that, if the place of payment is not specified in this instrument, plaintiff cannot recover, and we need spend no time upon the provisions relative to how presentment should be made in other cases.
Upon the trial, no evidence was introduced to supplement what appears upon the face of the instrument as to the place of payment, except by the following stipulation, introduced in connection with depositions of the New York notary, who protested the note, and testified what was done in that connection:
“It is conceded that the city of Hornell is situated and located in the county of Steuben, State of New York, and that the First National Bank of Hornell is also located and situated in that city.”
The note is not in terms which indicate a purpose to make it payable generally. The intent to make it payable at a bank is clearly stated, and the name of the bank is given. The only infirmity is a failure to state distinctly in the body of the instrument where the bank is located, or what “First National Bank” is meant. The language is not ambiguous. The most to be claimed is that it is indefinite. Though a name is stated, it can well be urged that, standing alone, such name is not sufficiently definite and distinguishing, for it is a matter of common knowledge that there are many first national banks scattered throughout the country.
The primary rule of construction is to determine, not alone from a single word or phrase, but from the instrument considered as a whole, the true intent of the parties, and to interpret the meaning of a questioned word, or part, with regard to the connection in which it is used, the subject-matter, and its relation to all other parts or provisions. In the absence of anything to the contrary, a note is held to be made where it bears date; and in Taylor v. Snyder, 3 Denio (N. Y.), 145 (45 Am. Dec. 457), it is said:
“Although the date of a note does not make it payable at that place, still the date may, in one respect, be very important. It raises a presumption that the maker resides there, although it is only presumption. 3 Kent, 96, 97; Lowery v. Scott, 24 Wend. (N. Y.) 358 (35 Am. Dec. 627); Galpin v. Hard, 3 McCord (S. C.), 394 (15 Am. Dec. 640).”
In Baily v. Birkhofer, 123 Iowa, 59 (98 N. W. 594), where the maker of a note promised to pay the sum named at “the First National Bank,” it was said:
“Where no place of payment is named in a note, it is presumed to be payable where the maker resides; and, where a bank is named, it will be presumed, in the absence of language appearing on the face of the note to the contrary, that it was at the maker’s home town.”
A similar question to this arose in Hazard v. Spencer, 17 R. I. 561 (23 Atl. 729). In that case the note under consideration was dated at Providence, R. I., and made payable “at bank.” The maker resided at Bridgewater, Mass. Demand for payment was made, when the note fell due, at a bank in Providence, R. I., and the paper protested in the customary way. An indorser thereafter denied liability because no legal presentment for payment and demand on the maker had been made. In holding he was not released from liability, the court said:
“But as the note in suit not only bears date at Providence, but is also made payable ‘at bank,’ we think the only fair presumption is that it was intended to be made payable at Providence, and hence that the knowledge of the holder that the maker resided elsewhere has no bearing upon the case, * * * for we can conceive of no reason for the making of a note payable ‘at bank,’ unless it be thereby intended to make it payable at some bank in the city or town where the note bears date.
“Moreover, the note being made payable ‘at bank,’ the maker was under no obligation to pay it at any other place, and hence a refusal to pay upon presentment elsewhere would be no dishonor upon which the indorser could be charged.”
In this case the note was not only made payable at bank, but at a bank named, and there was a bank of the name given in the city where the note was dated.
We conclude that, by natural inference, fair construction of the instrument consideréd in its entirety, and reasonable interpretation of the name given in the connection used, the note in question was made payable at the First National Bank of Hornell, N. Y.
The judgment is reversed, and a new trial granted.
McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Bird, and Moore, JJ., concurred. | [
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] |
Stone, J.
This is an action on the case to recover damages for personal injuries claimed to have been sustained by the plaintiff while a passenger on defendant’s Myrtle line car, by reason of the car starting while she was in the act of alighting from the rear step. The accident occurred on July 11, 1912, about 8 p. m., at Woodward avenue and Congress street, in the city of Detroit. The plaintiff was 62 years of age at the time, and was a widow. The trial resulted in a verdict and judgment for the plaintiff, in the sum of $500 damages. The plaintiff made a motion for a new trial, on the ground that the verdict was inadequate in amount under the testimony, and was against the great weight of the evidence. The motion having been' denied, the plaintiff has brought the case here upon writ of error, and by appropriate assignments of error the same question is presented, and it is urged that the court erred in not granting a new trial, for the reasons above stated. It is also claimed that the court erred in its charge to the jury, in not specifying for what damages the plaintiff would be entitled to recover.
A careful reading of the evidence discloses that the main issue at the trial was the extent of the plaintiff’s injuries resulting from the fall. She testified that she was thrown with great violence from the car, and, after being dragged the length of the car, fell on her left side, breaking her left arm at the elbow joint, and that she has suffered paralysis of the left side, so that she cannot walk without dragging her left foot; that her left eye is nearly blind, and the hearing of her left ear is greatly diminished; all of which she claims to have been the result of the injury complained of, and that she was in perfect physical condition before said injury. There was medical and other testimony tending to support plaintiff’s claim. It also appeared that she employed a physician. The length of time the physician treated her appears in the evidence, but the value of his services was not shown by any testimony. It also appeared that while she was being treated by the physician she was at the house of a friend, whose charges for nursing and-room were $75.
On the part of the defendant there was evidence tending to show that the plaintiff was a large, heavy woman, decrepit, and not active in her movements, and that she had been assisted both in getting on and off the ear; and there was medical testimony on the part of the defendant describing plaintiff’s condition as due solely to arterial sclerosis. It also appeared that the plaintiff had a blood pressure of 225, which in a woman of .her age, it was claimed, was exceedingly high.
The testimony of the plaintiff’s physician as to the injury of the arm was to the effect that no fracture was discovered at the time, but that it had developed that there was some fracture of the elbow joint which had impaired the use of that joint. He testified:
“I think, if she does not attempt to move it beyond its range of easy motion, there should not be very much pain.”
The trial court, in denying the motion for a new trial, among other things, said:
“The defendant’s contention is that the plaintiff’s ailments are of long standing, that she is a prematurely old woman, that the hardening of the arteries now evident is of slow growth, and could not develop in so short a time from the injuries received. Her previous walk, the way in which she had been helped on the car, were facts presented by the defendant to the jury for its consideration, and in support of the contention advanced by the defendant and its medical expert, that it was not responsible for the serious condition of the plaintiff.
“In his talk to the jury, defendant’s, counsel admitted the negligence of the company, but insisted that plaintiff’s, condition was not one which could be traced to the defendant. This question at issue, and almost the only one, was fairly presented to the jury, and its verdict would indicate that it reached the conclusion that defendant’s contention was correct. The theories of plaintiff and defendant were presented as fairly and as fully as counsel desired, and no good reason has been given for undoing the work now done. The motion for a new trial is denied.”
In the light of the testimony and of the issue presented, we are not able to say that the verdict was inadequate, or that it was against the overwhelming weight of the evidence. The issue seems to have been fairly and fully presented to the jury, and we cannot say that there was any error in denying the motion for a new trial.
In referring to the charge of the court, it should be stated that the plaintiffs counsel presented no requests to charge upon the subject of damages. Upon that subject the court charged the jury as follows:
“On the question of damages you are to find out by the same preponderance of evidence what injuries have been established as being the result of this particular accident, if you charge the accident to the responsibility of the Detroit United Railway. If you do not, why then, of course, you need not go into the question of damages. Now, in that respect, you are to give the plaintiff compensation — if you come to that question — for all of the injuries that she has suffered, for all of the injuries that she is suffering now, and for all that she will suffer in the future, that grow out of injuries received at that particular time. She is entitled to damages for past and present and future suffering, if you find that she is entitled to damages, and if you find that those injuries are the result of this particular accident. * * * So that the principal question you have for your disposition is: What were the injuries that resulted from this accident? When you find that, if you find that the injuries came as a result of this accident, you are to allow her damages as has been indicated here.”
Counsel complains of this charge, and cites the following cases: Barton v. Gray, 57 Mich. 622 (24 N. W. 638); Wright v. Railway Co., 77 Mich. 123 (43 N. W. 765); Jageriskey v. Railway, 163 Mich. 631-634 (128 N. W. 726).
In Barton v. Gray, supra, at page 631 of 57 Mich. (24 N. W. 641), Justice Champlin, in speaking for this court, said:
“It does not appear from the record that any requests were presented on behalf of the defendant for specific instructions to the jury. Undoubtedly it is the duty of the court to present to the jury the substantial issues in the cause, and to state to them the principles of law governing the rights of the parties, whether any specific instructions are requested by counsel or not. This duty was performed by the trial judge in this case. His instructions covered all branches of inquiry under the issues made by the pleadings; and if counsel desired more full or specific instructions upon any particular point, it was his duty to frame a special request to the court to charge as desired. Omitting or neglecting to do so, he will be deemed to be satisfied with the sufficiency of the instructions as given, and an exception based upon the want of sufficiency on particular points of law cannot be assigned as error.”
And judgment of the lower court was there af- . firmed.
An examination of Jageriskey v. Railway, supra, will show that there were requests to charge on the part of the plaintiff which were not given by the trial court, nor was their substance given. It was under such circumstances that this court said:
“It was the duty of the trial court to instruct the jury as to the law applicable to the case. * * * In this instance the court not only failed to cover the question of damages in his general charge, but refused to give the unobjectionable request of counsel on that subject. We think the refusal of the trial court to give the request was error.”
As appears from the court’s charge in the instant case, the substantial issues in the cause were presented to the jury by the trial court in appropriate language. The verdict was undoubtedly intended to cover the injury to the arm and the expense of the nursing, and we cannot say that it was not adequate. The jury must have found that the other condition of the plaintiff was in no way related to the accident.
In our opinion, no good reason appears why the verdict and judgment of the court below should be disturbed.
The judgment is therefore affirmed.
McAlvay, C. J., and Brooke, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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] |
Moore, J.
This case originated in justice’s court. It was appealed to the circuit court. From a directed verdict in favor of the plaintiff in the sum of $15.90, the case is brought here by writ of error.
The parties to this litigation are neighboring farmers, and prior to the commencement of this suit they purchased a spraying outfit; each paying one-half of the purchase price. Some time in the spring of 1912, the parties became dissatisfied with the joint ownership of the spraying outfit, and it is the claim of the plaintiff that he sold his interest in the outfit to the defendant for $17.50, to be paid as soon as defendant got his creamery check, which would be in about 10 days; that after that time expired a demand was made for the money, and, as it was not paid, this suit was begun. The plaintiff and several witnesses gave testimony tending to show the truth of his claim.
On the part of defendant it was claimed that no agreement in fact was made. The defendant was sworn as a witness on his own behalf. On the cross-examination he testified in part as follows:
“I didn’t intend to let him have that sprayer unless we agreed — he pay me for it — unless he would pay me for my interest in it. I told him he would pay for my part or he could pay me, as we couldn’t have the sprayer together any more because we couldn’t get along.
“Q. You wouldn’t let him take it away from there, then, without him buying your interest out?
“A. No, sir. I wanted to know who was going to have that sprayer.
“Q. That sprayer was worth $30 or $35, was it?
“A. It was worth about $25 or $30 to me.
“Q. You made an agreement to pay $15?
“A. Yes.
“Q. You was willing to pay $30 for it?
“A. Yes.
“Q. You haven’t paid that, have you?
“A. I made an agreement for it.
“Q. You made an agreement to pay $15?
“A. Yes.
“Q. But you haven’t paid it nor any part of it, nor haven’t made any tender of it in court, have you?
“A. No, sir.”
At the close of the testimony the attorney for the plaintiff said:
“For the purpose of shortening this thing up, we will waive argument and ask the court to direct a verdict in favor of the plaintiff for the sum of $15.”
The judge then directed a verdict in the sum of $15 and interest.
The attorney for the appellant insists the court erred in directing a verdict for the plaintiff. We do not feel called upon to spend very much time in trying to demonstrate it was not reversible error for the trial court to direct a verdict in favor of the plaintiff for an amount the defendant testified he agreed to pay.
Judgment is affirmed.
McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Bird, and Steere, JJ., concurred. | [
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Bird, J.
The plaintiff brought this suit under the civil damage act (Act No. 313, Pub. Acts 1883), § 20 (2 Comp. Laws, § 5398; 2 How. Stat. [2d Ed.] § 5074)., against 47 Kalamazoo saloon keepers and their surety, the Michigan Bonding & Surety Company, to recover damages for the loss of her support, etc., occasioned by the intemperate habits and death of her husband, Louis P. Schnell.
The declaration was demurred to by all of the defendants. The grounds of demurrer are numerous, but reliance is principally placed upon the grounds :
(1) That the declaration failed to state a cause of action against the defendants, either jointly or severally.
(2) That it is bad for duplicity.
(3) That the allegations as to the element of time are too indefinite and uncertain to enable the defendants to make ready their defense.
1. The declaration shows that plaintiff was the legal wife of Louis P. Schnell; that after their marriage in July, 1891, he was a kind and indulgent husband, and provided support for her until “shortly after May 1, 1905,” when he began drinking intoxicating liquors to excess; that the habit grew on him until he became a common drunkard; and that later, in October, 1911, he died as a result of such intoxication. The declaration then sets out in detail the period when each defendant was engaged in the saloon business in the city of Kalamazoo, the approval and filing of his bond, also the location of his business, and, if his surety was the defendant the Michigan Bonding & Surety Company, that fact is stated. It then alleged that: intoxicating liquors to excess, and ultimately made a common drunkard of the said Louis P. Schnell; that after the said Louis P. Schnell was made a common drunkard by the said defendant saloon keepers and the other saloon keepers hereinbefore named, they continued and, knowing him to be a common drunkard, and knowing that he became a common drunkard through the unlawful sales, they continued to sell him intoxicating liquors from day to day and from week to week, until his condition in that regard grew constantly worse.
“Shortly after May 1, 1905, the said Louis P. Schnell began to use intoxicating liquors to excess; which they, the said defendant saloon keepers and the other saloon keepers hereinbefore named, by their agents, servants, bartenders, and by themselves, then and there sold and continued to sell him, until the said Louis P. Schnell became and was an habitual user of
“And plaintiff further avers that she has often requested the said defendants and the other saloon keepers hereinbefore named not to sell, and has forbidden them selling intoxicating liquors to her husband, Louis P. Schnell; that the said saloon keepers and each of them, wholly disregarding her request, continued to sell and did sell thereafter intoxicating liquors to her said husband, by themselves, their agents, servants, and bartenders, thereby causing him to become an habitual drunkard as above set forth.
“Plaintiff further avers and expressly charges that the said saloon keepers and liquor dealers, well knowing that the said Louis P. Schnell had a wife, and that he was a person in the habit of getting intoxicated, through their agents, servants, and bartenders and by themselves, sold and continued to sell him intoxicating liquors; that they, the said saloon keepers and liquor dealers, well knowing the premises aforesaid, sold the said Louis P. Schnell intoxicating liquors, notwithstanding the fact that they knew he was a person in the habit of getting intoxicated, and that such sales were unlawful, and that he had a wife dependent upon him for her support and maintenance.”
Following these allegations are allegations of the capacity of her husband to earn money, the business in which he was engaged, and the disgrace, poverty, and loss of support which plaintiff suffered by reason of such wrongful sales.
These allegations are sufficient, if proven, to show that the defendants contributed, by illegal sales, to her husband’s downfall, and stated a case within the statute against them, jointly.
2. It is said that the declaration is duplicitous because it alleges sales to a person when intoxicated, to a person in the habit of becoming intoxicated, and sales making the person a common drunkard. When such allegations have reference to sales made to a single individual, and such sales are averred to have contributed to produce a certain result, namely, the making of a common drunkard of that individual, the declaration is not thereby made duplicitous.
3. Complaint is made that the declaration does not inform the defendants with reasonable certainty when the several material acts therein charged took place, and by way of specification it is asserted that no date is fixed when any illegal sale was made to plaintiff’s husband. The common-law rule of pleading requires the declaration to state “a time when every material, traversible fact happened generally.” 31 Cyc. p. 105. The averment of illegal sales by the defendants is a material and important averment in this declaration, and a reasonable compliance with the rule would require the time to be stated when they or some of them were made. Plaintiff does not contend otherwise, but meets this objection by stating that the fact is alleged under a continuendo. Such an allegation is permissible under a former holding of this court. Wood v. Lentz, 116 Mich. 275 (74 N. W. 462). But if we concede that it is so alleged, the time of the unlawful sales should be fixed between two dates, and that has not been done. The declaration states that “shortly after May 1, 1905, the said Louis P. Schnell began to use intoxicating liquor to excess,” and that the defendants sold and continued to sell to him until he became an habitual user of intoxicating liquor to excess. This allegation falls short of alleging the date of illegal sales, because after he began using intoxicating liquor to excess, and before he became an habitual user of them, the sales to him were not neces sarily unlawful. “Shortly after May 1, 1905,” is the date fixed when he began to use intoxicating liquors to excess, and not when an illegal sale was made. The common-law rule with reference to the allegation of time has been much modified in recent years, especially where it was not material; but the modification has not gone so far as to relieve plaintiff from the necessity of stating some time when the acts were committed which gave rise to her cause of action. If the omission complained of could be supplied by a bill of particulars as a matter of right, it could be overlooked; but, being an action in tort, no bill can be demanded as of right. Kehrig v. Peters, 41 Mich. 475 (2 N. W. 801). Demurrer, therefore, was defendants’ only remedy to compel reasonable certainty in this respect.
The demurrer must be held good on this ground, with leave to plaintiff to amend in the trial court. Defendants will recover costs in this court.
McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred. | [
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STONE, J.
The material and controlling facts and legal questions involved in this case were so clearly stated and discussed in the opinion filed by the learned circuit judge, who heard and decided the case at the circuit, that we have concluded to insert his opinion here. It is as follows:
“The bill of complaint herein is filed by the city of Lansing to compel the defendant to remove from the public streets the poles and wires and equipment installed therein by defendant for the purpose of transmitting electricity for power and lighting purposes.
“The city of Lansing has a municipal electric plant and sells electric light and power, and the defendant has an electric plant in the city and sells light and power, and both complainant and defendant use the public streets for the setting of their poles, the stringing of wires along them, and the other necessary equipment, for transmitting electricity to consumers. Each plant represents the expenditure of large sums of money, and defendant’s plant would be practically valueless without the use of the streets.
“The city claims that defendant’s only right to ever be upon the streets at all arose out of a franchise granted by the city to defendant’s predecessor and assignor, and that such franchise has expired by reason of its terms of limitation, and therefore the defendant is upon and using the streets without right and should be removed therefrom.
“Defendant claims that it is using the streets under the grant of the legislature, contained in Act 264, Public Acts of 1905.
“The franchise granted by the city to the predecessor and assignor of defendant has expired by reason of its terms of limitation, so there can be no claim made by defendant of any existing right by franchise from the city. It is claimed by the city that the use of the streets by defendant under that franchise and before the passage of the act of 1905 made all use of the streets, while such franchise was in force, even though after the passage of the act of 1905, a use wholly under the franchise, and that it is not now open to defendant, in the absence of an express negation of use under the franchise at the time to make the claim of right under the law of 1905. This claim of the city implies that the franchise constituted the sole authority for the use of the streets by defendant, and that, while the franchise was in existence, no other authority could be accepted, though open to all persons and corporations not having a franchise from the city. This position is untenable, for the city had no authority to grant the use of the streets for the setting of poles and the stringing of wires, except as it derived authority by grant of power from the legislature, and a grant of such authority by the legislature in no way lessened the sovereign power of the legislature to also grant the right to individuals and corporations within the city, and to do so regardless of any action by the city.
“The city of Lansing had authority from the legislature to grant the franchise in question, but this grant of authority in no way prevented the legislature from granting the right to all persons, and the franchise did not estop defendant from having the benefit of a general law of the State. Wisconsin Telephone Co. v. City of Oshkosh, 62 Wis. 32 [21 N. W. 828]; Abbott v. City of Duluth [C. C.], 104 Fed. 833; Northwestern Telephone Exchange Co. v. Minneapolis, 81 Minn. 140 [83 N. W. 527, 86 N. W. 69, 53 L. R. A. 175]; City of Duluth v. Telephone Co., 84 Minn. 486 [87 N. W. 1127].
“Act 264, Public Acts of 1905, provides:
“ ‘Any person, firm, or corporation authorized by the laws of this State to conduct the business of producing and supplying electricity for purposes of lighting, heating and power, and which shall he engaged or which shall hereafter desire to engage in the business of the transmission of such electricity, shall have the right to construct and maintain lines of poles and wires for use in the transmission and distribution of electricity on, along or across any public streets, alleys and highways and over, under or across any of the waters of this State, and to construct and maintain in any such public streets, alleys or highways all such erections and appliances as shall be necessary to transform, convert and apply such electricity to. the purposes of lighting, heating and power, and to distribute and deliver the same to the persons, firms and public or private corporations using the same: Provided, that the same shall not injuriously interfere with other public uses of such streets, alleys or highways, or with the navigation of said waters, and that the designation and location of all lines of poles and wires shall be subject to the regulation, direction and approval of the common council of cities, the village council of villages, and the township board of townships, as the case may be: Provided, that this act shall not apply to the county of Wayne: Provided further, that nothing herein shall deprive cities, villages or townships of the power and control over their streets and highways, which they have by the general laws of this State.’ '
“The act of 1905 granted to defendant, as well as to all others, the right to use the streets for the purposes of promoting and making possible public utility service, and, when defendant made use of such grant, it was not necessary for- it to disclaim user under the franchise from the city, for the franchise and the act of 1905 were not at all inconsistent in purpose and scope.
“The city makes the point that the legislative journals for the session of 1905 do not show- that Act 264 was passed in accordance with the law governing legislative bodies. It is sufficient answer to this to say that the legislative journals do not show the act to have been irregularly enacted, and as the presumption of law is in favor of regularity in the premises, until irregularity is made affirmatively to appear, the presumption defeats the point so raised.
“Complainant claims the grant of the use of the streets by the legislature was subject to repeal and has been repealed or abrogated by the provisions of the Constitution of 1909, while defendant insists that the grant is perpetual and has not been and cannot be repealed. Both parties are in part mistaken. Defendant’s right to the use of the streets under Act 264 is not perpetual.
“The legislature of 1905 had authority to grant the use of the streets and public highways, whether in cities or in the country, to public utility corporations, with or without restriction of time of enjoyment, and the legislature at that session, either purposely or thoughtlessly, made the grant without fixing any period of enjoyment. This court must assume that the legislature was aware of the law upon the subject of that kind of grant, and the court is powerless in the premises, and cannot supply or fix any period of the time of enjoyment, except that of the life of the corporation. It was not necessary for the legislature to fix the period of the enjoyment of the grant of use of the streets, unless it was desired to limit the enjoyment to a less period than the life of the corporation. In the absence of a declaration of a period during which the right might be enjoyed, it is the law in this State that it may be enjoyed for the period of the statutory life of the corporation.
“It is absurd to claim that the general grant of the use of the streets, in the act of 1905 gave defendant the perpetual right to stay upon the streets, for defendant itself is not of perpetual life; its end is fixed with certainty in the act under which it is created.
“Defendant has a possible life of 30 years from the time of its incorporation, and this statutory corporate life, if lived, is the period of the right to use the. streets. Counsel for defendant cite the case of People v. O’Brien, 111 N. Y. 1 [18 N. E. 692, 2 L. R. A. 255, 7 Am. St. Rep. 684], as authority for claiming that the grant is perpetual; The O’Brien Case is not authority in this State and will not be followed by this court. That case is an isolated one and in conflict with, the holdings of the Supreme Court of the United States and wholly without the weight of authority, and it is surprising that it should be cited to this^ court in the case at bar.
“It is well to remember at all times when the O’Brien Case is cited that ‘the title of the streets in the city of New York is in the city itself, and not, as is the general rule, in the abutting owners who hold their title subject to the right of easement in the public for the purposes of transportation and communication.’ Pond on Public Utilities, § 171.
“The authority of the O’Brien Case cannot be invoked in Michigan, for the reason that in this State no franchise can grant a perpetual easement in the streets, for no corporation capable of enjoying such franchise can be organized under the law with perpetual life.
“ ‘That the grant will he limited to the life of the grantee or to the period of its existence as fixed in its charter was first established by the Supreme Court of the United States in the case of St. Clair County Turnpike Co. v. People of Illinois, 96 U. S. 63, where the court compared the grant of the franchise to the grant of an estate in land, and by analogy held that the period of the grant, like the giving of a life estate in real estate, terminated with the life of the grantee, in the absence of anything in the grant fixing a period definitely.’
“The court said:
“ ‘At common law a grant to a natural person, without words of inheritance, creates only an estate for the life of the grantee, for he can hold the property no longer than he himself exists. By analogy to this, a grant to a corporation aggregate, limited as to the duration of its existence, without words of perpetuality being annexed to the grant, would only create an estate for the life of the corporation.’
“Pond on Public Utilities, § 180. This is the rule in Michigan. Electric Light Co. v. City of Wyandotte, 124 Mich. 43 [82 N. W. 821].
“Complainant urges that, under the power reserved in the Constitution of 1850, the act of 1905 was subject to revocation and was revoked by the' provisions of the Constitution of 1909, and upon such revocation all rights granted in the act of 1905, whether accepted by user of the streets or not, were at once taken away.
“Section 1 of article 15, Constitution of 1850, provides :
“ ‘Corporations may be formed under general laws; but shall not be created by special act, except for municipal purposes. All laws passed pursuant to this section may be amended, altered, or repealed.’
“This power reserved in the Constitution of 1850 cannot be construed to be a power to revoke and terminate public utility service contracts, arising out of user of the streets under the act of 1905, for such user constitutes a contract falling within the protection of the Federal Constitution.
“The reports are full of cases interpreting the power of the legislature to amend or repeal acts authorizing incorporation when the power to do so has been reserved in the Constitution, but the weight of authority is to the effect that when the legislature has granted the right to use the streets for public utility purposes, and such grant has been accepted by user involving great expense and made upon the faith and credit of the grant, the legislature may not turn round and revoke the grant and ruin the party so relying upon the contractual force of the grant and user. Such grants, when accepted by the user, have a value to the public, in providing a common public service of a necessary utility and a value to the company in the returns from consumers for the service furnished, and constitute contracts within the protection of the Federal Constitution.
“It has been said that the power to revoke was placed in the Constitution of 1850 to avoid the effect of the decision in the Dartmouth College Case, because the framers of that Constitution were well aware of the binding force of legislation in the absence of such reserved power. This is undoubtedly true, but the power so reserved serves a valuable purpose without carying it to the extent of impairing the obligation of contracts.
“It is well to keep in mind the distinction between the right to be a corporation and unilateral grants to corporations and contracts between the State and corporations. The corporate existence and functions and unilateral grants to corporations may fall within the reserved power of amendment or revocation, but contracts between the State and corporations, arising out of grant of right of user of the streets, and acceptance by user for public utility purposes, must run their course and are not subject to revocation at the will of the legislature.
“The Constitution of 1909, art. 12, § 1, provides:
“ ‘All laws heretofore or hereafter passed by the legislature for the formation of, or conferring rights, privileges or franchises upon corporations and all rights, privileges, or franchises conferred by such laws may be amended, altered, repealed or abrogated.’
“This constitutional provision is prospective in its operation and for the use of the legislature.
“The legislature has not repealed the act of 1905. It is claimed that the act of 1905 has been abrogated or repealed by section 28, art. 8, of the Constitution of 1909, which provides:
“ ‘No person, partnership, association or corporation operating a public utility shall have the right to the use of the highways, streets, alleys or other public places of any city, village or township for wires, poles, pipes, tracks or conduits, without the com sent of the duly constituted authorities of such city, village or township; nor to transact a local business therein without first obtaining a franchise therefor from such city, village or township. The right of all cities, villages and townships to the reasonable control of their streets, alleys and public places is hereby reserved to such cities, villages and townships.’
“This provision of the Constitution is a wise and radical change in the policy of exercising the sovereign power over the streets, and upon its adoption it at once superseded the act of 1905 and rendered that act from that time inoperative.
“The Constitution of 1909 did not revoke and terminate existing user of the streets under Act 264 of 1905. The Constitution did abrogate the law of 1905, but it did not and could not revoke existing contracts under that act arising out of beneficial user of the streets for public utility purposes.
“Constitutional provisions, as well as legislative enactments, must be held prospective in operation only, unless they carry upon their face an intention to be retrospective.
“It would not help, however, to hold the constitutional provision retrospective, for the reason that contract rights are not subject to impairment by later constitutional provisions any more than by legislative enactments.
“Mr. Pond in his work on Public Utilities, § 115, says:
“ ‘Nor can contract rights and interests that are vested by-virtue of installing public utility plants under such rights be destroyed or interfered with even by a constitutional provision of the State. The rule prohibiting the impairment of contract rights is based on the Federal Constitution, which is superior to the State Constitution as well as to a statute or ordinance.’
“In the case of New Orleans Gas Light Co. v. Manufacturing Co., 115 U. S. 650 [6 Sup. Ct. 252], decided in 1885, the court held that a constitutional provision against the granting of monopolies or exclusive privileges did not have the effect of destroying or impairing the special privilege of conducting such a monopoly and enjoying an exclusive privilege by virtue of a franchise granted and accepted prior to the constitutional provision; the court saying:
* * * “ The article iu the State Constitution of 1879, in relation to monopolies, is not in any legal sense an exercise of the police power for the preservation of the public health or the promotion of the public safety. * * * The monopoly clause only evinces a purpose to reverse the policy, previously pursued, of granting to private corporations franchises accom partied by exclusive privileges, as a means of accomplishing public objects. That change of policy, although manifested by constitutional .enactment, cannot affect contracts which, when entered into, were within the power of the State to make, and which consequently were protected against impairment, in respect of their obligation, by the Constitution of the United States. A State can no more impair the obligation of a contract by her organic law than by legislative enactment, for her Constitution is a law, within the meaning * * * of the national Constitution. * * * And the obligation of her contracts is as fully protected by that instrument against impairment by legislation as are contracts between individuals exclusively.’
“The city contends that the grant of the right to use the streets, in the act of 1905, is a mere license and not in the nature of a franchise which could become a contract upon acceptance by user. In granting the use of the streets for public utility purposes, the legislature recognized the public purpose to be sub-served through such use. The legislature tendered the use of the streets for public utility purposes to such individuals and Corporations as would provide the public with a necessary utility service, knowing that the creation of such a utility and its service would entail the expenditure of large sums of money and benefit the public by providing a common service of the utility, knowing also that as soon as it should be installed in the public streets it would become affected with a public interest, and that its owner would have to surrender the right to serve whom and where it willed, or to charge as it willed, and that it would become subject to the laws regulating public service corporations. This public interest, this right of regulation, and this public advantage constitute a valuable consideration for the use of the streets and remove the grant from the class of a mere license.
“As soon as defendant accepted the grant by installation of its utility service and furnished its product to consumers, it had the right to charge and receive a reasonable sum for such service, and such right is its consideration for the contract.
“The act of 1905 tendered a franchise to defendant; such franchise was accepted by defendant by way of installing its service equipment in the public streets and providing a service of a public utility; and this tender and acceptance constitute a contract between the State and defendant beyond the power of the legislature, the Constitution, or of this court to impair by destroying the contract right to remain in the streets.
“It is true that it is not every act of the legislature providing for incorporation or relating to corporate rights and privileges that will constitute a contract, but when the legislature by act invites a public utility corporation to expend money in establishing a plant, upon the grant of the right to use the public streets, then, upon accepting the grant and establishing the plant and installing the public service equipment in the streets, there has come into existence a contract beyond the power of any division of the government to impair by recall of the grant to be upon the public streets.
“It is further contended by complainant that the act of 1905 is unconstitutional because it excepts Wayne county from its provisions and thereby violates section 1 of article 15 of the Constitution of 1850, which provides:
“ ‘Corporations may be formed under general laws; but shall not be created by special act, except for municipal purposes.’
“Passing a strict construction of this language in the Constitution of 1850, and considering it as applicable to legislation granting corporate rights and privileges, does the excepting of Wayne county from the operation of the act render the legislation special, so far as corporations are concerned, and therefore unconstitutional ?
“The act may appear to be local (that is, less than general to the whole State) and yet not be special, within the meaning of the constitutional prohibition. Acts granting rights and privileges to corporations within a particular part of the State have been held not to offend against this constitutional provision.
“The legislature, under the Constitution of 1850, had sovereign authority over the public streets and highways of the State, and could grant cities power to exercise the authority locally, and what the legislature could grant to a locality known as a city to do, it_ could within the same territory grant direct to individuals
and corporations for public utility purposes, saving the rights of public user of the streets and the exercise of the police power. The act of 1905 cannot be held to have offended against the provision of the Constitution of 1850.
“Complainant is not entitled to the relief asked, and the bill is dismissed.”
It might be well to refer briefly to the claim of complainant’s counsel that Act No. 284 of the Public Acts of 1905 (2 How. Stat. [2d Ed.] § 2941)-, was not legally passed by the legislature and is therefore void.
The bill originated in the house, and no claim is made that it did not legally pass that body. It was sent to the senate and referred to the committee on mechanical interests. Later the bill was reported out by the said committee and referred to the committee of the whole. On the same day the bill came up in the committee of the whole, and the journal shows that there “sundry amendments” were made to the bill, which amendments were concurred in, and the bill placed on the order of third reading. The nature of such amendments does not appear. On the same day the bill came up on third reading, was read a third time, and passed, a majority of all the senators-elect voting therefor, and the bill given immediate effect. Later on, in the same day, it was moved to reconsider, and upon such motion prevailing, and the question being on the passage of the bill, it was moved that the words “Kent” and “Saginaw” appearing after the word “Wayne” be stricken out. It was also moved that the bill be amended by striking out the word “counties” and inserting in lieu thereof the word “county.” These amendments being adopted, and the question being again on the passage of the bill, the bill as thus amended was passed, a majority of all the senators-elect voting therefor, and the bill given immediate effect. It does not appear at this point in the journal whether the striking out and changing of the above words amounted to an amendment of the original house bill or was an amendment of the bill as reported by the senate committee of the whole. The language of the journal would probably be the same in either case. If it was the latter, it amounted to no more than undoing the work of the committee, and left the bill as it came from the house. If that were all that appeared, we might invoke the doctrine that doubts and ambiguities on the face of the journal should be resolved in favor of due and proper legislative action. However, there is further evidence on the subject. The following entries are found in the house journal:
“Messages were received from the Secretary of the Senate, informing the House that the Senate had concurred in the passage of the following entitled bills: Plouse Bill No. 166 (file No. 268) (giving the title of this bill). And that the Senate had also concurred in the action of the House in ordering the bills to take immediate effect.”
It thus appears on the face of the journal that the senate concurred with the house in passing this bill. Had there been amendments to the bill, on its final passage, the senate would have made a different report, for it appears in the house journal on the second page from the above entry that a different form o'f communicating the passage of bill with amendments was used. A proper reference of the bill for printing was then made, and it was later duly presented to the governor.
In Common Council of Detroit v. Board of Assessors, 91 Mich. 78, at page 84 (51 N. W. 787, 16 L. R. A. 59), Justice Montgomery quoted the following language from McCulloch v. State, 11 Ind. 424, referring to such records:
“This journal must be held conclusive evidence of the facts which appear on its face, because it must be presumed that the members as a body inspected it and made all necessary corrections before they allowed it to assume the character of a journal of their proceedings.”
Counsel for complainant urge that People v. Dettenthaler, 118 Mich. 595 (77 N. W. 450, 44 L. R. A. 164), should govern this question. We cannot agree with counsel in this claim, but agree with the conclusion of the circuit judge.
It is the further contention of counsel that the act of 1905 was an infringement of the Constitution of 1850, because the legislature was by that instrument prohibited from creating corporations by special act, and it is urged that, because the act excluded Wayne county from its provisions, it was local, and therefore special. Our first answer to this contention is that, in our opinion, it cannot be said that this act attempted to create a corporation. At the furthest, it undertook to confer upon and grant to persons, firms, and corporations engaged in, or that might thereafter engage in, the manufacture, transmission, and distribution of electricity for lighting, heating, .and power purposes the use of the public streets, highways, and alleys of the State, except in Wayne county. Provided that the same should not injuriously interfere with other public uses of such streets, highways, or alleys, leaving the designation and location of all such lines subject to the regulation, direction, and approval of the common council of cities and villages and the township board of townships, as the case might, be, and that nothing in the act should deprive those municipalities of the power and control over their streets and highways, which they had by the general laws of the State. We think that it may be said that the exception extends to and covers any legislation affecting the rights, privileges, immunities, or burdens of the municipalities of the State.
The defendant was organized under the provisions of Act No. 232 of the Public Acts of 1903, and not under the act of 1905. As was said by the supreme court of California in California State Telegraph Co. v. Telegraph Co., 22 Cal. 398:
“It is clear that the Constitution prohibits the legislature from ‘creating’ corporations by special act, except for municipal purposes; and it is equally clear that this prohibition extends only to their ‘creation.’ There is nothing in the language used which either directly or impliedly prohibits the legislature from directly granting to a corporation, already in existence and created under the general laws, special privileges in the nature of a franchise, by a special act, or prohibiting a corporation from purchasing or holding such franchise, which may have been granted to others.”
We are aware that in City of San Francisco v. Waterworks, 48 Cal. 493, the above decision was overruled by a divided court. But in People v. Stanford, 77 Cal. 360 (18 Pac. 85, 19 Pac. 693, 2 L. R. A. 92), the San Francisco Case was much modified in holding that a corporation might legally take and hold franchises specially granted to individuals, and after-wards assigned to the company, and thus in effect limiting the meaning of the word “create” to the formation of corporations rather than to the subsequent acquisition of rights and privileges. It should be borne in mind that we are here dealing with the Constitution of 1850 and not with the provisions of our present Constitution. The former did not require uniformity of legislation.
“Laws public in their objects may, unless express constitutional provision forbids, be either general or local in their application.” Cooley’s Constitutional Limitations, p. 554.
See, also, White v. Bracelin, 144 Mich. 332 (107 N. W. 1055, 8 Am. & Eng. Ann. Cas. 256); Maclam v. City of Marquette, 148 Mich. 480 (111 N. W. 1079); Woodmere Cemetery v. Roulo, 104 Mich. 595 (62 N. W. 1010); Attorney General v. Arnott, 145 Mich. 416 (108 N. W. 646); Attorney General v. McArthur, 38 Mich. 204.
We have examined many cases upon the subject of genera], special, and local legislation, but we do not deem it necessary to cite them here, for we do not think that question a pertinent one in this case. The constitutional provision which we are considering was aimed at the practice of granting special acts of incorporation.
After examining the many authorities cited by counsel, we are satisfied that the provisions of the new Constitution, cited and referred to in the briefs and arguments, are prospective in their operation. The rule is well stated in volume 6, Am. & Eng. Enc. Law (2d Ed.), at page 917, as follows:
“Constitutions are construed to operate prospec-. tively only, unless on the face of the instrument a contrary intention is manifest beyond reasonable question.”
See, also, the many cases there cited. The same rule is applied to statutes.
As to the nature and extent of defendant’s right to use the streets under the act of 1905, it is only necessary, in the light of the uncontradicted evidence as to acceptance and occupancy by defendant, to cite a few cases, State and Federal, in addition to those cited by the circuit judge. City of Detroit v. Plank Road Co., 43 Mich. 140 (5 N. W. 275); Attorney General v. Perkins, 73 Mich. 303 (41 N. W. 426); Commonwealth v. Essex County, 13 Gray (Mass.), 253; Fletcher v. Peck, 6 Cranch (U. S.), 87; Sinking Fund Cases, 99 U. S. 700.
In a very able opinion by Justice Hughes, in the case of Russell v. Sebastian, 233 U. S. 195 (34 Sup. Ct. 517), banded down by the Supreme Court of the United States on April 6, 1914, the following pertinent language is used:
“That the grant, resulting from an acceptance of the State’s offer, constituted a contract, and vested in the accepting individual or corporation a property-right, protected by the Federal Constitution, is not open to dispute in view of the repeated decisions of this court. New Orleans Gas Co. v. Light Co., 115 U. S. 650-660 (6 Sup. Ct. 252); New Orleans Water Works Co. v. Rivers, 115 U. S. 674-680, 681 (6 Sup. Ct. 273); Walla Walla v. Walla Walla Co., 172 U. S. 1-9 (19 Sup. Ct. 77); Louisville v. Telephone Co., 224 U. S. 649, 663, 664 (32 Sup. Ct. 572); Grand Trunk R. Co. v. South Bend, 227 U. S. 544, 552 (33 Sup. Ct. 303, 44 L. R. A. [N. S.] 405); Owensboro v. Telephone Co., 230 U. S. 58-65 (33 Sup. Ct. 988); Boise Water Co. v. Boise City, 230 U. S. 84, 90-91 (33 Sup. Ct. 997); Dillon on Municipal Corporations (5th Ed.), § 1242.”
The above-cited opinion by Justice Hughes is worthy of a careful examination on the main question involved in this case. There the defendant was working in the employ of a company, organized in 1909, claiming vested rights under the Constitution of California, as amended in 1885. It was claimed that the rights of the company had been taken away by an amendment of the Constitution in 1911. There had been no formal or written acceptance of the offer, under the Constitution as amended in 1885, but it was held that the lack of a requirement of an acceptance of a formal character did not preclude acceptance in fact. There, also, the right was given to “any individual or any company duly incorporated for such purpose, under and by authority of the laws of this State.”
It has been urged that the case of Attorney General v. Looker, 111 Mich. 498 (69 N. W. 929, 56 L. R. A. 947), modified the case of City of Detroit v. Plank Road Co., supra. We do not so understand it. In the later case it was distinctly held that stockholders of a corporation had no vested right to elect directors, which was infringed by the stockholders’ minority law. The doctrine of the case is that the power reserved to the legislature by'the Constitution of 1850, art. 15, § 1, to amend or alter the charters of corporations, authorizes any reasonable amendment, regulating the mode in which the franchise granted shall be used and enjoyed, which does not defeat or essentially impair the object of the grant, or take away property or rights which have become vested under a legitimate exercise of the powers granted. ‘
We agree with counsel for defendant that it is immaterial to the consideration of this- case whether the grant was for the life of the corporation or in perpetuity. The circuit judge took the view that the grant was for the life of the corporation. We do not pass upon that question. In all other respects we concur in the conclusions of the circuit judge, and the decree below dismissing the bilk of complaint is affirmed, with costs to the defendant.
McAlvay, C. J., and Brooke, Kuhn, Bird, Moore, and Steere, JJ., concurred. Ostrander, J., did not sit. | [
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McAlvay, C. J.
This is a case in ejectment brought in behalf of plaintiff, a minor, by her next friend, against defendants, to recover an undivided one-third interest claimed by her in certain real estate situated in the city of Grand Rapids. The trial resulted in a verdict and judgment in favor of the defendants. Plaintiff has removed the case to this court for review upon a case-made after judgment, and has assigned errors upon exceptions taken during the trial, which assignments of error were duly attached and certified when the case was settled.
The material facts in this case are as follows: Plaintiff’s ancestor, through whom she claims title, who was Bridget Delia Broffee, her grandmother, derived title to the premises in question from one Mary A. Granger, April 3, 1883. She entered into and continued to hold possession thereof from that date until her death, which occurred September 23, 1908. She left surviving her as sole heirs at law four persons, namely, Anna M. Le Fils and Ella B. Kelley, daughters, two of the defendants herein, John Broffee, a son, and plaintiff, a granddaughter, the only surviving heir of her son, James Broffee, deceased. These premises are situated in the city of Grand Rapids on the east side of Plainfield avenue, 170 feet north of the north line of Carrier street. It is an irregular piece of land about the size of an ordinary city lot and upon it, after her purchase, Mrs. Broffee, built two houses. About three years and six months before her death Mrs. Broffee, on March 16, 1905, sent for a notary public to come to her house, who, under her instructions, drew the following instrument, which she duly executed and acknowledged :
“This indenture, made the sixteenth day of March, •in the year of our Lord, one thousand nine hundred and five, between Mrs. Bridget Broffee, of the city of Grand Rapids, county of Kent and State of Michi gan, party of the first part, and Anna Maria Le Fils, and Ella Kelley, both of Omaha, Nebraska, and being daughters of the first party hereto, parties of the second part, witnesseth, that the said party of the first part, for and in consideration of the sum of (1.00) one dollar and love and affection to her in hand paid by the said parties of the second part, the receipt whereof is hereby confessed and acknowledged, does by these presents, grant, bargain, sell, remise, release, alien, and confirm unto the said parties of the second part, and to their heirs and assigns, forever, all that certain piece or parcel of land, situate and being in the city of Grand Rapids, county of Kent and State of Michigan, and described as follows, to wit [omitting description]. Together with all and singular the hereditaments and appurtenances thereunto belonging or in any wise appertaining: To have and to hold the said premises, as above described, with the appurtenances, unto the said parties of the second part, and to their heirs and assigns forever. And the said Bridget Broffee, party of the first part, her heirs, executors and administrators, does covenant, grant, bargain and agree to and with the said parties of the second part, their heirs and assigns, that at the time of the ensealing and delivery of these presents she is well seised of the above granted premises in fee simple; and that they are free from all incumbrances whatever and that she will, and her heirs, executors and administrators shall warrant and defend the same against all lawful claims whatsoever. It is hereby expressly understood that this deed is not to be delivered or become operative except in case of the death of the party of the first part.
