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Grant, J.
One "William H. Oobb, being indebted to the plaintiff in the sum of $7,000, on October 17, 1890, executed to plaintiff a chattel mortgage to secure that amount. Cobb resided in Kalamazoo, but the property mortgaged was in Bay City, where he carried on business. By mistake the mortgage was on the same day filed with the recorder of Bay City, instead of at Kalamazoo, where the law required it to be filed to operate as a notice to creditors. January 7, 1891, plaintiff took possession under its mortgage.
January 8 the Commercial Bank of Bay City sued out a writ of attachment, and placed it in -the hands of the defendant sheriff for execution, who levied upon and took possession of the property here in dispute. Plaintiff brought this action of trover to recover the value. It is conceded that plaintiff's mortgage was taken in good faith to secure a bona fide indebtedness.
The attachment suit was brought on a note for $700, dated October 4, 1890, given by Cobb to the plaintiff in ■ the attachment suit, and on a draft for $174.10, dated October 16, 1890, drawn by the Connersville Furniture Manufacturing Company, with bill of lading attached, upon Cobb. This draft was presented to one H. E. Cobb, who signed the name of W. H. Cobb to an acceptance written thereon November 3, 1890, which acceptance made the draft paj'able at the Commercial Bank.
It is the settled law of this State that an unfiled bona fide chattel mortgage, given by a debtor to a creditor, is good as against those creditors whose claims accrued prior to the execution of the mortgage, but that such mortgage is not good as against those creditors whose debts were created during the time between the execution of the mortgage and its filing, and who had no knowledge of the existence of the mortgage. Littauer v. Houck, 92 Mich. 162; Brown v. Brabb, 67 Id. 17. So far as the note for $700 is concerned, this case falls clearly within those decisions, and the mortgage must be held to have precedence.
The Commercial Bank was informed in December, prior to its attachment suit, of the plaintiff's mortgage. The draft for $174.10 was sent to the Commercial Bank for collection. It is questionable whether the defendant proved that H. E. Cobb was the lawful agent of W. H. Cobb to accept this draft, under How. Stat. § 1583. But it is unnecessary to determine this question. Under this record the Commercial Bank was not the owner of the draft. The Connersville Furniture Manufacturing Company extended no credit to Cobb. He had no right to receive the bill of lading or the goods shipped to him except upon payment of the draft. The bank had no authority to extend credit. It violated instructions in so doing. The manufacturing company cannot now take advantage of the wrongful act of the bank in violating its instructions. As to this claim, the Commercial Bank could only maintain its attachment suit on the ground that it was the collecting agent of the manufacturing company, and there is no evidence upon the record to show any ratification of the act of the bank in surrendering the bill of lading, and thereby delivering the goods contrary to instructions. Certainly one who does not intend to and has not extended credit to a debtor cannot claim that he is prejudiced by a mortgage which is not filed.
The record does not show that the bank paid the draft. If paid after the bank had information of the existence of plaintiff’s mortgage, it could not recover. If it claimed the right to recover upon this basis, it should have shown that it paid the draft before receiving information of the existence of the mortgage.
The court below directed a verdict for the plaintiff, and the judgment entered thereupon is affirmed.
The other Justices concurred. | [
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Long, J.
This is a proceeding by quo warranto to-inquire into the right of the respondent to hold the office* of county commissioner of schools for Livingston county.. The cause was heard in the circuit court of that county,, findings of fact and law made, and judgment of ouster entered. The *case is here to review the action of the-trial court.
It appears from the findings of fact that the respondent, at the time this proceeding was commenced, ivas exercising the duties of county commissioner of schools for-Livingston county, under the provisions of Act No. 147, Laws of 1891, by virtue of an election by the board of supervisors held June 24, 1891, and that he entered upon, the duties of the office on the fourth Tuesday of August-following. The sole question is upon the eligibility of the respondent. The court found that he was 21 years-of age, of good moral' character, learning, and ability to-instruct and govern a school, and ‘that he had taught,, prior to his election, at least one year, with ability and. success; that in 1887 he graduated from the Howell Union. School, receiving a graduating diploma, which entitled him to admission to various courses in the Michigan University without further examination; that all branches of study required for a first-grade certificate were included in his. course at the Howell Union School; that prior to his election he had also graduated from the law department of the Michigan University, and was a member of the bar of Livingston county, and was also secretary of the board of school examiners of that county; that he held, at the time of his election, a certificate issued by the board of schooll examiners of Washtenaw county, purporting to be a “special! first-grade certificate,” but such certificate did not purport to be a regular first-grade certificate, nor was it issued or dated at any of the regular public examinations provided by law; that after his election, and prior to the commencement of his term of office, the board of county school examiners of Washtenaw county issued and delivered to him a teacher’s first-grade certificate, in due form of law, and. regular upon its face, signed by the secretary and chairman of such board, and which bears the date of August • 7, 1891, but that the respondent was not present at the-examination, though the board, from personal acquaintance with him, were satisfied that in all respects he was qualified to hold such certificate, and it was issued in good faith, but not delivered to respondent until four weeks, later; that since the filing of the information in this case,, the board of school examiners of Macomb county, on March 3, 1892, issued to him a teacher’s first-grade certificate in due form of - law; that this was upon examination of the respondent at a regular meeting of the board,, though he was not a resident of that county at the time, and not intending to teach in that county. It was found,, however, by the court below that, at the time of his election, the respondent was not a graduate of the literary department of any reputable college, university, or state-normal school (unless the high school department of the-Howell Union School could be called a “ college ”); that, he did not hold a State teacher’s certificate; that he had not held a first-grade certificate within two years next preceding the time of his election; that he had not held the office of county commissioner under Act No. 147, Laws of 1891; and that there were more than 50 schools in said county subject to the supervision of the county commissioner at the time.
From these facts the court concluded, as matter of law,—
1. That said special first-grade certificate was not authorized by law, and was void.
2. That the Legislature did not intend to include union or graded schools within the term “ reputable college.”
3. That the acquisition of a first-grade certificate after election does not come within the meaning of the plain language of the statute, which expressly says that such certificate, to be available, must have been had at some period within two years next preceding the election.
4. That, under the terms of the statute, the respondent is not eligible to the office.
5. That, being ineligible by express terms of law, there is no room for the court to consider questions of public policy or public good.
Section 4 of article 13 of the Constitution leaves the matter of the government of the primary schools of the State to the Legislature, by providing that it shall establish a system whereby schools shall be kept, without charge for tuition, at least three months in each year, in every school-district in the State. The office of county commissioner of schools is not one of the offices enumerated in the ■Constitution; but, under the general power of the Legislature conferred by the Constitution, undoubtedly that body has the right in arranging the school system to make such regulations for the government thereof as its wisdom shall dictate. The act of 1891 provides for the election of a county commissioner of schools by the board of supervisors of each county. Section 3 of that act provides that—
“No person shall be eligible to the office of county commissioner of schools who shall not be a graduate in the literary department of some reputable college, university, or State normal school, or hold a State teacher's certificate, or who shall not have held a first-grade certificate within two years next preceding the time of his or her election, •or shall have held, the office of county commissioner under this act.”
The Legislature, having the power under the Constitution, to provide for a county commissioner of schools, had the right to fix and determine the qualifications of the incumbent of the office within reasonable limits; and it •cannot be said that the qualifications .required by the act ■are unreasonable. Our primary school system is the pride -of the State, and the legislative intent, as shown by the •act, was to keep up the standard of teachers to be employed therein, by requiring certain educational qualifications in rthe persons whose duty it is to examine the teachers to be employed, and determine their fitness for the work intrusted to them.
It is contended by counsel that respondent did possess ■the qualifications required by the act, in that—
1. He was a graduate of the Howell High School.
2. He held a special first-grade certificate from the board •of examiners of Washtenaw county; and there was .also issued to him a first-grade certificate by the boai’d of • examiners of Washtenaw county, dated August 7, 1891, and also one from the board of examiners of Macomb • county, March 3, 1892.
3. He was the secretary of the board of school examiners •of Livingston county at the time of his election.
We think that he has not shown the necessary -qualifi- • cations to hold the office required by the act.
1. His graduation from the Howell High School does mot confer upon him what the act requires. It is not a •“college,” within the meaning of the act. That term must be taken in its popular sense and well-understood meaning. High schools are now established in all the principal cities and larger villages of the State, and had become well known as such before the passage of the act in question; and certainly the Legislature never intended' by tbe language employed to class such schools as colleges..
2. The certificates held by him as a teacher did not. confer upon him the necessary qualifications to hold the office. The special first-grade certificate, and the only one-held by him at the time of his election, was void, for the-reason that first-grade certificates can only be granted on. the first Thursday of March and of August of each year,, under the provisions of Act No. 266, Laws of 1887, and Act No. 147, Laws of 1891. It was said by this Court in Lee v. School-Dist., 71 Mich. 361:
“These special first-grade certificates are to bridge over the time between the commencement of a school and the next meeting of the board of examiners, and not for the-purpose of making persons eligible to office.”
Under these acts a special certificate is granted and valid only to teach in a specified district; and first-grade certificates can be granted only at the regular public examinations-provided for in these acts, — that is, o.n the first Thursday of March and of' August of each year.
3. The second certificate issued to the respondent, it. appears by the finding of the court, was not upon any examination taken by him. He was not present at any examination. The board agreed to issue a certificate, and did issue it, as bearing date of August 7, 1891; but it was-not delivered to the respondent until four weeks afterwards, and after his election, and after he had entered upon the-duties of his office. We think this certificate is also void. It is the intent of these acts that any person desirous of teaching in our public schools shall present himself or herself before the board of examiners on one of the days, specified in the acts, there to submit to an examination,- and, if found to be qualified, then to receive a certificate-in the proper grade. The Legislature has provided this? method for ascertaining the qualifications of teachers, and a certificate issued to one who has not taken an examina tion at all, and whose qualifications are not ascertained upon an examination, is not such a certificate as the law provides for.
4. The third certificate was issued March 3, 1892, upon a public examination had at the time the law provides for the meeting of the board, and is in due form of law, and it is conceded that it is now held by the respondent, unrevoked; but the statute provides that no person shall be eligible to the office “ who shall not have held a first-grade certificate within two years next preceding the time of his- or her election." It is contended by respondent that there-, being no person who claims the office, and his eligibility being now established, he should not be ousted. The limitation, however, upon the right to hold the office is plainly fixed by this statute. He must have held a first-grade-, certificate at some period of time within the two years next, preceding his election. This he did not have.
5. The fact that he had been secretary of the board of examiners under the act of 1887 did not make him eligible. It was not the intent of the Legislature to make one holding that position eligible to the office. The provision of the act, “or shall have held the office of county commissioner under this act," clearly implies one who in th& future may be a candidate for the office under the act, and have held that office under the act at some time prior thereto.
We think the court below was right, under the circum«tances, in entering judgment of ouster. The judgment, must be affirmed, with costs.
The other Justices concurred. | [
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] |
Per Curiam.
The facts in this case are similar to those in Packard v. Board of Canvassers, ante, 450, and the questions of law are identical.
This case will therefore be ruled by it, and the writ will be denied. | [
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Grant, J.
Plaintiff, while in the employ of the defendant, rolled a barrel weighing about 250 pounds upon the-elevator, placing it on one side. He then rolled a second barrel on, when the platform commenced to descend, and went suddenly to the bottom, carrying plaintiff with it, .and injuring him.
The car of this elevator consists of a platform about ;six feet square, with two posts rising from the middle of ■opposite edges, about six feet high, connected and braced at the top by a crossbeam. These posts travel up and ■down two guides extending from the top to the bottom ■ of the elevator shaft, and serve to hold the platform of the car level, and prevent its swaying from its position. 'Two heavy iron hooks are screwed into the floor of tbe platform, one at the side of each of the posts. Across the top of the elevator opening or shaft, and in a direction parallel with the crossbeam of the elevator car, is hung .a piece of steel shafting with several wheel pulleys keyed upon it. Two ropes, into the end of each of which is .spliced an iron ring or eye, are fastened to the platform ■of the car by slipping these rings over the hooks mentioned .above. These ropes, passing up through the elevator shaft ■over two of the wheel pulleys upon the steel shafting above .and down on the other side, aro attached to two very heavy weights, which travel up and down guides on the sides •of the elevator shaft, and serve to counterbalance the weight of the car; the weights moving up as the car moves down, and vice versa. The wheel pulleys over which these ropes pass have Y-shaped grooves in their rims, to prevent the ropes from slipping around, by causing them always to fit tightly in the grooves, no matter how much worn they may be. The elevator is operated by hand power, by pulling up and down on an endless rope, which passes over a wheel pulley geared to the same shafting that carries the pulleys over which the balance ropes run. This pulley also has the Y-shaped groove in its rim, and, when any one pulls up or down on the endless rope, the .shafting revolves, and the elevator is moved up and down .by the balance ropes. The brake is a device for tightening an iron band that is hooped over another pulley fastened into the shafting. This band is tightened over the pulley by pulling down on a rope fastened to the end of a lever attached to the hoop. After pulling on this rope until it is as tight as desired, the brake is locked (before letting go of this rope) by pulling on another rope, which drops-a ratchet into notches on the brake lever, the arrangement being similar in principle to that by which a railroad brakeman sets a brake with his toe. To unset the brake it. must be tightened a little more, Avhen the ratchet will drop out of the notch, and release the lever.
The allegation of negligence in the declaration is of the most general character, consisting of the statement that the-defendant negligently suffered and permitted the elevator to become and to be and remain worn out, broken, and defective, and in an unsafe and insecure condition, and unfit for use.
•After the accident it was found that one of the balance ropes had become detached, the eye having slipped off the-hook, and the weight attached to the opposite end had fallen to the cellar. It was also found that the key or-pin which held the wheel on the axle above had come out. When this key was out, there was, of course, no control of' that side of the elevator.
The court submitted the question as to plaintiff’s contributory negligence and defendant’s negligence to a jury, who found a verdict for the defendant.
We deem it unnecessary to discuss the various errors-alleged to have been committed during the progress of the trial, for the reason that the jury rendered the only verdict, that can be justified by the undisputed facts and the law applicable thereto. Where the correct result is reached,, the errors alleged are immaterial. We think the court, under the evidence, should have directed a verdict for the-defendant.
The plaintiff did not show himself to be free from negligence. ' He was entirely familiar with the elevator, its •construction, and- method of use. He knew that, unless •the brake was properly set and locked, a weight placed .upon the car would cause it to descend. The brake must an all cases be set according to the weight of the material placed upon it for carriage. For a heavy weight it should be set harder than for a light one. It was therefore his •duty to see that the brake was properly set and locked, .and his duty to prove it upon the trial. His testimony upon this point was as follows:
“ I do not remember where the elevator was when I first wanted to use it. It might have been on the floor below. I do not remember how the elevator got there, or whether I tried to see if it was solid, or put my hand on the brake from the beginning to the end, if I brought the elevator up. If I did, I would have to tie the brakes, or the elevator would have gone still higher. It would not have •stopped if I had not put on the.brakes. It would have gone up. I did not try the brakes after I got the first barrel on; and as I was putting the second barrel on the ■elevator went down.”
It thus appears that the plaintiff rolled two barrels upon the elevator platform without first directing his attention .to the brake, and seeing that it was properly set. The •elevator had just before raised a weight of 1,500 pounds in safety, and the brake was found sufficient to control it. A proper regard for plaintiff’s own safety and for the .safety of the property of his employer required him to take this necessary precaution. Having failed to show this, he was not entitled to recover. In my judgment, a recovery under such circumstances has no foundation either in law or justice.
Plaintiff’s proofs failed to show any negligence on the part of the defendant. Whatever other authorities -may hold, it is the settled rule in this State that negligence icannot be inferred from the mere proof of an accident and consequent injury. Toomey v. Steel Works, 89 Mich. 249, and authorities there cited. The sudden breaking or giving way of a piece of machinery, properly constructed, is not .sufficient to justify the conclusion of negligence. Machinery well constructed, apparently safe, and having been tested by use, often gives way from some hidden cause or unknown ■defect.
This elevator had been in constant use for a long time, •and had, without accident, performed the work for which it was intended. The fact that once before it had descended in a manner similar to that in the present case, is not ■evidence that it was out of repair, as in that case the .accident may have resulted from the failure to set and lock the brake. The slipping of the hook was unquestionably ■the result of the fall, rather than its cause. This is •conceded by the plaintiff’s counsel, for they say in their brief that there is no evidence that the rope became detached before it fell, and that, if it had been so detached, the car would have locked itself upon the slides. All the witnesses familiar with the elevator, and who ■examined it just after the accident, agree that all the parts •of the elevator were in proper shape and condition, except that the key which held the wheel upon the shaft was out, and the hook was out of the ring. There is no evidence that the key was out before the accident, or that it was loose. The strain upon this wheel and the shaft by the fall of this heavy weight, almost unchecked, for 30 feet would be very great. The heavy balance weights, upon the sudden stoppage, would fly up, and then fall back upon the wheel with great force. That the key was not out, but was in fact in place, at the time plaintiff commenced to load the elevator, is certain. This appears from the facts, as already stated, that it had just carried up a heavy load, and that, if out, the elevator would have at once descended when the first barrel was rolled on. Negligence cannot, therefore, be predicated upon the theory that the key was ont, and that this caused the fall. There= is no evidence to show that it was loose before the fall, or that the ordinary use of the elevator would tend to loosen it. Plaintiff gave no evidence tending to show a necessity to inspect this pin for the reason that it might become-loose. It is certainly as consistent with the theory that the key was jarred out by the sudden and great strain upon it as that it had become loose from ordinary use. In such case it is not competent for the jury to guess which theory is correct.
Under the undisputed facts in the case, the testimony of the witness Perry, as to the condition of the elevator when he worked for the defendant, becomes immaterial. He left-defendant’s employ six months before the accident. The elevator was overhauled and repaired after he left, and about three months before the accident, and there is no evidence-showing any difficulty in running it after that time.
Judgment affirmed.
Long, Durand, and Montgomery, JJ., concurred with-Grant, J. | [
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Montgomery, J.
This is certiorari to review the proceedings of the defendant commissioner in laying out a highway in the township of Easton, Ionia county.
The petitioner Nancy Welch is the owner of a life-estate in certain premises through which the highway runs, the two other petitioners being, with others, owners of the fee. At the time of the proceedings Frank Welch was a tenant in the occupancy of the premises. The commissioner returns that notice of hearing upon the application for laying out the highway was not served upon the occupant.
This omission was fatal to the proceedings. 3 How. Stat. § 1298; Dixon v. Commissioner of Highways, 75 Mich. 225.
The proceedings must be quashed, with costs.
The other Justices concurred. | [
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Grant, J.
One Cole, being the owner in fee of a piece of land bordering on a lake in the village of South' Arm, Charlevoix county, executed to one John Munro an instrument of conveyance, the material parts of which read .as follows:
“ Whereas, the said party of the first part, at the time ■of the sealing and delivery of these presents, is seized in fee of certain premises, described as follows, to wit: A piece of land whose superficial area is to be not less than 120 feet by 120 feet, and' to have a frontage upon the south arm of Pine lake of not less than 120 feet, and a frontage of not less than 120 feet upon a street to be laid ■out on fraction six of section 23, township 32 north, of range 7 west, in a nearly parallel line to the shore boundary of said fraction; said land to be bounded northwardly by a piece of land formerly owned by W. F. Empey; the division line between said two pieces of land being at an ash tree, which stands nearly equidistant from a warehouse upon the above-described premises, and a blacksmith shop on the said Empey land. Said land is hereafter to form two village lots of a village to be laid out on said fraction six, of which the land above described forms a part.
“Now, therefore, this indenture witnesseth, that the party ■of the first part, for and in consideration of the sum of ten dollars to them in hand paid by the party of the second part, the receipt whereof is hereby confessed and acknowledged, do by these presents grant, bargain, sell, remise, release, and forever quitclaim unto the said party of the second part, and to his heirs and assigns, forever, the right to build and use a dock upon the front of the above-described land, beyond a line commencing at the most south-eastern pile now driven in the water in front of the above-described land, and extending due north until it intersects a line ■extending from the above-mentioned street to the lake, and thence to the center of the channel of said lake; said line being a parallel line to the southerly line of said land, and 60 feet distant therefrom. The above right to include all the rights of the said party of the first part south and east of said lines.
“ Together with, all and singular, the hereditaments and .appurtenances thereunto belonging, or in anywise appertaining; to have and to hold the said right to the said party of the second part, and to his heirs and assigns, to the sole and only proper use, benefit, and behoof of the said party of the second part, his heirs and assigns, forever.”
Subsequently the land described in the recital was platted as lots 1 and 2 of block A of the village of South Arm..
Plaintiff claims title by mesne conveyances from John Munro, and in her declaration alleges that she is the owner in fee of the land described in the recital of the deed from Cole to Munro.
The defendants are in possession, and claim title under a deed from the assignee of John Munro, an insolvent, debtor.
The principal question in the case arises upon the construction to be given to the deed from Cole to Munro; plaintiff contending that it conveyed the fee of the land, and defendants contending that it conveyed only an easement or corporeal hereditament. The intent to be gathered from “the four corners” of the instrument must control, and every word given effect, and harmonized with the rest of the instrument, if possible. Moran v. Lezotte, 54 Mich. 83. The enjoyment of the particular right granted may require the permanent and exclusive use of the land out of which it is granted, but this will not operate to convey the fee. Chief Justice Shaw, speaking for the supreme court of Massachusetts, said:
“The general rule is that the right of the public or of individuals to the use of the land of others, for a precise and definite purpose, not inconsistent with a general right of property in the owner of the soil, is, in contemplation of law, an easement or franchise, and not a right of property in the soil, even though it deprive the owner for the time being of all useful or beneficial interest in the land.” Harback v. Boston, 10 Cush. 295; Smith v. Wiggin, 48 N. H. 105.
The deed in this case recites that the grantor is the owner of the fee, and he expressly conveys only the right to build and use a dock. The right so conveyed is entirely consistent with the retention of the ownership of the soil. It is no more permanent or exclusive than the use of property acquired by grant for a railroad right of way, or for other railroad purposes.
In Ryan v. Wilson, 9 Mich. 262, the grantor conveyed to his son one-half of his farm, reserving to himself the other half, “for and during his natural life, and after his decease to revert to the party of the second part, and his heirs, forever.”
It was held that no title to the land reserved passed by the deed to the grantee; Justice Campbell holding that “ no estate can pass by deed that is not embraced plainly within the words of grant.”
In the present case no more apt words could be chosen to indicate the intention of the grantor to retain the fee, and convey only the right to use the land for the purpose mentioned. In view of this plain language, the words “the above right to include all the rights of the said party of the first part,” etc., must be held to refer to the right conveyed, so that no doubt might exist as to the right of the grantee to use all the land south and east of said lines for the purpose indicated in the conveyance.
The plaintiff failed to prove the title set forth in the-declaration, and the court erred in admitting the deed in evidence and in refusing to direct a verdict for the defendants.
In view of possible further litigation, it is proper to dispose of two other points raised in the case. Defendants pleaded a former suit in bar between this plaintiff and the two defendants Meech and Eathbone. After the introduction of the record of the judgment, plaintiff showed, by the minutes of a stenographer, that the court directed a verdict for the'1 defendants for want of proper parties defendant. The ruling was correct. It is competent to show by parol that the merits of the case were. not decided in a former suit, pleaded in bar. Franks v. Fecheimer, 44 Mich. 177; Lyman v. Becannon, 29 Id. 466.
Defendants, in support of their title, offered in evidence a record of the general assignment for the benefit of creditors by John Munro to Henry A. Harmon, dated December 4, 1883, coupled with an offer to show a mesne conveyance from Harmon to the defendants. It appears that the deed from Munro to plaintiff’s grantor, though made before the deed of assignment, was not recorded until after the deed of assignment, and after the alleged deed from the assignee to the defendants’ grantor. Defendants further offered to show that the grantee of the assignee was a tona fide purchaser for value, without notice. This evidence was rejected on the ground that it was not accompanied. with proof that the assignee had duly executed and filed his bond as such assignee. We think this was error. The purpose of this bond is to protect the assignor and his creditors. If they make no objection for failure to file the bond, and the assignee proceeds and executes the trust, other parties cannot complain, and bona fide purchasers for value will be protected. Fuller v. Hasbrouck, 46 Mich. 78; Abbott v. Chaffee, 83 Id. 256; Butler v. Wendell, 57 Id. 62.
Judgment reversed, and new trial ordered.
Hooker, C. J., McGrath and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Riley, J.
Because we find that MCL 129.201 et seq.; MSA 5.2321(1) et seq. imposes upon a governmental unit the duty to verify the validity of a payment bond furnished by a general contractor of a public works project, we reverse the Court of Appeals affirmance of summary disposition with regard to plaintiff’s negligence count. Similarly, because we find that defendant may have inequitably received the benefit of plaintiff’s labor and materials, we reverse the Court of Appeals affirmance of summary disposition with regard to plaintiff’s unjust enrichment and constructive trust counts. Finally, we affirm the Court of Appeals affirmance of summary disposition with regard to the third-party beneficiary count because plaintiff is not a third party within the meaning of MCL 600.1405; MSA 27A.1405._
I
Because plaintiff’s complaint was dismissed on summary disposition, we view the facts in the light most favorable to plaintiff. Stevens v McLouth Steel Products Corp, 433 Mich 365, 370; 446 NW2d 95 (1989).
On April 23, 1987, defendant, East China Township Schools, entered into a general construction contract with a general contractor, Dougherty Construction, Inc., for the construction and renovation of athletic facilities in the district. As required by the public works act, Dougherty furnished defendant a performance bond and a payment bond. The bonds were standard, preprinted, American Institute of Architects forms, with the name of the surety, American Seaboard Indemnity & Insurance Company of Peachtree City, Georgia, printed across the top of each bond.
Dougherty entered into a contract with plaintiff, subcontractor Kammer Asphalt Paving Co, for certain base and paving work. In consideration of plaintiff’s services, Dougherty agreed to pay Kammer $217,906. In October of 1987, plaintiff notified Dougherty, as well as the school district, of its intended performance and its reliance upon the payment bond.
In accordance with the general contract, the project’s architect, DiGeronimo Associates, disbursed progress payments to Dougherty as the project advanced. Dougherty, however, was not as consistent in paying the project’s subcontractors. When various subcontractors, including plaintiff, repeatedly expressed concern over Dougherty’s failure to compensate them, defendant, DiGeronimo, and Dougherty all indicated that they need not worry because the payment bond protected the subcontractors’ interest.
On August 15, 1988, defendant discovered that the furnished bonds were invalid and unenforceable — American Seaboard Indemnity & Insurance Company did not exist. Dougherty ignored defendant’s subsequent demands for valid bonds. On October 21, 1988, defendant issued a notice of termination to Dougherty because of its failure to furnish the required bonds, at which time plaintiff first became aware of the fraudulent nature of the bonds.
Defendant then filed suit in St. Clair Circuit Court against Dougherty Contractors and William Dougherty. In a separate action, plaintiff filed suit against Dougherty, DiGeronimo, defendant, and various members of the East China School Board. Four other subcontractors separately filed similar actions. In response to defendant’s motion, the trial court consolidated the subcontractors’ five separate suits with defendant’s action against Dougherty.
Following consolidation of the lawsuits, defendant filed a countercomplaint and third-party complaint for interpleader, naming all of Dougherty’s subcontractors as parties. Defendant sought to deposit the remaining contract funds with the trial court for a determination regarding its proper distribution. Defendant proposed that the fund first be applied to pay for completion of the project, with any remaining funds to be distributed to the unpaid subcontractors on a pro-rata basis.
On March 16, 1989, defendant filed a motion for summary disposition pursuant to MCR 2.116(C)(8) and (10) with regard to the subcontractors’ claims against the school district. The circuit court granted defendant’s motion, finding no legal duty for governmental units to ensure the validity of the bonds, which foreclosed the subcontractors’ negligence claim. Furthermore, the court found that the subcontractors’ unjust enrichment, constructive trust, and breach of contract to a third-party beneficiary claims were unsupportable. The Court of Appeals affirmed in an unpublished per curiam opinion. This Court granted plaintiff’s application for leave to appeal on December 8, 1992. 441 Mich 894.
II
Because materialmen and contractors may not obtain a mechanics’ lien on a public building, the Legislature requires the posting of performance and payment bonds by a general contractor before construction on a public building may commence. MCL 129.201 et seq.; MSA 5.2321(1) et seq. Payment bonds are "solely for the protection of claimants . . . supplying labor or materials to the principal contractor or his subcontractors in the prosecution of the work provided for in the contract.” MCL 129.203; MSA 5.2321(3). The bond, therefore, must be "executed by a surety company authorized to do business in the state.” MCL 129.204; MSA 5.2321(4). The Legislature further protects subcontractors by mandating that public units provide subcontractors a certified copy of a submitted bond if they submit an affidavit that they are unpaid for services or materials. MCL 129.208; MSA 5.2321(8). Furthermore, such a certified copy "shall be prima facie evidence of the contents, execution, and delivery of the original.” Id.
The Court of Appeals, relying on prior author ity, held that "[t]here is no duty imposed on the contracting governmental unit to insure that payment bonds are kept current or to warn subcontractors or material suppliers of the expiration of a bond.” The Court, therefore, granted defendant’s motion for summary disposition with regard to the negligence count.
The dissent, however, fails to examine the current statute as a whole. "In every exposition of a statute, the intention of the Legislature is undoubtedly the end to be sought . . . .” Leoni Twp v Taylor, 20 Mich 148, 154-155 (1870). Thus, when legislative intent is clearly revealed in an unambiguous statute, the plain language of the statute must be enforced. Farm Products Co v Jordan, 229 Mich 235, 239; 201 NW 198 (1924). Nevertheless, because "a clause which, standing by itself, might seem of doubtful import, may yet be made plain by comparison with other clauses or portions of the same law,” a fundamental principle of statutory interpretation is that "the whole is to be examined with a view to arriving at the true intention of each part . ...” 1 Cooley, Constitutional Limitations (8th ed), p 127. If judicial construction is necessary, the Court must discern the Legislature’s intent by examining "the object of the statute, the harm which it is designed to remedy, and apply a reasonable construction which best accomplishes the statute’s purpose.” In re Forfeiture of $5,264, 432 Mich 242, 248; 439 NW2d 246 (1989).
Utilizing these principles, an examination of MCL 129.208; MSA 5.2321(8) reveals that it unambiguously provides that a government entity verifies the validity of a payment bond when it provides a certified copy of the bond at the request of a subcontractor. In the instant case, therefore, the statute imposes the risk of the invalidity of such bonds upon the government entity. This interpretation of the statute is aligned with its avowed purpose to protect subcontractors in the absence of mechanics’ liens for public works. Furthermore, the statute’s requirements that the bond be submitted to the government entity, the bond be executed by a validly licensed company, and filed in the office of the government entity, all strongly confirm that the statute imposes upon the government entity the duty to verify the validity of such bonds. To hold otherwise would be to render the statutory requirement of payment bonds meaningless.
In the instant case, plaintiff requested and was provided copies of the bonds nearly a year before the termination of the project, at which time defendant certified that the bonds were properly executed. Plaintiff, therefore, is entitled to proceed on the negligence count because defendant’s provision of the certified copies was prima facie evidence that the bonds were valid, and defendant is liable for the resulting damages stemming from its failure to verify the bonds’ validity.
III
Even though no contract may exist between two parties, under the equitable doctrine of unjust enrichment, "[a] person who has been unjustly enriched at the expense of another is required to make restitution to the other.” Restatement Restitution, § 1, p 12. The remedy is one by which "the law sometimes indulges in the fiction of a quasi or constructive contract, with an implied obligation to pay for benefits received” to ensure that " ’exact justice’ ” is obtained. Detroit v Highland Park, 326 Mich 78, 100; 39 NW2d 325 (1949), quoting Cascaden v Magryta, 247 Mich 267, 270; 225 NW 511 (1929). Because this doctrine vitiates normal contract principles, the courts "employ the fiction with caution, and will never permit it in cases where contracts, implied in fact, must be established, or substitute one promisor or debtor for another.” In the instant case, the Court of Appeals held that summary disposition was correct with regard to this count because "even though the School District received a benefit from the subcontractors, it is not unjust under the circumstances that the benefit be retained.” Viewing the facts in the light most favorable to plaintiff, if reasonable minds could differ over the legal conclusion of the instant case, summary disposition was inappropriate. DiFranco v Pickard, 427 Mich 32, 54; 398 NW2d 896 (1986).
A
The Court of Appeals analysis must be rejected because defendant failed to notify plaintiff of the fraudulent nature of the bonds after it had assured plaintiff the bonds would secure its interests. Defendant was aware over a year before the termination of the contract that Dougherty was failing to compensate plaintiff and other subcontractors, and plaintiff repeatedly informed defendant of its reliance upon the bonds to secure compensation. Indeed, defendant indicated that there was no need to worry because the payment bond protected the subcontractors’ interest. However, defendant knew for approximately seventy-five days that the bonds were fraudulent, and never notified plaintiff until after it terminated its contract with Dough erty. Standing alone, these facts sufficiently support a claim of unjust enrichment. Furthermore, as soon as difficulties arose — nearly a year before the termination of the contract — defendant verified the validity of the bonds by supplying plaintiff with certified copies of the bonds. In these circumstances, regardless of its fulfillment of the contract to the general contractor, once defendant possessed actual knowledge of the invalidity of the bonds and failed to inform plaintiff, reasonable minds could find that defendant was unjustly enriched. Cf. City of Ingleside v Stewart, 554 SW2d 939, 945 (Tex Civ App, 1977).
B
Whether defendant was unjustly enriched before actual knowledge of the invalidity of the bonds is a closer issue. Although plaintiff indirectly provided defendant a benefit, its contract was with Dougherty, and the benefit it provided was in exchange for compensation. The risk of nonpayment could be understood to rest with plaintiff. Moreover, defendant paid the general contractor $1,3 million for the work performed. Plaintiff, however, was permitted to assume the submitted bonds were valid once it received copies of the bonds, and defendant repeatedly assured plaintiff of payment because of the bonds. Hence, equity demands plaintiff be permitted to go forward with this count for those damages that arose after certification of the bonds and verbal assurances of protection by the bonds were given by defendant.
IV
A constructive trust may be imposed "where such trust is necessary to do equity or to prevent unjust enrichment . . . .” Ooley v Collins, 344 Mich 148, 158; 73 NW2d 464 (1955). Hence, such a trust may be imposed when property " 'has been obtained through fraud, misrepresentation, concealment, undue influence, duress, taking advantage of one’s weakness, or necessities, or any other similar circumstances which render it unconscionable for the holder of the legal title to retain and enjoy the property ....’” Potter v Lindsay, 337 Mich 404, 411; 60 NW2d 133 (1953), quoting Racho v Beach, 254 Mich 600, 606-607; 236 NW 875 (1931). Accordingly, it may not be imposed upon parties "who have in no way contributed to the reasons for imposing a constructive trust.” Ooley, supra at 158. The burden of proof is upon the person seeking the imposition of such a trust. MacKenzie v Fritzinger, 370 Mich 284; 121 NW2d 410 (1963). The Court of Appeals held that plaintiff failed to allege sufficient facts necessary to establish such a cause of action.
Plaintiff alleges that defendant " 'misrepresented’ the existence of a payment bond to satisfy subcontractor claims.” Examining the evidence in the light most favorable to plaintiff, defendant verbally assured plaintiff that it was protected by the bonds and certified their validity when it provided certified copies of them. Plaintiff may prove at trial that it would not have continued construction without relying upon this representation. If so, defendant received the benefit of plaintiff’s labor, and a constructive trust could have been established. Hence, the Court of Appeals decision is reversed with regard to this count.
V
Plaintiff further suggests that the Court of Appeals erred in denying its third-party beneficiary claim. MCL 600.1405; MSA 27A.1405 defines third-party beneficiaries and the rights they possess:
Any person for whose benefit a promise is made by way of contract, as hereinafter defined, has the same right to enforce said promise that he would have had if the said promise had been made directly to him as the promisee.
(1) A promise shall be construed to have been made for the benefit of a person whenever the promisor of said promise has undertaken to give or to do or refrain from doing something directly to or for said person.
The Court must objectively determine "from the form and meaning of the contract itself” whether a party is a third-party beneficiary as defined in MCL 600.1405; MSA 27A.1405. Guardian Depositors Corp v Brown, 290 Mich 433, 437; 287 NW 798 (1939).
In the instant case, plaintiff may not recover as a third-party beneficiary because defendant was the promisee of the bonds, not the promisor. The contract between Dougherty and defendant did not contain promises on behalf of plaintiff. In fact, contract provision 1.1.2 explicitly states that "[n]othing contained in the Contract Documents shall create any contractual relationship between the Owner or the Architect and any Subcontractor or Sub-subcontractor.” Quite simply, "plaintiff is asserting the claim against the wrong party.” Reed & Noyce, Inc v Muni Contractors, Inc, 106 Mich App 113, 119; 308 NW2d 445 (1981).
At best, plaintiff is an incidental beneficiary of the general contract. As noted by this Court in Greenlees v Owen Ames Kimball Co, 340 Mich 670, 676; 66 NW2d 227 (1954), plaintiff has no remedy under the contract between Dougherty and defendant:
"An incidental beneficiary has no rights under the contract. A third person cannot maintain an action upon a simple contract merely because he would receive a benefit from its performance or because he is injured by the breach thereof. Where the contract is primarily for the benefit of the parties thereto, the mere fact that a third person would be incidentally benefited does not give him a right to sue for its breach.”
The Court of Appeals dismissal of the third-party beneficiary claim, therefore, is affirmed.
VI
Because we find that MCL 129.201 et seq.; MSA 5.2321(1) et seq. imposes upon a governmental unit the duty to verify the validity of a payment bond furnished by a general contractor of a public works project, we reverse the Court of Appeals affirmance of summary disposition with regard to plaintiff’s negligence count. Similarly, because we find that defendant may have inequitably received the benefit of plaintiff’s labor and materials, we reverse the Court of Appeals affirmance of summary disposition with regard to plaintiff’s unjust enrichment and constructive trust counts. Finally, we affirm the Court of Appeals affirmance of summary disposition with regard to the third-party beneficiary count because plaintiff is not a third party within the meaning of MCL 600.1405; MSA 27A.1405.
Levin, Brickley, Boyle, and Mallett, JJ., concurred with Riley, J.
To avoid confusion, this opinion will utilize the terms governmental unit or entity to encompass not only the contracting governmental unit but also its representatives.
The contract price, adjusted for additional work and change orders, was $1,504,195.36.
MCL 129.201 et seq.; MSA 5.2321(1) et seq.
A performance bond assures completion of a project in the event of default by the general contractor. This type of bond protects the owner of the property.
A payment bond assures payment to subcontractors who furnish supplies, labor, or equipment.
The total general contract price was $1,504,195.36. Before terminating the general contract, defendant disbursed $1,224,370.80 to Dougherty, leaving $279,824.56 remaining.
In a separate proceeding, the trial court implemented defendant’s proposed plan. As a result of the interpleader action, plaintiff received $37,923.64, reducing the amount owed it to $140,000.
The plaintiff’s challenge, regarding its negligence claim, focuses solely on the potential statutory duty delegated by the public works act. Plaintiff has not alleged that defendant acted in a manner that would require application of an exception to the doctrine of governmental immunity. See Richardson v Jackson Co, 432 Mich 377, 387, n 11; 443 NW2d 105 (1989); Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984). We will not address this issue because it is not properly before the Court.
The other subcontractors did not appeal the Court of Appeals holding, therefore, they are not parties to the instant appeal.
See Knapp v Swaney, 56 Mich 345, 347; 23 NW 162 (1885); Ford v State Bd of Ed, 166 Mich 658, 660; 132 NW 467 (1911).
The Court of Appeals has explained:
The necessity for providing some means of protecting contractors, subcontractors, laborers, or materialmen, who perform labor or furnish materials for improvement of real property has • been recognized in this state prior to the time that it was a state. See 2 Territorial Laws 331 (1827). . . .
To [fulfill] the state’s basic policy to protect laborers and materialmen in construction work contracts . . , the Legislature adopted the forerunner of [MCL 129.201 et seq.; MSA 5.2321(1) et seq.]. The purpose of that statute was to provide protection in the construction of public buildings where protection is not afforded by the mechanics’ lien law .... [Milbrand Co v Dep’t of Social Services, 117 Mich App 437, 440; 324 NW2d 41 (1982).]
See also Adamo Equipment Rental Co v Mack Development Co, Inc, 122 Mich App 233, 236; 333 NW2d 40 (1982).
MCL 129.206; MSA 5.2321(6) defines "claimant” to include subcontractors such as plaintiff. MCL 129.207; MSA 5.2321(7) outlines the procedure by which a claimant may recover funds under a payment bond.
MCL 129.203; MSA 5.2321(3), however, mandates that payment bonds need only be posted "in an amount fixed by the governmental unit but not less than twenty-five percent of the contract amount . . . .”
Fischer v City of Negaunee, unpublished opinion per curiam of the Court of Appeals, decided June 9, 1989 (Docket No. 109102).
Unpublished opinion per curiam of the Court of Appeals, decided April 28, 1992 (Docket No. 126596), p 2.
Id.
See also Collins v Secretary of State, 384 Mich 656, 666; 187 NW2d 423 (1971); Joslin v Campbell, Wyant & Cannon Foundry Co, 359 Mich 420, 426; 102 NW2d 584 (1960).
The dissent suggests that the language simply permits a subcontractor to "verify the validity of the payment bond furnished,” post at 201, but MCL 129.208; MSA 5.2321(8) provides that the certified copy is "prima facie evidence of the contents, execution, and delivery of the original.” If the statute was simply furnishing a mechanism for verification of the existence of a bond, it would not mandate that the certified copy was prima facie evidence of its execution and delivery, but would merely ensure that a copy be provided.
On the other hand, if plaintiff had never requested the copies, then it would possess no recourse because the risk of the invalidity would not have been imposed upon defendant. This is a sensible reading of the statute. After nonpayment by a general contractor, if subcontractors are willing to work without at least requesting copies of the bonds, then they assume the risk that no bonds (or invalid bonds) exist. If, however, subcontractors do take steps to ensure a bond exists, MCL 129.208; MSA 5.2321(8) permits subcontractors to presume that the bonds are filed and validly executed.
MCL 129.201; MSA 5.2321(1).
MCL 129.204; MSA 5.2321(4).
MCL 129.205; MSA 5.2321(5).
After noting that MCL 129.201 et seq.; MSA 5.2321(1) et seq. fails to include language from its predecessor, enacted by 1905 PA 187 and codified at MCL 570.101 et seq.; MSA 26.321 et seq., that explicitly provided that "it shall be the duty of the board of officers or agents, contracting on behalf of the [governmental unit], to require sufficient security by bond,” the dissent concludes that the current statute does not impose a statutory duty "to verify the validity of the payment bond furnished by a general contractor of a public works project.” Post at 201. Not only does the dissent fail to examine the current statute as a whole, its heavy reliance upon legislative history is misguided. The Legislature’s failure to provide explicitly for a duty to ensure the validity of the bonds is not controlling. First, the predecessor statute was entirely replaced by the current act. Contrary to the assertions of the dissent, the Legislature did not "remove the words imposing such a duty,” post at 193, but enacted a wholly different statutory framework to supersede the predecessor statute. As acknowledged by the dissent, "the former statute was repealed and 1963 PA 213 [was] enacted in its place . . . .” Post at 194, n 4. Second, the reforms appear to be focused upon eliminating individual liability for the breach of the duty in question. Third, the language, purpose, and structure of the statute reveal that such a duty was intended to exist.
In the instant case, the extent of damages is limited to the facial value of the invalid bond. If no bond existed, then damages would be limited to "25% of the contract amount . . . .” MCL 129.203; MSA 5.2321(3).
Slip op, p 2.
[T]he record clearly reflects that the City was aware that contractor Smith did not have a bond and chose to allow him to continue under his contract. It is entirely reasonable for a subcontractor to assume that the governmental agency, in executing a construction contract . . . will follow the law and require the general contractor to provide a bond. However, if such governmental agency should choose not to require the bond, then it should also not be heard to claim that a subcontractor’s only remedy for nonpayment is against the general contractor on the bond it did not require and that it knew he did not have.
Contrary to the assertions of the dissent, this analysis is independent of the status of the governmental entity, i.e., the city need not step into the shoes of the general contractor ,to be held liable for its failure to ensure a validly executed bond protects the subcontractors.
See Michigan Ass’n of Psychotherapy Clinics v Blue Cross & Blue Shield of Michigan (After Remand), 118 Mich App 505, 518; 325 NW2d 471 (1982).
See also Grasman v Jelsema, 70 Mich App 745, 752; 246 NW2d 322 (1976) ("[a] constructive trust may be based upon a breach of fiduciary or confidential relationship, misrepresentation, concealment, mistake, undue influence, duress or fraud”).
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] |
Griffin, J.
This case requires us to decide whether a person may be convicted under Michigan law of attempted felonious assault. After a bench trial, the judge made findings of fact that would have supported conviction of the completed offense of felonious assault; however, the court found defendant guilty of only an attempt to commit that crime. On appeal the conviction was vacated by the Court of Appeals on the ground that "there is no crime of attempted assault.” We disagree, and therefore reverse the decision of the Court of Appeals.
I
According to defendant Mearl Elton Jones, he believed in October 1988 that he would soon be the victim of a drug-related revenge killing. On October 23, 1988, hoping to elude those he regarded as killers, Jones broke into a stairway leading to the upper apartment of a two-family residence and urgently asked the occupant of the upper flat to call the police. She did so, but refused to allow defendant to enter her living quarters.
Brandishing a pair of scissors, defendant tried to enter through the door, but she quickly closed it. Two Hamtramck police officers soon arrived and attempted to arrest defendant. One of the officers later testified that defendant resisted and, as he was being handcuffed, swiftly moved his arm, directing the scissors in his hand at the officer. Grabbing defendant’s arm, the officer stopped the scissors just inches from his leg and forced him to drop the scissors. Still struggling, defendant was handcuffed and then forced into a police car.
Defendant was charged with breaking and entering, MCL 750.110; MSA 28.305, and two counts of assault with a dangerous weapon (felonious assault), MCL 750.82; MSA 28.277. At the conclusion of a bench trial, Judge William Leo Cahalan found defendant guilty of entry without permission, MCL 750.115; MSA 28.310, a misdemeanor, and of one count of attempted felonious assault. Later, defendant was sentenced to ninety days in jail for entry without permission, and to one to two years’ imprisonment for attempted felonious assault.
At no time during trial or at sentencing did defendant argue that attempted felonious assault is not a crime. However, five months later, defendant sought and obtained an order in the Court of Appeals remanding the case to the trial court to allow him to raise that argument in a motion for a new trial. Defendant’s motion for a new trial on that ground was denied.
Thereafter, the Coürt of Appeals reversed and vacated defendant’s conviction, stating that "there is more support than ever for the position that there is no crime of attempted assault.” 193 Mich App 551, 553; 484 NW2d 688 (1992). We then granted the prosecutor’s application for leave to appeal. 441 Mich 880 (1992).
II
At early common law, "a criminal assault was an attempt to commit a battery and that only.” Perkins, An analysis of assault and attempts to assault, 47 Minn LR 71, 72 (1962). With the passage of time, however, the definition of criminal assault was expanded to accommodate the tort concept of civil assault, "which is committed when one, with intent to cause a reasonable apprehension of immediate bodily harm (though not to inflict such harm), does some act which causes such apprehension.” 2 LaFave & Scott, Substantive Criminal Law, § 7.16, p 315.
Like the courts of our sister states, Michigan courts have struggled with changing definitions of criminal assault. As early as 1880, this Court described the crime as "an inchoate violence to the person of another, with the present means of carrying the intent into effect.” People v Lilley, 43 Mich 521, 525; 5 NW 982 (1880). Shortly after the turn of the century, however, the definition was expanded in People v Carlson, 160 Mich 426, 429; 125 NW 361 (1910):
There are numerous definitions of what constitutes an assault given by courts and text-writers. We cite two, which, taken together, may be said to include all necessary elements:
"An assault is any attempt or offer, with force or violence, to do a corporal hurt to another, whether from malice or wantonness, with such circumstances as denote, at the time, an intention to do it, coupled with a present ability to carry such intention into effect.” 3 Cyc, p 1020.
"An assault is any unlawful physical force, partly or fully put in motion, creating a reasonable apprehension of immediate injury to a human being.” 2 Bishop on Criminal Law (7th ed), § 23.
More recently, in People v Joeseype Johnson, 407 Mich 196, 210; 284 NW2d 718 (1979), this Court ruled that "a simple criminal assault 'is made out from either an attempt to commit a battery or an unlawful act which places another in reasonable apprehension of receiving an immediate battery . . . .’ ” Quoting People v Sanford, 402 Mich 460, 479; 265 NW2d 1 (1978).
The view that there can be no such crime as attempted assault is rooted in semantics and stems from the definition of assault as attempted battery:
As an assault is itself an attempt to commit a crime, an attempt to make an assault can only be an attempt to attempt to do it, or to state the matter still more definitely, it is to do any act towards doing an act towards the commission of the offense. This is simply absurd. [Riley Wilson v State, 53 Ga 205, 206 (1874). See also Perkins, supra at 72.]
Heretofore, our Court has not directly addressed this issue. However, our Court of Appeals on several occasions has considered whether there may be a conviction for an attempted assault. The decisions of that Court generally follow People v Patskan, 29 Mich App 354; 185 NW2d 398 (1971), rev’d on other grounds 387 Mich 701; 199 NW2d 458 (1972), in which a defendant, convicted of assault with intent to rob, argued on appeal that the jury should have been instructed on attempted assault with intent to rob. The Court of Appeals disagreed, holding that because "[a]n assault is defined as an attempt or offer . . . [t]here can be no offense of an attempt to assault, which by definition would include an attempt to attempt or offer.” 29 Mich App 357. See also People v Maxwell, 36 Mich App 127; 193 NW2d 176 (1971); People v Banks, 51 Mich App 685; 216 NW2d 461 (1974); People v Matulonis, 60 Mich App 143; 230 NW2d 347 (1975) (opinions of Bronson and Burns, JJ.); People v LeBlanc, 120 Mich App 343; 327 NW2d 471 (1982); People v Etchison, 123 Mich App 448; 333 NW2d 309 (1983).
In several of the cases cited, however, the Court of Appeals conceded at least the possibility of an attempted assault. For example, in Banks, supra at 689, the panel explained its view that "[i]f an assault is defined as a separate substantive crime with the element of present ability, then an attempt is logically possible. However, if an assault is defined as an attempted battery then the argument in favor of an attempt becomes a logical circle.” The Etchison panel recognized that, in a proper case, an instruction for attempted assault might be given in light of Joeseype Johnson; however, the panel also said that where a defendant is charged with "attempted battery” assault, such an instruction would be inappropriate. 123 Mich App 453.
Not until People v Laster, 169 Mich App 768; 426 NW2d 806 (1988), did the Court of Appeals squarely recognize the crime of attempted assault. In that case, the defendant was charged with assault with intent to rob while armed, and after a waiver trial, was convicted of an attempt to assault with intent to rob while armed. Rejecting the defendant’s contention that his conviction should be set aside because no such offense exists, the Court opined that "an unlawful act which places another in reasonable apprehension of receiving an immediate battery . . . can be 'attempted.’ ” Id. at 771.
However, the Laster holding was effectively overruled by the decision of the Court of Appeals in the case now before us, wherein the panel said,
[A]fter the Joeseype Johnson decision, there is more support than ever for the position that there is no crime of attempted assault. An assault now requires an affirmative act by a defendant, either toward attempting a battery or toward some action that places another in reasonable apprehension of an immediate battery. Under the current definition, there can be no attempted assault that does not also constitute an assault. [193 Mich App 553.]
III
A
Other jurisdictions have considered this issue, and have reached varying results. Some courts have merely applied the rationale of Wilson, supra, to conclude that there can be no conviction of attempted assault. See State v Hewett, 158 NC 627, 629; 74 SE 356 (1912) ("one cannot be indicted for an attempt to commit a crime where the crime attempted is in its very nature an attempt”); White v State, 22 Tex 608, 609 (1858) ("[t]here is no such offense known to the law as 'an attempt to commit an assault, with intent to murder’ ”).
More recently, this issue has been considered in the context of a statute defining assault as an attempted battery. Concluding that there can be no crime of attempted assault under such a statute, the Colorado Supreme Court explained, in Allen v People, 175 Colo 113, 116-117; 485 P2d 886 (1971):
[T]he commission of a criminal attempt under our statutes requires the intent to commit a specific crime. Attempting an assault would require a person to intend to "attempt . . . with present ability to commit a violent injury on the person of another.” Perhaps philosophers or metaphysicians can intend to attempt to act, but ordinary people intend to act, not to attempt to act.
In reaching a similar result, the California Supreme Court focused on the lack of any explicit direction from the Legislature. In re James M, 9 Cal 3d 517, 521; 108 Cal Rptr 89; 510 P2d 33 (1973). While acknowledging that "the abstract concept of an attempted assault is not necessarily a logical absurdity,” the court saw in the absence of any express mention of attempted assault "a clear manifestation of legislative intent ... for an attempt to commit a battery without present ability to go unpunished.” Id. at 522.
On the other hand, courts in some jurisdictions have upheld convictions of attempted assault charges. In People v O’Connell, 60 Hun 109, 112-113; 14 NYS 485 (1891), the defendant was charged with "feloniously making an assault with an axe upon [the victim], and striking, beating, cutting and wounding him, and thereby intending to kill him.” The New York court affirmed a plea-based conviction of attempted felonious assault over the defendant’s argument that such a crime did not exist. The court explained:
To make the assault itself it was necessary that he should be so near as to be able to strike him, and should attempt to do so. To make an attempt to assault him required no more than that he should arm himself with the axe and endeavor to place himself in the position to use it by executing his intention to kill. There is a clear distinction between these cases. The first would be the crime itself, the other an attempt to commit it, and that would bring the defendant within the range of the indictment, which included all attempts to commit the assault. [Id. at 115.]
More recently, the Oregon Supreme Court reached the same result in State v Harvey Wilson, 218 Or 575, 578; 346 P2d 115 (1959). There, the defendant, who one day earlier had told his estranged wife that he was giving her just twenty-four hours to live, approached her in a laundry room and said, "This is it.” His wife ran from the room and called the police. The defendant, meanwhile, had armed himself with a loaded shotgun and returned to the laundry room, holding the gun in a shooting position. Not finding his wife, he left the building and was immediately apprehended by police.
The court, recognizing Oregon precedent that defined assault as "attempted battery,” was unwilling to find that there could be no crime of attempted assault. Rather, the court explained:
The mere fact that assault is viewed as preceding a battery should not preclude us from drawing a line on one side of which we require the present ability to inflict corporal injury, denominating this an assault, and on the other side conduct which falls short of a present ability, yet so advanced toward the assault that it is more than mere preparation and which we denominate an attempt. [Id. at 588.]
The court affirmed the defendant’s conviction for attempted felonious assault of his wife, recognizing that his conduct had advanced beyond the mere preparation stage, but did not constitute a completed felonious assault. It reasoned:
Our legislature has provided that assault with a dangerous weapon is a crime. ORS 161.090[ ] permits the courts of this state to treat conduct which is short of statutory crimes as a crime, and we regard an attempt to commit an assault as within the intendment of this statute. . . . The contrary view is little more than a barren logical construction. The recognition of the crime of attempted assault where assault is viewed as a separate substantive crime rather than as an attempted battery indicates that there is no policy against punishing a person who engages in conduct short of an assault. No different policy considerations are presented merely because we view assault as an uncompleted battery rather than as a distinct crime. [Id. at 590.]
The courts in O’Connell and Harvey Wilson, supra, found that attempted felonious assault was a viable charge even where a completed assault is defined as an attempted battery. In State v Music, 40 Wash App 423, 432; 698 P2d 1087 (1985), a Washington court explained that there is no logical barrier to a conviction for attempted assault where the "apprehension-type” assault is recognized: "[S]ince there is no attempt element in the second type of assault, a charge of attempted assault within that definition is not an 'attempt to attempt.’ There is no logical conflict in charging one with attempting to put another in apprehension of harm.”
B
In the case now before us, our Court of Appeals reasoned that there could be no attempted assault that is not also a completed assault: "The actions that could have formerly constituted an attempted assault are now included within the definition of assault.” 193 Mich App 553. We disagree with this analysis as it applies to felonious assault.
The crime of felonious assault did not exist at common law, but was included in the Penal Code when "the Legislature created a series of more serious or 'aggravated’ offenses . . . Joeseype Johnson, supra at 220-221 (opinion of Williams, J.). Felonious assault is defined as a simple assault aggravated by the use of a weapon. Id. at 222 (opinion of Williams, J.), 234-235 (opinion of Levin, J.). As such, it includes the element of present ability or apparent present ability to commit a battery. See Sanford, supra at 474-479; see also CJI2d 17.1.
An attempt consists of: "(1) an intent to do an act or to bring about certain consequences which would in law amount to a crime; and (2) an act in furtherance of that intent which, as it is most commonly put, goes beyond mere preparation.” 2 LaFave & Scott, Substantive Criminal Law, § 6.2, p 18; see also People v Adams, 416 Mich 53, 58, n 5; 330 NW2d 634 (1982). Mere preparation is distinguished from an attempt in that the former consists of making arrangements or taking steps necessary for the commission of a crime, while the attempt itself consists of some direct movement toward commission of the crime that would lead immediately to the completion of the crime. People v Pippin, 316 Mich 191, 195; 25 NW2d 164 (1946).
In line with this reasoning, we see no logical impediment to a conviction for attempted felonious assault where the accused intends, while armed with a dangerous weapon, to cause another to reasonably fear an immediate battery. Moreover, unlike the California court in In re James M, supra, we do not discern any intent on the part of our Legislature to preclude a conviction for attempted felonious assault.
Defendant in this case contends that to allow a conviction for attempt to assault would create a new category of crimes consisting of nothing more than breathing or moving (presumably with the requisite criminal intent). Whatever the weight such an argument might carry when considering a charge of attempted simple assault, we find it without merit when a defendant is charged with attempted felonious assault that requires possession of a dangerous weapon.
Relying on Banks, supra at 688, defendant also argues that the general attempt statute, which "applies only 'when no express provision is made by law’ ” for the punishment of such attempt, MCL 750.92; MSA 28.287, should preclude punishment for attempted felonious assault because an attempted battery without a weapon is punishable as an assault, and possession of a weapon without an assault is punishable as unlawful possession of a weapon.
While we agree that there can be no attempted felonious assault in the absence of a dangerous weapon, we do not agree that unlawful possession of a weapon necessarily encompasses the elements of attempted felonious assault. Nor do we agree that a statutory prohibition against unlawful use of a weapon constitutes an "express provision” for punishment of attempted felonious assault; such reasoning would appear to preclude a conviction under the general attempt statute any time a dangerous weapon is used. Thus, we find that conviction on a charge of attempted felonious assault is not precluded by the language of the general attempt statute.
IV
In this case the trial court found:
[T]hat the defendant committed an assault and he either did commit that battery upon the officer ... or did an unlawful act, which caused the officer to reasonably fear or apprehend an immediate battery.
Second, that the defendant either intended to injure or intended to place the officer in reasonable fear or apprehension [of] receiving an immediate battery.
Third, that the defendant had the present ability to commit a battery, appeared to have the present ability or thought that he had the present ability to commit a battery.
And, lastly, that the defendant attempted to commit the assault by use of a pair — a dangerous weapon, that is, a pair of scissors.
These findings indicate that defendant could have been convicted of a completed felonious assault.
At common law, a defendant charged with the commission of a crime could not be convicted of an attempt to commit that crime; and some courts have held that where the proofs establish a completed crime, the defendant may not be convicted of only an attempt to commit that crime. LaFave & Scott, supra, § 6.3, pp 57-59. The long-established rule in Michigan, however, is that a defendant may be convicted of an attempt even where the evidence shows a completed crime. People v Bradovich, 305 Mich 329; 9 NW2d 560 (1943); People v Genes, 58 Mich App 108; 227 NW2d 241 (1975). The rationale for this rule was explained in United States v York, 578 F2d 1036, 1039 (1978), cert den 439 US 1005 (1978), quoting United States v Fleming, 215 A2d 839, 840-841 (DC App, 1966) (citations omitted):
To compel acquittal of an attempt because the completed offense was proved would result in the "anomalous situation of a defendant going free 'not because he was innocent, but for the very-strange reason, that he was too guilty.’ ” Moreover, requiring the government to prove failure as an element of attempt would lead to the anomalous result that, if there were a reasonable doubt concerning whether or not a crime had been completed, a jury could find the defendant guilty neither of a completed offense nor of an attempt. Therefore, every court, not otherwise bound by statute, that has considered the matter in recent years has refused to require that a defendant be acquitted of an attempt because he was guilty of completing what he had set out to do.
This rule is reflected in CJI2d 9.1(4), which informs the jury upon instruction by the trial court in a proper case that it "may convict the defendant of attempting to commit [the crime charged] even if the evidence convinces you that the crime was actually completed.”
Thus, in this case, defendant was properly convicted of attempted felonious assault even though the evidence shows a completed felonious assault.
v
For the reasons stated, we hold that the crime of attempted felonious assault does exist under Michigan law and that a defendant may be convicted of attempted felonious assault even though the evidence shows a completed felonious assault. Thus, we reverse the decision of the Court of Appeals and reinstate the judgment of the trial court.
Cavanagh, C.J., and Levin, Brickley, Boyle, Riley, and Mallett, JJ., concurred with Griffin, J.
Any person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act towards the commission of such offense, but shall fail in the perpetration, or shall be intercepted or prevented in the execution of the same, when no express provision is made by law for the punishment of such attempt, shall be punished as follows .... [MCL 750.92; MSA 28.287.]
Any person who shall assault another with a gun, revolver, pistol, knife, iron bar, club, brass knuckles or other dangerous weapon, but without intending to commit the crime of murder, and without intending to inflict great bodily harm less than the crime of murder, shall be guilty of a felony. [MCL 750.82; MSA 28.277.]
193 Mich App 551, 553; 484 NW2d 688 (1992).
At least one commentator has noted that the common-law definition of assault was not quite as precise as Perkins believes; however, it seems that most definitions of common-law criminal assault included at least an intent to commit a battery and some act toward the completion of that intention. See Byrn, Assault, battery and maiming in New York: From common law origins to enlightened revision, 34 Fordham L E 613, 617-628 (1966).
In People v Patskan, 387 Mich 701, 711; 199 NW2d 458 (1972), this Court expressly declined to address the issue, choosing instead to decide that case on other grounds. Nevertheless, four members of the Court, in two separate opinions, stated the view that in Michigan there is no such crime as attempted assault. Id. at 716 (opinion of T. G. Kavanagh, J., Williams, J., concurring), 717 (opinion of Black, J., Brennan, J.,.concurring). Because the case was decided on other grounds, the statements concerning the issue may be regarded as dicta.
Except in this Court, the decision is binding precedent under Administrative Order No. 1990-6, 436 Mich lxxxiv.
See anno: Attempt to commit assault as criminal offense, 79 ALR2d 597, 598-600.
This conundrum does not arise in jurisdictions, such as New York, where "assault” is defined by statute to require the infliction of physical injury. See NY Penal Law, § 120.00 et seq. As one commentator has explained, “[u]nlike the common law, the sine qua non of assault is that, at the least, the actor must cause injury. Assaultive conduct which fails to cause injury may constitute such crimes as attempted assault, reckless endangerment, sexual abuse, or harassment.” NY Penal Law, § 120.00 et seq., Practice Commentaries. Thus, an attempted assault would be committed where one person strikes another without causing physical injury. See People v Williams, 120 Misc 2d 68, 71-72; 465 NYS2d 648 (1983).
In Florida, an assailant may be convicted of attempted assault where the victim is stabbed in the back, but had no knowledge, and thus no reasonable apprehension, of the impending attack. Edwards v State, 338 So 2d 84, 85 (Fla App, 1976). This is so because an earlier case defined assault "as a wrongful action creating a fear of imminent bodily harm coupled with an apparent present ability to inflict injury.” State v White, 324 So 2d 630, 631 (Fla, 1976). See also Fla Stat Ann 784.011(1): "An 'assault’ is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.”
Quoting Colo Rev Stat 1963, 40-2-33. Colorado now defines assault to require, in most instances, the infliction of physical injury. Colo Rev Stat Ann 18-3-202 et seq. However, under the current statute, a person commits second-degree assault where, "[w]ith intent to cause bodily injury to another person, he causes or attempts to cause such injury to any person by means of a deadly weapon . . . .” Colo Rev Stat Ann 18-3-203(l)(b).
In California, assault is defined as "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” Cal Penal Code 240.
See also People v Duens, 64 Cal App 3d 310; 134 Cal Rptr 341 (1976).
Assault is now defined by statute in Oregon, and requires the presence of physical injury. Or Rev Stat 163.160 et seq.
Any person who attempts to commit a crime, and in the attempt does any act towards the commission of the crime but fails or is prevented or intercepted in the perpetration thereof, shall be punished upon conviction, when no other provision is made by law for the punishment of such attempt .... [218 Or 580.]
One early commentator maintained that conviction for an attempt is appropriate where the charged conduct includes elements of an aggravated assault:
It is academic to call such cases "wrong” because assault is in the nature of an attempt and hence cannot be attempted, particularly when a common sense result is reached. In short, the generalization that there can be no attempt at a crime in the nature of an attempt tells us nothing and tends merely to divert the court’s mind from the real issue. [Arnold, Criminal attempts — The rise and fall of an abstraction, 40 Yale L J 53, 65 (1930).]
Thus, it has been convincingly argued that felonious assault should be considered a separate substantive offense and not merely an "uncommitted battery.” Perkins, supra at 87.
The case we decide today involves the use of a dangerous weapon. Because it is not necessary to our analysis, we do not decide whether there can be an attempted simple assault.
See People v LeBlanc, supra at 348-349 (Riley, J., concurring); see also State v Music, supra at 432.
See, e.g., MCL 750.226; MSA 28.423:
Any person who, with intent to use the same unlawfully against the person of another, goes armed with a pistol or other firearm or dagger, dirk, razor, stiletto, or knife having a blade over 3 inches in length, or any other dangerous or deadly weapon or instrument, shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 5 years or by a fine of not more than 2,500 dollars.
Conviction of possession of a weapon with unlawful intent requires only that the defendant possess the weapon with the intent to use it illegally against another person.
Defendant argues that the trial court expressly found only a simple assault, a misdemeanor. MCL 750.81; MSA 28.276. We dis agree. The finding that defendant "attempted” to use a dangerous weapon, although perhaps unartfully stated, clearly elevates this assault to the level of a felonious assault.
A trial court is not required to instruct on attempt in every case, however, because an attempt is not a necessarily included offense of the substantive crime, but is, rather, a cognate offense. People v Adams, 416 Mich 53, 56; 330 NW2d 634 (1982). | [
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The stay granted pursuant to MCR 9.122(C) is to remain in effect until twenty-one days after the effective date of this order. | [
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Mallett, J.
The dispositive issue in this case is whether the probate court’s assumption of subject matter jurisdiction over a minor child may be challenged by the child’s parent after a termination decision and, if so, whether the entire termination proceedings should be declared void ab initio. In the instant case, we find that the probate court properly assumed jurisdiction and that the parents’ collateral attack on the court’s subject matter jurisdiction was invalid. Therefore, we reverse the Court of Appeals decision and remand this case for consideration of the other issues that were not addressed.
I. FACTS
James Hatcher, Jr., was born on November 7, 1988. On the day of the child’s birth, the police arrested the father, James Hatcher, Sr., while he was attempting to visit the newborn in the hospital, for drunk and disorderly conduct and for possession of marijuana. Revender Harris, the child’s mother, suffered from a mental illness that made her unable to care for the infant.
The Department of Social Services was aware of the instability of the infant’s family. Subsequently, the parents voluntarily placed the child with his paternal grandmother until June of 1989. At that time, doctors had medicated Revender Harris and had sufficiently stabilized her mental condition so that she could care for her child. By August, however, the mother stopped taking her medications and failed to keep her appointments at Muskegon Community Mental Health, and her mental condition gradually began to deteriorate. When her condition became critical, shortly after the infant’s first birthday, the dss petitioned for temporary wardship of the child.
The petition alleged that Revender Harris’ chronic mental illness prevented her from properly caring for the child and that the father’s drug and alcohol, abuse problems rendered the child’s home unfit. The petition also alleged that the father left the child alone with the mother even though he knew that she could not adequately care for the infant.
On November 15, 1989, the Muskegon Probate Court held a preliminary hearing on the petition. Neither parent attended the hearing, although both had received notice of it. During the hearing, the referee read the petition into the record, and Rikki Harris, a dss social worker, testified regarding the facts alleged in the petition. Gerald Gibbs, counsel for the child, testified that neither parent appeared fit to rear the child and recommended continued placement with the paternal grandmother. Considering the verified petition and the testimony, the referee authorized the filing of the petition with a finding of probable cause that the allegations were true. He also found that reasonable efforts had been made to avoid placement and that releasing the child to the parents would present a substantial possibility of harm to the infant. Finally, the referee approved continued temporary placement with the paternal grandmother.
The probate court held the initial trial on January 12, 1990. At this time, both the mother and the father stipulated that the infant should become a temporary ward of the court and that placement should change from the paternal to the maternal grandmother. The court proceeded by the parties’ stipulation and did not take testimony from either parent, each of whom was represented by counsel. After the trial, review hearings were held on April 17, 1990, July 10, 1990, and October 30, 1990. At no point during these pro ceedings did Hatcher challenge the jurisdiction of the court.
On January 28, 1991, the court conducted a permanency planning hearing. The court received overwhelming evidence of the mother’s mental illness and her incapacity to care for the infant. Testimony regarding the father revealed that Maurdell Harris, Revender’s mother, had custody of Revender’s and James’ two older daughters, Angel and Shamier. Linda Harris, Revender’s sister, and Maurdell testified that they had repeatedly received lewd telephone calls from the father in which he indicated that he wanted to "swap” custody of his infant son for his older daughter, Shamier. The father indicated he wanted custody of his nine-year-old daughter so that he could engage in sexual relations with her.
Testimony was also offered that the father admitted to using cocaine. A substance abuse therapist who examined the father testified that he was cooperative when questioned concerning his use of drugs and alcohol. The therapist noted, however, that he skirted a number of issues regarding his substance abuse assessment. The therapist opined that the father minimized his use of alcohol and recommended a four- to six-month out-patient therapy program. Although the father attended a few of these sessions, the therapist stated that he did not fully acknowledge the severity of his drug abuse problem.
Further testimony revealed that the father had done little to establish a parent-child relationship with James Hatcher, Jr. Although the case began in late 1989, the father did not begin cooperating with the dss until January of 1991. A dss worker testified that the father rarely visited the child. Often, visits were scheduled but later canceled. Finally, caseworkers testified that although Hatcher was aware of the mother’s mental illness and inability to care for the infant, he nevertheless left the child alone with her.
In its ruling, the probate court terminated the parental rights of the mother and the father. Although the mother did not appeal, the father’s appeal raised three issues. The Court of Appeals addressed one of these issues and reversed in an unpublished one-page per curiam opinion. The panel held that the termination proceedings were void ab initio, that the probate court never assumed valid subject matter jurisdiction over the child. Although the parties attempted to establish jurisdiction by stipulation, neither parent stipulated to facts that supported a statutory basis for jurisdiction. The panel indicated that it was bound by precedent to hold that the failure to establish a sufficient factual basis for probate subject matter jurisdiction renders subsequent proceedings void ab initio. See In re Waite, 188 Mich App 189, 208; 468 NW2d 912 (1991); In re Nelson, 190 Mich App 237, 241-242; 475 NW2d 448 (1991). The Court did not address respondent’s remaining two issues. On August 7, 1992, the guardian ad litem for the child filed a delayed application for leave to appeal with this Court.
II
Michigan’s Constitution vests probate courts with original subject matter jurisdiction over juvenile dependents, except as otherwise provided by law. Const 1963, art 6, § 15. The courts, by rule or otherwise, may not enlarge or diminish this jurisdiction. In re Kasuba Estate, 401 Mich 560, 566; 258 NW2d 731 (1977). Moreover, subject matter jurisdiction cannot be conferred on the court by the consent of parties. Lehman v Lehman, 312 Mich 102, 106; 19 NW2d 502 (1945). The court must make its own determination regarding the existence of a statutory basis for jurisdiction.
MCL 712A.2(b)(2); MSA 27.3178(598.2)(b)(2) provides the probate court with "^jurisdiction in proceedings concerning any child under 18 years of age found within the county . . . [wjhose home or environment, by reason of neglect, cruelty, drunkenness, criminality, or depravity on the part of a parent, guardian, or other custodian, is an unfit place for the child to live in.” Within the context of subsection (b)(2), the term "jurisdiction” refers to the probate court’s authority to hear and decide a case on the basis of a finding of fact that the child belongs to the class of children over whom the court has the power to act. In short, a juvenile court must determine that the facts of a particular case place a child within the specific provisions of subsection (b)(2).
The analysis of whether a child falls within the juvenile court’s jurisdiction begins with the court’s preliminary proceeding. A petition forms the basis of any preliminary action by the court. It is the initial request for judicial action against a juvenile or for the protection of the child. As defined in the Michigan Court Rules, a petition is a verified complaint or other written accusation. It is to be filed with the court and to set forth charges against a parent, custodian, or child with ample clarity and specificity to reasonably appraise them of the matters under consideration before the court. If the petition does not request placement of the child, the court may conduct a preliminary inquiry, as opposed to the preliminary hearing. MCR 5.962(A). The inquiry consists of an informal review of the petition by the juvenile court to determine an appropriate course of action. MCR 5.903(A)(17). A preliminary hearing is the formal review of the petition when the judge or referee considers authorizing the petition and placing the case on the formal calendar.
At the preliminary hearing, probate courts re quire a finding of probable cause to substantiate that the facts alleged in the petition are true and that if proven at trial would fall under subsection (b)(2). When a court authorizes a petition for jurisdiction during the preliminary hearing, generally, it will issue a preliminary order that specifies a plan for temporary placement. The adjudicative phase follows the preliminary hearing. At this stage, the court weighs the evidence to determine whether the child is neglected within the meaning of subsection (b) and then orders the disposition or placement that comports with the child’s best interests.
When the probate court has established temporary jurisdiction over a child, an erroneous exercise of that jurisdiction may be challenged at any of the mandatory review hearings. MCL 712A.19; MSA 27.3178(598.19). A parent is also entitled to request a rehearing not later than twenty days after an order terminating parental rights and removing the child from parental custody, or at any time the court has jurisdiction over the child. MCL 712A.21; MSA 27.3178(598.21). A probate court can also enter an order for supplemental disposition as long as the child remains under the court’s jurisdiction. Id. These statutory safeguards ensure the parent, guardian, or custodian time to review and even challenge a court’s exercise of its jurisdiction.
III
The respondent-father has attempted to restore his parental rights, which were terminated on the basis of the findings at the permanent wardship trial. The respondent brings this appeal from the termination order, but he collaterally attacks the subject matter jurisdiction of the earlier proceeding at which the Muskegon Probate Court made his child its temporary ward. The father failed to challenge the temporary wardship decision in the initial proceedings. Consequently, the first issue we must address is what invoked the probate court’s subject matter jurisdiction.
The father insists that the probate court did not establish any facts at the hearing to justify the temporary wardship. He argues that a party’s consent to the creation of a temporary wardship is insufficient to establish the court’s subject matter jurisdiction. In re Youmans, 156 Mich App 679; 401 NW2d 905 (1986). Therefore, according to respondent, a court must independently determine, through testimony from the parent, whether the allegations in a petition are true and whether these allegations are sufficient to permit a court to assume subject matter jurisdiction. In re Arntz, 125 Mich App 634; 336 NW2d 848 (1983), rev’d on other grounds 418 Mich 941; 344 NW2d 1 (1984). The respondent contends that without an independent judicial determination, the probate court lacked subject matter jurisdiction, and, thus, the later termination proceedings were void ab initio. In re Youmans, supra.
We hold, however, that the probate court’s subject matter jurisdiction is established when the action is of a class that the court is authorized to adjudicate, and the claim stated in the complaint is not clearly frivolous. The valid exercise of the probate court’s statutory jurisdiction is established by the contents of the petition after the probate judge or referee has found probable cause to believe that the allegations contained within the petitions are true. Here, the petition alleged neglect, criminality, drunkenness, and a failure to maintain proper custody and guardianship of the infant. When the referee considered the facts alleged in the petition and the testimony presented, he found probable cause that the allegations were true. Consequently, it was proper for the court to invoke its jurisdiction, assuming the court also had jurisdiction of the parties, a fact not here in dispute. Procedural errors that may have occurred did not affect the probate court’s subject matter jurisdiction.
Although neither the mother nor the father stipulated facts that supported the court’s jurisdic tion, this jurisdiction is initially established by pleadings, such as the petition, rather than by later trial proceedings that may establish by a preponderance of the evidence that a child is within the continued exercise of the probate court’s subject matter jurisdiction. In re Mathers, 371 Mich 516, 528-529; 124 NW2d 878 (1963). The father’s arguments address the procedure by which the probate court proceeded after it had established subject matter jurisdiction on the basis of a validly filed petition. The respondent could have appealed the court’s exercise of its statutory jurisdiction by challenging the sufficiency of the petition and the temporary wardship. MCR 5.993. See also MCL 600.861 and 600.863; MSA 27A.861 and 27A.863. Alternatively, he could have pursued a number of statutory proceedings designed to redress an erroneous exercise of jurisdiction. He chose not to do so, however, and instead agreed to the placement of the child with the maternal grandmother.
It is beyond question that a party may attack subject matter jurisdiction at any time. Shane v Hackney, 341 Mich 91; 67 NW2d 256 (1954). In fact, a proven lack of subject matter jurisdiction renders a judgment void. In re Hague, 412 Mich 532; 315 NW2d 524 (1982). Here, however, the respondent confuses the distinction between whether the court has subject matter jurisdiction and whether the court properly exercised its discretion in applying that jurisdiction. As explained in Jackson City Bank & Trust Co v Fredrick, 271 Mich 538, 545-546; 260 NW 908 (1935),
"Want of jurisdiction must be distinguished from error in the exercise of jurisdiction. Where jurisdiction has once attached, mere errors or irregularities in the proceedings, however grave, although they may render the judgment erroneous and subject to be set aside in a proper proceeding for that purpose, will not render the judgment void, and until set aside it is valid and binding for all purposes and cannot be collaterally attacked. Error in the determination of questions of law or fact upon which the court’s jurisdiction in the particular case depends, the court having general jurisdiction of the cause and the person, is error in the exercise of jurisdiction. Jurisdiction to make a determination is. not dependent upon the correctness of the determination made.” 33 CJ, pp 1078, 1079.
The reasoning of Jackson City Bank has been followed by a number of Michigan courts since its decision in 1935. Bowie v Arder, 441 Mich 23; 490 NW2d 568 (1992); Buczkowski v Buczkowski, 351 Mich 216, 222; 88 NW2d 416 (1958); Harmsen v Fizzell, 354 Mich 60, 63; 92 NW2d 631 (1958); Banner v Banner, 45 Mich App 148, 152-155; 206 NW2d 234 (1973).
Generally, lack of subject matter jurisdiction can be collaterally attacked and the exercise of that jurisdiction can be challenged only on direct appeal. Life Ins Co of Detroit v Burton, 306 Mich 81; 10 NW2d 315 (1943); Edwards v Meinberg, 334 Mich 355; 54 NW2d 684 (1952).
Where the probate court erroneously exercises its jurisdiction, the error is analogous to a mistake in an information or in binding over a criminal defendant for trial. Such an error can, of course, be challenged in a direct appeal. It cannot, however, be challenged years later in a collateral attack. If such a delayed attack were always possible, decisions of the probate court would forever remain open to attack, and no finality would be possible. [In re Adrianson, 105 Mich App 300, 309; 306 NW2d 487 (1981).]
One exception to this general rule has been Fritts v Krugh, 354 Mich 97; 92 NW2d 604 (1958). Although the instant Court of Appeals decision relies on Fritts to substantiate its holding, Fritts is distinguishable. In Fritts, the Court held that a judgment of permanent wardship could be collaterally attacked on the basis of a lack of subject matter jurisdiction if a legally sufficient petition created a permanent wardship with no evidentiary basis to support the decision. Fritts involved a father who abandoned his wife and two children. Subsequently, the children’s mother decided that she could not care for them and requested the probate court to begin adoption proceedings. Between the filing of the petition for adoption and the hearing, the parents reconciled. They asked the court to return the children and insisted that they never agreed to the court’s exercise of subject matter jurisdiction.
In its reasoning, the Fritts Court attempted to correct what it perceived to be a gross lack of procedural due process. The mother attempted to withdraw the adoption petition and both parents disputed the finding of neglect, but were precluded from presenting evidence supporting their position. To remedy the situation, the Court permitted collateral attack on the exercise of jurisdiction. It held that the probate court lacked subject matter jurisdiction until sufficient facts had been established by competent evidence to support the petition. It blurred the distinction between the existence of subject matter jurisdiction and the exer cise of that jurisdiction to justify the collateral attack. It held that the probate court abused its power and that the lack of a proper direct appeal was a mere technicality.
There are factual distinctions between Fritts and the instant case. First, in Fritts, the parents disputed the allegations of neglect. The complexity of the issues confronting the Fritts Court led the majority to attach an addendum to its opinion that reemphasized a number of key points. It stressed that on the day of the probate court hearing,
[t]here was a sworn complaint. Its allegations of neglect and dependency were disputed by the parents who, reunited, were present in the courtroom to contest it. . . . Nothing resembling legal evidence was offered to establish abuse of or neglect of the children. . . . We reiterate that where the fundamental facts of neglect are in dispute, our Constitution and statute require some legal evidence to support the court’s assertion of jurisdiction. [Id. at 118.]
In the instant case, the respondent did not dispute the petition’s contents and in fact agreed with the out-of-home placement.
Second, in drafting its holding, the majority in Fritts apparently neglected its own reasoning and required evidentiary facts to support an exercise of subject matter jurisdiction and not the existence of that jurisdiction. The confusion in Fritts is evidenced by the language of the Court, which initially held that the probate court had subject matter jurisdiction. In the words of the Court,
We believe the probate court had jurisdiction of the persons and the subject matter for purposes of hearing the neglect complaint. The children resided in the county concerned. The essential par ties had notice. The mother’s petition in the instant case served to allege neglect and dependency of the 2 children. The essential facts alleged were the father’s abandonment of her and them, the break-up of the family and the absence of any support for the children. [Id. at 111.]
Yet, despite this initial finding of subject matter jurisdiction, the majority opined that the probate judge had insufficient evidence of neglect to enter an order of permanent custody and therefore held that "the orders entered by the probate judge taking permanent custody of these children were void for want of proof of essential jurisdictional facts of neglect.” Id. at 115. This proposition runs counter to the weight of legal reasoning regarding subject matter jurisdiction.
A dissenting opinion in Fritts severely criticized the majority’s confused holding, stressing that
when all is said and done . . . the decision of the probate judge upon the issue of neglect remains a matter to be corrected if in error, but not of jurisdiction. If he is wrong, if he makes a mistake, indeed, if he blunders, it is only that and nothing more. If he has jurisdiction of the parties and of the subject matter he does not lose it by making a mistake, for he has jurisdiction to make mistakes.
"By way of further clarification of the meaning of the act we comment upon an argument of the appellant: It is said in the appellant’s brief: 'Jurisdiction of the juvenile court under the act ... is dependent upon the evidence and in this case the evidence shows no such lack of parental care and support as would give the juvenile court jurisdiction to make appellant a ward of the court.’ And throughout the oral argument of the appellant it was insisted that the juvenile court was without 'jurisdiction’ to make the order appealed from.
"While it is sometimes loosely said that a court has no 'jurisdiction’ to make an order not supported by the evidence necessary to prove the cause of action set forth in the complaint which invokes the action of the court, it is important to point out, for the sake of clarity in respect of the power of the juvenile court, that in the proper sense of the word jurisdiction a court has jurisdiction, in the sense that its erroneous action is voidable only and not void, when the parties are properly before it, the proceeding is of a kind or class which the court is authorized to adjudicate, and the claim set forth in the complaint is not obviously frivolous. ... In this proper sense of the word jurisdiction the juvenile court in the instant case had jurisdiction to make the order appealed from. The parties were before it, the case described in the petition was within the class of cases which the act gives the court, power to deal with — to-wit, a case involving a question of adequate parental care of a person under the age of 18 — and the petition on its face stated a cause of action. That the evidence failed to support the petition did not aifect the jurisdiction of the court, in the proper sense of the term, to hear the cause and to make the order. But it did, as we have pointed out above, make the action of the court erroneous and subject to reversal on appeal.”
A court, having jurisdiction, does not lose it by erroneously charging, by erroneously directing a verdict, or as here by (allegedly) erroneously entering an order respecting custody.
The sun will not set on this day before we will be forced to devise ways first to distinguish, then to repudiate, then to bury, this case as authority. No court can live with the proposition that jurisdiction to hear and decide depends upon evidence sufficient to justify the remedy prayed, for we do not reach the question of remedy in the matter before us until we have crossed the bridge of jurisdiction. [Id. at 129-133. Emphasis in original.]
Despite the factual similarities between Fritts and the instant case, the faulty reasoning advanced in Fritts is directly at odds with that of Jackson City Bank & Trust and its progeny.
Therefore, we overrule Fritts, and rule that a court’s subject matter jurisdiction is established when the proceeding is of a class the court is authorized to adjudicate and the claim stated in the complaint is not clearly frivolous. The probate court’s valid exercise of its jurisdiction is determined from the petition after the probate judge or referee has found probable cause to believe that the allegations contained within the petition are true. Our ruling today severs a party’s ability to challenge a probate court decision years later in a collateral attack where a direct appeal was available. It should provide repose to adoptive parents and others who rely upon the finality of probate court decisions. Because the Court of Appeals did not act on the two remaining issues, we remand this case to that Court to address those issues.
Cavanagh, C.J., and Levin, Brickley, Boyle, Riley, and Griffin, JJ., concurred with Mallett, J.
The petition, in part, read as follows:
Citations and allegations: Said child’s home by reason of neglect, is an unfit place for said child to live in, in that the said child’s mother, Revender Harris, is mentally ill and not in touch with reality unless consistently medicated. She has not taken her prescribed medications since August 1989, and, on 11-9-89, refused an injection prescribed by her psychiatrist. Due to her current mental state, she is unable to care for said child.
Further, Ms. Harris has a history of involuntary hospitalizations for mental illness. Two older children were placed and continue to reside with relatives due to Ms. Harris’ mentad instability. Protective Services involvement from November 1988, through June 1989, resulted in temporary placement of said child with a relative until Ms. Harris’ condition was stabilized.
Said child’s father, James Hatcher Sr., has a history of substance abuse and drunk and disorderly behavior. In February 1989 he was convicted of possession of marijuana. Further, on 11-9-89 Mr. Hatcher was told by Protective Services and Dr. Ragú, M.D., that Revender Harris should not be left at home alone with their son. Despite that warning, Mr. Hatcher thereafter on 11-14-89 left Ms. Harris home alone with the child for at least one hour. Upon return to the residence, he had alcohol on his breath.
At this hearing, the dss recommended that the infant remain a temporary ward of the court and continue his placement with his maternal grandmother. The dss proposed a parent-agency agreement as the basis upon which the court would review the child’s wardship in future proceedings. Under this tentative plan, both parents would seek counseling regarding child rearing and the father would seek counseling for substance abuse. The dss recommended that if the parents complied with the agreement, then the child could be reunited with his parents. The court agreed with these recommendations and allowed the father to arrange visits with his son through the agency.
On this date, the court heard testimony from dss caseworkers who indicated that the father had pleaded guilty of attempted assault with a dangerous weapon, but had been released on bond. The testimony revealed that although the father did not want to terminate his parental rights to the child, he refused to comply with the proposed parent-agency agreement because he denied any alcohol or substance abuse. The caseworker testified, "Mr. Hatcher basically rejected being involved in any services, and stated that he did not want to cooperate with the Department of Social Services, and stated I’ll- — I’ll just have another kid and leave the country when told that this could possibly mean termination of his parental rights.”
At this hearing, the court determined that the mother’s mental illness made it impossible for her to comply with the parent-agency plan and that the father refused to cooperate with dss caseworkers. The court noted that visitation had occurred with the mother, but not with the father, and that dss caseworkers had made reasonable efforts to assist the parents. The court concluded, "there has not been any progress since the last review to rectify any conditions that caused removal.” The court continued temporary wardship and relative care.
A permanency planning hearing is required after a child has spent twelve months in foster care and parental rights to the child have not been terminated. The hearing is based on the premise that a failure to quickly decide on a long-term care plan for the child could be detrimental to the minor. At the hearing, the court may decide that (1) the child should return home, (2) the child should continue in foster care for a limited specified time or on a long-term basis, or (3) the agency has demonstrated that termination of parental rights may be in the child’s best interests. MCL 712A.19a; MSA 27.3178(598.19a), MCR 5.973(C)(1).
MCR 5.931(A) (delinquency proceeding); MCR 5.961(A) (protective proceeding). See also MCL 712A.2, 712A.11; MSA 27.3178(598.2), 27.3178(598.11).
MCR 5.903(A)(14); see also MCL 712A.11(4); MSA 27.3178(598.11X4) ("The petition shall set forth plainly the facts that bring the child within this chapter”). Provisions within the statute set forth the standards and procedures for drafting and filing a petition.
Legal commentators have noted that the petition has two essential functions:
First, it is a court document which should set forth the alleged basis of the court’s jurisdiction over a particular child. The petition names the child and the respondents and frames the issues to be addressed by the.court. The court may not inquire into matters not alleged in the petition. . . . The second principal function of the petition is to communicate to the respondents a notice of the charges against them so that they might evaluate their situation and prepare a response. The description of the parents’ acts of commission or omission should be put in terms specific enough to allow a defense to be prepared. [Duquette, Michigan Child Welfare Law, ch 5, pp 47-48.]
"Placement” is defined as "court-approved removal of a child from the parental home and placement in foster care, in a shelter home, in a hospital, or with a private treatment agency.” MCR 5.903(C)(5).
MCR 5.965(B) provides, in part, that during a preliminary hearing:
(3) The court shall read the allegations in the petition in open court, unless waived.
(4) The court shall determine if the petition should be dismissed or the matter referred to alternate services. If so, release the child and, if not, continue with the hearing.
(6) The court shall advise the respondent of the right to trial on the allegations in the petition and that the trial may be before a referee unless the required demand for a judge or jury is filed pursuant to MCR 5.912 or 5.913.
(8) The court shall allow the respondent an opportunity to deny or admit the allegations and make a statement of explanation.
(9) Unless the preliminary hearing is adjourned, the court shall decide whether to authorize the filing of the petition. The court may authorize the Ming of the petition upon a showing of probable cause, unless waived, that one or more of the allegations in the petition are true and fall within MCL 712A.2(b); MSA 27.3178(598.2)(bX The court shall indicate whether temporary or permanent custody is sought, and must direct that the respondent and the attorney for the child receive a copy of the petition authorized to be Med. [Emphasis added.]
Although there is no consensus regarding the exact term to describe the court’s jurisdiction from one procedural stage to another, one legal commentator has referred to the court’s authority after the petition’s authorization as “preliminary jurisdiction,” i.e., when a child is placed in custody after a preliminary hearing and before a formal adjudication. See Duquette, n 7 supra, ch 9, p 83.
According to MCR 5.903(A)(5), "[a]n authorized petition is deemed 'filed’ when it is delivered to, and accepted by, the register or clerk of the court.”
MCR 5.972, 5.973.
See MCL 712A.19; MSA 27.3178(598.19) (review hearing); MCL 712A.21; MSA 27.3178(598.21) (rehearing, supplemental disposition).
See also Fox v Martin, 287 Mich 147, 152; 283 NW 9 (1938) ("[jurisdiction always depends on the allegations and never upon the facts. . . . The truth of the allegations does not constitute jurisdiction”). | [
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Mallett, J.
We must determine whether the Court of Appeals erroneously reversed a trial court’s denial of a forfeiture claimant’s motion for summary disposition. Because the police officers’ entry of the claimant’s residence was constitutional pursuant to the exigent circumstances exception to the warrant requirement, we reverse and remand to the Court of Appeals for further proceedings consistent with this opinion.
I
On December 17, 1986, two Detroit police officers responded to an activated residential security alarm on Corbett Street. Upon their arrival, the officers checked the residence and its perimeter for signs of forced entry. A light was on inside the home. A small casement window was broken, and security bars previously located inside the window were pushed away. On the ground outside the window, the officers found a lug wrench, a bar, and a stocking cap. The officers radioed for a backup police unit. When the additional police officers arrived, they boosted the original officers through the broken casement window and into the home.
Two of the officers searched the home for intruders. On the main floor level, the officers entered what appeared to be a den in which clothes were strewn about the room. A trunk was in the middle of the room. The officers failed to find any intruders and consequently released the backup unit.
The officers then searched the home for informa tion that would assist them in identifying its owner. One of the officers found a telephone bill belonging to Bessie Wilson, a relative of claimant, and called the telephone numbers listed on the bill. The other officer found an envelope with "$4,000” written on it. The envelope contained forty one-hundred dollar bills. The officers then found a brown paper bag on the trunk in the den; "$10,000” and a name were written on the bag, which, in fact, contained a large sum of money. In the trunk were two large bags of money, one of which was a shopping bag that had torn from the weight of the cash. The officers immediately contacted the police unit that had just left the home. Unable to contact the owner of the residence or otherwise satisfactorily secure the premises, the officers removed the money from the home.
The police transported the money to the Ninth Precinct station, where an inspector directed the officers to take the cash to the property room at police headquarters. After being counted in the property room, the money was taken to an inspector’s office. The police placed the money in a cardboard box, set the box in a closet, and closed the closet door. A controlled-substance-trained canine was released in the room. After sniffing around the room for a short period of time, the "drug dog” moved quickly to the closet where the money was located. After the closet door was opened, the dog began carrying bundles of the money to its trainer, indicating that the money had been in proximity to controlled substances.
The claimant, Nathaniel Wilson, asserted ownership of the seized cash, and the Wayne County prosecutor filed a petition for civil forfeiture pursuant to MCL 333.7501 et seq.; MSA 14.15(7501) et seq. The claimant moved for summary disposition pursuant to MCR 2.116(C)(8) and (10), and the prosecution answered and filed an amended petition. The trial court denied the claimant’s motion for summary disposition. Following testimony from several witnesses, including the claimant, the trial court concluded that the claimant was a drug trafficker and ultimately entered a forfeiture order. In an unpublished per curiam opinion, the Court of Appeals reversed, vacated the forfeiture order, and held that the claimant’s motion for summary disposition should have been granted because of the illegal search of claimant’s residence. This Court granted the state’s application for leave to appeal. 440 Mich 889 (1992).
II
The Fourth Amendment of the United States Constitution and art 1, § 11 of the Michigan Con stitution of 1963 grant individuals the right to be secure against unreasonable searches and seizures. Generally, evidence obtained in violation of the Fourth Amendment is inadmissible as substantive evidence in criminal proceedings. Mapp v Ohio, 367 US 643; 81 S Ct 1684; 6 L Ed 2d 1081 (1961). This principle, commonly referred to as the "exclusionary rule,” is a cornerstone of American jurisprudence that affords individuals the most basic protection against arbitrary police conduct. The exclusionary rule is applicable in forfeiture proceedings. One 1958 Plymouth Sedan v Pennsylvania, 380 US 693; 85 S Ct 1246; 14 L Ed 2d 170 (1965).
Generally, a warrant, supported by probable cause, is required before a search is considered reasonable. Mapp v Ohio, supra; People v Davis, 442 Mich 1, 10; 497 NW2d 910 (1993); People v Blasius, 435 Mich 573; 459 NW2d 906 (1990). The warrant requirement is "subject only to a few specifically established and well-delineated exceptions.” Horton v California, 496 US 128, 133, n 4; 110 S Ct 2301; 110 L Ed 2d 112 (1990), quoting United States v Ross, 456 US 798, 825; 102 S Ct 2157; 72 L Ed 2d 572 (1982); Tallman v Dep’t of Natural Resources, 421 Mich 585, 598; 365 NW2d 724 (1984). The established exceptions to the warrant requirement include: (1) searches incident to a lawful arrest, (2) automobile searches, (3) plain view seizure, (4) consent, (5) stop and frisk, and (6) exigent circumstances. People v Davis, supra at 10; People v Toohey, 438 Mich 265, 271, n 4; 475 NW2d 16 (1991). Each of these exceptions, while not requiring a. warrant, still requires reasonableness and probable cause.
In People v Blasius, supra at 583, this Court noted that although "the precise contours of the exigent circumstances exception remain hazy, such an exception clearly does exist.” The boundaries of the exception were "hazy” because of the manner in which the doctrine has developed. Instead of immediately recognizing the specific exigencies that justify entries without warrants, the United States Supreme Court has gradually intimated the parameters of the exception over a forty-five year period. See Johnson v United States, 333 US 10, 15; 68 S Ct 367; 92 L Ed 436 (1948) (recognized that "exceptional circumstances” could justify a search without a warrant, but none existed because "[n]o suspect was fleeing or likely to take flight. The search was of permanent premises, not of a moveable vehicle. No evidence or contraband was threatened with removal or destruction”); McDonald v United States, 335 US 451, 456; 69 S Ct 191; 93 L Ed 153 (1948) ("We cannot . . . excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative”); United States v Jeffers, 342 US 48, 52; 72 S Ct 93; 96 L Ed 59 (1951) (invalidated a search because there was no "imminent destruction, removal, or concealment of the property intended to be seized”); Schmerber v California, 384 US 757, 770; 86 S Ct 1826; 16 L Ed 2d 908 (1966) (upheld the extraction of blood from a defendant for a blood-alcohol test because a police officer "might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant . . . threatened the destruction of evidence’ ”); Vale v Louisiana, 399 US 30, 35; 90 S Ct 1969; 26 L Ed 2d 409 (1970) (found that no exigency existed because the seized narcotics were not about to be destroyed or removed from the jurisdiction).
The United States Supreme Court recently offered additional insight into the exigent circumstances exception and its parameters. In Minnesota v Olson, 495 US 91; 110 S Ct 1684; 109 L Ed 2d 85 (1990), the Court acquiesced in the Minnesota Supreme Court’s treatment of the exception. There, the police suspected a defendant of being the getaway car driver in a robbery and murder. The police recovered the murder weapon and arrested the murder suspect. They later surrounded the home of two women with whom the defendant was staying, telephoned the home, and insisted that the defendant come out. As the police officer was instructing the woman, he heard a male voice say, "tell them I left.” The woman did so, but the police soon entered and found the defendant hiding in a closet. Id. at 94.
The Court remarked that the state court "applied essentially the correct legal standard” when it held that the following exigent circumstances justify an entry of a dwelling without a warrant: (1) hot pursuit of a fleeing felon, (2) imminent destruction of evidence, (3) the need to prevent a suspect’s escape, and (4) the risk of danger to the police or others inside or outside the dwelling. The state court opined that in the absence of hot pursuit, there must be at least probable cause to believe that one or more of the latter three circumstances existed. In assessing the risk of danger, the gravity of the crime and likelihood that the suspect is armed were deemed important considerations. Although a grave crime was involved, the murder suspect was in custody, the murder weapon was recovered, and there was no indication that the defendant was about to flee. As a result, the Court concluded that the entry without a warrant was unconstitutional.
In People v Blasius, supra, this Court thoroughly examined the exigent circumstances exception and held that the risk of destruction or removal of evidence may constitute an exigency that justifies an entry into a dwelling. The police must possess probable cause that the premises contain contra band or evidence of a crime. Additionally, where the police justify the entry for the purpose of securing the premises pending a warrant, an actual emergency supported by specific and objective facts must be shown.
The issue confronting this Court in the present case has been addressed by the Court of Appeals under similar facts, and the approach taken is particularly instructive. In People v Williams, 160 Mich App 656; 408 NW2d 415 (1987), two police officers heard an activated residential alarm and observed a pried-open window. Footprints in the snow directly led toward the window. One of the officers entered the home through the window and opened a back door to allow the other officer to enter. While inside, the officers searched for, but did not find, a burglar; instead, they discovered narcotics and related paraphernalia in the basement.
Relying on People v United States Currency, 148 Mich App 326, 331; 383 NW2d 633 (1986), the Court in Williams held that pursuant to the exigent circumstances exception to the warrant requirement, if a police officer has probable cause to believe that a crime has been committed on the premises and that evidence of that crime could be found within, the officer may make an entry of the dwelling without a warrant where immediate action is necessary to (1) protect the police officers or others, (2) prevent the loss or destruction of evidence, or (3) prevent the escape of the accused. Additionally, police may make an entry of a dwelling without a warrant within a reasonable time following a breaking and entering in order to (1) secure the premises against further intrusion, (2) determine if the burglars committed an act requir ing immediate action to prevent further property damage or personal injury, or (3) aid a victim in the building who may be restrained or injured. Williams, 160 Mich App 665.
In People v Davis, supra at 24, this Court stated in dicta the probable cause showing that must be made in exigent circumstances.
When the police act pursuant to the exigent circumstances. exception, they are searching for evidence or perpetrators of a crime. Accordingly, in addition to showing the existence of an emergency leaving no time for a warrant, they must also possess probable cause that the premises to be searched contains such evidence or suspects. See People v Blasius, supra, pp 593-594. See also Schmerber v California, 384 US 757; 86 S Ct 1826; 16 L Ed 2d 908 (1966); Vale v Louisiana, 399 US 30; 90 S Ct 1969; 26 L Ed 2d 409 (1970).[ ]
Without question, the appropriate probable cause inquiry has not been uniformly addressed by the cases cited above. Those cases suggest differing quanta of belief that police must possess regarding whether a crime was committed, whether evidence or intruders are inside the premises, and whether an exigency is present. While Olson presented an opportunity for the United States Supreme Court to enunciate a broadly defined rule setting forth the exacting parameters of the exception, the Court stopped well short of so doing.
Arriving at the scene of an apparent breaking and entering, the police are confronted with several potential calamities. There is a very real chance that the intruders are still present. The intruders may have restrained or, worse yet, injured or killed the inhabitants of the home. Furthermore, intruders occasionally set fire or do severe damage to the dwelling that requires immediate attention in order to prevent further damage or personal injury.
Pursuant to the exigent circumstances exception, we hold that the police may enter a dwelling without a warrant if the officers possess probable cause to believe that a crime was recently committed on the premises, and probable cause to believe that the premises contain evidence or perpetrators of the suspected crime. The police must further establish the existence of an actual emergency on the basis of specific and objective facts indicating that immediate action is necessary to (1) prevent the imminent destruction of evidence, (2) protect the police officers or others, or (3) prevent the escape of a suspect. If the police discover evidence of a crime following the entry without a warrant, that evidence may be admissible.
In the present case, the police were immediately responding to a residential security alarm after midnight in the City of Detroit. When they arrived at the scene, a light was on inside the house. The officers found a broken window, and the security bars located inside the window frame were pushed away. On the ground directly beneath the window, the police discovered a lug wrench, a bar, and a skull cap. One of the officers testified that the alarm was still sounding. These preeminent indications of a recently committed criminal entry were sufficient to give the police officers probable cause to believe that a crime recently had been committed on the premises and that the premises contained evidence or the perpetrators of the suspected crime. The same indicia of a criminal entry constituted specific and objective facts indicating the existence of an actual emergency. It was highly possible that the intruders were still present and that the inhabitants of the home were in danger. Officers Terence Markesino and Stephen Jackson testified that the purposes of their search were to ascertain the presence of intruders and to secure the premises, so that if an intruder was still inside, he would be unable to escape. Because these purposes are within the scope of exigencies recognized above, the police entry in the present case was constitutionally permissible.
III
The prosecution asserts that the police officers’ entry of the home in the present case was justifiable pursuant to an alternative exception to the warrant requirement, the community caretaking exception, first enunciated in Cady v Dombrowski, 413 US 433; 93 S Ct 2523; 37 L Ed 2d 706 (1973). The essence of the community caretaking exception is found in an oft-quoted excerpt from Cady.
Local police officers . . . frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.[ ]
The prosecution urges this Court to adopt this exception to the warrant requirement in the present case, because, pursuant to the community caretaking exception, the police need not possess probable cause.
Decisions of this Court and the Michigan Court of Appeals have supported the rationale in Cady and recognized the legality of community caretaking searches. Typically, the community caretaking function has been employed in automobile searches. In addition to the impoundment and inventory of automobiles, courts have included a multiplicity of police functions within the meaning of the community caretaking function, including entering an apartment to remove a former girlfriend following a domestic dispute, removing an intoxicated person from the street, entering an abandoned boat to ascertain ownership and the safety of the mariners, responding to a missing vehicle complaint, searching an unconscious person for identification, and responding to persons likely to be in need of emergency aid.
This Court recently discussed the community caretaker exception in the context of a search of a dwelling without a warrant. In People v Davis, supra, we noted the characteristics that distinguish it from the enumerated exceptions to the warrant requirement by stating that "the community caretaking exception is only invoked when the police are not engaged in crime-solving activities.”
Police officers are often charged with duties unrelated to detecting criminal activity. It is the execution of these duties that embody the community caretaking function. "Indeed, many functions could be considered 'caretaking’ functions as long as they are not performed to investigate or solve crimes.” Id. at 24.
We decline to employ the community caretaking exception under the facts of the present case. Clearly, the search performed by the police officers was performed for the purpose of investigating and solving a crime. The search was not "totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Both of the officers who entered the home testified that the purposes of the entry were to search for intruders and to secure the premises in an effort to thwart an attempted escape. In this case, it is unnecessary for this Court to reach the community caretaking exception because probable cause was well established. The application of the exigent circumstances exception adequately furthers the cause of justice.
IV
We hold that pursuant to the exigent circumstances exception to the warrant requirement, the police may enter a dwelling without a warrant if the officers have probable cause to believe that a crime was recently committed on the premises, and probable cause to believe that evidence or perpetrators of the suspected crime were still present. The police must further establish the existence of an actual emergency on the basis of specific and objective facts indicating that immediate action is necessary to (1) prevent the imminent destruction of evidence, (2) protect police officers or others, or (3) prevent the escape of the accused. Further, if police discover evidence of a crime following an entry without a warrant, that evidence may be admissible.
We remand this case to the Court of Appeals for consideration of additional issues raised by the claimant, including the subsequent search of the trunk at the Corbett Street residence, during which police discovered and seized large quantities of cash, and the exposure of the cash to a controlled-substance-trained canine.
Reversed and remanded.
Cavanagh, C.J., and Levin, Brickley, Boyle, Riley, and Griffin, JJ., concurred with Mallett, J.
The police left a note in the mailbox for the owner of the home.
MCR 2.116(C)(8) provides, "The opposing party has failed to state a claim on which relief can be granted.”
MCR 2.116(0(10) provides, "Except as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law.”
The claimant owns a number of rental properties in the City of Detroit and uses several of them as a residence. Approximately five months before the Corbett Street search and seizure, the police executed a search warrant at a residence on Chalmers Avenue owned by claimant. The police seized marijuana, cocaine, cash, firearms, and a safe containing jewelry, a beeper, and additional cash. Forfeiture proceedings were not initiated immediately against the claimant. The amended petition sought to include the property seized in this first search. The Court of Appeals held that proceedings with regard to the first seizure were not timely instituted and vacated the order of forfeiture for the property seized at that address. Because the prosecution does not assign error to that portion of the Court of Appeals opinion, we decline to address the issue.
Claimant testified that the money confiscated at his residence was generated by two convenience stores and his rental properties. He also testified that he was a very successful gambler, but that because all his respective winnings were under $10,000, no records existed.
US Const, Am IV provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.
Const 1963, art 1, § 11 provides:
The person, houses, papers and possessions of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things shall issue without describing them, nor without probable cause, supported by oath or affirmation.
The exclusionary rule was actually adopted by the United States Supreme Court in Weeks v United States, 232 US 383; 34 S Ct 341; 58 L Ed 652 (1914). Yet, the Court in Weeks did not extend the protections of the Fourth Amendment to state criminal trials. The Fourth Amendment was made applicable to the states through the Fourteenth Amendment in Mapp v Ohio, supra.
For a critical discussion of the exclusionary rule, see Dressier, Understanding Criminal Procedure, § 120, pp 241-247.
Olson, supra at 100.
Id. See also United States v Rubin, 474 F2d 262, 268-269 (CA 3, 1973). The Rubin court set forth five factors for analyzing a police officer’s determination that exigent circumstances existed:
(1) the degree of urgency involved and the amount of time necessary to obtain a warrant . . .
(2) reasonable belief that- the contraband is about to be removed . . .
(3) the possibility of danger to police officers guarding the site of the contraband while a search warrant is sought . . .
(4) information indicating the possessors of the contraband are aware that the police are on their trail . . . and
(5) the ready destructibility of the contraband and the knowledge that "efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic.” [Quoting United States v Manning, 448 F2d 992, 998-999 (CA 2, 1971).]
See also Salken, Balancing exigency and privacy in warrantless searches to prevent destruction of evidence. The need for a rule, 39 Hastings L J 283 (1988).
See also People v Dugan, 102 Mich App 497; 302 NW2d 209 (1980); People v Harris, 95 Mich App 507; 291 NW2d 97 (1980).
In People v Houze, 425 Mich 82, 90; 387 NW2d 807 (1986), this Court directly quoted People v Dugan, n 12 supra, with apparent approval and noted the exigent circumstances recognized by the Court of Appeals in that case.
"The 'exigent circumstances’ exception provides that when the police have probable cause to believe that a search of a certain place will produce specific evidence of that crime (the foundation requirements for issuance of a search warrant), there is no need for a warrant if the police also have probable cause to believe that an immediate warrantless search is necessary in order to (1) protect the officer or others, (2) prevent the loss or destruction of evidence, or (3) prevent the escape of the accused. People v Harris, 95 Mich App 507, 510; 291 NW2d 97 (1980). See United States v Chadwick, 433 US 1; 97 S Ct 2476; 53 L Ed 2d 538 (1977); People v Plantefaber, 91 Mich App 764, 770; 283 NW2d 846 (1979). The rationale of the exception is clear; when the police have the probable cause necessary to secure a warrant, but circumstances make it impossible for them to obtain the warrant in time, then it is 'reasonable’ under the Fourth Amendment to conduct a search and to seize evidence or contraband. See United States v Guidry, 534 F2d 1220, 1222-1223 (CA 6, 1976).”
People v Blasius, supra.
Cady, 413 US 441.
See People v Davis, supra, discussed infra at 274.
People v Toohey, 438 Mich 265; 475 NW2d 16 (1991); People v Russell, 174 Mich App 357; 435 NW2d 487 (1989); People v Krezen, 427 Mich 681; 397 NW2d 803 (1986); People v Castle, 126 Mich App 203; 337 NW2d 48 (1983); People v McIntosh, 110 Mich App 139; 312 NW2d 415 (1981); People v Kramer, 103 Mich App 747; 303 NW2d 880 (1981); People v Siegel, 95 Mich App 594; 291 NW2d 134 (1980); People v Clark, 68 Mich App 674; 243 NW2d 914 (1976).
