Datasets:
aidos-lab
/
mich-embeddings-int8-mixed-bread-large

Dataset card Data Studio Files Community
1
text
stringlengths
12
234k
embeddings
sequencelengths
1.02k
1.02k
Stone, J. In September, 1911, the complainant was, and had been for some time, engaged in the business of shoe repairing, and owned the premises involved in this suit, known as 1278 Rivard street, in the city of Detroit, which he, with his family, occupied as a homestead. The property was incumbered by a mortgage of $1,200. The homestead was all the property which complainant owned, and he claims that he was ignorant of business affairs and uneducated. Having occasion to employ a plumber to do some work in his house, he called in the defendant Frank B. Kuczynski, a countryman of his, with whom he had no previous acquaintance. The said defendant informed complainant that he was looking around with a view of buying some property. A few days later, when the work was completed, said defendant called on the complainant and was informed that complainant would sell his homestead to him if he wanted to buy. A price was stated, and then said defendant asked complainant what he thought of the idea of going into partnership with him in the plumbing business. The complainant claims that he stated he was ignorant of such business, and that such a partnership would be impossible, to which the defendant replied that it could be made possible. A few days later said defendant and his wife visited complainant’s home, and further efforts were made to induce complainant to enter into the proposed partnership. The said defendant told complainant that he would take the latter into partnership if the complainant would first pay him the sum of $1,500, which sum the defendant stated he needed at that time. Complainant replied that he had no money, and said defendant offered to take complainant’s interest in the homestead in lieu of the $1,500 in cash, and complainant claims that he was induced by the said defendant to enter into the proposed partnership, and that, before the articles were drawn up, the complainant asked said defendant how much the latter was- worth. Said defendant thereupon made out a statement of all his assets which he was to turn into the partnership to represent his three-fourths interest therein. In this statement said defendant represented that the property which he was turning over to the partnership was worth the sum of $5,535.32, less $300 for unpaid materials. Complainant claims that said defendant also agreed to take an inventory of his stock, and that he showed complainant the material he had at that time, and also took him out to a few places in the city and showed him work which he had started. Complainant, claiming that he was very ignorant of the value of such stock, inquired of said defendant whether what was shown him was worth nearly $6,000, and said defendant assured complainant that such was the fact, and that a close inventory would prove it to be worth even more. On the 22d day of February, 1911, an agreement of copartnership was drawn and signed by the said parties. Under the firm name of Kuczynski & Antoszewski, the business to be carried on was that of plumbing in the city of Detroit, term to be one year, and such further period as the partners might agree upon. The capital of said firm was stated to be $5,500, of which sum defendant was to contribute three-fourths and complainant one-fourth in cash or property, and the partners were to share in the profits and losses in the same proportion. Among other things, the articles provided that each of said partners should be permitted to draw from the fund of the firm a salary, said defendant to receive $4 a day for the first year, and complainant $2 a day, after which time both partners were to receive the same amount. Said complainant and wife conveyed to said defendant and his wife the said homestead, and in return for this the said defendant executed a bill of sale of an undivided one-fourth of his assets to the complainant. It is the claim of the complainant that the valuation placed on his homestead was $2,900; that complainant was to put into the business an interest in that property which would represent the sum of $1,500; the $1,200 mortgage to be assumed by the said defendant, and the difference of $200 was to be paid by said defendant to complainant in cash. Of this amount the complainant claims that he received $150 from said defendant. It is the further contention of the complainant that an understanding was had between him and the said defendant at that time, by which the complainant and his family were to occupy the second floor of the premises conveyed to said defendant and wife, as long as the complainant should stay in the business with said defendant, and that he was not to pay any rent for the period so stated. The complainant continued to live there, in pursuance of this understanding, without paying rent until some time after this suit was commenced, when unsuccessful attempts were made to eject complainant therefrom, and later said defendant threw complainant’s household goods out of the house during complainant’s absence. Complainant claims that, notwithstanding repeated requests, he was never able to obtain. an inventory from the said defendant as promised. It is the further claim of complainant that during the existence of the partnership the said defendant continually urged the complainant to incorporate their business. This was finally agreed to. On December 12, 1911, articles of incorporation were drawn up with the said defendant and Josephine Kuczynski, his wife, and complainant, as corporators. All three subscribed the articles of incorporation, and the same were put in evidence. The name assumed by the corporation was “City Plumbing Company.” It provided for a capital stock of $15,000, but that only $8,000 were subscribed; the shares being of the par value of $100. Article 7 of said articles reads as follows: “The amount of said stock actually paid in at the date hereof is the sum of eight thousand ($8,000) dollars, of which amount two thousand six hundred and ten ($2,610) dollars has been paid in cash, and five thousand three hundred and ninety ($5,390) dollars has been paid in other property, an itemized description of which, with the valuation at which the item is taken, is as follows, viz.: Crooks, cast iron pipes and fittings now at shop, at 1278 Rivard street, $50; 400 feet of lead pipe, $80; 400 feet of soil pipe, $200; soil pipe fittings at 1278 Rivard street, $60; small pipe fittings, plumber’s materials and plumbing tools, all in shop at 1278 Rivard street, $2,050; plumbing materials and tools in store at 1278 Rivard street, $850; one Buick car, runabout, model 1910, numbered 663, $1,055; credits for work done and money outstanding, secured and unsecured, belonging to Frank Kuczynski and Anthony Antoszewski, $1,045. Said outstanding accounts are owned by Frank Kuczynski and Anthony Antoszewski, doing business under the firm name of the City Plumbing Company, a copartnership to which the corporation succeeds.” The said three parties subscribed the articles of incorporation; and all three made oath that the property described in article 7, which was taken in payment of stock, was worth the sum of $5,390. Complainant received 20 shares of stock for his one-fourth interest in the partnership. The said defendant, Frank B. Kuczynski, received 59 shares, and his wife, Josephine Kuczynski, received one share. Soon after the articles were drawn up, a meeting of the stockholders was had, at which Josephine Kuczynski was made secretary and treasurer, and the complainant was made vice president, and the control of the financial end of the business was placed in the hands of said defendant, Frank B. Kuczynski, exclusively. A few weeks after the corporation was organized, two shares of the capital stock were sold, one to defendant Pieprzak and one to defendant Brakoniecki. At a meeting of the stockholders, held on February 12, 1912, the complainant and two last-named defendants insisted upon an inventory being taken of the assets of the corporation. Kuczynski opposed this move, but finally gave his consent, and two experienced plumbers were to take inventory of the assets of the corporation. It is the claim of complainant that next day, however, said defendant withdrew his consent after a quarrel and altercation with the stockholders. Complainant, becoming suspicious that the property, especially the $2,610 in cash, mentioned in the articles, had not been paid over to the corporation, employed two experienced men in the plumbing business to make a detailed inventory of the assets of the concern. It is claimed that the said defendant prevented such inventory, but that said parties were able to make a fair estimate," and found that not only the $2,610 were not paid in, but the entire stock was worth not to exceed $500. On March 7, 1912, the original bill of complaint in this case was filed, setting up these grievances at great length, and praying, among other things, that an accounting be taken between the said Frank B. Kuczynski and the defendant the City Plumbing Company of all and singular the moneys and expenditures of the said City Plumbing Company, and of the amount received by the said defendant Frank B. Kuczynski, for and on account of the said City Plumbing Company; that on such accounting the said defendant Frank B. Kuczynski be required to pay over to the said City Plumbing Company all money which he had wrongfully or otherwise converted to his own use of its property; and especially that he be further decreed to account for the sum of $2,610 aforesaid, and that a receiver be appointed to take charge of the company; and that if, in the judgment of the court, it was found impracticable to further carry on the business of said plumbing company as a corporation, with profit or success, then in that case that the said corporation be wound up by a sale of the business, good will, and property of said corporation, and the avails thereof, after paying all its lawful indebtedness, be distributed among the shareholders as their interests might appear. The bill prayed for a very broad injunction. A preliminary injunction was finally issued restraining the officers of the corporation from disposing of the property belonging thereto, except in the usual and ordinary course of business. A separate answer was filed' by the City Plumbing Company, and a joint and several answer by the defendants Frank B. and Josephine Kuczynski and defendant Pieprzak; the bill having been taken as confessed as against defendant Chester Brakoniecki. These answers, in short, denied all fraud and dishonest conduct on the part of the defendants, and it may be said that they denied every material allegation of the bill of complaint. These answers denied that the complainant was entitled to any relief, and prayed the advantage of a demurrer to the bill of complaint. Upon the issue framed in this manner, the case was brought to a hearing in the month of January, 1913. The complainant was examined at great length, as well as the said defendant Frank B- Kuczynski, who was called by the complainant, and numerous other witnesses were examined. Upon the hearing, and after testimony had been taken for a day or two, the complainant desired to amend the bill of complaint, and counsel for the defendants, referring to such motion of complainant, said: “I want to make a motion that they file their amendment now, whatever amendment they are going to file. It does not occur to me that it is in the interest of justice in this case to allow these men to fish for what they will put in their amended bill in this case. We don’t know at present just what they are going to put in their amended bill. They have asked to amend in one particular. It occurs to me, after reading the bill over again last night, that they will have to amend all their allegations in order to reach the remedy they desire here. We ought to know at some reasonable time in this case what we are going to defend, and what relief they are going to ask; what allegations they are going to set up. “The Court: I don’t think there is anything unreasonable in that request. “Complainant’s Counsel: We cannot sit down and do it right now. You said you anticipated this move. “Defendant’s Counsel: I anticipated that that was the relief that you would have to ask for eventually, if you asked for any; that you could not ask for the relief that you have asked for, under the law. * * * “The Court: Isn’t it possible — without couching it in the language of allegation, isn’t it possible to say now what propositions you intend to cover by your amendment? “Complainant’s Counsel: I think so. “The Court: I think you better do that. Then at the first opportunity prepare the amendment. There has one opportunity gone by now. “Complainant’s Counsel: This really comes by way of supplement rather than by way of amendment. We are prepared to show, by way of supplement, that since the filing of this bill of complaint the assets of the corporation have been depleted to such an extent, through the actions of Frank Kuczynski, that the re lief originally prayed for in the bill of complaint would avail us nothing, and for that reason we ask leave to amend the prayer of the bill, and ask that conveyance of the property by Antoszewski to Kuczynski be set aside. I think outside of that our bill is sufficiently full to warrant the court in granting that prayer for relief, if he finds that the facts are sustained. A question was raised here yesterday that we allege in our bill that the value of the premises was about $2,700. The testimony shows it was $2,900. If there is any question about that, I will ask leave to change that from $2,700 to $2,900. “The Court: All right. You may proceed. * * * “Defendant’s Counsel: I desire to demur to the amendment. Of course, I want to take an objection to the amendment as granted, and I want to demur to the amendment, that there is no allegation in the present bill to sustain the new prayer that they now seek to inject into their supplemental bill. “The Court: All right. “Defendant’s Counsel: And that the bill as presented now would make the matter multifarious. “The Court: That is one of the grounds of your demurrer ? “Defendant’s Counsel: Yes.” The examination of the witnesses proceeded with the pleadings standing in this condition — witnesses having been called by both parties — until the testimony finally •closed, at which time defendants’ counsel said: “That is all we have to offer, your honor. I desire to make a motion. I filed a brief, your honor. * * * I desire now to make a motion that this bill be dismissed for legal reasons. He does not set up in the bill that this man has ever made a petition to the board of directors to have his wrongs redressed, or to have this suit brought, nor has he testified to it in his testimony here.” Whereupon counsel proceeded with his argument, citing certain authorities. The record shows the following : “(After the amendments Mr. Stowers states that .he thinks the amended bill should be filed. The court states that he believes the amended bill ought to be filed. Mr. Stowers asks for five days to file an answer or demurrer. The court says he does not think this is an unreasonable request.)” The testimony here closed. From the record we understand that the case was here submitted. It appears that on January 29, 1913, what is termed an “Amended and Supplemental Bill of Complaint” was filed. The stating portion of the bill varies only slightly from the original bill. It does, however, contain an averment that, upon complainant discovering the fraud perpetrated upon him, he tendered back to the said plumbing company and said defendant Frank B. Kuczynski the said shares of stock and said sum of $150, and demanded his property back. Testimony to this effect had already been given upon the hearing. The prayer of this so-called amended and supplemental bill, in addition to the prayer of the 'original bill, contained the following: “Or that the deed by which your orator conveyed to the said defendants Frank B. Kuczynski and Josephine Kuczynski, his wife, the said premises herein described and located at 1278 Rivard street, Detroit, Mich., be declared null and void, and the said conveyance set aside, and that the defendants Frank B._Kuczynski and Josephine Kuczynski may be required to reconvey the said premises to your orator, and that said defendants Frank B. Kuczynski and Josephine Kuczynski may be restrained by an injunction of this court from selling, assigning, disposing of, or in any manner incumbering said premises known as 1278 Rivard street, in the city of Detroit, Mich., until the further order of this court.” On February 3, 1913, the individual demurrer of Frank B. Kuczynski was filed, and on the same day the joint demurrer of the City Plumbing Company, Frank B. Kuczynski, and Josephine Kuczynski to the amended supplemental bill of .complaint was filed. The demurrers were alike in effect, and were substantially as follows: (1) That the amended supplemental bill as it now stands is multifarious. (2) That the averments and prayers are incongruous one with the other. (3) That the court, in this case, can enter no decree that will apply with equal force to all the defendants. (4) That the amended or supplemental bill seeks a new relief not prayed for in the original bill, and states no new matter that has arisen since the original bill was filed. With the record in this condition, the court, on the 26th day of May, 1913, filed a lengthy opinion reviewing the testimony in the case, and reaching the conclusion that the complainant was entitled to have the premises reconveyed to him, subject to the claim of defendant Kuczynski for certain repairs and improvements made upon the property. In the course of this opinion the court reviewed the history of the said Frank B. Kuczynski in a severe manner, finding that he had been guilty of fraud in his dealings with the complainant, among other things, saying: “In the bill as originally .filed the complainant asked that the defendant Frank Kuczynski be compelled to pay into the treasury of the corporation the cash which the articles of incorporation stated had been paid in. Subsequently he concluded this would bring him small relief, because of the worthless condition of the company’s affairs, and has filed a supplemental or amended bill, and has prayed that the court restore to him his property on Rivard street, Detroit, Mich. “Defendant asserts that four distinct issues arise out of the case: (1) Can the complainant maintain this case? (2) Is he entitled to file an amended or supplemental bill? (3) The amended or supplemental bill is objectionable for multifariousness. (4) The complainant, in failing to promptly rescind his contract, when he discovered what he terms fraud, does not come to a court of equity with clean hands. “As to the proposition 1: The jurisdiction of a chancery court in a matter of this nature is expressly conferred by section 9757, 3 Comp. Laws, and the cases cited which explain those sections. “As to 2: The purpose of the complainants in the original bill does not differ from the purpose expressed and desired in the amended or supplemental bill. He desired to possess himself of the money taken from him, either in the shape of cash, property, or shares of stock made valuable by the cash behind them. The dispute between the complainant and the defendant Frank Kuczynski is fully presented by this proceeding, and there is and should be no good reason for denying such amendment or amendments as will permit and justify a full investigation into all of the facts surrounding this transaction and a prayer for such relief as the present situation makes practical. “As to No. 3: As already pointed out, the purpose of the original and amended bill is the same. In framing these, of necessity there comes an alternative .proposition. That is, if the court should find that the defendant Frank Kuczynski has so conducted the business of the corporation that a payment into its treasury of $1,500 or the sum stated in the articles would not result in granting any practical relief to the complainant, it then decree the return to him by the defendant of the property which the defendant is now possessed of. “The defendant’s purpose, as expressed by his former bookkeeper, would be accomplished in this case, and no relief of any practical character would come to complainant, and, in my judgment, the proper measure of justice will not be accomplished, unless the defendant Frank. Kuczynski is deprived of some of his cunningly obtained property. This was a purpose of the original bill; it remains one of the amended instrument; and the objection of multifariousness is not well taken. “As to 4: It is true that the complainant might have acted more promptly, but he was in the position of one who was hoping for the best, and his first attempts to accomplish something are the efforts rather of a misguided man than of one acting in bad faith. As the defendant has, in the estimation of the court, placed improvements on the property, which are worth not to exceed $500, this amount should be taken into consideration, as should also the condition of the taxes and mortgage, complainant will have a decree ' with costs.” On November 8, 1913, the court made its final decree in the case, ordering that the conveyance from complainant to the said defendants be set aside and declared null and void, as against said complainant, his heirs and assigns; that complainant pay to the defendants $559.81, being the amount of improvements, taxes, and interest upon the mortgage laid out and expended by said defendants upon the said premises, for which amount said defendants were to have a lien upon the property; and that, upon the payment of the same by the complainant, defendants Frank B. Kuczynski and Josephine Kuczynski, his wife, do convey to the complainant the premises, describing them. The case rested in this condition until the month of January, 1914, when new counsel for the defendants came into the case and moved the court to set aside the decree rendered for the following reasons, to wit: (a) Because said decree was prematurely made. (5) Because no order was made or entered in the case disposing of the defendants’ demurrer to the amended bill of complaint, (c) Because no issue under the amended bill of complaint had been framed for the hearing thereon. (d) Because no hearing was had on the new and antagonistic issue raised by the amended bill of complaint: “This motion will be based upon the files, records, and proceedings of said cause in said court and upon the hearing of the case upon the original bill of complaint, answers thereto, and proofs taken in open court on the hearing thereon.” Thereupon, upon the hearing of said motion on February 13, 1914, the court made and entered the following order: “The defendants’ motion to set aside the decree heretofore rendered in this case as having been prematurely made and entered and for other reasons cited in said motion, having come on to be heard, and after hearing the arguments of the solicitors for the respective parties, and it appearing to the court from the files and records that the amended bill of complaint was filed on January 29, 1913, and the defendants’ demurrer thereto was filed on February 3, 1913, after the testimony was closed and the cause submitted, and that no order was entered in said cause overruling said demurrer and granting the defendants leave to answer same according to the rules and practices of said court, and that said decree was prematurely entered, it is therefore ordered that the demurrer of said defendants to said amended bill, which the court has considered as a joint and several demurrer, be and is hereby overruled, and that said defendants respectively are granted leave on or before February 26, 1914, to file their several answers to said amended bill of complaint, adding thereto, if they desire, a demurrer clause therein, incorporating substantially the several grounds of demurrer incorporated in the demurrer heretofore mentioned, which is likewise overruled, and this court being satisfied as indicated in his opinion filed in said cause ‘that the purpose of complainant in the original bill does not differ from the purpose expressed and desired in the amended or supplemental bill,’ and that no other or further proof should be allowed to be taken or hearing had upon the amended bill, and that the requests of the defendants therefore be denied. “It is further ordered that the decree heretofore entered in said cause on November 8, 1913, stand as and for the decree of this court as made and entered on February 28, 1914, in place of November 8, 1913, without further hearing, to all intents and purposes as if the same had been first entered on said February 28, 1914.” The defendants have appealed. As we have already stated, the amended or supplemental bill in its averments, except in the particulars pointed out, was substantially the same as the original bill. It is urged by appellants that the court should not have permitted the amendment to be made. We are of opinion that the action of the court in that regard was within its discretion. The matter of the amended bill did not seem to be any surprise to defendants’ counsel, for we find one of them stating: “I anticipated that that was the relief that you would have to ask for eventually, if you asked for any.” We think that, under the liberal rule of amendments in this State, the court did not abuse its discretion in that regard. Brown v. King, 172 Mich. 355 (137 N. W. 729); City Bank & Trust Co. v. Hurd, 179 Mich. 454 (146 N. W. 299). Many earlier cases might be cited. We do not think that the bill of complaint, as amended, was multifarious. The fact that the prayer had been amended would not render it so. Often a bill may have a double aspect, and an alternative prayer, without being multifarious. Many of our cases might be cited upon this subject. Wales v. Newbould, 9 Mich. 45; Cornwell Manfg. Co. v. Swift, 89 Mich. 503, 519 (50 N. W. 1001); Cleland v. Casgrain, 92 Mich. 139-147 (52 N. W. 460); Densmore v. Savage, 110 Mich. 27 (67 N. W. 1103); Eberle v. Heaton, 124 Mich. 205 (82 N. W. 820). We do not understand the claim that no decree could be made applying with equal force to all defendants. All of the defendants (except one who had a small interest, against whom the bill was taken as confessed) were before the court, represented by counsel. We agree with the trial court that the equities were with the complainant, and we see no legal objection to the decree which was entered upon the merits of the case. As this court said in Bigelow v. Sheehan, 150 Mich. 507, at page 515 (114 N. W. 389), at page 392: “When all the parties and the subject-matter of the suit are all before a court of equity, and the proofs show that a decree can be entered doing exact justice to all, technicalities in pleadings are to be overlooked.” The court below seemed to agree with counsel for defendants that the decree had been prematurely-entered, because the demurrers had not been disposed of. The decree was treated as vacated; the demurrers were then disposed of by the court, and we think rightfully, and the decree restored as of February 28, 1914. In order to perfect the record, the court gave counsel for defendants leave to file answers to the amended or supplemental bill of complaint on or before February 26, 1914. We understand that this was done to complete the record. The subject-matter of these answers had been substantially covered by the previous answers and demurrers in the case. The record does not show that any application was made to the court to open up the case for the purpose of taking more testimony, nor does the court’s attention appear to have been called to any such claim, and we find no such claim in the record. On the contrary, we find counsel for defendants announcing at the close of the testimony: “That is all we have to offer, your honor.” In pursuance of the order of the court, the defendants appear to have filed the answer of Frank B. Kuczynski to the amended bill of complaint on February 27, 1914, and the answer of the defendant the said Plumbing Company, and the answer of Josephine Kuczynski on March 24, 1914. While the proceedings in the case were somewhat irregular, and out of the usual course, a careful consideration of the record leads.us to the conclusion that substantial justice was done by the decree entered in the case, with the one exception which we shall hereafter mention. It is urged, among other things, that there was no evidence tending to show that the defendant Josephine Kuczynski was in any manner a party to the alleged fraud,' and that, she having taken title jointly with her husband, the court should not have set aside such conveyance as to her. It should be borne in mind that she was represented by counsel at all times during the hearing of the case and the taking of testimony. The transaction was really one between the complainant and her husband. There is no evidence that she put any money or property into these premises. Under the evidence in the case, we think the court was justified in the conclusion which it reached in that regard. We think, however, that the decree below should be modified by requiring the complainant to pay to the said defendant Frank B. Kuczynski the sum of $150 and the interest thereon, which complainant admits he received and has never returned. This amount should be added to the $559.81 specified in the decree; and we think the decree should also provide that the complainant shall assign and deliver or tender to the said Frank B. Kuczynski the certificate for the 20 shares of stock which he received for his partnership interest in the corporation. With these modifications the decree of the circuit court will be affirmed. No costs awarded to either party in this court. Brooke, C. J., and McAlvay, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred.
[ 2, 72, -10, -45, -8, 19, 3, 13, 26, 11, 31, 19, 22, 34, 10, 11, -3, -49, 34, -17, 36, -36, 24, -5, 1, 21, -12, -37, 25, 2, -1, 15, -25, 4, -56, 33, 28, -48, -21, -12, 2, 30, 29, 36, -6, 37, -5, -48, 25, -44, 0, -19, 12, 20, 35, -51, -15, 59, -37, -33, 17, -21, 29, -4, 17, 32, -4, 23, 19, 20, -35, -5, 55, -18, 5, -27, -14, -4, -45, -19, 14, 3, 51, -23, -76, 26, 15, 6, -62, -40, 6, 56, 45, 109, 5, 18, 2, 37, 0, 10, 0, 54, -9, -6, -3, -16, -1, -52, -17, 66, 6, -18, 58, -13, -35, -12, 14, -46, -11, -36, -32, -14, -20, -44, 17, 7, -29, -7, -8, -6, 24, 26, 10, 35, -56, -44, 20, 1, -2, 34, 55, 23, -42, -35, 2, -4, -5, -11, -25, -36, 0, -6, 21, -3, 14, 9, 2, 16, 67, -29, 44, 6, 17, -7, -15, -3, -36, -7, 6, 12, 0, 12, -2, -98, 4, -23, 19, 4, -43, -14, 22, 7, 10, -19, -2, -48, 34, -43, 13, 19, 35, -19, -49, 53, -23, -2, 19, -15, -19, -32, -29, -11, -19, -5, 27, -45, 12, 7, 2, 8, -19, 39, 0, -36, -34, 12, 26, -37, 1, -1, 27, -10, -23, 43, -32, -24, 16, -6, 22, 18, -53, -17, 29, 0, 2, -9, 57, 54, 7, 26, -60, 18, -6, 41, -8, -33, -63, 0, -9, 31, -28, -15, 0, -1, -3, 19, 13, 25, 8, -6, 2, 26, -31, -2, 52, -54, 1, 9, -12, 32, -25, -7, 37, 34, -28, -29, -41, 2, -12, -21, -9, -37, -5, -1, -1, 44, 31, 11, -34, 1, 19, 3, 18, -44, 46, 14, 36, -53, -1, 47, -61, -9, 22, -24, 29, -20, -2, 25, 12, 28, -2, -76, 5, 34, 15, 23, 2, 19, -9, -27, 18, 22, -28, 31, 13, -35, 32, -37, 0, -25, 6, -14, 9, 25, -56, -5, 45, -41, -22, -10, 39, 27, 19, -6, 27, 19, -4, -36, 24, -1, -17, -55, -29, 42, 35, 28, 14, 15, -19, 36, 66, 32, -30, 1, -49, 14, -40, -18, 5, 71, -31, 4, -45, 9, 13, -47, -28, -3, -48, 52, 0, -32, 33, 22, 47, -23, -24, -27, -56, -22, -37, 10, 43, 8, -3, -12, -9, -21, -59, -59, 23, 9, -22, -13, -39, 28, -3, -6, -12, 1, 25, -39, -1, -16, -16, 5, 72, -37, 20, 16, -43, 4, -10, 8, 51, -23, 37, 2, -38, -5, 8, 21, 35, -3, 47, -24, -38, -1, -60, 38, -41, 46, 3, 14, 42, -6, -45, 24, 65, -3, -37, 9, 9, 34, 3, -7, 18, -11, 86, -5, 44, -14, 6, -25, -68, -23, 33, -37, -31, 20, 5, 6, 12, -1, 2, 2, 2, -1, 29, 19, -6, 8, 13, 25, -50, -33, -26, 0, -28, 24, 19, 20, 15, -33, 15, 9, -29, -7, 9, 24, -8, -9, 5, -5, -16, -6, -14, -10, 23, 45, -27, -13, 3, 21, 19, 16, 15, 27, -12, 6, -11, -13, -46, 17, -3, 24, 19, 39, 15, -29, 21, -32, 0, 11, 4, -2, 50, 11, 31, 3, -4, 29, 8, 22, -16, 38, -29, -1, 17, 9, -33, -44, -14, -7, 10, 29, 5, -13, -3, 27, 3, 31, 24, -7, 35, -37, 27, -6, -4, 29, -54, -3, 1, 22, -12, -46, -7, -2, -51, -23, -29, -23, 13, -49, -27, 45, -16, -20, -10, 31, -9, -2, -13, -42, 19, -22, -20, -1, 5, -1, -4, -49, -32, -39, -41, -45, -64, 49, -7, 24, 11, 2, -27, 1, 43, 4, 33, -38, 30, 21, 33, 3, -3, -7, 43, 8, -3, -3, -61, 6, -15, 16, 41, 38, 26, 9, 47, 9, -36, 5, 8, -25, -38, 10, -2, -11, -23, 14, -4, 8, -10, -8, 56, 6, 25, -10, 36, -23, 14, -17, 0, -5, -15, 43, 21, -4, 24, -1, -5, 10, 3, 8, 31, 17, -6, -10, -2, 3, 17, 11, 35, -9, 10, -17, -9, -51, 0, -15, 2, -30, -11, -12, -30, -48, -9, 60, 5, 44, 21, -44, 1, -48, 31, 33, -15, 19, 13, 11, -6, -20, 52, -47, -3, 23, -8, 32, -14, -32, -22, 9, 4, -50, 27, -46, 35, -9, -15, 19, -47, 0, 21, -4, 25, -4, -35, 22, -51, -65, -58, -42, 12, -12, -17, 26, 6, -23, 28, -1, -13, 16, -16, 13, -9, 25, 67, -27, -27, -3, -52, -6, -46, 32, 10, -46, 6, 22, 42, -39, -18, -13, -42, 22, -22, 8, 14, 4, 8, 14, 36, -20, 42, -27, -19, 35, -35, -14, 37, 10, 74, 24, -9, -57, -28, -23, -23, -9, 29, 20, 18, -13, -32, 9, 33, 8, 29, -1, -21, 15, -3, 15, -40, -29, -20, -5, -14, 15, -7, 19, 0, 32, -6, 9, 8, 11, -24, 17, 1, 3, -31, 18, 30, -38, 15, 26, -20, 30, 9, 9, -18, 18, 29, -44, -35, 29, 35, 8, -45, -8, -65, -35, -26, -29, -6, -8, 11, 10, -40, 14, 0, -15, 47, -3, -44, -7, -3, -46, -20, -2, 8, 29, 18, 20, -65, -39, 75, 37, 9, -13, 49, -15, -46, 37, 1, 34, -36, 47, 43, -9, -7, 51, 25, -37, -10, -21, -1, -33, -18, -43, 15, -20, -11, -6, -4, 23, -9, -8, -23, 9, 0, 1, 41, -12, -22, -26, -26, 25, 1, -7, -39, 56, -8, -26, -45, -29, -9, -34, -6, 34, 24, 40, 7, -47, -16, 2, 0, -57, 34, -34, -36, 0, 22, 0, 15, -12, -16, -25, 0, 0, 39, 37, 8, 34, 1, 48, -1, 7, -29, -4, -7, 4, 11, 24, -11, -39, 16, -17, 23, 0, -10, -18, -7, -27, -14, -22, -13, -1, 16, 8, -1, -53, -17, -13, -33, 41, 24, -9, 19, -18, -15, -13, 11, 30, -43, 14, 22, 0, -3, 29, 22, -60, -7, 1, 3, 2, 20, 15, 17, 31, -30, -53, -55, 11, 45, 27, -45, 19, -30, 28, -9, -8, 40, -6, -21, 83 ]
J. H. Gillis, J. The Department of Public Health appeals by right the lower court’s grant of declaratory relief to petitioner. Livingston Care Center, Inc., appeals by right the denial of its motion to intervene in the lower court action. The appeals have been consolidated. The petitioner is the owner and operator of a nursing home, seeking to build an addition to its facilities. Livingston Care Center, Inc., is the owner and operator of a competing nursing home in Livingston County. The Department of Public Health administers the state’s certificate of need program, embodied in §§ 22101-22181 of the Public Health Code, 1978 PA 368, MCL 333.22101 et seq.; MSA 14.15(22101) et seq. The department also acts as the state’s "designated planning agency” for purposes of § 1122 of the Social Security Act, 42 USC 1320a-l, limiting the use of federal funds to reimburse health facilities in connection with capital expenditures. The purpose underlying both state and federal statutes is to contain the costs of medical care by restricting the construction of unneeded health facilities. Commentary: Certifícate of Need and the Antitrust Laws: Can They Co-exist?, 1980 DCL Rev 599, 606-608. The petitioner brought suit in Livingston County Circuit Court, challenging the department’s determination that the petitioner’s proposed addition to its nursing home was subject to review under both state and federal statutes. The petitioner claimed that it was exempted from review by the terms of the statutes and by prior determinations made by the department. Reversal of those prior determinations was allegedly improper. The petitioner relied on representations by department officials stating that the petitioner had an enforceable contract to build the addition before the review procedures became mandatory. Where an enforceable contract existed prior to the date on which review became mandatory, the capital expenditure was exempt from review. The judge agreed, holding that the department was estopped from reversing its determination of exemption and holding that the determination of exemption was a declaratory ruling, MCL 24.263; MSA 3.560(163). The judge held that the change in the determination was an improper attempt to change a declaratory ruling retroactively. The respondent claims that the lower court erred by denying its motion for accelerated judgment due to the lack of subject matter jurisdiction, GCR 1963, 116.1(2). The judge based his finding of jurisdiction on § 63 of the Administrative Procedures Act (APA), which states: "On request of an interested person, an agency may issue a declaratory ruling as to the applicability to an actual state of facts of a statute administered by the agency or of a rule or order of the agency. An agency shall prescribe by rule the form for such a request and procedure for its submission, consideration and disposition. A declaratory ruling is binding on the agency and the person requesting it unless it is altered or set aside by any court. An agency may not retroactively change a declaratory ruling, but nothing in this subsection prevents an agency from prospectively changing a declaratory ruling. A declaratory ruling is subject to judicial review in the same manner as an agency final decision or order in a contested case.” MCL 24.263; MSA 3.560(163). The petitioner does not claim that a formal request for a declaratory ruling was made but that the department’s letters constituted declaratory rulings as a matter of fact because they were determinations concerning the applicability to an actual state of facts of a statute administered by the department. The petitioner relies on Justice Levin’s statement that the Supreme Court looks to substance in deciding whether an agency has issued a declaratory ruling. Greenfield Construction Co, Inc v Dep’t of State Highways, 402 Mich 172, 221; 261 NW2d 718 (1978). Justice Levin stated that the right to judicial review does not depend on an agency’s compliance with the APA or its labeling of its decision a declaratory ruling, noting that the highway department had not provided by rule for declaratory rulings. Two other justices concurred in that part of the opinion concerning declaratory rulings. Three other justices described § 63 of the APA as providing "narrowly circumscribed authority in the circuit court for judicial review of a declaratory ruling issued by an agency of state government * * *”. Id., 188. In Greenfield, an equally divided Court affirmed the decision of this Court. The important facts in the present case differ significantly from those in Greenfield. The Department of Public Health promulgated 1979 AC R 325.1211, effective February 7, 1972, providing: "A person requesting a declaratory ruling as to the applicability to an actual state of facts of a statute, rule or order administered or issued by the department of public health shall do so on a form provided by and available at the department. The form shall be completed in full and shall be filed, either by mail or in person, in the Office of the Director, 3500 North Logan Street, Lansing 48914. After receipt of a correctly filed request, the department shall have 30 days within which to notify the initiator of the request by mail whether a declaratory ruling will be issued. If the department’s response is affirmative, and prior to the issuance of a declaratory ruling, reasonable time shall be provided to the director for seeking further consultation, or for requesting from concerned sources additional submissions of pertinent information, or to allow for the presentation of evidence or oral argument or both. Exercise of any or all of these alternatives shall be at the discretion of the director.” In Greenñeld, the defendant state agency relied on its lack of rules to claim that its determination was not a § 63 declaratory ruling. Here, a validly promulgated rule existed providing a formal procedure for submitting requests for declaratory rulings and governing treatment of requests. This rule was in effect at all times at which a claimed declaratory ruling was made. The petitioner never attempted to comply with the rule. To require the petitioner to seek a declaratory ruling before undertaking judicial review would not allow an agency to evade its responsibility to promulgate rules for declaratory rulings under § 63. In this way, the present case is significantly different from Greenfíeld. Declaratory rulings under § 63 of the APA serve two distinct purposes. They allow a party to obtain a binding determination of rights from an agency in the nature of a declaratory judgment. This creates greater flexibility for the agency and for those dealing with it. 1 Cooper, State Administrative Law (1965), p 240. The section also allows judicial review of such a declaratory determination. This provides an unparalleled opportunity for judicial review of an agency action without the need to exhaust other administrative remedies. Lebenbom, Sections 63 & 64: Declaratory Rulings, 58 MSBJ 398 (1979). A refusal to issue a declaratory ruling upon a proper request is also subject to judicial review. Human Rights Party v Michigan Corrections Comm, 76 Mich App 204; 256 NW2d 439 (1977). Neither purpose served by §63 of the APA would be promoted by allowing the petitioner to circumvent the procedures for obtaining a declaratory ruling. The formality imposed by the department’s rules for declaratory rulings, when followed, ensures that the department will treat requests for binding rulings with adequate care and deliberation. Circumventing the rules promulgated for declaratory rulings also hinders effective judicial review. Declaratory rulings are subject to judicial review in the same manner as agency final decisions or orders in contested cases. MCL 24.263; MSA 3.560(163). Judicial review of a final agency determination under the APA is limited to the record; the final decisions of an agency must include findings of fact and conclusions of law. Human Rights Party, supra. In the present case, there is no record from the administrative agency, and the circuit court had no way of ascertaining the merits of petitioner’s claims, absent the stipulation of facts by the petitioner and the respondent. Even with this stipulation, the circuit court was unable to examine the reasons for the agency determination, except for those advanced as post hoc rationalizations for its action. By pursuing the § 63 remedy, the petitioner could obtain administrative review of the department’s adverse ruling from the perspective of a complete record. In a very similar case, the Pennsylvania Supreme Court stated there was every reason to believe that this mechanism would permit full and fair review and added that courts should not presume futility in an administrative appeal but should assume " 'that the administrative process will, if given a chance, discover and correct its own errors.’ ” Canonsburg General Hospital v Dep’t of Health, 492 Pa 68, 74; 422 A2d 141 (1980). We conclude that the trial court did not have subject matter jurisdiction under § 63 of the APA since the petitioner, in fact, had not sought a declaratory ruling. We note that the claim of an exemption from state certificate of need requirements under the Public Health Code is an appropriate subject for a request for a declaratory ruling under the circumstances. It would be improper for the department to decline to issue a declaratory ruling on this matter upon a proper request. See Human Rights Party, supra. Unlike the determination that the petitioner’s proposal was subject to review under the state certificate of need program, a determination concerning exemption from review under § 1122 of the federal Social Security Act is not subject to judicial review under § 63 of the state APA. The main purpose of § 1122 (42 USC 1320a-l) is to ensure that federal funds appropriated under other subchapters of the Social Security Act (V, XVIII and XIX) are not used to support unnecessary capital expenditures. Another purpose is to support state planning activities with respect to health services and facilities, § 1122(a). The Secretary of Health and Human Services is directed by the statute to make an agreement with each state under which a designated planning agency will make findings and recommendations with respect to proposed capital expenditures for health care facilities in the state. In Michigan, the Department of Public Health has contracted to be the state’s designated planning agency. If the Secretary determines that a health facility has not received approval under § 1122, he shall reduce reimbursement to that facility for any amounts which are attributable to the unapproved capital expenditure for any period which he finds necessary to effectuate the purpose of that section of the statute. The Department of Health and Human Services is required under the statute to make and publish such rules and regulations as may be necessary for the efficient administration of the functions with which it is charged under § 1122. Section 1102, 42 USC 1302. In this connection, the Secretary has promulgated 42 CFR 100.101-100.109. Determinations of exemption from § 1122 review are governed by 42 CFR 100.103(d), which states: "A determination by a designated planning agency designated in the Agreement described in § 100.104 that a proposed expenditure is not a capital expenditure within the meaning of section 1122 of the Act and this subpart, or that it falls within the exemption described in § 100.103, or that it is otherwise not subject to review under section 1122 of the Act, shall be binding upon the Secretary. A determination by such an agency that a proposed expenditure is a capital expenditure subject to review under section 1122 and this subpart may be appealed, by the person proposing such expenditure, to the Secretary. Such appeal may be made at any time, in such form and manner as the Secretary may prescribe.” (Emphasis supplied.) This regulation clearly provides that appeal from a determination that a capital expenditure is subject to review under § 1122 is to be made to the Secretary of Health and Human Services. The department explicitly informed the petitioner that it could appeal the determination that the petitioner’s proposed addition was subject to the § 1122 review process to the Secretary in a letter dated June 25, 1979. We think this letter properly informed the petitioner of the only means by which it may appeal a determination of nonexemption from the § 1122 review process. As noted before, as regards a determination that a project is subject to review under § 1122, 42 CFR 100.103(d) provides that such a determination may be appealed from the designated planning agency to the Secretary. The federal regulations treat this type of determination very differently from a determination by a designated planning agency disapproving a proposal subsequent to review under § 1122. If a designated planning agency finds that a capital expenditure is unneeded, the party proposing a capital expenditure is entitled to a fair hearing with respect to the agency’s findings and recommendations by an agency or person other than the designated planning agency. Such agency or person hearing an appeal from the negative recommendation is to be designated by the governor of the state. 42 CFR 100.106(c)(2). State law may provide for judicial review of such a determination. 42 CFR 100.106(c)(4). The federal regulations governing the procedure for appealing a determination that a proposal is subject to review do not include any provision for state judicial review under § 1122 of the designated planning agency’s determination. Where provision has been made for state judicial review of the state agency determination, it is included specifically in the regulations. Section 1122 of the federal Social Security Act is a federal statute enacted in the exercise of Congress’s spending power. The federal government has undertaken to contract with state administrative agencies to fill a role in its scheme for spending federal money. Although the state’s designated planning agency plays a role in the federal statutory scheme, § 1122 of the Social Security Act is a statute which is "administered” by the Department of Health and Human Services and not by the state’s Department of Public Health. The state department’s determination was not a determination concerning a statute administered by that agency. It was, therefore, not subject to the provisions of §63 of the state’s APA and was not subject to review under that section. To appeal, the petitioner must address its challenge to the Secretary. In light of our interpretation of § 63 of the APA, it is unnecessary to consider whether the supremacy clause precludes state judicial review of administrative actions where those administrative actions are made pursuant to a federal statute which contains its own procedures for challenging agency determinations. Where the federal government has provided administrative procedures for challenging determinations involving its exercise of the spending power, those procedures should be assumed to be exclusive. Absent authorization in the federal statute (or regulations promulgated thereunder), it is extremely doubtful whether the Secretary of Health and Human Services would be bound by a state court judgment. See Palmetto General Hospital, Inc v Dep’t of Health & Rehabilitative Services, 333 So 2d 531, 533 (Fla App, 1976). In summary, the petitioner may seek a declaratory ruling and judicial review of a negative determination concerning its claim of exemption from this state’s certificate of need law. In the agency and in the courts, it may raise its claim of exemption under the statute and exemption due to the actions of the Department of Public Health. Even if it is found to be subject to review, the petitioner can, in such review process, raise its claims concerning fairness. Likewise, the petitioner can appeal the negative determination on its claim of exemption from § 1122 review to the Secretary of Health and Human Services. If the petitioner’s project is found to be subject to § 1122 review, it can again raise its claims concerning fairness before the Department of Public Health and any subsequent appeal therefrom. This Court is not convinced by the petitioner’s claims of a need for immediate judicial relief from arbitrary administrative action. The determination of nonexemption from § 1122 review was made in June of 1979. Exhibits introduced at trial show that the petitioner was aware of some doubts concerning its exemption from the state certificate of need act as early as May of 1979. The benefits to be derived from immediate judicial intervention in the administrative process are not as great as the detriments which might be suffered if this Court adopts a rule routinely allowing procedures validly promulgated by administrative agencies to be circumvented. In light of our decision, we need not rule on the merits of Livingston Care’s claim of a right to intervene in the circuit court action. See, however, D’Agostini v City of Roseville, 396 Mich 185; 240 NW2d 252 (1976). Reversed and remanded for proceedings not inconsistent with this opinion. No costs, a public question being involved. Allen, P.J., concurred.
[ -28, 3, -36, 34, 3, 41, 24, 9, -23, 29, -5, -24, 21, 40, -13, -6, -21, 44, 15, 48, -6, 47, -31, 42, -24, 22, 29, -13, -9, -17, -23, -48, -46, -12, -10, -4, 19, 49, 32, 37, -4, -37, -28, -5, -67, -5, 28, 64, 34, 39, -6, 12, 2, 13, -33, 2, -6, -32, 11, 0, -45, 3, 0, -16, 9, 71, -9, 4, 0, -30, -6, 11, -19, -47, 62, -28, 26, -32, -17, -9, 25, 25, 32, -35, -42, 34, 24, 7, 46, 25, -47, -108, -28, -7, -8, 32, -36, -23, 77, -14, -53, 45, 29, 29, -2, 44, 2, -26, -13, 33, 19, -77, -49, -29, 0, 42, -4, 50, 7, -1, -19, 34, 35, -13, 38, 31, 84, -32, -51, 41, 50, -41, -37, -3, 3, 3, 74, 5, 24, -2, -50, 54, -1, -37, 3, 16, -80, -32, -30, 10, -13, 53, 32, 40, -39, 27, -5, -16, 15, -31, -6, -15, -12, 0, 0, -43, -24, 71, 10, 23, 0, 57, 8, 8, -5, 19, 20, -37, -60, 29, -51, -31, -17, -5, -21, -6, 32, -37, -68, -12, -41, -30, 0, 52, -33, 29, -7, 32, -37, 30, -56, 27, 0, -39, 0, -8, -4, -87, -27, 1, -3, 14, -52, -12, 6, -2, 27, 43, -4, 30, -20, 49, 22, 18, -4, -8, 28, -36, -4, -65, 39, 44, 48, 68, -27, 23, 30, 28, 33, 80, -7, 63, -17, -54, -43, -27, -29, -6, -48, -2, 6, 23, -16, 53, -11, -22, -6, -8, 15, -8, 59, -4, -37, -29, 6, 27, -58, 1, 12, 3, -20, 45, 11, -61, -29, -2, 3, -40, 39, -11, -16, 1, 8, -28, 13, 13, -2, -20, -12, -4, 16, -8, 4, 14, 44, 5, 39, 24, -47, -17, -33, 14, 17, -31, -34, 15, -42, 32, 17, -21, 14, -15, 9, -21, -49, -63, -70, -66, -12, -2, -10, 31, -30, -8, -25, -7, 2, -56, 49, -2, -8, 16, 32, -28, 73, 30, -43, -13, -20, 41, 73, 47, 30, -35, 6, 50, -10, 27, 1, 29, 20, 38, -5, 41, 22, 35, -43, -30, -51, 61, 10, -1, -22, -70, -41, -9, 20, -8, 13, 26, -4, -53, -4, -2, -47, -23, 16, 17, 7, -3, -43, -23, 2, 2, 6, 44, -32, 66, 20, -3, 27, -75, -8, 1, 33, -7, 37, -19, 15, -22, 25, 18, -25, 26, 14, 19, 25, -36, 4, 37, -46, -40, 10, -18, -22, 12, 22, 0, -6, -21, -17, -1, -50, -42, 6, -54, -23, -10, -40, 30, -59, -24, -1, 16, -21, 60, -5, -49, -31, -1, -61, 4, 3, -19, 7, -16, 15, 20, -13, -28, 7, 59, -18, -26, 6, 6, 21, -13, 4, -20, 5, 41, -36, -37, 38, 19, -55, 34, 56, -41, -67, 27, 44, -28, 3, -4, -4, 34, -6, 33, 22, -1, -24, 7, 14, 42, -28, 56, -36, -5, 39, 1, -48, 11, -7, -6, 22, -7, -14, 79, -31, 29, -18, -1, 33, -22, 7, 27, 17, -8, -40, 18, 3, 49, -31, 41, 48, -11, -32, 6, 27, 27, -48, -31, -6, 24, -20, 31, 20, 1, 12, -18, 34, 12, -63, 6, 6, 7, 26, -23, -13, 10, -21, 23, 33, -1, -2, 2, 11, -40, -1, 25, 3, 35, -20, 2, 42, 11, 38, 34, -21, 28, 18, 34, 12, 23, 1, -31, 20, 16, -26, 26, -27, -23, 2, -7, -23, -19, -9, -19, 65, -2, 20, -63, -2, 7, 22, -20, 28, -56, -46, 0, -21, 18, -22, 19, -2, -39, -17, -15, -46, 1, -4, -5, 0, 34, -5, 23, -13, -19, -49, -20, 14, -15, -34, -2, 11, 27, 23, 6, -22, -1, 8, -11, 27, 15, -5, 37, 6, -15, 15, 16, 48, -57, -6, 7, 1, 18, 15, -5, -55, 7, -53, 39, -44, -49, 56, -37, -10, 13, 17, 78, -33, 7, 17, 58, 60, -27, -7, -32, 26, -21, 6, 21, -20, -22, 63, 6, -5, 31, 11, 53, -20, 83, 1, -25, 0, -8, 6, -17, -25, 23, -8, -12, -37, 10, 27, -4, 32, -15, -22, 4, 7, -52, 54, -53, -63, 11, 18, 80, -1, 59, -36, -20, -19, -2, -24, -51, -30, -21, 3, -35, -21, -4, 14, 24, -17, 4, 55, -16, -8, -48, -28, -14, 22, -4, 48, -7, 3, 0, -67, 29, -30, 34, 29, 1, -21, -3, -25, -35, 62, 58, 0, 16, -5, -11, -5, 11, -60, 9, 24, 29, -30, 4, -51, -31, 9, 26, 33, 36, -9, -9, -12, 16, 0, -22, 13, -11, 17, 58, 37, 56, 10, -69, 1, -40, 21, -48, -39, -17, -13, -38, 55, 9, -9, -48, 11, -32, -26, -35, -12, 5, 17, -31, 39, 14, 9, 34, 0, -50, 6, 44, 0, 36, -6, 29, -45, -3, -26, 16, -19, 5, 24, 2, -3, -68, -27, 9, -26, -21, 24, 26, -37, -27, 49, -28, 26, 11, 5, -12, 32, 34, -57, -5, 12, 2, 11, 87, 39, 0, -48, 7, 41, -16, -21, -16, -3, -38, -14, 48, -23, -14, 23, 10, 82, 24, 21, -66, 8, 3, 95, 6, 0, -4, -49, 17, -45, -25, 26, -12, 10, 2, -36, -4, 6, 4, -48, -15, -10, -55, 44, -52, -21, 19, 22, -15, -7, 19, -11, 10, -1, 29, -29, 16, -14, 27, 22, 43, 16, -45, -26, 31, 29, -34, 0, 36, 5, -19, -32, 6, -62, 14, -8, 9, -32, -6, -16, -57, 0, 11, 3, 38, -3, -4, -11, -12, -18, 45, -19, 29, -14, -30, -32, 54, 5, -51, 23, -13, 0, -19, 29, -47, 7, -30, -26, 1, 12, -18, -15, -20, 2, -32, 13, -37, -21, -22, 8, 5, 14, -8, -30, 23, 27, -14, -11, -6, 4, -12, 13, 20, 4, 0, -3, -6, 2, -3, -35, -18, 26, 46, 8, -49, -16, 15, -61, 30, 34, 42, -25, -13, 68, -13, 17, -25, -6, 32, -46, -18, 25, 48, 18, -12, -6, -2, 17, -16, 20, -83, -11, 26, 18, 17, 30, -36, 10, -29, -8, -16, -51, -10, 2, -12, 6, 18 ]
D. C. Riley, J. This appeal stems from a products liability action originally filed by Mr. Pritts against Mi-Jack Products Company and Drott Manufacturing Company, a division of J. I. Case Company, for injuries sustained in an industrial accident on August 9, 1973. The accident occurred when a co-employee drove a travel lift over plaintiffs legs while both were working for their employer, Ragnar-Benson Company. It is undisputed that the travel lift was manufactured by Drott in 1971 pursuant to an order by Mi-Jack, one of its dealers. Mi-Jack leased the travel lift to American Prestressed Concrete Company, a firm engaged in the manufacturing of prestressed concrete components for Ragnar-Benson. In 1972, when American Prestressed encountered financial difficulties, it became controlled by Ragnar-Benson, who assumed its management and obligations. On June 20, 1973, Ragnar-Benson and Mi-Jack entered into a lease agreement for the travel lift, using a form drafted by Mi-Jack, which contained the following indemnification clause: "Lessee agrees that Lessor shall not be held responsible for any loss or damage to Lessee, its customers, or any third parties, caused by failure of the Equipment covered by this lease to function in whole or in part. Lessee shall indemnify Lessor against, and hold Lessor harmless from any and all claims, actions, suits, proceedings, costs, expenses, damages and liabilities, including attorney’s fees, arising out of, connected with or resulting from the Equipment, including without limitation the manufacture, selection, delivery, possession, use, operation or return of the Equipment * * (Emphasis added.) Ragnar-Benson’s agent signed the lease, admittedly without reading the indemnification provision. According to his trial testimony, he knew all equipment leasing agreements contained such clauses, and he was more interested in the lease’s description of the equipment and its price. The major issue on appeal is whether or not the indemnification clause can be construed to protect Mi-Jack, the indemnitee, from its own negligence. The trial of Pritts’ claims began as a jury trial. Pritts claimed that Mi-Jack was negligent by leasing the travel lift without certain safety devices. The evidence showed that, from 1972 until well after the time of the accident, the lift had been in the possession and control of Ragnar-Benson. Dur ing the trial, Mi-Jack, contending that the indemnity clause in the lease applied and that RagnarBenson would, therefore, be liable for Mi-Jack’s negligence, tendered the defense to Ragnar-Benson and notified it of an impending settlement. Upon Ragnar-Benson’s refusal to defend the claim, Mi-Jack settled the claim against it for $350,000. American Prestressed and Drott also settled the claims against them. Following the settlement, the jury was excused and the remaining issues were tried by the judge. The judge ruled that Mi-Jack’s settlement with plaintiffs was reasonable and based upon Mi-Jack’s potential liability. The judge further ruled that the indemnity provision was ambiguous and that, although Mi-Jack intended to be indemnified for injuries occurring when the travel lift was out of its control, there was no intent that Mi-Jack was to be indemnified for its own negligence. In short, the judge was not convinced that the language of the indemnity clause clearly and unequivocally indemnified Mi-Jack for its own negligence. Mi-Jack appeals that ruling as of right. The interpretation of indemnification provisions purporting to absolve a party from liability for loss caused by its own negligence has "traditionally plagued both drafters and courts alike”. Levine v Shell Oil Co, 28 NY2d 205; 269 NE2d 799 (1971). The Levine Court succinctly stated the reasons why indemnification clauses have caused so much difficulty. _ "Since one who is actively negligent has no right to indemnification unless he can point to a contractual provision granting him that right, a rule has evolved under which courts have carefully scrutinized these agreements for an expression of an intent to indemnify and for some indication of the scope of that indemnification.” Levine, supra, 211. In Michigan, the rule appears to be that broad, all-inclusive indemnification language may be interpreted to protect the indemnitee against its own negligence if such intent can be ascertained from other language in the contract, surrounding circumstances, or from the purpose sought to be accomplished by the parties. Vanden Bosch v Consumers Power Co, 394 Mich 428; 230 NW2d 271 (1975). In Vanden Bosch, Ferro-Cast had agreed to indemnify Consumers Power against loss "arising in connection with or as a direct or indirect result of a location of such building under the transmission and/or distribution line wires of said second party”. This Court ruled that it was "only a matter of inference as to whether or not the agreement covers the negligence of the indemnitee” and that "[s]ince the agreement did not specifically state that it covered the negligent acts of the indemnitee” held that the trial court was correct in ruling that indemnification should not be permitted. Vanden Bosch v Consumers Power Co, 56 Mich App 543, 559; 224 NW2d 900 (1974). The Michigan Supreme Court reversed, however, holding that: "Although not 'expressly stated in the agreement, we are persuaded from our reading of that agreement, in light of the surrounding circumstances, that the parties intended that Consumers Power be indemnified against liability for its own negligence * * *.” 394 Mich 428. Before turning to the indemnity clause at issue in the present case, we note several well-established rules of construction. An indemnity contract is construed in accordance with the rules for the construction of contracts generally. Meadows v Depco Equipment Co, 4 Mich App 370; 144 NW2d 844 (1966). The cardinal rule in the construction of indemnity contracts is to enforce them so as to effectuate the intentions of the parties. Title Guaranty & Surety Co v Roehm, 215 Mich 586; 184 NW 414 (1921). Intention is determined by considering not only the language of the contract but also the situation of the parties and the circumstances surrounding the contract. Id. Indemnity contracts are construed most strictly against the party who drafts them and against the party who is the indemnitee. Gartside v Young Men’s Christian Ass’n, 87 Mich App 335; 274 NW2d 58 (1978), Fireman’s Fund American Ins Cos v General Electric Co, 74 Mich App 318; 253 NW2d 748 (1977). It has also been said of the construction of indemnity contracts that in order to be effective, the terms must be unequivocal. Hayes v General Motors Corp, 106 Mich App 188; 308 NW2d 452 (1981). See generally 41 Am Jur 2d, Indemnity, §§ 13-15, pp 697-702. The findings concerning intent are factual and may not be reversed on appeal unless clearly erroneous. GCR 1963, 517.1. A finding is clearly erroneous where, although there is evidence to support it, the reviewing court considering the record as a whole is left with the definite and firm conviction that a mistake has been committed. Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976). Although the indemnity clause at issue did not go so far as to explicitly say that the indemnitee should be held harmless from its own negligence, we are of the opinion that the clause as written should have put any indemnitor reading it on notice that this was its purpose. The clause clearly states that the lessor "shall not be held responsible for any loss” and that the "lessee shall indemnify lessor against, and hold lessor harmless from, any and all claims, damages * * * including without limitation the manufacture, solicitation, delivery, possession, use, operation or return of the equipment * * *”. (Emphasis added.) As the Court held in Laudano v General Motors Corp, 34 Conn Supp 684; 388 A2d 842, 845 (1977): "[T]here cannot be any broader classification than the word 'all’. In 'its ordinary and natural meaning, the word "all” leaves no room for exceptions.’ ” (Citations omitted.) That the instant clause was intended to indemnify Mi-Jack from even its own negligence is buttressed by the examples following the phrase "without limitation”: manufacture, selection, and delivery. The manufacture, selection, and delivery of the travel lift are all activities that would most probably be attributable to the lessor-indemnitee Mi-Jack and not to the potential lessee-indemnitor. We believe that to construe the clause otherwise would render much of the language employed a nullity, a result the parties surely did not intend. This interpretation is consistent with the rule of construction that an indemnity agreement should be construed so as to give reasonable meaning to all its provisions, a result which is preferable to one that leaves part of the language useless or inexplicable or creates surplusage. Herchelroth v Mahar, 36 Wis 2d 140; 153 NW2d 6 (1967). As in Vanden Bosch, supra, we concede that the indemnity clause did not "expressly” state that Mi-Jack would be held harmless from its own negligence. 394 Mich 428. We believe, however, that the clause in the instant case expresses that intent more clearly than did the clause in Vanden Bosch. In short, we believe that we would be exalting form over substance to hold, as RagnarBenson asks us, that the only language which will shield an indemnitee from its own negligence is language which states that an "indemnitee shall be indemnified for its own negligence”. While the suggested language well may be preferable, we believe the difference between the language used and that suggested is largely one of semantics. Our reading of the lease agreement and consideration of the surrounding circumstances reinforces our conclusion that the trial judge erred. Ragnar-Benson’s agent who signed the lease agreement testified that he was aware of the fact that such agreements commonly contain indemnity clauses but that he was not concerned with such details. In fact, he signed the lease without even reading the indemnity provision. It is a basic principle that a party who has not read the contents of a contract before signing it may not claim that his intention was different from that stated in the writing. See Komraus Plumbing & Heating, Inc v Cadillac Sands Motel, Inc, 387 Mich 285, 289-291; 195 NW2d 865 (1972). In the present case, a summary of the evidence of the indemnitor’s intent is that (1) it was aware that an indemnity clause was probably contained in the lease, (2) it was not concerned with that fact, and (3) it signed the lease without reading the indemnity provision. The evidence of Ragnar-Benson’s intent, therefore, is consistent only with a willingness to accept the terms of whatever indemnity clause was offered by the lessor. Concerning the lessor’s intent, the trial judge determined that Mi-Jack intended only to shield itself from liability which was caused while the equipment was out of its control but that it did not intend to be protected against its own negligence. Our previous analysis of the indemnity clause, when coupled with a review of Mi-Jack’s testimony, leads us to conclude that the trial court’s ruling was clearly erroneous. There was testimony, for example, that Mi-Jack intended the clause to cover any liability which arose when the machine was being used, whether or not the use caused the injury. In addition, Mi-Jack’s agent testified that whether the liability was attributable to the manufacturer’s fault, the customer’s fault, a third party’s fault, or its own fault it was Mi-Jack’s intent that the indemnity agreement would apply. To summarize, we conclude that the language of the clause supports the inclusion of Mi-Jack’s negligence within the broad, all-inclusive language of the indemnity agreement. See Jacksonville Terminal Co v Railway Express Agency, Inc, 296 F2d 256 (CA 5, 1962), Laudano, supra, Levine, supra. Further, to the extent that the intent of the parties is relevant, it is clear that Ragnar-Benson intended to accept whatever language was offered by the lessor and that Mi-Jack’s intent was to be held harmless from even its own negligence. Having concluded that the trial judge erred in not giving effect to the indemnity clause, we must decide whether Ragnar-Benson is entitled to a hearing concerning the reasonableness of the settlement between Mi-Jack and the principal plaintiffs. In Ford v Clark Equipment Co, 87 Mich App 270, 276-278; 274 NW2d 33 (1978), this Court held that in order to establish a claim for indemnity only potential liability need be shown by an indemnitee who tenders the defense and a notice of settlement to an indemnitor prior to settling a claim. Basing its decision on the sound public policy of encouraging settlements, the Ford Court held that the indemnitee is required to show that the settlement was reasonable and that reasonableness, in turn, depends on the amount paid in settlement in light of the risk of exposure, which the Court defined as the probable amount of judgment if the original plaintiff were to prevail at trial. The Ford case suggests that the issue of reasonableness is subject to proof. The present action began as a jury trial, but it was aborted when settlements were reached. Based upon the evidence which Pritts had produced, the trial judge ruled that Mi-Jack was potentially liable to Pritts and that the settlement was reasonable. Ragnar-Benson felt that the amount of the settlement was too high and offered to prove that Pritts likely would have lost the job which he held at the time he was injured. It appears, therefore, that the only objection was to the amount of the settlement and not to the probability of Mi-Jack’s liability. Although the court may have erred in not considering the proffered evidence, on this record we deem any error to have been harmless. The accident at issue was very serious, causing plaintiff to lose one leg completely while incurring serious and permanent injury to the other. We cannot say that the court erred in concluding that the amount of the settlement was reasonable in light of the injuries sustained, especially since it heard the proofs adduced by plaintiffs at trial. See Pippen v Denison Division of Abex Corp, 66 Mich App 664; 239 NW2d 704 (1976). Ragnar-Benson’s next contention is that the indemnity provision violates MCL 691.991; MSA 26.1146(1) which provides: "A covenant, promise, agreement or understanding in, or in connection with or collateral to, a contract or agreement relative to the construction, alteration, repair or maintenance of a building, structure, appurtenance and appliance, including moving, demolition and excavation connected therewith, purporting to indemnify the promisee against liability for damages arising out of bodily injury to persons or damage to property caused by or resulting from the sole negligence of the promisee or indemnitee, his agents or employees, is against public policy and is void and unenforceable.” (Emphasis added.) This statute embodies the public policy that, in the building and construction industry, provisions in an agreement which seek to indemnify an indemnitee from recovering for his sole negligence are void. See Robertson v Swindell-Dressler Co, 82 Mich App 382; 267 NW2d 131 (1978), lv den 403 Mich 812 (1978). The question before us is whether or not contracts for the sale or lease of equipment to contractors are within the statute. Ragnar-Benson has not cited, nor can we find, any cases in which the statute has been held to apply to equipment suppliers such as Mi-Jack. Although it could be argued that the instant lease was "relative to” construction because the lift truck would be used in construction, we refuse to extend the statute that far. The language of the statute suggests that it is addressed to construction contracts which call for the construction or repair of a building. Had . the drafters of the statute desired, they specifically could have included suppliers of those engaged in construction within the ambit of the statute. They failed to do so. Since the statute is an exception to the general rule that indemnity contracts purporting to absolve the indemnitee from liability for his own negligence are not against public policy, 13 Callaghan’s Michigan Civil Jurisprudence, Indemnity and Contribution, § 13, p 212, we believe that the statute should be construed narrowly and that it is inapplicable in the present context. We have reviewed Ragnar-Benson’s evidentiary claim and find it to be without merit. The contention is that the trial judge erred by excluding evidence of a purchase order which Ragnar-Benson claimed to have returned with the signed lease agreement and which purportedly contained an indemnity clause in favor of Ragnar-Benson. Our first observation in this regard is that the Mi-Jack lease agreement was admitted during trial without objection. The lease was signed by representatives of both Mi-Jack and Ragnar-Benson on June 20, 1973. Ragnar-Benson’s purchase order, which was signed only by Ragnar-Benson, was dated November 20, 1973. Ragnar-Benson’s contentions rest entirely on the application of MCL 440.2207; MSA 19.2207 which governs those cases in which an offeree’s acceptance or confirmation of an offer contains additional or different terms from those offered or agreed upon. Initially, we note that UCC § 2-207 is potentially applicable here since, although the contract at issue is labeled a lease, a clause in the contract provides that "at the end of 33 months rental, the machine becomes the property of Ragnar-Benson Corp., provided all 33 payments have been made”. Since the contract contemplates the passing of title from the "seller” to the "buyer” for a price, MCL 440.2106; MSA 19.2106, the contract may be viewed as a sale. While potentially applicable, we are convinced § 2-207 does not apply in the instant case. That section does not permit one party to send a written confirmation (or purchase order form) which varies the terms of an original written agreement which has been signed by both parties. See American Parts Co, Inc v American Arbitration Ass’n, 8 Mich App 156, 174; 154 NW2d 5 (1967). We agree with Mi-Jack’s contention that the fact that Ragnar-Benson, at a later date, produced an unsigned purchase order cannot change the original agreement made by the parties. To the extent that Ragnar-Benson is arguing that its purchase order was returned to Mi-Jack simultaneously with the lease and not after, the court did not err in excluding the proffered evidence since its admission would have violated the parol evidence rule. See Union Oil Co of California v Newton, 397 Mich 486, 488; 245 NW2d 11 (1976), Michigan National Bank of Detroit v Holland-Dozier-Holland Sound Studios, 73 Mich App 12, 14-17; 250 NW2d 532 (1976). Because the lease in the present case contains both parties’ signatures, and because both signatures bear the date of June 20, 1973, the judge found that the lease embodied the full and complete agreement of the parties and that the purchase order was not part of the agreement. Since the proffered evidence contained a date inconsistent with and contrary to the date written on the lease, it properly was ruled inadmissible. Ragnar-Benson’s final claim is that if it is contractually obligated to indemnify Mi-Jack, as we have ruled it is, that it should be entitled to common-law indemnification from Mi-Jack. This claim finds no support in law or logic. In Minster Machine Co v Diamond Stamping Co, 72 Mich App 58, 61-62; 248 NW2d 676 (1976), this Court stated that common-law indemnification rests upon the equitable principle of restitution. The party seeking indemnification must be without fault and its liability must arise solely by operation of law. Liability imposed by a contract of indemnification does not arise by operation of law. A party subject to liability based upon a contract of indemnity, therefore, cannot seek common-law indemnity because its liability does not arise by operation of law. Affirmed in part and reversed in part. Costs to appellant. Prior to trial, Mi-Jack had filed a third-party claim against Ragnar-Benson seeking indemnity pursuant to the terms of the lease agreement. Ragnar-Benson filed a counterclaim against Mi-Jack and Drott. Mi-Jack and Drott also filed cross-claims against each other. Pursuant to the settlement, the cross-claims involving Mi-Jack and Drott were dismissed, leaving Mi-Jack’s indemnity claim against Ragnar-Benson and Ragnar-Benson’s counterclaims against Mi-Jack and Drott as the only issues to be decided.
[ -14, 9, 51, -4, 16, 29, -2, -48, -18, 21, 1, 20, 30, -25, -10, 47, 14, 28, -61, -6, 30, -16, 13, -37, 13, -58, 21, -38, 10, 12, 13, 2, 28, 25, -51, 37, 20, 58, 16, -17, 0, 89, 50, -45, 22, 21, 0, -39, 59, -25, 12, -8, 39, -9, -8, -19, -19, -1, -1, 82, -15, -17, 40, 1, 20, -21, 33, 24, 7, -20, -5, 39, 19, -24, -2, -17, 8, 93, -17, -71, 10, 36, 33, -13, -47, 13, -41, 36, -50, -16, -53, 0, -14, 20, -42, 11, -51, 9, -46, -10, -38, -37, -8, 11, -9, -11, -8, -22, 29, 35, -4, 15, -41, -11, 19, -75, 50, 8, 9, 36, 11, 8, 19, 8, -17, 6, 25, -31, -8, 31, 11, 15, -27, 67, 7, 1, 43, -6, -30, 43, 4, 70, 47, 3, -48, 65, -60, 14, -36, -23, -22, 21, 16, 4, 26, -6, 0, 18, 4, -39, 22, -45, 27, 14, 4, -54, 34, 8, 34, 6, 24, -10, -3, -15, 48, 29, 47, 10, -37, -12, -3, -35, 45, 5, -32, -13, 44, 25, -15, -7, 16, -36, -23, 40, -57, 0, -26, -1, -24, -3, 26, -49, -7, 0, 45, 12, -22, 13, 25, -31, 18, 24, 26, -70, -45, 10, -10, 21, 13, 8, -27, -11, -11, -36, -68, -21, -11, -14, -16, 0, -53, -4, 42, 29, 25, -77, -16, -54, 66, -3, 83, -12, -47, -38, 1, -71, -12, -32, 7, 5, -24, 5, -21, -23, -41, -28, 3, -5, -24, 6, -6, -2, -13, -3, 74, -10, -12, 7, -66, 0, 13, 27, 27, 8, -31, -46, -40, 17, 44, -41, 23, -40, -25, 3, 14, 57, 11, 13, -46, -3, 73, 6, 22, -6, 50, 47, -6, -25, -50, 35, -37, -9, -14, -3, 51, 36, -54, 14, -14, -16, -17, -61, 17, -30, 16, -10, 16, -2, 11, -27, -26, 73, 5, 32, -19, -7, 2, -12, 52, 17, -2, -33, -12, 19, 3, -14, 58, -15, -47, -16, -48, 69, 28, -22, -50, 22, 48, -12, 30, -32, -14, -14, -14, -25, 18, 14, 35, -33, -22, 27, 36, -48, -56, 9, 17, -14, -33, 34, 0, -8, -12, 23, -17, -2, -2, -63, -44, 48, 9, 10, -22, -13, -3, -36, -16, -40, -30, -13, -74, 51, -70, -5, 0, 15, -22, -10, 19, -7, -41, 18, 12, 46, -28, -47, 21, -58, 47, 29, -23, -46, 10, -19, -5, 20, -47, -12, 99, -29, -13, 20, 25, 22, -42, -42, 42, -9, 28, -29, 0, -8, -10, 16, 41, 0, -8, -2, 3, -10, -12, -10, -18, -26, -25, 1, -32, 9, -37, 70, 68, -38, 11, 54, 4, 27, -22, 42, 4, 7, 15, 0, 46, -37, 46, 7, 6, -31, 47, 1, 5, 4, 19, 9, 54, 9, -26, -23, 34, -4, -33, -8, -46, 15, 13, -43, -23, -33, 48, 14, 21, 68, 31, 62, -30, -17, -28, -7, -32, 10, 13, -2, -47, 4, 6, -11, 34, 26, 31, -18, -40, 31, -2, -24, 19, 97, -7, 6, 3, -39, -25, 6, 1, -12, -21, 32, -7, -10, 0, 31, 11, 14, 44, -4, 35, -70, -79, 22, 20, -26, -38, -41, 34, 24, -1, 1, -23, -33, -9, -24, -7, 3, -11, -9, 31, 37, 3, 1, 8, 50, -8, -15, -18, 70, 7, 17, 1, -3, -26, -35, 50, 0, -81, 31, 46, 0, -5, 26, -7, -14, -49, -16, -31, 8, -14, -25, -51, 7, 1, 35, 30, -26, -36, 35, 37, -21, 33, 7, 15, 3, 26, -35, -42, -6, -42, 8, -17, -27, -39, -9, -6, -39, 8, -43, -5, -24, -7, 0, 18, 17, 63, 33, -39, -1, -17, -1, -25, 11, -27, -53, 21, -2, -34, -19, -126, 31, 40, 13, 12, 32, 33, -3, 8, 10, 6, -47, -24, -101, 13, 33, 22, 38, -19, 29, 56, -7, -11, 36, -60, 9, -13, -16, -27, -6, 22, 47, 8, 36, -20, -43, -17, 0, 22, 14, 15, 17, 43, 3, -58, 3, -41, 50, -11, -24, 32, -15, -12, 31, 36, -18, 11, -15, -35, 33, -5, -16, 0, 8, 21, -15, -1, -12, -13, 4, 20, 40, 3, 29, -37, 7, -26, 51, 41, 9, 6, -3, 22, 75, -20, -8, -29, -73, 0, -36, -11, -13, 14, 23, 18, 64, -27, -15, -33, -38, -17, 3, -31, 37, -15, -62, 44, 22, 48, 36, 14, 27, -36, 12, -14, 27, 26, -36, -31, -45, 14, 12, 2, -19, 2, 18, -35, 25, -9, 5, -2, -33, -12, 8, -4, -36, 47, -53, -10, 47, -4, -51, 14, -1, 50, -2, 11, 29, -9, -36, 38, 38, 0, 7, 39, 24, 52, 8, 22, 18, 16, 13, 20, -6, 9, 47, -42, -22, 1, 16, -37, -2, -70, -72, 23, -11, 32, -10, 12, -50, -9, 8, 38, 20, -18, 46, -9, 41, -7, 60, -80, -3, 24, -21, -32, -5, 10, -12, 35, -22, -27, 11, 26, 1, 14, -9, 48, -35, 17, 25, 7, 35, 31, -35, -9, -4, -10, 24, 2, -16, -10, 16, -15, 30, -16, -24, -23, 31, -25, -46, -53, 62, -44, -39, -17, 28, -21, 2, 34, 18, 40, 36, -28, 39, -44, -21, 50, 18, 13, 6, 0, 26, -23, -34, 39, 8, 51, 6, -39, -10, -19, 2, 24, -36, 46, -14, 26, -52, -13, 26, -20, 58, -3, 3, -5, -61, -42, -4, 4, -36, 18, 11, -17, 41, -16, 59, 35, 33, -11, -45, -21, -40, -67, 40, -9, 19, 14, 58, 3, -30, -7, 23, 30, -42, -81, -6, -48, 20, 10, -4, -29, 34, 8, -47, 35, -25, -26, 14, 4, 5, -56, -1, 7, 11, -30, -3, -9, 17, -7, 7, -22, 7, 23, -35, -27, -44, 6, -44, 24, 15, -48, -46, 12, 12, 0, 5, -52, 10, 23, 8, -11, 13, 28, -26, 33, 22, -21, -7, -7, 5, 0, 10, -7, -22, 10, 48, 21, 13, 11, -18, -18, 19, -1, 61, -6, -14, 11, 30, 19, -13, -67, -56, -4, 74, -16, -49, 26, -35, 50, -49, -52, -22 ]
D. E. Holbrook, Jr., P.J. Defendant appeals as of right from an order of summary judgment entered against it pursuant to GCR 1963, 117.2(3). The facts are not is dispute. Plaintiff was a Detroit police officer and, by virtue of her employment, became a member of the Policemen and Firemen Retirement System for the City of Detroit. The Policemen and Firemen Retirement System is a municipally chartered pension system whose purpose is to provide retirement allowances and death benefits for policemen and firemen. Part of the pension system includes provisions relative to duty disability retirement benefits. The charter vests defendant with the administration, management and responsibility for proper operation of the pension system. Plaintiff alleges that she was totally incapacitated by an injury suffered in the performance of her duties. The plaintiff applied for a duty disability retirement pursuant to Article VI, Part B, § 1 of the pension plan. Detroit Charter, Title 9, ch 7, art VI, part B, § 1. Section 1 reads in pertinent part: "If a member shall become totally incapacitated for duty by reason of injury, illness or disease resulting from performance of duty and if the Board of Trustees shall find such injury, illness or disease to have resulted from the performance of duty, on written application to the Board of Trustees by or on behalf of such member or by the head of his Department such member shall be retired; provided, the Medical Director, after examina tion of such member, shall certify to the Board of Trustees his total incapacity.” According to the provisions of the city charter, plaintiff was sent to the medical director for an evaluation of her disability. The medical director certified the plaintiff’s disability and recommended a duty disability retirement. The Board of Trustees initially granted plaintiff a duty disability pension. The defendant reconsidered its decision and, pursuant to the city charter, referred the matter to a three-member Medical Board of Review. Each member of the Medical Board of Review examined plaintiff, reviewed her entire pension file and issued a medical report. The doctors never met collectively. The Medical Board of Review submitted a majority opinion to defendant finding that plaintiff’s disability was not causally related to her employment. Since the opinion of the Medical Board of Review is final and binding as to medical findings, the defendant denied plaintiff a duty disability pension. Plaintiff filed a complaint in circuit court alleging that the Medical Board of Review acted in a manner inconsistent with due process requirements because it did not meet collectively to determine whether the plaintiff’s disability was related to her duties as a police officer. Plaintiff filed a motion for summary judgment pursuant to GCR 1963, 117.2(3) arguing that there was no dispute as to any material facts. The trial judge granted plaintiff’s motion and vacated defendant’s adoption of the Medical Board of Review’s findings. The trial court ordered that a new Board of Review be selected and that this new board meet collectively before submitting an opinion to the defendant. The charter provision directly involved in the instant case is Title 9, ch 7, art III, § 12(c), which reads in pertinent part: "If the Board of Trustees, any member, any beneficiary or any other person claiming benefits hereunder, shall disagree with any medical finding of the Medical Director, the Board of Trustees on its own motion may or on petition of any such member, beneficiary or person claiming benefits hereunder, shall refer the matter in dispute to a Medical Board of Review consisting of three physicians or surgeons, of whom one shall be named by the Board of Trustees, one by the affected member, beneficiary, or other person claiming benefits, and the third by the two so named. * * * The Board of Review shall promptly examine the medical findings in dispute and shall within sixty days from its appointment file with the Board of Trustees a written report of its findings, which shall be final and binding as to the medical findings.” The sole issue on appeal is whether the trial court erred in construing the charter provision above quoted to mandate that the Medical Board of Review meet collectively. We hold that the clear and unambiguous language of the charter requires no collective meeting. In construing provisions of a city charter the general rules recognized in cases involving the interpretation of statutes are applicable. Brady v Detroit, 353 Mich 243; 91 NW2d 257 (1958). These rules of construction have been set out in Charter Twp of Pittfield v Saline, 103 Mich App 99, 104; 302 NW2d 608 (1981), as follows: "* * * if the statute is unambiguous on its face, we will avoid further interpretation or construction of its terms. Detroit v Redford Twp, 253 Mich 453; 235 NW 217 (1931). However, if ambiguity exists, it is our duty to give effect to the intention of the Legislature in enacting the statute. Melia v Employment Security Comm, 346 Mich 544; 78 NW2d 273 (1956). * * * Further, specific words in a given statute will be assigned their ordinary meaning unless a different interpretation is indicated. Oshtemo Twp v Kalamazoo, 77 Mich App 33, 39; 257 NW2d 260 (1977), MCL 8.3a; MSA 2.212(1).” The language of the charter is not ambiguous, and, being specific, is controlling. The framers of the charter, and the people of the City of Detroit in its adoption, must be presumed to have intended that the provision be construed as it reads. Kelly v Detroit, 358 Mich 290; 100 NW2d 269 (1960). In adopting their charter the people of Detroit set out in definite language the procedure to be observed with reference to applications for duty disability benefits for the city’s policemen. As part of this procedure the method for determining medical questions is specified. This procedure was followed in the instant case. The city’s charter does not specify any quorum requirements, meetings of the full board or any other language which would require that the Medical Board of Review meet collectively. This provision of the charter is unambiguous so we decline to interpret the referral of a disputed medical matter to the Board of Review as requiring collective meetings of that board. Plaintiff contends that the ordinary meaning of the term "board” includes a deliberative body that must collectively meet and confer. We can find no cases that support the meaning asserted by plaintiff. This may be the result of express language which does not require statutorily created boards to meet and confer collectively. Words giving authority to three or more persons are construed as giving such authority to a majority of such persons unless the law giving the authority expressly declares otherwise. MCL 8.3c; MSA 2.212(3). It may be assumed that the people of Detroit in adopting the charter recognized the administrative difficulty in getting the three physicians, constituting the Board of Review, to adjust their schedules so that they could meet as a group. Lastly, plaintiff argues that principles of fundamental fairness require that the members of the Medical Board of Review have the opportunity to meet and confer collectively. In this manner one member has an opportunity to present relevant evidence to the other members of the board and persuade those other members to adopt his findings. The right of a city to prescribe the method of procedure by which disability benefits will be determined is not open to question. Kelly v Detroit, supra. The charter provisions concerning the pension system contain adequate safeguards to assure the due process requirement of fundamental fairness. Plaintiffs application for duty disability benefits is determined by the Board of Trustees. Five members of the board are required to constitute a quorum and three of those five must have been elected by the members. The applicant is given an opportunity to review and add information to the pension file. The plaintiff had an opportunity to have a hearing before the board to add testimony in support of her application. If the defendant or plaintiff disagrees with any medical findings, the defendant must refer the matter to a Medical Board of Review. This board consists of three physicians; each party selects one member and a neutral member is selected by the partial members. The Medical Board of Review can agree to meet and confer, telephone each other, present argument and discussion by writing to each other or communicate by any means acceptable to the members. Each member has an opportunity to persuade the other members. We find nothing in this procedure that would make the determination of plaintiffs benefit claim fundmentally unfair. For these reasons, we reverse the trial court and reinstate defendant’s determination. Because of the foregoing disposition, we need not address defendant’s second issue. Reversed. No costs, interpretation of a city charter involved.
[ 38, -11, -38, 64, 0, 6, 19, -33, 17, 34, -37, 15, 53, 22, 55, 14, 15, 49, -49, -31, -10, -12, -35, 30, -35, 28, 1, 32, -5, -15, 5, -29, 28, -41, -14, 12, 4, 0, 22, 29, 13, -8, 18, -11, -55, -39, 15, 20, -10, -54, -4, 62, -5, 25, -48, 3, 1, -5, 6, -23, -25, 9, 32, -16, 33, 42, -22, 69, -19, -39, -35, 17, -4, -27, -24, 24, 50, 5, 20, -3, 26, 13, -2, 1, 6, 5, 7, 45, -12, -40, 12, 0, -6, 20, -56, -7, -21, -19, 61, 22, -42, 11, 37, 20, 5, -58, 0, -3, 4, -37, -11, 30, 17, -22, 14, -15, -2, 7, 45, 77, 18, -50, 18, -38, 56, 23, 21, 25, 15, 64, 44, 14, 38, -32, -16, -27, 8, 22, 15, 3, -15, 42, -11, -46, 17, 19, -1, -17, 31, -36, 17, 35, 66, 15, -23, -17, 9, 17, 28, -1, -1, -36, -3, 36, -14, -25, 4, 20, 34, 7, 11, 30, 45, -41, -16, -11, 44, 20, 4, 28, -36, -23, -22, 0, 33, -26, 7, -75, 6, -21, -3, -51, 16, 58, 2, 25, 25, 35, -4, -21, 20, 1, -36, 4, -10, 10, 25, 4, 6, 16, 12, -39, 72, -9, 25, -10, -11, -12, -28, -38, -14, -38, 3, 15, -35, -19, -40, -26, 8, -45, 20, 15, 24, 26, -18, -30, 11, 60, 50, -49, -23, 23, 33, 4, -48, -43, -34, -58, -18, 14, -27, -8, 7, -22, -53, 8, -21, 28, 23, 52, 3, 20, -10, 38, 54, -28, 14, 38, 27, -55, -18, 0, 5, -13, -11, -23, -48, -15, 50, 10, 0, 6, -33, -36, -23, 9, -11, -18, -5, 10, 23, -9, -26, 62, 36, -52, 12, 36, -28, 0, 45, 36, 3, 58, -2, 14, -1, -11, 26, 41, 35, -31, 65, 15, 6, -15, -14, -24, -51, -33, -1, 19, -17, 18, -17, -32, 2, -16, -17, -38, 23, 0, -50, 58, 19, 3, 19, -4, -39, -31, -3, 17, 38, 6, 0, 47, -22, 2, 16, -19, -40, 72, 79, -44, -17, 35, 30, -53, -3, 49, -5, -33, -5, 19, -8, -17, -4, -19, -27, 41, 23, 4, 4, -5, -32, -15, 15, -7, 7, 41, -21, 13, 26, -29, -66, -42, -11, -30, 49, -6, -67, 18, 6, 26, -34, 35, -14, 54, -15, 24, -21, 3, 0, 58, 4, -19, -34, -1, -20, 78, -12, 7, 44, -16, 13, -14, 34, -13, 5, -12, 59, -9, -31, -12, -56, -21, -46, 14, -16, 3, 14, -30, 8, -74, -12, -18, -37, -53, 6, -4, 10, -30, 13, -16, -20, 6, 26, 29, 16, 0, 8, 26, 17, 11, -23, -19, 14, 34, -54, -10, -11, -56, 0, 20, 36, 38, -45, 32, 44, 6, -46, -20, -59, 0, 4, -41, -26, -13, -19, -12, -8, 9, 3, 4, -75, 4, -37, -22, -1, 27, 17, -44, -24, -10, 50, 31, -9, 13, -10, -72, 23, 23, -33, 6, -13, -74, 13, -41, -8, -12, -56, 30, -31, 62, 30, 16, -10, -50, 55, -12, 19, 3, -42, 4, -5, -16, -39, -11, -1, -19, 32, -19, 16, -37, 47, 5, -7, 27, -67, -61, -3, 4, -29, 16, -29, -63, -4, 26, 53, 11, -13, -17, -7, 35, 15, -45, 48, -20, 57, 22, -18, 10, 8, 61, -46, 7, -6, -16, 24, -6, 1, 28, -23, 25, 44, -43, 36, 51, -54, -15, 5, -10, 38, 6, -7, -28, 55, -32, -24, -43, -21, 2, -1, 34, -1, 5, -19, -17, -10, 35, 0, 0, -24, -6, 1, 33, -1, -25, 39, -64, -16, 22, -24, -86, -38, -28, -32, 13, 6, 3, -21, 22, 38, -18, -26, -41, 29, -10, 35, -18, 70, -21, 7, -40, 56, 52, -21, -1, -23, -5, -6, 41, 28, 7, 24, -39, 16, 42, -24, -32, -21, 82, -64, -28, 10, -56, -17, -11, -16, -51, -28, 38, -30, 14, 13, 46, 3, -22, -21, 21, 29, 28, 41, 4, 33, -4, -16, -7, -41, -24, -79, -56, 13, 0, -6, 7, -17, -18, 30, -22, 12, 36, 12, 19, -20, -15, 13, -5, 26, 28, -9, -8, -66, 6, -7, 0, -5, 3, -32, -2, -35, -8, 6, 42, 47, -24, -4, -30, 43, -47, -54, -21, -46, 12, 18, 14, -23, 0, 27, -60, 6, 25, 9, -1, -18, -39, -11, -13, -13, -14, 33, 24, 40, -5, 30, -38, 34, -16, -9, 3, -49, 26, -26, 2, 0, 1, 34, -6, -4, 27, -1, -22, -1, 10, -26, 40, -23, 57, 1, 8, 1, 68, 20, -44, 13, -1, -33, -26, -8, 9, 13, -23, 17, 15, -8, -48, -31, -34, -22, -37, -27, -65, -39, -18, 59, 7, 61, -32, -20, -32, -20, 19, 1, -24, 7, 13, -4, 4, 11, 13, 14, -36, 33, 49, -32, -16, 26, 17, -3, -7, -16, 35, 13, -15, 31, -17, 4, -36, 22, 29, -38, -3, 36, 15, 19, 13, 0, -18, 58, 8, 13, 8, -14, -3, 31, 3, -45, -10, -10, 27, -29, -28, 23, -3, 29, 4, 22, 17, -72, -72, 18, 32, -1, -9, -8, 28, -55, -22, 52, 32, 1, 6, -12, 25, -8, 55, 1, 0, 22, -35, 13, -56, 30, -51, 26, 73, -25, -6, -17, -3, -4, 32, -28, 3, -74, 34, -1, 68, 40, 5, 33, 4, 18, -12, -13, 5, 4, -66, -31, 10, -24, -5, -21, 13, 13, 22, -21, -7, 39, 8, -39, 18, 7, -23, -6, -36, 42, 20, -24, 1, 21, -21, -13, 4, 70, -30, 45, 3, 8, 7, 6, -3, 2, -2, -24, 7, -37, 15, 23, 3, 30, -22, 48, 28, -32, 21, 28, 28, -31, 33, -19, -40, -16, 51, 37, -3, -36, -63, -4, 27, 43, -1, -50, -31, 2, -57, -38, 10, -14, 19, -18, -22, -37, 21, -31, -64, -3, 14, -15, -29, -10, -41, -24, -3, -11, 9, -22, 0, 69, 50, 53, 9, -1, 53, 28, -6, -17, -39, -23, 25, 45, 7, 10, 6, -9, 13, -11, 5, -17, -1, 19, -4, 14, -10 ]
N. J. Kaufman, P.J. On September 29, 1979, a jury found defendant-appellant, Lonnie James Maynard, guilty of assault with intent to do great bodily harm less than murder, contrary to MCL 750.84; MSA 28.279. He was sentenced on October 18, 1979, to 5 to 10 years imprisonment. The defendant appeals as of right under GCR 1963, 806.1. This Court has carefully reviewed the briefs and transcript. We agree that no prejudicial error occurred. However, because of our decision in People v Johnson, 83 Mich App 1; 268 NW2d 259 (1978), which I authored, I feel one of defendant’s allegations of error requires my comment. Defendant contends that the trial court improperly suggested, in its instructions, that the jury could not begin consideration of a lesser offense until it had reached a decision of not guilty as to the higher offense. Prior to our decision in Johnson, supra, the Court of Appeals was split as to what form of instruction was erroneous. In People v Hurst, 396 Mich 1; 238 NW2d 6 (1976), the Court agreed that an instruction to the jury which suggested that consideration of a lesser offense could not begin if one juror held out for conviction of the offense charged is improper and should be avoided in the future. Id., 10. The Hurst Court was not required in its disposition of the case to decide whether the giving of such instruction constituted reversible error. Since the time of Hurst and Johnson, supra, this issue has been decided by the Supreme Court in two very recent cases, People v Mays, 407 Mich 619; 288 NW2d 207 (1980), and People v West, 408 Mich 332; 291 NW2d 48 (1980). In People v Mays, supra, the majority held that an instruction will be deemed erroneous if it conveys the impression that there must be an acquittal on one charge before consideration of another. The instruction that "if you find the defendant not guilty of [the greater offense], you may consider [the lesser offense]” improperly interfered with the jury’s deliberation by requiring agreement of all jurors to acquit on the offense charged before considering a lesser offense and was, therefore, reversible error. Accord, People v Hurst, supra, People v Johnson, supra. While we in no way wish to disavow our decision in Johnson, and, in fact, recognize that this decision has recently been affirmed by our state’s highest court, we must note a distinction between the facts upon which the Mays decision rested and those of the case at issue in order to explain our position in regard to the latter. In Mays, the Supreme Court took pains to note twice that the defendant’s attorney objected both to the instructions to the jury on lesser included offenses and to the verdict form. Mays at 621, 622. The Court stated "[t]he error noted in Hurst, outlined by counsel’s explicit objection, is apparent on this record”. Id., 623. (Emphasis added.) In the case at issue, not only did defense counsel not object to the judge’s instruction, he also agreed to the verdict form given to the jury. However, in People v West, supra, which followed almost immediately on the heels of Mays, and likewise found reversible error in the trial court’s instructions, it was not noted whether defense counsel objected. Moreover, in People v Handley, 101 Mich App 130; 300 NW2d 502 (1980), a panel of this Court reversed a defendant’s conviction because of a similar instruction even though trial counsel had failed to object. Because the defendant was convicted of the charged offense, the Court concluded that the instruction was indeed prejudicial. Id., 136. In the instant case, there is the additional factor of counsel’s agreement to the verdict form. It is impossible to tell from the record whether this acquiescence was a trial tactic. However, we agree that: "Counsel cannot sit back and harbor error to be used as an appellate parachute in the event of jury failure.” People v Brocato, 17 Mich App 277, 305; 169 NW2d 483 (1969). See also People v Smith, 95 Mich App 492; 291 NW2d 91 (1980), People v Williams, 84 Mich App 226; 269 NW2d 535 (1978). We are here to see that justice is done. We cannot demand it for the defendant, while denying it to the plaintiff. Fairness demands that a defense counsel with an objection not invite error by failing to state the objection. We affirm. Cynar, J., concurred.
[ -4, -31, 13, -15, -30, -31, 0, 0, -40, 26, 32, -7, -6, -11, 15, -25, -24, -7, -24, -12, 4, -36, -52, 30, -6, -32, 11, 15, 26, 22, 3, 18, 23, -15, -26, -40, 0, 54, -42, 22, 48, 2, 12, -48, -42, 10, 0, -14, 34, -11, 2, 1, 42, 18, 6, 28, 47, -46, 30, -16, -40, 43, -42, -25, -24, -81, -19, -16, -52, 8, -39, -2, -10, -86, 14, -6, 15, 20, -26, -35, -38, 1, 88, 3, 10, -5, 11, -57, 6, -15, 0, 1, -23, -63, 47, -32, 52, 4, -10, -29, 19, -4, 4, -16, -52, -35, -61, 18, 22, 25, -4, 13, -28, -15, -69, -24, 9, -3, -53, -28, 45, 48, 66, 67, 27, 6, -8, -39, 1, -42, 4, 65, 18, 3, -5, 80, 14, 3, 18, -40, -21, 24, 14, 2, 18, -17, -21, 7, -9, 2, -38, 23, -16, 3, 11, -51, -8, -46, -12, 0, -2, 22, -26, -22, -1, -2, -51, -17, -31, -35, 9, -16, 27, 17, 22, 31, 20, -45, 28, 36, 16, 18, -26, 33, -38, 8, 5, 38, -32, 50, -1, -8, -12, -24, 80, 12, -3, 90, 41, -8, 12, -2, -25, 28, -31, -14, -71, -7, 29, 63, -34, -11, -53, 10, -26, -20, -23, -38, -3, 18, -64, 6, -4, -53, 5, -51, 17, 13, -57, 26, 16, 33, 19, -12, 5, -34, 38, 51, 8, 0, -31, -23, 14, 31, 7, -7, 44, 5, -29, 0, 37, 3, -15, 35, -4, -10, 44, -45, -63, -4, -17, 27, -10, -62, -27, 38, -1, 34, -71, -52, 17, -13, -6, 27, -37, -3, -37, -13, 31, -16, 26, 37, 43, 33, -10, -20, -52, 16, 30, 10, 55, -36, -32, -11, 41, 41, 32, 1, -38, -25, 21, -29, 46, -41, 52, -42, 12, -16, 0, -42, -18, 5, -51, 16, -29, -12, -52, 37, 24, -45, -57, -30, 3, -33, -54, -44, 16, -50, -10, -20, -23, 51, -16, 29, 31, -37, 35, 42, -4, 12, -15, 3, -16, -7, 25, 32, 6, 56, -55, -48, 1, -23, -10, 0, -12, 0, -57, -4, 38, 26, 6, -7, 0, 22, 30, 14, 29, -52, 28, 71, 27, -24, 31, -49, -45, 2, 31, -18, 26, 17, -37, 45, 10, -76, -27, 32, -36, -25, 6, 21, -40, 1, 13, -30, 14, -3, -15, 19, 54, -7, -23, -11, 32, -46, 11, 16, -42, -48, 15, -28, 9, 17, 65, 25, 3, -62, 26, -8, 34, -15, -14, -29, 47, -14, -20, -32, 24, 31, 38, -51, 3, 28, 33, -62, 32, 19, -17, 22, 38, -14, -77, -4, -68, 32, -3, -52, -9, -20, -1, -2, 52, -2, -7, -37, 1, 4, 30, -20, -14, -47, -18, -20, 5, -26, 45, -43, -30, -44, 12, 5, -4, -2, 48, 41, 2, 16, -7, 34, 16, -39, -3, 30, -26, -65, 16, -30, 39, -32, 3, -35, 16, 0, -31, -17, -22, 15, -10, 55, -30, 31, -43, 8, 31, 4, 31, -8, 16, -49, 4, 61, -34, 31, 19, 42, -9, -28, 20, -22, -16, 16, -22, -65, -39, 19, -83, -4, -27, -8, -61, -57, 74, 19, -16, -6, 5, 19, -88, -54, -33, -44, 0, 11, 57, 14, -7, -10, -39, -31, 6, 14, 29, 25, 9, -48, -38, -19, -3, 15, -20, -19, -29, 34, 42, 58, 5, 42, -18, -6, 31, -8, 31, 21, -17, 39, -53, 44, 11, 61, -10, 47, 43, 43, 14, 30, -15, -36, -5, -6, 20, -20, -40, 10, 30, -7, -4, -36, 24, -28, -21, -11, 11, 41, 5, 27, 90, -8, 9, -2, -67, -57, 50, 20, -2, 21, 7, 15, -17, -36, -44, 20, -38, 22, -25, -12, 6, 16, -34, 8, 7, -49, 6, 31, -11, -18, -18, 29, 1, 19, -7, -30, 40, 29, 33, 16, 37, 35, -25, 8, 52, -36, -20, 34, -27, -74, 41, -45, -18, 42, -21, -27, 16, 71, -12, -1, -44, 54, -27, -22, 35, -6, 0, 11, -4, -14, 21, 50, 42, -10, 23, 3, -43, -12, 23, -69, 49, -21, 2, 17, -14, -1, 7, 61, 13, -4, 14, -3, 54, 33, -31, 10, 29, 8, 19, 0, 21, 11, -28, 0, 21, -21, -44, 63, -21, 10, -30, 6, -54, -60, -29, 35, -28, -1, -3, -20, 20, 6, 69, 13, -5, -27, 26, -13, -14, 55, 62, 22, 19, 41, 2, -10, -18, 7, -8, -6, -49, -13, 38, -19, 26, 1, 27, 8, 29, -34, -58, 57, 65, -8, -24, -34, 27, -1, -28, -55, -24, 35, -38, -2, 13, 14, -1, -37, 20, 13, -30, 51, -14, -36, 14, 13, -9, 20, 14, -19, -11, -7, 33, -18, -65, -1, 42, -30, -14, 36, 48, -11, 0, 12, 17, 13, 2, -50, 14, -16, -17, 19, -1, 14, 29, -27, 57, 11, -39, 42, -10, -1, -2, -15, 36, -20, 29, 0, -16, -34, 25, -4, 24, -39, 18, 4, 18, 5, 16, 23, 5, -12, 16, 36, 5, -6, 18, -3, 6, 5, 38, 10, -19, -1, 33, 13, 40, -25, 9, -16, -38, 41, 1, -13, 35, 59, 1, -1, -1, -13, -2, 1, -6, 19, -8, -48, -42, 29, 45, 51, -37, 48, -54, -5, -19, 2, -34, 10, 13, 58, -4, -65, -61, -9, -16, 9, 8, 58, 13, 4, 24, -9, -30, 39, 16, -51, 22, 41, -18, 0, 60, -18, 42, 17, -55, -1, -2, -9, 34, 5, -11, 17, -39, 4, 35, -27, 18, 70, 11, 9, 5, -11, 13, -5, 21, -2, -11, 13, 61, -54, -62, 21, 0, -5, -7, -32, -3, 28, -32, 6, -25, -32, -25, 34, -39, -24, -24, -19, -11, -18, 43, -25, -19, -10, -11, 25, -29, 43, 2, -4, 37, 6, 55, 22, -39, -31, 60, -57, 2, -40, 41, 2, 24, -15, -48, 21, -4, -25, 45, 5, 0, -9, -8, 31, 0, 26, -19, 26, 18, 17, -28, 17, -30, -42, 4, 19, 19, 42, 14, 2, -8, -19, 20, 38, -10, -14, -28, 4, -12, 39, -23, 42, -29, -35, -68, -21, 12, 38, 0, -13 ]
Per Curiam. This action is before this Court on the consolidated appeal of intervening defendant-appellant Joan Petitpren and intervening appellant Wayne County Road Commission. Petitpren appeals from the denial of her motion for accelerated judgment and the trial court’s order for superintending control of the Wayne County Civil Service Commission declaring the provisional appointment of defendant Petitpren as Assistant Director of Personnel Services for the Wayne County Road Commission revoked. Intervening appellant, Wayne Coiinty Road Commission, by order of this Court dated January 15, 1981, was granted permission to intervene as an appellant for purposes of the instant appeal. On appeal, both appellants Petitpren and Wayne County Road Commission contend that plaintiff lacked legal standing to challenge the Wayne County Civil Service Commission’s approval of Petitpren’s provisional appointment to the position of Assistant Director of Personnel Services for the Wayne County Road Commission. We agree with appellants and, hence, dismiss the plaintiffs complaint, vacate the trial court’s order of superintending control, and reinstate Petitpren’s provisional appointment. The following factual and procedural summary frames the present controversy. On July 23, 1980, the Wayne County Civil Service Commission created the classification of Assistant Director of Personnel Services within the Wayne County Road Commission. On or about September 10, 1980, the Road Commission provisionally appointed Petitpren to this position and requested that the Civil Service Commission confirm the provisional appointment. Shortly thereafter, the Civil Service Commission approved the appointment and, consequently, defendant Petitpren resigned from her then present employment and assumed this position within the Road Commission. Plaintiff, thereafter, filed the instant complaint seeking an order of superintending control or, in the alternative, a writ of mandamus against the Civil Service Commission requesting to have the particular appointment of Petitpren rescinded for the reason that the Civil Service Commission failed to follow the appointment procedure provided for in the County Civil Service Act, MCL 38.401 et seq.; MSA 5.1191(1) et seq., and for failure to follow its own rules. In short, the gravamen of the complaint was the manner and procedure by which the Civil Service Commission approved the particular appointment of Petitpren; it was not the creation or appointment of the position in general. The complaint alleged that plaintiff was a "taxpayer whose tax monies directly and/or indirectly are being or will be expended as a result of the illegal activity complained of herein”. Plaintiff further alleged that he was a duly elected member of the Wayne County Board of Commissioners and "therefore especially interested in promoting the lawful, orderly and efficient administration of all of said county’s board, commissioners and departments including the Wayne County Civil Service Commission”. On October 31, 1980, appellant Petitpren was allowed to intervene as of right as a party defendant. In her motion for accelerated judgment, she argued that the allegations set forth in plaintiffs complaint were not sufficient to give plaintiff standing to challenge the Wayne County Civil Service Commission’s approval of her provisional appointment as Assistant Director of Personnel Services for the Wayne County Road Commission. The trial court denied her motion on the grounds that plaintiff as a taxpayer had standing "* * * because it could have affected him as a taxpayer”. Plaintiffs status as a taxpayer is not sufficient to give him standing to maintain the instant suit against the Wayne County Civil Service Commission. The right of an individual taxpayer to bring suit involving a public right against a governmental agency historically has been very limited. In the leading case of Menendez v Detroit, 337 Mich 476, 482; 60 NW2d 319 (1953), the Michigan Supreme Court established the prerequisites to maintaining a taxpayer’s suit: "[I]t is clearly recognized that prerequisite to a taxpayer’s right to maintain a suit of this character against a unit of government is the threat that he will sustain substantial injury or suffer loss or damage as a taxpayer, through increased taxation and the consequences thereof. This is uniformly true of all the Michigan cases considering this subject.” (Emphasis added.) Menendez requires that the plaintiff, in order to have standing, must allege with particularity how the alleged illegal act will result in injury through "increased taxation The holding of Menendez has been applied by this Court in two recent decisions which are particularly applicable to the instant case. Kaminskas v Detroit, 68 Mich App 499, 501-502; 243 NW2d 25 (1976), lv den 399 Mich 826 (1977), and Saginaw Fire Fighters Ass’n Local 422 v Police & Fire Dep’t Civil Service Comm, 71 Mich App 240, 244; 247 NW2d 365 (1976). In both cases this Court reversed the trial court on the grounds that the plaintiffs) lacked standing to bring a taxpayers’ suit because of failure to set forth the necessary allegation that he will sustain substantial injury or suffer loss or damages as a taxpayer, through increased taxation and the consequences thereof. In the instant case, the complaint also is fatally defective as to these necessary allegations. Plaintiff does not allege that the particular appointment of Petitpren will cause increased taxation to him as a taxpayer. Plaintiff does not even allege that the position of Assistant Director of Personnel Services should be abolished. The bald allegation that tax monies are being expended is too general and conclusory to serve as a springboard for the maintenance of a taxpayer’s suit since such allegations would be equally applicable to practically every action taken by a unit of government and would throw open the doors to unlimited, unrestricted citizen’s lawsuits. We therefore find that the instant complaint does not satisfy the requirements necessary to maintain a taxpayer’s suit and, hence, plaintiff lacked standing. Similarly, the plaintiff has failed to set forth in the complaint any allegations whereby his rights as a private person have been interfered with in a manner distinct from the public at large. Absent such allegations, a private person has no standing to institute proceedings to redress grievances on behalf of the public at large. Public grievances must be brought into court by public agents and not by private intervention. In Home Telephone Co v Michigan Railroad Comm, 174 Mich 219, 224; 140 NW 496 (1913), the following rule of law and numerous supporting authority therefor is set forth: "We think it is well settled in this State that grievances which afflict the community must be redressed by those to whom the law has intrusted the duty of interference. Such has been the rule of law in this State for many years. Miller v Grandy, 13 Mich 540. It was there held that private persons could not assume to themselves the right to institute proceedings in chancery to redress grievances on behalf of the public. They can only proceed where their individual grievances are distinct from those of the public at large, and such as give them a private right to redress.” This rule of law is still viable, applicable and controlling. Inglis v Public School Employees Retirement Board, 374 Mich 10, 13; 131 NW2d 54 (1964), Kaminskas v Detroit, supra, 502, Saginaw Fire Fighters Ass’n Local 422 v Police & Fire Dep’t Civil Service Comm, supra, 244. In the instant case, plaintiff Killeen makes no allegations that he personally has been wrongfully denied employment or injured by the provisional appointment of defendant Petitpren. Instead, the complaint only can be understood as alleging a public injury. Since plaintiffs complaint fails to set forth any allegations that he is specially injured, he has no standing to seek either superintending control or mandamus for the infraction of a public duty. The rule that public right actions must be brought by public officials vested with such responsibility is not satisfied by the mere fact that plaintiff alleges that as a duly elected member of the Wayne County Board of Commissioners he was especially interested in promoting the lawful, or derly and efficient administration of all the county’s boards, commissions and departments. The plaintiff clearly brought this action individually and not in his official capacity as a member of the Board of Commissioners. It is also apparent that the Board of Commissioners is not a party to the suit. Plaintiff alleges nothing which indicates that because of his official position he has been entrusted to oversee the proper functioning of the Civil Service Commission, nor could he if he wished to. The alleged illegal activity complained of does not fall within the scope of plaintiff’s official duties or affect the Board of Commissioners. In short, the mere fact that plaintiff also is a member of the Wayne County Board of Commissioners does not pass muster to confer standing to maintain the instant action. The trial court’s reliance upon Lipiec v Zawadzki, 346 Mich 197; 77 NW2d 763 (1956), as authority for the proposition that plaintiff’s status as a taxpayer is sufficient to confer standing to maintain the instant suit is misplaced. The issue of standing was not litigated in that case and, hence, is bare of any precedential value. Similarly, the plaintiff’s reliance on appeal on Lipiec is equally unavailing. Nothing in the present fact situation brings it within the language of being an issue of "public moment” requiring a "prompt decision”. Resolution of the foregoing issue being dispositive, we need not address ourselves to the additional issue raised on appeal. The trial court’s denial of intervening defendant Petitpren’s motion for accelerated judgment is reversed, the order of superintending control removing Petitpren from the position of Assistant Director of Personnel Services with the Wayne County Road Commission is vacated and plaintiff’s complaint is hereby dismissed. No costs.
[ -48, -41, 1, -17, -15, 26, -20, 24, -61, 32, 27, -53, 38, -1, 7, -22, 4, 55, -24, -17, -23, 7, 13, 26, -1, 21, -19, 5, -41, 13, -28, -31, -2, 7, -18, -25, 18, 1, 32, 41, 33, -8, -54, -23, -14, -34, 23, 30, 15, -26, -3, 115, -8, 32, -34, 1, 18, -75, 29, -18, -46, 44, -7, 11, 0, 18, -10, 48, 5, -9, -5, -23, -3, 0, 46, 35, -19, -51, 0, 35, 0, -22, 5, 24, 16, 39, -2, -2, 6, -1, 1, 24, -37, -53, -19, 5, -34, -51, 45, -34, 1, -12, 26, 36, 36, 0, 0, -23, -6, 0, 60, -40, 21, -32, -10, 42, 19, -11, 69, -42, 28, -48, 24, 4, -2, -41, 30, 13, -72, 25, 17, 29, 23, 0, 22, 13, -31, 10, 29, -24, 15, 54, 24, 8, 0, -31, -35, -13, 44, -32, -22, -8, 58, 5, -18, 19, 45, -33, 31, -29, 12, 10, -12, -17, -51, -22, -52, 59, -49, 7, 55, -7, 49, -26, -42, -53, -16, 31, 0, 26, -32, -25, -37, -20, 30, -13, 11, -57, 18, -18, 7, -25, 41, 1, 25, 35, 10, 35, -41, -12, -8, -14, -4, 20, -28, -12, -18, -17, -37, 18, -1, 8, 18, -27, -38, 4, 28, -10, 13, 21, 19, 27, 22, 0, -28, -30, -33, -1, -10, 5, 40, -8, 9, 52, -43, -22, 32, 53, 12, 22, -48, 5, 42, 6, -40, -7, 18, -17, 25, 23, 30, 0, -21, -20, -6, -25, 12, 5, 33, 13, 37, -4, -1, 14, 42, 13, 41, 79, 2, -77, -17, 29, 22, -39, -22, -8, 27, -15, 36, 61, -42, -27, -68, -8, -3, 20, 35, -13, 11, 45, -18, 27, 0, 62, -12, 16, 64, 4, 13, 10, -22, 23, 13, 7, -7, -28, -60, 1, 38, 29, 12, -31, 27, -13, 7, 22, -23, 0, 36, -39, 15, 23, -31, 23, -53, -48, -19, -11, 0, -67, 13, -9, 5, -14, 30, -8, 20, 29, -14, -4, -16, 13, 0, 25, 21, -2, 27, -20, 67, -4, 34, -5, 31, 23, -13, 16, 0, -93, -5, 36, -10, 25, 0, -66, -1, 7, -12, 28, 23, 15, 31, -3, 8, -13, -20, -18, -11, -14, 35, 13, 15, -36, 6, 21, 6, 0, -28, 10, 6, -38, -47, 8, -11, 22, -30, 24, 72, 12, 41, 42, 3, 6, -1, 48, -33, 11, -12, 6, -19, 58, -2, -21, -4, -2, 20, 25, 26, -9, 36, -27, 4, 19, 35, -10, 8, 2, 47, 6, 53, 21, -26, -41, 27, -26, 18, 24, -16, -60, -17, 5, -33, 17, -39, -24, 1, -5, -41, 33, 1, 6, 32, 27, 39, -12, 22, 1, -38, 12, -2, -39, -29, -33, -5, -33, -11, 18, -25, 35, 11, 6, -40, 35, 18, -21, -11, -11, -20, -44, 47, 9, 6, -25, -42, -9, -20, -9, 22, -42, -39, 12, 10, -58, -8, -42, 48, 9, 14, -2, -23, 37, -10, 4, -7, -12, -44, -31, -47, 28, -44, 0, -49, -34, 48, 46, -5, 44, -2, 30, 26, 0, -28, 34, -26, -19, 27, 61, -14, -46, 29, 7, 68, 6, 49, -16, 0, 46, -9, -14, -28, -31, 26, 16, -37, -8, 12, -20, -19, 37, 6, -12, 29, -25, -24, -7, -52, -16, 6, -34, 17, 33, -40, 2, 21, 12, 46, 21, -34, -3, 23, 9, -5, 45, 13, -7, 22, 10, 1, -41, -46, -42, 43, -38, -18, -10, 17, -42, 37, -22, 5, -18, -42, -51, -1, 4, 18, 22, 0, 18, 9, -18, -8, 12, -30, 31, -11, -26, 6, 24, 58, -66, 10, -25, -25, 2, 0, 13, -45, 12, 46, -10, 3, 1, 65, -5, -8, -26, 36, -5, -14, 5, 43, -21, 28, -19, -8, -19, 13, -3, -8, 6, 1, -21, -7, -7, 32, -25, 17, 10, -3, 34, 21, 68, 20, -50, -19, -12, 63, -30, -22, -40, -15, -7, 6, -1, 0, -2, -33, 10, 23, -49, -25, 7, 23, -25, 9, -22, 26, -2, -58, -31, 13, 7, -48, -22, -53, -50, 4, 43, -10, -19, 36, 21, -35, 5, -14, -47, -3, -21, -8, 30, -28, 27, -6, 48, -40, 6, 15, 0, -22, 12, -55, -27, -18, 59, 0, 0, 2, 4, 40, 16, 11, -10, -44, 33, 32, -7, -35, -71, -30, -9, 26, 35, 10, -20, -3, -19, 6, -16, -44, 11, 27, -2, -8, 2, -26, -21, 50, 45, -74, -3, -24, -6, -37, 12, 40, 11, 8, -34, -13, 24, -23, -26, 25, 26, 6, -23, -59, 36, -26, 10, -11, 36, 7, -32, 30, -12, -34, -12, -6, -27, -8, 4, 29, 6, -10, -29, -3, -34, -28, -26, -16, -51, -32, -48, 4, 24, 17, 25, 46, -35, -42, 64, -11, 30, -11, 19, -45, 42, -22, 12, 5, 36, -2, -3, 0, -1, 5, 69, -29, -14, 18, -11, 38, 0, -18, -31, 47, -34, 13, 47, 8, 42, 22, -10, -7, -11, 6, -30, 28, -8, 10, -2, 16, 0, 5, 1, -19, 56, -15, 10, -7, -7, -28, -12, 33, 28, 23, -16, 3, -32, 39, 43, -21, -64, 28, -23, -31, -63, 34, -1, 39, -10, -24, 10, -12, -29, -5, 27, 31, -52, -12, 2, 5, -1, -9, -23, 29, 25, -1, 30, 43, 9, -51, 15, 5, 0, -25, -6, -7, -18, -26, 26, -2, -53, -11, 19, 7, 9, -21, -14, -22, 3, -53, -10, -6, -13, 12, -21, 34, -6, 44, -29, -47, -30, -30, -27, 32, 12, -3, -8, 30, -71, 7, 11, 8, -29, 30, 14, -39, -14, 17, -57, -36, 9, 2, -14, -54, 56, -31, 1, -7, -34, 62, -12, -38, 11, -52, -36, 17, -18, -25, 27, 82, 41, -19, 27, 24, -34, -6, 35, 10, 19, 10, 12, -17, -12, -34, 16, -20, -7, 0, 2, 7, 67, -16, -31, 45, 12, -28, -19, 28, 9, 27, -30, 5, 21, -55, 1, 29, 20, 6, 27, 4, -4, 25, -1, 25, -7, -54, 70, 3, 0, -30, 34, 17, 4, 31, -7, -29, -36, 11, -4, -12, -11 ]
G. R. Corsiglia, J. On May 3, 1978, defendant was convicted by a jury of felonious assault, MCL 750.82; MSA 28.277, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). He pled guilty to a supplemental information, filed on May 8, 1978, charging him with being a habitual offender, MCL 769.12; MSA 28.1084. He was sentenced to a prison term of 6 to 15 years, plus an additional two-year consecutive term on the felony-firearm conviction. Defendant appeals as of right. Also pending before this Court is a motion for peremptory reversal of the habitual offender conviction, Docket No. 78-3530. Defendant’s convictions arose out of an incident which occurred in March of 1978. According to the victim, Mr. Reeves, defendant came in and grabbed him from behind. He fell over backwards, and the defendant shot him in the head. Another witness testified that he was sitting with the victim and the defendant’s girlfriend, Ms. Spencer, and that the defendant walked into the kitchen, walked over to the victim, placed his left hand around his neck and pulled him to the floor just before the gun went off. The defendant’s girlfriend testified that when she met the defendant at her kitchen door, she saw the gun and attempted to grab it. However, the defendant was able to snatch it away, causing her to fall at the same time that the defendant grabbed the victim from behind. Hence she was unable to observe what happened when the gun went off. During her testimony the prosecution brought to light her relationship with the defendant and a prior inconsistent story she had told to the police. The prosecutor questioned the detective who took Ms. Spencer’s prior story. He related her earlier version, arguably hearsay, without objection by defense counsel. Absent manifest injustice, such matters are not preserved for appeal. People v Stinson, 88 Mich App 672; 278 NW2d 715 (1979), MRE 103(a)(1). No manifest injustice is present in this case. The defendant testified on his own behalf. The gist of his testimony, and indeed the entire defense theory, was that the shooting was an accident. Defendant explained that the gun was usually stored at his girlfriend’s house, but that he had loaned it to someone else. According to his testimony, he was handing the gun to his girlfriend when he saw the victim. He had been drinking heavily. He believed that Reeves was someone who had earlier pulled a gun on him, and he grabbed him with his left hand, knocking him over. While the victim lay on the floor, and the defendant struggled with his girlfriend, the gun went off accidentally. The prosecutor established that the defendant was married and living with his wife, in addition to having a boyfriend/girlfriend relationship with Ms. Spencer. The prosecutor also brought out through cross-examination testimony showing that the defendant owned several guns, had a prior conviction for carrying a concealed weapon, and had no permit to carry a weapon. Defense counsel did not object to this line of questioning. During closing arguments, the prosecutor referred back to these facts, and stated that the defendant committed an assault and battery, although it was not the offense charged. The trial judge instructed the jury that it could return one of four verdicts on Count I. Instructions were given on assault with intent to commit murder (the crime charged), assault with intent to commit great bodily harm less than murder, felonious assault, and, of course, not guilty. On Count II the jury was instructed that they could reach one of two verdicts; they could find the defendant guilty as charged or not guilty. The only objection raised by defense counsel was a continuing one to the instruction on assault with intent to do great bodily harm less than murder. Subsequent to the actual instruction to the jury, both parties expressed satisfaction with the instructions as given. The instructions of the trial judge with regard to the defense of accident were brief. While giving the instruction on the elements of assault with intent to commit murder, the court stated: "The defense in this case [is] that anything that happened was accidental”. After describing the prosecution’s theory of the case, the trial court read the following as the defendant’s theory: "The defendant’s theory is that the People have failed to prove each and every element of the crime alleged or any lesser included offense beyond a reasonable doubt and that the defendant is therefore not guilty as to both counts one and two.” The jury returned a verdict of guilty of felonious assault on Count I, and guilty as charged on Count II. Defendant argues that his conviction for both possession of a firearm during the commission of a felony and felonious assault violates his constitutional right not to be twice placed in jeopardy. We consider the decision of the Supreme Court in Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979), dispositive of this issue. Conviction on both counts does not place the defendant in double jeopardy. Defendant was sentenced to an eight-year minimum term based upon a plea agreement to the habitual offender charge. He now argues that he was not informed and was unaware that this term would be "flat time”, and he would be ineligible for good time or special good time credit, under the statute as interpreted by the courts. People ex rel Oakland Prosecuting Attorney v Bureau of Pardons & Paroles, 78 Mich App 111; 259 NW2d 385 (1977). We first note that Oakland Prosecuting Attorney explicitly left open the option of special parole with judicial approval, under MCL 791.233b; MSA 28.2303(b). Id., 119, fn 5. In a habitual offender proceeding, a court must comply with the requirements of GCR 1963, 785.7 to establish that a plea is intelligently, understandingly and voluntarily given. People v Stevens, 88 Mich App 421; 276 NW2d 910 (1979). See also Guilty Plea Cases, 395 Mich 96; 235 NW2d 132 (1975). However, the trial record reflects that the trial court complied with the provisions of GCR 1963, 785.7 in this case. The trial judge clearly explained the minimum term to the defendant. While statutory good time is not available to a habitual offender, special parole is still an open option. Further, nothing in the language of GCR 1963, 785.7 requires an explanation of good time to a defendant. Consequently, we find this alleged error on the part of the trial judge without merit. Defendant also argues that the trial court failed to instruct the jury that felonious assault is a specific intent crime and that the decision of the Supreme Court in People v Joeseype Johnson, 407 Mich 196; 284 NW2d 718 (1979), compels us to reverse. Joeseype Johnson held that a jury should be instructed that there must be either an intent to injure or an intent to put a victim in reasonable fear or apprehension of an immediate battery to sustain a conviction of felonious assault. Id., 210. However, Joeseype Johnson was decided after defendant’s conviction in this matter, and we decline to give it retroactive application in this case. People v Hampton, 384 Mich 669; 187 NW2d 404 (1971). See also People v Starghill, 99 Mich App 790; 298 NW2d 641 (1980). The great weight of prior case law in Michigan indicated that felonious assault was not a specific intent crime. People v Burk, 238 Mich 485; 213 NW 717 (1927), People v Jordan, 51 Mich App 710; 216 NW2d 71 (1974), People v Rohr, 45 Mich App 535; 206 NW2d 788 (1973). Consequently, the failure of the trial court to instruct on the requisite intent as established by Joeseype Johnson, supra, is not reversible error. Central to the defendant’s case and to this Court’s opinion is the defense theory that the shooting of Mr. Reeves was accidental. Defendant argues on appeal that the lower court did not adequately instruct the jury on this theory. The line which separates felonious assault from a simple assault and battery in this case is the gun. People v VanDiver, 80 Mich App 352; 263 NW2d 370 (1977), MCL 750.82; MSA 28.277. If the defense theory of accident was accepted by a jury, it would be a complete defense to the charged crimes. Consequently, it was of extreme importance that the jury receive adequate instructions regarding the defense of accident. The instructions given were, at best, limited. The trial court referred to the defense theory of accident when setting forth the elements of assault with intent to commit murder. Further reference was not made to the theory of accident when giving the elements of the lesser offenses. In summarizing the defendant’s theory, the court did not mention the defense of accident. We are unable to ascertain from the record whether the theory of the defendant, as read by the trial judge, was drafted by defense counsel. The record clearly reflects that defense counsel indicated his general satisfaction with the instructions as given. As a general rule, this Court is hesitant to reverse a lower court because of an error in jury instructions where no objection is raised at trial. GCR 1963, 516.2, MCL 769.26; MSA 28.1096. Failure of counsel to object at the trial level precludes immediate correction, and it involves the criminal justice system in needless appeals and delay. Jury instructions must be read and considered as a whole to determine if there is error and, if there is error, it is not grounds for reversal in the absence of objection at trial except upon a showing of manifest injustice. People v Johnson, 93 Mich App 667; 287 NW2d 311 (1979). Nevertheless, it was clear from the time of the defendant’s opening statement, through defendant’s actual trial testimony and closing argument, that accident was central to the defense theory in this case. Felonious assault requires a dangerous weapon, the weapon involved here was a gun, and the defense theory was that the assault and the firing of that weapon were accidental. In this case the distinction between the crime of which the jury convicted the defendant, felonious assault, and the crime of simple assault and battery is too fine for the instructions given to have adequátely presented to the jury the defense theory of accident. We reach this conclusion even assuming that the defense theory as read by the trial judge was drafted by defense counsel. The instruction given by the court regarding the defense of accident was mentioned in conjunction with an element of assault with intent to commit murder. It was not repeated when instructions were given on assault with intent to commit great bodily harm less than murder or felonious assault. We are constrained to find reversible error. People v Ora Jones, 395 Mich 379, 394; 236 NW2d 461 (1975), People v Stanley Jones, 69 Mich App 459; 245 NW2d 91 (1976), lv den 400 Mich 830 (1977). Considered as a whole, the instructions given and the defendant’s theory of the case as presented by the trial judge, even absent objection, were not sufficient to adequately present the defense theory to the jury. Since we find reversible error in the jury instructions given in this case, we do not need to reach the issue of prosecutorial misconduct raised by the defendant. However, in order to avoid further appeals in this matter, we address the issues raised by the defendant. At trial defense counsel allowed the prosecutor to interject, without objection, a number of issues regarding which the defendant now complains. Clearly, the relationship between Ms. Spencer and the defendant was relevant insofar as it showed a possible bias, especially in light of her inconsistent stories. However, the prosecutor also inquired into the defendant’s license to carry a handgun, although he was not charged with the statutory offense. This inquiry was of limited relevance, at best, and raised highly prejudicial matters. Standing alone, we would be hesitant to reverse based on such an issue. However, we in no manner condone such a reference by the prosecution. People v Morgan, 86 Mich App 226; 272 NW2d 249 (1978). Further, we find additional prejudicial conduct by the prosecutor in his closing argument. The prosecutor stated, following immediately upon reference to the three potential verdicts the jury could return against the defendant: "The defendant has admitted to you that he did offer to do violence to James Reeves, he had admitted coming up behind him and grabbing him around the neck, that, too, constitutes an assault. As a matter of fact, it constitutes assault and battery, but that’s not the crime that is charged here.” While this Court is not unaware of the difficulty of phrasing every statement with precision in closing argument, this reference to an uncharged crime of which the defendant was “guilty”, in combination with the previous references by the prosecutor to other "crimes” such as carrying a weapon without a license and bad acts such as having guns around, might have convinced a jury unversed in legal technicalities that the defendant was guilty of something and should be convicted. The length of the deliberations and the fact that the jury returned the least serious charge do not belie this possibility. It is doubtful that we could conclude, in light of these facts and in the face of an encore at retrial, that this was harmless error beyond a reasonable doubt. Finally, defendant contends that he was improperly charged and convicted as a habitual offender in violation of the rule in People v Fountain, 407 Mich 96; 282 NW2d 168 (1979), because the prosecutor, despite knowing of defendant’s prior convictions, failed to file the supplemental information charging defendant as a habitual offender until after his conviction of the principal offense. Although the trial in the present case took place before Fountain was decided, defendant is entitled to the benefit of that decision. In People v Young, 410 Mich 363; 301 NW2d 803 (1981), the Supreme Court ruled that Fountain applies to cases pending on appeal on August 28, 1979, provided the issue was raised during the pendency of the appeal. These circumstances occurred in the instant case and on retrial the prosecution is barred from charging defendant as a habitual offender. Reversed and remanded for a new trial. Danhof, C.J., concurred.
[ -3, 6, -8, 16, -44, -37, -98, 46, -29, 13, -21, -45, -8, 49, 7, -3, -16, 55, 17, -8, 52, -37, -10, 17, -16, -30, 15, 66, -33, 31, 43, -3, 37, -55, -7, 17, 55, 44, 39, 75, 18, -1, -13, -17, -32, 0, 17, 23, 11, 12, 58, -21, -21, -33, 28, 11, -16, -5, 69, 31, 16, 48, -42, -25, -14, 10, 2, 39, -45, -16, 12, -58, -35, 21, 1, 7, -20, 22, 26, -25, -30, -17, 49, 26, -13, -23, -17, -21, -1, -85, 7, 23, -48, 0, 26, -43, 6, -84, 59, -23, 0, 6, -31, -8, -21, 40, -16, -43, -6, 28, -13, 21, 70, 70, -3, -5, -18, 26, 24, -15, 13, 21, 24, -10, 42, -25, -4, -5, 57, 40, -2, 26, 59, -41, -64, 30, 14, 41, -6, 9, -9, 13, 35, -2, 14, -3, -29, 20, 6, 41, -10, 36, -13, 6, 37, -18, -4, -13, -27, 18, -12, -7, -30, -14, 27, -12, -10, -16, -28, 7, -33, 4, 49, 0, 39, 9, -9, -39, -3, -5, -24, -11, 11, 18, -7, -14, -15, -21, -39, -13, -16, 9, -31, -30, 50, 6, -33, -5, 3, 3, 54, -34, 20, -22, 12, -26, 49, 11, 31, 37, -35, -46, -35, -33, -12, -44, 1, 19, 14, -3, -34, -25, 3, -8, 2, -28, -7, 19, -51, 14, 71, -4, 17, 14, -48, -13, -2, -45, 63, 47, 13, 34, 21, -26, -10, 13, -7, 13, -9, -23, -15, -47, -54, 46, -39, -12, 6, -22, 15, 43, -41, 16, -16, -26, -47, 70, -1, 0, -67, 5, -25, 20, 14, 18, 7, -1, -51, 12, 26, 15, 75, 3, 56, 5, -13, -36, -53, 56, -14, -47, 61, -31, -44, -24, 53, 19, 0, -76, -32, -27, 21, 12, 25, 12, 2, -26, 35, 53, -33, 3, 12, -12, 36, 27, 8, -29, 14, -2, 19, -4, -62, -36, -51, -70, -1, -51, 42, 2, -1, -10, -44, 43, 6, 25, 19, 16, -28, -37, 34, 5, 3, -31, -8, -25, -19, 38, -5, 7, -28, -7, -8, -23, -4, -28, 0, -33, -29, 3, 29, -14, 65, -10, -28, -31, 30, 35, 12, -73, 24, 69, -15, -82, 4, -1, 0, -4, 38, -8, 22, 8, 18, 13, 35, -7, -14, -18, -36, -16, 30, 13, -42, 13, -14, -56, 22, -34, -26, 38, -9, -4, 1, 0, 71, 21, -14, -14, -36, 27, -5, -32, 12, 26, 32, 29, 0, -12, 2, -29, 36, -18, 24, 52, 43, -13, 23, -28, -3, -25, 14, -33, 34, 46, -14, 5, 33, 31, -83, 1, 32, -21, -26, -46, -56, 17, 12, 33, -42, 15, 54, -12, 23, 25, -13, -40, -4, 29, 25, -22, 49, -35, 25, -62, -35, 17, 45, -50, -67, -20, -27, -28, 78, -32, -14, 16, -25, 4, -8, 23, 14, 10, 21, -12, -27, -32, -21, -2, -49, -42, 15, 5, 23, -56, -35, 38, -11, 22, 23, 16, -3, 17, -22, -29, -23, 29, 47, 16, 25, -7, -9, 34, -53, 30, -27, 10, -1, -23, -37, -12, -1, 10, -21, 26, 50, 27, -26, -1, 9, -31, -50, -6, 43, 12, -2, -30, 56, 52, -37, -24, 20, -25, 18, 38, 31, 27, -34, -25, -14, -39, 0, 10, 33, 0, 6, -66, 15, -67, 47, 1, -20, 2, -23, 5, 30, 20, -34, 13, 0, -28, 40, -17, 5, 22, -27, -1, -47, 17, 12, 15, -19, 15, 12, 44, -16, -4, -39, -27, 30, -10, -9, 4, -29, 5, 54, -5, -32, -43, -65, 0, 8, -27, 65, 28, 4, 16, 34, 12, 75, 26, -2, 4, 45, 51, -22, -34, 6, 24, 28, 3, -50, -1, 35, -36, -41, 21, -6, -29, -49, -11, -3, -8, -69, -26, -10, 32, -1, 27, -1, -4, -66, -25, 0, 9, 35, -2, 27, 27, -13, 8, -19, -47, -55, 19, -23, 44, 33, -35, -63, 29, 37, -8, -18, 71, -49, -40, 75, 28, 29, -38, 7, 36, -19, -24, 13, -29, -21, 6, -25, -30, 18, 1, -7, -10, 0, -19, 46, 32, -5, 20, 1, 4, -6, 19, 44, -3, 22, 15, 31, 12, -43, 46, -10, 48, -46, -42, -3, -24, 36, -33, 31, -31, -35, 60, 8, 0, -6, 6, -8, -57, -31, 37, -83, 6, 16, -24, 43, 13, -1, 8, 50, 34, 20, 5, -7, 11, 4, 12, -42, -12, -8, 20, -18, -33, -13, -38, -25, 5, -25, -46, 39, 40, 3, 21, 29, -6, 0, 32, 58, -22, -41, -11, 13, 30, -7, -42, -19, 0, -17, 3, 39, -31, -25, -34, 8, -1, -31, 26, -14, -24, 13, -21, 5, 32, -34, -21, -17, -29, -39, -26, 9, -20, -22, -4, -25, 1, 4, 23, 13, 11, -1, 0, 0, 42, 45, -15, -23, 30, 3, -39, -5, 0, -12, -15, -50, 3, -30, 11, -10, -32, 52, 5, 36, 9, -19, -47, 14, -11, 31, -46, -36, 8, -4, 27, 37, 33, -10, -8, 22, 23, -74, 18, 21, 30, 49, 1, 40, -32, 45, -62, 62, -33, 29, -24, -6, -28, -21, -19, -12, 74, 8, 18, -9, -1, -9, -29, -13, 69, 43, -17, 22, 15, -12, 49, 19, 40, -20, 38, -39, -3, -40, -27, 2, -37, 0, 55, 34, -9, -53, -7, -54, 14, -34, 40, 20, -38, -64, -11, 0, 1, 7, -69, 54, -16, -54, 37, 42, -23, 35, 38, -8, -64, 3, -19, 21, 33, 7, -17, -44, -52, 31, 15, -45, 48, 51, 46, 9, -38, 17, -11, -40, 62, -11, -37, 0, -10, -20, 25, 24, -26, 35, -22, -46, -17, -29, 35, -20, 40, -19, -9, -52, 18, 7, -4, -5, -8, -26, 12, 43, -10, -12, 6, 25, -3, -20, -9, 42, 0, 16, 25, -17, -10, 38, -62, -13, -13, 11, -19, -1, 8, 0, 12, -20, -23, -42, -31, 45, -2, 53, 62, -39, -47, -47, 7, 0, 50, 15, 36, 7, -32, -40, -17, -11, 15, 6, -12, 25, -14, 10, -1, 12, -53, -10, -11, 43, -4, 15, 40, 27, -19, -33, 7, -23, 43, 14, 13 ]
Bronson, J. Plaintiffs appeal from the Ingham County Circuit Court’s order denying review of two orders issued by the Supervisor of Wells and the Appeal Board. On May 22, 1969, the Supervisor of Wells for the Michigan Department of Natural Resources (Supervisor) established 20-acre drilling units for the Columbus 3 field in St. Clair County. Plaintiffs owned parcels of developed property within the Columbus 3 field. On March 20, 1973, Sun Oil Company requested that the Columbus 3 field be unitized to enable secondary recovery operations by pressure maintenance. Unitization is a process which permits an entire field to be operated as a single entity without regard to surface boundary lines. When a field is unitized the owners of property within the drilling range are awarded a royalty interest in the whole of what is produced. On June 20, 1973, the Supervisor issued a provisional order granting the unitization request. A permanent order was contingent upon Sun Oil’s obtaining written approval of the unitization plan from at least 75% of the owners of record as required by MCL 319.357; MSA 13.139(107). On June 25, 1974, the Supervisor found that Sun Oil had obtained the necessary 75% owner approval and approved the unitization plan. On June 29, 1974, plaintiffs Koziara appealed the June 25, 1974, order. On July 5, 1974, plaintiffs Wronski also filed a claim of appeal. The appeals were consolidated for hearing. Plaintiffs alleged that the royalty participation percentages were arbitrary, capricious, and unreasonable, that the order violated state and federal statutes prohibiting monopolies and restraint of trade, and that the statutory authorization for the unitization order as well as the order itself suffered from constitutional defects. On January 17, 1975, the hearing examiner granted plaintiffs’ request to hold the appeal in abeyance until discovery was completed. In April, 1975, plaintiffs commenced an action in the St. Clair County Circuit Court, alleging that Sun Oil was overproducing the Columbus 3 field and converting oil in which they had a proprietary interest to its own use. Plaintiffs won a judgment which was affirmed in Wronski v Sun Oil Co, 89 Mich App 11; 279 NW2d 564 (1979), lv den 407 Mich 863 (1979). This opinion provides greater detail concerning the specifics of unitization. On November 18, 1975, plaintiffs petitioned the Supervisor of Wells to schedule a rehearing of the unitization order based upon Sun Oil’s overproduction of the Columbus 3 field. On December 17, 1975, the Supervisor denied plaintiffs’ petition on the basis that it was not timely and because the subject matter of the petition was covered in plain tiffs’ pending appeal from the initial June 25, 1974, unitization order. Plaintiffs filed a second petition for rehearing on April 7, 1976. This time they averred that Sun Oil had never obtained the 75% approval needed from owners of the field. They also contended that Patrick Petroleum Company, which operated three wells in the field, was also guilty of overproduction. Plaintiffs sought an end to the overproduction and reversal of the unitization order. Again, the Supervisor denied the petition for lack of timeliness and further stated that the pending appeal was the proper vehicle for consideration of the issue raised. On June 22, 1977, plaintiffs amended the basis of their original appeal. The amended appeal charged that Sun Oil had no standing to petition for unitization of the Columbus 3 field and had arbitrarily determined the owners’ participation percentages. This amended appeal also alleged that Sun Oil and Patrick Petroleum had overproduced the field. Plaintiffs also asserted for the first time during the proceedings that the Oil and Gas Advisory Board, which had recommended unitization, was biased. Additionally, the amended appeal averred that Patrick Petroleum had agreed to give one landowner a straight 25% overriding royalty interest as a quid pro quo for his approval of the unitization plan. Sun Oil and Patrick Petroleum denied all material allegations contained in the amended appeal. On September 15, 1978, plaintiffs requested a hearing on their appeal at the earliest possible date. They also requested that certain members of the Oil and Gas Advisory Board disqualify themselves because of bias. Ultimately, three members of the board who had an interest in the Columbus 3 field did disqualify themselves. On November 13, 1978, Sun Oil moved to dismiss the appeal because of delay. Patrick Petroleum did likewise on December 13, 1978. It was claimed that the operation of the field under the plan had resulted in an altered hydrocarbon and water configuration in the reservoir. Further, the oil producers alleged that, due to these changes, the interests of innocent property owners could not be protected if the unitization order was reversed. On December 12, 1978, plaintiffs moved to have the appeal transferred to the Ingham County Circuit Court on the basis of bias on the part of the Supervisor of Wells and the Oil and Gas Advisory Board. After a prehearing conference held on December 14, 1978, a hearing examiner issued an opinion granting defendants’ motion to dismiss the appeal. Thereafter, on January 3, 1979, the hearing examiner denied the plaintiffs’ motion to transfer. Orders granting defendants’ motion and denying plaintiffs’ motion were also entered on this date. On February 28, 1979, plaintiffs petitioned the Ingham County Circuit Court for a review of the orders. On January 30, 1980, the circuit court denied plaintiffs’ petition. No written opinion was issued. Plaintiffs initially assert that the hearing officer acting on behalf of the appeal board had no authority to dismiss the appeal based on the alleged delay. This is an issue of first impression in Michigan. We have been unable to locate any previous cases considering any aspect of the Michigan Unitization Law. MCL 319.351 et seq.; MSA 13.139(101) et seq. Preliminarily, we note that nothing in the Michigan Unitization Law gives the Supervisor of Wells or one acting under his authority the power to dismiss an appeal for delay. By MCL 319.379; MSA 13.139(129) proceedings before the Supervisor of Wells are to be conducted in accordance with the Administrative Procedures Act (APA). MCL 24.201 et seq.; MSA 3.560(101) et seq. This act provides that, "The parties in a contested case shall be given an opportunity for a hearing without undue delay”, MCL 24.271(1); MSA 3.560(171). However, it provides no explicit authority for dismissal based upon a party’s delay. Defendants nonetheless rely on this portion of the APA as extending to the Supervisor of Wells Appeal Board the right to dismiss actions based on a party’s delay. We disagree that on the facts of this case MCL 24.271(1); MSA 3.560(171) authorizes dismissal. This record is devoid of any showing that defendants were denied a reasonably timely hearing. We do not dispute the fact of delay in this case. However, defendants have acquiesced in this delay. Not until plaintiffs actually sought a hearing on their appeal in September, 1978, did defendants ever express any concern about the interim delay. We cannot say that defendants were denied the opportunity for a hearing without undue delay because they never sought an opportunity to be heard. Despite the foregoing, we conclude that the Supervisor of Wells Appeal Board does have the power to order dismissal despite the absence of any specific statutory authority. In Turner v General Motors Corp, 70 Mich App 532; 246 NW2d 631 (1976), modiñed on other grounds 401 Mich 419; 258 NW2d 414 (1977), one panel of this Court held that the Workers’ Compensation Appeal Board had the power to dismiss an appeal for failure to comply with the act despite the lack of explicit authorization in the statute. The Turner Court reasoned that a con trary decision would render the act meaningless because, without the power of dismissal, the appeal board could not successfully effectuate the Legislature’s intent of providing quick relief for injured workers. Id., 543-544. Similar policy considerations are applicable in respect to the Michigan Unitization Law. It is clear that under this act, the Legislature was desirous of establishing an expedited appeal process. See MCL 319.381; MSA 13.139(131), MCL 319.382; MSA 13.139(132), and MCL 319.384; MSA 13.139(134). Without the power of dismissal, a party could circumvent the legislative intent. Plaintiffs also claim, however, that even if the Supervisor of Wells Appeal Board has the power to dismiss proceedings based on a party’s delay, this was not an appropriate case in which to grant dismissal. MCL 24.306; MSA 3.560(206) sets forth the situations in which a decision by an administrative agency may be reversed or modified. By MCL 24.306(l)(e); MSA 3.560(206)(l)(e) an order may be set aside where there has been an "unwarranted exercise of discretion”. The hearing examiner gave two reasons for dismissing plaintiffs’ appeal. First, he noted that the appeal board’s authority was greatly circumscribed by MCL 319.385; MSA 13.139(135). By this provision the appeal board may only affirm or reverse a unitization order entered by the Supervisor of Wells. Consequently, the hearing examiner held that if plaintiffs’ appeals were successful, defendants and innocent parties would be substantially harmed by the delay. Sun Oil Company had invested some $1,800,000 in the field over the four years it had operated under the unitization order. Furthermore, due to the water injection the co nfiguration of the hydrocarbons in the reservoir had changed. Therefore, Sun Oil and others having interests in the field could not be restored to anything like their preunitization positions. The hearing examiner also dismissed the case because various constitutional questions had been raised. As he noted, administrative boards are not empowered to consider constitutional challenges. Dation v Ford Motor Co, 314 Mich 152, 159; 22 NW2d 252 (1946), Golembiowski v Madison Heights Civil Service Comm, 93 Mich App 137, 153; 286 NW2d 69 (1979), lv den 408 Mich 893 (1980). We hold that the reasons given by the hearing examiner on behalf of the appeal board were sufficient to support the dismissal of the appeal. We also affirm the decision denying certification and transfer to the Ingham County Circuit Court for the reason that plaintiffs cite no statutory authority allowing such a procedure. We thus come to the final issue which must be resolved, that is: did the circuit court err when it denied plaintiffs’ request for review from the order of dismissal. MCL 319.386; MSA 13.139(136) provides: "The action of the appeal board shall be final with respect to jurisdiction for an appeal before any regulatory agency of this state, but any person may seek relief in the courts as provided under the laws of the state, and the taking of an appeal as provided in this act shall not be a prerequisite to seeking relief in the courts. The place of initiation of proceedings for review shall be limited to the circuit court of the county of Ingham, which shall have exclusive jurisdiction of all suits brought against the supervisor, the board, or any agent or employee thereof, on account of any matter arising under the provisions of this act. No temporary restrain ing order or injunction shall be granted in any such suit except after due notice and for good cause shown.” This provision gives the circuit court the power to review the actions of the appeal board by way of appeal and to consider all suits originally instituted in the court "against the supervisor, the board, or any agent or employee thereof’. The Michigan Unitization Law is unlike most statutes providing for administrative review in that a litigant is not required to exhaust his administrative remedies as a prerequisite to seeking relief in the courts. In this case, however, plaintiffs elected to pursue their administrative remedies. Thereafter, they sought review of the original unitization order in the circuit court and the taking of additional testimony on the issue of the proper participation percentages. Defendants argue that the circuit court could do nothing except deny the request for review since plaintiffs sought the taking of additional evidence. By section 106(2) of the APA, a circuit court may "affirm, reverse or modify the decision or order or remand the case for further proceedings”. On review of an action from an administrative agency, the court has no power to take further evidence itself. Defendants contend that since MCL 24.305; MSA 3.560(205) provides that an administrative agency may "modify its findings, decision or order because of the additional evidence” no remand would be appropriate in this case as, pursuant to the Michigan Unitization Law, the appeal board could only affirm or reverse the unitization order and is not empowered to modify it. MCL 319.385; MSA 13.139(135). We accept that the appeal board’s power to modify the unitization order is nonexistent. This does not mean, however, that a remand would be futile. The circuit court, if it found a need for additional testimony, could remand to the administrative agency for further evidence and retain jurisdiction, making its decision based on the broadened record. The circuit court does have the power to modify a unitization order. At this time, plaintiffs have dropped all their claims for relief except the allegation that their participating percentages in the unitization are not fair vis-á-vis defendants. We held above that because the appeal board could not adequately fashion relief which is fair to all parties, there was no unwarranted exercise of discretion in dismissing the appeal. However, in respect to the circuit court, there is sufficient power to fashion a remedy which is fair to all. As concerns the delay in this case, then, the equities change in respect to the administrative and judicial forums. The administrative dismissal was fair since the appeal board had no power to act without injuring truly innocent parties. As noted above, the circuit court does not labor under the same limitations on its power. Furthermore, if not for the potential consequences to truly innocent persons, the hearing examiner’s decision to dismiss would have been fundamentally unfair. After entering an order indicating that the appeal would be held in abeyance until plaintiffs were ready to proceed, it would be unjust to then dismiss the case solely due to delay where plain tiffs were never warned of this possibility. During the four years the appeal was pending, no effort was made by either the Supervisor, appeal board, or the defendants to speed the appellate process. Had defendants insisted on speedy appellate review, the equities would be different again. Defendants state, however, that the appeal in this case was only to be held in abeyance pending the completion of discovery in the earlier Wronski, supra, and that discovery was completed there by April 4, 1977, if not before. Nonetheless, no request to proceed on the appeal was made until September 15, 1978. Again, however, defendants were equally cognizant of when discovery in the earlier Wronski was completed, yet made no request for the appeal to proceed. Furthermore, on the record at hand, it is clear that the appeal board would have had the same difficulty fashioning complete relief in April, 1977, as it did when it dismissed the appeal. While plaintiffs’ own questionable delay should rightly be construed as a bar to their ability to gain adjustments of their participation percentages vis-á-vis innocent persons, the same is not true in respect to these defendants. First, both defendants are also chargeable with the delay. Second, plaintiffs contend that the participation percentages defendants enjoy in relation to them are due to the fact that these percentages are in part based on defendants’ illegal overproduction of oil in the Columbus 3 field. In Wronski, supra, this Court upheld a finding that Sun Oil Company had illegally overproduced oil belonging to plaintiffs. All the parties agree that the unitization percentages are in large part based on oil production in the field during the fourth quarter of 1971. Plaintiffs contend that during this quarter defendants were overproducing their oil. If true, on the facts of this case, it would be inequitable not to give plaintiffs a real opportunity to establish that the royalty percentages they are entitled to should be increased and that defendants’ royalties should be decreased. The trial court merely entered an order stating, "Petition for review denied”. GCR 1963, 517.1 requires a trial court to make findings of fact and conclusions of law. The purpose of this requirement is to facilitate judicial review. Nicpon v Nicpon, 9 Mich App 373, 378; 157 NW2d 464 (1968). In this case, due to the paucity of findings we do not know the basis of the circuit court’s findings. We remand this matter to the circuit court. The court may again deny the petition for review, accept review, modify the unitization order or remand for further development of the record. However, by this opinion we hold that plaintiffs’ delay in pursuing the appeal is not a basis upon which the circuit court may decline to review the unitization order. Any order entered by the circuit court should be accompanied by an opinion specifying the reasons for the action taken. Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion. No costs, questions of statutory construction being central to resolution of this case. The particulars of the constitutional attack included allegations that: (1) the unitization order impaired the obligations of contracts, (2) the order constituted an unlawful taking of property rights without due process, (3) the order in effect constituted an unlawful condemnation of property since no showing of public necessity was made, (4) the unitization plan was discriminatory and constituted a denial of equal protection, and (5) MCL 319.357; MSA 13.139(107) itself is unconstitutional as depriving plaintiffs of valuable property rights without a trial by jury. MCL 24.306(2); MSA 3.560(206)(2). Furthermore, plaintiffs are accepting prospective adjustment of the participating percentages only. Indeed, plaintiffs, themselves, state that to set aside the unitization order at this time "would be inappropriate since it could result in inequities to other landowners and since it would result in waste by the failure to maximize recovery of oil and liquid hydrocarbons from the Columbus '3’ Oil and Gas Field.” We also note that in November, 1975, the Supervisor of Wells denied plaintiffs’ petition for rehearing based upon Sun Oil’s overproduction partly because this matter was covered in the pending appeal. It strikes us as unfair that the Supervisor should dismiss the petition for rehearing based on the pending appeal and then later that the appeal board should dismiss this appeal due to delay unless some other forum for review is allowed.
[ 25, 41, 24, -52, -28, 19, -6, 18, -24, 40, -7, 9, -7, 2, 0, -5, 2, 15, 5, 1, -46, 4, 30, 8, -16, -23, 3, 4, -1, 19, -84, -18, -22, -27, -4, 33, 9, 1, -23, -30, 4, 1, 49, 24, -84, -1, 1, -37, -17, 16, -2, 20, -31, 43, -13, 31, 25, -4, -8, -18, -33, 62, 37, 82, 65, 82, -67, -18, -6, -28, -38, -7, 44, -14, 25, 53, -6, -33, 4, 27, -10, 59, 4, 19, -24, 47, -17, 8, 36, -13, -35, -34, -71, 0, 38, 21, -6, -17, 10, 30, 22, 57, 15, 14, -41, 38, 35, -5, 23, 0, 9, -26, 25, 7, -10, 12, 6, -19, 0, -26, -27, -21, 32, 48, 9, 14, -48, -19, 4, -14, 0, 3, -8, 2, 57, -2, 90, -19, 2, -32, -56, 7, 36, -26, 3, 12, 25, -54, 19, -8, -17, -24, 13, 64, 1, 33, 41, 39, 13, -24, 18, -21, -14, -4, -40, -61, 16, 3, -19, 20, 88, -27, -2, -63, -12, 13, -5, -15, -70, 18, -11, -45, -22, 33, -2, -15, -39, 46, -40, 34, 33, -27, 13, 12, -37, 7, 39, 24, -34, 69, 8, -10, 7, -31, 8, -29, -18, -30, 13, 20, 28, 33, -3, -14, -47, 3, -6, -38, -12, -20, 56, -24, 52, 34, 16, -7, 3, -1, 15, -23, 10, -37, 57, 29, -21, 0, 37, 30, 35, -20, 4, -12, -43, -1, 1, 15, -21, -9, 53, 41, -34, -41, -59, -70, -39, -52, 7, 21, -34, -12, 49, -24, -73, -12, -21, -1, -21, 12, -23, 6, -70, 27, -5, -48, -51, -55, 23, -2, 20, 53, 4, -20, -27, 0, -1, -4, 33, -10, -18, 25, -15, 36, 11, -51, -23, -21, 14, 13, 45, 15, -36, 6, -21, -16, -11, 17, -41, -43, -26, -6, 35, -13, -26, 21, -24, -76, -11, 23, 45, -50, -8, 11, -45, 19, -12, 24, -5, -22, 37, 6, -62, -43, -17, -12, -12, -8, -16, 57, -1, 32, 67, -11, -10, 42, 57, 1, 21, -64, 38, 1, -26, -2, 51, 27, -44, -34, -23, -3, -66, -18, 65, 5, -11, -35, 37, 44, 17, 5, 39, 23, -5, 7, 21, 30, 50, 4, 10, 36, -1, 6, -16, -4, 34, -42, 37, -29, 6, 23, -38, -10, -2, 35, 2, 35, -58, -4, 11, 8, 23, 6, 73, 39, -22, 17, -18, 1, 17, 46, 2, -11, 0, -72, -39, -9, -42, 20, 76, -10, -15, -50, 24, -5, -89, -47, 21, -6, 1, -19, 11, 45, -52, 51, 32, 4, -1, 33, 2, 20, -24, -20, -58, 32, 5, 21, -18, -7, -7, 37, 45, -9, -20, 26, -45, -11, -26, 3, 36, -32, -6, -10, -46, 0, 17, -10, -41, -11, -6, 14, 62, 34, -34, 88, 23, 37, -8, -32, -24, 23, -2, -23, 68, 32, -18, 35, 28, -18, 45, 57, -23, 33, -23, 19, 64, -64, 44, -55, 17, -8, -5, -63, 4, -70, 41, 4, 32, 19, 7, 18, 17, 40, 1, -18, 36, -23, -68, -23, -18, 1, 9, 49, -12, -1, 25, -19, -22, -22, -40, -22, 29, 9, 27, -45, 4, -17, -18, -35, 15, -11, -67, -22, 11, -12, 11, -10, -6, -6, -39, -96, -27, -72, -14, -25, -56, 8, -11, 10, 41, -36, -38, -3, 1, -10, 41, 1, 23, -36, -25, -13, 51, 58, 28, 69, 39, -3, 90, 7, -9, -31, -6, 20, -18, -16, 7, 4, -66, 11, 4, -24, -12, 16, -45, -2, 25, -5, 34, 40, -14, -38, -16, -67, 12, 9, 6, -28, -19, -6, -20, 48, 20, -28, -11, -25, -8, 2, 71, 14, 23, -11, 44, -40, 21, 22, 11, 47, -40, 27, 1, 5, -20, -2, -32, -21, -48, -13, 54, 20, -30, -11, -95, 1, 33, -8, -25, 22, 0, -1, 36, -47, -6, 1, -34, 70, 24, -18, 45, -28, -29, -36, 26, -30, 10, -2, 51, -34, -43, 11, 24, 1, 57, 33, 19, 5, -2, -27, -35, -17, 26, 41, -34, 58, -23, 8, -17, 9, 39, -30, 35, 78, 31, -7, 23, 11, -13, 27, -59, -41, 13, -5, 50, -15, -2, 94, 51, -2, -5, 28, -2, -6, 4, -21, 12, -21, 36, -3, 31, 20, 20, -32, -78, -22, -25, -5, -19, 43, 24, 51, -26, -15, 5, -34, -50, 35, 58, 31, -5, -42, -31, 3, 2, -10, 33, -36, -29, -17, -41, -24, -18, 34, -43, 37, -40, 17, 1, 29, -28, -22, 0, -25, -40, 21, 26, -57, 21, -21, -55, 3, 2, -33, 0, 1, -10, 4, 3, -3, 0, -14, -21, 18, -21, 33, -49, -45, 47, -17, 1, 12, -13, -12, 13, -45, -56, -7, 44, -53, 10, 23, 18, -3, -28, -64, -59, 31, 17, 30, 13, -23, -46, -38, -48, 47, -10, 18, 34, 2, 35, 42, -30, 25, -85, 38, 16, -21, -4, 76, -3, -72, 58, -16, -31, 78, 25, 29, 11, 43, -16, -40, 27, -14, -33, 10, 11, -76, -18, 17, -53, 12, -40, 50, 2, 32, -17, -26, 12, -26, 30, -37, 0, 0, -23, 77, 41, 25, -17, 14, -11, 30, 31, 12, -41, 78, 1, -27, -63, 33, 51, 39, -50, -35, 12, -19, -7, 0, 26, -19, 29, -16, 59, -1, -1, 27, 69, -59, -19, 1, -22, 12, 71, -32, -26, -43, 5, 0, 1, -19, 0, 82, -21, 11, 8, -7, -25, 75, -41, -46, -66, 8, -7, -20, -45, 13, 26, -27, -44, 7, -48, -22, -25, 37, 33, 41, 28, -58, -34, -13, -5, -22, 18, -12, -31, -4, -39, -26, -15, 18, -4, 13, 8, 17, -1, 31, -9, -15, 24, -5, -2, -7, 16, 9, -1, -37, 0, 28, 20, 7, -10, -35, 8, 62, -11, -11, 0, -7, -32, -48, 54, 28, -43, 1, -6, 0, -43, -7, 23, -10, 1, -21, -50, 22, 23, 71, 15, 1, 40, 2, 50, 4, -37, 13, 14, 4, 30, 31, -20, 49, 36, 47, 30, -35, 11, 60, -30, 3, -59, -21, -34, 8, 11, -5, -33, -29, -18, -28, -7, 7 ]
V. J. Brennan, J. Defendants Charlevoix Lakes, Charlevoix Associates, Inc., United Charlevoix, Inc., and individual defendants Donald Tishman and Richard Broughton appeal as of right from an adverse decision finding them liable for breach of a loan agreement. Plaintiffs Lazzaro and Bourneux cross-appeal from the dismissal of Mary Jo Tishman and Joann Broughton as parties defendant and the denial of an award of attorney’s fees. We affirm the trial court’s disposition of all the issues raised by appellants and cross-appellants. We further commend the trial court for its exact compliance with GCR 1963, 517.1 and acknowledge that our appellate review function has been greatly facilitated by the specificity and clarity with which it set forth the findings of fact and conclusions of law. Of the issues raised on appeal, only one aspect of the trial court’s decision warrants extended discussion. In the instant case, the trial court concluded that it had limited personal jurisdiction over individual defendants Donald Tishman and Richard Broughton and eventually entered deficiency judg ments against them personally. Conversely, it concluded that it did not have jurisdiction over individual defendants Mary Jo Tishman and Joann Broughton and heneé, dismissed them for lack of personal jurisdiction. On appeal, both plaintiffs and individual defendants Messrs. Tishman and Broughton allege that the trial court erred in this determination. Plaintiffs allege that the court erred in its dismissal of Mary Jo Tishman and Joann Broughton; Messrs. Tishman and Broughton allege that the court erred in its retention of them as parties defendant. A resolution of this issue requires a dual inquiry: one statutory and one constitutional. We first address the issue of whether the statutory basis for jurisdiction was satisfied in the instant case. The trial court posited its grant of jurisdiction upon Michigan’s long-arm statute which provides for limited personal jurisdiction over nonresident individuals, MCL 600.705(1); MSA 27A.705(1). This section of the statute provides in pertinent part: "Sec. 705. The existence of any of the following relationships between an individual or his agent and the state shall constitute a sufficient basis of jurisdiction to enable a court of record of this state to exercise limited personal jurisdiction over the individual and to enable the court to render personal judgments against the individual or his representative arising out of an act which creates any of the following relationships: "(1) The transaction of any business within the state.” The concept of "limited personal jurisdiction” recognizes that the” claim must arise out of the act or acts which create the basis for jurisdiction. In other words, the cause of action must result from the situation creating the jurisdictional relationship between the defendant and the state. In the instant case, judgment was sought against the four individual defendants in their capacity as guarantors of the loan agreement between plaintiff Continental Mortgage Investors, a Massachusetts business trust and defendants, Charlevoix Lakes, an Ohio joint venture, consisting of Charlevoix Associates, Inc., an Ohio corporation, and United Charlevoix, Inc., a Florida corporation. The individual defendants, at all times relevant to the litigation, were nonresidents of Michigan. Further, the loan agreement transaction was consummated outside of Michigan. However, the funds from the loan agreement were used for the purchase and development of a recreational condominium project on real estate located in Hayes Township, Charlevoix County, Michigan. Moreover, the loan was to be repaid from the proceeds of the sale of the condominiums to be placed upon the property. The loan was further secured by a first lien mortgage upon such real estate. The narrow question on appeal is whether the individual defendants’ acts of being guarantors of the loan agreement creates the "transaction of any business within the state” so as to satisfy the statutory basis for the trial court’s grant of limited personal jurisdiction. We conclude that, under the particular facts and circumstances, all of the individual defendants come within the ambits of MCL 600.705(1); MSA 27A.705(1). We are persuaded that this section of the long-arm statute is intended to be liberally construed in favor of recognizing limited personal jurisdiction especially where an ordinary commercial transaction is involved, absent violation of due process of law. In Sifers v Horen, 385 Mich 195; 188 NW2d 623 (1971), the Court recognized jurisdiction under MCL 600.705(1); MSA 27A.705(1) as to a contract which resulted from a conversation between a nonresident lawyer who was lecturing in Michigan and a resident client. The majority, in so holding, made two points which are germane to the instant case. The majority pointed out that the pertinent section used the term "any” business within the state. It further clarified that "[t]he word 'any’ means just what it says. It includes 'each’ and 'every’. [Citations omitted.] It comprehends 'the slightest’ ”. Sifers v Horen, supra, 199, fn 2. It further noted that long-arm statutes in other states which confer limited personal jurisdiction based on "the transaction of any business within the state” have generally been construed to extend the state’s jurisdiction to the farthest limits permitted by due process. Accordingly, the Sifers Court gave the same expansive application to the Michigan statute. Sifers, supra, 199. Using the expansive standards set forth in Sifers, we have no difficulty in concluding that the acts of the individual defendants in guaranteeing the loan agreement by which the purchase, development and securing of the condominium project in Michigan was made possible and out of which this action arises is within the scope of being "transaction of any business within the state”, so as to confer limited personal jurisdiction pursuant to MCL 600.705(1); MSA 27A.705(1). Having concluded that this section is sufficient for the court to assert jurisdiction, it is unnecessary to consider whether jurisdiction also could be conferred under other sections of the statute. Accordingly, we next proceed to the second level of analysis to determine if the exercise of jurisdiction over these four individual defendants is compatible with due process of law, as constitutionally mandated. The limitation imposed by the due process clause upon the assertion of in personam jurisdiction by state courts developed through various landmark United States Supreme Court decisions. International Shoe Co v Washington, 326 US 310; 66 S Ct 154; 90 L Ed 95 (1945), Perkins v Benguit Consolidated Mining Co, 342 US 437; 72 S Ct 413; 96 L Ed 485 (1952), McGee v International Life Insurance Co, 355 US 220; 78 S Ct 199; 2 L Ed 2d 223 (1957), Hanson v Denckla, 357 US 235; 78 S Ct 1228; 2 L Ed 2d 1283 (1958), Shaffer v Heitner, 433 US 186; 97 S Ct 2569; 53 L Ed 2d 683 (1977), Kulko v California Superior Court, 436 US 84; 98 S Ct 1690; 56 L Ed 2d 132 (1978). The import of these holdings upon a state’s exercise of jurisdiction was recently distilled and discussed by Justice Levin in Khalaf v Bankers & Shoppers Ins Co, 404 Mich 134, 146-148; 273 NW2d 811 (1978), which we set forth in pertinent part: "The United States Supreme Court declared in International Shoe Co v Washington that, in the context of long-arm jurisdiction, the question under the Due Process Clause is whether the defendant has such 'minimum contacts’ with the forum that maintenance of the action 'does not offend "traditional notions of fair play and substantial justice” ’. [International Shoe, supra, 319.] This has remained the governing standard in the Court’s subsequent pronouncements. "The Court has held that jurisdiction may be maintained in respect to a single act having 'substantial connection’ with the state. [McGee, supra, 223.] It may also be exercised over causes of action arising 'from activities entirely distinct’ from the defendant’s activities in the forum where the nonresident has an adequate relationship with the state. '[G]eneral fairness to the [defendant] * * * [the] amount and kind of activities * * * mak[ing] it reasonable and just to subject the [defendant] to the jurisdiction of that state are to be determined in each case’. [Perkins, supra, 447-448.] "A factor in the analysis is the state’s interest in providing 'effective means of redress for its residents’. [McGee, supra, 223.] "It is not enough, however, that the forum state is 'the "center of gravity” of the controversy, or the most convenient location for litigation. The issue is personal jurisdiction, not choice of law. It is resolved in this case by considering the acts of the [defendant]’. [Hanson, supra, 254.] Merely because 'a State’s law can properly be applied to a dispute, its courts [do not] necessarily have jurisdiction over the parties to that dispute’. [Shaffer, supra, 215.] "It is 'essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws’. (Emphasis supplied.) [Hanson, supra, 252.] The defendant’s activities will ordinarily be such that he will have 'reason to expect to be haled before’ the forum court. [Shaffer, supra, 216.]” (Footnotes omitted.) Applying these "minimal contact” standards to the facts and circumstances of the instant case, we affirm the trial court’s decision that Messrs. Donald Tishman and Richard Broughton had sufficient contacts with Michigan and Mary Jo Tishman and Joann Broughton did not have sufficient contacts. It is evident from the record that the contacts of Donald Tishman and Richard Broughton were neither casual nor fortuitous. Tishman and Broughton were prime movers behind the joint venture formed to develop the real estate project which is the subject of this litigation. Charlevoix Associates, Inc., an Ohio corporation, was owned by Tishman and Broughton. After the loan was closed, they came into Michigan to close the purchase of the Michigan real estate. Thereafter, they were continually in and out of the state attempting to advance the interests of the project. Because of the nature, quality and quantity of Messrs. Tishman’s and Broughton’s contacts with Michigan, we are persuaded that these two individual defendants purposefully availed themselves of the privilege of conducting activities within Michigan so that the exercise of jurisdiction within Michigan does not offend traditional notions of fair play and substantial justice. Conversely, we find that there were insufficient contacts to justify the assertion of personal jurisdiction over Mary Jo Tishman and Joann Broughton. They had no contacts with this forum state other than the mere act of signing the guaranty which was all accomplished in the state of Ohio. This sole isolated act does not constitute a sufficient contact upon which to base personal jurisdiction over a nonresident. Hence, the trial court properly found that the constitutional due process requirement that the defendant have minimal contact in the forum state was not satisfied as to Mary Jo Tishman and Joann Broughton. For the above stated reasons, the trial court’s decision is affirmed. The concept of "limited” personal jurisdiction, however, is not a limitation upon the enforcement, execution on or collection of the resultant judgment. Limited personal jurisdiction is still, as the term applies, jurisdiction in personam. The judgment is entitled to full faith and credit, is enforceable against the defendant personally and can be levied or executed against any assets or property.
[ -5, 41, 11, -14, -52, 20, 11, 17, 1, 40, -25, -34, -3, -2, 20, -53, 16, 48, 6, -12, -47, -3, -37, 28, -23, -1, 63, 4, 29, -3, -34, -28, 17, 7, -33, -8, 22, -27, 9, 23, 37, 9, 1, -4, -16, -5, 62, -10, 19, -82, 46, 33, 0, 31, -8, -11, -18, -23, 32, 2, -33, 13, -20, -7, 6, -21, 44, 11, 29, 23, -42, 12, -3, 3, 4, 5, 20, -14, -19, 0, 27, 0, 27, -53, -4, 11, 8, -9, -39, -9, -5, 21, -60, -22, 36, -9, 30, -33, 29, -17, -4, 0, 5, 40, -24, 20, -22, -39, 8, -14, 32, 19, -3, -5, -38, -11, -43, 24, -1, 16, -62, -21, 28, 5, 18, -43, 1, -43, 23, 39, -4, 15, 44, -3, -16, 26, 12, 2, 16, -27, 62, -22, 22, -22, 22, 14, -16, -55, 15, -9, 12, 2, -5, 52, 22, 1, 24, -48, 63, 20, 4, -4, -3, -22, -38, -6, -3, 53, -5, 0, 30, 38, 11, 11, 0, -31, -11, 18, 14, -18, 10, 74, -8, -28, 5, -28, 1, -29, 18, -34, -7, -21, -28, 0, -12, 51, 19, 28, -40, 33, -15, -33, -15, -31, 6, 5, 32, -8, 17, -7, -33, -14, -23, -23, -56, -30, 53, 4, 15, -2, 27, 10, -21, -1, -66, -5, -33, 16, -1, -22, 3, -22, -18, 72, -32, -9, -5, 26, 19, -13, -23, 4, 10, -23, 7, 59, -5, 7, -16, 2, -12, -7, 31, -8, -17, -4, -8, -13, -1, 19, -13, 44, -80, -27, -50, 26, 14, 26, -26, -19, -79, -15, 6, -7, -16, -64, 22, 57, 23, 30, 26, 20, 10, 0, -31, 25, 8, 17, 40, 76, -36, 2, -17, 15, 60, -14, 72, -56, 31, 31, 18, 18, 20, 50, -17, -8, 10, 3, -11, -30, 21, -7, -10, -60, 24, 50, -10, -42, 55, -41, 17, 31, 1, 25, -39, -9, 27, -13, 2, -29, -8, 10, 38, 26, -38, -25, 10, -33, 28, 1, 30, -40, -14, -46, 26, -28, -6, -36, -6, -25, 11, 14, -7, 16, 38, 23, 53, -24, -26, 19, -1, -45, -19, -10, -10, 29, 0, -28, 26, 57, 3, 12, -31, 19, -19, -17, -7, -10, -55, 44, 25, 15, 9, 54, 42, 20, -26, -8, 17, -3, -35, -35, 9, 27, -9, -2, 3, -18, -1, -14, 49, 59, 23, -18, -17, 5, 25, -26, -25, 7, -29, -64, 35, 26, 6, 2, 1, -19, -6, -46, 16, -10, 14, -75, 46, -5, -13, 29, 8, 53, 21, 6, 11, -5, 9, 24, -21, -37, -20, 28, -50, 13, -22, -43, -4, -28, -32, 14, -22, 15, 49, 31, -4, 10, -76, -38, -41, -18, 38, -30, 14, -24, -23, -6, 19, -32, -24, 6, 19, -28, -31, 4, -9, 42, -17, -4, -18, 43, -24, 37, 36, -24, -34, 31, -39, 2, -17, -17, 0, 12, -30, 12, -34, 59, -40, 18, 32, 22, -22, -14, 10, -19, -4, 40, -2, -17, -26, -23, -5, 2, -26, -17, 35, 24, -80, 3, 7, 11, 21, 29, 8, 49, 29, 12, 9, 4, -14, -18, 53, 23, 30, 5, 58, -25, 25, 12, -4, -2, 15, 7, 9, 23, -30, 25, 22, 31, -11, -7, 27, -1, -7, -42, 1, 0, 20, -45, -9, 32, 53, -61, -9, 15, 42, 13, 35, -28, -15, -22, 64, -27, 6, 31, -10, -11, 35, 0, 39, 13, -45, -30, -46, 10, -24, -18, -16, 1, 41, 8, 10, -33, 5, -22, 13, -25, 18, -12, -17, -19, 7, 39, -4, 9, -62, 0, 22, 23, -1, 25, 0, -6, 32, 13, -40, -41, -13, -32, -13, -14, -50, 21, 7, 5, 31, -2, -11, 15, -23, 25, -21, -1, 25, -35, -20, -25, -7, 21, 16, -24, -36, -34, -1, 5, -21, 3, 9, -20, 22, -1, 6, -52, -37, 69, -4, -13, -16, 1, 31, 8, -16, 24, 37, -35, -34, 39, 6, 13, -44, -23, 25, -12, 16, -5, 67, 26, 33, -32, -40, -7, 0, 43, -39, -29, -42, -20, 45, -11, 5, -23, 19, 10, -19, 33, -22, -48, 18, -35, 0, -9, -5, -35, -26, 39, 12, 10, -54, 27, 28, 15, 37, 28, -25, 19, 44, 11, -3, 0, -44, -50, -4, 18, -22, -16, 4, -40, 64, 5, 5, -66, -10, 34, 31, 59, 7, -8, 21, 11, 34, -4, -67, 13, 15, 11, 12, -9, -44, -26, 15, -8, 34, -3, -5, 7, 30, 20, 3, -38, -3, -15, -52, 14, -3, 10, 18, -26, 7, -53, 7, -8, 33, -14, -47, -23, -26, 21, -53, 28, -18, 7, -30, -49, 14, 16, -17, -12, 31, -30, 27, -81, -5, 35, -5, -8, -27, -40, 5, 9, 14, 20, 45, -8, -12, 49, -16, 21, 16, 11, -7, -36, 41, 14, 59, -25, -7, -36, 1, 19, -9, 0, 7, -42, -2, -23, -13, 6, -17, 1, 35, 24, -26, -3, 22, -57, -35, 28, 5, -23, 1, -15, -18, 16, 32, -49, -79, 19, 24, 52, -23, 0, -21, -37, -5, -10, -7, -12, 31, -41, -30, 33, -15, 4, 18, 38, -37, -3, -19, -6, 19, -35, 35, 60, -15, 28, 0, 33, -4, -26, -6, 15, -45, 7, 37, -27, 17, -3, -35, 17, 59, -14, -20, 18, 61, -7, -38, 11, -14, -7, 13, 2, -19, -24, -3, 35, 36, -6, 13, 11, -26, -10, -22, 14, -4, 28, -12, -5, 13, 31, -21, -3, 73, 56, -10, 16, 0, 13, -9, 4, -13, 3, 8, 40, -16, 0, 0, -35, -9, -42, 38, -21, -65, -57, -9, 24, -32, -5, -21, 5, 1, 22, -21, 58, -58, -42, 13, 30, -28, 0, -11, -9, -39, -46, -36, 30, 9, 10, 5, -36, 3, -50, 32, 10, 5, -21, 37, -9, -28, -20, 8, 52, 4, -18, -33, -35, -62, 30, 27, -40, -31, -4, -54, 8, 6, -31, 86, -30, -35, 40, 22, -17, 2, -5, 17, 41, -6, 18, 30, -16, 15, 43, 16, 15, 16, 37, 83, -50, 9, -27, -24, -2, -58, -24, 15, 40, -9, -4 ]
T. M. Burns, J. Defendant appeals as of right his November 28, 1979, bench trial convictions of kidnapping and first-degree criminal sexual conduct. MCL 750.349; MSA 28.581, MCL 750.520b; MSA 28.788(2). On January 7, 1980, he was sentenced to concurrent terms of 25 to 50 years imprisonment for each conviction. The complainant testified that she was walking in the middle of Linn Street in Bay City on June 27, 1979, at approximately 11:30 p.m. when she was accosted by defendant. Defendant, who had been walking on the sidewalk, joined the complainant in the street and asked her if she wished to purchase some marijuana or cocaine. The complainant expressed an interest in the cocaine and defendant accompanied her to the front porch of a house where one of her friends lived. Once there, complainant and defendant smoked some marijuana. When defendant was unable to procure any cocaine, he asked the complainant if she wished to accompany him to his apartment. She refused his offer. Defendant then placed a gun to her head and again asked her to accompany him. He then placed the gun against her side and pulled her from the porch by her arm. After leading the complainant for three of four blocks, defendant removed his jacket, placed it over her head, and spun her around several times. Keeping the jacket over her head, defendant led the complainant into the upstairs bedroom of a house, where, over a period of time of approximately 1-1/2 hours, he sexually assaulted the complainant. During the direct examination of the complainant, the prosecutor was permitted to elicit, over an objection of the defense, the fact that the complainant had originally testified at the preliminary examination that she first met defendant on the front porch of her friend. The complainant stated that the reason that she had lied was that she did not want to mention the discussion that she had had with the defendant concerning the purchase of drugs. She further testified that she decided to tell the truth after she was informed that she would be required to undergo a polygraph test. Although defendant did not testify at trial, a police officer witness stated that defendant had told him that he had engaged in consensual sexual intercourse with the complainant. Following trial, defendant pled guilty to a supplemental information that had been filed charging him with having been convicted of three prior felonies. On January 7, 1980, he was sentenced to a term of 25 to 50 years imprisonment. Defendant first argues that the prosecutor erred in attempting to rehabilitate the complainant through the use of her prior inconsistent statements and references to polygraph examinations before her testimony had been impeached by defense counsel. Prior consistent statements of a witness may not be introduced to bolster that witness’s credibility until his or her credibility has been attacked. People v Harris, 86 Mich App 301, 305; 272 NW2d 635 (1978), People v Coles, 79 Mich App 255; 261 NW2d 280 (1977). However, the complainant was a res gestae witness whom the prosecutor was required by law to produce at trial and who could therefore be cross-examined and impeached by the prosecutor. People v White, 401 Mich 482; 257 NW2d 912 (1977). Further, the prosecutor’s actions in this case more properly may be considered as undertaken pursuant to the prosecutorial duty to disclose any information that could materially affect the credibility of a prosecution witness. People v Murray, 54 Mich App 723; 221 NW2d 468 (1974), People v Love, 43 Mich App 608; 204 NW2d 714 (1972). Therefore, we find no error. With regard to defendant’s claim that error occurred when the complainant made mention of a polygraph exam during her testimony, we similarly find no reversible error. Mere reference by a complainant to the fact that a polygraph test was taken does not give rise to reversible error when the reference was brief, inadvertent and isolated, and was not pursued beyond the original mention of the test. People v Neal, 83 Mich App 102; 268 NW2d 303 (1978). Where the record does not establish that the witness took a polygraph test, where no test results were introduced into evidence, and where there was no intent to bolster the witness’s credibility by use of the test results, the mere mention of a polygraph by the witness does not require reversal. People v Scotts, 80 Mich App 1; 263 NW2d 272 (1977). Finally, we note that in People v Paffhousen, 20 Mich App 346, 350; 174 NW2d 69 (1969), this Court declined to reverse a defendant’s conviction under facts nearly identical to those in this case. Defendant next claims that this cause should be remanded for resentencing before a judge who has not heard the complainant’s references to any polygraph examination. We disagree. In People v Hale, 72 Mich App 484; 250 NW2d 103 (1976), this Court held that a trial judge should disqualify himself from ruling on a defense motion where the grant or denial of the motion rests in substantial part upon the credibility of the witness whom the trial judge knows has taken a polygraph examination. However, we find Hale to be distinguishable. Unlike the situation in Hale and the cases cited therein, in the instant case the trial judge was not made aware of the results of the polygraph examination and the record does not indicate that such an examination was even conducted. The mere passing reference or mere mention of a polygraph test does not automatically give rise to prejudice necessitating reversal. Because all references to the possible polygraph examination by the complainant were fleeting and unsubstantial, we decline to reverse defendant’s conviction. Defendant next argues that the evidence introduced at trial was insufficient to support his conviction of kidnapping. Defendant contends that the evidence in this case shows the commission of only a single crime, criminal sexual conduct, and that any confinement of the complainant was only incidental to this crime and cannot be punishable as a separate crime. In People v Adams, 389 Mich 222, 236; 205 NW2d 415 (1973), the Michigan Supreme Court held that evidence of the asportation element of kidnapping was not sufficient if it established only that the movement was "merely incidental” to the commission of another underlying, lesser criminal offense: "If the movement adds either a greater danger or threat thereof, that is a factor in considering whether the movement adequately constitutes the necessary legal asportation, but there could be asportation without this element of additional danger so long as the movement was incidental to a kidnapping and not a lesser crime.” Id., 238. After examining the evidence in this case, the trial judge found that the asportation in this case was not merely incidental to the sexual assault. We agree. Although the underlying offense was facilitated by the movement and confinement of complainant to defendant’s bedroom, the record indicates that defendant continued to hold her against her will after he had completed the several sexual assaults and that he released her only after she convinced him that she would not report the incident to the police. In People v Friday, 98 Mich App 522; 296 NW2d 618 (1980), this Court held that continued confinement after the underlying offense had been completed is not considered incidental to that offense. Further, the movement of the complainant to a location that was completely unknown to her, and that was totally within the control of the defendant, increased the likelihood of serious injury to her than that which would have been the case had the crime occurred at the site where she was first accosted by the defendant. See People v Barker, 411 Mich 291; 307 NW2d 61 (1981), People v Lynn, 91 Mich App 117, 125-126; 283 NW2d 664 (1979). Therefore, we cannot say that the trial judge’s findings are clearly erroneous and that the evidence is insufficient to support defendant’s kidnapping conviction. We are persuaded by the merit in defendant’s argument that his habitual offender conviction must be set aside because his plea to that offense was not taken in accordance with the procedural requirements of GCR 1963, 785.7. People v Stevens, 88 Mich App 421, 427; 276 NW2d 910 (1979). In accepting a defendant’s plea of guilty to an habitual offender information, a trial judge must adhere to the standards of the court rule just as would be required in a taking of any other guilty plea. Because defendant’s plea in this case was taken after the opinion of this Court in Stevens was released, we must vacate defendant’s plea and remand this cause for further proceedings. Any reinstitution of this charge on remand shall be in accordance with the opinion of the Supreme Court in People v Young, 410 Mich 363; 301 NW2d 803 (1981). In vacating defendant’s habitual offender conviction we also set aside his sentence of 25 to 50 years imprisonment. However, we parenthetically note that defendant’s argument that this sentence was improper because it violates in principle the "two-thirds rule” of People v Tanner, 387 Mich 683, 689; 199 NW2d 202 (1972), is incorrect. Tanner provides: "We recognize that by virtue of the regular good time provision alone the defendant herein might actually serve a minimum of only 10 years, 9 months, and 12 days. However, we are of the opinion that a sentence either does or does not comply with the indeterminate sentence act, irrespective of the effect of special remedial provisions such as those granting regular and special good time.” (Emphasis in original. Footnote omitted.) Defendant’s first-degree criminal sexual conduct and kidnapping convictions are affirmed. His conviction of being an habitual offender is vacated. This cause is remanded for further proceedings.
[ -5, 12, -27, 21, -34, -12, -72, 8, -26, -6, -4, -12, 1, -17, 33, 23, -7, 0, 47, -12, 27, -70, 4, 67, -14, -20, 51, -3, -26, 16, 45, 25, 56, -60, 12, 47, 6, 11, 40, 32, 6, -32, -10, 47, -52, -2, 15, 19, 20, -28, 14, -16, 26, 56, -14, -14, 14, 2, 56, 3, -5, 7, -83, -34, 8, -50, -2, 29, 40, 18, 12, -50, -27, -15, 1, 57, 6, 17, 11, 20, -57, 20, 8, 66, 22, -45, -29, -59, -16, 8, -17, -19, 5, 2, -7, -13, -48, -41, 24, -35, -37, 1, -27, 28, 14, 63, 14, -36, -5, 27, -59, -1, 48, 17, -17, -70, -5, -6, -29, 38, -7, 8, 48, -23, 37, -36, -18, -15, 7, -50, -65, 63, 81, -4, -4, 1, -5, 46, 23, 40, -25, 36, -5, 53, 36, -36, -17, 2, 5, 36, -55, 4, -29, 32, 44, -26, 5, -36, -30, -7, -25, -41, 28, 13, 10, -33, 9, 26, 19, -21, 28, -8, -3, 35, 31, -3, -36, 3, -3, -26, -7, 19, -29, 16, 1, -1, -14, -44, -38, 23, -2, -6, -46, -57, 34, 6, 9, 36, -6, -54, 0, -18, 16, 25, 47, -14, -32, 27, 75, -35, -3, -2, 49, -55, -21, -22, -6, 26, -8, 7, -51, -44, 9, -28, -12, -7, -14, 9, 20, 9, 27, 16, -2, -5, -78, 40, 7, -25, 78, 3, 6, -8, -9, -13, 0, 39, -7, 1, -31, -11, -21, 11, -29, 17, -9, -14, 31, -44, 32, 31, -31, -4, -7, 38, 9, 49, -7, 42, -57, -12, -44, 25, 16, -16, -36, 8, -17, 51, 2, 4, 17, -10, 40, 15, -8, -21, -42, 102, 7, -28, 16, 17, -56, -38, 84, 26, 16, -20, -13, 60, 36, -42, -19, -55, 17, -29, 80, 25, -58, 18, 84, -62, 27, 7, 15, -41, 51, -6, 20, -3, 2, 3, -31, -8, 15, -17, -8, 11, -4, -21, -26, 30, -11, 39, 15, 84, -42, 26, 38, -15, -42, -5, -23, 38, -22, 32, 26, -11, -43, -37, 8, -31, 25, -42, -86, 11, -22, -13, 11, 14, 59, -5, -10, -7, 26, 8, 35, -28, 19, 37, 14, -60, -16, 0, 30, -38, 15, 24, 41, 34, -22, -14, 79, 32, 9, -13, 19, -50, -1, -41, -22, 63, 19, -36, 3, -20, -11, 31, 33, -23, 10, 3, 60, 32, -48, -66, 13, 37, 41, -54, -8, 41, 39, 55, 10, -26, 20, -26, 22, -6, 60, 14, 24, -9, 37, 7, 10, -14, 57, -17, -13, 23, 29, -28, -50, -1, -60, 11, -33, -5, -5, -8, -25, 20, 23, -13, -15, -34, 30, -7, 1, -7, 34, -19, -52, 22, 1, 67, -4, -22, -1, -50, -20, 20, 14, -55, -28, -17, -33, -9, 37, 35, 20, -6, -47, 19, 10, 8, -33, 5, 6, 4, -22, 19, 28, -37, 1, -25, -14, -12, 33, -23, -13, 53, -7, 88, -39, -5, 9, -18, -11, -83, -54, 20, 40, 29, 69, 58, -32, 2, -29, -5, -13, -41, -9, -1, -8, -17, -31, -18, -6, 33, 34, 14, -3, -37, 14, -83, -61, 39, 12, -51, -5, -75, 26, 21, -29, -12, 10, -25, 21, 7, -10, 36, -9, -39, 23, 20, -26, 38, -28, 19, 21, -28, -13, 30, -1, -9, 4, -1, -64, 31, 63, 37, -12, 0, -29, -6, 33, 15, 25, 35, -45, 33, -6, 39, -26, 47, -29, 89, 22, 20, -4, 22, -37, -5, 30, 30, -12, 5, -51, 38, 16, 1, -20, -28, -74, -60, -44, -43, 53, -15, -5, 14, -6, -36, 39, -7, 10, -19, 43, -34, -16, -8, -1, 19, -35, 0, -41, 4, -39, -41, -17, 22, -3, -70, -55, -35, 12, -7, -10, -31, 7, 58, 29, -46, 5, 28, -23, -28, -2, 38, -35, 24, 13, 65, -15, -4, -21, -47, 3, 10, 25, -39, 6, -27, -32, 34, -10, 38, -27, 24, -47, 8, 26, -17, 3, -28, 15, 4, -43, -14, 25, -22, 3, -24, -55, -8, 40, -43, -32, -17, 53, -50, 0, 6, -34, 26, -4, 48, -19, 2, 40, 57, 65, 15, 36, -10, -27, -4, -33, 15, -7, 4, 29, -12, 42, -3, 0, 39, -16, 62, 11, -2, 9, -16, -70, -19, -6, 22, -49, 14, 0, 25, 37, -21, 10, 0, 33, -19, 41, 34, 11, 18, 33, -11, -74, 14, 28, 42, -35, -15, -23, -72, -47, -16, -18, -53, 24, 7, 27, 0, 50, 78, -3, 11, 37, -28, -68, -53, -29, -28, 34, -48, -27, -6, 14, 12, 68, 7, -53, -53, -12, -3, -74, -25, -42, 59, 17, -41, 33, -7, -80, -19, 28, -24, 4, -40, 24, -1, -40, -15, 5, 36, -16, 36, -24, -6, 19, -25, 13, 30, -1, -41, 12, 28, -23, -57, -10, 23, 37, -12, 0, 2, -10, 41, -11, -71, 0, 2, 27, -28, -42, 23, -21, 20, 12, -19, -16, -46, 14, 53, 84, 59, -43, -7, -14, -23, -5, 17, -19, -2, 6, 13, 40, -30, 54, -59, 29, -27, 40, -44, -10, -10, -73, 15, -19, 17, -4, -23, -17, 22, -30, -35, -35, 65, 61, -30, 47, 27, 12, -5, 37, 3, -11, 64, -23, -5, 2, -1, 0, -68, 35, 0, 18, -33, -28, -33, 6, -22, -29, 26, 50, 6, -35, -52, 35, -6, -9, -68, 36, -30, -42, 22, 26, -8, -11, -39, -44, -2, -20, 13, 31, 56, -8, -16, -25, 9, 16, -3, -42, -18, 33, 68, -6, 1, 7, 6, -19, 57, 13, 8, -50, -27, -17, -11, 55, -44, 15, 50, 9, 42, -21, 18, -4, 14, -16, -33, 5, 36, -41, 17, -2, 51, -48, -6, -4, 63, -37, 33, -6, 10, -14, 12, 27, -1, 9, 27, -2, -32, 32, -34, -24, -5, 23, -58, -18, -11, 14, -50, -36, -27, -37, -15, 5, 18, 4, 50, 13, -6, -12, -38, 27, 42, 38, -15, -13, -35, -20, -54, -16, 27, -12, 6, 34, -9, 19, -21, 39, -14, 2, -8, 37, -28, -36, 35, -4, 23, 19, 38, -13, 7, 42, 13 ]
Bashara, J. The majority concurs with the reasoning and result reached by Judge Bronson’s holding that the trial court’s instruction to the jury as to the issue of malice was erroneous and requires reversal. People v Richardson, 409 Mich 126, 142-146; 293 NW2d 332 (1980), People v Wright, 408 Mich 1, 18-23; 289 NW2d 1 (1980). However, we specifically reject the balance of the dissenting opinion, both as to rationale and result. For the benefit of the trial judge on retrial, our review leads us to the conclusion that his instructions on specific intent elements of first-degree murder and assault with intent to murder were proper. We further find that the evidence adduced could lead a finder of fact to conclude that first-degree murder was committed. Reversed and remanded to the trial court for retrial on the original charge, at the discretion of the prosecutor. V. J. Brennan, P.J., concurred.
[ 13, 22, 11, -58, -27, -10, 22, 11, -32, 29, -2, 0, -12, 5, 22, -30, -2, -24, -25, -27, -60, 16, 4, 14, -27, -65, -2, 23, -2, -14, 19, -8, 52, -23, 20, -50, 56, -2, -48, 16, 54, 3, -11, -26, -2, 4, 23, -32, 4, -26, -23, 5, -14, -9, -21, 16, 27, 18, -30, 45, 7, 1, -31, 0, -26, -31, 9, 17, -50, 20, -62, -22, -16, -24, -1, -35, 7, -13, -19, -24, -9, 16, 4, -6, -25, -16, -2, -39, -45, 29, 32, 15, -22, -1, 39, 27, 66, -64, 20, -4, 30, 14, -8, 2, -42, 0, -40, -37, 22, -6, 38, 33, -9, -1, -23, 14, 17, -16, -36, -22, 11, 35, 40, 18, 20, -10, 25, -18, 25, -30, 16, 36, 8, 0, -9, -1, 0, 10, 9, -12, 11, 27, 35, 7, 20, 22, -15, 28, -40, 46, -24, -4, -19, 10, 42, -81, 8, -60, 3, 21, 27, 3, 4, 10, -26, 8, 0, -34, 13, -67, -10, -10, 71, 14, 23, 25, -40, -10, -7, 24, 1, 30, 0, 33, -29, 11, -10, -8, -3, 0, -18, 22, -36, -17, 51, 0, 0, 35, -3, 11, 12, -19, 3, -10, -45, -12, -33, -3, 0, 30, -48, 34, -85, 7, 7, 0, -41, -36, 19, 31, -68, -11, 40, -16, -38, -38, -13, 44, -4, 11, 26, -12, -27, -14, -11, -26, 14, -3, 22, -5, -25, -15, 35, 29, 4, 68, 46, 19, -31, 18, 64, 0, 25, 16, -27, -22, 73, -32, -37, -16, 4, 20, -27, 32, -52, 7, 2, 56, -22, -25, -36, -38, 0, 11, 0, -32, 27, -2, 14, 35, -4, 71, 53, -4, -14, 7, -53, 60, 45, 38, 58, -19, -12, 0, 32, 55, 65, -7, 9, -36, 23, 7, 30, 2, -22, 5, 27, 2, -41, 7, 5, 22, 29, 10, 13, 32, -74, 14, 71, -37, -59, -18, 48, -80, -32, -42, 35, -64, -33, -43, -16, 42, 13, 44, 7, -31, -14, 18, 5, 15, 17, -23, -9, -10, 15, -12, -1, 45, -52, -58, 25, -5, -9, 32, -28, -87, -30, -19, 19, -29, 28, -27, -9, 5, 5, 32, 6, -63, 1, 38, 27, -16, -47, 48, -20, 31, 52, -64, 20, 27, -44, 31, 25, -40, -11, 14, 10, 7, -44, 21, -19, 10, -9, -23, -61, 13, -40, -20, 27, -26, -55, 24, 16, -52, -40, 42, -47, -13, 4, -29, 0, -56, 29, 31, 10, -30, -33, 0, 16, -57, 34, -31, 5, 24, 7, 25, -1, 20, 15, -77, -6, 7, 0, -58, 2, 0, -1, -3, 88, 4, -93, -16, -41, 3, -44, -62, -9, 37, 9, -24, 7, 0, 18, -37, -29, 40, -4, -40, -4, -12, 25, -41, 13, -39, 11, 5, -41, -14, 36, -30, 31, -54, 23, 37, 10, 23, -17, 50, 12, -26, 51, 0, -24, -9, 14, 10, 37, -68, 15, -71, -24, 24, 5, 1, -9, 4, 29, -2, -54, -8, -3, -16, 0, -45, 3, 1, 23, -64, 40, 55, 2, 12, -41, 24, -60, -37, -10, -12, 18, 36, 0, -40, 12, -17, -13, 11, -29, 10, -55, -6, 21, 43, 48, -33, 53, 28, -60, -62, 58, -10, -9, 18, 42, 8, -33, 17, 0, -21, 4, 12, 5, 36, -5, -13, -18, 7, -17, 7, 3, -54, -48, -16, 31, 51, 58, -10, -18, -3, 89, -31, 45, -10, -38, 46, -17, 17, 18, 57, -45, -26, 3, 44, -38, 48, 23, -46, 64, 11, 24, -9, -61, 7, 65, -38, -23, -46, 20, -23, -18, 0, 17, 37, -1, 33, 22, -15, -1, -1, 6, -1, 35, -15, -25, 29, 59, 41, 31, -46, -37, 0, -32, -19, -49, -12, 6, 8, 14, -29, 12, -35, -26, 3, -45, 6, -51, -4, -15, 6, -30, -33, 34, 50, -16, 13, 60, 13, -43, 6, 31, -21, -38, -1, 11, -7, 0, -24, 13, 0, -26, -20, 42, 34, 3, -12, -25, 31, -4, -42, 16, 11, 43, 12, 2, 1, 2, 29, 30, 25, -30, 4, -12, -14, -28, -5, 10, 5, 1, 46, 7, 18, -18, 56, -10, 44, 2, -20, 41, -36, 0, -33, 36, -28, -17, 0, 20, -33, 2, -15, 0, -5, -14, 17, -9, -10, -2, 9, -22, -43, -22, 50, 2, 3, 43, 24, -15, -19, 12, 9, 12, 13, 6, -13, -8, 69, 28, 53, 18, 31, 30, 4, -15, -14, -42, -16, -41, 0, 54, -23, 0, 46, -1, 23, 23, -9, -40, 80, 69, -13, -39, -20, 14, 1, -24, -31, 28, -44, -15, 20, -11, 0, -34, -41, 6, 24, -50, 61, -7, -7, 10, 7, -18, 17, -24, -10, -20, -25, -39, -9, -37, 25, 3, 34, -17, 48, 67, 5, 11, -2, 2, 57, 49, 39, 1, 8, -25, 14, 26, 31, -30, 4, 76, 26, -14, -15, 19, 23, 7, -19, -14, -15, 32, 31, 47, -19, 55, -1, 5, -68, -49, 12, 36, 7, -31, 43, -20, -14, -18, 25, -28, 2, -9, 4, 17, 37, -7, 31, -8, 10, 12, 29, 37, 32, 1, -12, -10, -7, -42, 29, 3, 41, 14, 30, 14, -25, 19, 41, -37, 10, 42, -59, -32, 36, 16, 22, -18, 22, -60, -22, -75, 7, 15, -7, -11, 54, 36, -13, 13, -9, 1, -5, 48, 49, 21, -36, -19, -4, -28, 11, 15, -28, -43, -25, -2, 12, 61, -42, 23, 23, 7, 22, -49, -34, 41, -12, 10, 16, -39, -52, 44, -26, 26, 48, 51, 21, 0, 7, -17, -66, 2, -11, -25, -10, 8, -62, -25, 28, -1, -15, -19, -21, -34, -26, -49, 50, 0, 13, -49, 38, -48, -8, 7, -25, -45, 1, 1, -4, 9, 10, -26, -25, -42, 49, 28, 18, 83, 16, -3, -28, -20, 0, 27, -32, 18, -60, 9, -28, 17, 21, -54, -8, -17, -29, 9, -13, -21, -49, 15, -30, -7, -14, -66, -19, 24, 8, -71, 45, -33, 26, 7, 1, -36, 46, 8, 12, -6, 1, 19, 65, -23, -39, -12, 44, 20, 33, -54, 39, -21, -85, -54, 38, 13, 59, -13, -5 ]
Per Curiam. Defendant was convicted by a jury on January 18, 1980, of breaking and entering an occupied dwelling with intent to commit larceny, MCL 750.110; MSA 28.305. Sentenced to 5 to 15 years in prison, he appeals by right. The chief actors in the breaking and entering scenario are defendant and various members of the Raines family. David Raines, defendant’s former housemate, was an alleged participant in the crime, and Rozella McGhee, David’s sister, lived in the trailer that was broken into. David’s father, defendant’s next-door neighbor, saw defendant and David carrying guns and a tape recorder from a van into their house. The father’s telephone call to police led to a search warrant and the arrest of defendant and David. On appeal, defendant first argues that the trial court erred in excluding from evidence the testimony of David Raines’ cellmate, who stated in an offer of proof: ”Q. Okay. Did Mr. Raines explain anything further about the breaking and entering? "A. We talked, yeah. He said it was Bob’s [defendant’s] — Bob was kind of a chump about it, because he really didn’t take part in it and that it didn’t make any difference because he was going to fix it up anyway. ”Q. Did he say anything about his participation in it? "A. Oh, yeah. He told me they did it. ”Q. That who did it? "A. He said Bob was so messed up, he said, that the— he said that the — he said he was out of it, that they had all been really high that day.” The prosecution objected, claiming this was inadmissible hearsay. Defendant argued that the statement was admissible under an exception to the hearsay rule as an admission against penal interest. MRE 804(b)(3). The court sustained the objection. We observe that the statement was not truly against Raines’ penal interest. While he admitted involvement in the crime, his observation that all the participants were "really high” tended to be exculpatory for it was evidence of an intoxication defense. Such an exculpatory statement lacks the requisite indicia of truthfulness that make a state ment that is truly against penal interest reliable, so the trial court properly excluded it. Even if the statement had been against Raines’ interest, defendant, the party seeking to introduce the evidence, failed to establish that it fell within the exception. No proof was oifered that the declarant was unavailable and no corroborating circumstances were shown. Failure to meet this burden is ground for excluding the evidence. Sanborn v Income Guaranty Co, 244 Mich 99, 107; 221 NW 162 (1928). MRE 804(b)(3) provides that a statement against penal interest is admissible when the declarant is unavailable. The rule further provides: "A statement tending to expose the declarant to criminal liability and oifered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.” The requirement of corroborating circumstances is a departure from prior Michigan law. People v Ernest Edwards, 396 Mich 551, 565; 242 NW2d 739 (1976). Defendant argues on appeal that Raines was unavailable because he could have claimed a Fifth Amendment privilege and refused to testify. MRE 804(a)(1). While Raines had a right to claim this privilege, defendant oifered no proof that Raines would have asserted the privilege if subpoenaed. As defendant never established the witness’s unavailability, the trial court properly excluded the hearsay testimony. Knight v Michigan, 99 Mich App 226, 234; 297 NW2d 889 (1980), People v Dortch, 84 Mich App 184, 191; 269 NW2d 541 (1978). Defendant also argues that corroborating circumstances were shown because the witness had been a police informer and because the statement was made when the witness and the declarant were incarcerated together. These facts do nothing to corroborate the statement asserted by the declarant — that defendant was "high” when the offense was committed. The fact that the witness had been a police informant has no bearing on the trustworthiness of the declarant. In the absence of a showing of corroborating circumstances, the court properly excluded the testimony. Dortch, supra, 191. Defendant next contends that the court erred in refusing to instruct the jury on the defense of drug intoxication, arguing that adequate evidence on the defense was before the jury. Breaking and entering with intent to commit larceny is a specific intent crime. People v Kubasiak, 98 Mich App 529, 539; 296 NW2d 298 (1980). Voluntary intoxication can be shown to negate the requisite intent. Where evidence is produced showing intoxication, an instruction on the defense should be given. People v Guillett, 342 Mich 1; 69 NW2d 140 (1955), People v Kelley, 21 Mich App 612, 621; 176 NW2d 435 (1970). Janis Marrow, defendant’s girlfriend, testified: ”Q. When Mr. Blankenship arrived in the morning, did you notice anything about the way he walked? ”A. Yes, staggering. ”Q. Staggered? "A Um-hum. ”Q. Okay. Did Mr. Blankenship speak very much? "A No more than normal. He, you know, didn’t talk to me that much, just— ”Q. Un-huh. But when he spoke, how did he speak? "A. Drawn out— "Q. Uh-huh. "A. —slow. "Q. Did you see Mr. Blankenship take any pills or any drugs that morning? "A Yes. ”Q. Do you know what drugs he took? "A Yes. [Objection sustained.] ”Q. Okay. Did you notice what sort of a bottle they came from? "A Prescription bottle, you know, a brown bottle. "Q. Did you notice if there was anything on that prescription bottle? 'A No. I didn’t look at it.” This evidence indicates that defendant may have been intoxicated at the time of the offense. Different panels of this Court have disagreed about the quantum of evidence a defendant must produce before he is entitled to an instruction on voluntary intoxication. In People v McLean, 52 Mich App 182, 185-186; 217 NW2d 138 (1974), one panel held that an instruction was needed only when testimony presented would warrant a jury in finding voluntary intoxication. This standard was rejected in favor of the "any evidence” standard in People v Hansma, 84 Mich App 138, 146-147; 269 NW2d 504 (1978). For the reasons stated in the Hansma opinion, we believe it represents the better view. The Hansma Court reasoned that an instruction on other defenses, such as insanity, is required when a defendant produces any evidence tending to establish that defense. The Court also recognized that the "any evidence” test is more consistent with the prosecution’s burden of proof beyond a reasonable doubt. Hansma, supra, 146-147. The Hansma reasoning is persuasive. We believe that any evidence tending to establish the intoxication defense should have been considered by the jury when it determined whether the prosecution proved that the defendant had the requisite intent. Failure to give an intoxication instruction that was supported by evidence was error. The court stated a second ground for denying defendant’s request: defendant had not argued the intoxication defense to the jury or included it in his theory of the case. A defendant is not, however, required to submit a theory of the case, nor must he give a final argument. GCR 1963, 516.7(a), 507.6. Failure to present a defense at either optional point in a trial should not waive that defense. This Court has held that a trial court need not deliver an intoxication defense instruction that is supported by evidence when counsel neither argues that theory to the jury nor requests an instruction on it. People v Hawkins, 34 Mich App 60, 62-63; 190 NW2d 723 (1971). In this case, unlike Hawkins, counsel requested an instruction. We recognize that in some circumstances an instruction on a defense not argued to the jury might result in confusion. Here, however, the testimony was relatively brief and the evidence supported the instruction. We conclude that the court’s failure to give the requested instruction deprived the defendant of his right to have a properly instructed jury pass on the evidence. This error cannot be regarded as harmless. The unusual facts of this case suggest that at least one juror might have found that defendant possessed no larcenous intent when, after consuming some pills, defendant and his housemate entered the housemate’s sister’s home. It is possible that, in a trial free of error, one juror might have voted to acquit. People v Christensen, 64 Mich App 23, 33; 235 NW2d 50 (1975). Reversed and remanded for a new trial.
[ -11, 11, 0, -21, -46, -39, -84, 4, -10, 33, -7, 14, 7, -13, 22, -34, -36, -7, 10, -58, 37, -49, -3, 73, -10, -37, 7, 69, -35, 66, 34, 11, -8, -86, 3, -27, 54, 5, 31, 58, 13, 10, 17, -29, -72, -5, -23, 53, 8, 22, 44, -20, 48, 15, 49, 40, 36, 55, 65, -9, 8, -1, -49, -41, 14, 43, -10, 0, 3, -16, 9, 7, -48, 11, -19, -26, -4, 77, 7, 14, -16, 26, 63, 19, 29, -32, -9, -55, -11, -7, -6, 5, -7, 18, -32, -44, 63, -37, 57, -22, -40, -61, -16, -21, 44, 44, -42, -36, -19, 24, -3, 24, 22, 2, -27, -22, 5, 14, -69, -8, -25, 30, 71, -13, -6, -37, 30, -40, -2, -24, -10, 65, 20, 3, -28, -20, 40, 37, -21, -4, 3, 6, 22, 0, 3, 15, -15, 1, 21, 4, 17, -12, -30, -1, -8, 35, -49, -32, -59, 13, 4, 4, -34, 2, 16, -21, -45, -4, -3, -41, 2, 18, 27, 30, 22, -33, -40, -19, 27, -30, -21, 37, 0, 8, -1, -34, -18, 23, -62, -18, 11, 28, -7, 1, 68, -6, 5, 52, 11, 0, -12, -40, 38, 7, 14, 6, -19, 36, -19, -2, 12, 33, -16, -38, -17, -27, -9, 14, -12, 31, -50, -15, -11, -37, 0, -25, 13, -11, 29, 13, 58, -40, 1, 1, -36, -7, -10, 5, 35, 38, -10, -9, 12, -39, 54, 9, -22, 1, -5, -13, 18, 11, -6, 38, -38, -39, 44, -6, -41, 13, -31, 10, -29, 16, -41, 7, -20, -6, -68, 14, 10, -3, -13, -1, 1, -8, -7, 27, 2, -50, 16, 36, 0, -11, -17, -35, -2, 11, 0, 12, 41, -36, -28, -14, 27, 11, 10, 7, -20, 5, 32, -12, -5, -60, -8, -43, 19, 32, -27, 35, 58, 2, 17, 55, 45, -17, -9, -16, 30, 5, -74, -35, 7, -8, 21, 0, 39, -54, 51, -4, -17, 32, 19, 15, 50, 18, -31, -12, 0, 25, -23, -19, -3, -66, 12, 51, -39, 5, -92, 28, 12, 26, 4, -1, 45, -36, -31, 21, 36, 4, 44, 8, -43, 14, 38, -2, 11, -32, -1, 17, 12, -80, -31, -13, 8, -15, 43, -34, -21, -2, 25, -15, 26, -31, -18, 11, -20, -44, -10, 27, -38, -16, 11, -90, -1, -18, 20, 20, -1, -23, -50, 9, 28, 1, -15, 4, -15, -3, -51, 5, -15, 8, 15, 57, 1, 24, 8, -9, 29, -29, -6, -24, 53, -25, 20, -14, -24, 6, -13, -38, 22, 2, -36, -21, 13, 20, -36, 11, 25, -1, -58, -9, -6, 5, 36, 5, 7, -53, 19, -54, -15, -22, -11, -17, -18, 37, 30, -34, -8, -17, 32, -5, 29, 28, 26, -24, -52, -66, 9, 23, 44, -4, 16, 52, -34, -4, 5, 43, 11, -24, 0, 19, 7, -6, -14, 9, -17, -15, 22, 0, -3, 32, -10, -44, -49, 28, 14, -4, -8, 20, -28, 27, -27, -26, 24, -17, -10, -5, 17, 51, 6, 25, -34, 28, -9, -6, 31, -15, 3, 8, 47, -24, 2, -5, -44, 34, -27, 14, -40, -14, 75, 12, 14, -45, 44, -6, -15, 7, 2, 7, 37, 36, 41, 14, -16, -22, 18, -25, -27, -37, -9, 17, 16, -29, 13, 9, 11, -11, -24, 7, 3, 5, 57, 27, -29, -23, -7, 20, 58, -10, -14, -14, -60, 16, -14, 25, 3, 48, -3, 0, -5, 82, -9, 19, -59, 21, -10, 29, 51, -5, -35, -13, 3, -59, -8, -41, -24, -59, 12, 27, 10, -30, 22, 7, 2, 20, 53, 42, -35, 14, 80, -25, -22, 3, 14, 37, -23, -14, -52, 6, 19, -29, -25, 12, 0, -64, -13, 61, 13, -37, -28, -20, -4, 14, 38, -35, 3, 6, -68, 45, 16, 26, -17, -6, 10, 9, 1, -24, 23, -41, -27, 23, -1, -8, 55, 27, -23, 19, 15, -53, 17, 48, -36, 57, 35, 30, 13, -38, 3, 7, 15, -49, -29, 77, -16, 69, -11, -25, 1, -10, 21, -18, -15, -33, 17, -21, 21, 20, 9, 25, 0, -21, 62, -24, 37, 35, 31, 5, -55, -26, 0, -13, 5, 0, -3, -1, 63, -71, -35, 15, -41, 24, 7, -4, 0, -45, -45, 1, -56, 23, 18, -33, -4, 0, 21, 47, 89, -20, 26, -5, 0, -39, -40, -17, -10, 43, -36, 8, 14, 58, -42, 27, -38, -44, -3, 23, 13, -16, 23, 70, 29, 25, -10, 43, -41, 71, 1, 3, -26, -37, 12, 34, -6, -42, -27, -9, -31, -7, 64, 13, -34, -77, 23, 26, -54, 49, -60, 3, -25, -1, 36, 53, -50, 21, 9, -8, -28, -38, -3, 25, 15, 55, -35, 37, 2, 6, 26, 23, -6, -9, 65, 20, 57, 27, -24, -31, -1, 14, 16, 14, -7, -50, -38, -35, -21, -8, -1, -15, 48, -33, 23, 26, -23, -55, -27, 61, 14, -38, -4, 22, 6, -5, 13, 58, -7, -16, 5, 0, -61, -10, 21, -15, 17, 25, 52, 48, 13, -23, 10, 56, 32, -42, 23, -15, -26, 18, 1, 50, 24, -11, 13, -10, -6, -28, -28, -12, 37, 0, 17, -13, -12, 26, -9, 42, -9, -1, -49, 38, -3, 30, 15, -21, -25, 68, 46, -4, -49, -49, 14, 16, -28, 24, -9, 7, 7, -13, 48, -38, 15, -21, -11, -27, -68, 50, -19, -48, 13, -23, -38, -65, -3, 8, 31, -15, 31, 3, -41, 1, -26, 7, -17, 44, 19, 34, 2, -60, 9, -48, -39, 33, 10, -29, -8, -51, -1, -19, -22, -57, 46, 23, -13, 4, -34, 64, -16, 34, 12, -48, 0, -14, -36, -9, -20, 5, 13, -23, 18, 18, 0, -2, -24, 41, -27, -37, 2, 70, 19, 19, -50, -44, -4, -38, -23, -50, 52, -17, 25, 43, -11, -15, 18, 2, -49, 11, 24, 11, -22, 39, -23, -10, 16, -5, 8, 64, -2, 21, -29, -10, -34, -19, -56, -5, -7, -3, 3, -3, -6, 42, -14, -47, -15, -64, 22, -15, -76, 30, -9, 21, -18, 24, -59, 10, -5, 32 ]
Per Curiam. Defendant, Carl Albert Matzat, appeals as of right from his plea-based conviction and subsequent 20- to 40-year prison sentence for second-degree murder. MCL 750.317; MSA 28.549. On appeal, defendant raises two issues in support of his claim for a remand for resentencing. Defendant first alleges that two presentence conferences between the sentencing judge and defense counsel, at which the defendant was not present, denied the defendant his right to allocution. GCR 1963, 785.8(2). This Court has held in several cases that a sentencing conference between the trial judge and defense counsel is not a critical stage of the proceedings, requiring a defendant’s presence. People v McIntosh, 101 Mich App 422; 300 NW2d 584 (1980), People v Briggs, 94 Mich App 723; 290 NW2d 66 (1980), People v Worden, 91 Mich App 666; 284 NW2d 159 (1979). Also, defense counsel’s presence at the conference prevented the trial court from obtaining "information about [the] defendant, not equally available to the defendant’s counsel * * *”. People v Oliver, 90 Mich App 144, 149; 282 NW2d 262 (1979), rev’d on other grounds 407 Mich 857 (1979). Finally, our review of the sentencing transcript reveals that both defendant and his attorney were "given the opportunity to address the court before sentencing”. People v Berry, 409 Mich 774, 779; 298 NW2d 434 (1980), GCR 1963, 785.8(2), 785.9. The defendant’s claim that he was denied his right to allocution prior to sentencing is thus without merit. The defendant next argues that he was denied his right to allocution because neither the defendant nor his attorney were informed of a supplement to the presentence report given to the lower court prior to sentencing. The disputed memorandum recommended that the defendant be sentenced to a term of imprisonment of from 10 to 20 years. The disclosure of presentence reports and the right of a defendant to controvert factual mátters therein is governed by GCR 1963, 785.12, which provides: "Disclosure of Presentence Reports. The sentencing court shall permit the defendant’s attorney, or if the defendant is not represented by counsel, the defendant, to inspect the presentence report. The prosecution must also be shown the report. Both parties must be given an opportunity at the time of sentencing to explain or controvert any factual representations in the presentence report. The court may except from disclosure parts of the report which are not relevant to a proper sentence, diagnostic opinion which might seriously disrupt a program of rehabilitation, or sources of information which have been obtained on a promise of confidentiality. When a part of the report is not disclosed, the court shall state on the record the reasons for its action and inform the defendant and his attorney that information has not been disclosed. The action of the court in excepting information from disclosure is subject to appellate review. The defendant’s attorney on appeal has the right- to inspect the presentence report at the county probation department or under the supervision of the Department of Corrections, at the attorney’s option.” A cursory reading of the above rule discloses three essential rules regarding presentence report disclosure prior to appeal. Initially, the sentencing court must divulge the contents of the report to the defendant or defense counsel, as well as to the prosecuting attorney. Each side must then be afforded a full opportunity to contest or explain factual assertions contained in the report. Finally, if the sentencing judge deems it advisable to exclude certain factual, opinion, or diagnostic infor-. mation in the report from disclosure, an explanation of the basis for the exclusion must be provided. We cannot conclude that defendant was permitted his full right "to inspect the presentence report” in the instant case. The court rule above does not limit the defendant’s right of inspection only to those portions of the report available on the day of sentencing. Rather, the defendant’s right of inspection extends to the entire report, with the single exception of those matters properly deleted under the court rule. We hold, therefore, that the defendant herein was denied his right to inspect his presentence report prior to the imposition of sentence. The defendant’s case is thus remanded for a new sentencing at which an updated presentence report will be prepared and the defendant will be permitted to inspect ánd respond to its contents. Remanded for a resentencing._ We note Department of Corrections Rule 910(1), 1977 AACS R 791.9910, which provides: "Rule 910. (1) A presentence report shall contain at least the following information: "(g) Recommended disposition, unless prohibited by the sentencing court.” See also People v Books, 95 Mich App 500, 504-505, fn 5; 291 NW2d 94 (1980).