“In witness whereof, the said party of the first part has hereunto set her hand and seal the day and year first above written.
“Bridget Broffee [L. S.]”
The notary left the instrument with Mrs. Broffee at her house, and never saw it afterwards until in court as a witness in this case. The grantees in this instrument at that time resided in Omaha, Neb., were not present at its execution, and paid no consid eration. It developed on the trial that defendant Ella Kelley claimed that this instrument had been delivered to her May 28, 1905, by her mother in the presence of her brother John, who had died in December, 1909, three years before the present trial. Defendant Ella Kelley caused this instrument to be recorded in the office of the register of deeds on September 26, 1908, three days after the death of her mother, Bridget Broffee. How and when it came into her possession there is no evidence in the case to show. The record shows that the testimony of defendant Ella Kelley, offered for the purpose of showing a delivery of this instrument to her by her mother, was objected to and stricken out as incompetent under the statute. It also appears that after the death of Bridget Broffee and after defendant Ella Kelley had recorded the instrument in question, she petitioned for the appointment of an administrator of her mother’s estate, describing herself, her sister and brother John as the only heirs, not including the plaintiff, who was at that time living in Milwaukee, Wis. John Broffee was later appointed administrator of his mother’s estate, but did not include the land here in question in his inventory. The estate was closed June 1, 1909, and $560.43 and two parcels of land (not included in this suit) was assigned to Mrs. Le Fils, Mrs. Kelley, and John Broffee, as the only heirs of the deceased mother. John Broffee died intestate December 31, 1909. Afterwards Mrs. Kelley petitioned the probate court for the appointment of an administrator of his estate, describing herself, Mrs. Le Fils, and plaintiff, Irene Broffee, as his only heirs. An administrator was appointed and probate is -still pending. The record shows that the two houses on the land in question in this suit were leased by the two principal defendants, Le Fils, and Kelley, to the other defendants, Everett and Benton, who were occupying the premises when this suit was instituted and were made parties defendant thereto. The errors assigned and relied upon relate to the exclusion and admission of testimony, the refusal to give plaintiff’s requests to chai'ge, and certain portions of the charge as given by the court.
To rebut the prima facie case made by plaintiff defendants introduced in evidence the instrument already set forth, and offered to show that it was delivered by Bridget Broffee to defendant Ella Kelley May 28, 1905. Objection was interposed that the witness was incompetent to testify, and the objection was sustained. The matter was pressed by further questions, as follows:
“Q. Who handed you the deed on that occasion?
“Mr. Carpenter (attorney for plaintiff): I object to that on the same grounds.
“The Court: The objection is sustained.
“Mr. McKnight (attorney for defendants): I offer to show that on the 28th day of May, 1905, this deed, Exhibit 2, was delivered by the mother, Bridget Broffee, to this defendant.
“Mr. Carpenter: I object to it.
“The Court: The objection is sustained.
“Q. Was there any one else present at that time besides your brother John and mother?
“A. No, sir. My brother John is dead. No other person is now living having knowledge of that delivery. No one else was present.”
This is all the testimony which was offered or could be offered on the part of defendants to show the delivery of this deed, except that of the witness Thiebault, which we next consider. As the record stands, therefore, no delivery of this instrument was shown to have been made by Bridget Broffee to defendants during her lifetime.
On the part of defendants testimony of a witness named Thiebault was offered and received over objection and exception by plaintiff relative to conversations had with Mrs. Broffee, as counsel for defendants stated, “to show she had delivered these deeds to the girls, from her own statement.” An examination of this testimony shows, in the witness’ words, “she did not say a word about the deed.” The substance of the testimony is that deceased told witness “she was going to give them a house and lot apiece.” Counsel for plaintiff moved the court “that all the testimony of this witness be stricken out as having no tendency to show a delivery of this deed and being irrelevant and incompetent.” The court denied the motion, and an exception was taken upon which error is assigned. This testimony had no tendency to show a delivery of this deed. The court was in error in denying the motion to strike it out. It was recognized by the court, and so stated in his charge to the jury, that:
“If Bridget Broffee had not made this instrument and had died intestate, that is, without making a will, the plaintiff in this case would have had an interest in the property in controversy here as the heir of her father, James Broffee.”
The court submitted to the jury to find as a question of fact the grantor’s intent in the execution of this instrument as to passing a present interest to these two defendants, her daughters, and also to find whether Bridget Broffee delivered this instrument during her lifetime, as claimed by defendants, as follows:
“Now the question arises as to what was the intent of Bridget Broffee in the execution of this instrument executed in the form of a warranty deed but containing the clause I have read to you. The question for you to determine is what, under the circumstances of this case, which you believe to be true, was the intent of the grantor, Mrs. Broffee, as to the passing of any present interest in this property to the grantees named in this deed, the defendants in this case, Mrs.' Kelley and Mrs. Le Fils?”
And further:
“If there Was a delivery, as the defendants contend, accompanied by the intent to invest in the grantees, that is, Mrs. Kelley and Mrs. Le Fils, a present interest in the property absolutely, then your verdict will be for the defendants, and that is the question here. You are to take all the facts and circumstances in the case as are shown by the evidence, the relations of the parties, the contents of the deed, and determine as to what was the intention of Mrs. Broffee as to passing the present interests, or title, to the grantees by the execution of this instrument in question.”
And further:
“If she did deliver the deed before her death with the intent of passing title at the time that the document was delivered, an absolute title then and at that time, with the right of possession at that time, then it would convey an absolute title in this property to these two defendants.”
Upon these portions of the charge errors are assigned by appellant. Relative to the submission of the question of the delivery of the instrument to defendants, it is contended on the part of appellant that there is no evidence in the case tending to show such delivery. Having already determined that there was no evidence in the case tending to show that this instrument was delivered to these defendants during the lifetime of Bridget Broffee, it follows we must hold that the exception of counsel for appellant to these portions of this charge which submit this question of fact to the jury was well taken. The court was in error in so charging the jury.
On the second proposition the contention of appellant is that the instrument in question is not ambiguous in its terms, that the intent of the grantor is to be found only within the terms of the .instrument itself, and that its construction was a question of law for the court. From our examination of the record we find that there was no evidence properly in the case except the instrument itself from which to find the intent of the grantor, and we agree with the contention of counsel for appellant that the construction of this written instrument was a matter of law. for the court, and not a question of fact for the jury. The question of intent was therefore improperly submitted to the jury.
There remains to be considered only the construction of the clause in the instrument itself upon which this dispute arises, which reads as follows:
“It is hereby expressly understood that this deed is not to be delivered, or become operative, except in case of the death of the party of the first' part.”
It would be hard to select fewer words to more aptly express the intention of the grantor. It is a most positive statement that the deed was not to be delivered or become operative except in case of the grantor’s death. This is the express intent of the grantor, concerning which there is left no room for doubt. This instrument, after its execution, was left in the possession of the grantor, and there was no delivery shown to have been made by her to these defendants, directly or indirectly. The case, as we view it, was one in which it would have been proper for the court to have instructed a verdict for plaintiff.
It will not be necessary for this court to consider other questions which are presented.
The judgment of the circuit court is reversed, and a new trial granted.
Brooke, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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Steere, J.
Plaintiff brought this action in assumpsit in the circuit court of Shiawassee county on two promissory notes given it by defendants, dated February 12, 1909, one for $100, due December 15, 1911, and the other for $110, due March 15, 1912. It was agreed between counsel at the time of the trial that these notes amounted, with interest, to' $274.81. Defendants pleaded the general issue, giving notice thereunder of matters of special defense, to the effect that the notes had been fully paid on July 6, 1909, at which time defendants traded back an engine, for a portion of the purchase price of which said notes were given, and entered into another contract with plaintiff for the purchase of a new and larger engine, giving therefor, in addition to the old one, three notes of $200 each, with the express understanding that the two notes sued upon were settled and satisfied, and would be canceled, and that they have paid the three $200 notes in full. The issue before the court was whether these two notes of February 12, 1909, were settled and satisfied by the terms of the last contract of purchase.
The defendants are brothers. They were engaged in the business of farming and threshing. At the time of their first dealing with plaintiff they resided in Isabella county. During the past three years they have resided in Shiawassee county. Their activities in the business of threshing were carried on under a partnership arrangement. In 1906 they purchased of plaintiff a threshing outfit, described in the chattel mortgage given thereon as a Port Huron Rush separator complete, with straw stacker, belts, fixtures, etc., belonging to the same, a 14-horse power steam traction engine complete, with hose, fixtures, and appendages belonging to the same, one main drive belt, a water tank on trucks, canopy top, etc., giving notes secured by said mortgage in payment therefor. They made two subsequent deals with plaintiff for the purpose of getting larger engines, in which new chattel mortgages were given upon that part of the threshing outfit previously purchased and the new engines then traded for, in form clearly indicating that each mortgage was to secure the purchase price of all property therein described, as though simultaneously purchased. They made the second deal with plaintiff on February 12, 1909, exchanging their 14-horse power engine for a 16-horse power, and as part of its purchase price gave the two notes now sued upon, giving a new chattel mortgage to secure deferred payments. This second mortgage described the purchase in terms practically identical with those in the first, varied to conform with the new date, increased horse power of the new engine, amounts to be paid, etc., listing and describing as in the first the separator, straw stacker, water tank, canopy top, etc., with the engine just purchased, under a general introductory recital that “said parties of the first part have purchased the property hereinafter described from the party of the second part.” On July 6, 1909, the three brothers went to Port Huron and exchanged their 16-horse power engine for a 19-horse power. A new chattel mortgage was again given in the same form and describing under the same general recital all property constituting the threshing outfit as in the other two, varying only as to date, power of engine, amount, and terms of payment. The amount and terms of payment were stated in this last chattel mortgage as follows :
“The sum of eleven hundred and ten dollars, with interest at the rate of seven per cent, per annum, according to the terms of seven certain promissory notes signed by Bloom Bros., and payable to the Port Huron Engine & Thresher Company, or order, as follows, viz.:
“$150 dated Aug. 24, 1906, due Nov. 15, 1909.
“$150 dated Aug. 24, 1906, due Jan. 15, 1910.
“$100 dated Feb. 12, 1909, due Dec. 15, 1911.
“$110 dated Feb. 12, 1909, due March 15, 1912.
“$200 dated July 6, 1909, due. Nov. 1, 1910.
“$200 dated July 6, 1909, due Nov. 1, 1911.
“$200 dated July 6, 1909, due Nov. 1, 1912.”
It will be observed that the two notes here in litigation are included in the above; the others enumerated are not in controversy.' Defendants on the trial claimed and testified that by the terms of their last agreement they were to return the formerly purchased 16-horse power engine and receive a new 19-horse power, paying therefor an additional $600, for which notes were to be given; that plaintiff was to cancel and destroy the two notes here sued upon, aggregating $210, which had been given on the previous exchange of engines, and which had not yet been paid.
In explanation of why these notes were not then canceled and surrendered to them, defendants testified that when the terms of the agreement were finally reached it was close to the time for departure of the train by which they intended to return home from Port Huron; that plaintiff’s agents with whom they dealt then informed them the notes were over in a bank, but would be subsequently canceled and sent to them; that relying upon this, and being desirous of catching their train, they signed the papers and hurriedly departed. The negotiations were had with a factory salesman and the assistant sales manager of plaintiff, who positively denied any understanding or agreement that the notes in question should be canceled or surrendered, or any talk to that effect, and testified that the chattel mortgage was understandingly signed, was in harmony with the terms of the sale, and that the dates when the three $200 notes; fell due were fixed at defendants’ request with special reference to the $150 note and the two notes in question, so that no two would fall due together.
The two agents of plaintiff and the three defendants were the only witnesses. Their testimony was in direct conflict, positively affirming on the one side and as positively denying on the other. Under such conditions cross-examination should be allowed a liberal range, and any pertinent sidelight evidence which might have a bearing upon the probability of one story or the other and tend to aid in finding where the truth lay was competent. Plaintiff’s most meritorious complaint and assignments of error relate to restrictions imposed upon it in that line of inquiry. Claiming the right to go into the details of this connected series of transactions relative to engines purchased and exchanged, and particularly as to the amount defendants had actually paid upon the 16-horse power engine, for the purpose of ascertaining their real interest or equity therein, plaintiff’s counsel asked, amongst others, the following questions in cross-examination, objections to which were sustained:
“Witness, did you, on the 24th day of August, 1906, for the purpose of securing to the Port Huron Engine & Thresher Company, the plaintiff in this case, make and execute to it a chattel mortgage growing out of the purchase of the 14-horse power engine?
“How much money have you paid to the plaintiff in this case upon the 16-horse power engine?
“At the time you purchased the 16-horse power engine, which was on the 12th day of February, 1909, how much money, if any, did you pay down upon that engine?
“Besides the three notes, of $200 each, were you also owing the company upon four other notes?
“How much were you owing altogether to the plaintiff company on the 6th day of July, 1909?”
The objections most persistently urged by defendants against this line of questions were that the same was incompetent, immaterial, and related to a separate and distinct transaction, which occurred some years before the one in litigation.
Without going further into the details of this series of objections and rulings, it is sufficient to state that plaintiff, under .the sharp contradictions which had arisen between witnesses, should have been allowed, especially in cross-examination, to inquire into all the circumstances of the consecutive transactions in purchase and exchange of these engines, and in that connection show any related facts which might have a logical tendency to support the probability of the story of its witnesses, or weaken that of defendants, as to what the last agreement was. The court distinctly held that plaintiff could not show how much defendants had paid upon the 16-horse power engine, though the amount they owed was allowed to be inquired into. Defendants were contributing in value to apply on the price of the 19-horse power engine their equity in the old, and what they had paid upon it was material in ascertaining the value of that equity, which, with the three $200 notes, was claimed to be the agreed price of' the one last purchased. These payments, as bearing upon relative values, were proper questions to investigate, and for the jury to consider in determining which of the parties was entitled to the greater credibility. Full inquiry should have been allowed in that connection. We are constrained to hold that, under the principles recognized in Banghart v. Hyde, 94 Mich. 49 (58 N. W. 915), Grabowsky v. Baumgart, 128 Mich. 267 (87 N. W. 891), and Aldrich v. Scribner, 146 Mich. 609 (109 N. W. 1121), the exclusion of these questions must be regarded as prejudicial error.
The judgment is reversed, and a new trial granted.
McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Bird, and Moore, JJ., concurred. | [
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Campbell J.:
The defense below to an action on promissory notes given by plaintiffs in error, arose out of the following state of facts, substantially. The firm of Frost & Bradley had, during the years 1855 and 1856, raised money by borrowing from Butler, upon their notes, endorsed by the Craigs for accomodation. The amount borrowed does not appear. In August, 1857, after deducting all payments upon the principal and making no allowance on account of illegal interest paid, there remained a balance of principal of $2,540, for which new notes were given by Frost & Bradley, endorsed by the Craigs, and upon which the case does not find any further usury to have been reserved, or exacted. A further sum of fifty dollars was lent, also without usury so far as appears. In September, 1857, Frost & Bradley assigned to Craig & Brother property then supposed sufficient to pay all debts on which they were liable, for the purpose of paying them and returning any balance. Márch 15, 1858, Craig & Brother took up the notes for balance of principal, in the hands of Butler, and gave him in payment therefor, with lawful interest, their own notes divided into four equal sums, payable with interest at ten per cent., two of which were endorsed by Henry Weber, one of the plaintiffs in error, (who was not a party to the old paper) and are the notes now in suit. The others were made payable to Butler. During the various dealings with Butler, Frost & Bradley had paid him $593.72 more than interest at ten per cent, and $741.33 more than interest at seven per cent. These facts appear in the special verdict, upon which judgment was rendered for plaintiff below Avithout deduction.
Our statute differs somewhat from any which has been cited; but it is in principle very much like our former law, so far as the mode of enforcing the usurious contract-is concerned, except that under that, as' well as under the Massachusetts statute from which it Avas borroAved, the forfeiture, or rather the deduction, was threefold instead of single. Our present statute, after declaring that contracts on which usurious interest is reserved or taken shall not be void, provides that in any action brought by any person on such usurious contract or assurance, except as is provided in the following section, if it shall appear that a greater rate of interest has been directly or indirectly reserved, taken or received, than is allowed by law, the plaintiff shall have judgment for the principal and legal interest only, exclusive of the usury. — 1 Comp. L. § 1314. It was decided in Thurston v. Prentiss, 1 Mich. 193, that usury not affecting the validity of the contract itself, the right to deduction is only to be enforced as a remedy in the way pointed out by statute.
In this the court recognized and followed the decisions of Massachusetts and other states, which hold that a note or other contract upon which usury is reserved, if made under such a law, will be enforced in full without airy deduction, if sued in another state, whatever may be the usury laws of the latter; and that no remedy but the statutory one will be enforced by the home law. Thus, in Wiley v. Yale, 1 Metc. 553, the court refused to allow a party to recover back the excess by action on the case, although the statute allowed an action of debt to recover it. And in Gale v. Eastman, 7 Metc. 14, the courts in Massachusetts refused to allow the deduction of usury permitted by the laws of New Hampshire, on a note made there. The same principle is recognized and enforced in McFadin v. Burns, 5 Gray, 599; Sherman v. Gasset, 4 Gilm. 521; Suffolk Bank v. Kidder, 12 Vt. 464; Watriss v. Pierce, 32 N. H. 582; Bevins v. Reed, 2 Sandf. 436; Elmer v. Crum, 8 Ind. 25. Our present statute does not permit usury to be recovered back.
The remedy for the debtor is confined to having the excess deducted when suit is brought, and if such deduction should exceed the whole balance due on the face of the paper, he is not entitled to a judgment as in' set off for the balance, but merely maintains his defense as in recoupment.
In the present case, the claim is that such a deduc tion should be allowed. The question then arises whether this action is such fas to authorize it.
The statute allows the deduction to be made only when an action is brought upon the usurious contract or assurance. Is this an action upon the usurious contract?
It is not claimed or found that any usurious interest was paid or agreed to be paid by Craig & Brother, or Weber, on these notes. And if usurious, they are made so by prior transactions.
The notes for the payment of which these were given, included only an amount of principal actually lent to Frost & Bradley. If these notes were usurious, they were made so because money paid for prior usury should have been credited on the principal. If the notes now in suit are usurious, it is because they were given in lieu of those just referred to.
Under the laws which rendered usurious contracts absolutely void, it was very generally held that the invalidity attached to every renewal or substitution of securities based in their origin on the same consideration; upon the principle that an illegality of consideration vitiated any agreement founded on it. Where valid securities of independent origin were given in lieu of the illegal paper, they continued valid and might be enforced.
But when laws were enacted, recognizing usurious contracts as valid, and only refusing the active aid of courts in enforcing the regular, or, as in this state, the excessive interest, these rules became of necessity partially inapplicable, at least.
In Farmers’ & Mechanics’ Bank v. Kimmel, 1 Mich. 84, it was held that no one could take advantage of usury in a mortgage, except the mortgagor himself; the defense being personal. In Cook v. Dyer, 3 Ala. 643,j it was likewise held to be a personal defense which might be waived. And this would seem of necessity to follow upon the doctrine that the defense is confined to a specific
It was held in Little v. White, 8 N. H. 276, that an administrator who had given his note for a usurious debt of his intestate could not set up the usury. In Thurston v. Prentiss, above cited, a surety who had voluntarily paid usurious interest included in the debt on which he was surety, was allowed to recover it of his principal, although not permitted to collect of him usury paid on his own account for an extension procured for his own convenience.
These cases would seem to recognize the idea, that it is not impossible to create liabilities upon or growing out of an originally usurious contract, which shall not be subject to any deductions on account of the usury.
The cases upon substituted securities in many instances go very far in this direction.
The case of Chadbourn v. Watts, 10 Mass. 121, was decided while the old law was in force avoiding entirely usurious contracts; and its correctness was somewhat questioned by the reporter. It was never overruled however, and has been recognized in Clark v. Phelps, 6 Met. 296. In Chadbourn v. Watts, the defendant had given a promissory note, originally for $874,15, upon which he paid interest at usurious rates from time to time, making also payments of principal upon that and other account, until the sums remaining due on both were reduced to about the original principal of the first note. A new note was then given, and the old one cancelled. This being reduced by payments at lawful rates to $500, a third note for the latter sum was, given in place of it. This latter note was held good. Clark v. Phelps was, a similar case under the latter statutes, and in this case a loan of $2500 was made, secured by note upon which usurious interest was paid, and a new note for the full original principal was g-iven in its stead. The court held the new note might be collected free from any deduction for the usury paid on the former one.
The same principle wás applied substantially in Darling v. March, 22 Me. 184, where a usurious note having been divided into separate notes, and one of these containing usury having been paid, it was held no deduction should be allowed from the others on account of the usury so received. In Postlethwaite v. Garrett, 3 T. B. Monr. 346, and in Fowler v. Garrett, 3 J. J. Marsh. 682, the same principle was carried still further. Pierce v. Conant, 25 Me. 33, involves similar considerations.
It is unnecessary for us to decide how far these views should be followed where there is no change of parties, ■or how far a surety may claim exemption where the substituted paper does not cancel the original liability, but is a mere renewal of it. We have referred to these cases for the purpose rather of showing that usury and its consequences must attend the same contract, whether substitution may or may not destroy its identity. It is very clear that such identity can not depend merely upon the consideration of the contract sued upon.
The usury in the case before us was exacted of Frost ■& Bradley. Craig & Brother did not see fit to claim their defense upon the paper originally endorsed by them, but took it up and gave new paper, to which Frost & Bradley are not parties. We think the new paper can Hot be regarded in any sense as the usurious contract or assurance contemplated by the statute, inasmuch as the ■claim against the debtor who made the usurious payments no longer exists. For this reason the judgment must be •affirmed.
The other Justices concurred. | [
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By the Court:
The defendant in this case had Ms election to rely upon Ms exceptions, or to make and settle a case; but when he had procured a bill of exceptions to be settled, and had filed the same, he had made that election, and was not entitled to settle a case afterwards.
With respect to the other question, we aré of opinion, whether a party is entitled to a written notice of a judgment rendered in his presence or not, that when he has acted upon the knowledge of that judgment, as in this case, he is then too late to object the want of written notice.
Motion granted. | [
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] |
Martin Ch. J.:
Under a bill to establish and enforce a vendor’s lien, it is necessary that the contract of purchase, both as to consideration and terms of payment, should be clearly ¡noven, in order that the court may compel the execution of the agreement of the parties, and not one of its own creation. In the present case no contract is set out in the bill, nor proven by witnesses. Even admitting that the consideration for the sale by the complainant to the defendant was $900, we have no allegation or proof of any contract for its payment, or the times, terms, or instalments upon and in which such payment should be made. What then can we declare the contract to be, or how can we enforce any hen for that of which we are ignorant ?
The complainant avers in his bill that, on the seventh day of April, 1855, he sold the land to the defendant for $900, and that he received $410; but when or how the balance was to be paid, and whether any and what promise was made to pay it, is not alleged. The answer denies any contract or liability for such amount, and avers payment in full. The testimony leaves us equally at fault with the bill. Mrs. Johnson testifies that, after the complainant’s return from Council Bluffs, he sold the land for $900; and of the payments made; but says not a word of any contract or understanding respecting the payment of the residue, if any, beyond the $410. She says she was present when the contract was made, which was early in the spring of 1855, and that no one else was present. Jacob W. Mowrey testified that he was present when the same contract was made, in November or December of 1854, and that the price agreed upon was $900; that the balance above the $410 the defendant was to pay as fast as he could, and as he could worlc it out for the complainant. Charles Mowrey’s testimony, if it has any value, tends to establish' the fact that the balance, if there were any, was to be “ worked out.” On the part of the defendant, Bondeman testifies that the complainant told him that the real consideration for the sale was a secret. This embraces all the testimony worthy of consideration upon the subject of the contract, and I confess my inability to determine from it how much, or, if any thing, when and how the residue was to be paid.
J. W. Mowrey’s testimony certainly does not corroborate Mrs. Johnson’s, for he testifies to a different contract, made at a different time; while if his testimony be regarded as corroborated Ify Charles Mowrey’s, then the complainant has no standing in court, for he has neither alleged such a contract in his bill, nor shown a refusal on the part of the defendant to “work out” the balance. He can not enforce a lien before a breach of contract has occurred.
But it is urged that the recital in the deed of nine hundred dollars as the consideration, is prima facie evidence that such is the fact, and thus corroborates the testimony of Mrs. Johnson and J. W. Mowrey. But it corroborates neither, nor do they corroborate each other. It is true that the recital of the consideration, made in a deed, is prima facie evidence in an action against the grantor, when suit is brought for a breach of covenant, or other cause, by the grantee, founded upon the sale; but I know of no case which holds, or principle which will allow, such recital by the grantor to be used as evidence in his own behalf, in an action for the purchase money. If he relies upon that, he must also admit that it was “in hand paid,” for it is an entire recital and admission by himself, and not by his grantee; and it would be the introduction of a novel doctrine into the law were we to hold that admissions and recitals of this kind, made by the grantor in his deed, operate as an admission by the grantee of a corresponding liability, or furnish any evidence against him in an action for the purchase price, or on a bill to establish and enforce a vendor’s lien. The experience of all teaches that this recital in a deed is evidence of the slightest kind even against the grantor, in an action against him for breach of covenant; and is only allowed to be prima facie evidence because it is in form an admission.
The decree of the court beloiv is affirmed, with costs.
Ciieistianct and Campbell JJ., concurred.
Manning J. was absent. | [
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Manning J.:
On overruling a demurrer to a declaration, judgment goes for the plaintiff, unless leave is given to defendant to plead; which is usually done on the payment of costs when the demurrer has been put in in good faith. The court may attach such conditions to the order as the circumstances of the case, and justice between the parties, may require. The order and the conditions on which it is granted' are in the sound discretion of the court, and can not be reviewed on a writ of error.
The action is properly brought in the name of McNoah for the use of Shepard. Moore’s testimony does not prove or tend to prove a promise made by Tefft to Shepard,, to pay him the $3,000, or any other sum. It was not introduced for that purpose, but to prove Tefft’s admission that $3,000 were due on the written contract. By the bill of particulars plaintiff’s action was confined to the written instrument. He could show no cause of action outside of it. Maginn’s testimony went beyond the written contract, in so far as he testified to McNoah’s con. tinuance in the employment of Tefft after the second of July, 1860, and from that day until November following. But there was no error in this, because .no claim was made by plaintiff for McNoah’s services: the only object of plaintiff being to prove by the witness that McNoah had continued in the employ of Tefft,. from the date of the written contract until the 2d, July, 1860, as the agreement required he should, to increase the amount to be-paid to Shepard on the second of July, I860, from $1,-700 to $3,000. This was the sole object of the testimony.
Nor was it necessary for plaintiff to show that McNoah was indebted to Shepard in the sum of $3,000, as contended on the argument; .and if it was, we think it clearly appeared from the written agreement itself. The undertaking' on the‘part of Tefft' was to pay Shepard $1,700 on a certain day unconditionally ; and in case McNoah remained in Ms employment up to that clay, then to pay Shepard the full.' sum of $8,000.
The judgment must be affirmed. with costs.
The other Justices concurred. | [
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] |
North, C. J.
This is a suit for specific performance. Defendants have appealed from the decree in the circuit court granting the relief sought.
Defendants Hill desired to sell their farm home property in Breen township, Dickinson county. Plaintiff Gedvick owns an adjoining farm. The Hills sent word to Gedvick to ascertain if he might be interested in purchasing the Hill farm. He went to the Hill home and was told by them that the price of their property was $2,500; and, as plaintiff testified:
“I said I will pay that. * * * Victor Hill and Ida Hill said that they had to notify Reverend Mykkinen and tell him, the Lutheran Pastor at Republic about preparing papers. * * * They said something about contemplating going to live at Rev. Mykkinen’s Rest Home. They said they would notify him to come down and assist them in closing the deal.”
Both Mr. and Mrs. Hill are past 80 years of age; they are of Finnish nationality-and speak that language, but cannot speak English. Rev. K. V. Mykkinen conducts the Serapta Rest Home at Republic. The Hills were contemplating entering the rest home after they disposed of their farm. Rev. Mykkinen took the Hills to Iron Mountain for the- purpose of taking up the sale of their farm with the department of - social welfare. The parties concerned considered it necessary to obtain the approval of the department of social welfare, or the proper officer thereof, incident to the sale of the farm, because Victor Hill was receiving old age assistance. Evidently at the social welfare office a blank form was obtained, which, as there filled out and executed by the Hills, is referred to in this record as exhibit A. Plaintiff was not present at the time, but subsequently, and on the same day, he also executed exhibit A and took it back to the social welfare office in Iron Mountain. Plaintiff testified:
“At the time I signed the paper (exhibit A), I was under the impression that they couldn’t sell it until they got permission from the department of social welfare. * * * I took 4 copies to the department of social aid. I thought when you get the O.K. from the welfare that they could go ahead and sell me the property. I supposed they would notify me. * * * The bureau of social aid said they would notify me when they came back. * * * Up to the time that I heard the Hills had sold the property to Gilbert Stenfors I had not received any notice from the Dickinson county bureau of social aid in regards to plaintiff’s exhibit ‘A’. After I heard about the alleged sale to Gilbert Stenfors, I did go to the bureau of social aid and asked for my signed copy of plaintiff’s exhibit ‘A’. They informed me that they would have to give it to me. They said they did not have to have any release from the welfare department to sell the property. That was why it was sent back. A release or approval was not required.”
Evidently all parties concerned at the time exhibit A was executed concluded that obtaining the approval by the director of the State department of social welfare incident to the sale of the Hill farm was necessary. Doubtless this was because of the following provision in the statute:
“Any person who knowingly buys or aids or abets in buying or in disposal of the property of a person receiving assistance or relief without the consent of the director or supervisor of the State department (of social welfare), shall, if the amount involved shall be of the value of $100 or less, be deemed guilty of a misdemeanor, and shall, if the amount involved shall be 'of the value of more than $100, be deemed guilty of a felony.” CL 1948, § 400.60 (Stat Ann 1949 Cum Supp § 16.460).
Pending the return of exhibit A, the defendant, Gilbert Stenfors, contacted the Hills and for the consideration of $2,500 obtained from them, by warranty deed, the title to their farm. This deed was executed and recorded on November 6, 1950. The present suit was instituted by plaintiff January 6, 1951.
The primary question in this litigation is whether the document submitted in evidence as exhibit A was intended to be a memorandum of an agreed sale of the farm, and as such constituted a sufficient compliance with the requirements of the statute of frauds touching the transfer of real property. A careful review of this record brings the conclusion that it was not sufficient for the following reason: Exhibit A was procured by the Hills and executed by them, and also by the plaintiff, not for the purpose of evidencing a contract of sale and purchase of the Hill farm, but instead for the sole purpose of complying with an assumed requirement of law which would enable the parties to consummate the transaction. The foregoing conclusion seems justified by the form and substance of the paper obtained at the Dickinson county social welfare office. This exhibit A, in large letters, is headed: “APPLICATION FOR PROPERTY TRANSFER” and beneath this heading is the following:
“State of Michigan “Department of Social Welfare “Lansing 4, Michigan
“Application is hereby made to the director of the State department of social welfare for the approval to transfer the following described property, as required by section 60, Act 280, PA 1939.
(An accurate description of the property is here inserted.)
“The applicant Victor Hill a recipient of Old Age Assistance desires to transfer this property to Mr. Thorsten Gedvick whose relationship is None. The conditions of transfer, and pertinent provisions as provided for in the instrument of conveyance executed by the recipient, recorded, or to be recorded are as follows:”
At this point there is typewritten in the printed form of this exhibit A a statement of the respective ages of Mr. and Mrs. Hill; that they propose to enter the Serapta Rest Home; the sale price of the farm, which is considered to be “full value for the farm,” and also some other matters not deemed material to this suit. Thereafter the printed form contains the following:
“Burial Agreement has/has not been made a part of the provisions in the instrument of conveyance. The vendee, for himself, his executors and administrators, does/does not hereby covenant to provide decent burial for the said....................upon ............death, and to pay all expenses for said burial, the cost of said burial not to be less than $100.”
The above is followed by the witnessed signatures of the Hills and plaintiff Gedvick; and thereafter is printed on the blank form of exhibit A an .“Approval ' oe the Supervisor, Bureau oe Social Aid.” This exhibit A was executed by all parties on October 26, 1950.
It appears from the record that Rev. K. Y. Myldrinen took part in the execution of exhibit A because of his personal interest in the Hills, 'who were prospective inmates of the Serapta Rest Home. His testimony was: “I merely acted as interpreter and witness.” He further testified: “I knew they had permission from the welfare department to sell the. property to anyone whosoever they wanted.to. I didn’t pay any attention to whom they sold it.” In response to a question by the circuit judge, Rev. Mykkinen also testified:
“Judge Dehnhe: * * * Was this (that exhibit A was an application for property transfer) explained to the Hills at the time they signed it?
“A. Yes.
“Q. And what explanation was given?
“A. Approval for permission to sell.”
This witness also testified:
“Q. Did you remind the Hills that they signed this agreement tir purchase, plaintiff’s exhibit ‘A’?
“A. We didn’t take it as an agreement. It was approval for permission to sell. * * * The Hills (at. the social welfare office) were given to understand that this paper they had signed was just permission-from the department of social welfare to sell the-property. They were made to understand that it was like an application for permission to sell.”
The requirement of the statute of frauds (CL 1948, § 566.108 [Stat Ann § 26.908]) is a written contract of sale, or some note or written memorandum of the sale, signed by the party making the sale. It quite conclusively appears from the record that exhibit A was not'intended by the parties who signed it as a contract to sell, or a memorandum of a contract to sell, and should not be construed as such. In fact at the time exhibit A was executed by the parties each of them considered a sale had not been made or, ¡finally agreed upon and conld not be made until permission to sell was first obtained from tbe State ■welfare department. .At the time exhibit A was , signed by the Hills they were assured that they were signing it only for the purpose of obtaining “approval for permission to sell.” It would be only by approving a misleading of these aged and unlettered people that exhibit A could be held to be a binding 'memorandum of a sale to plaintiff. Such does not appeal to equity.
Further, exhibit A is insufficient to comply with-•the statute of frauds in that it does not fix any of' '3 important elements of the alleged agreement of, sale — i.e.: (1) Time of closing the transaction; (2) ¡manner or time of paying the purchase price; or (3) the time of giving possession to the purchaser. 'In a recent decision we have indicated the requisites of a memorandum to constitute compliance with the ■statute' of frauds:
“Instrument presented as land contract in suit for specific performance must be taken as it is and if the parties are named and all of them signed it, the property is described, the price and terms of payment and time of performance are all-definitely fixed, the instrument will' satisfy the statute of frauds.” Borkowski v. Kolodziejski (syllabus), 332 Mich 589.
“It has been held by this Court that a memorandum, to be sufficient under the section [of the statute of frauds] involved, * * * must be complete in itself, and leave nothing to rest in parol. Gault v. Stormont, 51 Mich 636. And that it must be certain and definite as to the parties, property, consideration, premises, and time of performance. Rosenbaum v. Tyszka, 192 Mich 457.” Cooper v. Pierson, 212 Mich 657, 660.
In view of our conclusions hereinbefore noted, there is no occasion for our passing upon plaintiff’s claim that the purchaser of the Hill farm, Gilbert Stenfors, was not a purchaser in good faith. A decree may be taken in this Court dismissing plaintiff’s bill of complaint, with costs of both courts to appellants.
Dethmers, Btjtzel, Carr, Sharpe, and Reid, JJ., concurred with North, C. J.
Bushnell and Boyles, JJ., concurred in the result. | [
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Butzel, J.
Defendant appeals from his conviction of the misdemeanor of indecent exposure, CL 1948, § 750.335 (Stat Ann § 28.567). He was sentenced to 6 months in jail, the maximum penalty being 1 year. The circuit judge heard the case without a jury. The complaining witness, whom we shall refer to as Mary Lou, was a young girl. She went to a theater in Port Huron on the last Saturday afternoon in August, 1946, and was accompanied by tbe young children of her brother. Defendant occupied the seat next to her. He opened his trousers, exposed and handled his private parts and tried to take her hand and place it on the private parts. She thereupon left with the children, told the usher what had taken place, and she told her to take seats in the front of the theater. A few months later she saw defendant in a doctor’s office where she went for treatment and immediately ran home and told her mother. She had seen the defendant once again in the theater while she was buying some candy. Mary Lou was the sole witness for the people. She testified in a straightforward manner. Defendant did not testify, nor was he obliged to nor did he produce any witnesses. The conviction by the trial judge is not contrary to the law and is supported by the testimony.
Although the defendant was solely charged with the misdemeanor committed in August, 1946, the prosecution undertook to show how defendant subsequently at the theater had tried to have Mary Lou meet him. The court of its own accord stated that this was subsequent testimony and doubted the admissibility. He asked what the prosecution proposed to prove. The prosecutor stated that he wanted to show the habits of the man. The court, thereupon, said:
“The court knows this man is in the habit of doing these things. I have had to sentence him before. Mr. Benedict knows I know and Mr. Turner knows that I know he is what is termed a sex degenerate and as yet we haven’t arrived at a place of intelligence where we know how to handle it; it is one of the instances where we are puzzled as to what to do. It has been established that they have to be sentenced and have to be punished.”
Counsel for defendant interposed no objection whatsoever. The court shortly thereafter stated:
“This man here is entitled to a fair trial. Now, it doesn’t make any difference what I know about him and what I think about him. I still have to give him a fair trial.”
Under the circumstances there was no error.
Defendant further claims that it was reversible error because the prosecutor did not subpoena a young girl who sat next to the children whom Mary Lou took to the theater nor indorse her name on the information. Mary Lou knew this girl from the Scout Camp but did not know her last name or her address in Greorgia at the time of the trial. It is obvious that this girl could not be subpoenaed as a witness nor was it at all certain that she had seen defendant’s actions as she sat 2 seats away from him.
It is also claimed that the usher should have been called as a witness. At the most, she could only testify to what Mary Lou had told her. Defendant did not ask to have the name of the usher indorsed on the information. The objection, even if it had any merit, comes too late. People v. Dimitroff, 321 Mich 205. At most, the testimony of the usher would have been only corroborative of part of what Mary Lou had sworn to. There was no reversible error.
The conviction is affirmed.
North, C. J., and Dethmers, Carr, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred.
See Const 1908, art 2, § 16.—Reporter. | [
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Manning J.:
This is an appeal from an order setting aside a sale of mortgaged premises on a decree of foreclosure, after the confirmation of the commissioner’s report of sale; and a motion is made to dismiss the appeal, on the ground that the order setting aside the sale is not a final order. By the sale, report and confirmation —there being no appeal taken from the order of confirmation — the purchaser’s right under the sale became vested, without any further action on the part of the court. The order appealed from deprives him of this right. It contemplates, it is true, further proceedings on the decree, affecting the rights of the parties to the decree; but it does not contemplate any further proceedings whatever touching the right of the purchaser. As to him the order is final. It puts an end to his rights. As purchaser, he has no interest in, and is not a party to such further proceedings, whether he bo a party to the foreclosure suit or not.
In Baker v. Pierson, 5 Mich. 456, we held that an appeal would lie from an order denying a writ of assistance to a purchaser at a mortgage sale, to put him in possession of the mortgaged premises.
The motion must be denied, with costs.
Martin Ch. J. and Campbell J., concurred.
Ciiristiancy J., was absent. | [
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] |
Butzel, J.
Plaintiff, George G. Zannoth, an architect, sought recovery in 1 suit for architectural services rendered during 1946, and 1947 for Booth Radio Stations, Inc., defendant, for 4 different building jobs, 2 in Flint, Michigan, and 2 in Highland Park, Michigan. They will be discussed separately where different problems are involved.
The 2 buildings in Flint were completed. Those in Highland Park were to consist of a small transmitter station, and also a large building on Midland ■avenue for a studio and transmitter station. .The latter building was never built and defendant contends that plaintiff has failed to prove any liability, even on a quantum meruit count, for any services rendered in ■ planning this building. Defendant agrees that there is still an amount due plaintiff for services rendered for the 2 Flint buildings, but plaintiff disputes defendant’s claim that certain credits should be allowed as setoffs. There is also a dispute in regard to the charges for plans for the small transmitter station in Highland Park.
At the end of the trial, after both sides had rested, the trial judge decided that the case presented no questions of fact, but only those of law, and directed a verdict in the full amount claimed by plaintiff for work on the 2 buildings in Flint and plans for the small station in Highland Park, amounting in the aggregate to $7,284.48 and $50 costs; at the same time directing a verdict of no cause of action in favor of defendant on plaintiff’s claim for architectural fees for the large Highland Park building.
Plaintiff appeals from the disallowance of his claim for services for the contemplated large Highland Park building, and defendant cross-appeals from amounts allowed plaintiff for the other 3 buildings. The case is appealed on 1 record which contains the testimony in regard to the various claims.
Flint jobs. The parties contracted for the construction of a radio transmitter building on Bristol road in Flint on December 17, 1946. The contract provided as follows:
“The owner agrees to pay the architect for such services a fee of 6% of the cost of the work. * * * Charges for previous preliminary work submitted before Dec. 17, are at the rate of $6 per hour, as set forth in letter of November 30, 1946. * * *
“1. The architect’s services. — The architect’s professional services consist of the necessary conferences, the preparation of preliminary studies, working drawings, specifications, large scale and full size detail drawings; the drafting of forms of proposals and contracts.”
Another contract for remodeling a store at 112 W. Water in Flint for radio broadcasting studio and offices was signed on February 17,1947, and contains similar provisions except that 8% of the cost of the ■work was to-be the base rate.
In each, case, it appears that plaintiff did some work consisting of drawing sketches, plans and specifications, as well as participating in certain conferences, before the contracts were signed.' All of the work before the dates of such contracts was billed and paid for at the rate of $6 an hour by defendant. The cost of the buildings and the percentage thereof to which plaintiff is entitled was agreed to by the parties. The only dispute appears to be whether or not defendant is entitled to offset the payments made for work done prior to entering into the written contracts against plaintiff’s stipulated fees under the contracts. The trial court denied the offset.
There was no error. Ordinarily tinder the standard architect’s contract, the base rate, as is specified by the parties, would include all of the work done by the architect, as nothing therein is said about 2 kinds of preliminary work; but the instant contracts clearly state that previous preliminary work will be paid for at the rate of $6 an hour. Defendants contend that the hourly provision was simply a method of devising payments from time to time to apply on the fees for the completed building. However, there would be no reason for adding a provision for such payments as the method of payment under the contract is already covered by the standard form of •architect’s contract. Judgment denying defendant the right to offset payments and holding in favor of plaintiff for the amounts claimed by plaintiff and as found by the trial court is affirmed.
Highland Parle studio and transmitter building. Plaintiff first was contacted by defendant relative to building a broadcasting studio and transmitter building on Midland avenue in Highland Park on September 9,1946, when John Lord Booth, president of defendant, proposed a very complete and attractive building. During the following winter plaintiff drew various preliminary sketches of the proposed. building and delivered the first blueprints in February, 1947. To the Civilian Production Administration plaintiff estimated the cost of the building as $45,000, but it is claimed and not denied that this was at the request of Booth, who hoped a smaller building’ would .be approved more readily.
Karl B. Foster, a general contractor, was contacted by Booth in March, 1947, relative to the construction of such a building which Foster thought at the time would cost at least $250,000. Preliminary work on the site began April 1st. In the meantime, work on the-2 Flint jobs had been begun and was concluded later in 1947. Their cost went far beyond the original estimates. After a certain number of conferences relative to the Highland Park building, the work was abandoned until June when CPA restrictions were lifted.
Early in July, 1947, public ground-breaking ceremonies took place at the site. Booth publicly stated that the building was to cost $100,000. After more preliminary plans and sketches, and on August 6, 1947, the written agreement was signed providing for 8% of final cost as plaintiff’s fee. During August, 1947, both parties made a definite attempt to cut the cost of the proposed building. Plaintiff, Foster and Clark, the vice-president of defendant, met at Flint just prior to August 25th and Clark testified he stated there that the cost of such building could be no more than $55,000, or a simple transmitter building should be built instead. Plaintiff and Foster deny that costs were discussed at the meeting. On August 25, 1947, Booth requested that a substantial part of the proposed building, including the entire second floor, be omitted from future planning' in an effort to cut final building costs. Obviously he expected the costs to be cut substantially by such extreme measures.
On September 4, 1947, Booth wrote plaintiff a letter in which he directed further omissions and explicitly stated that the building was not to cost in excess of $52,500. Plaintiff; replied on September 6th that no estimate of costs could be made until the plans were complete in detail. He consistently maintained this position until November, 1947, when the first bids were received, in the meantime, refusing to make any kind of statement as to what the costs of the project would be. The general contractor had not been notified of the maximum which had been set.