Illinois v Lafayette, 462 US 640; 103 S Ct 2605; 77 L Ed 2d 65 (1983); South Dakota v Opperman, 428 US 364; 96 S Ct 3092; 49 L Ed 2d 1000 (1976); Cady, supra.
United States v Carlile, 234 Ill App 3d 1063; 600 NE2d 916 (1992).
United States v Rideau, 969 F2d 1572 (CA 5, 1992).
United States v Miller, 589 F2d 1117 (CA 1, 1978), cert den 440 US 958 (1979).
Duck v State, 518 So 2d 857 (Ala Crim App, 1987).
State v Bies, 76 Wis 2d 457, 470-471; 251 NW2d 461 (1977).
United States v Nord, 586 F2d 1288, 1290-1291 (CA 8, 1978).
See id. at 7.
Id. at 24-25.
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Cavanagh, C.J.
We decide today whether the Court of Appeals was compelled to remand this case to the trial court to allow the defendant to file a motion for resentencing. The defendant first alleged a sentencing guidelines scoring error before the Court of Appeals by filing a motion to remand pursuant to MCR 7.211(C)(1)(a). We hold that the Court of Appeals is not compelled to grant every motion to remand. The remand procedure is available only when the issue meets the requirements set forth in MCR 7.211(C). If there is evidence supporting the judge’s initial scoring of a sentencing guidelines variable, the motion to remand may be denied. Because there is sufficient evidence in this case, we reverse the Court of Appeals decision to grant defendant’s motion to remand.
i
On February 27, 1991, defendant pleaded guilty of assault with intent to commit murder. The incident leading to the charge occurred on June 30, 1990. The defendant was at a party, during which several guests became involved in a dispute with the neighbors. The victim lived near the house where the party took place, but did not return home until later in the evening. When the victim returned home, the individuals at the party began hollering racial slurs. The same individuals then began throwing rocks and beer bottles at the victim’s window. The victim grabbed a stick, went out to the sidewalk, and began yelling at the individuals. Defendant then attacked the victim with a baseball bat, knocking him to the ground. Defendant continued to hit the victim with the bat. One witness testified'that the defendant continued to hit the victim until the bat broke. At that time, a witness pulled defendant off the victim.
On March 25, 1991, nine days before sentencing, Kent Circuit Court Judge Dennis Kolenda sent defendant’s attorney a presentence report and a letter informing the attorney:
Any additions or corrections which you would like to make, including any challenges to the Sentencing Guidelines’ scoring, should be submitted in writing by the close of business on Friday, March 29, 1991.
Judge Kolenda also provided an opportunity to meet with the parties to discuss the case before the sentence proceeding.
Defendant was sentenced on April 3, 1991, pursuant to a plea agreement, to six to twenty years, a sentence within the sentencing guidelines range for assault with intent to do great bodily harm less than murder. Defendant received a prior record score of twenty-five and an offense score of sixty-five, which placed him in the c-iv sector of the grid. The corresponding guideline recommended a minimum sentence of three years to six years, eight months.
At sentencing, defense counsel agreed that the presentence report was "basically a fair and accurate report.” Judge Kolenda then explained,
Mr. Hernandez, I have come to the unfortunate conclusion, and I mean genuinely I think it’s unfortunate that for reasons that I don’t understand and you probably don’t understand, that you are a dangerous person at the moment and from whom I’ve got to protect society. You were involved in a very serious — and I think vicious is the right word — stabbing of a juvenile, and in this particular case involved a repeated senseless beating. . . .
The Prosecutor has recommended that you be sentenced under guidelines for an offense less serious than you committed, and less serious than you plead guilty to. The only way I can reject that recommendation is to set aside everything and have a trial, which I don’t think would be in the interest of the parties involved.
Defendant did not raise any objections before or during the sentencing proceeding.
Following sentencing, defendant received notice of his right to timely appeal and to request appointment of an appellate attorney within forty-two days. Defendant submitted his request for appointment of an attorney on April 10, 1991. Judge Kolenda entered a claim of appeal and order appointing an attorney on May 17, 1991. The Kent Circuit Court received the case transcript on July 25, 1991. The notice of filing a transcript on appeal was received on September 17, 1991.
The State Appellate Defender Office represented defendant during the appeal process. On September 25, 1991, defendant filed a motion in the Court of Appeals to remand the case to the circuit court to allow him to file a motion for resentencing. Defendant alleged error in the presentence scoring of fifty points for offense variable 2, which addresses "Physical Attack and/or Injury.” Defendant argued that the score of fifty points for "excessive brutality” is incorrect and that the proper score is twenty-five points because the victim only suffered bodily injury. If defendant received twenty-five points, his sentence range would have been two to five years under the c-m section of the grid.
The Court of Appeals remanded the case "only because we are compelled to do so pursuant to [People v] Walker [428 Mich 261; 407 NW2d 367 (1987)].” Unpublished order of the Court of Appeals, decided November 21, 1991 (Docket No. 140896). This Court granted the prosecutor’s motion for leave to appeal, limited to the issue whether this Court should reconsider its decision in Walker.
II
In Walker, this Court explained that a defendant must challenge the sentencing guidelines scoring in the trial court before raising the issue on appeal. The methods by which the issue may be raised in the trial court are
bringing] it to the attention of the trial court at sentencing, by a properly filed motion within the time period for filing a motion for a new trial, or by a timely filed motion for remand in the Court of Appeals. MCR 7.211(C)(1). [Id. at 262.]
This case involves MCR 7.211(C)(1), which was promulgated before the Walker decision._
A
The need to develop a formal remand procedure began to crystallize when this Court decided People v Moore, 391 Mich 426, 440; 216 NW2d 770 (1974), People v Ginther, 390 Mich 436; 212 NW2d 922 (1973), and People v Robinson, 390 Mich 629, 634; 213 NW2d 106 (1973).
In Moore, the defendant filed a postsentence challenge, claiming that the judge considered an invalid conviction in determining his sentence. The defendant failed to object at sentencing and did not file a motion in the trial court before pursuing the claim on appeal. Thus, the record was incomplete, which made appellate review impracticable. The prosecutor, however, supplied the necessary information to establish whether the prior convictions were valid. We determined that one conviction was invalid, and we remanded the case for resentencing because the record showed that the trial judge had considered the invalid conviction. Id. at 440.
Despite the outcome in Moore, we specifically ordered that, in future cases, "post-sentencing Tucked[ ] claims should be initially decided by the sentencing judge or his successor. [The judge] is in the best position to explore and decide the factual issues and, if necessary, the defendant can then be resentenced.” Moore at 440. Moving first in the trial court is important because without a record showing the judge’s decision, appellate courts have no basis for reviewing the challenge. See People v Mattison, 26 Mich App 453, 459-461; 182 NW2d 604 (1970). When a defendant’s claim " 'depends on facts not of record, it is incumbent on him to make a testimonial record at the trial court level in connection with a motion for a new trial Ginther at 443, quoting People v Jelks, 33 Mich App 425, 431; 190 NW2d 291 (1971). Without a complete record, the appellate court must engage in fact finding, as occurred in Moore, which is not the court’s role.
Robinson established the period for filing post-judgment motions. This Court stated that "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 ñling his brief on appeal, move the trial court for a new trial.” Id. at 634 (emphasis added). Allowing the defendant to file the post-judgment motion within the period for filing the appellate brief raised problems, however.
Originally, a trial court did not retain jurisdiction after sending the transcripts to the Court of Appeals, which generally occurred before expiration of the period during which the appellant could file his brief. The trial court’s authority to grant a motion for a new trial terminated upon sending the transcripts to the Court of Appeals. Thus, a corresponding jurisdictional rule was necessary.
Another problem evolved because defendants were required to file postjudgment motions in the trial court within "60 days after the entry of . . . the judgment or order appealed from . . . GCR 1963, 803.1(b)(1). Indigent defendants had to request and await appointment of appellate counsel before filing a postjudgment motion. Often, the "60-day period after sentencing for filing [a postjudgment motion in the trial court] had expired before appellate counsel was appointed.” Ginther at 444. Thus, the indigent defendant was barred from filing the postjudgment motion because it was deemed waived. In Ginther, we remanded the case and agreed with the defendant that the Court of Appeals should have ordered a remand to the trial court so that he could file a motion for a new trial. Id. at 445.
This Court promulgated a formal remand procedure in 1978. The remand rule was modeled after Moore, Robinson, and Ginther, and it resolved the problems expressed in those cases. The procedure allows the defendant to file a motion for a new trial in the trial court before filing a brief on appeal, and it eliminated jurisdictional concerns by authorizing the Court of Appeals to grant a remand if the trial court already relinquished the transcripts and jurisdiction.
The procedure also resolved the Ginther concern that the indigent would involuntarily forfeit an opportunity to file a postjudgment motion. If appellate counsel is not appointed within the sixty-day period to file a postjudgment motion, after counsel is appointed, a defendant could file a claim of appeal and then file a motion to remand within the period for filing the appellate brief.
On the basis of the remand rule, if the trial court would grant the motion for a new trial, the Court of Appeals may remand the case. If the trial court would not grant the motion, the Court of Appeals may decide to remand on the basis of GCR 1963, 817.6(l). Evidently, years before Walker, the remand procedure could be used to raise issues in the trial court before seeking appellate review. Although the rules were amended between the time the remand procedure originally was promulgated and the time Walker was decided, the substance of the rule remained the same.
B
The prosecutor questions whether Walker was correct in stating that challenges of sentencing guidelines scoring also could be raised in the trial court pursuant to the remand procedure.
Generally, allowing postjudgment challenges to issues not raised at trial is necessary where an objection or challenge could not be raised contemporaneously with the occurrence of the event giving rise to the challenge. The cases from which the remand procedure evolved illustrate this point. For example, ineffective assistance of counsel claims generally cannot be raised contemporaneously because it is not clear until the close of trial whether there may be a reasonable claim of ineffective assistance of counsel. Similarly, when newly discovered evidence arises, or it is unclear whether the sentence was based on inaccurate information, or the prosecutor’s failure to provide an indorsed witness is not discovered until after trial, the need for postjudgment motions is evident.
On the other hand, objections to hearsay, admission of evidence pursuant to an illegal search, and other similar issues generally can and should be recognized so that contemporaneous objection is possible. If a contemporaneous objection requirement is unreasonable or impossible, then postjudgment challenges should be permitted. When Walker was decided, if a postjudgment challenge was permitted, then the remand rule was one method by which to raise that challenge first in the trial court.
The prosecutor argues that sentencing guidelines scoring challenges should be subject to the contemporaneous objection requirement. The State Appellate Defender Office responds that postjudgment challenges are necessary because too frequently the defendant does not receive the presentence report until the day of sentencing. Thus, the defendant and counsel cannot adequately review the report to determine if an objection should be raised until after sentencing._
We agree that when Walker was decided that problem may have existed. Since Walker, the court rules have been amended. MCR 6.425(B) requires the trial court to permit the defendant to review the presentence report "a reasonable time before the day of sentencing.” As the amici curiae observed, however, not all judges have the same notion of what is a reasonable time. While some courts provide the defendant a copy of the presentence report several days before sentencing, other courts provide a copy the day of sentencing, sometimes shortly before sentencing. Some defendants are not given a reasonable time to review the report. Thus, at the time of Hernandez, the necessity of permitting postjudgment challenges to the scoring still existed.
III
Although we stated in Walker that postjudgment challenges to the sentencing guidelines scoring are permitted, we also stated that the remand procedure was available when "a defendant properly raises a challenge to the manner in which the guidelines are scored.” Id. at 267. The Court did not explain, however,. what the defendant must show to raise a challenge that warrants granting the motion to remand.
The Michigan Court Rules again were amended in 1989. The amendments affected the remand procedure and defendant Hernandez’ right to file a postjudgment challenge to the sentencing guidelines scoring. MCR 6.429(C) was added in response to Walker and it enables the defendant to challenge the sentence guidelines scoring:
(1) at sentencing, or
(2) by a motion for resentencing filed
(a) within 42 days after entry of the judgment,[ ] or
(b) in accordance with the procedure set forth in MCR 7.208(B);[ ] or
(3) by a timely filed motion to remand in the Court of Appeals under MCR 7.211(C)(1).
This case involves MCR 7.211(C)(1), which has limitations regarding what cases must be remanded for filing a motion for resentencing in the trial court. The remand procedure is not mandatory. MCR 7.208 already accords defendant twenty-eight days after the commencement of the time for filing a brief on appeal to file various motions in the trial court without the permission of the Court of Appeals. Requiring remand merely on the basis of such a filing would render meaningless the requirement of seeking the permission of the Court of Appeals if the defendant misses the twenty-eight day deadline. A mandatory remand also would require the Court of Appeals to remand every challenge, no matter how frivolous.
Accordingly, when the remand procedure is available, it is not mandatory, but requires discretion by the Court of Appeals in determining when remand is appropriate. The trial court here did not certify that it would grant a motion for a new trial. Therefore, the remand motion only could be granted under MCR 7.211(C)(1)(a). Although this Court has addressed situations in which development of a record is necessary, it has not discussed the alternative requirement that the issue be one that "should be initially decided by the trial court.” We now undertake that task in the context of a challenge to the sentencing guidelines scoring.
A
An issue that initially should be decided by the trial court is different from an issue that must be raised first in the trial court to be preserved for appeal. The former, as here, requires that the trial judge make the initial scoring decision. The latter requires that the defendant first raise an objection to the judge’s scoring in the trial court or it is deemed waived.
Although, the initial scoring of the sentencing guidelines must be completed by the trial court, a remand to challenge the judge’s scoring of the sentencing guidelines is unnecessary where there is evidence to support the judge’s initial scoring. The Court of Appeals decision in People v Green, 152 Mich App 16, 18; 391 NW2d 507 (1986), correctly recognized that the judge’s scoring of the sentencing guidelines will be upheld if there is evidence to support the score. If the judge made an initial scoring decision that is supported by the evidence, then remand would not serve a useful purpose. See, e.g., People v Degraffenreid, 19 Mich App 702, 719; 173 NW2d 317 (1969). This case presents an excellent example of when it is unnecessary to remand.
B
During the hearing in which the trial judge accepted the defendant’s guilty plea, the following discussion occurred:
The Court: During the course of that fight, I understand you struck him on the head several times. I’ve heard the number as many as ten, but at least several times. Is that correct?
The Defendant: Yeah.
The Court: You did hit him on the head several times with that ball bat?
The Defendant: Yes.
The Court: And these weren’t just little taps; you took a good swing.
The Defendant: Yes.
Defendant all but admitted that he used excessive brutality several times when using "good swings” of the baseball bat to hit the victim on the head.
The presentence report included the statement that defendant "continued to beat the victim with a baseball bat after the victim was down.” Witnesses stated that "Hernandez continued to beat him with the bat across the head and body until the bat broke, then jabbed him repeatedly with the splintered end.” Terry Major told the detective that he "pulled Hernandez off of the victim because the beating was so savage.”
Defendant’s response regarding the continued beating was "I hit him a couple of times after he was down ... on impulse. The guy came after me. I was protecting myself.” Although there is testimony to the contrary, even if defendant’s claim of protecting himself were true, he may only use force reasonably necessary to protect himself. Any additional force would be considered excessive. Here the additional force was more than excessive, it was brutal.
The preliminary hearing, the presentence report, and the trial judge’s discussion with defendant during the plea hearing, led the judge to explain at sentencing that he believed the incident to be "very serious — and I think vicious is the right word — stabbing of a juvenile, and in this particular case involved a repeated senseless beating.” The victim suffered serious injuries, including fiftéen stitches in his head, a broken finger, and torn cartilage in his wrist.
The Court of Appeals could glean from the record evidence supporting the judge’s initial scoring of fifty points for excessive brutality. Consequently, the requirements of MCR 7.211(C)(1)(a) were not established, and denying the motion to remand would have been appropriate.
iv
The remand procedure should not be utilized for presentence issues that can be raised contemporaneously with the event giving rise to the challenge. To ensure fairness, in light of amici curiae’s observations, we will consider amending the court rules to require trial judges to provide defendants with copies of reports and scoring within a specific number of days before sentencing. If a trial judge complies with the requirement, then the defendant will be required to object before or at sentencing to preserve a challenge to the scoring. If the judge fails to comply, then the defendant will have available a postsentencing challenge pursuant to MCR 6.429. On the basis of the intended amendment to the court rules, the remand procedure will no longer be necessary for sentencing guidelines scoring challenges.
MCR 7.208 also supports limiting use of the remand procedure. The staff comment to MCR 7.208(B) explains that the rule was created in response to the addition of MCR 6.425(F)(3). MCR 6.425(F)(3) was created to "substantially accelerate the commencement of appeals by having the [request for the appointment of an attorney] also act as a claim of appeal in cases in which the defendant’s request for a lawyer was timely . . . .” Staff Comment, 1989.
The increasing backlog in the Court of Appeals docket has become a matter of great concern over the years. MCR 6.425(F)(3) was one method of expediting disposition of appeals, and MCR 7.208(B) was another. Interestingly, MCR 7.208(B) was promulgated for the same jurisdictional concerns that led to the development of the remand procedure. Thus, MCR 7.208(B) was created to serve additional purposes, one of which was easing the Court of Appeals docket by eliminating the right to seek a motion to remand to preserve an issue for appeal.
It makes little sense to require the issue to be preserved for appeal and then to require the Court of Appeals to remand a case to preserve the issue upon the mere filing of a motion to remand. Because of jurisdictional concerns, we had to overlook that anomaly; but today, MCR 7.208(B) ad dresses the jurisdictional concerns. The remand procedure is necessary only for those issues that are preserved, but still requires additional proceedings in the trial court before being resolved.
v
In sum, we hold today that the Court of Appeals is not compelled to grant every motion to remand. Only those issues that meet the requirements of MCR 7.211(C)(1) must be remanded. The motion to remand may be denied if there is evidence supporting the judge’s initial scoring of the challenged sentence guidelines variable. There clearly is evidence supporting the judge’s initial scoring of fifty points for excessive brutality.
Accordingly, we reverse the Court of Appeals decision to grant defendant’s motion to remand.
Levin, Brickley, Griffin, and Mallett, JJ., concurred with Cavanagh, C.J.
MCR 7.211(C)(1) provides:
Motion To Remand. Within the time provided for filing the appellant’s brief, the appellant may move to remand to the trial court. A timely motion must be granted if it
(a) identifies an issue sought to be reviewed on appeal and demonstrates by affidavit or an offer of proof facts supporting an issue for which development of a record is required or that the issue should be initially decided by the trial court; or
(b) is accompanied by a certificate from the trial court that it will grant a motion for new trial.
If a motion to remand is granted, further proceedings in the Court of Appeals are stayed until completion of the proceedings in the trial court pursuant to the remand, unless the Court of Appeals orders otherwise. Unless the Court of Appeals sets another time, the appellant’s brief must be filed within 42 days after the trial court’s decision or after the filing of the transcript of any hearing held, whichever is later.
MCL 750.83; MSA 28.278.
The conference was not mandatory. Similarly, although Judge Kolenda requested that challenges be made by March 29, 1991, failing to raise the objection at that time did not, and could not, waive defendant’s right to object to the scoring during sentencing or within the set time after sentencing.
The sentencing guidelines explain the scoring of the physical attack and/or injury variable as follows: 100 Victim killed, 50 Victim treated with excessive brutality, 25 Bodily injury and/or subjected to terrorism, and 0 No injury. The sentencing guidelines also suggest: A) In multiple offender cases when one offender is assessed points for physical attack and/or injury, all offenders shall he assessed the same number of points; B) Score "100” when death results from the commission of a crime and homicide is not the conviction offense; C) Terrorism is conduct that is designed to increase substantially the fear and anxiety that the victim suffers during the offense; D) Score "0” if a victim is struck in an assaultive crime and there is no bodily injury.
United States v Tucker, 404 US 443; 92 S Ct 589; 30 L Ed 2d 592 (1972).
See MCR 7.208; former GCR 1963, 802.2 granted authority for the trial court to entertain motions or correct errors before the transcript was sent to the Court of Appeals:
Effect of Filing Claim of Appeal.
(1) Except as otherwise provided by statute or rule, and until the record is Bled in the Supreme Court or Court of Appeals, the trial court, tribunal or officer has jurisdiction to grant further time to do, properly perform, or correct any act in connection with the appeal, omitted or insufficiently done, except to extend time for filing claim of appeal or paying the appeal fee, to dismiss the appeal, or to allow a delayed appeal. [Emphasis added.]
See People v Ginther, supra at 444, n 7.
The defendant had sixty days after appointment of counsel to file an appeal of right, but the issue defendant desired to challenge was waived if not raised within sixty days of the judgment.
Although the staff comment is not an authoritative construction of the court rule, it is helpful in understanding the origin of the remand procedure:
The motion must be filed within 60 days after the filing of the claim of appeal or the filing of the transcript, which ever is later, or within further time the Court may allow for the filing of the brief on appeal. The standards for granting a timely motion to remand under paragraph (1) are drawn from the case law. See, e.g., People v Mattison, 26 Mich App 453, 459-461; 182 NW2d 604 (1970); People v Jelks, 33 Mich App 425, 431; 190 NW2d 291 (1971); People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973); People v Robinson, 390 Mich 629, 634; 213 NW2d 106 (1973); People v Moore, 391 Mich 426, 440; 216 NW2d 770 (1974).
Paragraph (2) incorporates the federal practice of allowing a motion for new trial to be filed during the pendency of an appeal, but then requiring a remand if the trial judge decides he will grant the motion. See, e.g., United States v Frame, 454 F2d 1136, 1138 (CA 9, 1972). [402 Mich cxlii-cxliii (1978).]
See MCR 7.211(C)(1)(b), former GCR 1963, 817.6(2). The time for filing an appellate brief did not begin to run until the latest of the certification of the order granting leave to appeal, the filing of the claim of appeal, or the filing of the transcript. See MCR 7.212(A)(l)(a)(ii).
Being an issue in which appellate review is sought is a standard requirement. As expressed in Moore, if the issue also is one that initiálly should be decided by the trial court, the Court of Appeals must remand the case. Or, as expressed in Ginther, if development of a record also is necessary then the case must be remanded.
MCR 7.211 is based on former GCR 1963, 817.6. We note that throughout many of the amendments, several problems involving claims of appeal, appointment of counsel, and preparation of tran scripts in time to file postjudgment motions would have occurred if the remand procedure was not in force. For example, MCR 7.204(A)(2) also addressed the concern raised in Ginther. The rule, however, only applied in cases involving pleas of guilty or nolo contendere. Thus, under subsection (A)(2), the defendant was required to take an appeal of right in a criminal case within a specified time, but the transcript may not have been prepared within that time. The defendant therefore was forced to file a postjudgment motion without the transcript in order to toll the period during which the defendant was required to file the claim of appeal.
Generally this also should be discovered. If the record shows that the trial judge did not consider the invalid conviction, then there would be no need to remand the case for the trial judge to initially determine if resentencing should occur. The case may arise, however, where it is unclear whether the judge relied on the inaccurate information. In People v Keller, 428 Mich 918; 410 NW2d 281 (1987), we ordered the Court of Appeals to remand on the basis of inaccurate information and a scoring challenge. The record did not support the judge’s scoring, and it was unclear on what information the judge based the score. Under those circumstances, the issue was one that the trial court initially had to address. Similarly, because it was not clear whether the judge considered the invalid conviction to deter mine a sentence, it was not possible to raise a contemporaneous objection. In the future, however, we would recommend that defense counsel specifically inquire regarding what information the judge relied on in determining a sentence. Also, because we have sentencing guidelines today, if the sentence would remain the same even without considering the invalid conviction, remand is unnecessary. The test is "whether the sentence 'might have been different’ if the sentencing judge had known that the earlier convictions had been unconstitutionally obtained.” Moore at 439, quoting United States v Tucker, n 5 supra at 448 (emphasis in original).
GCR 1963, 785.7(7) was amended in 1983 to specifically provide that in guilty plea cases, the defendant had to "file a motion to withdraw the plea in the trial court before the filing of the claim of appeal; the Court of Appeals need not grant a motion to remand pursuant to GCR 1963, 817.6(1) to allow a defendant the opportunity to file such a motion.” Although that rule no longer exists today, at the time it demonstrated that the remand procedure was not avail,able to preserve all issues. Whether a guilty plea was voluntarily made is an issue to which an objection is possible. Thus, only if extenuating circumstances such as new evidence develop, challenges may not be raised pursuant to the remand procedure.
The court rule that existed at the time provided:
Disclosure of Presentence Reports. The court shall permit the prosecutor, the defendant’s attorney, and the defendant, to review the presentence investigation report prior to sentencing. Both parties must be given an opportunity at the time of sentencing to explain or controvert any factual representations in the presentence report. [Former MCR 6.101(K).]
We commend Judge Kolenda for submitting the presentence report and scoring to defense counsel nine days before sentencing and for offering a presentencing conference to both parties. On the basis of the facts of the case, Judge Kolenda provided the report within a reasonable time before sentencing. The defendant here had ample opportunity to review the presentence report and the sentencing guidelines scoring and to raise an objection. The scoring of the offense severity level was uncomplicated and only involved scores for two categories: ov l, aggravated use of weapon = 15 points for touching the victim with a weapon; and ov 2, physical attack and/or injury = 50 points for treating the victim with excessive brutality.
Substantial time is not required to review the offense variables, to consider the facts of the case, and to ponder whether a weapon was involved that touched the victim and whether the victim was treated with excessive brutality. If either variable seemed suspicious or had the slightest ambiguity, the defendant or the defense attorney could have raised an objection before or at sentencing.
Although we believe the defendant had a reasonable time to review the presentence report, postjudgment challenges still were available.
Adopted effective October 1, 1989. The staff comment to the rule indicates that subrule (C) "incorporates the issue preservation requirement adopted in People v Walker . . . .”
This primarily benefits nonindigent defendants who have retained counsel, or a defendant who files in propria persona.
MCR 7.208(B)(1) provides:
No later than 28 days after the commencement of the time for filing the defendant-appellant’s brief as provided by MCR 7.212(A)(l)(a)(iii), the defendant may file in the trial court a motion for a new trial, for judgment of acquittal, to withdraw a plea, or for resentencing.
See n 1.
If the defendant missed all previous opportunities to raise the scoring challenge, MCR 7.211(C)(3) allowed the defendant to file a motion in the Court of Appeals to remand to the trial court for a resentencing hearing. The motion must be made within the period for filing the brief, which is fifty-six days from the date discussed in n 8. MCR 7.212(A)(l)(a)(iii), however, permits the parties to stipulate a twenty-eight day extension for filing the brief, after which the parties could move for an additional month in the Court of Appeals. Thus, the time for filing the brief could be as long as 114 days. Such a rule for an issue that easily should have been raised at trial is not practical, economical, or judicially efficient.
The remand procedure has been utilized when development of the record was required. See, e.g., People v Sparks, 435 Mich 876; 458 NW2d 896 (1990); People v Maskey, 433 Mich 902; 446 NW2d 830 (1989). For example, ineffective assistance of counsel claims generally require development of a record to determine if counsel was ineffective. People v Ginther, supra.
In Walker, we stated that if the defendant properly raised a challenge, then "the trial court shall resolve that challenge in the same fashion that it resolves any other dispute concerning the accuracy of information to be considered at sentencing.” Id. at 267. Although we discussed the procedure with which the trial court should comply, we did not discuss how the defendant properly should raise a challenge under MCR 7.211(C)(1)(a) when challenging sentencing guidelines scoring.
If there was no distinction, then the Walker decision would be circular. In effect, the decision would be read to mean that the challenges to sentencing guidelines scoring must be raised in the trial court to preserve the issue and that the issue is preserved by filing a motion to remand if it is an issue that must be raised in the trial court to be preserved.
If there is no evidence, then the trial court, as we stated in Walker, must resolve the issue in the same fashion as it resolves other disputes concerning the accuracy of information used at sen tencing. Thus, People v Green, supra, is in accord with Walker and this decision.
Consequently, any claim of ineffective assistance of counsel also would fail because an objection would have been futile under the facts of this case.
In addition to there being evidence, it is hard to imagine that the judge would agree with defendant’s argument that awarding fifty points for excessive brutality was erroneous after stating that it was a vicious, repeated, senseless beating, causing those injuries.
The Court is persuaded that a procedure similar to that utilized by the trial court in this case should be the rule in all trial courts. This defendant and his attorney were certainly presented with ample opportunity to review and challenge the presentence report and guidelines scoring. It is the intention of this Court to publish such a proposed rule for comment and adoption. Nonetheless, we summarize here the direction in which we believe the rule should head.
MCR 7.208(B) was promulgated under the October 1, 1989, amendment. The staff comment explains:
MCR 7.208(B) creates a new procedure under which a criminal defendant-appellant may file postjudgment motions in the trial court notwithstanding the fact that the Court of Appeals has jurisdiction of the case because the order appointing appellate counsel serves as the claim of appeal. See MCR 6.425(F)(3). Unlike motions to remand under MCR 7.211(C)(1), leave of the Court of Appeals is not required to take advantage of this procedure. The defendant-appellant may take advantage of this procedure by filing a motion in the trial court within 28 days after the period for filing the appellant’s brief has begun to run. The rule sets forth the time limits for processing such a motion in the trial court and for further proceedings in the Court of Appeals following various possible dispositions of the motion by the trial court.
Ginther involved an attempt to withdraw a guilty plea. GCR 1963, 803.1(c) also was amended to provide that an appeal of right in a case involving a guilty plea could be brought within sixty days of the filing of the plea transcript. The amendment was "designed to give appellate counsel the time to review the transcript of the plea proceeding and to move in the trial court for relief while that court still has jurisdiction over the case. . . . The amended rules were not designed to simply place one meaningless step into the review process but were designed to facilitate the entire process by allowing trial courts the opportunity to correct any errors in the first instance. Of course, one benefit to the system would be a reduction in the number of reversals based on an omission during the plea proceedings.” People v Richardson, 144 Mich App 616, 621; 376 NW2d 167 (1985). That rule does not exist today; however, MCR 7.204(A)(2), 7.208(B), and 7.211(C) serve the same purpose as that amendment and are not limited to plea cases. The "benefit of such a procedure is that the trial court may rectify any error prior to the initiation of the formal appeal process . . . which will result not only in fewer appeals but in swifter resolutions.” Richardson at 620.
MCR 7.208(B) still protects the indigent defendant, who has forty-two days from the time the judgment is entered to file a claim of appeal. MCR 7.204(A)(2)(b). An indigent loses the opportunity to file a postsentence challenge in the trial court within forty-two days of sentencing, MCR 6.429(C)(2)(a), when filing the claim of appeal because the Court of Appeals obtains jurisdiction at that time. MCR 7.208(B), however, gives concurrent jurisdiction so that the defendant may file in the trial court, without Court of Appeals permission, within twenty-eight days from the time of the commencement of the time for filing the defendant-appellant’s brief. MCR 7.212(A)(1)(a) (iii) states that the brief must be filed within fifty-six days from the latest of the filing of the claim of appeal, the certification of the order granting leave to appeal, or the filing of the transcript with the trial court or tribunal. An indigent defendant’s filing time is the latter of the date counsel is appointed or date the transcripts are filed. Thus, the defendant will have appellate counsel, access to the transcript, and time to file a postsentence challenge. | [
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Brickley, J.
We granted leave to appeal to determine whether there was reasonable suspicion within the purview of the Fourth Amendment to perform an investigatory stop on a vehicle containing three males who, for approximately four minutes, visited a house that two weeks earlier had been raided for selling cocaine, continued to operate as a drug house as reported by a reliable informant, and that thirty minutes earlier, was the site of a controlled buy. The Court of Appeals affirmed the decision of the circuit court that the stop violated the defendant’s constitutional rights. The people appeal, and we now reverse.
I
On the evening of March 16, 1989, the Jackson police were told by a confidential, reliable informant that drugs were being sold at 515 Oak Street. Just two weeks earlier, after keeping the house under surveillance long enough to witness a number of in-and-out quick stops typical of drug transactions, all of which resulted in arrests for cocaine possession, a search warrant was issued for the house and resulted in cocaine and drug paraphernalia being found on the premises. One of the occupants of the house, Ms. Ivy Torry, told the officer performing the search, who was also in charge of the present case, that she indeed had been selling cocaine from the house.
On the basis of that information the police arranged for the informant to make a controlled purchase with marked bills. The police searched the informant and the informant’s car, and gave the informant $60. The informant was unable to personally enter the house, but arranged for some one else to actually purchase the cocaine. At 9:00 p.m., surveillance officers followed the informant and the buyer to 515 Oak Street, where the buyer entered the house for approximately three minutes, and, upon returning to the car, gave the informant a packet of cocaine and $10 in change. The informant was wearing a wireless microphone through which the police heard the buyer state that "Miss Torry had run out of drugs, and she sent Mr. Conner over to the south side to find Mr. Nelson.” The buyer stated that he paid $50 for what was received.
The officer in charge proceeded to obtain a search warrant, while other officers maintained surveillance of the house. After approximately thirty minutes, the defendants were observed in an older model Camero driving up to the house. All three entered the house and remained there for only four minutes. One of the detectives watching the house testified that on the basis of his twenty-three years experience, the defendants’ behavior was characteristic of a "crack-house” buy: "a short visit, in/out, back in the car and down the road.” It was described as a "carbon copy” of what had occurred two weeks earlier.
A few moments after the defendants left the house, they were stopped by the police to investigate the possible drug transaction. There was conflicting testimony by the law enforcement officers at the scene regarding the exact order of the events that transpired. The detective stated that for the officers’ protection and to prevent any evidence from being destroyed, the front seat passengers were directed to place their hands on the dashboard and the person in the back was directed to place his hands on the head rest of the seat in front of him. He stated further that he approached the driver and, while he was asking the driver for his license and information about the vehicle, he observed an open bottle of beer on the floor between the driver’s legs. At that point, the detective testified, the defendants were ordered out of the car and subjected to a full search for weapons and contraband.
The officer at the scene testified that he approached the passenger’s side of the Camero as the detective approached the driver’s side. The right front passenger was asked to step from the vehicle and was searched for weapons and contraband. The rear seat passenger, defendant Jones, was then asked to get out of the car and was patted down, revealing an open bottle of gin in his belt. The circuit court found that "[t]he occupants were ordered out of the car based upon the officers’ belief that people involved in drug trafficking quite frequently did have weapons,, and thereafter, open intoxicants were found, arrests were made, and a search of the vehicle and of the persons revealed crack cocaine.” Later, upon booking, more cocaine was discovered in the socks of defendant Jones.
The defendants were charged with possession of less than twenty-five grams of cocaine. MCL 333.7403(2)(a)(v); MSA 14.15(7403)(2)(a)(v). At an evidentiary hearing the circuit court held that the evidence must be suppressed and dismissed the case because the stop and search violated the constitution. The Court of Appeals affirmed, being "of the opinion that the police did not possess sufficient reasonable, particularized and articulable suspicion that these particular defendants were engaged in criminal activity.”
We take the contrary view.
II
The conduct of the police in this case implicates the Search and Seizure Clause of the Fourth Amendment of the United States Constitution. The type of intrusion authorized by Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968), has been extended to permit investigative stops under various circumstances for what has been called " 'special law enforcement needs.’ ” See People v Shabaz, 424 Mich 42, 58, n 6; 378 NW2d 451 (1985). In order for law enforcement officers to make a constitutionally proper investigative stop, they must satisfy the two-part test set forth in United States v Cortez, 449 US 411; 101 S Ct 690; 66 L Ed 2d 621 (1981). The totality of the circumstances as understood and interpreted by law enforcement officers, not legal scholars, must yield a particular suspicion that the individual being investigated has been, is, or is about to be engaged in criminal activity. Id. at 418. That suspicion must be reasonable and articulable, Terry at 21, and the authority and limitations associated with investigative stops apply to vehicles as well as people. United States v Sharpe, 470 US 675, 682; 105 S Ct 1568; 84 L Ed 2d 605 (1985).
III
The Court of Appeals in this case suggests that the defendants could have been at the house for any number of reasons, and that "presence, alone, is not sufficient to give rise to a particularized suspicion of criminal activity.” However, the absence of apparent innocent behavior has never been a requirement for the suspicion required to make an investigatory stop. United States v Sokolow, 490 US 1, 9; 109 S Ct 1581; 104 L Ed 2d 1 (1989). The question is not whether the conduct is innocent or guilty. Very often what appears to be innocence is in fact guilt, and what is indeed entirely innocent may in some circumstances provide the basis for the suspicion required to make an investigatory stop. Thus, the focus is on the " 'degree of suspicion that attaches to particular types of noncriminal acts.’ ” Id. at 10.
Similarly, defendant Jones argues:
If police had information that this residence at 515 Oak fit the description of the classic Detroit crack house then the police may have properly formed a reasonable suspicion that persons who stopped briefly at the premises were involved in drug activity, since it would have been unlikely that they would have been involved in any other activity.
In this case, since the police were dealing with , a home where all the activities of life were conducted and the occasional sale of controlled substances was only a part of the total activities, police could not have formed a reasonable suspicion that Defendant’s presence was for the purpose of purchasing drugs.[ ]
As stated above, the question is not one of a "classic” crack house, likelihood or unlikelihood, or an "occasional sale.” The question is the suspicion generated by a four-minute stop at 9:30 p.m. by a Camero containing three males at a house, not only suspected of, and under surveillance for, drug dealing, but which had a history of a prior successfully executed search warrant, a witnessed-controlled drug purchase, and reliable information that it continued to operate as a drug house.
Defendants also argue that because the law enforcement officers overheard the buyer tell the informant that Ms. Torry had run out of drugs, they should have been on notice that there was no cocaine left in the house and thus could not possibly have formed the reasonable suspicion required to make an investigatory stop. This argument is invalid for a number of reasons, particularly because the various implications arising from the statement are all equally compelling. First, it confirmed that the house was operating as a drug house. Second, notwithstanding the dubious credibility of a drug dealer, we are not convinced that in the world of drug trafficking what this dealer told the buyer necessarily means that the house was completely without drugs. It may be that what was sold was all that Ms. Torry was willing to part with at the time.
Third, this statement by Ms. Torry alerted the officers to the fact that the supply, if indeed it was depleted, was going to be replenished shortly. The officers would have been watchful for some type of delivery — there is no reason why they should not have suspected the defendants to be making that delivery. Moreover, if the defendants did make the delivery, there is no suggestion that they would not have continued to possess some controlled substance after their departure. Finally, with a search warrant on the way, the police would be interested in ensuring that any contraband and the marked money remained in the house and did not escape via some accomplice or another drug transaction before the execution of the search warrant.
It is apparent that just as many illegal implications can be attributed to the conduct as legal ones, but as stated above, the question is not the number of scenarios that the imagination can conjure, but the degree of suspicion conferred on the seemingly legal conduct.
There is no bright line rule to test whether the suspicion giving rise to an investigatory stop was reasonable, articulable, and particular. Common sense and everyday life experiences predominate over uncompromising standards. United States v Sharpe, supra at 686. Therefore, deference should be given to a law enforcement officer of twenty-three years who states that certain behavior by particular individuals exhibits a "carbon copy” of what the officer would otherwise believe to be a drug purchase. In analyzing the totality of the circumstances, the law enforcement officers are permitted, if not required, to consider "the modes or patterns of operation of certain kinds of lawbreakers. From [this] data, a trained officer draws inferences and makes deductions — inferences and deductions that might well elude an untrained person.” Cortez at 418.
A similar case was recently presented to the Minnesota Supreme Court. State v Dickerson, 481 NW2d 840, 843 (Minn, 1992), aff’d on other grounds 508 US —; 113 S Ct 2130; 124 L Ed 2d 334 (1993). In that case, two police officers observed the defendant leaving a house known for cocaine traffic, and the defendant, upon seeing the police officers, turned around and began walking in the other direction. On the basis of that information, the officers decided to stop the defendant to investigate further. The trial court held that the investigatory stop and protective patdown were justified under Terry, and the Court of Appeals and the Minnesota Supreme Court both agreed with that finding.
Simply being in a high crime area is certainly not enough evidence to meet the required level of suspicion, Shabaz at 60, but in Dickerson there was something more, namely, evasive behavior upon seeing uniformed police officers. In the present case, there are also several added ingredients. First, there are three males visiting an operating drug house for merely four minutes, and, more importantly, the drug supply had diminished and was going to be replenished.
In the analysis of Dickerson, the United States Supreme Court stated the rule applicable to the present case as follows:
"[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot” the officer may briefly stop the suspicious person and make "reasonable inquiries” aimed at confirming or dispelling his suspicions. [124 L Ed 2d 344.]
In balancing the competing interests at stake, namely, the nature and quality of the intrusion of an individual’s Fourth Amendment rights with the government’s interest in controlling the explosive existence of drugs, we think that on the basis of the facts of this case an investigatory stop is a minimal intrusion. United States v Montoya de Hernandez, 473 US 531, 537; 105 S Ct 3304; 87 L Ed 2d 381 (1985). See also United States v Mendenhall, 446 US 544, 561; 100 S Ct 1870; 64 L Ed 2d 497 (1980), and United States v Place, 462 US 696, 704; 103 S Ct 2637; 77 L Ed 2d 110 (1983).
The detective in this case articulated at the evidentiary hearing that he observed a four-minute stop by three persons at a house where police had just made a controlled purchase, and that was known as a house dealing in cocaine. Such behavior was indicative of drug trafficking, in particular, cocaine. There was no evidence to support the contention that the persons were delivering flowers or were there to read the water meter. It was 9:30 p.m., and social visits usually last longer than four minutes. With a search warrant on the way, the police should not be expected to simply allow this reasonably suspicious conduct to go unchecked.
The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. ... A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. [Adams v Williams, 407 US 143, 145-146; 92 S Ct 1921; 32 L Ed 2d 612 (1972).]
IV
We hold that under the facts of this case the law enforcement officers had a reasonable, articulable, and particular suspicion that the defendants had engaged in buying, attempting to buy, or deliver ing drugs, and, thus, were justified in stopping the vehicle in which the defendants were riding.
Because the police were justified in making the investigatory stop, they would be justified in performing a protective patdown if they reasonably believed the defendants could be armed and dangerous, and, if such a finding is warranted, the remaining question is whether the patdown was within the parameters of Terry. Dickerson, 124 L Ed 2d 344. See 3 LaFave, Search and Seizure (2d ed), § 9.4(a), p 506. The defendants raised these issues before the Court of Appeals, and defendant Jones presents them to this Court; however, because of the finding of the Court of Appeals that the stop of the vehicle was unconstitutional, it was unnecessary for it to reach these questions.
Therefore, the case is reversed and remanded to the Court of Appeals for proceedings consistent with this opinion.
Boyle, Riley, Griffin, and Mallett, JJ., concurred with Brickley, J.
The officer in charge stated that on about twenty occasions this particular informant had given accurate information about drugs.
This second person and the informant had conducted a similar exchange two weeks earlier at the same residence, providing the police with probable cause to obtain the search warrant at that time.
Although this buyer did not know at either time that the purchase was for the police, the buyer was considered reliable on the basis of the previous purchase.
A field test later confirmed that the substance contained cocaine.
There is no corroborating evidence, other than the testimony of the officer in charge, that "Mr. Nelson” referred to the defendant, Tommie Nelson.
This conflicting testimony has a bearing on whether the patdown was within the parameters of Terry. However, while defendant Jones argues that issue in this Court, it was not addressed by the Court of Appeals, and therefore, we only deal with the validity of the stop of the automobile.
The defendants were bound over by the district judge, who re jected the challenge to the investigatory stop. The defendants then filed motions in the circuit court to quash the information arising from the search because it was the result of an invalid stop. The motions were granted; however, the Court of Appeals reversed, holding that it was error to grant the motion without an evidentiary hearing.
"This Court will not disturb a trial court’s ruling at a suppression hearing unless that ruling is found to be clearly erroneous.” People v Burrell, 417 Mich 439, 448; 339 NW2d 403 (1983). Although the trial judge’s resolution of a factual issue is entitled to deference, id., the facts of the present case are not in dispute. Hence, we are faced with the strict application of a constitutional standard to uncontested facts. Application of constitutional standards by the trial court is not entitled to the same deference as factual findings.
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .” US Const, Am IV. In this case, seeing no reason to interpret the Michigan constitutional protection from unreasonable searches and seizures, Const 1963, art 1, § 11, differently from its federal counterpart, under Mapp v Ohio, 367 US 643, 655; 81 S Ct 1684; 6 L Ed 2d 1081 (1961), our inquiry begins and ends with an analysis of the Fourth Amendment of the United States Constitution. People v Faucett, 442 Mich 153; 499 NW2d 764 (1993).
See People v Faucett, n 8 supra, for a review of the historical development of investigative stop jurisprudence.
Defendant Jones suggests that because the house was the home of two adults and a number of children, and because it contained the usual furnishings and personal items necessary for daily living, it was not the typical crack house found in Detroit that is usually abandoned and contains no more furnishings than necessary to conduct business. In contrast, the prosecutor argues that because one of the adults living in the house had admitted selling cocaine from the house and revealed who her supplier was, because drugs and paraphernalia had been found two weeks earlier, because cocaine had been found in every vehicle that left the house on the day of the first search, and because a controlled purchase had been witnessed the very day in question, this house would qualify as a crack house under anyone’s definition.
The defendants argue that the controlled purchase was flawed because the informant who was searched did not actually conduct the transaction, but a second individual who was not searched did. Defendant Nelson suggests that it is possible that the buyer did not get the cocaine from the house, but rather sold the unwitting informant what he had in his possession at the time, making entrance to the house only a pretext, and therefore, that the officers could not have formed the reasonable suspicion required to stop the defendants. In support of this contention, the defendant states that there is nothing in the record indicating whether the fifty dollars of marked money was ever found.
While we do not comment on the validity of the warrant partially based on the "uncontrolled” purchase, as far as distrusting the suspicion garnered from the transaction for purposes of stopping the defendants, we note that "[t]he process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain commonsense conclusions about human behavior; jurors as factfinders are permitted to do the same — -and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.” Cortez at 418. See also Illinois v Gates, 462 US 213, 233; 103 S Ct 2317; 76 L Ed 2d 527 (1983).
On the basis of the foregoing information applicable to the house alone, a search warrant was issued by a neutral and detached magistrate. While acknowledging that the evidence regarding the house is not particularized with respect to the persons in the car, we note that the standard for a search warrant is probable cause, which requires more than reasonable suspicion. Sokolow at 7. Further, the law enforcement officers had an interest in ensuring that no contraband or marked money left the house while awaiting the arrival of the search warrant. See Michigan v Summers, 452 US 692, 704-705; 101 S Ct 2587; 69 L Ed 2d 340 (1981). Moreover, courts have held that an "uncontrolled” purchase may be used to satisfy the requirements of probable cause, and the fact that the purchase is uncontrolled does not make it totally unreliable. United States v Fluker, 543 F2d 709, 713-714 (CA 9, 1976); United States v Satterwhite, 980 F2d 317, 321, n 5 (CA 5, 1992).
At the evidentiary hearing, defendant Jones argued:
The stop at this house, while it may fit the profile of a drug purchase stop, also fits the profile of somebody dropping off a birthday card, or stopping to pay a debt, or to be repaid on a debt, or to say hello, or to tell you I’ll pick you up for work at 6:00 o’clock in the morning, or can you pick me up ’cause my car is broken down, or a thousand and one other legitimate things.
The uniformed officers in marked units who conducted the investigative stop did not witness the alleged drug purchase. They were notified by the detective conducting the surveillance that the Camero was leaving the premises. It was apparently up to the detective to determine whether the vehicle and the behavior of its occupants fit the criteria of a drug purchase.
Our holding in the present case is consistent with our decision in Shabaz. The facts of Shabaz reveal that the defendant came out of an apartment complex in a high crime area of Detroit and could have left any number of apartments, not necessarily one of the apartments in which trouble had previously occurred. In the instant case, the defendants left a single family dwelling that law enforcement officers knew to be the site of cocaine trafficking. Moreover, the officers who observed the defendant in Shabaz were in plain clothes and in an unmarked car. The defendant was placing a paper bag under his vest, and, when he saw what appeared to be two strange men watching him, he began to run. On the basis of those facts, we held that the police officers did not have the requisite particularized suspicion to stop the defendant. The only factors were carrying a paper bag and running from a plain-clothes officer in a high crime area. There was not the entry, short stay, and exit from a house known to be the site of drug sales and expecting a delivery of drugs, that we have in the present case.
The prosecutor argues in the alternative that the police officers had a reasonable suspicion that a Jackson city ordinance making it unlawful to frequent , any place where illegal business is conducted was violated, citing People v Arterberry, 431 Mich 381; 429 NW2d 574 (1988). Because of our resolution of this case in the people’s favor, we need not address this argument. | [
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] |
Riley, J.
In this case we are asked to review the award of workers’ compensation benefits granted on the basis of alcoholism and a related nervous condition suffered by plaintiff. We find that the wcab erroneously included the plaintiff’s personal addiction to alcohol as a' variable in its decision to award disability benefits. Thus, we vacate the decision of the Court of Appeals and remand to the board to determine whether plaintiff sustained any disabling personal injury that is separate and apart from any disability caused by his alcoholism.
I
Plaintiff, born January 11, 1942, began his em ployment with defendant in May 1963. In his petition for hearing, plaintiff claimed disability in the form of personal injury or disablement from occupational disease resulting from repeated and injurious harassment in the course of employment. The nature of the disability was indicated as nerves and a nervous disability. Before the hearing referee, plaintiff testified that when he began working for defendant he drank moderately and experienced no nervous problems. Plaintiff testified further, however, that he developed a nervous condition in 1967 or 1968.
During his employment, plaintiff took several sick leaves, citing "nerves” as his complaint. The record establishes that he was hospitalized several times for acute alcoholism and associated nervous problems, including once, in September 1981, after he discontinued working for defendant. Plaintiff alleged several general incidents of harassment, such as being given work outside his job assignment, being blamed for the malfunction of defective machines, and not being properly trained to operate the larger trucks. Plaintiff alleges that this harassment provoked him to drink and caused him to develop a nervous disorder. He testified that until the last year of his employment, he was able to drink, control his nervous condition, and still function at work.
Plaintiff asserts that his last year at work with defendant was the most devastating, and was the cause of the ultimate permanent disability that ■ precludes him from working. In January 1981, just before his final disability leave, plaintiff was involved in a mishap while operating a plant truck. The truck tipped over because of improper loading and unloading. Plaintiff blamed his supervisor for the mishap, alleging a failure to instruct him regarding the proper loading of a truck. Plaintiff’s last day of work was January 9, 1981. The hearing referee determined the date of the disability to be January 19, 1981. Plaintiff retired with permanent disability effective September 1, 1981. At the time of the Workers’ Compensation Appeal Board decision, plaintiff was still a drinking alcoholic.
The hearing referee granted plaintiff’s claim for an open award on the basis of a nervous disability. The wcab, in a two to one decision, affirmed the hearing referee’s decision. The wcab majority found that "plaintiff’s disability stems from emotional problems and drinking, such that we cannot extract one from the other.” Slip op at 1. The board majority further found that plaintiff’s father was an alcoholic, that plaintiff began drinking at age thirteen or fourteen, that he is presently unable to control his drinking, id. at 9, and then proceeded to analyze the facts under Deziel v Difco Laboratories, Inc (After Remand), 403 Mich 1; 268 NW2d 1 (1978):
[I]f plaintiff’s emotional problems are linked to his work and were caused or aggravated by his work, contributing to his disability, in our view, plaintiff is entitled to compensation .... [Id. at 9.][ ]
The board majority concluded that 1) plaintiff is totally disabled; 2) although plaintiff’s testimony is vague with respect to dates, his testimony regarding job transfers, consultations with his union, and a work mishap establish the existence of work incidents triggering his emotional condition, and constitute personal injuries; and 3) that plaintiff honestly believes that work caused his disability. The wcab majority refused to utilize the analysis of Gacioch v Stroh Brewery Co, 426 Mich 612; 396 NW2d 1 (1986), finding the circumstances in Gacioch to be so unique as to limit the decision to its facts.
In a separate opinion, the dissenting board member stated that she would find that plaintiff failed to establish a sufficient causal nexus between his employment and his chronic alcoholism. WCAB, slip op at 13. The dissent concluded that a work nexus was not established because plaintiff’s nervous condition began in 1967, but plaintiff continued to work until 1981, and by plaintiff’s own admission, he could drink alcohol and still work.
The Court of Appeals affirmed the findings and decision of the wcab. The Court identified plaintiff’s illness as a psychiatric disability that caused or aggravated plaintiff’s alcoholism. It distinguished Gacioch on the basis of the plaintiff’s allegation in Gacioch of a disability due solely to alcoholism, while in the present case plaintiff alleges a psychiatric disability that is only partially linked to alcoholism. The Court then opined that the test established in Deziel was applicable, and that there was sufficient, competent evidence to support the board’s findings. We then granted defendant’s application for leave to appeal.
II
It is unclear from the findings of the wcab whether plaintiff’s alcoholism stemmed from an underlying psychiatric disorder or whether the psychiatric disorder arose out of an increase in plaintiff’s alcoholic condition. Hence, we disagree with the Court of Appeals identification of plaintiff’s illness as a psychiatric illness that caused plaintiff’s alcoholism. We also disagree with plaintiff’s assertion on appeal that it has been established that plaintiff’s alcoholism is a sequela of his nervous disorder.
The deposition testimony of the medical experts produced by both defendant and plaintiff demonstrates the ambiguity of plaintiff’s disability. From their testimony, it is not evident which disorder precipitated the other, or if either could have existed independently. Plaintiff was a moderate drinker before beginning work in 1963 for defendant, and before 1963, he did not suffer from any nervous condition. Plaintiff testified that his nervous condition developed about 1967 or 1968, and his drinking became progressively heavier during his employment with defendant. Plaintiff further testified that until his last year he could function at work despite his drinking and nervous condition. Although ambiguous with regard to the exact etiology of plaintiff’s disability, the factual findings made by the board and other evidence in the record clearly demonstrate that alcoholism played a primary role in plaintiff’s claimed injury.
We reject the invitation by plaintiff to expand the chapter three personal injury analysis of workers’ compensation claims to cover diseases of addiction. In order to be awarded benefits under a chapter three personal injury analysis, the claimant must show that he suffered a personal injury arising out of and in the course of his employment. Although no compensation is awarded for a disability caused by an ordinary disease of life, a claimant may recover workers’ compensation benefits when his employment aggravates, accelerates, or combines with a preexisting condition to produce a personal injury.
Alcoholism is a progressive disease. The compulsion and the consumption will accelerate until it is interrupted. It is in the nature of the disease that its victims will find conditions and circumstances at home, at work, and in between to justify the increased need for alcohol. It is not work and its attendant stresses that aggravate alcoholism; it is alcohol. It is not a job or occupation that compels alcoholics to consume alcohol; it is the disease from which they suffer. Individuals who suffer from alcoholism hold the most essential key to their recovery. It defies logic and what is now known about the nature of alcoholism to declare that a job or occupation is responsible for accelerating or aggravating a worker’s alcoholism when alcoholism is a progressive disease, and aggravation of which is caused by the alcohol itself rather than by employment.
In Gacioch, we recognized that chronic alcoholism is a disease. Id. at 618. We remanded that case to the wcab for a determination whether the plaintiff satisfied his burden of proving his claim: that the claimant, as a brewery worker, was more prone to develop alcoholism than the general public because of conditions characteristic of and peculiar to the business of the defendant. The Gacioch analysis confined compensation for diseases of addiction into a chapter four occupational disease analysis. Justice Brickley, writing separately, favored denial of compensation for aggravation of preexisting diseases where the "aggravating conditions are not required by the job and the disease is one from which recovery primarily depends upon personal motivation.” Id. at 629. Where a personal addiction plays a significant role in a claimed mental or emotional injury, a finding that such an injury is work related should be precluded. Justice Boyle, in a concurring opinion joined by Justice Riley, indicated that she was not convinced that "alcoholism or a predisposition thereto, whether or not aggravated or accelerated by the conditions of employment, was contemplated as a compensable injury.” Id. at 621.
Because there is no indication that the Legislature intended to include alcoholism as a chapter three personal injury or a preexisting condition that is aggravated, accelerated, or combined with conditions of employment resulting in disability or death, and because there exists persuasive evi dence to the contrary, we adhere to the view that alcoholism is not a "personal injury” that arises out of and in the course of employment for purposes of a workers’ compensation disability. In this case, we conclude that alcoholism is not a compensable personal injury under chapter three of the Workers’ Disability Compensation Act.
In the present case, the wcab found that plaintiff’s disability resulted from emotional problems and alcoholism. Because the plaintiff’s alcoholism was a significant factor in the board’s decision that the plaintiff was disabled, we vacate the Court of Appeals decision and remand to the board to determine whether the plaintiff suffered a disabling personal injury that is separate and apart from his alcoholism. If there is insufficient evidence of an independent disabling personal injury, plaintiff has failed to carry his burden of proof, and compensation should therefore be denied.
Brickley, Boyle, and Griffin, JJ., concurred with Riley, J.
The workers’ compensation statutes applicable at the time this claim was filed are: MCL 418.301(1); MSA 17.237(301X1) which provided:
An employee, who receives a personal injury arising out of and in the course of his employment by an employer who is subject to the provisions of this act, at the time of such injury, shall be paid compensation in the manner and to the extent provided in this act, or in case of his death resulting from such injuries the compensation shall be paid to his dependents as defined in this act. Time of injury or date of injury as used in this act in the case of a disease or in the case of an injury not attributable to a single event shall be the last day of work in the employment in which the employee was last subjected to the conditions resulting in disability or death.
And, MCL 418.401(c); MSA 17.237(401)(c) which provided:
"Personal injury” shall include a disease or disability which is due to causes and conditions which are characteristic of and peculiar to the business of the employer and which arises out of and in the course of the employment. Ordinary diseases of life to which the public is generally exposed outside of the employment shall not be compensable.
Plaintiff testified that this nervous condition began about ten years after he began working with defendant, which would be about 1973. He then added that the condition began in 1967 or 1968.
The board did not directly address plaintiff’s disability with respect to alcoholism.
Unpublished opinion per curiam of the Court of Appeals, decided May 10, 1991 (Docket No. 125457).
Id. at 1.
Id. at 2.
439 Mich 1012 (1992).
This Court has the responsibility to review questions of law involved in the final order of the appeal board, determine whether there was fraud associated with the findings of fact, and decide whether there is any competent evidence to support the findings of fact made by the board. Const 1963, art 6, § 28; MCL 418.861; MSA 17.237(861). Aquilina v General Motors Corp, 403 Mich 206, 213; 267 NW2d 923 (1978). The wcab found that plaintiff is an alcoholic, and that he has "emotional problems [that] are inextricably connected to his drinking problems, which, together, disable plaintiff.” WCAB, slip op at 9.
Alcoholism and major depression appear to be independent entities, but symptoms of depression may develop during the course of alcoholism, and some patients with affective disorders may drink more when they are ill. Substance abuse also may increase the intensity of symptoms of preexisting primary psychiatric disorders. However, research studies indicate that 70 to 80 percent of patients with severe depression do not increase their drinking, and that only 5 to 10 percent of patients with primary major depressive disorders actually develop secondary alcoholism .... [United States Department of Health and Human Services, Seventh Special Report to the US Congress on Alcohol and Health from the Secretary of Health and Human Services (Maryland: National Institute on Alcohol Abuse and Alcoholism, 1990), p 421. Citations omitted.]
In the present case, plaintiff does not argue that he has established an occupational disease. Rather, he argues that under a chapter three personal injury analysis he has established that the employment aggravated, accelerated, or combined with his preexisting condition to produce a personal injury.
Contrary to the dissent’s assertion (post, p 174), we do not "blame” the alcoholic for his addiction. But we do assert what is now conventional wisdom in the treatment of addictions that one of the symptoms of the disease is the need for the alcoholic to find and fix blame for his drinking.
Once the alcoholic begins to drink, he may be no more able to control the compulsion to continue drinking than the tuberculosis patient can voluntarily control his coughing. [Hammond, ed, Almost All You Ever Wanted to Know* About Alcohol *But Didn’t Know Who to Ask (Michigan: Alcohol Research Information Service, vol 11, no 2, 1991), p 92.]
The National Council on Alcoholism and Drug Dependence, Inc., and the American Society of Addiction Medicine, in 1990, defined alcoholism as follows:
"Alcoholism is a primary, chronic disease with genetic, psychosocial and environmental factors influencing its development and manifestations. The disease is often progressive and fatal. It is characterized by continuous or periodic: impaired control over drinking, preoccupation with the drug alcohol, use of alcohol despite adverse consequences, and distortions in thinking, most notably denial.” [National Council on Alcoholism and Drug Dependence, Inc., pamphlet, "The Disease of Alcoholism” (1993).]
The Supreme Court of North Dakota has acknowledged that "providing an excuse for voluntarily drinking [work environment and unfavorable work appraisal] cannot be a substantial contributing factor to the alcoholism.” Darnell v North Dakota Workers Compensation Bureau, 450 NW2d 721, 726 (ND, 1990).
Alcoholics can always give a reason why they drink: Our team won, or our team lost; it’s too hot, it’s too cold, women alcoholics drink because they have nothing to do at home, or because they have too much to do in a career. [Alcohol Problems and Alcoholism: A Comprehensive Survey, James E. Royce (The Free Press, Macmillan, New York, 1989), p 98.]
[Generally speaking, alcoholism is repeated drinking that causes trouble in the drinker’s personal, professional, family or school life. ["The Disease of Alcoholism,” n 12 supra.]
Counseling often includes a confrontational focus, based on the rationale that alcoholics must be confronted with the reality of their problem before behavior change can take place.
[Seventh Special Report, n 9 supra, p 409.]
One of the problems with the disease concept of alcoholism is that those who are alcoholic may find it difficult to understand their personal responsibility, not only in developing alcoholism, but in recovery as well. Alcoholism is the kind of disease in which the patient has an active role in development of the condition, and the patient must also play an active role in the recovery process. [Almost All You Ever Wanted to Know, supra, p 92.]
The counselor expects the client to assume responsibility for his actions. You do not buy into the client’s view of himself as either a pawn of fate or helpless victim. . . .You make it clear that you see the client as an adult who is accountable for his choices. Simultaneously, you are aware that an alcoholic, when he consumes alcohol, is abdicating control of his life to a drug. [Kinney & Leaton, Loosening the Grip: A Handbook of Alcohol Information (Missouri: The C. V. Mosby Company, 1978), p 150.]
Any alcoholic who seeks assistance and is willing to actively participate in rehabilitation efforts can realistically expect to lead a happy, productive life. [Loosening the Grip, n 16 supra, p 133.]
The only cure for alcoholism is within the alcoholic. When he makes up his mind to stop, the cure starts. It follows, then, that he has the control. If he chooses not to exercise the control, others should not be burdened. [Arnoto v Bd of Review, Ohio Bureau of Employment Services, 19 Ohio App 3d 308, 310; 484 NE2d 245 (1984) (O’Neill, P.J., dissenting).]
In Gacioch, this Court assessed the validity of the plaintiff’s claim of disability due to alcoholism under a chapter four analysis. An occupational disease analysis requires the claimant to prove that his disease or disability is due to causes and conditions that are characteristic of and peculiar to the employer and arises out of and in the course of employment.
Florida has reached a similar conclusion in its workers’ compensation law, Fla Stat Ann 440.02(1), precluding workers’ compensation benefits for disability due to alcoholism. Two reasons behind this statute are that (1) the problem of alcoholism is self-inflicted rather than industry related, hence industry should not be required to bear the consequences of the problem; and (2) workers’ compensation is not a general health insurance system. See Milmir Construction v Smith, 582 So 2d 52, 53, n 1 (Fla App, 1991). See also Dan River, Inc v Shinall, 186 Ga App 572, 573; 367 SE2d 846 (1988) (Ga Code Ann 34-9-l[4] establishes that alcoholism is not deemed a personal injury arising out of and in the course of employment). | [
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] |
AFTER SECOND REMAND
Levin, J.
(to reverse). The questions presented are (1) whether the State Tenure Commission may reduce the discipline imposed by a school board from discharge to suspension where it finds that the misconduct charged by a school board against a tenured teacher, while proven, did not constitute reasonable and just cause for discharge, and (2) if so, whether the Court of Appeals erred in reversing the Tenure Commission’s decision that there was not reasonable and just cause for discharge.
We conclude that the Tenure Commission is empowered to so reduce the discipline, and that its decisions that there was not reasonable and just cause for discharge and that an appropriate discipline was a six-month suspension were supported by the evidence and, accordingly, that the Court of Appeals erred in reversing the commission’s decision in this case.
i
John Grindstaff, a tenured teacher, was discharged by the Lakeshore Public Schools Board of Education after a hearing held by the school board pursuant to the provisions of the teacher tenure act. The Tenure Commission, on appeal, reduced the discipline from discharge to suspension without pay for one semester. The circuit court affirmed. The Court of Appeals denied the school board’s application for leave to appeal. This Court remanded the case to the Court of Appeals for consideration as on leave granted.
The Court of Appeals reversed and reinstated the decision of the school board. The Court said that Grindstaff, "[d]espite being constantly reprimanded, suspended twice and taking a one-year leave of absence,” was "still unable to reform his conduct,” that he continued to violate rules and directives after he was "warned, on at least four occasions, that future violations could result in his dismissal,” and that he was "repeatedly warned and reprimanded for using physical force on students, leaving his classes unsupervised for prolonged periods of time, and leaving the school building during school hours without permission.”
The school board had, said the Court of Appeals, made "diligent efforts to reform” Grindstaff’s behavior. The Court said that "a school board is justified in dismissing an insubordinate teacher who persistently refuses to abide by administrative rules and directives.” The Court said that the Tenure Commission’s decision to reduce the penalty to a one-semester suspension was not supported by competent, material, and substantial evidence. Another brief suspension was not, said the Court, "warranted by the evidence,” nor would it be "an appropriate penalty in light” of Grindstaff’s conduct.
Once again, this Court remanded the case to the Court of Appeals. The order of remand stated that the Court of Appeals should determine whether the Tenure Commission has the authority, where it concludes that a school board’s finding of misconduct was proven, to reduce to suspension a discipline of discharge ordered by the school board.
The Court of Appeals on the second remand found that the teacher tenure act does not authorize the Tenure Commission "to modify or reduce” a discipline from discharge to suspension and that the Tenure Commission erred in its construction of the act and in assuming such authority:
In modifying respondent’s dismissal the Tenure Commission took it upon itself to decide how best to discipline the teacher. There is no provision in the act which expressly or impliedly grants this power to the Tenure Commission. Its role was limited to determining if the dismissal was arbitrary or unreasonable. [Lakeshore Bd of Ed v Grindstaff (On Second Remand), 177 Mich App 225, 228; 441 NW2d 777 (1989).]
II
There were four charges. The first concerned an incident on March 3, 1983, and the second an incident two weeks later on March 17. Grindstaff had left his class unattended on those dates. The third charge referred to earlier incidents for which Grindstaff had received written reprimands or warnings and two suspensions, the longest of which was for three days. The fourth charge was insubordination and was based on the same allegations as the third charge.
The first charge was that on March 3, 1983, Grindstaff had left his fourth-hour class for twenty to thirty minutes while his students took a test. Two students testified that other students were cheating during Grindstaff’s absence. Grindstaff said he was in a nearby classroom working a crossword puzzle. The exam was subsequently thrown out. The Tenure Commission found that a rule or policy requiring the teacher’s presence in the classroom and administrative permission to deviate from such rule to be reasonable, and that the evidence was sufficient to support the charge.
The second charge was that on March 17, 1983, Grindstaff had left his seventh-hour class unattended and unsupervised, without prior approval, for approximately fifteen minutes. Grind-staff testified that he left the classroom to seek out a student to confirm an appointment made at the request of the student’s parents. The evidence was conflicting whether he was gone five or fifteen minutes. The Tenure Commission found that Grindstaff’s reason for leaving was not compelling and that the charge was proven by a preponderance of the evidence.
The Tenure Commission, however, went on to find that the penalty of discharge imposed by the school board was inappropriate, and that there was not reasonable and just cause for discharge. The commission stated that while insubordination may constitute reasonable and just cause for discharge, insubordination does not automatically justify discharge in all cases. Grindstaff had shown himself to be a "true motivator” of students in his eighteen years of service. He had "demonstrated outstanding skills as an educator.” His was "the classic case of a good teacher, but a poor employee.”
Grindstaff had been suspended on two other occasions, the longest suspension was for three days. "Bearing in mind the concept of progressive discipline, as well as the nature of his March 1983, offenses—the only new misconduct which precipitated the instant case,” the commission found that a "lengthy suspension” would serve as an adequate deterrent to Grindstaff and others, and concluded that the record "established reasonable and just cause” for a suspension without pay for the first semester of the school year.
III
The tenure act provides that after satisfactory completion of the probationary period, a teacher shall acquire tenure and "shall not be dismissed or demoted except as specified” in the act:
—A tenured teacher may be "discharge^] or demot[ed]” only "for reasonable and just cause ”
—A tenured teacher may appeal "any decision” of a school board to the state tenure commission.* —The Tenure Commission is "vested with such powers as are necessary to carry out and enforce the provisions of ” the act.
—The Tenure Commission shall "act as a board of review for all cases appealed” from a decision of a school board.
A
Grindstaff contends that the Tenure Commission has the authority to modify penalties imposed by a school board. He contends that the purpose of the act is to protect teachers’ rights and prevent turnover in the teaching profession. That purpose is achieved by de novo review of decisions of local school boards. De novo review means and requires that the Tenure Commission determine any penalty to be imposed. The commission’s decision was supported by the record. The Court of Appeals erred in reversing the Tenure Commission’s decision.
The school board contends that while the Ten ure Commission reviews the decision of a school board de novo, that power does not extend to the modification of discipline imposed by a school board. Absent a determination that there was a procedural irregularity or that the school board acted arbitrarily or capriciously in imposing discharge, the Tenure Commission must affirm a discharge decision where the charged misconduct is proven. Limitations must, the school board argues, be placed on the reviewing authority of the Tenure Commission to avoid unwarranted interference with local control of schools. Acceptance of the Tenure Commission’s view of its de novo reviewing authority would reduce disciplinary proceedings before a school board to an idle ceremony. The determination of the appropriate measure of discipline requires the exercise of discretion, and the decision of the school board must be given deference by the Tenure Commission.
The school board urges that where the punishment does not fit the crime, the Tenure Commission is empowered to reverse the decision of the school board and order reinstatement if reasonable and just cause has not been established or if the discipline was arbitrary, capricious or imposed in bad faith. The Tenure Commission’s decision to reduce Grindstaff’s discharge to a one-semester suspension was not supported under the facts established before the commission or by competent, material, and substantial evidence on the whole record. _
B
In Rehberg I, the teacher was removed by the school board. The Tenure Commission reversed. This Court reversed and remanded to the Tenure Commission for further proceedings, following which this Court again considered the matter in Rehberg IT.
In Rehberg I, the school board made an argument somewhat similar to the argument advanced by the school board in the instant case. This Court described the issue there presented as follows:
The sole question presented here is whether the State tenure commission, acting as a "Board of Review,” hears cases de novo or only for the purpose of determining whether the original proceedings before the controlling board were proper, without error, and in accordance with the provisions of the tenure act.[ ] [Emphasis added.]
This Court responded that the tenure act provides a "safeguard upon the arbitrary or unreasonable dismissal of teachers and is designed for their protection. It does not, however, otherwise diminish or interfere with the administrative power of the local controlling board, nor require it to indulge in idle ceremonies.”
At the first Tenure Commission hearing in Rehberg, a copy of the transcript of testimony taken before the school board was offered in evidence. The Tenure Commission refused to receive it and announced that the parties would have a hearing de novo. This Court reversed the Tenure Commission in Rehberg I and remanded to the commission for further proceedings, stating that the commission should "review and consider the record made before the controlling board, but is not precluded from taking such additional testimony as in its discretion may be required.”
On remand from this Court, the Tenure Commission held a "meeting” at which additional testimony was taken. The commission entered an order reversing the order of the school board and restored the teacher to his former position. In Rehberg II, this Court said there was substantial and competent evidence to support the Tenure Commission’s finding that the teacher did not have a fair hearing before the school board. At the second hearing before the Tenure Commission, testimony was offered in support of the teacher. The Tenure Commission "reviewed the testimony offered at the second hearing, as well as the testimony offered before the board of education, and concluded that Clark Rehberg was not discharged for reasonable and just cause.” The Court noted that the evidence taken at the second hearing was not presented to, or passed on, by the school board.
The school board in Rehberg II argued, again paralleling the argument advanced by the school board in the instant case, that the Tenure Commission "has only power to act as a board of review to determine whether or not the school board carried out rights granted under the tenure act, and that the act in question does not give the State tenure commission the right to make find ings of fact and thereby substitute its opinion for that of the board of education.” This Court rejected the argument, stating that "the commission, after hearing the new testimony together with the testimony presented to the school board, may make an independent ñnding of facts, opinionate upon the same, and enter an order accordingly”
This Court added that the question on judicial review from the Tenure Commission was whether there was "competent evidence to support the ñndings of fact made by the commission.” It concluded that there was, and affirmed the action of the commission in reinstating the teacher.
In reaching its conclusion concerning the authority of the Tenure Commission, this Court relied on the provisions of the tenure act stating that the Tenure Commission shall act as a board of review, and that the conduct of an appeal before the commission shall be the same as provided in article 4, section 4, including the power to subpoena witnesses. "We see no purpose in the power of the commission to take further testimony if they cannot consider it upon the issues involved.”
This Court reserved in Rehberg II the question whether the Tenure Commission had the power to make an independent finding of fact where the commission had only the record made before the school board. That question was resolved in Long v Royal Oak Twp Bd of Ed, 350 Mich 324, 327; 86 NW2d 275 (1957), where the Court responded in the affirmative to the question whether the Tenure Commission may, where evidence is produced before the school board to support its ruling, vary or reverse the finding of the school board without new material evidence being presented to the commission. The Court declared:
—It is ruled again, as in Rehberg II, that the commission "may make an independent finding of facts, opinionate upon the same, and enter an order accordingly.”
—"[A]ll questions of fact” decided by a school board, as well as questions of law, are subject "to review and determination de novo by the commission.”
—The commission is vested with the "duty and authority to determine, anew and as original questions, all issues of fact and law theretofore decided by the controlling board.” (Emphasis added.)
This Court has thus rejected arguments that the authority of the Tenure Commission is limited to a determination of whether the "proceedings” before the school board "were proper,” and that the act does not empower the Tenure Commission to make "findings of fact and thereby substitute its opinion for that of the” school board even where additional evidence was taken before the Tenure Commission, and that the act does not so empower the Tenure Commission to vary the findings of the school board and make findings of fact and "substitute” its opinion for that of the school board where the only record was made before the school board and no additional evidence was taken before the Tenure Commission.
In sum, although the act, a safeguard against the "arbitrary or unreasonable” dismissal of a teacher, does not "otherwise diminish or interfere with the administrative power of the local controlling board, nor require it to indulge in idle ceremonies,” an appeal to the commission operates to subject "all questions of fact” and law decided by the school board "to review and determination de novo” by the Tenure Commission. Upon such review, the Tenure Commission has the "duty,” as well as the authority, to determine "anew and as original questions” all issues of fact and law although those issues were theretofore decided by the school board, and to "make an independent finding of facts, opinionate upon the same, and enter an order accordingly.” Upon judicial review by this Court, the question is whether there was "competent evidence to support the findings of fact made by the commission.”
IV
The tenure act does not, indeed, in terms provide that the Tenure Commission may take any action other than to decide whether the "dismissal” of a teacher was for "reasonable and just cause.” It is thus possible to argue that where the commission finds that the misconduct charged by the school board against a tenured teacher, while proven, did not constitute reasonable and just cause for discharge, it must reinstate the teacher and that the commission is without power to substitute its judgment for that of the school board by imposing the lesser discipline of suspension for a period of time that in the judgment of the commission is supported by reasonable and just cause.
The argument ignores that the tenure act leaves much to construction, as numerous decisions of this Court attest. The act does not, in terms, provide protection for, or an appeal to, the commission from a decision of a school board suspending rather than discharging a teacher. Read liter ally, there would be no appeal from a school board decision suspending a teacher for a day, a week, a semester, or a year. Nonetheless, the act has been construed, as a matter of practice, to safeguard a tenured teacher against suspension except for reasonable and just cause and to provide for review of a suspension by the Tenure Commission. The act thus has been construed, although it does not literally provide therefor, to mean, in effect, that the commission shall determine whether there was reasonable and just cause for the imposition of the "discipline” imposed by the school board, whether the discipline imposed was suspension or discharge.
The commission, accordingly, is empowered to determine "anew and as an original question” whether the discipline, suspension or discharge, that was imposed was for reasonable and just cause. That construction clearly is required, although the act does not literally so provide in respect to the imposition of a discipline other than discharge.
Similarly, although the act does not literally provide that the Tenure Commission, empowered —by judicial construction—to determine "anew and as original questions” all issues of fact and law, although such issues of fact and law were "theretofore decided by the controlling board,” may reduce a discipline imposed by a controlling board, we are of the opinion that it would not be consistent with the purpose of the act to require reinstatement of a teacher with back pay without imposition of any discipline where the commission finds that the misconduct charged by the school board against the teacher was proven, but that the discipline, suspension or discharge, imposed by the school board is excessive and, specifically, in the instant case, there was not reasonable and just cause for discharge.
Once this Court decided that a decision of a school board to impose the discipline of discharge was subject to redetermination by the Tenure Commission, empowered to determine "anew and as original questions, all issues of fact and law theretofore decided by the” school board, and that the redetermination was to be in respect to "all issues of fact and law,” and that its "duty” on such redetermination required it to "make an independent finding of facts, opinionate upon the same, and enter an order accordingly,” it was in effect decided that the Tenure Commission was empowered to "substitute” its judgment for that of the school board regarding the discipline to be imposed as an issue of law and fact.
v
. We are also persuaded that there was competent evidence to support the "independent” finding of fact and law by the Tenure Commission that there was not reasonable and just cause for the imposition of the discipline of discharge by the school board in light of Grindstaff’s lengthy service, his teaching and motivating skills, the history of prior discipline, two suspensions, none of which were for longer than three days, the current charges, both incurred in the same month, the nature of the charges, leaving the classes unattended, and its conclusion that the record established reasonable and just cause for the imposition of a discipline of suspension for one semester, and, apparently, no longer.
Reversed and remanded to the Tenure Commission for implementation of its order.
Cavanagh, Boyle, and Archer, JJ., concurred with Levin, J.
MCL 38.101 ef seq.; MSA 15.2001 et seq.
Lakeshore Bd of Ed v Grindstaff, 428 Mich 863 (1987).
Lakeshore Bd of Ed v Grindstaff (On Remand), unpublished opinion per curiam of the Court of Appeals, decided March 11, 1988 (Docket No. 98748).
Lakeshore Bd of Ed v Grindstaff, 431 Mich 904 (1988).
Lakeshore Bd of Ed v Grindstaff (On Second Remand), 177 Mich App 225; 441 NW2d 777 (1989).
Grindstaff was charged with repeated acts of disobedience and failure to abide by administrative directives, rules, regulations, and policies.
The incidents referred to were leaving the classroom unsupervised and without permission, leaving the school building during unauthorized times, and the use of physical force on students.
The incidents resulted in written reprimands or warnings and two suspensions. One suspension was for arranging to purchase milk at student prices, and one for leaving a classroom unattended and unsupervised without permission.
The Tenure Commission found that the third charge was sustained and that there was a pattern of unacceptable conduct.
The Tenure Commission found that insubordination had been shown by a preponderance of the evidence in that Grindstaff wilfully disobeyed administrative directives and policies despite a full understanding of them.
The commission said:
While we have held insubordination may constitute just and reasonable cause for discharge, a finding of insubordination does not automatically justify discharge in all cases. In this case, there is no question that appellant has a history of disciplinary actions. However, we are very much aware of his nearly twenty years service to the district, and the evidence presented reflecting that, during that time, appellant demonstrated outstanding skills as an educator. He has gained respect of students and has shown himself to be a true motivator. We also find, however, that appellant has used poor judgment and has been insubordinate. Thus, appellant presents the classic case of a good teacher, but a poor employee.
This Commission recognizes that stern discipline is required to insure future compliance with rules and policies if the board is to exercise its duty to properly operate the district. Further, we find it crucial to protect against poor morale among students and staff which results when a tenured teacher is permitted to engage in misconduct with the misconception that any discipline will always fall short of discharge. Yet, we cannot ignore the lengthy and positive teaching contribution appellant has made. Therefore, while it is clear that a serious penalty is appropriate here, we find discharge is simply too severe for the conduct of this particular teacher. Appellant has been suspended on two other occasions. The longest suspension was for three days. Bearing in mind the concept of progressive discipline, as well as the nature of his March 1983, offenses—the only new misconduct which precipitated the instant case—we find that suspension without pay for a period of one semester is reasonable punishment under the circumstances. Further, such a lengthy suspension serves as an adequate deterrent to others who would consider engaging in such misconduct. We ñnd, therefore, that the record has established reasonable and just cause for suspension without pay through the completion of the first semester of the 1983-84 school year. Therefore, we conclude that the penalty of discharge must be modified accordingly. [Emphasis added.]
After the satisfactory completion of the probationary period, a teacher shall be employed continuously by the controlling board under which the probationary period has been completed, and shall not be dismissed or demoted except as specified in this act. [MCL 38.91; MSA 15.1991.]
Discharge or demotion of a teacher on continuing tenure may be made only for reasonable and just cause, and only after such charges, notice, hearing, and determination thereof, as are hereinafter provided. [MCL 38.101; MSA 15.2001.]
A teacher who has achieved tenure status may appeal any decision of a controlling board under this act within 30 days from the date of such decision, to a state tenure commission. The state tenure commission shall provide for a hearing to be held within 60 days from the date of appeal. Notice and conduct of such hearing shall be the same as provided in article 4, section 4 of this act, and in such other rules and regulations as the tenure commission may adopt. [MCL 38.121; MSA 15.2021.]
The teacher tenure act provides that "[a]ll charges against a teacher shall be made in writing, signed by the person mating the same, and filed” with the controlling board; "The controlling board, if it decides to proceed upon such charges, shall furnish the teacher with a written statement of the charges . . . and shall, at the option of the teacher, provide for a hearing” within thirty to forty-five days after the filing of such charges. MCL 38.102; MSA 15.2002.
Article 4, § 4 of the act provides that the hearing shall be public or private, at the option of the teacher; "[n]o action shall be taken resulting in the demotion or dismissal of a teacher except by a majority vote of the members of the controlling board” (MCL 38.104[b]; MSA 15.2004[b]); the teacher and the person filing charges may be represented by counsel; testimony shall be on oath or affirmation and a stenographic record shall be made; "[a]ny hearing held for the dismissal or demotion of a teacher” must be concluded by decision in writing rendered within fifteen days with a copy furnished to the teacher within five days after decision (MCL 38.104[f]; MSA 15.2004[f]); the controlling board shall have the power to subpoena witnesses and documentary evidence either on its own initiative or at the request of the teacher.
The tenure commission is hereby vested with such powers as are necessary to carry out and enforce the provisions of this act. [MCL 38.137; MSA 15.2037.]
The tenure commission shall act as a board of review for all cases appealed from the decision of a controlling board. [MCL 38.139(1); MSA 15.2039(1).]
Teacher unions filed briefs amici curiae in support of Grindstaff asserting that the Tenure Commission has the responsibility to evalu ate and determine the penalty for teacher misconduct, and that the Court of Appeals decision was incorrect.
The Attorney General filed a brief in behalf of the Tenure Commission contending that the Tenure Commission may reduce discipline from discharge to suspension where it finds that misconduct, albeit proven, did not constitute reasonable and just cause for discharge.
See n 20 and the accompanying text.
An amicus brief was filed by an association of school boards stating that there is no authority in the teacher tenure act permitting the Tenure Commission to modify a discipline imposed by a school board where the Tenure Commission adopts or affirms the school board’s determination that the teacher had engaged in misconduct.
Rehberg v Melvindale Bd of Ed, 330 Mich 541; 48 NW2d 142 (1951).
Rehberg v Melvindale Bd of Ed, 345 Mich 731; 77 NW2d 131 (1956).
Rehberg I, p 542.
Id., p 548.
id.
Rehberg II, supra, p 737.
Rehberg H, supra, p 739. (Emphasis added.)
Id., p 740. (Emphasis added.)
Id. (Emphasis added.)
See n 11.
Rehberg II, supra, p 740.
See Plymouth-Canton Community Schools v State Tenure Comm, 435 Mich 76; 457 NW2d 656 (1990).
We find no occasion for review of the evidence appellant discusses in its brief. It is ruled again, as in the second Rehberg Case, that the commission "may make an independent finding of facts, opinionate upon the same, and enter an order accordingly.” ... To this we will add that an appeal to the commission under said article 6 operates to subject all questions of fact decided by the controlling board, as well as requisite questions of law, to review and determination de novo by the commission.
Our stated view of the commission’s administrative function stems particularly from language appearing in section 1 of said article 6, by which the commission is directed to conduct its hearing on appeal "the same as provided in article 4, section 4 of this act.” Said section 1, considered with section 4 of article 4, discloses clear legislative intent that the commission—following appeal by a teacher under said article 6—be vested with duty and authority to determine, anew and as original questions, all issues of fact and law theretofore decided by the controlling board. [Long, supra, pp 326-327. Emphasis added.]
Rehberg I, supra, p 542.
Rehberg II, supra, p 739. (Emphasis added.)
Long, supra, p 326.
Rehberg I, supra, p 548. (Emphasis added.)
Id.
Long, supra, p 326.
Id., p 327.
Rehberg II, p 740.
And now that the Court of Appeals has been created, upon judicial review by the Court of Appeals as well.
Rehberg II, supra, p 740. We note that Rehberg II was decided before the adoption of Const 1963, art 6, § 28, providing for a determination on judicial review of whether an administrative ruling was "supported by competent, material and substantial evidence on the whole record.” See Beebee v Haslett Public Schools (After Remand), 406 Mich 224, 227; 278 NW2d 37 (1979).
See Rehberg I, supra, Rehberg II, supra, Long, supra, Munro v Elk Rapids Schools (On Rehearing), 385 Mich 618; 189 NW2d 224 (1971), Weckerly v Mona Shores Bd of Ed, 388 Mich 731; 202 NW2d 777 (1972), Shiffer v Gibraltar School Dist Bd of Ed, 393 Mich 190; 224 NW2d 255 (1974), Ajluni v West Bloomfield School Dist Bd of Ed, 397 Mich 462; 245 NW2d 49 (1976), Dryden v Marcellus Community Schools Bd of Ed, 401 Mich 76; 257 NW2d 79 (1977), Lipka v Brown City Community Schools (On Rehearing), 403 Mich 554; 271 NW2d 771 (1978), Breuhan v Plymouth-Canton Community Schools, 425 Mich 278; 389 NW2d 85 (1986), and Belanger v Warren Consolidated School Dist Bd of Ed, 432 Mich 575; 443 NW2d 372 (1989).
A suspension is deemed for purposes of Tenure Commission review to be a "demotion.”
The school board is not empowered to appeal its own decision to the Tenure Commission. Only the teacher may appeal the school board’s decision to the Tenure Commission. We therefore see no basis on which the Tenure Commission might impose a greater discipline than that imposed by the school board.
Alternatively, the commission might remand to the school board for imposition of a lesser discipline for which, in the school board’s judgment, there is reasonable and just cause, without specification or expression of opinion by the Tenure Commission of what lesser discipline would, on further appeal, be deemed to have been supported by reasonable and just cause. Such an alternative course might, however, unduly prolong the review process with successive redeterminations by the Tenure Commission and remand to the school board to try once again.
Rehberg II, supra, p 740. | [
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Brickley, J.
The issue before us is whether the Whistleblowers’ Protection Act (wpa) prohibits an employer from discharging an employee who files a criminal complaint against a fellow employee for an assault that arose out of a dispute over the handling of the employer’s business, during business hours, and at the site of employment. We are also asked to decide whether the public policy exception to the employment at will doctrine applies to the facts of this case. In a case of first impression for this Court, we find that the wpa applies and prohibits discharge under these facts. We also find that the wpa preempts any public policy claim arising out of the same facts. While summary disposition for the defendant on the public policy claim was proper, the trial court improperly granted a directed verdict for the defendant on the wpa claim. Therefore, the judgment for the directed verdict is reversed, and the case is remanded for trial of the wpa claim.
I
Plaintiff, Michael L. Dudewicz, worked as a parts manager for an automobile dealership, Norris Schmid, Inc., defendant. On the morning of November 4, 1987, Dudewicz attempted to obtain warranty service for a customer who, as a wholesale buyer, did. a lot of business with Norris Schmid. To get better service for the customer, Dudewicz enlisted the aid of one of the dealership’s owners, Samuel Norris. Together, the two men sought the assistance of the service manager, Dick Boehm, who agreed to do the work for the customer under warranty.
After Norris. left the service area, Dudewicz alleged that the service manager reached over the service counter and grabbed Dudewicz by the collar and tried to pull him across the. counter. Dudewicz alleged that Boehm told him never to bring the owner into the service area again. During the course of this fracas, Dudewicz alleged that the service manager tore buttons off his shirt, broke a gold chain from around his neck, and left fingerprints on his neck. That same day, Dudewicz told Norris Schmid’s new car sales manager about the incident and also filed criminal charges with the Midland County Prosecutor, alleging assault and battery.
Dudewicz testified that upon entering work the morning of December 1, 1987, he was called to Norris’ office and told to drop the criminal charges against the service manager or be fired. He was also told to leave the dealership. Dudewicz left the premises because he believed he had been fired; he also believed he could regain his job if he agreed to drop the criminal charges. Dudewicz then contacted an attorney who counseled him to return to work. When Dudewicz did return to the dealership on December 3, 1987, Norris told him the dealership considered him to have quit and that he had to leave the premises. Dudewicz argued that he had not quit, but had, in fact, been fired. Further, Dudewicz refused to leave unless provided with a letter of termination. Norris refused to comply with this request and called the police to escort Dudewicz from the premises.
Subsequently, Dudewicz filed a two-count complaint, alleging that his termination violated Michigan’s Whistleblowers’ Protection Act as well as public policy. Following discovery, Norris Schmid sought and received summary disposition under MCR 2.116(C)(8), on the ground that the public policy argument failed to state a claim upon which relief could be granted. Then, after hearing proofs on the remaining count, Norris Schmid sought and received a directed verdict, under MCR 2.515, on the ground that Dudewicz failed to show that it had violated the Whistleblowers’ Protection Act. The trial court denied a motion to reconsider this verdict.
Dudewicz appealed as of right in the Court of Appeals, which reversed. 192 Mich App 247; 480 NW2d 612 (1991). The Court first addressed the public policy claim and found that Dudewicz had alleged an implied cause of action for retaliatory discharge because " 'the reason for a discharge was the employee’s exercise of a right conferred by a well-established legislative enactment.’ ” Id. at 251, quoting Suchodolski v Michigan Consolidated Gas Co, 412 Mich 692, 696; 316 NW2d 710 (1982). On the basis of federal precedent, Pratt v Brown Machine Co, 855 F2d 1225 (CA 6, 1988), the Court was satisfied that the ability to file a criminal complaint as the victim of a crime was a right conferred by a "well-established legislative enactment.” Therefore, Norris Schmid’s discharge vio lated a public policy that encouraged victims of crime to file complaints. Otherwise, the Court believed, "[t]o allow the discharge of an at-will employee because of a choice to file a criminal complaint against a fellow employee would force a choice between justice and livelihood. It is the public policy of this state to protect its citizens from such an onerous choice.” 192 Mich App 253.
The Court also noted that, as Norris Schmid argued, Dudewicz might have had to choose the wpa as his exclusive remedy over his public policy claim. Because, however, the trial court "expressly stated that it had not granted the motion for summary disposition on the basis that the [wpa] provides the exclusive remedy,” the Court ruled that "consideration of the applicability of the public policy exception to the facts of this case [was] still proper . . . .” 192 Mich App 253.
Next the Court considered Dudewicz’ claim that his discharge was in violation of the wpa because he was fired for filing a criminal complaint, alleging that he had been assaulted and battered by a fellow employee. In ruling that the wpa prohibited such conduct, the Court expressly rejected an earlier Court of Appeals holding, Dickson v Oakland Univ, 171 Mich App 68; 429 NW2d 640 (1988), that required, as an element of the applicability of the wpa, that the person accused of breaking the law be the employer. The Court found that the language of the act itself and the accompanying legislative analysis contained no such limitation and, in fact, indicated that violations by fellow employees, as well as by employers, were to be considered within the scope of the wpa. The Court therefore concluded that the trial judge erred in granting both a directed verdict and summary disposition for Norris Schmid.
II
In deciding whether the trial court erred in directing a verdict for the defendant, we must first decide whether the wpa was intended to protect employees who are fired for reporting violations of the law by fellow employees. Norris Schmid contends that the wpa protects only those employees who are fired for reporting their employers’ violations of law. There is, however, no such limitation in either the express language of the wpa or the analysis of the House Bill that spawned the wpa.
Section 2 of the wpa provides in full:
An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because the employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, a violation or a suspected violation of a law or regulation or rule promulgated pursuant to law of this state, a political subdivision of this state, or the United States to a public body, unless the employee knows that the report is false, or because an employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action. [MCL 15.362; MSA 17.428(2).[ ]
A plain reading of this provision reveals that protection is not limited to employee reports of violations by employers. On its face, the provision only seems to apply to the discharge of an em ployee who "reports ... a violation or a suspected violation of a law . . . .” Id.
Moreover, the legislative analysis of the wpa supports the conclusion that its provisions protect employees who report violations of law by either their employers or fellow employees. The analysis recognizes the problem the wpa was designed to alleviate as the inability to combat corruption or criminally irresponsible behavior in the conduct of government or large businesses. House Legislative Analysis, HB 5088, 5089 (February 5, 1981). The analysis goes on to say that "[t]he people best placed to observe and report violations are the employees of government and business, but employees are naturally reluctant to inform on an employer or a colleague.” Id. (emphasis added). It appears that, at the time the bill was considered, the Legislature intended the protection to apply to employee reports of any and all violations of law by either employers or fellow employees.
In any event, we find that the activity at issue here, reporting a fellow employee’s violation of the state’s Criminal Code because of a dispute over the handling of company business, is not so different from traditional notions of whistleblowing. Typically, the activity involves the violation of laws more closely connected with the employment setting, such as Health Code and safety violations, Tyrna v Adamo, Inc, 159 Mich App 592; 407 NW2d 47 (1987), or illegal labor practices, Hopkins v Midland, 158 Mich App 361; 404 NW2d 744 (1987), but there is no limitation in the statute to these types of activities. Moreover, the illegal activity is typically engaged in by an "employee,” even if that employee also happens to own the company. See Tyrna, supra. On the basis of these observations, we are satisfied that the events and individuals involved in this case are consistent with those activities and individuals contemplated by the WPA.
In deciding that the wpa did not apply to the facts of this case, the trial judge relied upon a relatively recent Court of Appeals decision, Dickson v Oakland Univ, supra. The trial judge believed himself to be bound by the Dickson Court’s ruling that the wpa applied only to employees fired for reporting violations of law by their employers. We agree with the Court of Appeals, that there is no such limitation on the applicability of the wpa.
The plaintiff in Dickson worked as a police officer for the defendant’s department of public safety. 171 Mich App 69. Before his dismissal, the plaintiff alleged that he was repeatedly criticized for enforcing the law against university students. Id. After he was allegedly assaulted by one student, the plaintiff requested that the defendant seek an arrest warrant against that student. Id. The defendant refused, and the plaintiff was subsequently discharged. Id. at 69-70. The trial court and Court of Appeals rejected the plaintiff’s wpa claim, however, because the plaintiff only reported the wrongdoing of students to the defendant. Id. at 71. Nothing in the plaintiff’s complaint alleged that the defendant-employer violated any law or that the plaintiff was fired for reporting the defendant’s violation of law to a higher authority. Id.
In support for limiting the wpa to reports of violations of law by employers, the Dickson Court quoted, inter alia, the same portion of the legislative analysis as quoted above. See 171 Mich App 70-71. However, as stated above, nothing in either the wpa itself or its legislative analysis limits protection only to those employees who report violations of law by their employer. On the contrary, the explicit language of the analysis and the broad scope of the statute strongly suggest that the wpa was intended to protect employees who report violations by either employers or fellow employees. Indeed, such an interpretation is also supported by the rule of statutory construction that remedial statutes, such as the wpa, are to be liberally construed in favor of the persons intended to be benefited. See Bierbusse v Farmers Ins Group, 84 Mich App 34, 37; 269 NW2d 297 (1978); Holmes v Haughton Elevator Co, 75 Mich App 198, 200; 255 NW2d 6 (1977), aff’d 404 Mich 36; 272 NW2d 550 (1978). Simply stated, the Dickson Court erred in limiting the applicability of the wpa to employee reports of violations of law by employers.
Admittedly, a strictly literal interpretation of the statute without an analysis of legislative intent arguably could lead to an interpretation that would bar discharge of an employee for reporting a crime by anyone under any circumstances. See Tyrna, 159 Mich App 599 (the Court ruled that the wpa "provides a remedy to an employee terminated for reporting to any public body a violation of any law or regulation of this state, a political subdivision, or the United States”) (emphasis added). However, this is not the case and these are not the facts to test the outer limits of this rather broad statute. In concluding that it was intended to bar a discharge of an employee for reporting a crime by a fellow employee under the circumstances of this case does not begin to test those limits. In saying that, we note that not only was this a crime alleged to have been committed by a fellow employee, but the alleged crime arose out of a work incident at the work site. It is, therefore, very much within the employer-employee setting.
Accordingly, we find that the trial court erred in granting a directed verdict on this issue.
III
The Court of Appeals reversed the trial court’s grant of summary disposition on the public policy claim because the trial court did not dismiss the claim on the basis of the fact that the wpa provided an exclusive remedy. While acknowledging the fact that the wpa was probably exclusive, the Court found that, because the trial court did not discuss this issue, it could not do so either. The Court erred in its rationale, however. Because the parties preserved the issue of public policy preemption and because the trial court failed to deal with the issue, the Court of Appeals was not precluded from dealing with the question whether the public policy claim was preempted by the wpa claim. The Court of Appeals, should have considered this issue and should have found that any public policy claim was preempted by the application of the wpa.
As a general rule, the remedies provided by statute for violation of a right having no common-law counterpart are exclusive, not cumulative. Pompey v General Motors Corp, 385 Mich 537, 552-553; 189 NW2d 243 (1971). At common law, there was no right to be free from being fired for reporting an employer’s violation of the law. Covell v Spengler, 141 Mich App 76, 83; 366 NW2d 76 (1985). The remedies provided by the wpa, therefore, are exclusive and not cumulative. Shuttleworth v Riverside Hosp, 191 Mich App 25, 27; 477 NW2d 453 (1991).
In Suchodolski v Michigan Consolidated Gas Co, supra, this Court recognized that there was an exception to the general rule that either party to an employment at will contract could terminate the agreement at any time for any or no reason. The exception is based on the principle that "some grounds for discharging an employee are so contrary to public policy as to be actionable.” Id. at 695. We also found that these restrictions on an employer’s ability to terminate an employment at will agreement are most often found in explicit legislation. Id. The wpa is such legislation. Id.
The existence of the specific prohibition against retaliatory discharge in the wpa is determinative of the viability of a public policy claim. In those cases in which Michigan courts have sustained a public policy claim, the statutes involved did not specifically proscribe retaliatory discharge. Where the statutes involved did proscribe such discharges, however, Michigan courts have consistently denied a public policy claim. Compare Trombetta v Detroit, T & I R Co, 81 Mich App 489; 265 NW2d 385 (1978) (the public policy claim was sustained where the defendant was discharged for refusing to manipulate and adjust pollution control reports), and Sventko v Kroger Co, 69 Mich App 644; 245 NW2d 151 (1976) (the claim was sustained where the defendant was discharged for filing a lawful workers’ compensation claim), with Covell v Spengler, supra (the public policy claim was denied where the defendant also was sued under the wpa and the statute proscribed discharge in retaliation for the employee’s complaints to the labor board concerning overtime pay), and Ohlsen v DST Industries, Inc, 111 Mich App 580; 314 NW2d 699 (1981) (the claim was denied where the employee also sued under miosha provisions that prohibited discharge in retaliation for the employee’s exercise of statutory rights). A public policy claim is sustainable, then, only where there also is not an applicable statutory prohibition against discharge in retaliation for the conduct at issue. As a result, because the wpa provides relief to Dudewicz for reporting his fellow employee’s illegal activity, his public policy claim is not sustainable.
IV. CONCLUSION
For the reasons set forth above, the trial court erred in granting Norris Schmid’s motion for a directed verdict. The wpa applies to an employee who reports a violation of a law arising out of a dispute over the handling of company business and occurring during business hours, regardless of whether the criminal actor is the employer or a fellow employee. Accordingly, the trial court’s judgment on the directed verdict was erroneous. The trial court properly granted summary disposition with regard to the public policy claim, however, because the wpa preempts that claim.
The judgment of the Court of Appeals is affirmed with respect to the wpa claim, and reversed with respect to the public policy claim. The case is remanded for trial of the wpa claim.
Cavanagh, C.J., and Levin, Riley, Griffin, and Mallett, JJ., concurred with Brickley, J.
MCL 15.361 et seq.; MSA 17.428(1) et seq.
A conversation between the trial court and counsel for Dudewicz indicated that the attorney believed the trial judge dismissed the public policy count on the ground that the wpa provided an exclusive remedy. The attorney asked the judge to reconsider his decision, but the judge refused to do so, at least until after hearing Dudewicz’ proofs. Once the proofs had been offered and the trial judge had granted a directed verdict for Norris Schmid, the judge informed the parties that he had dismissed the public policy claim, not because the wpa provided an exclusive remedy but, because the claim was not applicable to the case.
As stated, the report, or the attempted report, must be made to a "[p]ublic body.” This concept encompasses many entities, including "[a] law enforcement agency or any member or employee of a law enforcement agency.” MCL 15.361(d)(v); MSA 17.428(l)(d)(v). There is no. dispute that the Midland County Prosecutor is a "public body” for purposes of the wpa.
In any event, Dickson is clearly distinguishable on its facts. Forgetting for a moment who broke the law, the plaintiff in Dickson reported the violation only to his employer, not to a public body within the meaning of the wpa. On these facts, the panel correctly found that the wpa was inapplicable. While its ruling was correct, the panel made an unfortunate comment in dicta stating that the purpose of the wpa was to protect only those employees who reported violations of law by their employers. It is this comment that is erroneous.
As noted in n 2, the trial court dismissed the public policy claim as inapplicable and, therefore, did not discuss the exclusivity of the WPA.
Also noted were the Civil Rights Act, MCL 37.2701; MSA 3.548(701), the Handieappers’ Civil Rights Act, MCL 37.1602; MSA 3.550(602), and the Occupational Safety and Health Act, MCL 408.1065; MSA 17.50(65). | [
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Riley, J.
This case requires us to consider an intricate mix of factual and constitutional issues surrounding waiver procedures for juveniles pursuant to the provisions of the Probate Code and related Michigan Court Rules. The primary question is whether the full panoply of protections provided by the Fifth and Sixth Amendments of the United States Constitution apply to the dispositional phase, as well as to the adjudicative phase, of a juvenile waiver hearing. We hold that the legislative purpose and the underpinnings of the Probate Code mandate the conclusion that a probate court’s discretion at the dispositional phase of a waiver hearing remains unfettered by certain evidentiary requirements recognized in criminal proceedings and already extended to the adjudicative phase of a waiver hearing. Accordingly, we reverse the decision of the Court of Appeals and remand the case for consideration of the remaining issues raised by defendant._
I
FACTS AND PROCEEDINGS
On January 6, 1988, defendant was arrested in a drug raid conducted by the City of Sterling Heights Police Department and charged with possession of more than 650 grams of a substance containing cocaine, delivery of more than 225 but less than 650 grams of a substance containing cocaine, conspiracy to induce a minor to commit a felony, and bribery of a public official. We turn first to the facts at issue beginning with the period immediately following defendant’s arrest.
On the way to the police station, Officer Blasky testified that he informed defendant and his brother of their Miranda rights. He also testified that he told defendant and his brother to refrain from talking to the officers because "it wasn’t our job to interview them,” and he warned them to be quiet when the brothers began talking to each other. According to Officer Blasky, defendant and his brother, who are of Arabic descent, seemed proficient in English, were not under the influence of any intoxicants, and appeared to understand their Miranda rights.
Shortly before arriving at the police station, the officers discovered that defendant was a juvenile. Therefore, defendant was taken to the juvenile bureau area of the station to await transfer to the youth home by a juvenile court officer.
Officer Blasky testified that while waiting for the juvenile court officer, defendant boasted about his involvement in other drug deals, stated that he had been selling drugs for a few years, and claimed to have been selling up to twenty kilograms of cocaine per month. Officer O’Connor entered the room and told Officer Blasky and defendant that they had discovered a safe in defendant’s bedroom. Officer Blasky asked defendant for the combination to the safe to make things easier because the police were already in the process of securing a search warrant and would gain access to the safe one way or another. Defendant began to cry, stated, "I’m dead,” but ultimately gave police the combination to the safe.
Shortly thereafter, Officer Brooks, the youth officer, arrived, and Officer Blasky left. Officer Brooks testified that he advised defendant of his Miranda rights, advised him not to discuss the evening’s events until a parent or attorney was present, and asked if he understood his rights. Defendant acknowledged that he did, but nevertheless continued to make incriminating statements and was again warned not to speak without a parent or attorney present.
While in Officer Brooks’ custody, defendant was permitted to make a phone call to his parents. Officer Brooks testified that following the phone call defendant began asking if Brooks was the person who would decide whether defendant would be detained overnight or released. Defendant then allegedly offered Officer Brooks a new pager, followed by offers of increasing amounts of money.
Officer Dodt, who was assigned to drive defendant to the youth home, testified that defendant’s conversation regarding the events of the evening included whether defendant would "flip himself over” and make a deal with the detectives to incriminate defendant’s supplier, how much defendant made each month together with any commissions for selling cocaine over a certain price, the fact that defendant ordinarily sold to blacks in the City of Detroit, and that defendant went through with the sale that led to his arrest against his better judgment because he had incurred a gambling debt of approximately $11,000 the day before and was in need of money. Officer Dodt also testified that defendant expressed a desire to make $200,000 or $300,000, then "get out and live.”
Pursuant to the prosecutor’s motion to waive jurisdiction over defendant for trial as an adult, the probate court conducted bifurcated hearings early in February and March of 1988. At the probable cause phase of the waiver hearing (phase i), the prosecution offered the testimony of Officer Putnam, his supervisor, Officer Cleland, and another witness,, all of whom had been involved in the drug raid. The prosecution also offered the testimony of Officer Brooks relating to the bribery charge. None of Officer Brooks’ testimony involved any admissions or confessions allegedly made by defendant. At the close of the phase i segment of the waiver hearing, the probate court concluded that there was probable cause to believe that defendant committed the crimes charged as required by MCL 712A.4(3); MSA 27.3178(598.4X3) and MCR 5.950(B)(1).
Several weeks later, the court conducted a hearing on the issue whether defendant should be treated as a juvenile or as an adult under the criteria set forth in MCL 712A.4(4); MSA 27.3178(598.4)(4) and MCR 5.950(B)(2) (phase n). At the phase ii hearing, the probate court permitted testimony of the probate court psychologist and Officers Blasky, Brooks, and Dodt concerning statements allegedly made by defendant after his arrest. The court’s basis for admissibility was "that we’re in phase ii here, to determine . . . [respondent’s] pattern of living, his character, and that sort of thing” rather than in the phase i probable cause stage. The court also listened to testimony of several witnesses who were alleged to have purchased narcotics from defendant in the past and from Lieutenant Tuttle of the Michigan State Police regarding the likely prior involvement in the drug world of someone entrusted to sell three kilograms of cocaine.
Defendant offered testimony of a character witness as well as the findings of his own psychologist. Following the phase ii hearing, jurisdiction over defendant was waived.
Defendant appealed the waiver decision in the Macomb Circuit Court. The circuit court concluded that there was ample evidence to support the waiver. However, the Court of Appeals, relying on In re Gault, 387 US 1; 87 S Ct 1428; 18 L Ed 2d 527 (1967), reversed, holding that the constitutional rights applicable in criminal proceedings extended to phase n, the dispositional phase of a waiver hearing. Moreover, the Court, drawing upon a trilogy of United States Supreme Court cases, concluded that a waiver of this nature is tantamount to an enhancement of defendant’s sentence, and thus required application to a phase ii waiver hearing of the same constitutional protections found in criminal trials.
On November 17, 1992, this Court granted leave to appeal.
II
HISTORICAL OVERVIEW
A
At common law, a child over the age of fourteen was presumed to have the mental capacity to form the mens rea required for specific intent crimes. As a result, juveniles from the age of fourteen could receive the same penalties as adult criminals. This criminal accountability of juveniles extended to the highest level of punishment possible, capital punishment.
Near the end of the nineteenth century, this country experienced a radical change in attitude regarding the treatment of children generally and in particular those caught up in the juvenile justice system. The exponents of what was called the Progressive Movement began focusing on rehabilitation rather than on retribution, pursuant to the doctrine of parens patriae.
The first true juvenile court was established by the Illinois Legislature in 1899. The enabling legislation provided that the act "be liberally construed to the end that its purpose may be carried out, to wit: That, the care, custody and discipline of a child shall approximate as nearly as may be that which should be given by its parents . . . .” Several states quickly followed Illinois’ lead by enacting similar legislation, and by 1928, all but two states had adopted a juvenile court system.
For nearly three quarters of a century, the laws and procedures surrounding juvenile courts remained virtually unchallenged and unchanged. However, in 1966, the United States Supreme Court in Kent v United States, 383 US 541, 556; 86 S Ct 1045; 16 L Ed 2d 84 (1966), concluded that waiver procedures for juveniles to criminal courts were "a 'critically important’ action determining vitally important statutory rights of the juvenile.” The Kent Court extended to juveniles several constitutional rights recognized in adult criminal trials. A year later in Gault, the Court stated that Fifth and Sixth Amendment rights recognized in adult criminal proceedings applied to juvenile proceedings. _
This body of case law led to a significant increase in judicial and legislative action regarding juvenile justice procedures. Particularly noteworthy is the fact that judicial extension of constitutional protections in juvenile proceedings led to legislative restriction of the sentencing discretion of the probate courts. In short, the "constitutional domestication” of the juvenile justice system prompted sentencing uniformity for more serious crimes via legislative enactment at the expense of sentencing flexibility.
B
Michigan’s history regarding juvenile justice procedures parallels the national trend. The first provision for the establishment of probate courts in Michigan is found in the Constitution of 1835. By 1850, the Michigan Constitution included a provision for the probate courts jurisdiction, to wit: "The jurisdiction, powers and duties of such courts shall be prescribed by law.” This constitutional empowerment has remained virtually unchanged. Thereafter, the powers and duties of the probate courts were defined by the Legislature.