[ 25, -60, -12, 11, -19, -60, -50, -35, -93, 1, -42, -46, 9, -27, 31, 6, -39, 46, -16, -29, -45, 10, 77, 76, 29, 0, -7, 14, 26, -18, 38, 14, -20, -18, 41, -51, 37, -17, 13, 46, -22, 27, 20, -6, -93, -8, 19, 20, 5, -8, 24, 26, -25, 31, 25, -20, 30, -4, -30, 33, -13, 28, -43, -2, 42, -20, 26, -5, -29, -22, -48, 3, -17, 38, 37, -41, 13, -37, 79, -12, 11, -11, -8, -4, 9, -10, 2, -68, 40, 25, 19, -17, -57, -26, -8, 13, 6, -70, 25, 5, -30, 37, 10, -10, -5, -2, -28, -33, 25, 70, 25, 45, 10, -50, -8, -4, -20, -43, -26, 43, -49, -38, -7, 22, 46, -21, 44, -42, 11, -19, -22, 29, 45, -4, 3, 47, -9, -6, -41, 0, -49, 1, 85, -6, 85, 20, -28, -7, 10, 9, 20, 30, -41, 18, -15, -27, 9, -47, -39, 13, 62, 26, -117, -12, 38, 2, 4, -9, 29, -34, -8, 25, 61, 44, -19, -35, -26, 46, 9, 49, -6, 16, 14, -22, 0, -14, 6, 2, -53, -15, -14, 12, 21, 14, 71, -30, -15, 53, 17, 10, -57, 32, 24, 74, 51, -49, -2, -30, 27, -5, -25, -21, 16, -21, 37, -51, 24, -33, 2, 52, -42, -22, 0, -58, -65, 10, 17, 29, 31, -19, 26, -42, -14, 17, 23, 26, 45, 3, 49, -45, -10, -29, 30, -32, 28, 39, -35, 7, -64, -41, -41, -6, 12, -75, -69, -12, 11, -9, -52, -19, -6, 16, 0, 20, -49, 73, -22, -22, 0, -38, 10, -14, 11, -1, -2, 17, -35, 14, 27, 46, 15, 44, 16, -11, -53, -4, -41, 13, 22, 40, 61, -20, -34, -16, 54, 23, -37, -25, -29, 21, 42, 25, 23, 14, -5, -23, -5, 6, 0, -11, 53, -5, 42, 17, 15, 8, -14, -22, 28, -26, -20, 2, 10, -61, 17, 24, -6, -6, 42, 14, -43, 6, -12, 5, -15, 13, -55, 34, 36, 26, -20, -12, 1, -6, 8, 15, -23, 19, 14, -11, 0, 13, 19, 1, 12, -32, -24, -53, -8, -11, 28, -47, -13, -12, 11, 24, -2, 15, 76, 7, 0, -1, -25, -52, -42, 2, 60, -46, -33, 0, -47, 17, 41, 2, 23, -18, -65, 67, 68, 15, 7, -10, -10, -36, -9, 29, 0, 40, 40, -41, 18, -36, 19, 34, -2, -1, -56, 27, 17, 40, 38, 19, 0, 29, 16, -27, 9, -27, -3, -9, -30, -21, 27, 5, -36, 1, -22, 28, -3, -31, -1, 7, 4, -48, -25, 49, -66, 10, 6, -1, 7, -9, -26, -17, 19, -9, -11, -20, -4, -6, -54, 36, -13, -18, -35, 4, -16, 49, 11, -10, -4, -56, -44, 2, 81, -48, -31, 27, -19, -20, 36, -16, -30, 33, -10, 51, -37, 35, 6, -6, 15, 5, -21, -19, -55, 33, -20, -35, -6, -8, -50, -24, 37, -33, -41, -26, 14, -49, 22, -5, -12, -11, 0, -10, 28, -8, 29, -10, 35, -22, 12, -15, -5, 9, 6, -58, 2, -4, 0, 9, 11, -33, 26, -25, -85, 7, -21, -23, -27, 34, 47, -30, 0, -64, 47, 15, -32, -20, 17, 51, -22, 34, -37, -36, 50, 35, -10, -3, 37, 9, -8, -11, 5, -38, 10, -33, -3, 48, 49, -49, 5, 52, 26, 53, -5, 23, -86, -37, 44, -11, 12, -5, -13, 11, 6, 34, -9, 16, 37, -3, 53, 34, -23, -38, -30, 16, -11, -40, 4, -31, -45, 59, -14, -7, -26, -38, 18, -60, 6, 24, 45, 55, -9, -30, 1, 20, 14, 26, 26, -35, 38, -41, -38, 18, -62, -2, 13, 27, -56, 32, 26, 19, 15, 7, 0, -25, -20, -8, -14, -27, -7, -5, -13, -35, -13, -5, -18, -11, -8, 12, -20, 16, 9, -28, 20, -23, 27, 33, 31, 37, 7, 12, 5, -18, -8, -8, -41, 15, 41, -3, -5, 38, -18, -44, -16, -18, 16, 2, 71, -11, 23, -13, -22, 47, -26, -16, -36, -32, -11, 18, -55, 4, -1, -20, -1, -17, -31, 17, 71, 63, 2, 9, 26, -9, 42, -26, 47, 8, -84, 51, -28, -27, 29, -32, 9, -35, -30, -23, 3, -49, -16, 38, -18, 15, 22, -3, -22, -17, 36, 67, -13, 25, 25, 34, 66, 11, 3, 4, 24, -1, 23, 7, 16, -10, 42, 5, -22, -57, 10, 6, 20, 27, -47, -15, 1, 57, -57, -12, 6, -38, 40, 53, -7, 27, -47, 58, 38, -23, -11, 0, -8, 15, -52, 3, -56, -18, 37, -2, 26, 33, -39, -44, 13, -16, -39, -19, -29, -2, 3, -12, -36, 21, -46, 25, 13, -17, -2, -41, -32, -5, -28, -23, -40, 36, 37, 0, 12, 9, 22, 22, 13, 27, 53, 28, 6, 8, -2, 37, 57, 13, 20, 39, -33, 49, 40, -61, -10, -33, 29, -38, 14, 23, 13, 4, 43, 40, 45, -11, 12, 7, 12, -8, 19, 75, 7, 0, 29, 27, -6, -59, 35, -23, -16, -6, -36, -46, -5, -18, -2, 6, 38, -16, -49, -10, -33, -32, -41, 0, 0, -7, 0, 41, -5, -23, -14, 42, 7, -27, 52, -6, 15, 8, 19, -4, -9, 56, -49, 25, -36, -39, -5, -19, 9, -15, 42, 7, 8, -20, -24, -33, -21, 11, -16, 5, -29, -16, 44, 15, -31, -26, 0, -19, 48, 25, 66, 9, -37, 8, 6, 54, 1, 12, -24, -2, 20, -22, -62, 15, 27, 40, -2, 79, -6, -39, -9, -50, 10, -2, -29, 39, 16, -29, -8, -42, 33, 9, -8, -13, -23, -19, -7, 37, -44, -36, -15, 23, -36, -35, -31, 0, -49, -41, -17, -14, -20, 27, 42, 3, 3, -6, -64, 1, -25, -21, 45, 14, -84, -18, 17, 17, 13, -54, 7, 16, 1, 21, -37, -17, 4, 6, -36, -11, 42, 3, -27, 48, 2, 41, 12, -37, 33, -14, -29, 56, 32, 67, 12, -36, 9, 6, -30, 46, 6, -25, -14, 27, 8, 17, -6, 20, 59, 35, 16, -19, -6, -34, 4, -46, 1, 14, -19, 41, -27, 17 ]
McAlvay, J. In this cause plaintiff brought suit as administratrix of her deceased husband against defendant to recover damages arising from injuries received by him which resulted in his death while in the employ of defendant company, caused, as is claimed, by the negligence of defendant. The trial of the issue joined in the cause resulted in a substantial verdict in favor of the plaintiff. The case is before this court for review upon errors assigned. There appears to be but little dispute relative to the material facts involved in this case, which may be stated as follows: Plaintiff's decedent, at the time of the accident, was employed by defendant as a freight conductor and was working with his crew switching cars in its yard at Bay City, where defendant railroad, which was engaged in interstate commerce, owned and used in its business a freighthouse located near the Saginaw river. This building was about 80' feet wide and 240 feet long, extending in length north and south. It was a substantial frame building, boarded and covered with corrugated iron on the outside. In the center of the north end is an opening 17% feet high above the top of the steel rails, and about 23 feet wide, through which are laid two parallel gauge tracks, running south into the building parallel with each other about 225 feet. The distance between these tracks is 6 feet 4 inches. Freight cars are run in and out upon them. The east track inside the building will hold six ordinary freight cars. The west track is a little shorter. Sliding doors were hung upon the above-described opening, through which the freight cars were taken in and out upon these tracks. On each side of this opening is a post 10 by 8 inches, resting upon a sill 10 by 10 inches, which forms the framework of the sides of the door. East of the easterly track inside the building is the platform or floor of this freighthouse, 3 feet and 11 inches above the top of the rail, and 3 feet 4 inches east of the easterly rail and parallel with it. This floor is built upon piers, and extends to the east side of the freight-house and its entire length from the north end to the freight offices on the south. It is about as high as the floor of the cars standing upon this track. Freight is unloaded from the cars onto this floor, where it is piled up or removed to the outside platform through the east doors. The outside of the door of an ordinary car standing upon this east track would be about 13 inches from the edge of this floor of the freighthouse. The west line of this floor of the freighthouse was flush with the west face of the east post of the north door above described, and they were the same distance from the east rail of the easterly track. The freight offices of defendant company occupied the entire south end of the freighthouse beyond the snubbing posts at the end of these tracks. The floor of these offices was level with the freighthouse floor. On the west side of the west track there was a floor of the same character as that on the east side just described. There were doors on the east and west sides of the building and also two others doors in the north end, each about 15 feet away from the opening we have above described through which the cars went. The freighthouse is lighted from above by windows set into an elevation in the peak of the roof, making a skylight extending along the entire length of the roof over the freightroom. Merchants’ Dispatch refrigerator cars are somewhat wider than ordinary freight cars, and from measurements given the distance from the face of the east doorpost to the side of such car with tiie car doors closed is 11 inches. With these car doors opened and hooked back this distance is between 3 and 4 inches. All cars are pushed into this freighthouse on these tracks by a locomotive. On the day of the accident, decedent, as conductor, was placing upon this east track five cars, the middle one of which was a Merchants’ Dispatch refrigerator car. These refrigerator cars had been handled by defendant company in and about this .yard and freighthouse for 15 years. By reason of the difference in the height of the freight-house floor above the car floor, which would not allow refrigerator car doors to be opened inside, it was necessary to open such doors and hook them back before putting them into the freighthouse. These cars had been picked up in the yard by decedent as conductor and Brakeman Jones, who with the engineer and fireman made up this crew, and as they were backed around the curve toward the freight-house, Jones, because of the curve to the east, to be able to signal the engineer, was riding on the east side of the car, which would first enter the freighthouse. Jones dropped off from the car when it was a few car lengths away from the freighthouse and moving slowly. He saw decedent, who had crossed the ya*rd to the freighthouse, standing east of the east track at the north door. He also saw Raymond, the freight-house foreman. Decedent, who had full control of this train, gave his signal to stop, which was immediately obeyed. Raymond then broke the seal of the refrigerator car and opened the doors, hooking back one door while Jones hooked the other. This was done in the presence of decedent, who at the time stood within two car lengths, looking at them. Before backing the cars into the freighthouse it was the conductor’s duty to go up to the entrance and call out a warning to the men working inside that cars were to be backed in. Decedent gave this warning, and then signaled to back the train. In answer to this signal the cars started to back up slowly. He was standing not far from this east doorpost, which was the customary and proper place for a conductor to stand when he was placing cars in the freighthouse. He was looking toward the cars when they started to back, and then turned to look inside the freighthouse for a moment. He then turned his face north toward the cars, then looked south inside again, when Jones, who saw him step nearer to the opening, shouted to him, “Look out for the doors.” Decedent turned and looked at Jones, who was standing near the cars, and then looked back into the freighthouse. While he stood in that position he was caught between these car doors and the post and fatally injured. Jones, who saw what happened, signaled the engineer to stop the train, which was done at once. This accident occurred September 7, 1910, at about 2 o’clock p. m., on a bright, clear day. Decedent was at the time engaged in moving this refrigerator car, which contained an interstate shipment. He was an experienced freight conductor, acquainted with all the duties of such position and with all the conditions and surroundings of the work at this freighthouse, where he had been engaged in charge of switching operations continuously for a period of at least six years prior to the accident, during which time cars like the one by which he was injured were brought to this freighthouse every day and night in the same manner as the one on this occasion. There were several counts contained in plaintiff’s declaration, all but one of which were abandoned upon the trial. This count upon which the case was submitted to the jury was based upon the Federal employer’s liability act. This count charged the breach of seven distinct duties, which, briefly stated, alleged negligence on the part of defendant in failing to provide intestate with a reasonably safe place to work; failure to provide a suitable depot and all appliances for the purpose for which they were employed; failure to build, construct, and maintain freighthouse entrances sufficiently large to be reasonably safe while looking along the sides of moving cars, so that intestate would not be required, when looking into the freighthouse in order to place the cars, to be in dangerous proximity to open refrigerator car doors; also charging that by reason of such negligence intestate, while employed in interstate commerce, performing his duties in placing cars in this freighthouse, in the exercise of due care, was caught between the open door of a refrigerator car and the side of the entrance to the freighthouse, causing injuries from which he died. The record shows that during the trial of the case counsel for plaintiff stated, “We do not claim breakage, or anything of that kind,” and it is clear from the record that the only claimed negligence alleged and relied upon is that this freighthouse, which was built years before, when freight cars were smaller, did not have an entrance of sufficient width to allow trainmen to stand near it with safety while performing the work of placing these large cars within the freighthouse. This claim is briefly stated in plaintiff’s brief, as follows: “We claim that, when the cars in use on these tracks became of such a size that the trainmen could no longer stand beside the door and do their work in safety, some provision should have been made therefor, either by widening the door, making a window, or other suitable opening through which the men could look in safety, or providing some place where they could stand to do their work without being in constant danger of being struck by cars.” The record shows that this freighthouse and tracks in it were constructed in 1883 in accordance with plans of the engineer of the road, and was in accordance with the general plan of building such freight-houses and tracks for unloading purposes. There was no evidence in the case that any other railroads ever constructed freighthouses and tracks different from this one of defendant. It also appeared that there never before had been an accident at this place. It appears from the record that at the close of plaintiff’s evidence defendant’s counsel also rested its case upon the record as it then stood. Defendant then moved the court to direct a verdict in its favor and against plaintiff of no cause of action, for the following reasons: First, that there was no evidence showing, or tending to show, that defendant was guilty of any negligence that tended to cause or produce the accident resulting in the injuries to plaintiff’s decedent; second, that the happening of the accident could not be considered as evidence of defendant’s negligence; third, that by the undisputed evidence the accident resulting in the death of plaintiff’s decedent occurred as an ordinary risk of the business, and that the risk was assumed by the plaintiff’s decedent; fourth, that under the undisputed evidence the plaintiff was not entitled to recover. The court denied this motion and counsel for defendant excepted. Plaintiff’s counsel then elected, as already stated, to go to the jury upon the count based upon the Federal employer’s liability act. Counsel for defendant called the court’s attention to the fact that this count charged the defendant with the violation of seven distinct duties, and asked the court to compel counsel for plaintiff to elect upon which of these allegations of negligence they relied. The court refused to compel such election, and defendant’s counsel excepted. The record also shows that plaintiff’s counsel asked to have the jury view the premises where the accident occurred. To this request defendant’s counsel objected. The court overruled such objection, and ordered the jury taken to the premises for that purpose. To this ruling and order defendant’s counsel excepted. Counsel for defendant proffered 24 requests to charge, which were refused by the court, and counsel excepted. A motion for a new trial was made later and refused, and reasons in writing were filed for denying the same, to which counsel for defendant excepted. The grounds upon which the motion for a new trial was based, other than those contained in the motion for a directed verdict, were: Because the verdict was against the weight of the evidence; because the damages allowed by the jury’s verdict were unwarranted and excessive; and because plaintiff’s decedent was guilty of contributory negligence. Although the errors assigned by appellant are quite numerous, all but a few of them have been grouped by counsel for defendant, and those relied upon are considered under two general propositions: First, that neither defendant nor any of its employees were guilty of any negligence causing or tending to cause plaintiff’s injury; second, that in any event it appears from the record that plaintiff assumed the risk. These questions are duly raised by errors duly assigned upon exceptions taken to the denial of motions made and to certain portions of the charge of thé court and to the refusal to give certain requests to charge proffered by defendant, all in due and sufficient form, so that it will not be necessary to state them at length. It is the contention of defendant and appellant that the record contains no evidence of negligence on its part. The consideration of this proposition will be much more easily presented when the negligence relied upon by plaintiff is clearly understood. As to the material facts in the case, there is practically no dispute between the parties, and from the statement already quoted from plaintiff’s brief it appears that the sole negligence upon which this action is founded is, as already quoted from plaintiff’s brief, as follows: “We claim that, when the cars in use on these tracks became of such a size that the trainmen could no longer stand beside the door and do their work in safety, some provision should have been made therefor, either by widening the door, making a window, or other suitable opening through which the men could look in safety, or providing some place where they could stand and do their work without being in constant danger of being struck by cars.” This eliminates the consideration of any and all negligence arising from all other sources, and bases the negligence relied upon entirely upon the construction of the tracks and the freighthouse. These tracks and this freighthouse were within the railroad yard of defendant company, and this work which plaintiff’s decedent was doing at the time of his injury, while engaged in interstate commerce, was within the same yard. This contention of plaintiff is based upon the claim that the evidence tends to show: “That it was necessary for decedent to stand where he did and look into the building, and that he was doing this work in both of these particulars in the usual and ordinary manner, and in the only way in which it could be done, or ever had been done, by men of experience in the work, and that no one could stand in the usual and necessary position and look into the building without getting close enough to the cars to be caught as decedent was, unless he succeeded in dodging back every time a wide car or open door approached.” Plaintiff follows this by again stating: “There was no defect rendering this place unsafe in the sense of anything being broken or out of repair, but the place was defective and insufficient, in that it had become unsafe for and unsuited to the work required to be done.” Plaintiff thereby claiming that the case is within the provisions of section 1 of the Federal employer’s liability act (35 U. S. Stat. 65), which provides that a common carrier railroad, while engaged in interstate commerce— “shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce * * * for such injury * * * resulting * * * by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, * * * or other equipment.” It is clear from the record that this narrow space between the freighthouse floor and the sides of the cars on this east track, at most but 13 inches wide, was not a sufficient space for the men to stand and work, and plaintiff admits: “There was no necessity for the men to work inside this building between the, platform and the cars, and they were not expected to do so.” The foregoing states fully and at length the theory of plaintiff’s case largely as presented to this court in the exact words of counsel. It is the contention of counsel for defendant that this claim of plaintiff does not state a case which constitutes negligence under the statute upon which this suit is brought; that the record clearly shows this train was not handled upon that day any different from the ordinary and usual way in placing trains and cars in defendant’s freighthouse. It may be stated without contradiction that the statute sued upon does not make the employer an insurer of the lives of its servants, and does not give a right of action for which the employer is made liable, unless negligence is shown. The negligence claimed in the instant case deals exclusively with the construction of this freighthouse and these tracks, used in this railroad yard by the defendant for about 30 years exactly in the same manner as it was used upon the day of decedent’s injury, and for 15 years of that time used continuously in handling these refrigerator cars, with other cars, all of which appears without dispute. As already stated, the construction of this freighthouse was upon the plans of the engineer of the road and in accordance with the general plan of building such freighthouses and tracks for unloading purposes. Plaintiff introduced no evidence to show that this was faulty construction, unusual or different from the manner in which freighthouses of other railroad companies were constructed and operated. Where work is done and cars are switched and handled in the usual and customary way, with the usual precautions, negligence will not be presumed, but it must be proved that such usual manner is in itself improper. This court has so held. “No negligence was established against the defendant. Gang planks of the same character had been used by the defendant for 15 years, and no accident had before occurred in their use. It cannot be said, as a matter of law, that it was negligence to use such a tool. * * * Defendant was using an appliance which long experience had shown to be safe. The law did not require it to do more.” La Pierre v. Railway Co., 99 Mich. 212, at page 214 (58 N. W. 60, at page 61). This claim of plaintiff upon which recovery is based, reduced to its lowest terms, is that for the purposes of present use this freighthouse and these tracks were negligently constructed. It is well settled that the rule relative to structures erected near railroad tracks on a main line and that relative to structures within railroad yards are entirely, different as far as liability for negligence by railroad companies to their employees is concerned. We have already stated the only negligence upon which plaintiff relies in the instant case, and have already given in detail the length of time plaintiff’s decedent had been engaged in this work at this place, his intimate knowledge of all the surroundings, and the manner in which he for years had performed the identical service in which he was engaged at the time of the accident, his absolute control at this time of the cars which were being placed within this freighthouse, and his knowledge of the nearness of the east track to the doorpost and floor of the freighthouse. Our conclusion is that from all the evidence in the case no negligence on the part of defendant has been shown. In a recent opinion handed down by this court, where an employee of a railroad company, who had been injured while riding into a roundhouse on the side of an engine tender of greater width than usual, which left so narrow a space between the side of the engine and the jamb of the door that he was caught and severely injured, and also where the counts in the declaration were predicated upon the liability of defendant under the Federal employer’s liability act, as well as the State act, this court said:. _ “Liability of a common carrier railroad company, either under the Federal or State act, to its employees in case of injury, must be based upon some negligent act of the railroad company. * * * We are of opinion that the failure of the defendant to notify plaintiff of the danger in riding the tender into the roundhouse in the position assumed by him at the time of his injury was not negligence. The danger of assuming such a position upon any of the engines was an obvious one.” Hollingshead v. Railway Co., 181 Mich. 547 (148 N. W. 171). This court also in the same case holds as follows: “The rule which protects railroad employees from the existence of structures upon the right of way too close to the track is not applicable in a case of this character” (citing and quoting at length from Hogan v. Railroad Co., 209 N. Y. 20 [102 N. E. 555]). 2. In answer to the appellant’s contention that in this case plaintiff’s decedent assumed the risk of his injury, plaintiff insists that the defense of assumption of risk is not available in actions for personal injuries brought under the Federal employer’s liability act, arguing, not only that it is abrogated by the terms of the statute, but also that the statute, being remedial in character, should be construed to advance the remedy. The case was submitted to the jury by the trial court upon plaintiff’s theory. Plaintiff further claimed at the time the case was submitted to this court that the question had not been passed upon by the Supreme Court of the United States, and that the weight of the authorities of the States and the Federal circuit courts of appeals favored the contention. An examination of the Federal authorities satisfies us that at that time there were indications in several opinions of the Federal Supreme Court of a contrary view. Later that court, in deciding the case of Seaboard, etc., Railway v. Horton, 233 U. S. 492, 34 Sup. Ct. 635, distinctly held that the defense of assumption of risk was available. That case came into the United States Supreme Court from the supreme court of the State of North Carolina. It was a case brought under the Federal employer’s liability act by plaintiff to recover damages for personal injuries sustained by him while engaged in interstate commerce, such injuries claimed to have been caused by the negligence of defendant in furnishing a defective water gauge for the steam boiler of his engine. On account of the importance of this case as the first positive utterance of that court, in construing the Federal employer’s liability act, bearing upon the issue of assumption of risk, we have quoted practically the entire opinion bearing upon the question. Mr. Justice Pitney delivered the opinion of the court. After a "brief statement of the facts in the case, and denying three motions to dismiss the writ of error as technical and without merit, the court said: “Coming now to the merits, we need consider only certain assignments of error that are based upon exceptions to the action of the trial judge in giving and refusing to give instructions relating to the issues of defendant’s negligence, the assumption of risk, and contributory negligence. “At the outset we observe that the judge evidently misapprehended the effect of the Federal act upon State legislation. Thus the jury was told that plaintiff had brought the action under the Federal statute; ‘And where Congress enacts a law, within the limits of its power, that law should be enforced uniformly throughout the entire United States. If it is in conflict with the State law, the State law is superseded. But where there is no conflict expressed by the statute of the United States, then the rule of the State prevails.’ This, of course, in the absence of a specific statement of the applicable rule of the State law, might be treated as academic. But the theory was carried into the specific instructions, to the extent that upon the questions of the employer’s duty and the assumption of risk by the employee, the charge was modeled rather upon the North Carolina statute than upon the act of Congress. * * * “Upon the issue of defendant’s negligence, -the trial court charged the jury as follows: .‘It is the duty of the defendant to provide a reasonably safe place for the plaintiff to work, and to furnish him with reasonably safe appliances with which to do his work.’ And in various other forms the notion was expressed that the duty of defendant was absolute with respect to the safety of the place or work and of the appliances for the work. Thus: ‘If you find from the evidence that it [the locomotive engine] was turned over to him without the guard, and if you further find from the evidence that the guard was a proper safety provision for the use of that gauge, and that it was unsafe without it, then the defendant did not furnish him a safe place and a safe appliance to do his work, and if it remained in that condition it was continuing negligence on the part of the defendant, and if he was injured in consequence thereof, if you so find by the greater weight of the evidence, you should answer the first issue “Yes.” ’ “In these instructions the trial judge evidently adopted the same measure of responsibility respecting the character and safe condition of the place of work, and the appliances for the doing of the work, that is prescribed by the local statute. But it is settled that since Congress, by the act of 1908, took possession of the field of employer’s liability to employees in interstate transportation by rail, all State laws upon the subject are superseded. Second Employer’s Liability Cases, 223 U. S. 1, 55 [32 Sup. Ct. 169, 38 L. R. A. (N. S.) 44]. “The act is quoted in full in that case at page 6 (at page 169 of 32 Sup. Ct., 38 L. R. A. [N. S.] 44). By its first section a right of action is conferred (under conditions specified) for injury or death of the employee ‘resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.’ “This clause has two branches: the one covering the negligence of any of the officers, agent, or employees of the carrier, which has the effect of abolishing in this class of cases the coqimon-law rule that exempted the employer from responsibility for the negligence of a fellow employee of the plaintiff, and the other relating to defects and insufficiencies in the cars, engines, appliances, etc. But, plainly, with respect to the latter as well as the former ground of liability, it was the intention of Congress to base the action upon negligence only, and to exclude responsibility of the carrier to its employees for defects and insufficiencies not attributable to negligence. The common-law rule is that an employer is not a guarantor of the safety of the place of work or of the machinery and appliances of the work; the extent of its duty to its employees is to see that ordinary care and prudence are exercised, to the end that the place in which the work is to be performed and the tools and appliances of the work may be safe for the workmen. Hough v. Railway Co., 100 U. S. 213-217; Washington, etc., R. Co. v. McDade, 135 U. S. 554-570 [10 Sup. Ct. 1044]; Choctaw, Oklahoma, etc., R. Co. v. McDade, 191 U. S. 64-67 [24 Sup. Ct. 24], To hold that under the statute the railroad company is liable for the injury or death of an employee resulting from any defect or insufficiency in its cars, engines, appliances, etc., however caused, is to take from the act the words ‘due to its negligence.’ The plain effect of these words is to condition the liability upon negligence; and, had there been doubt before as to the common-law rule, certainly the act now limits the responsibility of the company as indicated. The instructions above quoted imposed upon the employer an absolute responsibility for the safe condition of the appliances of the work, instead of limiting the responsibility to the exercise of reasonable care. In effect, the jury was instructed that the absence of the guard glass was conclusive evidence of defendant’s negligence. In this there was error. ■ “The questions more particularly discussed, however, and upon which the decision seems to have turned in the supreme court of North Carolina, pertain to the issues of assumption of risk and contributory negligence. By section 3 of the act of 1908 it is declared that: ‘The fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee: Provided, that no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where "the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.’ And by section 4: ‘Such employee shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier * * * contributed to the injury or death of such employee.’ By the phrase ‘any statute enacted for the safety of employees,’ Congress evidently intended Federal statutes (citing such statutes). For it is not to be conceived that, in enacting a general law for establishing and enforcing the responsibility of common carriers by railroad to their employees in interstate commerce, Congress intended to permit the legislatures of the several States to determine the effect of contributory negligence and assumption of risk, by enacting statutes for the safety of employees, since this would, in effect, relegate to State control two of the essential factors that determine the responsibility of the employer. “It seems to us that section 4, in eliminating the defense of assumption of risk in the cases indicated, quite plainly evidences the legislative intent that in all other cases such assumption shall have its former effect as a complete bar to the action. And, taking sections 3 and 4 together, there is no doubt that Congress recognized the distinction between contributory negligence and assumption of risk; for, while it is declared that neither of these shall avail the carrier in cases where the violation of a statute has contributed to the injury or death of the employee, there is, with respect to cases not in this category, a limitation upon the effect that is to be given to contributory negligence, while no corresponding limitation is imposed upon the defense of assumption of risk — perhaps none was deemed feasible. “The distinction, although simple, is sometimes overlooked. Contributory negligence involves the notion of some fault or breach of duty on the part of the employee, and since it is ordinarily his duty to take some precaution for his own safety when engaged in a hazardous occupation, contributory negligence is sometimes defined as a failure to use such care for his safety as ordinarily prudent employees in similar circumstances would use. On the other hand, the assumption of risk, even though the risk be obvious, may be free from any suggestion of fault or negligence on the part of the employee; the risks may be present, notwithstanding the exercise of all reasonable care on his part. Some employments are necessarily fraught with danger to the workmen — danger that must be and is confronted in the line of his duty. * * * And a workman of mature years is taken to assume risks of this sort, whether he is actually aware of them or not. But risks of another sort, not naturally incident to the occupation, may arise out of the failure of the employer to exercise due care with respect to providing a safe place of work and suitable and safe appliances for the work. These the employee is not treated as assuming until he becomes aware of the defect or disrepair and of the risk arising from it, unless defect and risk alike are so obvious that an ordinarily prudent person under the circumstances would have observed and appreciated them. These definitions have been recognized and applied in numerous decisions of this court (citing cases). “When the employee does know of the defect, and appreciates the risk that is attributable to it, then if he continues in the employment, without objection, or without obtaining from the employer or his representative an assurance that the defect will be remedied, the employee assumes the risk even though it arise out of the master’s breach of duty. If, however, there be a promise of reparation, then during such time as may be reasonably required for its performance, or until the particular time specified for its performance, the employee, relying upon the promise, does not assume the risk, unless at least the danger be so imminent that no ordinarily prudent man under the circumstances would rely upon such promise (citing cases). “In the light of these principles, the rulings of the trial court in the case at bar must be considered. “Defendant specifically requested an instruction that plaintiff’s right to recover damages was to be determined by the provisions of the Federal act, and that: Tf you find by a preponderance of evidence that the water glass on the engine * * * was not provided with a guard glass, and the condition of the glass was open and obvious and was fully known to plaintiff, and he continued to use such water glass with such knowledge and without objection, and that he knew the risk incident thereto, then the court charges you that the plaintiff voluntarily assumed the risk incident to such use, and you will answer the second issue, “Yes.” ’ The court gave this instruction as applicable to the issue of contributory negligence, and instead of the words ‘then the court charges you that the plaintiff voluntarily assumed the risk incident to such use, and you will answer the second issue “Yes,” ’ used the words, ‘then the court charges you that the plaintiff was guilty of contributory negligence, and you will find the third issue “Yes.” ’ To the refusal to give the instruction as requested, and the modification of it, defendant excepted. “The trial court evidently deemed, as did the State supreme court, that the topic of assumption of risk, with reference to the circumstances of the case, was sufficiently and properly covered by the instruction actually given, as follows: After stating in general terms that ‘a man assumes the risk, when he takes employment, incident to the class of work which he is to perform/ but that ‘he does not assume the risk incident to the negligence of his employer in providing machinery and appliances with which he is to work/ the court proceeded as follows: “ ‘On the other hand, the employer has the right to assume that his employee will go about the work in a reasonably safe way, and give due regard to the machinery and appliances which are in his hands and under his control, and if you should find from the evidence, by its greater weight, because the burden in this instance is on the defendant, that the plaintiff knew of the absence of the guard or shield to the water gauge and failed to give notice to the defendant, * * * whose duty it was to furnish the water gauge and appliance, and he continued to use it without giving that notice, it being furnished to him in a safe condition, then he assumed the risk incident to his work in the engine with the glass water gauge in that condition, although he might have handled his engine in every other respect with perfect care/ (Italics ours.) (The above italics are those of the Federal Supreme Court.) “It will be observed that by this instruction the application of the rule of assumption of risk was conditioned upon the jury finding that the water gauge, when furnished to the plaintiff, was in a safe condition. Here again the court appears to have followed the local statute, rather than the act of Congress; for section 2646, Nor. Car. Revisal 1905, already quoted, has been held by the State supreme court to abolish assumption of risk as a bar to an action by a railroad employee for an injury attributable to defective appliances furnished by an employer. Coley v. Railroad Co., 128 N. C. 534 [39 S. E. 43, 57 L. R. A. 817]. The trial court, while recognizing that the act of Congress applied so far as its terms extended, but that by its terms the employee is not to be held to have assumed the risk in any case where the violation by the carrier of a statute enacted for the safety of employees contributed to the injury, at the same time held that, since no statute had been enacted covering such an appliance as the water glass gauge, the rights of plaintiff were such as he would have had under the State law. An instruction to the jury to this effect preceded the instructions we have just quoted. “It is true that such an appliance as the water gauge and guard glass in question is not covered by the provisions of the safety appliance act [27 U. S. Stat. 531 (U. S. Comp. Stat., §§8605-8612)], or any other law passed by Congress for the safety of employees. * * * But the necessary result of this is, not .to leave the employer responsible for the consequences of any defect in such appliance, excluding the common-law rule as to assumption of risk, but to leave the matter in this respect open to the ordinary application of the common-law rule. The adoption of the opposite view would, in effect, leave the several State laws, and not the act of Congress, to control the subject-matter. “By the instruction as given the application of the rule of assumption of- risk was confined to a single hypothesis that the jury should find the guard glass was in position when the engine was delivered to plaintiff on the morning of July 27th. This, as already pointed out, was one of the questions in dispute, plaintiff having testified that the guard glass was missing at that time, while his fireman testified (and in this was corroborated by circumstantial evidence) that it was in place at that time, and was subsequently broken. But by the common law, with respect to the assumption by the employee of the risk of injuries attributable to defects due to the employer’s negligence, when known and appreciated by the employee and not made the subject of objection or complaint by him, it is quite immaterial whether the defect existed when the appliance was first placed in his charge or subsequently arose. Hence, if the guard glass was missing when plaintiff first took the engine, as he testified, and he, knowing of its absence and the consequent risk to himself, continued to use the water gauge without giving notice of the defect to the defendant or its representative, he assumed the risk. _ _ “Defendant was entitled to have the requested instruction given respecting assumption of risk; and, as the charge actually given did not cover the same ground, there was error. * * * “The judgment of the supreme court of North Carolina must be reversed, and the cause remanded for further proceedings not inconsistent with this opinion.” In plaintiff’s brief it is admitted: “If the common-law doctrine of assumed risk is applicable in this case, it was improperly submitted to the jury under the charge as given, as the trial court was of the opinion that there was no assumption of risk in any case where the statute created liability.” This question of assumed risk has been decided by the Supreme Court of the United States against the contention of plaintiff in Seaboard, etc., Railway v. Horton, supra. It follows that no further discussion is necessary. The trial court was in error in not granting defendant’s motion, made at the close of plaintiff’s case, for an instructed verdict in its behalf, both upon the ground that no negligence on the part of defendant was shown, and also that plaintiff’s decedent assumed the risk of his injury. The judgment of the circuit court is reversed, and no new trial is granted. Brooke, C. J., and Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.
[ -17, 16, -2, 9, -18, 5, -10, 0, 22, -2, -38, -28, 15, 3, 32, -8, 12, -19, -23, -25, 7, -46, -26, -17, -74, 10, -7, -7, -35, 3, -11, 20, -27, -27, 10, 53, 17, -19, -26, -19, 0, -40, 2, -41, 32, 14, 81, 13, 59, 15, -10, -14, -3, -14, 24, -31, -19, 50, -7, 45, 28, -19, 7, -35, 21, 17, 40, -1, -34, 29, 8, 29, 8, 7, 8, -12, -23, 0, 11, 2, -10, 18, 60, -17, -30, 17, -48, -37, -79, 12, -40, -7, -34, 49, 13, 19, -49, 14, 5, 8, -29, 34, -9, -33, -33, 6, -3, 0, -8, 6, 27, 38, 24, 40, 23, -1, 53, -8, -42, 27, 4, 0, 0, -59, -44, -17, 45, 33, 10, 22, 41, 38, -31, 15, 41, -7, 26, -10, -3, 39, 22, 43, 1, 0, -48, 41, -16, 15, -41, -66, -11, 36, 2, -55, 6, -15, 8, 19, 29, 23, 43, 12, 75, -21, -61, -20, -26, -21, -6, -11, -23, -27, 25, -37, 47, 27, 8, -23, -76, 18, -10, -27, 44, 4, -36, -3, 30, -7, -10, -53, 74, -2, -22, -12, -31, 17, 6, 1, 29, 30, 30, -44, -26, -14, -14, 17, -24, 0, 10, -26, 50, -26, -53, -39, 18, -8, -1, -14, -2, -73, -16, -11, 31, 0, -14, -56, -10, -7, 46, -19, 33, -39, 57, 1, -13, -3, -10, -43, 37, -26, 46, 16, -26, -40, -6, -17, -38, -6, -44, 23, 20, -21, -33, 11, 45, 3, 0, 35, -19, -2, 0, 43, -54, 54, 52, 19, 1, 11, -42, -13, -2, -24, 38, 19, -2, -32, -12, 68, 18, 24, 33, -27, -49, -24, -53, 7, -12, 14, -27, 17, -18, -15, 5, 7, 29, 5, 48, -21, -47, -29, -41, -6, -13, -10, -4, 79, -54, 2, -21, 19, 15, -18, 9, -19, 48, -10, 2, 29, 16, -22, -13, 10, -53, -48, 38, 3, 54, 2, -8, -1, 43, 28, 1, 44, -52, -22, -6, 46, 37, -23, 34, 18, 55, 4, -31, -21, 66, -35, 7, -64, -11, -53, 66, -14, -23, -2, 36, 13, -27, 18, 26, 1, -16, 26, -30, -42, -56, 5, -73, 43, 39, -47, 4, 17, 27, -10, 0, 30, -20, 67, 50, -45, 29, -66, 12, 12, 3, -44, -61, 50, -52, -30, 53, 19, 6, -16, -36, 59, -38, -9, 30, 4, -12, 27, -33, -23, 24, -20, 25, 17, -29, -27, 31, 2, -20, -31, -6, -8, -9, 17, 55, 11, 13, -60, 15, -3, 31, -28, 4, -26, -7, -7, 29, 29, -10, 45, -50, 1, 7, -15, 8, -2, 0, -35, 38, 25, -15, 12, 16, -7, 27, 9, -6, -2, 27, 10, -23, -16, 48, 23, -7, -42, 35, 14, -12, 0, 15, -51, 81, 17, -30, 16, -32, 22, -8, -35, 10, -7, 7, -9, -30, 69, 15, -35, -36, -36, -10, 25, 5, -4, 30, 45, -15, -8, -42, 38, 11, 40, -11, -46, -45, -31, -18, -32, 29, -21, -12, -4, -30, 33, -6, -13, 32, -20, -6, 35, -43, 16, 10, -14, -16, -7, -17, 12, 4, 4, 6, 11, 17, -6, 23, -38, -12, 29, -8, 12, 8, 26, 23, -5, 15, 18, -1, -37, -5, -19, -32, 16, 17, 79, 17, -17, 21, -34, 0, 15, 22, -15, 16, -3, -24, -32, 24, -13, 23, 6, -11, 21, 80, -33, -54, 66, 74, -24, -43, 39, -19, 27, -42, 28, 16, -2, -18, -4, -41, 0, 9, 16, -15, 28, -32, -3, -12, 10, 35, 22, 1, 0, 29, -35, 41, -80, -39, 21, 22, 42, -42, 32, -31, 23, -11, -33, -10, -5, -19, -14, -42, 2, 43, -9, 32, -10, 8, 17, -62, -5, 48, 12, -36, 13, -51, 46, -53, -18, 16, -1, 24, 9, -7, -21, -18, 21, 34, -3, -21, -78, -6, 1, -79, 56, -24, 16, 13, 46, -19, -13, 45, 45, -16, -27, 7, 12, 3, 26, -24, -6, 31, -22, 8, -8, 21, 14, 8, 56, 6, -44, -37, 26, 45, 17, 33, 3, 20, -57, 38, -28, 0, 4, -9, -42, -61, -29, -9, 43, 11, 55, 0, -36, -14, -47, -18, 18, -35, -11, -12, 7, -1, -73, -3, 27, -13, 9, 11, -1, 21, 46, -1, 13, -37, -40, 31, -22, -18, -30, -27, 41, 15, -24, -46, -5, 22, 37, 6, -8, -19, 12, 10, -17, -33, 2, 24, -9, 15, -25, -34, -2, 8, 38, -36, 13, -9, 16, 45, -12, 9, -39, 0, -6, -27, -36, 7, -37, 11, 1, -39, 35, -2, -4, 27, -26, -1, 27, 15, -25, -41, 39, 30, -9, -9, -17, 13, 6, 11, 3, -13, -43, -3, 23, 31, 16, -4, 31, 40, -6, -32, -5, 19, 14, -27, -23, -32, 1, -34, -17, 3, -19, -3, 24, -3, 21, -22, 7, -38, -20, 15, 9, -23, 9, -39, 34, 10, 49, -24, -64, -16, -20, 52, 1, 37, -12, 56, -8, -22, -2, -14, 24, 31, 1, -37, -38, 51, 41, -60, 20, 12, -18, 1, 17, 42, 10, -24, -20, -22, -20, 4, 8, 12, 5, 9, 31, 8, 1, -71, -2, -49, 42, -51, -29, -46, 16, -7, -3, -11, -2, -4, -29, 0, -16, 13, 3, 7, -82, 49, 27, -24, 0, 5, -23, -25, 43, 3, 13, 11, -11, -40, -26, -9, 28, 43, -24, 14, 33, 7, 33, 2, -25, -7, -25, -46, -2, 2, 4, -8, 3, -25, 45, -37, 39, 11, 46, -25, 8, 20, 24, -20, 25, 8, 44, -40, 43, 13, -36, 46, -26, 41, -12, -4, -31, -18, -10, 3, -1, 9, 21, -6, -37, 24, -4, 0, 4, 68, -7, 3, 55, -11, -15, -8, -11, -45, -6, 45, 39, 24, 51, 51, -21, 2, -49, -28, -11, -10, -16, -7, -29, 5, -29, 45, 0, 7, -29, 69, -42, -32, 46, 27, -73, -7, -80, -20, -6, 4, -16, 29, 15, -21, 14, 8, -8, -9, -13, 15, -31, -20, 34, 26, -31, 16, 34, 8, 43, -44, 48, 60, 13, 33, 51, -70, 5, -7, -43, 22, 27, -5, 0 ]
Stone, J. This case was before this court in 1913, and will be found reported in 175 Mich., at page 28 (140 N. W. 960). An examination of that opinion will render a full statement of the facts here unnecessary. It is conceded that, if the certificate of Julia E. Edgerly was in force at the time of her death, the plaintiff, her son, would be entitled to recover. To expedite the trial certain facts were stipulated, among which are the following: “That assessments Nos. 123, 124, 125, and 126 for the months oí August, September, October, and November, 1910, respectively, were duly levied and due notice given thereof, according to the laws of the order. “That Julia E. Edgerly did not pay or offer to pay assessments 123, 124, 125, and 126 until December 6, 1910. “That Julia E. Edgerly was not in good health on December 6, 1910, and could not have furnished a certificate of good health on that date.” Mrs. Luella Hodges, the finance keeper of the Lansing Hive, whose, duty it was to collect assessments and forward them to headquarters, was called as a witness by the plaintiff. On her cross-examination she testified as follows: “I was a regular attendant of the lodge meetings, and finance keeper during 1909 and 1910. I had been a regular attendant, I should think, somewhere about 15 years. During 1910 Mrs. Edgerly was not in attendance at hive meetings. I have no way of knowing how long she had not been an attendant. I don’t remember her as a regular attendant of the hive meetings at any time. I sent a notice of her suspension September 1, 1910, to the great record keeper. That would be for the assessment due for the month of August. I understood that if the assessment was not paid during the month she would be suspended the 1st of September. During the last of August I had a talk with her by phone. “Q. What was the nature of it? “A. She informed me that she intended to drop her insurance; not pay the assessment. “Q. Did she give any reason for it? “A. No particular reason. I remember asking her if she was confident that that was what she wanted to do. “Plaintiff’s Counsel: All that is objected to, and I ask that it be stricken out as incompetent and immaterial. “The Court: It may stand. (To which ruling of the court plaintiff excepted.)” On December 8, 1910, Mrs. Edgerly died. On December 6, 1910, two days before her death, and while she was fatally ill, her daughter-in-law called up Mrs. Hodges, the finance keeper, to come to the house. She went there, and the name of Julia E. Edgerly was signed to papers by the daughter-in-law, with the . view of effecting her reinstatement. Mrs. Hodges did not see or have any conversation with Julia E. Edgerly in preparing the papers, and the certificate of good health was omitted; and on the 8th day of December — :the day Mrs. Edgerly died — Mrs. Hodges, learning that a certificate of good health was necessary, again went to the home of Mrs. Julia E. Edgerly, and her daughter-in-law signed a certificate of good health a few hours before the death of the insured. The articles of incorporation and by-laws of defendant were put in evidence, and from the latter it appeared that, if a member failed to pay an assessment during the month in which it became due, she would stand ipso facto suspended on the 1st day of the succeeding month from all rights and benefits of the order. During the first month of suspension she might be reinstated by merely paying the assessments due. After the first month she must not only pay the assessments, but furnish a certificate of good health to be approved by the great medical examiner. Section 141 of the laws of the order was introduced in evidence by the plaintiff. It reads as follows: “Any life benefit member being under suspension after the expiration of thirty days, and before sixty days, must, before reinstatement, furnish a certificate of good health on the form prescribed, acceptable to the great medical examiner, but if after sixty days and within six months, she must pass a full and satisfactory medical examination on the form prescribed by the great executive committee. She may be reinstated upon application being made at a regular meeting of her hive. Such application shall be accompanied by a satisfactory medical examination by the hive physician, to be approved by the great medical examiner. She shall also pay all tax, dues, fines and assessments for which she would have been liable had she remained a member in good standing. The hive finance keeper shall immediately notify the great record keeper of such reinstatement, and forward the money due the order; provided, however, that no suspended member shall be reinstated by any hive unless such application shall be made, examination had and approved, and money paid, within the six months next from and after the date of the failure of such member to pay her liabilities as required as aforesaid.” Julia E. Edgerly never became reinstated on the books of the defendant order. Upon the trial it appeared that the defendant order was, during the summer and fall of 1910, engaged in a process of rerating its members; that previously there had been in the order two classes, each class paying its premium in accordance with a different theory. It appeared that the order considered it necessary to readjust and raise its rates. At the great hive meeting held at Kalamazoo in June, 1910, new by-laws had been adopted containing the new re-rating provision. These by-laws went into operation on August 10, 1910. Mrs. Edgerly had been in what was known as class No. 1. By specific language used in section 98 of such bylaws, relating to the rerating provisions, were the following : “Members who hold certificates in what is known as class 1 shall, on or before January 1, 1911, pay the monthly rate of assessment as provided in table of rates in schedule 4.” While this condition of affairs existed, the great commander, under date of July 6, 1910, issued to the great record keeper what she called a “special dispensation.” It reads as follows: “Ladies of the Modern Maccabees. “Special Dispensation. “Office of Great Commander. “St. Louis, Mich., July 6th, 1910. “To Emma E. Bower, “Great Record Keeper, “Located at Port Huron, “State of Michigan. “Ladies: “Under and by virtue of the authority given me in the laws of the L. O. T. M. M., and believing that the best interests of the order will be thereby subserved, I hereby issue to your hive the following dispensations: Allow reinstatements without certificates of good health or re-examination for 120 days from June 1, 1910. Therefore, be governed in accordance herewith in relation thereto. “Given under my hand and seal and the seal of the L. O. T. M. M. this 6th day of July, 1910. [Signed] “Frances E. Burns. “Great Commander. “Emma E. Bower, “Record Keeper.” The dispensation above referred to was filed in the office of the great record keeper. The great record keeper, after the receipt of the dispensation, sent a notice to the record keepers of the subordinate hives, which reads as follows: “To the Membership: “The great commander has been requested by the great executive committee to issue a dispensation to allow suspended members over thirty days to reinstate without furnishing a certificate of health, to be in force from June 1st to January 1st, 1911. A member suspended June 1st has under such dispensation until October 1st to reinstate without certificate of health, or re-examination. A member suspended July 1st has until November 1st to reinstate. A member suspended August 1st has until December 1st to reinstate. A member suspended September 1st has until January 1st to reinstate. * * * [Signed] “EMMA E. BOWER, “Great Record Keeper.” On November 1, 1910, the great commander issued another dispensation in terms annulling the dispensation of July 6th. This reads as follows: “Ladies of the Modern Maccabees. “Special Dispensation. “Office of Great Commander. “St. Louis, Mich., November 1, 1910. “To the Officers and Members of Subordinate Hives. “Ladies: “Under and by virtue of the authority given me in the laws of the L. O. T. M. M., and believing that the best interests of the order will be thereby sub-served, I hereby issue to your hives the following dispensation: Members under suspension for over 30 days may be reinstated on a certificate of good health, provided they make out an application for transfer to class II and pay the assessment for the current month on the new rate, and in such case, the members shall be exempted from payment of all arrearages for life benefit assessments or per capita tax. The certificate of health, application for transfer, and assessment for current month shall at once be forwarded to the great record keeper. If the certificate of health is rejected by the great medical examiner, the amount remitted shall be refunded. The payment of hive dues shall be required, also any amounts that the member may have been owing the subordinate hive, or its officers,, on loans. Those members reinstating and taking a rating as of 50 years, must pay the rating as of class II for September and the following months. “The above dispensation to be in effect from November 1, 1910, to January 1, 1911. You will, therefore, be governed in accordance therewith in relation thereto. “Given under my hand and the seal of the L. O. T. M. M. this 1st day of November, 1910. “Frances E. Burns, “Great Commander. “Emma E. Bower, “Great Record Keeper.” Notice of this dispensation was sent to the record keepers of the hives, but it appears that notice was not received by the record keeper of the Lansing hive. Under defendant’s laws the local finance keeper had no power of reinstatement of suspended members, but could only accept their applications and forward the same to the great record keeper. There is no evidence that the deceased knew of, or in any manner relied upon, the dispensation of July 6, 1910, in becoming suspended September 1, 1910, or in remaining under suspension, nor was there any competent evidence offered to that effect. It does not appear that she had any correspondence with any of the officers of the defendant, or talked with them in regard to her membership after September 1st. She had no talk with the finance keeper of her hive about becoming reinstated after the last days of August. There was no evidence in the case that deceased was in any manner misled by the dispensation of July 6th in not paying her assessments within the time required by the laws of the order. Mrs. Hodges, the local finance keeper, in referring to what occurred on December 6, 1910, testified as follows on her direct examination: “Q. What was done at that visit, Mrs. Hodges— the visit of December 6, 1910? “A. The money was paid for the reinstatement of Mrs. Edgerly; amount $13.44. It covered assessment No. 123 in class 1, assessments 48, 49, 50, and 51 in class 2. If I had numbered all those in class 1 they would have been numbered from 123 on. No. 123 was for August, 48 September, 49 October, 50 November, and 51 December. I changed from No. 123 and on to No. 48 and on, because of, the difference in the class that Mrs. Edgerly adopted. She passed from class 1 to class 2. Class 2 had only reached that number at that time.” At that time an application for a transfer was made in her name. It reads as follows: “Ladies of the Modern Maccabees. Application for transfer from class 1 to class 2. The life benefit certificate in class 1 must be surrendered and returned to the great record keeper with this application duly signed. “Lansing, Michigan, Dec. 6, 1910. “I, Julia Edgerly, am a life benefit member of Central Hive No. 162, located at Lansing, State of Michigan, and was born on the 2nd day of October, 1856. Now, in consideration of a certificate in schedule 3, issued as directed by me, on the reverse side of this application, in the Ladies of the Modern Maccabees for $1,000, payable to Harry Edgerly, son, I do hereby surrender my life benefit certificate of membership No. 19906 held by me for $1,000 in class 1, and do release the said order from all liability thereunder. I have paid the last assessment, No. 51, due this month, from class 2, and am a life benefit member in good standing. “In further consideration of the issuance of the above certificate, I agree to pay the rate in said schedule, as provided in the privilege of transfer, and in all things comply with the laws of the order now in force, or hereafter adopted, governing the said schedule and rates. The warranties and statements made in my original application are herewith reaffirmed and made a part hereof. “Julia E. Edgerly.” Then oh the back: “Eate at Age 50 Option. “I am now over 52 years of age, and direct that a certificate be issued to me in schedule '3 for $1,000, and I agree to pay the monthly rate in said schedule as of age 50 for the said amount after September 1st. “Julia E. Edgerly. “Luella Hodges, F. K. 162.” This application for transfer was signed by the daughter-in-law of Julia E. Edgerly. Mrs. Hodges further testified: “This transfer was then taken by me and receipts were passed. The papers were forwarded to the great record keeper as required. That was done by myself. As I remember it, the transfer took place in the forenoon of the 6th. The papers were mailed directly after leaving there. Those papers were mailed to the great record keeper, Miss Bower. * * * The signature on the application for transfer was made by Mrs. Harry Edgerly. I saw it done, and I did not make any objections to the signature.” It appears that this local finance keeper had attempted to reinstate another person in the same manner as Mrs. Edgerly. That attempted reinstatement had gone to the great hive before Mrs. Edgerly’s went in — about'two weeks before. Mrs. Hodges got notice in which she was informed a certificate of good health would be required to accompany the reinstatement. This local officer then went to the house of Mrs. Julia E. Edgerly again, and there obtained, on the 8th day of December, a reinstatement certificate of good health, signed by the daughter-in-law in the name of Julia E. Edgerly. This officer did not see Mrs. Edgerly on that occasion at all, and upon the trial it was admitted by counsel for plaintiff that Julia E. Edgerly died shortly after dinner the same day, and it appeared that she died before the certificate of good health had left Lansing. The $13.44 paid for reinstatement on December 6, 1910, was paid back to plaintiff in part, and the remainder was tendered, but not accepted. After Mrs. Edgerly’s death, plaintiff presented his claim to the executive committee of defendant, and, after an investigation, the claim was disallowed on May 3, 1911. This decision is set forth in full in the record. No appeal was taken from this decision. The bylaws provide that the decision of the executive committee shall be final, unless an appeal is taken within 60 days to the great hive. At the time of the organization of the order the great hive met once, a year. Thereafter this by-law was changed to once in 2 years. In 1910 the law was again changed so that the great hive would not convene for 4 years. It appeared that their then next meeting would be in June, 1914. It was the claim of the plaintiff that this bylaw was unreasonable, unfair, and in effect took from the plaintiff the right to appeal at all. Action was immediately started in the circuit court. It is the claim of the plaintiff that Julia E. Edgerly was a member of defendant order in good standing at the time of her death, having been automatically reinstated by the payment of her dues on December 6th, and he bases his contention in this respect on the following propositions: (1) That the July 6th dispensation could not be rescinded because of the vested rights that arose from Mrs. Edgerly’s reliance upon it. (2) That it certainly could not be rescinded without notice to Mrs. Edgerly. (3) That there was no evidence of any notice of any kind to the Lansing hive, or to Mrs. Edgerly, of the dispensation of November 1st. (4) That even though there were evidence of notice to the Lansing hive of this dispensation, such notice would not be notice to Mrs. Edgerly, for the reason that, while she still occupied legal relations as toward the order, she was suspended from the local hive, and had no right under the by-laws to be present at the hive meetings; hence notice to the hive could not be notice to her. (5) The great hive, by its qualified officer, having induced Mrs. Edgerly by its dispensation to believe that the requirement of payment and a health certificate had been waived for 120 days, will be estopped from setting up that condition as a cause of forfeiture. (6) That the dispensation of July 6th, having been issued and circulated, and it being definitely stated therein that it would be in operation until January 1st, could not be rescinded by the great hive on the instant to take effect on the instant. (7) The rerating section, without considering the dispensation at all, authorized the transfer from class 1 to class 2 at any time prior to January 1, 1911, without a certificate of good health, or without re-examination, upon payment of dues as to all members in good standing at the time of the meeting of the great hive in Kalamazoo, June 10, 1910. At the conclusion of the evidence, defendant’s counsel moved the court to direct a verdict for the defendant for the following reasons: (1) Plaintiff has not exhausted his remedy through the tribunals of defendant. (2) That Julia E. Edgerly became suspended September 1, 1910, and had not become reinstated at the time of her death. (3) The dispensation of July 6th was but an indulgence or gratuity, available only to those who took advantage of it while in force. It created no vested right in a member under suspension, and, when rescinded, no right was taken away from insured, as none had been conferred by it. (4) Notice of a revocation of the special indulgence or privilege was not necessary to be given to suspended members. (5) A suspended member has no right to the benefits of the order until an actual reinstatement has taken place. The court directed a verdict for the defendant on the first proposition, that the plaintiff had not exhausted his remedy through the tribunals of defendant society, and a judgment was entered for the defendant. The plaintiff has brought the case here upon writ of error, and, aside from a few questions raised upon the introduction of evidence, only one of which we shall notice, the assignments of error relate to the charge of the court, and allege error in directing a verdict-for the defendant, for the reason that the evidence did not support such directed verdict. If it shall turn out that the result reached by the trial court was the correct one, and that upon the trial of the case, for any reason, a verdict should have been directed for the defendant, it is conceded that the judgment below should be affirmed. Passing the question upon which the circuit judge directed the verdict, and also passing the question whether the great commander had power or authority under the laws of the order to issue the dispensation of July 6, 1910, we think there is a controlling reason why the plaintiff cannot prevail here. There is no evidence in the case that the dispensation of July 6th had any relation to the dropping out of the order of Julia E. Edgerly on September 1, 1910. Whatever her reason may have been, she dropped out, so far as the record shows, voluntarily, deliberately, and purposely. We are of opinion, however, that the testimony of the finance keeper as to the statement of Mrs. Edgerly of her intention to withdraw was inadmissible and incompetent under the statute (Act No. 30, Pub. Acts 1903). See authorities cited in Rousseau v. Brotherhood of Yeomen, 177 Mich. 568 (143 N. W. 626). But, with this testimony eliminated, the record still shows that Mrs. Edgerly dropped out voluntarily. The error in permitting the testimony to stand was harmless. Although she lived in the same city with the finance keeper, no attempt was made in her behalf to become reinstated until on her deathbed, and that attempt was by the daughter-in-law. The dispensation merely permitted the great record keeper to accept applications for reinstatement of members suspended more than 30 days without furnishing a certificate of good health. It was but an indulgence or gratuity to members who took advantage of it while in force. Those who took advantage of it while it was in force would be protected, because an actual reinstatement would have taken place on the books of the order, and the transaction would have become a closed one. Those suspended members who did not take advantage of it while in force could not claim any right had been taken away from them, because none was covered by it unless an application for reinstatement was made. On November 1, 1910, the great commander rescinded the prior dispensation, and required all members under suspension more than 30 days to furnish a certificate of good health in order to become reinstated. There was no dealing in either dispensation with any member directly. Counsel for plaintiff seem to contend that personal notice should have been given to Julia E. Edgerly of the November 1st dispensation, rescinding the prior one. We are unable to find any provision of the laws of the order or authority sustaining the proposition that when a member voluntarily drops out of the order, and thereby her certificate becomes forfeited by the express terms of her contract with the order, she has still a vested right to have notice of subsequent action of the order. When she actually dropped out, the order had the right to treat her as suspended. There is no evidence to justify the claim of plaintiff that Julia E. Edgerly was misled or deceived by the action of the order, or that she placed any reliance upon the July dispensation, or knew of it. She knew that, if she did not pay her assessments, shé would stand suspended, and with that knowledge she voluntarily and deliberately became suspended and dropped out of the order. A member who has become suspended can only be reinstated in strict conformity with the laws, and has no rights until an actual reinstatement has taken place. 29 Cyc. p. 38, and cases cited. This doctrine seems to be sustained by Hay v. Benefit Ass’n, 143 N. C. 256 (55 S. E. 623). It is worthy of passing note that the dispensation did not attempt to do away with application to the local hive. We quote from section 141: “She may be reinstated upon application being made at a regular meeting of her hive.” We have looked in vain in this record for any such application, or any action of the local hive. The local finance keeper undertook to restore Mrs. Edgerly, without any action of the hive or any consultation with that body, so far as this record shows. We are unable to agree with plaintiff’s contention that section 93 of the by-laws of 1910, which is the reinstating section, confers some rights upon suspended members to become reinstated. That section deals with “members,” not suspended members. It will be noted that the paper signed “Julia E. Edgerly,” on December 6, 1910, does not purport to be an application for reinstatement, but is, on the contrary, an application for transfer from one class to another. It seems to have been assumed that the reinstatement had already taken place, and that the applicant was a member in good standing. We do not understand that such was the fact. We agree with the contention of defendant that, when a member suspends herself, which, by the provisions of the contract, suspends her relations with the order, she only has such right of reinstatement as exists at the time she applies for reinstatement. What may have happened during the period of her suspension she cannot complain about; and her beneficiary is in no better position than she would be. At the time the application was made for Julia E. Edgerly to be reinstated, if any was made at all, a certificate showing her good health was necessary. This was not, and could not be, furnished. The trouble with the plaintiff’s case is that at the time of the death of his mother her beneficiary certificate had been suspended, and there had been no reinstatement thereof. That was the status at the time of her death. For the reasons already stated by us, the judgment of the circuit court is affirmed. Brooke, C. J., and McAlvay, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred.
[ -7, -16, -14, 7, -53, 5, 41, 30, 10, -5, 1, 10, 21, -4, -6, -12, -27, 11, -16, 17, -9, -24, 9, 22, -56, 15, -12, 29, 13, 8, 23, -2, -4, -33, 21, 34, 66, 0, 1, 27, -31, 19, -13, -42, -73, -36, 18, -14, 8, -19, -3, -18, -21, 4, 11, 15, 39, 10, 12, -2, -22, 0, 48, -69, 34, 53, 2, -18, -9, -37, 0, -36, -4, -19, -41, -47, 1, 21, -31, 3, -14, -51, -32, -31, 12, 5, -31, 5, 33, 4, -25, 32, -9, 45, -28, 28, -1, -41, 36, 34, 10, -74, -9, 29, 16, -1, 9, -9, -31, -21, 11, -17, 52, 29, 7, 7, 13, -2, -45, -13, 15, -3, -6, -21, -2, -8, 8, -3, 13, 34, -6, -12, 2, 0, -50, -17, -8, -60, 6, -13, 29, 23, -10, -6, 45, -35, 19, 8, -19, -20, -4, 6, 36, -4, 2, 0, 2, -13, 0, -23, 43, -10, 18, -36, -14, -28, 37, 11, 18, -24, 48, 4, -7, -40, 3, 12, 25, 2, 7, 17, -54, 15, -6, -7, 26, -40, 13, -32, 30, 10, -54, -9, -17, 63, -3, 41, 3, 32, 13, -39, 21, 16, 12, 9, 16, -11, 37, 26, -30, 13, -6, -19, 15, -27, -80, 11, -36, 15, -36, 18, -3, 15, 33, 3, -21, -15, -6, -13, 19, 16, 27, 2, 59, 45, 8, 27, 18, 31, 24, -27, -15, 0, 19, -20, -33, 26, -66, -8, -39, 6, 30, 43, 46, 36, -47, -37, 38, -13, -14, -37, 23, 4, -9, 53, 9, -28, -9, 24, 14, 2, 1, 33, 31, 3, -16, -59, 9, -24, 62, -8, -10, -22, -50, -13, -47, -9, 72, -26, 2, 8, 34, -18, -12, -17, 35, -38, -36, 14, -28, 0, -12, 48, 40, 48, 9, 55, -9, 0, 16, -8, 16, -2, -9, -20, 46, 8, -24, -37, -8, 17, 14, -12, -64, 56, 28, 20, -14, -61, -19, -46, -15, 55, 31, 13, 1, -18, 21, -45, 12, 0, 31, 13, -17, 1, -14, 14, -10, 13, -17, 13, -61, 34, 10, 25, 33, 24, 66, -31, -1, 39, -7, -53, 58, 44, -28, -10, -19, -38, 21, 24, 29, -8, -2, -35, 1, 0, -15, 16, 34, 66, -4, 12, 12, 1, -49, -28, -57, 8, -8, 33, -14, -5, 17, 42, -74, 13, -3, 28, -24, -12, -22, 59, 4, 4, 9, 31, -18, -5, -25, 45, 13, 25, 22, 1, 55, -8, 26, 12, -23, -21, 3, 14, 22, -1, -9, 24, -12, 44, -29, -24, -21, 1, 18, -1, -6, -69, -8, 38, -38, -9, -3, 33, 10, -32, -18, 10, -10, 8, 38, 0, -26, -31, 32, 16, -24, -48, 29, 2, -17, -49, -22, -41, -6, 66, 11, 37, -22, -10, 24, 49, 2, 5, -51, -8, 11, -41, 1, -7, 12, 21, 19, -9, 19, 18, -49, 58, -40, -59, -19, 31, 40, -64, -15, -1, -30, 15, -8, -62, 10, 1, -25, 4, 21, -34, 29, -44, 4, -73, 27, -20, -47, -32, -5, 28, 33, -13, 75, -25, 25, 22, 7, 61, -12, 33, 29, -1, 4, -15, 23, -4, -10, 36, 12, 6, 29, -38, 2, 36, -10, -24, -14, 42, 45, 55, -27, 10, 15, -22, -5, 5, -24, -40, -25, -35, -26, -31, 11, -3, -17, 27, 2, -2, 11, -30, 29, -12, -44, 11, 0, -23, 14, -7, -2, 28, -26, 12, 25, 8, -17, -28, 41, 2, -22, -57, -13, 9, -20, 45, 0, 29, 16, -8, -19, 23, -16, 9, 23, -24, 1, -16, -1, -15, -30, -29, -33, -11, 12, 38, 83, -44, 43, 13, 34, -47, -56, 49, 6, -41, -1, -16, -21, 19, 12, -8, 34, 15, -15, 11, -18, -6, 26, 3, 35, 50, -36, -29, 52, -5, 0, -37, 22, -19, 9, 23, -2, 17, -14, -6, -8, 8, -28, 18, 3, 0, -10, 9, 19, -10, -37, -13, -14, 49, -22, 20, -28, 11, -29, -4, -3, 7, 33, -19, 9, -22, -11, -69, -16, 14, 22, -26, -33, 38, 8, 12, 20, -22, -59, 36, 29, -20, -34, 4, 6, 15, -34, -20, 16, -7, -18, -38, -26, 13, 1, 45, -56, -4, -9, -43, -21, -43, -9, -8, -7, -29, -24, 28, 8, 19, -5, -3, -26, -49, -2, -19, 16, 64, 37, -34, -10, -87, 0, 7, -53, 3, -12, -25, -4, 24, 0, 15, 27, 0, -2, 9, -20, 6, 36, -47, 13, 14, 32, 23, 28, 0, -24, -11, 11, 3, -9, -39, -4, 5, -4, -25, -16, 24, -29, 25, 10, -5, 19, 53, -7, -5, 27, 35, -28, 2, -20, 3, 49, 4, -39, 21, -21, -61, 29, 31, 8, 48, -14, -45, 30, -22, -14, 23, -29, -48, -21, 18, 42, 12, 23, 22, 2, 43, -44, -26, -22, -8, 1, -30, 1, -40, -41, -43, 28, 2, -9, 30, -45, 56, 12, -2, 3, -7, -16, 9, 17, 12, -24, -19, -33, -44, 25, 9, 8, 24, -4, 10, -22, 0, -4, 10, -14, -6, 19, 25, -17, 28, -4, -6, 4, 33, -21, -26, -20, -60, 29, 15, -24, -38, -37, -57, 1, 57, -4, 27, 51, -2, -18, 19, -48, -1, -40, 40, 33, -30, 9, 5, -35, 24, 2, 26, 26, 70, 39, -16, -17, 1, 9, 0, 1, 11, -36, 12, -41, 7, -27, 18, 1, 19, 24, -12, -40, 7, -45, -4, -21, -8, 29, -39, -45, -10, 31, 30, -25, -4, -56, 17, -26, 14, -22, -52, -9, 61, 58, -10, -58, 51, -8, -25, 0, -4, 34, -3, -3, -19, -17, -10, 7, 9, -20, 17, 3, -8, 12, 10, 1, 16, 40, 14, 30, 67, -54, 19, -33, -35, 35, 29, -1, -23, 33, -5, 41, 3, 12, 21, 34, 8, 4, 3, 4, -29, 24, 13, 7, 22, 22, -45, -4, -15, 12, -10, -39, -11, -7, -26, -14, -12, 19, 4, -67, 29, 29, 19, 26, -37, 20, -32, 29, -64, 50, 18, 0, -58, 23, 0, -38, 22, -28, -17, -10, -23, 5, 20, -9, -15, -6, -44, 19, 50, 7, 17 ]
Bird, J. Complainant recovered a judgment in justice’s court against one George Carnaski. On appeal he was again successful, being awarded a judgment for $41.50 damages, and costs taxed at $48.20. Judgment was rendered against both Carnaski and his surety, John F. Mclnerney, one of the defendants herein. On May 9, 1910, an execution issued against them, which was returned unsatisfied. On November 21, 1910, an alias execution was issued and levied upon certain lots, numbered 122, 123, 124, and 125, in Callaghan’s subdivision of part of lot 2 of the shipyard tract in the city of Detroit. The record title of these lots stood in John F. Mclnerney. They were later sold on execution and were purchased by the complainant, the sheriff’s deed therefor being recorded on April 25, 1912. On June 29, 1911, defendant Mclnerney placed of record a quitclaim deed of lots 124 and 125 to his wife, Florence Mclnerney, and on March 25, 1913, a warranty deed conveying lots 122 and 123 to defendants Pinson was duly recorded. In April, 1913, defendants Pinson started to erect a dwelling thereon. While the work was progressing, this suit was commenced by complainant to enjoin the erection of the same, and for the .further purpose of quieting the title to the lots in complainant. It was the claim of defendants that the conveyances to the Pinsons and Mclnerney’s wife were made in June, 1906, and that, while not placed of record until after notice of levy had been filed, the complainant had notice brought home to him before the said levy was made that McInerney was not the owner of them. The chancellor was impressed with this view of the proofs, and accordingly denied the relief prayed for and dismissed the bill. On behalf of the defendants Pinson, the point is made that this bill to quiet title could not be maintained because they were in actual possession of and claiming title to the premises. This point appears to be well taken. They had erected a dwelling thereon, and it was nearly completed when these proceedings were instituted. Lots 124 and 125 quitclaimed by defendant to his wife upon an expressed consideration of one dollar were vacant and unoccupied property. As to these lots it is made certain by the records that notice of complainant’s execution and levy preceded the recording of the deed. This being so, the rights acquired by the purchaser under the execution levy and sale were superior to the rights of the grantees mentioned in the unrecorded deed, even if the deed was actually executed and delivered in 1906 as claimed by them, if it can be said that the complainant had no actual notice of such transfer. Section 9224, 3 Comp. Laws (4 How. Stat. [2d Ed.] § 11386). This section provides: “That no levy by execution on real estate, made after this act shall take effect, shall be valid against bona fide conveyances made subsequent to such levy, until a notice thereof, containing the names of the parties to the execution, a description of the premises levied upon, and the date of such levy, shall be filed by the officer making the same, in the office of the register of deeds of the county where the premises are situated, and such levy shall be a lien thereon from tfie time when such notice shall be so deposited; and the lien thus obtained, shall, from the filing of such notice, be valid against all prior grantees and [mortgagees] mortgages of whose claims the party interested shall not have actual nor constructive notice.” First National Bank v. Phillpotts, 155 Mich. 331 (119 N. W. 1); Monroe v. Carter, 167 Mich. 325 (132 N. W. 1023); Savidge v. Seager, 175 Mich. 47 (140 N. W. 951); Johnson v. Cook, 179 Mich. 117 (146 N. W. 343). The question then gets round to this, whether complainant had notice that Mclnerney had transferred the title to his wife prior to the filing of the notice of levy in the office of the register of deeds. The testimony which is relied upon to show that complainant had notice is a certain conversation which defendant Mclnerney testifies that he had with the complainant with reference to the title to the lots. In that conversation he informed the complainant, in substance, that he was no longer the owner of the lots; that he had transferred them to others. The complainant, after showing that his notice of levy was first recorded, starts out with the presumption that his rights are superior to those of the defendants (Godfroy v. Disbrow, Walk. Ch. 260), and we are unable to find from the record that this presumption has been overcome. The conversation detailed by Mclnerney is of no persuasive force because it appears from his own testimony that it occurred after the notice of levy was filed. We are of the opinion that under the record that part of the decree dismissing the bill as to defendants Pinson should be affirmed. That part of the decree dismissing the bill as to defendants Mclnerney will be reversed, and the title to lots 124 and 125 will be quieted in complainant as against the claims of defendants Mclnerney. The complainant will recover costs of both courts against defendants Mclnerney. Defendants Pinson will recover costs of both courts against complainant. Brooke, C. J., and McAlvay, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred.
[ -22, 67, -4, -7, -6, -43, 8, 12, 15, -1, 20, -27, 5, 21, -11, -1, -13, 9, 18, 2, 4, -48, -40, -26, -21, 41, 39, -27, -26, -24, 12, -40, -31, 6, 16, 7, 11, -14, 37, -3, -2, 0, -44, -38, 17, 4, 15, -32, 36, -14, -9, -28, 28, -26, 13, -17, -34, 34, -8, 5, -5, -4, -13, 7, -15, 11, 26, -7, 11, -29, 16, -4, 3, -22, -16, 21, 2, 4, -54, -18, -21, -7, 32, 38, -11, -19, -12, -52, 8, -9, -41, 15, 11, 76, 10, -1, -5, 16, -18, 33, -1, 32, -12, -6, -5, -17, -33, -26, 11, 8, 4, 28, 56, 15, 20, -32, 22, -5, 19, 0, -6, -10, -11, -37, -27, 33, -27, 12, -8, 48, 4, -29, -26, -9, -12, 3, -21, 50, -4, 28, 68, 26, -18, -40, -27, -8, -6, 2, -22, -22, -41, 15, 28, 21, 6, 7, -7, 12, 14, -29, 0, -8, 33, -32, -34, 33, -55, 32, -23, 11, 35, -11, 13, -27, 51, -2, -25, 5, -12, -23, 16, 14, 35, -60, 2, -17, 76, -5, -35, -42, 41, -45, -30, -23, 7, 35, 10, -32, 7, 25, -17, -7, 11, -41, -17, -24, 76, 6, -4, -5, -63, -24, -21, -9, -21, 28, 3, 19, -9, -23, -5, 21, -42, 2, -31, -18, 48, 4, 51, 57, -44, -13, 46, -4, -76, 4, 14, 26, -29, 28, -24, 39, -47, -41, -21, 39, -28, 22, 12, 9, -11, 16, -44, -5, 0, -2, 8, -7, 22, 9, 54, 39, -15, -45, 6, 2, 3, -32, -43, 31, -21, -13, 13, 9, -38, -61, -4, -21, -22, 3, 18, -48, 18, -16, 14, 21, 25, 20, -53, -14, -17, 34, -10, -6, 48, -36, 24, -72, 19, -15, -44, -15, -4, -26, 22, -35, -11, -17, 13, 27, 25, -14, 28, -14, 23, 0, -50, -22, 40, -21, 15, -3, -41, 2, 44, 30, 22, -13, -17, -29, 43, 26, -10, 15, -25, 12, 36, 7, -7, -24, 5, 21, 4, -11, 6, -11, -25, -37, 31, 37, 37, 2, -35, 3, -22, 6, 42, -12, 0, 24, 69, 20, 10, -12, -10, -9, -47, -11, -3, 31, 60, 9, -34, 56, 19, 29, -32, -30, -27, 55, 5, -8, 13, -2, 26, 12, -9, -32, 0, -14, -42, 10, 0, 20, 45, -53, -17, 18, -51, -4, -35, 8, -18, 0, -83, 5, 22, -12, -14, -1, -1, -17, 24, 28, 0, -31, 10, -5, 14, -32, 38, 0, 52, -39, 21, -20, 59, 26, -19, 31, -8, 42, 16, 8, -7, 10, -32, 0, -11, -14, 8, 6, -8, -4, 47, -26, -12, -12, 11, 33, 47, 74, -17, -8, -24, 1, 9, -61, 50, -23, 11, -42, 2, -8, -24, -8, -10, -25, 15, 31, 3, 1, 11, -23, -3, 2, 45, -18, -17, 16, -14, 15, 0, -14, -54, -22, -81, -24, -38, -11, 12, -8, 24, -3, 11, -30, -10, -26, 11, -17, -5, 15, 15, 34, 23, -29, -6, -63, 11, 65, -57, -18, -1, 7, 19, 44, 41, 25, 6, 32, -8, 10, -18, -2, -1, 35, 14, -10, 4, 2, -11, -8, -60, 21, -27, -15, -15, 22, 25, -10, -18, 11, 52, 28, -38, 16, -18, 24, 18, 18, 3, -27, -7, 3, -34, -2, 3, -13, 25, 35, -1, -25, 25, -25, 41, -6, 0, -35, -21, -30, -41, 7, 28, -5, -3, -25, -40, -31, -14, 30, -23, -8, 53, -28, 21, 1, 32, 15, -16, 58, -29, -40, -14, -11, -12, -3, -19, 24, 7, -28, 15, -54, -18, -30, -34, 9, 9, 24, 57, 2, 10, 45, -4, 21, -18, 36, 3, -39, 10, 17, 44, -38, -11, -30, 7, 18, 8, -10, -43, 49, 8, -25, -26, 5, -4, -21, -15, 16, -30, 20, -31, 0, -30, -9, 9, -31, -29, -14, -29, 5, -19, 22, 30, 41, 8, -27, -23, -4, 37, -34, 13, -19, 14, 7, -14, -21, 14, -11, 42, 30, 11, -31, 11, 16, -47, -15, -31, 21, 51, 8, 52, 6, 0, -11, 38, -19, 32, -15, -15, 16, -39, -10, 46, 5, -10, 56, -9, -5, -9, 6, 12, -18, -36, 27, -34, 10, 43, -16, -14, -67, 24, -28, 15, 26, 8, 62, 52, 16, -38, 9, 5, -40, -21, -55, -14, -4, -37, -10, -10, 17, 9, 51, 15, 10, -33, 32, -14, -33, -31, -46, -34, -18, -4, -41, -16, -33, 32, -3, 12, -16, 19, -2, 21, 30, 11, 0, -15, 6, 7, -21, -11, -6, 28, 0, -36, -5, -5, -23, 35, -48, -29, 0, -18, -36, 13, 17, 20, 35, 20, -27, -30, -9, -8, 25, -11, -27, -18, 30, -11, -7, -4, 16, 10, -1, -27, -27, -4, -15, -37, -20, -40, 29, -29, -18, 21, -14, -63, 27, 28, 12, -9, -42, -22, -75, -37, 18, -17, 22, 1, 28, -28, 63, -14, -6, -11, 0, 40, 30, -6, 45, 18, -19, -20, 60, 18, -10, 7, 35, -17, -26, -38, -22, -8, 53, -17, -2, -26, 67, 25, 8, 0, 2, 3, 28, -69, -43, 18, -3, 8, -19, 88, -16, -20, -36, 19, 41, 0, -8, 36, -38, 39, 37, -52, 9, 16, 0, -5, 27, 18, -5, 17, 5, -38, 35, -36, 41, 32, -36, -1, 11, 21, 18, -19, -22, 21, 13, 1, 3, 36, -16, 2, -30, 2, 5, -14, -13, 14, 22, -18, -3, 1, -9, -31, -13, -49, 8, -13, 0, 32, 59, 11, 8, -83, 31, -10, -9, -29, -4, -9, 55, -1, 13, 0, 10, -20, -25, 35, -48, -14, -29, 23, 9, 25, 38, -54, 29, 45, 33, 26, 70, -8, 18, 44, 42, -19, -24, -55, -68, 15, -19, 17, 23, 0, -17, 42, 25, 5, 33, -1, -20, 18, -12, -12, -18, -8, 2, 38, 38, 2, -43, 59, -9, -13, 30, 12, -13, 70, -46, -38, 1, 19, -23, 10, 19, 3, 5, -13, -1, -34, -3, 11, -13, 52, 27, 42, -6, 41, 0, 25, -25, -61, 24, 46, 39, -1, 42, 52, 12, -22, 34, 24, -7, 5, 26 ]
Kuhn, J. (after stating the facts). Section 7, pt. 1, Act No. 10, Pub. Acts 1912 (Extra Session), (2 How. Stat. [2d Ed.] § 3945), provides in part as follows: “The term ‘employee’ as used in this act shall be construed to mean: (1) Every person in the service of the State, or of any county, city, township, incorporated village or school district therein, under any appointment, or contract of hire, express or implied, oral or written, except any official of the State, or of any county, city, township, incorporated village or school district therein.” The decision of the Industrial Accident Board can be affirmed only if it is found that a policeman of the city of Pontiac, under the facts stipulated, is an employee and not a public officer. Policemen generally are charged with the especial duty of protecting the lives of citizens within certain territorial limits, and of preserving the public peace. The preservation of the public peace being a matter of public concern, it has therefore been said that policemen may be considered as public officers. As a rule, they are appointed under authority given by the State, and therefore have generally not been regarded as servants or agents or as otherwise bearing a contractual relation to the municipality. Schmitt v. Dooling, 145 Ky. 240 (140 S. W. 197, 36 L. R. A. [N. S.] 881 and note, Am. & Eng. Ann. Cas. 1913B, 1078). Chief Justice Marshall distinguished an office from a simple employment in the case of United States v. Maurice, 2 Brock. (U. S.) 96, 103 Fed. Cas. No. 15,747, as follows: “Although an office is an ‘employment,’ it does not follow that every employment is an office. A man may be certainly employed under a contract, express or implied, to do an act, or perform a service, without becoming an officer. But if the duty be a continuing one, which is defined by rules prescribed by the government, and not by contract, which an individual is appointed by government to perform, who enters on the duties appertaining to his station, without any contract defining them, if those duties continue, though the person be changed, it seems very difficult to distinguish such a charge or employment from an office, or the person who performs the duties from an officer.” In the case of Throop v. Langdon, 40 Mich. 673, Mr. Justice Cooley expresses the distinction as follows: “The officer is distinguished from the employee in the greater importance, dignity, and independence of his position; in being required to take an official oath, and perhaps to give an official bond; in the liability to be called to account as a public offender for misfeasance or nonfeasance in office, and usually, though not necessarily, in the tenure of his position.” The court of criminal appeals of Texas has decided that “a policeman of a city is a public officer holding his office as a trust from the State, and not as a matter of contract between himself and the city; the word applying equally to every member of the police force,” and that “a policeman is a public officer of the State expressly charged by the statutes with enforcing a large body of the criminal law.” Ex parte Preston (Tex. Cr. App.), 161 S. W. 115. See, also, Woodhull v. Mayor, 150 N. Y. 450 (44 N. E. 1038); 2 McQuillan on Municipal Corporations, p. 940; 5 Id. p. 5049; 28 Cyc. p. 497. Counsel for applicant does not, however, take exception to these authorities as to the status of a policeman generally, but says that they do not bear upon the situation here presented, because the city of Pontiac in its charter has determined it and has classified its policemen as employees. Assuming that the position of counsel for the applicant is tenable, that the city has the authority under the home rule provision of the Constitution to determine that a policeman, who generally would be regarded as an officer, should for the purposes of the workmen's compensation law be regarded as an employee (which we do not decide), we are not satisfied that such a conclusion is the proper one to arrive at upon a careful study of the various charter provisions with reference to the police force of the city of Pontiac. A study of these various provisions is convincing that it was the purpose therein manifested to leave the policemen in the category of appointive officers, and not to make them merely employees. This, we think, is apparent from the wording of sections 5 and 6 of chapter X of the charter, which provide as follows: “Sec. 5. The police department shall consist of the chief of police and as many subordinate officers, policemen, and employees as the commission shall by ordinance determine. “Sec. 6. The commission shall by ordinance make and establish rules for the regulation and government of the police department, prescribe and define the powers and duties of the officers and employees of such department, and shall prescribe and enforce such police regulations as will most effectually preserve the peace and good order of the city, preserve the inhabitants from personal violence, and protect public and private property from destruction by fire and unlawful depredation.” It is clear that in the department of police it is sought to distinguish between officers and employees, and in section 5 policemen are spoken of independently of employees. It is true that section 10 of chapter VII, which provides that each member of the commission shall have authority to employ such employees as may be necessary to conduct their several departments in an efficient manner, and that such employees may be discharged at the pleasure of the member making such employment, is the only section in the charter which provides for the appointment of policemen. But, in view of the distinction clearly made in the sections with, reference to the police department, the word “employees” used in this section should not be held to have been used in any other than the comprehensive sense of including all persons serving the public in these departments, whether filling an appointive office or merely occupying a temporary contractual relation to the municipality as an employee; and this use of the word should not be held to deprive a policeman of the city of Pontiac of the dignity and importance which it is generally recognized attaches to his position. It is said that in the case of Attorney General v. Cain, 84 Mich. 223, on page 227 (47 N. W. 484 on page 485), it was held that a policeman was not a • public officer. But that was a quo warranto proceeding and the court said: “We do not think the position of policeman, under these circumstances, is such an office as authorizes the attorney general to file an information by quo warranto in this Court to test the title to the position. It was said in People v. De Mill, 15 Mich. 182 [93 Am. Dec. 179] that: “ ‘There are grades of positions denominated “offiees” which do not rise to the dignity of being entitled to the notice of the attorney general by information.’ See, also, Throop v. Langdon, 40 Mich. 686. “It is certain that the intent of the charter is that these policemen shall be subject to the orders and direction of the common council, and that such council, has the power at any time to remove them.” This case was referred to in the later case of Trainor v. Board of Auditors, 89 Mich. 162 (50 N. W. 809, 15 L. R. A. 95). While this latter case says that a policeman in the city of Adrian is not a public officer, referring to Attorney General v. Cain, supra, it must be said that this decision goes only to the extent of holding that, since in that city policemen were removable by the council at pleasure, it would be use less for the attorney general to institute proceedings to determine who was entitled to the position. Under these circumstances, it was not such an office as would authorize the attorney general to file an information by quo warranto in this court to test the title to the position. Being satisfied that a policeman is an appointive officer under the provisions of the charter of this city, required to take an official oath of office, which it appears was done in this case, it follows that he came within the exception in subdivision 1, § 7, pt. 1, Act No. 10, Public Acts 1912 (Extra Session), (2 How. Stat. [2d Ed.] § 3945), and is not an employee, as defined by said act, and therefore does not come within its provisions. Any effort to enlarge the scope of this act should be addressed to the legislature. The decision of the Industrial Accident Board will be reversed and the claim of the applicant is disallowed. Brooke,- C. J., and McAlvay, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.
[ 10, -64, -29, -31, 30, -1, 18, -59, 19, 28, 56, 2, 42, 14, 5, 11, -2, 59, -48, -23, 6, -14, -28, -2, -54, 34, 73, -11, -58, 4, -46, -18, -1, -4, 33, 28, 18, -17, 25, -7, 33, -8, 14, -45, 8, 18, 32, -8, -20, -32, 0, 74, -2, 81, 55, 20, 11, -3, 2, 5, -101, -28, -44, -30, -33, -33, 4, 65, 44, -46, -18, 34, -53, -10, 10, 41, 30, -4, -18, 32, -24, -6, -7, -51, 7, 41, -13, -15, 40, -48, 60, -8, -5, 7, -54, 7, 8, 25, 0, 16, 10, 17, 3, 39, -8, -16, -13, 13, 17, -27, 27, 32, 40, -68, 6, 27, 12, 10, 0, 38, 44, -10, 90, 6, -11, -39, -39, 0, -40, 21, 26, 6, 17, -43, 2, 47, -26, 28, 54, 29, -53, 38, -53, -42, 0, 22, -33, -3, 0, -15, -1, -22, 76, -44, -115, 14, 26, -9, 27, 12, -32, -19, 13, -52, -5, 1, -53, 24, -38, 23, 2, 51, 7, -37, 48, -37, -28, -2, -17, -25, -16, -5, -35, 16, 17, -38, -44, -1, 30, -41, 16, -23, 14, -14, 41, -6, -8, 65, -20, -33, 46, -11, -56, 1, -20, 0, -19, 35, 2, 64, -27, 9, 13, 6, -11, -38, -27, 31, -2, -23, 25, -38, -49, -15, 2, -36, -9, 14, -29, 13, 41, 1, 35, -18, -30, -56, -4, 11, 53, 0, -17, 33, -14, 19, -10, -87, 17, -50, 19, 56, -8, -9, 65, 11, -44, -36, -11, 0, 16, 3, 2, 23, 54, 58, 1, -48, -18, 68, -40, -9, -7, 31, 32, -2, -57, -15, 11, -22, 32, 41, -93, 15, -42, 8, -52, 2, 8, -28, 2, -32, 54, -41, -15, 45, 36, 49, 108, 28, -16, -13, -41, 36, -21, 46, 15, -14, -57, 53, 0, -3, 17, -37, 2, 55, 11, 5, -1, -21, -17, 18, -27, 0, -4, -34, 9, -83, 6, -6, 33, -44, 60, -54, -29, 8, -19, -9, 46, 25, 1, -37, -22, 6, 48, -13, -12, 24, -19, 51, 35, -60, 38, -14, 1, -3, 15, -3, -5, -6, 19, -54, -12, 30, -31, -11, -30, -8, -60, -18, -1, -15, 41, -22, -8, 9, -5, -34, 41, -1, -35, 53, 13, 22, -39, -26, -34, -17, 12, -13, -7, -75, -36, -21, -54, 40, -12, 64, 69, -5, -6, 11, 17, 37, -6, -15, 7, -1, -17, -10, -13, 43, -50, 8, 18, -43, 17, 9, 54, -33, 68, 24, 60, -11, 20, -10, 24, -2, -66, 62, 56, -74, 0, -59, 40, -36, -40, -90, -58, -81, -16, -35, -10, -38, -2, 30, -44, 17, -33, 26, -53, -17, 51, 9, 40, 45, -3, 27, 6, 15, -15, 48, -53, -22, 24, -21, 43, 8, -47, -3, -15, 18, -44, -51, -21, -5, -32, -57, -70, -2, 47, -22, 6, -72, 43, -32, -23, -49, 35, 0, 23, 21, 21, 22, -17, -8, 53, -24, 33, 15, -14, -1, 3, 2, 5, -17, -24, 20, -27, 9, 37, -5, -52, 85, 13, 51, 58, 4, 3, 24, 53, -31, 4, 12, -73, 33, 35, 31, -19, -32, -17, -29, 41, -45, 19, 0, 95, 31, 6, 30, -26, -20, 14, -7, 24, 46, 5, 20, 19, 0, 22, -10, -14, 19, 16, -51, 13, -57, -2, 9, 37, 51, -51, 34, 14, -4, 46, -10, -34, 32, 30, -2, -37, -7, -30, 11, 12, -20, 7, -25, 18, -8, 42, -40, 36, 38, 11, -15, 1, -47, 39, -34, 7, 53, -40, 21, -25, 35, -47, 11, -30, 1, 58, 33, -67, 28, 19, 23, 57, -15, 3, -18, -34, 30, 16, -41, -1, 20, -32, -3, 79, -14, -67, 43, -18, -24, -55, 25, 36, 19, 23, -21, 21, -32, -61, -18, -21, 14, 18, 0, 12, 46, 10, -35, -5, 5, -4, 53, 0, 89, 39, -21, -42, -8, 0, -11, 16, 16, -31, -1, 8, -11, -30, -3, 2, -11, 21, 29, -42, -27, -6, -64, 63, 6, 0, 1, 5, 62, 52, -20, -30, -31, 31, 9, 21, 43, 41, 5, 27, -2, -24, -37, -3, 47, 39, -25, 32, -18, -6, 13, 14, -33, -26, -33, -16, -8, -35, -27, 26, -31, 5, -17, 9, -68, 18, 8, -13, -10, -15, 5, 35, 12, -17, -4, -3, -2, 35, 13, -67, -7, -31, 20, 23, -43, 31, -60, 33, 4, -22, 34, -29, -10, -8, 2, 19, 57, -19, 12, 65, -24, -38, -5, -47, 15, 27, -44, -12, 6, 10, 49, -93, 16, -2, -16, 3, 71, 11, 0, -65, 45, 19, -40, 24, -17, 32, 49, 71, 12, -14, -57, -55, 1, 55, -16, 32, 16, -60, -33, -33, -26, -40, -1, -1, -34, -29, -28, 6, 9, 15, 2, 41, 4, 0, -30, -64, -31, 27, 18, 17, 39, 11, -33, -4, 15, -37, -17, -10, 38, 11, 61, -39, -42, -24, -15, 2, -28, -19, 3, 25, -59, -11, 8, -25, 50, -25, 35, -21, 5, -48, -25, 34, 14, 36, -14, 8, 23, 0, 67, 7, 29, -24, -19, -15, 48, -32, 27, 62, 17, 14, -5, -14, -26, 3, -1, 7, -24, -3, 4, -41, -17, 25, -22, 27, 16, 22, 30, -9, 24, -31, -30, 0, 25, 17, 37, 9, -84, 25, 31, -10, -75, 31, 20, 42, 33, -25, 14, -24, -13, 44, 5, -41, -15, 5, 64, -12, 12, -14, 4, 5, -41, -37, 38, 41, -24, 3, -46, 12, 59, -67, -35, 52, 9, -19, -16, 2, -19, 8, -62, 14, 2, -21, 11, -22, -43, 58, 20, 79, 16, 54, 10, -14, -48, -47, 4, -32, 0, -10, 26, -23, -24, 2, -20, -41, 85, 62, -33, -25, -46, -9, 5, -17, -22, -15, 16, 63, 40, -13, -28, 0, -66, -3, -33, 66, -3, -10, 23, 14, -35, -37, -8, -35, 52, -50, -37, 16, 71, 3, -25, 2, -36, 13, -11, 4, 35, -15, 46, -2, -42, -53, 12, 34, -34, 61, 19, -51, 17, -13, 5, 15, -11, -11, -26, 11, -10, 44, 9, -13, 43, 13, 62, -82, -5, 13, 7, -53, 6 ]
Stone, J. This is an action of slander against the defendant, who had been the landlord of the plaintiff, for damages for certain statements which it is alleged defendant made of and concerning the plaintiff, on the 10th day of August, 1910, about the time the plaintiff vacated the apartments known as the Vaughan apartments, which she had leased from defendant. The evidence is undisputed that the defendant was the owner of an apartment house in the city of Detroit, which he leased, under a chattel mortgage lease, to the plaintiff, beginning on the 1st day of April, 1910, for a period of five years. It appeared that when the plaintiff rented the Vaughan apart- merits she had purchased different kinds of furniture from five or more furniture dealers in the city of Detroit, in order to fit out the apartments. This furniture had been purchased on the contract installment plan, and only a small amount of cash was paid on account at the time of purchase. The plaintiff continued to occupy this apartment house until the 31st of July, 1910, when she was obliged to vacate owing to an arrearage of rent amounting, to upwards of $1,400. Some of the furniture which had been purchased from the different furniture dealers by said plaintiff remained in the apartment house when she was about to vacate, and a bill of sale was signed and executed by the plaintiff to the defendant, bearing date the 30th day of July, 1910, in and by which she bargained and sold to the defendant “all goods, chattels, furniture and fixtures, including all furniture and furnishings contained in the Vaughan apartments, Nos. 32-34 Watson street, excepting the piano and one dresser belonging to her and now in her possession” at said place. The evidence tended to' show that at the time of the execution of this bill of sale the defendant believed that plaintiff owned outright the furniture which she was transferring to him, when, as a matter of fact, there was considerable money still due the furniture dealers on account. However, counsel for the plaintiff, shortly after the transfer, did inform defendant that there was a very slight sum still due on the furniture, which the plaintiff would pay without delay, and thereby make defendant’s title to the furniture clear; but the plaintiff did not pay the balance. After the plaintiff had transferred the furniture in the Vaughan apartments to the defendant, and had vacated the same, she left Detroit to visit relatives in London, Ontario. During the month of August and beginning of September, 1910, the respective collectors for these five furniture dealers who had sold furniture to the plaintiff on account came to the Vaughan apartments, which were being conducted at that time by the defendant, and made inquiries of him regarding the whereabouts of the plaintiff and certain aforementioned furniture which their respective firms had sold to the plaintiff. In response to these inquiries of plaintiff’s creditors, defendant gave certain information as to where the plaintiff had gon.e; and it is the claim of the defendant that he tried to give them what information he could. The plaintiff’s declaration alleges: “That on, to wit, the 10th day of August, 1910, at the said Vaughan apartments, Nos. 32-34 Watson street, in the city of Detroit, with evil, wicked, wanton, wrongful and malicious intent, in a certain discourse which plaintiff is informed and believes said defendant then and there had of and concerning plaintiff, in the presence and hearing of Guy E. Barn-hart, did falsely, evilly, wickedly, wantonly, wrongfully, and maliciously, speak and declare to, and publish of and concerning plaintiff the following false, scandalous, evil, wicked, wrongful, malicious, and defamatory words, to wit (stripped of their innuendoes) : ‘Mrs. McCloy has moved out drayloads of furniture. She has disappeared. She collected rents in the Vaughan apartments. She now claims she has not collected them. She got money from the tenants in the building dishonestly, and left the city with her pockets full of money.’ ” The plea was the general issue. Upon the trial the plaintiff introduced as a witness one Guy E. Barnhart, who testified, on direct examination, in substance as follows: “He said that Mrs. McCloy was not there; she had disappeared, and the probabilities are that the goods were gone with her; that she had taken a good many of the goods out of the apartments. And I wanted to know — he wanted to know — Are the goods all paid for? I said ‘No.’ He said, ‘Well, they ought to be paid for; she had money enough to pay for them. She collected rents there, and ought to have money enough to pay for them.’ I said they were not paid for. He says, ‘Well, I don’t think the goods are in the apartments.’ I asked him if I could go into the apartments and see, and he said no, I could not. He said she had collected rents there and had not paid the rents from the tenants, and had not paid for the furniture, so he understood, or had not paid the rents to him, and he was out some two or three thousand dollars, or something like that, on rents. “Q. Did he say anything as to her financial condition when she left the city? “A. He said she had left with all kinds of money.” On cross-examination the witness further testified: “I did not go to Mr. Vaughan and ask him first for this lady’s address. I went back there and made a second trip and asked him whether he had found her address. I made two trips there. I did not have any personal knowledge that she was not at the Vaughan apartments at the time of my first trip there. When I got there I found that she was not there. I asked Mr. Vaughan what her address was. He said he didn’t know. I went back there again and asked him for the address. He did not tell me. I do not recall that he told me she was in Canada. I cannot recall as to where he said she had gone. He said she had disappeared, and I don’t think he did say that she had gone to Canada; I don’t know. I think I am safe in saying that he used the word ‘disappeared,’ not that she had gone away. He used some word to that effect. I will positively swear that he used that' word. He stated that at the first conversation. That was all the conversation that I remember took place. On the second conversation there was practically only a few words passed between us, if I remember correctly. He said he didn’t know any more about her than when I was there before. Those were all the interviews I had with him.” Defendant’s counsel requested the court to charge the jury, among other things, as follows: “(3) The testimony of the witness Guy Barnhart does not substantiate the statements set forth in the declaration alleged to have been made by the defendant Vaughan to said Barnhart on or about August 5, 1910.” “(6) There is no testimony in the case, as alleged in the declaration, that defendant Vaughan stated to the witness Barnhart, ‘Mrs. McCloy has moved out drayloads of furniture/ “(7) There is no testimony in the case, as alleged in the declaration, that defendant Vaughan stated to the witness Barnhart, ‘She now claims that she has not collected them’ [rents]. “(8) There is no testimony, as alleged in the declaration, that defendant Vaughan stated to the witness Barnhart, ‘She got money from the tenants in the building dishonestly/ ” Philip A. McHugh and Francis T. McGann, two of plaintiff’s attorneys, were sworn as witnesses on plaintiff’s behalf; they gave testimony tending to contradict one Hazel Von Meer, who had testified as to certain offers of money to her if she would testify against the defendant. On cross-examination each of these witnesses was asked the following question: • “Now, upon what percentage do you bring these cases ?” This being objected to as incompetent, irrelevant, and immaterial, counsel for defendant stated that he sought to show the interest of the witnesses in the case as it might affect their testimony and bear upon their credibility. In the same connection the further question was asked: “Q. How much is your firm going to get out of the verdict?” Same objection. Also the question: “Q. You have got these cases upon halves, haven’t you?” Objections were sustained by the court to all the above questions, and defendant’s counsel excepted. The following occurred upon the cross-examination of the defendant: “Q. Do you own the Vaughan apartments now.? (Objected to as incompetent, irrelevant, and immaterial.) “The Court: How is that material? “Plaintiff’s Attorney: To show the standing of the man financially as bearing upon the weight his word would have in the community in aggravation of damages. “Defendant’s Attorney: I object to it as incompetent, irrelevant, and immaterial. “The Court: The courts have held that you may show the reputation that he has for property. I think I will allow that. (Exception for defendant.) * * * “The Court: What is the fact, do you own the Vaughan apartments? “A. I do not. “Q. When did you sell it? (Objected to as incompetent, irrelevant, and immaterial. Objection overruled. Exception for defendant.) “A. Since the forepart of 1910. * * * “Q. Have you any interest in it now? (Exception for defendant.) “A. No. “Q. Did you own it in August, 1910? (Same objection and exception.) “A. I did not. “Q. Did you have any interest in it then? “A. I did not. (Same objection, ruling, and exception.) “Q. Have you had any interest in this property— if you had no interest in this property, why did you give Mrs. McCloy a lease upon it? (Objected to.) “A. I owned it at that time. “Q. In April, 1910? “A. Yes, sir. “Q. When did you sell it? (Objected to as incompetent, irrelevant, and immaterial.) “The Court: You may have an exception, Mr. Frazer, to all this. “A. Before August 1st. “Q. Do you own any property in your own name now? . “A. I do not. “Q. When you sold the Vaughan, for what was it sold, for what amount? (Objected to as incompetent, irrelevant, and immaterial.) “A. I refuse to answer that. (The question was-objected to, and after some argument the objection was sustained on the ground that only the reputed financial standing of the defendant was competent.) * * * “Defendant’s Attorney: I move to strike out the witness’ testimony. “The Court: All testimony as to details? “Defendant’s Attorney: All testimony as to whether he owns it or not. “The Court: Well, I think that is true, too. It is reputed worth. “Plaintiff’s Attorney: That is all his testimony? “The Court: All his testimony as to reputed worth seems to be the rule.” The defendant’s twenty-third request to charge was as follows: “There is no testimony in this case as to the reputed financial standing of the defendant, Vaughan, and I charge you that under the testimony, in this case the same cannot be considered.” In its charge to the jury the court, among other things, said: “Now, I have been asked to charge you whether these certain statements are slanderous. You will remember: ‘Mrs. McCloy has moved out drayloads of furniture; she has disappeared; she collected rents in the Vaughan apartments, and she now claims she has not collected them; she got money from the tenants in the building dishonestly, and left the city with her pockets full of money.’ Now it cannot be contended that the statement, ‘That she moved out drayloads of furniture, or that she has disappeared, or that she has collected rents from the tenants, or that she went away with her pockets full of money,’ are in and of themselves slanderous. She may have done this legally and rightfully. These statements cannot alone be considered as slanderous; they are to be taken, and may be taken, in connection with the other statements that are alleged, and if they are explanatory of those statements, or if they add to them or detract from them, they are to be considered. ‘She got moneys from the tenants dishonestly, she collected rents of the tenants, and now claims she has not done so.’ These, it seems to me, are the very material statements in this declaration. Charges of dishonest dealing, charges of obtaining money dishonestly in her business, if proven, would be actionable per se.” Upon the subject of reputed worth, the trial court charged the jury as follows: “There is one other matter which I am asked to call your attention to; considerable time has been spent here with reference to the question of the financial standing of the defendant. Now, gentlemen, the reputed financial standing of a defendant may be taken into consideration in considering how great weight his statements might have in the community, when considered by others who may have heard it. Now, that is true, but at the same time you must -be told that the financial standing is not to be taken to increase or decrease the damages; that is to say, that simply because a man has money, he is not to be mulcted in damages, or if he has- no money it is no less; it is not to be considered in that light; so you are to be very careful in considering that question. As is said by our court, it should be shown to prove the influence his words would have in the community; but the court says a jury must be cautioned against allowing such evidence to carry too much weight or influence, to swell the amount of damages.” The record discloses that the jury found a verdict in favor of the plaintiff for $1,000 for injured feelings, and a judgment was entered accordingly. This renders it unnecessary for us to consider some of the points urged by defendant’s counsel, as there seems to have been no recovery for injury to her business. The defendant has brought the case hére upon writ of error, and while many errors have been assigned, we shall not find it necessary to specifically consider all of them. The following matters are covered by appropriate assignments of error: 1. In our opinion the defendant was entitled to have the court give his ' third, sixth, seventh, and eighth requests to charge. We find in the record no testimony in support of these allegations in the declaration. They contained the very sting of the charge in the declaration. Where the record is in such a condition, and in a case where the language proven to have been used is not in substance the same language as charged in the declaration, and where the court’s attention has been called to that fact by requests to charge, we think the defendant is entitled to have such requests given. 2. We think it was competent for the defendant to show the interest, if any, which the witnesses, Philip A. McHugh and Francis T. McGann had in the case. They offered themselves as witnesses and testified. The counsel for the plaintiff claim that such testimony was immaterial. We think that they should be estopped from here claiming that their testimony was immaterial and irrelevant. It is well settled in this State that witnesses may be cross-examined as to their interest. The interest or bias of a witness has never been regarded as irrelevant. It goes directly to his credit, and may be considered by the jury in weighing their testimony. Geary v. People, 22 Mich. 220, and cases there cited; Swift Electric Light Co. v. Grant, 90 Mich. 469 (51 N. W. 539); People v. Row, 135 Mich. 505 (98 N. W. 13); Denman v. Johnston, 85 Mich. 387 (48 N. W. 565). In the last-cited case, while this court held that the statute authorizes a party to agree with his attorney for compensation, and that such agreement is not a material matter to be inquired into upon the trial, it added: “If the attorney should present himself as a witness, it might be the subject of inquiry as affecting his credibility on the ground of interest.” In People v. Drolet, 157 Mich. 90 (121 N. W. 291), this court said: “The bias or interest of a witness is always a proper subject of inquiry, and, if shown, a proper subject of argument by counsel.”' See Luckhurst v. Schroeder, 183 Mich. 487 (149 N. W. 1009). 3. We are of opinion the court should have given defendant’s twenty-third request to charge. And this upon the theory that the court struck out the testimony of the defendant with reference to his actual financial standing. There is some uncertainty as to just what the court did mean when it used the expression: “All his testimony as to reputed worth seems to be the rule.” We are in doubt whether the ruling of the court was so clear that the jury understood that this testimony was eliminated from the record. It is not necessary to cite cases to the effect that the actual worth of the defendant was immaterial and irrelevant. Reputed, not actual, financial standing of a defendant, is material. Brown v. Barnes, 39 Mich. 211 (33 Am. Rep. 375); Farrand v. Aldrich, 85 Mich. 593 (48 N. W. 628); Sanford v. Houghton, 184 Mich. 44 (150 N. W. 334), and cases cited. From the charge of the court we infer that the testimony of defendant as to his actual financial standing was treated as having been stricken out. We have looked in vain through the record to find any evidence tending to show the reputed worth or standing of the defendant. The record being in that condition, we think the court should have charged the jury as requested by defendant’s counsel. It does appear that a number of the material allegations of the publishing of slanderous words were not proven, and the jury should have been so instructed. The language as testified to was not actionable per se. Complaint is made by appellant that the testimony of the witness Becker, and others, did not show a repetition of the alleged slander. Proof of repetition of slander does not mean a verbatim repetition. The evidence is intended to show malice in repeating charges of a substantially similar nature, and calculated to produce the same impression on the community. Brown v. Barnes, supra. We do not find it necessary to discuss any other of the many assignments of error. The questions raised are not likely to arise upon a new trial, in view of what we have said. 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.
[ -23, 6, -39, -2, -12, -17, 38, 21, 3, -17, 4, 40, 1, 12, 4, 1, -10, -18, -40, 15, 49, -34, -8, -46, 24, 3, -13, -61, -11, -9, 13, -10, 7, 13, -27, -8, 12, -12, 17, -16, 39, -16, 25, 32, 22, 10, 4, -11, 46, -16, 23, -37, 20, 2, -16, -39, -51, 30, 23, 18, 14, -21, -30, -84, 9, -40, 44, -18, -15, -22, 30, -5, 54, -22, -52, -28, -43, -1, -10, 29, 1, -47, 31, -10, -64, -24, 16, 13, -67, -3, 6, 43, 49, 53, -5, -4, 11, 23, 44, -21, -15, -3, 0, 5, 31, 20, 17, -34, -22, -1, -6, -14, 82, 44, 30, -6, 34, -15, 12, -28, 22, -28, -7, -48, 39, 12, -18, -13, 14, -13, 33, -9, -21, -6, -11, 6, 4, 49, -8, 11, 42, 45, 14, -18, -18, 42, 11, -10, -35, -24, -47, 10, 8, 51, 62, -37, 2, -25, 42, -35, 19, -63, 12, -31, -15, -37, -24, 20, 40, 0, 13, -18, -24, -45, -17, 36, -23, 1, -32, -44, 33, 19, 11, -33, 26, -71, 33, -39, 47, 7, 63, -20, -47, 49, -12, 17, 2, -9, 21, -53, 7, -34, -13, -38, 31, -21, 22, -7, 15, 47, -12, 13, -25, -67, -14, 11, -5, -28, 8, 26, 39, -19, -28, 39, -63, -24, 2, 18, 38, 16, -45, -7, 15, 31, -2, -8, 3, 45, -5, -14, -54, 15, -22, 41, 5, -4, -59, 11, 13, 4, 28, -2, 4, 35, -27, 6, 27, 5, 21, -15, -21, 35, -43, 6, 66, -7, -9, -19, -37, 9, -10, -4, 8, 23, -32, -57, -39, 1, 8, 3, -5, -46, -10, -12, 40, 17, 45, 33, -16, -47, -22, -3, 3, -40, 10, -12, -14, -14, -16, 32, -28, 3, 30, 6, 0, 22, 26, 23, -48, 9, -15, -56, 44, 10, 11, 2, 17, 26, -18, -17, 52, -10, -36, 85, -14, -43, 25, -45, -21, -20, 4, -19, 7, -27, -11, 21, 9, -9, 2, -47, 16, 30, 4, -36, -17, 17, 0, -31, -16, 1, -31, -37, 10, 55, 46, 18, 26, 22, 7, 11, 66, 24, 0, -1, -28, -37, -43, -35, 0, 69, 2, -2, -45, 15, 0, -17, -6, -8, -6, 44, 25, -23, -4, 34, -2, -25, -31, -59, 21, 2, -62, 60, 16, 6, -15, -69, -4, 9, -62, -12, 21, 59, 25, -5, -69, 23, 12, 10, 14, 40, -25, -13, 0, -20, -16, 10, 27, -17, 12, 43, 12, 40, 49, -7, 52, -21, 34, -16, 27, 18, -36, 41, -7, -11, 36, 0, -50, -2, -30, 23, 10, 9, -29, 39, 8, 37, -68, 11, 27, 5, -10, -3, -14, 11, 35, -18, 16, -11, 62, 8, 34, -46, 15, 15, -22, -11, 18, -25, -45, 32, 1, 6, -5, -33, 1, 0, -22, -22, -2, 40, 33, 32, 46, 48, -53, -14, -1, -52, -11, 48, 35, -30, 21, 32, 15, 3, 8, -20, -22, 4, -38, -7, 34, 15, 8, -14, -4, -7, 24, 46, 0, -1, -22, 14, 11, 44, 31, -9, 51, 29, 22, 42, -13, 26, -2, -15, 57, -16, 13, 11, 19, 24, 5, -10, 7, -25, 9, 0, 20, 11, -17, 53, -7, 23, -42, 46, -10, -52, -4, 66, -7, -35, -15, -34, -20, -7, 24, -5, -28, -5, -36, 1, 36, -32, 51, -52, 8, -48, 27, 4, -44, 22, -14, -14, -82, -8, -18, -24, -38, -23, -11, -22, 12, -20, -43, 18, 23, 1, -20, 43, -1, -15, 10, -32, -3, -29, -50, 2, -7, -8, 4, -62, -7, -64, -57, -39, -34, 30, 8, -22, 53, -3, -42, -7, -16, 24, -7, -9, 36, 30, 34, 2, -14, 3, 20, 17, 8, -8, -24, 23, -38, -1, 34, 41, 34, 28, 54, 8, -22, -32, -31, 12, 12, 36, -36, 85, -33, -11, -19, 5, -38, -3, 64, 7, 10, -16, 61, -32, -7, -24, 8, -13, -15, 29, 31, -23, 5, -25, -30, -1, 18, 3, 22, 34, -8, 2, -42, -26, 11, -11, 5, 19, 0, 18, -9, -7, -10, -38, -19, -3, -12, -13, -32, -11, -9, 20, 37, -12, 41, -6, -23, 2, 53, 37, 0, 9, 29, -7, -34, -14, 45, -24, 16, 0, -29, 42, -15, 2, -34, 2, -28, -17, 41, -26, -4, -42, -5, 16, 2, 4, 25, -26, 11, -4, -29, 6, -68, 18, -15, -25, -8, 25, -2, -31, 10, -53, 46, -20, 0, -28, -10, -5, 2, 15, 15, -46, -1, -23, -41, 13, -13, 43, -5, -38, 4, 0, -11, 12, 0, -64, -28, -8, -13, -14, -15, 33, 4, 46, 7, -32, 46, -46, -33, 25, -53, 3, 14, 24, 45, 47, -6, -34, -33, -46, -50, -9, 4, -55, -18, -5, 2, 28, 22, 37, 1, 31, -21, 16, -42, 24, -43, -13, 2, -41, -45, 25, 3, 32, 20, 19, -10, 10, -24, 0, -3, -26, -38, 17, -21, -1, 42, -14, 19, 31, -21, 8, 18, -9, -18, 17, -39, 13, -22, 46, 24, -3, 20, 38, 0, -4, -13, 11, 10, -2, -9, 14, 2, -8, 25, -6, 0, -15, -28, -28, -13, 32, -22, 12, 47, 22, 17, 12, -25, 17, 51, 38, -4, -14, 32, -10, -42, 33, -10, 13, -15, 72, 32, -19, -59, 34, -4, 9, 25, -61, 2, -3, 29, -35, -2, -29, 16, -19, -28, 23, -23, -14, -1, 27, 9, -34, 14, 2, -13, 1, -30, 31, -31, -14, -1, 6, 8, -12, -34, -10, 33, 13, -10, 3, -38, 38, -13, -39, 0, 1, 38, -14, 9, -68, -12, 35, -1, -28, -7, -20, 33, 40, -7, -7, 15, 6, 21, 44, 46, 51, -28, 19, -31, -22, 6, -5, -8, 12, 24, -68, 34, -17, 18, 10, 24, -22, -23, -43, -5, -20, -6, -12, 26, 34, 3, -36, 16, -29, -38, 0, 19, -14, 49, 15, -33, -11, 11, 7, -43, -7, -12, -12, 10, -33, -1, -65, -28, -3, 29, 9, 58, 1, 37, 28, -3, -11, -51, 0, 7, 55, -18, 16, -27, 39, 32, -32, 12, 12, 8, 54 ]
Ostrander, J. (after stating the facts). 1. It was held in Chicago, etc., R. Co. v. Babcock, 204 U. S. 585, 27 Sup. Ct. 326, cited by plaintiff, that in an independent proceeding attacking the judgment of an assessing board it is improper to cross-examine the members in an attempt to exhibit confusion in their minds as to the method by which the result was reached. It was further held that, in a suit to. declare void assessments, the court would not consider complaints as to the results reached by a State board of assessors, except those based on fraud or the adoption of a fundamentally wrong principle. It was said: “The board was created for the purpose of using its judgment and its knowledge.” “Within its jurisdiction, except, as we have said, in the case of fraud or a clearly shown adoption of wrong principles, it is the ultimate guardian of certain rights. The State has confided those rights to its protection, and has trusted to its honor and capacity as it confides the protection of other social relations to the courts of law. Somewhere there must be an end.” The conclusions and the language here referred to may be adopted by this court in this case. Appellant says: “We do not claim that Mr. Shields was limited to any particular process of reasoning in arriving at the valuation of the land, or that there was any legal objection to making any reasonable calculation of the probable profits of the business' of mining the ore to aid his judgment, in arriving at the value of the mine. What we object to is the adoption of any calculation intended to embrace the present worth of all the profits as the measure of the value of the land.” As witnesses for plaintiff and for defendant, who spoke upon the subject, maintain, some such method as that of Mr. Finlay must be used to determine the value of the mineral, and therefore of the land. And if it is true that the Finlay method necessarily led to a valuation of the mining business, it does not follow, I think, that its result was not the fair value of the land. Large iron mines are, it seems, very infrequently sold. Comparisons, therefore, cannot be made to determine the cash value by any standard of selling value. The statute direction, already referred to, is that the quantity and value of minerals, when known to be available therein, must be considered by the assessor in determining the value of land for taxation. It will be admitted that the availability and value of minerals, unmined, are not matters of common knowledge, nor to be correctly ascertained or estimated except by men possessed both of certain particular information and of expert knowledge. A number of factors have to be considered in determining whether, it being made apparent that there is a deposit of ore in a given locality, it is available, there being no mine or mining carried on. Its availability. —that it has commercial value and the ease and cost of coming at it in mining — would have to be considered, as well as its quality and quantity. The extent and quality of the ore body being known, or estimated, one important factor in determining taxable value — cash value — would be secured. This factor being considered, some person or corporation might be willing to undertake the mining of the ore, paying the landowner therefor. Usually, the price to be paid would be a fixed price per ton during the continuance of mining operations, or a variable price, depending upon the quantity, or selling price, of ore mined and shipped, or both. The expense of opening the mine, of conducting mining operations, would be incurred, and if the adventure was successful the owner of the fee would receive, in installments, his royalties, his selling price of the ore. For purposes of taxation, the State would not be bound to accept the amount of royalty bargained for by the landowner as controlling its valuation of the land. It might occur — has frequently occurred — that, the ore body being developed, the owner of the mining lease would be able to sell it upon a royalty basis in excess of the royalty reserved in the lease. And, besides, the miner pays the royalty and still, if successful, makes a profit on. the ore. In the case of the Newport mine, at the time the assessment complained about was made, much that in a new adventure would be considered as problematical, as uncertain, had been made certain. The mine was in operation. The quality of ore was assured, the quantity to a certain point was actually determinable, measurable. Experience had proved that, as the mine was equipped and managed, a definite quantity of ore could be, had been, moved and marketed, annually, the cost of mining and the market price of the ore. The equipment, costly or otherwise, was performing its part in the operation. At a given rate of mining the ore body would be exhausted in a determinable period, during which period the value of the ore would be recovered in installments. No question remained concerning the quantity of the ore in sight, its availability, or its immediate value when mined. What remained to be determined was the quantity of ore not in sight, and the present value of the land. . What would an intending purchaser have done, under such circumstances? What would the landowner have required? Clearly, first, an estimate of the quantity of ore not in sight. Such an estimate having been made, the price to be paid would depend upon the views of the buyer and the seller as to the annual rate of mining and the market value of the ore mined. The rate of mining would enable them to judge, not with absolute precision, the rate of recovering the value of the ore. It is not important to know just what terms a buyer and seller of the mine would agree upon. The point we are concerned with is whether a method, wrong in principle, was adopted by the assessing officers in their endeavor to form a judgment as to the present value of the particular land. There is no reasonable ground for contending that the State may not use the methods of business to ascertain such values. In such a case, it is not compelled to ignore, or discount, the facts of demonstrated availability, quantity, and quality of mineral. If a rule or method exists by which engineers and business men ascertain the values of ore bodies for the purpose of buying and selling them, if no better rule is or can be suggested, how can it be said that the rule is wrong in principle when adopted by the State ? The State must, of necessity, treat the peculiar subject of taxation as the subject requires, not to change or modify a cardinal rule of taxation, but to apply it. Upon this record no other rule is suggested, and the rule employed is conceded to be the rule of engineers in like cases. That all of the mineral in the ore body is not in sight is conceded. What ought to be added is matter of judgment. The legislature provided as an aid to assessing officers expert judgment upon the subject. Experience has, to some extent, confirmed the estimate which was made. The future cost of mining and the future price of ore are uncertain, but not too uncertain to be made the basis for present valuation of the mine, as matter of business. The State may act upon considerations which business men act upon, so long, at least, as those considerations appear to universally affect and determine, for business purposes, for buying and selling, the value of mining properties. At present, the method employed appears to be scientific, and the result justified by experience. Opinions may differ concerning the rate of interest upon which amortization should be computed. It does not appear that the judgment of the board was exercised upon other than a sound foundation, with a sincere purpose to reach a proper conclusion. There is another consideration affecting the question at issue. The board did not adopt the valuation of the experts. On the contrary, it assessed the property at a sum nearly $5,000,000 below that valuation. Was this an extravagant valuation, in view of all facts before the board? Suppose it did adopt Mr. Finlay’s method, will it be contended that if the valuation placed upon the mine was no greater than its owners would concede to be its value, because the method was employed the tax must be held invalid? But, as has been pointed out, the result of the method, that is to say, the result of the combination of factors employed by Mr. Finlay, as he employed them, was not made the conclusive measure of the value of the land. The board did not adopt, as the measure of the value of the mine for purposes of taxation, an estimate of the future profits of the business of mining and selling ore. 2. There is yet to be considered the contention that the plaintiff’s property was valued, relatively, at too large a sum. In the argument, valuation of mines is contrasted with valuation of other classes of real property and with valuations of personal property. It is contended, anticipating the argument of necessity, that at any rate the valuation of real property in the assessment district should have been relatively equal, and that it is shown that it was not so. It appears that the State board of tax commissioners had some information, and that the individual members shared with many others a belief, that the property of the State was not uniformly assessed at its cash value. Before the year 1911 the board had power, when a complaint was made to it, to review rolls in the district from which the complaint came. It had not until the year 1911 power to undertake such a review of rolls upon its own motion. The history of legislation upon the subject confirms the fact that the belief was very general that local assessing officers did not, as a rule, value property for assessment at its cash value, and that the feeling was general that the condition ought to be remedied. The information, which in 1911 the board derived in part from Mr. Finlay, was that in Gogebic county the total assessed value of real estate in the county was $12,829,605, of which $7,491,457 was the value of mining and $5,338,148 was the value of nonmining real estate, that the value of mining property alone was, in fact, $41,560,000 and of nonmining $14,907,012. In the city of Ironwood in 1911, real estate was assessed by the board of review — mining at $3,427,413, nonmining, $918,560, a total of $4,345,973. The information derived from Mr. Fin-lay was that the mining property in the city was worth $35,170,000. The board submitted the information it had to the State board of equalization, not as decisive of what it would assess the property of the county for, but as information which had come to it. In 1912, the nonmining real estate of Ironwood was assessed at $2,778,453, the total nonmining property of the county at $18,504,105, the total real estate of the county being assessed at the sum of $45,715,405. The argument that property, generally, in the State was underassessed in 1911, and that the property of plaintiff was therefore relatively and fraudulently overassessed, is answered, I think, by the statement that, admitting there was a general condition which needed to be remedied, the remedy had to be applied in detail and not generally, unless the last condition was to be made worse than the first. There is more force to the argument that, having entered a district for the purpose of applying the remedy, it should have been applied to all property, and not to mining property alone. The argument considerably disturbed the trial court, as appears from his charge. The reason assigned by the board for not generally reviewing the assessment rolls was lack of time. No one can tell what it might have done had a review been attempted. I am impressed that sufficient appears to show that the burden placed upon mining property, including that of plaintiff, when compared with nonmining property, was excessive, that no sufficient data appears for determining what would be a relatively equal burden, and that the whole tax ought to be held fraudulent and void. A majority of the justices are, however, not convinced that this fact is made to appear in the particular case. In support of an opposed conclusion it is said that it cannot be assumed for the purposes of this case that the nonmining property in the county in 1912 was substantially the same in value as the nonmining property there in 1911, and that in any event we are not required in this case to consider the valuation of the entire county. The record discloses no specific data for the conclusion that nonmining property in the city of Ironwood was not assessed in 1911 as high, relatively, as was the mining property. It has been pointed out that Mr. Finlay gave it as his opinion that the mining property in the city was worth $35,170,000. The board valued it at $23,283,000. Assuming that the valuation fixed by the board was the fair cash value, how can it be determined that other property in the city was not relatively assessed at its cash value? The board reported to the State board of equalization that real estate, as a whole, was assessed in the county at 22.7 per cent, of its actual value. But it does not follow that in Ironwood, in which the plaintiff’s mine and others were situated, real estate, other than mining, was assessed at only 22.7 per cent, of its value. Mining property in the city was assessed at only 10 per cent, of its value, as finally determined by the board. There can be no doubt about the rule relied upon by plaintiff. It has been repeatedly announced and applied by this court. While exact equality in taxation can never be achieved, intentional inequality of assessment invalidates the tax. Merrill v. Auditor General, 24 Mich. 170; Auditor General v. Hughitt, 132 Mich. 311 (93 N. W. 621); Solomon v. Township of Oscoda, 77 Mich. 365 (43 N. W. 990); Auditor General v. Pioneer Iron Co., 123 Mich. 521 (82 N. W. 260). It is as well settled that fraud in the assessment must be made out. The things supposed by plaintiff to be tangible evidence of the fact that the valuation of one class of property in the city was raised, and that the valuation of another, or of other classes, known to be undervalued, was not raised, are: First, the general impression concerning the general undervaluation of all property; second, the increase in assessed valuation of other property in the city in 1912; third, the report of the board to the State board of equalization, which is treated as an admission of its information upon the subject. The reply is that no one can point to anything in the record which clearly justifies a finding that mining property was assessed relatively higher than other property in the city in 1911. The judgment is affirmed. Brooke, C. J., and McAlvay, Kuhn, Stone, Bird, and Steere, JJ., concurred. Moore, J., did not sit.
[ 12, -9, 32, -56, -9, -16, 76, 14, -36, 54, 46, -22, 33, -9, 31, -15, -27, 31, -1, 22, 0, 0, -1, 29, -22, -49, 59, 12, -29, 25, 17, -4, -38, 1, 0, -5, -39, 9, 14, 31, 13, 52, 1, -70, 0, 0, -25, -71, -6, -24, 26, 29, 58, 17, 41, 18, -15, 22, 30, 5, 53, -43, -1, 7, 74, -23, -5, -32, 36, -32, -79, 6, 22, -61, 35, 3, 64, 9, -8, -16, -8, -1, 7, 33, 27, 5, -4, 0, 19, -9, 43, -3, 22, -12, -22, 8, 1, -2, -11, 37, 28, 32, -24, -9, 5, 23, 3, -17, 86, -48, -33, 32, 7, -11, -43, 16, -4, -13, -28, 13, -9, -32, -4, -27, -20, -16, 1, -3, -14, 8, -13, 1, -18, 22, 31, -17, -22, -62, -27, 5, 0, 23, 1, -8, -33, -10, 43, -43, 12, -5, -50, -26, 19, -16, -1, -15, 31, -38, 1, -59, 50, 49, 18, 17, -38, 16, 19, -28, -12, 9, 78, 19, -9, -25, 22, -18, 0, -9, -42, 23, -24, -57, -5, 34, 9, -11, -19, -13, 26, -22, 21, -17, 18, 0, -4, -37, 1, 27, 25, -43, 15, -1, 17, 58, -45, 28, 25, 26, -22, 55, -24, 27, -23, -23, -12, 21, -44, -22, 29, -39, 5, -33, -12, -15, 2, -39, -22, 25, -17, -19, -30, 29, 24, -16, 11, -20, 31, -11, 23, -30, 3, 0, -18, 29, -68, -28, -28, -22, 60, 82, -9, 23, 6, 1, -46, -29, -19, 36, -46, -45, 5, 34, -40, 34, 13, 15, -30, 28, -42, 0, -5, -10, 20, -19, -35, -46, 4, -62, 14, -46, 34, 8, 41, 25, -9, 49, -10, 34, -15, -1, 19, -23, 49, -29, 62, -15, -15, 32, 83, -34, -5, 10, -33, -22, 62, 19, -20, 38, 11, -40, -6, -45, -51, 16, 98, -30, -17, -42, 42, -24, -44, -34, 7, -27, 13, 15, 42, -25, 17, -28, -5, 12, 52, 47, 28, -32, 7, 3, 19, -14, -40, -19, -3, -50, 34, 32, -69, -8, 7, -30, 5, 42, -23, 43, -38, 4, 31, 17, -8, 0, 28, 3, -12, 17, -24, -46, -33, -17, 10, 19, 31, 33, 25, -3, 61, 0, 29, 10, -23, 40, -50, 32, 39, -29, 50, -46, -18, -17, -5, -29, -50, 14, 23, 57, -31, 48, 28, -21, -40, -2, -50, 23, -10, 0, -45, -67, 32, -60, -48, -20, 25, 27, 0, -19, -11, -18, 30, 25, 10, -5, 32, -12, 23, 23, 42, -48, -14, -22, -40, 16, -39, 19, -27, -41, -26, -73, -10, 28, -26, -25, -66, -6, 34, 5, -45, -30, -5, 0, 6, -25, -10, 20, 5, -3, -11, 12, 63, -40, 23, -4, 12, -17, 59, -13, -18, -43, -16, -23, 67, 25, 0, 46, -16, 5, 20, -4, 35, 21, -32, -33, 58, 1, 6, -1, -12, -28, -28, -1, 6, 36, -20, 11, -11, -31, -51, -11, 9, -39, 21, 17, -3, 18, 23, -45, 19, 21, 14, -34, 50, 22, 16, -25, 27, 48, -1, 2, 0, -4, -33, -7, 10, -30, -47, -35, 8, 0, -35, -30, 57, -12, -38, 38, -24, 9, -38, 28, 19, -8, -48, -39, -1, -51, 40, 15, -20, -42, 13, -57, -1, -25, -15, -28, 30, 16, 17, -34, -37, 0, 19, -31, -40, 78, 19, 27, 31, -17, -15, -3, -7, 8, -7, -20, 5, 38, -16, -10, 21, -4, 5, -6, -14, 7, -18, -45, -3, 14, 40, -48, 65, 31, 36, -37, -24, 43, -51, -75, 18, 47, 72, 47, 8, -23, -57, -58, -36, -26, -41, -20, -60, 14, 30, -46, 33, -28, -31, 23, 3, -29, 16, 32, -2, -30, 7, -39, -14, 3, 45, -6, -34, 17, -7, -45, -39, 69, 27, -5, -18, 27, -14, 9, 7, -16, 9, -23, 10, -18, -49, 47, 41, -29, -17, 25, 30, -42, -16, 31, -25, -41, -5, -33, 61, 11, -13, 19, 15, 30, -16, 27, 79, -14, 18, -32, 4, 1, -3, -10, 25, -18, 13, 78, -2, 3, 6, -3, 25, 10, -51, 40, 30, -37, 24, 28, 2, -8, -66, -52, 35, -9, 9, -54, -14, -33, 34, 30, -28, -12, 30, 29, 26, 4, 31, 12, -29, 36, -8, 15, 1, 61, -46, 29, 24, -68, 45, 10, 37, 8, 25, 13, -39, -16, 24, 3, -16, 1, 11, 5, 3, 1, -19, -17, 24, -15, 5, 16, 0, -21, 58, -45, -17, 16, 7, 4, 16, 5, -30, -22, -30, 10, 1, -47, 6, -9, -78, -1, 0, -28, -13, -32, -9, -3, 16, 2, -44, 25, -9, 54, 0, 7, 58, 17, 26, 3, -15, -4, -6, -63, -32, -40, -17, 22, -25, -25, 12, -17, -6, 14, 7, 26, -12, -20, 22, -10, -50, -22, -4, 26, -15, -12, 15, 34, 17, -36, 6, -25, -18, -10, 5, 42, -42, 8, -59, 48, 10, 5, -38, 50, 0, -37, 21, -21, -9, 25, -5, 51, 65, -49, -32, -24, 12, 2, 15, -13, -30, -1, 14, 7, -42, 2, -4, -9, -19, 30, 32, 41, -8, -4, 19, -2, -21, 64, 22, 25, -42, 36, -11, 52, 11, 67, 1, -14, -35, 49, 61, -2, -27, 19, -61, -38, -39, 12, -41, -10, -15, 1, -1, -19, 109, -38, 52, 9, 15, -60, 35, 34, 9, -27, -36, -25, 3, -13, -8, 6, 14, 11, 26, 9, 27, -23, -3, 46, -7, -9, 6, 33, -9, 12, -11, -38, 21, 31, 14, -12, -6, 35, -41, 7, 20, 28, -3, 77, -35, 0, -5, -5, 26, 6, -51, -20, 7, 6, -20, -32, 5, 74, -23, -19, -40, 32, 48, 12, 29, 7, 36, 60, 3, -29, -34, -53, -35, -20, 25, -22, -7, 32, -8, -9, -4, 5, -20, -1, -23, -35, 20, -24, -19, -32, 20, -20, 0, -32, 17, 3, 2, 36, -2, -10, -5, -5, 12, 43, -58, -9, -24, 20, 4, -25, 20, -17, 9, -27, 29, 6, -13, 5, 32, 30, -11, -38, 32, -36, -24, 5, 34, 47, 26, 28, -7, -9, 19, 5, 14, 10, -59, -2 ]
McAlvay, J. Plaintiffs recovered judgment against defendants in the circuit court for the county of Kent in an action on the case for the value of 250 bags of beans. Defendants have removed the case to this court for review upon writ of error. The material facts in the case are not complicated and require but a brief statement. Plaintiffs, copartners, who were engaged in the produce business at Lowell, Mich., on April 24, 1912, sold to A. J. Thompson Company, of Chicago, four cars of beans, and on April 26th received • an order in writing from the vendee to ship one car of these beans to their order to Evansville, Ind., giving directions as to the route, to notify Ragon Bros., of that place, and to “allow inspection.” According to these instructions, plain tiffs, on the day last mentioned, delivered said car of. beans, containing : 250 bags, to defendants, and received from them what is known as an “order notify” bill of lading. The material parts of this long document only require to be stated, as follows: “Order Bill of Lading — Original. “Received * * * at Lowell, Michigan, April 26th, 1912, from L. P. Thomas & Co., the property described below. * * * Consigned to order of A. J: Thompson Co., Evansville, Indiana. Notify Ragon Bros, at same (place). * * * “Allow inspection. ' “L. P. Thomas & Co., Shipper. “M. B. Conklin, Agent.” It also contained the following: “The surrender of this original order bill of lading properly indorsed shall be required before the delivery of the property.” • As this property was not paid for, plaintiffs immediately mailed this bill of lading with draft for the price of the beans attached to Kansas City for collection, as instructed by vendee. The car went forward to Evansville, Ind., and the beans were delivered to Ragon Bros, by the terminal carrier without the production of the original bill of lading, upon presentation of the following written order: “Chicago, May 3rd, 1912. “Car No. 42480, P. M. “E. T. H. R. R., “Evansville, Indiana. “Please deliver Ragon Bros. 250 bags of beans out of car 42480 P. M. on payment of charges without surrender of original B-L. “Arthur J. Thompson Co., per Zima.” Ragon Bros, having paid all the freight charges. The draft sent to Kansas City with bill of lading attached was returned to plaintiffs June 6, 1912, unpaid. A second draft for the same amount with bill of lading attached, upon request of A. J. Thompson Company, was sent by plaintiffs, June 15, 1912, to Chicago for collection, and with the bill'of lading was returned unpaid July 1, 1912. The draft and bill of lading were afterwards again sent to Chicago, August 2, 1912, with instructions that if not paid on presentation to return at once. This draft was not paid and was returned to plaintiffs with bill of lading attached, August 8, 1912. Plaintiffs, not having been paid for these beans, began this suit. Issue was joined, and a trial was had before the court without a jury. Findings of fact and conclusions of law were made and filed by the court in favor of plaintiffs and against defendants, upon which a judgment in favor of plaintiffs was accordingly entered. - Certain amendments to these findings of fact and conclusions of law were proposed by counsel for defendants and considered and argued before the court, which, except as to immaterial omissions and modifications, were denied, and exceptions to such denials were duly taken. The errors assigned and relied upon by appellants in this court are presented in three groups, which are stated by counsel as follows: “(1) The court erred in refusing to hold that, the consignor having consigned the goods to the order of the consignee, the delivery of the goods on the consignee’s written order without the production of the original order bill of lading gave the consignor no right of action against the carrier. “(2) The court erred in holding defendants liable as an initial carrier on a claim of the kind involved in this suit. “(3) The court erred in holding that the evidence sustained the allegation that damage resulted to the plaintiff from the delivery of the shipment complained of in this action.” Counsel for appellants base their argument in support of the first proposition upon the case of Nelson Grain Company v. Railroad Co., 174 Mich. 80 (140 N. W. 486), contending that this court so held in that case. In a recent decision handed down by this court where a like contention was made under a bill of lading in all respects similar to that which is the basis of the instant case, this court distinguished the Nelson Grain Co. Case, and held as follows (after stating the facts and the question involved therein) : “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. (Citing authorities.)” Turnbull v. Railroad Co., 183 Mich. 213 (150 N. W. 132). As far as this first contention is concerned, this decision is conclusive. The trial court therefore was not in error in refusing to hold as requested by counsel for defendants. The second proposition of appellants, that there was no liability upon the initial carrier for a loss of the kind involved in this suit, for the reason that the Federal statute under which the action is brought does not cover such a claim, cannot be sustained. This question has been passed upon by the Supreme Court of the United States, followed twice by this court, holding that the initial carrier is liable. Atlantic, etc., R. Co. v. Mills, 219 U. S. 186 (31 Sup. Ct. 164, 31 L. R. A. [N. S.] 7); Sturges v. Railway Co., 166 Mich. 231 (131 N. W. 706); Perkett v. Railroad Co., 175 Mich. 253, at page 259 (141 N. W. 607). Upon appellants’ third proposition, it is only necessary to state that the evidence in the case was undisputed that plaintiffs had, by reason of the unauthorized delivery of these beans by the terminal carrier, suffered a loss to the amount of their value. The record does not disclose any error on the part of the trial court. The judgment is affirmed. Brooke, C. J., and Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.
[ -20, 10, 8, 17, -37, 2, 52, 14, 25, 3, -37, -34, -5, 6, -56, 7, 10, -22, 49, -19, 40, -10, -18, 14, -6, -34, 15, -9, -16, 70, -15, 33, 19, -12, 1, 54, -25, 7, 15, -41, 13, -59, 42, 40, 0, 1, 37, -26, 81, -10, 20, -16, 6, 22, -35, -2, -83, -1, 19, 5, 46, -18, 28, -52, 0, -15, -9, 6, -15, 43, 11, -7, 0, -28, 15, -43, -15, -31, -22, -32, 4, -28, 63, -7, -54, 8, -19, -20, 14, 5, -26, -35, -33, -48, 53, 7, -12, 54, -17, -15, -6, -18, -40, 6, 13, 50, -9, -5, -44, 47, -1, 6, 29, -63, -1, 30, -10, -13, 24, 25, -16, -8, 25, -53, -32, -16, -19, -11, -24, 54, 26, -5, -49, 52, 7, -6, 13, 18, -32, 30, 36, 10, -45, 28, -83, 6, -32, 11, -12, -9, -38, 13, -6, 18, -30, 2, 55, -33, 34, -55, 0, -3, 18, -15, -31, 5, -36, -44, 1, 3, -30, -49, 2, 40, 5, 51, 10, -46, -9, -14, 20, -43, 8, -16, -35, 15, 12, 27, -31, -5, 63, -24, -2, 17, -27, 9, 18, 11, 31, 6, 20, 0, 2, -9, 6, 1, 62, 15, -29, -41, -53, -60, -9, -47, 20, 0, 12, -43, 11, -45, -5, 13, 12, 35, 12, -66, 11, 40, 4, -6, -32, 42, 32, -4, 7, -1, -7, -31, 32, 10, 5, -16, -53, -57, 6, 29, -13, 3, 1, 70, -16, -10, -29, 12, -14, -49, 12, 61, -20, 23, 8, 42, -42, 3, 36, 0, -18, 31, -26, 31, -21, -59, 14, -34, 3, -26, -59, 42, -2, -26, 20, -55, -33, -9, 5, 4, 17, 14, -23, -7, -22, 22, -18, -10, 32, 43, -20, 0, -24, -15, -55, -19, -26, -50, -3, 3, -25, -5, 2, -29, -2, -22, 10, -70, 3, -38, -1, 56, 19, -14, -75, 22, 7, 35, 72, 32, 30, 3, 32, 9, 15, -30, 7, -33, -22, 7, 25, 48, 58, -8, 50, 21, 0, 36, -17, -8, 23, -26, 0, -29, -4, -13, 19, 51, 41, 11, 23, 35, -24, 55, 55, 22, 18, 29, 1, 36, -13, -11, -52, 39, 27, 11, -2, 9, 13, -10, -71, -37, -13, 22, 11, -39, 0, -39, 37, -39, 0, 11, -41, -8, -10, 7, 13, 24, 35, -23, -28, -28, -14, -4, -5, 44, -22, 27, -17, 10, 5, -14, 42, -39, 26, -4, 5, -16, -29, -37, 17, 3, 36, 12, 54, 37, 1, -64, 56, -38, 67, -1, -9, 14, -6, -19, -13, 18, -15, 56, -21, -19, -1, 22, -4, 8, -47, 25, -23, 1, 2, 1, 40, 38, 40, 17, -8, -54, 27, 65, -4, -13, 10, -7, 10, -42, 19, 34, -56, -19, 60, -37, 53, -16, -49, 41, 23, -9, -49, -5, 27, -5, -43, 15, -10, 49, -4, -49, -3, -32, -15, 18, -41, 31, -19, -13, 17, 45, -15, 10, -24, 15, -5, -27, -10, -41, 13, 18, 20, 44, -4, -22, -3, 43, 25, -12, 33, -44, 0, -6, -6, 36, 0, 22, 2, -22, -94, 37, -41, 57, 37, -35, 39, -12, 14, -5, -36, -38, -32, -2, 13, 8, 49, -24, 41, 24, 49, -44, -31, -5, -22, 2, -28, 24, 19, -1, 46, -27, -8, 15, -3, 29, -3, 8, -18, 7, 3, 10, 16, -7, 15, 10, 44, 27, -33, 16, 34, 43, -16, -11, -22, -43, -5, 12, -6, -5, 0, -75, 13, 15, 51, -8, -6, -37, 3, -2, 12, -7, 32, -30, 16, 9, 66, -17, 12, -51, -51, -13, 7, -26, -22, 27, -84, 3, -11, 24, 2, 13, -19, -22, -22, -14, 23, -28, -48, -66, -33, 42, 0, -22, -1, -10, -16, 52, -16, -19, -21, 20, -45, 38, 0, 18, -34, -24, -6, 2, 29, 0, -2, -27, 9, 38, -8, 37, -22, 9, 14, 41, -73, -11, 20, 22, 9, -4, 34, -27, 18, 27, -20, 15, 17, 7, 44, 15, 16, -52, 24, -33, 46, -23, -25, 45, 30, 24, -2, -2, 16, -11, 8, 6, 2, 10, 10, -41, -27, -28, 15, 25, 35, 6, 17, -1, -13, -50, -8, -9, 3, -4, -7, -10, -45, 4, 11, -6, -22, 13, 26, 0, 27, 20, 18, 47, -16, -57, 43, -11, 71, -15, -11, 33, 12, -25, -59, 30, 5, 44, 16, -24, 21, 43, 15, -27, -50, -3, -8, -40, 23, 0, -27, 52, -27, -2, -5, 56, -1, -10, -6, 10, -38, -15, -24, -1, -22, -48, 9, -14, 17, -49, -55, 17, 20, -24, 17, -9, -35, -28, -5, -39, 4, 27, 27, -12, 46, -22, -28, -19, 21, 7, 52, -41, 6, 14, 50, 33, -20, -24, 15, 22, -34, 21, 4, -9, -12, -37, -53, -5, -47, 14, 35, 33, -2, 28, 21, 8, -27, 13, -11, -20, 28, 19, -37, -22, -18, 14, -44, -1, 33, -23, -24, 27, -32, 27, 19, -1, 0, -50, -28, 22, -15, 63, 47, -49, -21, 9, 0, 23, -40, -8, 3, -6, -14, 28, -15, -59, 11, -55, -35, 2, -15, 22, 12, -50, 4, 70, 3, -22, -45, -9, -2, -8, -22, -32, -49, 0, -4, 25, -2, -3, -6, -12, -18, -26, 0, -14, 5, -47, 12, 28, -5, -19, -32, -40, -21, 11, 1, -10, -15, 9, 22, -5, -25, -58, 53, 9, 9, -34, 15, -4, -4, -21, 23, 16, 3, -6, 40, -11, 38, -23, -41, 21, 36, 31, -10, -37, -3, 10, -28, 58, 43, -1, -1, 46, -9, 60, 7, -14, 18, 0, 23, -2, 21, -22, 23, 3, 3, -5, 34, 5, -37, -21, 27, 35, -5, 21, -1, -33, -34, 19, -6, 7, -29, -33, -12, 50, 7, 7, -12, -8, 3, -14, -45, -1, -30, -7, 0, 7, -11, 6, 18, -25, 83, 13, -1, 23, 35, -33, -56, 71, 13, -8, -31, 8, -6, -10, 45, 13, 21, -12, -3, 19, -31, 25, -45, -51, 29, -32, 24, 5, 19, -48, 9, 14, -39, 11, -50, 10, 56, 37, 19, 2, 11, -4, 34, -20, 6, 27, 19, 59 ]
Moore, J. The village of Sand Lake is located in Nelson township on the north line of the county of Kent; the north line of the village being the county line. The county north of the village is Montcalm county. The business street of the village runs, east and west. It is the claim of complainants that the surface water of the north side of this street for a block west of Fourth street for more'than 30 years found its way east to Fourth street; then nearly north on Fourth street for approximately a block and a half; then east under the tracks of the Grand Rapids & Indiana Railroad; then across Third street, and across lots 5, 4, 3, 2, and 1 of block 1, which belongs to complainant Giddings; thence east across First street until it came to a small piece of land on the east side of First street belonging to defendants;. thence turning north through a ravine on this land; thence across the county line road to a tract of land owned by defendants; thence north through the lands of defendants in a ravine which extended to Round Lake. It was the further claim that it was only after a hard rain or in the spring and fall that water was found in the ravine north of the county line road. It is the claim of the complainants that the route indicated was the route of the surface water in a state of nature, and that, as Fourth street, Third street, First street, and the county line road were opened, the ravine was first bridged, and later crock tiles were put in to permit the passage of the water, and that for the same purpose an opening was left under the railroad when it was constructed. The testimony indicates that the village of Sand Lake has not grown very much for a long time. It is also the claim that the surface water from the south side of Lake street and that part of the village south thereof found its way south and east into a county drain. In 1907 the defendants bought a small piece of land in the village east of First street, and south and adjoining the county line road, and a much larger piece north of the county line and extending from the county line to Round Lake. In the same year they purchased the land they commenced the erection of a house on the bluff a few rods away from the lake, and it is claimed they have invested, including the value of their work, about $4,000. Shortly before the bill of complaint in this case was filed, defendants drew 15 or 20 loads of earth and dumped it into and across the ravine on their land in the village just adjoining First street. This made a dam, variously estimated as 1% to 2% feet high. On the west part of Mr. Giddings’ land there was a low place where the water sometimes stood, and especially during the winter season, so that persons so inclined could skate thereon. This depression is called by some of the witnesses, and by counsel for defendants, Giddings pond. Just west of the railroad opposite Mr. Giddings’ land Mr. Blanchard owned land which was low, and at times water would stand there. It was the claim of complainants that, as the result of the action of the defendants, the surface water was backed upon and across the Giddings land, upon and across Third street, upon and across the railroad right of way, upon and across Fourth street, and upon the low land of Mr. Blanchard, and became stagnant water and a menace to the health of the citizens of the village. It was the claim of the defendants that by reason of putting in cement gutters on Lake street, the building of some new buildings, deepening ditches and putting in crock tiles that more water came to them than would naturally come, and that the water had become polluted so as to -make a stench in and about their house near Round Lake, and that the conditions were so bad that Mrs. Allen became ill, and that they were justified in doing what they did. The complainants denied that the volume of water had increased, and denied that it had become polluted, and insist that, if there was any stench about the house of defendant, it could be accounted for in another and much more reasonable way. The case was heard in open court. After the hearing had been in progress some time, the trial judge suggested to counsel: “Now, there is no question about the fact that at least from the point of intersection between Lake street and Fourth street the general lay of.the land is toward the northeast, and that the natural course of the water reaching that point at least would be in the direction indicated. That is not the question, though. Assuming that that is the natural lay of the land, the real question involved here is, under the answer and the claims made by the defendants, as to whether anything more than water is permitted to go down over the land of the defendants, detrimental to public health, or to the health of the defendants; in other words, whether the servient estate is bound to receive anything more from the dominant estate than nature places upon the dominant estate in the way of water.' The general rule is, as we all know, that water arising upon a dominant or upper estate can pass over the servient or lower estate, and that this right is an easement so denominated in the law. But it is also equally well settled that the dominant estate cannot add to this easement or right; that is, cannot claim a privilege additional to the natural right to have the water from the upper flow down over and across the lower estate. So the question here is as to whether the claims of the defendants, are true. Has there been anything added to this flow which does not by nature, or did not by nature, exist? If any filth or additional water from whatever source is permitted to flow into this natural course and down and upon the defendants’ land, that ends it. If all that goes from this village down onto this land is that which by nature should be permitted to go there, that also ends it. . Now, that is the issue, and the sole issue, in this case. It would be strange that any other rule could be tolerated or permitted; in fact, it is not in the law permitted. * * * I speak now because I know that you are, as well as I, anxious to complete this case, and that is the only issue involved. If the complainants can show to the court that the water which is permitted to run down over the defendants’ land is water which naturally rises upon a dominant estate, and runs down there in an unpolluted state, they can recover; they are entitled to a permanent injunction to restrain the defendant from interfering with the natural progress of the water.” “On the other hand, if the defendant satisfies the court that the water thrown down on their estate is not in the natural state, but is polluted, and that additional water is permitted to flow down which does not arrive in a natural state, why, the defendants must prevail. Now, that is the law and all that is involved in this case.” “Mr. Herman: The court does not expect the complainant to prove that the water was polluted? “The Court: No; I expect you to prove it was not, and that is why I suggested the burden is upon you to show it was not.” After this suggestion was made the hearing continued at great length, and the court granted the injunctive relief prayed for in the bill of complaint. The case comes here by appeal. The law which should control in a dispute of this nature is not in doubt in this State. Some of the cases in which it is declared are: Fox v. Holcomb, 32 Mich. 494; Upjohn v. Richmond, 46 Mich. 542 (9 N. W. 845, 41 Am. Rep. 178); People v. Hulbert, 131 Mich. 156 (91 N. W. 211, 64 L. R. A. 265, 100 Am. St. Rep. 588); Tower v. Township of Somerset, 143 Mich. 195 (106 N. W. 874); Phillips v. Armada, 155 Mich. 260, 263 (118 N. W. 941); Smith v. Barrett, 159 Mich. 325 (123 N. W. 1091); Village of Trenton v. Rucker, 162 Mich. 19 (127 N. W. 39, 34 L. R. A. [N. S.] 569); Wyoming Township v. City of Grand Rapids, 175 Mich. 503 (141 N. W. 890). The question involved is one of fact. Counsel for the appellant in their oral arguments, and in their printed briefs, were and are so earnest in their contention that a great injustice was done their clients by the decree in the court below, that we have read with great care all the evidence contained in the very voluminous record before us. We have not overlooked what is claimed by counsel for the analysis of three samples of water by the State bacteriologist, sent to him by the defendants. This analysis would have much more value for the defendants if the water had been taken from their premises, instead of through a hole in the ice in Giddings pond, and from a pool in Fourth street, and the so-called Blanchard pond, all of which were 40 or 50 rods away from the residence of defendants. The following, taken from the letter accompanying the analysis, is illuminating: “These three samples were brought to the laboratory by Mr. Henkel, who claimed that they represented wastes that the city was discharging into a lake. The question was whether or not this material would dangerously contaminate the water. We informed him that this question could not be answered without a thorough inspection of the local conditions as much would depend upon the amount of discharge and size, as well as other conditions.” We have also given due heed to the argument of counsel about the changed conditions caused by the construction of the cement gutter on Lake street, the construction of the four-flat building, and the conditions in the meat market. A careful reading of the record does not sustain the inferences of counsel. A large number of witnesses were sworn. Some of the testimony is in conflict. Some of it is not true. A careful reading of all of it satisfies us not only that defendants have failed to establish their defense, but that complainants have met the onus put upon them by the chancellor. In reaching this conclusion we do not need to invoke the rule that the chancellor has an advantage over this court because he sees and hears the witnesses. The decree is affirmed, with costs. Brooke, C. J., and McAlvay, Kuhn, Stone, Ostrander, Bird, and Steere, JJ., concurred.
[ -13, 80, 3, -46, -36, 49, 60, -3, -13, 29, -15, -20, 14, -1, 9, -4, -53, 11, -15, -4, 0, -23, 45, -20, -20, 2, -7, 34, -73, -13, -3, 24, -21, 4, 30, -10, 1, -36, 28, -25, -48, 10, 5, -17, 35, -5, 20, 7, 16, -27, 43, 1, 14, -9, -5, -12, -32, -50, -20, -14, -44, -22, -21, 5, 28, 30, 9, 11, 46, -21, -53, -3, 29, -21, 59, 32, -19, 28, -64, 3, -28, -1, 53, 30, -35, -15, -11, 4, 0, 45, -26, -28, -28, 32, 67, 8, 18, -8, 4, -17, -26, 77, 0, -15, -27, -1, -37, 7, 16, 3, -15, -18, 26, -23, -28, -32, 50, -18, 90, -3, -21, -43, 18, -5, -31, 6, -23, 37, -17, -35, -17, -36, 13, 14, 6, 6, -27, -29, 6, 16, -32, 43, 4, -36, -6, 18, -34, 8, 19, -18, -71, -19, 92, 17, 41, 26, 33, -34, 36, -29, 30, 0, 12, -20, -63, -28, 39, 26, -35, 0, 45, -11, 20, 13, -9, 13, -16, -13, -9, 36, 42, 22, 45, 2, -12, 4, 16, -12, -15, -3, 23, -8, 20, -58, -19, 25, -36, -12, -36, -42, 10, -66, -9, -36, -12, -16, 10, 4, -6, 40, 38, -1, -26, -23, 6, 28, -26, 0, 31, -17, 22, 48, -33, 58, -75, -24, 19, 0, 0, -29, 0, -34, -25, 13, -29, -24, 33, 26, -22, 45, -4, -8, -5, 3, -10, 31, -12, -46, -39, 49, -30, -5, -63, -18, -20, 5, 20, -4, 1, -42, 25, 32, -12, 30, -37, 5, -46, -15, -37, 23, -43, 21, 35, -29, -52, -5, 60, -5, 11, 59, 11, -70, 29, -3, 34, 26, -29, 11, 11, -26, -10, 16, -8, 22, 5, 5, 56, -56, 23, -44, -43, 13, -59, -35, 61, -10, -35, 52, 64, 30, 14, 43, 27, 7, -7, 29, 12, -6, 73, 0, 26, 43, -44, 3, -23, 62, -4, -22, -28, 24, -25, 1, 16, 24, 6, 8, 10, -32, 15, -14, 23, 17, 37, 7, 9, 7, -25, 29, 26, -11, 5, -34, 14, 23, -27, 6, -23, -26, -2, 25, 21, -40, -16, -31, 31, -26, -3, -12, -6, 36, -8, 2, 19, 64, 41, -28, 7, 24, -62, 27, 9, 11, 32, 64, 25, -18, 1, -13, -17, 39, -31, -24, -24, 44, -1, -49, -53, -25, -44, -46, -32, 13, 34, 46, -37, 10, 29, 4, 29, 0, 38, -48, 20, -37, 6, -15, 40, -5, -10, 45, 26, 38, -8, -72, 12, 22, 19, 5, 57, 0, -21, 68, -12, -23, 55, 0, -69, 4, -19, -55, -42, 40, 66, -25, -21, -60, -52, 17, 3, -62, -16, 65, -39, 20, 9, 35, 9, -6, 59, -30, -32, -3, 35, 12, -16, 10, -74, 34, -24, 55, -13, 79, -7, -62, -12, -30, 52, 19, 61, -18, 30, -9, -56, -2, -5, -59, 20, 29, 25, -47, 47, -42, -43, 31, 38, 17, -3, -20, 24, 10, 12, -6, -19, -41, -30, 56, 14, 20, -16, -12, 7, -19, -9, -9, 17, 35, 32, -39, -23, 7, -38, 48, 41, -27, 32, 60, 44, -24, 33, -2, 4, -10, -48, 11, -15, -51, -9, 32, -38, 3, 39, 0, 6, -13, 12, -17, -23, -38, 17, 0, -18, 6, -34, -31, 3, 22, -7, -39, 0, -2, -62, 16, 27, -51, 64, -8, 21, -55, -17, -17, -17, 10, 24, -83, -28, 20, -60, -28, -6, 62, -46, -32, -40, -17, -18, 26, 41, 5, -22, 25, -32, 12, -52, 10, 11, 15, 4, 13, 58, -42, 53, -21, -17, 3, -1, 4, -66, 7, 17, 10, -19, -46, 9, 67, 41, 13, 23, 0, 21, -20, -39, -1, 34, 11, -11, -5, -24, -13, -42, 23, -66, -1, -39, 10, 76, -15, 27, 46, 8, 40, -10, -24, -19, -43, -27, 0, -54, 19, -44, 33, -39, 25, 26, -30, -3, -6, 38, -3, 21, 24, 47, -2, -5, 12, -23, -12, 12, 26, 57, -21, -1, -57, -14, 2, -57, -49, 2, 43, 13, 62, 75, 52, -8, -42, 30, -33, 34, 27, -4, -5, -21, -8, -52, 66, 0, -27, -20, -9, -29, -39, 11, 16, 18, 12, -19, 37, 19, -36, -2, -11, -30, 11, 21, 21, 7, 55, -74, 1, 22, 38, -16, -44, -29, -25, 5, -28, -27, -10, -38, 60, 5, 57, -3, -4, -25, -10, 6, 25, -25, 19, 20, -88, -72, -6, 4, 19, 56, -2, -28, -13, -28, -4, -39, 22, 42, -32, 8, 84, -51, -8, 39, -4, 43, -8, 2, -32, -2, -14, 0, 35, -5, 63, -22, -8, -1, -18, -25, 23, -8, 14, 12, -50, -3, -6, -16, -26, -8, -21, 0, -14, -7, -4, 7, -14, -5, -2, 66, -3, 5, -11, -1, 27, -63, 8, -25, -19, -38, 13, 14, 16, 17, 52, 9, -28, 26, -18, 14, 75, 4, 13, -6, 0, 15, -66, -11, -14, 27, 19, -36, -21, 38, 36, 2, 6, 29, -40, 29, 26, 9, 18, 6, -13, 9, -48, -18, -38, 11, 15, 43, 16, -27, -4, 2, -13, -17, 37, 7, 7, 2, -7, 56, -26, -38, 30, -64, 9, 3, -36, -29, -29, 5, -22, 4, 51, -18, -16, -13, -17, -50, -50, -44, -16, 76, -10, -49, 23, 20, 13, 17, 56, -1, 13, 12, -9, 1, -1, -38, -14, -49, -22, 21, 21, 25, 20, -31, -51, -9, 12, 7, 21, -48, -4, -44, -31, -34, -98, -31, -37, 1, 37, 42, 0, 18, 38, -55, 35, -54, 20, -27, 48, -52, -20, -44, 11, 32, 43, 38, -64, -2, 33, 26, 0, -3, -12, -33, -25, -13, 17, -8, 41, 30, -26, 33, 71, -25, -8, -72, 14, 36, 5, 32, -21, 54, -3, -20, -51, -32, 21, 29, -12, -21, -21, 41, 41, 13, 14, 7, 53, 72, 24, 15, -53, 51, -9, 29, 7, 9, -37, -29, 15, 0, 6, 25, -19, -16, -36, -68, -48, -45, -34, 36, 28, 26, 13, 54, 10, 37, -19, 53, -30, -33, 5, 83, 2, 7, 49, 33, -15, 1, -18, -21, 5, -54, 28 ]
Ostrander, J. (after stating the facts). Defendant Shelden’s duty in the premises was not other or different from the duty which Mr. Hudson would have owed, had he, instead of Shelden, demolished the barn. The east half of the large barn, as well as the shed which fell, was on Mr. Hudson’s land, of which his tenant had possession. Suppose that Hudson had done the work. Between himself and his tenant contract relations existed; otherwise, Hudson could have done as he pleased with his own. For mere breach of any contract relation with the tenant, plaintiff cannot complain. If demolition of the shed had amounted to an eviction of his tenant, the remedy would belong to the tenant, whether what Hudson did was called a trespass or something else. Therefore I do not perceive the applicability to the case of decisions, many of which are cited in appellant’s brief, upholding the right of the tenant to damages for injuries to leased premises caused by the landlord or the licensee of the landlord or the tenant. Barman v. Spencer (Ind.) (49 N. E. 9, 44 L. R. A. 815), and Aldag v. Ott, 28 Ind. App. 542 (63 N. E. 480), also cited by appellant, belong to a line of cases in which decision rests upon a different principle. In each of them liability was predicated of an affirmative act of the landlord, who created upon the premises a dangerous situation— dangerous for any one who went upon the premises. After quoting from Aldag v. Ott, supra, the attorney for the appellant says that the same principle was applied in Peerless Manfg. Co. v. Bagley, 126 Mich. 225 (85 N. W. 568, 53 L. R. A. 285, 86 Am. St. Rep. 537), when it will be at once apparent, the decisions being examined, that an entirely different principle was applied. There is another line of decisions, of which Corby v. Hill, 4 C. B. (N. S.) 556, Crane Elevator Co. v. Lippert, 63 Fed. 942 (11 C. C. A. 521), and Ella v. Boyce, 112 Mich. 552 (70 N. W. 1106), are examples, which are relied upon by appellant, which differ little, if any, in principle, from Barman v. Spencer, and Aldag v. Ott, but which also decide that one having a license to do something upon the premises of another may not, as licensee, do what the licensor himself had no right to do. In each of them, the person who created the nuisance was the defendant, and was held liable to the one who was injured. The principle applied in Corby v. Hill, supra, is thus stated by Cockburn, C. J., who said: "It seems to me that the very case from which the learned counsel seeks to distinguish this is the case now before us. The proprietors of the soil held out an allurement whereby the plaintiff was induced to come upon the place in question: they held out this road to all persons having occasion to proceed to the asylum as the means of access thereto. * * * Having, so to speak, dedicated the way to such of the general public as might have occasion to use it for that purpose, and having held it out as a safe and convenient mode of access to the establishment, without any reservation, it was not competent for them to place thereon any obstruction calculated to render the road unsafe, and likely to cause injury to those persons to whom they held it out as a way along which they might safely go. If that be so, a third person could not acquire the right to do so under their license or permission.” See, also, Morrison v. Carpenter, 179 Mich. 207 (146 N. W. 106), in which is applied the familiar rule that, having licensed one to use premises, the owner and licensor cannot thereafter, while the license con tinues, make the premises used by the licensee more dangerous to the user. Bennett v. Railroad Co., 102 U. S. 577. In the case at bar there are no facts raising a duty on the part of Shelden (or Hudson) to Girardin, or to his servant, the plaintiff, to support the roof of the shed. Nothing was done not presumably contemplated by Hudson, Shelden, Girardin, and any and every one else who knew anything about the situation there. If the large barn was demolished, it would remove to that extent the westerly support for the shed which fell. Shelden did not know what Hudson or his tenant would thereafter do with the shed— whether it would be removed or repaired. Hudson and his tenant had not discussed the matter. Assuming that, nevertheless, Shelden having been the active agent in creating the situation, a duty would arise upon his part to discover that situation to any one rightfully using the premises, no breach of such a duty is made out. The condition remaining after the barn was removed was apparent, to plaintiff as well as to any one else who looked at the shed. The shed was not for use, nor was it contemplated by any one that it would be used, as it stood. Whatever of value it had contained had been removed to the tenant’s, and presumably to the owner’s, satisfaction. No trap was set for plaintiff, nor was he deceived or deluded by anything Shelden had done, or failed to do. Nothing could have been told him which his vision did not disclose to him. The principle, therefore, of the cases last mentioned, has no application. Plaintiff was most unfortunate, but it must be held that his injuries resulted from no breach of duty owed to him by Shelden. It is not necessary to discuss the questions of variance, of plaintiff’s assumption of whatever risk there was, or of his contributory negligence. If the testimony of the tenant is believed, plaintiff was told to keep away from the particular portion of the premises. If the testimony of others is believed, plaintiff’s own conduct, after being warned, in using a crowbar under the shed, may have caused the roof to fall upon him. The judgment is affirmed. Brooke, C. J., and McAlvay, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.
[ -38, -17, 9, -34, -32, -19, 10, 36, 5, 48, 7, -6, 25, -37, 41, -23, -34, 29, -97, 32, 33, -55, -42, 10, 34, -44, 25, -46, -5, 50, 32, -22, -38, 25, -26, 39, -22, 7, 14, -6, 54, 0, 63, -102, 44, -15, 28, -3, 43, -37, 4, -15, 40, 5, 39, -7, -15, 69, 2, 47, 4, -29, -56, -32, 44, -16, -17, 16, -2, -35, 4, 37, -29, -43, 0, 4, -11, 82, -16, 0, 17, -37, 0, 20, -43, 0, 19, 49, -31, 4, -24, 26, 7, 24, -53, 46, -14, 50, 0, -10, -30, -11, -8, 20, -58, -6, -27, -31, 5, -56, 0, 39, 20, 2, -10, -1, -1, -10, -45, -10, 49, 12, 40, -39, 1, 6, -14, -2, -42, -5, 22, 24, -35, 22, 14, 20, -23, 18, -21, 0, 13, 15, 9, -23, -36, -14, 15, 0, -16, -29, -13, 47, -35, -31, -40, 26, 19, 2, 1, -11, 49, -24, -43, -20, -10, 4, -36, 63, -31, 53, 40, -14, -13, -24, 73, 3, -4, 14, -8, -17, 3, -4, 3, -13, 11, -13, -7, 17, 2, 15, 11, -23, -42, 12, 14, 1, -26, 87, 0, -44, -31, 16, -6, -31, 9, -13, 28, 20, -19, 18, -40, 10, -59, -23, -29, 13, 1, -11, -5, 19, -10, 21, -68, -42, -51, -69, -27, 9, 28, -33, -20, 11, 38, 25, 33, -44, 28, -5, 32, 31, 35, 51, -50, 8, -13, -72, -8, 21, 29, 34, -5, -9, -15, 45, 1, 2, 6, -9, -56, -24, -13, 18, -8, -1, 39, 13, 6, 11, -26, 29, -17, 27, 20, 10, -48, -23, -36, 13, 13, -47, 31, -4, 16, 16, -28, -8, 41, 26, -45, -23, 3, -55, 0, -15, 13, 13, -9, -46, -29, -24, -11, -41, 19, 16, 52, -28, 12, -8, 13, -41, -70, -19, -15, 3, 29, 5, -25, 31, -25, -38, 25, -14, 20, -20, -20, -29, 39, -45, 1, 4, -4, 3, 3, 58, 25, 27, 28, -20, -17, 2, 37, -7, 55, -106, 31, 43, 2, -25, -10, -19, 13, -1, -31, 18, 13, 11, -1, 32, -27, 22, 53, 23, -28, -23, -23, -44, -13, -23, -9, -10, -8, -27, 25, -12, 5, 24, 7, -22, -45, 46, 43, -31, 5, -56, 34, -34, -42, -58, 5, 39, -42, -17, 45, 12, -4, 22, 28, -18, -41, -26, -20, 16, -23, -5, -29, -19, 34, -79, -38, 6, -19, -20, -1, 11, -14, 46, 34, -15, -2, 27, 45, -27, 24, 22, 18, -13, 2, -37, -57, -4, -11, -16, -29, -2, -13, 5, -43, -21, -49, 2, -58, -11, -15, 22, -18, 80, -4, 20, -6, -34, 0, -23, 31, 40, 45, -12, 20, -12, 8, 1, 51, -28, 8, -6, 25, -65, -41, -70, 44, -6, -18, -22, 41, 41, 22, -12, -21, 40, -55, 19, 9, 0, 49, 29, -21, -32, -43, -1, 11, -15, -17, 39, 30, -25, -24, 6, -8, 39, -16, 53, 23, -11, -6, -20, 58, -28, 25, -5, 64, 67, -17, -15, 40, 68, -3, 17, 3, -56, 16, -2, -5, -65, -25, -40, 2, -11, 0, 11, -6, -41, 55, 3, 25, -11, -4, 0, 41, 8, 5, -72, -1, -5, 11, 8, -8, 39, -15, 27, -37, 6, -59, -1, 28, -2, 20, -44, -76, -6, 11, 42, -16, 34, 27, -2, 55, -37, 20, 18, 17, -2, -12, -20, -15, 0, -69, -32, -5, -22, 11, -40, -24, 26, 17, -14, -12, -26, -10, -35, 62, 29, -6, 10, 40, -29, -54, -50, 20, -7, 9, 78, -6, -54, -56, -25, 10, -11, 17, -13, -10, 12, 34, 3, -6, 0, -24, 46, 31, -10, 54, 14, 3, 10, -42, 7, -13, -3, 34, -20, -31, 20, -72, 15, 12, 1, 1, 48, 39, 1, -37, 1, 15, 17, 9, -14, -4, 49, 3, 9, 39, -27, -28, 37, -30, 5, 36, -3, -22, -16, 18, -43, 31, -9, -10, 54, 32, 13, -33, 0, -39, -16, 62, 42, 49, 72, 18, -14, 4, 17, 4, 14, 38, -71, 26, -39, 33, -10, 21, 6, 47, -33, 5, -54, 59, -22, 23, 22, -14, -1, 20, 7, 9, -26, 64, 13, -26, -20, 13, -29, -20, 18, 16, 30, 0, 22, 13, 10, -23, -15, -62, 23, 31, -33, 4, -47, 23, -19, -6, 0, -28, 10, 2, -47, -41, -6, -62, 9, -17, 19, 4, 1, 6, 4, -13, 15, -59, -6, 65, -21, 29, -6, -8, 19, 17, -61, -35, -16, 7, 0, -63, -6, 36, -34, -10, 12, 15, 1, -11, -68, 35, -50, 11, 31, 4, -53, -7, 69, 42, -31, 4, 29, 4, -57, -21, 34, -31, -10, 9, -40, 26, 30, -3, 2, -9, -16, -11, -48, 21, 66, 23, -18, 47, 3, -19, 0, -8, -15, -16, 20, 9, 2, 44, -31, -37, 0, -7, 11, 8, 72, 20, 51, -35, 46, -20, 0, -12, 2, 25, -32, 20, 24, 51, -60, -50, 28, 26, -21, -28, 48, 0, 0, -16, -37, 36, 76, 21, -43, 23, 12, -1, -11, 2, -25, 56, 35, -4, -3, -20, -11, 51, 19, -15, 1, 14, 52, 32, 11, -13, 71, -8, 42, -1, 24, 38, 18, -20, -15, -50, 20, 9, 20, 14, 19, -51, 32, -35, 17, 19, -27, 36, 35, 64, -23, -12, 57, -26, -5, -11, -43, 13, -60, -22, -1, 31, 35, -7, -12, -32, -15, -4, -10, -1, 17, 7, -10, 0, 44, -41, -10, 41, -6, -37, 28, 18, 3, -39, 25, -23, -21, -9, 5, -75, -52, 2, 26, 23, -49, 57, 11, -4, -30, -3, -46, -27, 62, -7, -13, 14, -25, 16, -27, -43, 113, 2, -15, 13, 1, 4, -4, -52, -1, -21, -19, 19, 6, 3, 18, 74, 9, -43, -32, 10, -28, 16, 11, -7, -31, -9, 13, 6, 35, 0, -34, -25, 47, -34, -13, 2, -7, -80, 10, -53, 3, 32, 59, -53, -7, -21, 25, 25, -40, 39, 9, -34, 15, 53, 1, 58, 64, -6, -78, -53, 12, 27, 38, -16, 9, -24, 38, -14, -9, 18, 20, 4, 26 ]
Moore, J. This is an action brought September 7, 1911, to recover four installments of $375 each, for royalties claimed to be due under a contract dated June 3, 1909. From a judgment in favor of the plaintiff the case is brought here by writ of error. The parts of the contract material to the questions raised are: “Whereas the party of the first part is the inventor and designer, and sole owner, of certain new and useful improvements in electrical welding apparatus, the same being described in his application for U. S. letters patent serial No. 481,172, filed March 5, 1909, and other inventions which, the said party now has and which he may hereafter make, relating to the same subject; and whereas the party of the second part is desirous of obtaining an exclusive license under said inventions and any patents that may be issued therefor in the United States or the Dominion of Canada, for use in the welding of channels, wheel rims or wheel tires. * * * “Third. The party of the first part further agrees to manufacture, sell and deliver to the second party two 50 kw. welding machines, suitable for the welding of channels or wheel rims, such as used in carriage or automobile wheels, at the rate of four hundred per day, of ten hours each; such machines to be of good workmanship and material, and design. * * * “Eighth. In consideration of the license granted and the agreements herein contained on behalf of the first party the second party hereto agrees to accept said two welding machines and to install them for use in its factory at Detroit, Michigan, upon receipt of same, and to employ the same for welding channels or wheel rims. “Ninth. The party of the second part further agrees that it will pay to the party of the first part one thousand dollars each for such first two machines, one-half the purchase price to be paid to the first party as required during the building of the machines, and the balance as soon as the machines are set up and are in working order. “Tenth. The party of the second part further agrees that it will pay to the party of the first part upon all wheel rims or channels which it shall use upon wheels which the second party shall manufacture or have manufactured for it and sell, a royalty of one and one-quarter cent per rim; and upon all rims or channels which the second party shall weld to be sold to other people separate from the wheels, a royalty of three cents per rim. “Eleventh. The party of the second part agrees to account to the party of the first part, its successors or assigns, upon the first day of December, March, June and September, of each year, for all wheel rims or channels which it shall have welded upon said machines, and to accompany such report and statement with a remittance covering the royalties due at the rate specified; and the said second party agrees that the said royalty shall amount to at least three hundred and seventy-five dollars for each quarterly payment, up to September 1st, 1913. “Twelfth. It is mutually agreed between the parties hereto that the second party may cancel this contract any time after September 1st, 1913; or prior to that date, in the event that the machines furnished shall fail to perform their work or in the event that the use of said machines is stopped because of patent litigation, or in the event that a patent is refused to the first party upon the said application serial No. 481,172 herein referred to.” Some controversy arose between the parties as to the breakdowns of the machines interfering with the quantity of the work they could do, when the following paper was made: “Detroit, Mich. U. S. A. Jan. 3, 1910. “K. H. Wheel Company, “Detroit, Mich. “Gentlemen: “I beg to advise that I have made some improvements on the mechanical parts for welding machines for welding rims and I am willing to furnish you with two improved machines and take back the two machines you now have without any expense to you, providing that I may draw against royalties due between now and March 1st. “I will guarantee these machines to be of good workmanship and design and will replace free of charge any part in said machines that proves defective. Will use transformer now in machines and guarantee capacity as per agreement. “Yours very truly, “R. F. Agnew. “Accepted. “Ford Lawrence. “Wm. H. Ducharme.” It is the claim of the plaintiff that he made certain changes in the machines, supplying new parts, which met the requirements mentioned in the paper of January 3, 1910, and that thereafter he never heard any complaint about the. manner in which the machines did their work. He was paid royalties up to June, 1909, according to the terms of the contract. It is plaintiff’s claim that when he interviewed the secretary of the company, who had charge of the office work, as to why the royalties were not paid after June, 1910, he was told, in substance, that the royalties due had not been checked up, and that he would proceed to check them up and ascertain the amount due, and that he was again told this at the office, and again over the telephone as late as in September. It is plaintiff’s claim nothing was said indicating that defendant claimed the contract was ended, and that no effort has ever been made to terminate the contract in the manner provided therein. The royalties were not paid, and this litigation followed, with the result before stated. The court charged the jury at great length. Part of the charge is as follows: “Gentlemen of the jury, the contract is plain in its terms, and it means exactly what it says, and whether the plaintiff understood it or misunderstood it, or whether the defendant correctly understood it or misunderstood it, that contract provided for the furnishing, among other things, of two new machines, and if there had been litigation then, at that time, over its terms, there would have been no case, but the plaintiff would have been bound, under the terms of the contract, to furnish two new machines, containing all the new improvements; but they went along and finally they reached the 1st day of March. “This contract provided for the payment of royalties up to the 1st day of March, and they were paid, and apparently paid promptly, and, needing the machines and needing the work, the defendant went on using the old machines. The old machines belonged to the defendant all the time, and the plaintiff had no property rights in them whatsoever; the defendant had bought them and paid for them, but the defendant had no right to use them, except by reason of the provisions contained in the original contract, known as Exhibit 1. There the parties separated in their belief, so they say. Whether there was a real, or just an apparent, misunderstanding would be, in a measure, for you to say. The plaintiff claims that he believed and assumed that he had performed his contract when he repaired the machine by putting on a new head, or doing something else, to the other machine, and his theory is now that, as those machines were used, they must have been used understandingly and knowingly by the defendant under the terms of Exhibit 1, and that they were used from the 1st of March to the 1st of June, and royalties were paid, and it is too late for the defendant to claim that there was any other understanding of the terms of the contract than the one alleged now by the plaintiff. The de fendant’s claim in that regard is this, that all the time it was waiting, thinking that they had been putting in these repairs to tide them over the time until the new machines would appear, and that they continued using the old machines with that understanding, relying upon the new contract to furnish two new machines, and their claim is that those two new machines were not forthcoming, and were not given to the defendant by the 1st day of June, and that it discontinued the payment of royalties and stopped using the machines and put them in storage, and that they have not used them since, and are under no obligations to pay for the use of them by reason of the failure of the plaintiff to perform his part of the contract of the 3d day of January. * * * “Now the old contract, which is still in existence and which is a contract entire, stands by itself, except as modified by the undertaking of the plaintiff in the writing of January 3d, provided for a method in which this contract could be terminated. It could have been terminated at any time by the defendant upon notice to the plaintiff that the machines were not doing their duty properly, or were not up to the specifications, promises, assurances, and warranties of the plaintiff himself. The claim of the plaintiff is that at no time has it received any notice from the defendant of its desire to terminate the contract, and that therefore the plaintiff had his property tied up in a way that he could not sell or dispose of the right to use similar machines to any one else, and that is his claim, and his claim is that he had a right to assume that, as he never received notice from the defendant of the termination of the contract for reasons that would be good reasons under the contract for its termination, and that therefore he had a legal right to assume that the contract was in full force and legal effect. The defendant, on the other hand, claims this with regard to the plaintiff’s claim, that, at the interview either on the 3d day of January or the date preceding it, notice was given by the defendant’s president to the plaintiff that they had quit, or used words of similar import, which the defendant claims meant that the contract was terminated, and terminated for reasons which would be sufficient under the terms of the contract, and that the new contract entered into the following day or the same day, after an interview, was a new contract on the part of the plaintiff, and that, the plaintiff having failed to provide the new machines, the defendant is released. I cannot say, as a matter of law, that either one of those claims, is sustained by the proofs because the question of waiver in a large degree is one for the jury where there is any testimony tending to show or support a claim of waiver, and the jury must determine what the intent of the parties was. * * * If there was a waiver, then I charge and instruct you, as matter of law, that the plaintiff is entitled to recover, because there is no showing that subsequent to the time of entering into this contract there was ever notice served directly on the plaintiff of the termination of the contract, and the only evidence that is urged as to notice is the question of the stoppage of the payment of the royalties, and that, gentlemen of the jury, may be considered as evidence, but not as conclusive evidence of it, because sometimes persons under obligations to pay royalties are unable, by reason of certain financial things that happen to them, are unable to pay, or they may be unable to pay for certain, other reasons, but nonpayment in and by itself is not to be taken as conclusive evidence that the termination of the contract is sought by the parties bound by it. _ “On the other hand, if you find that the defendant did not, either by declaration or by words, indicate to the plaintiff that it waived the right to have two new machines given to it as provided for by the contract of January 3d, then the plaintiff is not entitled to recover because he has not, in such an event, fulfilled his part of the contract, and the defendant would no longer be bound by the terms of either that contract or the general contract known here as Exhibit 1; so your verdict will be determined by your finding as to whether or not there was a waiver such as I have spoken of that would relieve the plaintiff of the obligation to furnish the two new machines that he was bound to furnish under that contract. “If you find that there was such a waiver, then, gentlemen of the jury, the plaintiff is entitled to recover for such sums as are provided for as royalties in the contract up to the time of the commencement of this suit, but no further. I charge you that distinctly, so that it may be of record that recovery is permitted only up to the time of the commencement of this suit. The plaintiff alleges that the sum totals now $1,746, including interest, $1,500 being the amount of the principal that plaintiff claims, and interest, at the rate of 5 per cent, from the time the payments were due up to date, $247. The form of your verdict will be that you find for the plaintiff in the sum mentioned, or that you find for the defendant no cause for action. “I have not had opportunity to read the various requests to charge, as they were handed up so late. I charge you that the plaintiff did not perform his agreement of January 3, 1910. That is conceded by all the parties, and the burden of proof is upon the plaintiff to show that the defendant waived his performance of that agreement. The evidence of the waiver by the defendant of plaintiff’s performance of his agreement of January 3, 1910, ought to be full and distinct before it should be received as satisfactory to you, because the agreement which is in writing ought not to be treated as waived by the defendant, unless there is full and proper proof of such waiver.” The counsel for appellant discusses the important questions under the following heads: “The court erred in not directing a verdict for the defendant: “(1) Because there was no evidence for the jury tending to show that defendant waived performance, by plaintiff, of the contract. “(2) Because it appeared by undisputed evidence that plaintiff had breached the warranties contained in his second agreement. “(3) Because plaintiff breached his contract by not informing defendant of the rejection of his application for a United States patent. “(4) Because plaintiff breached his contract by assigning to the Agnew, now Michigan, Electric Welding Company, his invention and application for a patent, subject to the contract with defendant, whereby he lost control of the application.” Each of these propositions is discussed at great length. The first and second of them may be considered together. In doing so it should not be forgotten that defendant had been given the exclusive license to put out rims under plaintiff’s invention. The contract also in terms provided how defendant might terminate it. It did not provide that Mr. Agnew might terminate it. It follows that until defendant terminated it, Mr. Agnew could not license some one else to make the rims. We have also stated the claim of plaintiff as to the conduct of the parties after the second contract was made, and there is testimony tending to sustain this claim. The court has said: “A waiver is a mixed question of law and fact, and each case must necessarily depend much upon its own peculiar circumstances and surroundings. It is a question for the court to determine whether there is any evidence tending to show a waiver; but, when there is any evidence, the jury must determine what the intent of the party was, as the question of waiver is usually one of intent, as indicated by the acts and declarations of the party.” Griswold v. City of Ludington, 116 Mich. 401 (74 N. W. 663). The record does not show an attempt to terminate the contract in the manner therein provided. See Skinner v. Machine Co., 140 N. Y. 217 (35 N. E. 491, 37 Am. St. Rep. 540); Hurd v. Gere, 27 App. Div. 625, 50 N. Y. Supp. 235. We think there was an abundance of testimony to justify the court in refusing to direct a verdict. 3. It is said the plaintiff breached his contract by not informing defendant of the rejection of his application for a United States patent. It is one answer to this to say that Canadian patents have been granted, and that patent proceedings were pending in the United States at the time of the trial, and defendant had not elected to terminate the contract as provided by its terms. 4. It is said plaintiff breached his contract by assigning the invention and application. The assignment was made to a company in which Mr. Agnew was a stockholder, and by its terms the rights of the defendant company were carefully protected. Judgment is affirmed. Brooke, C. J., and McAlvay, Kuhn, Stone, Ostrander, Bird, and Steere, JJ., concurred.
[ 37, 15, -41, 23, 21, 34, 20, -60, 43, 28, 4, 16, 31, -42, -1, 10, 53, -29, -25, 15, 22, -41, -22, -63, -26, 56, 3, -23, -16, 35, -48, -2, -20, -23, -37, -29, 1, 25, 25, -45, -27, 12, -14, 16, 1, 4, 33, -5, 79, -19, 12, -9, 27, -18, 2, -13, -25, -6, -92, -26, -2, -12, 58, 18, -6, -44, 21, 18, -29, 17, -17, 4, -5, -29, -12, -53, 42, 2, -41, -45, 2, 18, -18, -16, -20, 68, -27, -31, -27, -49, -19, -13, -20, 62, -7, -28, -28, -17, -11, 20, 14, 28, -50, -8, 12, -31, -56, -12, 27, 50, 17, 25, 4, 2, 37, -12, 3, 10, 28, -7, -59, 7, -28, 30, -24, -14, -8, -70, 24, 56, 15, -4, -7, 22, -17, 4, 24, 66, 26, 6, -2, 4, 7, 29, -10, 37, -11, -2, -27, -58, -5, -37, 34, 23, 9, -34, -7, 8, 75, 11, 38, 6, 57, 1, -31, 4, -5, -14, 4, -17, -15, -7, -8, -29, 38, 26, 14, 0, -34, -42, -1, -1, 4, -2, -10, -12, 13, 31, 77, 5, 45, -5, -47, -10, -61, -2, 21, -23, -4, -45, 30, -26, 5, -10, 2, 12, -4, 27, -14, 13, -12, 25, 14, -23, -26, 90, 7, -27, 2, -12, 15, -32, -4, 28, -20, -32, -26, 11, 26, -29, -64, 35, 34, -8, 40, -17, -5, -1, 9, -17, -43, -44, -34, -16, 9, -45, -48, -28, 43, 3, -14, 61, -58, -24, -3, -24, -10, 45, 11, -15, 8, 92, -52, -15, 38, -1, 10, -5, -12, 56, -76, -62, 15, 28, -53, -29, 4, 48, 21, 41, 53, -39, -31, 5, 7, 13, -26, 16, -28, -13, 13, 2, 44, -22, 11, 62, 31, -24, -1, 30, -22, -37, -36, -53, 54, -17, -24, -48, -4, -5, -108, -4, 13, 24, 6, -17, 25, 21, 27, -15, 3, 78, -27, -20, -2, 8, 7, -25, -15, 8, -10, 37, 19, -30, -65, -26, 44, 0, -25, 11, 46, 56, 28, 11, -13, 9, 69, -60, 34, -25, -17, -43, -7, 19, 29, 48, 38, -24, -31, 51, 23, 17, 5, 17, 7, 0, -2, 5, -18, 28, -23, 3, -25, -19, 35, -24, 29, 24, -37, 55, -34, 4, 3, -27, 36, -21, 7, -4, -49, -54, -34, -8, -16, -2, 44, 0, -2, -65, -29, -53, 19, 37, -4, -52, -58, -71, 22, 30, 3, -7, -12, -9, -4, 28, -13, -34, 10, -14, -13, -10, 22, -6, -32, -13, 32, -6, 56, -42, -47, 32, -7, 25, 31, -31, 20, -57, -51, 19, 0, 0, -16, 32, -48, 29, 40, -5, 4, 12, -9, -22, 31, 33, -10, 50, -16, -7, 10, 49, 28, 35, -71, 4, 83, -37, -63, 2, 54, -10, -15, 28, -14, 54, 20, -33, -26, 5, 38, -11, -4, -12, -46, 37, -17, -9, -21, -22, -50, 56, -12, -23, 18, 5, -19, -24, -26, 10, -29, 10, 14, 35, -40, -17, 10, 26, -22, -4, 49, -10, 23, 14, -33, -18, -8, -25, 47, 59, 17, 17, -19, 19, -24, 7, -27, 56, -5, 11, 12, 1, -5, -12, 33, -33, 30, -28, -44, -57, 36, 2, -43, -6, 2, 24, -7, 47, -12, -6, -23, -15, 7, 27, -12, -25, 33, 31, 29, 80, 26, 16, -31, -28, -23, -12, 0, -26, 33, 34, -15, -13, 16, -1, -55, 39, 71, 18, -21, 8, -22, -8, -12, -29, -7, 3, -11, -58, -8, -24, 16, 44, 4, -17, -27, 10, 32, 4, 0, 20, 36, 53, 8, 7, 3, -10, -41, -21, -29, -8, -29, 35, 4, -18, -6, -11, 11, -38, 46, -7, -17, -10, 35, -26, -16, -8, -33, 30, -10, 43, -25, -36, -19, 11, -23, 15, -73, 4, -19, 7, -7, 15, -23, 48, 16, 16, -7, -41, -7, -57, -50, -2, -39, 0, 26, -25, 48, 27, -5, 16, 65, -21, -17, 15, 5, -57, 12, 6, 12, 17, 0, 16, -27, -20, 17, 8, 72, -44, 11, -12, 1, 30, 14, 12, 34, 0, 32, -43, 3, 6, 17, -27, -14, -3, -6, 53, -4, -22, -7, 21, 32, -2, 7, -42, 12, -48, -6, 92, -20, 27, -32, 35, 46, -18, 18, 23, 37, 5, 7, 35, 30, -7, -13, -94, 50, -24, 26, 14, -10, 36, -14, 36, -76, -18, 8, 2, 16, -40, 17, 27, -14, -40, -38, -29, 25, 28, -20, 35, 15, -14, 12, 14, -34, 17, -61, 15, 23, -7, 36, -23, 6, -1, 0, 17, -26, -17, 51, -40, 4, 3, -6, -35, 51, -13, -14, 4, -23, 20, 14, 34, -24, 12, 42, -13, 28, 4, -13, 25, -18, -65, 20, 26, 32, 24, 34, 0, 32, 40, -34, -9, 8, 15, -28, -50, -5, -33, -33, 19, -16, -77, 64, 17, 17, -20, -30, 15, -8, -51, 0, -14, -23, -20, -9, 10, 1, 7, -53, 13, 7, -26, -14, 27, -32, 0, 57, -11, 7, 32, 35, 27, 33, -42, -1, 4, -46, -26, 5, 26, 11, 22, -83, 64, -45, 17, -22, 2, -30, -3, -1, 8, -17, 0, 25, 21, 13, -23, -45, 27, 16, -27, -51, 9, 2, -44, 4, 23, -14, -26, 6, -8, -19, -25, 66, 39, 7, -25, -21, 9, -2, 4, 3, -36, -20, 53, -8, -73, 32, 3, 22, -22, 22, -31, 37, -24, 47, 20, 67, 31, 33, 37, -3, -20, 20, -26, 50, -19, -33, 7, -75, -14, 18, 17, 0, 54, 19, -41, -48, 55, 9, 2, 13, 3, -8, 51, 19, 28, 35, -28, -17, -5, -20, -42, -30, -40, 21, 0, 17, -40, -23, -21, -12, -7, -28, 12, -19, -17, 13, 33, -71, 32, -32, -8, 21, -13, 34, 80, 0, 4, -14, -8, -27, -18, -11, -22, 7, -15, 27, 31, 34, 21, 46, 3, -11, -10, 24, -7, -26, 66, 32, -40, 31, -31, 0, -16, -35, 0, -23, -14, -13, -74, -17, 43, 38, 12, 18, -6, -4, 21, 19, -6, 7, -28, -14, -46, 11, 4, 23, -12, -33, 39, -49, -56, 12, 9, 60, -1, 8, 51 ]
Steere, J. This case comes here on appeal from an order overruling defendant’s demurrer to complainant’s bill filed in the circuit court for the county of Shiawassee to restrain defendant from charging its subscribers in the city of Owosso any sum for the rental of its telephones in excess of the rate fixed by an ordinance of said city. In outline, said bill states: That on the 21st of September, 1898, an ordinance was passed and accepted granting defendant’s predecessor, the Owosso Telephone Company, assignor of defendant, a “franchise and ordinance” authorizing it to construct, operate, and maintain a telephone line in said city and to charge a telephone rental not exceeding $20 per year for business places and $18 per year for residences within the city limits for 5-year contracts; after five years, not to exceed $24 for business places and $18 for residences per year; also, providing there should be free service between the city of Owosso and Corunna, and a charge not exceeding $18 per year for any telephones furnished for the use of the city of Owosso. That defendant operates under and by virtue of said franchise and ordinance and has obeyed its provisions until shortly before commencement of this suit, when it sent statements of account to various subscribers in the city of Owosso having residence telephones showing them to be indebted to the telephone company in the sum of $5 for the three months following October 1, 1913, until January 1, 1914, and to subscribers having telephones in business places showing that they were indebted to said company for rental of telephones for said period in the sum of $6.50, appended to the statements being the following note: “Quarterly rental charge subject to rebate of 50 cents if paid by the 15th of first month of each current quarter” — claiming the right to charge 50 cents additional for three months’ rental of a telephone, as a penalty, if said rental is not paid on or before the 15th day of each quarter. And that said company also insists that the city of Owosso pay, in like case, a penalty of 50 cents per quarter, the same as charged other subscribers; said bill of complaint therefore being filed by the city of Owosso in its own behalf, as a subscriber to said company, and also in favor of various residents of the city who are subscribers. That, though requested by the city attorney to refrain from the practice of charging such additional 50 cents in such cases, defendant refused, and is continuing so to do. Wherefore an injunction is asked restraining defendant therefrom. On the filing of this bill a temporary injunction was allowed by the court restraining defendant from making such additional charges for delinquency in payment. To this bill defendant filed a general demurrer assigning nine grounds therefor, in substance as follows: (1) The bill is devoid of equity. (2) Does not aver that the subject-matter exceeds $100. (3) Complainant has a full, complete, and adequate remedy at law. (4) _ The circuit court in chancery has no original jurisdiction to adjudicate upon the subject-matter of said bill. (5) “That the whole subject-matter as set forth in such bill of complaint is exclusively within the jurisdiction of the railroad commission in and for the State of Michigan under and by virtue of Act No. 206 of the Session Laws of Michigan for the year 1913.” (6) That the city has no authority under its charter or the ordinance set forth in the bill to regulate and control defendant in charging or collecting 50 cents per quarter against delinquent subscribers there referred to. (7) That defendant has a right under the law to collect said extra charge from delinquents as a reasonable regulation in the conduct of its business, and said rule does not in law violate the maximum rentals allowed by said ordinance. (8) That section 7 of said ordinance is void, in that it unlawfully discriminates between other subscribers of defendant and said city and in attempting to regulate telephone rates beyond the jurisdiction of said city, and “that therefore there is no affirmative showing made by said bill that the complainant is paying, or has paid, the maximum rate allowed by said ordinance to be charged for said telephone service.” (9) “That the complainant city has no right, power, or authority under said ordinance, its charter, or the laws of this State, to file a bill of complaint in the interest of and for the benefit of subscribers' of the Union Telephone Company.” Of these nine reasons, counsel for defendant confine their argument and refer in their briefs to Nos. 1, 6, 4, 5, 9, which overlap to a degree and are more or less contingent on each other. Aside from a denial of equity in the bill and failure from any viewpoint to state a case in the bill entitling complainant to equitable relief, defendant’s chief contention is that the city had no power to regulate rates; and, in any event, the extra charge to delinquent subscribers, as complained of, is but a reasonable rule in the conduct of its business and a matter exclusively within the jurisdiction of the State railroad commission of the State of Michigan under said act of 1913 (Act No. 206), entitled: “An act to declare telephone lines and telephone companies within the State of Michigan to be common carriers, to regulate the business of the same, provide for the consolidation thereof and prescribe a penalty for the violation of this act.” Sections 2 and 3 of said act provide, in part, as follows: “The Michigan railroad commission, hereinafter styled ‘the commission,’ shall have the general control of all telephones, telephone lines and telephone companies within the State, and shall investigate any alleged neglect or violation of the laws of the State by any person, copartnership or corporation doing a telephone business within the State, or by the officers, agents or employees thereof. * * * “All charges made for any service rendered, furnished or performed, or to be rendered, furnished or performed within the State by any telephone company shall be reasonable and just, and every unjust and unreasonable charge for such service is prohibited and declared to be unlawful; and the commission shall have power to make, alter, amend or abolish any rate or charge for any service, and may regulate by rules or orders any service or facility.” Under these and following provisions of said act it is contended that all original jurisdiction in questions involving alleged unjust and unreasonable charges is vested in the railroad commission, to whom aggrieved parties must first appeal, and therefore the court of chancery has no jurisdiction over the subject-matter of this bill except on appeal from rulings of the commission, for which full and detailed provision is made in the act. On the part of complainant, it is contended that the act nowhere gives to the railroad commission exclusive jurisdiction and control over telephone companies ; that in the instant case the franchise granted by the city, accepted and acted under by the telephone company, before said act was passed, is a valid and binding contract, establishing contractual relations and rights between the respective parties in regard to rates, binding upon both, and neither the legisla ture nor the court has, under the Constitution, any right to enact a law or make an order impairing the obligation of such a contract — citing the familiar provision of our Constitution that no “law impairing the obligation of contracts shall be passed,” etc. It is further urged that the telephone company, having voluntarily entered into a contract with the city, has recognized its right to fix the maximum rate to be charged subscribers and is now foreclosed by the doctrine of estoppel from denying the same; therefore, admitting that defendant is, as a general proposition, authorized to enforce reasonable rules and regulations in the conduct of its business, it is urged that rules and regulations imposing a charge in violation of contract relations cannot be held reasonable. It seems clear, unless in exceptional cases, that, under said Act No. 206, governmental supervision, control, and regulation of telephone companies doing a public business is committed to the Michigan railroad commission, and that as a rule said commission has authority to pass upon and determine all questions of rates. The broad power delegated by statute to that commission impliedly abrogates or limits in a large degree first instance resort to the court by both statutory and common-law remedies previously available, while the act carefully preserves the right of appeal to the courts for final review. Complainant is a municipal, and defendant a public utility, corporation, each holden for its existence and entity to a franchise granted by the State — a right conferred upon an association of natural persons in the name and under protection of an artificial personality to organize and engage in certain activities. Their rights and powers are limited by the laws under which they are organized. With the question of contractual rights, raised by counsel for complainant, is involved the question of corporate power in the city to enter into a contract with defendant, a public utility corporation, fixing its rates beyond State control. In the absence of clear and express delegated power from the State, it has been held that contracts of the nature claimed here are permissive only and not such as are contemplated by constitutional limitations. Louisville, etc., R. Co. v. Mottley, 219 U. S. 467 (31 Sup. Ct. 265, 34 L. R. A. [N. S.] 671). At the time this ordinance was passed in 1898, defendant had the right to use public places, streets, and highways in the conduct of its business without any franchise granting permission (section 6691, 2 Comp. Laws; 3 How. Stat. [2d Ed.] § 7214), and the authority of the city under section 3186, 1 Comp. Laws (2 How. Stat. [2d Ed.] § 5708), was limited to the police power of imposing and enforcing reasonable rules and regulations controlling the erection and maintenance of poles, wires, etc., to preserve its streets reasonably safe and convenient for public travel and other proper use. Michigan Telephone Co. v. City of Benton Harbor, 121 Mich. 512 (80 N. W. 386, 47 L. R. A. 104); Village of Jonesville v. Telephone Co., 155 Mich. 86 (118 N. W. 736, 130 Am. St. Rep. 562, 16 Am. & Eng. Ann. Cas. 439); Union Telephone Co. v. Ingersoll, 178 Mich. 187 (144 N. W. 560, 52 L. R. A. [N. S.] 713). In this case, however, it appears that an ordinance was enacted by the city fixing rates, and accepted. If this ordinance granted to defendant any valuable right “clearly outside any rights which it could claim under the authority of the general law,” when accepted it would be a contract binding on defendant, under the ruling in Mahan v. Telephone Co., 132 Mich. 242 (93 N. W. 629). Inasmuch as defendant demurred to complainant’s bill, of which the ordinance in question is made a part, thus admitting all facts therein stated as true, no testimony was taken, and we are relegated to the bill for information as to the situation. An examination of the ordinance shows that the only right or privilege granted defendant’s assignor is'“permission and authority to construct, operate and maintain lines of telephone and electric wires with the necessary posts, poles, equipments and appurtenances, and to make business, house and building connections, and from time to time repair, replace, enlarge and extend the same upon, along and in the streets, alleys and public places in the city of Owosso, to carry on the business of telephoning and of renting electric telephones and of operating the telephones in the city of Owosso.” The remainder of the ordinance is devoted to duties, obligations, and restrictions imposed on the company, including the limit of rates heretofore stated, with a closing paragraph fixing the life of the ordinance at 30 years, “provided that said company or its assigns shall continuously operate its said telephone line in said city of Owosso and shall observe the conditions hereinbefore mentioned.” Although the bill states that defendant “during its entire existence and down until a short time previous” to commencement of this suit had followed and obeyed the “provisions of said franchise,” it gives no information as to when defendant- was incorporated or how long it had existed, but simply states that, as assignee of the company named in the ordinance, it “is operated under and by virtue of the terms of said franchise and ordinance.” The bill contains no allegation that there is or ever was or ever will be any delinquent subscriber who has been or could be injured in purse or person by this objectionable form of account promulgated by defendant on or about October 1, 1913. Until complainant or some of those in whose behalf it alleges this bill is filed become delinquent subscribers and an attempt is made to exact the extra 50 cents from them, it is difficult to discover what injury has been or can be done by that of which this bill complains. It is true that complainant’s bill charges defendant sent statements of account to its subscribers which, as made out, imposed a rate plainly in excess of that fixed by ordinance and previously charged, which, but for the explanatory note appended, would raise a more serious question. Read, however, with the explanation appended, they became innocuous and the extra charge disappeared as to all except delinquents, and we are not advised that there were any such. Defendant’s counsel assert that the extra charge of 50 cents was intended for and amounted to notice of a rule imposing a penalty on those in default, and was no intimation of a purpose to depart, otherwise, from the regular rates previously charged. Clearly such is the meaning of the communication taken as a whole. Just why defendant, in giving notice of the rule, resorted to this roundabout and apparently irritating form of notice which declared an extra charge against all on the indicated assumption that all would be delinquent, with an implied generous proposal to rebate to the regular price if by chance they paid their bills when due, may possibly be accounted for on the theory of psychological myopia, -but is unimportant here, for injury to feelings cannot be recognized as a ground of equitable relief by injunction. This bill discloses no primary injury, no threatened irreparable injury, and no person of the class who might be affected by the proposed extra charge. Courts of equity may not lend aid by injunction in the abstract, and unconnected with any injury or damage to the person or persons asking relief. On the face of this bill the questions raised are in their nature academic, and, irrespective of other reasons urged, we are constrained to sustain defendant’s contention that the bill should be dismissed for want of disclosed equities. The order overruling defendant’s demurrer is therefore reversed, with costs. Brooke, C. J., and Stone and Moore, JJ., concurred with Steere, J.