Construction planning meetings were called by defendant for September 10 and 12,1947. On the 10th, requirements for the building were discussed and the preliminary plan, the so-called “Scheme G” was revised to “Scheme G-l” which was presented on ' September 12th and completely gone over with a view of cutting down the building to the minimum requirements. It is clear from the testimony that the emphasis during the meetings was on how little defendant could get along with. It is also clear that the materials, size and layout were finally dictated by Booth, who at the time was at least reasonably familiar with the costs of similar construction in Flint. Booth said he could not get along with less than the requirements in “Scheme G-l” even though he wanted to cut costs. He gave the final order to go ahead on “G-l” but did not mention the maximum cost at the meeting. He stated to Karl Foster, the contractor, plaintiff’s witness,
“All right * * * that is what we have got to have. * * * Karl, it is up to you now to keep this cost down.”
Immediately after the September 12th meeting, however, Booth called Foster outside the conference room and asked him how much the .construction would be, saying, “Give me some idea, is it going to ' cost $100,000?” to which Foster .answered that it ■would cost that and more. Booth did not call off the work on receipt of this information. Foster testified, however, that Booth told him, “I better not” or words to that effect.
On September 15th the “Gr-1” sketches were revised to incorporate changes made at both meetings and delivered to Booth; and on September 16th, plaintiff wrote Booth that he was proceeding with complete plans and specifications in order to give him the cost estimates he desired. Final plans in accordance with “Scheme Gr-1” were completed by plaintiff on October 22, 1947. On October 18th, Booth had specified more omissions arid stated that the building should not cost over $55,000 when completed, but on October 22d plaintiff replied that it was too late to incorporate the omissions in the plan and that the “scheme is based on your minimum requirements, and economical construction, and not' on the basis of the cost mentioned in your letter.”
On October 27th, Booth wrote to Foster that he had decided to delay construction until February 1, 1948, but again asked for estimates. Also, on or about October 27th, Booth was informed by Foster that the building would cost not less than $100,000, and Booth again made a remark to the effect that surely they would not build such an expensive building. Foster’s information evidently inspired Booth’s letter of October 28th in which he wrote plaintiff, asked for estimates, and stated, “In order for us to go through with this building, * * * it cannot
cost more than $45,000,” at the same time omitting more of his requirements. However, Foster testified that after the receipt of such letter there was a general meeting where everyone agreed it simply could not be done and Booth agreed to drop his cost requirements. Foster also stated that this was the first time he realized that Booth actually contemplated a cost of less than $100,000. In view of other undisputed testimony, including Booth’s letters, however, it seems highly unlikely that Booth gave any intimation that he expected the cost was to run to the high estimates which finally resulted, for he made it clear that he expected the cost to be much less.
Early in November, 1947, Foster prepared such cost estimates, amounting to $142,000 for the building and presented them to Booth. He testified that the reasonable cost of construction of the building would also be $142,000. This was almost 50% more than the $100,000 cost which had originally been contemplated by defendant, before the above-mentioned omissions. By November 5th, Booth decided not to proceed with construction and defendant requested that plaintiff and Foster plan and build a small transmitter building instead. Plaintiff had also been asked to make plans for a studio building on East Adams avenue in Detroit. Before he did any work on same, and on November 25th, Booth wrote him as follows:
“You disregarded the limits fixed by us as to the cost of the work. * * * You were advised of said limits before you performed any services under said contract. * * *
“We therefore consider our contract with you to have been breached by you and to be at an end.”
The contract of August 6, 1947, is the standard one provided by the American Institute of Architects, similar to those used on the Flint jobs, and contains the following provision:
“Preliminary estimates. — When requested to do so the architect will furnish preliminary estimates on the cost of the work, but he does not guarantee the accuracy of such estimates.”
It is the rule in Michigan that an architect must stay within the cost set by the owner, even though such cost was not set out in the written contract be tween the'parties. See Wetzel v. Roberts, 296 Mich 114. The first cost limitation set hy defendant was either at the disputed Flint meeting in the latter part of August or by Booth’s letter of September 4th. Plaintiff, therefore, was clearly entitled to recover something for his services rendered before the cost limitation was set. Already on September 4, 1947, Booth had written to plaintiff that the building was not to cost in excess of $52,500 including contractor’s fee, but exclusive of the footings for the tower and that was the figure “we should hold it to.” While there were further discussions largely with the view of cutting down the expense of the building, plaintiff did not give defendant any estimate of the cost, or refuse to go ahead on the minimum cost set by defendant.
On October 18, 1947, defendant again wrote to plaintiff ordering further omissions from the building and stating the building was not to cost over $55,000. Plaintiff seemed unwilling to give any estimate of cost until finished plans and specifications were submitted to contractor. Plaintiff frankly testified in answer to the question propounded by the judg’e that he could not give an estimate to defendant as to whether the building would cost $200,000 or $50,000. This certainly showed that he was proceeding regardless of cost. It must he assumed that as an architect he must have had some idea of costs. There seems to have been some misunderstanding between the parties, but plaintiff insisted on going ahead when he had been warned and had every reason to know that defendant had no idea that the building would cost $142,000, the amount of 'the bid that was received after plaintiff finished his plans and specifications and long after he had been told by defendant that the building should cost -far less than one-half the amount of the bid.
Applying the rule that plaintiff contends for in regard to the payment of $6 an hour for preliminary work prior to the contract, plaintiff’s own statements show that he did charge at the rate of $6 an hour or $639 for 106-J hours for fees earned prior to entering into the contract in August, 1947, and defendant paid this amount as well as additional expenses. As late as September 12, 1947, plaintiff submitted a bill for the period from August 1, 1947, to September 1, 1947, in which he charged $39 for meetings and revision of sketches, and which defendant also paid. Plaintiff has therefore been reimbursed for all services rendered prior to the first cost limitation.
The trial court rejected all claims which plaintiff made for recovery on quantum meruit for a part or all of the work done after the first cost limitation was set. Plaintiff alleges that the cost limitation was waived after the September 12th meeting, but the facts do not indicate that such was the case, as elsewhere appears. Defendant received no benefit from work done during any of the time that plaintiff was proceeding to draw plans which could not be used by defendant contrary to defendant’s instructions. Plaintiff having breached the contract as hereafter will be shown, and defendant receiving no benefit whatsoever from ' plaintiff’s performance thereof after September 1st by reason of .such breach, quantum meruit is not proper. Becovery cannot be had on a quantum meruit by a person who breached the contract against one receiving no benefit from the performance of the services for which recovery is sought. The trial court did not err.
The trial court also ruled that plaintiff had breached the contract and could recover nothing thereon by reason of his exceeding the cost limitation on ■ the building. Plaintiff contends that the primary concern during the negotiations was plans and specifications, not cost; that Booth should have known that his requirements would result in a building far above the minimum he set; that his contract absolves him from responsibility for cost estimates; and that defendant waived the maximum cost limitations both after the meeting on September 12th and at the meeting after October 28th.
The record, however, reveals that cost was an important factor all during the planning of the building; that plaintiff was aware that defendant would have to borrow money for the building and was concerned about rising costs on the Flint projects. As an architect, plaintiff possessed knowledge of building cost superior to that of defendant’s officers. It was plaintiff’s affirmative duty to give defendant some idea of the final cost of the project, regardless of whether defendant should have known of its possible cost or not. Plaintiff’s contract did not absolve him from the duty of disclosure under these circumstances. As stated in 3 Am Jur, “Architects” on p 1000:
“The relationship between an architect, employed to furnish plans and superintend construction, and his employer, which is frequently characterized as an agency, is one of trust and confidence. Good faith and loyalty to his employer constitute a primary duty of the architect. He is in duty bound to malee full disclosure of all matters, of which he has knowledge, which it is desirable or important that his principal should learn.” (Italics ours. Citing Edward Barron Estate Co. v. Woodruff Co., 163 Cal 561 [126 P 351, 42 LRA NS 125]).
Although even if we assume defendant’s officers may have waived the various minimum requirements set out by proceeding with the planning, and particularly after October 28, 1947, we do not believe this can be construed as a waiver of their right to object to plans for a building which would cost almost $100,000 more than the figures set by defendant. It is true that although Foster stated on 2 occasions previously that the building would cost $100,000 or more, in each of these cases Booth made it quite plain that he had no intention of building such an expensive station; and at no time did plaintiff give defendant any indication of what the real price would be, but instead proceeded with plans despite his knowledge that in any case his plans could not be drawn to provide for a building to cost less than $100,000. The whole course of planning indicated that defendant contemplated a building costing far less than $100,000; that the plans of July, 1947, from which defendant had contemplated he would build for $100,000, had been substantially cut so as to provide for a . much smaller size and immensely cheapened in the kind of facilities and building materials to be used, and that defendant had expected the price to- be correspondingly lessened.
That in proper cases cost of construction may be a condition precedent to recovery for architect’s services is shown by the annotation at 127 ALR 410:
“Architect’s or engineer’s compensation as affected by inability to carry out plan or specifications at amount satisfactory to employer.”
The rule stated in 127 ALR on page 411, and supported by a large number of citations, is as follows:
“Where an architect is employed to prepare plans for a building to cost not more than a certain sum, or on condition that the building can be erected for a certain sum, it has'usually been held that the architect is not entitled to compensation unless the building can be erected for the stipulated amount.”
See, also, 3 Am Jur, “Architects,” § 15; Wetzel v. Roberts, supra, and Loyal Order of Moose, Adrian Lodge 1034, v. Faulhaber, 327 Mich 244.
Plaintiff relies on 127 ALR 415, citing Clark v. Smith, 234 Wis 138 (290 NW 592, 127 ALR 406). That case is authority for the proposition that where 'plans are prepared according to details dictated by the owner, the owner is financially able to pay for the building planned, and the cost is not fixed in the agreement, and not mentioned until the plans are completed, the owner cannot object upon completion of the plans if the cost is more than he desired. It did not involve a situation where cost was a matter of concern to all parties from the inception of the planning, as we have here.
Counsel for plaintiff cite numerous other cases which we have carefully examined hut which, also by reason of different factual situations, are not relevant here. The record here clearly indicates the desire of the defendant to cut the cost of the building far below the $100,000 contemplated to be paid in July, 1947, and indicates that plaintiff was fully cognizant of such purpose. There was a breach of the architect’s duty to make full disclosure even if the maximum cost limitation set by defendant was waived, when without discussion, plaintiff proceeded to draw plans he knew would so far exceed defendant’s ability and willingness to pay, and further that it was not, even within the owner’s contemplation to erect such an expensive building.
The trial court was therefore correct in denying plaintiff recovery for the value of his services or on his contract for the larger Highland Park building. Its judgment is affirmed.
Small transmitter building. Plaintiff alleges that complete plans were prepared for the small substitute transmitter building as of November 18,1947; that the estimated cost of the planned building was $17,000; that the standard architect’s fee in such case is 75% of 8% of the estimated cost of construction, or $765. Defendant, on the other hand, alleges that plaintiff was employed at the rate of $6 an hour to prepare sketches; that such sketches were adequate; but that plaintiff is entitled to nothing for Ms plans as he had not prepared complete ones by tbe time tbe employment was terminated. No testimony as to tbe value of tbe plans actually prepared was introduced except tbat of plaintiff tbat bis services were worth $765, and tbat of Clair W. Ditchy tbat 8% was a reasonable fee on tbe type of job involved.
Defendant introduced testimony that tbe cost of construction of the unit finally built was $13,254.84. As tbat building was based on a different set of plans, its cost is immaterial in determining tbe value of plans submitted by plaintiff.
Tbe trial court held tbat as it was shown tbat plans were submitted before termination, and the only testimony thereof came from plaintiff, to tbe amount of $765, and tbat plaintiff was entitled to a judgment for tbat amount plus interest. Defendant alleges error.
There is no showing on tbe record tbat defendant has reimbursed plaintiff for any of bis'work on sketches or plans, either at tbe hourly or percentage rate. It also appears tbat plaintiff prepared whatever plans be did under direct orders from- defendant.
As there was introduced no proof tbat tbe contract was on an hourly basis, as alleged, we must, therefore, assume that plaintiff on completing tbe plans would be entitled to $765. As tbe plans were substantially completed as contemplated, tbe trial court did not err in its determination.
Judgment affirmed. As neither party fully prevailed, no costs will be allowed.
North, C. J., and Dethmers, Carr, Btxshnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Carr, J.
Plaintiff was injured as a result of the breaking of a bottle containing coca-cola. The occurrence took place on October 23, 1947. On that date a special train was operated by the Grand Trunk Western Railway Company-from Port Huron to Chicago for the accommodation of passengers desiring to attend an International Harvester convention in the latter city. Plaintiff’s employer, the Canada Railway News Company, made arrangements for the serving of soft drinks and other refreshments on the train, a converted baggage car being equipped for that purpose. A counter was installed running lengthwise of the car over which the waitresses, including the plaintiff, served refreshments to the cus tomers. Beneath the counter was a metal container, divided into 2 sections referred to in the record as “coolers.” In these sections were kept bottles of coca-cola which, it is conceded, were purchased from the defendant by whom the product was prepared and bottled. In each section of the container a quantity of chipped and broken ice was placed, the purpose being to maintain the beverage at a temperature suitable for drinking.
On the trial of the case it was the claim of the plaintiff that the ice was in the coolers at the time she boarded the train, and that the bottles of coca-cola were packed therein by the employees of the Canada Railway News Company. She testified further that at about 8:30 in the morning, as the train was approaching the city of Battle Creek, she reached into the cooler for the purpose of taking out a bottle to serve a customer. As she did so, and before she had touched the bottle, it exploded with a “bang.” Her right hand was cut by pieces of glass. She was given temporary treatment for the injury and at Battle Creek was removed to a hospital, where first aid was given and a surgical operation performed. Thereafter plaintiff returned to her home in Port Huron.
In her declaration plaintiff averred that it was the duty of the defendant to exercise due and proper care in the bottling of its product, and to regulate the operation in such manner that force or pressure within the bottle would not develop to such a degree as to break or shatter it. It was further averred that defendant negligently failed to observe the duty resting on it, and that the injury to the plaintiff resulted from such negligence. Defendant by its answer denied any lack of due and proper care on its part in the preparation and bottling of the coca-cola.
At the conclusion of plaintiff’s proofs, defendant moved for a directed verdict on the ground that no actionable negligence on its part had been shown and that the facts established by the proofs were insufficient to support an inference of negligence. The mo-' tion was taken under advisement under the provisions of CL 1948, § 691.691 et seq. (Stat Ann and Stat Ann 1951 Cum Supp § 27.1461 et seq.). Following the introduction of testimony on behalf of defendant the motion was renewed, decision again reserved, and the case submitted to the jury by which a. verdict in plaintiff’s favor in the sum of $1,500 was returned. Thereafter motion for judgment notwithstanding the verdict was made, and denied. Defendant has appealed, claiming that such denial was erroneous. The sole question presented is whether the proofs of the plaintiff were sufficient to permit the submission of the case to the jury.
On behalf of appellant it is insisted that the testimony of plaintiff and her witnesses did not establish facts sufficient to support legitimate inferences of negligence on its part. The claim is emphasized that proof showing the happening of an accident is not enough to permit a finding of actionable negligence. The doctrine of res ipsa loquitur has not been adopted in this State. Rebentisch v. Korda, 331 Mich 656, 661. This does not mean, however, that such an inference may not properly be drawn from facts and circumstances surrounding the occurrence in which an injury has been suffered. In Burghardt v. Detroit United Railway, 206 Mich 545 (5 ALR 1333), the Court, in reversing a judgment for the defendant entered upon a directed verdict, said:
“This Court has not adopted the rule res ipsa loquitur; we have uniformly held that the happening of the accident alone is not evidence of negligence; and we have as uniformly held that negligence may be established by circumstantial evidence, and that where the circumstances are such as to take the case out of the realm of conjecture and within the field of legitimate inferences from established facts that at least a prima facie case is made. Alpern v. Churchill, 53 Mich 607; Barnowsky v. Helson, 89 Mich 523 (15 LRA 33); La Fernier v. Soo River Lighter & Wrecking Co., 129 Mich 596; Stowell v. Standard Oil Co., 139 Mich 18 (17 Am Neg Rep 569); Elsey v. J. L. Hudson Co., 189 Mich 135 (LRA1916B 1284); O’Donnell v. Lange, 162 Mich 654 (Ann Cas 1912A, 847); Harris v. Royal Oak Savings Bank, 187 Mich 407; Sewell v. Railway, 158 Mich 407 ; Gerstler v. Weinberg, 160 Mich 267; Congdon v. Railway Co., 179 Mich 175; Bayer v. Grocholski, 196 Mich 325.
“In Barnowsky v. Helson, supra, it was said:
“ Tn this case the falling of the roof was in and of itself some evidence that the work of raising it was not being done with the ordinary care and skill. It is true that the mere fact of any injury does not impute negligence on the part of anyone, but where a thing happens which would not ordinarily have occurred if due care had been used, the fact of such happening raises a presumption of negligence In someone. * * *
“ ‘This roof not properly supported would fall as a natural result of the laws of gravitation, but if properly braced there would be no reason for its falling from that cause, and it would not fall from any other cause without the interposition of the elements or some human agency. Therefore., without any other showing than that it suddenly gave way, slipped or tipped to one side, and fell, the presumption is almost conclusive that it fell because it was not sufficiently braced or stayed.’
“In Sewell v. Railway, supra, Mr. Justice Montgomery, speaking for the Court, said:
“ ‘It is the settled rule of this State that negligence of the defendant must be proved, and that an inference of negligence is not to be drawn from the mere fact of an accident. But it has also been held In numerous cases that the circumstances attending an injury may be such as to justify an inference of negligence. As in the present case, if all that ap pearéd had been.' that the plaintiff was riding in a car of the defendant under the control of its servants, and the car in which plaintiff was ridipg continued its course until it collided with another car ahead of it standing still, with sufficient force to push the still car ahead 75 feet, the inference that some one had blundered prima facie would be the most natural one to be drawn, and that inference is so clear that it would not require further proof of negligence on the part of the defendant.’ ”
In Hazen v. Rockefeller, 303 Mich 536, plaintiff, a customs inspector at Sault Ste. Marie, Michigan, was struck and injured by an open door on a car driven by defendant. The record in the case indicated that the door flew open, after the vehicle was started, because not securely closed. The responsibility for such .condition was in dispute. After pointing out that negligence could not be presumed, and that the burden of proof was on the plaintiff to establish that defendant was negligent and that such negligence constituted a proximate cause of the accident, it was said:
“There is no direct testimony that defendant opened or closed the car door in question. The conflict between the testimony of defendant and that of plaintiff and Inspector Baker presented a question of fact as to who closed the door. There is testimony from which the trial court, as trier of the facts, could reasonably find that defendant closed the door. From the evidence and the circumstances of the accident a logical and legitimate inference could be drawn that defendant did not properly close the door. Furthermore, a logical and legitimate inference could be drawn that the door swung open and struck plaintiff because defendant had not properly closed it. Such inferences could properly be drawn from the testimony and circumstances of the accident, without resorting to speculation, conjecture, or guess.” '
See, also, Ebers v. General Chemical Co., 310 Mich 261 (17 NCCA NS 660); Trafamczak v. Anys, 320 Mich 653.
In the case at bar plaintiff’s testimony was, in substance, that the bottle exploded as she was about to remove it from the container, and that she ivas cut by flying pieces of glass. It was her claim that she did not touch the bottle. There is nothing in the record to indicate that any external force whatever was applied to it immediately prior to the breaking. Plaintiff’s testimony is corroborated by that of her witness, Mrs. Forro, a fellow employee, who testified in part as follows :
“Mildred bad her hand over the bottle, but she wasn’t touching the bottle. And there was one round of explosion and the coke bottle blew.
“Q. Did you see the bottle blow?
“A. I felt the glass hit me. * •* * Yes, it blew. ■ Some of the- glass hit me, you know, didn’t cut me at all, but I felt some of the glass hit me as the bottle blew.
“Q. Did you hear any sound?
“A. One big bang. * * *
“Q. It was a bottle that was standing upright ?
“A. It was one of the bottles that was standing upright.
“Q. You didn’t touch the bottle ?
“A. No, I didn’t.
_ “Q. She Was reaching before you were there ?
“A. Yes; she got her hands there before I did.
“Q. Did you observe how far her hand was from the bottle ?
“A. About 3 inches away from the bottle.”
Another witness testified that she Avas' working in the car with plaintiff and that about half an hour before the explosion of the bottle that injured plaintiff another bottle exploded as the witness was reaching into the cooler. The witness further testified that she picked up the pieces of the bottle and laid them on a shelf behind the counter, and that she also, following the occurrence in which plaintiff was injured, picked up the pieces of the second bottle which were also placed on the shelf. The record further indicates that the car was cleaned after the train reached Chicago, and that the broken pieces of the bottles were removed and were not available as evidence at the time off the trial.
Plaintiff also called for cross-examination the superintendent of defendant’s plant at Port Huron. He testified as to the method followed in bottling coca-cola, including the cleaning of the bottles, the placing of an ounce of'prepared syrup in each bottle, the introduction off 5 ounces of carbonated water, the capping of the bottles, a shaking process to mix the syrup with the carbonated water, and the final loading and storage of' the product. The following excerpts from -the testimony of this witness indicate the customary procedure:
ffWe make examinations of the bottles before they are filled with fluid and so forth. That examination is made between the washer and- the syruper. A man sits there and looks at the bottles as they pass iii front of a fluorescent light. A man is stationed there at all times and the man is changed every half hour. That is all the particular man does for the half hour he is there, is inspect bottles. If the bottle is all right, he doesn’t touch it at all. If he observed something, he takes it out. Approximately 55 bottles pass through a minute. That would be roughly 3,000 bottles an hour. Carbonated water is.placed in the bottle, but not under pressure — it falls by gravity into the bottle. It is gravity filled bottles. The water is already carbonated. The water contains CO2 gas before it goes into the bottle. The CD2 gas is obtained in the form of dry ice from the D.ean Chemical Company of Detroit. We have a carbonator. The gas is saturated with water inside the carbonator. In a manner of speaking, it is manually controlled. We do not necessarily regulate that gauge from time to time in the bottling process. We have a .gauge that regulates the amount of gas that goes into the carbonator, that’s manually operated. It is a manually regulated valve. The volumes of CO2 gas that we apply into the carbonating’ machines varies in accordance with the temperature of the water that we are using. The purpose of using carbonated water in making coca-cola is taste value. We have a filler that fills the bottles and syrup is the extract that we use. We use one ounce of syrup. !iS * *
“One bottle is filled with syrup at a time. It then passes into the filler. That is the machine where the carbonated water flows into the bottles. It fills 18 bottles at one time. There is a gauge on that machine’ to show the temperature of the water in the filler and there is a gauge that gives the pressure of the filler. There are 2 gauges — a temperature gauge and a pressure gauge on the head, that is a tank on top of the filler apparatus. There are 18 openings on the machine; it is an 18-valve machine. The one gauge gives the pressure for all T8. * * *
“Q. When the temperature of your water which you use in bottling rises, then you change the pressure gauge as to your carbon dioxide gas?
“A. Yes, if it rises to any extent.
“Q. And that, I believe you already stated, was. operated manually or controlled manually?
“A. Yes.
“Q. And what is the range of pressure in the bottled products of coca-cola? In other words, the pressure runs from -where?
“A. What we desire in the finished product?
“Q. That is right?
“A. Three point fifty.
“Q. I don’t mean the volume of the gas in comparison to the water; I mean the pressure that is contained in the product of the bottle?
“A. Well, that dépends on the temperature of the water.
• “Q. Well, doesn’t it vary over a certain range, normally?
“A. Well, it varies with the seasons, you might say.
“Q. I am not referring to the water, hut I mean the pressure in your bottles varies in accordance with the temperature of the water, is that correct?
' “A. Yes, that’s right. * * *
“Q. When the pressure — Strike that, please. When the temperature of the water varies which you are using in your bottling, say that it varied 5 degrees, then you would change the amount of gas that you are applying so as .to maintain that desired ;ratio of three and a half volumes?
“A. Yes, that’s right. * * *
“Q. And I believe I asked you how many bottles you filled in the normal day’s operation, didn’t I?
“A. Yes, run about 34,000 or 35,000.”
. It will be notéd from the testimony of the witness that the pressure gauge was manually controlled, and that the pressure in the bottles varied in accordance with the temperature of the water. The manner in which the bottles were examined before use was apparently deemed adequate to reveal defects. There is no proof in the case indicating that either of the bottles that exploded was defective. As before noted, the testimony on behalf of plaintiff was inconsistent with any theory that the breaking resulted from some external force. If the bottle that injured plaintiff exploded as claimed, with fragments striking plaintiff and her witness, the inference is justified that the cause was excessive pressure within the bottle, resulting from failure to obsérve précautions in defendant’s operation.
A situation analogous to that involved in the case at bar was presented in Macres v. Coca-Cola Bottling Co., Inc., 290 Mich 567. There the plaintiff was in jured by the explosion of a bottle containing coca-cola. She had judgment in the trial court, which was affirmed on appeal. It was there contended, as in the case at bar, that the proofs did not justify an inference of negligence on defendant’s part, and in substance that recovery could be sustained only by applying the rule of res ipsa loquitur. In rejecting the contention, the issues were discussed at length by this Court and prior decisions cited in support of the conclusion that the facts disclosed by the proofs permitted the drawing of legitimate inferences as to defendant’s negligence.-
Counsel for defendant seek to distinguish the present case from the Maeres Case principally on the ground that there the pieces of the exploding bottle were preserved, were introduced in evidence on the trial, and indicated a transverse break approximately 2 inches below the cap. There was also testimony that a bottle broken as the result of excessive-internal pressure ordinarily fractures in the manner indicated by the exhibit. Such proof tended to substantiate the claim that the bottle exploded because of such pressure. In the case at bar no testimony of the character referred to was introduced, and the proofs do not show the pattern of the bottle fracture. However, the basic question at issue is whether the bottle exploded because of excessive pressure developing in the content as a result of improper carbonation. We think that the evidence that the bottle exploded, throwing the particles of glass toward plaintiff: and her witnesses, that no external force of any kind was applied to the bottle from which breaking might have resulted, and that a short time previously another bottle in the same container had exploded under like circumstances, together with' the proof as to the process observed in inspecting and filling the bottles.and regulating the carbonation of the content thereof, was sufficient to support a legitimate conclusion as to the cause of the breaking'. The testimony of plaintiff and her witnesses, together with the testimony given by defendant’s plant superintendent, required submission of the issues in the case to the determination of the jury. The trial court was not in error in denying the motion for judgment notwithstanding the verdict and in entering a judgment in plaintiff’s favor.
The judgment is affirmed, with costs to plaintiff.
North, C. J., and Dethmers, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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North, C. J.
The Michigan inheritance tax statute in part provides:
“Sec. 2. First, (a) Where the person or persons entitled to any beneficial interest in such property shall be the grandfather, grandmother, father, mother, husband, wife, child, brother, sister, wife or widow of a son, or the husband of a daughter * * * such transfer of property of the clear market value of 5,000 dollars shall be' exempt from all taxation-under this act; * * *
“Second. In case the clear market value of the property transferred to each individual of the persons included in the classes specified in paragraph 1 hereof exceeds the exemptions specified in para-
graph. 1, such exemptions shall first he deducted therefrom; when the clear market value of such property shall not exceed 50,000 dollars before deducting such exemptions the transfer of such property in excess of the exemptions herein provided and up to said 50,000 dollars shall be taxed under this act at the rate of 2 per centum of the clear market value thereof.” CL 1948, § 205.202 (Stat Ann 1950 Rev § 7.562).
Plaintiff, Charles J. Heller, under facts about to be noted, asserts that incident to fixing the inheritance tax on a bequest to him in the will of Florence Atherton, deceased, he is entitled to the statutory exemption of $5,000 provided in section 2, subd First (a), and to the so-called preferential rate of 2% provided in section 2, subd Second, of the statute. The defendant, Department of Revenue of the State of Michigan, contends that plaintiff is not entitled to the $5,000 exemption or to the preferential rate. If plaintiff’s contention is correct,, the inheritance tax against the property he would take under the will of Florence Atherton would amount to $393.40, but otherwise it would be in excess of $2,500. The circuit court held with plaintiff. Defendant has appealed.
Decision herein turns upon whether plaintiff comes within the statutory designation of “husband of a daughter” of testatrix, who died in 1950; or whether, on the contrary, since he became a widower upon the death in 1946 of the daughter, Hazel E. Heller, his former wife, he must be held to be the “husband” of a deceased daughter of testatrix and not within the statutory designation of one who, upon fixing the inheritance tax, is entitled to the statutory $5,000 exemption and the preferential rate of 2%.
In determining what is the proper construction of the controverted portion of the statute, we must first look to the context of the statute itself. In doing so a persuasive reason for holding in accord with plaintiff’s contention at once appears. In designating what persons are entitled to the exemption and the preferential rate, the statute • reads: “Husband, wife, (and in the next line) * * * or the husband of a daughter.” Obviously as to an inheritance or bequest to a “husband” or “wife” the statutory provision would be entirely meaningless unless the word “husband” were construed to mean widotoer, and the word “wife” to mean or include widow. Hence, it seems almost inescapable that when in the next' line of the statute the words “husband of a daughter” appear, “husband” as there used should be held to include or be synonymous with widower.
Further, originally the Michigan inheritance tax law was copied in substance from the New York statute in which there was used in like context the identical words in controversy in the instant case; and prior to the enactment of the Michigan statute it was adjudicated in New York that the phrase “husband of a daughter” was intended to include a widower whose spouse had predeceased the testator.
“A legacy to the husband of a daughter of the testator is not subject to taxation under L 1885, c 483, although the daughter died before the testator.” Matter of Woolsey (1887), 19 Abb NO 232 (6 Demarest’s NY Reports 145).
In another New York case, which antedated the 1899 Michigan statute, in passing upon an 1892 New York statute pertaining to inheritance taxes, the. holding was:
“Laws 1892, c 399, § 2, exempting from the transfer tax a legacy to the ‘husband of a daughter’ of testator, includes the husband of a deceased daughter, though he has remarried.” In re Ray’s Estate (NYS syllabus), 13 Misc 480 (35 NYS 481).
In the body of the Bay Case the court also said:
“The word ‘husband’ or ‘surviving husband’ has become so imbedded in our statutes and in all legal phraseology that it has the same force and meaning and the same legal effect as if he had been described as ‘widower.’ If the legislature had intended not to use the word ‘husband’ in the same sense as it has always been used by the laws of this State and by its courts, it would have made its meaning clear, definite, certain, by saying the ‘husband of a daughter, if she be living.’ By omitting to restrict this exemption to a husband whose wife was living, it seems very clear that the word ‘husband’ is here used in its general and accepted sense, which not only common usage but the statutes of this State make use of, and. as the word is ordinarily used and understood in speaking of a surviving ‘husband.’ ”
It is true that the above-noted New York decisions were by surrogate courts, which are not courts of last resort. But no appeal to a reviewing court was taken and for years these decisions seem to have stood as the law of New York, without conflicting decisions so far as we have been able to ascertain, and without any modifying legislation prior to 1930. We are mindful that incident to amending numerous particulars of its inheritance tax statute in 1930, the New York legislature modified the phrase “husband of a daughter” to read as follows •: “The husband or a widower of a daughter.” But that circumstance affords no convincing reason for holding that the prior interpretation of the statutory words was not as intended by the enacting legislature. The amplification of the statutory words may as well have been for clarification as for modification. At least for many years the judicial interpretation seems to have been accepted without legislative action to void such interpretation.
The court of last resort in each of the States ¿bout to be noted has held in accord with the New York decisions. While these courts make some comment concerning the provisions of the New York inheritance tax law and pertinent earlier decisions of New York courts, other reasons are also assigned in support of the conclusions reached.
“In the provision of section 1 of the inheritance tax act of 1909 fixing the rate of tax and the exemption as to near' relatives, the term ‘husband of the daughter’ includes the husband of a deceased daughter of the donor. (Syllabus.) * * *
“It is true that, as generally defined, the word ‘husband’ means a man having a wife, and does not include a widower or a man whose wife has died and who has not remarried, but it is also true that the word ‘husband’ is often used as synonymous with ‘widower’ or ‘surviving husband.’ It is so used in the very section of the act under consideration.” People v. Snyder, 353 Ill 184 (187 NE 158; 88 ALR 1012).
The supreme court of New Jersey has interpreted •in the same manner a like statutory provision. It held:
“The phrase ‘husband of a daughter,’ in Pamph L 1909, p 326, § 1, exempting from inheritance taxation property passing to the husband of a daughter, includes within its meaning the surviving husband of a deceased daughter, even though he subsequently married.” Clay v. Edwards, 84 NJL 221 (86 A 548).
In the annotation found in 88 ALR 1016, the writer states:
“The decision of the reported case (People v. Snyder (Ill), ante, 1012), that the low rates applicable to the ‘husband of the daughter’ are intended for the widower of a daughter, although the latter predeceased the testator, harmonizes with practically all of the direct authority on this point which has been found.”
"We are aware that a contrary holding will be found in Ohio and in Maine. See Tax Commission of Ohio v. Hirsch, 31 Ohio App 325 (167 NE 400), and Canal National Bank of Portland v. Bailey, 142 Me 314 (51 A2d 482). However it should be noted that the Ohio decision is not by a court of last resort; and as to the decision by the Maine court, there is some room for noting a distinction because that decision seems to have turned upon the fact that the widower for whom the bequest was made had remarried prior to the death of the testator, and had a wife still living at the time of the testator’s death, and therefore was not the “widower” of the testator’s daughter, within the statute prescribing, rate of inheritance tax on property passing to a widower. Plaintiff in the instant case had not remarried. In any event, to the extent that the decisions just noted are inconsistent with our holding herein, we decline to follow them.
In this jurisdiction no court of last resort has passed squarely upon the controverted issue presented in the instant case. In briefs of the respective counsel 2 Michigan decisions are cited: In re Rhead’s Estate, 288 Mich 220, and In re Gay’s Estate, 310 Mich 226. Neither of these decisions is squarely in point or materially helpful in deciding the exact issue involved herein. But as an indirect sidelight, it may be noted that in the Rhead Case 'we: quoted with approval the following:
“ ‘The word widow indicates the person, not the state, and is used as synonymous with wife.’ Georgia Railroad & Banking Co. v. Garr, 57 Ga 277 (24 Am Rep 492).”
However, a reason for sustaining plaintiff’s position in the instant case which may well be considered as more persuasive than any hereinbefore mentioned arises from the following circumstance. In numerous sections of the Michigan statutes of descent and distribution (CL 1948, § 702.80 et seq.; and CL 1948, § 702.93 et seq.) the word “husband” is used in context where it must include widoiver, or be synonymous with widower, otherwise the statutes become wholly meaningless and void. We have not found in this jurisdiction a case wherein such an incongruous construction as an opposite holding would necessitate has been urged as to any of our statutes governing the descent or distribution of property, and wherein “husband” is designated but obviously meaning ividower. In the Michigan statutes of descent and distribution the word widower is rarely, if ever, used. Like comment might be made of the statutory use of the word “wife” when from the context widow is clearly intended. We conclude that as used in the context of the statute involved in the instant case the phrase, “or the husband of a daughter” includes plaintiff, who is the widower of a deceased daughter of the testatrix.
The judgment entered in the circuit court is affirmed, with costs to appellee.
Hethmers, Btjtzel, Carr, Btjshnell, and Reid, JJ., concurred with North, C. J.
PA 1899, No 188, § 2. See, also, PA 1893, No 205, § 2. This latter act was held unconstitutional in Chambe v. Judge of Probate, 100 Mich 112.
NYL 1887, ch 713, § 1. See, also, prior statute, NYL 1885, eh 483, § 1.
“If the intestate shall leave a husband or widow and no issue, •J of the estate of such intestate shall descend to such husband.” CL 1948, § 702.80, subd Second (Stat Ann 1943 Rev § 27.3178[150]). Soo, also, CL 1948, §§ 702.51; 702.52; 702.82; 702.93, par 5 (Stat Ann 1943 Rev §§ 27.3178 [121], 27.3178 [122], 27.3178 [152], 27.3178 [163]). | [
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Dethmers, J.
Deceased, employed as a truck driver by defendant, Michicago Motor Express, Inc., upon being so directed by his father-in-law, Nick Katsulos [Kitsulos?], president and sole owner, with his wife, of Michicago, took a load of produce from Benton Harbor, Michigan, to Pittsburgh, Pennsylvania, in a truck owned by Katsulos and by him leased to and operated by Michicago. At the same time, a son of Katsulos, also employed by Michicago, drove another truckload of produce to Pittsburgh with instructions from his father to get a return load, if possible. Deceased had received no specific instructions to that effect in connection with this trip, but previously had received general instructions from Katsulos to secure return loads whenever possible. Michicago had no Interstate Commerce Commission (I.C.C.) permit to operate over the routes in question, none being required for hauling produce. In Pittsburgh deceased and young Katsulos learned from a representative of defendant Craig Trucking, Inc., that they could secure return loads of bottles which Craig had engaged to transport from the ship per in Grlensliaw, Pennsylvania, to Detroit, Michigan. Deceased and yonng Katsulos picked np the bottles at Grlenshaw and returned to Pittsburgh. For the transportation of the bottles to Detroit an I.C.C. permit was required but not possessed by Michicago. Consequently, they then leased the trucks being driven by them to Craig, which held such permits, and surrendered the bills of lading received from the shipper to the Craig representative, who made out original freight bills on Craig billheads. The leased equipment agreement in favor of Craig read in part as follows:
“(1) Witnesseth: The lessee does by the execution hereof lease from the lessor, for the use in the common carriage of goods, wares and merchandise in interstate traffic, the following described tractor and trailer: * * * Which lessor hereby warrants to be in good and serviceable condition and running order, for a one-way trip from Glenshaw to Detroit * * * at and for the following considerations :
“For the complete possession, control and supervision of the equipment hereby leased and for the physical operation of said equipment (wages), on the following terms:
“70% of gross or flat rate ............$114.52
“Less advance ....................... 40.00
“Pay................................ 74.52
“Instructions :
“Includes pick up and delivery.
“Turn in log sheets with lease for payment.
“Physical examination on file with Roadway Express, Akron.
“(2) The complete possession, control and supervision of the equipment hereby leased is meant to be, and by the execution of this instrument is vested in the lessee, and it is hereby agreed that the physical operation of such equipment shall be conducted only by tbe employees of the lessee during the period of this lease.
“(3) This agreement shall be in force until the completion of trip as designated in article number (1) and settlement of manifest or manifests. By settlement of manifest or manifests is meant the complete clearing of same, by the surrender of properly receipted freight bills accepted by the consignee without exception as to loss, damage or delay, together with payment of all moneys due and/or owing lessee as designated on said freight bills and manifest or manifests. * * *
“(5) Lessor hereby agrees to maintain his equipment in good and’efficient working order, observe all safety and other requirements of the Interstate Commerce Commission and all other regulatory bodies having jurisdiction and to pay all fines due to overload, over-length, overweight, lack of permits and plates, speeding and other fines which may be assessed against him for failure to live up to rules and regulations of the Interstate Commerce Commission and other regulatory bodies having jurisdiction.”
Craig’s representative furnished deceased with an instruction sheet which contained the district and territorial boundaries of Craig, territorial instructions for telephoning, instructions to drivers to read travel orders, to check trailer numbers, permit no riders, to watch their speed, to turn in log sheets, report on accidents, and instructions as to where gasoline and oil might be charged to Craig. Craig’s representative also instructed deceased where to deliver the cargo in Detroit. While en route to Detroit deceased was accidentally killed.
Prom an award of compensation to plaintiff against Michicago and its insurer, Auto-Owners Insurance Company, the latter appeals, contending that at the time of injury deceased was in the employ of Cfiaig. They urge that under the leasing agreement deceased became an employee of Craig, that he was performing work for Craig, that Craig had the full power to control that work and the deceased in the performance thereof, and that Michicago’s control over him had ceased.
In holding deceased still an employee of Michicago, when injured, the workmen’s compensation commission pointed to the fact that the agreement did not provide that deceased was to become Craig’s employee, that there was no showing that Craig hired or paid wages to deceased or that Michicago relinquished its control over deceased to Craig or that deceased submitted himself to Craig’s control, but that, on the contrary, he continued on Michicago’s payroll; further, that. the provisions in the lease agreement that lessor was responsible for collections from the consignee and for loss, damage or delay in shipment as well as for maintenance of the truck in good condition and for operating the truck in accord with I.C.C. regulations and for payment of fines for violations by the operator, are all inconsistent with the idea that Michieago had relinquished control over the truck and particularly over the deceased; and, finally, that the lease arrangement was manifestly a sham to enable Michicago to carry the load to Detroit as its own operation under the protection of Craig’s I.C.C. permit. Craig contends that even though its representative gave deceased some specific directions for the trip Michicago did not yield its over-all direction and control over him and that, accordingly, the deceased continued to be its employee within the meaning of the workmen’s compensation act, quoting in support thereof from the ease of Rockwell v. Grand Trunk Western Railway Co., 253 Mich 144, the following:
“It is a well-settled rule of law that when one person hires or lends his servant to another for some particular work and resigns full control over him while performing that work, he ceases for the time to be the servant of the original master and becomes the servant of the party to whom he is hired or lent. In determining whose servant he was the test is, who had the right to control him. In 18 ROL, p 784, § 244, it is stated:
“ ‘But to avoid liability the original master must resign full control of the servant for the time being. It is not sufficient that the servant is partially under the control of another.’ * * *
“In W. S. Quinby Co. v. Estey, 221 Mass 56 (108 NE 908), it was said:
“ ‘The original master remains liable and the employee remains his agent, unless the authority to direct and control the servant in all the details of the transaction is surrendered to some other person, so that the business in which the servant is engaged is no longer the business of his general employer, but is in all respects the business of the person to whom he is sent.’ * * *
“ ‘If the servant remains subject to the general orders of the man who hires and pays him, he is still his servant, although specific directions may be given him by another person from time to time as to the details of the work and the manner of doing it.’ ”
We think the commission’s finding of fact that Michicago had not relinquished its control over deceased in the operation in which he was engaged when killed is amply supported by the evidence which leads to the conclusion, as a matter of law, that he was, at the time of injury, not in Craig’s employ but in that of Michicago.
Affirmed, with costs to plaintiff and Craig.
North, C. J., and Btitzel, Carr, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Martin Ch. J.:
As this case comes to us upon exceptions, and not by writ of error, we can only look into those matters which do not “appear of record.” The sufficiency of the information is, therefore, not before us.
Whether there is such an offense known to the common law, as an assault with intent carnally to know and abuse, or not, were it questionable, is immaterial; for it is very obvious that there is such an offense known to our statute. Section 5730 of Comp. Laws enacts that, “if any person shall ravish and carnally know any female of the age of .ten years or more, by force and against her will, or shall unlawfully and carnally know and abuse any female child under the age of ten years, he shall be punished,” &c. Both these offences are rape, as they come within the common law definition of that offense. The distinction between them relates solely to the character and amount of proof required to convict of the offense. Force and want of consent must be satisfactorily shown in the case of carnal knowledge of a female of the age of ten years or more, but they are conclusively presumed in the case of such knowledge of a female child under that age, and no proof will be received to repel such presumption.
The next section, §5731, which provides that “if any person shall assault any female with intent to commit the crime of rape, he shall be deemed a felonious assaulter,” &c., had direct reference to that preceding it, and was intended to embrace assaults upon females whether of the age of ten years or more, or less. When an information therefore, charges an assault with intent to commit either offense prohibited by § 5730, and in describing the intent uses the language of such section, It charges an assault with intent to commit the crime of rape. The word “rape” has no technical value which renders its use in such case imperatively necessary, and if words be employed which describe such offense, they will be taken according to their legal import. If they charge the crime in the language employed by the statute to define rape, they will be taken to charge the crime of rape; and if they charge an assault with intent to do the act denominated rape, the construction will be the same.
As actual consent of a female child under the age of ten years can not be shown upon a trial for the crime of rape, because the law will not suffer the presumption of incapacity to consent to be repelled, or even attacked, neither, in case of a charge of assault with intent to com mit such crime, can consent be shown to negative such intent, for the law will neither suffer nor consider such evidence. There can be no presumption or evidence of consent in cases in which the law declares there exists an absolute inability to consent. As there can be no such implication op evidence, so no proof of consent can be given which shall “ waive the assault,” and the rule laid down in the cases cited by the prisoner’s counsel can only apply when consent is possible.
The jury in this case found a verdict of assault and battery, and negatived the intent charged. This they had a right to do. It is a general rule of criminal law, that a jury may acquit of the principal charge, and find the prisoner guilty of. an offense of lesser grade, if contained within it. Thus, upon an indictment for murder, the jury may find a verdict of manslaughter only. So upon an indictment for an assault with intent to kill, the accused may be found guilty of an assault, or assault and battery only. TJpon a charge for a felonious assault, the lesser offense of an assault, or an assault and battery, is, under our statutes, included. See Comp. L. Chap. 192.