The Michigan Legislature first authorized probate court jurisdiction over juveniles in 1905. What would be considered Michigan’s first waiver statute was passed in 1907. In 1915, the Legislature passed a law requiring that juveniles who were arrested be taken immediately before the probate court. In 1939, the Legislature made specific provision for waiver of jurisdiction over any child above the age of fifteen "charged with a felony which involves a maximum penalty of imprisonment for life or a term of more than 5 years”, upon full investigation into the circumstances following a motion for waiver filed by the prosecutor. By late 1988, legislation was passed creating a class of cases of a violent or drug-related nature for which waiver to an adult criminal court was automatic.
III
ANALYSIS
It is against the foregoing historical backdrop that we consider defendant’s argument that the waiver procedures provided in MCL 712A.4(3), (4); MSA 27.3178(598.4)(3), (4) and MCR 5.950(B) are unconstitutional. According to defendant, waiving probate jurisdiction over a minor is the harshest penalty that could be imposed on a juvenile, who could otherwise expect to be released at age nineteen, but for the waiver. _
Defendant also notes that juvenile waiver procedures are a "critical phase” of the judicial process, so that certain rights, such as the right to counsel and the right against self-incrimination, must be recognized. See Kent, supra at 553; Gault, supra at 30-31. Defendant then directs our attention to Estelle v Smith, 451 US 454, 462-463, 469-471; 101 S Ct 1866; 68 L Ed 2d 359 (1981), wherein the United States Supreme Court ruled that all Fifth and Sixth Amendment rights recognized in criminal trials applied to the sentencing phase of Texas’ bifurcated trial procedure in capital punishment cases.
The Court of Appeals treated Kent, Gault and Estelle as dispositive. However, we conclude that the Court’s analysis of these cases is flawed, and thus it erred in reversing the probate court’s decision to waive jurisdiction over defendant. A careful review of the proceedings in these cases is instructive.
In Kent, jurisdiction over a sixteen year old who was charged with housebreaking, robbery, and rape was waived by the District of Columbia Juvenile Court. The defendant was arrested and questionéd for approximately seven hours, during which time he apparently admitted involvement in the offense and volunteered information concerning similar offenses. After overnight detention in a juvenile home, the defendant was released to police for another full day of interrogation and then returned to the juvenile home where he remained for a week without arraignment or determination of probable cause._
No hearing was held on the defendant’s motions to retain jurisdiction over him, and the court’s waiver order was made without any findings or recitation of reasons for the waiver decision. After failing to secure a reversal through the District of Columbia’s appellate process, the United States Supreme Court granted certiorari. A five-justice majority held:
[The District of Columbia waiver statute] assumes procedural regularity sufficient in the particular circumstances to satisfy the basic requirements of due process and fairness, as well as compliance with the statutory requirement of a full investigation.”
We do not consider whether, on the merits, [the defendant] should have been transferred; but there is no place in our system of law for reaching a result of such tremendous consequences without ceremony — without hearing, without effective assistance of counsel, without a statement of reasons. [383 US 553-554. Emphasis added; citation omitted.][ ]
In Gault, a fifteen-year-old boy was adjudicated a delinquent for making lewd or indecent remarks to a female neighbor by telephone. The boy was arrested and taken to a detention home. His detention pending a hearing had been imposed entirely as a result of statements made by him to the juvenile court judge during proceedings at which the complainant was absent, no testimony was given, and no record was made. After a hearing that shared many of the same infirmities as the detention hearing, the defendant was committed to the State Industrial School until the age of majority. Id. at 4-8.
The United States Supreme Court noted that the Arizona Supreme Court had already recognized that due process of law was a constitutional prerequisite to a finding of delinquency that entailed commitment to an institution. Id. at 12. The majority stated:
We conclude that the Due Process Clause of the Fourteenth Amendment requires that in respect of proceedings to determine delinquency which may result in commitment to an institution in which the juvenile’s freedom is curtailed, the child and his parents must be notified of the child’s right to be represented by counsel retained by them, or if they are unable to afford counsel, that counsel will be appointed to represent the child. [Id. at 41.][ ]
Finally, in Estelle, the United States Supreme Court was asked to review the constitutionality of using psychiatric testimony at the sentencing phase of a bifurcated, capital murder trial where the defendant and his counsel were not warned beforehand that his statements could be used in the prosecution’s case in the death penalty phase. The prosecution asserted that the evidence was admissible because it was not offered to establish guilt, which had already been decided against the defendant. Finding for the defendant, the Supreme Court concluded:
We agree with the Court of Appeals that respondent’s Fifth Amendment rights were violated by the admission of Dr. Grigson’s testimony at the penalty phase.
A criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding. [Estelle, supra at 468 (opinion of Burger, C.J.)[ ]
On the basis of the foregoing, it is clear that Kent, Gault, and Estelle are significantly distinguishable from the instant case and do not support the conclusion reached by the Court of Appeals in reversing, the probate court’s waiver decision. The Kent holding requires a degree of procedural regularity in juvenile waiver hearings that comports with "the basic requirements of due process and fairness” and "full investigation.” Kent, supra at 553. Accordingly, juvenile courts are required to establish hearing procedures, afford the right to counsel, and set forth their findings to avoid arbitrariness and the inability to review waiver dispositions for lack of clear findings. Gault assured a juvenile the right to counsel at waiver proceedings, including the right to proper notification of this right and the right to appointment of counsel in appropriate circumstances. Neither Kent nor Gault extended these constitutional protections to the dispositional phase of the waiver hearing that focuses on balancing the interests of both the juvenile and the public.
In Estelle, the United States Supreme Court extended Fifth and Sixth Amendment rights to psychiatric examinations used at the penalty phase of a capital murder case to enhance the sentence after guilt had been established. In contrast, a juvenile waiver decision is distinguishable because it is a hearing to determine probable cause (phase i) and to determine whether the best interests of the public and the juvenile would be served by waiving jurisdiction of the juvenile to an adult court (phase ii). Thus, the waiver hearing precedes any determination of guilt. Therefore, neither the Estelle holding nor the holdings of Kent and Gault mandate extending protections presently applicable to phase i hearings to phase n hearings.
Defendant argues that waiver is the harshest penalty that could be imposed on him. We disagree. In cases where a juvenile is waived to an adult criminal court, the juvenile is still afforded a right to jury trial and the presumption of innocence, and he is therefore not truly subjected to a harsher penalty because guilt is not yet established. Moreover, we are unaware of a constitutional right to be treated as a juvenile. Rather, and in derogation of the common law, juvenile justice procedures are governed by statutes and court rules that the probate courts are required to follow in the absence of constitutional infirmity. It is to these provisions that we now turn.
The statute and the court rule involved here both mandate a bifurcated waiver hearing to determine in separate proceedings whether probable cause to suspect a defendant exists, phase i, and whether waiver to an adult criminal court is appropriate, phase ii. The evidentiary requirements for admissibility differ at each phase of a juvenile waiver hearing. Although the statute is silent on the matter, the court rule provides that only "legally admissible evidence” may be used to establish probable cause in phase i of a waiver hearing while "[t]he Michigan Rules of Evidence do not apply to . . . [phase ii] of the waiver hearing.”
In the recent past, this Court has adopted a number of significant revisions to the court rules for the purpose of clarifying juvenile court procedures. To aid the bench and bar, we have declared that these rules "are to be construed to secure fairness, flexibility, and simplicity” so that the rights and proper interests of all parties concerned are protected. See MCR 5.902(A). The ap propriate standard for purposes of a phase n hearing is "whether the interests of the juvenile and the public would best be served by granting the motion [for waiver].” MCR 5.950(B)(2) (emphasis added). Former MCR 5.911(A)(2) required a "full investigation” into these interests and provided a five-factor test that has been carried over to MCR 5.950(B)(2)(c) without substantial change. (See also former JCR 1969, 11.) In short, we believe that the public policy underlying phase n hearings requires relaxed evidentiary standards so as to ensure a "full investigation.”
The special role played by the phase n hearing is further illustrated by MCL 769.1(3); MSA 28.1072(3) and MCR 6.931, which provides for a juvenile sentencing hearing in automatic waiver cases where juveniles have been convicted of a life offense following an adult criminal trial. This "waiver-back” procedure requires the equivalent of a phase ii hearing whose criteria correspond point for point to the criteria found in MCL 712A.4(4); MSA 27.3178(598.4)(4) and MCR 5.950(B)(2), see MCR 6.931(E)(3), in cases of automatic waiver. See MCR 6.901(B). Although the burden of proving that a juvenile should be sentenced as an adult is on the prosecutor, MCR 6.931(E)(2), "all relevant and material evidence may be received by the court and relied upon to the extent of its probative value, even though such evidence may not be admissible at trial” MCR 6.931(E)(1) (emphasis added). Thus, the waiver-back hearing mandates the use of the same flexible evidentiary standard found in phase ii hearings even though guilt has been established.
On the basis of the foregoing, we are persuaded that the Court of Appeals misconstrued the purpose of phase n of a waiver hearing and the underpinnings of the Juvenile Code. The requirements of a full investigation, protection of juveniles as well as the public, and the historic discretion afforded our probate courts in these matters convince us that the full panoply of constitutional rights was never intended to apply to the dispositional phase of a waiver hearing.
IV
CONCLUSION
We conclude that the constitutional protections extended to juvenile proceedings in cases such as Kent and Gault apply in full force to the adjudicative phase of a juvenile waiver hearing. We also find that the statutes and court rules concerning phase i hearings, when properly applied, afford the appropriate protection. Thus, because none of the alleged confessions or admissions were introduced at the phase i adjudicative phase of the waiver hearing, there was no constitutional violation. We conclude further that the full panoply of constitutional rights asserted by defendant does not apply to the dispositional phase of a waiver hearing. The United States Supreme Court has confined its extension of Fifth and Sixth Amendment rights to the adjudicative and not the dispositional phase of waiver proceedings. Use of defendant’s alleged statements to the police and the court psychologist at the phase ii dispositional hearing, therefore, did not violate any constitutional provisions.
The historical and legislative directives are clear. We therefore interpret the purpose behind the Probate Code and the court rules to favor individualized tailoring of a juvenile’s sentence with emphasis on both the child’s and society’s welfare. Such individualization would be seriously curtailed if the dispositional phase was restricted as defendant urges.
The decision of the Court of Appeals is reversed and the case is remanded for consideration of defendant’s other appellate issues.
Brickley, Boyle, Griffin, and Mallett, JJ., concurred with Riley, J.
1939 PA 288, ch XII, as amended, now found at MCL 712A.1 et seq.; MSA 27.3178(598.1) et seq.
MCR 5.901 et seq.
Also arrested were defendant’s brother and two others who had arranged with Officer Putnam to purchase twelve ounces of cocaine.
MCL 333.7403(2)(a)(i); MSA 14.15(7403)(2)(a)(i).
MCL 333.7401(2)(a)(ii); MSA 14.15(7401)(2)(a)(ii).
MCL 750.157c; MSA 28.354(3).
MCL 750.117; MSA 28.312.
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
On the date of his arrest, defendant was 16 Vz years old.
According to Officer Blasky, this was the policy of the Sterling Heights Police Department.
Defendant also allegedly stated that the police would have found approximately $300,000 in the safe had they searched it a day earlier.
The record indicates that defendant was unable to contact his parents because they had left his uncle’s house, but that they would be contacted as soon as they arrived home.
These alleged offers formed the basis for the bribery of a public official charge.
While transporting defendant to the youth home, Officer Dodt was requested via radio dispatch to ask defendant if there was any more money hidden in the home at which time defendant allegedly stated that there was $6,000 in a closet near the safe.
The procedures for waiver are set forth in MCL 712A.4; MSA 27.3178(598.4) and MCE 5.950. MCL 712A.4; MSA 27.3178(598.4) was amended effective October 1, 1988. 1988 PA 182. The provisions relevant to this proceeding remain substantially unchanged.
The record indicates that while defense counsel objected to the testimony of the police officers, defense counsel failed to object to testimony by the court psychologist that defendant admitted “to the offenses that he’s being charged with . . . [and] that his involvement was a little more extensive and there were other things going on, he wasn’t sure if he wanted to tell everything.”
See MCL 600.863(1); MSA 27A.863(1) (authorizing a right of appeal directly to the appropriate circuit court of any order, sentence, or judgment of a probate court) and MCL 600.867; MSA 27A.867 (permitting suspension of further proceedings of the probate court pending an appeal to a circuit court).
Unpublished opinion per curiam of the Court of Appeals, decided March 20, 1992 (Docket No. 119792).
Gault, supra; Kent v United States, 383 US 541; 86 S Ct 1045; 16 L Ed 2d 84 (1966); Estelle v Smith, 451 US 454; 101 S Ct 1866; 68 L Ed 2d 359 (1981).
441 Mich 883.
1 Wharton, Criminal Law (14th ed), § 96, pp 426-427. See also Feld, The juvenile court meets the principle of the offense: Legislative changes in juvenile waiver statutes, 78 J Crim L & Criminology 471, 521 (1987), and authorities cited therein; McCarthy, The role of the concept of responsibility in juvenile delinquency proceedings, 10 U Mich J L Ref 181, 184-185 (1977).
Feld, n 21 supra at 524; McCarthy, n 21 supra at 185. See also Gault, supra at 16-17.
See Feld, n 21 supra at 522, ns 177 and 178; Thompson v Oklahoma, 487 US 815, 832-833; 108 S Ct 2687; 101 L Ed 2d 702 (1988) (opinion of Stevens, J.).
See, generally, Feld, n 21 supra at 474-475; Feld, Criminalizing juvenile justice: Rules of procedure for the juvenile court, 69 Minn L R 141, 142-151 (1984), and authorities cited therein.
See Shears, Legal problems peculiar to children’s courts, 48 ABA J 719, 720 (1962) ("The basic right of a juvenile is not to liberty but to custody. He has the right to have someone take care of him, and if his parents do not afford him this custodial privilege, the law must do so”), quoted in Gault, supra at 17, n 21. See, generally, 47 Am Jur 2d, Juvenile Courts and Delinquent and Dependent Children, § 1 to § 8, pp 986-990.
McCarthy, n 21 supra at 189.
Id. at 189, quoting the Act of April 21, 1899, 111 Laws, Juvenile Courts, §21. MCL 712A.1(2); MSA 27.3178(598.1X2), which mirrors this philosophy, provides:
This chapter shall be liberally construed to the end that each child coming within the jurisdiction of the [probate] court shall receive the care, guidance, and control, preferably in his or her own home, as will be conducive to the child’s welfare and the best interest of the state. If a child is removed from the control of his or her parents, the child shall be placed in care as nearly as possible equivalent to the care which should have been given to the child by his or her parents.
Id. at 189, ns 41 and 42 and accompanying text.
Discussed infra, pp 215-216.
Discussed infra, pp 216-217.
In In re Winship, 397 US 358, 365-367; 90 S Ct 1068; 25 L Ed 2d 368 (1970), the Supreme Court extended the criminal standard of proof beyond a reasonable doubt to juvenile proceedings. However, the Supreme Court declined an invitation to require a jury trial in juvenile proceedings, requiring instead only "accurate factfinding,” which could be satisfied by a judge or jury. See McKeiver v Pennsylvania, 403 US 528, 543; 91 S Ct 1976; 29 L Ed 2d 647 (1971) (opinion of Blackmun, J.).
Careful review of both Kent and Gault reveals a reluctance on the part of the United States Supreme Court to establish a clear link between the Fifth and Sixth Amendments, or even the Miranda case, to juvenile proceedings. Rather, both cases focus on general concepts of due process extended to juveniles pursuant to the Fourteenth Amendment. See Kent, supra at 562 ("[w]e do not mean ... to indicate that the hearing to be held must conform with all of the requirements of a criminal trial or even of the usual administrative hearing; but we do hold that the hearing must measure up to the essentials of due process and fair treatment”) (emphasis added); Gault, supra at 13 ("neither the Fourteenth Amendment nor the Bill of Rights is for adults alone”). We interpret this reluctance as recognition of the prevailing philosophy that sought to treat juveniles differently than adults and would require by its very nature a type of discretion alien to the adult criminal justice system.
A popular legislative resolution of this dilemma, in which Michigan participates, is the bifurcated waiver hearing that recognizes adult criminal protections in the adjudicative phase while retaining historical discretion in the dispositional phase. See Feld, Legislative changes in juvenile waiver statutes, n 21 supra at 487-491.
See, e.g., Feld, Criminalizing juvenile justice, n 24 supra at 161-164.
Professor Feld states:
Beginning in 1970, and in direct response to the Supreme Court’s Kent decision, Congress excluded a catalogue of offenses from the jurisdiction of the juvenile courts of the District of Columbia. By 1975, four other states followed suit, and, by 1980, nine states excluded serious present offenses from juvenile court jurisdiction. The remaining states have acted similarly since 1980. Thus, there is a very strong trend to legislatively excise the most serious young offenders from juvenile court jurisdiction solely on the basis of their offense.
Regardless of the statutory details, the thrust of these laws is to remove sentencing discretion from judges with respect to the juvenile or adult disposition .... [Feld, Legislative changes in juvenile waiver statutes, n 21 supra at 517. Emphasis added.]
This term appears to have been coined by Justice Roberts of the Supreme Court of Pennsylvania in state proceedings held in Mc-Keiver. See In re Terry and In re McKeiver, 438 Pa 339, 346; 265 A2d 350 (1970).
Const 1835, art 6, § 3 provided, in toto, "A Court of probate shall be established in each of the organized counties.” Section 4 of art 6 provided that probate judges were to be elected to four-year terms by qualified voters within the several counties. Before the Constitution of 1835, matters that are ordinarily considered to be the subject of probate court jurisdiction were within the province of a three-member court empowered to pass judgments in accord with the extant common law. Northwest Ordinance of 1787, § 4.
Const 1850, art 6, § 13.
See Const 1963, art 6, § 15.
See Buback v Governor, 380 Mich 209, 226; 156 NW2d 549 (1968) (the responsibility of defining probate court jurisdiction is the responsibility of the Legislature); In re Chamberlain Estate, 298 Mich 278, 283-284; 299 NW 82 (1941) (probate courts derive no power from the common law but must find warrant for all of their doings in the statutes).
1905 PA 312, § 1. A "delinquent child” subject to probate court jurisdiction was defined as any boy under sixteen years of age and any girl under the age of seventeen who, inter alia, violated a state law.
1907 PA 325, § 2, provided, in pertinent part:
Proceedings under this act shall not be deemed to be criminal proceedings and this act shall not prevent the trial by criminal procedure in the proper courts of children under fourteen years of age charged with the commission of a felony. 1907 PA 325, § 1, also raised the age of delinquency for boys to seventeen years of age.
1915 PA 308, § 6. A similar provision is now found at MCL 764.27; MSA 28.886.
1939 PA 288, ch XII, § 26.
1988 PA 52, found at MCL 600.606; MSA 27A.606. Because the effective date of this act was October 1, 1988, it does not apply to defendant, although he was charged with one of the felonies listed in the automatic waiver statute, namely, MCL 333.7403(2)(a)(i); MSA 14.15(7403X2)(a)(i) (possession of more than 650 grams of a controlled substance).
In Michigan, a probate court retains jurisdiction over juveniles who are committed to a state institution until the age of nineteen. See 1939 PA 288, ch XII, § 19. This section was amended effective October 1, 1988, by 1988 PA 54, ch XIIA, § 18c. See MCL 712A.18c(4); MSA 27.3178(598.18c)(4). The amendment retained the automatic release provision for juveniles reaching the age of nineteen, but it also permitted extension of jurisdiction until age twenty-one for certain offenses. See 1988 PA 54, ch XIIA, § 18d(l), now found at MCL 712A.18d(l); MSA 27.3178(598.18d)(l).
The Estelle rationale was adopted in the adult criminal context by this Court in People v Wright, 431 Mich 282; 430 NW2d 133 (1988).
381 US 902 (1965).
The majority also recognized the "considerable latitude” that the juvenile courts had when determining whether to waive or retain jurisdiction over a juvenile and held:
This concern [lack of procedural safeguards and of solicitous care], however, does not induce us in this case to accept the invitation to rule that constitutional guaranties which would be applicable to adults charged with the serious offenses for which [the defendant] was tried must be applied in juvenile proceedings concerned with allegations of law violation. [383 US 556.]
Then twenty-one years of age in Arizona.
The Gault majority did, however, add the following caveat:
We do not in this opinion consider the impact of these constitutional provisions upon the totality of the relationship of the juvenile and the state. We do not even consider the entire process relating to juvenile "delinquents.” For example, we are not here concerned with the procedures or constitutional rights applicable to the pre-judicial stages of the juvenile process, nor do we direct our attention to the post-adjudicative or dispositional process. [Id. at 13.]
In addition, the Court held:
Because "[a] layman may not be aware of the precise scope, the nuances, and the boundaries of his Fifth Amendment privilege,” the assertion of that right "often depends upon legal advice from someone who is trained and skilled in the subject matter.” Maness v Meyers, 419 US 449, 466 [95 S Ct 584; 42 L Ed 2d 574] (1975).
Therefore, in addition to the Fifth Amendment considerations, the death penalty was improperly imposed on respondent because the psychiatric examination on which Dr. Grigson testified at the penalty phase proceeded in violation of respondent’s Sixth Amendment right to the assistance of counsel. [Estelle, supra at 471.]
See ns 47 and 49.
Our review of the case law reveals that only two jurisdictions have adopted the constitutional argument proffered by defendant. In RH v State, 777 P2d 204 (Alas App, 1989), an appellate court concluded that the compulsion to submit to a psychiatric examination without proper Fifth Amendment warnings violated the juvenile’s constitutional right against self-incrimination. Id. at 211. According to that court, the psychiatric testimony "involved in furthering the interests of the child’s formal adversary” and exposed the juvenile "to potential punishment far more severe than could otherwise have been visited upon him.” Id. at 210. In Commonwealth v Wayne W, 414 Mass 218; 606 NE2d 1323 (1993), the Supreme Judicial Court of Massachusetts concluded that the Fifth Amendment precludes compelled self-incrimination at a psychological examination ordered for the dispositional phase of a juvenile transfer proceeding unless the juvenile first offers psychiatric evidence. We believe that this position fails to adequately consider the history of juvenile proceedings and that the legislative intent behind the Michigan statutes does not permit a similar interpretation. For these reasons, we decline to follow the holdings in R H and Wayne W.
See Wayne W, n 52 supra (juveniles charged with murder do not have a constitutional right to be retained in the juvenile justice system).
Former MCL 712A.4; MSA 27.3178(598.4) provided:
(3) Before the court waives jurisdiction, it shall determine if there is probable cause to believe that the child committed an offense which if committed by an adult would be a felony.
(4) Upon a showing of probable cause, the court shall conduct a hearing to determine whether or not the interests of the child and the public would be served best by granting a waiver of jurisdiction to the criminal court. In making the determination, the couj-t shall consider the following criteria:
(a) The prior record and character of the child, his physical and mental maturity and his pattern of living.
(b) The seriousness of the offense.
(c) Whether the offense, even if less serious, is part of a repetitive pattern of offenses which would lead to a determination that the child may be beyond rehabilitation under existing juvenile programs and statutory procedures.
(d) The relative suitability of programs and facilities available to the juvenile and criminal courts for the child.
(e) Whether it is in the best interests of the public welfare and the protection, of the public security that the child stand trial as an adult offender.
MCR 5.950(B) provides:
(1) First Phase. The first-phase hearing is to determine whether there is probable cause that an offense has been committed which if committed by an adult would be a felony, and that there is probable cause that the juvenile who is 15 years of age or older committed the offense.
(b) At the hearing, the prosecuting attorney has the burden to present legally admissible evidence to establish each element of the offense and to establish probable cause that the juvenile committed the offense.
(2) Second Phase. If the court finds the requisite probable cause at the first-phase hearing . . . the second-phase hearing shall be held to determine whether the interests of the juvenile and the public would best be served by granting the motion.
(b) The prosecuting attorney has the burden of establishing by a preponderance of the evidence that the best interests of the juvenile and the public would be served by waiver. The Michigan Rules of Evidence do not apply to the second phase of the waiver hearing.
(c) The court, in determining whether to waive the juvenile to the court having general criminal jurisdiction, shall consider and make findings on the following criteria, giving each weight as appropriate to the circumstances:
(i) the juvenile’s prior record and character, physical and mental maturity, and pattern of living;
(ii) the seriousness of the offense;
(iii) whether the offense is part of a repetitive pattern of offenses which would lead to the determination either that the juvenile is not amenable to treatment, or that, owing to the nature of the delinquent behavior, the juvenile is likely to disrupt the rehabilitation of others in the treatment program, despite the juvenile’s potential for treatment;
(iv) whether, despite the juvenile’s potential for treatment, the nature of the juvenile’s delinquent behavior is likely to render the juvenile dangerous to the public when released at age 19 or 21;
(v) whether the juvenile is more likely to be rehabilitated by the services and facilities available in adult programs and procedures than in juvenile programs and procedures;
(vi> whether the best interest of the public welfare and the protection of the public security require that the juvenile stand trial as an adult offender. [Emphasis added.]
See 1985 MCR 5.911(A)(1) which, prior to amendment, provided:
Phase I: Showing of Probable Cause. The court shall first determine if a crime has been committed .... The determination must be based on legally admissible evidence. [Emphasis added.]
See also People v Williams, 111 Mich App 818; 314 NW2d 769 (1981) (noting that phase i of a waiver hearing, which is analogous to a preliminary examination, requires proof of probable cause only through use of legally admissible evidence while phase n, which is more like the sentencing phase of a criminal trial, is not similarly restricted).
See n 2. Prior to 1988, the Probate Code contained fourteen provisions regarding proceedings in the juvenile division of probate court. Today, there are forty-one provisions under the same subchapter.
The proper standard for appellate review is found in People v Dunbar, 423 Mich 380, 387; 377 NW2d 262 (1985), in which this Court held:
[A]n order waiving jurisdiction will be affirmed whenever the judge’s findings, based upon substantial evidence and upon thorough investigation, show either that the juvenile is not amenable to treatment, or, that despite his potential for treatment, "the nature of his difficulty is likely to render him dangerous to the public if released at age [nineteen], or to disrupt the rehabilitation of other children in the program prior to his release.” [Quoting People v Schumacher, 75 Mich App 505, 511-512; 256 NW2d 39 (1977). Citations omitted.]
See also People v Fowler, 193 Mich App 358, 363; 483 NW2d 626 (1992).
Moreover, we draw attention to the fact that the Michigan Legislature (effective October 1, 1988) went one step further by providing for automatic waiver from probate court, without any investigation, for juveniles over the age of fifteen, charged with any of nine serious felonies. See MCL 712A.2(a)(2); MSA 27.3178(598.2)(a)(2) and MCL 600.606; MSA 27A.606. The automatic waiver felonies are MCL 750.83; MSA 28.278 (assault with intent to commit murder); MCL 750.89; MSA 28.284 (armed assault with intent to rob); MCL 750.91; MSA 28.286 (attempted murder by nonassaultive means, e.g., poisoning); MCL 750.316; MSA 28.548 (first-degree murder); MCL 750.317; MSA 28.549 (second-degree murder); MCL 750.520b; MSA 28.788(2) (first-degree criminal sexual conduct); MCL 750.529; MSA 28.797 (armed robbery); MCL 333.7401(2)(a)(i); MSA 14.15(7401)(2)(a)(i) (manufacture or possession of 650 grams or more of a controlled substance with intent to deliver); MCL 333.7403(2)(a)(i); MSA 14.15(7403)(2)(a)(i) (possession of 650 grams or more of a controlled substance).
This subsection was added by 1988 PA 78.
Moreover, our review of the probate court record persuades us that defendant’s phase i hearing was properly sanitized to prevent the possibility of taint from the allegedly involuntary confessions. The prosecution offered the testimony of a witness arrested in the same transaction as defendant and two officers who were involved in the controlled purchase operation. Although the testimony of Officer Brooks was offered, it was limited to establishing probable cause for the bribery charge and did not implicate any admissions or confessions allegedly made by defendant at the police station.
The courts of this state have already recognized these rights applicable to the adjudicative phase of a waiver hearing. See, e.g., Williams, n 56 supra (only legally admissible evidence is admissible at the adjudicative phase of a waiver hearing); People v Good, 186 Mich App 180; 463 NW2d 213 (1990) (voluntariness of a confession must be established before it may be considered at the adjudicative phase of a waiver hearing); People v McGilmer, 95 Mich App 577; 291 NW2d 128 (1980) (Michigan courts apply the Kent right to counsel at juvenile proceedings prospectively).
MCL 712A.4(9); MSA 27.3178(598.4)0), added by 1988 PA 182, now provides that "[t]he probable cause finding [phase i] shall satisfy the requirements of and be considered the equivalent of the preliminary examination required by [MCL 766.4; MSA 28.922].” Accordingly, juveniles must be afforded the same constitutional protections as adults at the phase i stage of a waiver hearing, including the right to a pretrial hearing regarding the voluntariness of alleged admissions or confessions, see, e.g., People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965), and the right to counsel at any critical stage of the criminal proceedings. See People v Martin #2, 21 Mich App 667; 176 NW2d 470 (1970) (denial of effective cross-examination of witnesses at the preliminary examination, which is presumed when the defendant is without counsel, would make any testimony elicited at the preliminary examination inadmissible at a subsequent trial).
This jurisdiction has adopted the "totality of the circumstances” test to determine the voluntariness of confessions sought to be admitted at a phase i hearing. See Good, n 62 supra at 188-189. See also Fare v Michael C, 442 US 707; 99 S Ct 2560; 61 L Ed 2d 197 (1979); Gallegos v Colorado, 370 US 49; 82 S Ct 1209; 8 L Ed 2d 325 (1962); State v Benoit, 126 NH 6; 490 A2d 295 (1985). We do not reach the issue whether statements made to psychologists or psychiatrists at court-ordered examinations are to be treated like admissions or confessions made to police officers during custodial interrogation.
We disagree with the dissent’s conclusion that our interpretation of the statutes and court rules does not comport with the " 'rehabilitative ideal.’ ” Post, p 227.
First, the dissent never addresses the concept of "protection of the public” as required by MCR 5.950(B)(2), nor does it reconcile its position with the historic "full investigation” required by court rule and case law.
Second, a clear purpose of the disposition hearing is to determine whether a juvenile is amenable to treatment in the juvenile justice system. If not, it is determined that the adult system is better equipped to rehabilitate; the determination is not to inflict a more severe punishment. In cases in which an appellate court is faced with facts that indicate a desire to punish, it is proper to search for error in the application of the waiver factors and not for error based on constitutional grounds. Moreover, there is no certainty of punishment where the juvenile is afforded the right to a jury trial. The possibility of acquittal or even probation in a criminal trial (contrasted to an indefinite term in a juvenile home, in some cases) is not properly characterized as "punishment.”
Third, the authority cited in the dissent does not make the same clear distinction between the adjudicative and dispositional phases of a waiver hearing as we find in the relevant Michigan statutes and court rules. We would have to agree with the dissent’s position were it the case that Michigan probate practice did not recognize rights afforded adult criminal defendants at some phase of a juvenile waiver hearing. However, these protections are recognized at the adjudicative or “probable cause” phase.
Moreover, the cases are distinguishable on their facts. For example, in Christopher P v State, 112 NM 416; 816 P2d 485 (1991), the juvenile was ordered to discuss the delinquent acts themselves with a psychologist, and opposing counsel was permitted to watch the examination through a one-way mirror. Its applicability in this case is therefore tenuous where the inquiry was limited to the amenability question without a specific order to discuss the alleged crime. In fact, the holding in Christopher P made clear that the authority of the children’s court to order a psychological examination was not challenged. 816 P2d 486.
On remand, the Court of Appeals is to consider defendant’s other appellate issues, including whether the circuit court erred in affirming the decision of the probate court for failure of the prosecution to offer sufficient evidence that defendant was not amenable to treatment and rehabilitation, whether defendant was denied any constitutional right for failure of the circuit court to grant severance of his trial from that of his brother, and whether the circuit court erred for failing to instruct the jury about possession of more than 225 but less than 650 grams of a controlled substance. While we offer no opinion on the matter, defendant may also pursue the voluntariness of the alleged statements used at the trial in circuit court following the court’s denial of a motion to suppress. The issue was not addressed by the Court of Appeals for its decision on the constitutionality issue. | [
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Griffin, J.
The notice-of-alibi statute requires advance notice of a criminal defendant’s intention to present alibi testimony in a trial of felony charges, as well as a corresponding notice of the prosecution’s intent to offer evidence in rebuttal of that defense. MCL 768.20; MSA 28.1043. Over defendant’s objection, the trial court admitted the testimony of two rebuttal witnesses despite failure of the prosecution to provide notice before trial, and defendant then was convicted by a jury of breaking and entering with intent to commit larceny and of assault and battery. On appeal, the Court of Appeals found fault with the prosecution, but concluded that defendant "was not denied a fair trial by the late filing,” and affirmed the convictions.
We granted leave to appeal and now reverse the decision of the Court of Appeals.
I
At about 5:30 a.m. on October 15, 1988, fifty-two-year-old Samuel Harmon was drinking a cup of coffee in his Hazel Park home when he heard a noise, looked around, and saw a man with a stocking over his head standing at the end of his kitchen table. When the intruder started toward him, Harmon jumped up and jerked the stocking off the intruder’s head. During a struggle that ensued, Harmon was struck and almost lost consciousness. The intruder then tied Harmon’s hands and gagged him. Harmon heard the intruder enter the bedroom and dump jewelry from his wife’s jewelry box. While the intruder was in the bedroom, Harmon escaped to the house of a neighbor, who removed the restraints and called the police. Harmon described his assailant to police as a white male in his late twenties or early thirties, five feet eight inches tall, weighing between 160 and 180 pounds, wearing blue jeans, either a sweatshirt or T-shirt, and a black leather jacket.
A few days later, Harmon was asked to look at a book of photographs at the Hazel Park police department. He selected defendant’s photograph from the book, and stated that it looked identical to his assailant except for differences in the hair and mustache. Thereafter, on December 14, 1988, defendant was arrested and charged with breaking and entering with intent to commit larceny and with assault and battery. Six days later, at his preliminary examination, he was identified by Harmon as the intruder and was bound over as charged. His trial was scheduled for August 14, 1989.
Twenty days before the scheduled trial date, defendant filed a written notice of his intent to claim an alibi defense, naming one witness. However, the prosecution provided no response to this notice before trial.
When trial began as scheduled on August 14, 1989, defense counsel reserved his opening statement. The prosecution proceeded with its case in chief, and Harmon again identified defendant as the intruder. On the second day of trial, after the prosecution rested, defense counsel delivered an opening statement in which he informed the jury that an alibi defense would be presented supported by the testimony of two witnesses, Diane Deladurantaye and Sherry Detzler.
Thereafter, Ms. Deladurantaye testified that on Friday, October 14, she and defendant were at a bar in Utica from about 10:00 p.m. until 2:30 a.m. She drank soft drinks while defendant drank whiskey. He was "[pjretty drunk” by the time they left the bar and proceeded to her father’s house, also in Utica. There, defendant continued drinking while they talked until 4:45 a.m. According to her testimony, she left the house at 5:05 or 5:10 a.m., and defendant was "[o]ut cold.” She claimed that she returned between 7:30 and 7:45 a.m., awoke defendant, and drove him to work. She described defendant as "very hung over” and wearing a brown work uniform, the same clothing he had worn the night before.
Following the testimony of Ms. Deladurantaye on Tuesday, August 15, the court declared a recess of the trial. Because the next day, Wednesday, was the regular motion day, the court scheduled the trial to resume on Thursday, August 17. However, on the intervening Wednesday, the prosecutor filed a notice of intent to present witnesses to rebut defendant’s alibi.
When the trial resumed on Thursday, the defense presented the testimony of its second witness, Ms. Detzler. She testified that she worked with the defendant at a local manufacturing plant, and that she saw him at work shortly after noon on Saturday, October 15. She described his appearance on that day as "severely hung over.”
Following the testimony of Ms. Detzler, the defense rested, and the trial prosecutor then moved "to add a couple witnesses to the information to rebut . . . the defense of alibi.” In support of this motion, he explained that when defendant’s notice of alibi was received in the prosecutor’s office, it had been handed to one of his colleagues to whom the case was originally assigned. Apparently, that person had not placed the notice in the case file because it was not in the file when the case was reassigned. The trial prosecutor maintained that he did not learn of the defendant’s intention to present an alibi defense until August 14, the day the trial opened. He further indicated that, on the same day, he first learned from a police detective that there were witnesses who could rebut the alibi. He then interviewed one of these witnesses, Renee Jones, on the morning of the second day of trial.
Arguing that it would not be unfair for the trial court to grant his motion and allow him to call the rebuttal witnesses, the trial prosecutor pointed out that the defense counsel was also able to interview witness Jones on the second day of trial, and that both he and defense counsel were in possession of a statement made by a second rebuttal witness, Gregory Moore, Jones’ brother. He also contended that the trial court was required to grant his motion by People v Wilkerson, 63 Mich App 470; 234 NW2d 571 (1975).
Defense counsel vigorously opposed the motion, arguing that he had filed notice of his alibi defense in accordance with the statute, and that there was no satisfactory excuse for the prosecution’s failure to contact the alibi witness and to file a timely notice if he wished to offer rebuttal testimony. Characterizing the late motion as "sandbagging,” he complained that the prosecution had waited until after the first alibi witness had testified before affording defense counsel any opportunity to interview rebuttal witnesses. Defense counsel argued that any confusion that may have existed in the prosecutor’s office could not be charged against the defense, and that the trial prosecutor’s conduct had prevented him from making an informed choice of trial strategy on defendant’s behalf.
The trial court granted the prosecution’s motion, finding that it would be "totally unjust” to exclude the testimony of the rebuttal witnesses.
The prosecution then presented the testimony of two rebuttal witnesses who lived in Hazel Park near the home of complainant Harmon. The first witness, Jones, testified that the defendant was at her house between 2:30 and 3:00 a.m. on the morning of the break-in. She stated that defendant was accompanied by her ex-husband, who was intoxicated, and that she observed defendant driving a truck with the words "Interlocking Block” painted on the door. She described the defendant as wearing a black jacket, blue jeans, and tennis shoes.
The second rebuttal witness, Moore, testified that he saw defendant walking down the street at 5:30 or 6:00 a.m. that morning. He said defendant was wearing dark clothing, but could not recall whether he was wearing a jacket.
The jury returned a verdict convicting defendant as charged. Thereafter, defendant pleaded guilty to a charge of being an habitual offender, third offense, and was sentenced to ten to thirty years in prison.
In the Court of Appeals, defendant argued that the notice-of-alibi statute requires the prosecution to demonstrate the exercise of due diligence in obtaining the names of rebuttal witnesses and filing the required notice of rebuttal. The appeals panel disagreed, concluding that "the trial court has discretion to allow the untimely filing of a notice of rebuttal, even if the filing occurs during the course of trial.”
We then granted leave to appeal, limited to: "whether the trial court erred in allowing the prosecutor to file the notice of rebuttal witnesses and to thereafter call those witnesses to rebut the alibi defense.” 440 Mich 889 (1992).
II
A majority of states, as well as the federal courts, require advance notice of an alibi defense. 2 LaFave & Israel, Criminal Procedure, § 19.4, pp 511-512; see also note, Constitutional implications of notice-of-alibi provisions, 21 Wayne LR 1415 (1975). Such provisions share a common purpose: to prevent the surprise introduction of an alibi defense. As this Court observed in People v Merritt, 396 Mich 67, 77; 238 NW2d 31 (1976):
[T]he statute "was not intended as a disparagement of the defense,” Connery v State, 499 P2d 462, 465 (Okla Crim App 1972), but "statutes providing for the defense of alibi are intended to erect safeguards against its wrongful use and give the prosecution time and information to investigate the merits of such defense.” State v Martin, 2 Ariz App 510, 514-515; 410 P2d 132, 136-137 (1966). The procedure is "for the benefit and protection of the public.”
When first introduced, such notice of alibi provisions aided only the prosecution and provided no comparable discovery rights to defendants, viz., the prosecution was not required to disclose its intention to rebut an alibi or to name rebuttal witnesses. See, e.g., 1970 CL 768.20. However, in Wardius v Oregon, 412 US 470, 472; 93 S Ct 2208; 37 L Ed 2d 82 (1973), the United States Supreme Court ruled that "the Due Process Clause of the Fourteenth Amendment forbids the enforcement of alibi rules unless reciprocal discovery rights are given to criminal defendants.”
In response to Wardius, our notice-of-alibi statute was amended to require reciprocal discovery. 1974 PA 63. The current statute requires notice to the prosecution, "not less than 10 days before the trial of the case, or at such other time as the court directs,” whenever a defendant in a felony case intends to offer testimony in support of an alibi. MCL 768.20(1); MSA 28.1043(1). However, the statute now imposes upon the prosecution a duty to respond with a notice of rebuttal, "not later than 5 days before the trial of the case, or at such other time as the court may direct,” when it intends to present witnesses to controvert this alibi defense. MCL 768.20(2); MSA 28.1043(2). The sanction for failure to file the required notice is set forth in MCL 768.21; MSA 28.1044. Before the enactment of 1974 PA 63, this section provided that where a defendant failed to comply, "the court may in its discretion exclude evidence offered by such defendant . . . .” 1970 CL 768.21. (Emphasis added.) However, the amended section provides that if either party fails to file notice as required, "the court shall exclude” the testimony sought to be admitted. MCL 768.21; MSA 28.1044. (Emphasis added.)
In light of this language, the sanction of exclusion has been treated as mandatory in some of the appellate decisions. See People v Alexander, 82 Mich App 621, 627-628; 267 NW2d 466 (1978), and People v Wilson, 90 Mich App 317, 320-321; 282 NW2d 2 (1979). However, other panels of the Court of Appeals have followed a view expressed by Judge Allen dissenting in Wilson, supra. Pointing to the words that allow filing of a notice of rebuttal "at such other time as the court may direct,” MCL 768.20(2); MSA 28.1043(2), Judge Allen opined that the trial court continues under the amended version of the statute to retain discretion and, under some circumstances, may permit rebuttal testimony even where notice is not filed until after commencement of the trial. 90 Mich App 322. (Allen, J., dissenting.) See also People v Coulter, 94 Mich App 531, 535; 288 NW2d 488 (1980); People v Stinson, 113 Mich App 719, 724-725; 318 NW2d 513 (1982) (rebuttal of insanity defense).
In People v Bell, 169 Mich App 306; 425 NW2d 537 (1988), where the defendant's alibi witnesses were uncooperative, the prosecution, before hearing their testimony, was unable to discover the existence of a rebuttal witness. While recognizing the mandatory language in the sanction provision, the Bell panel ruled that the trial judge had discretion under such circumstances to allow the filing of a rebuttal notice even after commencement of trial: "Any other interpretation of the statute would render the phrase 'at such other time as the court directs’ meaningless.” 169 Mich App 309.
We agree with those panels that have concluded that the language "or at such other time as the court may direct” preserves the trial court’s discretion to fix the timeliness of notice in view of the circumstances. Otherwise, the purpose of the notice-of-alibi statute may be defeated, and the trial process relegated to the status of a "poker game in which players enjoy an absolute right always to conceal their cards until played.” Williams v Florida, 399 US 78, 82; 90 S Ct 1893; 26 L Ed 2d 446 (1970).
Our conclusion that the Legislature intended to leave such discretion in the hands of the trial court is indicated, we believe, by an examination of the balance that was struck in fashioning the current statute. Although the accused must provide information about the place at which he claims to have been when the alleged offense occurred, in other respects the statute requires only notice of the names of prospective witnesses— without addresses and without information regarding the nature of the testimony to be given. Instead of furnishing adequate tools needed for effective reciprocal discovery, this procedure provides little more than a "general alert” and must contemplate that such limited disclosure would not eliminate the element of surprise in many cases.
Although the statute leaves the trial court with considerable discretion to allow or disallow the testimony of rebuttal witnesses when a timely notice has not been filed, of course, such a decision may be overturned upon review if the court’s discretion is abused.
We turn now to consider the standards that should govern a trial court’s exercise of that discretion.
III
In this case, defendant urges this Court to adopt a "due diligence” standard to control the trial court’s exercise of its discretion. Defendant points by analogy to subsection 3 of the notice of alibi statute, which specifically allows addition of a witness "[u]pon motion with notice to the other party and upon a showing by the moving party that the name of an additional witness was not available . . . and could not have been available by the exercise of due diligence . . . .” MCL 768.20(3); MSA 28.1043(3).
In support of this argument, defendant relies on two Court of Appeals’ decisions in which the panels applied a "due diligence” standard to the late filing of a rebuttal notice. In People v Diaz, 98 Mich App 675; 296 NW2d 337 (1980), the trial court allowed the testimony of a rebuttal witness even though notice was not provided until the ninth day of trial. The Court of Appeals affirmed this decision, noting that two of the alibi witnesses could not be located before trial and the prosecution was unaware of the possible rebuttal witness until the defendant testified. Thus, the Court explained, "the trial court properly admitted the testimony based on a showing that the name was not available when notice was required and could not have been available in the exercise of due diligence.” 98 Mich App 681. Similarly, in Bell, supra, where alibi witnesses were uncooperative and the prosecution, without hearing their testimony, was unable to discover the existence of a rebuttal witness, the panel refused to reverse the trial judge’s finding of due diligence. 169 Mich App 309.
While we do not quarrel with the result in the two cases cited, we nevertheless decline to adopt due diligence, alone, as the controlling standard in judging the timeliness of alibi or rebuttal notice. As we stated in Merritt, supra, whether the trial court has abused its discretion "varies with the facts of each case, and must inevitably involve a weighing of the competing interests involved.” 396 Mich 82; see also People v Williams, 386 Mich 565, 573; 194 NW2d 337 (1972).
We are conscious of the fact that the federal courts also have discretion to allow or disallow the testimony of an undisclosed alibi or rebuttal witness. Although we are in no way bound by their example, we do find it instructive. The federal notice-of-alibi provision, FR Crim P 12.1(d) provides an exclusion sanction where a party fails to comply with the rule. As is true with respect to similar provisions in a number of our sister states, the federal rule provides an exception: "[F]or good cause shown, the court may grant an exception to any of the requirements ... of this rule.” FR Crim P 12.1(e).
In United States v Myers, 550 F2d 1036, 1043 (CA 5, 1977), the United States Court of Appeals for the Fifth Circuit identified considerations to be weighed in reviewing a trial court’s exercise of its discretion under Rule 12.1:
In determining how to exercise its discretionary power to exclude the testimony of undisclosed witnesses ... a district court should consider (1) the amount of prejudice that resulted from the failure to disclose, (2) the reason for nondisclosure, (3) the extent to which the harm caused by nondisclosure was mitigated by subsequent events, (4) the weight of the properly admitted evidence supporting the defendant’s guilt, and (5) other relevant factors arising out of the circumstances of the case.
This test has been applied both to the prosecution and to the defense in cases involving failure to file any notice, as well as a failure to list all witnesses.
In Myers, the prosecution called four rebuttal witnesses not listed in its response to defendant’s notice of alibi. The trial court allowed the unlisted witnesses to testify and later denied the defendant’s motions to strike their testimony and documentary evidence. On appeal, the court reversed these decisions, finding that "the prejudice to the defense was substantial and remained unabated,” id., because defense counsel was unable to reconsider his strategy in light of the undisclosed rebuttal witnesses. Moreover, the court found that the reason for nondisclosure was "feeble” and that the other evidence against the defendant was "weak.” Id. Thus, the conviction was reversed.
Mindful of the linguistic differences between our statute and the federal rule, we nevertheless find that the Myers test provides an appropriate standard by which to judge the exercise of discretion vested in the trial court by our notice-of-alibi statute. This test takes into account not only the diligence of the prosecution, but also the conduct of the defendant and the degree of harm done to the defense. It tends to protect the prosecution in cases where the defendant is at fault or where the defendant suffers little or no prejudice. At the same time, it tends to protect the defendant when the conduct of the prosecution unfairly limits the defendant’s choice of trial strategy, as in Myers.
IV
Examining the record in this case in light of the factors listed in Myers, we find that the trial court abused its discretion in allowing the testimony of the rebuttal witnesses.
First, the defendant’s case was severely prejudiced by the prosecution’s untimely disclosure of rebuttal witnesses. Because defense counsel was unaware not only of the names of the rebuttal witnesses, but of the prosecution’s intention to present such witnesses, he was unable to make an informed decision whether to proceed with the alibi defense. Such an informed decision is "crucial,” Williams v Florida, 399 US 85, and the existence or identity of rebuttal witnesses is a critical factor in that decision, whether the defendant’s alibi is true or false. As did the court in Myers, 550 F2d 1043, we find that the notice of alibi statute "entitles a defendant to evaluate the strategy of advancing an alibi defense in light of the named rebuttal witnesses.”
Second, the only explanation given for the failure to file a notice of rebuttal was simple confusion in the prosecutor’s office. As the trial prosecutor explained, the alibi notice was not in his file before trial commenced because it had been served on one of his colleagues who neglected to place it in the file before the case was reassigned. Unlike Diaz and Bell, in which the prosecution did not learn of the rebuttal witnesses until after hearing the alibi testimony, the trial prosecutor in this case should have known of the alibi defense before trial.
Third, the severe harm caused by the nondisclosure could not be mitigated by subsequent events. The crux of defendant’s challenge is that had he known of the prosecution’s intention to rebut his alibi, he might have decided not to present that defense. However, once the alibi defense was announced to the jury, defendant’s choices were limited. This prejudice could have been mitigated, and defense counsel would have been able to reevaluate the alibi defense, had the prosecution notified him of the possibility of rebuttal before his opening statement. However, merely allowing him the opportunity to interview the witnesses before their testimony did not mitigate this prejudice.
Fourth, unlike the court in Myers, we recognize that in this case there is strong evidence supporting the jury’s finding of defendant’s guilt. Harmon testified that he pulled his assailant’s mask off and observed his face from a short distance. He was able to describe his assailant’s clothing and physical appearance and selected defendant from a book of photographs given to him by police. He stated that he had seen the defendant around the neighborhood and positively identified him both at the preliminary examination and at trial.
Nevertheless, although the evidence may be substantial, it is not overwhelming. There is no indication that any of the stolen property was recovered from defendant, and no fingerprints were obtained from Harmon’s house. Furthermore, shortly before the attack on Harmon, a similar incident occurred at a nearby house. Defendant participated in a line-up in that case, but was not identified as the perpetrator by the victims.
The trial court held that exclusion of the rebuttal testimony would be "totally unjust.” We disagree. Our assessment of the Myers factors weighs in favor of excluding the testimony of the rebuttal witnesses: the prosecutor’s explanation for failure to comply with the notice requirement was feeble at best, the prejudice to defendant was serious and could not be cured by a continuance, and the evidence against defendant, although substantial, was not overwhelming. Furthermore, the trial court’s explanation of its decision was inadequate in view of the prejudice suffered by defendant in making an informed choice of defense strategy. Thus, we find that the trial court erred in allowing the rebuttal testimony._
Error in the admission’ of evidence is not grounds for reversal where the error is harmless. People v Robinson, 386 Mich 551, 563; 194 NW2d 709 (1972). The only direct evidence linking defendant to the charged crimes was the testimony of the victim. Thus, before notice that rebuttal witnesses would be allowed to testify, the case envisioned by defense counsel was essentially a credibility contest between the victim and the alibi witnesses. It cannot be said that the jury would have decided this credibility contest in the same way had it not heard the rebuttal testimony. Because we are unable to conclude that the conviction of defendant was not a miscarriage of justice, the error requires reversal. MCL 769.26; MSA 28.1096.
V
For the reasons stated above, we hold that the trial court erred in allowing the testimony of the two rebuttal witnesses.
Accordingly, we reverse the decisions of the trial court and the Court of Appeals and remand’this case for a new trial.
Cavanagh, C.J., and Levin, Brickley, Boyle, and Mallett, JJ., concurred with Griffin, J.
(1) If a defendant in a felony case proposes to offer in his defense testimony to establish an alibi at the time of the alleged offense, the defendant shall at the time of arraignment on the information or within 15 days after that arraignment but not less than 10 days before the trial of the case, or at such other time as the court directs, file and serve upon the prosecuting attorney a notice in writing of his intention to claim that defense. The notice shall contain, as particularly as is known to the defendant or the defendant’s attorney, the names of witnesses to be called in behalf of the defendant to establish that defense. The defendant’s notice shall include specific information as to the place at which the accused claims to have been at the time of the alleged offense.
(2) Within 10 days after the receipt of the defendant’s notice but not later than 5 days before the trial of the case, or at such other time as the court may direct, the prosecuting attorney shall file and serve upon the defendant a notice of rebuttal which shall contain, as particularly as is known to the prosecuting attorney, the names of the witnesses whom the prosecuting attorney proposes to cadi in rebuttal to controvert the defendant’s defense at the trial of the case.
(3) Both the defendant and the prosecuting attorney shall be under a continuing duty to disclose promptly the names of additional witnesses which come to the attention of either party subsequent to filing their respective notices as provided in this section. Upon motion with notice to the other party and upon a showing by the moving party that the name of am additional witness was not available when the notice required by subsections (1) or (2) was filed and could not have been available by the exercise of due diligence, the additional witness may be called by the moving party to testify as a witness for the purpose of establishing or rebutting an alibi defense.
MCL 750.110; MSA 28.305.
MCL 750.81; MSA 28.276.
Unpublished opinion per curiam of the Court of Appeals, decided November 20, 1991 (Docket No. 121820) at 1.
Interlocking block is a product sold by defendant’s employer.
Note 4 supra at 1.
Some jurisdictions, like Michigan, require such notice by statute. See, e.g., Ind Stat Ann 35-36-4-1 et seq.; Kan Stat Ann 22-3218; Nev Rev Stat 174.087; Okla Stat Ann, tit 22, § 585; SD Cod Laws 23A-9-1 et seq.; Utah Code Ann 77-14-2; Wis Stat Ann 971.23(8). Others reach the same goal through court rules. See, e.g., FR Crim P 12.1; DC R Crim P 12.1; Fla R Crim P 3.200; Iowa R Crim P 10(11); Minn R Crim P 9.02(l)(c); Ohio R Crim P 12.1. Under some provisions, the defendant is not required to give notice unless the prosecution requests it. See, e.g., FR Crim P 12.1; Colo Rev Stat Ann 16-7-102; La Code Crim P 24, art 727. Other provisions, like Michigan’s, place the burden on the defendant to notify the prosecution of the intent to employ the alibi defense. See, e.g., Idaho Code 19-519; Iowa R Crim P 10(11); Ohio R Crim P 12.1.
As one commentator has stated, "[ajlibi has been termed a 'hip pocket’ defense because of the ease with which it can be manufactured for introduction in the final hours of trial.” Epstein, Advance notice of alibi, 55 J Crim L & Criminology 29, 31 (1964). Other considerations favoring notice of alibi provisions include the deterrence of perjury and the savings of preparation and trial time. Id. at 31-32.
(1) If the defendant fails to file and serve the written notice prescribed in section 20 , the court shall exclude evidence offered by the defendant for the purpose of establishing an alibi .... If the notice given by the defendant does not state, as particularly as is known to the defendant or the defendant’s attorney, the name of a witness to be called in behalf of the defendant to establish a defense specified in section 20 ..., the court shall exclude the testimony of a witness which is offered by the defendant for the purpose of establishing that defense.
(2) If the prosecuting attorney fails to file and serve a notice of rebuttal upon the defendant as provided in section 20 ..., the court shall exclude evidence offered by the prosecution in rebuttal to the defendant’s evidence relevant to a defense specified in section 20 .... If the notice given by the prosecuting attorney does not state, as particularly as is known to the prosecuting attorney, the name of a witness to be called in rebuttal of the defense of alibi . . ., the court shall exclude the testimony of a witness which is offered by the prosecuting attorney for the purpose of rebutting that defense.
Although Merritt, supra, involved a case under the pre-1974 version of the statute, this Court noted in dictum that "[a] comparison of the old and new language indicates that, among other changes, the preclusion sanction is now mandatory.” 396 Mich 74, n 1.
The wording of the provision that imposes the sanction also supports this conclusion. That provision mandates exclusion of rebuttal evidence where the prosecutor "fails to file and serve a notice of rebuttal upon the defendant as provided in section 20 . . . .” MCL 768.21(2); MSA 28.1044(2). (Emphasis added.) Thus, the sanction provision necessarily takes into account the words in § 20 that grant discretion to the trial court ("or at such other time as the court may direct”).
MCL 768.20(1), (2); MSA 28.1043(1), (2).
United States v Portillo, 633 F2d 1313, 1324 (CA 9, 1980).
See, e.g., DC R Crim P 12.1(e); Fla R Crim P 3.200; Iowa R Crim P 10(11)(d); Ind Stat Ann 35-36-4-3.
See, e.g., United States v Causey, 834 F2d 1277, 1282, n 2 (CA 6, 1987); United States v Wood, 780 F2d 555, 560-561 (CA 6, 1986); United States v Carter, 756 F2d 310, 312 (CA 3, 1985); United States v Creamer, 721 F2d 342, 344 (CA 11, 1983); United States v Woodard, 671 F2d 1097, 1099 (CA 8, 1982); United States v Portillo, n 13 supra at 1324.
See, e.g., Clark v United States, 396 A2d 997, 1000 (DC App, 1979); United States v White, 583 F2d 899, 902 (CA 6, 1978).
See, e.g., United States v Carter, n 15 supra.
See, e.g., Causey and Wood, n 15 supra.
See, e.g., McClendon v United States, 587 F2d 384 (CA 8, 1978).
The importance of this strategic decision was recognized in two decisions of the Court of Appeals, although the panels erroneously described the preclusion sanction as "mandatory.” People v Alexander, 82 Mich App 627 ("While a defendant arguably should know how a witness whom he has listed on a notice of alibi will testify, a defendant should also be entitled to know whether the prosecution will rely on that witness in rebuttal”), and People v Wilson, supra at 321 ("Unless service is made before trial, a defendant cannot rely upon the notice, or lack thereof, in formulating trial strategy, and will be surprised”). See also Jackson v Fogg, 465 F Supp 177, 194 (SDNY, 1978) (explaining that "[i]f defense counsel had known that the rebuttal evidence would be offered, he could have dealt with it in his examination ... or he could have proceeded with two instead of three alibi witnesses”).
Deladurantaye also testified that there was a break-in at her house on the same night, and that she chased the intruder. She did not think that defendant was the intruder. The police apprehended a man matching the description she had given; that man was not defendant.
In deciding this credibility contest, the jury would have been required to weigh such evidence as Harmon’s identification of defendant, his testimony that he detected no odor of alcohol on his assailant, and his testimony that he thought he cut the defendant above the eye against such evidence as the testimony of defense witnesses that defendant had been drinking that night, was severely hung over that morning, and had no cut above his eye. | [
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Cavanagh, C.J.
We must decide today whether Michigan may punish acts allegedly committed in Florida by a Florida resident. We hold that Michigan may exercise extraterritorial jurisdiction over acts committed outside Michigan when the acts are intended to and do have a detrimental effect within the state. Here, the prosecutor claims that defendant was involved in a conspiracy and aided and abetted the commission of a crime in Michigan because he knew that the person to whom he sold cocaine was from Michigan. We disagree. The "knowledge” to which the prosecutor refers only is part of the evidence necessary to support a conviction for conspiracy or aiding and abetting. But knowledge alone is not enough to exercise extraterritorial jurisdiction. The prosecutor must present evidence that defendant intended to commit an act with the intent to have a detrimental effect within this state. That intent does not exist in this case. Accordingly, we reverse the Court of Appeals decision, and reinstate the district court’s dismissal of the charges.
I
Defendant, Michael Blume, is a Florida resident who is charged in Michigan with conspiracy to deliver or possession with intent to deliver more than 650 grams of cocaine and with aiding and abetting the manufacture or possession with intent to manufacture or deliver 650 grams of cocaine. The complaint alleges that in June, 1988, defendant sold cocaine to Randall Hoyt, a Michigan resident. The entire transaction took place in Florida.
After purchasing cocaine from defendant, Hoyt returned to Michigan. The Michigan State Police subsequently arrested Hoyt upon discovering a kilo of cocaine during a search of Hoyt’s apartment. Hoyt informed the police that he purchased the cocaine from defendant while in Florida. The prosecutor filed a complaint charging defendant. After being arraigned, defendant moved to quash the complaint and charges for lack of jurisdiction.
Officer Palenick was the only prosecution witness who testified at the hearing on the motion to quash for lack of jurisdiction. He explained that Hoyt told him that he traveled to Florida intending to purchase cocaine from a prearranged supplier. Unable to find his connection, Hoyt began looking for a new supplier. Hoyt met up with defendant. Apparently, the two had met each other previously through a gym at which both exercised. Hoyt and defendant made arrangements for the sale of cocaine. The entire transaction took place in Florida. Defendant did not have any contact with Hoyt while Hoyt was in Michigan before the sale. Officer Palenick testified that Hoyt said that defendant was aware that he was from Michigan.
After Officer Palenick and defendant testified at the hearing, the trial court dismissed the charges for lack of jurisdiction, finding that if any conspiracy occurred involving defendant, it occurred in Florida, and that defendant did not give aid or encouragement in Michigan. The circuit court reversed and ordered reinstatement of the charges upon finding that defendant’s acts were intended to and actually did produce detrimental effects in Michigan. The Court of Appeals affirmed. We granted leave to appeal, and, upon finding the exercise of extraterritorial jurisdiction in this case inappropriate, we reverse and order reinstatement of the trial court’s dismissal of the charges.
II
The general rule is that jurisdiction is proper only over "offenses as may be committed within its jurisdiction.” People v Devine, 185 Mich 50, 52-53; 151 NW 646 (1915). The authority to exercise jurisdiction over acts that occur outside the state’s physical borders developed as an exception to the rule against extraterritorial jurisdiction. That exception, however, is "limited to those acts that are intended to have, and that actually do have, a detrimental effect within the state.” Strassheim v Daily, 221 US 280, 285; 31 S Ct 558; 55 L Ed 735 (1911); Deur v Newaygo Sheriff, 420 Mich 440, 446-447; 362 NW2d 698 (1984).
This state has not defined the boundaries of the exception, but consistently has required a finding that the actor intended a detrimental effect to occur in this state. See, e.g., Deur, supra. The two key elements of that requirement are specific in tent to act and the intent that the harm occur in Michigan.
A proper analysis for this Court is to determine whether a conspiracy or aiding and abetting charge could be established by the evidence. Then, the Court must determine whether the conspiracy or crime that was aided and abetted was intended to occur in Michigan.
III
" 'A conspiracy is a partnership in criminal purposes.’ ” People v Atley, 392 Mich 298, 310; 220 NW2d 465 (1974) (quoting United States v Kissel, 218 US 601, 608; 31 S Ct 124; 54 L Ed 1168 (1910). "The gist of the offense of conspiracy lies in the unlawful agreement between two or more persons.” Atley at 311. Establishing a conspiracy requires evidence of specific intent to combine with others to accomplish an illegal objective. Atley at 310.
A
First, the intent to combine with others for an unlawful purpose must exist. Even if one party intends to combine to pursue an unlawful purpose, " '[t]o prove the crime of conspiracy, ... it must further be proven that that intent, including that knowledge, was possessed by more than one individual since there can be no conspiracy without a combination of two or more[ ] persons.’ ” People v Sutherlin, 116 Mich App 494, 500; 323 NW2d 456 (1982) (emphasis added).
In Atley, this Court held that there was insufficient evidence to support convicting the defendant of conspiracy to deliver an illegal substance because there was insufficient evidence that two or more parties agreed to sell the marijuana. Atley, along with two other defendants, was arrested for possession of 127 pounds of raw marijuana. He was charged with conspiracy to sell a narcotic drug. The prosecutor alleged that the defendants were going to harvest a marijuana field in Kansas and sell the marijuana in Michigan.
Regarding the evidence, the trial judge explained:
"I have some difficulty in bridging the gap between being hired [to] harvest a crop for delivery to a person who has expressed an intention that he was going to dry it and sell it, but without any agreement or any conversation as to participation in the actual sale, being sufficient to establish a conspiracy, which is an agreement or an understanding to make a sale.” [Id. at 313.]
This Court explained that the evidence was not "strong enough to sustain[ ] the conviction for conspiracy to sell marijuana.” Id.
The "prior combination and agreement” to harvest plus the testimony that defendant Atley intended to sell the marijuana do not directly establish in logic that the defendant and Eaton or any other person agreed to sell the marijuana. There was, in fact, no testimony . . . that Eaton agreed with defendant to sell the marijuana.
. . . From the established fact of acquisition of 127 pounds of marijuana, we can infer an intent to sell, but that is as far as inference may take us.
It is not "a fair inference,” [People v Beller, 294 Mich 464; 293 NW 720 (1940)]; People v Sobczak, 344 Mich 465; 73 NW2d 921 (1955), to infer the ultimate fact of conspiracy to sell from the fact of joint acquisition. The ultimate fact of intent to sell might be inferred, but not agreement to sell. What they actually intended to do insofar as payment was concerned, or insofar as where the marijuana was to be sold, whether in Michigan or elsewhere, is on this record a matter of conjecture. [Id. at 314.]
B
A defendant may become a member of an already existing conspiracy if he " 'cooperates know ingly to further the object of the conspiracy People v Huey, 345 Mich 120, 125; 75 NW2d 893 (1956) (emphasis added). The "knowledge” is a part of the crime only because "[w]ithout the knowledge, the intent cannot exist. United States v Falcone [311 US 205; 61 S Ct 204; 85 L Ed 128 (1940)].” Direct Sales Co v United States, 319 US 703, 711; 63 S Ct 1265; 87 L Ed 1674 (1943). Mere knowledge that someone proposes unlawful action alone is not enough to find involvement in a conspiracy, however. "Those having no knowledge of the conspiracy are not conspirators, United States v Hirsch, 100 US 33, 34 [25 L Ed 539 (1879)]; Weniger v United States, 47 F2d 692, 693 [CA 9, (1931)]; and one who without more furnishes supplies to an illicit distiller is not guilty of conspiracy even though his sale may have furthered the object of a conspiracy to which the distiller was a party but of which the supplier had no knowledge.” Falcone at 210-211.
The dissent cites Direct Sales to support the proposition that defendant can become involved in the conspiracy through informed or interested cooperation. But the dissent relies on one short sentence of that opinion in so holding. In Direct Sales, the United States Supreme Court also recognized that "[t]here may be circumstances in which the evidence of knowledge is clear, yet the further step of finding the required intent cannot be taken. Concededly, not every instance of sale of restricted goods, harmful as are opiates, in which the seller knows the buyer intends to use them unlawfully, will support a charge of conspiracy.” Id. at 712.
There are circumstances, however, such as in Direct Sales, that jurisdiction is appropriate. For example, if "the evidence discloses such a [distribution] system, working in prolonged cooperation with a physician’s unlawful purpose to supply him with his stock in trade for his illicit enterprise, there is no legal obstacle to finding that the supplier not only knows and acquiesces, but joins both mind and hand with him to make its accomplishment possible.” Id. at 713. It was under those circumstances that the United States Supreme Court said there was "informed and interested cooperation, stimulation, instigation [of the conspiracy] [a]nd there is also a 'stake in the venture’ . . . .” Id.
The United States Supreme Court also provided additional guidance about what amount of evidence is required by explaining Falcone:
That decision comes down merely to this, that one does not become a party to a conspiracy by aiding and abetting it, through sales of supplies or otherwise, unless he knows of the conspiracy; and the inference of such knowledge cannot be drawn merely from knowledge the buyer will use the goods illegally. [Id. at 709.]
Clearly, the prosecutor must present more evidence than the seller’s knowledge of the buyer’s proposed illegal purpose. For intent to exist, the defendant must know of the conspiracy, must know of the objective of the conspiracy, and must intend to participate cooperatively to further that objective. " '[T]o establish the intent, the evidence of knowledge must be clear, not equivocal . . . because charges of conspiracy are not to be made out by piling inference upon inference ....’” Atley at 310, quoting Direct Sales Co, supra. _
C
Because of the jurisdictional dispute, the prosecutor also must establish an intent to combine with others for the unlawful purpose of possessing cocaine or possessing with the intent to deliver the cocaine in Michigan. The "threshold question for assertion of the state’s jurisdiction is whether there is a showing sufficient to permit the court to conclude that the defendant intended to produce a detrimental effect in the forum state.” Post at 510.
In United States v Baker, 609 F2d 134 (CA 5, 1980), the court applied extraterritorial jurisdiction to a case involving conspiracy and illegal possession with intent to distribute narcotics. But the Baker court specifically held that if "it is clear that the intended distribution would occur within” the jurisdiction attempting to punish the defendant, then "jurisdiction may be maintained . . . .” Id. at 139.
This state will not surrender a person charged with a crime in another state unless the defendant clearly committed a crime with the intent that the crime occur in the demanding state. In Deur, supra at 449, this Court refused to surrender the defendant because he "did not commit any act in the State of Michigan intentionally resulting in the crime with which he is charged in the State of Maryland.” Thus, this Court should not approve the exercise of jurisdiction over a person who committed a crime outside Michigan when this state cannot prove that the person intended the crime to occur in this state.
IV
A thorough review of the testimony fails to disclose evidence sufficient to support exercising jurisdiction over this defendant. The prosecutor did not present evidence that defendant acted with the intent to have a detrimental effect in Michigan. Conversely, defense counsel introduced testimony that negated the existence of such intent. Similarly, the prosecutor did not present sufficient evidence that defendant knew of or cooperated knowingly to further the objectives of a conspiracy.
This case involves defendant’s sale of cocaine to Randy Hoyt. Hoyt traveled to Florida, intending to purchase cocaine from someone other than defendant, and defendant’s only prior contact with Hoyt was through a gym. Although defendant knew that Hoyt was from Michigan and that Hoyt eventually would return to Michigan, defendant only was involved in the initial delivery of cocaine to Hoyt. The transaction was completed in Flor ida as evidenced by the fact that delivery was complete and the financial aspects of the sale were concluded.
Although we may infer from the amount of the cocaine purchased that the buyer intended to possess or sell the cocaine somewhere, Atley, supra, the prosecution’s only witness, Officer Palenick, was unable to testify that Hoyt told defendant that the drugs would be distributed in Michigan. The officer did testify that Hoyt could have disposed of the cocaine in any manner and no agreement would have been breached. For that to be true, there must not have been an agreement regarding what Hoyt would do with the cocaine.
Also relevant is that the defendant did not have an interest in the cocaine beyond the initial sale. Defendant was not concerned with Hoyt’s use of the cocaine, and was not concerned with where Hoyt took the cocaine. More importantly, defendant did not intend that the cocaine go to Michigan, and did not intend that the drugs be sold in Michigan. Mere knowledge that Hoyt would return to Michigan sometime after completing the transaction with defendant is insufficient to support finding that defendant specifically intended to have a detrimental effect in this state.
Although an inference may be drawn, and in some cases knowledge and the surrounding circumstances may be sufficient to support a finding of intent, Direct Sales, supra, the dissent’s conclusion here violates the principle that inference is not to be created upon inference to support a conspiracy charge. Direct Sales Co, supra. The inference upon inference the dissent built includes an inference that defendant knew Hoyt was going to sell the drugs, an inference that Hoyt had a plan to sell the drugs, an inference that the plan involved another person so as to create a conspiracy, an inference that Hoyt’s plan or conspiracy was to sell the drugs in Michigan, and an inference that defendant, by the mere delivery of the cocaine to Hoyt and knowledge that Hoyt was from Michigan, knew of and cooperated knowingly with these inferred states of mind.
But the prosecutor failed to introduce evidence that defendant and Hoyt agreed, or even discussed, that the cocaine would be distributed in Michigan. The prosecutor also failed to introduce evidence that defendant was aware that Hoyt was involved in a conspiracy. There is no evidence that defendant knew Hoyt had a plan. It is questionable whether Hoyt knew he had a plan. There is no evidence that defendant knew Hoyt was going to sell the cocaine in Michigan.
After reviewing Direct Sales, Falcone, Deur, Atley, and Huey, we can only conclude that the facts do not provide a sufficient basis for concluding that defendant knew of or cooperated knowingly with a conspiracy to further its objectives.
V
The reasoning used in the conspiracy discussion applies to the substantive charge brought under the aiding and abetting theory. Consistent with Strassheim, supra, the defendant must have intended a detrimental effect to occur in Michigan and the effect actually must have occurred in Michigan before this Court can exercise jurisdiction over a defendant who aided and abetted outside Michigan.
One who aids and abets the commission of a substantive crime that occurs in Michigan is not automatically subject to trial in Michigan. Defendant must have intended to aid and abet a crime in Michigan. Mere knowledge is not enough to exercise jurisdiction.
VI
Because there is an insufficient factual basis to assert extraterritorial jurisdiction over this defendant, we reverse the Court of Appeals decision, and reinstate the district court’s dismissal of the charges.
Levin, Brickley, and Griffin, JJ., concurred with Cavanagh, C.J.
As discussed below, knowledge alone in this case similarly is not enough to convict defendant of conspiracy or aiding and abetting.
It must be noted that the Court of Appeals misstated the facts, which it found "sufficient to establish that defendant’s conduct in Florida was done with intent to produce and did produce detrimental effects within Michigan.” Unpublished opinion per curiam, decided January 15, 1992 (Docket No. 129818), p 1. The Court of Appeals stated “Hoyt testified that defendant knew that Hoyt was from Michigan and that Hoyt would be going back in several days. Hoyt explained to defendant that he was splitting up the cocaine with another individual in Michigan.” Id. First, Hoyt never testified. Furthermore, the officer also admitted that Hoyt may have dumped the cocaine in the ocean. Apparently, Hoyt was unsure himself of where the cocaine would be distributed.
MCL 750.157a; MSA 28.354(1).
MCL 333.7401(2)(a)(i); MSA 14.15(7401)(2)(a)(i).
See n 2.
See Sexton v Ryder Truck Rental, Inc, 413 Mich 406, 434; 320 NW2d 843 (1982). Perhaps more pragmatically, we recognize that "[mjodern criminals have little concern for political boundaries except as such boundaries are an aid in effecting a criminal purpose.” Berge, Criminal jurisdiction and the territorial principle, 30 Mich L R 238 (1931). Moreover, "[i]n a broader sense, the factors of interstate population centers, organized crime, mobility, and recidivism reveal that each state has an interest in crimes committed in other states.” Rotenberg, Extraterritorial legislative jurisdiction and the state criminal law, 38 Tex L R 763, 766-767 (1960). Thus, blind adherence to a purely territorial concept of jurisdiction inadequately addresses the state’s interest in protecting its citizens from the results of criminal activity.
The common law is the law of the state unless abrogated or changed by the constitution, the Legislature, or the Court. Const 1963, art 3, § 7; People v Stevenson, 416 Mich 383, 389; 331 NW2d 143 (1982). Unlike some states, Michigan has not enacted legislation generally defining the reach of its criminal statutes. But see MCL 762.6; MSA 28.849 (allowing prosecution in Michigan for mortal wound inflicted by one "within or without the limits of this state”); MCL 767.64; MSA 28.1004 (allowing prosecution in Michigan for property stolen in "any other state or country” and brought into Michigan).
The dissent asks us to ignore the intent requirement and create a less stringent standard by holding that the intent and the detrimental effect in this case are established because defendant knew that the cocaine purchaser was from Michigan and therefore, defendant intended a detrimental effect to occur in Michigan. We must reject the dissent’s conclusion that the knowledge was sufficient in this case to support finding intent.
The dissent attempts to base its conclusion on the case’s procedural disposition. The dissent argues that the issue here is whether a warrant shall issue, and the factors to consider are "whether the warrant was supported by sufficient probable cause to believe that '(1) an offense has been perpetrated; (2) defendant has committed it; and (3) the magistrate has jurisdiction to act in the case.’ ” Post at 497. But the dissent fails to realize that regardless of when jurisdiction is challenged, the Strassheim test must be met.
See also People v Asta, 337 Mich 590, 611; 60 NW2d 472 (1953); People v Smith, 296 Mich 176; 295 NW 605 (1941).
An agreement to commit a particular crime cannot be prosecuted as a conspiracy where the number of alleged conspirators do not exceed the minimum number of persons logically necessary to complete the substantive offense. People v Hamp, 110 Mich App 92; 312 NW2d 175 (1981). Conspiracy to deliver controlled substances is one of those crimes. In People v Puig, 85 Misc 2d 228, 232; 378 NYS2d 925 (1976), the court explained "an agreement solely between seller and buyer to transfer narcotics is not sufficient to establish conspiracy to commit the sale, as the consummated crime necessarily involved the co-operation of the two persons (People v Potwora, 44 AD2d 207 [354 NYS2d 492 (1974)]).”
See also People v Atley, supra at 310; People v Di Laura, 259 Mich 260; 243 NW 49 (1932).
The Court of Appeals held that a " jury could infer the existence of the agreement necessary to the charge from the prior preparation and planning engaged in by the parties and disregard the denials of defendant’s alleged coconspirators. While it may have been designed that only defendant would sell the marijuana, the prior combination and agreement to receive proceeds by those involved was reasonably established and certainly points to the existence of the charged conspiracy.’ ” Id. at 313.
This Court stated in Atley at 314-316, that a conspiracy may be established by circumstantial evidence or an inference, provided that the evidence and circumstances are " 'within safe bounds of relevancy and be such as to warrant a fair inference of the ultimate facts.’ (Emphasis added.)” Id. at 311, quoting People v Beller, supra at 469. Although the agreement does not have to be established by direct proof, creating an inference upon an inference clearly is impermissible.
Deur at 444-446, interpreting MCL 780.3a; MSA 28.1285(3-1/2), which provides:
The governor of this state may also surrender, on demand of the executive authority of any other state, any person in this state charged in such other state in the manner provided in section 3 with committing an act in this state, or in a third state, intentionally resulting in a crime in the state whose executive authority is making the demand, and the provisions of this act not otherwise inconsistent shall apply to such cases, even though the accused was not in that state at the time of the commission of the crime, and has not fled therefrom, and the requirements contained in subdivisions (d) and (e) of section 3 of this act shall not apply to such cases.
Not only must the Court find an intentional act, but the Court must find the intention to commit an act that would result in a crime in the demanding state.
We review the district court’s assumption of jurisdiction de novo .... [United States v Hill, 719 F2d 1402, 1404 (CA 9, 1983).]
Because this case did not reach trial, it only is alleged that defendant committed a crime. For purposes of determining if jurisdiction over defendant is appropriate, we must start with the premise that defendant made the initial sale of cocaine to Hoyt. There is testimony to support that assumption.
During the hearing on the motion to dismiss for lack of jurisdic tion, which took place on October 5, 1988, the only witnesses to testify were defendant and Officer Palenick. Regarding Mr. Hoyt’s intentions when he traveled to Florida, the officer testified:
[Prosecutor]: [D]id [Mr. Hoyt] tell you who he went down there [Florida] initially to meet?
[Officer]: Yes, he advised that he initially went down to make contact with a subject that he described as Little Mike.
[Prosecutor]: And what did he tell you with respect to his search for Little Mike and the intention of purchasing cocaine from him?
[Officer]: He was not able to locate Little Mike.
[Prosecutor]: What did he tell you he did instead?
[Officer]: He went to a restaurant, after which he was able to make contact with another subject.
[Prosecutor]: Did he tell you how he knew this other subject?
[Officer]: He said that he has worked out with him at the gym and he was aware that he could also make a contact with this individual, possibly to obtain a product that he needed.
The transcript continues:
[Defense Counsel]: Did you meet a man by the name of Mr. Hoyt in Florida?
.[Defendant]: Well, he came to Florida where I was at and he walked in and he met me there. That is, you know, how I met him.
I met him through a friend that I work with named Alfred Fricke at J. W. House of Rock.
[Defense Counsel]: Did you have occasion to call Hoyt at any time when Hoyt was located in Michigan?
[Defendant]: No.
[Defense Counsel]: Would you have any reason to know where he [Hoyt] would be calling from if he did call you?
[Defendant]: No, sir.
[Defense Counsel]: Did you have any idea in advance of running into him, that he was coming to Florida?
[Defendant]: No idea, I had not seen him for maybe a year before that.
[Defense Counsel]: Now, did you ever make a plan with Hoyt to come up here to Michigan?
[Defendant]: No.
[Prosecutor]: How did you come to see Mr. Hoyt in the Whale’s Rib Restaurant in June of this year?
[Defendant]: This year, I was just sitting there eating and he walked in and he was, you know, in a muscle shirt and we were both body builders and we started talking about body building. That is how we started speaking.
[Prosecutor]: You say that you first met him how many years ago?
[Defendant]: I am not exactly sure. Between two and three years ago I met him.
[Prosecutor]: How many times have you met him?
[Defendant]: Met him?
[Prosecutor]: Face-to-face.
[Defendant]: Three to four times.
[Prosecutor]: Other than this time in June, when was the last time before that, how long had it been?
[Defendant]: Probably about maybe two years prior, before that, that is all.
[Prosecutor]: You saw him mostly in ’85 and ’86 and not again until June of ’88?
[Defendant]: Yes.
[Prosecutor]: At that point you immediately recognized who he was?
[Defendant]: Yes.
[Prosecutor]: Did you agree to meet him at all as you were at Whale’s Rib Restaurant? Did you meet again the next day, or . . .
[Defendant]: No.
It must be noted that the only evidence supporting this fact is the hearsay testimony of Officer Palenick, who testified that Hoyt told him that he purchased the cocaine from defendant. The officer admits, however, that there is no evidence to "contradict that possibility that Mr. Hoyt left Florida with a quantity of cocaine and unloaded it somewhere along the way and picked up some more before he came back to Michigan?” That possibility is feasible in light of the officer’s testimony that Hoyt told defendant he would be in Florida several days before returning to Michigan.
This testimony was introduced on cross-examination of Officer Palenick.
[.Defense Counsel]: So there isn’t reason there to assume, is there, that he had more money coming?
[Officer]: You are referring to?
[Defense Counsel]: The Defendant. There is no reason to assume that Hoyt . . .
[Officer]: . . . Still owes him money for the drugs?
[Defense Counsel]: Yes.
[Officer]: No, I would think not.
The only testimony regarding distribution came on direct examination.
[Prosecutor]: Did Randy Hoyt indicate to you whether or not he had explained to the Defendant that the cocaine was to be delivered and distributed in Michigan?
[Officer]: I don’t recall if Mr. Hoyt advised that he was going to be distributing in Michigan. He did advise that he lived in Michigan and he had another person that he may be splitting it with when he got back to Michigan. [Emphasis added.]
Thus, the district judge erroneously stated that defendant and Hoyt "did discuss the sale of cocaine by Defendant to Randy Hoyt for the purpose of transporting it to Michigan to be delivered, sold . . . .” There is no testimony on the record supporting the judge’s statement. A judge’s finding may be overruled for want of any evidence. Because there is no evidence, we cannot affirm the district court’s finding of fact.
On cross-examination defense counsel asked:
[Defense Counsel]: . . . would it be contrary to any agree ment that Hoyt had with his purchaser if Hoyt had taken it and dumped it into the ocean, so to speak?
[Officer]: . . . yes, it would be possible.
[Defense Counsel]: My point is it would not have violated any agreements that he had with the person that he got it from?
[Officer]: Not that I know of.
Although the officer testified that the defendant "knew” Hoyt was from Michigan and that he "knew” that Hoyt would eventually return to Michigan, the officer was unable to testify or affirm that the defendant made an agreement regarding where the cocaine would be distributed. The officer made it clear that there was no agreement between defendant and Hoyt that the drugs would be taken to and sold in Michigan.
This does not mean that in every case involving the distribution of cocaine the court is unable to exercise jurisdiction. It only means that the prosecutor failed to present evidence sufficient to establish the requisite intent in this case. See Direct Sales, supra.
The prosecutor admitted in his closing argument that defendant, at most, only "knew” that the cocaine would be taken to Michigan. Nonetheless, the officer’s testimony is inconsistent regarding whether defendant knew Hoyt was taking the cocaine back to Michigan.
The dissent concludes that defendant knew that Hoyt later intended to possess and sell the cocaine in Michigan and, thus, that defendant provided informed and interested cooperation in Hoyt’s plan. Therefore, this state may prosecute Blume for conspiracy. The dissent confuses the evidence necessary to support exercising extraterritorial jurisdiction with the evidence necessary to support a conviction for conspiracy. Post at 506. The dissent relies on discussions between defendant and Hoyt regarding potential future sales of cocaine to establish the existence of facts contributing to the conspiracy. This reliance is inappropriate, however, because the officer admitted that "[tjhere was not any firm commitment according to Mr. Hoyt. He said that I have got somebody coming up here for some other business; if at that time we can work it out, I will have him drop off two kilos close by and maybe you can pick him up.”
Although the dissent correctly states that a formal agreement does not have to be shown, the only prosecution witness in this case clearly negated the existence of an agreement. Furthermore, the dissent consistently repeats that defendant knew that the cocaine would be distributed in Michigan, but there is no evidence that Hoyt intended to distribute the cocaine in Michigan, let alone that defendant knew of such intention.
It is true that the defendant does not have to know all the potential ramifications of the conspiracy, but the defendant does have to know that there is a conspiracy and the objective of that conspiracy before this Court can hold that he "cooperates knowingly to further the object of the conspiracy.” People v Huey, supra at 125. The dissent’s conclusion, therefore, is inconsistent with the principles of law on which it relies. The dissent states that intent is required, and although " 'knowledge is the foundation of intent,’ . . . mere knowledge of a conspiracy or its illegal objective, without more, is not enough to prove intent . . . .” Post at 507. The dissent should have stopped right there because the defendant did not have knowledge of the conspiracy or its illegal objective; therefore, it is irrelevant and unnecessary to "examine the defendant’s conduct to determine whether the defendant provided 'informed and interested cooperation, stimulation, [or] instigation.’ ” Post at 507-508.
We do not seek to limit the ability to exercise extraterritorial jurisdiction in illegal drug sale cases or in other types of cases. The problem here, which bars jurisdiction, is that the defendant did not act alone, but the involvement with Hoyt was not enough to permit transferring Hoyt’s intentions, whatever they were, to this defendant. Quite simply, neither conspiracy nor aiding and abetting can be made out here. This does not mean jurisdiction will never be obtained in such unique circumstances. For example, if someone stood blindfolded at the point connecting Arizona, New Mexico, Utah, and Colorado, and fired a machine gun while making a 360 degree turn, then whatever state in which the defendant may murder a person, that state should have jurisdiction over defendant. In that case, the defendant’s intent is sufficient under criminal laws addressing murder. But here, the defendant’s sale of cocaine is insufficient under criminal law regarding conspiracy or aiding and abetting. Defendant’s intent was to sell cocaine in Florida. He did not commit an act that forced or encouraged the cocaine to leave Florida, did not encourage Hoyt to take the cocaine outside Florida, and did not engage in a continuous distribution network with Hoyt. The facts here indicate that defendant was a fill-in seller for Hoyt’s regular scheme, about which defendant had no knowledge. Without additional facts, jurisdiction is inappropriate. The outcome certainly would be different if defendant was Hoyt’s regular supplier, was involved beyond this one transaction, or had discussed Hoyt’s conspiracy.
Interestingly, the record is devoid of evidence that the drugs actually were sold in Michigan, which directly confronts the prosecutor’s statement that "anybody that intentionally sends drugs to Michigan, have them sold here, is just as liable for having the drugs in our State as those that bring them here and those that sell them . . . .” | [
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Per Curiam.
The Court of Appeals reversed this defendant’s conviction on the ground that the trial judge improperly participated in the formulation of a sentence agreement. We believe that the trial judge did not err, and we therefore reverse the judgment of the Court of Appeals and reinstate the judgment of the circuit court.
I
This case arises from an incident that occurred on Father’s Day in 1989. The defendant wished to see his daughter, and was frustrated by the refusal of the child’s mother to permit a visit. To pressure the mother into allowing a visit, the defendant abducted her older daughter. He held the girl hostage for approximately two hours, at times holding a knife to her neck. The defendant surren dered after the police persuaded him to release the victim.
The defendant was charged with kidnapping and assault with a dangerous weapon. MCL 750.349, 750.82; MSA 28.581, 28.277.
A Walker hearing introduced the trial judge to the facts of this matter. Approximately a month later, the defendant pleaded guilty, as charged. The proceeding began with the following statement from the trial judge:
Okay. People versus James Louis Cobbs. This case is a case in which there are two counts, Count One, Kidnapping, and Count Two, Assault With a Dangerous Weapon.
My understanding is that essentially the case arises out of a domestic dispute when Mr. Cobbs, the father of the young girl, wanted some visitation with his children and had problems with the mother of the children, and utilized one of the children, a girl of ten, I think, something like that, ... as a hostage, with a knife, threatening with the knife when the police came and so on, and there’s even a video tape of it I understand that pretty much established the crime of felonious assault.
He has no previous record and we have a situation in the Prosecutor’s Office where they probably not only want him to plead guilty to everything he’s charged with, but would like to have him nailed to the cross, too: and so, because of the lack of any sensible plea bargaining down there, I’ve indicated today that if he wants to plead guilty as charged, with or without the prosecutor’s consent, I’ll let him have an Understanding that the maximum term would not be more than five years for the kidnapping and that’s all it could be, anyway, for the felonious assault, which means he could be sent to prison, if he is sent to prison, for as much as three years and four months to five years, because the minimum term can’t be more than two-thirds of the maximum term; and although there is really no plea bargain between the prosecutor and the defendant, the plea would be on that understanding.
The assistant prosecutor immediately objected that he had not been a party to any negotiations. He further objected that the proposed sentences were "a small price to pay” in light of the trauma suffered by the victim.
Accepting the defendant’s pleas, the circuit judge stated:
Okay. I have not agreed upon the possibility of a plea or the possible sentence with the prosecutor or the defendant or anyone acting in the interests of either, except to the extent that I put on the record today, my suggestion that apparently was agreed to, because it seemed to me — ah—to everybody’s advantage and considering the number of cases that have to be tried, a sensible way to resolve this case. It’s a shame and it’s — ah—sending him to life in prison isn’t gonna solve the problem.
Several weeks later, the circuit judge sentenced the defendant in accordance with his earlier remarks. He imposed a sentence of from 40 to 60 months in prison for kidnapping, and from 32 to 48 months in prison for assault with a dangerous weapon. He explained:
Okay. Now, it’s my turn. This is a case where probably it’s as terrorizing and serious of assault with a dangerous weapon, a knife, as I’ve ever had contact with. It involved an assault on a child, an innocent child, and although I’m confident that not only did you not hurt her with a knife, you would not have hurt her, but it was a terribly traumatic experience for her and she is apparently undergoing counseling to overcome the fear that that experience caused. It all arose out of a Father’s Day when you wanted to see a child of yours by the mother of this child and you were not allowed to. Things got out of hand. Technically, you held the child as a hostage against her will and from that standpoint you’re technically guilty of kidnapping, but there’s kidnapping and there’s kidnapping, and it’s really questionable whether you should have been charged with kidnapping, where in a family fight you take a child, although you commit a felonious assault certainly, to try to get an opportunity to see your child on Father’s Day. But, whether that’s — my view of that is right or wrong, I have to sentence you for kidnapping and. for felonious assault.
I did, however, engage in a plea agreement that the sentence for the kidnapping would not be more than a maximum of five years. In the circumstances, I think I should impose the most serious sentence I can impose consistent with the promise to you that the maximum would not be more than five years, because of the apparent psychological damage done to the child and the severe nature of the assault.[ ]
On appeal, the prosecutor argued that the trial judge’s actions violated the principles stated in People v Killebrew, 416 Mich 189; 330 NW2d 834 (1982). Agreeing, the Court of Appeals remanded the case for resentencing before a different judge. 188 Mich App 324; 469 NW2d 47 (1991).
We granted the defendant’s application for leave to appeal, and directed the parties to argue whether we should "reconsider the prohibition against judicial involvement in sentence bargaining as announced in People v Killebrew . . . " 439 Mich 1000 (1992).
II
Our decision in Killebrew reflected a balance between two conflicting considerations. First, judicial involvement must be limited in order "to minimize the potential coercive effect on the defendant, to retain the function of the judge as a neutral arbiter, and to preserve the public perception of the judge as an impartial dispenser of justice.” Id., 416 Mich 202.
The coercive potential of judicial involvement is obvious, and stems from the overwhelmingly advantageous bargaining position of the judge. Equally important is the fact that "[t]he public perception of the judge as a neutral arbiter must suffer when the judge descends from the bench to barter with the defendant and prosecutor over the terms of the deal he advocates.” Id. at 204.
The countervailing consideration is that, in the end, the judge must impose a sentence. The Legislature has provided substantial sentencing discretion to the judiciary, and the judge may not abdicate this function by allowing sentence agreements to control the sentencing process.
In light of these considerations, we concluded in Killebrew that the judge may not initiate or participate in discussions regarding the sentence that is to be imposed. Rather, "the judge’s role in plea negotiations, sentence bargaining included, is limited to consideration of the bargain between the defendant and the prosecutor. The judge may not become involved in the negotiation of the bargain.” Id., 416 Mich 194. We explained:
In balancing these competing considerations— that the degree of involvement must be kept minimal to avoid a coercive atmosphere and to retain public confidence in the judicial system and that judicial control of sentencing is required by statute —we now hold that a trial judge shall not initiate or participate in discussions aimed at reaching a plea agreement. He may not engage in the negotiation of the bargain itself. The trial judge’s role in the plea-bargaining procedure shall remain that of a detached and neutral judicial official. [Killebrew, 416 Mich 205.]
Killebrew permitted a judge to approve or reject a sentence agreement reached by the parties, or a prosecutorial sentence recommendation that was the product of negotiations between the parties. In requiring a judge who rejects a prosecutorial sentencing recommendation to state the sentence that would have been appropriate, this Court also acknowledged the practical impossibility of precluding all judicial involvement in the negotiation process.
III
A decade has passed since we decided Killebrew, and we are satisfied that the principles stated in our 1982 opinion remain sound. However, we are now persuaded that the rules governing judicial participation in sentence discussions should be modified.
In addition to the procedures approved in Killebrew, 416 Mich 206-212, we today recognize an additional manner in which a judge may participate in sentence discussions. At the request of a party, and not on the judge’s own initiative, a judge may state on the record the length of sentence that, on the basis of the information then available to the judge, appears to be appropriate for the charged offense.
To avoid the potential for coercion, a judge must not state or imply alternative sentencing possibilities on the basis of future procedural choices, such as an exercise of the defendant’s right to trial by jury or by the court.
The judge’s preliminary evaluation of the case does not bind the judge’s sentencing discretion, since additional facts may emerge during later proceedings, in the presentence report, through the allocution afforded to the prosecutor and the victim, or from other sources. However, a defendant who pleads guilty or nolo contendere in reliance upon a judge’s preliminary evaluation with regard to an appropriate sentence has an absolute right to withdraw the plea if the judge later determines that the sentence must exceed the preliminary evaluation.
While a judge remains subject to disqualification for the grounds stated in MCR 2.003, a decision not to sentence a defendant in conformance with a preliminary evaluation is not an automatic basis for recusal. A judge’s candid statement of how a case appears at an early stage of the proceedings does not prevent the judge from deciding the case in a fair and evenhanded manner later, when additional facts become known.__
IV
Approval of this additional form of judicial participation does not diminish our previously stated determination "to minimize the potential coercive effect on the defendant, to retain the function of the judge as a neutral arbiter, and to preserve the public perception of the judge as an impartial dispenser of justice.” Killebrew, 416 Mich 202. Coercion is avoided when a judge does not initiate a discussion of the sentence, and when a judge does not speculate on the sentencing consequences of future procedural contingencies. The judge’s neutral and impartial role is enhanced when a judge provides a clear statement of information that is helpful to the parties.
The question for the judge is simply, "Knowing what you know today, what do you think the sentence would be if the defendant pled guilty, as charged?” Justice is advanced and not hindered when fair questions are answered honestly.
The procedure approved in this opinion does not infringe on the rights of the prosecutor. Where a defendant pleads guilty or nolo contendere to the charged offense, there can be no infringement of the prosecutor’s charging authority. Neither does this procedure limit the prosecutor’s right to introduce additional facts at appropriate points during the remaining pendency of the case, such as during allocution at sentencing.
Similarly, the victim’s right to participate must be fully recognized. Crime victims have rights provided in the constitution of this state, and implemented by a number of statutory provisions. Among the rights of a crime victim are the right of allocution at sentencing and to provide an impact statement for inclusion in the presentence report. These events will each take place if the victim wishes, and the judge’s final sentencing decision must await receipt of all the necessary information.
v
In People v Rodriguez, 192 Mich App 1, 9; 480 NW2d 287 (1991), the Court of Appeals held that a defendant may waive the constitutional appeal of right from a plea-based conviction, in exchange for charging or sentencing concessions. It remains for the prosecutor and the defendant to determine in each case whether to enter into a bargain that includes such a waiver.
However, we caution that a defendant who pleads guilty or nolo contendere with knowledge of the sentence, and who later seeks appellate sentence relief under People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990), must expect to be denied relief on the ground that the plea demonstrates the defendant’s agreement that the sentence is proportionate to the offense and offender.
VI
We recognize that there remain wide differences of opinion in this area. As we indicated in Killebrew, Standard 14-3.3 of the American Bar Association’s Standards for Criminal Justice (2d ed) permits limited judicial involvement in negotiations concerning the plea and sentence, whereas Rule 11(e)(1) of the Federal Rules of Criminal Procedure prohibits judicial participation in such discussions. The briefs submitted by the parties demonstrate that other jurisdictions retain divergent rules on this subject.
The procedure outlined in this opinion is one that Michigan courts and judges may decline to utilize. When asked to state a preliminary impression regarding a pending case, a judge may prefer not to make such a disclosure. This preference may stem from the circumstances of a particular case, including the incomplete nature of the record, or it may reflect a broad preference by the court or judge not to participate in sentence discussions of this sort.
VII
The procedure that the circuit judge followed in this case accords with our holding today, except that the judge’s disclosure appears to have been made on his own motion, rather than upon the defendant’s request. However, we will not reverse on that basis, because the judge did not have the benefit of this opinion at the time he ruled. In future cases, however, we caution that a judge may not initiate discussions regarding the appropriate disposition of the case.
With that exception, we see no error in the ruling of the circuit court, and we therefore reverse the judgment of the Court of Appeals and reinstate the judgment of the circuit court.
Cavanagh, C.J., and Levin, Brickley, Boyle, Riley, Griffin, and Mallett, JJ., concurred.
People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).
The 40-month minimum sentence for kidnapping was a departure below the recommended range found in the sentencing guidelines (60 to 144 months). In the written explanation for the departure, the judge stated:
The "Kidnapping” was grabbing a stepchild to force a commonlaw wife (mother of the victim) to allow him to see his baby on Father’s Day — There are kidnappings and kidnappings.
Before resentencing, the defendant was to be given an opportunity to withdraw his pleas.
In the intervening decade, the sentencing guidelines have allowed reasonable expectations to develop regarding the likely consequences of a plea. Sentences are also subject to appellate review for proportionality.
If the prosecutor is offering to reduce the charge in exchange for a plea of guilty or nolo contendere, the judge likewise may state on the record the sentence that appears to be appropriate for the reduced charge.
Cf. Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672; 194 NW2d 693 (1972), Genesee Prosecutor v Genesee Circuit Judge, 391 Mich 115; 215 NW2d 145 (1974).
Const 1963, art 1, § 24.
See, e.g., the Crime Victim’s Rights Act, MCL 780.751 et seq.; MSA 28.1287(751) et seq.
MCR 6.425(D)(2)(c); MCL 780.765; MSA 28.1287(765).
MCL 780.764; MSA 28.1287(764).
This is so, whether the defendant’s knowledge results from a sentence bargain or prosecutorial recommendation as discussed in Killebrew, or from a judge’s statement of the sort discussed in this opinion. | [
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Per Curiam.
Under MCR 2.114, the circuit court imposed sanctions on a lawyer representing the plaintiff. Despite the attorney’s argument that sanctions can be ordered only against a person who files a "pleading” as defined in MCR 2.110(A), the Court of Appeals affirmed. We likewise affirm, because the rules on the signing of pleadings apply to all motions, affidavits, and other papers provided for by the court rules. MCR 2.113(A).
I
In April 1989, the plaintiff sued her former spouse. Later, she filed an amended complaint in which she named her former spouse’s father and sister as codefendants.
The complaint and first amended complaint were signed by the plaintiff alone. No lawyer’s signature appeared on these papers. Later, however, she was represented by attorney C. William Garratt, who signed and filed papers on her behalf.
The plaintiff’s pleadings contained numerous allegations of misconduct on the part of the three codefendants. To a great extent, however, the plaintiff’s claims concerned matters that had been resolved in the divorce action between the plaintiff and her former spouse. The defendants therefore moved for summary disposition, and for the imposition of sanctions under MCR 2.114.
The circuit court dismissed this suit, and imposed sanctions under MCR 2.114. The court ex plained that the papers filed by the plaintiff and her lawyer "contained] false and scandalous allegations, stated for the improper purpose of harassment and vexation . . . The court also found that the papers "were not well founded in fact and/or warranted by existing law or a good faith argument for the extension, modification or reversal of existing law.”
The circuit court ordered the plaintiff and her lawyer to pay sanctions to the defendants in the total amount of $11,500. Later, the court modified its order to direct that the sanctions be paid by the lawyer, and not personally by the plaintiff.
Mr. Garratt appealed to the Court of Appeals, which affirmed the imposition of sanctions. This Court later denied leave to appeal. 441 Mich 887 (1992).
The plaintiff’s lawyer, Mr. Garratt, has moved for reconsideration of the order in which we denied leave to appeal.
II
The principal question raised in the motion for reconsideration is whether sanctions under MCR 2.114 can be imposed against a lawyer who has not signed a "pleading” as defined in MCR 2.110(A). This question arises because MCR 2.114(D) and (E) refer to pleadings, and not to other papers filed in a case. Since the plaintiff’s complaint and amended complaint were filed in propria persona, the lawyer did not file a pleading in this case. Mr. Garratt thus argues that he is not subject to sanctions under MCR 2.114(D) and (E).
The lawyer urges adoption of the analysis found in Richmond Twp v Erbes, 195 Mich App 210, 224-225; 489 NW2d 504 (1992). There, the Court of Appeals agreed that sanctions under MCR 2.114(D) and (E) can be applied only to a person who has filed a "pleading,” as defined in MCR 2.110(A).
In other opinions, however, the Court of Appeals has recognized that MCR 2.113(A) provides that "[t]he rules on the form, captioning, signing, and verifying of pleadings apply to all motions, affidavits, and other papers provided for by these rules.” For that reason, sanctions can be imposed against a lawyer who files an improperly signed paper, even if it is not a pleading. Morris v Detroit, 189 Mich App 271, 280; 472 NW2d 43 (1991). See also Warden v Fenton Lanes, Inc, 197 Mich App 618, 625-627; 495 NW2d 849 (1992); People v Herrera, 199 Mich App 425, 427; 502 NW2d 347 (1993).
The Court of Appeals correctly decided the present case. After quoting MCR 2.114(D) and (E), the Court properly applied MCR 2.113(A), as explained in Morris. 189 Mich App 280. We therefore grant the. motion for reconsideration, and affirm the judgments of the Court of Appeals and the circuit court. MCR 7.302(F)(1).
Cavanagh, C.J., and Brickley, Boyle, Riley, Griffin, and Mallett, JJ., concurred.
Levin, J. I would deny reconsideration.
Mr. Garratt was the plaintiff’s employer. Her ex-spouse is a lawyer who was formerly in practice with Mr. Garratt. Before the plaintiff filed this suit, Mr. Garratt had filed in Oakland Circuit Court a complaint against the plaintiff’s ex-spouse; the complaint contained many of the allegations found in the present suit. That suit was later dismissed.
The circuit court also appointed a receiver for Mr. Garratt in order to facilitate payment of the sanctions. The Court of Appeals later set aside the appointment of the receiver because "the facts of the instant case do not present an extreme case which requires the appointment of a receiver” and because Mr. Garratt had posted a $15,000 cash bond. Unpublished opinion per curiam of the Court of Appeals, decided February 7, 1992 (Docket No. 129292).
Unpublished opinion per curiam of the Court of Appeals, decided February 7, 1992 (Docket No. 127013).
That definitional provision states that a "pleading” means only a complaint, a cross-claim, a counterclaim, a third-party complaint, an answer to one of those four types of pleading, and a reply to an answer.
Effect of Signature. The signature of an attorney or party, whether or not the party is represented by an attorney, constitutes a certification by the signer that
(1) he or she has read the pleading;
(2) to the best of his or her knowledge, information, and belief formed after reasonable inquiry, the pleading is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law; and
(3) the pleading is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
Sanctions for Violation. If a pleading is signed in violation of this rule, the court, on the motion of a party or on its own initiative, shall impose upon the person who signed’it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, including reasonable attorney fees. The court may not assess punitive damages.
Warden was authored by Judge McDonald, who concurred in Richmond Twp. He stated in Warden that "upon a more thorough examination of the issue as presented in this case, I believe the Richmond case wrongly decided this issue.” 197 Mich App 627, n 2.
Though recognizing the correct disposition, the Warden and Herrera panels were obliged to follow Richmond Twp. See Administrative Order No. 1990-6, 436 Mich lxxxiv; Administrative Order No. 1991-11, 439 Mich cxliv; Administrative Order No. 1992-8, 441 Mich cxi.
We have considered the other arguments offered by Mr. Garratt in his motion for reconsideration, and we find that they do not merit discussion. The motion for consolidation with Warden, now pending in this Court on an application for leave to appeal that does not concern sanctions under MCR 2.114, is denied. | [
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Per Curiam.
The defendant pleaded guilty of involuntary manslaughter and received a prison term of from three to fifteen years. She seeks to be resentenced on the ground that the circuit judge erred in applying the revised sentencing guidelines of October 1, 1988, to her May 1988 offense. We are persuaded that there was no error.
i
The defendant was charged with open murder and possession of a firearm during the commission of a felony in connection with the May 1988 fatal shooting of her sixteen-year-old daughter. The incident occurred during an argument at the family home.
In September 1988, the defendant pleaded guilty in Jackson Circuit Court to a reduced charge of involuntary manslaughter, admitting gross negligence in the discharge of a firearm. In exchange for her plea, the Jackson County Prosecutor agreed to the dismissal of the original charges.
The defendant was sentenced on October 20, 1988, to serve a prison term of from thirty-six months to fifteen years. The minimum sentence was in the middle of the recommended range set forth in the second edition of the sentencing guidelines (twelve to sixty months). The second edition took effect October 1, 1988. Administrative Order No. 1988-4, 430 Mich ci.
The defendant challenged her sentence in the Court of Appeals. She argued that, since her offense was committed prior to the effective date of the second edition of the guidelines, the circuit judge should have applied the first edition. As scored by the defendant, the recommended minimum sentence under the earlier edition would have been only zero to thirty-six months. She contended that her actual sentence thus would have been less, since the circuit judge clearly did not intend to impose a sentence at the top of the guidelines.
In an opinion per curiam, the Court of Appeals denied relief. 181 Mich App 311; 448 NW2d 820 (1989). The panel held that the sentencing court did not err in applying the revised guidelines of October 1, 1988, to the defendant’s May 1988 offense. The Court reasoned that Administrative Order No. 1988-4 plainly required the use of the second edition in every sentencing proceeding after October 1, and that there was no ex post facto problem because the guidelines were procedural, not substantive.
The defendant asks this Court to overturn the decision of the Court of Appeals and to order that she be resentenced.
ii
We agree with the Court of Appeals that Administrative Order No. 1988-4 required the circuit judge to apply the second edition of the sentencing guidelines when sentencing the defendant on October 20, 1988. The order states, in pertinent part:
Administrative Order No. 1985-2, 420 Mich lxii, and Administrative Order No. 1984-1, 418 Mich lxxx, are rescinded as of October 1, 1988. The Sentencing Guidelines Advisory Committee is authorized to issue the second edition of the sentencing guidelines, to be effective October 1, 1988. Until further order of the Court, every judge of the circuit court and of the Recorder’s Court for the City of Detroit must thereafter use the second edition of the sentencing guidelines when imposing a sentence for an offense that is included in the guidelines. [430 Mich ci. Emphasis added.]
Our conclusion—that use of the second edition is tied to the date that sentences are imposed, rather than to the date that offenses are committed—is consistent with the manner in which the first edition was introduced and revised. This Court initially invited judges to use the guidelines, but did not require them to do so. See Administrative Order No. 1983-3, 417 Mich cxxi, which took effect May 1, 1983. We subsequently made the use of the first edition mandatory, effective March 1, 1984. Administrative Order No. 1984-1, 418 Mich lxxx. The guidelines were routinely applied after March 1 in cases where the offenses had occurred prior to that date.
The first edition of the sentencing guidelines was revised several times. The State Court Administrative Office issued replacement pages that contained revisions dated October 1982, April 1983, April 1984, and October 1984. These revisions were given immediate effect by sentencing judges. Thus, we reject the defendant’s contention that she is entitled to be resentenced because of Administrative Order No. 1988-4. Our inquiry does not end here, however.
hi
The defendant also asserts that application of the second edition of the sentencing guidelines violates the proscriptions against ex post facto laws in the state and federal constitutions.
Const 1963, art 1, § 10, states:
No bill of attainder, ex post facto law or law impairing the obligation of contract shall be enacted.
There are two relevant federal provisions. US Const, art I, § 9, cl 3 states:
No Bill of Attainder or ex post facto Law shall be passed._
US Const, art I, § 10, cl 1, states:
No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. [Emphasis added.]
This Court has reviewed the history of these provisions. People v Stevenson, 416 Mich 383, 394, 399; 331 NW2d 143 (1982). We have recognized that, although the Ex Post Facto Clause does not apply directly to the judiciary, it applies by analogy through the Due Process Clause of the Fifth and Fourteenth Amendments of the United States Constitution. Id. at 395; Bouie v City of Columbia, 378 US 347, 353-354; 84 S Ct 1697; 12 L Ed 2d 894 (1964).
The United States Supreme Court considered the Ex Post Facto Clause in Calder v Bull, 3 US (3 Dall) 386; 1 L Ed 648 (1798). Justice Chase observed in that case that the term "ex post facto” predated the American Revolution, and explained his understanding of the laws which it precluded:
1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender. [Id. at 390. See also Beazell v Ohio, 269 US 167, 169-170; 46 S Ct 68; 70 L Ed 216 (1925).]
In a series of more recent cases, the Court has set forth the test for determining whether a law violates the ex post facto provision. In Dobbert v Florida, 432 US 282, 293; 97 S Ct 2290; 53 L Ed 2d 344 (1977), the Court said that there is no violation unless the law alters "substantial personal rights” as opposed to "modes of procedure which do not affect matters of substance.” In Weaver v Graham, 450 US 24; 101 S Ct 960; 67 L Ed 2d 17 (1981), the Court said that the law must be retrospective, i.e., it must apply to events occurring before its enactment, and that it must disadvantage the offender affected by it. More recently, the Court observed that "[t]he constitutional prohibition against ex post facto laws cannot be avoided merely by adding to a law notice that it might be changed.” Miller v Florida, 482 US 423, 431; 107 S Ct 2446; 96 L Ed 2d 351 (1987). (Emphasis in original.)