[ -7, 23, -46, 21, 15, 29, -16, -30, 38, 42, 9, 12, 38, 4, 13, 12, -44, -20, -16, -10, -9, -31, 16, -80, -70, -18, -23, -1, -52, -17, 51, -14, -15, 6, -16, 23, 3, 20, -33, -12, -13, 6, 24, -7, 28, 31, 30, -28, 15, -16, -46, 1, -53, 24, 6, -27, 25, -28, 21, 21, -71, -9, -5, 34, -17, 22, -2, 30, 58, -52, 38, 20, 18, -21, 65, 7, -50, -19, -37, 62, -40, -16, -23, 2, -41, 1, 41, -46, 9, 28, -5, -10, -45, 0, 5, 7, 46, -18, 25, -13, -15, -71, 9, 11, 15, 14, 0, -4, -1, -18, -27, -22, 21, 0, -7, -27, 10, -5, 46, -5, -13, 30, 34, 29, -7, -24, -7, -18, -26, -32, -8, 13, -14, -22, 73, 31, 18, -39, -48, 14, 33, 13, 3, 12, -26, -24, 0, 59, -48, 8, 0, 8, 45, 54, 2, 14, -3, 25, -7, 0, 9, 5, 4, -69, -61, -52, -5, 34, 15, 80, 11, 4, -36, -26, 29, 39, -7, 10, -22, -49, 17, 11, -31, -28, 30, 2, 24, -51, -16, -3, 19, -36, -8, -77, -35, 23, 82, -2, -52, -7, -59, -27, -15, 49, 18, -37, 20, 44, -1, 33, -13, -4, -63, 16, 10, 45, -57, -26, 7, 58, -19, 51, 26, 41, -82, -9, 28, 10, -12, -17, -2, 22, -8, 55, -53, -22, 1, 33, 7, -42, -65, 39, -6, 8, -59, -10, -37, -10, -51, 13, 6, 1, -32, 70, -15, -13, -29, -4, -5, -29, 8, -23, 7, 5, 20, -88, -11, 28, 14, -44, -25, 67, 6, 58, -23, -13, 25, -14, 23, -21, 21, -72, -8, 20, 13, -8, 13, 8, 14, -3, -1, 24, 24, 9, 17, 14, 7, 49, -19, -2, -42, -37, 26, -14, 29, 58, 4, -29, -2, 39, -47, 53, -66, -11, 54, 6, 19, 19, 35, -14, -8, 53, -5, 7, -41, 0, 18, -36, 24, -23, -4, -16, -39, -68, -7, 18, 32, -20, -41, -34, 8, 21, 15, 47, 30, 37, -12, 9, 26, 12, -57, 26, -20, -2, 48, -27, -10, 7, -25, 36, 13, 14, -23, -18, 15, 5, 2, 43, 16, -8, -39, -32, -39, -4, 18, 22, 23, 7, -5, 36, 76, 19, -7, -13, 17, -4, 32, 22, -62, 8, -17, -6, -55, 9, 7, -1, -41, -43, -24, -53, 0, 22, -14, 10, -18, 8, -12, 60, 0, 12, -15, -82, 25, -2, -13, 39, 8, -39, 40, 18, 25, 41, -30, -1, 18, 6, -2, -7, 43, 42, -5, -10, 38, -15, 13, 0, -46, 15, -45, -22, 17, 18, -3, 10, -11, -53, -27, -12, 0, -17, 59, 13, -5, 6, 12, -29, 33, 30, -3, 18, 16, -10, 45, 19, 23, 26, -16, 11, -24, -4, -18, 26, 40, -1, -24, -47, -9, -50, 16, 8, -36, -34, 0, -7, 14, 14, 21, 0, 6, 8, 9, 30, -19, -35, 27, -7, -41, 24, 0, -7, -78, -9, 24, -48, 3, -5, -22, -4, 4, 26, 5, -3, 26, 35, -24, -30, 30, 0, -15, -12, -3, 37, -23, -11, 6, 14, 29, 21, 53, -25, -47, 23, 14, -40, -8, -45, -11, -34, -15, 18, 16, 33, 16, 45, 38, 12, -44, -19, 42, -56, -24, 18, -70, -78, -38, 49, -62, 13, 5, 22, -9, -5, 18, -72, 21, -26, 10, 46, 0, 35, 3, 9, 59, 20, -35, -14, -10, -54, 47, -35, -20, 0, 12, -14, 19, -22, -24, 0, -1, 23, 5, 56, -4, -11, 16, 6, 30, 16, 12, -31, -20, -23, -39, -6, -24, 23, -59, 67, 12, 7, 27, 27, 18, -10, 21, 8, 45, 1, 28, -37, 66, 26, -3, 21, 10, -59, 3, -41, -47, -4, 0, 21, -20, -8, 0, 31, 5, 38, -28, 35, -6, 0, -55, -58, 9, 1, -27, -8, -43, 54, -13, 66, 62, -16, -18, 24, 10, -14, 19, -42, 24, 0, -2, 21, -19, -10, 23, -22, 27, -4, 2, -44, 42, -26, 12, -37, 14, 33, -12, 27, 7, 12, -1, -47, -9, 21, 50, -13, -22, -16, 17, -54, -26, -9, 0, 25, 52, 0, 67, 14, -5, 19, 17, 33, -46, 24, -14, -15, 7, 20, 10, -43, 22, -3, 5, 9, 28, 23, 15, -13, 55, -38, -20, -32, -36, 6, -6, -45, -30, -15, -26, 50, 38, -3, -15, -51, -87, -27, 1, 58, -52, -26, -16, 0, -65, 13, 5, 2, -37, 12, -12, -22, -3, -8, 19, -45, -1, 46, -16, -42, 35, -2, 75, 22, -31, 50, 13, -17, 33, -23, -13, -9, 0, 22, 20, 25, -32, -14, -21, -7, -3, 31, -43, -28, 38, -30, -4, 20, 36, 13, -23, -35, 75, -45, -29, -1, -16, 15, 1, 0, -25, -7, -26, 28, -70, -17, 18, -62, -57, 23, -46, -1, -8, 10, 7, -41, -13, 20, -70, 1, -9, -1, 18, 74, -26, -7, -12, 9, -44, 32, 30, -18, -8, -47, -13, 0, 26, 19, 8, 49, -35, -41, -33, 30, -24, 1, -6, -13, -22, -10, -35, 19, -35, -22, 19, 7, 1, 54, -29, 7, 13, 31, -33, 1, -15, -45, 18, -23, 18, -36, -10, -8, -13, 13, -31, 11, 24, 4, 8, -16, 3, -30, -7, 6, 19, 14, -3, 59, 53, 42, 15, 19, 24, -23, 38, -16, 1, -55, -7, -19, 0, 66, 13, -13, -65, -42, 30, -19, 7, 28, 30, 14, -47, -35, -27, -12, -79, 11, -4, 11, 33, 20, -5, 43, -38, 6, 13, -1, -40, 21, -28, 0, 3, 4, 0, -15, 33, -4, 47, 67, -81, -5, 34, -27, -1, 30, 24, 12, 54, 45, -42, -17, 17, 52, -8, 48, -51, 0, -4, 7, -45, 17, 65, -50, 40, 21, 57, 17, -15, 10, -44, -6, 12, -76, -32, 4, 21, 21, 21, 6, 18, 60, 8, 1, -20, 74, -14, -48, -42, 42, 49, 2, 54, -7, -6, -37, -5, 17, 15, 10, 24, -27, -5, 19, 2, -14, 76, 4, 1, -12, -16, 20, -7, 6, 17, 38, 8, 0, -14, -6, 35, 26, -38, 79 ]
Stone, J. This is a bill in aid of execution. Prior to April 8, 1912, the L. Starks Company had commenced in the circuit court of Missaukee county, in chancery, a case for an accounting against John B. Eppink and Tannette Eppink, as defendants, and on said day the circuit judge, after a hearing of the case, filed findings of fact and conclusions of law, and ordered that a decree be drawn in favor of complainant against both of the defendants. At that time the defendant Tannette Eppink was the owner in fee simple of 220 acres of land in Missaukee county worth on an average $10 an acre. She was also the owner in fee simple of lots 12, 13, and 14 of the village of Lucas, worth $200, and also the owner of lot No. 1 of the village of Lucas, which was her homestead, and which she testified was worth $1,500. On the 13th day of June, 1912, a warranty deed, dated the 25th day of May, 1912, was recorded in the office of the register of deeds of said county. By this deed the defendant Tannette Eppink purported to convey to Sena Taylor, her daughter and codefendant, for the express consideration of $2,000, the 220 acres of land, and said lots 12, 13, and 14 of the village of Lucas. This was all the property that Mrs. Eppink owned, except her homestead lot, above referred to. On the 31st day of July, 1912, a final decree was made in the case above referred to. As far as that decree is material to the issue of the present case, it provided as follows: “That the defendant John B. Eppink was acting in a fiduciary capacity with the above-named complainant, L. Starks Company, and that while so acting in said capacity, the defendant John B. Eppink misappropriated $1,202.10 of the money belonging to complainant; that of this sum the defendant Tannette Eppink received the amount of $510.63, leaving the balance owing by the defendant John Eppink to the complainant by reason of such misappropriation by acting in the fiduciary capacity aforesaid $691.57.” ‡ ‡ ‡ “That the defendant Tannette Eppink is indebted to the complainant in the sum of $510.63, together with interest thereon from August 1, 1910, at 5 per cent, per annum, being the amount of the money misappropriated by the defendant, John Eppink, as aforesaid, which was used for the benefit of the defendant, Tannette Eppink.” Oh the 1st day of October, 1912, an execution was issued on said decree and delivered to the sheriff of said county. This execution was returnable November 30, 1912. On the ,15th day of October, 1912, the sheriff of said county made levy upon the 220 acres of land above referred to as belonging to Tannette Eppink, lots Nos. 12, 13, and 14, and also lot No. 1 of the village of Lucas. A certificate of levy to this effect was signed by the said sheriff, and filed by him in the office of the register of deeds for said county on the 15th day of October, 1912, at 9 o’clock in the forenoon. He did not indorse the levy on the execution. It appears, and is undisputed, that at the time this levy was made the sheriff was instructed by the solicitors for the complainant not to return said execution until they directed him so to do. On December 15, 1913, the bill in the instant case was filed, together with a notice of Us pendens. An order of publication as to the defendant Sena Taylor was signed the 24th day of May, 1913, and filed on May 26, 1913. It appears that the order was duly published, the first publication being on June 5, 1913, and the last publication on July 17, 1913. The proof of publication made by the printer was received by the solicitors for complainant about the 18th of July, 1913. Through' an oversight this proof of publication was not filed in the case, but was placed in the office files of the solicitors for the complainant. The solicitors for the complainant were not aware that this proof of publication had not been filed until the 1st day of July, 1914, and they were first made aware of that fact by the findings of the court in this case. It appears, however, that, on November 15, 1913, an affidavit of nonappearance of the defendant Sena Taylor was made by one of the solicitors for complainant, and an order pro eonfesso as to the defendant Sena Taylor was filed. That affidavit contains the following language: “That, although the order herein made by this court that the defendant Sena Taylor should cause her appearance to be entered in this cause within four months from the date thereof has been duly published, as directed by the said order, as appears by the affidavit. of Charles R. Burleson on file, and although more than four months have elapsed since the said order was made, this deponent nor the firm of Hall & Gillard, solicitors for said complainant, have not received any notice that an appearance has been entered in this cause by or on behalf of said defendant, Sena Taylor, nor has the appearance of said Sena Taylor been entered therein, as appears by the records and files in this court, or the knowledge or belief of this deponent.” The order pro eonfesso recites the following: “On filing due proof of publication of notice of the order requiring the defendant Sena Taylor to appear and answer the bill of complaint filed in this cause within four months from the date of such order, and the time limited in said order for the entering of such appearance having expired, and having filed due proof that said defendant Sena Taylor has not appeared in said cause,” the order pro eonfesso as to her was entered. This cause was heard in the court below on the 20th day of May, 1914. Upon the hearing it first came to the knowledge of complainant’s solicitors that on the 30th day of November, 1912, the said sheriff returned and filed the execution which had been issued as hereinbefore stated, with the following return thereon: “By virtue of the within execution, I have levied and collected $170.84, part of the damages in the case within mentioned, and I can find no goods or chattels whereon to levy the remainder thereof.” On its coming to the attention of the solicitors of the complainant that this execution had been returned, the following occurred upon the trial: “Mr. Hall: This execution appears in the files. It should not be in the files. I directed the sheriff to hold that execution, and this is the first time that I knew it was in the files. It was filed November 30, 1912. (Mr. Hall' shows execution to Mr. Gaffney.) “Mr. Gaffney: There was $170 paid. * * * “Mr. Hall: That was the $160, and the interest thereon. * * * That execution should not be returned. I didn’t know it was returned before. “The Court: Was there any levy made under it? “Mr. Hall: Yes, sir; there was, and I have a certified copy made on October 15, 1912, and I do not know why the officer returned that against my instructions. There is no question but what a returned execution is not the basis of a bill in aid of execution, although it is up to Mr. Gaffney what he wants to do; whether he wants to consider that not returned and let us go on and try out the matter; or whether we will have an adjournment and make a petition that, that return be stricken from the files. I don’t know what we can do if the sheriff does not obey instructions. I think we have a right to have that return stricken from the files. He made his levy, but he has not indorsed the levy on there at all. As I understand it, this man is not sheriff of Missaukee county at this time. “The Court: No; he is not. According to the files that execution had been returned prior to the beginning of this suit, and you folks would be presumed to have knowledge of it, and technically that is the situation. “Mr. Hall: That is true, your honor. The bill was not filed until February, 1913. I was not up until October, and at that time the levy was made, and then we had to wait until after the return day; then there has been some talk all along of settling it up. “The Court: At the time you filed your bill the files in the register in chancery’s office showed that this execution had been returned? “Mr. Hall: That is true. “Mr. Gaffney: I will consult with my clients a moment. “(At this point Mr. Gaffney withdrew into the judge’s private room for a time, and after emerging from the judge’s room Mr. Gaffney said:) “Mr. Gaffney: Your honor, after consulting with Mrs. Taylor, Mrs. Eppink, and John Eppink, we have decided to waive, and do waive, any question that might arise. I might say now that the return of the sheriff to the execution be declared no return, and that the execution be deemed to be in his hands awaiting the result of the trial. “Mr. Hall: Very well; I thank you. “Mr. Hall: We offer this certified copy of the deed in evidence. “Mr. Gaffney: No objection. “The Court: It will be received and marked Exhibit B. “(Certified copy of the levy and execution received in like manner, without objection.) “Mr. Hall: Your honor, with the findings and the decree of the court in the original case, the admission in the answer to the second paragraph of the bill of complaint that previous to the rendition of the judgment, and at the time the indebtedness occurred, Mrs. Eppink was the owner of the property mentioned in that deed, the execution as amended, the deed from Mrs. Eppink to Mrs. Taylor and the levy and execution, we rest. There is no question about the amount of $510.63 being still due and unpaid. “Mr. Gaffney: Oh, no, sir.”' Tannette Eppink, one of the defendants, was then sworn in her own behalf. She testified, upon direct examination, that on the 25th day of May, 1912, she was the owner of the property above described, and that on that day she conveyed the same away, with the exception of the homestead, to Mrs. Taylor, her daughter, and that she was paid the consideration mentioned in the deed. Upon cross-examination she testified that she was a witness in the original case against herself and her son. She testified that she did not know that the company was asking for a judgment against her, and claimed that she did not ascertain that a judgment had been rendered against her until about half a year after that; that she was surprised when she heard there was such a judgment against her; that Mrs. Taylor made a payment of $500 in June; that she had used the money, but could not tell for what purpose; that she received the remainder of $1,500 from her daughter in Chicago between Christmas and New Year. She testified that the property which she conveyed to Mrs. Taylor was all the property that she owned, except the house and lot where she lived in the village, which latter was worth $1,500. She could not specify what she had done with the last money which she received from Mrs. Taylor, only it was gone. “Q. Is it all gone? “A. I think it is; I may have some of it. “Q. Well, if you have it, where is it? “A. Is it necessary to tell that? “Q. Yes. “A. I couldn’t tell you where it is.” Mrs. Sena Taylor was sworn as a witness in her own behalf, and testified that she was the daughter of the last-named witness, Mrs. Eppink; was married and lived in Chicago; that the deed to her was in her husband’s safe in Chicago. She further testified that she was not at the home of her mother on the 25th of May, but had been previous to that time; that she did not come prepared to pay for the land at that time; that she paid her mother the consideration mentioned in the deed in two installments; that she paid the first installment of $500 in June at her mother’s home, and the balance of $1,500 at her own home when her mother was there between Christmas and New Year, and at that time took receipts from her mother; that she did not have the receipts with her, but they were at home with the deed; that she did not receive the deed when she was in Michigan and made the $500 payment, but left it with her brother, John, whether for recording or not she was not able to state, but she presumed it would be recorded, but didn’t remember what was said regarding the deed. John Eppink swore that he knew of the making of the deed; that it was left with him with instructions to have it recorded; that he neglected to send it to Mrs. Taylor, and that he never delivered it to anybody. He testified that he did not know what his mother did with the money, only that she had given him some money since that time. It appeared that a Mr. Shreve, an investigator for the William J. Burns National Detective Agency, had been over from Chicago in the fall of 1912, and had an interview with Tannette Eppink, with reference to the purchase of a part of the property which had been conveyed to Mrs. Taylor. He testified in re buttal that Mrs. Eppink admitted that she owned one 40 of the property which adjoined that of a Mrs. Boerts, and .that she also owned 80 acres on the other side. When asked if she wanted to sell the property, she said that she didn’t know, and then spoke about her son having trouble with L. Starks Company; that she said in reality she owned the property, but that her son had got into trouble with the Starks people and they were trying to get the land away from her, but to save it she had deeded it to her daughter, Sena Taylor, who lived in Chicago; that the property was really hers, but she would have to get a deed from Mrs. Taylor; and that she had turned her property over to Sena Taylor to keep L. Starks Company from doing her out of it. It appeared that this deed was given to, or taken by, Mr. Shreve when he was at Mrs. Eppink’s. He further testified that he had a talk with Mrs. Taylor in Chicago, in which she said that she thought it would be best for them to sell a part or all of the property, and that she was willing to do whatever her mother desired her to do in the case, and that this was repeated a number of times. There is much more of the testimony of this witness from which it appears that a deed with the name of the grantee in blank had been sent by Mrs. Taylor from Chicago to Mrs. Eppink in contemplation of a sale of the property. Much of the testimony of the man Shreve was denied by Mrs. Taylor and her mother. Mrs. Taylor admitted that he had called upon her in Chicago and had claimed that he wanted to buy, especially the property adjoining Mrs. Boerts. She denied, however, that she had ever talked to Mr. Shreve about the complainant. She was unable to state how many acres she got by the purchase, or how much land was embraced in any of the descriptions mentioned in the deed. When asked how many acres she got by the deed, she answered: “I couldn’t tell; I got all that my mother had anyway.” She stated, when asked what the property was worth, that she did not know anything about the value of the land. John B. Eppink testified, upon cross-examination, that some of it was worth $20 or $25 an acre, but that on an average perhaps $10 an acre, and that the three lots were worth about $200. By authority of section 10203, 3 Comp. Laws (section 12864, 5 How. Stat. [2d Ed.]), after the complainant had made its prima facie case, the burden was then cast upon the defendants to show that the transaction was in all respects bona fide. Was this property conveyed for the purpose of hindering, delaying, or defrauding this complainant? That such was the purpose of Tannette Eppink, we thiiik, is established beyond question,' and was so found by the trial court. It is a tax upon one’s credulity to believe that Mrs. Eppink did not know at the time she conveyed away this property that the trial court had made a finding against her in the sum already stated. She had been a party and witness in what appeared to have been a contested suit. She had been represented by at least two counsel upon that hearing. That every member of the family, including Mrs. Taylor, who had recently visited her mother, knew the result of that suit, is, in our opinion, beyond question. The only question remaining upon the merits is: Did the daughter, Mrs. Taylor, know of this condition, and did she, in the receiving of this conveyance, know the purpose which the mother had in deeding the property away? There are many earmarks about the testimony in the case that lead an unbiased mind to believe that the whole transaction was a scheme to place this property in the hands of the daughter, and away from this complainant’s execution. The facts that the deed was made in the absence of Mrs. Taylor; that no money was paid until, as found by the circuit judge, on the 19th of June following, when $500 was paid; that the final payment of $1,500, if ever actually made, was made 60 days and upwards after the notice of the levy of execution had been duly filed — are all very significant. The fact that no satisfactory explanation is made as to what was done by Mrs. Eppink with the money leads one to criticise very closely this “family affair,” and the testimony of these defendants. There is no claim that Mrs. Taylor was a creditor, or that her mother was in any way indebted to her. The rule of law has been repeatedly stated by this court to be as follows: “Such a knowledge of facts as will put an ordinarily prudent man on inquiry will affect the good faith of one who takes a transfer of property from an embarrassed owner. Actual participation in the fraudulent intent of the latter is not necessary to defeat the transfer.” Hough v. Dickinson, 58 Mich. 89 (24 N. W. 809). In Bedford v. Penny, 58 Mich. 424-428 (25 N. W. 381), this court held that actual participation by a purchaser in the fraudulent intent with which one makes a sale to defraud his creditors is not a necessary condition to its avoidance; if the purchaser is not a creditor, it is enough that he knows what would put a prudent man upon inquiry as to the motive of the sale. See, also, Jordan v. White, 38 Mich. 253; Allen v. Stingel, 95 Mich. 195 (54 N. W. 880); Gumberg v. Treusch, 110 Mich. 451 (68 N. W. 236). In Gordon v. Alexander, 122 Mich. 107 (80 N. W. 978), this court said the following request to charge should have been given: “The plaintiff was not a creditor of McDonald, but a purchaser; and, if he had knowledge of facts sufficient to put an ordinarily prudent man on inquiry, such knowledge on the part of Gordon would be sufficient to avoid the sale, without any active participation in the fraud by him.” See, also, Lyon v. Clark, 129 Mich. 381 (88 N. W. 1046). We have examined with care the decisions of this court under the section above quoted (section 10203, 3 Comp. Laws, section 12864, 5 How. Stat. [2d Ed.]). That the burden is cast upon the defendant to show the bona fides of the transaction in all respects has been repeatedly held by this court since the adoption of the foregoing statute. Smead v. Rogers, 120 Mich. 441 (79 N. W. 638); Preston National Bank v. Leonard, 122 Mich. 381 (81 N. W. 264; Ullman v. Thomas, 126 Mich. 61 (85 N. W. 245); Gruner v. Brooks, 126 Mich. 465 (85 N. W. 1085); Wilcox v. Hammond, 128 Mich. 516 (87 N. W. 636); Crane v. Waldron, 133 Mich. 73 (94 N. W. 593); Shepard v. Schrutt, 163 Mich. 485 (128 N. W. 772). We have frequently said that in cases of this nature family transactions should be carefully scrutinized. In our opinion, the defendants have not sustained the burden of proof cast upon them by the statute. They have failed to show that the transaction was in all respects bona fide. The trial court reached a different conclusion, but, this being a chancery case, it becomes our duty to examine the whole evidence. It does appear by the findings of the court below, and in that respect we agree with the court, that the $170.84 indorsed on the execution was intended to apply on said judgment against John Eppink; that said amount was for certain potatoes, in the warehouse, which had been disposed of by that defendant in execution. The trial court dismissed the bill of complaint, and the complainant has appealed. The trial court criticised the testimony of the wit ness Shreve as “too pat to be credible.” The same may be said of the testimony of Sena Taylor as to the transactions between her and her mother. The fact that she carefully took receipts from her mother for the two payments is, to say the least, unusual. The consideration was mentioned in the deed, and the acknowledgment therein of the receipt thereof was certainly a sufficient receipt for the payment. With the merits of the case in this condition, it is necessary for us to speak of the failure to indorse the levy upon the execution, and the sufficiency of the filing of the notice of levy. We need only refer in this connection to Vroman v. Thompson, 51 Mich. 452-456 (16 N. W. 808), and Shepard v. Schrutt, supra. In view of the admission made by defendants’ counsel in open court (to say nothing about the application to set aside the return of the officer upon the execution), we think it should be held that that irregularity was waived in open court by counsel in the presence of the defendants, and that they are estopped thereby. We are also of the opinion that the irregularity in not filing the printer’s affidavit when the order pro confesso was entered was not fatal to the proceeding. The affidavit of the solicitor for complainant was, at least, some evidence of the publication. The affidavit of the printer does not exclude other proof, such as the affidavit of some other person who knows the fact. Matthews v. Supervisors, 48 Mich. 587 (12 N. W. 863). We have examined with much care the sections of the statute to which our attention is called by defendants’ counsel in their brief, to wit, sections 9533 and 9537, 3 Comp. Laws (sections 11417, 11421, 4 How. Stat. [2d Ed.]), as well as the authorities cited by counsel. The evidence in the case is such that we cannot hold that Mrs. Taylor was a bona fide purchaser. At most, she paid but $500 upon this purchase before she had notice by the filing of the levy. The effect of such notice was to put her upon inquiry, before she made her claimed final payment. Matson v. Melchor, 42 Mich. 477 (4 N. W. 200). See section 9224, 3 Comp.. Laws (section 11386, 4 How. Stat. [2d Ed.]). The decree of the circuit court will be reversed, and one entered in this court in favor of the complainant-in accordance with the prayer of its bill, with costs of both courts to the complainant against both defendants. Brooke, C. J., and McAlvay, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred.
[ -2, 60, -3, 18, -34, -2, 21, 14, 21, 12, -31, -8, 15, 18, -9, 6, 3, 34, 46, 20, 23, -26, -28, -5, -3, 12, -1, 18, 26, 2, -6, 0, -15, 19, 1, -19, 61, 20, 3, -6, 3, -20, 34, -17, 4, -8, -10, -35, -5, -51, -15, -26, 0, 4, -1, 6, -19, -84, -27, -9, -51, -44, -11, -23, -10, 63, 22, 23, 22, -31, 0, 8, 2, 10, 26, 59, -30, 37, -28, 12, -24, -37, 8, 18, -33, -32, -4, -34, -6, -7, -20, 10, -49, 17, 33, 14, 45, 11, -3, 0, -22, 15, 7, 45, 18, 28, -18, -20, -38, 7, -30, -40, 75, -29, -29, -33, -21, -39, 0, -11, 16, -2, 39, -35, 22, 17, 0, 3, 7, 22, 26, -49, -3, -18, -4, -17, -19, -26, -3, -17, -10, 10, -19, -30, 1, 27, 8, -39, -6, -8, -41, 34, 0, 55, 15, -4, 58, -36, 26, -25, 29, 3, 20, -38, -47, -46, 31, 6, -4, 40, 67, 6, -53, -23, 10, -6, 20, -60, -15, 0, 51, 40, -18, 1, -8, 15, 8, 10, 23, 0, -6, -2, 20, -35, -6, 36, -12, 30, -32, 12, 24, -53, 24, -25, -3, -8, 30, 9, -27, 8, 12, 17, 15, -14, -23, -1, -28, -15, 12, -5, 14, 6, 4, 26, -50, -40, 41, -8, -8, -15, -14, 11, 19, 42, -33, -6, -12, -20, -13, -15, 11, 1, -15, 8, -9, 13, -55, 13, -25, 40, -64, 16, -26, 49, 31, 19, 9, 19, -4, -17, 9, 1, -11, 23, 23, -12, 7, 15, -37, -20, -35, -6, 36, 9, 22, -13, -2, -49, 8, -9, 15, -28, -7, 12, 0, 36, 16, 54, -9, 13, 14, 8, -21, -26, 27, 49, -8, -55, 30, 22, -67, -43, 26, 13, -14, -9, -5, -5, 12, 17, -3, 41, 4, -30, 17, 24, -13, -18, 30, -26, 20, 15, -67, -20, 42, 34, 3, -42, -4, 25, -9, -9, 11, 3, 19, -3, 64, 9, -3, -11, 34, -14, 10, 11, 4, 10, 5, 30, -2, -26, -2, 1, -21, 74, -38, -7, 10, -12, -1, -17, 0, -6, -9, -20, -26, -1, -25, -48, 3, -12, -40, 21, -10, -3, -7, -8, -28, 3, -12, 18, 3, 8, 33, 68, 32, 16, -7, -12, -38, 4, -37, -10, -15, 9, -40, -53, -54, -39, -69, -36, -54, 2, 23, 28, -43, -7, -27, 5, 17, -9, 52, -81, 56, -21, 8, -7, 46, -20, 74, 37, 38, 0, 5, 21, 0, 1, -3, 33, 4, -44, -51, 50, 18, 4, 70, 31, -54, -9, 1, 15, 7, 49, 19, -18, 26, -24, -18, -17, 47, 9, 29, -13, 35, -1, 27, -22, 42, -5, 39, -6, -2, 24, 29, -23, 10, -17, -23, -22, 12, 74, -10, 65, 13, -4, 11, -29, 18, -17, 21, 13, 18, -82, -1, -34, -4, 8, 18, -14, 13, -19, 33, 9, -2, 20, 25, -86, -42, 4, 39, 29, -13, 11, 30, 13, -12, -21, 3, -9, -21, 27, 41, -33, 33, 3, -1, 50, 45, 6, 31, 45, -26, 50, -3, 32, -11, 6, 94, 10, 29, -30, -49, 38, -22, 37, -14, 7, 4, -28, -36, -31, -22, 0, 10, 28, -7, -19, 46, -47, -4, -20, -47, -29, 12, 2, -9, -67, 37, -23, 15, -19, 6, 16, -16, -62, 50, -89, 14, -75, 0, -6, -3, -22, -9, -16, 26, -32, -11, -24, 3, 14, -32, -12, 44, -43, 29, 9, 31, 15, -2, 3, -8, -14, -33, -23, -3, -53, 7, 6, 54, -2, -14, 11, -73, -39, -4, -34, 16, 57, 36, 23, 1, -12, 24, 8, 38, 39, 33, -69, -37, 24, 32, -38, 23, -4, 22, 16, 11, -4, -33, 19, -7, -41, 17, 35, 2, 18, -6, 19, -3, -14, -22, -47, -44, -49, -8, -16, -45, -23, -3, -2, -26, 43, 52, -19, -14, 46, 26, 20, 34, 0, 30, -3, -21, 17, 38, -23, 43, -15, 40, 37, 22, -40, 19, -5, -36, 5, 12, 26, -6, -3, 34, 8, -1, 30, -36, -8, 22, 45, 1, -42, -31, 25, 0, 26, -2, -26, -26, 4, 15, 29, 45, 64, -12, 4, -31, 37, -11, 14, -29, -12, 24, -1, 16, 12, -28, 26, 50, 25, -26, -25, -36, -46, -12, -33, 38, -16, -4, -33, 22, 53, 1, 64, -4, 24, -16, 46, -49, 15, -35, -37, 27, -27, -61, -29, 3, -20, 17, 42, 22, -6, 8, 29, 25, 4, -17, -9, 11, -10, -17, -13, -4, 37, 8, 7, 17, -4, -19, -40, 0, -6, 1, 22, -45, -14, 11, 27, -62, -18, -14, -22, 30, -39, -1, -2, 55, -51, 0, 26, -27, 23, -21, -41, -9, -18, -32, 20, 33, 25, 41, -73, 14, 15, -20, 24, -59, 27, -53, 10, -43, 31, 7, -1, -22, -9, -3, 21, 21, 20, -23, -22, -37, 39, 28, 15, -24, 16, 14, -7, -68, 22, 17, -12, -39, -11, -16, -15, 46, 32, -38, -26, -39, -32, 1, -5, -2, 41, 44, 32, 1, -19, -6, -26, 27, -39, -76, -28, 33, 17, -60, 36, 26, -17, -37, -24, -27, -53, -8, -9, 6, -6, -22, 0, -29, 50, 5, 8, 0, -15, -3, -29, -38, 20, -21, -21, -14, 48, 21, -14, 11, 19, -5, 9, -14, -14, -34, -6, -11, -70, 1, -12, 5, 31, 5, -26, 0, -37, -2, 8, 16, 3, 20, -10, -13, -29, -42, 21, -58, -10, -36, 14, 19, 21, 6, 18, -16, 5, 18, -8, -20, 27, -19, -66, -4, 12, 0, 9, 24, -36, 28, -2, 7, -2, 0, -19, -5, -15, 36, -29, 22, 27, 2, 32, 21, 28, -17, -13, -15, -13, 16, 27, -3, -1, 12, -13, 29, 4, 4, 18, 25, -26, 15, -13, -17, -29, -6, 18, 58, 29, -10, -7, 27, 14, 7, 63, -2, -1, 4, -27, -22, 3, 17, 37, 27, -7, 3, -16, -23, -29, -14, -3, 20, 0, 5, -18, 20, -23, 23, 20, 4, 40, -31, -30, 28, -11, 1, 20, -2, -18, -19, -50, -21, -16, 26, 42 ]
Ostrander, J. Plaintiffs intestate, riding in a wagon drawn by a team of horses, was killed by defendant’s train on a highway crossing in the village of Gregory (not incorporated), in Livingston county, at about 7:31 o’clock in the afternoon of November 25, 1912. He was a farmer, 51 years old, possessed of his faculties, had lived nearly all his life on the same street, 1% miles north of the crossing. Gregory was his market place, and he was accustomed during the winter to go to town, on an average, two or three times a week. He was a good teamster, and drove a gentle team. Upon the occasion in question the team had been hitched in the street 267 feet south of the crossing. From this point it was driven directly to and Upon the defendant’s track immediately in front of the moving train. The street intersects the track at right angles; the station house being 48 feet east of the east line of the street, and 14% feet south of the south rail of the track — a small structure 16% feet square. The street was lighted; one electric light hanging very nearly over the railroad crossing. The train, No. 43, was a freight, with nine loaded, no empty, cars and a caboose, west-bound, was late, did not stop at Gregory, and was running at a speed about which witnesses do not agree — from 15 to 40 miles an hour. Plaintiff recovered a judgment for $4,000, and, in seeking a review of the trial, the defendant contends, as it did in the court below, that nó negligence of defendant was made out, and that contributory negligence of plaintiff’s intestate was established. There was a motion for a directed verdict and various requests to charge, which, with the exceptions taken, raise these principal propositions. Questions usually presented in cases of this character are absent. The headlight upon the locomotive was burning, and the usual signals were given. The court in the charge said to the jury: “I think I am warranted in saying in this case that Mr. Wood must have known that a train was coming.” Plaintiff’s counsel said in argument: “Now, what difference in this case does it make whether or not Mr. Wood, upon that occasion, knew that a train was coming or not? He had no reason to believe that it was a different train from the one that the defendant told him he might expect to be there. He heard it coming, gentlemen. First, it was right here on that time that the passenger should be there, because he heard it give the same signals, ring the same bell that the passenger train would be giving or ringing, if it was there. “I notice my Brother Williams acts as though he thought there wasn’t any evidence of that in the record, and for his benefit I am going to tell you. The gentleman has said, T don’t know whether it gave the same signals or notbut, out of their own breath, the witness that lived there, within 30 rods of the track, heard it all, saw the headlight, and he says, T thought it was the passenger train.’ “Gentlemen, as square-headed, sensible men that can think of their own accord, can they now tell us it was giving different signals than a passenger train, when all those old citizens and persons living near the track thought it was a passenger train on account of hearing the same signals, the same bell, the same kind of a headlight? “Not only did Mr. Wood hear the same signals that the passenger train usually gave and give them at the same place, but, gentlemen of the jury, he saw the same headlight, and it was with a great deal of pleasure that I heard my brothers put in that testimony of that fact in this case, and it was with far greater pleasure that I heard them arguing that fact to this jury that those signals were all given there. What effect did it have upon poor Mr. Wood? Oh, it was saying to him, ‘Here’s the passenger train; don’t you hear that whistle?’ I have no doubt but he heard it, and gentlemen, I am perfectly willing to concede all that my brothers have said about his hearing it and about his hearing the bell and about his hearing the noise of the train coming down. Of course he did. He saw the headlight, and what did it do? It lured him on; it enticed him on to believe that it was a passenger train going through. Yes; like the song of the siren it lured him on to his danger and his fate, and the daughter was left an orphan, and the good wife was made a widow.” The real issue, upon the decision of which the plaintiff relied, at least after the trial had progressed for some time, involved the admission of the fact that plaintiff’s intestate knew that a train was approaching. His theory was fairly stated by the learned trial judge in a portion of his charge to the jury as follows: “Plaintiff further claims that at the time said freight train passed through said village of Gregory there was a passenger train which was due, and that a freight train was running on the passenger train’s schedule time or one minute thereafter; that plaintiff’s intestate was acquainted with the fact that said passenger train was due at that hour, and, relying upon said knowledge, drove across said railroad crossing at Main street. So that presents a question for your consideration, to determine whether the railroad company at the time in question was in the exercise of such care and took such precautions as the dangerous nature of the crossing required. Ordinarily the giving of the statutory signals is sufficient to protect travelers upon the highway who desire to cross the railroad track; but, if you should find in this case,by a preponderance of all the evidence in the case, that a passenger train was due at Gregory from the east at 7:30 on the day in question, and that it did not arrive there until some time thereafter, but that at 7:31, or one minute later than the schedule time of the passenger train, a freight train from the east went over said railroad and across said highway at upwards of 40 miles per hour, and it was dark, and there were obstructions between the track upon defendant’s right of way and the public highway south of said railway track which obstructed or partially obstructed the view of the engineer or fireman and prevented them from seeing pedestrians coming from the south of said railroad track on said highway, and also prevented or partially prevented pedestrians coming from the south upon said public highway, going across said railroad, from seeing an approaching train, then and under such circumstances it woud impose an additional duty upon the railroad company to exercise additional caution in approaching the crossing, and such duty would be commensurate with the peril to which travelers would be exposed who, with due care, were about to make the crossing, and in such a way as to give travelers an opportunity, by exercising due care and diligence, to meet and guard against the danger; and, if you find from all the evidence in this case that, under such circumstances, defendant did not exercise additional caution in approaching the crossing, then and in such case defendant would be guilty of negligence.” Read in connection with that part of the argument of counsel which has been quoted, no one is left in doubt concerning plaintiff’s theory. I am impressed' that no such theory as this is indicated in the declaration — a point, however, which is not made by appellant. Assuming that the declaration may support the verdict and judgment, and that facts sustaining the theory would support a finding of negligence on the part of defendant, the theory is not supported by facts. The train which caused the injury was usually late, passing through Gregory at different hours during the afternoon and evening without stopping. The passenger train, on the time of which the freight was running, was very often late. Upon these points there is no dispute. The fact that the train was a freight train running close to the announced or schedule time of the passenger train, that it was traveling at a high rate of speed, and that it did not stop at the station, are none of them necessarily evidence of negligence. Gregory is a village of 175 people; its business places, few in number, being mostly south of the railroad. Its single business street is 78 feet wide. As has been stated, the station was 48 feet east of the street. There is then an open space of 192 feet along the track to the elevator, which stands 17% feet south of the south rail. The elevator was 84% feet in length, east and west. East of it, 8% feet, is a coal shed 36% feet long, east and west, standing 18 feet south of the south rail. East of this, 15 feet, is a freight depot 50% feet long,, east and west, and 20 feet, north and south. Then, in this order, was a 90-foot coal shed, the stockyard, the east fence of which was 691.5 feet from the center of the crossing, a tool shed 1,052% feet east of the crossing, and the east crossing, which was 1,350% feet from Main street. There are no buildings south of the station along the east line of the street for 174.5 feet, so that, looking easterly, or northeasterly, plaintiff’s intestate could see, while traveling the most of this distance, the west end of the elevator. There was nothing about the traffic on this street to call for particular care on the part of defendant’s servants, exciting them to do more than to give the crossing and station whistles and keep the bell ringing. Plaintiff cites in the brief, and relies upon, Marcott v. Railroad Co., 47 Mich. 1 (10 N. W. 53); Battishill v. Humphreys, 64 Mich. 494 (31 N. W. 894); Guggenheim v. Railway Co., 66 Mich. 150 (33 N. W. 161); Klanowski v. Railway Co., 57 Mich. 525 (24 N. W. 801); Hagan v. Railroad Co., 86 Mich. 615 (49 N. W. 509); Morse v. Railway Co., 168 Mich. 99 (133 N. W. 935); Detroit, etc., R. Co. v. Van Steinburg, 17 Mich. 99; Huggett v. Erb, 182 Mich. 524 (148 N. W. 805). It is, no doubt, the rule that the rate of speed at which trains may be properly — ■ prudently — operated depends upon circumstances. Speed which would be prudent in the open country would be imprudent, generally, in and over the streets of a city. And as people and animals do sometimes go upon railroad tracks, and sometimes find themselves in peril upon highway crossings, a lookout'from the engine is necessary that disaster may be, as often as is possible, averted. Nor may one in plain view upon the tracks, especially if that one is an infant, be run down by a train, but the train must be oper ated as the circumstances seem to require. Statutory signals must be given, and it is negligence not to give them. So much, in substance, and no more, the cases cited above hold to be the law. A witness sworn for the plaintiff saw the plaintiff’s intestate, whom he knew, and a. boy who was with him, when the team was unhitched, and they got into the wagon. He stood by the side of the wagon and talked with Wood, the deceased. The witness heard the train (he was intending to take the passenger train) at about the time the team started. The train whistled, and the witness started diagonally across the street to the east side and followed the sidewalk north towards the railroad. “I could hear the noise of the train,” he says, “coming all the time after I struck the sidewalk, but could not see it. The train was right in front of the elevator when it whistled. I think it whistled more than once when it was right by the elevator. I couldn’t say how many times. I didn’t know it was a freight train up to that time. I continued on my way to the passenger house. I saw Mr. Wood after he and I parted. He was driving along the street towards- the railroad. I couldn’t say whether he or the boy were driving. When the train came by the elevator I think Mr. Wood’s team was nearly on the track. By that I mean nearly on the rails. I heard the train whistle about the same time that I saw it by the elevator. I couldn’t say whether there was any place where you could see the train or not before it got west of the elevator. I didn’t see it before it got west of the elevator. About the same time I saw it I heard it whistle. At that time Mr. Wood’s horses were nearly on the track. I couldn’t tell exactly because I just glanced that way. I saw Mr. Wood stand up in the wagon as though he was trying to urge the team. I didn’t watch it all the way, because I was looking first at him and then at the train. I was probably 50 feet from the railroad track. I saw the engine strike the wagon at the crossing. I think it struck about in the middle. I couldn’t say how fast his team was going as he crossed over the track. From my experience in riding on trains and automobiles and things of that character I have some judgment of the speed at which trains pass. I think this train was going at least 40 miles an hour. After it crossed Main street I should think it stopped a full train length west of the crossing. I saw both. Mr. Wood and the Backus boy after the accident. I went directly up to the Main street crossing after the accident. I didn’t see the team, but I saw the box part of the wagon. I noticed that more than anything else. It was south of the track and against it, on the west side of the street. It was over near the fence; that is, the fence down to the cattle guard. It was probably 20 feet south of the track. Mr. Wood was found, I should say, about 50 feet west from the crossing, maybe farther, maybe not quite so far. He was dead when found. The Backus boy was found on the pilot of the engine sitting up. He was dead when found. I took the passenger train that night for Jackson. The regular passenger train going to Jackson had not arrived at the station in Gregory when this freight train went through.” On cross-examination the witness testified: “I think I was walking about 4 miles an hour. About the time I saw this train I heard it give a .couple of blasts of the whistle. I think two, anyway. About the same time I got a report of the whistle I saw the reflection of the headlight as it came into view. The headlight on the engine was lighted. I observed the train part of the time as it came into view from the westerly end of the elevator. I was probably looking at the train and team both. I think I was paying attention to what was occurring there. I didn’t do anything. There wasn’t anything I could do. I couldn’t say whether I called to Mr. Wood or not; I probably did. I couldn’t say whether I said anything to him or not. About the time the train came from the east corner of the elevator Mr. Wood’s horses were just going onto the track. I couldn’t say whether they were right on the track or near to it. I was looking at them just after I observed the train come from the west end of the elevator. I saw Mr. Wood stand up in the wagon. He was standing up at the time I looked. I didn’t observe him get up. “Q. What was he doing? “A. He was trying to — just as though he was trying to urge his horses across the track. “Q. Was it light enough so you could see that? “A. Yes, sir. “Q. Did you see him strike his horses? “A. Well, striking at them with something; I could see.” A witness for defendant testified, “I am 51 years of age. I have lived in Gregory about 23 years now. I have been employed for the last few years as section hand for the Grand Trunk Railway Company. I was working for that company in the month of November, 1912. I have been working for them 5 years last fall. I am working for them now in the capacity of section man. I was in Lawrence McClear’s meat market on the night of November 25, 1912, between the hours of 7 and 8 o’clock. That store is on the west side of Main street towards the extreme south end of the business portion of Gregory. It is next to the hardware. I don’t remember now who else was in the store with me. I knew William R. Wood in his lifetime, and have seen Win-field Backus some few times that summer. I didn’t see Mr. Wood or this Backus boy that night until after the accident. At the time I was in McClear’s store I did not hear any noise or signal which was given by an approaching train. I live 80 rods east of the crossing, in the village of Gregory. That would practically bring me down to what has been called in this record the east crossing. I live 18 rods from this east crossing. I live across the street from George Meabon. In going from my home to the business part of the village of Gregory, and coming from the business part of the village back to my home, I usually go down the walk to the railroad, down the railroad home; that is, down the walk to Main street to the depot, then east on the right of way to the east crossing, then south to my home. On this night in question I had started home before I heard any train. I didn’t hear or didn’t notice any train until I got within probably 60 feet of the railroad. Up to this time I hadn’t seen Mr. Wood or this boy. When I got to this place I heard the train whistle. I could see it as I looked up. It was just about at the stockyards. All I heard was two short blasts. I could hear them distinctly. There was no one with me. After I heard those two blasts of the whistle I looked up and saw the train. I could see the headlight; it was burning. When I saw the train it was about in front of the freight shed. I did not hear any other whistle afterwards. I could hear the roar of the approaching train running on the rail. I was just walking along leisurely at this time. I looked up right away and saw the wagon coming up by the side of me on the street. I was on the sidewalk, on the east side of Main street. The team was then just about abreast of me in' the highway. I did not know then who was in the wagon. The team was traveling along leisurely. That was the first I had seen of the team; I saw them as they approached the track. They were still trotting. “Q. As you saw them as they were approaching the track, state whether or not they had increased their speed or diminished it from what you saw before? “A. I calculated they was considerable faster. I didn’t say anything at that time. When I first Heard them I hollered. I simply hollered, ‘Whoa!’ and looked back to the train again. As I passed along toward the depot I saw the outline of the train as it came in. From the time I first heard this whistle down until that time I could still hear the noise or the roar of the incoming train. I heard the noise from the brakes or wheels of the train as it was passing in front of me. I heard the grating of the brakes and saw the sparks — the fire from the wheels on the rails. That was when the wheels were setting on to the rails. I didn’t hear any crash there, nor did not see what the men were doing in the wagon. I went right along into the depot to speak to the agent. I calculated there had been an accident. I went back and hunted for the man with the rest of them. There was another party there at that time; I didn’t know who the party was at that time. The agent spoke to me; then another man stuck his head in the door and said, ‘There is a man killed.’ He was behind me. I didn’t look around to see who it was. He was gone in an instant. Then I went back over to the scene of the wreck. I saw the train crew that night. I saw this flash of fire as it has been described here by some of the witnesses. It was a flash of light along the engine just after it passed a crossing. It was just a flash back and forth. It covered nearly the whole top of the boiler clear through the length of the engine. I didn’t notice that .the train crew had received any injuries until I saw them the next morning in Gregory. I saw that the engineer’s' eyebrows were burned, but did not notice anything particularly different with the fireman. I think this local freight, No. 43, was scheduled to come into Gregory at 2:20. That train was nearly always late. I have known it to stay there overnight; to be tied up. I have known of its getting in so late it would be clear over into the evening when they came in very often. I have known of the passenger train which was scheduled to come through there at 7:30, No. 29, the one going from the east to the west to Jackson, being late. It’s hardly ever on time. It’s very often late; anywhere from five minutes to a couple of hours. When the passenger train, No. 29, comes into the station to discharge and take on its passengers the engine or tender of that train nearly always covers the Main street crossing. That was quite often true prior to the month of November, 1912. When it laid across the Main street crossing it would block traffic going up and down that street.” On cross-examination he testified: “When I heard the whistle I saw it down past the elevator, down by the freight house. At the time I saw the train after it whistled it was down by the freight shed. I saw it almost the same instant I heard it whistle. At that time I looked up and this wagon was coming along behind me, and the horses were about opposite me. I have never measured the distance from there down to the crossing. I should think it would be 390 feet. When I first saw the wagon they were driving along leisurely, and at that instant I hollered, ‘Whoa!’ I didn’t know it was going straight through until after that. As soon as I hollered I looked back to see whether it was coming straight through. I couldn’t see whether it was a freight train when I hollered. I could see the headlight; that was all. I don’t know whether they heard me. They didn’t respond or indicate that they heard me. If this train was running 42 miles an hour, which was its rate from Gregory to Pinckney, it probably would take about four seconds for it to run from the freighthouse to the crossing. Mr. Wood was nearly over the track when the train struck him. I didn’t know the train was going that fast. I have said it was as far as 300 feet, but I never measured it. I have given my best judgment on these matters. When the train went across the crossing I could hear the brakes grind on the wheels, and they were set so tight that even the fire was flying off from the wheels. That train didn’t run quite 960 feet west of that crossing before it stopped. I didn’t measure it, but I have counted the rail lengths beginning right at the center of the crossing, at the traveled track, to where the pilot of the engine stood when the train stopped. I counted 30 rail lengths, each 28 feet long, making 840 feet. Notwithstanding the fact that those brakes were shut so tight that when it ran across that crossing the fire was flying, that train ran 840 feet before it stopped. At the rate of speed that train was going I think it made a good stop. I counted eight or nine cars in that train without the caboose, engine, and tender. They were claimed to be loaded. When they stopped the whole train was west of the crossing. I don’t know how far it was from the driveway across Main street to the caboose beyond the fence by the cattle guard.” A considerable number of witnesses gave testimony to the effect that they heard the signals given by the train, not only those given when it reached the elevator, but signals given when it was east of what was called the east crossing. If the question of defendant’s negligence is at all doubtful, there can be no doubt about the carelessness of plaintiff’s intestate. There was much at the time which demanded particular care on his part. The conjecture indulged by his counsel is that, knowing, as many others did, that the train was coming, he believed it to be the passenger train, that it would stop at the station, and that he speculated upon the chances of being able to cross the track ahead of it, resolving the speculation in favor of trying to do so. Plaintiff may not assume that his intestate had the knowledge imputed to him to sustain a recovery and exclude the assumption that he also had knowledge of other facts, which have been stated, connected with the running of trains. There is no basis for such a distinction. Mr. Wood did not stop, and it requires no argument to prove that the reasonably prudent man would have stopped. In approaching and passing the station, the fireman was putting in coal, and only the engineer was on the lookout. And it is argued with much earnestness that the lookout was insufficient, and, considered with reference to the speéd of the train, wantonly careless, reckless conduct of the train crew may be found. There is no testimony tending to prove that the predicament in which the injured man placed himself was discovered, or that his intention to cross the track could have been discovered, in time to avoid the collision. A little increased speed of the train would have saved the unfortunate man in this case quite as effectively as a lessened speed. This is true in most of such cases. By what rule, then, shall railroad trains be operated? If in such manner that injury to one acting as plaintiff’s intestate may be avoided, what will that manner be? The law has provided, for the safety of those upon the highways, that certain signals shall be given by approaching trains; that warning signs shall be erected. The rule has been long in force that, because a railroad is itself evidence of danger, and because trains are run at speed, and cannot turn out for travelers, the traveler shall stop, look, and listen before attempting to cross the track. The safety of those upon trains, as well as those upon the highways, is considered in these statute precautions and in this rule. The rule of look and listen, under the circumstances disclosed, is not a mere rule of evidence, but a rule of conduct — a rule of law. White v. Railway Co., 147 Wis. 141 (133 N. W. 148). See, also, the large number of cases digested in 4 Mich. Digest, Annotated, tit. “Railroads,” §§ 327, 328. The defendant observed the statute precautions, and, although this will not in all cases absolve it from responsibility, I am unable to find in the facts in this case reason for requiring greater care than was exercised. In its principal features the case is not unlike the one of Peck v. Railway Co., 155 Mich. 430 (119 N. W. 578). In my opinion, contributory negligence was, as matter of law, established, and upon both points which have been discussed the court should have directed a verdict for defendant. ■ The judgment is reversed. Brooke, C. J., and McAlvay, Kuhn, Stone, Moore, and Steere, JJ., concurred with Ostrander, J. Bird, J., concurred in the result.
[ -32, -11, 34, -20, -10, -32, 25, 0, 19, -4, -16, -40, -1, 60, 11, 2, -41, -26, -31, 21, -49, -39, -48, 6, -23, -45, 38, -9, -57, -15, 17, 29, -27, -17, 1, 25, -16, 10, 31, 23, 16, 4, 9, -16, 8, 15, 31, -20, 13, -36, 36, -10, -17, 13, 57, 16, 45, 20, 30, 39, 33, -80, -33, -16, -12, 27, 15, 19, -58, -14, -20, -7, 38, -12, 38, 25, -35, 18, 3, 7, 8, 1, 32, -18, -42, 14, -19, -64, -3, -24, 12, -15, -15, -14, 22, 8, 5, 41, -45, 1, -36, 1, 8, 6, -9, 13, -18, -39, 3, -38, 0, 53, 45, 18, -15, 7, -34, -72, 20, 41, 24, -63, 3, 2, -33, -12, -87, 83, -2, 13, 45, -13, -11, 52, 53, 4, -26, -59, -8, -42, 15, 38, -31, -43, -10, -20, -6, -2, -17, -1, -42, 41, -28, -55, -18, 10, -1, -43, 23, -23, 89, 40, 32, -49, -21, 3, -28, -68, -28, 8, -24, -10, 43, -2, 57, 17, -12, 2, -49, 0, -10, 25, -13, 16, -77, -54, 3, 35, -55, 57, 34, -53, 10, -58, -55, 46, -8, -33, -27, 74, 15, -10, -30, -30, -43, 5, 30, 10, 21, 18, 25, -75, -19, 14, -37, 1, -31, -21, 1, -47, -6, 28, 9, -23, -8, -44, -19, 2, -7, 29, -2, 32, 15, 58, -12, -54, 13, -48, 16, 10, 62, -16, 4, -42, 6, 5, -19, -35, -20, 55, -21, -21, -37, -25, 23, 47, 43, 0, 2, -69, 35, 27, -29, 85, 19, 13, -4, 21, -19, -35, 12, -51, 86, -59, -17, -22, 19, 19, 0, 12, 83, -2, -44, -14, -15, -11, -21, 43, -36, -11, 0, -31, 0, 29, -9, 32, 2, 28, 31, -17, 25, 10, -32, -16, 18, 3, -28, 6, 37, 9, -22, -28, 10, -62, 50, -2, 9, 2, 37, -12, -60, 3, -48, 0, 50, 77, -18, -12, 21, 65, -11, 44, 26, 35, -12, -55, -33, -1, 23, -30, 35, 19, -3, -13, 6, -4, 47, 34, 7, 8, 1, -16, 45, -54, -29, -26, 7, -19, 30, -1, 10, -21, -28, 21, 23, -98, -7, -13, -44, -3, 16, -19, 28, -11, 51, 5, -19, 45, 0, 55, -21, 20, -5, -20, 39, 7, -54, -28, 10, 74, -18, 11, 35, 23, 23, 0, -20, 11, -70, 0, -10, 0, 13, -31, -5, 14, -7, -4, -17, 12, 1, -36, 69, -16, 27, 6, 17, 11, -45, 18, 59, 15, 35, -18, 31, 13, -6, -3, -23, -29, 58, -18, 9, 17, 9, 14, -16, -4, -30, 3, -26, 8, 55, -14, -28, 5, -49, 30, 48, -4, 28, 1, -19, 44, -35, 32, 15, -17, -6, 5, -10, -14, -4, 56, 14, -19, -21, 9, 76, 21, 8, 16, 7, 11, -5, -34, -11, -41, -4, 36, -35, -42, -18, 2, -9, -38, -3, -11, 51, -9, 10, 34, -57, 10, -43, -2, -7, -5, 18, 20, -70, -23, -3, -30, 25, 24, -11, -27, 0, -15, 21, 4, 25, -2, -7, 23, -101, -36, -6, -38, 25, -43, -10, -23, -13, 8, 58, -18, 10, 8, 22, 22, 24, 18, 10, -51, -14, 4, 17, -17, 7, -37, 46, -41, -31, -33, 3, -69, 3, -29, 41, -38, 8, -57, -7, -16, -27, -61, 20, -65, 37, -16, -3, -14, 38, -32, -16, 15, -19, -54, -2, 18, -10, -10, 6, 39, -16, 8, -34, 0, 2, -1, -9, 29, 7, 20, -21, 2, -62, 56, -3, 44, -16, 34, 45, -9, -27, 40, 52, 14, -16, -32, -24, 8, 43, 4, -56, 12, 4, 31, 31, -17, 42, 48, -6, 4, -26, -24, 0, 5, -28, -21, -19, 17, -49, -18, 38, 31, -15, 1, -27, 0, -82, 14, -5, 45, 14, 15, -1, -20, -15, -31, 47, -28, -39, -80, -63, 1, -20, 27, -77, 22, -15, -18, -51, 6, 17, -4, -57, -53, 54, -4, -33, 9, -40, -6, -13, -9, 5, 13, 103, -69, -43, -32, 2, -49, 4, 24, 21, 35, 40, 7, 26, -33, 5, -1, -8, 49, 61, -44, -17, 8, 5, 77, -28, -1, 39, -32, 10, 3, 11, 37, -3, 13, -35, -3, 0, -34, 15, 0, 26, -17, 4, -4, -7, 40, 48, -31, -17, 48, -4, 0, -9, -69, 21, -14, 47, -40, 0, -15, -1, 12, -5, 21, -9, -8, 22, -13, -41, -26, -30, -47, 47, 20, -21, 27, -25, -19, 12, -24, 29, 56, 51, -39, 7, -55, 37, 48, -14, -72, 45, 9, -2, 34, -21, 19, 33, -6, -6, -10, 9, 13, -30, -8, -1, 36, 20, -2, 16, 8, 18, 2, 13, -2, 24, 0, 2, -36, -2, 20, 1, -12, 31, -2, -25, -30, 2, 46, 27, 9, 9, 32, -27, 87, -34, 11, 34, 51, 40, 60, 19, 3, -11, -29, -17, 14, -9, 40, -12, 53, -29, 63, 38, -26, -21, -10, 35, -30, 36, -21, 26, -26, -29, 0, 28, 20, 26, 13, -36, 16, 45, 29, 9, 1, 14, -27, 29, 24, 17, -23, -3, -74, 17, -24, -40, -40, 25, -11, -10, 93, -10, -37, -61, -32, -29, -18, -39, -20, -37, -4, 31, -28, 13, -12, 1, -11, 18, -19, 6, -33, -15, -55, -17, 35, -23, -1, 4, -64, 55, 14, -27, -16, 10, 65, 3, -26, -58, 67, 30, -3, -11, 18, -2, -13, -73, -54, -11, -11, -32, 13, 24, 0, -45, -54, -34, 42, -59, 17, 24, -10, 8, -9, 30, 5, -64, 17, -3, 37, -9, 59, -23, -27, 8, -53, 57, 17, 3, 0, 29, 36, 43, -19, -35, 47, 30, -7, 28, -19, -8, 22, 22, -20, 25, 35, 34, 26, 2, -46, 30, -3, 74, -7, 75, 11, 63, -38, 28, 22, 31, -38, -53, 22, 14, -69, 11, -56, 52, 31, 7, -33, 6, -33, -26, 60, 5, 7, 6, -13, -44, 96, -22, -14, -23, 21, 12, 6, -5, -29, -51, -69, 12, -62, -9, 72, 59, -14, -7, 15, -9, 17, -50, 16, 27, -15, 43, 96, 31, -1, 20, -18, 0, 57, 7, 5 ]
On Remand Before: Danhof, C.J., and Beasley and Cynar, JJ. Cynar, J. Plaintiff, Elizabeth Wilcox, appealed from the child custody provision as well as the property settlement and alimony in gross award in a judgment of divorce granted by the Ingham County Circuit Court. The trial court ordered joint custody of the two children to be held in the plaintiff and defendant with the parties to exchange physical custody of both children weekly unless the parties agreed otherwise. On appeal, the Court of Appeals on September 15, 1980, affirmed the property settlement and alimony in gross provisions, as well as the joint legal custody in both parents. However, we reversed the joint physical custody determination and awarded physical custody of both minor children to plaintiff, Elizabeth Wilcox, subject to reasonable visitation rights in the defendant, Kent Wilcox. Further we remanded this case to the trial court for a determination of child support and reasonable visitation rights. 100 Mich App 75; 298 NW2d 667 (1980). On April 1, 1981, on order of the Michigan Supreme Court, the motion in propria persona by defendant for immediate consideration was granted and applications for leave to appeal were considered and, pursuant to GCR 1963, 853.2(4), in lieu of leave to appeal the Supreme Court (docket nos. 66039 & 66042) vacated the Court of Appeals judgment and specifically remanded the case to the Court of Appeals for reconsideration in light of the new legislation concerning joint custody, 1980 PA 434. The child custody-joint custody Public Act No. 434 took effect January 14, 1981. 411 Mich 856 (1981). The parties to this divorce action were originally married on October 5, 1968. The plaintiff’s previous marriage terminated on December 11, 1965, as a result of her husband’s accidental death. From her first husband’s death the plaintiff received a $15,000 life insurance settlement, which she invested in the construction of a seven-unit apartment building on Woodruff Street in Lansing, Michigan, about two years before this marriage. In addition, the plaintiff received a $27,000 workers’ compensation settlement, of which $9,000 was given directly to her and the remaining $18,000 placed in the probate court for the benefit of the plaintiff’s daughter, Marni, a child of the first marriage. The parties herein purchased a house, the present marital home, which required a down payment of $8,000. The money to meet the down payment came one half each from the workers’ compensation settlement of the plaintiff and her daughter. The remaining $5,000 from the plaintiff’s settlement was used for the purchase of furniture and other household items for this home. The plaintiff also drew $113 per month in social security benefits for her first child, which figure was raised to $130 per month in 1976 and thereafter to $183 per month. The parties also acquired a rental building unit on Kate Street in Holt, Michigan. This property was acquired without a cash deposit by either party and was transferred to the plaintiff in lieu of real estate commissions owed to her by a previous employer. The parties stipulated to the value and remaining mortgages on each of the three properties involved herein. The Woodruff Street apartment building was given a present value of $120,000 with a $50,000 mortgage on it, thus leaving an equity in the property of $70,000. The marital home on Hayford Street, in Lansing, Michigan, was given a value of $40,000 with a $20,000 mortgage, leaving an equity of $20,000 at that time. Finally, the Kate Street rental unit was given a value of $38,000 with a $35,000 mortgage, resulting in a $3,000 equity. The income of these parties varied over the years. In addition to the workers’ compensation and social security benefits outlined above, the plaintiff conducted a day-care facility in the marital home, which earned between $1,000 and $1,500 annually. She also received amounts varying between $3,100 and $7,600 annually from her real estate work. The defendant testified that during the period of the marriage his income contribution was $4,898 of an adjusted gross total of $6,173 in 1969. In subsequent years his contributions were $6,245 of an adjusted gross total of $8,081 in 1970, $79.04 plus nontaxable GI Bill benefits of an adjusted gross total of $3,928 in 1971, $3,276 of an adjusted gross total of $4,567 in 1972, a gross income of $10,200 in 1973, $4,614 of an adjusted gross total of $12,270 in 1974, a gross income of $10,000 in 1975, a gross income of $16,281 out of an adjusted gross total of $17,757 in 1976, and in 1977 a gross income of $21,495 of an adjusted gross income of $24,788. At the time of this action, the plaintiff was employed in the Ingham County Clerk’s office at an annual gross salary of $8,655. She also received $50 per month as rental income. The defendant was, at that time, employed with the Michigan Consumer Council at an annual salary of $27,000. In its disposition of property, the trial court awarded to the plaintiff full title to the marital home and the Woodruff Street apartment building. The parties were each given one half of the equity in the marital home ($20,000). However, the plaintiff was not required to immediately sell the home and tender to the defendant his portion of the equity. His equity was secured by a mortgage on the house and was not made payable until the plaintiff moved, sold or assigned her interest in the home, remarried, died or when the youngest child of the marriage reached 18 years of age. The trial court also gave full title of the Kate Street property to the plaintiff. The court totaled the equities of this and the Woodruff Street property as being $73,000. The court then deducted $15,000 for the benefit of the plaintiff, based on her original investment in the property just prior to the parties’ marriage. The remaining equity in the property, $58,000, was awarded in equal shares to each party herein. From the defendant’s share of $29,000, the lower court subtracted $7,500 as alimony in gross to be paid to the plaintiff, leaving the defendant with a total of $21,500 in equity from the Woodruff and Kate Street properties. The defendant’s equity was made payable under the same limitations as that for the marital home. As a result of the division of property above, the plaintiff received title to all three of the properties involved in this appeal. Out of a total $93,000 equity in the three properties, the plaintiff received a total share of $61,500 and the defendant $31,500. In addition, the defendant’s ultimate share is fixed and can only increase based upon a nine percent interest rate. If the properties increase or decrease in value, the plaintiff’s share of equity will take a corresponding rise or fall. The authority of the trial court to divide marital property between the parties to a divorce arises under MCL 552.19; MSA 25.99, and the court’s authority to order alimony is statutorily provided in MCL 552.23; MSA 25.103. It is well settled that a division of marital property or an award of alimony is a matter within the discretion of a trial court. Johnson v Johnson, 346 Mich 418; 78 NW2d 216 (1956), Pinney v Pinney, 47 Mich App 290; 209 NW2d 467 (1973), Van Ommen v Van Ommen, 25 Mich App 652; 181 NW2d 634 (1970). In Johnson, supra, 431, the Supreme Court held: "The division of property in a divorce action is not governed by any rigid rules or mathematical formula. Each case depends on the particular facts involved. "The portion of property awarded to each party depends upon all the equitable factors involved, including the following: source of property, contribution towards its acquisition, the years of married life, the needs of the parties, their earning ability and also the cause for divorce.” Further, this Court will not reverse an award of property or alimony unless it is convinced that, had it occupied the trial court’s position, it would have reached a different result. Paul v Paul, 362 Mich 43; 106 NW2d 384 (1960), Simmons v Simmons, 58 Mich App 480; 228 NW2d 432 (1975), Feldman v Feldman, 55 Mich App 147; 222 NW2d 2 (1974). Although a property award need not meet any specific numerical standard, it "must be fair, in light of the overall financial circumstances of the parties”. McDermott v McDermott, 84 Mich App 39, 41; 269 NW2d 299 (1978). We do not find any reversible error in the trial court’s decision to award alimony in gross to the plaintiff and in the division of the marital property. Under MCL 722.26a; MSA 25.312(6a), at the request of either parent, the court shall consider joint custody, and shall state the reasons for granting or denying the request. Should the court otherwise consider joint custody, the court shall determine whether joint custody is in the best interests of the child by considering the "best interests of the child” factors as well as whether the parents will be able to cooperate and generally agree concerning important decisions affecting the welfare of the child. The above-stated as well as other applicable provisions under Public Act No. 434 necessitates a factfinding by the trial court. We vacate that portion of the circuit court divorce judgment concerned with custody and remand the case to the circuit court for reconsideration of its custody provision in light of the child custody-joint custody Public Act No. 434 with instructions for taking additional proof if deemed needed by the trial court. The trial court is to make its finding of fact and decision concerning custody within 60 days from the date of this opinion. The judgment of divorce is affirmed in part and vacated in part in accordance with this opinion. We retain no jurisdiction. Danhof, C.J., concurred.
[ -33, 11, 19, -11, -28, -55, -8, -13, 1, -34, -34, -28, -19, -36, 30, -30, -8, 38, 23, -9, -16, 25, -17, 46, 34, 52, 26, -53, 33, -10, -35, -44, 19, 3, -9, -3, 39, -18, 27, 15, 19, -15, -6, 19, -41, -55, 33, 0, 3, -2, -9, -37, -17, 26, 43, 27, 10, 12, 10, 14, -11, 17, -48, 47, 27, 22, 47, -4, 21, 11, 48, -52, 5, 22, 34, 24, -33, 33, 4, 24, 35, -31, 10, 14, 43, 36, -12, -17, -24, 18, -12, 35, -67, -61, 36, 52, -26, -36, -34, 41, -21, -22, 50, 24, 13, 15, 35, 10, -32, 28, 63, -14, 17, -2, -17, 10, -19, -26, 0, 34, -24, 55, 64, 55, 28, 9, -63, -13, 44, -22, -27, 0, -20, -31, 27, -8, 52, -11, -31, -40, -16, -19, 22, -28, 38, 0, -7, -56, -9, -65, -16, 9, 0, 44, 45, 6, -14, -15, 0, 0, 4, -12, 0, 23, -15, -73, 58, 10, -14, 6, 79, -35, -12, 0, 43, 52, -1, 38, -37, -1, -14, 31, 2, -17, -30, -6, 31, -9, -62, -14, -20, -14, -24, 20, 23, 14, 19, 55, -7, 19, -61, -59, 54, -4, -15, -52, 41, -22, -12, -30, -38, -1, -36, -9, -42, 22, -5, 27, 7, -4, 33, -34, 54, 7, -74, -12, -18, 10, 79, -32, 40, -18, 15, -9, -31, -1, -45, 11, 21, -1, 1, -43, 0, -30, 51, 41, -26, 29, 46, 14, 9, -12, -55, 14, 5, -27, -9, 10, -13, 25, -22, 23, -39, 16, 13, 16, 20, -41, -49, -5, -14, 24, 9, -64, -42, -22, -12, 0, 26, 46, -4, 6, 3, 46, 10, -6, 21, -6, 28, 23, -16, 4, 25, -45, 11, -43, -32, -40, -7, 4, -52, 24, -23, 17, -19, 5, -17, -23, 40, -10, 24, -35, 60, -14, 18, 11, -40, -40, 1, -27, 6, 16, -3, 16, -55, 34, 3, 21, -21, 2, -67, -6, 14, 7, -35, 18, 36, -2, 35, 14, 27, 8, 8, 7, 9, -45, 24, 24, 39, 11, -28, -25, -1, 16, -55, 34, -14, 5, -3, 55, 11, -2, 4, 5, -33, 33, 22, -4, -7, 4, 22, 8, -17, 54, 17, -14, -32, 36, 31, 26, -20, -18, 44, 40, 31, 3, -35, -10, -5, -29, -5, -24, 35, -7, 3, -22, -15, 2, -3, 7, 3, 17, -3, 52, -36, -26, 54, -56, -17, -42, 26, -36, -31, 54, 15, 0, -8, -48, -34, -8, 8, 32, -56, -40, -8, 8, 15, -23, 33, 8, -25, 61, 10, -4, 80, 12, -71, 8, -43, 47, -57, 44, -39, 2, -37, -3, -50, -35, 42, -8, 41, 4, -25, 41, -61, -33, -2, 21, -13, -19, 64, -24, 80, -22, -7, -93, -41, -8, 0, -10, -12, -9, -14, 11, 17, 11, -6, -4, 10, -35, -8, 16, -119, 11, -3, 35, -97, -26, 16, -6, -21, -53, 34, 65, -21, 0, -27, -52, -24, -64, -5, -9, 40, -9, 55, -52, 24, 36, -31, -27, -31, -20, 23, 29, -32, 28, -1, 12, 27, 2, -64, 40, 8, -16, 34, 50, 29, -38, -59, 70, -4, 68, 5, -37, -9, 13, -7, 5, 35, 5, 40, 5, 6, -47, -19, 0, 0, -16, -1, -7, -1, -24, -14, 0, 0, 7, -21, 59, -16, -41, -2, 22, 11, -10, 28, -41, -28, -38, 8, 25, -3, 33, 55, 12, 14, -14, -30, 11, -63, -13, -36, 48, 23, 29, -41, -14, 30, 40, 10, -18, -79, 3, 11, -5, -10, -50, 31, -27, -7, -27, 12, -9, -3, -14, -22, 19, 42, 66, 20, -35, 19, 36, -42, -8, -9, 7, 0, -14, 2, -12, -4, 14, -35, -14, -14, 4, 24, 29, -15, 59, 5, -6, 8, -17, -1, 11, 2, -14, -10, -31, -34, 52, -12, 9, -1, -50, -13, -23, -24, -10, -1, 68, -33, -6, 26, 0, 23, -19, 4, 1, 37, -8, -8, 40, 23, -18, 18, 7, 56, -22, -51, 34, 41, 4, 13, -19, 29, 22, 49, 26, 21, 51, -33, -49, 20, 16, 58, 6, 5, 11, -17, 13, -60, 67, -12, 1, -36, 53, -52, 21, -20, 8, 29, -5, -49, 26, 20, 40, 3, -36, -33, 55, -1, -9, -19, 6, -43, -30, -7, -59, -50, 14, -21, -26, -21, -8, 8, -59, 14, 8, -23, -1, 1, -29, -19, 20, 10, 39, -19, 60, 13, -31, -15, -15, -17, 55, 49, 36, 24, 12, -30, -4, -13, 19, -11, -8, 35, -23, -1, 20, -12, -15, -32, 59, -28, -38, -14, -27, 43, -28, -52, 15, -19, 30, 5, -43, -48, -13, -25, -25, -35, -36, 53, -6, 22, -37, 60, -66, -5, 8, -37, -28, 30, -22, 54, 56, -26, -8, 17, -26, 25, 48, 14, 27, 11, 16, -52, 1, 9, 26, -9, 6, -13, -12, 1, 5, 15, 30, -2, 14, 14, 18, -14, -41, -19, -9, 63, 16, 0, 5, -24, -1, -3, 4, -32, 10, 54, 36, -10, 36, -13, -11, -27, -21, 48, 12, 24, 15, 78, -15, 31, -44, -6, 48, -16, 7, -30, 44, 7, -34, -33, 18, 5, -9, -14, -20, 9, 1, -24, 40, -5, -70, -10, -6, -46, -51, 58, 1, -52, 27, 9, 27, 5, -13, -14, 21, 12, 2, -46, -33, 38, 50, 5, -4, -39, 10, -6, -37, -32, -32, -13, 8, -17, -20, 40, -7, -19, 15, 16, -31, 18, 25, 12, 28, -12, -17, -4, -27, 15, 3, 50, -5, -20, -37, -30, -22, 9, -24, -45, 55, -48, 9, -97, -15, -4, -74, 32, 8, -3, -23, -6, 0, -26, 32, -20, 1, 59, -6, -4, -33, 24, 0, 13, 42, -23, -44, 24, -10, -46, 69, 3, 48, 8, 22, -2, -55, -20, 46, -6, -20, -12, -5, -16, -19, -18, -33, 5, 30, 37, 18, -31, -21, 12, 57, -40, -27, -33, -30, -64, -7, -11, -8, 41, 4, 2, 37, -11, -19, 17, 12, 35, 26, 14, 56, -7, 4, -45, 33, -41, 0, -2, 86, -8, 0, 28, 38, -73, 10, -34, -15, 14, 12, 33, 21 ]
M. J. Kelly, P.J. Plaintiffs initiated this action, seeking an injunction to restrain defendants from establishing a certain house- as a child caring institution pursuant to MCL 722.111 et seq.; MSA 25.358(11) et seq. In a brief opinion accompanying its December 16, 1980, order imposing the requested permanent injunction, the trial court held that this statute did not permit "the licensing of state operated residental child caring facilities”. Thus, reasoned the court, a state run (as opposed to state licensed) facility could not partake of the benefits of § 16a(2) of the Township Rural Zoning Act, MCL 125.286a(2); MSA 5.2963(16a)(2), which makes "a state licensed residential facility” with six or less persons a "residential use” sufficient to meet local zoning restrictions. The defendants appeal as of right and argue that a state operated facility which must be "evaluated and approved” but not licensed, MCL 722.116; MSA 25.358(16), should be included within the zoning act’s definition of residential use the same as private licensed facilities. The dispute herein involves three primary statutes. The first is MCL 722.115(1); MSA 25.358(15)(1) which imposes a licensing requirement on those persons or organizations desirous of opening a child care facility. In pertinent part, the statute provides: "A person, partnership, firm, corporation, association, or nongovernmental organization shall not establish or maintain a child care organization, unless licensed or registered by the department. Application for a license or certificate of registration shall be made on forms provided, and in the manner prescribed, by the department. Before issuing or renewing a license, the department shall investigate the activities and proposed standards of care of the applicant and shall make an on-site visit of the proposed or established organization. If the department is satisfied as to the need for a child care organization, its financial stability, the good moral character of the applicant, and that the services and facili ties are conducive to the welfare of the children, the license shall be issued or renewed.” The correlative requirements for state or local government operated child care centers differ from those imposed on private facilities. Specifically, under MCL 722.116; MSA 25.358(16), a state or local government facility must meet the following basic guidelines: "Local and state government child care organizations similar to those nongovernmental organizations required to be licensed pursuant to this act shall be evaluated and approved at least once every 2 years, using this act and rules promulgated thereunder for similar nongovernmental organizations licensed under this act. A report of the evaluation shall be furnished to the funding body for each child care organization. Unless child care organizations are approved, or provisionally approved, as meeting the appropriate administrative rules, state funds shall not be appropriated for their continued operation.” (Emphasis added.) The "licensed” requirement for private facilities and the "evaluated and approved” standard for local and state government run centers becomes critical in light of the state policy to establish small, noninstitutional facilities in residential areas. Inevitably, as was found, the state policy comes into conflict with local zoning ordinances which limit occupancy in a given area to single-family residences. To remedy this perceived conflict, the Legislature enacted the third statute, MCL 125.286a; MSA 5.2963(16a), which was designed to facilitate residential placement of persons in the state’s care, without encroaching on the right of local homeowners to enforce applicable restrictive covenants. See Malcolm v Shamie, 95 Mich App 132; 290 NW2d 101 (1980). The statute provides: "(2) In order to implement the policy of this state that persons in need of community residential care shall not be excluded by zoning from the benefits of normal residential surroundings, a state licensed residential facility providing supervision or care, or both, to 6 or less persons shall be considered a residential use of property for the purposes of zoning and a permitted use in all residential zones, including those zoned for single family dwellings, and shall not be subject to a special use or conditional use permit or procedure different from those required for other dwellings of similar density in the same zone.” (Emphasis added.) It is alleged on appeal that evaluation and approval of government run facilities is so similar to the licensing procedure required of private institutions, that the special definition of residential use for "state licensed residential facilities]” applied equally to the instant center. Without guessing whether the state policy equates privately run and government run facilities, we cannot agree. In Charter Twp of Pittsfield v City of Saline, 103 Mich App 99, 104-105; 302 NW2d 608 (1981), we referred to the traditional rules or statutory construction: "[I]f the statute is unambiguous on its face, we will avoid further interpretation or construction of its terms. Detroit v Redford Twp, 253 Mich 453; 235 NW 217 (1931). However, if ambiguity exists, it is our duty to give effect to the intention of the Legislature in enacting the statute. Melia v Employment Security Comm, 346 Mich 544; 78 NW2d 273 (1956). To resolve a perceived ambiguity, a court will look to the object of the statute, the evil or mischief which it is designed to remedy, and will apply a reasonable construction which best accomplishes the statute’s purpose. Bennetts v State Employees Retirement Board, 95 Mich App 616; 291 NW2d 147 (1980), Stover v Retirement Board of St Clair Shores, 78 Mich App 409; 260 NW2d 112 (1977). Also, ambiguous statutes will be interpreted as a whole and construed so as to give effect to each provision and to produce an harmonious and consistent result. In re Petition of State Highway Comm v Miller, 78 Mich App 336; 259 NW2d 877 (1977). Further, specific words in a given statute will be assigned their ordinary meaning unless a different interpretation is indicated. Oshtemo Twp v Kalamazoo, 77 Mich App 33, 39; 257 NW2d 260 (1977), MCL 8.3a; MSA 2.212(1).” Applying the above rules, we note that the term "license” is not ambiguous on its face. See People v Henderson, 391 Mich 612, 616; 218 NW2d 2 (1974). ("A license is the permission by competent authority to do an act which, without such permission, would be illegal.”) Further, it is apparent from a comparison of the language in MCL 722.115(1); MSA 25.358(15X1) and MCL 722.116; MSA 25.358(16) that the effect of acquiring a license to operate a privately run child care center differs substantially from the procurement of state approval for a government run center. In the former case, a license is an absolute prerequisite to operate a child care facility. Although a state or local government run facility is subject to the same rules of operation as its private counterpart, including criminal penalties for failure to comply with such standards, MCL 722.125; MSA 25.358(25), the state’s formal approval of the facility does not constitute a similar prerequisite to operation. In fact, the language of MCL 722.116; MSA 25.358(16) discloses that the state’s only recourse against unapproved government run facilities, which are not otherwise subject to the criminal penalties noted above, is to withhold state funds. Thus, absent a finding that the statutory terms "licensed” and "approved” are interchangeable or ambiguous, we are prohibited from further construction of these terms. Charter Twp of Pitts-field, supra. Our ultimate inquiry is whether the phrase "state licensed residential facility” in MCL 125.286a(2); MSA 5.2963(16a)(2) is elastic enough to encompass "licensed” private facilities and "approved” government centers. We conclude that the unambiguous and exclusive reference to licensed facilities in this statute does not permit a conclusion that "approved” government run facilities can be included in the definition of residential use. In this regard, we note that nowhere in the entire statute is the term "approved” or a similar term applied. Subsection 1 of the statute provides the following definition of state licensed residential facility: "As used in this section 'state licensed residential facility’ means a structure constructed for residential purposes that is licensed by the state pursuant to Act No. 287 of the Public Acts of 1972, as amended, being sections 331.681 to 331.694 of the Michigan Compiled Laws, or Act No. 116 of the Public Acts of 1973, as amended, being sections 722.111 to 722.128 of the Michigan Compiled Laws, which provides resident services for 6 or less persons under 24-hour supervision or care for persons in need of that supervision or care.” We have already concluded that a state "approved” child care institution differs from one which acquires a license. This provision’s reference to MCL 331.681; MSA 16.610(1) through MCL 331.694; MSA 16.610(14), since repealed, 1979 PA 218, and replaced by the new Adult Foster Care Facility Licensing Act, MCL 400.701 et seq.; MSA 16.610(51) et seq., provides further support for a more limited application of the statute’s terms. Under the new act, all institutions, whether governmental or nongovernmental, are required to be licensed by the Department of Social Services. MCL 400.713(1); MSA 16.610(63)(1). Also, the department is directed to operate within the special licensing restrictions imposed by MCL 125.286a; MSA 5.2963(16a) regarding the number of facilities which may be licensed in a specified area and notice of the proposed home to local authorities. MCL 400.716(3); MSA 16.610(66X3). As evidenced by the more detailed licensing provisions of the Adult Foster Care Facility Licensing Act, the Legislature could have provided for specific licensing of both private and governmental child care institutions. Because the Legislature saw fit not to license government institutions, we are compelled to hold that the definition of residential use in MCL 125.286a(2); MSA 5.2963(16a)(2) applies only to those institutions in fact licensed. Accordingly, we affirm the decision of the trial court and add that the Legislature is free to redirect this decision by statutory amendment if it believes that our interpretation is contrary to the act’s intent. Affirmed. R. M. Daniels, J., concurred.
[ -36, 12, -20, -14, -5, 23, -12, 35, -50, 1, -26, 14, 39, 37, 41, 41, 0, 11, -18, 7, 10, 50, 0, 55, -9, 33, 52, -11, -4, -2, -26, -79, 1, 22, -69, 15, 48, 44, 36, -18, 4, -46, 31, -45, -11, -11, 48, 39, 38, 20, -27, 39, 27, -9, -58, -25, -3, -22, 23, 26, -31, 47, 22, 22, 9, -1, 1, 2, -1, -65, 19, 47, -77, -35, 49, 3, 7, -18, 31, -5, -14, -8, 78, -32, 6, -1, 13, -16, -13, -23, -42, 6, -48, 14, 0, 84, -1, -25, 36, -27, 8, 35, 45, 28, -23, 27, -20, -12, 6, 53, -5, -61, -28, -29, 26, 8, 2, 33, -5, -4, -9, 36, -8, -32, 46, 2, -16, 22, -18, 8, -5, -24, 50, -13, -3, 23, 44, -14, 55, -22, -27, 30, 37, 1, 19, -16, -56, -25, -18, -73, 4, -47, 29, 76, 6, 58, -28, 24, -18, -9, -12, -29, 32, -62, 15, -73, -18, 61, -16, -5, 32, 43, -8, -9, -18, -50, -12, 32, -52, 11, -59, 7, 28, 9, 18, -19, -5, -35, -10, -64, 7, -49, -8, 4, -4, -5, 4, 58, -20, 10, -67, 40, 23, -48, 59, -58, -31, -33, -50, 22, -23, 33, -10, -17, 37, 1, 7, 29, -22, 21, 27, 16, 3, 29, -100, -18, -21, -37, 9, -49, 17, 0, 40, 62, -28, 4, 9, 25, 6, 62, 39, 36, -43, -21, -7, 11, 3, -15, -22, -21, 15, -17, -10, 27, -15, -4, -45, -6, 10, 11, 4, -35, -69, -7, -33, -5, -15, 18, -9, 46, -9, 39, 21, -17, -38, -28, 32, -31, 32, 13, 41, 48, 56, 11, 0, 28, 24, -25, -11, 19, -17, -5, 0, 15, 48, -57, 23, -31, -25, -10, -34, -17, 17, -13, -17, -20, -73, 2, -7, -24, -4, 18, -2, -15, 5, -37, -12, -54, 13, -18, 53, 11, 1, 20, -21, -49, 74, -21, 7, -13, 45, -6, 73, 4, -2, 15, 26, -43, 13, 30, 44, 46, 64, -13, 16, 13, -18, 51, 34, -21, 13, 17, -38, 14, -5, -33, -43, -58, -68, 46, -21, -6, -45, -46, -13, 19, 48, -3, 44, 0, -24, -58, -52, 4, 8, -54, 4, 79, -6, -3, -14, -21, 5, 36, 35, -7, -45, 8, -9, -41, 6, -73, -39, 3, 26, -19, 19, 12, 30, -65, -16, 9, -50, 10, 26, 39, 19, 19, 23, 3, -67, 2, 6, 9, -27, 72, -2, -67, 9, -2, -32, 29, -31, -8, -17, 13, -44, 12, 1, -16, -49, 52, -19, -5, 11, -33, 16, -20, -45, 53, -53, -32, -31, -16, 33, -44, -67, 4, -4, -58, 20, 108, -13, -35, -12, 14, 18, -20, -25, -51, 16, 41, -2, -7, 9, -34, -76, -11, 2, 15, -57, 41, 33, 2, 12, -28, -12, 49, -22, 47, -10, 0, -2, 6, 54, 27, -23, 61, -19, 11, 25, 27, -13, 62, -5, -12, 44, -11, -23, 34, 8, -11, 35, 0, 5, -5, 15, 52, -6, 0, -23, 35, 30, 47, -39, 29, 8, 0, 35, -35, 14, 1, 17, -39, -22, 44, -5, -2, 13, 28, 14, 9, -16, 75, 0, -16, 11, 73, 27, 21, 43, 14, -65, 1, 53, -28, -5, -33, 17, -32, -7, -11, -12, -15, 17, -10, -54, 8, 14, 17, -38, 10, 4, -10, 6, -3, -49, -1, 15, 3, 0, -5, -14, -21, -16, 9, 13, -10, -22, -17, 42, -8, 25, -49, -27, 35, -42, -6, 17, -29, -25, -47, -32, -16, 26, 39, -3, -17, 34, -8, -36, 8, -37, -29, -10, 14, -17, 27, 27, -30, -63, -61, -52, -13, -8, 19, 52, 16, 14, -24, -34, -22, -11, -38, 0, 33, 14, 50, 66, 40, -1, 38, 19, -6, 68, -17, -3, 17, 32, -22, -61, 31, -55, 46, 10, 10, 26, -10, -1, 22, 12, 46, 23, 9, -13, -5, 39, -55, 32, 8, 42, -8, -3, 30, -31, -39, 36, 22, -16, 17, -23, 27, 11, 100, -15, -8, -47, 27, 50, 22, 1, 1, 8, -68, 27, 62, 44, -2, -26, -14, -3, 1, 22, -81, -20, -32, -87, 70, 7, -8, 12, 31, -4, -8, -62, 50, 3, -47, -16, 19, -39, 14, 47, -9, -9, 19, 8, 25, -6, 0, -7, 3, -77, -59, 9, 27, 34, -20, -1, -21, -36, 23, -32, -4, 6, 50, -10, -6, -28, 0, 47, 13, -61, 19, 8, -1, 20, 19, -53, 26, 15, -1, -9, 5, -15, -47, 7, 35, -8, 0, -13, 13, -4, 45, 12, -44, -10, -9, 1, -2, 36, 43, -32, -7, 14, -62, -7, -30, -52, -22, 21, 48, 32, -17, -14, -35, 11, -4, 3, 24, -4, 17, 25, -2, 33, 32, -3, 42, 32, -8, 57, 55, -34, 22, -59, -13, -74, -26, 30, -30, 17, -21, -6, -8, 14, 0, 0, 35, -44, -26, 45, 9, -26, -46, 25, -19, 46, 6, -12, -5, 12, 19, 47, -12, 20, -31, 1, 55, 48, 32, -14, -19, -4, -1, -69, 30, 20, -29, 6, 27, -7, -14, -1, -17, 91, -1, -12, 11, 30, 14, 45, 3, -3, -27, -19, 49, -24, -45, 25, 22, -11, -22, -14, -2, 16, -46, -36, 14, -18, 44, 17, 40, -32, 12, 43, -20, 0, 27, 21, -3, 36, 8, 0, 8, -27, 11, -26, 2, -33, -93, -48, 31, -19, -17, 3, -2, 20, -14, -7, -21, -6, 17, -12, 4, -13, -16, -36, -1, -7, 0, -19, -35, -17, -35, -32, 0, -64, -2, 45, 38, 0, 5, 14, 25, -1, -15, 28, -5, -11, -71, -18, 55, 44, 53, -52, 19, -17, -19, -11, -7, -57, -11, 15, -49, -68, 41, -49, -2, 0, 9, -51, 18, 30, -5, -2, -27, 28, -31, -3, -34, -38, -11, -1, 45, 5, 1, -40, 12, 23, -27, 2, -46, 5, 50, -23, 19, 11, -2, -41, -84, 52, -32, 19, -20, 22, 5, -67, 8, 31, -45, 42, 51, -24, 6, -6, 5, -34, -11, -11, -38, 9, 17, 44, -31, -5, 0, -26, 37, -86, 26, 16, -17, -48, 14 ]
Steere, J. The bill of complaint was filed in this case to quiet title to 80 acres of land in Alpena county and, as part of the relief asked, to enjoin further proceedings in a pending action in ejectment for possession of the same, begun against complainant by de fendant, in March, 1904. The grounds urged for equitable relief are that defendant has, during a period of years, harassed and embarrassed complainant, casting doubt upon his title and right to this land by various unsuccessful suits and proceedings without merit, now proposes to interpose in the ejectment case technicalities against which complainant does, not have a complete and adequate remedy at law, and that prior laches of defendant and his grantor raise an equitable estoppel against him at this late date. A demurrer interposed by defendant to this bill of complaint was overruled by the circuit court of Alpena county, in chancery, and an appeal to this court was affirmed. The opinion upon that issue is reported in 172 Mich. 316 (137 N. W. 687), where said bill is set out in full. Defendant was thereafter permitted to plead over, and the case was heard in the trial court upon pleadings and proofs, resulting in a decree favorable to complainant, and defendant has again removed the proceedings here by appeal. At the time each of the parties to this litigation became interested in the 80 acres in dispute, it was wild, stripped land, of doubtful worth, but a subsequent demand for limestone of the quality found upon it enhanced its marketable value. Defendant claims title under patent from the United States through mesne conveyances, while complainant holds and claims title to it under a State homestead deed purporting to have been issued to him after five years’ settlement and improvement, pursuant to the provisions of section 131, General Tax Law of 1893, p. 407, and subsequent amendments. This land adjoins a farm owned by complainant for many years. It is rocky and rolling, underlaid with a solid limestone formation which outcrops in many places, and has upon it little productive soil, except in ravines, where the earth is deeper and good clover or other grasses will grow. Its chief, if not only, value for farming is as pasture, which complainant claims first led him to become interested in it, and for which he has mostly used it; its paramount value for lime rock being a matter of more recent discovery. Timber of some value grew upon it at one time, but it was lumbered at an early day, and had been burned over as far back as 1871. The land was sold by the United States government, in 1869, to a man named Leasley who, in 1871, deeded it to a business man of Alpena named Henry Beebe, who came to regard it of such scant value that he neglected to pay the taxes upon it for a series of years, and finally, in 1900, sold it to defendant for $15. Prior to the last-mentioned conveyance, complainant learned that it was delinquent for taxes and had become what is known as State homestead land, having been declared by the auditor general and commissioner of the State land office, after due examination, worthless and abandoned. He then took steps to secure title to it by a State homestead entry, first making application therefor in 1897, when lie received a certificate, took possession, and erected a small building, making some other slight improvements; but he did not establish his residence upon it, and his entry was canceled because he had not complied with the law in filing proof of settlement. He thereafter made a second application, receiving a second certificate of homestead entry in February, 1903, moved upon the land with his wife and younger children in April, 1903, and filed proof of settlement as required by law. For five years thereafter he lived with his wife and others of his family upon the land, and maintained a residence held, after contest by Williams, sufficient to entitle him to a State deed therefor. On the 14th of March, 1904, Williams filed a bill to quiet his title to said lands, in the circuit court for Alpena county, in chancery, against Olson, the auditor general, and commissioner of the State land office, praying that previous sales of said lands for taxes be set aside and canceled; that the deed from the auditor general to the State be annulled; that all deeds issued by the commissioner of the State land office be declared void, and the cloud upon complainant’s (Williams’) title by reason thereof be removed, and Olson’s State homestead entry be canceled, at the same time commencing a suit in ejectment to dispossess Olson of said premises. Appearance was duly entered in those cases for defendants by the attorney general’s department, which assumed the defense as required in such cases by section 131 of the general tax law, and pleadings were perfected. As a result of negotiations conducted between the attorney general’s department and the supposed counsel of defendant, details of which are not disclosed in this record, a stipulation in writing was entered into, on April 3, 1908, signed by Henry K. Gustin as attorney for plaintiff (Williams) and John E. Bird, attorney general, by Charles W. Gill, assistant attorney general, for defendants, discontinuing said ejectment case without costs. Gustin is shown to have represented Williams in tax litigation relative to this same land at certain hearings in the Alpena circuit court, but was not the attorney of record in either Williams’ chancery suit to quiet title or in the ejectment case in relation to which he stipulated, and therefore it was not dismissed upon the records of said court. Defendant Williams also filed petitions in the original proceedings of the auditor general for the sale of the lands in question for the years 1890, 1891, 1892, and 1893, asking the circuit court to open the decrees for those years and set aside the sales, in order that he might file objections and be heard thereon. On the hearing of those matters Gustin declared in open court that he was attorney for Williams. Counsel of record in both the ejectment case now sought to be restrained, and Williams’ suit to quiet title, begun at the same time, stated to the trial court at the hearing of the instant case that said suit of Williams to quiet title was dismissed by consent in open court when the petitions of which Gustin had charge for Williams were heard. Williams’ petitions to set aside the tax decrees were dismissed,- after hearing, by the circuit court, and thereafter he instituted proceedings to appeal from the decree of dismissal, but, the proceedings not being perfected, the appeal was finally dismissed by this court, on June 15, 1910. When complainant sought to make final proof of his homestead entry of these lands, defendant Williams filed objections and unsuccessfully contested the same before the commissioner of the State land office, Gustin acting as his attorney. Defendant’s counsel in his brief devotes considerable space to argument of substantially the same questions which were before this court on the demurrer to complainant’s bill, urging under the proofs, which follow the bill, that complainant has an adequate remedy at law. On the former hearing it was determined that a case for equitable relief was stated in the bill, and therefore, if the allegations therein were sustained, a decree as asked should be granted. All such legal objections to jurisdiction of the chancery court as were squarely before this court on the demurrer are now foreclosed by that decision, and the issue at this time must necessarily be whether the allegations of the bill are sustained by the evidence. At the hearing no testimony was introduced on the part of defendant. An examination of complainant’s testimony satisfies us that he has sustained by competent proof the material allegations in his bill. His proof was positive as to five years’ residence upon the land, and he introduced in evidence his homestead deed from the State, issued after his right thereto was contested by defendant, giving him title to the same. As a strict matter of law, the stipulation for dismissal of the ejectment case, signed by Gustin and the attorney general, cannot be regarded as binding upon defendant, because it was not signed by himself or his attorney of record. But it is shown by testimony introduced on the hearing of this suit that Gustin did represent defendant as attorney in certain of his litigation to defeat complainant’s title, and while he was doing so the former suit to quiet title, with the same solicitor of record, was dismissed by consent in open court. In support of the claim of laches, charged in complainant’s bill against defendant and his grantor, it is shown that Beebe, the grantor, had resided in Alpena, about four miles distant from the lands, since 1871, when he acquired his title, and was engaged in business there; that defendant Williams, also a resident, was familiar with the property and acquired his title with knowledge of existing conditions, had been in frequent communication with complainant, and at one time advised him what steps he should take to establish a residence upon it; that the lands had been delinquent for years and deeded to the State by the auditor general as abandoned lands, in 1896, four years before defendant received his quitclaim deed from Beebe; that in attempting to homestead the 80 acres complainant, as early as 1897, had taken possession and exercised acts of dominion over the property, continuing to do so openly and notoriously, residing thereon after his second entry; that prior to the time complainant sought to locate the land as a homestead it was unoccupied, wild, and abandoned, delinquent for taxes for many years, and at the time defendant instituted proceedings against complainant and the State to recover the same, no offer or attempt had been made by him or his predecessor to pay those delinquent taxes, which had been returned to the State year after year. The omission to do what one is by law required to do to protect his rights, and which justifies a fair presumption that he has abandoned the same, under circumstances which misled or prejudiced an adverse party, may in equity operate as laches which bar the assertion of such right later under changed conditions, even though the statute of limitations has not run. The elements of laches in this case bear close analogy to those disclosed in Owens v. Auditor General, 147 Mich. 683 (111 N. W. 354), and Beuthien v. Dillon, 160 Mich. 396 (125 N. W. 363). We conclude that the history of this tax litigation, as disclosed by the record, establishes a case entitling complainant to equitable relief in harmony with the allegations and prayer of his bill, and the decree granted by the learned chancellor should not be disturbed. The decree is affirmed, with costs to complainant. Brooke, C. J., and McAlvay, Kuhn, Stone, Ostrander, and Moore, JJ., concurred. Bird, J., did not sit.
[ -26, 31, 53, 6, 11, 44, 54, 36, -9, 40, 33, -27, 18, 23, 8, -7, -26, -28, -10, 20, -20, -33, 8, 33, 22, -44, 19, -31, -13, -33, -23, 30, -64, 22, 2, -26, 17, 3, 5, 14, -14, 9, 18, -43, 35, 17, -41, 2, 3, -7, 38, 4, 0, -4, -40, -2, -30, -6, 27, 2, 6, -10, 17, -19, 1, 52, -21, -8, -27, -19, -18, 42, 3, -14, 24, 13, 1, 1, 10, 33, -14, -9, 17, 30, 4, -16, -1, -13, -8, 0, -17, 4, -45, 30, 29, 3, 45, 21, 20, 10, -3, 21, 10, 9, -11, -26, -17, 33, 12, -42, 2, -23, 16, -34, -2, -24, 0, -33, 13, -19, 0, -8, 19, 22, -31, 5, -24, -3, -24, 61, -4, -49, 9, -40, 14, 8, 42, -75, -20, -7, 6, 2, -3, -42, -27, 21, -27, -19, 35, 21, -42, 22, -19, 58, 53, 18, 58, -11, 32, -24, 15, 14, 1, -28, -55, -31, 24, 6, -38, 33, 40, 18, -8, 20, 44, -18, 48, 33, -12, 35, 47, -4, 0, -33, -61, -22, 32, -5, -63, 26, -18, -27, 34, -43, -32, 34, 5, 20, -27, 1, -25, -60, -11, 2, 2, -5, 34, -32, 13, 29, -4, 39, -24, 0, -11, 33, 42, -3, 0, 17, 22, 63, 9, 42, -22, -26, 21, 14, -37, -36, 14, -19, 13, -18, -17, -50, 37, 13, -50, -16, -15, -37, -18, -26, -19, -31, -33, -30, -7, 53, -13, -23, -73, -20, -36, 10, -9, -6, -39, 2, 4, -1, 26, 29, -42, 14, -61, 38, 2, -18, 6, 24, 8, -2, -25, -38, -11, 3, 26, -9, 45, -40, -10, -24, -28, 36, 24, -14, -14, 36, -11, -40, -13, -40, -26, 26, -13, 6, 65, -7, -60, -12, -47, -68, 13, -17, -7, -31, 42, -3, 2, 10, 9, -23, -11, -23, 10, -2, -1, -51, -7, 10, -19, 0, -52, 36, 18, -8, -26, 41, -29, 8, -13, -23, -12, 2, 18, -31, 12, -13, 63, -1, -10, 42, 0, 14, -27, 10, 31, -27, 11, -32, -27, 43, 10, 0, 32, -37, -21, 16, -7, -10, 1, -8, 39, -5, -39, -63, 16, -26, -7, 4, 33, -14, -10, -23, -30, 1, -23, 6, 42, -4, 17, 36, 41, -12, -14, 1, -59, 3, -22, 4, 31, 4, -11, -10, 10, -63, -32, -19, -42, 18, -8, 6, -6, -19, 7, 0, 2, -4, 19, -68, 19, 13, 54, 7, 41, 4, 22, 30, 13, 19, 2, -25, 12, 7, 35, -15, 7, 7, -3, 57, 18, 17, 70, 1, -34, -42, -17, -16, -22, 34, 38, -21, -24, -17, -27, 38, 54, -37, 0, 25, -17, 16, -51, 28, 69, -24, 12, -9, 12, 4, 6, 5, -25, -25, -12, 35, 6, 14, 17, 13, 34, -37, 15, -20, 4, 17, -32, 17, 24, -30, 22, 7, -5, -30, 12, -1, -23, 6, 35, -16, -27, -10, 6, -62, -26, -4, 72, 41, 10, 33, 63, -20, -11, 3, -33, 22, 15, 81, -5, -45, 17, 6, -5, 55, 20, -5, 14, 13, -31, 45, -1, -26, 42, 9, 52, -17, 31, -12, -26, -14, -25, 7, 7, 3, -12, 15, -36, 10, -10, -24, 45, -2, -20, 51, -28, 20, 21, -22, -25, 10, -7, -9, 4, 5, -29, -15, 27, -38, 0, -31, -20, -74, 21, 19, 39, -29, -16, 34, 7, 2, 60, -20, 1, -2, -20, -41, -7, 6, -32, -66, 5, -47, 42, -15, 5, -31, 5, 8, -4, -12, -25, -5, -12, -18, 31, 49, 36, 35, -34, 7, -25, 40, 17, -23, -8, 9, 37, 16, 17, -9, 26, 48, 13, 36, 50, -42, 10, 5, 19, -10, -8, -13, -4, -24, 7, 23, -37, 50, -35, -7, -20, 11, -13, 54, 20, 62, -25, 14, -8, -43, -65, -23, -38, -15, 4, 11, -5, -18, -37, 38, 28, 12, -11, 15, -26, 19, 30, -6, 31, -42, -13, 11, 2, -13, -9, -11, -2, 28, -4, -17, -35, 1, -43, -43, 47, 25, 13, 59, 36, 3, 6, 30, -1, 0, 30, 66, -5, 15, -12, 30, -6, -5, -71, -29, -19, 4, 35, -26, 11, 85, 17, -11, -14, 0, 33, -20, -17, 6, 19, -11, 55, 16, -6, 25, 39, -43, -24, -3, 50, -16, 21, -41, 28, -20, 32, -35, -19, -12, 6, 47, 31, -13, -3, 39, -8, -12, -74, -23, 4, -34, -41, 10, 46, 3, 57, 19, -24, -43, 9, 2, -5, 16, 27, -23, -19, 28, -48, -11, 9, -28, 11, -13, -46, -10, -21, -23, 15, 14, -2, 35, -13, -42, 25, -15, -45, 1, 19, -21, 36, -43, -60, -34, -11, -13, -22, 1, 23, 15, 10, -82, -1, -51, -22, -5, 0, -71, -47, -23, -35, 6, -11, 7, -45, 24, -9, 14, -32, 32, -7, 16, -34, -5, -15, -15, -54, 47, -17, -2, -16, 31, 7, 14, 14, 27, 32, 8, 18, 12, 22, -22, -23, 14, 20, -65, 47, 0, -23, 25, -33, -49, -12, -26, 20, -7, -13, 43, -3, 22, -37, 3, -35, 16, 18, -28, -25, 11, -30, 22, 52, -12, -45, -2, -25, -9, 23, 20, -4, -1, -17, 2, -33, 16, -16, 20, -17, -35, 29, -11, -19, -29, -24, -6, -22, 22, 32, 15, 26, 8, 14, -5, -50, 17, 6, -22, 4, -45, -4, -11, 14, 35, 22, -33, -9, -58, 6, 59, 26, 6, -43, -24, -47, -12, -34, -7, -32, 41, -40, 21, 60, 8, -40, 10, -64, 19, 10, 12, 27, 76, -26, -23, -20, -53, -38, 48, -19, -62, 44, -8, 12, 25, -18, -11, 18, 9, 24, 12, 15, 68, -28, 10, 32, 71, 9, 15, -47, -28, 17, 2, -4, -38, 8, -66, -19, -4, 11, 3, -9, 23, 5, -31, -26, -11, 27, 17, 18, 50, 45, -17, 7, -6, -52, 1, -7, 41, 18, 8, -50, 43, 26, 52, 17, 54, 16, 27, 26, -15, -19, -32, -33, -38, 8, 25, 50, 23, 33, -9, -20, -4, -21, -5, 10, 22, 31, 10, 35, -20, 12, 5, 22, -35, -9, 47 ]
Ostrander, J. (after stating the facts). 1. The second question may be first considered. The church fronts upon Main street. The entrance is in the southwest corner of the building, and approached as well from Broadway, which is the street south of the church, as from Main street, which is the street west of the church. A point on Main street nearest the front entrance is more than 400 feet from the saloon. The point on Broadway nearest the entrance is less than 400 feet from the saloon. Having gained the little corner vestibule of the church from either street, there is a single entrance into the body of the church. We endeavored, in People v. Schneider, 170 Mich. 150 (135 N. W. 973), to so interpret the somewhat ambiguous language of the statute as to afford a workable rule, doing no violence to the language employed by the legislature. Within that rule, the question must be answered in the affirmative, although it is probable that, if the saloon was situated in a different direction from the church, it would be claimed that the measurement should be made to a point in Main street nearest the front entrance to the church. 2. The other questions may be considered together. Defendant has paid his tax, secured his license, filed his bond, with the express assent and approval of the public authorities charged with official duties in connection therewith. It turns out that, applying the statute as it may be applied, and as I think it should be applied, the saloon door is about 16 feet less than 400 feet from the front entrance to the church. The statute provides that: “No license shall be issued to any one to open up and establish a new bar or saloon having its front entrance within four hundred feet along the street line from the front entrance of a church, * * * and after this act takes effect an attempt to open up and establish a new bar * * * having its front entrance within four hundred feet * * * from the front entrance of a church * * * shall be a violation of this ’act, and the person * * * so doing, upon conviction thereof, shall be subject to the penalties prescribed,” etc. Sec. 37, Act No. 291, Pub. Acts 1909 (2 How. Stat. [2d Ed.] § 5091). It is not attempted to subject defendant to the pains and penalties of the statute, but, upon the complain! of the prosecuting attorney to a court of equity, to close the saloon, or bar, by the order of the court and the writ of injunction, and the question is presented whether a court of equity may properly grant the relief. Upon this point the argument advanced by complainant is that the saloon is a public nuisance, which may be abated, or restrained, by a court of equity. This court has held that equity has jurisdiction to abate a saloon, if a private nuisance, although the nuisance is also a breach of the criminal law. Detroit Realty Co. v. Barnett, 156 Mich. 385 (120 N. W. 804, 21 L. R. A. [N. S.] 585). We held in Gowan v. Smith, 157 Mich. 443 (122 N. W. 286), that mandamus was not the proper remedy to compel the observance of the statute relating tó the opening and closing of saloons. In Andrews v. Auer, 177 Mich. 244 (143 N. W. 68), it appeared that the saloon keeper stated, in applying for a license, that he was a citizen of the United States and of Michigan. It was charged in the bill of complaint that he was not a citizen of the United States, and for relief it was prayed that the approval of his application for license be declared null, that the license be canceled, and that he be restrained from further carrying on the saloon business. Without deciding whether a place where intoxicating liquors are sold contrary to law is a public nuisance, it was held that the jurisdiction of the court of equity extended to the canceling of certificates and other instruments executed by government officials and boards, when obtained by fraud or illegally. The cases cited in the opinion, the most of them, apply the rule that in cases of fraud the jurisdiction of courts of equity is concurrent with the jurisdiction of courts of law, and that courts of equity may grant more complete relief by compelling cancellation, or surrender, of instruments. See Mack v. Village of Frankfort, 123 Mich. 421 (82 N. W. 209), where such relief was denied, although fraud was alleged, on the ground that complainant had an adequate remedy at law. The cases of Village of Wolverine v. Circuit Judge, 162 Mich. 713 (127 N. W. 744), and Starks v. Circuit Judge, 173 Mich. 464 (139 N. W. 29, 43 L. R. A. [N. S.] 1142, Am. & Eng. Ann. Cas. 1914D, 773), were cases of applications to this court for writs of mandamus to compel the circuit judge, in the first case to dissolve, and in the other case to issue, a writ of injunction. The relief asked for in the first case in the court below was restraint of official action, in the other to restrain the conducting of a saloon. In neither case in this court was the question now being considered presented. In Osborne v. Township Board of Richland Township, 183 Mich. 220 (150 N. W. 249), the direction of official action, by mandamus, was the relief asked for in the court below, the proceeding being reviewed here by certiorari. In no case called to my attention has this court intimated that the jurisdiction of equity courts extended to enforcement of the liquor law or the control of saloons or saloon keepers; that equity will interfere to prevent violations of the liquor law, or to inflict penalties therefor. There is, however, a distinction between cases like the one at bar and Andrews v. Auer, supra, and cases in which, upon the theory that an illy conducted saloon is a public nuisance, a court of equity is asked to interfere. The distinction lies in the fact that in one class of cases, like the present one, the defendant has no right to do business at all, but only has an apparent right, evidenced by the results of his own and of official action, while in the other class of cases the saloon keeper has both a real and an apparent right to conduct the business, but conducts it badly. In the second class of cases, the saloon keeper may conduct his business properly and within the law; in the first class, he has no right to conduct the business, at the particular place, at all. There is in each case responsibility to the criminal law; but in the cases of the first class the penalty is incurred at the outset, is continuing, and cannot be escaped by any method of conducting the business, while in the other class it is incurred only as in the manner of doing business the law is violated. Defendant cannot, if he would, lawfully carry on his business at his present place of business, and every instrument and every vote or resolution upon which his apparent right is founded ought not. to have been given. Possessing the apparent right, the evidences of public permission and indorsement, a court of equity 'may declare them to be ineffective and insuffi cient, and compel their surrender, or cancellation. In Andrews v. Auer, supra, the evidences of right to do business were obtained by fraud; in this case, it must be presumed, they were obtained because of a misapprehension of, or lack of knowledge of, facts which, if understood, would have led to the refusal of the right. In this view of the matter, the prosecuting attorney was a proper complainant, informing officer, the prayer of the bill may be treated as amended, and a decree entered in this court conformably with the views herein expressed. Neither party will recover costs of this appeal. Brooke, C. J., and McAlvay, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.
[ 30, 15, 18, -24, -1, 68, 9, 111, -58, 45, 16, 15, 4, 9, 70, 2, 18, 54, -37, 27, -47, -22, -27, 1, 34, 22, 47, 26, -42, 66, 9, -26, -37, -8, -11, 28, 17, -16, 38, 12, -33, 16, -30, -54, 1, 1, 4, -31, 9, 22, -22, -14, -24, 21, 57, 12, 2, 29, -1, 27, 14, 35, -12, -16, 14, -22, 29, -11, -9, -69, 36, 0, -8, 14, 25, -8, 57, -18, 18, 40, -36, -17, 36, 19, 2, 52, -24, -32, -9, -74, 22, -35, -12, 13, 22, 14, -26, 42, 35, 0, -3, 6, -27, 11, -23, 42, -42, 20, 20, -91, 26, -31, 75, -31, 8, -10, -11, 40, 0, 38, 45, 33, 98, 3, 13, -19, -9, 4, -55, -24, 18, -16, -48, -7, 12, -5, -65, 30, 48, -4, -9, 7, -8, 11, -10, -6, -30, 44, -8, -62, -17, 17, -2, -16, -5, 34, -27, -33, -11, -14, 4, -13, -47, -2, -14, -22, -30, -10, 0, -14, 12, -2, 1, 21, 29, 24, -14, -9, -40, 1, -36, 38, 7, 28, 40, -63, 42, -6, -22, -11, -60, 17, 15, 38, 17, -1, -25, 27, -79, -78, -21, -23, 13, 67, 45, 33, 41, 35, -40, -38, -34, 30, -64, 25, -8, -17, 23, -19, 6, -31, -54, -6, 6, 24, -25, -36, -14, -6, -7, -25, -43, -16, 18, -32, -6, -1, 19, -28, -31, 37, 33, 59, -11, -46, -31, 13, 20, 12, 14, 23, 60, -8, -1, 45, -15, 37, 0, 11, -52, -23, 26, 18, -10, -14, -11, -25, 10, -11, -32, 31, 0, 33, -4, 11, -1, -25, 28, 51, -14, -7, 41, -6, 67, 25, -8, 18, 29, 5, 4, 0, 28, 22, -32, 14, -22, 15, -8, 47, -16, -27, 9, -9, 13, 46, -6, 0, -18, -18, 2, -13, -65, 7, -43, 6, 32, 37, -11, 17, -17, -36, 82, -29, 7, -8, -11, 32, 31, 29, -42, 22, 13, -34, 9, -26, -35, 5, 34, -17, -31, 13, 46, -40, 10, -26, 44, 23, -18, 23, 40, -31, 11, -23, -24, 32, -34, -20, -40, -13, -12, -4, 15, -2, 41, -21, 20, -12, -19, 2, 14, 10, -30, -52, -26, 12, -8, -37, 29, 34, -63, 29, 16, -69, -5, 10, 34, 28, -87, -92, -58, 37, -15, -1, 12, -18, 2, -22, -29, 23, 37, -44, -78, 5, 20, 0, -58, 0, 0, 71, -12, 58, -19, 26, 51, 34, -45, 61, -43, -51, -57, 24, -5, -7, 0, -22, -22, -47, -71, 24, -18, -18, -41, -3, -22, 28, 14, -32, 33, 9, 17, -53, -59, -18, -63, -34, -4, 23, -5, -13, -7, 10, -8, 38, 0, 0, -33, 41, 24, 24, 22, -10, 70, -8, -34, -42, 3, -44, -57, -33, 33, 28, -10, 42, 34, -45, -4, -42, 38, 25, -3, -26, 18, -1, 53, 15, -42, -30, -20, 24, 16, -22, 59, 66, 58, -98, 4, -11, 18, 26, -33, 24, -27, 30, -50, -41, 9, 8, 28, 51, 48, 4, -27, 14, 58, -3, 4, 43, 4, 11, -8, -64, 11, -36, 11, -43, -2, 27, 17, 14, -6, -27, 7, -21, -37, -21, -52, 30, 34, 22, 1, -10, 17, 11, -8, 28, 28, 2, 18, -36, 36, -39, -34, 37, 56, -26, -21, -18, -71, -61, -14, 24, 17, 36, 43, -22, 21, 16, -16, -16, -6, -8, -49, 80, 10, -37, -87, 11, -9, -33, 27, 9, 23, -23, 8, -27, -11, 32, -15, 24, 15, 48, -45, 35, -17, 17, 12, -16, 28, 42, 72, 11, -28, -62, -30, 21, 4, 16, -16, -6, 69, 57, 27, -13, -27, -10, -30, 45, 11, -33, 28, -17, -21, 6, 26, -45, 23, -5, 13, 0, 32, -36, -40, 0, 18, -6, -4, 0, 17, -4, 27, 20, -11, -12, -35, 15, 36, 25, 8, 45, 16, 24, -3, -3, 1, 13, 32, -8, -22, -30, 11, 25, -7, 21, 19, 44, 9, -4, 3, 21, 16, 0, -64, -44, -12, 77, 46, -21, -7, 18, -14, -10, 15, -33, -20, -28, -16, -12, -34, -29, 37, -3, 22, -8, 14, -48, -5, 19, -25, 37, -8, -20, 42, -70, -2, 5, -10, 21, 28, -34, -29, -17, 25, 38, 16, 7, -3, -8, -18, 8, -6, 83, 20, -9, -87, -18, 21, 64, 14, 7, 10, -15, -3, 6, -1, -38, -20, 34, 30, -29, 39, -7, -35, -31, -22, 5, -28, -16, 25, -25, -27, 22, 17, 57, 7, -5, 20, 5, -32, 24, -24, -1, -23, -11, -72, 1, -5, -10, -22, -11, -12, -3, -3, 3, -21, 37, -54, 71, 26, -79, 17, 5, -13, -3, -27, -45, 52, -18, 27, -10, 46, 7, 10, 37, 28, 0, -45, -27, 2, -22, 35, -8, -44, 25, 2, -16, -21, -17, -3, 61, 21, 1, 0, -68, -6, -30, -78, -21, 46, 26, -67, -48, -33, -2, 12, -35, 19, -31, 0, -25, 22, -2, 13, 36, 17, -28, -15, -40, 0, 21, -26, -35, 36, 57, 21, 58, 20, -26, -5, -72, -59, -16, -54, 58, 16, -45, -10, 13, 50, 5, -15, 50, 11, 8, 49, 0, -29, -50, 15, 28, -26, 3, -71, 0, 16, 35, 1, 33, 10, 8, 43, -37, 24, 19, -16, -7, -10, -44, -1, 54, -23, 14, 81, 46, 31, 81, -37, -16, -21, 4, 13, -39, -50, -8, -18, 65, 29, -11, -30, 17, -22, -60, -9, 0, 19, -19, 44, -12, -28, -7, 17, -24, 31, -6, -19, 13, -91, 50, 21, -23, -1, 17, -48, -3, -8, -41, -52, -17, 36, -26, 4, -17, -41, 38, 8, 53, -41, 3, -28, 60, -65, -41, -9, 15, -2, 12, 9, 29, -1, -21, -72, 56, 0, 84, 18, -8, -19, -22, 51, 19, 0, 39, -32, -17, 39, 46, 48, -17, 0, -66, 0, 42, -15, -40, 53, 23, -56, -18, 22, 39, 20, -3, -14, -5, -82, 2, -22, -29, -76, 45, 20, -29, 30, 16, -2, -12, 55, -19, 22, -28, -2, -56, -47, -36, 53, 35, 37, -28, -36, 8, -42, -13, 35, 0, -99, 3 ]
Kuhn, J. The bill of complaint prays for an accounting to the beneficiary from his trustee. The complainant, a resident of Escanaba, had formerly resided at Iron River in this State, which latter place he left in 1906 and went to Nevada, where he remained about four years. He is a graduate of the law department of the University of Michigan, and had practiced law for a short time, but since his graduation his business has 'been mainly real estate. He was the owner of an undivided quarter interest in the N. i/2 of the N. E. %, the S. E. % of the S. W. and the S. W. 14 of the S. E. 14 of section 26, and the N. E. % of section 36, township 43 north, of range 35 west, Iron county, Mich. The S. E. % of the S. W. % and the S. W. % of the S. E. % of section 26 was known as “Weimer’s Field.” The complainant’s cotenants in this property were his mother, Frances E. Barras, and his uncle by marriage, John D. Ross, who together owned the remaining undivided three-fourths interest in the land. Some time prior to 1907 the complainant had given his uncle, John D. Ross, a mortgage on his interest in all these lands. Some friction having arisen between the complainant and his mother and Mr. Ross, arising out of certain business dealings, the uncle started foreclosure on his mortgage, and the complainant’s interest in the land was sold on December 14, 1907, to Mr. Ross. The amount required to redeem approximated $1,500, and the time of redemption expired on June 14, 1908. It appears that the complainant and defendant had met and beeome acquainted at Iron River, and this acquaintance had ripened into a warm friendship, and while the complainant was in Nevada he and the defendant became jointly interested in the exploration of certain mineral lands in that State, it having been arranged that the complainant was to look after the business on the ground and the defendant to furnish the necessary money to carry on the enterprise. It was while in Nevada that the complainant first learned of the foreclosure of this mortgage by his uncle from some source. A letter written to him by the defendant about December 21, 1907, also informed him of this fact. Upon learning of the foreclosure he immediately wrote Mr. Ross, requesting him to cancel the foreclosure and to accept as a substitute a trust deed of the property under which he would be authorized to sell at discretion the complainant’s interest in the lots of a proposed plat of Weimer Field and retain the proceeds until the complainant’s indebtedness to him, principal and interest, was fully paid, it appearing that in 1903 the complainant and his cotenants had caused about 50 acres of Weimer’s Field to be surveyed and staked out into lots and a plat thereof to be made, but the same had never been recorded. Mr. Ross did not reply to the letter written by the complainant, and on January 1, 1908, the complainant wrote the defendant of his offer to Mr. Ross and of his failure to secure an extension and of his fear that Ross was trying to get his interest in the property, and that unless complainant heard from defendant by February 1st, he thought he would sell to a building company at Iron River, which had offered him $1,500 for his interest in Weimer’s Field some time previous to the foreclosure sale. In reply, the defendant recommended the sale to the building company, as the complainant would be thus enabled to pay his debt and save his remaining interest, and also offered to raise the money and take up the mortgage and thereby assist the complainant. The defendant also, in the meantime, endeavored to find a purchaser for Weimer’s Field at a better price than was offered by the building company, and wrote the complainant of a prospect of selling to one Swanson at $2,500. This sale the complainant was willing to make, but Swanson finally decided to invest his money elsewhere. On February 4, 1908, the defendant wrote a letter to the complainant, in which he suggested, “not to let his property go by default,” and also “if we have a little time and it has to be done, we will put the money in and save it. You and your wife could make a trust deed to me, and I am sure if we had thirty days time we could pay it.” To this the complainant replied under date of February 9, 1908, as. follows: “Now in regard to the Weimer and your suggestion of taking up the mortgage Mr. Ross holds and my giving a trust deed. This is in exact accordance with what I would wish, but did not wish to impose on your generosity in this regard, and therefore wrote Mr. Byers on the first of this month that I had decided to sell my interest and I then asked him to procure better terms than the fifteen hundred dollars previously offered. I knew this was. giving the property away even at the price of lots at the time I left Iron River; your letter, however, gave me a good insight into the matter, for if all the lots are sold in the original plat of Iron River, of course our addition will sell rapidly, and if the price of the original plat lots, which are only 30x120 ft., sell for three hundred dollars, ours, ought to sell for the same money when we give them almost twice the ground; our lots being 50x140 ft. If I remember right, I figured when I laid out the Weimer that the lots included in the plat at two hundred dollars for the lots in the first tier of blocks facing the road, and one hundred and fifty dollars for the balance of the lots, would, if all were sold, amount to about thirty thou sand dollars. This being only a little over one-half of the Weimer field. However, I gave Mr. Coe a blueprint of the plat, which you can get from him and figure out yourself. “The amount of Mr. Ross’ mortgage as foreclosed last December, including Holmes title which he purchased, was fourteen hundred and one dollar and some cents. I suppose interest and the expenses extra would bring the amount up close to fifteen hundred dollars, but if you advanced this money to me, there is to offset this in the neighborhood of five hundred dollars due me on my interest on the sale of lots, which I made when I was. in Iron River, besides the interest since that time. “As you are better acquainted with the risks and advantages of this real estate in Iron River, than I am, I will submit this proposition to you, for if you inconvenience yourself to put up money for me, Cap, I want you to make something good out of it. “Therefore, if you are willing to take your security on the Weimer and the pay from the sale of the lots, I to give you a trust deed for same, and when the money you have advanced and the interest thereon is paid up from the sale of the lots, I will then give you a deed for one-half of my interest then remaining in the whole Weimer eighty; that is, an undivided one-eighth interest. This said agreement can be embodied in the trust deed. In the meantime, when the lots are put on the market, I see no reason why you, Frank, or Dave could not get the agency for the same, as the commission is ten per cent., and would amount to quite a bit on a lively market. As I figure it, it would only need the sale of fifteen or twenty lots more to fully pay up fifteen hundred dollars; that is, with the money now due on my interest from previous sales, and we could then whack between us the rest of any sales which would be due on this quarter interest, which would be quite a chunk in itself, you can, how- ■ ever, figure this out better from the blueprint at Coe’s than I can try to explain on paper. I have until the first of June to redeem, so we have plenty of time. If this proposition meets with your approval, have trust deed made out and my wife and I will sign same. If not, fix it up to suit yourself, for I know it will be all right anyway.” The offer contained in this letter was not accepted in the exact terms proposed, but instead the defendant forwarded to complainant a draft of a trust deed, accompanied by a letter, and with reference to the sale of the property for $2,500 he wrote: “I don’t think you read my letter right. Charlie Swanson did not say he would take the property at $2,500, but wanted me to find out if you would sell. At present I don’t think he would buy, as he has arranged to loan his money to Krom.” On March 1, 1908, the complainant wrote the defendant : “The trust deed has arrived and is O. K. Will take the first stage out to Mina, have my signature acknowledged, and then send to my wife for her signature. I wrote- you the other day that I would rather take the offer of Swanson as I was anxious to get back for a visit. But I know we will make the most money through this trust deed, as you are on the ground to see that matters go according to Hoyle, and am pleased to have the matter settled, and am very grateful indeed for your kindness, and hope we will both make a little chunk of money out of the transaction.” A trust deed was prepared by the defendant, and was executed by the complainant on March 4, 1908, and by his wife on the 14th day of the same month. The deed gives the defendant a very broad power in connection with the sale and disposition of the property, and provided for the repayment of the moneys advanced by him to redeem from said mortgage sale, together with interest at the rate of 6 per cent, per annum. The fifth and sixth paragraphs of the deed further provide: “Fifth. That after the repayment of such redemption money with the interest thereon and the said taxes, the said trustee, and his successors, shall reconvey to the said Alpha C. Barras an undivided one-half of the undivided one-fourth of all that part of the said southeast quarter of. the southwest quarter and south west quarter of the southeast quarter of said section twenty-six (26), and all of the undivided one-fourth of said north half of the northeast quarter of said section twenty-six (26), and the northeast quarter of said section thirty-six (36); and the said Alpha C. Barras and Lillian Barras, his wife, shall convey to the said George W. Youngs, his heirs or assigns, the remaining undivided one-half of the undivided one-fourth of the said southeast quarter of the southwest quarter and southwest quarter of the southeast quarter of said section twenty-six (26) remaining unsold. “Sixth. That all the expenses and incidental charges of the trustee, incurred by said trustee in the discharge of the trust hereby created, shall be deducted from the income from the sale or leasing of the said southeast quarter of southwest quarter and southwest quarter of the southeast quarter of section twenty-six (26) township 43 north of range 35 west.” Some six or seven of the lots of the proposed plat had been sold, but in the spring of 1906 Mr. Ross declined to join in the sale of any of the other lots until his mortgage was paid, which attitude on the part of Mr. Ross prevented further sales. Upon receiving the trust deed the defendant applied to Mrs. Barras and Mr. Ross to join him in completing the plat of Weimer’s Field and in selling the lots, which they declined to do. In order to make it possible to put the property on the market he arranged for the purchase of their interests, which, after some lengthy negotiation and considerable difficulty, were purchased on May 29, 1908, by Mrs. Youngs and Mr. McDonald, who joined with the defendant in making and recording a plat known as “Youngs’ Division to Iron River.” This plat, in a general way, followed the survey previously made under the direction of the complainant, but defendant found it necessary to make an entirely new survey in order to place the permanent monuments at the various corners required by law, which had been neglected in the original survey. The defendant had sent the complainant, in connection with his Nevada deals, sums of money, from time to time, approximating the sum of $9,000, and had also sent him certain sums of money as loans for his personal use, and had at his request advanced other sums to his wife. The defendant claimed that the complainant had applied to his private use some of the moneys which he had forwarded for the Nevada enterprise, and there are other disputes relating to the Nevada business, the details of which are not disclosed in this record. The defendant proceeded to sell the lots under the trust deed, and it is the claim of the complainant that some time prior to April, 1910, and before this suit was started, he asked the defendant for a statement of the sale of these lots and for a settlement, which it is claimed the defendant refused to give him at that time. It does appear, however, that the parties met at Iron River on March 19, 1910, for the purpose of going over and if possible adjusting their joint affairs. According to the complainant’s testimony, at that time they reached a full compromise and settlement of all matters in dispute between them, including not only the matters arising under the trust deed, but the Nevada disputes as well, leaving nothing further to be paid by the defendant and nothing further to be done by either but the execution of such instruments as might be found necessary to vest in each his respective share in Weimer’s Field in accordance with the terms of the trust deed. The defendant agrees that such a compromise and settlement claimed by the complainant took place, except that it is claimed that it did not include any of the Nevada transaction other than the items of money used by the complainant in his personal affairs from the money received by him for the Nevada business. On March 21st following this meeting the complain ant demanded of the defendant a receipt and release in full of all accounts and matters and controversies between them, and especially to cover the Nevada dispute. But the defendant refused to release the complainant with reference to all the matters in controversy arising out of their Nevada affairs, and the complainant thereupon started this suit on June 19, 1910. On November 10, 1910, before the answer of the defendant was filed, the parties had another meeting at the defendant’s office in Iron River, and some hours were taken in going over the account of the lot sales and all the doings of the defendant under the trust deed. It is the claim of the defendant that he and the complainant at that time arrived at a complete compromise and settlement of all matters in dispute, including the item of money taken by the complainant for personal uses from the Nevada fund, which item was charged to the complainant and credited to the defendant on such settlement, but that the settlement excludes all other matters connected with the Nevada business. This claimed settlement the complainant refused to carry out, whereupon the answer of the defendant was filed, and in due course of time brought to a hearing. It might also be said, as was stated by the chancellor in his opinion: “In this connection it is due the complainant to say there is no claim in this case of a wrongful, fraudulent, or intentional misappropriation of any of the Nevada funds. On the contrary, there seems to have been a fair dispute whether certain expenditures made by him should be charged to the Nevada business or to the complainant personally.” The questions involved are thus stated by the complainant’s counsel in his brief: First. As to the amount due the complainant from the defendant under this trust deed. This will involve, of course, a discussion also of the question or the effect of the alleged settlement of November, 1910, between the parties. Second. As to whether the provision in the trust deed whereby the complainant agreed to give the defendant a one-eighth interest in the minerals in Weimer’s Field constitutes usury. The chancellor, who saw and heard the witnesses, found that it was established by a fair preponderance of the evidence that the parties reached a compromise and settlement of all their matters on the terms claimed by defendant on November 10, 1910. A reading of the testimony of the witnesses who were present at the discussion, and that of the parties themselves and of the counsel who were called in to prepare necessary papers, is convincing that this conclusion of the court below was fully justified. The lawyers agree that the form of the papers was to be left to a future conference by them, but that the details of the settlement were agreed upon there can be no question. By this agreement it appears that the defendant was to pay to the complainant $1,100 in cash. It also appears that on the morning after this meeting the complainant again came to the office of the defendant and asked him for $100, which he received from the defendant, and thereupon gave a receipt, which reads as follows: “$100. Iron River, November 11, 1910. “Received from G. W. Youngs check No. 834, being payment of our Weimer deal settlement, one hundred dollars. A. C. Barras.” By this receipt, in our opinion, he clearly ratified in terms the agreement made the day before. The compromise and settlement agreed upon between the parties is thus stated by the chancellor in his opinion: “The defendant was charged with all money collected by him upon sale of lots, and was credited with all money paid to or on account of the complainant, including the money expended by the complainant for his own use out of the Nevada funds, which left a balance in favor of the complainant of $1,100, which the defendant agreed to pay in cash; in arriving at these figures all lots sold, whether fully paid for or not, were treated as fully paid, and the defendant was charged with the full contract price thereof, and was given the right to collect and retain all sums then due or thereafter to become due on any and all- lots of the plat at that time sold and not fully paid for; it was agreed that the mineral rights of Weimer’s Field, platted and unplatted, originally owned by the complainant, should be divided equally between them, one-eighth to the complainant and one-eighth to the defendant, and that the surface of the unsold lots of the plat and of the unplatted part of Weimer’s Field should also be divided equally between them, one-eighth to the complainant and one-eighth to the defendant, and that the one-eighth surface interest of the complainant in all lots at that time sold and not deeded should be deeded to the defendant, and that all the interest of the defendant under the trust deed in the N. % of the N. E. % °f section 26 and the N. E. % of section 36 should be conveyed to the complainant. The settlement did not include any of the Nevada transactions of the parties, except the item of money used by the complainant for his private affairs out of the Nevada funds.” It is claimed, however, that this settlement is not binding upon complainant because defendant acted in bad faith in that he did not disclose to the complainant that the lots had been sold on time, and that he had received interest thereon, which constituted a legal fraud against the complainant. In this connection it should be considered, however, that the complainant is a trained lawyer and shrewd business man, and had had considerable experience in real estate transactions, and it seems incredible that he did not know that, as a usual custom, deferred payments on land contracts carried interest. We are fully satisfied that after the discussion on November 10th the minds of the parties met and a complete settlement was agreed upon, and also that there was no fraud intended and no fraud practiced upon the complainant in the settlement, and that there was no hiding of the fact that any interest was due from the purchasers of these lots. We are also satisfied that this settlement was a fair and equitable adjustment of the matters in difference between the parties. In the discussion of the second question here involved, as to whether the provision in the trust deed whereby the complainant agreed to give to the defendant an undivided one-eighth interest in Weimer’s Field constituted usury, it is necessary to first determine the situs of the contract. The situation before us here is that a resident of Michigan, while temporarily sojourning in the State of Nevada, makes another resident of Michigan a proposition as to a trust deed. The defendant prepares a draft of the trust deed in Michigan and sends it on to the party in Nevada for execution, which is effected. It would seem that under these circumstances, when the party in Michigan drafted the deed in accordance with the request of the party in Nevada, the minds of the parties must be held to have met in Michigan at that time, and therefore it must be said to be a Michigan contract. In the case of Mott v. Rowland, 85 Mich. 561 (48 N. W. 638), this court said: “It has been frequently held that the place where-the terms of a contract are agreed upon governs, rather than the place where the evidences of agreement are executed. Bank v. Low, 81 N. Y. 567 [37 Am. Rep. 533]; Coal Co. v. Kilderhouse, 87 N. Y. 430. In the last case cited the court say: “ ‘The only time the parties were together or in communication was August, 1875. The hank then yielded to the application of the debtor, and consented to an extension upon certain precise and defined terms. They were accepted by the debtor. At that moment the minds of the parties met. This was in Michigan. That State, therefore, was not only the place of contract, but, on the part of tbe bank, was tbe place of performance. Ingram complied witb tbe contract afterwards in Buffalo, but wbat be did there, while in tbe performance of an agreement, was in tbe performance of one already made.’ ” It is clear that everything that was to be done under this trust deed was to be performed in Michigan, and in the case of Douglass v. Paine, 141 Mich. 485, 497 (104 N. W. 781), Justice Hooker, speaking for this court, said: “The rule that a contract is to be interpreted according to the law of the place where it is made is subject to the exception that “ ‘If by tbe terms or nature of tbe contract it appears that it was to be executed in another country, then tbe place of making tbe contract becomes immaterial, and tbe law of tbe place where tbe contract is to be performed governs, in determining tbe rights of tbe parties. If a contract is made in one State or country, and it is to be performed in another, it will be presumed that it was entered into witb ’ reference to tbe laws of tbe latter, and those laws will be resorted to in ascertaining tbe validity, obligation, and effect of the contract.’ 1 Beach on Contracts, 592, 606. “See, also, 9 Cyc. 582, subd. 3; Paret v. Bryson, Fed. Cas. No. 10,710; 2 Parsons on Contracts (9th Ed.) p. 734 et seq.” See, also, Stack v. Lumber & Cedar Co., 151 Mich. 21 (114 N. W. 876, 16 L. R. A. [N. S.] 616, 14 Am. & Eng. Ann. Cas. 112); Palmer v. Hill, 140 Mich. 468 (103 N. W. 838). The question as to whether the agreement to convey the interest in the land, in addition to the rate of interest provided for in the deed, made the deed a usurious contract is clearly discussed in the opinion • of the learned chancellor, whose conclusion with reference thereto is here set forth, and is adopted by us: “The claim of the complainant is that the consideration for the agreement to transfer one-eighth of the land was the loan of money to redeem and to pay taxes; that the effect of the agreement was to provide for interest on the money loaned greatly in excess of the maximum rate allowed by law, and consequently usurious and void at least as to the excess at the option of the complainant. That the consideration for the transfer of one-eighth of the land was the loan is not accepted. On the contrary the conclusion from all the evidence is that the consideration for such transfer was services to be rendered by the defendant. The trust deed contemplated various services to be performed by the defendant. He was required, not only to furnish money for redemption, but to actually effect redemption by paying over to the proper person or depositing with the proper office the redemption money. He not only was expected to furnish money for the payment of taxes, but he was to pay the taxes, and to that end pay the money to the proper treasurer and procure a proper receipt. If occasion arose he was to negotiate and execute options for mining leases of any or all the lands covered by the trust deed. He was to arrange with the other owners for their consent to the making and recording of the proper and lawful plat, and bring them in accord with himself in relation to prices, terms of sale, and in all other matters pertaining to any and all the lands covered by the trust deed, which both parties had reason to anticipate would be, and, as appears, was, no light task, owing to the bad blood between the complainant, his mother and Mr. Ross. Finally he was to sell and dispose of the lots ‘in such manner and for such terms as he might from time to time deem proper and profitable/ “It is insisted provision for payment for the services of the trustee will be found in the sixth clause of the trust deed, which reads: ‘All the expenses and incidental charges of the trustee, incurred by the trustee in discharge of the trust hereby created, shall be deducted from the income from Weymer’s Field/ The use of the word ‘incurred’ renders a construction of the clause simple and its meaning sure. Under that clause of the deed the defendant was entitled to deduct from the fund all the expenses and incidental charges incurred by him, that is to say, for which he became obligated to others, but he would find no warrant in the language of that clause for retention by him of any part of the fund as compensation for any services performed by himself in furtherance of the trust. “It is urged that the value of an undivided one-eighth of Weimer’s Field was greatly in excess of the value of the services, whether the services were slight or otherwise, important or otherwise; and, whether they were to be performed partly for the benefit of the defendant as well as the complainant, the parties had the right to contract for such rate and form of compensation as they saw fit. It is only in cases where there is suspicion, as in Anderson v. Smith, 108 Mich. 69 (65 N. W. 615), that services are used as a cloak to hide usury that the relative value of the services and compensation will be inquired into. The facts and circumstances here do not warrant such suspicion, but should it be thought otherwise and the relative value of services and compensation be a proper subject of inquiry, the conclusion would be that the compensation as related to the services was no more than fair and reasonable. We must deal with the situation at the time the contract was made. The services required of the defendant were neither easy nor unimportant. They were all serious, and some difficult, and called for prompt, constant, and intelligent attention. To his efforts alone the success of the enterprise upon which the parties at that time engaged is due. As compensation for those services, in so far as they were for the benefit of the complainant, the defendant was given one-eighth of a tract of land, the highest offer the complainant was able to get for a quarter of which was $1,500, the whole of which price, plus taxes and interests, the property must pay before the part given to the defendant would be of any value. This offer of $1,500, so far as the record advises us, was for an undivided one-fourth of the tract, surface, and minerals, but if only for the surface, it will be recollected that neither then nor at the hearing did the complainant or any one place any mineral value on Weymer’s Field. Furthermore, whether the one-eighth interest in the land would ever be of any value depended on contingencies; whether the land boom then in its inception at Iron River would continue and would not halt or collapse; whether the other owners would join in a plat, and if so, whether they would agree with the defendant on prices and terms of sale; whether a market could be found for the lots and the unplatted portion of Weymer’s Field, which would produce the redemption and tax money and the interest thereof, all expense attending the sale of the lots, and leave any surplus. When the trust deed was signed and delivered it could not be said with certainty that an undivided one-eighth interest of Weymer’s Field was worth $1 above the redemption money, which was approximately $1,500, plus taxes and the interest, which might run one year or any number of years, and it can be said with certainty that $1,500 was the best price which the complainant could obtain for double that interest in the land, and which price he was ready to accept. This case is unlike Anderson v. Smith, supra. There the contract provided how compensation for the services of the trustee should be ascertained and paid, outside the item which it was sought to recover as for services, and which was not contingent or uncertain, but fixed and certain, and it appeared the services contemplated and actually rendered were trifling, and it was clear the item for which recovery was. sought could have been intended only as interest on the loan. “The fact that commissions on sale of lots was allowed in the accounts of the defendant is not entitled to a place in the discussion of the question of usury. The trust deed does not provide for commissions, and their allowance was the subject of a subsequent agreement between the parties, the effect of which was to add to the defendant’s compensation, but not to substitute commissions for the land transfer provisions of the trust deed.” We are therefore of the opinion that the contract is not usurious, as we are satisfied of the bona fides of the claim of the services rendered and to be rendered under the contract, and of the reasonableness of the compensation therefor provided. It does not therefore come within that class of cases where it has been held that: “No disguise of language can avail for covering up usury or glossing over a usurious contract.” Conti nental National Bank v. Fleming, 170 Mich. 624 (134 N. W. 656). Paragraph 8 of the complainant’s bill calls attention to an error which was due to the oversight of the scrivener in drawing the instrument. This error is conceded by the defendant, and was corrected by the chancellor in his opinion and decree. The question has also arisen as to whether under the pleadings filed the court could give the relief granted by the decree made herein, it appearing that the bill of complaint simply prayed for an accounting and a quieting of the complainant’s title to the premises, and that the defendant be required to convey to complainant all the premises, and also contained a prayer for general relief. The defendant’s answer denies the allegations of the bill of complaint, and sets up the alleged settlement of November, 1910, which occurred after the bill of complaint was filed, but asks for no affirmative relief. The failure of the defendant to ask for affirmative relief and to file an answer in the nature of a cross-bill presents, in our opinion, insurmountable difficulty in affirming the decree of the court below in all respects. It has been held by a long line of decisions in this State that a defendant can only obtain affirmative relief by an answer upon incorporating in the answer the essential requirements of a cross-bill. The pleadings are not framed so as to make it possible to grant the relief given to the defendant. Village of Trenton v. Rucker, 162 Mich. 19 (127 N. W. 39, 34 L. R. A. [N. S.] 569), and cases therein cited; Tuthill v. Katz, 174 Mich. 217 (140 N. W. 519). We are of the opinion that with the exception of the error complained of in paragraph 8 of the bill, and which it is conceded should be corrected, the other relief prayed for in the bill should be denied, and that the decree of the court below, in so far as it grants affirmative relief to the defendant, cannot be sustained. Such relief must be sought for in another proceeding. In view of this conclusion, no costs will be allowed to either party. Brooke, C. J., and McAlvay, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.
[ 5, 57, 36, -30, -5, 20, 58, 8, -14, 33, 57, -45, 14, -17, -35, -5, -14, -74, -32, 0, 7, -30, -13, 9, 13, -30, 69, -56, 26, -35, -4, -32, -35, 45, 13, -8, 40, -58, 31, -20, -31, 11, 37, -9, 3, 51, -13, -76, 18, -20, 18, -15, 24, 42, -16, -13, -12, 18, -14, -37, 20, -52, 31, -29, 8, 45, 7, -5, 49, -24, -2, -11, 2, -24, -16, 17, -8, -31, -50, -22, -33, -43, 57, 41, -46, -13, -37, -9, -23, -1, -15, 26, 1, -4, 36, 0, 30, 38, -21, 17, 11, 55, -13, 2, 16, -14, 15, -33, 29, -15, -17, -48, 17, -2, -43, -22, -41, -16, -10, -2, -15, -7, 32, -20, -2, 33, -41, -11, -9, 10, -6, -1, -19, 17, -34, -18, 2, -61, 0, 2, 24, -45, -24, -73, -26, 8, 2, -47, 59, 13, -45, 14, -7, 53, 20, 6, 24, 12, -5, 8, 36, -24, 18, -34, -61, 14, 3, -30, -11, -28, 19, 53, -41, -66, 22, -14, 56, -22, -25, 5, 33, 43, 24, -25, -22, 14, -8, -33, -5, 19, -2, -2, 14, 0, -73, 0, 36, -41, 12, -13, -28, -28, 28, 15, -12, -4, -24, -2, -17, 27, 13, 20, -34, 21, -57, -15, -24, -19, 20, -3, 16, 67, -21, 24, -9, -33, 63, 7, 1, -20, 3, -72, 11, -27, -29, 29, 87, 25, 17, -23, -51, -22, 4, -22, -31, 9, -29, -35, -12, 34, -55, 5, -50, -25, -20, 16, -38, 1, -46, -13, 8, -13, 0, 45, -20, -25, -36, 2, -31, -34, 12, -32, 30, 19, -39, -27, 23, 20, -31, 0, -1, -39, -7, 34, -13, 17, 12, 14, -36, -6, 6, -5, -2, -34, 47, -16, -14, -27, 37, 11, -62, -34, -15, -25, 4, -8, 0, 9, -17, -5, 33, -13, 2, -18, 61, 3, 25, 17, -34, 11, 79, 7, -11, 27, 0, 12, 16, -19, -6, 33, -34, -27, 7, 11, -12, 0, 11, -5, -28, -13, 36, 20, 13, 30, 20, 5, -20, 0, -20, 22, -8, -1, -29, 12, 29, 11, 36, 34, -12, 56, 26, 36, -4, -23, -8, -25, -57, -54, 10, 29, -39, 44, 3, 20, -7, -42, -83, 22, -36, 19, 22, 40, 59, 73, 41, -37, -21, 0, -34, -11, -34, 5, 0, 7, -12, -34, 14, -45, -54, -53, -12, 40, -14, -36, -25, 7, -20, -21, 41, -17, 40, -7, 39, -14, 31, 21, 48, 29, 27, -10, 14, 11, -13, -10, 26, -40, 31, -4, 7, 8, 4, 35, 41, 1, 56, -23, -13, -1, -41, -2, 42, 27, 6, -6, 15, -15, -59, -12, 76, -45, -4, 28, -3, 50, -35, 28, 51, 0, -13, -51, 25, -15, 30, 26, -20, -52, 19, -5, 15, 35, 9, 7, -31, 9, -14, -32, 25, 28, 16, -12, -43, 11, 16, 38, -11, -47, -41, -24, -34, 9, 44, 6, -10, 4, 9, 4, -56, -21, 55, 50, -20, -11, 36, 39, 33, 4, -20, 14, 16, 42, 4, -53, 25, 32, -8, 30, 16, 3, 7, 21, 0, 6, -20, 10, -8, 5, 15, 5, 36, -40, -51, -37, 7, -14, -11, 24, 22, 28, -40, 0, -16, -9, 52, 48, 0, 51, -21, -41, -10, 5, -26, -11, 4, -19, -14, 8, -25, -20, 1, -34, -12, 24, -6, -48, 29, -43, 31, -15, -40, -14, -16, 51, 74, -16, 16, -31, -29, -12, 14, 25, -10, -28, 25, -64, 5, 11, -4, -8, -6, 18, 5, 20, -37, 17, 7, -25, -27, 15, 9, 20, 18, -42, -6, -1, -4, -14, -13, 57, -2, 26, 2, 23, 40, 30, -5, 13, 55, -4, 43, 11, 67, 24, 44, 3, -8, 3, 19, -16, -45, 20, 10, -37, -15, -7, 25, -7, -22, 35, -7, 8, -2, 16, -68, 8, -61, -27, 2, -14, -14, -44, -55, 11, 43, 24, 58, -45, 14, -30, 15, -33, 14, -12, 11, 29, 2, -7, 51, -3, 39, 59, 19, -12, 27, -15, -25, 36, -33, 10, 50, -21, 8, 5, 39, 15, 23, -27, 22, 3, 2, 16, 13, -2, 12, 38, -30, -5, 26, 36, 21, -41, -18, -30, 5, 16, -4, 0, 53, -22, -11, 12, 28, -10, 41, -11, -10, -3, -7, -26, -30, 5, -23, -40, 31, -53, 19, -30, 1, -15, -5, 39, 4, 6, -6, -8, -27, 24, -19, -5, -45, 14, -6, -8, -13, -4, 15, -11, 18, 24, 8, -21, 14, 29, -58, -10, 42, -59, -36, 6, -32, -8, -16, 22, -11, -37, -16, 8, -10, -24, 9, -32, -67, 4, -15, -32, 41, 7, -9, 5, 55, -31, 24, -39, -5, -47, 8, -8, 37, 42, 37, 19, -17, -48, -16, -8, -33, 22, 33, -45, -10, -23, 2, -44, -16, 4, 47, 5, -17, -22, -22, 8, -24, 5, -32, -33, 2, 23, -14, 17, -8, -5, -14, -9, 14, 16, -22, 38, -1, 14, -12, 31, 3, -46, -22, 28, 46, -60, 24, 11, -40, -7, 38, -53, -11, -4, 12, -31, -28, 6, 11, 16, -27, -3, 15, 27, -28, -14, -30, 42, 16, -11, 44, 0, -27, -12, -3, -38, 20, 32, -8, 2, 0, -36, -29, 25, 8, 5, 23, -26, 6, -45, -54, -6, 7, 24, 2, 23, 64, 16, 7, 19, -19, 20, -26, 3, -20, -28, 0, -64, 8, -5, -1, 20, -1, -31, 21, -5, 26, 31, 9, 28, 15, 7, -33, -3, -57, -16, 11, 15, -27, 14, 13, -14, -33, 3, 26, -48, 52, 11, -17, 53, 22, 33, -61, 17, 39, -35, 41, -16, 28, 20, 14, 10, -22, -3, -10, 21, 53, -41, 46, 70, -32, 20, 16, 63, 37, -2, -31, 15, -54, -13, 26, -9, 4, -18, 39, -1, -2, 0, -14, -1, -2, 4, -52, -26, 3, 22, 14, 57, 16, -45, 12, -31, 20, 12, 41, 24, -17, -19, -3, 17, -1, 30, -16, 30, 36, 3, 41, -3, -13, -24, 38, -44, -2, 23, 37, -18, -4, 15, 12, -39, -65, -3, 15, -12, -12, 65, 0, -8, 23, 0, 39, 10, -38, 58 ]
Per Curiam. An order having been made that the respondent, circuit judge presiding in the twelfth judicial circuit, show cause why a peremptory writ of mandamus should not issue to compel him to set aside and vacate an order made by him in a cause recently pending before him in the circuit court for the county of Houghton entitled the “People of the State of Michigan v. James Cooper, Arthur Davis, William Groff, and Edward Polkinghorne,” wherein said respondent by said order, dated the 19th day of January, 1915, directed that the verdict and judgment finding the above-named defendants guilty of the crime of manslaughter be vacated, and that á new trial be granted, and the defendants remanded to the custody of the sheriff of Houghton county, and enter an order granting the motion of relator made on the 25th day of March, 1915, wherein the said relator prayed the respondent to set aside his said order of the 19th day of January, 1915, granting a new trial in said cause, and, further, that said respondent be directed to remand the above-named defendants so convicted to the custody of the warden of the State House of Correction and Branch of the State Prison in the Upper Peninsula at Marquette, Mich., to serve out the remainder of their sentence, and, the said respondent having made due return to said order, the following undisputed facts appear: At the January, 1914, term of said circuit court the said case in which said defendants were charged with the murder of one Stephen Putrich was tried before said respondent, and on February 15, .1914, the said defendants were found guilty of manslaughter by the jury therein. Immediately following the verdict and before sentence, a motion for a new trial, based upon a number of enumerated grounds, was made, argued, and denied, and thereupon, on February 16, 1914, the respondent sentenced each of said convicted defendants to imprisonment in the said prison at Marquette, and immediately thereafter said defendants were taken to said prison, where they began serving their several terms of sentence so imposed. The January term of said circuit court began on January 6, 1914, and ended on April 5, 1914, and said cause was tried and said defendants sentenced during said term of court. The April term of said court began April 6, 1914, and ended on September 5, 1914. The September term began September 6, 1914, and ended on the 1st day of November, 1914. On July 29, 1914, counsel for said convicted defendants filed a motion for leave to move, and did move for a new trial upon 25 specified grounds relating to the charge and the weight of the evidence, and said motion came on to be heard before respondent September 4, 1914, and he took the same under advisement, and said motion was undecided and undetermined on September 29, 1914. On the last-named day counsel for said defendants filed in the office of the clerk of said court a motion entitled in said cause for permission to amend the motion for a new trial theretofore filed, by adding another reason to said motion, to stand as reason No. 26, as follows: “26. For the reason that each and all of the respondents were unfairly prejudiced before the jury by the prosecution, at the opening of the rebuttal by said prosecution, when Mr. Nichols, the assistant prosecuting attorney, made the following remark: T would like to offer in evidence the deposition of John Callaghan, taken in New York, on the part of the respondents, if they have no objection.'" Thereafter, and on November 4, 1914, counsel upon both sides appeared, and the matter was submitted to the respondent upon the merits, as to the alleged error committed by the assistant prosecuting attorney in offering such deposition in evidence in the presence of the jury, and thereupon respondent took the matter under advisement. On December 30, 1914, the respondent filed with the clerk of said circuit court his findings and opinion upon said motion, and decided and determined that the motion so far as originally filed upon July 29, 1914, should be denied, and did deny the same; but in relation to said matter of offering said deposition in evidence, respondent held and determined that it was prejudicial error, and upon that sole ground granted a new trial. On January 19, 1915, respondent, presiding in said court, caused to be entered a formal order, vacating the verdict and judgment, and granting a new trial in said cause and directing the warden of said prison to deliver said convicted defendants to the sheriff of Houghton county, to be held until delivered by due course of law. Subsequently the said sheriff, in pursuance of said order, took said defendants into his custody, where they now are, unless they have been admitted to bail, of which last matter this court is not advised. On March 25, 1915, relator, believing that the order granting said new trial was void and without authority of law, filed a motion in said circuit court, praying the court to set aside said order for the reason that the circuit court for the county of Houghton had no power, authority, or jurisdiction to grant said defendants a new trial upon January 19, 1915, or upon December 30, 1914, for the reason that the ground upon which said order was based was not filed in said cause until after the expiration of the term following the conviction of said defendants, and because the court had no power or authority to grant a new trial except at the same term, or the next term, after the conviction of said defendants; and, the defendants having been convicted in the January, 1914, term of said court, the respondent, in order to retain jurisdiction so to do, was obliged and required to grant a new “trial within that term, or the April term following, and the order granting the new trial was not made until after the lapse of more than two terms. Said motion also stated as a further reason for vacating the order for a new trial that no error was committed in offering said deposition, and that respondent in granting a new trial did so without jurisdiction in the premises, and that such action was an abuse of judicial discretion. Said motion was heard on April '2, 1915, by respondent presiding in said circuit and was denied. In his opinion denying the motion to set aside the order granting a new trial (and which is referred to in his return and made part thereof), after referring to the argument of the motion of July 29th, respondent said: “On November 4, at Marquette, the people were again represented by both the prosecuting attorney and his assistant, and, upon the motion for leave to amend coming on to be heard, the people, in open court, expressly consented to the granting thereof, and the same was thereupon granted. The original motion was then, and was thereafter, treated by the court and counsel as amended accordingly. The twenty-sixth ground was then argued upon its merits. At the conclusion of such argument the people asked for time to file a brief touching the twenty-sixth ground, whereupon it was agreed between counsel, and ordered, that the people should have a reasonable time to file and serve their brief touching the twenty-sixth ground, and that the respondents should have a reasonable time thereafter, to file and serve their brief in reply. “Respecting the filing of such briefs, counsel for both sides were reasonably prompt, but the trial of cases in the twenty-fifth circuit left no time after the briefs were received for consideration of the motion until the lull occasioned by the holiday season. During the holiday recess the authorities were examined, the matter was finally considered, and the findings were drawn up, and filed December 30, 1914. Then followed necessary'correspondence with Mr. Nichols regarding the appointments to prosecute, and as soon thereafter as the business of the twenty-fifth circuit admitted of the absence of the judge, which was January 19, 1915, the formal order for a new trial, and for delivery of the respondents by the warden of the prison to the custody of the sheriff, was entered, and on the return of the respondents to Houghton and their presence in court the following day, orders appointing Mr. Nichols to prosecute, and Mr. Lucas to assist, and letting the respondents to bail, were entered. “That the motion of .July 29th was not filed in time, or that the motion to amend was not filed in time, or that the court was without power to grant a new trial after the conclusion of the term succeeding the term of conviction, was not raised or suggested, directly or indirectly, by or on behalf of the people, at any time until the filing of the pending motion, and not only were the orders granting leave to move for a new trial and to amend the motion by adding the twenty-sixth ground expressly consented to by the people, but the court was explicitly assured that any objection which the people might interpose to the granting of such • orders might be considered as waived, and that no objection was, or would be, made to the granting thereof. The limitation of the statute was not specifically mentioned by court or counsel, but the court had the right to and did suppose that counsel had it in mind.” After referring to the orders of April 2, 1915, one nunc pro tune as of September 4, 1914, granting leave to file motion for a new trial; and one nunc pro tunc as of November 4, 1914, granting leave to amend the motion, and reciting that both orders were made by the express consent, in open court, of the people, they waiving any objection to the granting thereof, the respondent in his opinion further says: “In the brief filed on behalf of the people in support of the pending motion, it is conceded the motion for a new trial of July 29th was filed in time, and that if a new trial had been granted for any reason therein set forth, it would not be subject to attack on jurisdictional grounds. The pending motion, as is said in the brief of the people, ‘is directed simply to the so-called twenty-sixth ground of the motion, and the action of the court thereon/ “The contention of the people is that, the twenty-sixth ground, on which the motion was granted, having been added to the motion under the order of November 4, 1914, after the conclusion of the term following the term of conviction, it should not be treated as relating back to the date of the motion of July 29th, but as a new and independent motion which was filed out of time. In other words, the claim is that a motion for a new trial of a criminal case which was filed in time, cannot be amended by adding an additional ground, after the time specified in the statute for filing the motion has expired, with or without the consent of the people. That the court may, in its discretion, allow such amendment after the time has passed is sustained in Texas (Tores v. State [Tex. Cr. App.] 166 S. W. 523), and denied in Missouri (State v. Hunt, 141 Mo. 626 [43 S. W. 389]), and that the court has such discretionary right respecting the amendment of motions for a new trial in civil cases, is affirmed in Georgia, Kentucky, Minnesota, Ohio, South Dakota, Texas, and Canada, and is denied in Iowa and Kansas, and also in Nebraska and Missouri, except as to grounds the movant was unavoidably prevented from including, at the time of filing the motion. See 29 Cyc. p. 959, and notes.” The opinion of respondent in full is too lengthy, to warrant us in inserting it here, but it has been duly considered. It concludes as follows: “The time limit of the statute relates only to motions for new trial made by the convicted person. None of the cases in this State involving the statute touch the right of the trial court to grant a new trial on its own motion. As the statute reads, the trial court may, on its own motion, grant a new trial ‘when’ (whether before or after the term succeeding the term of conviction) ‘it appears to the court that justice has not been done.’ If the position of the people on this motion is given full credit, it only establishes _ that a respondent himself has no right to file a motion out of the statutory time, or out of the statutory time to amend a motion filed in time, by adding a, new ground, but it does not follow that the court on its own motion may not, at any time, suggest new ground and act thereon, which practically was what was done in this case.” • It is the claim of counsel for the respondent that the statute (section 11963, 3 Comp. Laws, 5 How. Stat. [2d Ed.] § 15134), relating to the granting of new trials in criminal cases, is directory, and that a strict observance thereof, so far as time is concerned, is not a condition precedent to the granting of a new trial. The statute is as follows: “The court in which the trial of any indictment shall be had, may at the same term, or at the next term thereafter, on the motion in writing of the defendant, grant a new trial, for any cause, for which by law a new trial may be granted, or when it shall appear to the court that justice has not been done, and on such terms or conditions as the court shall direct.” In People v. Marble, 38 Mich. 309, it was said that, at common law, a new trial was not granted in cases of felony, and that the provisions in this State allowing it are purely statutory. In that case the statutory time for making the motion had expired, and this court said: “In this instance a new trial has been refused by this court on exceptions, and by the circuit court on a motion heretofore made in season. We think the statute fixing the time for such a motion cannot be enlarged in its operation; and, as there is no such remedy at the common law, the party is confined to the statutory remedy, which is now barred by lapse of time.” See, also, Frazer v. Judge of Recorder’s Court, 112 Mich. 469 (70 N. W. 1042). In Hubbard v. State, 72 Neb. 62 (100 N. W. 153, 9 Am. & Eng. Ann. Cas. 1034), it was held that the provisions of the statute limiting the time within which a motion for a new trial, in a criminal case, must be made, are mandatory. The reason for the rule is there stated as follows: ‘We find no authority for saying the district court possesses the inherent or common-law power to grant a new trial in a criminal case, outside of statutory authority, as justice may demand. The authorities point rather to the contrary. In Dodge v. People, 4 Neb. 200, it is declared in the headnotes: “‘At common law courts had no power to grant new trials in cases of felony, and it was held that they had no power to revise or correct their judgment in such cases.’ “In the opinion it is said by Maxwell, J.: “ ‘At common law the finding of the jury of the guilt of the accused was conclusive of that fact, and the court possessed no power to set the verdict aside and grant a new trial on the merits, on the motion of the accused, even where the verdict was clearly against the weight of the evidence’ (citing Hilliard, New Trials [2d Ed.] 114; Queen v. Bertrand, 1 L. R. P. C. 520; The King v. Fowler, 4 Barn. & Ald. [Eng.] 275; 1 Ch. C. L. 653). “And continues the author: " ‘Therefore the utmost caution was required in capital trials, in favor of life, and if an irregularity materially affecting the trial occurred, to the injury of the accused, the court usually represented such matter to the crown, and a pardon was granted’ (citing Commonwealth v. Green, 17 Mass. 417). “The authority of the district courts to grant new trials in criminal cases, and especially after the term at which a conviction is had, must, we think, if existent, be found in the statute; and, if not there, the remedy is by an ¿ppeal to the executive who is clothed-with the pardoning power. As reason for differentiating regarding relief against judgments in civil and in criminal cases, it may be observed that the judgment in the civil case, when rendered, becomes fixed and a finality, except as the courts possess jurisdiction at law or in equity to grant relief against it in a proper case, while the judgment in a criminal case, in so far as its effectiveness is concerned, is always open to modification or annulment by an appropriate appeal to the pardoning power, against the exercise of which time does not run.” If the views expressed by the learned circuit judge are correct, then the circuit court may, at any time “when it shall appear to the court that justice has not been done,” grant a new trial on its own motion. We do not so understand the statute. The words last above quoted are limited and controlled by the preceding clause: “at the same term, or at the next term thereafter.” Otherwise the circuit court would never lose jurisdiction of the case, and might grant a new trial, on its own motion, years after the conviction. Such we think’ was not the intention of the legislature in the enactment of the statute. It must be conceded that the twenty-sixth ground of motion for new trial was a new ground and in no way germane to the grounds, set forth in the original motion. Leave to file it was granted on November 4, 1914, which was after the close of the third term of that year, and the conviction was had in the first term. In People v. Swartz, 118 Mich. 292 (76 N. W. 491), the respondent, having been convicted at the May term, applied for a new trial, which was denied at the October term. In July following he made a motion to have the application for a new trial reheard, upon the ground of newly discovered evidence. It was held that this was practically an application for a new trial, made more than a year after the case was tried, and came too late (citing the statute and the Marble and Frazer Cases). This statute was again referred to in Hayes v. Circuit Judge, 125 Mich. 277, 280 (84 N. W. 141, 142), where it was said: “The statute authorizing a new trial in criminal cases limited the time in which the application must be made.” To the same effect are the following cases: Register v. State, 12 Ga. App. 688 (78 S. E. 142); Kinch v. State, 70 Tex. Cr. R. 419 (156 S. W. 649); Parker v. State, 10 Okl. Cr. 541 (139 Pac. 708); State v. Adams, 84 Mo. 310; State v. Hunt, 141 Mo. 626 (43 S. W. 389). In the last-cited case the court said: “If a motion for a new trial can be amended, or a supplemental motion filed after the expiration of four days after the trial [the statutory time] then for the same reason it can be done any number of days thereafter, which is contrary to the plain letter of the statute.” The same point was also ruled in Mt. Vernon Bank v. Porter, 148 Mo. 176 (49 S. W. 982), and State v. Mason, 18 Mont. 362 (45 Pac. 557). In civil cases the same rule has been applied where there were statutory provisions. See Mirrielees v. Railroad Co., 163 Mo. 470 (63 S. W. 718); Gullion v. Traver, 64 Neb. 51 (89 N. W. 404); Perry v. Eaves, 4 Kan. App. 26 (45 Pac. 718); Culp v. Steere, 47 Kan. 746 (28 Pac. 987); Dutton v. Seevers, 89 Iowa, 302 (56 N. W. 398); Blue Creek Land, etc., Co. v. Anderson, 35 Utah, 61 (99 Pac. 444). Other cases might be cited to the same effect. While there are cases holding the contrary view, we think that the great weight of authority is to the effect that an amendment containing grounds for a new trial, not germane to those stated in .the original motion, cannot be introduced or permitted after the statutory period for making the motion has expired. Was there consent or waiver by the people? Upon this point the relator says: “It is not a( fact that the people consented to and waived the question of the statute of limitations, but did consent to the filing of .the so-called amendment and the presentation of the question upon the merits. But, assuming for the sake of the argument that a full, free, and complete consent was registered for the court to hear this matter upon the merits, and a waiver of the question of time of presenting the motion was announced, yet I contend that such consent and waiver conferred no jurisdiction upon the court to grant this motion for a new trial, where it had none without the consent or waiver.” This court has never held that jurisdiction of the subject-matter can be conferred by consent or waiver. In the recent case of People v. Swift, 172 Mich. 473 (138 N. W. 662), the respondent was convicted in the December, 1910, term. The first motion for a new trial was dated April 26, 1911, and the second September 5, 1911. The February term intervened before the first motion was made. Counsel for the respondent there said: “Unless the failure of the prosecuting attorney to raise this point in either the circuit or the Supreme Court is a waiver of the right of the people to insist upon the time limit for making motions for a new trial, the court may feel that, under former decisions, the motion was made too late” (citing Frazer v. Judge of Recorder’s Court, 112 Mich. 469, 70 N. W. 1042). Justice Steere, speaking for this court, said: “In view of the facts that counsel for the prosecution have remained silent upon the subject, while counsel for the defense have so frankly called attention to it, and that both sides have fully briefed the motion, we have thought it best to treat the same as though the point was waived, although not satisfied under the case above cited that this can be done.” In Ex parte Holmes, 21 Neb. 324 (32 N. W. 69), the statute fixed the time within which a motion for a new trial in a criminal case might be filed to be during the term at which the verdict was rendered, and, except for newly discovered evidence, within three days after the verdict was returned, unless unavoidably prevented. It was held that the filing of a motion for a new trial, by leave of the court, and by the consent of the district attorney, at a term of the court subsequent to the term at which defendant was tried and convicted, and six months after he had been imprisoned, conferred no authority upon such court to set aside the verdict and judgment and grant a new trial; and in such case, where the motion was sustained and a new trial granted, the order being void, it was held that the warden of the prison had no authority to surrender the prisoner to the sheriff, and a writ of habeas corpus was denied the prisoner. The decision of the case was placed squarely upon the ground that the court had lost jurisdiction of the case. The authority is uniform that jurisdiction of the subject-matter cannot be conferred by consent of the parties, or by want of objection, upon a court, where, by statute, it has none. 1 Bishop’s New Criminal Procedure, § 123, states the rule as follows: “Jurisdiction comes solely from the law, in no degree from consent of litigants. So that neither consent nor anything else can authorize a court to act in a cause outside the sphere which the law has ordained for it.” Many cases are cited by the author, including Commonwealth v. Adams, 92 Ky. 134 (17 S. W. 276). See, also, 12 Cyc. p. 222, and cases cited. This question of jurisdiction by consent of parties was discussed and decided in Perkins v. Perkins, 173 Mich. 690 (140 N. W. 161), and many cases cited. We must therefore hold that the consent of the people to the filing of the amendment (which was in fact a new motion), and to the argument of the motion upon the merits, on November 4, 1914, did not confer any jurisdiction upon the court to grant a new trial, that the statute is mandatory, and that the order of the court was beyond its jurisdiction. It is unnecessary to discuss the other question. It follows that the writ of mandamus must issue,' vacating the order for a new trial and directing that the prisoners be returned to the Marquette prison, and remanded to the custody of the warden of that institution, to be dealt with in accordance with said sentence.
[ -5, 14, 37, 34, -81, -7, -17, -16, -5, 4, 1, -67, -9, -50, -24, -37, 25, 12, -25, -4, -32, 22, 16, -35, -42, 1, -4, 52, 34, 9, -4, 17, 7, 25, 47, -8, 27, -8, 27, 29, -1, -7, 22, 0, -12, -34, 40, 4, -1, -24, -30, 13, -19, -7, -35, -9, -37, -19, 1, 24, -37, 11, -52, -8, -14, -6, 21, -9, 24, 34, 0, -37, 7, 66, 56, 22, -22, -10, -9, -10, 17, 2, -3, 1, -79, 10, -22, -26, -16, 21, -11, 17, -86, -52, 6, -12, 10, -65, 10, -40, 0, -22, 5, 3, -4, -33, -27, 36, -34, 22, 9, 36, 26, -2, 30, -31, -28, -11, 15, 7, 8, -1, 5, 20, -22, 26, 5, -29, 40, -28, 3, 7, 4, -48, 10, 19, 7, -44, 16, -23, -33, 4, -11, 30, 20, -1, -22, 13, 22, 43, -4, 29, 20, 29, -10, 33, 17, -25, -26, 50, 18, 11, 28, -41, -11, -2, -40, -18, -11, 16, -1, 36, -1, 8, 17, -8, 10, -4, -2, 24, -14, 43, 36, -41, -25, 5, -44, 5, 9, -39, -23, -16, 30, -36, 21, -8, 14, 1, 5, 49, 0, 8, -7, -16, -44, -57, -26, 46, -9, 1, -15, -7, 13, 7, -13, 24, -33, -1, -3, 12, -24, -1, 22, 19, 23, -25, 34, 6, -6, 17, 6, -14, 34, 48, 12, -19, 5, 1, -23, -36, -40, -2, 17, 9, 5, 31, 2, 14, 7, 23, 16, -49, -1, -16, -10, -22, 27, -4, -26, -19, 19, 0, -19, 17, 8, 16, 6, 6, -9, -9, 2, -1, 0, -35, -4, -41, 20, 58, -15, -59, 43, 9, -20, -23, -19, -35, -16, -37, -33, 2, -20, 21, -17, 35, 54, 32, 0, -24, 31, -12, -3, 5, -10, -30, -18, -4, -30, -7, -8, -47, -16, 11, 23, -16, 17, 4, 13, 19, 26, -6, -60, 16, -36, -47, 10, 29, 26, 6, 17, 15, -14, 27, -21, -22, -24, -22, 28, 59, 48, 1, 30, -7, -9, 15, -48, 1, 45, 5, -38, -18, 17, 19, 30, -1, -46, -42, -24, -43, 11, -13, 16, -20, 1, 38, 33, -14, -20, -46, 4, 5, -9, -2, -2, -16, 21, 10, 45, 40, -18, 49, -35, -8, 24, 2, 17, 15, 1, 48, -33, -31, -10, -14, -8, 5, -28, 23, -31, 27, -6, -42, 0, -2, -23, -11, -4, 29, -24, 41, 59, 32, 36, -2, 56, 18, 34, -26, -39, -12, 65, -20, 30, -5, 29, -8, -1, 16, 2, 0, -6, -14, 47, 16, 70, 8, -31, 42, -36, 22, 10, -31, -37, 19, -7, 11, -24, -12, 45, -15, -4, 20, 16, 2, -14, -46, -54, 27, 2, 20, 10, 8, -28, -13, -36, -9, 7, 38, -52, 12, 62, -44, -39, -10, -53, 54, -9, 1, 29, 59, 22, -12, 9, -24, -17, -18, -3, -10, -79, -6, -1, 20, 7, 12, -4, -12, -9, 15, -77, -8, -22, 37, -2, -7, -5, 15, -16, -24, 38, -25, -13, -8, -5, -6, -1, 9, -13, 5, -1, -30, -27, -23, 6, -14, -52, -7, 0, 19, 37, -6, -53, -11, 4, -35, -12, -45, 28, -2, -43, -72, 0, -20, 26, -14, 31, 57, 5, -11, -63, -32, 21, -29, 30, 8, -33, -53, 0, -29, -29, 8, 28, -27, -9, -21, 51, -15, 28, -11, -47, 5, 17, 21, 22, 34, -13, 33, -19, 31, 16, 19, 1, 27, 38, 31, -50, 16, 31, -2, -29, 16, -19, -12, -47, 18, -5, 25, 33, -7, 55, 32, 37, -38, -17, 59, 19, 13, 20, 6, 22, 49, -20, -15, 0, 8, -37, -5, -22, 14, -12, -9, -21, 50, 16, 27, 19, 36, -5, 20, 14, -9, -31, 6, -8, 48, -3, 1, 5, 16, -25, 13, -13, -19, -84, 48, 35, -42, -1, 25, -42, 55, 19, 28, 0, 4, 25, -38, 20, -33, 13, 29, 50, -23, 30, -20, -73, -15, 17, 17, -71, 10, 49, -3, 72, 16, 14, -34, -45, -42, 23, 30, 20, 0, -12, 20, -43, -8, 15, 5, 2, 14, -6, 42, -15, 34, -22, 26, 18, -27, 2, 32, 3, -24, -4, -3, -16, -1, -26, 6, 11, -18, 24, -35, -89, 33, -38, 40, -5, -14, 2, -25, 11, -21, -46, -13, -3, 28, 31, 8, -44, -7, -20, -22, 38, -5, 39, 9, 31, -18, -37, 41, -30, 7, 14, 20, -37, 9, -22, -16, 12, 3, -21, 28, 23, 12, 77, 16, -34, 29, 43, 1, -29, -18, 21, 12, 8, 16, -63, -6, 13, -26, -15, 0, 19, -44, 5, -3, -13, 0, -6, -13, 26, -37, -20, 19, -20, -26, 28, -32, 12, 0, 14, -5, 28, -52, -52, 31, 2, 11, 9, -37, 28, 39, 36, 7, 9, -26, -27, 20, 0, 2, -21, 27, 39, 83, -69, 25, -11, 3, -27, -22, 8, -8, 22, 17, 29, 0, 58, -9, 33, -31, -25, 42, 60, -31, -10, -5, 4, -1, -7, 39, 22, 35, -32, -46, -18, 0, -50, 29, 46, 55, -1, 61, 20, 18, -9, 9, -48, -28, 24, -8, 5, 30, -2, 20, -25, -26, 9, 64, -39, -18, 8, 21, -40, -3, 22, -18, -66, 26, 1, -9, 0, 34, -33, -34, 38, -27, 31, 27, -33, -42, -27, 28, -18, 15, -36, 4, 64, -14, -26, -32, -1, -5, -35, 18, 13, -13, 10, 1, 29, 21, 36, 37, -2, -11, -103, -3, -1, 0, 2, -35, 41, -47, -5, 33, -2, 12, -23, 10, 13, -33, -21, 36, -20, -7, -9, -61, -31, -40, 10, -73, 35, -14, -42, -18, -55, -10, 22, 25, 24, -29, -11, 13, -25, -6, 7, 1, 23, 30, -45, 12, -19, -8, -62, 23, 70, 11, 40, 20, -6, -38, 5, 53, -5, 13, 24, -36, 28, -29, 11, 42, 56, 1, -25, -53, 46, -24, 29, 58, -10, -21, -50, -49, 20, 0, 8, 25, -34, -6, -21, 4, -28, 41, 40, 12, -2, 42, -20, -3, 4, 33, -33, 14, -13, 0, -14, -29, 23, 57, -27, -16, -25, -2, 0, 4, -22, -2 ]
Moore, J. Plaintiffs are manufacturers of sanitary furniture in St. Louis, Mo. Emil Willebrandt was their traveling man in Michigan, and had talked with a Sister in Grand Rapids in regard to the equipment of the new St. Mary’s Hospital. January 25, 1911, he obtained the following paper: “Art Aseptible Furniture Company. “St. Louis, Mo., Date 1-25-11. “Sold to St. Mary’s Hospital. “Address: Grand Rapids, Mich. “Ship by C. & A. R. R. “Terms: $100 per month. 1 No. 1111 sterilizer, 16 in. x 24 in. size...... $320 00 1 No. 1159 water sterilizer, 2 tanks, 16 in. x 36 in., with filters......................... 400 00 1 No. 1061 utensil sterilizer, 20 in. x 24 in. x 22 in..................................... 125 00 1 No. 1051 Fust sterilizer................... 60 00 Basement. 1 No. 1061 utensil sterilizer ................. 125 00 1 No. 1051 Fust sterilizer................... 60 00 $1,090 00 Less 20 per cent.......................... 218 00 $872 00 1 secondhand water sterilizer, 14 in. x 30 in., net ....................................... 128 00 $1,000 00 “All to be steam heated. “We have examined above and terms and prices are as agreed upon. “Goods to be shipped as soon as possible, but date of delivery not agreed upon. “Transportation charges paid by consignee. “This order is not subject to cancellation. “Title of above goods remains with Art Aseptible Furniture Company until last payment is made. “There are no agreements or representations except those set forth above. [Signed] “Sisters op Mercy, “Grand Rapids, Michigan.” Later the following letter was sent: “Under the Management of Sisters of Mercy St. Mary’s Hospital. “Grand Rapids, Mich., March 15, 1911. “Art Aseptible Furniture Co., “St. Louis, Missouri. “Dear Sirs: “We will have to cancel the order for the sterilizers ordered of Mr. Willebrandt on Jan. 25. So please do not send them as we do not think they will be what we want, and can not have them put in. Hoping this will settle the matter we are, “Yours respectfully, “Sisters op Mercy, “Grand Rapids, Mich.” The parties being unable to agree, this litigation ensued. The case was tried before the judge without a jury. From a judgment in favor of the defendants, the case is brought here by writ of error. The trial judge was of the opinon that, as the plaintiffs had not accepted the contract in writing, it could not be enforced. The plaintiffs offered testimony over objection tending to show the Sister who gave the order knew the goods were to be manufactured; that after the order was received the manufacturing was entered upon, and was in progress when the letter countermanding the order was received; that the work was then discontinued and has not been resumed. It is claimed plaintiffs should have been allowed to recover their damages. The argument is that the contract was one for work, labor, and materials furnished, and was not one for a sale of goods, wares, and merchandise, and was not within the statute of frauds. Counsel rely for this proposition and also for the proposition that oral testimony was competent, upon the case of In re Gies’ Estate, 160 Mich. 502 (125 N. W. 420, 30 L. R. A. (N. S.) 318, 19 Am. & Eng. Ann. Cas. 1288), and the cases cited therein. An examination of the case will show that the order therein involved showed upon its face there was work to be done upon the goods in controversy, before they could be delivered; that the goods were in fact completed, and an attempt made to deliver them before the order was countermanded. In the instant case there is nothing in the order to indicate the goods were not in existence when the order was given. Indeed, one of the items in the order was, “1 secondhand water sterilizer, * * * net $128,” .indicating clearly that some of the goods were in existence. See Atwater v. Hough, 29 Conn. 508 (79 Am. Dec. 229). Again, the order states: “There are no agreements or representations except those set forth above.” The order was not accepted in writing by the plaintiffs. In Wilkinson v. Heavenrich, 58 Mich. 574 (26 N. W. 139, 55 Am. Rep. 708), Justice Champlin, speaking for the court, said: “The conflict of authority upon questions of the kind raised upon this record is truly bewildering, and the cases are incapable of being reconciled with each other; a large and respectable class holding that a contract, which the statute of frauds declares shall not be valid unless in writing and signed by the party to be charged therewith, need only be signed by the party defendant in the suit, and that it is no objection to maintaining such suit and recovering upon such contract that the other party did not also sign and was not bound by its terms. 2 Kent’s Com. 510; 2 Stark. Ev. 614; Smith’s Appeal, 69 Penn. St. 480; Tripp v. Bishop, 56 Penn. St. 428; Perkins v. Hadsell, 50 Ill. 217; Old Colony Railroad Corporation v. Evans, 6 Gray [Mass.] 31 [66 Am. Dec. 394]; Williams v. Robinson, 73 Me. 186 [40 Am. Rep. 352]. Another and equally respectable class of jurists hold that, unless the party bringing the action is bound by the contract, neither is bound because of the want of mutuality. Lees v. Whitcomb, 3 C. & P. 289; Sykes v. Dixon, 36 E. C. L. 366, 9 Ad. & El. 693; Krohn v. Bantz, 68 Ind. 277; Stiles v. McClellan, 6 Colo. 89. And see, also, as bearing upon the question, Hall v. Soule, 11 Mich. 496; Scott v. Bush, 26 Mich. 418 [12 Am. Rep. 311]; Liddle v. Needham, 39 Mich. 147 [33 Am. Rep. 359]; McDonald v. Bewick, 51 Mich. 79 [16 N. W. 240]. The cases above cited are not intended to be exhaustive on either side of the proposition. “I shall not attempt a reconciliation where reconciliation is impossible; but, as the question is new in this State, the court is left to adopt such view as appears to rest upon principle. It is a general principle in the law of contracts, but not without exception, that an agreement entered into between parties competent to contract, in order to be binding, must be mutual; and this is especially so when the consideration consists of mutual promises. In such cases, if it appears that the one party never was bound on his part to do the act which forms the consideration for the promise of the other, the agreement is void for want of mutuality. Hopkins v. Logan, 5 M. & W. 241; Dorsey v. Packwood, 12 How. 126; Ewins v. Gordon, 49 N. H. 444; Hoddesdon Gas Co. v. Haselwood, 6 C. B. (N. S.) 239; Souch v. Strawbridge, 2 M., C. & S. 808; Callis v. Bothamly, 7 Wkly. R. 87; Sykes v. Dixon, 9 Ad. & El. 693; Addison on Contracts, § 18; Parsons on Contracts, 449; Utica, etc., R. Co. v. Brinckerhoff, 21 Wend. [N. Y.] 139 [34 Am. Dec. 220]; Lester v. Jewett, 12 Barb. [N. Y.] 502.” See, also, Davis v. Insurance Co., 127 Mich. 559 (86 N. W. 1021); Co-operative Telephone Co. v. Katus, 140 Mich. 367 (103 N. W. 814, 112 Am. St. Rep. 414); McIlroy v. Richards, 148 Mich. 694 (112 N. W. 489); Adams v. Hotel Co., 154 Mich. 198 (117 N. W. 551, 19 L. R. A. [N. S.] 919). We think these cases are controlling. Judgment is affirmed. Brooke, C. J., and McAlvay, Kuhn, Stone, Ostrander, Bird, and Steere, JJ., concurred.
[ -14, 8, -34, -7, -17, 44, 13, -9, 10, -45, -22, -15, -10, 53, -26, -4, 18, -65, 34, -15, 24, -5, -33, 13, -31, 57, -16, -28, -7, -17, -18, -17, 27, -41, -9, -12, -41, 39, 33, -39, -14, 8, 0, 49, 35, 65, 53, 74, 40, -15, 24, -44, -6, -18, 10, -27, -35, 32, -65, -38, 14, -24, 40, 0, 24, -9, 20, 24, -59, 37, 14, -22, 5, -57, -23, -34, -4, -21, -51, -50, 49, -45, -6, -18, -44, 66, -48, 2, 30, 11, 15, -9, 14, 15, 22, -4, 12, 56, 31, 6, -10, 38, -113, 2, 19, 36, 12, -19, -14, 28, -77, -11, 6, 17, 15, -7, -31, 8, 21, 43, -31, 12, 1, -12, 3, 19, 49, 7, 21, -9, 2, -44, 19, -12, 37, 9, 19, -11, 56, 38, 1, 45, 15, 43, -25, 49, 7, -9, -62, -34, -30, 12, 4, -3, 28, 1, -41, -1, 13, 52, -9, -26, 25, -47, -32, 4, -1, -1, 14, -18, -41, 1, 15, 10, -17, 51, -3, -12, -29, -42, 2, -28, 0, -22, 15, -7, 54, 3, 70, 5, 72, -15, -3, -9, -64, 3, -4, 6, 35, -4, 4, -22, -42, -22, 47, -14, -5, 33, -15, 22, 40, 4, -28, -9, 40, -12, -26, -35, -57, -18, -44, -32, 13, 0, -22, 42, 6, 19, 77, -35, -87, 16, -18, 47, 32, -30, -13, 22, 34, 33, -22, -27, -18, -15, -11, -90, -57, -52, -67, 10, -10, 37, 0, 17, -57, 0, -31, 8, -43, 30, -14, 29, -35, 31, 31, 32, -23, -18, 4, 24, -41, 0, 35, -35, -4, -27, 5, 68, 9, 32, 43, -49, 4, -20, 37, -42, 29, -48, -81, -34, -13, 71, 6, -46, 2, 23, -5, 18, 16, -39, -85, -20, -16, 2, 26, 33, -43, 40, 51, -17, -42, -52, -26, -31, 13, -37, -17, 6, -22, 51, -13, 37, -57, 9, 7, 3, -19, 18, 8, 17, -24, -30, 12, -32, -74, -9, -2, 15, 6, -33, 55, 8, -49, 3, -85, 9, 25, 2, 4, -47, 19, 15, 2, 61, 47, 44, -18, 26, 16, 64, 48, 6, -25, 6, -27, -37, 23, 12, 26, 27, -15, -20, -50, -11, 33, -12, -46, 10, -7, 3, -34, 1, -30, 7, -9, 53, 13, 4, 12, -11, -20, -7, 12, 59, 56, -11, -69, -18, -36, -44, -58, 13, -1, -33, 28, 61, 4, 18, 38, 17, -22, 9, -15, -6, -6, -6, -11, -83, -13, -35, 55, 11, -45, -43, 48, -33, 8, -24, 30, 45, -22, 38, -10, 34, -12, -28, -29, -17, -39, -34, 30, 13, -39, 27, 8, -15, 6, 62, 50, 32, 0, 0, 32, 31, 9, 41, -46, 17, 55, -17, -35, -4, 59, 4, -58, 78, 77, 6, -72, -6, -37, 22, 104, -29, -2, 18, 0, 12, -18, 24, -23, 19, 48, -50, 7, 22, -22, 1, -53, 23, 24, 16, -12, -20, 39, 22, 17, 20, -1, 46, 0, -40, -2, -56, 4, -21, 41, 6, 3, -65, 38, 12, -24, -3, 11, -23, -5, 25, -9, 12, -26, 12, 6, 45, -9, 77, 27, -9, 18, -71, -24, -21, -21, 20, -27, -30, 7, -52, -1, 16, 8, -18, 39, -8, 33, -37, -36, -30, -46, -22, 12, -20, -9, -28, 31, 36, -40, 26, -53, -9, -28, 13, -32, -29, 41, 14, -21, 0, 25, 28, -61, 51, -18, 13, -24, 31, -76, -9, -23, 40, 2, -36, -19, -53, 7, 30, -63, 13, -36, 15, -13, 13, -55, 13, 55, 65, -36, 49, 50, -60, -12, -5, 14, -29, -45, 1, -43, 56, 7, 21, -19, -34, 11, -18, -1, 11, 35, 19, 21, -23, -83, 35, -2, 58, 41, 52, 34, -10, -12, 14, 25, 35, -26, 19, 11, 56, 13, 5, 0, 38, -22, -11, -2, -1, -80, 4, 8, -39, 15, 34, 16, -22, 50, 90, -26, -19, 13, -50, 21, 18, -9, -10, 45, 26, 33, 20, 32, -37, -29, -43, 25, -4, -35, 8, 48, -34, -28, -6, 11, 111, 19, 68, -8, 29, 21, 45, 75, -11, -29, -64, -67, 1, 6, -37, 45, -23, -31, -33, -5, -47, -25, 36, -15, 85, 43, 28, 0, -24, 2, -45, 3, -64, 23, 26, 13, 37, 10, 19, 23, -36, 15, 0, 19, 51, 40, -15, -44, 90, -40, -73, -42, -45, 6, 1, 27, 85, -24, -37, -11, -36, 7, 4, 0, 1, 11, 0, -31, 26, -67, 31, -61, -5, 61, -42, 29, -46, 38, 24, 19, 36, -22, -7, 24, -45, 19, 22, 28, 5, -44, 13, 0, 27, -59, 32, 40, -21, -5, -48, 18, -7, -22, -1, 32, 18, -34, -10, 111, 45, 26, -40, 23, 5, 45, -43, -41, 5, -19, -47, -51, -22, 4, -8, -11, 25, -22, -46, -16, -2, 21, 5, -19, -2, 33, -26, 32, -37, -69, -31, -51, 48, 6, 22, -13, -24, 34, -87, -19, 22, 14, -50, 8, 14, -1, -19, 34, 19, -16, 15, 0, 30, -9, 46, 64, 13, 30, -28, 8, 72, -16, 33, -24, -21, -13, 38, 37, 0, -28, -35, -12, -8, 7, -45, -1, 9, -42, 32, 3, -43, 31, 0, 0, 31, 0, -109, 8, -18, -25, -1, 65, 5, 0, -66, 6, 27, 13, 10, 26, 51, -69, 31, -40, -31, 33, 21, 14, -34, 50, -10, 27, -43, -18, -42, 67, 94, 10, 0, -45, 18, -13, -46, -10, 19, 16, 31, -31, -36, 2, 31, -21, 11, -39, -43, 9, 3, 8, 51, 0, -1, -5, 115, 43, -13, 74, 30, -28, -17, -73, -31, -41, -38, 15, -28, 15, 27, 13, 20, 29, -48, -22, 45, 23, 52, -33, 10, -37, 33, 18, -51, -44, 48, 38, 7, -47, 38, -9, -41, -33, 10, 0, -82, 0, -7, -20, -9, 19, 3, -14, -42, 40, 38, -17, -6, 24, 43, -29, 0, -51, 10, -13, -8, 16, 18, -8, -14, -11, -23, -5, -30, 37, -35, -31, -18, 5, 28, -7, -2, -24, -23, 12, -30, 23, 15, 20, -28, 18, -32, -10, -52, 0, -16, 31, -4, -45, 45 ]
Per Curiam. Defendant was charged with second-degree murder, MCL 750.317; MSA 28.549, in connection with the death of his daughter. On January 24, 1980, defendant was convicted by a jury of the crime of voluntary manslaughter, MCL 750.321; MSA 28.553. He was sentenced to a prison term of from 10 to 15 years and appeals as of right. Defendant first argues that the trial court erred in permitting his five-year-old son to testify. Defendant contends that the trial court abused its discretion in finding the witness to be competent on the basis that the trial court’s examination of the witness cast doubt on his ability to testify truthfully and understandingly. See MCL 600.2163; MSA 27A.2163, MRE 601. In People v McNeill, 81 Mich App 368, 377; 265 NW2d 334 (1978), this Court held that a defendant’s failure to object to the admission of the testimony of a child witness as incompetent waived his right to assert error on appeal. See, also, People v Gay, 15 Mich App 484; 166 NW2d 618 (1969), People v Dorrikas, 354 Mich 303; 92 NW2d 305 (1958), People v Lewis, 6 Mich App 447; 149 NW2d 457 (1967). In the instant case defendant did not object to his five-year-old son’s testimony at trial. Accordingly, this issue has been waived. Even if a timely objection had been made, there is no clear demonstration that the trial court abused its discretion. Absent such a showing, the trial court’s decision should not be disturbed. People v Minchella, 268 Mich 123; 255 NW 735 (1934). The court examined the witness (who was of kindergarten age) and determined he was competent to testify notwithstanding his reluctance to respond to some of the questions. From listening to all of the boy’s answers, the trial court ascertained to its own satisfaction that he would tell the truth. See Gay, supra, 486. This comports with the requirements of MRE 601. A subsequent showing of the child’s inability to testify truthfully reflects on credibility, not competency. Next, defendant asserts that testimony regarding a statement made one day after the event by a five-year-old declarant who witnessed the death of his sister was hearsay and improperly admitted. The statement was admitted as an excited utterance. MRE 803(2). Defendant argues that the lapse of one day dissipated the nervous excitement and, therefore, reliance on this exception to the hearsay rule was not appropriate. This Court, in People v Lovett, 85 Mich App 534; 272 NW2d 126 (1978), held that the declarations made by a three-and-a-half-year-old child one week after the event were excited utterances. In reaching this conclusion, the Court examined two factors. First, whether the event which was the subject of the declaration was sufficiently startling to have created nervous excitement lasting for a week, and second, whether the statements were spontaneous or in response to prompting questions. Id., 544. In the present case, the witness testified that the statement was made one day after the victim’s death. The declarant was described as "upset and nervous, and like he was shaking and everything”. When asked by the court if this utterance was in response to a question or if it was spontaneous, the witness said "[h]e just came out and said it. I didn’t ask him nothing”. These indicia of reliability are sufficiently strong. The child was still suffering from the nervous excitement of witnessing his sister’s death. His statement was blurted out spontaneously. It was, therefore, proper to admit the declarant’s statement under MRE 803(2). Defendant also argues that the best evidence rule was violated when the court admitted a typewritten synopsis of his interview with a police officer instead of the actual notes taken during the interrogation. The record, however, indicates that there were no such notes. Defendant’s typed statement was made contemporaneously with the interview and, therefore, is the best evidence. MRE 1002. Two other issues were raised by defendant. Neither issue, however, was properly preserved for appellate review. See People v Cage, 83 Mich App 534, 538; 269 NW2d 213 (1978), People v Lytal, 96 Mich App 140, 153; 292 NW2d 498 (1980). Affirmed.
[ 27, -2, 7, 42, 9, -23, 3, -10, -27, 13, -13, -32, 27, -19, 25, -13, -6, -16, 23, -70, 9, -15, -27, 31, -28, -9, 14, 37, -3, 12, 39, 6, -14, -35, -19, -37, 59, -10, 31, 51, 43, -10, 43, 7, -28, -38, 24, 16, 16, 38, 28, 7, 35, -1, -45, -22, 54, 8, 21, 7, 3, 23, -5, -91, -11, -51, -19, 20, 1, 25, -10, 16, -34, 3, -11, 5, -35, 21, 37, 27, -6, -12, 47, -23, 10, -12, 6, -20, -29, -1, 52, -10, -57, -38, -41, -21, 50, -31, 25, -2, -19, -55, 40, -26, -29, -3, -79, 1, -15, 12, 5, 6, 10, -15, -8, -24, 5, 60, -46, -10, -11, 8, -1, -12, 35, -8, 42, -24, 13, -24, -30, 40, 29, -4, 55, 15, 7, -20, 36, 24, -16, 15, 43, -10, 7, -16, -70, -5, 43, 4, -25, 0, -19, -23, 6, -15, -35, -53, -13, -43, 33, 17, -40, -22, -25, -28, -13, -4, -11, -26, -8, 0, 38, -29, 22, -1, 4, 13, -18, 10, -51, 0, 44, 1, 21, 9, -20, 21, 7, -19, -29, 27, -3, -13, 28, 37, 0, 20, 2, -14, -47, 29, 23, 2, -10, -20, -19, -45, -23, -2, -4, 42, 1, -18, 8, -30, -28, 21, -4, 40, -26, -22, 38, -28, -26, 19, -1, 53, -39, -2, 51, -6, -13, -10, 3, 35, 38, -14, 15, -38, -7, -19, 79, -6, 9, 31, 20, 15, 28, -15, -3, 27, 33, 4, -40, -29, -30, 15, -29, -26, 42, 35, -30, -16, 2, -1, -31, 44, -15, -30, 31, -59, 26, 10, -9, -25, -10, -2, -30, -1, 15, 14, -6, 22, -55, -24, -20, 53, -15, 34, 53, 33, -22, -37, 50, -12, -3, -14, -38, 6, 55, -26, 5, -12, -20, 7, 21, 0, -13, 29, 5, 31, -17, -5, 20, 20, -72, -43, 44, 4, -11, -28, -12, -15, -20, -18, 1, -29, 9, -16, -40, 66, 7, -12, 17, -5, -4, -4, 16, 12, 30, 13, -41, -3, -16, 6, 4, 60, -52, -14, 33, -6, 44, -7, 15, -3, 0, -71, 50, -8, 37, -17, -39, 38, -16, 31, 21, 2, -39, 26, 46, -48, -18, 0, -24, -20, 11, 13, 10, 31, -34, -9, -8, -24, -23, -11, -9, 51, -35, 9, -35, -6, -31, -19, 18, 28, -27, 36, 45, 0, -14, -10, 0, 28, 21, -14, -5, 24, 5, 26, 32, 69, 32, 28, 23, -62, 26, -65, 40, -21, -13, -6, 75, 22, -6, -29, -7, 37, 39, -58, 28, -16, -4, -50, 52, 4, 13, 26, 36, 19, -61, -2, -8, -4, 62, 23, -19, -20, -24, -17, 14, 31, 8, -12, 33, -1, -6, -2, 22, 7, -3, -33, 13, -23, 49, -29, -27, -23, 49, -9, 59, -34, -57, 17, -25, 32, -11, 20, 36, 17, 53, 32, -13, 0, -5, 11, -34, 1, 37, -14, -35, -24, -10, -7, -37, -22, 9, -13, -21, -8, 1, 27, -7, 14, 17, -54, -2, -19, -26, -26, -2, 11, -3, -27, -43, -47, 24, 33, -27, 8, 29, -5, -2, -5, -39, -26, -64, 0, -48, 0, 78, 30, 21, 3, 45, 11, -44, -21, -5, 4, 12, 35, 3, -12, 43, -35, 5, 18, 14, 60, 21, -10, 2, 1, -26, 5, 42, 46, -1, -71, 10, 54, 61, 20, -10, -24, -50, 2, 83, 6, 26, 10, -12, 27, -45, 22, 14, 72, 7, 9, 29, 50, -23, 6, -63, 31, 21, -9, 19, 4, -56, 5, 33, -27, -17, -17, -15, -60, -13, 13, -3, -12, -49, 35, 13, 30, -8, 9, 24, -60, 48, 31, -26, -34, -39, -17, -25, -17, -44, 29, -19, 23, -29, -27, -21, -7, -27, -10, -1, -15, -33, -15, -57, -34, -23, -29, -8, -3, 15, -2, -3, -1, 28, -5, 68, -22, 48, 26, -15, -42, -35, 5, 7, -5, -1, 10, -26, -16, 3, -2, 64, -10, -43, -22, 1, 79, -2, 42, 31, 16, -9, -18, -25, 16, -28, 48, -16, 22, 31, -16, -55, -32, -2, -28, 39, -28, -4, -11, 27, -6, -1, 10, 73, -11, -5, -44, 17, 40, -19, -9, -47, 36, -3, -30, -19, 46, 44, 0, -34, 36, -45, 85, -30, 37, 0, -16, -28, -10, -19, 19, 1, 35, 43, 12, -2, 10, 86, 28, 34, -25, 16, -31, 34, 6, 59, 33, -7, -30, -14, 23, -1, -9, -28, -29, -60, 0, 75, -57, -6, -18, 25, 34, 0, 18, -38, 21, 34, 50, 11, -16, 19, 33, 15, -35, -15, -14, -65, 2, 37, -11, -25, -63, 35, 13, -7, 27, -19, 12, 9, -29, -21, 32, -38, 4, 48, -53, 1, 13, -26, 32, 17, -3, -20, 77, 56, -9, -14, -23, 15, 17, 29, -4, 15, -8, -1, -2, -21, -10, 10, -18, 41, 44, -73, 2, -36, -63, 26, -43, 34, 12, 66, -19, -11, -46, -28, 35, 32, -34, 0, -17, -31, -7, -19, 44, -12, -22, -1, -24, -12, 15, 15, 3, -8, 18, 20, 2, 4, -37, 0, 28, 49, 28, 22, -32, -10, -42, -17, 30, -5, 9, -7, 6, -43, -37, 54, 61, 20, 26, 20, -56, 0, -18, -15, -26, -12, -26, -44, 32, -17, 68, 84, -8, 0, -20, 29, -48, 0, -41, -4, -8, 3, 31, -1, -49, -30, 10, 7, -20, -20, -8, 2, 21, -21, 14, 26, -15, 4, -34, -7, 36, -7, -20, -12, 25, 42, 29, -32, 3, 30, -63, -3, -2, -25, 43, 29, -71, -14, -20, -50, 4, -9, 0, -38, -62, 62, -4, -15, -51, -19, 2, 11, -13, -70, 27, -53, 6, -62, -24, -33, 0, -4, -6, -34, -3, -46, 28, -28, 31, -16, 0, -38, 29, -5, 12, 50, 25, 11, -8, 10, 21, 27, -13, -5, -39, -33, -71, 14, 10, -58, 15, -60, 7, -9, -50, 1, -21, 28, -16, -27, -48, 6, 14, 25, -6, -8, 55, 10, 7, 32, -5, -34, 45, 7, 3, 2, 11, -14, 11, -21, -42, 14, 5, 19, -31, 17, 6, -16, -22, 17, -1, 16, 0, 1, 50 ]
T. M. Burns, J. Coming before this Court on an appeal as of right, the defendant challenges his December 7, 1979, jury convictions of first-degree murder, MCL 750.316; MSA 28.548, assault with intent to commit murder, MCL 750.83; MSA 28.278, and armed robbery, MCL 750.529; MSA 28.797. On December 27, 1979, the defendant was sentenced to three concurrent terms of life imprisonment for these offenses. His convictions arose out of a May 12, 1979, incident in which the defendant and one Kevin Moore robbed a Domino’s Pizza establishment, killing one person and shooting another. After being given immunity by the prosecutor, Kevin Moore testified that at the request of the defendant he procured his brother’s .357-calibre magnum pistol and met defendant in Lansing. After he was shown the escape route by the defendant, Moore and the defendant then went to the defendant’s apartment where the defendant picked up his luggage. After driving through the escape route once more, the witness testified that the defendant removed army fatigues from his duffle bag and got into them. The defendant also put on a beret and sunglasses. While the witness parked his car in a car wash close to the pizza establishment and proceeded to wash it so as not to be conspicuous, the defendant took the gun and left for the pizza parlor. Moore testified that a few minutes later he heard three gun shots and saw the defendant running toward the car. The defendant had the gun and a green bag with the name "Domino’s” written on it in his possession. Moore asked the defendant if he had killed anyone and the defendant responded that he had. Following the defendant’s directions, the witness drove toward Benton Harbor. About 6 a.m., the witness and the defendant got a motel room and counted the money which they had stolen. It amounted to approximately $1,300. Ronald Bailey, the victim of the assault, testified that he and Jim Kretschman were working at the pizza establishment on the morning of May 12, 1979. At about 3 a.m., someone knocked on the door and said that he was from the northeast store. Because of the noise generated by a fan and a radio, Bailey could not understand exactly what he heard. When he opened the door to find out, a person, whom he later identified in court as the defendant, showed a pistol and announced a robbery. Instructed by defendant to go into the office, Bailey saw Kretschman, who was there counting money, put all of it in a green bag with "Domino’s” written on its side and give it to defendant at his cominand. The defendant told Bailey and Kretschman to rip the phone out of the wall, but they were unable to do so. He then told them to lie on the floor with Bailey on top of Kretschman. Bailey heard two shots. One struck him between the shoulder blades, and the other struck Kretschman in the head. Bailey testified that the defendant was wearing green army fatigues, dark sunglasses, and a duck-bill cap at the time of the robbery and shooting. Substantial discrepancies between the testimony of the defendant and Moore occurred at trial. The defendant testified that Moore brought camping equipment, a knife, a gun, and drugs with him to Lansing. The defendant stated that he had not asked Moore to bring the gun. After the defendant had taken one tablet of LSD which Moore had brought with him, Moore inquired about robberies. The defendant indicated that he had a bag with "Domino’s” on it because he had worked for that establishment for about three weeks in 1978. Moore questioned the defendant about everything relating to Domino’s procedures. Sometime between 1:30 and 2 a.m. on May 12, 1978, the defendant was overcome by the combined effects of the alcohol and LSD and could barely walk. Moore placed him in a car where he fell asleep. The next thing that he remembered was that he was waking in Benton Harbor. The defendant disclaimed any participation in the murder or robbery and testified that he had never in his life committed an act of violence. The first claim raised by the defendant in this appeal is that the trial judge erred in conducting an in-chambers questioning of 15 prospective jurors in the presence of the prosecutor and defense counsel but in the absence of the defendant. The questioning concerned the possible prejudice of jurors as a result of pretrial publicity. The jurors were questioned individually, in the presence of counsel, with no objection from the defendant. Our examination of the record convinces us that the defendant’s absence from this part of his trial does not require reversal of his conviction because there is no reasonable possibility that it resulted in prejudice. People v Morgan, 400 Mich 527, 536; 255 NW2d 603 (1977). According to the record, five of the jurors questioned in chambers in the absence of the defendant were dismissed for cause on the motion of defense counsel. No error occurred with respect to the dismissal of these prospective jurors because it is unlikely that the defendant would have wanted them on the jury. Juror Fox stated that he would have given more weight to police testimony. Juror Tousley did not believe that the defendant was innocent. Juror Schmidt was excused because she was required to take medication for high blood pressure. Juror Wilson was excused because she had knowledge of the defendant’s prior forgery offenses. Juror Herbruck was excused because he believed that a robbery and murder had been committed. With respect to the dismissal of these prospective jurors, then, there is no reasonable possibility that the defendant suffered prejudice. Nor can the defendant claim prejudice because he was required to use peremptory challenges to dismiss some prospective jurors whom the judge refused to dismiss for cause. On the second day of trial, when the trial judge realized that it may have been a mistake not to have the defendant present during the in-chambers jury questioning, the judge granted the defendant six extra peremptory challenges to compensate him for not being present when six jurors were questioned who ultimately were challenged unsuccessfully for cause and were dismissed on peremptory challenges. In total, the defendant was given seven additional peremptory challenges because the trial judge believed that he had erred in not excusing one juror for cause on the basis of the juror’s statement that he believed that a crime had been committed. Although it is possible that the defendant may have requested his counsel not to exercise peremptory challenges as to certain jurors had he been at the in-chambers proceeding, it is not likely that this would have occurred. With respect to the jurors who were challenged peremptorily, juror Whitacre stated that she had some prior knowledge of this case based upon newspaper and radio reports. The same is true for jurors Gooch and Curry. Jurors Eppinga, Hawley, Merchant, and Mixon each believed that a crime had been committed. Giving due consideration to the defendant’s argument to the contrary, we find that no error requiring reversal was committed by the in-chambers questioning of the three remaining prospective jurors, Ogston, Mahan, and Keehne. The first was reexamined in the presence of the defendant and could have been removed by exercise of a peremptory challenge but was not. Juror Ogston was seated on the jury. Juror Mahan was reexamined by counsel in the presence of the defendant and subsequently was removed by a peremptory challenge. Juror Keehne was also removed by a peremptory challenge because of her son’s friendship with the Eaton County Prosecuting Attorney. Under these facts, we are convinced that no reasonable possibility of prejudice occurred on account of the defendant’s absence during the questioning of these 15 prospective jurors. Nor are we persuaded by the defendant’s claim that error occurred when the trial judge failed to grant challenges for cause asserted by the defendant against four jurors. There was no error with respect to juror Eppinga because the defendant was granted one extra peremptory challenge to compensate him for the one which he used to remove this juror. Although juror Mixon believed that a crime had been committed on account of newspaper accounts which she had read, she indicated that she could disregard these newspaper accounts and that she had no opinion as to the guilt or innocence of the defendant. Similarly, although juror Lindahl indicated that he felt that a crime had been committed, he stated that he would have based his decision solely on the evidence heard at trial. Finally, juror Zakarjsek also indicated that a newspaper article which he read would not cause him to be biased and that he would base his decision solely upon what he saw and heard in the courtroom. On the authority of MCL 768.10; MSA 28.1033, a trial judge may excuse for cause jurors who have formed an opinion with respect to the circum stances of a criminal prosecution or the guilt or innocence of the accused. This statute further provides, however, that if the juror declares under oath that he can render an impartial verdict according to the evidence and if the judge is satisfied that the juror does not entertain an opinion which would influence his verdict, any prior knowledge of the juror regarding the facts of the case shall not be a sufficient ground for challenge. Studious review of the record before us fails to convince us that the trial judge abused his discretion in refusing to dismiss these jurors for cause. Each of them stated that they had no opinion as to the defendant’s guilt or innocence. See People v Wyskochil, 76 Mich App 468; 257 NW2d 126 (1977), People v Moore, 51 Mich App 48; 214 NW2d 548 (1974). The burden was on the defendant to show that these jurors were biased, and the defendant did not sustain this burden. Therefore, we find that the trial judge did not abuse his discretion. People v Gerald Hughes, 85 Mich App 8; 270 NW2d 692 (1978), Moore, supra. The next claim of error asserted by the defendant is that the trial judge abused his discretion in denying a motion for change of venue on account of adverse pretrial publicity. We disagree. This case is factually analogous to People v Lewis, 95 Mich App 513, 515-516; 291 NW2d 100 (1980). In Lewis, the defendant made a motion for change of venue, arguing that pretrial publicity made it unlikely that an impartial jury could be selected. After selecting a jury, the trial judge denied the defendant’s motion. On appeal, this Court was not persuaded by the defendant’s argument that the jurors could not be impartial after having read certain newspaper articles. In particular, this Court cited the "vigorous voir dire that the defendant’s counsel was permitted to conduct”. Id., 516. The denial of a motion for change of venue is reviewed under the abuse of discretion standard. People v Dixon, 84 Mich App 675; 270 NW2d 488 (1978). The mere existence of adverse publicity and the likelihood that the jury was exposed to it does not necessarily require a change of venue. Rather, it is the burden of the defendant to show that the jurors have a preconceived opinion as to his guilt. As in Dixon, all jurors in this case who were seated indicated that they could render an impartial decision based entirely upon the evidence presented at trial. On the authority of this Court’s decisions in Lewis and Dixon and in light of the five factors set forth by this Court in Gerald Hughes, supra, we hold that the trial judge did not abuse his discretion in denying the defendant’s motion for a change of venue. During his questioning of Kevin Moore, defense counsel asked him whether he had ever been convicted of armed robbery. When the question elicited an affirmative response, defense counsel then asked if this was the only armed robbery in which Moore had ever participated. The prosecutor objected to this question, and in support of it defense counsel argued that it is permissible to impeach a witness by reference to criminal activity that did not result in a conviction if the witness admits to having engaged in the activity. Defense counsel further argued, that "I think it’s proper to show the participation of some probative value as to participation of this witness in robbery, the fact that he may have engaged in some other armed robberies before”. The trial judge ruled that the question was improper because "only convictions can be shown to attack his credibility”. This ruling was in error. Under MRE 608(b), the trial judge has discretion to permit a defense counsel to inquire into specific instances of the conduct of a witness which are probative of truthfulness. Nonetheless, we do not believe that error requiring reversal has occurred in this case. Because the trial judge could have excluded this evidence under MRE 403, it is unlikely that the error was so offensive to the maintenance of a sound judicial process that it could never be regarded as harmless. Both the prosecutor and defense counsel established that Moore had a conviction for armed robbery. The defendant testified that Moore had told him a number of times about the armed robberies that he had committed and further stated that "if indeed an armed robbery or any type of robbery was to be perpetrated we would need someone with experience, and Kevin Moore was the only one I knew had experience in armed robbery”. During both his opening and closing statements to the jury, defense counsel argued that Moore had committed the charged crimes. Finally, the jury was informed of the fact that Moore bad been given immunity, was involved in a plea bargain, had stolen a Supercharger which he had intended to sell for false identification, had stolen diet pills from his mother, and had taken his brother’s gun without permission. In view of all of these facts, it is highly unlikely that defense counsel’s proposed line of cross-examination would have made any difference in the jury’s decision. Therefore, the trial judge’s error in failing to recognize that he had discretion to admit this testimony was harmless beyond a reasonable doubt. Nor do we find error requiring reversal in the trial judge’s questioning of jurors during voir dire regarding whether they would be prejudiced against the prosecutor merely because Kevin Moore was allowed to plead guilty to a lesser charge. This questioning did not seek a commitment from the jurors as to any particular verdict, nor did it bind them to find Moore’s testimony credible. The jury was cautioned about the use of Moore’s testimony inasmuch as he was an undisputed accomplice in the crimes. Therefore, because this question was designed to discover any bias that prospective jurors may have had against Moore solely because he was granted immunity and because it did not entrap, influence, commit, or obligate jurors to find Moore’s testimony credible, the trial judge did not abuse his discretion in asking this question. A prosecutor is also entitled to a fair and impartial jury. The defendant next argues that the trial judge erred in denying his motions to quash the information and to suppress the evidence because the police officers who searched the motel room in which he was apprehended did not comply with the statutory requirements of MCL 764.21; MSA 28.880. In pertinent part, that statute provides: "[A] peace officer with a warrant or in cases of a felony when authorized without a warrant, may break open an inner or outer door of any building in which the person to be arrested is or is reasonably believed to be if, after he has announced his purpose, he is refused admittance.” There is no question but that the arresting officers in this case did not knock and announce their purpose before entering the motel room to arrest the defendant. However, an unannounced entry into a defendant’s residence by police officers seeking to effectuate an arrest may be justified on the basis of exigent circumstances. This Court has held that where a police officer’s declaration of purpose would be futile or an unnecessary formality substantial compliance with the statute is sufficient. People v Charles Brown, 43 Mich App 74; 204 NW2d 41 (1972). Similarly, a police officer has no duty to announce his presence when to do so would permit a defendant to escape justice, would endanger the life or safety of the police officer or the public, or would lead to the destruction of material evidence. People v Strelow, 96 Mich App 182; 292 NW2d 517 (1980). In this case the police were attempting to prevent unnecessary violence by their actions. Although the defendant was entitled to some expectation of privacy in the motel room, this expectation is less than that to which he would have been entitled in his own home. In addition, the offenses with which the defendant was charged were very serious. Finally, the actions taken by the police were calculated to avoid a substantial possibility that their lives would have been endangered had they announced their presence. Therefore, it is our opinion that an exception to the requirements of the statute should be recognized in this case. Likewise, we reject the defendant’s contention that the unannounced entry of the police violated the Fourth Amendment. Exigent circumstances may permit the police to use forced entry without knocking, announcing a purpose, or otherwise identifying themselves. Ker v California, 374 US 23; 83 S Ct 1623; 10 L Ed 2d 726 (1963). The defendant’s arrest was not in violation of the Fourth Amendment. First, it took place in a motel room and not in his own home. Further, the police officers knew that the defendant had recently purchased a .45-calibre Commando rifle, that he had registered at the motel under one of his known aliases, and that he was dangerous, based upon the crimes charged in the warrant. In light of these factors, the police reasonably concluded that they would imperil the safety and lives of themselves and the public were they to announce their purpose. Based on these facts, we hold that the lower court did not err in denying the defendant’s motions to quash the information and to suppress evidence seized as a result of the police search. The defendant also challenges certain statements made in the affidavit supporting the search warrant. He claims that these statements were false and were made knowingly and intentionally with reckless disregard for the truth. He argues that had these statements been removed from the affidavit, there would have been insufficient cause to issue the warrant to search his automobile and the motel room. The defendant concludes that, as a consequence, the evidence seized from his automobile and from the motel room should have been suppressed. Statements made in an affidavit supporting a search warrant may be stricken if a defendant shows that they were made in reckless disregard for the truth or that they were a deliberate falsehood and not merely negligent or innocent mistakes. However, even where such a showing has been made, the inaccuracies in the affidavit will be considered irrelevant if the remainder of it is sufficient to support a finding of probable cause to issue the warrant. Franks v Delaware, 438 US 154; 98 S Ct 2674; 57 L Ed 2d 667 (1978). We have examined each of the statements in the affidavit which the defendant claims are falsehoods. We find that the defendant has failed to prove his allegation that the affidavit is defective. With respect to the statement, "during the course of arrest affiant observed personal effects and baggage known to be the personal effects of David Marsh”, we note that the hearing transcript does not indicate how the affiant knew the ownership of the personal effects and baggage. However, one police officer testified that the owners of the motel picked a picture of the defendant out of a photographic array and informed the police officers that he was in Room No. 3. The defendant was alone at the time of the arrest. Further, one police officer testified that he saw a .45-calibre Commando rifle protruding from a duffle bag in the defendant’s room. This police officer knew that this type of gun had been sold to the defendant by a Lansing gun shop. These facts tend to support the belief that the defendant was the owner of the duffle bag, and, therefore, the statement cannot be said to have been made falsely or in reckless disregard for the truth. Nor do we find that the affidavit is defective because of the statement that the affiant "observed a pair of sunglasses and a baseball type cap in the passenger compartment of [defendant’s] vehicle through the passenger side window”. Both police officers who testified indicated that they had seen the cap and glasses in the automobile. One police officer stated at the hearing that he was not certain as to the type of cap because his observation had been made by use of a flashlight. Notwithstanding the defendant’s testimony that he owned a beret and not a baseball cap and that he had placed his sunglasses underneath his beret so that they would not be visible from the outside of his vehicle, we cannot say that this statement was a knowing falsehood or that it was made with reckless disregard for the truth. The defendant also claims that the affiant lied when he stated that "after affiant advised David Marsh of his rights, per Miranda, David Marsh told affiant that the above stated vehicle was his”. The defendant did testify that he may have told someone that the car was his. Whether the defendant said this in the motel room or in the police cruiser is irrelevant inasmuch as "the time of the arrest” would encompass more than the split second after actual custody of the defendant was taken. We are fully cognizant of the fact that there appears to be a discrepancy between the police officer’s testimony on direct examination, which is similar to the statement in the affidavit, and his testimony on cross-examination. However, he was not asked to explain this discrepancy, and we fail to see how the mere existence of it would lead to the conclusion that the challenged statement in the affidavit was either knowingly false or made in reckless disregard for the truth. Finally, the defendant takes exception to the statement in the affidavit, "[t]hat at the above-stated time of arrest, David Marsh had the Michigan registration, proof of insurance, and title transfer on his person, to the above-described vehicle”. The undisputed testimony establishes that these papers were in a wallet in a pair of pants which defendant put on immediately following his arrest. Although the testimony establishes that the defendant was wearing only underclothing when he encountered the police, we cannot find that this statement was knowingly false or made in reckless disregard for the truth in light of the fact that the term "arrest” reasonably can be used to describe more than just the moment at which the defendant was seized. During the process of his arrest, the defendant did put on a pair of pants in which these three documents were found. Thus, this statement was neither false nor made in reckless disregard for the truth. Finally, our examination of the affidavit convinces us that even if these purportedly false statements had been stricken from it the affidavit would still have been sufficient to support probable cause. We are unpersuaded by the defendant’s argument that the trial judge erred in denying his motion to suppress the evidence seized pursuant to the search warrant. The defendant next complains that the trial judge erred by not granting the defendant’s motion for a mistrial when the prosecutor indicated during his opening argument that a physician would testify that the victim of the assault would be paralyzed for life. We find no error. The grant or denial of a motion for mistrial rests within the sound discretion of the trial judge whose decision in the matter will be reversed on appeal only upon a finding of an abuse of discretion. People v Robertson, 87 Mich App 109; 273 NW2d 501 (1978). Error requiring reversal results only where a trial judge’s denial of a defendant’s motion for mistrial is so grossly in error as to deprive the defendant of a fair trial or to amount to a miscarriage of justice. People v Ritholz, 359 Mich 539; 103 NW2d 481 (1960). The trial judge found that the comment of the prosecutor to which an objection was made would not enhance the sympathy that would doubtlessly occur when the jury saw the defendant’s victim sitting in his wheelchair. The trial judge further found that a reasonably intelligent jury likely would conclude, based upon their own experiences, that a person whose spinal cord was severed by a gunshot would be paralyzed for the remainder of his life. Nonetheless, the trial judge instructed the jury to disregard the prosecutor’s comment, indicated to them that the statement was calculated to elicit sympathy and was not relevant to the defendant’s case, and ordered the comment to be stricken from the record. Based upon this record, we find no manifest necessity to require a mistrial. People v Jackson, 100 Mich App 146; 298 NW2d 694 (1980). Therefore, the trial judge did not err in denying the defendant’s motion. Nor do we find that error occurred when the trial judge permitted the prosecutor, during his redirect examination of Kevin Moore, to introduce a note written by the defendant to Moore while defendant was in jail. The use of this note during redirect examination was not beyond the scope of cross-examination. Defense counsel had asked Moore to indicate the drugs which he and others had used on the night of the incident. Defense counsel’s examination of Moore created the impression that the defendant was under the influence of marijuana at the time of the crime and the impression that Moore’s use of drugs that evening had impaired his memory. The exhibit introduced by the prosecutor rebutted the inference that the defendant was under the influence of marijuana and rehabilitated the credibility of Moore. Therefore, its introduction into evidence was not improper. The final claim of error raised by the defendant is that the trial judge erred in failing to grant a mistrial or to give a cautionary instruction to the jury after certain of its members purportedly saw the defendant in handcuffs. The record fails to establish affirmatively that any member of the jury ever saw the defendant in handcuffs. At no time did defense counsel request an evidentiary hearing on the matter or ask the trial judge to give a cautionary instruction. Because the record fails to indicate that any member of the jury actually saw the defendant in handcuffs and because the trial judge was not requested to give a cautionary instruction, we find no error. People v Herndon, 98 Mich App 668; 296 NW2d 333 (1980). Affirmed. Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966).