There was no error in the ruling or charge of the Eecorder, and judgment should be rendered upon the verdict.
The other Justices concurred.
See on this point Commonwealth v. Sugland, 4 Gray, 9. | [
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] |
Dethmers, J.
Plaintiff lost the thumb, first and second fingers of his left hand in 1919. In 1949, he sustained an accidental injury in defendant’s employ necessitating- the amputation of all but about one half inch of the third and fourth fingers of that hand. There was no injury to the palm or to any of the metacarpals. The commission allowed compensation for specific loss of a hand. Defendant appeals, contending that compensation should have been allowed only for specific loss of the last mentioned 2 fingers.
Defendant relies on Winn v. Adjustable Table Co., 193 Mich 127 (13 NCCA 612); Weaver v. Maxwell Motor Co., 186 Mich 588 (LRA1916B, 1276, Ann Cas 1917E, 238), and Collins v. Albert A. Albrecht Co., 212 Mich 147. In the last 2 cases this Court rejected the idea that injury occasioning the loss of an eye should be compensated as for total disability because of the previous loss of the other eye. In the Winn Case plaintiff had previously lost the first, second and fourth fingers, and in the accident in question the third, rendering him unable to continue at his trade as a carpenter. This Court reversed the commission award of compensation for total disability and held “The injury must be treated simply as a loss of the third finger.”
Plaintiff distinguishes this from the Weaver and Collins Cases in that there the first injury was to T member and the second to another, after which claim was made for total disability resulting from the loss of the 2 members, while here both injuries were to the same hand and claim is made only for •specific loss of that hand and not for total disability. He distinguishes the Winn Case on the ground that 'it involved claim for total disability and did not raise the question of whether, after previous loss of certain fingers leaving plaintiff with industrial use of the hand, subsequent loss of the remaining fingers can be compensated as for specific loss of' a hand when the 2 injuries combine to occasion actual industrial loss of the hand. In this connection plaintiff relies on Liimatta v. Calumet & Hecla Mining Co., 229 Mich 41; Marrs v. Ford Motor Co., 315 Mich 211; Dyer v. Abrasive Dressing & Tool Co., 315 Mich 215, and Purchase v. Grand Rapids Refrigerator Co., 194 Mich 103. These cases involve 2 injuries to the same eye. We held, in effect, that, if plaintiff’s first injury left him with better than 20% vision in the injured eye and, hence, with impaired^ but industrial vision still, then the subsequent injury must be compensated as for total loss of the eye, if it occasioned the removal or total loss of vision of that same eye even though the eye, when so lost, was an infirm one.
While Winn v. Adjustable Table Co., supra, is distinguishable on the facts in the respects indicated by plaintiff, the distinction is without legal significance. In Winn and here, after the loss of 1 or 2 fingers, the commission undertook to combine such loss with the previous loss of the other fingers and, on that basis, to award compensation for something more than the specific loss of the fingers lost in the latest injury. In the Winn Case we held this to be contrary to the statute.
In relation to the problem before us, we think the controlling distinction to be made between the mentioned cases relied upon by plaintiff, and those mentioned above as relied upon by defendant, is that in the former group the loss of the eye therein involved was not found to be the result of the 2 injuries, but due solely to the last injury, even though the eye was at that time infirm, while in the latter group the ultimate disability or loss was occasioned by the results of 2 injuries acting in conjunction. In the latter cases we held defendant liable only for the specific loss caused by injury sustained in his employ and not for the disability resulting from that and some previous injury. This case falls within the latter classification and is controlled thereby.
Reversed and remanded for entry of an award in conformity herewith. Costs to defendant.
North, C. J., and Butzel, Carr, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred.
See CL 1948, §412.10 (Stat Ann 1947 Cum Supp §17.160).— Reporter. | [
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Boyles, J.
Plaintiff sued to recover damages resulting from a collision on State trunk line highway 71 in Shiawassee county between an automobile driven by plaintiff and a trailer attached to a tractor, owned by the defendants. During a trial by jury the defendant moved for a directed verdict on the ground that the proofs showed the plaintiff guilty of contributory negligence as a matter of law. The court reserved decision on the motion and submitted the case to the jury, resulting in verdict for the plaintiff. The defendants’ subsequent motion for judgment non obstante veredicto was denied, and they now appeal from the judgment entered for the plaintiff. The only question for review is whether the plaintiff’s negligence, which the court submitted to the jury, was a question of fact, or whether plaintiff was guilty of contributory negligence as a matter of law.. Under the circumstances, plaintiff’s testimony is accepted as true.
At about 7:30 in the morning of January 4, 1949, plaintiff was driving his automobile northwesterly on State highway 71, a 2-lane paved trunk line. The defendants’, driver of the tractor-trailer outfit had started to back across the pavement into a driveway, and had stopped. The headlights of the tractor were directed south toward the direction from which plaintiff was approaching, and the trailer complete ly obstructed plaintiff’s northbound lane of the highway. Plaintiff, traveling 35 miles per hour, saw the headlights of defendants’ tractor when at a distance of about a half mile. When about 200 feet from defendants’ tractor he was completely blinded by its headlights, slowed'down to 20 miles per hour and dimmed his own headlights. Pie continued to travel at about 20 miles per hour and did not see defendants’ trailer blocking his lane until the front of his automobile was within 12 or 15 feet from it. Thereupon he applied his brakes, hit the trailer and was injured. The front of plaintiff’s car was smashed, and the hood of his automobile was driven under the trailer to within a few inches of the windshield.
Unless plaintiff’s failure to stop within the assured clear distance ahead is excused by circumstances hereinafter referred to, he was guilty of contributory negligence as a matter of law. It is well settled by many decisions of this Court that it is negligence as a matter of law for one to drive an automobile along a public highway in the dark at such speed that it cannot be stopped within the clear distance that objects can be seen ahead of it by the driver. Budnick v. Peterson, 215 Mich 678; Spencer v. Taylor, 219 Mich 110; Holsaple v. Superintendents of Poor of Menominee County, 232 Mich 603; Lett v. Summer field & Hecht, 239 Mich 699; Ruth v. Vroom, 245 Mich 88 (62 ALR 1528); Boylon v. Reliable Cartage Co., 258 Mich 5; Korstange v. Kroeze, 261 Mich 298; Russell v. Szczawinski, 268 Mich 112; Waterstradt v. Lanyon Dock Co., 304 Mich 437; Barron v. Trupski, 326 Mich 378.
Plaintiff claims that when the front of his automobile was even with the tractor’s headlights, 12 or 15 feet from the trailer, while he was still traveling about 20 miles per hour, he discovered the trailer across Ms lane of traffic and immediately applied Ms brakes. He testified that while the pavement was elsewhere and otherwise dry, “it had a film — little film or sort of moisture or mist that settled that time of morning. That had apparently frozen on the highway and caused just enough slipperiness to prevent me from stopping the car.” Relying on cases which allow an exception to the “assured clear distance ahead” rule, plaintiff claims that the film, moisture or mist on the pavement caused Mm to skid. His own testimony and that of his witnesses negatives the claim. He testified that at 20 miles per hour he could normally stop within the length of Ms automobile, 200 inches, approximately 16| feet. He admits approaching the trailer at about 20 miles per hour to within 12 or 15 feet before he saw it. According to Ms own testimony, .he could not then have avoided the collision even if conditions had been normal. His witnesses testified to skid marks, about 12 to 15 feet, and said that they “were black marks like burns * * just ordinary black skid marks from an automobile tire.”
The undisputed facts do not support plaintiff’s theory that a proximate cause of the accident was a slippery condition of the pavement rather than Ms own negligence in continuing to travel at about 20 miles per hour for nearly 200 feet after he was blinded by the tractor’s headlights, until the front of his automobile was within 12 or 15 feet of the obstruction across Ms traffic lane before he saw it. His own testimony shows that at that point he could not have stopped without hitting the trailer, even if there had been no “little film or sort of moisture or mist” on that particular part of the pavement.
The facts in the cases relied on by plaintiff to excuse his running into the trailer distinguish them. In Diederichs v. Duke, 234 Mich 136, mainly relied on by the plaintiff, the plaintiff was driving about 12 miles per hour with dimmers on. It was quite dark but she could see ahead 20 to 25 feet. She could stop her car within 10 or 12 feet. She saw an unlighted trailer ahead of her in ample time to stop and applied her brakes, but ran onto a small strip of icy pavement just behind the trailer. Otherwise, she had seen the trailer and applied her brakes in time to stop. That was not the situation in the instant case. In Stankrauff v. DeVoe, 281 Mich 660, also relied on by plaintiff, the plaintiff’s driver likewise had seen the defendant’s trailer in ample time and applied his brakes in ample time to stop and avoid collision if the road had not been unexpectedly slippery. The same situation occurred in Hautala v. Cochran, 289 Mich 409. The instant case is controlled by Angstman v. Wilson, 258 Mich 195 (31 NOCA 1), where the Court held (syllabi):
“Auto driver driving at night at rate of 20 miles per hour with dim lights, so that he could not stop within range of vision, and who crashed into unlighted standing truck, was guilty of contributory negligence as matter of law (PA 1921 [2d Ex Sess], No 3)/
“Plaintiffs were not entitled to go to jury on theory that driver was prevented from stopping because of oil or some unusual condition on pavement which had not been discernible previously, where there was no testimony to sustain said theory.
“Where, in action for damages caused to plaintiffs when their automobile crashed into unlighted truck standing on pavement in nighttime, it conclusively appears that driver of plaintiffs’ car was guilty of contributory negligence, verdict should have been directed for defendants, notwithstanding fact that their, negligence also conclusively appears.”
In the case before us, one of the proximate causes of plaintiff’s running into the trailer was his continuing to drive at about 20 miles per hour for nearly 200 feet, -with Ms headlights dimmed, when he was blinded by the tractor’s headlights, without observing the trailer across his lane until he was too close to it to stop short of an accident, regardless of whether the pavement was slippery or dry. Because of his failure to slow down so that he could have seen the trailer within his assured clear distance ahead, he was guilty of contributory negligence as a matter of law.
Reversed and remanded for entry of judgment for defendants, with costs.
North, C. J., and Dethmers, Butzel, Carr, Bushnell, Sharpe, and Reid, JJ., concurred.
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Dethmers, J.
Plaintiff held a' certificate of public convenience and necessity from defendant granting general common carrier authority to operate over certain fixed routes and between certain fixed termini and also limited common carrier rights to carry specified commodities in certain areas over irregular routes. It thereafter purchased and sought defendant’s approval of transfer to it of the operating rights of Best Way Motor Express which operated under a certificate from defendant as a limited common carrier of specified commodities over irregular routes. Defendant authorized the transfer to plaintiff by an order containing the following restrictions :
“Provided that operations under this authority shall not be combined with or tacked on to transferee’s regular route operations to effect a movement actually in excess of the 2 authorities considered separately. Operations under this irregular route authority shall be separate and distinct from regular route operations. Through or joint rates shall not be established between points on regular route and points on the irregular routes.”
Plaintiff filed a bill for review in the Ingham county circuit court praying for modification of the order by deletion therefrom of the noted restrictions. Prom decree dismissing its bill of complaint and order denying its motion for rehearing, plaintiff appeals.
Plaintiff claims the right to establish through routes and joint rates between points on its regular routes and points on Best Way’s irregular routes, to tack or combine operations under the 2 certificates, and to interchange equipment between the 2, all'without the necessity for showing or determination by defendant of public convenience and necessity in regard thereto. It contends that the restrictions in defendant’s order are unreasonable, unlawful, not in accord with commission rules and practice, and constitute a deprivation of property without due process of law.
The law applicable to motor vehicle carriers is to be found in PA 1933, No 254, as amended (CL 1948, § 475.1 et seq. [Stat Ann and Stat Ann 1951 Cum Supp §22.531 et seq.]). Article 2, §1, prohibits the operation by any common motor carrier of property for hire upon any public highway without a certificate of public convenience and necessity .from defendant. Section 2 empowers defendant to determine the question of public convenience and necessity after considering, inter alia, adequacy of existing facilities and the extent of public demand for additional service. Section 5 provides that a certificate of public convenience and necessity shall be refused if defendant shall determine that existing service is reasonably adequate; and, further, that, if a certificate be issued to a common motor carrier of property, it may be for operation over fixed routes or between fixed termini, on the basis, as the sense of the entire act and this section clearly indicates, of defendant’s determination of the public convenience and necessity in relation to such fixed routes or termini. Section 10 vests defendant with power to fix, alter, regulate and determine rates, fares, charges and classifications and to regulate operating and time schedules in order to insure adequate service and prevent unnecessary duplication of service and, finally, to supervise and regulate common motor carriers in all matters affecting the relations between them and other motor carriers. Section 11 empowers defendant to authorize common carriers to interchange equipment and to furnish through service whenever the public interest will be served thereby. Article 5, § 5, provides that no certificate or permit shall be construed to be a franchise nor to be irrevocable, nor assigned or transferred without defendant’s approval.
From the above-noted statutory provisions and a reading of the entire act the legislative intent clearly appears that the guiding and controlling principle to be applied, in the consideration of these matters, is that all motor carrier service and the manner, methods, conditions, extent, types and routes thereof, et cetera, shall be fixed and regulated by defendant on the basis of its determination of the requirements of public convenience and necessity in relation thereto. That principle must be held applicable to the rights contended for by plaintiff here, if the act is to be considered to have any application thereto whatsoever. That is the view of the appellate courts of sister States operating under statutes of like import as appears from the cases of which the following are typical: Application of Calhoun, 51 Wyo 448 (68 P2d 591); Eastridge v. Southeastern Greyhound Lines, 280 Ky 392 (133 SW2d 95); Enid Transfer & Storage Co., Inc., v. State, 201 Okla 274 (190 P2d 150); Pennsylvania R. Co. v. Public Utilities Comm. of Ohio, 116 Ohio St 80 (155 NE 694); Yonkers Railroad Co. v. Hume, 225 App Div (NY) 313 (233 NYS 63) ; Central Truck Lines v. Railroad Commission, 118 Fla 555 (160 So 26); Hazard-Hyden Bus Co. v. Black, 301 Ky 426 (192 SW2d 195); Lancaster Transportation Co. v. Pennsylvania Public Utility Comm., 169 Pa Super 284 (82 A2d 291); Railroad Comm. of Texas v. Red Arrow Freight Lines, Inc. (Tex Civ App), 96 SW2d 735; Re Western Motor Transport Co. (Calif. Railroad Comm.), PUR1922C12.
We do not see, as plaintiff suggests, that the mentioned controlling principle is overthrown or modified in the slightest degree by the direction in article 2, § 6, of the act that a carrier shall print and file with defendant and keep open to public inspection “schedules showing all rates, fares and charges for transportation of passengers and property between points on its route, and also between points on its own route and on the route of any other common motor carrier when a through route and joint rate have been established.” The quoted language does not empower the carriers to establish through routes and joint rates independent of defendant or strip it of any of its powers to fix and regulate all such particulars of and incidents to the carrier business in accord with public convenience and necessity. Furthermore, the language clearly contemplates such establishment of through routes and joint rates by and between carriers who' operate over fixed routes or between fixed termini only and not by and between a regular route carrier and an irregular route carrier. Article 2, § 11, does not, as indicated by plaintiff, give all common carriers the right to interchange equipment, but, on the contrary, empowers defendant to authorize it and the furnishing of through service whenever the public interest will be served thereby. The latter consideration is definitely a matter for defendant’s determination, not the carriers’. Plaintiff complains that no competent evidence was presented warranting imposition of the restrictions. The shoe would seem to be on the other foot. A showing of public convenience and necessity, at a hearing, on application properly noticed, in support of plaintiff’s claim of rights here involved, is a prerequisite to the granting thereof by defendant. The order complained of did not result in a deprivation of property, inasmuch as the rights denied plaintiff, but claimed by it under a combination of the 2 certificates, are rights never held nor enjoyed by the owners of the 2 certificates separately, nor did they have any lawful claim to the same. The combining and tacking of the irregular route operations under Best Way’s certificate with the regular route operations exercised under plaintiff’s original certificate, in the manner now contended for by plaintiff, would, as defendant’s order puts it, “effect a movement actually in excess of the 2 authorities considered separately,” all without the requisite application, notice to competitors, hearing thereon and determination by defendant of public convenience and necessity with regard to such excess not theretofore enjoyed by either plaintiff or by Best Way. That would run counter to the entire spirit and intent and, in many respects, to the express provisions of the motor vehicle carriers’ act.
Affirmed, with costs to defendant.
North, C. J., and Butzel, Carr, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Dethmers, J.
The life of plaintiff’s deceased husband had been insured for $2,500. The policy named her beneficiary. She paid most of the premiums. A number of years before his death he was discharged from his job because of constant and excessive use of intoxicating liquors. Habitual drunkenness ultimately led to the separation, but not divorce, of the husband and wife. He then quitclaimed his interest in their home to her and she gave him $1,000 which he applied on a house thereafter occupied by him.
Bartlett, hereinafter called defendant, an attorney, became acquainted with decedent while attempting to collect from him a past due account owing a coal company. In that connection they saw each other frequently and occasionally, on request, defendant gave decedent legal advice. Decedent informed defendant that he wished to raise some money, stated that he had separated from his family, and complained about the life insurance policy on which it was necessary for him to pay premiums but from which he would never derive personal benefit. He proposed that for a consideration he would cause defendant to be named beneficiary-. After some negotiations defendant paid decedent $500 cash, as sumed the obligation of $115 dne the coal company, and released decedent from all liability to defendant-for legal services rendered, in exchange for which-decedent executed a change of beneficiary in favor of defendant. A few months later decedent died.
Plaintiff filed a bill of complaint praying that the change of beneficiary be cancelled, that the insurance-policy be corrected to name her sole beneficiary, and-that she be decreed so to be. The trial court found-that decedent had been mentally incompetent when he executed the change of beneficiary and entered a decree granting plaintiff relief as prayed. Defendant appeals.
It would serve no worthwhile purpose to recount the testimony on both sides touching on decedent’s mental competency. Defendant and his secretary testified that decedent was sober and competent' when he executed the change of beneficiary. Others-testified that he was constantly intoxicated, .that mental and physical deterioration had set in, and that-at no time during the last few years of his life had he been competent to transact business. The trial court saw and heard the witnesses and, apparently, took into account the interest of each in the case as well as the existence of the confidential attorney and client relationship between decedent and defendant, which the court considered the latter to have violated and breached. There was ample testimony, if believed by the court, to justify a finding of mental incompetence on decedent’s part and of overreaching on defendant’s part at the time the change of beneficiary was executed. (As to voidability of contracts under such circumstances and, if set aside, equitable grounds governing rights of respective parties, see Lynder v. Schulkin, 305 Mich 451, and cases cited therein.) After examination of the entire record we cannot say that, had we been in the position of the trial court, we would have found otherwise.
Defendant urges that, if the agreement between him and decedent be held for nought, the benefit inuring to the latter thereunder should be restored to defendant, citing Gates v. Cornett, 72 Mich 420, and Moran v. Moran, 106 Mich 8 (58 Am St Rep 462). These cases lend support to defendant in this regard. See, also, Lynder v. Schulkin, supra. Plaintiff objects, however, contending that defendant made no such claim in the trial court but at all times demanded nothing other than the full $2,500 face amount of the policy and that, consequently, he may not now change theories in this Court, citing Ludwig v. Nordman, 313 Mich 31. The latter is not in point. Defendant therein urged on appeal a defense based upon a theory and claim of facts inconsistent with and directly contradictory to those advanced by him in the trial court. In the instant case defendant has not shifted to an inconsistent theory in this Court but, on the contrary, has maintained the validity of the change of beneficiary consistently in both courts, claiming on appeal, however, that, if this Court should hold to the contrary, equity requires return of the sum he paid for it. In this we concur.
A decree may enter in this Court in conformity herewith. No costs, neither party having prevailed in full.
North, C. J., and Btjtzel, Carr, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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] |
Dethmers, J.
Plaintiff seeks to restrain barricading of lot 22, assessor’s plat 97, of the city of Pontiac, and to have it decreed to be a public highway. Defendants McDonald own the - adjacent, property to the north. One Charles Green owned lot 22 and lot 23 immediately to the south thereof. In 1927 he conveyed lot 23 to defendant hospital’s predecessor in chain of title by deed which also granted to the grantee named therein the right to use for highway purposes lot 22, therein described as a 50-foot parcel which would be a continuation of a named street to another street, the grantor reserving the right to make a public highway thereof. No express dedication to the public ever occurred. In 1947 defendants McDonald acquired title to lot 22 from Green’s estate. . Testimony shows that since the 1927 conveyance to the defendant hospital and its predecessor and for 20 years or more members of the public have been travelling over what the trial court aptly described as a zigzagging course which ran over but did not occupy the entire width of lot 22 and which at one end cut over and encroached upon part of defendant hospital’s lot 23 and, further, that plaintiff city has from time to timé during that period removed snow and done some repair work thereon.
. Under the above facts plaintiff claims a common-law dedication as a public highway and acceptance thereof by the city and, with special emphasis on the provisions beneficial to the city and the public contained in CL 1948, § 221.20 (Stat Ann § 9.21), acquisition by public user. Plaintiff’s claims and arguments áre effectively answered and the law and reasoning applicable hereto ably set forth in the opinion of this Court this day handed down in Missaukee Lakes Land Company v. Missaukee County Road Commission, ante, 372.
Decree dismissing bill of complaint affirmed, with costs to defendants.
North, C. J., and Butzel, Carr, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Stone, J.
In this cause the bill of complaint was filed July 31, 1912, for specific performance of a land contract bearing date April 25, 1908, by the terms of which the defendant agreed to sell and convey to complainant three parcels of land consisting of 320 acres in Allegan county, and therein described, for $960, to be paid as follows: $100 on delivery of contract ; $400 18 months from the date thereof, and $460 30 months from date. It is undisputed that defendant’s interest in the land in question consisted of certain tax title claims, and that the notices required by law to be given to perfect title and the right to possession had not been given, at the time of entering into the contract, and that this fact was known to both parties. The contract was in the usual form in use in this State, and provided that the defendant, on receiving such payments at the time mentioned, should execute and- deliver to the complainant, or his assigns, a good and sufficient conveyance, in fee simple, of said described lands, free from all liens and incumbrances. It .gave the complainant the possession of the premises on delivery of the contract, and in case he failed to perform the contract, there was the right given to the defendant to declare the same void, and to remove complainant from the premises. The contract, however, contained the following written provision :
“This contract is given with the understanding and agreement between parties of the first and second part that, if party of the first part shall fail to procure title to the above land within one year from this date, after using every effort possible to secure same, all money paid on this contract is to be returned to second party, and this contract to become null and void.”
Only the first installment of $100 has ever been paid on the contract by complainant. No steps seem to have been taken to perfect title, by defendant, until early in the year 1910, when certain claimed statutory notices were given under defendant’s tax deeds. After this effort was made and after expiration of the time limited for payment, defendant tendered to complainant a warranty deed duly executed of the lands, and demanded payment of the amount due on the contract, or that he surrender the possession of the land, and the $100 paid was tendered in case complainant so elected. Defendant had in the meantime employed attorneys to give the requisite tax notices, and complainant had also employed counsel to look after his interest, under the contract. As early as April 5, 1911, complainant’s counsel wrote a letter to counsel for defendant, in which he stated that de fendant’s title to one 80-acre parcel was satisfactory to complainant, the same having then recently been perfected. He then proceeded specifically to point out the claimed defects in the notices given by defendant, and the service thereof, and the defects in defendant’s title which he claimed still existed. Thereupon defendant’s attorney proceeded to serve new notices, and to perfect title of defendant in the premises, to meet the objections of complainant’s attorney; and it is the claim of defendant that through and by these later proceedings the title of defendant was perfected, and that complainant should have accepted the title. Complainant refusing to accept the title again offered, and refusing to accept the $100 paid, and surrender possession, the defendant served notice of forfeiture of the contract, and commenced summary proceedings before defendant Fish, a circuit court commissioner of the county, to obtain the possession of the premises. At this stage in the history of the controversy, the bill of complaint in the instant case was filed. The bill, among other things, states that the defendant Smith has neither secured the title to said premises, nor made any effort so to do; that he is not the owner of the premises, and is not entitled to the possession thereof, and cannot convey to complainant a title in fee simple, free and clear from all liens and incumbrances. Complainant alleges that he was then, and at all times had been, ready and willing to pay the balance due on said contract upon the delivery of a merchantable title. He prays that the contract may be specifically performed and carried into execution, and that in case defendant Smith fails to secure the title to said premises, complainant be authorized to secure such title, and be authorized to deduct the costs and charges of securing such title from the balance due on the contract.
The defendant Smith answered the bill, alleging that soon after the contract was executed effort was made on his part to perfect the title as required by the terms thereof; that it had proved more of a task than he had anticipated; that after the lapse of 18 months, the title had not been perfected, and he then told the complainant that he was willing to pay back the $100 and forfeit said contract, but that complainant then told defendant to proceed under the contract, and secure the title as soon as he reasonably could, in accordance with which understanding he did proceed in the clearing of said title in the manner thereinafter stated; that the condition of the title was well known to both parties at the time the contract was executed, and the clause quoted was inserted for that reason. The answer then proceeds at great length to set out the tax title interest which defendant had in the premises, and the steps taken by him and his counsel to perfect the title thereto. He asserts that he had complied with the terms of said contract and had secured title in fee simple to said premises, free and clear of all liens and incumbrances, and had on, to wit, May 22, 1912, tendered to complainant a warranty deed, signed and duly executed by himself and wife, of said premises, and had demanded of said complainant, as the sole and only condition upon which the same would be delivered, that he, complainant, comply with the conditions of said contract, and pay the remainder of the principal due, together with interest thereon as .provided in said contract; that complainant then and there refused to accept said deed, or pay said balance due, whereupon defendant did tender to the complainant the sum of $100, being the full sum he had paid on said land contract, which was refused, and thereafter said contract was declared to be forfeited by defendant and notice of such forfeiture was duly served, and the summary proceeding begun. Defendant prays the benefit of a cross-bill, and that com plainant come to an account with him as to the amount due him on such contract; that the defendant be decreed to have complied with the terms of said contract, in that he has used every effort possible to secure the title to said premises, and that the title of defendant to said premises, subject to said contract, be decreed to be an absolute title in fee simple. In his answer to the cross-bill complainant admits that defendant had title to one 80-acre parcel of said land only. He denies that any legal notice had been or could be served upon all persons entitled to notice, after said defendant had sold said premises to complainant. Upon the hearing and in his brief and argument in this court complainant’s counsel took the position that as to one-half of the land in question the title rests in the government of the United States, and therefore that all taxes attempted to be levied, and the tax deeds issued in pursuance thereof, are absolutely void. The testimony was taken before the court, as in a suit at law, and the court found that defendant had perfected his title to said lands, and was then the owner thereof, and was in a position to perform his. part of said contract, and decreed that complainant should, within 30 days, accept a warranty deed of said premises, properly executed by the defendant and wife, and pay to the defendant the balance due as provided in said contract; that in default thereof complainant should surrender possession of said premises to the defendant upon the latter returning to him the $100 paid by complainant upon said contract. The trial court, being of opinion that complainant was compelled to file his bill of complaint, to require the defendant to perfect the title to said lands, awarded costs to complainant. Both parties have appealed, the complainant generally, and the defendant from that part of the decree awarding costs to complainant.
The complainant has by his pleadings and argument taken an anomalous and contradictory position in the case. He prays for a specific performance of the contract, yet he says that defendant cannot perform it, because he cannot give the notices required to perfect title, since he has sold the land to complainant, and he further asserts that the title to one-half of the land is in the government of the United States. If defendant is not able to perform, surely the complainant should accept the $100 paid by him and declare the contract at an end. If the court had jurisdiction to decree damages to complainant, he has not offered evidence of damages upon which a decree could be based.
Complainant’s position in the case does not appeal to a court of equity. When complaining of defects in defendant’s title, complainant was asked to go on and perfect it himself, and a court of equity would have reimbursed him for so doing, yet he refused so to do. He refuses either to accept the title offered, or to yield up possession of the premises and accept the $100 paid by him. After a careful reading of the record, we are of opinion that the trial court reached the correct conclusion in holding that the defendant had complied with his contract, by perfecting the title to the lands and is now the owner thereof, and is in position to convey a good title to complainant. Many of the objections of the complainant are purely technical and are without merit. For instance, in the chain of one of the titles, it appeared that there was a mortgage to one Bert Walters and W. J. Ostrander, bearing date July 30, 1901. It is objected that no notice was served on these mortgagees. Yet it appeared by the same chain of title that an earlier mortgage, bearing date March 25, 1889, given by the same mortgagor to another party, had been foreclosed, and a sheriff’s deed given, thus cutting off the later mortgage. There was no evidence in the case that this Walters and Ostrander mortgage was in force, or that anything was claimed for it.
It was further objected that notice should be served on complainant, because he was in possession. When service was made on complainant, in the second attempt to perfect title, then complainant objected that defendant could not give any notice at all because he had sold the land to complainant. We consider these objections purely trivial. We are of the opinion that the decree of the lower court should be affirmed. The only doubt we have had is whether the court should have awarded costs to complainant.
Upon the first taking of testimony it appeared that school district No. 1 of Pineplains township had a lease of one-half acre of the land “so long as used for school purposes,” and that one Wayne Andrews, a minor, had not been served, or brought in. These defects were later cured, but seem to have been the reason tor awarding costs to complainant. We are not disposed to disturb the decree upon the question of costs. Thirty days’ additional time should be given, from the date of decree, for performance.
The decree of the circuit court will stand affirmed, with costs of this court to defendant.
McAlvay, C. J., and Brooke, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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Brooke, J.
One William E. Frise, the insured, had been a holder of a policy for $2,000 in the complainant order for some 16 years prior to his death. At the time said policy was issued, the beneficiary named therein was his daughter, the defendant Paulina V. Frise. Some time prior to April 3, 1913, the insured fell ill. On the afternoon of that day, his condition becoming critical, he caused to be prepared and duly executed an application for a change of beneficiary. By the terms of this application the beneficiaries were changed so that the defendant Olivia Frise, the mother of the insured, was to receive $1,000; Paulina V. Frise, his daughter and former beneficiary, $950, and Adelina Frise, his wife, $50. The entire sum payable under the policy being claimed by the defendant Paulina V. Frise, that portion of the. fund payable under the new designation of beneficiaries to Olivia Frise being claimed by her, and Adelina Frise having assigned her interest under said policy to Paulina V. Frise, the complainant filed its bill of interpleader, paying the sum due under said policy into court. The contest arises over the right of Olivia Frise to that portion of the fund which she would take under the new designation.
The rules of the complainant order pertinent to the question involved follow:
“150. (1) Subject to the provisions of this section and of sections four, subsection five, and one hundred sixty, and if not repugnant to the laws of the province, • State or country in which the member has a fixed place of abode, a member may at any time while in good standing, except as hereinafter provided, change his beneficiary or beneficiaries in the following manner:
“(a) By filing with his court his application for change of beneficiary on form No. 14, fully filled in, signed by himself and properly executed, setting forth fully and clearly the changes he desires to make; provided that a designation of a beneficiary not in con formity with, section four, subsection five, shall be null and void from the beginning;
“(b) By paying to the financial secretary a fee of fifty cents for changing the record on the books of the Supreme Court and changing the policy or benefit certificate.
“(e) By surrendering to the court his policy or benefit certificate.
“(2) Whereupon the court shall cause such application, duly certified to by the chief ranger and recording secretary, with the seal of the court affixed, to be transmitted to the supreme secretary, together with the member’s policy or benefit certificate.
“(3) On receipt of the said policy or benefit certificate, together with the application for change of beneficiary, form No. 14, as in this section provided, if approved by the supreme chief ranger or by the executive council, the supreme secretary shall incorporate in the policy or benefit certificate the changes desired, subject to the provisions of section four, subsection five, and section one hundred and sixty.”
Section 4, subsection 5, is as follows:
“(5) The insurance or mortuary benefit of a member shall be paid to the member himself, or to the wife or husband of, or to the affianced wife of, or to the affianced husband of, or to the children of, or to the blood relations of, or to persons dependent upon such member, who may have been designated, as provided in the constitution and laws, by name as the beneficiary of such member, or subject to the approval of the supreme chief ranger, to such other beneficiary as may be permitted by the laws of the province, State or country in which the member resides at the time of making the designation of the beneficiary or beneficiaries.”
Defendant Paulina V. Frise in her answer and cross-bill charged that, at the time the petition for the change of beneficiary was executed by the insured, he was incompetent, by reason of his physical and mental condition, to intelligently perform any act affecting his insurance, and it was further charged that the execution of said paper was brought about by the exercise of undue influence upon the insured.
After a full hearing in the circuit court, it was there determined that the petition for change of beneficiaries was executed by the insured understandingly and without the exercise of undue influence. In this court those questions are eliminated by the stipulation of counsel; the only point to be determined being the legal effect of an undisputed act of the insured performed while mentally competent and without undue influence. It is conceded by counsel for Paulina V. Frise that the insured followed all of the requirements of the complainant order relative to a change of beneficiaries down to and including No. 2 of the rules quoted supra. Form No. 14 was used by the insured; it was properly executed; the changes required were fully and clearly set forth; and they were in conformity with section 4, subsection 5. The fee of 50 cents required by subsection B of section 1 was paid. The policy was surrendered to his local court by the insured, as required by subsection C of section 1. The proper officials of the local court duly certified to the application and affixed the seal of the court, and transmitted the same to the supreme court, together with the policy or benefit certificate of the insured as required by section 2. This was all done on the evening of the 3d day of April, 1913. The insured died early in the morning of the 4th day of April, 1913, and while his application and policy were on their way to the head office of the complainant order in Toronto, where they were received some time on the 5th of April, nearly two days after the death of the insured.
It is conceded that the supreme ranger or executive council has not acted upon the application for a change of beneficiaries as required by section 3 of the rules above quoted. The whole question involved is whether, under these circumstances, the change of beneficiaries became operative.
It is the claim of the appellant Paulina V. Frise, that the application for a change of beneficiary never became operative, for the reason that the insured died before said application reached the head office and before the supreme officers of the order had an opportunity to act upon it as required by rule 3, above cited. It is contended that the insured made the United States mail his agent for the transmission of said request for a change of beneficiary, and that his death before the same was delivered at the head office of the complainant prevented the request from becoming operative; that immediately upon the death of the insured the rights of the original beneficiaries became vested. In support of the position taken by this appellant, the following cases are cited, among others: Knights of Maccabees v. Sackett, 34 Mont. 357 (86 Pac. 423, 115 Am. St. Rep. 532); Fink v. Fink, 171 N. Y. 616 (64 N. E. 506); Daniels v. Pratt, 143 Mass. 216 (10 N. E. 166); Gordon v. Gordon, 117 Ill. App. 91.
On behalf of the defendant Olivia Frise it is contended, on the other hand, that, the insured having followed- the rules of the complainant order in making his request for a change of beneficiaries, and having done everything required by said order to entitle him to the benefit of said change, a court of equity will regard that done which should have been done and give effect to his act. The exact point has never been determined in this court. A leading case, however (Supreme Conclave, Royal Adelphia v. Cappella [C. C.], 41 Fed. 1), determined by the late Mr. Justice Brown while judge of the circuit court of the United States for the eastern district of Michigan, discusses the question at large. It is there said:
“The general rule that the insured is bound to make such change of beneficiary in the manner pointed out by the policy and by-laws of the association is subject to three exceptions. * * * (3) If the insured has pursued the course pointed out by the laws of the association, and has done all in his power to change the beneficiary, but, before the new certificate is actually issued, he dies, a court of equity will decree that to be done which ought to be done, and act as though the certificate had been issued”—citing National Association v. Kirgin, 28 Mo. App. 80; Mayer v. Association, 49 Hun (N. Y.), 336 (2 N. Y. Supp. 79); Supreme Lodge v. Nairn, 60 Mich. 44 (26 N. W. 826); Kepler v. Supreme Lodge, 45 Hun (N. Y.), 274.
In the case of Supreme Lodge, Knights of Honor v. Nairn, 60 Mich. 44 (26 N. W. 826), a designation changing the beneficiary in an insurance policy was held to be ineffective; the insured in that case having left the policy, with the new designation, in a sealed envelope, to be opened only after his death. It was, however, there said:
“It is possible — and we need not consider under what circumstances — that when a member has executed and delivered to the reporter his attested surrender, in favor of a competent beneficiary, his death, before a new certificate is rendered, may leave his power of designation so far executed as to enable a court of equity to relieve against the accident. But in the present case the facts show conclusively that Traver did not mean to have any surrender made until after his death. Nairn was not authorized to open the envelope or handle any of the papers while Traver lived, and Traver retained complete control of them. No one was authorized, while he lived, to take any steps to complete a surrender.”
The facts in the case at bar show conclusively that it was the desire of the insured to have the change of beneficiary become operative at once and during his lifetime, and that he did everything required Of him by the rules of the complainant order to bring about that result.
In the case of Grand Lodge A. O. U. W. v. Child, 70 Mich. 163 (38 N. W. 1), it is said:
“He [the insured] undertook and did all that he could, and all that he was required in equity to do, to change the donee in the certificate named to that of his son. The rules of the order allowed him to do this, and it was not in the discretion of the order to prevent it. It was a right, under the rules of the order, of which he could not be deprived, upon his complying with the conditions prescribed for such action, and which he performed so far as it was in his power to perform; and for these reasons it would be most unjust and inequitable for a court to disregard such action and such intention of the deceased before he died, and award his property to the claimant, who had forfeited all claim to his bounty, and whom he had discarded. * * * Mr. Child did all he could do in making the change, and it should have been allowed and done by the order.
“Equity will consider that done which ought to have been done. For the purpose of determining the rights between these defendants, the proceeding is governed by equitable principles.”
Where the member has done all that he is required to do, and only formal ministerial acts on the part of the society remain to be done in order to complete the change, and the member dies before performance thereof, a court of equity will protect the rights of the intended beneficiary. See cases cited 29 Cyc. p. 134, note 65. See, also, Ancient Order of Gleaners v. Bury, 165 Mich. 1 (130 N. W. 191, 34 L. R. A. [N. S.] 277).
In the instant case it is apparent that, had the insured lived, the supreme officials of the complainant order could not have refused to change the beneficiary in his policy as requested by him; he having complied with all the legal requirements of the order, and the beneficiaries named by him belonging to a class not prohibited.
Albert H. Frise, administrator of the estate of Olivia Frise, deceased, appeals from so much of the decree rendered below as provides that no costs will be awarded to or against either of the defendants. It is appellant’s contention that Olivia Frise should have been awarded costs against defendant Paulina V. Frise in the circuit court. We are disposed to the view that the learned circuit judge properly determined that question in his court. In this court, however, cross-appellant Albert H. Frise, administrator, will recover costs against the defendant Paulina V. Frise.
The decree of the circuit court will stand affirmed.
McAlvay, C. J., and Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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Kuhn, J.
The complainant on October 8, 1906, then 68 years of age, married the defendant, who was 89 years of age. She had been twice previously married, both of which marriages resulted in divorces being granted. As a result of the first marriage the defendant had three children, and after a short acquaintance with complainant, who was a bachelor, their marriage took place. At that time the complainant owned a farm of 207 acres, with the usual stock and farm personalty thereon, incumbered, however, by a $1,500 mortgage. Their domestic happiness did not last for any considerable length of time, as trouble began almost immediately, and resulted in the present bill of complaint being filed December 19, 1912, charging the defendant with various acts of extreme cruelty. The defendant filed an answer in the nature of a cross-bill, making counter charges of extreme cruelty. Upon a hearing of the case, the ‘court granted a decree to the complainant and dismissed the cross-bill, and awarded the defendant $1,500 as permanent alimony, and her costs, including the solicitor’s fee of $125, also various articles of furniture and other personal property.
The complainant in support of his charges produced 17 witnesses who lived in the immediate vicinity of the home of the parties, and the charges made by the defendant against the complainant were of a very serious nature, and if the witnesses who testified in support thereof had been believed by the court she would have been entitled to relief. Both of the parties to the controversy testified, and there was a sharp conflict as to their relations during the time they lived together. It would profit no one to set forth their various claims. The circuit judge, who saw and heard the witnesses, was in a better position to determine who told the truth than we are, and clearly he must not have believed the claims of the defendant and her witnesses.
After a careful review of this record, we are not inclined to disturb the judgment of the court below. It appears that the mortgage on the farm, which at the time of the marriage was $1,500, has been increased to $2,300, and the complainant claimed that his other debts exceeded the sum of $1,000. The farm is of the value of $12,000. It thus appears that the defendant has not assisted the complainant in accumulating any of his property, and in view of this fact, and also that the defendant is still a comparatively young woman, and the court found her at fault for their domestic difficulties, we are also of the opinion that the judgment of the court below upon the question of alimony should not be disturbed.
The decree is affirmed, without costs.
McAlvay, C. J., and Brooke, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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] |
KUHN, J.
(after stating the facts). As a preliminary question it is contended that, the plaintiffs being copartners doing business as the Turnbull Elevator Company, there had not been a sufficient compliance with Act No. 101, Public Acts of 1907 (2 How. Stat. [2d Ed.] § 2626 et seq.), so as to permit plaintiffs to maintain this suit. Irrespective of whether there was in this case a sufficient compliance with the statute, we are of the opinion that the defendant is not in a position to urge this defense, as there was no notice to that effect given with the plea. This defense is clearly an affirmative defense, and unless pleaded it must be considered that it was waived. Circuit Court Rule 1(b) provides:
“An affirmative defense, such as payment, release, satisfaction, discharge, license, fraud, or failure of consideration in whole or in part, and any defense which by other affirmative matter seeks to avoid the legal effect of or defeat the cause of action set forth in plaintiff’s declaration, must be plainly set forth in a notice added to the defendant’s plea. The signature of the defendant’s attorney following such a notice shall be a sufficient signing of both the plea and the notice.”
This defense is affirmative matter upon which defendant relies “to defeat the cause of action set forth in plaintiff’s declaration.” It is true that in Cashin v. Pliter, 168 Mich. 386 (134 N. W. 482, Ann. Cas. 1913C, 697), under the plea of the general issue, this court passed on the merits of the question, but an examination of the records and briefs in that case shows that it was not brought to the attention of this court, and the question of whether it was necessary to specially plead this defense under Rule 7, supra, was not decided. It has been held in other jurisdictions that the defense that the plaintiffs are doing business under an assumed name without having complied with a statute such as Act No. 101 is an affirmative defense and is waived unless pleaded in the answer. Carlock v. Cagnacci, 88 Cal. 600 (26 Pac. 597); California Savings & Loan Society v. Harris, 111 Cal. 133 (43 Pac. 525); Vaughan v. Kujath, 44 Mont. 484 (120 Pac. 1121); Reilly v. Hatheway, 46 Mont. 1 (125 Pac. 417); Bowman v. Harrison, 59 Wash. 56 (109 Pac. 192); Hale v. Transfer Co., 66 Wash. 459 (119 Pac. 837).
The other question which is before us is whether or not there was a misdelivery of this consignment of beans by the carrier in view of the shipping instructions of the consignor, as shown by their bill of lading. It is contended by the defendant and appellant that this question is .governed by the decision of this court in the case of Nelson Grain Co. v. Railroad Co., 174 Mich. 80 (140 N. W. 486). In that case a shipper consigned beans to his own order, notify X, under a bill of lading with a surrender provision. Later, by means of a spurious bill of lading, he ordered the carrier to deliver, to X, which the carrier did without requiring the surrender of the genuine bill of lading. The court said:
"Having made delivery of the shipments to the parties named in the bills of . lading upon the order of Botsford and Barrett as directed in the bills, we think the defendant should be held to have performed its full duty in the premises.”
In other words, the consignor-consignee, who had control of the goods and.upon whose order they were to be delivered, ordered a delivery to X. The consignor-consignee thus waived his right and his protection under the surrender provision, and is estopped from asserting it against the carrier, which made the delivery as ordered.
I do not think it can be said that the stipulation in the bill of lading that the surrender thereof shall be required before delivery is solely for the benefit of the carrier, and we did not so hold in the Nelson Grain Co. Case, as it was there said:
"Whether the stipulation in the bill of lading that surrender thereof shall be- required before delivery is considered to be for the benefit of the carrier or the shipper would seem in this case to make no difference, for the plaintiff was not the shipper.”
It is manifestly for the benefit and protection of both shipper and carrier. But, while it affords a benefit to the carrier, the carrier certainly need not insist upon it when it would be fully protected in a delivery without a surrender.
In the Nelson Grain Co. Case, Mr. Justice Brooke, in his opinion, also says:
“The bills of lading here considered are entirely unambiguous, and show conclusively that Botsford and Barrett were the shippers, and that the shipments were made to their order.”
And again:
“An examination of that paper (the bill of lading) shows that the plaintiff was an utter stranger to the transaction, except that as to the last bill its name appears beneath that of Botsford and Barrett, shipper, with the prefix ‘per.’ This can have but one meaning, viz., that the beans were shipped by Bots-ford and Barrett; the plaintiff acting for them in the transaction.”