IV
The defendant relies on Miller to argue that retroactive application of the second edition of the sentencing guidelines to her offense violates the ex post facto provision. In Miller, the Court considered a similar question with regard to Florida’s sentencing guidelines. There, as here, the defendant’s offense was committed when the original guidelines were in effect, but the defendant was sentenced after revisions had increased the minimum range.
There are several important differences between the instant case and Miller. The most important, for purposes of our analysis, is that the Florida guidelines establish a presumptive sentencing range; a judge may depart from the guidelines only by giving "clear and convincing” reasons in writing. The only sentences that are subject to appellate review are those where there has been such a departure. Miller, supra at 426.
In Michigan, there is no such "presumptive” range. Judges are permitted to depart from the sentencing guidelines, and are required merely to explain their reasons for doing so. Further, all sentences are subject to appellate review. People v Coles, 417 Mich 523; 339 NW2d 440 (1983), People v Broden, 428 Mich 343; 408 NW2d 789 (1987), and People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990).
v
The differences between the Michigan sentencing guidelines and the Florida scheme are critical to a resolution of the ex post facto question. Sentencing judges in this state are required by this Court’s administrative orders to consider the minimum range recommended by the guidelines, but are not bound by it. As the Court of Appeals observed, the guidelines are but "a tool to assist the sentencing judge in the exercise of discretion.” 181 Mich App 313.
It cannot be said, therefore, that the Michigan guidelines convey substantive rights. Since there are no presumptive sentences, the guidelines as revised did not increase the punishment for the defendant’s crime. Neither before nor after the revisions did the guidelines limit the discretion afforded the sentencing judge in this case by the indeterminate sentencing act. MCL 769.8; MSA 28.1080. There is no violation of the ex post facto provision where the enactment at issue alters modes of procedure rather than substantial personal rights. Dobbert and Miller, supra.
After due consideration of the reasoning in Miller and of the principles set forth, above, we conclude that there was no violation of the ex post facto provision in this case. Accordingly, pursuant to MCR 7.302(F)(1), in lieu of granting leave to appeal, we affirm the decision of the Court of Appeals.
Riley, C.J., and Levin, Brickley, Cavanagh, Archer, and Griffin, JJ., concurred._
MCL 750.316; MSA 28.548.
MCL 750.227b; MSA 28.424(2).
MCL 750.321; MSA 28.553.
The sentencing judge stated that he was taking into account the record, the remarks of defense counsel, and the information and recommendation in the presentence report. Upon consideration of the need to protect society and for deterrence, rehabilitation, and punishment, he was persuaded not to impose the maximum allowable sentence of from ten to fifteen years. See MCL 750.321; MSA 28.553, and People v Tanner, 387 Mich 683; 199 NW2d 202 (1972). Rather, the court "put the emphasis on the minimum aspects of the sentence because the law does have some compassion.”
Administrative Order No. 1984-1 provided that the guidelines would be mandatory for a period of one year, effective March 1, 1984. Administrative Order No. 1985-2, 420 Mich lxii, extended the mandate until further order of the Court.
See, e.g., People v Walker, 428 Mich 261; 407 NW2d 367 (1987), People v Broden, 428 Mich 343; 408 NW2d 789 (1987), and People v Fleming, 428 Mich 408; 410 NW2d 266 (1987).
In Collins v Youngblood, 497 US —; 110 S Ct 2715; 111 L Ed 2d 30 (1990), the Court said that the distinction set forth in Dobbert and other cases has caused confusion in the interpretation of the Ex Post Facto Clause. The Court explained that simply labeling a law "procedural” will not immunize it from scrutiny if it falls within the categories defined in Calder, supra.
Another difference between the Michigan and Florida sentencing guidelines is that the Florida scheme was enacted by the Florida Legislature, although the Florida Supreme Court developed the guidelines, themselves. Miller, supra at 425. The Michigan guidelines were not a legislative enactment.
Further, the Florida guidelines replaced that state’s system of indeterminate sentencing. Id. The Michigan guidelines did not replace this state’s system of indeterminate sentencing.
Still another difference is that revisions to the Florida sentencing guidelines, even though made by the Florida Supreme Court, take effect only when they are adopted by the Florida Legislature. Smith v Florida, 537 So 2d 982 (Fla, 1989). In Michigan, revisions take effect upon the approval of this Court.
It is helpful to keep in mind how this state’s Sentencing Guidelines Advisory Committee arrives at a recommended minimum sen tence range for a particular offense. The recommendation does not stem from policy or philosophical considerations to increase or decrease punishment, but instead reflects actual current practices of Recorder’s Court judges and circuit judges throughout the state. See McComb, An overview of the second edition of the Michigan Sentencing Guidelines, 67 Mich BJ 863 (1988), and the discussion in Milbourn, supra, pp 655-658.
The Legislature has set the maximum penalty for the crime committed by the defendant at fifteen years. MCL 750.321; MSA 28.553. Thus, the most severe minimum sentence that the sentencing judge could have imposed was ten years. People v Tanner, n 4 supra. | [
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Riley, C.J.
We granted leave to appeal and consolidated these six cases to determine whether MCL 257.625a(9); MSA 9.2325(1)(9) is constitutional, and whether disputed blood test results should be suppressed. Additionally, in People v Perlos (On Rehearing), 177 Mich App 657, 658; 442 NW2d 734 (1989), we granted leave to appeal to consider whether the Court of Appeals correctly remanded the case to allow plaintiff to present evidence on a possible "independent source” for the disputed test results. We hold that MCL 257.625a(9); MSA 9.2325(1X9) is constitutional under US Const, Am IV and Const 1963, art 1, § 11, and the Equal Protection Clauses of US Const, Am XIV and Const 1963, art 1, §2. Accordingly, we reverse the decision of the Court of Appeals in People v Perlos, and affirm the decision of the Court of Appeals in People v England.
i
A. PEOPLE v PERLOS, BROWN, MILLER, BENTLEY, SCHOMER
In each of these five cases defendants were involved in one-car accidents in Jackson County between December, 1984, and November, 1985. All defendants were taken to Foote Hospital in Jackson, except for defendant Brown who was transported to Albion Community Hospital. At the hospitals, defendants were subjected to blood tests to measure the alcohol content in their blood. These tests were made for medical treatment. The re- suits of the tests showed that all defendants had an alcohol content over the 0.10 percent limit, signifying legal intoxication.
Some time after the tests were performed, and pursuant to MCL 257.625a(9); MSA 9.2325(l)(9), the prosecution requested the test results from the hospitals, and the hospitals complied. The prosecution did not obtain a search warrant in order to get the results, nor did defendants consent to the release of the records. On the basis of the results of the tests, defendants were arrested and charged with operating a motor vehicle while under the influence of intoxicating liquor, MCL 257.625; MSA 9.2325.
In district court, defendants moved to suppress their test results, claiming that subsection 9 of the implied consent act* was unconstitutional. In Perlos, Miller, Brown, and Schomer, the court determined the statute to be constitutional and ruled against suppressing the evidence. In Bentley, the court found the statute to be unconstitutional and suppressed the evidence.
On appeal in the circuit court, these cases were consolidated. On February 27, 1987, Judge Gordon W. Britten found the statute to be unconstitutional under the Fourth Amendment and the Equal Protection Clause of the Fourteenth Amendment, and suppressed the evidence.
The Court of Appeals granted leave to bring an interlocutory appeal, and on July 18, 1988, affirmed the decision of the circuit court, 170 Mich App 75; 428 NW2d 685 (1988) (McDonald, J., concurring in the result only), holding that the statute violated the Fourth Amendment of the United States Constitution and the parallel Michigan provision. The Court found sufficient governmental involvement in the taking of the blood to invoke Fourth Amendment protections, and consequently determined that the searches did not fall within any of the exceptions to the search warrant requirement. The Court further held that federal and state equal protection guarantees were violated by the statute and ordered the test results suppressed.
However, on December 8, 1988, the Court of Appeals granted plaintiff’s application for rehearing in light of Murray v United States, 487 US 533; 108 S Ct 2529; 101 L Ed 2d 472 (1988). On rehearing, the case was remanded to the district court to find a possible "independent source” to permit admission of the evidence. On September 1, 1989, plaintiff’s request for clarification was granted, and the Court reaffirmed its position that an independent source for the evidence could be established in the lower court.
On December 28, 1989, this Court granted plaintiff’s application for leave to appeal to decide whether the statute is constitutional and whether the test results should be suppressed. Defendants’ application to cross appeal was subsequently granted to determine whether the Court of Ap peals correctly remanded the case to determine if an "independent source” existed for the evidence. 433 Mich 917 (1989).
B. PEOPLE V ENGLAND
The events which gave rise to this case took place on June 8, 1985. At approximately 1:30 a.m., a two-vehicle collision occurred at the intersection of Hickory Ridge Road and Rose Center Road in Rose Township in Oakland County. Defendant was driving his Chevrolet truck when it collided with a Ford Tempo. The occupants of the Ford Tempo were killed, and defendant was seriously injured in the accident.
After the collision, defendant was transported to Hurley Medical Center. While in a semiconscious state, defendant’s blood was drawn, and a blood alcohol analysis was performed, revealing an alcohol level over 0.10 percent.
Pursuant to subsection 9 of the implied consent act, the prosecution obtained defendant’s test results without a search warrant and without his consent. After the results were obtained, defendant was arrested. Following a bench trial, he was convicted of two counts of involuntary mansláughter pursuant to MCL 750.321; MSA 28.553. The trial court found that defendant failed to yield the right of way when his truck ran a stop sign and struck the Tempo.
Prior to trial, the trial judge denied defendant’s motion to suppress the blood test results. After his conviction for involuntary manslaughter, defendant appealed in the Court of Appeals. The Court affirmed the conviction and rejected defendant’s challenges to subsection 9 on Fourth Amendment and equal protection grounds. 176 Mich App 334; 438 NW2d 908 (1989). The England Court explicitly declined to follow the analysis of the statute adopted by the Perlos Court. On June 9, 1989, defendant’s motion for rehearing was denied.
Defendant’s application for leave to appeal in this Court was granted to decide whether subsection 9 is constitutional, and whether the disputed test results should be suppressed. This case was consolidated with the Perlos cases. 433 Mich 917 (1989).
II. FOURTH AMENDMENT CHALLENGE TO SUBSECTION 9
The first issue presented is whether subsection 9 of the implied consent act survives constitutional scrutiny under US Const, Am IV and Const 1963, art 1, § ll.
A. REMOVAL OF BLOOD FOR TESTING
The initial inquiry must be whether the actual taking of the blood constituted a search or seizure under the Fourth Amendment. Clearly, a blood test conducted under the direction of police falls within the ambit of the Fourth Amendment. Schmerber v California, 384 US 757; 86 S Ct 1826; 16 L Ed 2d 908 (1966). However, before constitutional protections from searches and seizures can be activated, state action must be involved in the alleged search. See United States v Jacobsen, 466 US 109; 104 S Ct 1652; 80 L Ed 2d 85 (1984). In Jacobsen, the majority stated that the Fourth Amendment is inapplicable " 'to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.’ ” Id., p 113, quoting Walter v United States, 447 US 649, 662; 100 S Ct 2395; 65 L Ed 2d 410 (1980) (Blackmun, J., dissenting).
In Perlos, the Court of Appeals found that there was sufficient state involvement to activate Fourth Amendment protections. The Court held that a search and seizure improperly took place without a search warrant, and that none of the exceptions to the warrant requirement applied to authorize the prosecutorial action. Thus, the statute was found to be unconstitutional.
In England, the Court of Appeals considered the Perlos Court’s analysis of this issue and rejected it. The England Court stated that the Perlos decision
fails to recognize the distinction between the withdrawal of the blood and the turning over of blood test results to the state.
The "search” performed here, i.e., the removal of the blood sample from defendant, was done strictly for purposes of medical treatment and not at the direction of the police, the prosecutor, or state agents. Thus, the actual removal of the blood sample is not a search protected by the Fourth Amendment, since state action is not involved. [176 Mich App 343-344.]
We agree with the distinction drawn by the England Court and its conclusion that the Fourth Amendment was not implicated when defendants had their blood withdrawn for medical treatment. Certainly there are various medical reasons for a doctor to order an alcohol analysis on a patient. For example, determining an alcohol level may be a necessary step for doctors to prescribe safe and effective medication. In these cases, blood was drawn for medical reasons, by medical personnel, and not in connection with any police investigation. Subsection 9 of the implied consent act is not designed to influence the judgment of medical personnel regarding whether chemical analyses should be performed. Since there was no state involvement in the withdrawal and testing of defendants’ blood, we find that there were no Fourth Amendment intrusions at this stage of the cases. In similar circumstances, other state courts have reached the same conclusion. See State v Johnston, 108 NM 778; 779 P2d 556 (1989); Nelson v Alaska, 650 P2d 426, 427 (Alas, 1982); Wisconsin v Jenkins, 80 Wis 2d 426, 427-434; 259 NW2d 109 (1977); Turner v Arkansas, 258 Ark 425, 435-437; 527 SW2d 580 (1975); Oregon v Enoch, 21 Or App 652, 654; 536 P2d 460 (1975); Pennsylvania v Gordon, 431 Pa 512, 517-519; 246 A2d 325 (1968), cert den 394 US 937 (1969).
B. ACQUISITION OF BLOOD TEST RESULTS
Our second inquiry is whether the state’s request and acquisition of blood test results without a search warrant infringed on defendants’ Fourth Amendment privacy interests. In other words, did defendants have privacy interests in their blood alcohol test results? If no privacy interests existed, defendants do not have standing to challenge the government action.
The test to determine if a person has a protected Fourth Amendment privacy right is whether that person has a reasonable expectation of privacy in the area invaded by the government. Katz v United States, 389 US 347; 88 S Ct 507; 19 L Ed 2d 576 (1967). The test was articulated by this Court in People v Smith, 420 Mich 1, 28; 360 NW2d 841 (1984), as "whether the defendant had an expectation of privacy in the object of the search and seizure and whether that expectation is one that society is prepared to recognize as reasonable.” In discussing the parameters of the expectation test, the Smith Court stated:
It offers no exact template that can be mechanically imposed upon a set of facts to determine whether or not standing is warranted. It does, however, provide the normal common-law value of general direction and practical flexibility. [Id., p 26.]
The Court proceeded to cite with approval from Justice Powell’s concurring opinion in Rakas v Illinois, 439 US 128, 152; 99 S Ct 421; 58 L Ed 2d 387 (1978), where he stated "[t]he ultimate question, therefore, is whether one’s claim to privacy from government intrusion is reasonable in light of all the surrounding circumstances.” Thus, the Smith Court determined that whether a person’s expectation of privacy is reasonable should be decided after considering the totality of the circumstances.
The Court of Appeals in Perlos did not address whether a reasonable expectation of privacy existed in blood test results. However, in England, the Court found that the defendant’s expectation of privacy was not reasonable, stating:
By enacting subsection (9) of the implied consent statute, the Legislature has chosen to limit the scope of the evidentiary privilege. By doing so, the people of the State of Michigan, through the action of their Legislature, have indicated that they do not recognize a reasonable expectation of privacy in the results of a blood alcohol test taken from the driver of a car in an accident, where the test was administered by a hospital staff pursuant to medical treatment or diagnosis. [176 Mich App 345.][ ]
Applying the reasonable expectation of privacy test to the instant case, we believe that defendants shared a subjective expectation that their test results would remain private. However, we do not believe that an expectation of privacy in blood alcohol test results, under these circumstances, is one which society is willing to consider reasonable.
Furthermore, we believe that a review of United States Supreme Court cases relating to third-party records supports our analysis. In Couch v United States, 409 US 322; 93 S Ct 611; 34 L Ed 2d 548 (1973), the petitioner challenged an irs summons directed at her accountant to produce business records. The Court rejected the petitioner’s argu merits that she had a protected interest in tax records in the hands of her accountant. Justice Powell noted that no "confidential accountant-client privilege” existed under federal law, id., p 335. The Court found no justifiable expectation of privacy because much of the summons information was required to be disclosed on tax returns and would not remain private. The Court also noted that the tax system was dependent on "honest self-reporting” to survive.
In United States v Miller, 425 US 435; 96 S Ct 1619; 48 L Ed 2d 71 (1976), the Bank Secrecy Act of 1970 mandated that banks maintain certain transactional records. The Treasury Department subpoenaed all bank records connected with the respondent’s activities. The respondent was subsequently convicted of tax-related crimes arising from an illegal liquor manufacturing operation. The respondent challenged the subpoena on the ground that it constituted a search and seizure of his "private papers.” Id., p 440.
The Court held that the respondent had no reasonable expectation of privacy in the records. The Court reasoned that the records belonged to the bank and that the respondent could not claim ownership or possession of the records. Also, the subpoenaed checks and deposit slips were not of a confidential nature, but were financial documents to be used in commercial transactions. The Court reasoned that no legitimate expectation of privacy existed because the information was voluntarily exposed to the bank’s employees in the ordinary course of business. Also, the Court stated that Congress did not perceive any legitimate expectation of privacy in the records because the purpose of the act was to maintain records which "have a high degree of usefulness in criminal, tax, and regulatory investigations and proceedings.” 12 USC 1820b(a)(l).
Lastly, the Miller Court stated:
The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government. . . . This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.[ ] [425 US 443.]
Several state courts have also dealt with similar issues regarding privacy rights in medical records or blood samples. In Wisconsin v Jenkins, supra, the defendant was charged with negligent homicide as a result of using a motor vehicle while intoxicated. The defendant was in and out of consciousness after an accident, and his blood was drawn without his consent for purposes of medical treatment. The prosecution somehow obtained the results prior to the defendant’s arrest. The doctor who ordered the chemical analysis testified at the defendant’s preliminary examination, and the defendant was bound over for trial. The defendant challenged the admissibility of the test results on Fourth Amendment grounds, but the Supreme Court of Wisconsin allowed admission of the evi dence. The court held that no reasonable expectation of privacy existed either in the doctor’s testimony or the test results. The basis of the court’s decision was a Wisconsin statute which precluded the physician-patient privilege from applying in homicide trials.
In Pollard v State, 439 NE2d 177 (Ind App, 1982) , the defendant appealed his conviction for driving while intoxicated which resulted in the death of another person. After a collision, the defendant’s blood was drawn at a hospital for medical treatment. Although they had probable cause, the prosecution later subpoenaed the blood sample without a search warrant. The court noted that a state statute exempted blood alcohol test results from the physician-patient privilege. The court dismissed the defendant’s Fourth Amendment challenge to the use of the results by noting that the blood sample was not privileged and was taken from the hospital, not the defendant. The defendant could "not claim the right of another to be free from search and seizure.” 439 NE2d 183.
In State v Fears, 659 SW2d 370 (Tenn Crim App, 1983) , cert den 465 US 1082 (1984), the defendant was convicted of aggravated rape, and challenged a subpoena of his medical records on Fourth Amendment grounds. The court relied on United States v Miller, supra, in rejecting the defendant’s argument. It found that the defendant did not have a reasonable expectation of privacy in records owned and possessed by the hospital, citing Miller for the proposition that information revealed to a third party, even for a limited purpose, can be conveyed to the government without violating Fourth Amendment rights.
The defendant was convicted of causing death by use of an automobile in State v Dyal, 97 NJ 229, 232; 478 A2d 390 (1984). After a collision, the defendant consented to a blood test for medical treatment. Four days later, the prosecutor subpoenaed the results. The court balanced the physician-patient privilege against the public interest in prosecuting drunken driving cases and determined that a "reasonable basis” to believe the defendant had been drinking was required to subpoena the test results. Although the privilege clearly applied, the public interest required a mitigation of the probable cause standard. In tending to emergency duties at the scene of an accident, police may not have time to accompany an injured person to a hospital to supervise a blood test. The court also noted that it was more likely that injured parties would receive prompt medical attention if the police did not feel compelled to establish probable cause at the scene of an accident.
We also look to other analogous statutes to gauge the propriety of the law in question. Government frequently imposes obligations on third parties to report information evidencing suspicious or criminal activity. The United States Supreme Court in Whalen v Roe, 429 US 589; 97 S Ct 869; 51 L Ed 2d 64 (1977), considered the constitutionality of a New York reporting statute. The statute required that physicians report to the State Department of Health the names and addresses of those persons using dangerous prescription drugs. Physicians also had to identify the prescribing physician and the pharmacy, and report the type and amount of the drug prescribed. The primary purposes of the act were to acquire information and to prevent unlawful use and diversion of hazardous drugs. In upholding the law against challenges by doctors and patients, the Court said that the disclosures were not
meaningfully distinguishable from a host of other unpleasant invasions of privacy that are associated with many facets of health care. Unquestionably, some individuals’ concern for their own privacy may lead them to avoid or to postpone needed medical attention. Nevertheless, disclosures of private medical information to doctors, to hospital personnel, to insurance companies, and to public health agencies are often an essential part of modern medical practice even when the disclosure may reflect unfavorably on the character of the patient. Requiring such disclosures to representatives of the State having responsibility for the health of the community, does not automatically amount to an impermissible invasion of privacy. [Id. at 602.]_
Indeed, many institutions demand the use of personal medical information for a variety of reasons, and these uses serve important societal functions.
After finding no Fourteenth Amendment violation, the Court rejected a Fourth Amendment challenge to the statute, stating that cases finding such a privacy right
involve affirmative, unannounced, narrowly focused intrusions into individual privacy during the course of criminal investigations. We have never carried the Fourth Amendment’s interest in privacy as far as the Roe appellees would have us. We decline to do so now. [Id. at 604, n 32.]
A similar type of reporting act is the Bank Secrecy Act and corresponding regulations which require financial institutions to report suspicious banking activity. One such provision is that currency transactions over $10,000 have to be reported. In California Bankers Ass’n v Shultz, 416 US 21; 94 S Ct 1494; 39 L Ed 2d 812 (1974), the Supreme Court upheld this reporting requirement in the face of a Fourth Amendment challenge by banking institutions. In United States v Kaatz, 705 F2d 1237 (CA 10, 1983), the court upheld the reporting provision against a Fourth Amendment challenge by a bank customer who claimed a privacy interest in bank records, citing United States v Miller, supra, in rejecting the customer’s argument._
On the state level, all states have child protection statutes which require that suspected child abuse be reported to state or local authorities. Michigan’s law, MCL 722.623; MSA 25.248(3), requires therapists, doctors, psychologists, teachers, and many others to report suspected child abuse to state authorities. In People v Cavaiani, 172 Mich App 706; 432 NW2d 409 (1988), lv den 432 Mich 853 (1989), the Court of Appeals rejected the defendant therapist’s argument that the statute violated his Fourth Amendment rights and those of his patients. Similar legislation placing a reporting obligation on medical institutions is MCL 750.411; MSA 28.643, which requires that medical personnel report wounds inflicted by deadly weapons to local authorities.
Applying the reasonable expectation of privacy test to Perlos and England, we believe that defendants shared a subjective expectation that their test results would remain private. Generally, information relating to medical treatment falls under the physician-patient privilege, and remains confidential.
However, we do not believe that an expectation of privacy in blood alcohol test results, under these circumstances, is one which society is willing to consider reasonable. To assess the objective aspect of this test we must consider the totality of the circumstances in searching for "understandings that are recognized and permitted by society.”
Although not determinative, one source in analyzing the reasonableness of an expectation is to look to the Legislature. In Jenkins and Pollard, finding no Fourth Amendment interest, the courts acknowledged that state statutes exempted the physician-patient privilege in those circumstances. Also, as part of its analysis, the United States Supreme Court in United States v Miller, supra, noted that Congress did not consider reasonable an expectation of privacy in bank records because of their usefulness in criminal, tax, and regulatory investigations. Likewise, we are persuaded that in Michigan, under subsection 9, the Legislature does not consider reasonable an expectation of privacy in blood alcohol test results. The Legislature decided to abrogate the physician-patient privilege by granting prosecutors access to test results. Nor has the Legislature abolished a longstanding common-law right by creating an exception to the privilege. The physician-patient privilege is a statutorily created right which did not exist at common law. See New York Life Ins Co v Newman, 311 Mich 368; 18 NW2d 859 (1945), and People v Boucher, 131 Mich App 216; 345 NW2d 670 (1983). In fact, the privilege is subject to many exceptions in states where it exists by virtue of statute.
By enacting subsection 9, the Legislature has acted consistently with other provisions of the implied consent act in expressing its belief that when people drive, they encounter a diminished expectation of privacy. For example, under MCL 257.625c; MSA 9.2325(3), a person is presumed to have given consent to blood, urine, or breath tests if arrested for any of various offenses related to driving under the influence of alcohol or controlled substances. Under MCL 257.625a(6); MSA 9.2325(1X6), if a person refuses the request of a peace officer to submit to a blood, breath, or urine test, the person’s operator’s license will be suspended, and six points added to that person’s driving record.
Furthermore, it is apparent there is a strong public interest reflected in subsection 9 of the implied consent act. We believe society is aware of the need for effective laws to curtail drunken driving. Intoxicated drivers take a devastating human and financial toll each year. In 1988, in Michigan alone, there were 705 fatal traffic accidents that were alcohol related. Those accidents claimed 793 lives, 46.5 percent of the total highway deaths that year. Nor is this a recent prob lem. Throughout the nation, state legislatures have been wrestling with this tragic problem for decades.
We are persuaded that the public interest is furthered by this act because it facilitates the prosecution of drunken drivers and insures that drivers who are injured in automobile accidents will get prompt medical attention because police will be less inclined to detain an injured driver for criminal investigation.
We find subsection 9 to be a carefully tailored statute which only allows chemical test results to be turned over to the state under narrowly defined circumstances, if the state requests them. For the statute to apply there first must be an accident, a person must be taken to a medical facility, the person must have been the driver of a vehicle involved in the accident, and medical personnel must order a chemical analysis, on their own initiative, for medical treatment. This is not a sweeping abandonment of the physician-patient privilege. Prosecutors can only gain access to chemical test results. They cannot obtain all of a person’s medical records, nor can they obtain a blood sample for their own discretionary testing. Consequently, within narrow parameters, the Legislature has created a minor exception to the physician-patient privilege. Thus, we conclude that the scope of the enactment does not amount to an authorization for government intrusion on defendants’ Fourth Amendment interests.
Furthermore, we agree with the rationale underlying United States v Miller suggesting that there is no objectively reasonable expectation of privacy in the test results. Clearly, defendants cannot claim ownership or possession of the results. Also, as stated in Miller, information revealed to a third party, even for a limited purpose, can properly be conveyed to the government even if the information was revealed in confidence. In these cases, blood was taken for a limited purpose, medical treatment. As in Miller, in both Perlos and England, the information conveyed was not privileged. Under the Miller analysis, once the hospitals obtained the results for medical purposes, it would have been unreasonable for defendants to assume that the results would necessarily remain private. At the very least, various hospital employees become aware of the test results in the normal course of their work. Society places a risk on persons in their dealings with third parties that information conveyed to third parties will not remain private. Moreover, while in Miller the government was allowed access to all of the respondent’s bank records, in the instant case, the state could only obtain an extremely limited and well-defined portion of defendants’ overall medical records.
In summary, we find persuasive statutory analo gies in the reporting acts related to prescription drugs, child abuse, deadly weapon injuries, and financial activity. These statutes impose obligations on third parties to report to the government certain types of information which they might happen upon during the ordinary course of their jobs. Much of this information is personal medical or financial data. These statutes are commonly used and relied on. An efficient information gathering tool, this type of statute is effective in helping government to effectuate its priorities. We view the prevalence of reporting statutes as clear evidence that society recognizes as reasonable laws which oblige third parties to report certain sensitive information to the government. Furthermore, we note that these statutes have consistently withstood constitutional challenges.
Subsection 9 is comparable to the reporting acts to the extent it imposes obligations on medical personnel to turn over information to the government which they acquire during the ordinary course of their jobs. In addition, unlike the reporting acts which impose blanket obligations, under subsection 9 the obligation to turn over information is only activated upon request by the state.
By our decision today, we do not hold that unrestricted access to medical records is outside the scope of Fourth Amendment protection. Rather, we hold that defendants do not have a protected Fourth Amendment interest in blood alcohol test results under the circumstances presented by these cases. Any expectation of privacy defendants may have had in the test results was unjustified, given societal concerns with regard to drunken driving, the Legislature’s implied amendment of the physician-patient privilege, and the resulting minimal intrusion on defendants. In so holding, we also recognize that defendants, in conveying information to the hospitals, assumed the risk that the hospitals might disclose information to the state. We find that MCL 257.625a(9); MSA 9.2325(1)(9) does not violate US Const, Am IV or Const 1963, art 1, § 11.
III. EQUAL PROTECTION CHALLENGE TO SUBSECTION 9
The next issue we must address is whether subsection 9 is constitutionally valid under the Equal Protection Clauses of US Const, Am XIV and Const 1963, art 1, § 2.
This Court, in Manistee Bank & Trust Co v McGowan, 394 Mich 655, 668; 232 NW2d 636 (1975), discussed equal protection challenges to legislation. In pertinent part, the Court stated:
If the interest is "fundamental” or the classification "suspect,” the court applies a "strict scrutiny” test requiring the state to show a "compelling” interest which justifies the classification. Rarely have courts sustained legislation subjected to this standard of review.
Other legislation, principally social and economic, is subjected to review under the traditional equal protection test. The burden is on the person challenging the classification to show that it is without reasonable justification. It has been said that "[a] statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.” A classification will stand unless it is shown to be "essentially arbitrary.” Few statutes have been found so wanting in "rationality” as to fail to satisfy the "essentially arbitrary” test.
In Perlos, the Court of Appeals held that the defendants’ fundamental right to be free from unreasonable searches and seizures had been violated. Therefore, a strict scrutiny analysis was employed, and the Court found that the statute violated equal protection guarantees. The Court also held that the statute would not survive a rational-basis analysis:
We find no reasonable or rational basis for denying conscious drivers who are in the hospital the same opportunity to refuse a blood test as is given to conscious drivers who are not in the hospital. [170 Mich App 89-90.]
We do not agree. We find that no fundamental Fourth Amendment right was violated by the statute. Furthermore, we are persuaded that treating hospitalized individuals who are not under arrest differently from arrested drivers who are not in the hospital does not raise the level of examination to strict scrutiny. Thus, we conclude that hospitalized persons, not under arrest, do not constitute a "suspect” class.
Subsection 9 can be classified as "principally social and economic” legislation. Therefore, our inquiry is whether the "classification itself is rationally related to a legitimate governmental interest.” United States Dep’t of Agriculture v Moreno, 413 US 528, 533; 93 S Ct 2821; 37 L Ed 2d 782 (1973).
We agree with the Court of Appeals in England:
One possible rational basis is safety. If statutory procedure requires a driver involved in an accident to be arrested before the blood alcohol test were administered, the procedure would lead to delays in treatments for injured drivers while the arresting officers took the steps necessary for a legal arrest. Second, in an attempt to combat the tremendous cost in lives and property damage to our society, the Legislature has chosen "to ease the prosecution of drunk drivers [who have been involved in an accident] by making the results of blood alcohol tests performed by hospitals available to prosecutors, without the use of otherwise cumbersome procedures.” People v Stoney, 157 Mich App 721, 726; 403 NW2d 212 (1987). [176 Mich App 347-348.]
The Court then cited O’Donnell v State Farm Mutual Automobile Ins Co, 404 Mich 524, 542; 273 NW2d 829 (1979), where this Court stated:
"If it be said, the law is unnecessarily severe, and may sometimes do injustice, without fault in the sufferer under it, our reply is: these are considerations that may very properly be addressed to the legislature, but not to the judiciary—they go to the expediency of the law, and not to its constitutionality.”
The responsibility for drawing lines in a society as complex as ours—of identifying priorities, weighing the relevant considerations and choosing between competing alternatives—is the Legislature’s, not the judiciary’s. Perfection is not required:
"[T]he drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one. Perfection in making the necessary classifications is neither possible nor necessary.”
One reasonable basis underlying subsection 9 is safety. By "easing the prosecution” of drunken drivers, the Legislature has paved the way for safer travel in Michigan. We find that subsection 9 is rationally related to a legitimate state interest. Accordingly, we hold that subsection 9 of the implied consent act is constitutional under US Const, Am XIV, § 1 and Const 1963, art 1, § 2.
IV. CONCLUSION
We hold that subsection 9 of the implied consent act is constitutionally valid under US Const, Am IV and Const 1963, art 1, § 11, and the Equal Protection Clauses of US Const, Am XIV and Const 1963, art 1, § 2. Therefore, the test results were improperly suppressed in the Perlos cases. Because we find subsection 9 to be constitutional under the Fourth Amendment and the Equal Protection Clause, we find it unnecessary to reach the issues whether the evidence should be suppressed and whether the Court of Appeals in Perlos properly remanded the case. We reverse the decision of the Court of Appeals in Perlos, and we remand the Perlos cases to the district court. We affirm the decision of the Court of Appeals in England.
Brickley, Boyle, and Griffin, JJ., concurred with Riley, C.J.
We find it unnecessary to reach the issues whether the test results in both cases should be suppressed, and whether the Court of Appeals in Perlos properly remanded to the trial court.
The record indicates that the cases of defendants Perlos, Bentley, and Miller were initially consolidated in circuit court with two defendants not involved in this appeal. Those five stipulated for purposes of appeal that their blood was drawn for medical treatment. The record lacks any stipulation by defendants Brown or Schomer to that effect. Nonetheless, the five cases before us were consolidated to decide the same issue—the constitutionality of MCL 257.625a(9); MSA 9.2325(1X9). The only way the constitutionality of the statute can be properly before this Court is if the cases meet the requirements of the statute.
Defendant Brown contests that his blood test was for purposes of medical treatment. Since Perlos is an interlocutory appeal, defen dants can contest the applicability of the statute to their unique facts when the cases return to trial court.
If after an accident the driver of a vehicle involved in the accident is transported to a medical facility and a sample of the driver’s blood is withdrawn at that time for the purpose of medical treatment, the results of a chemical analysis of that sample shall be admissible in a criminal prosecution for a crime described in subsection (1) to show the amount of alcohol or presence of a controlled substance or both in the person’s blood at the time alleged, regardless of whether the person had been, offered or had refused a chemical test. The medical facility or person performing the chemical analysis shall disclose the results of the analysis to a prosecuting attorney who requests the results for use in a criminal prosecution as provided in this subsection. A medical facility or person disclosing information in compliance with this subsection shall not be civilly or criminally liable for making the disclosure.
MCL 257.625a et seq.; MSA 9.2325(1) et seq.
Subsection 9 is set out in full in n 3.
See n 3.
Const 1963, art 1, § 11, in relevant part provides:
The person, houses, papers and possessions of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things shall issue without describing them, nor without probable cause, supported by oath or affirmation.
Unless there is a compelling reason to afford greater protection under the Michigan Constitution, the Michigan and federal provisions will be treated as affording the same protections. People v Smith, 420 Mich 1; 360 NW2d 841 (1984); People v Nash, 418 Mich 196; 341 NW2d 439 (1983). In this case, we find no compelling reason to afford greater protection under the Michigan Constitution.
The Court stated:
In our view, there is very little distinction for Fourth Amendment purposes between a prior request that blood be withdrawn and tested and a statutory mandate that once blood is withdrawn and tested it must be turned over to the state.
Moreover, it is the involvement of the state rather than the purpose of the search that weighs most heavily toward a finding of state action. A private citizen acting with no state participation may seize evidence even when it is for the sole purpose of aiding a prosecution. In the present case, hospital personnel are statutorily required to turn over blood test results to the state for prosecution. . . . We believe there is sufficient governmental participation and authorization in the present case to constitute state action. [170 Mich App 75, 82-83; 428 NW2d 685 (1988).]
Specifically, the Perlos Court considered the exigent circumstances and consent exceptions to the warrant requirement. The Court stated that exigent circumstances did not exist to justify the search of records without a warrant because the test had already been performed, and the results would be preserved long enough to obtain a warrant. As to consent, the Court held that none of the defendants consented to the release of records to the state. Also, the Court stated that Michigan’s implied consent law, MCL 257.625c; MSA 9.2325(3), could not impute the consent needed because any person has an absolute right to refuse a test under MCL 257.625d; MSA 9.2325(4), and defendants were not given an opportunity to refuse to submit to the tests.
In addition to defendant Brown (see n 2), defendant England also disputes that his blood was drawn for medical treatment. We entertain serious doubts that his contention falls within the grant order in this case. We granted leave to appeal in England to decide "whether MCL 257.625a(9); MSA 9.2325(1)(9) is constitutional [and] whether the disputed test results should be suppressed. . . .” We are to determine, if the statute is unconstitutional, whether the test results should be suppressed despite possible independent sources of admissibility, or a possible good-faith exception to the exclusionary rule. Our order did not cedi into question the Court of Appeals finding that the England case fell within the parameters of the statute.
Nonetheless, defendant England stipulated at trial that his blood was drawn for medical treatment:
Mr. Kozma [Assistant Prosecutor]: ... It is hereby stipulated and agreed by and between the parties hereto, through their respective counsel, as follows:
One, that Dr. Norman Carter was the Emergency Room physician that supervised the Emergency Room Team that treated the Defendant, Trevor England.
That it was under Dr. Carter’s order that someone withdrew blood from the Defendant, for medical treatment.
Mr. Kostin [Defense Counsel]: We have agreed to that, your Honor. [Emphasis supplied.]
Furthermore, defendant does not contend that the police directed or requested that the blood be drawn, and sufficient evidence was adduced at trial to show that the blood was drawn for medical purposes.
This test has its origins in Justice Harlan’s concurrence in Katz.
Justice Boyle’s opinion in People v Catania, 427 Mich 447, 457; 398 NW2d 343 (1986), also discusses the reasonable expectation of privacy test.
Dealing with this issue, a later Court of Appeals opinion, People v Crampton, 180 Mich App 288, 292; 446 NW2d 626 (1989), expressly adopted the reasoning of the Court in England.
12 use 1829b(d).
The Court stated that it declined to address the issue of evidentiary privileges in the context of this statement. Id. at 443, n 4.
A similar rationale was employed in Smith v Maryland, 442 US 735; 99 S Ct 2577; 61 L Ed 2d 220 (1979), where the Court held that the petitioner had no reasonable expectation of privacy in phone numbers dialed from his private residence. The petitioner assumed the risk in using his phone that information transmitted to the phone company might be conveyed to the government.
Other state cases have disallowed use of test results in similar situations. In State v Copeland, 680 SW2d 327 (Mo App, 1984), the defendant was charged with driving a motor vehicle while intoxicated. A collision occurred, after which the defendant was taken to a hospital, and his blood was withdrawn for medical treatment. The police arrived later, requested, and were given a sample of the defendant’s blood. The court held that the defendant had a legitimate expectation of privacy in the blood sample because law, custom, and common practice demanded that information revealed in the physician-patient relationship be kept confidential. The court noted that the physician-patient privilege applied to the case and declined to apply a new Missouri statute which removed the privilege in trials relating to drunken driving offenses.
The court stated "[wjhether the expectation of privacy in blood or the results of tests on it has now been changed, see § 577.037.1 [Mo Rev Stat, 1983 supp], we do not decide as that statute was enacted after defendant’s blood was taken.” 680 SW2d 329.
More recently, in Commonwealth v Hipp, 380 Pa Super 345; 551 A2d 1086 (1988), blood was withdrawn from the defendant for medical treatment. Later on, the police requested that medical personnel perform a blood test, but a technician volunteered the earlier results. These results were used at trial against the defendant to convict him of driving under the influence of alcohol. The court found that the use of the records was justified by probable cause, despite the fact that the defendant had a reasonable expectation of privacy in the medical records, and that his interest was protected by the Fourth Amendment and a parallel state provision. The origin of the privacy right was identified by the court as a provision of the Pennsylvania Consti tution (art 1, § 1). In pertinent part, the provision states that "[a]ll men . . . have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation . . .
Such information is used by public health agencies, medical and social researchers, social programs, employers, insurance companies, government agencies, educational institutions, judicial process, law enforcement, credit investigative agencies, licensing agencies, and the media. This is not an exhaustive list. Gellman, Prescribing privacy: The uncertain role of the physician in the protection of patient privacy, 62 NC L R 255 (1984).
See 31 USC 5313 and 31 CFR 103.22.
Coleman, Creating therapist-incest offender exception to mandatory child abuse reporting statutes—When psychiatrist knows best, 54 U Cinn LR 1113 (1986). Many of these statutes abrogate the physh cian-patient privilege.
MOL 600.2157; MSA 27A.2157 provides in part:
Except as otherwise provided by law, a person duly authorized to practice medicine or surgery shall not disclose any information that the person has acquired in attending a patient in a professional character, if the information was necessary to enable the person to prescribe for the patient as a physician, or to do any act for the patient as a surgeon.
Rakas v Illinois, supra, p 144, n 12.
In State v Copeland, n 16 supra, the Missouri Court of Appeals found a Fourth Amendment interest in a blood sample, but the court declined to apply a new Missouri statute which would have excepted the privilege in that case.
In People v Traylor, 145 Mich App 148, 151; 377 NW2d 371 (1985), the Court found , that the physician-patient privilege had been impliedly amended by MCL 750.411; MSA 28.643, which requires that wounds inflicted by deadly weapons be reported to local police authorities. The Court stated:
When a general statute, such as the one creating the privilege, conflicts with a specific statute, such as the reporting statute, the specific statute is considered to be an exception to the general statute. [Citation omitted.]
See also People v Cavaiani, supra, where the Court of Appeals found a child abuse reporting provision to be a legislative exception to the privilege.
Further support can be found in 1A Sands, Sutherland Statutory Construction (4th ed), § 23.09, p 331.
McCormick, Evidence (3d ed), §§ 98, 101-104, pp 243-246, 249-258; 8 Wigmore, Evidence (McNaughton rev), § 2380, ns 3, 5, 6, §§ 2388-2391, pp 819-828, 853-868.
Department of State Police, Alcohol related fatal motor vehicle traffic accident study Michigan, January-December, 1988.
In Breithaupt v Abram, 352 US 432, 439; 77 S Ct 408; 1 L Ed 2d 448 (1957), the United States Supreme Court stated:
Modern community living requires modern scientific methods of crime detection lest the public go unprotected. The increasing slaughter on our highways, most of which should be avoidable, now reaches the astounding figures only heard of on the battlefield. The States, through safety measures, modern scientific methods, and strict enforcement of traffic laws, are using all reasonable means to make automobile driving less dangerous.
The last sentence of subsection 9 states, "[a] medical facility or person disclosing information in compliance with this subsection shall not be civilly or criminally liable for making the disclosure.” We do not read this sentence as granting immunity to medical personnel for unauthorized "taking” of blood. In other words, medical personnel must still act responsibly and in accordance with the law in acquiring blood samples.
Note the many social uses for medical information in n 17. See also Whalen v Roe, supra. | [
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Riley, C.J.
We granted leave to appeal in these two cases, consolidated for purposes of this appeal, to review the strict rule requiring reversal of a conviction in the event of communication with a deliberating jury outside the courtroom and the presence of counsel.
Communication with a deliberating jury is prohibited by MCR 6.414(A). Any communication with a jury not in conformance with the court rules has been, and continues to be, discouraged by this Court. However, the realities of trial practice lead us to the determination that the harsh rule of automatic reversal goes beyond the limits necessary to safeguard the right of a defendant to a fair trial. Therefore, today we modify the rule of automatic reversal.
The linchpin of the new rule centers on a showing of prejudice. For purposes of this rule, we broadly define prejudice as "any reasonable possibility of prejudice.”
We find that communication with a deliberating jury can be classified into one of three categories: substantive, administrative, or housekeeping. Upon appeal, it is incumbent upon a reviewing court to first categorize the communication that is the basis of the appeal. This will necessarily lead to the determination of whether a party has demonstrated that the communication was prejudicial, or that the communication lacked any reasonable prejudicial effect.
Substantive communication encompasses supplemental instructions on the law given by the trial court to a deliberating jury. A substantive communication carries a presumption of prejudice in favor of the aggrieved party regardless of whether an objection is raised. The presumption may only be rebutted by a firm and definite showing of an absence of prejudice.
Administrative communications include instructions regarding the availability of certain pieces of evidence and instructions that encourage a jury to continue its deliberations. An administrative communication carries no presumption. The failure to object when made aware of the communication will be taken as evidence that the administrative instruction was not prejudicial. Upon an objection, the burden of persuasion lies with the nonobjecting party to demonstrate that the communication lacked any prejudicial effect. Alternatively, a reviewing court, upon its own volition, may find that an instruction which encourages a jury to continue its deliberations was prejudicial to the defendant because it violated the ABA Standard Jury In struction 5.4(b), as adopted by this Court in People v Sullivan, 392 Mich 324; 220 NW2d 441 (1974).
Housekeeping communications are those which occur between a jury and a court officer regarding meal orders, rest room facilities, or matters consistent with general "housekeeping” needs that are unrelated in any way to the case being decided. A housekeeping communication carries the presumption of no prejudice. First, there must be an objection to the communication, and then the aggrieved party must make a firm and definite showing which effectively rebuts the presumption of no prejudice.
We conclude that the instructions in each of the cases at bar fall into the category of administrative communication, except the typewritten definition of second-degree criminal sexual conduct which was a substantive communication. With regard to the administrative communications in each case, the defense counsel waived objection when made aware of the instructions. With regard to the substantive communication in Pannell, the prosecution effectively overcame the presumption of prejudice to the defendant. Furthermore, the note written by the trial court was in conformance with the Sullivan rule and included in the record. We find that the record evidence indicates that neither defendant has suffered "any reasonable possibility of prejudice” as a result of the communications.
Accordingly, we reverse the decision of the Court of Appeals in France and affirm the decision of the Court of Appeals in Pannell.
I. FACTS AND PROCEEDINGS
A. PEOPLE v FRANCE
At the conclusion of a September, 1985, jury trial, LaNathan France was convicted of armed robbery and of breaking and entering an occupied dwelling with intent to commit larceny. The jury acquitted him of second-degree criminal sexual conduct. He was sentenced to serve a term of from twenty to forty years in prison for armed robbery, and a concurrent term of from ten to fifteen years in prison for breaking and entering.
Moments after the jury left the courtroom to begin its deliberations, the trial court asked defense counsel, "[a]ny objection, if [the jurors] ask for the exhibits, just to send them into them by way of the bailiff . . . ?” Defense counsel said he did not object.
While the jury was deliberating, the trial court several times indicated that there had been contact between the bailiff and the jury. On each occasion, defense counsel stated that he had no objection.
The first of these conversations began when the trial court explained that the jury had sent out a note asking for a diagram of the victim’s house, as well as the exhibits that had been produced by the prosecution. The trial court stated, "I instructed [the bailiff] to tell [the jurors] that the diagram on the board wasn’t made an exhibit, thus it’s not one of the exhibits that can be brought to them. Their response was okay.” The trial court then stated that the other exhibits had been given to them. Defense counsel responded: ”[n]o objection to the handling [of] the diagram in the manner in which you did, your Honor.”
Later in the day, the trial court stated that it had received a note from the jury asking for a further definition of criminal sexual conduct. The trial court reported that it had given the jury a written instruction in a form that was approved by the defense counsel. Defense counsel stated on the record that the recitation of the trial court was correct.
Finally, the trial court said that the jury had requested a police report. He told counsel that "the response to [the jurors] was that [the police report] was marked but was not received in evidence; and, therefore, we were not able to give them that.” Defense counsel’s response was the same: "[n]o objection to that, your Honor.”
In the Court of Appeals, France presented many claims of error. Believing one had merit, the Court of Appeals declined to discuss the others.
The Court of Appeals followed the strict rule prohibiting communication with a deliberating jury outside the courtroom and the presence of counsel, People v Cain, 409 Mich 858; 294 NW2d 692 (1980), and reversed the conviction of the defendant. The Court based its decision solely on the doctrine of stare decisis.* Judge Beasley signed the unanimous opinion and added a separate concurrence in which he urged this Court to "revisit and reverse” the automatic reversal rule stated in Zaitzeff v Raschke, 387 Mich 577; 198 NW2d 309 (1972).
The prosecution sought leave to appeal, which we granted on June 30, 1989.
B. PEOPLE v PANNELL
Earl L. Pannell went to trial in November, 1985, on eight counts of first-degree criminal sexual conduct. At the conclusion, a jury found him not guilty of three of the eight counts. With regard to the remaining five counts, Pannell was convicted of the lesser offense of third-degree criminal sexual conduct. He was sentenced to five concurrent terms of from ten to fifteen years in prison.
The jury was instructed near the end of the day on November 12, 1985. The next morning, the jury began deliberating, and, at 10:30 a.m., it asked the court for "[pictures, police report, [and the victim’s] statement.” In the absence of defense counsel, the judge directed the bailiff to give the jury the photographs that were admitted into evidence. However, the court waited to respond to the request for the police report and the victim’s statement until defense counsel appeared at 12:20 p.m. At this time, the matters were placed on the record. Both parties agreed that neither the police report nor the victim’s statement should be sent to the jury because the items were not admitted into evidence. Furthermore, defense counsel had no objections to the jury receiving the photographs. The jury was excused that afternoon at 4:30 p.m. without reaching a verdict.
The following morning, November 14, 1985, at 10:38 a.m., the jury sent a note to the judge which read, "we can not reach an agreement.” Without consulting counsel, the judge immediately replied with a note which read, "[c]ontinue your deliberations . . . .” At 12:12 p.m. that afternoon, the jury sent out a second note which stated, "[m]ay we see the hammers?” Again, without consulting counsel, the judge directed the bailiff to give the jury the hammers that were entered into evidence as exhibits. When the attorneys returned to the courtroom at 12:20 p.m. the same afternoon, the judge summarized the above occurrences for the record. Here again, there was no objection to the judge sending the jury the exhibits that were entered into evidence, in this instance the hammers.
However, defense counsel wanted to place on the record an objection to the jury request of the previous day. The objection was that the testimony of a police officer regarding the victim’s statement should have been reread to the jury. During the objection, the jury returned with its verdict at 12:25 p.m.
The Court of Appeals affirmed the convictions of the defendant. People v Pannell, 170 Mich App 768; 429 NW2d 233 (1988). In doing so, the Court found no error requiring reversal since the note sent to the jury was consistent with the ABA Standard Jury Instruction 5.4(b), adopted by this Court in People v Sullivan, supra. Additionally, the Pannell Court took the opportunity to express its concern about the automatic reversal rule:
We also state that we, like a growing number of our fellow appellate judges, disagree with the strict rule requiring reversal set forth in People v Cain [94 Mich App 644, 648; 288 NW2d 465 (1980)]. Like Judge Sawyer in his concurrence in People v Lyons [164 Mich App 307, 311; 416 NW2d 422 (1987)], we do not believe that contact with a deliberating jury can never be harmless error. We join Judge Sawyer in urging the Supreme Court to review this issue. [Id. at 771.]
The defendant sought leave to appeal, which we granted on June 30, 1989.
II. ANALYSIS
A
It has been clear for well over a hundred years that contact with a deliberating jury must be carefully limited. People v Knapp, 42 Mich 267, 269-272; 3 NW 927 (1879); Churchill v Alpena Circuit Judge, 56 Mich 536; 23 NW 211 (1885).
In recent years, this Court has been asked to address the issue on numerous occasions. In Wilson v Hartley, 365 Mich 188, 190; 112 NW2d 567 (1961), a bailiff and a clerk entered the jury room on the second day of deliberations and delivered an oral message from the judge. The Court said that it did not "condone such improper method of handling a jury trial,” but affirmed the conviction on the ground that there was no prejudice to the plaintiff (against whom the jury returned its verdict). In Wilson, pp 189-190, we emphasized the importance of conforming to the correct procedure:
Trial judges have a responsibility to communicate to the jury directly in open court and in the presence of, or after notice to, the parties or their counsel. The secrecy of the deliberations of the jury is a responsibility of the trial judge. The question of communications, either oral or written, from third parties to the jurors in the jury room has been the subject of several appeals to this Court in the last year. This indicates the importance of calling to the attention of the entire trial bench their duty to preserve the secrecy of the jury deliberations.
A few months later, the Court ordered a new trial in a case in which the trial judge had directed the sheriff to give oral instructions to a deliberating jury. People v Kangas, 366 Mich 201; 113 NW2d 865 (1962). Citing Knapp and Churchill, the Court ordered the new trial without separately discussing the question whether there was any prejudice in that particular case. The Court also cautioned trial judges to be sure that they and others avoid improper contact with deliberating juries:_
We call to the attention of the trial judges of this State their duty to safeguard trial by jury from any suspicion the jury may be tampered with while deliberating. Frequently of late this Court has had similar incidents called to its attention by appeal in which there is reason to believe the opportunity for jury tampering was present.
[W]e . . . caution trial judges that bailiffs, sheriffs, and other court personnel should be warned about practices involving associations with jurors both in and out of the courtroom which might create the opportunity to influence their decisions. [Kangas, supra at 208.]
In Salvatore v Harper Woods, 372 Mich 14, 19-21; 124 NW2d 780 (1963), the trial judge returned a deliberating jury to the courtroom and spoke to the jury in the absence of counsel. The Court said that the trial court should not proceed in this fashion "unless undue delay of the jury’s deliberations would result or unless counsel have agreed by stipulation on the record to permit such further instruction in their absence.” Id. at 21. The Court affirmed the judgment of the trial court, however, observing that the proceedings in Salvatore had occurred in open court and had been recorded.
After wrestling with three more cases involving contact between a deliberating jury and outsiders, the Court decided Zaitzeff v Raschke, supra. In that case, a deliberating jury passed out a note asking that certain testimony be reread. The judge brought the jurors back to the courtroom, where he discussed their request. A short time later, the judge and the court reporter entered the jury room, where the court reporter read to the jury the requested testimony. This Court reversed the trial court’s judgment in Zaitzeff, adopting Justice Black’s view that it is virtually impossible for a defeated party to demonstrate prejudice as a result of an improper visit to a deliberating jury. This Court strongly emphasized its intention to stop the practice of making improper contact:
With what was written so plainly in 1961 for Wilson v Hartley, 365 Mich 188, concerning the indefensible practice of entering the jury room while the jurors are there, no matter by whom done, one would think that this Court had said enough to prevent what took place here. Yet the practice seems to go on, and on, and on, encouraged occasionally by "no prejudice shown” conclusions of a group of Justices who cannot hope to know what was said, or done, or gestured, or hinted, in the sanctity of the jury room. [Id. at 579.]
Later in 1972, this Court reversed a first-degree murder conviction where the trial judge, without obtaining the permission of the attorneys, had entered the jury room to deliver twenty-one exhibits. People v Heard, 388 Mich 182, 183-184; 200 NW2d 73 (1972). Neither the attorneys nor the jury had asked the judge to do this, and defense counsel objected when the judge returned to the courtroom.
In People v Cain, supra, this Court reinstated an order granting a defendant a new trial. A deliberating jury had passed out a . note asking whether its verdict had to be unanimous. The judge read the note and told the bailiff to tell the jurors that their verdict had to be unanimous. Because of this error, the trial court granted the defendant a new trial, which the Court of Appeals set aside. This Court reinstated the trial court’s order for a new trial, since the bailiff’s oral statement to the jury "was in the nature of an instruction, off the record and without counsel, in (at the perimeter of) the jury room, and while the jury was deliberating.” 94 Mich App 648.
The Court’s most recent opinion in this area is People v Anderson, 418 Mich 31; 340 NW2d 634 (1983). In Anderson:
The judge concluded his instructions with the statement that he would, before the jury commenced deliberations, discuss with the lawyers the instructions he had just given. If there were no additional instructions, he would then "personally come to your jury room and advise you that there will be no more instructions,” whereupon "any verbal communication between us shall cease.” After determining that there would be no further instructions, the judge announced that he would, with the consent of both counsel, advise the jury to commence deliberations, and apparently did so. [Id. at 45.]
The Court of Appeals reversed Anderson’s conviction on a different ground, and this Court reinstated the conviction, finding that the ex parte communication with the jury was not error which required reversal because the trial judge had expressed his intention to communicate with the jury in that fashion and neither party had objected, even though each had been put on notice of the judge’s intention to proceed. Nevertheless, the Court once again cautioned that such contact was improper:
There is simply no showing of prejudice in this case .... This view should not be taken in any way as approval of the practice employed in this case. It was an unwise and potentially prejudicial procedure. The better, simpler, and wiser practice would require the trial judge to communicate with the jury only from the bench in the courtroom and on the record. While experience suggests that that may sometimes be a cumbersome and time-consuming procedure, it is a price worth paying to preserve the integrity of the factfinding process, the appearance of jury independence, and the avoidance of the expense, delay, and consumption of judicial resources involved in appellate evaluation of jury room contact between the court and the jurors, [id. at 40-41.]
This issue has also been presented on numerous occasions to the Court of Appeals. Two recent decisions are noteworthy. In People v Kent, 157 Mich App 780, 789-792; 404 NW2d 668 (1987), the Court of Appeals reversed the defendant’s convictions because of errors in evidentiary rulings, and went on to address the defendant’s contention that error which required reversal took place when a court clerk took meal orders from the jury during its deliberations. Defense counsel and defendant were informed after the fact and neither objected. The Court identified the meal order as a "purely housekeeping matter,” id. at 791, and concluded that the communication was not improper. Before leaving the issue, the Kent Court strongly criticized the automatic reversal rule and urged a greater flexibility in the manner with which this Court treats the issue. _
In People v Lyons, 164 Mich App 307, 309; 416 NW2d 422 (1987), lv den 430 Mich 861 (1988), a deliberating jury sent out a note that read, " '[t]he jury cannot reach a decision. What does the judge suggest?’ ” Without consulting either party, the judge told the bailiff to tell the jury to " 'keep on working.’ ” The bailiff delivered the oral message. The Court of Appeals reversed the defendant’s conviction, saying that "[i]n Michigan there is a strict rule prohibiting communication with a deliberating jury outside of the courtroom and the presence of counsel.” The Court of Appeals relied principally upon Cain.
Again, a member of the panel, Judge Sawyer, issued a separate concurrence in which he urged this Court to reexamine the automatic reversal rule. Lyons, supra at 311-313. While noting that an "invasion into the jury room must be looked upon with great concern,” Judge Sawyer continued on, stating, "I cannot agree with the proposition that such an invasion can never be considered harmless.” Id. at 311. Additionally, Judge Sawyer raised the policy concern of requiring the victim of the crime to "be put through another trial in futile reverence to a rule which serves no useful purpose.” Id. at 313.
It is readily apparent that an increasing number of Court of Appeals jurists, while remaining loyal to the doctrine of stare decisis, have found considerable disfavor with the rule of automatic reversal in the event of ex parte communication with a deliberating jury.
B
A review of federal cases that address the issue of ex parte communications with a deliberating jury indicate that the nature of the communication can be classified as either substantive or administrative. Substantive ex parte communication occurs when the trial court provides the jury with supplemental instructions on matters of law. Administrative ex parte communication includes instructions regarding the availability of certain pieces of evidence, and an instruction which encourages the jury to continue its deliberations.
One of the earliest cases involving the issue of substantive ex parte communication is Fillippon v Albion Vein Slate Co, 250 US 76; 39 S Ct 435; 63 L Ed 853 (1919), where an employee brought a personal injury action against his employer for work-related injuries. In Fillippon, the jury was instructed on applicable Pennsylvania law and had retired for deliberations when it sent a written inquiry to the court asking whether the plaintiff should be found to have been contributorily negligent. The court responded with a written supplemental explanation of the law of contributory negligence.
The United States Supreme Court found that the supplemental instruction given to the jury was not in accord with Pennsylvania law, and that it was "calculated to mislead the jury in that it excluded a material element that needed to be considered in determining whether plaintiff should be held guilty of contributory negligence . . . .” Id. at 82. The Court said that "the trial court erred in giving a supplementary instruction to the jury in the absence of the parties and without affording them an opportunity either to be present or to make timely objection to the instruction.” Id. at 81. Although the Court provided no remedy for the error of ex parte communication, it held that erroneous instructions in jury trials are presumptively injurious and furnish grounds for reversal unless it affirmatively appears that they were harmless. The Fillippon rule was then extended to criminal cases in Shields v United States, 273 US 583; 47 S Ct 478; 71 L Ed 787 (1927).
One of the leading cases regarding unauthorized communications with a jury is Remmer v United States, 347 US 227; 74 S Ct 450; 98 L Ed 654 (1954). The Supreme Court held:
In a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties. The presumption is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant. [Id. at 229. Emphasis added.][ ]
One manner in which the prosecution can meet its burden of establishing that the instruction was harmless to the defendant is illustrated in United States v York, 830 F2d 885, 894 (CA 8, 1987). The jury posed the question, " '[c]an we find York guilty on Count n even though he may not have carried a gun?’ ” The court responded with, " '[i]n answer to your question I refer you to pages 31-33 of my instructions.’ ” The court held that the presumption of prejudice was overcome because, "[t]he court’s ex parte communication did nothing more than direct the jury to the neutral correct explanation of the law . . . .” Id. at 895. See also Black v Stephens, 662 F2d 181 (CA 3, 1981) (In response to a jury’s note requesting a definition of excessive force, the trial court merely recited the original instruction to which there was no objection. The court held that the recitation of the original charge was not improper.).
Ex parte administrative instructions are not generally held to be error requiring reversal unless it can be shown that there was a prejudicial effect upon a jury. Occasionally, a jury will request certain documents or information that may or may not have been admitted into evidence. When these requests occur, the trial court will ordinarily advise the jury regarding the availability of the information requested, or, if the subject matter of the request has been admitted into evidence, the court will comply with the request and send in the exhibits.
As amply illustrated above, case law has determined that it is error for the court to instruct or communicate with the jury in the absence of counsel and without notice to the defendant and counsel. In United States v Reynolds, 489 F2d 4, 8 (CA 6, 1973), the court held that the test for determining if a forbidden communication constituted error requiring reversal was whether " 'there is any reasonable possibility of prejudice.’ ”
In United States v Mesteth, 528 F2d 333 (CA 8, 1976), the jury sent two written requests to the judge. The first asked for the testimony of a witness to be read, and the second was an inquiry regarding whether the defendant was right- or left-handed. The judge responded by writing "no” and his signature on the bottom of each note. The court applied the Reynolds test to find that the communications were not "of an affirmative or substantive nature,” and held that "there was no reasonable possibility of prejudice, and the error, if any, was harmless.” Mesteth at 335.
Included within the category of administrative communication is an instruction which encourages a jury to continue its deliberations. In General Motors Corp v Walden, 406 F2d 606 (CA 10, 1969), after the jury had deliberated for some time, it sent a note to the court which read, " 'Your honor, we are sitting five to one, and apparently cannot get closer. We do not know what to do. Will you please instruct us?’ ” Id. at 609. Without consulting counsel the court responded, " '[t]he Court has received your note and advises that you are to continue to deliberate.’ ” Id. Within an hour the court informed counsel of the note and its response. However, the court did not divulge how the jury was divided. Neither counsel objected, moved for a mistrial, or requested further instructions. The court found that the statement by the trial court was "an administrative direction to the jury” and went on to hold, "the communication was both harmless to the parties and collateral to the issues submitted for determination by the jury.” Id. at 610.
Again, in Reazin v Blue Cross & Blue Shield of Kansas, Inc, 663 F Supp 1360 (D Kan, 1987), citing Acree v Minolta Corp, 748 F2d 1382, 1385 (CA 10, 1984), the court said that the response of a trial court to a jury request for evidence or to a question whether a jury should proceed is an administrative direction. In Aeree, the court held, "[notwithstanding this general [Fillippon] rule, it is not error if the instructions given to the jury are merely administrative directions rather than supplementary instructions.” Id. at 1385.
c
We are persuaded by our analysis of the preceding cases that the Michigan rule of automatic reversal does not serve the best interests of justice and, in many instances, it may very well serve to defeat justice. The Michigan rule was borne of the frustration of this Court with the failure of our state trial courts to cease the practice of entering the jury room while the jury is deliberating. Notwithstanding our decision today, the message bears repeating: ex parte communication with a deliberating jury is error under MCR 6.414(A); it has been, and continues to be discouraged by this Court.
However, as observed by the United States Supreme Court in Rushen v Spain, 464 US 114, 118-119; 104 S Ct 453; 78 L Ed 2d 267 (1983), reh den 465 US 1055 (1984):
[T]he Constitution ”does not require a new trial every time a juror has been placed in a potentially compromising situation . . . [because] it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote.” Smith v Phillips, 455 US 209, 217 [102 S Ct 940; 71 L Ed 2d 78] (1982). There is scarcely a lengthy trial in which one or more jurors do not have occasion to speak to the trial judge about something, whether it relates to a matter of personal comfort or to some aspect of the trial. The lower federal courts’ conclusion that an unrecorded ex parte communication between trial judge and juror can never be harmless error ignores these day-to-day realities of courtroom life and undermines society’s interest in the administration of criminal justice.
We are persuaded that this Court can no longer "ignore the day-to-day reality of courtroom life” in Michigan. While we are mindful of the right to a fair trial, we cannot ignore the interest of society in the administration of justice, and the interest of the state in the effective use of its judicial and law enforcement resources. Furthermore, we find merit in the concern for the victims of crime expressed by Judge Sawyer in his Lyons concurrence. We, too, believe that it is unconscionable that a victim must be put through another trial in futile reverence to a rule which fails to serve the interests of justice. Therefore, we draw from the reasoning of the Court of Appeals jurists who have urged us to review this issue, as well as from the reasoning of the federal courts, to modify the rule of automatic reversal.
The linchpin of the new rule centers on a showing of prejudice. For the purposes of this rule, we broadly define prejudice as " 'any reasonable possi bility of prejudice.’ ” A reviewing court must reverse the conviction if it determines that a defendant has been prejudiced by an ex parte communication with the jury.
We hold that before a reviewing court can make a determination regarding the prejudicial effect of an ex parte communication, it must first categorize the communication into one of three categories: substantive, administrative, or housekeeping. This wilJ necessarily lead to a decision regarding whether a party has demonstrated that the communication was prejudicial or that the communication lacked any reasonable prejudicial effect.
Substantive communication encompasses supplemental instruction on the law given by the trial court to a deliberating jury. A substantive communication carries a presumption of prejudice in favor of the aggrieved party regardless of whether an objection is raised. The presumption may only be rebutted by a firm and definite showing of an absence of prejudice. See Remmer, supra.
Administrative communications include instructions regarding the availability of certain pieces of evidence and instructions that encourage a jury to continue its deliberations. An administrative communication has no presumption of prejudice. The failure to object when made aware of the communication will be taken as evidence that the instruction was not prejudicial. Upon an objection, the burden lies with the nonobjecting party to demon strate that the communication lacked any prejudicial effect. Alternatively, a reviewing court, upon its own volition, may find that an instruction which encouraged a jury to continue its deliberations was prejudicial to the defendant because it violated the ABA Standard Jury Instruction 5.4(b), as adopted by this Court in Sullivan, supra.
Housekeeping communications are those which occur between a jury and a court officer regarding meal orders, rest room facilities, or matters consistent with general "housekeeping” needs that are unrelated in any way to the case being decided. A housekeeping communication carries the presumption of no prejudice. First, there must be an objection to the communication, and then the aggrieved party must make a firm and definite showing which effectively rebuts the presumption of no prejudice.
D
In France, the Court of Appeals found no error with regard to the typewritten definition of second-degree criminal sexual conduct which was sent to the jury because the note had received the prior approval of counsel. The Court followed the analysis in People v Anderson, 418 Mich 31; 340 NW2d 634 (1983), and held that no prejudice was shown with regard to the typewritten note. We agree.
We find that the typewritten note was a substantive communication because it was a supplemental instruction on the law. However, we hold that the presumption of prejudice was overcome by the consent of the defense counsel prior to the instruction being sent to the jury. As in Anderson, the judge expressed his intention to engage in an ex parte communication with the jury, and both parties consented to the communication after having been put on notice by the court. Id. Furthermore, the note merely recited the original instruction on second-degree criminal sexual conduct to which there was no objection when given to the jury at the close of trial. Black, supra. Therefore, we are unable to find any reasonable possibility of prejudice to the defendant as a result of the typewritten note.
The comments made by the bailiff in France were a result of requests made by the jury to review certain pieces of information, some that were taken into evidence and some that were not. In each instance, the judge either provided the jury with the evidence, or he instructed the jury that the information was unavailable because it was not entered into evidence. In Pannell, the communications were similar. We find that the ex parte instructions given in both cases come within the category of administrative communication. In each case, the defense counsel waived objection when he was made aware of the instructions, and we are unable to find any reasonable possibility of prejudice to the defendants.
With regard to the note written by the trial court in Pannell, we find that the judge merely required the jury to continue its deliberations. The court did not require or threaten to require the jury to deliberate for an unreasonable time or for unreasonable intervals. Therefore, we find no violation of the rule adopted in Sullivan.
III. CONCLUSION
A defendant is entitled to a fair trial, not a perfect one. Today, we have set forth rules which we believe acknowledge the realities of the courtroom while safeguarding the right of an individual to receive a fair trial. Reviewing courts must first categorize the nature of the communication—substantive, administrative, or housekeeping—and then analyze whether the communication carried any reasonable possibility of prejudice to the defendant. In doing so, we find that the communications which serve as the basis for each of the instant appeals did not result in any possible prejudicial effect to the defendant.
Thus, we reverse the decision of the Court of Appeals in France and remand the case to the Court of Appeals for consideration of the remaining issues which the defendant has raised on appeal. Conversely, we affirm the decision of the Court of Appeals in Pannell.
Brickley, Boyle, and Griffin, JJ., concurred with Riley, C.J.
See Zaitzeff v Raschke, 387 Mich 577; 198 NW2d 309 (1972), and People v Cain, 409 Mich 858; 294 NW2d 692 (1980) (peremptory order adopting the dissent of Justice Cavanagh in People v Cain, 94 Mich App 644, 647-648; 288 NW2d 465 [1980]).
MCR 6.414(A) provides:
Court’s Responsibility. The trial court must control the proceedings during trial, limit the evidence and arguments to relevant and proper matters, and take appropriate steps to ensure that the jurors will not be exposed to information or influences that might affect their ability to render an impartial verdict on the evidence presented in court. The court may not communicate with the jury or any juror pertaining to the case without notifying the parties and permitting them to be present. The court must ensure that all communications pertaining to the case between the court and the jury or any juror are made a part of the record.
The rule that we adopt today will apply to both criminal and civil cases.
The following three paragraphs provide examples of what may constitute substantive, administrative, or housekeeping communications. The examples included within each category are not intended to be an exclusive list of the communications that may be included within each category. We leave the classification of communications not enumerated in this opinion to be decided as they arise in future cases.
The current version of this jury instruction is found in 3 ABA Standards for Criminal Justice (2d ed), Standard 15-4.4(b).
MCL 750.529; MSA 28.797.
MCL 750.110; MSA 28.305.
MCL 750.520c(l)(c); MSA 28.788(3)(l)(c).
The Court of Appeals held that there was no error regarding the typewritten definition of criminal sexual conduct that was given to the jury, citing People v Anderson, 418 Mich 31; 340 NW2d 634 (1983).
The reversal was based solely on the comments made by the bailiff to the jury.
"Although we have some concern for this automatic reversal rule, stare decisis requires our adherence and reversal in the instant case.” People v France, unpublished opinion per curiam of the Court of Appeals, decided August 18, 1988 (Docket No. 89986).
432 Mich 920 (1989).
MCL 750.520b(l)(f); MSA 28.788(2)(l)(f).
MCL 750.520d(l)(b); MSA 28.788(4)(l)(b).
During trial, defense counsel objected to the admissibility of the hammers because they were not the actual hammers used in the perpetration of the crime, merely similar to those actually used. This objection was overruled and the hammers were admitted into evidence.
Thursday, November 14, 1985—12:20 p.m.
(Proceedings reconvened; out of the presence of jury)
The Court: Mr. Belcoure, Ms. Donahue, we have received some communications from the jury during the day. At or about 10:38 the jury wrote a note which says, We can not reach an agreement. About 10:38, the Court wrote a note to the jury saying, Continue your deliberations, with my initials on it, with the instruction that that be shown to the jury and retrieved so that it could be put in the Court file, which was done.
At 12:12 the jury wrote a note which says, May we see the hammers? Thank you. I instructed the bailiff to give the jurors Exhibits 10 and 10-A or 10-B, rather. Strike that. 10, 10-A, and 10-B, which are the hammers.
This was the same testimony that, on the previous day, defense counsel agreed should not be given to the jury.
Project on Minimum Standards for Criminal Justice, Standards Relating to Trial by Jury, Standard 5.4, Length of deliberations, deadlocked jury,
432 Mich 920 (1989).
Over the years, variations of this issue continued to appear in this Court. See, for instance, People v Mullane, 256 Mich 54, 59-60; 239 NW 282 (1931), People v Chambers, 279 Mich 73, 79-81; 271 NW 556 (1937), People v Pizzino, 313 Mich 97, 107-108; 20 NW2d 824 (1945), and People v Nick, 360 Mich 219; 103 NW2d 435 (1960).
Bunda v Hardwick, 376 Mich 640, 665-668, 673-674; 138 NW2d 305 (1965), DeCorte v New York Central R Co, 377 Mich 317, 331-332, 333-357, 363; 140 NW2d 479 (1966), and People v Schram, 378 Mich 145, 150-154, 157-166; 142 NW2d 662 (1966).
The attorneys had, for some reason, chosen to waive being present when the jury returned its verdict. Apparently the attorneys were also absent when the jury returned to the courtroom to discuss its request for a rereading of the testimony.
We believe the exact language of Kent, supra at 791-792, bears repeating in light of our decision today:
Broad rules of law designed to address especially egregious situations on occasion become petrified without additional analysis over periods of time. It makes little sense to have a rule so absolute that the potential result is reversal of an otherwise errorless trial because of am insignificant contact with a jury which does not even raise the concern of those who were present during the proceedings. Those who promulgate such rules would do well to consider the consequences of reversal of convictions where, despite clear instructions to the contrary, a juror suddenly appears at a secretary’s desk and makes a request for water or to call a babysitter, or a juror knocks at the door and verbally requests certain exhibits, or a note is sent to a judge indicating how the voting stands. Is a court officer, when taking a jury to a meal, prohibited from verbally indicating the spending limits?
Little enough confidence exists today in our institutions without further perpetuating its erosion by an automatic rule applied to court personnel who are under oath to obey the law where nothing more is revealed than an incidental contact unrelated to the case itself. The judicial system must demonstrate some confidence in those who are entrusted with its well-being and, in fact, have little interest in the outcome of a matter, when there is no showing of prejudice (or, after scrutiny, even a hint of such).
The full excerpt from which this quotation is taken, reads:
I find it regrettable that the citizens’ tax dollars must be wasted on giving a defendant another trial when he has received a fair trial the first time. I find it unconscionable that the victim must be put through another trial in futile reverence to a rule which serves no useful purpose. It is little wonder that victims may be reluctant to come forward when our justice system places upon them the burdens of following such absurd rules. As Judge Harrison pointed out, such results as we are compelled to reach today only serve to deepen the erosion of public confidence in our judiciary. Therefore, while I am constrained to vote for reversal, I urge the Supreme Court to reverse us and restore some common sense to the system.
Remmer involved an unnamed person that had remarked to a juror during trial that he could profit by bringing in a verdict favorable to the defendant. Notwithstanding this distinction, we believe that the nature of this type of ex parte jury contact must be classified as substantive and that the Supreme Court’s treatment of the communication is relevant to our analysis here.
In United States v Pennell, 737 F2d 521 (CA 6, 1984), cert den 469 US 1158 (1985), the court held that the Supreme Court’s subsequent opinion in Smith v Phillips, 455 US 209; 102 S Ct 940; 71 L Ed 2d 78 (1982), reinterpreted Remmer so as to shift the burden of showing prejudice to the defendant. However, no other federal appellate court has departed from the Remmer standard for evaluating the effect of an improper contact. United States v Butler, 262 US App DC 129, 133, n 2; 822 F2d 1191 (1987).
In Gleeson v Wood, 321 F Supp 118 (ED Pa, 1970), the court held that the failure to make a timely objection to a substantive ex parte instruction requested by the jury resulted in a waiver of the objection and precluded the assertion of it at a later time.
The foreman asked the bailiff if the jury could have the height of the defendant. The bailiff relayed the question to the judge’s secretary who in turn repeated it to the judge. The judge used the same communication system in reverse to tell the jury that it could not have any additional information. The court held that the communication did not create a reasonable possibility of prejudice.
Aff’d 899 F2d 951 (CA 10, 1990).
In Aeree, supra at 1384, the jury sent two notes to the trial court during its deliberations. Without notifying either counsel of the questions, the judge responded as follows:
Question: "Should Judge O’Connor have included consideration of loss of car for 9 months in instruction #15?”
Response: "Loss of car was not included because the court ruled that he was not entitled to damage for this item.”
Question: "We seem to be missing the police report re: machines. Is that point relevant to our deliberations?”
Response: "A police report was referred to, but was not offered or admitted into evidence.”
The court held that the responses of the trial judge did not constitute error because "[t]he trial court’s explanation did not instruct the jury on what the law is or on how to apply the law to the evidence. Nor did it instruct the jury on how to conduct itself. It merely gave the jury collateral information that did not affect its deliberation.” Id. at 1385.
In Pannell, the victim was raped and brutalized by three men. It is unthinkable to have her relive the nightmare by requiring a new trial merely because there were administrative communications with the jury, communications which we firmly believe did not have any reasonable possibility of prejudice to the defendant.
Reynolds, supra at 8.
See n 4.
The prosecution may rebut the presumption of prejudice with a showing that the instruction was merely a recitation of an instruction originally given without objection, and that it was placed on the record. See Black, supra. In addition, the presumption of prejudice would be overcome with a showing that the trial court had expressed its intent to communicate with the jury and counsel had given prior consent to the communication, as well as to the substance of the instruction. Anderson, supra.
Here we depart somewhat from the Aeree rule. In order to best safeguard the defendant’s right to a fair trial when balancing it against the state’s interest in effective use of its judicial and law enforcement resources, we believe that the burden of persuasion should remain with the prosecution to show a lack of prejudicial effect. However, we reiterate that there is no presumption of prejudice to overcome with regard to administrative communications.
See United States v Dinorscio, 661 F Supp 1041, 1045 (D NJ, 1987), which held that the Remmer rule (the burden is on the government to prove that the presumptive prejudice was harmless) only shifts the burden to the government "if the improper contact involves the matter pending before the jury”—the guilt or innocence of the defendant.
See n 34.
Delaware v Van Arsdall, 475 US 673, 681; 106 S Ct 1431; 89 L Ed 2d 674 (1986); Brown v United States, 411 US 223, 231-232; 93 S Ct 1565; 36 L Ed 2d 208 (1973); Bruton v United States, 391 US 123, 135; 88 S Ct 1620; 20 L Ed 2d 476 (1968). | [
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McGrath, C. J.
This is an action upon a fire insurance policy upon plaintiff’s “engines, boilers, pumps, and connections, including smokestack, fire fronts, breeching, and tools, all while contained in frame pump house.” It is a Michigan standard policy, and contains the following provisions:
“This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if * * * the hazard be increased by any means within the control or knowledge of the insured; * * * or if illuminating gas or vapor be generated in the described building (or adjacent thereto) for use therein; or if (any usage or custom of trade or manufacture to the contrary notwithstanding) there be kept, used, or allowed on the above-described premises benzine, benzole, * * * gasoline, * * * naphtha, * * * or petroleum, or any of its products, of greater inflammability than kerosene oil of the United States standard (which last may be used for lights, and kept for sale, according to law, but in quantities not exceeding five barrels, provided it be drawn and lamps filled by day-light, or at a distance of not less than ten feet from artificial light).”
This case turns upon the construction of these provisions. The policy was dated November 29, 1890, at which time plaintiff was using coal as fuel under its-boilers. In May, 1891, plaintiff began the use of fuel oil, or “ reduced oil,” which is the residuum from the distillation of petroleum. In the process of distillation the lighter parts of the crude petroleum, such as naphtha and illuminating oils, are eliminated. The chemists by whom the oil used was subjected to an analytical examination testified that—
■ “This oil has a flash point 52 degrees safer than kerosene oil, standard of the Michigan State law. It is much safer, much less combustible, and much less explosive by formation of combustible vapor, than current kerosene oil which conforms to legal standards in any part of the United States, by laws of the several states and of the general government. In gravity it is 15 commercial degrees, or 0.077 of the water unit, heavier than the common kerosene of safe, legal grades in the average gravity of such grades.”
Other testimony tended to show that it was less inflammable than crude petroleum, and less so than kerosene. This testimony is undisputed. The reduced oil was fed to the fire-box by its own and gravity pressure from an 80-gallon iron tank, and was sprayed within the fire-box by superheated steam. It is claimed, too, that coal was being-used under one of the boilers, and reduced oil under another, and that both breechings led into one smokestack. The fire caught in the stack, and was simply a burn-out, and the only explanation given is that the soot caught fire.
The court instructed the jury that the policy did not prohibit the use of reduced oil, and that the only question for their consideration was as to whether the use and the manner of the use increased the hazard, and that, if they found that the use and the manner of the use materially increased the hazard, their verdict should be for the defendant; otherwise they should find a verdict for plaintiff. The defendant has nothing to complain of in this instruction. The reduced oil used, under the testimony, came within the products of petroleum expressly excepted from the prohibitions contained in the policy. The use being-excepted, the usual and ordinary methods of such use were included in the exception.
It is suggested that, while the policy refers to a United States standard, there is no knoAvn United States standard, and that the Michigan standard has been reduced, and was reduced at the time of the trial; but the testimony is that the reduced oil used was much less explosive and much less combustible than current kerosene oil which conforms to legal standards in any part of the United States, by laws of tbe several states and of tbe general government.
Objection is made to the use by the court of the language “materially increased.” “Materially ” is defined as “substantially, essentially,.really.” The objection is without force.
The case was submitted to the jury upon the theory most favorable to defendant, and the judgment is affirmed.
The other Justices concurred. | [
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] |
McGrath, C. J.
Respondent was convicted of selling liquor to a minor. In the complaint made to the justice the name of the county was left blank in the venue, but the complaint was made before a justice of the peace in the city of Hillsdale, and alleged the offense to have been committed in that city. Respondent relies upon People v. Gregory, 30 Mich. 371; but in that case there was the further objection that no mention was made of the year in which the .offense was committed. In the later case of People v. Telford, 56 Mich. 541, the Court held that courts take judicial notice of municipalities within their jurisdiction, and that the justice was warranted in taking such notice that the village of Dansville is in Ingham county.. In each of those cases the offense was triable by the justice. "When a criminal complaint concerns an offense triable by a justice of the peace, the statute requires that it shall-be in writing, and it must set forth and describe the alleged offense fully and correctly, and must contain all the essentials of an information. But in a complaint not triable by a justice no such formality or particularity is necessary. In such case the statute does not require either the complaint or the examination of the complainant or the witnesses produced by him to be reduced to writing. People v. Clark, 33 Mich. 120; People v. Lynch, 29 Id. 274. The examination which precedes the arrest is not even confined to any particular offense. As is said in Turner v. People, 33 Mich. 363, the law does not assume that the complaint must fix and control the after-proceedings. The examination which immediately follows, and is required as a consequence of the complaint, is the proceeding which the statute looks upon as the one to guide the magistrate in deciding whether the warrant should issue, and for what. So far the proceeding is ex parte. The information is not predicated upon the complaint or the examination upon which the warrant issues, but it is presumed to have been framed with reference to the facts disclosed at the examination which succeeds the arrest. The objections to the complaint were therefore withoitt force.
The warrant, in describing the offense, alleged that respondent—
“ Did then and there unlawfully sell, furnish, and deliver to one Albert R. Rogers, who was then and there a minor under the age of twenty-one years, to wit, of the age of 11 years, a large quantity of, to wit, spirituous and intoxicating liquors, to wit, beer.”
It is insisted that the material fact to be proved was the sale of spirituous and intoxicating liquors to a minor, and that the warrant is bad because of the use of the videlicet preceding the word “spirituous.” This isa pure technicality. The offense need not be stated as in an indictment. It is enough if the warrant informs the accused of the nature of the accusation, if it recites the substance of the offense, and describes it with such certainty as to show that it is within the jurisdiction of the officer to take bail. Haskins v. Ralston, 69 Mich. 63.
Dr. Werner, a physician, was called for the defense, and testified that he had been called by the boy's mother to visit him while he was recovering from the effects of the beer; that his mother told him that she had been in the habit of sending the boy’to get beer when she had a hard washing to do; that she claimed that the boy got the beer on the south side of the railroad; that he saw the boy the next morning; that he asked the boy where he got the beer, and he said, “At a saloon on the south side of the railroad;” that respondent's saloon is on the north side. The first question asked upon cross-examination was: “ You are in the habit of drinking, are you not?” This question was objected to as incompetent and irrelevant. The objection was overruled, and an exception taken. “ Answer. I am in the habit of drinking beer when I want it.”
One O'Meara, called for the defense, stated that the boy's mother had pointed out the pail that the boy had, and said that she had smelled of it, and it smelled like cider; that he, the witness, had smelled of it, and that he could not say what had been in it. On cross-examination, the first question asked was: “You are in' the habit of drinking a good deal? A. Not very heavy; no, sir. Q. Been several times arrested for being drunk? A. No, sir.” The boy had testified that respondent in person sold him the beer. Respondent was sworn in his own behalf. He denied that he had sold the boy the beer; said that he had a talk with the boy, and that the boy claimed that the bartender let him have the beer.
In presenting the case to the jury the prosecuting attorney, referring to respondent, said: “You know what to expect of a man engaged with such a thing. You, gentlemen, understand this saloon business, — what to expect of them.” Counsel for respondent excepted. By the Prosecuting Attorney: “I have a right to reply, and state my theory of how much his evidence may be believed, or any other man's.” Counsel for respondent excepted. By the ‘Court: “If there is any such statement made, you can take an exception." Prosecuting Attorney (to the jury): “You would not expect that Mr. Kahler or any other man coming upon the stand to testify, and charged with a crime, would admit it." Exception by respondent's ■counsel. Prosecuting Attorney (to the jury): “Dr. Werner has admitted that he drinks, and I don't know that a man who drinks is any more to be believed than the man who sells the liquor." Counsel for respondent called the court's attention to the language used, whereupon the ■court said: “If there was any such language used, you may take an exception."
The court, in charging the jury, used this language:
“ There has been a great deal said here in argument by ■counsel, and some things stated which are not in evidence; and, in so far as you find such, they should be disregarded. The question is not here what kind of a man the defend.ant is, — whether he, contributes to every public object, whether he be a man who takes care of his family, whether the women of this town are behind the prosecution; there is nothing in the case upon which to found any of these things and similar things said before you. They are not for your consideration. Your verdict is to be ■founded upon the evidence in the case. * * * The credit of the witnesses is for you. You are to measure the credit in view of all the circumstances which .appear in the progress of the trial which may aid you in coming to your conclusion, having the right to disregard the testimony of any witness if you find any good reason developed in the trial for so doing. You should not set aside the testimony of any witness unless you believe there is good reason for so doing."
While this language, abstractly considered, embodies the law, yet the use of it in connection with the testimony erroneously admitted, and the remarks of the prosecuting attorney, was calculated to mislead the jury to defendant's prejudice. Persons accused of crime are entitled to a fair .trial. Passion or prejudice should not be allowed to enter into its conduct. The testimony of parties accused of crime is not necessarily to be disregarded, nor is the testimony of a witness to be disbelieved because he is engaged in the saloon business, nor is a witness to be discredited because he is in the habit of drinking.
The court erred in allowing the question put to the physician on cross-examination. Admitting the testimony under objection must have convinced the jury that the inquiry was material as bearing upon the credibility of the witness. It could have no other purpose. The error was repeated upon the cross-examination of the witness O’Meara.
The court erred in permitting the prosecuting attorney to use the language complained of without rebuke, and in failing to instruct the jury properly in respect thereto. The court did instruct the jury to disregard the language used by the respondent’s counsel, but neglected to refer to that used by the prosecuting attorney, and subsequently instructed the jury that they might disregard the testimony of any witness if they found any good reason developed on the trial for so doing. Among the reasons which developed on the trial, two of the respondent’s witnesses were men that were in the habit of drinking; the defendant was a saloon-keeper; and the prosecuting officer had said to them, under objection, which the court disregarded, that a man accused of crime would not admit it; that a saloon-keeper was not to be believed; and that a witness who drank was entitled to no better credit than the saloon-keeper; and the court failed to instruct the jury that these were not good reasons.
The conviction must be set aside, and a new trial had.
Long and Durand, JJ., concurred with McGrath, C. J. | [
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] |
Grant, J.
Plaintiff’s decedent, James Enright, was in tbe employ of tbe defendant as freight conductor. On the night of the 27th of February, 1890, he was in charge of a freight train going south-easterly over its road. He had stopped his train on the main track at Ithaca. While it was standing there, early the next morning, and while it was dark, a freight train, going in the same direction, ran into it, and killed Mr. Enright. Plaintiff recovered verdict and judgment.
The negligence claimed is—
“That the train dispatcher directed Enright to stop his train, which was going south-easterly, at Ithaca, and io wait there for a train going in the opposite direction to pass; and then directed a train following Enright’s, and going in the same direction, to run straight through to Owosso, a point beyond Ithaca, well knowing that, if the conductor of the following train obeyed his train order, his train must collide with Enright’s train; that the following train did run into the rear end of Enright’s train at Ithaca, and Enright was killed while sitting in the caboose of his train.”
Eule 97 of the defendant governs the management of freight trains in their approach to stations, and is furnished to its conductors and engineers for their guidance. It reads as follows:
“The track between extreme switches at any station will be considered station limits. Freight trains may use main track within station limits at any station up to within ten minutes of the time of a passenger train. After that time they will be governed by rule 99. Freight trains can use the main track between extreme switches at any station, regardless of trains of the same or inferior class. ■ Freight trains will approach all stations under full control, expecting to find trains using main tracks within station limits.”
Enright and his fellow-servants on his train had the right to rely upon the observation of this rule by those in charge of the train following them. That he did rely upon its observance, and consider himself in a place of safety. is evidenced by tbe fact that he placed no torpedoes upon the track in his rear, nor gave any other signal to any train that might approach. He knew that this very train was behind, and would soon follow. The two trains were together at Shepherd, about 19 miles distant from Ithaca, and Enright conversed with the engineer of the other train. That engineer told him that it was a very bad night; that he was going to wait there 50 minutes or an hour after Enright left, before he pulled out to follow him; and said to him, “If you do stop anywhere to-night on the road, give me some show;” to which Enright replied, “I will.” Enright was 29 years old, and had been engaged in railroad service for 14 years, and it is conceded that both he and those in charge of the following train had knowledge of rule 97. Those in charge of freight trains are not notified by the defendant where trains which are ahead of them will stop. The engineer of the following train testified that he had been in the employ of the defendant for 10 years, and that he had never received warning of a train which was running ahead of him, or the same way he was running. Trainmen are expected to rely upon and observe this rule. The requirement always to observe it leaves no excuse for violating it.
The track enters Ithaca on a down grade, and over a sharp curve. The night was stormy, and the track covered with ice. The engineer did not approach the station with his train under control, and when he saw the rear of Enright’s train he could not stop his own in time to avoid the accident. Enright’s train was drawn by engine No. 23, and the following train by engine No. 18. Both trains were extras. Coming from the opposite direction were engines 46, 88, 29, and 28. These trains were all running on orders from the train dispatcher. No. 18 was ordered to run extra from Clare to Owosso. The only difficulty with any of these orders is in that of No. 59, which was delivered by tlie telegraph operator to Enright at St. Louis. It is claimed by the plaintiff that this order provided for a meeting point for* engine No. 29, while defendant insists that it provided for a meeting point for No. 28. It is furthermore claimed by the plaintiff that Enright, reading this order as providing a place to meet No. 29, was acting in obedience thereto in stopping at Ithaca.
From the view we take of the case, it is unnecessary to determine the facts in regard to this order. Whether it was the fault of the dispatcher, or of the telegraph operator in copying, or whether the figures “29” were first written in the order, and then changed to “28” before delivered to Enright, are questions we need not discuss. Nor is it necessary to determine whether the dispatcher and telegrapher and Enright were fellow-servants. The order to the trainmen of No. 18 did not authorize or direct that that train be run straight through from Clare to Owosso without regard to the freight train that was ahead of it. It conveyed no information that the track was clear for them between Clare and Owosso, nor was it so understood by them. All the trainmen who received that order understood that they were to execute it in accordance with rule 97, which directed them to approach stations expecting to find trains using the main track within station limits; and that the absolute requirement of the company was to keep the train under control. Their duty in this respect could have been no other or different if they had had j)ositive knowledge that Enright’s train was standing there. The learned counsel for the plaintiff recognized this as the rule of law by his attempt to show that the engineer of train No. 18 was doing his best to comply with rule 97. It is unnecessary to repeat the evidence of this engineer to show that he was not complying with the rule. He does not pretend that he could not have controlled his train if he had approached at the proper speed. On the contrary, he said that if he had known that the train was standing there he did not think he would hare run into it. He knew that Enright's train was ahead, but he said he did not expect to find it at Ithaca. The neglect of this engineer thus to control his train was the proximate cause of the accident.
It is apparent that it is for the interest and safety of all persons interested that a rule like that in question should be one of universal application. It is far more certain to secure the protection of the company's employés than would be a rule requiring the train dispatcher to notify each train of the position of those going in the same direction. If the latter were the rule, the opportunity would be left open for just such mistakes as the one claimed to have been made in the present case. By observing the other, absolute safety is secured, except in those cases where some unforeseen cause may place the train beyond the control of those in charge.
It is conceded that the engineer of train No. 18 and En-right were fellow-servants, that he was competent, and that his train was properly equipped. The circuit judge should have directed a verdict for the defendant.
Judgment reversed, and new trial ordered.
McGrath, C. J., Long and Montgomery, JJ., concurred.
Durand, J., did not sit. | [
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] |
Per Curiam.
This is a motion for retaxation of costs. They Avere taxed by the clerk of this Court at the sum of $579.05, although the original bill as presented for taxation amounted to the sum of $753.70. The bill is made up largely of the cost of printing the record, copy procured for printing, and stenographer’s fees. Both parties move for retaxation.
We think, as said in the opinion filed in the case, that the record could have been made up in 100 pages instead of 700. The court below, however, certified that all the evidence given on the trial had been incorporated in the bill of exceptions at the request of counsel for defendant. Were it not for this certificate, we should limit the cost of printing the record to 100 pages, but in view of this certificate we shall only deduct what it appears to us that the appellant has unnecessarily incorporated into it. The record will be cut down to 550 pages, and that number-taxed at 50 cents per page, which appears to be the price at which it could be printed. The cost of procuring the copy to print from it is agreed should be allowed at $10. The stenographer’s fees of $140 are charged, which is 8 cents per folio for 1,750 folios. Of this amount it appears that only $100 was paid. This item will be reduced, therefore, to the amount paid, $100 With these reductions, the taxed bill of costs amounts to $461.50, and will be relaxed at that sum.
It appears that a previous motion had been made in this Court to vacate the order for costs in favor of plaintiff, and in disposing of that motion counsel were undoubtedly led to believe that the matter of 'costs could be disposed of on motion for retaxation in the form of an appeal from the clerk’s taxation. We do not approve of this practice, as the matter should be disposed of when the case is heard, so far as any question may be raised relating to matters raised here, as was said in Van Deusen v. Newcomer, 40 Mich. 525; but, in view of the error into which counsel were led in the former motion, we have felt disposed to settle the question in this way. The same course was taken in Roby Lumber Co. v. Gray, 73 Mich. 363, and certain deductions made on motion for retaxation from the amount of the stenographer’s fees, printing record, etc.
Defendant will recover the costs of this motion.
Upon February 8, 1893, upon motion of plaintiff, this allowance was increased by $40, such amount appearing to have been paid. | [
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Mobse, C. J.
Section 7, chap. 5, of the charter of the village of Reading provides that—
“ The common council shall have power to grant licenses to authorize persons to exercise the business of tavern-keeper, inn-holder, common victualer, or saloon-keeper, within said village, and may impose such fees, to be paid into the village treasury on the granting of such license, as they may see fit; Provided, that no license shall be granted for the sale of spirituous liquors or intoxicating drinks.”
The common council adopted, to take effect May 1, 1879, an ordinance as- follows:
. “ An ordinance relative to saloons, common victualers, taverns, and other places.
“It is hereby ordained by the common council of the village of Reading, Hillsdale county, State of Michigan, that any person who shall keep a billiard saloon, common victualer saloon, eating saloon, tavern, or other place where spirituous or intoxicating liquors, wine, or beer are sold, furnished, or given away, within the corporate limits of said village of Reading, shall pay a license fee of five hundred dollars per year; and any person who shall assume to exercise such business or occupation, without having first obtained such license and paying the said five hundred dollars, shall forfeit and pay for each and every day he shall so exercise such business or occupation the sum of two (2) dollars, to be recovered by action of debt in the corporate name of said village, together with the cost of prosecution, before any justice of the peace in said county. This shall not be construed to include druggists or apothecaries authorized to sell for medicinal purposes. And it is hereby ordained by said common council of said village that section No. 2 of by-law No. 13 of said village is hereby repealed.”
The plaintiff was a resident of the village, and knew that this ordinance was in existence when he opened a saloon in 1883. This suit is brought to recover back from the village moneys paid under said ordinance from 1883 to 1887, inclusive, claiming that the ordinance was illegal and void, and that the money was paid without consideration, and under duress. During this time plaintiff complied with the State law, and was therefore duly authorized to carry on the business of selling intoxicating liquors under such law. The moneys sought to be recovered in this action were paid to the village marshal and other officers of the defendant. For these payments plaintiff received receipts in the shape of licenses signed by the president, recorder, and marshal. None of these officers ever made any threats of prosecution to plaintiff in case he did not pay; but plaintiff testifies that one Martin L. Bently, who was the village attorney, threatened him with prosecution if he did not pay the said license tax, and said to him that it would cost him more than to pay the license, and that one Weaver had been so prosecuted; that these threats induced him to pay, and that the payments were made under protest, either verbal or written. No written protests were offered in evidence. The ordinance was plainly void, but the circuit judge directed a verdict for tlje defendant, presumably upon the theory that the payments were voluntary.
The contention of the plaintiff is that the case is ruled by Cribbs v. Sowle, 87 Mich. 340, and that the facts, as testified to by the plaintiff, were sufficient to amount to duress under the opinion of the Court in that ease; and that, in any event, the question whether the payment was voluntary should have been submitted to the jury. There was no testimony offered by the defendant. The question whether the facts shown — which facts were undisputed— constituted an involuntary payment was one of law, and not of fact, and therefore for the court to decide. The court was not in error. This case is plainly distinguishable from Cribbs v. Sowle, supra, and the cases there cited. The plaintiff is not shown to have been either aged, or infirm in intellect, or ignorant of the law or of his rights under it. The case falls clearly within the following decisions of this Court: First National Bank v. Watkins, 21 Mich. 483; Nickodemus v. East Saginaw, 25 Id. 456; City of Detroit v. Martin, 34 Id. 170.
The judgment below is affirmed, with costs.
The other Justices concurred. | [
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Montgomery, J.
Plaintiff, as administratrix of her deceased husband, Thomas Brennan, sued to recover for damages resulting from her husband’s death, which it is alleged was caused by the fault of the defendant. The deceased was a brakeman, employed on the defendant’s railroad, and his death was caused by an injury received while attempting to couple two cars loaded with logs. The declaration averred that the defendant was in fault in so loading the cars that logs were allowed to project' over the ends, making it unnecessarily dangerous for the brakeman, and that this condition was known to the defendant, and not known to the brakeman. The testimony tended to show that the deceased was on his second or third trip on the division on which he was killed; that on a siding north of the station at West Bay City the conductor of the train directed the trainmen, consisting of the engineer, fireman, deceased, and another brakeman, named Ward well, to back into the yard, and get certain cars loaded with logs, while the conductor stepped into the office to get his bills. It was dark at the time, and the deceased had a lantern with him. The logs were loaded several tiers high, and projected over the ends of the cars at various lengths, the ■middle and upper tiers projecting out further than the lower tier. The testimony tended to show that there was projecting over the end of the lower outside log, next tó the side on which deceased stood, a sliver, about six inches long, about six inches wide at the base, and one and a half inches thick, and tapering to a point.
It is the theory of the plaintiff that, after deceased .•attempted to make the coupling by reaching between the ■ends of the logs, this projecting sliver caught him as he was attempting to rise, and that before- he could extricate himself he received the injury which resulted in his immediate death. The defendant offered evidence tending to show that the deceased had been cautioned against the danger of coupling cars loaded with logs, and offered in -evidence a rule of the company, which reads as follows:
“In the loading of lumber, rails, iron, and other articles -of like nature, it will frequently happen that the same will project over the ends of fiat, coal, or box cars. The .attention of trainmen and switchmen is directed to this fact, and they are required to notice the manner in which such cars are loaded before attempting to couple or handle the same.”
The rule also contained the following provision:
“ Coupling by hands is strictly forbidden in all cases, and ■each yard master, switchman, brakeman, or other employé who may be expected to couple cars is required at all times to use a stick for that purpose. Sticks will be furnished on application to the train master of the ■division.”
. It appeared by a writing over the signature of the ■deceased' that he was furnished with a copy of the printed rules and regulations of the company upon entering the ■company’s employ, with which he promised to make himself familiar, and to be governed thereby; and also that lie had read over, in the presence of the assistant train master, rule 29, being the one above quoted.
. It appeared by the testimony that the deceased was not using the stick furnished him by the company at the time of the injury.
The circuit judge directed a verdict for the defendant. We think this ruling was correct, under the holdings of this Court in Mich. Cent. R. R. Co. v. Smithson, 45 Mich. 212, and Hathaway v. Railroad Co., 51 Id. 253. See, also, Day v. Railway Co., 42 Mich. 523. The deceased had notice, not only from his observation, but also from the statement contained in this rule as to the custom of the company, that the company was transporting cars loaded with logs which projected over the end, making the service more or less dangerous. The case in this respect differs from Dewey v. Railway Co., 52 N. W. Rep. 942.
If it be assumed that it was the duty of the company to provide that the cars transported over its road should be loaded so as to render it safe for a brakeman to step in between the cars and make a coupling, the rule in question was notice to the deceased that the defendant company did not perform that duty, and yet he voluntarily entered upon the employment after having this notice. We fail to see on what principle it can be said that the company was negligent in permitting cars to be so loaded, and that it was not negligent for a brakeman to engage voluntarily in the company’s service knowing that this duty was not performed.
If we are correct in this conclusion, it is not important whether the testimony of the conductor, Kane, and the brakeman, Wardwell, was competent as to conversations with the deceased the evening before the accident. They gave testimony tending to show that they cautioned him about coupling cars loaded with logs. This testimony is objected to, and is claimed to have been inadmissible under the provision of 3 How. Stat. § 7545, which reads:
“Nor, when any suit or proceeding is prosecuted or defended by the heirs, assigns, devisees, legatees, or personal representatives of a deceased person against a corporation or its assigns, shall any person who is, or has been, an officer or agent of any such corporation be allowed to testify at all in relation to matters which, if true, must have been equally within the knowledge of such deceased person.”
Were these witnesses officers or agents of the corporation, within the meaning of this statute? It is clear that they were not officers of the corporation. In what sense is the word “agent” employed? We think this section must be held to include only those who are authorized, in the matter with reference to which testimony is given, to act for the company. It is not claimed that in the conversation alluded to either Kane or Wardwell represented the company, or had authority to speak for the company. We think no error was committed in receiving their testimony.
The judgment should be affirmed, with costs.
The other Justices concurred.
Opinion withheld from publication officially, pending rehearing.
How. Stat. § 7545, as amended by Act No. 139, Laws of 1885. | [
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] |
McG-rath, O. J.
This is a bill filed to enjoin the con. struction of an electric street railway with overhead wires and poles in Packard street in the city of Ann Arbor. The street is 66 feet wide and the roadway 34 feet in width.
There is nothing in the record which distinguishes the present case from Detroit City Railway v. Mills, 85 Mich. 634, and that case, with People v. Railway Co., 92 Id. 522, must be regarded as the settled law of this State.
Complainant Bafiensberger alleges special injury to her property, which is a corner lot, by reason of the lengthening of the curve from Main street into Packard, but her remedy is at law.
The decree of the court below, dismissing complainants’ bill, is therefore affirmed, with costs to defendant.
The other Justices concurred. | [
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McGrath, J.
These are proceedings for the opening of the boulevard in the city of Detroit, over respondents’ rights of way, under Act No. 388, Local Acts of 1889. Precisely the same questions are raised as were passed upon in Commissioners, etc., v. Michigan Cent. R. R. Co. et al., 90 Mich. 385, except that here it is insisted that the opening is across lands which are used by the railroad companies for yard purposes. It clearly appears from the record that all of the tracks in use by respondents within the lines of the proposed boulevard, and for some distance both north and south, are within the original rights of way of respondents. The only basis for the claim that the land sought to be condemned is railroad yard land is the testimony, upon cross-examination, of petitioner’s civil engineer, who says that it is a railroad yard. The yard master called by respondents said: “We call the Grand Trunk Railroad Y tracks the “ ‘Yard.’ ” This “Y,” so-called, is the main line upon which every train to and from the city runs. The main track of the Detroit, Grand Haven & Milwaukee road is upon the right of way which it is proposed to cross. In the motions made to dismiss the petitions in both cases respondents allege, upon oath, that the lands sought to be taken “are portions of the rights of way of said respondents, occupied by their main and side tracks.” The yard master says, further: “Trombly and Milwaukee avenues cross the track. These avenues interfere ivith switching, the same as any grade crossing, and they take up the storage room for cars.”
It cannot be' contended that a railroad company can so convert its right of way into store room for its cars, and call it “a yard,” and thus prevent a street from crossing its right 'of way. It cannot be that a railroad company can condemn a right of way through the city or other property, and then so convert' such right of way, or so denominate it, as to prevent the owners of the property through which that right of way is condemned from obtaining streets across the same. No such use or purpose was contemplated when the right of way was secured.
It is notorious that every street, from Tenth to the westerly limits of the city, is. crossed by the Michigan Central, and upon every one of these crossings side tracks have been added, until every foot of space upon the right of way of the company is covered. The Lake Shore & Michigan Southern Railway, the Grand Trunk Railroad, and the Detroit & Bay City Railroad maintain separate tracks and side tracks, with adjoining rights of way, from and across the boulevard on the west, northeasterly to the northerly limits of the city, at a point above the land in question, crossing Michigan avenue, Grand River avenue, Woodward avenue, and again crossing the boulevard and more than a score of other streets. The Detroit, Grand Haven & Milwaukee maintains a main track and two or more side tracks from Croghan street north to the city limits, covering 50 streets in its course. Is it true that a railway company may fill its right of way on a street with side tracks, and that the existence of these side tracks at other points, if called a “yard,” will actually prevent the opening of streets across the right of way of the company?
In Railway Co. v. City of Faribault, 23 Minn. 167, and in Union Depot Co. City of St. Paul, 30 Id. 359 (15 N. W. Rep. 684), it was proposed to take depot grounds.
In Railroad Co. v. Williamson, 91 N. Y. 552, the land proposed to be taken had been condemned for depot purposes.
In Re City of Buffalo, 68 N. Y. 167, it was proposed to take certain portions of- the yards of the railroad company for canal purposes.
In Re Boston & A. R. R. Co., 53 N. Y. 574, the rail road company sought to take lands which had been donated to the respondent village for the purpose of a park.
Here neither depot nor yard grounds are proposed to be taken, nor is it proposed to divest the railroad companies of the legitimate use of the land for the purpose for which it was condemned.
The case of Commissioners, etc., v. Michigan Cent. R. R. Co. et al., 90 Mich. 385, involved the crossing of the rights of way of the three roads — the Michigan Cent. R. R. (lessee of the Detroit & B. C. R. R.), Lake Shore & M. S. Ry., and Grand Trunk R. R. — at a point where the rights of way are side by side, where the main and side tracks of each road cross the boulevard, and where the Detroit & Bay City road leaves the line of the other roads, forming a Y, to reach the main tracks of the Michigan Central Railroad. The same questions were raised in that case, except that the Y was not called a part of the yard. All the traffic of the Detroit & Bay City road, and all of the freight traffic of the Grand Trunk, to and from the western portion of the city, crosses the boulevard at that point.
The verdict and order of confirmation must, however, be set aside for the refusal of the court to permit the jury to consider the allowance to respondents of compensation for the expense of erecting safety gates. Upon that point, as well as the other questions raised, the case is governed by Commissioners, etc., v. Mich. Cent. R. R. Co., et al., supra.
The causes will be remanded to the jury for further proceedings.
Morse, C. J., Long and Montgomery, JJ., concurred with McGrath, J. | [
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Durand, J.
This suit is brought to recover damages against the defendant for having willfully, maliciously, and negligently set fire to his premises next adjoining those of the plaintiff, with intent to injure the plaintiff, and for having willfully, negligently, and maliciously permitted the fire to pass over and destroy a portion of the plaintiff’s land; and plaintiff claims double damages therefor, under the provisions of section 9402, How. Stat.
Plaintiff and defendant live on adjoining farms. On Friday, September 20, 1889, the defendant set fire to a pile of stumps a short distance from plaintiff’s land. In about half an hour after the fire was set, the plaintiff discovered that it had caught on his land. He could have easily put it out, but did not do so. He went away, and left it, and, although it continued to burn a little, he did nothing about checking it until the following Monday, at which tíme the wind began to blow, and the fire thereby increased, and continued to burn, and burned holes in the muck ground covering over four or five acres, and lasting for over a month before it was put out. Hpon the trial, plaintiff obtained a verdict for $45, which amount was doubled by the court under the statute referred to, and a judgment for $90 was entered against the defendant.
The plaintiff testifies that the fire could have been put, out when he first saw it, and that he knew it might become dangerous if not put out, and yet he made no attempt to do so until Monday afterwards, when it had made so much headway in the mucky ground that he was unable to extinguish it. Notwithstanding these facts, and against defendant’s objection, he was allowed upon the trial to introduce evidence of damage occurring a month afterwards by the burning of a fence, which was the result of the continuing fire. This was error. Hpon the plaintiff’s own showing he was not entitled to recover for any damage which occurred after he had discovered the fire, and neglected to put it out, as he could have done. At that time the damages were merely nominal, even if the jury found that the defendant had been negligent in setting the fire in the first instance; and the judge should have instructed the jury, as a matter of law, that no damages could be awarded for any injury done after the plaintiff discovered the fire, and neglected to put it out, as testified to by him. A party against whom a trespass is committed has no right by his own action, or by neglecting the obvious and ordinary means of preventing or lessening the damages, to make them more than they otherwise would have been, and this rule is simply one of good faith and fair dealing. Gilbert v. Kennedy, 22 Mich. 117; Dennis v. Huyck, 48 Id. 620.