[ 14, 4, -38, 7, -37, 11, -61, -22, -7, 31, 16, 5, -6, -13, 20, 27, -11, -16, 16, -39, -21, -41, -19, -6, -34, -43, 29, 32, -56, 10, 28, -9, 77, -83, -1, 25, 35, 7, 4, 44, -22, 0, 28, 17, -40, 4, 55, 11, 45, -45, -16, 12, 38, -16, -3, 13, 12, -10, 25, -1, 41, 19, 1, -17, -29, -48, 22, 1, -10, 15, 2, -28, -12, -16, 10, -9, -58, 33, -33, -63, -14, 12, 11, 0, 1, -19, -8, -19, -3, -16, 5, 23, -30, -16, -1, -19, 25, -17, 45, -16, -29, -20, -86, -12, 12, 44, -27, -58, -64, 20, -44, 31, 92, 18, -12, -24, -47, 16, 4, 57, -11, -4, -11, -15, 76, 11, -22, 12, 12, 16, -27, 43, 54, 24, -74, -18, -17, 24, -25, 12, -17, 49, 6, 33, 9, 5, -24, 46, 10, 35, -34, 3, -40, 11, 2, -4, -8, -10, -67, 25, 13, -61, 33, -2, 12, -16, -18, -33, -6, -29, -31, -2, 5, 15, 28, -8, -7, -69, 2, -65, -26, 34, -19, 10, 9, -32, 29, -12, 5, -19, 15, -4, -26, -21, 23, 9, 21, -39, -52, 26, -9, -86, 25, -53, 9, -9, 77, 32, 45, 21, -1, -2, 23, -17, 0, -14, 11, 20, 17, -46, -87, -26, 0, -18, -37, -17, -60, 7, -51, -28, 31, -31, -25, 64, -2, 5, 18, -60, 56, 8, 6, -39, 13, -10, 59, 46, 0, 15, -13, -19, -27, 8, -20, -24, -15, 1, -3, -14, 1, 36, -30, -5, -39, 28, -12, 74, -11, 9, -49, 20, -17, -18, 12, -9, 3, 21, 16, 70, -9, 11, 56, 13, 3, -12, -3, -48, 1, 31, -8, -11, -15, 1, -28, 4, 27, 4, 33, -59, 4, 17, 6, -10, -13, -25, 0, -34, 58, -15, -57, 5, 66, -4, -12, 13, 79, -19, 6, -2, 22, 6, 70, 50, -15, -43, 42, -20, 23, 14, -43, -32, 4, 55, 7, 43, -13, 25, -30, -8, 37, 5, -39, -19, -3, 27, 9, 6, 23, 49, -29, -47, 36, 8, 18, -22, 19, -26, -31, -25, 25, 5, 61, -59, -43, 51, 19, 0, 27, -36, -3, 18, -12, -33, -19, 0, 8, 23, 19, 2, 7, -9, -30, -15, 22, -6, 6, -30, 7, -49, 24, 26, -79, 2, -23, -26, 31, -21, -70, 11, 27, -11, -22, 1, 36, -10, -8, -1, -21, 47, 31, -24, -14, -2, 28, 46, -28, -22, 5, -46, 26, -16, 65, 45, 31, -66, 17, 9, -51, 25, 9, 6, 32, 23, 18, -57, -13, 15, -41, -46, 8, -44, -54, -16, -42, -61, -6, -2, -58, -46, 2, 24, -8, -1, 26, -56, -81, 45, 7, -5, 17, -48, 33, -44, -29, -14, 51, -13, -77, 2, -1, -19, 16, 31, -6, -17, -80, -6, 33, -6, 26, -7, 1, -8, -3, 30, -54, -43, 2, -7, -24, -8, 37, 25, 13, 22, -1, 96, 19, 11, -30, -14, -19, -40, -44, 1, 0, 22, 36, -12, -33, 3, 0, 33, -30, 8, -2, 6, 0, -4, -3, -10, 22, 10, 5, 47, -66, 27, -19, 0, -51, -22, 18, -17, 23, -55, 67, -4, 6, -7, -19, 3, 76, -10, 32, 66, -36, -23, 56, -34, 35, -16, 47, 7, -4, -72, -25, 23, -11, -44, 7, -42, -52, 13, 47, 61, 5, -12, -12, 3, 45, -10, -23, 14, -11, 8, -30, 35, -21, 24, -42, 91, 3, 62, -101, 30, 14, 11, 52, 61, -4, -28, -48, 31, -21, 3, 40, 6, -52, -19, 0, -31, 66, -19, -18, 26, 41, -26, 19, -1, 24, 5, -15, -10, -32, -35, 8, 6, -35, 11, -72, 10, -1, -10, -12, -2, -5, -26, 29, -28, 23, -44, 0, 11, 1, 25, -15, -33, 5, 25, -33, -45, -29, 91, 9, 9, 45, 21, -8, 24, -3, -27, -49, 11, 15, 11, -6, -46, 22, 19, 3, 1, 26, 52, -53, 6, 34, -33, -12, -28, 28, -10, -15, -21, 26, -37, -14, 28, -59, 1, 15, 28, 8, -36, 9, 19, 39, 15, -10, -42, -37, 66, -45, 33, 16, -31, 53, -13, 35, 39, -7, -14, -13, -28, -38, 10, 20, 10, 51, -41, 23, 22, -37, 54, 55, -3, -9, -12, -35, -27, 0, 75, -28, -48, 47, 27, 26, 14, 33, 52, 7, -1, 41, -35, -10, 31, 12, 21, -35, 11, -48, 63, -45, -12, -23, -34, -16, 0, -14, -26, 29, 35, -14, 45, 41, 56, 21, 48, 77, 0, -41, -8, 22, 5, 38, -15, -2, -33, 33, 31, 60, -21, -61, -66, -34, 35, -53, 44, 11, 22, 6, -52, -46, 52, -51, -17, 31, -47, -5, -21, 22, 4, -18, 33, -13, 48, -27, 15, 16, 34, 41, -14, 14, 22, 44, -14, 18, -29, 37, -5, 19, -3, 74, 15, -7, 6, -16, 41, -32, -57, -27, 0, 50, -21, -7, -66, -15, 22, -26, -6, -51, -16, -1, 19, 45, 16, 1, 12, 2, -12, -7, 30, 24, 4, 41, 41, 27, -6, 44, -20, -31, -30, 5, -48, -8, -15, -43, -45, -22, 34, 28, -64, -13, -30, -43, 32, -12, 27, 53, -26, -19, 44, -5, 21, 32, 2, -5, 27, 9, 9, -13, -51, 45, -40, 77, 37, 44, -33, -43, -1, -41, 0, -25, 13, 19, 6, -17, -36, -19, 1, -13, -73, 10, -47, -59, 52, 42, -35, 26, -3, 32, -5, -35, 17, -1, -3, 14, 12, -64, 8, 30, -25, -52, 28, 59, 55, 46, -36, 28, -25, -6, 39, -8, 8, -7, -35, -91, -12, 61, -68, 10, 38, 0, 50, 29, 59, -33, -33, -24, -37, -77, 8, -17, -23, -58, 21, -25, 10, -28, 14, -33, 38, -17, 3, 24, 24, 37, 51, 17, -19, 11, 0, 32, -43, 12, -18, 26, -44, -7, 10, 29, 10, -43, 14, -38, 39, 76, -7, 57, 13, -16, -29, -15, 5, 25, 49, 0, -24, -2, 38, -49, -25, -13, 31, 26, -14, 4, -12, -23, 67, 65, -21, 5, 33, 27, -50, -31, 25, -33, -7, -40, 38, -42, 23, 8, 4 ]
Per Curiam. Following a jury trial in the Washtenaw County Circuit Court, defendant was convicted of assault with intent to commit murder and armed robbery contrary to MCL 750.83; MSA 28.278 and MCL 750.529; MSA 28.797, respectively. Defendant was sentenced to life imprisonment on both counts. He now appeals by leave granted. That defendant committed the offenses for which he was convicted was not seriously at issue during trial. Instead, the real issue for the jury’s determination was whether defendant was legally responsible at the time of the incident. Katherine Model, the 62-year-old victim, was awakened on July 22, 1974, at approximately 12:45 a.m. by the sound of breaking glass. She saw a man, whom she later positively identified as defendant, standing in front of her and asked him what he wanted. Defendant replied that he had come for her money and told her that he was carrying a knife. Defendant then stabbed her two or three times in her left shoulder. The victim subsequently told him that the money was in a vanity drawer. At this point, defendant turned on a light and thus enabled the complainant to identify him. After she told defendant that she knew him, he turned off the light and stabbed her repeatedly. Defendant placed his forefingers in the victim’s vagina and told her she would be dead before he left the house. He then placed a pillow over her head, and she passed out. The sole issue raised on appeal is whether the prosecutor deprived defendant of a fair trial by a series of questions implying that defendant was "hiding doctors” who would have testified that he was sane. Defense counsel objected to these questions which concerned Drs. Westerberg and Carrón, and the following colloquy ensued outside the presence of the jury: "The Court: You may proceed. "Mr. Thompson: Your Honor, briefly stated, the basis of my objection is as follows. Dr. Carrón, it is correct, that it is a matter of public record, that Dr. Carron’s name was listed on a piece of paper that I filed as a possible witness. But one thing Mr. Freedman apparently conveniently forgot is that on no certain terms had Dr. Carrón ever spoken to the defendant or did not see the defendant. I think the question is prejudicial, and I ask that the prosecutor be reprimanded for it. "Mr. Freedman: I asked the question, and all he had to do was say no. Secondly, all I asked him was if he was aware that Dr. Carrón was listed. This is a matter of public record and as the defendant in this case, I am asking him if he’s aware of the fact that Dr. Carrón was listed as one of the possible witnesses that may be called in response. "The Court: Why would this be material, counsel? He says he doesn’t remember if he knows Dr. Carrón. "Mr. Freedman: I would say why it’s important is simply this. As I have stated on the record, when this trial started before the jury was selected, I had been given three pieces of paper with names of doctors who might possibly be called for the insanity defense in this case. It is my belief, your Honor, and I would say this on the record outside the hearing of the jury, that the defendant is shopping around for a doctor. He’s shopping around for a doctor who is going to testify to what he wants to hear. I think they finally found one, and he should know because he is the defendant that there have been many other doctors that they have listed, that they have listed on the top that these doctors may testify, and I want the jury to know throughout this trial— "The Court: The court will sympathize with you, but why is it material? Counsel said that Dr. Carrón never examined the defendant. Why is it material? "Mr. Freedman: It’s material because I think the defense is hiding doctors. The reason Dr. Carrón did not examine this individual is Dr. Carrón said he would be glad to examine the individual if— ’’The Court: That’s not before the court. "Mr. Freedman: In the issue of insanity, we have been given information that they may testify and now we are being told they are not going to testify, and I think it’s very relevant the jury should know this. "The Court: What does it have to do with his insanity or lack of insanity? We are not testing the sanity of his attorney. We are testing the insanity of him. His counsel can list anybody he wants to. The law requires that he list anybody that he might possibly call. It doesn’t say who examined him or why is it material in this case as to what his attorney does? "Mr. Freedman: I would assume that what his attor ney does is an extension of the defendant, and I would assume the defendant knows. "The Court: Do you have any law on that? There is nothing before the court— "Mr. Freedman: Well, the defense attorney is the legal spokesman for the defendant, and he, the defendant, is not an attorney, so he hires an attorney to do what you feel is best for him, and I have to assume that the defendant knows that these people have been listed. 'The Court: Why do you assume that? I’m sorry. Maybe I have lost you, Mr. Freedman. Is there some law on this? "Mr. Freedman: Well, what you are saying is that anything that the defense attorney does that the defendant is not auspicious of— "The Court: No, the court isn’t saying that. The court is asking you. I am not saying anything. I am asking you a question, is there any law that says that? Listen, counsel! "Mr. Freedman: Your Honor, I will withdraw the question.” When the jury returned to the courtroom, the trial judge gave a curative instruction telling the jury to disregard anything said about a list of witnesses. A notice of alibi and a notice of insanity are in many ways similar. The purposes behind the re quirement mandating that a defendant disclose his intention to claim a defense of alibi or insanity are the protection of the public and to avoid unfair surprise to the prosecution at trial. See People v Shannon, 88 Mich App 138, 144; 276 NW2d 546 (1979). A defendant who fails to list on his notice a witness supporting his alibi or insanity defense, as the case may be, may be precluded from calling the unlisted witness. MCL 768.21; MSA 28.1044. In light of the similarities between the notice of alibi and insanity, it would not be illogical to resolve questions concerning the propriety of inquiring about missing insanity witnesses by reference to how the courts have handled the similar problem of missing alibi witnesses. Shannon, supra, 145, notes several cases holding that a prosecutor may permissibly comment on a defendant’s failure to produce a corroborating witness where an alibi has been presented. Furthermore, a prosecutor may ask questions about the filing of the notice of alibi after the defendant actually has put forth an alibi defense. People v Hunter, 95 Mich App 734, 738-739; 291 NW2d 186 (1980). Despite the similarities between notices of alibi and insanity, there are also significant differences between the natures of these defenses which lead us to conclude that a prosecutor may not permissibly comment upon or question a defendant about his failure to call a witness listed on the notice of insanity. Unlike the situation with an alibi witness, it will often be difficult for a defendant to know whether a particular psychiatrist listed on the notice of insanity will testify on his behalf. An alibi is a defense turning on the presentation of specific verifiable facts. A defendant usually will have no difficulty in ascertaining who can and who cannot corroborate his alibi. The insanity defense on the other hand requires presentation of witnesses testifying on the matter of a defendant’s subjective state of mind. A defendant’s state of mind is not specifically verifiable by reference to external facts, or, at least, the externalities are open to individual interpretations in a way that the facts of an alibi are not. We do not believe that a prosecutor should be allowed to cast aspersions on a defendant’s insanity defense simply by pointing out that a particular psychiatrist who was listed as a potential witness was not called. To do so would encourage defense attorneys to seek out psychiatric witnesses who have come to be associated with the defense in such proceedings and not risk having their clients examined by persons who have either not testified in previous cases or who have testified on different occasions for the prosecution and defense. In our opinion, this would detrimentally affect the truth-finding function of a trial by virtually eliminating from the process those expert witnesses most likely to be impartial. All too often trials in which insanity is an issue are swearing contests between opposing psychiatric witnesses who are permanently aligned with either the prosecution or the defense. This problem would only be exacerbated by allowing com ment on the failure to produce a particular psychiatrist at trial. Another difference between the two defenses is that while it is almost always advantageous to call every witness who can testify that defendant was not at the scene of the crime when it was committed, the same is not true of psychiatric witnesses. Where several experts might be prevailed upon to testify for a defendant, differences in the individual mental health professional’s expertise, experience, approach, and views toward mental illness may make it inadvisable to call all. There may be differences in viewpoint between the psychiatrists which defense counsel may not wish to come before the jury, fearing that these differences might lead the jury to reject the insanity defense because defendant’s experts cannot agree on the exact nature of the illness, even though agreement exists on the issue of defendant’s legal insanity. Some experts are more open to attack on the basis of credibility than others. The defense may wish to avoid presenting a witness likely to be discredited in fear that it will jeopardize the whole defense. While there will be concerns about particular alibi witnesses’ credibility, the more subjective nature of the insanity defense intensifies this problem. To summarize, we do not believe that the defendant’s failure to call a particular psychiatrist listed on his notice of insanity is relevant to the issue of whether he is really insane. The failure to call a listed witness does not make it less probable that defendant was insane when the crime was committed. See MRE 401. Moreover, assuming, arguendo, that the failure to call such a witness can be deemed relevant, we believe that, given the nature of the insanity defense, MRE 403 would require exclusion of this evidence as unduly prejudicial. We particularly note the impropriety in this case of the questions put to defendant concerning Dr. Carrón. The prosecutor knew that Carrón had not examined defendant. As such, the failure to call him in no way can be deemed relevant to the issue of sanity. Despite the foregoing, we are convinced that the error was harmless for a number of reasons. First, Dr. Martha Westerberg actually ultimately did testify for the prosecution. Second, the questions concerning Dr. Carron’s absence were withdrawn, and the jury was specifically told to disregard them. Third, the number of objectionable questions were few. Finally, the prosecutor did not comment in his closing or rebuttal arguments on defendant’s failure to call the witnesses in question. Affirmed. At the time of trial, notice of alibi and insanity were covered by the same statute which provided in pertinent part: "Whenever a defendant in a criminal case not cognizable by a justice of the peace shall propose to offer in his defense testimony to establish an alibi on behalf of the defendant, or of the insanity of such defendant either at the time of the alleged offense or at the time of trial, such defendant shall at the time of arraignment or within 10 days thereafter but not less than four days before the trial of such cause file and serve upon the prosecuting attorney in such cause a notice in writing of his intention to claim such defense and the names of witnesses to be called in behalf of such defendant to establish such defense known to him at that time. Names of other witnesses may be filed and served before or during the trial by leave of the court and upon such conditions as the court shall determine.” MCL 768.20; MSA 28.1043, subsequently amended 1974 PA 63, 1975 PA 180. By 1975 PA 180, effective August 6, 1975, some eight months after the completion of trial in this cause, notices of alibi and insanity became covered by separate statutes. MCL 768.20; MSA 28.1043 now covers only the alibi notice. It is not clear whether a defendant claiming an insanity defense any longer must name his witnesses in advance. While MCL 768.20a(3); MSA 28.1043(1)(3) requires defendant to notify the prosecution at least five days in advance of his intention to secure psychiatric examination independent of the Center for Forensic Psychiatry, nothing in MCL 768.20a; MSA 28.1043(1) actually requires that any witnesses named be disclosed. MCL 768.21; MSA 28.1044, however, does state that a witness to be called to establish the insanity defense must be disclosed. The significance of this is uncertain given that MCL 768.20; MSA 28.1043, itself, clearly requires divulgence of the names of the alibi witnesses. We do not need to resolve this problem in this case. Since Westerberg was to be called as a witness anyway, the sole purpose in asking the questions about her was to prejudice defendant’s insanity defense. It is obviously immaterial whether the defense or prosecution first sought a particular psychiatrist’s testimony. Instead, what are material are the specific findings of the mental health expert concerning the defendant’s state of mind.
[ 3, 12, -35, 13, -79, -45, -22, 5, -46, 22, 38, -20, 32, -21, 4, 9, -5, 12, 18, -30, 2, -13, -11, 17, -25, -92, 24, 0, -42, 14, 44, 29, 25, -20, -8, 34, 45, -38, 14, 34, -5, -14, 21, -5, -4, 18, 33, -15, -20, -5, 46, -11, -27, 17, -2, -22, 33, 30, -7, -33, 3, -21, -52, -26, 26, -29, 38, 1, -22, 21, -14, -19, -39, 3, 23, -2, -9, 16, 44, 8, -16, -53, 31, 22, 8, -53, 15, -2, -7, -30, 42, -11, -8, -37, 31, 37, 0, -47, 75, -39, -21, -11, -37, -6, 2, 16, -21, -51, -7, -13, 28, 13, 9, 18, -46, -17, 21, 8, -35, 13, -15, 2, 37, -39, 35, 38, -12, -1, 24, -53, 1, 35, 17, -2, -27, -19, -20, -3, 39, 13, -29, 30, 41, 35, 24, -10, -21, 10, 19, 23, -13, 7, -33, 11, 15, -17, -20, -35, -28, 5, 7, -10, -16, 6, 14, -8, -15, 37, 5, -13, 16, -5, 30, 41, 54, -9, -25, 7, 21, -17, 4, 6, 0, 33, 0, -1, 0, -30, 12, 20, -22, 28, -10, -20, 60, 48, 7, 40, 34, -4, 56, -10, -34, 2, 52, -11, -29, -38, 23, 14, -11, 25, -21, -43, 21, -59, -40, -60, -37, -12, -49, -46, 28, 8, -2, -52, 30, -34, -10, -29, 58, 45, -22, 3, -42, -24, 65, -45, 49, 4, -43, 0, 62, 2, 0, 59, -47, -15, -53, -1, 9, 17, 5, 20, -37, 46, 19, 14, -31, -27, -21, 29, -54, 41, -12, 51, 8, 45, -36, -67, 19, -17, 8, 13, -14, -43, 21, 76, -9, -21, 29, 10, -12, 23, -15, -1, -55, 41, -1, -14, 22, -38, -32, -37, 36, 17, 26, -20, -23, 29, 10, 16, 15, -24, 5, 18, 20, 21, -22, -16, 25, 35, 9, 35, 28, 3, -12, 1, 13, 11, -40, -14, -7, -42, -18, -27, 3, -57, -21, -11, -27, 57, -4, 2, 38, 0, -38, 2, 16, -16, 32, -53, -23, -9, -29, 38, -22, 17, -51, -48, -5, -20, 6, -13, 4, -14, -30, 16, 1, -45, 23, 20, -7, 7, -1, -36, 20, -58, -8, 88, -10, -80, -42, -18, -86, 3, 33, -57, -2, 37, -22, -9, 31, -4, -47, 23, -20, -44, 18, 36, -30, 4, 16, -27, -13, -48, -51, 6, 20, -34, -31, 41, 39, 20, -8, 19, -73, 12, 19, 25, -6, 34, 83, 44, -15, -22, 35, 0, 7, -57, 11, -16, 45, 2, -29, 15, -28, 0, -12, -44, 13, -19, -14, -7, 38, 28, -46, 11, 39, 1, -34, -49, -31, 37, 22, 38, 21, -14, 55, -31, -26, 14, -9, -9, 0, 42, 2, -9, -22, -36, -4, -44, -31, -14, 40, -8, -41, -28, 23, -18, 35, -13, 21, -18, 8, 29, -9, 66, -24, -18, -17, -5, -3, 2, -12, -6, -26, -55, -21, -35, 5, -7, -47, 52, -17, 25, -8, -11, -7, -5, -27, -17, -20, 16, 35, -36, 50, 0, 30, -2, -41, 6, -12, -2, -13, -69, 32, -6, 5, 53, 18, -35, 18, 34, -17, 30, -41, -43, -77, -16, 48, -5, -40, 14, 36, 13, -48, -91, -27, -35, 15, 38, 16, 13, 10, -49, 6, -16, 17, 24, -1, 8, 1, -34, 53, -56, 13, -42, -8, -16, -24, 12, 52, 37, 16, -14, -4, -17, 48, -47, 32, 4, -34, 46, -10, 16, -3, 26, -32, 26, 9, 14, -27, 37, -48, -42, 48, -21, 15, -1, -6, 32, 49, -25, -2, -17, -23, -48, 19, -7, 23, -22, -13, -15, 56, 31, 4, -5, 27, -23, 33, 14, 11, -54, -21, -1, -21, -24, -83, 15, 23, -43, 4, 52, 5, -38, -26, -40, -30, -48, -26, -30, 50, 29, -6, 1, 5, -19, -41, -5, -2, 33, -9, -3, 2, 49, 21, -2, -17, -27, -4, -26, -2, -36, 5, -27, -1, -10, 10, 8, 10, 48, -24, -15, 29, 73, 3, -16, 3, -18, 31, 29, 42, 12, 1, -2, 1, -24, 23, -48, -20, -29, 47, -24, 7, 14, -25, -24, 12, 26, -26, 10, 35, -6, 38, -15, 90, 8, -29, 0, 1, 26, -29, 8, 30, 29, 8, -32, -11, -13, -31, 51, -77, -17, 20, -16, -10, -45, 12, 64, -33, -37, 19, -1, 47, 27, 6, 30, 4, 44, 49, -20, -10, 30, 9, 5, -19, -13, 0, -27, 1, 24, -13, -28, -20, -40, -21, -59, 41, 20, 20, 42, 33, -1, -51, 23, 34, 13, -49, -30, 22, 16, -18, -45, -55, 0, 34, 22, 3, 8, -37, -8, 24, -5, -48, 54, 5, -42, 25, 21, 11, 5, -25, -24, 23, -12, -11, -6, -17, 5, 16, -2, -18, 55, -23, -1, 1, -10, 43, 29, 2, 78, 24, 2, 5, -4, 17, -9, -6, 23, 56, 41, 5, 2, -50, -8, -11, -11, -20, -22, 1, -22, 0, 28, -5, 10, 16, -43, -2, 8, -2, 12, -15, 60, -17, 33, 18, 10, -30, 20, 42, -4, -22, 40, 42, -16, 34, -37, 5, -23, 33, -6, 0, -13, -18, -18, -16, 50, 33, 33, -12, 33, -51, -19, 30, 21, -22, -4, 34, -31, -34, 22, 43, 13, -45, 75, -39, -15, -24, 23, -7, -24, -10, -12, -2, -21, 7, -16, -83, -17, 35, 53, 23, -22, -34, -6, -13, 45, 27, -33, 6, 3, 23, 25, 41, -14, 26, 9, -20, 4, 11, -1, 45, 22, 16, 19, -22, 2, -22, -40, -52, 26, 53, 29, 17, -28, -8, -36, -35, 25, 6, 2, 2, 1, 17, 10, 51, -70, 0, 13, 26, -8, -20, 23, -2, 43, -22, 19, 24, 39, -25, -8, 12, 2, -22, 23, 43, -15, -35, 52, -21, -9, 9, -18, 20, 11, -2, 3, 55, 3, 45, -27, -4, -51, -12, -10, 17, 14, -16, -35, -54, -6, 21, -1, 57, -5, 1, 20, -9, -26, -15, -35, -25, 30, -1, 27, 11, -32, 0, -51, 21, 32, -1, 21, 5, -27, 0, 0, 2, -38, 8, -2, 67, -46, -36, -12, 13, 28, 10, 25, -68, 65, -7, 21 ]
Per Curiam. The will of the deceased, Mary Jane McCoy, left the residue of her estate, consisting primarily of a majority of the shares of the capital stock of Detroit First Aid Company, to three, named trustees, Jacqueline L. Fox, her daughter, Abraham Satovsky, the appellant, and another person. The will provided for the payment of the income of the trust to Jacqueline L. Fox during her lifetime and then to her two children, Stephen Fox and Susan Fox. The will also provided for the ultimate distribution of the trust corpus and contained a provision that a decision of the majority of the trustees would be binding on all of the trustees. A will contest was settled by the appointment of James H. Sexton as the third trustee in place of the third person named in the will. The settlement agreement also provided that Jacqueline L. Fox, the appellant, and Sexton would constitute the board of directors of the company. When Sexton died in 1971, the appellant would not agree to the appointment of Frank H. Finney as a replacement trustee and third board member until an agreement was signed providing that the decisions of the trustees of the testamentary trust and of the board of directors of Detroit First Aid would have to be by unanimous, rather than majority, vote. When Finney died in 1975, the appellant would not agree to the appointment of Louis L. Silverfarb in his place as a trustee and director until an agreement was signed providing for the same unanimous vote restrictions on the trust and the company. Some five years later, Fox and Silverfarb decided not to comply with the unanimous vote agreements. Acting in their capacities as trustees of the testamentary trust, they decided to vote the shares of stock under their control in favor of Jacqueline L. Fox’s husband, Henry Fox, Jr., to replace appellant on the board of directors of the company. Appellant then filed a petition to have the Wayne County Probate Court instruct the trustees to comply with the unanimous vote agreement. After a hearing on the petition, the probate court issued an order holding that Jacqueline L. Fox, appellant, and Silverfarb were validly appointed trustees of the testamentary trust, that these three trustees were bound by the majority vote of the trustees in the election of the board of directors for the company, and that the unanimous vote agreements signed in 1971 and 1975 had no binding or legal effect on the trust. Appellant then filed with this Court a claim of appeal from this probate court order pursuant to MCL 600.861; MSA 27A.861 which provides, inter alia, that a party to a proceeding in the probate court may appeal as a matter of right to the Court of Appeals from a “final order affecting the rights or interests of any interested person in an estate or trust”. Since the order in question involves a testamentary trust and the appellant as a trustee is an “interested person” as defined by § 7 of the Revised Probate Code, MCL 700.7; MSA 27.5007, the issue is whether or not the order here involved was a "final” order and therefore appealable to this Court rather than the circuit court. Appellant has filed a separate brief on the question of this Court’s jurisdiction. Since there is no statutory or rule definition of the term "final” as used in MCL 600.861; MSA 27A.861, the determination of which probate court orders are "final” and which are not, for purposes of determining the appellate jurisdiction of this Court, must be made on a case-by-case basis. In re Swanson Estate, 98 Mich App 347; 296 NW2d 256 (1980). The test of finality of a probate court order is whether it affects with finality the rights of the parties in the subject matter. Equitable Trust Co v Banker’s Trust Co, 268 Mich 394, 397-398; 256 NW 460 (1934), In re Swanson Estate, supra. This case is not a dispute between the trustees and the beneficiaries regarding the fiscal management of the trust or distribution or retention of the income or principal of the trust. Rather, it is a dispute among the trustees regarding decision-making authority. Unlike In re Butterfield Estate, 100 Mich App 657; 300 NW2d 359 (1980), this appeal does not involve the pecuniary interests of the beneficiaries of the trust or any possible personal financial liability on the part of the appealing trustee. We therefore hold that the probate court order in question is not a "final order”, appealable as a matter of right to this Court under MCL 600.861; MSA 27A.861. This appeal therefore is dismissed without prejudice to the appellant to pursue his appropriate appellate remedies in the circuit court. The appeal is dismissed._ This result is consistent with the proposed amendment to Probate Court Rule 801. 411 Mich 1125. If adopted, proposed PCR 801.2(c)(3) would provide that a probate court order interpreting or construing a testamentary instrument would be a final order. However, the probate court order in the instant case does not involve the interpretation of the testamentary instrument, which is unambiguous on its face, but rather concerns the legal effect of documents extraneous to the testamentary instrument.
[ 19, 32, 22, -4, -32, 10, 12, -9, 25, 1, -39, -4, 51, 49, -40, 11, 18, 30, 32, 6, 12, 2, -100, 11, -19, 18, 14, -37, 34, -4, -14, -13, 35, -14, -19, -3, 17, -4, 29, -15, 15, 12, -23, 27, -37, 7, 67, -16, 12, -65, -18, 34, 29, -1, -5, 39, 12, -51, -43, 10, 18, -32, 45, 34, 6, 39, 25, 49, 8, 11, 34, 6, -14, 18, 2, 0, 27, 10, -34, -16, 28, -27, -2, 3, -35, -18, -45, 21, -19, 11, -39, -9, -47, -29, -12, 43, 0, -7, 19, -1, -11, 4, -5, 31, 29, -20, 43, 12, 9, -16, 28, -39, 34, 36, -5, 3, 9, 11, -29, 34, -5, 8, -18, -21, 29, 40, 35, 1, 52, 17, 33, 46, 20, 14, -13, -14, -52, -24, 45, 3, 30, 23, -18, -9, -31, 10, -30, -39, 42, -33, -44, 73, -6, -7, 63, -20, -11, 7, 24, 55, -22, 13, 44, 32, -82, 0, -11, 36, -14, 62, 7, -7, 21, -26, -36, -7, -32, -17, -56, -31, -5, 8, -14, 41, -10, -37, 43, -34, 12, -25, 7, -56, -21, 4, 1, -30, 19, 15, 10, 66, 26, -33, 5, -4, -12, -29, 21, -2, -47, 29, -36, 15, 16, -1, -41, -35, -48, -29, -19, -47, 32, 30, 34, -14, -28, -35, 23, -24, -26, -31, 1, -3, 13, 54, -40, 30, -15, -4, 21, -16, -27, -22, 38, 25, -9, -15, -15, -19, 0, 51, -5, 17, 16, 27, 34, 8, -70, 28, 1, -28, 18, 9, -98, 46, 52, 17, -6, -10, 3, -14, -22, -12, 17, -42, 1, -36, -25, 23, 2, -25, -45, 5, -42, 25, 24, 67, -1, -3, -48, 38, 26, 34, 5, 3, 37, 25, 13, -30, -19, 26, -23, 31, -1, 27, 5, 8, -40, -25, 30, 4, -9, 17, 20, 14, 22, -11, -9, 17, 28, -1, 32, -3, 4, -10, -27, -21, -12, -15, 11, 36, 7, 18, 32, -6, 9, 2, 29, 21, -15, -16, 14, 15, 89, 10, 18, -22, 13, -4, -41, 15, 25, 35, 10, 6, -53, -15, 39, 33, -6, 29, 6, -11, -15, 17, -14, 2, 16, 10, 7, 40, 36, 63, -38, 9, 44, 6, 22, -14, 31, 21, -50, 10, 78, 44, 46, -30, -8, -21, -24, 3, -40, -38, -23, 60, -8, -47, 2, -21, -42, 0, -15, 22, -43, -35, -42, -22, -31, 13, -16, 26, -14, 29, 50, -54, -6, -31, 34, -32, 54, 0, 4, -2, 1, -11, -33, -31, 14, 6, -37, -40, -48, 51, 53, -35, 53, -23, -12, -24, -5, 39, 15, -5, -16, 0, -28, 16, -6, -36, 59, 30, 30, 23, 20, -2, -22, 6, 14, 10, 3, 8, -13, -73, 19, -27, -1, 48, 41, 21, 16, -28, -22, 10, 5, 1, -32, 6, 0, -12, 2, -2, 38, 26, -8, -22, 16, 2, 16, -30, -36, -36, 52, -48, 4, 3, 14, 33, 6, -10, 11, 1, 30, -14, 1, 26, -55, 8, -12, -91, -51, -15, 11, -46, 5, 82, 6, -40, -2, 20, 27, 31, -24, 3, -22, 32, -9, 29, 30, -2, 9, -15, -2, 61, 0, 13, -19, -8, -31, -40, -33, -62, 11, -18, -38, 14, 18, -24, 9, 25, -20, 1, -31, -55, -53, -17, 22, 9, 46, -31, 32, 5, -40, 0, 53, 11, 34, -42, 12, -36, 28, 29, -8, -21, 7, 10, 67, 15, 37, 63, -88, 21, -20, 8, 30, -30, 19, -13, 31, 35, -32, 21, -19, -15, -31, -2, 24, -8, 90, -28, -4, -3, -4, 9, 2, -40, -42, -28, 24, -53, 36, -41, -40, -67, -27, -26, -36, 25, -4, -5, 49, 26, -52, 24, 44, -21, 41, 0, 46, 14, 27, 27, 33, -65, -26, 44, -23, -2, -45, -21, -8, -72, -45, -19, 15, -22, 26, -43, -27, -29, -4, 16, -31, -25, 7, 0, -5, -6, 35, -38, -16, -28, -3, 2, 0, -9, -11, 21, 21, -29, 25, 7, 9, 60, 62, -10, 18, 15, -17, 17, 28, 35, -52, 9, -45, 20, -5, -81, 25, 5, -32, 0, 2, 9, -44, 22, -31, -33, -7, 52, -18, 8, 9, 23, -17, 52, -26, 0, -12, 76, 6, -26, -13, -13, -42, -33, -20, 7, -23, -38, 61, -41, -23, -15, 14, 20, -26, 22, -7, -20, 29, -16, 12, -3, -3, 27, 8, 23, -23, 2, -10, -30, 11, 18, -45, -28, -42, -1, -26, 35, 13, 54, -12, 33, -4, 49, 9, -47, -3, 11, -16, -22, -24, 28, -29, 1, 59, 31, 10, 34, 27, -17, 20, 14, -31, 6, -37, -39, -31, -27, -19, -6, 12, -9, 53, -47, -25, -51, 44, -16, -7, -13, -31, -29, 3, -10, -2, 33, 8, 49, 5, -36, 1, 47, 6, -12, 2, 2, 1, 0, -39, 1, -8, -45, 11, -16, 12, -17, -13, -16, -95, 27, 10, -24, -27, -8, -27, 13, -22, 13, -4, 13, 3, -3, -44, -12, -27, -14, 21, 33, -12, -48, -22, -29, -34, -30, -16, 14, -31, -13, -55, 0, -19, -17, 9, 7, 6, -12, 19, -19, -24, 2, 8, 14, -61, -11, -4, 14, 0, -22, 25, -14, -70, -47, -42, 14, -58, -37, 13, 28, -9, 2, 0, 50, 3, 38, -30, 17, 55, 12, 7, 12, 0, -52, -5, 11, -13, 26, 29, -16, -10, 15, -54, 1, -35, -2, 15, -23, 67, 44, 24, -11, -6, 2, 19, 10, -48, 16, 21, -19, -34, -19, 38, -45, 7, -36, -24, -10, 14, -7, -33, 23, 13, -10, 2, 2, -21, -15, 56, -14, 38, 3, 36, -10, -19, -34, -4, -66, 46, -49, -2, -5, 17, -34, 59, 25, -58, 19, 1, 14, -39, 57, 2, 25, 16, 46, 36, -39, -5, -39, -3, 26, -7, 1, 0, -15, -47, 0, 2, 20, 20, -39, -17, -6, -6, 70, 16, -46, 57, -14, -38, -81, 52, 14, -27, 0, -29, 24, -28, 20, 5, 15, 42, -23, -40, 32, -13, -3, 26, 19, 23, 22, -37, -12, 9, 22, 11, 36, -8, 23, -28, 38, 5, -15, 44, 23 ]
R. B. Burns, J. The present suit concerns a medical malpractice action brought against defendants. The trial court directed a verdict of no cause of action in favor of defendant Wagoner, and the jury returned verdicts of no cause of action in favor of defendants Posthuma and Medical Arts Group. Plaintiffs appeal, and we affirm. Virginia Wood went to see Dr. Wagoner, a specialist in obstetrics and gynecology, complaining of abdominal pains. After examining her, Wagoner gave a differential diagnosis indicating that she was suffering from either a twisted ovarian cyst or diverticulitis. Diverticulitis is an inflammation of a sac. or pouch, called a diverticulum, coming off of the intestine or other organ. Realizing that an ovarian cyst is a serious problem, Wagoner scheduled Mrs. Wood for surgery the next day. The next morning Wagoner scheduled Wood for a barium enema to confirm or eliminate his secondary diagnosis of diverticulitis. The barium enema was performed by Dr. Robert Barnett, a radiologist, who opined that Wood had a diverticulitis abscess. At about noon, Wagoner went to the radiology department to examine the X-rays prepared in connections with the barium enema. Barnett was not present, so Wagoner read the X-rays himself. He determined that Mrs. Wood was not suffering from diverticulitis, and at 1 p.m. he started to perform surgery for the removal of an ovarian cyst. After making an incision into Wood’s abdomen, Wagoner discovered that she was actually suffering from diverticulitis in the sigmoid colon. Realizing that this condition was outside of his area of expertise, Wagoner called his colleague, Dr. Millard Posthuma, a general surgeon, who peformed the surgery to eliminate the diverticulitis. Wood continued to feel ill after her release from the hospital, and she subsequently underwent operations for a bowel irrigation and a hernia. Mrs. Wood and her husband instituted this suit against Wagoner, Posthuma, and the Medical Arts Group, which was the professional corporation to which Wagoner and Posthuma belonged. During the preparation for trial, the defendants asked for a list of all expert witnesses plaintiffs intended to call. The only named expert was Dr. William Joseph. At trial, the plaintiffs attempted to elicit from Dr. Joseph, a general surgeon, the standard of care required of a specialist in obstetrics and gynecology. Defendants objected on the ground that the witness was not qualified to testify as to that standard, and the court sustained the objection. After the court refused to allow Dr. Joseph to testify regarding the standard of care, the plaintiffs called Dr. Charles Haberlein, a specialist in obstetrics and gynecology, to testify concerning the standard of care. The defendants objected on the ground that Dr. Haberlein had not been named as an expert witness to be called by the plaintiffs. The court sustained the objection. As was previously stated, the trial court subsequently directed a verdict of no cause of action in favor of Wagoner, and the jury returned a verdict of no cause of action as to the other defendants. On appeal, the plaintiffs claim that the trial court erred by refusing to allow Dr. Haberlein to testify as an expert witness. The plaintiffs base this argument on the fact that Dr. Haberlein was named as a witness, even though he was not listed as an expert witness. It is within the trial court’s discretion to admit or exclude expert testimony, and such exercise of discretion will not be reversed on appeal absent a clear abuse. See Hughes v Allis-Chalmers Corp, 96 Mich App 175; 292 NW2d 514 (1980). In our opinion the trial court did not abuse its discretion. The defendant requested a list of all expert witnesses on numerous occasions, but Dr. Haberlein was never so listed. When his deposition was taken, neither plaintiffs nor defendants asked any questions concerning the standard of care to be used by an obstetrician and gynecologist. Plaintiffs waited until fifteen days before trial to disclose their expert witnesses and then listed only Dr. Joseph. The trial court committed no error by ruling as it did. Next, plaintiffs claim that the trial court erred by directing a verdict in favor of defendant Wagoner. Defendants respond that the directed verdict was proper since plaintiffs failed to introduce evidence as to the standard of care required of a specialist. A treating physician is liable for damages when it is shown that he departed from that standard of care which is known as customary medical prac tice. See Patelczyk v Olson, 95 Mich App 281; 289 NW2d 910 (1980), and McPhee v Bay City Samaritan Hospital, 10 Mich App 567; 159 NW2d 880 (1968). The burden of proving the standard of care is upon the plaintiff and it must be proved, in most cases, with the aid of expert testimony. Patelczyk, supra. In the present case there was absolutely no evidence establishing the standard of care required of Dr. Wagoner and no evidence establishing a failure to use such care. The plaintiffs also claim that the trial court erred by departing from the text of the Standard Jury Instructions. GCR 1963, 516.6(2) requires that a trial court give pertinent portions of the Michigan Standard Jury Instructions when they are applicable and accurately state the applicable law. GCR 1963, 516.2 requires that a party objecting to the instructions specifically state the matter to which he objects and the grounds of his objections. In the present case the plaintiffs objected to the instructions but failed to specify the grounds of objection. Lastly, plaintiffs allege that the trial court made prejudicial remarks in front of the jury and that the court committed reversible error when it declined to grant a mistrial. The record discloses that the trial judge admitted that a remark he made had been in poor taste, and he gave the jury a cautionary instruction. Any harm arising because of the remark was cured by the instruction. Affirmed.
[ 29, 23, -31, -21, 5, -36, 31, 31, 6, -14, 38, -65, 59, -19, -31, -22, 29, -42, -46, 7, -38, -21, -34, 86, 0, 44, 20, 0, -41, -21, 3, 54, -3, -29, -13, 35, 46, 23, -14, -18, -30, -9, -36, -35, 18, 64, 82, 23, 9, 13, 55, 33, -38, -9, -1, -27, 57, 29, 4, -34, 28, -17, -3, -1, 42, 16, 16, 3, 12, 15, -38, -25, 32, -39, -1, -49, 17, -2, 13, 31, 37, -23, 39, 2, 16, 28, -22, 28, 21, -38, 7, -47, -28, -19, 10, -5, -46, -12, 62, 23, -9, 49, -18, 0, -6, 19, 25, -5, -2, 18, -12, 34, -53, -68, 38, 0, 15, -16, -36, -37, -28, -1, 3, -21, -1, 79, 17, -31, 26, -9, -13, 27, -30, -56, 26, 23, -53, -41, 6, -15, -30, 76, -72, 9, 14, -1, 0, -48, 1, 14, 30, -7, -45, -7, -28, 33, -29, 1, 21, -3, 38, -13, 53, 42, 0, 49, 4, -28, 10, 41, 43, -13, -6, -32, -33, 50, 25, -46, -72, -1, -11, -17, -21, 25, -2, 22, 38, -18, -4, -10, -24, -29, -27, -25, 0, 7, 11, 11, 39, 5, 42, 32, -45, -69, 22, 19, -51, 17, 10, 26, 14, -10, -27, -29, 12, -3, -2, -61, -27, -3, -2, 0, 62, 4, -45, 60, 3, 19, 46, 4, -19, 41, -59, 9, -11, -14, 5, -43, 18, 72, -4, 12, -2, 17, -32, 15, -45, 17, -51, -19, 3, 4, 13, 52, -16, 1, 19, 49, -66, 11, -49, 35, -40, 77, 7, -19, -13, 1, 1, -19, -53, 3, 22, -88, -3, -39, -75, 47, 14, 22, -32, -15, -48, -32, -80, 1, -14, 14, -4, 10, -46, -38, -19, -27, 45, 15, 28, 15, -5, -20, 78, -7, 98, 77, 0, 13, -1, 61, 13, -26, -1, -33, -13, -22, 14, -34, 18, -4, -29, -34, 7, 64, -31, -23, 24, -23, -14, -52, 0, 0, -19, 73, -7, 14, 39, -24, -10, 54, -59, -6, -7, 23, -23, -14, -45, 2, -11, 2, -4, -25, 7, -14, 73, -15, -20, -34, -28, -3, 13, -5, -12, -10, 47, -19, -55, -15, 7, -1, -28, 83, -10, -52, 13, -68, 28, 17, -13, -6, 22, 42, 16, 1, 38, -61, -80, -5, -51, -19, 24, 2, -34, -38, 92, 76, -2, 16, -71, 38, -22, 42, -38, -9, 11, 32, 59, 9, -12, -79, 7, 14, 29, 1, 39, 34, 21, -13, 37, 13, -22, -26, 43, 2, -29, -40, -24, -14, -30, -10, -12, -17, -37, -42, 11, -22, 81, 3, -36, 41, 44, 13, -1, 29, -56, -19, -45, 92, 110, 65, 54, -15, 53, 9, 49, 19, -18, -40, 19, 33, -36, 30, -66, -37, 5, -37, 20, 30, -33, 27, 6, 6, 37, -49, 46, -38, 53, -5, -18, 44, -33, -71, 3, -7, -25, -16, -18, 37, -40, -28, -15, -17, -24, -59, -108, -23, 4, 18, 11, -6, -23, 2, -37, -16, -71, -18, 44, -54, 9, -32, 39, -4, -83, -15, 39, 16, 36, 1, 13, 6, -43, -13, -35, 4, -15, 2, 37, 0, -1, -46, 26, -43, 48, -46, 9, 35, -16, -64, 2, -63, 12, -72, -19, 0, 29, -28, -17, -53, 15, 4, -3, 42, -1, 0, 23, -10, -1, 25, 5, -46, 31, -38, -60, 51, 18, -9, 32, 35, 16, -51, 24, 38, 9, 64, 21, 28, -36, -20, -26, 42, -26, 14, -27, -31, 31, -40, -47, -22, 32, -47, 7, -48, -31, -2, 36, 0, 69, -5, -25, -35, -5, 4, 32, -22, -3, 5, -71, 37, 36, 34, 31, -36, 12, 22, -8, -23, -6, -30, -16, 66, 0, 19, -30, 10, -17, -15, 69, -9, -18, 48, -33, -103, 23, 11, 3, 24, -34, 45, -9, 28, -6, 32, 10, 5, -23, 19, 13, 10, 64, -95, -43, -38, -15, 31, -42, 16, -35, -15, 1, -28, -47, 0, -36, 16, 44, -43, -26, 22, 5, 36, -69, -22, 13, 23, 40, 20, 39, -33, 36, 54, 0, -7, -19, -19, 71, -50, -28, 3, -25, 34, 58, -41, -26, -8, 33, 24, 50, 15, 33, -30, 82, 6, -27, 6, -80, 47, 80, -57, -4, -40, 38, -35, 15, -23, -4, -34, 34, 3, -6, 28, 28, -26, 5, -17, 0, -34, 14, -31, 64, 30, 37, -36, -5, 24, 31, 85, -11, 46, 32, -10, -3, -11, 13, 13, 25, 24, -21, -12, -15, -13, 44, -5, -15, 18, -11, -20, 41, -88, 46, -36, 15, -25, 22, -67, 35, -13, -42, 75, -3, 55, -42, 15, -50, 39, 31, 9, -15, 12, -44, -13, 14, -10, 13, -56, 34, 20, -59, -90, 48, -33, 9, 16, 40, -47, 10, -89, 3, -26, -47, -42, -58, 17, 58, 51, 5, 37, -23, 32, 37, 1, 24, 8, -22, -41, 59, -16, -13, -48, -61, 10, -30, 10, -2, -11, -10, -17, 53, -34, -72, -20, 36, -39, 0, -49, -16, 12, 25, 48, 21, -13, -43, 47, 19, 73, 10, 12, 43, -66, -9, 48, 4, -33, 9, -40, 9, 13, 10, -40, 1, 8, 25, -14, -19, 4, -48, -1, -48, 25, 10, 7, 59, -51, 5, -18, -14, -38, 18, 38, -17, -14, 3, -29, 15, -35, -45, 21, -48, 4, -51, 22, -32, 15, -4, 3, 34, 2, -30, 19, -5, 38, -6, 5, -113, -5, 55, -12, -11, -43, 31, -20, -63, 5, -8, 21, -2, 52, -1, 43, 44, 54, -22, -35, 29, -10, 37, 22, -9, -4, 0, -1, -34, 49, 54, 44, -4, -5, -16, 5, 36, 13, -22, 17, 34, 22, 37, 61, -24, -42, 0, -11, 32, 13, 6, -27, 15, 20, -47, 27, 40, 28, -9, -8, 32, -36, -41, 58, -2, -10, -34, 83, -26, -2, -20, 31, -10, -44, 0, -16, -26, 5, 32, -8, 0, -40, -73, 4, -67, -1, -52, 6, 12, 19, 11, 6, -32, 42, 9, -29, 31, -106, -3, 7, -22, 41, 86, 111, -20, -33, 21, -64, 38, 18, 15, -12, 91, -27, 8, 50, -24, -20, 35, -41, -49, 6, 49, -12 ]
Stone, J. This is an action of trespass on the case brought by the plaintiff, a wholesale dry goods corporation, with its principal place of business in the city of Detroit, to recover the value of seven sample trunks, together with the contents thereof and inter est thereon, from the defendant, which operated the Michigan Air Line Railway under a lease. The trunks and contents thereof belonging to the plaintiff were destroyed, on the evening of July 5, 1910, while deposited in defendant’s depot at Stockbridge, Mich., by being consumed by fire. Stockbridge is a village of 600 or 700 inhabitants, and is located on the Michigan Air Line Railway. One Charles Nuthall was employed on the day in question as a traveling salesman for plaintiff, and carried a general line of dry goods merchandise. He had been carrying such line from the October previous, and for a period of five or six years prior to that time traveled for plaintiff with a special line of dry goods. Since the previous October his territory had been a portion of the State of Michigan, and he made towns along the line of the Michigan Air Line Railway. Among them were the villages of Pinckney and Stockbridge. He had spent the day of July 5th at the village of Pinckney, and had used his sample trunks, at a hotel in that village, in connection with his trade. He desired to take defendant’s passenger train No. 29 west for Stockbridge that evening. This train was scheduled out of Pinckney at approximately 8:44 p. m. About 7 o’clock that evening Mr. Nuthall telephoned defendant’s station, agent at Pinckney, and informed him that he would send his sample trunks down to the depot for No. 29, and he desired to go to Stockbridge, and gave the agent the excess weight of his baggage, and requested him to have the checks covering the baggage ready when he arrived at the depot in order to save delay. His request was complied with. He could not state how much was paid by him for excess baggage, but the agent, upon the trial, produced his railroad records, which showed that on the evening in question he had checked four pieces of baggage from Pinckney to Stockbridge on train No. 29, covered by the following checks: No. 623,984, No. 623,985, No. 623,986 and B/4,434. The latter check is what is known as an excess baggage check. The records showed the excess weight upon the four pieces of baggage to be 650 pounds, and that the rate charged was 10 cents per hundredweight, and the amount collected was 65 cents. Defendant had on file at its passenger depot at Pinckney, Local and Joint Tariff No. T-2, covering rates on excess baggage from western division in Michigan to stations in Michigan on the Grand Trunk Railway System and connecting lines, issued at Chicago, 111., May 5, 1910, effective May 16, 1910, which tariff was in effect on July 5, 1910, as appeared from the certificate of the secretary of the Michigan Railroad Commission. It was marked “Exhibit 3.” “Table op Excess Baggage Rates. “The minimum charge for any shipment of excess baggage must be 25 cents. When Passenger Fare is Excess Rate Prom To per 100 lbs. $0.01 $0.20...................... $0.08 .21 .40.......................10 .41 .60.......................12 “Sample Trunks and Cases. “Trunks or cases containing samples of merchandise may be checked when accompanied by the owner or agent, and 150 pounds carried without extra charge, but this company will not be responsible in any amount exceeding $100.00 for the loss or damage to such property, unless a greater sum is agreed upon at the time of checking. All in excess of 150 lbs. will be charged for at the same rate as excess baggage, regardless of the number of tickets presented, except when it is clearly shown that the commercial traveler is regularly accompanied by an assistant or helper traveling with him and employed by the same firm, 150 pounds additional will be carried free. “Excess baggage checks will be issued for amounts collected in all cases for increased value stipulated. “Stipulated Valuation. “If any passenger stipulates for a greater sum than $100.00 for an adult, or $50.00 for a child, to be paid in case baggage is damaged, destroyed or lost, the charge for the increased valuation will be one-half of the current excess baggage rate per 100 lbs. of excess baggage (for the distance carried) for each $100.00 or fraction of $100.00 for the increased value stipulated, adding enough when necessary to make the rate end in zero or five. No charge less than 25 cents to be made. “Limited Liability. “This company will not be responsible in any sum greater than $100.00 for loss of or damage to baggage belonging to an adult passenger, or $50.00 for baggage for a child, unless a greater sum is stipulated and excess charges paid for increased valuation at time of checking.” Mr. Nuthall knew the rate upon excess baggage was governed by the price of the ticket, and that where the fare was from 1 cent to 20 cents the rate was 8 cents per 100 pounds, and where the fare was from 21 cents to 40 cents the rate upon excess baggage was 10 cents per 100 pounds, and so on. He knew that defendant had a tariff covering those charges for carrying excess baggage. The fare from Pinckney to Stockbridge was substantially 40 cents. Mr. Nuthall made no claim, when checking his baggage and paying the excess rate, that it was worth to exceed $100, and his testimony is undisputed that he did not know of a regulation or rule providing for different rates on excess baggage. Upon that subject he testified as follows: “Q. Did you know at this time that there was any rule or regulation relative to the limitation of the liability of the railroad company to $100? “A. No, sir. “Q. Was your attention challenged to any such liability, or called to it on that day, or was it mentioned to you? “A. No, sir.” Mr. Nuthall took defendant’s passenger train No. 29 from Pinckney to Stockbridge, his trunks going upon the same train. The trunks were put off in the usual manner at the depot. Mr. Nuthall observed them upon the depot platform before he left to go uptown. He said nothing to the agent or his helper at Stockbridge that evening. Leaving the train he went immediately to the waiting bus and was taken to his hotel. The checks for the trunks were given by Mr. Nuthall to the busman, who ran a dray line in connection with his bus line, and Mr. Nuthall instructed him to deliver the trunks to the hotel the following morning. Upon that subject he testified, upon cross-examination, as follows: “Q. You did not intend to take your trunks away from that depot that night? “A. I did not intend, did you say? “Q. No; you were going to leave your trunks until the next morning; that was your intention? “A. My intentions were governed to a certain extent by whether the drayman wanted to bring them that night or not. “Q. You did not ask the drayman to deliver your trunks to you that night? “A. The drayman asked me— “Q. No; answer my question. “A. I did not. “Q. What did the drayman ask you? “A. He asked me if it would be all right to bring them in the morning. It was late, and the depot would close directly after the train left. I told him it would, if he would bring them over early in the morning. He was to bring my baggage to the sample room at the hotel. * * * I did not make any request of the depot man at Stockbridge to leave his depot open to give a drayman an opportunity to take my trunks away that night. It was my purpose to take all my trunks up to town the next morning. I delivered my checks to the drayman; the busman, who was also the drayman. One man operates both wagons there, or did up to that time anyway.” The defendant’s helper and baggageman at Stock-bridge, among other things, testified as follows: “Q. State whether or not it was customary for traveling salesmen coming in on that train to leave their sample trunks in the depot overnight. * * * “A. It was customary. “Q. And that custom had prevailed for some time, had it, in Stockbridge? “A. Yes, sir.” Mr. hiuthall, on his direct examination, had also testified as follows: “Q. What had been your custom and practice from the previous October of 1909 down to July 5, 1910, about what you would do with your trunks when you came into Stockbridge on that train?” Objection having been made to this question, the court said: "Go ahead; you may answer the question; I understand you are inquiring the custom and practice that is understood and acquiesced in by the carrier at Stockbridge? “Plaintiff’s Attorney: Yes, your honor. “The Court: That is the custom of both of these people? “Plaintiffs Attorney: Yes, your honor. “The Court: Not his particular custom? “Defendant’s Attorney: His custom would not bind us. His particular custom could not possibly bind the carrier without its being acquiesced in and understood by the carrier and accepted. “Plaintiff’s Attorney: That is what I want, the custom that is understood by the carrier, by the railroad company itself, as you understand it, and that was acquiesced in and followed from the previous October down to this time in relation to your trunks. “A. Getting in on a late train we had always left them there overnight. * * * “Q. What would the baggage agent do with the trunks when you did that? * * * “A. Put them in the baggageroom, and keep them there overnight. “Q. Had that been the case since the previous October, down to this date? “A. Yes, sir.” The baggageman’s helper at Stockbridge was on duty alone when No. 29 arrived on the evening in question. He stayed at the depot until all the passengers who had come in on that train left, and then put the trunks, including those of plaintiff’s, into the waiting room of the depot, the baggageroom being too small to care for all of the trunks. He then locked the depot and went home for the night, there being no more passenger trains scheduled to arrive at that station that evening, and Stockbridge was not a 24-hour station. He testified that had he been requested he would have remained at the depot to permit Mr. Nuthall’s trunks to have been taken to the hotel that evening, but Mr. Nuthall made no request to wait until he could get the trunks. The night was a very warm one. Defendant’s depot was discovered on fire about half an hour after it had been closed. It was a wooden structure, and the building, together with plaintiff’s trunks, was entirely consumed. Plaintiff brought suit to recover the value of seven sample trunks and their contents. The records of the defendant showed but four pieces of baggage were checked. There was a disputed question of fact as to whether there were seven or four trunks. The jury, by their verdict, found that plaintiff had but four trunks and their contents consumed. The declaration contained five counts. Four of them charged negligence on the part of the defendant. The plea was the general issue. Upon the trial plaintiff offered testimony tending to show that the fire arose from spontaneous combustion, caused from ignition of oil and waste kept in the baggageroom. , The trial court submitted the following propositions to the jury by its charge: (1) Was defendant a carrier, or warehouseman of plaintiff’s trunks? (2) Was the fire started by spontaneous combustion? The jury rendered a verdict in favor of the plaintiff in the sum of $815.77, which included the value of the four trunks, contents thereof, and interest thereon. Judgment was entered thereon. The defendant has brought the case here upon writ of error, and by appropriate assignments of error its counsel claim that the court erred in the following particulars: (1) In the refusal to instruct the jury, as requested, that defendant was not a carrier of the trunks in question, but was a warehouseman and only liable for negligence; (2) refusal of the trial court to permit defendant’s Exhibit No. 3 to be introduced in evidence; (3) refusal of the trial court to instruct the j ury,_ as requested, to the effect that plaintiff could not, in any event, recover more than the sum of $100 as the value of the trunks and contents. 1. It is the claim of defendant that the question of whether defendant was a common carrier or warehouseman was, under the testimony, a question of law and not of fact; the facts being undisputed. It is urged that the rule of law in this State is now settled, to the effect that a railroad company continues as a common carrier of baggage after its arrival at destination until a reasonable time has elapsed for delivery, and after such reasonable time its liability is that of a warehouseman, and it is not an insurer, but liable only for negligence. Defendant’s counsel did not, in their brief, nor did they at the hearing, argue the question whether there was evidence of negligence on the part of the defendant, as the cause of the fire. It is the claim of the plaintiff that in determining whether a reasonable time had elapsed for the removal of plaintiff’s baggage, and whether the defendant’s liability had been changed thereby from that of a common carrier to that of a warehouseman, the usage, custom, or course of business may, and should, be considered; and if it should appear that a custom exists whereby the common carrier retains the baggage overnight, then such custom becomes one of the important circumstances to be considered in determining whether or not a reasonable time had elapsed for the delivery of the package. Counsel on both sides have referred to Wallace v. Railway Co., 176 Mich. 128 (142 N. W. 558). This court there held, in substance, that the strict rule of liability for baggage of passengers continues after arrival of the passenger at his destination, and until the lapse of a reasonable time thereafter; what is a reasonable time is a question of fact for the jury, if there is any dispute about the facts. In that case Justice McAlvay, speaking for the court, referred to 3 Am. & Eng. Enc. of Law (2d Ed.), p. 565, and cases there cited. It is there said: “The troublesome question in this connection is as to what constitutes such reasonable time, and must be determined from all the circumstances of the case, such as the character of the station, the facilities there for receiving baggage, and the opportunities afforded by the carrier for delivering baggage when called for.” This question is largely one for the jury upon all the facts of the case, but when the facts are not disputed it is for the court to decide. In determining the question the jury must take into consideration all the circumstances shown by the evidence bearing upon that question, and the general and usual custom or manner in which the company transacted its business in relation to such baggage at the depot in question in regard to the delivery of such baggage. In applying the rule that the liability of a carrier continues for such a reasonable time after the arrival of the train as is necessary to effect delivery, it is necessary to determine what constitutes a reasonable time, and upon this point there is considerable difference of opinion. While it is said that the question is a mixed one of law and fact, if the facts only are in dispute it is a question for the jury, and one which is necessarily dependent upon the circumstances of each particular case. When the facts are in dispute the jury should decide, under the instruction of the court as to the law, and where the facts are undisputed, it is purely a question of law, and the court should decide it. In determining what is a reasonable time with respect to custody of baggage after it has reached its final destination, the course of business and practice of the carrier constitute an important element in the question. If it is customary for a carrier to close its depot so soon after the arrival and departure of an evening train that the baggage handlers do not customarily go to the depot at night, the failure of the passenger to remove his baggage until the next morning does not necessarily relieve the carrier from its liability as such in the interim. 5 Ruling Case Law, p. 216, and cases cited. We have examined the cases cited by counsel for both parties. There is much force in the position taken by plaintiff’s counsel that the custom of leaving baggage overnight was shown in this case by uncontradicted evidence; and upon that question the court might well have instructed the jury that the defendant was liable as a common carrier. We think the court should have so charged. However, the court permitted the jury to determine whether a reasonable time had elapsed, and, if so, whether there was any negligence for which defendant was liable as a warehouseman. The jury found, either that a reasonable time had not elapsed, and that defendant was liable as a common carrier, or that such time had elapsed, and defendant was guilty of negligence. In other words, defendant was not prejudiced by the submission to the jury. An examination of the authorities leads us to the conclusion that no error was here committed of which the defendant can complain, as we find there was some evidence in the case upon the question of negligence, and sufficient upon that subject to carry the case to the jury. The following cases refer to the subject of custom: Geo. F. Dittman Boot, etc., Co. v. Railway Co., 91 Iowa, 416 (59 N. W. 257, 51 Am. St. Rep. 352); Tallman v. Railway Co., 136 Wis. 648 (118 N. W. 205, 16 Am. & Eng. Ann. Cas. 711); McCoy v. Railroad Co., 84 S. C. 62 (65 S. E. 939); Ouimit v. Henshaw, 35 Vt. 605 (84 Am. Dec. 646); Powell v. Myers, 26 Wend. (N. Y.) 591; Moffat v. Railroad Co., 123 App. Div. 719 (107 N. Y. Supp. 1113). 2. As to the refusal of the trial court to permit defendant’s Exhibit No. 3, being the tariff schedule, to be introduced in evidence, it was objected to upon the trial by plaintiff’s counsel that this document and the evidence relating thereto were not admissible under the plea of the general issue; that in a tort action like the present against a common carrier to recover for loss of baggage, the defendant cannot rely upon a special contract limiting liability, unless the same has been specifically or affirmatively pleaded. Our Circuit Court Rule 7b provides as follows: “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.” This rule took effect January 1, 1897, and was adopted by this court in pursuance of the provisions of section 10074, 3 Comp. Laws, which reads as follows: . “The Supreme Court may make such rules in relation to notice of matters intended to be given in evidence by either party, as shall be necessary to prevent surprise, and to afford opportunity for preparation for trial.” This rule has been applied by this court in the following cases: Bryant v. Kenyon, 123 Mich. 151 (81 N. W. 1093); Walbridge v. Fuller, 125 Mich. 218 (84 N. W. 133); Putze v. Insurance Co., 132 Mich. 670 (86 N. W. 814, 94 N. W. 191); R. K. Carter & Co. v. Weber, 138 Mich. 576 (101 N. W. 818); Scott v. Longwell, 139 Mich. 12 (102 N. W. 230, 5 Am. & Eng. Ann. Cas. 679); Richardson & Co. v. Noble, 143 Mich. 546 (107 N. W. 274); Baumler v. Insurance Co., 148 Mich. 430 (111 N. W. 1069). The following cases in other jurisdictions bear upon this subject: Aultman Co. v. Railway Co., 143 Iowa, 561 (121 N. W. 22); Michalitschke v. Wells Fargo & Co., 118 Cal. 683-689 (50 Pac. 847); Chicago, etc., R. Co. v. Dunlap, 71 Kan. 67 (80 Pac. 34); Missouri, etc., R. Co. v. Grocery Co., 55 Kan. 525 (40 Pac. 899); Lacey v. Railroad & Navigation Co., 63 Or. 596 (128 Pac. 999); Nashville, etc., R. Co. v. Parker, 123 Ala. 683 (27 South. 323); St. Louis, etc., R. Co. v. Wilson, 85 Ark. 257 (107 S. W. 978); Deierling v. Railroad Co., 163 Mo. App. 292 (146 S. W. 814). A reference to the above cases will show that they sustain the position claimed by the plaintiff. In our opinion the claimed defense, seeking to restrict the liability of the carrier, was not admissible under the general issue. Upon this subject the defendant’s counsel cite the cases of Eureka, etc., Steel Works v. Bresnahan, 66 Mich. 489 (33 N. W. 834), and Rogers v. Robinson, 104 Mich. 329 (62 N. W. 402). It evidently escaped the attention of counsel that both of these decisions were made before the adoption of Circuit Court Rule 7, which materially changed the practice upon that subject. 3. What we have already said disposes of defendant’s claim under this head. It may be said, however, that, it appearing that there was no fraud or deceit on the part of the plaintiff in checking the baggage, we think the case is controlled by Farnsworth v. Express Co., 166 Mich. 676 (132 N. W. 441), where reference is made to the proviso in section 40 of Act No. 300, Pub. Acts 1909, being the last clause of said section, which reads as follows: “Provided, that nothing herein contained shall be so construed as to abridge or in any wise lessen the liability of any such common carrier as it now is under existing laws.” . This court said: “In view of the proviso of section 40, above quoted, we are of opinion that it was not the intention of the legislature to change the common-law liability of carriers as it had existed prior to the passage of the act.” Unless we are to overrule the Farnsworth Case, it must be held to be controlling of this question, notwithstanding the rulings of the Supreme Court of the United States in Boston, etc., Railroad v. Hooker, 233 U. S. 97, 34 Sup. Ct. 526, and kindred cases relating to the interstate commerce act and its amendments, which latter act differs materially from the Michigan act, above referred to, and contains no such proviso as that above quoted. So, in any view of the case which we are able to take, we are of opinion that the record discloses no error of which the defendant can complain. The judgment of the circuit court is therefore affirmed. Brooke, C. J., and McAlvay, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred.
[ 13, 51, 50, 21, -41, 1, -11, -19, 8, -7, -21, 22, 0, -30, -18, 0, 14, -3, 38, 5, 67, -57, 20, -63, 0, -34, -9, -6, -29, -5, 2, 26, 44, -19, -5, 75, 22, -44, 26, 1, 5, -30, 48, 5, 25, 10, 46, -14, 60, -56, 9, -16, -1, -33, 12, -7, -30, 6, 21, -6, 31, -54, 34, -35, 21, 9, -22, 39, -21, 8, 3, 13, 20, 18, 12, 0, -2, 28, -18, 35, 17, -24, 20, -53, -66, -20, 11, -16, -52, -25, -14, 15, 6, 19, 27, 14, -59, -28, 0, -23, -10, 4, 0, -43, -3, 4, 30, -39, -40, 22, -5, 21, 22, -36, -15, -18, 7, -62, 7, -1, 41, -31, -11, 25, -23, -1, 25, 22, -28, 0, 35, 12, -37, 46, -8, -1, -23, -25, -7, 29, 47, 29, 0, 10, -36, -51, 33, 30, -32, -13, -18, 54, -6, -1, 13, 28, 1, 0, 59, -53, 0, -3, 41, 9, -47, 12, 4, -23, -37, 23, -45, -33, 16, -13, 30, 45, -19, 19, -32, -43, 11, 5, 0, -36, 1, -46, 27, -6, -2, -16, 55, -17, -39, 15, -40, 42, -25, 2, 16, 13, 17, -12, -34, -5, -49, 0, 73, 10, 22, 3, -7, -3, -8, -27, -23, 11, -33, -50, 59, -56, -19, -18, 17, 53, -3, -9, -12, 28, 23, 11, -13, -30, 43, 32, -31, 0, 19, -28, 28, -10, 14, -14, -48, -35, 37, -37, -40, -3, -5, 53, 17, -24, -43, -14, 45, -30, 16, -11, 5, -5, -3, 59, -28, 9, 23, -3, -5, -5, -25, 19, 5, -28, 41, -17, -7, -32, 9, -6, 37, -25, 17, -36, -44, -1, 11, -19, -1, 7, -14, -15, -26, 35, 31, 7, 5, 33, 14, 23, -3, 17, -10, 38, -6, -45, 7, 23, -30, 15, -23, 25, 24, -13, -3, -26, 16, -11, 59, 22, -10, -43, -5, 22, -41, 50, 50, 65, -33, 0, 33, -54, 37, 14, 14, -6, -56, 0, 3, -27, 50, -11, 29, 31, 12, -13, -30, 0, -12, -52, -28, -20, -5, -30, 35, 28, 29, 26, 16, 14, 19, 62, 43, -6, 37, 25, 28, -54, -62, -37, -25, 25, 33, -7, -1, -12, 25, -8, -25, -33, -20, 47, 14, -22, 13, -4, 30, -50, -39, -21, -62, 35, -40, 40, 49, 39, -46, -26, -21, 14, -12, -4, 8, 69, 16, 28, -8, -21, 15, 56, 28, 21, -3, -13, 26, -22, 28, -12, 25, 23, -6, 15, 26, -1, 8, -45, 54, -30, 9, 0, -45, -9, -2, -11, 32, -4, 0, 24, -41, 18, 6, -18, -19, 11, -7, 37, 3, 7, -64, 56, 47, -4, -44, -12, -11, 0, -15, 56, 5, 0, 58, 30, -1, -19, 30, 42, -32, -21, 31, -50, 53, 36, -4, 40, -50, -17, -44, -6, 12, -30, 8, 42, -2, 35, -15, -2, -26, -20, -7, -13, 36, 71, 3, 16, 18, 21, 37, 36, -48, -30, 55, 14, -3, -16, -18, 2, 19, 31, -24, -17, -20, 45, 21, 1, 12, -38, 35, 29, -42, 14, 0, 23, -13, 34, -3, 25, -30, -14, 46, -36, 2, -33, 4, -21, -13, 1, -41, -39, 41, 0, 30, -14, -5, -29, 29, -27, -32, -6, 6, -65, -17, 2, -9, 23, -4, -42, -38, -7, -26, 25, -29, -10, -62, -9, 35, -17, 10, -16, -23, -9, 29, 10, 18, 36, 17, -27, 39, 26, 30, 12, -48, -6, 14, -4, 8, -33, -18, 9, -13, 18, -61, 38, 10, -35, -57, -10, 11, 21, 2, -24, 45, -4, 7, -75, -20, -11, 6, -16, -34, 52, -12, 5, 30, -17, -7, 1, -40, 29, -16, 0, 9, -20, -9, -34, 21, 15, 34, -11, -13, 27, 0, 12, -42, -26, -15, 43, -19, 15, 52, 14, -19, -51, -2, -54, 26, -9, -27, -31, -41, 30, -25, 53, -6, 10, 64, 9, 13, -3, -3, 7, -2, -44, -16, 8, -32, 22, -6, 8, -13, -51, 58, 0, 39, -71, -44, -5, -22, -55, -26, 10, 23, 1, 12, 28, -14, -15, -13, 2, -65, 35, 10, -36, -15, -4, -33, 18, 17, 17, 10, -28, 20, -17, -37, -5, 13, 33, -5, 17, -6, -10, 1, 6, 35, -13, 39, 0, -2, -3, -19, 4, -28, 27, -10, -48, 36, -41, -14, 4, 13, -44, -19, -16, 32, -36, -3, -37, -29, -2, -45, -25, 22, -21, -5, -22, 8, -10, -20, -5, 12, 47, -9, -18, 14, 25, 33, 46, 18, -27, -14, 31, -54, -57, -7, 18, -15, -36, -23, 24, 4, -37, 22, -14, 4, -3, -23, -19, -25, 34, 23, 21, -4, -4, 10, -12, -6, 24, -43, -8, -24, 8, 37, -10, -20, -52, 0, -18, -33, -4, 25, 11, 8, 3, -37, -4, -18, 30, 2, 3, -2, 2, -35, 8, -49, 5, -16, -45, 13, 21, 16, 4, -4, 41, -5, 18, 30, -49, 0, 19, 18, -1, 22, 2, 30, -3, 2, -1, -45, 42, 35, -53, -13, 32, 20, -6, -36, 17, 9, -15, 7, 13, 12, -4, -22, -13, -3, -2, 7, -20, 3, -5, 29, -17, 6, -10, -80, -30, -34, -16, -49, -12, -37, 27, 49, 34, -40, 38, -14, -14, -17, 13, 35, -28, -49, -25, 72, 13, 8, 48, -11, -50, 10, 29, 36, -22, -26, 2, -1, -27, -15, -24, -13, 7, 16, -30, -33, 2, -29, -14, 8, -45, -8, -2, 4, -49, -10, 1, -22, 15, -15, 11, -6, 31, 14, -27, 28, 0, -4, 39, 57, 13, 17, 69, -44, -36, 15, -48, 59, -24, 20, -54, 24, 29, 27, -33, 4, 11, 25, 3, -3, -14, 13, -2, 31, 27, 30, 67, 2, -16, -19, -6, -20, -4, 43, 32, 33, 2, 19, 19, -6, -16, -23, -37, -30, -6, -30, -28, 34, 17, 16, 32, 1, -8, 3, -40, -53, -10, 12, -9, 25, -11, -30, 38, 7, 14, -33, -29, 16, 14, 35, -30, -9, -57, 16, -72, 17, -5, 62, 18, 9, 48, -20, 54, -26, 5, 18, 73, 11, 54, -25, 17, -38, -30, 17, 13, 43, 47 ]
Bird, J. These proceedings were begun by complainant to foreclose a mortgage for $700, which was a lien on certain premises situate in Tyrone township, Livingston county, and described as: “A piece of land commencing 20 rods south of the northwest corner of section 27; thence south 46 2/3 rods; thence east 240 rods; thence north 66 2/3 rods; thence west 160 rods; thence south 20 rods; thence west 80 rods to the place of beginning.” The premises were owned by Ambrose Hoyt, and there were two mortgages thereon one for $1,750, and another for $700, which was a second mortgage and is the one involved in this controversy. With these two incumbrances thereon, Hoyt, on the 25th day of March, 1910, sold the premises to defendant Shields for an agreed consideration of $8,200. The consideration was made up of the following items: $1,750 mortgage, with accrued interest; $700 mortgage, with accrued interest; $100 to the tenant on the farm; $64 to a real estate broker; and $140 in cash to Hoyt. Shields paid nothing on either the principal or interest, and the first mortgage was foreclosed by advertisement by the Chamberlain estate, and bid in by the executors. The equity of redemption expired April 13, 1912. In October, 1912, six months later, defendants Shields purchased the premises from the executors of the estate for $2,401.41, and thereafter defendants Shields refused to recognize complainant’s mortgage as having any force or effect. In June, 1913, complainant filed this bill to foreclose her mortgage. The theory of the complainant was that by the covenants in the mortgage it was obligatory on both Hoyt and Shields to pay the mortgage; that, having made default therein, and Shields afterwards having acquired title thereto from another source, he was estopped from denying that the purchase of such title inured to the benefit of the complainant. The chancellor took this view of the case, and granted a decree of foreclosure and a decree for deficiency against both Hoyt and Shields. The propositions argued by counsel for defendants Shields are: First, that the verbal promise to pay the mortgage would not bind the defendants Shields; second, that they now hold title to the land in question by warranty deed from the executor of the estate of Ezra Chamberlain, deceased, and that this title is paramount to and free and clear from the mortgage claim of the complainant; and, third, that in no case can they be held personally liable because the complainant’s bill does not ask for a personal decree as against them. 1. The deed from Hoyt to Shields did not recite either that the grantee assumed the mortgages or that he agreed to pay them. In warranting the title, however, the mortgages were excepted, but no further reference was made to them in the deed. It is the claim of Hoyt that the promise of Shields to pay the mortgage was a part of the consideration for the deed, and reliance is had upon the verbal promise of Shields to pay the mortgages and the accrued interest thereon. It is objected that this proof was not competent to establish the fact. We think it was. The testimony is convincing that the promise to make payment of the mortgages was a part of the consideration of the deed. Under such circumstances the general rule has been stated to be that: “The purchaser of mortgaged land may assume the payment of the mortgage debt in such a manner as not only to relieve the grantor of the incumbrance, but also to make himself liable to the mortgagee, by any contract or agreement on his part which distinctly manifests his consent and intention to charge himself with such personal responsibility, * * * and the agreement may even rest wholly in parol, and in that case is not considered as being within the statute of frauds.” 27 Cyc. p. 1345; Strohauer v. Voltz, 42 Mich. 444 (4 N. W. 161). Our conclusion is that it was competent to show by parol testimony that the promise to pay these mortgages was a part of the consideration for the conveyance. 2. We do not think it can be said that the title purchased by Shields from the Chamberlain estate inured to the benefit of complainant’s mortgage. The proceeding by which the mortgagors’ title is cut off is statutory and certain. It provides that: “Unless the premises described in such deed shall be redeemed within the time limited for such redemption, as hereinafter provided, such deed shall thereupon become operative, and shall vest in the grantee therein named, his heirs or assigns, all the right, title, and interest which the mortgagor had at the time of the execution of the mortgage, or at any time thereafter.” 3 Comp. Laws, § 11142. Under the proceedings had to foreclose the first mortgage on and after April 13th, the title of Shields was extinguished, and this necessarily carried with it the mortgage lien of complainant, and thereafter the title vested in the purchaser. If this be true, how and when and by what process was complainant’s lien revived or a new one created for her? It is argued that the situation is analogous to the buying of a tax title by a cotenant; that in such case the purchase of a tax title by one cotenant inures to the benefit of his cotenant. The difficulty with this argument is that the relations of the parties to this proceeding are not analogous to those existing between cotenants. The rule that the purchase of a tax title by one cotenant inures to the benefit of his cotenant arises out of the rules of law governing the relation of cotenancy. Complainant is not a cotenant with either Hoyt or Shields, but the relation is that of debtor and creditor, and therefore adverse. In the present case the Chamberlain estate was clearly within its statutory rights in foreclosing its mortgage, and after'the sale Shields and complainant were given a year in which to redeem and protect their respective interests. Neither of them saw fit to embrace this privilege extended to them by the statute, with the result that the title interest of Shields and the mortgage lien of complainant were extinguished, and the Chamberlain estate became the owner thereof. Under such circumstances the theory of the complainant cannot be sustained. Some claim of bad faith and collusion is made against Shields and the executors of the Chamberlain estate, but we think the charges are not sustained by the proofs. The decree of the trial court will be reversed, and the bill dismissed, with costs of both courts to appellants. Brooke, C. J., and McAlvay, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred.
[ -35, 13, 13, 25, 2, 4, 26, 39, 35, -35, -47, -24, 20, 61, -8, 24, -23, -37, -3, 22, 4, -45, -74, 18, 42, 8, 41, -9, -18, -3, 31, -4, -42, 10, -29, -36, -22, -4, 21, -22, 8, -4, -21, -45, 1, 0, -38, -12, -17, 30, -10, -14, 38, -33, -60, 6, -2, 26, 4, -16, 16, -47, 2, 24, -23, -31, 4, 39, 32, -60, 15, 15, 28, -92, 13, -2, -18, -55, -48, -38, -15, 12, 42, 33, -39, -17, -47, -27, -30, 28, -28, 76, 24, 62, 16, 0, -7, 76, 7, 37, 0, -20, -6, 56, 1, 10, -50, -32, -6, 21, 8, -10, 70, 2, -24, -6, -20, -15, 4, -7, -2, -15, -16, -72, -10, 7, -35, -30, -29, 16, -11, -19, -50, 9, -58, -32, 2, 10, -19, -23, 34, -58, -4, -53, -1, -42, 29, -46, 22, 13, -26, 37, 12, 43, 6, 0, 63, -7, -15, -11, 23, -13, 11, -28, -51, -21, -17, 47, 10, -13, 22, 20, -29, -51, -25, -81, -12, -13, -13, 72, 22, -34, -16, 12, 19, -63, -17, 19, 11, 24, 18, -5, -14, 10, -16, 58, -33, -35, -20, 13, -3, 0, -4, -48, 1, -57, 36, -46, -37, -54, -19, -19, -26, 4, -31, -1, 21, 28, 18, 29, 11, 40, -43, 41, -55, -56, 27, -37, 4, -6, -2, 14, -19, 13, 0, 29, -8, 30, -14, 85, -21, 0, -5, -33, -43, -26, -50, 24, -26, 6, -13, 46, -56, 40, -6, 9, -37, -2, -29, 13, 43, 24, -52, -27, 48, 5, -9, 0, 12, 39, -14, -40, 40, 48, -49, 17, -3, -11, -50, -41, 44, -17, -35, -18, 38, 42, -4, 21, -21, -42, 16, -17, -12, 22, 12, 0, -29, -18, 8, -15, -22, -19, 12, -29, -5, 2, -20, -42, -24, -5, 15, 10, -10, -32, 18, -5, -10, 33, 39, -56, 42, 0, -21, 47, 21, -4, 38, -62, -50, 22, 2, 15, -10, 15, 8, -2, 9, 4, -3, 28, -6, -11, 49, 12, 67, -7, -42, 4, -49, 40, -41, 4, -41, 51, -26, -5, -10, 32, -4, 6, 22, 6, -15, 9, -4, -43, 11, -30, -7, 35, 47, -2, 19, 1, -51, 20, -43, 12, 1, 34, 4, -24, 2, 47, 45, -13, -21, -8, -1, 29, -67, -27, 3, 18, 40, 3, 0, 4, -80, -20, 23, 0, -35, -1, -38, 35, 9, -70, -32, 2, 4, -24, -25, -21, -2, -8, 1, -2, 43, 28, 17, -31, 31, 14, 40, -47, 18, -15, -42, 6, -23, 26, -14, 28, 53, 15, -19, -15, 9, 17, 10, 24, 54, 13, 75, 17, -38, -26, 24, 34, -23, 38, 3, 3, -3, 0, 66, -42, 26, -24, 58, -8, -14, 26, 10, 2, -30, 11, 14, 31, 18, 4, 25, 20, -9, -25, 46, 1, -18, 2, -3, -18, 3, 40, -55, -25, -43, -54, 21, -35, 15, -32, 16, 59, 5, -25, -13, -51, -2, 33, -5, 32, -21, 34, 42, -7, -52, -57, 13, 32, -35, -40, -23, 45, 1, 50, 81, -1, 38, 8, 40, 25, -81, -26, 16, 27, 1, 70, 16, 8, 3, 21, -18, 29, 2, 11, -3, 73, 27, -50, -41, 52, 36, 77, 13, -17, -14, -4, -3, -15, 15, -35, 33, 39, 12, 15, 14, -36, 20, 25, -6, -41, -32, -31, 11, -53, 45, -19, -22, 6, -7, -2, -20, 16, 18, -22, -52, -32, -8, 1, -21, -45, 12, -38, 43, 25, 32, -6, -29, 42, 21, -18, -39, 1, 36, -27, 7, 20, 2, 58, -27, -29, -10, -21, -12, -15, -29, 20, 28, 18, -5, -1, -33, -1, -19, -3, 12, 0, 6, 18, -9, -15, 37, -32, 0, -12, 22, -11, 12, 47, 7, -44, 28, -9, 6, -20, -6, 31, 9, -31, -34, 0, -59, -21, -23, -2, -46, -34, 44, -24, -50, 22, 0, 17, -9, -7, 32, -9, 51, -41, 63, -28, -18, 34, -13, -58, 20, 13, -4, 8, 63, -52, 16, 7, 28, 23, -22, 36, 38, 0, 56, 23, 3, 32, 12, -27, -1, -32, -24, 0, 6, -35, -3, -17, -4, -39, -8, 23, -41, 41, 79, -14, -13, -3, -25, 21, -12, -13, -1, -43, 22, 0, 16, 16, 31, 29, 37, 3, -37, 43, 34, -8, 24, -55, -35, 3, 36, -14, -37, 1, 16, 0, -56, 31, 0, 67, 7, 48, -15, -58, -28, -52, 16, 27, 14, -11, -29, 32, 7, 2, 33, -12, -21, -20, -41, -16, -25, -3, 8, -3, 17, 22, 19, -19, 2, 3, 27, -25, 1, -60, -14, 20, -12, -10, 33, 3, 2, -24, 38, -31, 27, -29, 9, -39, 30, -53, 12, 20, 24, 22, 0, -18, -2, -18, -22, 23, 69, -11, -6, -18, -44, 50, -20, 10, 38, -4, -33, 31, 12, 25, -7, -24, 15, -40, -5, 48, 5, 24, -18, 24, -40, 55, 47, -24, -53, 45, -42, -17, -39, -11, -4, -43, 0, 3, 65, -11, 11, 40, -12, -1, 19, 19, 1, -29, 7, 14, -5, 18, -6, -36, -19, -33, 17, 29, -54, -49, -18, 23, 3, -28, 67, -5, -23, -4, -14, 3, -33, -18, 33, -7, 3, 21, 6, 32, 28, -31, 14, -20, 29, -27, -26, 8, -25, 51, 7, 68, 16, -65, 19, 65, -25, -18, -46, 13, 22, -7, 53, -18, 21, -25, -1, -36, 20, 4, 6, -19, 5, 22, 9, 28, -5, -11, -24, -44, -39, 25, 25, -17, -10, 60, 29, -19, -54, 1, -7, 25, 9, 30, -12, 37, 31, 33, -33, -21, -20, -16, 20, -25, 8, -2, 62, 6, -8, 3, -45, 68, 24, -17, 21, 48, -49, 17, 56, 47, 15, 35, -22, -44, 30, -5, -12, -14, 45, -88, 3, 8, 49, 36, -38, -2, 41, -40, -39, -12, -23, 22, 56, 32, 44, -41, 19, -53, -35, 33, -59, 0, 67, 15, -78, -14, 4, -39, -27, 17, -11, -17, 21, -23, -1, 18, -20, -27, 61, 32, 26, -55, 11, 8, 19, -55, -11, -6, 42, 25, -24, 52, 27, 29, -22, 22, 37, -31, -10, 37 ]
McAlvay, J. The bill of complaint in this case was filed September 9, 1913, by the banking commissioner against this bank, its president, directors, and officers under the statute, it having become insolvent, for the purpose of the appointment of a receiver and for liquidating its assets. The matter proceeded in due course until February 9, 1914, when an order of the court was made authorizing the receiver to pay a first dividend of 20 per cent, to all creditors. The receiver refused to pay any of said dividend to “A. K. Edgar, trustee,” the petitioner herein, and he thereupon filed the petition in this cause, praying for an order directing the receiver to pay over to him as trustee the amount of the dividend represented by him claimed to be due. The receiver answered this petition, and, the matter having been fully heard before the court, an order was entered denying the prayer thereof. Petitioner has appealed from this order. Petitioner, claiming to be trustee for himself, E. L. Davis, Manly D. Davis, Edmund Foster, and R. E. Jossman, at the time the bank failed, had on deposit in said bank in his name, as trustee, the sum of $1,995.60. What the relations of these parties were to each other and to the bank as far as this deposit was concerned cannot be gained from the contents of this petition. It has been necessary, therefore, to examine the entire record for that purpose. From such examination we are able to make the following statement: It appears that the five persons named whom petitioner claims to represent in his petition organized, whether according to law or not does not appear, the International Live Stock & Timber Company of Mexico, and bought, probably in its name, 65,000 acres of land in Mexico. A large amount of the stock was issued to these five men, who signed their joint notes for the sum of $50,000 in payment for the land which was bought, or it may be as guarantors of the company’s debts for that amount for which they held the company’s notes. Whichever it was, they were indemnified against all their liability to the company and secured by other collateral securities. The entire amount of stock each took does not clearly appear. It does appear that they did sell some of their stock, the amount of which is not stated. It also appears they borrowed some money from private individuals for which they also gave their joint notes. This borrowed money and money arising from the sales of stock went into this account of “A. K. Edgar, trustee,” and was to be used to pay pressing debts and interest arising out of this Mexican venture. This was done by them without authority of the company or any corporate action. It was wholly voluntary on their part and entirely independent of the company. They also created what they call a pool of some of their individual stock, and each of the five men put in 20 shares under an agreement between them that such stock was to be held by the bank and not to be delivered to each individual until all the money they had borrowed for the above purpose had been paid in full. Jossman, who was cashier of the bank, disregarded this agreement and took out from the custody of the bank his own stock and delivered to Foster and Edgar their stock a short time before the bank closed. It was valueless and the company had no credit. Petitioner positively testifies that this credit to his account as trustee belonged to himself and the four men he mentions equally, to each one-fifth. Petitioner was president, Foster was a director, and Jossman was cashier of the insolvent bank. One or two of the others were stockholders. Four of them at the time the bank was closed by the commissioner were largely indebted to the bank, Jossman in the sum of more than $100,000, petitioner in the sum of $3,000 or $4,000, the others in sums from $2,000 down to $800. Petitioner was treasurer of this Mexican company they were apparently promoting. Jossman was its secretary. One of the others was president. Edgar, as treasurer of the Mexican company, had an account credit in the bank at the time its doors were closed, which belonged to the company. Upon this claim the receiver paid the first dividend of 20 per cent, without question. The contention in the ease upon the part of the petitioner is that as trustee for himself and four others he held a valid claim against the bank and owed it nothing, so that it held no valid set-off against him, as such trustee, therefore, he was entitled as such trustee to participate in the first dividend as a bona fide creditor. We cannot agree with such contention. The evidence in the case supports the contention of the receiver that this fund in dispute, deposited in the name -of petitioner as trustee, was not the property of the company, but was the property of these five men of which each individually owned one-fifth. This is clear, however muddled other transactions in relation to handling the stock of the company* may appear, and was recognized by the petitioner, who was at the same time its treasurer. We find, then, the relation of this insolvent bank, by its duly appointed receiver, to the petitioner and the four men named, who were operating with him, to be the same as if each had been a depositor in this bank to the amount of one-fifth of the sum $1,995.60, in which relation they are to be dealt .with by the receiver in exactly the same manner as if they were individual depositors. The fact that the petitioner used the word “trustee” in designating this account did not change the relation of these parties, who operated together in this matter to each other or their individual relations to the insolvent bank. Their real relations may be shown. The principle involved is the same as in case of a suit upon a promissory note between the original parties. A defendant maker who signs as “agent” may show who were in fact the parties to the note. Keidan v. Winegar, 95 Mich. 430 (54 N. W. 901, 20 L. R. A. 705); Metcalf v. Williams, 104 U. S. 93. The principle is well settled that' the deposits and notes of the same person in an insolvent bank can be set off against each other even before the maturity of the notes in the hands of the bank. Thompson v. Trust Co., 130 Mich. 508 (90 N. W. 294, 97 Am. St. Rep. 494); Scott v. Armstrong, 146 U. S. 499, 13 Sup. Ct. 148. In the case last above cited, the distinction between the rule of set-off applied in cases of equity and the strict rule of set-off at law is clearly stated. In the instant case the receiver of this insolvent bank was entitled to set off against the individual share in the deposit in question of each of the four persons owning such share the amount of his indebtedness to the bank. The order and decree of the circuit court is therefore affirmed, with costs against petitioner. Brooke, C. J., and Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.
[ 34, 3, 40, 36, 42, 25, 41, -9, 17, 2, 0, -9, 9, 48, -10, 0, 42, -32, 18, -2, -9, -33, -5, 38, -23, -57, 22, 17, 29, 32, 11, -11, -19, 13, 5, 20, -40, -29, 15, -5, -15, 4, 25, 0, -26, 18, 6, -39, 53, -3, 36, -8, 24, 42, -20, -25, -42, -6, 15, 15, 24, -16, 60, -15, 10, -44, -13, 27, 43, -8, 13, 11, 25, 19, 21, 17, 2, -61, 8, -34, 2, -37, 12, -28, -89, 15, -34, -35, -41, 35, -38, 22, -29, 2, 9, 6, 44, 44, -6, 10, 32, -65, -22, -12, 29, 8, 0, 3, 26, -32, 38, 0, 6, -16, -36, 11, -37, -13, -45, -63, -42, 41, -15, -42, -56, 5, -10, -3, -35, 48, 30, -3, -90, -3, 11, -13, 36, -30, 64, 31, 35, 34, -45, -27, -60, 27, 15, -34, 31, 9, 22, 18, -14, 36, 34, -15, -14, -13, -4, -84, 9, 14, 37, -70, 0, 20, 13, -31, -5, 0, 13, 4, -23, 5, 0, -38, 23, -27, -37, -10, 10, 35, 43, 4, 16, -18, -3, 3, 0, 5, 5, -26, 19, 26, -10, -23, 40, -34, 77, 32, -12, -28, -3, -6, -11, -2, 11, 35, 0, -1, 11, 21, -4, 11, -36, -2, -16, -33, 48, -13, -23, 50, -12, -13, 6, -44, 33, 22, 14, 1, -50, -24, 53, -20, -1, 24, 30, 11, 19, -41, -44, -5, -24, -65, -5, -3, -8, -22, 4, 48, 11, 28, -18, 15, -29, 12, -12, 29, -23, -37, 0, -2, -5, 46, 64, -63, -34, 13, 24, 10, 36, -74, 36, -10, 1, -12, -16, 10, -9, -42, 40, -32, -16, 17, -57, -10, 43, -13, -11, 9, 35, 39, 71, -11, 39, -3, -48, -9, 26, -11, -35, -22, -12, -53, -8, 35, -33, -35, -47, -33, 44, 10, -8, -46, 47, -45, 22, 52, 19, -18, 16, -29, 6, 1, 68, 5, 78, -47, -9, 20, 22, -26, -10, -18, -77, 22, 28, -14, -3, -7, 22, -22, -11, 2, 4, -14, -20, -20, -6, 15, -13, -3, -21, 29, -18, -2, 21, 31, -24, 32, 0, -28, 11, -11, 37, 20, -72, -11, -12, 29, 43, -3, 6, -23, 38, 17, -51, 21, -24, 0, -2, 13, 17, 10, 39, -41, -11, -20, -44, -1, -42, 43, -8, 29, 2, -40, -9, -25, -28, 0, -16, 44, -15, -32, -81, -36, 61, -13, 36, 0, 30, -7, 18, -23, -14, -37, -2, 8, 46, 32, 50, -33, 12, 11, 30, -11, 16, 30, -9, -56, -53, -1, -23, 8, 11, 29, 17, -12, 12, 25, 44, -16, 15, 21, 40, 7, 9, -45, 29, 42, 14, -13, -61, -32, -25, 18, 24, -20, 22, -22, -10, 6, 53, 70, -7, 29, 51, -10, 54, 8, 7, 14, -50, -50, -41, 34, 7, -1, 0, -25, -5, -5, 53, -5, -41, -10, -42, -26, -44, -37, 27, 16, 42, 18, -51, -27, -17, -37, 27, -11, 6, -8, 34, 13, 3, 19, -50, -33, 16, 87, -32, -51, -6, -2, -7, 63, -41, 8, 73, 21, 20, -18, -75, 15, 0, -5, 18, 45, 72, -27, -29, -36, 4, 30, -24, 28, -20, 20, 0, 11, -36, 0, 65, 13, 8, 12, 3, 15, -29, 0, 5, -30, 71, -24, 2, 32, 24, -6, -32, 7, -42, 3, 0, -30, -8, -57, -24, 29, -19, 13, 17, 29, 38, 57, 4, 67, -9, 14, -2, 3, 14, -58, 0, -44, -17, 53, -26, 32, -43, 1, 34, -21, -15, 22, 16, -7, 55, 16, 40, 26, -52, -24, -31, -32, -31, -26, -25, 62, -40, 1, -20, -17, 68, 45, 7, -40, 20, -13, 51, 19, 24, 21, 13, -11, -6, -15, 19, -1, 30, 78, 2, -40, -75, -25, -14, 13, -89, 1, -21, 12, -34, -13, 16, 10, -10, -6, 12, 6, -8, 40, -21, 9, 55, 60, -53, -39, 52, -2, 8, -11, 44, 1, -8, 29, 1, -28, 3, 26, 34, 41, -4, -45, 42, -17, 17, -33, -42, 31, 6, -9, -18, -13, -8, 5, 28, 16, 8, 21, 7, 16, 33, -37, -15, 40, -33, 11, 23, 8, 11, -31, -1, 12, 0, 18, -13, -24, -43, -10, -19, -12, 16, -32, 19, -37, -16, 24, 48, -27, -50, -39, 7, 3, 71, 17, 13, 77, 10, -64, -60, -26, 3, 47, 8, -4, 11, 4, -2, -28, -7, -33, 24, -31, -20, 12, -37, 7, -49, 32, 14, -16, -38, 4, -16, 23, 1, 5, -71, 0, -26, -36, -39, 5, 15, -35, -59, 4, -27, -52, -2, -28, 12, 6, -12, 2, -35, -8, 47, 12, 56, 31, -25, 39, -28, -13, 49, -86, -5, 37, 58, 22, -3, -28, 35, -3, -38, 31, 23, -16, -20, -40, -101, -34, -65, -1, 58, -12, 40, 4, -6, 31, -60, -76, 8, 9, 6, 67, -3, -2, -32, -23, -47, 42, 34, -33, 7, 36, 19, 45, -7, -23, -7, -54, -63, 8, 5, -1, 34, -14, 14, -36, -44, -4, -32, -2, 29, -29, -61, 30, -16, 17, 23, 6, -13, 10, -36, -76, -30, 4, -36, -8, 22, 13, -20, -18, -17, 18, -33, 25, 1, 24, -38, 50, -23, 0, -33, 23, 47, -72, 15, 5, -14, -21, -19, 1, 6, 22, 48, -8, 12, 35, -4, -30, -47, 42, 15, -25, 4, -29, 29, 37, -1, 3, -57, 3, -30, 1, 28, 58, 13, 33, 25, -26, -6, -32, -50, 41, 42, 5, -40, 22, -13, -8, -57, 20, 3, -27, 42, 67, 32, 23, 15, 32, 25, 3, 6, -33, 5, -17, 0, 4, 15, -24, 62, -10, -20, -33, 38, 27, -18, 15, 38, -15, -14, 22, 43, 23, -64, -14, -25, -3, -34, -34, -31, -29, 57, -4, 39, -32, -41, 6, 43, 5, -40, -59, 23, 9, 25, -47, 54, -43, 78, -19, -50, 25, -11, -32, 8, -15, -26, 19, 39, 38, 24, 3, 18, -19, 26, 2, -23, -25, 17, -50, 7, 14, -36, -25, 11, 4, 13, -27, -51, -12, 36, 63, -18, 27, 34, 40, 25, -2, 0, -14, -48, 55 ]
Moore, J. This action was brought for the death of a boy 16 years of age, who was found dead lying on the track in the tenth level north of shaft No. 1 in defendant’s mine. This level was a permanent one, having a car track, and was used as a passageway for those who worked in the mine. No one saw the accident. When the boy was found there were large rocks lying on him. He was lying on his back bn the car track. On the trial it was conceded the boy was working for defendant as a drill boy, and that he was instantly killed. From a judgment in favor of the plaintiff the case is brought here by writ of error. Defendant is seeking to have the judgment reversed for errors of two classes: (1) Errors in proceedings preceding the trial. (2) Errors during the trial. 1. The proceedings before trial which are claimed to be erroneous are substantially as follows: After the jury was called in May, 1912, counsel for plaintiff asked to amend the declaration by adding a third count, and proceeded to state in detail the contents of the proposed count. It recited the contents of the first count, and stated that the things therein done were contrary to the provisions of Act No. 285, Pub. Acts 1909 (2 How. Stat. [2d Ed.] §4009 et seq.), and that the boy, when killed, was engaged in duties which may be, and are, considered dangerous to the lives and limbs of male persons under the age of 18 years. The oral statement was explicit and definite as to what it was desired the third count should contain, and covers more than two pages of the printed record. The defendant objected to the amendment as stating a new cause of action, and that it was a surprise to defendant, leaving it with no opportunity to prepare its defense. The judge indicated his purpose to allow the amendment and to grant a continuance to defendant. We now quote from the record: “Mr. Driscoll: We also ask leave to amend— “Mr. Robinson: They may amend by consent to change the place of the accident about 500 feet to the north instead of 500 feet to the south. “Mr. Driscoll: If a continuance is taken on the ground of the amendment, we may be permitted to serve the amended declaration on defendant, adding the third and fourth counts, striking out the other counts which allege he is a man. “The Court: I think that is a good suggestion. “Mr. Driscoll: May it be considered that the amendment is made as of today? “The Court: Yes; then you may file an amended declaration and the amendment is allowed as of today. “Mr. Petermann: And the case goes over the term. “The above-entitled cause was, by consent of counsel on both sides, placed on the calendar for the May term of the Houghton county circuit court, but, before being reached, was continued over the term on the request of counsel for the plaintiff, and with the consent of counsel for the defendant. At the opening day of the August term of the circuit court for the county of Keweenaw, Hon. Patrick H. O’Brien, circuit judge, presiding, when the above-entitled cause was called for trial, the counsel for the defendant moved that the case be continued over the term on the ground that the plaintiff’s amended and substituted declaration was not filed and served until August 24th, and that the defendant had no opportunity to plead to the amended and substituted declaration. “As the cause could not be tried before Hon. Patrick H. O’Brien, circuit judge, a ruling, on the motion of defendant’s counsel, was deferred until Wednesday, August 28, 1912.” The motion was then overruled. This is said to be reversible error. The proposed amendment, as already appears, was stated in detail and became a matter of record. It was because of it that defendant was granted a continuance for the May term, and it was expressly agreed in open court that the amendment should be allowed as of May 23, 1912. We think the contention of defendant that the court erred in not granting a continuance over the August term is untenable. 2. Was there error during the trial? The case was submitted to the jury upon two counts. The first one was upon the common-law liability under the death act for negligence, and the third count for liability under the statute. At the close of the case for the plaintiff, and again at the close of all the testimony, counsel moved the court to direct a verdict for the defendant upon the third count for the following reasons: “The testimony shows conclusively that the boy was under the age of 18 years and employed as a drill boy, but also shows that the boy was so employed with the consent and approval of the parents, and the parents accepted from the boy his wages during the time he worked as a drill boy when he was under the age of 18 years, and on that point our proposition is that their acquiescence and approval of his employment was a participation by them in the violation of the statute, and it was just the same as if they had been guilty of contributory negligence; it is a participation by them in the violation of the statute, and will be governed by the same rules of law as if the parents were guilty of contributory negligence, which was a part of the negligence which caused the injuries to the child.” The court declined to direct the verdict as requested. This is said to be error. Defendant preferred a request reading as follows: “If you find from the testimony in the case that the employment of the boy under the age of 18 years was consented to, and acquiesced in by his father and mother, then I charge you that the plaintiff cannot recover for any violation of the statute mentioned in the third count of plaintiff’s declaration, as any such recovery on this action is for the benefit of the father and mother, and they are not permitted to consent to the employment of the boy while under the age prohibited by the statute, and to accept the benefits of such employment caused by a violation of the statute, and recover damages from the defendant company because the statute was violated. They have participated in the violation of the statute, and are therefore barred from any recovery in this action, if you find that they consented to the employment of the boy by the company while'he was under the age of 18 years, and received his wages while the statute was being violated.” This request was not given. The claim of counsel cannot be more concisely stated than to quote from the brief: “Upon this branch of the case we make two claims: (1) The trial judge should have directed a verdict for the defendant upon the third count upon the undisputed facts; or (2) in any event, he should have left the question to the jury to say whether the parents of the intestate consented to, and acquiesced in, a violation of the statute, and if they did so, then the parents should not benefit by its violation. “In suits brought under the death act for the killing of a child, the contributory negligence of the parents is imputed to the child to such an extent as to bar a recovery by them. * * * “In this case the pecuniary injury resulting from the intestate’s death is to the father and mother, and they would be entitled to any damages recovered in the action. The leading authority_ sustaining the above proposition is Feldman v. Railway, 162 Mich. 486 (127 N. W. 687).” Other cases were cited which may be found in the brief. Continuing, counsel say: “We submit there can be no difference in law in a suit brought under the- death act whether the real beneficiaries in the result of the case are barred from recovery because they have been guilty of contributory negligence themselves, as in the Feldman Case, or because they have actively participated in the wrongful act by permitting their minor son to be employed in violation of the statute and in receiving from him while so employed any wages he may have earned. In other words, the parents permitted and encouraged their minor son to work underground as a drill boy, and during such time received his wages. After he is killed they should not be permitted to say to the company: ‘Our son was working for you in violation of Act No. 285 of 1909 with our full knowledge and consent, and we received his wages while he was working for you in violation of that act, but that is entirely your fault and nothing for which we are to blame in any way.” In view of the claim of counsel, it is important to see what testimony there is upon which to base the motion or to grant the request to charge, which we have quoted. We quote all of the testimony upon that subject. It was given by the father of the deceased upon his cross-examination: “I never worked in the mine myself underground; I was six months lander. The duties of a lander are they get the rock from the shaft house or rock house, and push in and clean the rock out. How Nick happened to start to work at the Allouez mine, he get a job and want to work; he went and got the job himself ; he was carry water on surface about two months at the Allouez; he work ' about a month in Ahmeek as drill boy before he came to the Allouez; I knew he was working underground, and my wife knew it; I don’t know what a drill boy exactly got to do; • I know they pick the drills and change the tools for the miners; I knew he had to go underground to do that; I never objected to Nick working underground.” It will be observed that the witness had not worked underground, and there is nothing to show he knew how the work was conducted there. It also appears that the knowledge of himself and wife was limited to the statement that the deceased as a drill boy had to be underground. The third count of the declaration related to a violation of the terms of the statute. Working underground is not in terms forbidden by the statute. The language used as applicable to the instant case is: “No male under the age of eighteen years shall be allowed to clean machinery while in motion, nor employed * * * in- any other employment which may be considered dangerous to their lives and limbs.” Contributory negligence is usually a question for the jury. The court is here asked, by the motion to direct a verdict, to find it established as a matter of law. We do not think the testimony of Mr. Paskvan would justify such a course. We are then confronted with the query whether the court, in view of the testimony of Mr. Paskvan, erred in refusing to give the request to charge which we have quoted. It will be observed that nothing is said in the request about the parents having knowledge that their minor son was employed in an employment “which may be considered dangerous to lives and limbs,” and that, having such knowledge, they consented thereto. We do not find it necessary upon this record to say whether, in actions relying upon a breach of the statute, which was passed to safeguard the persons and lives of minors, the consent of the beneficiary under the death act would constitute contributory negligence which could be urged as a complete defense by the employer who violated the statute. We are clear, however, that the consent must be given understanding^ and with knowledge that the work entered upon may be dangerous to lives and limbs. We think it equally clear the request to charge was no't comprehensive enough in any view of the case to make a refusal to give it reversible error. Mr. Paskvan in his direct examination was allowed to testify as to the wages he earned; that he had a sore eye; “my wife can’t work very good; she got poor legs; the whole family is sickly;” the number of boys he had; and that one of them was blind in one eye. It is said this testimony tended to prejudice the jury and enlist unduly their sympathy in favor of the parents. No authority is cited in support of the contention that its admission was error. In Mulhall v. Fallon, 176 Mass. 266 (57 N. E. 386, 54 L. R. A. 934, 79 Am. St. Rep. 309), it is said: “In answer to the question to what extent, if at all, she was dependent upon her son for support, she answered that she was almost entirely dependent upon him for the last two years. This question was objected to, but was admissible. The extent to which particulars may be summed up in a general expression is a matter involving more or less discretion, and cannot be disposed of by the suggestion that the general expression involves the conclusion which the jury is to draw, or that it is law rather than fact. Poole v. Dean, 152 Mass. 589, 591 [26 N. E. 406]; Wind- ram v. French, 151 Mass. 547, 550, 551 [24 N. E. 914, 8 L. R. A. 750]. The question to what extent she was dependent upon her son called for details of fact in a perfectly proper way. Whether the answer showed a sufficient dependence to satisfy the statute remained for the jury to answer under the instructions of the' court. Even more plainly admissible were interrogatories whether the son contributed to her support, and, if so, how much. The plaintiff also testified that she ‘had to turn around and go three miles to earn [her] support;’ that she had a boy that was hard set to earn from 8d. to Is. a day, and another boy an invalid. How far these statements should outweigh the others was for the jury. See Houlihan v. Railroad, 164 Mass. 555, 557 [42 N. E. 108]; Daly v. Steel & Iron Co., 155 Mass. 1, 5 [29 N. E. 507]; American Legion of Honor v. Perry, 140 Mass. 580, 590 [5 N. E. 634]. Partial dependence for the necessaries of life would be enough, as it is made in terms by the English statute. 60 & 61 Viet. c. 37, § 7, cl. 2; McCarthy v. Order of Protection, 153 Mass. 314, 318 [26 N. E. 866, 11 L. R. A. 144, 25 Am. St. Rep. 637]; Simmons v. White Bros. (1899), 1 Q. B. 1005; Atlanta & Charlotte, etc., Railway v. Gravitt, 93 Ga. 369, 372 [20 S. E. 550, 26 L. R. A. 553, 44 Am. St. Rep. 145].” In Cincinnati, etc., R. Co. v. Altemeier, 60 Ohio St. 10 (53 N. E. 300), the court said: “In the case of parents it may be shown that they were in circumstances and health requiring that the deceased child should aid them by his services, not only during minority, but thereafter. In such cases the financial circumstances and health of the parents are very important, because a parent in poor circumstances would likely be compelled to depend largely upon his minor children for support, while a rich parent would receive no financial aid from his minor children, and, on the contrary, would find them a financial burden upon his hands. A rich parent whose child is a continual financial expense to him, and who has no reason to expect financial aid from such child, sustains little, if any, pecuniary injury from its death beyond the funeral expenses; while a poor parent, and especially if in bad health, might reasonably expect substantial aid from his child, not only during its minority, but for years thereafter. “Any fact which tends to show the amount of the pecuniary loss to the beneficiaries is competent evidence, whether it tends to increase or diminish the damages. “The foregoing views are fully sustained by the following authorities, and cases therein cited: Potter v. Railroad Co., 21 Wis. 372 [94 Am. Dec. 548]; Potter v. Railroad Co., 22 Wis. 615; Johnson v. Railroad Co., 64 Wis. 425 [25 N. W. 223]; Thoresen v. Railroad Co. [94 Wis. 129], 68 N. W. 548; Lockwood v. Railroad Co., 98 N. Y. 523; [Bridgen v. Osmun], 92 Hun (N. Y.), 580 [36 N. Y. Supp. 1025]; [Pressman v. Mooney, 5 App. Div. (N. Y.) 121], 39 N. Y. Supp. 44; [Lustig v. Railroad, 65 Hun (N. Y.), 547], 20 N. Y. Supp. 477; Railroad Co. v. Crudup, 63 Miss. 291; Cooley on Torts (2d Ed.), §§271, 272; Chicago v. Powers, 42 Ill. 169 [89 Am. Dec. 418]; Staal v. Railroad Co., 57 Mich. 239 [23 N. W. 795]; Augusta R. Co. v. Glover [92 Ga. 132], 18 S. E. 406; Railroad Co. v. Leverett, 48 Ark. 333 [3 S. W. 50, 3 Am. St. Rep. 230]; Barley v. Railroad Co., 4 Biss. 430 [Fed. Cas. No. 997]; Railroad Co. v. Lafferty, 57 Fed. 536; Haehl v. Railroad Co. [119 Mo. 325], 24 S. W. 737; Railroad Co. v. Dunden, 37 Kan. 1 [14 Pac. 501]; Opsahl v. Judd, 30 Minn. 126 [14 N. W. 575]; Cook v. Clay St. R. Co., 60 Cal. 604.” See, also, Ewen v. Railway Co., 38 Wis. 613; Johnson v. Railway Co., 64 Wis. 425 (25 N. W. 223); Thompson v. Johnston Bros. Co., 86 Wis. 576 (57 N. W. 298); Thoresen v. Railway Co., 94 Wis. 129 (68 N. W. 548); Birkett v. Ice Co., 110 N. Y. 504 (18 N. E. 108). We think the court did not err in admitting the testimony. The other assignments of error have been considered, but we think it unnecessary to discuss them. Judgment is affirmed. Brooke, C. J., and McAlvay, Kui-in, Stone, Ostrander, Bird, and Steere, JJ., concurred.
[ 33, 4, -2, -14, 21, 34, 64, -45, 13, 73, 59, 22, 42, -12, 8, -17, 4, -31, 17, 10, -26, -14, 6, 31, -4, -37, -20, -3, -59, 28, 0, 2, -30, -13, 40, 12, 23, 14, 25, 30, 8, 33, 20, 8, -35, -20, 13, 41, 55, 25, 29, -59, 65, -5, -17, -20, 25, 2, -27, -24, 5, -6, 29, -24, 17, 15, -19, -11, -32, 11, -41, 51, -8, -11, 25, -12, -27, -6, -60, -16, -26, 24, 5, -52, -29, 22, -19, 0, 32, 14, 15, 5, -52, 4, -21, -6, 3, -37, 1, -19, 24, -8, -28, -31, -32, -18, -98, -54, 19, 35, 9, 27, 14, -13, -20, -24, -1, 16, -3, -44, 2, -4, 16, 32, -37, -8, 7, -9, -11, -5, 7, 3, 1, -41, -6, -22, -14, -43, -21, -26, -46, -21, 81, -17, -5, 10, 0, 79, -20, -7, -22, 29, 0, -5, 22, -34, -17, -22, 2, 15, 47, 33, 39, -21, -39, 31, 5, -53, -57, -29, -39, 0, -8, -13, 48, 54, 30, -48, -51, -26, -60, -11, 39, -15, -45, 9, -12, 25, 24, 11, 14, -18, -12, -42, 13, -13, 10, -28, 59, -21, -7, -10, 9, -27, -62, -12, 32, 53, 35, 25, 7, 19, -46, 7, -49, 24, 14, -10, 23, 21, -91, 6, 27, -1, 5, -7, 10, 27, -22, 0, 9, -14, 27, -24, -10, 5, -1, -34, -11, 11, -15, -34, 4, -30, 59, 13, 28, -27, 2, 0, -25, 45, -9, 0, -5, -41, -8, -11, -60, -52, 15, 48, 27, -30, 50, -3, -46, 14, -8, 18, -12, -70, 40, 39, -40, -7, 28, 11, -25, -62, 40, 32, -14, 23, -33, -35, -36, 13, 27, 32, 29, -31, 6, 24, 21, 22, 46, -11, 20, -13, 24, -15, -33, -30, 16, 19, -2, -19, -36, -35, 0, 13, -25, 30, 45, -20, -21, 0, 28, -25, -17, -1, -34, -17, 29, 18, 71, -36, -25, 6, 12, 26, 50, -14, 1, -13, -9, 18, -48, 12, 28, 24, -10, -2, -23, 29, 9, 3, -47, -4, 5, -20, 73, -28, -11, -16, 24, -55, 46, 0, 31, -59, 9, -2, 15, -21, -16, 10, 8, 5, -1, -20, 29, -37, 15, -43, 70, 50, 23, 34, -28, 20, -18, -67, 27, 0, 32, -14, 23, 6, -44, -38, 2, 3, -34, 25, 3, 13, 16, 23, -27, -5, 16, -39, 13, -43, -41, 20, 10, 0, 12, 62, -1, 12, -3, -52, 10, -19, 20, 0, 20, -22, 35, -85, -18, -53, 22, -7, -1, -20, 12, 7, -21, -65, 4, -40, -21, 4, 27, -40, -52, 3, 19, -9, -7, -23, -20, -11, 26, -43, 6, 6, 12, -44, -2, 18, -4, -12, 20, -45, -13, -6, 16, -23, 18, 16, -12, -38, 35, 9, -17, -5, -43, 3, -12, 0, 33, 12, -20, -18, 14, 47, -20, -31, 8, -63, 6, 5, 21, -33, 30, 34, -9, -59, 3, 68, -43, -7, -29, 32, -33, 12, 0, -25, 25, 8, 24, -33, -9, 59, -18, 18, -28, 21, 15, 5, 1, -6, -5, -29, 51, -29, -12, 9, -42, 9, -23, 4, -20, -39, 63, -46, -42, -6, -26, 17, -67, -21, -31, -4, 17, 15, 59, 54, 1, -31, 0, 35, 6, 33, 63, 25, -23, 8, -17, -14, 29, -4, 2, -41, 49, -47, -4, 7, 46, 6, -9, 31, 12, 7, -35, 45, 0, -13, -17, 21, 0, 59, 2, 34, 1, 17, 7, -4, 18, -30, -1, 39, 2, 0, -69, -22, -21, 29, 16, -11, 10, -2, 41, -1, -12, -9, -25, 20, 39, 20, 29, -33, -41, -25, 10, -35, -25, 21, 51, -15, 8, -22, 22, 24, -47, 8, -43, 35, -5, 1, -37, 27, -29, -26, -30, 8, -64, -21, -13, -46, -16, 0, 21, -10, 25, -2, 47, -54, -21, -57, 13, 0, -8, -7, -11, 13, 22, 11, 1, -6, -7, 12, -10, -10, 27, 12, -33, -12, -35, 52, -1, -18, 17, -17, 19, 30, 25, -33, -9, -7, 4, 32, 21, 9, -29, 11, 26, -27, 56, -6, 8, 57, -11, 7, -6, 3, 27, 17, -25, 19, 49, 30, -38, -47, -33, -19, 31, 41, 11, -35, 44, 20, 11, -22, -37, 21, 49, 7, 6, -4, 8, -28, 5, -53, 95, -21, 12, 14, 0, 65, 63, 45, -24, -77, 34, -52, -20, 23, 33, 4, 1, -31, -11, -10, 17, -32, -25, 1, -10, 8, 53, -21, -46, 38, -20, 24, 46, 0, 4, 10, 35, 17, 14, -35, 11, 1, 23, -35, -44, -19, -15, -24, 46, 22, 7, 12, 13, -34, -8, 34, 8, 0, 27, 8, 17, 45, 20, -21, -30, -47, -13, -14, 23, 5, 51, 21, 0, 26, 9, 8, -7, 14, -33, 20, -9, -53, 17, 7, 39, -1, 32, 37, -39, -15, 14, 22, 4, -1, -40, -32, 3, 23, -37, 8, 21, 69, 13, -81, 38, 34, -6, -12, 28, -22, 18, 6, -41, -8, 74, -13, 2, -8, -35, 11, 9, 47, 27, -11, 40, -5, -44, 49, -12, 75, -5, 14, -17, 2, -42, -31, -21, -65, -56, 11, 11, -18, -44, 16, 12, 13, -12, 48, -31, -46, -10, 40, -37, 20, -54, -13, -11, -52, 50, 45, 29, 1, 25, 77, 0, -37, -4, -68, 34, 42, -33, -15, 47, -1, -2, -13, -16, 37, -43, -30, -6, 33, 16, 14, 0, -41, 18, -57, -7, -8, 10, -2, -71, -27, -12, 52, -40, -7, -13, 26, 0, -1, 35, -4, 15, -12, 20, 42, -3, 30, -25, 24, 6, -70, 29, 11, 5, -64, -32, -40, 11, -6, -6, 33, -11, -36, -10, -37, -44, 33, -15, 6, 18, 24, 8, 8, -36, 17, -32, -6, -14, 42, -4, 48, 2, -60, -11, -29, -30, -23, 40, -27, 4, 16, 29, -13, 65, 6, -9, 10, 23, -43, -24, 28, 0, -7, 6, -22, 12, 43, 14, 19, -17, 62, 8, 18, -35, -20, -64, 27, -40, -11, 17, 40, 0, 12, -2, 8, 5, 7, -25, -18, 22, 30, 7, 36, -42, 14, -26, -9, 58, 19, -2, -9 ]
R. B. Burns, J. Plaintiff filed suit against defendant on May 30, 1978, alleging negligence and breach of express and implied warranties as a result of an interior car fire which severely burned her three-year-old child on February 19, 1973. Defendant moved to dismiss plaintiffs individual cause of action under GCR 1963, 116.1(5), raising the statute of limitations as an affirmative defense. Plaintiff filed the affidavit of Colette Belanger, a qualified psychologist, wherein she stated: "12. On the basis of my examination of Mrs. Carver, on January 10, 1979, it is my professional opinion that Mrs. Joann Carver suffered from a severe depression reaction syndrome which has been characterized by classic signs, including primarily profound impairment of judgment and that this depression reaction was directly and causally connected to the fire episode of February 19, 1973. "13. It is my further opinion that Mrs. Carver’s impaired mental condition fully disabled her between February, 1973 and April, 1978 from either compre hending her attorney’s advise [sic] and certainly, from acting upon it in any rational way throughout this period of time.” GCR 116.3 provides: "Any defense or objection raised under this rule, whether in a responsive pleading or by motion, may be noticed for hearing by either party as if raised by motion. Affidavits or other evidence may be submitted by either party to support or oppose the grounds asserted in the pleading or motion * * GCR 116.4 provides: "Supporting and opposing affidavits shall be made on personal knowledge and shall set forth with particularity such facts as would be admissible as evidence to establish or deny the grounds stated in the pleading or motion.” In our opinion the affidavit of Colette Belanger was sufficient to oppose the defendant’s motion and submit the issue to a jury. Davidson v BakerVanderVeen Construction Co, 35 Mich App 293; 192 NW2d 312 (1971). Defendant raised, as a second ground for dismissal of plaintiffs cause of action, her failure to file answers to interrogatories pursuant to GCR 1963, 313.4. The record shows that plaintiff did answer the interrogatories of the defendant, albeit not as thoroughly as defendant would have preferred. As the case had not been set for pretrial and discovery had not been completed, in our opinion the trial judge abused his discretion by dismissing the case. As stated in Jack’s Factory Outlet v Pontiac State Bank, 95 Mich App 174, 179-180; 290 NW2d 114 (1980): " 'The authority of the circuit judge to take the most drastic step of dismissal of plaintiffs complaint with prejudice is clear. However, we believe that such measures should be exercised cautiously. This is not a case where the failure to respond to discovery requests extends over substantial periods. E.g., Krim v Osborne, 20 Mich App 237; 173 NW2d 737 (1969). Nor is it a case in which the failure to provide discovery is in violation of a direct order of the trial court. E.g., Humphrey v Adams, 69 Mich App 577; 245 NW2d 167 (1976). In this case, in view of the relatively short time that elapsed between the failure to appear and the motion to dismiss, and the ambiguous showing of willfulness on the part of the plaintiffs agent, we conclude that the trial judge should have chosen less drastic measures to compel discovery.’ (Emphasis added.) MacArthur Patton Christian Ass’n v Farm Bureau Ins Group, 403 Mich 474, 477; 270 NW2d 101 (1978).” Reversed and remanded for trial.
[ 0, 6, 8, 71, 91, 29, 39, -6, -6, 34, 2, -11, 23, -52, 6, -8, 1, 38, -18, -66, -45, 5, 15, -19, 6, -68, -14, -27, -12, 25, 7, -29, -46, -33, -26, -43, -9, -2, -27, 72, 18, -2, 46, -32, -7, -10, 8, 18, -1, 44, 48, 14, 16, -3, -22, -19, 38, 31, -1, -12, 1, -23, 1, -13, -23, 53, -4, 46, -28, 23, 6, -15, -4, -4, 0, -52, 2, -6, 37, 18, -6, -8, 11, 3, 38, -56, -23, 8, -18, -16, 0, -12, -3, 20, -45, 5, -38, 3, 77, 7, -37, 53, 51, 34, -35, 24, -46, -58, 6, -12, -33, 6, -1, -24, -8, -26, 47, 46, -38, 11, -6, -41, 22, -40, 17, 32, -20, 28, 29, 21, -3, 31, 55, 1, 58, -22, 35, -35, 29, -18, -64, 46, 4, 18, -26, 16, -20, -19, -45, -4, -9, 50, -3, -38, 2, -17, 43, -43, 1, -20, 43, -33, -12, 7, -30, -51, 11, 53, 19, -36, 31, 27, 5, -46, -13, 5, 52, -2, -11, 11, 33, 0, 20, 22, 44, -52, -69, 8, 47, 15, 19, -23, -30, 7, 45, 26, -7, 45, 29, -35, 31, 7, 3, -6, 48, 24, 0, -21, 46, 38, -17, 63, 0, -64, -32, -51, -7, 18, -15, 6, -3, -34, 8, 25, -48, 8, -15, 12, 38, 16, -2, -12, -21, -35, -38, 5, 50, -31, 79, 21, 2, 21, 69, 17, -49, 11, -72, -31, 10, -23, -5, 24, 28, 9, -19, -31, 16, 16, -22, 25, 12, -25, -23, -24, 42, 19, 26, 66, 13, 0, 5, 19, 34, 33, -34, -24, -14, 14, -23, 23, 13, -2, -23, -7, -33, 10, 33, 19, -14, 4, 76, -7, -8, -72, 29, 21, -24, 0, 15, 19, 1, -23, -2, -26, -75, -61, -15, 18, -17, 1, 22, 7, 36, 13, 15, -42, -17, 5, -7, -52, 43, 31, -35, 39, -28, -51, -25, 19, -16, 12, -6, 11, -18, 24, 18, -19, -15, -5, 22, 7, -25, 54, -46, 11, -34, 39, 39, -3, 22, 11, -9, -55, 39, -28, 2, -34, 6, -3, -11, -3, 13, -7, 39, 28, 12, 21, 43, -78, -20, 38, -59, -13, -9, -33, 23, -87, -15, 1, -3, 53, -32, -6, 30, 27, -27, 5, -54, -43, -5, -16, -27, 2, 27, -29, -42, 11, -41, -7, 12, 32, 1, 22, 19, -11, -38, -2, -49, -9, -3, 6, 52, 47, 8, 16, -16, -39, 35, 35, 32, -5, -9, -2, 46, 48, -4, -53, 19, -4, 31, -26, -15, 28, 7, -8, 47, 5, -25, 5, 55, 24, -42, -45, -2, -22, 7, 31, -15, 42, 62, -8, -40, 19, -7, 9, -33, 34, 4, 12, 6, -26, -31, -27, 4, 22, 29, 2, -3, -29, -8, -1, 17, -32, 12, -32, -57, -12, 19, 5, -41, 25, 6, 39, 16, -32, -37, 5, 5, -42, 6, -29, 67, -36, -39, 5, -63, -9, -54, -2, -44, -52, -15, -30, -6, -28, 83, -11, 29, 14, 9, 83, -28, 11, 37, 12, -19, -5, 66, -15, -16, 66, -28, 42, -16, 21, -37, -59, -2, 0, -30, 14, 41, 0, 46, -8, -26, 77, -13, 29, 26, -18, 18, 77, 18, -16, -12, -7, -22, -2, 4, 57, 24, -50, 27, 28, -28, 20, 34, -37, -18, -20, -3, 32, 72, -7, -4, 2, -14, -29, 35, -3, -44, -7, -17, -13, -19, 33, -27, 25, -68, -11, 31, -8, -23, -7, -45, -29, 60, -35, -18, -21, -31, -5, -5, -33, -5, -4, -28, -40, 37, -17, 21, 6, -19, -6, -7, 21, 31, -60, 66, -73, 47, -31, -95, -41, -11, 19, -12, -18, -12, 49, 5, -32, -10, -15, -62, 40, 5, -33, 10, -25, 31, -14, -9, 2, 47, -18, 9, 0, -40, -35, -12, 60, -5, 61, -9, 0, 40, 14, -6, -30, -8, 0, 41, 1, -14, -11, 41, -14, -28, -12, 11, -20, 22, -36, 0, 52, -2, 9, -52, 67, -11, 15, -10, 61, 0, -19, -34, 20, 7, -6, -1, -21, 30, -42, 27, 10, 9, 39, -1, 1, -32, -7, 15, 15, -16, 7, -46, 42, 18, -18, -74, -2, -1, 10, -6, 7, 4, -18, -1, 22, -4, 38, 53, -16, 3, -17, -16, -48, -6, -44, -12, -42, -21, 1, 10, -4, 45, -5, -28, -45, 4, -7, -66, 0, -12, 34, 35, 1, 59, -5, -9, -15, 17, 4, 0, -31, 18, -10, 3, -24, 3, -31, -17, 35, 35, 26, 23, -29, 13, 17, 36, -17, -20, -33, -30, -11, 8, 43, 13, -18, -38, 40, 12, -38, -90, 27, -2, 6, 31, -9, 45, -30, -6, 18, -16, -73, 24, -7, -3, 16, 21, -30, -40, 35, 0, 15, 6, -45, -4, 20, 12, 29, -5, 58, 15, 21, -52, 9, -13, 8, 5, -10, -6, -41, -40, -40, 6, 21, 1, 9, 22, 15, -76, 27, 47, -59, 10, -2, 14, -42, -9, -45, 21, 76, -11, 2, 6, -18, 18, -3, -22, 49, -30, 14, 41, -33, 29, -34, 2, -32, 38, 3, -25, 24, -19, -36, -32, 20, -11, -6, 6, 23, -35, -65, 0, 11, -45, -22, 37, -46, -18, 4, -36, 22, 21, -6, -4, -30, -20, -11, 55, -6, 0, 36, -5, -8, 46, -3, -22, 3, -25, -5, 24, -10, -34, 6, -31, 38, -9, -25, -57, 22, -5, 8, 48, 10, -20, -15, 27, 2, 23, -1, 44, 10, 19, 37, -12, 19, -21, -16, 6, 2, 48, -29, -10, -3, 15, 39, -39, 23, 28, -16, 21, 1, 17, 5, -16, -65, -22, -7, 18, -9, 6, 33, 14, -36, -4, -19, -47, 12, 11, -40, 28, 23, -6, 0, 15, -27, 1, 21, -30, 17, -25, 46, 48, -33, 50, 24, 4, 15, 11, -48, -34, 7, -34, 19, -12, -7, -44, 41, -19, -15, -9, 0, 19, -45, -35, 26, -29, -19, 29, 24, -28, 19, -2, 2, 6, -19, -11, 38, -72, 0, 8, 19, 52, -12, -12, 9, 12, 6, -43, 16, 12, -10, 21, -9, -13, -31, 21, -60, 36, 17, 30, 26 ]
Per Curiam. Defendant appeals as of right from the trial court’s dismissal of the defendant’s counterclaim in a proceeding for confirmation of an arbitration award entered in favor of the plaintiff. The plaintiff and defendant entered into two contracts. The first was a written contract by which the plaintiff was appointed as exclusive sales agent on behalf of the defendant. That agreement provided that, in the event of a dispute arising out of the contract, the parties agreed to be bound by the decision of an arbitration panel. A dispute did arise in which the plaintiff alleged that it was owed $8,426.90 by the defendant. That matter was submitted to an arbitration panel which found in favor of the plaintiff in that amount. The defendant does not contest the propriety of that award. The second agreement entered into by the parties involved an oral contract by which the plaintiff agreed to draft a procedures manual for the defendant’s manufacturing process. The defendant contends that the plaintiff negligently performed its duties pursuant to that contract and that the plaintiff’s negligence caused the defendant to suffer damages in the amount of $10,644. The oral contract did not provide for arbitration. Neither party contends that these two contracts were in any way interrelated. At the arbitration hearing held pursuant to the dispute which arose out of the written sales agency contract, the defendant sought to have the dispute resolved which arose out of the oral contract. The arbitrators declined to rule on that dispute, finding that it did not arise out of the sales agency contract. The defendant does not contest the propriety of the arbitrators’ decision in that regard. After the arbitration award had been made, the plaintiff filed a motion to confirm the award in Macomb County Circuit Court, pursuant to GCR 1963, 769. The defendant filed a counterclaim based upon the manufacturing contract. On July 31, 1980, the court entered an order confirming the arbitration award and dismissing the defendant’s counterclaim with prejudice. Before dealing with the merits of this appeal, we note that there appears to be a discrepancy in the record which must be resolved. A trial court opinion entered on May 13, 1980, indicates that the trial court intended to confirm the award and that the counterclaim would remain in dispute. The record contains an order and judgment entered on June 9, 1980, confirming the arbitration award and acknowledging that the counterclaim was still in dispute. Subsequently, on July 31, 1980, a judgment was entered which again ordered defendant to pay plaintiff the arbitration award to which it was entitled. In addition, the July 31 judgment dismissed the counterclaim with prejudice. Our review of the record and briefs leads us to believe that a mistake has been made and that the dismissal of the counterclaim was meant to be without prejudice. It is a puzzle on one hand as to why the judgment signed by the trial court on July 30, 1980, which dismisses with prejudice the action identified as a counterclaim, was approved as to form by counsel for defendant. On the other hand, plaintiff’s brief reasons that the trial court noted defendant was in no way prejudiced in its right to file a suit against plaintiff but refused to entertain the "counterclaim” for the reason that it was not a counterclaim but a new suit. The plaintiff acknowledges that the trial court did not err in dismissing the counterclaim without prejudice. In this case, the trial court, acting within its discretion, did not err in either confirming the arbitration award or dismissing the so-called "counterclaim”. However, since the defendant did not have a judicial determination made on the merits of the action dismissed, rather than remanding the matter to the trial court, in the interests of judicial economy, we rule that the dismissal was without prejudice. Affirmed as modified.
[ -65, -37, -56, 13, -2, -11, 9, -31, 5, 19, 11, -4, 15, -24, -3, -29, -10, -18, -11, -14, -24, -38, -6, 13, -23, 5, -9, -7, 14, 31, -20, 17, -18, 16, -65, -30, 40, 0, -8, -10, 47, -47, 9, -11, -49, -6, 32, -42, 89, -27, 8, 53, -19, 0, -45, 0, 12, -9, 7, 0, -8, 31, -9, -14, 12, -23, 49, 9, 19, 14, -32, 25, 37, 20, -7, -37, -17, 3, -16, 21, 22, -1, 39, 4, 14, 27, 27, 6, 12, 11, -14, 48, 1, -14, -16, 21, 35, -12, 23, 25, -23, 12, 16, 52, 8, -12, 11, -36, -20, 32, 34, 30, -2, -31, -20, 26, 14, 17, 1, 3, 16, 14, 36, 32, 0, 45, 1, -22, -15, 22, 11, 13, 0, 46, 31, -12, 0, 6, 18, 27, 39, -17, -37, -4, 53, 0, -3, -29, -14, -42, -35, 29, -12, 47, 7, 13, 26, -56, 26, -52, 57, 4, -12, 38, -17, -49, 11, 35, 47, 15, 1, -17, 27, -54, -4, -4, 8, -3, -20, 22, -32, -7, -22, -28, 21, -27, -35, -6, 15, -8, -19, 12, -40, 30, -17, 20, 15, 47, -18, 8, 16, -42, 10, 8, -4, 21, 47, -44, -41, 19, -27, -18, -17, -76, -2, 0, 44, 28, -2, 26, 14, -9, -43, 44, -18, -57, 5, -30, 14, -24, 0, 41, 18, 39, -3, 15, 37, -12, 39, -8, -13, 16, -16, -3, -20, -4, -46, 37, -21, 2, -16, 1, 0, 8, 17, -73, -50, 52, -32, -4, -1, 35, -51, 8, -36, 14, -18, 11, -25, -37, -64, -1, 12, 31, 1, -72, -26, 6, 14, -3, -24, 26, -63, -37, -23, 48, 26, 18, 10, 43, 15, -6, -18, -40, 31, 33, 3, -46, 9, 3, -63, -15, 20, -26, 22, 2, -41, -8, -32, 11, -30, 13, 24, -20, 30, 6, -32, -43, 32, -74, 6, 50, 4, -19, -22, -33, 8, -13, -7, -11, -18, 35, -9, -11, 33, -41, 14, 14, -6, 27, 35, 59, 7, 33, -14, 31, 28, -56, 49, 11, -33, -43, 3, 9, 40, 13, 35, -17, -19, 39, -12, 23, -1, -63, 19, 5, 0, 14, -13, 48, -35, 24, -1, -35, -81, -36, -4, -9, 22, 63, 22, -8, 3, -46, 30, -19, -25, 42, 5, -4, -68, -35, 11, 21, -21, 42, 16, -13, -13, -13, 61, 2, -20, -27, -18, -8, 21, -24, -64, 11, 15, -34, -23, 15, 23, -19, 42, 56, 18, -41, 45, 3, -7, -2, -12, -32, 26, 2, -33, -5, -7, 77, -13, -55, 12, -19, -5, -21, 9, 34, -32, 18, -36, -60, 31, 4, 5, 39, -13, 32, 32, -19, -4, 42, -7, 19, -45, -20, 20, -28, -8, -18, -4, -23, 6, -35, 11, 24, -15, -16, -47, 19, -1, 9, -10, -8, -25, -17, -36, 12, 11, 14, -19, -14, -20, 10, 22, 30, 5, -27, -36, -43, -20, 15, -46, -24, 1, 2, -19, 8, -38, -25, 2, -10, 46, -24, -12, -48, -3, -8, -29, 10, 0, -17, 34, -14, 32, 44, -13, 38, -20, -33, -28, -13, 17, -5, -16, -8, 34, 25, 22, 37, 25, -73, 27, 30, -42, -30, -2, 0, -19, 45, -15, 40, -19, 12, -26, 4, 55, 25, 11, -43, 42, -41, -10, 45, 35, -18, 31, -32, -33, 17, -8, 28, 43, 18, -13, -40, 69, 70, 0, 10, 20, 2, -10, -16, -18, -8, -41, -27, -32, -10, -1, -42, -26, -4, 54, 38, 23, 16, -26, -20, 9, -58, 5, -1, -19, -25, 40, 11, 35, 4, -74, -11, -14, -6, -13, 43, 19, -8, 17, 1, -3, -42, -2, -15, 3, 26, 30, 68, 17, 48, 21, -17, -3, 71, 6, -27, -28, 29, 42, -42, 28, -7, -46, -1, 0, 19, -37, -63, 0, 3, 16, -35, -4, -64, 6, -35, -12, 15, 2, 54, 14, -38, -18, -1, 10, -29, -23, -33, 6, -32, -21, -23, -15, 24, 20, 35, 12, 37, 29, 11, 27, 12, 29, 33, 5, 46, -5, 14, 27, -20, 14, -20, -15, 21, 16, -21, 23, -6, -2, 36, -8, -62, 19, -25, 25, 32, -47, -38, 5, -4, -29, 35, -51, 11, -27, -8, 37, 25, 8, -16, -20, 22, 13, 50, -10, 21, -21, -5, -11, -69, 2, -30, 0, 4, 42, 3, 6, -9, 14, 60, 29, 28, -12, 11, 7, -47, -68, 5, 4, 19, 20, 12, 3, 6, 38, 61, -7, -18, -10, -17, 3, 37, 23, 16, 9, -3, -5, 22, -28, 16, -44, -13, -6, 14, -5, -18, 21, -5, -38, -7, 52, -6, 9, -35, 4, 6, -38, -56, 43, -5, -12, 5, -38, -41, 26, -50, -35, 30, -4, -49, 15, -10, 0, -25, 34, 48, 1, -32, 33, 27, 17, 8, -21, -9, 7, -8, 49, -32, 16, -28, 22, -43, 45, 2, -50, 3, 0, -12, -5, -2, -63, 8, -19, -9, 29, -28, -36, 25, 42, -18, -21, 40, -6, 23, -4, -33, -21, -27, 23, -19, -23, 26, 30, 13, -30, -1, 8, -40, -14, -57, 8, 37, 4, -6, -8, 0, 4, -1, 25, 48, -57, -35, 25, -17, -39, -12, 1, -14, 28, 3, -15, 17, -18, 7, -22, 18, 40, -28, -11, -7, 0, -3, -4, -15, -8, -9, -30, 20, 47, 21, -8, -15, -14, -28, 28, -20, 23, -6, 8, 41, 29, -20, 1, 19, -11, -9, -19, 35, 43, -19, -35, 22, 9, 29, 20, 17, 43, -2, 6, -19, -46, -85, -9, 8, 1, 31, -27, 3, 17, -62, 42, 28, 33, 10, -16, -32, -2, 12, -21, -27, 55, -15, -43, -42, -44, -14, 1, 58, -6, 8, 23, 37, -88, -40, 4, -19, -22, -23, 30, 8, 54, 5, 48, 46, 26, 34, 10, 6, 11, -14, -49, -39, 3, -71, 43, 26, -11, -14, 13, -22, -11, 31, 8, -2, -9, -2, -8, -7, 32, 8, 30, -26, 9, -17, 59, -16, 16, 35, 0, 12, 11, -17, -4, -7, 38, -12, 11, 7, -5, 37, 36, 4, 21, 67, -39, -17, -8, -34, 29, -8, 3, -35 ]
Cynar, P.J. Defendant was charged with first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2). On April 20, 1979, a Detroit Recorder’s Court jury found defendant guilty as charged. On July 21, 1979, defendant was sentenced to five years probation and assessed $1,000 in costs. Defendant appeals as of right. There is no merit to defendant’s argument that his conviction must be reversed because of the fact that during the trial a police officer testified that complainant identified defendant in a corporeal lineup. It is true that this testimony was offered to prove the truth of the matter asserted and is therefore hearsay. Although MRE 801(d)(1) permits a witness to testify as to his or her prior identification, a third party may not testify about another person’s out-of-court identification. People v Washington, 84 Mich App 750; 270 NW2d 511 (1978), People v Sanford, 402 Mich 460; 265 NW2d 1 (1978). However, the error is not reversible error for two reasons. First, no objection was presented to the lower court and defendant did not request a curative instruction. Absent a proper objection, the issue is not properly preserved for appellate review. People v Moss, 397 Mich 69; 243 NW2d 254 (1976). Second, assuming that an objection had been made, the erroneous admission would be harmless error because the same fact was shown by other competent testimony. People v Hoerl, 88 Mich App 693; 278 NW2d 721 (1979). In the instant case, the complainant positively identified defendant as the man who forced her to have sexual relations and also testified that she had previously identified the defendant in a corporeal lineup. Defendant’s conviction may not, therefore, be reversed by reason of the testimony in question. GCR 1963, 529.1. Defendant next claims that reversible error occurred when a prosecution witness was allowed to testify that defendant had attempted to negotiate an agreement with the complainant whereby she would drop the charges in exchange for money. Furthermore, defendant contends that the prosecutor impermissibly vouched for the credibility of the witness in question by eliciting the fact that the witness had been granted immunity from prosecution in any subsequent trial on charges of obstructing justice arising from the attempted deal should such charges be brought against the defendant. There is no merit to the argument that the prosecutor impermissibly vouched for the credibil-’ ity of the witness. Such an error may occur where a prosecutor expresses his personal opinion as to the credibility of a witness, People v Erb, 48 Mich App 622, 631-633; 211 NW2d 51 (1973), but nothing of the kind occurred in the instant case. Defendant’s theory is that, by informing the jury that the witness was granted immunity in exchange for his testimony, the prosecution expressed its belief in the veracity of the witness, the supposition being that if the witness was not telling the truth immunity would not have been granted. In fact, the prosecutor is ordinarily re quired to disclose, at a defendant’s request, the fact that a witness is testifying under a grant of immunity since such a grant may influence him to testify falsely and the jury must be aware of such a factor when judging the credibility of the witness. People v Atkins, 397 Mich 163, 173-174; 243 NW2d 292 (1976). Defendant’s argument that testimony as to his attempts to induce the complainant to drop the charges was erroneously admitted is also without merit. Defendant’s analysis of the admissibility of such testimony as evidence of similar acts is inapplicable because the evidence was not admitted as evidence of similar acts. Instead, it was admitted under the long-standing case-law doctrine that evidence of a defendant’s subsequent efforts to influence or coerce the witnesses against him is admissible where such activity demonstrates a consciousness of guilt on the part of the defendant. People v Hooper, 50 Mich App 186, 198-199; 212 NW2d 786 (1973). Defendant next argues that he was denied a fair trial and was denied the right to confront the witnesses against him by reason of the trial court’s denial of his request that he be provided with a transcript of his first trial in the instant case. On April 2, 1978, the first trial held on this matter was declared a mistrial. The trial was rescheduled to start the following day, April 3, 1978. On the fourth day of the second trial, counsel for codefendant made a motion for transcript, which motion was denied. This claim is without merit because defendant never requested the transcript. An examination of the record reveals that it was codefendant Jones who made the request, which request was properly denied by the trial court because it was untimely, coming as it did near the end of the second trial. People v Oliver, 29 Mich App 402, 404; 185 NW2d 433 (1971). Codefendant Jones made the request because he believed that one of the witnesses gave testimony in the second trial inconsistent with the testimony he had given in the first trial but in fact the testimony was not inconsistent and, even if it had been, it related to a matter which was of no significance to the case. We disagree with the prosecution’s argument that the testimony of the witnesses at the second trial was, in itself, an adequate substitute for a transcript. We find, however, that defendant was not entitled to even a reasonable substitute such as the one available in Britt v North Carolina, 404 US 226; 92 S Ct 431; 30 L Ed 2d 400 (1971) (where the court reporter from the first trial was available and prepared to read back testimony from the first trial in the event that inconsistent testimony was given at the second trial). Defendant failed to object to the trial court’s handling of his codefendant’s request. Such a failure to object precludes appellate review absent manifest injustice. People v Stinson, 88 Mich App 672, 674; 278 NW2d 715 (1979). No injustice of any kind is apparent here, and so, even if error were committed, the error would be harmless. GCR 1963, 529.1. Defendant’s final two claims of error arise from the unusual termination of defendant’s previous trial in the instant case. That trial was held between March 22 and 30, 1979. The jury began deliberations on Friday, March 30, 1979. That afternoon, the judge received a note from the jury which stated: "Do we have to reach a verdict on both defendants today?” The jury was called back in. The foreman gave the verdict sheet and the evidence involved in the case to the clerk of the court. On the following Monday, only 11 jurors were available because of a death in the family of one juror. The record indicates that both defendants decided to exercise their rights to have a jury of 12 decide their case. A mistrial was declared with the consent of both defendants. After the jury was discharged, the foreman of the jury handed the verdict forms to the court clerk, who gave the forms to the prosecutor. An "X” was marked on one of the forms, indicating a verdict of not guilty as to defendant Mock. The prosecution admits that this fact was not disclosed immediately upon its discovery, but the information eventually came to the attention of the defense and the trial court. After learning of this indication of a not guilty verdict, the trial court recalled the jurors in the first trial and polled them. One juror stated that she had never voted that defendant Mock was not guilty and that it was her opinion at all times during deliberations that defendant was guilty. The first of defendant’s two claims of error arising from this situation is that the failure by the prosecution to disclose the fact that the jury form indicated a verdict of not guilty as to defendant Mock constituted a denial of due process. Defendant’s argument is based on the prosecutor’s duty to disclose evidence favorable to a defendant. That duty is not precisely applicable to the instant case because the information in question was not evidence. We do believe, however, that the prosecution should have disclosed the information at the first opportunity. The incident is not an adequate ground for reversal, however, because the prosecutor was correct in deciding that the form did not constitute a verdict and because defendant was in fact afforded every protection which he could have been given if the prosecution had disclosed the information immediately. The prosecutor did not receive the information in question until after the jury had been discharged. At the time the prosecutor discovered the mark on the form, the jury could have been reassembled and polled to determine whether they had actually reached a verdict. This was in fact done when the information was disclosed. One of the jurors testified at the second trial and again at a hearing on a motion for new trial that she had never decided that defendant was not guilty and that it was her opinion at all times during deliberations that defendant was guilty. It appears that the trial judge did what he could to verify what had happened and acted accordingly. It is therefore apparent that a verdict was not reached by the first jury. In United States v Taylor, 507 F2d 166, 168 (CA 5, 1975), it was held that a jury does not reach a valid verdict until deliberations are over, the result is announced in open court, and no dissent is registered by any of the jurors. Taylor states that votes taken in the jury room prior to the announcement in open court are merely preliminary. See GCR 1963, 512.2 and Wayne County Prosecuting Attorney v Detroit Recorder’s Court Judge, 64 Mich App 408; 235 NW2d 799 (1975), which holds that a juror may recant a previous assent to a verdict at any time prior to his express in-court assent at the polling. No verdict having been reached and the jury having been properly discharged before the mark on the form was discovered, the only alternative was to proceed with a new trial. Defendant’s second claim of error arising out of the termination of his first trial is that, by reason of the trial court’s declaration of a mistrial and failure to ascertain whether a verdict had been reached, defendant was twice placed in jeopardy, contrary to the Fifth and Fourteenth Amendments of the United States Constitution. This argument fails insofar as it is based on the premise that a valid verdict of acquittal had been reached by the jury prior to the court’s declaration of a mistrial because, as noted above, this premise is not correct. As to defendant’s claim of a violation of the Double Jeopardy Clause by the fact that the mistrial was declared without manifest necessity, we find that the declaration of a mistrial was a proper exercise of discretion. It is not disputed that the juror whose mother had died was upset and unable to continue with jury service. The defendant demanded a twelve-person jury, therefore a mistrial was appropriate by reason of manifest necessity. In addition, the instant case is one where the defendant consented to the declaration of a mistrial. Where a defendant consents, it is not necessary that there be manifest necessity in order to justify a mistrial so as to preclude the attachment of double jeopardy. People v Belen Johnson, 62 Mich App 63; 233 NW2d 188 (1975). Defendant’s argument that his consent was uninformed and thus involuntary is without merit because the information which he claimed to lack was in fact incorrect. Furthermore, defendant’s decision cannot be attributed to prosecutorial overreaching because the mistrial was declared prior to the prosecutor’s receipt of the verdict forms. Affirmed.
[ 13, -53, 0, -4, 12, -48, -21, -25, -60, 29, 24, -18, 33, 20, -16, -4, 34, -10, 17, -85, 36, -52, -40, 45, -27, -14, 35, 10, -3, -22, 1, -21, 29, -24, 19, -34, 6, 28, 23, 55, 48, -10, -25, -52, -88, 12, 16, 21, -5, -21, 34, -5, -9, 45, -46, 4, 23, -6, 29, -8, -26, 72, -20, -22, -40, -27, -31, 35, -25, 2, 3, -8, 0, -43, -23, 4, -69, 6, 31, 17, -26, -45, 40, 28, 68, 13, 34, -31, 2, -43, 33, -5, 3, -33, -15, -23, 19, -8, 11, -73, -6, 28, -5, 28, 7, 30, -73, 36, 13, 4, 9, -55, 18, -35, -20, -7, 14, -7, 9, -41, 25, 9, 53, 39, 10, -30, 58, -55, -10, -12, 23, -7, 0, -31, -9, 10, 22, 24, 23, 27, 49, -2, -13, 9, 26, -19, -23, -1, 75, -12, -30, -4, 33, -7, -18, -6, -8, -54, -14, 22, 0, 5, -48, 21, 2, -23, 6, -1, 7, -29, 17, -18, 38, -4, -23, 2, -12, -23, -25, -14, -54, 25, 1, -3, 9, -44, 24, -38, -36, 10, -2, 23, 5, 16, 67, 16, -32, 65, 45, 0, 7, -41, -26, 23, -26, -23, -18, -38, 18, 42, -52, -36, -32, -20, 13, -75, 59, 20, 14, 27, -20, -55, 25, 3, -34, -16, 4, 41, 15, 42, 23, 31, 9, -32, -53, -17, 34, 46, 64, 1, 39, -22, 27, -32, -23, -11, 10, -10, -30, -21, 50, -47, -1, -42, -81, 1, 28, -9, -55, 41, -18, 22, -15, 14, -27, 29, 10, 32, -19, -37, -54, -15, 1, 14, -19, -10, -49, -3, 0, 33, -27, -5, 27, 24, -7, -35, -52, 43, 28, 50, 72, 12, -67, -32, 10, 26, 16, -6, -84, 4, 22, 6, 8, -31, -4, -28, 39, 27, 3, 25, 21, -24, 21, 60, 42, 22, -16, -21, 75, -30, -46, -14, -12, -35, -6, -23, 24, -8, -32, -43, -50, 28, -18, 43, 55, 4, 5, 0, -13, -1, 2, -17, -35, -16, 11, 43, 42, 12, -29, -22, -10, -36, 11, -15, -7, -14, -25, -35, 36, 9, 21, 20, -37, 1, 3, 70, -32, 50, 22, 99, -6, -58, -32, -4, -5, -16, 24, -80, -21, 13, -19, 22, -17, -26, -26, -31, -19, -38, -31, 0, 0, 22, 15, -18, -9, 11, 0, 0, 8, 10, 20, 20, 77, 36, -14, -46, -3, -9, -15, -1, 11, 71, 9, 15, 2, -70, 26, -32, 47, -2, 40, -1, 9, -11, 62, 2, 9, 40, 84, -1, -31, 6, 15, -62, 42, 15, -78, -22, 3, -6, 4, 11, -72, -24, -12, 18, 21, 22, 8, 33, 41, 61, 41, -37, 34, 52, 13, 27, -13, -10, 14, -62, 12, -41, 0, -92, 9, -19, -45, 41, 20, -19, -21, 53, -37, -2, -1, -30, -18, -29, 48, 30, 30, -35, -2, 4, 28, -32, 10, -13, -18, -14, -27, 82, -3, 4, -21, -13, -37, -13, -44, 1, -9, 25, -1, -1, 30, -21, 8, -8, -35, 56, -4, 26, -33, -24, -22, -31, 32, 58, -24, 19, 50, 14, 1, 52, -46, -45, -3, 56, 75, -12, -1, -3, 57, 9, -37, -27, -12, 2, -22, 39, 2, -24, 27, -1, 20, 8, 12, 26, 11, 12, 28, -5, -27, 4, 62, 14, -4, -4, -19, 7, 73, 42, 28, 7, -1, -60, 64, 0, 14, 12, -27, 20, -18, 1, 31, 15, -9, -1, -20, 44, 52, -24, -57, 14, 6, 3, 59, -20, -38, 68, 49, -22, -32, -28, -40, -51, 5, 36, 53, -22, -57, 17, 64, 0, 30, 13, -21, -57, 61, 21, -17, -8, 2, -9, -38, -13, -17, 43, -13, 14, -5, -8, 5, -51, -42, -18, -11, -16, -29, -25, -69, -3, 5, 12, -5, 7, -37, 13, 0, 13, 11, 8, 35, -9, 21, 3, 44, -44, -30, 58, 2, -35, 4, -16, -38, 27, 18, 25, -17, 19, -48, -31, 6, 60, -5, -42, 48, -48, -41, -51, 6, -51, -8, 37, 0, -21, -4, -24, -17, 6, 3, -43, 4, -17, -50, 38, -8, -15, -30, -2, -18, 24, 5, -9, 29, -15, -20, 28, -27, 10, 21, -11, -51, -40, 32, -9, -32, 0, 32, 103, -24, -25, 19, -1, -61, -10, -41, 6, -31, 32, 47, 23, 6, -49, 4, -3, 52, -27, 36, -9, 32, -7, 0, 28, -9, 46, -4, 41, 0, 19, -32, -51, -41, -43, 31, -42, 48, 0, -2, 19, -6, 53, -4, 48, 44, -9, -59, -19, -13, -11, -7, -48, -21, 35, -5, 6, 17, -10, -68, -47, 67, 36, 1, 52, 31, -5, 36, 25, 36, 41, -70, -1, -31, -17, 6, -60, -21, -16, 7, -16, -21, -5, 12, 12, -24, -40, 0, 28, -41, -4, -25, -53, -3, -5, 19, 27, 20, 19, 5, -13, -24, -16, 9, -30, -3, -11, 26, -12, -2, 16, -12, -31, -43, 10, 36, -71, 20, -28, -31, 12, 20, 27, -14, 20, 0, -9, -24, -27, -9, -4, 16, 14, 50, 30, -10, -3, 60, -33, 37, 12, -8, 12, -18, 14, -2, -22, 36, 0, 11, 3, -55, -5, 7, -4, 35, -41, 12, -94, -15, 9, -34, 52, -13, 13, 11, -42, 6, 29, 43, -21, 14, 26, 4, -31, 6, 0, -26, -25, 36, 78, 27, 15, -30, -22, 0, 40, -4, -28, 31, 2, -55, -3, 24, -11, 3, -1, -47, 18, -8, -23, 17, 29, 63, -14, -29, -9, 19, -6, 12, 24, -16, 3, -33, -33, 3, 11, -63, 12, -8, 33, -18, -2, 18, -7, 60, -25, 18, -31, -35, 33, -35, 8, -28, 11, -67, 98, -38, 19, -16, 11, 31, 44, 18, -27, 11, -20, -38, 2, 55, 80, -33, 8, -4, 27, -16, 40, 4, 95, 34, -12, -24, -29, -60, -30, 18, 7, -25, 1, -4, -40, -15, 34, 27, -42, 18, 9, 23, -9, -6, -3, -7, -3, -31, -25, 3, -43, 2, -13, -61, 67, -11, 7, -11, -22, 16, -19, -14, -34, 28, 24, 29, 7, -23, 1, 22, 23, -42, 48, -1, 52, 39, 36 ]
J. L. Banks, J. Plaintiffs were injured in a traffic accident at an intersection in the City of Detroit on February 16, 1977. A complaint was filed in the Wayne County Circuit Court alleging negligence on the part of Debra Flower, driver of the automobile which struck the plaintiffs’ car, and Sonja Williams, owner of the same car. Defendants’ answer averred the affirmative defense that there was no sign or signal at the intersection where the accident occurred which required defendant Flower to stop. On December 15, 1978, attorneys for both plaintiffs and defendants stipulated to add the City of Detroit as a party defendant pursuant to GCR 1963, 206.1. The parties apparently sought indemnification for defendants Flower and Williams and the addition of a principal tortfeasor defendant for failure to maintain traffic signs at a controlled intersection. The trial court signed an order adding the City of Detroit as a defendant on December 15, 1978. Plaintiffs filed a second amended complaint on June 11, 1979, adding the City of Detroit as a defendant. On July 3, 1979, the city moved for accelerated judgment pursuant to GCR 1963, 116.1(5), alleging that the two-year statute of limitations in MCL 691.1411(2); MSA 3.996(111X2) had run. The trial court granted the defendant city’s motion. At issue is whether the order adding the defen dant City of Detroit as a party defendant, dated December 15, 1978, tolled the statute of limitations. This Court has faced nearly identical problems in several recent cases. In Charpentier v Young, 83 Mich App 145; 268 NW2d 322 (1978), rev’d 403 Mich 851 (1978), the plaintiffs were seriously injured in an automobile accident when a car driven by defendant Young, being chased by the police, struck their automobile. Plaintiffs sought to add as defendants owners of several taverns where defendant Young had been drinking prior to the accident. The trial court granted the tavern owners’ motion for accelerated judgment because plaintiffs failed to commence their dramshop action within two years after they were injured. The Court of Appeals affirmed, rejecting plaintiffs’ argument that the statute of limitations was tolled during the interim between filing and granting their motion to amend their complaint to add the tavern owners as defendants. Plaintiffs argued that by adding this 21-day period, from March 10, 1976, to March 31, 1976, to the period of limitations for dramshop actions, plaintiffs properly had filed their amended complaint within the period of limitations, which did not bar plaintiffs’ claim until August 23, 1976. The Supreme Court, by order, held: "the Court of Appeals is reversed, the trial court’s accelerated judgments in favor of defendants-appellees are set aside and the case is remanded to the trial court for further proceedings. The statute of limitations was tolled for 21 days, from March 10 to March 31, 1976, the time during which the motion to amend complaint and add parties defendant was pending, plaintiffs having demonstrated due diligence by seeking a decision on their motion within three weeks.” 403 Mich 851. In a similar case, Amer v Clarence A Durbin Associates, 87 Mich App 62; 273 NW2d 588 (1978), the Court of Appeals followed the rationale of Charpentier, supra, leaving the matter of determining whether the plaintiff had exercised diligence in attempting to join the defendants to the discretion of the trial court. See also Cobb v Mid-Continent Telephone Service Corp, 90 Mich App 349, 354-355; 282 NW2d 317 (1979). We see, as did Judge Riley in her concurrence in Charpentier, supra, a serious problem with permitting the trial court to extend a defendant’s liability depending on whether the trial court, in its discretion, finds that a plaintiff exercised diligence in attempting to join that defendant. Application of statutes of limitations is a counting procedure with a primary purpose being to give the parties and the courts a specific time at which the statutory bar goes into effect. We find that the Supreme Court order in Charpentier, supra, applies such a rule and hold that, when a plaintiff moves to add a party defendant or to amend a complaint to do so, the statute of limitations is tolled during the time in which the motion to add parties or amend the complaint is pending in the trial court. Applying that law to this case, we find that the statute of limitations was tolled for a single day. The parties stipulated to add the defendant City of Detroit on December 15, 1978, and the trial court entered an order adding the City of Detroit as a defendant on the same day. Thus, the statute of limitations ran on February 17, 1979, two years and one day after the accident. Plaintiffs’ failure to file an amended complaint until June 11, 1979, bars any action against the City of Detroit. Affirmed.
[ -50, 45, 22, 3, -3, -23, 10, -30, 10, 24, -30, -37, 7, -6, 46, 10, 30, 21, -4, -23, -3, 5, -13, -11, -22, 42, 29, -63, 3, 49, -7, -40, -22, 42, -26, 25, -33, 17, 30, 25, 6, -29, -30, -14, -11, -9, 61, -4, 44, -20, -17, 21, -41, 21, -29, -17, 0, 15, 29, -10, 11, 42, -10, 0, 0, -34, 20, 21, 11, -19, -40, -8, 15, -4, -18, -31, 14, 0, -4, -39, -13, 1, 25, -14, 19, -38, -20, -23, -24, -51, -42, -14, -25, 19, 11, 11, -60, -32, 20, -44, -65, 7, -20, 17, -9, 36, -2, -47, -9, -33, -10, 35, 34, 18, 7, 43, 21, 1, 35, 42, 40, -23, 17, 3, 23, -12, -22, 16, 6, 12, 2, -13, 50, 22, -4, 37, -43, 16, -8, 27, 4, -18, 26, 20, 54, 19, -9, 32, 24, -33, -14, 20, -2, 17, -23, -2, -1, -56, 36, 0, 26, -26, 13, 1, -42, 3, -21, 40, 0, -7, 2, -29, 71, -7, 46, 24, -35, 19, -53, -8, -18, 43, -10, 0, 43, -52, 21, -27, 13, -17, 29, -52, -35, 23, 35, 40, 30, 34, 30, 22, -6, -57, 11, -10, -27, -27, 9, -15, 6, 27, -25, -35, 24, 3, 24, -49, 36, -21, 18, -27, -12, -41, 14, -45, -25, 7, -63, -81, 34, 29, 2, -22, 0, 51, -44, -17, -9, -16, 12, 42, 33, 17, 0, 6, -3, 56, -15, -11, 28, 27, 41, 13, -1, -31, -9, -37, 18, -16, 4, 8, 31, 68, -10, -47, 33, 6, -18, 28, -32, -2, -5, -9, 36, 10, -77, -74, -10, 6, 46, 35, -23, -15, -48, 47, 6, 44, -6, 9, 7, 51, -11, -5, -53, 20, -24, 5, -6, -2, 0, 27, 2, 28, 1, 29, 7, -72, -36, 7, 49, 9, -15, -21, -15, 24, 37, -9, 49, 24, 55, -17, 19, 58, -22, 44, -30, -10, 40, -12, -42, -35, 7, 51, 12, -3, -24, -31, 35, 19, -21, -17, 0, -3, 29, 64, 52, 40, 65, 0, -2, -4, -49, -44, 40, -53, -10, -1, 2, -53, -35, 32, 0, -44, -1, 19, 6, -1, 7, 18, -15, 82, -2, 9, -34, 0, -28, -59, 37, 13, 6, 59, 22, -66, 7, -41, 37, -14, -34, -86, -14, -6, -44, -12, 0, 2, 21, -25, -35, 38, -22, -19, 0, 26, 1, 39, -6, -10, -7, 17, 24, 14, -55, -15, 30, 14, -46, 1, 30, -32, -29, -52, 4, 65, 0, -53, -7, -35, 25, 9, -29, 45, 15, 2, -9, -12, 46, 37, -30, -69, 12, -15, 8, -3, -15, -9, 10, 18, -18, -27, 26, 25, 76, 44, 23, -30, -2, 20, 1, 34, -37, -16, 25, -70, -49, 19, -14, -5, 0, -1, -1, -12, -27, 19, -2, 0, -21, 9, 6, 13, 0, 10, -35, 58, -20, -11, -24, -30, -7, -24, -15, 6, 40, -38, 17, 43, -16, 20, -34, 27, -53, -35, -33, 4, -56, 10, 40, 2, 4, -28, -48, -7, -53, -3, 33, 26, 24, 9, 2, 8, 55, -22, 5, 1, 20, 11, -62, 26, 5, -35, 29, -21, 48, -11, -13, -17, -17, 46, -26, 27, -20, -11, 40, 58, -16, -25, 17, -44, 7, 8, 33, 29, 27, -35, -30, -31, -4, 6, 6, -22, 20, 10, -6, 34, 35, 24, 52, 13, 8, -47, 39, 14, -81, 44, 34, -42, -26, 7, -7, -31, -65, -12, -28, -5, -35, 12, -53, 14, 37, 7, 3, -4, -20, -12, -9, 0, 75, 30, -12, -4, 5, -9, 79, -21, 3, -14, 12, -29, -58, -59, 40, -52, 15, -6, -105, 14, -26, -14, -41, 6, 38, 32, -5, -20, 8, 64, 24, 5, 1, -11, -15, -14, -8, 0, -26, 0, 11, -21, 54, 17, -6, 14, -6, 41, 57, 31, 6, 0, -47, 72, -55, -16, -57, 46, 6, -51, -16, 31, 13, -36, -40, -15, -32, 17, -28, -23, -48, -35, 0, -42, 7, -7, -12, 2, 52, 23, 63, -19, -35, 23, 43, 28, -37, -9, 22, -45, 8, -38, -24, -12, 33, -4, -50, 17, -17, -10, -16, 30, 25, 31, -38, -1, -7, 11, 3, 11, -63, 16, -12, 3, 25, 7, 15, 1, 4, -37, -4, 19, -17, 17, -3, 9, -27, 7, -38, -30, -58, -3, 13, -69, 26, -1, 8, 6, 9, -50, 14, -18, 16, -38, -16, -3, -2, -5, 34, 6, -33, -37, -12, 8, -29, 6, -21, 24, 7, 56, 15, -32, -5, 0, -50, -48, 13, -31, 26, -17, -47, -36, 30, 39, 33, -7, -35, -3, -6, -30, -2, 31, -29, -40, 6, -47, 0, 6, 45, 1, 15, 7, 26, 47, 30, 13, 17, 3, 8, -43, 2, 29, -12, -2, 76, 6, 3, 3, 39, 12, 15, 5, -13, 44, 57, -5, 12, 15, 7, 15, -10, 9, -7, 20, -21, -29, -23, 0, -50, -14, 17, -23, -10, -12, 32, -1, 36, -19, 15, 52, -18, 48, 57, 16, -14, -1, 35, 20, -42, -4, -16, -10, 3, 0, 8, -10, -41, 3, -43, -22, 38, 33, -25, -45, -54, -13, 6, -39, -51, -38, -14, -14, -22, -41, 6, 33, -9, 20, -22, 54, 3, -8, 16, -32, -12, -70, 9, -36, 33, 45, -38, -12, 22, -16, -48, 56, 19, 37, -15, -17, -31, -1, -55, 27, 60, -18, -34, 24, 4, 11, -44, 19, -22, -8, -61, -14, 27, -9, 20, 10, 0, 3, -54, 2, 9, 8, 24, 41, -13, -23, -50, -1, -3, 18, -28, 30, -7, 9, 14, -12, 3, -30, 27, -33, -10, -39, -14, 24, -5, 38, 12, -4, 15, -3, -39, 16, 5, -33, 3, 31, 2, 17, -6, -7, 4, 63, 14, 28, 19, -45, 16, -48, -8, -21, 18, 90, -36, -4, -6, 47, 14, 10, 15, 22, -8, -7, 8, -17, 5, 44, -26, 0, -7, 2, -38, 14, 0, 17, -30, 5, 0, 10, -20, -15, 27, 29, 6, 32, 23, 27, 32, -17, 20, 1, -11, 51, -47, 15, 16, 7, 16, 24, 3, -2, -29, -25, 0, 13, 4, 26 ]
Bronson, P.J. Frank Dagenhardt died as a result of injuries he sustained when he fell through a skylight on a building owned by defendant-appellee, Special Machine & Engineering, Inc. (hereinafter defendant). At the time this tragic accident occurred, Frank Dagenhardt was employed by Slasor Heating & Cooling Company, which had contracted with defendant to perform certain heating and cooling work. This work required Dagenhardt to go out onto the roof of defendant’s plant. In the contract between Slasor and defendant, Slasor represented that it was fully covered by workers’ disability compensation insurance. In fact, on the day of the accident Slasor did not carry such insurance, in violation of MCL 418.611; MSA 17.237(611). Consequently, defendant petitioned the Bureau of Workers’ Disability Compensation to determine its liability under MCL 418.171; MSA 17.237(171), as a statutorily substituted employer. Notice of the proceedings were provided to plaintiff, Patricia Dagenhardt, Frank’s widow. At the hearing, the administrative law judge ruled that, for purposes of the Worker’s Disability Compensation Act, defendant would be liable for the payment of compensation benefits. A wrongful death action was commenced by plaintiff against defendant and Naturalite, Inc., a manufacturer of skylights who is not involved in this appeal. Defendant moved for summary judgment on the basis that MCL 418.131; MSA 17.237(131) operated to transfer to it the immunity to suit Slasor would have enjoyed under the act as decedent’s employer. The trial court granted sum mary judgment in an order dated January 4, 1980. Plaintiff appeals as of right from this order. The precise question of the extent to which a statutorily substituted employer assumes the rights of a direct employer under the Michigan Worker’s Disability Compensation Act has not been previously addressed. Other jurisdictions with comparable acts which have considered this question have disagreed as to the correct resolution of this problem as will been seen, infra. MCL 418.171(1); MSA 17.237(171)(1) provides: "If any employer subject to the provisions of this act, in this section referred to as the principal, contracts with any other person, in this section referred to as the contractor, who is not subject to this act or who has not complied with the provisions of section 611, and who does not become subject to this act or comply with the provisions of section 611 prior to the date of the injury or death for which claim is made for the execution by or under the contractor of the whole or any part of any work undertaken by the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation under this act which he would have been liable to pay if that workman had been immediately employed by him; and if. compensation is claimed from or proceedings are taken against the principal, then, in the application of this act, reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the workman under the employer by whom he is immediately employed. A contractor shall be deemed to include subcontractors in all cases where the principal gives permission that the work or any part thereof be performed under subcontract.” (Emphasis added.) The exclusive remedy provision is found in MCL 418.131; MSA 17.237(131), which states: "The right to the recovery of benefits as provided in this act shall be the employee’s exclusive remedy against the employer. As used in this section and section 827 'employee’ includes the person injured, his personal representatives and any other person to whom a claim accrues by reason of the injury to or death of the employee, and 'employer’ includes his insurer, a service agent to a self-insured employer, and the accident fund insofar as they furnish, or fail to furnish, safety inspections or safety advisory services incident to providing workmen’s compensation insurance or incident to a self-insured employer’s liability servicing contract.” The language of §§ 171 and 131 is ambiguous as concerns the resolution of this case. Consequently, we must construe the language of the statutory provisions by considering the objects sought to be accomplished by the Legislature through enactment of the act. See Hamilton v Superior Mushroom Co, 91 Mich App 52, 56; 282 NW2d 831 (1979). As will be detailed below, we do not believe defendant is entitled to immunity from tort liability on the facts of this case. Some 43 states have "statutory-employer” provisions in their workers’ compensation disability acts. 2A Larson, Workmen’s Compensation Law, § 72.31, p 14-47. However, these provisions vary in scope and the construction given them by the courts of the individual jurisdictions. The vast majority of those states in which it has been determined that the statutory employer is immune from suit generally reach this result because the principal or general contractor is involved in the same "course of employment” as the direct employer. These jurisdictions do not distinguish between who ultimately was responsible for providing the compensation benefits in a particular case —the direct employer or the statutory employer. Rather, the statutory employer receives the benefit of immunity from suit even where the benefits were paid by the direct employer. The possibility that the statutory employer might become liáble for workers’ compensation benefits is seen as sufficient reason to hold such an employer immune from tort liability. In Michigan, however, neither the workers’ disability compensation statute nor court decisions preclude suits against third-party principals or general contractors who are statutory employers immune from suit in other jurisdictions. Indeed, in Funk v General Motors Corp, 392 Mich 91; 220 NW2d 641 (1974), the Michigan Surpeme Court held that a plumber who was seriously injured when he fell from the roof of the building construction site could sue both the general contractor and the owner of the plant where the work was taking place, even though the subcontractor provided compensation benefits. In those jurisdictions like Michigan whose law provides that third-party principals and general contractors can be sued in tort despite the fact that in some circumstances they might become liable for the payment of compensation benefits, there is a difference of opinion concerning whether a substituted employer may be sued where it, in fact, has provided compensation benefits. In Fonseca v Pacific Construction Co, Ltd, 54 Hawaii 578; 513 P2d 156 (1973), the Hawaiian Supreme Court rejected the position that a general contractor who might become liable for compensation benefits was immune from tort suit under all circumstances. The Fonseca Court did hold, however, that, in the relatively rare circumstances in which the general contractor actually did become liable for the payment of benefits, it was immune from common-law liability. See, also, Ryan v New Bedford Cordage Co, 421 F Supp 794 (D Vt, 1976) (applying Vermont law). The opposite result was reached by the Illinois Supreme Court in Laffoon v Bell & Zoller Coal Co, 65 Ill 2d 437; 359 NE2d 125 (1976). In that case, a salvage company employee was injured on defendant’s premises. Because plaintiff’s direct employer did not carry the required workers’ compensation insurance, defendant became liable for the payment of benefits. Plaintiff also brought suit against defendant. The trial court granted summary judgment for defendant. The appellate court affirmed, one judge dissenting, and the Supreme Court reversed on a 5-2 vote. The Supreme Court noted that statutory-employer immunity would be an incentive to a contractor or third-party principal to engage uninsured subcontractors. We agree. Supposing statutory-employer immunity, if an injury occurred, the substituted employer would be liable for workers’ compensation benefits but all other suits against it would be barred. Since compensation insurance would already be carried by the typical substituted employer for the benefit of its own employees, no additional expenses would be incurred by said employer. If no injury occurred, the substituted employer would not even be responsible for compensation benefits, and likely will have obtained the services of a subcontractor at a lower cost due to the subcontractor’s failure to maintain workers’ compensation insurance. The Laffoon rationale has been characterized by Professor Larson, perhaps the most eminent scholar in the field of workers’ compensation, as having an "Alice-in-Wonderland Through-the-Looking-Glass air about it”. 2A Larson (Supp), § 72.31, p 14-56. In deference to Professor Larson’s status in this field, we have decided to respond to his criticism of Laffoon. Larson notes that the statutory-employer principle was devised in the first place to serve as an incentive for the principal to engage insured subcontractors. The fact is, however, that in Michigan and other states which continue to allow an injured worker to sue the principal or prime contractor where compensation benefits are provided by the employee’s direct employer, the statutory-employer principle has precisely the opposite effect, as noted above. In the majority of states which extend immunity to the general contractor or other principals, the statutory-employer concept does create incentive to hire insured subcontractors. In these jurisdictions the general contractor is free from all liability unless its subcontractor does not carry the required compensation insurance. It is well and good to note the orginal rationale for the existence of a particular concept but it is quite another matter to decide an individual case in reference to said rationale where it has no applicability to the facts of that case. Professor Larson further contends that the Laffoon majority adopts an erroneous assumption by finding that "freedom from an occasional damage suit looms larger as an incentive to the employer than freedom from absolute liability for all work-connected injuries on a total project”. While the Laffoon majority provides no empirical data for this proposition, Larson offers none rebutting the same. Similarly, we know of no studies on this question. However, we believe that the proposition advanced by the Laffoon majority represents a closer approximation of reality than Larson’s view. Professor Larson, himself, notes that a general contractor, by insisting that his subcontractor carry compensation insurance, imposes a cost on the subcontractor which will be passed on to the contractor through the charges levied by the subcontractor. 2A Larson, Workmen’s Compensation Law, § 72.31, p 14-56. As such, the principal’s or prime contractor’s determination is not merely a calculation weighing the relative benefits of total liability for workers’ compensation claims, if any, and the possibility of a million dollar personal injury action, if one should arise. The immediate savings to the principal or contractor by hiring a company whose services can be obtained at a lower cost because of its failure to maintain compensation insurance also enters the calculation. The question then becomes whether this immediate savings and freedom from both liability for a personal injury judgment and the cost of litigating such an action might be perceived as outweighing the potential costs of absolute liability for disability compensation claims brought by the direct employer’s workers. It seems to us that many, if not most, contractors would conclude that it would be less expensive for them in the long run to hire subcontractors without insurance. A principal or contractor could realistically project that the work on a particular project would result in few, if any, claims for compensation. To the extent that one or two claims actually had to be paid in connection with a given project, this might be viewed as infinitely more desirable than a million dollar liability judgment. Moreover, for many principals and contractors avoidance of substantial litigation costs in the defense of a personal injury suit might be viewed as preferable to payment of some disability benefits. The cost of defending through trial even a frivolous suit brought by a worker might very well exceed the cost of providing benefits. Furthermore, in Michigan, a principal or contractor liable to pay compensation as a statutorily substituted employer is entitled to indemnification from the contractor or subcontractor it employs. MCL 418.171(2); MSA 17.237(171X2) provides: "If the principal is liable to pay compensation under this section, he shall be entitled to be indemnified by the contractor or subcontractor. The employee shall not be entitled to recover at common law against the contractor for any damages arising from such injury if he takes compensation from such principal. The principal, in case he pays compensation to the employee of such contractor, may recover the amount so paid in an action against such contractor.” Thus, contrary to Professor Larson’s apparent view, the choice for the principal is not simply absolute liability for workers’ compensation benefits and freedom from a possibly devastating personal injury judgment on the one hand or total immunity from liability on the other. Assuming the principal or contractor hires an uninsured company, the possibility that said principal or contractor will be indemnified for any compensation payments it makes to the worker also enters the calculation. The possibility of indemnification makes the Laffoon majority’s perception that principals would be encouraged to hire uninsured contractors or subcontractors all the more difficult to rebut. Professor Larson sees a second error in Laffoon’s assumption that the general contractor or third-party principal will lose its immunity to damage suits if it is successful in hiring subcontractors with insurance. However, in Michigan this is not an erroneous assumption. As noted previously, in Funk, supra, the Michigan Supreme Court held that general contractors and principals are not immune from suit by a subcontractor’s employee where said subcontractor carries compensation insurance. Larson attacks Laffoon because the majority could have held that a contractor is immune from common-law liability even when his subcontractor is insured. This is in accordance with Larson’s belief that the preferred approach is to hold that a contractor’s potential liability is burden enough to justify the quid pro quo of tort immunity. Whatever applicability this criticism has to the Illinois Supreme Court, we are bound by our Supreme Court’s holding in Funk and have no power to accept the Larson view as the law in Michigan. At this point, however, we note our disagreement with what Professor Larson considers the preferred approach to the statutory employer problem. In McAvoy v H B Sherman Co, 401 Mich 419, 437; 258 NW2d 414 (1977), the Court stated that the objective of the workers’ compensation legislation is to provide the disabled worker with benefits during the period of his disability so that he and his dependents may survive where they would otherwise experience a loss of needed income. McAvoy recognizes that the intended beneficiary of the statute is the employee, not the employer nor third-party tortfeasors. As such, we see no compelling reason why a worker should not be able to sue a principal or contractor who may be liable for compensation. Since, in our opinion, the Legislature did not intend a statutorily substituted employer to be immune from tort liability, we do not address the question of whether the opposite construction would violate equal protection of the law. Reversed and remanded for trial. Even were we to take a literal approach to construing the language employed by the Legislature in MCL 418.171; MSA 17.237(171), defendant would lose on the facts of this case. The literal language of the statutory provision would make defendant an employer for purposes of immunity to a suit in tort only if the worker or the worker’s survivor sought compensation from defendant. Here, although plaintiff is now receiving compensation benefits, these were voluntarily paid over by defendant. At no time did plaintiff claim compensation benefits or take proceedings against defendant to obtain said benefits. The policy considerations outlined in the body of this opinion apply with equal force to situations in which plaintiff seeks benefits from the statutory employer and those in which plaintiff does not. It may be that MCL 418.171; MSA 17.237(171) was actually intended to serve as a provision requiring the worker or his or her survivor to make an election of remedies in respect to the statutory employer, although we think not. If we are wrong, however, plaintiff in this case did not elect to receive compensation benefits in lieu of instituting a tort action. Inter alia: O’Quinn v Walt Disney Productions, Inc, 177 Colo 190; 493 P2d 344 (1972), Kasowitz v Mutual Construction Co, 154 Conn 607; 228 A2d 149 (1967), Georgia Power Co v Diamond, 130 Ga App 268; 202 SE2d 704 (1973), Whitaker v Douglas, 179 Kan 64; 292 P2d 688 (1956), Jennings v Vincent’s Adm’x, 284 Ky 614; 145 SW2d 537 (Ky App, 1940), Wofford v Dow Chemical Co, 335 So 2d 536 (La App, 1976), State, to Use of Reynolds v City of Baltimore, 199 Md 289; 86 A2d 618 (1952), Brown v Gamble Construction Co, Inc, 537 SW2d 685 (Mo App, 1976), Fiscus v Beartooth Electric, 164 Mont 319; 522 P2d 87 (1974), Baker v Hunn Roofing, Inc, 399 F Supp 628 (WD Okla, 1975) (applying Oklahoma law), Moore v Philadelphia Electric Co, 189 F Supp 808 (ED Pa, 1960) (applying Pennsylvania law), Lopez-Correa v Marine Navigation Co, Inc, 289 F Supp 993 (D PR, 1968) (applying Puerto Rican law). See, also, Carter v Fraser Construction Co, 219 F Supp 650 (WD Ark, 1963) (applying Arkansas law), Sweezey v Arc Electrical Construction Co, Inc, 295 NY 306; 67 NE2d 369 (1946). We do not mean to imply that most contractors would consequently seek the services of companies not carrying workers’ compensation insurance. Most contractors might well prefer to deal with insured companies simply because the law requires these companies to carry the insurance. Undoubtedly, however, some contractors would seek out uninsured companies as subcontractors seeing the potential advantages. Other contractors, probably a larger group, would simply not bother to insist that their subcontractors carry insurance. The status of the subcontractor relative to compensation insurance would simply cease to be a relevant consideration. Although this footnote refers to what contractors would do, it applies with equal force to principals who might become statutory employers. One might ask why a principal or contractor who has concluded that a particular project poses few risks for workers would then be worried about a million dollar liablity judgment for injury to such a worker. While a principal or contractor might see the likelihood of either liability for compensation benefits or for tort liability to be remote indeed, it might nonetheless conclude that the slender chance of a substantial personal injury judgment being taken against it far outweighs the imposition of liability for workers’ disability payments. The choice might be viewed as akin to taking out an insurance policy to cover damages caused by some unlikely catastrophic event. The "premiums” would be the cost of providing disability benefits if any should arise and the risk protected against would be the million dollar judgment for a worker’s personal injury. It should he noted that plaintiffs complaint in this case alleged active negligence on the part of defendant. The same result would not follow if the principal’s negligence was alleged to be merely derivative of the worker’s direct employer. Our construction of the applicable statutes merely puts the employee in the same position he would have been in had the direct employer carried the required compensation insurance. That is, the employee could have received workers’ compensation benefits and sued the actively negligent principal in tort. A principal who is merely derivatively liable for his subcontractor’s negligence could not be sued in tort by an employee of that subcontractor if the required compensation insurance was carried. As such, that same principal could not be sued in tort where derivative liability is pled for the reason that the direct employer did not carry workers’ compensation insurance. The policy underpinning of this opinion is that all workers, regardless of whether their direct employers do or do not carry the required insurance, should be afforded the same rights with respect to litigation against the principal. Allowing an action to lie where the principal is only derivatively liable of a subcontractor who did not carry insurance would provide preferential treatment to the worker of the uninsured subcontractor.
[ 3, -22, -40, -26, 52, 13, -6, 26, 17, 17, -69, 12, 72, 5, 35, -9, -2, 34, -38, 40, 5, -16, -8, 0, -37, -26, -9, -12, -3, 23, 0, 19, -43, -26, -26, 11, 30, -47, 6, -8, -5, -30, 82, -96, -6, -9, 29, 6, 40, -2, -21, 19, -26, 33, 58, -19, 9, 19, -22, 31, -37, -10, 48, -41, 17, 31, 39, 37, -21, 60, 44, 36, 28, -8, -16, -18, 7, 42, -8, 0, -4, -26, 10, -52, 8, 43, -19, 19, -50, -18, -68, -63, 44, 29, -48, 26, -13, 75, -16, 50, -45, 16, 34, 25, 11, 8, 40, 10, -4, 24, -10, 16, -3, 32, -15, 13, 49, 43, -45, 26, -8, 5, 44, -10, -25, 2, 9, -39, 6, 23, 30, 10, 0, 45, -18, 19, 13, 14, -33, -11, -35, -1, 14, -18, -15, 48, -32, -6, -14, -53, -13, -4, 17, 6, 15, -24, 8, -27, 59, -25, 15, -38, 48, 36, 7, -17, 0, 39, 7, 0, 15, -66, -2, -33, 38, -7, 63, -27, -41, 6, -24, -49, 7, 14, 10, -19, -30, -17, 23, 14, 37, -39, -43, 39, -33, 28, 0, 27, 17, 14, 40, -33, 11, -3, 54, 19, -1, 10, -19, 8, 43, -28, -43, -43, 14, 14, -26, 0, -65, -81, -34, -17, 39, 2, -32, -81, -38, -20, 2, -57, -2, -13, 107, 40, -45, -41, 2, -44, 38, -22, 28, 7, -38, 25, 10, 14, 38, -42, -8, -19, 29, -13, 13, -2, -6, -50, -14, 38, 2, -51, -8, 41, -41, -5, 58, -43, -27, -17, -3, -22, -16, 9, 76, -23, -36, -90, -2, 47, 56, -33, 40, 9, -23, -80, -21, 20, 13, -26, -42, 11, 51, -33, 43, -30, 51, 4, -4, -34, -37, 4, -21, 8, 0, -15, 27, -7, -21, 23, 12, -6, -47, -16, 55, -26, 30, 6, 2, -26, 45, -24, 19, -11, -6, -9, -8, -36, 11, 6, -3, 58, -27, -24, -29, -6, 23, -33, 53, 0, -18, -28, -49, 21, 3, 18, -36, 12, 49, 1, 23, -42, -13, -32, 5, 2, -6, 17, 57, 1, -39, 30, 39, -11, -53, 44, -51, -18, -16, 22, 1, 18, 0, 2, 12, -22, -47, 0, -34, 34, -37, 27, 19, 9, 21, -30, -41, -37, -38, -7, 11, 3, -79, -48, -21, 3, -25, 33, -19, -10, -29, 17, 15, 8, 8, -15, -14, -47, -21, -27, -41, 45, -21, 20, 30, -1, -7, -23, 68, -40, -3, 4, 46, 6, 19, -93, 7, -1, -21, 30, -31, -13, 2, 33, -7, -3, 23, -37, -30, 17, 24, 31, -13, -5, -26, -19, 68, 24, -28, 10, 60, -61, 9, 42, 17, 89, -16, -29, -22, -6, -9, -11, -32, -52, 52, -32, 49, -4, -28, 16, 39, 19, -31, -24, -31, 15, 0, -39, 7, 5, -2, 28, -12, 22, 45, -20, -10, -42, 1, 46, -7, -8, 33, 38, -36, -18, -12, 10, -6, 26, -52, -16, -5, -36, 8, 29, 8, -72, 12, -37, -14, 11, -56, -1, 24, 41, 41, 21, 1, -42, 70, -2, -6, -60, -6, 29, 0, -36, -9, 68, -13, -6, 34, -55, 66, -5, -6, -15, 13, 32, -52, -34, 9, 26, -4, -5, 16, -46, -8, 40, 1, 0, -36, -65, 31, -29, 14, -4, 30, 45, 60, -10, -4, 18, -8, 17, -33, -22, -18, 30, 22, -14, -32, 68, 0, -17, -17, 30, 7, 15, -22, 12, 6, 16, 99, -7, -47, -11, 18, 4, 19, 17, -26, 2, -16, -6, -33, 9, 8, -33, 7, 3, 0, -19, -71, 8, -1, 19, -6, -24, 83, -30, -38, -17, 11, -29, 5, -18, 5, -49, 64, 29, 4, 51, 28, 14, -62, 61, 32, 0, -1, 14, -3, 17, -17, -68, 6, -33, 20, 11, -13, 6, 14, -7, -1, 5, -78, -93, -4, 18, 33, -15, 6, 45, -12, 16, -37, -31, -58, 16, -52, 40, -63, 6, -15, 4, 59, 42, 22, -44, -8, -3, 75, 73, -4, 15, 30, 4, -24, 15, 0, 21, -10, 3, 33, 1, 30, 25, -27, -38, 6, -82, -24, 29, -20, -9, -12, 24, -5, -2, 18, -28, -22, 19, -37, 18, -62, 34, -3, -87, -9, 36, 10, 43, 25, -6, -6, 99, -12, -38, -15, -41, -76, -14, -19, -16, -46, 14, -17, -17, -36, 12, -16, 0, -22, 23, -43, 15, 6, 5, -41, 25, 59, 8, 30, 32, -39, -50, 35, 3, 42, 27, -27, 44, 30, -9, 5, -38, 40, 49, -47, 17, -49, -13, 15, 19, 35, -9, -50, 4, 11, -80, 20, 92, 7, -32, 5, 12, 21, -62, -63, -2, 64, 13, 44, 3, -33, -13, -10, -23, -3, -17, -20, 18, 47, -33, 31, -17, 11, 67, -12, -21, -9, 21, -9, -6, 10, -9, 7, -26, 11, -36, 33, -9, 51, 41, -3, 41, 8, 36, -20, 17, 10, 30, -30, -77, 18, -14, -45, -7, 17, -19, -8, 13, -25, 25, -2, -1, 3, 28, -29, -74, -6, 23, -24, 92, 45, 3, 26, -7, 19, -8, -14, -54, -31, 9, 2, 26, -2, -23, -29, 15, 57, -4, -30, 57, -7, -17, -54, 18, -9, -43, -10, 3, 5, 0, -16, 16, -20, -21, 70, -2, 18, 2, 16, -8, -27, 11, 25, 35, 4, 59, 14, 34, -28, -14, -43, -10, -29, 25, 61, -59, 24, 9, -37, 12, 6, 49, -12, -4, -64, 25, 0, -24, 0, 15, 20, 47, -16, 48, 38, 37, -88, -22, 1, -62, -39, 21, 33, 35, -10, 28, -31, -6, -10, 5, 94, -53, -8, -13, -39, -8, 5, 18, 11, -34, -29, -25, 47, -22, -7, 2, 18, -3, 17, 18, 11, 20, 10, 13, -8, 23, 2, -17, -15, 53, 58, -27, 7, -47, 11, -65, 46, 16, -2, -37, 29, -7, -31, 13, -1, 14, -11, -50, -36, 11, -4, -42, -17, -73, -18, -28, 32, -40, -27, 48, -1, 23, -2, 32, 23, 3, 41, -30, -30, 73, 26, 61, 26, -38, 51, 39, -8, 7, -32, -13, 24, 39, -71, -1, -53, -14, 32, 8, -23, -15 ]
Per Curiam. The information filed on March 5, 1979, charged the defendant with one count of criminal sexual conduct in the first degree under MCL 750.520b; MSA 28.788(2). On the same date, and at the same time, a supplemental information was filed, charging the defendant as a third-time felony offender. He was tried and convicted by a jury on July 9, 1979, of first-degree criminal sexual conduct. MCL 750.520b; MSA 28.788(2). He subsequently pled guilty to a supplemental information, admitting two prior convictions. On August 6, 1979, defendant was sentenced to a prison term of from 25 to 50 years. Defendant’s motion for a new trial or, in the alternative, resentencing was denied, and he appeals as of right. Five-year old Kimberly Davis was the principal prosecution witness. Kim testified that she lived with her natural father, Gary Davis, and her stepmother, Pamela Davis. Her natural mother, Gisela Bowyer, was married to defendant. Kim testified as to various acts of sexual misconduct involving herself and defendant. The acts took place while Kim was on a weekend visit to the Bowyers. Although Kim’s testimony contained some inconsistencies, other aspects including testimony regarding oral sex acts were consistent. She also made drawings in court in conjunction with what she and the defendant did. Defendant’s first claim of error concerns the trial court’s denial of a motion for directed verdict. Additionally, the defendant contends that even had the proper standard been applied, the evidence was insufficient to be presented to the jury and/or that the evidence was contrary to the great weight of the evidence. People v Hampton, 407 Mich 354; 285 NW2d 284 (1979), recognizes that the proper standard to be applied in passing on motions for . directed verdicts in criminal cases is enunciated in Jackson v Virginia, 443 US 307; 99 S Ct 2781; 61 L Ed 2d 560 (1979). The Hampton decision states on page 368: "In summary, the trial judge when ruling on a motion for a directed verdict of acquittal must consider the evidence presented by the prosecution up to the time the motion is made [People v Garcia, 398 Mich 250; 247 NW2d 547 (1976)], view that evidence in a light most favorable to the prosecution, People v Vail, 393 Mich 460, 463; 227 NW2d 535 (1975), and determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt, Jackson, supra, p 319.” The trial court in denying the motion for a directed verdict at the close of the prosecutor’s case in chief stated that the court was satisfied that there was sufficient testimony to demonstrate the commission of a crime and that it was the defendant who committed the crime. The trial court did use the applicable standard as announced in Hampton, supra. The record supports the trial court’s ruling in denying the motion for directed verdict. As stated in Hampton, supra, 372-373: "The standards governing the grant or denial of a motion for a new trial are different from those for a directed verdict. MCL 770.1; MSA 28.1098, provides: " 'The court in which the trial of any indictment shall be had may grant a new trial to the defendant, for any cause for which by law a new trial may be granted, or when it shall appear to the court that justice has not been done, and on such terms or conditions as the court shall direct.’ "Under this statute, a new trial may be granted if the trial judge finds that the guilty verdict was not in accordance with the evidence introduced and that an injustice has been done. People v Henssler, 48 Mich 49, 51; 11 NW 804 (1882), People v Rayford Johnson, 391 Mich 834; 218 NW2d 378 (1974). See, also, GCR 1963, 527.1(5). The decision whether to grant or deny a motion for a new trial is entrusted to the discretion of the trial court and that decision will not be disturbed on appeal without a showing of an abuse of discretion, People v Andrews, 360 Mich 572; 104 NW2d 199 (1960), People v Lowenstein, 309 Mich 94; 14 NW2d 794 (1944).” Defendant contends that even if the evidence is found to be legally sufficient for the case to have gone to the jury, there is such a strong possibility that the resulting conviction was unsupported factually that this Court should overturn the conviction. A major part of defendant’s argument is premised on the contention of inconsistencies in the testimony of Kimberly Ann Davis. It is for the jury to decide who to believe and what testimony of a particular witness to believe. People v Hancock, 326 Mich 471, 504; 40 NW2d 689 (1950), People v Franszkiewicz, 302 Mich 144, 153-154; 4 NW2d 500 (1942), People v English, 302 Mich 463, 469; 4 NW2d 727 (1942), People v Miceli, 35 Mich App 176, 178; 192 NW2d 335 (1971), People v Strunk, 11 Mich App 99, 101-103; 160 NW2d 602 (1968). In People v Stewart, 36 Mich App 93, 98; 193 NW2d 184 (1971), this Court stated that great deference should be given to the trier of fact because of the problems inherent in reviewing a cold transcript. The Court stated: "When an appellate court is confronted with a challenge to the judgment of the trier of the facts, it will not easily be moved to overturn the judgment below. The trier of the facts, be it judge or jury, has had the opportunity to listen to the witnesses and observe their demeanor; he has had the opportunity to observe and evaluate the plethora of subjective and objective factors which together influence his opinion of the credibility of the witnesses. These factors do not survive in the stenographic transcription, we merely have a record of the words spoken at trial — an incomplete record at best. For this reason, an appellate court is reluctant to overturn the judgment of the trier of fact and substitute its judgment, which must necessarily be based on an inadequate description of the factors which lead the trier of fact to reach its decision.” The jurors had an opportunity to listen to the witnesses, observe their demeanor, evaluate and weigh the testimony, and determine their credibility. The trial court did not abuse its discretion in denying the motion for a new trial. The testimony was sufficient under Hampton not only to deny the motion for directed verdict but also to support the jury verdict. Defendant alleges that the prosecutor impermissibly flouted the rules of evidence in his arguments to the jury by stating that unanswered questions would remain in the case. No objections were raised during trial to the prosecutor’s remarks, and unless a miscarriage of justice would result the issue cannot be raised now, People v Clark, 88 Mich App 88; 276 NW2d 527 (1979), People v Moncure, 94 Mich App 252; 288 NW2d 675 (1979). We find no miscarriage of justice in the present case. Defendant’s third contention is that he was denied his right to notice since the information stated the date of the offense as "on or about 2/2/ 79”. Again, no objection was made during trial to the information, and the issue thus is not preserved for review, People v Atsilis, 60 Mich App 738; 231 NW2d 534 (1975), People v Stinson, 88 Mich App 672; 278 NW2d 715 (1979). Defendant’s contention also fails on its merits because a time variance is permissible unless time is an element of the offense or of the essence of the offense, see MCL 767.51; MSA 28.991, and neither exception applies here. See, also, People v Howell, 396 Mich 16; 238 NW2d 148 (1976). Defendant contends that the in-court drawings were admitted improperly as demonstrative evidence. The specific ground of objection now raised, irrelevancy, was not the ground raised at trial. The first drawing, at least, depicting a mouth and a penis, was relevant to the case and, therefore, properly admitted. Even if the other drawings were admitted improperly, no reversible error occurred. Defendant’s final contention concerns sentencing. During sentencing on August 6, 1979, the following exchange took place: "The Court: * * * We have reviewed the material you submitted and it has, I believe, been added to the presentence report. It would primarily address itself to the reason why I should not now impose a sentence because you contend that you are innocent of that offense and that the jury conviction was a miscarriage of justice. We note your position as reported in the presentence report that your conviction is a result of a conspiracy between your former wife and whoever else might be involved, and certainly if that be true and you have not committed this offense it certainly does constitute a miscarriage of justice. "We have reviewed your contentions. Do you have anything else to say as to why I should not now impose a sentence at this time? "Defendant Bowyer: I don’t have nothing to say as imposing a sentence. ’’The Court: Do you have anything additional you wish to add before I do impose a sentence? ’’Defendant Bowyer: I can’t think of nothing. ’’The Court: Mr. Williams, you’ve gone over the presentence report. "Mr. Williams: That’s correct, your Honor. ’’The Court: Do you have anything further that you would wish to add, or anything that you found in there that’s incorrect or inaccurate, and something that should be deleted or explained, or in some other way modified? "Mr. Williams: Your Honor, first of all, I would like to point out that in the presentence report there is some reference to an alleged prior incident of the same nature. "Again, I’d like to point out to the Court that there wasn’t any substance to the allegation there.” Defense counsel’s remarks in effect deny prior, similar sexual incidents. Whether the court was distracted by a lengthy presentation made by defense counsel which immediately followed, or whatever the reason may have been, the court did not respond to the defense denial of prior, similar sexual incidents. Ordinarily, failure of the court to respond would be error. In People v McIntosh, 62 Mich App 422, 446-448; 234 NW2d 157 (1975), modified on other grounds 400 Mich 1 (1977), the trial court similarly was faced with charges of inaccuracies in the presentence report. The Court held that the trial court erred in failing to respond: "The court, in response, merely denied the defense requests without comment and imposed sentence. No indication was given as to what factors were the basis for the sentence and, thus, whether the disputed points were considered and, if so, what weight was given to them. "GCR 1963, 785.12, leaves to the trial judge not only discretion to consider and weigh the contents of the presentence report, objective and subjective, but also discretion as to the means of implementing the due process duty of ascertaining, when the objection is raised, that the defendant is not prejudiced in sentencing by false information. United States v Sanders, 438 F2d 344 (CA 5, 1971). While not compelled to hold an evidentiary hearing, in the exercise of his discretion, he may do so. He may accept unsworn statements of the defendant. He may ascertain that the disputed matter is not relevant to his decision, or is of little weight, or could be safely disregarded without regard to its accuracy in light of other facts. There are many ways, in the exercise of his discretion, that he may meet the problem. "Here, unfortunately, the trial judge simply did not respond to the defense claim in any way and thus abdicated his discretion. The failure to exercise discretion, when called upon to do so, is error. People v Lessard, 22 Mich App 342; 177 NW2d 208 (1970), United States v Espinoza, 481 F2d 553 (CA 5, 1973). We remand for resentence accordingly.” In People v Perez, 94 Mich App 759, 761; 289 NW2d 857 (1980), the trial court stated that it was " ' necessary to impose serious penalties on such a serious charge’ * * Since the record did not reflect whether that consideration influenced the sentence imposed, the case was remanded for re-sentencing. The opinion of the trial court in denying the motion for a new trial and in denying resentencing is written with care and candor. The judge indicated that the presentence report contained allegations of sexual incidents of the same nature. The trial judge indicated: "Had the Court been of the opinion that the defendant had committed more crimes against her person than was testified at the trial, we are satisfied that the sentence imposed would not have been the minimum of 25 years but something substantially greater to assure that Society would be further protected against further depredations.” The trial judge concluded: "It is our opinion that the sentence imposed was proper in view of the defendant’s background and the nature of the offense. The material that was contained in the presentence report that is now pointed out in detail, in our opinion, did not affect the sentencing decision of the Court. ” (Emphasis added.) It is our opinion that the expression and explanation of the trial judge in denying resentencing was sufficient to overcome the alleged error of failing to respond at sentencing time. No further remand is required. Affirmed.