In the instant case the plaintiff is the consignor, and not a stranger to the transaction, and gave no order for the delivery of the beans, and so it cannot be said that the surrender provision in the contract of shipment, the bill of lading, was waived. Here the shipper placed his property in possession of the carrier, which gave him a bill of lading, making a contract'between them which in most positive terms says that its surrender shall be required before the delivery of the property, and upon this agreement the shipper had a right to rely.
It is true that prima facie the consignee is the owner of the goods shipped, but it is equally true, and the rule is well established, that, when there is an order bill of lading outstanding, the carrier delivering the goods without requiring the presentation of the bill does so at its peril, and is liable to a bona fide holder thereof, This is sustained by the following decisions: McEwen v. Railroad Co., 83 Ind. 368 (5 Am. Rep. 216); The Thames, 7 Blatchf. 226, Fed. Cas. No. 13,859; First Nat. Bank of Clarkston v. Navigation Co., 25 Idaho, 58 (136 Pac. 798); Merchants’ Nat. Bank v. Steamboat Co., 102 Md. 573 (63 Atl. 108); Canandaigua Nat. Bank v. Railway Co., 155 App. Div. (N. Y.) 53 (139 N. Y. Supp. 561); Barnum Grain Co. v. Railway Co., 102 Minn. 147 (112 N. W. 1030, 1049).
Because of this conclusion, we consider it unnecessary to discuss the question of the liability of the carrier under the provisions of the uniform bills of lading act, Act No. 165, Public Acts of 1911.
The judgment is affirmed.
McAlvay, C. J., and Brooke, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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Steere, J.
This is an application for a writ of mandamus to compel the vacation by respondent of a preliminary injunction issued in a suit now pending in the Wayne county circuit court in chancery, entitled Parker Estate Co., Limited, Complainant, v. B. Siegel Co., Defendant, brought for the purpose of permanently restraining relator by injunction from cutting certain proposed openings through the southerly wall of the so-called “Parker Block,” located on lot 40, section 8, of the governor and judges’ plan of the city of Detroit, at the southwest corner of State street and Woodward avenue in said city.
The premises in question are owned by the Parker Estate Company, and relator is its tenant. As such tenant it has for several years conducted in the six-story building thereon a growing retail business of selling ladies’, misses’, and children’s outer garments and furs. It at first occupied under a ten-year lease given to one Joseph L. Hudson and by him assigned to relator, which lease by its terms expired August 1, 1914. On February 15, 1909, said Parker Estate Company executed a lease directly to relator, demising said premises for a term of ten years from and after August 1, 1914, at an increased rental, amounting to $35,000 per annum, payable in monthly installments. Because of its increasing business, relator found the Parker building inadequate, and, to meet the needs of its growth, leased for a term of ten years a six-story building adjacent on the south, known as the “Blackwell Building.”
The Parker and Blackwell buildings, both six stories in height, are brick structures built to the line between the lots on which they stand, each having its own independent wall, the two, against each other, forming a solid double wall 100 feet deep and six stories high between the two buildings. For the convenient use of these two buildings together in the conduct of its business, relator planned and proposed to open through this double wall archways on each floor 7½ feet high by 6½ feet wide, protecting the same by rolling steel shutters designed in accordance with requirements of the National Board of Underwriters, claiming authority to make such openings under the terms of its leases. Irrespective of what is provided for in the Blackwell lease, the Parker Estate Company insisted that this could not be done without its permission, which was refused, and obtained the preliminary injunction, as before stated.
A motion by relator for dissolution of said injunction, heard upon bill and answer, with supporting and opposing affidavits, was denied upon the ground “only” that the proposed openings constituted a change in the exterior of the building which, under the terms of the lease, could not be made without consent of the lessor.
The rights of the respective parties to this demise, in the particular giving rise to this litigation, are contingent on the significance of two provisions in the lease touching the exterior of said building, the-material parts of which are as follows:
In paragraph 7 it is provided, amongst other things, that:
“The lessee shall keep the premises and every part thereof in good repair, including all necessary repairs to the roof and floors of said building, including the renewal or renewals of such- floors, whenever same may become necessary, and including the painting of the exterior of said building, whenever the same may become necessary, in order to keep said building in clean and sightly condition, and’ at the end of said term,” etc.
Paragraph 8 provides:
“It is mutually agreed that said lessee may, at his own expense, at any time during said term, make any change in said building not impairing the structural safety thereof, providing, however, that any change in the exterior of the building shall be subject to the approval of the lessor, and provided, further, that all additions and improvements of a permanent character made by said lessee in and to said building shall become the property of the lessor,” etc.
Relator contends that the proposed openings are not a change in the exterior of the building; that the wall in question is not an exterior wall, according to the purport of the language as used in the lease and as intended by the contracting parties; that in paragraph 7 the word “exterior,” as applied to this building, related to and designated only the outside, visible, or exposed parts which the lessee was to paint, keep clean, and in sightly condition; that having been thus limited, and once used in the instrument with such meaning, the term must be presumptively held to have been used in the same sense in the succeeding paragraph; that, even if, as contended by lessor, the consent reservation in paragraph 8 could by any possibility be construed as applying to the concealed south wall, its scope is limited to structural strength and safety and gives no absolute right, when structural safety is fully protected, to arbitrarily and without reason prohibit the proposed openings.
For the lessor it is urged that “exterior of the building,” as used in paragraph 8, necessarily means and includes all four walls, whether exposed to view or not, being a plain and wise provisión clearly intended to protect the safety of the structure by authorizing the owner to decide upon proposed changes of the inclosing walls and to prohibit any alteration of-the same without its consent.
The chancellor who heard the motion to dissolve this injunction held that the wall in question was an exterior wall of the Parker building, which the lease by distinct provision prohibited the lessee from in any way changing without consent of the lessor, which had been refused, and therefore it was an imperative duty of the chancery court, irrespective of any equities involved or the merits of the lessor’s refusal, to grant said preliminary injunction and, at least pending proceedings prior to a final hearing, decline to favorably consider any application for its dissolution.
If, as contended, the right to this injunction turned on whether the wall between the adjoining buildings is an “exterior wall,” we are impressed that complainant’s bill was well founded and is sustained by the undisputed facts. In construing an instrument, the words used are to be applied and confined to the subject-matter with which it deals. In this lease the Parker property only is mentioned, described, and demised. No reference is made to the Blackwell building, or any other adjacent structure which might temporarily or permanently conceal or obscure any part of the building leased. The “exterior of said building” mentioned in paragraphs 7 and 8 of the lease relates to the Parker building itself, treated independently and not in connection with the Blackwell building. So regarded, it is difficult to conceive of a six-story, quadrilateral building, or block, with but three exterior sides, or walls. It is to be observed that the paragraphs in question make no mention of walls in this connection; the only provision in regard to walls being that the lessee shall remove hanging ice or icicles from the “roof, cornice, or walls” to prevent accidents to pedestrians. By inference and to carry their arguments, counsel have, however, interpreted “exterior of said (or the) building” as synonymous with “exterior walls.” Upon the character of the south wall of the Parker building, adjoining the Blackwell, the contending parties each cite one decision, touching exterior walls, and our subsequent research has failed to supplement them.
In behalf of relator reference is made to Ittner v. Music Hall Ass’n, 97 Mo. 561 (11 S. W. 58), which involves an interpretation of the architect’s specifica tions in a building contract. These required all exterior walls to be faced with selected red brick, more expensive than those used generally. To use the red brick at the place in dispute, which were certain exposed parts at the top of the building, would have involved an additional cost of over $4,000, and the contractor contended the specifications did not require it. The court said in part:
“We do not find that the walls in question are anywhere specifically mentioned as exterior walls.. Where they are specifically mentioned, as in the above quotation, they are called inner walls. That they are such up to the corridor roof is conceded by defendant. * * * And it is unreasonable to say, in the light of other portions of the specifications, that he (the architect) included these walls not exposed to view and forming open areas on top of the building. * * * We think the fair construction of the specifications, taken as a whole, is that they were not to be thus faced.”
The'substance of this decision is that the portion of two admittedly interior walls extending above the corridor roof of the building, not exposed to view from below and forming areas on the roof, were not required to be faced with selected dark red brick, as exterior walls, in the light of the elaborate specifications taken as a whole.
More closely in point, counsel for the lessor cite Green v. Eales, 114 Eng. Rep. 88, involving a lease wherein the lessor agreed to repair and keep in good condition the “external parts” of a dwelling house, except the glass and lead of the windows. The demised building stood adjoining another, which was removed during the term of the lease, and it became necessary to repair the wall of the rented dwelling thus exposed. The lessor refused to make the repairs, claiming that the subsequently exposed wall was not an external part, within the terms of the lease. The court, in deciding the case, said:
“We are of opinion that it was. We think that it was so even before the Swan was pulled down, but certainly afterwards. The external parts of premises are those which form the inclosure of them, and beyond which no part of them extends; and it is immaterial whether those parts are exposed to the atmosphere, or rest upon and adjoin some other building which forms no part of the premises let.”
The exterior of a building is of, if not coextensive with, its external parts. By analogy, under paragraph 7 of the lease in this case it would be the duty of relator to paint the exterior of the south wall'of the Parker building, to keep it clean and sightly, in event of the Blackwell building, being torn down and said wall exposed.
We are unable to follow relator’s contention that the sense in which the words “exterior of said building” are used in paragraph 7 of the lease makes clear and controls the meaning of those words in paragraph 8. In one, the subject under consideration, and to which the words relate, is the sightly appearance of the visible outer surface; in the other, the structural safety of the building, without reference to its appearance. “Exterior” is not a word of defined technical meaning in law, and the lexical definitions are of scant assistance. Beyond the adjective impression of something outside, external,.or outward, it has a definite meaning only as associated words may disclose.
We conclude that the associated words in paragraph 8 fairly disclose an intent to reserve to the lessor a right to be consulted when any material changes are proposed in those outer, external, or exterior parts of the building, where may lie its chief structural strength, and to withhold permission.in case its structural safety is, or reasonably may be, jeopardized by such changes, to the ultimate injury of the property demised; but read in connection with other provisions of the contract, and viewed in the light of the subject-matter, the relations of the parties, and the attending circumstances as disclosed, we cannot find that a reasonable construction of said paragraph confers upon the lessor any absolute right or arbitrary power to forbid such changes as could not affect or imperil its safety or value being made anywhere in said building. The paragraph was evidently framed with the thought and for the express purpose of authorizing relator to make such reasonable changes within the bounds of safety as the nature and development of its business might render advantageous or desirable.' It first authorized in distinct terms and without qualification any desired change in the building which did not impair its structural safety; and then, with the apparently suggested .afterthought that the chief structural strength of a building is commonly understood to be in its outer parts, or walls, the matter was further safeguarded by a supplemental provision making changes in the exterior subject to the lessor’s approval, thus anticipating that changes in the exterior might be desired, and contemplating that they would be made when approved and, by inference, would be approved when safe. This supplemental provision appears on its face to have been inserted for the benefit of the lessor, presumptively in language of its own choosing, and therefore may be construed most strongly against it.
Between two constructions, each probable or possible, one making a contract reasonable and fair, as applied to the subject-matter, and the other unjust and unreasonable, the former is to be preferred.
Even if by strict construction it could possibly be said that the lessor-has the arbitrary right, without reason and by ipse dixit, to absolutely prohibit any changes in the exterior of the building, its only grounds for equitable relief by injunction are irreparable ' injury by reason of the damage done to the freehold through changes in the building impairing its structural safety. For anything claimed beyond that, the lessor may fairly be relegated to its remedy in an action at law. The summary remedy by injunction is 'only granted on strictly equitable grounds. This is recognized by the lessor in its injunction bill. As complainant, the grounds upon which it asks relief are that the proposed changes will weaken the building, increase the fire risk and rate of insurance, and, in case of fire, cause loss of rent, thus jeopardizing its freehold and threatening complainant with irreparable loss.
In its answer defendant flatly denies complainant’s allegations that the safety of the building will be impaired or the insurance rate raised, and alleges, amongst other things, that it proposes to make the openings under plans and specifications to be prepared by engineers and architects of high standing, which it is willing to submit to the complainant; that it stands ready to adopt any suggestions or other methods not wholly unreasonable, is prepared to pay the expenses of any engineer or architect whom complainant may wish to consult in reference to said proposed work; that, denying any increased hazards, defendant is able and willing to assume any it is claimed there may be, has offered, and in said answer repeats the offer, to execute a bond, with satisfactory surety in such amount as complainant can reasonably exact, against all damage, also providing that at the expiration of the lease said wall will be restored to its original condition wholly at the expense of said defendant; that it will pay any increased insurance premiums, and observe any and all reasonable conditions which may be required or imposed by the court; that, when it stated to complainant its intention to do this work (the business relations between the parties up to then having been harmonious), complainant’s attitude was in substance:
“(1) Its insurance premiums might be increased, whereupon the defendant offered to pay the increase.
“ (2) This reason having been taken away from complainant, it advanced the further reason that, on account of the terms of the lease, the fire danger might be increased, and thereupon the chances of the suspension of rent be increased. The defendant promptly stated that this feature of the lease would be altered, and that the defendant would pay rent under those circumstances.
“(3) And thereupon the complainant gave a last and final reason * * * that, if the defendant would pay a large amount of money during the term of the lease Exhibit B (in excess of $100,000), it would give its consent.”
As to these offers and proposals, it is well said the court can make no new contract for the parties, its powers being limited to construing the contract as made by them; but, under a contract entitling complainant to have submitted to it for approval proposed changes, such offers and proposals made to complainant in that connection may be considered by a court of chancery in passing upon the equities of a suit for a permanent injunction to protect it from alleged impending irreparable injury to its freehold.
Changes increasing the fire risk are, we think, in practical construction reasonably within the prohibitory provisions of paragraph 8. The bill avers and the answer denies that the proposed changes will increase the fire risk and insurance premiums. Upon the motion to dissolve this injunction, conflicting affidavits of architects deposing as experts were presented by the respective parties to sustain their contentions. Upon this record, taken most favorably for relator, we are inclined to the view that material issues of fact arise which should first be determined on final hearing of the suit in the circuit court in chancery.
This court, as a rule, does not review by mandamus discretionary action of a trial court in granting a preliminary injunction and refusing to dissolve the same; but where the authority to issue turns solely upon a question of law, and the return shows no material questions of fact involved, the propriety of the writ will be considered. Ionia, etc., Ins. Co. v. Ionia Circuit Judge, 100 Mich. 606 (59 N. W. 250, 32 L. R. A. 481); Titus v. Chippewa Circuit Judge, 168 Mich. 507 (134 N. W. 487). While in this case we have considered'some of the questions of law involved in passing upon the contention that they are conclusive, we are unable to hold that this return with the accompanying exhibits shows only questions of law in dispute, and therefore are constrained to conclude from the record before us that the dissolution of said injunction before final hearing of the suit is a discretionary matter with the court of original jurisdiction.
The writ is denied.
Stone, Ostrander, Bird, and Moore, JJ., concurred with Steere, J.
Brooke, J. A consideration of the entire contract convinces me that in the section in question the parties had in contemplation only the three walls of the building exposed to the outer air. The injunction should be dissolved, and the bill dismissed.
McAlvay, C. J., and Kuhn, J., concurred with Brooke, J. . | [
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Martin Ch. J.:
Wales files this bill to obtain from the defendant an account of the property of the late Cornelia Newbould, which came into his hands during her life, and of the avails of such as has been sold by him, and for payment of such moneys as have been received therefor, and a delivery of such of the property as remains in the defendant’s hands. In doing this, he sets forth the several relations in which he stands to the estate of the late Cornelia Nowbould, alleging that he is administrator of such estate, administrator of that of Knapp, from and through which a large portion of the property was acquired, and her heir at law and distributee, and as such entitled to any residuum left after administration. For this description of the characters in which he claims and may claim title to the subjects of this litigation, and that of his relation to Mrs. Newbould’s estate, the bill is charged to be multifarious.
I shall not attempt to define multifariousness, for the failure of every court to do so hitherto shows its impossibility. The question, to a great extent, depends upon the facts of each particular case, and the nature of the relief prayed for by the bill. But in any event, to hold a bill multifarious, the court must be able to see that disconnected and independent causes of action are brought upon the record, requiring different and independent decrees, or that the defendant is brought upon a record with a portion of which he has no connection, or in which the different complainants, if there be more than one, have no common interest. It sometimes, therefore, means misjoinder of causes of action, and sometimes misjoinder of parties. See Daniell's Ch. Pr. 384, 385; Story's Eq. Pl. §§271, 530 and note 6. In the present case there is a misjoinder of neither. The complainant is actually the only party entitled, in any capacity, to litigate the questions involved against the defendant, and the subject matter is the right of the defendant to the property claimed by the complainant to have belonged to Mrs. Newbould, but which the defendant claims in his own right. The manner in which, and the source from which she acquired such property, although necessary subjects of inquiry to determine these conflicting- 'claims, do not raise any conflicting issues respecting her •title, for that is the common source of the claim of both parties. The title to her property centres in either the complainant or the defendant. If in the defendant, the bill will be dismissed; if in the complainant, the defendant must be •content to surrender the property in his hands, and account for and pay to the complainant the proceeds of such as has been sold; and in its ultimate use and appropriation by the complainant he can have no interest, unless as a creditor ■of her estate. Now, although distinct matters, in different rights, — as unconnected demands against different estates — can not be united in a bill without rendering it multifarious, yet distinct matters in the same right may be joined. And so, several parties may join in a bill where there is a common interest in the subject of controversy. Indeed a primary rule of pleading in equity, is, that all persons should be made parties who are interested in the subject matter, or whose rights may be affected by the decree ; and although this rule has been somewhat relaxed by modern decisions, so that the absence of some of those who might have been joined as parties, will not necessarily require a dismissal of the bill, yet their being parties can be no fatal objection to it in any case. If such be the rule, it is difficult to And any valid reason for holding that, where the same subject matter is claimed by a single individual, in distinct but consistent and dependent rights, or where several interests are united in him, he may not maintain a bill in his own name, setting forth such rights and interests as grounds of his claim, and descriptive of his interests, and the characters in which such claim is made. And it is far more difficult, upon any equitable or rational ground, to find any reason why he should be required to select, out of several valid titles, one upon which he will found his claim to relief, when in fact he may be entitled to it upon all, or when each independent title is but a link in the chain upon which his whole title and; his several rights depend. Equity recog nizes and enforces no inflexible technical rules of pleading' which will operate to deprive a party of his rights, or compel a multiplicity of suits to attain a single object, ox' to settle conflicting claims respecting the same property.
But in the case at bar, the complainant claims, primarily, as the administrator of Mrs. Newbould’s estate. It is true that in the introduction to his bill he does not describe himself as such, but in the body he clearly avers such charactei-, and claims relief in it. I conceive this to be sufficient to authorize the court to afford him relief as such administratoi-. He also — and it is because of his various interests that he has framed the bill as we find it — avers that he is the administrator de bonis non of the Knapp estate; and that he is such, for the purpose of settling Mrs. Newbould’s estate, the settlement of the latter depending in some degree upon the settlement of the former. But he alleges this as subordinate to his character as administrator of Mrs. Newbould, and claims nothing as administratoi' of Knapp, except in aid of his administration of the estate of Mrs. Newbould, as a very large, if not the major, portion of the property of the latter estate was derived from the former, and the settlement of the one depends upon that of the other. The complainant also alleges that he is the heir at .law and distributee of Mrs. Newbould, but he makes no claim and asks no decree to himself as such. This, therefore is mere descriptio personas, and in no manner affects the issue. But, were it otherwise, the joinder of the heir or distributee as co - complainant would not, I think, be a fatal objection, even were he a distinct person from the administrator; and I can conceive of no substantial reason why the allegation by a complainant of his several actual and prospective rights and claims, all being connected and dependent, should bar a decree based upon an actual right, fully set forth, and upon which relief is really prayed. So far as the defendant is concerned, if he be found to have no right to the property, it is of no concern to him that the complainant has several connected claims, and the litigation is no more complicated when several rights and claims center in one person, than when held by many. In Rhodes v. Warburton, 6 Sim. 617, where legatees of a testator and the executor joined in a bill for a debt due the testator, the bill was held not demurable for such join•der. See also Lewis v. Edmund, Id. 251.
In Cassells v. Vernon, 5 Mason, 333, a claim to money as administrator and in the complainant’s individual right was held to be inconsistent, as the admissions of the one necessarily superceded the other, and this upon the ground that distinct and independent titles can not be set up in the same bill. But, admitting this to be good law, it by no means follows that distinct, but dependent or connected titles, may not be set up by a complainant, or that he may not set out all his claims without danger of the dismissal of his bill.
In that case the right of action was not derived from a single source, but was asserted upon independent grounds; while in the present case, all the complainant’s rights flow from one source, although his duties under them may be different. But it is his right, and not his duty, which is now in question; and as he and the defendant each claim from a common source, there can be no sound reason shown why the complainant should be driven to institute several suits to settle his respective claims to a single subject, when the rights of the parties must be substantially determined by the same evidence in each case, and upon the same general principles of law. Here the complainant has, to use the language of Judge Story in Scott v. Calvert, “a common interest” in the whole subject of the bill, and none of the •objections applicable to multifariousriess apply.
Now, as already remarked, the claim of the complainant as administrator de bonis non of Knapp’s estate is not independent of that as administrator of Mrs. Newbould’s -estate. It is rather concurrent with it; the settlement of the latter being to some extent dependent iqion that of the former; for, as is admitted by the defendant’s counsel, the title to the property acquired from that es'.ate upon the compromise of the litigation concerning it, is or may be-still subject to all rights of Knapp’s administrator, and these are centered in this complainant. Now regarding the (defend-. ant, according to the theory of the bill, as having acquired the title to such property as the trustee of his wife, and as having disposed of it as such trustee, or, according to-his own theory, as having acquired it by gift from her-through such settlement, he can not question the right of Knapp’s administrator over the property, if the necessity for its appropriation to the satisfaction of claims against, the estate is established, nor over the proceed» if it has been sold; while if he holds it only as trustee, he should account to the administrator, and can have no interest in its final disposition under the order of the Probate Court, where-these estates must be finally settled. Nor, if he has converted this property into money, can he resist the claim to-such money, if the administrat or chooses to suffer the title-to remain quiet in the bona fide purchasers, and pursue the proceeds of the sale. But in the present case, as the amount of Mrs. Newbould’s interest which the complainant claims is. dependent upon the settlement of the Knapp estate, he may call for an account of such proceeds as the defendant lias realized from the sale of property acquired from it, however acquired. Nor can he insist that such interest of Mrs. Newbould was personalty, for he received it as realty,, and must account for it as such. How it may be regarded for the purpose of administration is no concern of Ms, for he has no interest in the question. As the estate of Mrs. Newbould, and the rights of the complainant through it, are dependent, so far as the eighteen lots or the proceeds of their sale are concerned, upon the settlement of the Knapp estate, and the questions of right and amount are thus blended, the complainant’s character as adminis trator of the Knapp estate, is in no way conflicting with that of administrate, and distributee of Mrs. Newbould; and the averment that he has, or may have, rights in the former capacity, will not be fatal to his recovery in any other consistent and legitimate capacity. Consistent and dependent rights and titles may always be set up and relied upon by a complainant, when the bill does not require an adjustment of such rights, but a decree only which shall place the complainant in a position to settle them in another form. Were we exercising the power of a probate court, and this claim against the defendant made before us as such, the ease might be different, for our duties would be different. But the defendant can not, beyond the question of misjoinder of interests, litigate this question, as ’he derives his title to those lots from the heirs of that estate, through Mrs. Newbould’s interest therein, and his claim is based upon her right. He can not be permitted to question his own title and still insist upon it; and therefore we may start in this suit where he starts in his answer, with the deed claimed by him to be the gift of his wife, which was executed by Hunt and his wife in the process of partitioning the property, in pursuance of a decree of the St. Clair Circuit Court. This was a compromise and settlement of all conflicting claims among the heirs, and the defendant and his wife, by the obligation given to Hunt and his wife at the time of this settlement, virtually bound these lots and their proceeds to answer the demands of any future administrator who might be appointed upon such estate; for they undertook to indemnify Hunt and his wife from all liability for such conveyance to any future administrator. As between himself and his wife, were she living, the defendant could raise no question, except as to the nature of his title; and as to the claims of this complainant representing her estate, he has no greater rights. What may be the linal disposal of the property, what estates may be settled with it, and how settled, are questions in which he has no concern, if he be found to have no rights in it; and as all interests adverse to him are before the court, the satisfaction of any decree against him will fully protect him from any future liability to any one. See Story’s Eq. Pl. § 279b; Blease v. Burgh, 2 Beav. 221.
Aside from this property, which was derived through the Knapp estate, and its avails, and' the note for $926, which the defendant claims to have been given to him by his wife, there is other property which it is conceded the defendant is liable to account for to her administrator; and, as we think, to this complainant under this bill. The questions of fact to be considered are, therefore, Avhether the defendant acquired the Port Huron property, the note for $926, and the other moneys mentioned in his ansAVer, by gift from his Avife.
As to the note and money there is no evidence to sIioav such gift, nor any evidence whatever respecting his right to hold them; and the presumptions are strong against any gift. A daughter would hardly bestoAV a note executed by her father upon any one, not even her husband, as a gift unless for some strong reason. The defendant has alleged the gift, but he has not proven it, or shown any reason to render it probable. As to the real estate, the defendant claims that the title was taken in his name with his wife’s knoAvledge and consent, and Avith her intention that it should be conveyed to him as her gift. There is no evidence upon this point except the deed itself, the testimony of E. A. Wales, and of Davidson. The deed of itself j>roves nothing; as the law could presume from the facts surrounding the acquisition of the title, and the relations of husband and Avife existing at the time, that he acquired the title for her, and would regard him as her trustee, not by contract, but by force of the transaction and such relation. The testimony of Wales, so far as it shows any thing, sIioavs that the settlement and partition were made for her, and although he was her brother and attorney, he appears not to have known that she ever entertained the design of gratuitously conferring this property upon the defendant. He was not present at the execution and exchange of the deeds, but, had such a design existed, from their relations it is exceedingly improbable that she should not have imparted a knowledge of it to him. The testimony of Davidson is so indistinct as to time, so improbable and immaterial, that I am compelled to exclude it from consideration altogether. He resides at Albany, and was only transiently here, and yet, if we believe his testimony, we must belieAre that he possessed her confidence in a degree superior to that of her own brother, if not of her husband; and that she concealed from all but him her benevolent purpose of bestowing this property upon the defendant.
If she had entertained any such design, it is utterly improbable, if not impossible, that the same should have been concealed from her attorneys, or that the person who received instructions to draw the deeds, and the witnesses, or some of them, should not have known of such intention ; and the fact that none of them were called to testify in this case, tends far more strongly to prove that she entertained no such design, than the testimony of Davidson does to establish it. It is not probable that she was present in the attorney’s office while the deeds were being drawn. She naturally confided all the details to her husband, and her acquiescence in the conveyance proves no gift, for she had never had the title to give. If she gave directions for the deed to be made to her hirsband, this should have been and could have been proven; and the burthen is east upon the defendant to show it and her purpose. All the facts and circumstances show this, and only this; that the defendant was her husband, adviser and agent in this settlement, and that she left the whole matter to his direction, and if she had subsequently ascertained, or even if she at the time knew that the deed ran to him, her affection for, and confidence in him would have allayed any suspicions that he acquired the title for himself, or any doubts of the propriety of his proceeding. She might have thought that the title should properly run to him, as her husband, but it would be a monstrous and unnatural inference from these facts alone, to find that she was bestowing this property upon him as a gift. She is not shown to have been present when the deed was drawn, nor to have given any instructions respecting it; no act was done by her which manifested an' intention to give, or which could operate to give. She has granted nothing, and nothing appears which will justify the presumption required by the defendant, and none can be made against her interests; but the proof should be clear and conclusive.
But the claim that the note for $920, executed by her own father to her, was also given to the defendant, which is part and parcel of this general claim, is so unreasonable that it also throws doubt over this of the gift of the real estate. However much she might have confided in her husband, or however great might be her generosity, it is hardly probable, and indeed scarcely possible, that she should have bestowed upon him this demand against her father. Before we can find a gift to have been made by the wife to the husband, we must have evidence of a different character from that before us.
The question of her right to give her real estate to her husband does not arise in this case, as the fact of a gift is not proven. •
It is not necessary for the complainant to prove fraud on the part of the defendant to sustain this bill. He does not charge direct fraud, but that the title of Newbould was acquired without the knowledge and consent of his wife, and in fraud of her rights. This relates to the title, and not to his acts, and the facts of the case without other proof are sufficient to sustain the charge. The averment is of a";legal conclusion, and the rule contended for by the defendant’s counsel does not apply in this case. The defendant having alleged a gift, the burthen was cast upon him to show it; the possession of the title, under circumstances like these before us, not warranting any inference of it, or presumption against the wife’s interest.
The bill prays that the note of $926 may be decreed to be given up to the complainant, as also the personal property, and that the suit pending in the Wayne Circuit Court be enjoined. So far as the personal property is concerned, as the defendant asserts no title to or interest in it, he should be decreed to surrender it: as to the note for $926, a decree must be entered, that the injunction against its prosecution be made perpetual, and that it be surrendered to the complainant; but as to the note for $1056, we can make no decree. The defendant is at liberty to prosecute that to judgment, and in other respects a decree should be entered according to the prayer of the bill, except so far as relates to the disposal of the property in course of administration, which is left to the order and direction of the proper Probate Courts. As we do not find the title to the real estate to have been acquired by actual fraud, and hold the defendant to have been the trustee of the title, in taking the account of the proceeds of such real estate and other trust moneys in his hands, the defendant must be allowed for all taxes paid by him upon the trust property, and for all necessary expenses incurred and necessary disbursements made by him, in the due and proper management of the trust property, and for all moneys paid out, and expenses necessarily incurred by him in the St. Clair chancery suit, and the compromise thereof. He must also be allowed (should he claim it) a reasonable compensation for his, time and services as the agent of his wife, about the said chancery suit, and the compromise thereof, down to the time when the deed of the Port Huron property to him was executed, but not after; such accounts to be taken, before a Commissioner, on reference, and ¡massed upon as in other cases, and the case must be remitted to the court below for the execution of this decree, and for farther proceedings. | [
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] |
Manning J.:
The only question in this case is the liability of the city.
It was said on the arg-ument that the contractors, and not the city, are liable, as the sewer was being constructed by them under a contract with the city when the accident occurred.
When, the relation of j^'incipal and agent, or master and servant exists, the rule of respondeat superior is applicable, but not when the relation is that of contractor only. In all ordinary transactions the relation of contractor excludes that of principal and agent, or master and seyvant. But there is not necessarily such a repugnance between them that they can not exist together. The difference between them is, that a contractor acts in his own right and for himself, whereas an agent or servant acts for and in the name of another.
In the case before us, both relations exist, and must necessarily exist from the peculiar character and circumstances of the case. The contractors not only acted for themselves, but at the same time as agents-for the city, under the power given it to construct sewers in its streets, which are public highways. They had no right to make the excavation they did, except as agents for the city; and had they been proceeded against by indictment for creating a public nuisance, they could not have justified in their own right, but would have had to justify as agents of the city under their contract.
It is also to be observed that the power under which they acted, and which made that lawful which would otherwise have been unlawful, was not a power given to the city for governmental purposes, or a public municipal duty imposed on the • city, as to keep its streets in repair, or the like, but a special legislative grant to the city for private purposes. The sewers of the city, like its works for supplying the city with water, are the private property of the city — they belong to the city. The corporation and its corporators, the citizens, are alone interested in them — the outside public or people of the State at largo have no interest in them, as they have in the streets of the city, which are public highways.
The donee of such a power, whether the. donee be an individual or a corporation, takes it with the understand ing — for such are tlie requirements of the law in the execution of the power — that it shall be so executed as not unnecessarily to interfere with the rights of the public, and that all needful and proper measures will be taken, in the execution of it, to guard against accidents to persons lawfully using the. highway at the time. He is individually hound for the performance of these obligations; he can not accept the power divested of them, or rid himself of their performance by executing it through a third person, as his agent. He may stipulate with the contractor for their performance, as was done by the city in the present case, but he can not thereby relieve himself of his personal liability, or compel an injured party to look to his agent instead of himself for damages.
It was also said on the argument, that the city was required by its charter to let the contract to the lowest bidder. I agree with counsel in this construction of the charter, when the work is done by contract, and the contract price exceeds $200, as it does in this case. But I do not see in it any intention of the Legislature to make the contractor only liable, and to relieve the city, which is benefited by the power, of its liability. The object of this provision in the charter is to protect the city against frauds too frequently concocted between faithless public functionaries and contractors, by which the public is sometimes made to pay much move for a thing than it is worth.
In Lesher v. The Wabash Navigation Company, 14 Ill. 85, the company v/as authorized by its charter to enter upon certain premises, and take therefrom material for the construction of its works by making compensation therefor. The company contracted with certain individuals to build a dam, the contractors agreeing to furnish the material,' which was taken by them from the land of the plaintiff, who claimed compensation of the company, and the court held the company liable, on the ground that the contrae tors were the servants of the company. Catón J., in delivering the opinion of the court, says: “The contractors were none the less the servants of the company, because they were doing the work by contract, and for a stipulated price. The work was still done by the company, and under the authority of the charter. The privileges which the charter conferred upon the company to enable them to do the work, devolved upon the contractors for the same purpose. The very erection of the dam across the river was an obstruction to its navigation, and would have boon unlawful, but for the authority conferred by the charter. Ilad the Culberstons been prosecuted for damages occasioned by reason of such obstruction, they would immediately have sought protection under the charter.” * * * “Had a cause of action accrued to an individual by reason of the obstruction erected in the river, the company whose work it was would have been liable as much as if they had erected it with their own hands.”
In Bailey v. The Mayor, &c., of the City of New York, 3 Hill, 531, the action was for damages done the plaintiff by the breaking of a dam erected across the Croton River, to supply the city of New York with water. The defense was, that the action could not be maintained upon the principle of respondeat superior; 1st. because the water commissioners, who had charge of the construction of the woi’k, were appointed by the State and not by defendants; and, 2d, if they were to be regarded as having been appointed by defendants, that defendants, in building the dam, were acting in a public capacity, and like other public agents, were not responsible for the misconduct of those necessarily employed by them. Roth points were ruled against defendants. Nelson Ch. <T., in delivering the opinion of the court says: “The powers conferred by the several acts of the Legislature, authorizing the execution of this great work, are not, strictly and legally speaking, confer red for the benefit of the public. The grant is a special, private, franchise, made as -well for the private emolument and advantage of the city, as for the public good. The State, in its sovereign character, has no interest in it. It owns no part of the work. -The whole investment under the law, and the revenue and profits to be derived therefrom, are a part of the private property of the city, as much so as the land and houses belonging to it situate within its corporate limits.”
This decision was afterwards affirmed in the Court of Errors, the Chancellor holding the defendants liable as the owners of the land on which the dam was erected, and other members of the court on the ground ^stated by Ch, J. Nelson in his opinion.
In Storrs v. The City of Utica, 17 N. Y. Reports, 104, which is a case of a sewer constructed in a public street under a contract with the city, and is in all respects analagous to the one before üs, the city was held liable. The liability of the city is put on the ground of its duty to keep its streets in repair, and a like duty was urged on the argument as the ground of liability in the present case. While I concur in the correctness of the conclusions to which the Court came in that case, I am unable to see how the execution of the power given to the city to construct sewers, is, of itself, an infringement of .its duty to keep its streets in repair. The duty and power must be so construed as to be consistent with each other, and not repugnant the one to the other.
In Lowell v. Boston and Lowell Railroad, 23 Pick. 24, defendant was held liable for an injury to an individual by falling into a deep cut made in a highway, in the construction of the company’s road by a contractor.
This case is commented on and approved by the same court in Hilliard v. Richardson, 3 Gray, 349. Thomas J,, after stating the facts in the case, says (p. 353) “Now it is plain that it is the corporation that are entrusted by the Legislature with the execution of these public works, and that they are bound, in the construction of them, to protect the public against danger. It is equally plain that they can not escape this responsibility by a delegation of this power to others.’’
In Reedie v. The London and North Western Railway Co., 4 Exch. 244; Barry v. The City of St. Louis, 17 Mo. 121, and perhaps some other cases, the corporation was held not to be liable. The distinction does not appear to have been taken, in these cases, between ordinary contractors who, doing only what it is lawful for any one to do, act in their own right, and contractors under a special legislative power given for private purposes, rendering that lawful, in the donee of the power and those acting under him, which, would otherwise be unlawful. The judgment of the court below I think should be affirmed.
Martin Ch. J. and Christiancy J. concurred. | [
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Campbell J.:
The first question which arises is, how far are we at liberty to look into the proceedings returned by the Recorder’s Court, to ascertain whether the Recorder erred in any respect within our supervisory control.
It is claimed on behalf of the People that, upon a certiorari at common law, the only thing to be determined is whether the court below had jurisdiction; and that if jurisdiction existed, the discretionary power of the court can not be inquired into. And it is further claimed that the jurisdiction depends upon the subject matter of the complaint. Applying this rule to the case before us, it is insisted that the Recorder’s Court has jurisdiction of all complaints for obstructing alleys, and that this jurisdiction being called into exercise by such a complaint, its proceedings thenceforth are not examinable unless an unauthorized judgment is given beyond the one allowed by law. As the same immunity from review applies to all special tribunals not acting according to the course of the common law, it becomes very important to ascertain how far this doctrine is correct; for if true it certainly gives them an extent of authority over persons and property not possessed by any of the higher courts.
There are certain classes of questions whi'ch, by the common understanding from time immemorial, belong to the course of judicial inquiry under the laws of the land. The common law, and the various charters and bills of rights, recognized and assured the right to such an inquiry. And the Constitution of this State, in apportioning the judicial power, as well as in affirming the immunity of life liberty and property, has always been understood to guarantee to each citizen the right to have his title to property and other legal privileges determined by the general tribunals of the State. These municipal courts, so far as they act under city by-laws, are not designed to decide between man and man, or to administer general laws. They are ordained to prevent disorder in matters of local convenience, and to regulate the use of public and quasi public easements so as to prevent confusion. If in exercising this power, they can incidentally decide upon the rights of private property so as to determine its enjoyment without review, there would seem to be a practical annihilation of the right to resort to the general tribunals and the common law. The consequences of such a doctrine, whether correct or incorrect, are serious enough to render it our duty to examine very carefully into its foundations.
The power of reviewing upon certiorari judicial pro ■ceedings of inferior tribunals and bodies not according to the course of the common law, has long been exercised in England, as well as in this country. The power has been jealously maintained, and has been deemed necessary to prevent oppression. It must be apparent to any one that if the superior court could only examine into the right of the inferior one to enter upon an inquiry, without reference to the manner in which that inquiry is conducted, this remedy would be of small account.
In New York, a series of decisions have appeared from time to time, asserting that when certiorari is given by statute, it lies to correct any legal mistakes; blit where issued as at common law, it can only review the jurisdiction of the court below. It is unnecessary to refer particularly to these authorities, inasmuch as in Morewood v. Hollister, 2 Seld. 309, this distinction seems to be regarded as unfounded, and the office of the writ is considered as reaching all errors of law. We have examined with much care all the English authorities within reach, bearing upon this subject, and have found nothing whatever to give color to such a distinction. There are indeed cases where a certiorari lies to examine errors generally, and others where it lies only to inquire into the jurisdiction; but the distinction arises out of very different considerations. This will appear by reference to some of the cases in which questions of jurisdiction have been reviewed.
There are many statutes in England which, not only in large classes of summary convictions, but also in special proceedings for condemning lands, and for other purposes, take away, in express terms or by acknowledged implication, the right to a certiorari, which otherwise existed. In some cases an appeal lies to review the whole proceeding; in others, it is subject to no further examination on the merits. In all these cases it is held, that a statute taking away the right to a certiorari does not deprive the aggrieved party of the right to sue out such a writ where the pro eeeding has been without jurisdiction. And the want of jurisdiction, when arising from matters not appearing in any way on the proceedings, may even be shown aliimde by the affidavits: — Regina v. Manchester & Leeds Railway Co., 8 Ad. & El. 413; Regina v. Sheffield Railway Co., 11 Ad. & El. 194; Rex v. Justices of Somersetshire, 5 B. & C. 816; Rex v. Justices of Kent, 10 B. & C. 477; Rex v. Justices of Middlesex, 5 Ad. & El. 626; Ex parte Carruthers, 2 Man. & Ry. 397; Regina v. South Wales Railway Co., 13 Q. B. 988; Ex parte Hopwood, 15 Q. B. 121; Ex parte Hyde, 5 Eng. L. & Eq. 368; Regina v. Justices of St. Albans, 18 Eng. L. & Eq. 244; Regina v. Justices of Staffordshire, 30 Eng. L. & Eq. 402; In Re Edmondson, 24 Eng. L. & Eq. 169; Regina v. Leeds & Bradford Railway Co. 11 Eng. L. & Eq. 484.
If certiorari will lie for want of jurisdiction in cases where the common law remedy of certiorari, in its usual acceptation, is expressly or confessedly taken away, it follows as an unavoidable conclusion that the usual office of the common law writ is to inquire into something more than jurisdiction. This may be made more plain by examining what is required to be returned.
It was held in Rex v. Killett, 4 Burr. 2063, that it is necessary to set out the evidence upon a conviction, that the court may judge whether the justices have done right. And in Rex v. Read, 2 Doug. 486, it was held that a conviction is bad unless it does set forth the evidence. The same doctrine is laid down in Rex v. Clarke, 8 T. R. 220; Rex v. Smith, 8 T. R. 588; Regina v. Tuck, 10 Q. B. 540. And where the evidence set out is not sufficient to justify a conviction, or other judicial act copiplained of, it will be quashed on certiorari: — Rex v. Smith, 8 T. R. 588; Rex v. Dove, 3 B. & Ald. 596; Rex v. Taylor, 2 Chit. R. 578; Rex v. Hall, Cowp. 728; Rex v. Daman, 2 B. & Ald. 378; Rex v. Davis, 6 T. R. 177; Rex v. Inhabitants of Great Wishford, 4 Ad. & El. 216; Rex v. Inhabitants of Woolpit, 4 Ad. & El. 205; Regina v. Inhabitants of High Beckington, 3 Q. B. 790.
The office of a certiorari is not however to review questions of fact, hut questions of law. And in examining into the evidence the appellate court does so not to determine whether the probabilities preponderate one way or the other, but simply to determine whether the evidence is such that it will justify the finding as a legitimate inference from the facts proved, whether that inference would or would not have been drawn by the appellate tribunal. It is said in The King v. Daman, 2 B. & Ald. 378, that “ all the facts necessary to subject the party to the penalty imposed by the act of Parliament must appear upon the information, and be established by proof.” And in The King v. Davis, 6 T. R. 177, it is said “it is sufficient in convictions if there were such evidence before the magistrates as in an action wotcld be sufficient to be left to a jury" The same principles are recognized in the other cases above cited. Also in Rex v. Glossop, 4 B. & Ald. 616; Regina v. Bolton, 1 Q. B. 67.
Wbere facts exist which, if apparent, would have ousted the jurisdiction, they have been allowed to be set forth in the affidavits of the relator, and a response required. Instances of this occur where the magistrate acting was disqualified by interest or other similar cause: — Regina v. Bolton, 1 Q. B. 67; Regina v. Cheltenham Com'rs, 1 Q. B. 467; Regina v. Justices of Hertfordshire, 6 Q. B. 753. And in Regina v. Gillyard, 12 Q. B. 527, a conviction was quashed, although perfectly regular, because it was made to appear that it was obtained fraudulently.
The same principles which require a conviction to be quashed when upon the facts and the law applicable to them the case is insufficient to justify it, would seem to require that rulings of law upon the admission or exclusion of evidence should be reviewed. And such we find to have been the practice. In the ease of Regina v. Chel tenham Com’rs, 1 Q. B. 467, the rate complained of was quashed because certain interested magistrates voted upon the admission of evidence, the court holding this a decision which might have had an important influence upon' the result, and therefore suflicient to avoid the whole action, whether the interested magistrates took any further part or not. And. in this case the statute had expressly taken away the writ of certiorari; and it was issued and the case decided, on the ground that the question from its bearing became one of jurisdiction. An in Regina v. Justices of Hertfordshire, 6 Q. B. 754, the proceedings were quashed because an interested magistrate had sat during a portion of them, although he withdrew before they were completed. The questions of law arising either upon the admission of evidence, or the other rulings in the proceedings, must always have a bearing on the result, and the appellate court can not, generally, at least, assume that any of them have not contributed to it. In Regina v. Justices of Staffordshire, 30 Eng. L. & Eq. 402, where certiorari was expressly taken away by statute, a writ was allowed, and a conviction under a local by-law quashed because the justices had ruled that an approval of the by-law by the 'Secretary of State made it binding, and therefore refused to consider its validity. The court of Q. B. held the by-law invalid, and so quashed the conviction.
We are therefore of opinion, that the return to the certiorari is all properly before us, and that the law contemplates that it shall be full, both upon the evidence and upon the decisions and rulings.