The judgment must be reversed, with costs of this Court, and a new trial granted.
The other Justices concurred. | [
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] |
Grant, J.
The respondent was convicted of the crime of entering the barn of one Hugh Erazier, in the daytime, with intent to commit the crime of larceny. Twelve fleeces of wool were stolen from the barn. The evidence on the part of the people convinced the jury of the defendant’s guilt. It was sufficient to sustain the verdict if the jury believed the witnesses, and it is evident that they did.
Certain errors are alleged, which will now be considered.
1. At the opening of court, on the first day of the term, the names of the jurors were called, and the judge gave them some preliminary instructions on their duties as jurors. These instructions were entirely proper, and there was nothing in them which could by any possibility tend to prejudice the respondent in this case, or the rights of any litigant. It is entirely proper for the judge to caution the jurors at the beginning of the term that they should not talk witli any person about any case that is to be tried, nor listen to any conversation between others in regard thereto. The instruction in this case contained this caution, and others of like import.
2. It is next insisted that the proofs do not show that the crime was committed in the day-time. Mr. Frazier was in his barn at 9 o’clock on the night previous, and shut and fastened the doors. The wool was then in the-barn. He testified that he went to the barn about sunrise, and found.that 12 of his best fleeces had been stolen. The others were scattered over the floor. An investigation showed that a short distance from the barn a horse’and buggy had been driven into the bush, the horse hitched, and fed with hay. It was a fair inference that the horse had stood there for some time. It was argued by the prosecuting attorney, that the horse was driven to this secluded place in the night, and left there to await daylight, in order that the thief might .see to select the best fleeces. There was also evidence that the respondent drove to the house of one of the witnesses after daylight of that morning, and asked to put some bags in a room in his house. We cannot say that this evidence did not fairly tend to show that the entry into the barn was made after daylight. The question was one fbr the jury, and their verdict¿ is conclusive. People v. Howard, 50 Mich. 240.
3. Defendant’s counsel contends that there was no sufficient identification of the property stolen. Twelve fleeces were taken. Twelve fleece's were found in the possession o'f the respondent on the next day. He took them to a wool dealer to sell. When asked his name, he gave it as Young. Mean while, notice had been given to the wool dealers in the vicinity of the larceny of these fleeces. The wool was left with the dealer to whom respondent had sold it. He was then and there informed that 12 of Mr. Frazier’s fleeces had been taken. He immediately acknowledged that he had taken them, and desired to settle the matter np without further trouble. After his arrest, he made no effort to recover the wool or its value, and Mr. Frazier, upon an order of the sheriff to the wool dealer, received payment for it. The identification was complete.
4. Several witnesses testified to confessions made by the respondent. The evidence on the part of the people tended to show that these confessions were made voluntarily, and not under any threats, duress, or promises. Their testimony was competent. Its weight was for the jury.
The charge of the court was unusually full and fair, and included all the instructions necessary to secure a careful consideration of the facts by the jury.
Conviction affirmed.
The other Justices concurred. | [
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Durand, J.
The information filed in this case charges the respondent with the murder of Wesley McDonald on September 15, 1891, at the township of Port Huron, in St. Clair county. Hpon the trial he was convicted -of murder in the second degree, and sentenced to the State prison at Jackson for the period of 22 years.
The record discloses that on the day mentioned the respondent, who is a farmer, about 53 years of age, was living with his family, consisting of a wife and five children, upon a small farm in a rather inaccessible place near the Flint & Pere Marquette Eailroad track in Port Huron township. He was born in Prussia, speaks the English language brokenly, and it is claimed that he does not understand it perfectly. On the morning of the tragedy the wife of the respondent, who was in the yard near the house, made loud outcries, which attracted the attention •of some men, of whom the deceased was one, who were Walking along the railroad track.
It is claimed that she had a fit at the time, that she was subject to such attacks, and that upon such occasions she was accustomed to scream and cry aloud. While the men were listening to the outcries, and discussing the reason for them, one John Murphy, who had been to the house, and been told by the respondent’s wife that her husband had beaten her, came up and told them that the respondent had been or was beating his wife. Thereupon three of the party, consisting of Ed. Goodrich, John Murphy, and Wesley McDonald, the deceased, started for the respondent’s house. They walked rapidly, and, as they approached the house, increased their pace to a run. The respondent saw them coming, and left the barn, where he •says he was at work, for the house, where he. got a gun, .and went to the door, and ordered them away, and threatened to shoot if they did not go. A controversy then arose between all the parties, and it is evident from the record that they were all very much excited. The respondent was given to understand that these men supposed that he had been whipping his wife, and that they were angry and indignant because of it, and in the excitement of the occasion he insists that McDonald threatened to kill him, and he so testified; that he was afraid that he would do so; and that, while McDonald was advancing upon him in an angry and threatening manner, he shot and killed him. The witnesses do not agree fully in relation to what did actually occur at the time, but all agree that there was a good deal of excitement, and much improper and threatening language used on both sides. With this, however, we have nothing to do, and will therefore refrain from commenting upon it.
The respondent insisted upon the trial that at the time of the shooting he honestly believed that his -life was in danger, or that he was in danger of great bodily harm, and that the shooting was necessary in order to save himself from such threatened danger. Upon this point the circuit judge charged the jury as follows: .
“This man had a right to defend his home, including the curtilage, if he thought there was imminent danger of his being assaulted at the time, and the shooting of the man was the only way to get rid of that assault. Still he would not have- the right to kill him, except when he goes into the house, and locks the door.”
This portion of the charge cannot be sustained. The respondent was not obliged either to go into his house or lock the door before he did the shooting, if, in view of all the circumstances of the case, as they appeared to him at the time, he honestly believed he was in imminent danger of great bodily harm, and that this could only be avoided by acting in defense of himself at once, and before retreating. Under the ruling made, the jury were obliged to convict the respondent, without any regard as to what his fears were at the time of the shooting, or what reason he might have had for shooting the deceased, simply because he did not go into his house and look the door before he pro ceeded to that extremity in his defense. This is contrary to the rule laid down in this State in such cases.
Under the evidence in the case the jury should have been permitted, under a proper charge, to consider all the circumstances connected with the shooting; the number of the men who went to respondent’s house; their excited manner, as well as that of the respondent; his imperfect knowledge of the English language, by reason of which he might have misunderstood the threats made against him, and interpreted them as threats to kill; the conduct of all the parties, and all that was said and done by them or either of them, as well as the intemperate talk indulged in by them upon the occasion; and from such a consideration it was the right of the jury to say whether or not at the time and place it was done the shooting of the deceased was justifiable, or whether or not the degree of the offense was greater than manslaughter. If, after such a consideration, the jury found that the respondent, while acting honestly in fear of his life or of great bodily harm, shot the deceased in order to save himself therefrom, then it was their duty to acquit him. Pond v. People, 8 Mich. 150; Hurd v. People, 25 Id. 405; People v. Lilly, 38 Id. 270; Brownell v. People, Id. 738; People v. Lennon, 71 Id. 298.
Inasmuch as the error mentioned is decisive under the authorities quoted, none of the other assignments of error will be considered.
The judgment will be reversed, and a new trial granted, and the respondent is remanded to the custody of the sheriff of St. Clair county.
The other Justices concurred. | [
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PER CURIAM.
In this action alleging (1) violations of 42 USC 1983 under a state-created danger theory if liability, (2) gross negligence, (3) intentional or grossly negligent infliction of emotional distress, and (4) breach of contract, plaintiffs Iskandar Manuel, Maggie Manuel, Jimmy Manuel, Joseph Manuel, Imad Manuel, and Adel Manuel (the Manuels) appeal by leave granted the trial court’s opinion and order granting summary disposition to defendants, which include various law enforcement agencies and personnel, pursuant to MCR 2.116(C)(8) and (10). This case stems from Iskandar’s agreement to act as an informant for defendant TriCounty Metro Narcotics Squad in an undercover narcotics operation. The Manuels’ allegations stem from conduct that occurred during that undercover investigation. On appeal, the Manuels argue that the trial court erred by granting summary disposition for defen dants on all their claims and by denying their request to amend their pleadings. We conclude that the trial court’s grant of summary disposition on all grounds was proper, and we therefore affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
The Tri-County Metro Narcotics Squad (TCM) is a task force created to enforce narcotics and controlled substances laws in Michigan. The TCM is composed of various law enforcement agencies, including the sheriffs departments of Ingham, Eaton, and Clinton counties, the Lansing Police Department, the East Lansing Police Department, the Michigan Department of State Police, the Lansing Township Police Department, and the Lansing office of the Federal Bureau of Investigation. The participating police agencies assign officers to the TCM, and, while assigned to the TCM, those officers operate under the direction and supervision of the Michigan State Police (MSP). Accordingly, the officers must conform to certain operating procedures, as established by the MSP criminal investigative division policy book, including procedures for dealing with confidential informants.
The Manuels are Lansing residents who own a family car dealership also located in Lansing. Iskandar and Maggie Manuel are married and reside in the same household as the remaining plaintiffs, who work in the family business.
In 1998, Iskandar became aware that Toby Torres, a customer of the Manuels’ car dealership, was a drug dealer whom the TCM was investigating. Defendant Michigan State Police Trooper Kenneth Knowlton, serving as a TCM officer, asked Iskandar to assist the TCM in building a case against Torres. In 1999, Iskandar agreed to assist with the investigation after the TCM assured him that his identity would not be disclosed and that the TCM would reimburse him for any expenses incurred and any losses that the family business incurred. Thereafter, Iskandar informed the TCM of planned drive-by shootings, drug deals, and other criminal activities of Torres and his acquaintances. The TCM also installed surveillance equipment in the Manuels’ residence and family business to videotape and record meetings and phone calls.
On December 5, 2003, the Manuels filed a first amended complaint, alleging violations of their constitutional rights under a state-created danger theory pursuant to § 1983 against Michigan State Police Trooper (and TCM officer) Timothy Gill, Trooper Knowlton, and the TCM (collectively, the state defendants); Clinton County and the Clinton County Sheriff (collectively, the Clinton County defendants); Ingham County, the Ingham County Sheriff, and Ingham County Sheriffs Department Officer (and TCM officer) Rusty BanehofP (collectively, the Ingham County defendants); Eaton County and the Eaton County Sheriff (collectively, the Eaton County defendants); the city of Lansing, the Lansing Chief of Police, and the Lansing Police Commission (collectively, the Lansing defendants); and retired Michigan State Police Captain Jimmy Patrick. The Manuels also alleged gross negli gence against Banehoff, Gill, Knowlton, and Patrick; intentional or grossly negligent infliction of emotional distress against Banehoff, Gill, and Knowlton; and breach of an expressed or implied contract against the TCM.
The Manuels alleged that Gill, Knowlton, and the TCM continued to authorize the placement of tracking devices on vehicles that they sold to drug dealers despite the fact that it would be readily discoverable that the devices were installed while the vehicles were in Iskandar’s possession. The Manuels also alleged that Gill prompted Iskandar to sign a form consenting to a search of a residence in which Iskandar had allowed one of the targets of the investigation to reside and that the form constituted discoverable evidence indicating Iskandar’s involvement in disregard of the promise to keep his identity secret. The Manuels further alleged that in the fall of 2000, Knowlton informed Torres’s probation officer that Iskandar was cooperating with the TCM and that the probation officer thereafter informed Torres of Iskandar’s cooperation.
In addition, the Manuels alleged that Gill, Knowlton, and the TCM arranged a drug deal in which the drug traffickers were to deliver 500 pounds of marijuana and 50 kilograms of cocaine. The traffickers delivered the marijuana, but not the cocaine, and Gill, Knowlton, and the TCM refused to pay $300,000 for the marijuana until the cocaine was delivered. The Manuels maintained that Iskandar received repeated threats on his life because the traffickers were never paid for the marijuana. Further, the Manuels alleged that Iskandar gave Knowlton the phone number of a drug dealer’s girlfriend and that Knowlton called the phone number and identified himself. According to the Manuels, the dealer was, therefore, able to determine that Iskandar was working with the police because that phone number had been given only to him.
In addition, regarding another undercover transaction between Iskandar and the drug dealers, the Manuels alleged that Gill called officers who were arresting a dealer over a two-way radio and stated, in a voice loud enough for the drug dealer to hear, that Iskandar had been arrested. Gill did not inform Iskandar of this subterfuge, however, and Iskandar’s cooperation with the TCM was apparent when the dealer’s son saw Iskandar arrive at the family business moments after his purported arrest. Further, the Manuels alleged that, in 2002, Banehoff was permitted to remain part of an investigation in which “Edward,” a friend of Banehoff, was an acquaintance of one of the targets. The Manuels alleged that Banehoff disclosed to “Edward” Iskandar’s assistance in the investigation. The Manuels alleged that, as a result of the conduct of Gill, Knowlton, Banehoff, and the TCM in disclosing Iskandar’s cooperation, the Manuels’ safety was seriously jeopardized. Their purported peril was evidenced, they alleged, by the fact that the windows of Iskandar’s son’s car were shot out while the car was being driven, a bloody heart with a knife through it was found on the Manuels’ doorstep, Iskandar’s sons were threatened with retaliation, Iskandar received numerous threatening phone calls, and there was an apparent contract for Iskandar’s murder.
Subsequently, each of the defendants moved for summary disposition, and, following hearings on those motions, the trial court issued a written opinion and order granting all defendants’ motions for summary disposition. The trial court grouped the Manuels’ claims into four categories: (1) the Manuels’ § 1983 rights to be free from state-created danger, (2) gross negligence, (3) intentional infliction of emotional distress, and (4) breach of contract. Regarding the Manuels’ § 1983 claim, the trial court determined that, unlike the circumstances of Kallstrom v City of Columbus, no affirmative conduct on behalf of the officers amounted to a constitutional violation. The trial court reasoned that the Manuels voluntarily agreed to cooperate with the TCM and that nothing indicated that they could not have withdrawn their cooperation if they became uncomfortable with the investigation. The trial court stated that an investigation of such magnitude is “inherently dangerous” and that defendants’ actions “amount to nothing more than conduct implicit in an undercover investigation.” The trial court opined that if it were to expand Kallstrom’s holding to include situations such as this case, it would be virtually impossible for the police to use the voluntary assistance of private citizens in such investigations.
The trial court further determined that the only two allegations that could be considered questionable given Kallstrom’s holding were the allegations that Knowlton revealed Iskandar’s cooperation to Torres’s probation officer and that Banehoff allegedly disclosed Iskandar’s assistance to “Edward.” Regarding the probation officer, the trial court determined that the Manuels failed to rebut the probation officer’s affidavit denying knowledge of Iskandar’s involvement and produced only hearsay statements made to Iskandar by Torres in response. The trial court stated that it could not “consider such an unreliable statement.” Regarding Banehoff s conduct, the trial court, relying on Banehoff s affidavit, determined that he took affirmative steps to ensure that the details of the investigation and the identities of the confidential informants were not re vealed. Thus, the trial court ruled that the Manuels failed to state a cause of action under § 1983 because they failed to “allege a recognized constitutional right that has been infringed upon.” The trial court further determined that because none of the alleged conduct by the individuals amounted to a violation of a clearly established constitutional right, defendants were entitled to qualified immunity. The trial court thus granted summary disposition under MCR 2.116(C)(8) on the Manuels’ § 1983 claims.
Regarding the Manuels’ gross negligence allegations, the trial court determined that the Manuels’ complaint failed to state a valid claim of gross negligence because none of the alleged conduct amounted to activity “so reckless as to demonstrate a substantial lack of concern for whether an injury results,” MCL 691.1407. The trial court thus granted summary disposition for defendants pursuant to MCR 2.116(C)(8) on the Manuels’ gross negligence claims. The trial court likewise granted summary disposition for defendants under the same subrule on the Manuels’ claims of intentional infliction of emotional distress, reasoning that the Manuels failed to allege conduct so extreme and outrageous as to satisfy the standard for such claims.
Finally, regarding the Manuels’ breach of contract claim, the trial court determined that the TCM is a juridical entity subject to suit, hut the Manuels pleaded their claim “in the most conclusory” terms and no writing existed establishing the alleged agreement. Thus, the trial court determined that the statute of frauds barred any oral agreement. The trial court granted summary disposition for the TCM on the Manuels’ breach of contract claim under MCR 2.116(C)(8).
II. SUMMARY DISPOSITION
A. STANDARD OF REVIEW
We review de novo a trial court’s decision on a motion for summary disposition. The trial court granted summary disposition for defendants under MCR 2.116(C)(8), but with respect to some defendants, the trial court considered documentary evidence outside the pleadings. Where, as here, it is clear that the trial court looked beyond the pleadings, we “will treat the motions as having been granted pursuant to MCR 2.116(0(10),” which “tests whether there is factual support for a claim.” A motion for summary disposition under MCR 2.116(0(10) is properly granted if no factual dispute exists, thus entitling the moving party to judgment as a matter of law. In deciding a motion brought under subrule C(10), a court considers all the evidence, affidavits, pleadings, and admissions in the light most favorable to the nonmoving party. The nonmoving party must present more than mere allegations to establish a genuine issue of material fact for resolution at trial.
B. VIOLATION OF A CONSTITUTIONAL RIGHT UNDER THE STATE-CREATED DANGER THEORY
The Manuels allege that Banehoff, Knowlton, and Gill, by their conduct and actions during the under cover investigation, violated the Manuels’ constitutional rights to be free from state-created danger under the Fourteenth Amendment of the United States Constitution.
Persons deprived of constitutional rights by individuals acting under color of state law have a civil remedy under 42 USC 1983, which states in part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....
The statute provides no substantive rights in and of itself; rather, it merely supplies a remedy for violations of rights under other laws. Thus, to establish a claim under § 1983, a plaintiff must show that a constitutional violation occurred.
The Fourteenth Amendment Due Process Clause does not require a state “to protect the life, liberty, and property of its citizens against invasion by private actors.” Nevertheless, a state might still be liable for private acts of violence that result from the state’s affirmative acts that greatly increase the risk of harm to its citizens. Courts have interpreted this exception as the “state-created danger theory of liability.” Liability under this theory may be imposed if a plaintiff shows:
“1) an affirmative act by the state which either created or increased the risk that the plaintiff would be exposed to an act of violence by a third party; 2) a special danger to the plaintiff wherein the state’s actions placed the plaintiff specifically at risk, as distinguished from a risk that affects the public at large; and 3) the state knew or should have known that its actions specifically endangered the plaintiff. ”
In response to the Manuels’ claims, Banehoff, Knowlton, and Gill contended that they were entitled to qualified immunity. “When performing discretionary functions, government officials generally are shielded from civil liability so long ‘as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” “Qualified immunity is ‘an entitlement not to stand trial or face the other burdens of litigation.’ ” In analyzing whether a state actor enjoys qualified immunity from suit, a court must first determine whether a constitutional violation occurred. If so, the court must then consider “whether the violation in volved ‘ “clearly established constitutional rights of which a reasonable person would have known.” ’ ”
The Manuels rely on Kallstrom, in support of their argument that defendants Banehoff, Knowlton, and Gill deprived them of a constitutional right. In Kallstrom, the plaintiffs, three undercover police officers, conducted an undercover investigation involving a gang that led to the prosecution of 41 gang members. In the context of the prosecution of one gang member, a defense attorney requested plaintiff Kallstrom’s personnel file, which was turned over. The other two plaintiffs suspected that their files were turned over as well. The files contained the plaintiffs’ home addresses and telephone numbers, the addresses and telephone numbers of the plaintiffs’ immediate family members, the plaintiffs’ social security numbers, their bank account information, and copies of their drivers’ licenses. The plaintiffs filed suit, alleging, in part, that dissemination of their personal information violated their rights to be free from state-created danger under § 1983.
The United States Court of Appeals for the Sixth Circuit agreed and held that the defendant city’s actions in releasing the plaintiffs’ information placed the plaintiffs and their families in “special danger” by “substantially increasing the likelihood that a private actor would deprive them of their liberty interest in personal security.” The federal court reasoned that anonymity is essential to police officers investigating gang-related activity and that by releasing the plaintiffs’ confidential information, the city “placed the personal safety of the officers and their family members, as distinguished from the public at large, in serious jeopardy.” The federal court further found that “[t]he City either knew or clearly should have known that releasing the officers’ [personal information] to defense counsel... substantially increased the officers’ and their families’ vulnerability to private acts of vengeance.” Accordingly, the federal court held that the city’s release of the information created “a constitutionally cognizable ‘special danger,’ giving rise to liability under § 1983. ”
Unlike Kallstrom, in which the plaintiffs did not consent to the disclosure of their personnel files to criminal defense attorneys, the Manuels voluntarily participated in the undercover investigation that involved the conduct they now contend violated their constitutional rights to be free from state-created danger. This factor is significant and takes this case out of the realm of Kallstrom. As the trial court recognized, undercover operations are inherently dangerous, and defendants’ conduct did not create any special danger beyond that normally involved in such an operation.
To support our conclusion that voluntary participation precludes liability under the state-created danger theory, we note decisions from the federal circuit courts of appeals that have addressed this issue in the context of undercover informants. In Summar v Bennett, the plaintiffs son was murdered after serving as a confidential informant in exchange for a plea agreement regarding a pending criminal charge. The indictment issued as a result of the investigation identified the informant by name, and the informant was killed three or four days after the indictment was served. The Sixth Circuit found it significant that the informant voluntarily elected to participate in the investigation despite the fact that he had been informed that he would ultimately have to testify and reveal his identity.
In Vélez-Díaz v Vega-Irizarry, a government informant was murdered after cooperating with the FBI for nearly two months. In exchange for favorable treatment regarding a drug charge, the informant agreed to participate in an undercover operation involving large-scale controlled substances and firearms transactions with a gang. During a transaction, the informant wore a recording device that allowed the law enforcement officers to hear the informant repeatedly state that he was tired and wanted to leave. Shortly thereafter, one of the gang members shot and killed the informant. Following Summar, the United States Court of Appeals for the First Circuit held that the plaintiffs had not alleged facts sufficient to support their claim under a state-created danger theory. The federal court stated, “Plaintiffs’ theory may be that the government owes a duty to all cooperating witnesses to protect them from harm. There are risks inherent in being a cooperating witness, but the state does not create those dangers, others do, and the witness voluntarily assumes those risks.” The federal court also stated that it left open the question whether liability would ensue if the state actor “takes certain actions, such as sending a cooperating witness to what the state knows would be his certain death,” but determined that the facts at issue did not come close to such a circumstance. Thus, the federal court determined that, absent a showing that the government conduct violated a constitutional right, qualified immunity applied.
However, we acknowledge that in analogous circumstances, the United States Court of Appeals for the Seventh Circuit reached an opposite conclusion. In Monfils v Taylor, the victim, Thomas Monfils, notified the police that a coworker, Keith Kutska, intended to steal an electrical cord from the paper mill where they worked. The police notified the security personnel at the plant, who attempted to search Kutska on his way out of the plant, but Kutska refused and was consequently suspended for five days. Thereafter, Kutska attempted to obtain a copy of the tape recording of Monfils’s call to the police in order to identify the informant. Monfils repeatedly telephoned the police to prevent release of the tape to Kutska because he feared retribution from Kutska if his identity was revealed. Ultimately, Monfils spoke with defendant Deputy James Taylor, who assured Monfils that the tape would not be released. Despite his assurances, Taylor did not prevent release of the tape, and Kutska and others murdered Monfils. In response to the plaintiffs’ claim under a state-created danger theory, Taylor asserted qualified immunity. The federal court held that sufficient evidence was presented in the trial court to uphold a verdict against Taylor on the basis that he violated Monfils’s substantive due process rights. The federal court reasoned that, “[a]s an experienced police officer, Taylor knew the dangers informants face.” The federal court further stated that, by failing to follow through with his assurance that the tape would not be released, Taylor created a danger to Monfils that he would not otherwise have faced. Further, without analyzing whether Monfils’s right was “clearly established,” for purposes of qualified immunity, the federal court stated, “Taylor is not and never was entitled to qualified immunity against this claim.”
Whether a confidential informant may bring an action under § 1983 using a state-created danger theory is an issue of first impression in Michigan. Michigan cases addressing the state-created danger concept have involved circumstances distinct and distinguishable from cases involving confidential informants. And the fact that confidential informants voluntarily participate in the conduct alleged to have violated their constitutional rights takes this case out of the realm of other cases alleging liability on a state-created danger theory. Therefore, we find persuasive the analyses of Summar and Vélez-Díaz, which held that confidential informants assume the risks inherent in participating in an undercover investigation. And it is this voluntary participation standard that compels us to find Monfils distinguishable. Although Monfils reported the theft, we cannot equate Monfils’s tip to the police with the knowing participation of the undercover informants in Summar, Vélez-Díaz, and here.
Adopting the reasoning of Summar and Vélez-Díaz, we hold that the Manuels’ allegations fail to establish a constitutional violation. Indeed, even more compelling in this case is the fact that the Manuels’ participation was not in exchange for favorable treatment regarding pending criminal charges; rather, it was for their own personal reasons, namely, a general sense of civic duty and Iskandar’s concern for his son who had previously purchased drugs. It does not appear that Iskandar or the remaining plaintiffs at any time sought to terminate their participation in the operation. We therefore conclude that the Manuels voluntarily assumed the risks inherent in the operation.
The Manuels also argue that only Iskandar, rather than all the plaintiffs, agreed to participate in the investigation. But the remaining plaintiffs cannot establish that defendants engaged in affirmative acts that either created the risk or increased the risk that they would be exposed to acts of violence by third parties, that defendants’ acts specifically put them at risk, or that these individual defendants knew or should have known that their actions specifically endangered the remaining plaintiffs. To the extent that Iskandar’s participation endangered the remaining plaintiffs, Iskandar, rather than defendants, was responsible for any increased danger to them. Thus, these remaining plaintiffs cannot establish a constitutional violation even if they did not personally assume the risk inherent in the undercover operation.
Moreover, even if the Manuels could establish a constitutional violation, Banehoff, Gill, and Knowlton would be entitled to qualified immunity. It does not appear that these defendants violated “ ‘clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” A right is “clearly established,” if it is clear that a reasonable official would understand that his conduct violates that right. As previously stated, although the action in question need not have been previously held to be unlawful, the unlawfulness of the conduct must be apparent in light of preexisting law. Accordingly, Banehoff, Gill, and Knowlton have qualified immunity.
The Manuels also alleged liability on the part of the various county defendants, the Lansing defendants, the TCM, and Patrick on theories that their customs, policies, omissions, and failures to train or supervise TCM officers exposed the Manuels to state-created danger. For there to be liability on the part of a municipality, an underlying constitutional violation must exist. Absent such an underlying violation, there can be no liability against a municipality. Accordingly, because no underlying violation exists, the trial court properly dismissed the Manuels’ claims against the municipality defendants. And while the TCM and Patrick are not “municipalities,” the absence of an underlying constitutional violation precludes liability on the part of the TCM and Patrick for the same reason.
Because the Manuels’ failed to allege a constitutional violation based on a state-created danger, the Manuels failed to state a claim under § 1983. Thus, the trial court properly granted summary disposition on the Manuels’ § 1983 claims.
C. BREACH OF EXPRESS OR IMPLIED CONTRACT
In their amended complaint, the Manuels alleged that Gill and Knowlton, on behalf of the TCM, assured Iskandar “that he would be reimbursed for any expenses or losses suffered by the family business as a result of [Iskandar’s] participation” in the operation. The Manuels alleged that Iskandar repeatedly sold cars to drug traffickers and their friends during the operation and that many of the cars were never returned or were repossessed, which resulted in losses for the business. The Manuels also alleged that Iskandar paid substantial cell phone bills for phones furnished during the investigation and that he was instructed to sell his Rolex watch worth $12,000 to a target of the operation so that the individual could be arrested. The Manuels alleged that the TCM did not fully reimburse them for their losses.
The trial court determined that the Manuels pleaded their claim in the most conclusory terms and, therefore, failed to state a valid claim as a matter of law. We conclude, however, that the Manuels’ allegations were sufficient to state a claim for breach of contract because they supported their claim with factual allegations that, if true, would support a claim for breach of contract. Because a motion under sub-rule C(8) is properly granted only if no factual development could justify recovery, the trial court erred to the extent that it ruled that the Manuels’ allegations failed to state a claim.
The trial court also took issue with the fact that the Manuels did not produce a writing establishing the agreement with the TCM, concluding that the statute of frauds barred the enforcement of any agreement. We conclude, however, that a writing was not required under the statute of frauds because nothing indicates that the agreement could not have been performed within one year. Moreover, the trial court ruled that the statute of frauds bars enforcement of any oral agreement regarding reimbursement of costs incurred by third parties. In this regard, MCL 566.132(l)(b) requires a writing concerning agreements involving “[a] special promise to answer for the debt, default, or misdoings of another person.” Case law has interpreted this provision to apply only to collateral promises for debts already owed. A promise to pay for goods or services to be rendered in the future, however, is an original, rather than a collateral, promise, and is not within the statute of frauds. In the instant case, the Manuels alleged that to induce Iskandar to assist in the operation, Gill and Knowlton, on behalf of the TCM, assured Iskandar that he would be reimbursed for any expenses or losses incurred “as a result of his participation.” Thus, the alleged promise was original rather than collateral, and the agreement was not within the statute of frauds. Accordingly, no writing was required, and the trial court erred to the extent that it granted summary disposition on this ground.
But the trial court properly determined that the TCM is a juridical entity capable of being sued. The TCM argues that it is not an entity capable of being sued because it is merely a task force comprised of various law enforcement agencies. We agree with the trial court that, pursuant to MCL 124.507(2) and the TCM interagency agreement, the TCM is, in fact a juridical entity. More specifically, the plain language of the statute provides that “[t]he entity may sue and be sued in its own name.” Further, article I, § VIII of the agreement expressly addresses liability insurance and legal representation for civil suits “arising out of activities performed by TCM” and how any resultant judgments are to be handled. Therefore, the TCM is an entity capable of being sued. Importantly, because the TCM is operated under the direction and supervision of the MSI] we conclude that the TCM is equivalent to a state agency. But because the TCM is equivalent to a state agency, jurisdiction was not proper in the circuit court; claims against the state must be filed in the Court of Claims. Accordingly, albeit for the wrong reason, the trial court properly granted summary disposition for the TCM on the Manuels’ breach of contract claim.
D. GROSS NEGLIGENCE
Pursuant to MCL 691.1407(2)(b) and (c), governmental employees are immune from suit “if they were acting within the scope of their authority, were ‘engaged in the exercise or discharge of a governmental function,’ and their conduct did not ‘amount to gross negligence that is the proximate cause of the injury or damage.’ ” The Legislature amended MCL 691.1407(2)(e) in 1986 to require that a government employee’s actions be “the” proximate cause of a plaintiffs injury, as opposed to “a” proximate cause of an injury. And in Robinson v Detroit, the Michigan Supreme Court interpreted MCL 691.1407(2)(c) to “provide[] tort immunity for employees of governmental agencies unless the employee’s conduct amounts to gross negligence that is the one most immediate, efficient, and direct cause of the injury or damage, i.e., the proximate cause.”
Robinson involved persons injured in two police chases. The Michigan Supreme Court held that the police officers involved in the chases were immune from tort liability under MCL 691.1407(2) because their pursuit of the fleeing vehicles was not the proximate cause of the plaintiffs’ injuries. Rather, “[t]he one most immediate, efficient, and direct cause of the plaintiffs’ injuries was the reckless conduct of the drivers of the fleeing vehicles.” This Court reached a similar result in Miller v Lord, which involved a high school student who was sexually assaulted by a fellow student. In determining whether two teachers were immune from tort liability, this Court determined that the teachers’ conduct was not the proximate cause of the victim’s injuries and that “the immediate, direct cause preceding [the victim’s] injuries was the alleged sexual assault ____”
As in Robinson and Miller, the proximate cause of the alleged injuries here was not the conduct of Gill, Knowlton, or Patrick. Rather, the most immediate, direct cause of any injuries was the threatening conduct of the targets of the undercover operation. Because the officers’ conduct was not “the” proximate cause of plaintiffs’ alleged injuries, the officers are immune from liability under MCL 691.1407(2). Therefore, summary disposition for those defendants on the Manuels’ claims of gross negligence was proper.
With respect to Banehoff, the Manuels’ claim focuses solely on their allegation that Banehoff disclosed to “Edward” that the Manuels were participating in the investigation. This alleged conduct arguably was not within the scope of employment or within the exercise or discharge of a governmental function. Thus, MCL 691.1407(2) arguably does not provide governmental immunity from the Manuels’ gross negligence claim against Banehoff. Summary disposition for Banehoff would have been proper, however, under MCR 2.116(0(10). In his affidavit, Banehoff denied telling “Edward” or anyone other than law enforcement personnel that Iskandar was involved in the investigation. The Manuels did not produce any evidence in response to Banehoff s affidavit. Rather, the only statement in Iskandar’s affidavit that could possibly be said to counter Banehoff s affidavit is Iskandar’s contention that another associate of the targeted drug dealer telephoned him the day after the alleged meeting between Banehoff and “Edward” and asked how the TCM knew all the details of the transaction that Iskandar had arranged the previous day. Such a statement does not constitute admissible evidence rebutting Banehoff s affidavit specifically denying that he informed anyone of Iskandar’s involvement in the investigation. Because the Manuels failed to produce any admissible evidence in response to Banehoff s affidavit, summary disposition was proper under MCR 2.116(C)(10). To the extent that the trial court relied on MCR 2.116(C)(8), this Court will not reverse a correct decision reached for the wrong reasons.
E. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
To the extent that the Manuels alleged grossly negligent infliction of emotional distress, Gill and Knowlton are immune from suit pursuant to MCL 691.1407(2) for the same reason as discussed above, that is, the officers’ conduct was not the proximate cause of the Manuels’ injuries.
To the extent that the Manuels alleged intentional infliction of emotional distress, we conclude that the trial court properly determined that the Manuels’ amended complaint failed to state a valid claim of intentional infliction of emotional distress. In order to establish this cause of action, a plaintiff must establish
“(1) extreme and outrageous conduct, (2) intent or recklessness, (3) causation, and (4) severe emotional distress. Liability attaches only when a plaintiff can demonstrate that the defendant’s conduct is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.
The conduct alleged in the Manuels’ amended complaint cannot be considered so outrageous and extreme as to surpass all possible bounds of decency. Further, the alleged conduct cannot be regarded as atrocious or utterly intolerable in a civilized community. Rather, it appears from the Manuels’ allegations that, for the most part, they simply disagree with how the undercover investigation was being conducted. Even to the extent that Banehoff s alleged conduct could be said to be outrageous, summary disposition in his favor was proper under MCR 2.116(0(10), again because the Manuels failed to establish a genuine issue of material fact for trial.
III. REQUEST TO AMEND COMPLAINT
Generally, leave to amend a complaint should be freely granted when justice requires. Leave to amend should be denied, however, if amendment would be futile. During one of the various hearings below, the Manuels’ attorney asked to amend their complaint “[a]s far as the proximate cause issue and gross negligence” issue. It appears that counsel was requesting to amend the complaint to allege that the officers’ conduct was the proximate cause of the Manuels’ injuries as opposed to a proximate cause of the Manuels’ injuries. As previously discussed, the officers’ conduct was not the proximate cause of the Manuels’ injuries. Rather, the threatening conduct of the targets of the investigation was the proximate cause. Thus, any amendment would have been futile.
The Manuels also requested to amend their complaint in the “relief requested” section of their response to the motions for summary disposition of the Lansing defendants and the Ingham County defendants. The Manuels did not specify what an amendment would accomplish or what their amended allegations would state. Accordingly, we conclude that the Manuels have not shown plain error affecting their substantial rights.
IV CONCLUSION
In sum, we conclude that the trial court properly granted summary disposition for defendants on all of the Manuels’ claims.
We affirm.
It is unclear whether Jimmy, Joseph, Imad, and Adel are the children of Iskandar and Maggie Manuel.
This name is an alias. Rusty Banehoff s actual name is Evan Bennehoff, Jr.
Jimmy Patrick is a retired Michigan State Police captain who oversaw the operation of the Tri-County Metro Narcotics Squad during the time relevant to this case. Although the Manuels’ amended complaint named Jimmy Patrick as a defendant, it does not appear that Patrick participated in this case in the trial court, and he has not participated in this Court.
Kallstrom, v City of Columbus, 136 F3d 1055 (CA 6, 1998).
Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998); Willis v Deerfield Twp, 257 Mich App 541, 548; 669 NW2d 279 (2003).
Kefgen v Davidson, 241 Mich App 611, 616; 617 NW2d 351 (2000).
Rice v Auto Club Ins Ass’n, 252 Mich App 25, 31; 651 NW2d 188 (2002).
Id. at 30-31.
Id. at 31.
Dowerk v Oxford Charter Twp, 233 Mich App 62, 74; 592 NW2d 724 (1998); Davis v Wayne Co Sheriff, 201 Mich App 572, 576; 507 NW2d 751 (1993).
Davis, supra at 576.
Dean v Childs, 262 Mich App 48, 53-54; 684 NW2d 894 (2004), rev’d in part on other grounds 474 Mich 914 (2005); Kallstrom, supra at 1060.
DeShaney v Winnebago Co Dep’t of Social Services, 489 US 189, 195; 109 S Ct 998; 103 L Ed 2d 249 (1989).
Id. at 201-202; Kallstrom, supra at 1066.
Kallstrom, supra at 1066; see also Bukowski v City of Akron, 326 F3d 702, 708-709 (CA 6, 2003).
16 Dean, supra at 55, quoting Cartwright v Marine City, 336 F3d 487, 493 (CA 6, 2003).
Avalos v City of Glenwood, 382 F3d 792, 798 (CA 8, 2004), quoting Harlow v Fitzgerald, 457 US 800, 818; 102 S Ct 2727; 73 L Ed 2d 396 (1982).
Saucier v Katz, 533 US 194, 200; 121 S Ct 2151; 150 L Ed 2d 272 (2001), quoting Mitchell v Forsyth, 472 US 511, 526; 105 S Ct 2806; 86 L Ed 2d 411 (1985).
Ewolski v City of Brunswick, 287 F3d 492, 501 (CA 6, 2002).
Id. (citations omitted).
Kallstrom, supra at 1059.
Id. at 1060, 1067.
Id. at 1067.
id.
id.
Id.
Summar v Bennett, 157 F3d 1054, 1055-1056 (CA 6, 1998).
Id. at 1056.
Id. at 1058-1059.
Vélez-Díaz v Vega-Irizarry, 421 F3d 71, 73-74, 81 (CA 1, 2005).
Id. at 73-74.
Id. at 74.
Id. at 81.
Id.
Id.
Id.
Monfils v Taylor, 165 F3d 511 (CA 7, 1998).
Id. at 513.
Id. at 513-514.
Id. at 514.
Id. at 513, 515.
Id. at 518.
Id. at 520.
Id.
Id. at 518.
Id.
See Dean, supra at 51-52 (action against fire fighter and township for death of four children in a fire); Conley v Bobzean, unpublished opinion per curiam of the Court of Appeals, issued January 12, 2006 (Docket No. 257276) (action against city and others for failure to detain decedent while intoxicated); Rollo v Guerreso, unpublished opinion per curiam of the Court of Appeals, issued August 25, 2005 (Docket No. 251826) (action on behalf of developmentally disabled child left in custody of mother who died from alcohol abuse); and Fortune v Detroit Public Schools, unpublished opinion per curiam of the Court of Appeals, issued October 12, 2004 (Docket No. 248306) (involving sexual assault of seventh-grade girl following after-school event).
Vélez-Díaz, supra at 81; Summar, supra at 1059-1060. While a possible exception may exist if a state actor sends an informant to what is known to be the informant’s certain death, Vélez-Díaz, supra at 81, that situation is not presented in this case.
Dean, supra at 55.
Avalos, supra at 798, quoting Harlow, supra at 818.
Ewolski, supra at 501.
Id.
Bukowski, supra at 712-713; Doe v Claibourne Co, 103 F3d 495, 505 (CA 6, 1996).
Johnson-McIntosh v Detroit, 266 Mich App 318, 322; 701 NW2d 179 (2005).
MCL 566.132(l)(a) (requiring agreements that by their terms cannot be performed within one year be in writing and signed by the party to be charged).
Schier, Deneweth & Parfitt, PC v Bennett, 206 Mich App 281, 282; 520 NW2d 705 (1994); Gillhespy v Bolema Lumber & Bldg Supplies, Inc, 5 Mich App 351, 355; 146 NW2d 666 (1966).
MCL 124.507(2).
MCL 600.6419.
Amerisure Ins Co v Auto-Owners Ins Co, 262 Mich App 10, 21; 684 NW2d 391 (2004).
Miller v Lord, 262 Mich App 640, 644; 686 NW2d 800 (2004), quoting MCL 691.1407(2)(b) and (c).
1986 PA 175; Miller, supra at 644.
Robinson v Detroit, 462 Mich 439, 462; 613 NW2d 307 (2000).
Id. at 447-449.
Id. at 462.
Miller, supra at 642.
Id. at 644.
Iskandar’s affidavit does not aver that Banehoff disclosed Iskandar’s identity to “Edward,” as alleged in plaintiffs’ amended complaint. Rather, Iskandar averred that Banehoff informed a friend that Banehoff “had arranged a deal, where drugs and cash would be exchanged for a car at a car dealership.” Thus, Iskandar’s own affidavit fails to support the allegations in the Manuels’ amended complaint.
Amerisure, supra at 21.
69 Heckmann v Detroit Chief of Police, 267 Mich App 480, 498; 705 NW2d 689 (2005) (citation omitted).
MCR 2.118(A)(2); Tierney v Univ of Michigan Regents, 257 Mich App 681, 687; 669 NW2d 575 (2003).
MCR 2.118(A)(2); Tierney, supra at 687-688.
See Hilgendorf v St John Hosp & Med Ctr Corp, 245 Mich App 670, 700; 630 NW2d 356 (2001). | [
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PER CURIAM.
Defendant appeals by leave granted a circuit court order affirming the district court’s finding that defendant was responsible for a civil infraction for violating an ordinance that prohibits blasting without a permit. We reverse.
Defendant operates a quarry in the city of Trenton that runs along Trenton’s border with plaintiff. Plaintiffs police chief, Patrick Knight, issued a civil infraction citation to defendant for blasting without a permit, contrary to Riverview ordinances § 22-173 and § 22-191 of article V of plaintiffs code. Defendant pleaded not responsible and requested a formal hearing in the district court. Defendant moved in the district court to dismiss the citation on the grounds that it conducted its activities solely within Trenton. It argued that plaintiff could not lawfully exercise its authority beyond its boundaries and that the 27th District Court was not the proper venue to adjudicate civil infractions occurring in Trenton.
The district court concluded that the effect of the blasting on plaintiffs real estate and citizens fell within the scope of plaintiffs ordinance, which was presumed valid and constitutional, and it found that venue was proper. It conducted a formal hearing on the civil infraction citation. Chief Knight testified that he felt and heard a blast at his home. He later ascertained that the blasting occurred at its scheduled time. After verifying with plaintiffs engineering office that defendant did not procure a blasting permit, he issued a civil infraction citation to the quarry. He was unaware of any possible source of the blast other than the quarry operation. The district court found by a preponderance of the evidence that defendant committed a civil infraction under the ordinance. It assessed fines and costs of $150 against defendant, but stayed payment pending appeal.
On appeal, the circuit court affirmed the district court’s decision. It relied on Coldwater v Tucker, 36 Mich 474 (1877), to find that a home rule city can exercise power beyond its own boundaries in unusual circumstances. At issue in Coldwater was whether a city, which had no express authority in its charter to execute drainage works outside its borders, but had general authority over drainage, could enter into a contract for drainage works outside its borders to provide an adequate outlet for sewage. Our Supreme Court held that the contract was not repugnant to the charter’s purpose or beyond the city’s corporate powers. Id. at 480. It recognized:
The general doctrine is clear that a municipal corporation cannot usually exercise its powers beyond its own limits. If it has in any case authority to do so, the authority must be derived from some statute which expressly or impliedly permits it. [Id. at 477-478.]
Defendant first argues that the circuit court erred when it determined that plaintiff had authority to adopt an ordinance regulating defendant’s blasting operations outside plaintiffs boundaries pursuant to MCL 117.4i(d). We agree.
Issues of statutory interpretation are reviewed de novo. Ford Motor Credit Co v Detroit, 254 Mich App 626, 628; 658 NW2d 180 (2003). The applicability of a statute is also a question of law that is reviewed de novo. Adams Outdoor Advertising, Inc v City of Holland, 463 Mich 675, 681; 625 NW2d 377 (2001). The rules governing statutory interpretation apply with equal force to a municipal ordinance. Gora v City of Ferndale, 456 Mich 704, 711; 576 NW2d 141 (1998). A municipal corporation has no inherent power and must derive its authority from the state. Bivens v Grand Rapids, 443 Mich 391, 397; 505 NW2d 239 (1993). An ordinance of a home rule city is valid only if it is consistent with the powers granted by constitution or statute and if it falls within the scope of authority in the city’s charter. Id. Const 1963, art 7, § 22 grants the electors of each city the power to adopt and amend its charter and grants the city the power to adopt ordinances relating to municipal concerns, property, and government, subject to law. The dispositive question is whether the pertinent ordinances are consistent with plaintiffs express or implied powers conferred by the Home Rule City Act, MCL 117.1 et seq. The challenged ordinance, § 22-191, states in relevant part:
It shall be unlawful for any person, firm, entity, corporation or association to engage in any blasting operations within the city or located outside of the city whose operations affects any real property or persons located within the city, without having first secured a permit from the city council.
Defendant argues that the challenged ordinance was not permitted under MCL 117.4Í, which provides in part:
Each city may provide in its charter for 1 or more of the following:
(d) The regulation of trades, occupations, and amusements within city boundaries, if the regulations are not inconsistent with state or federal law, and the prohibition of trades, occupations, and amusements that are detrimental to the health, morals, or welfare of the inhabitants of that city. [Emphasis added.]
The circuit court essentially ruled that plaintiffs ordinance should be presumed valid under this statute and that the authority to regulate a trade outside plaintiffs boundaries could be implied from the statute’s “prohibition” clause. Laws concerning a city must be liberally construed in its favor. Const 1963, art 7, § 34; Bivens, supra at 400. But the primary purpose of statutory interpretation is to give effect to legislative intent. Casco Twp v Secretary of State, 472 Mich 566, 571; 701 NW2d 102 (2005). Legislative intent is determined by reviewing the language of the statute. Id. When the language is unambiguous, we presume the Legislature intended the meaning plainly expressed. Id. A statute is construed by considering both the plain meaning of a critical word or phrase and its placement, purpose, and grammatical context within the statute. Sun Valley Foods Co v Ward, 460 Mich 230, 237; 596 NW2d 119 (1999). Every word, phrase, and clause must be given effect. Shinholster v Annapolis Hosp, 471 Mich 540, 549; 685 NW2d 275 (2004).
Here, it is clear that the “regulation” clause in MCL 117.4i(d) only authorizes the regulation of a trade within a city’s boundaries. Had the Legislature intended to allow regulation outside a city’s boundaries, it could have used the phrase “within or without,” as it has done when enacting other statutes. See Sabaugh v Dearborn, 384 Mich 510, 517-518; 185 NW2d 363 (1971) (“within or without” language in the Revenue Bond Act, at MCL 141.104, construed as permitting a city to acquire public works outside the state). Because the statute does not confer the authority to regulate a trade outside a city’s boundaries, as a matter of law there is no basis for implying any power necessary to carry out the regulatory function.
Furthermore, the “prohibition” clause is not relevant to plaintiffs permit ordinance because the ordinance does not prohibit any particular trade, but rather requires a permit, subject to specified regulations, to engage in a blasting operation. To the extent that the circuit court construed the “prohibition” clause as impliedly authorizing a city to “regulate” a trade outside its boundaries, its construction was incorrect. An absolute prohibition is an extreme form of regulation. See Grocers Dairy Co v Dep’t of Agriculture Director, 377 Mich 71, 76; 138 NW2d 767 (1966); Van Buren Twp v Garter Belt, Inc, 258 Mich App 594, 609-611, 619; 673 NW2d 111 (2003). If the “prohibition” clause were construed to permit lesser forms of regulation such as permitting, then the “regulation” clause would be nullified. Moreover, because prohibition is a form of regulation, Van Buren Twp, supra, the prohibition must also take place within a city’s boundaries and comply with state and federal law. It follows, as a matter of law, that MCL 117.4i(d) does not provide the necessary authority for plaintiff to regulate defendant’s blasting operation, which is not within plaintiffs boundary.
Legal texts and case authority from other jurisdictions do not support a different interpretation of Michigan law. The general rule appears to be that a municipality’s police powers may only be exercised within its boundaries, absent statutory or other special authority. See 56 Am Jur 2d, Municipal Corporations, Counties, & Other Political Subdivisions, § 395, p 435, and 6A McQuillian, Municipal Corporations (3d ed), § 24.57, pp 163-164. In Almquist v City of Biwabik, 224 Minn 503, 507; 28 NW2d 744 (1947), the Minnesota Supreme Court rejected the notion that the failure to specifically deny a power was enough to authorize it by implication. The court relied on an earlier Minnesota case, Duluth v Orr, 115 Minn 267; 132 NW 265 (1911), involving a city ordinance that regulated explosive materials within the city and within one mile of the city. A constitutional provision empowered the city council to frame a charter “for its own government,” and the general grant of authority provided by statute for the city stated that “nothing in this section shall authorize a change of boundaries.” Id. at 269. In finding the ordinance invalid, the Minnesota Supreme Court stated, in part:
The right given to the people within prescribed territorial limits to adopt a complete municipal code does not warrant the assumption by them of power over territory and people beyond those limits, even though the control of such territory and people would be convenient and gratifying to the people within the city. The practical difficulties involved in the assumption by cities of such power are apparent. Innumerable conflicts in authority would inevitably follow. Such a result is not reasonably within the purview of the constitutional amendment. The ordinance, with the violation of which the defendant was charged, is, as to territory beyond the city limits, invalid. [Id. at 270.]
City of Eugene v Nalven, 152 Or App 720; 955 P2d 263 (1998), involved the validity of a city ordinance compelling residents outside its boundaries to connect to its sewer system. In finding the ordinance invalid, the court stated, “although municipal authority gener ally may derive from express or implied grants from the state, the power to act beyond municipal boundaries may not be implied and instead must be based on an expressed — indeed, on a ‘clearly expressed’ — conferral of authority.” Id. at 725 (emphasis in original).
In GTE Northwest Inc, v Oregon Pub Utility Comm, 179 Or App 46; 39 P3d 201 (2002), the Oregon Court of Appeals drew a distinction between coercive authority and consensual transactions when reviewing a county’s authority to provide telecommunications beyond its geographical borders. It found that the nature of the county’s extraterritorial activity, and not the territorial boundaries themselves, was the relevant factor in determining whether authority could be exercised beyond the boundaries. Id. at 58. Quoting DeFazio v Washington Pub Power Supply Sys, 296 Or 550, 582-583; 679 P2d 1316 (1984), the court stated, in part:
[T]he concept of “extramural power,” power “outside the walls,” is relevant when a city undertakes to assert coercive authority over persons or property outside its boundaries. It has little relevance to a city’s contracts or other consensual transactions in goods or services, although an exercise of eminent domain outside city limits, for instance, would be an exercise of extramural power. [GTE Northwest Inc, supra at 58.]
Although the standards applied in Oregon are not controlling with respect to how Michigan’s home rule city law is construed, GTE Northwest Inc provides persuasive reasoning regarding the importance of distinguishing between a consensual and a coercive exercise of municipal authority outside the municipality’s borders. Moreover, it distinguishes this case from Cold-water, supra at 477-478, on which the circuit court relied to find that plaintiff had statutory authority under MCL 117.4Í to regulate blasting operations out side its borders. Plaintiff may have a legitimate concern regarding the effect on its own property and residents caused by blasting operations outside its borders even though the effect does not constitute a direct, tangible intrusion over the property. See Adams v Cleveland-Cliffs Iron Co, 237 Mich App 51, 65-67; 602 NW2d 215 (1999) (matters of noise and vibration are not direct, tangible invasions that will allow a recovery in trespass, but may be recoverable in nuisance). But unlike Cold-water, plaintiff attempted to exercise authority outside its boundaries in a compulsive, rather than consensual, manner. The Legislature has not expressly or impliedly authorized this type of action. Hence, § 22-191 of plaintiffs code is facially invalid to the extent that it attempts to regulate blasting operations outside the city.
Defendant next argues the 27th District Court lacked jurisdiction over the civil infraction action because it occurred in Trenton, and either a change of venue or dismissal should have been ordered. We disagree.
Jurisdiction is a question of law that is reviewed de novo. Bass v Combs, 238 Mich App 16, 23; 604 NW2d 727 (1999). A trial court’s decision whether venue should be changed is reviewed for clear error. Id. at 19. “Clear error exists when the reviewing court is left with a definite and firm conviction that a mistake has been made.” Massey v Mandell, 462 Mich 375, 379; 614 NW2d 70 (2000). An issue of statutory construction is reviewed de novo. Ford Motor Credit Co, supra at 628. Jurisdiction is a court’s power to act and its authority to hear and decide a case. Trost v Buckstop Lure Co, Inc, 249 Mich App 580, 586; 644 NW2d 54 (2002). If a court lacks subject-matter jurisdiction, its acts and proceedings are invalid. Id. “The district court has jurisdiction over civil infraction actions.” MCL 600.8301(2). Because this is a civil infraction action, jurisdiction was established. The 27th District Court had the power to act, even if it committed an error in the exercise of jurisdiction. Trost, supra at 586.
MCL 600.8703(4) governs the commencement of a municipal civil infraction action, and provides in relevant part:
The place specified in the citation for appearance shall be the court referred to in subsection (2) that has territorial jurisdiction of the place where the municipal civil infraction occurred. Venue in the district court is governed by section 8312.
The venue statute, MCL 600.8312(6), provides in part:
Venue in civil infraction actions shall be determined as follows:
(c) In a district of the third class, venue shall be in the political subdivision where the civil infraction occurred, except that when the violation is alleged to have taken place within a political subdivision where the court is not required to sit, the action may be heard or an admission entered in any political subdivision within the district where the court is required to sit.
The 27th Judicial District is a third-class district consisting of Wyandotte and Riverview. MCL 600.8121(12). The 33rd Judicial District, which includes Trenton, is also a third-class district. MCL 600.8121(19). Hence, the governing provision was MCL 600.8312(6)(c). The charged civil infraction was based on the following provision in § 22-173 of plaintiffs code:
Any person, firm, corporation, association or entity is subject to prosecution and suit under this article who engages in an impulse noise, vibration, or blasting operation and:
(3) Fails to obtain any required permit....
Thus, it was the operation (without a required permit) involving impulse noise, vibration, or blasting that could be prosecuted by plaintiff. Because venue was controlled by where the civil infraction occurred, the proper inquiry should have been the location of the operation (without the required permit). Because defendant’s operation was situated in Trenton, the 27th District Court was not the proper venue. Nevertheless, MCL 600.1645 provides that “[n]o order, judgment, or decree shall be void or voidable solely on the ground that there was improper venue.” See also Bass, supra at 22. Therefore, the instant issue, standing alone, does not afford a basis for relief.
Defendant next argues that the provision in § 22-216(2) of plaintiffs ordinances for class A permit inspections contravenes the prohibition against unreasonable searches under the Fourth Amendment. Because defendant failed to brief the relevancy of its Fourth Amendment issue to the civil infraction citation, we decline to address this issue. Although there are instances in which a reviewing court may overlook preservation requirements, Steward v Panek, 251 Mich App 546, 554; 652 NW2d 232 (2002), a party’s failure to brief an issue that necessarily must be reached precludes appellate relief. Roberts & Son Contracting, Inc v North Oakland Dev Corp, 163 Mich App 109, 113; 413 NW2d 744 (1987).
Reversed.
We granted Trenton’s and Detroit Edison’s motions to file briefs amicus curiae. Detroit Edison is the alleged owner of the land on which defendant operates its quarry.
An earlier circuit court lawsuit brought by plaintiff against defendant regarding blasting operations at the quarry had been dismissed without prejudice. The dismissal order stated that a court-appointed monitor had approved a blasting design and operational plan for defendant, but authorized the monitor to continue overseeing defendant’s operations and to modify the plan before submitting a final report to the parties.
Also relevant are § 22-193(a), which provides for the payment of permit fees to plaintiffs general fund; § 22-173, which provides that failure to obtain a blasting permit results in a civil infraction; and § 22-194, which provides, “If approved by the city council, subject to the regulations of this section and the provisions of the Fire Prevention Code (MCL 29.1 et seq.), and the Explosives Act of 1970 (MCL 29.41 et seq.), a permit shall be granted to the applicant....”
Plaintiffs claim that it has independent authority to enact the ordinance under MCL 117.3 is not properly before this Court because this claim was not argued in the circuit or the district court. Although an appellee need not file a cross-appeal to argue alternative reasons to support a judgment, Middlebrooks v Wayne Co, 446 Mich 151, 166 n 41; 521 NW2d 774 (1994), to properly preserve a claim for appeal, the reasons must have been presented to the lower court, FMB-First Michigan Bank v Bailey, 232 Mich App 711, 718; 591 NW2d 676 (1998). Nevertheless, nothing in the general language of MCL 117.3 mandates that a home rule city must regulate a trade within or without its borders. This subject matter is addressed in MCL 117.4i(d), which designates the regulation as a permissive charter provision. A specific statutory provision controls over a general statutory provision. Jones v Enertel, Inc, 467 Mich 266, 270; 650 NW2d 334 (2002). Hence, as a matter of law, MCL 117.4i(d) is the controlling statute.
Plaintiffs reliance on Huron Portland Cement Co v Detroit, 355 Mich 227; 93 NW2d 888 (1959), affd 362 US 440 (1960), is misplaced because neither our Supreme Court nor the United States Supreme Court addressed the issue of extraterritorial authority. Similarly, the amicus curiae Trenton’s reliance on Vulcan Materials Co v City of Tehuacana, 369 F3d 882 (CA 5, 2004), is misplaced. The issue in that case was Whether a city ordinance prohibiting mining activities within the city constituted a public taking. We disagree that the Fifth Circuit Court of Appeals tacitly acknowledged that a city can regulate activity beyond its borders. The court identified the ordinance in question as one “forbidding quarrying or mining activities within the City limits.” Id. at 885 n 2. It did not purport to address whether the city had statutory authority to regulate land outside its boundaries.
Because of our resolution of this issue, defendant’s argument that plaintiff failed to prove a prima facie case is moot. | [
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Per Curiam.
Petitioners filed a bill in chancery against the Bancroft-Thompson Company, a corporation, and against its stockholders and directors, and against the members of a mercantile firm known as “ C. R. Hawley & Co."" Petitioners had obtained a judgment against the corporation, and then filed this a judgment creditors" bill against the defendants, charging fraud. The fraud is alleged to consist in the non-payment of the capital stock, the withdrawal of the capital stock by the directors and stockholders, the fraudulent giving and foreclosure of a chattel mortgage, the fraudulent purchase of goods by Hawley, one of the stockholders and directors, when the corporation was insolvent, and the fraudulent purchase of goods by the firm at the mortgage foreclosure sale.
The bill is in the usual form, and prays for a discovery as to the assets of the firm of Bancroft, Thompson & Co. turned over to the corporation, and the liabilities of said firm assumed by the corporation; when and how such liabilities were paid; for an inventory of all the property and effects sold under tbe mortgage; of all accounts, dioses in action, and bills receivable tbat defendant Bancroft took possession of, and of all moneys, securities, and property collected or received by him, and all accounts or claims that were settled at less than their face value; and of all money and property that were received by the directors and stockholders of said corporation. In brief, the bill prays for a discovery of all the dealings and transactions of the corporation, and of its directors, and all the dealings of the firm with it. The bill prays for answer under oath.
The answer, which is under oath, contains a full and specific denial of all the charges of fraud made by the bill, but does not disclose the evidence prayed for. The answer contains an offer on the part of the defendants to submit to an examination under oath touching these matters, and to produce all books and papers relating thereto in their possession.
Complainants filed exceptions to the answer. These exceptions, were referred to a circuit court commissioner, who made a report sustaining some exceptions and overruling others. Upon a hearing of this report, the court held—
“That the practice of excepting to answers for insufficiency has been superseded, and rendered obsolete, by the statutes making parties to suits generally competent to testify as witnesses, and that such practice is no longer permissible, or, if permissible, is not obligatory on the courts, but rests in their discretion.”
The court thereupon entered an order sustaining the exceptions made bn the part of the defendants, and overruling those on the part of the complainants. The order recites that it was made “without considering the merits of said exceptions to said answer.” In his answer respondent says that, in passing upon the questions described in the said order, he came to the conclusion that the practice of excepting to answers for insufficiency, as a matter oí right, was obsolete; that the allowance of such exceptions under the present practice was within the discretion of the court; that he examined the bill of complaint, the answer excepted to, the exceptions to the answer, the report thereon, and the exceptions to said report, so far as to satisfy himself that, under the practice, complainants’ exceptions should be overruled, but that he did not examine into the merits of each exception, as he would have done under the old practice.
The exceptions to the answer relate only to those matters as to which discovery is sought. In this respect the bill is one purely for discovery. It seeks evidence, to be used upon the hearing of the case. Under the liberal rules of practice in our chancery courts, this evidence can be readily obtained by the testimony taken before a commissioner or in open court. The court can upon application order all the books of the defendants to be produced for the examination of complainants, and this in ample time to permit complainants to prepare for the final hearing.
This'Court has decided that, since parties have become general witnesses under our statutes, a bill of discovery will not lie where the facts sought to be discovered are within the knowledge of any witness. Riopelle v. Doellner, 26 Mich. 102; Shelden v. Walbridge, 44 Id. 251. It is apparent in this case that there is no more necessity for a discovery than existed in the cases above cited. The evidence can be as easily and readily obtained in this case as in those. Those cases must therefore govern this, unless it is taken out of the rule by the statutes in regard to judgment creditors’ bills (How. Stat. §§ 6614, 6615), and the statutes in regard to proceedings against corporations (How. Stat, chap. 281, §§ 8168, 8169).
How. Stat. § 6617, expressly provides for filing a bill of discovery where the defendant is charged with having-given a warrant of attorney to enter up a judgment, or with having confessed or suffered any judgment, when nothing or only a part of the sum claimed is due.
The first two sections above cited provide for a judgment creditors’ bill to compel the discovery of property belonging to the defendant. Section 8168 provides that the court may compel a corporation to discover any stock, ■etc., belonging to it, the transfer and disposition thereof, the consideration, and all the circumstances of such disposition. Section 8169 provides that every officer, agent, ■or stockholder of a corporation may, under the circumstances mentioned therein, be compelled, in the discretion of the court, to answer a bill filed to obtain discovery. Section 8170 provides that no answer of an officer or agent of a corporation shall be compelled unless by special order ■of the court.
Technically, a bill of discovery is one brought in aid of a suit at law, and such was the bill held to have become obsolete in Riopelle v. Doellner.
In Hubbard v. McNaughton, 43 Mich. 223, this Court recognized the right to seek a discovery in a judgment creditors’ bill. Mr. Justice Campbell, speaking for the Court, said:
££No universal rule can be laid down where most of the facts must necessarily be within the knowledge of defendants. Under the old. practice, before parties became competent as witnesses, it was often necessary to draw out such matter by discovery, and it is still competent, although not common, to do so.”
Again, the right to compel discovery in such a suit was recognized still to exist in Turnbull v. Lumber Co., 55 Mich. 392. It is clear from these two decisions that this Court understood the decision in Riopelle v. Doellner to apply to the bill of discovery in aid of a suit at law. It must be remembered, that there are no express provisions of the statute in regard to bills of discovery in aid of a suit at law., In view of the decisions above cited, and the express provisions of the statute in regard to judgment creditors’ bills, we do not think that such provisions were repealed by the statute making parties witnesses. We therefore hold that the right of discovery in such cases still exists.
As appears by the petition in this case, the answer to which these exceptions were taken was that of Mr. Bancroft, one of the officers of the company. Under the statute above cited, a special order of the court was necessary to compel such answer. This was not obtained. His voluntary answer did not, therefore, entitle the complainants to file exceptions to it, especially since his answer is an express denial of the charges made.
Furthermore, discretion to compel such discovery is lodged in the court, and his return shows that he exercised that discretion, although not to the full extent that he would have done had he not regarded the practice obsolete. As already stated, complainants can compel discovery by causing to be produced the books and papers relating to the transactions, and by the testimony of witnesses before the court. It is apparent that a compliance with the prayer of the bill would require the expenditure of considerable time and money on the part of the defendants, and when it is remembered that the allegations of fraud in the bill are mainly upon information and belief,, and are expressly denied, this Court ought not to interfere by the discretionary writ of mandamus.
It therefore follows that the writ must be denied. | [
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] |
Durand, J.
The respondent was convicted upon an information charging him with the larceny of $31, the property of one Louis Johnson, during the summer of 1891.
The respondent complains that the circuit judge erred in deciding that there ivas sufficient evidence to warrant the jury in returning a verdict of guilty. The record does not disclose that he did so, except to hold that there was some evidence to go to the jury in relation to the guilt of the respondent, and this evidence was submitted to them in a fair and impartial manner by the circuit judge, with an instruction that the evidence must convince them beyond a reasonable doubt of the guilt of the respond ent, or they must acquit him. As there was evidence of that character, it was clearly a question for the jury, and the circuit judge was right in submitting it to them.
• The respondent also claims error on the part of the. circuit judge in refusing to allow the respondent’s -counsel, on cross-examination, to show that Josie LaCohib, who was-a witness on behalf of the people, was a person of bad moral character. The record discloses that she admitted that, though not married to him, she had been living and cohabiting with the respondent for some time, claiming to be his wife, and that she was sustaining that relation to him at the time she testified that he committed the offense for which he was convicted. This would indicate that the jury must have had something upon which to rest an opinion in relation to her moral character, without the aid of any other testimony touching upon the-question of her chastity, but, in addition to this, the court permitted her to be asked by respondent’s counsel, on cross-examination, if she had ever been married; if she had ever had a child; if she did • not have a child at her mother’s house; and if some years ago, or some time ago, she had not been in a family way at her mother’s house. To each and all of these questions she answered, “No.” The respondent’s counsel then asked her the question, “Have you been in the habit of going around with men?” and, upon insisting that he wished to show that she was a woman of bad moral character, the circuit judge responded, “I think that has gone far enough now,” and refused to permit any further questions in that line. While it was-'the duty of the circuit judge, upon the cross-examination of the witness, to permit such reasonable interrogation upon the subject as would fairly disclose to the jury her true character, and thus enable them to judge of the weight which should be given to her testimony, yet we think that in this case he did not abuse his discretion in that particular. The jury were already informed that the character of the witness for chastity was bad, and any further testimony, tending to impeach her virtue, would have "been merely cumulative, and we think that the circuit judge did not err in declining to give further latitude, in that direction.
Objection is also made to certain remarks of the counsel for the people in his argument to the jury, which it is claimed reflected unjustly upon the character of the respondent, and which had no relation to the case. A careful examination of the record fails to show that the objection is well taken. The language complained of was used by the counsel for the people in his argument that the jury .should consider why the respondent did not go to his father for certain money which he wanted to use to go north with, and in reference to which subject testimony had been given; whether his failure to do so was because he knew his father had no confidence in him, and whether that lack of confidence was to be attributed to idle habits or a vagabond life; and he urged that the jury had a right to consider it in determining about the life and character of the respondent; and he also asserted that a son brought up by an honest and respectable father, with a view that he should lead an honest and respectable life, should be as certainly convicted, if guilty of a .crime, as though he were the son of the greatest rascal in the community. While the language might have been more temperate, still it cannot be said to be sufficiently objectionable to be error.
It is also claimed that the circuit judge instructed the jury that they could take into consideration the character of the respondent as bearing upon his guilt or innocence, and also that he submitted the cause to the jury upon a theory not warranted by the evidence. The circuit judge correctly informed the jury that a good character was of importance to a person charged with crime, and that a jury lias a right to consider whether a person with a good character woull be less liable to be guilty of crime than a person of bad habits and character. This is undoubtedly the true rule, and it is so beneficent in its character that it is entitled to the constant recognition of all courts when engaged in the trial of any person charged with the commission of a crime.
Neither does it appear that the circuit judge submitted the case to the jury upon a theory not warranted by the evidence. The record shows that the witness Josie La-Comb testified that she was present when the larceny was committed, and that, although she protested against its commission, and had nothing to do with it, yet she received a part of the money. The circuit judge stated to the jury that, although she was a witness for the people, yet she was herself then under arrest for the same offense; that it was for her interest to show that somebody else, and not she, was the guilty party; and that, if they should find from the evidence that she and the respondent together stole the money, yet the fact that she was guilty also would not relieve him; that in that case each and both would be guilty. Under the evidence in this case it is difficult to discover how this instruction can be held to be improper, or, if so, how, or in what manner, it could prejudice the respondent.
We are unable to find any error in the record, and the conviction is affirmed.
The other Justices concurred. | [
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The Court orders that a special panel shall be convened in accordance with MCR 7.215(J) to resolve the conflict between this case and Mazumder v Univ of Michigan Bd of Regents, 270 Mich App 42 (2006).
The Court further orders that part 11(D) of the opinion released on April 13, 2006, which addresses the applicability of the doctrine of equitable tolling in cases affected by the retroactive application of Waltz v Wyse, 469 Mich 642 (2004), is vacated. MCR 7.215(J)(5).
Appellant may file a supplemental brief within 21 days of the Clerk’s certification of this order. Appellees may file a supplemental brief within 21 days of service of appellant’s brief. Nine copies must be filed with the Clerk of the Court. | [
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PER CURIAM.
In this condemnation action, defendants Rodney Tomkins and Darcy Tomkins appeal by right the trial court’s order granting plaintiff Michigan Department of Transportation (MDOT) summary disposition under MCR 2.116(C)(10). We reverse and remand.
I. BASIC FACTS AND PROCEDURAL HISTORY
This case stems from a right-of-way that MDOT acquired for construction of the M-6 highway just outside of Grand Rapids. The 20-mile, $420 million M-6 project largely redefined most of the Grand Rapids metropolitan area by connecting 1-96 to M-37 and US 131, and by providing a limited access highway loop around the Grand Rapids area. Part of the construction project required MDOT to construct various bridges, or overpasses, to continue existing county roads over the new M-6 highway. One such county road was Kenowa Avenue. The Tomkinses’ single-family home was situated on approximately two acres of land abutting Kenowa Avenue. After the Tomkinses rejected MDOT’s offer of $4,200 for a 49-foot-wide by 120-foot-long strip of their property located parallel to Kenowa Avenue, MDOT filed a condemnation complaint pursuant to the Uniform Condemnation Procedures Act (UCPA), MCL 213.51 et seq.
Both parties’ expert appraisers agreed that the fair market value of the strip of property taken was $3,800. However, the Tomkinses alleged that they were entitled to an additional $48,200 in damages attributable to the effects of the M-6 highway. Tomkinses’ appraiser referred to these damages as “the highway effects.” Specifically, the Tomkinses’ appraiser took into account “the proximity of the subject property to the highway” and the additional “dust, dirt, noise, vibration, and smell” when calculating the additional damages.
MDOT filed a motion in limine, arguing that § 20(2) of the UCPA precluded the Tomkinses from presenting evidence of the general effects of the project to determine just compensation. Alternatively, MDOT sought summary disposition under MCR 2.116(C)(8) and Spiek v Dep’t of Transportation, arguing that a claim for noncompensable damages, like general “highway effects,” in a condemnation action failed to state a claim on which relief may be granted. The Tomkinses argued that just compensation in a partial taking must include compensation for everything that causes a diminution in the market value of the remaining property, including “highway effects.” The Tomkinses further argued that § 20(2) of the UCEA was an unconstitutional limitation on their right to just compensation.
In granting MDOT’s motion in limine, the trial court ruled that § 20(2) of the UCEA was clear and that the statute’s method of determining just compensation in condemnation actions was constitutional. The trial court explained that “[i]t would make no sense to allow [the Tomkinses] to bootstrap themselves into a position of being compensated for M-6 when all that’s taken is a narrow strip along Kenowa,” a taking that the trial court concluded was only incidentally related to the M-6 project. Accordingly, the trial court held that the general effects of the M-6 highway project would not be considered in determining the Tomkinses’ just compensation.
MDOT filed a motion for summary disposition under MCR 2.116(0(10) and entry of final judgment, arguing that because the trial court’s order barred the Tomkinses’ $48,200 claim relating to “highway effects” and because both parties had agreed that just compensation for the land actually taken was $3,800, there were no other disputed claims. The Tomkinses stipulated the entry of a final judgment awarding them $3,800, plus statutory interest, expert fees, and attorney fees.
II. MOTION FOR SUMMARY DISPOSITION
A. STANDARD OF REVIEW
Under MCR 2.116(C)(10), a party may move for dismissal of a claim on the grounds that there is no genuine issue with respect to any material fact and that the moving party is entitled to judgment as a matter of law. We review de novo the trial court’s ruling on a motion for summary disposition. Where a motion for summary disposition also challenges the constitutionality of a statute, we also review de novo that question of law. Further, when the decision regarding the admission of evidence involves a preliminary question of law, such as whether a statute precludes the admissibility of the evidence, we review de novo that issue.
B. LAW OF CONDEMNATION AND JUST COMPENSATION
“ ‘Eminent domain’ or ‘condemnation’ is the power of a government to take private property.” The Fifth Amendment of the United States Constitution provides that the federal government may not take private property unless it is done for a public use and with just compensation. The Michigan Constitution contains a similar clause requiring just compensation in these circumstances: “Private property shall not be taken for public use without just compensation ... .” Similarly, the UCEA requires that courts “ascertain and determine just compensation to be made for the acquisition of the [condemned] property.” “This reiteration of the constitutional language is significant because to the degree the Constitution has been construed to outline the nature of ‘just compensation,’ the statute must be similarly construed because no act of the Legislature can take away what the Constitution has given.”
“Just compensation . . . must put the party injured in as good position as he would have been if the injury had not occurred.” In keeping with this principle, the Michigan Supreme Court has held that determination of “just compensation” requires “that the proper amount of compensation for the property takes into account all factors relevant to market value.” The Court further clarified that there was no indication in the UCPA that the Legislature intended to abrogate this established meaning of “just compensation.” “Indeed, to attribute such an intent, i.e., the intent to diminish a constitutional standard by statute, is to place the legislators in the posture of acting unconstitutionally,” which is a construction that the Court will seek to avoid “unless no other construction is possible.” Here, however, we conclude that, under the circumstances of this case, no other construction is possible. Our review of Michigan precedent and other persuasive authority necessitates our conclusion that the limitation on general damages set forth in § 20(2) of the UCEA, as applied to partial taking cases, impermissibly conflicts with the established constitutional meaning of “just compensation.”
A condemnee’s damages are, in general, measured by the fair market value of the property taken. But where only a portion of the whole parcel is taken, it is possible for the remaining property to also suffer dam ages attributable to the taking. In such a case, the value of the property taken is allowed as direct compensation, but the remaining portion’s decrease in value, by virtue of the use made of the property taken, is also allowable as compensation even though this is strictly consequential damage in nature. This diminution in value, or “severance damages,” is measured by calculating the difference between the fair market value of the remaining property before and after the taking. Thus, “[t]he proper measure of damages in a condemnation case involving a partial taking consists of the fair market value of the property taken plus severance damages to the remaining property[.]” Indeed, the Michigan Standard Jury Instructions provide that, in valuing the property left after the taking, a jury should take into account various factors, including
(1) its reduced size, (2) its altered shape, (3) reduced access, (4) any change in utility or desirability of what is left after the taking, (5) the effect of the applicable zoning ordinances on the remaining property, and (6) the use which the [name of condemning authority] intends to make of the property it is acquiring and the effect of that use upon the owner’s remaining property.
And according to the Michigan Supreme Court, “any evidence that would tend to affect the market value of the property as of the date of condemnation is relevante,] ... to the extent that ‘the [evidence] would have affected the price which a willing buyer would have offered for ‘the property just prior to the taking.’ ” However, the rule is not without limitations. An owner should not to be enriched because of the condemnation; thus, “the total damages awarded may not exceed the fair market value of the whole parcel before the taking.”
C. CONSTITUTIONALITY OF MCL 213.70(2)
The plain language of § 20(2) of the UCPA excludes consideration of the general effects of a public project in determining just compensation:
The general effects of a project for which property is taken, whether actual or anticipated, that in varying degrees are experienced by the general public or by property owners from whom no property is taken, shall not be considered in determining just compensation. A special effect of the project on the owner’s property that, standing alone, would constitute a taking of private property under section 2 of article X of the state constitution of 1963 shall be considered in determining just compensation. To the extent that the detrimental effects of a project are considered to determine just compensation, they may be offset by consideration of the beneficial effects of the project.
The Tomkinses argue that general effects limitation in § 20(2) on the just compensation determination is unconstitutional because it is contrary to judicial precedent interpreting just compensation as including con sideration of all relevant factors that may affect the value of the property, including those that are damnum absque injuria, or damage without injury. Thus, in this case of first impression, we are faced with determining whether § 20(2) is impermissibly in conflict with constitutional just compensation principles.
“[A] statute is presumed to be constitutional unless its unconstitutionality is clearly apparent.” The constitutionality of a statute must be determined on the basis of the provisions of the act itself. The party challenging the constitutionality of the statute has the burden of proving the invalidity of the statute.
Under the broad scope of § 20(2), certain “general” damages that are shared in common by the public should not be considered in the determination of just compensation awards. However, this statutory mandate fails to recognize that there is a distinction between liability in inverse condemnation cases and damages in direct, partial condemnation cases. “An inverse or reverse condemnation suit is one instituted by a landowner whose property has been taken for public use ‘without the commencement of condemnation proceedings.’ ” To be liable for a “taking” for purposes of inverse condemnation, the property owner must demonstrate that the government, by its actions, has effectively and permanently deprived the owner of any possession or use of the property. Conversely, by virtue of filing a direct condemnation action, the government is admitting liability, and the only issue is a determination of just compensation.
MDOT relies on Spiek, in which the Michigan Supreme Court considered whether noise, dust, vibration, and fumes experienced by owners of property along an interstate freeway constituted a taking of a recognized property interest where the effects alleged were not unique or peculiar in character. The Court held that the property owners had no constitutional right to compensation for loss in their property values caused by the noise, dust, vibration, and fumes from the new freeway, because to receive just compensation for project effects, the owner must show that the damages are unique, special, peculiar, or in some way different in kind or character from the effects incurred by all property owners who reside next to busy highways and roads. However, the Court carefully limited application of this rule to inverse condemnation cases where there had been no direct or physical invasion of the landowner’s property. Thus, the Spiek ruling is not binding on condemnation cases involving partial takings. Accordingly, we conclude that the Spiek ruling does not require that a landowner who suffers severance damages from a partial taking demonstrate damages to the remaining land that are special or “different in kind” from those suffered by other nearby landowners.
MDOT also relies on In re Ziegler, in which the Michigan Supreme Court held that property owners were not entitled to damages for the diminution in value of their own property resulting from the taking of their neighbor’s property, not their own. The Court explained:
It was only for the taking of a part of their own land that [the defendants] would be entitled to receive just compensation for the damages to the remainder, and the extent of recovery may not be thereby enlarged so as to include items otherwise not compensahle[, such as] . . . diminution in the value of the remainder caused by the acquisition of the adjoining lands of others for the same undertaking.
However, Ziegler is distinguishable from the present case. In Ziegler, the landowners claimed, in part, that their just compensation award “should include the damage to them resulting from the taking of the adjoining land of their neighbor to the south[.]” But the Tomkinses, unlike the landowners in Ziegler, are not directly claiming damages from the taking of their neighbors’ land; rather, they are claiming diminution in the value of their own remaining land from the M-6 highway construction project for which, arguably, part of their land was taken.
MDOT additionally relies on State v Schmidt, cited by the Michigan Supreme Court in n 14 of Spiek. In Schmidt, the Texas Supreme Court rejected the property owner’s argument that the determination of just compensation is different depending on whether a part of the property owner’s land is condemned for a public project, or whether the owner seeks damages in an inverse condemnation case. Specifically, the Texas Supreme Court opined:
The argument that a different rule applies in condemnation cases and inverse condemnation cases, does not find support in our decisions. To the contrary, our decisions have uniformly refused to allow severance damages based upon diversion of traffic and circuity of travel.. ..
Thus, we have refused to allow recovery for loss of value due to diversion of traffic and circuity of travel in both condemnation cases. We have not considered whether severance damages should be allowed because of impaired visibility of property or disruption of use due to construction activities, but there is no reason why these two elements of injury should be treated differently than the others.
While noting that we are not bound to follow the merely persuasive authority of Schmidt, we also note that contrary to the Schmidt holding, a number of our sister states have made clear that the “different in kind” limitation does not apply to cases involving direct appropriations of partial parcels. Notably, for example, in Los Angeles Co, Metro Transportation Auth v Continental Dev Corp, 16 Cal 4th 694, 712; 66 Cal Rptr 2d 630; 941 P2d 809 (1997), the California Supreme Court explained that “[severance damages are not limited to special and direct damages, but can be based on any factor, resulting from the project, that causes a decline in the fair market value of the property.... [T]he landowner seeking severance damages need only prove the value of his or her property has been impaired, not that other members of the public are not similarly affected.” Thus, it is reasonable for us also to reach the conclusion that a different rule for just compensation does indeed apply in direct, partial condemnation cases as opposed to inverse condemnation cases, and we do so conclude today. Accordingly, we hold that the § 20(2) limitation on general damages, as applied to partial takings cases, impermissibly conflicts with the established constitutional meaning of “just compensation,” which requires that any and all factors relevant to market value be taken into consideration when determining the difference in the remaining property’s value before and after the taking.
D. APPLICATION OF THE LAW
Turning to the facts of the present case, we reiterate that “any evidence that would tend to affect the market value of the property as of the date of condemnation is relevant[,] ... to the extent that ‘the [evidence] would have affected the price which a willing buyer would have offered for the property just prior to the taking.’ ” In a partial taking case, considerations that will affect the price that a willing buyer would offer for the land include any changes in utility or desirability of what is left after the taking, which is logically dependent on the use intended for the property acquired by the government and the related effects of that use on the owner’s remaining property. Stated in another way, in a partial taking case the only way to fulfill the objective of just compensation for reductions in the value of the remainder parcel is to determine the damages traceable to the creation of the project for which the land was condemned.
In Campbell v United States, the United States Supreme Court held that a diminution in value of property remaining after a partial taking caused by the acquisition of adjoining lands for public use is not a compensable damage. In Campbell, the federal government condemned a portion of the owner’s land for construction of a nitrate plant, and the owner sought compensation for the diminution in value that he claimed would occur to the remainder of his property. The Campbell Court held, however, that the owner was not entitled to compensation for diminution in value to his remaining property to the extent that other nearby property owners would experience the same diminution, although in varying degrees, caused by the taking of their land for the same construction project. However, the Campbell Court also noted that
[t]he land taken from the plaintiff was not shown to be indispensable to the construction of the nitrate plant or to the proposed use of the other lands acquired hy the United States. The damages resulting to the remainder from the taking of a part were separable from those caused by the use to be made of the lands acquired from others.
On the basis of this language, a number of courts have recognized an exception to the Campbell rule, which, absent an exception, disallows compensation for damages to the remainder of a parcel arising out of the entire project and limits recoverable damages to those suffered by the remainder as a direct result of the partial taking itself.
In Andrews v Cox, the Connecticut Supreme Court elucidated the exception as follows: “[W]here the use of the land taken constitutes an integral and inseparable part of a single use to which the land taken and other adjoining land is put, the effect of the whole improvement is properly to be considered in estimating the depreciation in value of the remaining land.” In Crookston, the Minnesota Supreme Court similarly ruled that
to the extent that... a part of an owner’s land is taken for a public improvement..., and the part taken ‘constitutes an integral and inseparable part of a single use to which the land taken and other adjoining land is put,’ the owner is entitled to recover the full damage to his remaining property due to such public improvement, even though portions of the public improvement are located on land taken from surrounding owners.
In light of this “integral and inseparable” exception, the Tomkinses argue that the use of the part of their property taken along Kenowa Avenue for the construction of an overpass was an integral and inseparable part of the M-6 construction project. Therefore, the Tomkinses argue, the general effects of the M-6 highway should be considered in estimating the depreciation in the value of their remaining land.
MDOT contests the Tomkinses’ claim and argues that the Kenowa overpass was merely incidental to the M-6 project. While MDOT concedes that the land it acquired from the Tomkinses along Kenowa was part of the M-6 project, it contends that any damage resulting from the M-6 highway effect “was clearly separable from that occasioned by the loss of the strip of their own tract.” But this statement misinterprets the integral and inseparable exception. Contrary to MDOT’s interpretation, the exception does not come into play when the damages to the remainder parcel from the partial taking itself can be separated from any damages resulting from the whole project. Rather, the exception applies where the part taken constitutes an integral and inseparable part of the whole improvement for which the part was taken. Thus, the relevant inquiry here is whether the Kenowa overpass constitutes an integral and inseparable part of the M-6 project.
Considering the integral and inseparable inquiry, we note that in MDOT’s condemnation complaint it specifically alleged that “the property ... is being acquired for a necessary public improvement, namely the relocating, establishing, opening and/or improvement of Highway M-6 in Kent, Michigan.” And on appeal MDOT concedes, “As part of the [M-6 highway] project, MDOT needed to construct various bridges to continue existing county roads over the new M-6 roadway.” (Emphasis added.) We further note that case law from other jurisdictions indicates that a project that is integrated into construction of a highway is an integral and inseparable part of the whole improvement, and the property owner is entitled to just compensation for the full depreciation of the remainder due to the highway project. In Bloom, supra at 461, the South Dakota Supreme Court concluded that, “where a part of an owner’s parcel or tract of land is taken for a public improvement such as a public highway, the owner is entitled to be compensated for the part taken and for consequential damage to the part not taken, even though the consequential damage is of a kind suffered by the public in common.” However, whether the use of a part taken is, in fact, an integral and inseparable part of the whole improvement generally presents a question to be determined by a trier of fact.
Given that the record provided does not include sufficient argument or evidence on the question of the relationship of the Kenowa overpass to the M-6 project (that is, whether it was indeed integral and inseparable, or separable) we conclude that the prudent course of action is to remand this action for further briefing and production of evidentiary support, if any, on this question. If, on remand, the trial court concludes that there is no question of fact that the Kenowa overpass was merely incidental to the M-6 highway, then summary disposition is appropriate and the prior final order should be reaffirmed. “[Wjhere the use of the part taken is found to be separable, consequential damages should be allowed only for the use of the part taken ... ,” But if there is a question of fact and, on further proceedings, a trier of fact determines that the Kenowa overpass was an integral and inseparable part of the M-6 improvement, then the matter should proceed to allow a trier of fact to consider the experts’ testimony regarding the proper just compensation of the remainder that takes into account all relevant factors affecting its market value.
We reverse and remand for further proceedings consistent with this opinion. We retain jurisdiction.
MCL 213.70(2).
Spiek v Dep’t of Transportation, 456 Mich 331; 572 NW2d 201 (1998).
Spiek, supra at 337.
McDougall v Schanz, 461 Mich 15, 23; 597 NW2d 148 (1999).
People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999).
Silver Creek Drain Dist v Extrusions Div, Inc, 468 Mich 367, 373; 663 NW2d 436 (2003).
Id. at 374.
Const 1963, art 10, § 2; Silver Creek, supra at 374.
MCL 213.55(1).
Silver Creek, supra at 374.
State Hwy Comm’r v Eilender, 362 Mich 697, 699; 108 NW2d 755 (1961).
Silver Creek, supra at 378-379; see In re Widening of Gratiot Avenue, 294 Mich 569, 574-575; 293 NW 755 (1940) (explaining pre-1963 interpretation of “just compensation” relating to leasehold estates).
Silver Creek, supra at 379.
Id.
Dep’t of Transportation v Sherburn, 196 Mich App 301, 304; 492 NW2d 517 (1992).
Johnstone v Detroit, G H & M R Co, 245 Mich 65, 81; 222 NW 325 (1928) ; Sherbum, supra at 305. We do not consider the “cost-to-cure” method in this case because it has not been alleged that the damages to the remaining property could be cured by the property owners taking some action to rectify some or all of the injuries sustained as a result of the taking. See Sherbum, supra at 305.
In re Widening of Fulton Street, 248 Mich 13, 20-21; 226 NW 690 (1929) ; Johnstone, supra at 81; see also Bauman v Ross, 167 US 548, 574-575, 580; 17 S Ct 966; 42 L Ed 270 (1897).
Sherbum, supra at 305; State Hwy Comm v Minckler, 62 Mich App 273, 277; 233 NW2d 527 (1975); see also M Civ JI 90.12.
Sherbum, supra at 306.
20 M Civ JI 90.12.
Dep’t of Transportation v VanElslander, 460 Mich 127, 130; 594 NW2d 841 (1999), quoting Eilender, supra at 699 (emphasis added); see United States v Meadow Brook Club, 259 F2d 41, 45 (CA 2, 1958); Minckler, supra at 277.
Sherbum, supra at 306.
23 MCL 213.70(2).
McDougall, supra at 24.
Judicial Attorneys Ass’n v Michigan, 459 Mich 291, 304; 586 NW2d 894 (1998).
In re Trejo Minors, 462 Mich 341, 355; 612 NW2d 407 (2000).
See Pesick, Eminent domain: Calculating just compensation in partial taking condemnation cases, 82 Mich B J 37-38 (Dec, 2003).
Electro-Tech, Inc v H F Campbell Co, 433 Mich 57, 88-89; 445 NW2d 61 (1989), quoting Hart v Detroit, 416 Mich 488, 494; 331 NW2d 438 (1982).
Electro-Tech, supra at 89; Hart, supra at 501-502; see Pesick, p 37.
Pesick, p 37.
Spiek v Dep’t of Transportation, supra at 332.
Id. at 333, 339.
Id. at 339-345; see Ackerman & Yanich, Just compensation and the framers’ intent: A constitutional approach to road construction damages in partial taking cases, 77 U Det Mercy L R 241, 253-254 (2000).
Ackerman & Yanich, p 254.
id.
36 In re State Hwy Comm’rs, 326 Mich 183, 188-189; 40 NW2d 111 (1949) (citations omitted); see also Charles Murphy, MD, PC v Detroit, 201 Mich App 54, 57; 506 NW2d 5 (1993) (in which the plaintiff was denied his claim of diminished value to his land from the taking of adjacent land.)
In re State Hwy Comm’r, supra at 186.
See our discussion of the purpose of a taking in part C.
State v Schmidt, 867 SW2d 769 (Tex, 1993).
Spiek, supra at 348 n 14.
Schmidt, supra at 776-777.
42 Id.
Arkansas Hwy Comm v Kesner, 239 Ark 270, 277; 388 SW2d 905 (1965); La Plata Electric Ass’n, Inc v Cummins, 728 P2d 696, 700 (Col, 1986) (stating that “the general damage/special damage distinction has no validity ... when reduction in property value results from a taking of a portion of the land held by the property owner.”); Commonwealth Dep’t of Hwys v Curtis, 385 SW2d 48, 51 (Ky App, 1964) (“[A] reduction in the value of residential property as a consequence of a highway’s being brought in close proximity to it may be considered as an element of condemnation damages.”); Missouri P R Co v Nicholson, 460 So 2d 615, 627 (La App, 1984) (“[Ajesthetie considerations, unsightliness of the particular project, excessive noise, an inherent fear of living in close proximity to the particular project, in conjunction with other proven factors,... can support an award for severance damages, if these factors serve to reduce the value of the remainder of the property.”); City of Crookston v Erickson, 244 Minn 321, 325; 69 NW2d 909 (1955) (stating that where there is a partial taking, “It is sufficient that the damage is shown to have been caused by the taking of part of [the] property even though it is damage of a type suffered by the public as a whole.”); New Jersey v Elizabeth Bd of Ed, 116 NJ Super 305, 314; 282 A2d 71 (1971) (stating that where there are damages to the remainder when part of a tract is physically appropriated, “it matters not that the injury is suffered in common with the general public.”); South Dakota Hwy Comm v Bloom, 77 SD 452, 461; 93 NW2d 572 (1958) (“[W]here a part of an owner’s parcel or tract of land is taken for a public improvement such as a public highway, the owner is entitled to be compensated for the part taken and for consequential damage to the part not taken, even though the consequential damage is of a kind suffered by the public in common.”); Yakima v Dahlin, 5 Wash App 129, 131-132; 485 P2d 628 (1971).
2A Nichols, Eminent Domain (3d ed), § 6.08[2], pp 6-129, 6-130 (“In the severance damage context, it is occasionally noted that any diminution in value to the remainder parcel is compensable if it is directly attributable to the taking, regardless of the existence or non-existence of similar damage to neighboring properties.”)
See Silver Creek, supra at 377-379; VanElslander, supra at 130; 2 Official Record, Constitutional Convention 1961, pp 2581-2587.
VanElslander, supra at 130 (citations deleted).
M Civ JI 90.12.
Ackerman & Yanich, p 244.
Campbell v United States, 266 US 368, 371-372; 45 S Ct 115; 69 L Ed 328 (1924).
Id. at 369.
Id. at 371-372.
52 Id. at 371.
Andrews v Cox, 129 Conn 475, 482; 29 A2d 587 (1942); see also Crookston, supra at 327.
54 Crookston, supra at 327; see also Bloom, supra at 463; Elizabeth Bd of Ed, supra at 315.
Andrews, supra at 482; Crookston, supra at 327-328.
Id.
See, e.g., Curtis, supra at 51 (“[A] reduction in the value of residential property as a consequence of a highway’s being brought in close proximity to it may be considered as an element of condemnation damages.”); Missouri P R Co, supra at 627 (“[Ajesthetic considerations, unsightliness of the particular project, excessive noise, an inherent fear of living in close proximity to the particular project, in conjunction with other proven factors,... can support an award for severance damages, if these factors serve to reduce the value of the remainder of the property.”); 4A Nichols, Eminent Domain (3d ed), § 14A.03(1), pp 14A-38, 14A-39 (“The effect of a partial taking upon the ‘amenities’ of the owner’s remainder must be considered. The term ‘amenities’ relates to those events or circumstances which impact the enjoyment of property.... Amenities include noise, loss of view or privacy, inconvenience of access, and odors.”) | [
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FER CURIAM.
Flaintiffs appeal by leave granted the circuit court’s denial of a motion for mandamus to compel defendant’s clerk to submit Mark Grabow’s application for a use variance to defendant’s zoning board of appeals. We reverse and remand for further proceedings consistent with this opinion.
I. BASIC FACTS AND PROCEDURE
Flaintiffs Simonne L. Grabow and Mark H. Grabow are mother and son who own adjacent properties in Macomb Township along 25 Mile Road. Mark Grabow operates Brentwood Limousine, Inc., both from his property and from a pole barn located on his mother’s property. In January, 2003, defendant’s ordinance enforcement officer initiated a misdemeanor complaint against Mark Grabow for operating his business and erecting a structure for a commercial use on land zoned for agricultural use. In July 2003, Mark Grabow applied for a use variance, submitting his application to defendant’s clerk. In August 2003 defendant’s clerk returned the application, stating that, after an analysis of applicable law by the township’s attorney, neither state statute nor township ordinance allowed defendant’s zoning board of appeals (ZBA) to grant a use variance.
In September, 2003, plaintiffs filed suit against defendant. Plaintiffs sought, among other things, a writ of mandamus to compel defendant’s clerk to accept Mark Grabow’s use variance application and that the township ZBA approve or reject it following a public hearing. In October, 2003, defendant moved for summary disposition, arguing that the case was not ripe for judicial review because plaintiffs did not apply to have the property rezoned for a commercial use. In November 2003, plaintiffs moved for defendant to show cause why a writ of mandamus should not be issued to compel its clerk to accept and its ZBA to decide Mark Grabow’s application for a use variance. In December 2003, the trial court denied both motions and instructed plaintiffs to seek rezoning. In April 2004, following a public hearing on Mark Grabow’s application for rezoning, defendant’s board of trustees denied Mark Grabow’s application to have the property rezoned to a commercial use, but the property was rezoned to a residential use. In June 2004, plaintiffs filed a renewed motion for defendant to show cause why a writ of mandamus should not be granted to compel its ZBA to accept and decide Mark Grabow’s application for a use variance. The lowercourt — with no statutory analysis on the record —denied the motion, stating “there’s clearly an ambiguity as to whether or not there’s a clear legal right, based on the [Township Zoning Act, MCL 125.271 et seq.] and the case law” for granting mandamus:
The Township Enabling Act [sic] does not give the township authority to grant use variances. And I appreciate counsel’s argument that following Paragon and Janson [sic] it seems to assume that that right and authority does exist for townships.
However, to the extent that our Court of Appeals and Supreme Court [look] at every statute word by word and interprets them that way, and there is not a specific granting of use variance in the statute, I do believe that the writ of mandamus is not appropriate at this time. The [Janssen] case didn’t question, argue, brief, or even decide whether or not the use variance was appropriate. Although [it] certainly seem[s] to assume that in coming to the decision that [it] did. So it would be curious to see how the Court of Appeals is going to reconcile [its] text or elicit [sic] approach with the cases that have been decided recently, Paragon and [Janssen].
Also, — so to — to the extent that the mandamus is and should be issued if there’s a clear legal right, there’s clearly an ambiguity as to whether or not there is a clear legal right, based on the statute and the case law. So for that reason, I’m going to deny the writ of mandamus.
This appeal followed.
II. ANALYSIS
Plaintiffs argue that the trial court abused its discretion in not granting their motion for a writ of manda mus, because state law and the township ordinance authorize use variances and, as such, defendant’s clerk had a clear legal duty to accept and submit to defendant’s ZBA Mark Grabow’s application. We agree.
A. STANDARD OF REVIEW
A trial court’s decision regarding a writ of mandamus is reviewed for an abuse of discretion. In re MCI Telecom Complaint, 460 Mich 396, 443; 596 NW2d 164 (1999); however, “[w]here a central issue in the appeal involves statutory interpretation, which is a question of law, that is reviewed de novo.” Id. Because the central issue in this appeal is whether defendant’s ZBA has authority to grant a use variance under the Township Zoning Act, MCL 125.271 et seq., review de novo is proper.
B. MANDAMUS
It is well-settled that, for a writ of mandamus to issue, a plaintiff must prove he or she has “a ‘clear legal right to performance of the specific duty sought to be compelled’ and that the defendant has a ‘clear legal duty to perform such act....’” In re MCI, supra, at 442-443, quoting Toan v McGinn, 271 Mich 28, 34; 260 NW 108 (1935). The act must be ministerial, and the plaintiff must be without other adequate legal or equitable remedy. Lickfeldt v Dep’t of Corrections, 247 Mich App 299, 302; 636 NW2d 272 (2001).
1. MARK GRABOW HAS A CLEAR LEGAL RIGHT TO FILE AN APPLICATION FOR A USE VARIANCE WITH THE TOWNSHIP ZBA AND THE TOWNSHIP ZBA IS UNDER A CLEAR LEGAL DUTY TO HEAR AND DECIDE MARK GRABOW’S APPLICATION FOR A USE VARIANCE
a. THE TOWNSHIP ZONING ACT
Michigan’s Township Zoning Act (TZA) authorizes a township board to “provide by zoning ordinance for the regulation of land development and the establishment of districts in the portions of the township outside the limits of cities and villages which regulate the use of land and structures . . . MCL 125.271. The TZA authorizes, among other things, a township zoning ordinance, MCL 125.273; a zoning board, MCL 125.274; and a board of appeals, MCL 125.288. The act is “the enabling statute that vests a township with the authority to regulate land use.” Sun Communities v Leroy Twp, 241 Mich App 665, 669; 617 NW2d 42 (2000), citing Addison Twp v Gout (On Rehearing), 435 Mich 809, 813; 460 NW2d 215 (1990).
Relevant here, MCL 125.290 of the TZA sets parameters for a township zoning board of appeals. It reads, in pertinent part:
(1) The township board of appeals shall hear and decide questions that arise in the administration of the zoning ordinance, including the interpretation of the zoning maps, and may adopt rules to govern its procedures sitting as a board of appeals. It shall hear and decide appeals from and review any order, requirement, decision, or determination made by an administrative official or body charged with enforcement of an ordinance adopted pursuant to this act. It shall hear and decide matters referred to it or upon which it is required to pass under an ordinance adopted pursuant to this act....
(2) The concurring vote of a majority of the members of the township board of appeals is necessary to reverse an order, requirement, decision, or determination of the ad ministrative official or body, or to decide in favor of the applicant any matter upon which the board is required to pass under the ordinance, or to grant a variance in the ordinance. [Emphasis added.]
We give the statutory language its plain meaning, and, as such, determine that MCL 125.290 mandates hearings and authorizes the issuance of variances upon application as guided by both state statute and the township zoning ordinance, if any.
b. MACOMB TOWNSHIP ZONING ORDINANCE
Macomb Township has a zoning ordinance adopted pursuant to the TZA. The ordinance requires the township’s ZBA to hear and determine applications for variances. Section 10.2405, “Variance Review Procedures,” states, in pertinent parts with emphasis added:
C. The application shall be accompanied by an affidavit executed by the applicant explaining:
4. Why the requested variance will not confer special privileges that are denied other properties that are similarly situated and which are located in the same Zoning District.
D. Notice of the public hearing shell be sent by first class mail....
The notice shall:
1. Describe the nature of the variance request.
2. Indicate the property which is the subject of the variance request....
Indeed, defendant’s zoning ordinance, §10.2405, uses the word “variance” in at least seven other places, including and concluding with ¶ N, which states: “All variances granted shall be recorded with the Township Assessing Department.”
c. THE TOWNSHIP ZBA HAS AUTHORITY TO GRANT USE VARIANCES
The trial court concluded that the TZA is ambiguous and, therefore, could not support a clear legal duty on the part of the township ZBA to consider a use variance. The trial court incorrectly interpreted the TZA and, in any event, applied an incorrect standard:
The question that must be determined is whether the defendant has complied with the legal mandate which the statute has imposed upon it. Defendant cannot escape the mandamus action by saying its interpretation of the statute makes the statute ambiguous and hence mandamus will not he.... [Manistique Area Schools v State Bd of Ed, 18 Mich App 519, 522; 171 NW2d 568 (1969), citing Belding v Ionia Co Treasurer, 360 Mich 336; 103 NW2d 621 (I960).]
We conclude that the language of the TZA is unambiguous with regard to the duties imposed on, and powers granted to, a township ZBA as implemented through the township ordinance. “It shall hear and decide matters referred to it or upon which it is required to pass under an ordinance adopted pursuant to this act.” MCL 125.290(1) (emphasis added). See also MCL 125.290(2).
When construing a statute, “[a] necessary corollary to the plain meaning rule is that courts should give the ordinary and accepted meaning to the mandatory word ‘shall’ and the permissive word ‘may’ unless to do so would clearly frustrate legislative intent as evidenced by other statutory language or by reading the statute as a whole.” Browder v Int’l Fidelity Ins Co, 413 Mich 603, 612; 321 NW2d 668 (1982). Thus, if an ordinance adopted pursuant to the TZA indicates a matter upon which the township ZBA is required to pass, then the ZBA “shall hear and decide” that matter.
Here, as indicated above, defendant’s zoning ordinance sets up a formal procedure whereby a landowner in the township may apply for a use variance. See §10.2405, “Variance Review Procedures.” Thus, we conclude that Mark Grabow has a right to file his application for a use variance with the township ZBA, which is empowered to hear and decide Mark Grabow’s application for a use variance. Given the language of the statute and ordinance at issue in this case, no other conclusion is possible but that defendant’s ZBA may grant use variances upon an application.
2. THE TOWNSHIP CLERK’S OBLIGATION TO FORWARD MARK GRABOW’S APPLICATION FOR A USE VARIANCE IS A MINISTERIAL ACT
Having concluded that Mark Grabow has a clear legal right to have his application for zoning variance filed before the township ZBA and that the township ZBA is duty bound to hear and decide Mark Grabow’s application, the only relevant question remaining is whether a writ of mandamus should be ordered with respect to defendant’s clerk’s refusal to submit Mark Grabow’s application for a variance to the township ZBA.
In general, municipal clerks are charged only with-ministerial duties and do not have judicial authority to perform such functions as statutory construction. See Smeets v Genesee Co Clerk, 193 Mich App 628, 636; 484 NW2d 770 (1992). In Smeets, this Court determined that a county clerk was not required to accept a petitioner’s version of his duties regarding recall petitions when the duties under the pertinent statute were open to question.
In a more recent case, this Court observed that court rules, statutes, and the Michigan Constitution prescribe the duties of a county clerk, an elected official. Howard v Bouwman, 251 Mich App 136, 144; 650 NW2d 114 (2002). Because no court rule or statute gave a clerk discretion to reject a pleading that did not conform to caption requirements in a court rule, but rather, in plain terms, required the clerk to endorse every paper on the date on which it was filed, this Court concluded that the county clerk lacked the authority to reject a nonconforming complaint.
Township clerks are similarly elected officials subject to duties imposed by law. “In each organized township there shall be elected ... a clerk .. . whose legislative and administrative powers and duties shall be provided by law.” Const 1963, art 7, § 18. The township clerk has duties prescribed by statute, which include filing and safely keeping papers required by law to be filed in his or her office. MCL 41.65.
The only duty established by the ordinance is the applicant’s duty to submit a proper application for a variance to the clerk:
A. An application for a hearing shall be made, by the owner of record of the property, to the Township Clerk, accompanied by the necessary fees and documents as provided in this Ordinance. [Macomb Twp Zoning Ordinance § 10.2405.]
The variance review procedure in § 10.2405 does not address the clerk’s duties after receiving the application. However, because we determine that plaintiffs have a clear legal right to apply for a use variance and that defendant’s ZBA has a clear legal duty to hear and decide that application, the clerk, here, is an intermediary and is without discretion to return the application on the basis of the clerk’s interpretation of the relevant statute and ordinance. There is no indication that the clerk refused the application because it failed to comply with reasonable form requirements imposed by the clerk’s office, i.e., documents were missing or the application was otherwise incomplete. For this reason, we reject the claim that the clerk was acting within his duties when he rejected Mark Grabow’s application for a use variance.
III. CONCLUSION
We conclude that plaintiff has a clear legal right to file an application for the use variance, that defendant’s ZBA has a clear legal duty to hear and decide the application; and that the clerk’s duties are ministerial. We reverse the trial court’s decision and remand for further proceedings consistent with this opinion.
We do not retain jurisdiction.
1 Paragon Properties Co v Novi, 452 Mich 568; 550 NW2d 772 (1996).
2 Janssen v Holland Charter Twp Zoning Bd of Appeals, 252 Mich App 197; 651 NW2d 464 (2002).
Generally there are two types of variances, use and nonuse. “Use variances permit a use of the land which the zoning ordinance otherwise proscribes. Non-use variances are not concerned with the use of the land but, rather, with changes in a structure’s area, height, setback, and the like.’’ Nat’l Boatland, Inc v Farmington Hills Zoning Bd of Appeals, 146 Mich App 380, 387; 380 NW2d 472 (1985). This case involves a claim for a use variance.
"An officer of the state or governmental unit must he sued in the officer’s official capacity to enforce the performance of an official duty.” MCR 2.201(C)(5); see also MCL 600.2051(4). As such, the proper defendant in an action for a writ of mandamus is the officer who has the duty of performance. See Boron Oil Co v Southfield, 18 Mich App 135, 144; 170 NW2d 517 (1969). Here, plaintiffs action is not against the township clerk. Instead, plaintiffs have sued the township. Defendant has not defended this action below or on appeal on the basis that the plaintiffs named the wrong party. On remand, plaintiffs may move to amend their pleadings to name the appropriate party. See Boron, supra at 144. | [
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] |
Cooley, J.
None of the evidence received on the trial was foreign to the issue except that of the officer Sullivan that he found a small amount of money on the prisoner’s person; and it is impossible to conceive that that could have worked any prejudice to the prisoner. All the rest had a direct tendency, more or less strong, to support the theory of the prosecution. That theory was that Winslow & Parker, by a false show of business, a false pretense of being about to engage in other business, and by' other fraudulent devices to give color to assurances that a situation could and would be procured for Nicholas, had succeeded in defrauding him of his money. The evidence that the conspirators had engaged offices for which they paid no rent was not, as is argued on the part of the prisoner, put- in to show that they had been guilty of frauds or wrongs of any sort upon others, but as a part of the showing that the appearances by which Nicholas was deceived were wholly fictitious and fraudulent. It is not necessary in a case of this sort to set forth in the information the false pretenses by which the offense was accomplished; People. v. Clark, 10 Mich., 310; nor in the proof of them can the prosecution be restricted to the exact transaction as it took place between the prosecutor and the accused: the preparation for the crime is often more significant in demonstrating the intent than -are the circumstances in which the prosecutor has been an actor; and the transaction appears innocent until the preparation is exposed which led to it.
Nor can the conspirators escape responsibility for the fraud because they accomplished it by means of a promise. The promise was accompanied by assurances of Winslow’s confidence in his ability to procure the desired situation, which evidently referred to a situation in Parker’s proposed business, and which the jury must have found were wholly baseless. The promise was therefore accompanied by a false assertion of confidence, as well as by various false and fictitious devices calculated to win confidence in it. The case of Ranney v. People, 22 N. Y., 413, is called to our attention, but we cannot concur in its reasoning. - _ A false assertion that one has a position to give out, or one in mind which he can fill, is as much within the statute, in our opinion, as any other falsehood by means of which one is induced to part with his property; and some accompanying promise is in many cases of false pretenses a matter of course.
It is probable the prisoner had reasonable complaint of the language employed by the public prosecutor in his address to the jury; but we cannot correct such faults on writ of error. The trial court should restrain counsel within due limits, and it is to be assumed that this will be done.
The Recorder’s Court must be advised to proceed to judgment on the verdict.
The other Justices concurred.
The record states that counsel for "the People in concluding his address to the jury used this language: “It seems to me, gentlemen, that the only inference you can draw from the acts of these men "Winslow and Parker, is that they are the lowest of the low dead beats.” The counsel for the respondent interposed and insisted that this was not proper language to be used. The attention of the judge was called to the language and counsel for the respondent requested the court to prohibit the counsel from using language of that character, The court declined to make any ruling and counsel for the respondent excepted. | [
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] |
Graves, J.
In the fall of 1871 a claim in favor of the firm of Ayres, Learned & Wiswall arose against plaintiffs in error for four dollars per thousand feet upon a quantity of pine saw logs delivered by the firm to plaintiffs in error under an agreement for their delivery subject to that drawback, to replace others the firm had cut on lands of the plaintiffs in error. The members of the firm in whose favor 'the claim arose were Ebenezer Wiswall, Charles G. Learned and defendant in error Frederick S. Ayres. November 6, 1871, this firm was succeeded by that of “ Ayres, Learned & Co.,” composed of Frederick S. Ayres, Jonas E. Learned and James S. Ayres, and this again on the 24th of October, 1874, by the firm of “Ayres & Co.,” composed of defendants in error. In 1877 these parties assuming to own the claim in question ■ brought this action upon it and recovered. The other parties brought error.