[ 7, 0, 3, 63, -42, -21, -22, -38, -46, 8, -40, -18, 12, -17, 0, -14, -5, -10, 25, -36, 61, 45, -49, 29, 0, 8, 31, 36, -12, -61, 36, -8, 8, -60, 7, -1, 43, 78, -11, 15, -7, -18, 37, 37, -33, -14, 60, 11, 22, 22, -15, -2, 13, -20, 0, 16, 35, 5, 41, 28, -9, 31, -23, -42, -55, -77, -27, 13, 14, -19, 10, -33, -6, -9, -13, -31, -26, 47, 46, 14, -6, -17, 23, 51, 24, 5, 7, -44, 23, 32, 12, -9, -26, -62, -49, -11, 5, -5, -5, -30, -47, 3, 17, -6, 4, 32, -29, -40, -22, 11, -13, -58, 35, -34, -10, -49, 63, -19, -13, -5, 7, 41, 37, -1, 29, -9, 2, -30, -34, -57, 3, -6, -29, -3, -3, 8, 0, 0, 15, -38, -29, 26, 18, 21, 3, 27, -69, 8, 38, -33, -32, 12, -34, -24, -7, -33, -23, -10, -9, -14, -15, 10, -25, -14, -24, -49, -25, 21, 43, 21, -3, -27, 7, -36, -4, 6, -21, -18, -35, -27, -12, 11, 11, 19, -14, 23, -54, 0, 5, 21, -37, 8, 11, -11, 35, 33, 8, 19, 34, -34, -11, -32, 3, 7, 14, -10, -20, 7, -19, 22, 12, -64, 3, -44, 3, -41, -41, -3, -25, 58, -5, -5, 65, 0, 1, -1, 5, 3, 4, 30, 23, 17, 12, -20, -2, -13, 15, 22, 45, 2, 0, -26, 53, 7, 20, 20, -31, 26, -3, -42, -5, 20, -8, 36, -16, -40, -2, 25, -30, 16, 19, 20, -26, 22, -60, 49, -19, 56, -68, -16, 3, -31, 4, -25, -5, 8, 3, 32, -30, -6, -15, 2, 71, 15, -14, -19, -28, 42, 12, 51, 54, -22, -35, -13, 26, -18, -15, 12, -73, -3, 25, -52, 7, -55, -23, -18, -11, -16, -54, 27, 52, -11, 14, 14, 31, 11, -21, -54, 52, -9, -48, -10, 42, -53, 29, -3, 42, -40, -11, -58, -59, 40, 14, 13, 47, -9, 24, 2, 3, 23, -5, -21, -6, 13, -16, 2, 37, 67, 7, 25, 20, 3, 36, -7, -36, -1, -50, -44, 22, -48, 19, -3, -15, 11, 28, 24, 70, 3, 16, 54, 30, -58, 17, -38, 9, 19, 18, 23, 32, -4, -33, -44, 29, -12, -15, -45, 10, -18, -3, -12, 16, 5, 21, -47, -6, -25, -3, 57, 15, -19, -29, 2, 46, 0, -40, -7, -39, 16, -10, 5, 18, 58, 36, 50, 0, -39, 46, -28, 59, 17, 6, 16, -10, 0, 21, 22, -13, 5, 70, -43, -43, 8, -15, -25, 33, 32, -26, 57, 26, 27, -28, -16, -24, 16, -49, -13, -10, -56, 13, -45, 7, 14, 14, -39, 63, 23, 38, -4, -50, -17, 28, -30, 70, 17, 33, -13, -55, -19, -22, 41, 27, 24, -1, -5, 16, 2, -29, -1, 33, -15, 28, 39, -29, -16, 74, -14, 1, -55, 31, -33, -5, -15, -17, 3, -27, -6, -36, 21, -25, -20, -43, -51, 5, -6, 54, -13, 77, -29, -23, 5, 23, 7, 7, -2, -9, 21, 33, -18, -23, 12, 14, -54, -5, 29, -69, 3, -41, -41, -37, 44, 66, 50, -43, -25, 57, -17, -81, -59, -35, -10, 18, 1, 11, 36, 7, -21, -3, -25, -30, 30, 5, 15, 18, 5, -40, 14, 10, 34, -44, -59, -35, 23, 46, 20, 9, -6, 7, -31, 25, 25, 52, -15, -38, -3, 9, 13, -19, 64, -13, 29, 26, 65, 0, -19, -53, -2, 64, 43, -1, -32, -89, 8, 55, -44, -7, -8, -28, -54, -35, -22, 0, -3, -30, 2, 47, 33, 66, 24, -37, -85, 14, -25, -9, 4, 15, -3, -17, -39, -72, 18, -29, 25, 3, 7, 28, -5, -49, -8, 3, -3, -5, -3, -53, -1, -27, 3, -37, -12, -3, -30, 40, 40, 6, 14, 43, 4, -37, -35, 8, -71, -29, -4, 33, -1, 13, -1, -25, -37, 11, -14, -1, 2, 13, 15, 21, -3, 27, 27, 23, 15, -40, -14, 23, -15, 0, 8, -14, -23, 26, -64, -11, -15, 48, -56, 78, 29, -33, 3, 12, 24, -38, 2, 25, 50, -2, 23, -18, 12, -36, 58, -34, 26, -12, 0, 18, -25, -8, -39, -10, -11, -35, 85, -11, 14, -33, 31, 22, -15, -41, -4, -10, 33, 15, -51, 0, 15, 29, 0, 87, -44, 21, -5, 21, 85, 6, -11, -12, 22, 14, 57, 0, -47, -60, -60, -52, 16, -3, -9, -11, 39, 40, 16, -16, -2, -37, 81, 64, -11, -4, -14, -3, -14, 53, -45, -39, 20, -46, -7, 57, 36, -23, -43, 47, 43, -104, 50, 24, 22, 11, -1, -11, 49, -27, 39, -12, -35, 13, 7, 25, -28, 38, -25, -22, 33, 17, 38, -17, -7, -44, 5, 30, 32, -8, 15, -26, 42, 11, -50, 16, 11, 28, 26, -30, 23, -12, -39, 23, -51, 9, -4, 43, 26, -64, -2, 52, 2, 38, -4, -9, -40, -14, -4, 12, 30, -21, -4, 38, -13, 34, 46, -28, 32, 31, -26, 25, 2, -12, -14, 75, -58, 40, 33, -9, -24, -62, 48, 12, -7, 55, -27, -2, -11, -27, -13, -32, 27, 24, 5, 47, -45, -1, -19, 7, 39, -6, -12, 17, -22, -21, 65, 72, -27, 3, 25, 64, -4, -29, 3, -21, -28, -1, 35, 24, -25, -42, 41, 11, -11, -17, -31, 12, 18, -70, 29, 63, -65, 10, 19, -51, -38, 3, -22, 29, 19, -27, -25, -16, -3, -22, -37, 24, 7, 15, 65, 18, -41, 23, 0, -60, 23, -3, 20, -51, 2, -7, 8, -19, -67, 34, 3, 33, -32, -51, -8, -20, -39, -77, -13, -22, -14, -14, -47, 13, -15, -9, -12, -8, 2, -40, -24, 19, 30, -4, 21, 3, 48, 29, 87, -13, 33, 7, -50, 6, -60, 22, -8, 0, -41, -9, -19, -3, -17, 22, -31, -31, 14, 12, 34, 18, 12, 13, -32, 25, 7, 0, -17, 25, -26, 28, -14, 1, 37, 30, -8, -21, -19, -18, -33, -22, 22, -26, 9, 22, 5, -3, 10, -47, 13, 16, 18, -18, 43, 42, 37 ]
On Rehearing Before: J. H. Gillis, P.J., and Bashara and Cynar, JJ. J. H. Gillis, P.J. This opinion represents appeals in three cases. In docket nos. 78-3658 and 78-3659, the prosecutor appeals from the trial court’s dismissal of two first-degree murder charges, MCL 750.316; MSA 28.548, which were brought under two separate warrants (nos. 74-04988 and 74-05793). In docket no. 77-2585, defendant appeals from his conviction (as charged) of first-degree murder, MCL 750.316; MSA 28.548, and rape, MCL 750.520; MSA 28.788, and from the trial court’s denial of his motion to dismiss those charges (lower court docket no. 74-05901). Both appeals are taken as of right, GCR 1963, 806.1, and in each we are asked to resolve a multitude of issues arising principally under the interstate agreement on detainers (IAD), MCL 780.601 et seq.; MSA 4.147(1) et seq. The charges involved in docket nos. 78-3658 and 78-3659 were brought against defendant by warrants issued on July 2 and July 30, 1974. The charges involved in docket no. 77-2585 were brought against defendant by a warrant issued on August 3, 1974. No action occurred in any of the three files until October, 1975, when the Detroit Police Department (DPD) was advised that defendant was in custody in Brownsville, Texas, pending disposition of federal narcotics charges. At that time, the DPD advised the Cameron County, Texas, sheriff as follows: "In re: Ernest Browning a/k/a Thomas Mism DOB 4/8/54 N/M "Enclosed is a certified copy of our warrant #74-04988 and #74-05901, both for First Degree Murder, to be lodged against the above captioned subject who is in your custody on narcotic charges. "Also enclosed you will find our circular and a set of the wanted subject’s fingerprints for positive identification. "Please keep us informed as to the final disposition of your case. If the subject is sentenced on your charges, advise the institution to where he will be transferred and the date and term of sentence.” On November 24, 1975, defendant was sentenced to serve time in the federal penitentiary at Terre Haute, Indiana, after his conviction on the narcotics charge. He was transferred to Terre Haute on January 21, 1976. On January 30, 1976, a LEIN message from the DPD to the federal authorities at Terre Haute was sent as follows: "This dept holds two valid first degree murder warrants for Ernest Browning AKA Thomas Mims AKA Thomas Minns NM DOB 4-8-54. Warrant 74-05793 & Warrant 74-04988. Understand he is in your custody as Thomas Minns ID #22831-149D. Place hold on him. We had lodged murder warrants when in custody in Brownsville, Texas. Were these warrants forwarded with him to your institution. We will send letter and warrants. Place hold for us. We will start papers Monday to return him under the Agreement on Detainers. Thanks.” On February 2, 1976, the following letter was sent by the DPD to the authorities in Terre Haute: "Enclosed herewith are certified copies of our warrants #74-04988 and 74-05793, both for First Degree Murder, and we request that these be lodged as detainers against the above prisoner. "We will proceed to return him under the 'Agreement on Detainers.’ "Also enclosed is a copy of our circular and a set of the wanted subject’s fingerprints. "Thank you for your cooperation in this matter.” On February 5, 1976, Terre Haute acknowledged receipt of the foregoing letter. On February 6, 1976, defendant received a note from his prison counselor which advised that defendant "now has an official detainer”. On February 21, 1976, defendant was transferred from Terre Haute to the federal prison at Milan, Michigan, pursuant to a writ of habeas corpus ad prosequendum which stated as its purpose: "To stand trial on warrant #74-04988 and #74-05793”. These are the lower court numbers in our docket nos. 78-3658 and 78-3659. Defendant was subsequently arraigned, however, on all three warrants, on February 25, 1976. Preliminary examination was likewise held on all three warrants on April 14, 1976. During this period, defendant was housed at the federal prison in Milan. When his presence was required in recorder’s court, he was brought to the federal building in Detroit by United States deputy marshals and there handed over to Detroit police officers, who transported him to recorder’s court. Between April 14, 1976, and June 26, 1976, various pretrial conferences were scheduled and adjourned, apparently because defense counsel had not been given certain discovery materials he had requested. On June 26, 1976, defendant was transferred from Milan back to Terre Haute, primarily because trial was not scheduled to begin until four months later. On September 20, 1976, defendant moved to dismiss the charges on which he was ultimately convicted (docket no. 77-2585) on the basis that he was returned to his original place of imprisonment before trial, in violation of Article IV(e) of the IAD. This motion was denied by recorder’s court judge Hobson, on March 11, 1977, because no detainer had ever been filed in that case. A similar motion to dismiss the charges in docket nos. 78-3658 and 78-3659 was granted by recorder’s court judge Jobes, by order dated August 17, 1978. Although defendant raised both Article IV(e) and the speedy trial provision in Article IV(c) in the latter motion, Judge Jobes premised her decision on the Article IV(e) argument. Subsequent to the filing of both motions, but before either was ruled upon, defendant and his attorney signed a stipulation which purported (1) to waive defendant’s right to trial within 180 days under Article 111(a) of the IAD, (2) to waive defendant’s right to trial within 120 days under Article IV(c) of the IAD, and (3) to retain any jurisdictional rights which were asserted in defendant’s motion to dismiss. This stipulation was signed on November 19, 1976, subsequent to defendant’s return to Milan on or about November 7, 1976, pursuant to a second writ of habeas corpus ad prosequendum issued by the Michigan authorities. On March 25, 1977, defendant was convicted as charged in docket no. 77-2585. The several issues presented for our consideration in this case are as follows: (1) Whether the defendant’s presence in Michigan was secured under the IAD. (2) If so, whether the absence of a reference to the warrant in docket no. 77-2585 on the documents which triggered an application of the IAD should operate to deprive defendant of the benefits of the IAD in that case. (3) Whether the stipulation signed by defendant and his attorney operates as a waiver of either the Article IV(c) or (e) claims. (4) Whether, where the IAD is applicable, Article IV(c) or (e) was violated because defendant was not tried within 120 days of his transfer to Michigán or before his return to Terre Haute. (5) Whether the transfer back before trial was in violation of Article IV(e) because (a) defendant was always in federal custody; (b) defendant never waived extradition as required by Article 111(e); (c) IAD forms were never used by the state officials; or (d) the transfer was effected in furtherance of the overriding purpose of the IAD: uninterrupted rehabilitation. (6) Whether the trial judge in docket no. 77-2585 was empowered to try defendant, given that he was a common pleas judge assigned to sit in Detroit Recorder’s Court by the Supreme Court. (7) Whether the prosecutor’s failure to produce a tape recording of an interview with a key witness and accomplice constituted a violation of a discovery order. I The IAD is a uniform law which has been enacted by a majority of the states, the District of Columbia, and the federal government. It "prescribes procedures by which a prisoner may demand the prompt disposition of charges pending against him in a state other than the one in which he is imprisoned, as well as procedures by which a state may obtain for trial a prisoner who is incarcerated in another state”. Anno: Validity, Construction, and Application of Interstate Agreement on Detainers, 98 ALR3d 160, 166. The purpose of the IAD is to counteract the uncertainties which obstruct programs of prisoner treatment and rehabilitation when a prisoner’s status is clouded by the existence of untried charges on which detainers have been lodged. Thus, the prisoner may demand final disposition of any untried indictments, informations or complaints. Article III. Under Article IV, the state may initiate the process whereby a prisoner is returned to the state for trial. In the language of the act, this latter process is begun by lodging a detainer against the prisoner. Article IV(a). The act contains no definition of a detainer. It has been otherwise defined, however, as a "notification filed with the institution in which a prisoner is serving a sentence, advising that he is wanted to face pending criminal charges in another jurisdiction”. Senate Report 91-1356, 91st Cong, 2d Sess, 3 US Code Cong & Admin News, p 4865 (1970). In People v Beamon, 83 Mich App 121; 268 NW2d 310; 98 ALR3d 149 (1978), lv den 403 Mich 850 (1978), another panel of this Court held that a letter from the recorder’s court clerk to officials at Terre Haute, which advised of charges pending against defendant, who was incarcerated in Terre Haute, was a detainer. 83 Mich App 121, 132. Alternatively, the Beamon panel also found that a writ of habeas corpus ad prosequendum was the equivalent of a detainer. Id. The latter ruling was made in the face of a split of opinion in the federal circuit courts of appeals. Compare, Ridgeway v United States, 558 F2d 357 (CA 6, 1977), with United States v Mauro, 544 F2d 588 (CA 2, 1976), the latter holding that such a writ constitutes a detainer. In 1978, the United States Supreme Court resolved the split in United States v Mauro, 436 US 340; 98 S Ct 1834; 56 L Ed 2d 329 (1978), a case in which the federal government filed three writs of habeas corpus ad prosequendum with state authorities. The Court held that "a writ issued by a federal court to state authorities, directing the production of a state prisoner for trial on criminal charges, is not a detainer within the meaning of the [act] and this does not trigger the application of the [act]”. 436 US 340, 348. However, the "United States is bound by the [act] when it activates its provisions by filing a detainer against a state prisoner and then obtains his custody by means of a writ of habeas corpus ad prosequendum”. Id. The Supreme Court’s holding was necessarily limited to the issüance of a writ by federal authorities. The case at bar presents a similar question, however, albeit here the state is seeking the production of a federal prisoner. On the question whether defendant was produced in recorder’s court pursuant to the IAD, he argues that the October 1975 DPD letter to the Cameron County, Texas, sheriff constituted a detainer, as did the January 30, 1976, LEIN message and the February 2, 1976, letter to the federal authorities at Terre Haute. Certainly, none of the written communications on which defendant relies suffers from being labeled a writ of habeas corpus ad prosequendum. However, the letter to the Texas sheriff cannot constitute a detainer because defendant was not then serving a sentence under a federal conviction. Article IV of the IAD references the lodging of a detainer only to prisoners who are "serving a term of imprisonment in any party state”. Further, the definition of a detainer which we quoted above states that it is a "notification filed with the institution in which a prisoner is serving a sentence”. Finally, this Court previously considered a similar question, and there stated: "Consistent with its purposes, the Agreement does not apply unless the prisoner is actually serving a term of imprisonment”. People v McLemore, 95 Mich App 536, 547; 291 NW2d 109 (1980). The LEIN message and the letter to the Terre Haute officials do not suffer from the same infirmity; defendant was then serving a federal prison sentence. Further, both the message and the letter advised the Terre Haute officials that defendant was wanted to face charges in Michigan. Without more, such would suffice under the above-quoted definition of a detainer. The two documents went further, however, and advised the federal authorities that defendant would be returned under the IAD. The second letter even stated that the enclosed warrants were to be "lodged as detainers against” defendant. The language quoted above obviously triggered an application of the IAD. The notice to defendant from his prison counselor that he now had an official detainer is reflective of the effect the message and letter had on the Terre Haute officials. Since it is the uncertain status of prisoners with detainers lodged against them which the IAD seeks to remedy, any other conclusion would contravene the intent of that legislation. The prosecutor argues, however, that, notwithstanding the DPD’s decision to proceed under the IAD, once the writ of habeas corpus ad prosequendum was filed, the intent to use the act was abandoned. We cannot agree. As the United States Supreme Court stated in Mauro, supra, once a detainer is lodged against a prisoner, the act "by its express terms becomes applicable and the [filing state] must comply with its provisions”. 436 US 340, 361-362. II Having concluded that the IAD was invoked by the language of the 1976 written communications to the authorities at Terre Haute, we must now consider whether the failure to note the charges in docket no. 77-2585 in such letters operates to preclude an application of the IAD to that "case”. It will be remembered, as well, that the first writ of habeas corpus ad prosequendum issued by the Michigan authorities likewise failed to mention the third warrant. In considering this question, we are forced to acknowledge that, but for the fact that defendant was transferred to Milan and then to recorder’s court pursuant to a detainer which did trigger an application of the IAD, the prosecutor would not have been able to try defendant then on the charges contained in the third warrant. Article V(d) of the; IAD states that "[t]he temporary custody referred to in this agreement shall be only for the purpose of permitting prosecution on the charge or charges contained in one or more untried indictments, informations or complaints which form the basis of the detainer or detainers or for prosecution on any other charge or charges arising out of the same transaction(Emphasis supplied.) Thus, if the third warrant involved charges arising out of the same transaction as one or both of the noted warrants, defendant could have been tried thereunder pursuant to the IAD. Our review of the lower court files reveals that the three warrants arose out of three different criminal transactions occurring on January 19, 1974 (number 74-05793), April 11, 1974 (number 74-04988), and May 21, 1974 (number 74-05901). Consequently, we must determine if a violation of Article V(d) occurred and was preserved by defendant. Under the clear terms of Article V(d), a violation occurred in this case. However, we are not convinced that defendant preserved that violation. A violation of the agreement does not divest the trial court of jurisdiction over the subject matter of the case. State v Casuso, 253 NW2d 919, 921 (Iowa, 1977). It is a defense which must be raised before or during trial or it is waived. Christian v United States, 394 A2d 1 (DC App, 1978), cert den sub nom Clark v United States, 442 US 944; 99 S Ct 2889; 61 L Ed 2d 315 (1979). Because defendant did not raise this violation below, or even on appeal, he has waived it. The practical consequence of the waiver must now be determined. The IAD, Article V(d), states that the temporary custody provided in the IAD is only for purposes of prosecution of charges on which a detainer has been lodged. Of necessity, the protections offered by the IAD are also only applicable where the defendant is prosecuted on charges on which a detainer has been lodged. Thus, when defendant was arraigned, etc., on the third warrant, without an objection based on Article V(d), that case may be said to have been prosecuted outside of the IAD. We express no opinion on the question whether a defendant who does object on such grounds is still entitled to the protections of the IAD. We only say that, if such protections were not applicable in such cases, the way would be open for prosecutors to file detainers on the least serious charge pending against a prisoner and then proceed on numerous other more serious warrants after the defendant is within the jurisdiction, without concern for the protections offered by the IAD. Our conclusion that in this case defendant waived any right to the protection of the IAD does no violence to the purposes of the IAD; nor does it divest defendant of all protection. However, in this case, the above conclusion does result in the finding that defendant’s motion to dismiss the charges in docket no. 77-2585 was properly denied by the trial court. Ill Having decided that defendant was entitled to the protection offered by the IAD in docket nos. 78-3658 and 78-3659, but not in docket no. 77-2585, the next issue for our consideration is the effect of a stipulation signed by defendant and his attorney which purported to waive defendant’s right to trial within 180 days under Article III, and his right to trial within 120 days under Article IV, but which further stated that defendant did not waive any jurisdictional rights already asserted in his motion to dismiss. The stipulation was clearly signed before the motion to dismiss was ruled upon. In his argument on appeal, defendant does not address the effect of the stipulation on his IAD rights. Nonetheless, the issue is crucial to a proper resolution of this case. Indeed, the prosecutor argues on appeal that, notwithstanding the application of the IAD to docket nos. 78-3658 and 78-3659, defendant’s waiver operates to bar his asserted right to a speedy trial under either Article III or IV of the IAD. While the effect of a waiver on Article III or IV rights does not appear to have been considered by Michigan courts, there are several federal cases which are informative. In Gray v Benson, 443 F Supp 1284, supp’d 458 F Supp 1209 (D Kan, 1978), aff'd 608 F2d 825 (CA 10, 1979), the court considered whether a defendant’s right to trial before return to the original place of imprisonment was waived by his subsequent guilty plea. After finding that the IAD had been violated by such a transfer, 443 F Supp 1284, 1293, the district court requested additional briefs on the waiver issue. 443 F Supp 1284, 1294. Subsequently, in the supplemental opinion, the conclusion was reached that the right to trial before return is waivable by the prisoner. The most cogent reasons for that ruling were: (1) that otherwise a prisoner could not request pretrial return for any legitimate purpose "since it would result in automatic dismissal of the indictment”, 458 F Supp 1209, 1212; and (2) that, if such "fundamental, constitutional rights as the right to counsel or trial by jury” could be waived, it would be anomalous not to recognize waivers of IAD rights. 458 F Supp 1209, 1213. The Gray court also addressed the manner in which a waiver could be effected. In this regard, it noted that "Article IV(e) of the IAD amounts to nothing more than a procedural rule and the right it protects in no way affects the fairness and accuracy of the fact-finding procedure. Nor does it preserve or affect other due process or trial rights. Rather, it involves an unrelated right to rehabilitation without interruption in connection with incarceration on a prior sentence. Thus, a claim under IV(e) can hardly be construed as jurisdictional”. 458 F Supp 1209, 1213. In United States v Eaddy, 595 F2d 341 (CA 6, 1979), the issue of waiver was analyzed as follows: "Despite the mandatory language of Article IV, the rights created by the Agreement are for the benefit of the prisoner. They exist for his protection and are personal to him. (Citations omitted.) We conclude, therefore, that the rights of a prisoner under the Agreement may be waived. "* * * We also hold the substantive rights accorded to a prisoner under Article IV may be waived, even though the prisoner is not aware of those rights, where there is an affirmative request to be treated in a manner contrary to the procedures prescribed by Article IV(c) or (e).” (Citations omitted.) 595 F2d 341, 344. Both in Gray and in Eaddy, the courts focused on the purpose of the IAD in determining whether a waiver of rights could be effected. Such analysis began with the proposition that the IAD is designed to protect a prisoner’s "right” to uninterrupted rehabilitation, and "right” to have charges outstanding in other jurisdictions (on which detainers were filed) finally disposed of so that the prisoner could return to the original place of imprisonment with certain knowledge of the outcome of such charges. As such, it is not difficult to accept that the right to trial before return might be waived by a prisoner whose priorities require a return before trial. Similarly, the right to trial within a certain number of days may likewise be waived, for reasons which are similarly high on the prisoner’s priorities. Certainly, our own 180-day rule, MCL 780.131; MSA 28.969(1), may be impliedly waived by the defendant if the case stands ready for trial within that time, but the "defendant’s delaying motions” cause a sufficient delay to preclude trial from commencing before the end of that period. People v Hendershot, 357 Mich 300, 304; 98 NW2d 568 (1959). Thus, we conclude that defendant waived his rights under both Articles III and IV(c). IV The stipulation which was signed by defendant and his attorney in all three lower court cases stated that defendant waived his right to trial within 180 days under Article III, as well as his right to trial within 120 days under Article IV(c). Clearly, then, defendant waived whatever claim he had regarding trial within 120 or 180 days under the IAD. Noticeably absent from the stipulation was any waiver of defendant’s right to trial before return to his original place of imprisonment. And yet, he was returned to Terre Haute before trial, and he raised this fact as a basis for dismissal in his motions. The right to trial before return is mandatory in the IAD. People v Beamon, supra, 134. Consequently, we conclude that the charges upon which detainers were lodged were properly dismissed by the lower court. V The prosecution argues that, notwithstanding defendant’s return to Terre Haute before trial, dismissal was improper because: (1) defendant was always in federal custody, as a federal marshal prisoner, and never was housed in a state facility, so his return to Terre Haute should not be charged to the state; (2) defendant never waived extradition as required by Article 111(e); (3) the IAD was never triggered because the IAD forms were never used; and (4) federal officials transferred defendant back to Terre Haute in furtherance of the overriding purpose of the agreement: uninterrupted rehabilitation. Defendant was transferred back to Terre Haute at a time when trial was not scheduled to begin for another four months. Testimony at a federal court hearing in a simultaneously ongoing case involving this issue indicated that defendant’s transfer was initiated by a United States deputy marshal who thought that he had received authorization for such a move from an assistant prosecuting attorney. Because the state’s attorney was, without question, in Europe when the transfer was initiated, we are left only with the knowledge that the move was partly at the behest of federal officials. Where the transfer back is not done at the request of defendant or his attorney, we believe that the state should be charged with the responsibility therefor. In no other way can the defendant’s right to final disposition before return be adequately safeguarded. This is not to say that, if absolute proof were given that the state authorities had nothing to do with the transfer and in fact attempted to stop it, another result might be reached. However, in this case, the federal mar shal apparently received permission to transfer defendant from Milan to Terre Haute from someone in the prosecutor’s office. Thus, because defendant did not request or clearly acquiesce in the transfer and because the state has not established that the transfer was effected against its wishes, the failure to try defendant before returning him to Terre Haute constitutes a violation of Article IV(e) of the IAD. See, e.g., United States v Sorrell, 413 F Supp 138, 141 (ED Pa, 1976), aff'd 562 F2d 227 (CA 3, 1977), cert den 436 US 949; 98 S Ct 2858; 56 L Ed 2d 793 (1978), where the district court ruled that "[i]t matters not, as we see it, what the purpose of the transfer was”. See, also, People v Lincoln, 42 Colo App 512; 601 P2d 641 (1979), where the court stated that the receiving state bears the burden of proving the sending state’s compliance with the IAD in an analogous situation. We also reject the prosecutor’s assertion that, because defendant was always in federal custody, in Terre Haute and in Michigan, the return to Terre Haute cannot be charged to the state. As was said in People v McLemore, supra, 546-547: "The argument that the Agreement does not apply because no change of custody actually took place is without merit. * * * [Pjhysical custody does not have to change hands when a federal prisoner is involved. Article V(a) specifically provides that a federal prisoner may be brought to the place of trial while remaining in federal custody.” The prosecutor’s second and third assertions with regard to the transfer back before trial is that the IAD is inapplicable because defendant never waived extradition under Article 111(e) and because the IAD forms were never used. The extradition argument is without merit. Article 111(e) states that, if a prisoner requests final disposition of charges on which a detainer has been lodged [such request being made under Article 111(a)], the request shall be deemed a waiver of extradition. This language does not require a defendant to waive extradition. Neither does Edmond v Dep’t of Corrections, 78 Mich App 196; 259 NW2d 423 (1977). In Edmond, a Florida detainer was lodged against plaintiff, a Michigan prisoner, but no further action was ever taken. When plaintiff sued for a writ of mandamus directing the Michigan Department of Corrections to strike the detainer from his records, this Court ruled that such writ could not be issued because plaintiff never invoked his right to final disposition under Article III. 78 Mich App 196, 203-204. There was no question in Edmond whether the IAD was violated by a pretrial return of a prisoner to his original place of imprisonment. There, plaintiff was seeking to enforce rights arising under Article III rather than Article IV. These two articles are directed at opposite sides of the same coin. Article III provides a means by which the prisoner can expedite a final disposition and sets forth remedies for those cases in which the prosecutor does not proceed upon the detainer. Article IV provides the means by which the prosecutor may secure defendant’s presence at trial and likewise sets remedies if the prosecutor does not follow up on his initial efforts. Thus, under Article 111(e), the prisoner who requests final disposition is presumed to have waived extradition. Under Article IV, when the prosecutor lodges a detainer and then requests temporary custody, waiver of extradition is not required. Rather, once a request for temporary custody is made, Article IV(a) provides a 30-day period in which the governor of the sending state may disapprove the request on his own motion or upon motion of the prisoner. In this way, a prisoner contests transfer; if no motion is made within 30 days, it is apparently assumed that the prisoner has no objection to the move. We likewise reject the prosecutor’s suggestion that, because the state did not use "IAD forms” to process defendant’s return to Michigan, defendant should not be benefitted by an application of the IAD’s prohibition on return before trial. This argument, if accepted, would emasculate the entire agreement. Once a detainer is lodged, the IAD is triggered. This is because it is the detainer’s effect on a prisoner’s rehabilitation program which the IAD was intended to correct. Were we to hold that the prosecutor’s failure or refusal to use "IAD forms” operates to deprive defendant of the benefits of the agreement, we would be placing defendant at the mercy of the prosecutor. The final basis on which the prosecutor asserts that the IAD is inapplicable is that the transfer back was made in furtherance of the IAD’s purpose: uninterrupted rehabilitation. As we concluded above, however, the purpose of the transfer does not matter. Defendant’s rehabilitation had already been interrupted by his transfer to Milan from Terre Haute. At that point, the purpose of the IAD is to secure trial on pending charges on which a detainer has been lodged in order that the prisoner may be returned to his original place of imprisonment as soon as possible. However, when defendant was returned to Terre Haute before trial, the detainer was still lodged against him, and any attempts to continue rehabilitation would be restricted by that fact and the fact that defendant was surely going to be returned to Michigan within four months. If defendant had acquiesced in this situation, the result might be different. Because he did not, we conclude that Article IV(e) of the IAD was violated and the charges in docket nos. 78-3658 and 78-3659 were properly dismissed. VI Our docket no. 77-2585 was assigned to be heard by Judge Donald L. Hobson, a common pleas judge sitting in recorder’s court pursuant to a Supreme Court assignment. On March 15, 1977, defendant moved to disqualify Judge Hobson on the basis that he was not properly elected to recorder’s court. Defendant now claims error in the denial of that motion. MCL 600.225(l)(c); MSA 27A.225(l)(c) empowers the Supreme Court to "direct and compel a judge of any court * * * to serve as a judge in any court in which by law he is authorized to act as judge”. Both the common pleas court and recorder’s court, and the judges thereof, are included in this power. Under subsection 2 of that statute: "The supreme court shall have the power to direct and compel the judge of any municipal court who is an active member of the state bar of Michigan or any district court judge to serve as a judge of the recorder’s court of the city of Detroit. Each judge so designated shall hold court and perform the duties of the office just as he would had he been elected to such recorder’s court for the time he is designated to serve. A municipal court judge shall be limited to trial and other proceedings wherein elected recorder’s court judges act in a magisterial capacity exercising jurisdiction comparable to that formerly cognizable by a justice of the peace. A district court judge so designated shall exercise the same jurisdiction as exercisable by a judge of the recorder’s court of Detroit.” Thus, the question is whether a common pleas judge is the equivalent of a municipal court judge or a district court judge. If the former, the common pleas judge may only exercise jurisdiction comparable to that formerly cognizable by a justice of the peace. If the latter, the common pleas judge’s jurisdiction is the same as that exercised by any recorder’s court judge. Pursuant to 1929 PA 260, MCL 728.1 et seq.; MSA 27.3651 et seq., the courts of justices of the peace in any city having more than 250,000 inhabitants were consolidated into one court entitled the common pleas court. MCL 728.1; MSA 27.3651. Such common pleas courts "shall have and exercise jurisdiction in all suits and proceedings, both civil and criminal, to the same extent as was had and exercised by the justices of the peace of such city immediately prior to the consolidation of the courts”. Thus, the common pleas court was comparable to a justice court. Because justices of the peace were abolished when MCL 600.9921; MSA 27A.9921 was enacted, and replaced by district courts, MCL 600.9922; MSA 27A.9922, however, it seems reasonable to conclude that the common pleas court is now the equivalent of a district court. This conclusion is consistent with MCL 600.8105; MSA 27A.8105, which states that no district court judges shall be elected in any district in which there is a common pleas court. As such, we find that the assignment of a common pleas judge to recorder’s court was within the Supreme Court’s power under MCL 600.225(2); MSA 27A.225(2), and that such judge was empowered to try defendant on first-degree murder and rape charges. VII On April 23, 1976, recorder’s court judge Borman entered a discovery order which directed that defendant’s attorney "be permitted, forthwith, to inspect and make copies of those items set forth in [defendant’s discovery] motion, at defendant’s expense”. As regards this issue, the motion requested discovery of "all written statements made by or taken from witnesses or other persons having knowledge of the matters alleged in the information”. Defendant now asserts a violation of this order because the prosecution never turned over to defendant a taped interview with Michael Champion, a key prosecution witness who was an accomplice in the murder and rape with which defendant was charged. The prosecutor counters defendant’s assertion by stating that, because defense counsel never requested "aural” or "video” recordings of any witness and the order did not include such material, no error occurred. _ In People v Florinchi, 84 Mich App 128, 134-135; 269 NW2d 500 (1978), lv den 405 Mich 828 (1979), the prosecutor represented that he would furnish the defendant with all police reports. This Court held that, based on that representation, the prosecutor was bound to interpret the term "police reports” broadly to include tip sheets. Pertinent to that holding is the fact that the trial court denied the defendant’s discovery because of the prosecutor’s promise. On page 135 the Court stated: "Once the prosecutor represented to the trial court that he would furnish defendant with all police reports, he became bound, in the interest of fundamental fairness and in view of his duty to see justice done, to place a broad interpretation on the term 'police reports’, and to err on the side of giving away too much rather than too little. He is not free, as he did here, to avoid a discovery order by agreeing to voluntary discovery, then to argue that defendant is not entitled to discovery or that materials within his control are not covered by the agreement because they are denominated 'tip sheets’ rather than police reports.” The present case is distinguishable. The prosecutor did not avoid a discovery order by promising to furnish "written statements”, only to later deny defendant the tape. The discovery conducted was framed by defendant’s own motion. It permitted the inspection and copying "of those items set forth in [defendant’s] motion”. Defendant’s motion for discovery requested, among other things, "[a]ll written statements * * * taken from witnesses or other persons having knowledge * * It did not include the tape in question._ The trend in Michigan and other states is toward broader criminal discovery. Thus, the prosecutor is not merely a participant in a contest, but is one with a duty to seek justice. People v Farrar, 36 Mich App 294; 193 NW2d 363 (1971). Nonetheless, our courts have repeatedly stated that the prosecution is not required to simply turn over his entire file to the defense. See, e.g., People v Losey, 98 Mich App 189; 296 NW2d 601 (1980). We do not want to encourage the police and prosecutors to look for loopholes in discovery orders. But by the same token, it does not ask too much to require defense counsel to state with some clarity just what is being sought. Defense counsel was in the driver’s seat here — the trial court granted his motion in toto. Under these facts, where the defendant, in effect, wrote the discovery order, the prosecutor was not required to furnish the Champion tape to defense counsel. Affirmed. Bashara, J., concurred. The rape charge was brought before the criminal sexual conduct statutes, 1974 PA 266; MCL 750.520a et seq.; MSA 28.788(1) et seq., became effective on April 1, 1975. Pursuant to Article 11(a), a "state” includes the United States, the District of Columbia, a territory or possession of the United States, or the Commonwealth of Puerto Rico. In Lincoln, defendant sought a dismissal of certain charges on which a detainer had been filed because the prison officials had never advised him of the detainer or of his right to request final disposition of the charges. 42 Colo App 512. The Colorado Court of Appeals ruled that, between the prisoner and the state, "[t]he purpose of the Agreement requires that the adverse consequences of official oversights be visited upon the prosecution, not upon the prisoner. Only in this way can the goals of the Agreement be achieved by requiring the officials concerned to learn of their duties under the Agreement, and to perform them conscientiously”. 42 Colo App 512. MCL 600.9921; MSA 27A.9921 also abolished municipal courts, except as provided in MCL 600.9928; MSA 27A.9928 and MCL 600.9930(8); MSA 27A.9930(8). This further strengthens our opinion that the common pleas court is comparable to the district court, since the common pleas court was retained despite abolition of most municipal courts. The prosecutor also notes that defendant made two motions before this Court on the issue of Champion’s statements, both of which were denied. In the first, defendant moved for remand for an evidentiary hearing under GCR 1963, 817.6. By order dated May 14, 1979, the motion was denied for lack of merit in the grounds presented. This order does not affect our review. The second motion, denied on June 19, 1979, requested an additional transcript of testimony regarding Champion’s statements and the loss of the tape. This order does not affect our review of the issue.
[ -9, -3, 62, 3, -49, -50, -80, -22, -57, 37, -29, -4, -45, 15, 11, 40, 52, 39, 96, -48, -43, -3, -14, 92, -25, -55, 18, -17, -11, 21, -37, -9, 56, -63, 30, -2, 39, 8, 67, 26, -44, 47, -27, -2, -16, -27, 23, 19, 22, -43, -26, -39, -10, -24, -37, 34, 3, -27, 69, 24, -36, 57, -37, 25, -8, -6, 1, 13, 39, -4, -7, -56, -28, 42, 44, 43, -35, -31, 41, -6, 12, 62, 0, 39, 22, 36, -35, -20, 20, 6, 1, -10, -60, -41, 62, 20, 7, -35, 6, -2, -45, -22, -29, -37, 8, 10, 4, 13, 16, -11, 68, 0, 36, 0, -11, -72, -13, -43, -11, 22, -12, 56, 38, 52, 29, 0, -6, 0, -16, 32, -12, 1, 51, -55, 31, 20, 23, 18, -14, 1, 34, 36, 9, 64, 14, -1, 40, -4, 23, 69, -19, 22, -16, -19, 16, -13, 59, -35, -40, 56, 0, -27, 15, -18, 25, -22, -9, 2, -6, 5, 7, 9, 32, 88, 29, -44, -40, 52, -20, -14, -42, 20, 0, -17, 18, -2, 60, 21, -67, 11, -24, -9, 8, -19, 23, 11, 32, 3, 1, 36, 12, -43, 22, 39, 13, -57, -5, -2, 33, 36, -25, -12, -21, 12, -10, -24, -30, -6, 8, 19, -18, -15, 36, -10, -1, 7, -19, 46, 34, -15, 25, 0, 22, 13, -50, -14, 26, 3, 14, 26, -22, 3, -10, -9, 9, 84, 30, -22, 22, -23, 14, 29, -21, -39, -29, -30, 12, -36, 9, 56, 7, 26, -10, 27, -55, 51, -18, -32, -26, 36, -23, 3, 16, 15, -20, 4, 11, 28, 34, -5, 12, 6, -44, 6, -3, -43, -1, 3, 31, -15, -10, 7, -64, 7, -23, -9, 15, -47, 21, 2, 3, -24, -14, -48, -1, -63, 48, -18, -42, -11, 82, 17, 52, 14, 38, -17, 10, -14, 26, -36, -68, 5, 6, 13, -7, 37, 43, 30, 12, -27, 17, 32, 15, -23, -44, 58, -18, 22, -27, 4, 1, -20, -54, 15, -17, -34, 10, 56, -20, 4, 12, -11, 19, -15, -40, 15, -8, -11, 3, 33, 3, -32, 2, 35, 41, 1, 8, 8, 30, -18, 15, -16, -31, -5, 15, 24, 13, -43, 31, 8, -25, -40, -3, -5, 16, -4, -45, -44, 37, -1, -10, -17, 27, -12, -8, -51, -25, 11, 41, 21, -13, 5, 47, 10, -50, 16, -31, 1, -3, -27, 39, -4, 18, 74, -16, -26, -43, 30, -45, -50, 46, -33, -19, -51, 20, 61, 12, 17, 79, -13, -14, 14, 8, -33, -1, 39, -11, -23, -27, 23, -49, -61, -1, 19, -31, -55, -14, -32, 24, -8, 11, -8, -6, -12, -77, 11, 44, -1, 0, -18, 9, -19, -51, 12, -41, -2, -37, 33, 4, -1, 3, 2, 5, -13, -26, 0, 7, 24, 1, -19, 19, 15, -27, 48, 23, 42, 3, -65, 14, 30, -22, -16, -9, 18, -3, 1, -26, 4, -5, -3, 14, -36, 43, 22, 29, 2, 4, 5, 17, 35, -8, -11, -49, -21, -51, 11, -23, -30, 9, -7, 46, -26, 28, -22, -22, 14, -6, -28, -19, 28, 35, 13, 0, -67, 39, -14, -77, 30, -13, -42, 10, -2, 22, -13, -31, 0, -24, -14, 14, 6, -16, -35, -22, -34, -12, -9, -12, 24, -12, -25, -14, -17, 41, 30, -1, 10, -29, -46, 47, -6, -15, 53, 54, 25, 18, 7, -9, 38, -11, 56, -43, 33, -20, 48, -29, -51, 47, 5, 2, 9, -33, 12, 34, -12, -2, 8, -36, -35, -42, -44, 30, 20, 26, 17, 39, 26, 17, -9, 32, -28, 29, 12, -20, -31, -50, 2, 10, -16, -55, 1, -40, -41, -66, 36, 33, -38, -7, -22, 36, 35, -26, -48, -17, 6, -22, 27, -28, -12, -32, 29, -37, 47, 14, 7, 25, -34, -26, -38, -10, -35, -19, 26, 11, 15, -28, 16, -35, -36, 26, -13, 17, 25, -61, 4, 8, -23, 19, -17, 58, 13, -2, 25, 28, -19, -19, -18, -59, 20, 31, 12, 18, 27, -22, -33, 32, 54, 45, -17, -32, 40, -12, 87, 0, 9, -37, 9, -11, -11, -43, -18, 8, 14, -47, 18, -28, 5, 7, -51, -5, 0, -20, 29, -43, -9, 22, -16, -5, -35, -11, 13, -16, 34, 1, 0, 13, 47, -41, 25, 10, -49, 27, 1, 30, -24, 3, -1, -77, -17, -17, 68, -32, -15, -41, -90, -16, -21, 21, -3, -3, -2, 62, 17, 44, 23, -37, -12, 51, -48, -31, -7, 12, -63, 5, -2, -44, -1, -3, -5, 34, 2, -41, -16, 23, 25, 19, 7, -41, 12, 25, -34, -32, 13, -74, 0, 52, -4, -46, -2, -52, -35, 47, -17, 29, -19, 30, 23, 32, -7, -20, 7, 33, 13, -4, 3, 10, 25, 14, -13, 23, 56, 25, -3, -25, -7, 13, 5, -5, -50, 2, -2, -21, 17, -19, 42, -6, 11, 37, 6, -17, 48, -2, -41, 3, 46, -16, -22, 33, 14, 2, 4, -12, -19, 24, 6, -7, 26, 35, 6, -1, -27, 27, -4, -29, -3, -31, 12, -16, 12, 0, -7, -11, 20, 13, -60, -33, 16, 9, -22, 43, 39, 21, 5, 8, 56, -22, 20, 32, -4, -7, 1, 14, -54, -2, 26, -8, -36, -45, -42, 4, -10, -12, 53, -14, 4, -10, 14, 0, 14, 24, 14, 17, -16, -2, 12, -4, -43, 19, -7, -69, -29, 12, -11, 56, -11, 4, -6, -27, -33, 62, -17, 16, 6, 7, 48, 33, -69, 5, -12, -10, 55, 4, 32, -41, -67, -14, -39, 35, -18, -4, 36, -3, 1, -66, 25, -23, 24, 10, 7, -3, 23, -12, -59, 19, 9, 29, 10, -14, 15, -42, 38, 4, -6, -12, 22, 12, 2, -43, 46, -6, 9, -5, -15, -39, -43, 24, -46, -15, 7, -15, -13, -21, -44, -14, 11, 24, 23, 21, 24, -12, 29, -28, -17, 11, 9, -26, 49, -10, 21, -30, 11, -12, 46, -21, 47, -5, 19, -11, -12, -31, -23, 17, -11, -30, -36, -3, -2, -8, 25, -36, -25, -29, 24, -9, 0 ]
Cynar, J. This lawsuit allegedly involves a personal injury claim arising out of an automobile accident which occurred in Detroit. Defendant-appellant Braziel Carreker (hereinafter defendant) alleges that the accident occurred on May 9, 1975. The complaint was filed on May 5, 1978, in Wayne County Circuit Court. Service of process on defendant was not obtained until June 17, 1979. Defendant moved for accelerated judgment on September 7, 1979, on the grounds that the summons had expired. The motion was denied by the trial court. This Court granted defendant’s application for leave to file an interlocutory appeal of the order denying the motion for accelerated judgment on October 8, 1980. The question presented by this appeal is whether amendments to GCR 1963, 102, regarding expiration of a summons, apply to an action pending on the date the amendment took effect where such an application would automatically defeat plaintiffs’ claim against defendant. Before the 1979 amendments to GCR 1963, 102 took effect, subrules 102.4 and 102.5 read as follows: ".4 Expiration. No summons shall be valid for longer than 180 days from the date of the filing of the complaint with the court. Duplicate summons shall not have the effect of extending the expiration of the original summons. ".5 Dismissal of Action, Defendants Not Served. Every action shall be dismissed, without prejudice, as to any defendant in the action who has not been served with process personally, by substituted service or by publication within 180 days from the date of the filing of the first complaint in the action with the court unless that defendant has filed any pleading in the action within that period of time, in which event, the action shall not be dismissed as to that defendant. "(1) Upon the expiration of 180 days from the date of the filing of the first complaint in the action with the court, the clerk of the court in which the complaint was filed shall examine the court records in the action and, if he determines that any defendant in the action has not been served with process within that period of time, he shall automatically enter an order of dismissal as to that defendant as provided above. This sub-rule shall not apply if that defendant has filed any pleading in the action within that period of time. "(2) Notice of the entry of the order of dismissal shall be given by the clerk of the court as provided by rule 107 but failure to give such notice shall not affect the dismissal.” Under the old rule, a plaintiff had 180 days after the complaint was filed to serve summons on the defendant. If 180 days had expired before the summons was served, the summons would remain viable and plaintiff could validly obtain service until the date the clerk of the court entered an order of dismissal. Goniwicha v Harkai, 393 Mich 255, 257; 224 NW2d 284 (1974). Under the old rule, the summons would have still been good at the time it was finally served on defendant even though service was allegedly obtained on June 17, 1979, more than 180 days after the filing of the complaint on May 5, 1978, because, apparently, the court clerk never entered an order of dismissal after the 180-day period had expired. In Brashers v Jefferson, 402 Mich 399; 263 NW2d 243 (1978), the Supreme Court affirmed its holding in Goniwicha v Harkai, supra, that GCR 1963, 102 was not self-executing. However, the Court appended to its decision a proposed amendment to rule 102 recommended by the committee to review and consolidate the court rules. Similar amendments were adopted and took effect on April 15, 1979. The new subrules 102.4 and 102.5 read as follows: ".4 Expiration. A summons expires 180 days after the date the complaint is filed unless the judge, within that 180 days, orders a second summons to issue for a definite period not exceeding one year from the date the complaint is filed. The judge may impose just conditions on the issuance of the second summons. Duplicate summonses, ordinarily issued, do not extend the life of the original summons. ".5 Dismissal of Action, Defendant Not Served. "(a) 180 days after the first complaint in the action is filed, or if the court has extended the time for service under subrule 102.4, on the expiration of the period as extended, "(1) an action is deemed dismissed without prejudice as to a defendant who has not been served with process under rule 105 or 106, unless the defendant has submitted to the court’s jurisdiction; and "(2) the clerk shall examine the court records and enter an order dismissing the action as to a defendant who has not been served with process or submitted himself to the court’s jurisdiction. "(b) The clerk’s failure to enter a dismissal order does not continue an action deemed dismissed. The clerk must give notice of the entry of a dismissal order under rule 107 and record the date of the notice in the case file. The failure to give notice does not affect the dismissal.” If the amended subrules are controlling, the summons would have automatically lapsed when the amendments took effect because more than 180 days had already passed since the filing of the complaint. Thus, defendant would have been entitled to accelerated judgment on grounds of the statute of limitations. GCR 1963, 116.1(5). This case would be deemed automatically dismissed even though the court clerk failed to enter a dismissal order. The court would not have jurisdiction to set aside the dismissal because the conditions in subrule 102.6 were not met, and a new complaint could not be filed because the period of limitations would have expired May 9, 1978. MCL 600.5805(8); MSA 27A.5805(8). Defendant argues that the new rule should control. Thus, argues defendant, the trial court’s order denying accelerated judgment was erroneous and should be reversed. The general rule is that changes in judicial procedure apply to all further proceedings and actions then pending. Jinkner v Widmer, 3 Mich App 155; 141 NW2d 692 (1966), Reid v AH Robins Co, 92 Mich App 140; 285 NW2d 60 (1979). Under the general rule, the action was certainly still pending since no dismissal could occur until the court clerk entered a dismissal order under the old rule. Plaintiffs argue that GCR 1963, 14 provides an exception to the general rule. Rule 14 states that: "These rules will take effect on January 1, 1963. They govern all proceedings in actions brought after that date and also all further proceedings in actions then pending except to the extent that in the opinion of the court their application in a particular action pending when the rules take effect would not be feasible, or would work injustice, in which event, the former procedure applies.” See Emahiser v Common Pleas Judge, 18 Mich App 295; 171 NW2d 47 (1969). Plaintiffs contend that applying the amended rule "retroactively” would constitute an injustice because automatic dismissal of their cause of action would result. We disagree. Defendant correctly points out that, from November 5, 1978, on, the only thing saving plaintiffs from the same fate under the old rule was the court clerk’s failure to enter a dismissal order. If that occurred before plaintiffs had served defendant, plaintiffs’ cause of action would be barred just as certainly as it would be under the current rule. Under the new rule, plaintiffs would have to act to extend the life of the summons while the summons was still viable. Therefore, the court clerk’s nonfeasance was the only contingency saving plaintiffs’ cause of action. The commentary to the court rules in Honigman & Hawkins indicates that rule 102 was amended to remedy "the apparent unfairness of extending the life of those cases which were indistinguishable from others save for the fact that the clerk had failed to perform a ministerial act”. 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), 1980 Pocket Part, p 15. Plaintiffs’ argument would defeat the logic behind the amendments. In our view, it was the former rule rather than the amended rule that worked an injustice. Indeed, that is apparently why the Supreme Court published the proposed amendment in Brashers. In the instant case, it is plaintiffs’ own neglect that has cost them their cause of action since notice of the pending rule change was available as early as the publication of Brashers. We note that in Slem v David, 96 Mich App 721; 293 NW2d 689 (1980), this Court concluded in dicta that since that case arose under the original version of GCR 1963, 102, the April, 1979 amendments were not controlling. Slem is distinguished from the instant case because there the motion for accelerated judgment was brought prior to the effective date of the amendments. The trial court’s denial of defendant’s motion for accelerated judgment is reversed since this action was pending when the applicable court rule took effect.
[ -44, 32, 22, 54, 24, 6, 17, -56, -5, 55, -25, -5, -21, -49, -15, 0, 32, 2, 9, -27, -15, -20, -2, -4, -13, -10, -18, -70, -12, 23, -23, -47, -26, 21, -18, -41, 34, -22, 22, 46, 2, -33, -36, 34, -44, -58, 16, 43, 3, 3, 14, 18, -18, 6, -48, -9, 6, -22, 7, 13, -47, 25, 9, 17, -13, 54, 39, 35, -10, -50, -30, -16, 40, -10, -8, -4, -13, 15, 24, -24, 4, -32, 43, 0, 41, 12, 8, -20, -11, -44, -40, 19, -32, -28, -10, 13, 21, 7, 8, -45, -19, 19, -23, -2, 23, 13, -49, -45, -70, -16, 43, -22, 19, -21, 10, -12, -4, 2, 30, 0, 18, -27, 34, 28, 10, 1, -10, 11, 36, 49, 2, 27, 27, -26, 18, 23, 50, -22, 11, -17, 39, -14, 14, -29, 4, -14, 37, 8, 24, -26, -27, 23, -25, 17, -37, 38, 5, -33, 23, 3, 48, -27, -6, 6, -9, -12, -53, 7, 23, -26, 15, -36, 65, -4, 16, 7, -28, 20, -29, 34, -25, 19, -11, -3, 32, -6, -22, -18, 20, 5, 10, -33, 25, 18, 19, 3, 23, 29, 37, 24, 24, -38, 38, 8, -2, -4, 20, -4, 15, 70, -48, -52, -11, -26, 13, -19, 45, -14, -14, 37, -2, -20, 17, -42, 0, -12, -9, -28, 41, 18, 26, 28, 8, 23, -49, 19, 52, -1, 12, -8, -20, -9, 25, -28, -20, 60, -27, -24, 41, 2, 55, -4, -21, -35, -16, -35, 5, -43, 14, 10, 11, 60, -28, -34, -2, 16, 34, 0, -26, -26, -4, -12, 6, 37, 12, -49, 0, -9, 32, 34, -45, 5, -45, -16, -13, 23, 28, 4, -12, 15, -42, 22, -35, 66, -27, -1, 29, -4, 34, 38, -12, 3, 4, -3, 0, -58, -60, -29, 51, -30, -26, 0, 36, -10, 23, -26, 19, 2, 76, -50, 1, 55, 1, 44, -36, 7, 4, 20, -27, -1, 28, -10, 9, -8, 14, -29, 27, 16, -42, 5, 19, 23, 14, 28, 19, 49, 25, -12, 17, 32, -36, -8, 48, -13, 15, 45, 43, -51, -31, 55, 7, -19, 19, 5, 32, 13, -45, 26, 1, 43, -5, -1, -18, -6, -35, -25, 7, -23, -10, 41, -8, -38, 9, -56, 6, -7, -18, -19, 23, -7, -44, -22, 22, -23, -22, -6, 14, 22, -9, 27, -9, 10, -7, 0, -1, 21, -27, -7, 28, 10, 2, -4, -9, 41, 9, 2, 23, 1, 15, -59, 24, 3, -15, -47, -13, -6, 37, -32, 49, 45, 17, 45, -12, -22, 39, 39, 10, -57, -2, 4, -30, -22, 13, -23, -1, 20, -16, -1, 13, 20, 19, -3, 21, -6, 12, 22, 3, 44, -48, 8, 48, -66, -37, 10, -23, -38, -39, 20, 37, -11, -52, 6, -23, -5, -5, -39, 8, 9, 3, 18, -5, 68, -35, -4, -28, 2, 43, -23, -20, 13, -22, -59, -12, 77, -41, 5, -75, 1, -53, -7, -65, 7, 15, 42, -3, -38, 17, -42, -37, 13, -61, 38, 6, 6, 37, -4, 16, 11, 44, -12, -5, -7, 8, 6, -12, 33, 10, -30, 10, -9, 55, -14, 13, -20, -5, 28, -18, -2, -18, -23, 6, 63, -24, -20, -4, -25, -63, 0, 29, 20, 24, -48, -31, -29, 7, -42, -11, 9, -12, -23, 50, 12, 56, 29, 12, 0, -15, -48, 3, 13, -46, 23, 52, -24, 20, 0, -6, -64, -28, -32, -32, 49, -6, 21, -1, -17, 20, 18, 23, 11, -28, 16, 9, -42, 61, 33, -18, -22, 62, -23, 63, 4, -2, 3, 5, -5, -18, -27, 21, -35, 20, 34, -103, -11, -17, -48, -6, -19, 38, 44, 0, -28, 23, 37, -33, -53, 16, -19, -17, 27, -34, -5, -36, -49, -16, 8, 41, 13, -25, -14, -42, 22, 89, 9, -20, -14, -29, 0, 16, -13, -30, 65, -7, -36, -22, -28, 76, -44, 2, -59, -1, -29, -59, 1, 12, 11, 22, -20, 17, -17, -20, -12, 28, -5, 14, -23, -43, 3, 43, 13, -37, 48, 5, -39, -16, -47, 16, -9, 22, -8, -11, -15, -50, 23, -48, 44, 27, 34, -5, -1, -25, 16, -2, 26, -82, 32, -7, 37, 45, -8, -25, -14, -1, -31, 7, -1, 17, -53, -34, -13, -15, 13, -41, -10, 14, 26, -6, -35, 27, -22, 13, 14, -19, -30, -5, -33, 39, -38, -34, 17, 26, -8, 14, -17, 5, -18, 2, 13, -13, -10, -3, 17, -18, 17, 6, 4, 12, -2, -32, 12, 39, -35, 59, 8, -24, -2, 15, 45, 19, -2, -56, 5, 31, -30, -7, 28, -18, -55, 51, -9, 22, -1, -4, 1, 13, -20, 28, 11, -31, 17, 29, -68, -1, -53, -1, 9, -12, -14, 34, -13, -12, 17, 19, 13, 29, -4, -24, 38, 0, 7, -10, 23, -1, -40, 3, 27, 3, 53, 3, 4, -22, 28, -21, 30, -49, 1, 0, -18, 29, 62, 53, -54, 19, 25, -18, -2, 33, 8, 22, -27, 27, -32, -16, 9, -11, 4, -1, 0, -14, -1, -7, -34, -22, -8, -3, -12, -16, -80, -58, 32, 57, -7, -27, -76, 0, -24, -32, -46, 4, 0, 40, -22, -14, 21, -32, -27, 10, -39, 6, -41, -14, -23, -5, 2, -31, -46, 21, -16, -32, 28, 30, 71, 17, 12, -20, 43, -30, 0, 58, -27, -20, 12, 60, 7, -11, 37, -7, -4, -66, -10, 20, 15, -6, -23, 34, -3, -4, 0, 50, -4, -5, -7, 9, -25, 21, -25, -16, 16, -2, 32, 9, -39, -27, 5, 13, -31, 32, -25, 43, 10, -8, 14, -44, 29, 8, 5, -6, 40, 12, 19, 16, -53, 20, 13, 42, -3, 0, -48, 19, 24, 70, 40, 12, -4, 47, -23, -17, -4, -9, 58, -34, -20, -9, 35, -10, -13, 34, 52, 9, -1, -1, -51, 35, 33, 3, 8, -11, 1, -4, 14, -1, 47, -25, -22, -2, 7, -11, -37, -20, 64, -2, 48, -11, 24, 34, -34, 10, -25, -27, 42, -5, 33, -33, -6, 0, 12, -5, 17, -39, 8, -5, 26, -24, -25 ]
Allen, J. Defendant was charged in Wayne County Circuit Court in a two-count information with armed robbery MCL 750.529; MSA 28.797, and possession of a firearm during the commission or attempted commission of a felony, MCL 750.227b; MSA 28.424(2). He was convicted by a jury on July 16, 1980, on both counts as charged. Sentenced on July 29, 1980, to a term of from one to six years on the armed robbery conviction with a consecutive two-year term imposed on the felony-firearm conviction, defendant appeals as of right, raising three issues, the third of which involves a question of first impression. We disagree with respected counsel’s claim that nowhere in the charge to the jury did the trial judge define or explain the term "reasonable doubt”. Admittedly, the instructions did not employ the nomenclature contained in the Standard Jury Instructions. But read as a whole, the instructions did comply with CJI 3:1:04. Furthermore, no objection to the instruction was raised during trial, and thus appellate review is precluded unless manifest injustice, which we do not find, is apparent. People v Dixon, 84 Mich App 675, 685; 270 NW2d 488 (1978). The trial court did not err in allowing into evidence two pages of the preliminary examination transcript and a part of a written statement given by the complainant to the police. Defendant assigns error in the admission of such exhibits on grounds that they were prior, consistent statements. We disagree. The prior statements were inconsistent in part with complainant’s testimony at trial. Where a witness’s testimony during trial is inconsistent with a statement made earlier by that witness, the prior statement may be admitted in rebuttal. 98 CJS, Witness, § 622, p 636. Furthermore, the extent to which a preliminary examination transcript can be admitted for impeachment purposes is within the discretion of the trial court. People v Bedford, 78 Mich App 696, 700-701; 260 NW2d 864 (1977). See also People v Warren, 65 Mich App 197, 200; 237 NW2d 247 (1975). We now turn to the question of first impression: did the trial court err in instructing the jury that if they found the defendant guilty of armed rob bery on count I they must find defendant guilty of possession of a firearm in the commission of a felony on count II? The trial court instructed: "The Court: * * * Ladies and gentlemen, your verdict in this case could be on Count One: We find the defendant guilty, or it could be on Count One, we find the defendant not guilty; it could be we find the defendant guilty of the lesser included offense which was robbery unarmed. If you found the second, then, of course, you would find the defendant not guilty of Count Two which is the possession of a firearm in the commission of a felony. If you found that the felony was committed without a gun then, of course, Count Two, you would find the defendant not guilty. "If you find the defendant guilty as charged, robbery armed on Count One, then you would find the defendant guilty of Count Two because you would have found in Count One that he had possessed a gun and Count Two merely indicates that. Okay.” No objection was made to this instruction. Prior to our Supreme Court’s decision on August 28, 1980, in People v Vaughn, 409 Mich 463; 295 NW2d 354 (1980), Michigan courts uniformly had followed the rule that jury verdicts must be consistent and that inconsistent verdicts must be set aside unless they can be explained on some rational basis. People v Goodchild, 68 Mich App 226, 237; 242 NW2d 465 (1976), lv den 397 Mich 830 (1976), People v Hager, 72 Mich App 664, 667; 250 NW2d 754 (1976), People v Lewis, 94 Mich App 752, 754; 290 NW2d 73 (1980). In Vaughn, defendant was charged in a two-count information with assault with a dangerous weapon (felonious assault) and possession of a firearm during the felonious assault (felony-firearm). The jury returned a verdict of guilty of felonious assault and not guilty of felony-firearm. On appeal, this Court, following the reasoning in Goodchild and its progeny, supra, held that the jury verdict was inconsistent and vacated the conviction of felonious assault. People v Vaughn, 92 Mich App 742; 285 NW2d 444 (1979). The Supreme Court reversed, saying: "Juries are not held to any rules of logic nor are they required to explain their decisions. The ability to convict or acquit another individual of a crime is a grave responsibility and an awesome power. An element of this power is the jury’s capacity for leniency. Since we are unable to know just how the jurors reached their conclusion, whether the result of compassion or compromise, it is unrealistic to believe that a jury would intend that an acquittal on one count and conviction on another would serve as the reason for defendant’s release. These considerations change when a case is tried by a judge sitting without a jury. But we feel that the mercy-dispensing power of the jury may serve to release a defendant from some of the consequences of his act without absolving him of all responsibility.” (Footnotes omitted.) 409 Mich 466. The decision in Vaughn was released approximately six weeks after the jury verdict in the instant case. There was evidence that the defendant possessed a gun during the robbery. Thus, while the jury was free to find that no gun was present, they rationally could not find a gun present for purposes of the robbery but not present for purposes of felony-firearm. Consequently, the trial court’s instruction was completely in accord with Michigan law at the time the instruction was given. The question now becomes whether the rule in Vaughn should be applied retroactively. Clearly, Vaughn did not clarify an existing rule of law. It announced a new rule, namely: inconsistent jury verdicts are now allowed. A new rule of law may be applied either prospectively or retroac tively. Great Northern R Co v Sunburst Oil & Refining Co, 287 US 358; 53 S Ct 145; 77 L Ed 360 (1932), People v Gay, 407 Mich 681, 704; 289 NW2d 651 (1980). In Linkletter v Walker, 381 US 618, 629; 85 S Ct 1731; 14 L Ed 2d 601 (1965), the United States Supreme Court set forth three factors to be used in determining whether to apply a new rule retrospectively or prospectively. Our Supreme Court adopted the Linkletter approach in People v Hampton, 384 Mich 669; 187 NW2d 404 (1971) (dealing with the instruction which informs the jury of the treatment of the defendant if he is found not guilty by reason of insanity). The Hampton approach has been relied upon numerous times in this state. People v Young, 410 Mich 363; 301 NW2d 803 (1981), People v Tanner, 387 Mich 683; 199 NW2d 202 (1972). The key factors applied in Hampton are: (1) the purpose of the new rule; (2) reliance on the old rule; and (3) the effect on the administration of justice. Application of the three factors to the instant case leads us to conclude that the new rule should be applied prospectively. The purpose of the rule is to give the jury more freedom in arriving at its verdict. Thus it is more procedural in nature than functionally related to the ascertainment of guilt or innocence. Rules not related to a fundamental, substantive right are given prospective effect. Hampton, supra, 677, Gay, supra, 706. The second and third factors of the LinkletterHampton test point to .a prospective application of Vaughn. In People v Rich, 397 Mich 399; 245 NW2d 24 (1976), the Supreme Court gave prospective effect to the rule announced in People v Crittle, 390 Mich 367; 212 NW2d 196 (1973), regarding jury instructions on the defense of intoxication as it relates to specific intent. The Court emphasized the significance of reliance by the trial bench and attorneys on established instructional law. "The misplaced emphasis of pre-Crittle law was corrected in that decision by a unanimous Court. However, if trial courts are to be effectively guided by our appellate pronouncements, a rational dependence on our decisions currently in effect must be encouraged. "These juries were properly instructed under the law extant; their verdicts must stand.” Rich, supra, 405. As noted earlier in this opinion, the trial bench and practitioners of criminal law have relied heavily on the rule announced in Goodchild, supra, and followed in numerous decisions. Therefore Vaughn, decided subsequent to the date of trial in the case before us, should not be given retroactive effect. The trial judge did not err in giving the instruction. Affirmed. In this opinion we discuss the issues in inverse order in which they are presented in defendant’s brief.
[ 25, -23, 36, -37, -32, 6, -26, 0, -45, 35, 58, -27, 17, -16, 34, 9, 10, -9, 49, -69, -3, -22, -25, 53, -34, -30, 5, 74, -5, -8, 2, 32, -27, -1, 32, -25, 48, 14, -10, 8, -2, 18, -18, -12, -44, -10, -14, -13, 14, -20, 35, -9, -1, -5, -34, -11, 5, -7, -11, 7, 33, 44, -40, -44, -11, -40, 0, 17, -36, -12, -6, -20, 4, -51, 8, -39, -6, -8, -19, 4, -1, 10, 43, -10, 17, -41, 17, -42, 23, 0, -3, 32, -36, -2, 27, -33, 58, -23, 23, 7, -27, 26, 19, -1, -34, 17, -56, -34, -31, 8, 42, -6, 2, -15, -42, -7, -31, -22, -21, 3, -6, -3, 19, 12, 14, -47, 39, -16, -22, -22, 16, 65, 26, 7, -17, 13, 6, 28, 20, 42, 32, 24, 19, -26, 48, 48, -23, -15, 35, 26, -61, 24, -27, 10, 4, -8, 11, -58, -13, -14, 51, 34, -36, -40, -16, -23, -59, -21, -1, -40, -27, -29, 78, -10, 20, 8, -12, 11, 16, -30, -32, -7, 10, -3, 9, 40, 6, -6, -28, -47, -9, 33, -10, 7, 48, 32, -8, 28, 17, -37, 2, -23, -10, -8, 13, 20, -20, -12, 29, -5, -5, 14, -23, -50, 2, -37, -9, -15, 16, 36, -46, -23, 30, 16, 26, -34, -30, 26, -48, 10, 40, -8, -43, -25, -15, 3, 35, -37, 59, 32, -20, -68, 57, -21, 55, -2, 13, -12, 12, -15, 10, 19, 2, 16, -49, -30, 36, -34, -54, 30, -18, 25, -19, 13, -52, 70, -10, 23, -22, 12, 38, -23, -34, 39, 27, 19, -46, -20, -19, 5, 17, 23, 10, 47, -8, -17, -17, 66, 13, 29, 50, -17, -27, 3, -7, 17, 43, 27, -44, 37, 35, 4, 15, -43, -6, -12, 25, -23, -47, -2, 50, 26, -9, 9, -12, 0, -16, -9, 41, -33, -33, -40, -1, -75, 0, -40, 23, -52, -19, -58, -23, 0, 14, 15, 12, 7, -23, 0, 17, 22, 28, -45, -18, 1, 64, 56, -18, -18, -53, -42, 44, -6, 18, -16, -13, -53, -42, -15, 23, -39, 5, -23, 5, 2, 32, -24, -8, -41, -9, 46, -9, -50, -4, 5, -31, -31, 16, -36, 19, -5, -39, 24, 24, -31, -2, -31, 4, -28, 15, 43, -19, 9, -22, -42, -20, -32, 9, 4, 39, 6, -17, 3, 30, 13, -6, -25, -24, 43, 18, -16, -14, 20, 12, 40, -10, 1, 18, 6, 22, -3, 2, -22, 10, -5, 13, -23, 0, 18, -3, -37, 22, -14, 13, -19, 23, 12, -44, -21, 29, 1, -34, 15, -38, 15, 22, -43, -18, -4, 12, 9, -16, -15, 38, -100, 2, 77, 21, 0, -4, -30, 28, -64, -25, -9, 9, -26, -47, -76, 28, 0, 27, -25, 5, 26, -27, -2, 15, -12, 0, 11, 5, -6, -33, -58, -15, -58, -20, -56, -9, 7, -12, -33, 13, 2, -22, -2, -28, 3, -16, 17, -12, 1, 11, -13, 18, 15, 25, -25, 13, 38, 17, 40, -21, 61, -30, -33, 30, -8, 5, 14, 44, -67, 18, -25, -26, 18, 0, -28, -14, 0, 69, 11, -4, -61, 82, 58, -20, -25, 18, -5, 27, 36, 19, 7, -12, -11, -10, -50, 48, 25, 50, 0, 14, -9, -24, 1, 21, -2, -10, -4, -3, 30, 39, 43, 36, 4, -6, -39, 54, -27, 12, 19, 0, 6, -49, -42, 1, 23, 26, 36, 18, 20, -13, 25, 10, 0, 18, 11, -19, -6, -41, 22, 2, 20, -8, -34, -7, -23, 28, 13, 42, -38, -41, 35, 26, 2, -3, -9, -18, -12, 57, -24, -25, 7, -17, 56, -38, -20, -53, 36, -24, -24, 29, -9, 9, -23, -38, -25, -18, -16, -16, -42, -36, -28, -25, -8, 24, 1, -3, -2, -21, 24, 21, 8, 71, -21, -25, -2, 25, -44, -5, -7, 22, -49, 21, -5, 3, 8, 13, -8, 7, 43, -33, 0, 12, 16, 50, -29, 31, 24, 7, 7, 15, -3, 23, 37, -10, 8, 49, 10, 2, -10, 11, -8, 0, -12, -44, 6, 10, 16, -10, 21, 31, 21, -7, -14, 53, 45, -32, -20, 33, -51, -26, -14, -6, 16, 14, -21, 23, 19, -17, 41, -10, 15, 6, -11, -45, -16, -7, 39, -9, -7, 5, 27, -5, 35, 37, 4, 45, -20, 31, -27, -3, 22, 46, 47, 6, 4, -7, 30, -4, 21, 11, -35, -19, -14, 61, -6, -13, -4, 42, 30, 8, 7, -56, 106, 39, -23, -14, -38, -2, 37, -27, -52, -41, -27, -17, -4, 26, 13, -65, -22, 38, 3, -7, 18, -18, -7, 26, -26, 14, 16, -49, -6, 6, -12, -18, -13, -60, -36, 34, -21, -25, 42, 6, -3, 36, 23, 9, 6, 10, 6, 41, -11, 2, 30, -5, 5, 9, 2, 54, 13, -41, -9, 7, -12, -5, -15, 26, -64, 0, 23, 40, -66, -9, 63, 7, -18, -12, -17, 8, 4, 15, 30, -1, -33, 9, -2, -13, 28, 73, 18, -14, 28, -3, -1, -22, -3, 35, -3, 37, 34, -24, -9, -9, 12, 52, 77, 7, -3, 25, 18, -20, -23, 15, -22, -3, -51, 5, -17, 9, 14, -17, 26, -30, 51, -77, 18, -8, 11, 9, 0, 18, 20, 49, -62, -9, -41, -46, 12, 17, 62, -34, -21, -32, -9, 45, -12, 9, -36, 15, -24, -46, 18, 54, -28, 35, -5, -45, 26, -1, -27, 10, 7, -7, 0, -11, 0, 36, -19, 5, 59, 23, 19, -7, -52, 30, -6, 15, -10, -7, 14, -1, -63, -5, 15, 1, -28, 12, -17, -20, -9, -43, 45, -41, 5, -71, -5, -30, 24, -42, -22, -4, 24, -6, 23, -2, 18, -3, -21, 17, 30, -4, -14, 10, 48, -22, -1, -31, 35, 45, -10, -47, -42, 4, -6, 34, -9, -48, 15, -44, -20, -11, 38, 5, -28, 31, 51, -7, -37, 7, 39, -1, 15, -20, 21, -8, -16, -26, -3, -1, 10, 19, 7, 21, -22, 10, 14, -34, 13, -7, -23, 16, 8, -24, 13, 0, -28, -26, -14, -20, 36, 0, 18 ]
Per Curiam. Plaintiffs appeal as of right the trial court’s grant of summary judgment in favor of defendants pursuant to GCR 1963, 117.2(3) on the ground that there was no genuine issue of material fact and that defendants were entitled to judgment as a matter of law. This case involves what is typically referred to as a "slip and fall”. Plaintiff Norma Jean Albro was employed by third-party defendant Premium Services, Inc., in a maintenance capacity. On Au gust 25, 1975, she was assigned to do maintenance work for defendant Total Petroleum, Inc. She arrived at Total’s place of business just before closing time. Shortly after entering the building, there was a complete power failure and the lights went out. Plaintiff continued to push her work cart down a hallway past a drinking fountain, at which point she allegedly slipped and fell on spilled coffee. The point at which plaintiff fell is close to the employees’ coffee room. Deposition testimony indicated that the Total Petroleum building has two coffee rooms, one for the employees and one for truck drivers. That testimony also indicated that the coffee in the employees’ room is supposed to be for the employees only and that the possibility of a truck driver obtaining coffee from the employees’ coffee room was "remote”. Further testimony showed that after business hours people in the building almost certainly would be employees. Defendants’ motions for summary judgment alleged that plaintiffs had no evidence on the question of whether there was notice that the hazard (in this case, the spilled coffee) existed on the premises. The trial court granted both motions stating that there was "no absolute testimony that it was the defendant or the defendants’ agent that spilled it”. Initially, we note that the trial court employed an incorrect standard to review a motion for summary judgment pursuant to GCR 1963, 117.2(3). The trial court employed a standard of review closer to that used for review of a motion for directed verdict. Compare Rizzo v Kretschmer, 389 Mich 363, 372; 207 NW2d 316 (1973), with Whitmore v Sears, Roebuck & Co, 89 Mich App 3; 279 NW2d 318 (1979). The distinction is important. For example, a trial court might deny a motion for summary judgment if not satisfied that "it is impossible for the claim * * * to be supported at trial because of some deficiency which cannot be overcome”. Rizzo, supra, 372. (Emphasis deleted.) But if during trial the plaintiff fails actually to provide sufficient support for the claim, a directed verdict would be appropriate. Whitmore, supra. The distinction was not observed by the trial court in the instant case. Reversal is not required, however, if review of the record reveals that the motion for summary judgment, employing the proper standard, should have been granted anyway. This Court will not reverse a decision of a lower court if the lower court reached the right result for the wrong reason. See Buckeye Union Fire Ins Co v Detroit Edison Co, 38 Mich App 325; 196 NW2d 316 (1972), Williams v Lakeland Convalescent Center, Inc, 4 Mich App 477; 145 NW2d 272 (1966). In the instant case the trial court correctly observed that a plaintiff must present evidence of "notice”. "Notice” is usually phrased in terms of the substance causing the fall being evident for a period of time long enough so that defendant Total could be charged with constructive notice of its existence. Whitmore, supra, Suci v Mirsky, 61 Mich App 398; 232 NW2d 415 (1975). That type of evidence is not present here. Notice may be inferred, however, where the presence of the substance causing the accident is "occasioned by the proprietor or an employee”. Suci, supra, 402. Although there is no direct or "absolute” testimony as to who spilled the coffee, the elements in a negligence action may be proved by circumstantial evidence. Spiers v Martin, 336 Mich 613; 58 NW2d 821 (1953), Wolverine Upholstery Co v Am- merman, 1 Mich App 235; 135 NW2d 572 (1965). This is especially significant when examining a record for a "genuine issue of material fact”. After examination of the record in this case, we hold that plaintiffs presented sufficient evidence to create a "genuine issue of material fact” as to whether an employee of defendant Total spilled the coffee that caused Mrs. Albro’s fall. Accordingly, the trial court erred in granting defendants’ motions for summary judgment. Bilicki v WT Grant Co, 382 Mich 319; 170 NW2d 30 (1969). Reversed and remanded.
[ -8, 17, 1, 10, 29, -18, 13, 15, 2, 35, 18, 29, 45, -2, 0, -11, 17, 44, 7, -28, -4, -31, -12, -4, -52, 1, 18, -41, 34, 91, -20, 6, -33, -53, 2, 22, 41, 59, -50, -7, -5, 9, 58, -14, -17, -20, 12, 17, 71, -19, 32, 58, -10, 4, 13, 4, -24, 45, 35, 16, 9, 31, 26, -33, 34, 14, 6, 18, 4, 41, -52, 54, 16, 17, 7, -26, -26, 28, -26, 29, -8, -10, 26, 21, -33, 0, -15, 19, 13, -16, -28, -20, -47, 9, -71, 32, -19, -24, 37, 22, -26, 6, 13, 24, -7, 4, 7, -31, -26, 11, -16, 5, -11, 9, -9, 2, 81, -8, -39, 8, 34, -12, 41, 17, 8, -5, -21, 5, 28, 20, -8, 52, -57, -3, 11, -17, 35, -4, -35, -18, -2, -10, 13, 10, -22, 13, -1, 34, -21, 33, -25, 24, 28, -11, -7, -19, 0, -18, -3, 15, 20, 32, -43, 21, -2, -24, 6, 22, -21, -9, 22, -55, 24, -70, 17, 16, 14, -64, -56, 8, -43, -14, -33, 32, -15, -45, -20, 7, -14, 15, 24, -33, -53, 26, 2, 22, -12, 77, 28, -6, -20, -48, 13, -30, 35, 28, -44, -9, 35, -22, 6, -20, -17, -56, -25, -41, 18, -47, 1, -17, -50, -9, -17, 0, -13, 23, -35, -5, 11, -6, -12, 6, 32, -45, 0, 22, 11, -2, 85, -14, 2, 31, -1, 6, -77, -30, -41, -39, 22, 15, 20, -10, -60, 31, -32, -70, -24, 46, -9, -52, 16, 56, -42, -17, 32, -9, -17, 24, -55, -24, -3, 9, 1, 4, -22, -50, -9, -8, 68, 9, -21, -17, 4, -25, -46, 50, 12, 10, 0, -5, 72, -22, -29, 13, 38, 9, -2, 20, -46, -4, -11, -4, -33, -25, -41, 29, -36, -7, -29, -24, -8, -25, 30, -10, 13, 3, -27, 14, 33, -6, -31, 14, 6, 1, 14, -9, 50, -26, 21, 18, -10, 6, -33, 25, -33, 10, -7, 25, -6, 19, -3, 23, -17, -12, -18, 26, 60, -16, 22, -25, -23, -30, 61, 3, 39, 0, 27, -14, -46, 56, 13, -38, 4, 7, 5, -7, -15, 2, 10, 64, -46, -27, -17, 6, -21, -50, 16, -31, 4, 57, 22, -66, 49, -26, -54, -32, -1, -40, -39, 9, -47, -36, 41, 6, 16, 24, 18, 21, -20, 45, 14, 24, -8, -1, -12, -45, 8, -43, -23, 15, -21, -38, -14, -2, -22, -21, 58, 31, 47, -13, 20, 20, -1, -32, 19, -11, -11, -34, 10, 7, -32, 4, -20, -16, -76, 51, -7, -14, -13, 37, -21, -18, -58, -49, 12, 24, 3, 0, 23, -23, 1, 27, 32, -14, 1, -20, 36, -7, 34, -23, 33, -9, 3, 18, 31, 11, 29, -8, 27, 6, -28, 17, 18, 16, 29, -23, -9, 26, -24, -10, 13, 77, 45, -23, -30, -15, 14, -27, -32, 22, 33, 20, 16, -41, -16, 5, -26, 42, -87, -44, -43, -52, 34, -27, 52, -41, -30, 0, 10, 40, -59, -23, 33, 25, 13, -27, 9, -3, 12, 28, -14, -20, -47, 8, -52, 4, 0, 4, 49, 16, 40, -26, 15, -28, 29, 19, -25, 26, 15, 9, -13, 40, 8, -6, 24, -5, -55, 20, -3, 45, 51, -4, -6, 20, 48, -43, 11, 9, 19, -15, -27, 44, 29, 31, 24, 0, -19, 3, 75, -26, -71, 21, -16, 5, -44, 19, 27, 50, -39, -26, 25, 52, 32, -40, -64, -1, 43, 7, -3, 23, -79, 5, 36, -33, 3, -21, -7, -27, 27, 4, 8, -12, -8, -20, 7, -8, -19, -31, 36, -74, 32, -6, -57, -14, -21, -28, 12, 4, 43, 38, -4, 28, -10, 51, -42, -24, 12, 6, -27, -34, -20, 14, -43, -51, -28, 4, -6, -2, -52, -5, -17, -2, 65, 9, -37, -73, 18, -18, -20, -5, 28, 7, 18, -7, 29, -18, 6, -34, -36, -68, -10, 12, -24, -3, 4, 34, -4, -32, -12, 1, 23, 21, 4, 53, 45, 0, 16, -13, -65, 10, -40, 12, 24, 2, 3, -8, 6, 19, 34, -67, -47, 52, 13, 46, 12, 34, 57, 24, 43, -33, -15, -38, 39, 5, -32, 2, 1, -27, -30, -18, -42, 32, -14, 8, -8, 20, -8, -46, -12, -38, 0, 20, 38, 3, -22, 21, 8, 13, -6, -6, -5, 21, -5, 11, -21, -17, -10, -27, -20, 4, 34, 14, 0, 3, -13, 38, 41, 4, -5, 14, -22, 52, 44, 0, -3, 0, 5, -19, 0, -9, 19, -19, -30, 6, 3, 23, 10, -32, -26, -22, -20, 39, 17, -57, -44, 61, 11, -73, 44, -21, -33, -18, 58, 24, 10, -50, 33, -11, 14, 13, -16, 6, -8, -23, -2, 20, -14, 22, -21, 8, -4, 14, 38, 8, 3, -1, 3, 15, -16, -25, 6, -71, 21, -14, 13, 65, 35, -9, -29, 3, 3, 15, -32, -40, 38, -16, 8, -59, 13, 29, 13, -19, 1, 49, 7, 4, 32, -18, 24, -17, -9, 15, -49, 35, 41, -36, -20, 17, -4, 24, 41, -26, 77, -18, 8, 19, -12, -28, -27, 36, -1, 41, -50, 0, -2, 27, -39, 70, 9, 46, 3, 40, 26, 23, -19, 1, -32, -59, 34, 1, 23, -29, 9, 30, 6, 26, 0, 11, -20, 34, 10, 0, 32, -2, -27, -5, 28, -43, 45, -46, -53, 42, -12, 31, 19, 8, -20, -47, -16, 16, -1, 29, 29, 13, 25, 42, -18, -32, -15, 13, -52, 12, -5, -10, 6, 40, 7, 7, -17, -2, -11, -72, 6, 25, 12, -23, -23, -47, -17, -2, -4, -30, 15, 28, -56, -42, 6, 15, -33, 7, 17, -51, -27, 0, -12, -19, 19, 13, -7, 1, -30, -27, 5, -5, 46, -29, -8, -3, -20, -19, 18, -44, 25, -7, -16, -32, -17, -1, -32, 52, 35, -13, 15, -25, 10, -42, -53, -7, 7, 37, 22, -58, 30, 21, 9, 21, -70, -8, 25, 28, 17, -30, 23, 23, 26, 13, -6, 20, -12, 40, -42, -18, 34, 30, 20, 39, -32, -48, 9, 0, 39, 54, 23, 4 ]
Danhof, C.J. Plaintiffs appeal as of right from a circuit court order granting defendant’s motion for partial summary judgment. Plaintiff Leo John Gregory was seriously injured in an automobile accident shortly after leaving defendant’s bar. Plaintiffs subsequently filed a complaint which contained the following allegations: "4. That on or about November 18, 1976, LEO JOHN GREGORY was a patron of the Telegraph Inn and was sold intoxicating beverages by employees and/or agents thereof. "5. That on said date, LEO JOHN GREGORY, was served in excess of one/fifth of Kessler’s Whiskey by the employees and/or agents of the Telegraph Inn. "6. That plaintiff, LEO JOHN GREGORY, was sold said alcoholic beverage while visibly intoxicated, and thereafter, and continuously, so that plaintiff, LEO JOHN GREGORY, was caused to be in a grossly intoxicated condition. "7. That the defendant had a duty not to serve alcoholic beverages to the plaintiff after plaintiff became visibly intoxicated, but in breach of said duty did continue to serve plaintiff alcoholic beverages causing plaintiff to become grossly intoxicated. "8. That defendant knew or should have known that plaintiff was a compulsive alcoholic and in reckless disregard for the safety and well-being of plaintiffs herein, defendant continued to serve plaintiff alcoholic beverages to the extent that plaintiff, LEO JOHN GREGORY, became grossly intoxicated and was caused to sustain serious injuries.” It was further contended that defendant’s gross negligence and wrongful acts resulted in the accident, and the complaint included derivative claims by Leo Gregory’s wife and two children. Henceforth, all singular references to plaintiff in this opinion are to Leo Gregory only. The action was based upon both the Michigan dramshop act, MCL 436.22; MSA 18.993, and breach of a common-law duty not to serve liquor to a known, compulsive alcoholic. Defendant filed a motion for accelerated and partial summary judgment on the grounds that no common-law cause of action of the type alleged by plaintiff existed in this state, that the dramshop act provided the exclusive remedy, and that the claims of plaintiff and his wife were barred by the two-year statute of limitations in the dramshop act. In opposition to this motion, plaintiff argued that this Court recognized his common-law theory in Grasser v Fleming, 74 Mich App 338; 253 NW2d 757 (1977). However, the trial court ruled that Grasser did not apply, and, accordingly, an order granting partial summary judgment was entered which dismissed the common-law claims. In a previous order, the court had ruled that the statute of limitations barred claims by defendant or his wife under the dramshop act. Plaintiff appeals, arguing that the lower court erred in ruling that the complaint failed to state a common-law cause of action. It is well established that, under the dramshop act, an intoxicated person has no right of action against the bartender who served him liquor which caused intoxication, resulting in injury. The act protects third parties injured by the intoxicated person. Ciemierek v Jim’s Garage, 90 Mich App 565, 569; 282 NW2d 396 (1979). However, the existence of a common-law cause of action in favor of the intoxicated person for wrongful service of liquor by a bartender was recognized in Grasser, supra. In that case, a wrongful death action, the decedent’s daughter alleged gross negligence and wilful, wanton, and intentional misconduct by defendants for serving liquor to the decedent, who died as a result of injuries suffered in a fall which occurred after he left the bar. Plaintiff contended that defendants knew that the decedent was an alcoholic, unable to refuse liquor and that defendants had agreed, at the request of plaintiff, not to serve alcoholic beverages to the decedent, an elderly man. The defendants’ motion for summary judgment based on failure to state a cause of action was denied, and this Court upheld the trial court’s decision on appeal. The scope of the common-law cause of action thus recognized is a disputed issue in the presented case. At the outset of its opinion in Grasser, supra, 339-340, the panel stated the issue as follows: "The primary issue is whether there is a common law cause of action for gross negligence or willful, wanton and intentional misconduct by a tavern owner in selling alcohol to an intoxicated person, who is a known compulsive alcoholic, contrary to an agreement not to serve such person by the tavern owner. ” (Emphasis added.) Elsewhere in the opinion, the Court restated the issue: "Our concern is whether an intoxicated person has a common law cause of action under the pleaded facts.” Id., 343. (Emphasis added.) The Court also considered whether the dram-shop act constitutes the exclusive remedy against the tavern owner for wrongful service of intoxicants. The conclusion reached was that it did not and the Court held that: "[T]he dramshop act is not an exclusive remedy such that a tavern owner has no liability under the circumstances alleged. ” Id., 347. (Emphasis added.) Ultimately, the holding in Grasser was stated as follows: "We thus recognize a common law cause of action for serving a known drunk that other jurisdictions have also similarly found independent of the dramshop act. Not surprisingly, there is split of authority. We hold that plaintiff has stated a cause of action for gross negligence and willful, wanton, and intentional misconduct independent of the dramshop act.” Id., 350. (Footnote omitted.) In granting defendant’s motion for summary judgment in the present case, the trial court determined that the presence of an agreement not to serve liquor in Grasser was a distinguishing factor: "In Grasser we have additional facts where there was not simply an allegation that drinks were served to one who became intoxicated and drinks were continually served to him. There is further allegation that there was a duty imposed upon the bartender even before the man walked into the bar, and the bartender accepted that duty; he agreed not to serve the individual. He discussed it, I believe, with some member of the family. In my mind that * * * creates a duty in the bartender that existed separately from any duty that was imposed under the Dram Shop Act.” Upon further argument, the trial court noted: "[TJhere was prior notice which imposed a duty on the bartender which I didn’t find existed in this case.” The trial court’s analysis is bolstered by the fact that the agreement not to serve alcohol was em phasized several times in the Grasser opinion and by certain language (emphasized above) in the statements of the issue and holding. However, the broader terminology utilized in the final statement of the holding suggests that the prior agreement was not to be considered as an essential element of the common-law cause of action. Certainly a case could be made for either a broad reading of Grasser or a restriction of the holding to the specific facts involved, depending upon which language from that opinion was selected as determinative. However, because the Michigan Supreme Court has never recognized a common-law action of the type discussed in Grasser, we reexamine the issue of whether such an action should be permitted. Defendant argues that the dramshop act, which is part of the Michigan Liquor Control Act, MCL 436.1 et seq.; MSA 18.971 et seq., provides the exclusive remedy for injuries arising out of unlawful sales, furnishing, or giving away of intoxicants because the Legislature has preempted the field in this area. It is the general rule in Michigan that where a new right is created or a new duty imposed by statute the remedy provided for enforcement of that right by the statute for its violation and nonperformance is exclusive; however, a statutory remedy for enforcement of a common-law right is deemed only cumulative. Pompey v General Motors Corp, 385 Mich 537, 552-553; 189 NW2d 243 (1971), Lafayette Transfer & Storage Co v Michigan Public Utilities Comm, 287 Mich 488; 283 NW 659 (1939). In Manuel v Weitzman, 386 Mich 157, 163; 191 NW2d 474 (1971), the Supreme Court stated: "Dramshop acts were passed because under the common law it was not a tort to sell or furnish intoxicating liquor to an ordinary able-bodied man, even though as a result of his becoming intoxicated injury resulted to himself or to others. Their purpose was to fill a void in the law * * (Footnote omitted.) The plaintiff in Manuel had been injured in an assault by another customer at the defendant’s bar. He filed a complaint which included a claim that defendant had violated a common-law duty to maintain a safe place for business invitees. The trial court granted defendant’s motion for a directed verdict on the ground that the sole cause of action against a bar owner for injuries inflicted by an intoxicated customer is provided by the dram-shop act; however, the Supreme Court reversed, finding that the dramshop act was not intended to remove the duty of a tavern keeper to exercise due care for the welfare and safety of invited patrons. In deciding this issue, the Court reached the following conclusion: "We specifically approve the following statement in De Villez [v Schifano, 23 Mich App 72, 77; 178 NW2d 147 (1970)]: " 'We hold that the dramshop act affords the exclusive remedy for injuries arising out of an unlawful sale, giving away, or furnishing of intoxicants. * * * However, the act does not control and it does not abrogate actions arising out of unlawful or negligent conduct of a tavern owner other than selling, giving away, or furnishing of intoxicants, provided the unlawful or negligent conduct is recognized as a lawful basis for a cause of action in the common law.’ ” Id., 164-165. It is our opinion that the common-law theory advanced in the instant case should not be recognized because plaintiff’s injuries arose out of an alleged unlawful sale or furnishing of liquor, and, according to Manuel, the exclusive remedy in such a case is provided by the dramshop act. In this holding, we differ from the panel in Grasser, supra. the trial court’s order granting partial summary judgment is affirmed. Affirmed. Costs to defendant. J. H. Gillis, J., concurred.
[ -27, -4, 38, 20, 1, -24, 25, 45, -56, 44, -10, -30, 30, 50, 12, -38, -4, -28, -36, 5, 67, -18, -24, -8, -6, 9, 21, -19, 21, 7, 4, 1, -30, -13, 10, 40, 25, -17, 47, 20, 7, -16, 53, 11, -14, -11, 13, -55, 27, 20, 38, -25, -9, 20, 19, -15, 3, -2, 25, -9, -28, 39, 37, -46, 39, 21, 7, 5, -44, -21, -28, 30, -13, 16, -37, -19, -25, 10, 19, 1, -22, 31, 48, 21, 7, 27, 11, -10, 3, -34, 21, -25, -44, -53, 4, -4, -35, 12, 2, 34, 4, -44, -21, 20, 1, 44, 9, -56, -34, -76, -7, -23, 37, -2, -20, -35, 7, -21, -38, 19, 37, -7, 75, -7, 0, -20, 33, 4, -61, 23, 59, 22, 13, -18, -3, -21, -27, 21, -17, -17, 49, 0, 40, -8, 36, 39, -6, -18, 7, -36, -28, 46, -39, 30, -7, 0, 23, -23, -16, -48, 2, -37, 15, 11, -4, -25, -9, -7, -3, 44, 7, -47, 33, 19, 29, 3, 26, -24, -59, 8, -52, 18, 30, -8, 15, -32, 3, -12, -22, 38, 25, -36, -42, 22, 14, 26, 1, 13, 21, 10, -40, -40, 17, -22, 42, -20, 3, 37, 14, -13, 3, -39, -7, -74, -32, -62, -6, -15, -33, -33, -21, -2, -8, -17, -22, -20, -27, -33, -21, 5, -34, -27, 40, 51, -34, -9, 15, -13, 46, 8, 20, 22, -64, -48, -8, 37, -31, -42, 0, -14, 17, -10, -36, -57, -34, -44, 34, -23, 14, 16, 21, 43, -27, 64, -52, 13, -17, 41, 4, 41, 12, -36, 25, 3, 8, -36, 11, 44, 34, 71, 29, 34, 74, -37, -12, 20, -22, 47, -12, 44, 42, -54, -66, 3, 42, 19, -15, 16, -29, 40, 47, -11, 1, 40, -54, -38, -34, 9, -5, -60, -53, -37, 21, -49, 54, -9, 2, 25, 61, -46, -34, 8, -10, -5, 3, -54, 36, -33, -2, -28, -48, 25, 25, -15, -43, -19, 33, -33, 36, 38, -9, -1, -20, 17, -14, 28, 52, -53, 13, -19, 6, -2, 24, -3, 17, 6, 0, -51, 5, 30, -7, -38, -34, 23, 36, -27, -1, 7, -1, 44, -5, 36, 12, -26, -21, -63, -10, 0, -14, 50, 27, -6, 23, -22, 28, -14, -83, -70, -22, 11, -22, 9, 3, 7, -39, 15, -13, 6, 38, 3, 31, -4, 9, 6, -26, -22, -16, 36, 36, 1, -24, -6, 5, 29, -1, 32, 27, -4, 1, -13, 36, 32, 13, -65, 76, -44, 1, 3, -32, 23, -17, 13, 0, 27, -2, 30, -12, 3, -23, 24, 10, -31, -34, -17, 3, 49, -49, 25, 46, -13, -16, 14, 15, 6, -53, 35, 40, 23, -53, 4, 36, -22, 24, 24, 7, -33, -16, 10, -18, -22, -20, -15, 0, 2, -41, 24, 15, 20, -46, 28, -47, 45, -9, 19, -13, -42, -21, -46, -15, -8, 42, -36, -45, 16, -60, -29, -35, 3, -45, -2, -52, -43, -31, 19, 24, -16, 13, -7, 15, 36, -55, 1, 21, 22, -38, -50, -18, -8, 1, 12, 46, -9, -27, 22, -27, -4, 22, -62, 17, -19, 29, -21, 25, -55, 20, -15, 31, -2, 13, 49, 15, 5, 24, 16, 19, 0, -12, -24, 62, 12, -15, -19, -5, -34, -15, 41, -11, 11, -19, -44, -6, 15, 0, -5, 29, 12, 28, -17, 37, -5, -18, 58, 11, -43, 10, 11, 6, 13, -36, -14, 21, 18, 36, 21, -34, -10, 37, 10, -50, -23, -54, 27, 3, 2, 41, -2, -6, 10, 16, 8, 40, -36, 37, 36, -15, 27, -19, 22, -18, 1, 47, -19, -36, -16, -33, 2, -38, 0, -14, 52, -25, 9, 13, 60, -5, 40, 4, -2, -3, 10, -25, -27, -37, -43, -6, 20, 2, 33, -34, -49, -14, -6, 15, 36, -5, 8, -4, 26, -37, 17, -66, 49, 1, 37, -2, -48, -6, -7, -38, -5, -23, -12, -67, -6, 16, 0, 53, -18, 1, 6, 16, 0, -22, 5, 41, -33, -9, 21, 0, 17, -39, -16, 66, -52, 10, 19, 0, -9, 34, -14, -28, 60, -13, 0, 9, 55, -5, 21, 2, -43, -65, -13, 27, 33, -24, 16, 8, -74, 28, 14, 25, 44, -11, -13, 36, 20, 12, -45, -44, 15, -55, 10, 19, -45, 34, 0, -29, 3, 26, -37, -6, -12, 15, 40, 15, 10, -9, -68, -28, 60, -6, -8, 18, -56, 17, -28, -37, 49, 21, 9, 1, 48, -30, 6, 29, 3, 49, 5, -32, -8, -4, -47, -6, -19, -15, 9, 10, 10, 57, -18, -46, -8, 27, -28, -56, 33, 0, 10, 45, -8, 18, 8, 29, 13, -33, 11, 33, -15, 1, 18, -4, -53, -18, 4, -9, 6, -12, 7, -11, 0, 18, -24, 30, 23, 5, -3, 40, -36, 1, -20, 24, 38, 26, -5, -11, 0, -12, -31, -36, 2, -1, 19, 5, 10, 5, -9, -3, 13, -12, -1, -11, -44, 12, 2, 27, -5, 58, -45, -35, -8, -11, 13, -35, 55, 34, -24, 43, 24, -24, -3, -2, -21, -27, -11, -5, -6, -37, -9, 5, 63, 54, 19, -46, -18, 0, -4, -3, 21, 16, 55, 10, -14, 7, 55, -35, 7, 15, -56, 9, -12, 38, -43, -25, 17, 28, 25, -4, 34, -65, 20, 25, -7, -15, 25, -55, -23, -21, 12, 18, -63, 22, -9, -15, -4, 22, -6, -1, 10, -21, 7, -23, -24, 9, 29, -6, 47, -47, 35, 14, -1, 52, 25, -29, -20, -12, -6, 37, -9, -34, 18, -50, -12, 0, 24, -19, 13, 24, -19, 39, 19, 6, 15, -9, 44, -11, -61, 0, -54, -18, 19, -49, -20, -32, 50, 35, 55, -6, 30, -37, 22, 42, 60, -6, 41, 3, -13, -18, 42, 14, 1, -26, 5, 38, -2, -28, 29, -3, 32, 17, 25, -6, -34, -49, -13, -5, 6, -44, 46, -77, 17, -22, -17, -4, 44, -17, 17, -12, 19, 0, -20, 38, -38, -2, 25, 53, -25, -2, 41, -22, 14, -28, 0, 32, -11, -6, 42, 17, -14, -55, 7, -33, 51, 6, 13 ]
Per Curiam. This case involves a contested claim against an estate. Appellee, the mother of the deceased, recovered the $23,940 principal of a promissory note, with $11,318.60 interest. Since the promissory note at issue included a promise to pay "costs of collection if not paid at maturity”, appellee also was allowed to recover $11,806.64 as costs of collection. Appellant appeals by right pursuant to MCL 600.861; MSA 27A.861. Appellant first argues that the trial court erred by declining to hold that the promissory note had been discharged by an accord and satisfaction during the deceased’s lifetime. Appeals from probate courts are not tried de novo. MCL 600.866; MSA 27A.866. Findings of fact by a probate judge sitting without a jury are not reversed unless the evidence clearly preponderates in the opposite direction. In re Granville Estate, 345 Mich 495; 76 NW2d 827 (1956). We cannot say that the evidence here clearly preponderates contrary to the trial court’s findings. It next is argued that the trial court erred by applying the doctrine of equitable estoppel to avoid the statute of limitations. In Klass v Detroit, 129 Mich 35, 39, 40; 88 NW 204; 95 Am St Rep 407 (1901), the Court said: "It is a legal maxim that nothing can interrupt the running of the statute of limitation, and it is commonly stated without any qualification. But the courts have ingrafted upon statutes of limitation an exception based upon estoppel. This seems to be limited to cases involving an intentional or negligent deception, and the rem edy used to be a bill in equity to enjoin the pleading of the statute. "It is apparent from the foregoing that the usual rules pertaining to estoppel should be applied in such cases, and that the defendant will not be precluded from availing himself of such defense unless it can be fairly said that he is responsible for deceiving the plaintiff, and inducing him to postpone action upon some reasonably well grounded belief that his claim will be adjusted if he does not sue.” Here, the trial court found that the deceased had been entrusted with certain of his mother’s business affairs and, with her consent, borrowed the proceeds of investments which he made for her. The deceased previously had given his mother a renewal note to avoid the running of the statute of limitations, and she trusted him completely to take actions to further preserve her rights. She was unsophisticated and ignorant of the statute of limitations, whereas he was an experienced businessman. On these facts, the trial court did not err by finding that appellee was induced to postpone suit on a reasonably well-grounded belief that she would be paid if she did not sue. The factual basis for concluding that appellee’s belief was reasonably well-grounded was the close, confidential relationship between appellee and the deceased. The last issue raised herein claims that the trial court erred by awarding attorney fees of one-third of the amount recovered on the promissory note under a provision of the note requiring payment of the costs of collection if the note was not paid at maturity. Costs in probate court for a claim against an estate are limited to $100 as an attorney fee for any single claim by MCL 700.705; MSA 27.5705. Thus, it is clear that the award of $11,752 as an attorney fee here was not a taxation of costs but part of appellee’s contract claim against the estate. A contract provision such as that at issue here must be construed as limited to reasonable attorney fees, otherwise it violates public policy as a penalty. Security Trust Co v Solomon, 241 Mich 52; 216 NW 405 (1927), In re Schafer’s Bakeries, 155 F Supp 902 (ED Mich, 1957). Comparison of the parties’ briefs on appeal demonstrates that there is no real dispute as to the correctness of the foregoing. However, appellee presented her claim for attorney fees to the trial court under the procedures specified in GCR 1963, 526.11 for taxing costs rather than as a claim against the estate under the contract. No evidentiary proceeding on this question was held, even though appellant filed a memorandum which stated, among other things, that the fees bore no relationship to the reasonable value of the services of appellee’s counsel in this matter. No Michigan authority explains how a claim for attorney fees such as that at issue here may be established. Nationally, there is a split of authority with no clear majority rule. See the cases found in Anno: Necessity of Introducing Evidence to Show Reasonableness of Attorneys’ Fees Where Promissory Note Provides for Such Fees, 18 ALR3d 733. We believe that the better rule is to require introduction of evidence. A party asserting a breach of contract claim bears the burden of proving his damages with reasonable certainty. S C Gray, Inc v Ford Motor Co, 92 Mich App 789, 801; 286 NW2d 34 (1979), lv den 408 Mich 869 (1980). Appellee’s claim for attorney fees here was simply a claim for damages for breach of contract and should have been treated as any other such claim. While in a proper case a trial court may resolve an issue like this through judicial notice of adjudicative facts pursuant to MRE 201, the trial court here did not purport to do so. Moreover, it does not appear to us that the customary range of attorney fees in a case of this nature was either a fact generally known within the jurisdiction of the trial court or a fact capable of accurate and ready determination by resort to sources whose accuracy reasonably cannot be questioned. MRE 201(b). The case must be remanded to the trial court for an evidentiary hearing and resolution of this question. Affirmed in part, reversed in part, and remanded for further proceedings in accordance with the foregoing. We retain no jurisdiction. No costs, neither party having prevailed in full. We wish to- note that the requirement we impose that the reasonableness of the attorney fees be established does not preclude the trial court from determining that a contingent fee or, specifically, this contingent fee is a reasonable one.
[ 14, 46, -37, 20, -18, 21, 14, -5, 46, 25, -12, -8, 16, 21, -32, 30, 40, -5, -8, -38, -53, -11, -30, -14, -9, -11, 22, 25, 63, 16, 6, 26, -57, 17, -13, 18, 35, -24, 20, 50, -6, -52, 34, 41, -46, -26, 10, -18, 8, -15, -9, -20, -18, -23, 25, 0, 21, -37, 0, -16, -25, -64, 33, -20, -5, 58, 1, 37, 3, -38, -12, 27, 38, 27, -29, -49, -31, 33, -14, 15, -2, -37, -4, 7, -19, -23, -21, 0, -10, 7, -40, 17, -33, -11, -38, 10, 53, -5, 78, 24, -6, -14, 11, -15, -10, 40, -28, -42, -42, -23, -10, -10, 26, -5, -53, 26, -49, 14, -4, 2, 7, 8, 39, -67, 48, 7, 22, 27, 10, 29, 15, 23, -42, -3, 6, 18, -35, -51, -43, 5, -4, -25, -16, -16, 32, 5, 56, -64, -26, -36, -10, 62, -71, 0, 3, -25, -8, -52, 2, -5, 22, -17, 8, 12, -7, -18, 15, 56, 18, -32, 0, 25, -24, 3, -10, 42, 57, -26, -1, -11, 1, 56, 4, -17, 25, -22, -36, 33, 2, -1, -9, -18, 28, 61, -4, 33, 28, 47, -6, 21, -49, -27, 15, 45, 30, -13, 64, -54, -19, 19, 10, 21, -24, -12, -40, -18, 48, -8, -37, 28, -7, -18, -10, -39, 4, -3, -13, -69, 3, 13, 0, 17, -33, 44, -4, 48, -12, -2, -16, 0, 16, 9, 0, -67, -21, 30, -11, 58, 0, 20, 9, -29, -3, 31, 38, -2, -18, 33, 6, -19, -4, 32, -63, 11, 14, 7, 13, 0, -32, -2, 6, -28, 2, 48, 19, -23, -11, -10, -17, -39, 29, 3, -32, -16, -45, 0, -49, 49, 38, 36, 0, 25, 18, -40, 0, 28, -1, -35, 12, 18, -4, -13, 56, 19, 17, -9, 16, 17, -28, -6, -1, 68, -60, 31, 24, 51, -53, -68, 48, 1, 57, 12, -20, 15, 16, 6, 38, -25, 14, 32, -8, 37, 20, -3, 23, 0, 22, -11, -38, -16, 70, 9, -8, 26, 10, -6, -2, -25, -46, 22, -63, 35, 8, 29, 40, -11, 43, -10, -39, 88, 31, 11, 26, -21, -8, 15, -24, -25, -13, 18, -13, -20, -44, -17, -30, 18, -24, 3, -45, 22, -19, -62, -10, 43, -6, 17, -15, 17, -15, 33, -44, 9, 35, 9, -18, -1, -5, 50, -70, -58, -38, 28, 9, 18, -27, 14, -25, 17, -18, 72, 17, 21, 46, 7, -21, 4, 46, -28, 40, 16, 69, 13, -67, -17, -37, -39, -17, -3, 25, -37, -1, 21, 11, -58, 38, 39, -10, 23, -4, 3, -19, 6, 15, -10, 23, 44, 0, -52, 11, 4, -13, -6, 27, -11, -3, 14, 51, -14, -19, -21, 43, -50, 18, 28, -5, -15, 0, -3, 31, 25, -37, 30, 1, -15, -22, 20, -14, -2, -18, 3, -20, 15, -10, -22, -28, 35, -21, -37, 10, -74, 9, -4, 11, 16, 4, -42, -30, -17, 8, 15, 10, 10, 62, 2, 37, -42, -21, -58, -51, -1, -36, 3, 50, 6, -1, 17, 40, 12, 68, 39, -14, -7, -54, 42, -22, 15, 1, 10, 40, 15, -19, 26, -13, -39, -10, -16, 0, 41, -37, -19, -39, 68, -2, 41, -43, 30, 8, 12, -42, -18, -52, -27, 20, 40, -6, -17, 65, 0, 3, -51, 41, 50, 9, -13, 18, -26, 18, -35, 10, 17, 1, -35, -14, -12, -7, 9, 42, -9, 17, -34, -20, 32, -18, -60, -44, 7, -11, 10, 31, 11, 9, -3, -8, -6, -49, -18, -28, -51, 20, 8, 19, -7, -33, 2, 39, 19, -17, 27, -15, -22, 45, 36, -25, -18, -48, -30, 19, -58, -10, 18, 28, 3, -2, 15, 15, -12, -1, -24, -40, 35, 49, -12, 7, 20, -60, 16, -17, 19, -10, -41, -44, 63, 7, -24, -1, -18, 51, 13, 30, -19, -20, 51, 29, -12, -20, -20, 5, -33, 1, -12, 3, 1, -10, 20, 5, 25, 8, -9, 3, -2, -10, -12, -33, 16, 1, 24, -30, 24, 41, -12, -33, 6, 25, 51, -12, -12, -40, 1, 17, 43, -20, -18, -16, -17, -28, 6, 0, 63, 42, 14, 9, 26, 0, 40, -42, 0, -54, 13, 0, 34, 7, -7, 14, -58, -6, 40, -11, 25, -38, -46, 6, -19, -4, -11, -38, -2, 55, -32, -2, -27, -8, 13, 14, 12, -37, -9, 33, -40, 3, 9, -25, 1, 22, -26, -57, 14, 8, 23, -12, 24, 24, 40, 29, 35, -14, 24, 8, -10, 20, -46, 0, 26, -4, 0, -21, -10, -88, -1, -19, -13, -3, -32, 7, 9, -8, 29, -19, -10, 55, 5, -14, 44, 1, 66, 22, -57, 10, -32, -22, 71, 17, 8, 8, 0, -5, 32, -37, -40, 48, -43, -18, -20, 22, -11, 3, 7, -11, 28, -56, -20, 16, -37, -55, 2, -23, 7, -2, 56, 3, -15, 13, 6, -15, 4, -61, 28, 12, -15, -28, 70, 22, -53, -36, 0, -12, 11, 24, 69, -11, -63, -11, -32, -22, 32, 0, 30, 37, -19, 16, -23, -8, -11, 11, -11, 33, 0, -43, 6, 0, 21, 16, -13, -3, 26, 23, 3, -36, -7, 11, 0, -39, -18, -43, -6, 12, 18, 49, 1, 21, -12, -45, 24, -55, 4, -44, 46, -16, -11, -72, 3, 22, 29, 3, -27, -11, -24, -5, -43, 27, 64, -42, -34, 5, -27, 23, 19, -48, -39, -17, 23, 11, -22, 37, -3, 14, 31, -8, 12, -48, -10, 16, 21, -49, 26, 15, -45, 66, -26, -59, -4, 4, -47, -22, 33, 56, -9, -8, -18, 61, 16, -29, -24, -5, 34, 16, 30, -2, 12, 23, -3, 0, 27, 20, 51, -1, -6, 21, -9, -60, 11, -13, -7, 5, 12, 51, -14, 16, 12, 8, -4, -62, -34, -26, -46, -9, -37, 73, -8, -48, 11, -7, -17, -48, -1, -48, -23, -33, 2, -23, -19, 63, -13, 32, 9, 8, -8, -3, 6, 44, 20, -30, -23, 26, -5, 23, -65, 37, -52, -42, -43, -29, 34, 32, 24, 34, -10, 0, -42, 12, -2, -18, -15, 32, 9 ]
Per Curiam. In February, 1979, defendant was convicted on his pleas of guilty to breaking and entering with intent to commit larceny, contrary to MCL 750.110; MSA 28.305, and to "joyriding”, contrary to MCL 750.414; MSA 28.646. He was subsequently sentenced to prison terms of from 5 to 10 years on the breaking and entering conviction, and from 16 to 24 months on the joyriding conviction, the sentences to run concurrently. Defendant appealed his convictions to this Court and on February 27, 1980, in an unpublished per curiam opinion (docket nos. 44541, 46986), a panel of this Court ruled that the proffered plea to the breaking and entering charge lacked a sufficient factual basis since there was no evidence of any "breaking”. The Court held that defendant’s statement at the plea-taking proceedings, that he and an accomplice had gone to a school between 10 p.m. and midnight and "went in the door on the left-hand side and went up to the office, got some money”, was insufficient to establish a breaking or to permit the inculpatory inference of a breaking. Following the procedure outlined by the Michigan Supreme Court in Guilty Plea Cases, 395 Mich 96, 129; 235 NW2d 132 (1975), this Court remanded the matter to the trial court in order to allow the prosecution to attempt to establish the missing element. This Court affirmed the joyriding conviction, holding that there was a sufficient factual basis to sustain the plea. On May 2, 1980, further proceedings were conducted in the trial court. Over defendant’s objection, the prosecutor was permitted to examine a janitor employed by the school that had been broken into. The janitor testified that he was in charge of locking the building at night and that, on the night of the break-in, he had in fact secured all of the doors. Satisfied that the missing element had been established by the witness’s testimony, the court affirmed defendant’s conviction. The defendant did not testify at the hearing. Defendant now appeals as of right. Defendant asserts that the factual basis for a guilty plea must come exclusively from the defendant, and that, if he cannot provide it, in full or in part, he must be afforded a full adversarial trial. The starting point of our analysis is the directive issued by the Supreme Court in Guilty Plea Cases, supra, that: "On remand the prosecutor shall be given an opportunity to establish the missing element. If he is able to do so and there is no contrary evidence, the judgment of conviction shall be affirmed. If the prosecutor is unable to establish the missing element, the judgment of conviction shall be set aside. If contrary evidence is produced, the matter shall be treated as a motion to withdraw the guilty plea and the court shall decide the matter in the exercise of its discretion. GCR 1963, 785.7(4).” Id., 129. Also at issue is the applicable court rule, GCR 1963, 785.7(3)(a): "If the defendant pleads guilty, the court, by questioning him, shall establish support for a finding that he is guilty of the offense charged or the offense to which he is pleading.” Another panel of this Court was recently faced with the identical issue before us now. In People v Brown, 96 Mich App 565; 293 NW2d 632 (1980), the Court held that, on remand to supply the missing element necessary to complete the factual basis needed for a guilty plea, the prosecutor is entitled to produce evidence independent of the defendant’s own admissions where (1) an essential element or elements of the offense were neither denied nor admitted by the defendant due to oversight of the judge and prosecutor at the time of the plea and (2) the defendant substantially admitted his guilt at the initial plea hearing. Brown, supra, 572. We believe Brown is a well-reasoned opinion and that the test it announces is both workable and constitutionally sound. Citing People v Barrows, 358 Mich 267, 272; 99 NW2d 347, 350 (1959), Brown stated that the "purpose of the requirement that the factual basis of the crime be established through direct questioning of the defendant at the time the plea is offered is to prevent acceptance of 'involuntary or induced false pleas of guilty’ and 'subsequent false claims of innocence’ ”. Brown, supra, 572. We agree with the Brown Court’s conclusion that "[t]his purpose is perverted by' application of the requirement to a situation * * * where defendant has substantially admitted his guilt and then refuses to testify further or make an offer of proof at the hearing on his motion to vacate the plea”. Id., 572. The Supreme Court itself in Guilty Plea Cases recognized that upon remand the missing elements could be established apart from the defendant’s own testimony. Rather than directing trial judges to query defendants as to the missing elements, the Court instead spoke in terms of the prosecutor establishing the missing elements. In addition, the Court contemplated the resolution of situations where "contrary evidence” would be produced. Clearly, the implication is that either party may produce evidence. More significantly, the Court stated that: "Direct questioning is not an absolute. * * * [W]here the judge makes a conscientious effort to establish a factual basis for a plea of guilty by direct questioning of the defendant, omissions in the record recital of the factual basis may be established in some other manner.” Guilty Plea Cases, supra, 134, fn 3. There are also pragmatic reasons for rejecting defendant’s argument. As the Brown Court recognized: "A defendant who appeals his plea-based conviction or who moves to withdraw his plea can be expected to deny the missing elements unless, out of fear of a perjury charge, he remains silent. There is nothing to be gained by his appeal or motion if he is going to admit the missing element * * *. Consequently, a hearing that is limited to further inquiry of the defendant would be a waste of time.” Brown, supra, 571-572. As a matter of federal constitutional law, we believe the procedure outlined in Guilty Plea Cases and interpreted in Brown is sound. The United States Supreme Court has recognized three basic constitutional requirements which must be satisfied if a guilty plea is to be upheld. First, the plea must have been made voluntarily. Secondly, it must have been made intelligently. Finally, the record must show that the plea was made both voluntarily and intelligently. Brady v United States, 397 US 742; 90 S Ct 1463; 25 L Ed 2d 747 (1970). As our Supreme Court stated in People v Barrows, supra, the primary purpose of requiring the defendant to personally state a factual basis is to insure that his plea is voluntary. Another purpose is to satisfy the judge that the plea is a "well-considered and well-advised choice by the defendant”, Guilty Plea Cases, supra, 134, fn 2, or in other words, that it is intelligently made. By requiring the defendant to personally provide a factual basis for his plea, Michigan law therefore insures that the defendant’s plea is both voluntarily and intelligently made. This is all that is constitutionally required. It should be realized, however, that another purpose for requiring a factual basis is to make sure the defendant’s plea is accurate, so that he is not overcharged. It is quite plausible that a defendant might enter a knowing and voluntary plea which is nevertheless inaccurate. Since accuracy, and indeed the requirement of a factual basis, is not part of the constitutional equation, it follows that the trial judge should have greater latitude in providing a factual basis. The constitutional requirements of a voluntary and intelligent plea are met by Brown, since be fore a case can be remanded to fill in a missing element, the appellate court must be satisfied that the defendant "substantially admitted his guilt” and that the omissions were essentially a matter of inadvertence. The defendant cannot be heard to complain if the prosecutor provides the missing elements on remand, since at the original plea proceeding (if Brown is satisfied) the defendant would already have entered a knowing and voluntary plea. Defendant’s contention also pales when viewed in light of the federal rule which reads as follows: "Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such a plea without making such inquiry as shall satisfy it that there is a factual basis for the plea.” FR Crim P 11(f). This rule has been interpreted as giving a trial court wide latitude concerning the methods by which it can satisfy itself that the factual basis is accurate. Indeed, according to the 1966 Committee Note, there are at least four sources from which the court may determine if there is a factual basis: (1) inquiry of the defendant; (2) inquiry of the prosecutor; (3) examination of the presentence report; or (4) otherwise. Among examples of the latter category would be the taking of testimony or consideration of documentary evidence. United States v Clark, 407 F2d 1336 (CA 4, 1969). In view of the liberal methods by which a prosecutor in the federal courts may provide a factual basis, we are convinced the procedure established by the Guilty Plea Cases, as explained in Brown, stands up to constitutional scrutiny. Having reviewed the record, we conclude that defendant did substantially admit his guilt and that he did so voluntarily and intelligently. The only element that, was missing concerned whether defendant had "broken” into the school. It is established that, to amount to a breaking, some force, no matter how slight, must be used to gain entry. People v Clark, 88 Mich App 88, 91; 276 NW2d 527 (1979), People v Davis, 22 Mich App 70; 176 NW2d 715 (1970). At the original plea proceeding, the defendant neither denied nor admitted that he used force to enter the building. Rather, both the prosecutor and the judge neglected to ask the defendant whether he used force. Defendant contends on appeal that even on remand, at which time the prosecutor presented as his sole witness a night janitor of the school, the prosecutor failed to establish the missing "breaking” element. We agree. The usual standard of review is that: "A factual basis for acceptance of a plea exists if an inculpatory inference can reasonably be drawn by a jury from the facts admitted by the defendant even if an exculpatory inference could also be drawn * * Guilty Plea Cases, supra, 130. Were we to apply this standard, the question of whether the janitor supplied sufficient facts from which we could infer a breaking would admittedly be close. As the record reveals, however, all the parties to the remand proceeding agreed that the prosecutor should bear the burden of proving the missing element "beyond á reasonable doubt”. On these facts, we believe the prosecutor should be held to his promise. Having thoroughly reviewed the janitor’s testimony, we are convinced that the prosecutor has failed to carry his burden. Although the record is far from clear, it appears that the janitor may not have locked the outside doors to the school until 11 p.m. In view of defendant’s original testimony that he entered the school between 10 p.m. and midnight, it is entirely possible that the defendant may have entered the building at a time when the general public had access to the building. This theory is plausible since the janitor admitted that there may have been activities going on that night involving public use of the school facilities. In addition, the witness did not provide any testimony from which we could infer forced entry, such as broken windows or doors. Since, in accordance with his stipulation, the prosecutor has failed to establish a "breaking” beyond a reasonable doubt, we remand this matter to the trial court to vacate the breaking and entering conviction and to enter a conviction for larceny in a building, MCL 750.360; MSA 28.592, and for resentencing. Remanded. D. E. Holbrook, Jr., J., concurs in the result only. It is clear from reviewing the transcript of the proceedings held on remand to allow the prosecution to attempt to establish the missing "breaking” element that all parties concerned were proceeding with the understanding, stipulated to on the record, that the prosecutor would have to establish a "breaking” beyond a reasonable doubt. "[Assistant Prosecuting Attorney]: Now, I have no objection that my burden here be beyond a reasonable doubt. I think that even in the case of a guilty plea, there must be evidence from the defendant’s own statements which would support an inference of his guilt beyond a reasonable doubt. I don’t believe that a guilty plea can be accepted on any other basis. The evidence which I propose to present here, in my opinion, will establish beyond a reasonable doubt the missing element of breaking. Beyond that, I have nothing else. "The Court: All right. Your objection is on the record. I am going to allow the prosecutor to proceed to call his witness. "[Defense Attorney]: Then, Judge, do you think you will look at the testimony beyond the reasonable doubt standard or— "The Court: Well, if I understood the arguments of [assistant prosecuting attorney], he agrees that the court should adopt a standard of that kind. Is that right, [assistant prosecuting attorney]? "[Assistant Prosecuting Attorney]: That’s right. "The Court: So I will adopt that standard, [assistant prosecuting attorney]? "[.Assistant Prosecuting Attorney]: [Witness], would you step forward and be sworn?”
[ 34, -8, 7, -21, -55, 3, -20, -26, -48, 52, 3, 0, 16, -36, 28, -37, -3, 49, 35, 2, 15, -3, 9, 23, -29, -24, 61, 53, 10, 64, 14, 26, 29, -34, -4, -2, 15, 27, 17, 39, 24, -22, 20, -24, -84, -13, -20, 31, 9, -7, 5, 24, 13, -1, 43, 4, -25, 10, 22, 0, 50, 39, -37, -21, 3, -11, -1, 46, -56, 9, -5, 13, -7, 0, 0, 7, 15, 23, -35, 40, 28, 5, 48, 23, 8, -44, -21, -35, -24, -73, -29, 8, -21, 22, -15, -31, 12, -34, 51, -15, -40, 20, -21, -27, 38, -22, -41, -25, -48, 17, 18, -2, 38, -49, 7, 12, -20, 28, -30, -16, 29, 4, 15, 12, -7, -10, -4, -32, 21, -33, -62, 53, -40, 4, -20, 0, 15, 43, 25, 3, -28, 13, 50, 7, 41, -18, -67, 5, 64, 34, -27, -11, -1, 11, -2, 23, -55, -11, -64, -10, -24, 8, -38, 5, 25, -6, -2, -23, 19, -38, -16, -10, 24, -15, 34, -47, -23, 17, -1, 0, -45, -27, 42, -25, -38, -44, -22, -15, -55, 9, 13, 34, -33, -45, 46, -2, -5, 49, 22, -10, -18, -32, 33, 13, 14, 16, -7, 0, -31, 37, 14, 1, 3, -57, 0, -43, 28, -8, 17, 17, -44, -4, -4, -26, -4, -7, -13, 28, 12, 9, 28, -21, 43, -20, -20, -3, -7, 11, 88, 27, 16, -21, 29, -24, 63, -14, -45, -12, -18, -29, 15, -5, -1, -14, -53, -37, 66, 20, -24, -2, -10, 14, -11, -3, -24, 48, 36, 18, -67, -3, 23, 46, -27, 0, -37, 20, -51, 12, -5, -2, 5, 21, 54, 43, -29, -3, -7, 14, 12, 8, 31, -17, -36, -3, 51, -26, 9, -18, -90, 30, 13, -22, -10, -26, 1, 2, 3, 12, -27, -4, 23, 10, 12, 29, 16, 18, -5, -35, 28, -10, -53, -26, -5, 5, 21, 0, 42, -44, 31, -29, -29, 21, 14, 39, -20, 31, 1, -20, 54, 27, 34, -22, 19, -52, -10, -15, 1, -10, -42, -30, 72, -11, 5, 35, 43, -20, -49, -6, -3, -23, 49, -3, -7, 13, -15, 18, -18, 8, -11, 33, 35, -76, -15, 45, 6, -37, 54, 6, -11, 10, 31, -30, -9, -6, -22, -3, 3, -23, -18, -23, -65, -43, 19, -66, -3, 15, 42, 37, 49, -34, -1, 8, 62, 16, 26, -22, -5, 14, -11, 43, -39, 15, 3, 25, -1, -16, 34, -65, 24, -21, -27, -7, 63, 19, 16, 2, -43, 10, -24, -35, 30, 10, -2, -38, 15, 27, -78, 3, 7, 22, -21, -7, -38, 3, 59, 49, -22, 14, -2, -16, -9, 27, 23, -38, 12, 31, 29, -12, 21, -13, 28, -29, -28, 13, 28, -29, -29, -24, 19, 13, 2, -2, -15, 35, 16, 0, 4, 36, -42, -12, 13, 2, 19, -31, -6, 4, -9, -60, -27, 2, 9, 13, 19, 6, 0, 23, -17, -44, -7, 27, -16, -20, -10, -44, 16, -7, -8, 4, 8, 15, -7, 44, 34, 38, 27, -59, 6, -35, -20, 6, -10, 14, 28, 3, -27, 45, -22, -29, -42, 0, 62, -43, 11, -9, 55, 1, 0, 4, 13, -21, 35, 40, 9, 43, 21, -6, 10, -59, -34, 40, 25, 10, -13, -7, -35, -58, 11, 35, -11, -15, -11, -3, 51, 29, 1, 17, -54, 33, 63, 4, -35, -14, -44, 0, -39, 54, 37, 24, -13, 1, 54, 99, -20, -25, -47, 35, -14, 26, 7, 7, -60, -17, 16, -62, 13, -4, -41, -18, -6, 17, 43, 6, -25, 21, 31, -4, 29, 42, 6, -54, 80, -48, -49, -4, -26, 40, -22, 40, -23, 15, 30, 22, -5, 22, 11, -5, -43, -10, -20, -56, -20, 9, -43, -8, -30, -12, 15, -7, -43, -21, -21, 0, -15, -6, 5, 17, 9, 8, 4, -30, -10, 1, 30, -27, 42, 4, -18, 15, 3, -67, 18, 7, -60, -16, -2, 40, -10, -68, 44, -2, -5, 0, 0, 62, 28, -1, -15, -16, 18, -62, -24, -20, 7, 9, 38, -39, -42, 13, 12, 0, 0, 40, 22, -30, 29, -6, 59, 36, -49, 4, -18, 12, 10, 1, -21, 1, 21, -43, -36, -7, -65, 11, -45, 11, -42, -18, -85, 2, -33, 3, 10, -15, 12, 19, -5, 23, 44, -26, 2, -27, 17, -66, -1, -44, 5, 16, -11, 1, 18, 47, -3, 33, -46, -20, -7, -7, 29, 3, -15, 26, 24, 37, 34, 56, -14, 68, 23, 13, -45, -1, -25, 55, -36, -33, -13, 12, -6, -12, -15, 20, -24, -37, 14, 36, -4, 45, -15, 15, 21, -37, 0, 40, -19, 44, -6, -7, -13, -16, 25, 11, 14, 15, -16, 7, 16, -4, 37, -12, -1, 16, 30, 9, 89, -11, -55, 15, -47, 26, 20, -15, 6, 3, -75, -24, 26, 62, 51, -19, 21, -23, 32, 6, -23, -59, 6, 18, 22, -57, 15, 17, 1, 2, 28, 55, 15, -17, -43, -25, -35, 17, -8, -2, 8, 33, 31, 11, 12, -30, 3, 8, 8, 15, 12, -6, 15, 22, 7, 18, 68, -35, 27, 4, -33, -6, 10, 5, -10, -2, 22, 9, -4, -24, 45, -3, -6, 12, -7, 6, -1, 22, 7, 2, 15, -6, 34, -11, -54, -33, 11, 49, -17, 9, -42, 2, 7, -34, 47, -51, -32, -21, 35, -26, -63, 35, 27, 23, 30, -8, -25, 2, -6, -1, -17, -1, 16, -5, -38, 6, -2, -7, -9, 34, 33, 6, 15, -15, -19, -45, -49, 35, 6, -20, 3, -37, 44, -39, 12, -34, 55, 4, -33, -5, -9, 35, -32, -1, -18, -18, 20, -28, -23, -29, -72, -15, -13, 32, 47, 3, -12, -31, -48, 9, 12, -8, 16, 1, -27, -31, -10, -2, 11, -55, 6, -8, 11, -30, -32, 43, -22, 6, 36, -71, -1, 8, -13, -5, 17, 25, -23, -6, 10, -48, -12, 27, 6, -5, 8, -39, -4, 17, -26, 16, 7, 33, -34, -32, -19, 9, -34, 21, 3, -19, 14, -34, 7, -12, -28, 14, -13, 22, -20, 43, -18, 21 ]
R. M. Maher, P.J. Plaintiffs in these consolidated cases appeal the order of the trial court granting summary judgment in favor of defendant United Security Insurance Company. On November 27, 1974, the fuel line connecting the main and auxiliary fuel tanks on a truck belonging to Olen Morgan was cut by an unknown person. Morgan took the truck to a Ford dealer, Kenneth Johnson, who was doing business as Johnson Ford in Sparta, Michigan. Repairs were completed and Morgan picked up the truck. Fuel was not properly flowing between the two tanks, however, so Morgan returned the truck to the dealer for further repairs on December 2 or 3, 1974. A mechanic got under the truck with a trouble light in order to check on the problem. He planned to disconnect the fuel line, directing the fuel into a bucket. Unfortunately the fuel squirted past the bucket and hit the light bulb, causing the fuel to explode and ignite a fire that ultimately caused several hundred thousand dollars worth of damages. Plaintiffs are insurance companies who paid claims for damages resulting from the fire. Most of the claims were for damage to nearby buildings and their contents, although two of the claims were for damage to motor vehicles at the dealership. Plaintiffs brought suit, as subrogees of their insureds, against the dealership alleging negligence on the part of its employees, and additionally sued defendant United Security Insurance Company, the no-fault insurer of Morgan’s truck, alleging that the losses resulting from the fire were covered under Morgan’s policy with United. In each case the plaintiffs were seeking to recover, as subrogees of the individual insureds, the amounts they had paid in claims. United brought a motion for summary judgment on the basis that it was not liable as a matter of law. The motion was granted and plaintiffs have appealed. Section 3121(1) of the no-fault automobile insurance act provides in part as follows: "Under property protection insurance an insurer is liable to pay benefits for accidental damage to tangible property arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle * * MCL 500.3121(1); MSA 24.13121(1). In the instant case it is not disputed that the damage was to tangible property or that it was accidental. Instead, the issue is whether the damage arose out of the maintenance of a motor vehicle as a motor vehicle. Clearly, Morgan’s truck was being maintained at the time of the accident. It is difficult to imagine a clearer example of maintenance of a motor vehicle as a motor vehicle. Work was being undertaken to correct a problem in the fuel line between two fuel tanks, work that was clearly related to the truck’s characteristics as a motor vehicle. Cf. Kudek v Detroit Automobile Inter-Ins Exchange, 100 Mich App 635, 637; 300 NW2d 350 (1980), Miller v Auto-Owners Ins Co, 92 Mich App 263; 284 NW2d 525 (1979), lv gtd 408 Mich 897 (1980). Contrary to defendant’s suggestion, the statute in no way requires that the maintenance be done personally by the policy holder. Cf. Kudek, supra. It is also clear, however, that a sufficient causal nexus must exist between the maintenance and the damage such that it may be said the damage arose out of the maintenance. In this regard defendant argues that the accident did not arise out of the maintenance, but out of the intervening negligence of the dealer and its mechanic. This misses the point. While the intervening negligence of one party may be sufficient to defeat a claim that another party’s negligence was the proximate cause of an accident in a fault-based system, the term "arising out of’ does not require as strict a showing of causation as does the concept of proximate cause. Shinabarger v Citizens Mutual Ins Co, 90 Mich App 307, 313-314; 282 NW2d 301 (1979), lv den 407 Mich 895 (1979), Kangas v Aetna Casualty & Surety Co, 64 Mich App 1, 17; 235 NW2d 42 (1975), lv den 395 Mich 797 (1975). The relationship between the maintenance and the damage must, however, be more than incidental, fortuitous, or but for. Detroit Automobile Inter-Ins Exchange v Higginbotham, 95 Mich App 213, 222; 290 NW2d 414 (1980), lv den 409 Mich 919 (1980), Rangas, supra, 17. It is not sufficient that the motor vehicle is merely the site of the accident. Shinabarger, supra, 314. A sufficient causal connection is established, however, if the injury is foreseeably identifiable with the normal maintenance of a motor vehicle. Higginbotham, supra, 222, Rangas, supra, 17. If main tenance of a motor vehicle is one of the causes, a sufficient causal connection exists even though there are independent causes. Shinabarger, supra, 313. Based on these principles, we hold that a sufficient causal connection existed in the instant case between the maintenance of Morgan’s truck and the damage which resulted. The damage arose directly out of the work being done on Morgan’s truck. While the alleged negligence of the dealership and its mechanic might be seen as an independent cause, this does not defeat the otherwise established causal connection. Accordingly, under the no-fault act, United would be liable for the damage based on its policy with Morgan. United also argues, however, that the no-fault act was not intended to displace well-established principles concerning the liability of garage keepers. In support of this position is this Court’s recent decision in Liberty Mutual Ins Co v Allied Truck Equipment Co, 103 Mich App 33; 302 NW2d 588 (1981), where the facts were strikingly similar to those in the instant case. In Liberty Mutual Gerald K. Sterling brought his truck to the Allied Truck Equipment Company for the installation of an auxiliary fuel tank. The tank was installed but did not function properly, so Sterling returned the truck to Allied. Repairs were made but Sterling returned the truck a second time complaining that the problem still had not been resolved. This time the service manager crawled under the truck to examine the auxiliary tank’s fuel line. While working underneath the truck, fuel dripped from the line, hit the floor, and splashed on the bulb of a trouble light. The fuel ignited, resulting in a fire which destroyed Allied’s building and several trucks which had been left with Allied for repairs. Insurers of the damaged trucks brought suit against Allied and Aetna Casualty & Surety Company, the no-fault insurer of Sterling’s truck, seeking to recover the money they had paid to their insureds. The trial court granted partial summary judgment in favor of Aetna, holding that the garage keepers’ liability act, MCL 256.541 et seq.; MSA 9.1721 et seq., controlled and not the no-fault act. Accordingly, the trial court held the garage keeper, Allied, liable to the plaintiff insurance companies. On appeal, this Court examined both the garage keepers’ liability act and the property protection provisions of the no-fault act and concluded that the damage did not arise out of the maintenance of a motor vehicle, but out of a bailment for hire. The Court continued: "While a strong argument may be made that the accident arose out of the maintenance of the vehicle within the meaning of the no-fault insurance act, we feel constrained to hold that, whenever a bailment-forhire situation is presented, it is the bailment of the vehicle and not the maintenance of the vehicle that governs. To hold otherwise would unnecessarily eviscerate the garage keepers’ liability act and would extend no-fault insurance coverage beyond what we believe the Legislature intended. The garage keepers’ liability act protects a vehicle owner from property damages inflicted on the vehicle while in the care and custody of a bailee for hire. The no-fault insurance act, if applicable to a bailment situation, would render that presumption in the garage keepers’ liability act meaningless. We cannot find that the Legislature intended to alter the common law of bailments for hire so drastically when it enacted the no-fault insurance act.” Liberty Mutual, supra, 40-41. After careful analysis, we do not believe that the gargage keepers’ liability act should control the disposition of the instant case. The garage keepers’ liability act is a short piece of legislation which sets up certain presumptions concerning damage to automobiles left with a garage keeper. Generally, and as applicable to the instant case, the act provides that proof of damage to an automobile in the possession, care, custody, or control of a garage keeper is prima facie evidence that the damage was due to the negligence of the garage keeper. Accordingly, we do not perceive how that act would apply to the bulk of the claims in the instant case, which involve damage to property with no legal connection to the garage. The act is clearly designed to protect the owners of vehicles who entrust their vehicles to a garage keeper. There is no expression of legislative intent that the act also be used in some manner to determine the interests of owners of buildings or other forms of property with no connection to the garage other than geographic proximity. The no-fault act, on the other hand, is not so limited and applies to all forms of tangible property. Accordingly, where it clearly can be said that the damage arose out of the maintenance of a motor vehicle the garage keepers’ liability act should not be used to artificially defeat this causal connection, at least as to owners of property other than motor vehicles which were entrusted to the garage keeper. This does not end matters since at least two of the claims in the instant case concern damage to vehicles entrusted to the dealership and since Liberty Mutual could be read as holding that the no-fault act does not apply to damage to any sort of property which results from an accident such as that in the instant case. In this regard we respectfully suggest that Liberty Mutual was wrongly decided. The garage keepers’ liability act is princi pally designed to set up certain presumptions of negligence applicable to a fault-based theory of recovery. The no-fault act, on the other hand, is clearly designed to replace a fault-based system for claims of property damage with a sufficient causal connection to the maintenance of a motor vehicle. That causal connection, once established, controls despite the existence of other, independent causes. Shinabarger, supra. While the garage keepers’ liability act would set up a presumption of negligence on the part of the dealership (at least as to claims on behalf of the owners of motor vehicles entrusted to the dealership), that presumption is meaningless in a no-fault system. Accordingly, the garage keepers’ liability act cannot logically supersede the no-fault act in cases where the no-fault act applies. The Court in Liberty Mutual was obviously concerned that a holding such as ours in the instant case would effectively destroy the garage keepers’ liability act. This is not necessarily tbe case. In cases where the causal connection between the ownership, operation, maintenance, or use of a motor vehicle and damage to a motor vehicle entrusted to a garage keeper is insufficient to invoke the operation of the no-fault act the parties will be cast back into a fault-based system of recovery and the presumptions set up in the garage keepers’ liability act will be in full force. In cases where the causal connection is established, however, we can only conclude that the Legislature intended the no-fault act (which was enacted well after the garage keepers’ liability act) to apply notwithstanding fault-based concepts such as those involved in the garage keepers’ liability act. The trial court erred in granting summary judgment in favor of defendant United Security Insur anee Company. This cause is remanded to the trial court for further proceedings on plaintiffs’ complaints consistent with this opinion. Reversed and remanded. D. F. Walsh, J., concurred. Reversed by the Supreme Court September 1, 1981, 411 Mich 633; 309 NW2d 544 — Reporter.
[ -39, -2, -33, -1, 49, -6, 26, -55, 34, 33, 10, 8, 41, 16, -7, -14, 28, 23, 23, -4, -18, -60, 11, -9, -28, -55, 13, -48, -42, 60, -18, -34, -23, -26, -29, 9, -8, 30, -68, 27, 17, -1, 51, -45, 32, -13, 24, 1, 34, 36, 28, 6, 14, -17, -28, -27, 39, 74, -4, -11, 7, -10, 37, 53, 17, -5, -41, 15, -17, 42, -27, 45, -21, 16, -13, 36, 36, -4, -19, -7, -21, -3, 68, -2, -12, 38, -51, 4, -12, -46, -96, -20, -46, -25, -16, 2, -74, -21, -3, 29, -17, -21, -3, 17, -42, 53, 11, -61, -3, -39, -38, 0, 15, -3, 14, -36, 9, 29, 37, 33, 15, 1, 41, -77, -17, 30, -11, -14, -28, 12, 1, -13, -32, 40, 11, 0, 35, 16, -5, 33, -37, 18, -1, -15, -9, 35, 36, -38, -21, 9, 39, 35, -9, -1, -46, -8, -45, -21, 36, -29, -1, -39, 27, 60, -11, -30, -12, 17, -5, -5, 28, -61, 3, -15, 43, 27, -19, -18, -104, -5, 6, -14, -31, 49, -29, -44, -6, 39, -53, 51, 47, -51, -53, 35, 0, -15, 8, 49, 20, 0, 36, -63, -5, -65, -11, -17, -14, -20, 71, -8, 28, 60, 3, -22, -51, 21, 36, -37, -24, -100, -28, -46, -26, -13, -28, -42, -55, -22, -2, -22, -33, -17, 29, 3, -44, 24, 8, -60, 24, -24, 55, 50, -30, -15, 37, -13, -34, -1, 39, -9, 0, -42, 11, 35, 6, -2, -14, -3, 1, 24, -12, 17, 0, 11, 9, 28, -29, -7, -7, 1, -19, 14, 28, -45, -19, -48, 6, 7, 11, 0, 16, 9, -49, 2, -40, -31, 18, 16, -5, -59, 34, -36, 17, -29, -9, 1, 10, 1, -34, -7, 2, -29, -7, -20, 4, 15, -13, -63, -55, 23, 4, -18, -20, 6, 57, -42, 9, 37, 6, -19, 37, 42, -4, 51, 0, -2, 29, -4, 32, 17, -2, -3, -2, 42, -32, -45, 20, 60, 48, 15, 0, -1, -14, 7, 8, 24, 60, 24, -7, -27, -43, -4, 5, -29, -7, -11, 66, 23, -54, 89, -2, -32, 17, 3, 32, -6, -14, -16, -41, 52, -12, -28, -19, 22, 22, -43, -31, 26, -33, 36, 11, -51, 34, -44, 1, -41, -48, -44, -38, 13, -16, -32, 13, 15, -28, -16, -24, 9, 2, 55, 56, 16, -48, -54, -36, 15, 11, -20, -40, -91, -7, -10, 19, 9, -53, 21, 100, 11, -9, -45, 7, -18, -22, -59, 36, -71, 38, 66, 11, 22, 5, 0, 8, -34, -24, 32, -28, -83, -28, 20, -28, 56, -29, 0, -37, -1, -21, 10, 24, 16, 33, -26, 26, -6, -51, 8, 24, -4, -1, -38, -41, -47, 14, -4, -14, -25, 30, -3, 11, -22, 1, 12, -38, 16, 21, -23, -37, -36, -19, 12, -46, 62, -15, 10, -39, -24, 38, 71, 9, -11, 22, 23, -23, -38, -12, 11, -32, 27, -37, -70, -37, -19, -12, 10, 80, 6, 0, -44, -9, 18, 7, 18, 56, 27, 52, 6, -9, 54, 14, -12, -4, -2, -35, 32, -58, -38, -2, -3, -14, -4, 33, -18, 66, 18, 5, 27, 47, 4, -18, -36, -8, 34, 2, -35, 2, -22, -21, 15, -8, 16, 20, -39, 65, -36, 33, -4, 10, -13, -38, 55, 1, 12, 44, -10, -4, 5, 6, -19, 29, -65, -36, 28, 59, -26, 7, 14, -12, 2, -84, 13, -28, -2, 2, 7, -76, -1, 19, -9, -4, -3, -15, 4, 27, 19, 101, 48, 2, -53, -48, -29, -22, -27, -38, 19, 36, 15, 11, 35, 20, -18, 5, 8, -14, -24, 8, -41, -5, -9, 33, -23, 28, -10, 12, 64, 13, 29, 27, 6, 12, -27, 6, -4, -39, -7, 15, -18, 21, 35, -52, -16, -31, -20, 59, 2, -50, -6, 1, 13, -61, -35, -51, 4, 3, 39, -40, 11, -6, 4, -4, -25, -20, -39, 28, 22, -68, -16, 11, -32, -12, 53, 19, -15, 17, 35, 65, 84, 0, 41, -30, 28, -24, -37, 25, 34, 14, 8, 30, -9, 47, -61, -13, 2, 7, -1, 30, 1, 45, 5, -28, -14, -10, 11, 0, 41, -40, 29, -4, -32, 18, 55, 12, 15, 2, -50, 11, 22, 41, -44, -55, -39, -11, -14, 26, -3, -37, 11, 34, 1, -17, -43, -31, 19, -22, -20, -17, 8, 46, -66, 18, -29, 4, 29, 116, 7, -32, 5, -63, 11, 73, -5, -46, -9, 28, -13, 33, -32, 4, 10, 18, -59, 42, -42, 55, -5, -12, -15, 38, -4, -15, -86, -15, 50, 28, -21, 2, 65, 26, -52, 2, 23, 9, -65, 26, -10, 5, 0, 33, 7, 1, -14, 22, 37, 20, -14, -35, 6, -27, 12, -7, -12, -37, 22, 3, 49, 14, -33, 33, 9, 46, 5, -2, -41, 38, -28, -3, 63, -24, 1, -16, -10, -7, 41, -28, 6, -2, 0, 14, -35, 8, -10, -8, -60, 17, 40, -6, 28, 32, -48, 25, -55, 23, -28, -57, 2, 2, 25, -60, 33, -2, 35, 5, -35, 0, 39, 16, -61, 22, 11, -23, -16, 14, -42, -19, 70, -3, -5, 17, 65, -42, 45, 0, 15, -27, 8, 32, 39, 3, -99, 46, 25, -15, -42, 9, 38, 12, -12, -3, -1, -49, 82, 31, -16, 18, 5, -52, 3, 21, 37, 43, -67, -10, 17, -11, 30, 23, 13, 22, -15, -50, -15, 10, 9, 19, 3, -2, 63, 11, 18, -39, 4, -1, 0, 0, -27, 28, 8, -1, 24, 56, 56, -1, 1, 31, 44, 6, -69, -5, -28, -53, 3, 21, 22, 45, 23, -19, -37, 42, -10, -59, 30, 35, 3, -12, 20, 21, 2, -17, -9, -20, -21, -35, 34, -3, -25, 44, -33, 19, 22, -42, -9, 19, -1, 13, -43, 16, -37, 7, -7, -52, 20, 5, -12, -11, 0, 68, -34, -74, -15, -17, 59, 24, 15, 42, 66, 6, -7, 17, 57, 33, -14, 20, 26, 25, -5, -26, 8, 20, 0, 54, 35, -48, 2, -23, -11, -4, 83, -54, 32, 16, -34, 26, 25, 60, 16 ]
M. J. Kelly, P.J. Defendants Earl Kline and Frances Kline appeal as of right a March 3, 1980, judgment and order of the trial court, awarding to the plaintiffs $17,281.33 plus interest on a promissory note executed by the defendants. The defendants also seek review of that aspect of the judgment awarding the plaintiffs an additional $10,486.14, allegedly representing the plaintiffs’ litigation expenses and costs, including attorney fees. In late 1971 or early 1972, Edwin L. Stewart entered into negotiations to purchase 103 acres of land in Arizona known as the Stegenga property. At the conclusion of these negotiations, a purchase price of $200,000 was agreed upon, for which a $24,000 down payment was required. Stewart, who was employed as a real estate salesman for Earl Kline Real Estate, did not have sufficient funds to make the down payment at that time. To conclude the purchase, Stewart arranged to borrow money for the down payment from defendant Earl Kline and Erna Jaerling, another salesperson working in the Kline office. Stewart then purchased the property on a land contract and assigned one-third interests in the property to Earl Kline and Ms. Jaerling respectively. In November of 1972, the Stegengas began forfeiture proceedings when payments on the land contract were in default. On December 8, 1972, the Stegengas mailed a notice of forfeiture to Stewart, demanding accelerated payment of the purchase price as a condition of refraining from the forfeiture. Stewart and Jaerling were unable to pay their share of the balance remaining on the contract and agreed to sell their interests to Kline for $10,000 each. Stewart later changed his mind and demanded payment in full for all monies he had contributed to the project. Kline and his wife, the named defendants, and Ms. Jaerling agreed to execute a joint promissory note for $17,281.33, payable to Edwin L. Stewart and his then wife, Margie E. Stewart. The note, as prepared by Stewart, required payment of the promissory note to be made from proceeds of the sale of the Stegenga property. The note was dated January 11, 1973, and provided in pertinent part: "For value received the undersigned promises to pay to the order of EDWIN L. STEWART and MARGIE E. STEWART, his wife, the sum of $17281.33 DOLLARS. "Said sum shall be paid by the undersigned in lawful money of the United State [sic] of America as follows: "The aforesaid sum shall be paid from the first NET PROFIT made from sales of Land described [herein] * * * Said Net Priñt [sic] shall be after all exspense [sic] of developing said parcel of land, is paid in full. ’’THIS NOTE SHALL BEAR NO INTEREST, AND [sic] PAYABLE ONLY FROM PROFITS RECEIVED FROM ABOVE DESCRIBED PARCELS OF LAND.” (Emphasis added.) As consideration for the note, Edwin and Margie E. Stewart executed a quit-claim deed transferring their interests in the Stegenga property to the named defendants and Erna Jaerling. The’ deed recited consideration of $17,281.33. Following execution of the promissory note, defendant Earl Kline completed payment of the original Stegenga land contract and the land was divided into 13 separate parcels. The parcels were sold for a total of $383,000. On October 19, 1978, Edwin Stewart filed this action in Livingston County Circuit Court, alleging that the defendants had failed to pay him the $17,281.33 owing on the promissory note despite a demand for payment and despite the fact that Earl Kline had made a net profit on the sale of the Stegenga property. On December 6, 1978, defendants filed their answer to Stewart’s claim and alleged as affirmative defenses (1) that the instrument was not supported by consideration, and (2) that the instrument was not, in fact, a promissory note. At the conclusion of defendant’s proofs following a nonjury trial, plaintiffs made a motion for summary judgment, which the court interpreted as a motion for directed verdict. OCR 1963, 515.1. The court, in an oral opinion, found the defendants’ affirmative defenses not proved and awarded the plaintiffs a judgment equal to the promissory note’s face value. The court also awarded to the plaintiffs their "actual costs of litigation”, which were determined to be $10,486.14. From the judgment and assessment of costs so entered, the defendants appeal and raise three issues. I The defendants first allege that the lower court misallocated the burden of proof regarding a condition precedent to collection on the promissory note; specifically, that the plaintiffs were not required to show the amount and fact of net profits after payment of development costs in accord with the terms of the note. The plaintiffs argue that the limited proofs introduced at the trial of this cause were sufficient, in light of the failure of defendants to deny in their answer the plaintiffs claim that all conditions were satisfied. The pertinent rule regarding pleading a condition precedent is GCR 1963, 112.3, which provides: "Conditions Precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.” The specific requirements of this rule have been discussed in 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 239: "This rule should not be understood as meaning that there is no necessity for alleging performance or occurrence of conditions precedent. On the contrary the pleader must make such allegations, though 'it is suffi cient to aver generally that all conditions precedent have been performed or have occurred.’ In most cases there will be no issue taken with these general allegations, but if an issue is to be made the burden is upon the defendant to raise it by a specific denial. Since the denial of performance or occurrence must be made 'specifically and with particularity,’ federal decisions under the same rule have held that a general denial of an allegation of performance of conditions precedent does not put in issue the question of performance of conditions precedent. See 1A Barron & HoltzofF, Federal Practice and Procedure, § 304. "The requirement that defendant must raise the issue of performance of conditions precedent by specific denial does not, however, shift the burden of proof. When the issue has been properly raised by specific denial, plaintiff has the burden of showing that performance or occurrence has been satisfied in the particular aspect denied by defendant.” In Abbey v Hudgens, 4 Mich App 621, 627; 145 NW2d 363 (1966), this Court also discussed the requirements of the rule in the context of a case alleging error in the trial court’s denial of a motion to amend the defendant’s pleadings, made at the beginning of the trial. The defendant, who had entered into an exclusive sales agreement with plaintiff realtor, sought to amend the pleadings to permit defendant to claim the agreement never took effect. The basis for this additional claim would have been that the defendant’s wife, part owner of the property to be listed, never signed the listing agreement. The Court discussed the effect of defendant’s failure to plead this failure of a condition precedent, in conjunction with a properly raised affirmative defense based on the statute of frauds: "In the light of the wording of the court rule [GCR 1963, 112.3], as well as the facts discussed previously, it can be said that pleading the statute of frauds put plaintiff on notice that defendant was prepared to prove that no valid contract existed between the parties because a necessary signature was lacking; however, it cannot be said that defendant sufficiently put plaintiff on notice that he was prepared to prove that the contract which otherwise would have been valid as between the parties was unenforceable because a 'condition precedent’ — namely, that defendant’s wife did not sign the listing agreement — was not fulfilled. A failure to make a specific averment of nonoccurrence of a condition precedent in a case such as we have before us 'would be likely to take the adverse party by surprise.’ GCR 1963, 111.7. The court properly denied the amendment requested by the defendant at trial, under GCR 1963, 118.3, since the defendant did not satisfy the court that the proofs sought to be admitted and the amendment of pleadings to conform to such proofs would not prejudice the objecting party in maintaining his action or defense upon the merits.” We believe that the defendants’ failure to raise the issue of the plaintiffs’ burden to prove conditions precedent is fatal to their claim of trial court error. As in Abbey, to require the plaintiffs to offer specific proofs on the question even after the defendants failed to raise this defense would likely take the plaintiffs by surprise at trial. GCR 1963, 111.7. The defendants’ response to the plaintiffs’ general averment that all conditions precedent had been performed, in which the defendants neither admitted nor denied the allegation due to a lack of information, would have constituted a sufficient denial of the general claims in the original complaint. GCR 1963, 111.4. However, it is clear that denial of claimed conditions precedent requires greater specificity to place the matter in-issue at trial. The proofs offered by the plaintiffs at trial, showing the original purchase and subsequent sale prices of the parcel and the disputed promissory note, were thus sufficient to support the lower court’s conclusion. Especially is this true when the records of all transactions were defendants’. II The defendants next allege reversible error arising from the trial court’s decision not to admit defendant Earl Kline’s deposition at trial. The deposition was offered in conjunction with the claim that Kline had been detained in Florida to undergo surgery to remove a growth on one of his ears. The deposition transcript was offered pursuant to GCR 1963, 302.4, which provides in pertinent part: "Use of Depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any 1 of the following provisions: "(3) The deposition of a witness, whether or not a party, when properly filed in accordance with subrule 306.6(1) or subrule 307.2, may be used by any party for any purpose if the court finds: * * * [3] that the witness is at a greater distance than 50 miles from the place of trial or hearing, or is out of the United States, unless it appears that the absence of the witness was procured by the party offering the deposition; or [4] that the witness is unable to attend or testify because of age, sickness, insanity, infirmity, or imprisonment * * We begin our analysis of this issue by noting that appellate review of a trial court’s decision on the admissibility of depositions is limited to a determination of whether the court abused its discretion. Socha v Passino, 405 Mich 458, 471; 275 NW2d 243 (1979). Further, the burden of establishing admissibility rests on the party seeking admission of the deposition. Childress v Jubelt, 45 Mich App 181; 205 NW2d 889 (1973). Our review of the evidence offered in support of the admission of the deposition discloses that the defendants did not sustain their burden of proving circumstances warranting admission. The testimony offered by defendant Kline’s son disclosed that defendant was in Florida prior to trial and had some treatment of a skin condition on this ear. However, it is apparent that the condition was not serious or debilitating. Additionally, the record offers only the self-serving affidavit of defendant Kline, submitted after trial in support of a motion for new trial, regarding whether Kline’s surgery could have been postponed until after the trial. Based upon this lack of evidence supporting the use of Kline’s deposition, we hold that the trial court did not abuse its discretion in denying admission of the deposition at trial. The trial court was unconvinced that defendant Earl Kline was suffering from any debilitating illness. The defendant’s attorney had listed Mr. Kline on the pretrial witness list and the court stated that notice of Kline’s absence was not given until the second day of trial, and there was some suspicion fully articulated by the court that the absence of the witness was procured by the party offering the deposition. We are not convinced that a mistake was made. Ill The defendants finally allege that the trial court erred in awarding to the plaintiffs their costs of litigation, amounting to $10,486.14, pursuant to GCR 1963, 111.6: "Unwarranted Allegations and Denials. If it appears at the trial that any fact alleged or denied by a pleading ought not to have been so alleged or denied and such fact if alleged is not proved or if denied is proved or admitted, the court may, if the allegation or denial is unreasonable, require the party making such allegation or denial to pay to the adverse party the reasonable expenses incurred in proving or preparing to prove or disprove such fact as the case may be, including reasonable attorney fees.” The defendants’ claim regarding this issue is twofold. Initially, it is alleged that the trial court entered the order awarding costs without making the required finding that the defendants’ denials were "unreasonable”. Second, it is argued that the lower court erred by including in the total of costs awarded a $9,000 figure for attorney fees. The rationale behind this claim is that the $9,000 fee represented a contingent fee agreement between the plaintiffs and their attorneys, and had no relation to expenses incurred due to unreasonable denials in the defendants’ pleadings. We agree with both aspects of the defendants’ claims. In previous cases, we have noted the intent of GCR 1963, 111.6 "to impose realistic costs, including actual attorney fees, as a deterrent to bad faith pleading”. Flanagan v General Motors Corp, 95 Mich App 677, 683; 291 NW2d 166 (1980), quoting 1 Honigman & Hawkins, supra (1979 Supp), p 70. The Flanagan panel also held that the rule’s penalty provision should be applied liberally in cases where bad faith pleading is found. Id. Our review is again governed by the abuse of discretion standard. Forster v City of Pontiac, 56 Mich App 415, 422; 224 NW2d 325 (1974). In this case, the plaintiffs did not offer, and we are unable to isolate, any evidence pertaining to the specific portion of attorney fees and other costs incurred solely to prove facts denied unreasonably or in bad faith. The lower court apparently applied the plaintiffs’ claim of $9,000 in attorney fees to the total of costs awarded, as though the entire liability for such fees was the direct result of bad faith pleading by the defendants. Although the question of attorney fees and costs under this court rule is vested in the trial court, we do not view this discretion as permitting the court to award contingent fees unrelated to evidence of unreasonable allegations or denials. Lindhout v Ingersoll, 58 Mich App 446, 454; 228 NW2d 415 (1975) (denial of attorney fee award sustained where record did not support claim of unwarranted denials). See also Salvador v Connor, 87 Mich App 664, 678-680; 276 NW2d 458 (1978) (M. J. Kelly, J., dissenting). ("In the absence of any support in the record for the conclusion that defendants’ attorneys’ conduct warranted the award of attorneys’ fees, the award was patently erroneous.”) In the instant case, the trial court stated the following conclusion after summarizing the pleadings and testimony submitted: "I am of the opinion, Mrs. Parker, that your clients put you in a bad spot, a very bad spot, by having you file the answer that you filed denying each and everything and not admitting it at the same time and leaving the plaintiffs to their proofs, and then not even showing up at the trial. "I am setting attorney fees, costs and expenses under Rule 111 in the amount of $10,486.14 as paid for by the plaintiffs. In fact, I have an order to that effect right now. I will fill in the amount.” We do not view these findings as sufficient to uphold the award of $9,000 in attorney fees entered below and therefore hold the amount of award of gross costs was an abuse of the court’s discretion. A plain reading of GCR 1963, 111.6 discloses that a finding of an unreasonable allegation or denial, in light of the evidence at trial, must be made prior to ordering the award. In this case, the lower court made no such finding. We thus remand the case to the trial court for further proceedings on this issue. On remand, the lower court shall hear additional evidence or arguments pertaining to the criteria in GCR 1963, 111.6 and make the required findings before imposing an award of costs or attorney fees. Affirmed in part, reversed in part and remanded. The defendants’ answer neither admitted nor denied the plaintiffs’ specific allegations, but left the plaintiffs to their proofs. In Spalding v Spalding, 355 Mich 382, 384-385; 94 NW2d 810 (1959), an oft-quoted definition of abuse of discretion was stated: "The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations. In order to have an 'abuse’ in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias. So tested, we perceive no error in the proceedings below nor in the determination made.” In dicta, this Court’s decision in State Farm Mutual Automobile Ins Co v Allen, 50 Mich App 71, 75, fn 2; 212 NW2d 821 (1973), addressed the further requirement that a trial court make findings of fact as to the rule’s criteria before awarding attorney fees: "It appears that State Farm, et al., might have sought on the basis of this rule an allowance of reasonable expenses, including reasonable attorneys’ fees, incurred in proving or preparing to prove or disprove facts in this case. However, they did not seek relief on this ground, and there is no finding by the judge that allegations or denials of Dodds and Kendall 'ought not to have been so alleged or denied’ and were 'unreasonable’. In the only cases where such allowances have been sustained, there were appropriate findings of the judge in accordance with the criteria spelled out in the court rule. See Fredal v Forster, 9 Mich App 215, 238; 156 NW2d 606, 617 (1967); Harvey v Lewis (In re Disqualification of Judge), 10 Mich App 23, 30-33; 158 NW2d 809, 813-814 (1968).”
[ 22, 31, -28, 47, -15, -20, 2, 27, -7, 26, 13, -23, 11, 47, -18, 23, 8, -38, 59, -21, 11, -66, -49, 20, 15, -15, 15, -49, -53, -4, -8, -15, -33, -45, -19, 15, -43, 55, 4, 8, -12, -46, -5, 18, -13, -16, -25, -25, -13, 42, 25, 21, 101, 17, -35, 8, -23, 11, -36, -58, -29, -52, -13, 0, 21, 4, -2, -1, 40, 6, -5, 12, 33, -3, -24, -4, -10, -10, 10, -38, -2, -24, 51, 47, -20, -2, 7, -31, 57, 37, -74, 37, 18, 37, -21, 6, -11, -10, 10, 15, -9, -37, -47, 33, 57, 47, -27, -61, -7, -1, -17, -32, 55, -25, -28, -15, -6, -13, 0, -48, -27, -18, 7, 17, -1, 0, 4, -5, -29, 80, 49, -6, -44, -17, -15, -22, -21, -17, -44, 1, -11, 56, -65, 30, 21, 0, 41, -51, -23, 0, -56, 12, 21, 48, 56, -51, -10, -11, -1, -52, 0, -8, -6, -8, -6, 9, -10, -24, -28, 37, 54, 0, -19, -4, 5, -13, 40, -40, -11, 5, 1, 41, -61, 0, -27, -21, -12, 26, -6, 63, 49, -65, 8, 18, -15, 9, -21, 20, -3, -15, 4, -40, 21, -37, 1, -16, -4, 0, 3, 18, -13, -27, 1, -44, -56, -10, -16, -33, 22, -10, -10, -36, -16, -18, -34, -40, 38, 7, 2, -7, -33, 12, 31, 46, -37, -16, 33, 41, 16, 39, 7, -8, -4, -42, 11, 29, -59, -32, -26, 6, -38, -7, -77, 96, 14, 19, -1, -5, -19, 2, 24, 11, -29, 0, -8, -16, -42, -63, 2, 30, 40, -16, -10, 24, -32, -9, -58, -23, 4, 42, 82, -16, -78, 13, 20, 3, 45, 87, -41, -4, 2, -1, 23, -11, 36, -37, 17, -26, 17, -43, -27, -18, 28, -70, -4, -19, -25, -22, -64, 7, 10, 3, -16, -43, -20, -9, -29, -34, 31, -31, 66, 33, 3, 57, 52, -8, 72, -1, -23, 26, 5, -15, -27, 0, 14, -7, -18, -13, -5, 1, 7, 10, -25, 9, -33, 18, 4, 1, -38, 13, -46, -42, 0, 51, -4, -2, 19, 23, 20, 40, 12, 50, 9, -12, -10, -27, 28, -21, 34, 65, 29, 25, -38, -44, -15, -11, -14, 24, -25, 30, 19, -19, 17, 46, 5, -57, -50, -14, -41, -2, -64, 11, -31, 36, 58, -84, -8, -3, -21, -45, -49, 39, 17, -54, -48, 34, 22, -4, 29, -9, 71, -39, 13, -25, 30, 12, 65, -11, 0, 9, 11, 2, 1, 2, 47, -39, -12, -22, -3, -19, -42, 67, 27, -11, 57, 10, -63, 7, -71, 8, -41, 0, 46, 14, 32, -5, -37, -25, 16, 30, -14, 51, -2, -4, -18, -1, 59, -6, -12, -29, 34, 39, 47, -6, -1, -23, 6, -10, -18, 44, 12, 68, 81, -10, -41, -34, -19, -42, -11, -4, -12, -32, -18, -78, 16, 11, -13, -17, -20, 15, 17, -36, 38, 37, -3, -22, 44, -40, 30, 1, -32, 9, 41, 88, 29, 3, 5, -23, -4, 20, -14, -30, -11, 53, 14, 42, 32, 15, 29, 60, 45, 17, -21, 65, -12, 13, 16, -12, 5, 41, -53, 2, 12, 2, 2, -42, -33, 8, 26, -19, -50, 21, -30, 64, -18, 32, 52, 10, -3, -29, -4, -57, 74, -42, -42, -25, 21, -23, -45, -18, -28, 50, 5, 8, 63, 22, -25, -42, -22, 64, -27, 31, -22, 33, 38, 17, -27, 19, -19, 91, 5, -17, -23, -30, -26, 50, 12, 68, -6, 19, -39, -11, 26, -48, 12, 18, -10, -37, 24, -6, -27, -1, -9, -80, -6, -6, 7, 24, -5, -37, -24, 17, 0, 52, 64, 4, 27, -99, 5, -17, 31, -47, 32, -36, 11, 50, 1, 25, 2, 26, 58, -26, 8, 37, 32, -4, -40, 43, -10, 6, -17, 26, 19, 21, -24, -18, 6, -29, 44, -33, -63, 30, 23, 33, -11, 11, 38, 9, -14, -55, 76, 23, -54, 0, -33, -31, 43, 7, 22, 26, -20, -25, 2, -42, 47, 32, -16, 35, 13, 8, -12, 20, 35, -17, 5, 61, -29, -12, -38, 7, -8, -32, 0, 25, -11, 0, -17, 17, 32, 24, 29, -6, 15, 28, 18, 41, 24, 5, 31, 12, -6, 8, 27, -9, -19, -10, 12, -3, -5, -37, 44, 0, -17, -17, 12, 32, 36, 10, -8, -1, -3, 49, -33, -24, 8, 47, -25, -36, -53, -23, -29, -45, 0, -27, -26, 22, -2, 29, 33, -5, -9, 43, 60, 17, 16, -25, -1, 19, 10, -17, -2, 30, -42, 22, 13, -17, 47, -40, -24, -9, -30, 22, -44, 7, 18, -24, 28, 48, 20, 6, -36, 15, 19, 4, -19, -28, 32, 3, 37, 27, -15, -52, 10, -6, -41, -7, 45, 13, 24, -52, 11, 15, 22, 42, 16, -14, -57, 13, -7, 14, -25, -83, -7, -2, 17, 18, -24, 14, -50, 15, -33, -14, -1, 5, -14, 34, -11, -19, -71, 5, -11, -55, 11, 8, 7, -2, -41, -15, -23, 11, 6, -48, -48, -7, 45, -43, -19, -26, 9, -34, 6, -27, 63, 33, -26, -16, -44, 0, 5, -28, 29, 23, -38, -19, 8, -50, -23, 32, 22, -1, 38, 2, -26, 17, 25, 14, 7, -71, 21, 22, -39, 25, -68, 27, -51, 4, 36, 39, 6, 58, -16, -29, -32, -29, -19, -25, 58, -32, 25, -15, 6, -27, 9, -10, 8, -1, -14, 34, 22, 43, 41, -7, -5, 7, -92, -3, 8, -15, -4, 40, 34, 21, -48, -7, 59, -5, 19, 11, 26, 22, 5, 34, 1, 13, 5, 7, 20, 13, -35, -54, 5, -42, 27, 15, -7, -4, -5, -61, -2, 48, 14, 77, -49, 19, -24, -52, -41, -4, -26, -16, -27, 19, 5, -69, 37, -19, -22, 11, 29, -7, 49, -49, -62, -30, -19, 9, -9, -7, 15, -30, -4, -9, 2, 17, 47, 29, 26, 3, 10, -19, 36, -25, 4, -18, 78, -10, -15, -28, -21, -41, -24, -34, 37, -37, 41, -9, 0, 6, 79, -42, -45, -23, 92, 8, 3, 47, 20, -9, 25, 0, -35, 17, -24, 77 ]
Allen, J. What must a defendant show before the affirmative defense of duress can be submitted to a jury in a trial for prison escape? Defendant raises this issue of first impression after the trial court refused to submit the duress defense to a jury and defendant was convicted on May 7, 1980, of prison escape. MCL 750.193; MSA 28.390. Defen dant was sentenced to 18 months to five years in prison and appeals by right. Defendant filed a notice of intent to assert a defense of duress as required by MCL 768.21b; MSA 28.1044(2). The prosecution requested that the trial court order defendant to submit more specific information and that defendant be required to name those persons whom he intended to call as witnesses. The court ruled that, if defendant failed to name any witnesses, only he would be allowed to testify at trial and the jury would be able to assess his credibility. The court also ruled that, unless defendant filed more specific information, he would be restricted at trial to the information supplied in the notice. Finally, the court adjourned trial to give defendant an opportunity to amend his notice and to give the prosecution time to investigate defendant’s claim. Defendant filed an amended notice which asserted that while at the State Prison of Southern Michigan at Jackson, Michigan, and at the Michigan Training Unit at Ionia, defendant was threatened with homosexual attacks by certain unnamed inmates and was told that some unspecified harm would come to him if he failed to comply. The prosecution again asked the trial court to strike defendant’s notice for failing to provide the names of defendant’s alleged attackers and for failing to provide specific dates of the alleged incidents. The trial court ruled that any evidence concerning events not occurring at the Michigan Training Unit would be striken but that defendant would be allowed to introduce competent evidence concerning the incidents at the Michigan Training Unit. Approximately two months later, the prosecution sought to have the defense excluded on a different ground. The trial court ruled that the defendant was required to include in his notice competent evidence on each of several factors enumerated in the notice statute and that, for his failure to do so, defendant would be precluded from asserting the defense at trial. This Court holds that the trial court erred in requiring evidence of each factor and finds that defendant’s conviction must be reversed and a new trial held. The common law has recognized that duress or necessity may be a defense to the crime of prison escape in certain limited circumstances. Anno: Duress, Necessity, or Conditions of Conñnement As Justiñcation for Escape From Prisons, 69 ALR3d 678. Michigan was among the first states to recognize that a prison escape would be justified by the immediate threat of a homosexual attack. People v Harmon, 53 Mich App 482, 486; 220 NW2d 212 (1974), aff'd 394 Mich 625; 232 NW2d 187 (1975). In recognizing this defense, this Court found that the determination of the credibility of a prisoner’s explanation lies "solely within the province of the factfinder and is to be determined within the facts of each case as it arises”. People v Harmon, supra, 487. After the Harmon decision, the California Court of Appeals recognized the duress defense but held that it was available only when five conditions exist: "(1) The prisoner is faced with a specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future; "(2) There is no time for a complaint to the authorities or there exists a history of futile complaints which make any result from such complaints illusory; "(3) There is no time or opportunity to resort to the courts; "(4) There is no evidence of force or violence used towards prison personnel or other 'innocent’ persons in the escape; and "(5) The prisoner immediately reports to the proper authorities when he has attained a position of safety from the immediate threat.” People v Lovercamp, 43 Cal App 3d 823, 831-832; 118 Cal Rptr 110; 69 ALR3d 668 (1974). (Footnote omitted.) After the Lovercamp decision, some states required that a defendant produce some evidence on each of the five criteria. Iowa v Reese, 272 NW2d 863, 866 (Iowa, 1978). Others, however, have held that, while all five factors are relevant in determining the credibility of the defendant, not all must be present before a jury can consider the defense. State v Baker, 598 SW2d 540, 545-546 (Mo App, 1980), Esquibel v New Mexico, 91 NM 498, 501; 576 P2d 1129 (1978), People v Unger, 66 Ill 2d 333, 342; 362 NE2d 319 (1977). In People v Luther, 394 Mich 619; 232 NW2d 184 (1975), the Michigan Supreme Court held that a defendant successfully raises the duress defense, requiring the prosecution to disprove duress beyond a reasonable doubt, when the defendant presents evidence from which a jury could conclude: "A) The threatening conduct was sufficient to create in the mind of a reasonable person the fear of death or serious bodily harm; "B) The conduct in fact caused such fear of death or serious bodily harm in the mind of the defendant; "C) The fear or duress was operating upon the mind of the defendant at the time of the alleged act; and "D) The defendant committed the act to avoid the threatened harm.” People v Luther, supra, 623. The Supreme Court rejected the prosecution’s argument that Michigan should require evidence on all five criteria listed in Lovercamp, but held: "To the extent that competent evidence may be produced as to any of these conditions, it is relevant to the claim of duress. As such, it should be submitted to the jury.” Luther, supra, 623. After Luther was decided, the Michigan Legislature enacted MCL 768.21b; MSA 28.1044(2), which requires a defendant wishing to assert a duress defense to file with the court a notice of such intent within 15 days of arraignment, but not less than 10 days before trial. The notice must contain the names of those persons whom defendant intends to call as witnesses and must contain specific information concerning the defense. Nowhere in the statute is "duress” defined, but § 4 of the statute provides: "In determining whether or not the defendant broke prison while under duress the jury or court may consider the following conditions if supported by competent evidence: "(a) Whether the defendant was faced with a specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future. "(b) Whether there was insufficient time for a complaint to the authorities. "(c) Whether there was a history of complaints by the defendant which failed to provide relief. "(d) Whether there was insufficient time or opportunity to resort to the courts. "(e) Whether force or violence was not used towards innocent persons in the prison break. "(f) Whether the defendant immediately reported to the proper authorities upon reaching a position of safety from the immediate threat.” MCL 768.21b(4); MSA 28.1044(2)(4). (Emphasis added.) The six factors provide objective criteria that may be helpful in determining whether the four elements listed in Luther are, in fact, present. By using the language "may consider * * * if supported by competent evidence”, the Legislature suggests that not all of these factors must be present in order to find a defendant’s escape was excused by duress. CJI 7:5:04 and its use note support this analysis, for the six factors are listed with the instruction "Only those conditions which are supported by competent evidence should be mentioned” in a jury instruction. We believe the statute and court rule are consistent with the Supreme Court’s holding in Luther. All permit a trier of fact to consider the six criteria as they bear on a defendant’s credibility. Nowhere, however, does the Legislature require a showing that each of these factors must be established before a trier of fact can consider the defense. The recent United States Supreme Court opinion in United States v Bailey, 444 US 394; 100 S Ct 624; 62 L Ed 2d 575 (1980), does not alter our analysis. The majority recognized the central role of the jury in determining whether duress has been established: "The Anglo-Saxon tradition of criminal justice, embodied in the United States Constitution and in federal statutes, makes jurors the judges of the credibility of testimony offered by witnesses. It is for them, generally, and not for appellate courts, to say that a particular witness spoke the truth or fabricated a cock-and-bull story. An escapee who flees from a jail that is in the process of burning to the ground may well be entitled to an instruction on duress or necessity, ' "for he is not to be hanged because he would not stay to be burnt.” ’ United States v Kirby, 7 Wall 482, 487 [19 L Ed 278] (1869) [sic]." United States v Bailey, supra, 414-415. The Court held, however, that the defense of duress could not be submitted to a jury unless the defendant proffered evidence of a bona fide effort to surrender or return to custody as soon as the duress lost its coercive force. 444 US 394, 415. Our holding today is based on our interpretation of a Michigan statute that has no counterpart in federal law, while the Bailey opinion was based on the common-law defense of duress as it applied to the federal crime of prison escape, 18 USC 751(a). The federal escape law has been held to be a continuing offense, United States v Bailey, 444 US 394, 413, and the fact that the offense was a continuing one was one ground for requiring evidence of surrender. The Michigan escape statute has not been interpreted to mean that prison escape is a continuing offense, however. People v Charles Johnson, 62 Mich App 240, 248; 233 NW2d 246 (1975). Instead, the statutory language suggests the offense is complete at the time the escape from prison is made. Evidence of an escapee’s actions after the crime is complete might have relevance in determining his state of mind at the time of the escape under either statute. Where the offense is not a continuing one, an escapee’s actions after the crime is complete should not be an essential element for establishing the defense. We hold that the duress defense is available in Michigan whenever a defendant offers evidence that his escape was necessitated by an immediate threat of death or serious bodily injury, including a threat of homosexual attack. Once a defendant has shown this, he or the prosecution may offer evidence relating to the factors listed in the Michigan notice statute and the jury may consider these as bearing on a defendant’s credibility. The trial court erred in refusing to allow the jury to consider defendant’s proffered duress de fense. Since a defendant need not offer evidence at trial on each of the statutory factors, he need not offer specific information relating to each factor in his notice of duress defense. Here, defendant’s amended notice established a history of threats at Jackson prison, where defendant was incarcerated for approximately three weeks before he was transferred to the Michigan Training Unit. Defendant states that, within hours of being moved into the MTU, he began being asked for sex in exchange for money or protection. He was transferred to another unit within MTU and he claims that he was accosted there in the shower by three inmates who asked him if he was a homosexual and told him they would "make him one” if he was not. Defendant was then transferred to a third unit, where he claims he was asked for sexual favors every day. He asserts that on the night he escaped his cell door was pushed open every 15 minutes and he was asked for sex favors and threatened "of what would happen to me if I did not give in to what was in store for me” that night. This notice was adequate to apprise the prosecution of what defendant would have presented at trial had he been allowed to introduce the defense. Although defendant did not name the alleged attackers, he did state that the only witness he planned to call was himself. This was sufficient to permit the prosecution to prepare to rebut this defense. We observe that the similar notice requirement for the defense of alibi has been recognized as a safeguard against the wrongful use of the defense by providing maximum possible discovery and giving time for the prosecutor to investigate. People v Merritt, 396 Mich 67; 238 NW2d 31 (1976). Al though the alibi notice, like the duress notice, must include a statement of specific information relating to the defense, a defendant seeking to present an alibi defense may himself testify even if the notice is inadequate. Merritt, supra, 88. Here, where defendant’s notice was sufficiently specific to inform the prosecution of the circumstances that defendant believed constituted duress, the trial court erred reversibly in precluding defendant from presenting that defense. Defendant also argues that the trial court erred in excluding evidence of sexual assaults that were made at Jackson prison approximately two months before defendant was transferred to the Ionia facility. Generally, a determination of whether proffered evidence is material and relevant rests with the trial court. People v Strickland, 78 Mich App 40; 259 NW2d 232 (1977). While we believe these threats may have had some bearing on defendant’s state of mind at the time of the escape, the remoteness in time and place leads us to find that the trial court did not abuse its discretion in excluding them from evidence. The trial court could find that only those threats that could have been carried out had any relevance in determining whether a threat of immediate bodily harm was operating on the mind of the defendant at the time of the offense. Defendant also argues that the trial court erred in denying his motion to dismiss for the prosecution’s failure to bring this charge to trial within 180 days of his arrest. MCL 780.131; MSA 28.969(1). The trial court denied defendant’s motion to dismiss, finding that the 180-day rule did not apply to crimes committed during the period of incarceration. In making that ruling, the trial court relied upon this Court’s decision in People v Loney, 12 Mich App 288, 292; 162 NW2d 832 (1968). On April 21, 1980, Loney was rejected by a panel of this Court. People v Moore, 96 Mich App 754, 760-762; 293 NW2d 700 (1980). The Moore opinion, which held the 180-day rule applicable to crimes committed during incarceration, has been followed in People v Anglin, 102 Mich App 118; 301 NW2d 470 (1980), and People v Marcellis, 105 Mich App 662; 307 NW2d 402 (1981). On October 23, 1980, another panel of this Court rejected Moore and reaffirmed Loney. People v Ewing, 101 Mich App 51; 301 NW2d 8 (1980). The Loney-Ewing analysis is followed in People v Grandberry, 102 Mich App 769; 302 NW2d 573 (1980), and People v Susalla, 107 Mich App 528; 309 NW2d 654 (1981). We believe the Loney-Ewing analysis is preferable and hold the 180-day rule inapplicable in this case for the reasons discussed in the dissent in People v Marcellis, supra. We observe that an incarcerated defendant remains protected by his constitutional right to a speedy trial. Barker v Wingo, 407 US 514, 530; 92 S Ct 2182; 33 L Ed 2d 101 (1972), People v Grimmett, 388 Mich 590, 606; 202 NW2d 278 (1972). Defendant does not claim that his constitutional right to a speedy trial was violated and we have examined the record and have found no deprivation of that right. Defendant’s remaining claims of error are without merit. Reversed and remanded for a new trial.
[ 56, -12, 18, 15, -47, -11, -55, -19, -74, 40, 47, -21, 40, 48, 26, 23, -14, 2, -13, -55, 40, 0, 10, 52, -23, -27, 33, 19, -4, -23, 25, 23, -35, -17, -40, -18, 2, -109, 31, 9, 19, 44, 28, 34, -73, -22, -30, 47, 16, 38, 26, 14, 26, 24, -55, 2, -2, 14, -27, 28, 19, -9, -63, 5, -30, -14, 7, -6, -76, 35, -17, -24, 20, -18, -41, -3, -49, 20, 23, 13, 34, 28, -5, -63, 4, -7, -40, -47, 34, -1, 7, 5, -63, -2, 4, -27, 40, 19, 54, -22, -10, 23, -18, -3, 36, 52, -5, 12, -29, 12, 40, -21, -7, 0, -63, -88, -47, -24, -12, 6, 22, 3, 15, 28, -5, 0, 26, -74, 22, -43, -20, 22, 34, 58, -87, 34, 50, 7, -32, -50, 5, -13, 21, 7, 53, 53, -27, 27, 57, 68, -57, 14, -27, 34, 6, 17, 7, -24, -64, 18, 39, 25, -44, -23, 49, -45, -47, -4, 36, -51, -27, 14, 24, 24, 12, 0, -2, 37, 33, -21, -23, 0, -22, 0, -22, 26, -17, 16, -38, 8, 32, 1, 6, 4, 46, 13, 6, 44, 28, -9, 28, 9, -13, -51, 19, -36, 4, -46, 56, -53, -48, -30, 8, -5, 12, -31, 16, -13, 63, 6, -71, -19, -36, 19, 5, -3, 15, 1, -48, 15, 32, 24, 12, -11, -39, -14, 37, -45, 61, 26, -20, -51, 46, -8, 42, -18, 10, 8, -15, -20, 5, 35, -12, -5, -49, 14, -18, -14, -7, 34, 16, 2, -1, 14, 10, 40, 4, 0, -40, -50, 74, -13, -70, 34, -3, -13, -29, 11, -27, -22, 24, 28, -90, 58, -21, -66, 26, -15, -47, 23, 41, -25, -36, -27, 56, -3, 42, -34, -25, 58, 0, -5, -23, -53, -19, -42, 0, 5, -27, 21, 65, 35, -6, -53, -18, 22, 39, -2, -18, -64, 9, -5, 3, -29, 15, 30, 29, -23, 3, 59, 11, -2, -20, -27, -36, 57, -35, -6, 29, 15, -17, -54, 7, 56, 24, 19, -6, 34, -65, -39, 26, 6, 20, -27, 12, -39, -77, -18, 22, 32, 3, -29, -18, 37, -13, -61, -22, 0, -4, 68, 2, -76, -41, -48, -25, 30, 12, 16, -17, 35, -43, -8, 18, 16, -3, 44, 46, -57, 40, 34, -48, -36, 8, -73, 36, -37, -2, 31, 50, -30, -31, 22, -10, 7, 17, -39, -11, 17, 27, 22, -8, 63, 30, 13, -12, -15, 35, -4, -13, -13, 1, -32, 30, -7, -3, 24, -5, -9, -50, -43, 8, 21, 22, 23, 38, 24, -47, -13, 64, -9, -9, -32, -65, -16, 21, -10, -29, -49, 10, -30, -46, 53, -30, -46, -7, 39, 19, 72, -20, 1, -36, -16, -60, 4, 0, -22, -42, -45, 1, -14, 22, -40, 0, 9, -67, -33, -45, 36, -1, 23, -50, 26, -3, -43, 15, 16, -21, -12, 22, 18, -10, 14, -6, 36, -17, 56, -27, -7, 4, 29, -51, 14, -57, 32, 5, 32, 88, 13, 23, 24, 30, 44, -37, 3, 12, -62, -18, -29, -31, 3, 0, -33, 62, 17, 32, 56, -8, -13, -63, 51, 99, -46, 21, -46, 69, 33, -45, -22, -25, -7, 4, 21, -11, -8, 51, -6, -8, 4, 8, -4, 21, 16, 33, -1, 37, -34, -11, -9, -6, -61, 15, -23, 8, 19, -39, -9, 19, 14, 32, 6, 0, 17, -9, 47, -13, 60, -7, 24, -20, 0, 39, 20, 15, -6, -39, -24, -17, -25, -5, -8, -12, -35, 12, -21, -30, 8, -43, -38, -8, 32, 57, -25, -21, -1, 17, 5, 0, -35, 26, -42, 8, -14, -39, 2, 4, 16, -19, -18, -57, 59, 36, -31, 2, 39, -33, -41, -23, 2, 1, -20, -50, -4, 24, -14, 2, 12, -10, 31, 23, -37, 24, 52, 2, -12, 12, -63, 24, -48, 39, -21, -4, 18, -27, -34, 31, 27, 5, -3, 59, -23, -9, 46, -20, -24, -3, -4, -13, -61, 43, 21, 40, 52, 1, 29, -12, 14, -8, -49, 40, 26, 14, -35, 28, -18, -10, -26, -20, -17, -7, 7, -7, 37, 4, 2, 57, -37, -6, 33, -43, 64, -8, -54, 0, -25, -20, 0, 23, -14, 29, 31, -1, 74, 12, -10, 6, -23, -90, -30, 54, 2, -2, -27, -7, 24, -28, 23, 36, -1, 26, -8, 42, 36, -15, 3, 38, 41, -25, -13, 14, 20, 0, -20, 11, -40, 13, 10, 13, -15, 8, 26, 54, -19, 36, 73, -10, 16, 30, -4, -39, -41, 0, 11, -20, -82, -77, 2, 32, -4, 27, -6, -64, 1, 38, -42, 8, 23, 20, -40, 26, 18, 34, 43, -18, -63, -3, -13, 36, -31, 0, 8, 2, -10, -28, 37, 40, 23, -8, -59, -19, 30, 39, 0, 28, 45, -16, 10, 13, 63, -12, 2, 24, 81, -55, 38, -20, 57, -16, -2, 30, -4, -17, 19, 0, -13, 6, 0, 16, -78, 23, -34, 40, -31, 74, 24, -14, 8, -20, 53, -44, -22, 21, -48, 1, 18, -1, -46, -8, -39, 50, 29, 47, 34, -61, -41, -29, 8, 31, 42, 9, -37, 32, 2, -3, 18, -4, -29, -41, -44, -15, -10, 0, -66, 27, 48, -72, 48, -53, 12, 21, 46, 40, 21, 37, 30, 20, -65, -16, -18, -8, -4, 15, 82, -40, -3, -18, 8, 65, -51, -10, -26, 6, -23, -25, 44, 53, -12, 16, 2, -45, 19, -19, 23, 4, 30, 11, -8, -7, 42, 59, -14, -13, 5, 14, -27, -26, -26, -48, 53, 10, 18, -28, -24, -72, -73, -24, -5, 37, -67, 46, 39, -9, -20, -106, -2, -57, 29, -28, -41, 2, 9, -67, -35, 0, 5, -11, 43, 26, -6, -6, -16, 9, 21, 29, -48, 3, -9, -30, -49, -9, 7, -17, 17, -37, -44, -11, -15, 5, 25, 0, -43, -49, -32, -27, -31, 12, -2, -11, 25, -8, -30, 32, 21, -70, 39, -4, 37, 16, 18, -13, 41, -26, 69, 20, 102, 6, 20, 36, 23, -31, 47, 8, -26, -20, 0, 0, 36, -11, 50, -1, 56, 39, -8, -26, 56 ]
Per Curiam. The opinion of the circuit judge is adopted as the opinion of this court, and the decree affirmed with costs to appellees. “In 1884 Lorenzo A. De Grasse entered as a homestead and subsequently acquired from the United States the title in fee to the N. E. % of section 7, in township 42 north, of range 34 west, in the county of Iron, Mich. “The Verona Mining Company is a corporation now, and for many years, engaged in the business of mining iron ore. On the 29th day of June, 1905, Mr. De Grasse gave the company an option for a mining lease on his land, to continue until July 1, 1906, on condition that the company would commence exploration thereof for iron ore on or before August 1, 1905, and keep not less than three men, or a diamond, or churn, drill, engaged therein on every working day thereafter, unless prevented by the weather, accident, or other reasonable cause, until it should abandon the option, or give written notice to Mr. De Grasse of its intention to take a lease. The option further provided that if the company suspended such exploratory work for 10 consecutive days without adequate cause, such suspension would operate to terminate the option without notice; that the company would have the right to renew the option for an additional period of six months, if, on July 1, 1906, ore sufficient, in the opinion of the officers of the company, to warrant taking a lease had not been discovered; that in the event a lease was demanded it should run for a term of 50 years with right in the lessee to surrender at any time upon giving the lessor 60 days’ notice of its intention so to do; that such lease should provide for the payment of a royalty of 10 cents a ton on all ore mined and removed; for the payment in each year of a minimum royalty on 10;000 tons, whether that amount was mined and shipped or not, the amounts of minimum royalty so paid to be credited on ore subsequently shipped, and to provide for the occupancy by Mr. De Grasse of a certáin portion of the surface of the land for homestead purposes, while such occupancy did not interfere with mining operations. “A form of mining lease was attached and made a part of the option, and it was agreed that the lease issued under the option should follow the form of lease attached, except ‘as. changed and modified’ by the option. “Within the period and in the manner specified in the option the company commenced and proceeded with the exploration of the land for about nine months, when it demanded a lease, and thereafter, on June 12, 1906, the parties entered into the mining lease in question in this suit. It is not disputed but the lease which was. executed, in all its essential terms, covenants, and conditions, is an exact copy of the form of lease which was attached to the option, and contains all the provisions, which the option stipulated it should contain, except that the option was for a lease for mining and ‘removing’ iron ore, and the lease reads for ‘mining’ simply. “It appears from certain deeds introduced by the complainants, that while the option and lease were signed by Louise De Grasse, she did not, at the time of their execution, have any inchoate or other interest in the land. By conveyances, executed in February, 1907, and in November, 1908, the title to the land passed from Lorenzo A. De Grasse and vested in Louise Moger, now Louise De Grasse, an undivided %; in William H. Jobe an undivided 3/32; in Michael H. Moriarty an undivided 3/32; in Herbert M. Pelham an undivided 1/16; in Annie M. Cook, an un divided 1/16, and in Anna E. De Grasse, an undivided 3/16. “On or about June 12, 1912, a notice in writing signed by Lorenzo A. De Grasse, Louise De Grasse, and William H. Jobe was served on the Verona Mining Company to the effect that the lease in question had been forfeited by the company for failure to mine the property as contemplated by the terms and conditions of the lease; that they would accept no further payments of royalty under the lease, and calling upon the company to execute and deliver to them an instrument effective to remove the cloud on their title occasioned by the record of what was termed in the notice the ‘forfeited’ lease. “Shortly following the service of the notice of forfeiture, Mr. and Mrs. De Grasse, Mr. Moriarty, and Mr. Jobe filed the bill of complaint, by which this suit was commenced, against the Verona Mining Company, Herbert M. Pelham, Annie M. Cook, and Anna E. De Grasse. The Verona Company answered, and the case as to it was heard on the pleadings and proofs taken in open court. The bill of complaint was taken as confessed by the other defendants. “The contentions of the complainants are: First, that the lease was fraudulently obtained, and should be set aside for that reason; second, that it was void under section 12, art. 18, of the Constitution, as it stood at the date of the lease; third, that if the lease was fairly obtained, and did not contravene the Constitution, nevertheless it was forfeited through the company’s failure to comply with and perform the covenants thereof, and a decree, declaring the lease void from the beginning, and, if not, terminated by forfeiture, is prayed for. “In the vicinity of the De Grasse lands are a number of iron mines in active operation. Some of these mines were in operation years before the making of the option in question and have continued on the active list ever since. Among these are the Baltic, Caspian, and Zimmerman. The latter is located on lands adjoining on the west and has a working shaft within about 25 rods of the De Grasse property. At the date of the option the Verona Company was operating under mining leases the Baltic and the Caspian, as well as other mines and explorations, in the Iron River and other iron districts of the Upper Peninsula of Michigan, and in Minnesota. Before and at the date of the option and lease, and for a number of years thereafter, Mr. Jobe was employed by the Verona Company as superintendent of its mining and exploratory operations in the Iron River district, with headquarters at Stambaugh, Mich. During the same period Mr. Charles E. Lawrence, with headquarters at Iron Mountain, Mich., was general superintendent, and Mr. C. H. Munger, with headquarters at Duluth, Minn., was general manager of the company. “The explorations of the property conducted by the Verona Company, after the option was given and before the lease was demanded, consisted of four diamond drill holes. From the date of the lease until 1909 no further exploratory work was done on the property. In 1909 an exploring shaft was sunk to a depth of about 100 feet, and two drill holes were extended from the bottom of the shaft, one to the north a distance of about 425 feet, and the other to the south a distance of about 578 feet. Since the completion of the drill holes, which were projected from the bottom of the shaft, no further exploratory work has been done on the property. The exploratory work performed, both before and after the date of the lease, did not disclose the presence of a minable body of merchantable ore on, the land. The ore deposit on the Zimmerman property is said to dip towards the De Grasse property, and since the suspension of the drill work on the latter property, the Verona Company claim they have been awaiting the further development of the Zimmerman property, which, they further claim, will establish whether ore exists on the De Grasse property, and, if so, the location thereof. “From the date of the lease the Verona Company-has paid all taxes levied on the land, and paid to the persons entitled all -minimum royalty which became payable under the terms of the lease, up to March, 1912, inclusive, and has duly tendered to the persons entitled all minimum royalty which became payable since that date. “It is claimed by the complainants that before the execution of the lease the company, through statements of its officers, and the recitals of the lease, represented to Mr. De Grasse that merchantable ore in paying quantities had been discovered on the land, and if it is now concluded, as the company asserts, that merchantable ore in paying quantities had not been discovered, such representation was false and fraudulent; that Mr. De Grasse believed such representation to be true, and would not otherwise have executed the lease. The recital in the lease upon which reliance is had, in part, in support of the contention that the company made such representations, reads: ‘The party of the second part, having explored the said premises, represents that there exists thereon iron ore in paying quantities.’ The recital appears in the fourth paragraph of the lease. “Gribben v. Atkinson, 64 Mich. 651 [31 N. W. 570], was an action to recover minimum royalty under the covenants of a mining lease. There was evidence tending to show, and the jury was instructed, the lessee would not be liable for the minimum royalty if they found the lessee had expended the money necessary, and done all that good mining would require to discover ore, and merchantable ore in sufficient quantity to make the mining thereof profitable did not exist on the land. The instruction was approved, the court saying: “ ‘If upon diligent search and exploration, no ore was found, and none exists in or under the soil, the lessee cannot he held liable for the royalty upon such ore.’ “Blake v. Lobb’s Estate, 110 Mich. 608 [68 N. W. 427], was also an action to recover unpaid rent under the covenants of a mining lease similar to the lease considered in Gribben v. Atkinson, supra, except that in the Gribben lease the payment was designated as ‘royalty,’ and in the Blake lease as ‘rent.’ In the Blake Case the doctrine of Gribben v. Atkinson, supra, was reaffirmed, and it was held that where the lessee had made the proper excavations, and used all reasonable effort to discover ore, and it was found that merchantable ore in sufficient quantity to make the mining thereof pay did not in fact exist on the land, the lessee was not liable, and that while the sum to be paid was called ‘rent,’ the agreement to pay it was based on the supposition that ore existed. “Blake v. Lobb’s Estate, supra, was decided in 1896, and it was testified, that it is customary, and it is a matter of common knowledge throughout the Michigan iron mining fields, that from that time forward it has been customary to include in iron mining leases a representation by the lessee that he has explored the land, and that ore in paying quantities exists thereon, whether at the time ore has been discovered or not, with the object of estopping the lessee from denying the existence of merchantable ore in paying quantities, whenever the existence of ore is important in establishing any right of the lessor under the lease. While, therefore, it is generally agreed that the recital is effective to estop the lessee from denying the existence of ore whenever the existence of ore is material, nevertheless, standing alone, it is entitled to but scant weight in proof of the claim that the lessor was led thereby to believe that ore in min-able quantity had really been discovered. “To entitle one to avoid a contract on the ground that he was induced to enter into it upon the faith of unwarranted representations, it is essential that he should be ignorant of the matters represented. If, before he acts, he has knowledge of the truth, and thus knows the statement is not. true, it cannot be said he is deceived. .20 Cyc. p. 82. Therefore whatever effect should be given the recital above quoted, in a case where the lessor did not know the conditions, is not important here. From the testimony as a whole, and more particularly the testimony of the complainant Jobe, it fairly appears, that at the time he executed the lease, Mr. De Grasse was well informed of the results of the exploratory work, and knew that iron ore in quantity and quality sufficient to warrant opening up and mining the same had not then been discovered. The exploratory work was conducted under the direct supervision of Mr. Jobe, which Mr. De Grasse, who was constantly on the ground watching the drillwork, well knew. Mr. Jobe testified: “ ‘Q. You had a record of the drill cores as the drills went down? “ ‘A. Surely. “ ‘Q. And Mr. De Grasse was about there as often as he could be, wasn’t he? “ ‘A. He was there very frequently. “ ‘Q. Would that quite express it — he was there pretty nearly all the time you were drilling, wasn’t he? “ ‘A. I very frequently saw him when I went there. “ ‘Q. And you did make a record in the ordinary way of doing that, didn’t you? “ ‘A. Yes, sir. “ ‘Q. You caused the record to he made yourself, didn’t you? “ ‘A. It is a part of our program of work there. “ ‘Q. What I mean is you caused it to be done? “ ‘A. I did. “ ‘Q. In fact you had charge of it, and had it done under your direction? “ ‘A. Yes, sir.' “ ‘Q. I put this in your hand [a blueprint showing the results of the drillwork], and ask you if that is a blueprint of the drilling that was done? “ ‘A. It probably is. “ ‘Q. You recognize it, don’t you? “ ‘A. I believe that it is; yes, sir. “ ‘Q. The top part of it shows the first four holes? “ ‘A. The four holes from surface. “ ‘Q. And that is the record you caused to be put on there, isn’t it? ‘“A. Yes. “‘Q. And it is correct, isn’t it? “ ‘A. I believe it to be correct. “ ‘Q. And the bottom part is the record of the exploring shaft, with the drilling that was done from that, is it not? “ ‘A. I believe it to be; yes. “ ‘Q. That also you caused to be made? “ ‘A. Yes, sir. “ ‘Q. Can you tell to refresh your memory, about how long these diamond drill holes were from the bottom of the shaft? “ ‘A. I could tell only from this blueprint. “ ‘Q. Can you refresh your memory and state? “ ‘A. This one to the south was 573 feet. “ ‘Q. And that one to the north? “ ‘A. That to the north was 425 feet. “ ‘Q. The statements, that is, the figures along the sides, are intended to show what it encountered, are they not? “ ‘A. They are. “ ‘Q. When you were working on the property, you found, did you not, that the drills in the holes you put down struck the ore formation? “ ‘A. Yes; we did. “ ‘Q. And by tbe formation wbat do you mean? “ ‘A. Well, we mean tbe mixed material that would carry some signs of ore, and some color that might be red and indicate a low iron content, too low to be commercially profitable. “ ‘Q. And each of these four holes struck the ore formation, did they not? “ ‘A. I am not sure as to that — three did, and possibly four, but I am not sure. “ ‘Q. At least three of them did? “ ‘A. I believe three of them did. “ ‘Q. Did they strike a minable body of ore — that is, you went through little bodies of ore, but nothing large enough to mine? “ ‘A. No. “ ‘Q. Notwithstanding, you believed, and Mr. Lawrence believed, that you were in the presence of or near by an ore body on that property, did you not? “ ‘A. Yes; we thought there was something of value there and wanted to find it, but we failed to find it in our work. “ ‘Q. You told Mr. De Grasse the truth as you went along, didn’t you? “ ‘A. Always told the truth. “ ‘Q. You told him you had not struck the ore body in those drill holes? ‘“A. I did. “ ‘Q. So that he clearly understood that from you from the beginning to the end, didn’t he? “ ‘A. He understood what we were doing there. “ ‘Q. And he understood you had not been able to locate the ore body so as to be able to put down a shaft, didn’t he? ‘“A. Yes.’ “The conclusion that before the execution of the lease the officers of the company did not in fact represent the discovery, and that at the time of the execution of the lease Mr. De Grasse, notwithstanding the contrary recital of the lease, knew that merchantable ore in paying quantities had not, in fact, been discovered on the land, disposes of the claim that he was fraudulently induced to execute the lease, but, assuming the making of the representation as claimed, and the result on this branch of the case must be the same. “Options for mining leases which expressly relieve the fee owner from the obligation to deliver the lease unless a workable mine exists, or a specified tonnage of merchantable ore is first developed, are common, but the option we are considering is not of that class. The option here in question, also a form in common use, gave the Verona Company the right to demand and receive a mining lease at any time within one year upon the condition that it would commence within a period, and continue in a manner specified, the exploration of the property until it should demand a lease or abandon the option. The language of the option is very plain. Under it Mr. De Grasse was obliged to execute and deliver the lease on demand, whether, when such demand was. made, ore was discovered or not, on the sole condition that up to the time of such demand, the company kept the option alive by commencing and continuing the required exploratory work. Whether, therefore, the company represented the discovery of ore previous to the execution of the lease, and if so, whether such representation was accurate, or the contrary, is of no consequence. It should need no citation of authority to the effect that Mr. De Grasse cannot be heard to say he was induced to execute the lease upon a misrepresentation of a certain fact, when he was bound by his contract to execute the lease, whether the fact alleged to have been represented was true or otherwise. “The representation, whatever its character for accuracy, was made to Mr. De Grasse, and not to any other person or persons who previous to the execution of the lease had any interest in the land. As. early as 1908 Mr. De Grasse parted with his title to-the land, and from thenceforward he has had and now claims no rights in the land or lease which have-been called to the attention of the court. As a general rule, complaint may be made of a false representation only by the person to whom it was made.with intent that he should act on it, or by one to* whom the party making the representation intended and expected it would be communicated (20 Cyc. p.. 80), and if there is authority for the position that the grantees, of Mr. De Grasse are entitled in this, or any other, proceeding to notice the means by which he was induced to execute the lease, attention has. not been called thereto. “No ore has been mined under the lease. That the exploratory work of the Verona Company has not been carried to an extent sufficient to disclose whether a minable deposit of merchantable ore exists on the land appears by the proofs, and the main question in this case is whether the failure of the Verona Company to further explore and to mine entitled the complainants to forfeit the lease. “The lease does not expressly provide for operation of the property. On the argument at the hearing the complainants’ position was that the language of the lease, the situation of the parties, the subject-matter of the contract, and the circumstances surrounding its execution, fairly justified .the implication of a covenant to explore and mine. After the statutes and Michigan decisions hereinafter cited, bearing on the right to add covenants to leases by implication, were invoked, complainants’ counsel shifted to the position that by implication exploration and mining is included as a condition of the continuation of the lease. The claim of an implied obligation to explore and mine is founded on the alleged promise of the Verona Company, made through its superintendent, Mr. Jobe, that it would thoroughly explore the land, and if ore was found, mine it ‘in a big way,’ and on certain language of the lease. If the language of the lease to which attention is directed, and which will be noticed later, is construed as the complainants contend it should be, an implied agreement to operate, and not a condition making the continuation of the lea.se to depend upon operation of the property, will be the result. That the Verona Company agreed to operate is the contention. Such was the position taken by complainants’ counsel on the arguments, and is adhered to in their briefs, which were subsequently filed, and where they say: ‘The Verona Company by acceptance of the lease impliedly agreed it would work the mines on the premises’ and ‘an implied agreement that the mines on the property shall be opened with reasonable diligence and worked to a reasonable extent’ is essential ‘to carry out the manifest intention of the parties.’ If what Mr. Jobe is alleged to have said to Mr. De Grasse is read into the lease, clearly it would amount to a promise under seal to explore and mine the property. A covenant is a promise, or agreement under seal, to do or not to do a particular thing, while the office of a condition is, generally, to indicate the terms upon which a certain right will arise, or continue, or be defeated. The case presents no basis for a condition such as is claimed, and we are limited to the inquiry whether the lease includes by implication a covenant to explore and mine, and, if so, whether the failure of a lessee to observe a covenant found by implication entitled the lessor to exact a forfeiture of the lease, under a clause which allows a forfeiture for nonobservance of the covenants and conditions ‘therein contained.’ “A ‘thorough’ exploration of the land would mean a complete, perfect search thereof, which would absolutely demonstrate whether it contained iron ore, and if so the exact boundaries and character of the deposit, an exploration of a scope which, it may be ventured, was never undertaken by any ordinarily prudent optionee or lessee of a Michigan mining property, and all but, if not quite, impossible of fulfillment if undertaken; and a covenant to mine ‘in a big way’ would, through its uncertainty, defeat itself. Realizing the futility of claiming a covenant to be measured by the promise which it is alleged Mr. Jobe made to Mr. De Grasse, taken literally, the complainants abandoned that claim and insisted on an implied obligation to explore and mine'with reasonable diligence and to a reasonable extent. “If we accept as correct the complainants’ position that the language of the lease is not free from doubt or uncertainty on the question whether the lessee was obliged to explore and mine, and take into account the situation of the parties, the subject-matter of the contract, and the circumstances surrounding its execution to aid in construing the same, the result nevertheless is the conclusion that it does not contain, and that neither party understood or expected it contained, a covenant to explore or mine. “It appears that Mr. De Grasse was anxious to option his land to the Verona Company, and to that end applied at various times to Mr. Jobe, with whom he was on close, friendly terms, and who for a time lived at the De Grasse home; that he also importuned Mr. Lawrence to take an option-; that finally Mr. Lawrence presented an option upon a 10-cent royalty basis, which Mr. De Grasse declined to execute; that all subsequent negotiations relating to the option were carried on between Mr. De Grasse and Mr. Jobe, who are substantially in accord, respecting what, of interest in the present discussion, was said by each in the course of such negotiations, which were comprised in two conferences, the first about a week following the refusal of Mr. De Grasse to sign the option presented by Mr. Lawrence, and the second a few days later. Having challenged attention to his own and the mining experience of other officials of the company, the enterprise and business connections of the company, the extent and manner of its operation of other mines in the neighborhood and elsewhere, its needs and uses for large quantities of ore of different grades, its facilities for producing, transporting, and disposing of such ore, and generally the progressiveness and aggressiveness of the company in the iron ore fields of Michigan and Minnesota, Mr. Jobe, by way of what he called ‘argument’ to overcome the objection of Mr. De Grasse to a 10-cent royalty said, in substance, that the company would not accept an option which specified royalty above 10 cents a ton; that he thought it would be to the advantage of Mr. De Grasse to consent to a 10 rather than to insist on a 15 cent rate, because he thought the company in dull times would operate more continuously under a 10 than it would under a 15 cent rate; that at a 10-cent rate they would not, or' would not be so apt to, shut down the property; that upon receiving the option the company would explore the land ‘thoroughly’ and, if ore was found, ‘mine it in a big way.’ “It appeared from the public records of leases which were introduced, and other evidence offered, that during many years before, at the time, and ever since the execution of the De Grasse lease, leases of iron properties in the district where the De Grasse lands are situated, and throughout the Michigan iron mining section, were of two general classes; leases which provided for the payment of taxes, a fixed annual minimum royalty, and, in addition, an express covenant to mine, usually to the capacity of the mine or market, and which are commonly known as ‘maximum mining clause leases,’ and leases which obligated the lessee to pay taxes and a fixed annual minimum royalty, with the privilege of mining, but without an express covenant to mine. It further appeared that applicants for mining leases, particularly corporations desiring to provide for a future supply of ore, commonly sought leases without, while the fee owner commonly insisted the lease should contain, an express covenant to mine, and that the features most important and principally discussed in negotiations for options for mining leases are the length of the lease, the rate of royalty on ore removed, the amount of the annual minimum royalty, and whether or not the lessee shall be obligated to explore and mine. “Mr. De Grasse occupied the land from his entry thereof as a homestead in 1884; neighbors and friends of his who owned lands adjoining and in the vicinity had given options and leases to the Verona Company, and to other corporations and persons; he lived in an atmosphere of mining, mining options, and mining leases, for many years, and it is a fair inference that he was familiar with the whole subject; that he knew some mining leases obliged the lessee to explore and mine and others did not, and that the option he was about to execute called for a lease of the latter class. “Mr. Jobe did not say, and it will be observed Mr. De Grasse does not claim he said, the lease would obligate the company to mine in a big way, or in any way, which justifies the conclusion that Mr. De Grasse understood Mr. Jobe, not as stating what the company would be obliged by the terms of the lease to do, but what he thought, and no doubt believed, it would do. That Mr. De Grasse did not execute the option under the belief that it provided for a lease which would obligate the company to mine, and that his expectation that the property would be promptly explored and mined was based upon the conduct of the company in relation to other explorations and mines, and in reliance on Mr. Jobe personally, was voiced by himself. He testified: “ ‘Mr. Jobe told me tbe company would go to work and explore the property thoroughly and open it up, and I had known him a long time and well, and I had confidence in him, and I believed he would do what he said.’ “If anything more is wanting to establish that both Mr. De Grasse and Mr. Jobe understood the lease did not contain an operating clause, and that to operate or not would be at the option of the Verona Company, it will be found in the negotiations for the option. In the course of these negotiations Mr. Jobe warned Mr. De Grasse — which warning the latter understood and appreciated so well he dropped his royalty demand from 15 to 10 cents a ton — that if the very lease we are considering was written at 15 instead of 10 cents per ton, the company probably would suspend operations whenever and as often as conditions did not suit them. It must have been plain to Mr. De Grasse that if the company would have the right to suspend operations at will’under a lease exacting a 15-cent royalty, it would have the same right, under a lease containing the same words and upon precisely the same covenants and conditions, except as to the royalty rate. “An effort was made to show that under leases such as is under consideration, it was customary for the lessees to operate or not, as suited their convenience. Whether it was customary for lessees not to operate continuously or at all, under such leases, and whether such lessees have the right to suspend operations at will, on payment of taxes and minimum royalty, are different matters. It appeared that some such lessees worked while others did not, which proves nothing, except that some found it profitable while others found it unprofitable to operate continuously. The existence of a uniform custom or practice was not shown, but it was shown that whether the lease should or should not contain an operating clause was, and is, usually a matter of bargain, and whatever the rights of lessees under such leases may be, it was established by the proofs, and it is notorious that options and leases have been taken, and vast fortunes, invested therein, upon the belief that under such leases the lessee is privileged to explore and mine, or to refrain from so doing, at will, upon payment of the annual minimum royalty and the taxes. “Attention is called to certain features of the lease which are claimed to evidence an agreement to operate, viz.: That the lessee is granted ‘the right to mine;’ that the lease was. granted ‘on consideration of the prompt, continuous and full performance of the covenants and conditions therein contained,’ and requires ‘that all mines of iron ore on the premises shall be opened, used and worked,’ in the usual and customary manner. The grant of the right to mine and the omission of words requiring operation does not indicate the inclusion of a covenant to, or a condition requiring operation, but the opposite. The consideration for the demise as expressed therein was the payment of the rents and royalties therein provided to be paid by the lessee, and ‘the prompt, continuous and full performance of the covenants and agreements therein contained.’ To give this part of the lease the meaning claimed for it, it would be as unnecessary as unwarranted to insert the word ‘explorations’ after ‘prompt,’ and word ‘mining’ after ‘continuous.’ The words are plain and their meaning not obscure. By payment of the rents and royalties as they fell due, and the prompt, continuous, and full performance of all other covenants — and we will add, conditions — of the lease, whatever it is concluded they were, discharges the lessee respecting the consideration. “The clause of the lease to which attention is specially directed comprises the eighth paragraph thereof, and reads: ‘“All mines of iron ore on said premises shall be opened, used and worked in such manner as is usual and customary in successful mining operations of similar character when conducted by the proprietors themselves, and so as not to do or permit any unnecessary or unusual injury to the same, or inconvenience or hindrance in the subsequent operations of any mine or mines on said premises. Said second party expressly covenants not to remove or impair any support, timber, frame works, shafts, ditches, tramways, or approaches necessary or convenient for the use or maintenance of such mines or other property or improvements, except as hereinafter provided, and all rock, earth, and rubbish taken from said mines shall he dumped in such places as not to interfere with the convenient working of any mine or mines on said premises.’ “It may be asserted that the above quoted clause, perhaps varying slightly in phraseology, will be found in almost every mining lease of a Michigan property, and it is a matter of common knowledge that it is intended, as. the words of the clause plainly indicate, not to require the lessee to open, use, and work the mine, but to fix and settle the manner in which the lessee, whenever he undertakes to do so, shall open, use, and work the mine. The object of the clause is to prevent a waste of ore and unapproved methods of mining, and to compel the lessee to leave the mine, upon termination of his lease by surrender or limitation, in a good, safe, workmanlike condition, and so that the lessor may, if he desires, further proceed with the operation of his property without the expense of reopening the same. But if it is concluded that the above-quoted clause constitutes an agreement ‘to open, use, and work the mine in such manner as is usual and customary in successful mining operations of similar character when conducted by the proprietors themselves/ no evidence is recalled tending to show what is the usual custom of the proprietors of mining property respecting the opening up, using, and working thereof. Evidence was introduced touching the practice of lessees, but there are many considerations which would move a lessee to operate which would not affect the fee owner. We may not imply, in the absence of proof on the subject, what the fee owner would do, and if we were at liberty to do so, it cannot be said the implication would be warranted that the owner of a tract of land upon which iron is not known to exist, although financially able, would risk an outlay running possibly into $100,000, or even more, in searching for what he knew he might not find, when by standing by he could have the question whether ore existed on his land settled by the mining operations of his neighbor, without the risk of a single dollar. “The fourth paragraph of the lease, which is commonly known as the ‘minimum mining clause’ reads: “ ‘The pariy of the second part, Raving explored the said premises, represents that there exists thereon iron ore in paying quantities, and agrees that if in any calendar year, for any reason, it shall mine and remove less than ten thousand (10,000) tons of iron ore, it shall nevertheless pay as stipulated ground rent royalty at the rate of ten (10) cents per ton on ten thousand (10,000) tons; said ground rent to be paid quarterly and on the dates when royalty is due, as hereinbefore provided. If the ground rent has been paid in any year, and no ore or less than the minimum amount has been removed from the prop erty by the party of the second part, the royalty paid on ore not removed may be applied as payments of royalty on ore exceeding ten thousand (10,000) tons removed in any succeeding year, but no excess product of any year shall be applied to the deficiency of any succeeding year.’ “The language of this clause established beyond question that the lessor contemplated that in some years no ore would be mined, and, anticipating that the lessee might elect not to mine, and, in order that he should nevertheless have a settled, steady, annual net income from the property during the continuance of the lease, he exacted, and the lessee covenanted to pay, all taxes levied on the land, and in addition, $1,000 in each year when no ore was mined, and at least $1,000 in each year whether ore was mined or not. The right of the lessee to mine or not to mine is clearly recognized by this clause, not only when the mine would not produce 10,000 tons, or when the market would not take 10,000 tons, or when circumstances beyond control prevented the mining of 10,000 tons, but when, for any reason, mining from the point of view of the lessee was undesirable, and so, if we have evidence in the lease tending to support an implied covenant to operate, we have also in the lease evidence of equal, if not greater, weight, of opposite tendency, and therefore the raising of an implied covenant to operate is prevented by the familiar rule that an implied covenant will not be lightly raised, and never is justified, except where the evidence in support is clear and convincing. “In support of the position that a covenant may, and that under the facts and circumstances of this case should, be found by implication, a long list of cases from other jurisdictions have been cited. These cases have been examined. Many of these cases concern leases for the operation of oil and gas wells. The effect of the subject-matter of such leases upon the development of the intention of the parties is apparent. “ ‘Light will be thrown upon the language used, and the intention of the parties will be better reflected/ said Judge Van Devanter in Brewster v. Zinc Co., 140 Fed. 801 [72 C. C. A. 213], ‘if consideration is given to the peculiar and distinctive features of the mineral deposits which are the subjects of the lease. Oil and gas are usually found in porous rock at considerable depths under the surface of the earth. Unlike coal, iron, and other minerals, they do not have a fixed situs under a particular portion of the surface, but are capable of flowing from place to place and of being drawn off by wells penetrating their natural reservoir at any point. They are part of the land, and belong to the owner so long as they are in it, or are subject to his control; but when they flow elsewhere, or are brought within the control of another by being drawn off through wells drilled in other land, the title of the former owner is gone. So, also, when one owner of the surface overlying the common reservoir exercises his right to extract them, the supply as to which other owners of the surface must exercise their rights, if at all, is proportionately diminished.’ “The subject-matter of an oil or gas lease is migratory while the subject-matter of an iron ore lease is not. The less gas or oil, as the case may be, drawn out, the less the property will produce, while the less iron ore taken out the more remains in the mine. “Of the other cases cited it will be sufficient to say that in none of them was the lease, or the situation of the parties, or the illuminating circumstances and surroundings, similar to this case. To review all these cases would not be profitable, as, perhaps, the preceding review of this case was unnecessary, inasmuch as the question whether a covenant to mine may, by implication, be found in the lease under consideration is settled in the negative by the statutes, and decisions, of our own State. “Section 8959, 3 Comp. Laws, provides: “ ‘No covenant shall be implied in any conveyance of real estate, whether such conveyance contains special covenants or not.’ “Section 8994, 3 Comp. Laws, provides: “ ‘The term “conveyance,” as used in this chapter, shall be construed to embrace every instrument in writing, by which any estate or interest in real estate is created, aliened, mortgaged or assigned; or by which the title to any real estate may be affected in law or equity, except wills, leases for a term not exceeding three years, and executory contracts for the sale or purchase of lands.’ “Section 50, 1 Comp. Laws, provides: “ ‘The word “land” or “lands” and the words “real estate” shall he construed to include lands, tenements, and real estate, and all rights thereto, and interest therein.’ “Lieberthal v. Montgomery, 121 Mich. 369 [30 N. W. 115], was an action brought to recover rent paid in advance for the use of a storeroom which was damaged by fire. There was no covenant in the lease, which was in writing, to repay the rent in case of fire, and it was held under section 8959, above quoted, that no such covenant could be implied. Minnis v. Newbro-Gallogly Co., 174 Mich. 635 [140 N. W. 980, 44 L. R. A. (N. S.) 1110], was a bill by a tenant to compel his. landlord to repair rooms occupied by the tenant which had been rendered untenantable by fire, and to decree damages for the failure of the landlord to make such repairs. The lease, which was for a term of nine years, did not contain a covenant on the part of the landlord to repair the premises. It was there held: “ ‘There being no express covenant in this lease, on the part of defendant, to repair the premises, and the statute (section 8959, 3 Comp. Laws) referred to precluding, in our opinion, any inquiry as to whether or not a proper construction of the instrument might imply one, it follows that no relief in damages for breach or for specific performance could be granted, under the allegations and averments in complainant’s bill.' “See, also, Thorkildsen v. Carpenter, 120 Mich. 419 [79 N. W. 636], where it is held: “ ‘Courts cannot read covenants into deeds. This would be in direct contravention of the statute.’ “Ziegler v. Coal Co., 150 Mich. 82 [113 N. W. 775, 13 Am. & Eng. Ann. Cas. 90], where it is held: ‘covenants cannot be implied in conveying real estate.’ “Negaunee Iron Co. v. Iron Cliffs Co., 134 Mich. 264 [96 N. W. 468], and Blake v. Lobb’s Estate [110 Mich. 608, 68 N. W. 427], are cited to the opposite effect. In neither of these cases was the question whether a covenant may be found in a deed or lease by implication involved, considered, or decided. In the Negaunee Iron Co. Case the meaning to be given certain words found in a deed was under considera tion, and the rule was reaffirmed that recourse may be had to the whole instrument, and, if need be, to the subject-matter of the transaction, the acts, conduct, and dealings of the parties, to ascertain the meaning to be given to any particular word or words found in such instrument. The case is authority for the position that the true intent and meaning of a covenant which is written in an instrument involving real estate may be found by construction, but-it is not authority for the position that a covenant which is not written in the instrument may be added thereto by construction. Generally speaking, all rules of construction which obtain in relation to other written instruments are applicable to instruments of conveyance, with the exception that if the particular covenant claimed is not expressed in a writing involving real estate, the statute prohibits a search for it. In the Blake Case the court said: ‘The scheme of a mining lease implies that ore exists’ on the land. That when dealing therewith some matters may be taken for granted by the courts is as true of instruments involving real estate as it is of other instruments. For example, that both parties, contemplate the thing around which the contract is built exists is always implied as a matter of course. “It is contended, further, that if no covenant can be implied in a mining lease,' the lease in question is void for uncertainty, because, while it expressly confers on the lessee the right to mine, it does not expressly confer the right to remove iron ore from the premises. The lease provides for the payment of a royalty on all ore mined and ‘removed’ from the premises; that if the lessee shall mine and ‘remove’ less than 10,000 tons in any year, it shall nevertheless pay on that tonnage a stipulated ground rent; that if no ore, or less than the minimum amount has been ‘removed’ from the property, the royalty paid on ore not ‘removed’ may be applied as payment of royalty on ore exceeding 10,000 tons ‘removed’ in any succeeding year; that all ore mined and ‘removed from said premises.’ shall be weighed in a manner indicated ; and that the lessee may build railroads on the premises for the purpose of ‘transporting’ the ore therefrom. If more than the foregoing is necessary to show .express permission to ‘remove’ ore, the lease should not, for that reason, be avoided, but reformed. The option was ‘for a lease for mining purposes and removing iron ore’ from the described lands. That it was the intention of both parties to include in the lease the right of removal of the iron ore mined is undoubted, and if it is found to have been omitted, its omission was a mutual mistake. But whether the lease expressly permits the removal of the ore and, if not, what should be done are matters neither covered by the pleadings nor essential to dispose of in this case. “But assuming that a covenant to operate the property may be implied, and that the Verona Company failed to perform such implied covenant, yet the right to forfeit the lease would not follow. The right of forfeiture is confined to the failure of the lessee respecting the covenants and conditions which are expressed in the lease, and does not arise upon the nonobservance of an implied covenant or condition. In Miller v. Havens, 51 Mich. 482 [16 N. W. 865], it is held: “ ‘The common-law doctrine of forfeiture,' being founded on strict feudal principles, is now believed to be unjust in many respects, and not applicable to the present state of society, and an interpretation which creates a forfeiture is not to be favored, * * * and statutes creating penalties and forfeitures should receive a strict construction. * * * Courts do not favor forfeitures, * * * and equity will not assist the recovery of a penalty or forfeiture, or anything in the nature of a forfeiture. * * * It has, for a very long period, been the policy of the law, and courts have felt it their duty in administering the law, so far as possible, to limit the effect of a clause or provision in a lease or statute by which a forfeiture is created.’ “Hough v. Brown, 104 Mich. 109 [62 N. W. 143], was replevin for certain crops, brought by the landlord against his tenant, upon the claim of forfeiture of and re-entry under the lease. It was there said: “ ‘If it be conceded that the relettings were subject to the terms and conditions of the original lease, the provision relating to re-entry cannot be held to apply to implied covenants: Suppose that the new lease had been reduced to writing, and the agreement to turn over to the lessor one-third of the crops had been substituted for the agreement to pay a specific annual rental, and then followed the clause providing that, should the tenant “fail in any of the foregoing premises,” etc., can it be said that the right to declare a forfeiture followed a failure to perform a promise not expressed, but implied? We think not. The implied agreement must be regarded as a naked covenant, and the right of re-entry must be held to apply in case of default respecting express promises. Forfeiture clauses in a lease are not favored, and their effect will be restricted as far as possible.’ “Somers v. Loose, 127 Mich. 77 [86 N. W. 386], also was replevin for a quantity of hay, brought by the landlord against his tenant upon a claim of forfeiture of and re-entry under a lease. The lease contained no covenants as to husbandry, and it was there held: “ ‘There being no express covenants as to husbandry, the clause in regard to re-entry does not apply to implied covenants.’ “In Wakefield v. Mining Co., 85 Mich. 605 [49 N. W. 135], the court said: “ ‘But it is claimed that defendant has violated the condition of the lease respecting the cutting of timber upon the lands in question. This, however, is not one of the acts or neglects for which a forfeiture may be declared, or a re-entry may be made, under the lease. The provisions regarding forfeiture will be strictly construed. The lease provides that: “If it shall so happen that the royalty or rent above reserved and agreed to be paid be behind or unpaid at the time or on the days above mentioned for the payment thereof, or in case said taxes or assessments are not paid in due and timely season, or in case of the nonperformance of any of the covenants made by said parties of the second part at any of the times mentioned for the performance thereof” — then a re-entry may be made. Mr. Wakefield, when asked regarding the cutting of the timber, replied: “I should expect that, if the tenant kept a lease — the life of the lease specifies 20 or 25 years — he would remove every stick of it, and a great deal more.” The life of the lease is 30 years, and it was not strange that the parties were satisfied that this covenant should rest in contract alone, without the additional security of right of forfeiture.’ “In Harris v. Oil Co., 57 Ohio St. 118 [48 N. E. 502], the syllabus reads: “ ‘Where the forfeiture clause in such a lease is to the effect that a failure on the part of the lessee to comply with the conditions, or pay the cash consideration in the lease mentioned, at the time and in the manner agreed, then the lease to he null and void, and not binding on either party, and oil being produced in paying quantities through wells drilled on the lands by the lessee under the lease: Held, that the lessee has a vested interest in the lands; that to work a forfeiture of the lease, there must be a breach of a condition or covenant which is mentioned in the lease; that a breach, of an implied covenant does not work a forfeiture of the lease; and that certain causes * * * cannot be implied.’ “At page 131 [of 57 Ohio St., at page 506 of 48 N. E.] the court said: “ ‘It is strongly urged that it is inequitable for the lessee to hold onto his lease and still fail to so operate the premises as to produce reasonable results, and that he should either reasonably operate the premises or get off and permit his lease to be forfeited. The answer is that while there is an implied covenant to reasonably operate the premises, there is no implied or express covenant to get off and forfeit his lease for a breach of such covenant. “ ‘The lease in question provides for a forfeiture for the failure to comply with the conditions, or to pay the cash consideration in the lease mentioned, at the time and in the manner agreed; but the implied covenant, to reasonably operate' the- premises, is not mentioned in the lease, and is therefore not included in the causes of forfeiture. Some causes of forfeiture being expressly mentioned, none other can be implied. * * * The remedy for a breach of the implied covenant to reasonably operate the premises is therefore not by way of a forfeiture of the lease in whole or in part, but must be sought in a proper action for a breach of such covenant.’ “In Snyder on Mines, § 1292, the author says: “ ‘Nonpayment of rent is not always a forfeiture bearing covenant. It is only so when the parties make it so; and if the parties merely provide a certain rent without providing for forfeiture for nonpayment, a right of action for the rent, but no forfeiture, accrues to the lessor for nonpayment.’ “In McKnight v. Kreutz, 51 Pa. 232, it is held: “ ‘There is nothing in the words of the lease that can by any just construction be regarded as making the tenure of the lessee dependent upon his compliance with any other covenants than those which relate to the rent. The utmost that can be made of the stipulation that the lessee should dig coal in such a manner as to do no injury to the surface of the land, and not spoil the coal itself, is that it constitutes a covenant, the breach of which may subject the lessee to liability for damages, but not to forfeiture of his estate. Conditions that work forfeitures are not favorites of the law, and nothing less than a clear expression of intention that a provision shall be such, will make it a condition upon which the continuance of an estate * * * depends. * * * Having expressed for what causes-a. forfeiture might be claimed, it is not to be inferred that there are any grounds of forfeiture not declared to be such.’ “It remains to consider whether the lease was in conflict with section 12, art. 18, of the Constitution in force at the time of its execution, which read: “ ‘No lease or grant hereafter of agricultural lands for a longer period than twelve years, reserving any rent or service of any kind, shall be valid.’ “In the present Constitution the section reads as before, except the words ‘for agricultural purposes' follow the word ‘lands.’ “The_ surface of the De Grasse lands is suitable for agricultural purposes, and has, in fact, been farmed by Mr. De Grasse, or his grantees, each year since his entry thereof, as a homestead in 1884, and the claim is that because the surface is suitable for agriculture, a lease of the land for a longer period than 12 years, although for mining purposes, was' void, in view of the Constitution as it then stood. This section of the Constitution has not been construed by the courts. It has, however, received a practical construction, and has not been regarded as prohibitive of leases of agricultural lands for any purpose exclusive of agriculture. Practically all lands in Michigan are agricultural lands. The prohibition of the Constitution did not take into account the size of the tract, or its grade _ as an agricultural proposition. While the Constitution of 1850 remained in force the lease of even a village lot for agricultural purposes for a longer period than 12 years was void, while, according to the construction universally accorded the section, a lease of the same lot, for the sole purpose of erecting a building for merchandising, was valid. So a lease of the De Grasse lands for 50 years for agricultural purposes would have been void, but the lease thereof for the sole purpose of mining iron ore, which excluded the right to use the lands for agricultural purposes, was valid. “It is suggested, and correctly, that this provision of the Constitution was borrowed from New York, and Odell v. Durant, 62 N. Y. 524; Clark v. Barnes, 76 N. Y. 301 [32 Am. Rep. 306], and Massachusetts National Bank v. Shinn, 163 N. Y. 360 [57 N. E. 611], are cited as sustaining the position that the lease was out of harmony with the Constitution. The conclusion reached by the complainants is not warranted by the New York decisions. The purpose of the constitutional provision in question was to announce the policy of the State of Michigan, in line with the policy of the State of New York, that long leases of agricultural lands, for agricultural purposes, were detrimental to the interests of agriculture, because the tenants had ‘no desire to improve by the best mode of cultivation, an inheritance which was liable to pass from them or their descendants without compensation/ and a study of the New York cases will disclose the position of the New York courts to be that a lease of lands suitable for agriculture for a longer period than 12 years, for any purpose other than agriculture, nnd exclusive of the right of agriculture, is valid. Whether, therefore, the lease in question is brought within the saving effect of the New York decisions, it is necessary only to inquire whether the Verona Company was restricted by the terms of the lease to the use of the land for mining purposes, and that it was so restricted has been settled by the decisions of our own court. The lease was made ‘for the purpose of conferring on the lessee the right to mine iron ore in and from the land/ with permission to erect buildings, put in engines and machinery, build, or authorize to be built, roads, including railroads and switches for the purpose of transporting supplies to any mine on the property, and transporting ore therefrom, and to do all such other things as might be necessary or convenient for the carrying on of iron ore mining on said premises. In Harlow v. Iron Co., 36 Mich. 105, ■the court considered and disposed of this very question. The lease in that case contained language sub stantially the same as in the De Grasse lease. The provision of the lease in the Harlow Case was ‘for all the purposes of mining the iron ore and other minerals and for all the business of said mine containing ore * * * including the incidental rights necessary for conducting mining.’ The syllabus reads: ‘“The lease in question in this cause is construed to he, not a lease of the lands, with the privilege of mining thereon, or together with the ore and minerals to be found upon the same, but a grant of a specific mining privilege, particularly set forth in the lease, in such manner as to exclude all other uses to which the lessee might otherwise have been entitled to put the premises; and to confer no right to the use or possession of the lands for any purpose whatever except as an incident to the mining right granted and in connection with the exercise of that right.’ “In the opinion (page 117 [of 36 Mich.]) the court said: “ ‘When the right is thus defined in the lease, it is no longer a lease of the land, to be used by the lessee for such purposes, within the limits allowed by law, as he might deem proper, but to be used for a particular specific purpose, so far as might be necessary to the successful accomplishment of that purpose, and for none other. A specific purpose, having been thus set forth in the lease, excludes all others which the lessee might otherwise have been entitled to.’ “In Wertheimer v. Circuit Judge, 83 Mich. 56, the court said: “ ‘The words contained in the lease, “to be used for the sale of teas, coffee, spices, and similar goods,” amounts to an express covenant not to be used for any other business.’ “In Philadelphia Ball Club v. Lajoie, 90 Am. St. Rep. 627, 643, note 5a, Wertheimer v. Circuit Judge, 83 Mich. 56 [47 N. W. 47], is cited with approval, and the courts say: “ ‘If a lessee is by the terms of his lease restricted to a certain and particular use of the demised premises, equity will generally restrain him from any other use of them, even though no irreparable injury is shown to result from the breach. * * * In other words, if a lessee covenants for a particular use of the demised premises, equity will restrict him to that use by injunction. Covenants affecting the mode of occupation, use, and enjoyment of the leased premises run with the land, and the assignee of the lease, though not named, may be restrained by injunction from violating the covenant.’ “Passing the fact that Mr. De Grasse parted with his title to the lands in 1908, and that the present holders of the title do not claim their purchase to have been influenced by any promise or representation of any officer or agent of the Verona Company, and should any notice be taken of the claim, often repeated in the arguments and briefs of counsel for the complainants, that Mr. De Grasse was induced to sign the option and lease because of the alleged promises of Mr. Jobe, and the supposition that the lease included such promises, it is well settled that it is the duty of every one to use reasonable prudence to avoid deception. When the subject-matter of a representation is a fact not peculiarly within the knowledge of the party making the representation, but is one, as to which the party to whom the representation is made, has equal and available means and opportunity for information, and no fraud or artifice is used to prevent inquiry or investigation, he must make use of his means of knowledge, and, failing to do so, he is not allowed to claim he was misled. Whether or not the De Grasse lease was framed to oblige the Verona Company to operate was a matter Mr. De Grasse was as competent to pass upon as Mr. Jobe; at least it was a question, which, upon inspection of the lease, any lawyer could answer better than Mr. Jobe; means to obtain the services of a lawyer were not wanting; opportunity to obtain the advice and instructions of a lawyer was open to Mr. De Grasse for over 20 days before he signed, during which time he had the option and form of lease in his own hands; no fraud or artifice was practiced by Mr. Jobe to prevent Mr. De Grasse from acquiring an exact understanding of the scope and effect of the instrument; on the contrary, Mr. Jobe distinctly cautioned Mr. De Grasse, as the latter admits, to take the option, to which was attached the form of lease, ‘home and read it over.’ If Mr. De Grasse neglected the duty which the law imposed upon him, his right, or the right of those claiming under him to assert he was misled, may well be doubted. That Mr. De Grasse did not suppose the lease contained provisions requiring operation is the conclusion arrived at, but that he was persuaded by Mr. Jobe that, independent of the covenants of the lease, the company would explore and mine with reasonable diligence, and to a reasonable extent, and that unless he was so persuaded he would not have signed the option, is a fair inference from all the testimony in the case. In these circumstances the conscience of a court of equity might be moved to put in the lease a covenant which should, perhaps, have been put there originally, but not to say the instrument contains a covenant which it does not contain. If any rights belong to the complainants because of any operating promises made by Mr. Jobe, such rights should be recognized by reformation, and not by construction which would affect other innumerable leases although obtained under different circumstances. The inclination of the court to discover, if it existed, ground for correction of the lease was, however, promptly stifled by the declaration of the complainants that, in this proceeding, they were not seeking reformation, but annihilation, of the lease. “No reason appearing why the relief prayed for by the complainants should be granted, a decree will be entered dismissing the bill of complaint with costs to the defendant Verona Mining Co. to be taxed.”