Whether the information is sufficiently full to be sustainable, we do not propose to consider, as in our view the proceedings in the Recorder’s Court are entirely unau-' thorized. The charter not providing any remedy upon the obstruction of an alley, no offense exists, and therefore no complaint can be made,, until a by-law is adopted, coming within the powers given by the charter. In the case before us, it appears, without any conflict of testimony, that the alleged alley in controversy was never actually opened and used as such at all. It also appears that portions of it have been occupied under claim of freehold ' title under conveyances, and that the erections upon it now complained of were upon it when the by-law in question was passed. Without basing our decision merely upon the ex post facto character of this by-law, we are of opinion that until an alley has become actually open to the uses for which it is designed, the occupation or obstruction of it can not properly be punished under city by - laws. In giving power to regulate the use of these passages, and remove obstructions from them, the charter contemplates the preservation of actual and not theoretical easements, and the protection of the community against actual nuisances which interfere with the accustomed use of the p>assag’es- This is the species of offense set forth in the information, which alleges the interruption of an accustomed passage. Until the premises have been brought into actual enjoyment, so that their obstruction interferes with an existing user, there would be no propriety in permitting the municipal authorities to legislate upon it; and we do not -regard the charter as intending it. Questions of title may possibly come up incidentally without objection in many summary proceedings. We give no opinion upon this abstract question, But where it appears on the face of the prosecution that the question of title is not incidental, but is the main point in issue, we think the case falls beyond the jurisdiction of the municipal tribunal, and the rights of the parties must be settled in the public courts, where ample remedies exist for all parties aggrieved.
We think the conviction wrong, for these reasons, and it must be quashed.
Ohristiancy J. concurred.
Martin Ch. J. concurred in the result. | [
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Martin Ch. J.:
Upon two grounds the bill was properly dismissed in the court below; First, that of estoppel of the complainants from disputing the title of Finkler, after the assertion by Ferris to Alden, through whom Finkler derived title, that he had no claim upon the land in question; and Second, by lapse of time.
Brown, the assignee of Ring, had attempted to foreclose the prior mortgage by proceedings under the statute, and the complainants had made a like attempt upon their subsequent mortgage. Whether these proceedings were regular or irregular it is unnecessary for us to determine; as these complainants purchased, under their attempted foreclosure, subject to the prior mortgage. Alden, when about to purchase the property of Baxter, who had pur' chased from Brown, inquired of Ferris whether he had any claims upon it, and was told that he had not. This nquiry was evidently made in view of the second mortgage, and the attempted foreclosure; and the answer bound both complainants, as Alden was, as we must presume, induced to purchase by such answer. Whether the answer was made in view of the mortgage or the foreclosure and whether or not the foreclosure was presumed to be valid, equity will hold complainants to the consequences of the disavowal, in behalf of a bona fide purchaser encouraged by it to purchase, and of those acquiring title through him. Even if Ferris disavowed having any interest under a mistake of law, the purchaser should not suffer; for his money was paid and the title acquired, in part at least, by reason of the disavowal.
But were we disinclined to hold It an absolute estoppel, yet most certainly, when considered in connection with the fact that twenty years have elapsed since the right to redeem Accrued to these complainants, and that new rights and interests in the property have sprung up, this will afford a complete bar to the complainants’ claim to equitable relief. Even had not twenty years elapsed, the court would withhold relief; for the debt was long since barred, and the security can only be enforced after depriving a bona fide purchaser of his property. Even were this a bill by a mortgagor to redeem, he could not be aided; much less should a subsequent incumbrancer who has no equities— not even a demand which he can enforce.
The decree must be affirmed, with costs.
The other Justices concurred. | [
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Boyles, J.
Plaintiffs filed a bill of complaint in the circuit court for Oakland county in chancery to compel specific performance of an option to purchase certain land in the city of Berkley. Issue was joined and the case submitted to the trial court on stipulated facts and issues of law. The court, after a written opinion, entered decree for the plaintiffs and the defendants appeal.
On November 24,1947, the then-owners of the land in question entered into a written lease of said land to the plaintiffs at a rental of $175 per month, for a term of 5 years, with privilege of renewal for a like term, in which lease the parties agreed as follows :
“It is further agreed between the parties hereto that the parties of the second part (plaintiffs herein) shall have an option to purchase said premises within 1 year from the date first above mentioned, for the purchase price of $25,000i And it is further agreed that if parties of the second part shall exercise their option to purchase the parties of the first part shall furnish to them an abstract of title or a title policy to said premises. The down payment is hereby fixed at of the purchase price, and the balance to be paid in monthly instalments of 1% of the balance due and owing, with interest at 6% per annum.”
Said lease, after 2 further covenants concerning the assignment of lease and keeping the premises in repair, continued:
“And the said parties of the first part do covenant that the said parties of the second part, on paying the aforesaid instalments and performing all of the covenants aforesaid, shall and may peacefully and quietly have, hold and enjoy the said demised premises for the term aforesaid.”
Shortly after the execution and delivery of the above instrument the then owners (lessors) sold and conveyed said land to the defendants herein, subject to the said lease and to the rights of the plaintiffs thereunder. On October 30, 1948, plaintiffs, by their attorney, notified defendants Shapiro of their desire to exercise their option to purchase and requested the defendants to furnish the abstract of title or a title policy to said premises. On November 11, 1948, while said option was still in effect, plaintiffs’ attorney again wrote the defendants Shapiro as follows:
“On October 30,1948, as per your request, I wrote you and made formal demand for the abstract of title to the property at 3223, 3225 and 3229 West Twelve Mile Road, Berkley, Michigan, in response you called me and informed me that I would have to talk to your attorney, Mr. Samuel Shapero. He has stated, in effect, that the option given my client's in the lease to said premises, would not be honored.
“In order that there may be no question about our intention to insist upon specific performance of that option, letters are being sent to you and your wife and to Mr. Irving Zeff and Mrs. Pearl Zeff, his wife. I have been employed by Philip Rosenthal and Philip Weiner to notify yon that they elect to exercise their option, in accordance with the terms thereof, and to make demand upon you for delivery to me, as their attorney, of the abstract of title to said property.
“In event that you persist in your refusal to carry out the terms of the option, suit for specific performance will be instituted without further notice.”
The instant suit was begun, and after it had been submitted, as aforesaid, the trial court entered a decree that the option was valid, that plaintiffs were entitled to specific performance, that the plaintiffs had properly exercised their option to purchase, that the' defendants be required to furnish an abstract of title or a title policy, that the relationship of landlord and tenant terminated October 30, 1948, when plaintiffs had exercised their option to purchase; and the decree directed the defendants to execute a land contract conforming to the terms and provisions of said' option. The provision in the decree terminating the relationship of landlord and tenant at the time when plaintiffs exercised the option October 30, 1948, is the principal hone of contention in the present case.
The defendants claim that the right of the plaintiffs to possession of the premises ended when the option was exercised, and that the right of possession thereafter was with the sellers (the defendants) under the option until full payment of all of the instalments had been made in full by the plaintiffs. Their claim on the appeal is stated by the defendants in their brief as follows:
“Where a written option to purchase title to property on an instalment basis fails to stipulate that possession of such property shall he delivered to the purchaser while the title is paid for on the instal ment basis, such possession is reserved to the owners of the property until the full payment of the purchase price.”
Under that claim, the plaintiffs would pay $166.67 per month, the 1% per month, of the balance of the purchase price, instead of $175 per month rent, and if the lease was terminated October 30, 1948, as the defendants now claim, said defendants having the right of possession of the property could oust the plaintiffs as of October 30, 1948, and lease the property to some other tenant, unless the plaintiffs came to their terms as to the future right to possession, or payment of rents.
Defendants rely on a line of decisions in this Court holding that the vendors or owners of the property continue to be entitled to possession of the property until paid in full, in the absence of any provision in the contract giving the vendees or optionees the right of possession during payments. With the exception of Polczynski v. Nowicki, 227 Mich 415, and Emmons v. State Land Office Board, 305 Mich 406, in none of the cases relied upon by defendants was the vendee or optionee in possession of the optioned premises at the time the option was exercised. We agree with the defendants that under the option, standing alone, the optionees (plaintiffs) would not be entitled to possession of the property. Druse v. Wheeler, 22 Mich 439; Gault v. Stormont, 51 Mich 636; Brin v. Michalski, 188 Mich 400; Walsh v. Oakman, 199 Mich 688; Barton v. Molin, 219 Mich 347; Janiszewski v. Shank, 230 Mich 189; Emmons v. State Land Office Board, supra.
However, the trial court was in error in holding that the relationship of landlord and tenant was terminated when plaintiffs exercised their option, and that the lease itself ended at that time. Under the express terms of the lease, of which the option was a part, plaintiffs’ right to possession, under the circumstances of this case, continued under the lease and did not revert to the defendants merely because the plaintiffs exercised their rights under the option. The lease did not terminate October 30, 1948, when plaintiffs exercised their option to purchase.
In the Polczynsld Case, supra, as in the instant case, the plaintiff-lessee filed a bill for specific performance of an option clause in a 6-year lease in which the plaintiff was the lessee and optionee. The defendant, the landlord and owner, refused to sell. The main issues in the case were (1) whether the option clause was complete, (2) whether the plaintiff had made a proper tender, and (3) whether the defendant had understood she was signing an option instead of a lease. The Court resolved those issues in favor of the plaintiff and then turned to the 4th and final question, which arose out of the fact that the option itself, as in the case at bar, contained no provision for possession by the optionee. The plaintiff was in possession of the premises as lessee under a lease, at the time he made the tender and sought to exercise the option. The plaintiff claimed that his obligation to pay rent ceased when he gave the notice of his desire to exercise the option. In holding that the lease was not‘thus terminated, the Court said (p 429):
“The two further contentions are made for defendant that the option is incomplete because no interest on deferred payments is specified, and no provision for delivery of possession, in which case this Court has held that the purchaser is not entitled to possession until the full purchase price is paid. This Court has also held that failure to specify interest does not invalidate the contract. Elbom v. Pavsner, 225-Mich 213. Plaintiff was in possession when he made tender on February 1, 1921, and has so continued without paying rent since that time, apparently on the theory that the tender changed the character of his possession as a tenant to that of purchaser. His contract does not so provide and it is a well-settled rule that if not otherwise provided in the agreement the right to possession of a contract purchaser does not become operative until full payment of the purchase price. Gault v. Stormont, 51 Mich 636; Way v. Root, 174 Mich 418; Brin v. Michalski, 188 Mich 400; Barton v. Molin, 219 Mich 347. Though in default for past due rent defendant has not dispossessed him nor forfeited his lease, and he is entitled upon payment of rent in arrears to continue his tenancy under the lease. Her claim that the lease is at an end because of plaintiff’s attitude in this litigation is not tenable. He is entitled to a land contract from her according to the terms of the option.”
While we agree with defendants that under the option clause the defendants would have the right to possession of the property until the payments are made in full, we do hot reach the conclusion that the option clause is the only contract before the court. The Polczynslci Case is not authority for so holding. The option is a clause of the lease, and the contract must be considered in that light. Nor do we agree with defendants that their right to possession, under the option clause, would be a ground for denying plaintiffs the right of specific performance of the option. It should be noted that in the Polczynslci Case, as well as in Brin v. Michalski, supra, also relied upon by defendants, specific performance of the option was decreed.
Defendants claim that: “Under the option as written, plaintiff is not entitled to possession until full payment of the purchase price.” (Italics supplied.)
That claim seeks to by-pass and ignore the express provisions of the lease itself, of which instrument the option clause is a part. The lease and the option clause' constitute ■ the contract, and it must be con sidered in its entirety with every valid part given effect. As hereinbefore noted, said contract expressly provides that: “The said parties of the first part do covenant that the said parties of the second part (plaintiffs herein)-, on paying the aforesaid instalments and performing all of the covenants aforesaid, shall and may peacefully and quietly have, hold and enjoy the said demised premises for the term aforesaid” (Italics supplied.)
The trial court held that the lease was terminated when the right to exercise the option was exercised by the plaintiffs. On the contrary, the lease and the option clause when read together plainly express the intent of the parties, that under the contract plaintiffs should continue to be in possession of the premises under the lease “on paying the aforesaid instalments,” and otherwise complying with the lease. It was the intention of the parties, in the execution of the lease and option clause, that the plaintiffs should have the right to occupy the premises as tenants under the lease for a term of 5 years, with the privilege of an extension for a like term by complying with the provisions of the lease, and that the plaintiffs should also have the right to a contract from the defendants for purchase of said premises by the plaintiffs, under and in accordance with the terms of the option clause. It was the duty of the defendants, on demand, to furnish plaintiffs with an abstract of title or a title policy. Notwithstanding the exercise of the option, the plaintiffs continue to have the right of occupancy of the premises under the lease by compliance with the requirements of the lease and option when read together. Under the contract, plaintiffs have properly exercised their option to purchase and may continue in possession under the lease, their obligation being to pay the instalments and interest under the option, and to pay the rent and otherwise comply with the cov enants under their lease. Thus the plaintiffs may ultimately acquire ownership of the property instead of reaching the end of their rights entirely by expiration of their lease. Obviously, the right of the plaintiffs both as to occupancy and ownership otherwise would expire if- they should not exercise their option to purchase or continue to comply with the requirements of the. lease.
Plaintiffs in their brief propose:
“If this Court feels that the plaintiffs are not entitled to possession unless the full purchase price is paid, we stand ready, able and willing, and hereby offer and tender the full amount of the purchase price, and this Court may fix a time within which the money deed and abstract may be exchanged.”
That question was definitely settled contrary to their proposal, in the Polczynski Case, supra, when the Court said (pp 429, 430):
“ITe [plaintiff] now offers to pay the purchase price in full with interest on all deferred payments since the time of the tender. That is a matter between the parties. Courts cannot make contracts for them.”
Certain other questions apparently were settled by the trial court in entering the decree, which have not been raised or questioned on this appeal and are not inconsistent with the foregoing conclusions herein, and consequently they need not be referred to. As already indicated, the defendants’ main contention is that the plaintiffs did not become entitled' to possession under the option in the absence of an express provision to that effect. Defendants’ claim in that regard is in accord with our previous decisions hereinbefore cited. In Emmons v. State Land Office Board, supra, Mr. Justice Butzel, writing for the Court, said:
“Without some provision by rule or in the contract, plaintiff would not have become entitled to possession of the property until he paid for it and it would be subject to taxes levied after the date of the bid. The general rule is that unless the contract provides for possession, the right of a contract purchaser to possession does not become operative until full payment of the purchase price. Polczynski v. Nowicki, 227 Mich 415.”
In said Emmons Case, supra, the plaintiff was in possession of the premises as a tenant at the time he exercised his option for a land contract on January 20, 1942, having paid the rent to February 6th. We held that his possession as a tenant continued and that he was liable for rent until he subsequently received a land contract with express provisions for possession.
A decree should be entered in this Court conforming to the decree entered below except as modified by the foregoing conclusions, and remanding for enforcement thereof. No costs should be awarded, each party prevailing only in part.
Carr and Sharpe, JJ., concurred with Boyles, J. | [
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Beasley, P.J.
On June 30, 1975, the positions of the ten petitioners, employees of the research laboratory at the Kalamazoo State Hospital, were terminated. They jointly filed grievances seeking to overturn the decision to terminate and were unsuccessful. On May 21, 1980, the decision of the hearing officer, denying the grievances, was affirmed by the circuit court. Petitioners appeal as of right.
On appeal, petitioners contend that the hearing officer’s finding that the termination of their employment was made for reasons of "administrative efficiency” was not supported by competent evidence. They claim that the research laboratory at the Kalamazoo State Hospital was abolished after one of the petitioners, Dr. Ronald R. Hutchinson, sided with the "losing camp” in a dispute within the Department of Mental Health. Petitioners argue that the decision to terminate was not prompted by administrative efficiency, but, rather, was the result of political pressures. They argue that their positions could not be abolished as a pretext for terminating their employment without following the safeguards provided employees dismissed for cause under Rule 32 of the Rules of the Civil Service Commission.
Article 11, § 5 of the 1963 Michigan Constitution provides, in pertinent part:
"The appointing authorities may create or abolish positions for reasons of administrative efficiency without the approval of the commission. Positions shall not be created nor abolished except for reasons of administrative efficiency. Any employee considering himself aggrieved by the abolition or creation of a position shall have a right of appeal to the commission through established grievance procedures.”
The power to abolish positions is also vested in the appointing authority under Rule 16.5 of the Rules of the Civil Service Commission. That rule states that employees separated as a result of abolishing their position have re-employment preference rights as set out in the rules.
The Civil Service Rules also state:
"32.1 Causes. — An employee in the state civil service may be dismissed or suspended for any of the following reasons:
"32.1a Failure to carry out the duties and obligations imposed upon him by these rules and by agency management.
"32.1b Conduct unbecoming a state employee.
"32.1c Unsatisfactory service.
"32.2 Procedure. — Whenever an appointing authority considers it necessary to dismiss or suspend an employee, he shall:
"32.2a Notify the employee in writing giving specific reasons for the action.
"32.2b Give prior or concurrent written notice to the state personnel director.
"32.2c Supplement the notice to the state personnel director with the prescribed form within five days and furnish a copy of the form to the employee.”
The hearing officer found that the department validly terminated the research department for reasons of administrative efficiency:
"Were the positions abolished 'for reasons of administrative efficiency’ as authorized by the constitution in the foregoing quoted sections? The oral testimony and the exhibits offer abundant proof that they were. The hospital superintendent, the department director and his deputy director all testified that 'administrative efficiency’ was the basis of the abolishment of the entire department and the consequent abolishment of the grievants’ positions. The financial squeeze starting in 1974 and continuing required a reduction in expenditure throughout the department and the maintenance of adequate patient care and treatment at a reduced cost became the password. * * * This failure, plus the required savings in the hospital budget, brought about the need to abolish the positions for reasons of administrative efficiency. The conflicting testimony concerning the amount of money that the state would save each year is of no great consequence. * * * 'Administrative efficiency’ and 'reduced expenditures’ are not synonymous. In fact the former can exist without the latter.
"The abolishment of a controversial, troublesome department which was unproductive from the standpoint of the hospital’s mission to serve and treat mental patients would, in my opinion, amount to abolishment for administrative efficiency under the constitution, even without the showing of a monetary savings. The testimony concerning bad publicity, adverse findings in an audit and administrative conflicts bolster the theory of abolishment for administrative efficiency rather than detracting from it. Had the framers of the constitution meant to say that positions could only be abolished to 'save money’, they would have so stated.
"Nowhere in the testimony or in the exhibits is there any evidence that any part of the duties of the terminated employees were transferred to other employees or that any new positions were created to take over their former duties. This amounts to strong evidence that the abolishment of research and the positions therein was definitely for reasons of administrative efficiency.”
The circuit court agreed.
On appeal, this Court will affirm the holding of the hearing officer so long as that ruling is not contrary to law and is supported by competent, material and substantial evidence on the whole record, and is not arbitrary, capricious or clearly an abuse of discretion.
In Michigan Employment Relations Comm v Detroit Symphony Orchestra, Inc, the Michigan Supreme Court discussed the meaning of "substantial evidence” and found:
"What the drafters of the Constitution intended [by the phrase substantial evidence] was a thorough judicial review of administrative decision, a review which considers the whole record — that is, both sides of the record — not just those portions of the record supporting the findings of the administrative agency. Although such a review does not attain the status of de novo review, it necessarily entails a degree of qualitative and quantitative evaluation of evidence considered by an agency. Such review must be undertaken with considerable sensitivity in order that the courts accord due deference to administrative expertise and not invade the province of exclusive administrative fact-finding by displacing an agency’s choice between two reasonably differing views.”
Petitioners point out that a substantial amount of the testimony indicated that the directors of the Kalamazoo State Hospital had political motivation for terminating the research department. These political motives included the adverse publicity that surrounded an audit of the department, the alignment of Dr. Hutchinson with the ousted faction in a political dispute, and the antagonism created by placing the research department at the Kalamazoo State Hospital facilities. The Department of Mental Health does not dispute that there was a great deal of antagonism in the Kalamazoo State Hospital facility.
The evidence clearly indicates, however, that there were valid administrative reasons for terminating the department. In the program report of the research department, dated October, 1974, it was noted that "no known benefits [in treatment programs] have yet resulted from Research Department efforts”.
In a letter from Dr. Hutchinson to Department of Mental Health officials, dated February 11, 1975, Dr. Hutchinson himself stated:
"I must agree that the Research Program can not [sic] currently justify continued Department of Mental Health financial support, especially in view of the lack of involvement in patient treatment and the very general and severe financial over-extension which confronts the state government.”
Petitioners argue that the ulterior motive of the department invalidates the decision to terminate. Petitioners cite only cases dealing with age and sex discrimination, which involve a higher level of scrutiny. The general rule is, however, that ulterior motives will not invalidate an otherwise valid decision to terminate a position due to administrative efficiency.
While it is true that good faith must be shown before a position may be abolished, good faith is established by a showing that the abolishment of the position was justified by economy and efficiency. This can be shown by proof that the duties were not assigned to another person after the position was abolished.
In the case at bar, the hearing officer properly recognized that the decision to terminate was made in good faith. Furthermore, there was no showing of any subterfuge in the termination, as the duties of the positions terminated were not transferred to any other persons. Under these circumstances, the possible ulterior motives of the department are irrelevant.
Petitioners further argue that the fact that none of the research department employees continued their service with the state supports the showing that they were fired rather than terminated due to administrative efficiency. A review of the memoranda from the personnel director of the Kalamazoo State Hospital to the terminated employees indicates, however, that those employees who had established status and were entitled to employment preferences were offered opportunities, as required by civil service regulations. The fact that those employees elected not to continue employment with the state and secured employment with Dr. Hutchinson at his Foundation for Behavioral Research does not invalidate the termination.
Petitioners also claim that, despite the fact that the original grievance involved ten petitioners, the circuit court dealt with the claims of only five of those petitioners. The record established at the hearing contains evidence relating to all ten terminated employees, and the hearing officer, in his opinion, referred to all ten terminated employees by name. In the circuit court’s opinion, however, only five petitioners are mentioned by name.
We find no reversible error. It was unnecessary to name each of the petitioners individually, as they were raising the same legal issues in their brief. The claims of each of the petitioners were carefully set out in briefs before the court, and there was no prejudice to any of them by failure to name them specifically.
Affirmed.
Const 1963, art 6, § 28, MCL 24.306; MSA 3.560(206).
393 Mich 116, 124; 223 NW2d 283 (1974).
Anno: Determination As to Good Faith in Abolition of Public Office or Employment Subject to Civil Service or Merit System, 87 ALR3d 1165. Abbott v Poughkeepsie, 98 Misc 2d 601; 414 NYS2d 458 (1979), aff’d 71 App Div 2d 1010; 420 NYS2d 367 (1979), Burkhart v Moore, 580 SW2d 108 (Tex Civ App, 1979), Juergensmeyer v Bensinger, 7 Ill App 3d 698; 288 NW2d 519 (1972), Amodio v Civil Service Comm, 81 NJ Super 22; 194 A2d 512 (1963).
Burkhart v Moore, supra, Juergensmeyer vBensinger, supra. | [
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Per Curiam.
Cecil H. Turner was a patient at the Kalamazoo Regional Psychiatric Hospital from 1969 until his death in 1979. This case centers on the liability of his estate and spouse to reimburse the state for mental health services.
In 1969, Lois P. Turner petitioned the Kent Probate Court to reduce or eliminate a prior order for 100 percent reimbursement of the expenses for mental health services rendered to her husband, Cecil H. Turner, mentally incompetent. On December 9, 1969, the probate court ordered that no further reimbursement would be required, provided that the petitioner pay Cecil H. Turner’s retirement benefit and his portion of social security benefits then being received to the Department of Treasury. This order was dependent upon payment by the petitioner of the full reimbursement charge for the year 1969.
The new Mental Health Code effective in 1975 changed the method of determining financial liability for mental health services. MCL 330.1800 et seq.; MSA 14.800(800) et seq. Under provisions of the new code, the respondent made a determination of the petitioner’s financial liability for services provided to Cecil H. Turner by the state. The petitioner contested the respondent’s determination of financial liability by requesting an administrative hearing pursuant to MCL 330.1834; MSA 14.800(834). At the administrative hearing, counsel for the petitioner argued that the 1969 probate court order was controlling and barred a subsequent redetermination of liability under the new Mental Health Code. In addition counsel protested the absence of rules pertaining to a determination of ability to pay. The Mental Health Code requires that rules be promulgated to particularize procedures for determining ability to pay. MCL 330.1842; MSA 14.800(842).
The administrative law judge entered an interim order which required the respondent to redetermine the petitioner’s liability based on appropriate information to be provided by the petitioner. The petitioner refused to make a full disclosure of appropriate information so the administrative law judge affirmed the original determination of liability. The administrative law judge found that the respondent had no rules in effect at the time of the hearing but concluded that since the hearing was held pursuant to the contested case provision of the Administrative Procedures Act, MCL 24.271 et seq.; MSA 3.560(171) et seq., the petitioner was afforded due process. Further, the respondent’s procedures do provide adequate guidelines regarding the formulation of a liability determination and provide adequate due process notice of the course which the petitioner must pursue.
The petitioner appealed the decision of the administrative law judge to the Kent County Probate Court as provided by the code, MCL 330.1836; MSA 14.800(836). On September 11, 1978, the probate court entered an order affirming the administrative law judge.
The petitioner appealed the probate court decision to Kent County Circuit Court. The circuit court found that the December, 1969, probate court order was not a bar to the establishment of a new reimbursement liability. In addition, the circuit court judge found that the administrative procedures of the administrative law judge were in compliance with the Mental Health Code and did afford the parties due process of law. In the court’s opinion the determination of the ability to pay was not that complicated, was one that is determined in many aspects of life and information and that data needed for that computation is readily available. This Court granted leave to appeal.
First, we deal with the petitioner’s contention that the December, 1969, probate court order bars a redetermination of plaintiffs reimbursement liability. The 1969 probate court decision indicates that the order for reimbursement was of a continuing nature. Regular payments of plaintiffs retirement benefits and social security benefits were to replace the prior 100 percent reimbursement order. Since institutionalization was a continuing factor, it was not the intent of the former order to hold that the Mental Health Code could not reach or attempt to reach persons responsible for Cecil H. Turner’s care in order to determine whether there was an ability to pay. The purpose and intent of the 1969 order was not to act as a full and final determination of the liabilities between the parties.
The petitioner has asserted that the 1969 order of the probate court is res judicata and therefore bars any further action by the state or the petitioner. In a similar case, this Court in In re Raseman Estate, 18 Mich App 91; 170 NW2d 503 (1969), found that the doctrine of res judicata is not immutable. The reason why the probate court order can be modified is because it operates in futuro as to facts that had not occurred when the order was entered. We conclude that the 1969 order of the probate court does not prevent a redetermination of liability and subsequent enforcement proceedings where in‘the interval the facts have changed which alter the legal rights and relations of the parties.
Additionally, the Legislature contemplated that probate court orders imposing a continuing financial liability would remain in effect only until defendant redetermined financial liability. Prior to the new Mental Health Code, the probate court’s reimbursement order was pursuant to 1923 PA 151. This act was specifically repealed under the new Mental Health Code, MCL 330.2106; MSA 14.800(1106). Section 1104 of the act, MCL 330.2104; MSA 14.800(1104), mandates that all actions having legal affect under any act repealed by the new code which are inconsistent with the new code shall be redetermined and made consistent with the new act. The respondent was obligated to comply with the mandatory provisions of the Mental Health Code which required a redetermination of financial liability.
Thus, under either prior law or the new Mental Health Code, the order of the probate court was subject to modification.
We now turn to the second issue raised by the petitioner. The petitioner argues a denial of due process because the respondent had not promulgated substantive rules to use in determining financial responsibility. Section 842 of the Mental Health Code, MCL 330.1842; MSA 14.800(842), requires that rules shall particularize procedures for determining ability to pay. The code further provides that as soon as practicable, but no later than two years after the act shall take effect, the respondent would make some determination or redetermination of financial liability. MCL 330.2104; MSA 14.800(1104).
We find that the petitioner was afforded due process notwithstanding the absence of required rules. In determining ability to pay, the department used factors enumerated in § 818 of the code, MCL 330.1818; MSA 14.800(818). These factors include income, expenses, insurance proceeds, number and condition of dependents, assets, and liabilities. The respondent also used the limitations prescribed by the code. These include limitations on net worth reduction, spousal liability, and cost of services. The respondent’s use of the statutory limitations and factors to determine ability to pay allowed the petitioner to evaluate whether the respondent’s determination was fair and properly applied.
The hearings to contest the redetermination were conducted pursuant to the contested case provisions of the Administrative Procedures Act, MCL 24.271 et seq.; MSA 3.560(171) et seq. This act afforded the petitioner all the procedural safeguards of due process. See, Atkins v Dep’t of Social Services, 92 Mich App 313; 284 NW2d 794 (1979).
In Midland Twp v State Boundary Comm, 64 Mich App 700; 236 NW2d 551 (1975), rev’d on other grounds 401 Mich 641 (1977), this Court held that failure of the State Boundary Commission to promulgate rules as required by statute although unfathomable did not prejudice the parties. The same is true here.
In the instant case, the petitioner has not pointed out how the absence of rules has in any way prejudiced her presentment of opposition to the redetermination. The petitioner has failed to show how the respondent’s failure adversely affects the decision made by its reimbursement officer or administrative law judge. After the administrative hearing, the petitioner had an opportunity to participate in the determination of financial liability. An interim order of the administrative law judge required the respondent to make another determination based on additional information provided by the petitioner. The petitioner refused to make a full disclosure of this information. In light of the time necessary to promulgate rules pursuant to the Administrative Procedures Act and the two-year limitation for redeterminations, the respondent acted reasonably. The petitioner was. neither prejudiced nor denied due process.
For these reasons we affirm.
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D. C. Riley, J.
On May 14, 1979, defendant pled guilty to a charge of violating the so-called felony-nonsupport statute, MCL 750.165; MSA 28.362. The judge delayed sentencing for one year on the condition that defendant pay $20 per week per child for support of his three minor children and that he pay certain other costs. Upon defendant’s failure to comply with the conditions attendant to the delayed sentence, defendant was brought in for sentencing before the one-year period expired. On January 28, 1980, defendant was sentenced to 60 days incarceration in the county jail and now appeals as of right.
Defendant does not challenge the factual basis upon which his conviction rests. More fundamen tally, defendant assails the constitutionality of the felony-nonsupport statute, claiming that it violates his constitutional rights to due process and equal protection.
The threshold issue is whether appellate review of these issues is precluded because of defendant’s failure to raise them in the court below or as a result of his tendering of a plea of guilty to the offense charged. As to the latter, we are of the opinion that a plea of guilty does not waive appellate consideration of the constitutionality of the statute under which defendant was convicted. People v Alvin Johnson, 396 Mich 424, 444; 240 NW2d 729 (1976), People v Riley, 88 Mich App 727, 730; 279 NW2d 303 (1979). We are also of the opinion that the defendant’s failure to raise the issue below should not preclude our review, given the serious due process implications of conviction under an invalid statute, especially where, as here, defendant was not represented by counsel at the time he tendered his plea. See People v Miller, 49 Mich App 53, 61; 211 NW2d 242 (1973), People v De Silva, 32 Mich App 707, 713; 189 NW2d 362 (1971).
Turning to the merits of defendant’s contentions, he first argues that the statute abridges his constitutional guarantee of equal protection under the law because of its discriminatory application only to "husbands” and "fathers”. The statute in issue provides:
"Where in any decree of divorce, or decree of separate maintenance granted in this state, or by order entered during the pendency of any such proceedings, if personal service is had upon the husband or upon the father of any minor child or children, under the age of 17 years, or such husband or father shall have entered an appearance in such proceedings either as plaintiff or defendant, the court shall order such husband to pay any amount to the clerk or friend of the court for the support of any wife or former wife who by reason of any physical or mental affliction is unable to support herself, or father to pay any amount to the clerk or friend of the court for the support of such minor child or children, and said husband or father shall refuse or neglect to pay such amount at the time stated in such order and shall leave the state of Michigan, said husband or father shall be guilty of a felony: Provided, however, if at any time before sentence he shall enter into bond to the people of the state of Michigan, in such penal sum and with such surety or sureties as the court may fix, conditioned that he will comply with the terms of such order or decree, then the court may suspend sentence therein: Provided further, That upon failure of such person to comply with said undertaking he may be ordered to appear before the court and show cause why sentence should not be imposed, whereupon the court may pass sentence, or for good cause shown may modify the order and take a new undertaking and further suspend sentence as may be just and proper.” MCL 750.165; MSA 28.362.
Preliminarily, we note several well-established rules of statutory construction. In Thomas v Consumers Power Co, 58 Mich App 486, 492; 228 NW2d 786 (1975), the Court stated that courts should attempt to construe statutes in a fashion that gives them force and validity and to avoid constructions that will nullify them. Similarly, the Supreme Court has stated that it seeks "to save legislation from unconstitutionality wherever possible by reasonable and permissible interpretation”. Fritts v Krugh, 354 Mich 97, 114; 92 NW2d 604 (1958). All legislation is presumed constitutional and all doubts are resolved in favor of upholding the validity of legislative enactments. People v Neumayer, 405 Mich 341; 275 NW2d 230 (1979), People v Piasecki, 333 Mich 122; 52 NW2d 626 (1952). When a statute is susceptible to two constructions, one consistent with the constitution and the other inconsistent, the one consistent with the constitution is preferred as that presumptively intended by the Legislature. People v Dubina, 304 Mich 363, 369; 8 NW2d 99 (1943). Finally, as this Court stated in Simmons v Marlette Board of Education, 73 Mich App 1, 5; 250 NW2d 777 (1976):
"Where one section of a statute is ambiguously worded, legislative intent may be found by clear and express language found in other sections. Bidwell v Whitaker, 1 Mich 469 (1850). In interpreting a statute we must read the entire act as a whole, and the meaning to be given to one section should be arrived at after due consideration of other sections, so as to produce a harmonious and consistent enactment as a whole. Joslin v Campbell, Wyant & Cannon Foundry Co, 359 Mich 420; 102 NW2d 584 (1960).”
The statute under which defendant was convicted is part of the Penal Code. MCL 750.10; MSA 28.200 provides that, as found throughout the Penal Code, "[t]he masculine gender includes the feminine and neuter genders”. This provision indicates a clear legislative intent that the Penal Code apply to females as well as males. In addition, the Michigan Legislature amended the custody and maintenance provisions of the divorce law to provide that either parent may be ordered to pay child support. MCL 552.17a; MSA 25.97(1). It thus appears that the obvious legislative intent was to place fathers and mothers on equal footing with regard to the responsibility of providing child support.
We also note that MCL 8.3b; MSA 2.212(2) provides that statutory words importing the masculine gender only may extend and be applied to females as well as males. More importantly, MCL 750.10; MSA 28.200 and the original version of MCL 750.165; MSA 28.362 were part of the same act of the Legislature, 1931 PA 328, a further indication of the Legislature’s intent to have the former read into the latter for purposes of application of the penal provision in issue now.
Further, in the case of Navagata v Navagata, 99 Misc 2d 90; 415 NYS2d 372, 373 (1979), which involved an application for an order adjudging the plaintiff-husband in contempt for failure to comply with an order awarding defendant-wife temporary alimony, plaintiff argued that the statute under which the alimony order was entered was unconstitutional as being violative of equal protection. In response to this claim, the Court stated that:
"[T]he Court may utilize the principle authorizing it to construe the statute as to avoid an unconstitutional interpretation. (Carter v Carter, 58 AD2d 438; 397 NYS2d 88 [1977]). No violence is done to either the purpose or intent of the statute with respect to the award of temporary alimony in appropriate matrimonial actions by construing and interpreting the statute as to equalize the eligibility of a spouse, irrespective of sex or gender, to the benefits thereof. This Court so construes the statute.”
In light of the fairly recent extension of child support obligations to mothers and the rules of statutory construction set forth in MCL 8.3b; MSA 2.212(2), and that found in MCL 750.10; MSA 28.200, as well as the judicial rules of construction as mentioned hereinbefore, including the rule of construction employed by the Court to save the statute in Navagata, we conclude that the statute in question applies equally to males and females and is therefore not violative of equal protection.
Defendant’s due process challenge is that the statute under which he was convicted is unconstitutionally vague with respect to the conduct proscribed.
Vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in light of the facts of the case at hand. People v Howell, 396 Mich 16, 21; 238 NW2d 148 (1976). The basic standard for determining whether a statute is void for vagueness is found in People v Herron, 68 Mich App 381, 382; 242 NW2d 584 (1976), where the Court stated:
" '[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.’ Lanzetta v New Jersey, 306 US 451, 453; 59 S Ct 618; 83 L Ed 888 (1939).”
The parameters of a vagueness inquiry are clearly spelled out in People v Harbour, 76 Mich App 552, 558; 257 NW2d 165 (1977), as follows:
"The proper vagueness inquiry is whether the statute 'does not provide fair notice of the conduct proscribed’, or whether it 'confers on the trier of fact unstructured and unlimited discretion to determine whether an offense has been committed’. People v Howell, 396 Mich 16, 20; 238 NW2d 148, 149 (1976), accord People v Downes, 394 Mich 17, 23-24; 228 NW2d 212, 215-216 (1975). The vagueness challenge must be examined in light of the facts at hand; that is, whether the statute is vague as applied to the conduct allegedly proscribed in the instant case. See People v Howell, supra. Even though the statute may be susceptible to impermissible interpretations, reversal is not required where the statute can be narrowly construed so as to render it sufficiently definite to avoid vagueness, and where defendant’s conduct falls within that proscribed by the properly construed statute. See People v Howell, supra, 23-25; 238 NW2d 150-152, People v Downes, supra, 25-27; 228 NW2d 216-217, People v Purifoy, 34 Mich App 318, 322-324; 191 NW2d 63, 64-65 (1971).”
The statute in question was construed by this Court in People v Ditton, 78 Mich App 610; 261 NW2d 182 (1977), over 18 months before a complaint was filed against the defendant. In Ditton, the Court held that inability to pay is a defense to the charge and that the refusal to pay or neglect thereof must occur at or prior to the time a defendant leaves the state of Michigan. Ditton, supra, 613, 617. The Ditton Court also held that refusal or neglect must be coupled with flight. Id., 613. Thus, it is clear that the statute, as construed prior to the institution of proceedings against the defendant, required a refusal to pay or a neglect of the duty to do so which must have occurred contemporaneously with or prior to a defendant’s leaving the state. These are the elements of the offense. There is no vagueness in this regard.
The remaining question concerns defendant’s claim as to imprecision with respect to the meaning of the word "flight”. As plaintiff argues, this statute presupposes the defendant’s knowledge of the obligation of support, because of the previously entered order attendant to a decree of divorce or a modification thereof. As construed in Ditton, the statute requires neglect or refusal to pay prior to or at the time of leaving. The term "flight”, read in context in the statute, means no more than leaving the state contemporaneously with or after refusing or neglecting to pay support, with knowledge of an obligation to do so. The term "flight”, as understood by men of common intelligence, does not encompass the crossing of the state line where the leaving of the state is merely temporary or incident to one’s occupation. If one leaves the state permanently or on a prolonged basis, doing so with the knowledge that an unfulfilled obligation of support exists by reason of neglect or refusal to pay, the flight requirement is satisfied. We cannot say this interpretation gives a trial court unfettered discretion to determine whether an offense has been committed. People v Harbour, supra, 558.
We refuse to reach defendant’s hypothetical claim as it is irrelevant to a vagueness inquiry outside the First Amendment area. We believe defendant’s conduct falls within the ambit of the statute as construed previously by Ditton and as construed further here. Defendant may not complain of lack of notice as to the conduct proscribed by the statute. Howell, supra, 23-25, Harbour, supra, 558.
Affirmed.
MCL 552.17a; MSA 25.97(1) provides as follows:
"The court shall have jurisdiction in making such order or judgment relative to the minor children of such parties as authorized in this chapter to award custody of each child to 1 of the parties or a third person until each child has attained the age of 18 years and may require either parent to pay such allowance as may be deemed proper for the support of each child until each child shall have attained that age and may in case of exceptional circumstances, require payment of such allowance for any child after he attains that age. However, on application for modification of a judgment or order where applicant is in contempt, for cause shown, the court may waive the contempt and proceed to a hearing without prejudice to applicant’s rights and render a determination on the merits.”
We recognize that our opinion in this matter conflicts with a recent opinion of another panel of this Court that considered the same issue. See People v Lewis, 107 Mich App 277; 309 NW2d 234 (1981). We believe that Lewis was wrongly decided, however, in that the Lewis opinion did not take into consideration MCL 750.Í0; MSA 28.200, which evidences a legislative intent to make the Penal Code applicable to men and women equally, and did not properly consider several well-established rules of statutory construction considered herein. | [
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Per Curiam.
Defendant and two codefendants were jointly tried on three charges: possession of dangerous explosive material with the intent to use it unlawfully against the person or property of another, MCL 750.211; MSA 28.408; carrying a weapon in an automobile,' MCL 750.227; MSA 28.424; and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Defendant was convicted on the second count, carrying a weapon in an automobile, and a mistrial was declared on the other two charges. Defendant subsequently pled guilty to possession of a bomb or bomb shell, MCL 750.224; MSA 28.421, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Defendant’s plea was conditioned on his right to raise the following two issues on appeal.
The first issue is whether the trial court erred in denying defendant’s motion to dismiss because the evidence against the defendant was obtained unlawfully.
The record indicates the automobile was stopped because of a trafile violation. Two officers approached the vehicle, one on either side. Trooper Ackley knocked on the window of the passenger’s side of the car and a codefendant opened the door. Ackley then asked both codefendant and defendant for some identification. Defendant contends that this request for identification amounted to an unlawful invasion of his right to be secure against unreasonable searches and seizures in violation of his Fourth Amendment rights. We disagree.
The automobile in which the defendant was riding had already been properly stopped for a traffic violation. Officer Ackley had a right to walk up on the passenger’s side of the vehicle and keep the passengers under observation while his partner talked to the driver. He also had a right, like any other citizen, to address questions to the defendant. See Terry v Ohio, Mr. Justice White concurring, 392 US 1, 35; 88 S Ct 1868; 20 L Ed 2d 889 (1968). See also United States v Mendenhall, 446 US 544; 100 S Ct 1870; 64 L Ed 2d 497 (1980). Further, he had the right to order the passengers out of the vehicle in order to protect himself and his partner from "unobserved movements” which may have been assaultive in nature. Pennsylvania v Mimms, 434 US 106, 110-111; 98 S Ct 330; 54 L Ed 2d 331 (1977).
There was no search. Although the explosive device was partially concealed, at least part of it was in plain view on the floor of the vehicle. The officer was in a place where he had a right to be. The evidence was properly seized. People v Whalen, 390 Mich 672; 213 NW2d 116 (1973). The trial court did not err in refusing to grant defendant’s motion to dismiss.
The second issue is whether it was error for the trial court to deny defendant’s motion for directed verdict. An essential element of the charged offense was the intent to use the explosive material unlawfully against the person or property of another. MCL 750.211; MSA 28.408. Defendant argues that the prosecution presented no evidence of such intent and that his motion for directed verdict, therefore, should have been granted.
When ruling on a motion for a directed verdict, the trial court must consider the evidence presented by the prosecution up to the time the motion is made, view that evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. People v Hampton, 407 Mich 354; 285 NW2d 284 (1979).
From our review of the record we conclude that there was sufficient evidence of unlawful intent. The smokeless powder was found in a device referred to by the firearms expert as a pipe bomb. If detonated, it would react very similarly to a hand grenade. The device was found partially concealed in an automobile. Three other weapons together with assorted ammunition were also found hidden in the vehicle. The fact that the smokeless powder was found in an explosive device partially concealed with three other concealed weapons and ammunition supports the inference that the device was intended to be used as a weapon. We are persuaded, therefore, under the circumstances of this case, that practically the only reasonable inference that could be drawn from the evidence is that the defendant possessed the explosive material with the intent to use it unlawfully against the person or property of another.
The trial court properly denied defendant’s motion for a directed verdict. The defendant’s convictions are affirmed._
Defendant was charged under MCL 750.211; MSA 28.408, with possession of explosive material with intent to use it unlawfully against the person or property of another. Unlike MCL 750.211a; MSA 28.408(1), that section of the statute did not contain a provision that mere possession of the explosive material was prima facie evidence of the possessor’s intent to use it unlawfully against another. The court’s instruction on this point, however, is irrelevant in this appeal since the defendant was not convicted on the possession of explosives charge. The issue before us is whether, at the time the motion for a directed verdict was made, there was sufficient evidence to support a guilty verdict under the standard enunciated in People v Hampton, 407 Mich 354; 285 NW2d 284 (1979). We have resolved this issue against the defendant. | [
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Per Curiam.