First. We think the objection that there was no evidence of the passage of the interest of Charles G. Learned to defendants in error is untenable. The conduct of the parties and the surrounding circumstances import that they supposed his right in the personalty including things in action was made over, and they likewise import that they actually applied the acts of conveyance on that basis. If their minds concurred in designing such a transfer, and they were satisfied it was consummated and have remained content, there is small chance for the plaintiffs in error to contest it. There is no evidence that Charles Gf. Learned does not acquiesce, or any evidence of an outstanding hostile title.
The tenor of the instrument dated October 20, 1874, in which Charles G. and Jonas E. Learned joined is not only consistent with the practical construction, but is very indicative of the same sense. The face of it shows that the expression “'personal property” in the clause of conveyance was used in a form designed to include “credits” or rights of action, and therefore to embrace the interest in this item.
Notwithstanding the repeated shifts of ownership of individual interests in the personal assets, the purpose seems to have been unvaried that all the interests in any item should be vested and kept in whatever firm occupied the place of the original concern, and the firm of “Ayres, Learned & Co.” and of “Ayres & Co.” seem to have come successively into that position. Whilst, then, the record contains evidence of the passage of Charles G. Learned’s interest and of its vesting in defendants in error, there is none of a contrary bearing.
Second. Plaintiffs in error offered to show by way of set-off a demand in their favor for moving certain logs of “Ayres, Learned & Wiswall” in the Pinnepog river in the season of 1871 pursuant to the act of 1861 as amended in 1863 to regulate the “floating of logs and timbers in the streams of this State” (Sess. L. 1863, p. 374): and a further demand in their favor for moving logs of “Ayres, Learned & Go.” in the same river in the season of 1872 and pursuant to the same law. Upon objection by defendants in error the court ruled against the offer.
Assuming that all the conditions were present to generate a liability under this statute, were the demands enforceable under the set-off law? If they were not, the ruling was correct. In order to decide upon this it is necessary to consider' of what nature the demand is on which this statute impresses the right of enforcement, and whether the statute of set-off fairly comprehends it.
The right of set-off at law is given and limited by statute. The common law never recognized it. Bac. Ab., tit. “ Set-off.” The provisions concerning set-off must therefore be consulted to see in what cases and in what circumstances the right is admitted. Unless a case is positively embraced by 'the specifications enacted by the Legislature, the remedy is absolutely denied and the claim will remain to be separately enforced as though there were no such statute.
Now the first pre-requisite under the law allowing set-off is that the demand has arisen “upon judgment, or upon contract express or implied” (Comp. L., § 5796, subd. 1), and unless it has originated in one of these ways it is incapable of being set off. The demands in question did not arise on judgment or upon express contract. So much may be taken for granted. If then, they were capable of being set off, it must be because they arose on implied contract. Did they originate in that way? The question is not whether they constituted assumpsits in some metaphorical or artificial sense, — whether under the license allowed in modern times in applying forms of action they might not be sued in assumpsit, — but it is whether in the sense of the statute of set-off they were causes of action on true implied contract.
In early times the want of a common law remedy suited to cases of non-performance of simple promises caused frequent recourse to equity for relief: but at length in the 21st of Henry YII it was settled by the judges that an action on the case would lie as well for non-feasance as for malfeasance, and in that ■wayassumpsit was introduced. In theory it was an action to recover for non-performance of simple contracts and the formula and proceedings were constructed and carried on accordingly. Yery early there were successful efforts to apply it beyond its import, and from the reign of Elizabeth “this action has been extended” — as Mr. Spence informs us — “‘conscience encroaching on the common law’ — to almost every case where an obligation arises from natural reason, and the just construction of law, that is, quasi ex contractu;” and is now maintained in many cases which its principles do not comprehend and where fictions and intendments are resorted to, to fit the actual cause of action to the theory of the remedy. It is thus sanctioned where there has been no actual assumpsit — no real contract— but where some duty is deemed sufficient to justify the court in imputing a promise to perform it and hence in bending the transaction to the form of action. 1 Spence Eq. Jur., 243, 244, 245; Hosmer v. Wilson, 7 Mich., 294; Ward v. Warner, 8 id., 508; Watson v. Stever, 25 id., 386, and other cases in this court.
This tendency to apply assumpsit to causes of action foreign to its original spirit and design is apparent in our legislation. The statute allows it to be brought on judgments and sealed instruments (Comp. L., § 6194), also for penalties and forfeitures (§ 6841), and by commissioners of highways for expenses laid out on bridges required to be maintained by private parties (§ 1311). There are other instances in the laws.
The arbitrary use which has been made of the action has caused many -incongruities and no little confusion. The practice of strained constructions and the invention of fictions and intendments to subject causes of action to the remedy which were foreign to it, has led somewhat to a confounding of transactions which are not contracts with those which are and to a neglect of obvious and necessary distinctions. But it may be observed in passing that it is not the only occasion where inaccuracies have been generated by a too close adherence to the plan of studying causes of action through the forms of action. The circumstance that a cause of action in point of fact not ex contractu is allowed to be sued in assumpsit and to be described as matter of contract and to be loosely spoken of as implied contract is of no more force to fix its actual character contrary to the truth than is the allegation of loss and finding in trover to convey the sense of a literal loss and finding. Permission to apply the action to a transaction not involving any real contract relation between the parties cannot change the true nature of the transaction and transform it into matter of contract. Courts cannot make contracts for parties. And the fictions and intendments permitted for the sake of the remedy are explainable whenever necessary.
It seems scarcely necessary to add that the determination by a majority of the court (Chapman v. Keystone &c. Co., 20 Mich., 358) that the party moving logs as contemplated by the first section of the act of 1861 as amended in 1863, acquires a distinct right of action against the log owners enforcible in assumpsit, is of no force whatever to show that such a demand arises on implied contract.
Neither an express contract nor one by implication can come into existence unless the parties sustain contract relations, and the difference between the two forms consists in the mode of substantiation and not in the nature of the thing itself. Marzetti v. Williams, 1 B. & Ad., 415; Beirne v. Dord, 1 Seld., 95. To constitute either the one or the other the parties must occupy towards each other a contract status and there must be that connection, mutuality of will and interaction of parties, generally expressed though not very clearly by the term “privity.” Without this a contract by implication is quite impossible. Broom’s Com. on Com. L., 317; Broom’s Phil. of Law, 18, 23, 24, 25, 29, 34; 1 Austin’s Juris., 325, 326; 2 id., 946, 948, 1018. Cases in illustration are numerous. Blandy v. DeBurgh, 6 C. B., 634.
Where there is a spontaneous service as an act of kindness and no request, or where the circumstances account for the transaction on some ground more probable than that of a promise of recompense, no promise will be implied. The contract connection is not established. Bartholomew v. Jackson, 20 Johns., 28; James v. O’Driscoll, 2 Bay, 101; St. Jude’s Church v. Van Denberg, 31 Mich., 287; Livingston v. Ackeston, 5 Cow., 531; Nicholson v. Chapman, 2 H. Black., 254; Smart v. Guardians of the Poor, 36 E. L. & E., 496; Otis v. Jones, 21 Wend., 394, 396; Ehle v. Judson, 24 Wend., 97; Ingraham v. Gilbert, 20 Barb., 151; Eastwood v. Kenyon, 11 Ad. and El., 438; Hertzog v. Hertzog, 29 Penn. St. 465; Lange v. Kaiser, 34 Mich., 317.
The parties must be consenting bargainers personally or by delegation, and their coming together in contract relation must be manifested by some intelligible conduct, act or sign. If not, no contract is shown. Depperman v. Hubbersty, 33 E. L. & E., 88; Gerhard v. Bates, 20 E. L. & E., 129; Williams v. Everett, 14 East, 582, 597, 598; Exchange Bank of St. Louis v. Rice, 107 Mass., 37; Mellen v. Whipple, 1 Gray, 317; Pipp v. Reynolds, 20 Mich., 88; Turner v. McCarty, 22 Mich., 265; Ashley v. Dixon, 48 N. Y., 430; Merrill v. Green, 55 N. Y., 270; Simson v. Brown, 68 N. Y., 355; Strong v. Phœnix Ins. Co., 62 Mo., 289; Bank of Republic v. Millard, 10 Wall., 152; First National Bank of Washington v. Whitman, 94 U. S., 343; Starke v. Cheeseman, 1 Ld. Raym., 538; Keller v. Holderman, 11 Mich., 248; Van Valkenburg v. Rogers, 18 Mich., 180; Cundy v. Lindsay, 38 L. T. Rep. (N. S.), 573; Hills v. Snell, 104 Mass., 173, 177; Boston Ice Co. v. Potter, 123 Mass., 28; Sullivan v. Portland &c. R. R. Co., 94 U. S., 806. The privity essential to a' contract must proceed from the will of the parties. There may be a privity by operation of law where no privity of contract exists. 4 Bouvier’s Inst., No. 4237.
Before leaving this part. of the discussion it will be useful to quote somewhat liberally from the instructive opinion of Mr. Justice Lowrie, in Hertzog v. Hertzog supra,. After a citation from 2 Blackstone’s Comm., 443, the opinion proceeds:
“There is some looseness of thought in supposing that reason and justice ever dictate any contracts between parties, or impose such upon them. All true contracts grow out of the intentions of the parties to transactions, and are dictated only by their mutual and accordant wills. When this intention is expressed, we call the contract an express one. When it is not expressed, it may be inferred, implied, or presumed, from circumstances as really existing, and then the contract, thus ascertained, is called an implied one. The instances given by Blackstone are an illustration of this. But it appears in another place, 3 Comm., 159-166, that Blackstone introduces this thought about reason and justice dictating contracts, in order to embrace, under his definition of an implied contract, another large class of relations, which involve no intention to contract at all, though they may be treated as if they did. Thus, whenever, not our variant notions of reason and justice, but the common sense and common justice of the country, and therefore the common law or statute law, impose upon any one a duty, irrespective of contract, and allow it to be enforced by a contract remedy, he calls this a case of implied contract. Thus out of torts grows the duty of compensation, and in many cases the tort may be waived, and the action brought in assumpsit.
“It is quite apparent, therefore, that radically different relations are classified under the same term, and this must often give rise to indistinctness of thought. And this was not at all necessary; for we have another well authorized technical term exactly adapted to the office of making the true distinction.
“The latter class are merely constructive contracts, whilst the former are truly implied ones. In one case the contract is mere fiction, a form imposed m order to adapt the case to a given remedy; in the other it is a fact legitimately inferred. In one, the intention is disregarded; in the other, it is ascertained and enforced. In one, the duty defines the contract; in the other, the contract defines the duty. . We have, therefore, in law three classes of relations called contracts.
“First. Constructive contracts, which are fictions of law adapted to enforce legal duties by actions of contract, where no proper contract exists, express or implied.
“Second. Implied contracts, which arise under circumstances which, according to the ordinary course of dealing and the common understanding of men, show a mutual intention to contract.
“ Third. Express contracts, already sufficiently distinguished.”
Further on it is also observed that “ every induction, inference, implication, or presumption in reasoning of any kind, is a logical conclusion derived from, and demanded by, certain data or ascertained circumstances. If such circumstances demand the conclusion of a contract to account for them, a contract is proved; if not, not.”
We may now turn to the statute under which the liability sought to be set off arose and on which it depends. It is part of the first section of the act and provides “that if any person or persons shall put, or cause to be put, into any navigable river, creek or stream of this State, any logs, timber or lumber, for the purpose of floating the same to the place "of manufacture or market, and shall not make adequate provisions, and put on sufficient force for breaking jams of such logs, timber or lumber, in or upon such river, creek or stream, or for running or driving the same, or clearing the banks of such river, creek or stream of the same, and shall thereby obstruct the floating or navigation of such river, creek or stream, it shall be lawful for any other person, com pany or corporation, floating or running logs, timber or lumber in sucb river, creek or stream so obstructed, to cause sucb jams to be broken, and such logs, timber or lumber to be run, driven and cleared from tbe banks of such river, creek or stream, at tbe cost and expense of tbe person or persons owning sucb logs, timber or lumber, and sucb owner shall be liable to sucb person, company or corporation for sucb cost and expense.” Laws of 1868, p. 374.
Now tbe liability or cause of action here ordained and described is not to arise on contract, — is not to spring from any compact or privity of agreement or any coming together of tbe parties under any contract relation, or on tbe footing or in any view of any agreement. The owner of tbe logs is to become liable without any regard to bis will or bis assent to tbe acts and things for which be must pay. His accession to tbe transaction is not contemplated. He is to become debtor to a party with whom be has never bad any contract relation whatever. Tbe statute simply imposes tbe duty to pay for services which, without the provision, would, as being services purely voluntary, be not recoverable .in any way or form.
No case is presented to raise an inference or cause an implication that there was a contract. Tbe demand arises upon statute, that is, upon a duty which tbe statute originates, and has no place in tbe law of contracts. Tbe liability belongs to that class Mr. Justice Lowrie calls “constructive contracts,” and which tbe civilians ■denominate “quas\ contracts,” meaning' transactions in which tbe parties make no agreement whatever, but on which tbe law grounds specific obligations. . Poth. on Obligations, Pt. L, cb. 1, sec. 2.
If tbe demand set up in this case should be considered as arising on contract within tbe meaning of tbe set-off law it will be very difficult to draw tbe line.
Tbe conclusion on this part of tbe case is that they did not so arise and hence were not lawful matters of set-off. In regard to set-off the right is tied down- by the statute to demands arising on contract, but assumpsit is not so confined but is allowed an expansive application to cases which do not arise on contract.
Third. The judge was asked to direct the jury that “if the defendants performed labor at th% request of Ayres, Learned and "Wiswall in carrying out the latter’s part of the contract, the defendants should be allowed pay for such expenditure.” This was refused, and the jury were told that no set-off could be allowed for booming the logs by defendants; that whatever was done was part of the agreed process of receiving the logs.
It is objected, first, that it was part of the contract that Ayres, Learned & Wiswall should get the logs ready for scaling, and that the judge erred in excluding the claim of set-off for services rendered at the request of Ayres, Learned & Wiswall in booming the logs to get them ready; and second, that the contract was verbal and the decision as to what it contained for the jury, ■and that the judge erred in ruling that the booming was for plaintiffs in error.
These positions are hot quite consistent. However we perceive no ground on which the plaintiffs in error can reasonably complain. The intrinsic character of the request as well as the real case justified its refusal. Besides being vague it virtually assumed that it was part of the contract that Ayres, Learned & Wiswall were to do certain things, and that there was evidence tending to show that these things were in fact performed by plaintiffs in error at the request of Ayres, Learned & Wiswall.
The logs were to be taken by plaintiffs in error where they were in the river and Ayres, Learned & Wiswall were not to handle them further. On that subject there was no chance for dispute. All the evidence agreed upon it. Plaintiffs in error proposed that they should be scaled in the river; but Ayres insisted, and no doubt on the ground of convenience, that plaintiffs in error should gather them in their boom for scaling, instead of leaving them to be sought after along the river to be scaled; and this was distinctly assented to. Their collection in the boom to be scaled was therefore not a service on which to ground a right of set-off.
Fourth. It is objected that whilst the defendants in error admitted that the plaintiffs in error were entitled by the contract to 140,000 feet, still the charge left it to the jury to decide whether in getting 130,000 feet the plaintiffs in error did not get all they were entitled to under the contract.
The charge was not as pointed on this subject as it might have been, but plaintiffs in error have not been hurt as we think, and have no just ground of complaint. The judge did not specify to the jury that one of the defendants in error in giving his evidence before them testified that by the contract the plaintiffs in error were entitled to 140,185 feet. But he did speak of the three different amounts testified about, namely, 130,000 feet, 140,000 feet and 182,000 feet, and told the jury that if plaintiffs in error were to receive 140,000 feet, then 10,000 feet at the price found to be the true one, less $4.00 per thousand feet, should be deducted from the plaintiff’s claim. There is no fair ground for saying the jury were misled. But we observe that plaintiffs in error submitted several requests to charge and yet preferred none on this subject, and moreover that they do not appear to have taken any exception suggestive of this objection, if indeed any at all competent to reach any part of the body of the charge.
All the objections insisted on have been considered, and no error being shown of which the plaintiffs in error can complain, the judgment should be affirmed with costs.
The other Justices concurred. | [
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] |
Graves, J.
French recovered before a justice upon the common counts for services in making plans and drawings as an architect, and the court below reversed the judgment on certiorari, and French complains of it.
The reversal seems to have been caused by a ruling of the justice against a question put by O’Connor on cross-examination of one Brown, who was a witness on the part of French. There was evidence on the part of French, tending to show that Brown, who was a builder, informed French that O’Connor, a livery-stable keeper, proposed to make alterations in his barn and desired him to look at it. That French called and was told by O’Connor what changes were intended and helped to make measurements, etc. That O’Connor told him to give the plans to Brown when finished and sent for. That^they were worth $12, and when finished were called for by Brown to whom they were delivered. That he, French, called on O’Connor .to make payment, and the latter proposed to pay him $5, but did not do so and wished to make payment in livery. That the bill was afterwards presented to O’Connor for payment but not paid, and that O’Connor observed that he would call and see French.
Brown having sworn that O’Connor sent him after French and after the plans when finished, was asked on cross-examination whether O’Connor did not demand the plans of him, and whether he did not refuse upon the ground that he owned them, and the exclusion of this question is the ruling on which the circuit court reversed the judgment.
The object of the inquiry was explained as being to test the veracity of Brown, and also to prove that he had purchased and paid for the plans referred to. The court is unable to see the pertinency of the question for either purpose. No responsive answer would conflict with anything Brown had sworn to or reach his credit, or tend to make out anything inconsistent with French’s claim. An affirmative answer would have been nothing more than a sworn admission that he had previously * stated to O’Connor the supposed matter, and not a positive statement on oath of the actual existence of a right in himself. It could have had no greater force against French than the oath of some other person would have had of what Brown had told to O’Connor. And as an assertion by Brown to the latter, whether proved in one way or another, it could not affect at all the controversy between French and O’Connor. We think the justice committed no mistake, and that the court below erred in reversing the judgment.
The judgment of the circuit court should be reversed with costs.
The other Justices concurred. | [
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] |
Cooley, J.
Decree in this case was entered May 26, 1877, after order pro confesso on personal service of process. On the first day of May, 1878, the defendants filed a petition that the decree and order pro confesso be set aside on the following grounds:
1. That the subpoena issued and served upon them was signed by the deputy register in his own name, and not in the name of his principal.
2. That by the subpoena the defendants were called in to answer to the bill of complaint of “Nelson Creveling, of Minnie J. Boudman,” whereas the decree is in favor of Nelson Creveling, guardian of Minnie J. Boudman.
3. That the copy of subpoena served upon them was not subscribed by the complainant or his solicitor, or by the officer serving tbe same, as required by the rules of court.
The prayer of this petition was denied. This was correct. The defects were mere irregularities, and if the defendants desired to take advantage of them they should have moved promptly. After the lapse of time appearing in this case, such objections are not to be listened to.
The order appealed from is affirmed with costs.
The other Justices concurred. | [
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] |
Campbell, C. J.
Mrs. Erickson, the defendant in error, recovered a judgment in the court below, as administratrix of her deceased husband Andrew Erickson, who was killed by a falling rock while engaged in working in the mine of the plaintiff in error, July 9, 1877.
It appears that Erickson had been employed the day before his death as one of a mining gang under the management chiefly of Gustav Stenson, who with his partners had taken a contract for mining and hoisting ore at ninety-five cents per ton for ore and twenty-five cents per ton for rock — this contract having been made July 1, 1877, for a month, and similar contracts having been made in previous months from the beginning of April. Erickson was employed by the day at one dollar and fifty cents per day. The pay arrangement was that the company officers were to pay the men on the certificates of the contractors, deducting this pay from the final settlements.
These contracts were all let by Day and McEncroe as officers of the company, who had general charge for the company of the affairs in the mine.
The pit where these contractors were at work had been carried along the lode so as to leave the upper or hanging wall, which was at an angle of sixty-five degrees, exposed from twenty to twenty-five feet high, and not far from the same distance along the level, with no support or timbering of the hanging wall in that space. Erickson was engaged in sinking a winze or ventilating shaft from this level, and had sunk it about two feet and eight inches when killed. The rock which killed him fell from about half way up the hanging wall,' and was. just over the winze.
The chief controversy relates to the question whether this rock was previously in a condition which made it so apparently dangerous as to require removal or timbering, and if so, on whom, if any one, was the risk and responsibility. Several collateral questions arose also.
Upon a careful inspection of the record we do not think any questions become material excej)t those which bear on the rights and duties of the various parties in connection with the mine. The other errors assigned do not appear to be founded on sufficient showings in the record. The only one urged by counsel was the rejection of a question put on cross-examination to Stenson asking him whether it was not his business and that of his associates to be on the lookout and watch for dangerous places. "We think that when the terms and conditions of his contract were shown, this was rather a deduction than a fact, and he could not properly be allowed or required to answer it. He was not precluded from explaining fully the mutual understanding of the contracting parties as to what the contract was, or as to usage.
It was claimed on the argument, and this claim is based on the assignments of error, that on the whole case there was no ground of recovery. And as reasons for this "position several legal propositions are advanced which are chiefly as follows: That there could be no recovery if Erickson was in the employ of Stenson as a day laborer; or if he was not under control of the company or its officers and if Stenson and his associates were to mine and do their work properly; or if he was willing to work after such examination as was shown. And it was claimed in various forms that Erickson undertook all the risks that were established. It will be more convenient to refer to the points raised in the way adopted by counsel than to pursue every subdivision separately.
There was evidence that the rock in question had been considered as dangerous some .time before the contract of July, and that the attention of Day and McEneroe had been called to it. There was evidence of various attempts by sounding it • with an iron bar to ascertain its safety. There.was conflicting evidence as to some of the declarations of .the mining officers on this subject. There was evidence on one side that they expressed themselves decidedly on its safety. There was also evidence to go to the jury that they retained the right to determine what large rocks' should be removed and what timbering or propping should be done. There was also testimony bf the increase of water oozing from the seams, claimed to indicate a gradual loosening. The theory of plaintiff in error was that'the rock had been started by blasts from the winze, and that sufficient care had not been taken to examine it thereafter. It fell about two hours after a blast. Other matters of fact will be referred to in their place.
It is proper first to consider the respective positions of the parties. Day and McEncroe stood in the place of the mining company in making these contracts. There was no employment relation between them and Erickson, who was laboring under the contractors. So . far as this changed the relative liabilities of the parties it must operate in this case. But while there are cases in; which there is no duty or legal privity between principals and the servants of those who contract with them, this lack of privity is not universal and absolute. If, for example, a railway company were to contract with a firm of car-builders to build ears according to given plans in places under the entire control of the buildérs, there could be no possible .corporate responsibility for injuries received by workmen in their callings. But on the other hand it might be quite possible for men to be employed in piece-work in the shops of such companies where they retained more or less control, when for the failure of a corporate duty the workmen or strangers injured by that failure might have a cause of action for the wrong directly against the corporation, although it had not employed them. The case of The City of Detroit v. Corey, 9 Mich., 165, is a case where the corporation was held liable for neglect of a contractor in not properly guarding against danger from an excavation in a public street. The same principle was applied in Darmstaetter v. Moynahan, 27 Mich., 188; McWilliams v. Detroit Central Mills Co., 31 Mich., 274; Gardner v. Smith, 7 Mich., 410; Bay City & E. Sag. R. R. Co. v. Austin, 21 Mich., 390; Continental Imp. Co. v. Ives, 30 Mich., 448; G. R. & Ind. R. R. Co. v. Southwick, 30 Mich., 444.
No doubt the range of the owner’s responsibility is very much less in most cases where contractors are employed and have their own servants at work, than where the servants are employed by the proprietors. The main question in such cases is whether any duty remained which sprang from the proprietor’s own position, and from the violation of which the damage arose. In the present case there are two principal inquiries, which are first, whether the death of Erickson was due to the fault of the mining company in not doing what they were bound to do for the protection of those working in their mines; and second, whether Erickson himself was responsible for running the risk which proved ■ fatal. Of course both of these questions are aside from the third question, whether the death was accidental, and not due to the fault of any one.
The court below told the jury that there could be no recovery in this case if the duty was on Stenson and his associates to guard against such risks, and that the same was true if Erickson contributed to the injury by his own want of care. They were also told that there was no ground of recovery if the falling of the rock was not under circumstances which' showed that the company had been guilty of such negligence as showed such want of care and caution as prudent persons would not be guilty of. They were particularly directed that unless the conduct of Day and McEncroe was thus negligent and the cause of the mischief, there could be no recovery, and that the company would be liable for their neglect or misconduct and not for that of any one else appearing in the case.
We think the coürt was correct in holding that Day and McEncroe represented the company for this purpose. They appear to have had entire control of all the business that is involved in the record. And we think there is no room to question the propriety of these rulings if they were applicable, and not neutralized by other instructions. In this connection it is proper to notice one of the special assignments of error which is calculated to give a wrong impression. The court is represented as telling the jury to inquire whether 'the company used such care and precautions as “relieved them from liability in this suit,” — and it is claimed this left a question of law to the jury. But the next sentence of the ¡charge explained what would or would not make them liable. Isolated sentences cannot be allowed to be considered apart from their context. The instructions were not so separated as to create confusion, but were really but a single and correct ruling.
We think that unless the case was one too plain to go to the jury on that point, it was properly left to them to say whether the accident occurred without any one’s fault or neglect. It is not for us to draw inferences of fact in such cases. There was certainly evidence to go to the jury indicating that there should have been measures taken by some one to either remove or prop the rock that fell.
We think also that there was properly before them a question whether Erickson himself was guilty of contributory negligence. A great deal of testimony was introduced to show that there was no apparent danger which could be discovered, and that the company was justified in treating the rock as safe. There was also much testimony to the contrary. The place was one not easily examined by the ordinary mining lights. If there was no apparent danger it was not recklessness to work under this rock. If on the other hand there was real danger and Erickson was informed of it on the day he entered the mine, there was nevertheless evidence that those about him who had practical knowledge of the mine in which he was a stranger, acted as if they did not think so, and the guards usually to be expected against danger were absent. The duty of examining such places after a blast, is confined by the testimony to dangerous places, and not made out clearly even there as devolving on Erickson. The jury have necessarily found he was not careless, and there was testimony on which they could lawfully act.
The question next arises whether the responsibility of protecting Erickson from such a danger, if supposed to exist, rested on his immediate employers. This was also dependent on testimony, and involved some inquiry into their relations with the company.
Does it then appear so as to bind the court and jury that the contractors in this particular service had the responsibility confined to them, of guarding their workmen from the probable dangers of their employment? There is no dispute in this case upon the general principle of law that a responsibility lies somewhere to prevent workmen from being exposed, without such protection as is reasonably required in a dangerous business. The law is very clear that it is culpable negligence to avoid keeping mining works as well protected as usual prudence would dictate. And there is no doubt that a common danger in mines is from falling rocks. The hanging wall being on an angle — in this instance of 65 degrees — with the level, any lack of cohesion in its parts must lead to the fall of such part of it as is seriously loosened, and that fall must be hastened by the concussion of the air or the blows of flying rocks thrown against it by blasting below and near it. In the present case the rock which fell being directly above the winze, and only about twelve feet from its mouth, every blast in that shafi would necessarily throw more or less rock against this ^loping roof; and this must continue until the shaft is either finished or opened to such a depth as to deaden or destroy the upward force of the explosions.
The fact that this rock was considered dangerous and so reported several weeks before the accident, and the further fact if true (and the jury probably believed it) that there was a perceptible increase in the dangerous symptoms, certainly imposed a duty of either removing the real danger or using such means as are generally deemed adequate to determine whether any danger existed. The further fact that the hanging wall was composed of a species of rock whose thickness was not generally found uniform, and which was sometimes thin enough to possess no very great resisting power to shocks or disintegrating agencies was one which could not be left out of view by any prudent calculation. A broad expanse of some twenty-five feet square of rock only supported by its own cohesive power from falling may, according to the testimony, have weak points where it may give way unless propped, or unless the unreliable mass is removed. There was testimony, which it is not our province to pass upon, which indicated, if believed, that no reliable test could be found for determining the solidity of the rock when water was escaping through such seams as existed in this wall.
We think there was a question fairly open whether neglect to guard against the accident was not culpable. The jury have found it was.
If so, the only remaining question is whether the jury had proof before them whereby they could lawfully hold the company to this responsibility.
Under the contracts shown by the proofs, the contractors had nothing to do with planning the mine or selecting their working ground, unless with very small discretionary choice. The shafts and levels and the winze must necessarily have been determined on by the owners of the mine, and the mining gang worked on short contracts. Their business, except in sinking the winze, was merely stripping the lode of its ore, and the winze was apparently, as it must usually be, down the lode. The pay for getting out dead rock was but little beyond one-fourth that of getting out ore, and work in the rock outside of the lode was not contemplated. They testified, and the jury must have believed them, that the company reserved the power of determining when and where dangerous rock in the wall should be removed, if requiring removal by blasting, and of locating the supporting pillars or placing timbers to prop the wall. Such timbering would be expensive, and is not provided for by the contracts which are confined to rock and ore blasting and removal. Either the mine must be unguarded, or else, on this state of facts, the company must guard it.
Under such circumstances it is very plain that the company being the owners of the dangerous property, and inviting men to work on it, their responsibility for its protection cannot be changed by the fact that the work is done by the ton instead of by the day, or by the fact that the men who contract with them have laborers of their own. By employing men to act for them in either way they hold out the assurance that they can work in the mine on the ordinary conditions of safety usually found in such places. They guarantee nothing more than is usual among prudent owners, and they do not insure against that which is purely accidental. But they do tacitly represent that they have not been and will not be reckless themselves.
If men choose with their eyes open to run into danger they may forfeit claims to redress. But it cannot be considered reckless in men who are in doubt upon a matter which cannot be determined absolutely, to pay some regard to the opinions and assurances of those who are supposed to have, and by their position are bound to have special knowledge (failed for by their larger responsibilities. In the present case the assurances of safety given by the mining agents cannot be disregarded, and were rightly subject to consideration by the jury..
We think the jury were very carefully and correctly instructed concerning their duty, and that there was testimony which warranted their verdict.
There is no error in the record, and the judgment must be affirmed with costs.
The other Justices concurred. | [
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] |
Campbell, G. J.
This proceeding is brought to review the action of the Wayne circuit court affirming an order of the pr’obate court of Wayne county which admitted to probate a will proven in Louisiana, and revoked the probate of a former one executed in Michigan.
On the 14th day of April, 1876, a will made in August, 1858, by Margaret Hendry, who at the time of her death was Margaret Barrios, and who was at the date of her death in May, 1871, domiciled with her husband, Octave Barrios, in the parish of LaFourche in the State of Louisiana, was admitted to probate by the probate court of Wayne county. This will bequeathed and devised to her sister Adele Thierry, and her brother-in-law, Peter Thierry, all of the real and personal property owned by the decedent in Wayne county, Michigan, and no other property. This probate was never appealed from, and was regular.
These devisees afterwards sold half of their real estate to Frederick Besanqon, who held it when the second proceedings in the Wayne probate court were had.
On the 26th day of May, 1871, an instrument purporting to be a later will, not witnessed, but purporting to be holographic — or written throughout by the testatrix, in the French language, giving whatever was thereby disposed of to her husband, was admitted to probate, as is for the purposes of this decision assumed, by the parish judge of LaFourche in the State of Louisiana.
The record before us does not show such facts to have been proven in the court below as were necessary to make out such a probate, but in the view we have taken of the other points we need not dwell upon this. Whether any notice was given which would have enabled her heirs to appear and contest the probate does not appear.
This probate had been granted five years before the proceedings in the Wayne probate court to establish the first will, and Octave Barrios never took steps to intervene or appeal from that allowance.
On the 11th of April, 1877, Henry F. Brownson, who is not an heir, and is not' personally interested in the estate, presented a petition setting forth the Louisiana probate of the second will and asking for its probate here, and for administration to be granted under it to Octave Barrios.
The judge of probate admitted the second will to probate and revoked the probate of the first will which was declared not to be the last will of the decedent.
In view of the imperfections of the record sent up on appeal, and the omissions of what wa's important documentary and statutory proof, and in further view of the state of the case as to parties, we shall not attempt to go further than seems necessary to prevent misapprehension.
There is no statutory provision' concerning the revocation of probate, or its effect on existing rights. Neither is there any statute providing for cases where a will claimed to be later in date than the one before probated is presented for probate, nor declaring the effect of probate of one will on a later one which was known to exist before the time of the first probate but not then produced.
The difficulties attending a case like the present, where the Louisiana probate of the second will was not made known when the Michigan probate of several years later was had of the first will, are very serious, and still further complicated by the transfer to a purchaser of the property given by the first will. As counsel did not argue these questions and confined their discussion to the validity of the action below, if jurisdiction was admitted, we cannot properly dispose of them.
If the probate court was possessed of authority to probate the second will, we have no hesitation in saying there was no authority in this case to revoke the earlier probate. The execution of the first will was under our statutes conclusively established. Comp. L., § 4341.
The second will is in a foreign language which contains words which, according to the witnesses, admit of different meanings according to their collocation. It contains on its face -no revocation of the first will, which was confined to property in Michigan. If it revoked the Michigan will it did so inferentially and by necessary repugnancy. We do not conceive that the decision of such a question as affecting a former probate is proper in a mere probate proceeding where there is any room for dispute as to construction. In such a case, if probate of the second will is allowed, the former probate should be left to stand for what it is worth,, and if parties dispute the construction or effect, it should be decided elsewhere. It is not the proper function of a probate court to divest or decide upon vested rights of property which are derived or assured under proceedings which were regular and valid on their face.
But the present proceedings are entirely illegal on another ground. The statute authorizes no one to bring in a foreign probate for allowance unless presented by “the executor or other person interested in such will.” Comp. L., § 4348.
This we think is a necessary and jurisdictional condition which should appear in the record. Legal proceedings bind none but parties and their privies, and while proceedings in rem when legally instituted bind every one, yet they must be commenced by some authorized person. If strangers could set such proceedings on foot it is easy to see how the rights of the persons interested might be destroyed without their knowledge or consent. The person who is allowed to begin proceedings is practically if not theoretically the magister litis and can shape process, pleadings and proofs very much as he pleases. He may present a case in such a way as to jeopardise the entire proceeding, and charge the estate with obligations that affect all parties in their rights.
In the present case, for example, if Mr. Brownson could have been original petitioner and'the decision below had been adverse, it would have been very strange if he could not have appealed to the .circuit the proceeding he had commenced in the probate court. But the statute expressly confines appeals to parties “aggrieved Comp. L., § 5216. He could not be regarded as aggrieved, because he had no concern in the controversy. This question has already been settled in this court. In Labar v. Nichols, 23 Mich., 310, it was held that an heir at law who had been left as his sole portion a small legacy which it was morally certain the funds would pay, was not authorized to appeal from the allowance of an administration account, although there was a remote and very unlikely possibility that contingencies might occur which would imperil his legacy. In Dickinson’s Appeal, 2 Mich., 337, an appeal was taken and bond made by an attorney in his own name from proceedings on the rejection of a claim. The court held the provision imperative which required action by the party himself. The same principle was recognized in Taff v. Hosmer, 14 Mich., 249, where the subject is further discussed.
It follows that the entire proceedings on the second probate are illegal.
The order of the circuit court and of the probate court must be reversed and vacated, and the proceedings to probate the second will set aside, and the petition dismissed. And it must be certified to the probate court of Wayne county that the estate of the decedent and the administration thereof must continue to stand unaffected by said petition of Henry F. Brownson and the proceedings thereunder.
Plaintiffs in certiorari are entitled to costs of both courts against defendant in certiorari.'
The other Justices concurred. | [
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Marston, J.
Mary Ann Hommel filed a bill of complaint setting forth therein, that she was in the actual possession and held the legal title to certain described lands; that she derived her title thereto by conveyance from her father William Hommel and Mary Eve his wife, dated June 16th, 1857, recorded November 25th, 1867. The bill sets forth that the defendant, Devinney, is attempting to disturb complainant in her possession; that he has set up a claim of title to the premises in opposition to that of complainant, claiming under a conveyance from some of the heirs of William Hommel, dated June 7, 1867, and recorded June 10th, 1872. Complainant prays that defendant may be decreed to release to her his claim to the premises, and for other relief.
Defendant answered denying that complainant was owner of the premises or in the possesson thereof, but on the . contrary alleged that he was the owner of an undivided three-fourths of the premises; that he entered upon and was in the peaceable and undisputed possession of said premises from about the 7th day of January, 1867, down to about the first day of August, 1875, at which time complainant ejected him, erected a house thereon and has ever sinpe continued to hold the same. He denies that he claims title to the premises through any number of the heirs of William Hommel, — denies that William Hommel ever owned or deeded the premises to complainant, or that if he did deed to her, she acquired any title thereto thereby, — alleges that he purchased an undivided three-fourths title to said, premises in good faith and for a valuable consideration, from and through certain named persons who were then owners in f¿e of the interest now claimed by him, as the heirs and legatees of Wendelin Hommel.
Defendant afterwards filed a cross-bill, to which an answer was put in. The facts in each were substantially like those set forth in the original bill and answer. Witnesses were examined in open court, and a decree rendered in favor of complainant in the original cause. Defendant appealed.
We have no doubt but that Wendelin Hommel, by the name of William Hommel, conveyed the premises, as claimed, to complainant; that he was known to many persons by the name of William, and answered to that name, is, we think, fully established. Several witnesses were sworn on the part of the defendant who testified they never heard him called by the name of William, but by that of Wendelin. Their testimony, however, in no way tends to contradict or disprove those sworn on the part of complainant who had heard him called by a different name. The question is not which was the correct name. No doubt Wendelin was; but was he known and called by the name of William also? That he was, we have no doubt, and that the person who executed the deed to complainant, by the name William Hommel was the same person known to others as Wendelin Hommel we have no doubt.
The deed in question was not produced on the trial, it being claimed that it was lost. The record thereof from the register’s office of Wayne county was intro duced, and it was claimed by defendant that such record had, since the making thereof, been fraudulently altered by interlining the word “five” after the word “thirty” so that the lands described would thereby appear to be in section thirty-five instead of in section thirty as originally recorded. It appeared that in this same deed was embraced and' conveyed lands in St. Clair county, and a certified copy of the records from that county was introduced from which it appeared that as there recorded these lands were described as being in section thirty. From this it was claimed that the lands in question were not described in the deed from William Hommel to the complainant, and that the change in the Wayne county record was simply a forgery committed by some person unknown.
We cannot adopt this view of the case. Interlineations in the records of deeds are not. so unusual as to render the record containing them doubtful or suspicious, and certainly fall far short of indicating a fraudulent alteration. Very clear proof should be required to thus destroy the effect of a public record. A certified copy frqm the records of St. Clair county would have but slight tendency, if any, to prove a change or alteration of the record of the same instrument in another county, unless we could conclusively presume that the St. Clair record was correct. Why we should, however, presume in favor of one any more than the other has not been made apparent. Nor does the oral testimony, in connection with the memorandum made by Mr. Eaton, since deceased, aid us much. Whether Mr. Eaton made a mistake or not we are unable to say. I t.lninlr we must presume that all alterations or interlineations made or appearing in a public record, were done in a proper manner by the person having the care and custody thereof, or by some one in his office, having authority so to do. In other words the mere fact that a change has been made, in the absence of evidence showing the contrary, must be presumed to have been done in a proper and legitimate manner.
It is next claimed that defendant was a bona fide purchaser, and is therefore entitled to protection. Complainant was in the actual possession of the premises, at the time defendant purchased, and although the deed to complainant was not then on record, yet defendant could not but have known that the complainant claimed to have some interest in the premises. He should, therefore, have called upon her and ascertained the extent of the interest which she claimed therein, and from what source she derived her title: failing so to do, he is chargeable the same as though he had called upon her and ascertained fully all the facts.
The decree of the court below in favor of complainant in the original cause, and the dismissal of the crossbill, must be affirmed with costs.
The other Justices concurred. | [
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Graves, J.
The plaintiff in error being an invalid ' procured defendant in error to attend him in capacity of a nurse. She remained about two weeks and a half and went away. Some time thereafter she brought this suit upon the case to recover for various personal injuries and among them for a rupture caused as she alleges by his blows and other acts of violence against her while she was acting as his nurse. The jury returned a verdict in her favor for $1500 and error is charged.
When upon the stand as a witness in her own behalf she testified that she was in good health when she began for the plaintiff in error, but after leaving was sick and ruptured and that such injuries were caused by his personal violence.
On cross examination she was asked if she had not at a specified time and place admitted to Doctor Lichty that she had been ruptured before going to nurse plain tiff in error, and that he had' not caused the rupture of which she made complaint, and she replied that she had not.
Dr. Lichty was afterwards called for plaintiff in error and having testified that he was employed and acted as her physician after she left plaintiff in error, that he had charge of her case and that all the facts which had come to his knowledge of and concerning her had been acquired by him while attending her in his professional capacity as her physician, was tendered as a witness to prove that she admitted to him, at the time and place specified in the question put to her, that she had been ruptured before she went to live with plaintiff in error and had not been ruptured by him. The offer was objected to by the counsel for the defendant in error on the ground that it was within Comp. L., § 5943. The section is in these terms:
“No person duly authorized to practice physic ox-surgery shall be allowed to disclose any information which he may have acquired in attending axxy patient, in his professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon.” -
The court sustained the objection.
The objection and ruling were based on the statute. The common law gives no privilege in such a case, 1 Greenleaf’s Ev., § 248; 1 Wharton’s Ev., § 606; 1 Starkie’s Ev. (Phil, ed.),- p. 40, mar.; 2 Best’s Ev. (1st Am. from 6th Lond. ed.), § 582.
The rule given by the statute is beneficial and based on elevated grounds of policy, and it ought not to be frittered away by refinements. It is not to be forgotten, however, that parties have their rights, and that when one takes the stand as witness to establish by his or her oath the cause of action alleged, the state of facts to give immunity uxxder the' statute ought to appear distinctly before making any exclusion of proof of contradictory admissions. So far as practicable the courts ought to see to it that the statute is not used as a mere guard against exposure of the untruth of a party, and that a rule intended as a shield is not turned into a sword.
The objection in the present case was not warranted by the facts in the record. The offer was to show -Miss North’s admission that her rupture was not caused by plaintiff in error but existed before she went to live with him. This was material, and it does not appear in the record from the doctor’s testimony or in any way that in case she made the admission as to the pre-existence of the rupture, and as to its not being caused by plaintiff in error, it was information' “ necessary to enable the doctor to prescribe for her as a physician or to do any act for her as a surgeon.” And yet this is one of the fundamental conditions for exclusion which the statute specifies.
The objection that the court refused to strike out the testimony of the other medical witnesses requires no notice.
The ease was given to the' jury upon an implication that it would be competent for them to find that the breach of which defendant in error complained, existed before she went to nurse plaintiff in error and was aggravated by his violence and abuse. There was no basis for any such theory. Miss North testified, as before stated, that she was well when she went to live with plaintiff in error, and that the rupture was caused by the violence she received there, and this was her case as set forth by the declaration. ' All her witnesses who testified about it agreed with her on that point, and ho ■evidence on the part of plaintiff in error was admitted which had any tendency to prove that he injured her by aggravating a pre-existing rupture by his assaults.
For the errors mentioned the judgment must be reversed with costs and a new trial ordered.
Campbell, C. J. and Cooley, J. concurred; Marston, J. did not sit in this case. | [
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] |
Black, J.
(for dismissal of appeal). Pour years ago, in the case of In re Fitch Drain No. 129, 346 Mich 81, 91, an overdue acknowledgment of this Court’s immediate procedural debt to the profession was written — en solitaire — for the record of the future. Our continued inaction since then rises to haunt us now.
The obligation — so cast upon us by the mounting mass of perplexity section 1 of Court Bule No 60 {1945) has generated — remains past due .and unpaid. To prove out this compound of contradiction I need but expose (for comparison with Mr. Justice Carr’s opinion as written in this case) the record of our unpublished doings in another case where, as here, the Wayne circuit in chancery has assumed long-continuant supervisory jurisdiction over the assigned work of an appointed arm of the court.
I refer to Harvey v. Lewis, 357 Mich 305. The opinion in that case does not tell today’s story. It does, however, serve as an introduction to our internal record of steady dismissal, in the same cause, of a series of appeals claimed of right from a series of like interlocutory orders. Such orders are temporal duplicates of the order before us, as we shall see.
In Harvey v. Lewis one of the parties in interest claimed (January 31, 1959) an appeal of right from an order of the chancellor directing operation of the Brookdale Cemetery (described and considered in Harvey v. Lewis, supra). Under date of January 7, 1960 (our No. 48,164), such appeal was dismissed by this Court for want of application and grant of leave.
In the same cause one of the parties in interest claimed (May 21, 1959) an appeal of right from an order of the chancellor determining that a certain mortgage affecting the subject matter had been discharged. Under date of November 24, 1959 (our No. 48,279), such appeal was dismissed by this Court for want of application and grant of leave.
In the same cause one of the parties in interest claimed (June 12, 1959) an appeal of right from an order authorizing the payment of compensation to the receiver (and to counsel for the receiver). Under date of November 24,1959 (our No. 48,332), such appeal was dismissed by this Court for want of application and grant of leave.
In the same cause one of the parties in interest claimed (June 22, 1959) an appeal of right from an order authorizing the receiver to erect a permanent building in the Brookdale Cemetery. Under date of January 7,1960 (our No. 48,336), such appeal was dismissed by this Court for want of application and grant of leave.
In the same cause one of the parties in interest claimed (July 16, 1959) appeal of right from an order instructing the receiver to defend title to the Brookdale Cemetery (as was thereafter done in Harvey v. Lewis, supra). Under date of January 7, 1960 (our No. 48,376), such appeal was dismissed by this Court for want of application and grant of leave.
What was said in In re Fitch Drain is as true today as in 1956. The only difference is that 4 more years of inexcusable lethargy on the part of this Court have intervened to aggravate the uncertainty of judges here and counsel below when the problem question is recurrently presented: Is this order, this judgment, this decree, appealable of right? This Court only can answer the question with tape-measured certainty. Until our membership rises in unison to rewrite said section 1 (of Court Rule No 60) in terms of blunt simplicity, the question will continue to receive dough-baked answers — good only for the day and case.
Turning now to the appeal before us. I would dismiss it for want of application and grant of leave. The appealed order is by no means final. It amounts to no more than a determination of the chancellor that he will not — on this single beneficiary’s petition —surcharge the cotrustee to the extent of the fee paid its counsel (Miller, Canfield, Paddock and Stone). Save only as to one beneficiary of the trust (the petitioner herself, Muriel J. Paul), that order cannot in any conceivable way bind the parties in interest, adult and minor. The reason is that such remaining beneficiaries were not brought before the court on the occasion of entry of such order, as they previously were — with religious regularity— throughout the pendency of this continuing-since-1951 chancery proceeding.
I suggest that my venerable Brother has confused the petition for instructions, which was filed June 27, 1958 (and proceedings pursuant thereto which culminated in the chancellor’s order of instructions entered July 8,1958), with the instant petition (filed May 18, 1959) to require the cotrustee “to replace or repay trust funds.” Such former petition came to hearing only after due proceedings had been taken to bring before the court all interested parties, including the presently absent beneficiaries. Nothing-like that was done in pursuance of the instant petition, and no pretense to the contrary is made or indicated in the briefs before us or in the original circuit court record.
Mrs. Paul’s petition brought before the court one only of the many interlocutory matters which, in the course of this continuing-over-the-years chancery proceeding of supervisory nature, has been brought and will be brought to judicial surveillance. In this instance the chancellor might well have dismissed the petition with suggestion that the presented issue be submitted when the next account of the trustees— showing the questioned disbursement to counsel — is formally offered up for judicial allowance and approval. Why! Because that is the proper way— and the proper time — to question an allegedly improper disbursement by a fiduciary; a time when all parties in interest are standing at the bar of the court.
In connection with this last observation, I would note that the “Eighth Account” of the trustees, reflecting as it should the questioned disbursement to counsel, was filed below since this appeal was claimed. Such account, plus a series of preceding accounts of the trustees as filed, yet awaits due pressentation to the chancellor for adjudicatory approval. Which is to say that Mrs. Paul’s petition was quite out of order and that the order of denial thereof left in its wake no prejudice to ultimate objection assigning the same reasons in support.
Justice Carr notes that no motion to dismiss this appeal has been submitted. That is true. It is equally true of numerous other instances where appeals to this Court are claimed of right (where of right they have no business here save on granted leave); with appellee counsel agreeably willing that the appealed matter come here for decision (with consequent involvement of appellate work which some person, some trust, some receivership, or some other client, must pay for). But that factor provides no ground for the assumption of appellate jurisdiction when a want of such jurisdiction appears on the face of the record sent here. Otherwise, the action or inaction of counsel will determine in just too many cases that appeals belonging here only on leave may stay here for decision without such leave.
We need no motion to dismiss this appeal as a prod to duty. We do lack a liberal dose of purposeful gumption.
Kavanagh and Souris, JJ., concurred with Black, J.
Carr, J. The order of the trial court from which the appeal in this case has been taken should be affirmed. The facts are not in dispute. The attorney for appellant herein, and the Detroit Trust Company, now the Detroit Bank & Trust Company, are cotrustees of an inter vivos trust being administered in court. In 1958 some difference of opinion arose between -the trustees with reference to the making of a certain proposed investment of trust funds. In consequence a petition was filed requesting instructions from the court with reference to the matter. In such proceeding the Trust Company was represented by counsel, the other trustee, an attorney, apparently appearing in his own behalf. Under date of July 8, 1958, the trial court entered an order holding that the investment would be improper and that it should not be made. Apparently said order contained no provision with reference to the payment of an attorney fee to counsel representing the Trust Company.
Following the action referred to counsel representing the Trust Company, as trustee, submitted a statement in the sum of $758.26 for legal services rendered in connection with the petition for instructions. Said charge was paid by the Trust Company from funds of the trust. Thereupon the cotrustee demanded that the trust fund be reimbursed in the amount named. Such demand was not complied with, and a petition was filed in the trial court on behalf of appellant, a beneficiary under the trust, for an order requiring the repayment of the attorney’s fee on the ground that such payment without the consent of the cotrustee was improper and unlawful. Following a hearing the trial court denied the petition, thereby upholding and approving the payment in question. From such order this appeal has been taken.
At the outset we are confronted by the question whether the order approving the payment from trust funds was a final order and hence appealable as of right. Mr. Justice Black has written for dismissal on the theory that the order was merely interlocutory and could not be appealed to this Court other than on leave granted. We are not in accord with such disposition of the case. The petition for instructions filed by the cotrustees was fully justified, and to the end that the matter in dispute might be fully and fairly placed before the court the employment of counsel was not improper. Under the facts suggested by the record it was requisite that the claims of the parties to the controversy should be adequately presented.
The method of procedure followed has been approved in prior decisions of this Court. In Evans v. Grossi, 324 Mich' 297, the trustees under a testamentary trust being in doubt as to the course that they should follow requested instructions and directions from the court. Citing Hackley Union National Bank v. Farmer, 252 Mich 674, such action was approved, and, the trial court having dismissed the bill of complaint, this Court passed on the matter and directed the trustees as to the course that they should follow. It was further held (p 308) that the costs of the proceeding were “a proper charge against the corpus of the trust.” In the instant case the trial judge in entering his order on the petition for instructions might properly have included therein authorization for the payment of a reasonable amount to counsel representing the Trust Company. This was not done, and apparently the Trust Company, considering that it was authorized to make payment of a reasonable amount from trust funds, paid the bill rendered. The matter having been brought before the court in the proceeding now in question such action was approved, and we think such approval has the same status as an inclusion in the prior order of authority to make such payment had the matter been handled in that way. It may be noted in passing that appellant raises no question as to the reasonableness of the charge for legal services.
The holding in Evans v. Grossi, supra, is in accord with the general rule as recognized and discussed in 90 CJS, Trusts, § 261, p 322. In the case of Atwood v. Holmes, 227 Minn 495, 500 (35 NW2d 736, 9 ALR 2d 1126), it was said:
“It is well established that when trustees are in reasonable doubt as to their official duties or powers they are entitled to instructions of the court in respect to such matters as the proper construction of the trust instrument, the extent of their powers and duties, who are beneficiaries of the trust, the character and extent of their interests, the allocation or apportionment of receipts or expenditures between principal and income, and as to the persons entitled to the income or to the trust property on the termination of the trust. * * * Costs and reasonable counsel fees may be allowed to the trustees where instructions have been properly sought. * * * It is also recognized that costs and attorneys’ fees may be allowed out of the trust estate to any necessary party who is acting primarily for the benefit of the estate in securing a clarification of ambiguous trust-instrument language where a reasonable doubt as to its meaning exists. * * * In such cases, the litigation is indispensable to the proper administration of the trust and is a proper charge thereon.”
Counsel for appellant has cited Nichols v. Pospiech, 289 Mich 324, in support of the claim that the Trust Company was not entitled to make payment of the charge for attorney fees, subject to subsequent approval by the court, without the approval of the cotrustee. In the case cited the question at issue was whether one cotrustee could bind the trust by an executory contract for the purchase of land from trust funds. This Court in its opinion held that in matters of the nature in question the trustees should act together and that, in consequence, the contract was not binding. The situation in the case at bar is not of like character. Here the services were rendered for the protection and benefit of the trust, and the trial judge by his order has approved the payment thereof. In the final analysis the claim made on behalf of appellant questions the right of a trustee of an inter vivos trust to retain counsel in the litigation of a controversy with a cotrustee. Under circumstances of the character involved in the proceeding to obtain instructions from the court, the retention of counsel by the Trust Company was proper, as the trial court recognized.
This Court, in prior decisions, has recognized that an order of a trial court definitely determining a matter in issue and disposing of the controversy with reference thereto is final. In Equitable Trust Co. v. Bankers Trust Co., 268 Mich 394, the claim was made that the order of the trial court from which the appeal was taken was not a final order. In its discussion the Court, speaking through Mr. Justice Butzel, said (pp 397, 398):
“The test, to determine whether an interlocutory order may be appealed from or not, is whether it affects with finality any of the rights of the parties in the subject matter or a part of it. The fact that there may be a possible or even a probable return of such subject matter does not warrant it being treated as a mere interlocutory proceeding pendente lite. Lewis v. Campau, 14 Mich 458 (90 Am Dec 245); Barry v. Briggs, 22 Mich 201.”
In Attorney General v. Lapeer Farmers Mutual Fire Insurance Assn., 297 Mich 188, it was held that an order allowing a claim in a receivership proceed ing Was a final order and, hence, was appealable as a matter of right. In Cooper v. LaBuda, 308 Mich 737, suit in equity was brought to foreclose a chattel mortgage and for the appointment of a receiver. Following a hearing an order or decree was entered by the trial court determining the validity of the mortgage and making an order of reference to a circuit court commissioner for the purpose of determining the amount due to one of the parties to the ease. No appeal was taken therefrom. On the reference the circuit court commissioner conducted his hearing and submitted findings and a report which on motion were vacated and stricken. The parties then stipulated with reference to the amounts of several liens and a final decree was entered in accordance therewith repeating the determinations made in the prior decree entered approximately 18 months previously. From such decree the plaintiff appealed. It was held that the first decree entered was final and that the attempt to appeal therefrom came too late. In consequence motion for the dismissal thereof was granted, it being the opinion of this Court that the first decree entered had made final disposition of certain questions in controversy. While the first order or decree in the Cooper Case was broader in its scope than the order in the instant proceeding upholding the payment for legal services rendered on behalf of the trust fund, the general principle is definitely recognized that a matter that has been litigated once and determined is not subject to relitigation. Such principle should be followed in the matter now before us.
The trial court passed definitely on the matter at issue, and neither party thereto questioned the finality of such action. No motion has been submitted here to dismiss on the ground that the order entered was not appealable as of right. Unquestionably the trial judge in hearing and determining the matter considered that he was disposing of the question as to the legality of the payment. Opportunity to try the matter again in a hearing on the allowance of accounts submitted by the trustees should not be afforded.
In Ziegler’s Appeal, 139 Pa Super 486 (12 A2d 456), the question was involved as to the legality of an investment made by a trustee acting under a deed of trust. Exceptions were filed to the final account rendered, asserting among other matters that no credit should be allowed for loss under a certain mortgage. The issue had been determined on prior hearing and decided in favor of the trustee. In refusing to consider the question in the pending proceeding it was said (p 491):
“The matter now pressed before us, having been considered and judicially determined once is not now subject to review.”
An interesting case bearing on the issue here involved is In the Matter of The Bernice P. Bishop Estate, 36 Hawaii 403. In a somewhat extended discussion it was there recognized that in the administration of a trust the estate should bear reasonable expenses incurred for assistance necessary to efficient administration, and that an order approving accounts with reference thereto should not be retried. The suggestion was made that those concerned had the right to rely on the order entered and that a contrary view would be inequitable.
For the reasons indicated we conclude that the expenses of legal services rendered to the Trust Company as cotrustee in its controversy with the other trustee was properly chargeable to the trust fund, the services in question having been rendered for its benefit and protection, that the trial judge might properly have authorized the payment for such services in Ms order denying the right to make the investment nrged by tbe cotrnstee, that tbe subsequent approval of tbe payment of the account rendered was correct, and that such order was final as to the validity and propriety of such payment from trust funds. We are in accord with the factual findings of the trial court, and the order entered from which the appeal has been taken is affirmed, with costs to appellee.
Dethmers, C. J., and Kelly, Smith, and Edwards, JJ., concurred with Carr, J.
“I conduele with observation that this 1954 to 1956 drain ease may cause our Court to take a new look at Court Rule No 60 (1945). We are overdue for an amendment plainly declaring, distinct from statute and common or uncommon law, just what in the way of circuit court judgments and orders are reviewable of right. Indeed, it would be a distinct service if we were to assemble, within the covers of one rule book and on plenary authority (Const 1908, art 7, §§ 4, 5), all rules of practice in courts of record. That will undoubtedly be done in the ‘sweet by-and-by.’ ”
At the present writing (May 12, 1960) more such appeals (claimed of right), from additional interlocutory orders entered in the same cause, confront us for similar disposition.
When the former petition (for instructions) was filed, it eame into court accompanied by a petition for appointment of a guardian ad, litem. The third paragraph of such separate petition recites as follows:
“That among the beneficiaries contingent or otherwise under the trust are Stacy Blakely, Frank Warren Blakely, Bryan Wm. Blakely, and Janice Muriel Paul, and that, accordingly, it is necessary that a guardian ad litem be appointed to represent and protect the interest of the said minor children.”
Thereupon the court appointed a guardian in pursuance of said petition. Such guardian participated properly in the proceedings, from that point on, to and including entry of the instructional order of July 8, 1958.
“But it is said, because 'no question was raised either by counsel or by the Court as to the procedure followed’ in certain cited drain cases, that this Court has relevantly 'acquiesced’ in appeal of right and, on that premise, it is suggested that counsel may ‘rely’ on such procedure as establishing remedy of review of right. Having been a lawyer during the past quarter century this writer will take notice that sagacious counsel do on purposeful occasion refrain from raising questions, sometimes by agreement with an opponent and sometimes not, in hope of obtaining meritorious decision on more important points.” In re Fitch Drain No. 129, 346 Mich 81, 89, 90. | [
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Edwards, J.
In this case, the administrator of the estate of a deceased person seeks recovery of $4,000 of legal fees paid to defendant as counsel for the deceased, on the claim that that portion of the fees paid represented an advance payment for which no services were rendered by defendant because of the prior suicide of the deceased.
The declaration was dismissed on motion without trial. The relevant portion of the declaration recites the facts which are before us and which on this appeal, of course, we assume to be true:
“1. That he is the administrator of the estate of Nicholas Begovich, deceased. * * *
“5. That on or about July 10,1958, Nicholas Begovich, the plaintiff’s intestate, was incarcerated in the county jail under the charge of murder, and that the defendant, Neil F. Murphy, was his lawyer.
“6. That the defendant demanded and received the sum of $2,500 from the plaintiff’s intestate.
“7. That subsequent to the demand alleged in paragraph 6 above, the defendant demanded and received an additional sum of $4,000.
“8. That the amounts referred to in paragraphs 6 and 7 above were for legal services for the defense of the plaintiff’s intestate.
“9. That before trial, on August 7, 1958, plaintiff’s intestate died by suicide.
“10. That the defendant rendered only the following services:
“(a) Initial interview and consultation with the plaintiff’s intestate.
“(b) Appearance at arraignment, waiving examination.
“(c) Appearance at arraignment on information, arranging bail.
“11. That the services referred to in paragraph 10 above were not of a value in excess of $2,500.
“Wherefore, the plaintiff prays judgment in the amount of $4,000, plus lawful costs and attorney fees.”
The trial judge, on motion to dismiss, found that deceased had entered into “a definite contract * * * to pay the defendant, Neil F. Murphy, an attorney, $10,000 to represent him in the trial of said cause.” We do not find these allegations in the declaration.
In fact, we do not find any express contract as to compensation recited in the declaration. On the contrary, we read the declaration as claiming that the $4,000 paid was an advance for legal services to be rendered and which, in fact, were not.
The plaintiff’s declaration clearly seeks repayment of the funds advanced on the doctrine of implied contracts. This Court has held that where some duty would justify a court in imputing a promise to perform it, a contract will be implied. Woods v. Ayres, 39 Mich 345 (33 Am Rep 396); Currier Lumber Co. v. Van Every, 312 Mich 375.
G-enerally, in the absence of express contractual terms for legal compensation, the Michigan courts have followed the rule of implying a contract for legal services for the reasonable value of the service rendered. Eggleston v. Boardman, 37 Mich 14; In re Freshour’s Estate, 174 Mich 114 (45 LRA NS 67, Ann Cas 1915A, 726); Crary v. Goldsmith, 322 Mich 418. The cases which best illustrate this rule are all ones in which attorneys were claiming fees, rather than the instant situation where a representative of a client is seeking repayment of an advance. But it appears that the rule should be the same as to an action by a cliént, and indeed Michigan Court Rule No 4 (1945)' seems-to-establish this as public policy.
We have given consideration to the facts that completion of this contract was prevented by the suicide of the client. On this record, we must presume, as did the trial judge, that this represented a wilful breach.
Nonetheless, we do not believe that, in absence of an express contract which may be interpreted as providing such a contingency, and in the absence of a showing of damage to the opposite party, that the law contemplates such a windfall.
■ We recognize that at least 1 court in an early case held a client’s suicide warranted retention by his attorney of an unearned fee. Mitcherson v. Dozier, 30 Ky 53 (22 Am Dec 116). This decision was made after trial, however, and based on the terms of the contract.
We think the soundest view is that stated in 2 Restatement, Contracts, § 357:
“(1) Where the defendant fails or refuses to perform his contract and is justified therein by the plaintiff’s own breach of duty or nonperformance of a condition, but the plaintiff has rendered a part performance under the contract that is a net benefit to the defendant, the plaintiff can get judgment, except as stated in subsection (2), for the amount of such benefit in excess of the harm that he has caused to the defendant by his own breach, in no case exceeding a ratable proportion of the agreed compensation, if
^ “(a) the plaintiff’s breach or nonperformance is not wilful and deliberate; or
“ (b) the defendant, with knowledge that the plaintiff’s breach of duty or nonperformance of condition has occurred or will thereafter occur, assents to the rendition of the part performance, or accepts the benefit of it, or retains property received although its return in specie is still not unreasonably difficult or injurious.
“(2) The plaintiff has no right to compensation for his part performance if it is merely a payment of earnest money, or if the contract provides that it may be retained and it is not so greatly in excess of the defendant’s harm that the provision is rejected as imposing a penalty.
“(3) The measure of the defendant’s benefit from the plaintiff’s part performance is the amount by which he has been enriched as a result of such performance unless the facts are those stated in subsection (lb), in which case it is the price fixed by the contract for such part performance, or, if no price is so fixed, a ratable proportion of the total contract price.”
We read one of Michigan’s early cases in this field as in accord with the principles stated above. See City of Detroit v. Whittemore, 27 Mich 281.
The facts recited in this declaration would not suggest that the second payment of $4,000 could be classed as “earnest money” or retainer.
In this case, we do not now speculate about what the actual facts were, leaving that to answer and hearing of the issues as they are formed at trial. We believe the motion to dismiss should have been denied.
Reversed and remanded for trial. Costs to appellant.
Dethmers, C. J., and Carr, Kelly, Smith, Black,Kavanagh, and Souris, JJ., concurred.
“Attorneys and counselors are officers of the courts of this State and as such are subject to the summary jurisdiction of such courts. The circuit court of the county in which an attorney resides or has an office has jurisdiction, on verified written complaint of any client, either in person or by attorney and after reasonable notice and hearing, to make any order for the payment of money or for the performance of any act by the attorney which law and justice may require. All courts of record have a like jurisdiction as to all such complaints regarding matters arising in suits or proceedings in such courts.” (Emphasis supplied.) | [
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Black, J.
This appeal presents no reviewable question of substance. Plaintiffs, pained at the result below, would have us disagree with proof-supported and decisive findings of fact recorded by the trial chancellor; findings which, as our decisions boresomely disclose, are within the comparatively better province of one who sees and hears the controlling evidence as it comes from the lips and personal demeanor of disinterested as well as interested witnesses. It is an established truism that an appellate court is not as well equipped to do justice— the case being one of pure fact-dispute — as is the chancellor-trier of fact whose immediate task is that of personal appraisal of proof and witness. For elaboration, see Hayes Construction Company v. Silverthorn, 343 Mich 421, 428, 429; Barnes v. Beck, 348 Mich 286, 290, 291; Redding v. Snyder, 352 Mich 241, 250.
Such is the introduction I would make of an equity case which, considered from its 4 corners of fact, provides no ground for reversal.
Defendants owned and operated a “drive-in restaurant,” as it is known in the appendices, including the premises where the restaurant business was conducted. Plaintiffs, living nearby, regularly patronized the restaurant. Their daughter, a Mrs. Bryant, had worked in the restaurant — for defendants — some 7 months prior to the dealings we consider, and so was familiar with the volume of business done and the monetary intake thereof. In August of 1955 defendants advertised the property and business (Detroit News) as follows:
“Drive-In sell or lease average $170 day in new business, good location $35,000 Logan 27272.”
Following such publication fruitful negotiations for purchase and sale of the business and property were pursued by the present parties litigant. In October (following the date of publication) plaintiffs as purchasers, and defendants, as sellers, agreed upon and executed appropriate instruments in fulfillment of that which they had negotiated, plaintiffs by preliminary agreement having already taken over conduct of the business. Plaintiffs continued to carry on business until the month of March next, at which time they notified defendants that they were surrendering the premises and effecting a rescission on the ground of fraud.
Plaintiffs’ claims of fraud were duly brought into court by this bill for rescission. The fraud-essence of the bill is that the business was not averaging $170 per day as advertised (also represented) and that the size of the restaurant premises as conveyed to plaintiffs had been misrepresented by defendants. In latter regard plaintiffs say they were led to believe that the parking area of the restaurant premises was much larger than the portion which defendants actually owned and were able to convey. Defendants by answer denied such charges. So were framed the issues which came to consideration and resolution in the court below.
In a carefully considered and well reasoned opinion the chancellor ruled that plaintiffs had failed to prove fraud as alleged. A decree thereupon entered dismissing the bill. Plaintiffs’ instant appeal followed.
Plaintiffs complain rather bitterly that the chancellor ignored critical testimony of their witnesses, particularly that of plaintiff Blanche Gr. Vargo, and that the chancellor misapprehended or misunder stood other important testimony, particularly by finding that they — plaintiffs—learned definitely before final closing that a substantial part of the in-use restaurant parking area belonged to others and was available only by temporary lease. In general, plaintiffs’ counsel say “that there are at least 25 instances where the trial court misquoted, misinterpreted, or ignored, the testimony.”
These charges do not fare so well when tested by the pages of the respective appendices. The chancellor took dim view of Mrs. Vargo’s credibility. So far as the vicarious value of print fairly discloses, there appears no compelling reason for disagreement with such view. And Mrs. Vargo’s testimony is that which, in great part, makes or breaks plaintiffs’ case.
The pivot-findings below are that “The statement that the defendants were averaging $170.a day was true”, and, as to the remaining claim of fraud, that plaintiffs “had sufficient information to conclude that they would have very cramped parking space if she (the adjoining owner-lessor) terminated the rental agreement.” Unless this Court is to decide that Mrs. Vargo should be believed as against the defendants’ proof, and I am not so persuaded, we can do naught but hold that the quoted conclusions of the chancellor are amply supported by proof and that there is no valid reason for disturbance thereof.
The opinion below was recapitulated as follows:
“There is no principle more deeply ingrained in the law of this State than that fraud may never be presumed, but must be proved clearly and convincingly. The evidence in this case is neither clear nor convincing on that -subject, and certainly does not warrant branding Wilbur Ihlenfeldt as a defrauder. In fact, it merely indicates to this court that sometimes persons become so determined to carry out a course of action that no amount of advice, no amount of counsel, no amount of cautioning, can dissuade them from this predetermined course. The Vargos were not defrauded, and whatever situation they find themselves in at the present time was of their own making.”
I agree with such digest and the previously determined premises thereof. My vote, therefore, is for affirmance, with costs to defendants.
Dethmers, C. J., and Carr, Kelly, Smith, Edwards, Kavanagh, and Souris, JJ., concurred. | [
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Moore, J.
The plaintiff recovered a judgment against defendant for personal injuries received by her, occasioned by being precipitated from a highway bridge into the creek below. The assignments of error all relate to the charge of the court, or to his refusal to give certain requests proffered on the part of the defendant.
The record shows that the creek on which the bridge was constructed ran through what had been a cedar swamp. The bridge was planked with two thicknesses of plank. The lower plank were 14 feet long, and the upper, 12 feet long. The bridge constituted 8 or 10 feet of the highway. North of the bridge was a hill, the foot of which was about 10 rods away. South of the bridge was another hill. The bridge itself was about 3J feet above the water. The roadway from the base of one hill to the other was originally constructed by placing logs across the roadway, and filling upon top of them with dirt. The roadway was elevated some feet above the swamp, and was 11 or 12 feet wide. There was no railing upon the bridge itself nor upon its approaches.
It is the claim of plaintiff that upon August 7, 1897, she and her sister approached this bridge from the north, driving with a tight rein a gentle horse, hitched to a buggy or light wagon, the horse traveling upon a moderate trot; that, as the horse came upon the bridge, it took fright at a hole near the north side of the bridge, which was 6 to 10 inches wide and about 2 feet long, and suddenly shied; precipitating the vehicle and its occupants into the stream below, severely injuring the plaintiff. It is claimed that this hole in the bridge had been there since June, and was not far from the residence of the highway commissioner, who passed over the bridge frequently. It is claimed that because of the hole in the bridge, and the failure to erect a railing upon the bridge and embankment, the highway was not reasonably safe and fit for travel. It was the claim of defendant that the accident did not occur as the result of a defective bridge, but occurred because the horse got beyond the control of the driver when coming down the hill, and the wheels got out of the track, and ran off the roadway just as the conveyance got to the bridge. It is also claimed that, if there was a defect in the bridge, it had not existed long enough to create any liability. It is also claimed the horse was not safe to drive; that the hole was not the proximate cause of the accident, but that the horse probably got frightened at a bear or at children in the woods, or at a stump, and shied for that reason. Another defense interposed is that, as plaintiff passed over the bridge in the morning, and knew of its condition, she did not approach the bridge with that caution she ought. These various claims were submitted to the jury by the judge, and were passed upon by the jury. The only witnesses to the occurrence were the plaintiff and her sister.
The defendant asked the court to take the case from the jury “for the reason that plaintiff’s own negligence contributed to her injury, in that she drove the horse down the hill upon the bridge on a trot, in a reckless manner, and before she reached the bottom of the hill the horse was beyond her control, and consequently the injury resulted.” It is said in the brief that, as the horse pro ceeded down the hill, it increased its speed, and by the time it reached the bottom it was going at so rapid a pace that it became unmanageable and was beyond the control of the driver. This request and the argument of counsel are not based upon the record. It is true, some isolated portion of the testimony of the plaintiff, taken by itself, might be given such a construction; but the record discloses the plaintiff was a German, who understood and spoke English very imperfectly. She desired to give her testimony through an interpreter. It was thought best not to use an interpreter. It is perfectly clear from her testimony that, when she spoke of the horse as beyond her control, it related to the time when it saw the hole and suddenly shied, and did not relate to what occurred before the horse reached the bridge; while the testimony of the sister was very clear that the horse approached the bridge slowly, and that it was not until it shied that it got beyond the control of the plaintiff. In view of the testimony, it was very proper for the judge to refer the question of the negligence of the plaintiff to the jury, which he did in the following language:
.“It was the duty of the plaintiff, as a matter of law, to provide herself with a reasonably safe conveyance when going upon the public highway, and that she should have a reasonably gentle and safe horse, and the duty was upon her to exercise reasonable care and prudence in driving along this highway and over this bridge; and, if she failed or neglected to observe any of these precautions, she is, in law, guilty of what is known as ‘contributory negligence,’ and she cannot recover in this case. ‘ Contributory negligence ’ means that by her own carelessness or negligence she has contributed to her own injury. And, if she has done that, under the law she is not entitled to recover at all, as you cannot apportion the negligence.
“Now, the mere fact that the plaintiff might have seen this hole in the board when she drove over it in the forenoon of that day would not, of itself, constitute her guilty of contributory negligence in endeavoring to pass over that bridge again that evening. You have a right to consider the fact, to say whether, under the evidence, a reasonably careful and prudent person would have endeavored to cross that bridge, as she did, in the evening, knowing of the existence of the hole (if you find there was one, and she knew of its existence). And if you find that a reasonably careful and prudent person would not, having the knowledge she had, have offered to pass over that bridge, as she did on her return, then that would, amount to contributory negligence on her part. Having a knowledge (if you find she had) of the fact that there was a hole in the bridge, then it became incumbent upon her to exercise more care and caution in crossing the bridge the second time than she would have otherwise been called upon to do. In other words, if she knew there was some danger in crossing the bridge,- — if she realized that, — with the hole in it, then she would be expected to exercise care and caution proportionate to the risk she ran.”
We do not think the defendant can complain of this charge. Bouga v. Township of Weare, 109 Mich. 520; Whoram v. Township of Argentine, 112 Mich. 20; Schwingschlegl v. City of Monroe, 113 Mich. 683, and cases cited there.
It is also claimed that the court erred in submitting to the jury the question whether the township was guilty of negligence in failing to provide railings to the bridge. It is said there was no dispute about the size of the bridge and the width of the stream, and the court ought to have said, as a matter of law, that the township was under no obligations to provide railings. That portion of the charge reads as follows:
“Now, the defendant in this case denies that the bridge was in the defective condition claimed by the plaintiff. It is admitted that there were no railings on the sides of this bridge. And I leave it to you, as a matter of fact, to say whether or not — when you consider the manner in which this bridge was constructed, its height above the water course, the condition of the road, and the entire surroundings —it was the duty of the defendant township •to have constructed a railing along the sides of the bridge. That only becomes important for you to consider if you determine that the absence of the railing was in any manner the cause of the injuries which she sustained, and that these injuries were not caused by her own contributory negligence. ”
If what has just been quoted was all the judge said, it is possible it would have presented the case to the jury improperly; but he continued his charge by saying:
“ The defendant claims that the accident was not caused by reason of her horse shying at a hole in- the bridge, but that in some way she lost control of the horse on its way down the hill; and they claim that the horse or carriage had been — partly, at least — out of the regularly-traveled highway for some distance before it reached the bridge, and that the front wheel of the carriage struck the corner of the bridge, and tipped it and her over into the creek. Now, if you find that that is true, — if you find that the accident in this case was not caused in any way by the condition of the bridge, that the horse didn’t become frightened at a hole in the bridge, — then the plaintiff in this case cannot recover. * * * Now, I will call your attention more particularly to some of the questions of fact which you must determine in this case. First, perhaps, would be, as suggested by counsel, Was the bridge reasonably safe and fit for public travel ? If you find that it was, you should not discuss any other subject or question in this matter, because that would then put an end to plaintiff’s case. If that bridge was reasonably safe and fit for public’travel at the time she attempted to pass over it on her way going south that day, then the plaintiff cannot recover in this case.”
The same statement was made to the jury in other portions of the charge. It is quite apparent that the juiy must have understood that, before a verdict could be returned in favor of plaintiff, they must find the accident resulted from the defective bridge. The defendant denied that the bridge was defective. This raised a question for the jury, and not for the court. Harris v. Township of Clinton, 64 Mich. 447 (8 Am. St. Rep. 842); Shaw v. Township of Saline, 113 Mich. 342; Perkins v. Township of Delaware, Id. 377. If the jury believed the testimony offered on the part of the plaintiff, there was an abundance of testimony upon which to base the finding.
The court failed to give some of the defendant’s requests to charge. This is said to be error.. Some of the requests failed to contain all the essentials which made them proper requests to be given, and for that reason were properly refused. Others of them were fully and completely covered by the general charge. The questions involved are not new, but have recently been passed upon by this court, so that a discussion of them would be unprofitable.
Judgment is affirmed.
Montgomery, J., concurred with Moore, J. | [
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Grant, C. J.
(after stating the facts). 1. It is urged that the writ of mandamus will not lie against respondent, because the action was wholly within his discretion and judgment. No such discretion is lodged in the auditor general. When one has complied with the law in applying to purchase state lands, he is entitled to his deed or patent. When a void deed has been issued, and the original owner applies to the auditor general, tenders the full amount of taxes due, and demands a certificate of error, he is entitled to it, and the auditor general cannot refuse it. Mandamus is the proper remedy to compel performance, and determine the validity of the reasons for refusal.
2. Relators are not in position to question the method of payment between the auditor general and tax-title purchasers. The auditor general saw fit to accept the check in payment. It was paid, and the deed issued. This point is ruled by People v. Commissioner of State Land Office, 19 Mich. 470.
3. It is urged that, the deposit of $100 November 30th being more than sufficient to pay the taxes due on the first description, Garner and Brown were entitled to deeds for the descriptions in the order named in the application, under People v. Commissioner of State Land Office, 23 Mich. 270. That case applies only to selections of lands' under some law or grant from the government. It does not apply to purchasers. Webster v. Newell, 66 Mich. 503. This application was to purchase certain parcels of land. There was nothing in it or outside it to indicate that Garner and Brown intended to take one piece if they could not get all. The application was treated as an entirety; for the next day they completed their right, as they supposed, by paying the balance due. The purchase was not, therefore, completed until December 2d, when the second check was received by the respondent. At that tima the taxes of 1896 had become a lien, and should have been paid, to entitle Garner and Brown to a deed. Hughes v. Jordan, 118 Mich. 27.
The writ will issue, but without costs.
The other Justices concurred. | [
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] |
Moore, J.
This is a proceeding brought to test the validity of an act approved March 24, 1899, entitled “An act to authorize the city of Detroit to construct, acquire, maintain, and operate street railways, and to construct' extensions thereof.” Act No. 338, Local Acts 1899. The provisions of the act material to this discussion are as follows:
“ The people of the State of Michigan enact:
“Section 1. That the common council of the city of Detroit be, and is hereby, authorized and empowered to appoint by resolution, at any time within the next 20 years, three persons, electors and freeholders of said city, who shall constitute a board of commissioners, to be known as the Detroit Street-Railway Commission. One of said commissioners shall be appointed for the term of two years, one for a term of four years, and one for a term of six years. Their successors shall be persons of like qualifications, and shall be appointed by the common council on the nomination of the mayor of said city, at the éxpiration of said term, for the term of six years. Vacancies shall be filled by appointment by the mayor, and persons so appointed shall hold office for the unexpired term. All members of said commission shall hold their “offices, respectively, until their successors are appointed and qualified. Any person otherwise eligible may be appointed as aforesaid, notwithstanding he may hold other office, excepting that of alderman.”
“ Sec. 5. The said commission may in their discretion, and upon such terms and conditions as they may deem advisable for the interests of said city, acquire, by deed, lease, or other satisfactory conveyance from the company or companies owning the same to said city, any street railway or railways existing at the time of the passage of this act, and lying wholly within or partly within and partly without said city, operated by the same company or companies, together with the property, assets, rights, privileges, etc., owned and used in connection with or pertaining to said railways, including rights to routes belonging to such company or companies upon which a railway shall not be in operation, and may operate and maintain said street railways, so acquired, for the carriage of passengers and freight for hire.
“Sec. 6. Said commission may provide for the payment of rentals or other obligations, and may provicle for a sinking fund for the discharge of any liens upon any of the property acquired by them, and may pledge the earnings and receipts of said railways for these purposes, and may use the earnings in operating and maintaining the same, and may use any surplus of earnings in acquiring any bonds secured by lien upon the property so acquired, or may use such surplus in making needed extensions or betterments to said railways. Said commission shall have no power to incur any obligation on behalf of said city, except such as shall be chargeable only upon the railways and property so acquired, and the earnings and increments and extensions thereof.
“Sec. 7. The said commission shall manage, maintain, and operate any street railway so acquired or extended, and may purchase from the revenues thereof all lands, tracks, cars, motors, dynamos, machinery, equipment, tools, and furniture necessary and useful therefor to be used in connection therewith, and may establish rates of fare for the carriage of passengers and freight, provided the rates of fare shall not exceed those now charged by the Detroit Citizens’ Street-Railway Company. In operating any railway so acquired, the commission may exercise such other general powers as are possessed or exercised by boards of directors of corporations .organized under the laws of this State providing for incorporation of street-railway companies.
“Sec. 8. After acquiring any railway or railways pursuant to section five hereof, said commission shall have the power to enter into agreements with any street-railway company, having a line of street railway, for or in relation to the exchange of tickets and transfers, and for the carriage of passengers, use of tracks, or operation of cars: Provided, that such agreements shall not be inconsistent with or in violation of the terms of the conveyance or contract mentioned in section five hereof. ”
“ Sec. 11. All causes of action relating to or arising out of the owning, operating, or control of any street railway constructed or acquired by said commission shall be prosecuted by or against said commission by the name herein designated, and said commission shall carry into effect, pay, or discharge any order, decree, or judgment, in any suit or proceeding to which it shall be a party, in like manner as if the same were prosecuted or defended by said city: Provided, that no action for negligent injury arising out of the operation of said railways shall be maintained unless it be commenced within one year from the time when the injury was received, nor unless notice shall be given in writing, within thirty days from the time of such injury, to the said commission, its secretary or attorney, of the time, place, and circumstances of such injury, and of the nature thereof.
“Sec. 12. Nothing in this act shall be construed as granting any franchise to any of the existing street-railway companies, or as extending the life of any existing franchise, or as implying any franchise rights in case of reversion of the property to the grantors or their successors ; and said commission is hereby expressly prohibited from granting or extending the life of any franchise under any of the powers conferred upon it by this act.”
After the passage of the act, the common council, at an adjourned special meeting, appointed the respondents as members of the commission, and they at once entered into negotiations for the purchase of the various street railways in Detroit.
The case is one of vast importance, not only because of the magnitude of the interests involved, but also because the law proposes an entirely new departure in this country, in relation to the ownership and management of one of the most important interests in the business world. We are not favored with precedents which will aid us, -because, with all of their zeal and ability, counsel have not been able to find where an undertaking just like this has been entered upon. We have, however, had the benefit, not only of well-prepared written briefs, but of such oral arguments as the learned counsel, who have given the questions involved special thought and investigation, cared to make. We have endeavored to-give the case such attention as its importance deserves.
It is claimed on the part of the attorney general that the act is unconstitutional and void for the following, among other, reasons:
“1. Because said act undertakes to confer upon the city of Detroit authority to engage in a work of internal improvement, contrary to the provisions of section 9 of article 14 of said Constitution.
“2. Because said act undertakes to cqnfer upon a municipal corporation powers which are neither local, legislative, nor administrative, contrary to the provisions of section 38 of article 4 of said Constitution.
“3. Because said act purports to give to said Detroit Street-Railway Commission, mentioned in said act, unlimited and unrestricted power to contract debts for, and loan the credit of, said city of Detroit, contrary to the tenor and effect of section 13 of article 15 of said Constitution, which provides that the legislature shall provide for the incorporation and organization of cities and villages, and shall restrict their powers of taxation, borrowing money, contracting debts, and loaning their credit.
“4. Because the powers to contract and purchase, sought to be conferred by said act upon said Detroit Street-Railway Commission, cannot be either conferred upon or exercised by said commission, under said Constitution.
“5. Because said act attempts to clothe said Detroit Street-Railway Commission with legislative powers as to street railways, and the operation and management of the same.
“6. Because said act is an unlawful interference with the rights of local self-government vested by said Constitution in the citizens of said city, in that it undertakes to take out of the control of the common council and board of estimates of said city the several matters of purely local concern above mentioned, and vest the same in the said Detroit Street-Railway Commission, which is a body the members of which hold their offices for long, appointive terms, are a law unto themselves, and are subordinate and responsible neither to said citizens nor to their representatives, in any manner or form.”
Is the act contrary to section 9, art. 14, of the Constitution? The section reads as follows:
“ The State shall not be a party to, or interested in, any work of internal improvement, nor engaged in carrying on any such work, except in the expenditure of grants to the State of land or other property.”
It is doubtless true, as urged by counsel, that the State legislature is given a general grant of legislative power, and that its power to legislate is subject only to such limitations as are imposed thereon by the express or implied limitations contained in the Constitution of the State or the Constitution of the United States. To understand the force and effect of the provisions of our Constitution in relation to the attitude of the State towards internal improvements, it may be well to consider the experience of other States and of our own State prior to the adoption of our present Constitution. The war of 1812 demonstrated the great need of a better system of intercommunication between the various portions of the country. The condition of the highways, both land and water, was such that troops and provisions could be moved but slowly and at great expense. This was also true of the products of the country. Succeeding the war of 1812, the State of New York entered upon the construction of the Erie Canal. Its construction was doubtless of great benefit to the agricultural and commercial interests of the State, and especially to the city of New York. Other States were prompted to follow the lead of New York, and projected the digging of canals, the improvement of waterways, and the construction of railroads. Nearly all the State Constitutions adopted between 1830 and 1850 either gave the legislature permission, or made it mandatory, to “encourage internal improvements within the State.” Many enterprises of this character were entered upon which were ill-advised. So many of them were undertaken, many of the States incurred obligations they were unable to meet. The rate of interest in these new countries was much higher than capital commanded in Europe. Money from' there after 1830 was furnished almost without limit, to be invested in the various projects devised by the several States. The State debts increased from $13,000,000in 1830 to $100,000,000 in 1838. After the financial crisis of 1837 came, foreign capitalists who sought to draw out this money were unable to do so. An effort to collect these obligations proved abortive. Upon one pretext or another, many of the States repudiated their debts made for internal improvements. The States most disastrously affected were Maryland, Pennsylvania, Indiana, Illinois, Louisiana, Mississippi, and our own State. 2 Cycl. Pol. Science, 571.
For the period between 1835 until the financial panic of 1837 occurred, the State of Michigan had a wonderful growth. The opening of the Erie Canal, and the facilities for travel furnished by the Great Lakes, made it comparatively easy for the residents of New York, New Jersey, and New England who were seeking to better their condition to reach our borders. The climate was good, and the soil was fertile. The example of New York in constructing works of internal improvement was thought worthy of imitation. The Constitution adopted upon the admission of the State into the Union provided:
“Internal improvement shall be encouraged by the government of this State; and it shall be the duty of the legislature, as soon as may be, to make provision by law for ascertaining the proper objects of improvement in relation to roads, canals, and navigable waters, and it shall also be their duty to provide by law for an equal, systematic, economical application of the funds which may be appropriated to these objects.” Const. 1835, art. 12, § 3.
The governor of the new State, in a message to the legislature, called its attention to its duty to act under the constitutional provision. The legislature was not slow to respond. A canal was projected from Mt. Clemens to the mouth of the Kalamazoo river, and one around the falls of the St. Mary. A number of State railroads were surveyed, and their construction entered upon. To meet the expense, the governor was authorized to borrow, upon State bonds issued for the purpose, $5,200,000. These bonds were' all negotiated, though, owing to the failure of one of the companies and one of the banks which undertook to negotiate them, the amount for which they were negotiated never found its way into the State treasury. It became evident the amount of the loan would not begin to complete the internal improvements already begun. Then came the financial panic. Bankruptcy and financial ruin were upon every hand. The State, at a great sacrifice of its property, made an arrangement with its creditors which left its credit good, but left it very badly in debt. Cooley, Hist. Mich. 279; Camp. Hist. Mich. 495.
As the result of this experience, the State had the canal at the St. Mary’s river, which was afterwards taken over, by the Federal Government, and is now one of the most important improvements upon the Great Lakes; a short section of a canal, which has never been of any use, except to furnish water-power to private parties; and some uncompleted railroads, which the people were glad enough to have sold to private corporations. Justice Cooley states the situation in detail (Cooley, Hist. Mich. 289):
“The works of internal improvement still remained on the hands of the State, and in the day of its poverty and trial they were continually calling upon a depleted treasury for money to keep them in -progress. But, now that the great bubble of speculation and inflation was burst, it became plain to the comprehension of the dullest that some of the State projects were wild and chimerical, and they were abandoned altogether. Such was the case with the projected canal from Mt. Clemens to the mouth of the Kalamazoo river, which it was now seen would be worthless if constructed. The only works of much promise were the Central and Southern of the three railroads, which were now very well under way. But doubts were arising in the minds of the people whether the State had been wise in undertaking the construction and management even of these, — whether it was possible for the State to do either the one or the other with the same prudence and economy as could private owners. These doubts soon matured into a settled conviction that the management of railroads was in its nature essentially a private business, and ought to be in the hands of individuals. By common consent it came to be considered that the State, in entering upon these works, had made a serious mistake; and the legislature, in an act for funding the loan bonds, invited proposals from State creditors for the purchase of the' State railroads. The times were not then propitious; but in 1846 the Central and Southern Railroads, so far as they were then constructed, were sold by the State to corporations which had been chartered for the purpose of purchasing. The aggregate price was two millions and a half, — a sum very much below what had been their - cost to the State. But the people felt that the roads were well off their hands, and, as has been said by one familiar with the whole history : ‘ Here virtually ceased to exist all our works of internal improvement. Nothing but the debris of our airy castles remained, and that only to plague our recollec-' tions.’ The two great railroads, when taken up by corporations, went rapidly forward to completion; and they soon became great national highways, whose utility to the State was quite equal to the highest expectations ever formed concerning them.
“Having all their bitter experience with internal improvements fresh in mind, when they formed a new Constitution, in 1850, the people resolved to put it out of the power of the legislature again to involve them in extravagant projects. And here we reach another landmark, significant in itself, but especially notable when contrasted with the provision respecting internal improvements which has already been quoted from the Constitution of 1835. In 1850 the people deemed it necessary to prohibit what in 1835 they commended, and they now provided that ‘ the State shall not subscribe to, or be interested in, the stock of any company, association, or corporation,’ and also that ‘the State shall not be a party to, or interested in, -any work of internal improvement, nor engaged in carrying on any such work, except in the expenditure of grants to the State of land or other property.’ These were very positive provisions, and by adopting them the people believed they had rendered it impossible that projects of doubtful wisdom and utility should be engaged in at the public cost.
“But diseases in the body politic, like those in the human system, are likely to take on new'forms from time to time, and they are not to be exorcised by words or kept off by constitutional inhibitions. The mania for internal improvements at the cost of the public, when it returned 15 years later, under the administration of Grov. Crapo, took on the form of aid to railroad corporations by the several municipal bodies in the State. Such aid was being given in other States, and railroads, as a consequence, were being constructed with a rapidity never paralleled, Michigan was lagging behind the rest of the country. Why should this be so ? Every town which should subscribe to the stock of a railroad would immediately receive a full return in the enhanced value of its landed property, and would have the stock besides. This was what was commonly said and commonly believed; and the legislature, well reflecting the common desire, passed a general law under which townships and cities were to be permitted to vote aid to railroads. The railroads, under another general law, might be laid out anywhere by the projectors, at pleasure, so that monopoly in these public conveniences seemed to be effectually provided against. The governor vetoed the railroad-aid act, but the legislature passed it over his veto. The business of voting aid to railroads was soon active, and the most visionary scheme was found as likely to receive aid as any'other, — perhaps more so, for more work would be done for it. Nothing is so easy as to build railroads, if it can be accomplished by dropping votes into a box. Only fossils and croakers will disturb the public mind by reminders that the sums voted must at some time be paid, and that the roads, when built, may pay nothing towards them. The State, in detail, by its corporations, was fast plunging into indebtedness, which had already reached an aggregate of several millions, when the process was arrested by a decision of the State Supreme Court that the act under which the voting had taken place was unconstitutional. The decision was a bitter disappointment to many, and the public clamor for a time was loud and earnest; but a movement to obtain an amendment to the Constitution which would permit . such municipal aid to railroads was unsuccessful, and the excitement soon died out. The people had taken the ‘sober second thought/ and had become convinced that municipal corporations, in their power to contract debts or to expend public moneys, should be confined closely to proper municipal purposes. And this conclusion may be taken as a third conspicuous landmark in the history of internal improvements in Michigan.”
The cases referred to by Justice Cooley were People v. Township Board of Salem, 20 Mich. 487 (4 Am. Rep. 400); People v. State Treasurer, 23 Mich. 499; and Thomas v. City of Port Huron, 27 Mich. 320.
We think it may fairly be said of the case of People v. Township Board of Salem that the opinion was rendered upon the ground that the tax proposed would be levied for a private rather than a public purpose. This, however, cannot be said of the case of' People v. State Treasurer. In the last-named case it was held that the construction of the railroad was an internal improvement, within the meaning of the Constitution, and that what the State could, not do, it could not authorize the townships, and cities to do. The language of the opinion is not susceptible of any other .construction. It is very clear from what has been quoted from the history of Michigan, written by Judge Cooley, and published in 1885, that he so construed the decisions cited. The language of the opinion is as follows:
“ Our State had once before had a bitter experience of the evils of the government connecting itself with works of internal improvement. In a time of inflation and imagined prosperity, the State had contracted a large debt for the construction of a system of railroads, and the people were oppressed with heavy taxation in consequence. Moreover, for a portion of this debt they had not received what they bargained for, and they did not recognize their legal or moral obligation to pay it. The good name and fame of the State suffered in consequence. The result of it all was that a settled conviction fastened itself upon the minds of our people that works of internal improvement should be private enterprises; that it was not within the proper province of government to connect itself with their construction or management; and that an imperative State policy demanded that no more burdens should be imposed upon the people by State authority for any such purpose. Under this conviction they incorporated in the Constitution of 1850, under the significant title of ‘Finance and Taxation,’ several provisions expressly prohibiting the State from being a party to, or interested in, any work of internal improvement, or engaged in carrying on any such work, except in the expenditure of grants made to it, and also from subscribing to, or being interested in, the stock of any company, association, or corporation, or loaning its credit in aid of any person, association, or corporation. Article 14, §§ ?-9. All these provisions were incorporated by the people in the Constitution as precautions against injudicious action by themselves, if in another time of inflation and excitement they should be tempted- to incur the like burdensome taxation in order to accomplish public improvements in cases where they were not content to wait the result of private enterprise. The people meant to erect such effectual barriers that, if the temptation should return, the means of inflicting the like injury upon the credit, reputation, and prosperity of the State should not be within the reach of the authorities. They believed these clauses of the Constitution accomplished this purpose perfectly, and none of its provisions had more influence in recommending that instrument to the hearty goodwill of the people.”
The doctrine of these cases was again affirmed in Thomas v. City of Port Huron, 27 Mich. 320. These cases all hold that what the State cannot do itself cannot be done through the aid of inferior municipalities.
Counsel urge that the doctrine announced in People v. Township Board of Salem, People v. State Treasurer, and Thomas v. City of Port Huron was never accepted as correct by the profession in this State, and is contrary to the decisions of other courts. If we understand the logic of the argument, it is that those cases should be overruled. We have had occasion recently .to consider a contention of like character, and supposed we had so clearly expressed ourselves that the doctrine of those cases could no longer be questioned. We do not deem it necessary to repeat what was said upon that subject in Dodge v. Van Buren Circuit Judge, 118 Mich. 189.
Counsel suggest it is as competent to authorize the city to own and operate a street railway as to acquire and maintain a public park, waterworks, a lighting plant, or a fire department, or to construct drains or to build sewers. It may be somewhat difficult to draw the line as to what a municipality may properly do and what it may not do, but all the things above mentioned are authorized and defended because it is a proper exercise of the police power. An adequate supply of water is needed for protection against fire. 1 Dill. Mun. Corp. (4th Ed.) §§ 144, 146.
“There can be no matter of higher public concern to every city than the supply of pure and wholesome water, for all useful purposes; and as population becomes more and more compact, and cities grow, the ability of the individual member of the municipal corporation to supply his individual wants in that direction constantly diminishes, and in all the larger places it becomes a matter of absolute public necessity that the city itself should directly, or indirectly provide the supply. Nothing else so directly and materially affects the health of the community as the character of its water supply.” Prent. Police Powers, 303. Drains and sewers and parks are all needed in the interest of public health. 2 Dill. Mun. Corp. (4th Ed.) § 598; Kinnie v. Bare, 68 Mich. 625; Prent. Police Powers, 56, 131, 242. Lighted streets tend to the prevention of crime. Police powers have their origin in the law of necessity. Id. 4. The exercise of these powers has little in common with what is sought to be done here.
It is urged that the internal improvements contemplated by the Constitution must be of sufficient magnitude to concern the people of the State (citing Sparrow v. Commissioner of State Land Office, 56 Mich. 575), and that street railways are mere local improvements, or a strictly local interest, not known at the time the Constitution was framed, and are not such improvements as are contemplated by the phrase “internal improvements” (citing Detroit Citizens’ St. Ry. Co. v. City of Detroit, 12 C. C. A. 365, 64 Fed. 628; Detroit City Ry. v. Mills, 85 Mich. 634). It is not claimed these cases are directly in point, but that some statements contained therein lead to the conclusion just stated. The questions involved in this case were not at issue in the cases cited, and the opinions do not tend, in our judgment, to support the contention of counsel. We shall have occasion later to consider whether the improvements are of sufficient magnitude to be deemed internal improvements.
It is said, if the theory of the relators is sound, the city of Detroit cannot construct a macadamized road, or pave a street, or build a sewer. It is a complete reply to this suggestion to call attention to the fact that by sections 23 and 38 of article 4, and section 1 of article 11, the Constitution has given to townships the control of highways, and to the cities and villages the control of the streets, for all purposes germane to their use.
It is said that, while steam railroads are in a sense public highways, in another and legal sense they are not public highways, but that street railways are in every proper sense public highways, public utilities of a local character, and are not internal improvements, within the meaning of our Constitution. Our attention is called to the case of Sun Printing, etc., Ass’n v. Mayor, etc., of New York, 152 N. Y. 257 (37 L. R. A. 788), as sustaining this contention. It is true, that case holds that it is within the legislative power to authorize the city to construct a street railway under the streets of New York, and, when constructed, to lease it for not less than 35 nor more than 50 years, at a rental not less than the interest paid by the city for the construction, and 1 per cent, in addition. The writer of the prevailing opinion stated that the case was not free from difficulty, and the court considered the case, “ hoping to reach a result that will afford necessary relief to the people of the city and at the same time preserve the general policy of our system of government.” It appears in that case that, pursuant to the provisions of the act, the commissioners entered upon their duties, and located a road to be built under the streets, through the main portions of the city, and then tried to induce private capitalists to undertake its construction. No private capitalists were willing to undertake the construction of the road, and it was undertaken by the commissioners for the city. In the course of the discussion, reference is made to certain cases decided by the Ohio court, and this language is used:
“We do not understand that the views above expressed are in conflict with the Ohio cases. In that State the constitution does not limit municipal expenditures to ‘a city purpose.’ We do not, however, wish to be under stood as approving of those cases, especially in so far as they sustain the right of a city to construct a railroad mainly outside of its own territory and state.”
In conclusion, the opinion is as follows:
“ Our government was established by the people for their own protection and welfare. Their policy was to foster and protect individual industry and enterprise. To such policy we owe our advancement as a nation, and to such we must look for our future prosperity. The constitution should .be construed with reference to this general policy, and ordinarily railroads should be constructed and operated by private capital. The situation, however, in the city of New York, is most peculiar. A long, narrow island lies between two rivers, — so narrow in places that there are practically but two or three streets through which the masses must reach its business center. The population of the city during the last half century has-increased from three hundred thousand to over a million and a half of people. The travel upon its existing railroads during the last twenty years has increased from one hundred and fifty millions in 1874 to upwards -of four hundred and forty-eight millions in 1894. It was conceded upon the argument that the crowded and congested condition of the travel upon the streets in the city renders the proposed structure necessary. These considerations have induced us to give to the provisions of the act a most liberal construction. The commissioners located the road, and tried to induce private capital to construct and operate it. In this they have failed, and the situation is such that the city must itself construct the road, or go without it. Here we have a demand for a great public highway, which private enterprise and capital will not construct. It is necessary for the welfare of the people, and is required by them. It is public in character, and is authorized by the legislature. Our conclusion is that, under the circumstances and situation here presented, the proposed road may properly be held to be ‘ for a city purpose,’ and that the acts are not in contravention of the provisions of the constitution.”
The doctrine stated in the Ohio case cited (Walker v. City of Cincinnati, 21 Ohio St. 14 [ 8 Am. Rep. 24]) is contrary to the holdings of this court, as has already been shown, and cannot be reconciled with the later cases of Taylor v. Commissioners of Ross Co., 23 Ohio St. 22; Wyscaver v. Atkinson, 37 Ohio St. 80; and Counterman v. Township of Dublin, 38 Ohio St. 516. It is evident that the conclusion reached in the prevailing opinion is based upon the ground that because of the crowded condition of the city, and its peculiar shape, the improvement was a necessary one, and that, as private capital and enterprise would not enter upon its construction, it was lawful to authorize the city to do so. None of the conditions existing in New York, justifying the city, if it was justified, in entering upon the construction of the road, exist in Detroit. The city is already 'well supplied with means of transit, and, if abuses exist in the management, the authorities have ample power to correct them. The dissenting opinion in the case is more in harmony with the law in this State than is the prevailing opinion.
We are not entirely without light in relation to what constitutes an internal improvement, within the meaning of «the Constitution. We have already seen that steam railroads come within the category. In the case of Ryerson v. Utley, 16 Mich. 269, it was held that an attempt to improve the navigation of the Muskegon river by removing therefrom sand flats came within the constitutional inhibition. In People v. Township Board of Springwells, 25 Mich. 153, it is said that a macadamized road is a work of internal improvement.
“The shortness of the road does not change its character. The restriction is not against great works, but against all works of that kind, and the case comes within the language and intent of the prohibition.”
The court held that work of that character must be done by the local authorities, because, under the Constitution, they had been intrusted, as we have already stated, with the care of the highways.
In Anderson v. Hill, 54 Mich. 477, it was held that a township could not be" authorized to vote money to aid in deepening or straightening the Dowagiac river, because it was an internal improvement. The' court said:
“That the straightening or otherwise deepening the channel of the Dowagiac river, in Van Burén county, expresses a work of internal improvement, needs no argument. * * * If the legislature has the authority to pass a law permitting the majority of the legal voters of a particular township to impose a tax to aid the State in the work of an internal improvement, it has the authority to impose such by direct enactment, without the intermediate step of a vote of the people, and against their wish; and the rule is well settled, if it has not the power to impose such tax directly, it cannot authorize the imposition of the tax indirectly, through a vote of the municipality or people.”
In Sparrow v. Commissioner of State Land Office, 56 Mich. 567, it was held that straightening and -opening the channel of Cedar river was an internal improvement, though the decision was put upon another ground. Justice Campbell used this language:
“There can be no doubt of its being a work of internal improvement. That phrase is as broad as language can make it. It can make no difference for what direct "or indirect purpose of public utility an improvement is made, so long as it comes within such a definition, and it can make no legal difference over how much of the State it passes. All works of convenience, whether for travel, drainage, or irrigation, are similar in their nature when small and large, and works for all of these purposes have been made of all dimensions, and for large and small districts. It is impossible to draw any line of magnitude. Any such work that is deemed important enough for the State to construct is within the rule, and, if not built in the permitted way, is within the prohibition.”
Justice Champlin agreed with this statement, while' Justice Cooley said he did not intend to question the correctness of the decision in Ryerson v. Utley and People v. Township Board of Springwells.
In Wilcox v. Paddock, 65 Mich. 23, it was held that the straightening and deepening of Maple river was an internal improvement, within the meaning of the Constitution.
The constitution of Minnesota has a provision that “the State shall never contract any debts for works of internal improvement, or be a party in carrying on such works.” Const. Minn. art. 9, § 5. A bill was passed providing for a board of railway and warehouse commissioners, who were authorized to erect a State warehouse or elevator at Duluth, for public storage of grain. This was held to come within the constitutional inhibition, and the learned judge enters upon an extended discussion of what constitutes internal improvements, and the authorities relating thereto. It is too long to insert here. This language is used in the opinion:
“The time was when the policy was to confine the functions of government to the limits strictly necessary to secure the enjoyment of life, liberty, and property. The old Jeffersonian maxim was that the country is governed the -best that is governed the least. At present the tendency 'is all the other way, and towards socialism and paternalism in government. This tendency is perhaps to some extent natural, as well as inevitable, as population becomes more dense, and society older and more complex in its relations. The wisdom of such a policy is not for the courts. The people are supreme, and, if they wish to adopt such a change in the theory of government, it is their right to do so. But in order to do it they must amend the constitution of the State. The present constitution was not framed on any such lines.” Rippe v. Becker, 56 Minn. 100.
When the reasons arose for placing in the Constitution the provisions in relation to internal improvements, judged from our standpoint, the railroads were imperfect. Their passenger cars were not much heavier than the large stage coaches, and would carry from 18 to 24 passengers. In many instances the rails were flat bars of iron, less than an inch thick, laid upon rails of wood, and kept in place by spikes. The roadbeds were not well graded nor heavily ballasted. The locomotives weighed from two to six or seven tons. Cars were passed over the steeper grades by counterweights of box-cars, weighted with stone, which balanced them like window weights balance window sash. As there were no long railways, there was no freight ing, except light articles, for any considerable distance. The rolling stock was cheap and scanty. Great weight and great speed would have destroyed the tracks. The entire cost of building what is known as the “Michigan Central Road,” to Marshall, was about $2,000,000, and it ' is probable the value of all internal improvements entered upon by the State was less than $5,000,000. Camp. Hist. Mich. 484.
The pleadings show that the various street-railway companies own and operate in Detroit 141 miles of street railways, which the respondents propose to take over. If the tracks inside the car barns and abandoned tracks be added, the single-track mileage is about 179 miles. There is a bonded debt upon these roads of upwards of $10,000,000, and their property is regarded as worth between $5,000,-000 and $17,000,000. It is currently reported that the commission propose to pay upwards of $16,000,000 for this property, besides assuming its indebtedness. By virtue of agreements made between these companies, there are run on their lines in Detroit cars owned by other companies, which start from Pontiac, Oakland county; Mt. Clemens, in Macomb county; Ann Arbor, in "Washtenaw county; and the city of Wyandotte, in Wayne county. The tracks of these roads are laid in a very substantial manner. The cars of the outside roads will accommodate 50 to 75 passengers each, are of great size, and run at frequent intervals. It is a matter of common knowledge that over some of these lines cars marked “special” are now run at frequent intervals, carrying freight. An electric road is now projected from Ann Arbor to Lansing, and from other of the lines now reaching Detroit to various points in the interior of the State. This method of transit, or some improvement thereon, is yet in its infancy.' It does not require one with the ken of a prophet to see that in the near future the villages and cities of. the State will be connected with a network of methods of rapid transit.
By the terms of the act (section 5), it is provided that—
“The said commission may in their discretion, and upon such terms and conditions as they may deem advisable for the interests of said'city, acquire, by deed, lease, or other satisfactory conveyance from the company or companies owning the same to said city, any street railway or railways existing at the time of the passage of this act, and lying wholly within or partly within and partly without said city, operated by the same company or companies, together with the property, assets, rights, privileges, etc., owned and used in connection with or pertaining to said railways, including rights to routes belonging to such company or companies upon which a railway shall not be in operation, and may operate and maintain said street railways so acquired, for the carriage of passengers and freight for hire.”
Section 8 provides that, after acquiring any railway pursuant to section 5, the “commission shall have the power to enter into agreements with any street-railway company, having a line of street railway, for or in relation to the exchange of tickets and transfers, and for the carriage of passengers, use of tracks, or operation of cars,” provided such agreements shall not be contrary to the provisions of section o.
It is stated in the brief of one of the counsel for respondents that during the past year the railways of Detroit carried 45,000,000 passengers. The steam roads of 1850, crude as they were, provided improved methods of moving passengers and freight over what had before been in vogue. The electric roads of 1899 are still greater improvements for the same purpose. The rails used by the electric railway are much heavier and more substantial. The track is much more substantial than those used prior to 1850. The cars will accommodate three or four times as many people. The transit is much more rapid. The entire cost of all the improvements entered upon by the State would not amount to one-half the amount which the record discloses the commissioners expect to pay for the property they intend to take. To say the system of railroads as it existed in 1850 constituted internal improvements, within the meaning of the Constitution, and that the system of roads existing in Detroit, which are to be taken over by this commission, and the lines leading thereto, with which said commission are allowed to make agreements for deeds, leases, and in relation to the exchange of tickets and transfers, is not a system of internal improvements, within the meaning of the Constitution, is to deny to words in common use their ordinary and accepted meaning. If the legislature may authorize the city of Detroit to enter into the proposed arrangement, it may authorize any other municipality to do so, and, by concert of action between the various municipalities, they may cover the State with means of rapid transit, owned and operated by the municipalities. This would enable the State to do, by means of agencies called into being by itself, what it cannot itself do, and what the Constitution forbids its doing.
It is said that the Constitution was adopted a long while ago, and that this is a gigantic age, in which enterprises are being formed on a scale so vast as to be almost beyond comprehension, and the Constitution ought to be given a construction in keeping with the spirit of the age. This argument is more properly addressed to the people than to the courts. Constitutions do not change as public opinion changes. Their provisions do not mean one thing one day and another another day. The written Constitution is the most solemn declaration of the people in relation to the powers of State. It was drawn by their representatives selected especially for that purpose. It had their approval at the polls. Every officer of every kind in the State is required to take an oath to support it, before he can enter upon the duties of his office. It is not a pleasant duty to declare that a law passed by the legislature and approved by the governor is not valid. When such a law is enacted, courts cannot for a moment hesitate in performing that duty, disagreeable as it is. The provisions of the Constitution involved in this controversy have been in existence for nearly half a century. As we have already shown, they were construed along the lines of this decision nearly 30 years ago. The people of the State have not indicated in the way provided by the organic law any dissatisfaction with these provisions. The courts cannot substitute their judgment of what the Constitution ought to be for what the people have made it. Its provisions must remain and control until the people see fit to change them in the way provided by the Constitution itself. McPherson v. Secretary of State, 92 Mich. 377 (16 L. R. A. 475, 31 Am. St. Rep. 587).