[ 16, 42, 13, -37, -16, 69, 55, -15, 30, 12, 56, -35, 32, 11, 3, 3, -22, -27, -63, 49, -13, 2, 36, 28, 5, -5, -10, 37, 24, 57, 2, -2, 3, 23, -12, 11, -38, 1, -19, -13, -11, 33, 15, 36, 2, 13, 7, -64, 9, -25, 32, 44, 9, 14, -23, -5, -51, -3, -16, 57, -14, -40, 9, 40, 60, 48, 8, 30, 19, 1, -19, 1, -10, 19, 37, -6, 16, 13, -62, 0, -15, -62, -1, 5, -57, 30, -19, -30, -22, 8, -25, -28, -29, 0, -18, 40, 1, 13, 8, 19, -10, -43, -2, 13, 12, -34, -23, 10, 32, -29, -10, -7, 23, -42, -16, 24, -40, 23, 57, -67, -6, -28, 8, -16, -12, -12, -28, -23, -32, -1, 9, -5, -8, 6, 52, 4, 20, -30, -29, -6, 19, 16, 20, -12, 3, 10, -37, -20, -10, 27, -13, -20, 20, 34, -2, 37, 5, 22, 32, -26, 38, -4, 35, -22, -65, -7, -4, -54, -9, 67, 41, 10, 3, -40, 58, 7, 52, 47, -39, -37, -41, 12, -39, -66, -32, 25, 13, 15, 33, -5, -19, -34, 32, -28, -42, -7, 25, 10, -15, -7, -27, -10, 19, 17, -25, -8, -30, 38, -18, 5, -8, 30, -65, -46, 8, 50, -8, 20, 44, -6, 65, 0, -44, 9, 11, -27, -9, 6, 42, -38, -22, 2, 23, 45, -23, 27, -19, -30, -6, -39, -33, -4, -31, -37, -72, -1, -2, 0, 28, 65, -45, 13, -59, 8, -21, -31, -45, 6, 32, -18, 14, -7, -28, 59, 11, -18, -45, 20, 0, 22, -12, 40, 0, -5, -14, -29, 37, -30, -3, -62, 18, -20, -14, 31, -18, 56, 10, 23, -53, 36, 44, 4, -2, 16, 61, -25, 0, -25, 35, -7, -27, -4, -8, 11, 79, 25, -54, 2, 12, -46, -31, 7, 18, 27, 16, -20, 24, 4, -16, -27, -25, 3, -9, -10, 47, -4, 53, -36, 34, 39, -31, -46, 36, 3, -73, 2, -7, 24, -49, -43, 16, 2, -21, 13, 1, 4, -2, -57, 33, -20, -9, 18, -11, 47, -36, -15, 25, 0, -13, 5, 71, 1, 28, 9, 8, -31, -32, -14, 32, 4, -28, 49, 2, -46, 34, -42, 36, -7, -43, 43, 32, -10, 51, 18, 61, -6, -7, 40, -48, -78, -23, -21, -11, 54, -36, 30, 43, -53, -24, -63, -1, 1, -37, -31, -10, -53, 12, -5, 22, -15, 2, -9, -13, -45, -16, -30, 27, 36, 42, 30, 19, 12, -26, -2, -2, -5, 9, -21, -43, 19, -27, 15, 34, -1, -4, -16, -11, -31, -64, 35, -21, 31, -12, 2, 13, -27, -32, -13, 16, -36, 31, 6, 2, 5, -42, 16, 1, -28, -16, 43, 22, 14, 25, 30, -42, -13, 7, 5, 43, -9, -42, 40, 26, 3, 14, -27, -34, 17, -32, 40, 31, -16, 9, 23, 21, -44, -18, 51, -9, 53, 23, -42, 20, -100, -12, -24, -33, 7, 79, 12, -27, -27, 63, 17, -17, 42, 4, -16, 0, 44, 23, -70, 38, 29, -9, -2, -1, -23, 7, 38, -44, -9, -27, 39, 52, 27, 18, -29, 80, -6, -44, -14, 7, -48, -24, -7, -37, -48, -76, -24, -4, 0, 12, 47, -42, 7, 17, -40, 7, -20, -53, -5, -26, 16, 6, 17, 5, 13, 30, -38, -43, 35, 19, -39, 73, -26, -15, 16, 11, 40, -28, 16, 13, 20, 21, -20, -27, -13, 3, -5, -11, -25, 11, -60, 12, 41, -19, -8, 14, -18, -38, -17, 18, 25, -40, -55, -1, 82, 24, 27, -31, 48, -52, -43, -63, 2, -26, 4, 13, 10, -21, -17, -3, -2, 39, 14, 62, 24, 71, -15, 3, 1, -69, 17, 21, 42, -13, 3, -48, 86, 11, -12, 2, 42, 0, 6, 25, 29, -6, -8, 7, -38, -4, -61, -8, -20, -3, 3, 8, 26, -13, 36, 32, -7, 7, 32, 12, -5, 23, -10, 39, 3, 16, 34, 3, -12, -53, 0, 54, 13, 28, 30, 9, -8, 26, -21, 63, 45, -10, 18, -26, 42, -1, -18, -5, 7, -6, 49, 15, -8, -5, 52, -36, -22, -25, -23, 50, 4, -7, -25, -10, 72, -25, 23, 9, 43, 27, -10, -18, -11, 23, -63, 11, 35, -8, -3, -19, -13, 9, -74, 25, -46, -3, -14, -28, 55, -61, -5, -53, 16, 12, 34, 4, 14, -2, 23, 0, 4, -73, -14, -13, 11, -17, 72, -14, 19, 42, 49, -58, 48, -44, 16, -11, 31, 14, -26, -18, 38, 11, -7, -26, -6, -57, 22, 2, -5, -57, -30, -11, 8, 3, 31, -17, 20, 11, -21, 9, 40, 44, 4, -17, 27, 15, -40, 2, -60, -22, -35, 51, 47, -8, -66, 29, -23, -8, 0, 9, -1, 28, 10, -4, -5, -43, -22, 30, 19, -20, -14, 1, -27, 0, -9, -23, 21, 18, 16, -32, 32, -2, -21, -39, 11, 0, 27, -14, 43, 20, -5, -20, 34, 43, -20, -26, 4, 34, -16, 8, -26, -18, 28, -61, -79, 11, -12, 20, -14, -70, 37, 4, 44, -45, -15, -23, 17, -27, 23, -20, -34, -7, 26, 49, 13, -47, 52, 44, -3, 0, 31, 10, -1, -43, 11, 13, -8, -39, -5, -16, -35, 16, -38, -49, 17, 9, 19, -2, -9, 16, 35, 8, 33, 11, -67, -89, 0, 44, -34, 25, -67, -13, 5, 0, 36, 26, -12, 6, 66, 12, 14, 18, -21, -26, 15, -41, 5, -22, 41, 12, -7, 9, 15, 79, 21, -22, 15, -40, -18, -3, -1, -6, 45, -39, 3, 29, -62, -6, -9, -2, -25, 37, -20, -30, 7, -23, 0, -44, -19, 24, -26, 84, 18, -7, 40, -3, -9, -24, -20, -48, 33, -30, -24, -68, 21, 45, -10, -27, -17, -5, -17, 1, -15, 26, -11, 41, -9, -11, -49, 48, 44, 55, -23, -1, -55, -13, -2, -18, -25, -76, -20, -7, -16, 24, -28, 9, 21, 39, 39, -11, -15, 9, 8, 19, -42, -11, 34, -33, 12, 1, -38, -15, -1, -64, 16, 3, 32, 25, 39, -2, -14, -43, -10, 31, 0, -51, 32 ]
Ostrander, J. At the election held in the city of Battle Creek April 7, 1913, there were elected a mayor and five aldermen, who, with five aldermen holding over, constituted the common council. At the same election, a new city charter was submitted to and adopted by the electors. It is apparent, from certain provisions of the new charter, that it was contemplated it might or might not' be adopted. If not adopted, municipal affairs were to run on under the old charter; if adopted, such provision was made that there should be no municipal or official interim. If adopted, a commission was to be elected, at a primary and municipal charter election to be called immediately after the common council had declared that the same was adopted. One of its provisions was that: “This charter, when approved by the governor and the electors of the city of Battle Creek as provided by Act No. 279 of the Session Laws of 1909, shall be deemed a public act. * * * ” It also provided that after the adoption of the charter, and until the commission had been elected, qualified, and organized as a commission, the common council, board of public works, police commission, and the officers and employees under them should continue to exercise and perform the duties and have the powers given under the charter which was superseded. Under the old charter the mayor made certain appointments to office, among them to the office of city attorney; his power and duty in this respect being to appoint on the third Monday in April, the person appointed to hold office for one year and until his successor was appointed and had qualified. This power had been exercised in 1911 and in 1912, and when the new charter was adopted Duane C. Salisbury was the incumbent of the office of city attorney, to which he was appointed in 1911, and again in 1912. According to the new charter, all appointive officers theretofore appointed by the mayor and common council, whose appointment was made “for a definite or indefinite term,” and whose term had not expired “when this charter shall go into effect,” were to continue in office “under this charter” until successors were appointed by the commission, and at the salary paid them “when this charter went into effect,” “at which time their term of office shall expire.” The common council declared on April 10, 1913, that the new charter had been adopted, on that day a copy of the charter was filed with the county clerk, and on April 11, 1913, a copy was filed with the secretary of State. The common council did not direct the filing of these copies, and it seems that the city attorney, Salisbury, was responsible for this action. Later on, by order of the council, other copies were also so filed. The newly elected mayor on the third Monday in April (April 21st) appointed Howard W. Cavanagh. city attorney, and he thereafter claimed to hold the office; no new or other appointment having been made by the commission thereafter elected. Mr. Salisbury advised the common council, and the commission, in effect, that he was city attorney, and demanded recognition as such and the emoluments of the office. Mr. Cavanagh appears to have been recognized as city attorney and to have drawn the salary of the office. No proceeding was instituted by either claimant to determine who held the officé by right. Mr. Salisbury died November 26, 1913, and the executor of his estate brought this action for the salary of the office, and recovered. A special question was submitted to the jury, which was: “Did Mr. Salisbury ever abandon the office of city attorney?” And the jury was instructed that, if he did not, if the question was negatively answered, he was entitled to the salary. A large number of errors are assigned, but the meritorious questions raised by them are two only, and they are: First, whether the suit can be maintained at all; second, whether, after the adoption of the new charter, it was under and by virtue of its provisions that municipal affairs were conducted. 1. It is the general rule that the title of an incumbent of a public office cannot be collaterally questioned, nor be tried in an action by the incumbent or by any one else for the salary of the office. 28 Cyc. p. 410; Carlisle v. City of Saginaw, 84 Mich. 134 (47 N. W. 444); Attorney General v. Parsell, 99 Mich. 381 (58 N. W. 335); Matter of Corrigan, 37 Mich. 66; Druse v. Wheeler, 22 Mich. 439; Grondin v. Logan, 88 Mich. 247 (50 N. W. 130); Tower v. Welker, 93 Mich. 332 (53 N. W. 527); Moiles v. Watson, 60 Mich. 415 (27 N. W. 553); Hallgren v. Campbell, 82 Mich. 255 (46 N. W. 381, 9 L. R. A. 408, 21 Am. St. Rep. 557); 24 Cyc. p. 416. See, also, Blain v. Circuit Judge, 145 Mich. 59 (108 N. W. 440). And it has been held that the payment of the official salary to a de facto officer having the legal indicia of title is a defense to a claim against a public corporation or its disbursing officer made by the de jure officer. Auditors of Wayne Co. v. Benoit, 20 Mich. 176 (4 Am. Rep. 382); Scott v. Crump, 106 Mich. 288 (64 N. W. 1, 58 Am. St. Rep. 478). As I shall point out, Mr. Cavanagh did not perform the duties of the office with apparent right, nor have the legal indicia of title to the office. 2. Nothing can be plainer than that, after the adoption of the new charter by the electors, it then, by its terms, ex proprio vigore, continued in office all officers of the city, elective and appointive. Their duties, powers, and salaries were described and defined in the old charter; but it was by virtue of the new charter alone that any person held office and performed official duties. It extended the terms of some appointive officers, and shortened the terms of some elective officers. It preserved, and was intended to preserve, the official status quo as of the time when by official determination (if not earlier) the new charter was adopted. Under the old charter the mayor had power to appoint a city attorney. Of this power the new charter in unmistakable terms divested him. It is said in argument, in effect, .that the new charter could speak only from the time it took effect —became effective — which is true, and that it became effective after April 21st, the day when Cavanagh was appointed, which is plainly not true. The old charter was superseded by the adoption of the new one, and, if not from the day of its adoption by the electors, at least from the day when the adoption was officially declared, it was the governing law of the city. In this view, it is not important to discuss the effect of failure of Salisbury to file an oath of office after his last appointment to office, the effect of the first or second filing of copies of the charter, nor the effect of payment of the salary of the office to Mr. Cavanagh. He shows no apparent right to the office; the entire situation being governed by the plain language of the city charter, in violation of which he assumed to net. The judgment is affirmed. Brooke, C. J., and McAlvay, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.
[ 24, -7, 40, -26, -35, 31, -6, 18, 27, 20, 39, -47, 31, 0, -11, 44, -26, -40, -3, 47, -18, -55, -33, -29, -14, 15, 38, -92, -96, -18, 3, -16, -25, 11, -22, -16, -32, -26, 33, -26, 37, 24, 15, -47, -42, 16, 56, -46, 2, -61, -29, 54, -47, 46, -38, 0, 26, -21, 15, 30, -31, 28, -50, 0, 5, 4, 14, 53, 127, -54, 8, 7, 15, -44, 36, 43, 60, -20, -17, 17, -44, 27, -28, -30, -9, -20, -22, -26, 21, 2, 21, 4, 30, -8, 32, -43, -26, -34, 20, -2, -23, -8, 14, 13, -40, -11, 22, 4, 44, -77, -29, 1, 53, -41, 17, 36, 0, 31, 40, 37, 15, 33, -28, -42, -44, 6, -80, 14, -12, -12, -54, 30, 19, -16, 39, 46, 4, 13, -17, -5, 12, 33, -9, -50, 3, -13, -34, -19, 1, -19, -27, 13, 42, 52, -58, 45, -15, -15, 31, 4, -20, 31, 48, -69, -19, 0, -7, -32, -12, 46, -7, 16, -21, -9, 32, -26, -42, 27, -11, 18, -17, 8, 2, -30, 28, -26, -43, -42, 2, -34, 25, -9, -30, -76, 18, -40, 23, 31, -14, -15, -10, 15, -44, -12, -24, 15, 2, 11, 30, 0, -17, -40, -6, 9, 23, 30, -27, -59, 51, -22, 24, 4, 27, 47, -70, -9, 28, -5, -43, 8, 63, 23, 38, 9, 48, 27, -66, 63, 6, 23, -34, -29, 14, 84, -16, 0, 2, -55, 43, 91, 39, 0, -21, -3, 14, 49, -27, 15, 17, -15, 15, -30, 14, -12, -32, -3, -28, 37, 31, -32, 9, 51, 7, -18, -83, 34, 26, -69, -22, 17, -12, -46, -19, 40, 16, -9, 3, -7, -40, -53, -40, 43, 19, 24, 54, 37, 23, 26, 1, -66, -16, 97, -36, 41, 44, -5, -41, -16, 46, 3, 34, 8, -51, -8, 27, -32, 58, 39, 44, 33, -24, 5, -29, 36, -98, 4, 38, 36, -11, -19, -8, -30, -10, -18, 52, -20, 56, 38, 8, -18, 0, -13, 98, -19, 21, 13, -22, -35, -5, 9, 9, 26, -48, 9, -40, -22, 11, -6, -33, -79, 24, 40, -54, 22, -3, -24, -45, 14, 33, 21, -3, 4, -12, 20, 50, 2, 72, 61, -10, 77, -12, 47, 23, -27, 42, -41, 52, 4, -47, -74, -10, 23, -57, -1, 15, 32, -30, -5, -36, -16, -23, 65, -23, 36, -9, -4, -26, -2, 74, 37, 0, -19, 59, -62, 20, -9, 4, 15, 66, 21, -23, 21, -83, -35, 31, 14, 32, 14, 20, 28, 10, 10, 22, -35, 24, -55, -59, -28, -51, -51, 16, -10, 20, 32, 2, -67, -20, -4, -29, 17, 69, 83, -21, 0, -41, -22, 16, 19, 21, 10, -48, -51, -31, -40, -56, 7, -77, 4, 30, 48, -27, 3, -60, -35, -86, -32, -37, 3, 7, -22, -16, -20, -23, 46, 2, -26, 14, -11, 30, -22, 47, 25, -9, 35, 4, 51, -13, 0, 23, -22, 15, 25, -75, -9, -27, -1, 16, 0, 8, -10, -23, -26, 7, 49, -14, -2, 13, -38, -33, -16, -22, 13, -54, -13, 31, 75, 44, -14, 39, -9, -43, -4, -12, 86, 20, 34, -50, 47, -18, -21, 25, -45, 51, -3, -13, 0, -20, 0, 19, -52, -76, 18, -49, -82, -32, 11, -32, 30, 13, 53, 3, -38, 45, -37, -38, 20, -21, 38, -11, -3, 19, -33, 2, 44, 14, 28, 36, 2, 40, 3, 20, 12, -29, 37, 28, -48, -10, -26, -24, 6, -34, 39, -92, 78, -39, 35, 67, 56, 20, -42, 15, 2, -3, 21, 2, 16, 12, 10, 59, -4, -32, -24, 69, 14, -53, 33, -12, 9, 72, -28, -9, -22, 102, -14, 10, -55, 69, -25, 18, 51, -9, -25, -34, 2, -11, -30, 2, 20, 45, -19, -16, -19, -22, -31, 10, 36, -63, 11, 8, 55, -29, -15, -39, -30, 20, -1, 3, 39, 18, 0, 5, 34, 0, -10, 5, 4, 40, 5, 32, -46, 45, -2, 25, -65, 3, -14, 43, -10, 0, 10, 40, 21, -32, -4, 58, -17, -4, 24, -16, -8, 15, 3, 7, 22, 56, -17, -6, 15, 35, -2, -16, -40, -21, 43, -50, -21, 11, -31, 1, -73, -30, -58, -11, -8, -10, -5, 25, 49, 48, 50, -10, -10, -31, -39, 25, 49, -55, -68, -2, -51, 2, 8, 27, -68, 3, 13, 0, 45, 9, -3, -30, -48, -16, -18, -37, 67, 0, -21, -51, -15, -35, -19, 50, 18, 19, 4, -33, 83, -26, 0, -35, 35, 41, 45, -29, 8, 20, 23, -8, -49, 45, 0, -31, -45, 15, -76, -13, -30, 9, -2, 17, -30, -8, -40, -40, 9, 77, 7, -40, -15, -17, -26, 52, 18, 7, 2, -6, -35, 16, -25, -12, 6, -28, -36, -41, 4, -10, 84, -30, 24, -38, 65, 17, -45, 49, -46, 15, 6, -57, -22, -39, -52, 43, 30, -39, 2, -5, -8, -52, -1, 18, 99, -11, -4, 5, -42, -46, 8, 21, 37, 6, -48, -1, -12, -89, -4, -19, 31, -4, 0, -14, 18, -19, -9, 22, 10, 19, -21, -23, -13, 6, 45, 21, -54, -7, 3, 28, -27, -37, 75, -10, -68, 19, -51, -36, 36, -14, 16, -30, -39, -23, 36, -15, -47, -22, 54, 17, 6, 62, 38, 42, -27, 13, -3, 34, -2, 19, 13, -51, 43, -13, 17, 42, -23, -88, -19, 23, -12, 29, 4, 14, -17, -31, -34, 3, -53, -57, -39, -11, 10, 18, -45, -47, -28, -79, 11, -13, 18, 11, 55, -26, -24, -23, -34, 43, 17, 77, 42, 29, 2, -38, -22, 5, -32, 5, 40, 15, -4, 0, 6, -18, 9, 42, 51, 39, 10, 10, 18, 29, -40, 35, -30, 72, -3, -1, -31, -42, -33, 27, 17, 18, 45, -10, 26, 9, -23, -42, -11, 41, -25, 6, 49, 63, 84, -34, 24, 37, -22, 5, 33, -40, -5, 20, -39, -32, -82, -42, -26, -38, 2, 74, 16, -75, 50, -35, -25, 0, -33, -16, 41, -1, 13, 10, 24, -51, 83, 56, 47, -23, -40, 10, -4, -50, -14 ]
Stone, J. The plaintiff brought this suit to recover damages for personal injuries to himself and also to his wife and child, at a railroad crossing in the unincorporated village of Bridgman, on September 19, 1913. The court below directed a verdict and judgment in favor of defendants. Plaintiff asks us to reverse that judgment, contending that his testimony made a case entitling him to the judgment of the jury. We state the testimony, placing upon it, as we should, the construction most favorable to the plaintiff. The plaintiff, his wife, and a child seven years of age, were injured by a collision between one of defendants’ work trains and an automobile in which plaintiff, wife, and child were riding across the track of the Pere Marquette Railroad Company, in said village, about 10 o’clock in the forenoon. The village had but one main street or highway, which extended east and west, and which furnished the only entrance to the village, and was quite extensively traveled, as the village was the shipping point of fruit raised in the neighborhood. On account of the village’s proximity to Lake Michigan, the general travel was from the east into the village. The defendants’ railroad crosses this main highway at the easterly side of the village, and was composed of one main track, a side track on the west of the main track, and a blind or stub track on the east of the main track and south of the highway, ending near the south sidewalk. The depot was about 40 feet south of the highway, and on the west side of the main railroad track and east of the side track. This stub or blind track was used by a fruit growers’ association to load fruits, and on the day in question there were standing upon it several refrigerator cars. Within 150 feet east of the main track the buildings on the south side of the highway were: First, a building called the association building, which was next east of a driveway along the east side of the stub track; a second building, known as the barber shop or poolroom, was from 100 to 150 feet east of the main track. Between the poolroom and the association building was an opening 50 or 60 feet wide, giving a clear, unobstructed view of the track to the south about 1,000 to 1,200 feet. From the association building to the main track the view was completely obstructed by the building and the line of refrigerator cars standing upon the stub track until the refrigerator cars were passed. The plaintiff (who resided at Benton Harbor, about 16 miles away, and who had driven in in a covered delivery automobile with his wife and child) was injured at the crossing as he was approaching the village from the east on this highway. The drive of the automobile was a right-hand drive, and it was being driven by the plaintiff. The child had been seated upon its mother’s lap, until they neared the railroad crossing, when the mother stood the daughter in front of her, in order, as she testified, that she “could look both ways.” When but a short distance from the main track, the regular, scheduled passenger train, was seen by the plaintiff to go north; however, both plaintiff and his wife kept a constant lookout and listened for any approaching train until they reached the crossing. At the opening between the said buildings, which was 50 to 60 feet wide, plaintiff and his wife looked toward the south, where they could see a distance of about 1,000 to 1,200 feet, and there was no train in sight, nor any sign of an approaching train. The railroad track curved to the west about a quarter of a mile south of the highway, and there were trees and bushes at this point that obscured a further view of the track. Plaintiff continued to keep a lookout both ways for trains, until after passing the end of the* box cars that were standing on the stub side track, when he saw, for. the first time, a train backing down upon him from the south. When he passed these box cars where he could see the train, he was within 18 or 20 feet of the main track where he was sitting in the seat, the car extending 4 feet or more in front of seat. Upon seeing the train, plaintiff immediately cut off the gasoline, opened the clutch of his automobile, and applied his emergency brake. When opposite the said buildings plaintiff reduced the speed of his automobile to four or five miles an hour, and continued at this rate of speed until he passed the end of the box cars, and was driving at not to exceed four miles an hour when he first discovered the approaching train. The automobile was making but a slight noise. When plaintiff first saw the train, he testified that it was too late to speed up and get across, and too late to turn, and too late to stop in time to avoid collision, and that he did all he could to escape the injury. The train in question was made up of 21 or 22 cars, with a flat car in front, followed by a caboose car and 26 others, at the end of which, and pushing the train, were the tender and engine. This train was at Sawyer, a station about six miles south of Bridgman, when the regular passenger train going north passed through. When the passenger train pulled out of Sawyer, this work train pulled out and followed, pushing the 22 cars ahead of the engine. In taking the case from the jury, the trial court said: “This train was running wild; that is, it was not a scheduled train.” We are unable to find any testimony on the subject in the record. At the time of the collision it was running at a rate of speed of from 25 to 30 miles an hour through the village and across the highway. There was no person stationed at the crossing, and no person stationed on the front car of the backing train. The whistle was not blown, and the bell was not rung on the train in question as it approached the crossing. In describing the condition of the automobile the plaintiff testified: “It was an inclosed Studebaker car. The sides of the car were covered. I can’t tell you exactly how deep the seat of the automobile was, but it was a little bit more than 16 inches. The top of the car extended over the windshield. In order to see out of the car you would not necessarily have to lean forward and get your face a little past the side of the car, because there were windows that we could see through. The top bent down toward the engine. There were windows on each side that we could see through. A person driving could look out of the windows either way and see.” On the cross-examination of the plaintiff the following testimony was given: “Q. Did you stop your own car? “A. Not entirely; nearly so. “Q. You did not stop? “A. Not to a dead stop. “Q. So you could ascertain if there was a train coming? “A. If the train— “Q. Answer the question. Did you stop your car when you saw a car standing on the switch track, so you could ascertain a train was coming? “A. I did not stop the car after — we had listened for a whistle or some signal to notify us that there was a train coming; while we had been watching and listening, we received no warning or signals of any sort of danger approaching; while we had slowed down, and going slow enough so as to see and hear, there was no signal or sound given us. “Q. You did not stop, did you? “A. We did not stop — full stop. “Q. You did not stop so you could make sure? “A. We stopped so we could be reasonably sure.” The automobile was struck midway, while upon the track, by the backing train, and carried before the train a distance of 530 feet before the train stopped. The automobile was ruined, and the plaintiff and his wife received serious, and it was claimed permanent, injuries from the collision. The testimony being closed on the part of the plaintiff, a motion was made by the defendants for a directed verdict in their behalf, upon the ground that the plaintiff was guilty of contributory negligence, as shown by the testimony in his behalf. The trial court granted the motion, and held that the plaintiff was guilty of contributory negligence, as matter of law, for failure to come to a full stop before reaching the track, and directed a verdict of no cause of action. An examination of the charge discloses that in the opinion of the trial court the case was ruled and governed by Shufelt v. Railroad Co., 96 Mich. 327 (55 N. W. 1013). The main question raised and argued by counsel is, Was the trial court justified, as matter of law, in holding that, under the circumstances of this case, it was imperative upon the plaintiff to come to a full stop, before attempting to cross the railroad in question? The plaintiff’s claims are: First. That under the circumstances of this case the plaintiff was entitled to have his case submitted to the jury, on the question of contributory negligence, under proper instructions. Second. That if plaintiff was guilty of contributory negligence in crossing defendants’ track without first coming to a full stop, yet the plaintiff is entitled to recover, as the facts shown at the trial established gross and great negligence on the part of the defendants in the backing of their train, with the engine in the rear, and consisting of 22 cars, at such a high rate of speed, over the highway in question, and without giving any signal or warning whatever of its approach. We will discuss these claims in the inverse order in which they are presented. Under the more recent holdings of this court upon the question as to what constitutes gross and wanton negligence, we are unable to agree with appellant that the defendants were guilty of such gross negligence in the operation of the train which collided with plaintiff’s automobile as would authorize recovery, notwithstanding the contributory negligence of the plaintiff. Knickerbocker v. Railway Co., 167 Mich. 596 (133 N. W. 504); Putt v. Railway Co., 171 Mich. 216 (137 N. W. 132). That such manner of operating a train would be negligence, and was the proximate cause of the injury, were questions which might, in our opinion, have been 'properly submitted to the jury. It is not seriously claimed by defendants that the train was not operated in a negligent manner, but it is said that the failure to blow the whistle or ring the bell, even in connection with the backing of the train and the failure to have a man stationed upon the first car as a lookout, did not constitute the proximate cause of the plaintiff’s injury, but that the proximate cause was plaintiff’s failure to come to a full stop before attempting to cross the track. Can this be said as matter of law? Plaintiff had a right to expect that defendants’ trains would be operated in a lawful manner. We think that the controlling question is whether the conduct of the plaintiff was that of a reasonable man, under the circumstances. Did the plaintiff conduct himself as a reasonably prudent man would have acted, while rightfully expecting the defendants to handle their train in a lawful manner? These, it seems to us, were questions for the jury. If the jury should say that the defendants negligently operated the train, and that this was the proximate cause of the injury, and that the plaintiff did, under the circumstances, all that a reasonably prudent man would be called upon to do, and that the injury would not have occurred had the defendants been lawfully operating the train, then the plaintiff would be entitled to recover. In our opinion, the Shufelt Case is not controlling here. In that case the plaintiff’s wife was driving in a lumber wagon with a box, and the road was dry and hard, so the noise of the horses and wagon traveling over a hard road was great. She did not listen for any train or signals. It was a regularly scheduled passenger train, somewhat behind time, crossing a highway in the country, where travel was limited, and the signals were given both by bell and whistle. In the instant case the plaintiff was driving slowly, in an automobile, the engine of which was making a very slight noise. Plaintiff was constantly looking and listening for a train. He had just seen the regular passenger train go north, and the collision resulting in his injury was caused by what the trial court called a “wild train,” consisting of 22 cars, with the engine placed in the rear. No signal by either bell or whistle was given, and in fact no proper signal could be given from the engine while in the rear of such a long train. A high rate of speed was used by the backing train over a highway where there was much traffic, and no lookout was placed on the approaching train. Whether this combination of facts might not rightfully lead the plaintiff to believe that he was safe in attempting to make the crossing, was, in our opinion, a question for the jury. Where different conclusions may be drawn from established facts, the question belongs to the jury. Beck v. Railroad Co., 156 Mich. 252-258 (120 N. W. 983). If, after passing the box cars, and when finding himself in peril by defendants’ negligence, plaintiff did not act with coolness, the jury should say whether he was guilty of contributory negligence. Fehnrich v. Railroad Co., 87 Mich. 606 (49 N. W. 890); Mercer v. Railroad Co., 151 Mich. 566 (115 N. W. 733). The Shufelt Case was affirmed by a majority of one, and it may be said that the signal given was a controlling feature which caused the affirmance. “Ordinarily, when a traveler drives upon a railway track without stopping to listen, where his view is obstructed, and in consequence thereof he is injured, he is, under the law, guilty of contributory negligence, but the rule * * * is not imperative under all circumstances.” The above is the latest expression of this court upon the subject. Morgan v. Railroad Co., 162 Mich. 573-576 (127 N. W. 683). In that case Chief Justice Bird also said: “Viewing plaintiff’s conduct in connection with the surroundings and the conduct of the defendant in operating its train without a headlight or lookout, we are unable to say, as a matter of law, that plaintiff so far contributed to his own injuries that it will preclude recovery. The plaintiff testified, and his testimony is corroborated by two witnesses, that his horse was walking very slowly when he approached the main crossing as well as the other crossings. He looked and listened at each of the crossings. He understood that a train ran in the early morning, conveying the miners to their work, but he had never seen it at this crossing and was not expecting it.” If the rule above stated could be applied when a train was on its regular morning trip, may it not be applied in the instant case, where no train was scheduled or expected? We think so. This court has recognized various exceptions to this general rule of requiring the traveler to stop before making the cross ing, when the view is obstructed. Guggenheim v. Railway Co., 66 Mich. 150 (33 N. W. 161); Richmond v. Railway Co., 87 Mich. 374 (49 N. W. 621); Breckenfelder v. Railway Co., 79 Mich. 560 (44 N. W. 957); Barnum v. Railway Co., 137 Mich. 580 (100 N. W. 1022); Id., 148 Mich. 370 (111 N. W. 1036); Coffee v. Railroad Co., 139 Mich. 378 (102 N. W. 953); Hintz v. Railroad Co., 140 Mich. 565 (104 N. W. 23); Beck v. Railroad Co., supra. Our attention has been called to cases in other jurisdictions, but we think that the subject is covered by our own decisions. We are of the opinion that the trial court erred in not submitting to the jury the question of the claimed contributory negligence of the plaintiff, under proper instructions. The judgment of the circuit court is reversed, and a new trial granted. McAlvay, Kuhn, Bird, and Moore, JJ., concurred with Stone, J. Ostrander, J. I think the court below was right, and that the judgment should be affirmed; Brooke, C. J., and Steere, J., concurred with Ostrander, J.
[ -31, 51, 21, 14, -27, -12, 24, 5, 28, -12, -37, 9, 30, 12, 0, -2, -33, -44, 19, 3, 8, -30, 31, -6, -27, -23, -5, -4, -17, -30, 23, 25, -18, -4, -6, 23, 55, -13, 34, 28, 23, -31, 13, -10, 9, 19, 50, -31, 13, -2, 7, 16, -8, 6, 4, -16, -3, 51, -10, -14, -4, -32, 15, -21, 17, 26, 43, 11, -15, -12, -43, -22, -2, -38, 5, 38, -1, 47, -49, -5, -16, -9, 56, -27, -55, 11, -5, -11, -27, 8, -16, 5, -25, 25, 34, 12, -74, 0, 13, -12, -9, 43, 16, -6, -1, 0, -31, -39, -15, -6, 23, 21, 7, 4, -13, -7, 25, -22, 25, -14, 6, -43, 0, 4, -6, 24, -28, 44, -34, 19, 51, -11, 23, 59, -18, -25, -35, -44, 54, 23, 5, 34, -9, -19, -1, -21, -29, 23, -24, -12, -18, -34, 4, -37, 24, 52, 26, -35, 45, -20, 33, 16, 37, 5, -59, -24, -4, -26, -21, 6, -5, -18, 54, -55, 15, 9, 24, 27, -64, 9, -2, 46, 51, -23, -67, -66, -9, 7, -17, 16, 37, -14, -12, -38, 0, 62, -25, -7, -12, 2, 5, -37, -4, -46, -12, 0, 24, 23, -1, 22, 17, -12, -7, -48, 2, -2, 1, -29, 37, -26, 17, 0, 18, 40, -57, -13, -43, -22, -5, -2, 8, -21, 16, 37, -6, 2, 27, -30, 42, 0, 55, 0, -13, -32, 21, 40, -61, -22, -50, 48, 24, -5, -54, -8, 10, 0, 31, 20, -13, -22, 27, 41, -19, 25, 39, -11, -36, 15, -5, -12, -25, 8, 70, -15, -30, -44, 26, 9, 22, 23, 19, -20, -13, -14, -23, -3, 21, 3, 10, 15, 54, -12, 1, -1, -7, 4, -3, 0, -24, 5, -21, 14, -18, -25, 7, 30, -39, 18, 35, 15, -9, -22, 21, -25, 42, 30, 4, 30, 15, -59, 0, 31, -37, 25, 30, 59, -10, 5, -47, -13, 11, 67, 7, 56, 20, -33, -2, -10, 18, -3, 60, 26, 31, -9, -14, 12, 34, 11, 38, -8, -27, -49, 70, -40, -35, -1, -6, -31, 8, 46, 45, -18, 6, 3, -32, -41, -17, -44, -63, 39, -30, 1, -12, -14, 27, -50, 15, 50, 29, 91, 16, 14, 23, -37, 9, -12, -40, -16, -75, 31, -44, -52, 31, 31, 25, 9, -20, 20, -26, -53, -16, 11, 27, 10, 7, 6, -4, 11, -4, 22, 33, -53, 55, -20, 39, 0, 55, 27, -20, 18, 26, 39, 15, -12, 68, 10, 13, -27, -23, -16, -12, 20, 32, -4, 15, 7, -45, -4, -14, -39, -52, 29, 0, 9, -4, -8, -61, 59, 24, -14, -10, 35, -11, 29, -34, -25, -14, -23, 35, -7, -5, -11, -15, 16, 9, -45, -13, -37, 54, 36, 26, 52, -61, -4, 17, -13, -19, 14, 9, -9, -50, -33, -5, -6, -15, -33, 0, 56, 11, 15, 41, 42, -1, 11, -1, -11, -35, -5, 16, -4, -64, -10, -23, -40, 12, 20, 25, -9, -1, 41, -27, -5, 19, -22, -3, -10, -33, 6, -5, 5, -22, 48, -5, -18, -14, -10, 40, -18, -6, -11, 5, -46, 48, 35, 8, -9, 10, -4, 48, 8, 8, -18, 16, -30, -1, -15, -16, -13, 24, 10, 40, -4, -6, -48, -1, -12, -41, -9, -4, -30, -9, -43, 15, -14, 2, -1, 13, -6, 42, -51, -36, 17, 11, -20, -50, 53, -11, 23, -69, 0, 11, -9, -76, -13, -29, 10, 2, 25, -26, 33, -72, 22, -21, 0, 37, 10, 8, 27, 34, -12, 45, -44, -38, -27, 16, -15, -49, 61, 72, 15, 28, 3, -14, 17, 20, 17, -6, 10, -10, -12, -16, -10, -18, -35, -16, 12, 7, 61, -22, -20, -29, 58, -47, 13, 14, 7, 8, 37, -15, -35, 22, -21, -18, 10, -39, -45, -41, 41, -53, 29, -32, 12, 36, -15, 2, 19, 52, 21, -58, 5, 8, 1, -8, -30, -50, -7, -28, -36, 14, -26, 35, -58, 32, 25, -5, -62, -22, 34, 2, -19, 41, 30, 10, -18, 27, -21, -17, 24, 27, -12, -57, 12, -16, 0, -5, 26, -3, -10, 12, -7, -28, 0, 42, 23, -37, 26, 25, -37, -12, 10, 21, 4, 7, -25, -5, 61, 18, -26, -21, 27, 15, -22, -16, -41, -5, 19, 12, -53, -7, 0, 11, 2, 7, -17, -36, 10, 24, -28, -42, -39, 16, -67, -9, 42, -31, 26, 22, 9, -29, -12, -21, 18, 2, 1, 11, -40, -5, 42, -51, -41, 34, 3, -37, -4, -61, -2, 6, -28, 5, -2, -47, -1, -14, -28, -52, -2, 22, 15, -14, -2, -18, 22, 9, 26, 11, -6, 13, -25, 56, 27, -23, -37, -15, 6, 1, -2, 23, -9, 45, 10, -36, 20, -20, -18, -10, -16, -35, 7, 22, 35, -19, 2, -30, -18, -21, 3, 6, 1, 9, 28, 10, -1, 27, -36, 20, 18, 35, -32, 22, -31, 59, 7, 4, 1, -26, 44, 29, 2, -36, 34, 27, 36, -52, -48, 42, -12, 9, 0, 28, -18, -2, -65, 2, -13, 11, 6, -7, -13, 5, 20, -5, -50, -90, -16, -21, -18, -30, -28, -59, 6, 7, 8, -14, 28, -11, -12, 5, -47, 28, -29, 1, 0, 54, 32, -20, 0, 13, 9, 0, 26, 19, 19, 12, -11, -40, -42, -83, 12, -8, -5, 11, 48, 14, 17, -31, -35, 26, 25, 4, 2, 2, -32, -16, -36, -15, -3, -52, 5, -29, 45, 7, 1, 13, -32, -56, 39, -2, 32, -2, 59, -27, -41, 22, -54, 59, 38, 22, -62, -3, 21, 25, 9, -17, 16, -16, -65, -19, 51, -33, 21, 56, -16, -35, 51, 28, -14, -64, 14, 17, -10, 63, 13, 11, 14, 0, -50, 36, -10, 29, -29, -20, 6, -2, -36, 33, -24, 43, 50, 17, -22, 23, -17, 16, 47, -3, -23, -1, -32, -33, 31, -45, 6, -43, 13, 22, 11, -43, -9, -11, -53, 5, -44, 10, 8, 18, -8, 27, 48, 4, 29, -38, 14, 41, 10, 71, 81, -6, 12, -1, -7, 4, 45, 32, 64 ]
Stone, J. This is an action of debt against James T. Bennett, late county treasurer of Chippewa county, and his sureties upon his official bond, bearing date December 31, 1904. The first count of the declaration describes and sets forth .the condition and breach of' condition, of the bond and the claim of the plaintiff in the following language: “For that whereas the said defendants on, to wit, the 31st day of December, A. D. 1904, at Sault Ste. Marie, Chippewa county, Mich., by their certain writing obligatory, sealed with their seals, and to this, court now here shown, the date whereof is the day and year aforesaid, acknowledged themselves to be held and firmly bound unto the said plaintiff in the sum of seventy-five thousand ($75,000) dollars, for the payment of which well and truly to be made, the said defendants bound themselves by said writing obligatory. And the said plaintiff avers that the said writing obligatory was and is subject to a certain condition therein written whereby it is provided that if James T. Bennett, one of the defendants herein, who had been on the 8th day of November, A. D. 1904, elected to the office of treasurer of the county of Chippewa and State of Michigan, should as said treasurer and his deputy and all other persons employed in the said office of county treasurer faithfully and properly execute their respective trusts and if such treasurer should pay according to law all moneys which should come to his hands as county treasurer, and render a just and true account thereof whenever so required to do by the board of supervisors or by any provision of law, and deliver over to his successor in office or to any other person authorized by law to receive the same, all moneys, books, papers, and other things appertaining to or belonging to said office, then the obligation in said bond should be void, otherwise to remain in full force, said bond or writing obligatory together with the sureties named therein having been on the 15th day of January, A. D. 1905, approved by the board of supervisors of Chippewa county, Mich. And as an assignment of the breach of said writing obligatory, plaintiff avers that the said James T. Bennett, one of the defendants named herein, having duly qualified as treasurer of the county of Chippewa, Mich., and having entered into possession of said office on, to wit, the 1st day of January, A. D. 1905, did thereafter disregard and neglect the duties of said office in that he accepted and receipted for as money checks from the treasurer of the city of Sault Ste. Marie, Chippewa County, Mich., as a part of the moneys due the said county of Chippewa, from the said city of Sault Ste. Marie in a settlement made between the said city and county on, to wit, the 17th day of April, A. D. 1905, said checks aggregating the sum of four thousand sixty-six and 70/100 ($4,066.70) dollars, being signed by one Victor E. Metzger and bearing the indorsement of John F. Deadman as treasurer of the city of Sault Ste. Marie, which said checks were taken in lieu of lawful money of the United States in the amount called for on the face of said checks, which said money was then due to said county of Chippewa from said city of Sault Ste. Marie, and which checks bore dates several weeks prior to the date of their delivery to said James T. Bennett, and that although said checks were dishonored when presented at the bank for payment, the said Bennett did not give the city of Sault Ste. Marie or its treasurer notice of dishonor and protest and did not charge back to the city of Sault Ste. Marie the amount called for by said checks but did carry them as cash on his books until, to wit, the SOth day of June, A. D. 1906, when he surrendered said checks to Victor E. Metzger, the maker of same, and received in return one check for the total of the amount of the checks so surrendered, which said check was signed by Victor E. Metzger drawn on the Central Savings Bank of Sault Ste. Marie, Mich., and payable to J ames T. Bennett, county treasurer, and that thereafter the said James T. Bennett continued to and did carry said checks as cash on his books until the expiration of his term as county treasurer and that the county of Chippewa, Mich., had not received any money whatever for said check. And the said plaintiff avers that by reason of the said promises the said defendants became and were indebted to the said plaintiff in the sum of six thousand ($6,000.00) dollars. Yet said defendants though often requested have not paid the same or any part thereof to said plaintiff, but wholly neglect and refuse so to do. To the plaintiff’s damage of six thousand ($6,000.00) dollars and therefore it brings suit.” The second count alleges that the said county treasurer, at the expiration of his term, neglected and refused to pay over to his successor in office the said sum of money which had come into his possession as such treasurer. The third count of the declaration alleges the indebtedness and the neglect to pay over to the plaintiff upon demand; and the fourth count is general in its language, and alleges the refusal of said county treasurer to pay over to his successor, the sum of $4,066.70, due the plaintiff. The plea was the general issue. Upon the trial of the case at the circuit the defendants offered no testimony, and, as is said by the defendants, there is little dispute about the facts in the case. Defendant Bennett was elected county treasurer for his second term in November, 1904, and his term of office expired December 31, 1906. The bond, the substance of which is set forth in the first count of the declaration, was filed January 3, 1905, and was duly approved by the board of supervisors of said county. John F. Deadman was city treasurer of the city of Sault Ste. Marie in the winter and spring of 1905. At the final settlement between defendant Bennett, as county treasurer, and the said city treasurer, the latter indorsed and turned over to defendant Bennett, as county treasurer, in settlement of the State and county taxes, on or about April 17, 1905, two checks upon the Central Savings Bank of Sault Ste. Marie, signed by V. E. Metzger, one for $3,027.97, and the other for $1,038.73, as part payment of the moneys due from the city of Sault Ste. Marie to the county of Chippewa for State, county, and county road taxes. The said county treasurer, Bennett, gave the said Deadman, city treasurer, a receipt showing the payment of the amount of the State, county, and county road taxes. The said V. E. Metzger was then vice president of said bank, and was the owner of record of a quantity of real estate in Sault Ste. Marie, upon which there was due a considerable sum of money for city, State, county, and county road taxes, and he was also the agent of divers other parties owning 'real estate in said city, for whom he paid taxes; and he had given to the said city treasurer, some time in the month of January, the two checks above described for unpaid taxes of the year 1904, with the explanation that he (Metzger) did not have that much currency on hand in the bank at that time. Said city treasurer refused to turn over the tax receipts which he had made out, but kept them at the request of Metzger, until about April 17, 1905, when it became necessary to make return of the taxes to the county treasurer. Said city treasurer had telephoned the bank and had been informed that there were no funds to pay said checks. This had been done previous to April 17th. The checks not having been made good at that time, the said city treasurer threatened to return the taxes as delinquent. Upon the promise by Metzger that “he would fix it up with Mr. Bennett,” the county treasurer, he (Metzger) asked Bennett to take the checks over from the city treasurer as cash and hold them for a while, which the said defendant Bennett, as county treasurer, promised to do, and upon a statement made by defendant Bennett, to said city treasurer, Deadman, that “it was all right,” the said city treasurer paid the said county treasurer by these two checks, and three other checks upon banks in the city (which latter were ultimately deposited by defendant Bennett, and paid), the full amount due from the city to the county for State, county, and county road taxes, and received from the said county treasurer, Bennett, a receipt as for cash in full payment of the city’s indebtedness. The evidence was. undisputed that, at the time these checks were turned over by said Metzger to said city treasurer, the latter understood that there was no. money in the bank to meet them, and when the said checks were turned over to the said Bennett,- county treasurer, it was understood, both by said Bennett, county treasurer, and said Metzger, that there was no money in the bank to meet them. Those checks were then between two and three months old. Upon the acceptance by said county treasurer of these checks, the city treasurer marked the items of taxes “paid,” and issued to said Metzger duplicate tax receipts. Upon the trial of the case the evidence showed that it was impossible to determine the particular descriptions of land, the taxes upon which were intended to be paid by the “Metzger checks.” The books of the county treasurer showed that the items represented by these checks and carried as cash were marked “Metzger checks;” that they were carried as cash in the county treasurer’s office from the time of their receipt until the 25th day of May, 1905, when they were deposited in the Central Savings Bank and carried by that bank until the 21st of June, 1905, when they were returned to the county treasurer’s office, and the amount carried after that as cash on the county treasurer’s books until an audit by one Clark was made in October, 1910. It should be stated, however, that on or about June 30, 1906, the said two checks were taken up by Metzger, and a new check was given in their place to said Bennett, county treasurer, for the aggregate amount of $4,066.70. There was no evidence that defendant Bennett ever received any money on either of said checks,' or that at any time while the checks were in his possession there was money in the bank to meet them. The checks were never protested nor notice of dishonor given. It was the claim of the plaintiff, upon the trial, that by reason of defendant Bennett accepting these checks and receipting for them as cash, and carrying them as such, he and his bondsmen became liable to the county for the amount of the checks and interest, as for money had and received as such county treasurer. On the other hand, it was the claim of defendants that they were only liable for such amounts of money as actually came into said Bennett’s hands, and that no notice of protest or dishonor was necessary, as both Deadman and Metzger knew there were no funds in the bank to meet the checks at the time they were given. It appeared in evidence that at the time these checks were given the real estate assessed to said Metzger carried an assessed valuation of $80,000. The record does not show that any notice was ever given the sureties on said Bennett’s bond that any claim was to be made against them by reason of the taking of the Metzger cheeks, and it was the claim of the defendants that they had no notice until after action had been barred upon the Metzger checks. At the opening of the case, defendants objected to the introduction of any testimony under the first count in the declaration, for the reason that it did not state a cause of action, as there was no allegation in the declaration that at the time said Bennett went out of office the said plaintiff could not have charged back to the city of Sault Ste. Marie the amount of said checks; and it was the claim of defendants that the •declaration should allege, and the proofs must show, the loss of some right given by the statute to plaintiff before said defendants would be liable. Defendants also asked that plaintiff be required to elect under which count in the declaration it would proceed, as it was admitted that no other shortage was claimed except on the so-called Metzger checks. To this request the court remarked: “I think the election should probably come when all the testimony is in, unless there is an entirely different transaction than that stated in the opening statement relied upon.” To this ruling defendants excepted, and the matter was not again called to the attention of the court. At the close of the plaintiff’s case, defendants’ counsel moved the court to direct a verdict for the defendants, for the reason that there was no allegation in the declaration which showed that the county had suffered pecuniary loss by reason of any act of defendant Bennett as county treasurer; that there was no proof that by reason of the taking of said checks by the county treasurer the county had lost any right on the 1st of January, 1907, to charge back the amount of the checks to the city; that there was no proof or attempt to prove any bad faith on the part of defendant Bennett in accepting said checks in settlement with the city treasurer; and that there was no showing by reason of such acceptance that the county had lost any right for the recovery of money due it from the city. This motion was overruled, and exception taken by defendants’ counsel. Certain requests to charge were presented by counsel for said defendants embodying the propositions urged in said motion. Other requests to charge were as follows: “III. Under the laws of Michigan a county treasurer has a right to accept checks in his settlement with a township or city treasurer, and is not responsible for any loss which may be occasioned thereby, unless it is occasionéd through some fault or negligence of his own. “IV. In this case it is undisputed that at the time of the giving of these checks the maker, Metzger, had large holdings of real estate in the city valued on the tax rolls at over $100,000, and was also vice president of the Central Savings Bank of this city, the bank upon which the checks in question were drawn, and it would not be negligence or improper conduct for the county treasurer to accept those checks even though he knew that at that time there was no money in the bank to meet them, but had a right to rely on Metzger’s statement that the funds would be there. “V. I charge you that Mr. Bennett nor his bondsmen are not liable for any negligence or a failure of duty on the part of the board of supervisors in auditing the books of the county treasurer after the 1st day of January, 1907, and are not liable for any loss which may have accrued to the county because of their acts or failure to act, but could only be held liable for such damages as actually existed when Bennett turned over the office of the county treasurer to his successor, McDonald. “VI. I charge you that, as Deadman and Metzger both knew that there were no funds in the bank to meet the check at the time it was delivered to Bennett, there was no necessity for protest or notice of dishonor and they will be deemed to have waived any such notice by reason of such knowledge. “VII. The fact that Bennett took a new check from Metzger to himself as county treasurer in lieu of two checks will not relieve Metzger or Deadman from their responsibility unless you find that they were taken and it was intended that they should operate as a payment of the two checks already in Bennett’s possession. “VIII. I charge you that neither Bennett nor his bondsmen are liable for any damages which may have accrued or loss to the county or city by reason of the failure of Deadman to return as delinquent the property of Metzger, as that is nothing he could do as county treasurer or under cover of his office. “IX. I charge you that, the plaintiff having failed to establish the fact that they have suffered any loss by reason of the act of Bennett in taking those checks, then your verdict should be for the defendants, for no cause of action.” Said requests to charge were refused. In the course of its charge to the jury the court used the following language, upon which error is assigned : “Now, the first question which logically presents itself is whether Mr. Bennett was'justified in receiving and accepting the two Metzger checks from Dr. Deadman in settlement of the taxes of the county. Now, I charge you- that he was under no obligation to receive those checks in payment of taxes; that he could, and would have been within his rights as county treasurer in so doing, if he had refused to accept those two checks and had demanded the cash. But we have a law which permits a public official to receive and accept checks in payment of taxes and other debts owed to the city or municipality for which he acts; such checks, however, not constituting payment unless paid on presentation. “This statute would not be subject to such a construction as would enable the treasurer to accept any and all checks presented, without incurring any liability himself. If a check were presented which he knew to be worthless by reason of lack of funds in the bank upon which it was drawn, and the payment of which was known to him to be uncertain or doubtful, he would be deemed to have assumed a responsibility for such consequences as might ensue from his action. So, in this case, the question of Mr. Bennett’s good faith is material, and for you to determine. “If you find that he honestly accepted the checks, in good faith, believing that they would be paid in due course of business, or within a reasonable time, he would be justified to that extent in accepting the checks under this statute. But if he accepted the checks in bad faith, held them, and continued to treat them as his own transaction, then he would be liable. That is to say, if he continued to treat them, and also the check which was afterwards given, as his own transaction, then he would be liable. “Now, after receiving these checks, if you find that he received them in good faith, Mr. Bennett would not be entitled to rely upon the statute as a protection against entire inaction, but would be required to use reasonable diligence in protecting the county from loss. In a proper case, it would be his duty to at once present the checks and have notice of dishonor given the indorser in case they were not paid. But, as the undisputed evidence shows that Dr. Deadman knew at the time he delivered the checks to Mr. Bennett that there were no funds in the bank to pay them, it was not necessary to have notice of protest served upon Mr. Deadman to hold him as an indorser of the checks. But Mr. Bennett could have charged them back to the city treasurer and collected payment for them, regardless of the fact that he did not give notice of their nonpayment. * * * “To sum up this controversy, gentlemen, I would say that Mr. Bennett was under obligation as an officer during his term of office to use reasonable care and diligence to protect the county from loss. He would have no right to take a check from Mr. Metzger and release the other checks bearing the indorsement of the city treasurer; but, if he did, and thus released the other checks, he and his bondsmen are liable to the county. The principal question is, with what intention and understanding was the second check taken, and, in considering this intention and understanding, you may take all the circumstances into consideration and say what the intention evidently was. Any secret intention which Mr. Bennett may have had contrary to the plain appearance of the circumstances would not release him, but the apparent and reasonable intentions, as shown by the acts, would be those which would control and which you would take into consideration.” The trial having resulted in a verdict and judgment for the plaintiff, there was a motion for a new trial which, with the exception of the claimed error in the admitting of certain testimony, was substantially covered by the requests to charge and the motion for a directed verdict. This motion, for a new trial was denied and exception duly taken. The defendants have brought the case here upon writ of error, and, while there are many assignments of error, the defendants have grouped the same under the following heads: (1) Erroneous rulings with reference to the scope of the declaration. (2) Erroneous rulings as to the admissibility of evidence. (3) Refusal to direct a verdict. (4) Refusals of defendants’ requests to charge and errors in the charge. (5) Denial of defendants’ motion for a new trial. 1. As we understand the propositions of appellants under the first head, they are embraced in the first and second assignments of error based upon defendants’ objection to the introduction of any evidence under the first count in the declaration, and their motion that the plaintiff be required to elect upon which count it would proceed. The first count in the declaration, as set forth (before assigning the breach of the bond), states the condition thereof, as prescribed by the statute (section 2535, 1 Comp. Laws), which we call attention to without repeating the language of the count. As we read, this count of the declaration, it sets forth the facts: as the evidence tended to prove them: . The taking of the checks in lieu of money; their exchange for another check; carrying the checks as cash all of the time on the books of the county treasurer; and failure to account for the cash, with resultant loss to the plaintiff. And the fourth count alleges the negligence to turn over to his successor in office the said balance of $4,066.70 due the county as a result of said county treasurer’s failure to perform his duty. It is worthy of remark at the outset that the county treasurer’s bond, under the statute, is conditioned that such person and his deputy, and all persons employed in his office, shall faithfully and properly execute their respective duties and trusts, and that such treasurer shall pay according to law all moneys which shall come to his hands as treasurer, and will render a just and true account thereof, etc. As to the ruling with reference to the election of counts, we think the court did not err- in refusing to require plaintiff to elect at the opening of the case. There was no such inconsistency between the counts, as rendered such election necessary. The court intimated that a motion might be made later, but counsel for defendants failed to again call the attention of the court to the matter. In our opinion the first count states a cause of action which, if supported by the evidence, would warrant a recovery in this case. 2. We have examined the record with much care, and are of opinion that no reversible error was committed in the admitting of evidence. 3. We are of opinion that the court did not err in refusing to direct a verdict for the defendants, and this brings us to the merits of the question involved. A reference- to the record discloses that the former city treasurer, Deadman, testified that he stated to Metzger that he would not give Metzger his tax receipts, but would return his delinquent taxes unless he (Metzger) cashed the checks; that Metzger asked him not to return the taxes delinquent, but wait until he could see County Treasurer Bennett; that Metzger later returned, saying that he had arranged it with Bennett, which statement defendant Bennett later confirmed. This testimony is absolutely uncontradicted by any witness. The record shows, and it is conceded by appellants, that Bennett did take the checks, receipted for them as cash, entered them on his books as cash and so carried them to the end of his term. Metzger testified: “I asked Mm to take the checks over from the city treasurer as cash and hoM them for a while. He said he would.” And defendant Bennett’s treatment of the checks subsequently clearly indicates that he was as good as his word and held the checks as his own personal obligation. The record shows that this man Bennett was just entering upon Ms second term as county treasurer. Metzger had been one of his sureties upon his former bond to the county. He knew his duties as county treasurer. It is inconceivable that defendant Bennett did not know that the result of his action was the surrender of the tax receipts by the city treasurer to Metzger, the marking “paid” upon the said rolls of the taxes for which the checks were given, for, with the said rolls in his possession, had there been any question about it, he could have effectually settled the question by an examination. Not only was Metzger’s property involved in that payment, but with those checks he had paid taxes on other people’s property for whom he was agent. Counsel for defendant claim that these checks might have been charged back to the city. Whose duty was it to furnish the information necessary to charge these checks back to the city, if it was not the duty of defendant Bennett? And who but he knew that these taxes had been returned as paid, and that he had received these overdue and dishonored checks as cash in lieu of the taxes due the county? Is it possible that, under our system, a county treasurer can, as the homely saying is, receive as cash, “cats and dogs,” or worthless paper, for taxes due the county, and carry the same upon his books for two years as cash (others interested being in ignorance of the fact) without incurring liability upon his bond? Counsel for defendants also urge that these unpaid taxes could have been charged, and may now be charged back to the city. Whose duty was it to call attention to, and attend to, that matter? The tax roll itself had shown these taxes paid. There is no question here about the regularity of the assessment of the taxes. They were not returned as delinquent. Nobody knew this better than the county treasurer. It appeared upon the trial that it was impossible to identify the lands for the payment on which these checks were given. To charge back these taxes upon the city at large would be unjust to the taxpayers, who paid their taxes. Whose duty was it to call the attention of the board of supervisors to the matter of charged back or rejected taxes? The auditor general could not know of this irregularity from any report which had been made to him by the county treasurer. Under sections 3918, 3919, and 3920, 1 Comp. Laws, there is no machinery provided for the charging back of taxes in the condition shown by this record. It appears undisputed that Deadman, the city treasurer, did not know that these checks were unpaid until nearly six years after he had indorsed them over to the county treasurer. The final check seems to have been turned over by defendant Bennett to his successor in office as so much cash, but the successor did not receipt for the amount. All of this was unknown to the county or the plaintiff until 1910. , It is urged by appellants that the taking of these checks by County Treasurer Bennett in the first instance was justified by the provisions of Act No. 228, Pub. Acts 1899 (1 How. Stat. [2d Ed.] §889). We do not so understand the statute. The history of the enactment of this statute is well known to the profession. Questions had arisen as to the effect of the tender of a check or draft in the purchase of State tax lands, and the payment of taxes to county treasurers as incident thereto. See Moore v. Auditor General, 122 Mich. 599 (81 N. W. 561). That act provides that: “Whenever any check or bank draft shall be tendered for the payment of any debt, taxes or other obligation due to the State or to any municipality therein, such check or draft shall operate as a payment made on the date said check or draft was received and accepted by the receiving officer, if it shall be paid on presentation without deduction for exchange or cost of collection: Provided, however, that no receiving officer shall be required to receive in payment of any debt, taxes or other obligation collectible or receivable by him any tender other than gold or silver coin of the United States, United States treasury notes, gold certificates, silver certificates, or national bank notes.” There can be no question upon this record that, when County Treasurer Bennett entered the checks on the county treasurer’s books as cash, he knew there were no funds in the bank to pay them. The fact there were no funds in the bank was the real occasion and reason for his having accepted the checks in the first instance. When, a month later, he deposited them in the bank upon which they were drawn, and where they remained for a month and were then returned to him and again charged to him as county treasurer, his attention was certainly again called to the fact that these checks were dishonored, if not worthless paper. There is nothing in the holding of this court in City of Sault Ste. Marie v. Rotten, 171 Mich. 265 (136 N. W. 1119), that justifies the conduct of defendant Bennett. In that mandamus proceeding, referring to the then county treasurer, this court said: “The city treasurer had a right to accept the checks for taxes, but, if the same were not honored, it would not amount to payment. * * * Whether the respondent acted with diligence after accepting the checks, whether he presented them for payment within a reasonable time, and whether relator was given the proper notice of the dishonor of the checks, are questions which ought not to be gone into on this record.” We think the charge of the court upon this subject was as favorable to the defendants as they could ask. It was never contemplated by the act in question that the county treasurer, in settlement with a township or city treasurer, could accept stale checks, and, after their payment had been refused on presentation, carry them upon his books as cash for a period of two years. See Staley v. Columbus Township, 36 Mich. 38. The official books of the county treasurer are presumed to show the correct amount due from that officer to the county at all times. State Bank v. Chappelle, 40 Mich. 447. The general provisions of the statute which make it the duty of the county treasurer to receive and properly account for the county moneys was not intended to cover all his official duties. This clearly appears from the requirements of his official bond, which, in addition to the condition that this officer should properly account for all moneys received by him officially, is also conditioned that the treasurer, his deputy, and all persons employed in his office, shall faithfully and properly execute their respective duties and trusts, clearly implying that there are official duties and trusts imposed upon the treasurer beside that of receiving and accounting for county moneys. He is an indispensable officer, charged with many duties. Attorney General v. Supervisors, 30 Mich. 388. In our opinion defendant Bennett, having taken the checks for cash, having carried them, or the renewal check, throughout the balance of his term of office, nearly two years, on his books as cash, is chargeable with the amount as cash, and should be held estopped from claiming otherwise, especially in the absence of any showing from him or his sureties as to what or how much, if anything, he had received upon the checks, or any of them. Having received the checks as cash, he must be charged with them as cash. County of Montmorency v. Wiltse, 125 Mich. 47 (83 N. W. 1010); County of Montmorency v. Putnam, 127 Mich. 36 (86 N. W. 398); County of Montmorency v. Putnam, 135 Mich. 111-118 (97 N. W. 399). It is further urged, in this connection, that the plaintiff has been guilty of laches in lying by, and not bringing this action until after the statute of limitations had run as to the Metzger checks. It already appears that the plea in this case was the general issue. No defense of the statute of limitations, or of laches, was interposed in the case. That this defense is not available to these defendants is apparent from an examination of Circuit Court Rule 76. Such defense would be an affirmative defense, and not available under the general issue. This rule has been applied by this court in many cases. Bryant v. Kenyon, 123 Mich. 151 (81 N. W. 1093); Wallbridge v. Tuller, 125 Mich. 218 (84 N. W. 133); Putze v. Insurance Co., 132 Mich. 670 (86 N. W. 814, 94 N. W. 191); R. K. Carter & Co. v. Weber, 138 Mich. 576 (101 N. W. 818); Scott v. Longwell, 139 Mich. 12 (102 N. W. 230, 5 Am. & Eng. Ann. Cas. 679); J. Richardson & Co. v. Noble, 143 Mich. 546 (107 N. W. 274), and other cases. Upon this record it may be said that the defendants were as well informed in regard to the condition of defendant Bennett’s books as county treasurer, and his account with the county, as was the plaintiff itself, and had equal means of investigation. We have examined the cases cited by defendants and think they can be readily distinguished from the instant case. The county having been damnified by the unlawful conduct of the said county treasurer, as above indicated and pointed out, it cannot be said that the sureties were released because of delay in discovering the default of the treasurer. City of Detroit v. Weber, 26 Mich. 284-293; Board of Education v. Andrews, 142 Mich. 484-487 (105 N. W. 1118); United States v. Hart, 95 U. S. 316. We think the case of County of Montmorency v. Wiltse, above cited, clearly indicates that a municipality is not required to investigate the character or collectibility of any paper which the treasurer may take in the payment of taxes, and carry as cash. We do not dwell upon the other assignments of error for the reason that we are of opinion that the trial court might well have directed a verdict for the plaintiff under the first count in the declaration, and that, if any errors were committed in the trial of the case, ■ such errors were harmless. Finding no prejudicial error in the record, the judgment of the circuit court is affirmed. Brooke, C. J., and McAlvay, Kuhn, Ostrander, Bird, and Moore, JJ., concurred. Steere, J., did not. sit.
[ -39, 15, -6, 29, -4, 44, 35, -32, 2, 7, 4, -24, 5, 6, -24, 2, -38, -31, -8, 36, -34, -45, 1, -13, 6, 8, -27, 36, 3, -24, -17, 22, -29, 11, -4, 13, -1, -48, 43, -41, -15, -44, 57, 37, -59, -61, -23, -42, -7, -66, -11, -11, 17, -10, 3, 42, 12, -48, 7, -11, 0, -28, 53, -5, -17, -45, -14, 21, 26, 0, 34, 11, 8, 2, 22, 18, -31, -36, -46, 29, -15, -41, -20, -10, -47, -69, -11, 12, -8, -9, -7, 51, -30, 43, 26, 7, -27, -19, -9, 0, -15, -6, -3, 71, 12, 0, 14, -68, -33, -14, -19, -40, 63, -35, -19, -26, -14, -9, 72, -28, 23, -10, -6, 5, -4, 27, 33, -15, 28, 4, 32, -44, 11, 19, -60, 20, -22, 15, 56, 23, 19, 8, 5, 10, 16, 3, 21, -9, -13, 25, -59, 0, -9, 60, -18, 54, 19, -31, 8, -93, 32, -23, 56, -46, -47, -4, 5, 1, -16, 26, 21, 26, -77, -2, 37, 4, -27, 20, 37, 8, 27, 8, 22, -11, -32, 0, 15, -13, 34, 57, -3, 0, -31, 29, -27, 27, 13, -6, -37, -16, 6, -84, -3, -33, -52, -29, 71, 16, -3, 0, -53, -28, 49, 28, -2, 8, -13, -22, 40, -29, 40, 32, 27, 95, 3, -31, 6, -8, -44, -14, 6, -2, 46, 9, -44, -14, 11, -6, 15, 5, -51, -30, -15, 27, 31, -19, -38, -62, -29, 55, -1, 0, -20, 7, -8, -6, 41, -28, 0, 42, -17, 0, -51, 27, -29, -32, -11, 15, -4, -12, 4, -14, 55, -28, -28, 7, 3, 19, -24, 0, -28, -23, -45, 38, -16, 23, -28, -26, -8, -6, 5, 17, 10, 18, 43, -3, 20, -52, 31, 17, -56, 1, 4, -5, 2, -5, 5, -6, -29, 0, 15, -55, -12, 11, 46, -11, 45, 23, 23, -5, 33, 68, -52, -6, 61, 25, 17, -9, -9, 0, -62, -31, -7, -30, -1, 25, 36, 3, 10, -27, 57, 15, 40, -3, -51, -24, -31, -10, -27, -30, -26, 2, 25, 57, -48, 54, 35, -5, -16, 38, 38, -12, 3, 32, 20, -63, -10, -26, 22, 27, 28, 17, 2, -22, 13, 10, -22, 6, -30, 47, -29, 53, 1, 26, 75, -46, -26, 2, -60, -51, -50, 19, 3, 4, -10, -30, 0, -41, -67, -43, -22, 47, 43, 7, -19, 11, -18, 2, 47, 29, 23, -24, -16, -32, -9, -3, 69, 22, 1, -2, 0, 2, 2, -31, 41, -51, 6, 74, -46, -41, 27, 33, 17, -14, 54, 7, -56, 11, -57, -24, -2, 20, 67, -43, 3, -51, -26, 38, 49, -3, -7, -23, -36, -6, -6, 41, 22, -50, -45, -35, 0, -45, -5, -2, -20, -4, -14, -23, 33, -6, -28, 33, -54, -4, -24, -58, 8, -33, -8, -2, 15, -12, -9, 12, -22, -14, -23, -30, -31, 6, 33, -4, -42, 27, 20, 22, -75, -16, 32, 20, -13, 2, -48, 17, -22, 27, -17, 5, -17, 29, 0, -26, 22, -7, 2, 36, 29, -47, -25, 18, 2, 92, -46, 25, 6, 41, 8, 9, -23, 24, -31, -14, 45, 51, 3, 40, 16, 44, -21, -37, 26, 17, 34, 72, -43, 20, -14, -18, 15, 28, -37, -13, 26, 20, 3, 21, -4, 14, 19, -17, -8, -29, 21, -38, -2, -38, 6, -7, -16, -29, 25, 7, 14, 42, 12, 21, -5, -20, 2, 15, 19, -23, 11, 3, 44, 9, 20, 13, 17, 1, 50, -25, -60, 16, -25, -6, 10, 59, 35, -30, 19, -10, -17, -7, 18, -44, 28, 0, 30, 16, 1, -3, 41, 6, 22, -16, 10, -62, -7, 22, -16, -11, 36, 4, 16, 11, 17, -50, -53, 11, -38, 7, 7, 52, -4, 28, -3, 58, 7, -35, -60, -12, 21, 1, -8, 30, -58, 24, 36, -14, 1, -40, 28, 29, -25, 7, 24, -5, 55, -6, 45, -5, -33, 0, -1, 23, 3, 42, 40, -28, 29, -50, 18, -55, 14, -46, -29, 11, 28, -25, 6, 17, 13, 43, -25, -22, -38, 24, -3, -14, 22, 53, 16, 1, 13, -4, 11, 32, -7, -14, 2, 6, -34, 4, -6, 0, -6, -1, -18, -18, -25, 25, 16, -1, -18, 30, -3, -8, -29, 1, -39, -85, 6, -10, 2, 3, 13, -33, -40, -19, 8, -9, -28, 0, 48, 16, -23, 27, -67, 29, 28, -6, -15, 22, 1, 0, 16, 9, -21, -20, 38, 14, 25, 44, 15, -36, -28, 28, -15, -36, -34, 9, 31, 13, 12, 3, -9, 24, -27, -48, 31, -10, -37, -12, -17, -4, 14, 0, 24, -26, 38, -20, -1, -9, 10, -25, 1, 2, 25, 42, -34, -79, 15, -21, -28, 27, 46, 18, 17, 16, -14, 58, -7, 32, -34, 59, -20, -8, -16, 21, -3, 17, -14, -3, 13, 35, -21, 29, -24, -25, -27, 4, 23, 10, -15, 40, 11, 0, -31, 5, 4, 5, 4, -20, 0, -2, -15, -24, -34, 43, -17, -50, -26, -16, -33, 27, 14, 39, -23, -42, -25, 2, -53, 8, -8, -1, 30, -50, -17, 29, 10, -5, -62, -46, -12, -41, -13, 3, -16, 51, 18, -19, -25, 5, 10, 59, 50, -18, 10, -36, -46, 18, 27, -27, -9, -10, 24, -46, 31, 66, -8, 8, -22, 0, -13, -20, -17, -49, -33, -19, 28, -5, 15, -10, -10, -39, 55, -5, 35, 9, 1, -4, -27, -30, -43, -40, 18, 1, -27, 34, 19, 10, 2, -19, -9, 35, 41, 39, -14, 42, -34, 50, -28, 23, 21, -11, 0, -42, 45, 18, 55, -26, -7, -34, -12, 21, 13, -15, -26, 15, 7, -15, 14, 47, -19, 0, -38, -18, 14, 31, -16, 23, 50, -25, -2, 8, -6, -17, 11, 4, -2, 16, 8, -21, -24, -31, 42, -13, 22, -54, 9, -52, -20, 23, -20, -18, 45, 14, 0, -2, 36, 20, -16, -10, 51, -27, 54, -43, -34, -42, 56, -12, 6, 10, 37, -36, 0, 95, -16, 52, 4, 7, 2, -41, -4, 34, 13, 45, 25, 21, 59, 0, -19, 29 ]
MacKenzie, J. Defendant Washtenaw County Board of Road Commissioners (hereinafter "Road Commission”) appeals as of right from a special jury verdict finding it 7.5% negligent and severally liable for damajges suffered by plaintiff Doreen Edwards Dwyer and jointly and severally liable for injuries to Gregory Patón and injuries resulting in the death of Christopher Edwards. The parties were involved in a two-car collision between vehicles driven by defendant Joblinski and plaintiff Doreen Edwards Dwyer. Defendant Joblinski has not appealed. Plaintiff has filed a cross-appeal. The trial testimony established that plaintiff, accompanied by a friend in the front passenger seat, and, in the back' seat, plaintiff’s sons, two-year-old Gregory Patón, and three-year-old Christopher Edwards, was driving south on Bunton Road in Washtenaw County at approximately 4 p.m. on June 28, 1976. She testified that while her vehicle was in the intersection of Bunton Road and Martz Road, it was struck by defendant Joblinski’s vehicle which had been travelling east on Martz Road. Both roads are gravel, rural roads. At the intersection, Bunton Road is a through street while yield signs face Martz Road in both directions. Testimony was adduced that, on the day of the accident, as well as several days before, the yield sign facing east-bound traffic on Martz Road was bent. Conflicting testimony was given as to whether the sign could be read by persons in cars travelling east on Martz Road. The yield sign was posted approximately 500 feet before the intersection. Christopher Edwards died immediately from injuries sustained in the collision. Gregory Patón sustained personal injuries as a result of the impact and retains scars on his face. Doreen Edwards Dwyer suffered cuts in the accident. She also complains of headaches and backaches. Plaintiff sued defendant Joblinski for negligent operation of his truck and defendant Road Commission for negligent maintenance of the yield sign. At the conclusion of plaintiff’s case, the trial judge granted defendant Road Commission’s motion for a directed verdict. Trial was stayed pending plaintiff’s application for emergency appeal, which was granted by this Court on May 4, 1979, and defendant Road Commission was ordered reinstated. The Road Commission sought and was denied leave to appeal to the Michigan Supreme Court. Trial resumed on May 7, 1979, and the case was submitted to the jury, which found plaintiff 19.375% negligent, defendant Joblinski 73.125% negligent, and defendant Road Commission 7.5% negligent. The jury further awarded damages of $16,500 to plaintiff, Dwyer, individually, $12,437.50 on behalf of Gregory Patón, and $29,500 to the estate of Christopher Edwards. Following a hearing on the question of whether the judgment should provide for several as opposed to joint and several liability between defendants, the court issued an order providing for several liability as to the claim of plaintiff Dwyer and joint liability as to the claims of Gregory Patón and the estate of Christopher Edwards. Defendant Road Commission initially argues that the trial court’s decision granting its motion for a directed verdict was correct and was erroneously overruled by the prior panel of this Court. The identical issue was previously addressed and resolved by a prior panel of this Court in the interlocutory appeal herein. Where an appellate court has passed on a legal question and remanded the case to the court below for further proceedings, the legal question determined by the appellate court will not be differently determined in a subsequent appeal in the same case where the facts remain the same. Allen v Michigan Bell Telephone Co, 61 Mich App 62, 65; 232 NW2d 302 (1975). Reconsideration of this issue is, therefore, precluded by the law of the case doctrine. The next issue is whether the judicial adoption of pure comparative negligence in Michigan, in Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979), mandates the abrogation of joint and several liability among defendants whose proportionate fault has been adjudicated. Prior to the adoption of comparative negligence, it was unquestioned that, where the negligence of two or more persons concurred in producing a single indivisible injury, such persons were jointly and severally liable, even if there was no concert of action between them or despite whether it was possible to determine what portion of the injury was caused by each. See Lindsay v Acme Cement Plaster Co, 220 Mich 367, 376; 190 NW 275 (1922). Defendant Road Commission, however, argues that the comparative negligence doctrine requires that a defendant be liable only to the extent of his own negligence. This argument was recently rejected by a panel of this Court in Weeks v Feltner, 99 Mich App 392, 395; 297 NW2d 678 (1980), reasoning that: "This argument ignores the fact that the comparative negligence doctrine also seeks to assure fair and adequate compensation for injured plaintiffs. Unlike the concept of contributory negligence, it avoids unduly penalizing a plaintiff for his own fault. While some unfairness exists when one defendant is held liable for the fault of his codefendants, this is equally true of cases where the plaintiff is not at fault. The acts of Albert Feltner were foreseeable by the other defendants, and there is nothing inherently inequitable in holding them liable for the resulting injury. The doctrine of comparative negligence does not mandate abandonment of joint and several liability. In fact, a majority of other jurisdictions considering the issue have retained joint and several liability. See Schwartz, Comparative Negligence, § 16.4, p 93 (1978 Supp).” See also Conkright v M E Boatman Co, 496 F Supp 147 (WD Mich, 1980). We recognize that, prior to Placek, one of the justifications for allowing joint and several liability among defendants was that plaintiff was precluded from recovering unless free from negligence. Thus, it seemed fair that an innocent plaintiff should be fully compensated even if it meant that one negligent defendant had to be responsible for the total loss to compensate for the insolvency of another negligent defendant. This is not the case under the pure comparative negligence system now the law in Michigan. Indeed, as the Road Commission points out, its own negligence (7.5%) was less than that of plaintiff Dwyer (19.375%). Courts in jurisdictions retaining joint and several liability under various comparative negligence systems have attempted to rationalize this seeming inconsistency by finding the negligence of a defendant, because it caused plaintiff harm, more culpable than that of plaintiff, whose negligence only resulted in self-inflicted harm. Thus, defendant’s negligence has been described as tortious, while plaintiffs is not. See American Motorcycle Ass’n v Superior Court of Los Angeles County, 20 Cal 3d 578; 146 Cal Rptr 182; 578 P2d 899 (1978), Seattle First National Bank v Shoreline Concrete Co, 91 Wash 2d 230; 588 P2d 1308 (1978). In Seattle First National Bank, the Court further pointed out that cases still exist where plaintiffs are free from fault. Notwithstanding, a minority trend in the direction of abrogating joint and several liability has been recognized. See Schwartz, Comparative Negligence, § 16.4, p 120 (1981 Cum Supp). There, the author notes that in at least five states where comparative negligence has been adopted by the Legislature, the statutes explicitly abolish joint and several liability. The Oklahoma Supreme Court, in Laubach v Morgan, 588 P2d 1071 (Okla, 1978), held that where a jury was able to apportion damages, several liability would apply. It should also be noted, however, that Oklahoma does not allow contribution among joint tortfeasors. A novel approach to the problem was recommended by Justice Clark of the California Supreme Court, dissenting in American Motorcycle Ass’n, supra. Arguing that joint and several liability is unfair to a marginally negligent defendant and directly contradicts the philosophy behind the comparative negligence doctrine, Justice Clark favored abandoning joint liability in negligence cases except where the plaintiff is free from negligence. Citing the contributory negligence doctrine, previously the law in California (as well as in Michigan), Justice Clark further discarded the notion that public policy requires fully compensating a plaintiff at all costs. Assuming such a policy is warranted, Justice Clark proposed that its establishment be left to the Legislature, a body better equipped to study all the consequences. However, in the interim, Justice Clark suggested that if plaintiff is negligent, only a limited form of joint and several liability be retained. Under this theory, "the loss attributable to the inability of one defendant to respond in damages should be apportioned between the negligent plaintiff and the solvent negligent defendant in relation to their, [own] fault”. Justice Clark explained his proposal as follows: "Returning to my 30-60-10 illustration, if the 60 percent at fault defendant is unable to respond, the 30 percent at fault plaintiff should be permitted to recover 25 percent of the entire loss from the 10 percent at fault solvent defendant based on the 3 to 1 ratio of fault between them. (The solvent defendant would have added to his 10 percent liability one-fourth of the 60 percent or 15 percent to reach the 25 percent figure.) To the extent that anything is recovered from the 60 percent at fault defendant, the money should be apportioned on the basis of the 3 to 1 ratio. The system is based on simple mechanical calculations from the jury findings.” 20 Cal 3d 578, 614. Cognizant of the inequities of placing the entire loss attributable to an insolvent defendant solely on the negligent plaintiff or solely on the solvent negligent defendant, we, nevertheless, do not believe it is within the province of this Court to relegate the common-law doctrine of joint and several liability. We agree with Justice Clark that the Legislature is best equipped to consider the economic consequences, the policy considerations, and the equities on both sides. Thus, we hold that the trial judge should have imposed a joint and several verdict in favor of plaintiff Dwyer, Gregory Patón, and the estate of Christopher Edwards against both defendants. The next issue is whether reversible error resulted as to both defendants from the trial court’s refusal to give plaintiff’s requested (written) in structions on medical and funeral expenses. The record indicates that plaintiffs preserved this issue by objection. See Kirby v Larson, 400 Mich 585, 604; 256 NW2d 400 (1977). Initially, we reject the Road Commission’s contention that the fact that defendant Joblinski has not chosen to appeal bars plaintiff from asserting this error in a cross-appeal. See GCR 1963, 807.3, under which plaintiff’s cross-appeal operates against defendant Joblinski even though he chose not to respond. Concerning defendant Joblinski, the Michigan Supreme Court, considering eight cases consolidated on appeal involving uninsured motorists, Bradley v Mid-Century Ins Co, 409 Mich 1, 62; 294 NW2d 141 (1980), held that "[i]f a motorist is uninsured he may be sued for all economic loss as well as above-threshold non-economic loss”. MCL 500.3135; MSA 24.13135. Since the requested instruction pertained to economic losses suffered by plaintiffs, it was error to refuse to give it as to defendant Joblinski. The instruction also should have been given with respect to defendant Road Commission, since its liability did not arise from the ownership, maintenance, or use of a vehicle under the no-fault act, MCL 500.3105; MSA 24.13105. See Liberty Mutual Ins Co v Allied Truck Equipment Co, 103 Mich App 33; 302 NW2d 588 (1981), Ricciuti v Detroit Automobile Inter-Ins Exchange, 101 Mich App 683; 300 NW2d 681 (1980). Rather, defendant Road Commission’s liability stems from MCL 691.1402; MSA 3.996(102), providing as follows: "Each governmental agency having jurisdiction over any highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. Any person sustaining bodily injury or damage to his property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel, may recover the damages suffered by him from such governmental agency. The liability, procedure and remedy as to county roads under the jurisdiction of a county road commission shall be as provided in section 21, chapter 4 of Act No. 283 of the Public Acts of 1909, as amended, being section 224.21 of the Compiled Laws of 1948. The duty of the state and the county road commissions to repair and maintain highways, and the liability therefor, shall extend only to the improved portion of the highway designed for vehicular travel and shall not include sidewalks, crosswalks or any other installation outside of the improved portion of the highway designed for vehicular travel. No action shall be brought against the state under this section except for injury or loss suffered on or after July 1, 1965. Any judgment against the state based on a claim arising under this section from acts or commissions of the state highway department shall be payable only from restricted funds appropriated to the state highway department or funds provided by its insurer.” Therefore, the Road Commission was also liable to plaintiff for economic loss and the trial judge should have given plaintiffs requested instructions on medical and funeral expenses. Finally, plaintiff argues that the trial judge erred in giving the following instruction on the duty of care of plaintiff Doreen Edwards Dwyer: "Now I would further instruct you, ladies and gentlemen, that ordinary care, that is, the care to be used by a reasonable person, does not require a driver to slacken speed or to have the car under such control to stop at once and avoid accidents with persons who may illegally come into their path. Ordinary care, however, does require a driver to keep such look-out ahead and to the sides and down intersecting roads, as a reason able, prudent person would do in order to discover possible dangers and he must act carefully upon the existing conditions.” Plaintiff Dwyer’s requested instruction on this question stated, in pertinent part: "In this case plaintiffs have represented testimony that plaintiff, Doreen Dwyer, was driving south on Bunton Road when she approached the intersection of Martz Road which was known to her to be controlled by a 'yield sign’, the exercise of ordinary care on her part does not require her to slacken her speed or to have her car under such control that she may stop at once and avoid collisions with persons who may illegally come into her path. Ordinary care, however, does require her to keep such lookout ahead and to the sides and down intersecting roads as a reasonably prudent person would do in order to discover possible danger and must act carefully upon the existing conditions.” Plaintiff Dwyer’s attorney made the following objection to the instruction as given: "I also feel that the court did not specifically state that the duty of the plaintiff on a through highway was to be as stated by the court, but it did not refer to the fact that this was the duty of a person who knows they are on a through highway and that the side streets are being controlled by yield signs, and the way the court gave the duty, it could apply to any of the parties in this case, and that is not the case in this instance. There is only one party that is entitled to that instruction, and it is the plaintiffs, who were on a through highway.” On appeal, plaintiff Dwyer argues that failure to indicate how this instruction might be applied in the instant case prejudiced the rights of plaintiff-driver. While the objection made was not a model of clarity, it was sufficiently specific to preserve this instructional issue for review under GCR 1963, 516.2. By failing to discuss the requisite duty of care for a driver proceeding on a through street and a driver’s right to rely on a presumption that another driver, approaching a yield sign, will yield to oncoming traffic, the instructions placed an unfair burden on plaintiff Dwyer. See Placek v Sterling Heights, supra, 669; Buchholtz v Deitel, 59 Mich App 349, 352; 229 NW2d 448 (1975). While a favored driver is, in fact, required to exercise reasonable care including being alert to potential dangers, Placek, supra, 672, the jury lacked the benefit of the presumption regarding yield signs when it was deliberating. This was error that mandates a new trial. Placek, supra. Reversed and remanded for a new trial. Edwards v Joblinski, Court of Appeals order of May 4, 1979, Docket No. 44879, lv den 407 Mich 867 (1979).
[ -46, 64, 20, -53, -13, -56, 28, -25, -25, 41, -42, -29, 37, 7, 0, -52, 36, 0, 8, -6, -42, -31, 2, -17, -2, -15, 40, -59, -3, -6, -13, -9, -6, 34, -7, 15, 7, -6, 13, 60, 18, -24, -54, -6, 9, -29, 44, -8, 24, 16, -46, 26, -40, -36, -1, 23, 79, -12, -21, -16, -23, -25, 29, 20, 20, -23, 14, 2, 23, -14, -30, 43, -28, 6, -7, -10, -6, 31, -31, 38, -22, -3, 49, 31, -4, -22, -49, 9, -9, 11, -7, -16, -26, 0, 12, 17, -32, -67, -8, -33, -9, 48, 49, -14, -37, 50, 0, -43, -14, -9, 4, 2, 26, 16, 9, -13, 13, 6, 51, 50, 12, 0, 13, 7, 18, -8, -15, 22, -43, -30, 52, 0, 24, 10, -2, 45, -28, -23, -22, 23, 10, 59, -3, 25, -29, 29, -20, -18, -16, -40, -27, 35, -1, -41, 6, -40, 26, -22, 24, -3, 30, 1, 28, 19, -17, -41, 0, 36, 0, -14, 33, -5, 18, -27, 29, 26, 30, -6, -14, -6, -32, -19, -10, 2, -72, -40, 31, -21, -16, -16, 37, -28, -24, -54, 25, 23, 9, 15, 5, 32, -3, -45, 14, -28, -39, 5, 14, -10, 5, -4, 3, -16, -6, 10, 3, 25, 50, -22, 22, -29, -2, 66, 50, -46, -54, 31, -12, -68, -28, -6, 36, -24, -4, 26, -51, -9, 21, -32, 25, -17, -21, -16, 39, -10, 15, 18, -60, 3, -13, 11, 11, -1, -19, -63, 3, -28, 24, 26, -53, 35, 38, 24, 23, 19, 7, 15, 8, 20, -54, -91, 10, 16, 30, -47, -43, -16, 54, -8, 27, 18, 27, -19, -53, -24, 0, 41, -63, 16, -48, -4, -17, -10, -9, -16, -18, 2, 50, -58, -31, 37, 8, -47, -1, 6, 7, -25, -25, -46, 26, 59, 3, -82, 30, -15, 8, 65, -40, 29, 42, 27, 0, 49, -5, -50, -25, 49, -37, -31, 1, 11, -8, 6, 33, 9, 50, -24, 8, 21, -2, 3, 20, 3, -5, 35, 3, 25, 19, 52, -20, -11, 0, -16, 36, -29, -13, -23, 35, -21, -56, 22, 20, -8, -27, 16, 9, -17, 14, -25, -58, 24, -18, 23, 17, 21, -30, -56, 28, 12, 31, 16, 18, -4, 2, -44, -24, 30, 17, -21, -26, 35, 1, -19, -3, -3, -12, -31, 8, 27, -51, 2, -47, 30, -16, 12, -20, 5, -3, 8, 0, -41, -59, -18, 54, 17, 19, 19, 42, -45, -58, -39, -11, 34, -16, -50, 30, -30, 31, 19, 45, 48, 18, 18, 56, -3, 27, 23, -18, -3, -5, -20, -16, 25, -22, -28, -42, 2, -24, -6, 10, -28, 59, 3, 23, 9, -5, 24, 29, 23, -11, -9, -35, -47, -27, -37, 47, -22, -12, 23, 15, -55, -14, 17, -19, 4, 6, 11, -10, 9, 14, -1, 5, -33, -68, -2, 11, -27, -5, 1, -26, -28, 40, 12, -25, -4, 1, -3, -11, 50, 1, -15, -65, -21, -58, 7, -12, -26, 2, 16, -37, -29, -24, 22, 31, 27, -58, 23, -7, 23, 37, 15, -8, -21, -24, 15, 2, 18, -7, -33, -29, 17, -2, 8, 27, -17, 23, -14, -23, -24, -41, -13, 42, 40, -24, -12, -6, -25, -1, -6, 68, 14, 50, 0, -20, -25, -8, 25, 30, -18, 1, -25, 23, -12, 30, 29, 38, -11, 18, -9, 56, -25, -8, 18, 34, -67, 31, 44, -18, -10, -58, 24, 15, 11, -37, 37, -14, -27, 36, -18, -30, -23, -26, 15, -26, 20, 29, -9, 55, 25, -15, -77, 38, 13, -14, 59, 19, -16, -9, -13, 2, -46, 16, -3, -15, 26, -51, -13, 17, -45, -24, -33, 17, 41, 23, 16, -34, 65, 16, 21, -38, 0, -44, 43, -59, -22, -16, -4, 1, 22, -27, -25, -13, 14, 21, -14, 13, -71, -21, -12, -40, -6, -13, 40, 14, -37, -17, 4, 3, 14, -41, 10, 17, 11, -17, -7, -85, 8, 5, -9, 55, 13, -9, 24, -11, 4, -9, -7, 9, 13, 15, 19, 38, -45, 12, -40, 27, -26, 24, 37, 47, -29, -52, 65, -38, -27, -53, -29, 12, 2, -33, 7, -7, 67, -8, 43, -23, 33, 22, -16, 7, 50, -23, 54, 16, 21, 2, 28, 43, -18, -51, -14, -22, -28, -53, -19, 35, -46, 29, -32, 13, 89, 22, 46, 10, 20, 31, -31, 31, -8, -29, -19, -9, -3, -19, -17, -27, -19, -19, -19, 4, -6, -40, 42, -3, 0, -11, -27, 41, 2, 3, -30, 11, -20, 52, 25, -12, -25, -8, -3, 21, -2, -39, 40, -16, -67, -45, 7, -20, -59, -12, -25, -25, 13, 14, 16, 15, 4, -10, 7, -13, -1, 11, 12, 9, 17, 5, -30, -16, 40, 60, 17, 2, 50, -1, 27, -2, -3, -7, 19, 27, 69, 13, 55, -7, 13, 41, 0, 13, 32, -51, 0, 21, -19, -11, -1, 10, 7, 56, 22, 27, 24, 18, 31, -29, -3, -38, 40, 85, 12, -23, -34, 28, -25, -34, 5, -63, 5, -5, 23, -6, 41, 9, -20, -5, -42, -14, -6, -38, 15, -32, 19, 26, -37, -33, 5, -22, 33, 26, -32, -63, 39, 6, 18, -43, 69, -4, 14, -31, -37, 23, -28, 4, -18, 22, 13, -16, -47, 8, 19, -16, 2, -28, 67, -12, -43, -43, -6, -44, 62, -2, -37, -4, 59, -31, 4, 14, -43, 3, 5, -18, 17, -32, 0, 17, -1, -19, -18, -80, 16, -25, -13, 37, 31, -12, -3, -3, 14, -40, -24, -42, 29, -16, -52, 1, -15, 11, -9, 1, -62, -13, -29, 45, -2, -60, 36, 34, -47, 15, 22, -66, 21, 49, -11, -6, 26, 22, 11, -36, 20, 13, 56, 10, 52, 34, 4, 26, -14, 18, 20, 12, 59, -10, 26, -40, -36, 10, -44, 49, -3, -18, -23, -9, -8, 4, 37, -19, -26, 29, -13, -47, 20, -16, 26, 31, 4, 18, 15, -20, -3, 13, -1, 45, 3, -11, 19, 29, 28, 49, 28, 14, 43, -23, 44, 0, -44, 49, 32, 0, -36, -16, 29, -27, -35, 40, -3 ]
R. B. Burns, P.J. The background for the present case is set forth in In re Butterñeld Estate, 100 Mich App 657; 300 NW2d 359 (1980), as follows. The will of Walter S. Butterfield, who died in 1936, established a trust, most of the income of which was to be paid to his surviving widow and to his six children. In the event of the death of a child of the decedent before termination of the trust, the income from the child’s share was to be paid to the issue of such child. The trust is to continue until the death of the decedent’s widow and all of his children, at which time the remaining trust property will be divided equally among all of the decedent’s grandchildren who are then living. Since the corpus of the trust consists solely of 100% of the stock of the Bijou Theatrical Enterprise Company, the income of the trust is derived entirely from the dividends declared and paid by Bijou, plus the interest on the temporary savings account maintained by the trustees. The assets of Bijou consist of real estate and securities. This company derives its income from rental payments on the real estate and the dividend and interest income on the securities. Two of Bijou’s major holdings consist of 75.2% of the outstanding shares of W. S. Butterfield Theatres, Inc. (Butterfield Theatres), and two-thirds of the outstanding shares of Butterfield Michigan Theatres Company (Butter-field Michigan), together referred to as the "operating companies”. The University of Michigan owns the minority interest in each of these two companies. Each of the companies operates motion picture theatres in a number of Michigan communities. In addition, Butterfield Theatres owns all or a portion of the outstanding stock of other theatre corporations. The decedent’s will appointed the Central Trust Company of Lansing, Michigan, and three named individuals as trustees. It also provided that the successor to one of the individual trustees shall be "an experienced, competent man in the theatrical business” and that the successors to the two other individual trustees shall be "competent and experienced lawyers”. During the calendar year 1975, the time period covered by the 37th annual account, the attorney trustees were Richard C. Van Dusen and Richard B. Gushee. The trustee experienced in the theatrical business was Montague F. Gowthorpe, who was president and chief executive officer of Bijou and the two operating companies from 1949 through 1975. He was a trustee of this trust from 1949 until his death on October 9, 1979. The corporate trustee was American Bank and Trust Company of Lansing, Michigan, the successor by merger to Central Trust Company of Lansing. John R. Pettibone, senior vice president and a director of American Bank and Trust, was the officer of the corporate trustee directly responsible for the Butterfield trust. During the period of the 37th annual account, the five directors of Bijou were Gowthorpe, Pettibone, Van Dusen, and Gushee, the trustees of the trust, and Lyle W. Smith, president of Bijou. During the same period, the six directors of Butterfield Theatres were Gowthorpe, Pettibone, and Van Dusen, all trustees, Smith, who was also president of Butterfield Theatres, and Gerald R. Dunn and Paul W. Brown, regents of the University of Michi gan. Also during this time, the six directors of Butterfield Michigan were Gowthorpe, Pettibone and Gushee, all trustees, Smith, who was also president of Butterfield Michigan, and regents Dunn and Brown. Pettibone also served as vice president of Bijou and secretary of all three companies. The objections to the 37th annual account were filed by Jesse W. Page, III, one of the 17 surviving grandchildren of the decedent. He is a remainder-man and, on the death of his mother in 1969, he became an income beneficiary. Page objected to both the form of the accounting and to the investment activities of the trustees. He asked that the probate court disallow the account, order the trustees to file a new account containing additional financial information, order the trustees to cause the distribution of excess accumulations of income; and order the trustees to make an adequate diversification of the trust estate. Page also petitioned for the removal of Gowthorpe as a trustee and for the appointment of a successor. Several of the other beneficiaries of the trust joined in Mr. Page’s objections and petitions. After hearings on the account and the various objections and petitions, the probate court for the County of Calhoun entered an order on July 16, 1979, which allowed the 37th annual account, denied the petition to remove Gowthorpe as a trustee for lack of sufficient grounds, and denied the petition for an order directing the trustees to cause distributions of the earnings of the operating companies accumulated prior to August 4, 1978; however the court ruled that the trustees would have to justify in the future any retention in excess of 25% of the net income of the so-called operating companies. In all other respects, the court overruled the objections to the account. The significance of August 4, 1978, is that it was the date of the court’s opinion which initially ruled on the accounting and the objections and petitions filed by Page. The trustees appealed, claiming that the court did not have the authority to require them to distribute 75% of the accumulated net income to the beneficiaries and in the alternative that if the court did have such authority there was no evidence before the court to allow the conclusion that the retained earnings were excessive. The beneficiaries cross-appealed, claiming that the court erred by not requiring the trustees to file a more detailed account and by not requiring the trustees to distribute excessive retained earnings. Subsequently, the probate court allowed the 38th, 39th and 40th annual accounts and the benficiaries have appealed from the orders allowing those accounts. Those appeals have been consolidated with the appeal regarding the rulings incident to the 37th annual account. See 100 Mich App 657, 671; 300 NW2d 359 (1980). MCL 704.38; MSA 27.3178(289), the applicable law at the time the accounts were filed, stated in part: "Every fiduciary shall file at least once a year, or oftener if the court directs, a compete itemized accounting of all of his doings in the estate, showing in detail all of the receipts and disbursements and the property remaining in his hands, and in what form.” The accounting filed by the trustees complies with the statute regarding the transactions directly involving the trust and Bijou Theatrical Enterprises Company. The beneficiaries object because the accounting fails to show the transactions of the other two corporations in which Bijou Theatrical Enterprises had major holdings, Butterfield Threatres and Butterfield Michigan. However, it is admitted that the financial statements prepared by Price Waterhouse & Company for both corporations have been distributed annually to all beneficiaries. The trial court held that the theatrical business is a highly competitive business and that a more detailed accounting on the public record should not be required. We agree. If the trustees fail to make necessary information available to the beneficiaries the probate court, under MCL 700.814 et seq.; MSA 27.5814 et seq., has the authority to order such performance. The trial judge stated: "The Court concludes that the trustees may have lost sight of the fact that the business exists as a device to carry out the purpose of the trust, rather than the trust existing to carry out the purpose of the business.” (Emphasis in original.) We agree. It is obvious from the record that the trustees who also serve as directors for Bijou, the holding company, and Butterfield Theatres and Butterfield Michigan, the operating companies, have shown more interest in the advancement of the business enterprises than in the interest and well-being of the trust and its beneficiaries. It appears they have lost sight of their fiduciary duties owed to the beneficiaries. While the probate court does not have any power over directors of independent corporations the court does have jurisdiction over "[proceedings concerning the internal affairs of trusts”. MCL 700.21(c); MSA 27.5021(1), MCL 700.805(1); MSA 27.5805(1). Under the circumstances of this case the court had the authority and duty to take positive action. The trial judge was not in error by requiring the trustees to justify the retention of any amount in excess of 25% of the net income of the operating companies. It is evident from the record that the trustees (directors) have retained an excessive amount of income for the advancement of the business, to the detriment of the beneficiaries. Such actions thwart the intention of the testator. It is our opinion that since the trustees have retained excessive earnings in the corporations the 75%' — 25% retention rule should be retroactive to January 1, 1976, the first day of the 38th account, if such a division can be made without jeopardizing the trust. Remanded to the probate court for proceedings consistent with this opinion. No costs, neither party prevailing in full.
[ -44, 7, 8, -67, 58, 37, 75, -5, -3, -3, -39, -3, 49, 27, -22, 21, -27, 7, -66, -18, -56, -21, -55, 24, 14, 34, 34, -31, 34, -46, -4, -45, 13, -11, -25, 19, -58, -36, 15, -35, 16, -8, 54, 23, -9, 13, 17, -47, 28, -26, 1, -2, 29, 4, 32, 70, 28, -9, -23, 10, 33, -50, 27, 8, 26, 12, 38, 30, 7, 18, 28, -51, 15, 46, 22, -4, 9, 7, -17, -17, -3, -29, -8, -22, -29, -56, 22, 3, -5, 38, -9, -3, -1, 21, -68, 9, -22, 0, 0, 56, -21, -27, 1, 20, 19, 0, -14, -8, -26, -14, -21, 4, 4, 0, 35, 24, 12, -9, -67, 23, 34, -22, -14, -64, 78, 46, -30, 86, -4, -4, 38, 5, -83, 26, 59, -50, -14, -17, 0, -46, 32, 31, -21, 11, 46, 1, -34, -25, -15, -1, -34, 13, 22, 15, 73, 24, -7, -12, 44, -16, -3, -49, 28, 29, -36, -19, 68, 13, 32, 38, 6, 19, 4, -98, 15, 32, 57, -56, -41, 25, -19, 17, 8, 0, -60, -67, -8, -44, -42, 48, 7, -13, 6, 33, -41, -2, 14, -15, -25, 9, 43, -45, -12, 27, 14, -14, 67, 17, -26, 65, -17, 77, -5, -16, -30, 18, -38, 23, 35, -22, 50, 10, -1, 23, -35, -6, -33, -54, 0, -4, 8, 11, -24, -17, -12, -15, -62, -3, -48, -24, 39, -64, -20, -6, -30, -39, 5, -17, 18, 25, -26, 16, -26, 31, 8, -41, -58, 40, 20, -63, 0, 37, -79, 18, 41, -20, -18, 21, -4, -9, 2, -18, 16, -17, -42, -53, -2, -6, 26, -17, 8, -2, -23, 17, 0, -2, 14, 12, -22, 38, 19, 78, 70, -40, 36, 23, 12, 11, 83, 37, -22, 76, 12, 39, 17, 40, -60, -7, -44, -42, -17, -4, 57, -19, 18, -5, 1, 29, -12, -24, 17, -25, -1, 47, -36, 0, 17, -14, 6, 36, -20, -32, -22, 1, -13, -17, 81, -6, 29, 13, 35, 64, 54, -60, 33, 14, -42, -50, 10, 8, -16, 33, 45, 22, -36, 19, 32, 30, 13, 54, 30, -42, 66, -19, 34, -29, -37, -21, 53, -32, 0, 42, -38, 17, 48, 56, 0, 9, 8, 10, -38, 19, 37, 44, -12, -2, -57, -1, -25, -10, -22, 14, -14, 56, -34, 39, 6, -15, -60, -24, -3, 42, -44, -57, 1, -21, 22, -49, -36, -8, 12, 30, 31, -54, 13, -7, 19, -48, -38, 40, 65, -14, 6, 45, -33, -52, -51, 57, -3, -24, -44, 54, 1, -8, 10, -27, 0, 23, -24, -1, 62, -43, 33, 26, -10, 49, 6, -23, 43, 18, 7, 24, 12, 75, -33, 4, 10, 4, -8, 37, 24, -22, 42, 24, -16, -29, 23, 23, 42, 21, -38, 29, -72, -18, -61, -37, -5, -33, 6, 13, 89, 20, 0, 45, 1, 25, 50, -36, 5, -36, 23, -2, 8, 28, 2, 1, -36, -16, 11, -18, 15, -33, 54, -45, 61, 38, -47, -85, -71, -20, 26, -42, 19, 87, 6, 8, 29, -13, 11, 19, 11, 98, -58, 35, -5, -7, 37, 21, 15, 18, 6, -40, 20, -14, 0, -8, 32, 37, -85, -12, -24, 2, 5, 59, -33, -31, 26, 0, -57, 8, -97, -51, -16, 3, 1, 36, 15, -53, 36, -1, -62, 0, 13, -39, 54, -68, -49, -21, 21, 32, 2, -24, -7, 52, -15, -3, 5, -12, -45, -39, 56, -49, 14, -20, 12, 64, 34, -22, -16, 85, 25, 22, -92, 8, 6, 5, 2, -33, 7, 23, -34, 42, 8, -76, -30, -56, -48, -13, 84, -64, -26, -20, 18, 5, 32, 15, 8, -7, 41, -6, -27, 16, 4, -21, 20, 21, 11, -3, 15, 31, 17, -35, -38, 69, -24, 8, 16, -20, -2, -52, -40, -30, -13, 8, -26, -60, -40, -41, 94, 9, -4, 7, 27, 35, -9, -22, 32, -33, 18, -3, 79, 11, -21, 42, -44, 25, -17, 24, 52, 17, 51, 33, -17, 18, -6, 58, -49, 8, -1, 43, -26, 50, -33, 88, 50, 10, 31, -18, 15, -20, -26, 24, -23, -14, 23, -28, 48, 19, 22, -11, 6, -30, -20, 39, -26, -21, -17, 33, -49, -15, -26, 14, 38, -61, -14, -1, 26, -27, 31, -3, -77, -81, -21, 13, -34, 18, 42, -22, -37, -17, 0, -43, -19, 21, 38, 13, -2, -3, 28, -25, -28, 24, -39, 16, -119, -3, 3, 75, -10, 32, -29, 71, -14, 51, -40, -37, -24, 41, -9, -36, -33, 27, -16, 41, 30, 29, 17, 0, -30, -38, 0, -3, -88, 21, -22, -17, -23, 47, 21, 16, 69, -22, 11, 9, 63, -67, 47, -29, 23, 40, -30, 20, 22, -17, -29, 4, 27, -23, 64, -50, -23, -9, -22, 61, -12, -38, -26, -16, 28, 18, 14, -4, -2, -9, -17, 9, -16, 34, -44, 3, -14, 8, 14, 31, -45, 1, -67, -59, 10, -19, -29, 57, 20, 11, -42, -54, 17, -19, 60, -22, -8, 14, -69, 6, -23, -18, -41, -51, -41, 19, -24, -33, -21, -20, -58, -30, -29, -37, -39, 29, -39, -2, 22, 8, 13, -21, -40, -48, -16, -10, -42, 29, 24, 30, -49, 32, 20, 18, -76, -16, -35, 29, -45, -57, 19, 18, 41, 14, -9, 43, -17, -25, -13, 31, 11, -45, 6, -39, -8, 17, -76, -8, -89, -19, -19, 51, -18, 35, 68, 35, -1, -9, -42, 51, -33, 40, 20, 35, -18, -3, 22, -72, -19, -55, -10, -20, 60, -31, 4, 51, -7, 46, 14, -48, -21, -1, 21, -27, 35, 0, 46, 33, -27, 26, 11, 41, -9, -51, -18, -35, -36, -14, 16, 22, -28, 22, 0, 32, -23, -22, -17, 67, 31, 16, 70, -19, 37, 2, -10, -6, -41, -27, -20, -15, -28, -31, -10, -36, -22, -63, 7, 0, -14, 7, -41, -53, 12, 2, 9, 7, 41, 19, -50, 4, -51, -2, 42, 52, -30, 12, 24, 7, -11, 20, -52, 15, -14, 48, -11, 10, -46, 24, -55, 61, -23, -8, 11, -17, 38, -31, 7, 3, 37, 13 ]
D. E. Holbrook, Jr., J. Defendant was tried by jury and found guilty of delivery of a controlled substance, phencyclidine, contrary to MCLA 335.341(l)(b); MSA 18.1070(41) (l)(b). He was thereafter sentenced to a term of imprisonment for not less than 1-1/2 nor more than 7 years. Defendant appeals as of right. By complaint dated August 24, 1973, defendant was charged with the March 6, 1973, delivery of a controlled substance to one Larry Stockemer, an undercover police officer. Prior to trial defendant filed a motion to dismiss claiming that the 5-1/2 month delay between the date of commission of the alleged offense and the date of arrest constituted a denial of due process of law in that prejudice resulted because of defendant’s inability to recall what he did on the date of the alleged offense. Following a hearing thereon, defendant’s motion was denied. On appeal defendant contends that the delay of 5-1/2 months between the date of the alleged delivery of the controlled substance to the undercover agent and the time of defendant’s arrest precluded defendant from preparing a defense due to his inability to remember and hence denied defendant due process of law. Review of the trial transcript fails to reveal that defendant renewed his motion to dismiss. Hence, in reviewing this issue we are confined to the transcript of defendant’s pretrial motion to dismiss and the court’s findings relating thereto. Following the hearing on defendant’s motion to dismiss, the trial court, in denying same, stated in pertinent part as follows: "It appears that the delay in prosecution resulted from the prosecutor’s desire not to reveal the identity of an undercover agent who was engaged in obtaining evidence in several other cases in the interim. "There is no showing of prejudice except the statement by counsel that the defendant’s memory of the events of March 6, 1973 are lost by reason of the delay. "This allegation can be made in every case. It falls short of the required showing to raise a due process issue. People v Hernandez, 15 Mich App 141 (1968). "The motion to dismiss is denied.” As can be noted from the above, the court found no showing of prejudice except the statement by counsel that the defendant’s memory of the events of March 6, 1973, were lost by reason of delay. This finding, by the trial court, is tantamount to a finding of no prejudice at all since statements of counsel are not evidence. Having reviewed the record and findings of the trial judge we find such findings to be supported by the record and not "clearly erroneous”. Hence, we are bound thereby. GCR 1963, 517. Recognizing that different panels of this Court have adopted two diametrically opposed views on this issue, the first being the three-pronged test set forth in People v Hernandez, 15 Mich App 141; 166 NW2d 281 (1968), and reiterated in People v Iaconis, 31 Mich App 703; 188 NW2d 175 (1971), and the second being the "no right to be arrested” test adopted in People v Noble, 18 Mich App 300; 170 NW2d 916 (1969), and again restated in People v Thomas Smith, 30 Mich App 34; 186 NW2d 61 (1971), it is of little consequence which view we follow in this case. . People v Hernandez, supra, requires defendant in the first instance to make out a meritorious showing of prejudice under the facts in the case before the burden is imposed on the people to show that the three criteria delineated therein are present and exist. The trial judge having found no showing of prejudice by the defendant and our review of the record disclosing such findings to be supported by the record and not clearly erroneous, we conclude that if People v Hernandez, supra, is followed, defendant’s contention is without merit. Under the "no right to be arrested” test adopted by a panel of this Court in People v Noble, supra, defendant’s claim is clearly without merit. Lastly, defendant contends that the trial court committed reversible error by denying defendant’s motion for a directed verdict on the grounds that the people failed to establish by competent evidence that the substance allegedly delivered was a controlled substance in that the tests testified to by the people’s expert were not conducted personally by him. We disagree. All tests performed on the substance involved in this case were performed pursuant to the direction of the expert, under his supervision and in his presence. The people’s expert therefore had sufficient personal knowledge to render an expert opinion. The fact that the tests were conducted by another under his direction, supervision and presence only goes to the weight and credibility to be given such opinion. Once admitted, the weight and credibility of the testi mony of an expert witness is for the jury. Witt v Chrysler Corp, 15 Mich App 576; 167 NW2d 100 (1969). We find no error. Affirmed.
[ 33, -7, -18, 68, -12, -1, -29, -27, -29, 72, 2, -11, -22, 48, -3, 16, -14, 24, 62, -15, 23, 5, 46, 30, 14, -44, -25, 19, -28, -8, 20, 9, 19, -81, 15, -2, 52, 7, 44, 28, 9, -22, -12, -15, -49, -48, -57, 17, 16, 7, 48, 3, -14, 8, -45, -12, 43, -56, 13, 11, -22, 14, -14, -33, -23, 10, -62, -7, -12, -52, -50, 1, -6, -13, 30, -33, -8, 2, 66, 4, 43, 17, 17, 3, 2, -14, -45, -42, 16, 20, 5, -56, -25, -38, -18, 5, 39, 4, 37, -26, -10, 13, -25, 4, -5, 14, -1, -6, -39, 5, 45, -22, 0, 6, -19, -40, -6, 26, -16, 20, 20, -12, 50, 53, 20, -1, -9, -7, -9, 4, 13, 4, 58, -18, 22, 47, 26, -12, 4, -38, 1, -34, 16, 15, 37, 32, -15, 27, 47, 23, -39, -13, -52, 35, -12, -13, 39, -44, -28, 17, -2, -6, -7, -44, 14, -41, -75, -31, -13, -33, 10, 29, 22, 30, -11, 11, -5, 23, 21, -16, -28, -34, -16, 14, 14, -24, 0, -2, -7, 9, -10, 18, 4, 56, 48, 12, -42, -1, 26, 3, -3, -23, -20, 25, 3, 60, 26, 30, 64, 13, -13, -60, 36, -58, 62, -51, -10, 15, 20, 37, 7, -21, 24, -22, -4, 12, -5, 10, 11, 17, 25, 44, -65, -14, -18, -41, 22, -27, 37, 30, 31, -8, 10, -35, 3, 11, -10, -7, -78, 8, -23, 3, -16, -4, -12, -12, 2, -10, -14, 4, 8, 44, 4, -33, 12, 23, 33, 48, -1, 10, 10, -2, -2, 28, -14, -28, -51, 11, 41, 35, 47, -3, 10, -2, -37, -48, 47, 25, -26, 12, 31, 13, -71, 14, 5, 47, 25, 69, -48, 35, 15, -28, -52, -41, -51, -31, 27, 23, 6, -1, 25, -57, 39, -11, -64, 35, 0, -15, 0, -56, -37, 14, 7, -32, 29, -13, 5, 0, 20, 16, 3, 26, -25, -29, 0, -3, -27, -3, 4, 50, -70, 8, -22, -15, 19, 68, 24, -26, -9, -19, 21, 23, 32, -29, 12, 1, -77, -81, -4, 3, 16, -46, -44, 33, 60, -14, 17, -37, -27, 23, -37, -29, 0, -27, -48, -10, -2, 11, 15, 1, 6, 0, 53, -2, -22, -22, -17, 29, 91, 29, -2, 28, 8, -32, -11, 8, 12, 45, 24, -10, 5, -14, -6, -21, 25, -40, -15, 71, 4, 29, 5, 41, 2, 28, -30, -23, -6, -14, 25, -13, 24, -4, -33, -36, -1, 13, 13, -2, -5, 0, -5, 39, -8, -50, -13, 84, -3, -38, 31, -4, -3, -53, -24, -5, 18, 8, -42, -24, 12, 25, -2, 8, -6, -14, -38, 33, 42, -4, -6, 7, 7, -57, -47, 39, 21, 26, -41, 1, -18, 14, 24, 1, 11, 9, -59, 42, -10, 42, 16, -19, -10, 2, 20, -54, -9, 2, -13, -61, 11, 22, 44, -43, -36, 43, -24, -33, -8, -27, 2, 29, -4, -18, -2, 39, 46, -22, 41, 3, -27, 11, 8, 30, -10, 12, -6, -8, 22, -24, -17, 36, 50, 26, 51, 1, -70, 0, -7, -53, -26, -50, 64, 0, -18, -41, 21, 34, -56, -1, -24, -1, 7, 31, -10, 31, 6, -20, 22, -42, 14, -18, 9, 32, 13, -33, -49, -23, 39, 23, -24, -45, -17, 1, 52, 9, -15, 0, -14, -38, 44, 56, 5, 13, -4, 31, 29, 50, 5, 32, -3, 12, -5, 31, -1, -50, -4, -29, 2, -14, -16, -23, -2, -21, -4, -38, -12, 16, -49, -52, -8, 22, 46, 28, -14, 21, 16, 22, 25, -15, 3, -42, 50, -27, -36, -21, -60, 0, -38, 17, -37, -1, -54, -11, -38, 46, -27, -18, -19, 6, 2, 17, -9, -17, -30, 0, 20, -3, -18, 6, -46, -37, -12, 8, 21, 10, -24, -1, -2, -21, 12, -8, -29, 39, -4, -9, 0, -19, -39, -46, 13, 16, -16, -1, -49, -57, 45, 2, 12, -69, -9, 23, -48, -17, -31, 0, 17, -65, -15, -20, 17, 10, -39, -24, 39, -61, -9, 56, -60, 21, 10, 14, -13, -48, 15, 11, -1, -12, -36, -19, 57, 13, 0, 34, -23, -5, -15, 26, 44, 5, -17, 34, -24, 23, -15, -34, 16, -11, 17, -8, -15, 0, 19, -14, 9, 46, 1, 34, 10, -8, 49, -73, 10, 38, -12, 32, 13, -16, 4, -3, -8, -6, 23, 2, -6, -54, 14, 1, 3, 15, 10, 9, 13, -46, 8, 33, -17, 56, 34, -11, -33, -10, 9, 14, -22, -73, -27, 43, 19, 4, 54, 25, -39, -49, 28, -2, -56, 24, -25, 7, 13, 9, -10, 34, -54, 14, 59, 2, 30, 21, -8, -13, 28, -85, -41, 18, 20, 31, 14, 1, -46, 14, 40, -23, 67, -27, -28, 27, -7, -42, 19, -14, 11, -2, 18, -23, -19, -48, -22, -2, 44, -16, -6, 13, -1, 0, -10, -8, -23, -77, 0, -32, 20, 17, 57, 35, -32, -6, 36, -15, 30, 28, -9, -26, -26, -22, 49, 4, -20, -34, 19, 17, 4, -16, -27, 6, -24, 26, -5, 3, 0, 18, 29, -5, -3, -55, -16, -9, -4, -33, 62, -28, 12, -46, 28, 68, -28, 33, -7, 19, 9, 19, -16, -4, 44, 49, 41, -81, -57, -65, 11, -8, -32, 50, -19, -11, -13, 35, 51, 24, -8, 3, 30, -20, -6, 12, 37, -32, 20, 0, -34, -27, -31, 0, 31, -32, 23, -27, -27, 0, 37, -35, -19, 28, 20, 7, -1, -17, 5, 67, 17, 19, 27, 0, -1, -27, 38, 11, 9, -16, 18, 16, -30, -35, -44, 19, -5, 35, -25, 0, 15, 46, -17, -28, -19, 33, 20, 25, 14, 9, 49, -34, -3, 23, -28, 3, 26, 21, -6, 21, -48, 46, 46, -34, -31, -30, 18, -39, -7, -8, -33, 17, -58, 3, -4, -35, 49, 13, 61, 74, -1, -17, 8, 9, -51, 42, -5, 16, -11, -63, 0, 29, 0, 5, 4, 17, 66, -26, 51, -10, -9, 25, -7, -16, -21, 2, -32, 43, -17, -20, -40, 26, -20, 28, -16, 26 ]
D. F. Walsh, J. This is an appeal, by leave granted, from an order of the Wayne County Circuit Court affirming the common pleas court’s dismissal of the plaintiff’s cause of action for lack of progress and denying the plaintiff’s motion to reinstate the case. A complaint alleging breach of contract was filed in Common Pleas Court of Detroit on June 28, 1972, against Davis & Randall, Inc., and two of its agents. Summonses were issued for all defendants on the same day and were returnable on or before September 25, 1972. On October 4 the summonses issued for the two agents were filed with the court "not served”. Defendant Davis & Randall, Inc., was served with a copy of the summons on July 7, 1972. On August 4, 1972, the defendant filed a "Special Appearance and Motion for Dismissal” which was denied without prejudice on August 11. On the same date, August 11, 1972, the record shows that the defendant filed with the court a "Written Entry of Appearance” and interrogatories. The next entry on the docket sheet was made on October 11, 1972: "Dismissed without prejudice no progress.” The plaintiff claims that he received no notice of the dismissal and indeed nowhere in the lower court record or file does there appear any evidence that such notice was in fact received. On October 4, 1973, the plaintiff filed a motion to set aside the dismissal. On October 11, 1973, motion was denied. The order denying this motion stated: “Court is without jurisdiction to grant relief requested, inasmuch as more than six months have elapsed. Common Pleas Court Rule 16, Sec. 4.” The court rule cited by the lower court precludes the reinstatement of a case where six months has elapsed since the date of dismissal. A subsequent motion for rehearing was denied. On appeal to Wayne County Circuit Court the previous orders denying reinstatement and rehearing were affirmed for the same reasons cited by the common pleas court. We granted leave to appeal. The plaintiffs argument is twofold. First, he claims that his case was improperly dismissed. Second, he claims that § 4 of the court rule — which precludes reinstatement of a case which has been dismissed for more than six months — is inapplicable since he received no notice of its dismissal. We are inclined to agree with both contentions. A contract action may be dismissed under § 1 of Common Pleas Court Rule 16 for two different reasons: 1. "[W]here no progress has been made within twenty-nine (29) days from the time of service of the writ of summons upon defendant”; or 2. "[Where] no progress has been made within fifteen (15) days after the return day of the last unserved writ.” Dismissal of the action as to defendant Davis & Randall, Inc., for either of these two reasons was improper. First, there is no question that progress had in fact been made within the 29 days following the date of service of the writ of summons on Davis & Randall, Inc. Second, in an action involving multiple defendants the fact that one defendant remains unserved on the return day of the summons and no progress has been made within 15 days after the return date on that summons cannot be grounds for dismissal of the action as to other defendants who have been properly and effectively served and as to whom progress has been made within the 29 days following service on those defendants. A plaintiff certainly has the right to abandon an action against one or more of several defendants without losing his cause of action as to the remaining defendants. We are persuaded that the provision of the rule requiring dismissal for no progress within 15 days after the return day of the last unserved writ applies rather to the situation in which there has been one or more unserved summonses as to any defendant and the plaintiff has failed to request an alias summons within the 15 days following the return date of the last unserved summons. See Common Pleas Court Rule 7, § 4. In such case the action is properly dismissed for no progress as to the unserved defendant but not as to any other defendant against whom the plaintiff may still have a viable cause of action. We find therefore that dismissal of this case for no progress was erroneous as to defendant Davis & Randall, Inc. We must consider, however, whether reinstatement of the case is barred notwithstanding the impropriety of the dismissal because of the provisions of § 4 of Common Pleas Court Rule 16 which precludes reinstatement of an action after six months from the date of dismissal. Rosen v Wayne Circuit Judge, 244 Mich 397; 221 NW 276 (1928), reaffirmed the principle articulated in Turner v Ottawa Circuit Judge, 123 Mich 617; 82 NW 247 (1900), that when a default judgment has been irregularly entered, it is within the discretion of the trial judge to reinstate the case— despite the mandatory provision of a local court rule to the contrary. And, both the Supreme Court and this court have noted — albeit in dicta — that where, as in the instant case, a party has received no notice prior to dismissal of a lawsuit, reinstatement of the case is a matter of right and not discretionary with the court. See Sezor v Proctor and Gamble Soap Co, 267 Mich 128, 130; 255 NW 175 (1934), Flack v Waite, 18 Mich App 339, 340; 170 NW2d 922 (1969). Since dismissal in the instant case was improperly entered, and since the plaintiff received insufficient notice thereof, reinstatement was not barred by the operation of § 4 of Common Pleas Court Rule 16 and reinstatement should have been granted as a matter of right. Reversed and remanded for proceedings consistent with this opinion. The common pleas court docket sheet shows that this entry was made on "10-4”. But since the same entry shows that a hearing was set for "8-11-72” and since the next entry is "8-11” the date of defendant’s appearance and motion to dismiss must have been incorrectly recorded.
[ -73, -29, 16, 22, 33, 16, 9, -41, -37, 68, -19, 14, 0, -25, 2, -23, 18, 16, -27, -22, -25, 44, 83, -7, -8, -31, -30, -23, 1, -6, -20, -12, -28, 19, -18, -9, 24, 3, 31, 0, -21, -2, 12, 16, -18, -13, 17, 40, 22, -11, 26, 27, -70, -1, -35, -19, -12, -26, 31, -1, -9, 31, 12, 16, -39, 1, -20, 4, 29, -26, -9, 10, 42, 23, 12, -43, -7, -7, 40, 11, 74, 0, 46, -28, 4, -12, 46, -7, -10, 39, -19, 26, -55, -11, 24, 32, 19, -23, 8, -40, -3, 77, -31, -26, 10, -7, 50, -17, -51, -9, 44, -10, 14, -1, 20, 11, 53, -37, 38, -4, 43, 23, -7, 16, 13, 11, 21, -27, 9, 27, -4, 18, 21, -19, -2, -7, 24, 9, -12, -16, 13, -8, -14, -44, 11, 28, -13, 11, -35, -9, -9, 5, 2, 44, -8, 30, 65, -35, -6, 9, 44, 13, -8, -38, -13, 5, -39, -15, 36, 31, 0, -12, 4, 2, -39, -14, -7, 55, -8, 31, 0, -7, -49, -41, 46, -12, 35, -13, -30, 15, 8, -25, 6, 40, 4, 11, 21, 44, 36, -11, -41, -18, -19, 21, -16, 16, 74, -4, -4, 38, -41, -25, 11, -54, 28, -10, 15, -14, -5, 16, 38, -12, 20, -20, -52, 4, -3, 14, 34, 15, -19, 44, -75, 20, -5, -28, 11, 8, 24, 32, -16, 14, 27, 19, -17, -4, -59, -20, 14, 16, 9, -21, 23, -30, -43, -61, -4, 11, -18, 21, -13, 66, -31, -59, 12, -12, 0, 19, 33, 13, -9, -18, 33, -19, 6, -40, -14, 25, 66, 27, -67, -32, -23, 3, 8, 39, 2, -16, 26, 45, -13, -1, -34, 58, 5, 3, 56, 1, -13, 14, -41, -13, -30, -47, -19, -15, -74, -23, 37, 8, -24, -12, 43, -59, -8, 4, 5, -38, 29, -87, 14, 40, 22, -26, 3, -35, 4, 24, -3, -34, -12, 7, -6, 3, -40, -4, 47, -10, 33, 49, -8, 13, -30, -10, -14, -14, 26, -77, 55, 64, 8, -33, 3, 17, 23, 27, -10, -46, -55, 30, 10, -48, -63, -12, 24, 34, -22, 24, 0, 30, -35, 21, 10, 13, -36, -15, -12, -58, 14, 19, 8, -66, 13, 5, 22, -3, 1, 0, 14, 34, -14, -16, 16, -20, -28, 6, 22, 27, -9, 38, -31, -30, -53, 48, -21, 25, -30, 14, -27, 35, -11, 6, 28, 67, -36, 0, 42, -3, 20, 17, 12, 44, 0, -38, -27, -9, 49, 2, 15, 10, -10, 46, 8, -58, 16, 65, -22, -47, -29, 7, -25, -16, -43, -18, 0, -1, -28, 17, 17, 8, -9, 23, 22, 14, -9, 32, -20, 21, 23, 2, 58, -97, -51, 6, -27, 13, -1, 13, -1, 12, -16, 13, 21, -20, -54, -33, -9, -11, 2, 2, 33, 46, 19, -13, -16, 25, 19, -42, 17, 18, -15, -39, -18, 44, -18, 18, 0, -25, -25, -20, -25, -16, 20, 10, 13, 22, 2, -43, -25, 16, 20, 34, -5, 36, 20, 24, 12, 67, 65, -33, 1, -17, -12, 0, 2, 15, -37, 2, 26, 7, 45, 37, 16, -61, -6, 46, -43, 8, -1, 41, -7, 70, -36, -18, 27, -19, -40, -10, 16, 0, 18, -39, -36, -13, -26, -31, -14, -5, 46, -11, 20, -10, 68, 6, 21, -1, -25, -8, 19, 49, -1, 55, 36, -14, 35, 39, -9, -21, -31, -24, -69, 21, -18, -30, -11, -29, 22, -9, 25, -14, -48, -45, 10, -66, 10, 6, 5, 0, 92, 11, 19, 16, -24, -4, 31, -29, -10, 31, -17, -8, 6, -25, -66, -38, -2, -17, -28, 50, -8, 38, -10, 9, -23, -1, -24, 5, 55, -12, -25, 13, -5, 21, -9, -2, 7, -5, 51, 3, -2, -13, -28, 30, -5, 3, -19, -29, -28, -25, -7, 5, -17, 31, 0, -9, -13, 23, 36, -18, 21, -36, 17, 0, -7, -1, 33, -35, -2, 23, 16, -36, -37, 28, 26, 15, -5, -30, -10, 7, 2, 41, -10, 18, -18, -4, -44, -16, 0, 8, -26, -14, -33, 25, -38, -17, -55, -15, -13, 11, 31, -18, -4, 16, -19, 43, -35, 21, -14, 1, 28, -33, -52, 12, -9, -41, 34, 25, 6, -6, -19, -9, 14, -32, -3, 0, -25, -2, 5, -16, 5, -37, -15, 41, 5, 19, -51, -5, -22, -19, -57, 6, 45, -32, -7, -19, 2, -7, 35, 33, 13, -25, 10, -38, -59, 52, 14, -14, 36, -41, -86, 8, 11, -32, 18, -25, 24, 3, -29, -26, 38, 4, -29, 17, 36, -20, 19, 23, 28, 23, -14, -30, -43, -4, -1, 38, -23, -41, -10, 10, -25, -11, 21, -98, -34, -36, 28, 18, 29, -18, 8, 0, -16, 0, 21, 25, -9, -21, 0, -20, 48, -3, -15, 28, -1, 22, 28, -25, -23, 26, 17, -20, -24, 33, -18, -2, 2, -47, -42, -3, 18, 2, 2, -24, 39, 40, -45, -6, 37, 29, 20, -6, -41, 2, -19, 25, -12, 17, -34, 24, -21, -13, -27, -1, -82, 5, -1, 39, 11, -38, -17, -19, 22, 52, -11, -54, -5, -1, -39, -99, 27, 16, 20, -8, -27, 54, -9, -18, 4, -21, 3, 8, 17, -14, -7, -22, 39, -34, 21, -34, -18, 10, 57, 13, -4, -2, 3, 23, 16, 21, -16, 0, -8, -33, 42, -4, 21, -30, 0, 1, -13, -3, -11, -14, 15, -8, 14, -10, -25, -38, 57, -8, 18, 14, -1, -80, 19, -43, 26, 51, 12, 22, 13, -3, -26, -1, 24, -56, 28, -44, -9, 28, -13, -23, -6, -27, -15, 0, -34, -7, -22, 20, 23, -50, 17, -3, -27, 37, -12, 16, 42, 11, 42, 11, -16, 4, -14, 13, 18, 0, -38, 0, 11, 8, -7, 0, -18, 12, -18, 22, -3, 15, 2, -20, 0, 1, -1, -4, 30, -9, -36, -40, 43, 53, 23, -14, -21, 34, -12, -24, -32, 56, 22, 44, 28, -1, 49, -2, 37, -1, -18, 47, 11, 25, -4, 20, -11, -12, -49, -36, -31, -19, 68, 15, -2, 24 ]
N. J. Kaufman, J. On January 31, 1974, defendant was convicted of manslaughter, MCLA 750.321; MSA 28.553, by a Kent County Circuit Court jury. She was sentenced to a term of 2 to 15 years and now appeals by right. At trial, the three arresting officers testified that they went to defendant’s house in response to a phone call from an individual who stated that a shooting had taken place there. Arriving at defendant’s house, one of the officers, James Kuipers, went up to the front porch where he saw defend ant standing with a rifle in her hand. He asked her if she had called the police. She responded, "Yes. I called the police. I shot him. I meant to shoot him. He is my daughter’s boyfriend and he has been bothering her”. The defendant then handed Officer Kuipers the rifle, two .22-caliber bullets and one spent cartridge. The officer proceeded to examine the porch for traces of blood or a struggle, but found none. Officer Kuipers then asked the defendant if she thought she had hit the victim. She said, "Yes, I hope so”. Another officer searched the vicinity of the house, and found the victim, John LaGrone, lying dead in the back yard. After the body was discovered, Officer Kuipers informed the defendant that she was under arrest and advised her of her Miranda rights. Three or four minutes later, without further advising the defendant of her Miranda rights, Officer Horlings took an official statement from the defendant. The victim, John LaGrone, had fathered an illegitimate child by defendant’s daughter, Verna. At trial, several witnesses testified that LaGrone had, prior to his death, beaten Verna on several occasions, some of which occurred during her pregnancy. Because of this and other reasons, defendant had months earlier told the victim that he would not be allowed in defendant’s house. It was shown that LaGrone had assaulted defendant’s daughter three days before the alleged murder. Defendant testified that, on the evening of the shooting, she was in the living room when she heard the victim come to the front door and talk to Verna through the screen door. She then went into the kitchen from which she heard her daugh ter and LaGrone begin to argue. When she heard a "noise at the door like a scuffle” and the door slam, defendant went to get a rifle which she kept in a downstairs bedroom. She took the rifle and three shells and went into the living room. At that point, she saw Verna running away from the door and LaGrone standing at the front door. LaGrone had opened the front door, but the inside screen door was still closed. Defendant was pointing the rifle at the front door, and, when LaGrone began to enter the house, she fired it at him. He fell onto the gun barrel and then ran out of the house. Robert Long, Jr., the son of the defendant, and Hunter Sykes, a nephew of the defendant, arrived at the defendant’s home about the time that LaGrone was shot. Long testified at trial that the screen door was open and that LaGrone was partially inside when he heard the shot. Long further testified that, before he heard the shot fired, he heard the victim and the defendant speaking in low voices. Then he heard the gunshot and saw the defendant with the gun. At trial, the prosecutor attempted to impeach the testimony of Robert Long, Jr. by means of a prior inconsistent statement. Defense counsel requested that the trial judge give a cautionary instruction to the jury concerning the purpose for which the impeachment could be used. The trial judge gave an instruction concerning the evidentiary value of the prior inconsistent statement. He also gave an additional instruction concerning the evidentiary value of the prior inconsistent statement in his charge to the jury before jury deliberation. Before trial, a Walker hearing was held on a defense motion to exclude the statements made by the defendant to Officer Kuipers prior to his advising defendant of her Miranda rights. The trial judge heard testimony and denied that motion. At trial, the court granted defendant a directed verdict on the first-degree murder charge. On appeal, defendant raises four claims of error. First, defendant contends that the trial court’s Walker hearing decision to admit the statements made by defendant prior to the giving of her Miranda rights was erroneous. In reviewing a trial court’s Walker hearing decision, this Court is required to examine the record and make an independent determination of the voluntariness of the challenged statements, People v Robinson, 386 Mich 551, 557; 194 NW2d 709 (1972), People v Summers, 15 Mich App 346, 348; 166 NW2d 672 (1968). Having done so, we find that the. trial court correctly admitted the challenged statements. An individual must be given the Miranda warnings at that point when the police investigation has passed from the investigatory to the accusatory stage. People v Reed, 393 Mich 342, 357; 224 NW2d 867 (1975), People v Wasson, 31 Mich App 638, 642; 188 NW2d 55 (1971). The crucial factor in determining if the investigation has become accusatory is whether at the time the challenged statements are made, "the investigation has focused on one suspect”. Id. We find that, at the time defendant made the challenged statements, the police were still investigating to determine if a crime had, indeed, been committed. Defendant’s statement that she had shot someone was in response to Officer Kuipers’ asking if she had called the police. This was a volunteered statement prior to accusation, not within the Miranda rule, People v Walsh, 27 Mich App 100, 105; 183 NW2d 360 (1970). When defendant stated that she hoped she had hit the individual, Officer Kuipers was still attempting to determine if such a shooting had occurred. He had not found any blood or signs of a struggle to verify such a crime, and LaGrone’s body had not yet been found. The officer’s question was prompted by defendant’s own volunteered statement and was properly deemed admissible, People v Leffew, 58 Mich App 533, 536; 228 NW2d 449 (1975). Second, defendant contends that the district court judge abused his discretion in binding her over for trial on an open charge of murder. Defendant argues that the district court judge erroneously found that there was probable cause that the murder was premeditated and, thus, that defendant could be charged with murder in the first degree. A magistrate’s determination of probable cause will not be upset on appeal except in a case of a clear abuse of discretion. People v Paille#2, 383 Mich 621, 627; 178 NW2d 465 (1970), People v Stinson, 58 Mich App 243, 259; 227 NW2d 303 (1975). To constitute murder in the first degree, the killing must have been "deliberate and premeditated”, MCLA 750.316; MSA 28.548, that is, characterized by: " * * * a thought process undisturbed by hot blood. While the minimum time necessary to exercise this process is incapable of exact determination, the interval between initial thought and ultimate action should be long enough to afford a reasonable man time to subject the nature of his response to a 'second look’.” People v Morrin, 31 Mich App 301, 329-330; 187 NW2d 434 (1971), lv den 385 Mich 775 (1971). See also People v Vail, 393 Mich 460; 227 NW2d 535 (1975). In making a probable cause showing before the magistrate, proof of the corpus delicti of first-degree murder must be demonstrated aliunde a defendant’s confession, and the confession is inadmissible until the corpus delicti is shown, People v Allen, 390 Mich 383; 212 NW2d 21 (1973), adopting dissent by Levin, J. in People v Allen, 39 Mich App 483; 197 NW2d 874 (1972). Cf. People v Sparks, 53 Mich App 452; 220 NW2d 153 (1974). This rule applies to preliminary examinations. People v Asta, 337 Mich 590; 60 NW2d 472 (1953), People v Randall, 42 Mich App 187; 201 NW2d 292 (1972). The corpus delicti is established when: " * * *the people have introduced evidence from which the trier of fact may reasonably find that acts constituting all the essential elements of the offense have been committed and that someone’s criminality was responsible for the commission of those acts.” (Emphasis in original.) People v Allen, 39 Mich App 483, 496; 197 NW2d 874 (1972). Cf. People v Meyer, 46 Mich App 357; 208 NW2d 230 (1973). This Court has held that certain types of nonconfession statements, while classified as admissions, may be used to establish the corpus delicti: a statement itself an element of the offense, an excited utterance, a statement made before the crime’s commission, a statement made contemporaneously with the crime. People v Randall, 42 Mich App 187, 191; 201 NW2d 292 (1972). See also People v Meyer, supra. We find that the record before the magistrate provided probable cause for a binding over on first-degree murder. The malice necessary for common law, second-degree, murder may be presumed from the use of a deadly weapon to perpetrate the killing, People v Collins, 166 Mich 4; 131 NW 78 (1911), People v Wright, 25 Mich App 499; 181 NW2d 649 (1970), lv den 384 Mich 804 (1971). A number of factors exist from which the additional element required for first-degree murder, premeditation, may be inferred. While the use of a lethal weapon may not, by itself, show premeditation, it may support such an inference, People v Wolf, 95 Mich 625, 629; 55 NW 357 (1893), People v Hoffmeister, 394 Mich 155; 230 NW2d 270 (1975), People v Sparks, 53 Mich App 452, 456; 220 NW2d 153 (1974). The fact that defendant and LaGrone had a past history of strife tends to establish a motive, People v Wolf, supra, People v Morrin, supra, at 331. The statements made to Officer Kuipers prior to the Miranda warnings provide further evidence of intent. When asked if she had shot the victim, defendant replied "I hope so”. Because this statement was sufficiently contemporaneous with the shooting and was made before defendant had time to reflect or fabricate, Rice v Jackson, 1 Mich App 105, 110-111; 134 NW2d 366 (1965), it was admissible to establish the corpus delicti. People v Randall, supra. In addition, the preliminary examination testimony showed that sufficient time existed for defendant to have formed a deliberate intent to murder LaGrone. About five minutes elapsed from the time the victim came to the front door to the time defendant shot him. During that time, defendant went from the living room to the kitchen and then to a bedroom to get her gun before returning to confront the victim. Defendant’s intent could have been formed during this time. Having found probable cause for binding defendant over on a first-degree murder charge, we similarly must reject defendant’s third claim of error, that the trial judge erroneously refused to direct a verdict on the second-degree murder charge. Viewed in the light most favorable to the prosecution, People v Vail, supra, the evidence presented at trial would clearly have justified a reasonable man in concluding that all the elements of second-degree murder were established beyond a reasonable doubt, People v Hood, 37 Mich App 195, 197; 194 NW2d 472 (1971). There was an unlawful killing. The statements made to Officer Kuipers, combined with the use of a lethal weapon at close range, are probative of the presence of malice aforethought, People v Hoffmeister, supra, and of the absence of justification, excuse or recognized mitigation. People v Ray, 56 Mich App 610; 224 NW2d 735 (1974). We find defendant’s fourth claim of error, that the trial court gave an erroneous cautionary instruction concerning impeachment testimony to the jury, to be without merit. We find that any conceivable difficulty which may have resulted from this instruction was cured by a later instruction given at the close of trial, before jury deliberation. Affirmed. Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965). A panel of this Court in Sparks held that the Allen corpus delicti rule applies only to felony-murder cases. We disagree. Allen dealt with both elements which may distinguish first from second-degree murder: an underlying felony and premeditation. 39 Mich App at 501-502. Levin, J., stated in Allen at 503: "Just as the people must establish with evidence the essential element distinguishing second-degree murder from first-degree murder in order to convict an accused person of the aggravated offense, so, too, in order to prove the corpus delicti, that distinguishing element must be established by evidence independent of the accused person’s confession.” (Footnote omitted.) It would appear that Meyer mistakenly cited People v Allen for the definition of corpus delicti which Allen, in the quoted portion, rejects: "(1) [T]he existence of a dead body and (2) evidence of an unnatural cause of death.” 46 Mich App 357, 363. Allen requires evidence of each element of the crime.
[ 33, 3, 1, 47, -46, -47, -81, 39, 10, 0, -17, -7, -9, 3, 37, 26, -15, -4, -29, -15, -11, -26, 2, 55, -1, -19, 13, -17, -21, 21, 15, -8, 28, -60, 38, -40, 27, 47, -3, 48, 28, 11, 20, 4, -13, -2, 8, 14, -13, 27, 13, -6, 6, -16, 16, -7, -19, 44, 62, 15, 8, -20, -107, -70, -35, 1, 40, 44, -30, 8, 8, -46, -69, -18, -5, 26, -30, 6, -6, 14, -18, 47, 45, 14, -4, -57, -50, -60, -30, -1, 66, 29, -52, 7, 9, 12, 44, 15, 22, 4, -41, -34, -8, 5, -16, 35, -21, -53, 36, -36, -23, 29, 65, 19, -15, -13, 0, -1, -1, 45, 8, 8, 67, 2, 28, -41, -58, -5, 48, -17, -17, 12, 22, -41, -27, -27, -23, 1, -7, -23, -40, 0, 13, -23, -22, 41, -11, -12, 11, 86, -25, -17, 3, 35, 43, -15, -12, -19, -86, 12, 1, -16, -17, -46, -29, -46, -26, 9, -29, 0, 9, 54, 23, 15, 18, -9, -17, -13, 13, 23, 54, 5, 10, 31, -38, -15, -10, -29, -23, 19, -38, -18, 6, -27, 52, 36, 17, 20, -18, -53, 34, -18, 12, -7, 16, -30, 3, 6, 41, -29, -1, 0, -23, -19, -39, -38, -41, 13, -38, 13, -13, -62, 21, 14, 6, -20, -18, 32, -50, -15, 88, 14, -14, 23, -23, 5, 24, 8, 18, 21, -24, 3, 11, -6, 55, 33, -28, 6, 0, 14, -7, 28, -30, 75, -27, 21, 10, -10, 43, 38, 15, -12, -7, 22, -22, 55, -27, 34, -68, -42, 33, -18, 16, 32, 25, -13, 18, 76, -9, 14, 50, -4, 20, -4, 4, -32, -32, 68, 15, -27, 25, -22, -24, -6, 37, 2, 25, -34, 10, 1, 30, -1, 21, 4, -7, -30, 59, 36, -25, 8, 14, 26, 36, 39, 51, 16, 26, -6, -24, -12, -48, -35, -34, -3, 10, -19, -1, 5, -18, -1, 15, 56, 0, -28, -17, -32, -32, 53, -11, -36, 27, -27, -6, 15, 5, 6, 3, 83, -76, -50, -26, -28, 37, 3, -55, -79, -25, 17, 65, -32, 14, 37, -40, 6, 11, -5, 27, -71, -26, 26, -2, -37, -19, 1, -2, -19, 40, -24, 19, 42, 11, 8, 11, 11, -19, 60, 6, -38, 26, 0, 9, -35, -29, -51, -7, -27, -33, -2, 33, -45, -39, -18, 35, 17, -71, 38, -45, 9, -18, -30, 39, -7, 18, -4, 5, -29, -13, -11, 53, -14, 36, 31, 67, -9, -7, -30, -22, -9, 56, -51, 53, 68, 2, -27, 11, -3, -67, 29, 34, -7, -33, -66, 34, 48, -15, 26, -27, -33, 25, 0, 4, -12, 15, 6, -10, -8, -5, -20, -12, 63, 19, -27, -24, -40, 52, -6, -35, -9, -35, 4, 24, -22, -6, 15, -8, -1, -3, 52, 1, 9, 43, -33, -24, -51, -34, 6, -13, -29, 7, 27, 6, -44, -8, -4, -17, 19, 18, 30, 1, -20, -14, -7, 25, 52, 8, 15, 42, 31, -40, 17, -30, 60, -68, 9, -14, -30, 47, -29, -17, -24, 13, 3, -62, 29, -52, 15, 26, -16, -75, -18, 57, 10, -24, -46, 62, 13, -36, -6, 29, -6, 30, 18, 56, 21, 4, -12, -18, -1, -13, 3, 15, -17, -46, -61, 60, -60, 20, -58, -3, -24, 2, 26, 16, 22, 0, 6, -12, 5, 4, -37, -18, 27, -69, 43, -49, 28, -32, 38, -8, 41, 7, -14, 1, 63, -14, -5, 31, 15, 7, -12, -68, 15, 36, -9, 42, -57, -57, -39, -25, -57, 31, 28, -13, 7, 30, -9, 58, -11, -2, -21, 36, 33, -21, 6, 19, -13, 8, 8, -28, -17, -35, -11, -94, 49, -54, 16, -35, 2, 48, -6, -19, -34, 46, 22, -11, 13, 25, -22, -61, 1, 29, 20, -9, 15, -13, 2, 3, -12, -23, -33, -83, 11, -21, 14, 26, -28, -24, -7, -18, -20, 6, 41, -28, -1, 7, -14, 11, 0, -13, 9, -21, 35, -15, -24, -50, 20, 20, 42, -18, -6, 2, 9, 18, 1, 63, 64, 19, 6, -5, 10, -20, 28, 46, 22, 35, 37, 4, 40, -58, -39, -1, -26, -43, -15, 9, -10, 47, -65, 6, -1, -9, 33, -3, 33, 1, -22, -4, -40, 50, 36, -57, 21, 4, -46, 51, 9, 20, 28, 64, -1, 39, 29, 0, -33, -38, 2, -11, 7, 9, -11, -29, -18, -23, -47, 26, 12, 27, -64, 32, 16, 32, 45, 58, -42, -21, 52, 86, -47, -62, 12, 46, 34, -40, -27, -25, -34, 10, 3, 69, -16, -41, -41, -23, 22, -23, 19, 26, 0, -8, -32, 29, 40, -28, -50, 42, -15, 2, -7, -33, 20, -7, -48, -35, 66, 32, 32, 22, -6, 16, 5, 34, 32, -16, 12, 43, 4, -25, 21, -32, 16, 59, 23, -71, -61, -58, 1, 34, -22, 10, -32, 54, -42, -5, -46, 13, 20, 33, -29, -25, 11, -46, 34, 0, 16, 28, -12, 12, 18, 3, 36, 25, 32, 43, -8, 46, 4, 68, -33, 0, 37, 25, -60, -1, -37, -13, -37, -39, 50, -69, 33, -5, -30, -24, -57, 25, 56, -18, 21, 24, -5, -25, -43, 19, 22, -13, 73, 10, -32, -44, -11, -15, -42, -4, 9, 6, 14, -25, -14, -21, -27, -35, 53, 37, -27, -66, 16, 33, -25, 18, -41, -9, 15, -37, 20, 7, 4, 19, -15, -25, -19, -2, 41, 6, 10, -10, 71, -48, -15, 41, -42, -36, -1, 43, 47, 8, -33, -1, -30, -45, 60, -8, -30, 7, -37, -55, 9, 14, -17, 23, -4, -29, 53, -84, 26, 34, 69, 40, -20, 19, 33, -8, -5, 1, -30, 23, -13, 5, -12, -37, 32, 11, -16, 5, 1, 44, -28, -15, 9, 0, -16, 57, -80, 1, -35, 24, -59, 15, 62, -7, -28, -33, -6, -6, 13, -21, 36, -19, 55, -65, -39, -16, -53, -23, 65, 32, 44, -38, -4, -54, -50, -48, 7, 12, 68, -17, -31, 25, 0, -9, -26, -28, -45, 45, -20, -21, 24, -6, -9, 4, -1, -8, 7, 8, 59 ]
Supplemental Opinion D. E. Holbrook, J. This case has previously been before this Court and the Supreme Court. Goodwin, Inc v Orson E Coe Pontiac, Inc, 43 Mich App 640; 204 NW2d 749 (1973), rev’d 392 Mich 195; 220 NW2d 664 (1974). Upon application for rehearing, the Supreme Court reaffirmed its opinion but vacated its affirmance of the trial court and remanded to this Court for further consideration of other issues previously raised but not discussed. The pertinent facts for background may be found in the opinions of this Court and the Supreme Court. Further facts where relevant will be discussed herein. A number of these issues may be rather sum marily discussed and determined. The standard upon which we approach this case is that of whether the trial court, having sat without a jury, was clearly erroneous. GCR 1963, 517.1. Due to the Supreme Court’s determination, parol or extrinsic evidence was properly admitted. As such, a review of the extensive record does not reveal that the findings of the trial court were against the great weight of the evidence but rather that, at best, the evidence was in dispute and probably militated towards the conclusions of the trial court. The trial court’s ruling as to breach of contract was not clearly erroneous. Plaintiff asserts that defendant Coe failed in his duty to make every reasonable effort to mitigate damages. The trial court found that the defendants had "made every reasonable effort to mitigate damages”. In McCullagh v Goodyear Tire & Rubber Co, 342 Mich 244, 255; 69 NW2d 731, 737 (1955), the Supreme Court stated: "The general rule relative to mitigation of damages is well stated in Rich v Daily Creamery Co, 296 Mich 270, 282 [296 NW 253, 258] 134 ALR 232, 239 [1941], where we said: " 'There is no question but that it is a well-established rule that in case of a breach of contract the injured party must make every reasonable effort to minimize the damages suffered and that it would be the duty of the court upon request so to charge the jury. We hold, however, under the authorities that the burden is upon the defendant to show in mitigation of the damages claimed that the plaintiff has not used every reasonable effort within his power so to minimize his damages. Tradesman Co v Superior Manfg Co, 147 Mich 702 [111 NW 343 (1907)], Flickema v Henry Kraker Co, 252 Mich 406 [233 NW 362] 72 ALR 1046 [1930], Milligan v Haggerty, 296 Mich 62 [295 NW 560 (1941)]. The same rule is applicable in tort actions as in actions for breach of contract.’ ” We cannot say that the trial court was clearly erroneous in finding that defendants-counter-plaintiffs did make every reasonable effort to mitigate damages nor that plaintiff-counter-defendant carried his burden of demonstrating to the trial court’s satisfaction that defendant did not in fact make every reasonable effort to mitigate damages. On appeal, plaintiff has asked this Court to accede to a somewhat unusual, if not incorrect, approach to this problem. One of the major issues in this case related to the 3-acre tract of land. Plaintiff here asserts that defendant Coe could have purchased that additional 3 acres of land himself and that such was, in fact, necessary in order to make every reasonable effort to mitigate damages. With this we do not agree. DAMAGES Somewhat more complex and meritorious questions are presented under the trial court’s award of damages. For purposes of analysis, the issues as presented by plaintiff are as follows: whether counter-plaintiff Coe failed to establish damages to a reasonable degree of certainty to take the recovery out of the reach of speculative or conjectural damages; whether the trial court erred in awarding damages for remodeling of the temporary facility used by Coe; whether the court erred in fixing lost profits for calendar years 1969 and 1970 at a total of $160,000; and whether interest on damages awarded should begin on the date injury is sustained. In its opinion, the trial court wrote: breach involved, or reasonably to have been in contemplation of all parties at the time of contracting as a probable result of the breach. The purpose of damages is to compensate for harm done in an effort to put the injured party in as good position as he would have been put by full performance at the least cost to the party responsible for the damages and without charging that party with losses that he had no sufficient reason to foresee when he made the contract. With those general rules in mind, the court feels that the defendants have, by a preponderance of the proof, shown damages reasonably resulting from the plaintiff’s breach as follows: $20,000 in expenditures reasonably and nonrecoupably spent in making substitute premises suitable for the defendants’ dealership. The court feels that any attempt by it to compare lease values would be pure speculation on the basis of the proofs that it has received. In the area of lost profits, as the court has construed this contract, a facility should have been completed, had the plaintiff not breached sometime in the fall of 1968, but to find lost profits in 1968 and to assume possession of the new facility at any time during the calendar year 1968 would again put the court in the position of pure speculation. This is not the case, however, for the years 1969 and 1970. Keying lost profits into a computation of what has been described in the testimony as 'fixed coverage’ and using what the court has heard in the way of opinion testimony as the national average for 'fixed coverage’, the court finds within the reasonable limits of the proofs that, because of the plaintiff’s breaches, the defendants have lost profits in 1969 of $90,000 and in 1970 to trial of $70,-000. The court, therefore, finds total damages to have been $180,000.” "[0]n the question of damages the court must keep in mind the general rule of law that damages should be those fairly and reasonably arising naturally from the In the automobile industry it appears that certain distinct factors in profit and loss statements are used; for our purposes herein, relevant are: fixed expenditures and fixed coverage. As well as we can understand from the testimony "fixed coverage” refers to the operation of the service and parts departments and the profits therefrom as related to the total expenses of the business in a percentage amount. An employee of Pontiac Motor Division of General Motors Corporation testified that found under the heading of fixed expenditures, inter alia, are salaries, stationery, supplies, advertising considerations and rent. Introduced at trial was a chart prepared by the General Motors Corporation representative including these figures in comparison between the existing Coe dealership and two other dealerships, Front in Toledo, Ohio, and Rinke in Detroit, which for the most part could be said to be similar to Coe’s dealership. (Chart attached as Appendix A.) The General Motors representative testified that the national average of fixed coverage was 54.4% (used by the trial court), that the zone in which the Coe dealership was located had an average of approximately 61%. Thus, it is readily apparent that had the trial court used either determination of the average of the two other dealerships used for comparison purposes in the years of 1969 and 1970 or the zone average, the figure of damages would have been considerably higher. For reasons hereinafter stated we conclude that other factors which were not considered were no more speculative than those underlying the award as made. We note that little fault for this rests with the court but rather with the overly sophisticated and confusing presentation of damages made in this case. Looking at the proofs with a rather jaundiced eye and searching for some sense of the whole rather than the parts, we would assume that, if there were validity to the General Motors’ prepared chart, simple debits-credits figures leading to net income could be determined. Thus, the chart (Appendix A) contains two income, variable and fixed gross, figures and two debt, variable and fixed expenditures, figures. Presumably, adding each set and subtracting for the years that damages were awarded would demonstrate (1) total gross income, (2) gross debits, and, (3) net profit before bonuses, taxes, etc. A review of Appendix B (our analysis under the foregoing approach) as compared with the General Motors’ figures readily reveals glaring discrepancies. This is not to cast aspersions or to make findings of fact but rather only to demonstrate that something(s) is (are) not reflected therein and was (were) not explained to the trial court. We are at a loss to understand how the trial court could fairly and accurately decide this case when it wasn’t presented with facts clearly and simply enough to understand the whole in a debits-credits approach much less a sophisticated part thereof that necessarily depended upon a complex, confusing set of definitions and factors used by either the auto industry in general or General Motors in particular. The following colloquy occurred: ”Q. (by Mr. Gruel, defense counsel): Did you, at my request, Mr. Johnston, go through your district and come up with several dealerships that have been in operation for a number of years, that in your judgment would be comparable to the Coe situation in Grand Rapids? "A. Yes, I have. "Q. And from among the dealerships that you reviewed to make that selection, what dealerships did you select as comparables, in your professional opinion? 'A. Well, based on sales and the type of operation, we picked Front Pontiac, Toledo, and Rinke Pontiac in Detroit, and I think we went to the extreme because normally a single city point will do better than — both of these points happen to be multiple city points. So, I would say that we went to the extreme when we picked these, from a standpoint that Coe Pontiac figures should look better than either Front or Rinke, normally speaking. "Q. And did you, at my request, do a market analysis on Coe, Front and Rinke for the years 1968, ’69 and ’70, through September 1 of 1970? "A. It’s through August of ’70. ”Q. Through the end of August? 'A. Right.” Further, there was questioning as to the greater discounts being given by defendant in order to sell cars in numbers at or above the national average. Using the dealers chosen by General Motors for comparison and the figures thereon of new car sales and variable gross, which was stated to be profit after discount on new cars, it is possible to explain the smaller profits in Coe’s net income by Coe’s greater discounts. See Appendix C. We further conclude that the damages for loss of profits fall within what has been defined as expectation interest. "This is the interest of the nondefaulting party in being placed in the same financial position in which he would have been had there been no breach.” 22 Am Jur 2d, Damages, §46, p 73. The purpose of damages for breach of contract is to "put the plaintiff [counter-plaintiff] in as good a position as he would have been in had the defendant kept his contract”. 5 Williston, Contracts (rev ed), § 1338, p 3763. The damages should be equal to the value of performance. Id., § 1339, p 3765. The injured party is not, however, entitled to be placed in a better position than he would have been if the contract had not been broken, i.e., the measure of damages is the actual loss sustained by reason of the breach. Am Jur, supra, § 47, pp 74-75. Thus, deduction of any saving to the injured party must be made. Williston, supra, p 3764. Cf. Restatement, Contracts, § 329, pp 503-504. The lease negotiated by the parties to this controversy provided for land valuation of $275,000 and the construction of a building to be valued at approximately $600,000. On this basis defendant Coe was to pay a monthly rental figure of 1% or $105,000 per year. A review of Appendix D, with figures derived from the General Motors chart, which figures come from dealer reports, will demonstrate that Coe actually paid less than would have been paid had the contract been performed. There is no deduction for this amount, approximately $31,346, in the trial court’s award of damages. Therefore, while we are not desirous of extending this lawsuit over any greater period of time, we can see no alternative other than to remand the case for a new trial on the issue of damages wherein the parties may present to the trial court clearer, more understandable testimony which is totally inclusive of all relevant factors and not selectively exclusive. Next, plaintiff asserts that the amount allowed for refurbishing of temporary premises upon which Coe conducted business was erroneous. With this we cannot agree as the record reveals that there were expenditures of some approximately $60,000 and bills were presented to substantiate such. The trial court, however, did not allow that total figure as it found that $40,000 of the $60,000 had been expended by Coe Realty, Inc., not a party herein, and disallowed said two-thirds. Finally, plaintiff argues that interest on the damages awarded should begin on the date the injury was sustained. The trial court awarded damages at the statutory rate to begin as of December 2, 1968, being the date of the filing of the counter-complaint. Plaintiff asserts that as of December 2, 1968, defendant Coe had sustained no injury. MCLA 600.6013; MSA 27A.6013 provides in pertinent part: "Interest shall be allowed on any money judgment recovered in a civil action, such interest to be calculated from the date of filing the complaint at the rate of 5% per year unless the judgment is rendered on a written instrument having a higher rate of interest in. which case interest shall be computed at the rate specified in the instrument if such rate was legal at the time the instrument was executed.” We are not at liberty to determine, nor logically could we find, that a different standard than that found in the statute is to be applied to a counter-complaint. Thus, interest after damages are awarded should run from the date of the filing of the counter-complaint. Remanded for a trial on the issue of damages in accordance with this opinion. We retain no jurisdiction. No costs, as neither party has prevailed fully._ APPENDIX A Key to Abbreviations N.C. Sales - New Car Sales U.C. Sales - Used Car Sales Var. Gross - Variable Gross Var. Exp. - Variable Expenditures Rent Equiv. - Rent Equivalent Fixed Exp. - Fixed Expenditures Fixed Cov. - Fixed Coverage % Ret. on Sales - % Return on Sales % Ret. on Inv. - % Return on Inventory Net Profit Bef. B & T - Net Profit before bonuses and taxes APPENDIX B APPENDIX C See, for instance, Allen v Michigan Bell Telephone Co, 61 Mich App 62; 232 NW2d 302 (1975), where the Court wrote: "The object of the measure of damages in a breach of contract suit is to place the injured party in as good a position as he would have been in if the promise performance had been rendered. Ambassador Steel Co v Ewald Steel Co, 33 Mich App 495; 190 NW2d 275 (1971), Dierickx v Vulcan Industries, 10 Mich App 67; 158 NW2d 778 (1968). Lost profits, if properly proved, are a proper element of damages. Brodsky v Allen Hayosh Industries, Inc, 1 Mich App 591; 137 NW2d 771 (1965). However, before lost profits are recoverable there must be a reasonable degree of certainty for the calculations as opposed to their being conjectural or speculative. The Vogue v Shopping Centers Inc, 58 Mich App 421; 228 NW2d 403 (1975), Fister v Henschel, 7 Mich App 590; 152 NW2d 555 (1967).” Amended by 1972 PA 135, eff March 30, 1973, to provide for interest at 6% which rate is here inapplicable. 1968 Deleted as not herein applicable. Figures approximated for analytical and demons tration purposes.
[ -8, 18, 22, 21, -17, 4, 11, -36, 10, 31, 41, -16, 27, 12, 20, -32, 9, 6, 7, -48, -31, -41, 20, 15, -18, -39, -11, -14, 11, -19, -26, 49, -7, 3, -35, -10, -3, 31, -35, 20, 17, -15, 1, -74, 13, -49, 42, -32, 74, -31, 15, -4, -34, -30, 8, -5, 26, 16, -34, 0, 52, 2, 70, 42, -11, -38, 5, 16, 6, 62, -34, -10, -11, 21, 28, -54, 29, -15, 0, -8, 47, -17, 56, 8, -4, 25, 24, -22, -3, -2, -44, -24, -31, 13, -13, 3, 12, -8, 1, 52, -16, -15, 16, 24, -38, 4, -43, -61, 1, 24, 49, 31, -16, 6, -19, -6, -6, -3, 0, -33, 3, 35, -21, 16, -9, 33, -14, -14, -17, 22, 20, -3, 13, 13, 11, -25, 8, 27, -15, -9, 35, 12, 31, 31, -38, 60, 5, 1, -6, 1, 1, -9, 14, -20, 5, 2, -41, -73, 47, -28, 57, 50, -44, 41, -26, 2, -21, 5, 2, -38, 5, -9, 6, -17, 57, 0, 0, -36, -6, -6, -33, 14, -43, -19, -7, 19, 10, 8, 18, 32, 38, 0, -26, 31, -22, 37, -20, 54, -7, 1, 25, -46, -55, -15, -11, 31, 23, 1, 21, 32, -7, 46, -5, -42, 12, 6, 12, -12, 30, 6, -21, -37, -5, -1, -29, -35, -9, -38, 3, -32, -18, 20, -28, -32, -4, -22, -21, -20, 26, 6, 3, -30, 0, -16, -4, -70, -10, 4, -37, 7, 35, 2, 33, 14, -32, -47, -7, 16, -15, 39, -23, 76, -53, -31, -16, -8, 20, 6, -19, 58, -46, 6, 13, 76, -3, -11, -59, 16, -13, -8, -31, 20, -30, -28, -21, 46, 8, -11, 2, 27, 64, -32, 24, 17, 16, 18, 43, -19, 26, -11, 22, -21, -4, 9, 7, 7, -57, 14, -49, -5, -42, 27, 3, -47, 8, 4, -30, -4, 44, -122, -16, 34, 32, -24, 15, -30, 78, -94, -23, -32, -2, -9, 9, 15, -43, -17, 32, -33, -6, 23, 21, 12, 47, -29, -11, 8, 26, -15, -45, 7, -2, 21, -3, 14, -26, 4, 25, 10, -33, 20, 9, -12, 41, 29, 15, 12, -12, -62, -35, 50, -4, -28, -16, 1, -41, -71, 23, -22, -64, 56, -5, -1, 19, -34, -3, 51, -37, -7, -23, 1, -88, -22, 41, -3, -42, 50, 11, 15, 0, -7, -4, 11, -24, -48, -4, -67, 31, -11, -34, 12, 7, -4, -32, 7, -34, -32, -3, 9, -21, -22, 5, -42, 26, -21, 34, -52, 27, 12, -51, -10, 14, 12, -27, -73, 11, -1, -27, -9, 7, 30, -35, -12, -84, -23, 3, 15, 1, 38, 48, -32, 52, -6, 9, 22, -3, 39, 31, -22, 24, -24, -9, -43, 29, -32, -13, 3, -18, -12, 32, 0, -7, 15, 33, 66, -2, -10, -19, 8, 1, 36, -2, 41, 25, -10, -7, -25, -31, -38, 4, -4, -3, 6, -3, 0, -19, -6, 14, 11, -30, 38, -9, -30, -11, -75, 23, -7, 5, -57, 2, 36, -7, 8, 35, 65, 3, 12, 19, 2, 14, 26, -21, -9, -40, 13, -5, -4, 0, 39, 9, -34, 37, 65, -12, -36, -13, 12, -7, 8, 38, 0, -45, 80, 17, 3, 24, -34, 1, 11, 39, 33, -3, 11, 23, 26, 62, 8, -13, 11, 72, 8, 4, -18, 37, 3, 26, 0, -10, -13, 41, -10, -5, 34, -2, 37, -1, 37, 31, -2, -52, -50, -7, -2, 5, -40, -7, -29, 55, 31, 9, -18, -2, -18, 8, 12, -2, -41, 53, -18, 8, 57, 10, 29, -38, -23, 14, -1, -3, 0, 1, 7, 8, -46, -14, -40, 48, -26, 0, -51, 32, -10, 0, -5, -3, 2, -9, -5, 33, -12, -44, -22, -49, -7, -18, 12, -52, 1, 59, 47, -31, -4, 17, 27, 47, -37, -13, -64, -46, 16, -15, -38, -37, 20, 24, -29, 39, 6, 48, -22, -12, -38, 36, -3, -24, -9, 0, -14, 18, -25, 23, -12, 0, 2, 37, 28, 18, -16, 39, 5, -6, 33, -27, 18, -14, 31, 26, 39, -6, 2, 2, -19, 14, 41, -35, -63, -19, -13, 81, 1, -18, -6, -18, -9, 7, 32, -10, 15, -45, 30, 71, 4, -21, 20, -15, -10, -29, 22, -61, -7, -15, -44, 30, -53, -2, 32, -11, 15, 52, 14, -25, 8, 4, -17, -16, 6, -1, 0, 62, -33, -45, -57, 6, 27, 23, 24, -34, 22, 45, 44, 32, 15, -44, 33, 44, -11, 10, 18, 0, 20, -35, -1, 8, 10, 4, -30, -13, -27, 5, -27, -2, -15, 10, 20, 17, -14, 10, 15, 0, -15, 25, 9, -11, -10, 31, 14, -25, -82, 9, 11, -7, 48, 53, -11, -9, 1, -9, 11, 31, 10, 24, 24, -13, -31, 22, 49, -22, -19, 0, -34, 70, -29, -16, -9, -8, -22, 41, 0, -23, 0, -5, 7, -6, 44, -12, -5, -15, 2, -16, -88, -2, -3, 41, -35, -55, 39, -33, 17, 31, 22, -15, 5, 8, -25, -29, 6, 43, 25, -97, 22, 0, 0, 18, 1, 22, 17, 11, 13, -29, -22, 1, 39, -1, 20, -26, 36, 57, -9, -29, -52, 16, -39, 14, 79, 11, -14, -24, -9, -22, 0, 47, 15, 10, -22, 3, 1, -4, -13, 0, -46, 10, 63, 54, 10, -13, 38, -21, -42, 18, -9, 37, -27, 23, 34, 6, 31, 22, 20, 9, -26, -46, -1, 24, -9, -25, -17, -11, 51, 9, 7, -20, 15, -3, 1, 0, -31, -16, -19, 7, -20, 21, 11, -4, -1, -23, -21, 19, -19, -1, -20, 3, -38, 20, -1, -6, 6, -27, -77, -47, 22, 0, 47, -38, 11, 12, 47, -34, -8, 10, 20, 6, -13, -22, 88, 1, -31, 38, 27, 1, -33, -62, 4, 9, -32, 12, 12, 3, -8, 44, -9, -66, -24, -4, -41, -17, 21, -10, -62, 3, 1, -42, -14, -23, -34, 4, 22, -76, 3, 8, 1, 46, 16, -6, 46, -12, -5, 31, 4, -16, 9, -8, 20, -36, -7, 8, 41, 2, 34, -26, -36, -51, -68, 41, 22, 26, -8 ]
Per Curiam. Defendant, Charles Hall, was convicted of the misdemeanor of assault and battery, MCLA 750.81; MSA 28.276, after a trial before District Judge James M. Kelly sitting without a jury. Defendant was sentenced to serve five days concurrently with a sentence already imposed. Defendant appealed to the St. Clair County Circuit Court and his conviction was affirmed. Defendant now appeals to this Court upon leave granted. Defendant first contends that his conviction must be reversed because he was at no time advised of his right to an attorney or afforded the assistance of an attorney. We agree. In Argersinger v Hamlin, 407 US 25; 92 S Ct 2006; 32 L Ed 2d 530 (1972), decided June 12, 1972, the United States Supreme Court held: "We hold, therefore, that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial. "That is the view of the Supreme Court of Oregon, with which we agree. It said in Stevenson v Holzman, 254 Or 94, 102, 458 P2d 414, 418: " 'We hold that no person may be deprived of his liberty who has been denied the assistance of counsel as guaranteed by the Sixth Amendment. This holding is applicable to all criminal prosecutions, including prosecutions for violations of municipal ordinances. The denial of the assistance of counsel will preclude the imposition of a jail sentence.’ ” (Footnotes omitted.) 407 US 25, 37-38; 92 S Ct 2006, 2012-2013; 32 L Ed 2d 530, 538-539. See also People v Studaker, 387 Mich 698; 199 NW2d 177 (1972). While defendant’s trial in the instant case occurred on January 25, 1972, prior to the decisional date of Argersinger v Hamlin, supra, he is not, because of that fact, deprived of its benefit. In Berry v Cincinnati, 414 US 29; 94 S Ct 193; 38 L Ed 2d 187 (1973), a unanimous United States Supreme Court held that persons convicted prior to the decisional date of Argersinger were entitled to the benefit of the rule stated therein "if they allege and prove a bona fide, existing case or controversy sufficient to invoke the jurisdiction of a federal court”. Berry v Cincinnati, supra at 30; 94 S Ct at 194; 38 L Ed 2d at 189. In the case at bar defendant has properly pursued his appellate remedies from the time of his conviction and at each step of the appellate process has raised the right to counsel argument. In the circuit court the prosecution argued that the issue of whether defendant’s conviction should be reversed on this basis was moot because defendant had already served his time. The circuit court judge held, on the basis of Sibron v New York, 392 US 40; 88 S Ct 1889; 20 L Ed 2d 917 (1968), that the case was not moot and that sufficient collateral consequences flowed from defendant’s conviction to establish a justiciable case. We agree with this determination, although not for all the reasons stated therein, and find, therefore, that defendant is entitled to the benefit of the rule announced in Argersinger. Defendant herein was convicted of the misdemeanor of assault and battery and sentenced to serve five days in jail without the aid of an attorney to assist in his defense and without ever having been advised of his right to an attorney. Under Argersinger defendant was entitled to be represented by an attorney if he so desired and the failure to inform him of his rights in this regard requires the reversal of his conviction. We are not at all persuaded by the prosecution’s argument that since the sentence imposed by the trial judge was to be served concurrently with another sentence, Argersinger does not require reversal. Defendant’s next argument, that under the factual circumstances here presented he could not, as a matter of law, be convicted of assault and battery because he was legally justified in using the force he did, is without merit. Defendant’s defense in this regard is a question which depends on credibility and the weight to be accorded the testimony of various witnesses. A determination of the validity of this defense properly belongs to the finder of facts. Defendant’s final contention, raised by supplemental brief, is answered by the recent decision of our Supreme Court in People v Milton, 393 Mich 234; 224 NW2d 266 (1974), which decided the issue adversely to the position espoused by defendant. Reversed and remanded. See People v Renno, 392 Mich 45; 219 NW2d 422 (1974).
[ 22, 9, 2, 6, -68, -30, -5, 4, -66, 46, 15, 8, 4, -20, 21, -53, 18, 71, 19, 13, -23, 15, 21, 81, -7, -51, 44, 40, -39, 35, 40, -24, 19, -4, -41, -1, 45, -18, 3, 31, -32, -32, -17, 0, -61, -36, -28, 10, 39, -6, -7, 19, -25, 43, 43, -36, 27, -1, -27, 49, 7, 34, -58, 10, 9, 3, -5, 19, 7, -42, -33, -33, 2, 30, 49, -1, 7, 8, 25, 20, -7, -9, -2, -23, 19, 10, 14, -57, -2, -19, -39, -3, -47, -37, -21, 16, 11, -52, 13, -48, 4, -57, -7, -28, 12, 4, -12, 2, 53, 52, 37, 10, 1, -2, -53, -64, -5, -55, -22, 9, 49, 0, 32, 11, 26, -21, 7, -37, -19, -31, -6, 26, -15, -14, 12, 52, 0, -12, 11, -16, 9, -31, -10, -20, 71, -3, -10, 18, 1, 4, 13, 51, -25, 38, 0, 51, 18, 6, -27, 46, 23, 7, -38, -20, 41, -15, -35, -12, -11, -25, 24, -7, 45, 56, 60, -1, 49, 9, -8, 71, -60, 3, 7, -5, -8, 19, -45, 0, -74, -63, -25, 34, 7, -35, 71, 9, 6, 40, 4, 0, -48, 34, 9, 67, 50, -29, 46, 33, -8, -34, -49, -17, -6, -46, 19, -13, -9, 16, -12, 16, -53, 17, 9, -15, -32, 13, 27, 3, 30, -28, 22, -12, -18, 30, -11, 4, -14, -5, 67, -34, 17, 5, 4, -52, 6, 27, 44, 30, -10, -10, 39, -40, 3, 20, -39, -9, 9, -17, -12, 11, -1, 11, 9, -9, -44, 35, 1, 7, -19, 7, 19, 18, 31, 19, -3, -5, -54, -7, 32, -71, 34, 4, 36, 21, -59, -5, 7, -28, 12, 13, 47, -50, -34, 24, 31, -19, -15, -3, -63, -16, 33, 28, -2, -1, 12, -4, -28, 21, -5, -12, 26, 45, 6, -18, 9, -11, -6, -49, 4, -18, -44, -17, 37, -4, 57, -29, 62, -23, 4, -12, -15, 0, -11, 27, 3, 8, 21, 4, 24, 39, 10, -52, 17, -33, -11, 48, -24, 36, 9, -23, 25, 18, -31, 27, -3, -40, -38, -47, -27, -8, -1, -26, -35, -16, 27, 32, -7, 37, 74, 16, 31, -42, -2, -36, -46, 10, 19, 15, -41, 14, 20, -3, 45, -51, -3, -11, -34, 1, -30, -8, -10, -36, 26, -72, -52, 40, -2, 12, 73, -29, -26, -40, 47, -19, -11, -65, -58, 37, 17, 7, -73, 49, 15, 66, 14, -5, 32, -37, 0, -29, 20, -41, -3, -19, 21, 24, -45, 25, 12, 22, 31, -12, 15, -37, -7, 4, -36, 39, -9, -24, -38, -40, 15, 9, 17, -38, -27, -57, 1, -29, -4, -15, 15, -11, 7, 8, 4, 9, -7, -12, 4, -11, -46, -3, 34, -33, -86, -7, 0, -23, 12, 29, 31, 40, -61, -2, -37, 29, -17, 1, 32, -21, 7, -24, -11, -5, 34, -23, -6, -49, -32, 31, 33, -17, 20, 46, -35, -6, -35, 3, -5, 20, 16, -22, 20, 4, 44, -34, 8, 27, 8, -23, -19, 31, -24, -41, -17, 0, -11, 20, -10, 0, 3, 19, -19, 3, -8, -26, -10, 9, 73, 20, -67, -24, 15, -9, -19, -5, -15, -2, -9, 17, 11, -26, -20, 2, -5, -4, -26, -5, -38, 12, -37, 5, -11, -4, -60, 26, 61, 2, 27, 2, 60, 34, -4, 44, -30, 11, 14, 60, 12, 3, -61, -7, 17, -4, 34, 51, 12, -53, 57, 23, -10, -66, -54, -27, -17, -12, 46, -43, -7, -2, 3, -48, -57, -15, -4, -34, 55, 42, -39, 45, -5, -4, 48, 8, 45, 76, 17, -20, 24, 17, -18, -12, 5, -11, -6, -1, -23, 10, -14, 14, 7, 2, 22, -55, -91, -18, -14, -44, -3, -2, -30, -24, -45, 53, 28, -1, -11, 26, -27, 53, -15, -40, 30, -26, 40, -23, 12, -52, 25, 61, -4, 1, 5, -22, 3, -16, 57, -31, -2, 40, -21, 14, 12, 44, -18, -4, 13, -20, 29, -18, 30, 37, 13, -1, 29, 39, -11, -28, -63, -38, 18, -45, -30, 28, -34, 51, 41, -5, 35, 15, 14, -48, -11, 3, 61, 19, -4, 22, -30, -19, 26, -7, -24, 23, -23, -47, -45, -17, -35, 17, -25, 20, 23, 4, -19, -32, -44, 35, 33, -25, -42, -35, 22, -18, -16, -16, -8, 0, 0, -10, 20, -37, -2, 35, -18, -23, 29, 23, -24, -11, -11, 5, -10, 18, -41, -27, 14, -10, 39, 11, -1, 40, -43, 37, 14, -6, -76, -17, -69, 32, 5, 0, -32, 41, -26, 8, 34, 22, -8, -2, -9, 0, -39, 13, 5, -10, 18, 11, -2, 21, -25, -9, -2, -23, -32, -47, -29, 22, -1, -53, -4, 14, 12, 32, -6, 3, 36, 20, 18, 27, 26, -5, -14, -21, 12, 69, 64, -25, 23, 66, -14, 8, -16, 30, 28, 30, 17, 31, -4, 0, -35, -2, 10, 53, -25, -9, 24, 0, -32, -11, 8, 73, 16, -39, -4, 0, 1, 11, -23, 3, 25, -4, 3, 21, 13, -18, 74, 12, 37, -35, -23, -15, -17, -11, -39, -44, 0, 14, -1, -5, -5, -35, 19, -4, -6, -13, 41, 15, -23, -28, 54, 29, -39, 37, -23, -4, -23, 13, -5, 28, -27, 0, 52, -3, -12, -34, -30, -12, 48, 45, -28, 65, -13, 0, -21, -6, -31, -14, 12, -3, 22, 23, 29, 35, 0, 34, -20, -19, 6, 0, -53, 26, 51, 21, -56, 18, 5, 9, -13, 54, 12, 10, -50, -45, -2, -59, -9, 38, 0, -19, 33, -21, 7, 0, 36, -22, -3, -33, -14, 2, -34, 44, -40, 46, 5, -51, 12, 2, -93, -19, 10, 17, 33, -31, -19, 40, -11, -25, -66, -19, -60, -9, 20, 5, -7, -59, -26, 7, -3, 12, -16, 29, 18, 16, 16, 5, 2, 7, -29, -45, 20, 12, -37, 0, -29, 35, -41, -56, 30, 42, 47, 67, 45, 11, -16, -5, -15, 24, -10, 37, 52, 14, -17, 18, 9, 2, -46, 3, 21, -14, 48, -36, -20, 6, -15, -3, -8, 21, 15, 49, -1, -29 ]
McGregor, J. Prior to January 16, 1972, defendant insured the contents of Mary Ricks’ dwelling against fire damage. On January 16, 1972, a fire occurred at the residence. Mary Ricks submitted proof of loss to defendant, which was rejected on March 6, 1972. On September 27, 1972, a complaint was filed alleging fire damage to the premises and $16,200 in damages as a result of a breach of a contract for repair of the fire damage, entered into on January 18, 1972. A receptionist-switchboard operator at defendant’s Southfield office accepted service of process on February 27, 1973. Six months later, on August 30, 1973, defendant filed a motion to quash service, dismiss the cause, and for accelerated judgment as to Mary Ricks, alleging: 1) Plaintiffs failed to serve a copy of the summons and complaint upon defendant within 180 days from the date of filing of the complaint, as required by GCR 1963, 102.5; 2) Service upon defendant’s switchboard operator was insufficient under GCR 1963, 105.4; and 3) Suit was not commenced within 12 months after the occurrence of loss as required by the insurance policy. Pursuant to GCR 1963, 102.5, the trial court on September 28, 1973, granted defendant’s motion, quashed service of process, dismissed the cause without prejudice as to plaintiff Fulton and as to plaintiff Ricks dismissed the cause with prejudice. On December 6, 1973, subsequent to the commencement of a second suit by the plaintiff Ricks against the attorney who signed the complaint in this cause, plaintiffs filed a motion to set aside the order to quash service of process, dismissing the cause, and for accelerated judgment. On February 27, 1974, the trial court having determined that the service of the summons and complaint described herein constituted a valid service of proc ess, since the defendant had actual notice of the pending cause, granted the plaintiffs’ motion to set aside the order to quash service of process, to dismiss the cause, and for accelerated judgment. Leave to appeal was granted. At oral argument on this appeal, defendant’s counsel stated that defendant had timely notice of the pending litigation, but contended that the service did not give the trial court jurisdiction, notwithstanding the surrounding circumstances. The basic issue before us is whether plaintiffs’ noncompliance with GCR 1963, 105.4 nonetheless confers in personam jurisdiction over defendant in the trial court. In this claim of adequate notice to the defendant by plaintiff there was no showing that defendant was surprised, no slumbering by plaintiff, no indication that evidence had been lost. Defendant had timely notice so that a proper defense, if one existed, could be established on the merits. This Court has held: "[T]he court should effect the obvious purpose of a statute. Northville Coach Line, Inc v Detroit, 379 Mich 317; 150 NW2d 772 (1967); Ford Motor Co v Village of Wayne, 358 Mich 653; 101 NW2d 320 (1960).” Cronin v Minster Press, 56 Mich App 471, 477; 224 NW2d 336 (1974). GCR 1963, 105.4 is permissive in nature. It is noteworthy that the rule fails to penalize plaintiff for noncompliance. Further, the committee notes following the rule expressly state that the underlying concept and goal of the rule is to accord the defendant notice of the pending litigation. 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 116. Thus, the question of service of process (notice) is answered according to the dictates of due process. Here, defendant had actual knowledge of the pending suit. Any due process objection has therefore been satisfied. See International Salt Co v Wayne County Drain Commissioner, 367 Mich 160; 116 NW2d 328 (1962). The language of GCR 1963, 102.5 itself is not mandatory, but permissive in context, as the introductory sentence to that rule states: "Service of process upon a corporation, whether domestic or foreign, may be made by * * * ”. (Emphasis added.) GCR 1963, 105.9 provides that personal jurisdiction is conferred by service of the summons and complaint in accordance with the foregoing rules. The explanation found in the committee notes following this rule reflects the intent of the authors, as found on page 116 of the permanent edition of the Michigan Court Rules Annotated: "The key legal concept here is that service of process is to give notice. The existence of certain relationships between an entity and the state constitutes the basis upon which jurisdiction can be asserted. The important matters involved here are (1) that the person served should have the requisite ties, contacts, or relations with the state asserting jurisdiction, as required by International Shoe Co v Washington, 326 US 310; 66 S Ct 154; 90 L Ed 95; 161 ALR 1057 (1943), and (2) that the person served be given notice of the pendency of the action and an opportunity to defend, as required by Milliken v Meyer, 311 US 457; 61 S Ct 339; 85 L Ed 278; 132 ALR 1357, rehearing denied 312 US 712; 61 S Ct 548; 85 L Ed 1143 (1940).” 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 116. In the instant case we have a defendant who, with knowledge of the pending lawsuit, chose to maintain silence until the expiration of the statute of limitations period and thereafter moved to quash service and therefore avoid facing the responsibilities which are attendant to doing business within the borders of the State of Michigan. The minimum contacts doctrine requiring that suit against the nonresident must not offend traditional standards of fair play and substantial justice sets forth the outer limits in which a state may seek to exercise jurisdiction. The doctrine, however, is irrelevant to the instant appeal, i.e., this suit does not deal with whether the state may constitutionally subject a defendant corporation to in personam jurisdiction. Rather, the problem is whether plaintiffs’ noncompliance with the court rule properly subjects the defendant to in personam jurisdiction within the state. "The method provided for service of process must, of course, give reasonable assurance that actual notice and an opportunity to defend will be afforded to the corporation, in order to satisfy due process under the Fourteenth Amendment.” 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 97. While neither the author’s comments or the committee notes bind this Court, they are nonetheless relevant in interpreting the statute. Buscaino v Rhodes, 385 Mich 474, 481; 189 NW2d 202 (1971). See also Newhall v Ace Steel & Fabricating Co, 352 Mich 528, 535; 90 NW2d 459 (1958). "[S]ervice of summons and a copy of the complaint, by any means authorized by sub-rules 105.1-105.8, shall confer personal jurisdiction over a defendant having any of the contacts, ties, or relationships prescribed by RJA Chapter 7. "Jurisdiction is the power to enter a binding judgment. The bases of jurisdiction are those prescribed relationships between the defendant and the state which make it constitutionally permissible for the state to extend its judicial power over the defendant. Service of process is the means by which the defendant is given notice of the proposed exercise of such power and an opportunity to defend, according to the requirements of due process. No longer is personal service within the state, either directly upon the defendant or upon some real or fictitious agent, the only basis of personal jurisdiction.” 1 Honigman & Hawkins, Michigan Court Rules Annotated, (2d ed), p 123. (Emphasis added.) As to plaintiffs’ contention that GCR 1963, 105.4 is permissive, a reasonable interpretation of the same dictates that while service may be effectuated by compliance with any one of the four alternatives, adherence to one of the same is required. See 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), supra. We next consider the question of whether defendant’s knowledge of this pending action, notwithstanding the defective service of process, es-tops defendant from asserting the 12-month policy limitation within which the insured must commence suit. On the merits, defendant’s actual knowledge of this action does not estop it from asserting the statute of limitations contained in the insurance policy. Mason v Letts, 14 Mich App 330; 165 NW2d 481 (1968), Guastello v Citizens Mutual Insurance Co, 11 Mich App 120; 160 NW2d 725 (1968). Plaintiff contends that the defendant has established a systematic method of accepting service of process through its receptionist-telephone operator and has led the public in general and process servers in particular to believe that valid service is accomplished by leaving the specific documents in the possession of this agent of the defendant. There was insufficient time to conduct discovery to determine whether the switchboard operator actually had the authority to accept service. Substantiating this allegation, however, is the fact that the defendant in the instant case was also the defendant in Guastello, supra, and there it was also represented by counsel that "an employee” of the company accepted service. Policy provisions limiting the time in which suit may be brought are valid. Bashans v Metro Mutual Insurance Co, 369 Mich 141, 143; 119 NW2d 622 (1963), MCLA 500.2832; MSA 24.12832. However, it is arguable that ineffective service, i.e., service not effected upon the statutorily defined person, will estop the insurer from asserting the limitation. In short, defendant’s failure to quash service within a reasonable time and its apparently intentional failure to do so until after expiration of the 12-month limitation has effectively prejudiced and misled the insured. "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.” Czajkowski v Lount, 333 Mich 156, 165; 52 NW2d 642 (1952), quoting from Detroit Savings Bank v Loveland, 168 Mich 163, 172; 130 NW 678 (1911). ’Dedenbach v City of Detorit, 146 Mich 710 [110 NW 60] (1906), might be cited for the view that Michigan has rejected such possible exception to the general rule that defendant’s knowledge of the pendency of suit is not a substitute for good service of process; but in Dedenbach the issue whether defendant’s knowledge of a defective attempted service could toll the statute was not squarely decided. We need not attempt to resolve the question. Granting the possible wisdom of an exception in a case where the defendant was defectively served before expiration of the time limitation, and in that manner gains knowledge within the limited time that an action is pending against him, such an exception should not be available to one who, as Guastello, learns that his attempted service is defective and delays for over a year before making a further effort to effect service.” Guastello, supra, at 132. The 12-month period began to run on January 16, 1972, the date of the fire. Barry & Finan Lumber Co v Citizens’ Insurance Co, 136 Mich 42; 98 NW 761 (1904), Vestevich v Liberty Mutual Insurance Co, 47 Mich App 490; 209 NW2d 486 (1973), Villamor v Premier Insurance Co, 13 Mich App 30; 163 NW2d 697 (1968). The filing of the complaint tolls the 12-month limitation for the 180-day period, as provided in GCR 1963, 102.5. Buscaino v Rhodes, supra, Krontz v Estovez, 49 Mich App 30; 211 NW2d 213 (1973). The issue at hand is whether defendant should be estopped from asserting the stipulated limitation. Therefore, whether plaintiff has failed to achieve proper service upon defendant, as defendant contends, is irrelevant. While in dictum, this Court agrees that the defendant’s knowledge of the defective service and its failure to file a motion to quash, waiting instead until the expiration of the 12-month period, estops the company from asserting the same, this Court has ruled to the contrary. Mason v Letts, supra. However, sufficient reason exists to deny defendant the use of the 12-month limitation. We cite Judge (now Justice) Levin’s dissent in Conrad v Ward, 33 Mich App 687, 695-696; 190 NW2d 361 (1971): "The purpose of requiring both commencement of an action and service of process upon a defendant within the statutorily-prescribed limitational periods should be deemed satisfied when (1) the plaintiff commences an action and (2) the defendant learns of the commencement of the action within the statutory period, howsoever he obtains such notice, whether through formal service or otherwise, if either the plaintiff has substantially complied within the statutory period with the requirement that service be effected or the defendant has attempted to avoid service.” It is conceivable that defendant, before filing its motion for accelerated judgment, waited out the balance of the statutory period, so that plaintiffs’ claim would be estopped. This Court deems defendant’s conduct inequitable, estopping defendant from asserting the claimed defense. Cronin v Minster Press, supra. Affirmed.