Defendants were convicted by a jury of first-degree felony murder, MCL 750.316; MSA 28.548, armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Defendant Smith was sentenced to a mandatory term of life imprisonment for first-degree murder, to from 40 to 60 years imprisonment for armed robbery, and to two years imprisonment for the felony-firearm offense. Defendant Reid was also sentenced to life imprisonment for first-degree murder and to two years for the felony-firearm conviction, but was sentenced to from 20 to 40 years imprisonment for the armed robbery. Both defendants appeal by right, and we have consolidated the two appeals.
The charges arose from defendants’ March 10, 1979, robbery of Lee’s Texas Style Barbeque on Fenkell Avenue in Detroit. During the course of that robbery defendant Smith shot and fatally wounded the owner of the restaurant, Lee Kingcade.
In the first of eight issues on appeal, defendants argue that the trial court committed error requiring reversal by instructing the jury that they could infer the element of malice necessary for a murder conviction from the intention to commit the underlying felony of armed robbery. The Supreme Court recently has held that such an in struction is incorrect since malice is an essential element of murder that cannot be inferred solely from the intent to commit the underlying felony. People v Aaron, 409 Mich 672; 299 NW2d 304 (1980). Nonetheless, we decline to give Aaron retroactive application. In that decision the Supreme Court specifically stated that its holding was to apply to trials in progress and occurring after its November 24, 1980, release date. Id., 734.
Defendant Smith argues that the instructions on murder were also erroneous because they failed to limit the definition of malice to an intent to kill. See People v Garcia, 398 Mich 250; 247 NW2d 547 (1976). Because defendants did not object to the instruction, reversal is precluded absent manifest injustice. People v Jackson, 77 Mich App 392, 395; 258 NW2d 89 (1977). No injustice is apparent in this case. The holding of Garcia is inapplicable to felony murder and second-degree murder cases. Garcia, supra, People v Hill, 94 Mich App 777; 288 NW2d 408 (1979). The jury was not instructed with regard to first-degree premeditated murder, so defendant Smith’s allegation of error is without merit.
Defendants’ next argument on appeal is that their multiple convictions for armed robbery and first-degree felony murder constituted double punishment in violation of the Double Jeopardy Clauses , of the United States and Michigan Constitutions. We agree and therefore vacate defendants’ convictions and sentences for armed robbery. People v Anderson, 62 Mich App 475, 482-483; 233 NW2d 620 (1975), People v Robert G Thompson, 81 Mich App 348; 265 NW2d 632 (1978).
Defendant Reid argues that he was denied effective assistance of counsel when defense counsel failed to move to suppress his identification by two prosecution witnesses, Winifred Reed and Bobby Todd. Ms. Reed, in addition to identifying defendant Reid at trial, identified Reid’s picture in a photographic display and picked him out at a corporeal lineup. Defendant argues that the photographic display was improper because it was conducted without counsel even though defendant was already in custody in Atlanta, Georgia. He also contends that Ms. Reed’s lineup identification was tainted by the prior photographic display and by the fact that Ms. Reed was told by the police that they had "possible suspects” for her to look at. Defendant Reid argues that Bobby Todd’s identification was tainted by impermissibly suggestive identifications at the preliminary examination and an earlier trial. See People v Solomon, 391 Mich 767; 214 NW2d 60 (1974).
A criminal defendant may be denied the right to a fair trial if his attorney makes a serious mistake. However, a new trial is not justified unless the reviewing court concludes that but for the mistake the defendant would have had a reasonably likely chance of acquittal. Garcia, supra, 266, People v Degraffenreid, 19 Mich App 702, 718; 173 NW2d 317 (1969). After scrutinizing the trial record, we cannot say that such a serious mistake occurred.
Initially, the record does not reveal that the photographic display was made without substitute counsel. Ms. Reed recalled the presence of an individual during the display, but could not remember if he introduced himself as a defense attorney. Moreover, the corporeal lineup was not tainted by the fact that Ms. Reed was told that the police had "possible suspects”. Whenever a witness is called in for a lineup that witness may infer that the lineup will contain possible suspects. The fact that the police stated the obvious hardly can be seen as an inducement of the witness to pick someone out of the lineup. Cf. United States v Gambrill, 146 US App DC 72, 75, fn 3; 449 F2d 1148 (1971). Even if we were to assume that counsel was not present at the photographic display and that Ms. Reed’s trial identification was impermissibly tainted, defense counsel’s failure to suppress identification was not such a mistake but for which defendant Reid would have had a reasonably likely chance of acquittal.
Witness Bobby Todd’s testimony unequivocally placed both defendants in the restaurant booths where Ms. Reed stated that the two robbers sat prior to the crime. Even without Ms. Reed’s actual identification linking defendant Reid to the event, we cannot say that a contrary verdict was reasonably likely. We disagree with the contention that Todd’s identification was tainted by his prior opportunities to observe the defendants in court. Unlike Solomon, supra, there is no indication in this case that the police suggested to Todd that defendant was the offender, nor were the earlier court procedures conducted in camera. Further, the time between the robbery and trial confrontation was only six months, as opposed to the two and one-half years in Solomon. Todd had a more than adequate opportunity to observe defendant in the restaurant. His attention was drawn to Smith and Reid by their conduct: they sat in separate booths with their backs to one another, yet acted as if they were together. Cf. People v Belenor, 71 Mich App 10; 246 NW2d 355 (1976), People v Manuel Johnson, 58 Mich App 347; 227 NW2d 337 (1975). We conclude that trial counsel’s failure to move for suppression of eyewitness identification did not deny defendant Reid a fair trial.
Defendants’ remaining issues merit only limited discussion. The trial court did not err in instructing the jury on alternative theories of defendant Reid’s guilt, that is, as a principal or as an aider and abettor. People v Paintman, 92 Mich App 412, 416-418; 285 NW2d 206 (1979). The imposition of a mandatory, nonparolable life sentence under the statute proscribing first-degree murder does not constitute cruel and unusual punishment. People v Hall, 396 Mich 650; 242 NW2d 377 (1976). Defendant Smith’s allegation that the complaint contained a fatally defective mistake was not preserved for appeal by timely objection. People v Palmer, 27 Mich App 334; 183 NW2d 355 (1970). In any event, the error was not such to have misled or otherwise prejudiced defendant.
In the final claim on appeal, defendant Smith argues that the instruction on malice presented the jury with alternative theories of guilt, creating the possibility of a nonunanimous verdict. See People v Olsson, 56 Mich App 500; 224 NW2d 691 (1974). We disagree. The instruction merely served to define, in lay terms, a relatively complex legal term.
Defendants’ convictions and sentences for first-degree murder and possession of a firearm during the commission of a felony are affirmed. Defendants’ convictions for armed robbery are reversed and their respective sentences for armed robbery vacated.
The pertinent portion of the instruction in question read:
"Fourth, for murder you must find that the defendant or defendants consciously and knowingly performed the act which caused the death. The defendants must have either intended to kill, that is, he must have intended to do the act knowing it would result in death or great serious bodily injury or he must have knowingly created a very high risk of death with the knowledge that it probably would cause death. If you find that the defendants consciously intended to commit, attempt or assist another in the crime of robbery, you may infer that he knowingly created a very high risk of death with the knowledge that it probably would cause death." (Emphasis supplied.)
Defendant Reid has declined to file a motion with the trial court for an evidentiary hearing on this question. Since we are able to conclude that defendant was not denied effective assistance of counsel without resolving the question, we decline to remand for such a hearing. | [
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T. M. Burns, J.
Plaintiff appeals as of right a January 16, 1980, lower court order granting summary judgment in favor of defendant for the reason that no material issue of fact exists in this case. GCR 1963, 117.2(3). We reverse.
The facts of this case for the most part are uncontested. Plaintiffs decedent was an employee of Schoolmaster Plumbing and Heating. On October 31, 1975, he signed an application for group health and life insurance which had been offered to the employees of Schoolmaster by defendant. Plaintiff’s decedent’s application was accepted and the insurance went into effect on December 1, 1975, at which time he received a certificate of insurance setting forth the material provisions of the policy.
On January 13, 1976, plaintiff’s decedent was hospitalized for what was diagnosed as chronic congestive heart failure. In a letter dated July 16, 1976, defendant responded to plaintiff’s claim for benefits arising out of this health care treatment by denying any such benefits for the reason that plaintiff’s decedent had falsely answered questions on his application regarding whether he had consulted or been treated by a physician during the five years previous to the application. Defendant claimed to have obtained information disclosing that plaintiff’s decedent had consulted with and been treated by a physician on several occasions for "cardiac enlargement with evidence of pulmonary passive congestion” during the five years prior to his application for insurance. In the letter denying benefits, defendant enclosed a refund check for the amount of premiums paid and declared that the policy never became effective or, if it did, it was now rescinded because of plaintiff’s decedent’s false statements.
After defendant cancelled the insurance policy, plaintiff herself required medical treatment. Had the policy been in effect, plaintiff would have been entitled to benefits.
In April of 1977, plaintiff’s decedent died. Subsequently, plaintiff filed the instant action claiming benefits for her husband’s hospitalization and the medical care that she required and benefits under the life insurance portion of the policy as a beneficiary of her husband.
On April 24, 1979, defendant moved for summary judgment on the ground that it was entitled to judgment as a matter of law because there was no material issue of fact. Defendant’s motion was supported by the affidavit of defendant’s director of group claims. That affidavit states that defendant relied upon the representation of plaintiffs decedent that he had not been treated by a physician nor had he consulted with one in the five years prior to his application. The affidavit further states that had defendant known the true facts of plaintiffs decedent’s medical problems, the policy would never have been issued. Although plaintiff did not contest that her husband had received medical attention in the five years prior to his application for insurance, she stated in her affidavit that her husband did not know that he was suffering from congestive heart disease. She further answered defendant’s motion by alleging that defendant had breached its own policy provisions and that there was no intent to defraud, in which case a question of fact remained.
Following a hearing on defendant’s motion, the lower court filed an opinion in which it held that no genuine issue of fact existed because it was unnecessary to prove fraud in order to void the policy. Plaintiff now appeals.
Pursuant to the provisions of MCL 500.2218(1); MSA 24.12218(1):
"No misrepresentations shall avoid any contract of insurance or defeat recovery thereunder unless the misrepresentation was material. No misrepresentation shall be deemed material unless knowledge by the
insurer of the facts misrepresented would have lead to a refusal by the insurer to make the contract.”
In Dedic v Prudential Ins Co of America, 14 Mich App 274; 165 NW2d 295 (1968), this Court held that a false representation in an insurance application that the applicant had not seen a doctor in the five years prior to the application is presumed to be a material misstatement if the insurance company is prohibited from obtaining information about the nature of the applicant’s visits to a doctor and the diagnosis made by the applicant’s invocation of the physician-patient privilege. See MCL 500.2218(4); MSA 24.12218(4). As a test for determining whether a misstatement in an insurance application is material the Dedic Court held that a misrepresentation is material if it is such that the insurer would not have entered into the contract had it known the true facts. See also Woodall Industries, Inc v Massachusetts Mutual Life Ins Co, 483 F2d 986 (CA 6, 1973), Cartwright v Maccabees Mutual Life Ins Co, 398 Mich 238; 247 NW2d 298 (1976), Szlapa v National Travelers Life Co, 62 Mich App 320; 233 NW2d 270 (1975), Howard v Golden State Mutual Life Ins Co, 60 Mich App 469; 231 NW2d 655 (1975).
Thus, it appears clear that an insurer need not prove fraudulent intent in order to cancel an insurance policy where an applicant makes a material misstatement concerning his prior medical history. In this case, defendant’s motion for summary judgment was supported by an affidavit that stated that the policy would never have been issued had defendant known the true facts surrounding plaintiffs decedent’s health. Nonetheless, we believe that the lower court erred in granting summary judgment to defendant.
When interpreting insurance policies, this Court must construe them in accordance with the ordinary and popular sense of the language used therein. Michigan Mutual Liability Co v Mesner, 2 Mich App 350; 139 NW2d 913 (1966). Where portions of a policy are ambiguous, they must be interpreted in favor of the insured to uphold coverage. Shepard Marine Construction Co v Maryland Casualty Co, 73 Mich App 62; 250 NW2d 541 (1976). It is the duty of this Court to give insurance policies the meaning that the insured would reasonably expect. Zurich Ins Co v Rombough, 384 Mich 228; 180 NW2d 775 (1970).
Under a pertinent provision of the instant insurance policy that was captioned "General Provisions” defendant reserved to itself certain rights in the event that an application for insurance misstated certain facts:
"MISSTATEMENT OF FACT: If the age, sex, salary or any factor which effects the premium or insurance benefits under this policy for any Covered Person has been misstated, the premium or benefits, or both, shall be adjusted to conform to the true facts. The Company, however, shall not be liable for payment of benefits in excess of those which would be payable on the basis of the true facts and premiums actually received.”
The record reflects that the check that defendant returned to plaintiff’s decedent for the amount of premiums that he had paid was never cashed. Although defendant subsequently sent a check in the same amount to plaintiff’s decedent’s employer, there is no evidence that either plaintiff or her husband ever received any proceeds from this check. To that extent then, neither plaintiff nor her husband ever consented to defendant’s cancellation of the insurance and return of the premium paid.
Interpreting the above provisions of the insurance policy, we find that they do not permit cancellation of the policy in the event of a misstatement in the application. Rather, these provisions permit defendant only to adjust the premium or benefits under the policy in the event of a misstatement on the application. Construing these provisions strictly against defendant, we hold that the lower court erred in granting summary judgment to defendant. Defendant cannot void the policy where its provisions do not give it that authority.
To the extent that the statute relied upon by the lower court and by defendant would permit the voiding of a contract where an applicant has made a material misstatement of fact, we find that that statute and its provisions are not self-effectuating. That is, the statute permits, but does not require, an insurance company to void a policy where a material misstatement has occurred in the application. Inasmuch as defendant did not reserve to itself this power, it cannot rely upon this statute.
The lower court erred in granting summary judgment to defendant. Defendant was not entitled to void the policy. Rather, the only authority that is reserved to itself under the policy was to adjust either the premiums or benefits in the event of a misstatement of facts. As a consequence, we reverse the lower court order granting summary judgment and remand this cause for trial. | [
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Per Curiam.
Defendant was convicted, on his plea of guilty, of criminal sexual conduct in the first degree. MCL 750.520b(l)(a); MSA 28.788(2)(l)(a). He was sentenced, on the recommendation of defense counsel, to life imprisonment.
On appeal, defendant contends that he was denied the effective assistance of counsel. We agree. A guilty plea does not waive, for appellate pur poses, a claim of ineffective assistance of trial counsel. People v McDonnell, 91 Mich App 458, 460; 283 NW2d 773 (1979), lv den 407 Mich 938 (1979).
Prior to trial, defense counsel knew: that defendant, in 1968 while in the Army in Germany, had molested a child, that in 1969 defendant had been acquitted by reason of insanity of assault with intent to commit rape, that defendant had been hospitalized for treatment from 1969 to 1974, and that defendant was, at the time of this offense, on probation for breaking and entering and that the motivation for that crime had sexual origins. Moreover, defendant was, at the time of his plea, undergoing psychiatric treatment at the Veterans Administration Hospital in Battle Creek, Michigan, and was free on bond for the purpose of obtaining treatment.
With this knowledge, defense counsel never sought to obtain an opinion on defendant’s criminal responsibility nor did he tender a plea of not guilty by reason of insanity. We find from the record before us that counsel did not measure up to the standard put forth in People v Garcia, 398 Mich 250, 264; 247 NW2d 547 (1976), that defense counsel " 'must perform at least as well as a lawyer with ordinary training and skill in the criminal law * * People v Tumpkin, 49 Mich App 262; 212 NW2d 38 (1973), People v Bryant, 77 Mich App 108; 258 NW2d 162 (1977), McDonnell, supra.
Defendant’s prior child molesting charge and his conviction on a crime involving sex, his acquittal on the basis of insanity on another sex offense, and his previous and current hospitalizations for mental illness required, at least, an effort by defense counsel to have the defendant evaluated for criminal responsibility before counseling him to plead guilty to a capital offense. Moreover, even if we were to find that defense counsel was not incompetent under the Garcia standard, we would find that his error in failing to secure psychiatric evaluation was a serious mistake, but for which defendant would have had a reasonable likelihood of successfully interposing a valid and complete defense to the charge. People v Degraffenreid, 19 Mich App 702, 718; 173 NW2d 317 (1969), Garcia, supra, 266.
As the case must be remanded for trial or for further proceedings, we comment on the prosecution’s assertion that examination by the Forensic Center, which determined that the defendant was competent to stand trial, was a sufficient inquiry into the defendant’s sanity on the facts of this case. Such an argument is obviously fallacious.
A determination that a defendant is competent to stand trial is a finding that, at the time that the issue is presented, the accused understands the nature and object of the proceedings against him and that he is capable of assisting his defense in a rational manner. MCL 330.2020; MSA 14.800(1020).
On the other hand, an evaluation of sanity, which, on the facts before him, defense counsel should have undertaken, would place in issue whether the defendant knew that what he was doing at the time of the crime was right or wrong, and, if he did, whether he had the will power to resist doing the wrongful act. People v Martin, 386 Mich 407, 418; 192 NW2d 215 (1971).
Clearly, a determination that an accused is competent to stand trial is not equal to, or even suggestive of, the accused’s sanity at the time the crime was alleged to have been committed.
Reversed and remanded, with direction to appoint new counsel for the defendant. | [
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Per Curiam.
The parties were divorced on May 13, 1976, in the State of Massachusetts. Two children were born of their marriage, Philip and Nicole, whose ages at trial were 15 and 12, respectively. Pursuant to the judgment, custody was in the plaintiff-mother, who resided in Oregon at the time of the present proceedings. The defendant-father lived in Ann Arbor.
The parties’ minor children began living with defendant in the summer of 1979, pursuant to the parties’ agreement. It was also agreed by the parties that the children would resume living with the plaintiff in Oregon at Christmas. However, the parties subsequently agreed that it would be in the children’s best interests not to change schools during the school year and that the children would continue to reside with defendant until the end of the school year.
In February, 1980, defendant petitioned the court for a change of custody. At the conclusion of the hearing in October, 1980, the court ordered that custody be changed to the defendant and granted liberal visitation rights to the plaintiff. Upon denial of her motion for reconsideration, the plaintiff brought this appeal as of right.
The trial court’s findings of fact and conclusions of law are insufficient for this Court to review. This Court has stated on many occasions that the trial court must evaluate each of the factors contained in MCL 722.23; MSA 25.312(3) to determine the best interests of the child before deciding a custody dispute and that a conclusion on each factor must be stated. Dowd v Dowd, 97 Mich App 276; 293 NW2d 797 (1980), Troxler v Troxler, 87 Mich App 520; 274 NW2d 835 (1978), Lewis v Lewis, 73 Mich App 563; 252 NW2d 237 (1977). Furthermore, the trial court is required by GCR 1963, 517.1 to make definite findings of fact and to state its conclusions of law, a duty which extends to the determination and explicit consideration of each of the "best interests” factors listed in MCL 722.23; MSA 25.312(3). Id., 566.
The trial court acknowledged its duty to apply the best interests factors in determining the children’s best interests and did touch upon many of those factors in its findings of fact. However, MCL 722.23; MSA 25.312(3) and the cases cited above require findings and conclusions which are more explicit and complete than those on the record.
If the trial court’s failure to be more explicit and complete on each factor were the only problem, a remand for supplementation of the record would be the appropriate remedy. Since the judge may have also misapplied the "clear and convincing evidence” standard and improperly considered a fact in determining the children’s best interests, a remand for a new hearing is necessary.
MCL 722.27; MSA 25.312(7) provides:
"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 another action in a circuit court or another or [sic] judgment of a circuit court, 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 18 years of age. The court shall not modify or amend its previous judgments or order 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.”
It is not clear from the trial record if and in what manner the "clear and convincing evidence” standard was applied. Where one party has legal custody and the moving party has temporary custody pursuant to an agreement of the parties, the moving party must prove that a change of custody is warranted by clear and convincing evidence. Radway v Radway, 81 Mich App 328; 265 NW2d 202 (1978).
The transcript from the hearing leaves us with the impression that the trial judge concluded that there was no good reason to move the children since they were satisfied to live with their father and the parties were equal on the "best interests” factors.
It is clear from the record that the judge attached significant weight to the fact that the children were doing fine residing with the defendant and that it would be wrong to remove them from school. The children continued living with their father after Christmas pursuant to a voluntary arrangement so that they would not have to change schools during the school year. Once the school year ended, the children continued to reside with the defendant during the summer and into the next school year pursuant to an ex parte order pending resolution of the custody dispute.
While it is generally correct for the trial court to consider the desirability of maintaining continuity to protect the child’s best interest, the instant case fits within an exception to such a policy. This Court has held that where a parent temporarily and voluntarily relinquishes custody to protect the best interest of the child, such practice should be encouraged by returning custody to that parent. Dowd, supra.
The trial court’s decision appears to accept the continuity factor just mentioned as being adequate to constitute clear and convincing evidence of the propriety of a change in custody (the court having acknowledged neutral weight attaching to each of the other factors which it considered specifically). As a matter of logic and policy, we find this to be error. Taken by itself, and considering the circumstances of the instant case, the desirability of maintaining the status quo does not warrant a change in the custody order. Considering the precedent this decision would set, no parent who had official custody would be willing to agree to a temporary relinquishment of actual custody, even where all parties agree that such would be in the best interest of the child. We therefore are compelled to reverse the trial court’s decision and order a new hearing. We do not mean to preclude the continuity factor from the trial court’s consideration on remand, but, under the circumstances, more is required in order to warrant a change in the custody order.
Reversed and remanded for proceedings in accordance with this opinion. The hearing on remand shall be held within 60 days of the issuance of this opinion. We retain jurisdiction. | [
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Bashara, P.J.
Plaintiff appeals the trial court’s orders granting summary judgment to defendants on governmental immunity grounds, MCL 691.1407; MSA 3.996(107), and denying his motion to amend his complaint.
Danielle Everhart was a student at Patton Elementary School in the defendant Roseville Community School District. While at recess, she was struck and knocked to the paved playground by another student who was running. Danielle allegedly sustained serious injury, requiring surgical procedures now and in the future.
The trial court granted the school board’s motion for summary judgment, holding that the operation of a public school is a governmental function. We agree and affirm summary judgment granted to the school district on the authority of Churilla v School Dist for City of East Detroit, 105 Mich App 32; 306 NW2d 381 (1981), Smith v Mimnaugh, 105 Mich App 209; 306 NW2d 454 (1981), and Deaner v Utica Community School Dist, 99 Mich App 103; 297 NW2d 625 (1980).
Summary judgment was also granted to defendants MacIntyre and Maksym, the principal and "teacher in charge”, respectively. The proper standard for determining whether an employee is cloaked with governmental immunity is not well settled in Michigan. In Bush v Oscoda Area Schools, 405 Mich 716; 275 NW2d 268 (1979), the complaint alleged that the negligence of the school board, superintendent, teacher, and principal caused an explosion in a science classroom resulting in plaintiffs decedent sustaining severe burns. The Court found applicable the defective building exception to the governmental immunity statute, MCL 691.1406; MSA 3.996(106), and reversed the trial court’s order granting summary judgment for defendant school board.
More pertinently, the opinion, written by Justice Levin and joined by Justices Kavanagh and Fitzgerald, held that the complaint also alleged a valid cause of action against the individual employees. No reasoning was offered.
The remaining four justices filed separate opinions. Justice Moody dissented on the issue of the individual’s liability and would have held that the activities were discretionary functions that are the essence of governing which fall within the ambit of the governmental immunity statute. Chief Justice Coleman concurred in that portion of Justice Moody’s opinion.
Justice Williams filed a concurring opinion in which he stated that governmental immunity should be granted as to individuals performing a governmental function unless the action is ultra vires.
Finally, Justice Ryan dissented from the Court’s opinion holding the defective building exception applicable. He did not specifically comment on the issue of employee liability. However, he held that no cause of action existed, thereby implying that governmental immunity barred a claim against the individual defendants.
In summary, three justices held that the complaint stated a cause of action against the individual employees, one justice would have held that it did not, two justices would have held that the employees were engaged in a discretionary governmental function and were immune from liability for ordinary negligence, and one justice would have held that only ultra vires activities are not protected by governmental immunity.
Case law prior to Bush was also in a state of flux on the issue of individual liability of governmental employees. However, our review of the law leads us to conclude that the prevalent and correct standard is that stated by Justice Williams in Bush: Employee actions performed within the scope of a governmental function are cloaked with governmental immunity. See Galli v Kirkeby, 398 Mich 527, 543, 544; 248 NW2d 149 (1976), and Cook v Bennett, 94 Mich App 93; 288 NW2d 609 (1979) (Bashara, J., partial dissent).
The complaint alleges that the principal and teacher were negligent in the performance of their work functions. Specifically, it was alleged that the principal, MacIntyre, was negligent in the hiring of school ground supervisors and teachers and in the supervision of those employees. The teacher, Maksym, was allegedly remiss in not controlling the children while they were running on the playground.
The allegations clearly claim that the individuals were negligent in the performance of their discretionary governmental duties. No ultra vires acts are alleged. Consequently, under the test enunciated by Justice Moody or that suggested by Justice Williams in Bush, these defendants are protected by the governmental immunity statute. Summary judgment in favor of MacIntyre and Maksym is affirmed.
Plaintiff also alleges error in the trial court’s grant of summary judgment as to the allegation of nuisance. Plaintiff alleged that defendants intentionally and/or negligently created a nuisance by failing to hire and supervise competent personnel, instruct students on proper conduct, and warn students of the danger. Although the term "intentional” is employed in the complaint, it is clear that the specific allegations, at most, would establish a negligent nuisance in fact. Hence, the claim was properly dismissed. See Rosario v City of Lansing, 403 Mich 124; 268 NW2d 230 (1978), and Gerzeski v Dep’t of State Highways, 403 Mich 149; 268 NW2d 525 (1978).
Next, plaintiff challenges the trial court’s ruling denying his motion to amend the complaint to allege the playground was structurally defective. This claim would not be barred by the governmental immunity statute as an allegation of defective buildings, including playground equipment, is an exception to the immunity statute. MCL 691.1406; MSA 3.996(106), Bush, supra, Pichette v Manistique Public Schools, 403 Mich 268; 269 NW2d 143 (1978), Monfils v City of Sterling Heights, 84 Mich App 330; 269 NW2d 588 (1978).
The trial court considered the motion to amend the complaint after its opinion granting summary judgment on the original complaint had been issued but before the order had been entered. The court ruled that the motion to amend could not be granted unless plaintiff was in possession of information which he did not have at the time the original complaint was filed.
We agree with plaintiff’s assertion that the trial court used an improper standard in denying the motion. A request to amend the complaint should be granted freely where there is no showing of undue delay, bad faith, or dilatory motive. Ben P Fyke & Sons v Gunter Co, 390 Mich 649; 213 NW2d 134 (1973). Mere lateness in moving to amend is not a sufficient reason to deny the motion absent unfair prejudice to the opposing party. Rubino v City of Sterling Heights, 94 Mich App 494; 290 NW2d 43 (1979).
We find no such prejudice resulting to defendant school board in allowing plaintiff to amend his complaint, even after an opinion had been issued holding that the original counts were dismissed. Because the school board did not object to a failure to join all claims at pretrial or by motion, any claim arising out of the same transaction not included in the original complaint was not barred by the summary judgment. GCR 1963, 203.1. See Rogers v Colonial Federal Savings & Loan Ass’n of Grosse Pointe Woods, 405 Mich 607; 275 NW2d 499 (1979). No parties had been dismissed from the action when the motion was considered. Consequently, we hold that the trial court abused its discretion in denying the motion to amend the complaint.
Finally, plaintiff asserts that his motion to amend the complaint to add as parties defendant the two playground supervisors was improperly denied. We disagree. The allegations, if true, would establish that the supervisors were negligent while acting in the scope of their employment and, thus, immune from liability under the governmental immunity statute.
Affirmed in part; reversed in part. Remanded for further proceedings on plaintiff’s allegation of defective premises.
Costs to abide the outcome. | [
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Stone, J.
For’ a clear statement of the questions ■ and issues involved in this cause we here insert, in full, the opinion of the learned circuit judge who heard the case below:
“In this equitable action the complainants have filed a bill of complaint against the defendants to restrain them from the prosecution of a certain action at law for damages, brought by the defendant Wedthoff, as assignee of the other defendants, against the Pere Marquette Railroad Company. The complainants stand for the Pere Marquette Railroad Company which company succeeds to the rights of a railway company organized in 1867, which was succeeded by the Flint & Pere Marquette Railroad Company, the Flint & Pere Marquette Railroad Company being succeeded by the Pere Marquette Railroad Company. These various parties have a continuity of interest and succession of occupation, and will be described hereafter as the company, which term includes said companies and the complainants herein.
“The defendant George E. Wedthoff is a plaintiff in an action at law, as above stated, commenced by him on the 11th day of August, 1911, as assignee of the right of action of some 43 property holders owning property abutting on James and Jefferson streets in Bay City. These parties will be hereafter designated as the property holders. Mr. Wedthoff and the property holders filed an answer in the nature of a cross-bill to the said bill of complaint, contesting the complainants’ claims and asking that their claims for damages as abutting property holders be heard, determined, and assessed in this suit.
“James and Jefferson streets, in Bay City, were established as legal streets therein prior to 1866. In February, 1866, pursuant to proceedings before that had in the common council, the company was granted the right to construct, maintain, and operate its railway upon and along James street and Jefferson street to a point north of all of the land on said street owned by any of the defendants. The company commenced the construction of its railroad upon a right of way laid along the center of said James and Jefferson streets, and completed its construction of said railway going north to a point north of any of the land of the defendants on or prior to the 20th day of May, 1868, since which time until the present time the company has operated its railroad through the use of said track in and on said streets to carry on its railroad business, and during this time its track has been laid upon land of the property holders at the east or west sides thereof, as the case may be, to the extent of from three to five feet.
“As between the company and the property holders, and in respect to all of the property holders, the company on or before May 20, 1868, appropriated the described right of way in the center of the street upon their land, and since that time and up to the commencement of said suit, for a period of more than 42 years, it has occupied said right of way and maintained its track and operated its trains along’ the same, and for said period of more than 42 years prior to the commencement of said suit it has had actual, adverse, peaceable, open, and uninterrupted possession of said real estate, except as qualified by the city street use, and in that time has used its said track upon said right of way.
“The distinct claim of each of the defendants is for abuttal damages for the six years prior to said August 11, 1911, on the theory of the defendants that for prior years their claims are barred by the statute of limitations.
“This claim is valid, and the defendants are entitled to such damages, unless the company, either by grant or by prescription, prior to the time of the commencement of suit, acquired the legal right to the use of said right of way, or, in other words, acquired an easement upon the land of the property holders occupied by it.
“Preliminary to the statement of the main question in the case, it may be said in passing that it is an elementary principle of law that an easement may only be created by grant or by prescription, and that in law the grant of the right of way to a railroad company creates an easement on the land affected, and that an entry upon the land of another by a railroad company, followed by the construction and operation of a railroad upon such right of way, without first obtaining a grant therefor or taking such steps to condemn the land for such right of way, is an appropriation of the right of way such as to afford a right of action for abuttal damages commencing with the time of such appropriation.
“The controverted claims of the parties follow:
“(1) That it has paid for and obtained releases of the right of way from the property holders, and has a grant to said right of way.
“(2) That, if it did not obtain such grant, then prior to the time of the commencement of said action at law by the property holders, it had acquired a prescriptive easement upon and along the land covered by its track, and that therefore the property holders could not maintain its said action for damages.
“The property holders claim:
“(1) That the company has no grant of said easement.
“(2) That there can be no prescriptive easement acquired by a railroad company in a city street to defeat the claim of adjacent property holders for abutting damages.
“(3) That the company, not having acquired a grant or prescriptive easement, has been liable for continuing damages from May 20, 1868, during the whole of said period, and that the damages for that portion of said time, namely, 6 years, not barred by the statute of limitations, can be recovered in said action at law.
“It may be said in explanation of the two periods named, that the 15-year period is the period fixed by the statute of limitation affecting real estafe as being the time required to acquire by adverse possession easements and rights in real estate. The 6-year statute of limitations is that statute which precludes an action of damages, such as said suit at law, from being maintained for damages which accrued 6 years prior to the statute of limitations.
“Upon the disputed questions, I am constrained to hold that in this State an easement upon land for the operation of cars thereon in a public street may be acquired by prescription, and that the time for the acquirement of a prescriptive right commences to run from the time of the commencement of the appropriation of the right of way, where such right of way is appropriated; that as applied to this case, under the facts stated, such time commenced to run on the 20th day of May, 1868, and that the property holders’ right of action for abuttal damages was barred by the prescriptive easement of the company on the land long before the commencement of said suit at law.
“This conclusion is sustained by numerous well-considered cases decided by our Supreme Court commencing with Conklin v. Boyd, 46 Mich. 56 (9 N. W. 134), and concluding with Brockway v. Power & Light Co., 175 Mich. 339 (141 N. W. 693). These cases, either by express decision or by fair inference, decide that an easement may be acquired in real estate by fifteen years’ use under the necessary conditions in principle clearly covering railroad right of way easements in streets and in no manner excepting them from such rule. I make particular reference only to the case of Turner v. Hart, 71 Mich. 128 (38 N. W. 890, 15 Am. St. Rep. 243), which has been often cited and quoted from, the opinion in which is by Judge Champlin. In that case the court states the reason for the rule of prescriptive easements and the rule as to easement by prescription, as follows: In this State an easement founded upon prescription originates from the fact of actual, adverse, peaceable, open, and uninterrupted possession for such length of time that the law presumes that the true owner by his acquiescence has granted the easement, and that the time required to fix said (prescription) presumption is the period named by the 15-year real estate statute of limitations, and that this 15-year period commences at the time when the adverse user or occupancy commences.
“The property holders contend that their claim that no prescription for a railroad right of way can be acquired in a right of way in a city street in Michigan is supported by three Michigan cases, namely, Grand Rapids, etc., R. Co. v. Heisel, 38 Mich. 62 (31 Am. Rep. 306); s. c. 47 Mich. 393 (11 N. W. 212); Hoffman v. Railroad Co., 114 Mich. 316 (72 N. W. 167); Phelps v. City of Detroit, 120 Mich. 447 (79 N. W. 640).
“In my opinion that question was not presented to the court or passed upon in either of the above cases. In the first two cases the time for acquiring a prescriptive easement had not run before the bringing of the suit; in the third case I am advised that the defense made in the case was of the statute of limitations, as against the right to bring that action, and no defense of the prescriptive easement was made in the case. I can therefore not consider these authorities as sustaining the position contended for, and in any event would be constrained to hold that the greater weight of authority was with the line of decisions, above referred to, holding the other way.
“The company contends that it has proved that releases of right of way were given within some reasonable time after the construction of the railroad in the said streets. This contention is denied by the property holders. I do not consider it, for the conclusions above reached dispose of the case.
“A decree may be entered dismissing the cross-bill of the. property holders, and sustaining the bill of the railroad company, with costs to complainants.”
The defendants have appealed from the decree entered pursuant to the foregoing opinion.
In their brief defendants urge that complainants ought not to be granted the relief asked for, for the following reasons:
(1) That they have asked for and obtained a decree for an injunction, as against defendant George E. Wedthoff, directly contrary to the provisions of section 502, 1 Comp. Laws (4 How. Stat. [2d Ed.] § 12020).
(2) That they have wholly failed to produce proof of any payment to or settlement with the defendants or their predecessors in title, and the court will not presume payment in the absence of preponderating, or at least, some, proofs.
(3) That they have come into a court of equity, not to protect their rights to operate their railroad, which is not being questioned, but asking the court to prevent defendants from recovering actual damages inflicted, because of their negligence and carelessness. He who comes into equity must come with clean hands.
(4) That they are asking this court to declare a prescriptive right, founded, as shown by their own testimony, upon the operation of its road along a public highway without authority, contrary to the express provisions of law. The railroad, so far as being in the public street is concerned, has been a public nuisance from 1868 until 1899.
(5) That the permission of the council in 1899 is invalid until the railroad has made settlement with the property owners along the street, as provided by the only law in Michigan which authorizes a railroad to be built along a public street or highway.
(6) That to establish its prescriptive right the company asks this court, in effect, to_ set aside and reverse its rulings made in Grand Rapids, etc., R. Co. v. Heisel, 38 Mich. 62 (31 Am. Rep. 306), and 47 Mich. 393 (11 N. W. 212), and affirmed in Hoffman v. Railway Co., 114 Mich. 316 (72 N. W. 167); Wilkinson v. Dunkley-Williams Co., 139 Mich. 621 (103 N. W. 170), and Phelps v. City of Detroit, 120 Mich. 447 (79 N. W. 640).
(7) That they ask the first adjudication in the history of litigation that a railroad along a public highway, without authority, occupying not adversely or exclusively, but in common with the entire public, has acquired a title by prescription to injure and destroy defendants’ property without compensation, when complainants have had it in their power to have the damages for all times determined, and when defendants have never had and have no right now to determine or have fixed any of the damages for the future.
(8) That to grant the relief prayed for and given by the court would be, and is, to say to these defendants:
“Under our repeated decisions you have never had any right to bring suit for the damages that may accrue to you in the future; you have never had and could not have had a day in court for those damages. Because you have waived the past damages, you may not now recover the future damages.”
These positions are very strongly stated, and, if supported by the authorities, defendants ought to prevail here. We think, however, that the positions taken by defendants are not all warranted under the authorities, as we find them.
1. We have never understood that the provisions of section 502, 1 Comp. Laws, requiring a bond to be given to have injunction to stay trial of action in a court of law, applied to a permanent injunction issued by the decree of the court at the hearing. We had supposed that it referred to preliminary injunction, and such we think has been the understanding of the profession. Carroll v. Bank, Har. Ch. (Mich.) 197; Lawton v. Richardson, 115 Mich. 12 (72 N. W. 988).
2. It is the position of defendants that complainants have wholly failed to produce proof of any payment to or settlement with the defendants or their predecessors in title. We have read very carefully the entire record in this case, and are unable to agree with defendants’ position upon this point. The documentary evidence, taken in connection with the testimony, especially of the witness William Wéstover, shows strong circumstantial proof to the effect that appellants’ predecessors in title were actually compensated for the right of way. The evidence is very convincing that at least some of the parties, who are in the same category as those represented here, were compensated. We think at least a strong presumption of fact has been raised that all who were in like circumstances were alike dealt with. It may be said that no one of the details is individually controlling, but in combination they create a very strong presumption of fact.
8. In the light of this record we hardly know what counsel for defendants mean by their third proposi tion. Turning to the record, we find the following stipulation signed by the attorneys for both parties in the law case:
“That plaintiff claims no right to recover damages in this action for any misconduct or negligence of the defendant in the operation of its railroad, but merely for abuttal damages based upon the claimed occupation and use for railroad purposes of the highway in front of the above described premises."
Before the chancery case came on for hearing, a further stipulation was entered into between the parties, defining the main question at issue, and providing that it alone should be controlling. This stipulation is very broad, and wé quote only the following language, referring to the record for the remaining portion of the stipulation:
“In view of the fact that the proof of defendants’ damages will necessitate the taking of voluminous testimony, with a needless waste of time and expense in case it should thereafter be determined that no such damages are recoverable, and that it is to the interest of all parties that their rights in respect to ownership, use, and occupation of Jefferson street (hereinafter referred to as the main question) be finally determined before the taking of any proofs on the question of damages.”
The stipulation provides, then, for the taking of testimony with reference to the rights of the parties upon the main question and the submitting of those matters to the court for hearing and decree. An examination of the decree entered in the court below will disclose that it does not assume to restrain actions for any negligence of operation, past or future. The decree merely quiets, as to the defendants, the title to the Pere Marquette Railroad Company to a right of way down the streets in question, and provides against interference by defendants with the occupation of those streets as a right of way. We are unable to find anything in the decree that can be construed to prohibit actions arising out of past or future negligence of operation. Complainants assert, in their brief, that appellants are at liberty to commence any action which they see fit, based upon the ground of negligence or carelessness.
4. An examination of the record discloses that the railroad company constructed its road and has always operated it by permission of the public authorities of the city of Bay City. We are led to the conclusion that the permission granted was not only lawfully granted, but by the action of the council of the city has been renewed and affirmed and ratified upon numerous occasions. The important thing to be established is the existence of the municipal permission, not its validity; and even a tacit permission may be effectual, and in view of the operation of this road in the streets for upwards of 40 years with the consent and approval of the public authorities, and in view of the frequent and substantial contributions from the treasury of the company toward the maintenance of pavements, crosswalks, etc., many of them for the benefit of the abutting property owners, the claim that the railroad is, and always has been, a public nuisance cannot be sustained.
5. The consent of the abutting property owners has nothing to do with the validity of a public franchise as such. Even if the occupancy of the streets constituted a public nuisance, such occupancy would support an acquisition of prescriptive rights against individual abutting property owners. Courts of high authority have held that the rule against the creation of a prescriptive public nuisance must be limited to cases where the private person sustaining the injury, claims under and by virtue of the public right, and that a private nuisance may be prescribed for, notwithstanding the fact that it may be a public nuisance as well. See 21 Am. & Eng. Ene. of Law (2d Ed.), pages 733, 734, and the many cases there cited; Charnley v. Power Co., 109 Wis. 563 (85 N. W. 507, 53 L. R. A. 895). It follows, from the authorities above cited, that even if this railroad constituted a public nuisance (which is denied), that fact would not prevent the acquisition of a prescriptive easement as against the private damage claims of the abutting property owners.
6. We do not agree with counsel for the defendants in their sixth proposition, for the reason stated by the learned circuit judge in his opinion. The cases cited by defendants’ counsel can be readily distinguished from the instant case; and if the position of counsel is correct, the doctrine of prescriptive right to an easement must be held not to prevail in Michigan. The contrary doctrine has been too often asserted in this court to make it necessary to cite cases. The last one upon the subject is that of Walton Cranberry Co. v. Seamon, 171 Mich. 98 (137 N. W. 147).
7. As we understand it, all that the complainants ask in this case is a confirmation of the present right coextensive with its past user. That the abutting property owners had at all times prior to the ripening of complainants’ prescriptive title the right and power to test the validity of their claims, either by an injunction suit or by the commencement of an action to recover past damages either actual or nominal, is not questioned. What we do hold is that by sleeping on their rights, if they had any, for nearly 45 years, they have lost all ground of complaint.
8. The conclusion of the court below, in which we fully concur, is that the abutting owners (if their claims were originally valid) had for 15 years the right to bring suit for their past damages, and at the same time could have stopped future damages by injunction. But by sleeping upon these rights, while the complainants have been every day using the streets in question, they have lost any right which they might have exercised. The rule contended for by appellants would destroy the existence of everything in the nature of a prescriptive easement. This court has in many cases sustained the validity of prescriptive easements. The following additional cases are more or less in point upon this subject: Conklin v. Boyd, 46 Mich. 56 (9 N. W. 134); Ward v. Railroad Co., 62 Mich. 46 (28 N. W. 775, 785); Gregory v. Bush, 64 Mich. 37 (31 N. W. 90, 8 Am. St. Rep. 797); Cornwell Manfg. Co. v. Swift, 89 Mich. 503 (50 N. W. 1001); Hoag v. Place, 93 Mich. 450 (53 N. W. 617, 18 L. R. A. 39); Leidlein v. Meyer, 95 Mich. 586 (55 N. W. 367); Williams v. Barber, 104 Mich. 31 (62 N. W. 155); Wesson v. Tolsma, 117 Mich. 384 (75 N. W. 941); Moon v. Mills, 119 Mich. 298 (77 N. W. 926, 75 Am. St. Rep. 390); Chase v. Middleton, 123 Mich. 647 (82 N. W. 612); Oneida Township v. Allen, 137 Mich. 224 (100 N. W. 441); Bean v. Bean, 163 Mich. 379 (128 N. W. 413).
Under the authorities there is not the slightest doubt that a private nuisance may be legalized by prescription. See, also, 29 Cyc. p. 1206 et seq., and the numerous cases there cited.
The decree of the circuit court is affirmed, with’ costs to the complainants.
Brooke, C. J., and McAlvay, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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Stone, J.
The facts in this case are somewhat involved. On January 16, 1913, the title to the premises (consisting of 2% lots in Hunt & Leggett’s subdivision of certain lands in the city of Detroit) was in John W. Leggett. Mr. Leggett had previously given Justice R. Pierson an option to purchase said premises, which option would expire some time in March, 1913. While this option was in force, and on January 16, 1913, the agreement (Exhibit 2) was made by Justice R.. Pierson with Jacob Shewitz, as follows:
“Memorandum of agreement, made and entered into this 16th day of January, 1913, by and between Justice R. Pierson and Bessie L. Pierson, his wife, parties of the first part, and Jacob Shewitz, party of the second part, all of the city of Detroit, county of Wayne, and State of Michigan.