It is not necessary to discuss the very serious question whether a commission could be authorized to buy from five to eighteen million dollars’ worth of property, and subject the city of Detroit to the liability growing out of the operation of upwards of 100 miles of electric street railways, without giving the citizens and taxpayers an opportunity to say whether they wanted to purchase and operate such a business or not, nor is it necessary to discuss the other questions raised by counsel; for, if we are right in our conclusion that the law is unconstitutional, this disposes of the case.
We were asked by one of the counsel, in his oral argument, whatever our decision in this case might be, to decide the question whether the city, under any circumstances, may build or buy lines of street railway in its streets, all lying within the city limits, and lease them upon such terms as the city authorities shall deem to be for the best interests of the citizens. It is not necessary to pass upon the question just stated in order to dispose of this case. The law under consideration involves much more than the simple question of municipal ownership of the tracks within the corporate limits, and, in the decision of the case before us, we do not deem it wise to express any opinion upon any question other than the one before us. It will be soon enough to pass upon the other question when it is necessarily before the court, and when the court can have the benefit of the conditions and surroundings then existing.
We think the law unconstitutional, that there is no such office as tbe “Detroit Street-Railway Commission,” and that respondents have no title thereto, and that judgment of ouster should be entered.
The other Justices concurred. | [
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] |
Per Curiam.
The village of Litchfield was organized under the general incorporation act for villages. Act No. 3, Pub. Acts 1895. Under paragraph 7, § 1, chap. 7, power is conferred upon villages to, by ordinance, suppress saloons for the sale of spirituous and intoxicating liquors. At a regular meeting of the common council on October 5, 1896, the common council, by resolution, fixed the saloon bonds at $6,000, with three sureties. At a regular meeting held May 3, 1897, by resolution the bonds were reduced to $3,000, with two sureties. May 2, 1898, one liquor bond was presented and approved in the sum of $3,000. No resolution was passed that year nor since fixing the amount of the bond. Relator presented her bond in the sum of $3,000, with two sureties. The common council refused to accept the bond, and relator applied to the circuit court for the writ of mandamus to compel its approval. The circuit court granted the order, and respondent removed the matter to this court by the writ of certiorari.
A resolution of the common council stands until modified or repealed. A common council is a continuing body. The resolution of 1897, fixing the amount of such bonds at $3,000, remained in force until further action of the council was taken. None having been taken, it follows that the bond was in compliance with the law, provided the sureties were sufficient.
It is 'contended that the council may suppress saloons by refusing to accept the bond. We cannot concur in this view. The law contemplates some formal action upon the subject by ordinance, and not otherwise.
The action of the council appears to have been taken in good faith, and they have not passed upon the sufficiency of the sureties. We think the order of the circuit court, therefore, too broad. It will be modified so as to compel the common council to meet, examine into the sufficiency of the sureties, and approve the bond if found sufficient. | [
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] |
Long, J.
.This action was brought to recover damages for personal injuries sustained by plaintiff, who was thrown from her bicycle, on the evening of November 26, 1897, in consequence of the defective condition of the asphalt pavement on Canal street, in defendant city. That street was paved with asphalt covering, from 2 to 3 inches in thickness. The break in the pavement into which the plaintiff rode with her wheel was about 21-feet by 2 feet in extent, and from 2 to 2-J- inches deep. The asphalt had been worn away down to the concrete by the passage of teams over it. It is one of the most used streets in the city, hundreds of teams passing over it daily. ' The asphalt was worn in several other places, as well. These holes or broken places had existed for 60 days or more previous to the accident, so that the real controversy arises over the question whether the city was bound, under the statute, to keep its streets in a reasonably safe condition and fit for vehicles of that character to pass over them. It appears, without contradiction, that the street was in reasonably safe and fit condition for ordinary vehicles, such as wagons and carriages.
It has been held in this State, and in others, that a bicycle is a vehicle; but the question has never before been presented in this State whether, under this statute, the streets must be kept in a reasonably safe condition for this class of vehicles. ' When the amendment to the statute was passed in 1887 ( 3 How. Stat. § 1446c et seq.), this class of vehicles was in use only to a limited extent, and we do not think the legislature had this class of vehicles in mind, or intended to place the burden upon townships and cities to keep their roads and streets in a safe condition for them. Reasonable care in the construction and maintenance of highways for ordinary vehicles, such as wagons and carriages, is the measure of duty resting upon municipalities. In Sutphen v. Town of North Hempstead, 80 Hun, 409, the court said:
“It is apparent that a bicycle rider upon an ordinary country road is exposed to greater dangers than a person riding in a wagon, and the great increase in the number of persons using these vehicles has created a demand for better and safer roads; but, under the present highway laws, a road in a condition which is reasonably safe for general and ordinary travel is all that the commissioners of highways are bound to maintain. ”
Our statute makes no distinction between country roads and streets in cities and villages. If a highway in the country is not kept in a reasonably safe and fit condition for public travel, the liability for injuries attaches, and the same statute imposes upon cities and villages a like burden. The testimony in the present case is conclusive that, while hundreds of ordinary vehicles passed and re-passed over this street daily, no accidents or injuries occurred. There is no question but that the street was reasonably safe and fit for that kind of travel; and that is all the statute requires. If the statute ought to be extended to cover vehicles of the bicycle class, that question must be addressed to the legislature, and not to the courts.
The court below should have directed the verdict in favor of the defendant; therefore it is unnecessary to discuss the various assignments of error set out by counsel for plaintiff. The jury found in favor of the defendant. - That judgment must be affirmed.
Grant, C. J., Montgomery and Moore, . JJ.', concurred. Hooker, J., did not sit. | [
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Long, J.
The land in controversy, situated in the township of Bessemer, county of Gogebic, was assessed in the year 1892 for certain state, county, township, highway, school, “old highway,” and other taxes; and, while the roll was still in the hands of the township treasurer, the taxes were all paid, except one-half of the highway tax, and the so-called ‘ ‘ old highway ” tax. Subsequently the lands were returned delinquent for this unpaid one-half of the highway and the old highway tax. In June, 1894, the owners of land in this township, who had all paid in'the same way all taxes but these two, joined in a bill against the township, asking that the one-half of this highway tax and the old highway tax for the year 1892 be decreed to be illegal and void, and the lands freed from the lien of these taxes, and the cloud created thereby removed. The appearance of the township was entered by solicitor, a copy of the bill served upon him, and, no answer being made by the township, its default was taken, and a decree rendered on August 16, 1894, as prayed for in the bill. The auditor general was not made a party to this proceeding. It appears that these lands were returned delinquent for these taxes of 1892, and in July, 1894, the auditor general filed his petition for the sale of the lands. The order on the petition fixed the time for hearing as of August '27th, which was 11 days after the decree of the circuit court declaring the taxes illegal and void. No-appeal had been taken from that decree. The decree on the auditor general’s petition was rendered September 28, 1894. In December, ,1894, the land in controversy was sold under the auditor general’s proceedings, ’ bid in by the State, and on March 22, 1897, purchased by, and deeded to, defendant Moore by the auditor general. It was found by the court below that the petitioners here, who are the owners of the land in controversy, had no knowledge of the sale of the lands in the proceedings by the auditor general, or that defendant Moore claimed any title to them, until May 17, 1897, when an agent of petitioners accidentally noticed the publication of an order on a bill, filed by defendant Moore to quiet title. On ascertaining this, the petitioners presented a certified copy of the decree of the circuit court of August 16, 1894, to the auditor general, who on July 20, 1897, issued a certificate of error canceling the tax deed to the lands held by defendant Moore. Petitioners then filed this petition. Defendant Moore appeared, proofs were taken, and the court below made a decree setting aside the tax deed, and vacating the decree entered on the auditor general’s petition. Defendant Moore appeals.
While many questions are raised and discussed by the defendant, but two or three need -be noticed. The petitioners had prosecuted their bill to have these taxes declared void to a decree in the circuit court in chancery in Gogebic county. The defendant township appeared in that case, and no appeal was taken. The petitioners rested upon their supposed rights under that decree. The defendant contends that the proceedings under that decree and the decree itself are void on their face. The proceedings were had before a court of competent jurisdiction, and that court, by its decree, held that the taxes were void. The owners of the land rested upon that. No actual notice was given to them of the filing of the auditor general’s petition, or of any of the proceedings taken thereunder. It is true that the usual notice was published upon the filing of the auditor general’s petition, but the'owners of the land, having taken the proceedings to set the taxes aside, had no reason to anticipate that any such proceedings would be taken, as the decree was not appealed from. They had paid all the taxes they considered valid, and had a right to suppose that the whole controversy in reference to the taxes was ended. The case falls in principle within the cases oh Hand v. Auditor General, 112 Mich. 597; Hough v. Auditor General, 116 Mich. 663; Carpenter v. Jones, 117 Mich. 91; Kneeland v. Wood, Id. 174. In those cases it appeared that the parties had made every proper effort to pay the taxes assessed, and were misled by the officers having the matter in charge. In the present case, the parties had taken the steps which the law points out to rid themselves of an invalid tax, and free the land from the incumbrance thereof. They rested upon what they thought to be a valid and proper decree. The township had notice of this proceeding, and appeared therein. These were township taxes solely, and no other governmental subdivision had any interest in them. The state and county taxes had been paid for that year. We shall, however, refer briefly to the contentions of defendant.
It is claimed that, in the bill against the township, there was a misjoinder of complainants. The complainants had each paid all taxes on their lands except one-half of the highway tax and the old highway tax. They each had the same interest in the proceedings. They were each similarly affected by what they claimed to be the illegal tax. The tax was assessed at the same time on each parcel, and under the same statute, by the same assessing officer. It is settled in this State, under such circumstances, that the parties may join as complainants in a bill to set aside illegal taxes. Scofield v. City of Lansing, 17 Mich. 437; Zabel v. Harshman, 68 Mich. 270; Turner v. Hart, 71 Mich. 139.
It is also contended that the auditor general was a necessary party to the proceedings against the township to set aside these taxes. This contention cannot be sustained. The township taxes, as soon as assessed, became a debt due to the township, and the county treasurer, in making the sale, bid in the lands “ in the name of the State, for the State, county, and township, in proportion to the taxes, interest, and charges due each.”
These last propositions, however, have no significance in the present case. We are satisfied to rest our ruling in affirming the decree below upon the proposition that the petitioners had the right, under the circumstances, to rely upon the decree setting aside the taxes.
The decree of the court below must be affirmed, with costs to the complainants.
The other Justices concurred. | [
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] |
Hooker, C. J.
Eelator asks a mandamus to compel the probate judge to vacate an order admitting to probate the will of relator’s father, Eobert Trombley. This order was made in 1872, by respondent’s predecessor, and relator claims to have been ignorant of the proceedings until recently, and that, the will is fraudulent; that a petition was filed by herself and sisters with the probate court, alleging these facts, and that the probate court did not obtain jurisdiction in the original proceedings, concluding with a prayer that the order admitting the will to probate be vacated, and petitioners permitted to contest the will. After a full hearing the probate court denied the relief prayed.
Belator has mistaken her remedy. If not satisfied, she should have appealed from the order of the probate court. How. Stat. § 6779.
A mandamus will not be granted where another adequate legal remedy exists. People v. Circuit Judges, 1 Doug. 302; People v. Judge, 1 Mich. 359; People v. Circuit Judge, 19 Id. 296; Wiley v. Circuit Judge, 29 Id. 487.
A further reason for denying the relief prayed is the want of power in the probate court to vacate its decree admitting the will in question to probate. In Grady v. Hughes, 64 Mich. 545, it is said that — •
“The probate court derives none of its jurisdiction or power from the common law, but must find the warrant for all of its doings in the statute. Its jurisdiction, powers, and duties are prescribed by law.- Article 6, § 13, Const.; How. Stat. chap. 348. * * * We find no authority given to the probate court to review such decree ■or to set the same aside.”
We do not decide that the jurisdiction of equity is not broad enough to furnish relief in such a case as this is •claimed to be.
The writ will be denied, with costs.
The other Justices concurred. | [
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] |
Long, J.
This is an1- action on a promissory note. Defendant, under her plea of the general issue, gave notice that at the time of the giving of the note, and as a part of the same transaction, defendants gave to the plaintiff a mortgage upon a schooner for the same amount as the note, the mortgage being given to secure it; that, after the giving of the note and mortgage, the defendants executed and delivered a bill of sale of the schooner to one Darius N. Avery; that it was understood and agreed between the defendants, the said Avery, and the plaintiff, who was then the owner’and holder of the note as well as the mortgage, that the bill of sale to Avery should be subject to the mortgage, and, as a part of the consideration of said bill of sale, that said Avery should pay the note and mortgage, and defendants should be released and discharged from further liability thereon, the said Avery being substituted in the place of said defendants, and becoming in law thereby a new party in plabe.of defendants, as the debtor of the plaintiff.
The plaintiff, on the trial, offered the note in evidence, and rested. The note was dated September 7, 1885, was given for $260, with interest at 8 per cent, per annum, due two years from date, and was signed by both defendants. The defendant, to maintain her defense, gave testimony to show, substantially, that plaintiff and Alexander Cocharen bought the schooner in 1884, and were equal owners. They gave back a mortgage for $1,000. The plaintiff operated a feed store on the land of Ellen G. Cocharen, under the name of J. J. Mulgrew & Co., and Alexander Cocharen was the company of that firm. Mulgrew sold his interest in the schooner and the feed store for $260, and took the note in suit, together with a mortgage on the schooner to secure the payment of the note. Alexander Cocharen took the vessel as master, and in October, 1886, was arrested for obtaining a cargo under false pretenses. At that time there was about $200 remaining unpaid on the $1,000 mortgage given by plaintiff and Alexander Cocharen on the purchase price of the schooner. The plaintiff’s note and mortgage were also unpaid, and there were, some claims against the schooner for supplies. The defendants thereupon gave to Darius N. Avery a mortgage on the vessel for $558.21. On the 25th of October, 1886, three days after giving Avery the mortgage, there was a talk between the defendant, her husband, and Avery, at which the plaintiff was not present, in which Avery verbally promised to pay off all the claims against the schooner, particularly the plaintiff’s claim, if she and her husband would, give him a bill of sale of the schooner. The vessel was estimated to be worth $1,400, and it was agreed that, after paying all claims against her, Avery would turn over the balance of the moneys, over and above that amount, to the defendants. Defendant and her husband gave Avery a bill of sale. Mr. Avery and the plaintiff met the defendant a few days thereafter at the store. Defendant claims to have relied upon Avery’s promise to pay the plaintiff’s claim, though the promise was not in writing.
Defendant was asked upon the trial:
“ What was said there at that time pertaining to this $260 matter that he has brought suit for?”
This was objected to, on the ground that what might have been said between the parties three or four days after the bill of sale was given to Avery was incompetent, as it was not a part of the consideration moving from one party to the other. The objection was overruled, and the witness answered:
“ Mr. Cocharen told Mr. Mulgrew that this was the man that was to pay himr for he (Avery) agreed when we sold out the schooner that he was to pay all debts and demands there was against it.”
The defendant was further asked:
“Q. What did he say at that time, — what did Mr. Mulgrew say at that time, — as to whether he would take Mr. Avery for the payment of this $260, instead of you and your husband?
“A. Well, he said he accepted Mr. Avery for his pay.
“Q. And what did he say as to whether he would not look tp yon and your husband after that?
“A. Well, he never looked to us; he never named it afterwards, until after the fall that he got married.”
The witness further testified that Mr. Avery said he would pay the note.
This claim of the defendant that a novation had taken place was denied by the plaintiff.
The court directed the jury as follows:
"If you find, by a fair preponderance of the evidence in this case, that it was agreed by and between Darius N. Avery, Alexander Cocharen, Ellen G-. Cocharen, and John J. Mulgrew that, as a part of the consideration for said transfer, said Avery agreed to pay the note sued on in-this ease, and that Mulgrew agreed to accept said Avery as Ms debtor in place of said Cocbaren and Ms wife, and to release Cocbaren and bis wife from said debt, then I charge you, as a matter of law, that such agreement operated as a release to said Cocharen and wife of and from all further liability on said note, and your verdict should be for the defendant.”
The only question presented is whether there was any evidence from which the jury would be justified in finding that a novation had taken place. The testimony has been set out substantially as given, and we think, from the claim made by the defendant, that the jury might well say that an arrangement was made between the parties by which the Cocharens were to be released, and Avery assumed the payment of the note, and that the plaintiff agreed to accept Avery as his debtor in place of the Oocharens. It is true that the plaintiff denies that any such arrangement was made, but the only question which concerns us is whether there was any evidence warranting the submission of that question to the jury. We think there was, and therefore there was no error in the charge.
Judgment affirmed, with costs.
Hooker, C. J., McGrath and Grant, JJ., concurred. Montgomery, J., did not sit. | [
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] |
Grant, J.
This case was tried before the court without a jury. The findings of fact are as follows:
1. Plaintiff and one David B. Swart were partners in trade, and owners, as such, of a stock of groceries, including the property mentioned in the writ of replevin issued in this cause; the plaintiff being a married woman, and her husband acting as her authorized agent in relation to the business.
2. On the 17th day of August, 1885, the said firm was indebted, for goods purchased, to two firms, and to secure said indebtedness the plaintiff, in the name of the firm, had delivered to said creditors two chattel mortgages upon the goods of the firm, including the articles in controversy, Avhich mortgages were due and outstanding on said 17th day of August; foreclosure of one or both of them having been begun.
3. The partners were mutually distrustful, and David B. Swart, to protect his interest, and to prevent the sale upon the mortgages mentioned, borroAved the sum of $400 from his brother, Tunis W. Swart, of Mt. Pleasant, giving him the firm's mortgage upon the goods for that sum, payable on demand. This loan was made, upon the representation that the money was to be used for the payment of the debts of 'the firm, including the two mortgages, which mortgages Avere supposed to amount to the sum of $360. The money, Avhen received, was applied in payment of the mortgages, to the amount of $361.64, and the balance, of $38.36, was retained by David B. SAvart.
4. The value of the property of the firm at this time was in the neighborhood of $500, and was all coA’éred by each of the mortgages mentioned. .
5. On the 18th day of August, Tunis W. SAvart commenced proceedings to foreclose his mortgage, by placing-it in the hands of the defendant for that purpose, in furtherance of which the defendant at once took possession of the property, and advertised it for sale, in accordance Avith its terms.
6. November 16, 1885, the plaintiff sued out a writ of replevin, under which the property covered by said mortgage was taken from the possession of the defendant, and delivered to the plaintiff.
7. At the time of the replevin the property was Avorth the sum of $450, having deteriorated in value $50 while in the possession of the defendant.
8. Demand of payment of the amount secured by mortgage Avas duly made before steps were taken to foreclose the mortgage.
9. At no time during the time that the partners carried on business did the stock greatly, if any, exceed the amount of property exempt to the two partners under the eighth subdivision of the exemption laAV.
10. Defendant had a special interest in the property by reason of his mortgage of $400, amounting at this date to $530.
11. Plaintiff on August 20 filed a bill in chancery to wind up the affairs of the partnership, making defendant and Tunis W. Swart defendants, and enjoining the sale iinder the mortgage, which she alleged to be fraudulent.. That suit is yet pending. A receiver was appointed, who never qualified, and on November 8 the preliminary injunction was dissolved.
No exceptions were taken to the findings either of fact or of law. Assignments of error based thereon will not now be considered. The only question for determination, therefore, is, do the findings of fact support the judgment? This has been so often held by this Court that a citation of the cases is unnecessary.
The judgment is correct, for the following reasons:
1. One partner possesses the right to execute a chattel mortgage in the firm name for the purpose of securing or paying partnership debts. Harrison v. Sterry, 5 Cranch, 289; Bohler v. Tappan, 1 Fed. Rep. 469; Gates v. Bennett, 33 Ark. 475; Nelson v. Wheelock, 46 Ill. 25; Patch v. Wheatland, 8 Allen, 102; Walker v. White, 60 Mich. 427; Jones, Chat. Mortg. § 46.
2. It is settled in this State that such mortgage is valid as against the exemptions provided for by How. Stat. § 7686, though some of the partners may not be aware of its execution. Harvey v. Ford, 83 Mich. 506.
Judgment affirmed.
Long, McGrath, and Montgomery, JJ., concurred. Hooker, C. J., did not sit. | [
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] |
McGrath, J.
Defendants were acting as • plaintiff’s agents for the sale of clover hullers at Grand Rapids, under a written agreement dated December 29, 1888, by the terms of which defendants agreed—
To receive, and take good care, by storing under shelter, of all machines .sent to them as such agents; and, should, any machine sent to them remain unsold at the end of the season, to store the same under cover until the next season, or return the same to plaintiff.
“To take all orders on blanks furnished by the party of the first part, and to have the same properly filled and signed, showing property statement of purchaser, and to use all due diligence in ascertaining the correctness of such property statements, and to forward orders without delay for acceptance or rejection.
“ To receive the purchase price of all machines sold as aforesaid, whether in money or notes, and to forward the same to the said party of the first part promptly, and at the time of settlement of each sale.
“That all moneys and notes and other securities taken for said clover separators (or parts thereof) are to be received by said parties of the second part in a fiduciary capacity, and not otherwise, and so accounted for; and said moneys, notes, and securities are in no case to be used or appropriated by said parties oí the second part, but are to belong (as soon as received by said parties of tha second part; exclusively to said party of the first part, and to be promptly remitted to it as. each settlement is made. * * * ******-
“To invariably have full settlement with the purchaser before the delivery of each machine, or any part thereof.
“ To be personally responsible for any neglect of the faithful performance of any of the requirements embraced in this agreement.
“To sell only at such prices and on such terms as. said party of the first part shall direct, and hereby guarantee payment for machines sold, unless said parties of the second part shall, before sale, send an order to the-said party of the first part, with property statement of the jDurchasers thereon, and such order shall be accepted by it. Such order shall be in the form of a proposal, and may be accepted or rejected by said party of the first part.”
On October 3, 1889, defendants sent a telegram to plaintiff at South Bend, Ind., as follows:
“Will you ship one huller, two January’s time, good paper, our indorsement? Answer quick when can ship.”
On the same day plaintiff replied:
“ Will ship huller on that time, and can ship next. Monday. Instruct us.”
Defendants on the same date gave the following instructions:
“Ship the huller Monday next, as stated.”
The huller was shipped on October 7, and on that date plaintiff sent to defendants the following bill:
“ Clover-Huller Department. ) “South Bend, Ind., Oct. 7, 1889. y
“Brown & Sehler, Grand Bapids, Mich.,
“In commission account with Birdsell Manufacturing Co.
“ Order No. 2,969. Machine No. 13,999.
“ One No. 1 clover huller, trucks, and stacker, 9J pulley, $470.
“Commission 20 per cent., payable at time and in same proportion as we receive our money, per contract.
“ For terms -.
“If sold on time, sale to be made subject to our approval, per contract.
“Transferred from-.” '
The huller was delivered to the person for whom it was obtained, one Van Amburg. The notes were not obtained from the purchaser. On November 14, 1889, defendants wrote plaintiff as follows:
“ Gentlemen:
“The last huller shipped us does not seem to work right, and we are unable to get settlement for it. We are no experts on huller business, but the party we sold to had worn out one of your hullers before, and said that he had no trouble whatever in cleaning the seed; but with this he cannot get the seed through the sieve; keeps a.man at the sieve all the time, and then it will run over so that they have to stop and clean it out. If the man is not there all the time, it will load up and run over. Think will have to send a man who understands his business, to see what can be done with it, before we can get settlement. Any time about the 20th of the month will be all right for him to come, as the mán is sick now, and would rather not start under a week. Let us hear from you by return mail what day a man can come, so that we can write him to be ready.”
On November 19, 1889, plaintiff replied as follows:
“ Gentlemen:
“ You wrote us the other ‘day that you needed an expert to look after one of your hullers. You also spoke about the party being sick who wanted help, and that he will not likely be able to work before the 20th. The weather being so bad, and the party sick, it will’ be best for you to telegraph us when everything is ready for starting the machine.
“You say he has trouble about getting the seed through the sieve. Do you mean the recleaner or the wire shoe? It is quite likely that if he would lower the tail board as low as possible behind, and put on plenty of wind, he will have no trouble whatever about the shoe clogging up. Tell '.him he need not be uneasy about blowing over seed. .If 'the trouble is with the recleaner, perhaps the screens need ■washing off. Sometimes they get dirty or gummy, and the holes thereby become too small for letting the seed ‘through properly. If the cylinder concaves are properly ■adjusted, and the tail board kept down behind, and plenty ■of wind let on,, we have no doubt but that everything will rim all right. It is quite likely that some of his belts are too loose. We inclose cut with oue of the belts marked in red ink. If he will keep this belt good and tight, and the fan belt also tight, we are quite sure he will need no expert.”
On November 22, 1889, defendants wrote again to plaintiff as follows:
“ Gentlemen:
“Answering yours of Nov. 19, would say that it will be necessary to send a man to see to this huller, as -the customer has got balky. You can send a man at any time within a week if it stops raining, and we will see then what can be done.”
After this letter was written, and on Nov. 30, one Alt-land, a representative from the home office, visited Grand Eapids, saw defendants, and also Yan Amburg. At that conversation Yan Amburg told Altland that he would not settle for the machine until it was made to give satisfaction. Altland says:
“I proposed to Yan Amburg that we could try the machine, and he agreed to it, and set the 27th day of December for us to be here, to have an expert to show how the machine would work.”
On December 7, 1889, plaintiff wrote defendants as follows:
“Gentlemen:
“ Our Mr. E. "W. Altland reports that Mr. Yan Amburg does not expect to start up his huller again until between Christmas and New Year’s. If convenient, we wish you would notify us either by letter or wire about three days bef ore he desires to start the machine, giving the exact day, if possible, and we will have some one there to see that it operates properly. From what Mr. Altland says we are satisfied that the trouble lies exactly where we wrote you in our last letter. All that will be necessary in this case will be to lower the concave, or take out all of the teeth except one row, if the clover is dry enough, and then lower the tail board at the rear end of the machine, and turn on plenty of wind. If that is done, the shoe will be kept clean, and tbe huller will work to everybody’s entire satisfaction.”
To this letter defendants rejilied, December 8, as follows:
“Gentlemen: The arrangement your Mr. Altland made with Mr. Van Amburg is that they were to start the huller on Friday between Christmas and New Year’s, and that you were to have a man there at that' date.”
On December 14, 1889, defendants again wrote to plaintiff as follows:
“ Gentlemen:
“Mr. Van Amburg, who has the huller that is unsettled for, called yesterday, to let us know that since he had been away from home there had another huller come in, and done all of the work in his neighborhood, including the job that the machine was to have been tried on. He says that there is no use in talking, if he should keep the huller, he could never get work to do with it in that country again. He makes a proposition to deliver the huller back here, lose his freight, and pay $50 for what he has damaged it. This, he says, is all that he will or can do. He is perfectly responsible for a dozen liullers, and we have had a great amount of deal with him, and always found him perfectly straight; but he is very headstrong and set in his way, and when he gets an idea that a thing is not right it is impossible to change it. If you wish to accept his proposition, you may have the $50, and carry the huller in stock here until another year. He will clean the huller up; and, as it has never hulled but a few days, thinks it is not damaged. We should judge that this would be the best way out of the trouble, but, "if you have any other idea in the matter, perhaps you had better send Mr. Altland back here to talk to him, as we have done all we possibly can to get the settlement. Please let us hear from you by return mail, so that we can close the matter up one way or the other.”
On December 16, 1889, plaintiff replied, refusing to accept the proposition, and stating that—
“The facts of the case are that the machine was shipped to you, for we did not know whom, on October 7 last, which we did on a telegraph order from you, in which you stated that you would indorse the paper. We heard nothing further in regard to this machine until November 14, under which date you wrote us that the machine did not seem to work as it should, and that you were unable to get settlement for same. You also stated that the trouble seemed to be in the mill. When Mr. Altland called upon you recently he reported fully in regard to this matter, and said that there was not the least doubt in the world but what the machine was all right. He also further stated that Mr. Yan Amburg noAV expects to quit the threshing business on account of his eyes, and says, were it not for this, he is of the opinion that Mr. Van Amburg would not take the position he has in the matter. * * * To sum up this matter as above stated: The machine was sent without any order, and on your guaranty, and we shall look to you for the payment for the huller, on your guaranty on the paper taken for it. We regret very much that this matter has taken the shape that it has, and are inclined to the opinion that, had you taken Mr. Yan Amburg’s order for the machine, or settled for it when he took it, this action on his part would have been avoided.”
To this letter defendants replied as follows:
“Gentlemen:
“ Yours of the 16th is at hand, and contents noted, and in answer to same will say that ours of the 14th was not a request, as you seem to take it, but was merely a statement of what Mr. Yan Amburg’s proposition was, and what our idea of the matter was. * * * As for Mr. Yan Amburg’s quitting the threshing business, will say that he hasn’t the least idea of doing so. As we wrote you before, Mr. Yan Amburg intended to have the machine tried on the Friday between Christmas and New Years. He was here in the city on jury at the time this agreement was made, and, when he went home at the end of the week, found that another machine had got in and done the work, so that there is no job left to try it on.
“As regards our ordering the machine, will say that we don’t go back on ordering the machine, nor on making good our order, but, until you make the machine work satisfactorily or to fulfill your guaranty, you will not be able to get pay for it. * * * If you wish to have anything done with Mr. Yan Amburg you can send one of your representatives to interview him,”
In March, 1890, Yan Amburg, between two days, took the huller back to Grand Rapids, and left it in front of defendants’ place of business. After it had remained there for some time, defendants, to protect it, placed it under cover. After this, and in April, plaintiff’s agent, Altland, again visited Grand Rapids, and, with the knowledge of the disposition made of the huller, called upon Yan Amburg in person and alone, and demanded a settlement for the huller, but Van Amburg refused to pay. On November 13, 1890, defendants wrote to plaintiff as follows:
“ Gentlemen:
“There still remains in stock here, belonging to you, the No. 1 huller formerly ordered for Mr. - Yan Amburg. We notified your Mr. Altland when here last winter that Mr. Yan Amburg had returned the huller, and asked to haVe an order for shipment of the huller. We have, according to contract, stored the machine under cover up to the present time, and have never received an order from you for the return of the machine. We now consider that we have stored the machine longer than our contract requires, and we now need the store room. The machine is here, subject to your order, and, according to terms of the contract, we trust you will give us shipping orders for this at once, as we do, not think that we should be called upon to store it longer.”
No reply was made to this letter, and in August, 1891, defendants shipjied the huller back to plaintiff, but plaintiff refused to receive it, and what became of it does not appear. This suit was then brought.
The court instructed the jury as follows:
1. “The evidence in. the case does not show that there was a sale from the plaintiff to the defendants of this clover huller; but it does show, under the construction which I feel bound to place on the agreement, namely, the telegrams in connection with the contract of agency, that these defendants, in sending forward the telegram that was first read, acted as the agents of the plaintiff in this suit. ******** * *
2. “In this contract of agency there is a provision that the party of the first part — that is, the plaintiff in this suit — agreed to furnish to the said parties of the second part — that is, the defendants in this suit — such number of clover separators manufactured by the said party of the first part as the said parties of the second part may be able to sell as its agents prior to January 1, 1890; the said party of the first part reserving unto itself the right, in case it shall not be able to fill all orders sent it by the parties of the second part, to restrict said parties of the second part to such number of machines as it may be able to supply, even though the terms and conditions of orders received at the office may be accepted, and acknowledged, and shipment promised. This provision in the contract, as well as the fact that resort is had to the mode of business between the parties to construe that phrase of the first telegram to which I have called your attention, among other things, has led me to the conclusion to interpret and construe these telegrams together with this original contract, and to hold that whatever contract was made in reference to this huller was by the defendants, as agents, with the plaintiff, as their principal; in other words, that it was on their part done, and on the part of the plaintiff understood as .done, with reference to their duties as agents, and under this contract of agency.
3. “If there is any recovery by or on the part of the plaintiff in this suit, it must be under the fourth count of the. declaration; and the fourth count charges these defendants, as agents, under the agreement that was put in evidence of the contract of agency. It sets forth the agreement; it sets forth that contract of agency; it sets forth as a part of the agreement that the plaintiff at the special instance and request of the defendants — It sets forth that on, to wit, the 3d day of October, 1889,—
“ ‘ In consideration that the said plaintiff at the special instance and request of said defendants would deliver to them, the said defendants, on, to wit, the 7th day of October, 1889, at Grand Rapids, in the State of Michigan, aforesaid,. one of plaintiff’s number one clover hullers, on the terms that defendants should accept said huller at a certain price, to wit, at the price of $470, and would have full settlement with the purchaser thereof for the same before the delivery thereof to him, and take in payment therefor the two promissory notes of the purchaser thereof, each for one-half of said amount, and one of said notes to become due on January 1, 1890, and the other of said notes to become due on January 1, 1891, and both to be indorsed by defendants and delivered to plaintiff, to wit, within 60 day from October 3, 1889; and the said defendants then and there, on the day and year last aforesaid, undertook and promised the plaintiff to take, sell, settle, and pay for said clover huller accordingly.’
“ That is the agreement set forth in this count of the declaration substantially; and then it is averred that, in reliance upon that agreement and undertaking on the part of the defendants, the plaintiff did, on the 7th day of October, deliver to the defendants said clover huller, on the terms and conditions aforesaid, and that the defendants sold and delivered it to William Van Amburg. Now follows the allegation in the declaration as to the breach by the defendants of the agreement set forth in the declaration. And the allegation of breaches of that agreement is .as follows:
‘“That the said defendants, not regarding their said promise and undertaking, but contriving and intending to deceive said plaintiff, did not have full settlement, or any settlement, with said purchaser, to wit, said William Van Amburg', for said huller, before the delivery thereof to him, but, on the contrary, delivered the same to him, said Van Amburg, without any settlement whatever; and said defendants did not, although often requested so to do, take from said purchaser, to wit, said Van Amburg, and deliver to plaintiff, the promissory notes above mentioned, or any notes whatever, for said clover huller, although more than 60 days have elapsed since the delivery of said huller to said defendants, and the sale by them to said Van Amburg; but without authority, and contrary to the express direction of said plaintiff, said defendants received back said huller from said Van Amburg, and attempted to reheve him, said Van Amburg, of all liability therefor.’
“Substantially the averments of the breaches of the agreement relied upon by the plaintiff are the ‘neglect to have a settlement before the delivery of the machine; the neglect to take notes for the payment from the purchaser, and indorse them and deliver them to the plaintiff within 60 days; and the averment that without authority, and contrary to the express directions of the plaintiff, the defendants received the huller back, and attempted to relieve Van Amburg of all liability therefor. Now, it is under this count of the declaration that the plaintiff must recover, if it recovers at all; and the claim on the part of the defendants is that this machine, being a clover huller manufactured by the plaintiff, and sold by the plaintiff, through its agents, the defendants, to Van Amburg, and delivered to Van Amburg, carried with it an implied warranty that it was reasonably fit for the purpose for which it was designed, and that it was not reasonably fit for that purpose; in other words, that it would not do the work that a clover huller is intended to do, — would not do it properly. And it is further claimed on the part of the defendants that they, as agents, did all that'-Vas required of them under this contract; and that, as soon as they ascertained that the machine had been tested, and that it was claimed by the purchaser, Van Amburg, that it would not perform the work, they notified the plaintiff, and gave the plaintiff an opportunity to send a man. forward here and put the machine in working order, and make it work if it would. Undoubtedly the plaintiff had a right to such a notice, and had a right to have the opportunity, when informed that the machine would not do the work, to attempt to put it in working order, to make it work. And there is a question for you to consider in this case whether or not it was afforded.sufficient opportunity — reasonable opportunity — so to do; and upon the part of the defendants, that Mr. Van Amburg gave timely notice to them, and that they gave the notice to the plaintiff. It is claimed on the part of the plaintiff that it was not afforded a reasonable opportunity; that, in fact, it was prevented.
4 “Now, it is a rule of law that, in the case of a sale of machinery, such as a clover huller, an implied warranty accompanies it that the machine is reasonably fit — suitable—to do the work for which it is designed and sold. The questions in this case, then, are whether or not this machine was reasonably fit to do the work for which it was intended; and the burden is upon the defendants, so far as that is material to the issue, to show that this huller was so imperfect that it could not reasonably be made to do the work for which it was intended.
5. “ The averments in the declaration in regard to the neglect -of the defendants to make settlement, and to take these notes, are, under the testimony, fully established. There was no settlement made. It is a conceded and undisputed fact in the case that there was no settlement, and also an undisputed fact in the case that no notes were taken. The huller came here, and it was delivered to Van Amburg on his oral order that he gave in the first instance. He tested it, and he claimed that it did not do the work. The plaintiff claims that it would do the work if it had an opportunity to give it a fair trial. Now, these averments, that I say are undisputed, do not render the defendants liable, unless their breach of them caused the damage that the plaintiff has sustained; unless the injury which the plaintiff claims resulted or flows from the breach of those averments, it would not follow that the defendants are liable. It would not make very much difference whether the settlements were had and notes taken or not if the purchaser were perfectly solvent, and payment could be enforced against him; and, if there was a sale in this case to Van Amburg that would bind Van Amburg, then the plaintiff in this case could enforce it against Van Amburg, and the mere omission to take the notes, or to have settlement at the time, would not be the cause of any damage.
6. “But it is claimed in this case on the part of the plaintiff that, if Van Amburg was liable at all, these defendants released him from the liability by receiving back (they being agents of the plaintiff) and by accepting this huller on Van Amburg’s claim that it did not fulfill the implied warranty which I have mentioned, and therefore on that it seeks to recover against these defendants for a breach of their duty on this contract as agents. Now, if you find from the testimony that this machine could be reasonably made to do the work for which it was intended, then Van Amburg would have no right to return it. That alone would not be sufficient to entitle the plaintiff to recover in this action, — merely finding that Van Amburg had no just reason to return it. Merely finding as a fact that the machine was capable of doing the work for which it was intended would not be sufficient to entitle the plaintiff to recover in this action, in my judgment; because, if he' had not any right to return it, it could easily enforce the sale' against him, and he would be the proper man to sue and recover from, in my judgment. But if, in addition to finding, if you should find it to be a fact, that the machine could be reasonably made to do the work for which it was intended, — if, in addition to that these defendants, without authority from the plaintiff, or contrary to its express directions, received the huller back from Van Amburg, and attempted to relieve Van Amburg of all liability therefor, and did relieve him by accepting it back, — then the' defendants are liable. And I think as a matter of law, if Van Amburg set up the claim that the machine did not fulfill the' implied warranty, that it was not capable of doing what it was intended to do; if on that claim he sought to return it, and did return it, to the defendants, and they accepted it, — then Van Amburg would be released. The plaintiff would be bound by that act of its agents. Van Amburg would be released; and, if these defendants did not have just cause for releasing him, they would render themselves liable. In other words, if the machine could be reasonably made to do its work by the plaintiff, and it had not omitted opportunity, when it was afforded it, to do it, then there would be no right to return it.
“The defendants claim, however, that they did everything that, they could; that they tried to get a settlement; that they acted as agents for their principal, and kept in mind the interest of their principal as well as their own; and they claim that the testimony shows that the huller would not do the work. If you find, then, these two propositions in favor of the plaintiff: If you find that the machine could be reasonably made to do the work, and that these defendants accepted it back when they ought not to have done it, had not any right to do it, and relieved Van Amburg from liability, then your verdict will be for the plaintiff; otherwise not. * * * * * * * * * *
■ 7. “ A Juror: I would like to ask a question, if not improper. Would it be considered, in law,- any acceptance of it back in the manner in which it was returned according to the evidence?
“ The Court: Well, in that regard, if you find from the evidence that the machine was returned by Van Amburg, and left in front of or near the premises of the defendants without their consent, without their knowledge; that they notified the plaintiff, of its return; that they took it under cover merely for the purpose of protecting it and sheltering it, under the provision in the contract which required them to shelter machines kept over, — it would not be an acceptance, that of itself; but, in determining whether or not there was an acceptance, you should consider all the testimony in the case, consider all the efforts that were made on the part of the defendants to make a collection for the machine. You may consider whether any communication or interview was had between them and Yan Amburg, or any understanding whatever between them, in that regard, and what they did in regard to notifying the plaintiff, and in regard to sending the machine back, and the time it was sent back, — all these facts and circumstances.”
The learned circuit judge was right in holding that whatever contract was made in reference to the huller was made by defendants as agents for plaintiff. That relation was at no time changed, nor was the relation between plaintiff and Van Amburg altered by the failure on the part of defendants to observe secret instructions. Van Amburg seems to have been financially responsible. This record contains no evidence of collusion between defendants and Van Amburg; nothing that is not consistent with entire good faith'on the part of the defendants. If plaintiff has suffered any damage, it would seem to be because it has not pursued Van Amburg. Defendants could not be held as indorsers upon a mere promise to indorse. If, however, the promise to indorse is made upon, a sufficient consideration, an action may be maintained for the breach. 2 Pars. Notes & B. 15; 1 Daniel, Neg. Inst. § 689a; Tied. Com. Paper, § 264; Fenn v. Harrison, 3 Term R. 757; Moxon v. Pulling, 4 Camp. 50; Bank v. Houston, 1 Har. (Del.) 225; French v. Turner, 15 Ind. 59. If defendants were liable under the agreement fixing the terms of the agency, they were liable as guarantors.
The claim against Van Amburg belonged to plaintiff,, and not to defendants. Even the authority to sue must have proceeded from plaintiff, and any suit brought against Van Amburg must have been brought in the name of plaintiff. Plaintiff’s remedy against defendants was for a breach of agreement. The measure of plaintiff’s damage, as against Yan Amburg, was the price of the machine, while, as against defendants, it was confined to the injury sustained by failure to follow instructions. The difficulty here grows out of the attempt to make the agents primarily liable, and to cast upon them the purchaser’s burden, in addition to that arising out of the agreement of agency. Defendants’ guaranty was not against litigation, nor against claims that the machines were not up to the implied warranty. The same defense could be made to an action on the notes. Defendants, on November lit, 1889, notified plaintiff that they had been unable to get a settlement with Yan Amburg. Plaintiff made no objection on that ground until a month afterwards, but in the mean time sent on its adjusting agent, who made a distinct arrangement with the purchaser to be present on December 27, and make a trial of the machine. If Van Amburg had no defense, or did not furnish an opportunity for the trial, or if he desired to avoid the contract, plaintiff was fully advised of all the facts. Defendants were not insurers against that situation. The remedy against Van Amburg was simple. Plaintiff alone could pursue it. Instead of pursuing Yan Amburg, plaintiff, on December 16, 1889, notified defendants that it would look to them for the value of the machine. Why? Not because defendants had not collected in advance the contract price, but simply because Yan Amburg had not given, and defendants had not required, the notes in advance. The huller was at this time in Yan Amburg’s possession, and remained in his possession some three months thereafter.
The matter rested until some time in March, 1890, when Yan Amburg, between two days, brought the machine to Grand Rapids, and left it exposed in front of defend ants’ premises. After some time, defendants, to protect the machine, put it under cover. It cannot be contended that this act on the part of defendants was a release cf Van Amburg. Plaintiff was notified of this move, and its representative afterwards saw Van Amburg, and demanded a settlement for the huller. Nothing, further was done until November 13, 1890, when the letter of that date was written to plaintiff. No reply was made, and in August, 1891, — one year and ten months after the sale, and nine months after the letter of November 13, 1890, was written, — defendants shipped the huller back to plaintiff. Plaintiff had made no move against Van Am-burg, nor against any one. Indeed, it had written to defendants, one year and nine months before this time, that it did not intend to look to Van Amburg, but to them, for the value of the machine. Defendants had written to plaintiff for instructions, and had waited nine months for a reply. Defendants were entitled to instructions, if plaintiff desired to save its rights as against Van Amburg, after having announced that it did not intend to pursue him, and plaintiff cannot now be heard to say that this act of defendants made them liable to it for the value of the machine.
The judgment is reversed, and a new trial granted.
The other Justices concurred. | [
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] |
Long, J.
Stephen W. Frank and Abigail Frank, both ■deceased, were husband and wife. On December 28, 1889, ■Stephen sold all his real estate, with the exception of a village lot, to William Stuart and Edwin Roberts, his wife joining in the deeds. To secure a portion of the purchase money, a note and a mortgage were taken from Roberts, ■and an assignment of a mortgage and the notes accompanying from Stuart. The notes and mortgage and assignment were all drawn payable to Stephen W. and Abigail Frank.. By the bill filed in this case it is claimed—
1. That the notes, mortgage, and assignment were not prepared in accordance with the intention and understanding of the parties, but that all that Stephen W. Frank intended was to have them so drawn that the income should go to His wife during her life in case she survived him, and that a mistake was made by the scrivener in making them payable to the parties jointly.
2. That, if no mistake was made, then the transaction, was intended as a testamentary disposition of the property, which was revoked by the last will and testament of Stephen, prepared and executed a few days after these conveyances.
The bill prays that the mortgage, notes, and assignment may be corrected in accordance with the intent of the parties, or that such instruments may be decreed to have-been made as a testamentary disposition of the property; and that Mr. Free, as administrator of the estate of Abigail Frank, be enjoined from taking possession of such securities from the complainant McLeod, as executrix of the will of Stephen W. Frank.
On the hearing below the court found that it was not intended by Stephen or understood by Abigail that she should take by such instruments more than a life interest in these securities, and that all she did take was a life., estate; and that such securities are now a part of the estate of Stephen, and in the possession of Mary McLeod as such executrix. By this decree defendant Free was-perpetually enjoined from taking any proceedings at law or otherwise to obtain possession of these securities, and the complainant McLeod was authorized and directed to collect, the same as a part of the assets of Stephen’s estate, and. dispose of the proceeds in accordance with the terms of his will. The defendants John W. Free, as administrator, and Henry 0. Frank, alone appeal. The bill was. taken as confessed by all the defendants except those now appealing.
The contention on the part of the complainants is that, the proofs abundantly sustain their position. It appears that on May 2, 1889, Stephen made a will. This was prior to the sale of the real estate. By the will he devised the-use of substantially all the real estate to his wife during, her natural life. Within a few days after he sold the real estate he directed a new will to be made. It revoked all former wills. At thq time of its execution he had a small amount of personal property, a village lot, which he willed to his daughter, Mrs. McLeod, and the securities above-described. He gave his wife a life interest in the village-lot, all his furniture, etc., and bequeathed to his executors, in trust the remainder of his estate, with power to sell and convey and convert into money, and the income of which was to be paid annually to his wife so long as she lived. His.son Henry C., upon the death of his mother, was to-be paid $100 in addition to the $2,000 or $3,000 he had already given him. Certain of his grandchildren^ living at-his decease were each to receive $100, and his son Emory S. the sum of $2,000; and the residue, after paying the funeral expenses, for tombstones, etc., he gave to his-daughter, Mrs. McLeod, and his son Emory S. He made-his wife and his daughter, Mrs. McLeod, executrices of his. will.
On February 12, 1890, Stephen W. Frank died. On the 27th of that month Mrs. Abigail Frank filed a-petition in the probate court for probate of the will, and, she refusing to act as executrix, the trust was assumed by the daughter, Mrs. McLeod. The son Henry receipted for all that was his due under the will. On June 27 following Abigail receipted for all she claimed of the personal estate under the will, which amounted to $315.10. After this time the widow received the income from these-securities, and, so far as appears by this record, never-made any claim that they or any part of them belonged to her. She died December 26, 1890. These securities were found among the papers of Stephen W., and passed into the hands of Mrs. McLeod, as executrix, and were treated as a part of the estate of Stephen until after the death of his widow. In 1891, Henry C. Frank filed a petition in the probate court for the appointment of an administrator of the estate of his mother, and Mr. Free was so appointed. Shortly thereafter it was claimed that these securities belonged to the estate of Abigail, upon the theory that she took the absolute title to them as survivor of herself and her husband, to whom they were jointly made, and this bill was thereupon filed. There is no controversy in the case except such as gi;ows out of these ■securities, and, so far as appears, no rights of creditors are concerned. The naked question is, did the wife take these securities at the death of her husband?
The husband was the owner of the land out of which the securities grew. After they were taken, they were treated as his individual property during his life-time. He dealt with them as such, and at his death disposed of them by his will. His wife, as it apjjears, always regarded them as his property during his' life-time, and after his ■death acquiesced in their being inventoried and treated .as a part of his estate, taking and receipting for her share and interest in the estate as given her by the will, and was apparently satisfied to have the securities treated as a part of her husband’s estate up to and at the time of her death. No one raised any question about it, until after her death, when the son Henry C., who was given only •$100 by his father’s will, made the claim that the securities belonged to his mother’s estate..
Counsel for defendants cites cases in his brief where it has been' held by this Court that a joint deed to husband and wife conveys the estate to them by entireties, and that the right of survivorship-exists in such cases, so that where one dies the other is vested with the whole estate. But this doctrine has not been applied to mortgage securities' with such strictness. In Wait v. Bovee, 35 Mich. 425, 429, it was said:
“ The drift of policy and opinion, as shown by legislation and judicial decisions, is strongly adverse to the doctrine of taking by mere right of survivorship, except in a few special cases; and it should not be applied except where the law in its favor is clear.”
In the above case the husband and wife were each possessed of considerable means, and made investments jointly, each supplying half of the funds. On the death of the husband the wife claimed the whole of the securities by right of survivorship. This right was denied, and it was said:
“Our own decisions relative to the rights of husband and wife in case of united holdings of real estate afford no argument here.”
It is evident from the testimony given by the complainants in the present case that the scrivener in drafting the mortgage, notes, and assignment did not make them in accordance with the understanding of the parties. It is also evident from the testimony of the witnesses that Abigail never.undei’stood that she had any more right in these securities than she had in the real estate out of which they grew. The will was made within four days after they were taken, and by the will she was given, a life interest in them. Equitably they were a part of the estate of the husband, and, being so treated by the parties themselves, and so understood by them, they must now be so treated, and reformed accordingly. In any event, only one-half could go to the estate of the wife under the rule in Wait v. Bovee, supra; but, under the facts shown, the whole securities must be treated as belonging to tbe estate of the husband.
The decree of the court below must be affirmed, with •costs.
Hooker, C. J., McGrath and Grant, JJ., concurred with Long, J.
Fisher v. Provin, 25 Mich. 347; Insurance Co. v. Resh, 40 Id. 241; Manwaring v. Powell, Id. 371; Jacobs v. Miller, 50 Id. 119; Vinton v. Beamer, 55 Id. 559; Dowling v. Salliotte, 83 Id. 131. | [
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] |
Montgomery, J.
The plaintiff corporation is engaged in the manufacture of lumber at East Tawas, Mich. On the 1st day of July, 1889, the defendant .company issued to the plaintiff a policy of insurance in the sum of 11,250. This policy was written by Frank L. Wands, the company’s agent at Bay City, and was sent to one James H. Schmeek, at East Tawas, for delivery. The policy expired on July 1, 1890, and no application for renewal was made by plaintiff. On the 5th of July, 1890, Mr. Wands prepared a new-policy, dated July 1, 1890, for one year, and forwarded it to Mr. Schmeck, in the expectation that it would be tendered to the plaintiff in renewal of the former policy. At the same time, another policy, of like amount, in another company, in which plaintiff had previously insured, was prepared, and forwarded in the same envelope. These policies were received by Schmeck on Sunday morning, the 6th of July. In the meantime, on Saturday, a fire had occurred, and the property covered by the policies had been consumed. The agent, Wands, learning of this on Sunday morning, telegraphed to Schmeck not to deliver the policies. Schmeck replied: “All right. Will return." On the same day, Smith, an agent of the plaintiff, was seen by Schmeck, and for the first time informed that the policies had been received, and was at the same time informed that they had been recalled. On Monday, July 7, Mr. Smith telegraphed to Schmeck, “Hold Wands’ $2,500 policy." By mistake of Sch mock’s clerk, as it would appear, the policies were not retained, but were returned to Wands. On the 11th they were demanded of Wands by Smith, and on the 12 th they wore again demanded, and the premium for the first time tendered.
The sole question for our determination is whether a contract of insurance was effected. It is ingeniously argued by the plaintiff’s counsel that the case is to be determined solely by reference to what took place in regard to the policy on secular days; and it is urged that as the policy was transmitted to Schmeck on a secular day, and as Smith signified his willingness to accept the policy on a secular day, this completed the contract; that Wands had no authority to recall the policy by telegram sent on Sunday.
We tliink this a novel application of the Sunday law. The act ol Wands in recalling the policy of insurance from’ Sclnneek was not the making of a contract, but was an effort simply to reclaim the property of the company. At that time no contract had been made, and none tendered. But, apart from this, if all that was communicated by Schmeck to the plaintiff is considered, it did not amount on his part to an offer of any contract of insurance to the plaintiff's agent. In the same conversation in which he was advised that he had received a policy, he was told that the policy had been recalled; and it does not appear that he was ever told, either by Wands or Schmeck, that the company would enter into contract relations with him. He could not compel the defendant to contract with him. As was said by the learned circuit judge:
“If Schmeck had authority to offer the policy to the plaintiff, he -was under no legal obligation to do so, but might lawfully refuse. To make such an offer was not a duty which he owed to either the plaintiff or the defendant. But supposing that such authority was conferred upon him, and he accepted it, yet, until he should actually make such an offer on a secular day, the plaintiff could acquire no rights, as against said defendant, or as against said Schmeck.”
The case does not call for extended discussion. The circuit judge was entirely right in his conclusion that the minds of the parties never mutually assented to the same proposition, and that no contract of insurance was made.
The judgment will be affirmed, with costs.
The other Justices concurred. | [
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] |
Hooker, C. J.
The defendant appeals -from a verdict and judgment rendered against him, in favor of a child of six years of age, who was bitten by a bear alleged to have been kept by defendant.
The following is a copy of the declaration:
“ Julian Narcisse Marquet, by his next friend, Narcisse Marquet, of the city of Menominee, in said county, plaintiff herein, by Sawyer & Waite, his attorneys, complains of Anton La Duke, defendant herein, of a plea of trespass on the case, filing this declaration, entering rule to plead, etc., as commencement of suit.
“For that whereas, the defendant above named, on October 24, 1891, and for a long time previous thereto, had occupied and controlled the Eagle Hotel, a public house, situated in the city of Menominee, Mich.; that there were public grounds surrounding said hotel, to which the public was invited, and through which it (the public) was freely permitted to pass; that said Eagle Hotel, on said 24th day of October, was occupied as a public house of entertainment, and the grounds about the same were open as a place of recreation to people in a public way, and were uninclosed, free access being given to said grounds from Ogden avenue, a public street, on the south, and from Dunlap avenue, another public street, upon the north; that upon the said 24th day of October, and for a long time, to wit, for one month or more, previous thereto, the defendant kept two black bears in the grounds, about said hotel, between it and Ogden avenue; that said bears were untamed, savage, and ferocious, which was well known to the defendant; that said bears were not confined or excluded from contact with people who passed through said grounds, save and except by a chain fastened to a collar about their necks, and connected to a post in the ground at the other end, said chain being 10 or 12 feet long; that there was a way or road leading from Ogden avenue to Dunlap avenue, aforesaid, through the grounds above mentioned, and near where the bears aforesaid were placed, along which way people— men, women, children — and vehicles were allowed and invited to pass by said defendant, in close proximity to said bears, so close that said bears could seize persons passing along thé sapie; that on said 24th day of October, aforesaid, the plaintiff herein, a boy between five and six years of age, in company with other children, was passing through the grounds contiguous to said Eagle Hotel, near where said bears were chained, when, without any negligence on the part of the plaintiff, one of said bears so kept and owned by defendant as aforesaid seized plaintiff in a ferocious manner, with its paws and teeth, and lacerated, bit, bruised, and scratched him, making large wounds in his head and body with its claws and teeth, and otherwise lacerated and injured the plaintiff, whereby his under jaw was broken in three places, his left arm broken in two places, and his shoulder smashed in a frightful manner, and other injuries then and there did to the plaintiff, whereby he has suffered great physical pain and anguish, having to undergo painful surgical operations by reason thereof, being confined to his bed in a critical condition for' a long time; that said injuries were caused solely on account of the negligence, carelessness, recklessness, and heedlessness of the defendant, who was well aware and had full knowledge and notice of the ferocious and savage nature and ugly disposition of said bears; that said defendant was negligent, heedless, reckle^, and careless in keeping said bears in a place so exposed, without providing a watch or guard over them, and without placing a fence or pen around them, and defendant was guilty of recklessness and negligence in keeping said bears in the open grounds, where people could come in contact with them; that it was heedless and reckless to keep said bears in such an exposed place, fastened with a chain as long as the one with which they were fastened on said day; that it was negligent in said defendant to keep said bears anywhere without having them securely guarded and protected, that children of tender years could not come in contact with them; that plaintiff suffered great damage by reason of the biting, scratching, wounding, bruising, breaking, and lacerating, as aforesaid, whereby he was caused great pain and suffering, and permanently disabled and crippled, to wit, to the amount of $10,000. Therefore the plaintiff demands judgment against the defendant for the sum of $10,000, together with the costs in and about this action, incurred and expended.”
Upon the argument it was contended that the proofs did not support the allegations of the declaration in the following particulars, viz.:
1. That the grounds where the child was bitten were public grounds, and open to the people in a public way.
2. That they were uninclosed.
3. That the driveway passed through them.
4. That the bears were so close to the driveway that they could seize persons upon it.
5. That the plaintiff was on the driveway without negligence when seized.
If it is to be held that the grounds must have been owned by the public to support the declaration, it must be admitted that the declaration was not supported by the proof. But the plain meaning of the declaration is that defendant occupied and controlled the premises where the bears were kept, and that he opened them to the general public. The statement that they were uninclosed is qualified by the explanation that free access was given from streets on the north and south. Proof that sustains this interpretation of the' declaration is not wanting in the record. There was also evidence tending to show that the-road or driveway passed through the grounds as alleged. There was evidence that the driveway had no gate at one-end, and that the driveway had been put there for the-convenience of people passing through who wanted to go-to the hotel, and that it was frequently used by persons,, especially by footmen, going from one street to the other.. We find no proof sustaining the allegation that the bears could seize people within the driveway, but it is imma-terial, and may be treated as surplusage, as the declaration does not allege that the child was in the driveway when seized by the bear, but states that he was passing through the grounds contiguous to the hotel when seized. There-being proof that the defendant was the keeper of the- bear, that the place was public, in the sense mentioned, and that the plaintiff was bitten at the place stated, there was enough to go to the jury,, and the trial court properly refused to direct a verdict for the defendant. This disposes of the 1st, 2d, 12th, and 13th assignments of error..
A point is raised over the admission of evidence tending to show how the grounds were occupied and used. We think, however, that this was admissible, as bearing upon the question of negligence. If defendant kept a bear-in a place that he knew to be frequented by the citizens: with his acquiescence, the degree of care required would be greater than it would be if the locality were more private. It also bore on the question of the alleged publicity of the place. This disposes of the 3d, 5th, and 6th assignments of error.
A number of witnesses testified to dealings with the. defendant in relation to supplies furnished for the hotel, and, while we may not be impressed with the justice of the finding of the jury upon the subject, we must recognize the fact that evidence tending to show that defendant ordered and paid for such supplies tended to show his pro prietorship. The 4th and 9th assignments apply to evidence of this kind.
W. Beindl, a witness for the defendant, testified upon direct examination that he was a brewer, and sold beer to the defendant for the saloon that was kept on the premises. He stated that John La Duke, defendants son, kept the .'hotel, and that defendant owned the saloon. He knew that ■defendant owned the saloon because he was his bondsman. •On cross-examination he stated that he concluded that the •son ran the hotel, and was in possession of the premises, because they showed him the lease from defendant to his ■son, and told him so. He said that was all the way he •knew, whereupon the court struck out his answer, except ■as to his statement that he saw the lease. In so doing, the court committed. no error, as the evidence was hear.say.
We find no error, and the judgment must be affirmed.
'.The other Justices concurred. | [
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Montgomery, J.
The deceased, Thomas Taylor, and claimant's mother were brother and sister. In ISIS the sister, Mrs. Grimm, was divorced from her husband, and at this time the claimant was 16 years of age. The claimant introduced evidence tending to show that at this time, and at various times thereafter, Mr. Taylor requested David to remain at home with his mother, and to care for her and his minor brothers and sisters, contributing from his wages and earnings, and promised him that he would pay him well for it when he was through with his money. The claimant offered further testimony to show that he did remain at home with his mother, and did contribute to her support, and to that of the minor children, and that" Mr. Taylor at various times acknowledged himself satisfied with the manner in which he was complying with his request. The claimant recovered a verdict of $1,000. The executor appeals.
The assignments of error are numerous. We do not deem it necessary, to discuss all the questions raised, as many of. them are not likely to arise upon another trial. The questions which we deem important are whether the claim filed in the probate court was broad enough to admit the evidence offered; whether the testimony offered tended to show a valid “ agreement; and whether the proofs were such as to admit of submitting the question to the jury as to whether there was an express agreement to leave to plaintiff $1,000 by will.
1. • The claim filed was not a formal document. It had not the elements of a declaration, but this is not required. It was in the form of an account, and read as follows:
“Estate of Thomas Taylor, Deceased,
“ In account with David Gbimm, Dr.
“ To services in the care and aiding and supporting Ann Grimm, sister of deceased, and minor children of said Ann Grimm, from November 15, 1875, irp to. the time of the death of the deceased, February, 1889, at the special instance and request made by said deceased in his life-time, at $150 a year,— 15 years and 8 months______________________$2,387.50.”
It is claimed that this account did not admit of proof that the -claimant contributed money to the support of the family; but we think the language, “aiding and support, ing Ann Grimm and children," is broad enough to include aid and support by the contribution of money.
2. Did the contract, as proven, create a valid obligation? 'It is said that the claimant did no more than he was legally and morally bound to do; but this is not so. The father was the one legally entitled to the claimant's services, and it is fairly inferable from the testimony that he was emancipated by the father. He might have left home, but the testimony offered on behalf of the claimant tended to show that he remained at the special request of the deceased, and upon his promise to pay him for his services. This furnished a sufficient consideration. Waldron v. Alexander, 133 Ill. 30; 136 Id. 550 (24 N. E. Rep. 557; 27 Id. 41); Hamer v. Sidway, 124 N. Y. 538 (27 N. E. Rep. 256). It was strenuously insisted upon the argument that the evidence offered amounted to no more than an assurance by the deceased that he would remember the claimant in his will, and that claimant did not rely upon such assurance as in the nature of an express contract or promise. We agree, fully, that the danger attendant upon the assertion of claims of this character is such that the trial court should see to it that the jury are not misled. into assuming an express promise from mere loose expressions of commendation or assurances; but there is sufficient evidence in this record to justify submitting the ■question to the jury as to whether the services were in fact rendered in reliance upon the uncle’s promise.
3. The circuit judge instructed the jury, among other things, as follows:
“ If you find from the evidence that David Grimm was induced to perform the services in question for the family ■of his mother upon the promise of his uncle, Thomas Taylor, to give him $1,000 upon his death, by and through .a will, and jmu also find • that no compensation was made in and by the will, — and about that there is no dispute, that the compensation was not so made, — then you will find for the plaintiff in the sum of $1,000.”
It is contended by. the counsel for the estate that there was no evidence to justify submitting this question to the .jury. The testimony offered on behalf of claimant was that ■of his mother, who testified, in answer to the question, “Did he say when or how he would pay him?” ‘‘‘'Well, it was when he was done with the property. He always told me he would leave me a thousand dollars, too, as well .as him.” Referring again to the same conversation: “I heard him tell Dave to stay, and be a good boy, and work, and turn all he could, and get things, what he could, for the benefit of the children and myself. “Q. Was that .all that was said? “A. That.is all I heard, — all but that he would pay him well if he would stay and do what he ■could.”
Again, on redirect examination she testified, in answer to the question, “What did he say about how he would pay him?” “A. Well, when he was through with his property, after his death, — that was the time. He was to give me $1,000, too.”
Charlotte Grimm, a sister of claimant, testified that, in 1883, claimant told her uncle that he wanted to go away, because he thought he could do better. The uncle said, “No, he did not want him to go; to stay here, help all he could, give all the service he could to help mother bring up the rest of us; and he would pay him, and would pay him well, if he would." In answer to the question, “ Did he in either of these conversations say how he would pay him?" she testified: “He spoke several times about his death. He was speaking several times about willing so much at his death.”
Martha Chamberlain testified to a statement, made by the deceased; that on one occasion the deceased said to her that “ he had helped them [referring to Mrs. Grimm’s family] some, and intended to help them more. He said, fI must have that boy David stay with his mother;’ and, said he: ‘I shall give him a thousand dollars, or more, if necessary. I shall stand by him just as 'long as I live.’ I did not hear him speak of any arrangement with David." On cross-examination she testified: “He said he would stand by him as long as he had anything, and give him .a thousand dollars, and even more. He said he had no ■children, and he thought it was a charity for him to do this."
Hiram Eld red testified for the claimant to a conversation with the deceased, in which he said “he had hired him to stay at home; said he wanted to go off with the other’ boys, — AL, I think, — and David wanted to go, but he had hired him to stay. Don’t remember of his saying when or how he was to pay him."
Margaret Hovey testified to a statement of the deceased) in which he said “ David had done well; he was a good boy. Said he had hired him, and he intended, when he died, to leave him a thousand dollars. Had no other talk with him. on that subject after that.”
Ann Wood testified to a statement of the deceased, as follows: “ T promised to pay him well for his work, and I am going to do it/ He said David had done just what he had hired him to do, and he had been a faithful boy.”
George Wood testified’to a conversation with the deceased: “He said he hired him to take care of his mother, and to look after the family; that he had no fault to find, and he intended to pay him. Didn’t say how he calculated to pay him.”
This comprises the testimony offered on behalf of claimant upon the subject-matter of how he was to receive his pay. The only testimony tending, in the slightest degree, to support an agreement to pay a thousand dollars at his death, is that of Mrs. Hovey, who couples the statement of the deceased that he had hired the claimant with the statement that he intended to leave him a thousand dollars. This, however, is not inconsistent with the alleged contract which the other testimony tended to show, — that he was to pay him well for his services,- — and does not tend to show that the agreement between the deceased and claimant was that he was to receive $1,000. This might not have been damaging error, but for the fact that* the claimant’s mother was permitted to testify to an understanding that the deceased was to leave her a thousand dollars, as well as the claimant, and the jury might have confounded the two statements. We think that in a case of this nature, where loose statements of the deceased are so liable to misconstruction, extreme care should be exercised that the jury be not permitted to determine the case ' upon their own ideas of justice, without regard to whether a distinct contract was made; and that it was error to submit to the jury the question of whether there was a distinct contract to pay the claimant $1,000 for his services rendered.
For this error the judgment will'be reversed, and a new trial ordered.
The other Justices concurred. | [
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] |
Long, J.
This bill is filed to establish the complainant’s title to a certain piece of land in Kent county, and to procure the cancellation of a deed which she claims clouds her title.
It appears that the land formerly belonged to R. G. Chaffee, the husband of Mary A. Chaffee, and was by him conveyed, with other lands, to his wife, a short time before his death, in 1886. The 40 acres in question constituted the Chaffee homestead, and on May 8, 1888, Mrs. Chaffee executed a deed of the same to the complainant. On the same day she also made a will, by which she disposed of all the other of her real estate and personal property. In the seventh clause of the will she states:
“I give, bequeath, and devise all the rest of my real and personal estate to Ella Burk, to whom I am under many obligations.”
These papers — the deed and will — were prepared hy a neighbor of Mrs. Chaffee, and after their execution, it is claimed, she stated she would submit them to the judge of probate, and, if they were all right, she would deliver them to Lucius C. Burt, to be held by him until her death, when he was to deliver the deed to the complainant, and the will to the defendant, who was named by the will as executrix. The complainant and defendant are nieces of Mrs. Chaffee, and at the time of the execution of the deed and will the complainant was living with her. A short time after these papers were executed Mrs. Chaffee took them to the probate office, and showed them to the probate register, and was advised that they were all right in form. In the early part of September, 1888, Mrs. Chaffee, who was then about 60 years of age, was stricken with paralysis. Soon after this she sent for Mr. Burt, who resided about a mile from her, and delivered the papers — the deed and will — to him, saying, as it is claimed, that he knew what to do with them. A few weeks after the papers were handed to Mr. Burt, it was arranged that the complainant should visit her mother in Kansas, and that during that time Mrs. Chaffee should stay with the defendant and her husband at Grand Bapids. She went there on Saturday, October 13. Two days before going to live with the defendant she took the deed from Mr. Burt, and two or.three days later destroyed it. After she had gone to live with the defendant, she made and delivered a deed of the land to her. Mrs. Chaffee lived about two and a half years after this deed was made. She died in March, 1891. The defendant’s deed was placed on record soon after Mrs. Chaffee died. Defendant and her husband are in possession of the premises in controversy, claiming under the deed from Mrs. Chaffee.
It is contended by the complainant:
1. That the deed to her from Mrs. Chaffee conveys the absolute title, and that tbe delivery to Mr. Burt was intended to be a delivery to her, to take effect after the death of the grantor, who had no right to recall it.
2. That, though there was no absolute delivery of the deed, and Mrs. Ohaffee had the power to recall and destroy it, yet the complainant took title under the will, which has since been probated, and is therefore in a position to contest the title claimed by the defendant under her deed, and does contest it on the ground that Mrs. Chaffee, at the time of its execution, was mentally incom-' petent to make a deed, and was unduly influenced to make it.
Defendant contends:
1. That the bill is multifarious.
2. That the complainant’s remedy is at law.
3. That there was no delivery of the deed to complainant.
4. That Mrs. Chaffee was mentally competent to make a deed to defendant, and was not unduly influenced to make it.
The court below found from the evidence that the deed made by Mrs. Chaffee to complainant was never delivered to her, but was intended by Mrs. Chaffee as a testamentary disposition, and was subsequently revoked; and that the deed to the defendant from Mrs. Chaffee was made and delivered to defendant, and was free from fraud or undue influence, and that Mrs. Chaffee was mentally competent to make it. The court thereupon dismissed the bill, with costs.
. We need not discuss the points raised by the defendant’s counsel that the bill is multifarious, or that complainant has a remedy at law. * It is apparent from the evidence in the case that the deed to complainant was never delivered to her to take effect as a deed, nor ever placed by Mrs. Chaffee in the hands of Mr. Burt for delivery, so that she had no right to revoke it at any time before her death; and the evidence falls short of proving that Mrs. Ohaffee was mentally incompetent to make the deed to the defendant, or that any fraud or undue influence was practiced upon her by the defendant, or any one on her behalf, which caused her to make it. The question of the delivery of the deed to complainant to take effect presently is one of intent. After Mrs. Chaffee had recalled it, she stated that it was never delivered. Mr. Burt, when called upon by Mrs. Chaffee to give it back to her, did so at once, and without question. He therefore never made any claim torts possession until Mrs. Chaffee died. It is evident from the whole transaction that Mrs. Chaffee and Mr. Burt both understood that, in order to constitute a delivery, it would be necessary to put it into the grantee's hands; and, not intending to make a delivery, Mrs. Chaffee left it with Mr. Burt, so that she could recall and revoke it at pleasure.
In Schuffert v. Grote, 88 Mich, 650, a deed was made from father to son, and actually delivered to the grantee. The father said he did not want it to go on record, and the son handed it back to him. The father afterwards destroyed it, and made a new deed to another. It was held that it was clearly his intent to make only a testamentary disposition of his property, and that his deed was subject to revocation. In the present case, the deed was never-delivered to the grantee, but placed in the hands of Mr. Burt, who was clearly the agent of the grantor, and not. of the grantpe.
In Pennington v. Pennington, 75 Mich. 600, the deed! was delivered to Mr. Niles, to be delivered to the grantee after the death of the grantor; and it was held that it was subject to the grantor's right to rescind or alter it at pleasure. There were as strong reasons in that case for holding a delivery of the deed as in the present.
The question under the case is one of intent, to be established by proofs. We are satisfied that Mrs. Chaffee never intended to place the deed to the complainant beyond recall, and she did recall and destroy it before deeding to. defendant.
We need not set out the testimony given upon the trial by which complainant sought to establish the fact of Mrs. Chaffee’s mental incompetency, and the exercise of undue influence over her by the defendant. It is not satisfactory, and falls short of showing either.
We think the court below reached the correct conclusion, and the decree below will be affirmed, with costs.
The other Justices concurred. | [
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Montgomery, J.
In 1885, plaintiffs held about $40,000 of the capita] stock of the Galvin Brass & Iron Works. The defendant was also a stockholder and director in the corporation. An agreement was entered into between the plaintiffs and defendant, by the terms of which defendant agreed, for a consideration of $3,000, to secure for plaintiffs the majority of the stock, so that at stockholders' meetings the plaintiffs could control the organization of the board, the election of officers, etc. The plaintiffs gave their check to defendant for $3,000, which was paid, and a memorandum was placed on the back of the check by the plaintiffs, specifying the agreement in accordance with which the check was given, and signed by O’Brien, the defendant. It is claimed that the defendant subsequently promised to repay the $3,000. Later the People’s Savings Bank, which was also interested in the corporation, and held two mortgages against, the plaintiffs, amounting to some $1,900, was desirous of obtaining control of the stock of the corporation. The plaintiffs employed Col. Atkinson and Mr. Stevenson to negotiate a settlement with the bank and defendant, O’Brien. A settlement was effected, and an agreement entered into in the following language:
“ The Galvin Bros. (Thaddeus Galvin, John Galvin), on the one part, and the Galvin Brass & Iron Works, the People’s Savings Bank, and M. W. O’Brien, severally, on the other part, have settled in full all matters and differences between them, and all claims and counter-claims and demands they may have jointly or severally against each other, of every kind and description, the same as if such claims and demands were herein particularly described and mentioned. It is understood that certain patterns belonging to Galvin Bros. * * * will be delivered to Galvin Bros, on demand.”
This is dated December 15, 18S8, and signed by all the parties. Subsequently the bank sought to enforce collection of the two mortgages held by it against the plaintiffs, and the plaintiffs defended against these foreclosure proceedings, claiming that the mortgages were included in this settlement; but this claim was determined adversely to them. See 81 Mich. 11. They then brought this suit against defendant, O’Brien, to recover the amount of the $3,000 paid to him, claiming that the receipt or agreement was signed under a mistake of fact on their part.
The circuit judge directed a verdict for the defendant. No error was committed in the giving of this instruction. The plaintiffs’ testimony offered in this case tended to show, not that tlie claim upon which they now bring suit was not included in the settlement, but they seek to avoid the settlement as a whole because of the alleged misunderstanding on their part as to whether the mortgages held by the bank were included. No offer has been made to rescind this agreement. The plaintiffs have retained the benefit of it, and it does not appear but that the defendant understood the terms of the settlement.' Mr. Stevenson, who negotiated the settlement on behalf of the plaintiffs, testified:
“There was no question at all but what Mr. Galvin and I thoroughly understood that that $3,000 claim was settled and embraced in the settlement. I do not say that Mr. Galvin understood the mortgages were included/ but do say that Mr. Galvin knew that the $3,000 claim was settled.”
Mr. Galvin testified, in effect, that Mr. Stevenson had full authority to effect a settlement of the matters in controversy. -It is very clear from this testimony that the $3,000 item was in fact included in the settlement If the plaintiffs could under any circumstances avoid the agreement, — which we do not decide, — certainly it was incumbent upon them, before bringing suit upon the original obligation, to place the parties in statu quo. Pangborn v. Insurance Co., 67 Mich. 683; Crippen v. Hope, 38 Id. 344; Jewett v. Petit, 4 Id. 508; Walsh v. Sisson, 49 Id. 423; Headley v. Hackley, 50 Id. 43.
To admit plaintiffs* contention here would result in making a contract entirely different from the one which they claim to have entered into, and much more to their advantage. It is their contention that this $3,000 claim was settled, and was offset against $1,900 of mortgages held by the bank. After discovery, as they say, that the $1,900 item was not included in the settlement, they seek to recover the. full $3,000 from this defendant, profiting by their alleged mistake to the amount of $.1,100, and this without any offer to rescind the agreement. No illustration could better demonstrate the propriety of the rule which requires of a party seeking to rescind an agreement, on the ground of fraud or mistake, that he first place the other party to the contract in statu quo.
Judgment will be affirmed, with costs.
Hooker, C. J., McGrath and Grant, JJ., concurred. Long, J., did not sit. | [
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Montgomery, J.
The plaintiff recovered below upon a claim originally presented before commissioners on claims. appointed in the matter of the estate of Eoss. The claim filed was for the price of cutting, putting in, and running a quantity of pine saw-logs during the logging season of 1887-88, under a written contract.
The contract provided for the putting in of the logs standing upon certain described lands, estimated to amount to about 5,000,000 feet. The agreement on the part of the plaintiff was to cut, skid, haul, and bank said timber upon a branch of the Escanaba river, and below the forks, on section 25, or above the forks, on section 24, ■ township 44 N., range 28 W. The timber was to be banked on or before the 1st of April, 1888, and was to be delivered by the plaintiff into the main jam at the mouth of said river during the driving season of that year, and with all diligence and dispatch. For the services tó be performed by the plaintiff, Eoss agreed to pay the sum of $5.50 per. 1,000 feet, — $1.50 per 1,000 as the logs should be skidded in the woods, $2.75 per 1,000 when the logs were banked at one of the places mentioned, and $1.25 per 1,000 when the logs should be driven into the main jam at the mouth of the river. The contract contained this provision:
“ Said party of the second part, in consideration of the sum of $5.50 per thousand feet, board measure, agrees to cut, log, skid, and haul to bank of branch of said Escanaba river, at the place before described, all the pine timber on said above-described lands, to be cut under the direction of a scaler furnished by said first party, being about 5,000,000 feet.”
The contract also designated the length and manner of cutting the timber, and provided that the scaler was to scale the logs either in the woods or on the bank of the river, at the option of Eoss, by a scaler furnished by him.
The plaintiff offered testimony tending to show that after the execution of this contract he entered upon the performance of the same, — got in supplies, built his camp, and started to cut and skid, and make his logging roads; that ho then, cut the main roads leading from the banking ground into the timber, and completed the same between the middle and the last of January; that in building the roads it was necessary first to cut out and grade them, ready to put on a snow plow when the snow came. Plaintiff commenced hauling on the 16th or 17th of January, and at this time had from 60 to 90 men at work, with 9 teams. A portion of this timber was standing upon lands detached from the main body, and this detached portion was the first cut and skidded, and was also the first timber hauled to the banking ground. On the 30th of January, plaintiff purchased 6 additional teams, which were at once placed by him upon the work. On the 14th of February he had banked, according to the report of the scaler, 1,879,477 feet. The plaintiff also introduced evidence tending to show that prior to this time Boss’ agent, Mr. Connolly, had told the plaintiff to stop cutting and skidding; that plaintiff refused to do so; that, while he was absent for a few days, Connolly peremptorily directed the work to cease. The testimony tended to show that Connolly told the plaintiff’s foreman, the latter part of January, to quit skidding, and that 'Cameron, the scaler, also forbade him soon after, stating that such were his instructions from Mr. Connolly. Cameron testified:
“ I was satisfied that they could get in all the logs there was, but this particular time he [referring to Connolly] made them stop, so I stopped them.” .
Plaintiff further introduced testimony tending to show that when he was stopped he let all his sawyers and swampers go. At the time the plaintiff was stopped from cutting, there remained upon the land from 800,000 to 1,100,000 feet, which was not cut subsequently by him.
1. The counsel for the estate contend that under the contract, giving the right to Boss, through the scaler, to direct the manner of cutting the timber, under the provision of the contract that the cutting of the timber should be under the direction of the scaler furnished by the first party (Ross), he had the right to stop the cutting when the scaler should be of the opinion that the plaintiff would not be able to get out any more timber than Avas already cut. The learned circuit judge instructed the juiy, in substance, that this provision did not confer this right upon Ross, but that the authority of the scaler only related to1 the manner of cutting; that under the contract the plaintiff had the right to proceed in his OAvn time to cut the timber, he being bound by the provision of the contract-to get the timber out so as to run it during the season. We think this.the correct interpretation, and that there is-no error here.
2. It is further contended by the counsel for the estate that there Avas in fact no broach of the contract by Ross,, and that plaintiff could have proceeded to cut the timber had he seen fit to do so; that the direction to stop cutting did not amount to a prevention. The circuit judge-instructed the jury, in substance, that if the statement, made by the agent of the deceased to the plaintiff was in the nature of a request, and that the plaintiff acquiesced in such request, and stopped cutting, this would not-amount to a breach of the contract; but that, on the other1 hand, if the plaintiff was directed to stop work under his contract, and did stop work under protest, or objected to-it, this would amount to a breach of the contract, entitling the plaintiff to recover damages for such breach. In this-there Avas no error. See 3 Amer. & Eng. Ene. LaAv, p. 904, and cases cited.
3. The plaintiff, after the alleged breach of the contract,, proceeded to cut a further quantity of logs, but, as the-jury found, was unable to complete the entire cutting,, because of the breach. He did, however, cut, haul, skid,. and put in the stream some 4,000,000 feet. Some 500,000-feet of these logs were not run during the season, and the estate sought to recoup damages for the failure to run out these logs. The jury were instructed by the circuit judge that—
“If Ross first broke this contract, so that there was a breach of it on his part, the plaintiff had a right to go on, and perform so much as he saw fit, and no more, and recover what it was worth for what he did. He would not be bound even by the contract price there. So it all depends on who broke the contract in the first regard. It does not lie in the mouth of a defaulter in performing a contract to say that the contract is evidence of the true value of the labor performed.”
"VVe think the court was in error in giving this instruction. "When the deceased committed a breach, the plaintiff was privileged to adopt either one of Wo courses: He could abandon further work under the contract altogether, and sue to recover tfie price of work already performed, and whatever damages he had already sustained because of being prevented from completing the contract; or he could continue, under the contract, to do so much of the work as he was permitted to do, and recover damages for the interruption. But in case he did so there is no reason why he should not be bound by the terms of the contract, so far as he did attempt its performance, and responsible for any breach of condition not dependent upon the neglected performance of the other. In other words, the law does not outlaw a party who has broken a contract in any particular, or deprive him of having the benefit of provisions inserted in such contract for his protection, in any case where the other party proceeds under the contract, and where the breach may be compensated in damages, and where the neglect of performance by the plaintiff is not induced by the act of the1 one guilty of the first default. This does not militate against the rule that, where covenants or agreements are dependent, the one who has committed the first breach is ordinarily without remedy under the contract. In the present case the running of the logs already cut and hauled, and those which the plaintiff was, subsequent to the breach, permitted to cut and haul, was not dependent upon the putting in of that portion of the timber which the plaintiff was prevented from cutting by the wrongful act of Ross.
In Milldam Foundery v. Hovey, 21 Pick. 417, there was an agreement, on the one hand, to furnish water power, and, upon the other hand, to manufacture certain articles. There was an interruption of the mill power, which was construed to be the breach of a condition precedent which would authorize the defendant to break off from his contract. Chief Justice Shaw, at page 444, lays down the following rules, which we think applicable to the present case:
“ Such breach of the condition could only excuse the defendant from such part of the contract requiring the use of mill power as remained to be performed when the breach of condition happened.” Further: “Although such suspension or interruption of the mill power might be construed to be the breach of a condition precedent which would warrant the other party to break off, and excuse the further performance of the contract, yet it is at his option to do so, or to waive the breach and proceed with the contract; and, if he continues in the performance of the contract until the impediment is removed and the power re-established, this amounts to a waiver of the forfeiture, and the party will no longer be excused thereby from the further performance of the contract.”
In 2 Pars. Cont. 678, it is said:
“Generally, where one fails to perform his part of the contract, or disables himself from performing it, the other party may treat the contract as rescinded; but not if he has been guilty of a default in his engagement, for he •cannot take advantage of his own wrong to defeat the contract; nor if the failure of the other party be but par tial, leaving a distinct part as a subsisting and executed consideration, and leaving also to the other party his action for damages for the part not performed.”
In Franklin v. Miller, 4 Adol. & E. 599, it is said:
“It is a clearly-recognized principle that if there is only a partial failure of performance by one party to a contract, for which there may be a compensation in damages, the contract is not put an end to.”
See, also, Boone v. Eyre, 1 H. Bl. 273, note a.
The judgment will be reversed, with costs, and a new trial ordered.
The other Justices concurred. | [
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] |
Montgomery, J.
This is ah action on a Michigan standard policy of insurance. The circuit judge directed a verdict for the defendant, on the ground that the plaintiff failed to show that proofs of loss were furnished within 60 days after the fire.
There is n'o question that proofs were furnished before suit; indeed, the defendant’s plea sets up that such proofs were furnished, and asserts as a defense that the plaintiff' was guilty of fraud and false swearing in making the proofs. The suit was instituted within the 12-months limitation fixed by the policy. The case is ruled by Steele v. Insurance Co., 93 Mich. 81.
Judgment reversed, and a new trial ordered.
The other Justices concurred. | [
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] |
Hooker, C. J.
Complainant is the owner of a mortgage upon certain premises in the city of Cheboygan, used as a foundry, machine shop, and blacksmith shop. This mortgage was made December 14, 1882, for $2,000, with interest at 8 per cent., and was foreclosed by advertisement, the premises being bid in for $2,402.61 by the complainant, who (the bill states) will become entitled to a sheriffs deed upon July 3, 1892, at which time her investment will amount to $2,594.82. The bill is filed to restrain the defendant from removing certain machinery upon the premises, viz.: One iron planer; one upright power drill; one shaper; three iron lathes; one wood lathe; one upright engine; one horizontal boiler; one band saw and. frame; one rip saw and frame; one foundry cupola furnace and blower; and the belting, shafting, pulleys, and boxes necessary for the running and management of the above machinery.
It is contended that the bill must be dismissed under the demurrer clause in the answer, for the following reasons, viz.:
1. That the bill does not allege that the articles named are fixtures.
2. That it fails to show any claim of the property in controversy by the defendant, or threat of removal.
3. That no injunction can properly issue upon information and belief.
Had a demurrer been filed, these objections would have been fatal. But the law does not favor the raising of technical questions after hearing upon the merits, and will not permit the dismissal of a bill upon a demurrer clause in the answer unless the bill is fatally defective, and past remedy by amendment. Barton v. Gray, 48 Mich. 164; Bauman v. Bean, 57 Id. 1; Lamb v. Jeffrey, 41 Id. 719.
The bill impliedly states that these articles are part of the -realty. When we read the sixth clause in the light of the whole bill, no other inference can be drawn.
The failure to allege threats could have been the subject of amendment in the court below, and probably would have been had any one considered it necessary. Threats were not even proved; but, as defendant’s answer claimed this property to be personalty, not covered by the mortgage, and this question was all that was litigated, we may consider the intention to remove admitted.
This brings us to the merits of the case. The proof shows that all of these articles were placed in a building-erected many years ago for a foundry and machine shop, by the owner of both, and, while some of the machines were not fastened to the soil or building, they were heavy, and it was unnecessary. All were adapted to the business for which the building was erected. Furthermore, the preponderance of the proof shows that the parties understood that this property was to be covered by the mortgage. We think the decision of the circuit court in holding that the mortgage covered these articles was in accord with the Michigan authorities.
A point is made that an injunction cannot properly be granted when the bill fails to allege the requisite facts upon the oath of the complainant. That is true where the injunction sought is preliminary, but we see no reason why relief by injunction cannot be based upon proof presented upon the hearing. In this case, while the injunction should not have been allowed, it was permitted to stand until the hearing, and, “sufficient equity appearing,” it should be perpetuated. Clark v. Young, 2 B. Mon. 57.
The record may be remanded, with directions that complainant be allowed to amend her bill, whereupon the decree may stand affirmed. Complainant will recover costs of both courts.
The other Justices concurred. | [
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] |
Long, J.
The policy sued upon was issued by the defendant company January 5, 1891, for $500, upon the life of Thomas B. Wood. It contained the following condition:
“ If said life dies by his or her own hand or act within three years from the date hereof, whether said life be sime or insane, this contract of insurance shall thereby and thereupon become void and of no effect; but, as an act of grace, the premiums received will be repaid to the person or persons designated in condition fifth herein, but no greater amount will be paid.”
Thomas B. Wood died September 8, 1891. On the next day after his death plaintiff furnished the defendant company with proofs of death, stating in said proofs that the insured died by suicide. Payment was refused; and defendant, in its plea of the general issue, gave notice that it would offer as a defense that the insured committed suicide, making the policy null and void. The case was tried before a jury, and a verdict rendered in favor of the plaintiff for half the amount of the policy, with interest.
On the trial the plaintiff put in evidence the proofs of death which she had furnished to the defendant company, and also claims to have introduced testimony, tending to show that the death was accidental. After her testimony had been given, the defendant called the plaintiff’s attention to an assignment to her daughter of a portion of the policy sued upon. Plaintiff admitted the making of the assignment, which was in writing, and the court thereupon, on motion of her counsel, permitted an amendment to the declaration, making the daughter one of the parties plaintiff in the suit.
The court submitted to the jury for their determination the question whether the death was accidental, or whether the deceased came to his death by his own hand, stating to them:
“It rests upon the plaintiff to satisfy you by a jn'eponderance of proof that the death of the deceased was accidental, because it is undisputed that the taking of the arsenic was what caused his death; and if he took it with the intention of destroying his own life there can bfe no recovery, but if he took it by mistake the plaintiff is entitled to recover.”
Defendant’s counsel raise three questions:
1. That the court was in error in permitting the amendment to the declaration, adding a new party as plaintiff.
2. That, the plaintiff having shown by her proofs of death that the deceased came to his death by his own hand, she is now estopped from setting up the claim that the death was accidental.
3. That there is no testimony in the case showing or tending to show that the deceased came to his death by accidental means.
In the present controversy we need pass upon but one question, and that is whether the amendment to the decía ration was properly allowed. It is contended by plaintiff’s, counsel that it was properly allowed, for the reason that, the defendant took no notice of this assignment to plaintiff’s daughter of a portion of the policy when it accepted the. proofs of death; that no one was claiming anything from the company but the plaintiff; that there was.nothing on the policy to show that it had been assigned, and that the company did not notify plaintiff’s attorney that such an assignment existed, but sought to use it as a technical defense on the trial; that, in the light of these things, it' would be a great injustice not to allow the amendment. Counsel cites, in support of this contention, Mercantile Ins. Co. v. Holthaus, 43 Mich. 423. All that was held in that case, however, was that separate interests held by several persons in the same policy of insurance may be united by the assignment of the policy to one individual, who may bring suit upon it.
Section 7631, How. Stat., provides:
“The court in which any action shall be pending shall have power to amend any process, pleading, or proceeding in such action, either in form or substance, for the-furtherance of justice, on such terms as shall be just, at anytime before judgment rendered therein.”
This statute has been given a very liberal construction by this Court, but in no case has it ever been contended that an amendment to bring in new parties in an action at law could be allowed. In Wood v. Circuit Judge, 84 Mich. 521, an amendment to a declaration was allowed substituting heirs of a member of a mutual benefit association as plaintiffs in a suit brought in the name of the administrator to recover upon an insurance policy. This was allowed upon the ground that it was not a substitution of new parties to the action, but the substitution of persons beneficially interested, as in both cases, whether in the name of the administrator or of the heirs, it was really •a claim of the heirs. The real parties remaining the same, the change was of nominal parties only, and the amendment was permissible, under the authority of Morford v. Dieffenbacker, 54 Mich. 593; Kimball & Austin Manfg. Co. v. Vroman, 35 Id. 310; Merrill v. Kalamazoo, Id. 211; Kinney v. Harrett, 46 Id. 87.
In the present case, however, the action was brought in the name of Eliza Wood as sole plaintiff, while the title to a portion of the policy was in fact in her daughter, under a written assignment, which had been filed with the -company prior to the death of Mr. Wood. The plaintiff •■admitted her signature to this assignment. The court was in error in permitting this amendment to be made. When it appeared upon the trial that the plaintiff was not the •sole owner of the,claim, the court should have directed a verdict in favor of the defendant. Plaintiff could not maintain the action in her own name when it appeared that she was not the sole owner of the claim, and, under the most liberal construction of the statute of amendments, the court had no power to amend by bringing in another party plaintiff.
In this view of the case, we decline to pass upon the other questions raised.
Judgment reversed. No new trial will be ordered.
'The other Justices concurred.
See 94 Mich. 39. | [
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Hooker, C. J.
Plaintiffs, being owners of the government title to the premises in controversy, bring ejectment against defendant, who entered into possession in November, 1882, under a deed from one Baldwin, who was a grantee under void tax titles. The only defense made is that of adverse possession. The case was tried by. jury, and a verdict for defendant was rendered, upon which judgment was duly entered, and plaintiffs appeal.
Where title to land is sought to be divested upon no better claim than occupancy, it can be justified only by clear and cogent proof upon each of the essential elements of adverse possession. Yelverton v. Steele, 40 Mich. 538; Pendill v. Agricultural Society, 95 Id. 491. And until each of these is supported by something more than an inference, the question should not be submitted to the jury. When there is evidence upon each of them which, if believed, can be said to establish adverse possession, the case should go to the jury.
The evidence shows that in 1861 Baldwin employed one Poxson, a neighboring farmer, to look after the land, to protect his timber; giving him five dollars, and telling him that he could have the marsh grass. Beyond paying the taxes, this was all that Baldwin did. Under this arrangement, Poxson did, substantially, nothing more than to drive his cattle there sometimes to pasture, and to authorize two men to cut grass. The significance of these acts is materially lessened by the facts that the land was a wild swamp lot, unfenced, used by the cattle of the neighborhood as a common, and that grass was cut by any one who chose, without molestation by Poxson. Poxson testifies that—
“ I went around the land with Baldwin, and showed him the line,” — and continues: “I didn’t do much of anything about it. No one stole off the timber then, but I looked after it for Mr. Baldwin.”
His looking after it was not sufficient to prevent wood roads being cut by persons taking hay. This supervision by Poxson, such as it was, came to an end in 1876 or 1878, after which he paid no attention to the land, and there is no evidence that any one did. There is evidence that one or both of the men whom Poxson authorized to cut grass continued to do so, and that Baldwin’s son paid taxes. But it is equally clear that the land remained unoccupied for several years, until in 1882 the defendant entered upon it.
This testimony was all admissible, but falls short of' that “ clear and cogent proof ” which permits the divestiture of. title to land. Some of the cases seem to have given rise to the assumption that adverse possession becomes a ques tion for the jury when there is any admissible evidence tending to establish it, but we understand the rule to be that until the evidence reaches the required degree of clearness and cogency (which is manifestly a question for the court) there is nothing to go to the jury; and it is a clear duty of courts to protect the rights of landholders from the danger of capricious verdicts by refusing to allow consideration of the question of adverse possession by a jury until evidence sufficient to make a prima facie case, under the rule laid down in the case of Yelverton v. Steele, has been introduced.
The jury should have been directed to render a verdict for the plaintiffs.
Judgment reversed.
Long and Grant, JJ., concurred with Hooker, 0. J.
McGrath and Montgomery, JJ., concurred on the ground that the possession was interrupted for several years. | [
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Long, J.
Bespondent was informed against, and convicted, under How. Stat. § 9122«, which reads:
“Any person who shall assault another with intent- to do great bodily harm, less than the crime of murder, shall be punished by imprisonment in the State prison not more than ten years, or by fine not exceeding eight hundred dollars, or by both, in the discretion of the court.”
The case comes to this Court on exceptions before sentence.
It appeared on the trial that on the night of May 23, 1892, two young men, by the names of Flanders and Ottobein, were engaged in a street fight. One of the parties called for help, when a police officer ran to the place, and sought to arrest the two. Ottobein broke away from the officer, and, while the latter was engaged in securing Flanders, he was struck on the head by a stone thrown by a person whom the officer afterwards claimed to recognize as the respondent. Flanders was complained against for the offense of resisting an officer, and the respondent was complained against, and convicted, under the statute above quoted. Flanders’ trial came on first in the superior court of Grand Bapids, and he was found guilty by the jury. At the same term respondent was brought to trial, and seven of the jurors who sat in Flan- tiers’ ease were permitted, under objection, to sit in the case against respondent.
It is claimed by counsel for respondent that the verdict should be set aside for the reasons:
1. That the act under which the conviction was had is unconstitutional and void.
3. That the court erred in permitting the jurors who found Flanders guilty to sit in the case against respondent.
3. That the court erred in its charge to the jury on the question of alibi, claimed as a defense in the case.
This statute was passed in 1883. Act No. 71, Laws of 1883. Questions relative to convictions thereunder' have been before this Court in People v. Sweeney, 55 Mich. 586; People v. Ross, 66 Id. 94; People v. Sebring, Id. 705; People v. Lennon, 71 Id. 298; Turner v. Circuit Judge, 88 Id. 359; People v. Ellsworth, 90 Id. 442; People v. Miller, 91 Id. 639.
In People v. Sweeney, the respondent was charged in one count with the crime of assault with intent to kill and murder, and, in the second count, with an assault with intent to do great bodily harm, less than the crime of murder. The claim was made in this Court that the count for the statutory offense of an assault with intent to do great bodily harm, less than the crime 'of murder, could not be joined with a count for the common-law offense of assault with intent to kill and murder. Mr. Justice Sherwood, writing for the Court, overruled this objection, and, in speaking of this statutory offense, said:
“It is unnecessary now to determine the extent of the injury required to bring a case within the statute under which the conviction in this case was had. It very clearly appears from the record that f great bodily harm, less than murder,’ was committed.”
The respondent was convicted of this statutory offense, but the case was reversed because of the erroneous admission of evidence by the trial court.
In People v. Ross, Chief Justice Campbell wrote for reversal, upon the ground that the proofs offered showed no more than simple assault. The prisoner was-discharged.
In People v. Sebring, it appeared that, when the cause was called for trial, respondent’s counsel moved to quash the information upon the ground that the complaining witness was the respondent’s wife. This was thd only error relied upon, and Mr. Justice Sherwood said:
“ It would be a strange rule of law, indeed, either' common or statute, which would not allow a wife, when assaulted and beaten until her life is endangered by a cruel and malicious husband, to resort to the courts, and make her complaint, and secure his arrest.”
The conviction was affirmed.
In People v. Lennon, the respondent was charged in two counts, as in the case of People v. Sweeney, hut convicted upon the count for assault Avith intent to do great bodily harm. The defense Avas that the respondent Avas acting in self-defense. Mr. Justice Morse, AArriting for the Court, said- that the proofs did not justify a conviction for any greater offense than assault and battery. The prisoner was discharged.
In Turner v. Circuit Judge, it was held that the respondent could not be convicted of assault and battery under an information charging him with the statutory offense of “assault Avith intent to do great bodily harm, less than the crime of murder,” but not charging a battery, nor could the information be amended, after verdict and before judgment, so as to include the latter charge.
In People v. Ellsworth, it was held that one or more respondents might be informed against for an assault upon two persons with intent to do great bodily harm, less than the crime of murder, if the assault complained of was made by the same act, and that in Turner v. Circuit Judge it was not intended to hold that under such a charge a person conld not be convicted of assault and battery, if such lesser offense were properly charged in the informations The conviction was sustained, Chief Justice Morse writing for the Court.
In People v. Miller, it was held that the intent to do great bodily harm, less than the crime of murder, under certain circumstances, might be inferred from the act itself, and that the facts appearing on the trial showed that the respondent intended to do great bodily harm. The conviction was affirmed. It was said by Chief Justice Morse in that case:
“ The assignments of error are mostly based on the main proposition that, under the evidence on the part of the people, there was no greater crime than assault and battery of which respondent could be convicted.”
It is contended by the Attorney General that each of the foregoing cases, of necessity, involved the constitutionality of the act in question; and that especially in the case of People v. Ellsworth, supra, was that question raised. It appeared in that case that the respondent's counsel moved to quash the information in the court below on the ground that the information charged no offense known to the laws of this State. The motion was denied. The principal point made in this Court was, however, that the information charged the offense to have been committed upon two persons, and that, under the statute, the word “ another ” meant one person, and no more. But the conviction was affirmed, and the constitutionality of the act necessarily passed upon. It is also urged by the Attorney General that in People v. Miller the attention of the Court was again called to the statute, and the charge of the court below as to what would constitute the offense, and that, necessarily, the Court passed upon its constitutionality.
Assault and assault and battery were offenses at the common law, and had their well-understood meaning. Our statute has not attempted to define them, but to fix and determine the punishment to be inflicted. Prior to the-enactment of the statute under consideration, the Legislature had not attempted to fix any degrees 6f the offense of assault, except in cases where some other crime or misdemeanor was perpetrated or attempted to be perpetrated. Under the statute in question, the Legislature has fixed a penalty not to exceed 10 years' imprisonment in the State prison for an assault upon another with intent to do great bodily harm, less than the crime of murder, thus creating an offense of a higher degree than a common assault and battery.
The proposition that only in this State could such a statute be found led us to examine the statutes of other states for the purpose of verifying the statement. We. find that several other states have quite similar statutes., Section 3875 of McClain's Annotated Statutes of Iowa (1884). provides a punishment for assault with intent to inflict a, great bodily injury. Sections 6141, 6144, of the Minnesota-Statutes (1891) provide a punishment for wrongfully and willfully wounding or inflicting grievous bodily harm upon another. Section 5595 of the Nebraska Consolidated Statutes (1891) provides:
“If any person assault another with intent to inflict a great bodily injury, he shall be punished, on conviction thereof, by imprisonment in the penitentiary for not, less than one year nor more than five years.''
The Public Statutes of New Hampshire (1891), by chap. 378, sections 30 and 31, add a greater punishment to what is termed “aggravated assault and battery'' than is given to simple assault and battery. Section 4377 of Sanborn & Berryman's Annotated Statutes of Wisconsin provides:
“Any person who shall assault another with intent to do great bodily harm shall be punished by' imprisonment. in the state prison not more than three years, nor less than ■one, year.”
These statutes have received construction in some of the states. In Cokely v. State, 4 Iowa, 479, it was alleged in the indictment that the defendant committed an assault and battery upon the person of O. C. How, with intent to inflict upon the person of him, the said How, a great bodily injury. It was said by the court:
“A battery is only an aggravation of the assault, and when the assault is charged to have been made with a dangerous weapon it is a still further aggravation; and where it is charged to have been made with an intention to commit great bodily injury it is only an offense in a different degree. The assault is still the original offense, and the means, the intent, and the extent to which it is carried qualify only the aggravation of this original offense, to which additional punishment is often affixed by the statute.”1
In State v. Malcolm, 8 Iowa, 413, it was said:
“ It is the intent with which the injury is inflicted or attempted that constitutes the offense of an assault with intent to commit a great bodily injury; and, when the intent is shown, that which would be an assault, unaccompanied with the felonious intent, will be such when thus accompanied.”
In none of the states where a similar statute has been in force has its constitutionality been questioned, so far as our researches have gone. It has been in force in this State nearly 10 years, and never, until the present case, has its constitutionality been seriously questioned, though in People v. Ellsworth and People v. Miller the question was presented, and passed without much consideration as to its merits. We see no difficulty about the definition to be given to the offense. The Iowa court in Cokely v. State, supra, found no difficulty in defining it, or in holding that the case under consideration came within the statute. It is the intent with which the injury is inflicted that aggravates the • assault, and brings it within the statutory definition of an assault with intent to do great bodily harm. It must be an intent to do a serious injury, of an aggravated nature. The trial courts seem heretofore to have had no difficulty in defining the offense, or in making a jury comprehend when a case falls within the statutory definition. This point of the learned counsel must be overruled.
We think, however, that the court erred in permitting the jurors who sat in the Flanders case to sit in the present. The facts are nearly identical, and must necessarily have all been called forth in the Flanders trial. The jury in that case must have considered them, and reached some opinion as to the merits of the controversy in the present case. The respondent was entitled to a fair and impartial trial by an impartial jury, who had no preconceived opinions of his guilt or innocence. We are aware that some English and American authorities hold that jurors who have sat in one case are not disqualified from sitting in a case against another joint respondent, who has taken a separate trial, and involving the same state of facts. We are not inclined to follow that doctrine. Where the issue is the same in both cases, it is but fair to the respondent that he have another panel of jurors to try his cause.
For this reason the verdict must be set aside, and a new trial ordered.
The other Justices concurred.. | [
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Grant, J.
When this case was in this Court before it was held that the testimony showed without contradiction that the rights of Mr. Gillespie under the lease had ter ruinated. 85 Midi. 353. This question is therefore res judicata, unless the testimony now is different from what it was then. The court submitted the question to the jury upon the theory that his testimony ripon the last trial was different from that upon the first. The court said to the jury, after referring to the testimony upon the former trial:
“ Mr. Gillespie said substantially that he was mistaken in giving that testimony, or that there was a mistake in incorporating it into the bill of exceptions, and. therefore it still presents a case for your consideration.”
The liability of defendant depended entirely upon whether the rights of Mr. Gillespie under the lease had' terminated, and whether at the time of the assault he was in the lawful and peaceful possession of the premises. If defendant 'was in the lawful possession of the premises, he was guilty of no assault, but, on the contrary, both the plaintiff and her husband were guilty of an assault upon him.
Counsel for the plaintiff has furnished no index, as the; rule requires. We have, however, examined the record, and compared the testimony of Mr. Gillespie with his testimony as quoted in the former decision. His attention was expressly called to his evidence quoted in that decision, and his only reply was, “I do not recollect saying it.” Where testimony is taken down by a stenographer, who is an officer of the court, the mere statement of the witness afterwards that he does not recollect giving such testimony is not an impeachment of the stenographer’s testimony, nor does it justify a court or jury in finding that he did not so testify. The instruction of the judge, therefore, in the present case was more favorable to the plaintiff than she was entitled to. Under the present record this question is res judicata, and it is therefore unnecessary to discuss any of the errors alleged.
Judgment affirmed.
The other Justices concurred. | [
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] |
Long, J.
The plaintiff company, of which Mr. Wardle is receiver, organized and began doing business in 1879 by virtue of Act No. 82) Laws of 1873, and the amendments thereto. From its organization up to 1884, its membership grew to about 2,000, at which time the company became insolvent, and failed to collect assessments from many of its members. The insolvency becoming apparent, the Commissioner of Insurance of the State served upon the officers of the company a notice to close up its affairs unless, within 60 days, they collected assessments and paid up its losses and debts. The company failed to do this, and upon petition of the commissioner the plaintiff in this suit was appointed receiver by an order of the court. The receiver-found that the indebtedness amounted to about $22,000, and he proceeded to assess upon all members a sum sufficient to pay the debts and liabilities. Two policies had been issued to the defendant, — one September 24, 1880, and the other September 1, 1882, — in the usual form of the policies issued to members. The receiver assessed against the defendant, upon those policies held by him, the sum of $33.80. This assessment was made May 25, 1885, in accordance with the order of the court, under section 17 of the act under which the company was organized. The total amount of assessments made was $50,000, the .amount assessed against each member being in proportion to the amount of the insurance or interest of each member. This assessment became due and payable to the receiver from the defendant on July 15, 1885. The defendant has been a resident of the State during all the intervening years up to the present time. This assessment not having been paid by the defendant, this action in assumpsit was commenced on February 24, 1892, to recover the same. Defendant pleaded the statute of limitations. The court below found the above facts, but held that the action was not barred by the statute of limitations, and gave judgment in favor of the plaintiff. Defendant brings error.
The only question raised in this Court is whether the action is barred by the statute of limitations. Seetion 17 of the act provides that the receiver may sue in assumpsit to recover the moneys so assessed. It is admitted that these moneys became due and payable July 15, 1885,— more than six years before the action for their recovery .was commenced. Defendant insists that the ease is governed by section 8713, How. Stat., which provides that <call actions of assumpsit or upon the case, founded upon any contract or liability, express or implied,” must be brought within six years next after the cause of action shall accrue, and not afterwards; and that the obligation of the defendant to pay grows out of the contract relations between the parties, and hence falls within the terms of this section.
It is contended, however, by plaintiff's counsel that, for several reasons, tbe statute does not run against this claim. The first is that, when the commissioner determined to wind up the affairs of the company, he began suit in the circuit court for Ionia county under sections 9, 15, and 17 of the act of 1873, and upon filing the petition, as required by section 17, plaintiff was appointed receiver, and made the assessment as required by the act; that this was the first step in the suit; that, the assessment not having been paid, the bringing: of the present action is but the second step in the same proceeding. This claim has no force. If the amount became due and payable to the receiver on July 15, 1885, the action was barred before this suit was commenced, unless, for some other reason, such claims are brought out of the statute.
It is contended, however, that there was no privity of contract between the receiver and the defendant, either express or implied, and that the only basis of liability is created by the statute under which the proceedings are being had to wind up the affairs of the company, and under which the receiver was appointed, and that the claim, therefore, is nothing more or less than a specialty by statute; hence that the statute of limitations has no application, as that statute can apply only to cases where' there is a privity of contract between the parties to the action, and no other. “Specialty by statute" means some right or cause of action given by statute which does not exist at common law. In such cases the nature or cause of action does not depend, in any degree, upon any contract relation. There is no original obligation whatever created by the act of the parties. In the present case, the defendant, if liable at all, could be made so only by the contract existing between him and the insurance company. The evidence of this contract is the application and the policy. Section 1 of the by-laws of the company declares that the application shall be made a part of the contract of insurance, and be considered a warranty. The statute confers on the receiver merely the authority to levy and collect the assessment, which, without this authority, rests with the board of directors. Any defense which a party might have made against an action brought by the original party is equally available, and may be made with like effect, when the action is instituted by the receiver. High, Rec. § 205; Railroad Co. v. Railroad Co., 46 Vt. 792; Bangs v. Duckinfield, 18 N. Y. 597. The rule seems to be well settled that the statute of limitations does not begin to run on a deposit note given by a member of a mutual insurance company, whereby he agrees to pay a sum certain, or any part thereof, when required, and which, by its terms, is part of the absolute funds of the company, until an assessment is laid. Bigelow v. Libby, 117 Mass. 359; In re Insurance Co., 10 R. I. 42. In the present case, the assessment had been made more than six years prior to suit brought. If this had been made by the board of directors, no question could have been raised but that any action would be barred. The receiver stands in no better position. The case of Smith v. Bell, 107 Penn. St. 352, is quite similar in principle to this. It was held that the action for the assessment could be brought at any time within six years, as the statute of limitations commenced to run at the date of the assessment.
The court below was in error in holding that the action was not barred.
Judgment below must be reversed, and judgment entered h,ere for defendant for costs of both courts.
The other Justices concurred.
For cases construing various provisions of the act cited, see Insurance Co. v. Spaulding, 61 Mich. 77; Tolford v. Church, 66 Id. 431; Bacon v. Clyne, 70 Id. 183; Wardle v. Townsend, 75 Id. 385; Wardle v. Cummings, 86 Id. 395. | [
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McGrath, J.
This is a bill for partition.