[ -60, -17, -9, 35, 19, -6, -14, -48, 19, 36, -33, 15, 21, 9, 4, -52, -76, 15, 7, -24, 5, 0, -19, -20, -34, -37, 6, -28, 25, 39, -38, -4, -8, -21, -29, -40, 13, -16, -24, 17, 24, -25, 27, 13, 0, -12, 12, 40, 10, 44, 13, 18, 18, -15, -17, -2, 11, 57, 4, 0, -25, -7, -33, 0, 8, 30, 31, 4, -9, 0, 40, 20, 10, -9, -18, 37, -5, -27, -9, 43, -14, -46, 34, 7, 10, 4, -15, -26, -46, 0, -45, 12, -41, -2, -4, -10, -66, 36, 8, 26, -8, 4, 0, 26, -1, 8, 17, -83, -51, -43, -35, 14, 16, -20, 33, 0, 44, 15, -40, 29, 23, 1, 55, -49, 0, 28, 11, 19, 37, 25, -9, 24, -9, -5, 0, -5, 1, -5, -5, 5, -18, -41, 17, 11, -3, 6, -1, -5, -36, -20, 16, 28, -21, 4, 24, -2, 26, -33, 0, 11, 2, -14, 1, 14, -21, -47, 12, 60, -3, -15, 25, -56, -3, -28, 26, -36, -22, -13, -64, 59, 20, -12, 19, -2, 31, -21, -39, -18, 22, 11, 48, -48, -21, 4, -1, 13, 36, 45, -26, -11, 12, -19, 43, -62, 3, -11, 6, -8, -10, 0, -25, 9, -63, -30, -60, -14, 20, -4, -45, -13, -31, 20, 14, -9, -16, -19, -52, 12, 28, -23, -10, -6, 14, 25, -57, 32, 7, 58, 0, 18, 33, 10, 28, 2, 30, 8, -36, -20, -16, -33, -10, -21, 3, 28, 47, -49, 10, 5, 3, 18, -23, 3, -37, -38, 18, 5, 13, 2, -35, 16, -7, 1, 24, 36, -25, -48, -7, 24, 6, 34, 18, -4, -56, -5, -21, -26, 62, -8, -19, -14, 7, -4, -8, 26, 21, -18, 25, 6, -21, -26, 36, -24, 33, 5, -23, -14, -35, -6, -2, -4, -3, -27, -11, -79, 32, 6, -19, 37, -11, -40, 24, 32, 9, -1, -4, -51, 30, -35, 41, 21, -23, -31, 0, 6, 0, -6, 35, 14, 8, 12, -24, 16, -19, -23, -38, 55, 51, 1, -8, 7, -12, -5, 22, 26, 14, 40, 23, -9, -57, 78, 13, -10, -11, 31, 31, 28, 1, -9, -16, 46, -3, -24, -18, -23, -42, -24, -27, 27, -46, 63, 45, -46, 12, 5, -11, 35, -15, -11, -49, -9, -42, -37, 25, -12, -25, -16, -43, 4, -10, 4, 38, 2, -26, 0, -40, -27, -50, -44, 7, 40, 2, 0, -4, -14, 0, 2, 10, -17, 43, -32, 6, -18, 32, 12, -16, -53, 14, 20, 35, 14, -20, 43, 16, -9, 1, 23, -65, -9, -11, 26, -3, 35, -43, -12, -6, 6, -17, 17, 52, -28, 29, 12, 51, 2, -42, 18, 15, -27, 30, -3, 17, -43, -19, 56, 8, 25, 7, -5, 14, -16, -5, 9, -25, -11, -36, -18, 3, 7, -30, -3, 3, 67, -18, -7, 1, 12, 8, -24, 16, -39, 32, -26, 0, -9, -25, 15, -52, -13, -19, -11, -37, -49, 9, 46, 38, -26, -52, 16, -19, 28, -3, -7, 46, 11, 46, 6, 45, 3, 6, -19, -10, -24, -45, -23, -15, -26, -12, -8, 59, 2, 49, -14, 3, 48, -23, 23, 24, 14, 19, -14, -4, 75, -5, 26, -30, -3, -47, 5, -10, 23, 5, -72, -9, 9, -8, 18, -22, 0, 35, 34, 16, 20, 52, -12, 16, -4, -8, -4, -9, -22, -25, 35, 7, -27, -11, -20, 3, 7, -32, 1, -19, 25, 0, -61, -16, -27, 19, 18, -4, 53, -25, 21, -10, -38, 56, 24, -76, -59, 41, -16, 22, -36, -34, 5, 13, 7, 12, -7, 8, -28, 21, -18, -104, -28, 2, -8, -23, -7, 5, 1, 12, 4, 14, 52, -31, 45, 27, 44, -5, 24, 48, -16, 0, -42, 28, -21, 22, 2, -70, -9, -61, 3, 22, 8, -69, 17, 6, -12, -37, -28, -18, 46, -3, 13, 2, -26, 37, 21, 4, -49, -18, -54, -21, 48, -19, 31, 31, -42, -31, 45, -23, -36, 26, 36, -17, 8, -19, -5, -8, -6, 10, 5, 8, -1, 16, -32, 19, -9, -8, -34, -26, -47, -20, 1, 46, 16, -17, 16, 53, -16, -28, 32, 14, 33, -56, 52, 1, -59, 60, 11, -65, 1, 60, 0, -8, -13, -12, 10, -17, 1, -4, 0, 33, -19, -25, -6, 70, 21, 34, -43, -9, 32, -19, 10, -30, -26, 25, -31, -7, 61, -12, 3, 32, -9, -35, -10, 48, 35, 6, -44, 15, 9, -5, -12, 59, -17, 0, -21, -7, 14, 83, -20, 39, -26, -20, 31, 48, -3, 14, -27, -22, 31, -12, 2, -23, 53, -6, -44, 14, -3, 25, -35, 23, -19, -4, -39, 15, 37, -34, -22, 11, 65, 4, -51, -29, 20, 5, -4, -31, -6, -3, 41, 62, 0, 7, -21, -47, -4, 1, -17, -15, -7, 18, -33, -24, 13, -40, 10, -6, 46, -12, 8, -31, 45, 12, -49, 27, -35, -10, -8, 19, -24, 16, 25, -10, -13, 5, 38, 10, -36, 15, 7, -24, 3, 9, 13, -23, -20, 3, 30, -12, -6, -8, 19, -8, -18, -7, -13, -2, -32, 9, 12, -22, -62, -4, 31, -30, -36, 32, 8, 24, 22, -18, -39, 21, 1, -24, -54, 57, 8, -17, -18, -14, 16, 12, 20, 15, -3, 1, 58, 29, 13, 38, 62, 2, 19, -23, 23, 5, -9, -26, 5, 14, 13, 5, -12, -9, -6, -37, 11, 31, 16, -13, -14, -6, 60, 17, 4, 1, 25, -6, -25, 13, -54, -3, 42, 55, 40, -11, 48, 28, -50, 35, 60, 24, -64, 0, -39, -44, 47, -1, -37, 0, -17, -45, -1, 38, -3, 19, 40, 9, -29, 14, 15, -33, 63, 0, -2, 1, -48, -19, 47, -9, 17, 33, 35, 33, 23, -26, -10, 6, -15, -28, -24, -20, 22, 30, 42, -33, 24, -6, -15, -12, -17, 9, -2, -19, -17, -26, -33, 62, 5, 23, 22, -22, -30, -24, 2, -10, 31, -4, 3, 16, 0, 45, -8, 30, 15, -12, 1, -15, 21, 48, 4, 0, -1, -52, 32, -44, -56, 35, 20, 0, 40 ]
M. J. Kelly, J. Defendants were charged with delivery of a controlled substance, MCLA 335.341(l)(b); MSA 18.1070(41)(l)(b) and MCLA 335.316; MSA 18.1070(16). Following the preliminary examination defendants moved to dismiss on the ground that MCLA 335.311; MSA 18.1070(11) constituted an unlawful delegation of legislative power to an administrative agency. The district court agreed with defendants’ assertion, but considered defendants’ motion intertwined with the Administrative Procedures Act, MCLA 24.201, et seq.; MSA 3.560(101), et seq. and as such believed exclusive jurisdiction was vested in the circuit court. It thus certified the motion to Oakland County Circuit Court. In the circuit court, defendants’ motion to dismiss was renewed and granted by order dated January 6, 1976. The people appeal from this dismissal. Defendants were charged with delivery of methaqualone. This drug, although not specified as a controlled substance in schedule 2, MCLA 335.316; MSA 18.1070(16), was added as a schedule 2 con trolled substance pursuant to MCLA 335.315; MSA 18.1070(15). This section states: "The administrator shall place a substance in schedule 2 if it finds all of the following: (a) The substance has high potential for abuse. (b) The substance has currently accepted medical use in treatment in the United States, or currently accepted medical use with severe restrictions. (c) The abuse of the substance may lead to severe psychic or physical dependence. The administrator is the State Board of Pharmacy, MCLA 335.303(2); MSA 18.1070(3X2), which designated methaqualone as a schedule 2 depressant. 1974 AACS, R 338.3119, 1973 AACS, R 338.3119. Further, MCLA 335.311(1); MSA 18.1070(H)(1) of the Controlled Substances Act, MCLA 335.301, et seq.; MSA 18.1070(1) et seq., allows the administrator to add, delete or reschedule substances. It reads in relevant part as follows regarding the standards to be applied: "In making a determination regarding a substance, the administrator shall consider all of the following: "(a) The actual or relative potential for abuse. "(b) The scientific evidence of its pharmacological effect, if known. "(c) The state of current scientific knowledge regarding the substance. "(d) The history and current pattern of abuse. "(e) The scope, duration and significance of abuse. "(f) The risk to the public health. "(g) The potential of the substance to produce psychic or physiological dependence liability. "(h) Whether the substance is an immediate precursor of a substance already controlled under this chapter.” MCLA 335.311; MSA 18.1070(11). The issue is whether the provisions of the Controlled Substances Act that allow the State Board of Pharmacy to add controlled substances to the schedules of proscribed substances constitute an unlawful delegation of legislative power to an administrative agency. Both the district court and the circuit court found an unlawful delegation of legislative power. This issue appears to be one of first impression in this state. In Department of Natural Resources v Seaman, 396 Mich 299, 308-309; 240 NW2d 206 (1976), the Court set forth the following regarding a claim that a statute was an unlawful delegation of legislative power: "The rule with regard to delegation was simply and aptly stated in the leading case of Locke’s Appeal, 72 Pa 491, 498-499 (1873): " 'The legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. To deny this would be to stop the wheels of government.’ "While no hard and fast rule exists for determining whether a given statute has provided sufficient standards, a number of guiding principles have evolved in Michigan jurisprudence to assist in making a determination in this case. "First, the act in question must be read as a whole; the provision in question should not be isolated but must be construed with reference to the entire act. Argo Oil Corp v Atwood, supra, 53. [274 Mich 47, 52; 264 NW 285 (1935)]. "Second, the standard should be 'as reasonably precise as the subject matter requires or permits’. Osius v St Clair Shores, 344 Mich 693, 698; 75 NW2d 25; 58 ALR2d 1079 (1956). "The preciseness of the standard will vary with the complexity and/or the degree to which subject regulated will require constantly changing regulation. The 'various’ and 'varying’ detail associated with managing the natural resources has led to recognition by the courts that it is impractical for the Legislature to provide specific regulations and that this function must be performed by the designated administrative officials. People v Soule, 238 Mich 130, 140; 213 NW 195 (1927). See United States v Grimaud, 220 US 506; 31 S Ct 480; 55 L Ed 563 (1910). "Third, if possible the statute must be construed in such a way as to 'render it valid, not invalid’, as conferring 'administrative, not legislative’ power and as vesting 'discretionary, not arbitrary, authority’. Argo Oil Corp v Atwood, supra, 53.” (footnotes omitted). We apply Seaman, supra, to the present case. Reading the Controlled Substances Act as a whole, we find the standards provided to the Board of Pharmacy "as reasonably precise as the subject matter requires or permits”. The act contains five schedules listing various controlled substances and provides the board with specific grounds for listing a substance in a particular schedule. For example, if the board finds that a substance has (a) a high potential for abuse, and (b) has no accepted medical use in treatment in the United States or lacks safety for use in treatment under medical supervision, the board is required to place that substance in schedule 1. MCLA 335.313; MSA 18.1070(13). MCLA 338.1102; MSA 14.757(2) provides that the Board of Pharmacy shall consist of seven members, six of which shall be registered pharmacists licensed in the state for at least five years, actively engaged in the practice of pharmacy and graduates of a recognized college of pharmacy and the seventh shall be a representative of the general public. Further, MCLA 335.311(5); MSA 18.1070(H)(5) of the act establishes "a 6-member scientific advisory commission to serve as a consultative and advising body to the administrator in all matters relating to the classification, reclassification, addition to or deletion from, of all substances presently classified as controlled substances in schedules 1 to 5, or substances not presently controlled or yet to come into being. The scientific advisory commission shall be made up of 2 physicians to be appointed by the director of the department of health; 2 pharmacists to be appointed by the director of the department of licensing and regulation; the chief of the crime detection laboratory of the department of public health, and the director of the department of state police or his designee.” The board is not without other sufficient guidelines. MCLA 335.311(1) provides the board with various factors which are required to be considered by the board in making a determination regarding a substance and in each particular schedule the Legislature has listed specific substances which the board can use as a guide in listing a substance. We are mindful that the Controlled Substances Act must, if possible, be construed in such a way as to render it valid as conferring and vesting discretionary administrative authority. We feel that the need for both legislative and administrative flexibility is essential in order to deal with the amorphous and ubiquitous drug abuse problem. We hold that the Controlled Substances Act of 1971 is not an unconstitutional delegation of legislative power to the Board of Pharmacy, rather wé find the act to contain adequate standards and guidelines which are readily understandable to experienced pharmacists. Other jurisdictions have held likewise. The Controlled Substances Act is a Uniform Act which has been adopted by 42 states, the Virgin Islands and Puerto Rico. The majority of jurisdictions which have considered this issue have upheld the statutory scheme, holding that the standards contained in their Controlled Substances Acts are sufficiently precise to withstand the delegation of power challenge. Reversed and remanded for trial. We note, as the plaintiff points out in its brief on appeal, that the district court’s concern over coffee being listed as a controlled substance is obviated by MCLA 335.311(7); MSA 18.1070(H)(7). 9 ULA Matr, Fam & Health Laws (1976 Supp), p 33. See People v Einhorn, 75 Misc 2d 183; 346 NYS2d 986 (Sup Ct, 1973), State v Lisk, 21 NC App 474; 204 SE2d 868 (1974), lv den, 285 NC 666; 207 SE2d 759 (1974), Cassell v State, 55 Ala App 502; 317 So 2d 348 (Crim App, 1975). See also White v United States, 395 F2d 5 (CA 1, 1968), cert den, 393 US 928; 89 S Ct 260; 21 L Ed 2d 266 (1968), Iske v United States, 396 F2d 28 (CA 10, 1968), State v Sargent, 252 Or 579; 449 P2d 845 (1969), State v Boyajian, 344 A2d 410 (Me, 1975). Contra, Howell v State, 300 So 2d 774 (Miss, 1974), Sundberg v State, 234 Ga 482; 216 SE2d 332 (1975).
[ -20, -12, 15, 60, -34, 21, -17, 35, -75, 41, -9, -15, -4, 19, -6, 53, -10, -6, 61, -7, 39, 40, 20, -9, 18, -34, -25, -2, -14, 19, -31, 17, 37, -12, 31, -25, 47, 46, 21, -38, -22, -1, 0, 9, -21, 9, -20, 5, 51, 6, 1, 0, -11, 37, -28, -3, -10, -35, 0, 24, -47, 26, -37, -68, 9, 17, -46, -15, -6, -33, 38, 44, -24, 16, 19, 3, -21, -27, 61, 39, -1, 43, 11, 12, 3, 19, -29, -19, 15, 5, 3, -80, -25, -21, -9, 40, -8, 21, 69, -18, -8, -12, -22, -17, -6, -36, 52, -14, -30, 17, 48, -5, -57, -38, -8, -29, 25, 40, -18, 43, 27, -15, 3, 19, -13, -15, 0, 62, -41, -25, 22, 0, 37, 16, 11, 9, 23, -6, 35, 26, -31, 33, 17, 11, -27, 34, -16, 40, -1, -19, -37, -22, -40, 36, -30, -20, 89, 3, -2, 31, -3, -11, 37, -38, -30, -32, -74, -5, -33, 8, 34, -50, 9, 18, -1, 0, 28, 75, 0, -31, -53, -32, 7, 12, 25, 12, -15, -15, 2, -29, 24, -24, 3, -24, 18, 24, -23, 61, 0, 31, -30, 18, -47, 16, 23, 20, -24, -23, 77, -9, -22, -59, 2, -46, 46, -49, 0, 17, -31, -5, -36, -5, 75, 47, -28, -57, -36, 12, 1, 5, 16, 15, 2, 39, -29, -32, 6, -12, 82, -9, 10, 15, -47, -58, 52, 59, -14, -34, 19, -22, 6, -7, 21, 18, -26, -3, -11, -16, -50, 4, 22, 8, 7, 3, -25, 18, -30, 23, 8, 43, -42, 51, 8, -42, -5, -28, -25, 21, 45, 47, 67, -46, 40, 19, -58, 21, 33, 48, -33, 5, -65, 0, -25, 6, 9, 9, 10, -13, -25, 32, -15, -7, -18, -33, -17, -26, 13, -2, -13, -34, 32, -32, 26, -49, -77, -57, 44, -10, 48, -49, -37, 8, -1, -40, -25, -48, 63, 22, 25, 2, 39, -7, 16, -18, -31, 22, -7, -43, -10, 23, -14, -6, -6, -2, -6, 41, 0, -16, 26, -73, -7, -7, -4, 28, 28, -23, 0, -48, 21, 5, -44, -40, -48, -12, 31, -29, 28, 9, -20, -5, 0, -43, -9, -30, -5, -8, -6, -8, 27, -17, -32, -11, 60, 34, 44, -62, -28, 16, 30, 14, 2, 12, -7, 12, -29, -19, -10, 17, 16, 12, 40, 46, 7, 4, -4, -12, 17, 53, 35, 18, -59, -2, 30, 24, 9, 35, 7, -19, -18, -14, 21, 39, 0, -71, 6, -28, -13, -6, 35, -13, -49, 37, 29, 19, -44, 31, 0, -52, 11, 21, -16, -61, -21, 31, 14, 25, -30, -11, 11, 31, 22, -5, -44, -9, -27, 55, -6, 34, -2, 1, 26, -62, -6, 20, 16, 9, -43, 7, 35, -42, -3, 21, 9, 36, -53, 37, -8, 36, -13, -41, -50, -4, 15, -14, 39, 7, 17, -29, -34, 43, 14, -39, -20, 59, -31, -3, 1, -6, -45, 60, 29, -34, 10, 10, 31, -4, 51, 52, -31, 30, 0, 40, 3, 17, -13, -19, 11, 19, 31, 14, 35, -26, 25, -24, -56, -18, 8, -83, 26, -15, 51, -23, 14, -32, -4, 32, -18, 21, 6, -19, 87, -19, -27, 2, 0, -42, -35, -29, 25, -1, -29, 1, -12, -69, 4, 9, 18, 33, -57, 27, -55, -20, 47, 11, -11, 30, -42, -18, 67, 48, 4, 23, 12, -1, 35, 33, 6, 8, -55, 24, 27, -1, -15, -1, 11, -23, 39, -3, -6, -51, 34, -35, -20, -19, 0, 38, 21, -21, 21, 21, 10, 0, -22, 10, -26, 31, 19, 12, -21, -37, 10, 3, 4, -15, -73, 28, -45, 1, -14, 2, -65, 22, 11, 35, -8, 37, -19, 10, 49, -22, -49, -17, 14, -18, 9, -18, -35, 3, -7, -54, -43, 15, -45, 39, 4, 33, 19, -15, -14, 5, -11, 46, -8, -14, 9, -22, -9, 8, -14, 1, 3, 8, -6, -16, 34, -23, 27, -39, -46, -1, -45, 21, -14, 29, 48, -63, -9, 13, 46, 12, -84, 19, 29, -50, 20, 47, -47, 30, -5, -9, -21, 29, 35, -21, 24, 4, -42, 17, 26, -31, 5, 70, -19, 18, -21, 35, 16, -1, 18, 25, -53, -7, -14, -5, 1, 22, 26, 32, -31, -36, 13, -21, -10, 11, 15, 22, 19, 0, 15, -73, -2, 0, -8, -13, -22, 43, -40, 52, -15, 42, 61, -48, -8, -39, -49, 29, -12, 7, 9, 21, 4, -44, 31, 24, -44, -5, 12, -14, -14, -4, -30, 10, -53, 9, -4, -26, 11, 20, 38, 4, 26, -29, 21, -64, -16, -27, -69, -39, -55, -53, -6, 2, -20, -24, 3, -61, -30, 15, -22, -7, 32, -16, 14, -1, 65, 35, 8, 7, -53, -4, 48, 14, -12, -18, -16, 63, -32, -49, 17, 14, 18, 18, 56, 4, 28, 55, -46, -24, -33, -26, 49, 25, 0, -21, 0, 22, 0, 20, 7, -36, 5, 48, 25, -8, -11, -19, 47, -42, 48, 71, -12, -23, -28, 8, -25, 0, -29, -45, 33, -1, -11, -19, -47, 30, 18, 9, -2, -1, 16, 55, 49, 34, -69, -52, -43, 65, -29, 34, 20, -16, -7, -57, -10, 43, 24, 10, -31, -40, -24, 14, 34, -48, 24, 18, 12, -61, 0, 12, -21, -2, 5, 25, -7, -22, -32, 17, 63, -15, -6, -34, -7, -22, -22, -7, 36, -3, 9, 2, -33, -50, -13, 18, 29, 27, -39, -17, -29, 13, 21, -14, 16, -6, 29, 45, -22, 5, 8, 30, 26, 35, -15, -7, 4, -27, 6, -1, 3, -5, -26, -26, -27, 44, 11, -1, 14, -18, -14, -20, -28, 23, -40, 1, -15, 9, -59, 57, -15, 40, -9, -19, 4, -6, -31, 15, 4, 18, -34, -26, -12, 32, 1, 4, -58, -24, 15, -15, -13, -25, 47, 37, -96, -28, -10, -13, 53, 17, 56, 35, -34, -6, 51, 6, -9, 32, -28, 33, -18, -23, -18, -37, 42, -16, 9, -29, 58, 2, 48, -17, -15, 80, 16, 10, 0, -13, -22, 21, 20, -7, -70, 34, -27, 13, -19, 18 ]
R. M. Maher, P. J. Judge Kaufman’s opinion deals adequately with all but one of the issues defendant raises in his appeal from his conviction for first-degree criminal sexual conduct, MCLA 750.520b(l)(e); MSA 28.788(2)(l)(e). Unlike Judge Kaufman, I cannot conclude that the court below committed reversible error when it limited cross-examination of the complainant under MCLA 750.520j; MSA 28.788(10). At defendant’s trial, his counsel was able to elicit from the complainant that an act of sexual intercourse was not something new to her. An objection from the prosecutor, sustained by the court, terminated that line of questioning. The court, although expressing serious doubts about "any statute that eliminates for the trier of the fact * * * the credibility of the parties involved”, correctly ruled the questioning of the complainant about her prior sexual activity with persons other than defendant was prohibited under MCLA 750.520j; MSA 28.788(10). Defense counsel registered his objection to the prohibition against inquiry into the complainant’s prior sexual activity. The challenged statutory provision reads: "(1) Evidence of specific instances of the victim’s sexual conduct, opinion evidence of the victim’s sexual conduct, and reputation evidence of the victim’s sexual conduct shall not be admitted under sections 520b to 520g unless and only to the extent that the judge finds that the following proposed evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value: (a) Evidence of the victim’s past sexual conduct with the actor. (b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease. (2) If the defendant proposes to offer evidence described in subsection (l)(a) or (b), the defendant within 10 days after the arraignment on the information shall file a written motion and offer of proof. The court may order an in camera hearing to determine whether the proposed evidence is admissible under subsection (1). If new information is discovered during the course of the trial that may make the evidence described in subsection (l)(a) or (b) admissible, the judge may order an in camera hearing to determine whether the proposed evidence is admissible under subsection (1).” Since defense counsel did not attempt to offer either opinion or reputation evidence of the complainant’s sexual conduct, only the restriction on evidence of specific instances of the complainant’s sexual conduct is at issue in this appeal. Defendant contends that the statutory restriction on evidence of complainant’s sexual activity denied him his constitutional right of confrontation. Quoting his brief, "[djisallowing cross-examination destroyed one of defendant’s most effective means of attacking her veracity”. A legislative prohibition against evidence of a certain class, even for the worthy purpose of preventing witnesses from suffering embarrassment on the stand, may not limit the Sixth Amendment right to confrontation guaranteed all defendants. Davis v Alaska, 415 US 308; 94 S Ct 1105; 39 L Ed 2d 347 (1974). In Davis, a key prosecution witness may have been under pressure to fabricate because of his juvenile probationary status, but an Alaska statute prevented defense cross-examination about that status. The Supreme Court held that following this statutory restriction on cross- examination produced an error of constitutional magnitude. "In this setting we conclude that the right of confrontation is paramount to the State’s policy of protecting a juvenile offender. Whatever temporary embarrassment might result to Green or his family by disclosure of his juvenile record — if the prosecution insisted on using him to make its case — is outweighed by petitioner’s right to probe into the influence of possible bias in the testimony of a crucial identification witness.” 415 US at 319. Similarly strong is language in Chambers v Mississippi, 410 US 284, 295; 93 S Ct 1038; 35 L Ed 2d 297, 309 (1973): "The right of cross-examination is more than a desirable rule of trial procedure. It is implicit in the constitutional right of confrontation, and helps assure the 'accuracy of the truth-determining process.’ Dutton v Evans, 400 US 74, 89 [91 S Ct 210; 27 L Ed 2d 213] (1970); Bruton v United States, 391 US 123, 135-137 [88 S Ct 1620; 20 L Ed 2d 476] (1968). It is, indeed, 'an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal’. Pointer v Texas, 380 US 400, 405 [85 S Ct 1065; 13 L Ed 2d 923] (1965).” Davis and Chambers are clear; legislative or judicial attempts to prevent meaningful cross-examination are constitutionally unacceptable. I cannot see, however, how the trial court’s obedience to the statute impaired in any significant way defendant’s cross-examination of the complainant. Defendant’s inability to explore the complainant’s sexual past, in order to "attack her veracity”, was inconsequential. An early Michigan case, reviewing a conviction for statutory rape, upheld the exclusion of cross- examination about chastity. "Lack of chastity cannot be used to impeach the credibility of a female witness.” People v Mills, 94 Mich 630, 637-638; 54 NW 488 (1893). See also, People v Connelly, 157 Mich 260; 122 NW 80 (1909). Not long afterwards, however, the Supreme Court held that it was in the discretion of the trial court to allow a defendant in a murder trial to be cross-examined about her chastity. People v Cutler, 197 Mich 6; 163 NW 493 (1917). People v Mills, supra, was criticized as being inconsistent with many Michigan decisions, both criminal and civil, that authorized the questioning of a female witness about her chastity. Recent decisions, in upholding the restriction of cross-examination of a rape complainant about her chastity, emphasize the discretion left to the trial court. People v Whitfield, 58 Mich App 585; 228 NW2d 475 (1975), People v Sturgis, 35 Mich App 380; 192 NW2d 618 (1971), People v Weems, 19 Mich App 553; 172 NW2d 865 (1969). These cases indicate a proper skepticism for the view that sexual activity can be equated with moral character and thus with testimonial reliability. In People v Whalen, 390 Mich 672; 213 NW2d 116 (1973), the Supreme Court had little tolerance for the prosecutor who cross-examined defendant’s alibi witnesses about their lesbian relationship: "It [the cross-examination] did no more than put in front of the jury the fact that he, the prosecutor, personally felt these witnesses to be of disreputable character and unworthy of belief.” 390 Mich at 686. The inability to impeach a witness by showing a lack of chastity was at one time a minority position, although a strong one. Anno: Cross-examination as to sexual morality for purpose of affecting credibility of witness, 65 ALR 410. Modern codes of evidence allocate no place among the methods of impeachment for cross-examination about unchaste conduct. Model Code of Evidence, rule 106; Uniform Rules of Evidence, rule 608; Federal Rules of Evidence, rule 608; Proposed Michigan Rules of Evidence, rule 608. Insight into the sexual mores of a witness is rarely a help to a jury in determining if the witness is disposed towards untruthfulness. There is no reason to consider an unchaste witness as mendacious. Dean Ladd observed: "History contains the names of many highly respected persons whose honor in telling the truth would not be questioned and yet whose sex life would hardly be the model for future generations. The frank novels and biographies of the present day disclose habits of living, not commendable or in conformity with legal and ethical standards, and yet not representative of people whose word under oath would be regarded as bad.” Ladd, Credibility Tests — Current Trends, 89 U Pa L Rev 166, 181 (1940). In a very recent opinion, People v Bouchee, 400 Mich 233; 253 NW2d 626 (1977), the Supreme Court found prejudicial error in cross-examination of defendant and his wife about the legitimacy of their children. "We cannot agree with the apparent assumption of the trial court, and the express holding of the Court of Appeals, that the legitimacy of the Bouchees’ four children related to the truthfulness or untruthfulness of the defendant or his wife as witnesses.” 400 Mich at 253. Defendant had no complaint when the trial court, following the statute, stopped a line of questioning that would have produced no answers relevant to the complainant’s character for truthfulness. Since consensual intercourse appears inconsistent with the charge of first-degree criminal sexual conduct, it is appropriate to consider briefly whether the trial court, in following the statute, impermissibly limited defendant from substantiating his version of his encounter with the complainant. An attack on a rape complainant’s character for veracity by cross-examination about her sex life may produce answers that are misused in support of a claim that the sexual conduct under scrutiny was consensual. It is therefore helpful to distinguish between evidence that is offered to demonstrate the complainant’s disposition towards untruthfulness and evidence offered to show the improbability of the complainant’s story that defendant forced her to engage in sex. In Harris v Neal, 153 Mich 57; 116 NW 535 (1908), a civil action brought against the rapist by his victim, the court made this careful distinction. The question under review was whether, in a civil action, evidence of plaintiff’s bad reputation for chastity was " 'material as bearing upon the probability of plaintiff’s testimony’ ”. "In the interest of clearness we think it proper for us to distinguish the question raised by defendant’s contention from certain other questions which often arise. The question is different from the one which arises when a female witness upon cross-examination for the purpose of affecting her credibility is asked questions imputing lack of chastity. While the law in such cases is not thoroughly settled, this much may be safely stated, tht the trial court has authority to exclude such testimony (Knickerbocker v Worthing, 138 Mich 224 [101 NW 540 (1904)]) and that the answers of the witness are conclusive. The question before us is also to be distinguished from the question which arises when it is sought to impair the credibility of a witness by proof of reputation. In such a case the proof of reputation is confined to reputation for veracity. Leonard v Pope, 27 Mich 145 [1873]; People v Abbott, 97 Mich [484] 488 [56 NW 862 (1893)]. The principles governing the admissibility of testimony in the two classes of cases above mentioned have no application to the question before us, and if they had, they would not sustain defendant’s contention. The rule invoked by defendant’s counsel is a different rule. He invokes the rule applied by this court in People v Ryno, 148 Mich 137 [111 NW 740 (1907)]. That was a criminal case wherein respondent was convicted of rape. There we held: 'The bad reputation of a prosecuting witness above the age of consent for chastity prior to the date of the offense charged’ was admissible as tending to prove that the intercourse may have been had by consent, and we reversed the judgment because this rule was violated by the trial court.” 153 Mich at 58. As Harris indicates, the cases have recognized that not all evidence dealing with a complainant’s sexual history is equally valuable when consent becomes an issue at trial. While evidence indicating that the complainant is a person of "indiscriminate promiscuity”, Comment, 43 U Chi L Rev 613, 624 (1976), may tend to prove her consent to sex on a particular occasion, a complainant’s willingness to engage in sex with certain partners does not make it more likely that she consented in the incident for which defendant stands charged. "There are an unspecified number of reasons why the prosecutrix may consent to sexual relations with a third person but refuse defendant. The totality of the circumstances becomes significantly dissimilar so that a continuance of consensual behavior becomes unreliable.” People v Mitchell, 44 Mich App 679, 690; 205 NW2d 876 (1973), (dissenting opinion of Bronson, J.) lv granted, 395 Mich 752 (1975). In an early Florida case, Rice v State, 35 Fla 236; 17 So 286 (1895), a defendant convicted of rape alleged error in the trial court’s refusal to permit the complainant to be cross-examined about prior acts of intercourse. The Florida Supreme Court answered: "The fact that a woman may have been guilty of illicit intercourse with one man is too slight and uncertain an indication to warrant the conclusion that she would probably be guilty with any other man who sought such favors of her. If she was a woman of general bad reputation for chasitity, or had been guilty of acts of lewdness with the defendant the case would be different. In the first instance the evidence would bear directly upon the question as to whether such a woman would be likely to resist the advances of any man; and, in the second, as to whether, having yielded once to the sexual embraces of the defendant, she would not be likely to yield again to the same person.” 35 Fla at 238-239. The Michigan approach is similar. Citing a case relied on in Rice, supra, the Supreme Court wrote in People v McLean, 71 Mich 309, 312; 38 NW 917 (1888): "Evidence that the prosecutrix is a common prosti tute, or that her character for chastity is bad, is admissible, and particular acts of unchastity or sexual intercourse with the defendant may be shown; but evidence of such acts with a third person is not admissible. McDermott v State, 13 Ohio St 332 [1862].” While some jurisdictions do permit a defendant to delve indiscriminately into a complainant’s sex life, they are the minority. Anno: Admissibility in rape cases of evidence of previous unchastity, or reputation for unchastity, of prosecutrix, 140 ALR 364. "In this country, while the prosecutrix may be questioned as to acts of intercourse with the accused in order to disprove the allegation of force in a rape case, there is doubt as to whether questions as to her intercourse with other men are proper. In numerous cases, it is held that, while the chastity of the prosecutrix is in issue and may be attacked by evidence of her general bad character for chastity, it cannot be assailed by evidence of specific acts of unchastity with other persons than the accused.” 4 Jones on Evidence (6 ed), §25:16, pp 154-155. See also FRE 404; proposed MRE 404. Defendant did not attempt to produce witnesses to testify about the complainant’s reputation for chastity. Had he done so, and been denied, a serious question about the statute’s constitutionality would have to be faced. See Commonwealth v Manning, — Mass —; 328 NE2d 496 (1975). But here, where defendant only complains of his inability to attack the complainant’s veracity with cross-examination about her sexual history, there is no basis for holding the statute unconstitutional. Affirmed. V. J. Brennan, J., concurred. People v Bastian, 330 Mich 457; 47 NW2d 692 (1951), People v Smallwood, 306 Mich 49; 10 NW2d 303 (1943), and People v Cowles, 246 Mich 429; 224 NW 387 (1929), all involved a defendant’s ability to discredit a rape complainant’s testimony by showing her to be a person obsessed with sex who only imagined a sexual episode with defendnat. In all three cases the charge was statutory rape, where consent was not at issue. The testimony erroneously excluded was offered to buttress admitted testimony from medical experts that "the mind of the girl was so warped by sexual contemplation and desires as to lead her to accept the imagined as real or to fabricate a claimed sexual experience”. People v Cowles, 246 Mich at 431. Proof of mental abnormality is an accepted means of impeachment. 3A Wigmore on Evidence (Chadbourn Rev), § 934a; Comment, 59 Yale LJ 1324 (1950). It is different from impeachment by showing a lack of chastity.
[ 26, -19, 10, 6, 24, -20, -30, -31, -62, 42, -17, -17, 54, -12, 15, -26, 1, -9, 14, -66, 53, 16, 39, 91, -10, -22, 0, 31, -9, -48, 16, -5, -15, -46, 9, -34, 23, 77, -4, 32, 47, 3, 8, -12, -68, 33, 0, -9, 13, 2, 25, -38, -7, -7, -2, -29, 3, 64, 31, 7, -23, 16, -50, -29, 25, -29, 3, -6, 0, -31, -13, 14, -57, -34, -25, -14, -26, 20, 47, 31, 18, 7, 32, 22, 16, -10, 6, -10, 8, 30, -27, -37, -14, -12, -34, 7, 30, -52, 63, -12, 0, 0, -18, -48, -14, 60, -56, 12, 40, -24, 31, -42, -31, -61, -32, -60, 13, 82, -27, -82, 19, 57, 51, -1, 1, -29, 52, -10, -17, -11, -38, 11, -28, -54, 28, -31, 2, 37, 38, 33, 17, 11, 14, 19, 12, -43, -14, -30, 11, 38, 17, -4, 7, -3, 3, -39, -33, -69, 41, 1, -11, 18, -33, 10, 20, -8, 15, -42, 55, -49, 38, 31, 41, 49, -10, -19, -18, -30, -46, -26, -53, 28, 10, -5, -10, 12, -38, -11, -26, 30, -29, -12, 4, -2, 93, 18, -14, 69, 51, -33, -28, 6, 10, 26, 23, -32, -25, -44, -35, -37, -4, 31, -23, -28, 10, -89, 22, 30, -30, 50, -1, -36, 26, -37, -59, -1, -16, 76, 3, -22, -23, 26, -63, -7, -53, 13, 30, 22, 34, 15, -17, 45, 4, -38, -33, -3, -9, -17, 11, -28, 21, -45, 39, 42, -43, -23, -24, 18, -68, -5, -1, 21, -9, -9, -39, 1, -11, 16, -15, 11, 22, -5, 29, 18, 19, 10, -8, -2, -44, 28, -11, 2, -4, 22, -29, 18, -7, 30, 63, -14, 30, -15, -42, 2, 95, 8, -29, 18, -38, 2, 62, -40, 55, -32, 0, -38, 33, 22, -13, -2, 5, -5, 0, 74, 14, -17, -16, -27, 52, -20, -25, -54, -29, -50, -4, -22, 43, -74, -24, -24, -14, 19, 7, 65, 69, -3, -20, 16, -21, 46, -16, -59, -11, -21, -2, 3, 12, 25, 17, -11, 24, 28, -9, 33, -56, -10, -32, -31, 39, -35, 2, 12, -10, -38, 30, 13, 5, -8, 33, 19, -24, -92, -26, 6, 10, -20, 34, -9, 27, -7, -26, 6, 38, -24, -19, 41, -11, -38, 6, -12, 8, 7, 8, 17, -2, 0, 9, 26, 62, -20, -29, -31, 72, 12, -32, -33, -27, -14, -11, 4, -15, 77, 7, 36, -26, -4, 2, -27, -6, -3, -5, 9, 28, -11, 49, -23, -32, -15, 84, -14, -52, 3, 7, -68, -25, 28, -9, 6, -24, 22, -50, -3, -43, 31, -47, 5, 42, 17, -18, -31, -4, 35, 7, -17, -20, 52, -15, 17, -11, 13, 29, -30, -11, -32, 51, -21, -29, -13, -29, -16, 69, 0, 54, 34, -17, 46, -6, 50, -9, -29, 30, -19, 59, -10, 15, 31, 7, -30, 43, 13, -34, 7, -32, 15, -69, 50, 23, 6, 30, 8, -5, -10, 29, 6, 32, -9, 47, 23, 5, 10, -26, 10, -10, 47, 13, -33, 32, -11, -10, -19, 9, -50, 45, 23, -35, -31, -42, -30, -28, -22, 39, 31, -15, -27, 23, 38, -11, -67, 17, -25, -43, -4, -5, -35, 38, -4, 21, -3, -39, 67, 17, 13, 5, 9, 2, 6, 17, -28, -16, -34, -52, 9, 26, 28, 38, 12, -78, -64, 6, -24, 35, 15, -13, -2, -10, 7, 50, 40, 4, 56, 1, 0, -17, 3, -49, 4, -10, -20, 28, -55, -18, 14, 29, 11, 9, -48, -26, -20, -12, 14, 35, 34, -38, -10, 18, 15, -4, 57, -2, -10, 32, 16, 7, -13, -4, -55, -10, 30, -30, 36, -54, 21, -19, -68, -5, 21, -41, 26, 38, -8, -37, -48, -12, 19, 49, 22, -17, -5, -13, -28, 32, 5, -11, 25, 51, 19, 58, 18, -23, -74, 49, 25, 39, -38, 29, 4, -48, 34, 28, 15, 19, -28, 10, 19, 13, 18, 14, 15, -25, -42, -38, -6, 7, 48, 27, 9, -10, -40, -20, -17, -36, -54, 22, -50, 33, 52, -29, 34, 17, -15, -1, -4, 30, -10, 40, 10, -6, 26, -13, 3, -18, 16, -31, -5, -3, -30, 1, -49, -1, 48, 2, 75, -8, 20, 14, -16, -42, -12, -38, 1, 20, 9, 13, -33, 31, -1, 40, 79, 18, -31, -2, -8, -23, 6, -14, 58, 0, 22, 27, 15, -11, 18, 27, -49, -40, -4, 8, -34, 39, 12, -23, -23, 0, 31, 9, 62, 56, -59, -36, -13, 12, -1, -19, -37, 0, 11, 51, 3, 26, 0, -7, -87, 57, 21, -80, 46, 11, 27, 58, -15, -18, 48, -54, 16, 2, -37, -17, -37, 24, 33, 26, 4, -40, 55, 54, 20, -30, -31, 13, 30, -11, -37, -12, -38, -9, 15, -49, -14, 58, -1, 17, -23, -5, 9, -22, -1, -11, -67, -12, -89, 11, -6, -37, -12, 21, -21, 25, -15, 59, -47, 27, 9, 4, 47, 34, -26, -3, 21, 0, -41, 16, 30, 12, 21, 28, 0, -26, -26, 28, 38, 53, 29, -18, 14, -8, -25, -52, -2, 8, 19, -19, 59, -10, -8, 9, 48, 2, -13, 66, -64, -5, -16, 2, 8, 9, 2, -12, -18, -62, 59, 5, -38, -17, -51, -6, -16, 17, 2, -1, -33, 21, 26, 50, -11, -38, 2, 0, 30, -23, -41, -26, -38, 9, 47, 76, -11, 26, -17, -30, 20, -19, 12, 39, 26, 50, 30, -34, -2, 15, -24, -14, 45, 12, 39, 5, 21, -33, -49, -38, 2, 44, 33, 5, -27, 12, -24, -41, -5, -31, -9, -23, -25, 0, 39, -14, 33, -93, -13, 2, -27, -11, -2, -19, 3, 3, 12, 34, 28, -83, 4, 8, 44, -54, 32, -9, -6, -28, 34, -9, -6, 22, -43, -32, 4, -27, 11, 19, -27, -11, -43, 20, -33, -7, -25, -7, 34, -46, 49, -17, 1, 53, -93, 10, 27, -37, -15, -13, -38, 0, -33, -22, 65, 10, -11, 0, 2, 3, -36, -8, -17, 44, 32, 40, 33, -40, -4, 41, -36, -5, -9, -28, 38, -9, -1 ]
D. F. Walsh, P. J. Defendant was charged with armed robbery. MCLA 750.529; MSA 28.797. He was tried by jury and convicted. He appeals, assigning as reversible error the trial court’s denial of his motion to require the prosecutor to produce certain res gestae witnesses. No motion for new trial was filed in the trial court prior to the filing of defendant’s brief on appeal. In People v Robinson, 390 Mich 629; 213 NW2d 106 (1973), the Supreme Court made the filing of a motion for new trial a mandatory prerequisite to the raising of the failure to produce issue on appeal. "In appeals filed after this opinion is published, a defendant desiring reversal or a new trial because of a failure to produce an unindorsed or an indorsed witness shall, before filing his brief on appeal, move the trial court for a new trial.” (Emphasis added.) People v Robinson, supra, at 634. Defendant argues that since he made a motion for production of the missing witnesses at trial and the trial judge made a ruling on the sufficiency of the efforts made by the prosecutor to identify and/ or produce the witness, the requirements of Robinson have been satisfied. We disagree. The purpose of the Robinson rule is to prevent the ordering of what may be "useless” new trials. People v Robinson, supra, at 633. Specific directives relating to the conduct of the hearing on the motion for new trial were embodied in the rule to insure the desired result. First, the prosecutor is required to produce the witness and the witness must be examined regarding his knowledge of the crime. From this the court can determine whether any prejudice resulted to the defendant from the fact that the testimony of the witness was not presented at trial. It may be that the testimony would be totally corroborative of the prosecution’s theory of the case; or it may be that the testimony would be merely cumulative; or it may be that the witness is unable to testify as to any facts which are in any way probative of the guilt or innocence of the accused. In such a case, a new trial would not be required even if it could be shown that the prosecutor had failed to exercise due diligence in his efforts to produce the witness at trial. Second, if the prosecutor is unable to produce the witness, he must explain why he cannot do so. From this the court can determine whether the witness could be produced at a new trial if one were ordered. It would certainly be an exercise in futility to order a new trial if the missing witness could not be produced. It is only when the procedure directed in Robinson has been followed, therefore, that the appellate court will have a proper record to review and a reasonable basis from which to determine whether a new trial is required to assure that all testimony which may be favorable to the defendant and which can be produced is presented to the trier of fact. When this procedure is not followed, the appellate court cannot properly perform its reviewing function, even in cases like this one where the failure to produce issue was raised at trial and the court has ruled on the sufficiency of the efforts of the prosecutor to identify and/or produce the missing witness. See, People v Ebejer, 66 Mich App 333, 344; 239 NW2d 604 (1976). Even if we were to agree with the defendant in this case (which we are not inclined to do) and order a new trial because of the prosecutor’s failure to exercise due diligence in his efforts to identify and produce certain res gestae witnesses, we would have no way of knowing from the record before us whether the missing witnesses could be produced or whether their testimony, if they were produced, would be in any way favorable to the defendant. Thus, we may well have ordered the "useless” new trial which the Robinson rule seeks to prevent. We conclude, therefore, that the rule of People v Robinson, supra, precludes us from considering a failure to produce issue unless a hearing has been conducted in the trial court in accordance with the directives of Robinson. We are aware of certain decisions by other panels of this court in which a contrary conclusion is reached. Insofar as those decisions are inconsistent with our holding here, we decline to follow them. The defendant’s conviction is affirmed._ In indicating what should be accomplished at the hearing on the motion for new trial, the court stated: "The prosecutor shall produce or explain why he cannot produce the witness or, as the case may be, why he did not indorse and produce him at the trial. If the witness is produced at the hearing, he shall be examined regarding his knowledge of the crime. If a new trial be denied, the judge shall state his reasons.” People v Robinson, 390 Mich 629, 634; 213 NW2d 106 (1973). People v Schwartz, 62 Mich App 188, 193-194; 233 NW2d 517 (1975), People v Wynn, 60 Mich App 636, 640-641; 231 NW2d 269 (1975), People v Jones, 65 Mich App 619; 237 NW2d 584 (1975).
[ 24, 8, -14, -10, 32, -3, -13, -30, -68, 72, -6, -51, 4, 3, -13, -9, -15, -48, 36, -46, -3, -8, 26, -20, 17, -27, -12, 53, -9, -2, 28, -8, -49, 24, 9, -22, 18, 24, 3, 57, 40, -42, 9, 30, -83, -26, 13, 22, 31, -5, 41, 17, -48, 30, -26, 0, -12, 27, 14, 27, -22, 30, -22, -24, -64, -26, -16, -58, -50, -33, -40, 24, -2, 17, -21, -16, -9, -16, 12, 31, 17, 3, 20, -20, 0, 19, 14, -73, -19, -29, -30, 24, -59, 24, -10, -9, 43, -28, 37, 5, 16, 59, -43, -61, 0, -18, -58, -3, 19, -18, 52, 0, 30, -6, -33, -24, -11, 10, -46, -58, 12, 46, 67, 23, 47, 22, 63, -46, 32, -1, 24, 39, -46, 9, -13, -4, -6, 5, -26, -25, -8, 14, -4, -39, 13, -24, -29, 10, -19, 63, 14, -14, -47, 43, 2, -38, -48, -56, 15, 14, -3, 5, -34, -44, -15, 32, 11, -57, 17, -27, -23, -10, 2, 26, 5, 31, 47, -82, -10, -54, 33, 68, -4, -40, 18, -8, -59, 47, -1, -43, -18, 9, -14, -14, 62, -7, -28, -25, 58, -31, -18, -24, 2, 5, -24, 45, -4, -73, 8, 42, -58, -20, -64, -25, -15, 4, 19, 8, 17, 80, -33, 11, 35, -4, -2, 54, 29, 0, -4, 47, 22, 45, -44, -21, -39, -1, -43, -29, 22, 48, 27, -13, 33, -58, -15, 40, 37, -3, -20, -41, 56, 17, 17, -39, -32, -53, -10, -6, -58, 5, -18, 78, 12, 22, -36, 9, 11, 45, -21, 23, -11, -51, 5, 44, 10, -26, 26, 0, -11, 24, -16, 46, 2, -8, -63, -37, -55, 37, 27, 35, 57, -7, -28, 58, 27, 51, 27, 47, -72, -9, 38, 6, -4, -17, -10, -18, -21, -35, -50, -32, -27, 17, 35, -19, 13, -11, -52, -38, 36, -10, -26, -19, 0, -14, 77, 13, 38, -45, -5, 8, -15, 8, 30, -11, 32, 12, 18, 0, -24, 28, 12, -52, -32, -39, -26, 7, 6, -35, -44, 22, 11, 15, 1, -23, 9, -35, 9, -63, 21, -39, 54, -15, 13, -47, 24, -8, -18, -10, 20, 30, -10, -37, -23, -45, -14, -48, 17, 27, 34, -3, -22, 35, 1, -36, -4, 17, 18, 11, -28, 7, 4, -53, 19, -67, -42, 77, -49, 5, 31, 7, -52, 33, -9, 26, -18, 22, -40, 0, 11, 8, 25, 55, -9, 68, -17, -51, -7, -20, 5, -13, 60, -12, 28, -42, -35, 0, -32, 3, 37, -63, -17, 12, 22, -68, 18, 53, -3, -4, 29, -41, -56, -30, -88, 13, -8, 68, -22, 0, -2, 0, -19, 9, -3, -13, 15, -24, 26, 34, 31, 20, -8, -9, -66, -20, 19, -27, -44, -12, 11, 5, 30, -28, 39, -6, -74, -6, -46, 29, 22, 29, 35, 70, 1, 4, -24, -15, 8, -38, 40, -12, 11, 39, -28, 6, -2, -20, -21, 3, -14, 11, -30, -34, -12, 10, 0, 43, 59, -48, 36, 51, 23, 27, -6, -17, -15, -21, -17, 19, 20, 20, 16, -7, -35, 14, -64, 12, -19, -4, 29, 28, 87, -2, 32, 33, -1, 21, -35, -30, 5, 35, -13, 52, -10, 25, 31, 17, -6, -2, 3, -25, 55, 44, 26, 15, -20, -7, 15, 43, 15, -23, 23, 38, 72, 94, 9, -15, -13, 7, 14, 10, 69, 51, -18, 7, -25, 22, 59, 74, 12, -20, -14, 33, -34, -48, -19, -22, 0, -21, 30, 15, -67, 9, 36, -7, -45, 3, -21, -20, 8, -20, 6, -1, -68, -18, 25, -30, 31, 26, 27, -27, 26, -10, -48, -2, 15, -28, -1, 49, -39, 54, -25, 4, -12, -15, 33, -7, 12, 36, 21, -22, 14, -4, -26, 33, -46, 6, -4, -24, -25, 6, -43, 51, -16, -32, 29, -36, -3, 26, 24, 0, 0, 53, 12, -31, 18, 3, 12, 33, 32, -3, -22, -40, -62, -34, 17, 49, -29, -45, 34, 15, -4, -13, 16, 8, -26, 53, 16, -1, -8, -37, 7, -77, -21, 30, -18, -18, -35, 49, 4, -31, -20, 34, 3, -12, 6, -33, 50, 20, 19, -9, 17, -36, 40, -8, 17, -10, -2, -27, 24, -41, -20, 58, 28, -87, 34, 0, -40, -5, 24, 7, 31, 8, 39, 31, 5, 52, 59, 12, 58, 5, -24, 7, -47, 19, 1, 39, 9, 4, -24, 25, -6, -26, 21, -17, 5, 32, 16, -32, 30, 6, 28, 2, -24, 37, -49, 38, 24, -51, -28, 12, 34, 13, -3, -61, -27, 23, 13, -52, 52, 20, -84, -58, 28, -3, 6, 33, 34, -41, 54, 14, -1, -6, -3, 39, 22, 3, -50, 33, -43, 21, 16, -24, -30, 77, 13, 6, -1, -33, 16, 19, -8, -33, -28, -36, 28, 0, 26, 60, 20, -44, 51, 5, -31, 12, -23, -11, 5, 13, -5, -33, -32, 50, 1, -52, 3, 21, 6, -58, -38, 24, -1, -38, 16, 56, 5, -1, -7, 41, -15, 10, 9, 2, 18, 29, 4, 0, -41, 5, -18, 23, 40, 36, -23, -30, -39, -24, -34, -52, 20, 18, 7, 5, -7, -31, 18, -33, -12, -26, 6, -35, 6, -1, -32, 28, -29, 61, -28, 5, 1, 38, 58, 24, 23, 38, -6, -73, 2, -45, -33, -20, 32, 15, 49, 12, -5, -21, 46, 4, 33, 5, -23, -2, 11, -18, 67, 16, 7, -15, 6, -4, -1, 11, 21, -9, 55, -5, -30, -59, 40, -44, 14, 17, -3, -20, 58, -69, 8, -7, 0, 1, 13, -28, -10, -57, 36, -1, 48, -82, 8, -4, -22, 9, -24, -15, -57, -45, -71, -10, -21, 39, -62, -34, 0, -20, 81, 5, -13, 33, 24, -8, -22, 51, -18, 0, 40, -10, -19, -36, -24, 46, 43, -27, -17, -42, -14, 11, 2, -46, -48, 1, -21, -43, -4, -27, 28, -29, -15, -22, -15, 2, 11, 24, 26, 9, -45, 27, -35, -23, -28, 78, -5, 41, 15, 10, 24, -10, 40, 28, -101, 12, 2, -10, 45, 63, -47, -3, -3, -8, -27, -8, 9, 56, 0, 19 ]
J. H. Gillis, P. J. Plaintiff is in the business of supplying copies of printed material to scholars and libraries. Plaintiff has copied rare books, early English and American books, periodicals, doctoral dissertations and other sources onto microfilm. These microfilmed copies, called master negatives, are kept in a vault by plaintiff. Additional copies are produced upon request from these master negatives and sold to customers in microfilm or photocopy form. Plaintiff’s business was formed in 1938. In 1973, defendant, for the first time, included within its annual assessments of plaintiff’s personal property the net book value of the master negative microfilm. Plaintiff appealed to the Michigan tax tribunal the tax assessments for the master negatives for the years 1972, 1973, 1974 and 1975 claiming that the property is exempt from personal property taxation. The tax tribunal rendered a decision against plaintiff on June 17, 1976. Plaintiff appeals to this Court. Plaintiff submits two reasons for its contention that its master negatives are not subject to Michigan’s personal property tax. Plaintiff argues first that the master negatives are intangible property because the value of the property is in the information that is stored and not in the film itself, and secondly, if the master negatives are held to be tangible personal property, that they are special tools and therefore exempt from the tax, MCLA 211.9b; MSA 7.9(2). We will address the issues seriatim. Are plaintiff’s master negatives tangible personal property? Section 1 of the Michigan general property tax act, MCLA 211.1 et seq.; MSA 7.1 et seq. provides that "all property, real and personal, within the jurisdiction of this state not expressly exempted, shall be subject to taxation”. MCLA 211.1; MSA 7.1. Section 8 lists specifically the personal property subject to taxation and further includes "[a]ll other personal property not herein enumerated, and not especially exempted by law”. MCLA 211.8; MSA 7.8.' In support of its contention that the master negatives are intangible personal property, plaintiff directs us to a line of Michigan cases holding abstract books to be intangible, see Bay Trust Co v Bay City, 280 Mich 44; 273 NW 437 (1937), Loomis v City of Jackson, 130 Mich 594; 90 NW 328 (1902), Perry v Big Rapids, 67 Mich 146; 34 NW 530 (1887), Dart v Woodhouse, 40 Mich 399; 29 AR 544 (1879), and also to cases holding computer "softwear” (cards, tapes, discs, etc.) to be intangible, see District of Columbia v Universal Computer Associates, Inc, 151 US App DC 30; 465 F2d 615 (1972), Texas Instruments, Inc v United States, 407 F Supp 1326 (ND Tex, 1976), Greyhound Computer Corp v State Department of Assessments and Taxation, 271 Md 674; 320 A2d 52 (1974). Plaintiff argues that its master negatives are analogous to abstract books and computer "softwear” because "[t]hey are only valuable for the information they contain”. Perry v Big Rapids, supra, at 147. Defendant counters by arguing that plaintiffs supply of master negatives is in actuality a library and that libraries which exist for profit are subject to taxation. MCLA 211.9; MSA 7.9. Defendant rejects plaintiffs cited authority by arguing that the Michigan abstract cases are limited to abstracts and should not be extended to other materials and also that plaintiffs master negatives are not computer "softwear” and therefore do not come within the holdings of the computer cases. In view of the following quotation from the Bay Trust Co case, defendant’s theory of a judicially carved property tax exemption regarding abstracts has merit. "Since Dart v Woodhouse, supra, was decided in 1879 we have, by a continued line of authority, established the rule of property that these books and records are not the subject of taxation. This decision has, for more than 50 years, been recognized as the law concerning the taxation of abstract books and many sessions of the legislature have met in the meantime without any action upon this subject matter. The record shows that there has been no material change in the business or methods of abstracting titles to real estate and we must hold that abstract books and records are not property within the purview of our taxing statutes.” Bay Trust Co v Bay City, supra, at 48. Although defendant’s analysis “is tempting, we are not prepared to foreclose the possibility of other forms being analogous to abstracts; however, we do find that plaintiffs master negatives are not analogous. We agree with plaintiff that its master negatives are similar to abstracts and computer "softwear” in that all contain information, but we disagree that that is what controls the determination of intangibility. The value of an abstract is personal, that is, it is dependent on the work of the one who controls the information. If it is left to go out of date or is inaccurate, it loses its value. In Perry, our Supreme Court compared abstracts to survey- or’s notes, and author’s memoranda and a druggist’s recipes. Perry v Big Rapids, supra, at 147. Similarly, the value of computer "softwear” is not in the card or disc itself, but rather in the synthesization, compilation, organization and creation of the computer programs contained therein. District of Columbia v Universal Computer Associates, Inc, supra, at 617. The value is personal, Payment is made for the service and the expert knowledge. District of Columbia v Universal Computer Associates, Inc, supra, at 617-618, Texas Instruments, Inc v United States, supra, at 1342, Greyhound Computer Corp v State Department of Assessments and Taxation, supra. The value of plaintiffs master negatives is in the printed word itself. The information needs no correction or updating. In fact, the very reason that plaintiffs material is in demand is because it is in the original language and unchanged. Plaintiff has not added to the original print or paid someone with expert knowledge to systematize relevant material into a new product. The value of the information is not peculiar to plaintiff alone, but is valuable in and of itself. It is for these reasons that plaintiffs master negatives are tangible property. Are master negatives special tools? Having determined that plaintiffs master nega tives are tangible property, we now address the second issue. Plaintiff contends that its master negatives are "special tools” as defined by § 9b of the Michigan general property tax act and are therefore exempt from taxation. Section 9b provides: "(1) All special tools, as herein defined, are exempt from taxation. "(2) The term 'special tools’ means those manufacturing requisites, such as dies, jigs, fixtures, molds, patterns, gauges and so forth, as defined by the state tax commission, which are held for use and not for sale in the ordinary course of business. "(3) The exemption of special tools shall not be deemed an exclusion of the value of same from taxation when such value may enter into the valuation of inventory produced for sale.” MCLA 211.9b; MSA 7.9(2). The state tax commission, as quoted by the tax tribunal in its opinion in this case, has defined "special tools” as: "Those finished devices such as dies, jigs, fixtures, molds, patterns and special gauges used in the manufacturing function for which they are designed and/or are acquired or made for the production of products or models and are of such a specialized nature that their utility and amortization cease with the discontinuance of such products or models.” In its opinion, the tax tribunal found that plaintiff’s master negatives do not wear out or become obsolete in a short time and therefore do not come within the definition of "special tool”. Plaintiff argues that master negatives are used as a pattern to reproduce an image and are therefore similar to molds, dies and the like. Additionally, plaintiff submits that there is no requirement that the tool be short lived in order to qualify as a "special tool”, and to the extent that the tax commission’s definition contains that requirement it is erroneous. Exemption provisions are to be strictly construed in favor of the taxing agency. Evanston YMCA Camp v State Tax Commission, 369 Mich 1; 118 NW2d 818 (1962). Section 9b states that those tools classified as special tools are "dies, jigs, * * * as deñned by the state tax commission”. (Emphasis supplied.) The tax commission has defined these items. We agree with the tax tribunal that plaintiff’s master negatives do not meet the definition. Affirmed. No costs, a public question being involved. The failure of defendant to assess plaintiff for so many years was due to the failure of plaintiff to report the master negatives on its personal property statements. Plaintiff then changed its accounting system in 1973 which disclosed to defendant the existence of plaintiffs microfilm reservoir.
[ -47, 18, 11, -63, 13, 0, -25, -16, -32, 26, -48, 8, 32, 8, -8, -12, 16, 41, -10, -11, -22, -19, -52, 13, 27, -24, 26, 56, 29, -16, -26, 32, 10, 0, 38, 35, -21, 0, 15, -12, 42, 26, 4, -20, 12, 4, 60, -1, 16, -25, 0, -11, 14, -28, 58, 44, -4, -6, 49, -12, -8, 16, 43, 10, -13, 12, 19, -24, 39, -82, -10, -2, 73, 53, -41, 3, -15, 25, -1, -14, 5, 6, 1, 8, -29, 32, -37, -41, -10, -67, -6, 46, -25, 30, 48, 2, 25, 17, -26, 44, -57, 71, -5, 11, 27, -42, -39, -50, -28, -65, -6, -41, -9, 13, 40, -11, -3, -23, -21, 28, 11, 40, -21, -28, 6, -23, 8, 1, 10, 5, 48, 25, -43, 7, -24, 50, 13, 4, 6, -10, 5, 21, 0, -2, -77, 6, -18, 23, -35, -26, -24, 12, -2, 12, -11, 0, -20, 14, 48, -22, 0, 9, 5, -16, 53, -20, 15, 9, -6, -12, 29, -37, 7, 9, 43, -6, -2, 21, -26, -56, -1, 22, 55, -5, -66, -58, 0, -12, -46, -12, 50, -8, -9, -49, -55, 42, 3, 15, -17, -16, 22, -107, -7, -21, 51, 13, 69, -30, -30, 12, -35, 3, -9, -4, -14, 18, -31, -48, -26, -1, 58, 5, 7, -40, 5, 19, 2, -35, 22, 8, -74, -14, 38, -53, -54, -14, 2, 4, -7, 1, -55, -19, 14, -28, 40, 25, -13, 9, 25, 23, -4, 0, -74, -15, -24, -38, 5, -16, 2, 17, -8, 67, 5, 21, -7, 16, 18, 28, -26, 40, -94, 47, -7, 79, -12, -44, -6, 6, 4, 2, 29, -76, -20, -48, 11, 21, -31, -9, -31, 1, -29, 25, -35, 13, 0, 57, 28, -37, -3, 27, 36, -13, 13, 17, 5, -76, -24, 10, 47, -28, -14, -12, -20, -3, 53, 1, -16, -16, 53, 47, 34, 76, -25, -6, -41, 16, 93, -91, 11, 17, 20, 0, 60, -79, -11, -3, 18, -37, 32, -34, -11, 0, -1, 3, -45, 12, -23, 39, 12, -30, 36, 31, 9, 34, -8, 33, 45, 27, -38, 30, 40, 17, 52, -14, 6, -7, -20, -13, 41, -13, -16, 20, 12, 62, 0, 11, -35, 15, 0, -14, -4, -50, 24, -16, -12, 16, -8, -51, -9, -39, -65, -45, 20, 46, -38, -9, -37, -42, -42, -12, -22, 40, -11, 30, -5, -51, 40, 8, 5, 24, -4, 15, -21, -45, 4, 37, 73, -53, 33, -11, 33, 2, -82, -12, 25, -30, -41, 91, 66, 14, -18, 47, 3, -14, 42, -9, -14, 20, 18, 4, 23, -47, -6, -17, -34, -1, -37, 23, -12, -26, -1, 16, -43, 30, 4, 17, 64, -44, -2, -28, -12, 0, 35, -6, -4, -9, -22, -20, 29, 23, -25, 27, -3, -61, -20, 13, -77, -7, 4, 26, 12, 70, -30, -6, 4, 33, 7, 9, -52, -35, 18, -28, -6, 45, -5, -12, -45, 19, 38, -8, -39, -47, 3, 2, -7, 13, -23, 21, -1, -7, 28, -77, 48, 23, -18, 40, -14, -51, 1, 27, -41, 6, -10, 44, 0, 14, 11, -17, 52, 21, -48, 28, -3, 50, -2, -25, 79, 10, -43, 68, -4, -32, 36, 40, -10, 17, -21, -24, -19, 7, -56, -12, -13, 61, -48, 5, -9, 25, -2, -4, -45, 26, -12, -14, 2, -51, -35, 15, -1, 30, -18, -71, 66, -46, 5, -1, -6, -13, -8, 29, -25, -14, 62, -37, 3, -19, 27, 14, 25, 19, 31, -5, -36, 21, 26, -14, 14, -9, 10, -34, -5, 7, -5, -57, -47, 7, 19, -12, 32, -30, 8, -6, 5, 9, -36, 26, -21, -84, 33, 26, 22, -29, 9, 44, 70, 10, 6, 28, -32, 17, 5, -36, -86, 3, -18, 35, 33, -2, -20, -43, -56, -28, -18, 40, -2, -55, -2, -45, -31, 0, 2, 78, 9, 26, -11, -19, -54, -18, 23, -18, 23, -76, -39, 19, 19, 31, 54, -12, 18, 31, 4, -22, -27, -20, -12, -15, -68, 22, 74, 14, -25, 22, 8, 21, 51, 4, 67, -12, -5, -23, -24, 57, -11, -16, -9, 4, -8, 13, 14, 10, -9, 35, -56, 21, -25, -27, -9, 16, -18, 53, 28, -22, 7, 31, -45, 26, 3, 21, 7, -27, -24, -7, 38, -59, 11, -30, -3, 4, 24, 9, -31, -16, -30, -72, -14, 42, -4, -25, -29, 6, 0, 14, -51, -66, -58, 5, 31, 12, -30, 0, -33, 58, -3, 14, -19, -41, -24, 13, -9, 30, -16, -9, -45, 6, -5, 41, -6, -44, 64, -57, -14, 6, -13, 11, 24, 13, -41, 31, 57, 28, 53, 9, -3, 13, 26, 22, -3, -13, -29, -11, -3, 29, 9, -25, -27, -21, 62, 56, -24, -17, 32, 34, 44, 6, 40, -12, -65, -7, 0, 34, -23, -37, 0, -38, -31, -40, -43, -14, -11, -10, -2, 5, -55, 47, 16, 10, 39, -44, 0, 8, 58, 13, -28, -37, 42, -36, 7, 45, -8, -46, 0, -21, -43, -2, -22, 41, -54, -17, 19, -61, -17, 1, -7, 39, 26, 6, 34, -8, 48, -11, 16, 8, -24, 70, 12, -51, -27, -6, 52, 15, 33, 6, 30, -12, 36, -1, -13, 51, -34, 32, 16, 3, 23, -22, -35, -21, 62, -28, 14, -6, -17, -2, 43, 13, 32, -38, -1, -59, 73, -32, 17, 2, 21, 37, 55, -38, 47, 8, 49, -31, -12, -15, 23, 14, 6, -46, 10, 31, 3, 9, 42, -12, -11, 20, 7, -1, 13, 32, -19, 54, -3, 63, -30, -6, 16, -37, 11, -20, -6, 49, -26, -59, -4, 20, -13, 47, 1, 27, -31, -23, -40, -72, -1, 65, -27, 33, -35, -53, 11, -61, 35, 69, -64, -3, -9, 4, 39, 8, 13, -12, -99, -29, 36, -59, 5, 52, -22, -9, 10, 35, 56, -40, -17, -4, 12, -39, 31, 28, -22, 10, 24, 66, -2, -31, -10, 6, 41, -9, -10, -6, 18, -20, -10, -31, 18, 1, 43, 31, -60, -1, -35, -50, 29, 13, 49, 1, 15, 77, -67, -37, 0, -3, -20, 74 ]
T. M. Burns, J. Around 8:30 p.m. on January 27, 1972, James Martin was driving his car westbound on Willis Road in Washtenaw County. His daughter Kristen was a passenger. Willis Road, which is under the jurisdiction of the Washtenaw County Road Commission, is a two-lane paved road. It was snow-covered on the night in question. West of its intersection with Platt Road, Willis Road is crossed by a north-south track owned by the Ann Arbor Railroad. The railroad crossing was protected by a reflectorized crossbuck rather than a flashing light warning sign. An advance warning sign was located several hundred feet east of the crossing. Located between the advance warning sign and the crossing was a 45 mph speed limit sign. On the east side of the track running parallel to the track some 1100 feet, beginning at the north side of Willis Road, is a tall, dense line of trees. Also on the north side of Willis Road, running parallel to the roadway, is another line of trees. Detroit Edison Company maintained on behalf of the road commission two street lights above the crossing, one on each side. On the night in question the light on the west side was burned out. As the Martin car approached the railroad tracks, a southbound train was approaching the crossing. Witnesses saw the Martin car skidding as it approached the crossing. The automobile was struck by the train and pushed several hundred feet down the track. Kristen Martin died in the accident and Mr. Martin suffered severe injuries. Mrs. Martin brought this wrongful death and personal injury action as an individual on her own behalf, as administratrix of her daughter’s estate and as next friend and guardian of her husband. Plaintiff claimed that the road commission was negligent in failing to maintain Willis Road in a reasonably safe condition for public travel, in failing to maintain adequate warning at the crossing, in maintaining a confusing and dangerous speed limit between the advance warning sign and the crossing, and in failing to maintain the overhead street light. Plaintiff claimed that the railroad was negligent in failing to maintain the crossing in a reasonably safe manner, by failing to install adequate warning devices, and by failing to remove visual obstructions. Detroit Edison was charged with negligence in failing to maintain the overhead light. The jury returned a verdict of no cause of action for Detroit Edison but found for the plaintiff against the railroad and the road commission. The latter two parties appeal. I The road commission first argues that the trial court erred in instructing the jury that they could find the commission negligent in failing to salt or sand a roadway which was covered with only natural accumulations of snow. We note initially that the now-challenged instruction was one proposed by the road commission as an alternative to one stating that the road commission has no duty to keep a road free from natural accumulations of ice and snow. We note also that plaintiff presented no proofs on the salting and sanding issue, and it remained in the case only because defendant road commission nevertheless offered proofs on that issue in its own case. Finally, defendant road commission failed to object to the instruction given. Under these circumstances, defendant cannot now be heard to complain of any error in the instruction it requested. See Stabler v Copeland, 304 Mich 1, 10; 7 NW2d 122 (1942), Ladd v Germain, 145 Mich 225; 108 NW 679 (1906). II Both appellants contend that, through plaintiff’s expert witness, prejudicial evidence relating to post-accident changes at the railroad crossing was introduced to the jury. On cross-examination the plaintiff’s witness did refer to hypothetical crossings with signal warning devices as opposed to crossings with crossbucks. The jury was not informed that changes were made in the crossing involved in the trial. We need not decide, therefore, whether there was error under Denolf v Frank L Jursik Co, 395 Mich 661; 238 NW2d 1 (1976). III Both appellants argue that the factual cause of the accident was proven only by conjecture and that the proofs at best established only equal inferences as to the proximate cause. Since the jury was left to speculate as to causation, they argue, a directed verdict or judgment n. o. v. should have been entered. We disagree. Evidence was introduced as to the placement of the speed limit and warning signs, the absence of flashing light warning devices, and visual obstruction of the track. Through testimony of plaintiffs expert witness various actionable theories of causation were presented. Through the same witness theories were offered negating contributory negligence. Evidence of prior accidents placing the defendants on notice of the dangerous nature of the intersection was introduced. Such proof of factual and proximate causation was not insufficient. Cf. Emery v Chesapeake & O R Co, 372 Mich 663, 682; 127 NW2d 826 (1964). IV Appellant Ann Arbor Railroad argues that the trial court erred in refusing to admit a proposed motion picture offered for the purpose of showing that Mr. Martin could have seen a train through the trees that were alleged by plaintiff to obstruct vision. We find no abuse of discretion on the part of the trial court. As plaintiff notes, the scene depicted in the proposed film was dissimilar from that existing on the night of the accident. Cf. Dennis v Jakeway, 53 Mich App 68; 218 NW2d 389 (1974), Kaminski v Wayne County Road Commissioners, 370 Mich 389; 121 NW2d 830 (1963). V The road commission’s final argument is that the trial court erred in instructing the jury that the road commission’s improper placement of the speed limit between the advance warning sign and the railroad tracks could be considered by them in determining whether they were negligent. Pursuant to statute, a manual and specifications for a uniform system of traffic control devices were promulgated by the state highway commissioner and the state police. See MCLA 257.608; MSA 9.2308. All traffic-control devices maintained by county road commissions must conform to the state manual and specifications. MCLA 257.610(a); MSA 9.2310(a). The state manual provides, at page 16, that "Signs shall be installed at maximum intervals of 1/2 mile within any Speed Control Zone to confirm the speed of that zone”. In his instructions to the jury, the trial judge explained the manual and read the portion of it relating to the positioning of speed limit signs. He also stated the following: "I instruct you that the speed limit, 45 sign located by Defendant Washtenaw County Road Commission between the advance warning sign and the tracks was indisputably situated some 280 feet beyond the one-half mile maximum limitation just quoted from the Michigan Manual of Uniform Traffic Control Devices. I further instruct you that the Washtenaw County Road Commission’s violation of this manual in this respect can be considered by you as evidence of negligence on the part of the Washtenaw County Road Commission and you must decide whether the negligence was a proximate cause of the injuries to the Plaintiff.” The road commission argues that it was reversible error to allow the jury to consider the violation as negligence because the reason for the regulation, sufficient notification of drivers of the speed limit, is not relevant to the alleged negligence: placement of the sign between the advance warning sign and the tracks, causing distraction of the driver’s attention to the danger. The road commission admits that the breach of a statutorily promulgated regulation is evidence of negligence but urges that it is reversible error to so instruct where the rule or regulation is not applicable to the fact situation and the theories involved. Under the negligence per se doctrine, the defendant in a negligence action may be held liable in negligence as a matter of law if his conduct amounted to a violation of a statute. See, generally, 57 Am Jur 2d, Negligence, §§ 234, et seq., pp 615, et seq. For the statutory violation to constitute negligence per se, however, the test of the statutory purpose doctrine must be satisfied. See Zeni v Anderson, 397 Mich 117, 138, fn 22; 243 NW2d 270 (1976). In the instant case, however, we are not faced with the question of whether a trial court, in finding a defendant negligent as a matter of law, erred in so finding because the statutory purpose doctrine was not applied. See Hardaway v Consolidated Paper Co, 366 Mich 190; 114 NW2d 236 (1962). In the case at bar there was a violation of a statutorily promulgated regulation. Plaintiffs proofs tended to prove that the violation created a driving hazard. Surely, regulations establishing standards for the design, placement and maintenance of uniform traffic control signs are intended to advance the safety of motorists and other users of the highways. Mr. Martin and his daughter were certainly within the class of persons intended to be protected by the regulations. The road commission’s violation of the regulation, incorrect placement of the sign, created a hazard to the safety of motorists. Whether or not the sign placement regulation was intended to avoid distraction of motorists while approaching railroad tracks need not concern us. Strict analysis under the statutory purpose doctrine is not necessary where, as in the instant case, the rule violation constitutes mere evidence of negligence and is not used as establishing negligence. Affirmed. See 57 Am Jur 2d, Negligence, §§ 246, 254, pp 629, 638. Cf. Webster v WXYZ, 59 Mich App 375; 229 NW2d 460 (1975).
[ -67, 34, 2, -75, 25, -13, 22, -16, 24, 5, -34, -28, 28, -32, 26, -33, 1, 11, -55, 7, -30, -21, -7, -25, -83, 13, 26, -32, -18, 4, -5, -18, -27, 13, 0, 15, -25, -13, 25, 6, -12, -47, 0, -3, 23, -11, 51, 6, 16, -40, -15, 55, -22, -23, 20, 18, 29, 41, -61, 2, 9, -68, 12, 2, 10, 10, 27, 24, 14, 31, -30, 28, -11, 28, 11, -5, 0, 41, -44, 2, -47, -1, 14, -26, 7, -17, -34, -26, -34, -11, -3, -18, -35, 15, 32, 52, -71, -47, -25, -22, -20, 53, 38, 7, -19, -20, 4, -36, -15, -31, 1, 13, -1, 1, -4, 26, 27, 2, 42, 54, 29, -70, -4, -6, 6, 31, 22, 30, -25, -37, 15, -7, 43, 38, 20, 28, -43, -11, 22, 24, -63, 42, 1, 40, 0, 4, 21, 19, 1, -64, -1, 18, 6, -65, -7, -39, 44, -41, 35, 21, 43, 26, 66, 36, -94, 9, -17, 9, -24, 8, 3, -23, 73, -53, 61, 4, -20, 26, -41, -25, 16, -11, 21, 14, -50, -42, 4, -36, -19, -17, 49, -25, 2, -29, -43, 62, 32, 12, 33, 23, 42, -50, -11, 18, -72, 6, -15, 3, -3, 4, 45, -2, -45, 1, 21, 8, -20, -41, 43, -57, 8, -22, 55, -10, 0, -30, -65, -34, 4, -5, 47, -29, -13, -5, -49, 5, 0, -38, 15, 5, 69, 9, 23, 19, -3, -9, -9, -30, -25, 22, -24, -49, -6, -23, 35, -1, 44, 32, -14, -34, 23, 81, -26, 23, 32, 57, -39, 0, -40, -82, -8, -14, 27, -6, -63, -52, 34, 23, 54, 32, 26, -7, -54, 17, 1, 65, -92, 16, -25, 11, 1, -36, 6, 26, -26, 19, 32, -20, -48, 13, 27, 4, -6, 4, 22, 9, -60, 6, 15, 69, 0, -30, -12, 9, 38, 4, 36, -19, 61, 2, 13, 40, -23, -13, -8, 30, -8, -12, 22, -17, -16, 65, 27, 35, 34, -39, 28, 45, 10, -1, 16, 14, 31, -31, -21, -23, 47, 22, -43, -40, -23, -7, 47, -84, -17, -28, 23, -33, -10, 20, -2, -29, 0, 50, -1, -35, 20, -28, -44, 45, 4, 8, -39, 42, -28, -29, 11, 9, 11, 42, 33, -30, 22, -8, -14, -41, -33, -58, -51, 41, -11, -33, 4, 1, 0, -12, 0, 36, -49, -26, 9, 29, 10, 32, 3, 4, 0, 21, -3, -4, -42, -1, 54, -21, -11, 16, 55, 7, -43, 3, 25, 65, 10, -25, -29, -40, -17, 7, 7, 39, 47, 11, 47, -12, 0, 3, 0, -40, -28, -23, -39, 10, 39, -11, -32, -6, -42, 14, 28, -42, 26, -15, 31, 19, -24, 25, 35, -8, -36, -4, -48, -40, -5, 6, -19, -21, 12, -4, 61, -25, -27, 35, -66, 17, 35, -42, -1, 23, -49, 18, -16, -24, -23, -46, -3, -57, 6, 0, 43, -17, 64, 49, -47, -14, 12, 23, -14, 16, 8, 2, -49, -27, -28, 28, 22, -6, 17, 1, -49, -22, 28, -11, 19, 9, 3, 26, -56, -10, 54, -35, 13, -11, 5, 16, -24, 9, -9, -31, -19, -6, 39, -8, 34, -12, 17, -19, -43, 4, -24, -17, 9, 9, -43, -22, -10, -66, 9, 29, 36, -17, 17, -19, -36, -45, -22, -18, -41, -41, -2, 0, -4, -10, 31, -16, 40, 21, 10, 7, 40, -69, -18, 11, 20, -60, -2, 29, -3, 49, -68, 26, -5, 29, -34, 13, -63, 5, 7, 6, -28, 45, -37, 23, 18, 9, 26, 0, 36, 0, 41, -38, 54, -25, 11, 20, 55, 18, -12, -34, 26, -17, 10, -31, -38, 19, 30, 44, -32, -6, 31, 6, -7, -23, 14, 20, -18, 47, 19, 33, -17, 18, -22, 42, -66, -3, 0, -20, 39, 11, -22, -14, -39, 40, 42, -46, -6, -49, -82, 34, -23, -3, -9, 16, -8, -24, -52, 42, 11, 11, -75, -19, 32, -5, 5, -12, -73, -14, -28, -22, 2, -33, 8, 18, -1, -23, 3, -9, -16, 23, 46, 13, 27, -14, 15, -60, 3, -33, -11, 43, 54, -20, -15, 3, -12, 36, -41, -3, -14, 35, 7, -27, -4, 52, -4, 43, -64, 29, 23, -51, 2, 18, 12, 43, 25, -3, -12, 43, 24, -17, -42, -12, 13, -11, -15, -49, 0, -28, -7, -30, 4, 2, 16, -10, -14, -14, -3, -6, 20, 0, -40, -13, 20, 8, 19, 6, -44, -47, 28, 22, 11, -16, -2, 22, 33, 9, 20, -44, 33, 38, 7, -62, 38, -40, 45, 13, 16, 21, -12, -9, 26, -12, -35, 31, -6, 6, -26, 43, 4, -57, 16, 5, 9, 12, 16, -5, -48, 8, -7, 15, 16, -40, 13, 37, 17, 22, 8, -2, -13, 13, 71, -3, 54, 25, -14, -11, -8, -7, -16, -11, 29, 17, 48, 33, -16, 12, 8, 27, 17, 42, -39, 4, 32, 0, -9, -14, -13, 1, -6, -26, 43, -10, 9, 15, -18, 4, -34, 24, 35, 21, -1, -17, 7, 22, -50, 29, -38, 19, -6, 24, 27, 34, -46, -31, -21, -50, 18, 19, -14, 7, -31, 16, -18, -35, -74, 2, 0, -14, -43, -40, -53, 5, -17, -7, 0, 26, -16, -33, -1, -54, -6, 35, 37, -52, 50, 8, 9, -25, -20, 15, -4, 39, -28, -2, 0, 0, -38, -27, -46, 63, 47, 4, -35, 49, -35, 12, -26, -5, -27, 7, -38, 7, -2, -29, -6, 12, -49, 10, -31, 18, 19, 0, 16, 33, 17, -29, -43, 55, -17, 6, -48, 29, -50, -11, 30, 0, 51, -13, 13, -55, 1, -3, 38, -1, -28, 18, 38, -18, 16, -13, -58, 12, 45, -6, 0, 16, -21, -4, -31, 12, 0, -9, 9, 45, 48, 8, 23, -19, 82, -20, 5, 15, -37, 50, -25, -9, 34, -3, 17, -17, -17, -53, -3, -6, 62, 39, 20, -43, -1, -8, -29, 31, -30, 6, -25, -17, 9, -15, 21, 27, -18, -21, 55, -8, -4, 40, 73, -1, 50, 10, 33, 56, -50, 13, 29, 24, 65, 59, -55, -39, 9, -9, 16, 67, 25, 14 ]
R. B. Burns, J. Defendant appeals his jury conviction of delivery of marijuana contrary to MCLA 335.341(l)(c); MSA 18.1070(41)(l)(c). Defendant first argues that the trial court erred in denying his motion to quash the information. MCLA 767.42(1); MSA 28.982 provides in part: "An information shall not be filed against any person for a felony until such person has had a preliminary examination therefor”. The information charged defendant with being a second offender under MCLA 335.348; MSA 18.1070(48), which provides in part: "Any person convicted of a second or subsequent offense under this act may be imprisoned for a term up to twice the term otherwise authorized or fined an amount up to twice that otherwise authorized, or both.” Defendant contends he was entitled to a preliminary examination as to his second offender status. In People v McFadden, 73 Mich App 232; 251 NW2d 297 (1977), we deduced from the absence of a procedural framework in MCLA 335.348; MSA 18.1070(48) a legislative intent not to provide an adversary hearing regarding the prior offense, and observed that the second offender status could be challenged at sentencing. The statute is therefore analogous to the habitual offender act, MCLA 769.10 et seq.; MSA 28.1082 et seq., in that it does not create a separate crime, but merely creates a factor which augments the sentence of a crime. See, e.g., People v Hendrick, 398 Mich 410, 416-417; 247 NW2d 840, 842 (1976). Since the statute does not create a crime, there is no right to a preliminary examination thereon. MCLA 767.42(1); MSA 28.982; see People v Judge of Recorder’s Court, 251 Mich 626, 627; 232 NW 402, 403 (1930). It was therefore not error for the trial court to deny defendant’s motion to quash. A police informant testified that defendant sold him marijuana. The sale was overheard and verified by a police officer. Defendant denied the sale, and by way of explanation stated on direct examination that he knew the informant had previously been arrested, and therefore avoided him because he, defendant, was on parole. On cross-examination, the prosecutor elicited the terms of defendant’s parole. It is reversible error to cross-examine a defendant as to the details of his prior prison sentence to test credibility. People v Rappuhn, 390 Mich 266, 273-274; 212 NW2d 205, 209; 67 ALR3d 766, 772 (1973). We must reverse. We address one other issue which may recur on retrial. On cross-examination of the informant, defendant sought to elicit the circumstances surrounding prior arrests of the informant which did not result in convictions, apparently to establish that the informant had made a deal with the police, might still be subject to prosecution, and hence had an interest in the outcome of the case. Arrests not resulting in convictions are not admissible to impeach. People v Falkner, 389 Mich 682, 695; 209 NW2d 193, 199 (1973). However, a witness may be cross-examined as to any interest he might have in the outcome of the trial, which might encompass questions as to arrests not resulting in convictions. People v Sesson, 45 Mich App 288, 298-302; 206 NW2d 495, 501-502 (1973); see People v Crutchfield, 62 Mich App 149; 233 NW2d 507 (1975). The remaining issues raised by defendant are moot. Reversed and remanded. E. A. Quinell, J., concurred.
[ 4, -14, -42, -13, -1, 10, -59, -11, -56, 84, 19, 0, 19, 3, -14, 56, -39, 0, 10, -12, 32, 19, 37, 80, 7, -61, -10, 22, -16, -21, 3, -29, 32, -9, -8, -44, 13, -5, 29, 11, 37, 54, -7, 18, -72, -29, -26, 21, 53, -4, 36, -44, -14, 13, -3, -14, 52, -20, 0, 47, -2, 60, -60, -43, 10, -20, -40, -25, -15, -2, -25, 0, -8, -3, 12, -3, -19, 0, 35, 52, 3, 28, 34, -9, 50, 0, -7, -65, 44, -18, 9, -31, 6, -28, 8, -49, 33, -5, 51, -41, 10, 42, 14, -26, -57, 8, -35, -5, 22, -10, 19, -6, -16, -60, -38, -56, 11, 66, -42, 13, -23, -6, 34, 14, 25, -33, 3, 18, -31, -14, -15, -11, 8, -8, -5, 6, 33, 44, 3, 48, -17, 24, 30, -14, 49, -1, -24, -12, 25, 5, -19, 17, -73, 9, -42, 2, 30, -46, -17, -2, -3, 9, 2, -17, 8, 1, -5, 1, 34, -25, 12, -36, 45, 26, -23, -16, 1, 18, -9, -11, -31, -7, 32, -5, 28, -4, -69, -18, -9, -7, -9, 1, -5, -19, 46, -5, -1, 50, 33, -29, -62, -9, 26, 66, 45, 0, 5, -2, 17, -28, -50, -45, -28, -39, 35, -47, 43, 19, 2, 39, -75, -23, 37, -14, -22, -12, -7, 66, 5, -4, -7, 23, -6, -6, -28, -32, 2, 0, 59, 44, 31, 1, -12, -18, 45, 38, 25, 9, -25, -41, 22, -8, 31, -54, -8, -17, -3, -56, -76, 24, 10, 13, 25, -17, -81, 8, -11, 15, -57, 39, -28, -10, 18, -41, -22, -9, -34, 8, 7, 11, -14, 21, 26, 52, -62, -13, -27, 41, 6, 18, 33, -26, -49, 0, 14, 0, 15, -3, -47, 32, 39, -14, -17, -26, 4, -36, 36, -5, -39, -9, 56, -5, 18, -2, 6, -48, -17, -27, 53, -23, -16, -33, 12, -57, -5, -15, 5, -38, -3, -4, -8, -10, -9, 8, 16, 47, 5, -7, -18, 41, -22, -9, -3, -7, 61, 39, -13, 40, 11, 14, 31, -7, 41, -10, 18, -47, -34, -37, 20, 8, 6, 15, -18, -26, 57, 8, 3, 4, 35, 20, -41, -54, -13, 15, -6, -41, 14, -38, 3, 9, -10, -7, 61, 3, 28, -57, -35, -11, 33, -21, 1, 7, -43, -48, 20, 13, 6, 21, 41, 4, 16, -15, 35, 31, -22, -81, -27, 2, 14, 0, -6, 87, -10, 84, 23, -32, 23, -47, -1, -36, 5, -19, -25, -25, 66, 1, -5, 30, 58, -21, -22, 65, 0, -63, -33, 27, -47, -5, 19, 38, -24, -11, -59, -12, 9, -10, -39, -67, 27, 24, 13, 25, 2, -47, -18, 54, 29, 51, -2, -33, 0, -63, -56, 47, 32, -51, -30, -37, -7, 4, 63, 13, -2, 10, -12, 55, 0, 17, 9, 2, 23, 12, -2, -17, 5, -41, -7, 29, -18, 0, -2, -15, 22, 18, -58, -7, 3, -60, 13, 39, 0, -53, -4, 48, 42, 12, 54, 7, 43, 18, -15, 37, 10, 4, -12, -37, -19, -35, -6, 28, 47, -67, 4, -21, -40, 0, -31, -66, 10, 41, 71, -36, 78, -53, 39, 19, -59, 5, -19, -13, 19, -11, 24, 2, 7, 10, 22, -44, 15, -5, -23, 37, 18, -57, -29, 4, -18, 45, -4, -26, -57, -9, 47, 50, 2, -14, -13, -9, 5, 35, 11, 45, -31, 36, -1, 21, 19, 18, 5, 50, 31, 57, 6, -29, -30, 24, -13, -23, 0, -26, -51, 12, -24, -3, -9, 26, -64, -77, -25, 16, 19, 14, -85, 8, -19, -17, 76, 44, 12, -1, 25, 6, -28, -26, -14, -6, -12, -4, -36, 34, 6, 10, 25, -22, -30, -28, -61, 11, 8, -26, -3, -37, -31, -41, 6, 14, -31, 9, -42, -25, 3, 32, -25, 33, 37, -2, 39, 2, 15, -38, -10, 33, -7, -38, -2, 15, -58, 34, 24, 5, 5, 4, -5, 11, -1, 17, -26, -24, -3, 3, 4, -49, -3, 2, 25, 25, 12, 23, 35, -1, -35, -37, 32, -22, 8, -39, -51, 57, 56, -34, -5, 8, 40, -3, -7, -36, -29, 30, -23, -51, -20, 42, -20, 47, -17, 5, -21, -28, -20, 7, -5, 93, 4, -1, 19, 20, 1, 10, -31, 9, -22, 0, 18, 12, 26, 9, 22, 7, 70, -100, 16, -16, 46, 10, -24, 34, -16, 8, 45, 34, 0, -12, 0, -21, -19, 3, -22, -33, 27, -45, 24, -6, 9, 64, -27, 45, 57, -30, -21, -43, -5, 55, -2, -65, -12, -15, -7, -14, 28, 17, -79, -61, 33, -3, -31, 34, -29, 8, 43, -10, 27, 9, -63, 3, -35, -37, -21, 4, -51, -18, -5, -43, -17, 43, 66, 13, -5, -8, 42, -1, 43, -55, 9, -19, -15, 23, 2, -22, 60, -25, 69, -37, -11, 14, 23, -11, -17, -42, 10, -68, 13, 42, -35, -62, -26, -8, 39, -26, -2, -44, -3, 23, 37, 53, -9, -49, 4, 11, 2, 17, 17, 6, 11, 45, 18, 8, -10, -9, 64, -21, 17, -32, -27, -12, -40, 9, -36, 15, 3, 35, 69, 14, -38, -25, -5, -19, 22, -16, 15, -68, -2, -2, 18, 30, 11, 15, -20, 13, -16, 29, 17, -27, 58, 32, 28, -12, -35, -3, 2, -14, -32, 55, 4, -16, -36, -33, 57, 34, -3, -24, 22, -65, -65, 8, 64, -24, -8, -30, -21, 43, 12, 6, 27, 17, 24, -33, -25, -5, 0, -27, 14, 47, -1, 0, -9, -27, 21, -5, 5, 5, -2, 32, -6, -38, 3, -33, 33, -19, -12, -15, -55, 30, -19, 14, -36, -20, -46, 56, -7, 5, -48, -56, 24, 4, 29, 21, 10, 11, 7, 4, 26, 34, -28, 9, 42, 52, -33, -1, -8, 16, 32, -30, 5, -37, 62, -14, -7, -11, -4, -22, -24, -28, 27, -7, 0, 20, 32, 11, 14, -27, 23, -46, 5, 49, -23, 53, -35, 1, 25, 26, -15, 59, 5, 8, 22, -1, 0, -15, -7, 11, -16, 5, 7, -18, -55, 34, 15, 22, -99, 37, -8, 60, -28, 44 ]
R. B. Burns, P. J. Defendant was convicted by jury of breaking and entering an occupied dwelling contrary to MCLA 750.110; MSA 28.305. Defense counsel also represented a prosecution witness for whom he had secured immunity. The issue on appeal is whether defendant was deprived of effective assistance of counsel through counsel’s failure to cross-examine the witness as to the immunity agreement. We hold that defendant was and reverse. The evidence connecting defendant to the crime was largely circumstantial. Complainant’s home was broken into and his sporting goods stolen. Earlier that day neighbors had observed a white station wagon with a red door and several occupants parked in complainant’s yard. The next day complainant searched for and found a car matching the neighbor’s description parked in front of the home of Eleanor Case. Several people left the house, got in the car, and attempted to drive away, but were stopped by sheriffs deputies. Defendant was the driver. A search of the Case house turned up some of the stolen sporting goods, including a bow with one of defendant’s fingerprints on it. Complainant’s neighbors were able to say only that defendant resembled the driver of the car they had seen, based on hair color and length. Counsel for defendant also represented Ms. Case, and he advised her not to testify at defendant’s preliminary examination. Counsel then secured for her immunity from prosecution in exchange for her testimony against defendant at trial. However, he then advised her that she need not appear at trial because travel money was not tendered with the prosecution’s subpoena. When she failed to appear, the trial judge issued a bench warrant, and she was arrested and lodged overnight in jail as a material witness. The next day, the trial judge instructed her outside the presence of the jury, that if she did not testify she would not be immune from prosecution and would be held in contempt, and that if she did not testify truthfully she could be arrested for perjury. Ms. Case thereupon testified before the jury that, on the evening of the crime, her estranged husband, his brother and defendant had come to her home, and she had seen defendant hand some fishing poles to her husband, who placed them in the attic. She also testified that defendant was the only one she had ever seen drive the station wagon. The prosecution did not bring out the immunity agreement. Defense counsel’s cross-examination merely reiterated that Ms. Case had never seen anyone else drive the station wagon, and established the fact that the fishing poles were the only stolen objects she had ever seen in defendant’s possession. Defense counsel attempted no impeachment, even by the rather obvious course of bringing out the immunity. A defendant’s right to effective assistance of counsel means that: " 'Defense counsel must perform at least as well as a lawyer with ordinary training and skill in the criminal law and must conscientiously protect his client’s interests, undeflected by conflicting considerations.’ ” People v Garcia, 398 Mich 250, 264; 247 NW2d 547, 553 (1976), quoting Beasley v United States, 491 F2d 687, 696 (CA 6, 1974). Specifically, a defendant is entitled to "the undivided loyalty of his counsel”. People v Gardner, 385 Mich 392, 400; 189 NW2d 229, 234 (1971). Where counsel have represented codefendants, we have required a showing of actual prejudice before finding reversal warranted. People v Jones, 64 Mich App 659, 667-668; 236 NW2d 531, 536 (1975), People v Osborn, 63 Mich App 719, 724; 234 NW2d 767, 770 (1975), People v Marshall, 53 Mich App 181, 189-190; 218 NW2d 847, 852 (1974), People v Hilton, 26 Mich App 274, 276; 182 NW2d 29, 30 (1970). This is because such relationships do not inevitably involve conflicts of interest. People v Hilton, supra. We need not decide whether representation of both a defendant and prosecution witness inevitably involves a conflict of interest such that prejudice may be assumed, since in the instant case we find actual prejudice. Ms. Case’s testimony was damaging to defendant. Counsel was therefore faced with a conflict of interest. On the one hand, loyalty to defendant demanded that he attack the credibility of Ms. Case. On the other hand, loyalty to Ms. Case demanded that he let her testimony stand unimpugned. We can conceive of no reason of trial strategy why counsel would not at least bring out the immunity agreement. We can therefore only conclude that he resolved the conflict in favor of Ms. Case, to the detriment of defendant. The other evidence against defendant was not compelling. We therefore cannot declare a belief that the error was harmless beyond a reasonable doubt. People v Caffray 62 Mich App 486, 493; 233 NW2d 625, 628 (1975). Reversed and remanded. Distinguish the issue of whether an attorney should ever accept employment in a situation similar to that in the instant case. An attorney should avoid employment when conflict is likely. Code of Professional Responsibility, DR 5-105.
[ -11, 17, -42, -22, -3, 0, -40, 40, -53, 55, 29, 17, 25, -28, -39, -37, -4, 15, 37, -41, 9, 1, -7, 57, -12, -60, 17, -10, -49, 46, 39, 10, -6, -29, -17, -68, 44, 22, 33, 32, 39, 2, 20, 1, -64, -6, 6, 8, 27, -1, 63, -17, -8, 10, -5, 1, 0, 59, 22, -13, 44, 7, -68, -74, -1, -12, 23, -24, -26, -2, -24, -62, -52, -19, -26, -1, -7, 13, 18, 44, -11, -5, 27, -11, 44, -7, -9, -50, -45, 5, -42, 28, 10, 0, -5, -22, -13, -13, 86, -11, -47, -40, -20, 8, 15, 43, -76, -12, 36, 1, -9, -11, 31, -1, -6, -32, -8, 4, -32, 19, 16, -14, 40, -64, 20, -11, 14, -35, 2, -24, -6, 54, 41, -4, -28, -42, -10, 2, 32, 8, 13, 29, 23, 9, 37, -24, 0, 21, -38, 58, 1, 10, -33, 23, -2, -16, -5, -59, -14, 3, -14, 30, -32, -22, 4, 0, -63, 6, 15, -60, 32, 26, 6, 46, 39, -52, -46, 0, -6, 12, -5, -2, 5, 19, 22, -30, -33, 30, -52, -1, 23, 8, -3, -25, 65, 8, -22, -1, 42, -33, 0, -36, -23, 1, 14, -30, 30, 9, 19, -78, -10, 16, -5, -61, -4, -39, 2, 5, -9, 11, -66, -48, -7, -19, -63, -18, -2, 4, 73, 20, 15, 17, -16, 0, -16, -21, -21, -78, 52, -11, 2, -4, 28, -25, -19, -1, -31, 39, 0, -39, -8, -16, 65, 41, -35, 4, 0, 21, -40, 34, -12, 22, -19, -9, -20, 41, 38, 37, -41, 35, -20, 19, 3, 59, -17, -17, -50, 81, -49, -55, 1, 37, -44, 6, 4, -32, -11, 28, 59, -41, 18, -7, -31, 0, 19, 13, 27, -21, -53, 42, 28, 6, -18, -10, -22, -15, 30, 20, -46, 26, 36, 27, 35, 6, 48, 44, -14, -41, 9, -33, 11, -19, -28, -5, 34, -16, -10, -33, -39, -2, -17, 7, 1, -5, 42, 46, 7, 35, 32, 24, -44, -42, 18, -56, 13, -5, 10, 35, -27, 4, 42, -9, -17, -5, 28, -82, -19, 17, -26, -2, 31, 4, -1, 28, 5, -12, 45, -6, -24, 24, -10, -63, 7, 5, -40, -33, -23, -5, 3, 28, 5, -16, 54, 8, -24, -11, -9, -16, -17, 59, -33, -29, 8, -56, -55, 8, -23, -1, 19, -4, -51, 18, 25, -5, -75, -21, -51, 28, -43, 8, -50, 56, 23, 53, 8, -36, 30, -25, 29, 10, 26, -13, 41, 12, 21, -19, -33, 23, 16, 6, 1, -29, -6, 0, 46, 7, -31, -35, 5, 24, -2, -24, -19, -29, 4, 20, 9, -35, 19, 12, -3, 46, 24, 21, 22, -20, 45, 25, 0, -41, 60, -26, -19, -1, 37, -17, -16, -52, -32, 22, 58, 2, 4, 13, -36, 18, -33, 74, -41, 48, 3, 29, 53, 26, -37, 8, -4, -23, 20, 7, 12, 30, -20, 32, -15, 35, 48, -46, -14, -35, 9, 12, -33, -16, 29, 23, 37, 5, 27, -12, 6, 6, -27, 36, -18, -22, 54, 1, 9, 12, 27, -16, -13, 3, -7, 7, -37, 0, -28, 39, 12, -12, 11, -7, 45, -2, -9, 13, 1, -9, -31, 73, 12, 10, -26, -37, 15, 14, -8, -18, -19, -4, 7, 0, -11, -26, -23, -13, -3, -19, -8, 6, 79, 38, 19, -13, -8, 17, 53, 4, -7, 1, -33, -9, -23, 47, -9, 20, -15, 26, -32, 56, -14, -37, -34, 17, 30, 34, 35, -1, -31, 0, 4, -40, -22, -30, -77, -88, 11, 38, 24, -18, -43, 6, -19, -27, 7, 44, 8, -2, 92, -20, -27, -46, -1, -3, -17, 8, -67, 49, 24, 7, -12, 14, -2, -52, -25, 32, -10, -55, 2, -51, -22, 27, 8, -10, 20, 27, -42, -19, -38, 62, -23, -38, 0, -6, 48, -9, -5, -70, -20, 54, 5, -43, 33, 20, -5, 30, 22, -2, 37, -26, -18, 0, 0, 0, -26, -17, -1, 16, 12, -37, 44, 61, -8, 9, 0, -7, -35, -39, 5, -60, 4, -38, -42, -14, -4, -7, -11, 1, 10, -1, 17, -22, 18, -59, 40, -28, -35, -34, -38, -46, -10, 20, -7, 0, 37, -52, -2, 0, -36, 36, -12, -22, 14, -65, -83, 31, -1, 43, 9, -35, 26, -12, -10, -24, 67, 9, 51, -18, 28, 20, -25, 8, -22, 31, -50, -15, 12, 9, -20, 39, 69, -62, -3, -8, 49, -47, 43, -26, 53, 7, 14, 41, -10, 34, 8, -14, -39, -28, 22, -1, 12, -43, -19, -1, 16, 13, 14, -12, -53, -28, 58, 8, -24, 62, 4, 12, 54, -13, 49, -11, -39, -32, 0, 1, 17, -28, -27, 22, 32, 11, -38, 23, 15, -31, 18, -28, 14, 9, 37, 25, 28, 10, 23, -4, -10, 74, 35, 33, 40, -37, -17, -24, 11, -2, 21, -20, 51, 12, 6, 22, -40, -35, -40, 67, -10, -62, 6, -28, -27, 7, -15, 63, -8, 8, -29, 27, -24, -30, 2, 66, -18, 16, 43, 36, 4, -11, 19, 21, 39, -5, 19, -16, -10, -8, 10, 39, 7, -8, -25, 22, -9, -31, 17, 19, 12, -38, 58, -18, 27, -17, 39, 58, 35, 33, 10, 45, -27, 67, 23, -21, -19, 29, 4, -8, 5, -28, -8, 16, -29, 12, 18, -19, -26, -25, 32, -19, 4, -43, -8, -39, -41, 27, 28, -25, 2, -15, -70, -34, 19, 21, -11, 30, 60, 35, -56, -15, 5, 28, -22, 44, 14, -9, -3, 7, -7, -37, -19, 39, 13, -8, -17, 27, 78, -45, 8, -35, 1, 34, -5, -8, -68, 20, -34, 28, -8, 25, -22, 31, -21, 1, 6, 17, -1, -13, 32, -17, -5, 2, -42, 7, -33, 22, 18, 15, -24, -8, -25, 37, 20, 9, 4, -37, 22, -51, -9, 36, -27, -18, -7, -25, -6, 17, 0, -14, -6, 25, -37, -30, 10, -50, 14, 39, -40, 20, -19, -47, -15, 13, -89, 36, 24, 17, 33, -4, -9, 40, -15, 7, 0, -69, 43, -34, -24, 18, 7, 28, -22, -28, -18, 24, 16, 47 ]
D. E. Holbrook, J. Plaintiff brought this action in his capacity as the administrator of the estates of Karen M. Lincoln and Nancy L. Lincoln, his daughters. On October 31, 1973, Michael Wood, a Michigan resident, drove his car across the center line of the road striking the car in which plaintiff’s decedents were riding. Both Lincoln girls and Mr. Wood were killed in the accident. Plaintiff appeals as of right from a January 14, 1976 order of the trial court granting defendant’s motion for accelerated and summary judgment on the ground that the court lacked personal jurisdiction over defendant, a New York corporation, and that defendant was not liable for the alleged negligence of Michael Wood on the basis of respondeat superior, because Mr. Wood, a salesman for defendant, was an independent contractor. We hold that the trial court incorrectly decided that it lacked personal jurisdiction over defendant under the provisions of MCLA 600.711; MSA 27A.711, which provides in pertinent part: "The existence of any of the following relationships between a corporation and the state shall constitute a sufficient basis of jurisdiction to enable the courts of record of this state to exercise general personal jurisdiction over such corporation and to enable such courts to render personal judgments against such corporation. "(3) The carrying on of a continuous and systematic part of its general business within the state.” The facts in the instant case closely parallel those contained in International Shoe Co v Washington, 326 US 310; 66 S Ct 154; 90 L Ed 95 (1945). In International Shoe, supra, the authority of the salesmen for the foreign corporation was limited to exhibiting their samples and soliciting orders from prospective buyers at prices and on terms fixed by the corporation. The duties of the salesman were confined to transmitting the orders to the corporate office for acceptance or rejection. Their merchandise was shipped directly to the purchasers. Moreover, none of the corporate salesmen had authority to enter into contracts or collect money. The Court held that those "operations establish sufficient contacts or ties with the state of the forum to make it reasonable and just according to our traditional conception of fair play and substantial justice”, to subject the foreign corporation to personal jurisdiction within the state. International Shoe, supra, 326 US at 320. Defendant in the instant case is in the same situation with respect to its salesman as was International Shoe Co. This Court has adopted the test employed in International Shoe. June v Vibra Screw Feeders, Inc, 6 Mich App 484; 149 NW2d 480 (1967), Wiles v B E Wallace Products Corp, 25 Mich App 300; 181 NW2d 323 (1970), Kircos v Goodyear Tire & Rubber Co, 70 Mich App 612; 247 NW2d 316 (1976). The facts herein do reveal that defendant carried on a substantial, continuous and systematic part of its business in Michigan. The record reveals numerous mail order sales of clothing to several shops in Michigan over a period of years. Most of the orders were actively solicited by defendant’s salesmen. Several salesmen had been operating successfully in Michigan for a period of time. Mr. Wood was paid $250 per week draw against a 4 percent commission on goods sold. Although his commissions had not reached this amount in the short time he represented defendant, his sales were increasing and approaching that figure. A former salesman had been so successful that he was promoted and moved to New York. Also, the salesmen conducted sales throughout the state, operated display booths at Cobo Hall on several occasions at shows, advertised and conducted a successful operation in Michigan. This record discloses that defendant does a continuous and systematic business in Michigan. This is sufficient. Kircos, supra. The representative percentage of defendant’s business conducted in Michigan is not of great importance as long as the business actually done in Michigan is continuous and systematic. June, supra. The trial court also found that plaintiffs actions were barred because Michael Wood was an independent contractor. First, of all, one of plaintiffs contentions was that defendant was negligent in employing or hiring Mr. Wood, a person with a poor driving record and a history of intoxication, as a traveling salesman in a job that required extensive driving. Under this theory it would be unnecessary for plaintiff to show any agency relationship between Mr. Wood and defendant. This asserted negligence was negligence on the part of defendant itself, not on the part of its agent. See Eger v Helmar, 272 Mich 513; 262 NW 298 (1935), 2 Restatement of Torts, 2d, § 411, pp 376-380. Furthermore, the existence of a principal-agent relationship is generally for the jury to decide. Jackson v Goodman, 69 Mich App 225; 244 NW2d 423 (1976), Miskiewicz v Smolenski, 249 Mich 63; 227 NW 789 (1929). We find the record conflicting and, therefore, plaintiff was entitled to have the jury resolve this factual dispute. An agent is one who acts on behalf of another, particularly with regard to the conduct of business transactions. Saums v Parfet, 270 Mich 165; 258 NW 235 (1935). An agent is often an employee, although agents are also classified with regard to the scope of their authority. Defendant argues that Mr. Wood was not a servant and therefore defendant was not responsible for Wood’s acts. However, an agent does not have to be a servant. Saums, supra. 1 Restatement of the Law, Agency, 2d, § 14 N, p 80. Even though an agent is not necessarily a servant, a principal is still responsible for the acts of his agent if done within the scope of the agent’s authority. Obviously, the term servant has broader significance and under the doctrine of respondeat superior, the principal is much more likely to be held accountable for the acts of the servant. Saums, supra. Mr. Wood was given an exclusive territory in which he was assigned to solicit business for defendant. He was provided with job guidelines. Although he was not assigned regular hours or routine, the nature of his tasks did not lend themselves to such incidents of employment. The business cards of Mr. Wood circulated to defendant’s customers seemed to indicate that Mr. Wood was an agent. Wood used company forms and materials and advertising was provided by the company. Furthermore, defendant shipped directly to the customers upon receipt of the orders obtained’by Mr. Wood. Also, the customers contacted Wood when trouble occurred with defendant’s products and deliveries and Wood attempted to iron out these difficulties. The fact that defendant attempted to use many of the incidents of an independent contractual relationship with regards to its salesmen is not determinative. The manner in which the parties designate the relationship is not controlling. If an act done by one person on behalf of another is in its essential nature one of agency, then he is an agent regardless of the title bestowed upon him. Van Pelt v Paull, 6 Mich App 618; 150 NW2d 185 (1967). The existence of the agency relationship, as well as the determination of whether Mr. Wood was acting within the scope of his authority, was a question for jury resolution. The trial court erred in its determination that it did not have personal jurisdiction over defendant. Furthermore, the existence of an agency relationship, its scope and the possible negligence of defendant in hiring Mr. Wood constituted jury questions. Reversed and remanded for trial on the merits. Costs to plaintiff. See also, Republic Supply Corp v Lewyt Corp, 160 F Supp 949 (ED Mich, 1958), Raymond E Danto Associates, Inc v Arthur D Little, Inc, 316 F Supp 1350 (ED Mich, 1970). See also, 1971 Annual Survey of Michigan Law¡ Conflict of Laws, 18 Wayne L Rev 223 (1972). The burden of proof as to whether an employer exercised due care in the selection of a representative should be upon the plaintiff. See Mooney v Stainless, Inc, 338 F2d 127 (CA 6, 1964), cert den 381 US 925; 85 S Ct 1561; 14 L Ed 2d 684 (1965). See also, Eger v Helmar, 272 Mich 513; 262 NW 298 (1935), and Hudgens v Cook Industries, Inc, 521 P2d 813 (Okla, 1973).
[ -3, 46, -27, 3, -14, 17, 23, -11, 32, 4, -15, 5, -2, 74, 11, 2, 44, 55, 13, 3, 30, -11, -37, -16, -27, -48, 30, -20, 15, -19, -16, -4, 41, -75, -18, 75, 21, 15, -6, 73, 22, 13, 43, 11, -6, -14, 42, -43, 28, -17, 44, 51, -3, 7, 5, 0, 23, 12, -13, 34, 14, -31, 55, -7, -13, -28, 4, 56, 28, 16, -13, -30, 27, 48, 20, -12, -7, 8, 47, 4, 37, -13, 10, -35, -81, 32, -41, 30, -40, -21, -18, -34, -36, -24, 17, 37, 9, -18, -18, 15, 27, -32, 9, 38, -1, 33, -7, -68, -13, -65, 22, 56, -18, -5, -19, 0, 12, 13, -12, 22, 11, 0, 39, 29, 10, -36, 10, -26, 37, 28, 5, 60, 28, 0, 11, 16, -4, 1, -11, -29, 12, 79, -24, 9, -5, 51, 0, 18, -64, -4, 34, -22, -34, -9, 50, -31, 52, -13, 50, -37, 34, -15, 14, -8, -20, -38, -49, 40, -62, 45, -2, 46, 28, -44, 20, 10, -12, -21, -54, -7, -2, -6, 4, 10, -17, 2, 44, -16, 7, -14, 30, -23, -10, 39, -18, 14, -22, 23, -6, 14, 28, -75, -30, -30, 18, 15, 10, 34, -10, -6, 19, -3, 22, -43, -39, 0, -20, -9, -19, -18, 68, 21, 26, -9, -27, -43, -43, -3, -42, 7, 10, 1, -22, 6, -18, -3, -29, -46, 15, -4, 52, -2, 31, -14, -8, -30, -27, 52, -5, -10, -19, 4, 44, 34, -19, 2, 0, 4, 6, 19, -19, 59, -42, 9, -14, -5, 22, 26, -54, 3, -73, -6, 43, -28, -20, -24, -4, 54, 37, -54, 20, -40, 7, -50, -56, 20, 20, 20, -40, 36, 49, 11, -17, 3, 25, 74, 65, 20, -4, 47, 52, -6, 27, -9, -25, 26, -4, -11, -23, 34, -43, -101, -17, -81, -17, 64, 23, 9, 33, -71, -3, 90, 55, 20, 33, -16, 45, -38, 46, -14, -19, -35, -1, -15, -9, -90, 10, -12, -8, 36, -59, 11, 4, 3, -5, 18, 34, 17, 27, -32, 7, -32, -17, -25, 8, 2, 19, -48, -35, 13, 5, -22, -57, 5, -13, -18, 35, 28, -29, 35, 2, 14, -8, -13, 16, -56, -75, 7, -19, 30, 38, -29, 28, -34, 0, 0, -14, -25, 41, 5, -14, 25, 40, 22, -16, 18, -12, -37, 9, 3, -18, 58, -15, -56, -5, -22, 26, 40, -16, 4, 3, -21, 58, -5, -4, 1, 12, -44, 21, 10, 36, 18, 10, -41, 27, -34, -48, 37, -31, -19, 1, 0, -5, -26, -17, 0, -29, -30, 53, 8, -41, 1, -37, -40, -16, 16, -36, 29, 43, -22, 64, -1, 35, 9, -8, -21, 10, -13, 59, -11, 4, -26, 21, 18, 20, 26, 22, 20, -12, 0, -40, -1, -4, 20, -26, -40, -37, 5, -3, -39, -57, -11, -31, 1, 6, -17, -4, -37, 9, 15, 30, 3, -10, -13, 3, -4, 13, 6, -2, -19, -28, -55, -1, 45, 22, -18, 28, 10, -33, 21, 13, -19, 38, 45, 22, 51, -10, 14, -17, 21, 12, 5, -58, 68, -4, -11, 28, -17, 30, -55, 58, 14, -3, -46, 10, 4, -9, -16, 14, -20, 31, 37, -14, 12, -46, -1, 22, -49, -7, -9, 2, -38, 7, -63, 3, -8, 11, 23, -11, 27, 14, 81, 38, -19, 29, -31, -28, -42, 47, 45, -52, 47, -16, -21, -8, 5, 18, 30, -27, -42, -18, -3, -58, -60, -66, 24, 15, 29, -3, -17, -1, 2, -14, -33, 44, 7, 9, -39, 48, -17, -23, 31, -31, 13, 5, -7, 3, 35, -20, -45, 3, -29, 15, -34, -7, 7, -17, 23, -17, 28, -64, -51, 15, 40, -7, 19, 14, 16, -37, 4, -9, -39, -49, 0, -14, -9, 57, -13, -100, -56, 2, -37, 51, -26, -29, -3, 17, 17, -3, -4, -22, 4, 22, 52, -12, 21, -16, 1, -53, 7, -12, -52, -11, 9, 16, 29, -67, -18, -11, 23, 0, 17, 3, 0, -6, 3, -37, -14, -1, 55, -20, -11, -11, -25, 12, 43, -15, -38, 0, -27, -12, 8, -24, -69, -17, -10, -5, -21, 20, -32, -50, 64, 4, 92, -28, 38, -48, 23, 1, 33, -16, 2, 22, 8, -21, 49, 41, -74, -38, 9, -32, -71, 36, -48, 46, 46, 25, -15, 34, 12, 20, 24, 13, 17, 2, 0, 27, -42, -9, 5, 7, 11, 43, 22, 0, 18, 21, -7, 12, -50, -11, 7, 62, -1, 9, -17, -4, 34, -71, -11, 7, -19, 29, 7, 22, 14, -44, -28, 64, -41, -19, 12, -26, 30, -60, 24, 44, 31, -9, -5, 13, -16, 17, 41, 0, -28, 4, -26, 10, 14, 44, -32, 0, -13, -49, 41, 3, 30, 11, 5, -3, 13, 17, 18, 24, -14, 10, -25, 31, -13, 24, -58, 4, -49, 32, 18, -22, 23, -25, 25, 5, -44, -37, -10, -15, -27, -11, -43, 17, -17, -3, -21, -45, 17, -11, 19, 54, -39, 85, -25, 13, 35, -9, -4, 84, 37, -3, 24, -30, -23, -29, 1, -54, 4, -8, -4, -16, 17, -41, 17, 20, -25, -89, 31, -52, -24, -24, -34, 48, 45, -18, 34, 30, 25, 9, -22, -2, -20, -40, 20, -13, 11, 47, 26, -44, -12, -2, -44, -32, 23, -8, 0, -20, 30, -29, 13, -14, 15, 49, -39, -36, 36, 37, 1, -34, -4, 11, 3, -86, -32, 55, -9, 36, 10, 10, 71, -10, -7, -4, 14, -26, -34, -21, 20, -12, -5, 25, 3, 38, 35, -31, -81, 5, 5, 38, -33, 0, -10, -10, -34, 30, 14, -11, -13, -18, -20, -41, 39, -34, 19, 3, 10, 16, 76, -12, 36, -15, -33, 9, -6, -54, 17, 42, 29, 27, 5, 35, -40, -7, 19, 17, -22, 11, 4, 6, 18, -12, -7, -32, 19, -30, 46, -48, 12, 44, -25, -12, 34, -20, -27, -45, -21, -18, 18, -41, 34, -15, 13, 8, -61, -18, -29, -28, -13, -12, -7, 10, 11, 9, 1, -52, -8, 9, -10, -35, 5, -13, 20, -5, -45, 6, -25, -18, -21 ]
D. E. Holbrook, J. On March 12, 1976, the trial court ordered judgments of foreclosure of the mechanics’ liens of Williams & Works, Inc., Westinghouse Electric Corporation, Koning & Bandstra, Inc., Johnson & Friedrich Drywall, Inc., Veneklasen Concrete Construction Company, Inc., Shurlow Tile & Carpet, Inc., and Tucker, Inc. The trial court held that each claimant had complied with the requirements of the Michigan mechanics’ lien statute, MCLA 570.1, et seq.; MSA 26.281, et seq. with regard to an apartment project known as Foote Hills, located in Kent County, Michigan. Defendant Kelly Mortgage appeals maintaining that the mechanics’ lien statute is unconstitutional, that the various claimants did not comply with the statute and that the trial court erred in failing to add a necessary party. In addition, claimant Tucker cross-appeals seeking a modification of the judgment. Claimants Johnson & Friedrich Drywall, Inc., and Veneklasen Concrete Construction Company, Inc., cross-appeal seeking modification of an award of attorney’s fees. The record herein is indeed substantial, consisting of the transcript and numerous briefs, depositions, exhibits, pleadings, etc. Defendant Kelly Mortgage & Investment Company’s initial brief alone contains two volumes consisting of over 170 pages of text, plus hundreds of additional pages of exhibits, affidavits and various other items. In addition, Kelly has filed two additional briefs with this Court. We will not disclose our initial reaction to this mountainous record. We find that the complexity of this case fortunately does not correspond with the sheer volume of the record. Initially, defendant Kelly Mortgage Company challenges the mechanics’ lien act as being unconstitutional as a violation of the Due Process Clause, US Const, Am XIV and Const 1963, art 1, § 17. Defendant maintains that the mechanics’ lien statute constitutes a cloud on the title to the detriment of the titleholder without the necessity of proper notice and judicial determination as to the validity of the lien which, when filed, constitutes a cloud or encumbrance upon the title. In Michigan the mechanics’ lien statute has existed for nearly 80 years. It was established by 1891 PA 179. The act withstood early challenges and has been rarely challenged since. Smalley v Gearing, 121 Mich 190; 79 NW 1114 (1899), Smalley v Northwestern Terra-Cotta Co, 113 Mich 141; 71 NW 466 (1897). A similar mechanics’ lien statute was upheld as against a due process challenge by the United States Supreme Court, Great Southern Fire Proof Hotel Co v Jones, 193 US 532; 24 S Ct 576; 48 L Ed 778 (1904). In an early decision our Supreme Court stated the following principle: "The statute was intended to protect subcontractors, material men, and laborers, and its benefits should not be frittered away by construction, unless clearly unconstitutional.” Smalley v Gearing, supra, 121 Mich at 198. We do recognize the longstanding validity of this statute. In recent years, however, mechanics’ lien statutes have been subject to challenge. Numerous decisions have upheld the validity of such statutes. Spielman-Fond, Inc v Hanson’s Inc, 379 F Supp 997 (D Ariz, 1973), aff'd memorandum 417 US 901; 94 S Ct 2596; 41 L Ed 2d 208 (1974), Cook v Carlson, 364 F Supp 24 (D SD, 1973), Ruocco v Brinker, 380 F Supp 432 (SD Fla, 1974). Apparently relying on recent Supreme Court decisions in Sniadach v Family Finance Corp, 395 US 337; 89 S Ct 1820; 23 L Ed 2d 349 (1969), and Fuentes v Shevin, 407 US 67; 92 S Ct 1983; 32 L Ed 2d 556 (1972), reh den 409 US 902; 93 S Ct 177; 34 L Ed 2d 165 (1972), several courts have found mechanics’ lien statutes invalid. Barry Properties, Inc v The Fick Brothers Roofing Co, 277 Md 15; 353 A2d 222 (1976), Roundhouse Construction Corp v Telesco Masons Supplies Co, Inc, 168 Conn 371; 362 A2d 778 (1975), cert granted 423 US 809; 96 S Ct 20; 46 L Ed 2d 29 (1975). The determination as to the constitutionality of this statute is an involved and complex question. Fortunately we need not decide this question. We find that defendant lacks standing to challenge the constitutionality of this statute. Defendant states his challenge on due process grounds as follows: "Specifically, the Michigan Mechanic’s Lien Statute violates the due process clause of the Fourteenth Amendment by failing to provide for: "1. Prior notice before perfection of the lien. "2. Affidavits to establish the validity of the claim or the necessity of invoking the extraordinary remedy. "3. A bond by the claimant to protect the owner. "4. Judicial supervision. "5. A burden on the claimant to establish validity at an early stage of the proceedings.” Defendant also states that the property interest which is affected is the "restraint on the free alienation of real property”. We need not decide whether this is a sufficient property interest to invoke protection of due process. It is apparent that this is an interest in the owner, not this subsequent mortgagee. Each of the items cited as interests of the owner do not constitute rights of the mortgagee. The mortgagee is well aware of the priority interest which exists by virtue of the mechanics’ lien statute and, furthermore, is in a position to avoid being subordinate to the mechanics’ lien rights involved. Defendant maintains that various procedural aspects of the statute serve to invalidate it. However, all these asserted rights are designed to protect the interest of the owner, not other financing parties. Defendant does not challenge the basic foundation or substance of the act itself, i.e., the protection of contractors, subcontractors, material men, etc. One cannot attack this statute on the ground that its application denies constitutional protection to others. Department of Public Health v Tompkins, on rehearing, 34 Mich App 114, 119; 190 NW2d 796 (1971), United States v Raines, 362 US 17; 80 S Ct 519; 4 L Ed 2d 524 (1960), American Power & Light Co v Securities & Exchange Commission, 329 US 90; 67 S Ct 133; 91 L Ed 103 (1946). See also, Shavers v Attorney General, 65 Mich App 355; 237 NW2d 325 (1975). Defendant herein knew of the mortgagor’s building plans and was aware of the details contained therein. Defendant obviously knew of the mechanics’ lien provisions justifiably granting priority to the claimants. Defendant then proceeded to provide the money for the project. Defendant cannot now assert these procedural constitutional challenges to this statute which admittedly would serve to protect only the owner. Neither the past nor the present owners of the property have joined in this procedural challenge to the mechanics’ lien statute. Defendant has no standing to complain of procedural deficiencies of which only the owner of the property can complain. We express no opinion as to the merits of defendant’s constitutional arguments. The next question with which we are faced is whether claimants have in fact properly asserted their rights under the mechanics’ lien statute. The trial court concluded that they had and we agree. The mechanics’ lien statute has been described as: "designed to create confusion and frustrate anyone who attempts to meet all of its requirements”. Spartan Asphalt Paving Co v Grand Ledge Mobile Home Park, 71 Mich App 177, 181; 247 NW2d 589 (1976), rev’d, 400 Mich 184; 253 NW2d 646 (1977). The statute itself clearly announces its remedial purpose and indicates that it is to be liberally construed to achieve that purpose. MCLA 570.27; MSA 26.307, Spartan Asphalt Paving Co v Grand Ledge Mobile Home Park, supra. Recent decisions have indicated that substantial compliance with the requirements of the mechanics’ lien statute shall be sufficient to establish claims. Spartan Asphalt v Grand Ledge Mobile Home Park, supra, Georgia-Pacific Corp v Central Park North Co, 394 Mich 59; 228 NW2d 380 (1975). Furthermore, herein much of the problem was due to the reorganization of Foote, effectively precluding proper notification. Such change in organization should not preclude the claimants from asserting their statutory remedies. William Moors, Inc v Pine Lake Shopping Center, Inc, #1, 74 Mich App 12; 253 NW2d 658 (1977). Furthermore, the owner never requested statements of the amount of work and materials and, therefore, this should not upset the valid lien. MCLA 570.8; MSA 26.288. Notice was, in effect, given to the owners and substantial compliance with MCLA 570.1, et seq.; MSA 26.281, et seq., was achieved. Defendant also maintains that the trial court erred in finding that several of the plaintiffs did not give waivers of their liens, which would have precluded claimants from asserting any rights or foreclosure of the liens. In the absence of clear and unequivocal proof on the part of the defendant to the contrary we are unwilling to disturb the trial court’s finding. G O Lewis Co v Erving, 4 Mich App 589; 145 NW2d 368 (1966), Saginaw Lumber Co v Wilkinson, 266 Mich 661, 665; 254 NW 240 (1934). See also, Saginaw Lumber Co v Stirling, 305 Mich 473; 9 NW2d 680 (1943). The delivery of materials or other commencement of work prior to the recording of the mortgage on the subject property gives the liens priority, even without the filing of notice of lis pendens. MCLA 570.1; MSA 26.281, MCLA 570.9; MSA 26.289, Wallich Lumber Co v Golds, 375 Mich 323; 134 NW2d 722 (1965). Claimants were entitled to priority. Strom Construction Co v Raymond, 356 Mich 79; 95 NW2d 879 (1959). Defendant claims that Schwaemle Construction Company was a necessary party to this action. GCR 1963, 205.1. The record shows that Schwaemle Construction Company contracted to finish construction of this project after the other contractors had walked off the job because of nonpayment. Schwaemle filed its statement of account and mechanics’ lien on April 14, 1975. We find that it was possible to render complete relief on the complaint and the several cross-complaints and counter-complaints. The fact that Schwaemle was not a party did not interfere with the court’s determination of whether the parties herein had money coming to them or if their respective mechanics’ liens were valid and enforceable. No relief was sought from Schwaemle. It may have been convenient to have Schwaemle enter this action, however, it was not necessary. Schwaemle actively opposed joinder and we find the trial court properly acted by denying the motion to add Schwaemle. Tucker, Inc., disputes the figure established by the trial court as the proper amount of its mechanics’ lien. The record reveals conflicting testimony as to the work actually completed by Tucker. The trial judge’s determination that Tucker had not sufficiently proven that the invoice submitted represented completed work should therefore be affirmed. Mazur v Blendea, 74 Mich App 467; 253 NW2d 801 (1977), G O Lewis Co v Erving, supra, Saginaw Lumber Co v Wilkinson, supra. Veneklasen Concrete Construction Company, Inc., and Johnson & Friedrich Drywall, Inc., challenge the sum of the award of attorney’s fees maintaining that the awards are inadequate. The statute does authorize an award of attorney’s fees. MCLA 570.12; MSA 26.292. This Statute vests discretion in the trial court and the amounts awarded are affirmed. River Rouge Savings Bank v S & M Building Co, 359 Mich 189; 101 NW2d 260 (1960). See Anno: Amount of Attorneys’ Compensation in Matters Involving Real Estate, 58 ALR3d 201, 226, § 8. Affirmed. Earlier mechanics’ lien statutes date back to 1827. See 16 Callaghan’s Michigan Civil Jurisprudence, § 2, p 550. An earlier statute was held unconstitutional in The John Spry Lumber Co v Sault Savings Bank Loan & Trust Co, 77 Mich 199; 43 NW 778 (1889). -See Cook v Carlson, 364 F Supp 24, 29 (D SD, 1973), outlining the important public interest furthered by mechanics’ lien statutes. “In the case of a mechanics’ and materialmen’s lien, where use of the property is only incidentally and partially hampered, it is the view of this Court that there exists a basic and important public interest in the summary imposition of the lien. The mechanics’ and materialmen’s lien originated in the necessity of protecting the construction industry and those in its employ. Labor and materials contractors are in a particularly vulnerable position. Their credit risks are not as diffused as those of other creditors. They extend a bigger block of credit, they have more riding on one transaction, and they have more people vitally dependent upon eventual payment. They have much more to lose in the event of default. There must be some procedure for the interim protection of contractors in this situation. A contractor must have some protection against subsequent bona fide purchasers between the time he completes the work and the time he gets a judgment. Considering their vulnerability, and especially considering their importance to the stability of the American economy, I think there exists sufficient justification for the South Dakota statutory scheme which creates a lien as a matter of law as soon as labor and materials are furnished.” Also see, Canvasser Custom Builders, Inc v Seskin, 38 Mich App 643; 196 NW2d 859 (1972), Rowen & Blair Electric Co v Flushing Operating Corp, 66 Mich App 480; 239 NW2d 633 (1976), lv granted, 396 Mich 853 (1976). Additionally, we would like to reiterate that our Supreme Court has already upheld this statute. Smalley v Gearing, 121 Mich 190; 79 NW 1114 (1899). Many courts have recognized that due process concerns frequently are dependent upon judicial balancing of the seriousness of the deprivation against the importance of the governmental and public interests served by the summary procedure. Cook v Carlson, supra, at 25, Boddie v Connecticut, 401 US 371, 378-379; 91 S Ct 780; 28 L Ed 2d 113 (1971), Mitchell v W T Grant Co, 416 US 600, 611; 94 S Ct 1895; 40 L Ed 2d 406 (1974). Several courts have found only slight property interests affected by mechanics’ lien statutes, particulary as compared to the public interest protected. See Cook, supra, Ruocco v Brinker, 380 F Supp 432 (SD Fla, 1974), Spielman-Fond, Inc v Hanson’s, Inc, 379 F Supp 997 (D Ariz, 1973), aff'd 417 US 901; 94 S Ct 2596; 41 L Ed 2d 208 (1974). Prior to August 4, 1972, the record owner of the subject property was Sarah A. Nelson. On August 4, 1972, Sarah Nelson conveyed the property to the Springfield Corporation. On July 10, 1973, the Springfield Corporation conveyed the premises to Foote Hills Associates. Robert Foote was the president and the sole owner of the shares in Springfield Corporation. Springfield and Foote shared offices. Foote was also the general partner in Foote Hills Associates. Springfield executed mortgages to Kelly Mortgage and Investment Company on August 1, 1972, which was recorded on August 8, 1972, and on September 8, 1972, which was recorded on September 19, 1972. The trial court properly found that work began on the project prior to execution of these mortgages.
[ -11, 68, 9, 12, -55, 39, 20, -1, -7, 11, -40, 23, -15, 14, -32, 1, 20, 2, -17, 42, -9, -12, 2, -11, -12, 26, 42, 12, 16, 24, 6, -1, -38, 7, -59, -41, 25, 15, 56, -53, 9, -24, 5, -22, 0, -32, 18, -37, 30, -26, 26, 0, 27, -40, -51, 14, -27, 38, -29, 30, 34, 18, 37, 53, -11, -35, 1, 38, 24, -50, -35, -29, 22, -33, -16, 19, -11, 16, -56, -28, 3, -6, 39, 20, -24, -4, -40, 1, -12, 8, -83, 6, -38, 66, 49, -14, 14, 0, -20, 13, -44, 38, 34, 39, -24, -18, -19, -46, -39, 3, -13, -21, 3, 57, -55, -6, 19, 20, 46, 1, -10, -20, -27, -6, 1, 34, -32, -54, -8, 30, 20, 13, -6, -8, -23, -25, 19, 18, 14, 4, -10, -16, 0, -30, -21, 14, 11, -70, 66, -25, -5, -17, 11, 40, 9, -57, -13, 16, 11, -31, 31, -32, 27, -3, -44, 12, -33, 45, -5, 28, 23, 0, -3, -34, 23, -26, 3, 3, -8, -11, -9, -14, 20, 3, -9, 16, -4, 0, 15, -32, 29, -16, -16, 8, -63, 22, -26, 2, 7, -32, -6, -33, 31, -50, -6, -15, 18, 63, -23, 12, -8, -17, -31, 7, -32, 31, -6, -14, 22, -17, 59, 8, -1, 13, -22, -28, -33, -38, 36, -10, -27, -15, 3, -18, -12, 15, -1, 0, 33, 42, 5, -19, -27, 34, -28, -23, -27, -10, -2, 1, -19, -13, 17, -25, 22, 11, -9, 13, -17, 38, 25, 52, -73, -40, 21, 0, -7, -17, -11, 18, -49, 14, 23, 45, -8, -60, -37, 33, 11, -50, -8, -9, -8, -3, 0, 50, 41, 6, -67, -4, -6, -60, -11, 47, -19, -36, -8, -39, -23, -2, -5, -81, -18, -33, -21, -1, -55, -12, -6, 32, -30, -46, 14, -19, -6, 14, 21, -5, 67, -64, 40, 34, 31, -3, 36, -11, 78, -39, -7, -26, -7, -18, 28, 55, -2, 7, 57, -17, -14, 38, 15, 28, 25, 0, -7, 25, 8, -34, 10, 2, -37, -10, 5, 23, -17, 13, 25, 3, -51, 38, 12, -35, -3, -17, -39, 3, -8, -17, 24, 24, 32, 10, -34, 52, 22, -25, -23, 0, 10, 41, 23, -17, 29, -18, 50, -39, 3, -7, -28, 20, -83, -36, 0, 13, -6, -54, 2, 15, -3, -7, -23, -7, -40, 2, -15, 36, 2, 40, -4, 20, 16, -12, -27, 18, -32, 19, 53, -35, -15, -11, -26, 7, -22, -60, 10, -12, 22, 10, -63, 0, -16, 25, 2, -4, 11, 0, -11, -28, 3, -4, -28, 19, -5, -40, 27, 0, -39, -11, 69, -19, -6, 35, 6, 15, 18, 11, 42, -34, 0, -9, 16, -22, 28, 22, 2, 26, 20, -1, 12, 7, -36, 27, -11, 43, 18, -12, 16, 32, -41, -47, -16, 6, -1, -2, -2, -56, -42, -54, -25, -17, 10, 0, 0, -12, -18, -6, -8, 2, -30, 24, -35, -4, 4, 52, -11, -42, 25, -18, -36, 65, -2, -22, 38, 81, -25, 17, -7, 18, 57, 4, -10, 3, -19, 0, -8, 21, -35, 24, 29, 23, 51, 50, -23, -33, 12, -14, 15, 20, 1, -9, 44, 26, -26, 46, -34, 0, -29, 27, 7, -7, -54, -35, -6, 33, 3, -2, 4, -17, 21, 19, -1, -13, 26, 0, -1, -27, 25, -48, -11, 2, -56, 51, 10, 13, 6, -42, -13, -15, -36, -18, -21, 26, 2, -58, -28, 5, 10, 22, -8, 19, -10, -62, -18, -34, 11, 1, -29, 48, 62, -45, -38, 7, 17, -26, -41, 4, -4, 9, 20, -19, 1, -32, -29, -6, 13, 33, 27, -13, 32, 9, -14, 26, 26, 50, 20, 24, 20, 53, -16, -5, -33, 6, 5, -17, 7, -13, 38, -42, -36, -28, -52, 55, 16, -11, -13, -32, -35, -27, -1, -31, -8, 34, 10, -2, 21, -26, 45, -39, -28, -51, 35, -8, -19, 32, 49, 10, 24, -6, 19, 19, 23, 37, 49, 8, 37, -1, -20, 31, 46, 27, 4, -26, 7, 24, 7, 0, 23, -16, 12, -38, -13, -2, 0, -34, -13, 27, -11, 51, 2, -45, 32, -16, 23, 56, -58, 49, -23, -40, 3, 33, -5, 27, 2, -4, 18, 107, 8, -14, -62, -26, 0, -53, -41, -29, -4, 4, -3, -15, -20, 11, -20, 21, -13, 36, 2, 2, 15, 29, -37, 2, 46, -35, -3, -33, -23, -43, 9, 36, 42, -2, -10, -12, -18, -1, -8, 5, -1, -11, -27, 5, -36, -9, 30, -17, 10, -7, -6, -7, 17, -77, -35, 58, -46, -8, -6, 14, 27, 23, 8, -21, 30, -7, 36, -34, 24, -35, 11, 2, 49, 25, 11, -11, 8, 3, -12, 38, 30, 5, -1, 11, 5, 33, 26, 2, -17, -7, -53, -55, 63, 5, 25, -28, 13, -51, 16, 8, 10, 93, -15, 9, 14, 47, -25, -48, 16, 30, -47, 12, -66, 31, 46, -30, -3, 64, 44, -27, 21, 37, 49, 4, 8, -20, 0, 40, -28, 8, -10, 29, 10, 14, -43, 11, 4, 19, 10, 28, 12, 13, -22, 2, 67, -6, -30, 37, -8, -55, -30, -15, 1, 38, 22, -47, -25, 23, 31, -12, 4, 0, 9, 45, -11, 34, 17, -2, -24, -7, 5, -32, -26, 44, 3, -22, -18, 0, -18, -20, 31, -63, 4, -71, 1, -38, 6, 37, -15, 55, -11, 80, -30, -7, 2, 16, -2, -2, -59, 72, -9, -4, 5, 36, -7, 0, -48, -42, -33, 8, -5, 16, 1, 27, -38, -14, -9, 7, 30, -60, 69, -13, -41, 6, 24, 26, 11, 13, -66, -34, 7, -10, 14, 27, -29, -16, -11, 62, 1, -6, -39, -11, 4, 1, -28, -18, 5, -51, 13, -19, -1, -32, 19, -8, -7, 53, 5, -26, 3, -1, 20, 38, 22, -41, 22, -11, 36, 41, -7, -42, 27, -5, -41, -22, 8, -13, -22, 8, -4, -10, -2, 0, 14, 14, 11, 5, 17, 8, 24, 7, 38, -37, 28, 13, -25, 18, -23, 53, -9, 16, -22, 10, 13, 10, 67, 9, -62, 4 ]
M. J. Kelly, J. Defendant was convicted by a jury of armed robbery, MCLA 750.529; MSA 28.797, on November 21, 1975, and was sentenced to a prison term of 20 to 40 years. He appeals as of right. The facts adduced at trial can be summarized as follows: On July 18, 1974, Robert Sanders was approached in front of his business in Tuscola County, during daylight hours, by a stranger wear ing a blue ski mask with red stripes. Sanders testified that the masked stranger wielded a .22-caliber revolver and demanded his billfold; that the assailant took his billfold and ran to a nearby car. Sanders’ description of the assailant’s clothing and his possession of a gun was corroborated by other witnesses who observed the commission of the robbery. Defendant was subsequently arrested after a high speed chase in a vehicle matching the description given by two witnesses and bearing the license number which they had previously recorded. At trial defense counsel requested instruction on the lesser included offenses of unarmed robbery, simple larceny, and larceny from a person. The trial judge found no evidence to support an instruction on these lesser included offenses and therefore concluded that he was not required to give such instructions. The trial judge reasoned that since there was evidence adduced to support all the elements of the armed robbery charge, if there existed a crime at all, such crime was armed robbery and not the lesser included offenses. Michigan law on lesser included offenses was changed by the Supreme Court’s pronouncement in People v Chamblis, 395 Mich 408; 236 NW2d 473 (1975). Before that a trial court had a judicial function to exercise. The trial court determined if there was evidence to support the factual existence of lesser crimes. Chamblis says that "every armed robbery would necessarily include both unarmed robbery and larceny from the person as lesser included offenses”. 395 Mich at 425. Unless it was clairvoyant a trial court addressing this issue in November of 1975, when defendant’s trial took place, could not have anticipated the Chamblis decision of December 18, 1975. Having no wish to add to the literature on this controversy we say only, and without citation, that December’s law cannot be applied in November’s trial. How many judges in this state prior to Chamblis and People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975), would have given the pickpocket instruction to the gunslinging armed robber? We are not unmindful of the implication that People v Lovett, 396 Mich 101; 238 NW2d 44 (1976), raised the Chamblis rationale to a constitutional "always was” stature but we believe there is a possible alternative analysis. In People v Ora Jones, supra, at 390 the Supreme Court stated: "The duty of the trial judge to instruct on lesser included offenses is determined by the evidence. People v Phillips, 385 Mich 30; 187 NW2d 211 (1971). If evidence has been presented which would support a conviction of a lesser included offense, refusal to give a requested instruction is reversible error. Id. at 36. People v Hamilton, 76 Mich 212; 42 NW 1131 (1889). "If the lesser offense is one that is necessarily included within the greater, the evidence will always support the lesser if it supports the greater.” Applying Chamblis prospectively can we not say that unarmed robbery, simple larceny and larceny from a person are lesser included offenses of armed robbery, but are not "necessarily lesser included offenses”? Building on this literary legerdemain, a review of this evidence is required to determine if it supports unarmed robbery, simple larceny and larceny from a person. The trial court ruled as follows: "’The Court: All right. As I indicated previously, the case law seems to indicate that in a situation such as this, where the defense has not offered any other theories of crimes other than armed robbery, where the evidence would not support the lesser-included offenses; even though there is an instruction on lesser-included offenses requested by the defendant, the Court is not obligated to present such instructions to the jury. "The evidence in this case would indicate clearly that if the jury chooses to believe it, that on July 18, 1974, in this County, Robert Sanders was the victim of an armed robbery. "All of the elements of armed robbery have been shown by the evidence, including the use of a weapon; in this case, a pistol. Certainly an assault, by the use of that weapon; the taking of property from the complainant; the intention to deprive the complainant of that property permanently; and the transportation or movement of the property from the possession of the complainant. "There isn’t anything in the evidence which would indicate that there was anything other than an armed robbery, if it, in fact, occurred. "The real question in this case has been one of identification, and that is the issue that really has been raised by the evidence and the one that the jury has to determine; although, of course, the jury can determine that the robbery did not occur at all, I suppose. "But, certainly, if there was a crime committed, it was armed robbery, and not any of the lesser-included offenses. "Under the authority which counsel and the Court have examined in Chambers — that primarily being the opinions of the Michigan Court of Appeals, I can’t recall the last one we looked at, but two certainly indicate that the Court does not have an obligation to charge the jury on the lesser-included offenses. "In this particular lawsuit, the Court, therefore, will respectfully decline to do so. "Mr. Kent [Defense counsel]: Rather than renew my request, your Honor, at the close of instructions, I will simply indicate for the record that the request is a continuing one, and assuming the instructions to be as the Court indicates they will be, I will object now, in order to preserve the record.” We agree with the trial judge’s assessment of the evidence. We would hold that no error existed up to that point. However this defendant was convicted on the testimony of an accomplice who had already been permitted to plead to simple larceny and the jury well knew it. The accomplice had been charged with armed robbery but pleaded guilty to a reduced charge of simple larceny and had been sentenced on that charge prior to giving his testimony. Juries are often puzzled by these seeming inequities. In this case, during deliberations, the jury sent back a note to the trial court which said: "Can the jury find the defendant guilty of a lesser charge? Yes, or no?” The court with the concurrence of both counsel replied "The answer is yes. All right. That’s all”. Seven minutes later the jury returned with a verdict of guilty on the original charge. During that short period the inference is inescapable that the jury considered and rejected finding the defendant guilty of a lesser charge. Following the note, counsel and the court conferred in chambers and agreed on the simple affirmative with the intention of elaborating, depending on the jury’s reaction. In other words, the court reversed itself on the lesser offense ruling with the concurrence of both counsel after receiving the written query. The court deferred to the jury’s desire to consider clemency, often called a verdict of conscience. We think this was a reasonable if abbreviated way of handling the situation. The next step, that is, detailing the lesser included offenses, proved to be unnecessary by the jury’s collective and unanimous action. After the in-chambers agreement was put on the record defense counsel asked what the next step would be: "Mr. Kent: Your Honor, I’m just wondering if whoever has sent the note in then immediately asks the Court, 'what possible lesser offenses might there be’, we retire to chambers again to— "The Court: Then I will have to set down; I know what they are. "Mr. Kent: Okay.” We find no manifest injustice. Defendant next asserts a violation of the 180-day rule, MCLA 780.131, et seq.; MSA 28.969(1), et seq. The issue is without merit. The proceedings were initiated within the 180-day limit when the prosecutor obtained a writ of habeas corpus on April 10, 1975, to bring defendant before the district court. People v Castelli, 370 Mich 147; 121 NW2d 438 (1963). This initial action was not followed by any "inexcusable delay” evidencing an intent not to bring the case promptly to trial. People v Hendershot, 357 Mich 300; 98 NW2d 568 (1959). The trial court correctly denied defendant’s motion to dismiss on this ground. Defendant’s remaining allegations of error do not require reversal. Affirmed. Quinn, P. J., concurred. Did this eliminate the trial judge from the equation? Does "every” mean absolutely, unequivocally, without reservation, all? Does this put the trial judge back in the equation? No such review would be required for a "necessarily lesser included offense” such as attempted armed robbery because the attempt is always father to the completed offense. The lesser included offenses had not been "affirmatively excluded” and if there had otherwise existed an argument for implied exclusion it was answered in this simple proceeding. It leaves only the argument that the included offenses should then sua sponte have been spelled out in detail. The dissent prescinds from addressing this analysis considering it a post hoc, ergo propter hoc rationale unworthy of comment. We respect the position. Perhaps a review of the conflicting perspectives herein by the Supreme Court would be salubrious.
[ 11, 16, 47, 39, -70, -17, -54, 12, -64, 33, -14, -19, -12, -48, 5, 10, -6, 0, 26, -69, -3, -22, -32, 13, 10, -41, 21, 71, -45, 30, 30, 26, 36, -19, -4, 26, 26, 8, 5, 25, 13, -9, 2, 30, -52, -27, 15, 2, 38, -16, 41, -24, -5, 4, 20, 37, 8, -26, 27, 2, 20, -8, 1, -20, -22, -25, 0, -3, -29, -58, 9, -16, -24, -42, -10, 0, -4, 0, -16, -24, -11, -32, 19, 25, 11, -23, -12, -16, 12, -3, -28, 25, -36, -4, 60, 18, 18, -27, 31, -10, -51, -26, -48, 6, 23, 37, -47, -57, -19, 13, 40, -11, 73, 5, -8, -35, -14, -27, -6, 48, -11, 7, 50, 19, 22, -71, 5, -24, 7, -5, 15, 59, 23, 18, -53, -16, -17, 34, 7, -4, -62, 1, 8, 15, 43, 33, 17, -24, 51, 28, -23, 20, 0, 22, -17, -12, -37, -34, -22, -42, -12, -7, 17, -6, 16, -4, 11, 5, -36, -41, -56, -52, 39, 41, 73, 31, -30, 8, 44, -1, -12, 33, -10, 28, -10, 1, 11, 21, -25, 4, 33, 67, -11, -9, 60, 38, 27, 10, 19, -17, 42, -23, 38, -25, 21, -6, 50, 47, -14, 42, -19, -41, 31, -8, 6, -17, -58, -13, -9, -37, -43, 0, 18, 10, 26, -34, -31, 13, -48, 21, 0, -25, 45, -18, -24, -11, 28, -78, 44, 3, -5, -50, 10, -43, 82, 16, 12, -26, 24, -23, -3, -16, -43, 23, -24, -3, 47, -40, -31, 43, -48, 35, -21, 0, -9, 44, 1, -10, -56, 17, -20, -27, 26, 34, 9, -38, -23, 32, 2, -17, 39, 34, -34, 15, -1, -26, -7, 46, 32, -4, 33, -1, -23, 31, 9, 25, 34, -25, -34, 25, 17, -4, 3, -4, -14, -44, 2, -20, -22, 2, 5, 12, 6, -23, 28, -3, -3, -17, 15, -13, 3, -11, 22, -26, 54, -15, 21, -22, 23, -22, -13, 0, 18, 13, -13, 9, 41, -4, 75, 43, -11, -36, 42, -33, -5, 33, -48, 32, -38, -51, 36, 28, 24, 8, 25, -11, -26, 2, 0, -15, 44, -19, -2, 4, 15, 4, -37, -6, 22, 43, -3, -18, -1, -27, 10, 2, 50, -11, 8, 2, -19, 13, 42, -53, -9, -28, 22, -40, 17, 9, -89, -34, -12, -40, 0, -20, -36, 5, 33, 13, -52, 38, 26, 2, -69, -6, -48, 26, 8, -40, -51, 19, 57, 57, -6, -13, 47, -50, -23, -25, 2, -4, 21, -53, 16, -44, -37, -2, 13, -54, 16, 23, -1, -27, 17, 12, -26, -1, 20, -22, -12, -43, -15, 14, 8, 9, -51, -4, 31, -22, 14, -16, 9, -47, -6, 56, 15, -1, -10, -63, 10, -18, -37, 16, 45, -13, -73, -42, 44, -32, 56, 15, -27, -16, -5, -1, 26, 43, 9, -14, 15, 29, -16, 15, -19, -46, -33, -40, 9, 38, 14, 31, 44, -3, -4, 32, -44, 25, 0, 53, -18, -6, 8, 15, 34, 44, 64, 1, -27, 44, 6, 29, -24, -1, -27, -22, -4, -24, -9, 22, -1, -27, 39, 21, 11, 9, -1, -32, -7, 16, 22, 52, 8, 2, 70, 16, 10, -7, -10, -43, 36, -10, -22, -11, -8, -67, 8, 0, 36, -6, -13, -18, 41, -70, 23, -44, -1, 7, 8, -27, -31, 61, 36, 44, 38, -1, -18, -41, 29, 14, -59, 45, -12, -10, -42, 16, 10, 6, -51, 72, 28, -9, -27, 23, -24, 12, 48, -3, 17, -18, -8, -14, 19, -11, -24, -20, -38, -28, 19, -16, 50, -4, -10, -22, 25, -24, -8, 31, 0, -18, 34, 0, -4, 1, -55, 19, -45, 10, -12, 0, 38, -40, 34, 10, 50, -6, -88, -14, 20, -33, -33, -34, -3, 30, 6, -7, 0, 20, -41, 12, -55, 25, 37, 11, -2, -21, -49, 27, 4, -57, -27, 20, -36, -47, -6, 2, -3, 21, -12, -13, 3, 38, -86, -49, 32, 47, 6, -20, 26, -31, 8, -38, 35, -46, 10, 33, -26, 7, 31, -3, 15, 15, -26, -23, -9, 38, -4, 3, 19, -24, 27, 41, -25, -19, 30, -34, 13, 24, -52, 3, 9, -12, -14, -30, -6, 7, 2, -40, 2, 18, -87, 74, -1, 14, 7, -7, -63, -27, -44, 41, -55, 12, 7, 12, 18, 18, 10, -9, 1, 55, 19, 43, 0, 0, 13, 36, -31, 17, -25, 24, -14, 1, 47, -16, -42, 5, 26, -72, 39, 34, 37, 33, -5, 31, -61, 38, 44, 69, -29, -50, 11, 12, -4, -52, -19, -28, -21, -24, 49, -1, -36, -30, -7, -3, -47, 25, -8, -31, 0, -10, 32, -2, -30, -15, 19, -10, 6, 33, -28, -20, -5, -7, -4, 34, 9, -12, 13, 35, 23, 1, 36, 55, 41, -60, -6, -12, 25, -50, 11, -15, 21, -8, -4, -3, -33, -1, -9, -7, -1, -22, 32, 21, 38, -58, -4, 15, -14, -15, -64, -15, -13, 22, 18, 34, 8, -11, -11, -17, -11, 7, 70, -12, 18, 30, 27, -30, 15, -45, 22, -8, -10, 15, -24, 13, -24, -2, -19, 46, -8, 21, 16, 5, -14, -4, -10, 4, 33, -21, 29, 36, 24, 7, 41, 61, -28, 43, -5, 28, -55, -42, 24, -12, 21, -16, 9, -61, -28, -46, -40, 2, 4, 31, 4, -40, -22, -10, 11, -15, 36, -76, 38, -6, -79, 25, 95, -12, 53, 8, -20, -9, -29, -1, 19, 26, 3, 3, -2, 19, 72, -7, -16, 40, 62, 23, 13, -17, -36, 6, -8, 24, -64, 27, -11, -24, 9, -2, 49, -15, 34, -1, 2, -17, -37, 31, -46, 10, 10, -3, -15, 12, -54, -22, -21, -12, 10, -19, -16, 41, -23, 4, -46, 38, -13, -39, 56, 17, 8, -23, -25, 35, 12, -26, -1, -7, 31, 9, -2, 40, 3, -20, -38, -41, -1, 21, 29, 26, 20, 36, -38, 2, -47, 39, -30, 24, -15, 6, 9, 0, -56, 1, -28, 17, 17, 10, -6, 5, -5, 2, -19, -1, -12, -15, 6, -4, -49, 18, -11, 17, -41, -11, -72, 76, -30, 48 ]
McGrath, C. J. Plaintiff was arrested upon a capias. He moved to vacate the order to hold to bail and quash the writ on the ground that the affidavit was insufficient. The motion was denied, but, upon application to this-Court, a mandamus was issued, directing that the writ be vacated and the proceedings quashed. Plaintiff now brings trespass for false imprisonment, and the sole question is whether the order to hold to bail, granted by the circuit judge, protects the party making the affidavit and applying for the issuance of the writ, when no malice or lack of probable cause is averred or shown. Section 7302 of our statute provides that certain actions, named, arising upon contract, may be commenced by capias, when the plaintiff, or some'one in his behalf, shall make and attach to the writ an affidavit stating certain facts. Section 7304 provides that “personal actions may be commenced by capias ad respondendum in cases of claims for damages, other than those arising upon contract, express or implied, where an order for bail shall be. indorsed on the writ by a judge of the court from which the writ issues or a circuit court commissioner;” and section 7305 provides that “such order shall be made only upon the affidavit of the plaintiff, or some person in his behalf, showing the nature of the plaintiff’s claim.” Under sections 7304 and 7305, the plaintiff is required simply to set. forth the nature of his claim, and the judge or circuit, court commissioner judicially determines whether the case, made comes within the exceptions named in the Constitution, and whether it will warrant the indorsement and issuance of the writ. The statute expressly confers upon the judge or circuit court commissioner authority to act, and power to determine the question. The judge to whom application was made for the order-had ample power to entertain the application, and, upon the proper affidavit, to indorse the order. An affidavit was presented in which defendant here set forth, in substance, that plaintiff here was employed as agent of affiant to sell goods and make collections; that as such agent he had collected sums of money which he had not accounted for; that he had falsely and fraudulently pretended that he had accounted for all moneys received by him; that settlements had been made with said agent upon the faith of his representations; that he had not accounted for all moneys collected; that he had collected large sums of money, and fraudulently kept back and concealed the same, •and converted the same to his own use, intending to cheat and defraud his employer, and to embezzle the same; that affiant obtained his knowledge that moneys had been collected and not accounted for by comparison of the statement of moneys collected, made by said agent, with the statements made by customers; that it also appeared, by many receipts given by said agent to customers, that largo sums of money had heen collected by said agent that said ••agent had not accounted for; that it also appeared, by admissions made by said agent to affiant, that many accounts had been collected by said agent that he had not reported or accounted for. It is evident that this affidavit lacks in detail and in certainty, and for that reason it is insufficient; but it cannot be said that it sets forth no facts or circumstances indicating fraud or breach of trust. It is true that this Court, by a mandamus, directed the circuit court to quash the proceedings; but that was a proceeding in the nature of a review of the action of the ■court below, and there has been no adjudication by this Court that the proceedings were absolutely void. As is said in Miller v. Brinkerhoff, 4 Denio, 118, 120: “ When certain facts are to be proved to a court of, special and limited jurisdiction as a ground for issuing process, if there be a total defect of evidence as to any essential fact, the process will be declared void in whatever form the question may arise. * * * But when the proof has a legal tendency to make out a proper case, in all its parts, for issuing the process, then, although the proof may be slight and inconclusive, the process will be valid until it is set aside by a direct proceeding for that purpose. In one case the court acts without authority; in the other, it only errs in judgment upon a question properly before it for adjudication. In one case, there is a defect of jurisdiction; in the other, there is only an error of judgment. Want of jurisdiction makes the act void; but a mistake' concerning the just weight and importance of evidence only makes the act erroneous, and it will stand good until reversed.” Staples v. Fairchild, 3 N. Y. 41; Spice v. Steinruch, 14 Ohio St. 213; Taylor v. Moffatt, 2 Blackf. 305; Hauss v. Kohlar, 25 Kan. 640; Forbes v. Hyde, 31 Cal. 342; Benson v. Bennett, 25 N. J. Law, 166; Harman v. Brotherson, 1 Denio, 537; In re Faulkner, 4 Hill, 602; Mills v. Collett, 6 Bing. 85; Brittain v. Kinnaird, 1 Brod. & B. 432; Sewart v. Hawley, 21 Wend. 552; Tompkins v. Sands, 8 Id. 402; Easton v. Calendar,, 11 Id. 90; People v. Collins, 19 Id. 56. Mr. Cooley, in his work on Torts (2d ed. p. 548), lays down the rule— “ That, if the jurisdiction depends upon the facts, and these are presented to a court having general jurisdiction of that class of cases, and the court decides that it has authority to act, and proceeds to do so, this decision protects, not the officer merely, but the party also.” When an application is made to a judge to hold to bail, it is his duty to hear and investigate; and if the affidavit sets up facts and circumstances tending to show fraud or breach of trust, thus bringing the case within the exceptions of the Constitution, authority to act depends upon the facts, and the determination of the judge must be held to have all the qualities of a judicial decision, and as such protects the judge, the officer, and the party. The judgment, which was for defendants, will therefore be affirmed, The other Justices concurred.
[ 8, -5, 27, 3, 44, 0, -7, -4, 18, 71, 16, 11, -24, -7, 0, 1, 50, 50, 72, -17, -19, -14, 17, -24, 10, -34, 0, -31, -11, 9, 1, -11, -2, 29, -18, -3, 30, -18, 25, 7, 13, -2, 2, 37, -34, -60, -52, -2, 0, -54, -17, 24, 10, 20, -25, -9, 6, -42, 1, 28, -23, -17, -40, -14, -53, 2, 4, -5, -27, 2, -5, 33, 13, 14, -19, -16, -24, -3, 30, 31, 23, 11, -20, -8, 24, 21, 2, -24, -20, -16, 3, 43, -101, -28, -35, -18, 80, 4, 67, 60, 11, 30, -45, 11, -2, 26, -8, -9, -63, 0, 63, -2, 2, -66, -18, -31, -39, -23, 17, -57, 54, -2, 40, -3, -25, 5, 24, -21, -32, 23, 26, 42, 22, -8, -25, 8, 1, 15, 23, -36, 2, 13, 9, 4, 13, -11, 68, -37, -29, -11, -39, 52, 27, 2, -37, 30, 47, -8, -42, -21, 57, 49, -49, -7, -4, -42, 39, 1, 19, 0, 44, 7, -30, 29, -35, -42, -20, 5, -27, -24, -31, 69, -33, 2, 24, 8, -34, -20, 24, 15, -5, 54, 3, 24, 92, -21, -17, -15, -5, -24, -17, 11, 0, -8, -12, 2, -22, -11, -13, -15, -51, -19, -30, -27, -26, -26, 27, -28, 59, 17, -14, -9, 27, 5, -34, -26, 26, 0, 10, 8, 3, 15, -50, -5, 7, 2, 10, -41, 58, 63, -15, 61, -25, -10, 43, -10, 31, 0, 4, -7, -13, 15, 0, 21, -13, -29, 2, 12, -77, 4, 6, 26, -8, 16, -7, -22, 18, 30, 7, 0, -1, 17, -5, 6, 35, 9, -28, -32, -7, -52, 0, 41, -58, 15, -57, 15, 31, -9, 30, -1, 5, -9, -43, -2, 14, 0, 19, 11, -9, 9, 17, -10, -11, 9, -59, -36, 29, -21, -32, -4, 43, 86, -21, 16, 14, 5, -2, -2, -39, -84, -21, 16, 10, -12, 8, 5, 28, 29, 13, 10, 49, -9, -14, -62, -20, 57, 2, 9, -37, 31, 22, -40, -34, -29, -28, 3, 1, -47, -68, -24, -37, 12, 6, 2, 6, 31, -68, 2, 20, -8, -4, 38, -10, -15, 54, 39, -37, 12, 38, 7, 21, -24, -34, -29, -34, -30, -5, -1, -46, 37, -21, -45, 16, -15, 8, -8, -43, -43, -33, -27, -22, -1, 4, -26, -31, 45, -6, -9, 20, 18, -33, 44, 31, -27, -50, -13, 36, -7, -1, 36, -43, -14, 3, 72, -9, 17, 6, 46, 0, 10, 13, -32, 25, -30, 42, 13, -39, 24, -25, -72, -23, -4, 24, 41, -12, 2, -21, -36, -15, 11, -39, -45, 1, -18, -5, -42, -46, -41, -33, -12, -10, -3, 27, 15, -34, 1, 27, 23, -11, -7, 4, -10, 1, 37, 18, -28, -45, -36, 16, -20, 19, -5, 0, -5, -47, -11, -9, 29, -21, -7, 2, 39, 20, -57, 0, 39, -11, -27, 21, 15, -40, 1, 10, -15, 15, -21, -26, 1, 5, 34, 28, 58, -40, 9, -22, 3, 53, 22, 39, 23, 7, -9, 33, 7, -48, 16, 12, 32, -15, 33, 17, -78, -32, 9, -11, 52, 6, 4, -49, -18, 6, 19, 68, -40, -5, 50, -31, -35, 26, -14, -29, 40, -1, -17, 22, 1, -17, -42, 9, 0, 22, 28, 38, 18, -28, -11, -29, -21, 1, -25, 29, -27, 0, 27, -27, 0, 21, 13, 15, 26, -21, -38, -21, 21, 25, -2, -2, 15, 18, -50, -14, -6, -17, 22, 12, 4, -8, -14, -11, -38, -24, 15, 19, -67, -27, -19, 10, -4, 14, 15, -20, -6, 0, -4, 24, 4, 67, 18, -13, 7, 43, 40, -68, -5, 23, 7, 5, 0, -44, 67, 20, -31, -7, -22, -18, -40, -36, -32, 55, -47, 3, -57, 19, -4, -3, 7, -53, 61, 9, -46, 57, 28, 22, -26, 32, 12, 26, -15, 44, 16, -11, 25, -35, -28, 57, -10, -10, 13, 54, -8, 4, -31, -16, 18, 2, 12, 3, 11, 21, 12, 23, -19, 37, 7, 26, -39, 9, 30, 2, -47, -4, -17, -29, -22, -26, -42, -66, 45, 27, 30, 8, 11, 16, 10, 24, 22, -33, 10, -18, 6, 21, -41, 3, -27, 19, -11, 24, 20, 15, 1, -14, 6, -21, 18, 43, 11, 3, -15, -4, -9, 9, 2, -13, 1, 32, 73, -8, 5, 5, -39, 6, -27, 10, 11, 42, 22, 25, -33, -15, 14, -26, -42, 1, 6, 27, 21, 15, 21, 19, 41, 62, -52, 20, 25, -30, 39, -23, -21, -1, -27, -17, 42, -43, -19, -19, 29, -5, 3, 22, 22, 34, -41, 66, -34, -27, 27, 38, -69, 6, -2, -24, 3, -57, 27, 1, -35, -29, -62, -29, 24, 41, -65, -59, 34, -2, 2, 29, -14, -26, -4, 71, 1, -7, 25, 46, 22, -15, 40, -15, -39, 0, -9, 0, -5, -24, 29, 13, 19, -34, -27, -13, 35, 18, -21, 16, 34, 18, -37, -24, 0, 8, -51, 8, -14, 27, 31, 3, -38, 22, -28, -7, -59, 9, 24, 28, -40, 27, -3, -17, -4, 42, 50, 16, -28, -41, 0, 23, 13, 18, -54, 33, 50, 14, -80, 5, -77, -11, 10, 26, 32, 51, 4, 28, 56, -37, 6, 34, -36, -14, 17, 35, 16, -24, 7, -19, -15, -14, -89, -15, 8, 52, -24, -5, 13, -4, 62, 10, -51, 7, -2, -1, 23, 22, -2, 29, 13, 19, -1, 0, 20, 1, 4, 46, -50, 29, 49, 1, 28, 5, -27, 15, 10, 2, -6, -57, 5, -12, 8, 18, 40, -70, -7, -13, 0, -15, -36, 18, -16, -22, 6, -48, -14, -31, 20, -28, 6, -42, -3, 41, -25, -104, -20, 5, 3, -24, -5, 7, -18, -9, -13, -16, 32, -4, -11, 30, 19, 31, -14, -23, -19, 43, -12, -33, -21, -56, 6, 4, -7, -2, 5, -13, -39, -6, -20, 31, 7, -2, 39, -2, -27, 18, 56, -68, 31, -17, 29, 6, -22, -24, 54, 2, 41, 33, 9, 37, -26, 11, 71, -39, 19, -24, -65, 62, 49, -33, 11, -57, 1, 30, -8, -12, 37, 37, 14 ]
Montgomery, J. The bill in this case was filed to obtain the specific performance of an oral agreement claimed to have been made by the defendants, who are father and mother of complainant, whereby they agreed, in substance, that if the complainant, who was at the time residing in Canada, would return and build a house upon, and settle down upon, the 40 acres of land in question, the defendants would convey to him the land. The complainant was the owner of a wild 40 near by. The defendant John Russell owned 160 acres, the 40 in question being across the road from the main portion of his land, and opposite his dwelling-house. The questions involved are questions of fact. It was determined in Welch v. Whelpley, 63 Mich. 15, that such a contract as this, if clearly established by the testimony, and the complainant had actually entered into the occupancy of the land, and performed on his part, would be enforced in equity. In the present case the testimony is conflicting. The complainant and his wife both testified that such an agreement was made on the part of defendants. The defendants deny having made the arrangement, but claim that complainant was permitted to build the house upon the premises, and live there without rent so long as he desired. We are convinced that the complainant has established his case by a preponderance of testimony. It appears from the testimony that the value of the 40 was inconsiderable, —the testimony showing, about $300; that the complainant entered upon the land, and in fact built a house worth $600 or $700, and began clearing and improving the land. The defendants admitted in their testimony that there was a talk about complainant having a deed of the land. Mrs. Russell testified: “ One evening George and I were sitting in the kitchen, and he said, ‘ Mother, I want a deed of that 40 across the road before I begin to build a house/ I said I had not got a deed of it. He said, * Well, it’s yours, any way/ I said if he had a deed some one would get it away from him, — Mr. Bullman or some one else.” She further testified: “ One evening, afterwards, I had a conversation with George, after my husband and Jimmy had gone to bed. George said: ‘ Mother, I want a deed of that 40. I donT want to go on and build and clear up some on it without a deed, because you could turn me off, if you had a mind to, without anything/ I made answer that he could go on and build, and he would not be turned off without anything. I said, c It may be yours some time/ I think that was all that was said at that time. “ Q. Whether at this time he had commenced getting any material to build the house? “A. I think he had commenced getting the material.” Complainant testified that, in addition to the assurances that he would not be turned off without anything, both defendants- assured him that he should have a deed. Defendant John Russell testified, in answer to the question: “ Do you know anything about why he -came to build a house on the 40 across the road from your house, instead of building it on his own 40? “A. All the reason I know is, I suppose he had rather live there. He never said anything to me about it.” It is incredible that the defendants should not have both understood that complainant was building this house in the expectation that the property was to become his. Indeed, the testimony of Mrs. Russell shows this, and at the same time shows that her husband is not altogether frank in his statements. The probabilties are all with the complainant. It is unlikely that hé would have gone to the expense of building a dwelling upon the land, which was considerably in excess of the value of the bare land, if there had been no agreement that he should have the conveyance. This view is strengthened by the fact that the testimony of defendants, as well as of complainant, shows that he was awake to the importance of having his rights evidenced by a written conveyance. The decree will be affirmed, with costs. The other Justices concurred.
[ 34, 36, -42, 14, 11, -38, 45, 72, 18, 37, 45, -23, 75, -19, 36, -1, -19, -61, -16, -14, -1, -27, -10, -35, 44, 45, 18, 4, -22, 30, 23, -4, -48, 4, -7, -51, 64, -17, 11, 13, 29, -5, 11, -22, 30, -2, -7, 2, 11, 18, -13, -35, 38, -11, -16, -26, -34, 25, -45, 3, -25, -36, -20, -9, -6, 11, 47, 11, 5, -37, -24, 35, -49, -39, 21, -17, 3, -20, -5, 36, 9, 1, 41, -5, -56, -29, 0, -21, -5, 34, -23, -7, 0, 20, -25, 35, 25, 18, 27, -7, 12, 27, 36, 1, 2, 8, -37, -30, 21, 20, 5, -31, 45, -43, -37, -63, -16, -4, -25, -2, -17, 27, 7, 2, -36, -32, 10, -38, -6, -15, 24, -20, -55, 0, -38, -31, 16, 10, -3, 19, 5, -1, -8, -25, -4, 0, -26, -19, -31, -47, -1, -6, -13, 20, 23, -22, 13, -31, 41, -13, 39, -15, -45, 5, -75, -11, 28, 57, 17, 14, 40, -15, -60, -23, 24, 14, 14, 5, 8, -26, 41, 27, -13, 13, 8, 14, -31, 0, 32, -6, -9, -27, -38, 17, 7, 44, -18, -20, -7, -27, -23, -4, 15, 0, 9, -6, 12, -12, -29, -1, -31, 22, -36, -30, -4, 2, 56, -17, 20, 9, 12, 32, -33, 37, -84, -54, 33, 6, 48, 0, 9, 0, 8, 4, -51, -28, 21, 23, 3, 1, -30, -22, -21, -28, 23, 25, -45, 7, 15, -17, -40, 8, -18, 33, 7, 13, 14, 2, -15, -28, -14, 30, -19, -18, 42, -41, -19, -21, -2, 36, 7, 2, -10, 51, -20, -17, -27, -2, -80, -17, 21, -5, -9, 11, 4, -2, 11, 55, -22, -8, 41, -65, -10, -44, 14, 48, -15, -5, 6, 14, 4, -59, 27, 0, -23, -42, 35, 3, 8, 14, -20, -2, 3, 58, 7, 2, -15, -8, -27, -50, 54, -42, 23, 6, 0, 7, 32, -47, -63, 43, 22, -25, -6, 9, 42, 11, -12, -52, -40, -12, 15, 32, -3, -33, 21, 82, -1, 37, -10, 0, -7, -20, -55, 27, 4, -17, -10, 6, 0, 15, 21, 1, 9, -11, -22, -2, -14, -54, -10, 31, -7, 8, -23, 14, -25, 0, 9, -39, -54, 43, 9, 9, -15, 68, 45, -19, -60, -32, -23, 20, -24, -13, 4, -2, 9, -41, 15, -13, -30, -4, 30, 3, 3, 18, -45, -2, -19, -8, -22, 3, -16, 3, 10, -11, -4, 8, 16, 7, 31, 31, -13, 23, 51, -18, -11, -13, 23, -47, 39, 11, -32, -2, 26, 11, 52, -2, -24, -23, -46, 20, -3, 15, -17, 27, -5, 20, -28, -26, 14, -39, -1, 24, -64, 7, -7, 1, 35, 12, 8, -17, -11, 20, 30, -49, 35, -52, -17, -35, -7, 3, 26, 18, 28, -11, -15, 17, 4, 18, -38, -9, 23, 1, 4, 14, 1, -33, -79, 16, -7, 1, 18, -23, 23, 31, 11, -16, 17, -22, 15, 24, -1, 51, 28, 23, 28, -25, -39, 33, 39, 18, 1, -20, 8, 7, -39, 17, 75, -1, 40, 50, 2, 2, -6, -26, 1, -41, 19, 25, -20, -39, 3, -13, 34, 23, -11, -18, 14, 8, 8, -14, -40, 46, -11, 21, -27, 43, 13, -10, 27, 33, -7, -56, 22, -6, -12, 24, 14, 16, -20, -14, 5, 21, 30, -8, 18, -24, 26, -10, 16, 37, -29, 7, -12, -12, 0, -20, -6, 1, -5, 14, -20, -24, 7, 3, 11, 35, -3, 13, -20, 10, -22, 22, -11, -35, -4, -48, 44, -17, -28, 17, 10, -50, -63, -32, -26, -6, -31, 19, -28, 10, -3, 27, 22, 5, -12, 32, 17, -56, 5, 12, 36, 30, 16, -52, -6, -42, 5, 35, -52, 19, -33, -13, 25, 18, 32, 0, 0, -20, -20, -25, -41, -4, -66, 29, 28, 25, -5, 31, -20, -26, -38, 0, -4, 35, 37, -28, 50, -12, 26, -3, 64, -23, 16, 12, -23, -33, 34, 28, -30, 21, 11, -23, 17, 83, 22, 4, 0, 24, 49, 15, 9, -52, 8, -2, 20, -6, -8, -34, 2, 39, 27, -31, 47, -16, -11, -15, 5, 4, 34, 22, -8, -29, 57, -33, -10, 42, -5, 32, -20, -10, 7, 8, 38, 15, 0, 10, 7, 15, -8, 3, 37, -10, 12, -15, 14, -10, 33, -3, 5, 18, 18, 33, -17, -30, -10, 9, 12, 26, -31, -22, -6, -11, -32, -13, 24, -41, 24, 1, -36, 8, -4, -16, -21, 60, 18, -8, -40, -19, -2, -20, 12, 44, -10, -12, 10, -30, -21, -43, 28, -12, -29, 7, -3, -22, 0, 4, 4, 2, 18, -30, 29, -23, -36, 3, -39, -53, 18, -34, 13, 50, -38, 16, -8, 3, -13, -17, -24, -31, -19, -35, -39, 14, -7, 48, 38, 0, -51, 8, -14, 7, 11, -3, -15, -30, -57, -35, 37, 52, 4, 17, 12, 30, -12, -24, 46, 15, 41, 44, -64, -6, 27, -41, -20, 45, -3, -32, 27, 12, -16, -6, -11, -26, -31, 37, 22, 1, -64, 36, -15, 15, 1, 12, 40, 25, -26, -47, -9, 14, 13, 15, 16, -16, -10, 25, 17, -13, -16, 25, 0, -2, 45, 23, -33, 16, 27, -7, -4, -24, 35, 58, 32, 16, -21, 29, -20, 37, 7, -27, -16, 4, 23, -31, 15, 1, -32, -20, -15, -51, -23, -4, -14, -21, -63, 13, -14, -26, 7, -5, 39, -11, 6, -26, -38, 3, -51, -5, -14, 0, 11, 38, 32, -11, -45, 8, 22, -22, -9, 21, -35, 25, -8, -2, -25, -4, 21, -31, 35, -60, 10, -22, 46, -9, -11, 7, -34, -4, 8, -24, 22, 23, -40, 55, 63, 58, 27, 16, -59, 8, -34, 12, -21, 48, -13, -40, 27, -14, 32, 63, -18, -6, 10, -56, -34, -34, 18, 4, 66, 50, -3, -47, -3, -20, -28, 24, 32, 6, 38, -62, -37, -26, 2, 48, 35, 7, 17, -21, -8, -38, -13, -30, -2, -14, 2, -12, 37, 12, 29, 47, 20, -91, -46, 19, 63, 39, -40, 30, -27, 34, 15, 13, 41, -40, 16, 70 ]
McGrath, C. J. This is a bill to set aside the discharge of a mortgage executed by complainant’s decedent a few hours before her death, on the ground, of undue: influence and incompetency. On December 31, 1888, William James Major executed, to his sister, Margaret S. Kershaw, a mortgage for $14,689.77,. and, as collateral thereto, assigned to her bank stock, the-par value of which was $2,000. In February, 1890, Margaret S. Kershaw and her mother were living in a small-cottage on the farm owned by defendant, and about 80 rods from defendant’s residence. John S. Major, another brother, and the only other member of the family, owned an adjoining farm, and resided about five-eighths of a. mile east from William’s residence, which was about one-mile and a quarter from the village of Centreville. On Saturday, February 8, 1890, Margaret and her mother were both indisposed, and were brought to William’s-residence. The doctor was called in that day; visited them again on Sunday, on Monday at noon, and also at about. 6 o’clock in the evening, remaining until 7 o’clock, and. ' pronounced her much worse; was called again Tuesday morning at 5 o’clock, and found her failing rapidly; called . again at 11 o’clock, and found her in a comatose condi tion; and at 1 o’clock she died. The discharge- of the mortgage purports to have been executed on Monday, the 10th, and it is alleged to have been executed at about 10 -o’clock at night. The discharge contains the following recitation: “And now, being sick, and not expecting to live, and being desirous of giving to said William James Major all my worldly possessions, to the exclusion of alb my other relatives, and all worldly possessions being represented by said mortgage, and the notes accompanying it, I therefore hereby fully discharge said mortgage and the said indebtedness, and release the said William James Major from all liability upon the same, meaning to make full release of all claims I have against said William James Major, and choosing this method, instead of willing said mortgage and notes to him; and I therefore hereby declare that said mortgage is fully paid, satisfied, and discharged.” The only persons present at the execution of the paper were William J. Major, the attorney who prepared it, and •one William Meyers. William J. Major testifies that he had been involved for some time in a legal controversy with one Todd, his brother-in-law, with whom he had been in partnership, and that a bill had been filed against him claiming a large indebtedness; that his sister had frequently spoken to him with reference to this mortgage, saying that she wished that the Todd matter could be arranged so that she could discharge the mortgage; that— “During the afternoon [on Monday] she spoke again in regard to this mortgage and the Todd, matter, and she said she really wished it could be fixed up. She.said that she wanted to send down for the attorney, naming him, and have him come up and have him make a release of the mortgage and an assignment of the bank stock. I told her I thought that the Constantine Church case was in progress; that he couldn’t come until evening. The doctor went away that evening, just as we were ready to sit down to supper. After supper I went back into the room, and she said, ‘You haven’t sent for the attorney, have you?’ I told her, ‘No; I have not.’ She said, ‘I wish you would :send for him right away/ So I went out and told the hired man to hitch up the horse; that I wanted him to go over to town. I went back, and wrote a note to Meyers for him to see the attorney, and to have him bring up a release of mortgage. Just then John S. came, and I gave the note to Ernst, and sent him to Meyers. John came in and .spoke to my sister, and was about going away, and did not .sit down. She said, ‘ Stuart, stay awhile, and sit down and talk a little/ He sat down, maybe 10 minutes, and then went out into the sitting room. He stayed perhaps half .an hour.” That Meyers and the attorney came between 9 and 10 ■o’clock that evening; that the attorney prepared the discharge, and his sister executed it, and also executed an assignment ■ of the bank stock. The attorney says that Meyers came for him; that he -was busy in the office; that he sent word to Meyers that he was busy; that, after he got through with his busi.ness,— “ I don’t know what time it was, but I judge it was 'half past nine, — I went out into the other office, and found Mr. Meyers, and we rode up to the house. I went into the bedroom. She put out her hand. I took it. I said, ■‘Mrs. Kershaw, you are sick, and I did not hear of it until this evening.’ She said, ‘Yes; I am quite sick;’and .she said, ‘I sent for you.’ I said to her, ‘What do you want?’ and she said, ‘I want to discharge the mortgage that I hold against James, and I want' to give him what I have got.’ That is as near as I can recollect it. I don’t remember the exact language. I said to her, ‘Mrs. Kershaw, would it not be better to make a will?’ And she said, ‘I don’t want to make a will. I prefer to discharge the mortgage.’ And I had some other talk with her, quite a considerable of it, and the talk was probably five or ten minutes. I then said to her, ‘Very well, I will draft the paper;’ and I stepped out. I said to her, before, that I would, have to have the mortgage, and she said, ■‘James will get you the mortgage.’ I stepped out into the other room, and said, ‘Mr. Major, Mrs. Kershaw wants .me to discharge the mortgage that she holds against you. Where is it?’ James gave me the mortgage. I took the •mortgage, and sat dówn and drafted the discharge, and, after I had drafted it, I took it up and went into the-bedroom where Mrs. Kershaw was, and I read it to her,, and asked her if that was what she wanted, and she said, ‘ That will do/ That is the language she used, as near-as I can recollect. ‘Very well, then/ I said, ‘you sign it/ and I handed the paper to her, and I got a pen and some ink and a book, and gave her the book, or I put it-down, and she started to write, lying down. She said, ‘I can’t write my name lying down. You will have to lift me ■' up/- She then sat up in bed, with her feet out of bed, her book on her lap, and signed her name to the-paper. I recollect that she didn’t sign it very well, and she looked up with a kind of a smile, and said, ‘Is that all right?’ And I looked at it, and said, ‘Yes.’ I said' to her, ‘You acknowledge this?’ And she said, ‘I do/' and then Mr. Major, I think, handed me the bank stock.. I didn’t notice what it was. I hadn’t brought an assignment for that. It was all on the blank upon the back, filled out. I said to Mrs. Kershaw, ‘ Here is the bank stock-. Do you want to assign that?’ She said, ‘Oh, yes/' and wrote her name on that, and handed it back to me; and I said to her, ‘What shall I do with these papers?5" She said, ‘Deliver them to Mr. Major,’ or ‘Deliver it to James.’ Meyers signed as a witness, and I handed the-bank stock to James, and left the mortgage and notes-lying on the table.” ■ Meyers says that he went to the attorney’s office,— “And he came out and told me he would be ready in about half an hour. I went over home and stayed half an hour, and then went back, and the attorney was not. quite ready then, and I waited a little while. When I got up there, I helped unhitch the horse, and when I went into the house the attorney was busy writing. After-wards he took a paper that he had been writing, took it. into the bedroom where Mrs. Kershaw was lying on the-bed, and read it to her. He afterwards came out and acknowledged it, and I think asked me to sign that, and I did. I was standing near the door of the bedroom,, heard him read it over to her, and saw her sign the paper. As near as I can- remember, he asked her whether that, was what she wanted, and the reply that I heard was, it. was.” John S. Major testifies that he and his wife called at- William's house on Monday evening about 7 o'clock, and remained two or three hours, until half past 9 o'clock, standard time; that, on the way home, they crossed the-railroad track, and the train due at 9:30 crossed the highway in front of them; that, when he drove into the yard of William's house, he saw Ernst, the hired man, hitching-a horse to a buggy; that, after they had gone into the? house, “ Ernst came into the house in a few moments, with his cap and overcoat'on, and he waited a few minutes as-if waiting for orders, and they told him to put his horse out, that he need not go now;" that, at about 8 o'clock, the hired man went to his room. He further testifies that he and his wife offered to stay all night, and assist in the-care of the sick, but their offer was declined. He denies-that during his stay his sister volunteered any remark to-him. John's wife corroborates him in this story. Ernst is sworn, and says that on Monday evening,, when John S. Major came to the house, he (Ernst) was> hitching up the horse to the buggy; that defendant William had told him to do so; that, after hitching up, he-tied the horse to a post, and went into the house, and asked what they wanted in town; that Mrs. Major told-him to go and hitch the horse in the barn; that he did-so; that he did not take the harness off, because Mrs. Major said they wanted it ready; that he then went into-the house, and went to his room, and remained there-some time; that afterwards William Major called him, and told him to hitch the horse to the buggy, and go down- and get Meyers and the attorney; that he first went to-Meyers' house, and Meyers got into the buggy, drove down street, and hitched the horse in front of Wolfe's Bank; that-Meyers then went to the office of the attorney; that one Wilson, the village marshal, came along at that time, and asked what they were there for, at that time of night,, and Meyers said, “we are over for the doctor." Wilson,. the village marshal, testifies to this same conversation, and -says that it occurred just as Meyers and Ernst drove up to hitch the horse in front of Wolfe’s Bank, and he fixes the time at “ close to 10 o’clock; ” that the stores were •all closed, the lights all out, and the hacks had returned from the depot, where they had gone to meet the 9:30 .train; that Meyers went towards the attorney’s office. Meyers was an old employé of William’s, and William, in his testimony, at first strives to create the impression that the note was sent to Meyers because Ernst did not under- ■ stand English, but, after some evasion, he admits, upon ■cross-examination, that the purpose in sending for him was ■that he should witness the execution of the instrument. If the witnesses John S. Major and his wife tell the truth, .then it was about 10 o’clock, local time, when they left William’s house, and it is not true, as William says, that they remained but a few minutes. If what John S. and his wife .say relative to the direction of Ernst’s movements .is true, and Ernst’s testimony is correct as to his detention, then William’s story is not true, and there was an evident ■ design to clothe what was done with secrecy. If what Ernst and the marshal say is true, as to Meyers’ statement that they were after the doctor, then it would seem .that he, too, was in the plot, and had been enjoined to .secrecy. If the statement alleged to have been made by William to his sister in the afternoon of Monday, when .asked why he had not sent for the attorney, was true, it .showed a familiarity with the attorney’s movements. If it was not true, — and the attorney says that the case was at issue, but not on trial, on that day, — then it discredits William’s statement as to the whole of the alleged interview ■with his sister. If- what John says as to when he, left the ■house on Monday night, and the village marshal’s state-ment as to when he saw Meyers and Ernst, are also true, ■or if either is correct, and it is true that Moyers and Ernst waited some time for the attorney, it must have been at. least 11 o’clock before the papers were prepared and ready for execution. If William’s statement that his sister, as. early as Monday morning, had expressed a desire to discharge this mortgage, there seems to be no valid reason given why an opportunity was not given her. It does not. seem probable that the mortgagor would delay the execution of the expressed desire of the mortgagee to discharge-a mortgage amounting to $14,100 until midnight of that, day. This was Monday night. The doctor had informed the family that the sister was much worse. The mother lay seriously ill in another room. The sister dies the next-day, and the mother the day after. It was not improbable-that John and his wife should proffer their assistance for the night, and it was but natural that it should be: accepted. There is nothing improbable in the story told by John and his wife, either as to what occurred or as to-the sister’s condition on Monday evening; and upon all points they are corroborated, except by William and his wife. They tell substantially the same story as to decedent’s condition on Monday evening that the physician tells, and as to the incidents of that evening the testimony of' Ernst and Wilson supports them. John S. and Avife were: there on Tuesday morning. Both say that Margaret Avasunconscious; that, while thére, the mother remarked that-men had been there during the night, and that she -didn’t, know whether it was right or not; that this statement she-repeated, and Mrs. William J. Major, Avho was present,, said “she didn’t knoAV Avhat made mother talk so, unless it was the medicine they were giving her.” John S. testifies that he knew nothing of the discharge of the mortgage until after the appointment of the administrator, Avho, when, he was collecting data to prepare the inventory, was told by William of the discharge. Mrs. Kershaw died of double pneumonia. Dr. Sabin;, her physician, says that at his first visit, on Saturday, he found her temperature high, pulse rapid, tongue covered with a white coat, having a yellowish tinge; that she had had a chill; that she had a peculiar dusky, haggard, and tired look; expectoration rusty; an oppressed condition of the nerves; breathing difficult; the right lung was congested, the back part especially; complained of pain in her chest, -and difficulty in respiration; and which confirmed the idea that she had inflammation of the lungs, with a high fever. “ Thought there were malarial complications, and ■.addressed myself to the removal thereof. “ On Sunday, at 9 A. M., visited her again; found the bilious complication somewhat relieved, but the lungs no better; the inflammatory action was extending, and more advanced than I had anticipated; auscultation revealed -crepitation in the left lung, and difficulty in the respiratory murmur in the right; the difficulty was increasing; half of the left lung and a quarter of the right was inflamed; temperature high; pulse rapid; breathing not so labored, but shallow; her general appearance was better, but progress had been made in the lung complication; no material change in the nervous system; same haggard look and tired expression; expressed pain in breathing in her left -side, and a sense of fullness in the right. “ Monday noon found her in bed; she was worse; two-thirds of the left lung was involved, and three-quarters of the right was solidified; discovered crepitation in the right lung; inflammation extending more rapidly in the right lung; there was more duskiness in the face, and an inclination to drowsiness; the sputa had changed from a rusty to a prunish color, denoting an extension of the inflammatory process, more blood in the air cells, and destruction of lung tissue; the breathing and' respiration had increased rapidly, probably 20 per cent.; the face was flushed; there were nervous symptoms, and very much more prostration than on the previous day; talked with her considerably; told her that I desired to arrange, and did arrange, a paper in a pan so as to catch the sputa, and explained .that I wished to observe the changes therein, and she understood me. “ On Monday evening, about six o'clock, I found her ■failing; the prune-colored expectoration was more fluid in its character, indicating an advance of the inflammation, -and destructive tendency; the respiration was rapid, shallow, .and labored; temperature very high; pulse rapid, and not ■ so strong as on the previous visit that day, indicating failure; she had more of the cyanotic or dark bluish look; the -stupor was increasing; examined the sputa, and she asked, ‘Is that what you expected?’ That is all the talk I had with her. I was there for an hour, but had no conversation. “Q. Did she reply to your inquiries or talk? “A. Well, not much. When I could get her attention, •she did reply to some, I think. It was more difficult to get her attention and arouse her, but I think she understood. Her replies would be short, because of difficulty •and pain in talking. After answering the questions that were put to her, she would fall back in a stupor or sleep. She spent most of the time in a sleep or stupor, because ■she only talked when you talked to her. It was somewhat difficult to arouse her. I told the family, soon after I saw them that evening, that she was very bad. “ On Tuesday morning, at five o’clock, I found her much 'worse,' and failing evidently; the crepitation was more marked over the left lung, and she was perspiring; there was a dusky look, and some little coldness on the surface; the left lung was probably not much more- involved, but the right was thoroughly filled up; there was but a quarter •of the left lung fit for duty; her breathing was very rapid, and there was a rattling over the chest; there was an ■opening and shutting of the nostrils in breathing; she breathed probably 60 times a minute; the expectoration indicated a breaking down of the lungs; the stupor was very much worse, and more marked; I remained there until eight o’clock.” During this visit it does not appear that the patient spoke a word. At noon the doctor'visited her again, and found her in a comatose state. She died at 1 o’clock. Death resulted from the filling up of the lungs with mucus, in the progress of the disease. Counsel for both sides seem to have studiously avoided any questions to this witness as to the .competency of tho-patient on Monday evening, or at any later period, to ■comprehend a matter of the nature of that involved. Dr.“ Sabin had said, however, that, so far as he had any conversation with the patient, her answers appeared to be intelligent and rational. A number of prominent physicians were-called by each party as experts, but the opinions given by them were predicated upon entirely dissimilar hyjDotheses. The hypothetical question submitted by the counsel for defendants, after reciting the course of the disease, and the symptoms up to and including the last visit made by the-doctor on Monday, concluded as follows: “That during the afternoon of that day she requested that an attorney be sent for, for the purpose of discharging a mortgage which she held' against her brother, with whom she had always been on intimate terms, and on Monday evening she again made the same request; that the-attorney was sent for, and arrived about nine o’clock in the evening, and when he came she told him that she-wished to discharge the mortgage in question, and to-give everything over to her brother, and the attorney drew the paper, discharging the mortgage, and assigning the> property to her brother; that it was read over to the-patient, and she said it was as she wanted it, and she-signed and acknowledged the paper, and the notes and ■mortgage were then turned over to her brother, by her .direction; that up to this time the patient had shown no delirium in her conversation, but had always talked rationally. Under those circumstances, what would you say as to whether or not, in your opinion and judgment, the patient was mentally competent to do the business which she did transact, and to fully understand and appreciate its import?” Invariably the answer was, “I should say the patient was competent,” or, as one of the witnesses said, “I should think' from the whole question, and especially the latter portion of it, she was competent to do any business.”' It was hardly necessary to call an expert to answer that, question. The real inquiry here is whether the testimony ■of the witnesses who testify to the occurrences after the> brother left on Monday evening is credible; whether the capacity indicated by this testimony was consistent with the condition of the patient at 7 o’clock Monday evening, and at 5 o’clock Tuesday morning. The experts all agree that the lungs are a chemical laboratory, where the blood is purified and made nutritious, and the carbonic acid gas is thrown out and off; that this carbonic acid gas is poison; that, in the event of the inability of the lungs to perform their functions, the carbonic acid gas accumulates in the system, depresses the vital forces, and poisons the nerve centers and the brain; that in "some cases delirium results, in others, stupor; that stupor indicates brain poisoning; that the cyanotic or dusky hue of the countenance indicates the carbonization of the-blood, and that the supply of oxygen is ihsiifficient and the condition serious; that there are three stages to the disease; that stupor or delirium manifests itself first in the second stage; that the third stage is the process where suppuration begins, in which there is congestion, hepatization, and softening; that this softening may result in rotting, or it may turn towards health; that the testimony of Dr. Sabin showed a steady progress of the disease through these several stages, and that the patient had reached the last stage on Monday evening; that her condition at that time was serious; that the condition Tuesday morning indicated a constant progression of the disease; that the symptoms clearly indicated the gradually increasing stupor, until it reached the comatose state which, Dr. Sabin describes, existed at 11 o’clock on Tuesday. None of the expert testimony even suggests the probability of a cessation of this progression, of this increasing stupor, between the hours of 7 o’clock Monday evening and 5 o’clock Tuesday morning. There is a seeming conflict in the testimony of the experts as to the mental comprehension of the patient on Monday evening, but this conflict is largely due to the failure to get before the witnesses the same conditions. It is clear from the testimony of Dr. Sabin that the stnpor had advanced on Monday evening so that it was difficult to arouse her; so that the brain was inactive; so that there was no affirmative operation of that organ, and the mind was incapable of suggestion. The testimony as to the transaction four or five hours later indicates not alone capacity to comprehend, but activity of the brain, and exertion, inquiry, request, suggestion, dictation, and direction on the part of the patient. There is no pretense that she was aroused, her condition suggested to her, asked if she desired to make any disposition of her property, or even this disposition suggested to her; but it is alleged that she, of her own volition, gave minute and explicit directions, and exercised a choice as between a will and the discharge. The doctor informed defendants on Monday evening of her condition, but no word of inquiry is addressed to him by them as to her capacity to do what it is alleged by them that she had contemplated and had suggested a desire to do. It is only from the defendants, Meyers, and the attorney sent for to prepare this discharge, that there is' any testimony indicating mental activity after the doctor’s visit on Monday evening. William J. Major says that, at 9 o’clock Tuesday morning,— “I raised her up, and gave her the medicine, and she said she would like to sit up a little while. I bolstered her up with pillows in the bed, and she asked me if I thought she. was dangerously sick; and I told her in reply that anybody with pneumonia was always dangerously sick, but I said to her I hoped she would be better in a day or two. She said, ‘You look sick, too. You have been up two or three nights, and you ought to go to bed and sleep, for you look sick.”’ Elizabeth <S. Major says that on Tuesday morning she conversed with her long enough— “So that she inquired how mother rested, and if I had turned the bed head towards the north. When they came home the head of the bed was towards the west, and when mother occupied the room we always had it towards the north, because mother felt so much more at home with the bed standing that way. She asked if I had slept any during the night, and if I was tired.” This testimony is utterly irreconcilable with that of the physician, and with all the testimony as to the probabilities. Dr. Sabin had been instrumental in separating the mother and daughter on Monday noon. The two were much attached. The doctor came on Monday evening to see both patients. Not a word is said by her to the doctor as to her mother’s condition. Her mother had been living with her, and it does not appear that her mother ., had any property, at least sufficient for her support. She is alleged to have conveyed away all she possessed, without reference to the attachment she had evinced for her mother, and without any reference to her. At 7 o’clock Monday evening the doctor leaves the patient in the condition described by him. Four or five hours thereafter the discharge is executed. At 3 o’clock Tuesday morning her • condition becomes alarming to defendants. Ernst is sent away to notify John, and to bring the doctor and Meyers. The doctor gets there at 5 o’clock. He finds no unusual condition, but that the disease and stupor and weakness have progressed during the hours since the last visit. He remains until 8 o’clock. At 9 o’clock, William alleges, ■the patient asks to sit up in bed; and asks if he thinks she is dangerously sick; tells him that he looks sick, and that he ought to go to bed. At 11 o’clock the doctor returns, and finds her in a state of coma, and, as he terms it, “about dead.” Wherever the testimony of defendants respecting the com dition of Margaret S. Kershaw after 5 o’clock Monday evening relates to a period of time covered by the observation of the physician, it is in conflict with that of the physician; wherever it relates to a proximate time, it is¡ entirely inconsistent with that of the physician; and wherever it relates to a more remote period, it is not only utterly inconsistent with that of the physician, but it is opposed to all the probabilities. The circumstances attending this midnight transaction, and the atmosphere of concealment that pervaded it, throw suspicion upon the entire transaction. The testimony associates with this transaction conduct on the part of the beneficiaries incompatible with a belief in her mental capacity. It discloses conduct on the part of one of the witnesses, who claims to have been ■present, indicating a participation in the efforts to conceal.. The instrument prepared for signature recites more than was necessary in a simple discharge, and its preparation indicates a desire to protect the beneficiary, and puts into* the mouth of this dying woman words that she had not. uttered. A jury was called at the instance of -complainant, and the question of undue influence and incompetency submitted, and the jury found for defendants. A motion was. made to set the verdict aside, and the circuit judge granted the motion, treated the case as having been heard without, a jury, and dismissed the bill. It is urged that the finding of the jury, and the conclusion of the court below, should be regarded in the consideration of the case here. How far the conclusion of the court below was affected by the finding of the jury we are not advised. A large mass; of incompetent testimony was calculated to influence and bias the jury; was admitted under objection; and, in spite-of objection, the court treated the trial as a chancery hearing, and declined to interfere. In the submission of any special question to a jury, whether the verdict is to be regarded as final or as advisory only, the same rules oí evidence should he observed as in the ordinary jury trial; otherwise, the verdict should have little weight. The decree of the court below is reversed, and a decree •entered here for complainant, setting aside the said discharge of the mortgage; and the record wall be remanded for further proceedings, relating to the foreclosure of said mortgage. The rights of the wife can be fully protected in that proceeding. Complainant will be entitled to costs. The other Justices concurred.
[ -6, -16, 0, 9, 18, -23, 36, 31, 21, 3, -18, -3, 28, 9, -23, 61, 1, -71, -21, 24, -33, -22, -15, -11, -15, -6, -18, -44, 0, 34, 3, -43, -11, 70, 42, -78, 31, -14, 8, -14, 0, 3, 31, 27, 18, 50, -25, -36, -12, 18, -5, -58, 16, -35, -6, 23, -26, 11, -33, 17, 5, -90, 8, -53, -52, 32, -24, 29, -12, 4, 41, -8, -22, -20, 12, 0, -25, -1, -46, -31, -24, -58, 15, -28, -30, -53, -12, 20, -28, 63, -3, 13, 9, -21, 2, -44, 17, 70, -12, 45, 16, -3, 41, 32, 9, -10, 13, -53, -55, -17, 13, -24, 67, 38, 16, -8, -47, 22, 13, 32, 8, 22, 31, -83, -32, 26, -115, 21, 46, 0, 24, -46, -46, -25, -22, -6, 6, -15, 27, -17, -33, 0, -9, -69, -20, 33, -63, 1, 27, -17, -63, 31, 27, 46, 34, -27, 15, -19, 6, 20, 10, -50, 48, -47, -66, -35, -44, 0, 8, 22, 67, 56, -96, -10, 17, 6, 30, -31, 35, 41, 3, 33, 5, 27, 20, -26, 5, 7, 30, -2, -10, 7, 32, -9, -12, -6, -8, -39, 69, 12, -12, -31, 8, -14, 26, 0, 20, 40, -33, -2, -24, 0, -59, -15, -42, 7, 29, -66, -3, -15, 12, 84, 57, 12, -43, -64, -13, 7, -5, -28, 0, -2, -28, 21, 2, 51, 32, -11, -1, 43, -41, 17, 19, -43, -27, 40, -38, 9, -12, -11, 9, -29, 17, 81, -6, 85, -10, 36, 20, 19, -12, 20, -26, 25, -4, 6, 5, -4, 46, 17, 34, -14, 53, 32, 6, -17, -3, 26, -21, -5, 58, -16, 13, -5, 23, -51, -27, 2, -10, -30, 17, -58, -11, -15, -7, 29, -9, -19, 28, -5, -18, -41, 33, -28, -7, 3, -8, -16, 9, -58, -21, 30, 41, -40, 23, -15, -61, 0, 4, 28, 27, -46, -34, -26, -30, -24, -8, 13, -61, 56, 15, 5, 1, 6, 8, -13, -6, 49, -28, -25, 25, -1, -19, -13, -11, -29, -7, -4, -22, 9, -51, 28, 6, 60, 18, 41, 0, 32, 5, 16, -23, 5, -25, 4, 33, -29, -4, -38, 18, -16, 17, 44, -31, 10, -13, 38, -55, 0, 0, 10, 35, 13, 35, 84, -37, 38, 15, 2, 10, 28, 12, 26, -10, -5, -29, 4, 1, -51, -92, -38, 21, 5, -34, 0, -37, 17, -30, 3, 0, 40, -8, -9, 56, 3, -5, 9, -23, -20, 7, -15, 40, 60, 46, 5, 9, -23, -23, 36, 27, -80, -10, 49, 14, 1, 3, 37, -39, 22, 30, 17, 30, 0, 69, 49, 23, 70, 3, -61, 39, -18, 18, 1, -17, 48, 61, -4, 4, 16, -3, 0, 0, -42, -5, 20, -1, 29, 2, -7, 50, 17, 13, -38, 61, -24, -18, -18, 54, 19, -5, -31, -16, 5, 12, 13, 1, -29, -46, -11, -8, -12, 42, -58, 0, 10, 14, -20, 0, -62, -45, -14, 22, 15, 27, 39, -12, -75, -29, 7, 35, 11, -26, -29, 22, 24, -57, 49, 33, -24, 68, 18, 8, -7, -64, 1, -33, -23, 24, 29, 18, -34, 2, 46, 14, 31, -19, -28, -38, -9, -11, -39, -1, 2, 56, 34, 11, -7, -17, -30, -16, 23, -61, -40, 22, 0, 18, -26, 6, -32, 17, 18, -36, 12, -22, -31, 17, -55, 38, -9, -41, -45, -22, 0, 0, -7, -13, 17, -18, 3, 7, 27, -25, -29, 3, -10, 0, 0, -10, 44, -31, 32, -36, 7, 4, -1, 0, -49, 2, -11, -1, -27, -78, 0, 7, -3, 3, 0, -9, 20, 27, 16, 8, 22, 26, 32, -25, 16, -7, -12, -19, -19, -1, 74, -11, -6, -67, 14, 16, 21, 0, 14, -27, -38, 8, 5, -15, 0, 32, 9, 34, -90, -31, -1, -27, 4, -59, 72, 23, -17, 30, -15, -50, -29, -11, 2, 56, -35, 13, 6, 5, -10, 68, -25, 70, 19, -15, -13, 22, 36, -46, 22, 30, -25, 13, -38, -13, 20, 4, 42, 26, -39, -4, -7, 49, 31, -35, -7, 17, -2, -5, 32, 1, -34, -24, 5, -22, 6, -4, 22, 37, -6, 69, 4, 22, 79, -12, -4, -28, 7, -41, -10, -15, 35, 17, -39, 12, 3, 33, -16, 22, 26, -18, -38, 29, 9, -9, 12, -3, -17, -27, 33, -14, 0, -65, 0, -30, -22, -26, 64, 16, -35, -36, -23, -65, 10, -23, -26, -77, -3, 34, 32, 4, 22, -11, -35, -27, -3, 17, 5, -25, -2, -10, 76, 26, 6, 28, 13, -36, 11, 31, -11, -13, 11, -58, -6, -5, 14, -63, -37, -25, -4, 45, -60, 33, -68, 26, -33, -4, 13, 47, -11, -16, -6, -40, 34, -68, 6, -3, 0, -13, 1, 11, 18, -29, -18, 65, 17, 7, 4, -51, 22, -25, -65, -12, -37, -12, -10, 6, -10, -21, 13, 0, 49, 43, -33, 4, 7, -30, 32, -30, -33, -25, 7, -15, 0, 33, -22, -6, -18, 4, 9, -64, 28, 29, 19, 11, -29, 44, -10, -17, 0, 10, -36, 31, -2, -63, -18, 0, -31, -1, -31, -1, -5, 26, -39, 21, 20, 11, 53, 16, -6, -34, -13, -8, 18, -49, -24, 23, -42, 17, 39, -10, 0, 2, 47, -9, 26, 15, -49, 19, -12, -18, 58, -37, -23, 5, 37, 13, -14, -21, 3, -3, -14, -11, -47, -38, -29, 14, 75, 31, 47, -19, 12, -13, -50, -43, 45, 44, 0, 7, 2, -5, -18, 37, 26, 24, -25, 27, -24, -64, 15, 0, 8, -56, 24, -26, -68, -1, -10, 27, -24, 26, 37, 22, 38, -5, 31, 94, -29, 43, 13, 13, -33, 76, -12, -11, 6, -2, -22, -3, 33, -11, -12, 6, -31, 17, -2, 41, 6, 17, -60, 23, 1, -25, -30, -21, -8, 45, 3, 30, -18, 11, 9, 8, 54, -20, -6, -1, 1, -26, 6, 8, 18, 2, 80, -23, -2, -14, 28, -7, 30, 15, -30, 34, 27, 70, -45, -17, 15, 7, -38, -23, -18, 9, 19, -28, -14, -8, 15, 37, -17, 57, -5, -14, 36 ]
Montgomery, J. The record in this case contains the testimony offered on the trial and the judgment. No exceptions were taken to rulings on the trial, but it is sought to review the conclusion of the trial judge upon the whole testimony, though no findings of fact or of law were requested. Under these circumstances we cannot review the conclusions reached by the trial judge. We have no means of knowing definitely the grounds upon which the trial judge proceeded. The defeated party has not a right to a trial de novo in this Court. The case is ruled by Haines v. Saviers, 93 Mich. 440, and cases cited. Judgment is affirmed, with costs. The other Justices concurred.