“Said parties of the first part agree to sell and said party of the second part agrees to buy the property situated and being in the city of Detroit, county of Wayne, and State of Michigan, to wit: Lots two hundred forty-seven (247), two hundred forty-eight (248), and the east twenty (20) feet of lot two hundred forty-six (246), Hunt & Leggett’s, subdivision of the south half of the south half of quarter section twenty-four (24), ten thousand acre tract, Hamtramck, being on the northwest corner of Harmon and Oakland avenues, as recorded in Liber ten (10), page 40 of Plats.
“The purchase price to be three thousand and fifty ($3,050.00) dollars, payable as follows: One hundred dollars ($100.00) upon the date hereof, the re ceipt of which is hereby confessed and acknowledged by the parties of the first part; four hundred ($400.00) dollars upon the examination of a Burton abstract of title, brought down to date, showing good and merchantable title in said vendors, and upon the execution of a Union Trust form land contract, the balance of two thousand five hundred and fifty ($2,550.00) dollars in semi-annual payments of one hundred ($100.00) dollars or more each, and interest at the rate of six (6%) per cent, per annum, payable semi-annually, the full purchase price to be due and payable on or before three (3) years from the date of said land contract.
“Said parties of the first part hereby sell the above-described property free and clear of all and any restrictions, and further agree to obtain a quitclaim deed from John W. Leggett and Grace F. Leggett, his wife, releasing the property from the following restriction, to wit:
“ ‘That no saloon or store shall he erected on said premises or that no dwelling house of the value of less than fifteen hundred dollars or less shall he erected fifteen feet from the street line upon said premises within ninety-nine years from the date of a certain warranty deed given by the said Leggetts to Charles H. Green and William W. Snyder, to wit, September 21, 1895.’
“Said party of the second part agrees to pay parts two, three and four of the Harmon avenue paving tax, due in the amount not exceeding two hundred and fifty ($250.00). dollars.
“Said parties of the first part are hereby given the privilege of mortgaging the above-described premises in any amount not exceeding fifteen hundred ($1,500.00) dollars. Deal is to be completed and consummated within thirty (30) days from date thereof. Possession to be given immediately upon said consummation.
“In witness whereof, the parties hereto have hereunto set their hands and seals at the city of Detroit this day and year first above written.
“Justice R. Pierson. [L. S.]
“Jacob Shewitz. [L. S.].”
About March 1, 1913, Pierson exercised his option with Mr. Leggett, paid the amount named in the op tion, and took a warranty deed of the premises to himself and wife. On the same day Pierson and wife sold and joined in a deed conveying the property to Harry R. Solomon for $8,375; the latter assuming a $1,500 mortgage which Pierson had given to the bank. The contract between Pierson and Shewitz was placed on record in the office of register of deeds, after the deed from Leggett to Pierson and wife was recorded, but before the deed from Pierson to Solomon was recorded.
On April 24, 1913, Solomon filed a bill of complaint in the Wayne circuit court, in chancery, against defendant Shewitz, claiming to be a bona fide purchaser for value by deed from said Pierson and wife of said premises, and that said agreement above set forth was of no force, and to have the said agreement between Pierson and Shewitz declared to be a cloud upon his title, and to have the same declared null and void, and discharged of record.
The defendant Shewitz filed a petition to the end that Justice R. Pierson and Bessie L. Pierson be made parties cross-defendants in said cause, and that process issue to bring them in. The petition was granted, and said parties were brought in. Thereupon said defendant Shewitz answered the bill of complaint, among other things, denying that complainant Solomon was a bona fide purchaser for value of said premises, and claiming the benefit of a cross-bill against said Solomon and Justice R. Pierson and Bessie L. Pierson. He set up his said agreement with said Pier-son, stated that he paid the $100 therein specified; that early in February, 1913, he informed said Justice R. Pierson that he was ready to carry out his part of the agreement, and instructed his attorney to prepare the necessary land contract and have the same in readiness for its execution, and arranged with said Pierson to close the transaction at a time and place named; that said Pierson appeared, and said defendant and cross-complainant made a tender to said Pier-son of the $400 provided for in the said agreement, but that said Pierson refused to sign said contract, claiming that he desired a short delay to perfect a mortgage before closing said deal, unless cross-complainant desired to pay the entire purchase price in cash; that cross-complainant consented to a delay of a couple of weeks in order that said mortgage might be perfected, but since that time, although frequently requested, said Pierson had at all times refused to carry out his part of said agreement; that on March 3, 1913, cross-complainant, having heard that said Pierson was attempting to sell said property to some one else, made an affidavit confirming the purchase aforesaid, and attached the same to the original agreement, and had the same recorded on the 4th day of March, 1913, at 9:30 a. m. in the office of the register of deeds of said county; that at that time there was no change in the record title which might have affected his interest; that he was informed and believed that said Solomon had knowledge of the contract between cross-complainant and said Pierson, when he purchased said premises, but that said Solomon claimed and considered cross-complainant’s interest in said property as an expired option, which was not the fact; that any interest which the said Solomon obtained by virtue of the deed mentioned in his bill of complaint was subject to the rights of this cross-complainant, by virtue of said agreement; that the deed from said John W. Leggett and wife to said Pierson and wife was recorded March 4, 1913, at 9:45 a. m.; that said cross-defendant Bessie L. Pierson had no interest in said property other than her dower interest. The cross-complainant prayed that it might be decreed that the said deed from said Pierson and wife to said Solomon be held void and of no effect as to said cross- complainant, and that said Solomon be decreed to quitclaim any interest he may have obtained to said property to said Pierson and wife, and, should said Solomon refuse so to do, that said decree might have the effect and force of a quitclaim deed; that it be decreed that said Pierson and wife specifically perform said agreement above set forth, and execute the proper conveyance to said cross-complainant, upon the payment of the balance in full of the purchase price of said property in accordance with the terms and conditions of said agreement; and that it may be decreed that said Pierson and wife deliver to cross-complainant a Burton abstract of title, brought down to date, showing a good and merchantable title in themselves, free and clear of all. liens and incumbrances, and that, in default thereof, cross-complainant be allowed a sufficient amount to have such abstract made. There was also a prayer for general relief.
The said complainant Solomon, as cross-defendant, and the said Justice R. Pierson and Bessie L. Pierson, cross-defendants, answered said cross-bill reiterating the allegations of the bill of complaint, and denying that said cross-complainant had any interest in said property, and denying most of the allegations of the cross-bill. The answers admit, however, that defendant Bessie L. Pierson, at the time of answering, had no interest in said property, but claim that on January 26, 1913, she and her said husband became owners in the entirety of said property.
The case, being at issue as to all of the parties, was heard upon testimony taken in open court. Complainant Solomon, among other things, testified as follows on his direct examination:
“I learned of the existence of an alleged claim of the defendant on this property the day I made the first payment of $200,- on the 27th day of February. Mr. Pierson, from whom I purchased the property, told me he had given a sort of option to the defend ant, whom I had never seen and did not know, but that the option had expired; that he had asked the defendant to live up to this particular option, but he refused to do so, and he was at liberty to dispose of it. * * * Mr. Pierson explained it to me very thoroughly. I bought the property and accepted the deed in good faith, and paid my money for it. * * * I left the deed with the bank on Saturday, the 1st day of March, the day that the mortgage was put on there by Mr. Pierson in the bank, and Mr. Borgman suggested that I leave the deed with him so that he would put the mortgage on record before the deed went on record. I know from examination of the record that Mr. Pierson came into possession of the title the day he transferred it to me.”
On cross-examination complainant Solomon testified, in part, as follows:
“About the same time I paid the $200 I heard about the contract between Pierson and Shewitz. I had not departed from the place; it was right there at the time of the transaction. Mr. Pierson brought it up. I do not remember, before or after the paper was signed, but it did not make any difference to me whether it was signed before or afterwards, or whether I had knowledge of the fact that there had been a paper existing before I signed the paper, but relied upon Mr. Pierson’s explanation. He stated to me that some man by the name of Shewitz had been given an option on this property, and that the option had expired a week or ten days before, and that Shewitz did not live up to his part of the agreement. * * * I don’t know what Shewitz had agreed to pay for the place, but Mr. Pierson had told me approximately the same amount I was to pay. I never made any attempt to see the paper that was signed by Shewitz and Pierson, and I never made any attempt to find out who the man Shewitz was, as I did not think there was any occasion to, either before I paid the $200 or afterwards. I did not care what sort of paper he had. I was willing to rely upon Mr. Pier-son’s word, irrespective of what papers were signed by the parties. I took Mr. Pierson’s word for it. Mr. Pierson said it was an agreement, but that it had ex pired. The deal was closed the 1st day of March. sfc * *
“Q. Who paid for the expense of this litigation, you or Mr. Pierson?
“A. Why, at the time Mr. Pierson tendered the $100 back to Mr. Shewitz, he refused to take it, and Mr. Pierson wanted to return the money, and he refused to take it, and he said he would turn it over to his attorney. Mr. Pierson had given a warranty deed, and he stated he would be willing to clear up the matter.
“Q. The suit was primarily in your name, but Mr. Pierson’s proceeding?
“The Court: That is the inference I will have to draw.
“A. It was not part of my understanding and agreement with Mr. Pierson that I would buy the property with the understanding that Mr. Pierson would clear up the defect, as he claimed. I did not consider that there was any defect, and, as soon as I found out that the contract had been placed on record, I took it up with Mr. Pierson.”
Justice R. Pierson was sworn as a witness for complainant. He testified that he did not own the property on January 16,1913, but had an option on it from Mr. Leggett, the record owner. That witness subsequently acquired title jointly with his wife, and sold it to Mr. Solomon. On cross-examination he testified as follows:
“The option was given to me personally, but I did not take the deed in my own name because Mrs. Pier-son was furnishing some money to finance it, and the deed was made jointly. It was just a question of turning the property from Leggett over to Solomon, and it would not have made any difference whether it was in my name alone, as I lost all interest in the property as soon as it was sold to Solomon. I did not have a land contract, though I told Mr. Shewitz I had a contract from Mr. Leggett, and that the deed would have to come from Mr. Leggett in the form of a quitclaim, for he would not make a warranty deed and release the restrictions that were on the property at that time. * * * The contract or agreement with Shewitz had expired before I had an opportunity to sell it for cash. My option was a 90-day option for $1,710 describing the property to be sold for cash, in which I had 90 days to accept, and which privilege I took advantage of. I did not take advantage of the option until Mr. Shewitz’s option had expired, but I took advantage of it within the three months. * * *”
This witness further testified that, at the time' he made the contract with Mr. Shewitz, the option from Leggett was in his name; that, under the terms of the contract, he was to get a release of the restrictions, but he never made a tender of it to Mr. Shewitz, and never got it until after his (Shewitz’s) option had expired; that he got the deed from Mr. Leggett, including the release, and did hot make a tender to Mr. Shewitz after his option had expired; that he never submitted a contract and asked him. for money; that witness asked Mr. Shewitz if he was ready to carry out the deal, and he said he was not; that witness never gave notice of forfeiture, except by oral statement that the time was up, and he would not go ahead with the deal. Witness denied that Mr. Shewitz told him that he (Shewitz) was ready to close the deal, and he denied that Shewitz ever made him any tender at all.
Jacob Shewitz testified that he saw Mr. Pierson five or six times during the deal, and that he (Shewitz) was always ready to consummate his part of the deal at any time when the restrictions were removed; that he made a tender of the $400 to Mr. Pierson, but thought it was after the 30 days; that Pierson asked for an extension, and said he could not take that much money; that witness, should try to raise more money. Shewitz was corroborated by another witness as to the tender of the $400.
The trial court entered a decree in favor of complainant Solomon, holding that the agreement of January 16, 1913, was null and void and a cloud on the title of complainant, and that Shewitz deliver up the said instrument to be canceled, and that said Solomon was the owner of said land in fee simple by a title perfect as against said Shewitz, and costs were awarded to complainant. Shewitz has appealed.
We have read the entire record with much care, and are of opinion that the above-quoted instrument between Justice R. Pierson and Jacob Shewitz was not an option, as appears to have been claimed by Pierson, but was an executory land contract, valid and of binding force as to the parties thereto. Pier-son had the legal right to make such contract. We do not think that time was of the essence of the contract, and we are of opinion that such contract was in force at the time of the purchase of said premises by complainant Solomon.
By a preponderance of the evidence it appears that Shewitz had not forfeited his rights under such contract, but had made the tender claimed by him, and that complainant Solomon had notice of the existence of such contract at the time of his purchase, or at least sufficient notice to put him on inquiry as to Shewitz’s rights, and that Solomon was not a bona fide purchaser of said premises for value before notice.
Justice R. Pierson could not legally ignore his contract with Shewitz, and take a deed to himself and wife, to the. prejudice of Shewitz. He was precluded by his contract from so doing. In so far as he was concerned, the transaction should stand as though the deed had been made by Leggett to him. The right of Mrs. Pierson, then, would be an inchoate dower right in the land. She, never having joined in the contract with her husband to Shewitz, cannot be compelled to release her dower in the land. It is well settled in this State that the wife cannot be compelled to release her dower in lands which her husband has contracted to sell, and she is not a proper party to a bill by the purchaser for specific performance. Weed v. Terry, 2 Doug. (Mich.) 344 (45 Am. Dec. 257); Richmond v. Robinson, 12 Mich. 193; Buchoz v. Walker, 19 Mich. 224; Phillips v. Stauch, 20 Mich. 369.
The evidence in the instant case fails to show that Mrs. Pierson had any notice or knowledge of the contract with Shewitz, when the deed was made by Leggett. Had she had such notice or knowledge, she would have been a proper party. Daily v. Litchfield, 10 Mich. 29.
In Walker v. Kelly, 91 Mich. 212 (51 N. W. 934), specific performance, subject to the dower rights, was given, where the wife was not a party to the contract; the decree providing for compensation to complainant for present value of such contingent right of dower. However, it has frequently been held that the jurisdiction of a court of equity to decree the specific performance of contracts is not a matter of right m the parties to be demanded ex debito justitiss, but applications invoking this power of the court are addressed to its sound and reasonable discretion, and are granted or rejected according to the circumstances of each case. Specific performance is frequently refused, although the defense is not such as would warrant the rescission of the contract at the suit of the defendant. 36 Cyc. p. 548, and note; Rust v. Conrad, 47 Mich. 449-454 (11 N. W. 265, 41 Am. Rep. 720), and cases cited; Chicago, etc., R. Co. v. Lane, 150 Mich. 162 (113 N. W. 22).
We think there are cogent reasons why specific performance of the Shewitz contract against defendant Pierson alone, with an abatement for the present value of the wife’s dower interest, should not be decreed. One reason is that it changes the contract between the parties, and another is that it compels the vendee to accept an imperfect title, which he had not in mind when he agreed to purchase. See cases cited in Kuratli v. Jackson, 60 Or. 203 (118 Pac. 192, 1013, 38 L. R. A. [N. S.] 1195, Am. & Eng. Ann. Cas. 1914A, 203).
We are of opinion that the circuit court erred in holding that the agreement of January 16, 1913, was null and void, and in ordering the same to be delivered up and canceled. We think, however, that Jacob Shewitz should be denied relief here, and should be relegated to a court of law for any relief in damages to which he may be entitled. His cross-bill will be dismissed, without prejudice to his right to sue at law for damages. The bill of complaint of Solomon will also be dismissed, and the decree below reversed, with costs to defendant Jacob Shewitz against Solomon. The defendant Bessie L. Pierson will recover her costs to be taxed against Shewitz.
Brooke, C. J., and McAlvay, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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Moore, J.
This suit is on a written contract between the plaintiff company and various lumbermen in Manistee and vicinity who had been lumbering on the Manistee river for a number of years. The purposes of the plaintiff company and certain portions of the contract which is the subject matter of this litigation are stated in the opinion of this court in the case of Manistee Navigation Co. v. Sands Salt & Lumber Co., 174 Mich. 1 (140 N. W. 565), which case was reversed and sent back for a new trial.
The plaintiff company, on the 23d day of June, 1905, entered into a contract with the defendant company and the other named log owners, who had been driving logs on the Manistee river for a great many years, for the purpose of raising, driving, and delivering the sunken and deadhead logs in the Manistee river to the mills of the various log owners for a price agreed upon between them, as appears in the contract. The plaintiff built and equipped two scows with hoisting machinery in 1905, and began its work of lifting the logs under the contract that fall. During- the season of 1906 four more scows were built, and in the season of 1907 two more scows were put in operation, making in all eight. In 1908 two were burned by the forest fires which prevailed that year, and they were not rebuilt. So in 1909 six scows were operated.
The logs lifted in 1905, which were sufficiently dried out for that purpose, were driven down the river and delivered in the summer of 1906, and after 1905 logs were lifted and a drive was made each year, including 1909, when the plaintiff, in the fall of that year, ceased its operations, owing, as it claims, to the continued failure and refusal of the defendant and the other parties to the contract to pay it the balance of the contract price for logs delivered that year and prior years.
A verdict was had in the instant case for the plaintiff in the sum of $1,219.54, judgment being had thereon, and the case is brought here by writ of error. The questions raised by the 73 assignments of error have been conveniently grouped by counsel for appellants as follows:
(1) The court erred in refusing to allow the defendant to prove that the plaintiff company had never received a dollar from its stockholders, to whom its certificates of stock were issued without consideration, and that said company was without financial standing, as bearing upon the question of the plaintiff’s right to maintain its suit upon this executory contract on the -claimed breach of contract by defendant for its failure to pay the bill against it of December 2, 1909, found in the record at pages 62 and 63.
(2) The court erred in the admission of evidence and in permitting the jury to render a verdict for plaintiff for interest charged against the defendant on claimed balances, which included damages, and without any previous demand having been made therefor.'
(3) The court erred in permitting evidence to be introduced, over defendant’s objection, as to the meaning of the words “fair and equitable scale according to Doyle’s rule,” as contained in said con tract, and in submitting said question to the jury to be determined by them as a question of fact.
(4) The court erred in receiving evidence and in allowing the jury to render a verdict in excess of the amount shown by the boom company’s scale and the inspection agreed upon under the contract, without showing any fraud or gross mistake in such agreed scale or inspection.
(5) The court erred in its ruling that the defendant’s failure to pay the bill of December 2, 1909, constituted a breach of .the contract sued upon,_ when the undisputed evidence shows that both plaintiff and defendant then knew that, through plaintiff’s fraudulent conduct, said bill was largely in excess of the amount due (if anything was due) from plaintiff to defendant.
(6) That, the evidence being undisputed that the plaintiff was guilty of frequent and continuous breaches of this executory contract, the court erred in permitting the plaintiff to sue and recover under the express terms of the contract, for the money claimed to be due thereon from the defendant to the plaintiff.
(7) That the court erred in permitting the plaintiff to abandon this executory contract in 1909 (which by its terms was not to be completed until September 1, 1913), and to sue and recover on said contract the contract price for said work after the contract had been breached and abandoned by the plaintiff.
(8) The court erred in rulings regarding evidence, and should have directed a verdict in favor of the defendant, for the reason that no evidence was introduced in the case showing or tending to show the value to the defendant of the services claimed to have been performed by the plaintiff under the contract, or the value of the benefit the defendant had received therefrom, and that there was no basis for a verdict of the jury in favor of the plaintiff and as against the defendant, as it was undisputed that the contract had not been fully performed and completed by the plaintiff, but that it was in default.
I. This very question was raised in the case of Manistee Navigation Co. v. Salt & Lumber Co., supra, on proper assignments of error, but this court did not discuss it in the opinion therein filed. We did not then consider, nor do we now, that the refusal of the court to allow inquiry into the financial condition of the plaintiff company was error, for the reason that it was not material or prejudicial to the defendant’s rights.
II. With reference to the question of interest raised under this heading, it appears that the contract provides in terms as follows:
“On the 10th day of each month payment to be made for all logs delivered to the respective mills of the said parties of the second part during the preceding month, less any amount that may be due said second parties by reason of the advance money above mentioned.”
It thus appears that the contract itself expressly . fixes the time when the delivery charges shall be paid, which debt becomes due on the 10th of each month for the deliveries made during the preceding month. Under the terms of the contract, the plaintiff company was entitled to the payment of the money when due, and the general rule of law is that when there is a contract to pay money at a certain time, and the money is not paid when due, interest is recoverable on the amount in default from the date when it should have been paid. 22 Cyc. p. 1539.
Ill and IV. The contract also provides as follows:
“It is further mutually understood and agreed that all logs scaled under this contract shall be scaled by scalers mutually agreeable to the parties hereto; said scalers to make in all cases a fair and equitable scale, and according to ‘Doyle’s rule,’ and all logs delivered to said second parties’ mills are to be scaled by the scalers employed by the Manistee Boom Company; it being understood and agreed that, in the absence of said boom company scalers, then the same are to be sealed by scalers mutually agreed upon between the parties hereto, all logs scaled at the mills to be done without expense to said first party. The scalers employed to scale the logs, when taken out of the waters, flats, or bayous of said stream and its tributaries, are to be paid one-half by each of the parties hereto; said first party to board said scalers .without cost or charge to said second parties.”
It is the contention of defendant’s counsel that “said scalers” referred to in this clause of the contract were the scalers that were to make the up-river scale, as the other scalers were agreed upon by the parties in -the contract itself and were to be the boom company’s- scalers, and that therefore the fair and equitable scale provided for referred only to the up-river scale. We do not agree with this construction of the contract, but think it is very clear and evident from the language that it was the intent of the parties that the fair and equitable scale under Doyle’s rule was to apply to all logs scaled under this contract, and that the said scalers were to make, in all cases, a fair and equitable scale under Doyle’s rule. If it had been the intention of the parties to have limited the fair and equitable scale to the up-river logs upon which the advances were to be made, they could have easily expressed that intention in the clause itself. No other scale is mentioned in the contract but a fair and equitable scale under Doyle’s rule, and in our opinion it would do violence to the language of the contract to construe it to mean that a different scale than a ¿air and equitable one was to apply to the logs delivered.
It is the contention of the defendant that a merchantable scale should be held to apply to the logs delivered, as it was the customary one in use in that vicinity at .the time of the making of the contract. The difference between these two scales is commented upon by this court in the case of Manistee Navigation Co. v. Salt & Lumber Co., supra, where considerable testimony was received as to these two methods of scaling logs. The trial court, in determining to leave to the jury the question as to what the words “fair and equitable scale under ‘Doyle’s rule’ ” meant in the contract here under consideration, gave his reasons as follows:
“Touching the question of the words ‘fair and equitable’ and ‘by Doyle’s rule,’ as contained in the contract, in view of the testimony on the record, the undisputed fact that, when complaint was made of the log scale, the parties got together and made a supplemental contract which gave the plaintiff a larger scale than they had been getting, and particularly in regard to the testimony, and in view of the fact that the ‘merchantable scale’ was the recognized scale in this locality — that it is conceded to have given less than the actual contents of the logs in many cases; the testimony of some witnesses that the plaintiff objected all the time to having the logs scaled ‘merchantable,’ and the further testimony, such as it is, that an understanding between all the log owners, including the defendant in this case, was had before and at the time of the execution of the contract, and as to what the words ‘fair and equitable’ and ‘by Doyle’s rule’ should mean, and the dispute on that question, I will leave that to the jury to say what these words mean in this contract.”
In view of the record thus, made, we are of the opinion that it was not error for the judge to leave this question to the jury.
V. In the Sands Case, supra, the so-called several breaches of the contract by the plaintiff were the same as in the case at bar. A statement or demand of December 2, 1909, similar to the one in this case, was in evidence in that case, different only in the amounts therein stated; and it is clear from a reading of the opinion that this court recognized the right of the plaintiff to sue the defendant on this contract under the same circumstances, and also recognized and affirmed the right of the defendant to set off and recoup his damages, if any, for the plaintiff’s alleged breaches of the contract. So far as the statement or bill of December 2, 1909, is concerned, it contained only the balance of the contract price due for the delivery of logs the defendants had received, and no contention can be successfully made that the statement contained any illegal or wrongful charges.
VI, VII, and VIII. In the consideration of the points made by counsel for appellant under these headings, the construction of the contract given by this court in the Sands Case, supra, must be borne in mind. It is contended that no action should be permitted on the contract because of the alleged breaches thereof by the plaintiff, and authorities are cited which hold that, where a party fails to comply substantially with an agreement, he cannot sue upon it, but that under the present doctrine he may recover upon the quantum meruit, based on such benefits as may have accrued to the other party by part performance. To sustain this contention, the early case of Allen v. McKibbin, 5 Mich. 449, 454, is cited and commented upon, in which this court, speaking through Mr. Justice Campbell, said:
“Where a party fails to comply substantially with an agreement, unless it is apportionable, the rule is well settled that he cannot sue upon the agreement or recover upon it at all. And under the strict common-law rule he was remediless. But the doctrine has now grown up, based upon equitable principles, that where anything has been done from which the other party has received substantial benefit, and which he has appropriated, a recovery may be had upon a quantum meruit, based on that benefit. And the basis of this recovery is not the original contract, but a new implied agreement, deducible from the delivery and acceptance of some valuable service or thing.”
It will be noted that this opinion limits the doctrine therein announced to contracts which are not apportionable. It is necessary, therefore, to determine whether the contract here involved can be said to be an entire and unapportionable agreement. Beach, on the Modern Law of Contracts, says:
“A familiar and well-settled principle of the common-law is that an entire contract cannot be apportioned. The good sense and reasonableness of the particular case must always guide and govern courts in determining whether a contract is divisible or entire. The question depends, to some extent, upon the intention of the parties, and this must be discovered in each case by considering the language employed and the subject-matter of the contract. No precise rule can be laid down for the solution of the question. When the price is expressly apportioned by the contract, or the apportionment may be implied by law to each item to be performed, the contract will generally be held to be severable.” Section 731.
According to 2 Elliott on Contracts, § 1543, the authorities generally hold that the question whether a contract is entire or several depends largely upon the intention of the parties.
In our opinion, there can be no doubt as to the severability of this contract. It provides, in terms, that:
“On the 10th of each month payment (is) to be made for all logs delivered to the respective mills of said parties of the second part during the preceding month, less any amount that may be due said second parties by reason of the advance money above mentioned.”
We are of the opinion that, as the logs were delivered, so much of the contract was performed, and on the 10th of the month a certain amount became due and payable to the plaintiffs. It is quite apparent from the contract itself, and from this record, that this provision in the contract was placed therein so that the plaintiff company might receive the necessary funds to carry on its operations as the work progressed, and it is the plaintiff’s claim that the failure of the defendants to pay the amount claimed to be due would and did result in serious embarrassment to it in the prosecution of the work.
It is true that there was a misunderstanding between the parties as to the construction of the contract in regard to the advances which were made on the up-river scale, but this question was definitely determined against the contention of the defendant by this court in the Sands Case, supra; it being held that the millmen could deduct only the advances from the contract price due on the logs delivered. And this construction must be said to bind the parties from the inception of the contract. This disagreement as to the construction of the contract led to negotiations between the parties, and resulted in an advance in 1908 by the log owners to the plaintiff of $15,000, without prejudice to the claims of either of the parties. (This is discussed at some length in the Sands Case.) But in 1909, upon the failure on the part of the defendants to pay the amount claimed to be due for logs delivered, the plaintiffs refused to proceed further under the contract until such amounts claimed to be due were paid, which immediately resulted in the litigation and the construction of the contract by this court in the Sands Case.
As we have concluded that the contract is an apportionable one, in our opinion it follows that the plaintiff had a right to bring suit for the amount claimed to be due in 1909 for logs delivered; and the defendants, having pleaded the general issue and having given notice of set-off and recoupment, had the right to show that they had overpaid the plaintiff for logs raised and skidded, and set off the excess against the amount due the plaintiff, and also to show breaches of the contract by the plaintiff and recover their damages, if any there were. These questions were questions of fact, and were submitted to the jury with proper instructions.
Being satisfied that the case was tried without prejudicial error, we affirm the judgment of the court below.
Brooke, C. J., and McAlvay, Kuhn, Stone, Ostrander, Bird, and Steere, JJ., concurred. | [
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] |
Moore, J.
In August, 1911, the defendant began to clear a location for iron ore operations. On December 7, 1911, it began to sink a perpendicular shaft to reach the ore body. It was necessary to sink the shaft to a depth of 175 feet before starting the first level. The plaintiff began work as a pumpman in the shaft about February 1, 1912. He claims to have been injured about February 14, 1912, while trying to climb out of the shaft. It is to recover damages for these injuries that he brought this suit. The plaintiff was a miner of about 14 years’ experience in Iron and Gogebic counties, and during that time had assisted in sinking about half a dozen shafts. The construction of the shaft began by laying on the earth four hanging pieces from 30 to 40 feet long, and from 2 to 2% feet square; two running at right angles with the other two, which formed an opening 10 feet by 12 feet. Under the long timbers, and close to them, are bolted one set of timbers 12 inches square. The sets were 4 feet apart in the clear. As the shaft was being sunk, as soon as. there was room a set would be put in and fastened by hanging bolts. On the back of these 12-inch timbers 2-inch strips were nailed. On these strips were placed back lath, almost 5 feet in length, which are 2-inch tamarack plank, to keep the earth from falling into the shaft, and in order to keep the back lath in place blocking and wedges were used to make the back lath as tight as possible. It was the duty of the men working in the shaft to keep constant watch of the shaft, and, when there was any indication of caving behind the back lath, to make immediate investigation and block or wedge the back lath whenever they were found to be loose. When the shaft reached the quicksand, at a depth of about 55 feet, water began to accumulate, and it was necessary to install a pump, which was placed on a platform on the east end of the shaft. The plaintiff helped install this pump. The pump was on a platform. As the shaft was sunk, the suction to the pump would become too short and the platform would be lowered. Until the bearing pieces were put in at 97 feet, there was no ladder road in the shaft. The plaintiff describes a ladder road as follows:
“It is made of wood and put in straight up and down and is fastened with staples or nails and runs from the surface down to the bottom.”
There was no bell line in the shaft, but there were means of signaling the engineer from the tube by striking three raps on the tube. The plaintiff had worked in the shaft 14 days and knew" there was no ladderway or bell line in the shaft. On February 14, 1912, the shaft was about 90 feet deep. The entire weight of the shaft at that time was upon the hanging bolts. On that day the men had blasted. Plaintiff heard a noise that indicated the shaft was settling. Water and sand were coming into the shaft from behind the timbers. A chunk of some kind fell and hit the plaintiff, and it indicated to him the shaft was settling. Two men besides the plaintiff were in the shaft. They hallooed for the hoist. They attracted no one’s attention. When the plaintiff failed to attract any one’s attention, he started to climb the hanging bolts and climbed about 18 sets.
It is claimed by defendant that Samuel Truscott, a miner, was going down in the bucket and was about 35 feet from the surface when the cave-in occurred, and as the plaintiff started to climb the hanging bolts he told him to stop and take the bucket and ride, and plaintiff answered: “No, I am going to climb the hanging bolts; I can beat you up then.” This is not admitted by the plaintiff. Truscott went to the bottom of the shaft in the bucket and brought the other two men up with him, and the plaintiff rode to the surface with him. A careful inspection of the entire shaft was made at once, and nothing wrong whatever was found, except a cave-in about 25 feet below the surface. The timber had just settled about an inch around the shaft. The plaintiff claims to have been injured by the chunk which fell and hit him before he started to climb the hanging bolts, and also by reason of climbing the hanging bolts. The extent of his injuries was in dispute. He claimed they were permanent and serious, and defendant claimed that at most they were only trivial. From a judgment in his favor, the case is brought here by writ of error.
The defendant contends it is not liable for the following reasons:
(1) That no negligence was shown on the part of the defendant, and the court should have directed a verdict for defendant.
(2) That this shaft, in course of construction, was not a permanent place so that the doctrine of safe place applied.
(3) That the plaintiff assumed the risk of the absence of a ladder road and bell line.
(4) That the plaintiff was guilty of contributory negligence.
(5) That there was no evidence tending to show lack of inspection.
The first two reasons may be discussed together. The plaintiff, who was an experienced miner, states that it was the custom in Iron and Gogebic counties to provide ladder roads where shafts are being sunk. Counsel say this evidence is too indefinite to be of any value for the reason that the plaintiff does not claim that the material through which the other shafts were sunk was similar to this one, or that any of the conditions were similar. Counsel also lays great stress upon the proposition that this shaft, in course of - construction, was not a permanent place, so that the doctrine of safe place does not apply. It is the contention of the attorney for defendant that, up to and for some time after plaintiff’s alleged injuries, all work at this location was solely construction work, and, if we understand his argument, it is that while the work is in that condition liability cannot arise.
This court has held, in Risku v. Iron Cliffs Co., 163 Mich. 523 (128 N. W. 747):
“The men constructing the new shaft, whether in excavating or timbering it, were engaged in preparing a place in which the ordinary operations of the mine would be carried on, and the use of the platform, or staging, was a mere incident to the construction of such shaft. While the shaft was in process of construction, the doctrine of safe place would not apply; after it was constructed, it would apply.”
But in that case it was held the master owed a duty to furnish suitable material to construct a safe platform upon which the men were to work. Other cases where the doctrine of safe place was considered by this court are Livingstone v. Plate Glass Co., 146 Mich. 236 (109 N. W. 431); Dunn v. Dredge & Dock Co., 161 Mich. 551 (126 N. W. 833); Kaaro v. Mining Co., 178 Mich., at page 681 (146 N. W. 149); and the cases there cited.
We dp not understand that any of them hold, because the work is construction work, that the employer would be relieved of liability for all kinds of negligence.
The trial judge eliminated the question of safe place and instructed the jury that:
“The case must be decided upon the question whether or not the defendant was negligent in failing to furnish a suitable ladder by means of which the plaintiff could get out of the shaft promptly, in case of an emergency, and also whether there was any negligence on the part of the defendant in its failure to furnish a proper and suitable signaling system from the bottom of the shaft or from points in the shaft, so that the bucket could be promptly lowered or hoisted in case of emergency where a man would be required to get out of the shaft quickly in order to be reasonably safe.
“Now, it is the claim of the plaintiff in this case that the defendant was negligent in failing to furnish such a ladder, and also in the failure to furnish such a bell system or signaling system. On the other hand, the defendant denies any liability, denies that it was guilty of any negligence, and alleges that the injury was caused to the plaintiff, if he was hurt at all, by reason of his own negligence, and also that he assumed the risk of the particular injury which he claims he suffered on the 14th day of February, 1912.”
They were instructed that unless there was negligence in that regard there could be no recovery. We think there was no error in this instruction.
3. It is claimed the plaintiff assumed the risk of the absence of a ladder road and bell line. This claim is based upon what plaintiff saw or should have seen during the days he was employed in the shaft. In this connection it must not be forgotten that plaintiff was not engaged in the actual construction work of the shaft, but that his duties were as pumpman, and that the work of sinking the shaft began two months before he began his work.
The judge charged the jury upon the subject of assumed risk in part as follows:
“I charge you that the plaintiff, in entering the employ of the defendant and engaging in the work of sinking said shaft, voluntarily assumed all the obvious risks and dangers ordinarily incident to such mining work; that it was his duty to familiarize himself with the imminence of the danger, and he is taken to have assumed all the ordinary risks which were incidental to the work of sinking the shaft which he actually knew about, and also such risks which an average man, using ordinary prudence and care in the performance of such work, would be bound to learn and know of as the result of doing such work. If you find that his injury resulted from any such obvious or usual risk or danger, then it is your duty to render a verdict for the defendant. * * *
“I charge you, gentlemen, in addition to that, first on the question of assumption of risk, that, while it is true that an employee assumes all ordinary and obvious risks of a service, he does not assume any risk except those which are either known to him or would become familiar to him in the ordinary performance of his work. If any risk arises out of an unusual situation, he will not assume that risk, unless he knows, or ought to know, the precise physical conditions from which the risk would ordinarily arise.”
There was more of the charge upon this phase of the case, but it is not claimed the rest is error, if that feature of the case was to be submitted to the jury. The doctrine of assumed risk has been frequently before this court. Two of the leading cases are Bradburn v. Railroad Co., 134 Mich. 575 (96 N. W. 929), and De Kallands v. Telephone Co., 153 Mich. 25 (116 N. W. 564, 15 Am. & Eng. Ann. Cas. 593). These cases are so recent and so accessible that we content ourselves by referring to them. The charge of the trial court in the main was a correct statement of the doctrine of assumed risk, but we think the statement, “if any risk arises out of an. unusual situation, he will not assume that risk, unless he knows, or ought to know, the precise physical conditions from which the risk would ordinarily arise,” was a modification of the doctrine not warranted by the authorities.
4. Was the plaintiff guilty of contributory negligence so that it could be said as a matter of law that he could not recover? This contention seems to be based upon the claim of what was said between the miner who was going down in the bucket, and the plaintiff. There is a disagreement about what was said, and we think this presented a question for the jury.
The court charged upon this feature of the case as follows:
“And the last remaining question would be the question of contributory negligence. The only claim there can possibly be that the plaintiff was guilty- of contributory negligence would be his failure to ride up in the bucket, if you find he had an opportunity to do so.”
It is insisted this limits the field- of inquiry too much; that, in view of what really happened to those in the bottom of the shaft, and the conditions surrounding the entire occurrence, it should have been left to the jury to say whether in climbing the shaft plaintiff did what a reasonably prudent man would do.' We think there is force in this contention. ,
It is said the court committed error in his charge in relation to the measure of damages:
“Upon that question I charge you that the plaintiff is entitled to recover the actual damages which he has suffered by reason of his injuries. It is not admitted •by the defendant that he suffered any injury at all. That will be one of the questions of fact for you to determine. If you find he was injured, you will have to determine the extent of his injuries. The plaintiff is also entitled to recover the loss of his. earnings as the result of the injury. He is entitled to recover for all the pain and suffering which he has endured as the result of the injury, if any. * * * So that matter is for you to determine. You have a right to take into account all his injuries, to consider all the evidence offered before you.”
In this connection, it must be remembered the only question of negligence submitted to the jury .by the judge was the failure to construct the ladder road and the bell line.
The plaintiff testified:
“I did not receive all my injury that night by climbing upon the hanging bolts. The first injury I got from that chunk was between my shoulders. I don’t know what it was. I didn’t see it. It struck me right between the shoulders, just under the collar bone. I couldn’t say how large a chunk it was. It made me sore. I got over it a year ago. It did not break the skin. It broke something inside. I don’t know what it was. It hit me between the shoulders, right between the main neck bone, just about two inches below the base of the neck. I had my clothing on at the time. I don’t know as there was anything else fell in there. That struck me before I started to climb up. I was standing on my knees when that struck me, working at the pump.
“Q. Was that after you had heard the noise?
“A. Yes, sir; it happened at the same time.
“Q. You heard the noise and that happened?
“A. Yes, sir.
“Q. And then you immediately started to go up?
“A. No. sir; I did no°t.
“Q. How long did you wait?
“A. Probably about three or four minutes after.
“Q. You waited there three or four minutes before you started to go up the hanging bolts?
“A. Yes, sir.”
This testimony relates to a hurt which would have been received even though the ladder road and bell line were constructed and- should have been withdrawn from the jury.
We do not think the other assignments of error call for discussion.
For the reasons stated, we are constrained to reverse the case and grant a new trial.
McAlvay, Kuhn, Stone, Bird, and Steere, JJ., concurred with Moore, J. | [
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Bird, J.
The relator filed his petition with the board of supervisors of Wayne county under Act No. 279, Pub. Acts 1909, as amended (Act No. 203, Pub. Acts 1911, 2 How. Stat. [2d Ed.] § 5442 et seq.), to have certain territory in Greenfield township annexed to the city of Detroit. After due consideration thereof, and after being advised by his counsel, relator’s application was denied on the ground that Act No. 279 did not afford adequate legal means to accomplish that end. The relator thereupon petitioned the circuit court for a writ of mandamus to compel respondent to act upon his petition. After a hearing thereon, the circuit court refused to compel action. A writ of certiorari then issued from this court to bring up the proceedings for review.
Two reasons are advanced by the respondent in support of the action of the circuit court:
(1) “That said act does not provide a constitutional means, whereby territory can be annexed to an existing city, or the boundaries of an existing city changed for the reason that nowhere is there provided any discretion in the board of supervisors in passing upon said petition.”
(2) “That such annexation of said territory to the city of Detroit could not be effected under the petition as filed with the board of supervisors, for the reason that there is no constitutional provision for the changing of boundaries of cities by the annexing of territory thereto, at any other time than at such time as provided for the rearrangement of senatorial districts and the apportionment of representatives among the counties and districts, as provided for by section 4, art. 5, of the State Constitution.”
1. Act No. 279 confers jurisdiction upon the board of supervisors, when a showing is made by petition in conformity with the several provisions of the statute. When this showing is made, and is truthful, it appears to be mandatory upon the board to enter an order submitting the question of annexation to the electorate of the territory to be affected by such change. The argument is made that because the act fails to vest the board of supervisors or some other public board with discretion to determine the question, but leaves it to the electorate to decide, the act is void, and this argument is based upon the holding in Shumway v. Bennett, 29 Mich. 451 (18 Am. Rep. 107). That was a case in which the general village incorporation act of 1873 was held unconstitutional, principally upon the ground that it made it possible for a few petitioners, by the aid of the court, to bring about incorporation of certain territory, where the inhabitants of such territory were opposed to it. We think this case ought not to control the one under consideration. In Act No. 279 it will be noted that provision is made for an election in not only the municipality from which the territory is proposed to be detached but also in the municipality to which the annexation is proposed to be made. If the act stopped there, counsel’s argument would have much force, but it goes further and provides that the votes of those residing in the particular territory to be annexed shall be kept separate, and that, if a majority of those residing therein shall consent thereto, the annexation shall be made. In other words, the act not only requires a majority vote of all those residing in both municipalities, but requires a majority vote of those residing in the particular territory. This provision meets the principal ground upon which the act was. declared void in Shumway v. Bennett, supra.
The changing of the boundaries of political divisions is a legislative question, and the power to annex territory to municipalities has often been delegated to boards of supervisors or other public bodies. In view of this, we see no valid objection to the power being delegated to boards of supervisors with a referendum attached, especially since the Constitution has recog nized the principle of referendum. We think this objection is without merit.
It is said that Act No. 279 is inadequate in that no provision is made for maintaining the integrity of the representative district of which the territory proposed to be annexed is now a part. This claim is based upon article 5, §§ 3 and 4, of the Constitution, which provides in part that:
“Sec. 3. Representatives shall be chosen for two years and by single districts, which shall contain as nearly as may be an equal number of inhabitants and shall consist of convenient and contiguous territory; but no township or city shall be divided in the formation of a representative district.”
“Sec. 4. Each apportionment so made, and the division of any county into representative districts by its board of supervisors, made thereunder, shall not be altered until the tenth year thereafter.”
The powers conferred by Act No. 279 should be read in the light of these constitutional provisions; and, when so read, it will result in this: That, when favorable action of the board of supervisors upon a petition for annexation is followed by a consenting vote of the electorate, territory can be annexed for city purposes, but not so as to affect the integrity of the representative district. This may be accomplished by .including in the order of submission a provision for annexation of the particular territory for all purposes, save for the one purpose of electing representatives to the State legislature. The annexed territory would then become a part of the city for all voting purposes, save those in which a representative was voted for. This construction would make effective the act, and at the same time would satisfy the constitutional provisions. Smith v. City of Saginaw, 81 Mich. 123 (45 N. W. 964). See, also, Attorney General v. Springwells, 143 Mich. 523 (107 N. W. 87); Attorney General v. Bradley, 36 Mich. 447.
In Smith v. City of Saginaw, supra, a like question arose, but the legislature in a special act, authorizing the annexation, provided that no change should be made in the boundaries of the representative districts of the county, and it was there said that:
“Saginaw city and two townships comprised one district, and the city of East Saginaw the other. The voting precincts in the territory which comprised the old cities of Saginaw and East Saginaw are preserved intact in the new municipality. It is thus apparent that not only are the representative districts retained and preserved entire, but that no possible difficulty, doubt, or confusion can arise among the electors either as to time, place, manner, or right to vote, and no elector is or can be disfranchised.”
The difference between that situation and the one under consideration lies in the fact that in the Saginaw Case an express provision was made in the local act preserving the integrity of the representative district, while in the act under consideration no such express provision exists. While no express provision exists, we think the power to provide in the order of submission a provision to preserve the integrity of the representative district can be implied from the general powers granted.
When the power to annex is conferred upon the board of supervisors and the electorate, we think it carries with it the implied power to make such incidental orders as become necessary to make the power conferred effective. City of Port Huron v. McCall, 46 Mich. 565 (10 N. W. 23). But it is said the case of People v. Holihan, 29 Mich. 116, is an authority establishing the inadequacy of this legislation. An examination of the holding in that case will disclose that the annexation was declared void on the ground that no provision was made to preserve the integrity of the representative district. In Smith v. City of Saginaw, supra, an express provision was made. In the act under consideration, we think there is an implied power to make an order of submission that will accomplish that end, and, when that object is accomplished, it satifies the objection made in People v. Holihan, supra. While it might have been wiser for the legislature to have granted this express power to the board of supervisors, we think the act should not be declared inadequate for the want of it.
The order of the trial court is reversed, with direction to issue the writ as prayed.
Brooke, C. J., and Kuhn, Stone, Moore, and Steere, JJ., concurred with Bird, J. | [
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