Samuel Miller died in 1881, seised of certain real estate. He left a will, by which he devised to his “heirs at law, as the same would be -distributed by the law of descent of the State of Michigan as said law now is.” Decedent left a widow, but no issue. In the settlement of the estate, the interest of his widow, Mary A. Metcalfe, now the wife of complainant, and one of the defendants herein, was determined by the following order of the probate court:
“ That the use, net income, rents, and profits of the real estate, or interest therein, of which the said testator died seised, except such'as may be sold under the order of this court for the payment of any debts' existing against said estate, under the provisions of the will of the testator or otherwise, and the possession of such real estate, shall be decreed to belong to and be the property of the said Mary A. Miller, for and during the period of her natural life, subject, however, to the payment of all taxes or assessments against the said property, and all necessary expenses to keep said property in repair and condition.”
Complainant has since purchased one seventy-second part of the reversion, and one-fifth of the life-estate.
Mary A. Metcalfe filed an answer, admitting the matters set forth in the bill, and joining in the prayer thereof. Certain of the reversioners answered, denying: complainant’s right to partition. The court below dismissed the bill, and complainant appeals.
At common law, estates in remainder or reversion could not be compulsorily partitioned, nor could tenants in remainder or reversion interfere with tenants in j>ossession. After the statutes of Henry VIII., partition was onty allowed when there was an actual tenancy or holding of the parties to the writ, and when any of the parties were seised or possessed of a particular estate for life or for jrears the partition was necessarily temporary only, and commensurate with their estate. To make the partition absolute, another writ against the remainder-man was necessary when his estate fell into possession. Our statute relating to the partition and distribution of estates in the probate court follows the rule which succeeded the adoption of these statutes. How. Stat. § 5983 (being section 21, chap. 226), expressly provides that—
“When the term of a widow entitled to dower or other life-estate in the lands of a deceased person shall expire, the reversion may be assigned to the persons entitled to the same, and partition thereof be made in the manner prescribed in this chapter in relation to other estates of deceased persons.”
How. Stat. § 7850 (being section 1, chap. 270), providing for partition in equity, is as follows:
“All persons holding lands as joint tenants or tenants in common may have partition thereof in the manner provided in this chapter.”
Section 7852 provides that—
“Such suit may be maintained by any person who has an estate in possession in the lands of which partition is sought, but not by one who has ohly an estate therein in remainder or reversion.”
These chapters relate to the same subject, — the partition of estates, — and must be construed with reference to each other. Chapter 270 was designed to give to courts of equity jurisdiction in partition cases.
“The mischief,” says Mr. Freeman, “attending the ownership of estates in cotenancy, which the various statutes of partition were intended to avoid, was that which arose from disputes in regard to the occupancy of lands. * • * * Through the operation of the writ of partition, it was intended that the undivided possession should be severed, and that each person having the right to be in possession of the whole property should exchange that right for one more exclusive in its nature, whereby, during the continuance of his estate, he should be entitled to the sole use and enjojnnent of some specific purparty?” Freem. Coten. & Part. § 440.
It will not be contended that, prior to the division of the life-estate, its owner could have demanded partition as against the reversioners. There was no concurrent holding. The action is in its nature possessory. Its object is to distribute the possession between those entitled to possession. It is an adversary suit. Seiders v. Giles, 141 Penn. St. 93 (21 Alt. Rep. 514). She had an estate in possession. If she had purchased an interest in the reversion she would still have been the sole owner of the estate in possession.
Tenants in common are persons who hold by unity of possession. 4 Kent, Com. 367. Where two or more persons are entitled to land in such a manner that they have an undivided possession, but several freeholds, they are ten ants in common. The only characteristic common to tenants in common is that of undivided possession. 2 Eap. & L. Law Diet. 1256. Not only is the possession of one the possession of all, but the tenants respectively have the present right to enter upon the whole land, and upon every part of it, and to occupy and enjoy the whole. It is in this sense that the term “ tenants in common " is used in the statute. A reversioner has neither actual nor constructive possession, or the right to either, but has simply an estate in expectancy, the life-estate intervening. The owners of the life-estate are holders as tenants in common, and, as between them, partition may be had; but it does not follow that either is entitled to a partition as against the reversioners.
Complainant and his wife are the owners of the particular estate. That estate must stand alone, subject to its advantages and disadvantages, and may be sold if not divisible. The object of the statute was not to subject the reversion to the burdens or infirmities of the particular estate, but to enable joint tenants or tenants in common, or persons having an undivided possession, to have partition between themselves. One of the reasons that the statute requires the petition to set forth the rights and titles of all persons interested is to enable the court to determine the very question which we have been considering.
The decree of the court below is affirmed, with costs to defendants.
The other Justices concurred. | [
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Grant, J.
The respondent was convicted of incest with his own daughter, 16 years of age. Four errors are assigned. The crime was charged to have been committed July 30, 1892.
1. Acts of sexual intercourse between the respondent and his daughter were shown by the evidence at various times for a period of "about eight years previous to the commission of the crime alleged; also during that time one act of familiarity was shown, which was of such a character as to lead to the conclusion that its purpose was for sexual intercourse.' The evidence was properly admitted. People v. Jenness, 5 Mich. 305, 319. In that case evidence of acts of intercourse covering a period of five years was held competent. The reasons for the- admission of such evidence are there clearly stated in an able opinion by Mr. Justice Christianoy. People v. Hendrickson, 53 Mich. 525, appears to be in conflict with People v. Jenness, though the facts in the two cases are different. In the former case, acts of familiarity and intimacy, occurring over two years before the prosecution was commenced, were held inadmissible in a prosecution for adultery, on the ground that they were too remote. We adhere to the rule laid down in People v. Jenness.
2. The prosecuting attorney, in his argument to the jury, used the following language:
“It is an undisputed fact that this sort of conduct had been going on between the defendant and his daughter from the time she was eight years old down to the time of the commission of the crime for which he is now on trial.”
Under the record in this, case, we do not think this language was error. Several witnesses had testified to acts of sexual intercourse during the period covered. No evidence was introduced on the part of the respondent. No attempt was made to impeach the witnesses for the prosecution.
3. In his charge to the jury the court used this language:
“ In this case, upon the argument by counsel upon both sides, it has been conceded that, about the time and place charged in the information, the defendant and the complaining witness, his daughter, had sexual intercourse. It is claimed upon the part of the people that it was under such circumstances as make him guilty of the offense charged. It is claimed upon the part of the defendant that, while the intercourse took place, it was not under such circumstances as make him guilty under this charge, but constituted the offense of rape.”
This statement by the court was not challenged by the respondent’s counsel upon the trial, nor do they now state in their brief that it was not correct. Such statements in the instructions of the court will be presumed to have been correctly made where the record does not show that attention was called to them, and the court given an opportunity to correct them. Stanton v. Manufacturing Co., 90 Mich. 12, 15. It is apparent upon this record that the line of defense was that the evidence established a case of rape, and not of incest.
4. The respondent’s counsel requested an instruction that under the evidence, if any offense was committed, it was rape, and not incest, and that the verdict should be, “ Not guilty.” This instruction was ‘ refused, and the * court instructed the jury that, if the intercourse took place because of threats made at the time or previously, the respondent was guilty of rape, and they should acquit. This instruction was given at the request of the respondent, and was favorable to him. We are not prepared to say that the instruction correctly states the law, and upon' the question we pass no opinion. State v. Chambers, 53 N. W. Rep. 1090, is an instructive case upon this point.
The complaining witness testified that she consented to the intercourse, and detailed the circumstances under which, it took place. The testimony of the witness taken upon the examination was introduced upon the trial, in which she stated that on the 30th day of July, the date of the commission of the crime, the respondent threatened her that if she “ ever told of him he would kill her," and that she would not have submitted to him at any time if he had not threatened her, and that she was under the influence of those threats or she would not have submitted to him. It is not necessary to state her entire testimony taken upon the examination and upon the trial It was fairly and properly left to the jury to determine whether the intercourse took place under such circumstances as to constitute the crime of rape.
We find no error upon the record, and the judgment is affirmed.
The other Justices concurred. | [
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] |
McG-rath, J.
The Central Michigan Savings Bank was organizéd under. Act No. 205, Laws of 1887, with a commercial department and a savings department. On the 18th day of April, 1893, said bank, being unable to meet the then current demands upon it, closed its doors, and conducted no business thereafter. On May 4, 1893, the Commissioner of the Banking Department of the State filed a bill in the circuit court of Ingham county, alleging the insolvency of said bank, and praying for the appointment of a receiver for said bank. On May 8, 1893, plaintiff was appointed such receiver, and qualified as such. Plaintiff brought this suit to recover the sum of $3,529.27 due the bank upon the day of its suspension. Defendant was allowed to set off against this claim a certificate of deposit, dated July 19, 1892, for the sum of $4,000, issued to Nellie F. Butler by said bank, and which defendant purchased April 23, 1893, and judgment was rendered for defendant. Plaintiff appeals.
The sole question in the case is whether, in an action by the receiver of an insolvent banking corporation against a debtor of the bank to recover a sum due at the date of the suspension of the bank, the defendant may set off a certificate of deposit, procured by him from a creditor of the bank after its suspension, and before an application was made for the appointment of a receiver.
There can be no doubt that the certificate of deposit in this casé would, in a proper case, be a proper subject of set-off. It is well settled that, in a suit by a receiver of an insolvent bank upon a note or obligation due the bank, the defendant will be allowed to set off his deposit or a certificate of deposit held by him at the time of the suspension of the bank. Dickson v. Evans, 6 Term R. 57; Pedder v. Preston, 9 Jur. (N. S.) 496; Bank v. Rosevelt, 9 Cow. 409; Ogden v. Cowley, 2 Johns. 274; McLaren v. Pennington, 1 Paige, 112; Miller v. Receiver, Id. 444; In re Receiver of Bank, Id. 585; Smith v. Fox, 48 N. Y. 674; Bank v. Tartter, 4 Abb. N. C. 215; Berry v. Brett, 6 Bosw. 627; Jordan v. Sharlock, 84 Penn. St. 366; Farmers’ Deposit Bank v. Penn Bank, 123 Id. 283 (2 L. R. A. 273); Trust Co. v. Bank, 9 L. R. A. (Ky.) 108; Receivers v. Gas-Light Co., 23 N. J. Law, 283; Platt v. Bentley, 11 Amer. Law Reg. (N. S.) 171; Clarke v. Hawkins, 5 R. I. 219.
None of these cases, however, support the defendant’s contention. Indeed, so far as the question here involved is discussed, they are opposed to that contention. In Smith v. Fox, Jordan v. Sharlock, Bank v. Tartter, Clarke v. Hawkins, Receivers v. Gas-Light Co., and Platt v. Bentley, defendants were allowed to set off amounts which they had on deposit at the time of the bank’s suspension. In Clarke v. Hawkins, however, the court expressly held that—
“ The sum of 1667, claimed by the defendant against the bank as a bill-holder to that amount, cannot be allowed to him in set-off; the whole of the bills, so far as we can learn from the evidence, having been purchased by him subsequent to the injunction against the bank, at a discount of 50 cents on the dollar. The injunction against the bank, like the death of the deceased insolvent (Irons v. Irons, 5 E. I. 264), must at least fix a period back of which claims against ■ either cannot be purchased, carrying with them the equitable right of set-off against the claims for which the purchaser is liable to the estate of the insolvent bank or of the insolvent decedent in the hands of their respective administrators.”
In Dickson v. Evans, Lord Kenyon says:
“It would be most unjust, indeed, if one person who happens to be indebted to another at the time of the bankruptcy of the latter were permitted by any intrigue between himself and a third person so to change his own situation as to diminish or totally destroy the debt due to the bankrupt by an act ex post facto. In cases of this sort the question must be considered in the same manner as if it had arisen at the time of the bankruptcy, and cannot be varied by any change of situation of one of the parties."
Ashhurst, J., in the same case, says;
“Much fraud and great injustice would be introduced if any other rule than that -laid down by Lord Kenyon were to prevail."
Grose, J., adds the following.1
“One object of the act was to prevent a debtor of the bankrupt going about the country for the purpose of purchasing the bankrupt’s notes after the bankruptcy, and then pretending that he was a creditor at the time of the bankruptcy."
In Pedder v. Preston, the corporation of Preston opened an account at plaintiff’s banking house, and afterwards, becoming invested with the functions of a board of health, opened a second account. Plaintiff’s bank stopped payment. One of the accounts was overdrawn, and suit was brought to recover the amount of the overdraft. Held, that the other account owned by the same municipality could be set off.
In Bank v. Rosevelt, it was held that a set-off existing against a bank when it stops payment is allowable, but bills obtained by the debtors of a bank after it has stopped payment, though before a receiver is appointed, are not admissible as a set-off.
In re Receiver of Bank is to the same effect.
In McLaren v. Pennington, the court say:
“ In relation to the set-off, there can be no doubt of his equitable right to be allowed for any demand which he had against the bank at the time of the repeal of its charter. If he has purchased ujd bills of the bank, or pro cured the assignment of other claims, since that time, he cannot avail himself of them as a set-off, but must come in for his distributive share with the rest of the creditors."
In Miller v. Receiver, Miller had a deposit in the bank in his name, and also held $1,150 of the bills of the bank, drawn from the bank on his account before the bank stopped payment, and the court held that the debtor was entitled to any equitable set-off which he had at the time when the bank stopped payment.
In Ogden v. Cowley, in a suit brought on a note by the assignee of a bankrupt, it was held that the defendant could not set off a check issued by the bankrupt, bearing date before the bankruptcy, without further proof that the check came into his hands prior to the bankruptcy.
In Berry v. Brett, plaintiff was receiver of an insurance company, which, in the course of its business, had liquidated the claim which defendant sought to offset.
In Farmers’ Deposit Bank v. Penn Bank, at the time of its suspension, the Farmers* Deposit Bank (defendant below) held the check of the cashier of the Penn Bank.
In Trust Co. v. Bank, the bank, to which plaintiff’s assignors were indebted, was allowed to apply the deposits sued for to' the liquidation of that indebtedness.
The only case called to my attention which goes to the extent of the claim made by counsel for the defendant is that of Moseby v. Williamson, 5 Heisk. 278. The case was decided upon the ground that under the bankrupt law a banker was not insolvent unless he “stops or suspends fraudulently for a period of 14 days;" and, “in analogy to this rule as to bankruptcy," the court were unable to see “upon what ground the insolvency of a bank can be assumed from the simple fact of closing its doors for two or three days, or until some such step as filing a bill to have its insolvency determined has been taken."
In, the case of Smith v. Mosby, 9 Heisk. 501, the same court held that when a defendant, who is sued upon a note by the receiver of an insolvent bank, which has failed, and filed a bill asking to be wound up, offers as a set-off a certificate of deposit given by the bank, the burden is upon him to show that he received it previous to the filing of the bill by which the assets of the bank were impounded for the benefit of all its creditors.
In the case of Marr v. Bank, 4 Cold. (Tenn.) 471, the bank in 1862 was removed, by order of the Confederate officers commanding at Memphis, further south. After the war the assets of the bank, amounting to $25,000, were brought back, and were held by the officers of the bank, but they did not assume to continue the business of the bank. In the mean time complainant had recovered judgments against the bank upon the notes or bills of the bank, aggregating $27,321. Executions had issued upon these judgments, which had been returned nulla bona, and complainant sought by bill in equity to obtain a discovery, and the application of the assets to the payment of his judgments. The court, however, held that the bank was-insolvent; that its assets were held by the officers of the bank in trust for all the creditors, and that no diligence on the part of a single creditor could defeat the right of the others to a pro rata distribution of the fund.
I have been unable to discover any statute in Tennessee similar to our own relating to the winding up of the affairs of a banking corporation, or restricting the right of the corporation after an act of insolvency. The insolvency of corporations does not generally, of itself, extinguish the power of the company to manage its assets, or fix the lien of creditors upon the specific property in hand. Mor. Priv. Corp. § 786. A corporation, being a person in law, has the same rights, and is subject to the same obligations, as an individual, unless the act of' incorporation varies those rights and liabilities. Persons dealing with a corpo ration whose powers are restricted by its organic law are ■charged with a knowledge of such limitations, and are bound thereby. The act under which the. bank in the present case was organized subjects banking corporations to State supervision. It regulates the manner in which the business shall be done. A commissioner is provided for, and every bank organized thereunder is subject to the inspection and supervision of such commissioner. Upon the refusal of a bank to submit its books, papers, and concerns to inspection, such commissioner may institute proceedings for the appointment of a receiver. A bank desiring to go into liquidation must first give notice to the commissioner. No consolidation of banks can be had without the consent of the commissioner.
Section 55 provides that—
“On becoming satisfied that any bank has refused to pay its deposits in accordance with the terms on which such deposits were received (if received in accordance with the provisions of this act), or that any bank has become insolvent, or that its capital has become impaired, or that any bank has violated any of the provisions of this act, or for any cause hereinbefore or hereinafter stated, the Commissioner of the Banking Department may forthwith, with the approval of the Attorney General, apply to a court of record of competent jurisdiction for the appointment of a receiver for such bank, who, under the direction of such ■court, shall take possession of the books, records, and ■assets of every description of such bank, collect all debts, dues, and claims belonging to it, and sell or compound all bad or doubtful debts, and sell all the real and personal property of such bank on such terms as the court shall ■direct, and may, if necessary to pay the debts of such bank, enforce all individual liability of the stockholders. Such receiver shall pay over all money so collected or received to the State Treasurer, and also make report to the commissioner of all his acts and proceedings.”
Upon the appointment of the receiver it is made the duty of the commissioner to cause notice to be published, calling upon all persons having claims to present the same to the receiver.-
Section 57 provides for dividends under the direction of the commissioner, and requires the receiver to make ratable dividends of the moneys realized by him on the claims proven and determined, and the remainder of the proceeds, if any, after the costs and expenses of such proceeding and all debts and obligations of the bank are satisfied, shall be paid over to the stockholders.
Section 47 provides that—
“All transfers of notes, bonds, bills of exchange, or-other evidences of debt owing to any bank, or of deposits to its credit, all assignments of mortgages, or other security on real' estate, or judgments or decrees in its favor, or deposits of money, bills, or other valuable things for its use, or for the use of its stockholders or creditors, all payments of money, either after the commission of an act of insolvency or in contemplation thereof, with a view to prevent application of its assets in the manner prescribed in this act, or with a view to the preference of one creditor over another, shall be held to be null and void.”
The primary purpose of these provisions is the protection of depositors and other creditors, and the provisions of the act should receive a liberal construction to effectuate that object. The object of section 47 is to secure a proportionate division of the assets of the bank between its creditors, and to prevent preferences. By force qf this section, upon the commission of an act of insolvency the assets of the bank become actually impounded for the benefit of creditors. If a debtor can connive with his particular friends who may happen to have deposits in the bank (and a number of the debtors might do the same thing), the very object of this provision may be frustrated. It cannot be contended that the officers of the bank, after its suspension, could have received this certificate of deposit, and surrendered defendant’s obligation. That obligation was an asset of the bank, and the effect of that transaction would have been to prevent its application in the manner provided by the act. The law. will not allow or compel the receiver to do what it expressly prohibits the bank from doing. Diven v. Phelps, 34 Barb. 224; Bank v. Taylor, 56 Penn. St. 14.
In Diven v. Phelps, the bank suspended business, closed its doors, and was insolvent on the 21st of September. The receiver was appointed November 9 following. In the mean time defendant had procured certain bills of the bank, which he undertook to offset to a claim in favor of the bank. The cóurt say:
“The bills, having been obtained by the defendant after the bank had suspended and become insolvent in fact, could not, I think, be used as a set-off. * * * The bank could not then have paid this demand in any way. It was absolutely prohibited by statute from doing so. * * * If the bank, before the appointment of the receiver, had given up the defendant’s note in satisfaction of his claim as holder of the bills, the transaction would have been void, and the note thus given up might have been recovered of the ■ defendant as part of the assets belonging to such bank or the creditors thereof. * * * Before the defendant procured his, bills, the bank held the note against him, and, the latter being insolvent, the note belonged equally to all the creditors of such bank. If the defendant could be allowed to purchase or receive the bills of the insolvent bank, and with them satisfy, and thus take from the assets, this amount, or any other, the policy of the statute, which is to secure perfect equality among all the creditors of insolvent corporations of this description, would be entirely defeated.”
In the course of the opinion the court refer to 1 Bev. Stat. p. 591, § 9. That section is as follows:
“No such conveyance, assignment, or transfer, nor any payment made, judgment suffered, lien created, or security given, by any such corporation when insolvent, or in contemplation of insolvency, with the intent of giving a preference to any particular creditor over other creditors of the company, shall be valid in law; and every person receiving, by means of any such conveyance, assignment, transfer, lien, security, or payment, any of the effects of the corporation, shall be bound to account therefor to its creditors or stockholders, or their trustees, as the case shall require.”
In the case of Bank v. Taylor, defendant owed the bank $35,000. One Eynd had in the bank a deposit of $44,000. The bank, being insolvent, stopped payment. The next day Eynd assigned his deposit to Taylor. Held, that Taylor could not set off the deposit against his indebtedness to the bank, as it would give a preference to one creditor of the bank after the act of insolvency. The court discuss the act of Congress of June 3, 1864, and especially section 52 of that act, which is substantially the same as section 47 of our own statute, above quoted. The court say:
“ The bank is a creature of the act, dependent upon it for all its powers, and controlled by all the restrictions which the act imposes. * * * It provides a system for closing the affairs of an insolvent bank, 'the clear design of which is to place all creditors, except the government and note holders, on an equal footing. Its purpose is to disallow preference of one creditor over another, and it denies the power to make such preference at any time after an act of insolvency.” Section 52, read in connection with section 50, “admits of no doubt that the purpose of Congress was to secure all the assets of the bank existing at the time of its act of insolvency for ratable distribution. We cannot assent to' the argument that it was intended for no more than to avoid all acts of the bank itself, all voluntary transfers by it of its notes, bonds, deposits, etc., with a view to giving preferences. Its language is general, as applicable to legal as to "voluntary transfers. But if the deposit made by Eynd can be set off against the bond debt due by Taylor to the bank, what is it but a transfer of the bond debt to the satisfaction of a creditor, thus giving him a preference? It is not contended that the bank was not prohibited from doing this, but it is insisted the transfer may be accomplished by an adversary proceeding at the suit of Eynd for the use of Taylor. It is not denied that Eynd, had he made no assignment of his claim, could not have obtained payment of the debt due him by calling upon the bank after its doors were closed, and when it suspended payments. The bank, it is conceded, was not at liberty to transfer to him either their claim against Taylor or any of their assets, or to pay him any money; and, if so, can the thing be secured by a hostile proceeding? Will the law compel a payment or a transfer which the law prohibits a debtor from making? * * * If Rynd could in no way have obtained payment of the deposit due him except through the comptroller of the currency, how could he give to Taylor, by his assignment of the deposit, any right which he did not himself possess?”
It is not pretended that the bank was not insolvent in fact at the time it suspended payment. In Bank v. Taylor the only evidence of insolvency was the suspension of the bank. In Diven v. Phelps, supra, it was held that under the statute cited a recovery might be had whether the party receiving the payment knew of the insolvency or not. Brouwer v. Harbeck, 9 N. Y. 589 ; Robinson v. Bank, 21 Id. 406.
It was held in Gillet v. Moody, 3 N. Y. 479, that stopping payment is of itself sufficient evidence of the insolvency of a bank, and when there is nothing to rebut the presumption the evidence of insolvency is conclusive.
In Dodge v. Mastin, 5 McCrary, 411, it was held that the ordinary acceptation of the term “insolvent,” when applied to a bank, means, “inability to meet liabilities in the usual course of business.”
In Mnrkson v. Hobson, 2 Dill. 330, it is said : “A bank suspending payment and closing its doors against its creditors makes to the world a proclamation of its insolvency.”
“Insolvency” is frequently defined as inability to make payments as usual, or as they mature, or according to the undertaking, or in the ordinary course of business. Webst. Unabridged Dict.; Anderson, Dict. 552; Wait, Insolv. Corp. § 28; Bayly v. Schofield, 1 Maule & S. 338; Sacry v. Lobree, 84 Cal. 41; Walton v. Bank, 13 Colo. 265, 272; In re Dalpay, 6 L. R. A. 108, and note.
"Whatever may be the rule as to when a bank may be said to be insolvent, the closing of its doors and suspension of its business must be deemed prima facie evidence of insolvency, and it is clear that such an act is “ an act of insolvency,” under section 47, above given. In the juesent case, at the time of the transfer of the certificate the bank had remained closed for a period of five days.
The judgment must be reversed, and judgment entered here for plaintiff, with costs of both courts.
The other Justices concurred. | [
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] |
McGrath, J.
One Britton had entered into a contract with the city of Grand Rapids for improving a street. Defendants were sureties upon his 'two bonds, conditioned, -one to pay all indebtedness for labor and materials, and the other for the performance of the work. In the course of the work Britton had become in arrears to his employés, and applied to plaintiff for assistance in getting the necessary money with which to liquidate this indebtedness. Plaintiff agre.ed to assist him, and to secure plaintiff Britton gave him an order upon' the city for estimates as they became due. Before the order was presented to the -city for acceptance, and before plaintiff had advanced any .money or incurred any liability, defendant Colleton, who •knew of the indebtedness, who had become suspicious of Britton, and of whom certain of the unpaid laborers had ■demanded their pay, induced the city officials to refuse to ¡accept the order given by Britton to plaintiff. Thereupon plaintiff declined to furnish the money or lend his assistance, Britton then arranged a meeting between defendants, plaintiff, and himself at the bank of which plaintiff was president. At that meeting Britton executed a note for $500, plaintiff indorsed it, and the amount was paid over to defendants, who applied it to the liquidation of .the labor claims.
The case was tried before a jury, and the court found:
"That on November 16, 1887, the parties to this action, 'together with said Britton, met, and the following arangement and agreement was made: The plaintiff was to advance $500 to the defendants, to be paid to said laborers and material-men, and the defendants were to repay the same to plaintiff; that the money was so paid to and ■received by defendants; and defendants then and there agreed to repay the same to plaintiff, which they never did, and absolutely refuse to do.”
It is insisted that the testimony does not support this finding. Plaintiff testified1 that he told defendants that, as tbe order had been countermanded, he would not have anything to do with the matter; and they said “if I would pay the money over to them they would pay me back;” that, on the strength of that, the note was made and delivered over to the bank, and the money was paid over to Colleton.
“The money was obtained on my credit. They did not say they would pay the bank, because they knew the bank was loaning it on my credit, — on my indorsement. They did not say they would pay the note if Britton didn’t; they said they would pay me. The bank loaned this money entirely on my indorsement.”
Defendants deny any promise Whatever. Britton was wholly irresponsible. The theory of plaintiff, supported bjr Britton, is that defendants were brought to the bank for this very purpose. Defendants’ theory, that they were sought out and brought there for the sole purpose of receiving the money, is unsupported by the circumstances. Their presence was not necessary to enable Britton to procure the money upon his own credit. They had frustrated his plans for getting the money, and did not in that interview withdraw their opposition to the acceptance of the order. Their action was not calculated to strengthen Britton’s credit. Plaintiff had required the order as security, and had not relied on Britton’s responsibility. Without the order plaintiff had no idemnity. The testimony of plaintiff and Britton, corroborated as it is by the circumstances, supports the finding. It is a mere play upon words to say that plaintiff did not advance the money. He caused it to be furnished.
This suit is not brought upon the note, but upon defendants’ promise. The relation of debtor and creditor did not exist between Britton and plaintiff when the promise was made by defendants. Their’s was the original promise upon which plaintiff relied. Defendants did not promise to pay the note or the bank. Plaintiff did not expect Britton to pay, and did not afterwards look to him. "When defendants made the promise, it was to pay an indebtedness to plaintiff, then originating. It was a promise to pay their own debt. Although the money obtained was used to pay a debt for which Britton was primarily responsible, yet it was one for the payment of which defendants were being importuned and were sureties. Their purpose was to promote their own interests. The consideration was therefore ample.
In Potter v. Brown, 35 Mich. 274, Potter had failed in the performance of an undertaking to become co-signer of a note, and to pay the note at maturity, in consideration of which promise Brown signed it. The note was a joint and several note, signed by Brown with Shively and Maynard, and was payable at the bank to the order of the cashier. There was evidence tending to sIioav that the note was intended to be used to pay Shively’s debt, but, as between Brown and Potter, the loan was obtained on behalf of Potter. The Court say:
“ The fact that' Potter might use the money for Shively’s benefit would not make it any the less Potter’s money, and the ultimate purpose to which it was to be applied could not control. * * * The note was a new debt, created to borrow money of the bank, * * * which Potter was to receive and advance as his own to Shively.”
The test to be applied is whether the party sought to be charged is the principal debtor, primarily liable, or whether he is only liable in case of the default of a third person; whether the party promising contracted an independent obligation of his own, or whether his position to the creditor was that of surety merely. The liability of defendants was in no sense contingent, unless we assume what defendants do not claim, viz., that their promise was to pay the note in case of Britton’s default.’ Defendants insist that they made no promise. The giving of the note to the bank was not the original promise, nor did it concern defendants how the money was procured. The credit was given to them. They promised to. pay plaintiff. That promise was an independent one. As between the parties to this suit, Britton’s liability, if any, was contingent, and his promise must be regarded as collateral, if in any event plaintiff could enforce it.
The judgment is therefore affirmed.
Hooker, C. J., Long and Grant, JJ., concurred. Montgomery, J., did not sit. | [
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] |
Grant, J.
October 14, 1892, the hoard of supervisors of TVayne county adopted a resolution appointing a committee to consider the necessity of an examination by an" expert accountant of the books and records of the board of county auditors and county treasurer, and to make such recommendation thereon as they deemed advisable. October 18, 1892, the committee reported, recommending a biennial examination by an expert accoimtant, who should report to the board of supervisors each year. ' October 26, 1892, a special committee of the supervisors were appointed by the board for that purpose, and directed to employ an expert accountant to assist them, and such committee were directed to make such examination for a period of years as they should find expedient and necessary. February 6, 1893, the relators were employed by said committee as experts, in accordance with the above resolution, and a compensation of §25 per day was agreed upon, with 8 hours to constitute a day's work; the term of such employment to be at the pleasure of the committee. Relators entered upon such employment, and continued therein till February 28, 1893, when they presented to the respondents a bill for services rendered of §343.75, which was certified by the committee to be correct. The respondents refused to allow the account, and in their answer to the petition in this case alleged three reasons for such refusal, viz.:
1. Said account is not a legal claim against the county of Wayne.
2. The services rendered were not reasonably worth the sum. charged.'
3. No moneys had been raised for the payment of any such expense.
The Constitution (article 10, § 10) reads as follows:
“The board of supervisors, or, in the county of Wayne, the board of county auditors, shall have the exclusive power to prescribe and fix the compensation for all services rendered for, and to adjust all claims against, their respective counties, and the sum so fixed or defined shall be' subject to no appeal.”
Section 6, art. 10, provides:
“A board of supervisors, consisting of one from each organized township;, shall be established in each county, with such powers as shall be prescribed by law.”
In 1889 the Legislature enacted a law relative to the powers, duties, and compensation of the board of auditors of Wayne county. 3 How. Stat. § 518b et seq. Section 8 of said act provides:
“ Said board shall have power, and they are hereby authorized—
“First, at any time to examine the books and accounts of the county treasurer and other county officers, and they shall, on demand, be exhibited to them by said officers. And, as often as they may require, the accounts and vouchers of the county treasurer shall be audited and allowed by them; and after the same shall have been audited by said board it shall not be requisite that such accounts and vouchers be again audited by the board of supervisors.”
In Attorney General v. Board of Auditors, 73 Mich. 53, this Court entered into a full and careful review of the above clause of the Constitution, examining the debates of the constitutional convention, the history of the legislation prior to the adoption of the present Constitution and subsequent thereto. The conclusion there reached was that—
“Neither legislation nor acquiescence can take away from the supervisors any of the jurisdiction given them by tbe Constitution, and not given by that instrument to the county auditors of Wayne.”
It was there also said:
“There can be no doubt that the convention meant to exclude any board but the supervisors from managing the business given into their charge by the Constitution in express terms, except in the single subject of services and claims, in Wayne county.”
But, it must be remembered, in that case the board of auditors were assuming power over a subject which was expressly conferred by the Constitution (section 9, art. 10) upon the board of supervisors. In the present case the power sought to be exercised is not among those expressly enumerated in the Constitution as belonging either to the board of auditors or to the board of supervisors.
The power conferred by the act of 1889 upon the board of auditors is very broad, and the only conclusion' from its terms is that the Legislature designed to place the accounts and books of the county treasurer under the exclusive control of that board. The last section of the act provides that “the board of supervisors of said county shall not have or exercise the power herein conferred upon said board of auditors.” The previous law contained a like provision. 1 How. Stat. § 513. The Legislature, under the Constitution, enacted a general law defining the powers and duties of the boards of supervisors of the several counties, and conferring upon them certain local administrative and legislative powers. Among the powers so conferred was the examination of the accounts of the county treasurer.
Hadar the constitutional provision in regard to Wayne county, the board of supervisors cannot fix the compensation to be paid for any services rendered the county. They may hire the services, but the board of auditors must fix the compensation, and from their decision there is no appeal. It follows that, even if the board of supervisors had the right to employ the relators, they had no right to fix their compensation.
The important question, however, still remains, whether such board possess the power to examine the books and accounts of the county treasurer, and the books and accounts kept by the board of auditors. Except as to the powers enumerated in the Constitution, the board of supervisors are not vested with any other powers or duties than those conferred upon them by statute. There is no statute giving them any control over, or any right to examine, the books kept by the board of auditors. As to them, therefore, the resolution of the board of supervisors is clearly void.
Under the general statute above cited, defining the powers of the boards of supervisors, these boards have the right to examine the books and accounts of the county treasurer. 1 How. Stat. § 478. The Constitution is silent upon this subject, and therefore such boards possess only such p>ower in this regard .as is conferred upon them by statute. This act makes no exception to the county of Wayne, but it must be construed in connection with the act prescribing the duties and powers of the board of auditors of Wayne county. Referring to that act, we find, as already shown, that the power is in express terms taken away from the board of supervisors, and limited to the board of auditors. The intent of the Legislature is clear, and its power to enact the law undoubted.
It follows that the action of the board of supervisors is void, and the writ must be denied.
The other Justices concurred. | [
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Mc.G-rath, J.
Plaintiffs bring replevin for a quantity of lumber, upon which defendant claims a lien for the saw bill.
In the spring of 1890, defendant, who was the owner of a saw-mill and the docks at Oscoda from which the lumber was replevied, entered into a verbal contract with the Potts Lumber Company to saw logs for the company for that season, at '$2.50 per thousand. The agent of the Potts Lumber Company testified that—
“The contract was that he was to have $2.50 for sawing and piling it on the docks, where the boats could get it, and, if he was compelled to put any on the shore, he had to forward it at his own expense when we needed it. There was no particular quantity mentioned that he was to cut. He was to cut all we had, and we were to give him all he could cut. He was to get in cash whatever the amount of his pay-roll would be every two weeks. He said he did not think it would amount to much more than half what the bill called for, and, with the balance, he did not need the money; that we could settle any time-in the fall with 60-day paper. He was to have enough ■every two weeks to pay his expenses, and the balance was to be settled for in the fall with 60-day paper. It was proposed to reach the amount in the fall that he had cut, by estimate.”
The defendant insisted that the fall settlement was to be in cash, and that, as the lumber was shipped, he was to be paid in full for the saw bill. As these payments were made, they were credited to the Potts Lumber Company, and the saw bill was charged up as the'lumber was shipped.
Hnder this contract, defendant cut and piled about 9,000,000 feet of lumber during the season of 1890. ■ About half of this lumber was shipped away. The lumber company failed ,in November, 1890. No settlement had been had between the parties. The total amount of the saw bill was upwards of $22,000. Defendant had received $7,247.05, and the further amount of $4,000 in drafts which had not been paid, leaving a balance unpaid at the close of the year of $14,774.77. This amount was reduced by payments by parties claiming interests in the lumber to $6,661. As the lumber was cut, it was sorted and piled, as directed by the lumber company, and each pile, as completed, was marked by the lumber company with the date, and the initials “ J. E. P.” The payments made during the season were by 30 or 60 day drafts.
In the latter part of July, 1890, plaintiffs claim to have purchased certain piles of this lumber, which were at the time estimated at between 1,200,000 and 1,300,000 feet. It was agreed that the mill culls were to be $6 per thousand; the double X, including the 12-inch, was to be $10 per thousand; and the wide was to be $12 per thousand.. It was to be inspected and delivered afterwards, and the price was agreed upon, subject to inspection as it was loaded. Three hundred thousand feet of this lumber ivas taken away. Plaintiffs gave their paper for the full amount that was claimed upon the estimate. One of the plaintiffs testified that—
“They [the lumber company] wanted that amount of paper, and I advanced it. I did not intend to advance them any more than I believed there was in my judgment. If there had been any difference, I assumed that the difference was to be adjusted on inspection. They [the lumber company, before' inspection] utterly abandoned the lumber."
These piles of lumber, so claimed to have been sold to plaintiffs, were marked by the lumber company with the initials “ J. W. H." One or more witnesses testified that the word “sold" was added, but others testified that it was not.
The question as to what the contract between defendant and the lumber company really was, was for the jury, The final balance was to be made upon estimates. This contract did not necessarily contemplate the shipment of all of the lumber before final settlement. If, as defendant claimed, the basis of the saw bill, prior to the final settlement at the close of the season, was to be the lumber scale upon shipment, it is immaterial whether all or any part of the lumber was to be shipped during the season; for, in any event, the saw bill as to the lumber shipped was to be paid as it was shipped. The contract stated by the company’s agent makes no reference to the payment of the saw bill upon the lumber actually scaled and shipped. The defendant denies that any time was to be given at the close of the season. That question Avas for the jury. Upon defendant’s theory, all of the lurilber was to remain on his docks, in his possession, until the saAv bill was paid. Such a contract Avas not inconsistent with the right to claim a lien.
In the absence of a right expressly reserved to ship before payment of the saw bill, the fact that lumber was shipped away without protest would not take away the right to assert a lien upon what remained. The right to assert a lien upon what remained was not affected by the release of what was shipped. The contract was entire and •continuing. It covered the whole season’s cut. What lumber remained was subject to lien for the whole saw bill. As was said by Lord Ellenborough in Blake v. Nicholson, 3 Maule & S. 167:
“ I think the defendant had a lien for the whole balance, the work being an entire work, in the course of prosecution, upon the same principle that a tailor who is employed to make a suit of clothes has a lien for the whole price upon any part of them.”
The fact that, as the lumber was piled, it was marked with the initials “ J. E. P.,” did not take it out of defendant’s possession. The title to this lumber was in the lumber company. Defendant was sawing other lumber. Considerable of this very lumber was piled on the bank or on the docks at shallow water, and, under the contract, defendant had a duty yet to be performed respecting it. The lumber company gave directions how it was to be piled, but defendant directed where it was to be piled. Neither party regarded the marking as having any significance as a delivery or transfer of possession.
The receipt of the dishonored paper would not operate to discharge the lien unless received as payment (Craddock v. Dwight, 85 Mich. 587, 591), and then only pro tanto. Defendant claimed only $2.50 per thousand upon plaintiff’s lumber, and, after deducting the amount of these unpaid drafts, the amount remaining due defendant exceeded the judgment.
Whether, as between the lumber company and plaintiffs, there was a transfer of the title even, may well be doubted, but there was clearly no such participation or knowledge-on the part of defendant as would operate to estop him from asserting his lien. Plaintiffs were doing business at. Toledo, Ohio. One of them visited the mill, looked over the lumber, returned to Toledo, and afterwards communicated their acceptance of the proposition made to the-lumber company. No knowledge of their acceptance, of the terms of the contract, of the time or place of delivery, was brought home to defendant. The only undisputed testimony tending to bring the knowledge of the sale to-defendant was the fact that the initials were placed upon these piles of lumber, and the further fact that defendant, had seen one of the plaintiffs at the mill while the sale-was being negotiated. There was no such sale, delivery,, transfer of title, or payment in defendant's presence as. made it his duty to assert his lien. Plaintiffs knew that, the lumber was in defendant's possession, and was being, sawed by him. Plaintiffs cannot be said to have been ignorant of defendant's rights. He had not misled them even by silence.
It is insisted that, inasmuch as the total amount paid by the lumber company, including the $4,000 in paper which had not been paid, was sufficient to pay the saw bill for-all lumber cut prior to August 1, such pajnnents should have been applied to liquidate that part of the saw bill first earned. The contract being entire, any part was subject to lien for work done on any other part. Craddock v. Dwight, supra.
We find no prejudicial error in the record, and the; judgment is affirmed.
The other Justices concurred. | [
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] |
Hooker, C. J.
On September 28, 1882, the claimant, contracted in writing with James G-ibb Eoss for the purchase of the pine timber on a large number of parcels of land, agreeing to pay therefor the sum of $65,000, $10,000' of which was paid down. He gave his two promissory notes, of $27,500 each, payable at the expiration of one and two years, respectively, with interest at the rate of 6 per cent., for the remainder. He subsequently paid $5,000 on one of these notes. The payment of the consideration was secured by a “lien on said pine timber for all moneys that might from time to time be due, owing,, or accruing due or owing, from" the purchaser, “for or on account of said purchase money, and interest thereon;" The writing further provided—
“That, if at anytime the sum of $2,000 and over shall be due and payable as aforesaid, the party of the first part,' his executors, administrators, or assigns, may, after 30 days’ notice, in writing, given to said party of the second part, or left at his last or usual place of business or abode, sell the said pine timber, or any part thereof, by auction or otherwise, as said party of the first part may deem proper, and apply the proceeds thereof towards the payment of such sums as may be due and owing, or accruing due and owing, hereunder, and interest as afore said, and to tlie payment of tlie costs, charges, and expenses of tlie sale of the same, and to pay over the surplus,” etc.
It further provided—
“That, in case of default in payment of said installments, and interest thereon, when the same shall fall due, the whole of said unpaid sum shall at once become due and payable, * * * and said party of the first part may, after 30 days’ notice, in writing, given to said party of the second part, or left _at his last or usual place of business or abode, in addition to his other remedies, have the right to enter in and upon and take possession of said timber, and every part thereof, upon said lands, and to sell the said timber, as he may deem proper, upon giving 30 days’ notice in writing, in manner hereinbefore mentioned, and pay over the surplus money,” etc.
The land was divided into two classes, from the first of which the timber was to be taken within one year, and from the second within five years, “and no longer.”
The claimant let a contract to one Sullivan to take off this timber, and he went upon the land, with the necessary implements, and built the necessary buildings, roads^ etc., and commenced the removal of the timber. He cut and removed about 6,000,000 feet, and skidded a large quantity more upon the premises. Claimant did not pay ■the amount that fell due on September 23, 1883, and two days later Ross gave him notice, in writing, that he .should take possession of the pine timber, standing and down, and, at the expiration of 30 days from the date of .service of the notice, would proceed to sell it, at auction or ■otherwise, as he might deem best, and, after applying the proceeds as provided by the contract, would pay the surplus, if there should be any, to the claimant. Ross accordingly ■sold the timber, both that which was on skids and that standing. He sold the skidded logs to Sullivan for 12.50 per 1,000, i. e. $10,000, the title not to pass until paid for. He subsequently sold the standing timber. The trial judge held, that this contract entitled claimant to two notices, of 80 days' each, and that, inasmuch as only one was giren, the sale of the timber was a conversion, and the claimant had a verdict of upwards of 86,000, from which he has. appealed.
Claimant's theory was that by taking possession of, and selling, the logs and standing timber, defendant converted it, and was liable for its value. Defendant claimed—
1. That there was no conversion at all, but, this being decided against him, then that there was no conversion as to the timber standing upon the lands from which the timber was to be cut within one year, by reason of the limitation of .time.
2. That the sale of the logs on skids was with the1 consent of Prentiss, who was willing that Sullivan should have them at this price, that he might be able to realize enough from them to compensate him for getting them out, and, therefore, that there was no conversion.
3. That the value of the standing timber did not exceed his claim against Prentiss.
The first 15 assignments of error may be dismissed with the remark that the rulings related to the question of value of the property converted, and we think no error was. committed in these rulings. They involve no legal question of interest, and a discussion of each is unnecessary.
Assignments 16 and 1? relate to the amount received by Ross, and by him credited to Prentiss, on account of the standing timber. This testimony bore upon the question of the good faith of Ross, and was properly admitted.
The next three assignments relate to requests to charge. The first and second requests were given, in substance. The third was as follows:
“Under the evidence in this case, you should find the value of all the property, both logs and trees, at the time, they were converted, and add interest at 6 per cent, from the time of the conversion; and that amount, less what. Mr. Prentiss owed Mr. Ross, with 6 per cent, interest, you will bring in as your verdict.''
Inasmuch, as there was some evidence of knowledge -and consent on the part of claimant to the sale to Sullivan, it was a question for the jury to determine. This request was therefore properly refused.
The court properly instructed the jury that the claimant, could not recover the value of the standing timber upon, the “one-year” lands, as, by the terms of the contract, he» had lost all interest in it before defendant took possession.. This disposes of assignments 21 and 34.
A large number of assignments are based upon the charge» of the court that if the jury found that the claimant had ratified the sale of'the logs to Sullivan, or waived a claim to damages therefor, no damages should be given him for their conversion. Under the proofs this was a proper question for the jury, as above stated, and we think that it was. properly submitted to them.
Upon a review of the Avhole record, Ave fail to find any error of which the claimant can complain, and the judgment Avill therefore be affirmed.
The other Justices concurred. | [
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Long, J.
The county of Montmorency is composed of the six townships of Albert, Briley, Hillman, Montmorency, Rust, and Wheatfiéld. James H. McQueen is the supervisor of the townshijD of Rust, Andrew Dickie of the township of Montmorency, and William Murphy of the township of Hillman. February 24, 1893, a special meeting of the board of supervisors of the county was called for the purpose of considering the question of the removal of the county-seat from Hillman to another place nearer the center of the county. A resolution was passed by the board, directing that the question be submitted to the electors of the several townships at the annual election to be held on April 3 following. This notice was published, and it is .alleged by the petition here that all the proceedings relative to submitting the question to the electors were regular and in compliance with the statute. The electors of the different townships voted by ballot upon the 'question, and the votes were certified by the inspectors of election to the county clerk within 10 days. On April 21 a meeting of the board of supervisors was called for the purpose of canvassing these votes. The clerk laid before the board the •statements of votes as returned by the inspectors. It is claimed by the petition that after the votes in the township of Hillman had been canvassed the respondents refused to proceed further with the canvass. The other three supervisors attempted to proceed with the canvass, and offered motions and resolutions for that purpose, but were unable to do so, and thereupon the board adjourned until July 5, 1893. A mandamus is asked to compel the board to reconvene, and canvass the votes as certified by the inspectors of election from the different townships, and determine and declare the result of the vote, and enter the result upon its records, and perform all things relative to the removal of the county-seat, as is required by section 491, How. Stat.
An order to show -cause was issued, and the three respondents answer, admitting the calling of the board of supervisors upon the question of the removal of the county-seat, and the submitting of that question to the •electors, but setting up some irregularities in the publication of the notice of election and proofs of publication, claiming that such proofs were never properly brought before the board as required by law. They admit that the board adjourned until July 5, but insist that such adjournment was for the purpose of canvassing the votes cast upon the question, and determining the result. The reason of the adjournment of the board is stated in the answer, substantially, that prior to the election the board of election commissioners caused to be prepared and printed official ballots to be ,used by the electors of the county in voting at such election for candidates for the offices of Justice of the Supreme Court, Eegents of the University, circuit judge, and county school commissioner, and upon four proposed amendments to the Constitution, as also upon the question of raising by bond the sum of $5,000 for building purposes, and of the removal of the county- seat in. accordance with the terms of the resolution adopted by the board of supervisors; that such official ballots were properly distributed by the board of election commissioners,, and placed in the hands of the inspectors of election of the different townships before the election, and were used and voted by the electors of each of said townships at such election; that in the township of Albert there were cast for such candidates 110 votes for Justice of the Supreme Court, 105 votes for Regents of the University, 110 votes for circuit judge, 117 votes for supervisors, and for the various other township officers from 103 to 110 votes. The respondents state upon information and belief that in the township of Albert there were cast at such election at least 80 votes against the removal of the county-seat; that such votes were cast by the electors properly marking such official ballots in the square opposite the words, “ A proposition to remove the county-seat to the north-west quarter of the south-west quarter of section 12, township 30 north, of range 2 east, — No;” that most of such votes so cast against the removal of the county-seat were voted by residents of the village of Lewiston, in such township, and situate about nine miles from the polling place in such township; that the electors residing in said village came early to said polling place, substantially together, and voted almost to a man before noon of that day; that such electors were informed by the inspectors of election that they were to vote upon the question of the removal of the county-seat upon the official ballot provided and furnished them by the election inspectors, but were not informed that it was intended that they should vote upon such proposition in a separate ballot-box, or in any other way than upon such official ballots; that after the electors from the village of Lewiston had gone home, the election inspectors — of which the relator was one — produced a small ballot-box, and ballots which had printed thereon, “For the removal of the county seat, — Yes;” that thereupon 23 electors residing in the northerly part of the township, who had purposely refrained from voting until that time, under an understanding with the election inspectors, came forward and voted the tickets handed them by the election inspectors, which were placed in the small box; that the election inspectors thereupon assumed to decide that the 80 votes and more cast against the removal of the county-seat upon the official ballots were illegal, and canvassed and returned to the board of supervisors only the 23 votes placed in the small box, and all of which were in favor of such removal; that these facts were made to appear to the board of supervisors by protests supported by affidavits against the canvassing of the votes returned by the inspectors of election.
It further appears by the answer that in the township of Briley, while many electors voted in a separate ballot-box, those electors also had an opportunity to vote twice upon the question; that is, once by the official ballot, and again by a separate ballot printed by the election inspectors. It is also claimed that the same state of facts existed in the township of Wheatfield.
By the answer it further appears that upon the convening of the board of supervisors they canvassed the votes from the township of Hillman, and found 6 votes cast for the removal and 117 against it. The board thereupon proceeded tox canvass the votes of the township of Albert, and, upon reading the protest and affidavits against the canvass from that township as returned by the inspectors, they suspended their canvass, and adjourned until the following day, and thereafter adjourned until July 5. The respondents contend that the board of supervisors, convened for the purpose of canvassing votes upon the question of the removal of the county-seat, are possessed of greater powers than a board of canvassers to determine the result of an election; that they have a right to determine the result of the ballots, and -whether the question of such removal is carried by the vote of a majority of the electors; that such determination, when made by the board of supervisors, is final, and cannot thereafter be questioned in any court; that, being possessed of such powers, the adjournment was had for the purpose of ascertaining by a full investigation the manner of voting, whether upon official ballots or otherwise, in these several townships, and whether the official ballots in- the township of Albert had been thrown out by the inspectors of election; that they intend to meet and determine the true result of all the votes cast; and to this end the respondents petition in their answer that an order may issue directed to the election inspectors of the township of Albert, compelling them to reconvene and recanvass the votes cast in that township upon that question, and make a further return thereof.
Under the return made by the respondents — that they had not refused to canvass the votes, but proposed to make a canvass on July 5, the day to which they have adjourned — there is no necessity for issuing the writ. Under a somewhat similar return in Belknap v. Board of Canvassers the writ was denied. Counsel on the argument of the case in this Court, however, asked us to determine some of the other questions involved, as they are of great public importance, and their settlement now would save the county and respondents considerable expense.
The answer must be taken as true. It sets up facts which, if true, would change the 'result of the election. Upon the face of the returns made by the inspectors of election the majority of the votes cast was in favor of the removal. By the return made by the respondents it appears that the majority of the votes actually cast was against the removal. " The inspectors of election in these several townships are charged with fraudulently omitting to make true and correct returns. This charge is made upon affidavits filed with the board of supervisors, who now ask that the inspectors of election be compelled to make a return to the facts set up in the answer. The respondents desire that their answer be taken as a petition for an order to show cause against the inspectors of election of the township of Albert why they have not returned a statement of the votes cast upon the “ official ballot,” so called. The true result of the ballots of those townships should be ascertained before the board of supervisors should be compelled to determine what the total vote of the county on that question is.
The decision of the . board of supervisors under the statute (How. Stat. § 491) in determining and entering upon their records the result of their canvass of. the votes cast at an election regularly held is conclusive for all purposes, and leaves no question open to contest afterwards, and the removal could not thereafter be defeated in the courts by a showing that it was carried by an omission to return all the votes cast against such removal. Attorney General v. Board of Supervisors, 33 Mich. 289; Attorney General v. Board of Supervisors, 34 Id. 211; People v. County Treasurer, 41 Id. 6; Hipp v. Board of Supervisors, 62 Id. 456; Attorney General v. Board of Canvassers, 64 Id. 612. In Hipp v. Board of Supervisors, supra, it was said by Chief Justice Campbell:
“The Constitution has not empowered this Court to settle controversies not judicial, which are very wisely left to the proper local and representative agencies of the people.”
The statute authorizing the board of supervisors to can vassithe votes and declare the result provides that when the result is ascertained by the board and entered upon their records, if it is in favor of the removal, they shall provide for such removal within one year, and the place so designated shall continue the county-seat of said county for all purposes whatsoever. It is evident from the language of this statute that the supervisors alone are to determine the final result of the vote. For the purpose of this determination they have the right to know what the will of the people is as expressed at the polls. The votes cast upon the official ballot in the form thereon printed should not be excluded by the inspectors of election. The voters of that township cannot be thus disfranchised.
The answer herein will be treated as a petition, and an order to show cause will issue, according to the prayer in the answer, against the inspectors of election of the township of Albert, and also against the inspectors of election of the townships of Briley and "Wheatfield.
The other Justices concurred.
Decided December 3, 1892, but no opinion filed. | [
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] |
McGrath, J.
Plaintiff sues for breach of promise of marriage. Defendant admits the proposal on January 1, 1886, but denies its acceptance. Plaintiff testified that the acceptance was express and immediate. Defendant insisted that plaintiff avoided the question, and gave no answer. The court instructed the jury as follows:
“No particular form of words is- necessary to establish that contract. If you findJ that he made an offer, then ,tlie acceptance, and, for -that matter, the offer, may be proved simply by actions and conduct as well as by express words; and in passing upon that question you have a right to take into account all that was said and all that was done that goes to make up, in your judgment, a proposal upon the one side, and an acceptance upon the other. * * * If in all they did and in all they said you find it was fairly understood between them that one had made an offer and the other had accepted it, that is a sufficient offer and acceptance in law. * * * The introduc tion, the invitation, and later on nearly every visit, as claimed by the parties, has been gone over, and the fact of some-presents has been testified to, how they conducted themselves towards each other when in the presence of other people and when alone. All this has been allowed to be given you so that taking the evidence given, and the claim upon each side, you may use the facts surrounding the case in arriving at what was the real talk, understanding, and agreement of these parties as to this matter; and whatever light you think any of the facts and circumstances throw upon the matter/ you have a right to take into consideration in passing upon that question.”
These instructions were erroneous. Defendant admitted an offer of marriage, and there is no claim that the offer was repeated. Plaintiff testified to an express acceptance of the proposal, and gave the language which she alleges was used by her indicating her consent. If the jury believed the story told by plaintiff as to her acceptance of the proposal, there was a contract of marriage; if they did not, there was no such contract. If, when the offer was made, it was not accepted, but a reply was avoided, and plaintiff then and there stated that there was something that she wanted to tell him, but dare not, and, although urged to disclose, did not, and that interview then ended without further reference to the proposal, as insisted by the defendant, there was no contract. The subsequent conduct of the parties was admissible as bearing upon the. truth of their respective stories as to what occurred on the evening when the offer was made, but that conduct did not tend to show a renewal or revival of the offer, and there-was no pretense that the offer was in any sense pending. The jury should have been instructed accordingly.
To make out her case, plaintiff introduced a letter from defendant, dated February 20, 1886, which contained the following:
“ I received your note yesterday, and, in reply why I don’t come up there, would say that you have never answered my proposition by giving your consent or otherwise; so I have concluded that you don’t want my company, and therefore there was no use of my coming to see you any more. I have always thought more of you than any other young lady that I have ever met with, but you always seemed to doubt my sincerity, so I have given up, and have concluded to live single all the rest of my life.”
After a concession by defendant’s counsel that all letters received from plaintiff had been destroyed, plaintiff, under objection, introduced a copy of the following reply, dated February %%, 1886, explaining that she first wrote the copy, and, thinking it did not look well enough, wrote and sent another:
"Ml Collins,—
“Dear Sir: I thought, of course, you knew your proposition was accepted, and would not have you think otherwise for the world. Now, if you can come up this evening, I would like to have you; would like to have a talk with you. Now oblige me and come. Etta.”
Defendant’s letter suggested a reply. It was in answer to an inquiry as to why he had not visited her. It was a complaint. It said to her: “ I made a proposal of marriage to you, but you gave me no encouragement or reply, but doubted my sincerity, although I thought more of you than any other lady 'that I had ever met.” She replied immediately. It is true that, ordinarily, the omission to reply to a letter is no evidence of the truth of the facts therein stated; but regard must be had to the relations of the parties, the nature of the correspondence, the questions involved. Here was a contract, it is true, but not a naked contract. A failure to respond to such a letter would have been inconsistent with the state of mind usually associated with a marriage contract. Plaintiff’s letter was the natural and almost inevitable sequence of defendant’s complaint. It was a part of the res gestee. The failure to explain could not but have been an indication of indifference at least. The letter does not attempt to set up any expresa acceptance of the proposal. In itself it has none of the earmarks of manufactured evidence. There was no error in its admission.
Objection is made to statements made by plaintiffs counsel in his closing address to the jury. In some particulars the criticism is justifiable. It is not necessary to go -into details. It is sufficient to say that the jury must get the evidence from the lips of sworn witnesses, and not from the unsworn statements of the lawyers in the argument of the case. Evans v. Town of Trenton, 20 S. W. Rep. 614.
For the reasons given the judgment must be reversed, and a new trial ordered.
Hooker, O. J., Long and Grant, JJ., concurred with McGrath, J. Montgomery, J., concurred in the result. | [
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] |
Long, J.
Complainants filed their bill in the Newaygo circuit court in chancery to set aside two deeds made by them to the defendant of certain premises in that county, on the ground of mistake in the description.
The controversy arises over the question as to what was understood to be the true boundary line at the time the deeds were executed. Complainants were tenants in common of the property, but conveyed by separate deeds. It is claimed that the lands agreed to be conveyed by complainants were bounded on the south by lands of Sarah E. Whitman and H. N. Smith, but that by an error in drafting the deeds, or by the fraud of defendant, Jewell, certain lands now claimed by Sarah E. Whitman and H. N. Smith were included in the deeds so executed by the complainants to the defendant. The court below, after a full hearing upon pleadings and proofs in open court, dismissed the bill, with costs.
We think the court below very properly dismissed the bill. The evidence is not convincing that any mutual mistake was made in describing the lands. Jewell evidently believed that he was purchasing all the lands described in the deeds, and paid the full consideration therefor. Defendant, Jewell, wrote the deeds for the complainants to execute. He claims to have put in such lands as were agreed upon. After the deeds were executed, ejectment was brought against him by certain parties who claimed to own' some portions of the land. This bill ivas filed to avoid the effect of the warranty in the deeds as to those portions, and on the hearing the complainants sought to show that Jewell fraudulently put in more land than he purchased from them. We think the evidence fails to substantiate this claim. It is unnecessary to insert the evidence here. The court below, after a full hearing in open court, was of the opinion that complainants failed to make a ease, and we concur in that opinion.
Decree is affirmed.
The other Justices concurred. | [
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] |
Grant, J.
Front street, in tbe defendant city, crosses Pine river. The old bridge having become ■ defective and unsound, the city took it down, and was contracting a new one in its place. To accommodate the public travel, the city constructed a temporary bridge across the river, outside the line of the street. This temporary bridge consisted of a scow 20 feet wide, 60 feet long, about 4| feet high, and which would carry from 75 to 80 tons. The river was navigable at this point, and the scow had, occasionally, to be swung out of position to permit the passage of vessels. Aprons were fastened by hinges to the approaches on each side, which, when the scow was in position, were dropped, onto it for the purpose of affording passage. The scow had five snubbing posts on each side, 14 feet apart, 4 by 6, and 18 inches high. Scantling, 2 by 4, were spiked on each side of these posts, and extended 18 inches above them. On top of these was spiked a railing made of scantling, with one or two boards below. Midway between these stanchions were placed posts, which were toe-nailed to the scow. The height of the. water varied with the wind from 15 to 19 inches, according to plaintiff’s evidence, and from 8 to 9 inches, according to defendant’s evidence.
Plaintiff’s servant was driving a horse and wagon loaded with 48 bushels of potatoes. He had passed over the scow, the horse and front wheels had passed up the apron, and the hind wheels were close to it, when the • horse stopped, backed up, the wagon cramped, struck the railing, which gave way, and the horse and wagon, with its contents, fell into the river, and the horse was drowned.
The negligence alleged is that the defendant “allowed, caused, and permitted the bridge to be and remain in an unsafe condition, and did allow and permit the traveled portion thereof to become out of repair, and uneven, with sudden elevations and depressions, of great height and depth, and in a floating, insecure, and unsteady condition, and to remain without a sufficient guard or rail along the sides thereof.” It then alleges that, “on account of a certain declivity in the roadway of said bridge, the horse and wagon were thrown against the rail along the side of said bridge, and said rail, being weak, insecure, and worthless, gave way, and said horse and wagon were, in consequence, precipitated into the river.”
After very clearly and fully stating the claims of each party, the court gave the following instruction:
“If you find from the evidence that the scow used as a part of the bridge leaked, and that the defendant failed to keep it properly pumped out and free from water, and allowed it to become partly filled with water, and that this caused it to settle down into the water, causing, with the load driven by plaintiff’s servant, the float to sink down low, so as to make the apron at the south end of the bridge so steep as to be dangerous and unsafe for travel, and that plaintiff’s servant attempted to pass over at the south, and was drawing with the horse a load of reasonable weight, and was in the exercise of reasonable skill and caution in the management of the horse and load, and by reason of such unsafe condition of the apron the horse was unable to draw the load over it, and was so compelled to fall back with the load, — and in so going back the wagon broke through the railing or the barrier on the side of the boat, — and was drowned, and you also find that the officers of the city had notice and knowledge of the defective condition of the bridge and railing, and thereafter had reasonable - time and opportunity to put the same in proper condition, and did not use reasonable diligence so to do, then the plaintiff would be entitled to your verdict.
“ If you find the fact to be that when the plaintiff’s horse was being driven across the bridge, on the day in question, the passage from the scow to the approach was so steep as that it was not reasonably safe, — whether the steepness was caused by the sinking of the scow from leakage, or by the receding of the water in the river, as shown by the evidence, — but on account thereof the horse was overcome by the load, when he would not have been overcome if the incline had been more gradual, and shall also find that such incline might have been made easier, on the part of the city, by the exercise of reasonable care and skill, and that this steepness and condition caused the loss of the horse, then the city would be liable, providing the plaintiff and the driver were not guilty of a want of ordinary care in the management of the horse, and reasonable time and opportunity to put the bridge in a safe condition occurred, as I llave stated.”
Verdict and judgment were for the defendant.
Only two of the errors assigned are relied upon:
1. It is insisted that the court erred in refusing to give the following request:
“And if you find that after the horse was overcome with the load, and the wagon ran back, its progress, would have been arrested by a rail of reasonable strength, and the accident prevented, and find as a fact that the rail on the scow was not reasonably strong, and on that account the wagon went over the brink, and the horse got drowned, the plaintiff would be entitled to a verdict.”
This request was correctly refused. .• It entirely left out of consideration the proximate cause of the accident, and the contributory negligence of the plaintiff's servant. The law was correctly stated in the following portion of the court's instructions:
“If you find that the backing of the horse was not occasioned by the defective condition of the bridge or apron, then it would make no difference whether the railing was sufficiently strong or not, because in that case the defendant's negligence would not be the proximate cause of the injury.” Beull v. Township of Athens, 81 Mich. 536.
3, Plaintiff's counsel presented a request giving the general definition .of negligence, which the court did not give. It was unnecessary to give to the jury this general definition of negligence. In that portion of the instruction above given, the learned circuit judge concisely drew the attention of the jury to the issues they were to determine, and told them what facts, if found, would constitute negligence, and render the defendant liable. His instructions as to contributory negligence were equally clear and explicit. We think that this is a much better practice than it is to give to the jury general definitions.
In instructing the jury as to contributory negligence, the judge said that the driver was required to exercise such care as a reasonably prudent man would be expected to exercise under the circumstances, and that the law does not require that one placed in a position of peril, where he is called upon to act with promptness, should act with perfect prudence and deliberate judgment, but that he is only required, under such circumstances, to use such degree of prudence as an ordinarily careful and prudent man would be likely to exercise under tbe same circumstances.
We find no error upon tbe record, and tbe judgment is affirmed.
Tbe other Justices concurred. | [
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Hooker, C: J.
The bill in this cause was filed to foreclose a mortgage. The premises were bought in 1868 by complainant John Stebbins and defendant John Timm, and held for a number of years by them in partnership, when complainant sold his interest in the land and personal property to defendant, who had resided upon the premises from the time of their purchase, taking a mortgage upon the land for $3,800. After making some payments upon this mortgage, and procuring an extension, defendant made default, and complainants filed this bill. The defendant now claims that he was defrauded by the complainant in their settlement which was the basis of the mortgage, and that he is not indebted to the complainants in any sum.
It is sufficient to say that a careful review of the testimony convinces us that the learned circuit judge before whom the case was tried, and who saw the witnesses, reached a just conclusion. We deem it unnecessary to discuss the facts. '
The decree of the circuit court in chancery will be affirmed.
The other Justices concurred. | [
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] |
Grant, J.
On September 5, 1888, plaintiff filed an application for letters patent of the United States for improvements in underground conduits for electrical conductors. October 12, 1888, plaintiff and defendant entered into written articles of agreement for a partnership, by which the plaintiff agreed to assign to defendant an undivided one-third interest in the invention, and the patent which might be obtained therefor, in consideration of $1,000, which the defendant agreed to pay as follows: $300 in cash as ’soon as notice was received of the allowance of the patent; a monthly payment of $30 per month for eight months from the date of allowance; and $460 on the first day of September, 1889, if said conduit should be. a practical success, and should perform the duties specified and required for such work. The agreement further provided for carrying on the business after the allowance of the letters patent, and defined the duties of each partner. These provisions are not necessary to a determination of the case. The letters were issued, and the assignment duly made to the defendant. Plaintiff admitted payments of $303.75. The defendant claimed to have paid $464. Plaintiff gave evidence tending to show that the conduit was a practical success. Defendant gave evidence tending' to show the contrary, and that the contract was abandoned by mutual consent. The court instructed the jury that, if the conduit was not a practical success, or if the contract was abandoned by mutual consent, the plaintiff could not recover. At the request of the defendant the following special question rvas presented to the jury, viz.: Do you find that the conduit was a practical success? Which question the jury answered in the affirmative.
Verdict and judgment for the plaintiff for $840.95.
1. It is first insisted by defendant that a suit at law cannot be maintained on account of the partnership relations. The sum sued for does not grow out of transactions subsequent to the formation of the partnership. It is an independent consideration, which defendant agreed to pay the plaintiff for an interest in the letters patent which were to form the basis of their subsequent partnership relations and dealings. The sum which the -defendant agreed to pay was to launch the enterprise in its very inception. This case, therefore, forms one of the exceptions to the rule that one partner cannot maintain an action at law against his copartner for work done or money expended in-the partnership. An agreement to pay money or to furnish stock for the purpose of launching the partnership is an individual engagement of each partner .to the other, and the defaulting partner may be sued in an action at law upon his agreement. It is entirely separate and distinct from the partnership accounts, and this forms the true-test in determining whether an action at law will lie by one partner against his copartner. 1 Story, Eq. Jur. § 665; Brown v. Tapscott, 6 Mees. & W. 119; Van Ness v. Forrest, 8 Cranch, 30; Currier v. Rowe, 46 N. H. 72; Neil v. Greenleaf, 26 Ohio St. 570; Howard v. France, 43 N. Y. 593; Crater v. Bininger, 45 Id. 545; Lindley, Partn. 1024.
2. The court instructed the jury that under the contract defendant was obligated to pay the $30 dollars per month, irrespective of the question whether the conduit was a practical success. In view of the fact that the jury found that it was a practical success, it becomes unimportant to determine this question. If the instruction was error, it was error without prejudice.
Judgment affirmed.
The other Justices concurred. | [
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Hooker, C. J.
John W. Zimmerman, being the owner of a parcel of land in Frankfort, Benzie county, Mich., joined with his wife, Barbara E. Zimmerman, in a power of attorney to their son, Morris M. Zimmerman. This was duly acknowledged and recorded. In 1888, John W. Zimmerman quitclaimed the premises to his wife, Barbara, and, shortly after, died. In 1890, Morris M. Zimmerman, as attorney for Barbara E. Zimmerman, conveyed the premises, except the north 100 feet, to the plaintiff, for a valuable consideration, by warranty deed. In September, '1891, Barbara E. Zimmerman quitclaimed the premises, except the north 50 feet, to the defendant Dwight G-. E. Warner. Plaintiff brought ejectment. Judgment being rendered in favor of the defendants the plaintiff appealed.
This power of attorney was given by husband and wife at the time when the title to the real estate in question vested in him, and his wife had no title to any lands, aside from her inchoate right of dower in this parcel. Counsel argue from these facts that the language of the power should be construed to cover lands subsequently acquired, while on the other hand it is contended that this power of attorney conferred no greater authority than to convey her right of dower in a deed Avhereby her husband's title should be conveyed.
We are impressed by the importance of certainty in instruments authorizing the conveyance of lands, and by the serious consequences likely to arise if it be determined that a power of attorney may mean one thing or another, as the tints of surrounding circumstances, resting on parol testimony, may vary. When placed upon record, as under our recording laws it majr be, there should be no uncertainty in its meaning, and strangers should not be required to look beyond the language used. We are aware that there are authorities which appear to attach importance to surrounding circumstances, but, beyond such as may be deemed to create an estoppel, we cannot approve them; and, inasmuch as titles to land cannot in Michigan be maintained upon an estoppel, we cannot recognize the authority of such cases. Eliminating extrinsic circumstances from the question, its solution is comparatively easy. No doctrine is better settled than that these “ powers of attorney are strictly construed, and cannot be enlarged by construction.” Wood v. Goodridge, 6 Cush. 117; Morrell v. Frith, 3 Mees. & W. 402; Neilson v. Harford, 8 Id. 806; Withington v. Herring, 5 Bing. 442; Rossiter v. Rossiter, 8 Wend. 494; Jeffrey v. Harsh, 49 Mich. 31, 58 Id. 246. The Legislature has signified its approbation- of this doctrine by restricting powers by statute, See How. Stat. chap. 215; Id. §§ 5623, 5629. Recurring to the instrument in question, we find the language to be as follows:
“John W. Zimmerman and Barbara E., his wife, * * * do make, constitute, and appoint Morris M. Zimmerman our true and lawful attorney for us, and in our name, place, and stead, and in the name, place, .and stead of either of us,' to bargain, sell, or mortgage any and all real estate belonging to us, or either of us, in any real estate in the county of Benzie,” etc.
The plain import of this language limits the power to lands then owned by the parties. Weare v. Williams, (Iowa), 52 N. W. Rep. 328. As the title then stood, Barbara E. Zimmerman had no title in the premises. She had an inchoate right of dower, which she might release by joining with her husband in a deed of the premises, or by her conveyance to the holder of the title. Rhoades v. Davis, 51 Mich. 306. It was not an interest that could be conveyed by her so long as the husband held the title to the fee. But when she received a deed from her husband, and became owner of the fee, the inchoate right of dower was extinguished by the merger, and there was nothing left for it to operate upon, so far as that parcel of land was concerned, unless we are to extend the power by construction, which, as we have seen, the courts do not favor. This land did not belong to her when the power of attorney was executed.
Some other questions are raised upon the record, but, as the case must hinge upon the power of attorney, we think it unnecessary to pass upon them.
The judgment will be affirmed.
The other Justices concurred. | [
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Montgomery, J.
This is a bill for divorce, and charges cruelty, and failure to furnish adequate support.
It is sufficient to say of the latter charge that we are not satisfied that the failure to support was shown to have been gross, wanton, or cruel, within the meaning of the statute. How. Stat. § 6229. It is undoubtedly true that the defendant is possessed of sufficient means to have justified larger expenditures for living than he appears to have been willing to make, but the Court cannot declare the failure to change habits of frugality to habits of liberality gross, wanton, or cruel. It is evident that the defendant has accumulated his property by a life-time of frugality, and complainant must have known this before her marriage, and should have understood that that habit would continue after marriage, as before.
The cruelty is alleged to have consisted in striking complainant on two occasions, and of charging her with appropriating money • belonging to defendant. It does appear that the defendant, at one „ time struck complainant with the open hand on the cheek. This, however, was fully condoned, complainant herself seeking reconciliation, and the parties have apparently lived happily since. The other charge of personal violence, we think, is not sustained by a preponderance of the evidence.
The most serious ground for complaint is the charge which defendant made against complainant of appropriating his money. It is not likely that either party understood this to be a charge of technical larceny, and, while we are not prepared to hold that defendant was justified in making the charge as he did, the evidence shows that there were in the conduct of complainant some circumstances tending to excuse the defendant for entertaining the suspicion.
On the whole, we do not think the marriage ties between these parties should be severed. The circuit judge heard the testimony in open court, and was of this opinion.
The decree will be affirmed.
The other Justices concurred. | [
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] |
Long, J.
Certiorari to review the proceedings of the-circuit judge of Chippewa county on a petition to dissolve a writ of attachment. The writ was dissolved, and the property restored to the defendant.
Defendant was carrying on business as a druggist at Sault Ste. Marie, this State, and plaintiffs were doing business at Chicago. Credit was given defendant for goods purchased between April 14 and December 21, 1892, to the amount of $1,078.68, and for which he owed at the last-named date $735.05. The attachment was sued out for $657.39, on the ground that he had assigned and disposed of his property with intent to defraud his creditors, and that the debt was fraudulently contracted. The plaintiffs, on the petition to- dissolve the writ, showed that they extended credit on the financial standing of the defendant,that in June, 1890, defendant visited Chicago, and stated to them that he desired to purchase the interest of his partner, and in order t'o do so it might be necessary to give a chattel mortgage on the stock; that they requested him, if he found it necessary so to do, to advise them at once, that they might protect themselves; that after the defendant returned home he wrote them as follows:
“Sault Ste. Marie, Mich., July 20, 1890. “Lord, Owen & Co.,
“Chicago, 111.
“Gentlemen: I have bought the half interest in the drug-store of Dr. Bacon, and now have complete control. I did not place a mortgage on the stock, as I thought I would have to. The consideration of the sale was $1,100, and I have three years to pay it in. I intend to center my trade with you as much as possible, and expect as fair dealing as we have enjoyed before. Please send me statement of all accounts due, and I will pay it up as fast as trade will permit, which will probably be in about 60 days. Trusting this will be satisfactory, I am,
“ Yours truly,
‘ James E. Wirt.
“Successor to James E. Wirt & Co.”
Defendant continued to purchase from plaintiffs until December 21, 1892. On April 14 of that year defendant executed and delivered to one Andrew Blank a chattel mortgage on his stock for the sum of §1,600. This mortgage was not filed until December 21, 1892, and the writ of attachment was issued the 28th of that month.
Defendant testified on the hearing before the circuit judge that the value of the stock at the time the attachment was issued was from three to four thousand dollars; that the mortgage was given for a bona fide consideration, to secure Mr. Blank for certain indorsements, among which was a note for the purchase of his partner’s interest in the business in 1890, but given to the bank. He further testified that he did not have the conversation, to his recollection, with the plaintiffs in Chicago, as testified by them; that when he gave the chattel mortgage he supposed Mr. Blank would put it on file, and never knew that it was not on file until December 28, 1892, the date the attachment was issued.
It is stipulated that the following requests were made by the plaintiffs, and refused by the circuit judge:
1. That the defendant has assigned and disposed of his property with intent to defraud his creditors, and that he fraudulently contracted the debt and incurred the obligation respecting which the attachment was brought.
2. That there is a total want of evidence authorizing a dissolution.
3. That the evidence makes a prima facie case for plaintiffs, sustaining the writ, and shows an entire absence of proofs legally tending to disprove the case so made.
The circuit judge decided and ruled that the attachment should be dissolved, because the evidence showed no fraud; that, inasmuch as the chattel mortgage was shown and conceded to be void, under section 6193, How. Stat., therefore the plaintiffs were not injured by it, and were not defrauded by the defendant in his contracting the debt and incurring the obligation.
We think the conclusions reached by the circuit judge cannot be reversed by this Court. He found, upon the evidence submitted, that the defendant had not assigned his property with intent to defraud creditors. There was some evidence to support this finding, and the findings are conclusive. Sheldon v. Stewart, 43 Mich. 574; Powers v. O’Brien, 44 Id. 317. Under the statute (section 6193) the chattel mortgage was void against any claims which the plaintiffs had for goods sold between the time the mortgage was given and the time of filing, so. that their rights were in no manner jeopardized by the giving of the mortgage, and they were not, in fact, defrauded; and the 'evidence of the defendant, which the circuit judge had a right to consider, had a tendency to show that he did not intend to defraud them. This was a question of fact for the determination of the circuit judge, and his finding, being supported by some evidence, cannot now be disturbed by this Court. Sheldon v. Stewart, supra.
Some question is raised by the affidavit for the writ of certiorari that the circuit judge also erred in the admission of certain evidence; but the rulings of the circuit judge on the admission of evidence cannot be reviewed on certiorari. Scholl v. Bly, 43 Mich. 401.
The writ of certiorari must be dismissed, with costs.
The other Justices concurred. | [
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Grant, J.
September 1, 1885, John 0. Mueller, Robert J. Marsh, the claimant in this suit, and two others, entered into a copartnership. Mueller and Marsh each owned a one-sixtli interest. December 3, 1885, this partnership was dissolved by mutual consent, and a new one formed by the members of the old firm, except Mr. Mueller, who retired. Marsh owned a one-sixth interest in the new firm. The business of both firms was the same. Mueller sold his interest to one of the old firm, named Riopelle, and received in payment therefor a note and mortgage for $3,200 On the same day, Mueller and Marsh executed the following agreement:
“ John C. Mueller acknowledges that the mortgage given him to-day by E. F. Riopelle on lots A and B, Riopelle Farm, amounting to $3,200, belongs, one-half of it, to Robert J. Marsh, and that half to be paid, to him as soon as realized on it, with the consent of both Mueller and Marsh.
“Robert J. Marsh acknowledges that John 0. Mueller has an equal share with him in -the interest he (R. J, Marsh) holds in the firm of Marsh & Riopelle, and also one-half in the soda apparatus stored at present in the house of1 said Marsh, 101 Catherine street, Detroit.
“ Said Robert J. Marsh promises herewith to account to said J 0. ’Mueller for all this interest as above stated, and give him his equal share as soon as he realizes upon it.”
For some reason, which does not appear, each on the same day executed to the other separate statements. The one signed by Mueller is as follows:
“The undersigned acknowledges herewith that in the mortgage given him this day by E. F. Riopelle, amounting -to $3,200, Robert J. Marsh has an interest in the same to the amount of $600, bearing interest at the rate of 6£ per cent, per annum, which will be paid to him at the expiration of the mortgage, three years hence, if not sooner realized, provided that the mortgage brings par value, or to such proportions as it may realize.
“The execution of this acknowledgment is depending on the filing and executing his (Marsh's) bond given to me this day in regard to his interest of the firm of Marsh & Riopelle, and for which is this present acknowledgment an equivalent. This acknowledgment not transferable.”
The one signed by Marsh is as follows:
“ The undersigned acknowledges herewith that I owe one-half of my interest in the firm of Marsh & Riopelle at Detroit to John C. Mueller, of the same place; that, m consideration for this interest, John O. Mueller has deeded' to me a share in the mortgage given to him by E. F. Riopelle, of $3,200, on which I have received $1,000 in cash, and a further interest of $600 when realized upon, or mortgage expires. And I herewith promise faithfully to account to said Mueller all the profits, valuables, and stock I have and may receive as my share in the said firm of Marsh & Riopelle, and turn over one-half of the same to said Mueller.
“ I further acknowledge that J. C. Mueller has an equal interest with me in the soda-water apparatus and counter stored at present on my premises, and that I will turn over to him one-half of the proceeds, when sold with his consent. This presents not transferable.”
September 8, 1886, Mr. Mueller sold and assigned this mortgage, for which he received the balance due thereon, with interest, $1,228.46. The mortgage was paid to the assignee and discharged August 17, 1888. „ Mueller died without having paid to Mr. Marsh his share. For this amount he presented his claim against the estate. Verdict and judgment in the circuit court were for the claimant.
It is contended by the learned counsel for the estate that the transaction between the parties was an exchange of the half interest in the mortgage for ,the half of Marsh’s interest in the partnership; that the two were to be partners inter sese as to the mortgage and Marsh’s interest in the firm of Marsh & Riopelle; and that, therefore, an action at law will not lie, but that the sole remedy is by bill in chancery for an accounting. We think otherwise. Mr. Mueller agreed to pay $1,600 to Marsh for one-half of his interest in the firm of Marsh & Riopelle, for which Marsh agreed to account to him. Marsh owed him nothing until the profits were received by him, or until some of the partnership property was turned over to him, and became his individual property. Mueller’s obligations did not depend upon the success or failure of the partnership business. It was not contemplated that the payment of half the amount of the mortgage should be deferred till the partnership of Marsh & Riopelle was closed. The time of payment was limited only to the time when Mueller should receive the amount of the mortgage, or to its expiration. Marsh agreed to pay Mueller only when profits were declared and received, or some of the firm assets were apportioned to him. Mueller paid a present consideration for future supposed gains and property. He stood in the same position as he would if he had given his note for the amount he agreed to pay. This case is ruled by Cook v Canny, ante, 398, and the authorities there cited.
Judgment affirmed.
The other Justices concurred. | [
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] |
Montgomery, J.
The respondent was convicted of keeping open a saloon on Sunday. She has appealed to this Court, and assigns numerous errors.
1. It is contended that the complaint charged no offense. The complaint charged that she was the proprietor of a place where spirituous and intoxicating liquors were by her kept to be sold, ''said place not being a drugstore, and that she did, on the 29th day of November, 1891, that being the first day of the week, commonly called “ Sunday,” keep her said place, wkeré said spirituous and intoxicating liquors were by her kej>t as aforesaid, oj)en, and did not keep her said place of business closed, as required by law. This charges the offense substantially as described by the- statute. Section 2283e, 3 How. Stat., provides as follows:
“All saloons, restaurants, bars, in taverns or elsewhere, and all other places, except drug-stores, where any of the liquors mentioned in this act are sold or kept for sale, either at wholesale or retail, shall be closed on the first day of the week, commonly called' ‘ Sunday.’ ”
This complaint was sufficient. People v. Robbins, 70 Mich. 130. The cases cited by corinsel in support of the objections—People v. Telford, 56 Mich. 544; People v. Haas, 79 Id. 449 — have no application, as they were prosecutions for carrying on the business without having paid the tax required by law, and were under other sections of the statute, requiring different averments.
2. Exception was taken to the refusal of the trial judge to allow a challenge to certain jurors on the ground of bias. The case of Juror Metcalf will be sufficient to illustrate the tendency of the rulings. On his examination on the voir dire he was asked:
J‘ Q. Have you any prejudice against persons engaged in the liquor traffic?
“A. I don’t know but what I have.
“ Q. You think you have, do you?
“A. Yes, sir; I might, a little of that nature.
“ Q. Well, would you, if that appears here, would that prejudice you against her, and against her testimony, for instance, if she should be sworn as a witness?
“A. No, sir; I don’t think it would.
“ Q. You think you have a prejudice against persons engaged in that business?
“A. Yes, sir.
“ Q. Why do you think you have such prejudice, and state that you would not have prejudice against the respondent if you should find that she was engaged in the same business?
“A. Well, I have always been down on liquor selling.
“ Q. I suppose you mean by'that you are down on liquor selling any way, whether it is legal or illegal; isn’t that true? •
“A. Yes, sir; it is, to a certain extent.
“ Q. Now, you don’t feel free and unbiased towards the people Avho are engaged in selling liquor? .
“A. No; I don’t know as I do.
“ Q. You have a sort of prejudice against such people?
“A. Yes, sir.'
“ Q. Noav, if that is so, why is it that you say here now that you Avould not have a prejudice against the respondent if you should learn from the evidence here, or otherAvdse, that she Avas engaged in the same business, — why would not that prejudice extend to her as it does to others engaged in that business?
“A. Well, I don’t know but what I might be a little prejudiced.
“Q. Mr. Metcalf, when I first asked you about this matter, not a very great while ago, you said you were prejudiced against people who were engaged in selling liquor. Then you further said that you would not be prejudiced against this respondent if you should learn that she was engaged in the same business. Then afterwards you said, in your last answer, that you might be prejudiced against her somewhat, or a little prejudiced against her, or words to that effect. Now, is there anything special in the case which would lessen your prejudice against this respondent particularly?
“A. I don’t know as there is. I have always been down on liquor selling.
“Q. Now, when you are sitting upon the trial of a case where' a liquor seller is interested as a defendant or a witness, you have a prejudice against that person, have you not, on account of the business in which they are engaged?
“A. Yes, sir.
“Q. And you can say, can you, that that prejudice would be removed entirely, or at all, in the case of this respondent?
“A. I don’t hardly believe it would be.”
On a further examination by the court he somewhat modified his statement, and stated, in answer to a question by the court, that if the rights of such a person came up to be adjudicated, and he was called upon to pass upon such rights as a juror, he would not be prejudiced against him by reason of the fact that he was engaged in that business; but before this answer was given he was prompted by the prosecuting attorney by the statement, “I don’t understand he has a prejudice against the person, but the business.” We feel constrained to hold, under the rulings of this Court in Theisen v. Johns, 72 Mich. 285, and Brockway v. Patterson, Id. 122, that this juror was rendered incompetent by his voir dire examination, and that the challenge for cause should have been allowed.
The other questions presented are not liable to arise upon-a new trial.
The conviction is reversed, and a new trial ordered.
The other Justices concurred.
Continued from Yol. 95. | [
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Grant, J.
Plaintiffs were lumbermen, and at the time of the accident complained of they had several teams hauling logs from the east across the defendant’s track to> the Michigamme river. The crossing was constructed by the defendant in the usual manner, for the sole convenience of the plaintiffs, and was known as the “Frost & Murphy Crossing.” Plaintiffs kept three or four men upon their logging road to keep it covered with snow, and, as the witnesses expressed it, “in good slipping condition.” On the 14th day of February, 1890, Gould, one of plaintiff’s teamsters, with a team of four horses and a load of logs, attempted to cross the track. It was a warm day, and the snow had softened so that the runners went through, and stuck, either upon the iron rails or the timbers of the crossing, or both. The horses were unable to pull the load off. Other teams of the plaintiffs were behind this one. First one span of horses was .brought from the rear team, but the three teams could not pull it off. A fourth span was then brought, but the four could not move it. The reason why the eight horses could not pull the load off is. stated by tbe plaintiffs, in tlieir brief, to be: “ The horses were unmanageable, and could not be made to pull together.” Four of plaintiffs’ employés were present at the crossing. Being unable to pull it across, they then concluded to unload some of the logs, and draw them from the track. For this purpose the teamster told one of the others, named Carey, to take his team around across the track, to get ready to draw the logs off as they were unloaded. Just as the teamster got on the load, he saw the smoke of the approaching train, which was coming around a curve. Carej1- testified:
“ Gould started to flag first, and then some of us fellows said it was too soon to flag; he had better throw off the logs; they couldn’t see him through the smoke; and he threw off the logs, and when the train came in sight he flagged them again. * * * Between the time I saw the smoke and the time that I saw the train, I took my team off, and got them around between the road to the south side of the load. It was kind of a hard place. It took me a little time. When I saw the smoke, my team was ahead of his. After I saw the smoke, I went and unhitched my team. I t.ook them around to the east side of the track. Then I took the chain off, and went in back behind the load, to put it on the log he rolled down. When I unhitched-it, his team was right over the track, and mine was right ahead a little; I should think it was a rod. In going to the east side of the track, I went, to* the north side of the load.”
Gould loosened the chain, and got one log off, but Carey had not time to draw it off the track. The teamster, who was upon the load, then waved his coat with one hand,, and his hat With the other, as a signal to the train. The. train, however, did. not stop. As it neared the -crossing the teamster jumped from his load, and tried to unhitch the horses; but the traces were taut, and he had. not time to unhook them before the train struck the load, killing two of the horses, and destroying the harnesses and sleigh. When asked how long it took to unhook a span of horses from the sleigh, he' replied, “I can do it as quick as you can say it.”
Plaintiffs rely upon the gross negligence of the defendant's engineer in not keeping a proper lookout, so that he might have seen the obstruction and signals given by the teamster in time to avoid the accident.
The train was coming from the north. It consisted of 19 cars, 14- of which were loaded' with stone and ore, weighing from 25 to 30 tons each. 2,700 feet north is a cut about 500 feet long. North of this cut, and between one mile and one mile and a quarter from the Frost & Murphy crossing, is another crossing, known as the “ Schwartz Crossing.” A short distance north of the Schwartz crossing, the railroad curves. The train was going at from 20 to 24 miles an hour, and was running under orders, a little ahead of time. From about the center of the cut to the Frost & Murphy crossing is a slight down grade. Only two witnesses who saw the accident, Gould and Carey, were sworn in behalf of the plaintiffs. They both testify that no signal was given by the teamster until the train was within a half to three-quarters of a mile of the crossing, and that the load Avas upon the track for 20 to 25 minutes before it Avas struck by the engine. Gould testified that in his opinion the train was about three-quarters of a mile distant when he Avaved his coat and liat; and Carey, that it was from a half to three-quarters of a mile.
The defendant's engineer testified that when he came into the deep cut he saw an obstruction on the track, but supposed it Avas a hand car; that he did not see the object until he AAras in the cut, and could not see it before. He was an old engineer, but this - was his second trip over this road, and he was not accustomed to seeing loads of logs. He said it may have been five seconds from the time he first saw the object till he whistled for brakes; that he whistled before he saw what the object was. He further testified:
“I endeavored to reverse the engine. The first time and the second time, it slid. As a man of 18 years' experience, I did not want to see her slide, and I reversed her back again, and as soon as she caught — And she slid again, and I reversed her ahead; and, the third time I pulled her back, I left her there. By that time, it did not take long to get down to the logs; and the third time I had her reversed, I guess, I*was looking out for my own life.''
He jumped from the engine when seven or eight car-lengths from the logs. One of the brakemen was in the cab at the time, and corroborates the testimony of the engineer. He immediately ran back over the cars, and set five brakes. Seeing that a collision was inevitable, he also jumped from the train. The cars were properly equipped, and supplied with the usual number of brakemen.
In rebuttal a witness named BeDell was produced by plaintiffs, who had been a fireman, engineer, brakeman, conductor, and trainmaster on railroads. He testified that with a good, clean rail, — meaning a rail that is not wet or dampened by fog, — and with proper assistance from the engineer, without any brakeman, and with a good brake on the caboose, he should judge they ought to stop a train of 20 loaded cars, going at the rate of 18 or 20 miles an hour, with a vacuum brake on the engine, in from 1,200 to 1,500 feet, and that, in a down grade of three-tenths of a foot in 100 feet, it was his judgment that they could stop such a train in from 2,000' to 2,500 feet. He further said that it depended somewhat upon circumstances, and that he was basing his answers upon the supposition of a nice, warm day in winter, with the track as it should be upon that kind of a day; that he had heard the testimony on the part of the defendant, and made his answers in view of those conditions. On cross-examination, he testi fied that he left railroading 10 years before; that he could not say whether ever in his experience he had stopped a train of equal weight, on level ground, running 18 or 20 miles an hour, in 1,500 feet, but he believed it could be done. He, however, said that it was a mere matter of opinion.
The court, in its instructions to the jury, said:
“It is claimed by plaintiffs that the employés o^ the defendant in charge of the train negligently, recklessly, willfully, and wantonly ran the same without keeping a proper lookout ahead, and without keeping a brakeman upon the cars, and without keeping said train under control, in view of danger. It is further claimed by plaintiffs that defendant's employés saw the said sleigh and horses on said crossing, and saw and understood the signals of the plaintiffs, in time to have stopped the same before it struck said sleigh and team, yet that the defendant did not stop, or attempt to stop, said train, but carelessly, negligently, willfully, wantonly, and recklessly ran the same into and upon said horses and said sleigh, thereby destroying them;- and this is the negligence submitted to you.''
In regard to the contributory negligence of the plaintiffs, the court used the following language:
“The court further advises you that it cannot be considered to be contributory negligence that the plaintiffs have merely not anticipated the defendant's negligence, for the plaintiffs have a right to presume that the defendant is going to act with ordinary care until- they have some notice to the contrary, when it becomes their duty to take ordinary means to avoid it; that is, such means as a prudent person ought to take.''
He further instructed them that there was no evidence of reckless conduct on the part of the servants of the defendant after the whistling or signal was given for brakes, but left it to the jury to determine whether the defendant was guilty of gross negligence and reckless conduct in not giving the signal as soon as it should have been given.
There is but little discrepancy as to the facts in this case, except it may be upon the question when the engineer whistled for brakes. Gould gave no evidence on this point upon his direct examination. On his cross-examination he testified that he heard a whistle, — one whistle, and a few sharp whistles afterwards, — and that the engineer and fireman jumped from the train “very shortly afterwards/'’ He thought the engine was from 10 to 15 rods distant when they jumped. Carey testified, on direct examination, that the train was in his sight when it whistled. On cross-examination he said he was not in position to see the train when he heard the sharp whistle, but he imagined it ivas about 20 rods distant. This is all the evidence given by the plaintiffs to show how far the train was from the crossing when the signal for brakes was given.
We do not think, under this record, that the verdict and judgment can be sustained. There is no evidence on which to base a finding of willful, wanton, and reckless conduct on the part of the employés of the defendant. There is no evidence that the engineer did not use every effort to stop the train as soon as he saw the danger. Plaintiffs gave no warning until the train was within a half or three-quarters of a mile. Could he, at the distance of a mile or a mile and a quarter, have seen the load of logs across the track, with the horses attached, there was nothing in this fact to warn him that they were fast upon the track, and unable to move. The engineer was not called upon to check the speed of his train until he was signaled, or was near enough to see the danger himself.
The learned counsel for the plaintiffs, in their, brief, say:
“The defendant was guilty of gross negligence, because, with a proper lookout, the engineer should have seen the obstruction on the track in ample time to have stopped the train. If they saw the obstruction before they reached the cut, then the inference is irresistible that they ran on with a reckless disregard of consequences.”
This might be true of trees blown across the track, or a slide of earth and stones from a hill or embankment upon it, of sufficient size to show the nature and character of the obstruction and the apparent danger. According to this contention, if an engineer sees a team standing upon a private crossing, from a half a mile to a mile distant, he must assume that the team is fast and unable to move, and at once proceed to stop his train. Such is not the law. In order to convict the defendant of willful and reckless conduct, or of gross negligence, it must certainly have been shown by the plaintiffs that the engineer knew the situation at the crossing in ample time to stop his train, and that he ran on in spite of that knowledge, and knowing the consequences that must result if he failed to stop. Den-man v. Johnston, 85 Mich. 396. “ Gross negligence,” in this class of cases, is there defined as follows:
“ The term f gross negligence ’ has been used in cases decided by this Court, and has a definite meaning, when referred to, as authorizing a recovery for a negligent injury notwithstanding the contributory negligence of the plaintiff. It means an intentional failure to perform a manifest duty, in reckless disregard of the consequences as affecting the life or property of another. It also implies a thoughtless disregard of consequences, without the exertion of any effort to avoid them.”
It does 3iot aj>pear whether plaintiffs’ employés knew that a train was about due. But this is of no consequence. All persons crossing railroads are chargeable with knowledge that trains may come at any time. Plaintiffs’ witnesses testified that they did not remove their horses from the load after they found they could not haul it off the track, nor send any one up or down the track to signal any trains that might come, because they supposed they would have no difficulty in signaling a train from that point in time to stop it. For tbe like reason, tbe teamster, who was on the load, waited to loosen the chain and roll off a log before he considered it necessaiy to wave his hat and coat as a signal of danger. The law does not justify persons in taking such risks. Plaintiffs had employés present who could have been sent either way in ample time to have avoided the accident.
The only evidence to show that the engineer and brakeman did not make every reasonable effort to stop the train is that of Mr. BeDell. His testimony is not sufficient' basis for a finding of gross negligence. The learned circuit judge said that the train was running from 20 to 2Í miles an hour, and such was the testimony. The opinion of the witness was not, therefore, based upon the evidence in the case. It is contrary to good sense to say that gross negligence may be based upon such an opinion. Carey’s testimony as to the position of the train when he first heard a whistle is utterly worthless, for he was not in position to see it, and does not pretend that he saw it. Gould’s testimony likewise fails to give any definite information as to the distance.- Assuming that the whistle he heard was the first one, does the statement that they jumped from the train “very shortly afterwards,” give any definite idea as to the distance or time? The whole thing happened in a very short time. Such testimony -is not evidence of negligence; much less, of gross negligence or willful misconduct. It is significant, also, that Gould does not testify that only one whistle was blown, or that he heard but one. His testimony is not, therefore, necessarily in conflict with that of the engineer.
The instruction as to contributory negligence said, in substance, to the jury, that no duty devolved trpon plaintiffs’ servants, other than to attempt to remove the load from the track, until they saw the approaching train, and that it was not then their duty to unhitch their horses, which could have been, done in a moment. This instruction was erroneous. It was the clear duty of the plaintiffs’ servants to unhitch the horses after they had abandoned the attempt to draw the load off the track, and saw the smoke of the approaching train. Had this been done, no substantial injury would have resulted, except that which the defendant received.
Judgment reversed, and new trial ordered.
Hooker, C. J., and Long, J., concurred with Grant, J.
McGrath and Montgomery, JJ., concurred in the result. | [
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] |
Montgomery, J.
This is certiorari to Watson Beach circuit judge, to review his decision refusing to make an order transferring the cause from St. Clair county to the county of Wayne for trial.
The showing for removal was complete. The findings of fact made by the circuit judge show that the circuit judge of St. Clair county is disqualified, and all the other facts entitling the petitioner to an order for removal. Under these circumstances it is the general yule that the circuit judge has no discretion in the matter, but is required to make the order for removal. See Grostick v. Railroad Co., ante, 495, and cases there cited.
But it is contended by the defendant in certiorari, and the circuit judge so held, that Act No. 30, Laws of 1891, being an act to reorganize the sixteenth judicial circuit, should be. given effect to suspend the operation of the general statute relating to transfer of causes depending in St. Clair county. It is urged that this statute provides a way in which parties having causes there depending may have them tried before a judge who is not disqualified, without a transfer, and that this is a remedy substituted in such cases for that furnished by the general statute, namely, a transfer of the cause. The provision of the statute imposing this duty upon the circuit judge of the sixteenth judicial circuit is as follows:
“It shall be the duty of the circuit judge of the sixteenth judicial circuit, as hereby reorganized, to aid and assist the judge of the said thirty-first judicial circuit in transacting the business of the last-named circuit so far as he can without detriment to the business of his own circuit, until January 1, A. D. 1894.”
We do not think the general statute relating to transfer of causes was suspended by this provision. It will be observed that the judge of the sixteenth circuit was not at all events to sit in St. Clair county, but only when the business of his own circuit would permit him, and he was the judge of this. The statute does not purport, in terms, to give him the right to sit in St. Clair county for the purpose of hearing cases in which the resident judge is disqualified, but his authority is general; so that it cannot, we think, be said that the Legislature had in mind a substitute for the remedy by transfer, in imposing this duty upon the judge of the sixteenth circuit. Bepeals or amendments by implication are not favored, and we think that there is no clear implication in the present case that it was the legislative intent to suspend the general statute in St. Clair county. The order should have been made as prayed.
Since this case was pending in this Court another statute has been enacted by the Legislature, which was approved May 27, 1893. This statute is broader than Act No. 30, Laws of 1891, and' purports to impose upon the circuit judge of the sixteenth circuit the duty of holding court in the thirty-first circuit whenever the judge of the latter court is disqualified. Section 3 of the act provides as follows:
“No cause shall be transferred or removed from either of said circuits on account of the disqualification of the judge thereof, except it be shown that the judges of both of said circuits are disqualified from sitting in said cause, or that they refuse or are unable to sit therein.”
This act was given immediate effect.
It is the general rule that the rights of parties on appeal are to be determined by the status of the cause at the time the appeal is taken. We think that rule should not be departed from here. Section 3 of the act, we think, is prospective in its operation. It provides that no cause shall be transferred except it be shown that the judges of both of said circuits are disqualified from sitting in such cause. It is very clear that this provision is intended to relate to a showing to be made upon the application to transfer the cause, and not to one which has already been made to the proper authorities. The effect of the order in the present case, reversing the action of the circuit judge, would be to operate as a transfer of such cause from the date of the hearing of the application. We think this proceeding ought not to be arrested, and the petitioner remitted to his remedy by making a new showing on the application for a transfer of said cause, other and different from that which was required at the time his application was properly made, containing all tbe statutory requisites.
The order of the circuit judge will be reversed, with costs against the estate. ,
The other Justices concurred. | [
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] |
Grant, J.
Defendant was the sheriff of Kent county. He caused the arrest of plaintiff August 2, 1891, which was Sunday, and imprisoned him in the county jail until the following day, when he was brought before the police judge, and charged with being disorderly, under an ordinance of the city of Grand Kapids. He was tried upon August 4, and acquitted. Defendant had no warrant for his arrest. Plaintiff then instituted this suit to recover damages for false imprisonment. The declaration is in the usual form. The plea was “ not guilty." Defendant claimed to have arrested plaintiff upon suspicion that he was guilty of a felony.
It appears from the evidence that on the Saturday evening previous an altercation had occurred upon a street car between those in charge and some passengers; that during the fight a lady had jumped from the car, and was reported to be seriously injured; and that no arrests were made that night of any of the persons engaged in the fight. The defendant testified that between 8 and 9 o’clock Sunday morning the turnkey of the jail reported to him that there was a riot on Bast Bulton street by a lot of colored people, and that a lady was killed or nearly killed; that some one had telephoned that there had been a row and a fight on a street car, and that this woman had received serious injuries in consequence of the fight, and thought the authorities ought to take these people in charge. Defendant then went to the office of the street-railway company, and saw Mr. Chapman, who had telephoned to the jail for him. Chapman gave him the names of six persons, including the plaintiff, who, he said, had been engaged in the fight, and wanted him to arrest them. Mr. Chapman told him that these persons had undertaken to run the car, and had used profane language; that the conductor undertook to eject some of them from the car; that they all pitched on the conductor, or two conductors, got one of them down, and hammered him; that this lady had gotten off of the ear, or jumped off the car, in some way; that she was in a critical condition, and presumed she would die; that he (Chapman) wanted these people taken that day, for if she died they would skip out, and there would be trouble in getting them. On the strength of this information defendant sent two deputies to arrest the plaintiff and the others who were reported to have been engaged in the affair. Defendant thought, but was not positive, that he saw an account of the affair in one of the Sunday morning papers. Plaintiff was a coachman for Dr. Barth. He was found by the officers at his customary work at the barn about 1 o’clock P. M., and promptly told them his name, whereupon he was immediately taken to jail.
The case was submitted to the jury upon the theory that if the defendant had probable cause to believe, from the information which he received, that a felony had been committed by the plaintiff, he was justified in making the arrest without a warrant. The court instructed the jury that assault with intent, to do great bodily harm, and manslaughter, were felonies. But the crime to which he specifically called their attention was obstructing the 02>era-tions and business of the street-railway company, under How. Stat. §§ 9274, 9275. Under the first section it is made a crime for any person willfully and maliciously, by any act, or by means of intimidation, to impede or obstruct the regular operation and conduct of the business of any railroad company, etc. The second section ma.kp.fi it a crime for two or more persons willfully and maliciously to combine or conspire together for the like purpose. The punishment provided by the first section may be imprisonment in the State prison for a period not exceeding one year; and, under the second section, a like imprisonment not exceeding two years. The court instructed the jury that if the facts conveyed to the defendant justified bim in believing that an offense under this statute had been committed, and that the plaintiff was guilty thereof, then he was justified in making the arrest.
The judgment must be reversed for two reasons:
1. The defense that the defendant had probable cause to believe that plaintiff had been guilty of a felony was inadmissible under the pleadings. Notice of this defense should have been given. Mr. Ohitty says:
“ Whoever assaults or imprisons another must justify himself by showing specially to the court that the act was lawful. And a plea justifying an arrest of the plaintiff upon the ground that a felony had been committed, and that there was reasonable ground to suspect and accuse the plaintiff, must distinctly state the specific reasons for suspecting the plaintiff. These are positive rules of law in order to prevent surprise on the plaintiff at the trial by the defendant then assigning various reasons and causes of imprisoning the plaintiff of which he had no notice, and which consequently he could not be prepared to meet at the trial on the plea of not guilty, on fair and equal terms with respect to the evidence and proof of facts.” 1 Chit. Pl. 501; Wade v. Chaffee, 8 R. I. 224; Boynton v. Tidwell, 19 Tex. 118.
It is manifestly of more importance to the plaintiff that he shonld be informed by the plea of the facts relied upon for his arrest without a warrant than when he is arrested upon a warrant, which he has the right to see and read when he is arrested. No case than the present better illustrates the necessity of this rule. When brought into court after his imprisonment he was charged only with a misdemeanor, viz., the violation of a city ordinance. For this offense he could not legally be arrested without a warrant. He had a right to presume that this was the offense for which he was arrested the day before.
2. When an officer in arresting fugitives from justice, and those who he honestly believes have been guilty of a felony, has acted in good faith, and after such an investigation as the circumstances permitted him to make, he will be protected in his action, and will be relieved from the consequences of a false imprisonment. This is required for the protection of society, and to prevent the escape of criminals. So far as appears upon this record, the defendant acted mainly upon the information conveyed to him by Chaptuan. If he read the newspaper article (and the judge in his charge assumed that he did), there was nothing in that to indicate that plaintiff and his companions had been guilty of a felony. The article stated that plaintiff and his companions were very drunk when they boarded the car; that they refused to pay their fare; that they used vile language, which annoyed the passengers; that they refused to get off. when asked; that they showed fight when the conductor proceeded to put them off; that the motorman came to' his rescue, and with his crank knocked one of the colored men from the car; that the conductor ejected another; that one of the colored men jumped on again; that he was bleeding profusely, and using vile and filthy language; that when he refused to get off the conductor knocked him from the car with a rock; that the passengers then commenced to jump from the car; and that among those who jumped was a lady, but that she fortunately fell away from the car, and escaped death; and that the names of the colored men were not known to the police, but that they had a good description of them, and, unless they left the city, they would probably be identified. There was nothing in this statement to show that the plaintiff and his companions had been guilty of a violation of the statutes above quoted, or of any felony whatever. There was therefore nothing in it to justify the arrest without a warrant. When the facts are conceded, probable cause is a question of law, which the court must determine. Pol. Torts, 192, 193; Perry v. Sulier, 92 Mich. 72; Huntington v. Gault, 81 Id. 155. Under this record the court should have directed the jury that there was no probable cause for the belief on the part of the defendant that plaintiff had been guilty of a felony.
For these reasons the judgment must be set aside, and .a new trial ordered.
The other Justices concurred. | [
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Long, J.
Plaintiff brought suit in an action on the case for negligence in selling a piece of rolled spiced bacon, which he alleges was spoiled, and unfit for food, and from the effects of which he became sick. The court below directed a verdict in favor of defendant, on the ground that there was no negligence shown on its part, and also that the plaintiff was guilty of contributory negligence.
We think the case should have gone to the jury. Defendant carries on a wholesale and retail business of selling meats in the city of Detroit. On July 8, 1891, plaintiff’s brother bought from it, at the retail counter, a roll of spiced bacon. It was taken to the plaintiff’s house, where he boarded, and part of it cooked for breakfast. Plaintiff’s brother had the first slice, which seemed to be all right. Later in the morning, plaintiff’s wife cut off some more from the roll, and cooked it for plaintiff. The wife noticed a peculiar odor from it, but' claims shé thought it was the spices. Plaintiff also noticed the odor, and a peculiar taste, and claims that he also thought it was the spices. Soon after eating it he became quite sick. He sent for a physician, who pronounced that he was suffering from some kind of poison. Plaintiff then examined the rest of the meat, opened it, and says that it was -very rank, and the smell of it was like that of a carcass.
A witness for plaintiff also testified that a short time previous to that she purchased some spiced bacon of defendant, cooked it,, and her husband became sick. She opened that roll, and found it spoiled. She ' returned it to one of the clerks at the retail counter, and told him of its condition. He took it back, and gave her other meat in its place.
John Stabler, a witness for plaintiff, testified that he had worked for defendant, but left its employ just before this meat was sold. He testified that he had seen old pickle dripping from the upper floor upon bacon piled upon a lower floor, and that defendant’s foreman had the bacon removed; that some rolls of bacon were badly molded and the foreman directed that they should be taken to the smokehouse, and smoked over again.
Robert Craft, a brother of the plaintiff, had worked for defendant, and was in its employ at the time the bacon in question was sold. He was asked:
fcDo you know of any spoiled meats that were sold there, over the counter, during the month of July, about the time you procured this piece of spiced bacon, that was put on the counter there for sale for private consumption, in the regular course of their business, and that was unfit for food, being spoiled and discolored?”
Under defendant’s objection, the witness was not permitted to answer. John Stabler was also asked:
“ What can you say as to whether or not you have seen meat that was spoiled, and unfit for use, prepared in this place to be sold on the market, about last summer, or the early part of last winter?”
This was also ruled out.
The answers to these questions should have been permitted. The question to Mr. Craft fixed the time the sale was made of which plaintiff complains, and, with some testimony fixing the keeping for sale of spoiled meats at about that time, the plaintiff should have been permitted to show the condition of other meat kept for sale prior to that time. The defendant- was the keeper of a retail meat-market, engaged in the business of selling meats for food, and was bound to use due care to see that the meats were fit for human consumption. Hoover v. Peters, 18 Mich. 51. It was proposed to be shown, however, that it was not only careless in preparing these meats, but its servants had actual knowledge of the unfitness of the meat for food, and yet sold it.
It was a question for the jury whether the .defendant was so careless that it should.be held responsible for. the consequences of its own acts, or the acts of its servants. A ■dealer who sells food for consumption impliedly warrants that it is fit for the purpose for which it is sold. If, in addition to this implied warranty, it is found that he was negligent in selling meat that was dangerous to those who ate it, he will be liable for the consequences of his act, if he knew it to be dangerous, or, by proper care on his part, could have known its condition. Bishop v. Weber, 139 Mass. 411 (1 N. E. Rep. 154.) These were questions for the jury, and not for the court.
The question was also for the jury to determine whether the plaintiff exercised due care on his part in partaking of the meat when he observed the odors arising from it after it ■was cooked.
The judgment must be reversed, and a new trial ordered.
3?he other Justices concurred. | [
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