[ -17, 20, -1, -1, -21, -13, 18, 14, -4, 31, 7, 3, 9, 11, 19, -73, 12, -34, -32, -45, -61, 15, -34, 4, 22, -15, 28, 30, 35, -11, 4, 13, -31, 13, -21, 10, 29, 32, 39, 21, 9, 12, 0, -18, -40, -30, 26, 9, -3, 11, -38, -5, -30, -3, 34, 27, 12, 38, -44, 36, 8, 15, 55, 28, 2, -72, -33, -50, 7, -68, -50, -14, -4, -56, 29, -39, 14, -13, -41, -4, 11, 35, 58, 0, 12, -38, -8, -62, -1, 19, 2, 24, -38, -11, 14, -3, 42, -11, 51, -3, -1, -12, -24, -8, -24, -32, -21, 10, 28, -17, 14, 14, -1, -21, -10, -18, -47, 13, 8, -45, -19, 36, -10, 49, -15, 4, 21, -12, -12, 4, -4, 18, 23, 9, 23, -20, -2, 25, -52, -13, 76, -1, 45, -23, 42, 36, -28, 21, -21, 6, -3, -16, -3, 14, 41, -28, -57, -38, 58, 5, 24, 38, -71, -17, 7, -14, 32, 47, 35, -55, -3, -2, 47, -26, 17, 13, 5, -2, 10, 14, 27, 28, 2, -61, -19, 42, -26, 0, -42, -95, -36, 44, -15, -39, 9, 33, 22, 34, 21, 57, -14, -8, -9, -3, 15, 29, -9, -68, -23, 33, -14, 12, -11, -60, 9, -14, -16, 7, -27, -16, 29, 13, -8, -9, -36, -5, 19, 35, -13, 0, 16, 34, -10, 13, 7, 3, -8, -25, 1, -18, -11, -32, 45, 3, 41, -20, -29, -20, 44, -4, -3, 16, -4, -40, -74, -58, 11, -16, -24, -6, -15, 64, -35, -1, -28, 4, 48, 13, -6, 16, -12, -30, 1, -15, 10, 8, 17, 7, -15, 31, -13, 27, 10, -23, -126, 37, -9, 26, 50, 32, 36, 0, -39, -7, 44, 3, 21, -8, 19, 1, 24, -11, 7, 59, -2, -1, 0, 22, -29, -2, 9, 50, 10, 25, -27, 23, -41, -3, 33, 1, -72, -24, 33, -71, 20, 26, 27, -75, -26, 21, 38, 67, -8, 55, -26, -11, -50, 13, 57, 2, -19, -45, -41, -20, 39, 16, -52, 31, -11, -22, -24, -13, 9, -9, -6, -40, 23, -50, -7, -52, 43, -63, 46, 13, -9, -5, 18, -6, 20, 35, 26, -11, -27, 42, -32, -19, 50, -91, -55, 27, -56, 24, 0, -13, -9, 15, -6, -18, -23, 9, -28, -20, 2, 8, -16, 10, 4, 9, -3, -29, -10, 32, -1, 54, -58, 31, -28, -43, 22, 44, 34, 16, -23, 8, -14, -10, 14, 31, 34, -62, -3, -16, -10, 27, -29, -18, 18, 22, 47, -8, -33, -29, -46, -45, -23, -23, -16, -38, 18, -7, -52, -3, -70, -4, 23, -7, 42, 41, 35, -4, 44, -13, 13, -22, -34, 23, -11, -57, -23, 24, -14, -13, 2, 43, 12, 26, -55, -11, -1, -47, 36, 7, 33, 22, -44, -29, -1, 21, -4, 43, 43, 0, -30, 20, -38, 14, -30, -22, -19, 16, -2, 8, 49, 13, -17, 33, 35, 19, -27, 9, -19, 29, 22, -74, 6, -28, -8, -28, 0, 9, 45, 15, 33, 7, -29, -28, -9, 23, 0, 35, 50, 6, 1, -27, -44, 1, -23, -13, 6, -19, 61, 94, 22, -1, 7, 19, 21, -48, -9, -12, -21, 21, 4, -16, -5, 15, -44, -9, -6, 65, 43, -41, -19, 5, 11, 5, 59, 12, -32, -20, 20, -4, -7, 33, 79, -9, -14, -3, 62, -48, 60, 0, -34, 9, 10, -98, 22, 31, -35, -29, -21, 12, 2, -43, -15, -23, 38, 11, 4, -38, -69, -7, -10, -20, -82, -20, 10, 4, 4, 52, 26, 4, -19, 12, -9, -22, -14, -27, 18, 3, 47, -29, -40, 12, 2, 3, 1, -7, 2, 6, 8, -28, -30, -50, -6, -3, 28, -1, -36, 9, 22, 4, -8, -11, -4, 57, 28, -18, -45, 25, 4, 11, -21, -49, 35, -32, -40, 11, -12, -16, 16, 62, 55, -4, 3, 15, 34, -35, 24, -34, 30, -9, -16, 25, 35, 10, -19, -16, 11, 46, 57, 19, 68, 18, 25, 33, 23, 18, 16, 49, -13, -30, -26, 14, 23, -3, -21, 56, 30, 2, -2, 17, 36, -5, -7, -48, 46, 43, 7, -42, 6, -1, 25, -23, 6, 6, -4, 10, 27, 34, -49, 11, -31, 72, 12, -3, -14, 27, 29, -10, 26, -23, 36, 9, -19, -24, 33, 23, 51, -5, -11, 17, -11, 55, -7, 41, 36, -30, -23, -20, -35, 35, 4, -37, -21, -25, 31, -41, -48, 46, 33, -1, -27, 31, -53, 29, 11, -39, -8, 3, -14, 5, -51, -24, -16, 8, 1, 18, 5, 21, 19, -46, -15, -9, -2, 34, -17, 13, -6, 2, -10, -68, -29, 65, 35, -57, -12, -19, -54, 23, 14, 9, -18, 29, 18, 20, 26, -6, 0, 16, -8, 15, 23, -31, -16, -4, -11, 24, 39, 20, 7, -7, -23, -36, 31, 19, -11, -16, 46, 1, 9, 10, 6, 5, 1, 9, 27, -32, -19, 0, 46, -22, 31, 40, 30, -46, -8, 0, -26, -51, 2, -6, 4, 36, 16, 4, -15, 4, -19, 21, 16, -20, -18, 0, -3, -47, -6, -25, 32, 42, -6, 26, -31, 2, 29, 30, 25, 17, 21, -6, 14, 19, -14, -7, -40, 46, -30, 5, -26, -14, -29, -37, -5, -2, -7, -11, 37, -8, -42, -13, 43, -41, 51, 52, -39, 8, 4, -24, 15, 14, -27, -28, 14, 13, 57, -2, 8, -2, 35, 65, -8, 44, -21, -27, -1, -3, -41, -4, 0, 3, 13, 34, -14, 5, -1, -15, -22, -40, -67, -3, -11, -40, 4, -39, 0, 23, 50, 2, 4, 16, -9, 11, -54, -23, -23, 0, -31, 34, 2, 45, -4, -15, -15, 22, -13, 11, -58, -4, -5, 41, -26, -7, 32, 16, 6, 26, -21, -21, -26, 46, 9, -15, -34, -34, 0, -51, 6, 33, 4, -49, -29, -24, -77, -13, -32, -26, -51, -7, -12, -36, 15, -40, 49, -40, -8, 12, -10, -5, -20, -1, -30, 31, -6, -6, -7, -13, 30, 2, -31, 13, -39, 29, 17, 21, -43, 17, 6, -77, -2, 50, -19, 63, 42, 12 ]
Durand, J. On or about April 24, 1888, George R. Avery, who was the assessor of the defendant school-district, had some talk with plaintiff’s agent about the purchase of Yaggy’s Anatomical Study, which is an atlas containing 40 or 50 pages of plates and printed matter prepared for teaching anatomy and physiology, with the special purpose of showing the effect of alcohol and nicotine upon the human system. Thereupon the plaintiff’s agent applied to Oscar F. Perry, who was the director, to sell the study to the district. A contract for the sale to the district was then made, and signed by Oscar F. Perry, upon which the plaintiff’s agent took the contract or order to George E. Avery, the assessor, rvho also signed it. He then took it to George Hunt, the moderator of the district, for the purpose of obtaining his signature, but he refused to sign it. It is admitted that neither previous to nor at the time of signing the contract were the district board, or any two of them, together, nor did they act together as such in reference to the contract, but that they acted separately in signing it. After it was signed the plaintiff, in pursuance of it, sent the study referred to to Mr. Perry, at Perry, Shiawassee county, with an order to be filled out or signed, providing for the payment of $35. The order reads as follows: “Locks, Michigan, April 24, 1888. “Assessor of School-District No. 1, Township of Locke, County of Ingham: “Pay to Western Publishing House, or bearer, on the first day of January, 1889, at Exchange Bank in Williamston, Michigan, the sum of $35.00, out of any moneys in your hands belonging to said district in incidental fund, for one copy of Yaggy’s Anatomical Study, with interest at 7% per annum. By order of the board.” When the study and the order were received, Mr. Perry signed the order as director, and sent it by his daughter to Mr. Hunt, the moderator, who also signed it, and returned it to Mr. Perry, who forwarded it to the plaintiff, and took the study to his own house. Mr. Perry, the-director, and Mr. Hunt, the moderator, were not together when the last order was signed, and the school board never met together as a board to act upon the question of the purchase of the study. At the annual meeting of the school-district in September, 1888, Mr. Perry took the study to the meeting for the voters to examine, and he made a report of what had been done in reference to its purchase. The district refused to make the purchase of the study, or to recognize what -had already been done in that direction, and the district has ever since that time refused to adopt the report of its officers or to accept the study. The study has never been used in the school, and has been in the possession of Mr. Perry, in his house, ever since it was received, and there has been no vote of the district adopting it as a text-book. After the annual school meeting in September, 1888, Mr. Perry wrote the plaintiff that the district refused to accept the study, and ofEered to pay express charges both ways if plaintiff would take it back. This offer the plaintiff refused, and, when the order became due, demand for payment was made and refused, and this suit was then brought to recover upon it. The circuit judge found, as a conclusion of law, that the contract of purchase was without authority, and that the order was not a valid claim against the district, and gave a judgment in favor of the defendant. We think the circuit judge was right. The director is expressly prohibited from making purchases of this character by subdivision 6 of section 5073, How. Stat., which provides that— “ Nothing herein contained shall be construed to authorize the director to purchase charts or any apparatus to be used in the school room without a vote of the district authorizing the same.” Neither can he gain any power by joining with the other members of the district board in making such purchase, for the board itself is not authorized to do so. Board of Education v. Common Council, 80 Mich. 548. Purchases of this character can only be made when authorized by a vote ■of the district, and the power to make them is given to the •qualified voters of the school-district, when lawfully assembled, and to no one else, as is seen by a reference to subdivision 6 of section 5073 referred to, and subdivisions 7 ■and 12 of section 5052, How. Stat. See, also, Gilson v. School-Dist., 36 Mich. 404. Section 5067, How. Stat., as amended by Act No. 165, Laws of 1887, does not change the general rule as above .stated. While these charts may be convenient, they are not absolutely necessary in order that effect may be given to the purpose of the law. Yaggy v. District Tp., 80 Iowa, 121 (45 N. W. Rep. 553). The circumstances of this case show plainly the wisdom ■of the provisions of the statute which confide the power of making purchases of this character to the qualified voters ■of the school-district. They undoubtedly save the people from many useless and extravagant purchases urged by interested parties upon school-district officers when met (as they were in this ease) singly, and who, in the hurry of private business, are often induced to sign contracts to which they would not consent if given an opportunity to have the subject fairly discussed at a regular meeting of the district board, or at a meeting of the qualified voters •of the district. The judgment is affirmed, with costs. The other Justices concurred.
[ 24, -6, -15, -12, 21, 6, 11, 71, -34, 8, -17, -51, 39, 20, 24, -28, 21, 21, -5, -38, 42, 20, -25, 3, 24, -42, 10, -46, -16, -33, 10, 36, -25, 8, 36, 46, 32, -37, 3, -41, 9, 8, -5, 23, 7, 12, -17, -34, 45, -14, 11, -2, -3, 14, 1, -15, 16, 26, 52, 2, 26, -12, 36, -64, -26, -25, -26, -16, -8, 2, -27, 10, 43, -47, 6, -21, 0, -9, 15, 39, 34, 2, 10, 12, 5, 24, -14, -15, 17, 32, -1, -14, 3, -7, 32, 5, -41, 4, -9, -36, 65, 21, -42, -13, 17, -13, 0, -10, -32, -15, -7, 16, 48, -55, 13, -74, 31, 49, 2, 8, -26, 19, 17, 13, -5, 8, -32, -14, 16, -13, -21, -5, -48, 6, 43, 33, -18, 27, 18, -45, -84, 23, -8, 15, 19, -13, -75, -12, -34, -8, -24, -2, 12, 18, -28, -6, 58, 27, 52, -52, 4, -14, -10, 20, -21, 54, 23, -16, 16, 35, 33, 16, 38, -54, -17, -21, 40, 36, 0, 48, 29, -66, 36, -7, -10, -55, -22, -5, 13, 30, -34, -31, -41, -68, -50, 23, 6, 10, -17, -18, 11, -6, 17, -16, 10, -15, -35, -12, -51, 36, 5, 11, 0, -19, -42, 5, -37, -11, 8, -26, 26, -15, 37, -11, 24, -13, 43, 46, 26, 2, -6, 52, -1, 4, 0, 2, 10, 1, -6, 13, -3, -16, -19, -19, 9, 8, -44, 3, 3, 29, -32, 53, -39, -30, -17, -6, 5, -32, -24, -9, -19, 29, 21, 29, -29, -24, 25, -19, 0, 3, -68, -4, -36, -27, -27, -50, -28, -55, -19, 24, 44, -57, -8, 2, 12, 1, -20, 14, -2, -27, -19, 14, -52, -71, 40, 34, 37, 26, 44, -47, 25, -26, 0, 19, 4, 29, -1, -6, 3, -41, 11, -21, -44, -4, 18, -42, -32, -5, -11, 20, -60, -43, -16, 48, -4, -31, 35, -10, 5, 18, 7, -30, -28, -10, -40, -28, -2, 0, 70, -46, 37, 51, 12, 57, -9, 15, -49, 2, 8, -43, -8, -48, 36, 19, -41, 33, -14, 32, 50, 59, -24, 29, 54, -5, 31, 14, -26, -20, 17, -20, 15, 16, 45, -38, 63, 26, 7, -26, 17, 31, -22, 29, -2, 7, -11, -21, 52, -17, 18, -20, -19, 24, -3, 4, -74, -65, 31, -19, -11, -77, 0, 15, -16, 5, -53, 49, -24, -22, -5, -40, 39, 37, -27, -42, 19, 24, 31, -9, 0, -38, 16, 33, -46, 53, 31, -39, -11, 13, 16, 5, -30, 3, 42, -22, -2, -55, -40, 53, 14, -6, -6, -27, -22, 24, -22, -32, 32, 78, 10, 29, 11, 18, -1, 77, -5, 41, 9, -33, -3, -2, -39, 16, 26, 5, -23, 13, -6, 0, -31, -16, -46, -14, -12, -59, 7, -60, 28, -22, 36, 43, 67, 20, -41, 10, -25, 36, -41, -25, -35, -5, 8, -63, -8, 16, 17, 43, 10, 17, 56, 42, -17, -28, -9, -25, 24, -21, 7, 8, 12, -15, 36, -4, -14, -33, -12, 21, 32, -17, -28, -16, 37, -9, -41, -24, 9, 7, 53, -33, -20, -37, 2, -55, 59, 34, -8, -36, -13, -2, 34, -15, -29, -34, 47, 27, 3, -25, -36, 33, 42, -19, 13, -8, -6, -53, -29, 60, 27, -20, -13, 19, -48, -16, 0, -33, 60, -12, 7, -38, 0, 9, -6, -26, 17, -6, -53, -51, -23, -41, 9, 25, -40, 9, 38, 8, -20, -12, 80, 18, -38, 35, 7, 10, -46, 9, 3, -16, -6, 25, 14, 20, 24, 11, 23, 20, -33, -3, -7, -13, -14, -20, 22, -18, 20, -2, -10, 8, -6, -20, 47, 42, -9, 14, 14, -16, 13, 41, -44, 2, -3, 1, 0, -21, 23, 54, -7, 27, 24, -9, -20, -5, 0, -61, -43, -12, -9, 28, -74, -15, -5, -42, -66, -22, -3, 46, -61, -44, -65, -23, -1, -9, 38, -45, -58, 55, -16, 10, 40, 17, -7, -28, 6, 4, -34, -37, 2, 2, -51, 67, 61, 15, 27, 56, 59, 0, 11, 12, -6, 3, -23, -51, 54, 59, 0, 55, 3, -23, -15, 13, 40, 0, -30, -14, -54, 57, 3, 1, -22, 2, 7, -12, 20, 33, -3, 14, -18, -22, 35, 54, -30, -30, 12, 15, -23, 2, 2, 33, 63, -7, 3, -61, -47, -37, 35, -37, 17, 75, 36, 30, 80, -18, 6, -38, -41, -9, -15, 4, 44, 46, -31, -20, 23, 14, 8, 7, 18, -26, 21, 20, -31, -4, 1, 39, -53, -33, 17, 25, 28, 20, 5, -10, 54, -46, -23, -37, -38, -12, -37, -19, -8, -40, 67, -33, -60, 8, -27, -12, -7, 20, 28, -13, -24, -11, 5, -18, -48, 10, 23, -49, -20, -10, 18, -23, 39, 31, -14, 1, 15, 14, -14, 31, -53, 32, 5, -72, 34, -15, -21, -55, -21, 15, 6, 34, -30, 35, -4, -4, -14, -3, -2, -30, -11, -13, -11, -59, -14, -2, -32, -48, -14, 37, -5, 53, -11, -24, -34, -30, -23, 24, 38, -27, -33, -13, -32, 41, 23, 3, 33, -35, 53, 60, 43, 7, -13, 7, -9, 77, 70, -32, 13, 35, -7, -23, 41, -6, -15, 50, 8, -26, 1, 18, 10, -1, 16, -27, -8, 29, 41, -3, 63, 0, -19, 66, -33, 1, 23, -17, -23, -4, 0, 24, -10, 0, 18, 15, -23, -21, 20, -36, -7, 35, 11, 3, -42, 3, -76, -58, -27, 26, 27, -16, 66, -56, -11, -10, 2, 2, 34, 33, -33, 97, 13, 16, 11, -23, 24, 20, 38, -11, 31, 2, 32, 38, -48, 35, 55, 15, -17, -32, 15, 10, -20, -14, -20, 50, -85, 0, -24, -17, -30, -26, 73, -38, -22, -28, -14, -12, 30, 87, 20, -28, -27, 40, 4, 7, 25, -45, -11, 27, 54, -6, -29, -29, -40, 9, 3, 27, -11, -39, -37, 37, -46, 25, -4, 2, 43, -5, 8, 37, 11, -20, 17, -53, -21, 55, -11, -39, 18, -38, 21, 16, -10, -6, 24, -8, 44, -6, 21, 7, 41, -9, -57, 27, -25, 25 ]
T. M. Burns, P. J. On February 18, 1969, while in the course of her employment with the defendant, plaintiff fell on a concrete floor after slipping in a pool of oil. On June 9, 1970, the parties to this action entered into an "Agreement to Redeem Liability” under which, in exchange for $10,500, plaintiff waived any right to medical benefits and weekly payments under the Workmen’s Compensation Act arising from the accident. A hearing was held before a workmen’s compensation referee on June 15, 1970, and a redemption order was entered. On November 1, 1971, plaintiff filed a claim for benefits in the workmen’s compensation bureau seeking benefits for the February 18, 1969, accident. The referee dismissed the claim with prejudice, finding that defendant’s liability had been redeemed. The appeal board affirmed. On August 31, 1973, plaintiff filed this action to set aside the redemption order. Plaintiff alleged that the February 18, 1969, fall resulted in severe pain in the back, shoulders and buttocks. She was examined by several doctors at defendant’s direction. All the doctors diagnosed plaintiff’s medical problems as minimal, so plaintiff attempted to return to work but found the pain unbearable. Plaintiff was again examined and her symptoms were said to be due to either a sprain, bursitis or a psychosis. Believing that she had no real physical illness, plaintiff settled with defendant for $10,500. After she signed the redemption agreement plaintiff discovered that she had a herniated disc and a fractured coccyx. Plaintiff’s pain was not "in her head” but in fact was caused by bone spurs compressing nerve roots in the spine. Plaintiff alleged that there was a mutual mistake regarding the nature of her injuries due to the erroneous diagnoses of the physicians to which she was sent. Plaintiff thus sought to have the redemption agreement nullified as being unfair and based upon a good faith mistake on the part of both parties. Defendant moved for and was granted summary judgment. The trial court ruled that a redemption order issued by the workmen’s compensation bureau is a final determination that cannot be vacated by a court exercising equity jurisdiction unless the order is shown to have been fraudulently procured. Plaintiff appeals. In granting summary judgment for the defendant, the trial court relied upon the rule set out in Johnston’s Administrator v United Airlines, 23 Mich App 279, 285; 178 NW2d 536 (1970): "A redemption order is a final determination and an award made and accepted cannot be disturbed except upon a showing that it was procured by fraud. Panozzo v Ford Motor Co. (1931), 255 Mich 149 [237 NW 369]; Catina v Hudson Motor Car Co. (1935), 272 Mich 377 [262 NW 266].” We find that this rule describes too narrowly the available judicial relief from a final redemption order. An approved redemption agreement, unlike an approved lump sum settlement agreement, is not subject to reopening by the workmen’s compensation bureau upon a showing of change in the claimant’s physical condition. Norbut v I Stephenson Co, 217 Mich 345, 347; 186 NW 716 (1922). Relief from a redemption agreement is available, however, in equity. Panozzo v Ford Motor Co, 255 Mich 149; 237 NW 369 (1931). In Panozzo the claimant sought to have a compensation settlement order set aside, claiming that it was procured by fraud. The Court followed the rule that a court of equity may grant such relief from a final settlement receipt which was procured by fraud. The Court did not say that such relief was available only when fraud is shown. Nor do the cases cited in Panozzo limit relief from settlement or redemption orders to actions in which fraud was alleged and proven. In Smith v Port Huron Gas & Electric Co, 217 Mich 519; 187 NW 292 (1922), and American Life Insurance Co v Balmer, 238 Mich 580; 214 NW 208 (1927), the Court compared workmen’s compensation awards to awards of arbitrators, stating that they were res judicata and could be attacked only in equity where the applicable claim of fraud, accident or mistake could be made. See Palmer v Patron’s Mutual Fire Insurance Co of Michigan, 217 Mich 292; 186 NW 511 (1922). In cases decided since Panozzo the Supreme Court has recognized the possibility of impeaching in a court of equity a compensation agreement entered into by mistake. Righi v Robert Gage Coal Co, 269 Mich 46; 256 NW 617 (1934), Hughson v Kalamazoo, 271 Mich 36; 260 NW 111 (1935), Baughman v Grand Trunk W R Co, 277 Mich 70; 268 NW 815 (1936). In Avery v Eddy Paper Corp, 295 Mich 277; 294 NW 679 (1940), for example, the Supreme Court affirmed a circuit court order setting aside a final settlement receipt where a doctor made misstatements (not necessarily fraudulent) to the claimant concerning the extent of his injury. It has been recognized in other jurisdictions that relief from a compensation settlement is available where shown to have been procured by or based upon a mutual mistake of a material fact. Maryland Casualty Co v McWilliams, 175 F2d 475 (CA 5, 1949), Hansen’s Case, 350 Mass 178; 213 NE2d 869 (1966), Morgan v Duncan, 361 Mo 683; 236 SW2d 281 (1951), Herrera v C & R Paving Co, 73 NM 237; 387 P2d 339 (1963), Clark v Gastonia Ice Cream Co, 261 NC 234; 134 SE2d 354 (1964). Little justification can be found for limiting the power of a court to set aside a redemption order to cases of fraud. The injustice such a rule can permit, on the other hand, is demonstrated in the case at bar. Although the plaintiff has alleged that the redemption agreement was based on completely erroneous diagnoses and that she is suffering from a much more serious disability then previously believed, she has had no opportunity to prove her allegations in any manner. To require proof of fraud in the procurement of the redemption agreement before any relief will be granted is improper. The argument is well-stated in 3 Larson, Workmen’s Compensation Law, § 81.52: "In view of the practical protective function of workmen’s compensation, the desirability of preserving a right to reopen for genuine mistake seems too self-evident for argument. In the nature of things, there are bound to be many occasions when even the most thorough and skillful diagnosis misses some hidden compensable condition. Should the claimant then be penalized because of an erroneous disposition, either by award or settlement, when the only fault lies in the imperfections of medical science?” We hold that a court exercising equity jurisdiction may set aside a workmen’s compensation redemption order where the claimant has a meritorious claim for greater compensation than he has received and where in entering into the redemption agreement the claimant relied upon false representations (even though made in good faith) concerning his medical condition made by the employer’s doctor. See 0Alvarez v Employer’s Fire Insurance Co, 531 SW2d 218 (Tex Civ App, 1976). The order of the trial court granting summary judgment for the defendant is reversed. This cause is remanded to the trial court for further proceedings. D. F. Walsh, J., concurred. Compare, Denton v Utley, 350 Mich 332; 86 NW2d 537 (1957): mistake on part of plaintiff as to extent of his injuries may justify setting aside release of tortfeasor. See Hall v Strom Construction Co, 368 Mich 253; 118 NW2d 281 (1962). But see, Lambert v Remington Rand, Inc, 334 Ill App 176; 78 NE2d 852 (1948), Griffin v Coal Operators Casualty Co, 84 So 2d 481 (La App, 1955).
[ -40, -32, -71, 41, 21, 2, 37, -41, 2, 27, -11, 71, 54, 0, 1, 11, -6, 28, -28, -7, -60, -52, -3, 38, -11, -25, 23, -23, -1, 66, -20, 19, 1, -48, -24, 1, 12, 38, 18, 12, -7, 41, -24, -5, -31, 0, 10, 18, 50, -13, 43, -8, -4, 8, 5, 44, 25, 14, -40, -38, 0, -19, 6, -43, 43, -14, 14, 24, 22, 37, -46, 10, 8, -2, -52, 26, 19, 62, -12, -34, 13, -39, -1, -5, -34, 55, 11, 20, 27, -22, -20, -30, 27, 23, -51, -3, -40, 13, -5, -5, -43, 0, 0, 9, -15, -26, -3, -33, 4, 53, -8, 22, -2, 1, -5, -29, 24, -2, -60, 54, 17, -30, -17, -23, -5, -3, 33, -17, 15, 11, 13, 7, -31, -34, -3, 0, -21, -4, 3, 12, -30, 33, -17, -5, 13, 7, 14, -33, -44, -56, 27, 26, 31, -7, 44, -30, 4, 18, 5, -19, 35, 10, 59, 61, 15, -25, 23, -4, 38, -33, 45, -16, 27, -42, 18, 18, 93, -41, -78, 38, -39, -14, 1, 7, -44, -21, -33, 21, 0, 31, 40, -24, -40, 32, 1, -46, 1, 16, 12, 8, -10, -77, -29, 9, 2, 36, 8, 30, 60, -10, 4, -6, 43, -55, -22, 20, 74, -23, -33, -57, -24, 15, 18, -15, -46, -17, -7, -13, 39, -39, -48, 8, 59, 13, 54, 12, -8, -21, 53, -4, 30, -15, -12, -5, -35, 18, -18, -21, -13, -29, -17, 6, -8, -2, -34, -38, 18, 38, -22, -29, -50, 45, -15, 25, 19, -24, -39, 20, -3, -42, -47, -8, 24, -17, -34, -65, -21, 4, 36, -43, -16, -22, 14, -30, -41, 18, -22, 24, -43, 12, 14, -45, -19, 1, 47, 39, 32, -10, -5, 29, -18, -47, 5, -5, 8, 11, -5, 14, -21, 11, 27, -82, 65, -42, 23, -58, 16, 47, 24, -32, 5, 81, 5, 10, 8, -63, -4, -12, -5, -36, 9, 35, -4, 57, 42, -26, 3, 67, -12, 1, 5, 20, -27, -25, -22, 25, 50, -43, 19, 37, 22, -23, 53, 7, -22, 9, 64, -36, -28, 29, 52, -30, -19, -27, 19, 2, 9, 2, 5, 36, 4, 22, 34, -34, -27, -50, 28, 38, -20, 27, -17, -9, 46, -12, 5, -31, -52, -54, -29, -5, -67, 11, 12, 62, 4, 11, -25, -12, -45, -6, 15, 8, 16, -15, 4, -56, 33, -54, -14, -23, -7, -6, 0, -26, 28, -1, 71, -38, -31, -12, 79, -10, -15, -49, 4, -5, 15, 28, 37, -6, -11, 29, 10, -31, -2, -28, -31, 9, 3, 25, -9, 2, -26, -18, -24, 1, 7, 15, 43, -2, 43, -21, 30, 32, -4, -7, -14, 25, -8, -59, 4, -39, -14, 16, 54, -18, 15, -2, 24, 31, 10, 6, 17, 25, 18, -30, -15, -37, -2, -51, 14, 14, -29, 15, -8, -20, 34, 29, -35, -21, 16, -4, -27, -28, -35, 32, -73, -9, -71, -31, -45, -62, 13, 52, 69, -9, -6, -69, 11, 39, -90, -26, 10, 30, 70, 5, 3, 7, -9, 23, -45, 19, -71, -10, -6, -88, -8, 0, -6, -18, 4, -82, 13, -65, -4, 34, -16, 11, -53, -54, -8, 27, -6, 30, 12, -53, 2, 41, -17, 32, -42, -17, 31, 12, 15, 2, 16, -23, 60, 15, 7, 25, 23, 26, 19, 36, 18, -16, 6, 52, -37, 42, -12, 41, 8, 17, -16, 43, -51, 8, -18, 8, 13, -24, -21, -36, 29, 35, 6, -38, -52, -5, -1, 23, 52, -3, -19, -19, 17, 23, -35, -24, -68, -6, -6, -15, 56, 20, 42, -39, -19, 28, -51, -56, -32, -61, -1, 48, 21, 86, -23, 14, 30, 1, -16, 16, -12, -13, -23, -48, 92, -11, -4, 5, 23, 18, 16, 57, -16, -29, -9, 8, 20, 23, -44, -12, -13, 32, -28, -18, 0, 59, 6, -21, -20, 18, -9, 65, -81, -15, -46, 18, 16, -3, 2, 6, -14, -24, -13, -27, -14, 25, 61, 0, 51, 4, -15, 41, -10, -36, -38, -3, 49, 0, -32, -50, -38, 17, 7, -10, -38, 29, 10, 43, 43, 3, 39, 10, 24, -20, -6, 31, -41, 45, 51, -6, 2, 51, 19, 3, -13, 16, -38, -22, 53, 63, 21, -4, -47, -49, -47, -41, -11, -18, 4, 22, 14, -10, 2, -62, 32, -15, -28, 30, -3, -29, -32, 27, -3, 30, 16, 47, -47, 64, -42, -33, -36, 36, 37, -31, -49, -21, -34, 35, -2, -24, -18, -55, -28, 18, 6, -38, 43, 7, 1, 21, -1, -30, 6, -15, -38, 46, 12, 0, -31, 17, 0, 18, -31, -13, -4, -24, 22, 13, -72, -76, 25, -30, 13, -6, -37, 7, -14, -13, 37, -18, -24, 2, -73, -43, -42, -1, -36, 28, 1, -32, 23, -7, 3, 7, 5, -22, 28, 38, 2, 18, 42, -9, -8, 13, 28, -8, -77, -28, 39, -42, -35, -41, 11, -14, -12, 17, 26, 14, 12, 20, 10, -34, 4, -39, 0, 14, -43, -10, 18, -52, -62, 36, -30, -38, 19, -101, 15, 33, -68, -2, 6, -43, -6, -12, 6, -31, -45, -21, -13, 52, -23, 31, 46, -3, 0, 33, -12, -13, 1, 69, -13, -33, 66, -11, -21, -27, -32, 26, 12, 15, 4, -16, -32, 43, 22, 27, 46, 27, -13, -45, -22, 29, 19, -14, 33, 46, 27, 50, -17, 18, 0, -48, -46, 7, -16, 8, -5, 0, 48, 33, 20, 34, -40, 28, -16, -21, 31, -27, -8, 29, 55, 35, -16, 37, 30, 17, 48, 13, 45, -2, -1, -74, -20, -3, 34, 25, 18, 12, -50, -53, 2, 20, -9, 34, 31, 5, 35, 6, -21, 10, -21, 88, -1, 10, -10, 12, -9, 45, 46, 27, 16, -33, -43, -21, 28, 8, -48, -29, 8, 6, -14, -31, -7, 17, 73, -35, -20, 26, -53, 7, 6, 22, 10, -23, 20, -39, 32, 54, 20, -51, -5, 19, 25, -19, -14, -29, -7, -7, 16, 19, 41, -2, 76, -7, 40, 36, 9, -14, -2, 67, -30, -25, 17, 8, 50, -11, 45, -2 ]
Danhof, C. J. Defendants were charged with first-degree murder, MCLA 750.316; MSA 28.548, and, after a lengthy jury trial, they were convicted of second-degree murder, MCLA 750.317; MSA 28.549. Each defendant was sentenced to a term of from 17-1/2 years to 30 years imprisonment, and now appeals by right. The slaying occurred at the home of Harriet Shimko. Ms. Shimko was romantically involved with both the victim, Daniel Reddic, and defendant Parker. Reddic was a black man; Ms. Shimko and defendants are white. On the evening of September 16, 1973, Mr. Reddic and Ms. Shimko had retired to the upstairs bedroom of Ms. Shimko’s Ann Arbor townhouse when defendants Parker and Mitchell arrived. Mitchell was armed with a gun. After Parker observed Reddic and Ms. Shimko together in her bedroom and went back downstairs, Reddic went into the children’s bedroom to call the police and to hide from defendants. Meanwhile, defendant Mitchell had come upstairs and determined that the stairway was "the only way out”. After allowing David Hayes and Mary Bielecki (Ms. Shimko’s live-in babysitter) to leave, defendant Parker returned upstairs and beat Ms. Shimko to force her to divulge where "that nigger” was. When Ms. Shimko finally revealed that Reddic was in the children’s bedroom, defendant Parker relayed that information to defendant Mitchell. Mitchell went and checked the children’s bedroom, then returned and informed Parker that Reddic was not there. Parker continued beating Ms. Shimko until she finally revealed that Reddic was in the closet in the children’s room. Parker said something to Mitchell, and moments later Ms. Shimko heard several shots. She later found Daniel Reddic at the bottom of the stairs, dead or dying from a wound caused by a bullet that entered his left chest just above the nipple, passed diagonally downward, ruptured his heart, and exited through his lower right flank, indicating that he was shot from above. The facts will be further stated as they relate to each of the several issues raised on appeal. I Defendants first contend that the trial court erred in setting aside their pleas of nolo conten dere to second-degree murder and permitting the prosecutor to proceed against them on the original charge of first-degree murder. They contend that under People v McMiller, 389 Mich 425; 208 NW2d 451 (1973), the court having once accepted their pleas of nolo contendere to the lesser charge, the prosecutor was foreclosed from thereafter proceeding against them on the original charge. It appears from the records of the plea withdrawal proceedings that defendants sought to have their pleas set aside prior to sentencing when they learned that their maximum sentences would be higher than they had anticipated when they tendered their pleas. Accordingly, the McMiller rule has no application to this case. People v Lewandowski, 394 Mich 529; 232 NW2d 173 (1975), People v Millard, 394 Mich 99; 228 NW2d 783 (1975), People v Moore, 74 Mich App 195; 253 NW2d 708 (1977), Moore v 9th District Judge, 69 Mich App 16, 19-20; 244 NW2d 346 (1976). People v McMiller, supra, at 430-431, disposes of defendants’ double jeopardy claims. There was no error. II Defendants next raise related claims. Defendant Parker contends that reversible prejudice resulted from the trial judge’s refusal to order separate trials because (1) use of defendant Mitchell’s out-of-court statements at trial prejudiced defendant Parker and (2) defendant Mitchell’s counsel was so inadequately prepared for trial that defendant Parker’s defense was prejudiced. Similarly, defendant Mitchell contends that he was prejudiced by denial of his counsel’s motion for adjournment, which he sought because he assertedly had not had time to prepare properly for trial. The second branch of defendant Parker’s arguments can be considered along with defendant Mitchell’s contention. At the hearing on the motion for adjournment, defense counsel stated that "any argument I may have on that motion is contained within the written motion”. The motion itself merely recites that Mitchell’s counsel "believes that an adjournment would be necessary to adequately prepare the defendant’s defense”. Although defense counsel did assert that "this is not a defense tactic to separate the trials in any way”, he declined to respond to the prosecutor’s arguments against the motion. In its ruling, the court noted that "every trial involves tactics”, but concluded that there was "no reason for adjournment”. We recognize that difficulties confronted defense counsel when he was appointed to replace defendant’s retained counsel, who was forced to withdraw because he had received a judicial appointment and was prohibited from practicing law. Nevertheless, defense counsel had over 30 days to prepare for trial, the court had indicated and demonstrated its willingness to cooperate with newly appointed defense counsel by making court files and transcripts available to him, and defense counsel agreed that he could avail himself of the work product of defendant’s former attorney. Requests for adjournments or continuances are addressed to the trial court’s discretion, and absent an abuse of this discretion the decision will not be overturned. People v Shuey, 63 Mich App 666, 671; 234 NW2d 754 (1975), People v Masonis, 58 Mich App 615, 619; 228 NW2d 489 (1975), People v Carter, 54 Mich App 69, 73; 220 NW2d 330 (1974). Adjournments or continuances are not to be granted except for good cause shown. MCLA 768.2; MSA 28.1025, GCR 1963, 503.1. In the present case defendant did not claim that he was being deprived of his right to counsel, as in People v Charles O Williams, 386 Mich 565, 573; 194 NW2d 337 (1972), nor that he was being deprived of compulsory process, as in People v Merritt, 396 Mich 67, 80-81; 238 NW2d 31 (1976). Indeed, defense counsel advanced no reasons or circumstances whatsoever in support of his bald assertion that an "adjournment would be necessary to adequately prepare the defendant’s defense”, nor does the record reveal any. To the contrary, the record reveals that Mitchell’s counsel proceeded to trial without renewing his motion or indicating in any way that he remained unprepared, and that he conducted a vigorous defense. Under these circumstances, and applying the standards set out in Williams, supra, we find no abuse of discretion, and consequently no error on which to predicate reversal. See People v Carter, supra, People v Calhoun, 17 Mich App 401, 402; 169 NW2d 505 (1969). A defendant does not have a "right” to a separate trial; rather, joinder rests within the discretion of the trial judge. People v Hurst, 396 Mich 1, 6; 238 NW2d 6 (1976), People v Foster, 51 Mich App 213, 215; 214 NW2d 723 (1974), MCLA 768.5; MSA 28.1028. A defendant predicating error upon having been tried jointly with another defendant must demonstrate that the court abused its discretion in denying a motion for separate trial. People v Moore, 306 Mich 29, 38; 10 NW2d 296 (1943), People v Rogers, 39 Mich App 157, 161; 197 NW2d 292 (1972). A motion for severance on the ground that a codefendant has made extrajudicial statements implicating the movant is likewise addressed to the sound discretion of the trial court. People v Campbell, 301 Mich 670, 673-674; 4 NW2d 51 (1942), 75 Am Jur 2d, Trial, § 17, p 133, Anno: Right to severance where codefendant has incriminated himself, 54 ALR2d 830, 833-834. In determining whether a separate trial ought to have been granted, several factors must be weighed. First, we note that in his testimony Mitchell retraced the history of the statements he had made concerning the origin of his wound, explaining that he was confused and weakened by loss of blood after having been shot. Thus his testimony was substantially in accord with his statements, a factor weighing against a finding of abuse of discretion. Anno: 54 ALR2d, supra, at 863, particularly since there was no objection to the use of the "snake bite” statements. People v Campbell, supra, at 674. Secondly, none of Mitchell’s statements incul pated defendant Parker; indeed, only one of the statements related directly to defendant Parker, and it tended to exculpate him. As defendant Parker concedes on appeal, Mitchell’s statements were "neither confession nor admission”, and after examining with care his brief on appeal, we note that defendant Parker advances not one reason to support his claim that he was prejudiced by their admission. We agree with him that "the only purpose these statements could serve would be impeachment of Mitchell’s testimony”. A third factor is the extent to which the co-defendants’ defenses were antagonistic. Anno: 54 ALR2d, supra, at 858. In the present case it is clear that they were not antagonistic. Parker did not take the stand, and there is no indication from either the course of examination by respective defense counsel, nor from their arguments, that Parker sought to defend on a theory different from Mitchell’s. An additional factor, the weight and sufficiency of the evidence, independent of the statements, also militates in this case against a finding of prejudice. Anno: 54 ALR2d, supra, at 855. Finally, the trial court gave the limiting instructions requested by defendant Parker, to the effect that statements made by a defendant during or after arrest are to be received with great caution, and that it was the duty of the jury "to consider the case of each defendant separately as though he were on trial here alone”, and that to convict defendants "it is necessary that evidence should be given against each one of them”. Such instructions further tend to negate the alleged prejudice to defendant Parker. People v Campbell, supra, at 674. Under these circumstances, we hold that defend ant Parker was not prejudiced by the admission of Mitchell’s statements and that therefore the trial court did not abuse its discretion in denying defendant Parker’s motion for severance. Ill A tape recording of a telephone call by the victim to the police on the night of the shooting was admitted in evidence over defense objection. Defendants contend that this was error because an insufficient foundation was laid for the tape’s admission. We disagree. People v Taylor, 18 Mich App 381, 383-384; 171 NW2d 219 (1969), aff'd, 386 Mich 204; 191 NW2d 310 (1971), sets forth the foundational requirements for the admission of sound recordings: "(1) a showing that the recording device was capable of taking testimony, (2) a showing that the operator of the device was competent, (3) establishment of the authenticity and correctness of the recording, (4) a showing that changes, additions, or deletions have not been made, (5) a showing of the manner of the preservation of the recording, (6) identification of the speakers, and (7) a showing that the testimony elicited was voluntarily made without any kind of inducement.” Although all seven foundational requirements must be met in any case to which all seven apply, it is conceded, and we agree, that the seventh requirement, "a showing that the testimony eli cited was voluntarily made without any inducement”, has no application to this case. That the foundational rules of Taylor are flexible enough to meet the facts and circumstances of a given case is demonstrated by People v Frison, 25 Mich App 146; 181 NW2d 75 (1970), in which this Court held that a tape containing background noise that made understanding the recording difficult was not so unintelligible that its admission was reversible error. The Court quoted with approval the rule that "unless the unintelligible portions of a tape recording are so substantial as to render the recording as a whole untrustworthy, the recording is admissible and the decision whether to admit it should be left to the sound discretion of the trial judge”. Id, 148. Frison disposes of defendants’ contention that certain inaudible portions of the tape rendered it inadmissible. We have audited the tape in question, and we agree with the trial judge that the assertedly unintelligible portions of the tape are not so substantial as to render the recording as a whole untrustworthy. The tape was properly admitted to show Reddic’s fearful state of mind immediately before he was killed, to rebut the defense contention that Reddic was the aggressor and that Mitchell shot him in self-defense. See People v Freeman, 32 Mich App 321, 323; 188 NW2d 200 (1971). Bearing in mind the limited purpose for which the recording was admitted, we observe that the fact that small portions of the tape are inaudible is entirely consistent with the behavior of a desperate man whispering a plea for help into a tele phone while hiding in a darkened bedroom. Ms. Shimko heard Reddic’s end of the conversation, and testified that she heard him state, over the telephone, that he needed help. That statement also appears on the tape. Moreover, our own review of the recording itself reveals that almost all parts of the tape were audible. We hold that the correctness of the recording was adequately demonstrated. It is sufficient to state that foundational requirements (3) through (6) were more than adequately established by the prosecution. Without over-elaboration, we note that Ms. Shimko corroborated the authenticity of the recording based on her own presence during the call. Communications Officer McAllister, who was in charge of the tape, testified in considerable detail as to the precautions taken to prevent changes, additions or deletions, which included having both defense counsel present when a copy of the tape was made for use at trial. Similarly, he fully described the procedures he followed in storing and retrieving the tape to establish the manner in which it was preserved. Finally, three witnesses familiar with the victim identified the voice on the tape as his, and the communications officer identified the voices of the officers who answered the victim’s call. With regard to requirements (1) and (2), Mc-Allister testified that he had encountered no trouble with the machine, that the multiple track recorder had been used to monitor automatically all incoming telephone calls and all police radio traffic, and that the machine was so used without incident in the ordinary course of departmental business. From the entire record made in laying the foundation for admission of this recording, and from the foregoing testimony, we hold that, in the absence of any reason to doubt that the recording machine was capable of recording testimony, there was a sufficient showing that this recording device was capable of taking testimony. Similarly, to the extent that foundation requirement (2) applies to the facts of the case at bar, we hold that Mc-Allister’s testimony that the machine under his control automatically recorded all incoming telephone calls by means of direct connections between the telephones and the multiple tracks of the machine, together with his demonstrated ability to explain how the machine functioned and his account of the procedure he followed in tending the machine, satisfied the requirement that there be a showing that the operator of the device was competent. Therefore admission of the tape was not error. IV Defendants next contend that they were entitled to a mistrial when it was brought to the attention of the trial judge on the fourth day of trial that two jurors had been exposed to an Ann Arbor News article containing an account of the trial. Defendants contend that the potential for prejudice resulting from juror exposure to this article, which recited that defendants had each pled "no contest to a charge of second degree (unpremeditated) murder”, but had been permitted to withdraw their pleas after learning that they might be sentenced to life imprisonment, was so great that a mistrial should have been granted whether or not the jurors remembered the contents of the article. After he determined that some members of the jury had been exposed to the article, the trial judge dismissed the jury. The trial judge and defense counsel then questioned individually each juror who had any knowledge about the article. The two jurors who had actually seen the article firmly denied recalling its contents, each having set the newspaper aside immediately upon realizing that the article referred to the case in which they were serving. Since neither juror could recall the contents of the article, they were unequivocally of the opinion that they could decide the case solely on the evidence presented in court. Under these circumstances, the cases relied upon by defendants do not require us to hold that the trial judge erred in refusing to declare a mistrial. In those cases the jurors, who had been exposed to incompetent information contained in newspaper accounts of trials in which they were serving, merely denied that they would be prejudiced thereby. See, e.g., Marshall v United States, 360 US 310; 79 S Ct 1171; 3 L Ed 2d 1250 (1959), Coppedge v United States, 106 US App DC 275; 272 F2d 504 (1959) (trial judge failed to examine individually the jurors who had been exposed to the article). In People v Moreland, 12 Mich App 483, 488; 163 NW2d 257 (1968), this Court held that defendant’s conviction must be reversed because of the fundamental injustice that resulted when the jury actually discussed and considered the defendant’s prior convictions, which were disclosed in a newspaper article they had seen, during the course of their deliberations. People v Trombley, 67 Mich App 88; 240 NW2d 279 (1976), in which the prosecutor put the fact of defendant’s prior guilty plea before the jury in the course of impeaching defendant, is also inapposite. In the present case, the only two jurors who were directly exposed to the article containing similar information denied any recollection whatsoever of its content. The instant case presents facts more akin to those in People v Hawthorne, 293 Mich 15, 21; 291 NW 205 (1940), in which an open newspaper containing an account of the case was found in the jury room and each juror denied that he had read that or any other article about the case. The Court held that there was no error under such circumstances and affirmed the conviction, which suggests that a showing of mere potential for prejudice is insufficient to warrant granting a mistrial. See People v McCrea, 303 Mich 213, 265; 6 NW2d 489 (1942). In People v Herbert Smith, 34 Mich App 205; 191 NW2d 392 (1971), aff'd, 396 Mich 362; 240 NW2d 245 (1976), three jurors had read a newspaper account that stated the defendant had not been permitted to plead guilty to a lesser charge, was then serving a sentence on another charge, and had engaged in bizarre behavior during the proceedings, but stated that they would not be influenced by the article. This Court held that the trial judge had adequately instructed the jury to disregard the contents of the newspaper article and decide the issues and render their verdict entirely on the basis of the evidence offered in court, and that therefore it was not error to refuse to declare a mistrial. The mere probability or supposition that jurors may have read prejudicial accounts of the case on which they are serving is not sufficient to support a finding that the trial court abused its discretion in refusing to grant a mistrial. People v Green, 323 Mich 128, 131-132; 35 NW2d 142 (1948), People v Havey, 11 Mich App 69, 75; 160 NW2d 629 (1968). Under the circumstances of this case, in which all jurors who were aware of the article’s publication disclaimed any knowledge or recollection of its contents, we hold that the trial judge did not abuse his discretion in refusing to declare a mistrial. V Defendants contend that several instances of alleged prosecutorial misconduct were so prejudicial as to deny them a fair trial and that they are therefore entitled to a new trial. As defendants’ contentions are without merit, we will discuss only briefly the principal instances of asserted error. First, the prosecutor’s reference to portions of Mitchell’s testimony, which was at odds with the testimony of prosecution witnesses in almost all respects, as a "lie” or a "fairy tale” did not constitute reversible error. When the proofs indicate that the accused has in fact misrepresented the truth, it is not error to call the conflict of the evidence to the jury’s attention. People v Wright, 58 Mich App 735, 745-747; 228 NW2d 807 (1975). "The fact that the prosecutor phrased his argument in words not as delicate as an Oxford don might have used does not require reversal”. People v Couch, 49 Mich App 69, 73; 211 NW2d 250 (1973). Secondly, the prosecutor’s questions concerning whether defendant Mitchell stole the gun used in the commission of the homicide from his employer were not improper. There was some testimony by the owner of the gun from which it could be inferred that Mitchell had been discharged from his employment shortly before the shooting occurred and that he was therefore not carrying the gun in the course of his employment, as he claimed. That being so, it would be relevant to the issue of premeditation to show that Mitchell procured the weapon for the purpose of confronting his victim with it: "Determination of the source of a weapon in a murder prosecution is relevant to the case and the fact that defendant might have procured the pistol by means which would create an inference of criminal conduct does not thereby render such evidence inadmissible.” People v Skidmore, 28 Mich App 677, 679; 185 NW2d 137 (1970). Accord, People v Wood, 44 Mich App 99, 101-102; 205 NW2d 66 (1972). Thirdly, defendants contend that the prosecutor improperly cross-examined a character witness for defendant Mitchell. It is true that the credibility of a character witness whose testimony is restricted to the defendant’s reputation for truth and veracity may not be tested on cross-examination as to any other subject. People v McClow, 40 Mich App 185, 195; 198 NW2d 707 (1972). Thus it was improper for the prosecutor to ask the witness whether defendant Mitchell had a reputation for carrying a weapon. The question was not completed, however, and was withdrawn after prompt defense objection. Moreover, Mitchell himself had previously testified that he frequently carried the gun home with him after work; thus Mitchell’s own testimony supplied a factual basis for the question, unlike McClow, supra, at 196, and also negated the possibility that any prejudice resulted from the prosecutor’s uncompleted question. Also, again unlike McClow, the question posed in this case did not impute to Mitchell prior criminal acts similar to that with which he was charged. Under these circumstances, the question was not grounds for reversal. McClow, supra, at 195. Defendants’ remaining assertions of prosecutorial misconduct do not warrant extended discussion. It is sufficient to observe that although the prosecutor’s brief questioning of defendant Mitchell’s former employer concerning prior occasions on which Mitchell had shot the gun was irrelevant, since Mitchell did not claim that he discharged the gun accidentally, any error was undoubtedly harmless in light of the overwhelming testimony and evidence establishing that Mitchell was the aggressor. The remaining claims of inflammatory argument and questioning may be disposed of by observing that the prosecutor’s questions and remarks were closely related to supporting evidence, and therefore did not constitute error. People v Page, 63 Mich App 177, 179-180; 234 NW2d 440 (1975), People v Clark, 57 Mich App 339, 343; 225 NW2d 758 (1975), see People v Davis, 57 Mich App 505, 511-513; 226 NW2d 540 (1975). Defendants’ remaining assignments of prosecutorial misconduct are too frivolous to merit discussion. VI Lastly, defendants contend that the trial judge’s instructions on aiding and abetting and the possible verdicts were so misleading as to be reversibly erroneous. We disagree. Defendants failed to object to the instructions of which they now complain; therefore there can be no reversal in the absence of manifest injustice, People v Fields, 64 Mich App 166, 171; 235 NW2d 95 (1975), People v Hooper, 50 Mich App 186, 192; 212 NW2d 786 (1973), or a failure to instruct as to all the elements of the crime. People v Miller, 35 Mich App 627; 192 NW2d 517 (1971). Neither basis for reversal is present here. On aiding and abetting, the trial judge instructed: "[A]ll parties who are concerned in the commission of the felony whether they directly commit the act constituting a felony or aid and abet in its commission are held to be equally responsible, so that whether a party commits by himself the entire act which constitutes a felony, or if he is concerned with another in its commission, if he aids another in its commission, if he assists another in its commission by word or deed, either by words of encouragement, assistance, or support, or by actions giving encouragement, assistance, or support, either party under these circumstances would in the eyes of the law be held to be equally responsible, that is so far as their personal guilt or innocence is concerned. Mere presence even with knowledge that an oifense is about to be committed or is being committed is not enough to make a person an aider and abettor or principal, nor is mere mental approval sufficient, nor passive acquiescence or consent. One cannot be held criminally responsible for another’s wrong in which he has taken no part.” The trial judge also instructed that the jury was to consider the case of each defendant separately, that either or both defendants could be convicted or acquitted, but that "under no circumstances may you find Joseph Parker guilty of a higher offense than Philman Mitchell if you do find him guilty of any offense”. Defendant Parker was tried as a principal, on an aiding and abetting theory, and his attorney requested the instruction last quoted. Defendant Parker’s contention, that the trial judge’s instructions were erroneous because they permitted the jury to find Parker guilty on an aiding and abetting theory before considering the principal’s guilt, is disposed of by the holding in People v Burgess, 67 Mich App 214, 217; 240 NW2d 485 (1976): "The trial court twice instructed the jury that a defendant could be held criminally responsible for a felony if, by his actions, he aided or abetted another in the felony’s commission. Thus, the jury was informed that another individual’s direct commission of the felony was a condition precedent to finding the aider and abetter [sic] guilty. Consequently, before the jury could conclude that the defendant was guilty as an aider and abetter [sic] of either the charged offense or one of the lesser included offenses, it was necessary for them to determine that the principal had, in fact, directly committed that felony.” Furthermore, since a person may be prosecuted for aiding and abetting without regard to the conviction or acquittal of the principal, it follows that the conviction of the principal is not necessary to convict an accessory. People v Mann, 395 Mich 472, 478; 236 NW2d 509 (1975). "What must be proven, however, is that the crime was committed by someone, and that the defendant either committed or aided and abetted the commission of that crime.” Id. There was no error. Defendant Mitchell claims that the trial judge’s instruction that the jury must consider separately the question of each defendant’s guilt conflicted with his instruction that defendant Parker could be convicted, if at all, of no higher offense than defendant Mitchell. Although there is authority to suggest that, under certain circumstances, an aider and abettor may be convicted of a higher offense than the principal, see, e.g., People v Chamblis, 395 Mich 408, 421; 236 NW2d 473 (1975), People v Folkes, 71 Mich App 95, 97-99; 246 NW2d 403 (1976), 21 Am Jur 2d, Criminal Law, § 123, p 199, 40 Am Jur 2d, Homicide, § 33, p 325, 22 CJS, Criminal Law, § 106, p 297, there is no need for abstract discussion of that question here. In this case, defendant Mitchell admitted the shooting, but claimed self-defense. Accordingly it would have been error for the trial judge to have denied defendant Parker’s request for an instruction to the effect that he could not be convicted of a higher crime than Mitchell. See People v Pearce, 369 Mich 692; 120 NW2d 838 (1963), People v Onesto, 203 Mich 490, 496; 170 NW 38 (1918). Moreover, even assuming arguendo that once the jury found against Mitchell on his claim of self-defense they might have been disposed to convict defendant Parker of a higher offense than Mitchell, the only possible consequence of the trial court’s instruction would have been to benefit Parker. We therefore hold that under the circumstances of this case the instruction was proper and that no injustice to either defendant is manifest. The convictions are affirmed. Defendant Mitchell’s attorney clearly moved on the record to set aside Mitchell’s plea. Defendant Parker’s attorney did not expressly so move, but it is clear from the record that Defendant Parker’s plea was set aside with his consent, and without objection, pursuant to an extended conference in chambers referred to on the record. The setting aside of Parker’s plea therefore conformed to the requirements of GCR 1963, 785.7(6)(b)(ii). At the May 15, 1975 hearing, at which defense counsel made his oral motion for adjournment, he did state that in the week since his appointment he had been unable to interview his client or to obtain a copy of the preliminary examination transcript. The court observed that defendant was incarcerated, and therefore available, and promptly provided defense counsel a copy of the preliminary examination transcript by order dated May 22, 1975. Defendant Parker complains of the use of three statements by Mitchell: Mitchell’s statement to the effect that the gunshot wound to the buttock that he received during the shooting was a snake bite; his later statement that he had actually been wounded when he was shot while running away; and his statement that he and Parker left the apartment where the shooting occurred immediately after they arrived when a black man came running down the stairs, and that he found the .38-caliber revolver used in the slaying lying on the ground outside the apartment as they were leaving. The trial court held an evidentiary hearing and correctly ruled that Mitchell’s statement concerning his presence at the apartment was voluntary and hence admissible. Daniel Reddic telephoned the police to request emergency assistance because there was a "man outside with a gun”. Reddic was shot within a few minutes after he made the telephone call. These foundational requirements were adopted, without modification, from Anno: Admissibility of sound recordings in evidence, 58 ALR2d 1024, 1027-1028. Application and satisfaction of such a requirement would be appropriate, however, before admitting a recording of a defendant’s confession or admission, the extrajudicial statement of a witness, or any other "testimony”. Daniel Reddic’s telephone call was not used as "testimony”, as such; the tape was admitted only to show the state of mind of the victim immediately before the shooting. Strictly speaking, of course, the machine had no operator, since it functioned automatically. McAllister merely tended the machine by changing the tape reel every 24 hours and checking its functioning. Although it always would be proper to require a showing that the operator of a manual recording device was competent to operate it, the showing in this case that the machine had functioned automatically without incident, and that it was regularly tended by one knowledgeable about the machine’s functioning, satisfies the competence requirement, in the absence of any reason to doubt that the machine was functioning properly. In adapting the foundational requirements of People v Taylor, 18 Mich App 381; 171 NW2d 219 (1969), to the facts of each case, the primary considerations should be to ensure the accuracy, authenticity, and integrity of the recording itself, and, in appropriate cases, the voluntariness of the testimony recorded. Three other jurors had been informed by family members of the existence of the article, but had scrupulously avoided learning its contents. Since each juror questioned indicated that he or she had no knowledge of the contents of the article, such an instruction was unnecessary in this case, but the trial judge did issue a blanket order to abstain from reading or listening to any accounts of the case. Defendant Parker also cursorily advances this argument; our discussion of Mitchell’s claim disposes of Parker’s as well.
[ 27, -17, -55, 0, -53, -82, -92, 20, -50, 2, -28, -26, -6, 1, 26, 10, -46, -2, -44, -29, 20, -31, -2, 47, -23, -11, 37, -31, -35, -6, 44, 0, 33, -92, 54, 7, 44, -13, 0, 47, 25, -58, 26, -23, -8, 11, 28, 18, 3, -26, 32, -23, 46, 38, -17, 15, -2, 27, -4, 33, -6, 23, -57, -54, -27, -48, 61, 32, -22, -2, 49, -36, -36, 12, -29, 20, -32, 6, 12, 29, -17, 11, 19, 0, -13, -56, -13, -64, -42, 64, 33, 51, -3, 14, 10, 21, -14, -3, -5, -12, -20, -14, -17, -22, 3, 38, 38, -75, -6, 43, -3, 61, 58, 64, 0, -18, 2, 28, -43, 12, -9, 12, 64, -22, 33, -26, -36, 1, 51, -49, -13, 21, 0, 9, -21, 19, 23, -26, 62, -24, -13, 9, 22, 46, 10, 0, 3, 28, -12, -10, -61, -5, 14, 24, 34, 2, 2, -24, -41, 25, 18, -94, -17, -17, -18, -36, -5, -33, 19, 49, 3, -4, 15, -5, 60, 37, 3, 33, 1, 6, -1, 36, 0, 1, 23, -22, 11, -43, -6, 22, 26, -7, -31, -51, 51, 17, -43, -3, 33, -3, 18, -41, 39, 5, 30, -26, 39, 33, 34, -24, 34, -19, -6, -32, 10, -11, -78, -18, -7, 8, -24, -68, -3, -21, -38, 10, 32, -16, -24, -44, 70, -25, 6, -7, 9, -24, -47, 15, 26, -26, 17, -40, -1, 21, 63, 60, -6, 3, -56, 11, 7, 9, -19, 32, -29, 28, 0, -16, -26, 5, -61, -13, -43, -23, 15, 50, -27, -32, -59, -32, 18, -5, 55, -17, -37, -20, 5, 35, 25, -18, 73, 0, 5, -28, 37, -11, -43, 11, -2, -3, 52, -29, -22, -42, 85, -45, 25, -63, 32, 5, -4, 6, -9, -21, 10, 2, 50, -3, 31, 24, 15, -19, 27, 25, 37, 1, -22, -29, 36, 15, -6, -34, -40, -65, -22, -55, -4, -11, -5, -10, -13, 56, 4, 6, 14, 11, -41, 19, 2, 28, 29, -25, -20, 0, 4, -4, 2, 10, -69, -29, 54, -25, -11, -44, -41, -57, -44, 14, 24, -4, 28, -32, -89, -9, -36, -51, 50, -7, 25, 53, 42, -20, -39, 39, 18, 34, 26, 12, 50, 56, 22, 40, 47, 2, 16, 51, 12, -54, 45, 34, -50, -11, 58, -26, 62, -45, -30, 32, 13, -64, -19, -11, 47, 2, -7, 19, -16, 55, -12, -15, -31, -31, 8, 1, -12, -7, -30, -93, -15, -40, 13, 6, 25, -22, 24, 0, 0, -36, -6, -19, 16, 17, -28, 2, -3, -27, -61, 59, 10, -31, -15, -32, 18, 5, 14, 5, -31, 1, 10, -37, -43, -11, 3, -19, 4, 16, -62, -32, 5, 60, 10, -38, 16, -23, 15, -21, -24, -3, -18, -29, -19, -42, -25, 80, 42, -25, 19, 16, 0, -18, 17, 4, 6, 36, -24, -27, 4, -86, 13, 4, 2, -14, 32, 50, 7, 74, 41, -11, -14, -20, -24, -44, -21, 2, 44, -46, 58, -7, 13, -40, 12, -29, -93, -17, -63, -29, 57, -32, 4, 11, -29, 0, 55, 15, -39, -9, 7, -44, -95, 36, 52, -1, -14, -4, 61, -10, -37, -17, 40, -14, 15, -8, 39, 39, -14, -46, 20, 19, -10, 17, 14, -34, -56, -64, 25, -1, -17, 25, -18, -65, -64, 8, 46, 17, 36, -35, -13, -17, 33, -18, -21, 55, -10, 15, -27, -3, 0, 52, -16, 77, 32, 31, -6, 69, -46, -37, 1, 24, 15, 37, 3, -10, 42, -35, -10, -3, -36, -37, 19, -51, 35, -13, 26, -36, 58, -2, -41, 30, 13, -22, 37, -8, -31, -18, -23, 35, 42, 18, -48, -33, 5, -24, -22, 19, -7, 3, -4, -37, 5, -31, -30, 11, 24, 48, 41, -46, 53, -17, -2, 41, -52, 4, -22, 19, 22, 47, -26, -22, -6, -5, -35, -19, 19, -22, 4, -44, -25, 20, -2, 5, -11, 43, -52, -10, -25, 11, 41, -51, 6, -16, -20, 80, 9, -11, -43, 3, -59, -16, 2, -13, 8, -19, -7, -38, 33, 46, 43, -38, -37, 14, -51, -1, 49, 12, 34, 6, 55, 13, 0, 12, 12, 28, -58, -20, -22, -20, 35, -42, -12, -20, -47, 68, 7, -1, -61, 12, -35, -25, 7, 63, -58, -8, -3, 20, 44, -14, 21, 13, 79, 19, 60, -4, -21, 15, 26, 25, -88, 37, 34, 24, -21, -3, -67, -41, 23, -18, -20, -9, 7, 20, 47, 42, 24, -11, -28, -28, 55, -5, -63, 12, 13, -18, 40, -56, -17, 15, 50, -39, 63, -34, -69, -25, -60, 1, -44, -3, -31, 56, 32, -31, 1, 49, -37, 7, 46, 59, 43, 2, 38, 19, -48, 2, -2, 9, -4, 54, 2, 42, 26, 1, 95, 11, 8, 9, -3, 14, -13, -36, -48, 43, 39, 55, 6, 8, -30, 60, 22, -52, 10, 29, 35, -5, 16, -2, 48, -1, -22, -21, -17, -28, -8, 20, 38, 32, -42, 6, -8, 37, -1, 55, 16, 15, -9, 29, 48, 14, 39, -1, 46, -25, 43, -49, 0, -50, -28, 13, -34, 17, -23, 47, -24, 14, -17, -42, -24, 61, 37, 14, 20, 20, -9, -40, 52, 30, -51, 31, -18, 15, -24, -19, -6, -20, 12, 5, 16, 38, 25, -2, 17, -62, -7, 69, 28, -53, -40, 8, -11, 3, 23, -8, 11, 19, 10, 0, 19, -48, -4, -5, -34, 17, 25, -7, 33, 57, -31, -5, -43, 42, 16, -42, -34, -11, 49, 16, -13, -49, 39, -47, -61, 14, 16, -46, -8, -19, 15, -16, 53, -31, -15, 30, -7, -6, -11, 13, 10, 71, 14, -77, -19, -2, 18, 3, -47, 45, -2, 51, -14, 18, -9, -14, 8, 11, 31, 51, 36, -18, -32, 34, 9, -3, -11, -1, -44, -41, -11, -58, -26, 12, -10, -67, -5, -21, 3, 18, 16, -5, 19, 18, -39, -12, -30, -14, -46, 20, 1, 10, -5, -4, -24, 6, -6, 34, 42, 62, 31, 12, 6, 6, -35, -20, -8, -1, 17, -11, 5, 13, -14, 9, -14, 35, -24, 12, 12, 14 ]
Per Curiam. Relator was appointed as street commissioner of West Bay City in April, 1891, for a period of two years. The fiscal year commences on the second Monday in April., The charter provides that the council shall annually determine the salary to be paid to the several city officers, and that the compensation so fixed shall not be increased or diminished, after having been so determined and fixed, until the next annual determination. In April, 1891, the council fixed the compensation of the street commissioner at three dollars per day. In April, 1892, a resolution was offered in the council fixing the compensation for the year 1892 at three dollars per day. The council was composed of twelve members. The mayor is also a member ex officio, but without the right to vote except in case of a tie. When the resolution was acted upon, but eleven aldermen were present. Six voted in favor of the resolution, and five against it. The mayor, presiding, declared the resolution lost. Subsequently, on May 2, 1892, a resolution was offered fixing the rate at two dollars per day. But eleven aldermen were present. Six voted in favor of the resolution, and five against. The mayor, presiding, declared the resolution carried. The charter provides that no resolution appropriating money shall be passed or adopted except by a majority of all the aldermen elect. It is contended that the resolution by which the salary was attempted to be fixed was one appropriating money, and, failing.to receive the votes of a majority of the aldermen elect, it was a nullity, and that tbe street commissioner is entitled to receive tbe compensation fixed in April, 1891. The charter provides that it shall be the duty of the council, on the first Monday in May of each year, to determine, by resolution to be termed the “annual appropriation bill,” the amount necessary to be raised by tax for general purposes, for contingent purposes, the erection ■of public buildings or parks, etc. In May, 1892, such a resolution was adopted by the council by the requisite majority of all the aldermen elect, in which the sum of $460 was designated as the amount necessary to be raised for the purpose, of paying the compensation of the street ■commissioner. It is contended by the respondent that the resolution fixing the salary was not a resolution appropriating money, within the meaning of the charter provision referred to, and that the provision requiring a majority vote of all the aldermen elect refers to the resolution termed the “annual appropriation bill.” This is a very narrow construction ■of this charter provision. It certainly was not the intention that a majority vote of all the aldermen elect should be required to get money into the treasury, and but a majority vote of a quorum to get the same money out of the treasury, or to fix the liability of the city; or that the vote upon the resolution determining the amount to be raised by taxation for general purposes should render a like vote unnecessary when the council should come to the appropriation of the sums so raised to the specific purposes for which they were raised. In other words, it cannot be said that a contract to build a public building, and to fix the city’s liability thereunder, although the moneys were to be paid out of the sums so raised, would not require a majority vote of all the aldermen elect. It will not be contended that the mere determination of the sum neces sary “for contingent purposes” affords the protection intended to be secured by this provision, and excepts that sum from the application of this inhibitory provision. Strictly speaking, a resolution fixing a salary cannot be termed an act appropriating money, but it is, nevertheless, an act making an appropriation of the compensation so-fixed obligatory. It follows that the resolution acted upon May 2, 1892, having failed to receive the necessary vote under the charter, must be treated as a nullity. It does not follow, however, that relator is entitled, without' any action of the council, to receive the per diem fixed in April, 1891. The charter makes it the duty of the council to fix the compensation annually. It was in the power of the relator, by proper proceedings, to compel action to that end by the council. There is a clear distinction between the present case and that class of cases where the salary is fixed for an indefinite period. In August, 1892, relator presented a bill to the council for 91 days’ services, at three dollars per day. On the-15th day of August, 1892, the council, by a vote of seven to five, ordered the payment of the bill as presented. The mayor and recorder, however, relying upon the resolution acted upon in April, and treating that as valid, refused to draw the order upon the treasurer. Subsequently the relator presented bills at the rate of three dollars per day, but the council allowed such bills at two dollars per day. None of these allowances can be treated as fixing the annual compensation under, the charter. It is the duty of the common council to proceed at once to the determination of relator’s compensation for the year 1892, as well for that portion of the term already expired as for the unexpired portion, and,- when such determination shall have been made, to pay relator accordingly, deducting any sums which have been received by relator for such term. A mandamus will issue in accordance with these views, with costs to relator.
[ 51, -8, -27, -5, 12, -5, 25, 1, 7, 27, -13, -55, 41, 32, 60, 12, -7, -21, -8, 3, -14, -38, -16, -11, -25, 65, 9, -31, -27, -5, 45, -42, -21, 24, 19, -13, -50, 21, 69, -8, 60, 4, -33, -27, 0, 9, 12, -10, 0, -61, -61, 28, -14, 81, 29, 27, 8, -29, -24, 2, -35, -22, -31, 31, 39, 16, 2, 32, 82, 22, 9, -16, -4, -39, 29, 22, -10, -55, 1, 37, -49, 16, -28, 7, -6, -10, -16, -22, 25, -10, -16, -1, 45, 62, -14, 26, -3, -32, 8, 2, 13, -12, 8, 33, -1, -45, -1, -33, 46, 2, 4, 52, 25, -4, -12, 10, 0, -21, 21, -22, 1, -12, 1, -6, -70, 13, -39, 1, -54, -21, -47, -3, 21, -10, 61, 34, -9, -18, 37, 74, 2, 27, -18, -38, -39, 0, -58, 27, -4, -28, 33, 20, 86, 3, -19, -48, 5, -30, 69, -26, -13, 10, -16, -22, -46, 13, -30, 3, -13, 21, 55, -6, -19, 3, 30, -25, -17, 2, 3, -10, -7, 32, 6, -4, 37, -15, 0, -36, 24, -48, 32, -41, -33, -37, 27, -20, 13, 11, -7, 13, -21, -3, -39, 35, -16, -5, -3, 1, -7, 8, -3, -57, -35, 0, 41, 24, -3, -19, 33, -24, 18, -7, 22, 47, -58, -39, 3, 8, 23, 24, 17, 13, -26, -50, 27, 2, -33, 90, 1, 3, -10, 37, -6, -4, 14, 8, 7, -38, -16, 27, 12, 0, 8, 31, -64, 16, -36, 28, 16, -21, 0, -12, 49, 26, -13, -51, -5, 52, 54, -8, -19, 31, 27, 10, -26, -13, -13, -57, -20, 45, -64, -18, -9, 28, -12, 31, -24, -27, 17, 0, 17, 1, 41, 20, 50, 35, 7, 66, 27, -69, -26, -2, 19, 42, 21, 8, -21, 2, 48, -15, 29, -27, 1, 75, -6, -6, -15, 52, 32, -40, 23, 33, 8, -16, -62, -15, 54, 28, -32, -66, 1, -43, -26, 44, 75, 30, -2, 48, -26, -49, 36, -9, 51, -3, -14, 18, -36, -21, 1, 22, -39, -1, -32, 18, -3, -8, 1, 5, 5, -1, 48, 26, -12, -56, -16, -4, -22, 3, -18, 22, 10, 10, -45, 34, 13, -34, 33, 51, -52, 58, 19, 32, 31, -49, 57, -29, 29, 7, -22, -79, 6, 34, -36, 12, 51, 79, -9, 1, -19, 20, 5, 12, 15, 35, -14, -4, 13, 17, -5, 43, 33, 17, 36, -52, 10, -34, -8, -53, 41, -14, 15, 6, 13, 22, 19, 3, -6, 9, 20, -16, -48, -29, 38, -79, -20, -14, -54, -21, -55, -76, -1, 38, 46, 48, -11, -23, -14, -3, -34, 24, 39, 8, -37, 71, 6, 13, 5, 52, 82, -1, -18, -27, -15, 21, -14, 1, -20, 89, 18, 25, -40, 0, 26, -2, -44, -14, -22, -18, 0, 9, -40, -42, 1, 11, -43, -9, 32, 8, -51, -11, 35, -5, -18, 20, 52, 0, -3, 6, 19, -12, 14, 18, -46, -43, -24, -74, -23, 12, 18, -52, -43, -17, -2, 27, 25, 17, -14, -45, 30, 10, -2, -11, -51, -49, 15, 23, -9, 55, -15, 6, -55, -17, -45, 9, -17, 3, 8, 55, 8, 1, 9, 21, -6, 10, 14, 37, -10, 58, 17, 10, -29, 13, -21, -16, -33, -22, 26, -20, 6, 62, -18, 41, -1, 5, -46, 40, -4, -22, 31, 18, 27, -41, -25, 28, -12, -5, -7, -26, 28, 39, 9, 16, -37, -9, 32, -13, 26, -10, -8, 0, -26, 70, -24, 55, -5, 40, 32, 50, 7, -45, 36, 37, -59, -19, -44, -33, 2, -22, 60, -15, -28, 1, 14, 48, 9, 62, -32, 18, 57, -33, -34, 38, 17, -36, -36, -47, 37, -33, -29, 35, -5, -47, -30, -6, 1, -24, 5, 12, 59, -56, -15, 4, -5, -11, -30, 69, -26, 86, -25, 0, -23, 13, 7, -25, 23, 5, 6, 32, 4, 33, 22, 5, 39, -16, 0, -16, 32, -28, 4, -26, -4, -19, 56, -24, 22, -60, -25, 33, -51, 20, 5, 0, -42, -25, -1, 5, -26, 3, 14, 29, 16, -73, 9, 3, 60, 50, 28, -56, 7, 8, -4, -48, -12, -5, -41, -10, -8, 18, -25, -56, 18, -69, -21, 1, 13, -32, 0, 11, 9, -2, 20, 19, -21, 23, 13, 25, -26, -62, -41, 11, -49, 33, 14, -84, -20, -18, -5, 20, 44, -48, -10, 33, -20, -32, -36, 7, -26, 9, -66, 58, -73, -40, -28, -21, 12, 34, -79, 42, -1, 50, -24, -20, 26, 69, -14, 6, 23, 53, 39, -16, 21, 0, -3, -36, 7, -60, 0, -3, 7, -7, 19, 2, 22, 6, -36, -66, 2, -18, -50, 14, -5, -45, 15, -3, -53, -2, -56, -32, 49, -14, -62, 19, -38, -20, -21, 36, -9, -1, -47, -9, -59, -42, -25, 37, 5, -59, -1, 16, -16, -10, 1, -9, 33, -4, 22, 3, 53, 35, -22, 38, 63, 31, -65, 24, -25, 0, -28, 8, -7, 0, -9, 0, -15, -5, -50, -18, -69, 52, -51, -12, -39, 42, 11, 18, 1, 25, 35, -26, 18, 3, -20, 40, 37, -30, -16, 3, -35, 2, 30, -11, 33, -26, -7, -18, 7, 18, 14, 7, -19, -25, -19, 22, 27, -27, 24, 44, -28, -16, 7, 67, 19, -25, 7, -9, -13, -47, -27, -9, -44, 25, -20, 23, 10, -27, -52, -12, -2, -23, 69, 29, 19, -20, -8, -4, -23, -67, -22, 2, -23, 67, 13, 36, -51, 0, -7, -43, -5, 0, 5, 17, 8, 0, 11, 72, 54, 20, 11, 21, -26, -43, -45, -30, -2, 18, 11, -13, -10, 26, 27, -6, -53, 17, 72, 28, -3, -25, -9, 26, -36, 8, -4, 53, 36, 12, 29, 2, 18, -49, -7, -11, 16, 4, -16, 44, 9, 3, -25, -65, -24, -6, 54, 16, 60, 32, -39, 9, 20, -2, -12, -2, 23, -33, -4, -10, -8, -69, -17, 2, 35, -49, 1, 23, -58, 5, -45, -68, 9, -6, 35, -5, 0, 1, 31, 13, -10, 54, 32, 26, -21, -42, 32, -50, -52, 2 ]
McGrath, C. J. Plaintiff's intestate, while driving upon Mack street, in Detroit, was thrown from his wagon, March 15, 1890, and killed. Mack street is unpaved, the roadbed is narrow, and the Detroit City Railway had laid its track in the center of the street during the previous summer, at which time the grade of the highway had been conformed to the grade of the railway track. It was but about eight or ten feet from the track to the ditch on either- side of the highway. The highway outside of the track was in a very bad condition, due to an open winter, and to the fact that the travel when upon the roadway was confined to narrow limits. To avoid that portion of the roadway outside of the track, the track bed was driven upon, and the wagon wheels would frequently drop outside of the rails, causing a succession of ruts just outside of the rails, and driving the earth away from the stringers upon which the rails were laid, so that in some places the track was several inches higher than the street grade. Plaintiff's intestate 'was picked up from the roadway, beside his wagon, in an unconscious condition, and died within a few moments. His wagon was used for carrying furniture, and the driver's seat was quite high. Deceased had evidently been driving along on the street-car track, and one of the front wheels had left the track, and dropped into a rut, which was from six to twelve inches deep. The horse had evidently stopped as his driver fell, as the wheel was still in the rut when deceased was picked up. The accident occurred in the day-time, when the condition of the street and of the track, and the liability of the wagon wheels to leave the track and drop into one of these ruts, were apparent. While the street-car track occupied the street, its primary purpose was not travel by the general public, but use by the street-railway company, and a person driving upon it must be deemed to have assumed the ordinary risks attending such use. The evidence clearly shows that the danger was an ordinary one incident to the use of the track for driving purposes, and one that was open to observation. Under the circumstances, the plaintiffs intestate must be deemed to have himself taken the chances, and plaintiff cannot recover. It is unnecessary, therefore, to consider the other questions raised. The judgment is reversed, and no new trial ordered, with costs of both courts to appellant. Long, Grant, and Durand, JJ., concurred with McGrath, 0. J.
[ -54, 60, 47, -58, -8, 0, 21, 0, 11, 20, -22, -5, 17, 35, 0, 51, 1, 0, -43, 6, -42, -46, -59, -41, -26, 37, 21, -57, -30, 8, 25, -28, -28, 14, 25, 25, -21, 1, 48, 27, 12, 9, -47, 27, 42, 5, 21, -10, -4, -76, 0, -2, -5, -7, 20, 13, 3, 28, -58, 7, 10, -42, 15, 8, 24, 49, -8, 0, -59, 3, -27, 25, -11, 31, -33, -12, 1, 5, -9, 2, -11, 17, 37, 10, -10, 13, -22, -53, -74, -26, -12, -6, 7, 39, -18, 9, -1, -5, -28, -25, -9, 38, 11, 7, -9, -34, -34, -31, -31, -12, -2, 37, 12, -12, 0, 1, 5, -18, 48, 5, 4, -73, -7, -2, -55, -37, -30, 58, 10, -3, 40, -12, 34, 6, 42, 9, -11, -19, 15, 32, 32, 51, -6, -10, -25, 37, -10, -25, 4, -48, -24, 49, 39, -62, 18, -35, -12, 20, 62, 40, 30, 39, 66, 0, -43, 24, -51, -39, 11, 11, 17, -24, 37, -48, 49, 20, 1, 32, -63, -37, -15, 23, 57, -38, -59, -49, -10, 0, -44, 43, 29, -35, 3, -8, -37, 17, 4, -30, 15, 15, 21, -17, -58, -8, -20, 23, -9, 6, 26, -16, -2, -44, -24, -4, 5, -8, -2, -67, -20, -47, 38, 24, 55, 13, 10, -6, -64, 1, 13, 33, 40, 30, 6, -9, -27, -1, -12, -33, -35, -23, 77, 47, -13, -49, 22, -8, -11, 3, 7, 49, 13, -73, -24, -16, -6, 34, 30, 21, 2, -19, 11, 91, 1, 68, 67, 17, -43, -15, -13, -34, -22, -12, 58, -25, -34, -46, 41, 4, -3, 21, 32, 2, -15, -34, -2, 32, -52, 15, -23, 27, 14, -44, 1, 13, -25, 12, 76, 16, -6, -14, 39, 44, -30, 31, 44, 19, -20, 2, 21, -29, -16, -22, 8, -9, 19, 49, 42, -7, 73, 7, -37, -1, -41, -12, 14, 27, 2, -9, -9, 10, 35, 14, 44, 33, -5, -51, 18, 30, -44, -4, 16, 3, 12, -17, -12, -15, 33, -35, 21, 5, -27, -26, 32, -68, -15, 7, 46, -34, 13, -6, 25, -25, 9, 38, -3, -103, -55, -3, -16, 14, 25, 14, -7, 38, 47, -66, 27, 24, -23, 25, 18, -26, 27, -22, 25, -14, -41, -54, -23, 45, -19, 30, 52, 18, 51, -10, -9, 46, -48, -19, -23, 35, 9, -36, 0, -31, 42, -2, -4, -17, -54, -5, 73, -12, 26, 20, 8, -14, -50, 10, 42, 53, 26, -25, 10, -10, 39, -1, -33, -1, 53, -2, 20, 21, -9, 2, -19, -8, -28, -30, -31, 2, 42, 16, -14, 45, -29, 20, 10, -23, 54, -5, 6, 18, -25, 29, 27, -3, 22, 42, 16, -41, -8, 1, -14, -7, -20, -3, 42, 22, -2, 24, -15, 21, 18, -52, 2, 6, -5, 21, -46, 9, -6, 15, -11, -40, -24, -5, 18, 46, 13, 45, -50, -16, 6, -8, -7, 8, 11, -3, -30, -13, -29, -21, 3, -18, -4, -35, -20, -25, 32, 11, 17, 11, 1, 51, -39, -1, 26, -41, 1, -23, -52, -31, -12, 30, 14, -56, -16, -25, 27, -19, 6, -13, 10, -30, -15, 18, 12, -7, -26, -5, -4, -50, 3, -17, 13, 25, 18, 12, 5, -20, -3, -52, -5, -31, -23, -31, 10, -4, -6, 12, 11, -10, 13, 4, -1, -4, 27, -15, -33, 40, 42, -39, -31, 24, 8, 23, -68, -1, 34, 8, -20, 34, -9, 23, -30, -11, -66, 37, -10, 34, 27, 19, -5, 5, 8, 54, 25, -16, 3, -27, -24, 34, -5, 13, -30, -40, 12, 9, 29, 7, -12, 8, 10, 14, -13, 7, 54, -12, -72, -9, -12, -27, -27, -25, 6, 18, -27, 13, -35, 27, -72, 49, -31, -13, 52, 37, -4, -43, 5, 1, 43, -21, 1, -24, -74, 14, -53, 12, -65, 31, -4, -15, -7, 18, 27, 25, -32, -8, 27, 15, 4, 13, -91, 0, -16, -33, -18, -49, 63, 23, -5, -36, 6, -14, -27, 38, 27, 7, 25, -19, 27, -40, 51, 0, -60, 45, 72, -10, -32, 8, 7, -10, -41, 53, 16, -23, -8, -39, 6, 9, 40, 30, -9, -17, 10, -2, -16, -9, 58, 13, 24, 1, -17, 29, 23, -7, -30, -8, 39, -7, -12, -87, 14, -3, 14, 2, -33, 16, 17, -1, 13, -12, -18, -17, 23, -30, -33, -52, -11, -8, 37, 2, -54, -30, -15, 26, -18, -6, 15, 13, 52, -6, -10, -80, 41, 48, -9, -80, 9, -14, 7, 33, -7, 25, 21, 26, 23, -33, 12, 27, -29, -20, -13, 26, 11, 13, 14, -15, -8, 15, 20, 30, -45, 11, -42, -13, 38, -13, 21, -14, 2, 19, -24, -17, -23, -1, -14, 3, 0, -11, -60, -8, 3, -31, 11, 31, 17, 38, -11, -15, -8, 6, 3, 11, 0, 35, -56, 11, 15, 54, 10, -41, -1, 30, 37, -21, 36, -11, 5, -35, -34, -3, -2, 42, 11, 46, 1, 20, 5, 14, -1, 19, -1, -2, -27, 28, -28, 5, -40, -26, 13, -40, -66, -11, -15, -43, 0, 60, 5, -22, -74, -21, 5, 13, -16, -11, -4, 18, 34, 46, -23, 21, -48, 13, 61, -31, -2, -13, 32, -22, 15, 52, -33, -12, -11, -96, -6, 15, -37, -38, -23, -15, -48, -14, -28, 81, 68, -13, -40, 7, 15, 1, -31, -30, 17, 14, -2, 3, 4, -30, -29, -38, -21, 19, -89, 20, 15, 1, 61, 15, -5, -6, -36, 32, -33, 31, -26, 63, -42, 17, 0, -49, -7, 13, -20, -36, -19, -29, 39, 24, -30, 68, 12, 11, 17, -8, -18, 9, 47, -9, -5, 61, 3, 18, -43, 0, -14, -12, 75, -5, 26, -7, 57, -16, 11, -43, -8, 16, -50, 31, -15, -18, 4, -31, 10, 13, -15, -84, 15, -34, 14, 37, -10, -33, 2, -26, -48, 54, -35, -10, -29, 17, -30, 0, -2, 65, -17, -75, 1, -19, -43, 55, 47, -5, 47, 55, -3, 7, -43, 2, 26, 38, 0, 65, -6, 30, 9, 0, 15, 29, 21, 26 ]
Hooker, C. J. Appellant was sued in assumpsit for services rendered by plaintiff in the trial of a case in circuit court. The declaration was upon the common counts, and the bill of particulars was as follows: “ 1890, Feb. 26 and 27. To trying cause in the circuit court {Millard v. Truax); to two trips to Hillsdale (before trial); to two trips to Toledo (before trial), — $150. “Dated October 8, 1890.” Plaintiff, in testifying upon his own behalf, stated that his first employment by defendant was to defend him upon the charge of assault and battery, out of which the case subsequently tried at circuit grew. He stated the conversation between them, the fact of the trial, and its result, and some conversation immediately following defendant’s conviction. Objection was made to the testimony, as immaterial. The particular statements complained of seem to be the following: “I told Mr. Truax this: cI just came from the courtroom, ' and was with other lawyers there, who were condemning your action, in strong terms, in striking the old man Millard, and I condemned it.’ I said: Tt would be in rather poor keeping for me now to make your defense, after I had already said that.’ He urged me so hard that I finally told him that I would; at least, until something further occurred, I would take Ms defense. I went away from him, and was gone an hour and a half or two hours I came back, and told him that I did not believe I would, and he wanted to know the reason why. I told him that he had had trouble with all the lawyers he came in contact with; that the attorneys upon the street had told me that a lawyer at Lansing, and all the lawyers he had had any business with, had always resulted in difficulty; and, furthermore, I was rather timid about taking the case, anyhow. He urged me so hard that I finally took the case. I also announced to him at that time that my wife had urgently requested me not to have anything to do with the case. But I came down on the adjourn day of the criminal case, and it is my impression that he was arrested with a capias for damages. Upon the day of trial of the justice’s court criminal case Mr. Truax said he was not ready for trial; that his mother was an important witness. I told him, if I ever tried that case in the justice’s court, I was going to try it that day. That case was completed. And I had so many talks with Mr. Truax, of course I cannot remember all of them; but upon the capias case I said that I thought I could get the case dismissed, and out of court, by some points that I had in view. Nothing further was said. In a subsequent talk, he said: ‘Now, I want that case in circuit court to be tried immediately, and I do not want it delayed one moment.’ ” The error complained of in this is that plaintiff testified to what the lawyers about town said about defendant’s having trouble in settling with all the lawyers he ever had, etc. The testimony complained of related only to the employment to try the justice’s court case. It had no connection with the capias case, which had not been commenced. The conversation Avas therefore immaterial, and should not have been admitted. Its character was such as would be likely to prejudice the jury against defendant. After-the trial at circuit, the parties to the present suit went to the office of Watts & Smith, and from there went up street together. Defendant asked plaintiff what he thought about the case. He answered: “Mr. Truax, I think just as Mr. Smith does, — that the best duty you owe to yourself is to go and pay the amount they have recovered against you.” Defendant claims that what Mr. Smith said was immaterial. This is perhaps true, but the conversation between the parties was admissible. Plaintiff was advising the defendant professionally about the case. It was a part of the business of his employment, and the fact that Mr. Smith’s advice was alluded to does not make it inadmissible. The questions raised by the 3d, 4th, and 5th assignments of error relate to the hypothetical questions asked several witnesses, as to the value of the plaintiffs services. The record does not show that all the evidence is included in the bill of exceptions, and we cannot assume that there was not a foundation for the questions. There was no error in the instruction to the jury that' the plaintiff was entitled to what the trips to Toledo and Hillsdale were reasonably worth. There was no dispute about his making them, or the claim that no price was agreed upon them; and the evidence- that plaintiff made no charges for them could not be taken as meaning that he did not expect pay for them.' His bill of particulars included them, and he was claiming compensation for them at the hands of the court. The evidence that two years before some negotiations had been had by letter, wherein plaintiff had agreed to take $10 per day for work, cannot be said to have had any bearing upon the question of the fixing of a price for plaintiffs compensation for these- services. Hence the seventh assignment is without merit. The court instructed the jury that plaintiff should be permitted to recover for the time necessarily spent in attendance upon court, while awaiting trial, before the case was reached. The bill of particulars does not limit the time spent upon the occasion of the trial, unless it be by stating two dates, February 26 and 27. It charges for three items, all under these two dates, although it is clear from the bill that all the services could not have been then rendered. The defendant ought not to have been misled, but should have understood that plaintiff claimed for all the services rendered in the case. Had the question been raised upon the trial, the court would doubtless have permitted an amendment, if it had been thought necessary, to cover the proof. The last assignment of error relates to the failure of the court to mention the subject of payment in his charge. The payment was admitted, and, for aught that appears, was considered by the jury. The courts attention was not called to it, and counsel for defendant did not think enough about it to make a request. We think that error could not be predicated upon this, as the jury could hardly overlook so plain a proposition as that payments should be deducted, when it was conceded upon the trial. For the error committed in receiving plaintiff’s testimony, the case must be reversed, and a new trial ordered. The other Justices concurred.
[ -12, -6, 7, 20, -5, -25, -6, -67, 5, -11, 8, -30, 17, -11, 31, -9, 0, -42, 65, 0, -62, -16, 16, -2, -27, -25, 36, -6, -8, -65, -15, 48, -1, 21, 7, -32, 39, -56, -1, 0, -12, -21, 50, -45, 32, 0, 30, -14, -3, -51, -18, -16, -80, 8, -54, 0, 13, -23, -27, 0, -39, -14, -9, -90, -2, -43, -41, 30, 54, -37, -26, -39, 28, -21, -13, -63, -31, -23, 18, 9, -8, 4, -10, -9, -16, -15, 15, -21, 11, -36, -7, 30, -42, -1, 33, -3, -34, 49, 44, 35, -6, 7, -57, -24, 31, 5, -2, -37, -41, 26, 13, 6, 89, -47, 29, -31, -25, -37, -1, -29, 15, -3, 5, -46, -1, 30, -37, -14, 41, 11, 35, 4, 25, -9, 30, 30, 13, 16, -36, -13, 12, 32, -13, 12, 40, -12, -12, 30, -17, 2, -34, 14, -36, -16, 21, -13, 20, -20, 36, 21, 35, -51, 7, -28, 7, 10, -8, -9, -7, -16, -12, 34, -6, -8, 22, -2, -12, -2, -13, -16, 8, 0, -4, -55, 53, -49, 62, -26, -27, 45, -9, 28, -15, -16, 31, 20, 19, -40, -2, 36, 11, -51, -38, -22, -21, -66, 43, -51, 5, -23, 15, 47, -4, 0, 21, -9, -3, -29, 0, 3, -24, -14, 12, 7, -30, 3, -40, -11, -16, 48, 50, -38, -13, 39, -48, -11, 15, 18, 36, -10, -40, 2, 57, -32, -21, -8, -45, 15, 1, 40, 17, 47, 5, -36, -13, 15, 5, -29, -28, 1, 42, 27, -22, 27, 19, -23, 20, 34, 19, -6, 38, -36, 2, 50, 3, -14, -48, 39, 14, -5, 15, 17, -52, -50, -24, -53, -29, 6, -20, -12, 14, -17, -40, -5, 21, 52, -22, 30, 0, 30, 5, -8, 4, -3, -8, -22, 54, 0, -27, -2, 29, -8, 9, -28, 50, 10, 11, 21, -6, 8, -8, -14, -43, 34, 18, 0, 2, -12, -52, 7, -16, 34, -10, 11, -55, -8, -19, 3, 64, -37, 30, 19, -67, 0, -15, 41, -62, -4, 22, -15, 54, -40, -7, -25, -10, 8, -12, -42, 18, -26, 19, -54, -21, 9, 42, 23, -43, -33, 30, 49, -8, -4, -17, -2, -12, 10, 23, 23, -21, 82, -57, -26, -34, 20, 10, 4, -46, 2, -17, 16, -47, 40, 76, 27, 57, 27, -53, 9, -33, 10, -53, 24, 40, 13, -25, -24, -10, -1, -24, 0, 10, -13, 39, 54, 31, -27, -6, 34, -12, 22, 44, -20, 5, 33, 7, 41, 36, -26, -10, -46, 34, -50, 46, -1, -6, 50, 0, 14, 22, -1, 0, -4, 11, -36, 54, -51, 26, -3, 7, -36, 33, -3, 26, 8, -43, 7, 9, -12, 29, -7, 23, -25, 6, 14, 36, -5, -34, 1, -43, 32, 14, 10, -42, -17, -23, 40, 36, 24, -11, 3, -3, -15, 68, 82, 2, 6, -19, -50, 41, 4, 40, 26, -3, 14, 36, 23, -3, -10, -17, 12, 0, 14, -1, -46, -2, -15, 20, -10, 25, 5, -8, 13, 0, -53, 6, 74, 2, -11, -6, -31, 3, 2, 7, -16, -17, 7, 0, 40, -20, -42, 59, -8, -7, 15, 30, -10, -14, 7, -2, -22, 3, -7, 72, -14, 17, -12, 1, -11, 37, 24, -42, 19, 46, -13, -20, 50, -13, -21, 8, 17, 30, -16, 12, -12, 9, 1, 1, -19, 49, -3, -27, 9, 17, -18, 22, -3, -25, 9, 1, 32, 25, -27, -14, -41, -29, -75, -14, 3, -27, 70, -14, 24, -25, -8, -31, -10, -23, -19, -4, 12, 41, -18, -6, 40, -2, 19, -36, 13, 72, 34, 19, 13, 24, -34, -35, -16, -35, -11, -48, 35, 35, -20, -5, 34, 22, -54, 16, -92, -8, -65, -20, -48, -9, 58, -19, -41, 8, 16, 0, 29, -46, 39, -17, -14, -19, 32, -46, -20, -44, -39, -5, 21, 22, -16, -10, -50, 0, -15, -3, -14, 23, 15, -48, 20, 20, -21, 36, 31, 18, 36, 64, -30, 45, 23, 42, -7, -36, 46, 68, -15, -9, -12, 96, -21, 35, -7, -11, 19, 10, -12, 31, -3, 36, -25, 23, -2, 21, -1, -45, -51, -38, -19, 11, 0, 57, -10, 11, -37, 34, -43, 55, -1, 19, 9, 36, 41, -5, -14, -23, 28, 18, 33, -7, -15, -23, 37, 3, -10, -1, -38, 40, 26, -3, 10, -15, 5, -23, -28, -33, 20, -13, -31, -23, -23, -60, -11, -1, -27, -34, 41, 22, 2, 50, 24, 29, -3, -38, 4, -39, 12, -16, -7, 33, -37, -46, 72, -11, 25, 28, -17, -3, -4, 17, -40, -6, 28, 14, 0, -78, -10, 46, 0, -55, 22, 16, -6, 55, -6, -5, -50, 35, -57, -42, -19, -40, -28, 43, -13, 3, -16, 26, 17, 60, -3, 1, -33, 16, -3, 13, -1, -22, 16, 16, -32, -16, -25, 6, -13, -33, 4, -38, 21, 27, 29, -19, 2, -5, -26, -1, -22, 28, -31, 63, 14, -35, 22, -5, -23, -25, 22, 7, 14, -10, 53, 16, -4, 46, -1, -4, -64, -7, 51, -31, -57, -29, -72, -17, 18, -54, -28, 0, 21, -64, -14, 33, -16, 42, -18, 27, -19, 27, 15, 13, -37, 15, 25, 37, -12, 16, 9, -37, -10, -10, 22, -9, -1, 1, -24, 14, -2, 34, 48, 42, 21, 43, -9, -31, -24, 14, -22, -22, 0, 31, 9, -24, -26, -8, -13, -13, 43, 0, -7, -18, 24, 20, 8, -11, 22, 17, 11, -18, 24, 31, 58, -25, -29, 43, 14, -11, 54, 0, -25, -63, -24, -24, 4, 20, 3, 4, 9, 32, -12, 6, -53, -18, 5, -37, 2, 11, 62, -45, 0, 52, 24, -30, -9, 20, -6, 19, 19, 38, 1, -24, 7, 5, 21, 40, 11, 0, -14, 20, 5, -11, -37, -31, -13, -20, 12, -13, -32, -16, -31, -13, 13, 0, -6, -58, -16, -13, -21, -23, 76, 19, 0, 15, 5, 9, -51, 5, -15, -28, -6, 16, 13, -7, -6, 52, 34, -15, -20, 4, 51, 23, -29, -11, 19, -25, -35, 15, -13, -16, 16, -5, 30 ]
Montgomery, J. This is a bill in aid of execution. Complainant levied execution upon real estate formerly the property of David L. Phenicie, which was conveyed on May 31, 1889, to Eliza A. Phenicie, the bill alleges, without consideration, and in fraud of creditors; and complainant asks that the deed be set aside and held void as to him. The answer denies the alleged fraud. The cause was heard in open court, before the circuit judge, and a decree was made dismissing the bill, with costs against the complainant. Complainant appeals. The theory of the defense was that David L. Phenicie became indebted to his wife for moneys advanced and loaned by her from time to time, and, as is usual in such cases, the aggregate amount claimed to be due is the various sums originally advanced by the wife to the husband, together with interest, without any deduction whatever on any account. Such a course of dealing is so against common experience as to call for a very careful scrutiny of the testimony by the court. It is not the common course for a lady possessed of considerable means to continue in possession of an estate for a long term of years without applying or appropriating one dollar of it to any purpose whatever, and while it is the duty of the court to protect the property rights of married women, even as against the creditors of the husband, it is no injustice to the parties in a case like the present to apply, in construing the testimony, such fair presumptions as the common experience of mankind suggests. The learned circuit judge found as a fact that the value of the real estate conveyed was $10,000, and it appears that, at the same time that the real estate was conveyed, $350 worth of personal property was also transferred. The circuit judge also found that, at the time the deed was made, the indebtedness due from defendant Phenicie to his wife amounted to $8,181, which, as before stated, included all the sums advanced, together with interest thereon, deducting, however, from her claim the value of 40 acres of land, which she testified was given to her by her husband as a New Year’s gift in January, 1875. I am satisfied from a careful examination of the record that the circuit judge reached the correct conclusion in deducting the value of this 40 acres from the sum due to the wife. It is suggested that, as the complainant called the defendants as witnesses, he is bound to accept their .statements. This does not preclude the court from construing their testimony, and if, from the whole course of dealing of the parties, the court is convinced that it was the intention hy the purchase of the 40 acres to set aside so much of the funds which had come to the defendant Mrs. Phenicie from her father’s estate, there is ample justification in charging her with it. The circuit judge, who heard the testimony and saw the witnesses, reached this conclusion, and, in my opinion, his conclusion on the •question of fact should not be' disturbed. But it is said that the disparity between the amount of indebtedness from the husband to the wife and the value of the real estate is so small as not to suggest any intention to defraud. The parties may have been mistaken as to the amount, but, if so, there is no reason why the defendant Eliza A. Phenicie should not be chargeable with the unpaid portion of the purchase price. It is not a case where the question is whether the inadequacy of the consideration is such as to render the transaction void as t<J creditors, but it is clear that the intent was, on his part, to sell the land to defendant at the agreed price of $10,000. If, from mistake or for other reason, she failed to pay the full consideration price, it is not an injustice to require that that payment be now made. I think that the land should be held subject to a vendor’s lien, amounting to $2,169, and this complainant subrogated to the rights which the vendor would have in the premises; and that a decree should be entered for complainant for that sum, with interest from the date of the transfer,— May 31, 1889; and that, in case of failure to redeem within 90 days from the date of this decree, the land should be sold to satisfy the amount of this lien. The complainant should recover costs of both courts. Long and Grant, JJ., concurred with Montgomery, J.
[ -10, 23, -18, 27, -9, -6, 58, 41, 24, 13, 16, 1, 52, 31, -10, 25, 28, -27, -9, 31, -26, -11, -2, -5, 27, 2, 45, -21, -7, 11, 36, 13, -58, 32, 35, -20, -18, 13, 27, -17, -12, 72, -11, 3, 13, 31, 9, -16, 17, 27, -37, -60, 35, 6, 3, -29, -37, -31, -65, -4, -1, -48, -14, -34, -4, 34, 18, -21, -34, -54, 2, 15, -16, 8, 32, -9, -16, -47, -34, -37, -50, -37, -2, 14, -16, -34, -21, -27, -21, 41, -18, -44, -6, 0, -3, 2, 24, 69, 28, 10, -9, -14, -22, 44, 28, -4, 13, -24, -40, 1, 25, -45, -5, -6, 6, -20, -49, -47, -20, -9, 23, 10, 44, -20, -13, -22, -48, 4, -25, 6, 13, -8, -58, -18, -5, -41, -6, 8, -11, -33, -20, -35, -8, -37, 9, 45, -11, -5, 7, -39, -9, 12, -31, 28, 48, -25, 5, -37, 25, 11, 22, -32, 23, -34, -41, -34, -19, -58, 32, 32, 36, 33, -42, -5, 48, -3, 19, -16, -14, -11, 33, 18, -18, 1, -14, -14, 21, -3, 10, -44, 6, -7, -11, -15, 0, 48, 10, -44, 15, -12, -37, -29, -28, 3, 10, -16, -12, -14, 1, 10, -37, -11, -21, -7, -44, 39, 27, -46, 44, 31, 49, 61, 1, -15, -27, -61, 25, 0, 14, 2, 0, 10, 5, -25, 4, -15, 30, 12, -35, 16, -27, 44, 47, -69, -21, 26, 13, 18, -41, 28, -63, 0, -42, 48, 0, 59, 33, 4, -7, -42, -12, -6, 37, -5, 67, -17, 20, -12, -14, 31, 30, 3, 14, 51, -2, -29, -23, 6, -37, -8, 32, -25, -10, -5, -9, -18, -20, 4, -17, 30, -20, -36, -3, 23, 8, 50, 12, -1, 35, 7, -13, -53, 22, -12, -1, 5, 23, 20, 5, -33, -17, 13, 18, -1, -1, 11, -17, -19, -3, -10, 23, -25, -9, -23, 13, 5, 23, -2, -48, 69, 66, -9, 15, -31, 3, -8, 0, 15, -22, -47, -3, 9, 11, 28, 14, 13, -17, 10, -38, 35, -42, -11, -37, 45, -17, -29, 37, -17, 20, 15, -17, 0, 30, -47, 5, -11, -49, -46, -1, -5, -7, 47, -51, 20, 5, 31, -38, 14, -6, -8, -7, 30, 14, 59, 16, 17, -25, -12, 40, 47, -7, 34, -10, 17, -11, -37, 13, -15, -64, -24, 4, 18, -58, -10, -44, -3, -17, 11, -11, -3, 25, -47, 84, -3, 24, 16, 5, -39, 53, 34, 16, 0, -13, -15, -5, 13, 0, -12, 30, -42, -56, 44, 0, 29, 22, 21, -27, 3, -11, 1, 18, 19, 14, 25, 2, -12, -22, -28, 25, 10, 26, -2, -5, 34, 1, -17, 50, -4, 14, -28, 17, 4, 23, -31, 22, 6, -23, 8, 4, -18, 15, -3, 11, -26, 17, 0, -21, 13, 17, -2, -29, 8, 10, -6, -8, -16, -63, 13, -46, -10, 52, -34, 14, 6, 13, -19, 2, -50, 20, 7, -9, 24, 6, 9, -21, -10, -25, 42, 41, 62, 11, -33, 29, 38, -12, 64, 65, -27, 55, 32, 12, 5, -49, -2, -5, -12, 36, 21, 10, -19, -39, 17, -62, -9, -27, 7, -17, 5, 1, -23, -47, 42, 50, 53, -23, 52, 14, -42, -5, 24, -23, -21, 31, 6, -20, 7, 0, -67, -24, -10, -8, -32, -25, -56, 25, -23, 37, -55, -31, 34, -38, -63, 6, -11, 25, -22, -26, -48, 4, 15, 2, -22, -1, -43, 54, 13, -20, 56, -19, 7, -35, 54, 18, 12, -8, -24, -19, -23, -33, 1, -75, -12, -33, 0, 20, -8, -9, 22, 18, 14, 12, 15, 55, 14, 3, 46, -15, -47, -8, -7, -3, 29, 1, 16, 22, -12, -4, 30, -8, 64, -10, -23, 21, 38, -32, 29, 41, 12, 14, -71, -39, -15, -47, -24, -50, 46, -33, 10, 7, -4, -30, -22, 14, 0, 42, 37, 48, 21, 2, 8, 51, -26, 56, 51, 8, -19, 35, -24, -18, -25, -22, -39, 28, -15, 33, 4, -14, 39, 17, 3, -12, -26, 14, 29, -23, 28, -5, -2, -17, 58, -17, -50, 9, 36, -6, 3, 18, -23, 41, 34, 58, -27, 8, 35, -16, -15, 24, 3, -62, -76, 7, 11, 9, -12, -32, -54, 77, -16, 18, -43, 18, -68, 18, -12, -22, 12, 26, 16, 6, 32, -5, 26, -65, 7, 12, 2, -19, -14, -15, -100, -69, 14, -50, -4, 23, 0, -33, -14, 22, 21, 29, 37, 29, 5, -32, -25, -45, -38, 1, -30, -13, 44, -43, 10, 15, 9, -13, -6, 20, 14, -14, 27, 8, -8, 26, -9, -13, -30, 8, -5, 34, -28, -32, -26, 21, -32, 7, 0, 44, -4, -4, -31, -12, 29, -48, -16, -31, -32, -14, -30, -31, 24, -36, 39, 19, 8, -48, 45, -46, 34, 11, -4, -31, -8, -39, -4, -3, 15, 19, -8, -3, 51, -4, 18, 17, 15, 11, 19, -23, 13, 38, -43, -2, -2, 9, -4, -14, -21, -33, -24, -46, 2, -16, 25, 21, -34, 4, 27, -10, 43, 18, 0, 31, -3, -32, -63, 5, 42, -2, -10, 29, -3, 21, -26, 1, 0, 7, 51, 35, 9, -26, 13, -9, 6, 27, 27, 10, 9, 2, 54, -16, -2, -54, 56, -21, 53, 44, -36, -26, -31, 3, 20, -11, -15, -32, 8, 19, -13, 20, -17, -9, 13, -49, -46, 18, -2, 13, 28, 6, -4, 17, -9, -42, -32, -48, 41, 7, -30, 0, -2, 27, 7, 10, 3, 12, -6, 10, 2, -19, 44, 12, -23, -17, 7, -28, -27, 0, 14, 12, -28, 56, 8, 2, -9, -14, 23, 43, -27, 10, 22, -33, 44, 48, 37, -14, -7, -32, -13, -9, 26, -46, 6, 15, -64, 9, 22, 15, 22, -15, -7, -10, -90, -29, -38, 6, 33, 78, 6, 16, -48, 22, 7, -17, 35, 27, -6, 28, -10, 0, -31, 27, 22, 18, 52, -14, -18, -27, 0, 0, 4, 0, -18, 20, 30, 41, -35, 39, 22, 4, -30, -74, -27, 42, 35, 2, 44, 5, 13, 52, -10, 11, -28, 7, 45 ]
Montgomery, J. This is an action on the case for libel. The publication complained of is the following: “SCOOPED HIS COHSIN! “WILLIAM HATT MARRIES CHARLES HATT’S INTENDED. “The Jilted Man's Wedding to have Occurred “ To-night. “Justice Phelan Officiates at Noon To-day, and William Hatt and Annie Hack start for Toledo until the Storm Bloivs Over. Charles Hatt a Cleric at Mabley & Go’s. “ A triumph of youth over middle age to-day resulted in one of the most amusing incidents in real life that has ■occurred in this city in many a day. The affair borders very strongly on the realms of fiction, and at the same time shows the benefits of hustling. “ Charles Hatt is a clerk in Mabley & Co.’s clothing department, and is 44 years old. For some years he has been an admirer of Annie Hack, the 22 year old daughter of John V. Hack, a painter living at 22Í Sherman street. Annie is a very pretty blonde, with short hair, which curls closely, and gives her a dashing air. “"William S. Hatt is 24 years old, also a clerk, and is the son of "William Hatt. He has been in the south for ■some months, but returned a short time ago, and proceeded to renew his acquaintance with the fair Annie. He then learned that during his absence she had engaged herself to his older cousin, Charles. But he was not ■daunted by a little thing like that, and laid fast and furious siege to her heart. Charles, in the mean time, had his wedding set for this evening at his boarding place on Lafayette avenue, and had engaged a clergyman to solemnize his marriage to Annie. He also employed a florist to decorate the house in fine style, and had arranged for a two-weeks vacation. “Last night William called on Annie, and a couple of moments later Charles drew up in a coupe. William •appeared to give way to his older cousin, but was hugging himself over a little scheme that he thought would take the wind 'out of Charles’ sails in great shape. The cause •of his good feeling was disclosed about 12:30 to-day, when he and Annie entered the county clerk’s office, glancing ■anxiously behind them. William asked- for a marriage license as quick as possible. 'We have only an hour to head them off,’ he remarked. He was asked who, but only chuckled to himself, and said to Annie, 'We’ll beat them, sure.’ Annie betrayed all the nervousness that William concealed by his bravado, and was fearful that something might happen. As the license clerk was at dinner, Deputy County Clerk Marshall made out the document in short order, and William asked where they ■could go and get married quick. The News directed them to Justice Phelan, who made them one in short order, and was about to claim his privilege of kissing the bride, when William put his arm around her, drew her to him, and gave her a "resounding smack, saying: 'There, we’ve beat him, and now we have 10 minutes to catch the Toledo boat.' Tie stated that they would stay in Toledo overnight to let the storm blow over, and give Charles 24 hours to smother his disappointment. While the justice was making out the certificate, William could not remain still, so-great was his joy at having outwitted his cousin and captured the darling Annie. She, however, had got over her nervousness, as the danger of any interference was past, and willingly agreed to wait while her husband took the justice and the reporter to the Normandie for some cigars. She also joked a little on Willie's exuberance of spirits, and the fact that she only changed the last two letters of her name. “Charles Hatt, of Mabley’s, says that Wm. S. Hatt is no relation of his, and that he does not intend to get married, as he is not even in love. He also says that when he does get married he will open the champagne, and invite the reporters to have a good time.” It is contended that the article in question is not. libelous. It is the settled law of this State that any printed publication, the natural result of which is to bring ridicule or contempt upon the plaintiff, is, if untrue, libelous. Tryon v. Evening News, 39 Mich. 636; Odgers, Lib. & S. 21; Starkie, Sland. & L. 157; Newell, Defam. 34. Was the article in question calculated to bring ridicule- or contempt upon the plaintiff? We think this question must be answered in the affirmative. The article deals with the most sacred relation.in life, and the purpose to-hold the plaintiff up to ridicule is, we think, apparent. Were the test applied which prevails -in some jurisdictions, namely, whether the article was such as might reasonably, according to our natural passions, be considered as provoking a bi’each of the peace, we are xxot prepared to say that this publication would not" fall within it. It is charged in this article, first, that the plaintiff was not only engaged to the young lady reterred to, but that the wedding was set for the evexiing when the publication was made, and that the man to whom she was in fact married was a cousin of the plaintiff. The article contains a statement that the plaintiff denied both the alleged relationship to "William Hatt and the alleged engagement. This amounted to charging the plaintiff with uttering a falsehood. In Tryon v. Evening News, supra, it was held that a publication which charged the plaintiff, a reporter, with violating confidence, was libelous. Defendant’s counsel complain of the rulings of the court in receiving testimony, the general tenor of which was (to quote from counsels’ brief)— “ To show that the plaintiff was a man of extreme ■sensitiveness; that his feelings were deeply hurt by the remarks made by friends to him, which of themselves appear to have been entirely innocent; but, as” the result ■of the comments of his friends, he was humiliated in his ■own estimation, and rendered sick and unfit to attend to his work. * * * Where the plaintiff relies upon the libelous character of the publication from its face, no -evidence of special damage, or other damage except such as the law would presume would follow from the publication of the article, is admissible, unless claimed in the pleadings.” Respectable authority certainly can be found supporting this contention. Were the question a new one in this ■State, we should seriously doubt the correctness of the holding below. In Newell on Defamation (page 779) it is ■said: “The general rule, as stated by Starkie, is that no evidence of special damage is admissible unless it be averred in the declaration, whether the special damage be the gist ■of the action or be used as matter of aggravation, the words being in themselves actionable. But it has been ■said that greater certainty is requisite where the special damage is the gist of the action than where it is merely laid by way of aggravation.” The allegation in the present case is that plaintiff— “Hath been and now is greatly injured in his good name, fame, and credit, and brought into public scandal, humiliation, ridicule, and disgrace, and he hath suffered much annoyance, and incurred public derision, sarcasm, and contempt, and batb otherwise been greatly injured." In Burt v. McBain, 29 Mich. 260, the words spoken imputed to the plaintiff a want of chastity. The plaintiff was permitted to show that because of the slander she was. excluded from society, and was affected in mind and health. This was held not to be error, although the declaration did not claim special damages. The Court say: “These results are the natural, and we might almost say the inevitable, results of such a slander of a virtuous young woman, and they might be shown without setting them out in the declaration. * * * It is to be borne-in mind that our statute makes the imputation of a want-of chastity in a female actionable per se, so that the-necessity for an averment of special damages in order to-show a cause of action is not requisite here, as it otherwise would be; and some decisions to which we were referred, which were made in states where no such statute-exists, are for this reason not applicable.” It is difficult to distinguish that case from the present. The rule there laid down is that, under a declaration which sets out a libel which is actionable per se, it is not necessary, in order to introduce evidence of so-called special damages, to show that the results which naturally flow from the publication did in fact appear. Error is assigned upon the charge of the court, for the reason that under it the jury were permitted to award exemplary damages. There was no error in this instruction, as the evidence showed that information of the falsity of the statements contained in the article was brought home-to the reporter before the article was published. Complaint is also made of the following instruction: “ That the reporter of the News, Mr. Stewart, had knowledge, prior to the publication of the article, that the article was untrue, and that he could easily ascertain, and did ascertain, that it was untrue, and the negligence of the Evening News to ascertain was culpable, which neg lect the jury haye a right to consider in assessing the damages in this case.” The ground of complaint is that the .instruction quoted is contradictory of itself, and confusing. It is urged that it is not true that it can be said that the defendant was chargeable with negligence in not ascertaining that the article was untrue, when in the same, instruction it is stated that it had ascertained and knew that it was untrue. The defendant could not haye been prejudiced by this error, as the undisputed testimony showéd that the article was published after notice of its falsity. The judgment should be affirmed, with costs. The other Justices concurred.
[ 10, -85, 62, -19, -19, 10, -11, -40, 20, -89, -26, -24, 26, -17, 1, -35, 8, 8, 34, 5, 44, -8, -14, 4, 21, 34, 42, -25, -66, -19, 15, 65, -48, 8, 11, -23, 21, -5, 14, -56, -63, -78, -13, 48, 67, 13, 17, -61, 54, -7, -45, -84, -43, 64, 24, 18, 17, 61, 47, 11, 52, 29, 47, -77, -19, -19, 37, 21, 12, 4, 39, -36, 19, -37, -44, -88, 10, -30, -29, 39, -15, -55, -19, 5, 39, -14, 62, 40, 32, -10, 14, -42, 26, -7, -32, 7, -65, 25, -47, 19, -49, -9, -85, -50, -23, 36, 58, 4, -44, 30, 36, 43, 39, -3, -14, -11, 77, -52, 18, 12, 0, 24, -4, -25, -3, -57, -59, 43, -46, -16, 4, 55, -12, 10, -49, -12, 0, -55, -45, -70, 8, -56, -62, 34, -27, 17, -111, 38, -56, -21, -52, -33, -7, 29, 4, 0, 9, -58, 48, -32, 1, -59, -2, 9, -48, -20, -30, -50, -8, 48, -59, 14, -20, 19, -14, 16, -65, -55, -28, 8, 2, 25, -23, 20, -43, -59, 89, -35, -53, 62, -16, -15, 1, 17, 71, -9, -37, -51, 5, -64, -9, -6, -11, -5, 28, 4, 41, -40, 14, -10, -26, -15, -7, 41, 14, 30, -37, -45, -5, -48, 47, 26, 10, 9, -30, -82, -53, 8, 0, 6, -20, 0, -57, -71, -2, 7, -25, -29, -8, 10, -23, 14, -29, 18, 6, -16, 55, 49, 31, 85, -3, 23, 16, 42, 14, 52, 7, 59, 72, -16, -100, 21, 23, 15, 19, -15, 0, 35, 39, 12, 47, -41, 13, 34, 35, 34, -9, 17, 12, 14, 8, 35, -14, -9, 24, -30, -10, -26, 19, 29, 2, -16, -16, -16, -29, 33, 28, 42, -29, 17, 18, 34, 25, -35, 19, 3, -15, -87, -7, -42, -42, -24, -32, 14, 15, -7, 4, 30, -42, 39, -70, -110, -33, 35, -49, -15, 17, 28, -22, 27, 17, 21, 23, -24, 16, 8, 36, 32, 23, -45, -13, -8, 19, 5, -17, 21, 34, -33, -31, -24, -21, -32, 14, -21, -7, -8, 24, -11, 18, -39, -4, 14, 7, -23, 36, -2, -14, -19, 37, 20, 49, -16, -4, 7, 48, -4, -27, 7, -44, 59, 41, -103, 19, 0, -30, -40, -29, -34, -23, 23, -12, 64, 30, 4, -22, 13, 4, 9, 17, 47, 22, 30, -8, 9, -9, 49, -99, 27, 1, 10, 8, 27, 69, 30, 32, -2, -22, 9, -49, 5, -15, 31, 17, -85, -12, 21, -10, 1, -11, -56, 26, -43, 43, 37, -16, -35, -4, 68, -30, 10, -8, -15, -11, 65, -4, 17, -6, 13, 16, -30, 10, -12, -3, -11, 36, -23, -40, 61, 36, 49, 75, -8, -15, 29, -37, 50, -21, 13, -83, 26, 13, -24, -1, 7, -35, 12, 2, 24, 40, -66, 33, 35, 3, 55, -60, -17, 10, 8, -2, 8, 15, -25, -77, -6, 31, -10, -11, 31, -24, 23, 0, 32, 26, -63, 9, 4, -14, 56, 40, -10, 16, -110, 24, -11, -33, -2, -16, 35, 24, -6, 22, 10, 9, 49, -8, 57, 19, -45, 9, 14, -30, -16, -51, 2, 41, 2, 58, 22, 37, 6, 18, 18, 28, 32, -65, 16, 22, -45, -23, 30, -1, -3, -1, -47, -53, 93, 27, -14, 44, 2, 1, -36, -2, -28, -5, 6, -22, 5, 56, -19, -18, -89, 26, 26, 25, -34, -15, -38, 54, 42, 35, -48, -15, 9, -30, -4, -60, -25, 11, 10, -55, 22, -31, 4, 0, -45, -24, 76, 8, -23, 5, -32, -4, 53, 26, 20, 24, 41, 25, 0, -26, -39, -24, 1, 3, 40, -80, 3, 30, -25, -49, 56, -65, 3, 91, -16, -8, -17, -16, -21, -15, 15, 27, 69, -51, -37, 38, 20, 12, 48, 30, -55, 0, -17, 3, 28, 31, -34, 7, -62, 37, -33, -23, -25, 25, -36, 13, 50, -62, 37, -19, -5, -12, 47, 36, 8, 22, 52, 7, -34, -12, -4, 3, 9, 6, 4, 6, -22, 48, -28, 61, 30, 26, 2, -19, 4, -37, -49, -42, 0, -42, -61, -30, -19, -26, 68, 13, -26, -23, 28, -12, -75, -32, 5, 28, -53, -2, -54, -52, -25, -10, 11, 10, 0, 26, 11, 24, 31, 5, 58, -13, 80, 57, -14, 60, -1, 38, -24, 5, 23, 24, -33, -31, -38, 33, 7, 21, -77, 6, 5, -48, -21, -43, -2, 30, -6, 2, 6, 9, 7, 7, 101, 18, -38, 23, -23, 9, 26, 15, -31, -25, 34, -9, -51, -25, 83, -20, 52, 54, -21, 20, 8, 36, 36, 4, 8, 54, -1, 12, 9, 54, 5, -37, 44, 32, 32, 28, -44, 66, 16, -23, -24, -24, 28, -104, -97, -27, -38, -10, 1, -15, 37, -1, -18, -16, 18, -38, 28, -50, -25, -7, 60, 12, -64, -48, -26, -1, 6, -27, 4, -16, -24, 31, 16, 47, -21, -19, -3, -20, -2, 41, 15, -3, -12, 18, 78, 14, -78, 11, 17, 16, -2, 7, -21, 24, -4, 51, -14, 5, -49, 7, -3, -34, -12, -23, 6, -28, -43, 57, -24, -29, -101, 0, -15, -27, -10, 76, 17, 24, -19, 0, -35, -24, -52, -3, 78, 37, -11, 15, -29, -71, 20, -3, 36, 41, 89, 10, -58, -46, -23, 48, -33, 75, 58, 5, -17, 4, 10, -41, -2, -3, 4, 6, -5, 12, -32, -14, 39, -16, -11, 70, -49, 11, 9, 40, 42, -21, 44, -73, -32, 41, -56, 8, 49, 4, -3, 28, -6, 15, 44, 60, 3, -72, -1, -50, 10, -26, 50, -20, 82, 32, 19, -33, 6, -23, 36, -67, -40, 13, -20, -37, 67, 5, 56, -57, 13, 36, 3, 12, 1, -11, 23, -37, -50, 2, -28, 21, 40, 19, -38, 24, -26, 34, -6, 17, 28, 18, 8, 23, 3, -8, -34, -39, 36, -73, 3, 4, 20, 38, -4, 5, -13, -91, 0, 8, -47, -20, -41, -61, -17, 13, -31, 44, -22, -7, 9, 3, 37, 2, -65, -32, -4, 19, 60, 9, -2, 11, 6, 37, -52, 2, 63, 20, 17 ]
Durand, J. This case has been in this Court once before, and the facts are so fully reported in Stevens v. Pendleton, 83 Mich. 342, that it is not necessary to do more than to state that on December 21, 1886,' the plaintiff and the defendant Pendleton entered into an agreement that, after the completion of certain hotel buildings, the plaintiff was to lease the same to Pendleton for 10 years at a certain rental, which was to be paid quarterly, on the first day of each quarter. The defendant Morton became suretjr that the defendant Pendleton would pay the rent as agreed upon. Afterwards, and on May 1, 1887, a lease was entered into between the plaintiff and the defendant Pendleton; but instead of the rent being made payable in the lease on the first day of each quarter, as was stipulated and agreed upon in the contract first referred to, it was made payable on the last day of each quarter. After this suit was begun, the plaintiff, who claims there was a mistake in the lease in that particular, filed a bill in chancery against the defendant Pendleton to have the lease reformed so as to have it read that the pajments of rent were to be made, as expressed in the original agreement, on th& first, instead of the last, day of each quarter, and a pro confesso decree to that effect was duly made. The defendant Morton was not made a party to that proceeding, nor did he have anything to do with the making of the lease which was thus reformed. Upon the first trial, which was reviewed as above stated, the circuit judge held that the surety was discharged, and directed the jury to find a verdict for the defendants, which action was affirmed here; but, upon a more careful examination of the scope of the testimony, this Court became satisfied that the question of whether the change in the time of payment of rent was agreed upon between the plaintiff and defendant Pendleton, or was the result of a mistake, should have been submitted to the jury, and upon, a rehearing of the case, which is reported in Stevens v. Pendleton, 85 Mich. 137, it was so ruled, and the case-; was remanded for a new trial, which has resulted in a. verdict and judgment in favor of the plaintiff as against-the defendant Pendleton, and of no cause of action as against the defendant Morton. The plaintiff1 claims error, and insists that the chancery decree, reforming the lease so as to make it correspond with the original agreement in respect to the time when payments of rent should be made, is binding upon the defendant Morton, although he was not made a party to that suit, and that he is not entitled to show in this suit that the change was the result of an agreement, instead of a mistake. The same principle was contended for on the first argument, but this Court then held that, as between the parties to the chancery suit, the decree is conclusive. that the change as to the time of the payment of rent was made by mistake/ but that the same rule does not apply to the surety, who, if made a party, could have shown in the chancery suit, and may show in the suit of law, that the change was intentionally made, and he thereby discharged from liability. Upon the rehearing, it was again held that the proceedings to reform the lease were not conclusive as against the defendant Morton; and the case was remanded, so that the contention in reference to whether the change in the lease was made by mistake, or. intentionally, could be submitted to the determination of a jury. ' .We see no reason to change the rule as laid down. The plaintiff cannot be heard to say that, because of a litigation between himself and the defendant Pendleton, he can conclusively bind the defendant Morton, who was not a party to that suit, and had no opportunity to be heard in it, and thereby preclude him from his day in court to contest that or any other fact in regard to his liability as a surety upon the agreement signed by him. Upon the last trial of this case, evidence was introduced by both parties upon the subject in controversy, some of which tended to show that the change was the result of a mistake, and- some of which tended to show that it was not, but that, on the contrary, it was agreed upon between hhe plaintiff and the defendant Pendleton. That some of Uie testimony is peculiar or unsatisfactory may be true, hut that is a subject to be addressed to and considered by ■.the jury, who are the sole judges of the weight to be ¡given to the testimony, and over which this Court has no ■control. The verdict of the jury upon a simple question of fact will not be disturbed by a court of review where there is some evidence upon which the jury can base their finding, even though that evidence may not satisfy the reviewing court of the justice of the verdict. Upon the trial, objection, was made by plaintiff’s counsel to the introduction of plaintiff’s .bill of particulars in evidence, but which was permitted, notwithstanding the objection. We have examined the bill of particulars, and we cannot discover how or in what way its introduction in ■evidence could in any manner have influenced the jury against the plaintiff; and inasmuch as the defendants’ ■counsel had the right to read and comment upon it to the jury, or in their presence, we are satisfied that, if the .admission of it in evidence was error, it was error without prejudice. Plaintiff’s counsel also objected to certain questions propounded to plaintiff’s witness Woodruff on his cross-examination, in reference to the time when rent was first collected under the lease, and also in relation to what he had sworn to on the first trial. Objection was also made to certain questions put to defendants’ witness Pendleton, in reference to what the agreement was at the time the lease was executed as to when the rent was to be payable, and also in reference to when rent was first demanded. We think the admission of this testimony was proper. It was all germane to the subject in controversy, and the answers might have tended to throw more light upon the transaction than could have been obtained in any other way. Neither do we think there is error of which the plaintiff can complain in the charge to the jury, except in the matter referred to later on. While a party is ordinarily entitled to have his proper requests given as proposed by him, or nearly so, yet, if they are substantially given in the general charge, even though in somewhat different language, error cannot be properly claimed; and, with the exception referred to, we think the charge to the jury was quite as favorable to the plaintiff as he had a right to claim. The court charged that the chancery decree was •conclusive upon the defendant Pendleton, and that the plaintiff was entitled to recover as against him, at all events. As to the defendant Morton, the court'charged the jury as follows: “So far as Mr. Morton .is concerned, the question for your determination in this case is whether there was a^ change in the terms of the lease, for which he had perhaps already become surety. If you find in this case that, at the time of the execution of this lease in question, the terms were known to both parties, and were what both parties intended at that time, then your verdict would be for defendant Morton; but if you find that it was contemplated to be executed with reference to the preliminary agreement, and both parties in fact supposed it corresponded at that time to the terms of the preliminary agreement, or if you find that, under a mistake of fact on the part of Oapt. Stevens, he supposed at that time that it did in fact correspond to the terms, and that the first of the quarter had been inserted in the lease for the payment of the rent instead of the last of the quarter, why then, and in that case, there would be that mistake of fact which would authorize a court of equity to reform the lease; and your verdict, in that case, would be for the plaintiff, as against both defendants.” The charge upon the points raised was as favorable as the plaintiff was entitled to, and the fact that he was permitted to have a verdict as against the defendant Pendleton is not a matter of which the plaintiff can complain; and the defendant Pendleton, who is the only one entitled to raise that question, does not complain. The circuit judge was, however, in error in this: The court was requested to instruct the jury that the plaintiff had proved a prima facie case against defendant Morton in respect of the change of the date of payment in the lease, and that the burden of proof was upon him to show that Pendleton and Stevens mutually intended to make the rent payable on the last, instead of the first, day of the quarter. The court refused this request, and in his oral charge said nothing whatever as to the burden of proof. Jurors generally understand that the burden of proof is upon the. plaintiff in all cases, and it is certainly of importance, generally, that they be instructed when, and under what circumstances, the burden shifts to the defendant. For this error the judgment is reversed, with costs, and a new trial granted. The other Justices concurred.
[ 10, 39, 13, -35, -37, -45, 3, -28, -6, 52, 14, 9, 25, -54, 12, -33, 19, -3, -12, 8, 1, 28, -41, -25, 35, 43, 62, -43, -37, 19, 20, 4, -31, 34, -25, 7, 65, 3, -2, -26, 27, 9, 12, -14, 17, 27, -22, -6, 42, -39, 4, -50, 5, 4, -29, -11, -51, 17, -11, 28, -3, -16, -27, -47, 27, -29, 37, 3, 9, -66, -7, -10, -23, 1, 3, -73, -5, 8, -44, -14, 19, -39, -2, 11, -35, 3, 3, -37, 26, -19, -25, 30, 13, 4, -12, 0, 0, 11, 38, -27, -30, -25, -18, 3, 56, -7, -19, -10, -25, 31, 32, 9, 29, 1, -3, -8, -11, -22, -24, -10, 42, -8, 15, 8, -33, -35, -18, 12, -13, -24, -7, 3, -57, -8, 27, 11, 19, -4, -8, -27, 64, 19, 8, -10, 58, 45, -17, -41, 10, -2, -22, 47, 22, 15, 7, 3, -4, -5, -11, -24, 55, 0, -15, -49, -4, 6, -22, -15, -5, 15, 44, -27, -4, -36, 53, 30, 26, -18, -39, -18, -49, -3, -8, -60, 0, -1, -24, -23, -2, -10, -2, -16, -42, -5, 0, 3, 38, -28, -28, 12, -57, -21, -20, 16, -28, -5, -10, 17, 50, 14, 1, -9, -54, -20, 5, 14, 12, -8, -31, 24, -41, 12, -23, 6, -53, -48, 15, -26, 38, 25, -34, -6, -35, -14, 37, -8, -2, 9, -25, -4, 14, 4, -39, 9, -6, 24, -19, -16, 17, -6, -16, -14, -27, 14, -6, -19, 41, 14, -27, -12, -14, 22, -3, -27, -6, -27, -11, -11, 4, 27, 1, 0, 42, 25, 1, -23, -56, -33, -1, -10, -16, -12, -23, 69, -38, -53, -10, 33, -6, 39, -17, -11, -21, -23, 54, 0, 17, 20, -24, 19, -9, -8, 9, 23, 20, 24, -40, 7, -10, -44, -26, 19, 11, -40, 14, 21, -4, 4, 0, -24, 6, -36, 7, 0, 21, 13, 61, -11, -29, -3, -27, -32, 7, 42, -17, -2, 39, -18, -1, -15, 52, 5, 8, -22, -3, 32, -14, -82, -45, 7, -21, -30, -58, 9, 15, -51, -21, -5, -25, 14, 27, -1, -2, -34, 3, -4, -51, -20, 96, 41, 54, 37, -25, -5, -30, 13, 15, -3, -56, 65, -30, -32, -53, -49, 28, -47, -62, -39, -31, -25, -35, 13, 18, -6, 12, -1, 31, 1, -24, -13, 22, 19, -6, -66, 15, -24, -32, -4, -14, 35, -10, -8, 17, 3, 2, 38, 16, -33, 17, 11, 2, 11, 9, -20, 1, 0, 30, -4, -61, -7, -20, -19, 38, -7, -22, -12, -44, -25, -61, 0, 13, 43, -73, 22, -9, 28, 23, 77, 51, 13, -4, 22, 26, 17, -3, 31, 25, -14, -9, -10, 72, 1, -20, 94, 14, -37, -22, -6, -14, 24, 2, -68, 44, 83, 3, -7, 3, -15, -1, 47, 7, 25, 18, 61, -36, 3, -24, -52, 5, 71, -9, -15, -21, -1, -16, 13, -7, 23, -14, 51, -62, -6, 28, -36, 3, -31, -5, -32, 9, -16, -9, -6, 61, 35, -10, -30, 46, -15, 4, 35, 31, -24, -2, -6, -46, 38, 42, 3, -25, 24, 9, 14, 11, -64, 15, -10, 1, -13, -5, -25, -20, 17, 16, 49, 26, 27, -40, -37, -13, 0, 23, -17, -23, 23, -22, 57, 10, 22, 30, -19, 12, -8, 17, -6, 24, 14, -14, -34, 19, -14, -46, 9, 37, 32, -68, -33, -38, 10, 7, -24, 17, 18, -11, -20, 4, -19, 7, 32, -16, 48, -11, 29, 23, 0, 53, -21, 32, 40, -10, -4, 9, -31, -7, -27, -17, 15, -13, 51, 16, 0, 25, 1, 13, 15, -17, 22, 23, -10, 35, 17, 8, 39, -19, -3, -8, 18, -39, -13, -14, 16, -44, -53, 8, 9, 6, 65, 50, 2, 38, -6, -13, -2, 7, -12, -31, 35, -39, -4, 31, -46, -33, 2, 55, -13, 32, -43, 42, -44, 33, -18, 9, 37, -41, 11, -11, -20, 23, -33, 14, 23, 55, -1, 46, 17, 33, -13, -26, 10, 25, -17, 9, -27, 10, -41, 0, -25, 2, -9, 45, 29, 3, -53, -14, -29, 16, 61, 90, -8, -21, 48, -12, -28, 27, 22, -7, 17, -28, -31, 5, -41, 36, -51, -10, -29, 31, 35, -37, 33, 2, -12, 2, 19, 25, -44, 2, -3, 0, -38, -35, -22, 4, -11, -25, 17, 10, 24, 22, -9, 10, -15, -5, 16, 2, 59, -13, -24, 21, 16, -29, 11, 37, 13, -2, -11, -9, 18, -31, 14, 14, 6, 9, 47, -26, -7, 2, 28, -5, -60, -7, -8, 12, -5, 88, -26, 27, 11, 51, 10, -15, -14, 12, -13, 0, 19, -46, -39, 56, -21, -17, 29, 2, -74, -11, 14, -4, -22, -14, -10, -18, -8, 12, 22, -28, 26, 16, -17, 7, -18, 5, -23, 10, 2, -22, 7, -5, 27, -3, -11, 15, -6, -1, 1, -18, -14, 76, -21, -18, 14, -31, 3, 2, -53, 21, 11, 78, 40, -1, -20, -32, 7, -9, -49, 28, 54, -55, -3, -3, 36, 17, -11, 1, 14, -15, -15, -31, -20, 5, 0, 54, -4, -12, 9, 15, -27, 11, 1, 43, 14, 14, 8, -7, -22, -16, 36, -13, 57, 17, -29, 24, 9, -6, 0, -35, 36, 29, 61, 32, 4, -3, 52, 27, -8, -9, -10, 14, -30, 17, -20, -10, -33, -25, 3, 30, 13, 24, 5, 0, -35, 6, 17, 36, 6, -93, -17, 0, 12, -73, 40, 23, 1, 39, 0, -28, -2, -3, 0, 0, 33, -13, 29, -1, 20, -5, -4, -1, -26, 19, 17, 11, 4, -9, -21, -19, 7, -46, -11, 22, -28, 29, 18, -67, 62, -9, 19, 31, 5, -20, -12, -57, -64, 7, -6, -1, -11, 52, -6, 27, 22, -29, -56, 12, -8, -20, -10, -21, -2, -15, 29, 4, -11, 38, -53, -12, -15, -7, 44, 15, 3, -28, 11, 44, -7, 15, 36, -10, -26, -24, -26, 4, -2, -1, 22, 2, 35, -30, -53, 47, 41, -48, 5, -54, 7, 12, 33, -30, 60, -64, 20, 38, -38, 60, 14, 44, 12 ]
Grant, J. Ann McCormick filed a claim against the defendant, which was insolvent, and whose estate was in ^the hands of receivers. The receivers contested the claim. Two trials were had. Upon the first, Mrs. McCormick was a' witness in her own behalf. A new trial was granted, and before the second trial she died. Her testimony was received in evidence upon the second trial. The claim is based upon three promissory notes executed by M. Engelmann to the order of Mrs. McCormick, and aggregating $2,700. The court directed a verdict for the defendant. At the time these notes were given, Engelmann lived in Manistee, and was reputed to be a man of great wealth-Upon the face of the notes, there is nothing to connect the defendant with them. Engelmann died before two of the notes became due, and his estate proved to be insolvent. Mrs. McCormick presented these notes in the probate court against his estate, and they were allowed. Failing to obtain her money against that estate, she presented a claim against the company. Mr. Engelmann was president of the company. It it apparent from this record that she loaned the money to Mr. Engelmann, and, at the time the loans were made, she did not understand that she was loaning it to the defendant. It is now sought to make the defendant liable on the ground that the money was received by it, and to show this by certain entries upon its books. The money, in the first instance, was loaned upon the credit of Mr. Engelmann. The defendant's liability, if any, was therefore collateral, and its promise must be evidenced in writing, signed by it. How. Stat. § 6185; Ruppe v. Peterson, 67 Mich. 437, and authorities there cited. A writing which is relied upon to take the promise out of the statute must contain all the terms of the contract. Such promise cannot rest partly in parol and partly in writing. Hall v. Soule, 11 Mich. 494; Ayres v. Gallup, 44 Id. 13. Under these authorities, the evidence of Mrs. McCormick as to conversations between Mr. Engelmann and herself, or between herself and any other officer of the corporation, for the purpose of connecting the entries upon .defendant's books with the notes, was incompetent. Her conversation with Engelmann was also incompetent, under 3 How. Stat. § 7545, since he was an officer of the corporation. Mr. Engelmann was a member of several other firms, and was also engaged in an extensive business of his. own. He borrowed money from the defendant to a large amount, and paid moneys to it from time to time. An account of these receipts and payments by him was kept upon defendant's books under the head of “ M. Engelmann, General." At his death the amount due the company on this account was $80,000. An account wa$ also kept on the defendant's books under the head of “ M. Englemann." Upon this account were entered his family expenses, and similar personal items. Mr. Engelmann also kept a private cash book and journal, upon which were entered up these notes as those for which he was personally liable. The entries under the head of “M. Engelmann, General,” which are relied upon by the plaintiff, are as follows: “ M. Engelmann, General. His note to Mrs. Ann McCormick 2-5, one year, 7 per cent.; taken up his demand note 10th, 2nd, $600; currency from her, first, $400; total, $1,000.” “ M. Engelmann, General. Received from Mrs. Ann McCormick, against his bills payable, No. 579, first, 29, six months, 7 per cent.” ffM. Engelmann, General. Bill payable 799, 7-9, one year from date, Mrs. McCormick, first, $700.” The items received upon these notes appear upon defendant's cash account to the credit of Mr. Engelmann. These entries do not show that Mr. Engelmann borrowed this money as the agent of the defendant, and for its benefit. The natural inference is that he borrowed it on his own account, and placed it to his credit on the books of defendant, to which he was largely indebted. The defendant was not, therefore, an undisclosed principal. As already stated, parol evidence was incompetent to show that the notes were in fact the notes of the company. Insurance Co. v. Covell, 8 Metc. 442; Fuller v. Hooper, 3 Gray, 334; Jones v. Phelps, 5 Mich. 218; Kelsey v. Chamberlain, 47 Id. 241; Finan v. Babcock, 58 Id. 301; Wisconsin, etc., Bank v. Filer, 83 Id. 496. There is nothing in the case on which to apply the doctrine of estoppel. The benefit to the defendant was not received directly from Mrs. McCormick, but from Engelmann, who had loaned the money from her. By the transaction, defendant became Engelmann's debtor, as to these moneys, and became in no sense her debtor. Judgment affirmed. The other Justices concurred. See Brennan v. Railroad Co., 93 Mich. 156.
[ 9, -26, -7, -23, -28, 6, 46, 4, 48, 5, 29, -39, 66, -21, -48, -19, -4, -52, 40, -39, 22, -17, -26, 12, -48, 12, 43, -14, 53, -28, 21, 0, -30, -24, 9, -29, 69, -1, 37, -26, 15, -31, 32, 43, -6, 51, -16, -63, 19, -39, 40, 14, -14, -9, 7, -4, 34, -57, -54, -26, -20, -90, 66, -24, 5, -31, 46, 8, 3, 8, -10, 17, 42, -1, -18, -52, 28, 12, -96, 0, 34, -39, 7, 17, -20, -24, -19, -47, 41, 15, 15, 1, -29, -4, -15, -32, -5, 33, -15, 36, 12, 12, 4, 26, -6, 15, 7, -24, -4, -11, -7, -22, 33, 21, -30, -6, -58, 17, -29, 16, 6, -17, -10, -58, -2, 62, -28, 30, 4, 27, 11, -26, -50, 84, -64, -23, -17, -38, 13, 0, -32, -2, -20, -27, 19, 0, -20, -46, -35, -23, -72, 2, 30, -2, 55, -16, 47, -50, 31, -24, 73, 49, 27, -19, -49, -9, 33, -20, 35, -13, 10, 26, -62, -34, 27, 11, 28, -52, -12, -31, -11, 39, 1, -21, 5, -26, 7, -13, -5, 20, -18, -15, 1, 35, -36, 30, -10, -10, 28, 20, -23, -41, -9, 3, 25, 28, -22, -46, -18, -27, 22, 66, -13, -18, -43, -8, -14, -53, -22, -15, -2, 7, 11, 1, -82, -23, -47, -74, -84, -27, -23, -36, -61, 8, -14, 16, 35, 14, 44, -5, 8, -14, 1, -7, 13, -15, -38, -35, -11, 18, -45, 11, -42, 11, -5, -10, -3, 36, 6, -22, -5, 38, -36, 6, -9, 7, -19, 36, -5, 35, 0, -80, 5, 20, 14, -19, 20, -9, -62, -31, 27, -15, -99, -23, 27, 20, -47, 31, -33, 65, 78, 8, 15, -24, 55, 27, -12, -4, -16, 12, -8, 1, -3, -16, -3, 18, -11, -13, -38, -26, 25, 35, 9, -46, 68, 26, 0, -31, 43, -9, 59, -1, -30, -11, 27, -20, -8, -52, 12, 56, -63, 31, 10, -20, 10, -30, -9, 6, -26, -22, -13, -9, 6, 5, -20, 0, 21, -36, -12, 20, 22, -20, 32, 0, 19, 35, 65, -8, -22, 16, 18, -1, 6, 10, 25, -15, 3, -45, 36, 10, 17, 51, -23, -33, -30, -20, -28, -4, -6, 26, 13, 16, 27, 24, 6, -27, -19, 11, -13, 46, -49, 11, -23, 21, 2, -25, 8, 23, -55, -21, 28, 31, 39, -51, -21, -15, -18, -1, 29, 51, 5, 5, 19, -45, 27, -12, 69, -18, 46, -7, 11, 7, -2, -31, 10, -37, 44, 16, 14, -26, -3, 54, 34, 2, 39, -27, -35, -27, -35, 32, 29, 7, -7, 30, 9, 37, -26, -44, 3, -5, 28, 17, 2, 30, -17, 15, 39, 23, 15, -10, 51, -4, 28, 58, 37, 31, 30, 3, 28, 22, -3, -19, -24, 28, 7, 3, -7, 1, 5, 25, 6, 66, 13, 15, -16, -11, 5, -92, -24, -37, 30, -2, -34, -2, -6, -40, -17, -14, 6, 21, -17, -50, 21, 68, 11, 1, 13, -39, 20, 17, -4, -31, 30, 46, -21, 35, 8, 22, -3, 46, 27, 24, -49, 9, -29, 8, 52, 53, 11, 56, 14, 3, 30, -18, 44, -7, 10, 7, -26, 2, 0, 27, -12, 47, -36, 18, 11, -6, 9, -2, -7, -73, 5, 32, -29, 14, 19, -19, 22, -15, -13, 37, -5, -56, 53, -26, 21, 21, 19, -28, -4, 15, 13, -11, -17, -13, 20, -13, -4, 19, -13, 11, -26, -78, 12, 30, 12, 12, -5, 17, 3, 2, -28, 5, 9, -43, 4, -12, 51, 22, -11, -19, -36, -18, -13, -48, 8, -13, 55, -68, -1, -9, -11, 6, -23, -10, 3, -55, -24, 29, 49, 26, 62, -47, -20, 29, 7, -12, -11, 22, 11, -40, -43, 36, -50, 59, -35, -10, 9, -33, -20, 19, -9, 0, 3, -32, 9, -31, 2, -14, -5, 0, 43, -46, -11, -30, 21, 15, -8, 16, 8, -22, -16, -18, 15, -11, 24, -14, 16, 8, -7, -8, -4, -14, -47, 31, -3, 7, 5, 24, -15, 5, 24, 39, -13, -37, -32, 17, -51, 16, -18, -14, 3, 15, -41, -56, 13, 35, -18, -26, 37, -11, -22, 50, -30, -3, -28, 25, -6, -7, 8, -15, 7, 7, -51, 2, 15, 12, 22, -28, -1, -60, 32, 5, -55, -33, 25, 0, -1, 9, 32, -27, -52, 81, 1, 11, 13, -24, -31, 36, 8, 49, -9, 35, -14, -33, -3, 39, 13, -6, 11, 60, 29, -2, -19, 29, -9, -27, 13, -15, -26, 2, -14, -41, 8, 31, 19, -25, 1, -8, -32, 20, -8, 11, -6, -14, -2, -7, 36, 1, 19, -13, -5, 28, 16, 3, 8, -24, 0, 39, -37, -3, -15, -12, -66, -15, 27, -1, 28, -20, -1, -7, -17, 19, -20, 10, -19, -3, 5, 9, -13, -16, -13, -19, -21, 55, -51, -62, -14, -8, -13, 28, 38, 18, -11, 24, -24, -71, -65, 2, -18, -25, -19, -9, 12, 25, 0, 1, -7, -12, 12, -57, -37, 6, 9, -26, 5, 33, 7, -37, 27, 3, -22, -17, -11, -15, -38, 10, 7, 14, -10, 26, -53, -19, 23, -22, 6, -12, 12, -14, 4, -2, -18, -4, 9, 8, -7, -44, 17, -4, -1, 50, 22, 8, -12, -22, 39, 8, -1, 18, 12, -19, -12, 10, 0, -48, 47, -23, 30, 17, -4, -42, 18, -21, 61, 8, -10, 39, 46, 30, 12, -65, 41, -28, -34, 17, -1, 43, 8, 8, -2, -5, 17, 19, 20, 2, 24, 23, -31, 28, -5, -24, -16, 18, 11, 21, -20, -65, 25, -2, 27, -66, 33, 11, 33, -12, 37, -20, -23, 32, 0, 46, 21, 84, -27, 22, -30, -3, -17, -16, 0, 19, -28, 52, 40, 9, -4, 1, 26, 9, -1, 8, -31, -22, -41, 25, 59, -33, -14, -65, 41, -26, -10, 19, 48, 39, -7, 16, 17, 8, 17, 6, -18, 30, 41, 3, 32, -3, 40, 5, 9, -49, -7, 49, 23, -55, -1, 1, -24, 12, -33, -18, 36, -1, 17, 36, 11, -25, -49, -2, 4, -44, 46, 41 ]
Montgomery, J. The complainant filed a bill in the Wayne circuit, in chancery, to have certain lands in the city of Detroit decreed to have been held in trust by Baumeister for her, and to enforce the trust. Since the filing of the bill Baumeister has died, and the case proceeds against his administrator and codefendant, rvho was Baumeister’s grantee. The histoiy of the legal title is as follows: On September 1, 1873, Henry Benz deeded the land to his wife, Emma Benz, the complainant. On August 10, 1874, complainant deeded the same to John Winterhalter:'-1 January 11, 1875, John Winterhalter deeded the land to John Baumeister, subject to all mortgages. There were at that time three mortgages on the land, — one to William Krenning, for $2,500; one to the Detroit Building & Savings Association, for $1,000; and one to Henry Wineman, for $1,500, upon which it would appear, however, that there was but $480 due at the time of the transfer to Baumeister. The consideration named in the deed frojn complainant to Winter-halter was $6,000, and the value of the property at this time is not otherwise shown. The answer denies that the conveyance was made to Baumeister charged with any trust. The complainant seeks to establish the trust by parol testimony. Rosa Haag, a daughter of complainant, testifies: “ Mother had a conversation with Winterhalter in the forenoon. In the afternoon Mr. Baumeister came over to the house, and said, ‘Well, Emma, I will take the papers, and do you the favor; and I will have a new deed made out, and deed it back to you, whenever you want it.’ Mother said, when she handed him the papers: ‘Here is everything in this envelope that belongs to the property; * * * now, you see that I get them all back like this.’ And he said: ‘I will; and I will have a new deed made out, and deed it back to you, whenever you want it.’” The complainant also called Frederick Haag as a witness, who testified that in 1887 he had a conversation with Baumeister, in which Baumeister admitted to him, in substance, that he held the property in trust for complainant, and his only claim against it was for moneys that he had paid out to discharge the mortgages and tax liens. This witness further testified that he subsequently wrote Mr. Baumeister, and received a letter in reply, which letter he was unable to produce, but stated the contents, in answer to the question, “What did he write?” as follows: “ He wrote me that promise was all right, but he didn’t know all the matters in the case. He says, ‘I lost considerable by Renz,’ and something to the effect that he got even with him now. That is it.” The circuit judge held that under this testimony the complainant was not entitled to the relief prayed, and dismissed the bill. Complainant appeals. How. Stat. § 6179, provides that— “No estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered, or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering, or declaring the same, or by some person thereunto by him lawfully authorized by writing.” Unless we ignore the express provisions of this statute, we are compelled to hold that the conclusion of the circuit judge was correct. It may be conceded, as contended by complainant, that the declaration of trust need not be contained in the conveyance to the trustee, and that any form of instrument, whether a letter addressed to a third person or the answer of the alleged trustee in a chancery proceeding (Patton v. Chamberlain, 44 Mich. 5), will be sufficient to answer the requirements of the statute, and that there is no prescribed form of words in which the declaration must be made, in order to make it valid. Ellis v. Secor, 31 Mich. 185. But the declaration in writing must contain the substantial terms of the trust, or at least sufficient to identify the subject-matter by writing; otherwise, the provisions of the statute would be rendered nugatory. The rule is well stated in Perry on Trusts (chapter 3, § 83): “The objects and nature of the trust must always appear from such writings with sufficient certainty, and also their connection with the subject-matter of the trust. Indeed, courts require demonstration on the latter point; and the trust will not be executed if the precise nature of it, and the particular persons' who are to take as cestuis que trusient, and the proportions in which they are to take, cannot be ascertained. When all these particulars properly appear from writings signed by the party, the trust will be executed.” And again, in Browne on Statute of Frauds (chapter 7, § 108), it is said: “The words used * * * must distinctly relate to the subject-matter, and must serve to show the court that there is a trust, and what that trust is.” See, also, Gault v. Stormont, 51 Mich. 636. The decree will be affirmed, with costs. McGrath, C. J., Durand and Grant, JJ., concurred with Montgomery, J.
[ 26, 58, 34, -18, 12, 12, 11, 51, 6, -12, 7, -16, 4, 15, 19, 23, 25, -7, -16, -37, 8, -56, -55, -11, -9, 45, 47, -74, -17, -32, 27, -8, -31, 52, 19, -37, 9, -69, 47, -33, -29, -12, 7, 8, 23, 31, 2, 13, 16, -59, -21, 0, 31, -3, 2, -65, -46, 7, -8, -5, -6, -67, 25, -4, 2, 35, 48, 0, 23, -51, -19, -6, 17, -22, -15, -38, 17, -26, -34, -19, 0, -24, 9, 19, 21, -40, -14, 17, -27, -1, -4, 1, -14, 43, 26, 16, 0, 58, 7, 42, 9, 4, 2, 51, -13, -8, 17, 18, 17, 15, -13, -24, 43, -1, -31, -11, -5, -35, 9, 0, 12, -52, 10, -6, -2, 46, -26, 0, 3, -16, 19, -37, -20, -27, -29, -51, -23, -35, -40, 25, 37, -8, 7, -66, -13, 6, -19, -51, 8, -34, -38, 38, 30, 15, 13, -51, 42, -35, 34, -6, 32, 2, -2, -22, -51, 5, 63, 11, 30, 2, -6, 19, -14, -26, 45, -82, 11, 24, -40, -36, 36, -1, 12, -8, 39, -49, 17, -26, 3, -43, 12, -6, 14, 45, -25, 37, -14, -27, 24, 4, -33, -18, -44, 45, -23, -20, 12, -37, 1, 2, -10, 24, 24, -3, 22, -19, -19, -35, -22, 8, 43, -14, -2, 42, -17, -15, -1, -50, 12, -7, 3, -14, -17, 17, -34, 29, 41, 26, -11, 24, -1, 31, -1, 13, -17, 3, -4, -4, 12, 12, -60, -28, -31, -12, -7, 7, -21, -35, 15, -18, -1, 2, 24, 31, 58, -68, -1, -8, 18, 20, 24, -13, -2, 8, -49, -43, 16, 0, 6, 40, 3, -41, 7, 38, 49, 38, -11, 3, -39, -20, -11, -12, 14, 5, -15, 42, -19, -22, 8, -13, -5, 12, 6, 10, 16, -38, -8, 16, 35, 29, 26, 9, 19, 58, 29, 53, 40, -11, 4, 1, 49, -14, -19, 5, -23, 6, 2, -2, -19, 28, 11, 1, 7, 10, -23, -5, 19, 13, -6, -62, 25, 25, 50, -12, 10, -5, 13, 20, -38, 1, -13, 6, -22, -16, -30, 39, 35, 6, 4, 51, 15, 53, 30, -24, -28, -42, -69, -28, 30, 19, -36, 33, -57, 54, -16, 21, -37, -22, 26, 14, -23, -7, -35, 88, 46, -11, -37, -10, 9, 36, -8, 28, -6, 41, 5, -75, 0, 3, -93, -8, -3, 45, -14, 69, -34, -6, 32, 18, 1, 37, 31, -2, 60, -26, 3, -18, 8, -11, 22, 29, 0, -10, -9, -24, 7, -32, 75, 16, 32, 23, -23, 36, 23, 38, 53, -32, -27, -40, -43, 25, 41, 0, 39, 44, 8, 15, -43, -30, 37, 12, 24, 56, -31, 9, 8, 7, 76, 37, 0, -2, 3, -40, -7, -20, -17, -3, 14, 19, -22, 69, 22, 2, 1, -30, -9, 21, 16, -21, 8, 44, -11, -12, 17, 14, -11, -15, -18, -42, -46, 0, 61, 9, -6, 43, 18, 8, -55, -25, 13, 2, 38, 25, 25, 39, 13, 13, 7, -35, 23, 26, -4, -54, -29, 40, 1, 73, 28, -44, 55, 6, 44, -25, -33, -13, 33, 4, 61, 46, 12, 3, -29, -36, -50, -26, -8, -20, 20, 45, -7, 1, -29, -5, 10, -15, -23, 26, -18, -12, -2, -23, -36, -50, 3, -4, -15, -10, 26, -32, 9, 15, 10, 34, 11, -62, 5, -39, 35, -5, -38, -8, -40, -15, 29, -63, -39, -23, -15, -15, -8, -11, -47, -40, 19, -32, 29, 50, 3, -11, -6, 43, -19, 30, -41, 4, -39, -7, 41, 38, 52, 16, -21, -47, -19, -9, -23, -28, -29, 10, 0, -43, -29, -26, 24, 9, -24, 55, -24, -36, 20, 48, 0, -17, 45, -3, 21, -74, 22, -35, -39, 67, -39, -31, 31, 46, -1, 3, 0, 5, 9, -16, -12, 3, -52, -3, -8, 35, -21, 12, -30, -63, 7, 13, 25, 0, 30, -22, 38, -32, 8, 2, 18, 4, -29, 19, 20, -37, 59, 0, -3, -35, 18, -34, 3, 14, -36, 17, -42, 39, 42, 41, -24, 27, 6, 47, -16, -17, -12, 1, -17, 22, 1, -25, 16, 53, -13, 14, -5, 6, 18, -14, 31, -47, 22, 18, -13, 1, 13, 8, -43, -41, 31, 34, -14, -26, 0, 33, 39, -11, 12, -12, -20, -28, -2, -4, -15, -26, -33, 6, -22, 19, 29, -9, 16, -24, -14, 29, 7, -6, -2, -24, -4, 14, -20, -28, 22, -63, -17, 19, -17, -16, 18, 4, 5, 60, 26, -25, -17, -31, -3, 30, -14, 63, -35, -39, 44, -10, -23, -12, 0, -45, -20, 30, -43, 2, 18, -21, 30, -40, 77, -60, 5, -17, -7, -8, 34, 23, 42, 34, 18, -3, -11, -2, -21, -4, -7, 6, 0, -30, 21, -31, -4, -17, -6, 30, 37, -24, -33, 6, -45, 29, 14, 15, 10, -40, -25, -30, 25, 62, 4, -10, -22, 20, 36, -22, -36, 22, -28, 5, -58, 18, 16, -53, 24, 41, 7, -37, 20, 14, 30, -31, 7, -29, -18, 68, -20, -29, 12, 5, -35, 21, -41, 27, -23, -20, 4, -16, -17, 6, -45, -8, -10, 32, -34, -11, 13, -46, -9, -22, -2, 13, -4, 40, -64, 19, 45, -8, 37, 3, 20, 28, -36, 8, -13, -18, -45, 53, 20, -15, -71, 7, -7, -14, -32, -15, -39, -12, -12, -27, 40, 9, -21, -13, -41, -19, -23, 27, 11, 30, 30, 6, -21, -62, -12, -15, -24, 15, -24, 1, 1, 3, 9, -45, -23, 8, -4, -26, -23, 40, -5, 26, -17, 27, -59, -22, 30, -44, 4, -31, 18, -8, 35, -17, -39, 32, 0, 48, 61, -16, -15, 15, -18, 17, 51, 50, 5, -34, -30, -15, -57, 0, 40, -12, 4, -18, 42, -14, -2, 0, 16, -6, -27, 7, -34, 18, -29, 21, 1, -7, -8, -21, 23, 21, 2, 55, 36, 0, 44, -16, -58, -55, 23, 9, -6, 1, -11, -32, 25, 31, -15, 6, 21, -23, 23, -12, 46, -35, 11, 2, 16, -23, -48, -11, 19, 53, -54, 22, -34, -15, 72, 3, 5, -33, 14, 47 ]
Quinn, J. This action attacks defendants’ attempts to collect a $350,000 judgment against plaintiff. The judgment was entered in Wayne County Circuit Court May 3, 1974, and it was affirmed on appeal, National Pharmaceutical Services, Inc v Harrison Community Hospital, 67 Mich App 286; 241 NW2d 76 (1976). Plaintiffs complaint and amended complaint alleged that defendants caused writs of garnishment to issue contrary to court rule and froze plaintiffs bank accounts at Detroit Bank and Trust which caused plaintiff damage. Plaintiff further alleged that the writs of garnishment were issued in violation of an agreement between plaintiff and National Pharmaceutical Services, Inc., and were a malicious abuse of process. Plaintiff sought injunctive relief and damages. Prior to answering and on March 5, 1976, defendants moved to change venue improperly laid pursuant to GCR 1963, 404. The motion was based on MCLA 600.1621, 600.1625; MSA 27A.1621, 27A.1625. Plaintiff contended that venue was properly laid under MCLA 600.1627; MSA 27A.1627 and cited Davis v Frankenlust Twp, 118 Mich 494; 76 NW 1045 (1898). Defendants’ motion was denied as was their motion for reconsideration and they appeal on leave granted. Was venue properly laid in Macomb County? The record is clear that defendants are established in Wayne County and that is the proper county of venue under MCLA 600.1621, 600.1625; MSA 27A.1621, 27A.1625, unless MCLA 600.1627; MSA 27A.1627 is applicable. That section of the statute reads in part: " * * * the county in which all or a part of the cause of action arose is a proper county in which to commence and try the action.” Did any part of plaintiffs cause of action arise in Macomb County? Although jDavis, supra, dealt with a prior statute, we find it instructive and as not supporting plaintiffs position. There, ditching in Bay County caused flooding on plaintiffs land in Saginaw County. At 118 Mich 494, 496, the Court said, "What is the fact in this case which gives complainant a right to maintain this proceeding, if he has such a right? It is manifestly a trespass to his lands by causing to come upon them water in unusual quantities, to his injury. That trespass does not occur until the water reaches his land. It is true, some of the agencies which caused this result are set in motion some distance away from his land, and in the adjoining county. These acts would have constituted no cause of complaint had they not resulted in a trespass, and the act which constituted the trespass was the arrival and the spreading of the water upon the land of complainant in unusual quantities.” The wrong was the trespass which occurred in Saginaw County and that determined where the cause of action arose. In the case at bar, the wrong, if any, was garnishment in Wayne County and the incidental damages that occurred in Macomb County were not part of plaintiffs cause of action, except as elements of damage. Venue in Macomb County was improperly laid, and it was error not to grant defendants’ request for change of venue. Having reached this conclusion, it is not necessary to deal with defendants’ other issue. Reversed and remanded for entry of an order changing venue to Wayne County with costs to defendants. Bashara, P. J., concurred. Amendatory 1976 PA 375 was not in effect on March 5, 1976.
[ -64, 29, 35, -18, -16, 12, 42, -1, -59, 46, -18, 2, 5, 56, 10, -22, -17, -24, 36, -1, -11, -26, 12, 22, -3, 38, 43, -5, 13, -59, -49, -16, -25, 16, -4, -46, 6, -19, 5, -26, -55, -36, 11, -4, 9, -4, 0, -2, 27, -3, 5, -17, -43, 32, -67, 13, -24, -15, -46, -39, -30, 22, 24, 10, 42, -10, -37, -12, 23, -16, 6, 36, 27, -24, 29, -20, -39, -23, -7, 7, 1, 9, 33, 19, -39, -19, -17, 2, 38, -16, -4, -9, -51, 12, 38, 50, 3, -20, 28, 27, -23, 27, -24, 5, -7, -3, 28, -57, -58, 2, 38, -2, 16, -52, -6, -28, 34, 0, 43, 27, -1, -26, 22, -14, 12, 24, 35, 17, 12, 27, 81, 0, 13, 6, 19, 4, -5, 3, 45, 4, 31, -41, 4, 2, -13, 12, 48, -21, 34, -43, -90, -3, 14, 34, 4, 50, 15, -4, 6, 34, 23, -5, -25, -3, -40, -45, -36, 24, 24, -3, 70, -47, -6, -32, -34, -18, 10, 12, -16, -12, -22, 2, 14, 10, 11, -32, 26, -60, -11, 1, 62, -15, -15, 46, -21, 79, 15, 12, -30, 2, 23, -69, 2, -32, -17, -10, 22, -52, 1, 25, 6, -31, -6, -22, 23, -51, 31, -20, 10, -4, -17, 25, 29, 23, -24, 1, -7, -17, -6, -20, 4, -50, -3, 34, -26, 5, 28, 40, 18, 34, -26, 32, -5, 11, 3, 27, -19, -22, -15, 37, 2, -36, -17, -26, 0, -5, -18, 8, -65, -1, 23, 46, -84, -9, -40, 21, -26, 4, -32, 10, -36, -7, 33, 28, 1, -35, 20, 19, 42, 27, -11, -2, 3, 14, -6, 46, -12, -20, -6, 51, -47, 33, -20, 7, -13, -23, 11, -60, -12, 19, -57, 29, 33, -22, -20, -13, -1, 3, -20, 0, 43, 2, 3, -27, -9, -35, 1, 3, 29, -11, 20, 10, -10, 20, -35, 0, 62, -45, -31, -4, 12, -2, 20, 22, -4, -13, 29, -44, -42, -36, 21, -2, 8, -12, 3, 27, 13, 6, 6, -23, -26, -8, 16, 17, 12, 1, -24, 12, -53, 27, 6, 9, -21, -45, 17, 0, -7, 6, 31, 75, -43, 2, -7, 21, -39, 5, -12, -32, -12, 20, 13, -70, 30, 21, 31, -11, -49, -25, 9, 30, -17, -41, 38, 52, -2, -21, 14, -7, -22, 51, 23, 38, 32, 50, -24, 25, -11, -45, 13, -8, -44, -51, 9, 52, -49, 23, 29, 11, -24, -44, 14, 24, -2, -83, -22, -29, 31, -9, -4, 45, -7, 32, 27, 32, 28, 68, -70, -6, -16, 16, 30, -5, -10, -38, -3, 5, 24, -26, 23, -16, 34, 8, -32, 9, -24, 38, -12, -10, -6, -69, 14, -64, -24, 24, -17, 1, -17, -5, 21, 21, -35, 38, 1, 22, -33, 8, 19, 24, -2, 17, 48, 12, 3, -26, -8, -41, 9, -3, -17, 14, 28, -18, -14, 52, 38, 9, -17, 28, 0, -10, 4, 5, -8, 0, 56, -18, -22, -7, -35, -13, 7, -7, 25, 47, -18, 29, 25, 5, 28, 24, -11, -15, -35, -21, -15, 15, -22, 31, 5, 13, 33, -27, 1, 7, -41, 16, -18, 30, 6, 11, 31, 42, 3, 17, 3, -11, -54, -44, 3, -27, -18, -42, 20, -1, -4, 0, -42, -47, 33, -24, -17, 4, 25, -8, 56, -7, 14, -49, 39, -24, -33, 50, 40, -52, -2, -9, -38, -18, -34, 19, -26, -23, -1, -32, 1, 11, 6, -36, 6, 12, -7, 10, -11, -11, 19, 10, -12, -20, 64, -5, 37, -42, 1, 6, -8, -42, -24, -24, 22, -12, -9, 10, -21, -14, 5, -4, 4, 0, 7, 64, -31, -16, 60, 50, -19, 3, 29, -23, -34, 10, -18, -3, 50, -46, 4, -4, -37, 31, -17, 25, -42, 23, -32, 9, -35, -50, -27, -50, -29, -12, -16, 60, 11, 27, 20, -24, 34, -29, 35, -25, 0, 24, -34, 22, 8, -6, 79, 12, 50, 20, 13, -13, -9, 28, 18, -39, -17, 49, 17, 17, -56, 50, -13, 1, 24, -41, -19, -2, 10, -1, -24, 19, -1, 0, 5, -4, -27, 53, -36, -20, -15, 34, 2, 17, -24, 26, 0, -46, -8, -11, -42, -15, 2, -6, 19, 67, 10, 30, -30, 43, -46, -36, -34, 0, 18, -43, 10, -10, -20, 18, -7, 4, 22, 29, -21, 20, 14, -14, -58, 37, 43, -51, -1, -42, -10, -23, 11, 43, -22, 15, 21, -25, -12, 43, -18, -38, -14, 6, -12, 39, 6, -3, 7, -2, -5, -4, 38, -37, 47, 17, -28, 48, -14, -29, 10, 12, -2, -43, -24, -37, 10, -14, 47, -25, -31, -73, 2, 21, -35, -8, 14, -17, -19, -58, 2, 16, 60, 16, 26, 0, 12, 0, 11, 14, -12, -22, -55, -39, 43, 18, -10, 17, 65, -30, -14, 6, -55, 36, -70, -21, 27, 56, -27, -6, -7, 1, -2, -1, -3, 0, 11, 17, 28, 4, 14, 26, 81, 15, -7, -3, 17, -40, -19, 15, -43, 68, -14, -20, 0, -11, -16, -26, 2, 19, -13, 40, -8, -31, -8, 13, 33, 11, -5, -33, 20, 32, -23, -45, -34, 37, 7, 22, -85, 47, 34, 12, 12, -28, 21, -51, 8, 32, -11, -4, -38, -6, 18, -21, -57, 47, 60, -1, -23, 10, -13, 3, -18, -23, 19, -52, -12, -19, -19, -18, -53, 0, -1, -41, -36, 33, -31, 0, 5, 17, -28, -9, -33, -20, 12, 49, 19, 13, 11, -41, -60, 19, 18, 42, 0, 7, -20, 16, -56, 34, -18, -15, 40, -33, -24, 25, 18, -10, 19, 0, -23, -12, -2, 1, -20, 19, -3, -39, 29, 26, -38, 26, 12, -22, -14, 32, 6, 56, -42, 4, 4, -5, -12, -6, 13, 22, -23, -11, -12, -10, 21, 12, 38, 15, 10, 4, -4, -75, 21, 7, -3, -2, 0, -43, -13, 8, 27, 17, 30, -12, 2, 37, 10, -30, -50, -36, 51, 30, 45, -3, 61, 18, 20, 34, 44, 21, 15, 23, 54, 15, -37, 31, -14, 34, -46, 30, -12, -17, -30, 59 ]
T. M. Burns, J. The facts of this case are largely undisputed. Plaintiff was arrested and charged with driving under the influence of intoxicating liquors. He refused to submit to a Breathalyzer test. Notice of such refusal was sent to the Secretary of State. In accordance with 1967 PA 253, as amended, the Secretary of State notified plaintiff that if he failed to request a hearing within 14 days his driving privileges would be suspended. On January 14, 1976, plaintiff requested a hearing before the License Appeal Board. Hearing was set for February 4, 1976, within 30 days from receipt of the request as required by statute. MCLA 257.625f; MSA 9.2325(6). On January 22, 1976, the Secretary of State adjourned the hearing due to the decision of Crampton v Department of State, 395 Mich 347; 235 NW2d 352 (1975), in which the Supreme Court ruled that the License Appeal Board was improperly composed. On February 13, 1976, 1976 PA 9 became effective, thereby creating a new hearing board in the place of the License Appeal Board. The Secretary of State thereafter rescheduled plaintiff’s hearing for March 10, 1976. On that date plaintiff appeared with counsel, a hearing was conducted and plaintiffs driving privileges were suspended for 90 days. On March 12, 1976, plaintiff brought this action in the circuit court claiming an appeal from the administrative ruling. Plaintiff asserted that the action of the hearing board was improper because he was not given a hearing within 30 days of requesting such as required by MCLA 257.625f; MSA 9.2325(6), and because the adjournment of the original hearing date was a nullity due to the Crampton decision. On April 2, 1976, the circuit court denied the appeal but ordered the Secretary of State to issue plaintiff an operator’s license limited to use to and from work and during the course of his employment. In this appeal of the circuit court ruling, plaintiff argues that the Secretary of State denied him his right to a timely hearing and that the adjournment of the original hearing was ineffective because not agreed to by a proper quorum of the License Appeal Board. The basic question is whether the actions of the administrative board and the Secretary of State were reasonable and fair. We find that they were. Between the release of Crampton v Department of State, supra, and the effective date of the act creating a new hearing board, it was not possible for the Secretary of State to dispose of plaintiffs case. There was nothing they could have done to avoid postponing the hearing. As it was, plaintiffs hearing was delayed only a brief period of time. Furthermore, plaintiff was not prejudiced by the delay since he retained his driving privileges until the hearing was held. Affirmed. See MCLA 257.625d; MSA 9.2325(4). See MCLA 257.625e; MSA 9.2325(5). See generally, 73 CJS, Public Administrative Bodies and Procedures, § 133, p 459, 2 Am Jur 2d, Administrative Law, § 426, pp 236-237.
[ -6, -10, -8, 1, 47, 34, -41, -53, -46, 54, 31, -35, 21, -80, 35, 38, 12, 83, 30, 30, -5, 8, 67, 51, -32, -34, 24, 16, -41, 19, 12, -23, 7, -3, 18, 0, 9, 16, 33, 23, 10, 12, -62, -4, -28, -67, -8, 25, 2, -2, -9, 6, -28, 3, 63, 18, -18, -34, -42, -11, -52, 42, -12, -13, 60, 33, -23, 0, -26, -22, -33, 57, -50, -5, -4, 20, 41, 33, 13, 14, -2, -1, 8, -11, 12, 20, 9, 4, 13, 47, -12, -56, -55, -50, -33, 19, -30, -41, 36, 9, -48, 4, 17, -1, -21, 35, -8, 33, -34, -36, -24, -13, 58, -37, 34, -35, -22, 36, 28, 18, 31, -22, 48, 1, -6, -28, -8, 39, -24, 22, -16, 35, 34, 11, -3, -15, 12, 35, 36, -14, -7, 7, 36, -47, 22, -41, 27, 37, 10, 3, -6, 39, 50, 22, -27, 28, 91, -60, 45, -36, 6, 33, -17, -19, 5, -11, -17, -9, 11, -14, 32, 10, 30, 36, 10, -32, 40, 26, 0, 7, -46, -2, 46, -32, 6, -18, -9, -27, 41, -15, 1, 6, -22, 0, 46, -5, 28, 42, -4, -33, -38, -13, 0, 49, -4, 5, -14, -1, 18, 0, -29, 3, 14, -18, -23, -38, 49, 3, 32, 0, 6, -4, 52, -18, -58, 13, -2, -1, -2, -17, 16, 24, 56, 61, 8, -3, 0, -55, 58, -26, -31, 38, -22, 13, -13, 6, 2, 3, 9, -2, 39, 2, 19, -49, -13, -50, 16, -8, -17, -9, 22, 30, 2, -10, -26, -12, -9, 65, 12, -27, -23, 33, 30, -28, -39, -20, -25, -37, 54, 12, 7, 22, 10, 31, -60, 34, 12, 15, 10, -2, 19, -42, -98, 43, 11, -26, 23, 60, 4, 34, 1, -16, -6, 22, -1, -47, -55, -9, -17, -8, 16, -58, 55, 7, 43, -33, -12, -53, -14, -69, -24, -24, -16, 3, 6, 0, 21, 12, -9, -54, -14, 14, 2, -35, 17, -7, 17, 44, -2, 26, -26, 8, -32, 26, 11, 17, 20, -20, 23, -25, -12, -10, 45, 3, 18, 22, 22, -97, -29, -18, 10, -23, -31, 77, 47, 15, 11, 11, 22, -16, 47, -1, 7, -11, -28, -39, 45, 75, 7, -3, 4, -45, -6, 3, 3, -5, -17, -11, -27, -44, -2, 9, -56, -23, -48, 6, 6, 22, -5, 17, -15, -17, -27, -11, 18, -48, -5, 31, -8, -5, -21, 24, 29, -2, 22, 17, 27, -35, -30, -40, -32, -35, -7, -32, -6, 1, 13, 61, 25, 53, -11, -27, 16, 17, -58, -7, -7, -49, -21, -2, -46, 0, -46, 11, -8, -8, -9, -6, -4, 30, 19, -8, 36, -16, -40, -3, 9, 38, -33, -6, -3, -55, -38, -1, -17, -5, -53, 1, 28, -22, 6, -11, -8, 8, -68, 2, -12, -23, -23, -17, 7, 12, -43, -8, -32, -48, -1, -1, -22, 30, 5, 39, -40, -27, -25, -14, -46, -12, -46, 7, 6, -19, -38, 53, -5, -22, 35, 5, -35, 14, 0, -1, 21, 45, 8, 2, -17, 7, 19, -31, 20, 39, -22, -1, -43, -66, -27, -77, -2, -22, 44, -37, 44, -58, -2, 22, -17, 13, -45, 26, 9, 19, -21, -9, 9, -14, -7, -28, 0, 34, -2, -9, 7, -51, -23, -20, -31, 13, 9, -29, -23, 8, 30, 31, -15, 31, -35, -25, 21, 1, 0, 50, 35, 12, -13, 39, 26, -39, -21, -4, 37, -20, 9, -25, -39, -36, -1, -24, 31, -47, -46, -20, 24, -4, 49, 3, 10, -14, -3, 2, 8, 17, -2, 32, 18, 52, 11, 36, -8, -34, 22, 21, -17, -48, -80, 1, -20, 54, 6, -3, -34, 44, 19, 10, 26, 6, -5, 11, 6, -3, -6, -45, -22, -21, -10, -38, 4, 2, -7, 32, -12, 11, 6, -5, 25, 21, -7, -19, -50, -10, -28, 41, 13, -32, -29, 11, -13, -50, 19, -17, -13, -42, -9, 32, -44, -5, 6, -17, 33, 48, 27, 15, 61, 10, 50, -44, 6, -6, -31, -17, -40, -47, 41, -25, -2, 21, -34, 36, 31, -6, 7, 26, 35, -12, 0, -47, 0, 8, -19, -16, -18, 27, -34, -11, -50, 38, 8, -20, -8, 44, -61, 49, 18, -10, 51, -17, 68, 0, -16, 20, -44, -14, 19, 17, 6, 23, -17, -13, 15, -72, 22, 8, -1, -28, 14, -35, 21, -8, -14, 11, 22, 17, 27, -3, 1, -40, -11, 0, -30, -13, -16, -51, -25, 37, -5, 51, 9, -14, -15, -22, 40, 25, 28, 9, -30, -25, 7, 2, 45, 40, -10, -42, 28, -55, -11, 37, -2, -11, -26, -23, 0, -9, -44, 5, 55, -26, -8, 24, -16, -24, 39, -49, -9, 1, -8, 71, 32, -34, 11, -2, 10, 5, 19, 14, 29, 30, 6, -11, 30, -8, 71, 12, 19, 26, 24, -22, 24, 37, -63, -24, 47, 5, -27, 22, -5, -16, 40, 25, 35, 8, -28, -13, 40, -6, 37, -40, 41, -33, 27, 0, -32, -6, -1, -58, -35, 20, 9, 1, -19, 16, -19, 17, -54, -11, -38, 11, 4, -50, 27, 18, 26, 43, -58, -45, 0, 14, 6, 19, 12, 32, -1, -40, 28, 24, -46, 14, 2, -4, 2, -12, 15, -75, 34, 22, 59, -66, 14, -35, 27, 5, -1, 34, 20, 15, 0, 14, -32, 42, 5, -66, 3, 41, 24, -9, 5, 1, 1, -18, -48, 15, -32, 7, -8, -38, 53, -12, -105, 7, 46, -28, 44, -7, -19, -3, -28, 8, 5, -25, 6, 22, 8, -32, 19, 17, 29, -8, 21, 11, -13, -6, -17, -16, -24, 19, -18, 8, -21, -5, -14, 16, -11, -3, 12, -13, -16, -6, -33, 7, 11, -9, -48, -8, 46, 35, 23, -6, 10, -26, 9, 96, -31, 19, 52, 43, 12, 57, 1, 5, 0, -13, -21, -22, 8, -16, -7, -5, 8, 6, 6, -4, -17, -2, -6, 26, -24, 39, -61, 5, 10, 26, 66, 5, -25, -3, 74, -21, 2, -21, -7, 33, 27, 43, 9, -43, -21, -20, 25, -7, -2, -24, 7, 28, -16, 16 ]
Per Curiam. Defendant was tried and found guilty of possession of heroin, MCLA 335.341(l)(b); MSA 18.1070(41)(l)(b). He was arrested for this offense subsequent to a random stop and frisk while serving as an inmate in the state prison in Jackson. The prison patrolman who conducted the "routine shakedown” testified that he found a cellophane bag containing heroin on the floor immediately in front of Hicks. The first issue raised by defendant raises the propriety of the stop and seizure, to wit, that certain of his constitutional rights have been violated. This Court has previously addressed the matter of searches and seizures in penal institutions holding that: "Among the substantial and important government interests involved in the maintenance of penal institutions are the 'preservation of internal order and discipline, the maintenance of institutional security against escape or unauthorized entry.’ ” People v Oliver, 63 Mich App 509, 515; 234 NW2d 679 (1975). Consistent with the rationale used in Oliver, supra, where searches prior to and after periods where inmates had visited with outsiders was upheld, we find that searches as were conducted in this case preserve the internal security of penal institutions and could not violate defendant’s reasonable expectations of privacy. Defendant also cites as reversible error the trial judge’s ruling which permitted use of prior convictions for the purpose of impeaching credibility. The use of prior convictions is of course discretionary with the trial judge. People v Jackson, 391 Mich 323; 217 NW2d 22 (1974). A review of the record shows that the trial judge recognized that he had such discretion and exercised it properly. Having examined defendant’s remaining allegation of error pertaining to sentences received and which were blurted out by defendant himself, we find same to be without merit. Affirmed.
[ 31, -18, 32, 22, -54, 8, -54, 2, -37, 42, 18, -28, 19, 25, -6, -3, 22, 50, 30, 2, 20, 2, 0, 47, 1, 0, 14, 70, -24, 56, -3, -4, 65, -59, 17, 1, 33, 4, 15, 7, -6, 4, -27, -37, -73, 3, -9, 42, 31, -34, -32, 24, -3, 38, 13, 33, 42, -44, -23, 46, 1, 6, 16, -12, 9, 14, -24, 16, -20, -47, 29, 0, -59, -55, 39, 11, 49, 31, 8, 1, 3, 24, -8, 4, 22, 15, -26, -74, -9, -10, 10, -21, -43, -54, -30, 23, -18, -47, 36, -23, -46, -13, -39, 17, 36, -29, -17, -15, -30, -6, 33, -7, -9, 20, -21, -65, -11, -11, -16, -11, -4, 36, 24, 11, 5, -40, 20, -16, -39, -9, -33, 58, 22, -22, -38, 11, 11, 6, 32, 0, -44, -15, 53, 20, 32, 28, 33, 28, 23, -25, -18, -17, -35, 32, 8, 34, 0, 5, -65, 38, -39, 15, -14, -15, 28, 9, -42, -2, 3, -22, -4, 27, 25, 32, 35, 8, -28, 61, 27, -52, -20, -13, 3, -6, -21, 27, 33, 4, -62, -14, -32, 36, -20, -29, 26, -2, 13, 47, 14, -31, 8, 14, 16, -11, 12, -19, 20, 4, -2, 21, -19, -13, 17, -36, -62, -43, 20, -30, 1, 27, -24, -13, -21, -39, 43, -8, 9, 20, -17, -9, 24, 6, 27, 5, 2, 11, -12, -11, 54, 27, -6, -6, -43, -30, 53, -51, -19, -2, -41, 20, -16, 37, 16, 44, -25, -48, 47, -42, -3, 15, 22, 17, -23, -21, -30, 52, 6, 52, -40, 39, -35, 18, -33, -42, 4, 17, -7, 37, -44, -32, 25, 22, 46, 4, -35, -23, -10, 43, 38, 8, 70, -36, -66, 24, 25, 24, 46, 22, -23, 19, 9, 26, -19, -54, -5, 12, 37, 4, -17, -20, 89, -5, -49, 29, -52, 4, 1, -4, 17, -10, -61, 8, 8, -62, 38, -29, 40, -69, 51, -46, 7, -7, 9, 10, 27, 25, -13, 15, 2, 47, -23, -24, 1, -44, -8, 17, -31, 52, -28, -28, 65, 67, 45, 36, -22, -19, -34, 13, 29, -41, 32, -12, 11, 10, -12, -47, -25, -11, 14, 3, 35, -71, 8, 11, -14, 28, 68, -44, 65, -4, -14, -25, 23, -37, -8, -43, -40, -24, 11, 22, -42, 35, -24, -33, -48, -11, 61, 37, 61, -34, -42, 13, 38, 24, 21, -40, -32, 18, -10, -7, -61, 32, 18, 43, -31, 7, 1, -7, 15, -75, 14, -16, -16, -24, 17, 11, -28, 69, 0, 17, -17, -37, 16, -62, -56, 0, -40, -65, 39, 0, -16, -14, -42, 7, 18, -1, 0, -7, 13, -23, -5, -26, -16, -48, -38, 44, 46, -88, -49, 1, 15, -31, -25, 6, 20, -14, -59, -77, 29, -39, 0, 7, 20, 9, -24, -5, 11, 50, -3, -21, 36, -10, 1, -7, 8, 0, -23, -30, -5, 26, 2, 0, -4, -37, 15, 40, -4, -12, 22, 48, 3, 14, -51, 4, 46, 4, 12, -6, 23, 48, 10, 15, 11, 28, -13, -57, 11, -30, 27, 28, 48, -39, 36, -23, -31, 60, -11, -27, -65, -10, 44, -7, 4, -58, 47, -21, -39, -12, 1, -48, 26, -2, 14, 25, 13, -27, -4, 9, -37, -14, -9, 52, -28, -4, -11, -17, -12, 31, 2, -20, -50, -31, 57, 30, 12, 35, -15, 25, 90, -1, 16, 40, 1, -17, 30, 35, 15, 41, -17, -13, 42, 58, -26, -14, -21, -27, -36, 3, 18, -49, -12, -45, 29, -14, -17, -12, -49, -16, 0, 12, 33, -5, 0, 35, 86, -23, 32, 3, -38, -6, 29, -2, -5, -18, -52, 38, -22, -23, -5, -13, -46, -31, 0, -21, 21, -2, -55, 31, -37, -32, -5, -30, 3, 10, -4, 4, -21, -10, -28, -49, 22, 13, 4, -6, 40, 5, 6, -28, 23, 8, 20, 24, -3, 38, 28, -29, -32, -2, 38, -24, 0, 52, -50, 49, 3, 41, -15, -92, 2, -31, 5, 25, -15, 31, 36, -20, 13, -58, 7, -66, -55, -34, -2, -3, 24, -13, -13, 1, 23, 24, 18, 38, 8, -13, 32, -6, 33, 11, 1, 5, 2, 41, 1, -12, -26, -5, -22, -16, -25, 20, -35, 17, 3, 7, -36, -29, -45, -14, -38, -9, 11, -36, 10, -4, 11, -5, -11, -1, 0, -78, -13, -51, 0, 26, 18, 10, -18, 36, -9, 23, 2, 13, 8, -17, -14, 17, -4, -8, -31, 83, 54, -6, 22, 20, -32, 29, 33, -26, -48, -46, -18, 39, -28, -10, -13, 18, -32, 2, 48, 16, -14, -32, -6, 18, -76, 24, -26, -4, 14, 17, -22, 48, -24, 12, -14, -6, -25, -16, -8, -9, 0, 14, 6, 6, 32, 57, 12, 9, -25, 10, 41, -4, 16, -33, 4, 21, -21, -23, 0, -16, 25, 9, 30, 26, 38, 27, -14, 3, -10, -17, 45, 15, -25, -12, -37, 31, 25, -43, 43, 0, -8, 48, 24, 8, -8, 28, 4, 25, -4, 7, -6, 11, 42, -6, -35, 66, 2, 6, 12, 69, 23, -5, -48, 27, 8, 55, 18, -9, 39, 4, 19, 15, -3, -38, -11, 33, 26, -31, 13, 40, -28, 32, 53, 29, -82, 3, 7, -8, -37, -27, 4, 13, 52, 43, 67, 12, -49, -44, 23, -37, -26, 25, -61, 12, -40, 32, 43, -7, -1, -12, 5, -15, -21, 43, 34, -9, 20, -34, -6, -39, -4, 22, 5, 0, -52, -1, -65, 23, 51, -66, -29, 54, 60, 27, -15, -6, 8, -32, -8, 13, 1, 5, 18, -9, -19, 0, 58, -4, 31, -2, -31, -45, -60, 80, -46, 62, -7, -21, 0, -28, -12, -22, -34, 10, -52, 23, -14, -9, 0, -39, -49, 3, -31, -15, 9, 33, 27, -41, -49, 12, 11, -32, -25, -14, 70, 1, -23, 22, -18, -32, -52, -71, -21, 5, 12, -15, 1, 59, -21, -4, 51, -11, 2, 37, -23, 10, -27, -16, -12, 17, 20, 3, -14, -6, -38, -9, 6, -10, -85, 24, -8, -38, 27, -45, -23, 36, -25, 12, -70, 71, -19, 17, 27, 24 ]
Hooker, C. J. The claimant was owner of four promissory notes executed by decedent. Appealing from their disallowance by commissioners, he met with defeat in the circuit court, and brings the case here on bill of exceptions. The defense made below was that the notes were given to prevent a prosecution of decedent’s son for embezzlement. The will of the decedent was introduced in evidence on behalf of the defendant, against objection. The only apparent object of the introduction was to get before the jury'the fact that decedent gave his son no share of his estate. This will was executed several years before the transaction in controversy, and might lead to the inference that the son was wayward, and troublesome to his parent. It should not have been admitted. Plaintiff’s sixth request was as follows: “A note given to settle an embezzlement or a shortage of an agent is valid and good, if it was given to settle the indebtedness or shortage, and if there is no agreement to stifle the prosecution for the embezzlement.” "Under the facts of this case, no question of deceit being involved, this was a proper request, and should have been given. In the charge undue prominence seems to have been given to the alleged threats to prosecute if decedent did not give these notes. Such threats were properly admitted as tending to show the giving of the notes upon a promise not to prosecute. But although the court instructed the jury that, “ from all the evidence, you must determine whether the notes were given to settle a criminal prosecution threatened against the son, or whether they were given in settlement of a just claim owing by the son,” etc., the further instruction was given that, “in order to defeat the notes, you must find that they were procured from the defendant by threats or intimidations that, if not given, his son would be prosecuted upon a criminal charge.” And again: “If lie gave tbe notes voluntarily, or relying upon such an arrangement • [i. e. that tbe son should, pay them], it would be immaterial whether threats of prosecution were or were not in fact made. To make the threats material, you must believe that the notes were given because of them.” And again: “ If you believe that the notes were obtained by such threats of criminal prosecution, then the burden of proof would be shifted to the plaintiff, and it would lie with him to show, by a fair preponderance of evidence, that he was a bona fide purchaser of the notes.” It is plain that a note given upon a promise to com" pound a felony is void, whether it is made upon the solicitation of the maker of the note, or by reason of the threats of the payee or his agent. On the other hand, the note may be valid if no such promise to forego prosecution is involved, although threats to prosecute are made, and induce the making of the note, to settle a just debt, unless the circumstances show duress or fraud. Duress implies a constraint which overcomes the will of the person constrained, and this constraint may be the¡ result of imprisonment, or threats of immediate imprisonment. Hackley v. Headley, 45 Mich. 569; Lester v. Manufacturing Co., 1 Hun, 288; S. C., 3 Thomp. & C. 657; Plant v. Gunn, 2 Woods, 372; Landa v. Obert, 45 Tex. 539; Baldwin v. Murphy, 82 Ill. 425. The weight of authority is to the effect that imprisonment of one cannot be treated as duress or constraint of another. The case of husband and wife is exceptional, they being treated as one in law. Eadie v. Slimmon, 26 N. Y. 9; Green v. Scranage, 19 Iowa, 461; Brooks v. Berryhill, 20 Ind. 97. And in one case it was held that a father may avoid his deed given by the duress of imprisonment of a son. Bayly v. Clare, 2 Brownl. 276. But see, contra, Fulton v. Hood, 34 Penn. St. 365; Martin v. Broadus, 1 Freem. Ch. (Miss.) 35; Steinbaker v. Wilson, 1 Leg. Gaz. R. 76; Simms v. Barefoot’s Ex’rs, 2 Hayw. (N. C.) 402; Smith v. Rowley, 66 Barb. 502; State v. Davis, 79 N. C. 603. We think that a jury would be likely to infer from the charge that, if the father was induced to give his notes, by a threat to prosecute the son, the notes were necessarily void, unless the plaintiff should establish a bona fide holding, whereas the crucial question in the case was the illegality of the consideration, as based upon the alleged promise not to prosecute, which the threats only tended to prove. The judgment must be reversed, with costs, and a new trial ordered. The other Justices concurred.
[ 23, -1, 15, 14, -41, 14, 16, 16, 22, 70, 3, 2, 20, 87, -48, 9, 17, -57, 2, -31, -29, -52, -3, -34, 59, 2, 36, 57, 18, -26, 14, 28, -29, 6, -39, 13, 46, -29, 37, 21, -8, -34, 97, 33, -47, -43, -42, -31, -24, -26, 33, -25, 35, -64, -33, 55, 35, -16, -29, -9, -25, -74, 18, -27, -53, 13, -15, -21, -18, -30, -56, -4, 35, 23, -3, -43, -58, -3, -29, 28, 29, -9, 3, 4, 6, -17, 29, -24, -7, 27, 7, -7, -27, -36, -24, 29, 43, 57, 26, 18, 8, -35, -40, -52, 41, 41, -19, -17, -49, 14, -19, -19, 21, -38, -42, -17, -46, -21, -39, -16, -16, -12, 8, -56, -12, 49, -13, -19, 30, 0, 2, 14, -34, 26, -5, -25, -8, -27, -20, -11, -30, -2, 17, -24, 24, -22, -14, 5, -52, -1, -14, 30, -30, -3, 21, -39, -5, -45, 33, -11, 30, 12, 18, -34, -16, -16, -21, 22, 15, -2, -13, 31, -60, -17, 19, 0, 24, -24, -32, -46, 37, 64, 13, -3, 44, 15, -13, 44, -6, 28, -30, -17, 4, 44, 42, 2, -9, 3, 3, 22, -51, -24, 30, -2, -18, -26, 44, -45, -26, -6, 0, 56, -15, 6, -30, -20, 8, -78, -19, 19, -38, 11, -8, -9, -42, 12, 15, -32, -44, 31, 11, -10, -58, 32, -22, 47, 20, -21, -9, 1, -33, -1, -4, -47, 5, 19, 3, 7, 9, 9, -32, 33, -15, 53, 1, 4, -1, 6, -42, -21, 41, 62, -50, -1, 12, 0, 37, -33, -38, -3, 39, -91, 6, 61, 14, -3, -3, -23, -67, -49, 26, 27, -8, 5, -41, -35, -24, 41, -6, 22, 15, 2, 26, -14, 46, 10, 0, 3, -14, -1, -8, -53, 68, -23, -22, -21, 71, 9, -35, -29, 46, 11, -29, -23, 16, -1, -50, -45, -13, 47, 64, -6, -2, 2, -16, 33, 13, -13, 50, 45, -8, 15, 32, -43, -20, 17, 17, -20, -16, -15, -16, -15, -4, -3, -7, -13, -25, -5, -52, 4, 12, 15, -3, 1, 46, 0, 8, -58, -13, 57, 3, 5, -39, 28, 19, -11, 0, -23, -16, -2, 27, -3, -39, -1, -13, 41, -16, 3, -33, 31, -92, -32, 23, 14, 7, -3, -32, 38, 2, 64, -56, 42, 8, 14, 8, -19, -36, -5, -19, -6, -49, 53, 3, -30, -42, 39, -20, -20, -20, 0, 2, 2, 55, 3, -10, 13, 36, -41, 10, 9, 26, 7, -23, -13, 8, -36, -24, 16, -30, -39, -6, 23, 52, -69, 24, 48, 21, 0, -17, -10, -17, -13, 12, 34, 45, 32, -9, -65, 1, 16, -11, 8, 23, 7, -2, 41, 82, 5, -16, -49, 15, 21, 3, 27, 48, -8, -2, -5, 16, 1, -10, -29, -1, -6, -35, 44, 30, -12, -15, -22, -31, 85, 6, 15, 14, 13, -59, -80, -15, -47, 3, -3, 2, -1, 16, -14, 9, -18, -1, 64, 34, 44, 14, 47, 27, -15, -8, -32, -2, 24, 28, 6, 15, -22, -24, 13, 33, 18, -3, 39, 32, -39, -70, 12, -60, 7, -5, 37, -41, -10, 14, 52, 15, -33, 27, -31, -46, 9, -18, -26, -62, 3, 16, 53, -30, 19, 11, -22, 0, -2, -30, -35, 49, 29, -38, 75, 55, -24, 0, -40, 10, 37, -8, -41, 37, -25, 45, 20, 44, -23, -10, -21, 21, 30, -11, 5, 4, -2, 2, -26, 28, 21, -10, -54, -10, 17, -27, 42, 0, -16, 32, 20, -28, -43, -38, -30, -18, -35, -40, 28, 0, -6, -5, 2, -1, 1, -3, 30, 1, -26, 6, 14, -9, 44, -13, -16, 18, -50, 19, 4, 25, -18, 31, 30, 33, -5, 2, 2, 31, -15, -1, -42, 32, 57, -21, 0, -46, 33, -10, -12, -7, 61, -33, -28, 0, 1, 6, 3, 68, -20, -2, -13, 31, -24, 16, -37, -40, -24, 10, 8, 14, -34, -2, 22, -11, 28, 73, -15, 16, 5, 45, -10, -18, 18, -22, 19, -24, 19, 62, -18, -9, -13, 22, -5, 10, -55, 18, 2, -7, 40, 11, -14, 10, 5, 2, 0, 47, 22, 1, 4, -4, 22, -11, 9, -12, -26, -22, 22, 40, -35, 23, -16, -16, 0, -6, -35, 5, 20, -12, -30, -12, -31, 42, -26, -8, 18, 70, -2, -15, 32, 24, -33, -27, 28, -14, 22, 24, -48, 13, 13, -1, -7, -21, -11, -12, 3, 17, 10, 13, 46, 70, -9, 27, 44, -33, 55, -34, 1, 5, -49, 21, 32, 8, -35, 8, 1, -63, 10, 42, -42, -15, -56, 0, -9, -12, 16, -2, -27, 28, -4, 16, -6, 2, 58, 46, 0, -9, 33, -4, 65, 16, 30, -56, 20, 31, 8, -27, -73, 18, -28, 18, -39, 24, 23, 22, -19, 16, 21, -19, -2, -16, 15, -38, -20, -58, 17, 5, -2, -2, -6, 26, 40, 35, -22, -52, 38, -1, -3, -12, 32, 19, -21, -36, -6, -38, 25, 4, 3, -12, 12, 6, -38, 0, 31, 33, -24, 7, 41, 36, -20, 14, 18, -2, 6, -27, -43, -5, 14, -22, -25, 12, -4, -2, 0, 44, -17, -9, -6, 19, -18, -29, -40, -22, -2, 14, 15, 19, -4, -32, -18, -9, 71, -29, 7, -42, 15, 32, -41, -35, 6, 0, 0, -26, -29, 22, -23, 9, -66, 21, 20, -18, -48, -33, -29, 1, -3, -2, 18, 14, 31, 34, -36, 56, 3, -23, 10, 2, 18, -10, 2, 33, -2, -4, 4, 38, -53, 30, -26, -9, 30, 16, 1, -46, 2, 7, -24, -12, -7, 16, 25, 66, -19, -16, 7, -10, 16, -27, -39, 8, 6, -33, 52, 17, 29, 12, 18, -12, -1, -44, -8, -21, 29, -3, 22, 12, 7, 39, -18, -7, -13, 1, 11, -42, -45, -39, -34, 35, -28, -10, -8, -13, 22, -32, -14, 11, 44, 24, -10, -36, -44, 20, 32, -11, 4, 1, 23, -20, 33, -6, -11, -31, -35, -21, 33, 16, -13, 17, 60, -18, -25, -7, 5, -18, 63, -14, -16, 13, 7, 20, 23, -12, -22, 19, 64 ]
Durand, J. The declaration in this cause contains two counts. The neglect charged in each count is that the defendant, in violation of its duty, negligently caused to be used upon the freight train upon which plaintiff’s decedent, Samuel H. Wardwell, was employed as a brakeman, a certain car which was unsafe, in that the wood in which certain screws or bolts were fastened, which held in place a certain iron rail or bar on the end of the car, used by the brakeman as a foothold to step upon, was rotten and decayed, and that, when the deceased attempted to use it for that purpose, it pulled out of the rotten wood, and gave way, and he was killed. In the first count it is charged that the accident occurred by reason of his having stepped upon this foothold, and, in the second count, that it occurred by reason of his grasping it with his hands to support his weight, and that by reason of the defect in the wood it pulled out, and he was precipitated to the ground, and killed by the moving train. The declaration also contains the usual and necessary averments of due care on the part of the deceased, and that the accident was without fault on his part. The evidence shows that the deceased was, at the time of the accident, a brakeman in the defendant’s employ, and had been engaged for it in that capacity for several years. He was a strong, healthy man, of good habits and intelligence, and was 43 years of age. He was a trusty man, thoroughly experienced in the business, and fully aware of the dangers attending it, as well as of the necessity of observing, great care in the performance of his duties in order to protect himself from the serious accidents to which those engaged in that employment are constantly subjected. On the morning of August 1, 1890, he left Jackson with a freight train, upon which he was acting as rear brakeman, and arrived at Lansing at about 4:30 o’clock A. h., standard time. The train stopped at Lansing for a short time, where some cars were cut out, but, as they were taken from the front part of the train, the work connected with it was attended to by the head brakeman, whose duty it was, and the deceased had nothing to do with it, nor any duty to perform in relation to it. There was therefore no reason growing out of his employment, or connected with his discharge of any duty or service for the defendant, requiring him to leave the train at all during its stop at Lansing. He did, however, do so for some purpose of his own, and the conductor, who is plaintiff’s witness, testified that before the train started- he saw him leaning against a car on a side track east of the train, and some three or four feet south of the south line of Michigan avenue, and gave him the signal that the train was about to start; that, when he was motioned to, he walked towards the train, after the train got under headway. He was walking southward, and the train was moving northward. This was the last time he was seen before he was killed. The Michigan avenue referred to is a street running east and west at right angles with the railroad track, and it appears from the testimony that at least 9 or 10 cars of the train were south of the avenue at the time it was started. There is no living witness who saw what happened after the train started, but it is apparent from the circumstances disclosed by the undisputed testimony that the deceased walked about 75 feet south of Michigan avenue before he attempted to get on the train, and during this time several cars passed him that had side ladders upon them, and which he could have used with comparative safety in getting aboard the train, had he chosen to do so. This he did not do, but went to the rear end of a car described as a “G. S. L.,” or Canada Southern Line car, furnished by the Chicago & Eastern Illinois Railroad Company, and which was then being drawn as a part of the train by the defendant, and attempted to get aboard at that place. In doing so it is entirely clear from the testimony that he passed in between the cars from the easterly side of the train, and crawled either over or under the bumpers, and attempted to get on top of the car by the use of what is variously called by the witnesses a “handhold” or “foothold,” which was fastened into the west, side of the rear end of the car. When his absence was; discovered it was found that the handhold referred to had pulled out of the wood; that the wood into which it was-, fastened had become rotten, and, when the strain was. put upon it, it gave way, and he was dragged along under the train and killed. Testimony was given in relation to the inspection of the car in the ordinary way, and that the defect complained of was latent, and not discoverable by the ordinary methods of inspection; that it appeared to be a dry rot, which the paint on the car had concealed; and it was also proven that the car did not belong to the defendant, but was being drawn by it in the usual manner pursued by a prudent railroad company, with cars belonging to and received by it from other railroad companies. It also appears from the testimony that rule 29 of the ■defendant company, among other things, contains the following: “Many of the foreign and line cars running over this road are not equipped with ladders like those on Michigan ■Central cars; some having the ladders on the ends, others on the sides; some having stirrups on the bottoms of the car bodies, and others without. Trainmen and switchmen will examine the ladders of all cars, and note the situation ■and condition, before making use of same. * * * ¿Tumping on or off cars or engines in motion, entering between •cars in motion to couple or uncouple them, and all similar imprudences, are forbidden. Every employé is required to exercise the utmost caution to avoid injury to himself and fellow-employés, especially in coupling, switching, or other movements of cars and trains.” The deceased was entirely familiar with this rule. In a paper signed by him on December 31, 1884, and delivered to defendant's agent, he admitted that this rule had been read over to him; that he was furnished with a copy of it; that the dangers of the employment were explained to him; that he was enjoined to use constant and proper care to avoid injury-to himself and others; and in it he promised to make himself familiar with, and be governed by, the rules and regulations of the company. It appears that he had receipted for 10 different time cards, each of which contained the rule referred to, and that he had receipted for the time card No. 386, in force at the time of his death, and which included the same- rule. Besides this, being an -intelligent, trusty, and sober man, he had obtained by long experience a thorough knowledge of the great danger he was placing himself in by getting onto a moving train in the manner he did. Under this state of facts, the circuit judge took the '■case from the jury, and ordered a verdict in favor of the defendant. The plaintiff contends that he did so erroneously. As the action of the circuit judge in directing a verdict for the defendant was right under the plaintiff’s own showing, it is unnecessary to adopt, or even to discuss, the reasons he gave for such action. So long as the result attained is the right one under the law, his reasons for such action, even though fallacious, cannot be prejudicial. The fact that the defendant may have neglected a duty, and that an injury has resulted, is not all that it is necessary to show to entitle the plaintiff to recover. In addition to this, it is necessary for it to appear that the person injured was in the exercise of due care, and that he did not have a share in contributing to the resulting-injury. The latter is as important a factor in an action for damages for negligence as the former. This rule is unquestioned, and is to be fairly and promptly recognized in all cases when its application is required. In this case it is clear that the decedent was guilty of as serious negligence, and did as much to contribute to the injury, as the defendant is charged with having done. He was fully advised of the danger, and from his own knowledge and experience was entirely able to. judge of the care required of him in order to protect himself from serious injury. He was not in the performance of any-duty for the company after he left and before he attempted to get aboard the train at Lansing. He was not ordered by the defendant or any of its officers or agents having-authority to give such orders to take the risk he did, and there was no reason for his waiting until the train was in motion before attempting to get upon it. There was no reason why he should have permitted cars to pass by him that had side ladders upon them, which he could have used with safety, without using them for the purpose of climbing upon the train. The method he adopted of going in between the cars of a moving train, and crawling-over or under the bumpers, in order to reach a foothold or handhold on the opposite side, which he could use as a ladder to enable him to get to the top of the cars, was so unnecessary, and so extremely hazardous, that it must be held that he was guilty of such contributory negligence as to preclude the plaintiff from recovering for the injury, even though the defendant was also negligent in not having made proper inspection of the car. The defendant having furnished side ladders which he could have used without danger, it was his duty to use them for the purpose for which they were intended. Instead of doing so, he took a course which was the most dangerous he could possibly have chosen, and one which no person of ordinary intelligence or observation should have taken. Having done so, no claim can be sustained for damages on account, of the resulting consequences. Glover v. Scotten, 82 Mich. 369. The contention that, because the defendant must have known that many of its employés, in violation of its rules, were frequently accustomed to go between the cars of moving trains, therefore it cannot be considered negligent, for them to do so, can have no force in this case, however conclusively it may be made to apply to strangers, who, seeing repeated violations of known rules, are led into the belief that they are abrogated, or to employés who are compelled by positive orders to violate such rules, or when such a system of timing the trains or conducting the business of the company is adopted as to make it necessary for them to violate known rules of safety in order to do the work required of them. When no such condition exists, employés should observe rules made for their protection as well as for the safety of their fellow-workmen, and, failing in this, the fault must be considered their own. Brennan v. Railroad Co., 93 Mich. 156. In this case the evidence of contributory negligence is undisputed, and is so conclusive that there is no fact in regard to it. which should have been left to the determination of the jury, and the circuit judge did right in directing a verdict for the defendant. It follows that the judgment must be affirmed, with costs. The other Justices concurred.
[ -57, -8, 10, -3, -25, -6, 14, -3, 29, 17, -49, -31, 47, 0, -10, 3, 3, 0, -19, 5, 32, 6, -17, -52, -43, -34, -6, -10, -43, -9, 19, -14, -10, -10, -3, 56, 12, -43, 38, -17, 35, -13, -4, 5, 35, 12, 0, -18, 4, -56, -30, -5, 5, -46, 32, 19, 24, 31, -7, 40, -1, -65, 39, -48, -27, 45, -8, 46, -26, 8, -1, 58, 17, -19, -16, -16, -6, 10, -6, -23, -21, -10, 15, -45, -16, 13, -33, 6, -57, -13, 4, -9, -7, 12, -3, 4, -47, 22, -47, 0, -4, 15, -28, -15, -22, -50, -3, -41, -28, -10, -18, 75, 31, 9, -16, -21, 17, -55, 34, 40, 33, -21, 18, -44, -37, 0, 15, 27, -23, 6, 40, -8, -17, 27, 46, 7, -27, -43, -37, -5, 11, 48, 13, -33, 0, 14, -8, 71, -17, -14, -26, 58, -1, -64, 29, 12, 24, -15, 61, 5, 45, 42, 69, 2, -50, -21, -18, 15, 3, 18, -19, 11, 10, -17, 68, 37, -3, -22, -68, 16, -5, -17, 8, -8, -51, -78, 3, 0, 1, -6, 51, 4, -33, -26, -65, 33, 12, -52, 17, 14, 69, -21, -79, -24, -53, 30, 17, 18, 34, 18, 46, -6, -2, 5, -40, -4, -6, -16, -9, -56, 0, 4, 16, 1, 14, -67, -43, -21, -19, 18, 9, -19, 55, 29, 7, -31, 11, -53, 35, 0, 68, -16, 2, -17, 18, -33, -45, -53, 0, 9, -5, 13, -29, -25, 2, -20, 29, -1, -50, -38, 60, 38, -4, 35, 37, 5, 2, 31, 10, -63, 23, -19, 35, -38, 4, 2, 26, 69, 22, 16, -13, -11, -62, -11, -27, -30, -31, 9, -20, -2, 6, -43, 7, 9, 20, 87, 45, 43, -16, -6, 30, -13, -35, 12, 21, 58, -55, 10, 2, 30, 3, -15, -19, 5, 19, 43, 58, -31, 24, 3, -79, 26, -36, -41, 21, 24, 10, 36, 15, 11, 16, 28, -15, -3, -35, -21, 11, 38, 8, -24, 30, 28, 10, 4, 9, 3, 33, -7, -10, -28, -12, -21, 39, -67, -19, 41, 19, -31, 39, 29, 28, -31, 8, 22, 16, -73, -22, -17, -38, 27, 75, -31, 23, -10, 5, 15, 0, 50, -13, 53, 0, 12, -9, -52, -16, -14, -14, -20, -46, 96, -12, -3, 52, 8, -14, 3, -11, 62, -22, -20, -38, 8, -40, 10, 6, 1, -1, -3, 7, -14, 16, 26, 57, -11, 27, 15, 37, 13, -16, 7, 32, 24, 31, -52, -7, -18, -4, 18, -2, -34, 55, -37, 79, 42, -64, -13, -14, -24, 1, -40, -13, -4, 25, -8, -20, 12, -25, 44, 34, 16, 13, 3, 24, 44, 9, 25, 33, 7, 46, 56, -32, -39, 40, 81, -14, -4, 8, -43, 31, 0, -30, -3, -42, -5, -24, -29, 1, -3, 9, 15, -23, 30, 19, -3, -6, -17, 14, 2, 33, 4, 16, 45, -39, -22, 11, 7, -49, -7, -22, 3, -13, -23, -14, -39, 23, 1, -2, -25, -36, -3, 7, 23, 14, -18, -3, 47, -41, -32, -41, -40, 28, 30, -47, 5, 0, 21, -22, -10, -8, -15, 38, -43, 11, 35, 2, 13, 12, 15, -15, -22, 10, -15, 22, 20, 4, -47, -9, 20, 14, 26, 2, -4, 0, -31, -11, 6, 13, 9, -9, 13, 22, -30, 14, -18, 9, 21, 9, 5, 46, -74, -23, 37, 7, -41, -18, 13, -1, 6, -26, -16, 5, -4, 10, -1, -25, -19, -19, -4, -62, 13, -6, 21, -1, 0, 38, 0, 0, 23, -2, 19, -17, -62, 13, 38, 53, 37, -33, -61, 12, 1, 41, -16, 19, -10, -6, 33, -14, -29, 28, -10, -50, -3, 6, 23, -41, -2, 9, -18, -26, -51, -45, 32, -70, 39, -11, 18, 41, 30, 12, -18, 3, 6, 21, -22, -11, -8, -57, 33, -11, 38, -55, 20, 13, 18, -9, 12, 6, 43, -19, -29, 4, 11, -25, 30, -8, 11, -6, -11, 15, 20, 99, -28, -15, 3, 15, -7, -50, 14, 3, 9, -16, -8, 64, -23, 11, -27, -29, 42, 52, -73, -45, 28, -2, 32, -6, 27, 53, -39, 26, -16, -15, 11, 28, 27, -26, -33, -8, -25, 11, 29, 26, 15, 9, -41, 21, 16, 21, -55, -57, -36, -5, -6, -27, -31, 31, 27, 40, -33, -40, -39, 14, -19, -17, -23, 7, -6, 53, -29, -7, -8, 0, 4, 51, 46, -22, -9, -12, 21, -19, -3, -11, 3, 33, -52, 31, -39, 8, 36, -10, -44, -4, -44, 55, -1, -41, 69, 0, 9, 15, -5, 43, 19, 3, -45, 1, 62, 22, -42, -12, 22, 29, -27, 10, 31, -3, -24, -8, -1, -1, -13, 13, -14, 11, 11, 21, -8, -25, -14, -21, -3, -28, 2, -50, 38, -10, 6, 31, 20, 16, -8, 30, 41, -33, -4, -14, 8, -2, -1, -33, 39, 6, 73, -14, -36, -22, 5, 23, -32, 27, -41, 1, 6, 6, 20, 11, 45, 0, -19, -17, -19, 40, 21, 6, -21, -34, -26, -6, 22, 15, 24, -21, -24, -29, -21, -40, -21, 46, -30, 18, 7, -21, -32, -72, -3, -44, -11, -64, -13, -31, 17, -3, 21, 5, 49, -35, 6, 29, -60, 4, -3, -24, -73, 22, 40, -20, 32, -17, -74, 13, 24, -6, 8, -36, 0, -28, 16, -58, 53, -10, 8, -10, 19, 5, 1, 3, -53, 8, -13, -34, 11, -2, -10, -58, -20, -22, 44, -53, 39, 12, -19, 26, -23, 23, 20, -3, -8, 8, 43, -20, 49, -17, -29, 40, -34, 41, -36, -1, -17, 25, -19, 35, -34, -45, 47, 30, -17, 54, -58, -35, 29, 3, 28, 0, 43, 31, -2, 2, 1, -9, -41, 54, 13, 55, 26, 63, 45, 16, -5, -25, -37, 1, -13, -50, -55, 9, -31, 6, 3, 1, -14, 34, 23, -11, 37, 2, -34, -21, -61, -63, 36, 5, 45, -26, 36, -44, -8, 7, 9, 24, -34, 38, -57, -30, 22, 16, -3, -24, 48, -16, 48, -81, 41, 8, 9, 6, 53, -50, 17, -7, -34, 35, 7, 26, -8 ]